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 Petition for a Writ of Certiorari to the

Arizona Supreme Court

_________

REPLY BRIEF IN SUPPORT 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

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ii

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

I.

AS THE STATE ACKNOWLEDGES,

THERE IS A CLEAR SPLIT WITH

RESPECT TO WHETHER COURTS

MUST APPLY CURRENT LAW

WHEN CORRECTING A SENTENCE

OR RESENTENCING ...................................... 3

II.

THERE IS A CLEAR SPLIT WITH

RESPECT TO WHETHER EDDINGS

ERROR REQUIRES RESENTENCING

IN THE TRIAL COURT ................................... 5

III. THIS CASE IS AN IDEAL VEHICLE

TO ADDRESS THE IMPORTANT

QUESTIONS PRESENTED............................. 8

CONCLUSION .......................................................... 10

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Alleyne v. United States,

570 U.S. 99 (2013) .................................................. 4

Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015) ............................................ 8

Burrell v. United States,

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

Davis v. Coyle,

475 F.3d 761 (6th Cir. 2007) .............................. 5, 6

Eddings v. Oklahoma,

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

Harvard v. State,

486 So.2d 537 (Fla. 1986) ...................................... 5

Lockett v. Ohio,

438 U.S. 586 (1978) ................................................ 7

Mills v. Maryland,

486 U.S. 367 (1988) ................................................ 7

Paxton v. Ward,

199 F.3d 1197 (10th Cir. 1999) .......................... 5, 6

Penry v. Lynaugh,

492 U.S. 302 (1989) ................................................ 7

People v. Davis,

706 N.E.2d 473 (Ill. 1998) ...................................... 5

Richardson v. Gramley,

998 F.2d 463 (7th Cir. 1993) .............................. 2, 3

Ring v. Arizona,

536 U.S. 584 (2002) ............................................ 2, 4

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Skipper v. South Carolina,

476 U.S. 1 (1986) .................................................... 6

State v. Bible,

858 P.2d 1152 (Ariz. 1993) ..................................... 7

State v. Fleming,

61 So.3d 399 (Fla. 2011) ........................................ 3

State v. Kilgore,

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

State v. McMurtrey,

664 P.2d 637 (Ariz. 1983) ....................................... 7

State v. Roberts,

998 N.E.2d 1100 (Ohio 2013) ............................. 5, 6

United States v. Booker,

543 U.S. 220 (2005) ................................................ 4

United States v. Hadden,

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

United States v. Pizarro,

772 F.3d 284 (1st Cir. 2014) .............................. 3, 4

CONSTITUTIONAL PROVISION:

U.S. Const. art. VI, cl. 2............................................ 8

STATUTE:

Ariz. Rev. Stat. Ann. § 13-755(C) ............................. 7

IN THE

Supreme Court of the United States

_________

No. 18-1109

_________

JAMES ERIN MCKINNEY,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

_________

On Petition for a Writ of Certiorari to the

Arizona Supreme Court

_________

REPLY BRIEF IN SUPPORT OF

CERTIORARI

_________

INTRODUCTION

This petition not only involves the ultimate sanction in our system of justice, it also presents two

clear splits on grave matters of constitutional law.

The questions presented affect at least 20 death

penalty cases, including this one, and the State has

identified no vehicle problems. See Arizona Capital

Representation Project and Arizona Attorneys for

Criminal Justice Amicus Br. 3. This Court’s intervention is warranted.

For more than two decades, James Erin McKinney

has been sentenced to death. And for more than two

decades, he has sought consideration of mitigating

(1)

2

evidence of his horrific childhood before the court

that sentenced him to death. Despite numerous

appeals—and the grant of habeas corpus relief by the

Ninth Circuit—McKinney’s straightforward request

for the same treatment as any other capital defendant has once again been denied by the Arizona

Supreme Court.

The State of Arizona does not dispute that under

current law, McKinney is entitled to resentencing by

a jury, with full consideration of the mitigating

evidence in his case. It instead argues that McKinney is not entitled to a jury sentence because his

conviction became final in 1996, prior to this Court’s

decision in Ring v. Arizona, 536 U.S. 584 (2002). As

five state and federal courts have held, however,

where a court resentences a defendant or corrects his

sentence—as occurred in this case—current law

applies. See infra pp. 3-4. Only the Seventh Circuit

joins the Arizona Supreme Court in applying abrogated precedent in sentence correction proceedings.

See Pet. App. 3a-4a; Richardson v. Gramley, 998 F.2d

463, 467-468 (7th Cir. 1993). This clear split is

plainly certworthy. See Phillips Black, Inc. Amicus

Br. 6-12.

There is a further problem with the decision below.

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

which this Court decided long before McKinney’s

sentencing—a “sentencer” in a capital case may not

“refuse to consider, as a matter of law, any relevant

mitigating evidence.” Id. at 114 (emphasis omitted).

McKinney’s sentence violated Eddings. See Pet.

App. 50a. Five state and federal courts have held

that the remedy for Eddings error is resentencing in

the trial court. See infra pp. 5-6. The Arizona Su-

3

preme Court refused to grant McKinney resentencing and instead conducted its own review of the

mitigating evidence in his case. See Pet. App. 4a.

This straightforward division in authority likewise

requires the Court’s attention.

The Court should grant certiorari and reverse.

I. AS THE STATE ACKNOWLEDGES, THERE

IS A CLEAR SPLIT WITH RESPECT TO

WHETHER

COURTS

MUST

APPLY

CURRENT LAW WHEN CORRECTING A

SENTENCE OR RESENTENCING.

The State does not contest that the decision below

deepens a split between at least five state and federal courts. See Opp. 7-8. The Arizona Supreme Court

and the Seventh Circuit hold that the law in effect at

the time a defendant’s conviction first becomes final

governs resentencing and sentence correction proceedings. See Pet. App. 3a-4a; Richardson, 998 F.2d

at 467-468. In contrast, the Florida Supreme Court,

Washington Supreme Court, and Second Circuit hold

that 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); Burrell v. United States,

467 F.3d 160, 165-166 (2d Cir. 2006) (Sotomayor, J.).

That division in authority—which is not in dispute—

is reason enough to grant certiorari.

The State nevertheless argues that the split “is not

as stark” as McKinney suggests because it does not

extend to the First or Fourth Circuits. Opp. 7.

According to the State, United States v. Pizarro, 772

F.3d 284 (1st Cir. 2014), is distinguishable because

4

in that case, the defendant was “awaiting resentencing when Alleyne was decided,” whereas “the error

correction instruction in Petitioner’s case did not

issue until more than ten years had elapsed since the

advent of Ring.” Opp. 8. But that is precisely the

point: In both Pizarro and the case at bar, the defendant’s sentence was reconsidered after a change

in the law. In that situation, the First Circuit applies current law, while the Arizona Supreme Court

does not, creating a clear split that requires this

Court’s intervention.

The same is true of United States v. Hadden, 475

F.3d 652 (4th Cir. 2007). There, the defendant’s

sentence became final on direct review. See id. at

654. The defendant then sought post-conviction

relief, and the federal district court entered a corrected sentence without conducting a resentencing

hearing. See id. The defendant appealed his corrected sentence to the Fourth Circuit, which denied

relief. Id. at 658. While the defendant’s rehearing

petition was pending, this Court decided United

States v. Booker, 543 U.S. 220 (2005). On rehearing,

the Fourth Circuit concluded that because the district court had “corrected” the defendant’s sentence—

and the appeal of the sentence correction was still

pending—Booker applied to the defendant’s case.

See Hadden, 475 F.3d at 660, 670-671.

Hadden is directly on point: The Fourth Circuit

held that where a defendant’s sentence becomes

final, and is later “corrected” through post-conviction

proceedings, current law applies to the corrected

sentence. In contrast, the Arizona Supreme Court

held below that where a defendant’s sentence becomes final, and is later “corrected” through further

5

proceedings, current law does not apply to the corrected sentence. The Court should resolve this clear

division in authority.

II. THERE IS A CLEAR SPLIT WITH RESPECT

TO

WHETHER

EDDINGS

ERROR

REQUIRES RESENTENCING IN THE TRIAL

COURT.

1. The State does not contest that in at least five

courts, McKinney would be entitled to resentencing

to correct the Eddings error in his death sentence.

See, e.g., Harvard v. State, 486 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, 774775 (6th Cir. 2007) (Coyle); Paxton v. Ward, 199 F.3d

1197, 1220 (10th Cir. 1999). Instead, the State

asserts that there is no split with respect to which

court may correct an Eddings error. See Opp. 9.

Each of the cases cited by McKinney, however, states

that the correction of Eddings error requires resentencing in the trial court.

In Harvard, the Florida Supreme Court stated that

“a new sentencing hearing must be held before the

trial judge.” 486 So.2d at 539. In Roberts, the Ohio

Supreme Court remanded “for resentencing” so that

“the trial court” can “review the entire record.” 998

N.E.2d at 1115. And in Davis, the Illinois Supreme

Court remanded “to the circuit court for a new sentencing hearing.” 706 N.E.2d at 488. The Sixth

Circuit concluded in Coyle that “reweighing” of the

evidence by “the state appellate court” would not

correct the Eddings error and that “the case must be

remanded for a new sentencing hearing.” 475 F.3d

at 774-775. The Tenth Circuit similarly held in

6

Paxton that reweighing of evidence on appeal “does

not address the nature of the constitutional violations or fully correct the errors.” 199 F.3d at 1220.

The State does not cite or discuss these cases, which

plainly cut against its position.1

The decision below departed from the established

precedent of five other courts. Whether a defendant

in a capital case is entitled to resentencing in the

trial court to correct a constitutional error in his

death sentence should not be a matter of geography.

This Court’s intervention is warranted.

2. The State asserts that the “Arizona Supreme

Court is the only court with the authority to correct”

the Eddings error in McKinney’s conviction. Opp. 9.

That misses the point. The question in this case is

not whether the Arizona Supreme Court had authority to address the Ninth Circuit’s habeas ruling; it is

instead whether the Arizona Supreme Court was

required as a matter of federal law to remand

McKinney’s case for resentencing in the trial court.

1

The State suggests that the Eddings error occurred during the

Arizona Supreme Court’s independent review of McKinney’s

death sentence. See Opp. 9. The Ninth Circuit, however,

concluded that the trial court applied the Arizona Supreme

Court’s unconstitutional causal nexus test for mitigating

evidence, see Pet. App. 51a-52a, and that the Arizona Supreme

Court “accepted the conclusion of the sentencing judge that, as

a factual matter, McKinney had not shown that his PTSD had

causally contributed to the murders,” id. at 53a. In any event,

multiple courts have held that appellate reweighing cannot

correct Eddings error, creating a split on this issue. See

Paxton, 199 F.3d at 1220 (citing Skipper v. South Carolina, 476

U.S. 1, 8 (1986)); Roberts, 998 N.E.2d at 1115; Coyle, 475 F.3d

at 774-775.

7

That question has a straightforward answer. As this

Court has repeatedly stated, the “reasoning in Lockett and Eddings * * * 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.” Penry v. Lynaugh, 492 U.S.

302, 328 (1989) (internal quotation marks omitted);

see also Mills v. Maryland, 486 U.S. 367, 375 (1988)

(“Because the sentencer’s failure to consider all of the

mitigating evidence risks erroneous imposition of the

death sentence * * *, it is our duty to remand this

case for resentencing.” (brackets omitted)).

To the extent the State is arguing that the Arizona

Supreme Court was prohibited as a matter of state

law from remanding McKinney’s case for resentencing, that is incorrect. The independent review statute cited by the State provides that the Arizona

Supreme Court may “remand[ ] a case for further

action if the trial court erroneously excluded evidence or if the appellate record does not adequately

reflect the evidence presented.” Opp. 10 (quoting

Ariz. Rev. Stat. Ann. § 13-755(C)). Indeed, the

Arizona Supreme Court has acknowledged that it

has the authority to “remand for resentencing” where

the “trial judge erred with respect to aggravating or

mitigating circumstances.” State v. Bible, 858 P.2d

1152, 1211-12 (Ariz. 1993); see also State v.

McMurtrey, 664 P.2d 637, 646 (Ariz. 1983).

Even if Arizona’s independent review statute precluded remand to the trial court—and it plainly does

not—it would not affect the outcome of this petition.

McKinney’s death sentence is unconstitutional. Pet.

App. 67a-68a. Whether the Eddings error in McKinney’s sentence can be corrected through appellate

8

reweighing of the mitigating and aggravating evidence is a matter of federal law. See U.S. Const. art.

VI, cl. 2; Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378, 1383 (2015) (Courts “must not give

effect to state laws that conflict with federal laws.”).

The Court should grant certiorari and address that

federal question, which has divided the state and

federal courts.

III. THIS CASE IS AN IDEAL VEHICLE TO

ADDRESS THE IMPORTANT QUESTIONS

PRESENTED.

This case presents a clean vehicle to resolve the

questions presented. The Arizona Supreme Court

passed on both questions below, concluding that

McKinney is not entitled to the benefit of current law

and that the correction of Eddings error does not

require resentencing in the trial court. See Pet. App.

3a-4a. Numerous state and federal courts have

reached the opposite conclusion. For good reason:

When a court exercises discretion in sentence correction or resentencing proceedings, it is required to

apply current law. See supra p. 3. That is certainly

true here, where the Arizona Supreme Court

weighed the mitigating evidence of McKinney’s

horrific childhood for the first time below. See Pet.

21-23.

Evidence of childhood trauma, moreover, has a

significant impact on capital sentencers. See Promise of Justice Initiative and National Association for

Public Defense Amicus Br. 25-27 (cataloguing cases).

Indeed, “the Arizona Supreme Court has been dismissive about mitigation that jurors find powerful

and as a reason to sentence to life.” Arizona Capital

Representation Project and Arizona Attorneys for

9

Criminal Justice Amicus Br. 15-18. As multiple

courts have held, McKinney is entitled to present

this evidence in the trial court, where it will be

considered by the sentencing body. See supra p. 5-6.

The decision below is wrong, the splits are entrenched, and the resolution of this petition will

affect at least 19 other death penalty cases. See Pet.

24; see also Arizona Capital Representation Project

and Arizona Attorneys for Criminal Justice Amicus

Br. 3, 6-7. The State does not identify any vehicle

problems, and there are none. The Court should

grant certiorari and reverse.

10

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

MAY 2019