1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jonathan L. Sosnowicz, 10 Petitioner, No. CV-20-0040-PHX DGC (MTM) 11 v. ORDER 12 David Shinn, et al.,
13 Respondents. 14 15
16 17 In January 2020, petitioner Jonathan Sosnowicz filed a habeas corpus petition 18 pursuant to 28 U.S.C. § 2254. Doc. 1. In June 2021, the Court issued an order denying 19 Sosnowicz’s petition with respect to all claims except a single ineffective assistance of 20 counsel (“IAC”) claim. Doc. 25. The Court withheld ruling on that claim until the record 21 could be further developed through an evidentiary hearing. See id. The government has 22 now filed a motion to stay this action pending a Supreme Court decision which may impact 23 the Court’s ability to consider evidence not in the state court record. Doc. 28. Sosnowicz 24 has responded. Doc. 29. For reasons stated below, the Court will grant the motion to stay. 25 A. Background. 26 Sosnowicz was convicted of second-degree murder and three counts of aggravated 27 assault in September 2010. Doc. 25 at 1. He claims that he rejected a favorable plea offer 28 because his trial counsel did not explain that he could be convicted of second-degree 1 murder for reckless conduct. Id. at 3. Sosnowicz’s trial counsel IAC claim was 2 procedurally defaulted because he never timely raised it during his post-conviction review 3 (“PCR”) proceedings in state court. Id. at 4. Sosnowicz argued that his default should be 4 excused under Martinez v. Ryan, 566 U.S. 1 (2012), which recognizes a limited exception 5 to procedural default where PCR counsel fails to raise a “substantial” trial-counsel IAC 6 claim in the initial review. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). After 7 reviewing the settlement conference transcript and other state court records, the Court 8 decided that additional evidence is needed to determine whether Sosnowicz’s IAC claim is 9 substantial. Doc. 25 at 20; Detrich v. Ryan, 740 F. 3d 1237, 1245 (9th Cir. 2013). 10 In May 2021, the Supreme Court granted certiorari in Shinn v. Ramirez, No. 20- 11 1009, to address whether, in the context of a Martinez claim, the text of the Antiterrorism 12 and Effective Death Penalty Act of 1996 (“AEDPA”) allows federal courts to develop and 13 consider evidence not in the state court record when assessing the merits of trial counsel 14 IAC claims. In answering this question, the Supreme Court likely will also clarify whether 15 federal courts can consider such evidence at the Martinez gateway stage to determine cause 16 and prejudice for procedural default. Jones v. Shinn, 971 F.3d 1133, 1142 (9th Cir. 2020) 17 (“There is no point in conducting a Martinez hearing to discover ‘cause’ to excuse a 18 procedural default if the defaulted claim will inevitably fail on the merits because (due to 19 the other procedural obstacle) evidence outside the state record cannot be considered in 20 any event.”) (Collins, J., dissenting). The government argues that the Court should stay 21 this case until Shinn is decided. 22 B. Legal Standard. 23 “A district court has discretionary power to stay proceedings in its own court.” 24 Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North 25 American Co., 299 U.S. 248, 254 (1936)). The Court must weigh competing interests, 26 including “the possible damage which may result from the granting of a stay, the hardship 27 or inequity which a party may suffer in being required to go forward, and the orderly course 28 of justice measured in terms of the simplifying or complicating of issues, proof, and 2 1 questions of law which could be expected to result from a stay.” Id. (quoting CMAX, Inc. 2 v. Hall, 300 F.2d 265 (9th Cir. 1962)). If there is a fair possibility that the stay will work 3 damage to someone, the party seeking the stay “must make out a clear case of hardship or 4 inequity.” Id. (quoting Landis, 299 U.S. at 255). In habeas cases, “special considerations” 5 are implicated “that place unique limits on a district court’s authority to stay a case in the 6 interests of judicial economy.” Yong v. INS, 208 F.3d 1116, 1120 (9th Cir. 2000). 7 C. Discussion. 8 The government contends that judicial efficiency justifies staying this case because 9 the Supreme Court’s decision in Shinn could render a Martinez evidentiary hearing 10 unnecessary, and a limited stay will not prejudice Sosnowicz. Doc. 28 at 4-5. Sosnowicz 11 responds that habeas petitioners have a “clear and indisputable right to have [their] 12 petition[s] expeditiously heard and decided.” Doc. 29 at 4 (quoting Johnson v. Rogers, 917 13 F.2d 1283, 1285 (10th Cir. 1990)). 14 The Court concludes that this is one of the rare instances where a stay is warranted. 15 Shinn will address whether district courts can conduct Martinez evidentiary hearings. It 16 would waste resources for all involved to prepare for and conduct such a hearing, only to 17 have the Supreme Court decide a few months later that such a hearing is impermissible. 18 The Court is mindful of the Ninth Circuit’s prescription that habeas petitions 19 implicate “special considerations” limiting the Court’s ability to stay a case for judicial 20 efficiency. Yong, 208 F.3d at 1120. But Yong is distinguishable. There, the requested stay 21 could have “remain[ed] in effect for a lengthy period of time, perhaps . . . years.” Id. at 22 1121. Here, the Supreme Court will issue a decision no later than June 2022. 23 The stay poses no prejudice to Sosnowicz, who has served nearly 11 years of an 24 approximately 30-year sentence and is scheduled for release in February 2038. See Ariz. 25 Dep’t of Corrections, Inmate Datasearch, https://corrections.az.gov/public-resources/ 26 inmate-datasearch (last visited August 11, 2021).1 Should the Court grant relief on
27 1 Sosnowicz received 22-years for second-degree murder, and three concurrent 8.5- 28 year terms for aggravated assault, running consecutively to the murder sentence. Doc. 25. 3 ! Sosnowicz’s IAC claim, the state court will consider “whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Lafler v. Cooper, 566 U.S. 156, 170-71 (2012). The 4 government’s plea offer would have allowed Sosnowicz’s 22-year murder sentence to run ° concurrently with, rather than consecutively to, his 8.5-year sentences for aggravated 6 assault. See Doc. 15-1 at 79-80. If the state court allows Sosnowicz to accept the same terms, any new sentence on the murder claim, even if concurrent to the assault sentences, 8 likely will not expire for several years. The Court finds Sosnowicz will not be prejudiced 9 by a stay of ten months. See Brown vy. United States, No. 1:12-CR-0357 AWI, 2017 WL 10 1354850, at *1 (E.D. Cal. Jan. 20, 2017) (denying motion to lift stay in habeas context where the Supreme Court would be issuing a relevant decision within six months and 12 petitioner had not established prejudice); AL-Rekabi v. United States, No. 2:16-CV-573- IS DAK, 2016 WL 5874976, at *3 (D. Utah Oct. 7, 2016) (granting motion to stay habeas proceedings where “the Supreme Court has granted certiorari to hear, and will definitively 15 decide, the same questions that are at issue in this case.”). 16 IT IS ORDERED: M 1, The government’s Motion to Stay (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jonathan L. Sosnowicz, 10 Petitioner, No. CV-20-0040-PHX DGC (MTM) 11 v. ORDER 12 David Shinn, et al.,
13 Respondents. 14 15
16 17 In January 2020, petitioner Jonathan Sosnowicz filed a habeas corpus petition 18 pursuant to 28 U.S.C. § 2254. Doc. 1. In June 2021, the Court issued an order denying 19 Sosnowicz’s petition with respect to all claims except a single ineffective assistance of 20 counsel (“IAC”) claim. Doc. 25. The Court withheld ruling on that claim until the record 21 could be further developed through an evidentiary hearing. See id. The government has 22 now filed a motion to stay this action pending a Supreme Court decision which may impact 23 the Court’s ability to consider evidence not in the state court record. Doc. 28. Sosnowicz 24 has responded. Doc. 29. For reasons stated below, the Court will grant the motion to stay. 25 A. Background. 26 Sosnowicz was convicted of second-degree murder and three counts of aggravated 27 assault in September 2010. Doc. 25 at 1. He claims that he rejected a favorable plea offer 28 because his trial counsel did not explain that he could be convicted of second-degree 1 murder for reckless conduct. Id. at 3. Sosnowicz’s trial counsel IAC claim was 2 procedurally defaulted because he never timely raised it during his post-conviction review 3 (“PCR”) proceedings in state court. Id. at 4. Sosnowicz argued that his default should be 4 excused under Martinez v. Ryan, 566 U.S. 1 (2012), which recognizes a limited exception 5 to procedural default where PCR counsel fails to raise a “substantial” trial-counsel IAC 6 claim in the initial review. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). After 7 reviewing the settlement conference transcript and other state court records, the Court 8 decided that additional evidence is needed to determine whether Sosnowicz’s IAC claim is 9 substantial. Doc. 25 at 20; Detrich v. Ryan, 740 F. 3d 1237, 1245 (9th Cir. 2013). 10 In May 2021, the Supreme Court granted certiorari in Shinn v. Ramirez, No. 20- 11 1009, to address whether, in the context of a Martinez claim, the text of the Antiterrorism 12 and Effective Death Penalty Act of 1996 (“AEDPA”) allows federal courts to develop and 13 consider evidence not in the state court record when assessing the merits of trial counsel 14 IAC claims. In answering this question, the Supreme Court likely will also clarify whether 15 federal courts can consider such evidence at the Martinez gateway stage to determine cause 16 and prejudice for procedural default. Jones v. Shinn, 971 F.3d 1133, 1142 (9th Cir. 2020) 17 (“There is no point in conducting a Martinez hearing to discover ‘cause’ to excuse a 18 procedural default if the defaulted claim will inevitably fail on the merits because (due to 19 the other procedural obstacle) evidence outside the state record cannot be considered in 20 any event.”) (Collins, J., dissenting). The government argues that the Court should stay 21 this case until Shinn is decided. 22 B. Legal Standard. 23 “A district court has discretionary power to stay proceedings in its own court.” 24 Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North 25 American Co., 299 U.S. 248, 254 (1936)). The Court must weigh competing interests, 26 including “the possible damage which may result from the granting of a stay, the hardship 27 or inequity which a party may suffer in being required to go forward, and the orderly course 28 of justice measured in terms of the simplifying or complicating of issues, proof, and 2 1 questions of law which could be expected to result from a stay.” Id. (quoting CMAX, Inc. 2 v. Hall, 300 F.2d 265 (9th Cir. 1962)). If there is a fair possibility that the stay will work 3 damage to someone, the party seeking the stay “must make out a clear case of hardship or 4 inequity.” Id. (quoting Landis, 299 U.S. at 255). In habeas cases, “special considerations” 5 are implicated “that place unique limits on a district court’s authority to stay a case in the 6 interests of judicial economy.” Yong v. INS, 208 F.3d 1116, 1120 (9th Cir. 2000). 7 C. Discussion. 8 The government contends that judicial efficiency justifies staying this case because 9 the Supreme Court’s decision in Shinn could render a Martinez evidentiary hearing 10 unnecessary, and a limited stay will not prejudice Sosnowicz. Doc. 28 at 4-5. Sosnowicz 11 responds that habeas petitioners have a “clear and indisputable right to have [their] 12 petition[s] expeditiously heard and decided.” Doc. 29 at 4 (quoting Johnson v. Rogers, 917 13 F.2d 1283, 1285 (10th Cir. 1990)). 14 The Court concludes that this is one of the rare instances where a stay is warranted. 15 Shinn will address whether district courts can conduct Martinez evidentiary hearings. It 16 would waste resources for all involved to prepare for and conduct such a hearing, only to 17 have the Supreme Court decide a few months later that such a hearing is impermissible. 18 The Court is mindful of the Ninth Circuit’s prescription that habeas petitions 19 implicate “special considerations” limiting the Court’s ability to stay a case for judicial 20 efficiency. Yong, 208 F.3d at 1120. But Yong is distinguishable. There, the requested stay 21 could have “remain[ed] in effect for a lengthy period of time, perhaps . . . years.” Id. at 22 1121. Here, the Supreme Court will issue a decision no later than June 2022. 23 The stay poses no prejudice to Sosnowicz, who has served nearly 11 years of an 24 approximately 30-year sentence and is scheduled for release in February 2038. See Ariz. 25 Dep’t of Corrections, Inmate Datasearch, https://corrections.az.gov/public-resources/ 26 inmate-datasearch (last visited August 11, 2021).1 Should the Court grant relief on
27 1 Sosnowicz received 22-years for second-degree murder, and three concurrent 8.5- 28 year terms for aggravated assault, running consecutively to the murder sentence. Doc. 25. 3 ! Sosnowicz’s IAC claim, the state court will consider “whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Lafler v. Cooper, 566 U.S. 156, 170-71 (2012). The 4 government’s plea offer would have allowed Sosnowicz’s 22-year murder sentence to run ° concurrently with, rather than consecutively to, his 8.5-year sentences for aggravated 6 assault. See Doc. 15-1 at 79-80. If the state court allows Sosnowicz to accept the same terms, any new sentence on the murder claim, even if concurrent to the assault sentences, 8 likely will not expire for several years. The Court finds Sosnowicz will not be prejudiced 9 by a stay of ten months. See Brown vy. United States, No. 1:12-CR-0357 AWI, 2017 WL 10 1354850, at *1 (E.D. Cal. Jan. 20, 2017) (denying motion to lift stay in habeas context where the Supreme Court would be issuing a relevant decision within six months and 12 petitioner had not established prejudice); AL-Rekabi v. United States, No. 2:16-CV-573- IS DAK, 2016 WL 5874976, at *3 (D. Utah Oct. 7, 2016) (granting motion to stay habeas proceedings where “the Supreme Court has granted certiorari to hear, and will definitively 15 decide, the same questions that are at issue in this case.”). 16 IT IS ORDERED: M 1, The government’s Motion to Stay (Doc. 28) is granted pending the Supreme 18 Court’s decision in Shinn v. Ramirez. 19 2. The parties shall file a joint status report within 14 days of the Supreme 20 Court’s decision in Shinn, apprising the Court of the decision and their views 71 on its implications for an evidentiary hearing in this case. 22 Dated this 11th day of August, 2021. 23 Saul 6 Cu 25 A : pL David G. Campbell Senior United States District Judge 27 28