Amicus Curiae Brief — Ryan Thornell, Director, Arizona Department of Corrections, Petitioner v. Danny Lee Jones

Supreme Court briefMar 20, 2024

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No. 22-982

In The

Supreme Court of the United States

RYAN THORNELL,

Petitioner,

DANNY LEE JONES,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE

EQUAL JUSTICE U.S.A.

IN SUPPORT OF RESPONDENT

STEVEN J. ALAGNA

Counsel of Record

WASHINGTON UNIVERSITY

SCHOOL OF LAW

APPELLATE CLINIC

One Brookings Drive

MSC 1120-250-102

St. Louis, MO 63130

(314) 935-7238

salagna@wustl.edu

March 20, 2024

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 1

ARGUMENT ............................................................... 2

I. This Court Should Correct Summerlin Because

Applying Ring Retroactively On Collateral

Review Is Consistent With (And Will Help

Clarify) This Court’s Retroactivity Doctrine. .... 2

A. Ring Announced A Substantive Rule

Because It Made Certain Factual Findings

Constitutionally Necessary To Impose The

Death Penalty On A Class Of Defendants. .. 5

B. Even If Ring Had Not Announced A

Substantive Rule, Its Retroactive

Application Is Necessary To Ensure

Fundamental Fairness And Would Not

Hinder The Administration Of Justice. ..... 11

1. Fundamental fairness requires that a

death sentence reliably reflect normative

community values. ................................. 12

2. Ring ensures fundamental fairness by

requiring death sentences to reflect

normative community values. ............... 15

3. Applying Ring’s rule retroactively would

not hinder the administration

of justice. ................................................ 17

C. Overruling Summerlin Does Not Offend

Principles Of Stare Decisis. ........................ 22

II. Mr. Jones Establishes Strickland Prejudice By

Showing A Reasonable Probability Of A

Different Outcome In A Constitutional (Not A

Pre-Ring) Proceeding. ...................................... 24

CONCLUSION.......................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrus v. Texas,

140 S. Ct. 1875 (2020) ....................................... 27

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................. 5

Beard v. Banks,

542 U.S. 406 (2004) ........................................... 10

Blakely v. Washington,

542 U.S. 296 (2004) ............................................. 9

Correll v. Ryan,

539 F.3d 938 (9th Cir. 2008) .............................. 27

Desist v. United States,

394 U.S. 244 (1969) ............................................ 13

DeStefano v. Woods,

392 U.S. 631 (1968) ........................................... 21

Dugger v. Adams,

489 U.S. 401 (1989) ............................................ 13

Duncan v. Louisiana,

391 U.S. 145 (1968) ..................................... 14, 15

Edwards v. Vannoy,

141 S. Ct. 1547 (2021) ................... 2, 3, 10, 11, 18

Enmund v. Florida,

458 U.S. 782 (1982) ............................. 6, 8, 10, 16

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ....................................... 24

Ford v. Wainwright,

477 U.S. 399 (1986) ....................................... 7, 23

Furman v. Georgia,

408 U.S. 238 (1972) ................................. 3, 20, 23

Gideon v. Wainwright,

372 U.S. 335 (1963) ................................... 2, 4, 11

Glossip v. Gross,

576 U.S. 863 (2015) ............................................ 23

Hurst v. Florida,

136 S. Ct. 616 (2016) ......................................... 14

Johnson v. New Jersey,

384 U.S. 719 (1966) ........................................... 13

Jones v. Mississippi,

141 S. Ct. 1307 (2021) ......................................... 7

Kansas v. Marsh,

548 U.S. 163 (2006) ........................................... 13

Linkletter v. Walker,

381 U.S. 618 (1965) ............................................. 3

Lonchar v. Thomas,

517 U.S. 314 (1996) ............................................. 3

Mackey v. United States,

401 U.S. 667 (1971) ....................3, 8, 9, 12, 13, 23

Matthews v. Workman,

577 F.3d 1175 (10th Cir. 2009) ......................... 27

McGill v. Shinn,

16 F.4th 666 (9th Cir. 2021) .............................. 27

Miller v. Alabama,

567 U.S. 460 (2012) ..................................... 4, 7, 8

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) ................................. 7, 8, 19

O’Dell v. Netherland,

521 U.S. 151 (1997) ........................................... 10

Penry v. Lynaugh,

492 U.S. 302 (1989) ......................................... 7, 9

Pickelsimer v. Wainwright,

375 U.S. 2 (1963) ............................................... 11

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ....................................... 22

Ring v. Arizona,

536 U.S. 584 (2002) ................1, 5, 6, 8, 14, 15, 26

Roberts v. Russell,

392 U.S. 293 (1968) ........................................... 13

Robinson v. Neil,

409 U.S. 505 (1973) ............................................. 3

Sanders v. United States,

373 U.S. 1 (1963) ............................................... 20

Sawyer v. Smith,

497 U.S. 227 (1990) ........................................... 10

Schriro v. Summerlin,

542 U.S. 348 (2004) .............. 1, 5–7, 9, 10, 14, 16,

17, 21, 24

Spaziano v. Florida,

468 U.S. 447 (1984) ............................................ 14

State v. Jones,

917 P.2d 200 (Ariz. 1996) .................................. 19

Strickland v. Washington,

466 U.S. 668 (1984) ........................... 2, 11, 25, 26

Summerlin v. Schriro,

427 F.3d 623 (9th Cir. 2005) ............................. 28

Teague v. Lane,

489 U.S. 288 (1989) .............................. 3, 9, 12, 19

Tison v. Arizona,

481 U.S. 137 (1987) .............................................. 6

Welch v. United States,

136 S. Ct. 1257 (2016) ......................................... 9

Whorton v. Bockting,

549 U.S. 406 (2007) ........................................... 11

Wiggins v. Smith,

539 U.S. 510 (2003) ..................................... 26, 27

Williams v. Taylor,

529 U.S. 362 (2000) ........................................... 25

Witherspoon v. Illinois,

391 U.S. 510 (1968) ..................................... 14, 20

Statutes & Rules

Ariz. Rev. Stat. § 13-752(H) ..................................... 27

Sup. Ct. R. 37.6 .......................................................... 1

Other Authorities

Death Penalty Info. Ctr., The Death Penalty in 2023:

Year End Report (2023),

https://deathpenaltyinfo.org/facts-andresearch/dpic-reports/dpic-year-end-reports/thedeath-penalty-in-2023-year-end-report ............ 19

vii

Death Row, Ariz. Dep’t of Corr. Rehab. & Reentry,

https://corrections.az.gov/death-row ................. 18

Death Row, Idaho Dep’t of Corr.,

https://www.idoc.idaho.gov/content/prisons/

death-row#:~:text=We%20currently%20have%

20eight%20residents%20under%20the%20

sentence%20of%20death%20in%20Idaho ........ 18

Death Sentences in the United States Since 1973,

Death Penalty Info. Ctr.,

https://deathpenaltyinfo.org/facts-andresearch/sentencing-data/death-sentences-in-theunited-states-from-1977-by-state-and-by-year . 16

Harry Kalven, Jr. & Hans Zeisel, The American Jury

and the Death Penalty, 33 U. Chi. L. Rev. 769

(1966) ................................................................. 15

Henry J. Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L.

Rev. 142 (1970) .............................................. 3, 18

James N.G. Cauthen & Barry Latzer, Why So Long?

Explaining Processing Time in Capital Appeals,

29 Just. Sys. J. 298 (2008) ................................ 19

Paul M. Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Harv. L.

Rev. 441 (1963) .............................................. 3, 20

Phoebe C. Ellsworth, Are Twelve Heads Better than

One?, 52 L. & Contemp. Probs. 205 (1989) ....... 14

Samuel Stebbins, This is How Many People are on

Death Row in Montana, The Ctr. Square (Nov.

viii

22, 2022),

https://www.thecentersquare.com/montana/thisis-how-many-people-are-on-death-rowinmontana/article_5e51e442-39b8-5d42-b2c26b1bfcea256b.html ............................................ 18

Stephen Gillers, Deciding Who Dies, 129 U. Pa. L.

Rev. 1 (1980) ...................................................... 15

The Inmates on Nebraska’s Death Row and Their

Crimes, Omaha World Herald (June 25, 2021),

https://omaha.com/the-inmates-on-nebraska-sdeath-row-and-their-crimes/collection_097542fdfde7-501f-bed4755fa540637f.html#1 ................ 18

The Truth About Life Without Parole: Condemned to

Die in Prison, ACLU N. Cal. (Sep. 25, 2013),

https://www.aclunc.org/article/truth-about-lifewithout-parole-condemned-dieprison#:~:text=The%20facts%20prove%20that%2

0life,of%20 people%20sentenced%20to

%20death ............................................................ 20

INTEREST OF AMICUS CURIAE1

Amicus Equal Justice USA (EJUSA) is a

national organization that works to transform the

justice system by promoting responses to violence that

break cycles of trauma, working at the intersection of

criminal justice, public health, and racial justice to

elevate healing over retribution, meet the needs of

survivors, advance racial equity, and build community

safety. As part of its mission, EJUSA monitors and

promotes community awareness about the death

penalty and its impacts on community safety, healing,

and accountability.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 2002, this Court returned to an ancient and

fundamental common-law rule that any facts required

for the imposition of the death penalty must be found

by the jury, not the judge. Ring v. Arizona, 536 U.S.

584, 609 (2002).

Two years later, in Schriro v. Summerlin, the

Court declined to apply Ring retroactively to cases on

collateral review, presuming that it announced a

procedural rule. 542 U.S. 348, 358 (2004). But in that

decision, the Court overlooked the constitutionally

substantive aspects wrapped up in Ring and, in the

process, further blurred the Court’s retroactivity

jurisprudence. Respondent Danny Lee Jones’s case

1 Counsel for amicus curiae certifies that no counsel for a

party authorized this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the

preparation or submission of this brief. Sup. Ct. R. 37.6.

highlights why the Court should correct Summerlin

and hold that Ring applies retroactively.

At the very least, in cases like this one that

involve ineffective assistance of counsel layered on top

of an already-unconstitutional pre-Ring sentencing

regime, the Court should clarify that the proper

barometer for prejudice under Strickland v.

Washington, 466 U.S. 668 (1984), is whether

correcting

counsel’s

constitutionally

deficient

performance would have made a difference in a

constitutional (post-Ring) sentencing proceeding. In

other words, Mr. Jones can show prejudice if there is

a reasonable probability that a single juror, rather

than his sentencing judge, would have recommended

a sentence other than death. To hold otherwise would

penalize the most vulnerable defendants who were

unlucky enough to be subjected to proceedings that

violated their constitutional rights in multiple

respects.

ARGUMENT

This Court Should Correct Summerlin

Because Applying Ring Retroactively On

Collateral Review Is Consistent With (And

Will

Help

Clarify)

This

Court’s

Retroactivity Doctrine.

In Edwards v. Vannoy, 141 S. Ct. 1547 (2021),

this Court affirmed that new constitutional

substantive rules are retroactively applicable on

collateral review, but new constitutional procedural

rules are not—even if they are “watershed” procedural

rules. Id. at 1559–60. But the Court also

acknowledged that the rule in Gideon v. Wainwright,

372 U.S. 335 (1963), is not substantive, and yet

continues to apply retroactively. Vannoy, 141 S. Ct. at

1557.

Even throughout the changes in its

retroactivity jurisprudence,2 this Court has

consistently

recognized

two

categories

Until 1965, new constitutional rules always applied

retroactively. Robinson v. Neil, 409 U.S. 505, 507 (1973) (“[U]ntil

[Linkletter v. Walker, 381 U.S. 618 (1965)], both the common law

and our own decisions recognized a general rule of retrospective

effect for the constitutional decisions of this Court.”). Following

Linkletter, however, this Court frequently found that

administration-of-justice interests and related concerns

outweighed the traditional equitable concerns driving the Great

Writ. See generally Lonchar v. Thomas, 517 U.S. 314, 322–28

(1996). To Justice Rehnquist and the majority of the Court in the

early 1970s, rules apply retroactively if they (1) go to the “very

integrity” (i.e., accuracy) “of the factfinding process,” Robinson,

409 U.S. at 508 (quoting Linkletter, 381 U.S. at 639), or (2)

prohibit the imposition of unconstitutional punishments, see,

e.g., Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (finding the

death penalty unconstitutional in certain contexts). To Justice

Harlan, rules apply retroactively if they uphold substantive due

process, procedural due process, or fundamental fairness. See

Mackey v. United States, 401 U.S. 667, 692–94 (1970) (Harlan, J.,

concurring); see also Henry J. Friendly, Is Innocence Irrelevant?

Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,

151–53, 172 (1970) (explaining that rules related to factual

innocence or lack of jurisdiction should be applied retroactively);

Paul M. Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441, 456, 460 (1963)

(explaining that rules that address the “full and fair opportunity

to . . . litigate” or result in a lack of jurisdiction warrant

retroactive application). Under Teague v. Lane, substantive rules

and “watershed” procedural rules applied retroactively. 489 U.S.

288, 311 (1989) (plurality opinion). Most recently, in Vannoy, this

Court affirmed the retroactive applicability of substantive rules

but disavowed the existence of new “watershed” procedural rules.

141 S. Ct. at 1559–60.

constitutional rules that apply retroactively on

collateral review. The first includes substantive rules,

such as those creating new elements that limit

authority to impose a particular punishment. See, e.g.,

Miller v. Alabama, 567 U.S. 460 (2012). The second

includes non-substantive rules that significantly

enhance fundamental fairness, see, e.g., Gideon, 372

U.S. at 342–45, especially when retroactive

application

would

not

overly

burden

the

administration of justice. Ring checks both boxes.

Accordingly, Summerlin got Ring wrong in two

principal ways. First, it improperly characterized

Ring’s substantive guarantee as merely allocating

decision-making authority, when in fact it added a

requirement that insured against the risk of imposing

a constitutionally disproportionate death sentence.

Second, it made short shrift of the concept of accuracy

that is necessary to guarantee fundamental fairness.

Properly understood, Ring ensures not only factual

accuracy (whether the factfinder correctly construed

the reality of what happened), but also a more

normative accuracy (whether a death sentence

adequately reflects community values) that only a

jury can guarantee. As a result, Summerlin

overlooked the essential role community values play

in achieving fundamental fairness in capital cases like

Mr. Jones’s. And stare decisis offers no justification to

adhere to Summerlin’s errors.

A. Ring Announced A Substantive Rule

Because It Made Certain Factual

Findings Constitutionally Necessary

To Impose The Death Penalty On A

Class Of Defendants.

An Arizona jury found Timothy Stuart Ring

guilty of felony murder, but not premeditated murder.

Ring, 536 U.S. at 591–92. Based on that jury

determination, Ring was not eligible for capital

punishment unless additional aggravating factors

were present. Id. at 594. The state-court sentencing

judge filled the gap himself when, untethered from

any factual finding by the jury, he found that Ring was

the killer. Id.

This Court held that the state court’s approach

violated Ring’s Sixth Amendment right to have a jury,

rather than a judge, find all facts necessary to

sentence him to death. Id. at 609. The Court reasoned

that “Arizona’s enumerated aggravating factors

operate as ‘the functional equivalent of an element of

a greater offense,’” such that they must be found by a

jury. Id. (quoting Apprendi v. New Jersey, 530 U.S.

466, 494 n.19 (2000)).

Two terms later, Summerlin noted that if Ring

had made finding “a certain fact essential to the death

penalty,” that rule “would be substantive,” and

therefore retroactive. 542 U.S. at 354. That is exactly

what Ring did.

Summerlin ignored what Ring expressly

stated: that Arizona’s aggravating circumstances

operated against the backdrop of Eighth Amendment

protections recognized by this Court. See Ring, 536

U.S. at 594 (describing Arizona’s regime requiring

certain aggravating circumstances before capital

punishment became an eligible sentence and citing

Enmund v. Florida, 458 U.S. 782, 797 (1982) (holding

that the Eighth Amendment prohibits imposing the

death penalty on a felony-murder accomplice who

“does not himself kill, attempt to kill, or intend that a

killing take place”)). In other words, Arizona’s

statutory aggravators necessary for a capital sentence

mapped onto this Court’s decisions explaining that the

death

penalty

unconstitutionally

disproportionate punishment for felony-murder

defendants who did not participate in the killing (or

act as a major participant in the felony with reckless

indifference to human life). See Ring, 536 U.S. at 594

(first citing Enmund, 458 U.S. at 798; and then citing

Tison v. Arizona, 481 U.S. 137, 158 (1987)). In fact,

Justice Breyer concurred in Ring because he saw the

Eighth Amendment, and not the Sixth, as mandating

the jury’s involvement in capital cases. Id. at 614

(Breyer, J., concurring).

Accordingly, when Summerlin suggested

(parenthetically) that Arizona’s aggravators operated

only “as a matter of state law,” 542 U.S. at 354, it

failed to account for the whole picture. More

accurately, Arizona’s statutory aggravators tracked

the Eighth Amendment’s requirements such that the

death penalty in the absence of such aggravators

risked violating the Eighth Amendment’s guarantee

of proportional punishment. So Summerlin’s

suggestion that Ring did anything other than make “a

certain fact essential to the death penalty,” id., is a

misreading.

Properly understood, then, Ring is no different

from Miller v. Alabama, 567 U.S. 460 (2012), whose

rule this Court found to be substantive (and therefore

retroactive) in Montgomery v. Louisiana, 136 S. Ct.

718 (2016). Miller held that mandatory life without

parole for juvenile offenders was disproportionate

under the Eighth Amendment. 567 U.S. at 479.

Montgomery then recognized that Miller’s rule was

substantive because it prohibited a particular form of

punishment for a class of persons (that is, children,

who generally lack the culpability to justify such a

harsh punishment). 136 S. Ct. at 734–35. And while

Miller’s rule contains a procedural component—a

proceeding by which the court must determine

whether a particular juvenile defendant is a member

of the protected class or whether certain

circumstances aggravate a child’s culpability

sufficient to justify life without parole—that does not

render Miller’s rule procedural. Id.; accord Jones v.

Mississippi, 141 S. Ct. 1307, 1321 (2021).3

So too here. Arizona’s sentencing regime

operated against a backdrop that recognized that the

aggravators required to impose the death penalty are

the same mechanism that also checks against a risk

3 See also Penry v. Lynaugh, 492 U.S. 302, 330 (1989)

(holding that rules depriving the state of the power to “punish by

death” a class of defendants is a substantive rule); Ford v.

Wainwright, 477 U.S. 399, 405 (1986) (“[T]he Constitution places

[] substantive restriction[s] on the State’s power to take the life

of an insane prisoner.”).

of imposing a capital sentence that is disproportionate

(and therefore unconstitutional). Ring, 536 U.S. at

594; cf. Miller, 567 U.S. at 479 (holding that the

juvenile-sentencing scheme at issue “poses too great a

risk of disproportionate punishment”).

Ring’s recognition that a jury must find the

requisite aggravators tracks Miller’s “procedural

requirement necessary to implement a substantive

guarantee,” which gives the defendant an opportunity

to “show that he belongs to the protected class.”

Montgomery, 136 S. Ct. at 734–35; see also Mackey,

401 U.S. at 692 n.7 (Harlan, J., concurring) (“Some

rules may have both procedural and substantive

ramifications.”).

In fact, Jones v. Mississippi recently clarified

that Miller required only a regime where sentencing a

child to life without parole was discretionary, plus a

hearing to consider the child’s youth and its attendant

characteristics. 141 S. Ct. at 1316–18. As members of

this Court have recognized, Jones’s conception of

Miller makes it functionally equivalent to Ring such

that there is no reason to continue to refuse its

retroactive applicability. Id. at 1335–36. (Sotomayor,

J., dissenting).

Were there any doubt about the Eighth

Amendment overlay inextricably wrapped up in Ring,

the Court need look no further than Enmund. There,

social norms and jury determinations were central to

Enmund’s conclusion that the death penalty was

disproportionate for minimally culpable defendants

who were mere accomplices to felony murder. 458 U.S.

at 794 (explaining the ways “sentencing decisions that

juries have made” were “overwhelming” evidence of

“[s]ociety’s rejection of the death penalty for

accomplice liability in felony murders”).

Accordingly, Summerlin’s assertion that “the

range of conduct punished by death in Arizona was

the same before Ring as after,” 542 U.S. at 354,

misunderstands the transformative effect of requiring

a jury to decide the question, rather than the judge.

By assigning the issue to a jury, Ring changed the

nature of the question, necessarily infusing it with

community-based, normative value judgments that

only a jury can render. See infra Section I.B.

Put another way, Ring removed Arizona’s

authority to impose the death penalty absent a jury’s

finding of the requisite aggravating circumstances.

See Blakely v. Washington, 542 U.S. 296, 303–04

(2004). Rules that do that are substantive. See Penry,

492 U.S. at 330 (explaining that “a new rule placing a

certain class of individuals beyond the State’s power

to punish by death” is substantive as “the Constitution

itself deprives the State of the power to impose a

certain penalty”); accord Teague, 489 U.S. at 307;

Mackey, 401 U.S. at 692 (Harlan, J., concurring).

In contrast, strictly procedural rules regulate

only “the manner of determining the defendant’s

culpability.” Welch v. United States, 136 S. Ct. 1257,

1265 (2016) (cleaned up). Ring is not like other juryrelated rules that the Court has found to be

procedural and not retroactive. Those rules do not

limit judicial authority to punish based on the absence

of a necessary element and against the backdrop of the

Eighth Amendment’s proportionality principles.

Rather, they regulate only how a jury functions. See,

e.g., O’Dell v. Netherland, 521 U.S. 151, 153 (1997)

(holding non-retroactive the rule that the defendant

may inform the jury of his ineligibility for parole if the

prosecutor cites further dangerousness); Sawyer v.

Smith, 497 U.S. 227, 229 (1990) (holding nonretroactive the rule forbidding suggesting to a capital

jury that it is not responsible for a death sentence);

Beard v. Banks, 542 U.S. 406, 408 (2004) (holding nonretroactive the constitutional criminal procedural rule

that forbids instructing a jury to disregard nonunanimous mitigating factors); Edwards v. Vannoy,

141 S. Ct. 1547 (2021) (holding non-retroactive the

rule that jury verdicts be unanimous in state criminal

trials).

At bottom, Ring held that a jury must find

aggravators necessary to impose the death penalty—

not only as a matter of state law, but against the

backdrop of the Eighth Amendment. In effect, it

“made a certain [category of] fact[s] essential to the

death penalty,” which amounts to a substantive rule.

Summerlin, 542 U.S. at 354. And as Enmund shows,

requiring that the question of aggravating

circumstances be submitted to a jury does more than

simply allocate decision-making authority; it

transforms the question into one that must reflect

social understandings of proportionality and

culpability. See 458 U.S. at 794; see also infra Section

I.B.

B. Even If Ring Had Not Announced A

Substantive Rule, Its Retroactive

Application Is Necessary To Ensure

Fundamental Fairness And Would Not

Hinder The Administration Of Justice.

Ring applies retroactively notwithstanding the

end of Teague’s “watershed” exception in Edwards v.

Vannoy, 141 S. Ct. 1547, 1559–60 (2021). This is

because the retroactive applicability of Gideon v.

Wainright, 372 U.S. 335 (1963), has never depended

on the watershed exception. See Pickelsimer v.

Wainwright, 375 U.S. 2 (1963). Nor has this Court

questioned Gideon’s continued retroactivity. While

Vannoy concluded that “new procedural rules do not

apply retroactively on federal collateral review,” 141

S. Ct. at 1562, it did not purport to touch Gideon or

this Court’s other retroactivity precedent.

Because Gideon has survived Teague and

Vannoy, it logically follows that this Court has either

broadened the category of “substantive” rules or that

there is another category of non-substantive rules

that apply retroactively on collateral review. This

Court’s precedents support recognizing that this other

category encompasses rules like Gideon’s that ensure

fundamental

fairness

and

would

not

disproportionately disrupt the administration of

justice, consistent with the purposes of habeas

doctrine. See, e.g., Strickland v. Washington, 466 U.S.

668, 697 (1984) (“Fundamental fairness is the central

concern of the writ of habeas corpus”); Whorton v.

Bockting, 549 U.S. 406, 419 (2007) (explaining that

Gideon has a “direct and profound” connection to the

“accuracy of the factfinding process”).

Ring fits this bill. Like Gideon, Ring ensures

fundamental fairness by requiring that death

eligibility be determined by juries. And, importantly,

Ring’s retroactive application would not unduly

impede the administration of justice.

Fundamental fairness requires

that a death sentence reliably

reflect normative community

values.

The purpose of the retroactive application of

new rules on collateral review has always been to

ensure fundamental fairness.

[I]t has been the law, presumably for at

least as long as anyone currently in jail

has been incarcerated, that procedures

utilized to convict them must have been

fundamentally fair, that is, in

accordance with the command of the

Fourteenth Amendment that no State

shall . . . deprive any person of life,

liberty, or property, without due

process of law.

Mackey, 401 U.S. at 689 (Harlan, J., concurring)

(cleaned up).

That is why Justice Harlan recommended (and

this Court blessed the proposition) that constitutional

procedural rules that are “implicit in the concept of

ordered liberty” and are necessary to ensure

proceedings are “fundamentally fair” should apply

retroactively. Id. at 693 (Harlan, J., concurring); see

also Teague, 489 U.S. at 292 (“[W]e adopt Justice

Harlan’s approach to retroactivity for cases on

collateral review.”). And it explains Gideon’s

consistently recognized retroactive application. See

Mackey, 401 U.S. at 693–94 (Harlan, J., concurring)

(explaining that Gideon’s rule is an example of

changed “understanding[s] of the bedrock procedural

elements that must be found to vitiate the fairness of

a particular conviction,” thus warranting retroactive

application).

As this Court has recognized, Gideon’s rule

preserves fundamental fairness because it ensures

“the very integrity of the fact-finding process.”

Johnson v. New Jersey, 384 U.S. 719, 728 (1966);

accord Desist v. United States, 394 U.S. 244, 250, 250

n.15 (1969) (naming Gideon among cases where new

constitutional rules applied retroactively because of

their centrality to the reliability of fact-finding);

accord Roberts v. Russell, 392 U.S. 293, 294 (1968).

Capital cases like this one implicate special

concerns at the heart of factfinding. See Dugger v.

Adams, 489 U.S. 401, 410 n.6 (1989) (“Demonstrating

that an error is by its nature the kind of error that

might have affected the accuracy of a death sentence

is far from demonstrating that an individual

defendant probably is ‘actually innocent’ of the

sentence he or she received.”).

More specifically, fundamental fairness in

capital cases requires that a death sentence reflect not

only a correct determination of black and white

adjudicative facts, but also of normative community

judgments. See Kansas v. Marsh, 548 U.S. 163, 180

(2006) (“[A] jury’s conclusion that [the existence of]

aggravating evidence . . . is a decision for death and is

indicative of the type of measured, normative process

in which a jury is constitutionally tasked to engage

when deciding the appropriate sentence for a capital

defendant.”); Witherspoon v. Illinois, 391 U.S. 510,

520 (1968) (finding a jury that excludes people

opposed to the death penalty “cannot speak for the

community”); Summerlin, 542 U.S. at 360 (Breyer, J.,

dissenting) (“[A] death sentence must reflect a

community-based judgment that the sentence

constitutes proper retribution.”).

Only a jury can render such normative

community judgments:

Juries—comprised as they are of a fair

cross section of the community—are

more representative institutions than is

the judiciary; they reflect more

accurately

the

composition

and

experiences of the community as a whole,

and inevitably make decisions based on

community values more reliably, than

can that segment of the community that

is selected for service on the bench.

Spaziano v. Florida, 468 U.S. 447, 486–87 (1984)

(Stevens, J., concurring in part) (cleaned up),

overruled in part on other grounds, Hurst v. Florida,

136 S. Ct. 616 (2016); see also Witherspoon, 391 U.S.

at 519 (noting that it is imperative that a jury “express

the conscience of the community on the ultimate

question of life or death.”); Phoebe C. Ellsworth, Are

Twelve Heads Better Than One?, 52 L. & Contemp.

Probs. 205 (1989).

As Ring acknowledged, 536 U.S. at 609, the

framers recognized that this critical jury function is

implicit in the concept of ordered liberty. See Duncan

v. Louisiana, 391 U.S. 145, 156 (1968) (“[T]he jury

trial provisions in the Federal and State Constitutions

reflect a fundamental decision about the exercise of

official power—a reluctance to entrust plenary powers

over the life and liberty of the citizen to one judge.”).

And that is why this Court has recognized for

decades that when the jury disagrees with the judge,

the jury serves “the very purposes for which they were

created.” Duncan, 391 U.S. at 157; see also Ring, 536

U.S. at 612 (2002) (Scalia, J., concurring) (“[T]he

repeated spectacle of a man’s going to his death

because a judge found that an aggravating factor

existed . . . [undermines] our veneration for the

protection of the jury in criminal cases.” (cleaned up)).

Unfortunately, such disagreements are not

rare. See, e.g., Stephen Gillers, Deciding Who Dies,

129 U. Pa. L. Rev. 1, 67 (1980) (noting that judge and

jury disagreed 60% of the time in cases where the

death penalty is imposed); Harry Kalven, Jr. & Hans

Zeisel, The American Jury and the Death Penalty, 33

U. Chi. L. Rev. 769, 770–71 (1966) (noting similar

disagreement 20% of the time).

Accordingly, capital sentences cannot reliably

reflect necessary, normative, community-based

judgments unless they come from a jury.

Ring

ensures

fundamental

fairness by requiring death

sentences to reflect normative

community values.

Ring’s rule—requiring a jury determination of

death eligibility—ensures that death sentences

reliably reflect such values-based community

judgments. In fact, the Arizona capital-sentencing

regime at issue in Ring and Summerlin perfectly

illustrates the necessity of these kinds of normative

determinations. See, e.g., Summerlin, 542 U.S. at

361–62 (Breyer, J., dissenting) (explaining that

Arizona’s aggravating circumstances, such as

“especially heinous, cruel, or depraved” conduct, are

fundamentally normative judgments). And here, Mr.

Jones’s death sentence was based in part on the

judge’s (not the jury’s) finding of that particular

aggravator. J.A. 2–3.

Indeed, consistent with juries being uniquely

positioned to make the kind of normative decisions

inherent in capital cases, Arizona death sentences

dropped by nearly half after Ring.4

This significant change confirms that Ring

announced a rule that ensures fundamental fairness.

See Summerlin, 542 U.S. at 361, 362–66 (Breyer J.,

dissenting) (explaining that “[a] jury is better

equipped than a judge to identify and to apply those

standards [that incorporate values] accurately[,]” and

thus “the risk [that the death penalty was improperly

imposed] is one that the law need not and should not

tolerate”); see also Enmund, 458 U.S. at 794

(recognizing that juries’ sentencing decisions provided

“overwhelming” evidence of “[s]ociety’s rejection of the

4 Arizona imposed the death sentence an average of 4.2

times per year in the years following Ring (2003–2022),

compared to an average of 7.45 times per year in the years

preceding Ring (1973–2002). See Death Sentences in the United

States

Since

1973,

Death

Penalty

Info.

Ctr.,

https://deathpenaltyinfo.org/facts-and-research/sentencingdata/death-sentences-in-the-united-states-from-1977-by-stateand-by-year.

death penalty for accomplice liability in felony

murders”).

Ring’s rule therefore ensures fundamental

fairness the same way Gideon’s does. So Summerlin

got it wrong when it suggested that Arizona’s

aggravator for “heinous, cruel, or depraved” conduct

was not dependent on “community standards.” 542

U.S. at 357. Even if that had correctly described how

the aggravator functioned when a judge decided it,

Ring’s requirement that the jury decide such a

question transformed it into one that necessarily

reflects community standards.

Similarly, Summerlin suggested that “for every

argument why juries are more accurate factfinders,

there is another why they are less accurate.” Id. at

356. Of course, the framers’ and this Court’s repeated

recognitions of the jury’s centrality—to say nothing of

the empirics of judges and juries disagreeing

(especially on capital sentences)—provide serious

reasons to question Summerlin’s ambivalence. But

where Summerlin really went wrong was in giving

short shrift to the more normative role a jury plays in

capital cases. Unlike in other criminal cases,

disagreement over even one aggravating circumstance

may be the difference between life and death.

Applying

Ring’s

rule

retroactively would not hinder

the administration of justice.

Of course, most new constitutional rules are

“obviously important,” see Vannoy, 141 S. Ct. at 1573

(Gorsuch, J., concurring), but are nonetheless

improper candidates for retroactive application

because they impede the administration of justice, id.

at 1554–55 (majority opinion). The retroactive

application of many new constitutional rules would be

overly disruptive and costly. See id. at 1554.

(“[C]onducting scores of retrials years after the crimes

occurred would require significant state resources.”);

Henry J. Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,

148 (1970) (“Indeed, the most serious single evil with

today’s proliferation of collateral attack is its drain

upon the resources of the community.”).

But Ring is different. Not only does it ensure

fundamental fairness, as explained above, see supra

Section I.B, but its retroactive application would not

unduly impede the administration of justice, finality

concerns, or federalism interests.

First, applying Ring retroactively would leave

defendants’ convictions untouched and would vacate

only their sentences. So there would be no need to

retry questions of guilt.

And there are currently fewer than 50 deathrow inmates who were sentenced under a regime that

violates Ring.5 Each state could make its own decision

5 See Death Row, Ariz. Dep’t of Corr. Rehab. & Reentry,

https://corrections.az.gov/death-row; Death Row, Idaho Dep’t of

Corr.,

https://www.idoc.idaho.gov/content/prisons/deathrow#:~:text=We%20currently%20have%20eight%20residents%2

0under%20the%20sentence%20of%20death%20in%20Idaho;

The Inmates on Nebraska’s Death Row and Their Crimes, Omaha

World Herald (June 25, 2021), https://omaha.com/the-inmateson-nebraska-s-death-row-and-their-crimes/collection_097542fdfde7-501f-bed4-755fa540637f.html#1; Samual Stebbins, This is

How Many People are on Death Row in Montana, The Ctr. Square

(Nov. 22, 2022), https://www.thecentersquare.com/montana/this-

about how to handle its handful of affected

defendants, but there are options that minimize any

expenditure of resources. Cf. Montgomery, 136 S. Ct.

at 736 (holding that Miller’s retroactivity “does not

require States to relitigate sentences, let alone

convictions,” as states could simply commute lifewithout-parole sentences to permit parole eligibility).

Second, Ring’s retroactive application does not

significantly undermine states’ finality interests. Of

course, traditional finality interests in preserving

state-court resources are “wholly inapplicable to the

capital sentencing context.” Teague, 489 U.S. at 321

n.3 (Stevens, J., concurring in part). That is because—

as this case illustrates—capital cases produce more

litigation, often lasting decades.

Here, Mr. Jones’s death sentence was affirmed

almost three decades ago. State v. Jones, 917 P.2d 200,

222 (Ariz. 1996). And his case is not an exception: In

2023, executed prisoners spent an average of 23 years

on death row, with six prisoners spending more than

30 years on death row before being executed. Death

Penalty Info. Ctr., The Death Penalty in 2023: Year

End Report (2023), https://deathpenaltyinfo.org/factsand-research/dpic-reports/dpic-year-end-reports/thedeath-penalty-in-2023-year-end-report;

see

also

James N.G. Cauthen & Barry Latzer, Why So Long?

Explaining Processing Time in Capital Appeals, 29

Just. Sys. J. 298, 298–99 (2008). In contrast, appeals

is-how-many-people-are-on-death-row-inmontana/article_5e51e442-39b8-5d42-b2c2-6b1bfcea256b.html.

in life-without-parole cases are typically resolved in

less than two years. The Truth About Life Without

Parole: Condemned to Die in Prison, ACLU N. Cal.

(Sep. 25, 2013), https://www.aclunc.org/article/truthabout-life-without-parole-condemned-dieprison#:~:text=The%20facts%20prove%20that%20lif

e,of%20people%20sentenced%20to%20death.

This

very case may have ended decades ago had Mr. Jones

been sentenced to life without parole. Such protracted

litigation undermines finality interests in promoting

rehabilitation. See Sanders v. United States, 373 U.S.

1, 24–25 (1963) (Harlan. J., dissenting) (“Both the

individual criminal defendant and society have an

interest in insuring that there will at some point be

the certainty that comes with an end to litigation, and

that attention will ultimately be focused . . . on

whether the prisoner can be restored to a useful place

in the community.”).

And of course, death sentences carry a different

kind of finality: Death cannot be reversed. See

Furman v. Georgia, 408 U.S. 238, 290 (1972)

(Brennan, J., concurring) (“[Death] may have been

unconstitutionally inflicted yet the finality of death

precludes relief.” (citing Witherspoon v. Illinois, 391

U.S. 510 (1968))).

Third, Ring’s retroactive application does not

threaten federalism. To the contrary, it is continuous,

collateral,

federal-court

challenges

state

convictions that undermine federalism. See generally

Paul M. Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Harv. L. Rev.

441, 453–62 (1963).

Summerlin missed the mark on these points,

too. Summerlin brushed off the reality that applying

Ring retroactively would affect only a small—now

much smaller—subclass of defendants, suggesting

that such considerations “are irrelevant under

Teague.” 542 U.S. at 358 n.6. Yet in the same breath,

Summerlin relied on DeStefano v. Woods, 392 U.S.

631, 633–34 (1968) (holding that the right to a jury for

serious crimes was not retroactively applicable).

Summerlin, 542 U.S. at 356–57. DeStefano, of course,

was pre-Teague, and itself turned on concerns that

retroactively applying the jury-trial right would

significantly hamper “law enforcement and the

administration of justice . . . because the denial of [a]

jury trial has occurred in a very great number of cases

in those States not until now accepting the Sixth

Amendment guarantee.” DeStefano, 392 U.S. at 634;

see also Summerlin, 542 U.S. at 365 (Breyer, J.,

dissenting) (“Retroactivity [in DeStefano], unlike

here, would have thrown the prison doors open wide”).

Unlike in DeStefano, Ring’s more limited scope

minimizes the impact its retroactive application

would have on the administration of justice for the

reasons explained above. Summerlin, 542 U.S. at 366

(Breyer, J., dissenting) (“[T]he DeStefano court would

have come out differently had it been considering

Ring’s rule.”). And any impact on such concerns has

only shrunk even more in the 20 years since

Summerlin was incorrectly decided.

In sum, Ring is exceptional because it not only

ensures fundamental fairness by requiring that death

sentences reliably reflect normative ideas of

community justice, but it also presents minimal

disruptions to finality and other administration-of-

justice concerns. This Court should therefore correct

Summerlin and apply Ring retroactively.

C. Overruling Summerlin Does Not

Offend Principles Of Stare Decisis.

For the same reasons outlined above, reliance

interests weigh in favor of overruling Summerlin. In

determining reliance, this Court traditionally

evaluates any interests of those who have relied on the

precedent, any strain on judicial resources, and the

risk of any societal costs associated with guilty

offenders being set free. See Ramos v. Louisiana, 140

S. Ct. 1390, 1414 (2020) (Kavanaugh, J., concurring in

part).

Correcting Summerlin would affect only the

few death-row inmates sentenced under the

unconstitutional regimes Ring corrected over 20 years

ago. This number is far smaller than it was in 2002,

amounting to (by our count) 46 total individuals as of

2023. And for each state’s handful of affected

defendants, no new guilt-phase trial would be

necessary, as Ring leaves convictions untouched. See

supra Section I.B.3. This minimal effect on a few

states’ court systems does not justify strict adherence

to precedent.

And as explained above, the badly fractured, 54 decision in Summerlin was wrong for a myriad of

reasons, including its failure to account for the Eighth

Amendment backdrop over which the requisite

aggravators ensure that a death sentence is not

unconstitutionally disproportionate, its ignorance of

the ways requiring a jury to find such aggravators

transformed the question into one that would reliably

reflect normative community judgments, and its

contradictory reliance on Teague to discount

considerations

favoring

retroactivity

while

simultaneously relying on a pre-Teague case that

turned on those very considerations.

In the end, Summerlin also overlooked that

death is different. Furman, 408 U.S. at 287 (Brennan,

J., concurring) (“Death is today an unusually severe

punishment, unusual in . . . its finality, and in its

enormity.”). This Court has consistently reiterated

that death requires extra safeguards due to its unique

finality and severity concerns. See Ford v.

Wainwright, 477 U.S. 399, 411 (1986) (plurality

opinion) (“In capital proceedings generally, this Court

has demanded that factfinding procedures aspire to a

heightened standard of reliability. This especial

concern is a natural consequence of the knowledge

that execution is the most irremediable and

unfathomable of penalties; that death is different.”

(cleaned up)); accord Glossip v. Gross, 576 U.S. 863,

909 (2015) (Breyer, J., dissenting). As such, applying

Ring retroactively is consistent with this Court’s

principle

that

death

requires

heightened

constitutional care, which Summerlin (and its

reliance on DeStefano) failed to account for.

Summerlin also continues to undermine the

law’s commitment to uniformity and equal justice,

threatening public confidence in the law. See, e.g.,

Mackey, 401 U.S. at 689 (Harlan, J., concurring)

(explaining that the legal system must “assure a

uniformity of ultimate treatment among prisoners”);

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1623 (2018)

(“[L]ike cases should generally be treated alike.”).

Treatment is not uniform when access to fundamental

fairness turns solely on the fortuity of timing.

Summerlin, 542 U.S. at 364 (Breyer, J., dissenting).

Outside of the capital context, this disparate

treatment may be explained by a need for finality. But

finality hits different in capital proceedings. See supra

Section I.B.3. “[A] death sentence is different in that”

it does not seem “final” until it is undergone by a

prisoner. Summerlin, 542 U.S. at 363.

This lack of uniform treatment undermines

public confidence in the law. The ordinary citizen does

not understand the difference between those on death

row with final judgments and those with direct

appeals still pending. See Summerlin, 542 U.S. at 363

(Breyer, J., dissenting) (“[O]ne individual going to his

death, the other saved, all through the accident of

timing.”). And of course, any arcane differences

between “substantive” and “procedural” rules are even

less likely to inspire confidence—especially when

considering a rule as wrapped up in fundamental

fairness as Ring’s is. Stare decisis, therefore, offers no

reason to hang onto Summerlin’s faults.

II.

Mr.

Jones

Establishes

Strickland

Prejudice By Showing A Reasonable

Probability Of A Different Outcome In A

Constitutional

(Not

Pre-Ring)

Proceeding.

At the very least, this Court should clarify that

Strickland’s prejudice inquiry is whether there is a

reasonable likelihood of a different outcome in a

constitutional sentencing proceeding—not in the preRing unconstitutional regime in which a judge finds

the aggravators required for capital punishment, in

violation of the Sixth Amendment. This is true

regardless whether Ring is retroactively applicable.

Here, Mr. Jones’s sentencing was doubly

unconstitutional. First, as explained above, his

sentencing violated Ring because a judge, and not a

jury, found the aggravators necessary to impose the

death penalty. Second, as the Court of Appeals held

below, his sentencing was unconstitutional for the

additional reason that his counsel’s failure to

investigate and present mitigating evidence deprived

him of effective assistance of counsel. See Williams v.

Taylor, 529 U.S. 362 (2000).

The prejudice inquiry under Strickland v.

Washington “requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” 466 U.S. 668,

687 (1984). Counsel’s deficient performance

prejudiced the defendant if “the decision reached

would reasonably likely have been different absent

the errors.” Id. at 696. In other words, Strickland

requires a counterfactual analysis about the impact of

deficient performance on the sentencing proceeding to

make sure that the deficient performance actually

undermined fundamental fairness.

In cases like this one, a defendant proves

Strickland prejudice by showing a reasonable

probability that the mitigating evidence would prompt

“at least one juror would have struck a different

balance” and recommended a sentence other than

death. Wiggins v. Smith, 539 U.S. 510, 537 (2003).

Requiring Mr. Jones to prove a reasonable

probability of a different result from his sentencing

judge, rather than from Wiggins’s single juror, would

undermine the purpose of Strickland’s prejudice test.

To measure the constitutional implications of

counsel’s deficient performance (the independent

variable), the Court must necessarily isolate it by

controlling for the constitutional implications of other

aspects of the proceedings. Setting this counterfactual

scenario in an already-unconstitutional (pre-Ring)

proceeding impairs the ability to test for the

Strickland error’s constitutional effect.

And it would be downright unfair. Both Ring

and Strickland guarantee Sixth Amendment rights at

the heart of fundamental fairness. Ring, 536 U.S. at

609; Strickland, 466 U.S. at 697–98. So apart from

failing to test for what Strickland’s prejudice

requirement targets, it would also, in effect,

inequitably impose a higher prejudice standard on a

defendant because (and not despite) his sentencing

was already fundamentally unfair for another reason.

Strickland recognized that ineffective assistance of

counsel “asserts the absence of one of the crucial

assurances that the result of the proceeding is

reliable,” such that “the appropriate standard of

prejudice should be somewhat lower.” 466 U.S. at 694

(emphasis added). When, as here, at least two distinct

constitutional errors undermine a proceeding’s

reliability, it hardly makes sense to make the bar for

showing prejudice higher.

Post-Ring developments confirm that Wiggins’s

single-juror standard is appropriate here. For one

thing, only “[t]hirty-eight days after Ring,” the

Arizona legislature amended its capital-sentencing

statute, McGill v. Shinn, 16 F.4th 666, 700 (9th Cir.

2021), so that it “passed constitutional muster,” id. at

709 (Smith, J., concurring). Since then, Arizona has

required that a jury must find any requisite

aggravators, and “shall determine unanimously

whether death is the appropriate sentence.” Ariz. Rev.

Stat. § 13-752(H).

Under such regimes, this Court has recognized

that Wiggins’s single-juror formulation is the correct

test for Strickland prejudice. See, e.g., Andrus v.

Texas, 140 S. Ct. 1875, 1886 (2020) (per curiam)

(citing Wiggins’s “one juror” test); see also Matthews v.

Workman, 577 F.3d 1175, 1190 (10th Cir. 2009)

(Gorsuch, J.) (“In a death penalty case, the relevant

prejudice inquiry is whether there is a reasonable

probability that one juror would have chosen a

sentence other than death.” (citing Wiggins, 539 U.S.

at 537)).

And in fact, lower courts appear to be applying

Wiggins’s single-juror test for Strickland prejudice

even when the defendant was sentenced under the

pre-Ring regime, see, e.g., Correll v. Ryan, 539 F.3d

938, 951–54 (9th Cir. 2008) (citing and applying

Wiggins’s “one juror” formulation and granting

habeas relief), cert. denied, 555 U.S. 1098 (2009), or

concluding that the result would be the same in any

event, as the en banc Ninth Circuit did on remand

after Summerlin, see Summerlin v. Schriro, 427 F.3d

623, 643 (9th Cir. 2005) (en banc) (citing Wiggins’s

“one juror” test and noting “for the purposes of

resolving this issue, we evaluate prejudice in the

context of judge-sentencing,” and “the result is the

same.”).

Ultimately, defendants like Mr. Jones who

were subjected to multiple layers of constitutional

errors should not be penalized with a higher threshold

for proving Strickland prejudice. Two wrongs do not

make a right.

CONCLUSION

For the foregoing reasons, the Court should

correct Summerlin and recognize that Ring must

apply retroactively on collateral review. And here, the

Court should affirm the judgment below.

Respectfully submitted,