Nordstrom v. Shinn ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Douglas Nordstrom, No. CV-20-00248-TUC-RCC 10 Petitioner, ORDER 11 v. DEATH PENALTY CASE 12 Ryan Thornell, et al., 13 Respondents. 14 15 Before the Court is Petitioner Scott Nordstrom’s Motion for a Stay. (Doc. 91.) 16 Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), Nordstrom asks the Court to stay these 17 habeas proceedings so he can return to state court to exhaust a claim of ineffective 18 assistance of trial counsel and a claim under Simmons v. South Carolina, 512 U.S. 154 19 (1994), and Cruz v. Arizona, 598 U.S. 17 (2023). Respondents oppose a stay. (Doc. 94.) 20 I. BACKGROUND 21 In 1996, Nordstrom and Robert Jones shot and killed six people over the course of 22 two robberies in Tucson. State v. Nordstrom, 280 P.3d 1244, 1247 (Ariz. 2012). 23 Nordstrom’s brother David acted as the getaway driver in the first robbery. Id. He and 24 Nordstrom were arrested but David entered a plea agreement that required him to testify at 25 Nordstrom’s trial. Id. The jury found Nordstrom guilty of two counts of premeditated 26 murder and four counts of felony murder. Id. The trial court found three aggravating 27 circumstances: prior conviction of another offense punishable by life imprisonment or 28 1 death, pecuniary gain, and multiple homicides. Id. The court sentenced Nordstrom to death. 2 The Arizona Supreme Court affirmed the convictions and sentences. Id. 3 Before the Arizona Supreme Court issued its mandate, the United States Supreme 4 Court decided Ring v. Arizona, 536 U.S. 584 (2002). The Arizona Supreme Court vacated 5 Nordstrom’s death sentences and remanded for resentencing. Id. The State withdrew the 6 pecuniary gain and multiple homicide aggravating factors and did not seek death on the 7 felony murder convictions. Id. At the new sentencing hearing, Nordstrom waived 8 mitigation. Id. The jury sentenced him to death on the two premeditated murder 9 convictions. Id. The Arizona Supreme Court affirmed. Id. at 1253– 54. 10 After unsuccessfully pursuing post-conviction relief (“PCR”) in state court, 11 Nordstrom filed a petition for writ of habeas corpus in this Court on April 27, 2021. (Doc. 12 49.) He filed an amended petition on September 23, 2022. (Doc. 66.) 13 II. APPLICABLE LAW 14 A. Exhaustion and Procedural Default 15 Federal courts may not grant a writ of habeas corpus unless “the applicant has 16 exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). 17 The exhaustion requirement is “grounded in principles of comity” as it gives the States “the 18 first opportunity to address and correct alleged violations of state prisoner’s federal rights.” 19 Coleman v. Thompson, 501 U.S. 722, 731 (1991). 20 A claim is exhausted if (1) the petitioner has fairly presented the federal claim to the 21 highest state court with jurisdiction to consider it or (2) no state remedy remains available 22 for the claim. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). The latter form of 23 exhaustion is described as “technical exhaustion” through procedural default. See 24 Coleman, 501 U.S. at 732; Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007); 25 Woodford v. Ngo, 548 U.S. 81, 92 (2006). In Arizona, Rule 32 of the Arizona Rules of 26 Criminal Procedure provides that a petitioner is procedurally barred from relief on any 27 constitutional claim that could have been raised on appeal or in a prior PCR petition. Ariz. 28 R. Crim. P. 32.1(a); 32.2(a)(3). A petitioner generally may not return to state court to 1 exhaust a claim unless it falls within the category of claims for which a successive PCR 2 petition is permitted. See Ariz. R. Crim. P. 32.1(b)–(h), 32.2(a) & (b). The Ninth Circuit 3 has held that “Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law 4 and has been regularly and consistently applied, so it is adequate to bar federal review of a 5 claim.” Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) 6 In Coleman, the Supreme Court held that a state prisoner who fails to comply with 7 state-law procedural requirements in presenting his claims is barred by the adequate and 8 independent state ground doctrine from obtaining a writ of habeas corpus in federal court. 9 Coleman, 501 U.S. at 731–32; see Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) 10 (“An unexhausted claim will be procedurally defaulted, if state procedural rules would now 11 bar the petitioner from bringing the claim in state court.”). 12 A default may be excused only if “a constitutional violation has probably resulted 13 in the conviction of one who is actually innocent” or if the petitioner demonstrates cause 14 for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 15 To demonstrate cause, the petitioner must establish that “some objective factor external to 16 the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 17 488. To establish prejudice, a petitioner “must show not merely a substantial federal claim, 18 such that ‘the errors . . . at trial created a possibility of prejudice,’ but rather that the 19 constitutional violation ‘worked to his actual and substantial disadvantage.’” Shinn v. 20 Ramirez, 596 U.S. 366, 379–80 (2022) (quoting United States v. Frady, 456 U.S. 152, 170 21 (1982)). 22 In Martinez v. Ryan, the Supreme Court held for the first time that ineffective 23 assistance of PCR counsel may serve as cause to excuse the default of a claim of ineffective 24 assistance of trial counsel. 566 U.S. 1, 17 (2012); see also Trevino v. Thaler, 569 U.S. 413, 25 423 (2013). After the decision in Martinez, the Ninth Circuit held that federal habeas courts 26 could hear new evidence to determine whether a defaulted claim of ineffective assistance 27 of trial counsel was substantial. Dickens, 740 F.3d at 1321. 28 1 Subsequently, however, in Ramirez, the Court held that in adjudicating a Martinez 2 claim, “a federal habeas court may not conduct an evidentiary hearing or otherwise 3 consider evidence beyond the state-court record based on ineffective assistance of state 4 postconviction counsel” unless the petitioner satisfies the “stringent requirements” of 28 5 U.S.C. § 2254(e)(2). 596 U.S. at 382. Section 2254(e)(2) applies only when there has been 6 “a failure to develop the factual basis of a claim” due to “a lack of diligence, or some 7 greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 383 8 (quoting Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000)). A petitioner bears 9 “‘responsibility’ for all attorney errors during [PCR] proceedings,” including “counsel’s 10 negligent failure to develop the state postconviction record.” Id. (quoting Williams 11 (Michael), 529 U.S. at 432). In such a case, a federal court may order an evidentiary hearing 12 or otherwise expand the state-court record only if the prisoner can satisfy § 2254(e)(2).1 Id. 13 B. Stay and Abeyance 14 A district court is authorized to stay a petition in “limited circumstances” to allow a 15 petitioner to present unexhausted claims to the state court without losing the right to federal 16 habeas review pursuant to the relevant one-year statute of limitations. Rhines, 544 U.S. at 17 273–77. Under Rhines, “a district court must stay a mixed petition only if: (1) the petitioner 18 has ‘good cause’ for his failure to exhaust his claims in state court; (2) the unexhausted 19 claims are potentially meritorious; and (3) there is no indication that the petitioner 20 intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 21 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 22 The Rhines “good cause” standard does not require “extraordinary circumstances.” 23 Id. at 1024 (citing Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005)). However, courts 24 1 Under § 2254(e)(2), if the petitioner has “failed to develop the factual basis of a claim in 25 State court proceedings,” a district court cannot hold an evidentiary hearing on the claim 26 unless “(1) the claim relies on either a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review or a factual predicate that could not have 27 been previously discovered through due diligence and (2) the facts underlying the claim 28 would establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty.” 1 “must interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of the 2 Supreme Court’s instruction in Rhines that the district court should only stay mixed 3 petitions in ‘limited circumstances.’” Id. (citing Jackson, 425 F.3d at 661). Courts must 4 also “be mindful that AEDPA aims to encourage the finality of sentences and to encourage 5 petitioners to exhaust their claims in state court before filing in federal court.” Id. (citing 6 Rhines, 544 U.S. at 276–77). 7 Rhines applies only to mixed petitions—those containing both exhausted and 8 unexhausted claims. See King v. Ryan, 564 F.3d 1133, 1139–40 (9th Cir. 2009). 9 A Rhines stay would be inappropriate if the claims for which a petitioner seeks a stay are 10 technically exhausted through procedural default. See e.g., Armstrong v. Ryan, No. CV-15- 11 00358-TUC-RM, 2017 WL 1152820 (D. Ariz. March 28, 2017); White v. Ryan, No. CV- 12 09-2167PHX-FJM-LOA, 2010 WL 1416054, *12 (D. Ariz. March 16, 2010) (“Because 13 the Petition in this case contains claims that are either actually or technically exhausted, it 14 is not a mixed Petition and Rhines does not apply.”). 15 III. DISCUSSION 16 Under Rhines, the Court must determine if Nordstrom’s petition is mixed. At issue 17 are Claim 29, alleging ineffective assistance of counsel, and a new claim alleging a 18 violation of Nordstrom’s due process right to a parole ineligibility instruction under 19 Simmons, 512 U.S. at 156. 20 A. Claim 29 21 In his habeas petition, Nordstrom alleged that trial counsel performed ineffectively 22 by failing to “investigate and present evidence concerning David Nordstrom’s motive to 23 lie.” (Doc. 66 at 256.) He argued, citing an evaluation of his childhood prepared by a 24 psychologist for these habeas proceedings (Doc. 66-4), that “the family dynamic,” 25 including the lack of a kinship bond between the brothers and David’s jealousy of 26 Nordstrom, “provided plenty of motive for David to lie against his brother.” (Doc. 66 at 27 260.) According to Nordstrom, such evidence was necessary to counter the prosecutor’s 28 1 argument that David had no motive to testify against his brother other than to tell the truth. 2 (Id. at 256, 261.) 3 Respondents argue that this claim is technically exhausted and therefore Nordstrom 4 is not entitled to a stay so that he can raise the claim in state court. (Doc. 94 at 6.) The 5 Court agrees. 6 As noted above, in Arizona a petitioner is precluded from relief on any claim that 7 could have been raised on appeal or in a prior PCR petition pursuant to Rule 32.2(a)(3). 8 Only if a claim falls within certain exceptions, including newly discovered evidence and 9 actual innocence, and the petitioner can justify his omission of the claim from a prior 10 petition, may the preclusive effect of Rule 32.2(a) be avoided. See Ariz. Rule Crim. Proc. 11 32.1(b)–(h), 32.2(b). Additionally, as relevant here, if different ineffective assistance 12 allegations are raised in successive petitions, the claim in the later petition will be precluded 13 without a review of the constitutional magnitude of the claim. See Stewart v. Smith, 46 P.3d 14 1067, 1071 (Ariz. 2002) (“The ground of ineffective assistance of counsel cannot be raised 15 repeatedly.”); State v. Spreitz, 39 P.3d 525, 526 (Ariz. 2002) (“Our basic rule is that where 16 ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 17 post-conviction relief proceeding, subsequent claims of ineffective assistance will be 18 deemed waived and precluded.”) (emphasis omitted). 19 During his PCR proceedings, Nordstrom raised several other claims of ineffective 20 assistance of counsel. (See Doc. 72-5, Ex. O.) Therefore, successive claims of ineffective 21 assistance, such as Claim 29, are necessarily precluded. See Armstrong v. Ryan, No. CV- 22 15-00358-TUC-RM, 2017 WL 1152820, at *6 (D. Ariz. Mar. 28, 2017) (“Because 23 Petitioner would not be able to exhaust Claim 1(A) in a successive state petition for post- 24 conviction relief, Petitioner’s IAC claim is ‘technically’ exhausted, and a Rhines stay 25 would be inappropriate.”); see also Lopez v. Schriro, No. CV-98-0072-PHX-SMM, 2008 26 WL 2783282, at *9 (D. Ariz. July 15, 2008) (“[I]f additional ineffectiveness allegations are 27 raised in a successive petition, the claims in the later petition necessarily will be 28 precluded.”); Ellison v. Thornell, No. CV-16-08303-PCT-DWL, 2023 WL 4847599, at *6 1 (D. Ariz. July 28, 2023); Bearup v. Shinn, No. CV-16-03357-PHX-SPL, 2023 WL 2 1069686, at *4 (D. Ariz. Jan. 27, 2023). 3 Nordstrom argues that Respondents are judicially estopped from arguing technical 4 exhaustion and that the claim is not technically exhausted. (Doc. 91 at 12–16.) According 5 to Nordstrom, the Solicitor General, during his oral argument in Ramirez, stated that habeas 6 petitioners could seeks stays under Rhines to present new facts supporting their claims in 7 state court. (Doc. 91 at 10.) Nordstrom also contends that “it is not clear that the claim 8 would be denied outright by the state court.” (Id. at 14.) In support of this proposition he 9 cites Pandeli v. Shinn, No. 17-cv-01657, 2022 WL 16855196, at *5–6 (D. Ariz. Nov. 10, 10 2022), reconsideration denied, No. CV-17-01657-PHX-JJT, 2023 WL 120960 (D. Ariz. 11 Jan. 6, 2023). 12 Nordstrom’s arguments are unpersuasive. “Ramirez did not concern a Rhines stay 13 and does not bear on the issue here.” Shanklin v. Raybon, No. 6:20-CV-2020-LSC, 2023 14 WL 2356037, at *4 (N.D. Ala. Mar. 3, 2023); Ellison, 2023 WL 4847599, at *6 (“Ramirez 15 had no effect on state post-conviction proceedings or preclusion rules, nor did it render any 16 of Ellison’s claims unexhausted rather than technically exhausted.”); Shockley v. Crews, 17 No. 4:19-CV-02520-SRC, 2023 WL 8433163, at *4 (E.D. Mo. Dec. 5, 2023) (“[T]he 18 change in law wrought by [Ramirez] did nothing to change whether Shockley’s claims 19 were exhausted.”). Ramirez addressed only the issue of “whether the equitable rule 20 announced in Martinez permits a federal court to dispense with § 2254(e)(2)’s narrow 21 limits because a prisoner’s state postconviction counsel negligently failed to develop the 22 state-court record.” 596 U.S. at 371. The Court held that it does not. Id. at 381. 23 Nordstrom cites the Court’s statement in Ramirez that “when a claim is 24 unexhausted, the prisoner might have an opportunity to return to state court to adjudicate 25 the claim.” Id. at 379. “But the Supreme Court’s general observations that exhaustion 26 requires an initial review in state court and that a petitioner ‘might’ have the option of 27 returning to state court and exhausting a Strickland claim on the merits fall far short of 28 1 establishing [petitioner] has access to a second substantive review in [state court].” 2 Shanklin, 2023 WL 2356037, at *4. 3 Citing Pandeli, Nordstrom argues that after Ramirez petitioners are “entitled to ask 4 the state court to reconsider its prior decisions.” (Doc. 91 at 15.) The Court disagrees. “The 5 opportunity to reconsider state court precedent . . . is not in itself enough to grant a Rhines 6 stay.” Sandoval Mendoza v. Lumpkin, 81 F.4th 461, 482 (5th Cir. 2023). The Court further 7 notes that in Pandeli, Respondents agreed that the petition was mixed, paving the way for 8 a Rhines analysis. 2022 WL 16855196, at *3. Here Respondents argue, correctly, that the 9 petition is not mixed, containing no unexhausted claims. 10 For the reasons stated above, Claim 29 is technically exhausted through procedural 11 default. 12 B. Simmons/Cruz claim 13 Nordstrom states that when he returns to state court he intends to raise a claim that 14 his rights under Simmons were violated at his resentencing. (Doc. 91 at 16.) 15 In Simmons, the Supreme Court held that a capital defendant is entitled under due 16 process to a parole ineligibility instruction if the only sentencing possibilities are death and 17 life without the possibility of parole and the prosecution has made his future dangerousness 18 an issue. 512 U.S. at 156. In 2008, the Arizona Supreme Court held that Simmons did not 19 apply in Arizona because state law did not prohibit capital defendants from receiving a 20 release-eligible sentence. State v. Cruz, 181 P.3d 196, 2077 (Ariz. 2008) In 2016, the 21 United States Supreme Court held that Simmons did in fact apply in Arizona. Lynch v. 22 Arizona, 578 U.S. 613 (2016). The defendant in Cruz then filed a successive PCR petition 23 alleging a Simmons error and asserting that Lynch was a significant change in the law under 24 Ariz. R. Crim. P. 32.1(g). State v. Lynch, 487 P.3d 991, 995 (Ariz. 2021). The Arizona 25 Supreme Court concluded that Lynch did not represent a significant change in the law and 26 affirmed the PCR court’s denial of relief. Id. On February 22, 2023, the Supreme Court 27 issued its opinion in Cruz, rejecting the Arizona Supreme Court’s holding that Lynch was 28 not a significant change in the law under Rule 32.1(g). Cruz, 598 U.S. at 27–28. 1 At Nordstrom’s resentencing in 2009, defense counsel did not request, and the court 2 did not provide, a parole ineligibility instruction. During his PCR proceedings and in his 3 amended habeas petition, Nordstrom alleged that trial counsel performed ineffectively in 4 failing to request the instruction. (See Doc. 66 at 208.) He did not, however, raise a claim 5 that his due process rights under Simmons were violated by the lack of a parole ineligibility 6 instruction. 7 Nordstrom argues that good cause exists for his failure to exhaust a Simmons claim 8 because it was only after the decision in Cruz that a remedy became available in state court. 9 He cites several cases in which district courts have granted Rhines stays allowing 10 petitioners to return to state court to exhaust Simmons claims. (Doc. 91 at 20.) In each of 11 those cases, however, the petitioner seeking a stay had raised a Simmons claim in his habeas 12 petition.2 13 Having failed to include a Simmons claim, Nordstrom’s amended petition remains 14 exhausted and Rhines is inapplicable. See Patterson v. Thornell, No. CV-20-02068-PHX- 15 JJT, 2023 WL 3060963, at *3 (D. Ariz. Apr. 24, 2023) (“While Patterson argues that Cruz 16 provides a pathway to exhaust a Simmons claim in state court, he did not raise such a claim 17 in his habeas petition. Patterson cites no authority for the proposition that the court can 18 issue a stay under Rhines to allow a petitioner to exhaust a claim he has not raised.”); see 19 also Shackleford v. Brunsman, No. 3:10cv357, 2011 WL 665600, at *3 (S.D. Ohio, Feb.11, 20 2011) (“Shackleford’s Motion For Stay, moreover, seeks to litigate not only an 21 unexhausted claim but one not raised in his petition. In this circumstance, the stay and abey 22 procedure outlined in Rhines does not apply.”); Myers v. Haviland, No. 3:16 CV 659, 2017 23 WL 4837479, at *4 (N.D. Ohio Oct. 26, 2017) (“[T]his court has denied motions for stay 24 and abeyance when the petitioner seeks a stay in order to exhaust a new claim that is not 25 raised in his habeas petition” because such petitions are not “mixed” under Rhines). 26 27 2 In two of the cases, the stay was unopposed. See Cropper v. Thornell, No. 2:19-cv-05618, 28 Doc. 93 (D. Ariz. May 24, 2023); Reeves v. Thornell, No. 21-cv-01183, Doc. 52 (D. Ariz. March 10, 2023). ! IV. CONCLUSION 2 Nordstrom’s petition contains no unexhausted claims. It is not mixed, so Rhines is 3 inapplicable and he is not entitled to a stay. 4 Accordingly, IT IS ORDERED denying Nordstrom’s motion for a stay. (Doc. 91.) Dated this 20th day of December, 2023. 9 10 11 fl Dp 12 f KW Cabl.— Honorable Raner ©. Collins 13 senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-