Petition for Writ of Certiorari — Leroy McGill, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

CAPITAL CASE

No. 22IN THE

Supreme Court of the United States

___________

LEROY MCGILL,

v.

DAVID SHINN, ET AL.,

__________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

XIAO WANG

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

JON M. SANDS

JENNIFER Y. GARCIA

FEDERAL PUBLIC

DEFENDER’S OFFICE

850 West Adams Street

Suite 201

Phoenix, AZ 85007

JEFFREY T. GREEN*

ALEX E. SIRIO

SIDLEY AUSTIN LLP

1501 K STREET NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

STEPHEN TANG

SIDLEY AUSTIN LLP

555 California Street,

Suite 2000

San Francisco, CA 94104

Counsel for Petitioner

July 8, 2022

*Counsel of Record

i

QUESTION PRESENTED

The Ex Post Facto Clause prohibits retroactive increases in criminal punishment. When Mr. McGill

committed the crime for which he was convicted, Arizona law did not allow the State to sentence him to

death. Instead, the State sentenced him to death under a provision enacted after the crime occurred. Did

the Ninth Circuit err in holding that Arizona did not

violate the Ex Post Facto Clause by sentencing Mr.

McGill to death under the later-enacted statute simply

because that statute could be characterized as “procedural?”

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

The petitioner is Leroy McGill.

Respondents are David Shinn, in his official capacity

as Director of the Arizona Department of Corrections,

and Walter Hensley, in his official capacity as Warden

of the Arizona Department of Corrections – Eyman

Complex.

No party is a corporation.

iii

RULE 14.1(B)(III) STATEMENT

This case arises from the following proceedings in

the Arizona State Court system, the United States

District Court for the District of Arizona, and the

United States Court of Appeals for the Ninth Circuit:

McGill v. Shinn, No. 19-99002 (9th Cir. Feb. 9,

2022);

McGill v. Shinn, 16 F.4th 666 (9th Cir. 2021);

McGill v. Shinn, No. CV-12-01149, 2019 WL 160732

(Jan. 10, 2019);

McGill v. Arizona, 549 U.S. 1324 (2007);

State v. McGill, 140 P.3d 930 (Ariz. 2006).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court directly related to this case.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

ii

RULE 14.1(b)(iii) STATEMENT ..........................

iii

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

v

OPINIONS BELOW .............................................

1

JURISDICTION ...................................................

1

LEGAL FRAMEWORK ........................................

1

STATEMENT OF THE CASE..............................

2

A. Introduction ..............................................

2

B. Arizona Law ..............................................

2

C. Factual and Procedural History ...............

3

REASONS FOR GRANTING THE PETITION ...

6

I. THE NINTH CIRCUIT’S TEST IS CONTRARY TO THIS COURT’S PRECEDENT

.......................................................................

6

II. THE NINTH CIRCUIT UNREASONABLY

APPLIED THIS COURT’S PRECEDENTS

10

A. Collins is Inapposite .................................

11

B. Dobbert is Inapposite ................................

13

III. THE QUESTION PRESENTED IS EXCEPTIONALLY IMPORTANT ...........................

15

CONCLUSION .....................................................

17

APPENDICES

APPENDIX A: Opinion, McGill v. Shinn, No. 1999002 (9th Cir. Oct. 21, 2021) ...........................

1a

v

APPENDIX B: Order, McGill v. Ryan, No. CV12-01149-PHX-JJT (D. Ariz. Jan. 9, 2019) ....... 86a

APPENDIX C: Order Denying Rehearing En

Banc, McGill v. Shinn, No. 19-99002 (9th Cir.

Feb. 9, 2022)....................................................... 136a

APPENDIX D: En Banc Opinion, State of Arizona v. McGill, 140 P.3d 930 (Ariz. 2006) ........ 137a

vi

TABLE OF AUTHORITIES

CASES

Page

Blue v. State,

303 So.3d 714 (Miss. 2020) .......................

15

Brown v. Payton,

544 U.S. 133 (2005) ...................................

6

California Dep’t of Corr. v. Morales,

514 U.S. 499 (1995) ................................... 8, 9

Carmell v. Texas,

529 U.S. 513 (2000) ............................... 8, 14, 16

Coleman v. McCormick,

874 F.2d 1280 (9th Cir. 1989) ...................

15

Collins v. Youngblood,

497 U.S. 37 (1990) ................................. 7, 11, 12

Dobbert v. Florida,

432 U.S. 282 (1977) .............................. 7, 13, 14

Evans v. Gerry,

647 F.3d 30 (1st Cir. 2011) .......................

10

Florida v. Miller,

482 U.S. 423 (1987) ..................................

7

Garner v. Jones,

529 U.S. 244 (2000) ................................... 8, 9

Holmes v. Christie,

14 F. 4th 250 (3d Cir. 2021) ......................

10

Lockyer v. Andrade,

538 U.S. 63 (2003) .....................................

6

People v. Aguayo,

840 P.2d 336 (Colo. 1992) ......................... 14, 15

Peugh v. United States,

569 U.S. 530 (2013) ...................................

8

Ring v. Arizona (Ring I),

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

Ruhlman v. Brunsman,

10

664 F.3d 615 (6th Cir. 2011) .....................

State v. Ring (Ring II),

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

7, 11

vii

TABLE OF AUTHORITIES—continued

Page

State v. Sizemore,

S-0900-CR-20010338 (Ariz. Super. Ct.

Navajo County July 24, 2022) .................. 5, 14

United States v. Gayden,

977 F.3d 1146 (11th Cir. 2020) .................

10

Warren v. Miles,

230 F.3d 688 (5th Cir. 2000) .....................

10

Woods v. Donald,

575 U.S. 312 (2015) ...................................

6

STATUTES

Arizona Revised Statute

§ 13-1105 (2001) .......................................

Arizona Revised Statute

§ 13-703 (2001) .........................................

OTHER AUTHORITIES

Arizona Laws 2002, 5th S.S., Ch.1, § 3 .......

David Alan Sklansky, The Changing

Political

Landscape

for

Elected

Prosecutors, 14 Ohio St. J. Crim. Law 647

(2017) .........................................................

Frank R. Baumgartner et al., Throwing

Away

the

Key:

The

Unintended

Consequences of “Tough-on-Crime” Laws,

19 Perspectives on Politics 1233 (2021) ...

Janeen M. Carruthers, Substance and

Procedure in the Conflict of Laws: A

Continuing Debate in Relation to

Damages, 53 The International and

Comparative Law Quarterly no. 3 691,

694 (2004), http://www.jstor.org/stable/36

63295 .........................................................

2,3

5

3

16

16

8

viii

TABLE OF AUTHORITIES—continued

Marc Mauer, Why Are Tough on Crime

Policies So Popular?, 11 Stan. L. & Pol’y

Rev. 9 (1999) ..............................................

R. Brian Tanner, A Legislative Miracle:

Revival Prosecutions and the Ex Post

Facto Clauses, 50 Emory L.J. 397

(2001) .........................................................

Sup. Ct. R. 10(c)............................................

U.S. Const. art. I, § 10, cl. 1 .........................

Page

16

8

6

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Leroy McGill respectfully petitions for a

writ of certiorari to review the opinion of the Ninth

Circuit.

OPINIONS BELOW

The Ninth Circuit’s opinion affirming the denial of

the petition for writ of habeas corpus is reported at 16

F.4th 666. Pet. App. 1a–85a. The Ninth Circuit’s order

denying the petition for rehearing and rehearing en

banc is unpublished. Pet. App. 136a. The District of

Arizona’s order denying the petition for writ of habeas

corpus is unpublished and available at 2019 WL

160732. Pet. App. 86a–135a.

JURISDICTION

The United States Court of Appeals for the Ninth

Circuit entered judgment on October 21, 2021. Pet.

App. 1a. A petition for rehearing and rehearing en

banc was denied on February 9, 2022. Pet. App. 136a.

Justice Kagan initially extended this petition’s filing

date to June 9, 2022, and further extended its filing

date to July 9, 2022. Application for Extension of Time,

No. 21A672 (Apr. 29, 2022); Application for Extension

of Time, No. 21A672 (May 27, 2022). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

LEGAL FRAMEWORK

Article 1, Section 10 of the United States Constitution provides, in relevant part, that “No State shall . . .

pass any . . . ex post facto Law . . . .” U.S. Const. art. I,

§ 10, cl. 1.

2

STATEMENT OF THE CASE

A. Introduction

When Leroy McGill committed the crime for which

he was convicted, he could not have been sentenced to

death. Days earlier, this Court had invalidated part of

Arizona’s death penalty statute in Ring v. Arizona

(“Ring I”), 536 U.S. 584 (2002), so capital punishment

was not available. Only later, and only after Mr.

McGill’s crime, did the State amend its statute to correct the deficiencies identified by this Court. It was under this later-enacted statute that Mr. McGill was sentenced to death.

On these facts, this case should have been a straightforward application of the Ex Post Facto Clause. The

Clause prohibits a sentencing court from inflicting a

greater punishment than was available when the

crime occurred. According to the Ninth Circuit and the

Arizona Supreme Court, however, Arizona’s peculiar

statutory structure precluded this straightforward result. Arizona’s criminal statutes contained two interdependent death penalty provisions, and Ring I struck

down only the procedural one. Because the legislative

changes that Arizona made in response to Ring I were

thus merely procedural, they reasoned, Mr. McGill’s

sentence did not violate the Ex Post Facto Clause.

Applying such a rigid substance-procedure distinction is contrary to a long line of clearly established case

law from this Court and, in any event, would render

the Clause a nullity.

B. Arizona Law

During the period leading up to Mr. McGill’s crime,

Arizona codified the death penalty in two interconnected provisions. The first provision was Arizona Revised Statute § 13-1105 (2001), which defined first

3

degree murder and set forth that it “[was] punishable

by death or life imprisonment as provided by []§ 13703.” Section 13-703, in turn, established the procedures by which a defendant could be sentenced to

death. 1

On June 24, 2002, this Court held § 13-703 unconstitutional. Ring I, 536 U.S. 584. For thirty-eight days

thereafter, Arizona had no valid capital punishment

statute, so the maximum sentence available was life

without parole. It was not until August 1, 2002, when

Arizona enacted a new, constitutional death penalty

procedure, that the death penalty once again became

a viable punishment. Arizona Laws 2002, 5th S.S.,

Ch.1, § 3.

C. Factual and Procedural History

Mr. McGill committed his crime on July 13, 2002,

during the thirty-eight day period when the death penalty was unavailable in Arizona. Two years later, a

jury found Mr. McGill guilty and sentenced him to

death under the death penalty statute as enacted on

August 1, 2002.

1 Among other things, § 13-703 required “the judge who presided

at trial to conduct a separate sentencing hearing to determine the

existence or nonexistence of certain enumerated circumstances

for the purpose of determining” whether to impose a death sentence. Ring I, 536 U.S. at 592 (cleaned up). It further instructed

that the hearing “be conducted before the court alone” and that

the court was to “make all factual determinations required” by

law. Id. After the hearing, the statute mandated that the judge

“determine the presence or absence of [certain] enumerated ‘aggravating circumstances’ and any ‘mitigating circumstances.’” Id.

If the court found at least one aggravating factor and there were

no sufficiently substantial mitigating circumstances, § 13-703 authorized the court to impose the death penalty. Id. at 592–93.

4

The Arizona Supreme Court affirmed. State v.

McGill (“McGill I”), 140 P.3d 930 (Ariz. 2006). Mr.

McGill argued that his death sentence violated the Ex

Post Facto Clause, but the court summarily disposed

of his argument by citing one of its prior cases. Pet.

App. 172a (“We rejected this argument in State v. Ring

[“Ring II”], [65 P.3d 915, 928 (Ariz. 2003)].”).

Following unsuccessful state post-conviction proceedings, Mr. McGill filed a petition for writ of habeas

corpus in federal court. In his habeas petition, he again

raised his Ex Post Facto Clause argument. Ultimately,

the Ninth Circuit concluded that, under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the Arizona Supreme Court had not unreasonably applied clearly established federal law

when determining that “Arizona had only made a procedural change to its death penalty process, and that

change did not violate the Ex Post Facto Clause.” Pet.

App. 61a (“McGill II”). The court of appeals acknowledged that the Arizona Supreme Court had relied upon

Ring II in reaching that conclusion, and that Mr.

McGill was in a “different position” compared to the

defendants in Ring II. Id. at 67a. Although the court

did not “go so far as to decide that Arizona’s new

scheme is consistent with the Ex Post Facto Clause,”

it held that the Arizona Supreme Court’s decision was

not unreasonable. Id. at 73a.

Judge Milan Smith dissented. Contrary to the majority, he explained that the proper and clearly established test for an Ex Post Facto Clause violation is not

whether a change can be labelled “procedural” or “substantive” but rather “whether a given change in law

presents a ‘sufficient risk of increasing the measure of

punishment attached to the covered crimes.’” Id. at

80a (Smith, J., dissenting) (quoting Peugh v. United

States, 569 U.S. 530, 539 (2013)). Judge Smith found

5

that test satisfied because there was “no possibility of

the death penalty” when Mr. McGill committed his

crime, and it was only Arizona’s subsequent re-enactment of a constitutionally permissible death sentencing scheme that reinstated the “possibility of the death

penalty.” Id. at 82a, 84a–85a.

That conclusion stemmed in large part from the text

and structure of Arizona’s death penalty statute. Although Ring I had left one half—namely § 13-1105—of

Arizona’s capital punishment scheme undisturbed,

§ 13-1105 explicitly incorporated and relied upon § 13703. Id. at 81a. Specifically, § 13-1105 said that “[f]irst

degree murder is punishable by death or life imprisonment as provided by § 13-703.” Id. at 79a (cleaned up,

emphasis added). And because § 13-703 had been held

unconstitutional, “a potential offender [looking at the

interdependent statutes would be] on notice that he

could not be sentenced to death for first degree murder.” Id. at 81a. In other words, when Ring I rendered

the prior version of § 13-703 a “legal nullity, the statute [became] crystal clear that life imprisonment alone

[was] the punishment for first degree murder committed during the period between Ring I and the reenactment of § 13-703.” Id. Arizona conceded as much. At

oral argument, the State repeatedly admitted that Mr.

McGill could not have been sentenced to death had the

Arizona legislature not re-enacted § 13-703. Id. at 80a

n.1; see also State v. Sizemore, S-0900-CR-20010338

(Ariz. Super. Ct. Navajo County July 24, 2022) (defendant facing possible death sentence invoked right

to immediate sentencing and was sentenced to life after the state and court agreed that there was no viable

death penalty statute in effect).

After the panel issued its opinion, Mr. McGill filed a

petition for rehearing and rehearing en banc, which

was denied.

6

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUIT’S TEST IS CONTRARY TO THIS COURT’S PRECEDENT

The Ninth Circuit applied the wrong test for Ex Post

Facto Clause violations. Rather than follow the long

string of this Court’s cases establishing that violations

arise when retroactive application of a law creates sufficient risk of increased punishment, the Ninth Circuit

adopted the Arizona Supreme Court’s conclusion that

procedural changes are strictly excluded from the

reach of the Ex Post Facto Clause. Such a decision is

so contrary to this Court’s precedents that it cannot

survive even under AEDPA’s deferential standard of

review. 2 See Sup. Ct. R. 10(c) (Review may be granted

when “a United States court of appeals . . . has decided

an important federal question in a way that conflicts

with relevant decisions of this Court.”).

To reach this erroneous conclusion, the Ninth Circuit turned to Ring II, which the Arizona Supreme

Court had relied upon to affirm Mr. McGill’s sentence.

2 AEDPA authorizes federal courts to grant habeas relief “when a

state court’s decision on the merits was ‘contrary to, or involved

an unreasonable application of, clearly established Federal law,

as determined by’ decisions from [the U.S. Supreme] Court.”

Woods v. Donald, 575 U.S. 312, 315 (2015) (quoting 28 U.S.C.

§ 2254(d)). A state court’s decision “is contrary to this Court’s

clearly established precedents if it applies a rule that contradicts

the governing law set forth in this Court’s cases.” Brown v. Payton, 544 U.S. 133, 134 (2005). “[U]nder the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from

this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63,

75 (2003). Moreover, when a state court’s decision is “objectively

unreasonable,” it is improper for a federal court to defer to the

state court’s decision. Id.

7

See Pet. App. 65a–66a. In Ring II, the Arizona Supreme Court reasoned that “a legislative act affecting

changes in criminal procedure, including procedural

changes that disadvantage a defendant, generally does

not violate the Ex Post Facto Clause” because the

Clause “reach[es] only those legislative enactments

that affect substantive criminal law.” Ring II, 65 P.3d

at 927 (citing Dobbert v. Florida, 432 U.S. 282, 292

(1977); Collins v. Youngblood, 497 U.S. 37, 45 (1990)).

Accordingly, it found that “[t]he question before us . . .

is whether Arizona’s new sentencing statutes worked

a substantive or procedural change in the law.” Id. The

Ninth Circuit adopted this test, holding categorically

that “procedural changes fall outside the protections of

the Ex Post Facto Clause.” Pet. App. 68a–69a. Thus,

because Arizona’s change in law was procedural, it

was reasonable for the Arizona Supreme Court to conclude Mr. McGill’s death sentence was constitutional.

Id.

But, this Court has, over the last thirty years, repeatedly rejected the substance-procedure distinction

that the Ninth Circuit endorsed here. Although Dobbert, 432 U.S. at 293, observed that “a procedural

change is not ex post facto” “[e]ven though it may work

to the disadvantage of a defendant,” a long line of this

Court’s subsequent decisions shows that the Court has

since abandoned that rule. In Florida v. Miller, for example, the Court observed that “even if the statute

takes a seemingly procedural form,” it is still ex post

facto if it “alters a substantial right.” 482 U.S. 423, 433

(1987) (quoting Weaver v. Graham, 450 U.S. 24, 29

n.12 (1981)). Likewise in Collins, this Court explained

that “simply labeling a law ‘procedural’ . . . does not

thereby immunize it from scrutiny under the Ex Post

Facto Clause.” 497 U.S. at 46. Most significantly, over

two decades ago, the Court conclusively held that the

8

substance-procedure test was not proper. In Carmell

v. Texas, 529 U.S. 513 (2000), the Court explained Collins “eliminated a doctrinal hitch . . . which purported

to define the scope of the [Ex Post Facto] Clause along

an axis distinguishing between laws involving ‘substantial protections’ and those that are merely ‘procedural.’” Id. at 539. In fact, relying on the substanceprocedure distinction to evaluate Ex Post Facto Clause

claims is contrary to the Constitution, and the Court

pointed out that Collins had overruled two prior decisions precisely because they depended on that distinction. Id. 3

Rather than asking if a change in law is substantive

or procedural, the correct test is “whether the change

in law creates a ‘sufficient’ or ‘significant’ risk of increasing the punishment for a given crime.” Peugh,

569 U.S. at 541 n.4. Two decisions—California Dep’t of

Corr. v. Morales, 514 U.S. 499 (1995), and Garner v.

Jones, 529 U.S. 244 (2000)—illustrate this test.

In Morales, a petitioner challenged changes to California’s parole rules. 514 U.S. at 503–04. At the time

the petitioner committed his crime, California law required the Board of Prison Terms to hold annual parole hearings. Id. Under the amended law, the Board

3 Practitioners have roundly criticized the substance-procedure

distinction as unworkable. See, e.g., R. Brian Tanner, A Legislative Miracle: Revival Prosecutions and the Ex Post Facto Clauses,

50 Emory L.J. 397, 416–22 (2001) (arguing that “[t]he substantive-procedural dichotomy is traditionally difficult to define” and

observing that “[t]he definitions of ‘substance’ and ‘procedure’ are

themselves variable”) (internal citations omitted); Janeen M.

Carruthers, Substance and Procedure in the Conflict of Laws: A

Continuing Debate in Relation to Damages, 53 The International

and Comparative Law Quarterly no. 3 691, 694 n.22 (2004),

http://www.jstor.org/stable/3663295 (“The distinction between

substantive and procedural law is artificial and illusory.”).

9

could defer subsequent hearings for up to three years.

Id. The petitioner argued that applying the amendment to him violated the Ex Post Facto Clause because

it increased his punishment retroactively. Id. at 504–

05. The amendment was undeniably procedural because it “simply ‘alter[ed] the method to be followed’ in

fixing a parole release date under identical substantive standards.” Id. at 507–08. But the Court did not

decide the case on that basis. Instead, it analyzed

whether the amendments “produce[d] a sufficient risk

of increasing the measure of punishment” to determine

if the Ex Post Facto Clause applied. Id. at 509. When

the Court held that the Clause did not apply, it did so

because the amendments created only a speculative

risk of greater punishment, not because the amendments were procedural. Id. at 514.

Garner also involved changes to parole procedures.

529 U.S. at 246. Once again, it did not matter that the

changes were procedural. The relevant test was

whether “the law created a significant risk of increasing [the] punishment,” and this Court remanded the

case because the court of appeals did not properly apply that test. Id. at 255–57.

Taken together, Miller, Collins, Carmell, Morales,

and Garner demonstrate that the appropriate test for

assessing Mr. McGill’s claim under the Ex Post Facto

Clause is to ask whether there was a “sufficient or significant risk” that the change in law would increase his

punishment. Each of those five cases were available to

the Ninth Circuit here, and to the Arizona Supreme

Court when it decided Ring II (2003) and Mr. McGill’s

appeal (2006). The Ninth Circuit’s and the Arizona Supreme Court’s failures to apply the “sufficient or significant risk” test were therefore not only contrary to,

but an unreasonable application of this Court’s clearly

established law.

10

The question presented also affords this Court the

opportunity to bring uniformity to Ex Post Facto

Clause analysis outside the AEDPA context. That is

because the Ninth Circuit is not alone in clinging to, or

occasionally resurrecting, the defunct substance-procedure analytical structure. See, e.g., Ruhlman v.

Brunsman, 664 F.3d 615, 620 (6th Cir. 2011) (“[T]he

Ex Post Facto clause does not apply to procedural

changes.”). Other courts of appeal have heard this

Court’s message loudly and clearly. See, e.g., Evans v.

Gerry, 647 F.3d 30, 32 (1st Cir. 2011) (“[T]he Supreme

Court has said that . . . the Ex Post Facto clause could

apply to statutes adopting procedural changes.”);

Holmes v. Christie, 14 F. 4th 250, 264 (3d Cir. 2021)

(“[An Ex Post Facto Clause] test that formalistically

distinguishes between substantive rules and procedural ones finds no foundation in controlling cases or

the functional approach that animates them.”). And

still others, without expressly addressing the substance-procedure distinction, have adopted the riskbased test from Morales, Garner, and Peugh. See, e.g.,

Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000)

(“For an ex post facto violation to occur . . . the new law

must create a sufficient risk of increasing the punishment attached to the defendant’s crimes.”); United

States v. Gayden, 977 F.3d 1146, 1154 (11th Cir. 2020)

(applying the “sufficient risk” test). Accordingly, some

analytical uniformity can be achieved through review

of the Ninth Circuit’s “procedural exception” opinion

here.

II. THE NINTH CIRCUIT UNREASONABLY

APPLIED THIS COURT’S PRECEDENTS

The Ninth Circuit ignored the clearly established

line of precedent discussed above. Instead of applying

the “sufficient or significant risk” test, the Ninth Circuit relied on two inapposite cases—Collins and

11

Dobbert—which had been cited by the Arizona Supreme Court in Ring II. 4 Doing so was error.

A. Collins is Inapposite

Collins involved the “reformation” of a prior sentence in accordance with a Texas statute that was expressly retroactive. The defendant “was convicted in a

Texas court of aggravated sexual abuse.” Collins, 497

U.S. at 39. “The jury imposed punishment of life imprisonment and a fine of $10,000,” despite the fact that

Texas law prohibited the imposition of a fine in addition to a sentence of any term of imprisonment. Id. In

light of that prohibition, the defendant brought a postconviction challenge to both the “judgment and sentence.” Id. While that challenge was pending, Texas

passed a new statute which enabled “an appellate

court to reform an improper verdict that assesse[d] a

punishment not authorized by law.” Id. at 40. Subsequently, the Texas “Court of Criminal Appeals reformed the verdict in [defendant’s] case by ordering deletion of the $10,000 fine.” Id. (emphasis added).

4 The Ninth Circuit’s deference to Ring II was itself highly questionable. Ring II arose from this Court’s decision in Ring I, 536

U.S. 584, which invalidated Arizona’s death penalty statute as

unconstitutional under the Sixth Amendment. But that is where

the similarities to this case end. After this Court’s decision in

Ring I, the Arizona Supreme Court consolidated the cases of defendants who “either pled guilty to or were convicted by a jury of

first degree premeditated or felony murder” under the unconstitutional statutory scheme. Ring II, 65 P.3d at 925. Critically, and

unlike Mr. McGill, all of the defendants whose cases were consolidated had committed their crimes before this Court declared Arizona’s capital punishment statute unconstitutional. When those

defendants committed their crimes, there was a statutory scheme

in place under which each of the defendants could have been sentenced to death. Even the panel majority conceded that Mr.

McGill is in a very “different position from the defendants in Ring

II.” Pet. App. 66a–67a.

12

The defendant then filed a federal habeas petition,

arguing that the “retroactive application” of the new

Texas statute violated the Ex Post Facto Clause. Id.

The district court denied the petition because, among

other things, the defendant’s “punishment was not increased,” and instead “actually decreased” because the

fine was eliminated. Id. (cleaned up). The court of appeals reversed, but on review, this Court agreed with

the district court and denied defendant’s habeas petition. Critically, this Court held that there was no Ex

Post Facto Clause violation because application of the

new Texas law did not “make more burdensome the

punishment for a crime, after its commission.” Id. at

52.

That is miles apart from the circumstances here. As

discussed above, when Mr. McGill committed his

crime, the maximum sentence he could have received

was life imprisonment without the possibility of parole. Arizona’s newly passed death penalty statute

changed that by increasing the maximum available

punishment to death. Unlike Texas’s law in Collins, it

was not made retroactive. See id. at 40–41. Under that

new statute, Mr. McGill was sentenced to death—

something that could not have occurred under the capital punishment statutory scheme in place at the time

of the crime. In other words, applying the death penalty to Mr. McGill “ma[d]e more burdensome the punishment for [his] crime.” See id. at 52. Whereas the

new statute in Collins had the effect of decreasing the

defendant’s punishment, the new statute here had

precisely the opposite effect—namely, increasing Mr.

McGill’s maximum sentence from life imprisonment to

capital punishment. That being so, it was objectively

unreasonable for the Ninth Circuit and Arizona Supreme Court to rely on Collins to reject Mr. McGill’s

petition.

13

B. Dobbert is Inapposite

The Ninth Circuit’s and the Arizona Supreme

Court’s reliance on Dobbert was likewise objectively

unreasonable. This is primarily because the facts of

Dobbert are markedly different from those here. In

Dobbert, the petitioner, “[u]nder the Florida death

penalty statute then in effect[,] . . . was sentenced by

the trial judge to death.” 432 U.S. at 284 (emphasis

added). Later, in 1972, Florida “enacted a new death

penalty procedure.” Id. at 288. There was no Ex Post

Facto Clause violation because “[t]he new statute

simply altered the methods employed in determining

whether the death penalty was to be imposed; there

was no change in the quantum of punishment attached

to the crime.” Id. at 293–94 (footnote omitted).

In reaching this determination, the Supreme Court

relied on two key principles. The first was notice. Id.

at 297 (“[Florida] provided fair warning as to the degree of culpability which the State ascribed to the act

of murder.”); id. at 303 (Burger, C.J., concurring) (“Petitioner was at least constructively on notice that this

penalty might indeed follow his actions.”). Florida law

allowed for the death penalty and provided an accompanying procedure to impose such a punishment at the

time petitioner committed his crime, at sentencing,

and after the fact.

The second was fundamental fairness: “a procedural

change is not ex post facto” when it does not affect

“substantial personal rights against arbitrary and oppressive legislation.” Id. at 293; see also id. at 307 (Stevens, J., dissenting) (“[T]he Ex Post Facto Clause also

provides a basic protection against improperly motivated or capricious legislation.”). In Dobbert, no such

fairness concerns were implicated because the statute

in effect at the time of the offense was valid, and the

14

later-imposed statute was also valid. The death penalty was available at all times.

But these same principles point in the opposite direction as to Mr. McGill. At the time Mr. McGill committed his crime, “a look at [Arizona law] would actually put a potential offender on notice that he could not

be sentenced to death for first-degree murder.” Pet.

App. 81a (Smith, J., dissenting). That is because the

only means by which the death penalty could be imposed—Arizona Revised Statute § 13-703—had been

invalidated in Ring I, 536 U.S. at 609. Hence, Ring I

put Mr. McGill on notice that, under the law at the

time of the offense, “life imprisonment alone [was] the

punishment.” Pet App. 81a (Smith, J., dissenting) (emphasis added).

Likewise, as to fairness, Arizona has admitted that

“Mr. McGill could not have been sentenced to death”

for murder when he committed his crimes. Id. at 80a

n.1; see also State v. Sizemore, S-0900-CR-20010338.

If the Ex Post Facto Clause ensures that “the government abide by the rules of law it establishes to govern

the circumstances under which it can deprive a person

of his or her liberty or life,” Carmell, 529 U.S. at 533,

then exercising legislative authority where no such

power exists is paradigmatic of “arbitrary and oppressive legislation,” Dobbert, 493 U.S. at 293.

This reading of the Ex Post Facto Clause is consistent with that of other courts in similar circumstances. In June 1991, the Colorado Supreme Court

overturned Colorado’s death penalty statute. People v.

Aguayo, 840 P.2d 336, 337 (Colo. 1992). The state did

not enact a new statute until September 1991. Id. During this 76-day window, the defendants were charged

with murder. Id. On review, the Colorado Supreme

Court granted relief because “to impose a death penalty would, . . . inflict a greater punishment than the

15

law annexed to the crime when committed, thus violating both the federal and state constitutional proscriptions against ex post facto laws.” Id. at 339; accord Blue v. State, 303 So.3d 714, 719–20 (Miss. 2020)

(invalidating “sentence of life without parole” under

the Ex Post Facto Clause because it was “not available

for murder when [defendant] committed his crime”).

Similarly, the petitioner in Coleman v. McCormick,

874 F.2d 1280, 1289 (9th Cir. 1989) (en banc), was

granted relief because he “was sentenced to death under a [Montana] statute not in effect at the time of his

trial.” The petitioner was initially sentenced “under a

mandatory death penalty statute subsequently held to

be unconstitutional,” and he was then resentenced

pursuant to a newly enacted death penalty statute. Id.

at 1285. Because the death penalty statute under

which he was resentenced was not in effect at the time

the offense was committed, petitioner “was given no

notice whatsoever of the life and death consequences

of his actions.” Id. at 1288.

Against this backdrop—i.e., specific, material facts

distinguishing Mr. McGill’s case from Dobbert and

case law rejecting extension of Dobbert’s reasoning in

similar contexts—relying upon Dobbert was patently

unreasonable.

III. THE QUESTION PRESENTED IS EXCEPTIONALLY IMPORTANT

The question of when a procedural change to criminal laws falls under the scope of the Ex Post Facto

Clause is especially acute in the context of capital

cases like Mr. McGill’s. As the Court has recognized,

“death is different,” Ring I, 536 U.S. at 586–87. This

case is an excellent vehicle for the Court to provide

clarification as to proper analysis under the Ex Post

Facto Clause. Mr. McGill preserved his Ex Post Facto

16

Clause arguments throughout the case, and the Ninth

Circuit squarely addressed the question. See supra § I.

And the issue is dispositive. The Ninth Circuit rejected

all of Mr. McGill’s claims for habeas relief and, except

for his claim under the Ex Post Facto Clause, Mr.

McGill is not seeking review of any of his other claims

for relief.

Moreover, the question presented implicates the fundamental fairness of our criminal justice system. Fairness requires “having the government abide by the

rules of law it establishes to govern the circumstances

under which it can deprive a person of his or her liberty or life.” Carmell, 529 U.S. at 533. It is unfair, and

threatens trust in the justice system, when governments can punish acts which were legal when completed, or can increase punishments beyond those in

place at the time of an act. Normally, the Ex Post Facto

Clause prevents this. But when governments can

evade the Ex Post Facto Clause merely by characterizing changes to the criminal law as “procedural,” fairness is compromised.

Such concern is more than theoretical. The criminal

justice system is intricately intertwined with the political system, and as history has shown, politics can provide a powerful incentive to punish harshly. For example, in the 1990s, public concern about crime spiked,

Frank R. Baumgartner et al., Throwing Away the Key:

The Unintended Consequences of “Tough-on-Crime”

Laws, 19 Perspectives on Politics 1233, 1235 (2021),

and politicians flocked towards “tough-on-crime” positions to win office, David Alan Sklansky, The Changing Political Landscape for Elected Prosecutors, 14

Ohio St. J. Crim. Law 647, 668 (2017). Unsurprisingly,

that sentiment led to governments passing a wave of

punitive policies. Marc Mauer, Why Are Tough on

Crime Policies So Popular?, 11 Stan. L. & Pol’y Rev. 9,

17

10–11 (1999). The same political pressures buttressing

this phenomenon also create incentives for governments to apply enhanced punishments retroactively,

particularly where public opinion is animated by a demand for greater punishment in highly publicized

cases.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

XIAO WANG

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

JON M. SANDS

JENNIFER Y. GARCIA

FEDERAL PUBLIC

DEFENDER’S OFFICE

850 West Adams Street

Suite 201

JEFFREY T. GREEN*

ALEX E. SIRIO

SIDLEY AUSTIN LLP

1501 K STREET NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

STEPHEN TANG

SIDLEY AUSTIN LLP

555 California Street,

Suite 2000

Counsel for Petitioner

July 8, 2022

*Counsel of Record