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

Corrected Copy

CAPITAL CASE

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

_____________

PETITIONER’S REPLY BRIEF

_____________

XIAO WANG

MEREDITH R. ASKA

MCBRIDE

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

JON M. SANDS

JENNIFER Y. GARCIA

FEDERAL PUBLIC

DEFENDER’S OFFICE

850 W. Adams St., Ste. 201

Phoenix, AZ 85007

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

STEPHEN TANG

SIDLEY AUSTIN LLP

555 California St.,

Ste. 2000

San Francisco, CA 94104

Counsel for Petitioner

October 25, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

REPLY...................................................................

1

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

11

(i)

ii

TABLE OF AUTHORITIES

CASES

Page

Barton v. S.C. Dep't of Prob. Parole &

Pardon Servs.,

745 S.E.2d 110 (S.C. 2013) .......................

9

Blake v. Ndoh,

No. 3:19-cv-06227-WHO, 2022 U.S. Dist.

LEXIS 162234 (N.D. Cal. Sep. 8, 2022)....

10

Blue v. State,

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

7

Cal. Dep’t of Corr. v. Morales,

514 U.S. 499 (1995) ........................... 1, 2, 3, 5, 6

Carmell v. Texas,

529 U.S. 513 (2000) ................................... 3, 4

Coleman v. McCormick,

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

7

Collins v. Youngblood,

497 U.S. 37 (1990) ..................................... 2, 3

Dobbert v. Florida,

432 U.S. 282 (1977) ................................... 2, 6

Evans v. Gerry,

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

9

Ford v. Wainwright,

477 U.S. 399 (1986) ...................................

10

Garner v. Jones,

529 U.S. 244 (2000) ............................... 1, 3, 5, 6

Holmes v. Christie,

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

8

McGuire v. Marshall,

No. 15-10958, 2022 U.S. App. LEXIS

27632 (11th Cir. Oct. 3, 2022)...................

9

Miller v. Florida,

482 U.S. 423 (1987) abrogated in part by

Peugh v. United States, 569 U.S. 530

(2013) .........................................................

2

iii

TABLE OF AUTHORITIES—continued

Page

Peterson v. Gunderson,

No. 48781, 2022 Ida. App. LEXIS 13

(Ida. Ct. App. July 8, 2022) .......................

10

Peugh v. United States,

569 U.S. 530 (2013) ................................... 1, 2, 4

Ring v. Arizona (Ring I),

536 U.S. 584 (2002) ................................... 5, 10

Ruhlman v. Brunsman,

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

9

State v. Peralta,

No. DA 21-0029, 2022 WL 10323645

(Mont. Oct. 18, 2022).................................

10

State v. Sizemore,

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

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

6

United States v. Farrow,

277 F.3d 1260 (10th Cir. 2002) .................

9

United States v. McGee,

60 F.3d 1266 (7th Cir. 1995) .....................

8

United States v. Norwood,

49 F.4th 189 (3d Cir. 2022) ......................

8

United States v. Ortiz,

621 F.3d 82 (2d Cir. 2010) ........................

9

United States v. Turner,

548 F.3d 1094 (D.C. Cir. 2008) .................

8

United States v. Welch,

689 F.3d 529 (6th Cir. 2012) .....................

10

Williams v. Hobbs,

658 F.3d 842 (8th Cir. 2011) .....................

8

Woodson v. North Carolina,

428 U.S. 280 (1976) ...................................

10

Wool v. Pallito,

193 A.3d 510 (Vt. 2018).............................

9

iv

TABLE OF AUTHORITIES—continued

Page

STATUTES

Ariz. Rev. Stat. § 13-703 (2001) ................... 5, 7

Ariz. Rev. Stat. § 13-1105 (2001) ............. 5, 6, 7

OTHER AUTHORITIES

Daniel Suleiman, The Capital Punishment

Exception: A Case for Constitutionalizing

the Substantive Criminal Law, 104

Colum. L. Rev. 426 (2004).........................

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

Thomas

O.

Main, The

Procedural

Foundation of Substantive Law, 87 Wash.

U. L. Rev. 801 (2010) ................................

4

1

4

REPLY

Respondents consistently have acknowledged that

on the day Mr. McGill committed his crime, he could

not have been sentenced to death. And this Court’s recent decisions make clear that a state violates the Ex

Post Facto Clause when retroactive changes create

“sufficient risk” of increased punishment. Cal. Dep’t of

Corr. v. Morales, 514 U.S. 499, 509 (1995); Garner v.

Jones, 529 U.S. 244, 250–51 (2000). 1 The change from

death being unavailable to being possible is such a

risk, yet both the Ninth Circuit and Arizona Supreme

Court have rejected Mr. McGill’s Ex Post Facto claim.

Mr. McGill’s petition presents an important question

that addresses the continued viability of the substance-procedure distinction under the Ex Post Facto

Clause. That is a sufficient basis for the Court to grant

review, especially in the context of a capital case such

as this. See Sup. Ct. R. 10(c).

Respondents present an Ex Post Facto jurisprudence

frozen in time. Relying upon decisions from 1990 or

earlier, they advance the argument that this Court analyzes Ex Post Facto claims under the substance-procedure distinction. More modern decisions, however,

establish that this Court has long since moved past re-

1 Morales describes the Ex Post Facto Clause as requiring “sufficient risk” while Garner refers primarily to “significant risk.”

However, Garner’s heavy reliance on Morales makes clear that

“significant risk” and “sufficient risk” refer to the same test. Garner, 529 U.S. at 251; see also Peugh v. United States, 569 U.S. 530,

541 n.5 (2013) (“The relevant question is whether the change in

law creates a ‘sufficient’ or ‘significant’ risk of increasing the punishment for a given crime.” (quoting Garner, 529 U.S. at 250–51))

(internal quotation marks omitted).

2

spondents’ proffered test to instead ask whether a retroactive application of law poses a “sufficient risk” of

increased punishment. See Morales, 514 U.S. at 509.

So too do respondents fail to grapple with the significance of Mr. McGill’s case. They claim that review

would do little more than resolve unique factual circumstances, but they ignore the circuit split below and

the weight of Mr. McGill’s death sentence.

1. Respondents claim that the substance-procedure distinction is clearly established law under Collins v. Youngblood, 497 U.S. 37 (1990), and Dobbert v.

Florida, 432 U.S. 282 (1977). But in so doing, they commit the same error as the Ninth Circuit and Arizona

Supreme Court: they disregard the line of this Court’s

subsequent decisions clearly establishing that “[t]he

touchstone of the [Ex Post Facto] inquiry is whether a

given change in law presents a ‘sufficient risk of increasing the measure of punishment attached to the

covered crimes.’”Peugh, 569 U.S. at 539 (quoting Garner, 529 U.S. at 250; Morales, 514 U.S. at 509). Respondents only briefly acknowledge the “sufficient

risk” test and make no effort to reconcile it with their

proposed substance-procedure distinction. Resp. Br.

13. Instead, they inexplicably argue that “if Dobbert is

not the applicable clearly established federal law, then

there is no clearly established federal law,” id. at 18

n.1, even though Mr. McGill has canvassed the postDobbert cases establishing the “sufficient risk” test in

his petition. Pet. 7–9.

There is a direct line of cases from Dobbert to Peugh

detailing how this Court’s Ex Post Facto jurisprudence

has evolved away from the substance-procedure distinction. Ten years after Dobbert, this Court began

that evolution by acknowledging procedural changes

to criminal laws could still implicate the Ex Post Facto

Clause. See Miller v. Florida, 482 U.S. 423, 433 (1987),

3

abrogated in part by Peugh, 569 U.S. at 541 n.4; Collins, 497 U.S. at 46. To be sure, Collins still required a

procedural change to affect substantial rights for it to

violate the Ex Post Facto Clause. Resp. Br. 18 (citing

Collins, 497 U.S. at 46). But while respondents’ view

of clearly established law stops there, this Court’s jurisprudence did not.

Following Collins, the next steps in the Ex Post

Facto Clause’s evolution came in Morales and Garner,

see Pet. 8–10, both of which respondents ignore entirely. Morales and Garner each involved challenges to

changes in the frequency of parole hearings, changes

that are obviously procedural and far less substantive

than Mr. McGill’s right to a jury. Morales, 514 U.S. at

503; Garner, 529 U.S. at 247. Indeed, the Morales

court explained that “the [challenged] amendment

simply ‘alters the method to be followed’ in fixing a parole release date under identical substantive standards. 514 U.S. at 508 (quoting Miller, 482 U.S. at 433).

Yet neither Morales nor Garner ruled against the challengers on the basis that the changed laws were procedural. Rather, they asked whether the change created

a “sufficient risk” of increasing punishment. Morales,

514 U.S. at 509; Garner, 529 U.S. at 250–51. Under

this test, there is no distinction between substantive

changes and procedural changes—either may create a

risk of increased punishment.

In case the shift in jurisprudence was not clear, this

Court subsequently and explicitly rejected the notion

that the Ex Post Facto Clause applies only to “substantial protections.” 2 Carmell v. Texas, 529 U.S. 513, 519

2 The Court had good reason to abandon the substance-procedure distinction. As it observed in Miller, “the distinction between

substance and procedure might sometimes prove elusive.” 482

4

(2000). Although respondents make the conclusory assertion that Mr. McGill “misstates the explanation in

Carmell,” Resp. Br. 18, the Court unambiguously held

there that it was “eliminat[ing] 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.’” Carmell, 529 U.S. at 539. To

the extent that respondents interpret Collins to establish the rule that procedural changes violate the Ex

Post Facto Clause only if they affect substantial rights,

that view conflicts with the Court’s square holding in

Carmell. See also Peugh, 569 U.S. at 539 (synthesizing

the Court’s Ex Post Facto jurisprudence and holding

that the proper test is whether a changed law creates

“sufficient risk of increasing the measure of punishment” (internal quotations omitted)).

When the Arizona Supreme Court decided Mr.

McGill’s appeal, Morales, Garner, and Carmell were

all established law. Pet. App. 137a–188a (decided in

2006). Yet it relied only on Dobbert and Collins, overlooking the shift in Ex Post Facto law in the decades

since those two decisions. Pet. App. 172a (citing State

v. Ring (Ring II), 65 P.3d 915, 928 (Ariz. 2003)). As

such, the Arizona Supreme Court failed to follow

clearly established law.

U.S. at 433. Indeed, “[s]ubstantive law relies on procedure to effectuate the substantive mandate.” Thomas O. Main, The Procedural Foundation of Substantive Law, 87 Wash. U. L. Rev. 801,

822 (2010). And for capital cases in particular, “the line between

substance and procedure in death penalty jurisprudence is often

very fine.” Daniel Suleiman, The Capital Punishment Exception:

A Case for Constitutionalizing the Substantive Criminal Law, 104

Colum. L. Rev. 426, 440 n.99 (2004).

5

2. Respondents take a shotgun approach when arguing that the Arizona Supreme Court reasonably applied clearly established law. Each argument fails.

First, respondents argue that, because the Arizona

death penalty statute is bifurcated into one section

that specifies possible punishments (Ariz. Rev. Stat. §

13-1105 (2001)) and one that lays out the procedures

for the death penalty (Ariz. Rev. Stat. § 13-703 (2001)),

death remained a possible punishment even after this

Court declared § 13-703 to be unconstitutional in Ring

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

As an initial matter, the two statutory provisions are

not as separate as respondents imply. Section 13-1105

expressly incorporates the procedural provision: “First

degree murder . . . is punishable by death or life imprisonment as provided by § 13-703.” Ariz. Rev. Stat.

§ 13-1105 (2001) (emphasis added). And even if the

two provisions were fully independent, the fact that

§ 13-1105 remained undisturbed following Ring I is

not dispositive. Instead, the question is whether the

change in law created a “sufficient risk” of increasing

Mr. McGill’s punishment. Morales, 514 U.S. at 509;

Garner, 529 U.S. at 250–51.

Respondents suggest there was little change in risk

because Ring I merely altered the procedure for determining death from relying on judges to relying on juries. Resp. Br. 12. That was not the case for Mr.

McGill. Rather, the relevant change for him was that

Arizona went from having no valid procedure at all for

determining death to having such a procedure. As

noted at the outset, respondents have repeatedly conceded that death “would not have been an option” for

Mr. McGill had the legislature not enacted a constitutional version of § 13-703. Resp. Br. 15; see also Pet.

App. 80a n.1 (“The State conceded multiple times during oral argument that if the Arizona legislature had

6

never re-enacted § 13-703, McGill could not have been

sentenced to death.”); cf. State v. Sizemore, S-0900-CR20010338 (Ariz. Super. Ct. Navajo County July 24,

2022). 3

Given the admission that death was not available,

Arizona’s revision of its capital sentencing procedure

created a more than sufficient risk that Mr. McGill’s

measure of punishment would increase. Indeed, that

risk was absolute: Because there was no valid procedure whatsoever for imposing the death penalty amid

the thirty-eight-day period during which Mr. McGill

committed his crime, Arizona’s revision increased Mr.

McGill’s chances of receiving the death penalty from

“no possibility . . . to possibility.” Pet. App. 82a. The

amended statute thus increased the “quantum of punishment” significantly, from nothing to the death penalty, see Dobbert, 432 U.S. at 293–94, thereby creating

a “sufficient risk” that Mr. McGill would face a capital

sentence. Morales, 514 U.S. at 509; Garner, 529 U.S.

at 250–51.

Second, respondents contend that § 13-1105 provided adequate notice that death was a potential punishment. The opposite is true.

Again, the text of § 13-1105 expressly references the

procedural provision that this Court had invalidated

in Ring I, stating that capital punishment is available

only “as provided by § 13-703.” Ariz. Rev. Stat. § 133 Respondents devote a page and a half of their brief to discussing how State v. Sizemore is not “dispositive.” Resp. Br. at 16–17.

Mr. McGill has not argued Sizemore “disposes” of respondents’

arguments. The defendant in that case was charged before Ring

I and sentenced after—putting him in company with the Ring II

defendants, rather than Mr. McGill. Sizemore, S-0900-CR20010338. The point is that even the State, in Sizemore, believed

death would be an unconstitutional sentence for the defendant

until they found a way to walk that back. Id.

7

1105 (2001). Clearly, the plain text of § 13-1105 provides for a death sentence conditioned on meeting the

procedural requirements of § 13-703. Respondents’

concession “that there was briefly a lack of a mechanism for implementation,” Resp. Br. at 15, is thus also

a concession that Mr. McGill did not have notice. Viewing § 13-1105 on the day he committed his crime, a

would-be offender would have been on notice that he

could not receive the death penalty should he commit

first-degree murder. 4 Pet. App. 81a.

Third, respondents claim that none of Mr. McGill’s

substantive rights changed when the Arizona legislature enacted the amended version of § 13-703 because

such change might be “classified as procedural.” Resp.

Br. 15 (quoting Schriro v. Summerlin, 542 U.S. 348,

353–54 (2004)).

That is beside the point. The proper test for determining if retroactive application of the amended version of § 13-703 is Ex Post Facto is whether doing so

creates a “sufficient risk” of increased punishment. It

does pose such a risk.

3. Respondents consistently misconstrue the scope

and significance of Mr. McGill’s petition. Despite asserting that Mr. McGill “has not established that the

Ninth Circuit Court of Appeals’ decision conflicts with

4 A defendant is “given no notice whatsoever” if sentenced to

death under a newly enacted statute. Coleman v. McCormick, 874

F.2d 1280, 1288 (9th Cir. 1989) (en banc). Although respondents

argue Coleman was “decided . . . on due process grounds, not the

Ex Post Facto Clause,” Resp. Br. at 19, Coleman still stands for

the proposition that Mr. McGill was not on notice. And Blue v.

State, 303 So.3d 714 (Miss. 2020), supports Mr. McGill’s position

because the penalty there—life in prison without parole—was not

an available sentence at the time of the defendant’s crime, just as

death was not possible when Mr. McGill committed his crime.

8

a decision” from another circuit, Resp. Br. 6, respondents fail to reconcile the Ninth Circuit’s approach to

the Ex Post Facto Clause with those of the other circuits highlighted in Mr. McGill’s petition. Pet. 10. (discussing how other circuits’ approaches to the Ex Post

Facto Clause differ from the Ninth Circuit’s).

For example, the Third Circuit held in Holmes v.

Christie that “[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.”

14 F.4th 250, 264 (3d Cir. 2021). And it recently doubled down in United States v. Norwood, explaining

that “both we and the Supreme Court have refused 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.”

49 F.4th 189, 218 (3d Cir. 2022) (cleaned up) (quoting

Holmes, 14 F.4th at 265). Instead, courts “look to

whether the rule has the practical effect of increasing

a defendant's punishment.” Id.

Other circuits, consistent with this Court’s direction,

have likewise applied a risk-based test. See, e.g.,

United States v. McGee, 60 F.3d 1266, 1271 (7th Cir.

1995) (holding that “a court ‘must determine whether

[the legislative change] produces a sufficient risk of increasing the measure of punishment attached to the

covered crimes’” (quoting Morales, 512 U.S. at 509))

(alteration in original); Williams v. Hobbs, 658 F.3d

842, 851 (8th Cir. 2011) (holding that a prisoner had

“not pled facts showing the ‘significant risk’ of increased punishment necessary to make out an Ex Post

Facto violation.” (citing Garner, 529 U.S. at 255));

United States v. Turner, 548 F.3d 1094, 1100 (D.C. Cir.

2008) (“It is enough that using the 2006 Guidelines

created a substantial risk that Turner's sentence was

9

more severe, thus resulting in a violation of the Ex

Post Facto Clause.” (citation omitted)); United States

v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010) (“We think the

‘substantial risk’ standard adopted by the D.C. Circuit

appropriately implements the Ex Post Facto Clause in

the context of sentencing under the advisory Guidelines regime, and is faithful to Supreme Court jurisprudence explaining that the Clause protects.”); Evans

v. Gerry, 647 F.3d 30, 33–34 (1st Cir. 2011) (holding

that New Hampshire state court reasonably applied

the sufficient risk test to an Ex Post Facto claim); see

also McGuire v. Marshall, No. 15-10958, 2022 U.S.

App. LEXIS 27632 (11th Cir. Oct. 3, 2022) (analyzing

whether a civil scheme can violate the Ex Post Facto

Clause by looking to the risk of punishment). 5

The Ninth Circuit’s reliance on a formal substanceprocedure distinction is plainly incompatible with the

functional approaches of this Court and the circuits

above. Pet. App. 60a–74a. The Tenth and Sixth Circuits join the Ninth Circuit in refusing to fully relinquish the obsolete substance-procedure test. See

United States v. Farrow, 277 F.3d 1260, 1264 n.5 (10th

Cir. 2002) (holding that an Ex Post Facto violation occurs when a change in law affects “substantial personal rights” but not when a change affects only

“modes of procedure” (quoting Miller, 482 U.S. at

430)); Ruhlman v. Brunsman, 664 F.3d 615, 620 (6th

Cir. 2011) (“[T]he Ex Post Facto clause does not apply

to procedural changes.” (citation omitted)); but see

5 Several state supreme courts have also followed this Court’s

direction. See, e.g., Barton v. S.C. Dep't of Prob. Parole & Pardon

Servs., 745 S.E.2d 110, 114 (S.C. 2013) (“The relevant inquiry regarding an increase in punishment is whether a legislative

amendment produces a sufficient risk of increasing the

measure of punishment attached to the covered crimes.” (cleaned

up)); Wool v. Pallito, 193 A.3d 510, 512 (Vt. 2018) (holding the

same).

10

United States v. Welch, 689 F.3d 529, 533 (6th Cir.

2012).

Moreover, even if Mr. McGill’s circumstances are uncommon, Ex Post Facto claims themselves are quite

common. Since Mr. McGill’s petition was filed on July

8, 2022, counsel have identified 217 federal and state

court decisions which have analyzed Ex Post Facto

claims. E.g., State v. Peralta, No. DA 21-0029, 2022

WL 10323645 (Mont. Oct. 18, 2022) (unpublished tentative decision); Blake v. Ndoh, No. 3:19-cv-06227WHO, 2022 U.S. Dist. LEXIS 162234 (N.D. Cal. Sept.

8, 2022); Peterson v. Gunderson, No. 48781, 2022 Ida.

App. LEXIS 13 (Ida. Ct. App. July 8, 2022). Given the

prevalence of such claims, this petition poses an opportunity for the Court to clarify a rule affecting hundreds

of cases each year.

Finally, central to this Court’s jurisprudence is the

tenet that “[d]eath is different.” See Ring I, 536 U.S. at

606 (alteration in original); accord Ford v. Wainwright, 477 U.S. 399, 411 (1986) (“[E]xecution is the

most irremediable and unfathomable of penalties.”).

The death penalty is “a punishment different from all

other sanctions in kind rather than degree,” and thus

“differs more from life imprisonment than a 100-year

prison term differs from one of only a year or two.”

Woodson v. North Carolina, 428 U.S. 280, 303–05

(1976). It is therefore especially important for the

Court to review capital cases such as Mr. McGill’s.

11

CONCLUSION

For these reasons and the reasons stated in the petition, this Court should grant the petition.

Respectfully submitted,

XIAO WANG

MEREDITH R. ASKA

MCBRIDE

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

STEPHEN TANG

SIDLEY AUSTIN LLP

555 California St.,

Ste. 2000

San Francisco, CA 94104

JON M. SANDS

JENNIFER Y. GARCIA

FEDERAL PUBLIC

DEFENDER’S OFFICE

850 W. Adams St., Ste.

201

Phoenix, AZ 85007

Counsel for Petitioner

October 25, 2022

*Counsel of Record