Opposition Brief — John Edward Sansing, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

No. 22–6396

In the

Supreme Court of the United States

JOHN EDWARD SANSING,

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

Capital Case

KRISTIN K. MAYES

Attorney General

of Arizona

DANIEL C. BARR

Chief Deputy

JEFFREY L. SPARKS

Deputy Solicitor General/

Section Chief of Capital

Litigation

(Counsel of Record)

Office of the Arizona

Attorney General

Capital Litigation Section

2005 N. Central Ave.

Phoenix, AZ 85004

602-542-4686

Cldocket@azag.gov

Counsel for Respondents

QUESTION PRESENTED FOR REVIEW

While this Court has held that the Eighth Amendment prohibits the admission of a

victim’s sentencing recommendation in favor of the death penalty, no clearly

established Federal law holds that a defendant is entitled to present a victim’s

sentencing recommendation in favor of leniency as mitigation in a capital

sentencing proceeding. In this AEDPA case, was the Arizona Supreme Court’s

conclusion that the sentencing judge’s refusal to consider the victim’s daughter’s

recommendation for leniency did not violate Petitioner’s Eighth Amendment rights

“contrary to, or based on an unreasonable application of, clearly established Federal

law” under 28 U.S.C. § 2254(d)(1)?

2

TABLE OF CONTENTS

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

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

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

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

STATEMENT OF THE CASE....................................................................................... 8

A.

Sansing’s murder of Trudy Calabrese and trial. .......................... 8

B.

Appeal. ......................................................................................... 10

C.

Habeas proceedings. .................................................................... 11

REASONS FOR DENYING THE PETITION ............................................................ 14

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

3

TABLE OF AUTHORITIES

Cases

Booth v. Maryland, 482 U.S. 496 (1987) ......................................................... 12, 15–17

Bosse v. Oklahoma, 580 U.S. 1 (2016)......................................................................... 15

Brecht v. Abrahamson, 507 U.S. 619 (1993) .............................................................. 18

Carey v. Musladin, 549 U.S. 70 (2006) ....................................................................... 15

Eddings v. Oklahoma, 455 U.S. 104 (1982) .......................................................... 11, 15

Knowles v. Mirzayance, 556 U.S. 111 (2009) .............................................................. 14

Lockett v. Ohio, 438 U.S. 586 (1978) ............................................................... 11, 15, 17

Lopez v. Smith, 574 U.S. 1 (2014) ............................................................................... 14

Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003) .......................................................... 11, 17

Payne v. Tennessee, 501 U.S. 808 (1991)......................................................... 12, 15, 16

Ring v. Arizona, 536 U.S. 584 (2002) .......................................................................... 10

Robison v. Maynard, 829 F.2d 1501 (10th Cir 1987) .......................................... 16, 17

Romano v. Gibson, 239 F.3d 115 (10th Cir. 2001) ...................................................... 16

Sansing v. Arizona, 536 U.S. 954 (2002) .................................................................... 11

Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009) ............................................................ 18

Skipper v. South Carolina, 476 U.S. 1 (1986) ............................................................. 11

Smith v. Spisak, 558 U.S. 139 (2010) ......................................................................... 15

State v. Sansing, Maricopa County Superior Court No. CR 98–03520(A) ................ 18

State v. Trostle, 951 P.2d 869 (Ariz. 1997) .................................................................. 10

Thaler v. Haynes, 559 U.S. 43 (2010) .................................................................... 14, 16

United States v. Brown, 441 F.3d 1330 (11th Cir. 2006)............................................ 16

White v. Woodall, 572 U.S. 415 (2014) ........................................................................ 14

Woods v. Donald, 575 U.S. 312 (2015) ........................................................................ 14

Wright v. Van Patten, 552 U.S. 120 (2008) ................................................................. 15

Statutes

28 U.S.C. § 2254(d) ...................................................................................................... 16

28 U.S.C. § 2254(d)(1) .................................................................................... 2, 6, 12, 14

A.R.S. § 13–703(D) ....................................................................................................... 10

A.R.S. § 13–703(F)(5) ..................................................................................................... 9

A.R.S. § 13–703(F)(6) ..................................................................................................... 9

A.R.S. § 13–4426(A) ..................................................................................................... 10

4

Rules

Ariz. R. Crim. P 39(b)(7) .............................................................................................. 10

Sup. Ct. R. 10 ............................................................................................................... 14

Constitutional Provisions

Ariz. Const. Art. II, § 2.1(A)(4) ................................................................................... 10

U.S. Const. amend VIII ....................................................................................... passim

U.S. Const. amend XIV ................................................................................................ 11

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INTRODUCTION

Sansing was convicted of first-degree murder, kidnapping, armed

robbery, and sexual assault for brutally murdering Trudy Calabrese, a

church volunteer who was delivering food to Sansing and his family. The trial

court sentenced him to death for the murder. The Arizona Supreme Court

concluded on direct appeal that the sentencing judge did not err by refusing

to consider the victim’s daughter’s sentencing recommendation in favor of

leniency as a mitigating factor, and affirmed Sansing’s death sentence.

On habeas review under AEDPA, the Ninth Circuit held that the State

court’s decision was not contrary to, or based on an unreasonable application

of, this Court’s precedent. In reaching that conclusion, the court noted that

this Court has held that the Eighth Amendment prohibits the State from

introducing the victim’s family’s recommendation that the defendant receive

the death penalty and has never held that a capital defendant is entitled to

have the jury consider the victim’s family’s recommendation for leniency.

Sansing requests certiorari review of that decision, but presents no

compelling reason for this Court’s intervention. The court of appeals’ decision

was a straightforward application of 28 U.S.C. § 2254(d)(1)’s exceedingly high

standard for habeas relief, and did not create any split of authority. To the

contrary, as the court below observed, the other state and federal circuit

courts to have addressed this question have similarly found that a defendant

has no right to have the sentencer consider the victim’s family’s

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recommendation for leniency in a capital sentencing proceeding. As a result,

this Court should deny certiorari.

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STATEMENT OF THE CASE

A.

Sansing’s murder of Trudy Calabrese and trial.

On February 24, 1998, Sansing and his wife, Kara Sansing, “were on the

fourth consecutive day of heavy crack cocaine consumption.” App. 8a. That

afternoon, after the couple used the last of their crack cocaine, Sansing contacted a

church to request a food delivery for his family. Id. Sansing told Kara, in the

presence of their four young children, that he would rob the person who delivered

the food. Id.

Just after 4:00 p.m., Trudy Calabrese parked in front of Sansing’s home to

deliver the food Sansing requested. Id. She entered the house and talked with Kara

while Sansing signed paperwork regarding the delivery. Id. As Trudy turned to

leave, however, Sansing grabbed her and threw her to the floor, where he and Kara

bound Trudy with electrical cords. Id. Trudy fought back, begged Sansing not to

hurt her, and pleaded for the children to call for help. Id. Sansing eventually gagged

her with a sock. Id. at 8a–9a.

Once she was bound and gagged, Sansing hit Trudy twice in the head with a

wooden club, knocking her unconscious. Id. at 9a. He then moved her vehicle to a

nearby parking lot. Id. Once Sansing returned to the house after moving the

vehicle, he dragged Trudy upstairs and raped her, after which he stabbed her three

times in the abdomen with a kitchen knife. Id. As he stabbed her, Sansing ground

or twisted the knife. Id. Trudy died from the stabbing. Id. Sansing took Trudy’s

jewelry and traded it for more crack cocaine. Id.

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When a pastor from the church called Sansing’s home that evening asking

about Trudy’s whereabouts, Sansing gave a false address and told the pastor that

Trudy had never arrived. Id. He later attempted to hide Trudy’s body in his

backyard and hid other evidence of the murder. Id. The next day, however, Trudy’s

truck was located and it contained a note with the Sansings’ address. Id. at 9a–10a.

Police went to the home and found her body; her head was wrapped in a plastic bag

that was bound to her neck and she was blindfolded. Id. at 10a. After going to work

that day, Sansing confessed the murder to his sister. Id.

The State of Arizona charged Sansing with first-degree murder, kidnapping,

armed robbery, and sexual assault. App. 204a. Sansing pled guilty to all four

charges. Id. The case then proceeded to sentencing before the trial judge. App. 10a.

The judge found that the State proved two aggravating circumstances which

made Sansing eligible for the death penalty: Sansing committed the crime in

expectation of pecuniary gain under A.R.S. § 13–703(F)(5) 1; and Sansing committed

0F

the murder in an especially cruel, heinous, or depraved manner under § 13–

703(F)(6). App. 240a. The sentencing judge found that Sansing failed to prove any

statutory mitigating circumstances, but that he proved five non-statutory

mitigating circumstances: (1) impairment from crack cocaine; (2) difficult childhood;

(3) acceptance of responsibility and remorse; (4) lack of education; and (5) family

_______________

1 Unless otherwise specified, Respondents cite the version of the Arizona statutes in

effect at the time of Sansing’s offense and trial.

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support. Id. The judge declined to consider as a mitigating circumstance the request

of Trudy’s 10-year-old daughter that the court not impose the death penalty. App.

223a. Having determined that the mitigating circumstances were not sufficiently

substantial to outweigh the aggravating circumstances, the trial judge sentenced

Sansing to death. App. 240a.

B.

Appeal.

On direct appeal to the Arizona Supreme Court, Sansing argued that, by

failing to consider the victim’s daughter’s sentencing recommendation as a

mitigating circumstance, the sentencing judge violated the victim’s right to be heard

in violation of Article 2, section 2.1(A)(4) of the Arizona Constitution, A.R.S. § 13–

4426(A), and Arizona Rule of Criminal Procedure 39(b)(7). App. at 223a. The court

disagreed, citing its previous decision in State v. Trostle, 951 P.2d 869, 887 (Ariz.

1997), in which it held that the victims’ family’s sentencing requests were

“irrelevant to either the defendant’s character or the circumstances of the crime and

is therefore not proper mitigation,” and A.R.S. § 13–703(D), which forbade the

consideration of “any recommendation made by the victim regarding the sentence to

be imposed.” Id. at 223a–224a. Thus, the sentencing “judge correctly refused to

consider the [victim’s] daughter’s sentencing recommendation when imposing the

sentence.” Id. at 224a.

After the Arizona Supreme Court affirmed Sansing’s death sentence on

appeal, this Court decided Ring v. Arizona, 536 U.S. 584 (2002), holding that

Arizona’s aggravating factors that render a defendant eligible for a capital sentence

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must be found by a jury. App. 241a. This Court granted Sansing’s petition for

certiorari, vacated the Arizona Supreme Court’s judgment, and remanded for

further consideration in light of Ring. Sansing v. Arizona, 536 U.S. 954 (2002)

(mem.).

On remand, the Arizona Supreme Court held that the failure of a jury to find

the aggravating factors rendering Sansing eligible for a death sentence was

harmless error. App. 241a. In doing so, the state court concluded that “no

reasonable jury could have accorded mitigating weight to the victim’s family’s

request that he be given a life sentence” because a “victim’s sentencing request is

not proper mitigating evidence and therefore a jury could not have considered it.”

App. 259a (citing Lynn v. Reinstein, 68 P.3d 412, 417 (Ariz. 2003)).

C.

Habeas proceedings.

In 2011, Sansing filed a petition for writ of habeas corpus in federal district

court raising 29 claims for relief. App. 11a, 125a. In Claim 12, Sansing asserted that

the sentencing judge violated his Eighth and Fourteenth Amendment rights when

he failed to consider as mitigation the victim’s daughter’s request that he not be

sentenced to death, and that the Arizona Supreme Court’s denial of relief on this

claim was contrary to, and based on an unreasonable application of, Lockett v. Ohio,

438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Skipper v.

South Carolina, 476 U.S. 1, 4 (1986), “because the recommendation of a life

sentence from the victim’s daughter was relevant mitigating evidence.” App. 194a–

95a.

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The district court denied habeas relief. First, the court noted that this Court

“has not addressed the issue or ever held that a victim’s recommendation of

leniency constitutes relevant mitigation.” App. 196a. Consequently, Sansing could

not show that the Arizona Supreme Court’s decision was contrary to or based on an

unreasonable application of “clearly established Federal law” under 28 U.S.C. §

2254(d)(1). Id. Second, in Booth v. Maryland, 482 U.S. 496, 509 (1987), this Court

held that introduction of a victim impact statement during a capital sentencing

proceeding violated the Eighth Amendment. Id. In Payne v. Tennessee, 501 U.S. 808

(1991), this Court partially overruled Booth, but retained Booth’s “prohibition on

admitting ‘characterizations and opinions’ from the victim’s family ‘about the crime,

the defendant, and the appropriate sentence.’” Id. (quoting Payne, 501 U.S. at 830

n.2). As a result, the Arizona Supreme Court’s “failure to recognize an exception for

‘favorable’ sentencing recommendations” was not an unreasonable application of

Payne and Booth. Id. at 196a–97a.

Sansing appealed to the Ninth Circuit, arguing that the district court erred

by denying habeas relief on a number of claims, including Claim 12. The Ninth

Circuit affirmed, holding that relief on Claim 12 was precluded under 28 U.S.C. §

2254(d)(1). App. 44a. The court of appeals noted that this Court has held that the

Eighth Amendment prohibits the State from introducing the victim’s family’s

recommendation that a defendant receive a death sentence, and has never held that

a capital defendant is entitled to present the victim’s family’s recommendation of

leniency. Id. In fact, the court stated that, to its knowledge “no court has adopted

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that interpretation of the Eighth Amendment, and at least two circuits and a

number of state high courts have rejected it.” Id. Sansing now asks for certiorari

review of the Ninth Circuit’s decision.

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REASONS FOR DENYING THE PETITION

This Court grants certiorari “only for compelling reasons,” Sup. Ct. R. 10, and

Sansing presents none. In particular, the court of appeals’ decision creates no circuit

split and does not “decide[] an important federal question in a way that conflicts

with relevant decisions of this Court.” Id. 10(a), (c). Instead, the decision below

constitutes a straightforward application of 28 U.S.C. § 2254(d)(1)’s daunting

standard for habeas relief. Because the decision below correctly applied § 2254(d)(1),

and correctly determined that the Arizona Supreme Court reasonably held that the

trial court was not required to consider the victim’s daughter’s leniency request as

mitigation, this Court should deny certiorari.

I.

THE COURT BELOW CORRECTLY APPLIED 28 U.S.C. § 2254(D)(1)’S

STANDARD IN DENYING HABEAS RELIEF.

Sansing’s habeas petition is governed by AEDPA; thus he is not entitled to

habeas relief unless he establishes that the Arizona Supreme Court’s decision was

“contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by” this Court. 28 U.S.C. § 2254(d)(1). Unless at the time of the

state-court decision there is precedent from this Court squarely addressing the

issue or clearly establishing a controlling legal principle, there is no clearly

established law under § 2254(d)(1) and thus a state prisoner cannot obtain relief.

E.g., Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam); Lopez v. Smith, 574

U.S. 1, 6 (2014) (per curiam); White v. Woodall, 572 U.S. 415, 427 (2014); Thaler v.

Haynes, 559 U.S. 43, 49 (2010); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009);

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Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); Carey v. Musladin,

549 U.S. 70, 76-77 (2006).

In a capital sentencing proceeding, the sentencer cannot be precluded as a

matter of law from considering relevant mitigating evidence. See Smith v. Spisak,

558 U.S. 139, 144 (2010); Eddings, 455 U.S. at 113–14; Lockett, 438 U.S. at 604.

Mitigating evidence, as defined by this Court, consists of “any aspect of a

defendant’s character or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at

604–05.

This Court

has not

addressed whether a

victim’s sentencing

recommendation for leniency constitutes relevant mitigating evidence. See Bosse v.

Oklahoma, 580 U.S. 1, 2 (2016) (per curiam) (vacating state court judgment for

permitting victim relatives to recommend a sentence to a capital jury).

The Court has addressed, however, the admissibility of victim impact

evidence when offered in favor of the death penalty, and has found such statements

inadmissible. In Booth, 482 U.S. at 502–09), this Court held that victim impact

statements, including the surviving victims’ opinions of the crime and appropriate

sentence, violated the Eight Amendment. Several years later, in Payne, 501 U.S. at

811–30, the Court overruled Booth in part, holding that a state may permit a

surviving

victim

to

make

a

statement

describing

the

deceased

victim’s

characteristics and the emotional impact of the crime on the victim’s family. Id. at

824–30 & n.2.

Payne left undisturbed the portion of Booth holding that the

15

admission of a victim’s opinion of the appropriate sentence violates the Eighth

Amendment. Id. at 830 n.2.

The Arizona Supreme Court’s denial of Sansing’s claim was neither contrary

to, nor an unreasonable application of, clearly established Federal law. 28 U.S.C. §

2254(d). Although this Court addressed in Booth and Payne the degree to which a

victim’s sentencing recommendation is admissible when offered against a

defendant, it has never addressed whether a victim’s recommendation is admissible

when a defendant offers it in mitigation.

Given the lack of clearly established

federal law on the matter, the Arizona Supreme Court’s decision cannot be contrary

to, or an unreasonable application of, such law. See Thaler, 559 U.S. at 47–49.

Further, Booth suggests, as the Arizona Supreme Court determined in

Sansing’s case, that a victim’s sentencing recommendation is inadmissible—and

violates the Eighth Amendment—regardless what that recommendation is or which

party offers it. At least two other federal circuits, in addition to the Ninth Circuit in

this case, have agreed with this assessment, demonstrating that there is no split of

authority this Court need resolve.

See United States v. Brown, 441 F.3d 1330,

1350–52 (11th Cir. 2006) (citing, in context of claim that Government suppressed

exculpatory evidence, Payne and Booth to find that evidence of victim’s husband’s

opposition to death penalty was not material “because it was neither relevant nor

admissible”); Robison v. Maynard, 829 F.2d 1501, 1503–05 (10th Cir 1987),

overruled on other grounds by Romano v. Gibson, 239 F.3d 115, 1169 (10th Cir.

2001) (citing, in case where defendant sought to present victim’s desire for leniency,

16

Booth and stating that “the underlying reasoning for limiting the scope of [victim]

evidence allows for no distinction between misdirected evidence offered by either

party”).

Moreover,

under

this

Court’s

jurisprudence,

a

victim’s

sentencing

recommendation does not qualify as relevant mitigating evidence. This Court has

defined mitigation as evidence relating to the defendant’s character, propensity,

record, or the circumstances of the crime. E.g., Lockett, 438 U.S. at 604–05. A

victim’s sentencing preference relates to none of these factors. See Robison, 829

F.3d at 1503–05 (finding a victim’s sentencing recommendation for leniency does

not constitute relevant mitigation because it does not relate to the defendant’s

character or record or the circumstance of the offense); Lynn, 68 P.3d at 417, ¶ 17

(“Victims’ recommendations to the jury regarding the appropriate sentence a capital

defendant should receive are not constitutionally relevant to the harm caused by

the

defendant’s criminal acts or to the

culpability.”).

defendant’s blameworthiness or

The Arizona Supreme Court’s rejection of Sansing’s claim was

therefore neither contrary to, nor an unreasonable application of, clearly

established Federal law.

Finally, even if Sansing had presented a question worthy of this Court’s

review, this case nonetheless provides a poor vehicle to address it because, even if

the sentencing judge had improperly failed to consider the victim’s daughter’s

sentencing preference, Sansing was not prejudiced. A habeas petitioner may obtain

relief only if a state court’s error resulted in actual prejudice—the error must have

17

“had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (quotations omitted). Sansing

suggests that the victim’s sentencing recommendation could have convinced the

sentencing court to impose a life sentence. Petition at 20–21. However, in light of

the aggravation’s significant weight in this horrific offense, the victim’s

recommendation would have carried little weight in the sentencing calculus. In

fact, Judge Reinstein expressly confirmed this point, stating that, even if he

considered all of Sansing’s proffered mitigation (including the unproven mitigation)

against the aggravating factors, it would remain insufficiently substantial for

leniency. State v. Sansing, Maricopa County Superior Court No. CR98–03520(A),

Special Verdict (filed Sept. 30, 1999), at 16. See Scott v. Schriro, 567 F.3d 573, 586

(9th Cir. 2009) (“[I]t is not reasonably probable that Scott's sentence would have

changed had the leniency recommendation been introduced by itself as mitigating

evidence.…”) Thus, even if Sansing were able to show error, he is still not entitled

to habeas relief for lack of actual prejudice. This Court should deny certiorari.

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CONCLUSION

For all of the foregoing reasons, this Court should deny Sansing’s petition for

writ of certiorari.

Respectfully submitted,

KRISTIN K. MAYES

Attorney General

of Arizona

Jeffrey L. Sparks

Deputy Solicitor General/

Section Chief of Capital

Litigation

(Counsel of Record)

DANIEL C. BARR

Chief Deputy

Office of the Arizona

Attorney General

Capital Litigation Section

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-4686

CLDOCKET@AZAG.GOV

Counsel for Respondents

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