Opposition Brief — Leroy McGill, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

No. 22–5073

In the

Supreme Court of the United States

LEROY MCGILL,

Petitioner,

v.

DAVID SHINN, et al.,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

MARK BRNOVICH

Attorney General

of Arizona

ERIN D. BENNETT

Assistant Attorney General

(Counsel of Record)

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

CAPITAL LITIGATION SECTION

2005 N. CENTRAL AVE.

PHOENIX, AZ 85004

602-542-4686

JEFFREY SPARKS

Deputy Solicitor General/

Section Chief of Capital Litigation

ERIN.BENNETT@AZAG.GOV

CLDOCKET@AZAG.GOV

Counsel for Respondents

QUESTION PRESENTED FOR REVIEW

Did the Ninth Circuit correctly conclude that the Arizona state courts reasonably

applied firmly established federal law in holding that Leroy McGill’s death sentence

did not violate the Ex Post Facto Clause?

2

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ................................................................... 2

TABLE OF CONTENTS ................................................................................................ 3

TABLE OF AUTHORITIES .......................................................................................... 4

INTRODUCTION .......................................................................................................... 6

STATEMENT OF THE CASE ....................................................................................... 7

SUMMARY OF ARGUMENT ....................................................................................... 9

REASONS FOR DENYING THE PETITION ............................................................ 10

I.

THE ARIZONA SUPREME COURT REASONABLY APPLIED

THIS COURT’S PRCEDENT TO CONCLUDE THAT MCGILL’S

DEATH SENTENCE DOES NOT VIOLATE THE EX POST

FACTO CLAUSE. ................................................................................... 10

A.

AEDPA Standard......................................................................... 10

B.

Application of AEDPA to McGill’s claim. ................................... 12

C.

The Arizona Supreme Court reasonably concluded that

application of Arizona’s revised death penalty statute to

McGill’s case does not violate the federal constitutional

prohibition against Ex Post Facto............................................... 13

D.

McGill’s reliance on other case law is inapposite. ...................... 18

CONCLUSION............................................................................................................. 19

3

TABLE OF AUTHORITIES

Cases

Page

Bell v. Cone, 535 U.S. 685 (2002) ................................................................................ 11

Blue v. State, 303 So.3d 714 (Miss. 2020) ................................................................... 19

Brecht v. Abrahamson, 507 U.S. 619 (1993) ............................................................... 12

Butler v. Mckellar, 494 U.S. 407 (1990) ........................................................................ 6

Carey v. Musladin, 549 U.S. 70 (2006) ....................................................................... 11

Carmell v. Texas, 529 U.S. 513 (2000) ........................................................................ 18

Coleman v. Mccormick, 874 F.2d 1280 (1989) ............................................................ 19

Collins v. Youngblood, 497 U.S. 37 (1990) .......................................................... Passim

Delgadillo v. Woodford, 527 F.3d 919 (9th Cir. 2008) ................................................ 10

Dobbert v. Florida, 432 U.S. 282 (1977).............................................................. Passim

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................. 11

Kring v. Missouri, 107 U.S. 221 (1883) ....................................................................... 18

Layne & Bowler Corp. v. West. Well Works, 261 U.S. 387 (1923) ................................ 6

Lindh v. Murphy, 521 U.S. 320 (1997) ........................................................................ 10

Lockyer v. Andrade, 538 U.S. 63 (2003) ...................................................................... 11

Miller v. Florida, 482 U.S. 423 (1987) .................................................................. 12–15

People v. Aguayo, 840 P.2d 336 (Colo. 1992)............................................................... 19

Peugh v. United States, 569 U.S. 530 (2013) .............................................................. 13

Ring v. Arizona, 536 U.S. 584 (2001) .................................................................. Passim

Schriro v. Summerlin, 542 U.S. 348 (2004) .......................................................... 14, 15

State v. Ring (Ring I), 65 P.3d 915 (Ariz. 2003) ....................................................... 7, 8

Thompson v. Utah, 170 U.S. 343 (1898) ..................................................................... 18

Weaver v. Graham, 450 U.S. 24 (1981) ....................................................................... 13

Williams v. Taylor, 529 U.S. 362 (2000) ..................................................................... 11

Wood v. Allen, 558 U.S. 290 (2010) ............................................................................. 10

Woodford v. Garceau, 538 U.S. 202 (2003) ................................................................. 10

Woodford v. Visciotti, 537 U.S. 19 (2002).................................................................... 10

Ylst v. Nunnemaker, 501 U.S. 797 (1991) ................................................................... 11

Statutes

28 U.S.C. § 2254(D)........................................................................................................ 8

28 U.S.C. § 2254(D)(1) ................................................................................................. 11

28 U.S.C. § 2254(D)(1), (2) ..................................................................................... 10, 18

28 U.S.C. § 2254(D)(2) ................................................................................................. 19

28 U.S.C. § 2254(E)(1) ................................................................................................. 10

A.R.S. § 13–703 ...................................................................................................... 14, 17

A.R.S. § 13–703.01 .................................................................................................... 7,14

A.R.S. § 13–1105 .................................................................................................... 14–16

4

Constitutional Provisions

U.S. Const. Art. I, § 10 ................................................................................................. 12

Rules

U.S. Sup. Ct. R. 10 ......................................................................................................... 6

Other Authorities

S.B. 1001 ................................................................................................................ 13, 14

5

INTRODUCTION

Petitioner Leroy McGill has presented no compelling reason for this Court to

grant certiorari. He has not established that the Ninth Circuit Court of Appeals’

decision conflicts with a decision from another United States Court of Appeals or a

state court of last resort, that the Ninth Circuit decided an important question of

federal law not yet settled by this Court, or that the Ninth Circuit “decided an

important federal question in a way that conflicts with relevant decisions of this

Court.” U.S. SUP. CT. R. 10.

Additionally, the error McGill alleges affects only his case. See SUP. CT. R.

10 (“A petition for a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly stated rule

of law.”); Butler v. McKellar, 494 U.S. 407, 429 (1990) (Brennan, J., dissenting)

(“[The] Supreme Court’s burden and responsibility are too great to permit it to

review and correct every misstep made by the lower courts in the application of

accepted principles. Hence the Court generally will not grant certiorari just because

the decision below may be erroneous.”) (quotations omitted); Layne & Bowler Corp.

v. West. Well Works, Inc., 261 U.S. 387, 393 (1923) (“[I]t is very important that we be

consistent in not granting the writ of certiorari except in cases involving principles

the settlement of which is of importance to the public, as distinguished from that of

the parties, and in cases where there is a real and embarrassing conflict of opinion

and authority between the Circuit Courts of Appeals.”). And to the extent McGill

raises a novel or unsettled issue, his case is a poor vehicle to resolve it.

6

STATEMENT OF THE CASE

McGill was convicted of first-degree murder and sentenced to death by a jury

after he poured gasoline on Charles Perez and Nova Banta and lit them on fire,

resulting in third-degree burns to over seventy-five percent of both victims’ bodies.

Pet. App. 7a. Perez died the next day in the hospital and Banta survived. Id. McGill

committed his horrific crimes in the 38-day interim between this Court’s decision in

Ring v. Arizona (Ring I), 536 U.S. 584 (2001)—holding that a jury must find the

aggravating factors making a defendant eligible for the death penalty—and the

ensuing revision of Arizona’s capital sentencing statute to provide for jury

sentencing in capital cases. McGill argued that because there was no Ringcompliant method to impose the death penalty at the time he murdered Perez, the

application of the revised statute to him violated the Ex Post Facto Clause.

On direct appeal, the Arizona Supreme Court rejected McGill’s Ex Post Facto

challenge based on its earlier decision in State v. Ring (Ring II), 65 P.3d 915, 928

(Ariz. 2003). In Ring II, the state court looked to this Court’s decisions in Dobbert v.

Florida, 432 U.S. 282 (1977), and Collins v. Youngblood, 497 U.S. 37 (1990), and

concluded that application of Arizona’s capital sentencing statute, A.R.S. § 13–703

and § 13–703.01 (2002), did not violate the Ex Post Facto Clause. Ring II, 65 P.3d at

926–28, ¶¶ 15–24. The Arizona Supreme Court noted that this Court’s decisions

“clearly indicate not only that ex post facto principles generally do not bar applying

procedural changes to criminal proceedings, but also that the general framework of

a state’s statutory capital sentencing scheme is procedural in nature.” Id. at 928,

7

¶ 23. Based on these principles, the court held that “Arizona’s change in the

statutory method [i.e., a jury instead of a judge] for imposing capital punishment is

clearly procedural” because it “alter[s] the method used to determine whether the

death penalty will be imposed but make[s] no changes to the punishment attached

to first degree murder.” Id. As a result, applying the new statutes to offenses

committed before their enactment did not violate the Ex Post Facto Clause. Id. at

928, ¶ 24.

McGill challenged the Arizona Supreme Court’s denial of this claim in his

habeas petition under 28 U.S.C. § 2254(d). Both the district court and the Ninth

Circuit Court of Appeals denied habeas relief. Applying § 2254(d), the court of

appeals denied relief, concluding “that the Arizona Supreme Court [in Ring II]

reasonably applied clearly established federal law when it determined 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.

8

SUMMARY OF ARGUMENT

McGill has presented no compelling reason for this Court’s review because

this Court’s decision in Dobbert, 432 U.S. 282, held that a procedural change in how

the death penalty is implemented does not violate the Ex Post Facto Clause.

Moreover, contrary to McGill’s assertion, this Court has not overruled Dobbert with

its later decisions clarifying that a procedural change could violate the Ex Post

Facto Clause if it involves a substantial right. Applying the highly deferential

standard from the Anti-Terrorism and Effective Death Penalty Act (AEPDA), the

Ninth Circuit Court of Appeals correctly concluded that the Arizona courts did not

unreasonably apply this Court’s clearly established precedent when holding that

McGill’s death sentence did not violate the Ex Post Facto Clause.

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REASONS FOR DENYING THE PETITION

I.

THE ARIZONA SUPREME COURT REASONABLY APPLIED THIS

COURT’S PRCEDENT TO CONCLUDE THAT MCGILL’S DEATH

SENTENCE DOES NOT VIOLATE THE EX POST FACTO CLAUSE.

A.

AEDPA Standard.

McGill’s petition for certiorari originates from the Ninth Circuit Court of

Appeals’ decision affirming the district court’s denial of his petition for writ of

habeas corpus and therefore, this Court owes the state court’s determinations

deference. Because McGill filed his habeas petition in 2013, AEDPA governs.

Woodford v. Garceau, 538 U.S. 202, 204 (2003); Lindh v. Murphy, 521 U.S. 320, 336

(1997).

Under AEDPA, a federal court “must defer to the state court’s resolution of

federal claims,” Delgadillo v. Woodford, 527 F.3d 919, 924 (9th Cir. 2008) (citing

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). It may not grant habeas

relief unless the state-court adjudication decision was either (1) “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

See also Wood v. Allen, 558 U.S. 290, 293 (2010). A reviewing federal court must

also presume that a state court’s factual findings are correct, and McGill has the

burden of rebutting this presumption. 28 U.S.C. § 2254(e)(1).

In evaluating whether a state court decision was contrary to, or involved an

unreasonable application of, federal law, or involved an unreasonable factual

10

determination, the federal courts review the last reasoned state court decision

addressing the claim. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The phrase

“clearly established Federal law,” as set forth in 28 U.S.C. § 2254(d)(1), “refers to

the holdings, as opposed to the dicta of this Court’s decisions as of the time of the

relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)). “For purposes of § 2254(d)(1), an

unreasonable application of federal law is different from an incorrect application of

federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotations omitted;

emphasis in original); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v.

Cone, 535 U.S. 685, 694 (2002) (unreasonable application distinct from incorrect

one).

Finally, “[a] state court’s determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could disagree on the correctness

of the state court’s decision.” Richter, 562 U.S. at 101 (quotations omitted). “[E]ven a

strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Id. at 102. Rather, a prisoner “must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Id. at 103.

“The role of federal habeas proceedings, while important in assuring that

constitutional rights are observed, is secondary and limited.” Brecht v. Abrahamson,

507 U.S. 619, 633 (1993). As such, habeas petitioners are not entitled to relief

11

“unless they can establish that it resulted in actual prejudice.” Id. at 637.

B.

Application of AEDPA to McGill’s claim.

McGill fails to show that the Ninth Circuit incorrectly concluded that the

Arizona Supreme Court reasonably applied this Court’s precedent to his case.

Although he claims that this Court has rejected the “substance-procedure

distinction” (Pet. at 7), he misses the true distinction. A procedural change that

alters a substantive right violates the Ex Post Facto Clause. However, if the

procedural change does not alter a substantive right then there is no Ex Post Facto

violation. That is the case here, where the revision to Arizona’s sentencing statutes

that required a jury instead of a judge to determine the existence of capital

aggravating factors is a procedural change that does not alter any underlying

substantive right to a fair determination of eligibility for the death penalty.

1.

Clearly established federal law.

Article I of the United States Constitution prohibits Congress and the states

from enacting Ex Post Facto laws. U.S. Const. Art. I, § 10, cl. 10. To be Ex Post

Facto, a criminal law 1) must be “retrospective,” meaning that it applies “to events

occurring before its enactment,” 2) “must disadvantage the offender affected by it,”

and 3) must alter “substantial personal rights” and not merely change “modes of

procedure which do not affect matters of substance.” Miller v. Florida, 482 U.S. 423,

430 (1987) (quotations omitted); see also Youngblood, 497 U.S. at 43 (Ex Post Facto

Clause prohibits legislatures from “retroactively alter[ing] the definitions of crimes

or increas[ing] the punishment for criminal acts.”).

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“A law is retrospective if it ‘changes the legal consequences of acts completed

before its effective date.’” Miller, 482 U.S. at 430 (quoting Weaver v. Graham, 450

U.S. 24, 31 (1981)). Thus, in Peugh v. United States, 569 U.S. 530 (2013), for

example, this Court held that the Ex Post Facto Clause prevents a court from

applying an amended version of a sentencing guideline that was not yet in effect

when the defendant committed the crime, if doing so would “create[] a sufficient or

significant risk of increasing the punishment for a given crime.” Peugh, 569 U.S. at

541, n.4 (quotation marks omitted). But in Dobbert, this Court held that a

procedural change to the roles of the jury and judge in capital sentencing did not

violate the Ex Post Facto Clause because it did not add to the “quantum of

punishment.” 432 U.S. at 293–94.

C.

The Arizona Supreme Court reasonably concluded that

application of Arizona’s revised death penalty statute to

McGill’s case does not violate the federal constitutional

prohibition against Ex Post Facto.

On June 24, 2002, this Court found Arizona’s capital sentencing scheme

unconstitutional because judges—not juries—determined the aggravating factors

that determined whether a defendant was eligible for a death sentence. Ring I, 536

U.S. at 609. Arizona amended its death penalty statute on August 1, 2002, to

comply with Ring I. 2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch. 1 (S.B. 1001). On July

13, 2002, McGill murdered Perez. He argues that for thirty-eight days in 2002,

Arizona had no death-penalty statute in effect, including the date that he

committed murder. Pet. At 3. McGill conflates the potential punishment a

13

defendant was eligible to receive with the procedural implementation of the

greatest possible punishment.

In claiming that imposing the death penalty subjected McGill to an increased

punishment that was not available at the time of the crime, McGill ignores both this

Court’s law and the Arizona statute that specified the possible punishments for first

degree murder. At the time of McGill’s crimes, A.R.S. § 13–1105 stated, “First

degree murder is a class 1 felony and is punishable by death or life imprisonment as

provided by §§ 13–703 and 13–703.01.” (Emphasis added.) “[E]ven if a law operates

to the defendant's detriment, the ex post facto prohibition does not restrict

‘legislative control of remedies and modes of procedure which do not affect matters

of substance.’” Miller, 482 U.S. at 433, (quoting Dobbert, 432 U.S. at 293).

In Ring I, this Court concluded that the procedure by which Arizona

determined whether the death penalty could be imposed violated the Sixth

Amendment. 536 U.S. at 609. See also Schriro v. Summerlin, 542 U.S. 348 (2004)

(finding decision in Ring I was properly classified as procedural, rather than

substantive). The death penalty, however, remained in place as a potential sentence

for first degree murder in Arizona both before and after Ring I. See 2002 Ariz. Legis.

Serv. 5th Sp. Sess. Ch. 1 (S.B. 1001) (providing that trier of fact from guilt-phase

shall determine existence of aggravating circumstances; no change to provision that

“[a] person guilty of first degree murder as defined in section 13–1105 shall suffer

death” or life imprisonment “as determined and in accordance with the procedures

provided” in the statute). McGill ignores this section of the relevant Arizona

14

statutes, focusing only on the portion of the statute that governs the finder of fact

for aggravating factors and penalty. The fact that the procedural sentencing statute

had been declared unconstitutional in Ring I does not support McGill’s Ex Post

Facto claim.

Because this Court’s decision Ring I did not remove the death penalty as a

possible sentence for first-degree murder in Arizona, the ensuing amendment to

Arizona’s sentencing statute for jury determination of capital aggravating

circumstances, rather than a judge, was not an impermissible Ex Post Facto law

because it did not “change[] the legal consequences of acts completed before its

effective date.” Miller, 482 U.S. at 430. The death penalty was a potential sentence

for first-degree murder before Ring I, after Ring I, and after the Arizona Legislature

amended the statute to comply with this Court’s decision. See also Youngblood, 497

U.S. at 51–52; Miller, 482 U.S. at 430; Dobbert, 432 U.S. at 284; Summerlin, 542

U.S.at 353–54 (for purposes of retroactive application, Ring I’s holding “is properly

classified as procedural,” not substantive). Moreover, the newly-enacted statute did

not “retroactively alter the definitions of crimes or increase the punishment for

criminal acts.” Youngblood, 497 U.S. at 43.

McGill and the dissenting judge below argue that if the Legislature had not

changed the law, then the death penalty would not have been an option for him. But

that is true for all of the capital defendants who were resentenced by juries

following Ring I because their cases were not yet final on direct appeal. Moreover,

that there was briefly a lack of a mechanism for implementation does not address

15

the primary issue underlying the Ex Post Facto law prohibition, which is notice of

potential punishment, not the method of its application through eligibility

determination. One cannot ignore A.R.S. § 13–1105, which the dissenting Ninth

Circuit judge and McGill continue to do.

Additionally, McGill claims that State v. Sizemore, Navajo County Case No.

CR 2001-0338, is dispositive here, but McGill misunderstands the facts of that case.

To begin, McGill contends that Sizemore “invoked [his] right to immediate

sentencing.” Pet. at 5. However, Sizemore did not invoke a “right to immediate

sentencing” because Arizona had no such right. See AZ Crim. Pro. R. 26.3 (2002).

(“Upon a determination of guilt, the court shall set a date for sentencing. Sentence

shall be pronounced not less than 15 nor more than 30 days after the determination

of guilt unless the court, after advising the defendant of his or her right to a presentence report, grants his or her request that sentence be pronounced earlier.”)

Furthermore, Sizemore did not request to be sentenced immediately. See Resp. App.

at A-12–A-16.

While Sizemore pleaded guilty to the charge—without the benefit of a plea

agreement—due to a misunderstanding that Ring I deemed Arizona’s capital

sentencing unconstitutional. The State later moved to permit Sizemore to withdraw

from the plea because he remained eligible for the death penalty. However, because

at the change of plea hearing, the State did not correct the trial court and clarify

that the death penalty remained a potential sentence for Sizemore, the court

16

determined that the State had waived its right to seek the death penalty against

Sizemore. See Resp. App. at A-3–A-79. The court’s language is particularly relevant:

The question before the Court is what was the appropriate

sentencing range for the crime of first degree murder on July 2, 2002

after Ring, and before the enactment of the revisions to A.R.S. 13-703.

The defendant's [sic] have also raised the issue of the states [sic]

conduct at the change of plea proceeding and that by agreeing that

death would not apply to the defendants the State effectively withdrew

or waived its right to seek the death penalty. It is clear to the Court

that Ring did not hold that the death penalty in Arizona was not a

viable sentence option. It declared the process by which the penalty

was determined unconstitutional and therefore required the State to

amend the statute. It is clear to the Court that the range of sentence for

the Defendant's on July 24 2002 did include the possibility of a death

sentence.

Resp. App. at A-78 (emphasis added).

Finally, McGill fails to identify any substantive right that changed. The

potential punishments did not change. The aggravating factors remained the same.

The eligible offenses remained the same. Only the method to impose the sentence

changed. Dobbert addressed a procedural change that occurred after Dobbert

committed the crime but before he was sentenced, and McGill committed his

murder shortly after the procedural mechanism to implement the death penalty

was declared unconstitutional but before a new procedural method was enacted.

Nevertheless, the analysis is the same. The procedural change that allowed a jury,

rather than a judge, to determine death-eligible aggravating factors did not violate

17

the Ex Post Facto Clause. 1 The Ninth Circuit correctly concluded that the Arizona

0F

Supreme Court’s rejection of this claim was not contrary to, or an unreasonable

application of, clearly established federal law.

D.

McGill’s reliance on other case law is inapposite.

McGill insists that this Court has abolished its “substance-procedure

distinction.” Pet. at 7. McGill misstates the explanation in Carmell v. Texas, 529

U.S. 513 (2000), of Youngblood’s overruling of Kring v. Missouri, 107 U.S. 221

(1883), and Thompson v. Utah, 170 U.S. 343 (1898). See Pet. At 8. McGill states that

this Court held that prior to Youngblood, the Ex Post Facto doctrine was not

violated if the new law was only procedural in nature, regardless of whether it

involved substantial rights. However, Youngblood held that procedural rules that

affected substantial rights may violate the Ex Post Facto Clause. Youngblood, 497

U.S. at 46. McGill fails to identify any substantial right that the newly-enacted law

affected. The substantial right to a fair determination of eligibility for the death

penalty by way of a finding of the existence of at least one statutory capital

aggravating factor was unaffected by the change in the statute from judge to jury as

the designated fact-finder.

Further, McGill relies on three cases that mention the Ex Post Facto Clause,

but only one actually addresses the federal Ex Post Facto Clause. Pet. at 14–15. The

_______________

1 Moreover, if Dobbert is not the applicable clearly established federal law, then there is no clearly

established federal law, and McGill is still not entitled to relief. 28 U.S.C. § 2254(d)(1), (2).

18

Ninth Circuit specifically decided Coleman v. McCormick, 874 F.2d 1280, 1286, fn 7

(1989), on due process grounds, not the Ex Post Facto Clause. And, People v.

Aguayo, 840 P.2d 336 (Colo. 1992), was decided on state law grounds. Finally, Blue

v. State, 303 So.3d 714 (Miss. 2020), is inapplicable because it was a clear violation

of the Ex Post Facto Clause, for the penalty—life in prison without parole—was not

a potential sentence at the time of the defendant’s crime. In contrast, Arizona law

specified that the potential sentences for murder were life in prison or death;

therefore, McGill had notice that he could be sentenced to death. Most importantly,

none of these cases is controlling Supreme Court case law, so none affects the

reasonableness of the Arizona Supreme Court’s decision. See 28 U.S.C. § 2254(d)(2).

CONCLUSION

The Ninth Circuit correctly determined that the Arizona Supreme Court

reasonably applied this Court’s applicable controlling case law in dismissing his

claim regarding the Ex Post Facto Clause. The petition for a writ of certiorari

should be denied.

Respectfully submitted,

MARK BRNOVICH

Attorney General

of Arizona

ERIN D. BENNETT

Assistant Attorney General

(Counsel of Record)

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

Office of the Arizona

Attorney General

Capital Litigation Section

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-4686

CLDOCKET@AZAG.GOV

JEFFREY SPARKS

Deputy Solicitor General/

Section Chief of Capital

Litigation

Counsel for Respondents

19