Respondents Brief — James Erin McKinney, Petitioner v. Arizona

No. 18-1109

In the

Supreme Court of the United States

JAMES ERIN MCKINNEY,

v.

Petitioner,

STATE OF ARIZONA,

Respondent.

On Writ of Certiorari to the Arizona Supreme Court

BRIEF FOR RESPONDENT

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Division Chief

ORAMEL H. (O.H.) SKINNER

Solicitor General

Counsel of Record

LACEY STOVER GARD

Chief of Capital Litigation

GINGER JARVIS

LAURA CHIASSON

Unit Chiefs, Capital Litigation

KATE B. SAWYER

Assistant Solicitor General

KATHERINE H. JESSEN

Assistant Attorney General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

o.h.skinner@azag.gov

Counsel for Respondent

i

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the Arizona Supreme Court was required

to apply current law when weighing mitigating

and aggravating findings to determine whether a

death sentence is warranted.

2. Whether the correction of error under Eddings v.

Oklahoma, 455 U.S. 104 (1982), requires resentencing.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ........................................v

INTRODUCTION ........................................................1

STATEMENT ..............................................................3

A. Murders of Mertens and McClain ..............3

B. Arizona’s Sentencing Framework ...............4

C. Sentencing ...................................................5

D. Direct Appeal Framework...........................7

E. Direct Appeal Proceedings ..........................9

F. Federal Habeas Proceedings .....................10

G. Post-Writ Independent Review .................13

SUMMARY OF ARGUMENT ...................................14

ARGUMENT .............................................................17

I. BECAUSE

THE

ARIZONA

SUPREME

COURT

NEVER

REOPENED DIRECT REVIEW, NO

NEW

CRIMINAL

PROCEDURE

RULES APPLY ...............................................17

A. The Conditional Habeas Writ

Here Did Not Itself Reopen Direct

Review Or Require The Arizona

Courts To Do So.........................................18

iii

TABLE OF CONTENTS—Continued

B. The Arizona Supreme Court’s

State-Law Determination That

Post-Conditional-Writ

Independent Review Is Not Part

Of Direct Review Ends The

Retroactivity Analysis ...............................20

1. The Arizona Supreme Court

Has Held That Its PostConditional-Writ Independent

Review Proceedings Are Not

Part of Direct Review ...........................21

2. The Court Cannot Upend The

Arizona

Supreme

Court’s

Dispositive Interpretation Of

State Law .............................................23

3. McKinney Cannot Avoid The

Arizona

Supreme

Court’s

Conclusions By Saying Finality

Here Is Purely A Federal

Question ...............................................26

II. MANDATORY

RESENTENCING

FOR ALL EDDINGS ERRORS IS

UNWARRANTED AND WOULD

UNDERMINE THE INTERESTS OF

JUSTICE, AS DEMONSTRATED BY

THE RECORD HERE ....................................29

A. A Mandatory Resentencing Rule

Would Contradict Language From

Prior Cases And Undermine The

Interests Of Justice ...................................30

B. The Record Here Contradicts The

Need

For

A

Mandatory

Resentencing Requirement .......................31

iv

TABLE OF CONTENTS—Continued

1. The Identified Eddings Error

Occurred At The Arizona

Supreme Court, Not The Trial

Court .....................................................32

2. The Record Here Was More

Than Adequate For Appellate

Error

Correction,

Which

Differentiates This Case From

The

Court’s

Trial-Level

Eddings Remands ................................34

3. Appellate

Correction

Of

Appellate Error Is Supported

By Clemons As Well As The

Need To Tailor Post-Writ

Proceedings ..........................................35

C. McKinney’s Attack On The Record

Is

Insufficient

And

Would

Warrant At Most A Remand For

Harmless Error Analysis As To

The Scope Of The Mitigation

Record ........................................................38

D. Alternatively, The Court Should

Correct The Ninth Circuit’s

Conflated Reading Of Arizona

Case Law And Confirm That

There Was No Eddings Error Here ..........40

CONCLUSION ..........................................................42

v

TABLE OF AUTHORITIES

CASES

Calderon v. Coleman

525 U.S. 141 (1998) ...............................................30

Caldwell v. Mississippi

472 U.S. 320 (1985) .........................................36, 37

Caspari v. Bohlen

510 U.S. 383 (1994) ...............................................26

Clay v. United States

537 U.S. 522 (2003) ...............................................27

Clemons v. Mississippi

494 U.S. 738 (1990) ....................................... passim

Commonwealth v. LeFave

714 N.E.2d 805 (Mass. 1999) ................................39

Danforth v. Minnesota

552 U.S. 264 (2008) ...............................................20

Douglas v. Jacquez

626 F.3d 501 (9th Cir. 2010) .................................19

Eddings v. Oklahoma

455 U.S. 104 (1982) .........................................10, 41

Foster v. Chatman

136 S. Ct. 1737 (2016) ...........................................21

Foxworth v. St. Amand

570 F.3d 414 (1st Cir. 2009) ..................................25

Gentry v. Deuth

456 F.3d 687 (6th Cir. 2006) .................................20

Goff v. Bagley

601 F.3d 445 (6th Cir. 2010) .................................36

Gonzalez v. Thaler

565 U.S. 134 (2012) ...............................................27

vi

TABLE OF AUTHORITIES—Continued

Greenway v. Ryan

866 F.3d 1094 (9th Cir. 2017) ...............................33

Harris v. Alabama

513 U.S. 504 (1995) ...............................................41

Henderson v. Frank

155 F.3d 159 (3d Cir. 1998) ...................................19

Hilton v. Braunskill

481 U.S. 770 (1987) .........................................19, 20

Hitchcock v. Dugger

481 U.S. 393 (1987) ................................... 30, 34, 38

Jennings v. Stephens

135 S. Ct. 793 (2015) .............................................18

Jimenez v. Quarterman

555 U.S. 113 (2009) ....................................... passim

Johnson v. Fankell

520 U.S. 911 (1997) ...............................................23

Jones v. Barnes

463 U.S. 745 (1983) ...............................................24

Lafler v. Cooper

566 U.S. 156 (2012) ...............................................37

Libberton v. Ryan

583 F.3d 1147 (9th Cir. 2009) ...............................18

Losh v. Fabian

592 F.3d 820 (8th Cir. 2010) ..................... 24, 25, 26

Lujan v. Garcia

734 F.3d 917 (9th Cir. 2013) .................................38

Mackey v. United States

401 U.S. 667 (1971) ...............................................31

McKinney v. Ryan

730 F.3d 903 (9th Cir. 2013) .................................11

vii

TABLE OF AUTHORITIES—Continued

McKinney v. Ryan

No. 03-cv-00774, Dkt. 84

(D. Ariz. Oct. 6, 2016) ...................................... 13, 18

McKinney v. Ryan

No. 2:03-cv-00774, 2009 WL 2432738

(D. Ariz. Aug. 10, 2009) ...................................10, 11

Mills v. Maryland

486 U.S. 367 (1988) ...............................................34

Mullaney v. Wilbur

421 U.S. 684 (1975) .........................................18, 23

Parker v. Dugger

498 U.S. 308 (1991) ..............................................35

Penry v. Lynaugh

492 U.S. 302 (1989) ...............................................34

Phillips v. White

851 F.3d 567 (6th Cir. 2017) .................................18

R.A.V. v. City of St. Paul

505 U.S. 377 (1992) ...............................................21

Ramirez v. Ryan

937 F.3d 1230 (9th Cir. 2019) ...............................33

Richardson v. Gramley

998 F.2d 463 (7th Cir. 1993) .................................21

Schad v. Arizona

501 U.S. 624 (1991) ...............................................23

Skipper v. South Carolina

476 U.S. 1 (1986) ...................................................34

State v. Brewer

826 P.2d 783 (Ariz. 1992) ........................................7

State v. Chappell

236 P.3d 1176 (Ariz. 2010) ......................................5

viii

TABLE OF AUTHORITIES—Continued

State v. Fleming

61 So.3d 399 (Fla. 2011) ..................................19, 24

State v. Harper

823 P.2d 1137 (Wash. App. 1992) .........................40

State v. Hedlund

431 P.3d 181 (Ariz. 2018) ...................... 9, 21, 22, 23

State v. Kilgore

216 P.3d 393 (Wash. 2009) .............................. 19, 24

State v. Morris

160 P.3d 203 (Ariz. 2007) ........................................8

State v. Richmond

560 P.2d 41, 51 (Ariz. 1976) ....................................8

State v. Roseberry

353 P.3d 847 (Ariz. 2015) ........................................8

State v. Styers

254 P.3d 1132 (Ariz. 2011) ........................ 17, 21, 22

State v. Watson

628 P.2d 943 (Ariz. 1981) ........................................8

Styers v. Ryan

811 F.3d 292 (9th Cir. 2015) ................. 2, 22, 24, 26

Styers v. Ryan

No. 2:98-cv-02244, 2012 WL 3062799

(D. Ariz. July 26, 2012) ............................. 22, 24, 38

Teague v. Lane

489 U.S. 288 (1989) .........................................17, 28

United States v. Hadden

475 F.3d 652 (4th Cir. 2007) .................................19

Wearry v. Cain

136 S. Ct. 1002 (2016) ...........................................21

ix

TABLE OF AUTHORITIES—Continued

Woodfox v. Cain

789 F.3d 565 (5th Cir. 2015) .................................20

Woods v. Ryan

No. 2:13-cv-02518, 2015 WL 4555251

(D. Ariz. July 28, 2015) .........................................38

STATUTES

28 U.S.C. § 2255 ........................................................28

A.R.S. § 13-703 (1991) .................................................5

A.R.S. § 13-751 ............................................................6

A.R.S. § 13-755 ........................................................8, 9

A.R.S. § 13-4033 ..........................................................7

1

INTRODUCTION

Contrary to the image McKinney paints, the record

here offers no reason for the Court to discard its

existing path in order to set out sweeping new approaches in two different areas of criminal law, both

of which go well beyond the death penalty context.

That is especially true given that the imaginative

standards McKinney espouses fly in the face of the

well-established balance between federal and state

courts in these areas as well as the Court’s

longstanding approach to finality, comity, and the

tailoring of post-writ error-correction proceedings.

During sentencing, the judge fully explicated his

thoughts, factual conclusions, credibility findings,

and legal analysis. He did not restrict McKinney’s

presentation of mitigating evidence or factual development of mitigating factors. McKinney had a full

opportunity to develop his PTSD evidence, including

by calling both expert and lay witnesses to address

his unfortunate childhood. JA 12–183, 241–258. The

judge thereafter made a credibility finding in favor of

McKinney’s expert. JA 291. The sentencing judge

also discussed McKinney’s PTSD evidence at length

in his special verdict and accepted as true the PTSD

diagnosis. Pet. App. 187a–190a.

Unlike the mine-run case, the Eddings dispute

here was focused on the Arizona Supreme Court’s

actions instead of those of the trial court. The Eddings dispute in the Ninth Circuit turned on whether

the Arizona Supreme Court properly considered

causal connections in determining whether mitigation evidence in the record should get substantial

weight (as opposed to some lesser weight), or instead

improperly applied a causal nexus test to give cer-

2

tain mitigation evidence in the record no weight as a

matter of law.

After determining by a 6-5 en banc vote that the

Arizona Supreme Court had violated Eddings, the

Ninth Circuit sent the case down, where the district

court entered a conditional habeas order, providing

Arizona with an opportunity to “correct the constitutional error in McKinney’s death sentence.” And the

Arizona Supreme Court thereafter initiated postwrit independent-review proceedings that it has

repeatedly concluded are not part of state court

direct review and do not reopen a conviction when

used in this precise procedural posture. See, e.g.,

Styers v. Ryan, 811 F.3d 292, 297 n.5, 298 (9th Cir.

2015) (Styers VI), cert. denied, 137 S. Ct. 1332 (2017).

McKinney’s attempt to expand the retroactive application of Ring here founders in the face of the

Arizona Supreme Court’s determination that the

post-writ, Eddings-related independent review at

issue is a collateral proceeding under state law that

does not reopen direct review. The Court’s retroactivity standard looks to the contours of state direct

review to measure finality in the present context.

And the contours of state court direct review is a

state-law question that has been answered in the

present context by the Arizona Supreme Court. Just

as the Court in Jimenez v. Quarterman, 555 U.S. 113

(2009), expressly accepted the conclusion of the

Texas Court of Criminal Appeals as to whether the

case was proceeding on a new direct appeal in state

court, the Court must accept the Arizona Supreme

Court’s conclusion that the proceedings were collateral (not direct), and confirm that Teague governs

here such that no new rules of criminal procedure

apply.

3

The record here presents a similarly insurmountable roadblock to Petitioner’s sweeping request for all

Eddings errors to be corrected by a trial-level resentencing. Trial-level resentencing might be an appropriate Eddings remedy in some cases, but the appropriateness of a per se rule is contradicted by the

record and the Arizona procedures presented here. It

bears repeating that the supposed Eddings error in

this case did not stem from the preclusion of mitigation evidence or the failure to create an adequate

sentencing record. Instead, the supposed error involved the alleged failure to consider (as a matter of

law) extant record evidence of PTSD in the Arizona

Supreme Court during de novo appellate review.

Considering that history, this is precisely the type of

case in which appellate court error correction would

be warranted (rather than trial court resentencing).

STATEMENT

A.

MURDERS OF MERTENS AND MCCLAIN

In February 1991, McKinney and his half-brother,

Charles Hedlund, resolved to commit a string of

burglaries. Pet. App. 120a. The men planned their

crimes well in advance and vowed to use violence if

needed: “McKinney boasted that he would kill anyone who happened to be home … and Hedlund stated

that anyone he found would be beaten in the head.”

Id. McKinney and Hedlund learned from friends

that Christine Mertens’ home would make an attractive burglary target. Id. 120a. The brothers attempted to burglarize Mertens’ home on February

28, but fled when she arrived home. Id. 121a.

Hedlund and McKinney selected another home to

burglarize that night, but left empty-handed. Id.

4

They burglarized two other homes the following

evening. Id.

McKinney and Hedlund did not give up on Mertens’

home, as they believed she kept a significant amount

of money hidden in her refrigerator. Id. The men

returned to the home on March 9, when Mertens was

there alone. Id. In keeping with their prior vows of

violence, McKinney and Hedlund beat and stabbed

Mertens multiple times as she struggled against

them. Id. McKinney eventually pinned Mertens to

the floor, covered his pistol with a pillow to muffle

the noise, and shot Mertens in the back of the head.

Id. McKinney and Hedlund left with only $120. Id.

The brothers next targeted the home of 65-year-old

Jim McClain. Pet. App. 121a. McClain restored

used cars as a hobby, and Hedlund had previously

purchased a car from McClain. Id. Hedlund believed that McClain kept money in his home. Id.

121a–122a. The brothers entered the home through

a window as McClain slept; Hedlund was armed with

a sawed-off, .22 caliber rifle. Id. 122a. After ransacking the house, McKinney and Hedlund went into

the bedroom; one of them shot McClain as he slept.

Id. 122a, 142a–143a. The men took additional

valuables from the bedroom and stole McClain’s car.

Id. 122a.

A jury found McKinney guilty of two

counts of first-degree murder for killing Mertens and

McClain. Id. 120a.

B.

ARIZONA’S SENTENCING FRAMEWORK

Under Arizona law at the time of McKinney’s

crimes, the trial judge acted as the capital sentencer.

Following a guilty verdict for first-degree murder,

the judge was to conduct a sentencing hearing to

determine the existence of aggravation and mitiga-

5

tion. See A.R.S. § 13-703 (1991).1 At that hearing,

the State was required to prove the existence of

aggravation beyond a reasonable doubt, and both a

defendant and the State were permitted to introduce

any evidence relevant to whether to impose a sentence less than death in support of several statutory

mitigating factors and an unlimited, catch-all mitigation category (hereinafter “nonstatutory mitigation”).

A.R.S. § 13-703(C), (G) (1991). At the conclusion of

the hearing, a judge was to return a special verdict

listing the aggravation and mitigation he or she had

found, and impose a death sentence upon a finding of

at least one aggravating factor and no mitigation

sufficiently substantial to call for leniency. A.R.S.

§ 13-703(D), (E) (1991).

C.

SENTENCING

At the sentencing hearing, the court heard testimony from various members of McKinney’s family

and Dr. Mickey McMahon, a psychologist. JA 12–

184, 241–258. McKinney’s attorney also submitted a

lengthy mitigation memorandum.

Id. 299–384.

McKinney’s mitigation centered on his poor childhood, which, Dr. McMahon opined, caused McKinney

to develop Post-Traumatic Stress Disorder (PTSD).

Id. 112–184, 241–258, 330–333. The State presented

rebuttal psychological testimony contesting the

In 2008, the Arizona Legislature reordered and renumbered

Arizona’s capital sentencing statutes. See State v. Chappell,

236 P.3d 1176, 1181 n.3 (Ariz. 2010). Many of the statutes did

not change materially from the versions in effect at the time of

McKinney’s crimes. See id. Unless otherwise indicated,

Arizona cites the statutes’ current versions when they have not

changed materially since 1991.

1

6

PTSD diagnosis and diagnosing McKinney with AntiSocial Personality Disorder. Id. 184–241.

Following the hearing, the sentencing judge found

beyond a reasonable doubt that McKinney committed

both murders with the expectation of pecuniary gain,

see A.R.S. § 13-751(F)(3); that McKinney killed

Mertens in an especially cruel manner, see A.R.S.

§ 13-751(F)(4); and that McKinney’s conviction for

killing Mertens constituted a prior conviction for

which death or life was possible and thus qualified as

an aggravating factor for McClain’s murder, see

A.R.S. § 13-751(F)(1). Pet. App. 178a–187a.

After finding death-qualifying aggravation, the

sentencing judge considered the statutory mitigating

factors, see A.R.S. § 13-751(G)(1)–(5), as well as

McKinney’s proffered nonstatutory mitigation. Pet.

App. 187a–192a. The judge emphasized that he had

considered all exhibits admitted into evidence and

found, based on testimony from Dr. McMahon and

McKinney’s family members, that McKinney “had a

traumatic childhood” and was raised in “extraordinary” circumstances that were “beyond the comprehension and understanding of most people.” Id.

187a. The judge found the mitigation witnesses to be

truthful, and stated, “I did take them into consideration in this case.” Id.

With respect to the significant-impairment statutory mitigating factor, the sentencing judge noted the

absence of evidence suggesting that McKinney’s

PTSD significantly impaired his conduct. Id. 189a.

See A.R.S. § 13-751(G)(1) (defendant’s capacity to

appreciate his conduct’s wrongfulness or conform his

conduct to the law was significantly impaired, but

not sufficiently impaired to constitute a defense to

prosecution). The judge highlighted McKinney’s

7

“extensive pre-planning” of the offenses and found no

“reason to believe” that PTSD “in any way affected

his conduct in this case.” Pet. App. 189a–190a.

Accordingly, the judge found that McKinney had

failed to prove the (G)(1) factor. Id. 190a. None of

the other statutory mitigating factors were at issue

in the case. Id. 190a–192a.

Turning to nonstatutory mitigation, the sentencing

judge stated that he had reviewed McKinney’s mitigation memorandum and reaffirmed his finding that

McKinney had a difficult family history. Pet. App.

191a. But he did not “find that [this] is a substantial

mitigating factor,” repeating his determination that

McKinney’s history did not impair his ability to

understand his conduct and its wrongfulness. Id.

The judge then left no doubt that he had considered

all mitigation, stating: “With respect to the other

matters set out in the memorandum, I have considered them at length.” Id. 192a (emphasis added). He

explained that “after considering all of the mitigating

circumstances, [and] the mitigating evidence that was

presented by the defense in this case as against the

aggravating circumstances, and other matters which

clearly are not set forth in the statute which should

be considered by a court,” the mitigation was not

sufficiently substantial to warrant leniency. Id. 192a

(emphasis added).

D.

DIRECT APPEAL FRAMEWORK

Direct appeal from a death sentence in Arizona is

mandatory and automatic to the Arizona Supreme

Court, bypassing the Arizona Court of Appeals.

A.R.S. § 13-4033; State v. Brewer, 826 P.2d 783, 789–

794 (Ariz. 1992). At the time of McKinney’s direct

appeal, the Arizona Supreme Court independently

8

reviewed the record to determine whether the death

penalty was appropriate. The court for years had

conducted this review as part of a self-imposed

procedure. State v. Richmond, 560 P.2d 41, 51 (Ariz.

1976), abrogated by State v. Salazar, 844 P.2d 566

(Ariz. 1992). The court’s goal was to further the

measured and consistent death-penalty application

this Court has required. See State v. Watson, 628

P.2d 943, 946 (Ariz. 1981) (citing Godfrey v. Georgia,

446 U.S. 420, 428 (1980); Proffitt v. Florida, 428 U.S.

242 (1976); Gregg v. Georgia, 428 U.S. 153, 189

(1976)).

The Arizona Legislature codified the independentreview procedure in 1994, two years before the direct

appeal decision in McKinney’s case. See A.R.S. § 13755.2 The statute requires the Arizona Supreme

Court to “independently review the trial court’s

findings of aggravation and mitigation and the

propriety of the death sentence.” A.R.S. § 13-755(A).

The court reviews the entire record and does not

defer to the factfinder. State v. Roseberry, 353 P.3d

847, 849–850 (Ariz. 2015). The court independently

determines whether the mitigation is sufficiently

substantial to warrant leniency in light of the aggravation. A.R.S. § 13-755(B). If it is, then the court

reduces the sentence to life. Id. If the court harbors

doubt about the death penalty’s propriety, it errs on

the side of a life sentence. Roseberry, 353 P.3d at

850.

Current A.R.S. § 13-755 governs crimes occurring before

August 1, 2002; A.R.S. § 13-756 governs crimes that occurred

after August 1, 2002. See State v. Morris, 160 P.3d 203, 219

(Ariz. 2007).

2

9

The Arizona Supreme Court does not consider new

evidence on independent review; rather, a defendant

must introduce in the trial court all evidence relevant for consideration. State v. Hedlund, 431 P.3d

181, 184–185 (Ariz. 2018) (declining, in Eddings

error-correction independent review, to consider

evidence developed in state and federal postconviction proceedings). The court may, however, remand

a case to the trial court if evidence has been excluded

erroneously or if additional factual development is

needed. See A.R.S. § 13-755(C).

E.

DIRECT APPEAL PROCEEDINGS

The Arizona Supreme Court consolidated McKinney’s and Hedlund’s direct appeals. See Pet. App.

119a. In resolving Hedlund’s appeal, the court

expressly recognized that a sentencing judge “must

consider any aspect of [a defendant’s] character or

record and any circumstance of the offense relevant

to determining whether a sentence less severe than

the death penalty is appropriate.” Id. 141a. The

court also observed that “the judge has broad discretion to evaluate expert mental health evidence and to

determine the weight and credibility given to it.” Id.

It applied these same principles in independently

reviewing McKinney’s death sentences. Id. 161a–

162a.

The court addressed and rejected McKinney’s argument that his difficult childhood warranted a life

sentence. Id. 160a–162a. The court noted that the

sentencing judge had “found as a fact that McKinney

had an abusive childhood.” Id. The court further

confirmed that “the record shows that the judge gave

full consideration to McKinney’s childhood and the

expert testimony regarding the effects of that child-

10

hood, specifically the [PTSD] diagnosis.” Id. 161a.

The court highlighted the sentencing judge’s assessment that McKinney’s PTSD did not explain the

offenses, and stated: “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 perceive, comprehend, or control his actions.” Id. And the court ultimately concluded that

“[t]he record clearly shows that the judge considered

McKinney’s abusive childhood and its impact on his

behavior and ability to conform his conduct and

found it insufficiently mitigating to call for leniency.”

Id. 161a–162a.

F.

FEDERAL HABEAS PROCEEDINGS

McKinney alleged, for the first time in his federal

habeas petition, that the state courts failed to consider his PTSD mitigation and that they had required McKinney to establish a causal nexus between his mitigation and the offenses, in violation of

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

Tennard v. Dretke, 542 U.S. 274 (2004). See McKinney v. Ryan, No. 03-cv-00774, 2009 WL 2432738, at

*19–*22 (D. Ariz. Aug. 10, 2009).

The district court denied habeas relief. Applying

the Anti-terrorism and Effective Death Penalty Act’s

(AEDPA) standards, the court found it was “clear

from the record that the trial court and the Arizona

Supreme Court in its independent review of the

sentence considered the mitigation evidence presented by Petitioner’s witnesses.” Id. at *22. And the

court rejected McKinney’s causal-nexus argument,

concluding that the state courts had imposed no

barriers to considering mitigation and, in fact, had

11

explicitly considered what McKinney proffered and

had “accepted Dr. McMahon’s diagnosis of PTSD.”

Id. at *23. “The fact that the courts perceived the

lack of a relationship between the mitigating evidence and [McKinney’s] criminal conduct and therefore assigned less weight to the evidence than

[McKinney] believes was warranted does not constitute a constitutional violation.” Id.

A three-judge panel of the Ninth Circuit agreed

with the district court. McKinney v. Ryan, 730 F.3d

903, 914–921 (9th Cir. 2013) (McKinney III), rev’d en

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

(McKinney IV). The panel found, under AEDPA’s

standards, that the Arizona Supreme Court in affirming McKinney’s sentences had not unreasonably

applied Eddings and Lockett v. Ohio, 438 U.S. 586

(1978). McKinney III, 730 F.3d at 914–921. The

Ninth Circuit determined that neither the sentencing court nor the Arizona Supreme Court excluded

mitigation based on a causal-nexus test or otherwise.

Id.

The Ninth Circuit, however, heard the case en

banc. Pet. App. 12a–118a. By a slim, 6-5 majority,

the en banc court disagreed with the three-judge

panel and granted habeas relief as to McKinney’s

death sentences. Id. Examining 15 years of Arizona

Supreme Court capital-case opinions, the en banc

Ninth Circuit concluded that the Arizona Supreme

Court had systematically refused to consider noncausally connected mitigation, in violation of Eddings, despite the court never having expressly

articulated any such refusal. See id. 14a–16a, 28a–

31a, 36a–46a (collecting cases). In 2004, the en banc

Ninth Circuit continued, the Arizona Supreme Court

abandoned its unconstitutional test in reaction to

12

Tennard, and from that point forward permissibly

considered the lack of a causal nexus only to assess

the appropriate weight of mitigation. Id. 46a–47a.

Finally, the court concluded that the Arizona Supreme Court had applied its causal-nexus test in

McKinney’s case, relying on the state supreme

court’s 1) adoption of the sentencing judge’s factual

finding that McKinney’s PTSD did not affect his

conduct, 2) “additional factual conclusion” that

McKinney’s PTSD should have prompted him not to

commit murder, and 3) citation to State v. Ross, 886

P.2d 1354, 1363 (Ariz. 1994), in which the causalnexus test purportedly was articulated. Id. 50a–55a.

The Ninth Circuit granted conditional habeas relief

after finding that the error substantially or materially affected the sentencing verdict under Brecht v.

Abrahamson, 507 U.S. 519 (1993). Pet. App. 55a–

68a.

The five-judge en banc dissenting opinion exposed

the majority’s flawed reasoning, opining that the

majority opinion “wrongly smears the Arizona Supreme Court and calls into question every single

death sentence imposed in Arizona between 1989

and 2005 and our cases [in] which [we] have denied

habeas relief as to those sentences.” Id. 73a. The

dissent also noted the majority’s mischaracterization

of the Arizona Supreme Court’s independent review

of death sentences as “a new sentencing determination,” rather than as a review of what the sentencing

judge did, and the majority’s treatment of “McKinney’s trial-court sentencing hearing as irrelevant,

except insofar as the Arizona Supreme Court accepted [the judge’s] factual findings as its own.” Id. 83a–

85a. The dissent recognized that the Arizona Supreme Court had simply reviewed McKinney’s argu-

13

ment on appeal (that the sentencing judge failed to

consider the mitigation evidence), had rejected that

argument, and had independently reviewed the

sentences. Id. 84a–85a. The dissent further concluded that both the sentencing judge and the Arizona Supreme Court had complied with Eddings, even

under a de novo review. Id. 82a–113a.

Arizona filed a petition for writ of certiorari, which

this Court denied. See 137 S. Ct. 39 (2016). Pursuant to the Ninth Circuit’s mandate, the district court

issued a conditional writ of habeas corpus. That writ

read:

IT IS ORDERED that McKinney’s Writ of

Habeas Corpus is granted unless the State of

Arizona, within 120 days from the entry of

this Judgment, initiates proceedings either to

correct the constitutional error in McKinney’s death sentence or to vacate the sentence and impose a lesser sentence consistent

with the law.

McKinney v. Ryan, No. 03-cv-00774, Dkt. 84 (D. Ariz.

Oct. 6, 2016).

G.

POST-WRIT INDEPENDENT REVIEW

To correct the perceived constitutional error and

satisfy the conditional writ, Arizona asked the Arizona Supreme Court to conduct a new independent

review of the death sentences, without applying the

causal-nexus test the Ninth Circuit had identified.

JA 385–390. The Arizona Supreme Court granted

the motion. See Pet. App. 2a.

The Arizona Supreme Court thereafter again examined McKinney’s mitigation, making clear that it

was invoking the absence of a causal connection only

14

as a constitutionally permissible weighing mechanism to determine whether to give substantial

weight or some lesser amount of weight. Id. 4a–9a.

The court found the mitigation insufficiently substantial to warrant leniency in light of the weighty

aggravating factors for each murder. Id. The court

therefore affirmed McKinney’s death sentences. Id.

9a.

SUMMARY OF ARGUMENT

I. Because the Arizona Supreme Court never reopened direct review, and this case was long ago final,

Teague’s bar on retroactive application of new criminal procedure rules applies here, which means no

“current law” needed to be applied in the Arizona

Supreme Court and there is no reversible error.

The Arizona Supreme Court’s decision as to the

collateral nature of the independent review proceedings here is dispositive. A conditional habeas order

can never itself reopen state direct review. And the

conditional habeas order here was particularly

permissive—it offered Arizona the chance to initiate

proceedings to “correct the constitutional error,”

without mentioning mandatory resentencing or new

direct review. As such, the Arizona courts were left

to decide the proper procedures for correcting the

identified constitutional error. And the Arizona

Supreme Court turned to proceedings that it has

repeatedly concluded are not part of state court

direct review and do not reopen a conviction when

used in this precise procedural posture.

Irrespective of whether finality for retroactivity

purposes is ultimately a federal question, the finality

determination here still turns on a dispositive statelaw issue: whether the Arizona Supreme Court’s

15

post-writ, Eddings-related independent review was a

collateral proceeding or part of direct review. The

Court’s retroactivity standard looks to the contours

of state direct review to measure finality in the

present context. And the contours of state court

direct review is a state law question.

Petitioner overreaches by pointing to the phrase

“again capable of modification” in Jimenez v. Quarterman as setting the pertinent standard for finality.

That phrase in Jimenez was accompanied by a

crucial modifier: “again capable of modification

through direct appeal.” 555 U.S. at 120 (emphasis

added). That is no surprise. Using “again capable of

modification” as the test for whether proceedings are

direct or collateral in nature, without additional

modification or clarification, would deviate from the

court’s long-standing approach to finality and be

wildly over-inclusive.

Indeed, Jimenez is entirely consistent with the

conclusion that the Arizona Supreme Court determinations end the finality debate. Just as the Court in

Jimenez expressly accepted the Texas Court of

Criminal Appeals’ conclusion as to whether that case

was proceeding on a new direct appeal in state court,

the Court must accept the Arizona Supreme Court’s

conclusion and confirm that Teague governs here

such that no new rules of criminal procedure apply.

II. The Court should reject McKinney’s sweeping

request for mandatory trial-court resentencing for all

Eddings errors because, as ably demonstrated by the

record and prior proceedings here, such a rule is

unwarranted and would undermine the interests of

justice.

16

To announce a per se rule requiring trial-level resentencing for all Eddings errors would require the

Court to disavow prior suggestion that appellate

correction in the Eddings context was appropriate.

And automatic trial-court resentencing would fail to

acknowledge the damage to the interests of justice

that comes with sending a category of long-ago-final

convictions back for resentencing no matter the

possibility of remedying any error through a process

short of full trial-court proceedings.

A per se rule would be particularly inapt for a case

like this one, where there is a particularly robust

trial court mitigation record and the Ninth Circuit

placed the Eddings error squarely at the Arizona

Supreme Court. Here, the trial court produced a full

explication of thoughts, factual conclusions, credibility findings, and legal analysis, which was more than

adequate for post-writ Eddings error correction in

the Arizona Supreme Court.

Appellate error correction on such a record tracks

with existing authority and guidance. In Clemons,

this Court held that independent appellate reweighing can cure trial-level errors in capital sentencing;

that holding even more strongly supports independent appellate reweighing of existing mitigation and

aggravation for the same appellate court’s errors in

capital sentencing. And returning to the locus of the

identified error (the Arizona Supreme Court) for

error correction echoes the Court’s emphasis on

efficiently tailoring post-writ remedies in order to

place defendants in the same position they would

have been in the absence of the identified error.

While McKinney argues that the state courts’ purported causal nexus test created a “meaningful risk”

that the parties at sentencing tailored their eviden-

17

tiary presentation toward proving or disproving a

causal nexus, the record does not support such a

claim. Instead, as the en banc dissent well noted,

the record confirms that the Arizona Supreme Court

did not categorically exclude mitigation from consideration, meaning that, in the alternative, there is no

Eddings problem here and no need to remand for a

trial-court resentencing.

ARGUMENT

I.

BECAUSE THE ARIZONA SUPREME

COURT NEVER REOPENED DIRECT

REVIEW,

NO

NEW

CRIMINAL

PROCEDURE RULES APPLY

This case was long ago final and never reopened,

and so it falls within Teague’s bar on retroactive

application of new criminal procedure rules, which

means no “current law” needed to be applied in the

Arizona Supreme Court and there is no reversible

error. See Teague v. Lane, 489 U.S. 288, 310 (1989)

(“new constitutional rules of criminal procedure will

not be applicable to those cases which have become

final before the new rules are announced.”).

The conditional habeas order did not reopen direct

review as a matter of law or fact—the Arizona courts

were left to decide the proper procedures for correcting the identified constitutional error. And Arizona’s

highest court proceeded with a state-specific appellate procedure that it had already determined is not

part of state-court direct review when used in this

precise procedural posture. E.g., State v. Styers, 254

P.3d 1132, 1134 (Ariz. 2011) (Styers III). This statelaw conclusion is dispositive and cannot be overruled

because “state courts are the ultimate expositors of

18

state law.” Mullaney v. Wilbur, 421 U.S. 684, 691

(1975). Therefore, new, post-1996 criminal procedure rules were not applicable in the Arizona Supreme Court’s post-conditional-writ proceedings.

A.

THE CONDITIONAL HABEAS WRIT

HERE DID NOT ITSELF REOPEN

DIRECT REVIEW OR REQUIRE THE

ARIZONA COURTS TO DO SO

The conditional writ issued here by the district

court did not mandate reopening direct review. The

order was particularly permissive—it offered Arizona

the chance to initiate proceedings to “correct the

constitutional error,” without mentioning mandatory

resentencing or new direct review. McKinney v.

Ryan, No. 03-cv-00774, Dkt. 84 (D. Ariz. Oct. 6,

2016); see also Pet App. 12a–118a. Federal courts,

including the Ninth Circuit, readily condition writs

on resentencing. See, e.g., Phillips v. White, 851 F.3d

567, 583 (6th Cir. 2017) (requiring state

to resentence within 90 days or release); Libberton v.

Ryan, 583 F.3d 1147, 1174 (9th Cir. 2009) (remanding with instructions “to grant the state a reasonable

amount of time in which to resentence” petitioner).

But that was not done here. And this Court should

“not infer … conditions from silence.” Jennings v.

Stephens, 135 S. Ct. 793, 799 (2015); see also id.

(“Construing every federal grant of habeas corpus as

carrying an attendant list of unstated acts (or omissions) that the state court must perform (or not

perform) would substantially transform conditional

habeas corpus relief from an opportunity ‘to replace

an invalid judgment with a valid one,’ … to a general

19

grant of supervisory authority over state trial

courts.”).3

Moreover, a conditional habeas order can never

itself reopen state direct review. See Douglas v.

Jacquez, 626 F.3d 501, 504 (9th Cir. 2010) (“a habeas

court ‘has the power to release’ a prisoner, but ‘has

no other power’”; “‘it cannot revise the state court

judgment.’”). Federal courts reviewing state convictions have “broad discretion” to “delay the release of

a successful habeas petitioner in order to provide the

State an opportunity to correct the constitutional

violation found by the court.” Hilton v. Braunskill,

481 U.S. 770, 775 (1987). But this differs from a

federal court’s review of a federal conviction, which

includes “unlimited power to attach conditions to the

criminal proceedings on remand.” Henderson v.

Frank, 155 F.3d 159, 168 (3d Cir. 1998). “‘Other

than granting the writ of habeas corpus and imposing time limits in which the state must either release

McKinney’s citations to resentencing and sentence correction

cases (at 16) carry no weight here. See United States v. Hadden, 475 F.3d 652 (4th Cir. 2007) (vacating sentence pursuant

to language of Section 2255); State v. Fleming, 61 So.3d 399,

400 (Fla. 2011) (after defendant initiated state postconviction

proceedings, state decided to conduct a full resentencing); State

v. Kilgore, 216 P.3d 393, 395–396 (Wash. 2009) (state appellate

court dismissed two of seven counts while on direct review,

requiring the state trial court to correct the judgment and

sentence to reflect the reversed counts). None of these cases

support the conclusion that an appellate court ushers in

“current law” when correcting an appellate error without a

resentencing. And, notwithstanding the parade of horribles

offered by McKinney and Amici, there is no dispute that

vacating and resentencing here would require compliance with

“current law.”

3

20

the petitioner or correct the problem, the precise

remedy is generally left to the state.’” Woodfox v.

Cain, 789 F.3d 565, 569 (5th Cir. 2015).

The limits on federal habeas relief as to state convictions arise from basic tenets of federalism, as well

as the contours of the habeas statutes. Unlike 28

U.S.C. § 2255, Section 2254 provides no authority to

“vacate and set the judgment aside.” The court

sitting in a Section 2254 proceeding is guided by the

language of Section 2243, which authorizes the court

only “to dispose of habeas corpus matters ‘as law and

justice require.’” Hilton, 481 U.S. at 775. And this

authority is informed by federalism and “comity

among the co-equal sovereigns.” Gentry v. Deuth,

456 F.3d 687, 692 (6th Cir. 2006); see also Danforth

v. Minnesota, 552 U.S. 264, 279 (2008). It is perhaps

unsurprising then that “[d]istrict courts rightly favor

conditional grants, which provide states with an

opportunity to cure their constitutional errors.”

Gentry, 456 F.3d at 692.4

B.

THE ARIZONA SUPREME COURT’S

STATE-LAW DETERMINATION THAT

POST-CONDITIONAL-WRIT

INDEPENDENT REVIEW IS NOT PART

OF DIRECT REVIEW ENDS THE

RETROACTIVITY ANALYSIS

To address the identified constitutional error, the

Arizona Supreme Court turned to proceedings that it

has repeatedly concluded are not part of state court

direct review and do not reopen a conviction when

Given the special considerations governing Section 2254

cases, McKinney’s citations to Section 2255 cases and cases

arising solely within the federal courts (at 16, 24, and 27) are

particularly uninstructive.

4

21

used in this precise procedural posture (independent

review following an Eddings-based, conditional

federal habeas order). E.g., Styers III, 254 P.3d at

1134. The Court cannot upend the Arizona Supreme

Court’s conclusions, which are dispositive as to

retroactivity. See R.A.V. v. City of St. Paul, 505 U.S.

377, 381 (1992) (this court is bound by the state

court’s construction of state law).5

1. The Arizona Supreme Court Has Held

That Its Post-Conditional-Writ Independent Review Proceedings Are Not

Part of Direct Review

The Arizona Supreme Court has made two salient

state-law conclusions in the precise procedural

posture presented here. First, A.R.S. § 13-755 permits Arizona Supreme Court independent review in

collateral proceedings, not just direct proceedings.

Styers III, 254 P.3d at 1134 n.1 (“[N]othing in § 13755 limits our review to direct appeals.”); see also

Hedlund, 431 P.3d at 184–185 (confirming jurisdiction to conduct a second independent review in the

post-writ, collateral error-correction context under

This Court granting review of the Arizona Supreme Court’s

independent review does not answer whether the Arizona

Supreme Court proceedings were direct or collateral in nature.

See Wearry v. Cain, 136 S. Ct. 1002, 1008 (2016) (“This Court,

of course, has jurisdiction over the final judgments of state

postconviction courts, see 28 U.S.C. § 1257(a), and exercises

that jurisdiction in appropriate circumstances.”); see also Foster

v. Chatman, 136 S. Ct. 1737, 1742–1743 (2016) (certiorari

granted from state court habeas proceeding); Richardson v.

Gramley, 998 F.2d 463, 467 (7th Cir. 1993) (“The fact that

events occurring in the state court system after his conviction

has become final might entitle him to file another petition for

certiorari later on does not detract from the finality of his

conviction.”).

5

22

§ 13-755). Second, the type of post-writ, Eddingsrelated independent review at issue is a collateral

proceeding under state law that does not reopen

direct review. Styers III, 254 P.3d at 1133–1134

(case was final “[b]ecause Styers had exhausted

available appeals, his petition for certiorari had been

denied, and the mandate had issued” many years

earlier); see also Hedlund, 431 P.3d at 184 (reaffirming nature and scope of review under Styers III); Pet.

App. 1a–9a (citing Styers III; determining case was

long ago final).

The Arizona Supreme Court first announced these

conclusions in Styers III, 254 P.3d 1132. There, the

court interpreted A.R.S. § 13-755 as permitting a

second, collateral independent review by the court

after a conditional, Eddings-based federal habeas

order. Styers III, 254 P.3d at 1134 n.1. Given this

conclusion, Styers returned to federal habeas after

Styers III. Styers v. Ryan, No. 2:98-cv-02244, 2012

WL 3062799 (D. Ariz. July 26, 2012) (Styers V).

There, the federal district court denied unconditional

habeas relief, accepting the Arizona Supreme Court’s

conclusion as to the contours of state criminal procedure and explaining that “[i]n light of the court’s

pronouncement in Styers III that a new independent

review was authorized under state law, this Court

concludes that such review constituted ‘an adequate

proceeding before an appropriate tribunal.’” Styers V,

2012 WL 3062799 at *5. The Ninth Circuit affirmed,

noting that the Arizona Supreme Court in Styers III

had determined not only “whether an independent

review under A.R.S. § 13-755 is limited to direct

review,” but also “that Styers’s sentence remained

final at the time of the second independent review.”

Styers VI, 811 F.3d at 297 n.5, 298.

23

The Arizona Supreme Court recently reaffirmed

these state-law conclusions in Hedlund, 431 P.3d at

184. As Justice Bolick explained in his opinion for

the court, after an Eddings-related federal habeas

order, the Arizona Supreme Court performs a limited, collateral proceeding, which is focused on “correcting the constitutional error identified” by the

federal courts and does not reopen direct review or

require trial court remand and resentencing. Id.6

2. The Court Cannot Upend The Arizona

Supreme Court’s Dispositive Interpretation Of State Law

“This Court … repeatedly has held that state courts

are the ultimate expositors of state law.” Mullaney,

421 U.S. at 691; see also Johnson v. Fankell, 520 U.S.

911, 916 (1997) (“Neither this Court nor any other

federal tribunal has any authority to place a construction on a state statute different from the one

rendered by the highest court of the State.”); Schad

v. Arizona, 501 U.S. 624, 636 (1991) (“[W]e are not

free to substitute our own interpretations of state

statutes for those of a State’s courts.”).

This refusal to second-guess a state supreme

court’s conclusions as to that state’s own law is a

“proposition, fundamental to our system of federalism,” that applies equally in procedural and substantive contexts. Johnson, 520 U.S. at 916; see also

Clemons v. Mississippi, 494 U.S. 738, 747 (1990)

(this Court has no basis to dispute state court’s

A certiorari petition arising out of Hedlund is presently

pending before the Court. No. 19-5247.

6

24

interpretation of state law to decide whether to

affirm a death sentence).7

The decisions flowing from Styers III illustrate the

proper federal response to the Arizona Supreme

Court’s state-law conclusions. See Styers VI, 811

F.3d at 297 n.5 (“the question whether an independent review under A.R.S. § 13-755 is limited to direct

review is a question of statutory interpretation of an

Arizona statute,” “determined by Arizona’s highest

court,” which “held that ‘nothing in § 13-755 limits

our review to direct appeals.’”); Styers V, 2012 WL

3062799 at *5 (“In Styers III, the Arizona Supreme

Court noted that, although independent review is

normally conducted in an appeal from a death sentence, ‘nothing in § 13-755 limits our review to direct

appeals,’” and “[t]his Court is bound to follow the

decisions of a state supreme court on state law

matters.”).8

The extent of a state’s power to define the contours of its own

direct and collateral review proceedings is illustrated by the

state’s ability to choose whether to even provide appellate

review. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“There

is, of course, no constitutional right to an appeal”); Losh v.

Fabian, 592 F.3d 820, 824 (8th Cir. 2010) (“Federal law imposes

no obligation on a state to provide the right to a direct appeal

from a judgment of conviction … or the right to collateral

review of that judgment once it is final.”).

7

That other state courts might have reached different conclusions as to how their own criminal procedure rules function in

different contexts has no bearing on how the Court should

approach the pertinent Arizona Supreme Court conclusions

here. See, e.g., Fleming, 61 So.3d at 404 (discussing retroactivity after state court expressly considered defendant’s sentence

no longer final); Kilgore, 216 P.3d at 397–398 (interpreting

state specific appellate rule relating to finality of a decision of a

state appellate court). The Arizona Supreme Court’s decision is

the final word here.

8

25

The Eighth Circuit has also demonstrated the

proper response in a related context. In Losh v.

Fabian, the Eighth Circuit faced a retroactivity

question that turned on the nature of certain state

court appellate procedures, and the court accepted

the Minnesota Supreme Court’s determination as to

whether a particular type of state court criminal

procedure was part of direct or collateral review. 592

F.3d at 824. In reaching its conclusion, the Eighth

Circuit emphasized the primacy of state courts in

determining their own procedures’ nature:

Minnesota’s highest court is plainly competent to determine that a type of appellate review under its own law is not direct. That

authority is a natural correlate of “the discretion of the state to allow or not to allow such

a review” and, when providing a right to direct review, to impose a period of limitation

within which that right must be invoked.

Id.; see also id. at 825 (“federal courts of appeal,

including our own, have decided that state law

governs whether a state appellate review procedure

is direct or collateral for purposes of [AEDPA’s]

statute of limitations provision”; gathering cases as

to same).

And the First Circuit went even further in Foxworth v. St. Amand, 570 F.3d 414 (1st Cir. 2009).

There, where the finality of a state conviction was

dispositive as to “clearly established federal law,” the

First Circuit certified to the Massachusetts SJC the

question of “the date of finality.” Id. at 436–437.

26

3. McKinney Cannot Avoid The Arizona

Supreme Court’s Conclusions By Saying Finality Here Is Purely A Federal

Question

Irrespective of whether finality for retroactivity

purposes is ultimately a federal question, the finality

determination here still turns on a threshold, dispositive state-law issue: whether the Arizona Supreme

Court’s post-writ, Eddings-related independent

review was a collateral proceeding, or part of direct

review.

The Court’s retroactivity standard looks to the

contours of state direct review to measure finality in

the present context—as the Court explained in

Caspari v. Bohlen, “[a] state conviction and sentence

become final for purposes of retroactivity analysis

when the availability of direct appeal to the state

courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a

timely filed petition has been finally denied.” 510

U.S. 383, 390 (1994).

And the contours of state court direct review is a

state law question, which has been answered in the

present context by the Arizona Supreme Court. See

Styers VI, 811 F.3d at 297 n.5 (“the question whether

an independent review under A.R.S. § 13-755 is

limited to direct review is a question of statutory

interpretation of an Arizona statute,” “determined by

Arizona’s highest court”); see also Losh, 592 F.3d at

825 (“federal courts of appeal, including our own,

have decided that state law governs whether a state

appellate review procedure is direct or collateral for

purposes of [AEDPA’s] statute of limitations provision”).

27

Gonzalez v. Thaler, 565 U.S. 134 (2012), is not to

the contrary. Importantly, the question in Gonzalez

concerned interpreting finality in the context of

Section 2244’s limitation period, a context unrelated

to the issue now before the Court. See Clay v. United

States, 537 U.S. 522, 527 (2003) (“the precise meaning [of finality] depends on context.”). The Court

there made two chief determinations in deciding how

to properly measure the limitation period, neither of

which answers the choice-of-law question here or

undermines the power of the pertinent Arizona

Supreme Court decisions. First, when a petitioner

does not seek available direct review, Gonzalez holds

that the proper limitation measure is from “the

expiration of the time for seeking such review”

rather than “conclusion of direct review” (the other

available statutory prong). Gonzalez, 565 U.S. at

149. Second, Gonzalez holds that the Court will look

to state filing deadlines for measuring expiration of

opportunities for further state direct review, and

federal deadlines when measuring the time for

seeking certiorari. Id. at 152.

While the Court in Gonzalez refused to look to

state-by-state measures of the end of direct review in

measuring the Section 2244 limitation period, the

Court did so only in the context of choosing the

statutory “expiration of time for seeking” review test

as the proper measure of the limitation period instead of the “conclusion of direct review” test. Gonzalez, 565 U.S. at 151–153. Gonzalez does not contemplate what law governs the finality of a state

criminal conviction for retroactivity purposes. It also

does not reject state-specific determinations as to

whether a state proceeding is on direct as opposed to

collateral review.

28

McKinney does no better by pointing to the phrase

“again capable of modification” in Jimenez v. Quarterman. That phrase in Jimenez was accompanied

by a crucial modifier: “again capable of modification

through direct appeal.” 555 U.S. at 120 (emphasis

added). That is no surprise. Using “again capable of

modification” as the test for whether proceedings are

direct or collateral in nature, without additional

modification or clarification, would deviate from the

court’s long-standing approach to finality and be

wildly over-inclusive. For example, a federal sentence is capable of modification any time a federal

court sits in Section 2255 habeas review of a federal

conviction. Indeed, any such proceeding can lead to

the Court “vacating, setting aside, or correcting” the

sentence. 28 U.S.C. § 2255. And yet it is wellaccepted that new rules of criminal procedure do not

apply generally to either federal habeas proceedings

under Section 2255 or state collateral proceedings.

See Teague, 489 U.S. at 309–310.

Indeed, Jimenez is entirely consistent with the

conclusion that the Arizona Supreme Court’s determinations end the finality debate. See 555 U.S. 113

(2009). There, again, the Court considered finality

for purposes of Section 2244’s one-year limitation

period. And the Court reached a “narrow” decision—

when a state court grants “an out-of-time direct

appeal during state collateral review, but before the

defendant has first sought federal habeas relief, his

judgment is not yet ‘final’ for purposes of

§ 2244(d)(1)(A).” Id. at 121. In reaching this conclusion, this Court specifically noted that:

[W]e have previously held that the possibility

that a state court may reopen direct review

“does not render convictions and sentences

29

that are no longer subject to direct review

nonfinal[.]” We do not depart from that rule

here; we merely hold that, where a state

court has in fact reopened direct review, the

conviction is rendered nonfinal for purposes

of § 2244(d)(1)(A) during the pendency of the

reopened appeal.

Id. at 120 n.4.

The Court in Jimenez expressly accepted the Texas

Court of Criminal Appeals’ conclusion as to whether

the case was proceeding on a new direct appeal in

state court. Here, where the Arizona Supreme Court

has confirmed that the pertinent post-writ proceedings were not part of state-court direct review, the

Court must follow the Jimenez approach, accept the

Arizona Supreme Court’s conclusion that the proceedings were collateral (not direct), and confirm

that Teague governs here such that no new rules of

criminal procedure apply.9

II.

MANDATORY RESENTENCING FOR ALL

EDDINGS ERRORS IS UNWARRANTED

AND

WOULD

UNDERMINE

THE

INTERESTS

OF

JUSTICE,

AS

DEMONSTRATED BY THE RECORD HERE

McKinney asks for a sweeping statement—that all

Eddings errors be corrected by a trial-level resentencing, regardless of where in the proceedings the

McKinney argues that Hurst expands Ring’s holding (any

fact that increases a crime’s maximum potential punishment

must be found by a jury) to findings of mitigation and its

assessment. Pet. Br. 29–33. It is not necessary for the Court to

reach this issue to resolve the state-law finality question in

Arizona’s favor, although Arizona notes its disagreement with

this expansive reading of Hurst.

9

30

error occurred, the nature of the sentencing record

on which the supposed error occurred, or the possibility of a harmlessness conclusion.

The Court should reject this sweeping request.

Imposing such a per se rule would contradict this

Court’s suggestion that Eddings errors are subject to

harmless error review, and otherwise undermine

finality and the interests of justice. Moreover, the

record here starkly demonstrates why a mandatory

rule requiring trial-level resentencing in all Eddings

cases is unwarranted.

A.

A MANDATORY RESENTENCING RULE

WOULD

CONTRADICT

LANGUAGE

FROM PRIOR CASES AND UNDERMINE

THE INTERESTS OF JUSTICE

To announce a per se rule requiring trial-level resentencing for all Eddings errors would require the

Court to disavow its prior suggestion that appellate

correction in the Eddings context was appropriate.

In Hitchcock v. Dugger, the Court cited the availability of harmless-error review for an Eddings violation.

481 U.S. 393, 399 (1987) (sentence adjudged invalid

only after Court noted that “Respondent has made no

attempt to argue that [the Eddings] error was harmless”; “[i]n the absence of such a showing, our cases

hold that the exclusion of mitigating evidence of the

sort at issue here renders the death sentence invalid”). And the Court has similarly acknowledged the

importance of other types of appellate harmlessness

review in related contexts. See, e.g., Calderon v.

Coleman, 525 U.S. 141, 141–147 (1998) (court of

appeals erred by failing to apply Brecht to claim that

jury instruction may have misled jurors into believing they could not consider certain mitigation).

31

Moreover such a per se rule would constitute a

categorical deviation from Clemons. See 494 U.S.

748–749.

Automatic trial-court resentencing would also fail

to acknowledge the damage to the interests of justice

that comes with sending a category of long-ago-final

convictions back for resentencing no matter the

possibility of remedying any constitutional error

through a process short of full trial-court proceedings. Not only is unnecessary trial-level resentencing a waste of valuable resources that could be better

used providing timely due process for other defendants and victims, but, as Justice Harlan wellexplained in a related context, forcing states “to

relitigate facts buried in the remote past through

presentation of witnesses whose memories of the

relevant events often have dimmed” is a poor way to

do justice; “This very act of trying stale facts may

well, ironically, produce a second trial no more

reliable as a matter of getting at the truth than the

first.” Mackey v. United States, 401 U.S. 667, 691

(1971) (Harlan, J., concurring in the judgments in

part and dissenting in part).

B.

THE RECORD HERE CONTRADICTS

THE NEED FOR A MANDATORY

RESENTENCING REQUIREMENT

Trial-level resentencing might be an appropriate

Eddings remedy in some cases (e.g., where the error

occurred in the trial court and limited the sentencing

record), but the appropriateness of a per se rule is

contradicted by the record and the Arizona procedures presented here. It bears repeating that the

supposed Eddings error in this case did not stem

from the preclusion of mitigation evidence or the

32

failure to create an adequate sentencing record.

Instead, the supposed error involved the alleged

failure to consider (as a matter of law) extant record

evidence of PTSD in the Arizona Supreme Court

during de novo appellate review. McKinney bends

the history of this case to occlude that the trial court

built a robust factual record, including making a

finding as to the existence of McKinney’s PTSD.

Considering that case history, this is precisely the

type of case in which trial court resentencing (rather

than appellate court error correction) would be

unnecessary and likely produce a second hearing no

more reliable than the first.

1. The Identified Eddings Error Occurred At The Arizona Supreme Court,

Not The Trial Court

The Eddings dispute here turned on whether, on

an established, unchallenged sentencing record, the

Arizona Supreme Court (1) improperly applied a

causal nexus test and refused to consider certain

mitigation as a matter of law, or (2) properly considered causal connections in determining whether the

mitigation evidence should get substantial weight as

opposed to some lesser weight. The key language

from the Arizona Supreme Court’s opinion—the

“causal nexus test” identified by the en banc Ninth

Circuit—was as follows:

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 perceive, comprehend, or control his actions.

Pet. App. 54a (emphasis added).

33

In its 6-5 en banc opinion, the Ninth Circuit recognized that it was addressing: “whether the Arizona

Supreme Court applied its unconstitutional ‘causal

nexus’ test in affirming McKinney’s death sentence

on de novo review.” Id. 17a; see also id. 50a–51a

(looking only to Arizona Supreme Court’s de novo

sentencing analysis); id. 55a (concluding that Arizona Supreme Court’s application of causal nexus test

was contrary to clearly established federal law).

Indeed, in granting conditional habeas relief, the

Ninth Circuit en banc majority did not announce a

constitutional error by the sentencing judge. See id.

17a (“The precise question before us is whether the

Arizona Supreme Court applied its unconstitutional

‘causal nexus’ test in affirming McKinney’s sentence

on de novo review.”); id. 51a, 53a–55a (sentencing

judge’s special verdict as relevant “only to the degree

it was adopted or substantially incorporated by the

Arizona Supreme Court”); id. 84a (Bea, J., dissenting) (criticizing majority for treating sentencing

judge’s special verdict as generally irrelevant).10

10 The Ninth Circuit’s suggestion that sentencing judges,

bound by the Arizona Supreme Court, silently applied that

court’s alleged causal-nexus test in all cases, Pet. App. 67a–68a,

does not rebut the sentencing judge’s affirmation here that he

considered all mitigation, see supra 5–7. Moreover, since the

McKinney en banc opinion, Ninth Circuit panels have recognized that Arizona courts did not universally apply the alleged

causal-nexus test (contra the McKinney en banc opinion). See

Ramirez v. Ryan, 937 F.3d 1230, 1250 (9th Cir. 2019) (“Though

the Arizona Supreme Court reviewed Ramirez’s convictions in

1994, during the period that the Arizona Supreme Court was

applying a causal nexus requirement, the record here indicates

that mitigating evidence was not rejected as a matter of law. In

fact, the record compels the opposite conclusion.”); Greenway v.

Ryan, 866 F.3d 1094, 1095 (9th Cir. 2017) (“We said in McKinney that the Arizona courts had ‘consistently’ applied the

34

2. The Record Here Was More Than Adequate For Appellate Error Correction,

Which Differentiates This Case From

The Court’s Trial-Level Eddings Remands

Given the record, McKinney’s citations to cases

where the trial court rejected the defendant’s presentation of mitigation are inapposite. See Hitchcock,

481 U.S. at 395 (petitioner argued that “additional

evidence of mitigating circumstances had been

withheld” due to reasonable belief it would not be

considered); Skipper v. South Carolina, 476 U.S. 1,

3–4 (1986) (trial court excluded witness testimony

regarding defendant’s good behavior, ruling it inadmissible). Nor is it persuasive to cite cases where

faulty jury forms or instructions prevented state

courts from grasping what jurors thought of the

mitigation presented or the moral implications of the

death penalty in light of the facts. See Penry v.

Lynaugh, 492 U.S. 302, 320 (1989) (jury form prohibited jurors from considering all proffered mitigation

evidence); Mills v. Maryland, 486 U.S. 367, 385

(1988) (jury form and court instructions may have

prevented jurors from considering all mitigation).

The sentencing judge—the actual sentencer under

Arizona law at the time—did not restrict McKinney’s

presentation of mitigating evidence, limit his factual

development of mitigating factors, or refuse as a

matter of law to consider any mitigation. McKinney

had a full opportunity to develop his PTSD evidence:

he called Dr. McMahon as an expert witness and

several fact witnesses to discuss his unfortunate

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

that Arizona had always applied it.”).

35

childhood. JA 12–181, 241–258. He also filed a

lengthy sentencing memorandum, which the sentencing judge confirmed he had read and which also

addressed the PTSD mitigation. Id. 299–384; Pet.

App. 191a.

The judge thereafter made a credibility finding,

concluding that Dr. McMahon had more relevant

experience than the State’s rebuttal expert and that

his opinions were consequently entitled to “more

weight” than the State’s experts. JA 291. The

sentencing judge also discussed McKinney’s PTSD

evidence at length in his special verdict and accepted

the PTSD diagnosis as true. Pet. App. 187a–190a.

Indeed, the sentencing judge evaluated McKinney’s

childhood and resulting PTSD twice, as both statutory and nonstatutory mitigation. Id. 190a–192a. The

judge further affirmed that he had considered everything McKinney had proffered. Id. 192a (“and after

considering all of the mitigating circumstances, the

mitigating evidence that was presented by the defense in this case …”); see also Parker v. Dugger, 498

U.S. 308, 314 (1991) (“We must assume that the

trial judge considered all this evidence before passing

sentence. For one thing, he said he did.”).

In sum, the trial court produced a full explication of

thoughts, factual conclusions, credibility findings,

and legal analysis, which was more than adequate

for post-writ Eddings error correction.

3. Appellate Correction Of Appellate Error Is Supported By Clemons As Well

As The Need To Tailor Post-Writ Proceedings

In Clemons, 494 U.S. at 748, this Court held that

independent appellate reweighing can cure trial-level

36

errors in capital sentencing; that holding even more

strongly supports the conclusion that independent

appellate reweighing of existing mitigation and

aggravation can cure the same appellate court’s

errors in capital sentencing. The Court was clear in

Clemons that “nothing in appellate weighing or

reweighing of the aggravating and mitigating circumstances” is “at odds with contemporary standards of fairness,” “inherently unreliable,” or “likely to

result in arbitrary imposition of the death sentence.”

Clemons, 494 U.S. at 750.

Contrary to McKinney’s position, Clemons remains

good law as to appellate weighing of validly found

aggravation and mitigation. And Clemons’ reasoning

applies to the type of legal error being corrected

here—where the record is fully formed and the error

was failure to consider mitigation in the record, the

appellate court is no less capable of properly weighing aggravation and mitigation than when the Court

is asked to exclude aggravation. See, e.g., Goff v.

Bagley, 601 F.3d 445, 479 (6th Cir. 2010) (independent reweighing by Ohio supreme court satisfies

Clemons and permits appellate cure of trial-court

errors in both aggravation and mitigation).

In contrast, given the record, Caldwell v. Mississippi, 472 U.S. 320 (1985), cannot carry the weight

McKinney places on it. First, the holding of Caldwell

is discrete: “it is constitutionally impermissible to

rest a death sentence on a determination made by a

sentencer who has been led to believe that the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.” Id. at 328–

329. The discussion McKinney emphasizes from

Caldwell is dicta that explains the “reasons to fear

substantial unreliability” “when there are state-

37

induced suggestions that the sentencing jury may

shift its sense of responsibility.” Id. at 320–321.

Second, the Caldwell dicta has no bearing in a case

where the record includes a then-valid sentencer

making sentencing determinations in the first instance. Caldwell explains only how appellate courts

“may face certain difficulties in determining sentencing questions in the first instance.” Clemons, 494

U.S. at 754. And the Arizona Supreme Court was

not determining sentencing questions in the first

instance here—the court conducted a record-based

review that included the trial court’s appropriate

credibility findings. Pet. App. 3a, 5a–6a. Whatever

merit Caldwell’s dicta might have in a different

Eddings context, it has no bearing here in light of

the record and procedure before the Court.

Returning to the locus of the identified error (the

Arizona Supreme Court) for error correction is also

consistent with the Court’s emphasis on efficiently

tailoring post-writ remedies in order to place defendants in the same position they would have been in

absent the prior error. Sixth Amendment habeas

remedies are supposed to “be ‘tailored to the injury

suffered from the constitutional violation,’” while not

“‘unnecessarily infring[ing] on competing interests.’”

Lafler v. Cooper, 566 U.S. 156, 170 (2012). The

“remedy must ‘neutralize the taint’ of a constitutional violation, … while at the same time not grant a

windfall to the defendant or needlessly squander the

considerable resources the State properly invested in

the criminal prosecution.” Id. Applying that approach here supports Arizona Supreme Court correction of its own appellate Eddings error and is consistent with the growing expansion of the narrowtailoring approach beyond the Sixth Amendment

38

context. See Lujan v. Garcia, 734 F.3d 917, 933–934

(9th Cir. 2013) (finding “it sensible that the Court’s

[Sixth Amendment tailoring] guidance apply equally

to a Fifth Amendment remedy, as well”); Woods v.

Ryan, No. 2:13-cv-02518, 2015 WL 4555251, at *8 (D.

Ariz. July 28, 2015) (quoting Sixth Amendment

remedy guidance in the context of an Eighth

Amendment error); Styers V, 2012 WL 3062799 at *3

(same).

C.

MCKINNEY’S ATTACK ON THE RECORD

IS

INSUFFICIENT

AND

WOULD

WARRANT AT MOST A REMAND FOR

HARMLESS ERROR ANALYSIS AS TO

THE SCOPE OF THE MITIGATION

RECORD

McKinney argues (at 43–47) that the state courts’

purported causal nexus test created a “meaningful

risk” that the parties at sentencing tailored their

evidentiary presentation toward proving or disproving a causal nexus. But the record does not support

such a claim. Nor does McKinney identify any

evidence that counsel failed to present because of a

supposed causal-nexus requirement. Compare Pet.

Br. 44 (alleging that defense counsel and prosecutors

“structured their presentation of evidence to address

this test”), with Hitchcock, 481 U.S. at 395 (petitioner argued that “additional evidence of mitigating

circumstances had been withheld” due to reasonable

belief it would not be considered). And McKinney in

fact argued that his PTSD was mitigating independent of any explanatory relationship, suggesting that

he did not tailor his presentation in a way to minimize non-connected mitigation. Pet. App. 69a. Most

importantly, the Ninth Circuit found no Eddings

39

error in the trial court and did not issue the writ

based on any such error. The Arizona Supreme

Court was required to, and did, correct only the

alleged error on which the writ was issued.

Further, while the parties highlighted the causal

relationship (or lack thereof) between McKinney’s

PTSD and the two murders he committed, e.g., JA

121–130, that approach remains reasonable in the

face of the Ninth Circuit’s en banc decision, because

a sentencer generally affords significant weight to

mitigation that has a causal relationship to—or

explains—the crime.

At most, McKinney confirms that, while no evidence was excluded or not submitted in the trial

court due to the supposed Eddings error, he intends

to expand any resentencing to include new material

that could never have been offered in the first sentencing proceedings. Pet. Br. 45–47. McKinney

contends that the evidentiary portion of his sentencing proceeding should be reopened merely because—

as inevitably happens—scientific advances have

occurred. Id. 46. Yet this does not replace a claim of

excluded evidence at the time of the Eddings error.

And McKinney has offered no explanation for how

allowing this ex-post supplementation in light of a

historical legal error would not be a windfall. To the

contrary, courts have rejected this approach in

related contexts. See Commonwealth v. LeFave, 714

N.E.2d 805, 813 (Mass. 1999) (“Undoubtedly, recent

research has broadened the scientific community’s

understanding of the effects of suggestive questioning. We are faced, however, with the conflict between the constantly evolving nature of science and

the doctrine of finality. In weighing these competing

factors along with the interests of justice, we have

40

concluded that expert testimony may not be considered newly discovered for purposes of a new trial

motion simply because recent studies may lend more

credibility to expert testimony that was or could have

been presented at trial.”); see also State v. Harper,

823 P.2d 1137, 1143 (Wash. App. 1992) (quotations

omitted) (“[T]his strikes us as a classic case: the

defendant loses, then hires a new lawyer, who hires

a new expert, who examines the same evidence and

produces a new opinion. We cannot accept this as a

basis for a new trial.”).

D.

ALTERNATIVELY,

THE

COURT

SHOULD

CORRECT

THE

NINTH

CIRCUIT’S CONFLATED READING OF

ARIZONA CASE LAW AND CONFIRM

THAT THERE WAS NO EDDINGS

ERROR HERE

The Ninth Circuit granted limited habeas relief

because, in its (erroneous) view, the Arizona Supreme Court’s language in 1996 represented a causal

nexus test that categorically barred (as a matter of

law) consideration of mitigating evidence in the

court’s first independent review. Pet. App. 12a–55a.

The Ninth Circuit concluded that, when the Arizona

Supreme Court referred to the “weight” of mitigation

as measured by its causal nexus to the offense, that

constituted treating the pertinent mitigation as

irrelevant as a matter of law. Id. 53a–55a. The

Ninth Circuit’s slim en banc majority did this over a

vigorous dissent. See generally id. 68a–118a. And it

did so notwithstanding that the highlighted Arizona

Supreme Court language made clear by its own

terms that the absence of a causal nexus related only

to weight for the mitigation (e.g., substantial or

41

insubstantial) and was not a bar on consideration as

a matter of law. Id. 54a.

As the en banc dissent well noted, the Arizona Supreme Court did not categorically exclude mitigation

by using language that referred to the “weight” of

mitigation. The Arizona Supreme Court’s language

makes clear by its own terms that the causal nexus

consideration was being used to determine the

appropriate weight for the mitigation and not as a

bar on consideration as a matter of law. As such,

there was never any Eddings problem here and there

is no need to remand for a trial-court resentencing.

The Eighth Amendment requires only that mitigation be considered and does not dictate the weight

any particular mitigation should receive—a sentencer must be free to consider relevant mitigation,

but may determine how much weight to give that

mitigation in the sentencing calculus. See Eddings,

455 U.S. at 114–115 (sentencer may determine

weight mitigation deserves); Harris v. Alabama, 513

U.S. 504, 512 (1995) (“[T]he Constitution does not

require a State to ascribe any specific weight to

particular factors, either in aggravation or mitigation, to be considered by the sentencer.”).

42

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment of the Arizona Supreme Court.

Respectfully submitted.

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Division Chief

ORAMEL H. (O.H.) SKINNER

Solicitor General

Counsel of Record

LACEY STOVER GARD

Chief of Capital Litigation

GINGER JARVIS

LAURA CHIASSON

Unit Chiefs, Capital Litigation

KATE B. SAWYER

Assistant Solicitor General

KATHERINE H. JESSEN

Assistant Attorney General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

o.h.skinner@azag.gov

Counsel for Respondent