Reply Brief — James Erin McKinney, Petitioner v. Arizona

No. 18-1109

IN THE

Supreme Court of the United States

_________

JAMES ERIN MCKINNEY,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

_________

On Writ of Certiorari to the

Arizona Supreme Court

_________

REPLY BRIEF FOR PETITIONER

_________

AMY L. MARSHAK

JONATHAN L. BACKER

JOSHUA A. GELTZER

MARY B. MCCORD

INSTITUTE FOR CONST.

ADVOCACY AND PROTECTION

Georgetown University

Law Center

600 New Jersey Ave., N.W.

Washington, D.C. 20001

(202) 661-6728

SHARMILA ROY

P.O. Box 441

Laveen, AZ 85339

(602) 930-2690

NEAL KUMAR KATYAL

Counsel of Record

ERIN R. CHAPMAN

MICHAEL J. WEST

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

KATHERINE B. WELLINGTON

HOGAN LOVELLS US LLP

125 High St., Suite 2010

Boston, MA 02110

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

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

ARGUMENT ............................................................... 3

I.

II.

THE ARIZONA SUPREME COURT

WAS

REQUIRED

TO

APPLY

CURRENT LAW WHEN WEIGHING

THE

MITIGATING

AND

AGGRAVATING

EVIDENCE

IN

MCKINNEY’S CASE ........................................ 3

A.

The Arizona Supreme Court

Applied

Federal

Law

To

Determine Whether McKinney’s

Case Is Final ............................................. 3

B.

Finality Is A Question Of Federal

Law ............................................................ 5

C.

As A Matter Of Federal Law, The

Arizona

Supreme

Court

Reopened

Direct

Review,

Requiring

It

To

Remand

McKinney’s

Case

For

Resentencing By A Jury ........................... 7

D.

The State’s Approach To Finality

Undermines The Rule Of Law ............... 12

THE

PROPER

REMEDY

FOR

EDDINGS

ERROR

IS

RESENTENCING IN THE TRIAL

COURT ............................................................ 14

ii

TABLE OF CONTENTS—Continued

Page

A.

The

State’s

Discussion

Of

Harmless

Error

Review

Is

Irrelevant To This Case.......................... 14

B.

The Ninth Circuit Properly Held

That Both The State Trial Court

And The Arizona Supreme Court

Committed Eddings Error ..................... 15

C.

This Court Has Repeatedly Held

That The Proper Remedy For

Eddings Errors Is Resentencing ............ 19

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Bullington v. Missouri,

451 U.S. 430 (1981) .............................................. 23

Burrell v. United States,

467 F.3d 160 (2nd Cir. 2006) ............................... 11

Burton v. Stewart,

549 U.S. 147 (2007) .............................................. 10

Caldwell v. Mississippi,

472 U.S. 320 (1985) .............................................. 20

Carey v. Saffold,

536 U.S. 214 (2002) ................................................ 8

Clay v. United States,

537 U.S. 522 (2003) ................................................ 7

Clemons v. Mississippi,

494 U.S. 738 (1990) .............................................. 20

Danforth v. Minnesota,

552 U.S. 264 (2008) ................................................ 6

Dep’t of Banking of Neb. v. Pink,

317 U.S. 264 (1942) ................................................ 8

Eddings v. Oklahoma,

455 U.S. 104 (1982) ...................................... passim

Foster v. Chatman,

136 S. Ct. 1737 (2016) .......................................... 22

Gonzalez v. Thaler,

565 U.S. 134 (2012) ................................................ 7

Griffith v. Kentucky,

479 U.S. 314 (1987) ...................................... passim

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Hitchcock v. Dugger,

481 U.S. 393 (1987) ........................................ 20, 21

Hurst v. Florida,

136 S. Ct. 616 (2016) ............................................ 12

Jimenez v. Quarterman,

555 U.S. 113 (2009) .......................................... 8, 10

Jones v. Barnes,

463 U.S. 745 (1983) ................................................ 8

Linkletter v. Walker,

381 U.S. 618 (1965) ................................................ 6

Mackey v. United States,

401 U.S. 667 (1971) .......................................... 6, 10

Michigan v. Long,

463 U.S. 1032 (1983) .............................................. 5

Mills v. Maryland,

486 U.S. 367 (1988) .................................. 14, 18, 19

Mitchell v. United States,

526 U.S. 314 (1999) ................................................ 9

Montana v. United States,

440 U.S. 147 (1979) ........................................ 14, 18

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) .............................................. 7

Nelson v. Quarterman,

472 F.3d 287 (5th Cir. 2006) ................................ 15

Parker v. Dugger,

498 U.S. 308 (1991) .......................................... 9, 17

Penry v. Lynaugh,

492 U.S. 302 (1989) .............................. 2, 18, 19, 21

v

TABLE OF AUTHORITIES—Continued

Page(s)

Ramirez v. Ryan,

937 F.3d 1230 (9th Cir. 2019) .............................. 15

Richfield Oil Corp. v. State Bd. of Equalization,

329 U.S. 69 (1946) .................................................. 8

Ring v. Arizona,

536 U.S. 584 (2002) ...................................... passim

Ryan v. McKinney,

137 S. Ct. 39 (2016) .............................................. 18

State v. Bible,

858 P.2d 1152 (Ariz. 1993) ................................... 22

State v. Bocharski,

189 P.3d 403 (Ariz. 2008) ..................................... 22

State v. Fleming,

61 So. 3d 399 (Fla. 2011) ............................... 10, 13

State v. Hedlund,

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

State v. Kilgore,

216 P.3d 393 (Wash. 2009) .................................. 10

State v. Ring,

65 P.3d 915 (Ariz. 2003)....................................... 12

State v. Ross,

886 P.2d 1354 (Ariz. 1994) ............................. 16, 19

State v. Slemmer,

823 P.2d 41 (Ariz. 1991)..................................... 4, 5

State v. Styers,

254 P.3d 1132 (Ariz. 2011) ..................... 4, 9, 21, 23

State v. Wallace,

773 P.2d 983 (Ariz. 1989) ..................................... 16

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Teague v. Lane,

489 U.S. 288 (1989) .............................................. 13

Teas v. Endicott,

494 F.3d 580 (7th Cir. 2007) .................................. 8

Tennard v. Dretke,

542 U.S. 274 (2004) .............................................. 19

United States v. Flack,

941 F.3d 238 (6th Cir. 2019) ................................ 11

United States v. Hadden,

475 F.3d 652 (4th Cir. 2007) ................................ 10

United States v. Schooner Peggy,

5 U.S. (1 Cranch) 103 (1801) ............................. 5, 6

Wall v. Kholi,

562 U.S. 545 (2011) ................................................ 8

Walton v. Arizona,

497 U.S. 639 (1990) .............................................. 16

Yates v. Aiken,

484 U.S. 211 (1988) ................................................ 9

STATUTES:

Ariz. Rev. Stat. Ann. § 13-755 ................................ 11

Ariz. Rev. Stat. Ann. § 13-4032 .............................. 23

RULES:

Sup. Ct. R. 15.2 ....................................................... 14

Ariz. R. Crim. P. 31.22(c) .......................................... 9

IN THE

Supreme Court of the United States

_________

No. 18-1109

_________

JAMES ERIN MCKINNEY,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

_________

On Writ of Certiorari to the

Arizona Supreme Court

_________

REPLY BRIEF FOR PETITIONER

_________

INTRODUCTION

James McKinney was sentenced to death by a

judge who did not consider relevant mitigating

evidence at his sentencing hearing, in violation of

current law. His sentence was upheld by the Arizona

Supreme Court, which did not consider relevant

mitigating evidence when affirming his sentence, in

violation of current law. And his sentence was

reviewed more than 20 years later by the Arizona

Supreme Court, which affirmed his sentence without

remanding for resentencing by a jury, in violation of

current law. McKinney has never had a sentencing

proceeding that complied with the law in effect at the

(1)

2

time of that proceeding. That is all he seeks in this

appeal.

The State asserts that McKinney can be put to

death without having to comply with this Court’s

decisions that made his sentencing unconstitutional.

The State’s argument ultimately amounts to a claim

that it is a matter of state law whether this Court’s

precedents apply in state court, so the Court cannot

review the state court’s ruling. See Resp. Br. 20-29.

This Court has long held, however, that it is a matter

of federal law whether a decision of the Court applies

in a state court proceeding, and the proceedings

below are no exception. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Under current law,

McKinney is entitled to resentencing by a jury.

The State also argues that the state trial court and

Arizona Supreme Court did consider the mitigating

evidence of McKinney’s PTSD after all, and that he

is not entitled to resentencing. See Resp. Br. 29-41.

This Court should not disturb the Ninth Circuit’s

considered judgment on this issue, which has preclusive effect. The Court’s longstanding precedents,

moreover, confirm that the only remedy for Eddings

error is resentencing in the trial court. See, e.g.,

Penry v. Lynaugh, 492 U.S. 302, 328 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S.

304 (2002). The Court should remand McKinney’s

case for resentencing.

3

ARGUMENT

I. THE ARIZONA SUPREME COURT WAS

REQUIRED TO APPLY CURRENT LAW

WHEN WEIGHING THE MITIGATING AND

AGGRAVATING EVIDENCE IN

MCKINNEY’S CASE.

The State takes the untenable position that it is up

to the Arizona Supreme Court to decide whether this

Court’s precedents govern state court proceedings.

The Court should reject that position. First, the

Arizona Supreme Court applied federal law to determine whether current law applied to the proceedings below, and this Court may properly review that

conclusion. Second, whether this Court’s precedents

apply to a state court proceeding is governed by

“basic norms of constitutional adjudication,” not

state law. Griffith, 479 U.S. at 322. Under federal

law, the Arizona Supreme Court erred by refusing to

remand McKinney’s case for resentencing.

A. The Arizona Supreme Court Applied Federal Law To Determine Whether McKinney’s Case Is Final.

The State argues that state law determines whether this Court’s precedents applied to the proceedings

below. See Resp. Br. 21-24. The Court need not

address that question. Even if a state court is permitted to adopt a state-specific approach, the Arizona

Supreme Court expressly applied federal law when

analyzing whether McKinney was entitled to the

benefit of Ring v. Arizona, 536 U.S. 584 (2002).

In the proceedings below, McKinney argued that he

is entitled to resentencing by a jury under Ring. The

Arizona Supreme Court rejected that argument,

4

concluding that “[i]ndependent review is warranted

here because McKinney’s case was ‘final’ before the

decision in Ring.” Pet. App. 3a-4a. To support that

conclusion, the court cited its earlier decision in State

v. Styers, 254 P.3d 1132 (Ariz. 2011). In Styers, the

Arizona Supreme Court relied on federal law to

decide whether Ring applies when correcting an

Eddings error.

Styers first cited this Court’s decision in Griffith for

the proposition that new “rules of criminal procedure” apply “retroactively to non-final cases pending

on direct review.” Styers, 254 P.3d at 1133. The

court then quoted Griffith’s statement that a case is

final when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the

time for a petition for certiorari elapsed or a petition

for certiorari finally denied.” Id. (quoting 479 U.S. at

321 n.6). Applying Griffith, the Arizona Supreme

Court concluded that “[b]ecause Styers has exhausted available appeals, his petition for certiorari had

been denied, and the mandate had issued almost

eight years before Ring was decided, his case was

final, and he therefore is not entitled to have his case

reconsidered in light of Ring.” Id. at 1133-34.

The decision below rests on the same federal-law

analysis. See Pet. App. 3a-4a. To the extent there is

any dispute on that issue, moreover, the Arizona

Supreme Court has expressly adopted federal law on

finality. In State v. Slemmer, 823 P.2d 41 (Ariz.

1991), the court held that it would be “mischievous

and a disservice to principles of federalism” to “apply

different retroactivity rules,” depending on whether

a question is governed by state or federal law. Id. at

49. The Arizona Supreme Court held that as a

5

matter of state law, it would “adopt and apply the

federal retroactivity analysis.” Id. Thus, even if the

Arizona Supreme Court could have adopted a statespecific approach, it has not done so.

When “a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with

the federal law,” the Court “will accept as the most

reasonable explanation that the state court decided

the case the way it did because it believed that

federal law required it to do so.” Michigan v. Long,

463 U.S. 1032, 1040-41 (1983). The most reasonable

explanation (and the only explanation) for the decision below is that the Arizona Supreme Court believed that under Griffith, it was required to hold

that Ring did not apply to its review of McKinney’s

sentence. Indeed, the State in its brief in opposition

agreed with this interpretation of the decision below.

See Opp. 5-7. This Court is permitted to review the

decision below.

B. Finality Is A Question Of Federal Law.

Whether a new rule of federal law applies in a state

or federal court proceeding has always been a matter

of federal law. Chief Justice Marshall examined this

issue in United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801), which addressed whether a new

treaty applies on appeal, or whether an appeal is

instead governed by the law in effect at the time of

the lower court decision. Id. at 109-110. Chief

Justice Marshall looked to the Constitution to answer that question, concluding that the “constitution

of the United States declares a treaty to be the

supreme law of the land,” and that the treaty’s

“obligation on the courts of the United States must

be admitted.” Id. at 109. “If the law be constitution-

6

al,” Chief Justice Marshall held, “I know of no court

which can contest its obligation.” Id. at 110.

In Linkletter v. Walker, 381 U.S. 618 (1965), the

Court adopted a case-by-case approach to determining whether new rules of constitutional law applied

in state and federal court proceedings, concluding

that it was up to the Court to “weigh the merits and

demerits in each case.” Id. at 629. Justice Harlan

famously criticized this approach in his separate

opinion in Mackey v. United States, 401 U.S. 667

(1971), explaining that “the Court’s assertion of

power to disregard current law in adjudicating cases

before us that have not already run the full course of

appellate review, is quite simply an assertion that

our constitutional function is not one of adjudication

but in effect of legislation.” Id. at 679 (Harlan, J.).

In Griffith, the Court agreed with Justice Harlan,

holding that “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all

cases, state or federal, pending on direct review or

not yet final.” 479 U.S. at 328. The Court explained

that the “failure to apply a newly declared constitutional rule to criminal cases pending on direct review

violates basic norms of constitutional adjudication,”

including Article III’s limitation on the Court’s

jurisdiction to decide “ ‘cases’ and ‘controversies.’ ”

Id. at 322.

Because the Court “cannot hear each case pending

on direct review,” the Court fulfills its “judicial

responsibility by instructing” state and federal courts

“to apply the new rule retroactively to cases not yet

final.” Id. at 323. “There is no dispute that Griffith

is fully binding on States * * * .” Danforth v. Minnesota, 552 U.S. 264, 299 (2008) (Roberts, C.J., dissent-

7

ing). In Montgomery v. Louisiana, 136 S. Ct. 718

(2016), the Court reiterated that point, holding that

“States may not disregard a controlling, constitutional command in their own courts.” Id. at 727

(rejecting amicus’s argument that a “State’s plenary

control” over its own proceedings allows it to ignore

federal law).

To the extent lower courts have reached contrary

conclusions, see Resp. Br. 24-25, the Court should

reject those decisions as inconsistent with the

Court’s precedent. As explained below, Respondents’

position would permit a State to relabel a proceeding

collateral, and thereby evade the dictates of Article

III and this Court’s decisions. Our Constitution

deals in substance, not form, and a state court cannot simply slap a label onto a proceeding to deny a

criminal defendant his constitutional rights.

C. As A Matter Of Federal Law, The Arizona

Supreme Court Reopened Direct Review,

Requiring It To Remand McKinney’s Case

For Resentencing By A Jury.

1. In Griffith, the Court held that current law applies to “all cases, state or federal, pending on direct

review or not yet final.” 479 U.S. at 328. A case is

final when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the

time for a petition for certiorari elapsed or a petition

for certiorari finally denied.” Id. at 321 n.6. Contrary to the State’s assertions, see Resp. Br. 26-27, this

Court has repeatedly applied this uniform federal

definition of finality, rejecting “state-by-state definitions of the conclusion of direct review.” Gonzalez v.

Thaler, 565 U.S. 134, 152 (2012); see Clay v. United

States, 537 U.S. 522, 527 (2003) (recognizing that

8

finality has a “long-recognized, clear meaning” under

Griffith).

Once a case becomes final, it does not always remain final. In Jimenez v. Quarterman, 555 U.S. 113

(2009), the Court recognized that a state court may

“reopen direct review,” rendering a case non-final.

Id. at 120 n.4. Whether a state court has reopened

direct review depends on the character—not the

label—of the state court proceedings. When it comes

to finality, “[t]he designation given the judgment by

state practice is not controlling.” Richfield Oil Corp.

v. State Bd. of Equalization, 329 U.S. 69, 72 (1946);

see also Dep’t of Banking of Neb. v. Pink, 317 U.S.

264, 268 (1942) (per curiam) (similar). Instead, this

Court “look[s] to how a state procedure functions.”

Carey v. Saffold, 536 U.S. 214, 223 (2002).

In Wall v. Kholi, 562 U.S. 545 (2011), the Court

noted that a state post-conviction proceeding could

be “in fact part of direct review” because it functions

as a direct appeal. Id. at 555 n.3. Judge Easterbrook has similarly held that “state terminology may

affect how states conduct their internal processes but

cannot be conclusive on a question of national law.”

Teas v. Endicott, 494 F.3d 580, 582 (7th Cir. 2007).

That makes sense: A state court cannot avoid a

controlling constitutional command by labeling a

proceeding “collateral” review.1

1

The State argues that because there is no constitutional right

to appeal under Jones v. Barnes, 463 U.S. 745, 751 (1983), the

State has the “power to define the contours of its own direct and

collateral review proceedings.” Resp. Br. 24 n.7. But Jones is

not a death penalty case, and “meaningful appellate review”

plays a “crucial role” in “ensuring that the death penalty is not

9

In the decision below, the Arizona Supreme Court

performed the exact same review that it performed in

its first direct review of McKinney’s sentence. It

addressed the same question. Compare JA7 (Dkt.

79), with Pet. App. 138a. It used the same standard

of review. Compare Pet. App. 4a, with id. at 138a139a. It heard the case on the same docket number.

See JA1. And, after it ruled, it stayed its mandate

under Arizona Rule of Criminal Procedure 31.22(c)

until the time expired for filing a certiorari petition

“challenging the decision affirming the defendant’s

conviction or sentence on direct appeal.” Ariz. R.

Crim P. 31.22(c)(1)(A) (emphasis added); see JA10

(Dkt. 111).2

By conducting a full reexamination of the mitigating and aggravating evidence in McKinney’s case,

the Arizona Supreme Court reopened direct review.

Assessing “the weight to be given relevant mitigating

evidence” is part of sentencing. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). And sentencing is

undisputedly “part of the criminal case.” Mitchell v.

United States, 526 U.S. 314, 328 (1999). Indeed,

imposed arbitrarily or irrationally.” Parker v. Dugger, 498 U.S.

308, 321 (1991). Where a state considers the merits of a federal

claim, moreover, “it has a duty to grant the relief that federal

law requires.” Yates v. Aiken, 484 U.S. 211, 218 (1988).

2

The State claims that the independent review below was a

collateral proceeding under state law. See Resp. Br. 21-22. But

the Arizona Supreme Court has not taken a clear position on

that issue. In Styers, the Arizona Supreme Court noted merely

that independent review is not limited to “direct appeals.” 254

P.3d at 1134 n.1. And neither the decision below, nor State v.

Hedlund, 431 P.3d 181 (Ariz. 2018), address this issue. See id.

at 184-185; Pet. App. 3a-4a.

10

without a sentence, a conviction cannot be final

because “[t]he sentence is the judgment.” Burton v.

Stewart, 549 U.S. 147, 156 (2007) (per curiam)

(internal quotation marks omitted). That is particularly true here, given that the proceeding below was

the first to consider evidence of McKinney’s PTSD as

part of the sentencing calculus. Where a court

exercises discretion to correct a sentence or conduct a

resentencing, current law applies. See, e.g., United

States v. Hadden, 475 F.3d 652, 664, 670-671 (4th

Cir. 2007); State v. Fleming, 61 So. 3d 399, 407 (Fla.

2011) (applying Griffith); State v. Kilgore, 216 P.3d

393, 398 & n.10 (2009) (applying Jimenez).3

2. The policy arguments proffered by the State’s

amici are not persuasive.

Amici argue that if

McKinney’s position is correct, it would mean that

every time a federal court grants habeas relief, a

state court must conduct further proceedings. E.g.,

Amicus Br. of Utah et al. 16-17. As Justice Harlan

recognized, however, the purpose of habeas corpus is

to provide an avenue in appropriate circumstances

“for upsetting judgments that have become otherwise

final.” Mackey, 401 U.S. at 682-683 (Harlan, J.). In

such circumstances, additional proceedings may be

required.

Amici further contend that courts should not be

required to conduct extensive proceedings to correct

3

The State claims that the Ninth Circuit’s conditional writ of

habeas corpus did not reopen direct review. See Resp. Br. 1820. As McKinney argued, however, it was the Arizona Supreme

Court that reopened direct review by weighing mitigating and

aggravating evidence to determine whether a death sentence is

warranted. See Pet. Br. 21-29.

11

sentencing errors. See Amicus Br. of Utah et al. 1617. But courts are not required to conduct extensive

proceedings when making ministerial corrections to

sentences. See Burrell v. United States, 467 F.3d

160, 161 (2d Cir. 2006) (Sotomayor, J.); cf. United

States v. Flack, 941 F.3d 238, 241 (6th Cir. 2019)

(Kethledge, J.) (distinguishing between the correction of “technical” errors and the reevaluation of a

defendant’s sentence). And in any event, the question in this case is not whether courts are required to

conduct proceedings to correct sentencing errors; it is

instead whether courts are required to apply current

law when correcting those errors.

Amici also argue that McKinney seeks a broad

ruling that would require state courts to reconsider

every aspect of a criminal proceeding once those

proceedings are reopened. See Amicus Br. of Utah et

al. 15. McKinney’s position, however, is a narrow

one. Here, the Arizona Supreme Court reopened

direct review to reconsider McKinney’s sentence. It

was thus required to apply current law to that sentencing inquiry, which included reviewing the mitigating and aggravating evidence, and weighing that

evidence to determine whether a death sentence is

warranted. See Ariz. Rev. Stat. Ann. § 13-755(A)-(B);

Pet. App. 4a. Under current law, a court cannot rely

on aggravating evidence found by a judge as part of

its sentencing calculus. See infra p. 12. A court

similarly cannot weigh mitigating and aggravating

evidence to determine whether a death sentence is

warranted. See id. Because the Arizona Supreme

Court could not conduct independent review without

violating current law, it was required to remand

McKinney’s case for resentencing by a jury.

12

3. The State does not dispute that under current

law, McKinney is entitled to resentencing by a jury.

See Resp. Br. 20-29. McKinney’s original sentencing

did not comply with Ring and Hurst v. Florida, 136

S. Ct. 616 (2016), because it was conducted by a

judge. See Pet. Br. 30-31. The proceeding below

similarly did not comport with Ring and Hurst,

because the Arizona Supreme Court—rather than a

jury—made the “critical” finding that the mitigating

evidence did not outweigh the aggravating evidence,

and in doing so relied on aggravating evidence found

by a judge. Hurst, 136 S. Ct. at 622. McKinney is

thus entitled to resentencing.

The State notes, in a footnote, that it “disagree[s]”

with McKinney’s position that Ring and Hurst require juries to find mitigating evidence, yet it provides no explanation for its position. Resp. Br. 29

n.9. In Hurst, the Court held that the “Sixth

Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death.” 136 S.

Ct. at 619. To impose the death penalty in Arizona,

the sentencer must find that the mitigating evidence

does not outweigh the aggravating evidence. See

State v. Ring, 65 P.3d 915, 943 (Ariz. 2003). Here,

the Arizona Supreme Court made that sentencing

determination, in violation of Ring and Hurst.

D. The State’s Approach To Finality Undermines The Rule Of Law.

The State’s position fundamentally undermines the

rule of law.

First, if it is up to each State to determine when

direct review is reopened, then States would have

the power to flout federal law by labeling quintessential direct review proceedings “collateral” review.

13

The State suggests that “there is no dispute that

vacating and resentencing here would require compliance with current law.” Resp. Br. 19 n.3 (internal

quotation marks omitted). But the State’s position in

this case permits exactly that result. The Arizona

Supreme Court’s decision to ignore current law in

McKinney’s case is a straightforward example of a

state court refusing to apply this Court’s precedents

where they would otherwise govern. Amici cite

numerous other examples where, under the State’s

reasoning, courts could conduct entirely new proceedings under overruled, obsolete law. See Amicus

Br. of Nat’l Ass’n of Crim. Def. Lawyers 7-10; Amicus

Br. of Roderick & Solange MacArthur Justice Center

11-12. The State offers no response to the prospect of

such “antiquated sideshow[s].” Amicus Br. of Roderick & Solange MacArthur Justice Center 13.

Second, this Court held in Griffith that the “selective application of new rules violates the principle of

treating similarly situated defendants the same.”

479 U.S. at 323. And in Teague v. Lane, 489 U.S.

288 (1989), a plurality of the Court confirmed that an

ad hoc approach to finality results in an “unfortunate

disparity in the treatment of similarly situated

defendants.” Id. at 305. That disparity is on display

here: If a Florida court had committed the Eddings

error in this case, McKinney would be entitled to a

new sentencing proceeding. See Fleming, 61 So. 3d

at 406-407. To avoid this disparity, the Court should

remand McKinney’s case for resentencing by a jury.

14

II. THE PROPER REMEDY FOR EDDINGS

ERROR IS RESENTENCING IN THE TRIAL

COURT.

The State raises several arguments in its response

brief that it did not raise in its brief in opposition,

including the argument that Eddings errors are

subject to harmless error review, that the Eddings

error in this case did not occur in the trial court, and

that there was no Eddings error at all. See Resp. Br.

30-41. Those arguments are waived. See Sup. Ct. R.

15.2; see also Pet. 10, 23 n.4, 31 (addressing all three

issues). Even if the State could overcome that problem, however, it cannot escape this Court’s

longstanding precedent, which holds that the proper

remedy for Eddings error is resentencing in the trial

court. See, e.g., Mills v. Maryland, 486 U.S. 367, 375

(1988).

A. The State’s Discussion Of Harmless Error

Review Is Irrelevant To This Case.

Rather than address the proper forum for fixing an

Eddings error—which is the question before the

Court—the State argues that some Eddings errors

need not be fixed at all. See Resp. Br. 30-31 (asserting that Eddings errors may be subject to harmless

error review). That question is irrelevant in this

case, where the Ninth Circuit concluded that the

Eddings error was not harmless. See Pet. App. 58a60a; see also Montana v. United States, 440 U.S. 147,

153 (1979) (holding that an issue decided “by a court

of competent jurisdiction cannot be disputed in a

subsequent suit between the same parties” (ellipses

and internal quotation marks omitted)). And in any

event, harmless error review does not apply to Eddings errors, because an appellate court cannot make

15

a “reasoned moral judgment” about whether a defendant should be sentenced to death. Nelson v.

Quarterman, 472 F.3d 287, 315 (5th Cir. 2006) (en

banc).4

B. The Ninth Circuit Properly Held That Both

The State Trial Court And The Arizona

Supreme Court Committed Eddings Error.

1. The State acknowledges that trial court resentencing would “be an appropriate Eddings remedy * * * where the error occurred in the trial court

and limited the sentencing record.” Resp. Br. 31.

The State nevertheless argues that resentencing is

not appropriate here, because the Eddings error

occurred in the Arizona Supreme Court, not the trial

court. See id. at 33. The Ninth Circuit, however,

found that the Eddings error occurred in the trial

court. See Pet. App. 29a-30a; see also Ramirez v.

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

McKinney, defendant’s proffered mitigating evidence

was explicitly rejected by both the Arizona trial court

and the Arizona Supreme Court.”). The State ignores the Ninth Circuit’s straightforward finding

that the trial court “gave McKinney’s PTSD no

weight as a mitigating factor” because it was not

causally connected to the crime, and the Ninth

Circuit’s conclusion that the trial court’s ruling

“echoes the restrictive language of Arizona’s causal

nexus test,” which “clearly violates Eddings.” Pet.

App. 29a-30a.

4

The State suggests in a heading that if the record in this case

is inadequate, the Court should remand for harmless error

review. See Resp. Br. 38. The Court should decline to remand

where the State does not explain the basis for its request.

16

Moreover, the governing law in Arizona at the time

of McKinney’s sentencing forbade consideration of

mitigating evidence unconnected to the crime. In

State v. Wallace, 773 P.2d 983 (Ariz. 1989)—decided

seven years after Eddings and four years before

McKinney’s sentencing—the Arizona Supreme Court

held that a “difficult family background” is “not a

mitigating circumstance,” because “nearly every

defendant could point to some circumstance in his or

her background that would call for mitigation.” 773

P.2d at 986. Wallace instead instructed that a

“difficult family background is a relevant mitigating

circumstance if a defendant can show that something

in that background had an effect or impact on his

behavior.” Id. (emphasis added); see also State v.

Ross, 886 P.2d 1354, 1363 (Ariz. 1994) (reaffirming

the causal nexus test one year after McKinney’s

sentencing). “Trial judges are presumed to know the

law and to apply it in making their decisions.”

Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring, 536 U.S. 584. Here,

the state trial court followed binding Arizona Supreme Court precedent when it refused as a matter

of law to consider McKinney’s PTSD, in violation of

Eddings.

The sentencing record in McKinney’s case confirms

that the trial judge applied the Arizona Supreme

Court’s unconstitutional causal nexus test. Under

Eddings, the trial judge was required to consider

whether McKinney’s PTSD was entitled to mitigating weight regardless of its connection to the crime.

The trial judge never conducted that analysis. The

judge, for example, took “into consideration” the

psychologist’s diagnosis of McKinney’s PTSD, accepting as a factual matter that McKinney suffered from

17

PTSD. Pet. App. 187a-189a; see also id. at 29a. Yet

the judge explained that he did not “find any credible

evidence to suggest that, even if the diagnosis” were

“accurate in Mr. McKinney’s case, that [it] in any

way significantly impaired Mr. McKinney’s conduct.”

Id. at 189a. The judge similarly stated that “there

simply was no substantial reason to believe that

even if the trauma that Mr. McKinney had suffered

in childhood had contributed to an appropriate

diagnosis of [PTSD] that it in any way affected his

conduct in this case.” Id. at 189a-190a. The State

does not point to a single instance in the sentencing

transcript where the trial judge stated that he was

considering the mitigating weight of McKinney’s

PTSD regardless of its connection to the crime.

The State (at 35) emphasizes the sentencing judge’s

statement that he considered “all of the mitigating

circumstances,” Pet. App. 192a, but that statement

does not address whether the judge considered

McKinney’s PTSD to be a mitigating circumstance.

As the Ninth Circuit concluded, the judge was referring to, and therefore weighed, only “what he concluded were legally relevant aggravating and mitigating circumstances” when determining McKinney’s

sentence. Id. at 29a. The State also cites Parker v.

Duggar, 498 U.S. 308 (1991), but in that case the

court considered all mitigating evidence because it

was required to do so under both state and federal

law. See id. at 314-315. Here, state law prohibited

the trial judge from considering this evidence.

2. To the extent there is any ambiguity with respect to whether the trial court considered McKinney’s PTSD when sentencing him to death, the Court

should remand for resentencing. This Court has

18

twice confronted cases where relevant mitigating

evidence was presented to the sentencer, but it was

unclear whether the sentencer considered it. See

Penry, 492 U.S. at 319-323, 328; Mills, 486 U.S. at

370-371, 383-384. The Court remanded for resentencing in both cases. See Penry, 492 U.S. at 328;

Mills, 486 U.S. at 384. As the Court explained,

“Eddings makes clear that it is not enough simply to

allow the defendant to present mitigating evidence to

the sentencer.” Penry, 492 U.S. at 319. “The sentencer must also be able to consider and give effect to

that evidence in imposing sentence.” Id. Where it is

“plausible”—but not certain—that a sentencer considered relevant mitigating evidence, the “high

requirement of reliability on the determination that

death is the appropriate penalty in a particular case”

has not been met, and “resentencing” is required.

Mills, 486 U.S. at 377, 383-384. Even if it were

“plausible” that the trial judge considered the mitigating evidence of McKinney’s PTSD, it is not certain

that he did so. McKinney is thus entitled to resentencing.

3. In a last-ditch effort, the State argues that the

Ninth Circuit’s decision is wrong, and that there was

no Eddings error at all. See Resp. Br. 40-41. That

issue, however, was decided by the Ninth Circuit,

and this Court denied certiorari.

See Ryan v.

McKinney, 137 S. Ct. 39 (2016) (mem.). The Ninth

Circuit’s “determination is conclusive in subsequent

suits,” including this one, and the State is not entitled to challenge it. Montana, 440 U.S. at 153.

The Ninth Circuit, moreover, did not err. As set

forth above, the Ninth Circuit correctly found that

the trial court, bound by the Arizona Supreme

19

Court’s causal nexus test, committed Eddings error.

See supra pp. 15-17. The Ninth Circuit also correctly

found that the Arizona Supreme Court committed

Eddings error, based on that court’s reliance on the

sentencing judge’s factual conclusion “that McKinney’s PTSD did not in any way affect his conduct in

this case”; its own “additional factual conclusion

that, if anything, McKinney’s PTSD would have

influenced him not to commit the crimes”; and its

“recital of the causal nexus test” and citation to its

opinion in Ross, which upheld the causal nexus test.

Pet. App. 54a-55a (citing Ross, 886 P.2d at 1363;

internal quotation marks and alterations omitted).

This Court has made clear that where a court imposes a “nexus” requirement on mitigating evidence, it

violates Eddings. See Tennard v. Dretke, 542 U.S.

274, 287-289 (2004). And even if this Court were

unsure if an Eddings error occurred in this case, it

should resolve any doubt in McKinney’s favor. See

Mills, 486 U.S. at 383-384.

C. This Court Has Repeatedly Held That The

Proper Remedy For Eddings Errors Is Resentencing.

1. This Court’s precedents are clear: The proper

remedy for Eddings error is resentencing in the trial

court. An Eddings error occurs where a judge or jury

refuses, as a matter of law, to consider relevant

mitigating evidence. See Eddings, 455 U.S. at 113114. To fix that error, the judge or jury must consider relevant mitigating evidence, and weigh it against

the aggravating evidence, to determine whether a

death sentence is warranted. See, e.g., Penry, 492

U.S. at 327-328. This Court has repeatedly made

clear that it is the trial court sentencer—rather than

20

the appellate court—that should make this determination. See Pet. Br. 36-39 (collecting cases). The

State attempts to distinguish this precedent, see

Resp. Br. 34, but this Court has never endorsed the

notion that appellate reconsideration is an appropriate remedy for Eddings error.5

The State attempts to minimize Caldwell v. Mississippi, 472 U.S. 320 (1985), see Resp. Br. 36-37, but

that case plainly states that Eddings “clearly envisioned” that consideration of mitigating evidence

“would occur among sentencers who were present to

hear the evidence and arguments and see the witnesses.” Caldwell, 472 U.S. at 330-331. This statement is not dicta; it underlies the Court’s conclusion

that the “delegation of sentencing responsibility”

from the jury to the appellate court deprives defendants of the “right to a fair determination of the

appropriateness of his death.” Id. at 330 (internal

quotation marks omitted). The State also relies on

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

case does not apply to mitigating evidence, and it has

since been overruled. See Pet. Br. 42-43.

2. The State raises three additional arguments for

why trial court resentencing is not required in this

case; the Court should reject those arguments.

First, the State argues that trial court resentencing

is unnecessary where mitigating evidence is already

in the record. See Resp. Br. 31-35. But this Court

5

The State mischaracterizes Hitchcock v. Dugger, 481 U.S. 393

(1987), which found an Eddings error where the judge and jury

were prohibited from considering as a matter of law mitigating

evidence introduced at sentencing. See id. at 398-399.

21

has never so much as suggested, let alone held, that

the appropriateness of trial-level resentencing as a

remedy for Eddings error turns on whether mitigating evidence is present in the record. See Hitchcock

v. Dugger, 481 U.S. 393, 399 (1987); see also Penry,

492 U.S. at 319. Further, the State does not—and

cannot—show that the Arizona Supreme Court has

the same “reasoned moral response” to mitigating

evidence of PTSD as a jury (or even a sentencing

judge). Penry, 492 U.S. at 319 (internal quotation

marks omitted). The Arizona Supreme Court has

repeatedly held that mitigating evidence of PTSD is

entitled to “little mitigating weight.” Styers, 254

P.3d at 1136; see also Pet. App. 5a-6a; Hedlund, 431

P.3d at 187. In contrast, in at least seven cases since

2015, juries in Arizona did not impose a death sentence where a defendant introduced mitigating

evidence of PTSD. See Amicus Br. of Arizona Capital

Representation Project 22, 25-29. This stark difference in outcomes demonstrates that juries may make

a different “individualized assessment” of whether

the death penalty is warranted than an appellate

court. Penry, 429 U.S. at 319.

The record here, in any case, is insufficient to permit appellate reweighing of mitigating and aggravating evidence. See Pet. Br. 43-47. The purpose of the

independent review proceeding below was to consider

whether McKinney’s PTSD diagnosis is entitled to

mitigating weight even if it is unconnected to the

crimes. See Pet. App. 68a. But the Arizona Supreme

Court did not cite any record evidence that would

assist the court in making that determination,

indicating that the record in this case is insufficient

to support appellate reweighing. See id. at 5a-6a.

Indeed, the only evidence the court cited was the

22

psychologist’s testimony that McKinney’s PTSD

would have caused him not to commit the crimes.

See id. In a resentencing proceeding, McKinney’s

counsel would be permitted to present evidence and

testimony to explain why McKinney’s PTSD diagnosis is entitled to mitigating weight even if it is unconnected to the crimes—evidence that is lacking in

this case. See Pet. Br. 43-47.6

Second, the State asserts that the correction of

Eddings error in the trial court is a “waste” of resources and would lead to relitigation of “facts buried

in the remote past.” Resp. Br. 31 (internal quotation

marks omitted). This Court, however, has remanded

to correct constitutional errors in criminal proceedings, even decades later. See Foster v. Chatman, 136

S. Ct. 1737 (2016). And it has repeatedly required

resentencing in cases involving Eddings errors. See

Pet. Br. 36-38. The Arizona Supreme Court has

similarly held that it is appropriate to remand for

resentencing to correct errors in death sentences.

See State v. Bible, 858 P.2d 1152, 1211 (Ariz. 1993).

Third, the State suggests that independent review

is a narrowly tailored remedy for Eddings errors.

See Resp. Br. 37-38. Independent review in the wake

of an Eddings error, however, deprives death-row

defendants of the many protections afforded by trial

6

This is not a “windfall” to McKinney, as the State suggests.

Resp. Br. 39. Arizona courts permit defendants to introduce

new mitigating evidence at resentencing. State v. Bocharski,

189 P.3d 403, 416-418 (Ariz. 2008). McKinney would thus be

entitled to seek to introduce expert testimony reflecting the

current scientific understanding of PTSD, as well as the

broader mitigating value of McKinney’s PTSD diagnosis.

23

court resentencing. Unlike an appellate court, a

trier of fact has the “opportunity to confront the

defendant in person” and undertake “the subjective

decision of whether mercy is appropriate.” Amicus

Br. of ACLU et al. 7-8. A trier of fact similarly has

the ability to assess the credibility of witnesses and

to hear the defendant’s allocution. See id. at 9-14.

Because resentencing proceedings in Arizona take

place before juries, moreover, defendants benefit

from “the critical safeguard of jury unanimity.” Id.

at 18-21 (describing how the Arizona Supreme Court

in both Hedlund and Styers affirmed death sentences

over a dissent). And, perhaps most important, where

a defendant is resentenced in a trial court, the defendant has two opportunities to seek a life sentence—once before the trial court and once before the

appellate court. If the defendant is sentenced to life

in the trial court in the first instance, moreover, the

State cannot appeal that sentence. See Ariz. Rev.

Stat. Ann. § 13-4032; see also Bullington v. Missouri,

451 U.S. 430, 445-446 (1981). McKinney was denied

these procedural protections, which Arizona law

affords to capital defendants, in the proceeding

below.

*

*

*

McKinney has never been sentenced to death by a

jury, and he has never been sentenced to death in a

proceeding that complied with current law. He is

entitled to those basic protections under the Constitution. The Court should remand McKinney’s case

for resentencing in the trial court by a jury.

24

CONCLUSION

For the foregoing reasons, the judgment of the Arizona Supreme Court should be reversed.

Respectfully submitted,

AMY L. MARSHAK

JONATHAN L. BACKER

JOSHUA A. GELTZER

MARY B. MCCORD

INSTITUTE FOR CONST.

ADVOCACY AND

PROTECTION

Georgetown University

Law Center

600 New Jersey Ave.,

N.W.

Washington, D.C. 20001

(202) 661-6728

NEAL KUMAR KATYAL

Counsel of Record

ERIN R. CHAPMAN

MICHAEL J. WEST

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

KATHERINE B. WELLINGTON

HOGAN LOVELLS US LLP

125 High St., Suite 2010

Boston, MA 02110

SHARMILA ROY

P.O. Box 441

Laveen, AZ 85339

(602) 930-2690

Counsel for Petitioner

NOVEMBER 2019