Burns v. Shinn

Opinion

1 WO 2 3 4 5

9 Johnathan Ian Burns, No. CV-21-1173-PHX-SPL

10 Petitioner, DEATH PENALTY CASE

11 v. ORDER

12 David Shinn, et al.,

13 Respondents. 14 15 Before the Court is Petitioner Johnathan Ian Burns’s motion to suspend Local Rule 16 of Civil Procedure 3.5(b). (Doc. 22.) The motion is fully briefed. (Docs. 26–27.) For the 17 following reasons, the Court denies the motion. 18 A. Background 19 Burns, a prisoner sentenced to death, must file his initial habeas petition by June 20, 20 2022,1 and an amended one by September 18, 2022. (Doc. 10 at 1; Doc. 23.) Pursuant to 21 prior Court Order, Respondents will only be required to answer the latter. (Doc. 25 at 2.) 22 Burns asks the Court to suspend Rule 3.5(b)’s 200-page limitation without setting a page 23 limit. (Doc. 22 at 1–6.) Alternatively, he asks the Court to let him exceed the page limit by 24 100 pages and suspend the rule’s requisite that he attach a proposed initial petition to his 25 motion. (Id. at 5–7.) Respondents oppose the motion, without prejudice to Burns filing a 26

27 1 The parties agree that this deadline is the date when the statute of limitations under 28 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)(A), runs. (Doc. 9 at 2.) 1 new motion that attaches a proposed initial petition. (Doc. 26.) 2 B. Discussion 3 Rule 3.5(b) imposes a 200-page limit, as relevant here, on habeas corpus petitions 4 filed by a prisoner sentenced to death. The rule provides that the Court may grant leave to 5 exceed the page limit if a party demonstrates “good cause,” files a motion to exceed on or 6 before the operative deadline, and attaches a copy of the proposed filing with the motion. 7 LRCiv 3.5(b). Local Rule 83.6 provides that the Court “may suspend” any Local Rule “for 8 good cause shown.” LRCiv 83.6. 9 Burns argues that the Court should suspend Rule 3.5(b) for his initial petition, as the 10 petition will become inoperative when he amends it. (Doc. 22 at 2; Doc. 27 at 2.) To support 11 his argument, he cites the Court’s orders suspending the rule’s page limitation in Payne v. 12 Shinn, No. CV-20-0459-TUC-JAS (D. Ariz. Sep. 15, 2021) (Doc. 26), and Forde v. Shinn, 13 No. CV-21-0098-TUC-SHR (D. Ariz. Aug. 9, 2021) (Doc. 26). (Doc. 22 at 2.) Payne and 14 Forde filed analogous motions to suspend LRCiv 3.5(b), but respondents did not oppose 15 those motions, and for that reason, and not based on the merits, the motions were granted.2 16 That is not the case here. 17 The filing of an amended petition that supersedes the initial one does not establish 18 good cause to suspend the rule, nor does it justify suspension of the requirement to attach 19 a proposed initial petition to the motion. To be sure, the initial petition remains pertinent 20 even after it is amended. See Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended 21 habeas petition . . . does not relate back (and thereby escape AEDPA’s one-year time limit) 22 when it asserts a new ground for relief supported by facts that differ in both time and type 23 from those the original pleading set forth.”). Moreover, to suspend Rule 3.5(b) in light of 24 an impending amended petition would nullify the rule for all initial capital habeas petitions. 25 See Brown v. United States, 187 F.Supp.2d 887, 891 (E.D. Mich. 2002) (courts must assess 26 motions to suspend a local rule “on a case-by-case basis”); see also Verinata Health, Inc. 27 28 2 Further, in Forde, the Court suspended the page limit as to only the petition, and not the amended petition. 1 v. Sequenom, Inc., No. C 12-00865 SI, 2014 WL 4100638, at *4 (N.D. Cal. Aug. 20, 2014) 2 (denying motion that would render local rule “a nullity”). Thus, the effect of an amended 3 petition on the initial petition does not constitute good cause to suspend Rule 3.5(b). See, 4 e.g., Miller v. Shinn, No. CV-21-00992-PHX-ROS (D. Ariz. Mar. 31, 2022) (Doc. 31 at 2). 5 Burns also asserts that the Court should suspend Rule 3.5(b)’s page limit because 6 he must “plead all possible claims thoroughly.” (Doc. 22 at 3–5) This non-case-specific 7 duty is not good cause to suspend the limitation: 8 [P]age limits exist to ensure cases can be litigated efficiently and those limits presumptively apply to every capital habeas case. Thus, should [p]etitioner 9 seek to exceed the page limits regarding his initial petition, he must identify 10 the case-specific reasons justifying his request. Merely arguing [p]etitioner filed very lengthy briefs in state court or that [p]etitioner has many claims he 11 wishes to litigate will not be sufficient. Parties in all types of litigation 12 routinely determine how to bring their filing within the page limits. Determining which arguments are viable and which are not is a core aspect 13 of counsel’s obligations. A limit of 200 pages for a capital petition is a 14 reasonable length, subject to adjustment upon a sufficient showing. 15 Miller, No. CV-21-00992-PHX-ROS (Doc. 31 at 2). To suspend Rule 3.5(b)’s page 16 limitation based on the duty to thoroughly raise claims—a duty that all death-row 17 petitioners share—would annul the limitation. See Brown, 187 F.Supp.2d at 891, supra at 18 2–3; see also Verinata Health, Inc., 2014 WL 4100638, at *4, supra at 2–3. 19 In the alternative, Burns asks the Court to let his initial petition exceed the limitation 20 by 100 pages, suspending Rule 3.5(b)’s lodging requisite because he does not currently 21 have a petition to lodge. (Doc. 22 at 5–7.) Yet he does not explain why he will file his 22 initial petition by the June 20, 2022, deadline, but cannot lodge the petition with a request 23 to exceed the page limit. As a result, he has not shown good cause to suspend the lodging 24 requisite. 25 Burns, in sum, has not shown good cause to suspend Rule 3.5(b). See Miller, No. 26 CV-21-00992-PHX-ROS (Doc. 31 at 2). Accordingly, 27 IT IS ORDERED denying Burns’s Motion to Suspend Compliance with LRCiv. 28 3.5(b)’s Page Limit (Doc. 22). 1 IT IS FURTHER ORDERED denying Burns’s request to exceed the page limit of his initial petition by 100 pages (Doc. 22 at 5—7) without prejudice. If Burns seeks to 3|| exceed Rule 3.5(b)’s 200-page limit, he must file a new motion and attach a proposed petition. 5 Dated this 31st day of May, 2022. 6

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