1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shawna Forde, No. CV-21-00098-TUC-SHR
10 Petitioner, ORDER
11 v. DEATH PENALTY CASE
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Pending before the Court is capital habeas petitioner Shawna Forde’s “Motion to 16 Temporarily Lift Stay to Amend Second Amended Petition.” (Doc. 87.) On December 2, 17 2025, this Court granted Forde’s request to stay and hold in abeyance her Second Amended 18 Petition for a Writ of Habeas Corpus for the purpose of exhausting several claims from the 19 petition in state court. (Doc. 86.) Forde now seeks to have the stay temporarily lifted in 20 order to amend her petition to present an additional claim based on the Supreme Court’s 21 recent ruling in Andrew v. White, 604 U.S. 86 (2025). (Doc. 87.) The proposed claim, 22 Claim Thirty-Six, is attached to the motion. (Doc. 87-1.) The matter is fully briefed. 23 (Docs. 88, 89.) 24 I. Legal Standard 25 Federal Rule of Civil Procedure 15(a) allows a petitioner to amend a filing by leave 26 of the court at any time before trial—and the “court should freely give leave when justice 27 so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to permit amendment, courts 28 consider the following factors: bad faith, undue delay, prejudice to the opposing party, 1 futility of the amendment, and whether the party has previously amended his pleadings. 2 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see Foman v. Davis, 371 U.S. 178, 3 182 (1962). Of these factors, prejudice to the opposing party is the most important. 4 Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). 5 Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 6 845. To assess futility, a court necessarily evaluates whether relief may be available on 7 the merits of the proposed claim. See Caswell v. Calderon, 363 F.3d 832, 837–39 (9th Cir. 8 2004) (conducting a two-part futility analysis reviewing both exhaustion of state court 9 remedies and the merits of the proposed claim). If the proposed claims are untimely, 10 unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile. 11 See id. “The party opposing amendment bears the burden of showing prejudice.” DCD 12 Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 13 II. Discussion 14 Forde moves the Court to temporarily lift the stay and allow her to amend her 15 petition to include Claim Thirty-Six, alleging her “trial was fundamentally unfair because 16 she was convicted and sentenced to death based on evidence grounded in sex stereotypes, 17 in violation of the Eighth and Fourteenth Amendments.” (Docs. 87, 87-1.) 18 While Respondents allege the claim is procedurally defaulted through technical 19 exhaustion (Doc. 88 at 4), they do not assert they will be prejudiced by the claim, or the 20 claim is patently frivolous, and the Court determines, for purposes of this motion only, 21 there is no showing addition of the Andrew claim would be futile. 22 In Holley v. Yarborough, the Ninth Circuit held, under the Antiterrorism and 23 Effective Death Penalty Act (AEDPA), “even clearly erroneous admissions of evidence 24 that render a trial fundamentally unfair may not permit the grant of federal habeas corpus 25 relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme 26 Court.” 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). Because the 27 Supreme Court had “not yet made a clear ruling that admission of irrelevant or overtly 28 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 1 the writ,” the Ninth Circuit denied relief in Holley on a claim alleging the trial court’s 2 admission of pornographic materials resulted in a fundamentally unfair trial despite having 3 reached the conclusion the admission of the evidence in fact rendered the petitioner’s trial 4 fundamentally unfair. Id. at 1101, n.2. The Ninth Circuit explained why it was powerless 5 to issue the writ under these circumstances: 6 Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial 7 fundamentally unfair, see Williams [v. Taylor], 529 U.S. [362,] 8 375 [(2000)], it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due 9 process violation sufficient to warrant issuance of the writ. 10 Absent such “clearly established Federal law,” we cannot conclude that the state court’s ruling was an “unreasonable 11 application.” [Carey v.] Musladin, 549 U.S. [70,] 77 [(2006)]. 12 Under the strict standards of AEDPA, we are therefore without power to issue the writ on the basis of [the petitioner’s] 13 additional claims. 14 Id. at 1101. Subsequently, courts considering claims that the admission of irrelevant or 15 prejudicial evidence rendered a petitioner’s trial fundamentally unfair in violation of due 16 process have found them “foreclosed in light of the fact that there is no clearly established 17 Federal law ‘ruling that admission of irrelevant or overtly prejudicial evidence constitutes 18 a due process violation sufficient to warrant issuance of the writ.’” Allen v. McDaniel, No. 19 CV 07-1264 PHX-NVW (HCE), 2009 WL 2710197, at *17 (D. Ariz. Aug. 26, 2009) 20 (quoting Holley, 568 F.3d at 1101); see, e.g., Nava v. Diaz, 816 F. App’x 192, 193 (9th Cir. 21 2020) (mem.); Hale v. Cate, 530 F. App’x 636, 638 (9th Cir. 2013); Garza v. Yates, 472 F. 22 App’x 690, 692 (9th Cir. 2012); Walden v. Shinn, 990 F.3d 1183, 1202 (9th Cir. 2021). 23 The Supreme Court’s decision in Andrew seemingly opens this previously closed 24 door to consideration of claims alleging the trial court’s mistaken admission of irrelevant 25 evidence was so unduly prejudicial that it rendered a trial fundamentally unfair in violation 26 of a petitioner’s due process rights. See Andrew, 604 U.S. at 96 (citing Payne v. Tennessee, 27 501 U.S. 808, 825 (1991)). Thus, this Court cannot say Forde’s proposed amendment is 28 futile. 1 Additionally, while Respondents assert the claim does not relate back to Forde’s original petition for purposes of compliance with AEDPA’s imposition of a one-year statute of limitations for the filing of federal habeas corpus petitions, see 28 U.S.C. § 2244(d), they do not contest Forde’s assertion the claim, filed within one year of the Supreme Court’s decision in Andrew, is timely under the provisions of 28 U.S.C. || § 2244(d)(1)(C) or (D). (Doc. 88 at 4.) 7 Respondents, however, question why lifting the stay is necessary at this point, or 8 || why Forde cannot address this amended claim after the state court proceedings have run 9|| their course. (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shawna Forde, No. CV-21-00098-TUC-SHR
10 Petitioner, ORDER
11 v. DEATH PENALTY CASE
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Pending before the Court is capital habeas petitioner Shawna Forde’s “Motion to 16 Temporarily Lift Stay to Amend Second Amended Petition.” (Doc. 87.) On December 2, 17 2025, this Court granted Forde’s request to stay and hold in abeyance her Second Amended 18 Petition for a Writ of Habeas Corpus for the purpose of exhausting several claims from the 19 petition in state court. (Doc. 86.) Forde now seeks to have the stay temporarily lifted in 20 order to amend her petition to present an additional claim based on the Supreme Court’s 21 recent ruling in Andrew v. White, 604 U.S. 86 (2025). (Doc. 87.) The proposed claim, 22 Claim Thirty-Six, is attached to the motion. (Doc. 87-1.) The matter is fully briefed. 23 (Docs. 88, 89.) 24 I. Legal Standard 25 Federal Rule of Civil Procedure 15(a) allows a petitioner to amend a filing by leave 26 of the court at any time before trial—and the “court should freely give leave when justice 27 so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to permit amendment, courts 28 consider the following factors: bad faith, undue delay, prejudice to the opposing party, 1 futility of the amendment, and whether the party has previously amended his pleadings. 2 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see Foman v. Davis, 371 U.S. 178, 3 182 (1962). Of these factors, prejudice to the opposing party is the most important. 4 Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). 5 Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 6 845. To assess futility, a court necessarily evaluates whether relief may be available on 7 the merits of the proposed claim. See Caswell v. Calderon, 363 F.3d 832, 837–39 (9th Cir. 8 2004) (conducting a two-part futility analysis reviewing both exhaustion of state court 9 remedies and the merits of the proposed claim). If the proposed claims are untimely, 10 unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile. 11 See id. “The party opposing amendment bears the burden of showing prejudice.” DCD 12 Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 13 II. Discussion 14 Forde moves the Court to temporarily lift the stay and allow her to amend her 15 petition to include Claim Thirty-Six, alleging her “trial was fundamentally unfair because 16 she was convicted and sentenced to death based on evidence grounded in sex stereotypes, 17 in violation of the Eighth and Fourteenth Amendments.” (Docs. 87, 87-1.) 18 While Respondents allege the claim is procedurally defaulted through technical 19 exhaustion (Doc. 88 at 4), they do not assert they will be prejudiced by the claim, or the 20 claim is patently frivolous, and the Court determines, for purposes of this motion only, 21 there is no showing addition of the Andrew claim would be futile. 22 In Holley v. Yarborough, the Ninth Circuit held, under the Antiterrorism and 23 Effective Death Penalty Act (AEDPA), “even clearly erroneous admissions of evidence 24 that render a trial fundamentally unfair may not permit the grant of federal habeas corpus 25 relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme 26 Court.” 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). Because the 27 Supreme Court had “not yet made a clear ruling that admission of irrelevant or overtly 28 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 1 the writ,” the Ninth Circuit denied relief in Holley on a claim alleging the trial court’s 2 admission of pornographic materials resulted in a fundamentally unfair trial despite having 3 reached the conclusion the admission of the evidence in fact rendered the petitioner’s trial 4 fundamentally unfair. Id. at 1101, n.2. The Ninth Circuit explained why it was powerless 5 to issue the writ under these circumstances: 6 Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial 7 fundamentally unfair, see Williams [v. Taylor], 529 U.S. [362,] 8 375 [(2000)], it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due 9 process violation sufficient to warrant issuance of the writ. 10 Absent such “clearly established Federal law,” we cannot conclude that the state court’s ruling was an “unreasonable 11 application.” [Carey v.] Musladin, 549 U.S. [70,] 77 [(2006)]. 12 Under the strict standards of AEDPA, we are therefore without power to issue the writ on the basis of [the petitioner’s] 13 additional claims. 14 Id. at 1101. Subsequently, courts considering claims that the admission of irrelevant or 15 prejudicial evidence rendered a petitioner’s trial fundamentally unfair in violation of due 16 process have found them “foreclosed in light of the fact that there is no clearly established 17 Federal law ‘ruling that admission of irrelevant or overtly prejudicial evidence constitutes 18 a due process violation sufficient to warrant issuance of the writ.’” Allen v. McDaniel, No. 19 CV 07-1264 PHX-NVW (HCE), 2009 WL 2710197, at *17 (D. Ariz. Aug. 26, 2009) 20 (quoting Holley, 568 F.3d at 1101); see, e.g., Nava v. Diaz, 816 F. App’x 192, 193 (9th Cir. 21 2020) (mem.); Hale v. Cate, 530 F. App’x 636, 638 (9th Cir. 2013); Garza v. Yates, 472 F. 22 App’x 690, 692 (9th Cir. 2012); Walden v. Shinn, 990 F.3d 1183, 1202 (9th Cir. 2021). 23 The Supreme Court’s decision in Andrew seemingly opens this previously closed 24 door to consideration of claims alleging the trial court’s mistaken admission of irrelevant 25 evidence was so unduly prejudicial that it rendered a trial fundamentally unfair in violation 26 of a petitioner’s due process rights. See Andrew, 604 U.S. at 96 (citing Payne v. Tennessee, 27 501 U.S. 808, 825 (1991)). Thus, this Court cannot say Forde’s proposed amendment is 28 futile. 1 Additionally, while Respondents assert the claim does not relate back to Forde’s original petition for purposes of compliance with AEDPA’s imposition of a one-year statute of limitations for the filing of federal habeas corpus petitions, see 28 U.S.C. § 2244(d), they do not contest Forde’s assertion the claim, filed within one year of the Supreme Court’s decision in Andrew, is timely under the provisions of 28 U.S.C. || § 2244(d)(1)(C) or (D). (Doc. 88 at 4.) 7 Respondents, however, question why lifting the stay is necessary at this point, or 8 || why Forde cannot address this amended claim after the state court proceedings have run 9|| their course. (Doc. 88 at 5.) The Court agrees, and indeed, Forde asserts her motion to || temporarily lift the stay and amend her petition is for purposes of preserving her Andrew 11 |} claim under the “protective petition” provision in Pace v. DiGuglielmo, 544 U.S. 408, 416 12 || (2005), and she intends to further amend her petition after the conclusion of state court 13 || proceedings. (Doc. 87 at 2-3.) In Pace, the Supreme Court suggested petitioners who are 14]| “reasonabl[y] confus[ed]” about whether their state court filing would be timely may file a 15 || “‘protective’ petition” in federal court and request a stay until their state court remedies are exhausted. 544 U.S. at 416. Because Forde has already obtained a stay of these 17 || proceedings and intends to exhaust her Andrew claim in her state court proceedings (see 18 || Doc. 87 at 5), the Court will consider Forde’s Andrew claim “protectively” filed as 19 || contemplated in Pace, but deny Forde’s motion to amend without prejudice. Forde may refile her motion to amend her petition after the conclusion of state court proceedings. 21 Il. Conclusion 22 IT IS ORDERED Forde’s Motion to Temporarily Lift Stay to Amend the Second 23 || Amended Petition (Doc. 87) is DENIED without prejudice to refiling after the conclusion of state court proceedings. 25 IT IS FURTHER ORDERED the Court finds Claim Thirty-Six “protectively” filed as contemplated in Pace, 544 U.S. at 416. 27 Dated this 23rd day of February, 2026. 28 Ai _f-+ tt fark Honorable Scott H, Rash -4- United States District Judge