Burns v. Shinn et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Johnathan Ian Burns,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-21-01173-PHX-SPL
DEATH PENALTY CASE
ORDER
Petitioner Johnathan Ian Burns has filed a motion to “temporarily lift[ ] the stay” of
this case, in order to seek discovery (Doc. 101) and has separately lodged a proposed
“motion for leave to conduct discovery” (Doc. 102). Because this Court need only lift the
stay if it grants Burns leave to file his lodged motion for leave to conduct discovery, the
Court construes the motion to temporarily lift the stay (Doc. 101) as asking the Court to
lift the stay if it grants Burns leave to file his lodged discovery motion. Respondents oppose
lifting the stay or granting leave to file the lodged motion. (Doc. 104.) For the reasons
below, the Court will deny Burns leave to file his lodged discovery motion and will deny
leave to lift the stay as moot.
I. BACKGROUND
Burns was sentenced to death for first-degree murder and to prison for kidnapping,
sexual assault, and misconduct involving weapons. State v. Burns (Burns I), 344 P.3d 303,
313, ¶¶ 7–8 (Ariz. 2015). On direct appeal, the Arizona Supreme Court affirmed his
convictions and sentences, denying a claim that Juror 11 had engaged in misconduct. Id. at
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328–30, ¶¶ 112–23. On postconviction review (PCR), the trial court denied relief on
Burns’s claims, including one based on Simmons v. South Carolina, 512 U.S. 154 (1994).1
(4/4/19 Minute Entry, 94734785.PDF.) The Arizona Supreme Court denied review
(6/30/21 Minute Letter); Burns then filed a petition for certiorari challenging the denial of
his Simmons claim, see Burns v. Arizona (Burns II), 143 S. Ct. 997 (2023) (mem.).
In late 2022, while his certiorari petition was pending, Burns filed his amended
habeas corpus petition in this Court. (Docs. 1 and 47.) As relevant here, in his amended
petition, Burns raised as Claim 1, the Juror 11 misconduct claim (Doc. 47 at 12–17); as
Claim 2, misconduct of three other jurors (id. at 17–23); as Claim 13, the State’s failure to
disclose impeachment evidence (id. at 119–33); and as Claim 19, his Simmons claim (id.
at 176–79).
Claims 2 and 13 were not raised in state court. Because a habeas claim left unraised
in the state courts risks procedural default on federal habeas review, see Gray v.
Netherland, 518 U.S. 152, 161–62 (1996), Burns moved to stay this habeas case while he
raised these claims in state court (Doc. 48). While Burns’s stay motion was pending, the
Supreme Court granted Burns certiorari, vacated the denial of PCR relief, and remanded
Burns’s Simmons claim for review on the merits. Burns II, 143 S. Ct. 997. This Court later
granted the stay motion and required Burns to file periodic status reports concerning the
state court proceedings. (Doc. 86, sealed.)
The trial court reopened Burns’s original PCR, the State moved to affirm the prior
denial of Burns’s claims for relief, and Burns moved to add claims to his PCR petition.
(Doc. 103 at 1–2.) The court affirmed its previous denial of all but the Simmons claim and
denied leave to add new claims to the original PCR petition, noting that Burns could raise
new claims in a successive PCR petition. (Id. at 2–3.) Burns did just that by filing a
successive PCR petition, raising Claims 2 and 13, as well as a Confrontation Clause claim
1 Simmons holds that when a capital defendant’s future dangerousness is at issue and state
law bars his release on parole, due process entitles him to inform the jury, through argument
or jury instruction, that he would be ineligible for parole if not sentenced to death. 512 U.S.
at 156, 177–78; see Cruz v. Arizona, 598 U.S. 17, 21 (2023).
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not included in the amended habeas petition. (Id. at 3.) In June 2025, the trial court denied
the Simmons claim on the merits, i.e., Claim 19 in the amended petition, and denied the
three claims included in the successive PCR petition as successive and untimely. (Id.)
Burns has since filed a petition for review in the Arizona Supreme Court, which remains
pending. Active Cases, https://perma.cc/5N9X-YNNE. Burns also filed his lift-of-stay
motion, which is fully briefed, and lodged his discovery motion. (Docs. 101–02 and 104–
05.) In his discovery motion, Burns seeks discovery in support of Claims 1, 2, 13, and the
Confrontation Clause claim; he notes that he will make future discovery requests. (Doc.
102.)
II. DISCUSSION
The outcome of the lift-of-stay motion boils down to whether the Court should grant
Burns leave to file the lodged discovery motion. In terms of the Confrontation Clause
claim, the Court will deny leave to file, as Burns did not raise it in his amended habeas
corpus petition. See Bridges v. Adams, No. CIV S-08-2316 JAM GGH P, 2009 WL 530356,
at *3 (E.D. Cal. Mar. 2, 2009) (denying discovery request for an “actual innocence claim,”
in part, because the claim was “not raised” in a habeas petition). Burns otherwise argues
there is good cause to grant discovery in support of Claims 1, 2, and 13. (Doc. 101 at 3–9.)
Respondents contend that the Court should deny leave to file the discovery motion as
premature under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
(Doc. 104 at 1–5). Because this case commenced after the AEDPA’s enactment, the Court
considers Burns discovery request in light of the AEDPA. See Lindh v. Murphy, 521 U.S.
320, 327, 336 (1997).
A. Discovery in Habeas Corpus Cases under the AEDPA
A habeas petitioner is not allowed discovery as a “matter of ordinary course.” Bracy
v. Gramley, 520 U.S. 899, 904 (1997). Under Rule 6(a) of the Rules Governing § 2254
Cases, a federal court “may” grant discovery for “good cause” shown. Rule 6(a) Governing
§ 2254 Cases. The 1996 enactment of the AEDPA amended § 2254, and the determination
of good cause for discovery. See, e.g., Isaacs v. Head, 300 F.3d 1232, 1249–50 (11th Cir.
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2002) (applying AEDPA to the “good cause” analysis); Charles v. Baldwin, No. CV-97-
380-ST, 1999 WL 694716, at *2–3 (D. Or. Aug. 2, 1999) (noting that the AEDPA “altered
the discovery allowable” in a habeas case). Congress enacted the AEDPA to decrease
delays, Woodford v. Garceau, 538 U.S. 202, 206 (2003), and to “further the principles of
comity, finality, and federalism,” Williams v. Taylor, 529 U.S. 420, 436 (2000). Section
2254(b)(1) and (d) of the AEDPA advance these goals. Shoop v. Twyford, 596 U.S. 811,
818 (2022); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002).
Under § 2254(b)(1), a federal habeas court may not consider a habeas petition
containing claims exhausted in state court and claims unexhausted in state court. i.e., a
mixed petition. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). A claim is not
exhausted until it has been raised in the state’s highest court,2 see O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999), to afford the state courts the “first opportunity to
correct federal constitutional errors and minimizes federal interference and disruption” of
state court cases, Rose v. Lundy, 455 U.S. 509, 514 (1982).
When a claim is raised, but barred, in state court on “adequate and independent state
law grounds,” the claim becomes procedurally defaulted, unreviewable by a federal habeas
court, Dretke v. Haley, 541 U.S. 386, 392 (2004), unless either (1) “cause for the default”
and “actual prejudice” from the breach of federal law is established, or (2) the “failure to
consider the claim[]” would result in a “fundamental miscarriage of justice.” Coleman, 501
U.S. at 750. Under the AEDPA, discovery is unavailable for an unexcused procedurally
defaulted claim. See, e.g., Ellison v. Thornell, 721 F.Supp.3d 820, 985–86 (D. Ariz. 2024)
(denying discovery in support of unexcused procedurally defaulted claims).
Section 2254(d) governs this Court’s review of a claim when a state court resolved
2 Unlike in death penalty cases, an Arizona petitioner sentenced to less than the death
penalty may exhaust his federal claims by presenting them in a procedurally proper way to
the Arizona Court of Appeals on direct appeal or in PCR proceedings, without seeking
discretionary review in the Arizona Supreme Court. Crowell v. Knowles, 483 F. Supp. 2d
925, 928-30, 933 (D. Ariz. 2007) (following 1989 statutory amendment, Arizona Court of
Appeals has jurisdiction over criminal convictions involving less than a death sentence);
cf. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (citing pre-1989 statute).
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the claim on the merits. Under § 2254(d), a federal habeas court may not grant the writ on
such a claim, unless (1) the state court’s denial of the claim was “contrary to, or involved
an unreasonable application of, clearly established” Supreme Court law, or (2) the state
court’s decision “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Pizzuto v.
Yordy, 947 F.3d 510, 523 (9th Cir. 2019) (quoting § 2254(d)). When a state’s highest court
summarily affirms the denial of relief on the merits by a lower court, a federal habeas court
reviews a claim based on the “last reasoned state[-]court decision.” Pizzuto, 947 F.3d at
523.
Section 2254(d) review is limited to the record that was before the state court. Cullen
v. Pinholster, 563 U.S. 170, 181 (2011) (§ 2254(d)(1) review); Gulbrandson v. Ryan, 738
F.3d 976, 993 n.6 (9th Cir. 2013) (§ 2254(d)(2) review). Unless a claim denied on the
merits by the state court satisfies either § 2254(d)(1) or (2) based on the state court record,
a discovery request cannot be granted. Pinholster, 563 U.S. at 185; Runningeagle v. Ryan,
686 F.3d 758, 773–74 (9th Cir. 2012).
B. Analysis
In light of § 2254(b)(1) and (d), as well as the law of procedural default, leave to
conduct discovery may only be granted if this Court determines that a subject claim is
either not procedurally defaulted, that any procedural default is excused, or that the state
court denied the claim on the merits and the claim meets § 2254(d)(1) or (2). See
Runningeagle, supra; Ellison, supra. If it cannot presently make either determination, a
federal habeas court will deny leave to file the lodged motion as premature. See Twyford,
596 U.S. at 818, 821 (confirming that a federal habeas court “must consider” each AEDPA
requirement before permitting evidentiary development).
Claim 1 was raised and denied on the merits by the Arizona Supreme Courton direct
appeal. Burns I, 344 P.3d at 328–30, ¶¶ 112–23. Thus, it is exhausted and may be reviewed
under § 2254(d). See Coleman, 501 U.S. at 731. Claims 2, 13, and 19, however, are
currently unexhausted. They were raised on PCR in the original or successive PCR petition,
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and the state trial court denied them. (Doc. 103 at 3.) The trial court expressly denied
Claims 2 and 13 as successive and untimely and denied Claim 19, the Simmons claim, on
the merits. (Id.) The parties do not appear to dispute that these three claims are now before
the Arizona Supreme Court in a petition for review; as to each of these claims, the Arizona
Supreme Court may deny review, grant review and affirm, or grant review and reverse.
See https://perma.cc/5N9X-YNNE. Because these three claims have not yet been decided
by the Arizona Supreme Court, they are not currently exhausted. See O’Sullivan, 526 U.S.
at 848.
As to Claims 2, 13, and 19, whether the Arizona Supreme Court will deny review,
grant review and affirm, or grant review and reverse is currently unknown. Consequently,
it is premature for this Court to attempt to determine whether these claims are procedurally
defaulted and whether any default is excused, or whether they are subject to review under
§ 2254(d). See, e.g., Ellison, 721 F.Supp.3d at 985–86. And it would be speculative, and
improper, to make assumptions about how the Arizona Supreme Court will rule. Nor can
the Court use the trial court’s ruling as the last-reasoned, state-court decision for Claims 2,
13, or 19, so long as the Arizona Supreme Court might grant review. See Pizzuto, 947 F.3d
at 523. Under these circumstances, the Court will deny Burn’s motion for leave to file his
discovery motion as premature.
Citing Twyford, 596 U.S. at 818, Burns argues that granting him leave to file his
lodged discovery motion and resolving that request now would further the AEDPA’s goals
to avert avoidable delay of this case while the PCR case remains pending in state court.
(Doc. 101 at 6–7.) In Twyford, the United States Supreme Court noted that habeas
proceedings should not be unnecessarily prolonged. 596 U.S. at 820. But it held that,
“consistent with [the] AEDPA,” a federal habeas court must first resolve whether “new
evidence” may be considered under § 2254(e), before admitting such evidence. Id. at 819–
20 (quoting Ramirez, 596 U.S. at 318). Section 2254(e) requires a federal court to “presume
correct” the state court’s factual findings unless that presumption is rebutted by clear and
convincing evidence. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002). In
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addition, the Supreme Court emphasized that a federal court “must consider” each AEDPA
requirement before permitting evidentiary development. Id. at 821.
Burns cites no authority to support that this Court may bypass AEDPA requirements
to grant him leave now to conduct evidentiary development in support of claims that are
currently pending in state court.3 At this juncture, whether, and what new evidence might
result if Burns were granted leave to file his discovery motion now, is speculative and
premature.
Alternatively, Burns seeks leave in the lodged motion to depose three jurors, as well
as Norman Wade, the former chief toxicologist for the Maricopa County Medical
Examiner’s Office, in connection with Claims 1, 2, and 13, in order to preserve such
evidence, under Federal Rule of Civil Procedure 27(a), should this Court later determine
that such testimony may be admitted in support of those claims.4 (Doc. 101 at 8–9; Doc.
102.) Rule 27(a) allows a person to request a court order to depose individuals, in order to
“perpetuate their testimony,” when such perpetuation “may prevent a failure or delay of
justice.” Fed. R. Civ. P. 27(a)(1) and (3). Thus, “one who expects” to become a party to an
action may use Rule 27(a) to “preserve important testimony that might otherwise be lost.”
Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961). It is therefore used to
preserve known evidence in the form of testimony, rather than to discover potential new
evidence. See State of Nev. V. O’Leary, 63 F.3d 932, 933–36 (9th Cir. 1995); Stanley v.
Ayers, CV 07-04727, 2018 WL 2463383, at *6 (N.D. Cal. June 1, 2018) (petitioner failed
to cite authority suggesting that “Rule 27 discovery” may be ordered when a mixed petition
is pending, distinguishing cases where Rule 27 discovery was allowed in connection with
3 Nor, as asserted by Burns, does Bracy, 520 U.S. at 902, alter this court’s conclusions.
Bracy applied Rule 6(a) under pre-AEDPA law. See Pham v. Terhune, 400 F.3d 740, 741–
42 (9th Cir. 2005) (post-AEDPA application of Rule 6(a)); see also Lindh, 521 U.S. at 327
and 336; Charles, 1999 WL 694716, at *3 (distinguishing Bracy because Bracy did not
involve the “initial hurdle posed by [the] AEDPA”).
4 To the extent that Burns seeks to depose Wade in connection with the Confrontation
Clause claim not included in the Amended Petition, leave to depose will be denied as moot.
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exhausted petitions).
Burns argues that the application of Rule 27(A) in Calderon v. United States District
Court for the Northern District of California, 144 F.3d 618 (9th Cir. 1998), extends to his
deposition requests. (Doc. 101 at 8–9.) Calderon, a pre-AEDPA case, involved a death-
row prisoner who raised “exhausted and unexhausted claims” in a habeas corpus petition.
144 F.3d at 619. The district court let petitioner delete the unexhausted claims, agreed to
hold the amended petition in abeyance while he “exhausted his unexhausted claims in state
court,” and “directed” him to “file a second amended petition” with the “newly exhausted
claims.” Id. at 619–20. The court also granted petitioner’s motion to depose a witness
“relate[d] to an unexhausted claim” under Rule 27(a), finding “good cause and the need to
perpetuate” that testimony. Id. at 620.
On appeal, the Ninth Circuit found the order lawful. Id. at 621. It explained that
discovery requests should be denied when a habeas corpus petition contains “exhausted
and unexhausted claims,” but that the petitioner’s operative petition contained “only
exhausted” claims. Id. In essence, the Ninth Circuit held that Rule 27(a) does not apply to
mixed petitions.5 See Stanley v. Ayers, No. 07-cv-04727-EMC, 2018 WL 2463383, at *6
(N.D. Cal. June 1, 2018) (petitioner failed to cite authority suggesting that “Rule 27
discovery” may be ordered when a mixed petition is pending, citing and distinguishing
Calderon, 144 F.3d at 621). Because the petition in Calderon only had exhausted claims,
the Ninth Circuit assessed whether the district court had reversibly erred in granting the
Rule 27(a) request. 144 F.3d at 621. It found that while the requested deposition concerned
5 In Calderon, the Ninth Circuit described Rule 27(a) as a form of discovery. 144 F.3d at
621. This description appears to contradict the Ninth Circuit’s statement in O’Leary that
Rule 27(a) is not used for discovery. 63 F.3d 932, 933–36. This apparent contradiction does
not impact this Court’s finding that the lodged discovery motion is premature. Calderon’s
holding that Rule 27(a) does not apply to mixed petitions is the rule of law in the Ninth
Circuit, 144 F.3d at 621, and coincides with Twyford’s statement that a federal court “must
consider” each AEDPA requirement before permitting evidentiary development, 596 U.S.
at 821. Regardless of whether Rule 27(a) is a form of discovery, Burns seeks to use Rule
27(a) as a form of evidentiary development.
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an unexhausted claim, the district court had “appropriate[ly]” applied Rule 27(a). Id. at
621–22.
Calderon does not support Burns’s request for leave to file. Unlike the operative
petition in Calderon, Burns’s operative petition contains both exhausted and unexhausted
claims, and this case is stayed. Calderon, moreover, was a pre-AEDPA case and was
decided before Pinholster, Twyford, and Runningeagle confirmed that a federal district
court must review a habeas claim under § 2254(d) before it resolves a corresponding
discovery request. See Twyford, 596 U.S. at 818, 821; Pinholster, 563 U.S. at 185;
Runningeagle, 686 F.3d at 773–74. Further, unlike the habeas claim in Calderon, the
procedural status of Claims 1, 2, and 13 under § 2254(b)(1) and (d), as well as the risk of
procedural default, makes resolution of the status of those claims at best speculative for the
reasons discussed above.
The Court will deny Burns leave to file his lodged discovery motion and will
accordingly deny the motion to lift the stay as moot. The Court anticipates that after the
pending state court proceedings conclude, the Court will lift the stay and amend the due
date to file a notice of a request to develop the evidence. Burns may then separately seek
leave to file a new discovery motion.
Accordingly,
IT IS ORDERED construing Burns’s lift-of-stay motion (Doc. 101) as a motion
to temporarily lift the stay of this case, in order to grant Burns leave to file the discovery
motion lodged at Doc. 102, and so construed, denying a temporary lift of the stay and
denying Burns leave to file the lodged discovery motion.
IT IS FURTHER ORDERED that Burns’s lodged motion for leave to conduct
discovery (Doc. 102) must not be filed.
//
//
//
//
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IT IS FURTHER ORDERED that starting from the date of his most recent Status
Report (Doc. 103), Burns must file a report every 90 days on the status of his state-court
proceedings and that within 21 days of the state-court proceedings’ conclusion, Burns
must move to have this Court lift the stay. Within the motion to leave the stay, Burns must
propose an amended briefing schedule and include Respondents’ position on the proposal.
Dated this 12th day of December, 2025.
Honorable Steven P. Logan
United States District Judge
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