Nordstrom v. Shinn

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 Douglas Nordstrom’s Motion for 16 Reconsideration (Doc. 99), requesting this Court reconsider its Order (Doc. 96) denying 17 Nordstrom’s motion to stay his federal habeas proceedings. (Doc. 99.) Also before the 18 Court is Nordstrom’s Motion for Leave to File an Amended Petition for Writ of Habeas 19 Corpus (Doc. 100) and lodged Second Amended Petition (Doc. 101). The motions are fully 20 briefed. (See Docs. 106–109.) 21 I. BACKGROUND 22 In 1996, Nordstrom and Robert Jones shot and killed six people over the course of 23 two robberies in Tucson. State v. Nordstrom, 230 Ariz. 110, 113 , 280 P.3d 1244 , 1247 24 (2012). The jury found Nordstrom guilty of two counts of premeditated murder and four 25 counts of felony murder. Id. The trial court found three aggravating circumstances: prior 26 conviction of another offense punishable by life imprisonment or death, pecuniary gain, 27 and multiple homicides. Id. The court sentenced Nordstrom to death. The Arizona Supreme 28 Court affirmed the convictions and sentences. Id. 1 Before the Arizona Supreme Court issued its mandate, the United States Supreme 2 Court decided Ring v. Arizona, 536 U.S. 584 (2002). The Arizona Supreme Court vacated 3 Nordstrom’s death sentences and remanded for resentencing. See Nordstrom, 230 Ariz. at 4 114, 280 P.3d at 1248 . The State withdrew the pecuniary gain and multiple homicide 5 aggravating factors and did not seek death on the felony murder convictions. Id. At the new 6 sentencing hearing, Nordstrom waived mitigation. Id. At the penalty phase, the State 7 presented details about the two premeditated murders and also introduced evidence of 8 Nordstrom’s convictions for the four other homicides and other crimes at the Smoke Shop 9 and Union Hall. The State also established that Nordstrom was on parole when the offenses 10 occurred. The jury sentenced him to death on the two premeditated murder convictions. Id. 11 The Arizona Supreme Court affirmed. Id. at 1253–54. 12 After unsuccessfully pursuing post-conviction relief (“PCR”) in state court, 13 Nordstrom filed a petition for writ of habeas corpus in this Court on April 27, 2021. (Doc. 14 49.) He filed an amended petition on September 23, 2022. (Doc. 66.) 15 On October 16, 2023, Nordstrom filed a motion to stay these federal habeas 16 proceedings so he could return to state court to exhaust Claim 29, a claim of ineffective 17 assistance of counsel (“IAC”), and a new claim under Simmons v. South Carolina, 512 U.S. 18 154 (1994), that was not included in either of his petitions. The Court denied the motion, 19 finding Nordstrom’s ineffective assistance of trial counsel claim technically exhausted 20 through procedural default, and his habeas petition, which contained no unexhausted 21 Simmons claim, fully exhausted and thus ineligible for a stay under Rhines v. Weber, 544 22 U.S. 269 (2005). (Doc. 96 at 8, 9.) 23 II. MOTION FOR RECONSIDERATION 24 Nordstrom asserts the Court, in denying his motion for a stay, failed to consider 25 whether he was entitled to a stay under the alternative stay procedure outlined in Kelly v. 26 Small, 315 F.3d 1063, 1070 (9th Cir. 2003) overruled on other grounds, Robbins v. Carey, — 27 — 481 F.3d 1143 (9th Cir. 2007), or whether he could amend his habeas petition to add the 28 Simmons claim. (Doc. 99 at 2.) 1 A. Applicable Law 2 A district court may grant a motion to reconsider only in “highly unusual 3 circumstances.” School Dist. No. 1J. Multnomah County v. ACandS, Inc., 5 F.3d 1255 , 4 1263 (9th Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented 5 with newly discovered evidence, (2) committed clear error or the initial decision was 6 manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. 7 Under the rules of this District, motions to reconsider are granted only if the movant 8 makes a showing of “manifest error or new facts or legal authority that could not have been 9 brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g). A 10 motion for reconsideration must “point out with specificity the matters that the movant 11 believes were overlooked or misapprehended by the Court” and “any new matters being 12 brought to the Court’s attention for the first time and the reasons they were not presented 13 earlier.” Id. Motions for reconsideration must not “repeat any oral or written argument 14 made by the movant in support of . . . the motion that resulted in the Order.” Id. Mere 15 disagreement with a previous order is an insufficient basis for reconsideration. See Leong 16 v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). 17 B. Discussion 18 In his motion for a stay, Nordstrom argued that “a Rhines stay is warranted” to 19 exhaust a Simmons claim, a claim he asserts he was unable to raise in state court until the 20 Supreme Court issued its decision in Cruz v. Arizona, 598 U.S. 17 (2023). (Doc. 91 at 20, 21 23.) He reiterated this argument in his reply in support of the motion. (Doc. 95 at 10.) (“Mr. 22 Nordstrom’s Amended Petition is a mixed petition that justifies a Rhines stay.”). As this 23 Court explained, however, Rhines applies only to mixed petitions—those containing both 24 exhausted and unexhausted claims. See King v. Ryan, 564 F.3d 1133 , 1139–40 (9th Cir. 25 2009). Because Nordstrom’s petition contains either fully exhausted or technically 26 exhausted claims, it is not a mixed petition. 27 Addressing Respondents argument that a Rhines stay was unavailable to him, 28 Nordstrom proposed, in his reply, that at a future time he could move to amend his petition 1 to include the new Simmons claim and therefore render the petition mixed. (Doc. 95 at 9.) 2 Although he asserted that the Court could stay a fully exhausted petition, he only made a 3 passing reference to Kelly in his reply. He did not move to amend his petition or explain 4 how Kelly applies to his case. 5 “In 1982, the U.S. Supreme Court interpreted the exhaustion rule in the habeas 6 context as requiring ‘total exhaustion’ of ‘mixed’ petitions.” King, 564 F.3d at 1138 7 (quoting Rose v. Lundy, 455 U.S. 509, 522 (1982)). District courts were required to dismiss 8 mixed petitions, leaving petitioners with the choice of returning to state court to exhaust 9 all claims or amending to delete the unexhausted claims and resubmitting a habeas petition 10 presenting only exhausted claims to the district court. The 1996 passage of “AEDPA’s one11 year limitations period meant that petitioners whose mixed petitions were dismissed under 12 [the total exhaustion principle] ran the risk of being time-barred from bringing their claims 13 again, once exhausted, in federal court.” King, 564 F.3d at 1139 . Three years before the 14 Rhines decision, the Ninth Circuit developed a three-step procedure for mixed petitions to 15 address this problem, “allowing (1) a petitioner to amend his petition to delete any 16 unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, 17 fully exhausted petition, providing the petitioner the opportunity to proceed to state court 18 to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, 19 the petitioner to return to federal court and amends his federal petition to include the newly20 exhausted claims.” Id. at 1138–39. This procedure remains viable even after Rhines. See 21 King, 564 F.3d at 1140–41. 22 Thus, as an alternative to a Rhines stay, which requires a showing of good cause, a 23 district court has discretion to allow a petitioner to amend his petition to delete any 24 unexhausted claims, stay the fully exhausted petition pending exhaustion of the dismissed, 25 unexhausted claims, and then allow the petitioner to seek to amend the petition to include 26 the newly exhausted claims. See King, 564 F.3d at 1143 ; Kelly, 315 at 1070. A Kelly stay 27 is appropriate “when valid claims would otherwise be forfeited,” because an “outright 28 dismissal will render it unlikely or impossible for the petitioner to return to federal court” 1 within the statutory limitations period, Kelly, 315 F.3d at 1070 , a concern that has no 2 bearing here as the statutory limitations period has already expired. 3 Nordstrom did no more than mention in his reply the possibility that he could move 4 to amend to add the Simmons claim, nor did he explain why the Court should exercise its 5 discretion to stay the petition under Kelly. (See Doc. 95 at 9.) Kelly is inapplicable here 6 because Nordstrom did not present to this Court a mixed petition at risk of outright 7 dismissal under the total exhaustion rule. Additionally, a stay under Kelly “will be denied 8 when the court finds such a stay would be futile.” Knowles v. Muniz, 228 F.Supp.3d 1009 , 9 1016 (C.D. Cal. 2017) (citation omitted); cf. Rhines, 544 U.S. at 277 (holding it is an abuse 10 of discretion to grant stay on plainly meritless claims). “Futility would exist if the petitioner 11 seeks a stay to exhaust a meritless claim.”1 Id. Further, a petitioner may amend a newly 12 exhausted claim into a pending federal habeas petition after the expiration of the limitation 13 period only if it shares a “common core of operative facts” with one or more of the claims 14 in the pending petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). A new claim “does not 15 relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new 16 ground for relief supported by facts that differ in both time and type from those the original 17 pleading set forth.” Id. at 650 ; see King, 564 F.3d. at 1141–42. Though Nordstrom argued 18 his Simmons claim was potentially meritorious, he did not attempt to demonstrate that the 19 claim related back to an exhausted and timely claim in his original petition. 20 Finally, a “district court need not consider arguments raised for the first time in a 21 reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (holding the district court 22 did not abuse its discretion in denying a motion to alter the judgment based on an alleged 23 error raised for the first time in a reply brief). The Court did not overlook or misapprehend 24 Nordstrom’s argument; rather, Nordstrom failed to sufficiently brief or support his — 25 — 1 As discussed below, Nordstrom’s Simmons claim is meritless. While a stay under Kelly 26 does not require a showing of good cause, a Kelly stay “will be denied when the court finds such a stay would be futile.” Knowles v. Muniz, 228 F. Supp. 3d 1009, 1016 (C.D. Cal. — 27 — 2017) (citation omitted); see also King, 564 F.3d at 1139 (Kelly recognized “the clear 28 appropriateness of a stay when valid claims would otherwise be forfeited.”) (citation omitted, emphasis added). 1 argument that he was entitled to a Kelly stay. The Court therefore denies Nordstrom’s 2 motion for reconsideration. 3 III. MOTION TO AMEND 4 The Court denied Nordstrom’s request for prospective equitable tolling on the 5 grounds that the COVID-19 pandemic prevented him from investigating and raising all 6 viable claims and directed him to file a timely petition containing all record-based or 7 otherwise unimpeded habeas claims by the April 27, 2021. (See Doc. 40.) Nordstrom filed 8 a petition for writ of habeas corpus on April 27, 2021; the petition included a claim that 9 sentencing counsel performed ineffectively by failing to request a jury instruction on parole 10 ineligibility, in violation of Nordstrom’s right to effective assistance of counsel and due 11 process of law, under Simmons, 512 U.S. at 156. (Doc. 49 at 207–209). On September 23, 12 2022, Nordstrom filed his First Amended Habeas Petition, leaving unchanged his IAC 13 claim alleging counsel was ineffective for failing to argue the jury should have been 14 informed about Nordstrom’s parole ineligibility under Simmons. (Doc. 66 at 208–10.) 15 Nordstrom’s First Amended Petition was fully briefed on September 15, 2023. (See Docs. 16 72, 87.) Nordstrom filed the instant motion requesting to amend his petition to add a 17 Simmons claim on January 18, 2024. 18 A. Applicable Law 19 Federal Rule of Civil Procedure 15(a) allows a petitioner to amend a filing by leave 20 of the court at any time before trial—and the “court should freely give leave when justice 21 so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to permit amendment courts 22 consider the following factors: bad faith, undue delay, prejudice to the opposing party, 23 futility of the amendment, and whether the party has previously amended his pleadings. 24 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see Foman v. Davis, 371 U.S. 178 , 25 182 (1962). Of these factors, prejudice to the opposing party is the most important. Jackson 26 v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). 27 Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 845 . 28 To assess futility, a court necessarily evaluates whether relief may be available on the 1 merits of the proposed claim. See Caswell v. Calderon, 363 F.3d 832 , 837–39 (9th Cir. 2 2004) (conducting a two-part futility analysis reviewing both exhaustion of state court 3 remedies and the merits of the proposed claim). If the proposed claims are untimely, 4 unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile. 5 “The party opposing amendment bears the burden of showing prejudice.” DCD Programs, 6 Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 7 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year 8 statute of limitations for the filing of federal habeas corpus petitions. 28 U.S.C. § 2244 (d); 9 see Pliler v. Ford, 542 U.S. 225, 230 (2004). Under Federal Rule of Civil Procedure 15(c), 10 Nordstrom may add an otherwise untimely claim to his habeas petition if it relates back to 11 a timely-filed claim. See Alfaro v. Johnson, 862 F.3d 1176, 1183 (9th Cir. 2017). In the 12 habeas context, the original pleading to which Rule 15 refers is governed by the “more 13 demanding” pleading standard of Habeas Corpus Rule 2(c), which provides that a petition 14 “specify all the grounds for relief available to the petitioner” and “state the facts supporting 15 each ground.” Mayle, 545 U.S. at 655 . In addition, the “relation back” provision is to be 16 strictly construed in light of “Congress’ decision to expedite collateral attacks by placing 17 stringent time restrictions on [them].” Id. at 657 (quotation omitted); see United States v. 18 Ciampi, 419 F.3d 20, 23 (1st Cir. 2005). 19 “Mayle requires a comparison of a petitioner’s new claims to the properly exhausted 20 claims left pending in federal court . . . .” King, 564 F.3d at 1142–43. An untimely claim 21 relates back if it “arose out of the conduct, transaction, or occurrence set out—or attempted 22 to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). “The requirement that 23 the allegations in the amended [pleading] arise from the same conduct, transaction, or 24 occurrence is meant to ensure that the original pleading provided adequate notice of the 25 claims raised in the amended pleading.” Williams v. Boeing Co., 517 F.3d 1120 , 1133 n.9 26 (9th Cir. 2008) (citing Martell v. Trilogy Ltd., 872 F.2d 322, 326 (9th Cir. 1989)). This 27 Court is not to read the “conduct, transaction, or occurrence” requirement so broadly as to 28 render meaningless the statute of limitations. Mayle, 545 U.S. at 662–64. 1 A late-filed claim in an amended federal habeas petition relates back under Rule 2 15(c) if the timely claim and the late-filed claim “are tied to a common core of operative 3 facts.” Id. at 664; see Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008) (explaining 4 that “a new claim in an amended petition relates back to avoid a limitations bar . . . only 5 when it arises from the same core of operative facts as a claim contained in the original 6 petition”). Claims share a common core of operative facts if the litigant “will rely on the 7 same evidence to prove each claim.” Williams, 517 F.3d at 1133 . If a new claim clarifies 8 or amplifies a claim or theory already in the original petition, the new claim may relate 9 back to the date of the original petition and avoid a time bar. Woodward v. Williams, 263 10 F.3d 1135, 1142 (10th Cir. 2001). “An amended habeas petition . . . does not relate back 11 (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief 12 supported by facts that differ in both time and type from those the original pleading set 13 forth.” Mayle, 545 U.S. at 650 . 14 B. Discussion 15 Respondents ask the Court to deny Nordstrom’s motion to amend because it lacks 16 merit and is untimely. (Doc. 106 at 4.) Nordstrom does not dispute that the motion to amend 17 was filed after the expiration of the statute of limitations but asserts that his new claims are 18 timely because they “relate back” to a claim of ineffective assistance of counsel (“IAC”) 19 in his petition. He argues that his new claims arise out of a common core of operative facts 20 contained in his petition including a claim alleging counsel was ineffective for failing to 21 request a parole ineligibility instruction under Simmons. 22 For Claim Thirty-One of Nordstrom’s Second Amended Petition to relate back to 23 the date of a pending claim, there must be “a common core of operative facts uniting the 24 original and newly asserted claims.” Mayle, 545 U.S. at 659 (internal quotation marks 25 omitted). The Court does not look to the legal theory underlying a claim, but to the facts 26 on which it is based. Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013), 27 abrogated on other grounds by Davila v. Davis, 582 U.S. 521 (2017). In analyzing whether 28 an amended petition relates back to an original petition, the Court follows two steps. Ross 1 v. Williams, 950 F.3d 1160 , 1167–68 (9th Cir. 2020). First, the Court determines “what 2 claims the amended petition alleges and what core facts underlie those claims.” Id. at 1167 . 3 Second, the Court looks “to the body of the original petition . . . to see whether the original 4 petition ‘set out’ or ‘attempted to . . . set out’ a corresponding factual episode, see 5 Fed.R.Civ.P. 15(c)(1)(B)—or whether the claim is instead ‘supported by facts that differ 6 in both time and type from those the original pleading set forth,’ Mayle, 545 U.S. at 650 .” — 7 — Id. Applying this framework, the Court finds Nordstrom’s original petition contains core 8 facts to which the Simmons claim in his proposed Second Amended Petition relate back. 9 In Claim Twenty-One of Nordstrom’s original and Amended Petition, he asserts 10 sentencing counsel was ineffective because he failed to request a jury instruction on parole 11 ineligibility under Simmons.2 In support of this claim, Nordstrom argues that at the time of 12 his sentencing, Arizona law prohibited a capital defendant’s release on parole, Nordstrom’s 13 future dangerousness was raised by the prosecution, and due process required that his 14 sentencing jury be instructed, under Simmons, that he was not eligible for parole. 15 Nordstrom alleges that counsel’s failure to request such an instruction constituted deficient 16 performance. (Doc. 66 at 208–09; Doc. 49 at 207–09.) 17 In Claim Thirty-One of Nordstrom’s proposed Second Amended Petition, he alleges 18 his “Fourteenth Amendment right to due process was violated when he was prevented from 19 informing his resentencing jury that he was not eligible to be released on parole if sentenced 20 to a sentence less than death.” (Doc. 101 at 263–68.) He further alleges the state put 21 Nordstrom’s future dangerousness at issue, but the jury was improperly informed that, 22 absent a death sentence, “the court will sentence him to life without the possibility of 23 release until 25 calendar years in prison are served, or ‘natural life,’” (Doc. 101 at 265) — 24 — 2 This claim was exhausted in state court. The post-conviction court found that the — 25 — prosecutor’s closing arguments did not “put future dangerousness at issue” and that 26 “Petitioner has not shown that the sentencing court would have given Simmons instruction if it had been requested.” (Doc. 66 at 208) (citing PCR Order at 36 (7/17/2017)). Nordstrom — 27 — asserts in his habeas petition that the PCR court’s conclusion is based on an unreasonable 28 determination of the facts and unreasonable application of clearly established federal law. 28 U.S.C. § 2254 (d). 1 (citing RT 8/27/09). 2 The Simmons claim and Nordstrom’s ineffective assistance of counsel claim share 3 a “common core of operative facts” similar in “time and type.” See Mayle, 545 U.S at 657, 4 659. The factual core of Nordstrom’s ineffective assistance claim is that he was, under 5 Arizona law and as a result of the prosecutor’s argument regarding future dangerousness, 6 entitled to a jury that was instructed that he was not parole eligible. Litigating the 7 ineffective assistance claim requires the Court to consider whether he was entitled to such 8 an instruction, as demonstrated by the PCR court’s finding that the prosecutor did not “put 9 future dangerousness at issue” and that Nordstrom “has not shown that the sentencing court 10 would have given a Simmons instruction if it had been requested.” (See Doc. 49 at 208) 11 (citing PCR ruling at 36, July 17, 2017). Though the ineffective assistance of counsel claim 12 contains the additional assertions that counsel performed deficiently, the substance of the 13 facts he alleges in support of his Simmons due process claim was incorporated in his 14 ineffectiveness claim. 15 Next, Respondents contend that amendment is futile because Nordstrom’s 16 Simmons claim is meritless, asserting “Simmons relief is foreclosed by the defendant’s 17 failure to request a parole ineligibility instruction at trial.” (Doc. 106 at 5) (quoting State v. 18 Bush, 244 Ariz. 575, 593, 423 P.3d 370, 388 (2018) (quotation marks and alterations 19 omitted). The Court agrees. 20 A claim is potentially meritorious unless “it is perfectly clear that the [petitioner] 21 does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th 22 Cir. 2005); see 28 U.S.C. § 2254 (b)(2) (“An application for a writ of habeas corpus may 23 be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 24 available in the courts of the State.”); Dixon v. Baker, 847 F.3d 714 , 722–23 (9th Cir. 2017) 25 (finding claim met second prong of Rhines test because it was not “plainly meritless”); 26 Rhines, 544 U.S. at 277 (a stay is inappropriate in federal court to allow claims to be raised 27 in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless.”). 28 “In determining whether a claim is ‘plainly meritless,’ principles of comity and federalism 1 demand that the federal court refrain from ruling on the merits of the claim unless ‘it is 2 perfectly clear that the petitioner has no hope of prevailing.’” Dixon, 847 F.3d at 722 3 (quoting Cassett, 406 F.3d at 624 ). 4 The Court finds that Nordstrom has “no hope of prevailing” on his Simmons claim; 5 it is therefore plainly meritless and the Court denies Nordstrom’s motion to amend on these 6 grounds. See Cassett, 406 F.3d at 624 ; 28 U.S.C. § 2254 (b)(2). The Arizona Supreme 7 Court’s decision in Bush, cited by Respondents, correctly explains the due process holding 8 of Simmons and validates their argument that Nordstrom has failed to present a colorable 9 claim. 10 In Bush, the court acknowledged that the trial court’s jury instruction, referring to 11 the possibility of release after 35 years, was “apparently . . . incorrect” under the Supreme 12 Court’s opinion in Lynch v. Arizona, 578 U.S. 613 (2016). Bush, 244 Ariz. at 592, 423 P.3d 13 at 387 . Nonetheless, the court found Simmons relief foreclosed by the defendant’s failure 14 to request a Simmons instruction. Parsing the plurality opinion in Simmons, the Bush court 15 found Justice O’Connor’s opinion, separately concurring in the judgment with Chief 16 Justice Rehnquist and Justice Kennedy joining her opinion, represented the “‘narrowest 17 ground[]’ that ‘may be viewed as [the] position taken by’ the Court on the issue of what 18 due process requires in this context.’” Bush, 244 Ariz. at 592, 423 P.3d at 387 (quoting 19 Marks v. United States, 430 U.S 188, 193 (1977) (“When a fragmented Court decides a 20 case and no single rationale explaining the result enjoys the assent of five Justices, the 21 holding of the Court may be viewed as that position taken by those Members who 22 concurred in the judgments on the narrowest grounds . . . .”) (internal quotation omitted). 23 Accordingly, the Arizona Supreme Court in Bush held that “the due process right under 24 Simmons merely affords a parole-ineligible capital defendant the right to ‘rebut the State’s 25 case’ (if future dangerousness is at issue) by informing the jury that ‘he will never be 26 released from prison’ if sentenced to life.” Id. (quoting Simmons, 512 U.S. at 177 27 (O’Connor, J., concurring in the judgment)); see also O’Dell v. Netherland, 521 U.S. 151 , 28 159 (1997) (noting that in Simmons “there was no opinion for the Court” and that four 1 Justices merely “concluded that the Due Process Clause required allowing the defendant 2 to inform the jury—through argument or instruction—of his parole ineligibility in the face 3 of a prosecution’s future dangerousness argument”). Even in the absence of the so-called 4 “Marks rule,” Nordstrom cites no controlling authority finding Simmons error where a 5 defendant has failed to request a parole ineligibility instruction in response to the State’s 6 assertion of future dangerousness. 7 In Bush, the Arizona Supreme Court noted that in every case in which either it or 8 the United States Supreme Court has found reversible Simmons error, the trial court had 9 “either rejected the defendant’s proposed jury instruction regarding his ineligibility for 10 parole, prevented defense counsel ‘from saying anything to the jury about parole 11 ineligibility’ or both.” Id. at 593, 423 P.3d at 388 (citing Simmons, 512 U.S. at 175 12 (Ginsburg, J., concurring); Lynch, 578 U.S. at 614 (both rejecting defendant’s proposed 13 instruction and refusing to allow defendant to inform the jury of his parole ineligibility); 14 Kelly v. South Carolina, 534 U.S. 246, 249 (2002) (refusal to inform); Shafer v. South 15 Carolina, 532 U.S. 36 , 41–46 (2001) (both); State v. Hulsey, 243 Ariz. 367 , 394, 408 P.3d 16 408, 435 (both); State v. Rushing, 243 Ariz. 212 , 221, 404 P.3d 240 , 249 (2017) (refusal to 17 inform); State v. Escalante-Orozco, 241 Ariz. 254, 284 , 386 P.3d 798, 828 (2017) (refusal 18 to inform)). The Bush court concluded that relief under Simmons was foreclosed because, 19 “[u]nlike in the aforementioned cases” in which courts found reversible Simmons error, 20 “the trial court neither refused to instruct, nor prevented Bush from informing, the jury 21 regarding his parole ineligibility.” Id. 22 Nordstrom does not dispute that he did not request a Simmons instruction or 23 otherwise seek to inform the jury of his parole ineligibility. Rather, he argues “a Simmons 24 claim does not require that the defendant requested a parole-ineligibility instruction, only 25 that the state prevented a parole-ineligibility instruction,” which, he asserts, the state did 26 in this case due to binding Arizona law prior to the Supreme Court’s decision in Lynch. 27 See State v. Cruz, 218 Ariz. 149 , 181 P.3d 196 (2008) (holding Simmons inapplicable in 28 Arizona because no state law would have prohibited Cruz’s release on parole after serving 1 25 years, had he been given a life sentence.). 2 Nonetheless, it was incumbent upon Nordstrom to request the Simmons instruction 3 even where it was seemingly apparent the state court would rule against him. “[A 4 petitioner] may not bypass the state courts simply because he thinks they will be 5 unsympathetic to the claim. Even a state court that has previously rejected a constitutional 6 argument may decide, upon reflection, that the contention is valid.” Engle v. Isaac, 456 7 U.S. 107 , 130 (1982). “This rule of comity reduces friction between the state and federal 8 court systems by avoiding the unseemliness of a federal district court’s overturning a state 9 court conviction without the state courts having had an opportunity to correct the 10 constitutional violation in the first instance.” See O’Sullivan v. Boerckel, 526 U.S. 838 , 845 11 (1999) (quotation omitted). Because Nordstrom did not request a parole ineligibility 12 instruction, the trial court “neither refused to instruct, nor prevented [Nordstrom] from 13 informing, the jury regarding his parole ineligibility.” Bush, 423 P.3d at 388 . 14 Nordstrom asserts that the United States Supreme Court’s recent grant of relief in 15 Ovante v. Arizona, 144 S. Ct. 56 (Mem.) (2023), despite the fact that Ovante never sought 16 a parole ineligibility instruction in the manner noted in Bush, calls into question that court’s 17 interpretation of Simmons. (See Doc. 85 at 7). The Court disagrees. The narrow issue 18 presented in Ovante was whether the Court should grant certiorari, vacate the decision 19 below, and remand the case because, in denying Ovante’s post-conviction proceedings, 20 “the state court avoided the impact of Lynch by declining to apply that decision 21 retroactively or to treat it as a ‘change in the law’” under Rule 32.1(g), an opinion that “is 22 inconsistent with Cruz.” See Ovante v. Arizona, Petition for Writ of Certiorari, No. 2223 7229 (U.S. Apr. 3, 2023). Those issues do not instruct this Court on the merits of the 24 Simmons claim presented here. See e.g., Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 25 1285, 1288 (9th Cir. 1985) (“[U]nstated assumptions on non-litigated issues are not 26 precedential holdings binding future decisions.”). 27 Though Cruz may provide an avenue for Nordstrom to seek to raise his Simmons 28 claim in state court, he fails to demonstrate how either Lynch or Cruz calls into question || the Bush court’s Simmons analysis. Stated differently, while Cruz may establish a route for 2|| Nordstrom to actually exhaust the claim in state court, Cruz does not speak to the merits of || Nordstrom’s Simmons claim. 4 Accordingly, 5 IT IS ORDERED DENYING Nordstrom’s motion for reconsideration. (Doc. 99.) 6 IT IS FURTHER ORDERED DENYING Nordstrom’s motion to amend. (Doc. 7\| 100.) 8 Dated this 13th day of March, 2024. — 9 — 10 , 4] 12 Honorable Raner ©. Collins 13 sernior United States District Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -14-