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RENE L. VALLADARES

Federal Public Defender

Nevada State Bar No. 11479

BRAD D. LEVENSON

Assistant Federal Public Defender

Texas State Bar No. 24073411

STACY M. NEWMAN

Assistant Federal Public Defender

Nevada State Bar No. 14245

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

(702) 388-5819 (fax)

brad_levenson@fd.org

stacy_newman@fd.org

Attorneys for Petitioner 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ruben Myran Johnson,

Petitioner,

v.

Kevin Curran, et al.,

Respondents.

Case No. CV-18-00889-PHX-MTL

NOTICE OF REQUEST FOR 

EVIDENTIARY DEVELOPMENT 

(Death Penalty Case)

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TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................... 1 

II. FACTUAL DEVELOPMENT IN HABEAS CORPUS PROCEEDINGS .... 1

This Court May Grant Discovery Under Habeas Rule 6. ............ 1

This Court May Expand The Record Under Habeas Rule 

7....................................................................................... 3

This Court May Grant an Evidentiary Hearing Under 

Habeas Rule 8................................................................................ 5

1. Procedural default. ............................................................. 5

2. Merits. ................................................................................. 6

Diligence Requirement Under § 2254(e)(2). ................................. 8

III. CLAIMS FOR WHICH JOHNSON SEEKS EVIDENTIARY 

DEVELOPMENT ....................................................................................... 11

Claim 1: Due to ineffective assistance of trial counsel, the jury never learned of 

alternative explanations for Stephanie Smith’s death and law enforcement’s 

failure to investigate those lead............................................................................. 11

1. Discovery (Rule 6)....................................................................................... 11

2. Expansion of the Record (Rule 7)............................................................... 14

3. Evidentiary Hearing (Rule 8) .................................................................... 15

Claim 2: Trial counsel were ineffective for failing to object and offer rebuttal 

evidence against impermissibly suggestive photo arrays and unreliable crossracial identifications................................... ......................................................... 16

1. Discovery (Rule 6)....................................................................................... 16

2. Expansion of the Record (Rule 7)............................................................... 17

3. Evidentiary Hearing (Rule 8) .................................................................... 18

Claim 3: Repeated instances of prosecutorial misconduct denied Johnson due 

process, a fair trial, and a reliable sentencing .......................................................... 19

1. Discovery (Rule 6)....................................................................................... 19

2. Expansion of the Record (Rule 7)............................................................... 21

3. Evidentiary Hearing (Rule 8) .................................................................... 22

Claim 4: Trial counsel were ineffective for failing to independently investigate 

and challenge the state’s guilt phase case. ............................................................... 22

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1. Discovery (Rule 6)....................................................................................... 23

2. Expansion of the Record (Rule 7)............................................................... 25

3. Evidentiary Hearing (Rule 8) .................................................................... 27

Claim 5: Johnson’s trial counsel failed to render effective assistance during the 

trial-phase voir dire................................... .......................................................... 27

1. Discovery (Rule 6)....................................................................................... 28

2. Evidentiary Hearing (Rule 8) .................................................................... 28

Claim 8: Johnson was denied a fair trial because biased jurors sentenced him 

to death.......................................................... .................................................. 29

1. Expansion of the Record (Rule 7)............................................................... 29

Claim 9(B): Johnson was denied a fair trial and impartial jury at the 

sentencing phase due to the lack of Black prospective jurors on the venire. .......... 30

1. Discovery (Rule 6)....................................................................................... 31

Claim 10: Trial counsel were ineffective for failing to request an instruction 

that mere gang membership is not a crime............................................................... 31

1. Discovery (Rule 6)....................................................................................... 32

2. Evidentiary Hearing (Rule 8) .................................................................... 32

Claim 11: Arizona’s definitions of “criminal street gang” and “criminal street 

gang member” are void for vagueness..... ................................................................. 32

1. Discovery (Rule 6)....................................................................................... 33

2. Expansion of the Record (Rule 7)............................................................... 33

3. Evidentiary Hearing (Rule 8) .................................................................... 33

Claim 12: A combination of trial court error and attorney ineffectiveness led 

the jury to hear prejudicial and unreliable character evidence throughout 

Johnson’s proceedings................................ .......................................................... 34

1. Discovery (Rule 6)....................................................................................... 34

2. Evidentiary Hearing (Rule 8) .................................................................... 35

Claim 13: Trial Counsel were ineffective for failing to move to preclude rap 

lyrics, attributed to Johnson and co-defendant Jarvis Ross, on First 

Amendment and Confrontation Clause grounds, and the trial court erred in not 

excluding the lyrics based on offered evidentiary objections............................ .. 35

1. Discovery (Rule 6)....................................................................................... 35

2. Expansion of the Record (Rule 7)............................................................... 36

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3. Evidentiary Hearing (Rule 8) .................................................................... 37

Claim 14: An improper jury instruction likely caused the jury to vote for death 

to ensure Johnson was never released from custody................................................ 37

1. Discovery (Rule 6)....................................................................................... 37

2. Expansion of the Record (Rule 7)............................................................... 37

3. Evidentiary Hearing (Rule 8) .................................................................... 38

Claim 15: Johnson was denied conflict-free counsel at the sentencing phase of 

the trial and at state postconviction........................................................................ 38

1. Discovery (Rule 6)....................................................................................... 38

2. Evidentiary Hearing (Rule 8) .................................................................... 39

Claim 16: Trial counsel were ineffective at the penalty phase of Johnson’s 

trial.......................................................................................................... 40

1. Discovery (Rule 6)....................................................................................... 40

2. Expansion of the Record (Rule 7)............................................................... 41

3. Evidentiary Hearing (Rule 8) .................................................................... 43

Claim 17: Counsel were ineffective for failing to object to statutorily 

unauthorized victim impact testimony of Smith’s mother-in-law, Sandra 

Plinski.................................................................................................... .. 44

1. Discovery (Rule 6)....................................................................................... 44

2. Evidentiary Hearing (Rule 8) .................................................................... 45

Claim 19: The imposition of the death penalty on persons twenty-one and 

younger at the time of the offense constitutes cruel and unusual punishment ...... 45

1. Discovery (Rule 6)....................................................................................... 45

2. Expansion of the Record (Rule 7)............................................................... 46

3. Evidentiary Hearing (Rule 8) .................................................................... 46

Claim 20: Trial counsel were ineffective for failing to timely object, move to 

strike, move for a mistrial, and seek a curative instruction when evidence of 

other homicide charges and speculation that Johnson’s self-inflicted scars 

marked prior assaults were introduced during the penalty phase. ......................... 47

1. Discovery (Rule 6)....................................................................................... 47

2. Expansion of the Record (Rule 7)............................................................... 47

3. Evidentiary Hearing (Rule 8) .................................................................... 48

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Claim 21: Trial counsel erred in not seeking a mistrial after arguing the grand 

jury indictment was deficient because the grand jury did not consider any of 

the aggravating circumstances...................................................................... 48

1. Discovery (Rule 6)....................................................................................... 48

2. Evidentiary Hearing (Rule 8) .................................................................... 49

Claim 25: Appellate counsel was ineffective. ............................................................ 49

1. Discovery (Rule 6)....................................................................................... 49

1. Evidentiary Hearing (Rule 8) .................................................................... 50

Claim 26: Trial counsel erred by conceding Johnson’s death eligibility in 

violation of McCoy v. Louisiana. Direct appeal counsel erred by conceding 

Johnson’s guilt, also in violation of McCoy.. ............................................................. 50

1. Discovery (Rule 6)....................................................................................... 50

2. Expansion of the Record (Rule 7)............................................................... 51

3. Evidentiary Hearing (Rule 8) .................................................................... 51

Claim 27: Trial counsel were ineffective for failing to request an instruction to 

caution the jury that multiple witnesses’ testimony should be examined with 

greater caution due to receipt of government benefits ............................................. 51

1. Discovery (Rule 6)....................................................................................... 52

2. Expansion of the Record (Rule 7)............................................................... 52

3. Evidentiary Hearing (Rule 8) .................................................................... 52

Claim 28: Trial counsel were ineffective for failing to challenge the handwriting 

analysis offered by the prosecution................ ........................................................ 53

1. Discovery (Rule 6)....................................................................................... 53

2. Expansion of the Record (Rule 7)............................................................... 53

3. Evidentiary Hearing (Rule 8) .................................................................... 54

Claim 29: Significant portions of the trial proceedings were not recorded............ 54

1. Discovery (Rule 6)....................................................................................... 54

2. Evidentiary Hearing (Rule 8) .................................................................... 55

Claim 30 (D) & (E): Arizona’s capital sentencing scheme is unconstitutional. ...... 55

1. Discovery (Rule 6)....................................................................................... 55

Claim 37: Executing Johnson after more than fifteen years on death row is 

unconstitutional................................................................................... ....... 56

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1. Discovery (Rule 6)....................................................................................... 56

2. Evidentiary Hearing (Rule 8) .................................................................... 57

IV. CONCLUSION ..................................................................................................... 57

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I. INTRODUCTION 

Pursuant to this Court’s Orders dated March 30, 2018 (ECF No. 6) and August 26, 

2019 (ECF No. 42), and the Rules Governing Section 2254 Cases in the United States 

District Courts (“Habeas Rules”), Petitioner Ruben Myran Johnson hereby files this 

Notice of Request for Evidentiary Development (“Notice”), seeking discovery pursuant 

to Habeas Rule 6, expansion of the record pursuant to Habeas Rule 7, and an evidentiary 

hearing pursuant to Habeas Rule 8. 

II. FACTUAL DEVELOPMENT IN HABEAS CORPUS 

PROCEEDINGS 

The Supreme Court has recognized that, while the discovery provisions under the 

Federal Rules of Civil Procedure do not apply to habeas proceedings, the All Writs Act, 

28 U.S.C. § 1651, gives “federal courts the power to ‘fashion appropriate modes of 

procedure,’ including discovery, to dispose of habeas petitions ‘as law and justice 

require.’” Bracy v. Gramley, 520 U.S. 899, 904 (1997) (quoting Harris v. Nelson, 394 

U.S. 286, 299 (1969)). In light of this, the Supreme Court promulgated and Congress 

adopted the Rules Governing Section 2254 Cases. Under these rules, a federal habeas 

petitioner may develop the evidentiary record by conducting discovery under Habeas 

Rule 6, expanding the record under Habeas Rule 7, or obtaining an evidentiary hearing 

under Habeas Rule 8. 

This Court May Grant Discovery Under Habeas Rule 6.

Under Habeas Rule 6, a court “may, for good cause, authorize a party to conduct 

discovery under the Federal Rules of Civil Procedure . . . .” Good cause is shown “where 

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specific allegations before the court show reason to believe that the petitioner may, if the 

facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 

520 U.S. at 908–09 (quoting Harris, 394 U.S. at 300). While specific allegations are 

required, Petitioners need not fully prove a claim—even a “quite speculative” claim may 

be specific enough to warrant discovery. See id. at 905, 909–10. Because discovery will 

often be necessary to fully develop a claim, this Court may not deny discovery solely on 

the basis that the claim is meritless. Id. Rather, it must be clear that the claim will be 

meritless even after discovery. Id. Once sufficiently specific allegations are presented, “it 

is the duty of the court to provide the necessary facilities and procedures for an adequate 

inquiry.” Id.

A petitioner’s entitlement to discovery should not be limited on the basis of 28 

U.S.C. § 2254(e)(2) or § 2254(d). Section 2254(e)(2) should not serve as a basis to deny 

discovery because, without conducting discovery, this Court cannot know whether the 

petitioner has acted with the diligence required by § 2254(e)(2). Further, § 2254(e)(2) 

does not bar consideration of evidence when the evidence is used to establish cause to 

excuse a procedural default. Jones v. Shinn, __ F.3d __, 2019 WL 6442931, *7 (9th Cir. 

Nov. 29, 2019); Dickens v. Ryan, 740 F.3d 1302, 1321–22 (9th Cir. 2014) (en banc).

Additionally, § 2254(d) in conjunction with the rule established in Cullen v. Pinholster, 

563 U.S. 170 (2011), should not serve as a basis to deny discovery. While Pinholster

limited the record this Court may consider in determining whether an adjudication was 

contrary to or an unreasonable application of clearly established federal law, 563 U.S. at 

181–82, it did not limit this Court’s ability to consider evidence for other purposes. See 

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Dickens, 740 F.3d at 1321–22 (holding Pinholster does not affect a court’s ability to 

consider new evidence where petitioner successfully shows cause to overcome procedural 

default). Thus, once a petitioner has met the standard for good cause, he should be 

entitled to discovery. 

This Court May Expand The Record Under Habeas Rule 7.

Pursuant to Rule 7, a court may allow a party to supplement the state-court record 

with materials relevant to the court’s resolution of the habeas corpus petition. See Rules 

Governing Section 2254 Cases in the United States District Courts Rule 7 (“If the petition

is not dismissed, the judge may direct the parties to expand the record by submitting 

additional materials relating to the petition.”). To submit additional materials relating to 

the petition, the submitting party only needs to show the materials are relevant. See Adv. 

Comm. Notes on Habeas Rule 7 (“The record may be expanded to include additional 

material relevant to the merits of the petition.”); see also Loza v. Mitchell, No. C-1-98-

287, 2002 WL 31409881, at *1 (S.D. Ohio July 17, 2002) (holding “expansion pursuant 

to Rule 7, under the language of that rule, has only a relevancy limitation”). Expanding 

the record helps avoid the need for an evidentiary hearing, and thus, courts have wide 

discretion to permit expansion. See Blackledge v. Allison, 431 U.S. 63, 81–82 (1977).

A petitioner should not be precluded from expanding the record by application of 

§ 2254(e)(2). In fact, courts have found that § 2254(e)(2) does not apply to expanding the 

record under Habeas Rule 7 because Congress, in drafting the language of § 2254(e)(2), 

restricted only evidentiary hearings, and “expansion of the record . . . is not the 

equivalent of an evidentiary hearing under § 2254(e)(2).”Ashworth v. Bagley, No. C-2-

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00-1322, 2002 WL 485003, at *12 (S. D. Ohio Mar. 28, 2002). “If Congress intended to 

restrict federal habeas review entirely to the state court record unless the requirements of 

§ 2254(e)(2) are met . . . it could have done so explicitly.” Id. at *11. Because Congress 

elected to modify only evidentiary hearings in § 2254(e)(2), there is no reason to believe 

Congress meant to modify expanding the record under Habeas Rule 7. Id. at *12; see also 

Quintero v. Bell, No. 3:09-cv-00106, 2012 WL 6188468, at *3 (M.D. Tenn. Dec. 12, 

2012) (declining to adopt limitations in § 2254(e)(2) to motions under Rule 7); Ruine v. 

Walsh, No. 00 Civ. 3798(RWS), 2005 WL 1668855, at *6 n.4 (S.D.N.Y. July 14, 2005) 

(same). 

While the Ninth Circuit in Cooper-Smith v. Palmateer held that § 2254(e)(2) 

constrains efforts to expand the record, Johnson respectfully submits that the Ninth 

Circuit’s decision was wrongly decided. 397 F.3d 1236, 1241 (9th Cir. 2005) overruled 

on other grounds by Daire v. Lattimore, 812 F.3d 766, 768 (9th Cir. 2016) (en banc). 

Cooper-Smith relied on dicta from Holland v. Jackson, 542 U.S. 649, 652–53 (2004) (per 

curiam), and ignored an important purpose of Habeas Rule 7: allowing expansion of the 

record in determining whether an evidentiary hearing is warranted. See Adv. Comm. 

Notes on Habeas Rule 7 (“The purpose is to enable the judge to dispose of some habeas 

petitions not dismissed on the pleadings, without the time and expense required for an 

evidentiary hearing.”). Thus, provided the petitioner has established the requested records 

are relevant, he should be entitled to have the record expanded. 

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This Court May Grant an Evidentiary Hearing Under 

Habeas Rule 8.

Habeas Rule 8 grants a court discretion to order an evidentiary hearing. See Rule 8 

of the Rules Governing Section 2254 Cases (“If a petition is not dismissed, the judge 

must review the answer, any transcripts and records of state-court proceedings, and any 

materials submitted under Rule 7 to determine whether an evidentiary hearing is 

warranted.”). An evidentiary hearing may be ordered both to determine if a petitioner can 

establish good cause and prejudice to overcome a procedural default and to develop the 

merits of a claim. 

1. Procedural default.

The Ninth Circuit has regularly recognized the need to have an evidentiary hearing 

to determine if a petitioner can establish good cause and prejudice to overcome a 

procedural default. See McClesky v. Zant, 499 U.S. 467, 494 (1991) (acknowledging need 

for evidentiary hearing if meeting burden of cause and prejudice comes down to factual 

matters); Loveland v. Hatcher, 231 F.3d 640, 645 (9th Cir. 2000) (remanding for 

evidentiary hearing to determine whether to excuse procedural default).

In particular, the Ninth Circuit has recognized the importance of an evidentiary 

hearing to establish cause and prejudice in light of the Supreme Court’s decision in 

Martinez v. Ryan, 566 U.S. 1 (2012), which found that procedural default of an 

ineffective assistance of trial counsel claim will not bar federal habeas review if state 

postconviction counsel was ineffective—noting that “determining whether there has been 

ineffective assistance of counsel often requires factual development in a collateral 

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proceeding.” Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013). Thus, “[f]or 

procedurally defaulted claims, to which Martinez is applicable, the district court should 

allow discovery and hold an evidentiary hearing where appropriate . . . .” Id., see also 

Dickens, 740 F.3d at 1321 (holding “a district court may take evidence to the extent 

necessary to determine whether the petitioner’s claim of ineffective assistance of trial 

counsel is substantial under Martinez”). Accordingly, hearings addressing the existence 

of cause and prejudice are not subject to the restrictions of § 2254(e). See Dickens, 740 

F.3d at 1321–22.

In Johnson’s case, he can show cause and prejudice based on state postconviction

counsel’s ineffectiveness. As discussed in the Reply, state postconviction counsel’s 

performance was clearly deficient, and thus, Johnson can establish cause under Martinez

to excuse allegations of procedural default. Additionally, Johnson can show cause and 

prejudice to excuse any default based on the State’s suppression of evidence. See Banks 

v. Dretke, 540 U.S. 668, 695–96 (2004); Strickler v. Greene, 527 U.S. 263, 283–88 

(1999). 

2. Merits.

The Ninth Circuit has also recognized the right to an evidentiary hearing to 

develop the merits of a claim. See Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 

2005). Before AEDPA was passed, the Supreme Court listed six circumstances that 

would entitle a petitioner to a hearing in federal court:

(1) the merits of the factual dispute were not resolved in the 

state hearing; (2) the state factual determination is not 

supported by the record as a whole; (3) the fact-finding 

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procedure employed by the state court was not adequate to 

afford a full and fair-hearing; (4) there is a substantial 

allegation of newly discovered evidence; (5) the material 

facts were not adequately developed at the state-court 

hearing; or (6) for any reason it appears that the state trier of 

fact did not afford the habeas applicant a full and fair hearing.

Townsend v. Sain, 372 U.S. 293, 313 (1963), overruled by Keeney v. Tamayo-Reyes, 504 

U.S. 1 (1992). AEDPA modified this standard slightly by barring evidentiary hearings if 

“the applicant has failed to develop the factual basis of a claim in state court proceedings 

. . . .” 28 U.S.C. § 2254(e)(2). The Ninth Circuit has noted that, in most cases, if a 

petitioner has not failed to develop the factual basis of a claim, he will have satisfied one 

of the Townsend factors. Insyxiengmay, 403 F.3d at 670. Taken together, if a petitioner 

can show he meets one of the Townsend factors and has not failed to develop the factual 

basis of his claim, “an evidentiary hearing on a habeas corpus petition is required 

whenever petitioner’s allegations, if proved, would entitle him to relief.” Id. (quoting 

Turner v. Marshall, 63 F.3d 807, 815 (9th Cir. 1995)).

To the extent a petitioner’s failure to develop the factual basis of the claim is a 

result of the ineffectiveness of petitioner’s attorney, this failure should not preclude the 

petitioner from obtaining an evidentiary hearing in light of Martinez, 566 U.S. at 14. As 

the Martinez Court noted, ineffective assistance of counsel claims must be raised by 

initial state postconviction counsel. See id. at 10–12. Attributing the errors of 

postconviction counsel to the petitioner effectively prevents the petitioner from raising 

claims of ineffective assistance of trial counsel, and thus may result in meritorious claims 

never being heard by any court. Id. at 11–12. Thus, although Williams v. Taylor, 529 U.S. 

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420, 437–40 (2000), held that a petitioner’s counsel’s failure to be diligent is attributable 

to petitioner, the aspect of Williams that holds a petitioner accountable for his attorney’s 

errors has been displaced by Martinez. Similarly, while Coleman v. Thompson, 501 U.S. 

722 (1991) attributes the faults of initial postconviction counsel to petitioner, as discussed 

above, Martinez holds that the faults of initial postconviction counsel may not be 

attributable to petitioner. See Martinez, 566 U.S. at 14. Accordingly, both Williams and 

Coleman are overruled by Martinez insofar as they attribute the faults of postconviction

counsel to petitioner. If ineffective assistance of postconviction counsel may establish 

cause for failure to raise a claim, then by extension, it must also establish that a failure to 

develop the factual basis of a claim was not the petitioner’s fault. Jones v. Shinn, 2019 

WL 6442931.

In Johnson’s case, this Court should not find he has failed to develop the factual 

basis of a claim in state court due to the failures of state postconviction counsel. Insofar 

as prior counsel failed to develop this evidence, they were ineffective, which cannot be 

attributable to Johnson under Martinez, 566 U.S. at 14. Thus, as further discussed below, 

§ 2254(e)(2) should not bar expansion of the record for claims where the Martinez is 

applicable.

Diligence Requirement Under § 2254(e)(2). 

Johnson diligently sought to develop the factual bases of the claims set forth 

below in state court. Therefore, even assuming that the strictures of § 2254(e)(2) properly 

govern both expansion of the record and evidentiary hearings, the Court should grant 

Johnson’s requests under Habeas Rules 7 and 8.

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“While ‘diligence’ has not been precisely defined in this context, the Supreme 

Court has advised that ‘[d]iligence will require in the usual case that the prisoner, at a 

minimum, seek an evidentiary hearing in state court in the manner prescribed by state 

law.’” Libberton v. Ryan, 583 F.3d 1147, 1165 (9th Cir. 2009) (quoting Williams, 529 

U.S. at 437). Further, as the Court explained in Williams, the question “is not whether the 

facts could have been discovered but instead whether the prisoner was diligent in his 

efforts.” 529 U.S. at 435; see also Libberton, 583 F.3d at 1165 (finding that petitioner 

showed diligence by requesting a state-court evidentiary hearing and funding for 

investigation and that the district court had wrongly focused on whether the petitioner 

could have discovered the new evidence during state-court proceedings). Interference by 

the State in developing the facts in state court does not preclude a petitioner from 

developing the facts in federal court. See Williams, 529 U.S. at 443.

The mere existence of additional information in federal habeas that could have 

been found in state court does not mean the petitioner was not diligent. Id. at 435; 

Libberton, 583 F.3d at 1165; see also Roberts v. Dretke, 356 F.3d 632, 639 (5th Cir. 

2004) (explaining that diligence does not mean that if the evidence was theoretically 

available, prior counsel should have acquired it). A petitioner is only required to make a 

“reasonable attempt, in light of the information available at the time;” diligence “does not 

depend . . . upon whether those efforts could have been successful.” Williams, 529 U.S. at 

435; see also Roberts, 356 F.3d at 639 (stating that if there is reason for prior counsel to 

believe that time and labor intensive discovery efforts will not bear fruit, discovery of this 

type of evidence “is beyond the requirements of due diligence”).

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The state-court record reflects that Johnson satisfied the diligence requirement in § 

2254(e)(2). Through counsel, Johnson persistently sought the appointment of and 

approval for investigative and mitigation services, and sought the assistance of experts.

Moreover, when Johnson filed his postconviction petition, he submitted hundreds of 

pages of extra-record exhibits and requested an evidentiary hearing. Finally, after the 

postconviction court denied relief, Johnson filed a petition for review in the Arizona 

Supreme Court and again filed hundreds of pages of supporting evidence. On this record, 

Respondents cannot reasonably challenge Johnson’s diligence in attempting to develop 

his claims in the state courts.

Johnson further seeks evidentiary development to help demonstrate cause and 

prejudice to overcome the default of several claims. As discussed above, the diligence 

requirement in § 2254(e)(2) does not apply to Martinez issues. See Jones v. Shinn, 2019 

WL 6442931, at *7; Dickens, 740 F.3d at 1320-22. Johnson cannot have lacked diligence 

in developing facts relevant to issues—cause and prejudice under Martinez—that had no 

bearing on his state-court proceedings. 

Therefore, Johnson was diligent in state court and any failure to develop the facts of his 

claims is attributable to the State, to the state court’s failure to grant him an evidentiary 

hearing on all colorable claims, or to the ineffective assistance of state postconviction 

counsel. The Court should therefore grant Johnson’s requests for discovery, expansion of 

the record, and an evidentiary hearing.

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III. CLAIMS FOR WHICH JOHNSON SEEKS EVIDENTIARY 

DEVELOPMENT 

Johnson is entitled to evidentiary development on his claims under Habeas Rules 

6, 7, and 8, to establish both that he can overcome any procedural defenses and that he is 

entitled to relief on the merits of his claims.

Claim 1: Due to ineffective assistance of trial counsel, the jury never 

learned of alternative explanations for Stephanie Smith’s death 

and law enforcement’s failure to investigate those leads.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel provided ineffective assistance by failing to present 

evidence of alternative explanations for Stephanie Smith’s death. This Claim was 

procedurally defaulted, but the ineffective assistance of counsel that Johnson received 

during his state postconviction proceedings in failing to present this substantial Claim 

provides cause for the default and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of Rick “Magic” Neuman: Rick Neuman was an associate of Smith,

an ex-convict, and known for his connections with the Aryan Brotherhood, motorcycle 

gangs, and prison gangs. Neuman can speak to Smith’s ties to white supremacist groups.

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Deposition of David Smith: David Smith was Stephanie Smith’s husband at the 

time of her death, and was believed to have ties to White Nationalists and the Aryan 

Brotherhood. David Smith can speak to both his and Smith’s ties to White Nationalists 

and the Aryan Brotherhood. He can address his abusive relationship with Smith and his 

repeated threats to kill her. 

Deposition of Leonard Justice: Leonard Justice worked with Stephanie Smith 

illegally trafficking persons from Mexico into the United States for profit. Justice was 

present with Smith at Smith’s house on the night she was murdered. Justice can speak to 

trafficking with Smith and a payment he was expected to give Smith the night of her 

murder. Justice can address drug use at Smith’s house, Smith’s own drug use, and the 

impact of his use of methamphetamines on his ability to observe and recall events. 

Deposition of Deena Perez: Deena Perez was the owner of Affordable Massage, 

where Smith worked. Perez can speak to her theory that Cheryl Newberry, an Affordable 

Massage employee, staged the Affordable Massage robbery as revenge against Perez. 

Perez can address Smith’s role as the driver for a burglary ring, her illegal trafficking, her 

drug dealing, work as an escort, and methamphetamine use. 

Deposition of Wendy McKeown: Wendy McKeown was a close friend of Smith. 

McKeown can speak to Smith’s illegal trafficking and Smith’s expectation to receive 

payment for her trafficking work on the evening before her death. McKeown knew David 

Smith and can address their abusive relationship. McKeown can further describe 

Stephanie Smith’s refusal to associate with or provide massages to Hispanics or African 

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Americans, which provides further corroboration of Smith’s association with White 

Supremacist groups. 

Deposition of Russell Biondo: Russell Biondo was a friend and burglary 

associate of Smith’s and was at Affordable Massage with Smith on the night of the 

robbery. Biondo can describe Smith’s involvement with a burglary ring and Smith’s 

dealing in methamphetamines. 

Deposition of Todd Dentler: Dentler was a friend of Smith’s and can address 

Smith’s association with dangerous individuals. 

Deposition of Angela “Gina” Mitchell: Angela Mitchell was a friend and coworker of Smith’s at Affordable Massage. Mitchell can address Smith’s drug dealing and

refusal to associate with African Americans. 

Deposition of Diana Caban: Diana Caban was a friend and co-worker of Smith’s

at Affordable Massage. Caban can address Smith’s methamphetamine use and refusal to

associate with African Americans.

Deposition of Nancy Clarke: Nancy Clarke was David Smith’s girlfriend at the 

time of Stephanie Smith’s death. Clarke can address David Smith’s history of violence 

and a violent, sexual letter David Smith sent to Clarke while Smith was incarcerated.

Deposition of Mike Solo: Mike Solo was at Smith’s house the night she was 

murdered. Solo can address the drug use at Smith’s house, Smith’s drug use, and his use 

of methamphetamines. 

Deposition of Cheryl Newberry: Cheryl Newberry was a co-worker of Smith’s at 

Affordable Massage. Newberry can speak to Smith’s drug dealing, illegal trafficking, and

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the possibility that Smith’s murder was due to illegal smuggling, white supremacists, or 

drugs. 

Deposition of Edward Pinnow: Edward Pinnow was Smith’s drug counselor. 

Pinnow can speak to Smith’s methamphetamine use, her association with Rick Nueman, 

and her work as a prostitute. 

Deposition of Robert Storrs: Robert Storrs served as Johnson’s lead attorney at 

trial. Storrs can speak to the lack of reasonable trial strategy for the errors enumerated in 

this Claim, specifically the failure to present alternative explanations for Smith’s death,

any preparation and investigation conducted, and the functioning of the defense team.

Deposition of Rick Tosto: Rick Tosto served as Storrs’ co-counsel during the 

guilt phase of trial. Tosto can address the lack of reasonable trial strategy for the errors 

enumerated in this Claim, specifically the failure to present alternative explanations for 

Smith’s death, any preparation and investigation conducted, and the functioning of the 

defense team.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 5 (ECF No. 19-5) Letter from David Smith to Nancy Clarke: 

Approximately one month after Smith’s death, David Smith wrote a violent, sexual letter 

to his girlfriend Clarke while he was incarcerated. Smith describes a sexual fantasy, in 

which he ties a zip tie around Clarke’s neck and tells her, “if you make a sound, I will zip 

your neck and walk out while you suffocate and die . . . ” Id. at 8. This document is 

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relevant to Johnson’s Claim because it shows David Smith’s pattern of violence against 

women.

Exs. 7–9, 80–83 (ECF No. 19-7 to 19-9, 45-2 to 45-5) Phoenix Police 

Department Reports: These police reports describe David Smith’s multiple physical and 

verbal assaults on Stephanie Smith. Several of the reports document David Smith’s 

threats to kill Stephanie Smith. One police report, from April 30, 2000, describes how 

police were called out to a suspicious vehicle parked near Stephanie Smith’s house, 

which they found was registered to David Smith’s girlfriend. Officers identified a 

handgun underneath the driver’s side front door. Stephanie Smith told officers she had an 

order of protection against David Smith because he had threatened to kill her and used 

physical force against her. These documents are relevant to Johnson’s Claim because 

they demonstrate David Smith’s pattern of violence against Stephanie Smith. The jury 

did not consider law enforcement’s failure to investigate David Smith and his motivation 

to have his wife killed due to trial counsels’ ineffectiveness.

Ex. 79 (ECF No. 45-1) Phoenix Police Department Record: This police report 

describes a fight between David Smith and a man at a clothing store. Smith threatened to 

kill the man, stating “that’s a good way to get a bullet through your head.” This document 

is relevant to Johnson’s Claim because it shows David Smith’s pattern of violence, which 

the jury did not consider due to trial counsels’ ineffectiveness.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 1, Johnson will present witnesses and 

testimony including, but not limited to, Rick Neuman, David Smith, Leonard Justice, 

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Deena Perez, Wendy McKeown, Russell Biondo, Todd, Angela Mitchell, Diana 

Caban, Nancy Clarke, Mike Solo, Cheryl Newberry, and Edward Pinnow, who 

would testify to Stephanie Smith’s involvement in illegal trafficking, serving as a driver 

in a burglary ring, dealing in methamphetamine, prostitution, drug use, association with 

felons who had ties to white supremacists groups, and marriage to a violent man who had 

threatened to shoot her in the head. Additionally, Johnson will present Robert Storrs and 

Rick Tosto, who will testify regarding their actions as co-counsel at the guilt phase of

trial, including their failure to present evidence of alternate explanations for Smith’s 

death.

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Claim 2: Trial counsel were ineffective for failing to object and offer 

rebuttal evidence against impermissibly suggestive photo arrays 

and unreliable cross-racial identifications.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel were ineffective for failing to object and offer 

rebuttal evidence to identifications of Johnson, which were the product of impermissibly 

suggestive photo spreads and unreliable cross-racial identification. Johnson exhausted 

this Claim in state court. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

 

1 Depositions of prior counsel would also be relevant to the ineffective assistance 

of counsel aspects of Claims: 6, 9, 11, 14, 18, 19, 23, 29, 33, 34, & 35.

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shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of Roy Malpass, Ph.D.: Dr. Roy Malpass is a professor emeritus of 

psychology at the University of Texas, El Paso, and is a member of the Eyewitness 

Identification Research Laboratory at the University. Dr. Malpass would provide 

information regarding the national standards for eyewitness identification, the issues with 

the photo arrays in this case, and the problems with cross-racial identifications.

Deposition of Russel Biondo: Biondo can speak to his hesitant identification of

Johnson in a photographic lineup, and his identification of Johnson in court. Biondo 

would further describe his state of mind at the time of the Affordable Massage robbery. 

Depositions of Robert Storrs & Rick Tosto: Storrs and Tosto can speak to the 

lack of reasonable trial strategy for their failure to object or offer rebuttal evidence to the 

identifications of Johnson.

Deposition of James D. Stoehr, Ph.D.: Dr. James D. Stoehr is a professor at 

Midwestern University and author of The Neurobiology of Addiction. Dr. Stoehr can 

provide information on the effects of methamphetamine use, and specifically the effects 

of Biondo’s methamphetamine use on his ability to accurately recall the details of the 

Affordable Massage robbery.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Exs. 11 & 12 (ECF No. 19-11 & 19-12) Reports by Dr. Roy Malpass: Dr. 

Malpass’s reports describe changes in the science of eyewitness identification since 2010.

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They include information on the “cross-race effect,” and the inaccuracy of in-court 

identifications. ECF No. 19-11 at 3; ECF No. 19-12 at 2-3, 7, 11. Dr. Malpass’s reports

are relevant to Johnson’s Claim that the identifications of Johnson were flawed and 

unreliable, and counsel were ineffective for failing to object to the identifications. 

Ex. 14 (ECF No. 19-14) Amended Report of Dr. James Stoehr: This report 

describes the known effects of methamphetamine use and Dr. Stoehr’s opinion on 

Biondo’s historical drug use and use of methamphetamine on the day of the Affordable 

Massage robbery. This exhibit supports Johnson’s argument that Biondo’s identification 

of Johnson should have been excluded at trial as unreliable, and counsels’ ineffectiveness 

in failing to object to Biondo’s testimony.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 2, Johnson will present witnesses and 

testimony including, but not limited to, Dr. Roy Malpass, who will testify regarding the 

flawed photographic lineups and eyewitness identifications; Dr. James D. Stoehr, who 

will testify about the effects of methamphetamine use and the effect of chronic 

methamphetamine use on Biondo’s ability to recall the events of the Affordable Massage 

robbery; and Russel Biondo, who will testify about his hesitant identification of Johnson 

in the photographic lineup on the day of the robbery and in-court identification of 

Johnson, as well, as his chronic drug use. Additionally, Johnson will present Robert 

Storrs and Rick Tosto, who will testify regarding their failure to object to the 

identifications of Johnson.

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Claim 3: Repeated instances of prosecutorial misconduct denied Johnson 

due process, a fair trial, and a reliable sentencing.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that the prosecutor engaged in repeated and pervasive misconduct. 

Portions of this Claim were exhausted. To the extent it was not exhausted, the ineffective 

assistance of counsel that Johnson received during his state postconviction proceedings in 

failing to present this substantial Claim provides cause for the default and establishes 

prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of Phyllis Hansen: Phyllis Hansen was a clerk at the Maryvale

County Justice Court (MCJC) and testified for the State at trial, alleging that Johnson 

committed the Affordable Massage robbery and killed Smith. Hansen can speak to the 

fact that she had access to information about the case from files at the MCJC and the 

circumstances concerning her termination as court clerk. Hansen can additionally address

the prosecutor’s misleading line of questioning regarding her access to information about 

Smith’s homicide. 

Deposition of Detective Thomas Kulesa: Detective Thomas Kulesa was the lead 

detective on the Smith homicide. Kulesa can speak to his belief that the Smith homicide 

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report was “restricted” and only accessible to the homicide team and that search warrants 

were obtained through the Superior Court, rather than the MCJC. The prosecutor knew 

this information was incorrect; therefore, Kulesa’s testimony will support Johnson’s 

Claim that the prosecutor knowingly failed to correct false or misleading testimony.

Deposition of Patricia Stevens: Patricia Stevens was a Deputy County Attorney 

at the Maricopa County Attorney’s Office, who prosecuted Johnson. Johnson seeks to 

obtain information regarding the office’s pattern and practice of misconduct and 

unethical behavior. Stevens can address her decisions during trial, including her failure to 

correct false and misleading testimony, knowing presentation of misleading and false 

testimony, failure to disclose information pursuant to Brady2 and Napue3

, improper

vouching for witness’s truthfulness, and inappropriate comments during arguments to the 

jury. 

Depositions of Robert Storrs & Rick Tosto: Storrs and Tosto can speak to the 

lack of reasonable trial strategy for the errors enumerated in this Claim, including their

failure to address and litigate the issue of Stevens’s prosecutorial misconduct.

Deposition of Nathaniel Carr: Nathaniel Carr was co-counsel with Storrs during 

the guilt phase of Johnson’s trial. Carr can speak to the lack of reasonable trial strategy 

for the errors enumerated in this Claim, including their failure to address Stevens’s

prosecutorial misconduct.

 2 Brady v. Maryland, 373 U.S. 83 (1963).

3 Napue v. Illinois, 360 U.S. 264 (1959).

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Deposition of Cheryl Newberry: Newberry can address her access to Smith’s 

homicide report and supplements, to contest Kulesa’s testimony. Newberry can also 

speak to knowingly making false statements to the jury, her use of medication during the 

trial, as well as the details of her plea agreement, which the prosecutor did not disclose to 

the jury. 

Deposition of Detective Rusty Stuart: Detective Rusty Stuart was a detective on 

the Smith homicide. Stuart can speak to the prosecutor’s mischaracterizations, 

specifically her mischaracterization of a call between Johnson and Jarvis Ross. 

Deposition of Russel Biondo: Biondo can address the benefits he received for 

testifying against Johnson, which were not disclosed to the jury by the prosecutor. 

Deposition of Andrea Stiles: Andrea Stiles was Russel Biondo’s Probation 

Officer. Stiles can address the Probation Department’s decision to wait to file a probation 

revocation petition against Biondo until after he testified at Johnson’s trial. Stiles can 

speak to the decision to allow Biondo, a registered sex offender, to remain out-of-custody 

and living with his minor daughter until he testified against Johnson.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the following relevant exhibit.

Ex. 16 (ECF No. 19-16) Receipt of Discovery Materials signed by Robert 

Storrs: This document contains the discovery materials disclosed to Storrs as part of the 

Quindell Carter case. The materials include Smith’s homicide report and supplements, 

which were disclosed to Carter on December 14, 2000. Id. at 38–39. This material is 

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relevant to Johnson’s Claim that the prosecutor failed to correct inaccurate testimony

regarding access to Smith’s homicide report. 

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 3, Johnson will present witnesses and 

testimony including, but not limited to, Detective Kulesa, Phyllis Hansen, Cheryl 

Newberry, and Detective Stuart, whose testimony will demonstrate that the prosecutor 

failed to correct false testimony, or presented the jury with misleading testimony; Russel 

Biondo and Andrea Stiles, who will testify to the benefits Biondo received for testifying 

against Johnson; and Patricia Stevens, who will testify to her misconduct during trial. 

Additionally, Johnson will present Robert Storrs, Rick Tosto, and Nathaniel Carr, 

who will testify regarding their failure to address Stevens’ prosecutorial misconduct

Claim 4: Trial counsel were ineffective for failing to independently 

investigate and challenge the state’s guilt phase case.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel were ineffective for failing to investigate and 

challenge the State’s guilt phase case. Johnson exhausted this Claim in state court. To the 

extent any subsection of Claim 4 is unexhausted, the ineffective assistance of counsel that 

Johnson received during his state postconviction proceedings in failing to present this 

substantial Claim provides cause for the default and establishes prejudice. See Martinez, 

566 U.S. at 17. 

/ / /

/ / /

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1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court authorization to issue the following deposition subpoenas.

Depositions of Robert Storrs & Rick Tosto: Storrs and Tosto can speak to the 

lack of reasonable trial strategy for their failure to interview the State’s witnesses prior to 

trial, and their general lack of preparation for trial. 

Deposition of Arthur Hanratty: Arthur Hanratty was the defense investigator

during trial. Hanratty will address the defense team’s failure to investigate, including the 

fact that he had no file, billing records, or recollection of the case when interviewed 

during state postconviction proceedings. 

Deposition of James Stoehr, Ph.D.: Dr. Stoehr will address the evidence trial 

counsel should have presented on methamphetamine abuse and Biondo’s use of 

methamphetamines.

Deposition of Heather Grant: Heather Grant was living at Phyllis Hansen’s 

home at the time of Smith’s murder. Grant was not called to testify at trial, but can speak 

to Hansen’s character for truthfulness and can rebut aspects of Hansen’s testimony. 

Deposition of Heinz Sauermann: Heinz Sauermann was a manger of the MCJC

security in 2000, when Phyllis Hansen worked at the court. Sauermann can speak to the 

Phoenix Police Department’s 2000 investigation of MCJC personnel.

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Deposition of Bonnie Discus: Bonnie Discus was the MCJC Administrator in 

2000. Discus can speak to the Phoenix Police Department’s investigation of Phyllis 

Hansen in 2000. Discus can also address her decision to place Hansen on administrative 

leave, and decision, after conducting an investigation into the accounting of the MCJC 

records, to terminate Hansen’s employment.

Deposition of Dan Fishel: Dan Fishel is an Investigator for the Arizona State 

Office of the Capital Postconviction Public Defender, which represented Johnson during 

state postconviction proceedings. Fishel can address his interviews with Sauermann and 

Discus.

Deposition of Cheryl Newberry: Although a key witness in the case, who 

testified Johnson confessed to murdering Smith, counsel did not independently 

investigate Newberry. Newberry can address her admission to police that she planned the 

Affordable Massage robbery, can speak to her false statements that she was good friends 

with Smith and feared Johnson, and can discuss her plea agreement. Newberry made 

numerous statements to the State which could have been discredited; however, defense 

counsel were unable to impeach her credibility due to the lack of investigation and failure 

to prepare for trial.

Deposition of Phyllis Hansen: Although a key witness in the case, who testified 

that Johnson confessed to murdering Smith, Hansen was not independently investigated 

or interviewed by trial counsel. Hansen’s husband was manufacturing and selling 

methamphetamine from their house, a young man was killed in their home, and Hansen 

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herself was fired from her job as chief clerk at the MCJC for stealing funds. However, the 

defense team was unable to discredit Hansen, because they were unprepared for trial. 

Deposition of Russel Biondo: Biondo was a key witness in the case, and the only

other witness from the Affordable Massage robbery. Biondo used methamphetamine 

daily; however, trial counsel did not independently investigate or interview Biondo. 

Biondo’s testimony will demonstrate the defense team’s failure to prepare for trial.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 14 (ECF No. 19-14) Amended Report of Dr. James Stoehr: As outlined in 

Claim 2, this exhibit supports Johnson’s argument that Biondo’s identification of Johnson 

should have been excluded at trial as unreliable, and counsel were ineffective for failing 

to challenge his identification.

Exs. 17, 20–22 (ECF No. 19-17, 19-20 to 19-22) Transcripts of Interviews with 

Cheryl Newberry: Newberry was interviewed on several different occasions by the 

State, and made inconsistent statements during each interview. For example, Newberry 

initially told law enforcement that she was not involved in the Affordable Massage 

robbery, (ECF No. 19-21 at 6; ECF No. 19-17 at 33), before admitting that the robbery 

was her idea. ECF No. 19-20 at 19; ECF No. 19-22 at 4. Newberry also changed her 

statements on whether she intended for Smith to be robbed, both denying, (ECF No. 19-

21 at 15; ECF No. 19-22 at 5), and admitting her intentions. ECF No. 19-17 at 33, 34; 

ECF No. 19-20 at 20. These documents are relevant to Johnson’s Claim because they 

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show how unprepared the defense team was for trial. Counsel were unable to impeach 

Newberry, even with her numerous, documented inconsistent statements.

Ex. 18 (ECF No. 19-18) Declaration of Suzy Riccardo: Suzy Riccardo is Cheryl 

Newberry ex-girlfriend. In her declaration, Riccardo describes how Newberry was 

addicted to drugs at the time of Smith’s death and was not an honest person. Riccardo’s 

statements substantiate Johnson’s Claim that counsel was unprepared for trial and could 

not refute false or misleading statements by witnesses or the prosecutor.

Ex. 19 (ECF No. 19-19) Declaration of Ralph Newberry: Ralph Newberry is 

Cheryl Newberry’s ex-husband. Ralph Newberry described Cheryl Newberry as addicted 

to crack-cocaine and a dishonest person. Ralph Newberry’s statements substantiate 

Johnson’s Claim that counsel was unprepared for trial and could not refute false or 

misleading statements by witnesses or the prosecutor.

Ex. 23 (ECF No. 19-23) Ruben Johnson’s full interrogation and Ex. 24 (ECF 

No. 19-24) Ruben Johnson’s edited interrogation (trial exhibit 261): ECF No. 19-23

(Ex. 23) is Ruben Johnson’s full interrogation and ECF No. 19-24 (Ex. 24) is a fourminute edited portion of the interrogation that the State presented at trial. Without 

context, the redacted tape presents Johnson as extremely aggressive toward police 

interrogators. These documents are relevant to Johnson’s Claim because they display 

counsels’ inability to properly object to the edited tape or put it into context, which 

prejudiced Johnson.

Ex. 85 (ECF No. 45-7) Declaration of Heather Grant: In her statement, Grant 

impeaches Hansen’s testimony; however, counsel did not call Grant to testify at trial to 

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refute Hansen. This document is relevant to Johnson’s Claim because it shows counsel’s 

ineffectiveness in failing to impeach the credibility of one of the State’s star witnesses.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 4, Johnson will present witnesses and 

testimony including, but not limited to, Heinz Sauermann, Bonnie Dicus, and Dan 

Fishel who can testify about the Phoenix Police Department’s investigation of Phyllis 

Hansen; Russel Biondo, who identified Johnson as one of the Affordable Massage 

robbers, but was never interviewed by the defense team; Dr. James Stoehr, who will 

testify about the effects of methamphetamine and the effect of chronic methamphetamine 

use on Biondo’s ability to recall the events of the Affordable Massage robbery; Cheryl 

Newberry and Phyllis Hansen, who testified Johnson confessed to murdering Smith, but 

were never interviewed by the defense team or impeached on their numerous false and 

misleading statements; Heather Grant, who will testify to Hansen’s credibility; and 

Arthur Hanratty, who will testify that he was the investigator for the defense team, but 

did not perform and was not assigned any tasks. Additionally, Johnson will also present 

Robert Storrs, Rick Tosto, and Nathaniel Carr, who will testify regarding their failure 

to prepare for the trial.

Claim 5: Johnson’s trial counsel failed to render effective assistance during 

the trial-phase voir dire.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

counsel rendered ineffective assistance during the trial-phase voir dire. This Claim was 

procedurally defaulted, but the ineffective assistance of counsel that Johnson received 

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during his state postconviction proceedings in failing to present this substantial Claim 

provides cause for the default and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs & Rick Tosto: Storrs and Tosto can speak to the 

lack of reasonable trial strategy, their lack of preparation for voir dire, and their failure to 

question concerned jurors, individually question jurors, ensure a record of peremptory 

challenges, and ensure a diverse jury pool.

Deposition of William White: William White was the Maricopa County Jury 

Commissioner at the time of Johnson’s trial. The trial court refused to utilize a jury 

questionnaire, because, in part, it was “incredibly time consuming.” ECF No. 18 at 152.

White can speak to Maricopa County’s use of juror questionnaires, its method of 

screening jurors, and whether its prescreening methods systematically exclude minority 

jurors.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 5, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs and Rick Tosto who will testify 

regarding their decisions during voir dire, including their failure to utilize the opportunity 

to effectively question jurors; and William White who will testify about Maricopa 

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County’s use of juror questionnaires and method of screening jurors, including its method 

of prescreening jurors and whether it systematically excludes minority jurors.

Claim 8: Johnson was denied a fair trial because biased jurors sentenced 

him to death.

Johnson requests expansion of the record in support of his Claim that his jury was 

biased. Johnson exhausted a portion of this Claim in state court. To the extent the Claim 

was not exhausted, any default is due to the ineffective assistance of counsel that Johnson 

received during his state postconviction proceedings, which provides cause for the default 

and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 26 (ECF No. 19-26) Juror Agee’s Juror Questionnaire: Juror Agee 

expressed anti-gang bias in his juror questionnaire, writing “yes” when asked, “Would 

gang influence you [sic] or play any part in your ability to be fair and impartial in 

deciding the issues in the case?” Id. at 16. Further, he wrote, “Street gangs are involved in 

criminal activity.” Id. The trial court denied defense counsel’s challenge of Agee, despite 

his bias, and Agee was seated as a juror. This questionnaire supports Johnson’s argument 

that he was sentenced to death by biased jurors. 

Ex. 38 (ECF No. 20-8) Juror Davis’ Juror Questionnaire: Juror Davis showed 

a bias against gangs in her juror questionnaire, writing, “I have no patience for black 

street gangs. Living outside DC made me hate the gangs.” Id. at 16. Davis was also

biased in favor of the death penalty, noting in her juror questionnaire that the death 

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penalty “should [be] in all states and it isn’t use enough.” Id. at 19. The trial court denied 

defense counsel’s challenge of Davis, despite her biases, and Davis was seated as a juror. 

This questionnaire supports Johnson’s argument that he was sentenced to death by biased 

jurors.

Ex. 39 (ECF No. 20-9) Juror Ellens’ Juror Questionnaire: Juror Ellens

exhibited a pro-prosecution bias, writing “I think the death penalty is good if the crime 

committed was taking another’s life. If this punishment was given more, there might be 

less crime.” Id. at 19. Ellens had also experienced close familial violence, as his eldest 

daughter’s mother was murdered two years prior to the trial. Id. at 11, 21. The trial court 

denied defense counsel’s challenge of Ellens, despite his biases, and Ellens was seated as 

a juror. This questionnaire supports Johnson’s argument that he was sentenced to death 

by biased jurors.

Ex. 27 (ECF 19-27) Jury List: The sentencing jury list included jurors Agee,

Davis, and Ellens, who ultimately sentenced Johnson to death. 

Claim 9(B): Johnson was denied a fair trial and impartial jury at the 

sentencing phase due to the lack of Black prospective jurors on the 

venire.

Johnson requests discovery in support of his Claim that the jury selection process 

was unconstitutional. This Claim was procedurally defaulted, but the ineffective 

assistance of counsel that Johnson received during his state post-conviction proceedings 

in failing to present this substantial Claim provides cause for the default and establishes 

prejudice. See Martinez, 566 U.S. at 17.

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1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908-09. Accordingly, he 

moves for court orders for the following request.

Subpoena Duces Tecum to the Maricopa County Attorney’s Office 

(“MCAO”): Johnson seeks any documents or electronically stored information in the 

possession or custody of MCAO regarding the jury selection process in capital cases in 

Maricopa County from 2000 through 2005. Of particular interest are documents or 

electronically stored information providing information about the demographic 

characteristics and views of individual venirepersons, whether they served on the jury, 

and, if not, then the reason they were stricken or released from the venire panel. Such 

documents or electronically stored information includes but is not limited to completed 

jury questionnaires, communications between counsel and the court or court staff 

regarding potential jurors, and voir dire transcripts that are not publicly available.

Claim 10: Trial counsel were ineffective for failing to request an instruction 

that mere gang membership is not a crime.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

trial counsel were ineffective for failing to request an instruction that mere gang 

membership is not a crime. This Claim was procedurally defaulted, but the ineffective 

assistance of counsel that Johnson received during his state postconviction proceedings in 

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failing to present this substantial Claim provides cause for the default and establishes 

prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908-09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathanial Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for failing to request an instruction 

that mere gang membership is not a crime. 

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 10, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs, Rick Tosto, and Nathaniel Carr, 

who would testify about the lack of a strategic reason for failing to request an instruction 

that mere gang membership is not a crime.

Claim 11: Arizona’s definitions of “criminal street gang” and “criminal 

street gang member” are void for vagueness.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that Arizona’s definitions of “criminal street gang” and “criminal 

street gang member” are void for vagueness. This Claim was procedurally defaulted, but 

the ineffective assistance of counsel that Johnson received during his state postconviction

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proceedings in failing to present this substantial Claim provides cause for the default and 

establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following request.

Depositions of Robert Storrs, Rick Tosto, & Nathaniel Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for failing to challenge Arizona’s 

definitions of “criminal street gang” and “criminal street gang member.”

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibit below.

Ex. 86 (ECF No. 40-8) Minute of Meetings on S.B. 1291: This document is 

relevant to Johnson’s Claim because it shows the vagueness of Arizona’s statute. At a 

hearing on the statute, concern was expressed that the bill’s definition of a criminal street 

gang was so broad and vague that it could even encompass “a police department or three 

or more members of a police department might be identified as a criminal street gang.” 

Id. 

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 11, Johnson will present Robert Storrs, Rick 

Tosto, and Nathaniel Carr to testify as to why they did not object to the instructions that 

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included Arizona’s vague definitions of “criminal street gang” and “criminal street gang 

member.” 

Claim 12: A combination of trial court error and attorney ineffectiveness led 

the jury to hear prejudicial and unreliable character evidence 

throughout Johnson’s proceedings. 

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

due to trial court error and ineffective assistance of counsel, the jury heard prejudicial and 

unreliable character evidence. Johnson exhausted a portion of this Claim in state court. 

To the extent the Claim was not exhausted any default is due to the ineffective assistance 

of counsel that Johnson received during his state postconviction proceedings, which 

provides cause for the default and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathanial Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for counsels’ failure to object to 

Detective Rusty Stuart’s prejudicial testimony during both the guilt and penalty phases.

Deposition of Detective Rusty Stuart: Detective Rusty Stuart was a detective on 

the Smith homicide and testified as the State’s gang expert during both the guilt and 

penalty phases. Stuart can address his trial testimony that contained numerous 

contradictions about Arizona gangs in general and the LPC gang in particular. Stuart can 

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also speak to his prejudicial opinion that Johnson was a gang member and Johnson 

committed the Smith murder to eliminate her as a witness to the Affordable Massage 

robbery.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 12, Johnson will present witnesses and 

testimony including, but not limited to, Detective Rusty Stuart, who would address his 

gang testimony and his investigation into Johnson’s involvement with the LPC; and 

Robert Storrs, Rick Tosto, and Nathaniel Carr who would address their failure to 

object to Stuart’s prejudicial gang testimony.

Claim 13: Trial Counsel were ineffective for failing to move to preclude rap 

lyrics, attributed to Johnson and co-defendant Jarvis Ross, on 

First Amendment and Confrontation Clause grounds, and the trial 

court erred in not excluding the lyrics based on offered 

evidentiary objections.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel were ineffective in failing to preclude rap lyrics. 

This Claim was procedurally defaulted, but the ineffective assistance of counsel that 

Johnson received during his state postconviction proceedings in failing to present this 

substantial Claim provides cause for the default and establishes prejudice. See Martinez, 

566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

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shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathaniel Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for counsels’ failure to raise 

evidentiary objections or a First Amendment objection, and failure to consult with an 

expert on rap music.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 42 (ECF No. 20-12) Autographed photograph of Rapper MC Eight: This 

photo is relevant to Johnson’s Claim because it shows his admiration for rap music. The 

lyrics introduced by the State emulate the graphic and violent style of rappers such as MC 

Eight.

Ex. 43 (ECF No. 20-13) Rap compositions “Book of Counted Sorrows”: This 

document is relevant to Johnson’s Claim that counsel were ineffective for failing to 

introduce rap compositions that did not contain descriptions of violence. The lyrics in this 

document include declarations of love, longing, and sexual interest, as well as musings on 

destiny and free will.

Ex. 87 (ECF No. 45-9) Rap lyrics admitted at trial: These lyrics were admitted 

at trial and were alleged to have been written by Johnson. The lyrics are relevant to 

Johnson’s Claim that counsel should have objected to the lyrics as unauthenticated, 

because they do not mention the Affordable Massage robbery nor the Smith’s murder. 

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3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 13, Johnson will present Robert Storrs, Rick 

Tosto, and Nathaniel Carr to testify as to why they did not make evidentiary objections, 

raise a First Amendment objection, or consult with an expert on rap music. 

Claim 14: An improper jury instruction likely caused the jury to vote for 

death to ensure Johnson was never released from custody.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that the jury was improperly instructed that Johnson could be 

released on parole if the jury did not sentence him to death. This Claim was procedurally 

defaulted, but the ineffective assistance of counsel that Johnson received during his state 

postconviction proceedings in failing to present this substantial Claim provides cause for 

the default and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathaniel Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for their failure to object to the 

incorrect jury instruction and failure to offer an alternate jury instruction.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the following relevant exhibit.

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Ex. 49 (ECF No. 20-19) Blank Jury Questionnaire: The questionnaire is offered 

as a representative of the questionnaires provided to all jurors. The questionnaire 

improperly advised potential jurors that if the jury sentenced Johnson to life 

imprisonment, the judge could sentence Johnson to prison for the rest of his natural life or 

prison with the possibility of parole after twenty-five years. Id. at 9. This supports 

Johnson’s argument that counsel were ineffective in properly instructing the jury.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 14, Johnson will present Robert Storrs, Rick 

Tosto, and Nathaniel Carr to testify as to why they did not object to the incorrect 

instruction, offer an alternate instruction, or consult an expert. 

Claim 15: Johnson was denied conflict-free counsel at the sentencing phase 

of the trial and at state postconviction.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

trial and state postconviction counsel were conflicted. To the extent the Claim was not 

exhausted, any default is due to the ineffective assistance of counsel that Johnson 

received during his state postconviction proceedings, which provides cause for the default 

and establishes prejudice. See Martinez, 566 U.S. at 17. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

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Deposition of Nathaniel Carr: Carr was consulted by Phyllis Hansen, the State’s 

witness, “about another murder committed by [Johnson].” TR 12/12/2003 at 6–7. It is 

necessary to depose Carr in order to determine the full scope of his conflict of interest in

consulting with the State’s star witness against Johnson.

Deposition of Phyllis Hansen: Hansen consulted Carr “about another murder 

committed by [Johnson].” TR 12/12/2003 at 6–7. It is necessary to depose Hansen in 

order to determine the full scope of Carr’s conflict of interest in consulting with the 

State’s star witness against Johnson.

Deposition of Director of Maricopa County Office of the Legal Advocate 

(“OLA”): The OLA represented Johnson in his state postconviction proceedings. The 

OLA also represented Jarvis Ross, Johnson’s co-defendant in the Affordable Massage 

robbery, and David Smith. The deposition is necessary to determine the full scope of 

OLA’s conflict of interest.

Deposition of OLA investigators: Johnson intends to obtain information 

regarding any investigation done by OLA investigators for either Johnson or Ross. The 

deposition is necessary to determine the full scope of OLA’s conflict of interest.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 15, Johnson will present witnesses and 

testimony including, but not limited to, Nathaniel Carr and Phyllis Hansen to testify as 

to Carr’s conflict of interest; and the Director of the OLA and OLA investigators to 

testify as to OLA’s conflict of interest.

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Claim 16: Trial counsel were ineffective at the penalty phase of Johnson’s 

trial.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel provided ineffective assistance in preparation for 

and at the mitigation phase of Johnson’s trial. Johnson contends this Claim was properly 

exhausted in state court. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs & Nathaniel Carr: Storrs and Carr can speak to 

the lack of reasonable trial strategy for their failure to properly investigate and prepare for 

the penalty phase, failure to properly prepare experts, and decision to stipulate and allow 

the jury to hear the co-defendant’s admissions.

Depositions of State Postconviction Counsel: Johnson seeks to depose Martin 

Lieberman, Charles Babbitt, Thomas Dennis, and Raquel Centeno-Fequiere, Johnson’s 

appointed state postconviction attorneys. These attorneys can address decisions 

regarding penalty phase claims during state postconviction proceedings. Further, the 

attorneys can address the State’s claim that Johnson properly waived his penalty claims. 

Depositions of Mary Durand, Nora Shaw, Pamela Siller, and David Wilcox:

Mary Durand, Nora Shaw, Pamela Siller, and David Wilcox each acted at one point as

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Johnson’s mitigation specialists. Durand also worked as the Mitigation Coordinator for 

the Maricopa County Office of Contract Counsel (“MCOCC”). Each can speak to the 

investigation they individually conducted and the functioning of the defense team, 

including any deficiencies in the investigation, development, or presentation of 

mitigation, and dealings with trial counsel.

Deposition of Arthur Hanratty: Defense investigator Hanratty will address the 

defense team’s failure to investigate. Hanratty had no file, billing records, or recollection 

of the case when interviewed during postconviction proceedings. 

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 50 (ECF No. 20-20) Detail of services for Siller Investigative Services: This 

document details the work and number of hours Pamela Siller spent on Johnson’s case.

These records are relevant to Johnson’s Claim that mitigation evidence was not 

sufficiently investigated.

Ex. 51 (ECF No. 20-21) Correspondence from Mary Durand: This 

correspondence from Durand, in her role as Mitigation Coordinator for MCOCC, notifies 

attorneys from the Office of Contract Counsel that the mitigation specialists were 

severely understaffed and underfunded and were unable to complete their investigations. 

These records are relevant to Johnson’s Claim that mitigation evidence was not 

sufficiently investigated.

Ex. 52 (ECF No. 20-22) Confidential memo to Johnson file from Pamela 

Siller: This document is a memo Siller provided to Storrs, detailing a mitigation 

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investigation plan. Counsel never completed the investigation. These records are relevant 

to Johnson’s Claim that mitigation evidence was not sufficiently investigated.

Ex. 53 (ECF No. 20-23) Declaration of Myra Johnson: This declaration from 

Johnson’s mother details Johnson’s first years of life, including the fact that he lived in a 

lead contaminated home and was developmentally delayed. The jury was not presented 

with this mitigation evidence due to counsels’ ineffectiveness.

Ex. 54 (ECF No. 20-24) Johnson’s health records from St. Joseph’s Hospital:

These medical records document Johnson’s automobile accident at age sixteen that 

resulted in a traumatic brain injury. The jury was not presented with this mitigation 

evidence due to counsels’ ineffectiveness.

Ex. 55 (ECF No. 20-27) Declaration of Dorubah Johnson: Johnson temporarily 

resided with his friend, Dorubah Johnson, and his family when he was a teenager. His

declaration describes how Johnson lacked a father figure in his life, because his father 

was extremely abusive, and looked up to Dorubah Johnson’s father. The jury was not 

presented with this mitigation evidence due to counsels’ ineffectiveness.

Ex. 56 (ECF No. 20-28) Declaration of Larry Johnson, Sr.: Larry Johnson, Sr., 

is Dorubah Johnson’s father. In his declaration, Larry Johnson describes how as a 

teenager, Johnson, asked to move into Larry Johnson’s house because he was looking for 

a stable environment with structure, rules, and a father figure. The jury was not presented 

with this mitigation evidence due to counsels’ ineffectiveness.

Ex. 57 (ECF No. 20-29) Request for expenditure of funds, Marc Walter, 

Ph.D.: Dr. Walter is a neuropsychologist who conducted a neuropsychological evaluation 

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of Johnson. Dr. Walter found that Johnson suffered from variable memory and executive 

impairment, with test performance indicating he has a genetic predisposition to left 

frontal brain dysfunction. This document shows that counsel requested funding to hire 

Dr. Walter; however counsel was ineffective because they did not have Dr. Walter testify 

about the results of his examination.

Ex. 58 (ECF No. 20-30) Progress notes prepared by Drake Duane, M.D.: Dr. 

Duane conducted an evaluation and testing of Johnson, including an MRI of his brain and 

electrical brain mapping. Dr. Duane found Johnson suffered from a cognitive 

impairment; findings which were consistent with Dr. Walter’s opinion. The jury was not 

presented with this mitigation evidence due to counsels’ ineffectiveness.

Ex. 59 (ECF No. 20-31) Records from the City of Baltimore Health 

Department: These records document the existence of lead at Johnson’s home. The jury 

was not presented with this mitigation evidence due to counsels’ ineffectiveness.

Ex. 78 (ECF No. 21-18) Behavioral Management Plan Arizona Department of 

Juvenile Corrections: A Behavioral Management Plan was developed for Johnson at the 

Adobe Juvenile Commitment Facility. The plan documents Ruben’s need for counseling, 

and shows that Johnson was never offered therapeutic intervention. The jury was not 

presented with this mitigation evidence due to counsels’ ineffectiveness.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 16, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs and Nathaniel Carr who will 

testify to the lack of a reasonable mitigation strategy, the failure to properly investigate 

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and prepare for the penalty phase and to properly prepare experts, and the decision to 

stipulate and allow the jury to hear the co-defendant’s admissions; Martin Lieberman, 

Charles Babbitt, Thomas Dennis, and Raquel Centeno-Fequiere will testify regarding 

penalty phase claims not raised during state postconviction proceedings and the State’s 

claim Johnson waived his penalty claims; Mary Durand, Nora Shaw, Pamela Siller, 

and David Wilcox will testify to the lack of a comprehensive, cohesive mitigation 

investigation plan; and Arthur Hanratty will testify that he was not assigned any 

investigative tasks by counsel.

Claim 17: Counsel were ineffective for failing to object to statutorily 

unauthorized victim impact testimony of Smith’s mother-in-law, 

Sandra Plinski.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

trial counsel were ineffective for failing to object to the victim impact testimony of 

Sandra Plinski. This Claim was procedurally defaulted, but the ineffective assistance of 

counsel that Johnson received during his state postconviction proceedings in failing to 

present this substantial Claim provides cause for the default and establishes prejudice. 

See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

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Depositions of Robert Storrs and Nathanial Carr: Storrs and Carr can speak to 

their failure to object to Sandra Plinski’s testimony and lack of reasonable trial strategy.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 17, Johnson will present witnesses and 

testimony including, but not limited to, Roberts Storrs and Nathaniel Carr, who will 

testify to their failure to object to Sandra Plinski’s inadmissible victim impact statement.

Claim 19: The imposition of the death penalty on persons twenty-one and 

younger at the time of the offense constitutes cruel and unusual 

punishment.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that executing a person who was twenty-one years old or younger at 

the time of their offense constitutes cruel and unusual punishment. This Claim was not 

presented in state court because it was previously unavailable. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of David Fassler, M.D.: Dr. David Fassler is a child and adolescent 

psychiatrist, who reviewed Johnson’s medical, mental health, educational, and 

correctional records. Dr. Fassler can speak to Johnson’s history of lead exposure, 

physical abuse, sexual abuse, head injury, substance abuse, frontal lobe and executive 

functioning, and auditory hallucinations. 

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Depositions of Robert Storrs and Nathaniel Carr: Storrs and Carr can address

cause to overcome any procedural default because there was no medical, legal, or societal 

consensus as to this Claim available to counsel at the time of trial.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Ex. 60 (ECF No. 20-32) Johnson’s birth certificate: This document is relevant 

to show that Johnson was under twenty-one years old at the time of the offense.

Ex. 61 (ECF No. 21-1) Declaration of Dr. David Fassler: Dr. Fassler’s 

declaration is relevant to Johnson’s Claim, because he opines that Johnson was exposed 

to factors that led to impaired and delayed brain development.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 19, Johnson will present witnesses and 

testimony including, but not limited to, Dr. David Fassler, who will testify that 

Johnson’s brain development was impaired and delayed; and Robert Storrs and 

Nathaniel Carr will testify that this Claim was not reasonably available to them at the 

time of Johnson’s trial based on the state of medical, legal, and societal studies on brain 

development.

/ / /

/ / /

/ / /

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Claim 20: Trial counsel were ineffective for failing to timely object, move to

strike, move for a mistrial, and seek a curative instruction when 

evidence of other homicide charges and speculation that Johnson’s 

self-inflicted scars marked prior assaults were introduced during 

the penalty phase.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel provided ineffective assistance of counsel in failing 

to timely object or take any other remedial action when the jury heard testimony relating 

to other homicide charges, and speculation that self-inflicted scars signified prior 

assaults. This Claim was procedurally defaulted, but the ineffective assistance of counsel 

that Johnson received during his state postconviction proceedings in failing to present this 

substantial Claim provides cause for the default and establishes prejudice. See Martinez, 

566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs & Nathanial Carr: Storrs and Carr can speak to 

the lack of reasonable trial strategy for failing to timely object or take any curative 

measures when the jury heard prejudicial testimony.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the following relevant exhibit.

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Ex. 65 (ECF No. 21-5) United States v. Johnson, CR-00-72-PHX-RGS: Johnson 

was acquitted of an unrelated murder charge; therefore, testimony about this charge was 

improper and prejudicial “other acts” evidence.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 20, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs and Nathaniel Carr who will 

testify to their ineffective assistance in failing to object or request a curative instruction 

for the prejudicial testimony presented by the State.

Claim 21: Trial counsel erred in not seeking a mistrial after arguing the 

grand jury indictment was deficient because the grand jury did 

not consider any of the aggravating circumstances.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

trial counsel provided ineffective assistance in failing seek a mistrial based on the 

deficient grand jury indictment. This Claim was procedurally defaulted, but the 

ineffective assistance of counsel that Johnson received during his state postconviction

proceedings in failing to present this substantial Claim provides cause for the default and 

establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

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Depositions of Robert Storrs & Rick Tosto: Storrs and Tosto can speak to the 

lack of reasonable trial strategy for the errors enumerated in this Claim, including failing 

to challenge the deficiency in the grand jury proceedings.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 21, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs and Rick Tosto, who will testify 

to their ineffectiveness in failing to challenge the deficient grand jury indictment.

Claim 25: Appellate counsel was ineffective.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

appellate counsel was ineffective. Johnson exhausted this Claim in state court. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following request.

Deposition of Kerrie Droban: Johnson seeks to depose Kerrie Droban, who was 

appointed as his appellate attorney. Droban can speak to the lack of reasonable appellate 

strategy for the errors enumerated in this Claim, the lack of preparation and investigation 

conducted, her failure to appeal clearly erroneous decisions by trial counsel, and her 

failure to raise and preserve constitutional challenges. 

/ / / 

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1. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 25, Johnson will present witnesses and 

testimony including, but not limited to, Kerrie Droban, who will testify as to her 

ineffectiveness in presenting Johnson’s direct appeal.

Claim 26: Trial counsel erred by conceding Johnson’s death eligibility in 

violation of McCoy v. Louisiana. Direct appeal counsel erred by 

conceding Johnson’s guilt, also in violation of McCoy.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial and appellate counsel were ineffective in conceding 

Johnson’s death eligibility and guilt. This Claim was procedurally defaulted, but the 

ineffective assistance of counsel that Johnson received during his state postconviction

proceedings in failing to present this substantial Claim provides cause for the default and 

establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs & Nathanial Carr: Storrs and Carr can speak to 

the lack of reasonable trial strategy, including counsels’ decision to inform the jury 

Johnson was death-eligible.

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Deposition of Kerrie Droban: Droban can speak to the lack of reasonable 

appellate strategy, including counsel’s decision to concede Johnson’s guilt, over 

Johnson’s objection.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the following relevant exhibit.

Ex. 69 (ECF No. 21-9) Appellant’s “Demand to Withdraw Counsel for 

Conflict of Interest”: Johnson filed this motion requesting appellate counsel withdraw 

from his case, arguing that Droban had not communicated with him and was not 

representing his interests. This document is relevant to Johnson’s Claim that appellate 

counsel lacked a reasonable strategy on appeal in conceding Johnson’s guilt. 

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 26, Johnson will present witnesses and 

testimony including, but not limited to, Roberts Storrs, Nathaniel Carr, and Kerrie 

Droban who will testify to their decision to concede Johnson’s guilt and death-eligibility.

Claim 27: Trial counsel were ineffective for failing to request an instruction 

to caution the jury that multiple witnesses’ testimony should be 

examined with greater caution due to receipt of government 

benefits

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel provided ineffective assistance for failing to advise 

the jury that the testimony of multiple witnesses should be considered with greater 

caution because they received government benefits. This Claim was procedurally 

defaulted, but the ineffective assistance of counsel that Johnson received during his state 

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postconviction proceedings in failing to present this substantial Claim provides cause for 

the default and establishes prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of Robert Storrs, Rick Tosto, & Nathaniel Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for their failure to request a 

cautionary instruction for incentivized contract witness testimony.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the relevant exhibits below.

Exs. 71 & 72 (ECF Nos. 21-11 & 21-12) Ninth Circuit Model 4.9: These two 

instructions are the Ninth Circuit’s pattern jury instructions for witnesses who have 

received government benefits. The jury instruction is relevant to Johnson’s case because

counsel had pattern instructions that should have been requested.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 27, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs, Rick Tosto, and Nathaniel Carr

who will testify as to why they did not request an instruction on weighing the testimony 

of witnesses who have received a benefit.

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Claim 28: Trial counsel were ineffective for failing to challenge the 

handwriting analysis offered by the prosecution.

Johnson requests discovery, expansion of the record, and an evidentiary hearing in 

support of his Claim that trial counsel were ineffective for failing to challenge the 

handwriting analysis. This Claim was procedurally defaulted, but the ineffective 

assistance of counsel that Johnson received during his state postconviction proceedings in 

failing to present this substantial Claim provides cause for the default and establishes 

prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathaniel Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy for their failure to challenge the 

State’s handwriting expert or engage a defense handwriting expert.

2. Expansion of the Record (Rule 7)

Johnson requests expansion of the record to include the following relevant exhibit.

Ex. 75 (ECF No. 21-15) Report of Professor Mark Denbeaux, J.D.: Professor 

Denbeaux is an expert on the limitations of forensic evidence. Denbeaux contends that if 

trial counsel consulted with a forensic evidence expert, the testimony of the State’s 

handwriting expert would have been excluded or given no weight by the jury. 

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Denbeaux’s report is significant to Johnson’s Claim because it shows counsel was 

ineffective for failing to call an expert.

3. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 28, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs, Rick Tosto, and Nathaniel Carr

who will testify regarding their failure to challenge the State’s handwriting expert or call 

an expert of their own.

Claim 29: Significant portions of the trial proceedings were not recorded.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

trial counsel provided ineffective assistance in failing to ensure all portions of the trial 

proceedings were recorded. This Claim was procedurally defaulted, but the ineffective 

assistance of counsel that Johnson received during his state post-conviction proceedings 

in failing to present this substantial Claim provides cause for the default and establishes 

prejudice. See Martinez, 566 U.S. at 17.

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Depositions of Robert Storrs, Rick Tosto, & Nathanial Carr: Storrs, Tosto, and 

Carr can speak to the lack of reasonable trial strategy in their failure to challenge the 

absence of a complete record, and can reconstruct the unrecorded portions of trial.

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2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 29, Johnson will present witnesses and 

testimony including, but not limited to, Robert Storrs, Rick Tosto, and Nathaniel Carr, 

who will address their failure to raise this Claim and can reconstruct the unrecorded 

portions of trial.

Claim 30 (D) & (E): Arizona’s capital sentencing scheme is unconstitutional.

Johnson is asking for expansion of the record in support of his Claim that 

Arizona’s capital sentencing scheme is unconstitutional, because Arizona does not set 

forth objective standards to guide the sentence in weighing the aggravating circumstances 

against the mitigating circumstances, (Claim 30(D)), and Arizona’s “heinous, cruel, or 

depraved” aggravating circumstance is vague and fails to channel the sentencer’s 

discretion, (Claim 30(E)). Johnson exhausted a portion of this Claim in state court. To the 

extent any subsection of Claim 30 is unexhausted, any default is due to the ineffective 

assistance of counsel that Johnson received during his state post-conviction proceedings,

which provides cause for the default and establishes prejudice. See Martinez, 566 U.S. at 

17. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

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Subpoena Duces Tecum to the County Attorney’s Office of each Arizona 

County: For Claim 30 (D), Johnson requests the following information for each crime 

charged as a first degree murder from 2000 onward: the date and facts of the crime, case 

number, defendant’s name, charges brought, whether the death penalty was sought, 

aggravating circumstances alleged, disposition, and sentence imposed. For Claim 30(E), 

Johnson requests the following information for each crime charged as a first degree 

murder from 2000 onward in which the “especially heinous” aggravating circumstance 

was noticed: the date and facts of the crime, case number, defendant’s name, charges 

brought, other aggravating circumstances alleged, aggravating circumstances found (if 

any), sentence imposed, and information from special verdict forms (if any).

Claim 37: Executing Johnson after more than fifteen years on death row is 

unconstitutional.

Johnson requests discovery and an evidentiary hearing in support of his Claim that 

executing him after more than fifteen years on death row is unconstitutional. Johnson 

exhausted this Claim in state court. 

1. Discovery (Rule 6)

Johnson requires the assistance of the Court in obtaining information in support of 

his Claim. He has made credible allegations of a constitutional violation and thus has 

shown good cause for this request. See Bracy, 520 U.S. at 904, 908–09. Accordingly, he 

moves for court orders for the following requests.

Deposition of David Shinn: David Shinn is the Director of the Arizona 

Department of Corrections. Shinn can address the conditions of death row in Arizona.

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Deposition of Jeff Van Winkle: Jeff Van Winkle is the Warden of Arizona Prion 

Complex—Florence, where Johnson is housed. Van Winkle can address the conditions of 

death row, and the conditions of Johnson’s housing specifically.

2. Evidentiary Hearing (Rule 8)

At an evidentiary hearing on Claim 37, Johnson will present witnesses 

and testimony including, but not limited to, David Shinn and Jeff Van Winkle on the 

conditions of death row and Johnson’s life on death row.

IV. CONCLUSION

For the foregoing reasons, Johnson requests that the Court grant his requests for 

discovery, expansion of the record, and an evidentiary hearing. He has been diligent, is 

not barred by AEDPA or other legal authority from presenting new evidence, and 

should be allowed to provide additional support for his constitutional claims and his 

Martinez arguments.

Respectfully submitted this 16th day of December, 2019.

Respectfully submitted

RENE L. VALLADARES

Federal Public Defender

/s/ Brad D. Levenson

BRAD D. LEVENSON

Assistant Federal Public Defender

/s/ Stacy M. Newman 

STACY M. NEWMAN

Assistant Federal Public Defender

 

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CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2019, I electronically filed the foregoing 

Notice of Request for Evidentiary Development with the Clerk’s Office by using 

CM/ECF system. I certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by CM/ECF system. 

Laura P. Chiasson

Assistant Attorney General

Laura.Chiasson@azag.gov 

/s/ Sara Jelinek

An Employee of the 

Federal Public Defenders Office 

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