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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ruben Myran Johnson,

Petitioner,

v. 

David Shinn, et al., 

Respondents.

No. CV-18-00889-PHX-MTL

ORDER 

DEATH PENALTY CASE

Before the Court is Petitioner Ruben Myran Johnson’s Motion for Reconsideration. 

(Doc. 60.) Johnson, an Arizona death row inmate, filed a petition for writ of habeas corpus 

on December 17, 2018. (Doc. 18.) On January 18, 2019, he filed a motion for a stay and 

abeyance under Rhines v. Weber, 544 U.S. 269 (2005), so that he could return to state court 

to exhaust a number of claims. (Doc. 23.) The Court denied the motion. (Docs. 29, 32.)

Now, three years later, Johnson asks the Court to reconsider that ruling and stay his habeas 

proceedings.

DISCUSSION

In Rhines the Supreme Court reiterated that a federal court may not “adjudicate 

mixed petitions for habeas corpus, that is, petitions containing both exhausted and 

unexhausted claims.” 544 U.S. at 273 (citing Rose v. Lundy, 455 U.S. 509, 518–519 

(1982)). The Court held, however, that “a federal district court has discretion to stay [a] 

mixed petition to allow the petitioner to present his unexhausted claims to the state court 

in the first instance, and then to return to federal court for review of his perfected petition.” 

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Id. at 271–72. This discretion is to be exercised under “limited circumstances,” id. at 277, 

because “routinely granting stays would undermine the AEDPA’s goals of encouraging 

finality and streamlining federal habeas proceedings,” Blake v. Baker, 745 F.3d 977, 981–

82 (9th Cir. 2014); see Rhines, 544 U.S. at 277. A stay of a mixed petition is appropriate if 

(1) the petitioner had good cause for his failure to exhaust his claims in state court; (2) the 

petitioner’s unexhausted claims are meritorious; and (3) there is no indication the petitioner 

engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.

In denying the first motion for a stay, the Court rejected Johnson’s argument that 

the claims for which he sought a stay were unexhausted. The Court concluded, instead, that 

the claims were “technically exhausted” because they would be found procedurally 

defaulted under Arizona law. (Docs. 29, 32.) The Court rejected Johnson’s argument that 

the claims fit within Arizona’s exceptions to preclusion based on actual innocence, under 

Arizona Rule of Criminal Procedure 32.1(h); a significant change in the law, under Rule 

32.1(g); or newly discovered material facts, Rule 32.1(e). (Doc. 29.) After additional 

briefing, the Court determined that Johnson’s claims under Lynch v. Arizona, 578 U.S. 613 

(2016),1 Claim 14, and McCoy v. Louisiana, 138 S. Ct. 1500 (2018), Claim 26, were also 

technically exhausted and not subject to a Rhines stay because neither Lynch nor McCoy

represented a significant change in the law under Rule 32.1(g). (Doc. 32.)

A district court may grant a motion to reconsider only in “highly unusual 

circumstances.” School Dist. No. 1J. Multnomah County v. ACandS, Inc., 5 F.3d 1255, 

1263 (9th Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented 

1

In Lynch the Supreme Court held that an Arizona capital defendant who committed 

murder after 1993 is entitled to a parole-ineligibility instruction if the State makes his 

future dangerousness an issue. 578 U.S. at 616; see Simmons v. South Carolina, 512 U.S. 

154 (1994). The Arizona Supreme Court subsequently ruled that Lynch “was not a

significant change in the law for purposes of permitting relief pursuant to Rule

32.1(g).” State v. Cruz, 251 Ariz. 203, 204, 487 P.3d 991, 992 (2021) cert. granted 142 S.

Ct. 1412 (2022).

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with newly discovered evidence, (2) committed clear error or the initial decision was 

manifestly unjust, or (3) if there is an intervening change in controlling law.” Id.

Under the rules of this District, motions to reconsider are granted only if the movant 

makes a showing of “manifest error or new facts or legal authority that could not have been 

brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g). A 

motion for reconsideration must “point out with specificity the matters that the movant 

believes were overlooked or misapprehended by the Court,” and “any new matters being 

brought to the Court’s attention for the first time and the reasons they were not presented 

earlier.” Id. Motions for reconsideration must not “repeat any oral or written argument 

made by the movant in support of . . . the motion that resulted in the Order.” Id.

Johnson seeks reconsideration based on what he characterizes as newly discovered 

evidence and an intervening change in the controlling law. (Doc. 60 at 3.) He indicates that 

he is pursuing a second round of post-conviction relief proceedings in state court in which 

his counsel intend to “raise new evidence” and “unexhausted claims.” (Id. at 3, 8.) He also 

argues that the recent grant of certiorari by the United States Supreme Court in Cruz v. 

Arizona, No. 21-846, 2022 WL 892101 (U.S. March 28, 2022), “has implications for [his] 

case and could change controlling law.” (Doc. 60 at 4.)

Johnson fails to meet the criteria necessary for reconsideration. First, he has not 

offered the Court any “newly discovered evidence.” ACandS, Inc., 5 F.3d at 1263. Rather, 

he alludes to unspecified new facts and new claims that, “upon information and belief,” 

PCR counsel will present in state court. (Doc. 60 at 2, 7–8.) He offers no new arguments 

as to why these facts could not have been presented earlier. Finally, he does not show the 

Court committed “manifest error” in previously denying a stay. Johnson fails to satisfy 

Rule 7.2(g).

Johnson next argues that he is entitled to a stay pending the Supreme Court’s 

decision in Cruz v. Arizona. In Cruz the Supreme Court will determine whether Rule 

32.1(g) is an independent and adequate state-law grounds for judgment. Cruz, 142 S. Ct. 

1412 (2022). Johnson contends that the outcome of that case could undermine this Court’s 

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conclusion that he was precluded from exhausting Claim 14 in state court because Lynch

was not a significant change in the law under Rule 32.1(g).

The Court acknowledges that whether there is an available state remedy for Johnson 

to exhaust a Lynch claim may turn on the outcome of the proceedings in Cruz. While 

Johnson suggests that he may raise a “Cruz claim” in state court, there is no evidence such 

a claim has been filed. Accordingly, the Court determines that, upon review of the 

pleadings in this case, if the outcome of Johnson’s claim that his jury was improperly 

instructed under Simmons and Lynch turns on whether Rule 32.1(g) is an independent and 

adequate state law grounds for a judgment, and the Supreme Court in Cruz has not issued 

its decision, the Court will take appropriate action at that time.

Accordingly,

IT IS ORDERED denying Johnson’s Motion for Reconsideration (Doc. 60). 

IT IS FURTHER ORDERED that the parties shall notify the Court if a 

Simmons/Lynch claim is filed in state court, the outcome of the claim, and the outcome of 

Cruz. The parties may not supplement their arguments without first seeking authorization 

from the Court. 

Dated this 28th day of April, 2022.

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