Richard Greenway v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD HARLEY GREENWAY, No. 14-15309

Petitioner-Appellant,

D.C. No.

v. 4:98-cv-00025-

RCC

CHARLES L. RYAN, Director of

Arizona Department of Corrections,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, Chief Judge, Presiding

Argued and Submitted June 21, 2017

San Francisco, California

Filed August 8, 2017

Before: Mary M. Schroeder, Johnnie B. Rawlinson,

and Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

2 GREENWAY V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court in an Arizona state

prisoner’s appeal arising from his habeas corpus petition

challenging his 1989 conviction and death sentence for the

killing of a mother and daughter.

After considering supplemental briefing regarding the

impact on this case of McKinney v. Ryan, 813 F.3d 798 (9th

Cir. 2015) (en banc), the panel held that neither the Arizona

Supreme Court nor the trial court applied an impermissible

causal-nexus test to exclude mitigating evidence.

COUNSEL

Therese M. Day (argued), Assistant Federal Public Defender;

Jon M. Sands, Federal Public Defender; Office of the Federal

Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Laura P. Chiasson (argued), Assistant Attorney General;

Jeffrey A. Zick and Lacey Stover Gard, Chief Counsel; Mark

Brnovich, Attorney General; Office of the Attorney General,

Tucson, Arizona; for Respondent-Appellee.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GREENWAY V. RYAN 3

OPINION

PER CURIAM:

We continue to consider issues raised in Richard

Greenway’s first habeas petition challenging his 1989

conviction and death sentence for the brutal execution-style

killing of a mother and daughter in 1988. In our first opinion,

we affirmed the denial of relief on many claims, but

remanded others. See generally Greenway v. Schriro,

653 F.3d 790 (9th Cir. 2011).

Included among the claims we denied was the contention

that the state trial court and the state supreme court, by failing

to consider all mitigating circumstances, had violated the

United States Supreme Court’s teachings in Lockett v. Ohio,

438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104

(1982). Greenway argued that the Arizona Supreme Court

limited consideration of mitigating factors to those causally

linked to the commission of the crime. Relying on our

court’s prior decision in Schad v. Ryan, 606 F.3d 1022 (9th

Cir. 2010), we rejected the claim on the ground that the

Arizona Supreme Court’s opinion contained no indication

that such a test had been applied. Greenway, 653 F.3d at

807–08 (citing State v. Greenway, 170 Ariz. 155, 168–71

(1991) (in banc)).

While Greenway’s other claims remained under

consideration in the federal courts, our court, in an en banc

decision, overruled Schad and any presumption it may have

suggested that the Arizona Supreme Court had followed the

United States Supreme Court’s decisions in Lockett and

Eddings and had not applied a causal-nexus test. McKinney

v. Ryan, 813 F.3d 798, 818–19 (9th Cir. 2015) (en banc).

4 GREENWAY V. RYAN

Rather, McKinney held that no “clear indication” of the

application of the causal-nexus test was required because the

Arizona courts had “consistently,” during the period between

1989 and 2005, applied the wrong test. Id. at 815–26 (“The

‘clear indication’ rule . . . is an inappropriate and unnecessary

gloss on the deference already required under [28 U.S.C.]

§ 2254(d).”). In other words, if there is to be a presumption,

it is that the Arizona Supreme Court violated the dictates of

Lockett and Eddings during that period.

We stayed proceedings in this appeal pending

McKinney’s becoming final. When the Supreme Court

denied certiorari, Ryan v. McKinney, 137 S. Ct. 39 (2016), we

asked for supplemental briefing on McKinney’s impact on

this case.

The parties appear to be in fundamental agreement that

McKinney requires us to reexamine the state trial and

appellate courts’ decisions to determine whether or not all

mitigating factors were considered. The parties disagree, of

course, on what the state courts did in petitioner’s case, with

Greenway contending a causal-nexus test was used and the

state contending it was not.

First, however, we consider Greenway’s threshhold

contention that it is not for us to determine what the state

courts did, because our en banc court in McKinney has

already ruled they applied the wrong test. We said in

McKinney that the Arizona courts had “consistently” applied

the causal-nexus test. 813 F.3d at 803. We did not say,

however, that Arizona had always applied it. Notably, in

listing the cases in which the causal-nexus test was

erroneously applied by the state courts, the McKinney

majority opinion did not include Greenway’s case.

GREENWAY V. RYAN 5

McKinney, Id. at 815–16, 824–26. And in McKinney, our

holding resolved only the “precise question” whether the state

court had applied the causal-nexus test in that specific case.

Id. at 804. We therefore must examine the state court

decisions in Greenway’s case to determine whether they took

into account all mitigating factors.

Those decisions came in the context of a criminal

prosecution for a double murder, see Greenway, 653 F.3d at

793, and the underlying circumstances of the crime have

relevance to our understanding of how the state courts

handled mitigating circumstances. We summarize the facts

from our first opinion:

On March 28, 1988, Pima County Sheriffs

found a burned 1983 Porsche, which officials

determined belonged to Frank and Lili

Champagne. A deputy went to inform the

Champagnes at their home and discovered the

bodies of Lili Champagne and her daughter,

Mindy Peters. Lili had been shot once behind

the knee and once between the eyes. Mindy

had been shot twice, once in the jaw and once

behind the ear. . . . [D]etectives picked up

Greenway at his sister’s house, [and]

Greenway told detectives that he had met a

man named “Red” at a 7–Eleven convenience

store, and that Red had given both Greenway

and his co-defendant, Chris Lincoln, a ride in

a white Porsche. . . . Lincoln confessed to

stealing and burning the Porsche, and he

implicated Greenway. During further

questioning, Lincoln confessed to

participating in the killings and again

6 GREENWAY V. RYAN

implicated Greenway. Greenway and Lincoln

were then both arrested and charged with

several counts, including the murders of Lili

and Mindy. . . . Further investigation revealed

that Greenway had attempted to sell the

victims’ car stereo to Brian Mize, Greenway’s

co-worker. According to Mize’s trial

testimony, Greenway told Mize that

Greenway went to the victims’ house and

after taking “some stuff” from the house,

Greenway sent his co-defendant out and then

shot the victims.

Id. at 794 (internal citations omitted).

We also provide in the margin the full text of the relevant

Arizona Supreme Court discussion of aggravating and

mitigating circumstances, as well as the state trial court’s

evaluation.1

1

The relevant portion of the Arizona Supreme Court decision reads

as follows:

(a) Age

Defendant presented one statutory mitigating

factor, A.R.S. § 13-703(G)(5), age, and numerous

nonstatutory mitigating factors. The trial court

concluded that defendant’s age, 19 at the time of the

murders, was the only mitigating factor. We agree with

the trial court.

(b) Defendant’s low I.Q.

Defendant argues that because he has an I.Q. of 72,

he “is not only immature and learning disabled, but is

GREENWAY V. RYAN 7

genuinely mentally retarded.” He also argues that “the

effect of the retardation on . . . his ability to realize

what he was doing has to be considered as a mitigating

factor.” We do not agree.

Defendant’s own expert testified that defendant

was borderline functional, and not mentally retarded.

Moreover, the expert testified that a person with an I.Q.

of 72 is fully capable of functioning in society and that

defendant was capable of making judgments with

limited impairment. Defendant’s former work manager

testified that defendant was a responsible person, that

he had been picked for promotion because he had

shown an ability to supervise other people and that he

handled problems without any outbreak of irrational

behavior. As we stated in State v. Ceja, 126 Ariz. 35,

40, 612 P.2d 491, 496 (1980), “[t]his is not the slow,

dull, [retarded] individual with [a] significantly

impaired mental capacity which counsel [seeks] to

depict,” but rather, an individual who planned two

weeks in advance to rob the victims and carried out this

plan.

We cannot accept defendant’s argument that,

because he was inept at committing this crime and

lacked criminal sophistication, his sentence should be

reduced. We have never held that, as part of the

sentencing process, the court must look at the crime

itself to determine if it was carried out with criminal

sophistication. We agree with the trial court that, under

the facts of this case, defendant’s I.Q. of 72, which

places him in a borderline functioning category, was

neither significant enough to qualify as a mitigating

factor, nor sufficiently substantial to call for leniency.

Greenway, 170 Ariz. at 168–69.

8 GREENWAY V. RYAN

The Arizona Supreme Court’s opinion, on its face, as we

observed before, does not expressly exclude any mitigation

evidence or claim on the ground that it lacked causal

relationship to the commission of the crime. See Greenway,

170 Ariz. at 168–69. Greenway had argued his low I.Q.

should be considered, in addition to his young age. While the

Arizona Supreme Court ultimately agreed with the trial court

that Greenway’s age (nineteen) was the only mitigating

factor, it did consider the evidence presented with respect to

the low I.Q. The court took it into account as a possible

mitigator and appeared to weigh its importance. “We agree

with the trial court that . . . defendant’s I.Q. . . . was neither

The trial court ruled, in relevant part, as follows:

Now, after determining whether or not the State has

proven beyond a reasonable doubt certain aggravating

factors, the Court must then turn its direction to

mitigating factors, not only those mitigating factors that

are set forth in A.R.S. 13-1704(g), but any other

mitigating factors that have been presented to the Court.

Looking at A.R.S. 13-1704(g), the Court specifically

finds there is a mitigating factor, and that is the age of

the Defendant. At the time of the killings the

Defendant was nineteen years old, only one year into

adulthood. The Court has considered all other

mitigating factors, those presented at the aggravation-

mitigation hearing, and also those which have been

submitted to the Court in the sentencing memorandum

and any other matters of record. In looking at the

mitigating factor of the age of the Defendant, the Court

finds that the Defendant’s actions, [and] evidence of

brutality [] far outweigh[] his chronological, emotional

and mental age, and the Court finds that there are no

other mitigating factors sufficiently substantial to call

for leniency.

GREENWAY V. RYAN 9

[1] significant enough to qualify as a mitigating factor, nor

[2] sufficiently substantial to call for leniency.” Id. at 169.

The state supreme court not only took into account

Greenway’s argument, but all the evidence presented in the

trial court. The court set forth the evidence Greenway had

submitted, including that of his own expert and work

experience. Id. The court excluded nothing.

Moreover, the state court, in considering all the evidence

Greenway presented, even cited Lockett for the breadth of

circumstances that should be considered. The court said that

the trial court must consider, in addition to Arizona’s

statutory factors, “any aspect of the defendant’s character or

record and any circumstance of the offense relevant to

determining whether a sentence less severe than death is

appropriate.” Id. (citing Lockett, 438 U.S. at 586).

The state supreme court thus rejected, on the merits,

Greenway’s claim that his low I.Q. was a mitigating factor,

and it did so on the basis of the evidence in the record. See

id. at 169. The court did not reject any mitigating factor, as

a matter of law, on the theory that it was not related to the

commission of the crime.

When we look to the language used in all of the state

court opinions that McKinney did cite, we find very different

language from that which the state supreme court used in this

case. The McKinney court itself discussed the various

impermissible causal-nexus approaches. 813 F.3d at 813–17,

824–26. A number of Arizona Supreme Court cases

considered mitigating factors in terms of whether the

defendant’s condition caused him to lose control of his

behavior at the time of the crime. For example, in State v.

10 GREENWAY V. RYAN

Wallace, the Arizona Supreme Court stated that “[a] difficult

family background is a relevant mitigating circumstance if a

defendant can show that something in that background had an

effect or impact on his behavior that was beyond the

defendant’s control.” 160 Ariz. 424, 427 (1989) (in banc);

see McKinney, 813 F.3d at 813–14. The Arizona Supreme

Court echoed its focus on control in State v. Hoskins,

199 Ariz. 127, 151–52 (2000) (en banc); State v. Martinez,

196 Ariz. 451, 465 (2000) (en banc); State v. Towery,

186 Ariz. 168, 189 (1996) (in banc) (giving little to no

mitigating weight to a defendant’s family background where

the defendant “[did] not prove a loss of impulse control or

explain what caused him to kill”); State v. Jones, 185 Ariz.

471, 490–92, (1996) (in banc); State v. Bolton, 182 Ariz. 290,

314 (1995) (in banc); and State v. Ross, 180 Ariz. 598, 607

(1994) (in banc). See McKinney, 813 F.3d at 814–17, 824.

At other times, the Arizona Supreme Court focused on

whether the defendant’s mental condition was “linked to his

criminal behavior” or had “any effect on the crimes.” See

e.g., State v. Djerf, 191 Ariz. 583, 598 (1998) (en banc). In

the late 1990s and early 2000s, the Arizona Supreme Court

began explicitly considering whether mitigating factors were

causally linked or connected to the criminal conduct. See

State v. Canez, 202 Ariz. 133, 164 (2002) (en banc) (“A

defendant’s difficult childhood is mitigating only where

causally connected to his offense. . . . [A] tenuous,

speculative nexus is insufficient to constitute significant

mitigation.”); State v. Hoskins, 199 Ariz. at 151. (“For our

purposes on review, it is essential not only that a personality

disorder be shown to exist but that it be causally linked to the

crime at the time the crime is committed.”); State v. Sharp,

193 Ariz. 414, 425 (1999) (en banc) (“Because Appellant

failed to establish a causal connection between his

GREENWAY V. RYAN 11

unfortunate childhood or his abuse of drugs and alcohol and

his criminal actions, sympathy for those events does not

justify allowing him to receive diminished punishment for

this brutal murder.”); State v. Greene, 192 Ariz. 431, 442

(1998) (en banc) (“While it is true that Greene killed to get

money to buy drugs, this is not the sort of causal connection

that would support a claim of mitigation.”). State v.

Rienhardt, 190 Ariz. 579, 592 (1997) (en banc) (“Since [the

defendant] declined to present any evidence of a causal

connection at his aggravation-mitigation hearing, we reject

this mitigating factor.”); Jones, 185 Ariz. at 490–92 (rejecting

mitigating factors for lack of “causal connection”). And in

McKinney’s case, unlike here, the Arizona Supreme Court

cited directly to the causal-nexus test, as articulated in Ross.

See McKinney, 813 F.3d at 803 (citing State v. McKinney,

185 Ariz. 567, 587 (1996) (in banc) (citing Ross, 180 Ariz. at

607)). None of the formulations we enumerated in McKinney

are present in the state court’s Greenway decision.

The trial court in Greenway’s case likewise considered all

mitigating factors and did not exclude anything on the ground

it lacked a causal nexus to the crime. The trial court

expressly noted that it was required to “turn its direction” not

only to statutory mitigating factors but also “any other

mitigating factors that have been presented to the court.”

Applying this rule, the trial court “considered all other

mitigating factors,” and found only one, Greenway’s age,

deserving of any weight. The court then found that the

aggravating factors—Greenway’s actions and the evidence of

brutality—“far outweigh[ed]” Greenway’s “chronological,

emotional, and mental age” and that no other factors were

“sufficiently substantial to call for leniency.” The court thus

considered and weighed all the factors.

12 GREENWAY V. RYAN

The best that petitioner can do to show the state supreme

court committed constitutional error by applying a causal-

nexus test is to point to the way the court distinguished the

mitigating factors in Greenway’s case from those in State v.

Jimenez, 165 Ariz. 444, 455–60 (1990) (in banc). But neither

Jimenez, nor by extension Greenway, suggest a defendant’s

I.Q. should be excluded from consideration absent a showing

of causal nexus. The Arizona Supreme Court decided

Jimenez the year before Greenway’s case, and the same court

in Jimenez found the mitigating factors outweighed the

aggravating factors. See id. at 460. In Greenway’s case, the

state court noted that Greenway had an I.Q. and age

comparable to Jimenez, but that Jimenez, unlike Greenway,

had offered testimony to establish that he suffered from

hallucinations that compelled him to commit murder.

Greenway, 170 Ariz. at 169 (citing Jimenez, 165 Ariz. at

456–60). The Greenway court said:

Although the defendants in both Jimenez and

the instant case registered comparable I.Q.s

and ages, the defendant in Jimenez offered

substantial testimony to establish that he also

suffered from hallucinations and delusions

which compelled him to commit the murder.

The defendant in the present case limited

expert testimony about his mental condition to

his I.Q. The defendant offered no testimony

to establish he suffered from hallucinations or

delusions at the time he committed the

murder.

Id. (internal citation omitted).

GREENWAY V. RYAN 13

Greenway argues this passage means that there was a

causal nexus in Jimenez but not in Greenway’s case, thus

indicating application of the causal-nexus test to exclude

mitigating evidence in his case. Yet when we look to the

underlying Arizona Supreme Court opinion in Jimenez, we

see the discussion related to the defendant’s mental state at

the time of the crime was not about the impermissible causal-

nexus test, but about the applicability of a statutory factor

relating to mental illness.

Arizona statutory law at that time required courts to find

a mitigating factor when “[t]he defendant’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly

impaired, but not so impaired as to constitute a defense to

prosecution.” Ariz. Rev. Stat. §13-703(G)(1) (1989) (current

version at Ariz. Rev. Stat. §13-751(G)(1)). Thus the court in

Jimenez, echoing the statutory language, found the

defendant’s mental illness to be a mitigating factor:

“Although [the defendant’s] impairment was not great

enough to constitute a defense to the crime, we find that

defendant’s mental incapacity was not only a substantial

mitigating factor in this case, but a major contributing cause

of his conduct that was sufficiently substantial to outweigh

the aggravating factors present in this case.” See 165 Ariz. at

459 (internal quotation marks omitted). Accordingly, in

Jimenez, the court concluded: “Given the strong evidence in

this case of the severity of defendant’s mental illness,

combined with the substantial and relevant factor of

defendant’s young age and borderline intelligence level

affecting his intellectual maturity, we believe that leniency is

required.” Id. at 460.

14 GREENWAY V. RYAN

Jimenez was not only young and of borderline

intelligence, but also suffered from a mental impairment that

satisfied Arizona’s statutory mitigation requirements.

Greenway had no such impairment. Thus Greenway’s case

differed from Jimenez, not because Greenway failed to show

a causal nexus between his low I.Q. and the murders, but

because Greenway lacked the statutory factor of a mental

impairment. In neither Greenway nor Jimenez did the

Arizona Supreme Court apply a causal-nexus test to exclude

mitigating factors.

Finally, even if we were to determine that the state court

did apply the causal-nexus test in violation of Eddings, there

could have been no prejudice because the aggravating factors

overwhelmingly outweighed all the evidence that Greenway

asserted as mitigating, including his age and low I.Q. “The

harmless-error standard on habeas review provides that ‘relief

must be granted’ if the error ‘had substantial and injurious

effect or influence in determining the jury’s verdict.’” See

McKinney, 813 F.3d at 822 (quoting Brecht v. Abrahamson,

507 U.S. 619, 623 (1993)). Here, there were significant

aggravating factors that the state court took into account:

Greenway (1) committed multiple first degree murders;

(2) for pecuniary gain; and (3) in an especially cruel, heinous,

and depraved manner. Greenway, 170 Ariz. at 163–68. The

Arizona Supreme Court noted that the multiple first degree

murders constituted “egregious circumstances” and were

“especially cruel.” Id. at 165, 168 (quoting Evans v. State,

304 Md. 487, 538 (1985)). Even if the Arizona Supreme

Court had excluded Greenway’s low I.Q. for lack of a causal

connection to the crime, its factual determinations

demonstrate that Greenway’s I.Q. was entitled to little

mitigating weight. The court noted expert testimony that

Greenway was “fully capable of functioning in society” and

GREENWAY V. RYAN 15

“capable of making judgments with limited impairment.” Id.

at 169. Given the significant aggravating factors, we can say

“with fair assurance” that Greenway’s total evidence in

nonstatutory and statutory mitigation, including his age and

evidence of low I.Q., was not sufficient to overcome the

aggravating factors and call for leniency. See McKinney,

813 F.3d at 822 (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)).

CONCLUSION

Neither the Arizona Supreme Court nor the trial court

applied an impermissible causal-nexus test to exclude

mitigating evidence. Both considered all of Greenway’s

evidence offered in mitigation and found it insufficient to

outweigh the serious aggravating factors. Accordingly, there

was no violation of clearly established federal law.

AFFIRMED.