Petition for Writ of Certiorari — Richard Harley Greenway, Petitioner v. Charles L. Ryan, Director, Arizona Department of Corrections
Supreme Court briefMar 30, 2018
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IN THE SUPREME COURT OF THE UNITED STATES
Richard Harley Greenway, Petitioner,
vs.
Charles L. Ryan, Director of the Arizona Department of Corrections, et al.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
JON M. SANDS
Federal Public Defender
District of Arizona
Therese Michelle Day
Counsel of Record
Assistant Federal Public Defender
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
(602) 382-2816 (voice)
(602) 889-3960 (facsimile)
therese_day@fd.org
Counsel for Petitioner Greenway
**CAPITAL CASE**
QUESTION PRESENTED
Richard Greenway is an indigent Arizona prisoner who was sentenced to death
on June 15, 1989, for murders committed in March 1988. During the penalty phase
of his trial, Mr. Greenway presented uncontested witness testimony, demonstrating
that he had low intelligence, immaturity, and an inability to respond appropriately
to stressful situations. However, neither the sentencing court nor the Arizona
Supreme Court, as part of its independent review of his death sentence on direct
appeal, considered this nonstatutory mitigating evidence because under Arizona law
at the time, this evidence only could be considered mitigating if the defendant first
established that it was causally connected to the crimes.
In McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), cert. denied,
_____US. _____ (2016), the Ninth Circuit, sitting en banc, held that for a period of a
little more than fifteen years, beginning in the late 1980s, the Arizona Supreme Court
consistently articulated and applied an impermissible causal nexus test to
nonstatutory mitigating evidence in violation of Eddings v. Oklahoma, 455 U.S. 104
(1982), “in accordance with its strong view of stare decisis.” McKinney, 813 F.3d at
803. The court reasoned that because the Arizona state courts consistently
articulated and applied this unconstitutional nexus test, the presumption in federal
habeas cases pursuant to Woodford v. Viscotti, 537 U.S. 19, 24 (2002), that the state
courts know and follow federal law, was rebutted where it was clear “based on its own
words, that the Arizona Supreme Court did not ‘know and follow’ federal law” during
this relevant time period. McKinney, 813 F.3d at 803-04. The court concluded that
in a given case where the language of the state court requires mitigating evidence to
be causally connected to the crime, and where the Arizona Supreme Court cites to the
causal nexus test and to Arizona case law applying this causal nexus test to exclude
mitigating evidence, it has, as a matter of state law, unreasonably applied clearly
established Supreme Court law. Id. at 821.
The question presented is:
(1) Did the Ninth Circuit panel decide an important federal question in
a way that conflicts with this Court’s Eighth and Fourteenth
Amendment jurisprudence where it found the Arizona Supreme
Court did not unreasonably apply Eddings v. Oklahoma when it held
that Mr. Greenway’s nonstatutory mitigating evidence was not
relevant to its sentencing decision in the absence of a causal
connection between his proffered mitigating evidence and the crime?
i
LIST OF PARTIES TO THE PROCEEDING
The parties to the proceeding are listed in the caption.
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR WRIT OF CERTIORARI ................................................................... 1
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2
STATEMENT OF THE CASE ....................................................................................... 3
The Trial ..................................................................................................................... 3
The Direct Appeal ...................................................................................................... 6
Federal Court Review ................................................................................................ 8
REASONS FOR GRANTING THE WRIT .................................................................. 11
I. The Arizona Supreme Court’s Exclusion of Relevant Mitigating Evidence
from the Sentencing Calculus Violated Mr. Greenway’s Eighth and Fourteenth
Amendment Rights and was Contrary to Clearly Established Law. ................. 11
A.
The Arizona Supreme Court failed to consider relevant mitigating
evidence because it found that Mr. Greenway failed to establish this evidence
was causally connected to the crimes. .............................................................. 11
B.
Mr. Greenway was prejudiced when the Arizona Supreme Court
excluded relevant mitigating evidence from its sentencing decision because it
found it lacked a causal connection to the crime. ............................................ 17
C.
The Ninth Circuit’s panel decision conflicts with this Court’s case law,
and cannot be reconciled with other Ninth Circuit opinions addressing this
issue. .................................................................................................................. 19
CONCLUSION............................................................................................................. 25
CERTIFICATE OF SERVICE
APPENDIX
iii
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
TABLE OF CONTENTS
App. A
Order Denying Rehearing and Rehearing En Banc, Greenway v. Ryan,
No. 14-15309 (9th Cir. Nov. 1, 2017), ECF No. 88
App. B
Opinion, Greenway v. Ryan, No. 14-15309 (9th Cir. Aug. 8, 2017), ECF
No. 83-1
App. C
Opinion, Greenway v. Ryan, No. 14-15309 (9th Cir. May 11, 2017), ECF
No. 74-1
App. D
Memorandum of Decision and Order, Greenway v. Ryan, No. CV-98-25TUC-RCC (D. Ariz. Nov. 27, 2013), ECF No. 186
App. E
Opinion, Greenway v. Schriro, No. 07-99021 (9th Cir. July 28, 2011),
ECF No. 78-1
App. F
Memorandum of Decision and Order, Greenway v. Schriro, No. CV-9825-TUC-RCC (D. Ariz. Sept. 25, 2007), ECF No. 149
App. G
Opinion, State v. Greenway, No. CR-89-0199-AP (Ariz. Dec. 3, 1991)
App. H
Arizona Capital
IMPAIRMENT
Sentencing
iv
Guide:
A.R.S.
§
13-703(G)(1)-
TABLE OF AUTHORITIES
Federal Cases
Atkins v. Virginia, 536 U.S. 304 (2002) .............................................................. 12, 19
Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005) .................................................... 16
Brecht v. Abrahamson, 507 U.S. 619 (1993) ................................................. 17, 18, 19
Eddings v. Oklahoma, 455 U.S. 104 (1982) ....................................................... passim
Greenway v. Ryan, 856 F.3d 676 (9th Cir. 2017) ........................................................ 1
Greenway v. Ryan, 866 F.3d 1094 (9th Cir. 2017) ...................................................... 1
Greenway v. Ryan, No. CV-98-25-TUC-RCC, 2013 U.S. Dist. LEXIS 168771 (D. Ariz.
Nov. 27, 2013) .............................................................................................................. 1
Greenway v. Schriro, 653 F.3d 790 (9th Cir. 2011) .................................................... 2
Greenway v. Schriro, No. CV-98-25-TUC-RCC, 2007 U.S. Dist. LEXIS 74545 (D.
Ariz. Sept. 25, 2007) ..................................................................................................... 2
Kotteakos v. United States, 328 U.S. 750 (1946)................................................... 18, 19
Lockett v. Ohio, 438 U.S. 586 (1978) ............................................................. 12, 19, 20
Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011) ........................................................... 13
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) ............................................... passim
O’Neal v. McAninch, 513 U.S. 432 (1995) ................................................................... 17
Penry v. Lynaugh, 492 U.S. 302 (1989) ............................................................... 12, 18
Schad v. Ryan, 606 F. 3d 1022 (9th Cir. 2010) ............................................................. 9
Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011) ............................................................ 10
Skipper v. South Carolina, 476 U.S. 1 (1986) ............................................................. 19
Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008) ................................................ 22, 24
Tennard v. Dretke, 542 U.S. 274 (2004) ........................................................ 14, 15, 19
Woodford v. Visciotti, 537 U.S. 19 (2002) ............................................................... i, 20
Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................... 12
Ylst v. Nunnemaker, 501 U.S. 797 (1991) ........................................................... 13, 16
v
Federal Statutes and Constitutional Provisions
28 U.S.C. § 1254 (2012) ............................................................................................... 2
28 U.S.C. § 2254 (2012) ......................................................................................... 3, 10
State Cases
State v. Anderson, 111 P.3d 369 (Ariz. 2005) ...................................................... 14, 15
State v. Brewer, 826 P.2d 783 (Ariz. 1992) ........................................................... 14, 15
State v. Bilke, 781 P.2d 28 (Ariz.1989) ...................................................................... 24
State v. Bishop, 622 P.2d 478 (Ariz. 1980) .............................................................. 7, 8
State v. Djerf, 959 P.2d 1274 (Ariz. 1998) ................................................................... 14
State v. Greenway, 823 P.2d 22 (Ariz. 1991) ........................................................... 2, 9
State v. Hoskins, 14 P.3d 997 (Ariz. 2000) .......................................................... 14, 16
State v. Jimenez, 799 P.2d 785 (Ariz. 1990) ........................................................passim
State v. Jones, 917 P.2d 200 (Ariz. 1996) .................................................................. 15
State v. Kayer, 984 P.2d 31 (Ariz. 1999) ............................................................. 14, 15
State v. Leslie, 708 P.2d 719 (Ariz. 1985) .................................................................... 6,
State v. McKinney, 917 P.2d 1214 (Ariz. 1996) ......................................................... 22
State v. Ross, 886 P.2d 1354 (Ariz. 1994)........................................................ 14, 22, 23
State v. Styers, 865 P.2d 765 (Ariz. 1993) ........................................................... 23, 24
State v. Vickers, 633 P.2d 315 (Ariz. 1981) ................................................................. 6
State v. Wallace, 773 P.2d 983 (Ariz. 1989) ................................................................ 14
State Statutes
Ariz. Rev. Stat. § 13-703 (LexisNexis 2018) ........................................................ 7, 23
Ariz. Rev. Stat. § 13-753 (LexisNexis 2018) ............................................................. 18
Ariz. Rev. Stat. § 13-755 (LexisNexis) ..................................................................... 6-7
Other
U.S. Const. amend. VIII .............................................................................................. 2
U.S. Const. amend. XIV ............................................................................................... 3
vi
PETITION FOR WRIT OF CERTIORARI
Petitioner Richard Harley Greenway respectfully petitions this Court for a writ
of certiorari to review the judgment of the United States Court of Appeals for the
Ninth Circuit (hereinafter “Ninth Circuit”), affirming the denial of his petition for a
writ of habeas corpus in this death penalty case, and specifically denying Mr.
Greenway’s claim that the Arizona state courts applied an unconstitutional causal
nexus requirement to his evidence of nonstatutory mitigating evidence in violation of
Eddings, 455 U.S. 104.
OPINIONS BELOW
The order of the Ninth Circuit denying panel rehearing and rehearing en banc
is attached hereto as Appendix A. The per curiam decision of the Ninth Circuit
denying relief pursuant to McKinney, 813 F.3d 798, is reported at Greenway v. Ryan,
866 F.3d 1094 (9th Cir. 2017). A copy of this opinion is attached hereto as Appendix
B. The opinion of the Ninth Circuit affirming the district court’s denial of Mr.
Greenway’s petition for writ of habeas corpus, along with the concurring opinion, is
reported at Greenway v. Ryan, 856 F.3d 676 (9th Cir. 2017), and is attached hereto
as Appendix C. The memorandum of decision and order of the district court on the
remanded claims of ineffective assistance of trial and appellate counsel is reported at
2013 U.S. Dist. LEXIS 168771, and is attached hereto at Appendix D. The opinion of
the Ninth Circuit affirming the district court’s denial of Mr. Greenway’s petition for
1
writ of habeas corpus, in part, and vacating and remanding, in part, is reported at
Greenway v. Schriro, 653 F.3d 790 (9th Cir. 2011), and is attached hereto as Appendix
E.
The memorandum of decision and order of the district court denying Mr.
Greenway’s federal habeas petition is reported at 2007 U.S. Dist. LEXIS 74545, and
is attached hereto as Appendix F.
The opinion of the Arizona Supreme Court
affirming Mr. Greenway’s conviction is reported at State v. Greenway, 823 P.2d 22
(Ariz. 1991), and is attached hereto as Appendix G.
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Ninth Circuit affirmed the district
court’s denial of Mr. Greenway’s petition for writ of habeas corpus in an opinion dated
May 11, 2017, denied relief on the supplemental McKinney matter in a per curiam
opinion dated August 8, 2017, and subsequently denied Mr. Greenway’s petition for
panel rehearing or rehearing en banc in an order dated November 1, 2017. On
January 23, 2018, Justice Kennedy extended the time within which to file this
petition for writ of certiorari to and including March 30, 2018. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Eighth Amendment to the United States Constitution provides, “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII.
2
The Fourteenth Amendment to the United States Constitution provides, in
relevant part, “No State shall . . . deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV.
The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)
provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
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.
STATEMENT OF THE CASE
Mr. Greenway is an indigent Arizona prisoner who was sentenced to death on
June 15, 1989, for murders committed in March 1988.1
The Trial
During the penalty phase of his trial, Mr. Greenway presented uncontested
witness testimony, demonstrating that he had low intelligence, immaturity, and an
Christopher Lincoln, Mr. Greenway’s co-defendant, was sentenced to two life
sentences and was released from custody in September of 2016.
3
1
inability to respond appropriately to stressful situations. Family members and one
childhood friend described Mr. Greenway as a “very slow learner” who had trouble
reading and comprehending. (ER 918-919, 935, 937, 939.)2 He was never seen doing
homework or reading books (ER 693, 919), only completed the sixth grade, and was
diagnosed with a learning disability that prevented him from comprehending (ER
935, 938). He was unable to fill out employment applications by himself and on one
occasion could not complete a simple test that accompanied a job application at
Target.
(ER 693-694.)
He also had difficulty following simple instructions,
performing simple tasks, and required close supervision. (ER 705-706, 918-919.) He
was described by family and friends as immature for his age. (ER 693, 709.) He
worked as a dishwasher and a grill cook and was happy doing these menial jobs
requiring simple tasks even though they only paid minimum wage. (ER 695, 844.)
Expert testimony revealed that Mr. Greenway had a full-scale I.Q. score of 72,
which meant that he was at a level of borderline functioning. (ER 876-877.) His
performance on other tests indicated that he was emotionally functioning at the level
of a nine- to twelve-year-old child, rather than as a twenty-year-old adult, and
exhibited “generalized immaturity.” (ER 881-883.) He was mentally functioning at
the level of an eleven-year-old and had poor judgment. (ER 885-886.) His social
2 “ER” references the excerpts of record from Greenway v. Schriro, Case No. 07-99021,
ECF No. 48 (9th Cir. Aug. 31, 2009).
4
immaturity was even more profound. (ER 888-889.) His statement to the police
demonstrated tell-tale indications of his limited mental and emotional capacities; it
“appeared to be an attempt to present a level of maturity and comprehensiveness and
specificity that very few people, regardless of intelligence or social maturity, actually
possess.” (ER 735-736.) While he was able to use words and phrases he had picked
up elsewhere that made him sound smarter than he was, he did not understand the
meaning of them. (ER 736-737.) Additionally, when he was told that he was under
arrest, he responded in a child-like fashion “that he is tired and would like to go
home.” (ER 736.) He then asked, “Are you going to tell my sister?” (ER 736.)
Mr. Greenway also submitted two sentencing memoranda in which he argued
that his age, both chronological as well as emotional and mental, “is a mitigating
circumstance of great import weighing heavily against the imposition of death.” (ER
665-666.)
It was noted that “because of a low I.Q. and lack of socialization,
[Greenway] was an immature individual operating as an eleven year old.” (ER 666.)
Mr. Greenway argued that because of his youth and immaturity he should be given
leniency as he could not appreciate the severity or wrongfulness of his conduct and
was not mature enough to reflect upon his actions. (ER 668.) He also pointed out
that as a nineteen-year-old, if sentenced to death, he would be the “second youngest
person on death row.” (ER 675.)
The trial court found that Mr. Greenway had proven the statutory mitigating
circumstance of age of the defendant, noting that “[a]t the time of the killings [he]
5
was nineteen years old, only one year into adulthood.” (ER 219.) Then, without
mentioning any other specific mitigating evidence,3 the court stated that it “ha[d]
considered all other mitigating factors, those presented at the aggravation-mitigation
hearing, and also those which have been submitted to the Court in the sentencing
memorandum and any other matters of record.” (ER 219-220.) The court found, “In
looking at the mitigating factor of the age of the Defendant, the Court finds that the
Defendant’s actions, evidence of brutality which far outweighs his chronological,
emotional and mental age, and the Court finds that there are no other mitigating
factors sufficiently substantial to call for leniency.”
(ER 220.)
The court then
sentenced Mr. Greenway to death by lethal gas. (ER 220.)
The Direct Appeal
At the time of Mr. Greenway’s direct appeal, the Arizona Supreme Court
conducted an independent review of a trial court’s findings of aggravation and
mitigation, and the propriety of the imposition of a death sentence. See A.R.S. § 13-
3 At the time of Mr. Greenway’s sentencing, trial courts in Arizona often did not
discuss or list the mitigating factors presented by a defendant during sentencing or
in the special verdict. This practice was criticized in State v. Leslie, 708 P.2d 719, 731
(Ariz. 1985), a decision that issued four years prior to Mr. Greenway’s sentencing. In
Leslie, the Arizona Supreme Court found that the better practice was for the trial
court “to place, on the record, a list of all factors offered by a defendant in mitigation
and then explain [its] reasons for accepting or rejecting them.” Id. The court
recognized that pursuant to State v. Vickers, 633 P.2d 315, 325 (Ariz. 1981), these
findings do not have to be detailed, but found that enough information needs to be in
the record so that the reviewing court can be sure that all factors have been
considered. Id.
6
755.
In conducting its independent reweighing of aggravating and mitigating
circumstances in Mr. Greenway’s case, the Arizona Supreme Court addressed the
sentencing court’s findings concerning Mr. Greenway’s mitigating evidence in two
separate sections. Under subsection 4(a), the court found: “Defendant presented one
statutory mitigating factor, A.R.S. § 13-703(G)(5), age, and numerous nonstatutory
mitigating factors. The trial court concluded that defendant’s age, 19 at the time of
the murders, was the only mitigating factor. We agree with the trial court.” App. G32.
Having found that the only statutory mitigating circumstance was Mr.
Greenway’s age, the court then went on to discuss Mr. Greenway’s low I.Q. under a
separate subsection, 4(b). App. G-32–34. In assessing whether Mr. Greenway’s low
I.Q. constituted mitigating evidence, the Arizona Supreme Court found that
“Defendant’s own expert testified that [he] was borderline functional, and not
mentally retarded.” App. G-33. The court went on to explain that it could not “accept
defendant’s argument that, because he was inept at committing this crime and lacked
criminal sophistication, his sentence should be reduced.” App. G-33. The court ruled
that it agreed with the trial court that Mr. Greenway’s borderline I.Q. “was neither
significant enough to qualify as a mitigating factor, nor sufficiently substantial to call
for leniency.” App. G-33. (emphasis added). The court supported these statements
with a citation to the case State v. Bishop, 622 P.2d 478 (1980), App. G-34, which
appeared to exclude evidence of below average intelligence because there was “no
7
indication that his level of intelligence was of any consequence in being a factor in
causing the death of the victim.” Bishop, 622 P.2d at 482.
The court then distinguished Mr. Greenway’s case from that of State v.
Jimenez, 799 P.2d 785 (Ariz. 1990), “where low I.Q. was at issue as a mitigating
factor.” App. G-34. The court found, “Although the defendants in both Jimenez and
the instant case registered comparable I.Q.s and ages, the defendant in Jimenez
offered substantial testimony to establish that he also suffered from hallucinations
and delusions which compelled him to commit the murder.”
App. G-34 (citing
Jimenez, 799 P.2d at 797-801) (emphasis added). The court explained that unlike
Jimenez, Mr. Greenway limited his evidence about his mental condition to his low
I.Q. and “offered no testimony to establish he suffered from hallucinations or
delusions at the time he committed the murder.” App. G-34. (emphasis added).
Federal Court Review
The federal district court rejected Mr. Greenway’s claim that the sentencing
judge and state reviewing court failed to consider and give effect to compelling
mitigating evidence of low intelligence, emotional immaturity, and inability to
comprehend or respond appropriately to stressful situations because he failed to
establish a causal nexus between this mitigating evidence and the crimes for which
he was convicted. App. F-43–45. The district court found that “the trial court carried
out its constitutional obligation to consider all relevant mitigation offered by [Mr.
8
Greenway]” because the state court indicated that it had considered all mitigating
factors submitted during the penalty phase, as well as in defense counsel’s sentencing
memoranda. App. F-44–45. The district court also found that the Arizona Supreme
Court independently reviewed the mitigation proffered by Greenway and “reviewed
the record for further evidence of mitigation . . . and found none.” App. F-45.
In
reaching this conclusion, the district court relied upon the Arizona Supreme Court’s
opinion, which stated that “defendant’s I.Q. of 72, which places him in a borderline
functioning category, was neither significant enough to qualify as a mitigating factor,
nor sufficiently substantial to call for leniency.” App. F-43 (emphasis added).
On appeal to the Ninth Circuit, the panel found “the record in this case . . .
does not indicate that either the state trial court or the Arizona Supreme Court
applied . . . a [causal] nexus test.” App. E-29. With regard to the Arizona Supreme
Court’s treatment of mitigation, the panel found that the court’s “opinion indicates
that it . . . considered all of the mitigating factors and did not find them sufficient to
outweigh the aggravating circumstances.” App. E-29 (citing State v. Greenway, 823
P.2d at 35-38). Then, citing to Schad v. Ryan, 606 F.3d 1022, 1046 (9th Cir. 2010),
the panel held that because “‘there is no indication that the state courts applied a
nexus test’ . . . . we must conclude” that Mr. Greenway is not entitled to relief. App.
E-29. The panel did not address the Arizona Supreme Court’s language that Mr.
Greenway’s borderline I.Q. “was n[ot] significant enough to qualify as a mitigating
factor[.]” App. G-33. Nor did the panel address the Arizona Supreme Court’s reliance
9
on Jimenez, which required a defendant to link his mental state to the crime in order
for it to be considered mitigating. App. G-34.
The Ninth Circuit reversed the district court’s holding on other grounds and
remanded the case to the district court for consideration of Mr. Greenway’s claims of
ineffective assistance of trial and appellate counsel on the merits.
App. E-30.
Following remand and the denial of Mr. Greenway’s claims in district court, and while
Mr. Greenway’s case was still pending on appeal, the Ninth Circuit issued its opinion
in McKinney v. Ryan, which held that the Arizona Supreme Court had consistently
articulated and applied an impermissible causal nexus test to mitigating evidence in
violation of Eddings v. Oklahoma, “in accordance with its strong view of stare decisis.”
McKinney, 813 F.3d at 803. The court also explicitly overruled the Ninth Circuit’s
panel decision in Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011), finding that the “clear
indication” rule announced in Schad was “an inappropriate and unnecessary gloss on
the deference already required under § 2254(d).”
McKinney, 813 F.3d at 819.
Because Mr. Greenway’s panel had previously relied on Schad to deny relief on this
claim, it allowed supplemental briefing on the applicability of McKinney to Mr.
Greenway’s case.
The Ninth Circuit ultimately rejected Mr. Greenway’s claims of ineffective
assistance of trial and appellate counsel, and affirmed the district court’s denial of
habeas relief.
App. C-14.
The court also denied relief on Mr. Greenway’s
10
supplemental McKinney claim.
App. B-15.
The Ninth Circuit issued an order
denying panel rehearing and rehearing en banc on November 1, 2017. App. A.
REASONS FOR GRANTING THE WRIT
In Eddings, this Court held under the Eighth and Fourteenth Amendments
that a sentencer in a capital case may not “refuse to consider, as a matter of law, any
relevant mitigating evidence” offered by the defendant. 455 U.S. at 114-15 (alteration
in the original). Despite this, in Mr. Greenway’s case the Arizona Supreme Court,
contrary to Eddings, required Mr. Greenway to establish a causal connection between
his nonstatutory evidence of low intelligence, immaturity, and an inability to respond
appropriately to stressful situations and the crimes before it would consider this
evidence in its sentencing decision. The Ninth Circuit panel in this case upheld the
lower court’s decision despite its application of this unconstitutional causal nexus
test. This Court should resolve this matter because the panel opinion conflicts with
this Court’s Eighth and Fourteenth Amendment case law and cannot be reconciled
with other Ninth Circuit decisions.
I.
The Arizona Supreme Court’s Exclusion of Relevant Mitigating
Evidence from the Sentencing Calculus Violated Mr. Greenway’s
Eighth and Fourteenth Amendment Rights and was Contrary to
Clearly Established Law.
A.
The Arizona Supreme Court failed to consider relevant
mitigating evidence because it found that Mr. Greenway failed
to establish this evidence was causally connected to the crimes.
11
At the time of Mr. Greenway’s sentencing and direct appeal, the Arizona
Supreme Court required a defendant to show that a causal connection existed
between nonstatutory mitigating evidence and the commission of the crime. See
McKinney, 813 F.3d at 813. This causal nexus test was applied by the Arizona
Supreme Court in its independent review of Mr. Greenway’s sentence. As a result,
Mr. Greenway’s mitigation related to his low intelligence, immaturity, and an
inability to respond appropriately to stressful situations was taken out of the
sentencer’s effective reach in violation of the Eighth and Fourteenth Amendments to
the United States Constitution. See Eddings, 455 U.S. 104; see also Lockett v. Ohio,
438 U.S. 586 (1978); Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
In Eddings, this Court held under the Eighth and Fourteenth Amendments
that a sentencer in a capital case may not “refuse to consider, as a matter of law, any
relevant mitigating evidence” offered by the defendant. 455 U.S. at 114-15; see also
Lockett, 438 U.S. at 604 (finding “in capital cases the fundamental respect for
humanity underlying the Eighth Amendment . . . requires consideration of the
character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of inflicting
the penalty of death”) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).
This Court further clarified this standard in Penry v. Lynaugh, where it stated “it is
not enough simply to allow the defendant to present mitigating evidence to the
12
sentencer. The sentencer must also be able to consider and give effect to that evidence
in imposing sentence.” 492 U.S. at 319 (emphasis added). While the existence of a
causal connection between mitigating evidence and the crime may be considered
when assigning weight to this evidence, see Lopez v. Ryan, 630 F.3d 1198, 1204 (9th
Cir. 2011), a court may not exclude mitigating evidence from the sentencing calculus
on the basis that a causal connection was not established. See Eddings, 455 U.S. at
114-15.
On federal habeas review of a state court decision, the courts look to the last
reasoned decision by the state courts. See Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991). The opinion of the Arizona Supreme Court was the last reasoned opinion in
Mr. Greenway’s case. The specific language of the Arizona Supreme Court and its
analysis of Jimenez demonstrate that Mr. Greenway’s mitigating evidence was
screened from its consideration because it lacked a causal connection to the crimes.
Moreover, it is not surprising that the Arizona Supreme Court did this because at the
time Mr. Greenway was sentenced and at the time the court independently reviewed
his sentence, the law in Arizona required that a causal connection be established
between mitigating evidence and the crime before this evidence could be considered
in a sentencing decision. See McKinney, 813 F.3d at 813.
In McKinney, the Ninth Circuit found that from the late 1980s until the mid2000s, the Arizona Supreme Court repeatedly articulated a test for nonstatutory
mitigation that required a defendant to establish a causal connection between
13
evidence of a difficult family background or mental condition and the crime before
this evidence could be considered as relevant mitigating evidence. Id. at 813-818
(citing State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989); State v. Brewer, 826 P.2d 783,
802 (Ariz. 1992); State v. Ross, 886 P.2d 1354, 1363 (Ariz. 1994); State v. Djerf, 959
P.2d 1274, 1289 (Ariz. 1998); State v. Kayer, 984 P.2d 31, 46 (Ariz. 1999); State v.
Hoskins, 14 P.3d 997, 1021-22 (Ariz. 2000)). The Ninth Circuit noted that it was not
until the United States Supreme Court “emphatically reiterated” the rule in Eddings
in Tennard v. Dretke, 542 U.S. 274 (2004), that “the Arizona Supreme Court finally
abandoned its unconstitutional causal nexus test for nonstatutory mitigation.”
McKinney, 813 F.3d at 817 (citing State v. Anderson, 111 P.3d 369, 392 (Ariz. 2005)).
In fact, following the United States Supreme Court’s decision in Tennard, the Arizona
Supreme Court posted the following notice on its website under the section Capital
Sentencing Guide, with the lettering in bold, red font:
The Causal Nexus/Connection: DO NOT EMPLOY THIS TEST TO
EXCLUDE EVIDENCE FROM GOING TO THE JURY
Arizona case law is replete with the use of a “causal connection” or
“nexus” test, which questions whether there is a link between the
impairment . . . and the murder itself.
...
The United States Supreme Court cast [sic] serious doubt as to the
continued viability of any causal nexus test, particularly when it is used
to preclude evidence from being admitted at the sentencing phase. In
Tennard v. Dretke, 543 U.S. 274 (2004) the Court held that precluding
evidence of a defendant’s low I.Q. based upon the fact that it did not
14
“relate specifically to” the defendant’s culpability for the crime, violated
the Eighth Amendment.
...
The Arizona Supreme Court recognized the importance of the Tennard
opinion in State v. Frank Winfield Anderson, 210 Ariz. 327, 111 P.3d 639
(2005), and noted with approval the fact that the trial court did not
instruct the jury that it had to find a “nexus” between the proffered
mitigation evidence and the defendant’s crime. It cited with approval
the more general instruction given in that case that the jury was to
consider any mitigation they found “relevant in determining whether to
impose a sentence less than death.” See Frank Anderson at 349 ¶ 94,
111 P.3d at 391.
Capital Sentencing Guide, created by the Arizona Death Penalty Judicial Assistance
Program available at https://web.archive.org/web/ 20100202230302/http:// supreme.
state.az.us/courtserv/CrtProj/capsentguid/G1Intro.htm (last visited Mar. 27, 2018)
(Appendix H).
The “law” in the state of Arizona at the time that Mr. Greenway was sentenced
to death and on his direct appeal was that the existence of a mental condition was
not enough to constitute mitigating evidence unless the defendant proved “that, at
the time of the crime, the disorder controlled defendant’s conduct or impaired his
mental capacity to such a degree that leniency is required.” Brewer, 826 P.2d at 802;
see also Kayer, 984 P.2d at 46 (holding defendant’s mental impairment did not
constitute a nonstatutory mitigating circumstance, in part because “defendant
offered no evidence to show the requisite causal nexus that mental impairment
affected his judgment or his actions at the time of the murder”); State v. Jones, 917
15
P.2d 200, 221 (Ariz. 1996) (holding defendant’s mental impairment did not constitute
mitigating evidence because the defendant did not “establish a causal connection
between his [mental condition] and his conduct on the night of the murders”).
Moreover, as the Arizona Supreme Court clarified in Hoskins, only if a
defendant established a causal nexus would a court then determine “what, if any,
weight to accord the circumstance in mitigation.”
Hoskins, 14 P.3d at 1021-22
(citations omitted) (emphasis added). The case law shows that only after a defendant
established a causal nexus would the court determine whether the mitigating
evidence was entitled to any weight. In other words, under Arizona law at the time,
a court did not begin weighing a mitigating circumstance until after it had determined
that the defendant had proven causation.
As a result, Mr. Greenway’s mitigating evidence of low intelligence,
immaturity, and an inability to respond appropriately to stressful situations was
removed from the sentencing calculus by the Arizona Supreme Court’s determination
that Mr. Greenway’s evidence lacked a causal connection to the crime. Because the
trial court did not make any specific findings with regard to Mr. Greenway’s mental
condition mitigation, it is unknown how the trial court treated this evidence.
However, the last reasoned decision in Mr. Greenway’s case was the Arizona Supreme
Court’s opinion on direct review. See Nunnemaker, 501 U.S. at 803; see also Barker
v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). The Arizona Supreme Court
applied a causal nexus requirement to Mr. Greenway’s evidence of low intelligence,
16
immaturity, and an inability to respond appropriately to stressful situations. The
court first found that this evidence “was [not] significant enough to qualify as a
mitigating factor” because Mr. Greenway was found to be borderline functional and
not mentally retarded. App. G-33. Then, relying on Jimenez, the court explained
that because Mr. Greenway did not demonstrate that his low I.Q. had an effect on
him “at the time he committed the murder[,]” he failed to establish that his low I.Q.
was a mitigating factor. App. G-34. Therefore, Mr. Greenway’s evidence of low
intelligence, immaturity, and an inability to respond appropriately to stressful
situations was never weighed against the aggravating factors. This was the result of
the evidence being screened from consideration by the causal nexus test.
B.
Mr. Greenway was prejudiced when the Arizona Supreme Court
excluded relevant mitigating evidence from its sentencing
decision because it found it lacked a causal connection to the
crime.
In McKinney, the Court held that Eddings error is subject to review for
harmless error.
813 F.3d at 821.
The Court recognized that the standard for
harmless error on habeas review is whether “the error ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’” Id. at 822 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)). The Court noted that while a petitioner must
establish actual prejudice under Brecht, “the ‘risk of doubt’ is placed ‘on the State.’”
Id. (citing O’Neal v. McAninch, 513 U.S. 432, 439 (1995)). The Court reiterated that
in a federal habeas case, “in the absence of structural error that requires automatic
17
reversal, ‘relief is appropriate only if the prosecutor cannot demonstrate harmless
error.’” Id. (citation omitted).
In Mr. Greenway’s case, the exclusion of mitigating evidence had a “substantial
and injurious effect or influence” on the sentencing outcome. See Brecht, 507 U.S. at
623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). During the
penalty phase of his trial, Mr. Greenway presented uncontested witness testimony
demonstrating that he had low intelligence, immaturity, and an inability to respond
appropriately to stressful situations. Expert testimony revealed that he had a fullscale I.Q. score of 72 (ER 876-877), which would have removed him from being
automatically eligible for the death penalty under Arizona law today. See A.R.S. § 13753(D) (2018).
Expert testimony also indicated that he was emotionally functioning at the
level of a nine to twelve-year-old child rather than as a twenty-year-old adult. (ER
881-883.) Moreover, he was mentally functioning at the level of an eleven-year-old
child and had poor judgment. (ER 885-886.) Mr. Greenway was a slow learner who
had difficulty reading and comprehending and only completed the sixth grade. (ER
918-919, 935, 937, 938, 939.) He was unable to fill out employment applications by
himself and could only work at menial jobs requiring only simple tasks. (ER 693-695,
844.)
This Court has long recognized that evidence of this type should lessen a
defendant’s culpability. In Penry, this Court recognized that low intelligence “may
18
diminish an individual’s culpability for a criminal act.” 492 U.S. at 337; see also
Atkins, 536 U.S. at 318. In Eddings, this Court also recognized that in addition to a
defendant’s young age, a defendant’s “mental and emotional development” is relevant
mitigating evidence that should be given great weight. Eddings, 455 U.S. at 116. In
Tennard, the Supreme Court found that “impaired intellectual functioning is
inherently mitigating[,]” 542 U.S at 287 (citing Atkins, 536 U.S. at 316), and “might
serve ‘as a basis for a sentence less than death.’” 542 U.S at 287 (quoting Skipper v.
South Carolina, 476 U.S. 1, 5 (1986)).
Because this evidence was excluded from consideration on the basis that Mr.
Greenway failed to establish a causal connection between this mitigating evidence
and the crime, it is impossible to say “‘with fair assurance . . . that the judgment was
not substantially swayed by the error[.]’” See McKinney, 813 F.3d at 822 (quoting
Kotteakos, 328 U.S. at 765).
Therefore, the exclusion of this evidence had a
“substantial and injurious effect or influence” on the sentencing decision in Mr.
Greenway’s case. See Brecht, 507 U.S. at 623.
C.
The Ninth Circuit’s panel decision conflicts with this Court’s
case law, and cannot be reconciled with other Ninth Circuit
opinions addressing this issue.
In a per curiam opinion following the McKinney decision, the panel in Mr.
Greenway’s case denied his claim that the Arizona state courts applied an
impermissible causal nexus test to his mitigating evidence in violation of Lockett and
Eddings. The panel found that despite the “presumption” established in the Ninth
19
Circuit’s en banc opinion in McKinney that the Arizona Supreme Court “violated the
dictates of Lockett and Eddings” during a period between 1989 and 2005 in every
case, “[n]one of the formulations we enumerated in McKinney are present in the state
court’s Greenway decision.” App. B-11.
The panel also found that the Arizona
Supreme Court’s reliance on Jimenez, which required a causal connection between
mitigating evidence and the crime was not improper because the court in Jimenez
was discussing the statutory mitigating circumstance under (G)(1) where a causal
connection requirement was proper.
App. B-13.
However, the panel failed to
acknowledge that the Arizona Supreme Court relied on Jimenez under its
consideration of Mr. Greenway’s nonstatutory mitigating evidence where a causal
connection requirement was impermissible.
The court in McKinney did not establish a presumption that Eddings error
occurred in every case; rather, the court reasoned that because of the Arizona state
courts’ consistent articulation and application of this unconstitutional nexus test, the
presumption in federal habeas cases pursuant to Viscotti that the state courts know
and follow federal law was rebutted where it was clear, “based on its own words, that
the Arizona Supreme Court did not ‘know and follow’ federal law” during this relevant
time period. McKinney, 813 F.3d at 803-04. The court then concluded that in a given
case where the language of the state court requires mitigating evidence to be causally
connected to the crime, and where the Arizona Supreme Court cites to the causal
nexus test and to Arizona case law applying this causal nexus test to exclude
20
mitigating evidence, it has unreasonably applied clearly established Supreme Court
law. Id. at 821. The court did not hold that Eddings had been violated in every
capital case during this period.
The court in McKinney also gave several examples of how the Eddings error
occurred in Arizona cases, ultimately finding, “The Arizona Supreme Court
articulated the causal nexus test in various ways but always to the same effect: As a
matter of law, a difficult family background or mental condition did not qualify as a
nonstatutory mitigating factor unless it had a causal effect on the defendant’s
behavior in committing the crime at issue.” McKinney, 813 F.3d at 816. The court
noted that the Arizona Supreme Court often found that in the absence of a causal
nexus, proffered evidence was not mitigating evidence, or that in the absence of a
causal connection, the evidence should be given no weight, or that this evidence was
“not necessarily” or not “usually” mitigating in the absence of a causal connection.
Id. at 816-17. This was not an exhaustive list but rather exemplary of the different
ways in which the Arizona courts committed Eddings error.
In Mr. Greenway’s case, the Arizona Supreme Court articulated the causal
nexus test in its analysis of Mr. Greenway’s nonstatutory mitigating evidence and
relied on a state case requiring that a causal connection be established before a court
could consider nonstatutory mitigating evidence in its sentencing decision. It then
held that it could not consider Mr. Greenway’s evidence of low I.Q. as mitigating
21
evidence because Mr. Greenway did not demonstrate that his low I.Q. affected his
behavior “at the time he committed the murder.” App. G-34.
The decision of the panel in this case cannot be reconciled with the holdings in
McKinney and Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008). In McKinney and
Styers, the Ninth Circuit granted habeas relief to Arizona death row prisoners on
state court records in which the constitutional violation was less apparent than the
record presented in this case. In McKinney, the Arizona Supreme Court noted that
the trial court “gave full consideration to McKinney’s childhood and the expert
testimony regarding the effects of that childhood, specifically the diagnosis of posttraumatic stress disorder (PTSD). . . . [However,] the judge found that . . . none of the
evidence showed[ ] that such conditions in any way significantly impaired McKinney’s
ability to conform his conduct to the law.” 917 P.2d 1214, 1234 (Ariz. 1996). The
court then found that “a difficult family background, including childhood abuse, does
not necessarily have substantial mitigating weight absent a showing that it
significantly affected or impacted the defendant’s ability to . . . control his actions.”
Id. (emphasis added) (citing State v. Ross, 886 P.2d 1354, 1363 (1994)). The court
concluded that the trial court considered the evidence “and found it insufficiently
mitigating to call for leniency.” McKinney, 917 P.2d at 1234.
The Ninth Circuit, sitting en banc, however, concluded that the Arizona
Supreme Court improperly excluded this evidence from its consideration because it
applied an impermissible causal nexus requirement to nonstatutory mitigation.
22
McKinney, 813 F.3d at 820-21. The court noted that the trial court’s language that
McKinney’s PTSD did not “in any way significantly impair[ ] [his] conduct[,]” or “that
it in any way affected his conduct in this case[,]” echoed both the causal nexus test
within the statutory mitigating factor under A.R.S. § 13-703(G)(1) as well as the
impermissible language of Arizona’s causal nexus test applicable to nonstatutory
mitigation. Id. at 809-10. The court found that when the causal nexus test is applied
to nonstatutory mitigation Eddings is violated. Id.
Despite the fact that the Arizona Supreme Court used language indicating the
causal nexus was only applied when considering the weight to give to this evidence,
the Ninth Circuit found that the state court’s articulation of the causal nexus test
when discussing nonstatutory mitigation, in conjunction with a citation to a previous
case where it had previously improperly employed that test, required it to conclude
that the Arizona Supreme Court excluded this evidence, as a matter of state law, from
its consideration and, therefore, gave it no weight. Id. at 821 (citing Ross, 886 P.2d at
1363).
Similarly in Styers, in affirming the defendant’s death sentence, the Arizona
Supreme Court expressly stated that it had “considered all of the proffered mitigation
and, like the trial court, [found it] not sufficiently substantial to warrant leniency.”
State v. Styers, 865 P.2d 765, 778 (Ariz. 1993). The Ninth Circuit, however, concluded
that the state court’s analysis demonstrated that it had not considered all the
23
proffered mitigation. Styers, 547 F.3d at 1035. Specifically, the court focused on the
following language from the state supreme court’s opinion in Styers:
Defendant also suffered from post-traumatic stress disorder prior to and
around the time of the murder as a result of his combat service in
Vietnam. This could also, in an appropriate case, constitute mitigation.
See State v. Bilke, 162 Ariz. 51, 53, 781 P.2d 28, 30 (1989) (finding
evidence of post-traumatic stress disorder constituted newly discovered
evidence that may have affected sentencing). However, two doctors who
examined defendant could not connect defendant’s condition to his
behavior at the time of the conspiracy and the murder.
Styers, 865 P.2d at 777. The Ninth Circuit found that the state supreme court’s “use
of the conjunctive adverb ‘however,’ following its acknowledgment that such evidence
‘could’ in certain cases constitute mitigation,” indicated that the state court had not
considered the evidence mitigating in Styers. 547 F.3d at 1035. Yet, there is no
evidence in Styers that the Arizona Supreme Court applied a causal nexus test as a
screening mechanism as opposed to a weighing mechanism. Indeed, the state court
observed in Styers, “It is apparent that the trial court considered this evidence, but
ultimately found that it was not sufficiently substantial to call for leniency. We will
also consider it in our independent review.” 865 P.2d at 778. Later, the supreme court
reiterated, “We have considered all of the proffered mitigation and, like the trial
court, find it is not sufficiently substantial to warrant leniency.” Id.
The Ninth Circuit’s opinions in McKinney and Styers are in direct conflict with
that in Greenway. The petitioners in McKinney and Styers were granted relief based
on Eddings even though in both instances, the state courts used language indicating
24
the causal connection between mitigation and the crimes was only considered when
deciding how much weight to accord this evidence. However, in Mr. Greenway’s case,
despite the fact that the language of the state court made the Eddings error more
clear than in the cases of McKinney and Styers, Mr. Greenway was denied relief. This
result is unjustifiable and constitutes a grossly arbitrary result.
CONCLUSION
For the foregoing reasons, Mr. Greenway respectfully requests this Court to
grant his petition for writ of certiorari, and reverse the Ninth Circuit panel’s opinion
denying relief on his Eddings claim.
Respectfully submitted this 30th day of March, 2018.
JON M. SANDS
Federal Public Defender
District of Arizona
Therese Michelle Day
Counsel of Record
Assistant Federal Public Defender
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
(602) 382-2816 (voice)
(602) 889-3960 (facsimile)
therese_day@fd.org
Counsel for Petitioner Greenway
s/ Therese Michelle Day
Therese Michelle Day
Counsel of Record
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.