Petition for Writ of Certiorari — James Erin McKinney, Petitioner v. Arizona
Supreme Court briefFeb 21, 2019
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No. 18-____
IN THE
Supreme Court of the United States
_________
JAMES ERIN MCKINNEY,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
Arizona Supreme Court
_________
PETITION FOR A WRIT OF CERTIORARI
_________
SHARMILA ROY
P.O. Box 441
Laveen, Arizona 85339
(602) 930-2690
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioner
CAPITAL CASE
QUESTIONS PRESENTED
1. Whether the Arizona Supreme Court was required
to apply current law when weighing mitigating and
aggravating evidence 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.
(i)
ii
PARTIES TO THE PROCEEDING
James Erin McKinney, petitioner on review, was
the appellant below.
The State of Arizona, respondent on review, was
the appellee below.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
PARTIES TO THE PROCEEDING ............................ii
TABLE OF AUTHORITIES........................................ v
OPINIONS BELOW....................................................1
JURISDICTION ..........................................................2
STATUTORY
AND
CONSTITUTIONAL
PROVISIONS INVOLVED .................................2
INTRODUCTION........................................................3
STATEMENT ..............................................................6
A.
Factual Background .................................6
B.
Procedural History ...................................8
REASONS FOR GRANTING THE PETITION ....... 12
I.
II.
THERE IS A CLEAR SPLIT WITH
RESPECT TO WHETHER COURTS
MUST APPLY CURRENT LAW
WHEN CORRECTING A SENTENCE
OR RESENTENCING .................................... 12
A.
The Arizona Supreme Court’s
Decision Deepens A Clear Split ............. 12
B.
The Decision Below Is Wrong ................ 19
C.
The
Question
Presented
Is
Important................................................ 23
THERE IS A CLEAR SPLIT WITH
RESPECT TO WHETHER EDDINGS
ERROR REQUIRES RESENTENCING........ 26
A.
The Arizona Supreme Court’s
Decision Creates A Clear Split In
The State And Federal Courts ............... 27
iv
TABLE OF CONTENTS—Continued
Page
B.
The Arizona Supreme Court’s
Decision Is Wrong................................... 30
C.
The
Question
Presented
Is
Important................................................ 34
CONCLUSION .......................................................... 37
APPENDIX A—Arizona Supreme Court’s
Independent Review of Capital Sentence
(Sept. 27, 2018).................................................. 1a
APPENDIX B—Arizona Supreme Court’s
Order Denying Reconsideration (Oct. 23,
2018) ................................................................ 10a
APPENDIX C—Ninth Circuit’s En Banc
Opinion Granting Conditional Writ of
Habeas Corpus (Dec. 29, 2015) ....................... 12a
APPENDIX D—Arizona Supreme Court’s
Opinion (May 16, 1996)................................. 119a
APPENDIX E—Arizona Superior Court’s
Sentencing Proceedings (Sept. 20, 1993)...... 168a
v
TABLE OF AUTHORITIES
Page(s)
CASES:
Alleyne v. United States,
570 U.S. 99 (2013)................................................ 16
Apprendi v. New Jersey,
530 U.S. 466 (2000) .............................................. 14
Arizona v. Rumsey,
467 U.S. 203 (1984) .............................................. 31
Batson v. Kentucky,
476 U.S. 79 (1986).................................... 13, 14, 25
Berman v. United States,
302 U.S. 211 (1937) .............................................. 20
Blakely v. Washington,
542 U.S. 296 (2004) .................................. 14, 15, 16
Burrell v. United States,
467 F.3d 160 (2nd Cir. 2006) ............... 5, 12, 16, 17
Burton v. Stewart,
549 U.S. 147 (2007) .............................................. 20
Clemons v. Mississippi,
494 U.S. 738 (1990) .............................................. 33
Davis v. Coyle,
475 F.3d 761 (6th Cir. 2007)...................... 6, 26, 29
Detrich v. Ryan,
No. 4:03-cv-00229-DCB (D. Ariz.)........................ 24
Djerf v. Ryan,
No. 08-99027 (9th Cir.) ........................................ 24
Doerr v. Ryan,
/P¦DW¦ %"SJ[
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Eddings v. Oklahoma,
455 U.S. 104 (1982) ...................................... passim
Ferreira v. Sec’y, Dep’t of Corrections,
494 F.3d 1286 (11th Cir. 2007)............................ 19
Glossip v. Gross,
135 S. Ct. 2726 (2015).......................................... 33
Gonzalez v. Thaler,
565 U.S. 134 (2012) .............................................. 20
Greene v. Schriro,
/P¦DW¦ %"SJ[
Griffith v. Kentucky,
479 U.S. 314 (1987) ...................................... passim
Harvard v. State,
486 So.2d 537 (Fla. 1986) ............................ passim
Hitchcock v. Dugger,
481 U.S. 393 (1987) ........................................ 28, 32
Hurst v. Florida,
136 S. Ct. 616 (2016).................................... passim
Jimenez v. Quarterman,
555 U.S. 113 (2009) .................................. 20, 21, 22
Jones v. Ryan,
No. 18-99005 (9th Cir.) ........................................ 24
Kayer v. Ryan,
No. 09-99027 (9th Cir.) ........................................ 24
Koon v. United States,
518 U.S. 81 (1996)................................................ 34
Lee v. Schriro,
No. 09-99002 (9th Cir.) ........................................ 24
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Lockett v. Ohio,
438 U.S. 586 (1978) ........................................ 31, 32
Magwood v. Patterson,
561 U.S. 320 (2010) .............................................. 22
Martinez v. Ryan,
No. 08-99009 (9th Cir.) ........................................ 24
McKinney v. Ryan,
No. CV 03-774-PHX-DGC, 2009 WL
2432738 (D. Ariz. 2009) ................................... 9, 10
McKinney v. Ryan,
730 F.3d 903 (9th Cir. 2013)................................ 10
McKinney v. Ryan,
745 F.3d 963 (9th Cir. 2014)................................ 10
Mills v. Maryland,
486 U.S. 367 (1988) .............................. 5, 32, 33, 36
Murdaugh v. Ryan,
724 F.3d 1104 (9th Cir. 2013).............................. 23
Paxton v. Ward,
199 F.3d 1197 (10th Cir. 1999)............ 6, 26, 29, 30
Penry v. Lynaugh,
492 U.S. 302 (1989) .................................. 26, 32, 35
People v. Davis,
706 N.E.2d 473 (Ill. 1998).................... 6, 26, 28, 29
Poyson v. Ryan,
879 F.3d 875 (9th Cir. 2018)................................ 24
Ramirez v. Ryan,
No. 10-99023 (9th Cir.) ........................................ 24
Rashad v. Lafler,
675 F.3d 564 (6th Cir. 2012)................................ 18
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Richardson v. Gramley,
998 F.2d 463 (7th Cir. 1993)........................ passim
Rienhardt v. Ryan,
No. 4:03-cv-00290 (D. Ariz.)................................. 24
Ring v. Arizona,
536 U.S. 584 (2002) ...................................... passim
Rita v. United States,
551 U.S. 338 (2007) ........................................ 33, 34
Roseberry v. Ryan,
No. 2:15-cv-01507 (D. Ariz.)................................. 24
Salazar v. Ryan,
No. 08-99023 (9th Cir.) ........................................ 24
Sansing v. Ryan,
No. 13-99001 (9th Cir.) ........................................ 24
Skipper v. South Carolina,
476 U.S. 1 (1986)............................................ 31, 32
Smith v. Ryan,
No. 10-99002 (9th Cir.) ........................................ 24
Spears v. Ryan,
No. 09-99025 (9th Cir.) ........................................ 24
Spaziano v. Florida,
468 U.S. 447 (1984) .............................................. 33
Spreitz v. Ryan,
No. 09-99006 (9th Cir.) ........................................ 24
State v. Bible,
858 P.2d 1152 (Ariz. 1993)................................... 31
State v. Bocharski,
189 P.3d 403 (Ariz. 2008)............................... 35, 36
ix
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Fleming,
61 So.3d 399 (Fla. 2011) .............................. passim
State v. Kilgore,
216 P.3d 393 (Wash. 2009) .................. 5, 12, 15, 16
State v. McKinney,
426 P.3d 1204 (Ariz. 2018).....................................1
State v. McKinney,
917 P.2d 1214 (Ariz. 1996)............................... 1, 21
State v. Roberts,
998 N.E.2d 1100 (Ohio 2013)..................... 6, 26, 28
State v. Rumsey,
665 P.2d 48 (Ariz. 1983)....................................... 30
State v. Slemmer,
823 P.2d 41 (Ariz. 1991)....................................... 19
State v. Styers,
254 P.3d 1132 (Ariz. 2011)................. 11, 13, 25, 27
Teague v. Lane,
489 U.S. 288 (1989) ........................................ 19, 20
Thompson v. Lea,
681 F.3d 1093 (9th Cir. 2012).............................. 21
United States v. Booker,
543 U.S. 220 (2005) ........................................ 17, 18
United States v. Carbajal-Moreno,
332 F. App’x 472 (10th Cir. 2009) ....................... 19
United States v. Hadden,
475 F.3d 652 (4th Cir. 2007)...................... 5, 12, 17
United States v. Howard,
115 F.3d 1151 (4th Cir. 1997).............................. 19
x
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. LaFromboise,
427 F.3d 680 (9th Cir. 2005)................................ 18
United States v. Messervey,
269 F. App’x 379 (5th Cir. 2008) ......................... 18
United States v. Pizarro,
772 F.3d 284 (1st Cir. 2014) ...................... 5, 12, 16
Walden v. Ryan,
No. 08-99012 (9th Cir.) ........................................ 24
Washington v. Ryan,
No. 07-15536 (9th Cir.) ........................................ 24
Williams v. United States,
401 U.S. 667 (1971) .............................................. 23
Woodson v. North Carolina,
428 U.S. 280 (1976) .............................................. 35
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. VI ................................ 2, 4, 5, 22
U.S. Const. amend. VIII ................................. passim
U.S. Const. amend. XIV ................................. passim
STATUTES:
28 U.S.C. § 1257(a) ...................................................2
28 U.S.C. § 2255................................................ 17, 18
Anti-Terrorism and Effective Death
Penalty Act (AEDPA)..................................... 18, 19
RULE:
Ariz. R. Crim. P. 32.1.............................................. 21
xi
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
Anushka Pai et al., Posttraumatic Stress
Disorder in the DSM-5: Controversy,
Change, and Conceptual Considerations,
7 Behav. Sci., Issue 1, no. 7, 2017 ....................... 35
Am. Pscyhiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders
§ 309.81 (4th ed. 1994)......................................... 35
Am. Pscyhiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders
§ 309.81 (5th ed. 2013)......................................... 35
IN THE
Supreme Court of the United States
_________
No. 18_________
JAMES ERIN MCKINNEY,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
Arizona Supreme Court
_________
PETITION FOR A WRIT OF CERTIORARI
_________
James Erin McKinney respectfully petitions for a
writ of certiorari to review the judgment of the
Arizona Supreme Court in this case.
OPINIONS BELOW
The Arizona Supreme Court’s de novo review of
McKinney’s sentence, which is the decision upon
which certiorari is sought, is reported at 426 P.3d
1204 (2018). Pet. App. 1a-9a. That court’s order
denying rehearing is not reported. Id. at 10a-11a.
The Arizona Supreme Court’s opinion affirming
McKinney’s conviction and sentence is reported at
917 P.2d 1214 (1996). Pet. App. 119a-167a. The
trial court’s sentencing opinion is not reported. Id. at
168a-193a. The Ninth Circuit’s en banc decision
(1)
2
granting a conditional writ of habeas corpus is
reported at 813 F.3d 798 (2015). Pet. App. 12a-118a.
JURISDICTION
The Arizona Supreme Court entered judgment on
September 27, 2018. Petitioner filed a timely motion
for reconsideration, which was denied on October 23,
2018. Justice Kagan granted a 30-day extension of
the period for filing this petition to February 21,
2019. This Court’s jurisdiction is invoked under 28
U.S.C. § 1257(a).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
The Sixth Amendment, U.S. Const. amend. VI,
provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and
to be informed of the nature and cause of
the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of
Counsel for his defence.
The Eighth Amendment, U.S. Const. amend. VIII,
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
3
The Due Process Clause of the Fourteenth
Amendment, U.S. Const. amend. XIV, § 1, provides:
[N]or shall any State deprive any person
of life, liberty, or property, without due
process of law * * * .
INTRODUCTION
This case asks whether a court must apply current
law when deciding, for the first time, whether the
mitigating and aggravating evidence in a capital case
warrants the death sentence. In 1993, James Erin
McKinney was convicted of murder and sentenced to
death by a judge in Arizona. More than 20 years
later, the Ninth Circuit granted McKinney a conditional writ of habeas corpus, finding that Arizona
courts over a 15-year period had refused as a matter
of law to consider non-statutory mitigating evidence
in death penalty cases, in violation of this Court’s
decision in Eddings v. Oklahoma, 455 U.S. 104
(1982). The Ninth Circuit held that no Arizona court
had ever considered mitigating evidence that
McKinney suffered from Post-Traumatic Stress
Disorder (PTSD) as a result of his abusive childhood,
which by all accounts was horrific. The Ninth Circuit specifically found that this error was not harmless, and it ordered Arizona to correct the constitutional error in McKinney’s death sentence.
In response to the Ninth Circuit’s ruling, Arizona
sought de novo review of McKinney’s sentence by the
Arizona Supreme Court. McKinney opposed the
motion on the ground that he was entitled to resentencing by a jury under Ring v. Arizona, 536 U.S.
584 (2002), and Hurst v. Florida, 136 S. Ct. 616
(2016), which held that juries—rather than judges—
are required to make the findings necessary to
4
impose the death penalty. The Arizona Supreme
Court granted the State’s motion, concluding that
Ring did not apply because McKinney’s conviction
became final in 1996, prior to this Court’s decision in
Ring. The Arizona Supreme Court then proceeded to
“weigh” the mitigating and aggravating evidence in
McKinney’s case. Pet. App. 4a. It concluded that
“[g]iven the aggravating circumstances in this case,”
McKinney’s “mitigating evidence is not sufficiently
substantial to warrant leniency.” Id. at 5a. The
court “affirm[ed]” McKinney’s death sentence. Id. at
9a.
This petition raises two questions. The first is
whether a court must apply the law as it exists
today, rather than as it existed at the time a defendant’s conviction first became final, when correcting a
defendant’s sentence or conducting a resentencing.
The Arizona Supreme Court’s decision to apply the
law as it stood in 1996 when weighing the mitigating
and aggravating evidence in McKinney’s death
penalty case in 2018 violated McKinney’s Sixth,
Eighth, and Fourteenth Amendment rights, and
deepened a clear split amongst the state and federal
courts, warranting this Court’s review.
In both the Arizona Supreme Court and the Seventh Circuit, the law in effect at the time a defendant’s conviction first becomes final governs resentencing and sentence correction proceedings. See id.
at 3a-4a; Richardson v. Gramley, 998 F.2d 463, 467468 (7th Cir. 1993). In those two courts, once a
defendant’s conviction becomes final, “the federal law
applicable to the defendant’s case is frozen; cases
decided after that point cannot help him.” Richardson, 998 F.2d at 467.
5
The Florida and Washington Supreme Courts,
joined by the First, Second, and Fourth Circuits, take
the opposite approach. In those courts, current law
applies in sentence correction and resentencing
proceedings, unless a sentence correction is purely
ministerial. See State v. Fleming, 61 So.3d 399, 406
(Fla. 2011); State v. Kilgore, 216 P.3d 393, 396-401
(Wash. 2009); United States v. Pizarro, 772 F.3d 284,
289-291 (1st Cir. 2014); Burrell v. United States, 467
F.3d 160, 165-166 (2nd Cir. 2006) (Sotomayor, J.);
United States v. Hadden, 475 F.3d 652, 664, 670-671
(4th Cir. 2007). In any of those jurisdictions, Ring
and Hurst would apply to McKinney’s case, and he
would be entitled to resentencing by a jury. Given
this clear split—which affects at least 20 capital
cases in Arizona—the Court’s intervention is urgently needed.
The second question presented is whether the Arizona Supreme Court violated this Court’s decision in
Eddings, and McKinney’s Sixth, Eighth, and Fourteenth Amendment rights, by declining to remand
McKinney’s case for resentencing in the trial court.
In Eddings, this Court held that a “sentencer” in a
death penalty case may not “refuse to consider, as a
matter of law, any relevant mitigating evidence.”
455 U.S. at 114 (emphasis omitted). To remedy that
error, this Court has repeatedly remanded to the
trial court for resentencing. See, e.g., Mills v. Maryland, 486 U.S. 367, 375 (1988).
By refusing to remand McKinney’s case for resentencing, the Arizona Supreme Court created a clear
split with five other state and federal courts, which
have each held that resentencing is required to
correct Eddings errors. See Harvard v. State, 486
6
So.2d 537, 539 (Fla. 1986) (per curiam); People v.
Davis, 706 N.E.2d 473, 488 (Ill. 1998); State v. Roberts, 998 N.E.2d 1100, 1115 (Ohio 2013); Davis v.
Coyle, 475 F.3d 761, 774-775 (6th Cir. 2007) (Coyle);
Paxton v. Ward, 199 F.3d 1197, 1220 (10th Cir.
1999). This Court should also grant certiorari to
resolve this clear division in authority, which similarly impacts a substantial number of death-row
inmates in Arizona, and which has significant implications for other capital cases across the country.
STATEMENT
A. Factual Background
McKinney is the product of a “horrific childhood.”
Pet. App. 5a. He began life with his biological parents, James McKinney, Sr. and Bobbie Jean Morris,
in a home that McKinney’s aunt described as “squalid.” Pet. App. 19a. As she put it, “[w]hen you walked
through the door, it wasn’t nothing to see, you know,
diapers full of—all around. * * * Everything stunk.”
Id. (internal quotation marks omitted). James was
an alcoholic, and Bobbie tried to leave him when
McKinney was three years old. Id.
Bobbie fled with McKinney and his two sisters to
California, and then Kansas, and then California
again, and then Texas, and then New Mexico. Id. at
19a-20a.
Each time, James found Bobbie and
brought her and the children back to Arizona. Id. at
20a. According to James, Bobbie “kidnapped” the
children, and “he took them back after he found out
they were being physically abused and were being
locked in closets, hungry and sick.” Id. (internal
quotation marks omitted). James eventually remarried and gained custody of McKinney and his sisters.
Id.
7
When McKinney moved in with James and his new
wife, Shirley Crow McKinney, conditions were “even
worse” than before. Id. As McKinney’s aunt explained, “[i]t was gross. I mean, the house was
filthy, the kids were filthy, they never had clean
clothes that I ever saw them in.” Id. (internal quotation marks omitted). McKinney shared a room with
his two sisters and half-brother Michael Hedlund.
Id. There were no sheets on the beds, and dogs, cats,
snakes, a goat and a monkey were kept in the children’s bedroom. Id. The animals “regularly defecated and urinated in the bedroom.” Id. at 20a-21a.
McKinney attended school in “dirty clothes that
reeked of urine from being on the bedroom floor with
the animals,” and he was “harassed” by other children as a result. Id. at 21a-22a.
McKinney and his siblings “suffered regular and
extensive physical, verbal, and emotional abuse.” Id.
at 22a. Shirley frequently beat McKinney and his
siblings, and McKinney’s younger sister “could not
recall a time when none of the children had a welt or
bruise inflicted by” their stepmother. Id. On one
occasion, Shirley took a garden hose and beat
McKinney “on the back of the head, down his back,
all over his legs, his arms; anything that moved, she
hit him.” Id. (internal quotation marks omitted).
McKinney also frequently witnessed Shirley beating
his siblings. See id. at 22a. Shirley regularly locked
McKinney and his siblings out of the house for hours,
often in little clothing and without food or water. Id.
at 23a. As McKinney’s sister explained, their childhood was “horrible. It was scary. It seems like we
were all stressed out wondering when the next time
we were getting beat; wondering when we were going
to eat next.” Id. (internal quotation marks omitted).
8
By age 10, “McKinney had become distant, quiet
and withdrawn.” Id. at 24a. He began drinking
alcohol and smoking marijuana around age 11, and
he dropped out of school in the seventh grade. Id.
He repeatedly attempted to run away from home,
and he was placed in juvenile detention. Id.
B. Procedural History
1. In 1991, McKinney and Hedlund committed two
burglaries, resulting in the death of Christine
Mertens and Jim McClain. Id. at 17a-18a. In the
course of burglarizing Mertens’s home, “[o]ne of the
burglars held Ms. Mertens down on the floor and
shot her in the back of the head with a handgun,
covering the gun with a pillow.” Id. at 18a.1 About
two weeks later, McKinney and Hedlund entered
McClain’s home, also to commit burglary. McClain
“was shot in the back of the head by either McKinney
or Hedlund” while asleep in his bedroom. Id. At the
time, McKinney was 23 years old. Id. at 17a.
The State tried McKinney and Hedlund before dual
juries. Id. at 18a. McKinney’s jury found him guilty
of two counts of first degree murder by way of a
general verdict form, which did not indicate whether
McKinney had committed premeditated murder or
felony murder. Id. at 18a, 27a. Hedlund was found
guilty of one count of first degree murder and one
count of second degree murder. Id. at 18a.
McKinney’s capital sentencing took place before the
trial judge. Id. at 27a. At the sentencing hearing, a
1
A third burglar may also have been present. See Pet. App.
18a. The jury did not determine the identity of Mertens’s
assailant. See id. at 27a.
9
psychologist testified that he had diagnosed McKinney with PTSD “resulting from the horrific childhood
McKinney had suffered.” Id. at 25a. The psychologist stated that McKinney’s PTSD left him “susceptible to manipulation [and] exploitation.” Id. at 26a
(internal quotation marks omitted). The psychologist
explained that he believed McKinney’s PTSD would
cause him to “withdraw” from violent situations, but
that witnessing violence or other events reminiscent
of McKinney’s childhood could re-trigger his trauma
and produce “diminished capacity.” Id. (internal
quotation marks omitted).
The trial judge credited the psychologist’s testimony, id. at 29a, noting that McKinney’s childhood was
“beyond the comprehension of most people.” Id. at
58a (internal quotation marks omitted).
Under
Arizona law at the time, however, the judge was
prohibited from considering non-statutory mitigating
evidence that the judge found to be unconnected to
the crime. Id. at 29a-30a. The judge concluded that
McKinney’s PTSD was not causally connected to his
criminal behavior, and that it accordingly did not
qualify as mitigating evidence. Id. at 30a. The judge
sentenced McKinney to death without considering
McKinney’s PTSD. Id. at 29a-30a.
The Arizona Supreme Court affirmed McKinney’s
death sentence on appeal. The court did not consider
McKinney’s PTSD, accepting the sentencing judge’s
conclusion “that, as a factual matter,” McKinney’s
PTSD was not causally connected to the crime. Id. at
53a. McKinney did not petition this Court for certiorari.
2. In 2003, McKinney filed a habeas petition in
Arizona federal court. McKinney v. Ryan, No. CV 03-
10
774-PHX-DGC, 2009 WL 2432738 (D. Ariz. 2009).
McKinney argued that his sentence violated Eddings
because neither the trial judge nor the Arizona
Supreme Court had considered mitigating evidence
of his PTSD. The district court denied relief, id. at
*22-23, and a Ninth Circuit panel affirmed, McKinney v. Ryan, 730 F.3d 903, 921 (9th Cir. 2013).
The Ninth Circuit granted rehearing en banc,
McKinney v. Ryan, 745 F.3d 963 (9th Cir. 2014), and
reversed. After reviewing Arizona capital sentencing
proceedings from the 1980s to the 2000s, the Ninth
Circuit held that “the Arizona Supreme Court [had]
repeatedly articulated” a “causal nexus test” that
prohibited consideration of non-statutory mitigating
evidence unconnected to the defendant’s crime. Pet.
App. 37a. The Ninth Circuit concluded that the
Arizona courts had violated Eddings in death penalty cases decided between 1989 and 2005. Id. at 37a47a.
Turning to McKinney’s case, the Ninth Circuit held
that both the trial judge and the Arizona Supreme
Court had committed Eddings error, and that the
error was not harmless. Id. at 50a-55a. As the
Ninth Circuit explained, “McKinney’s evidence of
PTSD resulting from sustained, severe childhood
abuse would have had a substantial impact on a
capital sentencer who was permitted to evaluate and
give appropriate weight to it as a nonstatutory
mitigating factor.” Id. at 60a. The Ninth Circuit
found that “the Arizona Supreme Court’s refusal, as
a matter of law, to give weight to [McKinney’s]
PTSD, requires resentencing.” Id. at 59a. The Ninth
Circuit remanded to the federal district court “with
instructions to grant the writ with respect to McKin-
11
ney’s sentence unless the state, within a reasonable
period, either corrects the constitutional error in his
death sentence or vacates the sentence and imposes
a lesser sentence consistent with law.” Id. at 68a.
3. Following the Ninth Circuit’s decision, the State
moved for independent review of McKinney’s sentence by the Arizona Supreme Court. Id. at 3a.
McKinney opposed the motion, arguing that he was
entitled to resentencing by a jury under Ring and
Hurst.
The Arizona Supreme Court granted the State’s
motion. Id. The court concluded that McKinney was
not entitled to resentencing by a jury because his
“case was ‘final’ before the decision in Ring.” Id. at
3a-4a. The court cited its earlier decision in State v.
Styers, 254 P.3d 1132 (Ariz. 2011), which held that
Ring did not apply on de novo review where the
defendant “had exhausted available appeals, his
petition for certiorari had been denied, and the
mandate had issued almost eight years before Ring
was decided.” Id. at 1133-34. The court did not
address Hurst.
The Arizona Supreme Court conducted de novo
review of McKinney’s sentence. The court accorded
McKinney’s PTSD little weight, stating that “it bears
little or no relation to his behavior during Mertens’
murder.” Id. at 5a. The court emphasized the psychologist’s opinion that McKinney would “withdraw”
from violent situations as a result of his PTSD. Id.
at 6a (internal quotation marks omitted). The court
did not discuss the same psychologist’s testimony
that violent situations could re-trigger McKinney’s
PTSD and lead to reduced capacity. See id. After
“weighing” the remaining mitigating and aggravat-
12
ing evidence in McKinney’s case, id. at 6a-9a, the
Arizona Supreme Court “affirm[ed]” McKinney’s
death sentence. Id. at 9a.
This petition follows.
REASONS FOR GRANTING THE PETITION
I. THERE IS A CLEAR SPLIT WITH RESPECT
TO WHETHER COURTS MUST APPLY
CURRENT LAW WHEN CORRECTING A
SENTENCE OR RESENTENCING.
The decision below deepens a clear split in the
state and federal courts. In both the Arizona Supreme Court and the Seventh Circuit, a court correcting a defendant’s sentence or conducting a resentencing must apply the law in effect at the time a
defendant’s conviction first became final. See id. at
3a-4a; Richardson, 998 F.2d at 467. In stark contrast, the Florida and Washington Supreme Courts,
joined by the First, Second, and Fourth Circuits, hold
that current law applies to a resentencing or sentence correction, provided that the correction is not
purely ministerial. See Fleming, 61 So.3d at 406;
Kilgore, 216 P.3d at 396-401; Pizarro, 772 F.3d at
289-291; Burrell, 467 F.3d at 165-166; Hadden, 475
F.3d at 664, 670-671.
The Court should grant
certiorari to resolve this clear split, which affects
numerous capital cases in Arizona, and which has
significant implications nationwide.
A. The Arizona Supreme Court’s Decision
Deepens A Clear Split.
1. The Arizona Supreme Court and Seventh Circuit
both hold that the law in effect at the time a defendant’s conviction first becomes final applies during
resentencing and sentence correction proceedings.
13
In its opinion below, the Arizona Supreme Court
examined whether it was required to apply this
Court’s decision in Ring when correcting McKinney’s
sentence. The court concluded that Ring did not
apply “because McKinney’s case was ‘final’ before the
decision in Ring.” Pet. App. 3a-4a. To support its
conclusion, the court cited its earlier decision in
Styers, which held that Ring did not apply on de novo
review of a death sentence where the defendant “had
exhausted available appeals, his petition for certiorari had been denied, and the mandate had issued
almost eight years before Ring was decided.” 254
P.3d at 1133-34.
The Seventh Circuit adopted the same approach in
Richardson. There, the defendant was convicted of
murder and sentenced to 60 years in prison. He
appealed to the Illinois Appellate Court, which
affirmed the verdict but “remanded for resentencing.” 998 F.2d at 464 (internal quotation marks
omitted). The defendant did not file a further appeal
to the Illinois Supreme Court or seek certiorari in
this Court. On remand, the defendant was resentenced to 30 years in prison. Id.
The defendant then sought habeas relief in federal
court under Batson v. Kentucky, 476 U.S. 79 (1986),
which held that a prosecutor cannot strike a juror on
the basis of race. This Court decided Batson after
the time had expired for the defendant to seek certiorari from the Illinois Court of Appeals decision, but
before the defendant’s resentencing. See Richardson,
998 F.2d at 464-465. The Seventh Circuit held that
Batson did not apply to the defendant’s case, concluding that “an applicant for federal habeas corpus
cannot invoke a constitutional right that was first
14
declared after his conviction became final and the
time for seeking certiorari to review that final decision lapsed (or certiorari was denied).” Id. at 467.
As the court stated, “[t]he 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.” Id.
2. The Florida and Washington Supreme Courts,
joined by the First, Second, and Fourth Circuits, take
a different approach. In those courts, current law
applies to resentencing and sentence correction
proceedings, provided that the court exercises at
least some discretion during those proceedings. The
Arizona Supreme Court plainly exercised discretion
on de novo review of McKinney’s death sentence, and
thus current law would have applied to McKinney’s
sentence correction in any of these five jurisdictions.
In Fleming, the Florida Supreme Court examined
whether this Court’s decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), which require a jury to find
the facts necessary to increase a defendant’s sentence, applied “to resentencing proceedings that
became final after Apprendi and Blakely issued,
where the conviction and the original sentence were
final before they issued.” 61 So. 3d at 400. The court
answered that question in the affirmative.
The Florida Supreme Court noted that Apprendi
and Blakely were not retroactive. See id. at 403-404.
It held, however, that those cases nevertheless
applied to resentencing proceedings.
The court
explained that “resentencings in all criminal proceedings, including death penalty cases, are de novo
15
in nature.” Id. at 406. Because the court “has discretion at resentencing * * * to impose sentence using
available factors not previously considered,” the
Florida Supreme Court concluded that “the decisional law in effect at the time of the resentencing or
before any direct appeal from the proceeding is final
applies.” Id. at 406-407 (emphasis added).
The Washington Supreme Court adopted a similar
approach in Kilgore. There, the defendant was
convicted of seven counts of sexual abuse, and the
judge imposed a sentence of 560 months on each
count, to be served concurrently. 216 P.3d at 395.
On appeal, the state appeals court reversed two
counts and remanded for a new trial, but the State
elected not to retry the defendant. Id. at 395-396.
The trial court corrected the defendant’s sentence to
reflect the reversed counts, and the defendant once
again appealed. Id.
After the time expired to seek certiorari from the
first appeals court decision, but before the trial court
corrected the defendant’s sentence, this Court decided Blakely. Id. at 395. The Washington Supreme
Court examined whether Blakely applied to the
defendant’s case and concluded that it did not. The
court described “[f]inality” as “the point at which the
appellate court loses the power to change its decision.” Id. at 398. After a case becomes final, the
court explained, it may be “revived” if the court has
“discretion to revisit an issue” and elects to exercise
that discretion. Id. (emphasis added). Where a court
does not exercise its discretion, however, a case
remains final. See id. at 398-399. Because the lower
court corrected the defendant’s sentence without
exercising any discretion—it merely removed two
16
counts of conviction—the Washington Supreme
Court held that the lower court did not revive the
defendant’s case, and that Blakely did not apply. See
id. at 399-400.
The First Circuit reached a similar conclusion in
Pizarro. There, the defendant was convicted on drug
charges and resentenced twice—in 2006 and 2012—
as a result of different sentencing errors. While
Pizarro’s 2012 sentence was on appeal, this Court
decided Alleyne v. United States, 570 U.S. 99 (2013),
which held that any fact that increases a mandatory
minimum sentence must be submitted to a jury. Id.
at 103. In determining whether Alleyne applied to
the defendant’s case, the First Circuit held that
“[t]he fact that the Supreme Court denied Pizarro’s
petition for a writ of certiorari after his first appeal does not change the fact that his judgment of
conviction was not final at the time Alleyne was
decided, given that we had vacated his sentence and
remanded for resentencing.” Pizarro, 772 F.3d at
290-291 (internal citation omitted). Because the
defendant’s case was “pending on direct appeal at the
time that the Supreme Court handed down Alleyne,”
the First Circuit concluded that “Pizarro can now
challenge his convictions under the new rule announced in Alleyne.” Id. at 291.
The Second Circuit evaluated an analogous question in Burrell. In that case, the defendant had been
convicted on drug conspiracy and continuing criminal enterprise charges. On appeal, the Second
Circuit vacated the defendant’s conspiracy conviction
as a lesser-included offense and remanded “solely so
that the district court could correct the judgment to
reflect the dismissal of only the conspiracy convic-
17
tion.” 467 F.3d at 166 (internal quotation marks
omitted). While the defendant’s case was pending on
remand, this Court decided United States v. Booker,
543 U.S. 220 (2005), which held that the Sentencing
Guidelines were not mandatory.
To determine whether Booker applied to the defendant’s case, the Second Circuit evaluated whether
the district court on remand performed a “nondiscretionary act.” Burrell, 467 F.3d at 165. The
Second Circuit concluded that because “[o]ur directions to the district court unambiguously permitted
nothing more than the entry of an amended judgment reflecting the dismissal of Burrell’s conspiracy
conviction,” the court’s “remand directing the dismissal of the conspiracy count was therefore strictly
ministerial.” Id. at 166 (emphasis added). The
Second Circuit concluded that Booker did not apply
to the defendant’s case.2
The Fourth Circuit has likewise examined whether
Booker applies during sentence correction proceedings. In Hadden, the defendant was convicted on
firearm and drug charges, and his conviction was
affirmed on direct review. See 475 F.3d at 654. The
defendant later filed a petition under 28 U.S.C.
§ 2255 seeking post-conviction relief. The federal
district court granted the petition in part, vacating
one of the defendant’s convictions and entering a
shorter sentence, and the Fourth Circuit affirmed.
Id. While Hadden’s petition for rehearing of the
2
The Second Circuit held that Burrell’s co-defendant, in
contrast, was entitled to the benefit of Booker at a subsequent
resentencing hearing. See 467 F.3d at 166 n.4.
18
Fourth Circuit’s decision was pending, this Court
decided Booker.
The Fourth Circuit granted rehearing and held
that the defendant was entitled to the benefit of
Booker. As the Fourth Circuit explained, the district
court “corrected Hadden’s sentence,” affecting the
defendant’s “criminal case.” Id. at 660. The court
accordingly examined whether a Booker violation
had occurred. See id. at 670-671. The Fourth Circuit
concluded that although the Booker error was plain,
it would not recognize the error given the substantial
evidence against the defendant. See id. at 670-672.
Given this clear division between seven state and
federal courts, this Court should grant certiorari.
3. Further supporting certiorari, the Fifth, Sixth,
Ninth, Tenth, and Eleventh Circuits have all addressed the issue of finality in the context of the
Anti-Terrorism and Effective Death Penalty Act
(AEDPA)’s one-year statute of limitations. Each of
those courts has held that a conviction does not
become final until resentencing occurs, supporting
McKinney’s position that a conviction is not final—
and that current law applies—when the defendant’s
sentence remains open to correction. See United
States v. Messervey, 269 F. App’x 379, 381 (5th Cir.
2008) (per curiam) (Section 2255 petition is timely if
filed “within one year of the appeal from the judgment on [the defendant’s] resentencing becoming
final.”); Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir.
2012) (“The judgment became final upon the conclusion of direct review of the new sentence [the defendant] received at resentencing.”); United States v.
LaFromboise, 427 F.3d 680, 686 (9th Cir. 2005) (“We
conclude that the one-year time bar will begin to run
19
after the district court enters an amended judgment * * * .”); United States v. Carbajal-Moreno, 332
F. App’x 472, 476 (10th Cir. 2009) (“[T]he judgment
was not final until after the district court issued its
amended judgment.”); Ferreira v. Sec’y, Dep’t of
Corrections, 494 F.3d 1286, 1293 (11th Cir. 2007)
(similar).
4. Given the clear split—and related precedent in
multiple circuits addressing when a case becomes
final for AEDPA purposes—this Court’s intervention
is warranted. The version of the Constitution in
effect should not depend on geography. This Court
should grant the petition.
B. The Decision Below Is Wrong.
The Arizona Supreme Court’s position, on a grave
constitutional matter, is wrong. When the Arizona
Supreme Court granted de novo review of McKinney’s death sentence, it rendered McKinney’s conviction non-final as a matter of federal law. The Constitution, as currently interpreted by this Court, is thus
fully applicable to McKinney’s case.
1. Arizona applies federal law on retroactivity. See
State v. Slemmer, 823 P.2d 41, 49 (Ariz. 1991) (“[W]e
adopt and apply the federal retroactivity analysis * * * .”); see also United States v. Howard, 115
F.3d 1151, 1158 (4th Cir. 1997) (“The finality of a
conviction is a matter of federal rather than state
law.”). The first step in that analysis is to pinpoint
the moment of finality, since new constitutional rules
apply “to all cases, state or federal, pending on direct
review or not yet final.” Griffith v. Kentucky, 479
U.S. 314, 328 (1987).
A criminal conviction is not final until the sentence
is final. As this Court explained in Teague v. Lane,
20
489 U.S. 288 (1989), “a criminal judgment necessarily includes the sentence imposed upon the defendant.” Id. at 314 n.2. Thus, “[f]inal judgment in a
criminal case means sentence. The sentence is the
judgment.” Burton v. Stewart, 549 U.S. 147, 156
(2007) (per curiam) (quoting Berman v. United
States, 302 U.S. 211, 212 (1937)).
A conviction becomes final when “the availability of
appeal” has been exhausted “and the time for a
petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith, 479 U.S. at 321 n.6; see
also Gonzalez v. Thaler, 565 U.S. 134, 152-153 (2012)
(rejecting “state-by-state definitions of the conclusion
of direct review”). This Court pegged finality to the
conclusion of direct review because “failure to apply a
newly declared constitutional rule to criminal cases
pending on direct review violates basic norms of
constitutional adjudication.” Griffith, 479 U.S. at
322. As this Court explained in Griffith, “after we
have decided a new rule * * *, the integrity of judicial
review requires that we apply that rule to all similar
cases pending on direct review.” Id. at 322-323.
The finality inquiry is typically clear-cut: A conviction becomes final when direct review concludes.
But finality is not always final. In Jimenez v. Quarterman, 555 U.S. 113 (2009), this Court held that
where a state court reopens direct review, a final
conviction is rendered non-final. Id. at 120. As this
Court explained, a conviction is no longer final where
it is “again capable of modification through direct
appeal to the state courts and to this Court on certiorari review.” Id. Once reopened, a conviction does
not become final again until “the entirety of the state
direct appellate review process [is] completed” and
21
the “time for seeking certiorari review in this Court
expire[s].” Id. at 120-121; see also Thompson v. Lea,
681 F.3d 1093, 1094 (9th Cir. 2012) (applying
Jimenez).
2. In the proceedings below, the Arizona Supreme
Court explicitly recognized that its task was to
“correct[ ] the constitutional error in [McKinney’s]
death sentence,” Pet. App. 3a (internal quotation
marks omitted)—an error that occurred during
McKinney’s criminal sentencing and was repeated on
appeal. See supra pp.9-10. To correct that constitutional error, the State requested de novo review of
McKinney’s death sentence, and the Arizona Supreme Court granted review in the same criminal
case that the State initiated against McKinney in
1993. Compare Pet. App. 1a (case CR-93-0362-AP);
with State v. McKinney, 917 P.2d 1214 (Ariz. 1996)
(case CR-93-0362-AP).3
The Arizona Supreme Court’s correction of McKinney’s sentence, moreover, was not ministerial. By
independently weighing the mitigating and aggravating evidence, the Arizona Supreme Court plainly
exercised discretion over McKinney’s death sentence.
See Pet. App. 5a. Indeed, it is hard to imagine a
more fundamental exercise of discretion than the
weighing of mitigating and aggravating evidence to
determine whether the death penalty is warranted.
See Eddings, 455 U.S. at 112-117.
As multiple state and federal courts have held,
where a court exercises discretion to correct a de3
Under Arizona law, post-conviction review may only be sought
by the criminal defendant. See Ariz. R. Crim. P. 32.1.
22
fendant’s sentence or conduct a resentencing, the
defendant’s conviction is rendered non-final for
purposes of this Court’s retroactivity jurisprudence.
See supra pp.14-18. By granting de novo review of
McKinney’s death sentence, the Arizona Supreme
Court rendered McKinney’s conviction “again capable of modification through direct review to the state
courts and to this Court on certiorari review.”
Jimenez, 555 U.S. at 686. The Arizona Supreme
Court was accordingly required to apply the “decisional law effective at the time” of its review. Fleming, 61 So.3d at 400.
3. Newly announced constitutional rules apply “to
all cases, state or federal, pending on direct review or
not yet final.” Griffith, 479 U.S. at 328 (emphasis
added). McKinney’s conviction is not yet final: It
was reopened by the Arizona Supreme Court on de
novo review, and McKinney’s petition for certiorari is
pending before this Court. The Arizona Supreme
Court accordingly erred by refusing to apply current
decisional law when addressing the Eddings error in
McKinney’s death sentence, in violation of McKinney’s Sixth, Eighth, and Fourteenth Amendment
rights, as well as this Court’s decision in Griffith.
See Pet. App. 3a-4a (holding that Ring does not apply
to McKinney’s conviction). It is no excuse that Ring
and Hurst had yet to be decided the first time that
the Arizona Supreme Court weighed the aggravating
and mitigating evidence in McKinney’s case. As this
Court made clear in Magwood v. Patterson, 561 U.S.
320 (2010), an “error made a second time is still a
new error.” Id. at 339. This Court should remand to
the Arizona Supreme Court so that it may apply the
23
Constitutional rules in effect today—not the rules in
effect two decades ago.4
C. The Question Presented Is Important.
As Justice Harlan recognized, this Court sits “as a
court of law, not a council of revision.” Williams v.
United States, 401 U.S. 667, 697 (1971) (Harlan, J.,
concurring in the judgments in Nos. 36 and 82 and
dissenting in No. 81). The Court’s “powers of judicial
review are judicial, not legislative, in nature.” Id.
“[I]t is the nature of judicial review that precludes”
this Court “from simply fishing one case from the
stream of appellate review, using it as a vehicle for
pronouncing new constitutional standards, and then
permitting a stream of similar cases subsequently to
flow by unaffected by that new rule.” Griffith, 479
U.S. at 323 (alterations and internal quotation
marks omitted).
By reopening McKinney’s conviction to correct a
constitutional error, the Arizona Supreme Court
placed McKinney’s case back in “the stream of appellate review.” Once in that stream, the decisional law
in effect today—and not at the time McKinney’s
conviction first became final—applied to McKinney’s
sentence. See Williams, 401 U.S. at 681 (The Constitution “mandates that we apply the law as it is * * *,
4
The Arizona Supreme Court’s error is not harmless. As the
Ninth Circuit held, “McKinney’s evidence of PTSD resulting
from sustained, severe childhood abuse would have had a
substantial impact on a capital sentencer.” Pet. App. 60a. That
evidence has never been evaluated by a capital sentencer, much
less by a jury, as this Court’s precedents require. See Ring, 536
U.S. at 606-608; see also Hurst, 136 S. Ct. at 619; Murdaugh v.
Ryan, 724 F.3d 1104, 1115-16 (9th Cir. 2013).
24
not as it once was.”) (Harlan, J.). The “integrity of
judicial review” prohibits the Arizona Supreme Court
from creating a new constitutional error in McKinney’s death sentence in its attempt to correct an old
one. Griffith, 479 U.S. at 323. Instead, the Arizona
Supreme Court was required to apply the same rule
in McKinney’s case that would apply “to all similar
cases pending on direct review.” Id.
The Arizona Supreme Court’s refusal to apply the
rule of law—as interpreted by this Court—when
conducting de novo review of McKinney’s death
sentence is worthy of the Court’s attention. The
Eddings error identified by the Ninth Circuit in
McKinney’s habeas appeal affects at least 19 other
capital cases in Arizona. See Poyson v. Ryan, 879
F.3d 875 (9th Cir. 2018); Washington v. Ryan, No.
07-15536 (9th Cir.); Walden v. Ryan, No. 08-99012
(9th Cir.); Salazar v. Ryan, No. 08-99023 (9th Cir.);
Djerf v. Ryan, No. 08-99027 (9th Cir.); Sansing v.
Ryan, No. 13-99001 (9th Cir.); Lee v. Schriro, No. 0999002 (9th Cir.); Spreitz v. Ryan, No. 09-99006 (9th
Cir.); Martinez v. Ryan, No. 08-99009 (9th Cir.);
Spears v. Ryan, No. 09-99025 (9th Cir.); Kayer v.
Ryan, No. 09-99027 (9th Cir.); Jones v. Ryan, No. 1899005 (9th Cir.); Smith v. Ryan, No. 10-99002 (9th
Cir.); Ramirez v. Ryan, No. 10-99023 (9th Cir.); Doerr
v. Ryan, No. 2:02-cv-00582 (D. Ariz.); Detrich v.
Ryan, No. 4:03-cv-00229-DCB (D. Ariz.); Rienhardt v.
Ryan, No. 4:03-cv-00290 (D. Ariz.); Greene v. Schriro,
No. 4:03-cv-00605 (D. Ariz.); Roseberry v. Ryan, No.
2:15-cv-01507 (D. Ariz.).
The State will undoubtedly seek de novo review of
the death sentences in these cases, and the Arizona
Supreme Court is likely to grant the State’s re-
25
quest—despite this Court’s clear mandate in Ring
and Hurst that courts should not be in the business
of weighing aggravating and mitigating evidence in
capital cases. See Ring, 536 U.S. at 606-608; see also
Hurst, 136 S. Ct. at 619.
More fundamentally, the Arizona Supreme Court’s
decision below undermines the rule of law. If the
Arizona Supreme Court and the Seventh Circuit are
correct that “the federal law applicable to the defendant’s case is frozen,” Richardson, 998 F.2d at
467, at the moment direct review concludes—no
matter what happens after—then courts may ignore
with impunity new constitutional rules established
by this Court. Thus, in Richardson, if the trial court
had empaneled a jury to resentence the defendant
following this Court’s Batson decision—but had
permitted the prosecutor to strike jurors on the basis
of race in violation of Batson—the defendant would
have had no basis for relief. And in this case, if the
Arizona Supreme Court had directed the trial judge
to resentence McKinney, despite this Court’s clear
holdings in Ring and Hurst that juries must weigh
aggravating and mitigating evidence in capital cases,
McKinney would have had no recourse.5 That is not
the way the Constitution works.
McKinney’s request on certiorari is simple: He
asks that the weighing of mitigating and aggravating
evidence in his capital case—which occurred for the
first time below—take place in accordance with the
5
Not even the State of Arizona would go that far. In Styers, the
State conceded that current law applies in resentencing proceedings. See 254 P.3d at 1137 (Hurwitz, Vice-C.J., dissenting).
26
Constitution, as currently understood by this Court.
The Court should grant that request.
II. THERE IS A CLEAR SPLIT WITH RESPECT
TO WHETHER EDDINGS ERROR
REQUIRES RESENTENCING.
The Arizona Supreme Court’s decision to conduct
independent appellate review of McKinney’s death
sentence creates a second split. In its opinion below,
the Arizona Supreme Court held that Eddings error
could be corrected through appellate reweighing of
aggravating and mitigating evidence. See Pet. App.
3a-4a. In contrast, the Florida, Illinois, and Ohio
Supreme Courts—joined by the Sixth and Tenth
Circuits—hold that Eddings error must be remedied
through resentencing in the trial court. See Harvard, 486 So.2d at 539; Davis, 706 N.E.2d at 488;
Roberts, 998 N.E.2d at 1115; Coyle, 475 F.3d at 774775; Paxton, 199 F.3d at 1220. This clear division of
authority similarly warrants the Court’s intervention.
The question presented, moreover, is important.
This Court has repeatedly stated that where a lower
court commits Eddings error, resentencing is required. 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). For good reason: The
nature of Eddings error is a sentencer’s failure to
consider mitigating evidence. The proper remedy for
that error is for the sentencer to consider mitigating
evidence.
An appellate court—which by nature
reviews the trial court’s judgment—does not serve
the same sentencing function. The decision below is
wrong, and the outcome of this case directly affects a
significant number of capital cases in Arizona and
27
has implications for other death penalty cases
around the country. The Court should grant certiorari and reverse.
A. The Arizona Supreme Court’s Decision
Creates A Clear Split In The State And
Federal Courts.
1. On habeas review, the Ninth Circuit ordered the
State to “correct[ ] the constitutional error” in
McKinney’s death sentence or impose a lesser sentence. See Pet. App. 68a. Following the Ninth
Circuit’s decision, the State filed a motion for independent appellate review of McKinney’s death sentence. The Arizona Supreme Court granted the
State’s request. See id. at 3a. To support its ruling,
the Arizona Supreme Court cited its earlier decision
in Styers, which had concluded that “to remedy”
Eddings error, the court “need only properly conduct
independent review.” 254 P.3d at 1133-34. The
Arizona Supreme Court proceeded to weigh the
mitigating and aggravating evidence in McKinney’s
case, and it “affirm[ed]” McKinney’s death sentence.
Pet. App. 9a.
2. The Florida, Illinois, and Ohio Supreme
Courts—in addition to the Sixth and Tenth Circuits—have taken the opposite approach. In each of
those courts, Eddings error requires resentencing.
In Harvard, the sentencing judge had “limited consideration of mitigating factors to those enumerated
in the capital sentencing statute,” in violation of
Eddings. 486 So.2d at 538. The Florida Supreme
Court held that a post-conviction court’s denial of
relief without a new sentencing proceeding did not
correct the Eddings error, and that “a new sentencing hearing must be held before the trial judge with
28
directions that he allow [the defendant] to present
evidence of appropriate nonstatutory mitigating
circumstances.” Id. at 539.
The Ohio Supreme Court adopted a similar approach in Roberts. There, the trial court had refused
to consider the defendant’s allocution—her only
mitigation—when imposing the death penalty. 998
N.E.2d at 1111. The Ohio Supreme Court evaluated
whether it could correct that error through “independent appellate review.” Id. at 1115. The Ohio
Supreme Court concluded that because the trial
court had not considered the defendant’s allocution,
the trial court had not provided its “perceptions as to
the weight accorded all relevant circumstances.” Id.
(internal quotation marks omitted). Without those
“perceptions,” the court held that the “sentencing
opinion is so inadequate as to severely handicap our
ability to exercise our power of independent review.”
Id. The court accordingly vacated the defendant’s
death sentence and remanded “for resentencing.”
Id.; see also id. at 1120 (O’Donnell, J., dissenting)
(noting the majority’s departure from prior precedent, which had held that Eddings “error is cured by
our independent sentence evaluation”).
The Illinois Supreme Court reached the same result in Davis. There, the trial judge had refused to
consider the defendant’s good behavior while awaiting trial when determining whether to impose the
death penalty. 706 N.E.2d at 485-487. After finding
an Eddings violation, the Illinois Supreme Court
looked to this Court’s decision in Hitchcock v. Dugger, 481 U.S. 393 (1987), which had vacated the
defendant’s death sentence under similar circumstances. Davis, 706 N.E.2d at 487, 488. The Illinois
29
Supreme Court held that “[i]n cases in which a
capital sentencer has not considered mitigation
evidence,” the appropriate remedy is to vacate the
death sentence and remand “for a new sentencing
hearing.” Id. at 488.
The Sixth Circuit concurred in Coyle. In that case,
the defendant had been sentenced to death in Ohio
state court by a three-judge panel. 475 F.3d at 768.
After the Ohio Supreme Court vacated the defendant’s sentence and ordered resentencing, the panel
again imposed a death sentence. Id. at 769-770.
During resentencing, the panel denied the defendant’s request to introduce mitigating evidence of good
behavior between his first and second sentencing
hearings. Id. at 769. The Sixth Circuit concluded
that the panel’s refusal to consider this mitigating
evidence violated Eddings, and it remanded for
resentencing. See id. at 773-775. The Sixth Circuit
noted that where a sentencer considers improper
aggravating evidence, appellate reweighing may be
appropriate. Where “a trial court improperly excludes mitigating evidence or limits the fact-finder’s
consideration of such evidence,” however, the court
concluded that resentencing is required. Id. at 774.6
The Tenth Circuit reached a similar conclusion in
Paxton. At the defendant’s capital sentencing hearing in that case, the trial judge had prohibited the
defendant from introducing mitigating evidence of a
polygraph, in violation of Eddings. 199 F.3d at 12116
The Sixth Circuit’s opinion could be read to suggest (in dicta)
that appellate reweighing may be permissible in some circumstances. See id. at 774. If so, the Sixth Circuit’s decision
merely deepens the split in this case.
30
16. On federal habeas review, the Tenth Circuit held
that this error could not be corrected through “reweighing” by the “state appellate court.” Id. at 12191220. As the Tenth Circuit explained, “the sentencing process here was rendered unreliable not because
the jury weighed an invalid or unsupported aggravating circumstance, but because in reaching its
result the jury was denied consideration of relevant
mitigating evidence.” Id. at 1220. The Tenth Circuit
concluded that “reweighing does not address the
nature of the constitutional violations or fully correct
the errors,” and that a new sentencing proceeding
was required. Id.
Five state and federal courts have all reached the
same conclusion: Eddings error requires resentencing in the trial court. The Arizona Supreme Court,
in contrast, holds that independent appellate review
can correct Eddings error. This straightforward
division of authority is worthy of the Court’s attention, and the Court should grant certiorari.
B. The Arizona Supreme Court’s Decision Is
Wrong.
There is a simple reason multiple courts have declined to remedy Eddings error through appellate
review: That too would violate Eddings. Given the
stakes in this capital case, as well as the deep error
engendered that could impact other cases, the Court
should grant certiorari and require resentencing in
the trial court.
The Arizona Supreme Court did not—and could
not—resentence McKinney, as its own precedents
make clear. See State v. Rumsey, 665 P.2d 48, 55
(Ariz. 1983) (“While we have an independent duty of
review, we perform it as an appellate court, not as a
31
trial court.”). As the Arizona Supreme Court explained in State v. Bible, 858 P.2d 1152 (Ariz. 1993),
it has “an appellate task in reviewing death sentences and we have placed the sentencing authority in all
criminal cases, and especially capital cases, with the
trial judge.” Id. at 1211. This Court reached the
same conclusion in Arizona v. Rumsey, 467 U.S. 203
(1984), noting that the Arizona Supreme Court
described its role as “strictly that of an appellate
court, not a trial court.” Id. at 210. Indeed, in its
decision below, the Arizona Supreme Court expressly
“affirm[ed]” McKinney’s death sentence, rather than
conducting resentencing proceedings. Pet. App. 9a.
By refusing to grant resentencing, the Arizona
Supreme Court perpetuated the Eddings error in
McKinney’s case. In Lockett v. Ohio, 438 U.S. 586
(1978), a plurality of this Court held that “the Eighth
and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not
be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record.” Id.
at 604 (Opinion of Burger, C.J.) (emphasis added,
footnote and later emphasis omitted). In Eddings,
this Court adopted Lockett’s analysis, affirming that
the “sentencer” must “be permitted to focus on the
characteristics of the person who committed the
crime.” 455 U.S. at 112 (internal quotation marks
omitted).
Following Eddings, this Court has repeatedly considered the proper remedy for Eddings error. Each
time, it has concluded that where the sentencer is
precluded from considering mitigating evidence,
resentencing is required. In Skipper v. South Carolina, 476 U.S. 1 (1986), this Court found Eddings error
32
where the trial court had excluded evidence of the
defendant’s good behavior while awaiting trial. Id.
at 4. The Court concluded that the “resulting death
sentence cannot stand, although the State is of
course not precluded from again seeking to impose
the death sentence, provided that it does so through
a new sentencing hearing at which petitioner is
permitted to present any and all relevant mitigating
evidence that is available.” Id. (emphasis added).
The Court followed the same approach in Hitchcock. There, the trial court had excluded evidence of
the defendant’s “family background and his capacity
for rehabilitation,” in violation of Eddings. 481 U.S.
at 398-399. Once again, this Court reversed the
lower court, holding that “the State is not precluded
from seeking to impose a death sentence upon petitioner, provided that it does so through a new sentencing hearing at which petitioner is permitted to
present any and all relevant mitigating evidence that
is available.” Id. at 399 (emphasis added and internal quotation marks omitted).
In Penry, this Court similarly found an Eddings
violation based on “the absence of instructions informing the jury that it could consider and give effect
to the mitigating evidence of [the defendant’s] mental retardation and abused background.” 492 U.S. at
328. There too, the Court held that its “reasoning in
Lockett and Eddings thus compels a remand for
resentencing so that we do not risk that the death
penalty will be imposed in spite of factors which may
call for a less severe penalty.” Id. (emphasis added
and internal quotation marks omitted).
In Mills, the Court made this point even more
clearly. There, the state’s sentencing scheme had
33
permitted “a single juror’s holdout vote” to prevent
consideration of mitigating evidence. 486 U.S. at
375. “Because the sentencer’s failure to consider all
of the mitigating evidence risks erroneous imposition
of the death sentence,” this Court held that “it is our
duty to remand this case for resentencing.” Id.
(emphasis added and brackets omitted) (quoting
Eddings, 455 U.S. at 117 n.* (O’Connor, J., concurring)).7
This Court should apply those precedents here, and
hold that McKinney is entitled to resentencing in the
trial court. “[T]he choice between life and death,
within legal limits, is left to the jurors and judges
who sit through the trial, and not to legal
elites * * * .” Glossip v. Gross, 135 S. Ct. 2726, 2751
(2015) (Thomas, J., concurring). Jurors and sentencing judges “have an opportunity to assess the credibility of the witnesses, to see the remorse of the
defendant, [and] to feel the impact of the crime on
the victim’s family.” Id. at 2751. This “vantage
point,” as well as “day-to-day experience in criminal
sentencing,” gives trial courts “an institutional
advantage over appellate courts” when it comes to
sentencing decisions. Rita v. United States, 551 U.S.
7
In Clemons v. Mississippi, 494 U.S. 738 (1990), this Court held
that appellate reweighing could correct error caused by an
invalid jury instruction regarding aggravating evidence. See id.
at 741. Clemons does not govern this case, where the sentencer
was precluded from considering mitigating evidence. And in
any event, Clemons is no longer good law. Compare Hurst, 136
S. Ct. at 623 (overruling Spaziano v. Florida, 468 U.S. 447
(1984)), with Clemons, 494 U.S. at 746 (relying on Spaziano for
the proposition that a jury is not necessary to impose the death
penalty).
34
338, 363 (2007) (quoting Koon v. United States, 518
U.S. 81, 98 (1996)).
This institutional advantage is particularly important in a case like this one, where the trial court
found that McKinney’s childhood was “horrific” and
“beyond the comprehension and understanding of
most people.” Pet. App. 58a (internal quotation
marks omitted). Listening to a psychologist describe
McKinney’s upbringing, and its effect on McKinney’s
PTSD, is different than reading that testimony on a
cold record. Weighing the psychologist’s testimony in
conjunction with testimony from McKinney’s sister
and aunt—who described the beatings McKinney
both endured and witnessed—is different than
flipping through the pages of a sentencing transcript.
The Arizona Supreme Court did not, and could not,
serve the same function as the trial-court judge that
initially sentenced McKinney to death.
The Eddings error in this case is clear: No sentencer has ever considered the mitigating evidence of
McKinney’s PTSD. Although the Arizona Supreme
Court “weigh[ed]” that evidence, it did so in its role
as an appellate court, not a sentencing court. The
Eddings error in McKinney’s case has not been
cured, and McKinney is entitled to a resentencing
proceeding in the trial court that permits full consideration of all mitigating evidence in his case. This
Court should grant certiorari and reverse.
C. The Question Presented Is Important.
McKinney seeks nothing more than any other defendant facing the ultimate penalty: The opportunity to present mitigating evidence in the trial court
before being put to death. Prior to sentencing a
defendant to death, the Eighth Amendment requires
35
the sentencer to evaluate the defendant’s “character
and record” and to consider him as a “uniquely
individual human being[ ].” Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976) (Opinion of Stewart, J.). This requirement ensures that the “the
sentence imposed at the penalty stage * * * reflect[s]
a reasoned moral response to the defendant’s background, character, and crime.” Penry, 492 U.S. at
319 (internal quotation marks omitted). Under the
rule adopted by the Arizona Supreme Court, this
evaluation never took place in McKinney’s case—and
never will.
By refusing to remand for resentencing, moreover,
the Arizona Supreme Court turned a blind eye to
decades of scientific advances with respect to the
understanding of PTSD. Since McKinney’s sentencing, the Diagnostic and Statistical Manual of Mental
Disorders (“DSM”) has twice revised its definition of
PTSD. See Am. Pscyhiatric Ass’n, DSM § 309.81
(4th ed. 1994); Am. Pscyhiatric Ass’n, DSM § 309.81
(5th ed. 2013). With each revision, “the criteria for
PTSD have changed substantially.” Anushka Pai et
al., Posttraumatic Stress Disorder in the DSM-5:
Controversy, Change, and Conceptual Considerations, 7 Behav. Sci., Issue 1, no. 7, 2017, at 1. For
example, the current DSM now recognizes that
PTSD may lead to “reckless or self-destructive behavior,” id. at 4, directly contradicting the Arizona
Supreme Court’s conclusion that McKinney’s PTSD
would cause him to withdraw from violent situations,
Pet. App. 6a. Under Arizona law, McKinney is
entitled to seek introduction of this mitigating evidence at a resentencing proceeding—an opportunity
he was denied by the Arizona Supreme Court. See,
e.g., State v. Bocharski, 189 P.3d 403, 418 (Ariz.
36
2008) (approving trial court’s decision to allow new
mitigating evidence at capital resentencing).
The Arizona Supreme Court’s holding that Eddings
error may be corrected through appellate review
affects at least 20 capital cases in Arizona, including
McKinney’s. See supra p.24. In each of those cases,
the Arizona courts failed to consider nonstatutory
mitigating evidence. And in each of those cases, no
sentencing body has ever considered whether the
defendant should be sentenced to death in light of
that evidence. Independent appellate review by the
Arizona Supreme Court will cement—rather than
cure—the Eddings error committed by the Arizona
courts for over 15 years. See Pet. App. 14a.
The approach adopted by the Arizona Supreme
Court in this case is directly contrary to multiple
precedents of this Court. See, e.g., Mills, 486 U.S. at
375. It is also directly contrary to the rulings of
numerous state and federal courts. See supra pp.1418, 27-30. This case presents a clean vehicle to
decide both questions presented, which are equally
worthy of the Court’s attention. This Court should
grant certiorari and reverse.
37
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
SHARMILA ROY
P.O. Box 441
Laveen, Arizona 85339
(602) 930-2690
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioner
FEBRUARY 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.