Poyson v. Shinn

• Court: District Court, D. Arizona
• Decided: August 2, 2022
• Docket: 3:21-cv-08259
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Robert Allen Poyson, No. 21-8259-PCT-DLR

10 Petitioner, DEATH-PENALTY CASE

11 v. ORDER

12 David Shinn,

13 Respondent. 14 Petitioner Robert Allen Poyson, an Arizona death row inmate, has filed a second- 15 in-time Petition for Writ of Habeas Corpus. (Doc. 1.) The Court ordered Respondent to file 16 a response to Poyson’s argument that the petition was not a second or successive petition 17 requiring authorization from the Ninth Circuit under 28 U.S.C. § 2244(b)(3)(A). 18 Respondent filed a motion to dismiss, and Poyson filed a reply in opposition. (Docs. 6, 7.) 19 I. Background 20 In 1998 a jury convicted defendant Poyson on three counts of first-degree murder, 21 one count of conspiracy to commit first-degree murder, and one count of armed robbery. 22 State v. Poyson (“Poyson I”), 198 Ariz. 70, 73, 7 P.3d 79, 82 (2000). The trial court 23 sentenced him to death for the murders and to terms of imprisonment for the other offenses. 24 Id. The death sentence was supported by three aggravating factors: that each of the murders 25 was committed in expectation of pecuniary gain, see A.R.S. § 13–703(F)(5); that two of 26 the murders were especially cruel, see id. § 13–703(F)(6); and that Poyson was convicted 27 28 1 of multiple homicides committed during the same offense, see id. § 13–703(F)(8).1 Poyson 2 I, 198 Ariz. at 78, 7 P.3d at 87. Finding only one mitigating factor, cooperation with law 3 enforcement, the trial court sentenced Poyson to death. 2 Id. at 73, 81, 7 P.3d at 82, 90. 4 The Arizona Supreme Court affirmed Poyson’s convictions. Id. at 83, 7 P.2d at 92. 5 On independent review, the court found additional mitigating factors—age, family support, 6 and potential for rehabilitation—but nevertheless upheld Poyson’s death sentence because 7 the mitigating evidence was not sufficiently substantial to call for leniency. Id. at 82, 7 P.3d 8 at 91. 9 In 2010, the district court entered judgment denying Poyson’s Amended Petition for 10 Writ of Habeas Corpus. Poyson v. Ryan (Poyson II), 685 F. Supp. 2d 956 (D. Ariz. 2010). 11 In 2018, the Ninth Circuit Court of Appeals reversed, holding that “the Arizona Supreme 12 Court denied Poyson his Eighth Amendment right to individualized sentencing by applying 13 an unconstitutional causal nexus test to his mitigating evidence of a troubled childhood and 14 mental health issues.” Poyson v. Ryan (Poyson III), 879 F.3d 875, 879 (9th Cir. 2018). 15 The Ninth Circuit remanded the petition to the district court “with instructions to 16 grant the writ with respect to Poyson’s sentence unless the state, within a reasonable period, 17 either corrects the constitutional error in his death sentence or vacates the sentence and 18 imposes a lesser sentence consistent with law.” Poyson III, 879 F.3d at 896. The Ninth 19 Circuit did not reach Poyson’s contention that he was entitled to a new sentencing 20

21 1 The Court refers to Arizona’s statutes in effect at the time of Petitioner’s 22 sentencing. Arizona’s capital sentencing statutes have since been renumbered. See A.R.S. 23 §§ 13-751–59. 24 2 At the time of Poyson’s trial, Arizona law required trial judges to make all factual 25 findings relevant to the death penalty and to determine the sentence. Following the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that 26 a jury must determine the existence of facts rendering a defendant eligible for the death 27 penalty, Arizona’s sentencing scheme was amended to provide for jury determination of eligibility factors, mitigating circumstances, and sentence. 28 1 proceeding before a jury. Id. The district court granted the writ. (Case No. 04-534-PHX- 2 NVW, Doc. 92.) 3 The Arizona Supreme Court granted the State’s motion to conduct a new 4 independent review, declined to consider any new evidence developed after the original 5 proceedings, and affirmed Poyson’s death sentences. State v. Poyson (Poyson IV), 250 6 Ariz. 48, 50, 52, 475 P.3d 293, 295, 297 (2020). Poyson sought review of that decision via 7 a petition for certiorari in the United States Supreme Court, which the Court denied on 8 October 4, 2021. 9 Poyson filed the pending second-in-time petition on December 7, 2021. (Doc. 1.) 10 II. Analysis 11 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes 12 significant burdens on petitioners who try to raise new claims in a “second or successive” 13 habeas petition. See Burton v. Stewart, 549 U.S. 147, 152–53 (2007) (per curiam). First, a 14 district court must dismiss any claim presented in a second or successive habeas petition 15 that was presented in a prior petition. 28 U.S.C. § 2244(b)(1). Second, a new claim not 16 raised in a prior petition also must be dismissed unless (1) the claim rests on a new, 17 retroactive rule of constitutional law, or (2) the factual basis of the claim was not previously 18 discoverable through due diligence and the new facts establish by clear and convincing 19 evidence that no reasonable factfinder would have found the applicant guilty of the 20 underlying offense. 28 U.S.C. § 2244(b)(2). Even in the latter circumstance, leave of the 21 court of appeals is required before the successive petition may be pursued in a district court. 22 28 U.S.C. § 2244(b)(3)(A). These requirements are jurisdictional and cannot be waived. 23 Burton, 549 U.S. at 157. 24 The instant petition is a “second-in-time” petition, challenging the same conviction 25 for which Poyson previously sought federal habeas relief. Poyson has neither requested nor 26 obtained permission from the Ninth Circuit to file a second or successive petition. 27 However, this does not end the inquiry. 28 1 In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court held that a 2 second-in-time petition challenging a judgment imposed after resentencing was not 3 “second or successive” under § 2244(b)(2) where the first petition was filed prior to 4 resentencing and challenged the original judgment. Thus, where there is a “new judgment 5 intervening between the two habeas petitions,” the latter petition challenging the new 6 judgment is not second or successive. Id. at 341 (quoting Burton, 549 U.S. at 156). 7 The parties disagree about whether the Arizona Supreme Court’s independent 8 review resulted in a new, intervening judgment. The Court need not reach this issue, 9 however, because, even if there was no intervening judgment, the claims in Poyson’s 10 second-in-time petition were not ripe for review until the Arizona Supreme Court issued 11 its 2020 decision affirming the death sentences. 12 The Supreme Court “has declined to interpret ‘second or successive’ as referring to 13 all § 2254 applications filed second or successively in time, even when the later filings 14 address a state-court judgment already challenged in a prior § 2254 application.” Panetti 15 v. Quarterman, 551 U.S. 930, 944 (2007). In Panetti, for example, the Court held that 16 competency-to-be-executed claims are exempt from AEDPA’s limitation on second or 17 successive petitions because such claims generally are not ripe until after the time has run 18 to file a first habeas petition. Id. at 947; see also Slack v. McDaniel, 529 U.S. 473, 478 19 (2000) (declining to apply § 2244(b) to a second petition where the first was dismissed for 20 lack of exhaustion). 21 The Ninth Circuit has acknowledged that the reasoning of Panetti is not limited to 22 competency-for-execution claims. In United States v. Buenrostro, 638 F.3d 720, 725 (9th 23 Cir. 2011), the court observed that “[p]risoners may file second-in-time petitions based on 24 events that do not occur until a first petition is concluded” if the claims raised therein “were 25 not ripe for adjudication at the conclusion of the prisoner’s first federal habeas proceeding.” 26 In United States v. Lopez, 577 F.3d 1053, 1064 (9th Cir. 2009), the court held that the 27 factors identified by the Supreme Court in Panetti “must be considered in deciding whether 28 other types of claims that do not survive a literal reading of AEDPA’s gatekeeping 1 requirements may nonetheless be addressed on the merits.” These considerations are “(1) 2 the implications for habeas practice of reading ‘second or successive’ literally for such 3 claims, (2) whether barring such claims would advance the policies behind AEDPA’s 4 passage and (3) the Court’s pre- and post-AEDPA habeas jurisprudence, including the 5 common law abuse-of-the-writ doctrine.” Id. at 1056 (citing Panetti, 551 U.S. at 943–46). 6 “The [Panetti] Court cautioned against interpreting AEDPA’s ‘second or successive’ 7 provisions in a way that would foreclose any federal review of a constitutional claim, or 8 otherwise lead to perverse results, absent a clear indication that Congress intended that 9 result.” Id. at 1063. 10 Circuit courts have allowed prisoners to file second petitions “relating to denial of 11 parole, revocation of a suspended sentence, and the like because such claims were not ripe 12 for adjudication at the conclusion of the prisoner’s first federal habeas proceeding.” 13 Buenrostro, 638 F.3d at 725; see also Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002) 14 (declining to find petition successive “if the prisoner did not have an opportunity to 15 challenge the state’s conduct in a prior petition”); Walker v. Roth, 133 F.3d 454, 455 (7th 16 Cir. 1997) (per curiam) (“None of these new claims were raised in his first petition, nor 17 could they have been; [the petitioner] is attempting to challenge the constitutionality of a 18 proceeding which obviously occurred after he filed, and obtained relief, in his first habeas 19 petition.”). 20 Poyson raises claims arising from events that occurred after the issuance of the 21 conditional writ. The second-in-time petition raises the following claims: (1) the Arizona 22 Supreme Court applied an unconstitutional causal-nexus test to non-statutory mitigating 23 evidence concerning his mental health and dysfunctional childhood background; (2) the 24 Arizona Supreme Court failed to independently review the statutory aggravating 25 circumstances; (3) the Arizona Supreme Court failed to consider evidence that Poyson 26 suffers from Fetal Alcohol Spectrum Disorder (FASD); and (4) the cumulative prejudicial 27 effect of the errors committed by the Arizona Supreme Court had a substantial and 28 injurious effect or influence on the sentencing outcome. (Doc. 1 at 29, 42, 49, 55.) None 1 of these claims could have been raised in Poyson’s first habeas petition. The factual 2 predicate for the claims did not arise until after the Arizona Supreme Court conducted a 3 new independent sentencing review in response to the district court’s issuance of a 4 conditional writ in the first habeas proceeding. 5 Because the claims in Poyson’s second-in-time habeas petition could not have been 6 included in his first petition, they are not second or successive and he “is not obliged to 7 secure [the Ninth Circuit’s] permission prior to filing his habeas petition in the district 8 court.” Hill, 297 F.3d at 899; see also Styers v. Ryan, No. CV-12-2332-PHX-JAT, 2013 9 WL 1775981, at *5 (D. Ariz. Apr. 25, 2013) (“The factual predicate for these claims did 10 not arise until after the Arizona Supreme Court conducted a new independent sentencing 11 review in response to the district court’s issuance of a conditional writ in the first habeas 12 proceeding.”); Hedlund v. Shinn, No. CV-19-05751-PHX-DLR, 2020 WL 4933629, at *5 13 (D. Ariz. Aug. 24, 2020) (same). 14 In Styers and Hedlund, the Arizona Supreme Court independently resentenced the 15 petitioners after the Ninth Circuit found Eddings error and the district court granted a 16 conditional writ. Just as the court found in those case, the claims in Poyson’s second-in 17 time petition, arising from the new sentencing decision, “could not have been included in 18 [his] first petition.” Hedlund, 2020 WL 4933629, at *5. Therefore, they are not second or 19 successive and Poyson is not required to obtain authorization from the Ninth Circuit to file 20 his habeas petition in this court. See id. (quoting Hill, 297 F.3d at 899). 21 Respondents move to dismiss the petition under Rule 9(b) of the Rules Governing 22 Section 2254 Cases, as an “abuse of the writ.” (Doc. 6 at 8.) They argue, citing Justice 23 Kennedy’s dissent in Magwood, 561 U.S. at 349, that “[w]hether Poyson raises individual 24 claims that could not have been raised previously is immaterial because the court is to look 25 at the judgment from which the petition seeks relief and not review the petition claim by 26 claim.” (Id. at 7.) 27 Magwood addressed the question of “when a claim should be deemed to arise in a 28 ‘second or successive habeas corpus application.’” 561 U.S. at 330 (citing 28 U.S.C. §§ 1 2244(b)(1), (2)). Only when the application is second or successive must a petitioner seek 2 leave from the court of appeals before filing it with the district court. Id. at 331 (citing 28 3 U.S.C. § 2244(b)(3)(A)). By definition, however, if the application, or petition, is not 4 second or successive, it is “not subject to § 2244(b) at all.” See id. at 331. Thus, it is 5 irrelevant whether the Court reviews Poyson’s second-in-time petition in its entirety or 6 each claim individually, because § 2244(b) simply does not apply to claims that were 7 unripe at the time of filing of the first petition or application. See id. at 331–32. (citing 8 Panetti, 551 U.S. at 944, 947; Stewart v. Martinez-Villareal, 523 U.S. 637, 643 (1998); 9 Slack v. McDaniel, 529 U.S. 473, 478, 487 (2000)). 10 The Panetti factors favor a conclusion that Poyson’s petition is not second or 11 successive. Reading the “second or successive” provisions literally would foreclose federal 12 court review of a state court’s new independent review of a death sentence that followed 13 the filing of a first federal habeas petition. Poyson would have no way to challenge any 14 constitutional violation that occurred in the Arizona Supreme Court’s 2020 independent 15 review of his death sentence. Nor would barring the petition further AEDPA’s requirement 16 that a petitioner assert all claims that can be raised at the time of the petition. See Mitchell 17 v. United States, No. CR0101062001PCTDGC, 2020 WL 4940909, at *3 (D. Ariz. Aug. 18 22, 2020). 19 Finally, Respondents contend that Poyson’s second-in-time petition simply repeats 20 the meritless arguments made in his prior petition. (Doc. 6 at 8–9. ) The Court has already 21 addressed the contention that the claims have been previously raised. As for the validity of 22 the claims, “we must not confuse lack of substantive merit with lack of jurisdiction.” 23 Mitchell, 2020 WL 4940909, at *3 n.3 (quoting Garza v. Lappin, 253 F.3d 918, 923 (7th 24 Cir. 2001)). 25 Based on the foregoing, 26 IT IS ORDERED denying Respondents’ motion to dismiss. (Doc. 6.) 27 28 1 IT IS FURTHER ORDERED that Respondents shall file an answer to Poyson’s petition no later than September 27, 2022. Poyson shall file his reply no later than October 25, 2022. 4 Dated this Ist day of August, 2022. 5 6 pues le 9 Upied States Dictria Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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