Leroy McGill v. David Shinn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEROY MCGILL, No. 19-99002

Petitioner-Appellant,

D.C. No.

v. 2:12-cv-01149-

JJT

DAVID SHINN, Director, Arizona

Department of Corrections; WALTER

HENSLEY, Warden, Arizona OPINION

Department of Corrections - Eyman

Complex,

Respondents-Appellees.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted May 20, 2021

Pasadena, California

Filed October 21, 2021

Before: Jay S. Bybee, Milan D. Smith, Jr., and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Bybee;

Concurrence by Judge Collins;

Partial Concurrence and Partial Dissent by

Judge Milan D. Smith, Jr.

2 MCGILL V. SHINN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s judgment denying

Leroy McGill’s 28 U.S.C. § 2254 habeas petition challenging

his Arizona conviction and death sentence for the murder of

his former housemate, Charles Perez.

The district court granted a certificate of appealability

(COA) as to one claim—ineffective assistance of counsel

arising out of trial counsel’s investigation and presentation of

mitigation evidence at the penalty phase. Of McGill’s

remaining uncertified claims, one—a claim that counsel was

deficient by failing to present mitigating circumstances of

McGill’s prior armed robbery convictions—also arose from

counsel’s performance at the penalty phase. Because the

district court granted a COA with respect to other aspects of

counsel’s performance at the penalty phase, the panel applied

Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), and treated

McGill’s claim with respect to the circumstances of the

armed robbery as if the district court had granted a COA.

McGill argued that this court owes no duty of deference

under the Antiterrorism and Effective Death Penalty Act

(AEDPA) to the post-conviction review (PCR) court’s

decision because, in denying his claim of ineffective

assistance of counsel at the penalty phase, the PCR court

misapplied Strickland v. Washington, 466 U.S. 668 (1984),

under 28 U.S.C. § 2254(d)(1) and unreasonably determined

*

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

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

MCGILL V. SHINN 3

the facts under 28 U.S.C. § 2254(d)(2). Regarding

§ 2254(d)(1), the panel held that the PCR court correctly

identified and reasonably applied clearly established law in

assessing professional norms and evaluating new mitigation

evidence, did not apply an unconstitutional causal-nexus test,

and did not need to consider the cumulative effect of

nonexistent errors. Regarding § 2254(d)(2), the panel held

that the PCR court did not rely on unreasonable

determinations of fact in finding that counsel’s decision not

to call an addictionologist was tactical, that McGill failed to

substantiate his claims of childhood sexual assault, and that

a retained neuropsychologist was a qualified expert witness

upon whom counsel was entitled to rely.

Because the PCR court correctly identified and

reasonably applied clearly established federal law, and its

conclusions did not rely on unreasonable determinations of

facts, the panel reviewed the merits of McGill’s ineffective

assistance of counsel claim under AEDPA’s deferential

standard of review. Applying that standard, the panel

concluded that McGill did not show that counsel performed

deficiently under Strickland at the penalty phase. The panel

wrote that the PCR court reasonably concluded that counsel’s

preparation, investigation, and presentation of mitigation

evidence was thorough and reasoned; that as a whole, the

defense team uncovered a “not insignificant” amount of

mitigation evidence that spanned decades of McGill’s life and

presented a comprehensive picture to the jury; that there is no

evidence that counsel failed to uncover any reasonably

available mitigation records; and that the PCR court’s

findings regarding the adequacy of counsel’s presentation of

the circumstances surrounding McGill’s prior armed robbery

convictions are not unreasonable. Because counsel’s

performance was not objectively deficient in light of the

4 MCGILL V. SHINN

prevailing professional norms, the panel did not reach

McGill’s claims of prejudice.

The panel treated McGill’s briefing of two uncertified

issues as an application for a COA. The panel denied a COA

as to McGill’s uncertified claim that counsel was ineffective

at the guilt phase by failing to retain an expert arson

investigator. The panel granted a COA as to McGill’s claim

that his death sentence violated the Ex Post Facto Clause in

light of Ring v. Arizona, 536 U.S. 584 (2002), in which the

Supreme Court invalidated Ariz. Rev. Stat. § 13-703(C)

(2001), because it required the sentencing judge—not the

jury—“to find an aggravating circumstance necessary for

imposition of the death penalty.” Perez’s murder fell within

the brief period between Ring and Arizona’s amendment of

§ 13-703. Denying relief on the merits, the panel concluded

that the Arizona Supreme Court reasonably applied clearly

established federal law when it determined that Arizona had

only made a procedural change to its death penalty process,

and that change did not violate the Ex Post Facto Clause.

Concurring, Judge Collins wrote separately to note that

Browning’s rule is plainly incorrect, defeats the screening

purpose of 28 U.S.C. § 2253(c)(3), creates unnecessary work

and delay, and should be revisited in the next en banc case in

which that rule has played a role.

Judge M. Smith concurred in part and dissented in part.

He concurred in the decision resolving McGill’s challenges

to the guilt phase of his trial, but he would grant relief with

respect to the penalty phase because he believes sentencing

McGill to death is unconstitutional pursuant to the Ex Post

Facto Clause. He wrote that McGill could not have been

sentenced to death for murder when he committed his crimes

MCGILL V. SHINN 5

because at that time there was no statute implementing the

death penalty in Arizona, and yet because the Arizona

legislature passed a law thirty-eight days later that purported

to allow his execution, McGill now sits on death row.

COUNSEL

Jennifer Y. Garcia (argued) and Sara Chimene-Weiss,

Assistant Federal Public Defenders; Jon M. Sands, Federal

Public Defender; Office of the Federal Public Defender,

Phoenix, Arizona; for Petitioner-Appellant.

Erin D. Bennett (argued), Assistant Attorney General; Lacey

Stover Gard, Deputy Solicitor General/Chief of Capital

Litigation; Mark Brnovich, Attorney General; Office of the

Attorney General, Phoenix, Arizona; for Respondents-

Appellees.

6 MCGILL V. SHINN

OPINION

BYBEE, Circuit Judge:

Petitioner Leroy McGill was sentenced to death in 2004

for the murder of his former housemate, Charles Perez. The

Arizona Supreme Court affirmed McGill’s conviction and

sentence on direct review, and the state trial court denied

post-conviction relief. McGill now appeals the district

court’s denial of his petition for habeas relief under 28 U.S.C.

§ 2254. The district court granted a certificate of

appealability as to trial counsel’s performance at the penalty

phase of trial but denied a certificate as to McGill’s

remaining claims.

We evaluate McGill’s claims under the Antiterrorism and

Effective Death Penalty Act. Applying that deferential

standard to his certified claim, we conclude that in denying

McGill relief, the state court reasonably applied clearly

established federal law and relied upon reasonable factual

determinations. We further find that McGill has failed to

make a substantial showing that he was denied a

constitutional right to effective assistance of counsel at the

guilt phase and therefore deny a certificate of appealability as

to that claim. We grant a certificate of appealability on

McGill’s ex post facto claim but deny relief on the merits.

Accordingly, we affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

In July 2002, McGill and his girlfriend, Jonna (Angel)

Hardesty, were nearly homeless and temporarily living with

MCGILL V. SHINN 7

a friend in the Sunnyslope area of Phoenix. State v. McGill,

140 P.3d 930, 933 (Ariz. 2006) (en banc) (McGill I). The

couple had recently been ousted from a nearby duplex

apartment owned by Jack Yates after Charles Perez, another

occupant of the duplex, accused McGill and Hardesty of

stealing his shotgun. Id. In the early morning hours of July

13, 2002, McGill walked to the Yates duplex to teach Perez

and Yates “a lesson, that nobody gets away with talking about

[McGill and Hardesty].” Id. (alterations in original). McGill

was confronted by Eddie Keith who lived in the duplex with

his wife and two daughters. McGill warned Keith to get his

family out of the duplex, and Keith obediently fled. Id.

at 933–34.

When McGill entered the duplex, he found Perez sitting

on a couch in the living room with his girlfriend, Nova Banta.

Id. at 934. McGill admonished the couple not to “talk behind

other people’s backs,” and before either could respond, he

doused the pair with gasoline and threw a lit match at them.

Id. Flames engulfed Perez and Banta, who ran screaming

from the apartment. Id. First responders transported Perez

and Banta to the hospital with third-degree burns covering

more than seventy-five percent of their bodies. Id. Perez

died the following day. Id. Banta survived, identified McGill

to her nurse as the man who set her on fire, and later

identified McGill at trial. Id. Fortunately, the other residents

of the duplex escaped the blaze without injury.

In March 2003, a Maricopa County grand jury indicted

McGill on charges of first-degree murder for Perez’s death,

attempted first-degree murder for his attack on Banta, and

several counts of arson and endangerment. Id. Shortly

thereafter, the state gave notice of its intent to seek the death

penalty under then-Arizona Revised Statute § 13-703.01(B)

8 MCGILL V. SHINN

(2003).1 The state raised three statutory aggravating factors

under Ariz. Rev. Stat. § 13-703(F) (2003): McGill’s

convictions for armed robbery, a “serious offense” under the

statute; McGill’s knowing creation of a “grave risk of death”

to others during the crime; and McGill’s commission of the

crime in an especially heinous, cruel, or depraved manner.

See id. § 13-703(F)(2), (3), (6).

Attorney Maria Schaffer of the Office of the Legal

Advocate was appointed to represent McGill, and Elizabeth

Todd was appointed as second chair. The defense team also

retained Mitigation Specialist Marianne Brewer and private

investigator Mark Mullavey. Counsel submitted several

expert-witness requests to her supervisor at the Office of the

Legal Advocate, Susan Sherwin, including requests for a

neuropsychologist, addictionologist, and a domestic violence

specialist. Director Sherwin approved the requests for a

neuropsychologist and addictionologist but denied Schaffer’s

request for a domestic violence expert. Ultimately, counsel

retained neuropsychologist Dr. Richard Lanyon and

addictionologist Dr. Mace Beckson. Schaffer had wanted to

retain Dr. Lesley Hoyt-Croft as McGill’s addictionologist, but

Sherwin refused to authorize it because Hoyt-Croft was a

psychologist, not a medical doctor. Only Dr. Lanyon would

testify at trial, however, because Dr. Beckson felt he could

not offer helpful testimony unless McGill accepted

responsibility for his actions, which McGill refused to do.

1

Arizona has since amended and renumbered this portion of its death

penalty statutes. Except where specified, we refer to the statutes as they

were codified at the time of the crime.

MCGILL V. SHINN 9

B. The Trial

McGill was tried in October 2004.2 At the guilt phase, the

state presented evidence that witnesses saw McGill at the

Yates duplex before the fire; McGill warned Keith to flee the

duplex; and McGill mixed styrofoam pieces into the gasoline

before dousing Perez and Banta, believing it would create a

pasty substance that would be more difficult to extinguish.

See McGill I, 140 P.3d at 934. After brief deliberations, the

jury found McGill guilty on each charge in the indictment.

At the aggravation phase, the jury determined beyond a

reasonable doubt that sufficient aggravating factors existed

under Ariz. Rev. Stat. § 13-703(F) to consider imposition of

the death penalty.

Counsel presented mitigation evidence over the course of

a four-day penalty-phase trial. The mitigation presentation

focused on McGill’s life history, including his dysfunctional

childhood and removal from his home; early drug use and

juvenile delinquency; drug and alcohol addiction later in life,

including chronic methamphetamine use; a purported brain

injury suffered in a car accident in the 1980s; and the

dysfunctional and abusive relationship between McGill and

his girlfriend, Jonna Hardesty. Mitigation Specialist Brewer

and several of McGill’s family members explained the

2

Capital trials in Arizona are divided into three proceedings: the guilt

phase, aggravation phase, and penalty phase. See Ariz. Rev. Stat. § 13-

703(A)–(C). At the guilt phase, the jury determines the defendant’s guilt

or innocence. At the aggravation phase, the jury determines whether

sufficient aggravating factors exist to warrant consideration of the death

penalty. See id. § 13-703(B). If the state proves aggravating factors

beyond a reasonable doubt, the proceeding moves to the penalty phase

where the jury determines whether the death penalty is appropriate in light

of any mitigating factors. Id. § 13-703(C).

10 MCGILL V. SHINN

dysfunction during McGill’s childhood. The story was a

difficult one. McGill’s father was an alcoholic and was

physically violent with McGill’s mother, Ann. They divorced

about the time McGill was born, and Ann took the five

children from California to Arizona. McGill’s father went to

Arizona and took the children from Ann and returned to

California. Ann regained custody and returned to Arizona,

where she worked multiple jobs to support herself and the

children. After another marriage, divorce, and a sixth child,

Ann took her children to Texas. While she worked, McGill

and his siblings were left to fend for themselves.

The children were removed from the home on several

occasions because Ann was unable to care for them. In 1970,

when McGill was eight years old, he and his brothers Cordell

and Lonnie were placed briefly in foster care. Shortly

thereafter, McGill and Cordell were transferred to Buckner’s

Boys Ranch, a harsh and structured environment, in San

Antonio, Texas. Two years later, McGill was released to his

mother. But by 1976, Ann was again unable to care for

McGill and applied for his admission to Boysville, another

all-boys reform school in San Antonio.

Witnesses testified that McGill’s fractured home life

affected him well into adulthood. McGill began using drugs

and alcohol at a young age. By adulthood, McGill was a

chronic, daily methamphetamine user. Methamphetamine

affected McGill’s behavior, sleep patterns, and decision-

making ability. Counsel connected McGill’s drug use to his

criminal history, especially two armed robberies. The

defense attempted to mitigate the effects of those convictions

by framing them through the lens of substance abuse. To that

end, the defense elicited testimony that McGill was

intoxicated and nearly homeless at the time, and that he

MCGILL V. SHINN 11

accepted responsibility for the robberies by pleading guilty

and serving his sentence. After McGill completed his

sentence, he reconnected with family and held a job.

Unfortunately, any progress McGill made was undercut by

his relationship with Hardesty, who was described by his

family as “one of the most evil people” they had ever met.

Hardesty also enabled McGill’s chronic methamphetamine

use, which further disrupted his life.

McGill’s expert neuropsychologist, Dr. Richard Lanyon,

provided useful context for McGill’s cognitive function,

history of substance abuse, and relationship with Hardesty.

Dr. Lanyon administered a battery of cognitive tests, which

revealed slight impairments to McGill’s language and

symbolic skills development but did not uncover any other

noteworthy cognitive deficiencies. Dr. Lanyon also reviewed

“quite a lot of records” from McGill’s childhood and found

that McGill’s neglectful and emotionally distant mother made

him particularly susceptible to manipulation from

women—especially Hardesty. When Hardesty “said jump,

[McGill] jumped.” According to Dr. Lanyon, McGill’s

unhealthy dependence on Hardesty was further exacerbated

by his chronic methamphetamine use, which likely impaired

McGill’s judgment leading up to the crime.

The jury was unpersuaded by McGill’s mitigation

presentation and ultimately returned a sentence of death. The

Arizona Supreme Court affirmed the conviction and sentence

in a published opinion, with one justice concurring in part and

dissenting with respect to a question under the Confrontation

Clause. McGill I, 140 P.3d 930; id. at 946 (Hurwitz, J.,

concurring in part and dissenting in part). McGill sought

certiorari review of the Confrontation Clause issue, which the

12 MCGILL V. SHINN

United States Supreme Court denied. McGill v. Arizona,

549 U.S. 1324 (2007) (mem.).

C. Post-Conviction Relief

In June 2010, McGill sought post-conviction relief (PCR)

in the Maricopa County Superior Court. Raising multiple

ineffective assistance claims, McGill argued that his counsel

failed, inter alia, to: retain necessary expert witnesses and

prepare Dr. Lanyon for his mitigation testimony; subpoena

material witnesses and effectively cross-examine others;

obtain necessary mitigation evidence; and discover and

present evidence that McGill was sexually abused at

Boysville. In preparation for the PCR proceedings, McGill

underwent a PET scan, which produced digital imaging of his

brain function. PCR counsel also retained additional expert

witnesses: psychiatrist and brain imagine expert Dr. Joseph

Wu, who reviewed McGill’s PET scan; psychiatrist

Dr. Richard Rosengard; and pharmacologist Dr. Edward

French.

The PCR court summarily denied all but one of McGill’s

claims by written order in October 2010, but ordered an

evidentiary hearing on McGill’s challenge to trial counsel’s

failure to retain experts to explore the relationship between

his purported brain injury and his crime. The PCR court held

the evidentiary hearing the following October. It heard

testimony from four witnesses: lead trial counsel Maria

Schaffer, Dr. Wu, Dr. Rosengard, and Dr. Lanyon.3

3

Although Dr. French provided a report in support of McGill’s PCR

petition, he did not testify at the evidentiary hearing.

MCGILL V. SHINN 13

Schaffer testified that she had difficulty retaining the

experts in addictionology and domestic violence that she felt

were necessary to defend McGill and thought that

“Dr. Lanyon did a horrible job of preparing for his

testimony.” She felt that Dr. Lanyon’s lack of preparation

coupled with her earlier difficulty retaining necessary expert

witnesses prevented her from adequately presenting

mitigating evidence of McGill’s drug addiction, brain injury,

and domestic violence at the hands of Hardesty. But Schaffer

also admitted that she had deliberately withheld from

Dr. Lanyon a pre-sentence report that the state used to

discredit his testimony on cross-examination.

Dr. Wu, who was the director of the Brain Imagery Center

at the University of California, Irvine, testified that he had not

personally examined McGill, but that he had reviewed

McGill’s PET scan and Dr. Lanyon’s report. He explained

that a PET scan acts as a “thermometer” for gauging

cognitive conditions but added that diagnosing cognitive

disorders requires separate neuropsychological testing.

Dr. Wu further testified that he would have ordered additional

testing to assess the actual effect of McGill’s brain injury on

his behavior had he reviewed McGill’s PET scan prior to

trial. Nevertheless, he conceded that Dr. Lanyon had

administered a “comprehensive battery” of tests and that the

results of those tests were compatible with the abnormalities

revealed in McGill’s PET scan.

Dr. Rosengard’s testimony provided a psychiatric

perspective to McGill’s cognitive functioning. It also

detailed the effects of McGill’s relationship with Hardesty,

and, for the first time, disclosed that McGill was a victim of

childhood sexual assault. He opined that McGill’s turbulent

upbringing made him especially susceptible to Hardesty’s

14 MCGILL V. SHINN

influence and that McGill suffered from Stockholm

Syndrome as a result of her manipulations. Dr. Rosengard

was not convinced, however, that McGill suffered from

cognitive deficiencies as a result of a traumatic brain injury.

He testified that his psychiatric evaluation independently

revealed that McGill did not suffer any cognitive deficits—

the same conclusion that Dr. Lanyon reached.

Dr. Lanyon stood by his trial testimony, stating that he

had a “[v]ery good” working relationship with counsel and

that neither Dr. Wu’s nor Dr. Rosengard’s findings would

have significantly altered his testimony. He added that,

although Dr. Wu’s and Dr. Rosengard’s reports indirectly

supported his conclusions, neither doctor’s report

corroborated his findings or provided a “smoking gun”

regarding McGill’s brain damage. In hindsight, Dr. Lanyon

conceded that McGill’s PET scan would have been helpful in

one way; it would have supported his finding that McGill’s

language functioning was deficient. Aside from that minor

area, Dr. Lanyon was unpersuaded that Drs. Wu and

Rosengard presented any evidence that would have altered his

original analysis.

Following the evidentiary hearing, the PCR court denied

McGill’s final ineffective assistance claim in a written order.

Applying Strickland, the PCR court held that counsel’s

performance at trial did not fall below an objective standard

of reasonableness. The PCR court noted that defense counsel

presented “a substantial amount of mitigation” evidence that

covered McGill’s “dysfunctional family background, his

relationship with Ms. Hardesty, and his substance abuse.”

The PCR court also found that McGill’s challenge to

Dr. Lanyon’s performance was flawed because Dr. Lanyon’s

“thorough and complete” evaluation of McGill simply did not

MCGILL V. SHINN 15

reveal evidence of “brain related impairment” that counsel

hoped it would. Thus, the state court concluded that counsel

was not deficient for failing to better present evidence of

cognitive deficiency to the jury.

The PCR court also held that even if counsel had been

deficient, none of her alleged errors prejudiced McGill.

Especially persuasive to the PCR court was Dr. Lanyon’s

testimony that neither Dr. Wu nor Dr. Rosengard aided his

trial testimony in any significant way. Neither expert

demonstrated that McGill suffered from any cognitive

deficiencies apart from minor language and speech functions.

The PCR court also noted that Dr. Wu’s and Dr. Rosengard’s

testimony disagreed on the central issue of whether McGill’s

prior drug use influenced his PET scan results. At best, their

testimony would have been cumulative to Dr. Lanyon’s

testimony; at worst, the inherent contradictions would have

weakened the mitigation presentation. As a result, even if

counsel erred in failing to secure their expert opinions, it was

not reasonably probable that their testimony would have

changed McGill’s sentence.

In 2013, McGill sought habeas relief under 28 U.S.C.

§ 2254. The district court denied his petition in January

2019, but granted McGill a certificate of appealability on his

ineffective assistance of counsel claim arising out of trial

counsel’s investigation and presentation of mitigation

evidence at the penalty phase of his trial. McGill timely

appealed.

16 MCGILL V. SHINN

II. SCOPE AND STANDARD OF REVIEW

A. Scope of Review

McGill presents several claims for review, only one of

which is certified for appeal. We may not review McGill’s

uncertified claims unless we grant a certificate of

appealability (COA). 28 U.S.C. § 2253(c)(1)(A) (“Unless a

. . . judge issues a certificate of appealability, an appeal may

not be taken to the court of appeals from . . . the final order in

a habeas corpus proceeding.”). We will treat McGill’s

briefing of his uncertified issues as an application for a COA.

Fed. R. App. P. 22(b)(1)–(2); Ninth Cir. R. 22-1(e); Slack v.

McDaniel, 529 U.S. 473, 483 (2000). We may issue a COA

“only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

McGill’s lone certified claim arises out of counsel’s

performance at the penalty phase of his trial. We take up this

certified claim in Part III. Of McGill’s remaining uncertified

claims, one—a claim that counsel was deficient by failing to

present the mitigating circumstances of McGill’s armed

robbery convictions—also arises from counsel’s performance

at the penalty phase. Although the district court considered

this a separate grounds for a COA, and denied it, we have

explained that the right to counsel secured by the Sixth and

Fourteenth Amendments “is a guarantee of effective counsel

in toto.” Browning v. Baker, 875 F.3d 444, 471 (9th Cir.

2017). We must consider “counsel’s conduct as a whole to

determine whether it was constitutionally adequate.” Id. In

Browning we observed that separating counsel’s alleged

errors in a proceeding into different questions and considering

whether to issue a COA as to each error “distort[s]” the

ineffective assistance of counsel inquiry. The proper

MCGILL V. SHINN 17

procedure is for a district court to consider whether to grant

a COA “at a higher level of generality” so that we may

consider counsel’s performance in the context of the entire

proceeding. Id. See White v. Ryan, 895 F.3d 641, 645 n.1

(9th Cir. 2018) (treating counsel’s failure to investigate and

present mitigating evidence as “a single claim regarding his

right to the effective assistance of counsel at the penalty

phase of resentencing”). Because the district court granted a

COA with respect to other aspects of counsel’s performance

at the penalty phase, we will treat McGill’s claim with respect

to the circumstances of his armed robbery as if the district

court had granted a COA and consider it in Part III.

McGill also seeks a COA for two other claims. First,

McGill asks that we issue a COA to review counsel’s

deficient performance at the guilt phase at his trial. McGill

argues that trial counsel failed to retain an arson expert to

rebut evidence that McGill mixed styrofoam into the gasoline

before dousing Perez and Banta. Because this alleged

omission occurred during the separate and discrete guilt

phase, we will consider it apart from McGill’s penalty phase

claim. For reasons we will explain in Part IV.A, we deny a

COA as to his guilt phase claim. Second, McGill challenges

his death sentence under the Ex Post Facto Clause in light of

Ring v. Arizona, 536 U.S. 584 (2002). Because we believe

that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right,” we will grant a COA with respect to McGill’s claim

under the Ex Post Facto Clause. Slack, 529 U.S. at 484. We

consider this claim on the merits in Part IV.B.

18 MCGILL V. SHINN

B. Standard of Review

Although we review the district court’s denial of a § 2254

petition de novo, Ramirez v. Ryan, 937 F.3d 1230, 1240 (9th

Cir. 2019), our review of McGill’s two certified claims is

subject to the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), which “guard[s] against extreme

malfunctions in the state criminal justice systems, and [is] not

. . . a means of error correction.” Greene v. Fisher, 565 U.S.

34, 38 (2011) (citation and internal quotation marks omitted).

AEDPA provides that a federal court

shall not . . . grant[] [a writ of habeas corpus]

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that 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)(1)–(2); see Harrington v. Richter,

562 U.S. 86, 97–98 (2011). McGill challenges the PCR

court’s decision under both of § 2254(d)’s prongs.

MCGILL V. SHINN 19

We may only grant relief under § 2254(d)(1)

if the state court arrives at a conclusion

opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the] Court has

on a set of materially indistinguishable facts.

Under the “unreasonable application” clause,

a federal habeas court may grant the writ if

the state court identifies the correct governing

legal principle . . . but unreasonably applies

that principle to the facts of the prisoner’s

case.

Williams v. Taylor, 529 U.S. 362, 413 (2000). “[C]learly

established Federal law” is limited to “the holdings . . . of

[Supreme] Court[] decisions” that existed when the state

court issued its decision. Id. at 412. The “pivotal question”

is whether the court’s application of law was unreasonable.

Richter, 562 U.S. at 101. A state court’s application of

federal law that is merely incorrect will not warrant relief,

Williams, 529 U.S. at 410–11; see White v. Woodall, 572 U.S.

415, 427 (2014) (“[R]elief is available under § 2254(d)(1)’s

unreasonable-application clause if, and only if, it is so

obvious that a clearly established rule applies . . . that there

could be no ‘fairminded disagreement’ on the question.”)

(citation omitted). Our review of state court factual

determinations under § 2254(d)(2) is similarly deferential.

We may not disturb the PCR court’s factual findings unless

they are “objectively unreasonable,” Miller-El v. Cockrell,

537 U.S. 322, 340 (2003) (Miller-El I), which is “a

substantially higher threshold” than merely “believ[ing] the

state court’s determination was incorrect.” Schriro v.

20 MCGILL V. SHINN

Landrigan, 550 U.S. 465, 473 (2007) (citing Williams,

529 U.S. at 410).

III. CERTIFIED CLAIM

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend.

VI. The Supreme Court has said that “the right to counsel is

the right to the effective assistance of counsel,” McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970), which means that

“the accused is entitled to ‘a reasonably competent attorney,’

whose advice is ‘within the range of competence demanded

of attorneys in criminal cases,’” United States v. Cronic,

466 U.S. 648, 655 (1984) (quoting McMann, 397 U.S.

at 770–71). In evaluating a claim of ineffective assistance of

counsel, Strickland v. Washington, 466 U.S. 668 (1984),

supplies the “clearly established Federal law” for purposes of

§ 2254(d)(1). Strickland sets out a two-part test. First, “the

defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id.

at 687. Second, “the defendant must show that the deficient

performance prejudiced the defense. This requires showing

that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id.

Strickland requires that a defendant prove that his “counsel’s

conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result.” Id. at 686. In reviewing counsel’s

performance, our scrutiny “must be highly deferential,” lest

“a court, examining counsel’s defense after it has proved

unsuccessful, . . . conclude that a particular act or omission of

MCGILL V. SHINN 21

counsel was unreasonable.” Id. at 689. A “fair assessment,”

accordingly, “requires that every effort be made to eliminate

the distorting effects of hindsight.” Id.

McGill argues that, in denying his claim of ineffective

assistance of counsel at the penalty phase, the PCR court

misapplied Strickland under § 2254(d)(1) and unreasonably

determined the facts under § 2254(d)(2). If so, we would no

longer owe deference to the PCR court’s determinations, and

we would then resolve his ineffective assistance of counsel

claims “without the deference [to the PCR court] AEDPA

otherwise requires.” Panetti v. Quarterman, 551 U.S. 930,

953 (2007) (collecting cases); see also Johnson v. Williams,

568 U.S. 289, 303 (2013) (“AEDPA permits de novo review

in those rare cases when a state court decides a federal claim

in a way that is ‘contrary to’ clearly established Supreme

Court precedent.”); Early v. Packer, 537 U.S. 3, 8 (2002) (per

curiam) (holding that § 2254 does not apply where “the

reasoning [or] the result” of the PCR court’s decision

contradicts Supreme Court precedent (citation omitted)).

Whether McGill has satisfied § 2254(d) is thus critical to his

claims.

We will begin with McGill’s claim that we owe no duty

of deference under § 2254(d) to the PCR court’s decision.

Because we conclude that we do, we then review the merits

of McGill’s ineffective assistance of counsel claim through

the lens of § 2254(d).

22 MCGILL V. SHINN

A. Whether We Owe a Duty of Deference to the PCR Court’s

Decision

1. Application of clearly established federal law under

§ 2254(d)(1)

We will first examine the PCR court’s application of

Strickland. Section 2254(d)(1) outlines two possible avenues

to attack the state court’s legal analysis: where the state court

has misstated on-point Supreme Court precedent, and where

the state court has correctly stated the standard, but its

application of the precedent is unreasonable. The PCR court

cited Strickland and Richter and correctly recited Strickland’s

two-step test. McGill does not assert otherwise; rather,

McGill limits his challenge to the second avenue, arguing that

the PCR court unreasonably applied Strickland. He raises

four claims: (a) “[r]ather than assessing if counsel acted in

accordance with prevailing professional norms in

investigating and presenting evidence, the [PCR] court

focused on the specifics of the un-presented evidence and

other mitigation that was presented”; (b) the PCR court asked

whether the evidence would have changed “the court’s view,”

rather than “whether this evidence might have affected an

objective sentencer”; (c) the PCR court imposed a causal-

nexus requirement; and (d) the PCR court failed to assess

counsel’s cumulative failures.

a. Assessing professional norms

McGill argues that the PCR court failed to evaluate

counsel’s performance “under prevailing professional norms”

as required by Strickland, 466 U.S. at 688. In Strickland, the

Court said that there were no “detailed rules for counsel’s

conduct” or “checklist for judicial evaluation,” but that we

MCGILL V. SHINN 23

should look to “American Bar Association standards and the

like” and judge counsel based on “all the circumstances.” Id.

at 688, 690. At this most elevated perch on the ladder of

abstraction, we are unclear what errors McGill thinks the

PCR court committed. The only case McGill points to in

support of his claim is our decision in Milke v. Ryan,

711 F.3d 998 (9th Cir. 2013). That case does not advance

McGill’s claim. In Milke, we granted relief where a PCR

court “applied the wrong legal authority” to the petitioner’s

claim that he was entitled to impeachment evidence under

Giglio v. United States, 405 U.S. 150 (1972). Milke, 711 F.3d

at 1006. We held that a state court unreasonably applies

clearly established federal law when it applies the wrong

legal standard. Id. at 1006–07.

McGill cannot argue that the PCR court set out the wrong

standard. It did not. The PCR court cited Strickland and

properly set out its two-step test. Under step one, the PCR

court concluded that it could “not find that [Schaffer’s]

representation fell below an objective standard of

reasonableness.” The PCR court further held that

Strickland’s “second prong which concerns prejudice [was]

not met.” To the extent we understand McGill’s argument,

we find no merit in it.

b. Evaluating new mitigation evidence

McGill claims that the PCR court misapplied Strickland

by evaluating whether the mitigation evidence would have

affected the court’s judgment rather than asking if the

evidence could reasonably have changed the outcome for the

24 MCGILL V. SHINN

trier of fact.4 In this context, prejudice under Strickland

requires a “reasonable probability” that, but for counsel

errors, one juror would have voted against the death penalty.

Wiggins, 539 U.S. at 537. The PCR court’s duty is to

“reweigh the evidence in aggravation against the totality of

available mitigating evidence” and determine whether the

result of the proceeding would have been different had the

new evidence been presented. Id. at 534 (citing Strickland,

466 U.S. at 694); White v. Ryan, 895 F.3d 641, 670 (9th Cir.

2018). That review is objective, and the state court may not

deny relief merely because “it would have imposed a death

penalty if it had considered the mitigation evidence.” White,

895 F.3d at 670.

We think that McGill has mischaracterized what the PCR

court did. McGill highlights two isolated statements from the

PCR court’s order that he claims are evidence that the PCR

court impermissibly relied on its subjective view: that

McGill’s newly presented evidence was “not significant in

the Court’s view,” and the evidence “would not have been a

significant game changer with regard to the outcome.” To

4

In this context, McGill claims that the trier of fact was the jury in the

first instance and the Arizona Supreme Court in the second. He argues

that the PCR court erred because “it focused only on the trial, and ignored

that the Arizona Supreme Court had to independently reweigh the

aggravation and mitigation.” We refuse to fault the PCR court for not

conducting two separate inquiries. We are hard pressed to understand

how any reviewing court could decide that new mitigation evidence would

not persuade a jury, but would persuade a majority of a state supreme

court. Cf. Shinn v. Kayer, 141 S. Ct. 517, 525–26 (2020) (declining to

address how the Arizona Supreme Court might have independently

weighed the evidence because “the weighing of aggravating and

mitigating evidence in a prior published decision is unlikely to provide

clear guidance about how a state court would weigh the evidence in a later

case.”).

MCGILL V. SHINN 25

start, the PCR court’s statement that newly presented

evidence was insignificant “in the Court’s view,” does not

betray the subjective analysis that McGill claims. As courts

we are always asked for “our” opinion. We can do no other

than state “in the court’s view” what the record supports and

what the law requires. Sometimes we are tasked with giving

a second-order opinion—determining, for example, whether

a set of facts might have altered the jury’s view. In this case,

it is clear from the context that the PCR court’s reference to

“the Court’s view” was a shorthand expression—the

equivalent of saying “the court concludes.” Nothing in the

PCR court’s opinion suggests that it had stepped outside its

role to say what it would have decided if it had been the jury

or the Arizona Supreme Court. The court fully explained its

reasoning. There is no constitutional error here. Nor can we

find any error in the PCR court’s reference to whether the

evidence was a “game changer.”

c. Causal-nexus test

McGill argues that the PCR court impermissibly

conditioned relief on his ability to prove a causal nexus

between his brain injury and his actions. We have previously

explained the troubled history of the causal-nexus test in

Arizona:

Beginning in the late 1980s, [the] Arizona

Supreme Court developed a “causal nexus”

test for nonstatutory mitigation. Under this

test . . . evidence of a difficult family

background or a mental condition was not in

and of itself relevant mitigating evidence. As

a matter of Arizona law, such evidence was

relevant for mitigation purposes only if it had

26 MCGILL V. SHINN

some causal effect contributing to the

defendant’s behavior in the commission of the

crime at issue. Thus, while the defendant

could submit evidence of his difficult family

background or mental condition, the

sentencing court was prohibited from treating

it as legally relevant mitigation evidence

unless the defendant proved a causal

connection between his background or

disorder and the crime. In capital cases from

the late 1980s to the mid-2000s, the Arizona

Supreme Court repeatedly articulated this

causal nexus test for nonstatutory mitigation.

The test was “contrary to . . . clearly

established Federal law, as determined by the

Supreme Court of the United States” in

Eddings [v. Oklahoma, 455 U.S. 104 (1982)].

McKinney v. Ryan, 813 F.3d 798, 813 (9th Cir. 2015) (en

banc). Accordingly, after Eddings, it is constitutional error

for a trial court to exclude mitigation evidence solely because

the defendant cannot show a causal nexus between the

evidence and his crime. See 455 U.S. at 113–14 (holding that

a sentencing court cannot “refuse to consider, as a matter of

law, any relevant mitigating evidence”). But Eddings does

not hold that evidence of a causal nexus is irrelevant to the

trier of fact. As we said in McKinney, “[o]nce the jury has

heard all the defendant’s mitigation evidence, there is no

constitutional prohibition against the State arguing that the

evidence is not particularly relevant or that it is entitled to

little weight.” McKinney, 813 F.3d at 817 (quoting with

approval State v. Anderson, 111 P.3d 369, 392 (Ariz. 2005)).

Moreover, “the failure to establish such a causal connection

may be considered in assessing the quality and strength of the

MCGILL V. SHINN 27

mitigation evidence.” Id. at 818 (emphasis added) (quoting

with approval State v. Newell, 132 P.3d 833, 849 (Ariz.

2006)). Thus, after Eddings, the sentencing court may not

exclude mitigation evidence because of a lack of a causal

nexus, but the prosecutor may argue to the jury that such

evidence is not deserving of any weight. See 455 U.S.

at 114–15.

Here, McGill argues that the PCR court—not the trial

court—erred by referring to the lack of a “causal nexus.” In

addressing that issue, the PCR court wrote:

The nexus between the defendant’s mental

condition and his actions on the night of the

murder would not have been significantly

strengthened by the testimony of Dr. Wu and

Dr. Rosengard, and thus the Court concludes

that there would not have been a reasonable

probability that the result of the proceedings

would have been different.

Schaffer testified at the PCR hearing that she was trying to

connect the dots between McGill’s head injury and his crime:

“she wanted more mitigation to give a nexus to explain that

the defendant had brain damage[,] which might explain his

violent behavior on the night in question.” The PCR court’s

findings are consistent with the record:

Dr. Lanyon was clear in his testimony that

Dr. Wu’s report would have only helped him

in one small minor way, that is[,] being

consistent with his finding that [McGill] has

some speech and language deficiencies. He

testified that Dr. Wu’s report was no

28 MCGILL V. SHINN

“smoking gun” by any means but was simply

not inconsistent with his findings. He also

testified that Dr. Rosengard’s findings did not

assist him in any way and would not have

added to the findings that he presented to the

jury.

. . . Further, had Dr. Wu and Dr. Rosengard

testified at trial, they would have completely

contradicted one another with regard to the

effect of substance abuse upon the brain and

whether or not the damage is permanent and

irreversible. This would have been an

opening for the State to poke holes in the

mitigation and would have hurt the defense’s

presentation. The Court does not find that had

Dr. Wu and Dr. Rosengard testified during the

mitigation phase of the trial that there likely

would have been a different result. At best,

their testimony would have been cumulative

and, at worst, would have contradicted each

other and weakened the mitigation

presentation.

Read in context, the PCR court’s brief conclusion that

“[t]he nexus between [McGill’s] mental condition and his

actions on the night of the murder would not have been

significantly strengthened by the testimony of Dr. Wu and

Dr. Rosengard” clearly goes to its weight and not to its

admissibility. The court’s order discounted the persuasive

value—not the relevance—of McGill’s evidence. Schaffer’s

trial strategy was to create a nexus between McGill’s brain

damage and the crime—evidence that would have been far

more persuasive than simply proving that McGill had

MCGILL V. SHINN 29

suffered a head injury. It was thus reasonable for the PCR

court to comment on the new evidence related to such a

“nexus.” And the PCR court reasonably concluded that even

if McGill’s PCR-stage evidence was admitted, its lack of

nexus to his crime rendered it less persuasive in light of the

contradictory evidence. Such an assessment is consistent

with Eddings.

d. The cumulative effect of counsel’s errors

Finally, McGill argues that the PCR court improperly

applied Strickland’s prejudice prong by evaluating his PCR-

stage evidence piecemeal instead of considering whether its

cumulative effect would have sufficiently undermined

confidence in the jury’s death sentence. To assess prejudice,

the PCR court was required to reweigh the aggravation

evidence against the newly presented mitigation evidence,

whether “adduced at trial . . . [or] in the habeas proceeding.”

Williams, 529 U.S. at 397–98; see Wiggins, 539 U.S. at 534.

The purpose is to determine whether, considering counsel’s

errors, there is a reasonable probability that the result would

have been different. Strickland, 466 U.S. at 694.

A PCR court, however, need only assess prejudice if

counsel’s performance was deficient. A court “cannot

consider the cumulative effect of non-errors.” Williams v.

Filson, 908 F.3d 546, 570 (9th Cir. 2018); see Strickland,

466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the

same order or even to address both [the performance and

prejudice] components of the inquiry if the defendant makes

an insufficient showing on one.”). McGill faults the PCR

court for limiting its prejudice determination to the effect that

Dr. Wu’s and Dr. Rosengard’s testimony would have had on

30 MCGILL V. SHINN

the jury during the penalty phase. But, for the reasons

discussed, the PCR court reasonably determined in two

separate orders that counsel’s representation at trial satisfied

Strickland’s objective standard of reasonableness. At that

point, the prejudice evaluation was unnecessary, although the

PCR court proceeded to step two of Strickland anyway. It

would make little sense to require the PCR court to consider

the cumulative effect of deficient decisions when the PCR

court did not find any particular deficiency; such a

requirement asks the court to take a pointillist view of

counsel’s performance—to see if the court can assemble a

picture from indistinct impressions. To be sure, Strickland

requires a reviewing court to consider “the totality of the

evidence,” but that holistic inquiry is a means of “taking due

account of the effect of the errors.” Strickland, 466 U.S. at

695–96 (emphasis added). If there are no errors, there is no

need to consider their cumulative effect. The PCR court

therefore reasonably applied Strickland’s objective standard

to trial counsel’s performance.

2. Determinations of fact under § 2254(d)(2)

Section 2254(d)(2) imposes a “daunting standard” to

disrupt a state court’s factual findings, which precludes relief

in all but “relatively few cases.” Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004), abrogated on other grounds by

Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).

We have recognized “several flavors” of unreasonable factual

determinations that may satisfy § 2254(d)(2). Id. These

include a state court plainly misapprehending or misstating

the record, id. at 1001 (citing Wiggins v. Smith, 539 U.S. 510,

528 (2003)); failing to consider key aspects of the record, id.

at 1008 (citing Miller-El I, 537 U.S. at 346); and ignoring

“highly probative” evidence supporting the petitioner’s claim,

MCGILL V. SHINN 31

id. at 1001. McGill identifies three PCR-court factual

findings that, he claims, meet those “flavors” of erroneous

fact finding: (a) that counsel’s decision not to call

addictionologist Dr. Beckson was tactical; (b) that McGill

failed to substantiate his claims of childhood sexual assault;

and (c) that Dr. Lanyon was a qualified expert witness upon

whom Schaffer was entitled to rely. We conclude that these

findings were reasonable.

a. Addictionologist testimony

The record supports the PCR court’s determination that

counsel’s “tactical decision not to call Dr. [Beckson] was

reasonable and does not constitute ineffective assistance of

counsel.” McGill challenges this finding with two

arguments: first, that McGill’s lead counsel did not make a

“tactical” decision not to call an addictionologist because she

was denied her addictionologist of choice; and, second, that

when Schaffer decided not to call Dr. Beckson, she failed to

seek additional funding for a different addictionologist.

As Schaffer was preparing her case, she approached

Office of Legal Affairs Director Sherwin for funding to retain

an addictionologist. Counsel’s preferred addictionologist was

Dr. Lesley Hoyt-Croft, but Sherwin denied Schaffer’s request

because Dr. Hoyt-Croft was not a medical doctor.5 Instead,

Schaffer hired Dr. Mace Beckson. McGill provides no

explanation to support why Director Sherwin’s preference to

retain a medical doctor was unreasonable. Sherwin was not

counsel of record, but as Schaffer’s supervisor, she had some

responsibility for managing the cases handled by the Office

5

The record is not precise on Sherwin’s reasons. Nothing in the

record suggests that Sherwin thought that Hoyt-Croft was not qualified.

32 MCGILL V. SHINN

of Legal Affairs. When Dr. Beckson informed Schaffer that

he could not testify unless McGill admitted his involvement

in the crime, Schaffer decided against calling Beckson as a

witness. That left her with Dr. Lanyon as McGill’s only

expert witness. The PCR court found that Schaffer’s decision

was “tactical.”

McGill argues that the PCR court’s finding is

unreasonable. The PCR court found that “[Schaffer] did not

call Dr. [Beckson] to testify because she ‘ultimately opined

that he could not assist in the case because Mr. McGill would

not admit his guilt.’” McGill argues that the finding is clearly

erroneous because Schaffer did not “opine” that Dr. Beckson

could not testify; it was Dr. Beckson who “opined” he could

not testify. According to McGill, the PCR court’s finding

should read “he” rather than “she.” Assuming that this is

indeed an error, we cannot tell whether this is an error in

perception or transcription by the PCR court. But, in either

case, it does not matter. Whether Dr. Beckson told Schaffer

that he would not testify as an addictionologist without

McGill admitting that he committed the crime, or whether

Schaffer determined that she would not put Beckson on the

stand, the context for the PCR court’s finding is clear:

Schaffer knew she could not put Beckson on the stand

because he would not be an effective witness. The PCR court

found the obvious: “[counsel] conceded that she did get an

addictionologist but that she did not want to use that

particular expert.” In that sense, her decision not to force an

ineffective expert witness to testify was “tactical.”

That finding was especially reasonable in light of

counsel’s purpose for calling an addictionologist in the first

place, which was to demonstrate the central role that McGill’s

drug abuse played in his behavior at the time of Perez’s

MCGILL V. SHINN 33

murder. In essence, the addictionologist was there to portray

McGill’s drug use as a mitigating factor for his crime instead

of an aggravating factor. But McGill’s refusal to admit any

involvement in Perez’s murder hindered Dr. Beckson’s ability

to tie McGill’s drug use to his actions leading up to the crime.

Dr. Beckson was, therefore, justified in his professional

assessment that “he could not assist in the case because

Mr. McGill would not admit his guilt.” From there, counsel’s

options were limited. Schaffer could subpoena Dr. Beckson

to testify despite his stated reservations or she could decline

to call Dr. Beckson at all. Because Dr. Beckson’s testimony

would not have been helpful to the defense, it was reasonable

for the PCR court to conclude that counsel’s decision was

tactical.

McGill argues that once Schaffer realized she could not

call Dr. Beckson, she should have secured a different

addictionologist and that it was ineffective assistance of

counsel to fail to do so. Nothing in Schaffer’s decision to

proceed without Dr. Beckson suggests she was ineffective

because she did not procure a different addictionologist. A

different addictionologist might have been willing to testify

anyway, but that is not Schaffer’s failing. She had sought

funding for a qualified addictionologist, and Sherwin had

approved funding for Dr. Beckson. Nothing in the Sixth

Amendment guarantees McGill his choice of

addictionologists, or an addictionologist who will testify

favorably to him. See Ake v. Oklahoma, 470 U.S. 68, 83

(1985). Although Schaffer made clear that she wanted

additional resources, in practice, attorneys must often decide

how to use limited resources when confronted with these

evidentiary “dead ends.” Carter v. Davis, 946 F.3d 489, 524

(9th Cir. 2019) (per curiam); see Bobby v. Van Hook,

558 U.S. 4, 11 (2009) (per curiam).

34 MCGILL V. SHINN

The PCR court also found that McGill had not shown

“how any other addiction specialist would have testified

without [McGill’s] admission.” McGill argues that this

finding is objectively unreasonable and points to Dr. French’s

PCR-stage report that an addictionologist could have testified

regardless of McGill admitting guilt. Dr. French’s report

does not change our view of the PCR court’s findings. Even

if we accepted that some other addictionologist could have

testified for McGill, the PCR court’s decision rested on the

tactical nature of counsel’s decision not to call Dr. Beckson

and not whether another addictionologist could have testified.

At that point, McGill relied on Dr. Lanyon to put his drug use

in context. Dr. Lanyon testified at the penalty phase of the

trial about McGill’s chronic methamphetamine use and that

such use generally “makes [the user] paranoid, actively

paranoid, and seriously impairs their judgment.” Indeed, he

said, such drug use “would remove any remaining fragment

of ability to reason.” The PCR court addressed Dr. French’s

report and found that Dr. French’s report “would add nothing

to Dr. Lanyon’s testimony” because Dr. French “did not

evaluate [McGill] so any testimony regarding [McGill’s]

substance abuse history, including amounts used on the night

in question, history of abuse and brain damage is

speculative.” This finding is supported in the record, as

Dr. French’s report provided similar statements regarding

chronic methamphetamine use as did Dr. Lanyon’s. Like

Dr. Beckson, neither Dr. French nor Dr. Lanyon could

connect McGill’s drug use to his actual behavior. Thus,

regardless of whether a different addictionologist could have

testified absent McGill’s admission of guilt, the only

evidence in the record suggests that testimony would have

been substantially similar to Dr. Lanyon’s. The PCR court

reasonably determined that Dr. French’s report added nothing

MCGILL V. SHINN 35

to Dr. Lanyon’s testimony and that counsel’s tactical

decisions did not constitute ineffective assistance.

b. Unsubstantiated sexual abuse

McGill claims that counsel was ineffective for failing to

investigate a sexual assault McGill said he experienced at

Boysville. At the PCR stage, McGill alleged for the first time

that he suffered two sexual assaults while at Boysville and

that those assaults would have been persuasive mitigating

evidence if presented to the jury. The PCR court rejected

McGill’s allegations of sexual assault as unsubstantiated.

McGill now contends that the PCR court ignored credible

evidence of the sexual abuse, including Dr. Rosengard’s

PCR-stage report and the account of McGill’s brother Lonnie,

explaining his own sexual abuse at Boysville.

Evidence of sexual abuse can be powerful evidence

“relevant to assessing a defendant’s moral culpability.”

Wiggins, 539 U.S. at 535; see Wharton v. Chappell, 765 F.3d

953, 978 (9th Cir. 2014). At the § 2254(d)(1) stage, the

inquiry is not whether counsel reasonably investigated the

sexual abuse, but whether the PCR court’s conclusion that

McGill failed to substantiate the abuse was reasonable in light

of the new evidence. McGill offered no evidence at trial that

he was sexually abused as a child and did not disclose sexual

abuse to anyone until his 2009 evaluation with

Dr. Rosengard—nearly a decade after Perez’s murder. Yet,

McGill had the opportunity to disclose the purported abuse as

early as 2003, when Dr. Lanyon performed his pre-trial

evaluation. Dr. Lanyon’s report noted:

Mr. McGill was questioned regarding abuse

as a child. He stated that his mother’s second

36 MCGILL V. SHINN

husband (his step-father) physically abused

him on one occasion. . . . Apparently this man

frequently threatened physical violence and

was very intimidating, but actually hit

Mr. McGill only once. Mr. McGill denied

any sexual abuse and has never considered

that he was emotionally abused.

Dr. Lanyon’s report and trial testimony demonstrate that

McGill had no reservations about disclosing physical abuse

he suffered at the hands of his step-father. Yet, there is no

indication that McGill suffered the type of sexual abuse that

McGill now alleges. The PCR court was not required to

accept McGill’s delayed allegation of abuse in light of his

earlier denial that such abuse ever happened.

Lonnie’s PCR-stage affidavit describing his own sexual

abuse at Buckner’s Boys Ranch does not render the state

court’s determination unreasonable. McGill asserts that

Lonnie’s affidavit was sufficiently corroborative of his own

sexual abuse to have prompted an evidentiary hearing. But

Lonnie’s account does not support McGill’s allegations of

abuse. Lonnie claimed that the sexual assaults occurred at

Buckner’s Boys Ranch, while McGill claims that the abuse

occurred at Boysville. McGill attempts to dismiss the

discrepancy due to Dr. Rosengard’s limited interaction with

McGill. But the inconsistencies between the two brothers’

reports support the PCR court’s conclusion that McGill did

not substantiate the sexual abuse. Even setting aside those

discrepancies, counsel could not have known about the abuse

Lonnie suffered because Lonnie was generally unhelpful to

the investigation. As Schaffer testified, and the PCR court

accepted, Lonnie “absolutely refused to cooperate in coming

to court.” Indeed, Schaffer testified that Lonnie threatened

MCGILL V. SHINN 37

her and “his brother’s case should he be forced to appear.”

Under those circumstances, it might have been ineffective

assistance of counsel to have called Lonnie as a witness; at

the very least, it was a strategic decision. We agree with the

PCR court that her decision not to call Lonnie as a witness

was “tactically sound.” In light of McGill’s earlier denials

that any sexual abuse occurred and the equivocal nature of the

new evidence, it was not “an unreasonable determination of

the facts,” 28 U.S.C. § 2254(d)(2), for the PCR court to

conclude that McGill “failed to substantiate his claim that he

was sexually abused.”

c. Expert witness qualifications

McGill claims that Schaffer was ineffective because she

allowed Dr. Lanyon to testify despite her concerns with his

preparation and testimony. During counsel’s PCR testimony,

she testified that Dr. Lanyon “did a horrible job of preparing

for his testimony” and that he “was not qualified for the tasks

presented in Mr. McGill’s case.” The PCR court disagreed,

finding that Dr. Lanyon was “a qualified expert and [that

counsel] was entitled to rely on the competency of his

evaluation.” McGill now argues that the PCR court’s focus

on whether counsel was reasonably entitled to rely upon

Dr. Lanyon’s testimony misses the point. McGill claims that

because Schaffer was forced to use Dr. Lanyon, she could not

have made a tactical decision to rely on his testimony.

McGill also argues that the PCR court’s finding that

Dr. Lanyon was qualified to testify was unreasonable because

Dr. Lanyon was an “all-purpose” expert, not tailored to

McGill’s case.

The PCR court’s finding that Dr. Lanyon was qualified to

testify was reasonable. Dr. Lanyon was a professor of

38 MCGILL V. SHINN

psychology at Arizona State University, a position he had

held since 1975. He was board certified in clinical and

forensic psychology with a specialty in psychological

assessment, all of which were important to McGill’s defense.

He also had extensive experience testifying in capital and

other cases for both the state and the defense, but more often

for the defense. See, e.g., Sansing v. Ryan, 997 F.3d 1018,

1037 (9th Cir. 2021); Bible v. Ryan, 571 F.3d 860, 869 (9th

Cir. 2009); Boggs v. Shinn, No. CV-14-02165-PHX-GMS,

2020 WL 1494491, at *41 (D. Ariz. March 27, 2020); Morris

v. Ryan, No. CV-17-00926-PHX-DGC, 2019 WL 1858137,

at *5 (D. Ariz. April 25, 2019); Newell v. Ryan, No. CV-12-

02038-PHX-JJT, 2019 WL 1280960, at *5 (D. Ariz. March

20, 2019); State v. Young, No. 1 CA-CR 13-0429, 2014 WL

6790746, at *1 (Ariz. Ct. App. Dec. 2, 2014); State v. Carr,

No. 1 CA-CR 07-1046, 2009 WL 1879494, at *2 (Ariz. Ct.

App. June 30, 2009). McGill’s classification of Dr. Lanyon

as an “all-purpose” witness “not tailored” to his specific case

rings hollow in light of Dr. Lanyon’s experience and

credentials.

Furthermore, the record supports a conclusion that

Schaffer made a tactical decision to go forward with

Dr. Lanyon’s testimony even though she had reservations

about the strength of his conclusions. Schaffer made clear in

her PCR hearing testimony that she was not happy with his

performance on the stand. She had had reservations at the

time of trial about his forthcoming testimony because he had

told her that the case was “challenging,” “he didn’t like it,”

and “the facts of the case [were] horrendous; they’re

overwhelming.” This is not the language of incompetence; it

is an expert witness who was not impressed with the results

of his testing. Dr. Lanyon’s written report cited a series of

tests he conducted in the approximately seven hours he spent

MCGILL V. SHINN 39

with McGill. He concluded that “Mr. McGill’s scores on

these tests were all in the average range. These results

suggest that he does not currently suffer any cognitive deficits

(that is, his ability to use his thinking processes) as a result of

brain impairment.” When Schaffer was asked by the state

about this conclusion, she admitted that “the problem for

[her] as a defense lawyer, reading that kind of assessment,

[was] that it’s not very useful . . . to make Mr. McGill

sympathetic to the jury during the penalty phase. . . . It was a

very difficult case to defend.” It may be an understatement

to say that Dr. Lanyon’s report was not as favorable as

counsel wished. That counsel went forward with the only

expert witness she had is evidence of the weakness of her

case and not her ineffective assistance.6

***

We conclude that McGill has not met § 2254(d)’s high

bar. The PCR court correctly identified and reasonably

applied clearly established federal law, and its conclusions

did not rely on unreasonable determinations of fact. McGill’s

claims remain subject to AEDPA’s deferential standard of

review.

B. AEDPA Review of McGill’s Ineffective Assistance of

Counsel Claim

Having determined that AEDPA review is appropriate, we

turn to the merits of McGill’s multifaceted ineffective

assistance claim. To assess the constitutional sufficiency of

counsel’s performance, we compare counsel’s actions at trial

6

We address in Part III.B.3 infra the claim that Schaffer was

ineffective in her own preparation of Dr. Lanyon.

40 MCGILL V. SHINN

with the prevailing professional norms of the time. This is an

objective test, and we must be cautious not to allow hindsight

to color our evaluation. Strickland, 466 U.S. at 680, 689.

The standard is “necessarily a general one” and reflects

counsel’s complex responsibility to “take account of the

variety of circumstances faced by defense counsel.” Van

Hook, 558 U.S. at 7 (quoting Strickland, 466 U.S. at 688–89).

We therefore begin our analysis with a “strong presumption”

that counsel’s decisions reflect “reasonable professional

judgment.” Cullen v. Pinholster, 563 U.S. 170, 190, 196

(quoting Strickland, 466 U.S. at 689–90)). Moreover,

because our review under both AEDPA and Strickland’s

standards are highly deferential to the PCR court’s underlying

decision, our review here must be “doubly deferential.” Id.

at 190 (citation omitted). Surmounting such a “high bar is

never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371

(2010).

McGill’s ineffective assistance of counsel claim arises

from counsel’s purported failure at the penalty phase to

(1) develop a “relationship of trust” with McGill and his

family; (2) obtain “classic sources” of mitigation evidence;

(3) prepare Dr. Lanyon for his testimony; and (4) uncover and

present evidence of McGill’s substance abuse, sexual assault,

and domestic violence.

1. Development of a relationship of trust

McGill claims that “Schaffer and her team failed to

develop a relationship of trust or a rapport with McGill and

his family,” and attributes McGill’s refusal to share

mitigating information to that failing. The PCR court

concluded that it could “not find that Ms. [Schaffer’s]

MCGILL V. SHINN 41

representation fell below an objective standard of

reasonableness.”

The PCR court’s conclusion is not contrary to clearly

established Supreme Court precedent. Nothing in the Sixth

Amendment suggests that an accused is entitled to “rapport”

with his attorney, and McGill has not directed us to any case

from the Supreme Court establishing such a proposition.

Indeed, McGill’s argument is not only not supported by

Supreme Court authority, it is contrary to Morris v. Slappy,

461 U.S. 1, 14 (1983). There, the Supreme Court held that

the Sixth Amendment right to counsel did not guarantee

criminal defendants “a meaningful attorney-client

relationship.” Id. at 13 (emphasis omitted). The Court

explained that “[n]o court could possibly guarantee that a

defendant will develop the kind of rapport with his attorney”

necessary to meet such a standard. Id. Accordingly, the

Court “reject[ed] the claim that the Sixth Amendment

guarantees a ‘meaningful relationship’ between an accused

and his counsel.” Id. at 14 (footnote omitted).

Perhaps sensing the lack of any Supreme Court authority,

McGill pivots to challenge the amount of time counsel spent

with McGill and his family. He claims that Schaffer met with

McGill for less than ten hours. He provides no further

context, cites no cases establishing a standard for measuring

time with a client, and refers only to the broadest of ABA

guidelines for the criminal defense bar. That is not sufficient

to satisfy his burden under AEDPA. The Court has

consistently cautioned us against imposing a mechanical

standard by which counsel may be evaluated. See Van Hook,

558 U.S. at 7 (recognizing that Strickland’s standard was

“necessarily a general one”); see also Strickland, 466 U.S. at

689 (finding that formulaic rules or duties “interfere with the

42 MCGILL V. SHINN

constitutionally protected independence of counsel”). We

must consider whether the time counsel spent in consultation

reflects “reasonable professional judgment.” Strickland,

466 U.S. at 690. There is no evidence that ten hours of

consultation was unreasonable or that it undermined McGill’s

defense. Counsel’s strategy was to focus on mitigation,

which might not have required extensive time with McGill.

The defense team traveled to interview McGill’s family,

obtained hundreds of pages of records, and presented four

days of mitigation testimony.

Nor is there any evidence that the defense team violated

McGill’s trust or that of his family. McGill cannot escape the

fact that, as Schaffer put it, much of his family was “either

dishonest or not cooperative” in answering counsel’s

questions. Given the depth and breadth of mitigation

evidence counsel presented, the PCR court reasonably

concluded that counsel’s performance did not fall below

prevailing professional norms.

2. Investigation of additional mitigation records

McGill claims that Schaffer failed to obtain “classic”

sources of mitigation evidence, such as McGill’s juvenile

adjudications, police reports, marriage and divorce records,

school test scores, and his siblings’ arrest records. The PCR

court noted that McGill’s mitigation specialist “testified for

three days on the witness stand when she told [McGill’s] life

story including his difficult childhood, drug abuse, and

alleged domestic violence. All these areas were explored in

detail.” The court also concluded that counsel “present[ed]

to the jury a substantial amount of mitigation” evidence with

respect to “substance abuse . . . . [his] dysfunctional family

background, [and] his relationship with Ms. Hardesty.” That

MCGILL V. SHINN 43

included “evidence that [McGill] had an abusive childhood;

that he was psychologically immature and, as a result, his

girlfriend had greater than normal influence over him; that he

suffered from some degree of mental impairment; that he

performed well in institutional settings; and that his family

cares about him.” The court also found that Dr. Lanyon

“reviewed substantial relevant information concerning

Defendant McGill’s background.” From this, the PCR court

concluded that it could “not find that Ms. [Schaffer] was

ineffective in presenting these issues to the jury.”

“[M]itigation evidence [can] complete, deepen, or

contextualize the picture of the defendant presented by the

prosecution [and] can be crucial to persuading jurors that the

life of a capital defendant is worth saving.” Allen v.

Woodford, 395 F.3d 979, 1000 (9th Cir. 2005). To that end,

penalty-phase counsel must conduct a thorough investigation

into the relevant mitigation evidence. See Williams, 529 U.S.

at 396. Counsel need not “scour the globe on the off chance

something will turn up,” Rompilla v. Beard, 545 U.S. 374,

385 (2005), but it is nonetheless obligated “to conduct a

thorough investigation of the defendant’s background.”

Williams, 529 U.S. at 396; see Boyde v. California, 494 U.S.

370, 382 (1990).

The record amply supports the PCR court’s findings.

McGill’s counsel presented extensive mitigation evidence and

diligently attempted to discover much more. Mitigation

Specialist Brewer obtained documents spanning much of

McGill’s life, including McGill’s elementary and middle

school records, foster care placement records, records from

Buckner’s and Boysville, records of his convictions and

incarcerations, and post-incarceration employment records.

Brewer also attempted to recover other records but was

44 MCGILL V. SHINN

thwarted by factors outside her control. For example, a

hospital record-retention policy prevented her from obtaining

medical records to corroborate McGill’s head injury, and

Buckner’s Boys Ranch provided all of McGill’s available

records, which happened to be incomplete. McGill’s public

school records also proved difficult to obtain because the

schools often did not keep full records and regularly

forwarded records to new schools when McGill and his

family moved. Nevertheless—and despite the difficulty in

obtaining complete records—Brewer filled the gaps in the

mitigation record with interviews and testimony from

McGill’s family and friends. Counsel and the defense team

as a whole endeavored to uncover as much mitigation

evidence as possible, and it is unclear what else they could

have done to supplement the mitigation records they did

obtain. We are not persuaded that their efforts were

deficient.7

Nor is there any evidence that the mitigation records

McGill now seeks were readily available. Without citations

to the record, McGill alleges that there are juvenile records,

boys’-home records, and elementary school records that

would have aided the defense. We do not know what these

documents are, and he offers no explanation for how counsel

overlooked or otherwise should have discovered them.

McGill’s speculation that these records would have aided his

7

Dr. Lanyon’s penalty-phase testimony further illuminates the

breadth of mitigation evidence that the defense team recovered. He

testified that counsel provided “quite a lot of school records, junior high

school records and records from the institutions [McGill] was put in as a

child . . . and . . . interview notes from interviews of a variety of people

who knew [McGill].” The Arizona Supreme Court echoed Dr. Lanyon’s

sentiment two years later, finding the amount of mitigation evidence

presented was “not insignificant.” McGill I, 140 P.3d at 945.

MCGILL V. SHINN 45

mitigation effort is unpersuasive given the extensive

testimony presented during the penalty phase.

3. Preparation of Dr. Lanyon

McGill also claims that Schaffer did not adequately

prepare Dr. Lanyon. The PCR court found that counsel was

not deficient for failing to hire additional mental-health

experts and that she adequately prepared Dr. Lanyon for his

penalty-phase testimony. Both conclusions were reasonable.8

We will accept as a general proposition that counsel is

under a duty to prepare witnesses for their testimony. At the

same time, “there is no expectation” that an attorney prepare

for every possible contingency; she need not be a “flawless

strategist or tactician,” and “may not be faulted for a

reasonable miscalculation or lack of foresight or for failing to

prepare for what appear to be remote possibilities.” Richter,

562 U.S. at 110.

Much of McGill’s frustration with Dr. Lanyon arises out

of the state’s effective cross-examination during his penalty-

phase testimony. Before he submitted his written report,

Dr. Lanyon examined McGill, conducted various

psychological tests, and reviewed extensive records provided

to him by counsel. At trial, counsel asked Dr. Lanyon about

8

To the extent that McGill renews his argument that it was

unreasonable for counsel to rely on Dr. Lanyon’s testimony because she

was forced to use him as an expert witness, that argument fails for the

reasons discussed in Part III.A.2.c. Dr. Lanyon was qualified to evaluate

McGill and had extensive experience testifying in capital cases. In any

event, criminal defendants do not have a constitutional right “to choose

[an expert] of his personal liking or to receive funds to hire his own.” Ake,

470 U.S. at 83.

46 MCGILL V. SHINN

a head injury McGill suffered in a car accident about eight

months before he committed two armed robberies, for which

he served time in prison. Dr. Lanyon testified that McGill

described the symptoms he suffered after the accident.

Dr. Lanyon testified such symptoms were consistent with

frontal lobe damage. Dr. Lanyon added that McGill told him

“he had no recollection of these robberies at all.” Dr. Lanyon

then stated that his “opinion of this, having written the report

and sort of reflected on it, [is] that it’s more likely that the

head injury itself wiped out his memory[,] which is a

common occurrence with head injuries.”

On cross-examination, the state jumped on McGill’s

statement to Dr. Lanyon that he had no recollection of the

robberies and Dr. Lanyon’s conclusion that such memory loss

was consistent with frontal lobe damage. The state

introduced two police reports and a pre-sentence report in

which McGill described the robberies in great detail. What

was unknown to Dr. Lanyon at the time was that defense

counsel had previously obtained the reports used to impeach

his testimony but chose not to disclose them to

Dr. Lanyon—a decision that set Dr. Lanyon up. After being

shown the reports counsel withheld from him, Dr. Lanyon

had the following exchange with the prosecutor:

Q: Does it appear from my reading of that

portion of the police report, Dr. Lanyon,

that Mr. McGill, in fact, had a memory of

the events which occurred during the

second robbery?

A: If that is accurate as you say, it appears

that he did.

MCGILL V. SHINN 47

....

Q: And it appears that he had no blackout or

amnesia at all which could be attributed to

a head injury?

A: Not at that time, correct.

The result was devastating to the conclusion counsel was

trying establish, and Schaffer later admitted “the lack of

corroboration contributed to Dr. Lanyon being discredited by

the State.”

The consequences of counsel’s decision to withhold the

pre-sentence reports from Dr. Lanyon may entice us to find

counsel’s preparation of Dr. Lanyon deficient. But we may

not second-guess counsel’s decision based on “the distorting

effects of hindsight.” Strickland, 466 U.S. at 689. If counsel

strategically withheld the reports after considering reasonable

alternatives, Strickland prohibits us from critiquing counsel’s

decision after the fact. Id. Such tactical decisions represent

“sound trial strategy” and are “virtually unchallengeable.”

See id. at 689, 690 (quoting Michel v. Louisiana, 350 U.S. 91,

101 (1955)). Despite the consequences of counsel’s decision

to withhold the pre-sentence reports from Dr. Lanyon, it was

a reasonable and tactical decision at that time.

At her PCR-stage testimony, Schaffer explained that she

purposefully withheld various pre-sentence reports to protect

McGill’s credibility with Dr. Lanyon. In particular, at the

time, counsel believed that, in connection with one of the

robberies, McGill had lied to a probation officer about having

a child that he needed to care for, an allegation that counsel

could not confirm. Counsel was concerned that if Dr. Lanyon

48 MCGILL V. SHINN

learned that McGill had been untruthful during the pre-

sentence process that it would harm his credibility with

Dr. Lanyon. As counsel saw it, she had two options, neither

of which was particularly good. She could disclose the pre-

sentence reports to Dr. Lanyon and risk destroying McGill’s

credibility with his only expert witness, or she could withhold

the reports in an effort to protect McGill’s credibility.

Counsel chose the latter, a decision that she characterized as

a “strategic decision on [her] part.”

This is precisely the type of tactical decision that

Strickland protects. 466 U.S. at 690–91. It is clear that

counsel did not take lightly the decision to withhold

information from Dr. Lanyon. In fact, counsel testified that

the decision to withhold the reports was not unanimous

among the defense team and that as lead counsel, she made

the ultimate decision to do so. That the defense team

discussed the benefits and potential consequences of not

disclosing the pre-sentence reports is strong evidence that

counsel’s decision was sound trial strategy. Although

counsel’s decision may have ultimately harmed the mitigation

effort, we cannot say that the decision fell outside “the wide

range of reasonable professional assistance.” Id. at 689. Had

Schaffer decided to provide Dr. Lanyon with the pre-sentence

reports, McGill may have had an even less effective case for

mitigation.

4. Evidence of substance abuse, sexual assault, and

domestic violence

McGill claims that counsel was ineffective in

investigating evidence of substance abuse, sexual assault and

domestic violence. Under Williams, counsel’s investigation

falls short if it was insufficient to uncover evidence that

MCGILL V. SHINN 49

reasonably should have been uncovered. See 529 U.S. at 396;

see also Porter v. McCollum, 558 U.S. 30, 40 (2009)

(granting relief where counsel ignored avenues of potential

mitigation evidence “of which he should have been aware”).

The PCR court concluded that the defense presented “a

substantial amount of mitigation” with respect to McGill’s

substance abuse, and his abusive relationship with Hardesty

was “thoroughly explored.” As for McGill’s claim that he

was sexually abused at Boysville, that was carefully reviewed

by the PCR court, which concluded that he “ha[d] failed to

substantiate his claim that he was sexually abused as a child.

Therefore his trial counsel was not ineffective for failing to

further investigate this potential mitigation.” In particular,

the PCR court found, as we have discussed, that McGill

himself “denied any such abuse.” The PCR court found that

counsel adequately investigated evidence of McGill’s

substance abuse history, prior sexual abuse, and domestic

violence. Here, the PCR court reasonably concluded that

counsel’s investigation met Williams’s standard.

a. Substance abuse history

We previously discussed PCR counsel’s interactions with

addictionologist Dr. Mace Beckson through the lens of

whether the PCR court relied on unreasonable determinations

of fact under § 2254(d)(2). We must now evaluate whether

counsel’s investigation into McGill’s drug-related mitigation

evidence was sufficient and whether her decision not to retain

a different addictionologist was reasonable. Although there

is some overlap between this claim and the § 2254(d)(2)

claim, here we focus on counsel’s performance rather than the

PCR court’s factual determinations. We start with counsel’s

investigation into McGill’s substance abuse history.

50 MCGILL V. SHINN

Counsel’s investigation into McGill’s substance abuse

history was thorough and expansive. The defense team

discovered and presented evidence of drug use spanning

decades of McGill’s life. Dr. Lanyon testified that McGill

began using alcohol at nine years old and progressed to

marijuana by thirteen. McGill eventually progressed to

chronic, daily methamphetamine use, which often caused

active paranoia, impaired his judgment, and interfered with

“any remaining fragment of ability to reason.” Dr. Lanyon’s

psychological evaluation also shed light on McGill’s drug use

in the weeks leading up to the crime. McGill actively used

methamphetamine and “had been awake for several days at

the time of the events with which he [was] charged.”

McGill’s brother, Cordell, supported Dr. Lanyon’s testimony,

stating that McGill and Hardesty used crystal

methamphetamine “all the time.”

Nevertheless, McGill contends that counsel’s

investigation into his prior drug use was objectively deficient.

He likens this case to Porter, where counsel “had only one

short meeting with Porter regarding the penalty phase” and

“did not obtain any of Porter’s school, medical, or military

service records or interview any members of Porter’s family.”

558 U.S. at 39 (“counsel did not even take the first step”).

The Court had little difficulty concluding that a “decision not

to investigate did not reflect reasonable professional

judgment.” Id. at 40. The investigation in McGill’s case

bears no resemblance whatsoever to the deficient

investigation in Porter.

Nor was counsel deficient for failing to retain an alternate

addictionologist. It is unclear exactly what additional

evidence McGill believes counsel would have uncovered had

she done so. After reviewing Dr. French’s PCR-stage report,

MCGILL V. SHINN 51

we are unconvinced that an alternate addictionologist would

have more effectively investigated or presented McGill’s

substance abuse history. McGill assumes that an

addictionologist would have more precisely attributed

McGill’s behavior to his drug use by testifying to the effects

that methamphetamine had on McGill. However,

Dr. French’s report suffers from the same ambiguity and

generalization as Dr. Lanyon’s trial testimony. Although

Dr. French listed more potential symptoms of

methamphetamine use than Dr. Lanyon, he did not link

McGill’s behavior to any particular one. Nor did he opine on

whether the type, amount, or concentration of

methamphetamine McGill was using could have influenced

McGill’s decision-making on the night of the crime. In the

end, the PCR court found that Dr. French’s conclusions were

“speculative” because, unlike Dr. Lanyon, Dr. French never

examined McGill. The PCR court, thus, reasonably

concluded that counsel conducted a thorough investigation of

McGill’s background and presented substantial evidence of

substance abuse to the jury.

b. Childhood sexual abuse

The PCR court similarly held that counsel adequately

investigated whether McGill suffered childhood sexual abuse.

Evidence of sexual assault can be particularly powerful at the

penalty stage due to its devastating and long-lasting effect on

the victim. See Wiggins, 539 U.S. at 534–35. Such evidence

is especially powerful when the abuse occurs regularly over

an extended period of time. Id.; Wharton, 765 F.3d at 977.

However, evidence of sexual assault does not always “tip the

scales” toward leniency. Wharton, 765 F.3d at 978. For

instance, we have denied relief where allegations of sexual

abuse were bare or unsupported, Schurz v. Ryan, 730 F.3d

52 MCGILL V. SHINN

812, 815 (9th Cir. 2013), or where it was unclear whether the

alleged sexual abuse actually occurred, Samayoa v. Ayers,

649 F.3d 919, 929 (9th Cir. 2011). We have also recognized

that even if evidence of sexual abuse may have made a

petitioner more sympathetic to a jury, it may also have the

unwanted effect of making him seem less likely to be

rehabilitated. Benson v. Chappell, 958 F.3d 801, 833 (9th

Cir. 2020).

The problem for McGill is that there is no reliable

evidence that he was sexually abused. The investigators did

not turn up any well-grounded evidence, and McGill did not

produce any such evidence for the PCR court. As the PCR

court found, McGill came forward with evidence that his

brother Lonnie had been abused at Buckner’s Boys Ranch,

but no one could testify that McGill had. And given that

McGill had denied to Dr. Lanyon that he was sexually

abused, there was nothing for counsel to investigate. Under

any standard, “counsel is not deficient for failing to find

mitigating evidence if, after a reasonable investigation,

nothing has put the counsel on notice of the existence of that

evidence.” Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th

Cir. 1998) (quoting Matthews v. Evatt, 105 F.3d 907, 920 (4th

Cir. 1997), abrogated on other grounds by Miller-El v.

Dretke, 545 U.S. 231 (2005)).

Nevertheless, McGill argues that two red flags should

have prompted reasonable counsel to investigate further:

Lonnie’s childhood sex abuse and McGill’s placement in

foster care. But neither piece of evidence renders counsel’s

investigation unreasonable. Evidence that Lonnie was

sexually assaulted in a boy’s home did not mean that McGill

was also sexually assaulted there. For instance, a second

brother, Cordell, testified during the penalty phase that he had

MCGILL V. SHINN 53

not suffered any type of sexual abuse at either Boysville or

Buckner’s and was unaware of whether McGill suffered such

abuse. Further, investigating sexual abuse in McGill’s past

on the basis of Lonnie’s allegations of abuse would have been

particularly difficult because Lonnie was uncooperative and

“absolutely refused” to come to court.

Second, the fact of foster-care placement is not itself

indicative of sexual abuse. McGill points to Wiggins for

support, but it does not stand for such a broad proposition.

There, the Court granted relief in part based on counsel’s

failure to uncover reasonably available evidence of Wiggins’s

“repeated rape during his . . . years in foster care.” Wiggins,

539 U.S. at 535. Nothing in Wiggins suggests a categorical

imperative that counsel thoroughly investigate the possibility

of sexual abuse for every capital defendant who has been

placed in state care. Moreover, even if Wiggins did create

some duty of inquiry, it does not stand for the proposition that

counsel must continue to investigate sexual abuse after the

defendant’s express denial that such abuse ever occurred.

Thus, Wiggins is not the “clearly established Federal law”

that would require counsel to perform additional investigation

into a claim of abuse that McGill’s family did not disclose

and that he actively denied.

In any event, we are unsure what more Schaffer should

have done to investigate McGill’s alleged sexual abuse. The

defense team performed several interviews with McGill’s

family, but no one mentioned sexual abuse. Counsel retained

Dr. Lanyon who probed McGill on any childhood abuse, but

McGill denied suffering sexual abuse. Counsel requested

several records from the boy’s homes where McGill was

placed, but the records did not include details of sexual abuse.

After performing such a thorough investigation, we see

54 MCGILL V. SHINN

nothing that should have placed counsel on notice of the

abuse or demanded further investigation. Thus, the PCR

court reasonably concluded that counsel was not deficient for

failing to conduct additional investigation into sexual abuse.

c. Domestic violence

The PCR court concluded that counsel presented adequate

evidence of McGill’s relationship with Hardesty to portray

her effect on him and that counsel was not ineffective for

failing to retain a domestic violence expert to explain the

McGill-Hardesty relationship. These conclusions were

reasonable.

Counsel left the jury little doubt that Hardesty was

psychotic and abusive. During closing arguments, counsel

characterized the relationship as “codependent” and “sick”

and opined that Hardesty was “crazy.” Counsel also

explained McGill’s apparent weakness for Hardesty, stating

that McGill “simply cope[d] with her psychoses, her

addictive behaviors and her serious mental and physical

abuse.” Dr. Lanyon and several of McGill’s family members

echoed those statements during the penalty phase.

Dr. Lanyon added that McGill was uniquely susceptible to

Hardesty’s manipulation as a result of the deep-seated

psychological wounds left by his mother. And even McGill’s

mother testified that Hardesty was “one of the most evil

people” she had ever met. Indeed, the PCR court aptly noted

that Hardesty’s influence on McGill was, in part, “the focus

of the mitigation [case].”

There is no indication that a domestic violence expert

would have better conveyed that mitigation evidence to the

jury. McGill speculates that an expert would have more

MCGILL V. SHINN 55

effectively explained the effects of Hardesty’s domestic

violence, but he does not provide any expert report,

declaration, or other evidence to support that speculation.

That none of McGill’s witnesses used the words “domestic

violence” does not detract from the clarity with which they

described Hardesty’s effect on McGill. The PCR court

reasonably found that counsel performed an adequate

investigation into Hardesty’s abuse and McGill’s unhealthy

reliance on her.

5. Failure to Explain Adequately McGill’s Prior Armed

Robbery Convictions

McGill argues that Schaffer should have presented the

circumstances surrounding his prior armed robbery

convictions in a way that would have softened the convictions

to the jury and that her failure to do so was ineffective

assistance of counsel. The PCR court saw “no merit” in the

claim and held that McGill “[did] not contest the validity of

this prior conviction” as an aggravator. His claim that “his

alleged brain damage” affected its commission was

“speculative and not substantiated by any of the exhibits.”

McGill’s armed robbery convictions constituted statutory

aggravating factors under Ariz. Rev. Stat. § 13-703(F)(2).

Counsel attempted to soften the impact of the robberies as

aggravators. Dr. Lanyon also gave the jury insight into

McGill’s state of mind at the time, testifying that he was

essentially homeless, “living hand to mouth,” and drinking

heavily.9

9

The PCR court did commit one clear error in its explanation of who

communicated the details of McGill’s robbery to the jury. The court

found:

56 MCGILL V. SHINN

McGill now argues that counsel failed to investigate his

brain damage and explore how it might have contributed to

his robberies. He points to PCR testimony from Dr. Wu and

Dr. Rosengard. We have previously discussed their

testimony in connection with the causal-nexus test. See

Part III.A.1.c. We will not repeat our analysis, except to note

that the PCR court concluded that, at best, their testimony

would have added little to Dr. Lanyon’s testimony and, at

worst, “would have been an opening for the State to poke

holes in the mitigation and would have hurt the defense’s

presentation.” These findings are not unreasonable.

***

Further, [McGill] recounted his prior crimes in detail

on cross-examination (as he did to the presentence

writer), undermining any claim that he blacked out or

could not recall his crimes.

McGill neither testified, nor was he cross-examined at trial, rendering that

portion of the PCR court’s factual findings verifiably false. McGill seizes

on that error to argue that the PCR court’s ultimate conclusion relied upon

an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2).

Nothing, however, turned on whether McGill testified in court that he

could not recall the robberies or told the presentence report writer that he

could not recall the crimes.

The PCR court’s error merely misrepresented the medium by which

the jury received McGill’s statements—not the statements themselves.

Rather than McGill making those statements on cross-examination as the

PCR court incorrectly stated, the prosecutor introduced McGill’s prior

statements during Dr. Lanyon’s cross-examination. That does not change

the fact that the jury heard McGill’s own statements recounting the details

of the robberies. The PCR court acknowledged as much when it noted

that McGill also recounted the details to a pre-sentence writer. Thus, the

PCR court’s conclusion was reasonable despite its slip of the pen.

MCGILL V. SHINN 57

McGill has not shown that counsel performed deficiently

under Strickland at the penalty phase of his trial. The PCR

court reasonably concluded that counsel’s preparation,

investigation, and presentation of mitigation evidence was

thorough and reasoned. As a whole, the defense team

uncovered a “not insignificant” amount of mitigation

evidence that spanned decades of McGill’s life and presented

a comprehensive picture to the jury. See McGill I, 140 P.3d

at 945. Conversely, there is no evidence that counsel failed

to uncover any reasonably available mitigation records. We

therefore conclude that counsel’s performance was not

objectively deficient in light of the prevailing professional

norms. Because counsel’s trial performance was adequate,

we do not reach McGill’s claims of prejudice. See Strickland,

466 U.S. at 697.

IV. UNCERTIFIED CLAIMS

We now turn to the two claims that the district court did

not certify for appeal: that counsel was ineffective at the guilt

phase by failing to retain an expert arson investigator; and

that his death sentence violated the Ex Post Facto Clause.

We must consider whether McGill has made the

necessary showing of a constitutional deprivation to warrant

a certificate of appealability on any of his claims. As we

have previously set out, habeas petitioners cannot appeal the

denial of a § 2254 petition without first obtaining a certificate

of appealability. See 28 U.S.C. § 2253(c)(1); Miller-El I,

537 U.S. at 327, 335–36. To proceed, McGill must

demonstrate a “substantial showing” that he suffered a

deprivation of a constitutional right. 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). He meets

that standard if reasonable jurists “could disagree with the

58 MCGILL V. SHINN

district court’s resolution of his [case] . . . or that . . . the

issues presented are adequate to . . . proceed further.” Miller-

El I, 537 U.S. at 327. Applying that standard, we deny a

certificate of appealability on McGill’s ineffective assistance

claim at the guilt phase. We grant a certificate of

appealability on McGill’s ex post facto claim but deny relief

on the merits.

A. Ineffective Assistance at the Guilt Phase for Failure to

Hire an Arson Expert

This claim is unique among McGill’s ineffective

assistance claims as it is the only claim challenging counsel’s

performance at the guilt stage. McGill argues that counsel

was deficient for failing to retain an arson expert at trial to

rebut the state’s evidence that McGill mixed styrofoam into

the gasoline before dousing Perez and Banta. McGill did not

raise this claim in his state PCR petition, however, resulting

in the claim being procedurally defaulted. See Martinez v.

Ryan, 566 U.S. 1, 9 (2012); Coleman v. Thompson, 501 U.S.

722, 753–54 (1991). To cure the default, McGill also argues

that PCR counsel performed deficiently by failing to raise this

claim before the PCR court.

Martinez announced a possible, narrow exception in

cases, like this one, where the alleged cause of a procedural

default is the ineffective assistance of PCR counsel. To cure

the default, a petitioner must show that PCR counsel was

ineffective under Strickland and that the underlying

ineffective assistance claim is “substantial . . . which is to say

that . . . the claim has some merit.” Martinez, 566 U.S. at 14

(citation omitted). The analysis of a claim’s substantiality

mirrors the standard for issuing a certificate of appealability,

see id.–namely, whether “reasonable jurists would find” the

MCGILL V. SHINN 59

denial of relief “debatable or wrong.” See Miller-El I,

537 U.S. at 338 (citation omitted). Martinez thus created a

layered analysis in which we must determine (1) whether

PCR counsel was ineffective under Strickland—with its own

two-part test—for failing to raise the underlying claim and

(2) whether the underlying claim “has some merit.” 566 U.S.

at 14.

Reasonable jurists would find it undebatable that McGill

has not satisfied Martinez because counsel’s decision not to

call an arson witness was reasonable under Strickland.

McGill makes much out of witness testimony that he mixed

styrofoam into the gasoline to make it more difficult for Perez

and Banta to extinguish the flames. He assumes that, had

counsel more effectively rebutted that testimony, the jury

would not have found that he committed the crime in an

especially cruel manner. But the state’s reliance on the

styrofoam testimony was inconsistent at best. Two state

witnesses testified that McGill told them that he mixed

styrofoam into the gas, which created a sticky “napalm-like”

substance. On the other hand, the state’s own experts

discounted the styrofoam testimony. The state’s expert arson

investigator, for example, testified that he found no evidence

of styrofoam at the scene and was unsure whether the mixture

McGill described was even possible. The state’s expert

criminologist similarly testified that he would expect to find

high concentrations of styrene at the scene had McGill used

styrofoam but that he did not find above-average amounts of

styrene in his testing. Whether McGill actually put styrofoam

in the container of gasoline or merely said he did so is unclear

as evidenced by the state’s own experts. It was reasonable for

counsel not to retain an arson expert to rebut that testimony.

Such rebuttal would only have emphasized the disputed fact

to the jury.

60 MCGILL V. SHINN

Moreover, reasonable jurists would not find it debatable

that counsel’s failure to retain an arson expert did not

reasonably influence whether the jury would find that McGill

committed this crime in an especially cruel manner. As both

the Arizona Supreme Court and the district court noted, a

crime is especially cruel “if the victim consciously

experienced physical or mental pain prior to death, and the

defendant knew or should have known that suffering would

occur.” See McGill I, 140 P.3d at 938 (citation omitted).

Any reasonable defendant would know that dousing two

people in gasoline and lighting them on fire would

“necessarily cause[] . . . tremendous suffering.” Id. Indeed,

before Perez succumbed to his burns, he “scream[ed] in pain”

and pleaded with nurses to “[g]et the pain away.” Id. at 934.

No reasonable jurist would conclude that the essential cruelty

of McGill’s crime in this case would turn on whether he did

or did not mix styrofoam into the gasoline before igniting his

victims. We therefore deny a certificate of appealability on

this issue.

B. McGill’s Death Sentence and the Ex Post Facto Clause

We turn, finally, to whether McGill’s death sentence

violated the Ex Post Facto Clause. In Ring v. Arizona,

536 U.S. 584 (2002) (Ring I), the Supreme Court invalidated

Ariz. Rev. Stat. § 13-703(C) (2001) because it required the

sentencing judge—not the jury—“to find an aggravating

circumstance necessary for imposition of the death penalty.”

536 U.S. at 609. Perez’s murder fell within the brief period

between Ring I and Arizona’s amendment of § 13-703. On

direct appeal to the Arizona Supreme Court, McGill argued

that Arizona lacked a valid procedure to sentence him to

death at the time he committed his crime, in violation of the

Ex Post Facto Clause. The Arizona Supreme Court denied

MCGILL V. SHINN 61

relief, stating only that it had already rejected the argument.

See McGill I, 140 P.3d at 945 (citing State v. Ring, 65 P.3d

915, 928 (Ariz. 2003) (en banc) (Ring II)). We believe that

reasonable jurists could find debatable whether Arizona’s

death-sentencing process violates the Ex Post Facto Clause,

and we therefore grant a certificate of appealability as to this

issue. We conclude, however, that the Arizona Supreme

Court reasonably applied clearly established federal law when

it determined that Arizona had only made a procedural

change to its death penalty process, and that change did not

violate the Ex Post Facto Clause. See Ring II, 65 P.3d

at 926–28.

A brief review of the timeline is helpful to frame

McGill’s argument. In the years leading up to Perez’s

murder, two separate statutory provisions codified the state’s

use and imposition of the death penalty: “availability”

provisions and “procedural” provisions. The availability

provisions specified what offenses were eligible for death and

what aggravating factors were necessary to make that penalty

available as punishment in a given case. Thus, Ariz. Rev.

Stat. § 13-1105 (2001), stated that “[f]irst degree murder is a

class 1 felony and is punishable by death or life imprisonment

as provided by [Ariz. Rev. Stat.] section 13-703,” and Ariz.

Rev. Stat. § 13-703(G) (2001) listed the statutory aggravating

circumstances that would make the death penalty available

for a particular offender convicted of first degree murder.

The procedural provisions, which were contained in the

remaining provisions of § 13-703, outlined the procedure by

which a death sentence was imposed. They allocated the

burden of proof and provided for the broad admissibility of

mitigating evidence. Id. § 13-703(B)–(F). Importantly, and

relevant here, § 13-703(C) reserved for the “court alone” the

duty to “make all factual determinations” regarding

62 MCGILL V. SHINN

aggravation and mitigation evidence to determine whether to

impose a capital sentence. Ring I, 536 U.S. at 592–93 (citing

Ariz. Rev. Stat. § 13-1105(C)); see also Ariz. Rev. Stat. § 13-

703(F) (2001) (“court . . . shall impose a sentence of death if

the court finds one or more of the aggravating circumstances

enumerated in subsection G of this section and then

determines that there are no mitigating circumstances

sufficiently substantial to call for leniency”).

In June 2002, the Court held unconstitutional the relevant

portions of § 13-703(C) and § 13-703(F) under the Sixth

Amendment, concluding that the right to a jury trial required

the jury “to find an aggravating circumstance necessary for

imposition of the death penalty.” Id. at 609 (overruling

Walton v. Arizona, 497 U.S. 639 (1990), in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000)). Thirty-eight days after

Ring I, Arizona amended § 13-703 to require the “trier of

fact” to “find[] one or more of the aggravating circumstances

enumerated in subsection F” and to weigh any such

aggravating factors against the mitigating circumstances in

deciding whether to impose a capital sentence. See Ariz.

Rev. Stat. § 13-703(E) (2002). McGill murdered Perez

during that thirty-eight-day interregnum. He argues that

Arizona lacked a valid death penalty when he committed his

crime, and that Arizona’s law curing the Ring I defect

violates the Ex Post Facto Clause.

The Ex Post Facto Clause provides that “No State shall

. . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10,

cl. 1. It prohibits a state from retroactively changing the

definition of a crime to make formerly innocent behavior

illegal or increasing the punishment for criminal acts. See

Collins v. Youngblood, 497 U.S. 37, 42–43 (1990); see also

Dobbert v. Florida, 432 U.S. 282, 292 (1977); Beazell v.

MCGILL V. SHINN 63

Ohio, 269 U.S. 167, 169–70 (1925); Calder v. Bull, 3 U.S.

(3 Dall.) 386, 390 (1798) (opinion of Chase, J.). The

Supreme Court has set out three factors to determine whether

a challenged law was issued ex post facto. First, the law must

be retrospective, meaning that it applies to actions that pre-

date its enactment. Miller v. Florida, 482 U.S. 423, 430

(1987) (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)).

Second, application of the new law must disadvantage the

defendant. Id. Third, the law must affect the defendant’s

substantial rights such that it alters “the quantum of

punishment.” Weaver, 450 U.S. at 33 (quoting Dobbert,

432 U.S. at 293–94). Mere procedural changes that “simply

alter[] the methods employed in determining [a sentence]” do

not affect substantial rights because they do not change the

“quantum of punishment attached to the crime.” Dobbert,

432 U.S. at 293–94 (citing Hopt v. Utah, 110 U.S. 574,

589–90 (1884)). This is so even if the procedural change

disadvantages the defendant. Id. at 293.

In Ring II, the Arizona Supreme Court held that Arizona’s

amended procedural statute did not violate the Ex Post Facto

Clause of the U.S. Constitution. In that case, the Arizona

high court consolidated the appeals of the thirty-one death-

row inmates who were unconstitutionally sentenced under the

state’s prior version of § 13-703. See Ring II, 65 P.3d at 925.

The court found two U.S. Supreme Court cases “particularly

instructive.” Id. at 927.

The first of these was Dobbert v. Florida, 432 U.S. 282

(1977). In that case Dobbert was accused of brutally

murdering his own children in 1971 and 1972. Under the law

in effect at the time, Florida required imposition of the death

penalty for capital crimes unless the jury recommended

mercy. The jury’s recommendation was binding on the

64 MCGILL V. SHINN

judge. Id. at 287–88. After Dobbert committed his crimes,

but before he could be tried, the U.S. Supreme Court struck

down Georgia’s death penalty statute in Furman v. Georgia,

408 U.S. 238 (1972). Weeks later the Florida Supreme Court,

citing Furman, held that Florida’s death penalty statute was

similarly unconstitutional. Dobbert, 432 U.S. at 288 (citing

Donaldson v. Sack, 265 So. 2d 499 (Fla. 1972)). Later that

same year, the Florida legislature amended its death penalty

statute to comply with Furman. The new statute provided

that once a defendant was found guilty of a capital felony, the

court must hold a separate hearing to consider aggravating

and mitigating evidence. The jury would make a

recommendation, which was not binding on the judge, and

the judge would issue written findings of fact if imposing a

death sentence. Id. at 290–92. Dobbert was tried under the

new statute. The jury recommended a life sentence, but the

trial court—under its authority under the revised Florida

statute—overruled the jury and sentenced Dobbert to death.

Id. at 287.

Dobbert argued that his rights under the Ex Post Facto

Clause were violated by the change in Florida law. Under the

Florida law in effect when he committed his crimes, the

jury’s recommendation of life would have been binding on

the trial judge; under the new law, Dobbert got the death

penalty. Dobbert raised two claims under the Ex Post Facto

Clause that are relevant here. First, he alleged that Florida

had altered the roles of the judge and jury and that he was

entitled to proceed under the prior law. The Court rejected

this argument. “Even though it may work to the disadvantage

of a defendant, a procedural change is not ex post facto.” Id.

at 293. The Court found that “the change in the [Florida]

statute was clearly procedural. The new statute simply

altered the methods employed in determining whether the

MCGILL V. SHINN 65

death penalty was to be imposed; there was no change in the

quantum of punishment attached to the crime.” Id. at 293–94.

The Court also took into account that “not only was the

change in the law procedural, it was ameliorative”—the

change was to deal with Furman—and it was not clear that

the new law was “more onerous than the prior law.” Id. at

294.

Dobbert also argued that because the statute in effect in

Florida when he murdered his children was unconstitutional,

“there was no death penalty ‘in effect’ in Florida.” Id. at 297.

The Court termed this argument “sophistic” and “highly

technical,” “mock[ing] the substance of the Ex Post Facto

Clause.” Id. For the Court, “[w]hether or not the old statute

would in the future, withstand constitutional attack, it clearly

indicated Florida’s view of the severity of murder and of the

degree of punishment which the legislature wished to impose

upon murderers.” Id.10 The statute’s “existence on the statute

books provided fair warning” to Dobbert. Id.; see also id.

at 303 (Burger, C.J., concurring) (“Petitioner was at least

constructively on notice that this penalty might indeed follow

his actions.”).

10

We note that the U.S. Supreme Court initially upheld the

constitutionality of Florida’s 1972 revised sentencing process, see Proffitt

v. Florida, 428 U.S. 242 (1976), but it later invalidated the procedure

under the Sixth Amendment, Hurst v. Florida, 577 U.S. 92, 98–99 (2016)

(citing Ring I, 536 U.S. at 597). Florida’s procedure was deficient

because it did not require the jury to make “specific factual findings with

regard to the existence of mitigating or aggravating circumstances[,] and

its recommendation [was] not binding on the trial judge.” Hurst, 577 U.S.

at 99 (citation omitted). Arizona’s amended sentencing procedure, on the

other hand, required the jury to make those crucial findings of fact and

makes the jury’s determination final. See Ariz. Rev. Stat. § 13-703(E)

(2002).

66 MCGILL V. SHINN

The second case the Arizona Supreme Court looked to

was Collins v. Youngblood, 497 U.S. 37 (1990). In Collins,

the defendant was convicted of aggravated sexual abuse. He

was sentenced to life and fined $10,000. Collins filed in state

court for a writ of habeas corpus on the grounds that the

statute did not authorize a fine, and thus his sentence was

void and he should be given a new trial. Before his habeas

petition was reviewed, the Texas legislature adopted a statute

allowing an appellate court to reform an improper sentence

assessing a fine not authorized by law. Id. at 39–40. The

Texas Court of Criminal Appeals ordered his fine deleted

from his sentence and refused his request for a new trial. The

U.S. Supreme Court held that the Texas statute did not run

afoul of the Ex Post Facto Clause: it “[did] not punish as a

crime an act previously committed, which was innocent when

done; nor make more burdensome the punishment for a

crime, after its commission.” Id. at 52.

Relying on Dobbert and Collins, the Arizona Supreme

Court thought it clear that “rights secured by the Sixth

Amendment jury trial right, the right at issue here, are

inherently procedural” and that “[t]he new sentencing statutes

alter the method used to determine whether the death penalty

will be imposed but make no change to the punishment

attached to first degree murder.” Ring II, 65 P.3d at 928. As

a consequence, Arizona’s new sentencing statute did not

violate the Ex Post Facto Clause of the U.S. Constitution. Id.

McGill’s case was not part of the cases consolidated in

Ring II because unlike those defendants, McGill was

sentenced under a constitutional version of Ariz. Rev. Stat.

§ 13-703. Nevertheless, the Arizona Supreme Court

reviewed his case separately and found that it was governed

by its decision in Ring II. McGill I, 140 P.3d at 945. McGill

MCGILL V. SHINN 67

argues that he is in a different position from the defendants in

Ring II. The defendants sentenced before Ring I had notice

of both the availability of the death penalty and the procedure

by which the sentence would be imposed, even though that

procedure was later held inconsistent with the Sixth

Amendment. McGill, on the other hand, claims he had only

half the puzzle, as § 13-703 had been invalidated by the U.S.

Supreme Court just three weeks before McGill committed his

crime. McGill claims that he was in limbo. According to

McGill, § 13-1105(C) put him on notice that “[f]irst degree

murder . . . [was] punishable by death . . . as provided by

section 13-703,” Ariz. Rev. Stat. § 13-1105 (2001), but there

was no procedure by which he could be tried and sentenced

to death until § 13-703 was re-implemented weeks after his

crime. It is on that basis that McGill argues there was no

functioning death penalty statute in place at the time he

committed murder.

Although we recognize the different position that McGill

is in, we are not persuaded that McGill is entitled to relief

under AEDPA. And we wish to be very clear about our role

here. On AEDPA review, we may not grant relief unless the

Arizona Supreme Court’s application of federal law was

flawed “beyond any possibility for fairminded disagreement.”

Richter, 562 U.S. at 103. Even if we thought the Arizona

Supreme Court’s conclusion was wrong under the Ex Post

Facto Clause as a matter of first impression, we could not

issue relief. Rather, we can only review the decision to

determine if it is an unreasonable application of Dobbert and

Collins.

As the Court held in Dobbert, the existence of § 13-

1105(C) when McGill murdered Perez was likewise an

“operative fact” that gave fair warning to McGill that Arizona

68 MCGILL V. SHINN

could seek the death penalty if he was convicted of first-

degree murder. 432 U.S. at 298. McGill was on full notice

that Arizona could punish him for murder with death or life

imprisonment. The fact that § 13-1105(C) cross-referenced

§ 13-703’s procedural requirements does not detract from

Arizona’s “view of the severity of murder” and “the degree

of punishment which the legislature wished to impose upon

murderers.” Dobbert, 432 U.S. at 297. Moreover, the 2002

amendments did not alter the pre-existing enumeration of

statutory aggravating factors that was contained in § 13-

703(G) (which was reclassified as § 13-703(F)). McGill thus

received “fair warning as to the degree of culpability which

the State ascribed to the act of murder.” Id. There was no

retroactive change in the penalty for his crime.

Furthermore, the Arizona Supreme Court reasonably

concluded in light of Dobbert that the amendments to § 13-

703 are plainly procedural, not substantive. Ring I did not

invalidate the death penalty in Arizona. It held that Arizona

could not confer on the judge the duty to find sufficient

aggravating factors necessary for the imposition of the death

penalty. Ring I, 536 U.S. at 609. Arizona’s change to § 13-

703 affected the allocation of responsibility between judge

and jury, and that makes it analogous to the change Florida

made to its system in Dobbert. See 432 U.S. at 293–94. And

because Arizona was responding to Ring I, its change was

“ameliorative,” just as Florida’s amendment responded to

Furman. Id. at 294. Arizona did not impose a penalty that

was previously unavailable, nor did the state criminalize

innocent conduct after the fact. The state “simply altered the

method[] employed in determining whether the death penalty

was to be imposed.” Id. at 293–94. As a consequence,

McGill’s substantial rights have not been affected. Such

procedural changes fall outside the protections of the Ex Post

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Facto Clause. Id. at 296–97; see Styers v. Ryan, 811 F.3d

292, 297 (9th Cir. 2015) (“The rule announced in Ring [I],

under which capital defendants are entitled to a jury

determination of any fact on which the legislature conditions

an increase in their maximum punishment . . . is a procedural

rule that applies to capital defendants on direct review.”

(cleaned up)).

Our dissenting colleague takes a different view of the

privilege or immunity against ex post facto laws. We have

three observations. First, although the dissent briefly refers

to AEDPA, Dissenting Op. at 80, 82, the dissent makes no

serious effort to engage with AEDPA’s standard. The dissent

cited only the general test for ex post facto inquiries, id.

at 79–80, conducted a de novo review for that test, id.

at 79–83, and pronounced the Arizona Supreme Court’s

decision unreasonable, id. at 80, 82. The Supreme Court has

previously reversed us for conducting precisely this kind of

analysis. Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560 (2018)

(per curiam) (“The Ninth Circuit essentially evaluated the

merits de novo, only tacking on a perfunctory statement at the

end of its analysis asserting that the state court’s decision was

unreasonable.”). Such analysis is “fundamentally

inconsistent with AEDPA.” Shinn v. Kayer, 141 S. Ct. 517,

523 (2020) (per curiam) (citing Beaudreaux, 138 S. Ct.

at 2560). Second, the Court has made clear that we are to

conduct AEDPA review of state court judgments, not at the

highest level of abstraction, but at the lowest. It is not

sufficient for purposes of AEDPA to cite a general rule;

rather, the Supreme Court must have “squarely addresse[d]”

the issue. Wright v. Van Patten, 552 U.S. 120, 125 (2008);

see Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“The

more general the rule, the more leeway [state] courts have in

reaching outcomes in case-by-case determinations.”). We

70 MCGILL V. SHINN

identified two cases—Collins and Dobbert, which were also

identified and addressed by the Arizona Supreme Court—as

the closest factually to McGill’s case. The dissent does not

really grapple with either case, but dismisses Collins and

Dobbert perfunctorily. Dissenting Op. at 82, 84. With all

respect, that is not AEDPA review.11

Third, the dissent’s analysis of the Ex Post Facto Clause

is interesting and novel—to be sure, not grounds for granting

habeas under AEDPA—but, we think, not sound. The

dissent’s principal point is that “McGill could not have been

sentenced to death for murder when he committed his crimes

because at that time there was no statute implementing the

death penalty in Arizona.” Dissenting Op. at 78 (emphasis

added); see also id. at 80 (“There was no law that permitted

McGill to be punished with a death sentence during the thirty-

eight days between Ring I and the re-enactment of § 13-

703.”); id. at 81 (“[McGill was] on notice that he could not be

sentenced to death for first-degree murder.”); id. at 84

11

The dissent states, for example, that “Here, the issue is whether the

change from no possibility of the death penalty to possibility of the death

penalty was procedural or substantive.” Dissenting Op. at 82. The best

answer to that question comes from Dobbert, in which the Court said that

a statute that “simply altered the methods employed in determining

whether the death penalty was to be imposed” was procedural because

there was “no change in the quantum of punishment attached to the

crime.” Dobbert, 432 U.S. at 293–94. The dissent ignores the Court’s

analysis.

The dissent’s argument that “By the time of McGill’s sentencing, the

Arizona legislature had increased the risk of a death sentence for conduct

that had already taken place,” Dissenting Op. at 84, has likewise been

answered by Dobbert. Dobbert argued that when he committed his crime,

“there was no death penalty ‘in effect’ in Florida.” Dobbert, 432 U.S.

at 297. The Court thought this argument “sophistic.” Id.

MCGILL V. SHINN 71

(“There was no risk that McGill would be sentenced to death

for his crimes at the time they were committed . . . .”). And

the dissent spins an interesting, creative counterfactual in

which the Arizona legislature delays for years in fixing the

Ring I problem. Dissenting Op. at 83. We are puzzled by

this analysis, because we are not aware of anything in Ex Post

Facto Clause jurisprudence that turns on whether, at the time

the crime was committed, the proper procedures are in place

to impose, at trial, the sentence of death that the substantive

statute then authorizes as a punishment for the conduct that

the defendant committed. McGill was plainly on notice that

his conduct was punishable by death when he murdered Perez

on July 13, 2002. The dissent’s whole case for issuing the

writ rests on the premise that, due to the declared invalidity

of Arizona’s capital sentencing procedure on the day he

committed his crime, McGill could not have received his

sentence if (in a remarkable and likely unconstitutional act of

very swift justice) his trial had taken place later that same

day. The dissent thus assumes that the protection of the Ex

Post Facto Clause extends to the particular procedures that

would be lawfully available to any sentencing conducted on

the date of the offense, but that view seems difficult to square

with Dobbert’s statement that “[e]ven though it may work to

the disadvantage of a defendant, a procedural change is not ex

post facto.” 432 U.S. at 293. Here, as in Dobbert, “[t]he new

statute simply altered the methods employed in determining

whether the death penalty was to be imposed; there was no

change in the quantum of punishment attached to the crime.”

Id. at 293–94.

We are not sure why the question of sentencing is the

relevant inquiry. The dissent claims we have “invented [a]

distinction between a law authorizing a ‘punishment’ and a

law authorizing a ‘sentence.’” Dissenting Op. at 83 n.4. The

72 MCGILL V. SHINN

dissent claims that there is no difference: “the punishment is

the sentence.” Id.12 The line Arizona has drawn between the

punishment prescribed for a crime and the procedure by

which one can be convicted and sentenced is one that has

been around for a long time. See Wayne R. LaFave, Jerold H.

Israel & Nancy J. King, Criminal Procedure 24 (4th ed.

2004) (“‘Legal procedure,’ Roscoe Pound long ago noted, ‘is

a means, not an end; it must be made subsidiary to the

substantive law as a means of making that law effective in

action.’”). The dissent’s argument marries the procedure and

the substantive law for Ex Post Facto purposes—it concludes

that because Arizona lacked a constitutional statutory scheme

for imposing the sentence, there was no death penalty.13

12

The dissent is playing fast and loose with its terms. Nothing in the

substantive law changed for McGill—his crime was defined as punishable

by death on the day he committed it and on the day he was sentenced. All

that changed was the process by which his sentence was to be determined,

and McGill was tried, convicted, and sentenced consistent with the U.S.

Constitution. That puts McGill’s case squarely within Dobbert: “not only

was the change in the law procedural, it was ameliorative” and it was

“[not] more onerous than the prior law.” Dobbert, 432 U.S. at 294. To

paraphrase the dissent, “the later penalty imposed [on McGill] was the

same penalty that could have been imposed at the time of [McGill’s]

offense.” Dissenting Op. at 84.

13

The dissent assumes that if the Arizona legislature had not

responded so promptly to Ring I, the Arizona courts could not have

complied with the dictates of the Sixth Amendment for death-eligible

defendants, consistent with Ring I. See Dissenting Op. at 83. What

principle of Arizona law would prevent Arizona courts from complying

with Ring I, even if the legislature had not amended the statute? The

dissent has made a huge assumption about how Arizona law works,

including state separation of powers principles. We are not sure why the

dissent gets to decide such matters.

MCGILL V. SHINN 73

The Supreme Court might well agree with our colleague

in the future, but on AEDPA review, we do not get to create

new ex post facto law and then issue habeas on that basis.

Edwards v. Vannoy, 141 S. Ct. 1547, 1554 (2021); Teague v.

Lane, 489 U.S. 288, 310 (1989) (plurality opinion).

***

We need not go so far as to decide that Arizona’s new

scheme is consistent with the Ex Post Facto Clause. We are

not called upon to predict whether the Supreme Court would

have upheld McGill’s conviction and sentence had it granted

certiorari review from the judgment of the Arizona Supreme

Court on direct appeal. We only decide that the Arizona

Supreme Court’s understanding of the Ex Post Facto Clause,

which it based on its review of Dobbert and Collins, is not

unreasonable.14 If we are to take seriously the Court’s

declaration that “an unreasonable application of federal law

is different from an incorrect application of federal law,”

Richter, 562 U.S. at 101 (citation omitted), we cannot say that

14

We note that the standard for granting the COA on this issue

requires only that we determine that “jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El I, 537 U.S. at 327. We are

fully satisfied of the fairmindedness of our dissenting colleague, and so we

have granted the COA.

In order to grant habeas, however, our colleague must be persuaded

that no “fairminded jurist could take a different view,” Kayer, 141 S. Ct.

at 525, that is, that the constitutional error was “well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement,” Richter, 562 U.S. at 103. Our colleague has not returned

the favor.

74 MCGILL V. SHINN

the Arizona Supreme Court’s decision was an unreasonable

one.

V. CONCLUSION

The judgment of the district court is AFFIRMED.

COLLINS, Circuit Judge, concurring:

I concur in Judge Bybee’s opinion, including its

conclusion that, under Browning v. Baker, 875 F.3d 444 (9th

Cir. 2017), the district court erred in limiting its grant of a

certificate of appealability (“COA”) to only one claim

concerning whether McGill’s trial counsel was ineffective at

the penalty phase. See Opin. at 16. Browning held that, in

deciding whether to grant a COA with respect to challenges

to the adequacy of counsel at a particular phase, a district

court should not “separat[e]” the ineffective assistance

“argument into individual ‘claims’ of [ineffective assistance]

corresponding to particular instances of [the attorney’s]

conduct.” 875 F.3d at 471. Rather, the ineffective assistance

“portion of the COA should [be] crafted at a higher level of

generality.” Id. We have construed Browning to require a

COA concerning an ineffective assistance claim to extend to

all other properly preserved challenges to counsel’s

effectiveness at the same phase. See White v. Ryan, 895 F.3d

641, 645 n.1 (9th Cir. 2018) (following Browning in holding

that, because “White has but a single claim regarding his right

to the effective assistance of counsel at the penalty phase of

resentencing,” the district court committed “error” by failing

to issue a COA covering additional portions of White’s

ineffective assistance claim concerning sentencing). Judge

MCGILL V. SHINN 75

Bybee’s opinion faithfully applies this precedent, and I join

it in full.

I write separately only to note that, on this point,

Browning seems to me to be plainly incorrect. Browning

based its holding on two premises: (1) under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

a COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2); and (2) because the underlying

constitutional right at issue—the effective assistance of

counsel—requires consideration of counsel’s performance “as

a whole,” all asserted errors of counsel at a particular phase

of the proceedings must be considered. 875 F.3d at 471

(emphasis omitted). The second premise is, I think, contrary

to the statute and to common sense.

Browning failed even to mention § 2253(c)(3), which

states that any COA that is issued “shall indicate which

specific issue or issues satisfy the showing required by

paragraph (2).” 28 U.S.C. § 2253(c)(3) (emphasis added).

This aspect of the COA process, although not jurisdictional

in the strict sense, “screens out issues unworthy of judicial

time and attention.” Gonzalez v. Thaler, 565 U.S. 134, 145

(2012) (emphasis added). The statute itself thus refutes

Browning’s suggestion that a COA must be granted with

respect to every single “issue” concerning alleged ineffective

assistance of counsel at a particular phase of the proceedings.

Under § 2253(c)(3), a COA must be limited to only those

particular issues relating to the alleged deprivation of

effective assistance of counsel that “reasonable jurists could

debate” or that are “adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84

(2000) (citation and internal quotation marks omitted); see

76 MCGILL V. SHINN

also Strickland v. Washington, 466 U.S. 668, 690 (1984) (“A

convicted defendant making a claim of ineffective assistance

must identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional

judgment.”).

More broadly, Browning’s in-for-a-penny-in-for-a-pound

approach to ineffective assistance claims is divorced from the

reality of habeas litigation. It is quite often the case—as it is

here—that habeas counsel themselves carve up the ineffective

assistance claim for a single phase of the proceeding into

multiple separate claims. McGill’s counsel thus separated the

alleged ineffective assistance of counsel at the penalty phase

into several different claims, with “Claim One” relating to

multiple closely related alleged deficiencies in developing

and presenting mitigating evidence and “Claim Two” relating

to the asserted failure to challenge the weight to be given to

the “prior serious offense aggravator.” I can see no reason in

law or logic why, if a COA is granted on Claim One, it must

also be granted on Claim Two. Even McGill did not see

these two points as raising the same claim—much less the

same “specific issue,” 28 U.S.C. § 2253(c)(3)—and nothing

in § 2253(c) says that if a COA is granted for one issue, it

must also be granted for the other. On the contrary, McGill’s

own division of his attack on the effectiveness of his counsel

into multiple separate claims reflects the common-sense

notion that these separate aspects of counsel’s behavior are

sufficiently distinct that they may be addressed and

considered separately.

Moreover, the procedural rules governing habeas

litigation may require separating out the distinct challenges

to trial counsel’s performance. For example, an ineffective

assistance claim based on a particular aspect of trial counsel’s

MCGILL V. SHINN 77

conduct may be procedurally defaulted if it was not presented

to the state courts, meaning that an ineffective assistance

claim based on that aspect may be unable to proceed in

federal court. See, e.g., Landrum v. Mitchell, 625 F.3d 905,

918–19 (6th Cir. 2010) (holding that, “[a]lthough Landrum

did raise an ineffective assistance of trial counsel claim in his

[state] post-conviction petition, he did not include the

allegation about introducing [a particular witness’s]

testimony in the guilt phase” and that claim was therefore

procedurally defaulted). Indeed, a COA cannot issue with

respect to a procedurally defaulted claim unless the petitioner

makes a sufficient showing “directed at the underlying

constitutional claims and . . . directed at the district court’s

procedural holding.” Slack, 529 U.S. at 484–85 (emphasis

added). That further confirms that claims concerning distinct

aspects of a counsel’s alleged ineffective assistance may

warrant separate consideration for COA purposes.1 See, e.g.,

Roberts v. Dretke, 356 F.3d 632, 641 & n.6 (5th Cir. 2004)

(granting a COA only with respect to two particular aspects

of the petitioner’s ineffective assistance claims, while

denying it as to two others, one of which was procedurally

defaulted).

1

I do not mean to suggest, however, that Browning would require

COA expansion in such a scenario, in direct contravention of Slack.

Browning did not address the question of whether a COA should be

expanded to cover other ineffective assistance claims that were

procedurally defaulted, and its rule therefore applies only to additional

ineffective assistance claims involving the same phase that have not been

procedurally defaulted. Here, McGill’s Claim Two (which is the claim

that is the beneficiary of Browning’s rule) was not procedurally defaulted,

and so Slack’s rule for COAs involving procedurally defaulted claims

provides no obstacle to applying Browning here.

78 MCGILL V. SHINN

I am not entirely optimistic that Browning’s error will

ever be fixed, because its only effect is to create unnecessary

work, rather than to change the outcome. Any case in which

the Browning rule makes a difference—i.e., a case in which,

but for Browning, a COA would have been denied by the

relevant judges of this court as to an additional ineffective

assistance claim—is necessarily one in which that additional

claim will fail on the merits under AEDPA’s standards after

the COA is wrongly granted. Indeed, I would have denied a

COA as to Claim Two here, but for that very reason I

obviously agree with Judge Bybee’s conclusion, in his

opinion, that Claim Two fails on the merits under AEDPA.

But because Browning’s rule is clearly wrong, defeats the

screening purpose of § 2253(c)(3), and creates unnecessary

work and delay, I would hope that, perhaps in the next en

banc case in which that rule has played a role, we will take

the time to revisit it.

M. SMITH, Circuit Judge, concurring in part and dissenting

in part:

LeRoy McGill could not have been sentenced to death for

murder when he committed his crimes because at that time

there was no statute implementing the death penalty in

Arizona. Yet because the Arizona legislature passed a law

thirty-eight days later that purported to allow his execution,

McGill now sits on death row. For the reasons hereafter

noted, I believe that McGill’s death sentence is

unconstitutional. I respectfully dissent.

MCGILL V. SHINN 79

I

Up until June 2002, imposition of the death penalty in

Arizona was governed by Arizona Revised Statutes §§ 13-

1105 and 13-703 (2001). As the majority notes, § 13-1105

stated, “First degree murder . . . is punishable by death or life

imprisonment as provided by § 13-703.” Ariz. Rev. Stat.

§ 13-1105 (2001). The part of § 13-703 that permitted the

death penalty required the judge in a criminal case to

determine whether aggravating factors for a particular crime

warranted execution. See id. § 13-703(C) (2001). But on

June 24, 2002, § 13-703 was struck down as unconstitutional

in Ring v. Arizona (Ring I), 536 U.S. 584, 609 (2002), when

the Supreme Court held that the jury (not the judge) must

determine whether aggravating factors exist to impose the

death penalty. Thirty-eight days later, on August 1, 2002, the

Arizona legislature enacted a new capital punishment statute

that passed constitutional muster. On July 13, 2002, during

the time period between Ring I and re-enactment of § 13-703,

McGill committed the murder underlying this appeal, for

which he was sentenced to death.

II

To determine whether a criminal law is ex post facto, the

Supreme Court has instructed us to apply a three-prong test.

“[F]irst, the law must be retrospective, that is, it must apply

to events occurring before its enactment.” Miller v. Florida,

482 U.S. 423, 430 (1987) (internal quotation marks omitted).

Second, the law “must disadvantage the offender affected by

it.” Id. (internal quotation marks omitted). Finally, “no ex

post facto violation occurs if a change does not alter

‘substantial personal rights,’ but merely changes ‘modes of

procedure which do not affect matters of substance.’” Id.

80 MCGILL V. SHINN

(quoting Dobbert v. Florida, 432 U.S. 282, 293 (1977)).

Ultimately, “[t]he touchstone of [the Supreme] Court’s

inquiry is whether a given change in law presents a ‘sufficient

risk of increasing the measure of punishment attached to the

covered crimes.’” Peugh v. United States, 569 U.S. 530, 539

(2013) (quoting Garner v. Jones, 529 U.S. 244, 250 (2000))

(some internal quotation marks omitted).

McGill’s claim plainly satisfies the first two prongs of the

ex post facto test. The remaining question is whether the re-

enactment of the death penalty via § 13-703 altered McGill’s

“substantial personal rights,” or whether it was merely a

procedural change. There was no law that permitted McGill

to be punished with a death sentence during the thirty-eight

days between Ring I and the re-enactment of § 13-703.1 I

therefore believe that a retroactive death sentence for crimes

committed during this period is unconstitutional.

Furthermore, the Arizona Supreme Court’s decision to the

contrary was an unreasonable application of clearly

1

The State conceded multiple times during oral argument that if the

Arizona legislature had never re-enacted § 13-703, McGill could not have

been sentenced to death. This quickly disposes of the majority’s

speculation that the Arizona courts could have, on their own, imposed the

death penalty in compliance with Ring I absent the legislature’s revision

of § 13-703. Slip op. at 72 n.13. Moreover, the Supreme Court has made

clear that the death penalty cannot be imposed without an implementing

statute, since “Furman mandates that where discretion is afforded a

sentencing body on a matter so grave as the determination of whether a

human life should be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of wholly arbitrary and

capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion

of Stewart, Powell, and Stevens, JJ.). And if all that were not enough,

§ 13-1105 allows the death penalty only “as provided by” § 13-703.

Clearly, the plain text of the statute would not permit a court to impose the

death penalty outside of the requirements of § 13-703.

MCGILL V. SHINN 81

established Supreme Court case law. See 28 U.S.C.

§ 2254(d)(1).

The State argued, and the majority agrees, that § 13-1105

gave McGill notice of the possibility of a death sentence even

after the Supreme Court struck § 13-703 from the books. I

believe the opposite is true. After the Supreme Court

prohibited application of the portion of § 13-703 that allowed

the judge to make factual findings concerning aggravating

factors, a look at § 13-1105 would actually put a potential

offender on notice that he could not be sentenced to death for

first-degree murder. If, as § 13-1105 says, “[f]irst degree

murder . . . is punishable by death or life imprisonment as

provided by § 13-703,” and the death penalty prescribed in

§ 13-703 is a legal nullity, the statute is crystal clear that life

imprisonment alone is the punishment for first degree murder

committed during the period between Ring I and the

reenactment of § 13-703.

In reviewing McGill’s ex post facto claim, the Arizona

Supreme Court gave it one sentence: “We rejected this

argument in State v. Ring [(Ring II)], 204 Ariz. 534, 547 ¶ 23,

65 P.3d 915, 928 (2003).” State v. McGill, 140 P.3d 930, 945

(Ariz. 2006). But the Arizona Supreme Court did not, in fact,

reject McGill’s argument in Ring II. Instead, in Ring II, the

Arizona Supreme Court considered whether the ex post facto

clause prohibited the state from resentencing defendants

sentenced under the old (unconstitutional) death penalty

statute to new death sentences under the new death penalty

statute. 65 P.3d 915, 926 (Ariz. 2003). The court held that

“[t]he new sentencing statutes do not place the defendants in

jeopardy of any greater punishment than that already imposed

under the superseded statutes. Accordingly, applying the new

sentencing statutes does not violate the federal or state Ex

82 MCGILL V. SHINN

Post Facto Clause[s].” Id. at 928 (emphasis added). Ring II

examined whether the change from the old § 13-703 to the

new § 13-703 was procedural or substantive. That is not the

question here. Here, the issue is whether the change from no

possibility of the death penalty to possibility of the death

penalty was procedural or substantive. It is a very different

question from the one answered in Ring II and, thus, has a

very different answer.

For the same reason, the cases that the majority relies

upon (the same cases that Ring II relies upon) simply do not

apply. Dobbert v. Florida, 432 U.S. at 291, and Collins v.

Youngblood, 497 U.S. 37, 38 (1990), addressed situations in

which a law in effect at the time of the crime permitted the

punishment that was eventually imposed (in Dobbert, the

death penalty, and in Collins, a sentence of imprisonment

without a monetary fine). That is not the situation here, and

I have just explained why the distinction is relevant. (In fact,

one might say that the most important distinction in

evaluating these ex post facto claims is whether a law in

effect at the time of the offense punished that offense.)

Treating this case as if it is like Dobbert and Collins was

precisely the unreasonable application of Supreme Court

precedent that would lead me to grant relief under AEDPA’s

deferential standard of review.2

2

I believe my colleagues misapply AEDPA’s standard of review. I

do not think that my colleagues’ opinion that the Arizona court acted

reasonably is itself unreasonable. See Slip Op. at 73 n.14. Where I differ

with my colleagues is that they “need not go so far as to decide that

Arizona’s” decision was “consistent with the Ex Post Facto Clause,” Slip

Op. at 73, while I believe that the state court decision was inconsistent

with the Ex Post Facto Clause—and unreasonably so.

MCGILL V. SHINN 83

A hypothetical illustrates the error of the majority’s

position that McGill is not entitled to relief. Between 2003

and 2006, Arizona courts sentenced nineteen individuals to

death.3 But imagine that, rather than thirty-eight days, the

Arizona legislature waited five years after Ring I to re-enact

a death penalty implementation statute. Without re-

enactment of § 13-703, those nineteen people—everyone

acknowledges—would have been sentenced to life in prison.

If the Arizona legislature had not passed a new version of

§ 13-703 until 2006, would the State then be able to

retroactively execute the nineteen individuals who had been

sentenced to life in prison for murder convictions during

those five years? What if the legislature had taken fifteen

years to re-enact § 13-703, or thirty? The Ex Post Facto

Clause provides that “No State shall . . . pass any . . . ex post

facto Law.” U.S. CONST. art. I, § 10, cl. 1. The Constitution

does not state: “No State shall pass any ex post facto Law,

unless such a law is passed within thirty-eight days.”

Lengthening the gap between valid death penalty statutes

shows the unworkability of the standard that the majority

endorses and imputes a “reasonableness” inquiry into the Ex

Post Facto Clause when the text mandates a bright line rule.4

3

See https://corrections.az.gov/public-resources/death-row.

4

My colleagues in the majority make much of an invented distinction

between a law authorizing a “punishment” and a law authorizing a

“sentence.” Slip Op. at 70–72. The plain text of § 13-1105 puts this

argument to bed. That section states that first degree murder “is

punishable by death” “as provided by § 13-703.” Section 13-1105 is

dependent on § 13-703 alone, which provides for the imposition of a death

sentence. Thus, the punishment is the sentence. The operative fact for

McGill’s claim is that at the time of his offense, no law allowed him to be

punished with a death sentence.

84 MCGILL V. SHINN

My colleagues in the majority do quite a bit more to

defend the Arizona Supreme Court’s ruling on McGill’s ex

post facto claim than the Arizona Supreme Court did itself

(though the majority stops short of endorsing it as correct).

However, even the majority’s reasoning requires incorrectly

assuming that the analysis in Ring II applies with equal force

to McGill’s situation. That assumption contradicts Supreme

Court precedent requiring courts to examine “whether a given

change in law presents a ‘sufficient risk of increasing the

measure of punishment attached to the covered crimes.’”

Peugh, 569 at 540 (quoting Garner, 529 at 250) (some

internal quotation marks omitted). There was no risk that

McGill would be sentenced to death for his crimes at the time

they were committed, as such a sentence would run afoul of

Gregg. See supra, n.1. By the time of McGill’s sentencing,

the Arizona legislature had increased the risk of a death

sentence for conduct that had already taken place. Thus,

McGill could not constitutionally be sentenced to death. The

state court failed to reasonably apply Peugh and the three-

prong test articulated in Miller when evaluating McGill’s

federal ex post facto claim. Instead, the state court relied on

Dobbert and Collins, cases in which the later penalty imposed

was the same penalty that could have been imposed at the

time of the offense. That makes Dobbert and Collins not just

different from McGill’s case but different in the one outcome-

determinative way. Therefore, I believe McGill is entitled to

habeas relief.

III

I concur in my colleagues’ decision resolving McGill’s

challenges to the guilt phase of his trial. However, I would

grant McGill’s petition for the writ of habeas corpus with

respect to the penalty phase because I believe sentencing

MCGILL V. SHINN 85

McGill to death is unconstitutional pursuant to the Ex Post

Facto Clause. I respectfully dissent.