Reply Brief — Schriro v. Summerlin

‘Me

No. 03-0526 —siprome CUS |

In The | APR OI zo

Supreme Court of the Unitr wae

DORA B. SCHRIRO, DIRECTOR, ARIZONA

DEPARTMENT OF CORRECTIONS,

Petitioner,

vV.

WARREN-WESLEY SUMMERLIN,

Respondent.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

REPLY BRIEF ON THE MERITS

S

TERRY GODDARD

Attorney General

Mary R. O’GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

JOHN PRESSLEY TODD*

ROBERT L. ELLMAN

Assistant Attorneys General

1275 West Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-4686

*Counsel of Record Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO) (800) 225-6964

OR CALL COLLECT (402) 342 2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................cccccceeeseeeeee li, ili, iv, V

SUMMARY OF ARGUMENT ...........................ccceeeeeeeee 1

EEE SALE, Sane ae ae 2

I. Regardless whether this Court based its

I.

Il.

decisions in Walton, Apprendi, or Ring on a

misconception or misapplication of state lew,

those cases announce federal constitutional

rules applicable beyond the confines of any one

Ring announced a new constitutional rule .......

Ring did not announce a substantive rule.........

IV. The new rule announced in Ring does not

significantly enhance accuracy in finding ag-

gravating circumstances or alter bedrock prin-

ciples essential to fairness.....................:00:000000

A. Having a judge, rather than a jury, deter-

mine aggravating circumstances did not

seriously diminish the accuracy of those

sissies

B. The Ring decision did not alter bedrock

principles of procedure.....................:.00000000

EE siecniniiniiieninenienintiienniadensnntceniitennnienennne

12

il

TABLE OF AUTHORITIES

Page

CASES

Adams v. Illinois, 405 U.S. 278 (1972)... eeeeee eee 19

Allen v. Hardy, 478 U.S. 255 (1986) ........... cc eeeeeeeeeeeeeeeeeees 15

Almendarez-Torres v. United States, 523 U.S. 224

(DBP nccccccccsecessensssvicsiscnsepeciunseasmaniinaaniaaaaanne 4,5

Apodaca v. Oregon, 406 U.S. 404 (1972) oo... cece 17

Apprendi v. New Jersey, 530 U.S. 466 (2000)........... passim

Arizona v. Rumsey, 467 U.S. 203 (1984) ........0.. ce eeeee eee 3

Baldwin v. New York, 399 U.S. 66 (1970) ........... eee 14

Baldwin v. Reese, 541 U.S. __, 124 S.Ct. 1347

{of ¥ & — ae 1,14

Ballew v. Georgia, 435 U.S. 223 (1978)........... cece eee ee 16

Bottoson v. Moore, 833 So.2d 693 (Fla. 2002)..................0. 6

Bousley v. United States, 523 U.S. 614 (1998) ........000.00.... 9

Brown v. Louisiana, 447 U.S. 323 (1980)...............cccce cece 15

Brown v. State, 67 P.3d 917 (Okla.Crim.App. 2003)........... 6

Bunkley v. Florida, 538 U.S. 835 (2003) ................ cee 9

Burch v. Louisiana, 441 U.S. 130 (1979)... 15

Cabana v. Bullock, 474 U.S. 376 (1986) ..0000....cccccccceees 8

Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002)................ 6

Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) ...................... 2

Clemons v. Mississippi, 494 U.S. 738 (1990) ...................... 8

Coleman v. Alabama, 399 U.S. 1 (1968) ..............cccccceun. 19

Colwell v. State, 59 P.3d 463 (Nev. 2003) ............ees 15

Curtis v. United States, 294 F.3d 841 (7th Cir. 2002)......... 8

il

TABLE OF AUTHORITIES — Continued

Page

Daniel v. Louisiana, 420 U.S. 31 (1975).........00000000..... 15, 16

Davis v. United States, 417 U.S. 333 (1974)... 9

DeStefano v. Woods, 392 U.S. 631 (1968) ........000000..... 14, 16

Dobbert v. Florida, 432 U.S. 282 (1977)......................06. 11

Duncan v. Louisiana, 391 U.S. 145 (1968)..........0.0........... 14

Fiore v. White, 531 U.S. 225 (2001) «0.0.0.0... ceeeeeeees 9

Furman v. Georgia, 408 U.S. 238 (1972)..................... 6, 7,8

Gideon v. Wainwright, 372 U.S. 335 (1963)...................... 19

Gosa v. Mayden, 413 U.S. 665 (1972)... 15

Graham v. Collins, 506 U.S. 461 (1993) ....000.0..n. 6,13

Hankerson v. North Carolina, 432 U.S. 233 (1977).......... 14

Head v. Hill, 587 S.E.2d 613 (Ga. 2003).....................00. 6

Hildwin v. Florida, 490 U.S. 638 (1989)......................ccccces. 8

Lewis v. Jeffers, 497 U.S. 764 (1990) ..........0 ..ccceceeeeees 3

Liteky v. United States, 510 U.S. 540 (1994)..........00000..... 17

Martin v. Ohio, 480 U.S. 228 (1987)..............cccccccceeeeeees 12

McKeiver v. Pennsylvania, 403 U.S. 528 (1971)............... 15

Moore v. Kinney, 320 F.3d 767 (8th Cir. 2003).................... 6

O'Dell v. Netherland, 521 U.S. 151 (1997)... 6,8

Poland v. Arizona, 476 U.S. 147 (1986)... 3,8

Proffitt v. Florida, 428 U.S. 242 (1976) .......................0. 7,8

Ring v. Arizona, 536 U.S. 584 (2002)....................04. passim

Roberts v. Russell, 392 U.S. 293 (1968) .................ccce 14

Sawyer v. Smith, 497 U.S. 227 (1990)................... 13, 18, 19

iv

TABLE OF AUTHORITIES — Continued

Page

Spaziano v. Florida, 468 U.S. 447 (1984)... 8

State v. Lotter, 664 N.W.2d 892 (Neb. 2003)....................... 6

State v. Ring, 25 P.3d 1139 (Ariz. 2001)......................... 3,5

State v. Smith, 665 P.2d 995 (Ariz. 1983) ..............eee 4

State v. Summerlin, 675 P.2d 686 (Ariz. 1983)................... 8

State v. Towery, 64 P.3d 828 (Ariz. 2003).......... 6, 12, 15, 18

Taylor v. Louisiana, 419 U.S. 522 (1975) ....................... 16

Teague v. Lane, 489 U.S. 288 (1989)...................... passim

Tumey v. Ohio, 273 U.S. 510 (1927)....................cceceeeeeeeees 17

Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2008)..........6, 14

Tyler v. Cain, 533 U.S. 656 (2001).........................cceceeeeneees 13

United States v. Gaudin, 515 U.S. 506 (1995)............ 11, 18

United States v. Shunk, 113 F.3d 31 (5th Cir. 1997) ........ 18

Walton v. Arizona, 497 U.S. 639 (1990)............00.00.... passim

Williams v. Florida, 399 U.S. 78 (1970) ....2..............cccc00. 14

Williams v. New York, 337 U.S. 241 (1949)... 7

Williams v. Taylor, 529 U.S. 362 (2000) ............................ 19

Williams v. United States, 401 U.S. 646 (1971)................ 14

Woodson v. North Carolina, 428 U.S. 280 (1976)................ 7

CONSTITUTIONAL PROVISIONS

FF ces passim

I I lel 15

TABLE OF AUTHORITIES - Continued

Page

STATUTES

a a ia ieetiei tae tate cacelaitatiliasiaesit 11

a 9

ARIZ. REV. STAT. ANN. § 13-703(B)..................cccccceeeeeeeeeeeeeees 4

ArIZ. Rev. Stat. ANN. § 13-703(C) (1973)................cccccceee 16

(Ue 9

OTHER AUTHORITIES

Robert Greenberger, Death-Penalty Law Backfires,

WALL STREET JOURNAL, Aug. 5, 2003, at A4, col. 1........ 18

Jim Walsh, Jurors Dish Out Death in Arizona.

Sentencing Rate Up Since Judges Lost Say, ARI-

ZONA REPUBLIC, Nov. 12, 2003, at Al, col. 3 .................. 18

1

SUMMARY OF ARGUMENT

This Court granted certiorari to decide two questions:

(1) whether the Ninth Circuit erred in holding that the new

rule announced in Ring v. Arizona, 536 U.S. 584 (2002), is

substantive, and (2) whether the Ninth Circuit erred in

holding that the rule, if procedural, falls within the water-

shed exception to the general rule of non-retroactivity set

forth in Teague v. Lane, 489 U.S. 288 (1989).

Summerlin offers not two arguments, but four. His

first two arguments attempt to avoid, rather than address,

the two questions this Court accepted for review. Depart-

ing from the Ninth Circuit’s reasoning, Summerlin first

seeks to preserve the Ninth Circuit’s judgment on the

ground that this Court’s decisions in Walton v. Arizona,

497 U.S. 639 (1990), and Ring concerned only a misinter-

pretation and correction of Arizona law. He then argues

derivatively that Ring did not announce a new rule of

constitutional law and therefore falls outside this Court’s

general rule against retroactive application. Summerlin’s

third and fourth arguments address the two questions on

which this Court granted certiorari.

This Court should summarily reject Summerlin’s first two

arguments because, regardless whether Walton was based on

a misinterpretation of Arizona law (it was not), Walton an-

nounced a Sixth Amendment rule applicable to every state

that has a capital punishment statute. Ring similarly an-

nounced a Sixth Amendment rule applicable nationwide, and

that ruling directly overruled Walton. Accordingly, Summer-

lin’s first two arguments necessarily fail.’

* This Court may also reject Summerlin’s first argument (that Ring

merely corrected a misinterpretation of Arizona law) as waived because

he did not make it in opposing the petition for writ of certiorari, and he

made the argument only tangentially below (Summerlin’s Ninth Circuit

Brief, filed 11/12/2002, at 7). See Baldwin v. Reese, 541 U.S. __, 124

S. Ct. 1347, 1352 (2004) (“Under this court’s Rule 15.2, ‘a nonjurisdic-

tional argument not raised in a respondent's brief in opposition to a

petition for a writ of certiorari may be deemed waived.’”) (quoting

(Continued on following page)

2

Although addressing the issues accepted for review,

Summerlin’s third and fourth arguments are unpersua-

sive. The Ring rule is procedural because it did not rein-

‘terpret or redefine the scope of illegal conduct or circum-

stances that make a murder defendant eligible for a death

sentence. The Ring rule does not qualify for retroactive

application under Teague because it does not implicate the

accuracy or fairness of capital sentencing proceedings.

Ring did not change what is to be decided, but only who

decides — a fair and impartial judge, or a fair and impar-

tial jury.

Ring extended the rule announced in Apprendi v. New

Jersey, 530 U.S. 466 (2000), to capital cases. State and

federal courts have uniformly declined to apply the Apprendi

rule retroactively, and there is no reasoned basis for distin-

guishing Apprendi and Ring for purposes of the Teague

retroactivity analysis. Because the Apprendi/ Ring rule does

not implicate the fundamental fairness or accuracy of sen-

tencing proceedings, it lacks sufficient ameliorative value to

justify the burdens that its retroactive application would

impose on our state and federal court systems.

ARGUMENT

I. Regardless whether this Court_based its deci-

sions in Walton, Apprendi, or Ring on a miscon-

ception or misapplication of state law, those

cases announce federal constitutional rules ap-

plicable beyond the confines of any one state.

To avoid Teague’s general prohibition against retroac-

tive application of new constitutional rules, Summerlin

has developed a novel argument that Ring is not a new

constitutional rule, but rather a correction of a “miscon-

ception” in Walton that “in Arizona a prerequisite to a

Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n.13 (1996)) (internal quota-

tion marks omitted).

3

death sentence was a jury conviction for capital murder.”

(Resp’t Br. at 21.) Summerlin posits that Ring did not

overrule Walton for the purpose of resolving an irreconcil-

able conflict between the Sixth Amendment holding in

that case and the reasoning of Apprendi, but rather to

correct the Court’s misinterpretation of Arizona substan-

tive law in light of the Arizona Supreme Court’s decision in

State v. Ring (Ring I), 25 P.3d 1139 (Ariz. 2001).

Regardless whether this Court based its decision in

Walton on a misinterpretation or misapplication of state law,

Walton announced a Sixth Amendment rule applicable

nationwide. Regardless whether Ring interpreted or re-

interpreted state law, Ring similarly announced a Sixth

Amendment rule applicable nationwide, and that ruling

directly overruled Walton. See Ring, 536 U.S. at 589, 596,

609 (the reasoning of Apprendi is “irreconcilable” with the

holding of Walton). The only relevant inquiry is whether

Ring announced a new constitutional rule. It undeniably did.

Furthermore, Summerlin errs in asserting that

Walton rests on this Court’s misinterpretation of Arizona

law. Prior to Walton, this Court understood that under

Arizona law, a convicted first-degree murderer was “statu-

torily barred” from a death sentence unless a trial court

found an aggravating circumstance. See Arizona v. Rum-

sey, 467 U.S. 203, 206 (1984) (holding that the trial judge’s

failure to find an aggravating circumstance at the original

sentencing was an acquittal of the death penalty); Poland

v. Arizona, 476 U.S. 147, 156 (1986) (noting that a judge

must find “some aggravating circumstance before the

death penalty may be imposed”); Lewis v. Jeffers, 497 U.S.

764, 774 (1990) (decided the same day as Walton and

noting that aggravating circumstances make a defendant

“eligible” for the death penalty).

In Walton, the petitioner unsuccessfully argued that

Arizona’s aggravating circumstances were “elements of the

offense” and, as such, had to be determined by a jury. 497

U.S. at 648. The Walton majority and the dissent dis-

agreed whether aggravating circumstances should be

treated as elements or sentencing factors. Compare

4

Walton, 497 U.S. at 647-49, with 497 U.S. at 709 (Stevens,

J., dissenting). Neither the majority nor the dissent,

however, misunderstood the fact that an Arizona court

could not issue a death sentence on the basis of a first-

degree murder verdict alone. Walton characterized the

determination of aggravating circumstances as “prerequi-

site to imposition of [a death] sentence,” and “the specific

findings authorizing the imposition” of a death sentence.

Id. at 647-48 (emphasis added). See also id. at 645 (noting

that “a jury convicted Walton of first degree murder,” and

“(tlhe trial judge then conducted the separate sentencing

hearing required by [A.R.S.] § 13-703(B)”) (emphasis

added).

This Court’s understanding of Arizona law mirrored

that of the Arizona Supreme Court at the time. See, e.g.,

State v. Smith, 665 P.2d 995, 1000 (Ariz. 1983) (“While the

trial court made various findings of fact pursuant to

[Arizona’s capital sentencing] statute, including a finding

that this homicide was committed for pecuniary gain, none

of these findings were elements of the crime of which

Smith stands convicted.”) (emphasis added). Summerlin’s

argument that this Couit misinterpreted Arizona law in

Walton necessarily fails because the Arizona Supreme

Court’s interpretation was authoritative and identical.

In Apprendi, this Court held that “lo]ther than the fact

of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. at 490. Citing Walton, the majority distinguished

state capital sentencing statutes that permitted judges to

find specific aggravating circumstances before imposing a

death sentence, based on the belief that under such stat-

utes, “once a jury has found the defendant guilty of all the

elements of an offense which carries as its maximum

penalty the sentence of death, it may be left to the judge to

decide whether that maximum penalty, rather than a lesser

one, ought to be imposed.... ” Jd. at 497 (quoting Almen-

darez-Torres v. United States, 523 U.S. 224, 257 n.2 (1998)

(Scalia, J., dissenting)). The Apprendi dissenters rejected

the distinction, arguing that absent the finding of the

5

aggravating circumstance, “the maximum sentence to

which the defendant is exposed is life imprisonment, and

not the death penalty.” Jd. at 538. In Ring I, 25 P.3d 1139

at 43, the Arizona Supreme Court provided a “further

explication” of the “practical operation of Arizona’s death

penalty scheme” and agreed with the Apprendi dissent’s

description of Arizona’s procedure.

Contrary to Summerlin’s argument, the Arizona

Supreme Court’s explication in Ring I does not establish

that this Court misunderstood Arizona’s capital sentencing

statute in deciding Walton. In Ring I, the Arizona Supreme

Court explained that under Arizona law, “a defendant

cannot be put to death solely on the basis of a jury’s

verdict, regardless of the jury’s factual findings,” and “the

death sentence becomes possible only after the trial judge

makes a factual finding that at least one aggravating

factor is present.” 25 P.3d 1139, 9 42. The Arizona Su-

preme Court’s statement did not refute, or even address,

any statement in Walton. Rather, it refuted the Apprendi

majority’s statement — which would otherwise have served

to distinguish Walton - that juries in capital cases had

“found the defendant guilty of all the elements of an

offense which carries as its maximum penalty the sentence

of death.” Apprendi, 530 U.S. at 497 (quoting Almendarez-

Torres, 523 U.S. at 257 n.2 (Scalia, J., dissenting)).

Apprendi created a conflict between capital and non-

capital jurisprudence, and this Court resolved that conflict

by recognizing in Ring that, under Apprendi’s analysis,

aggravating circumstances were the “functional equiva-

lent” of elements of an offense for purposes of the Sixth

Amendment jury trial guarantee. Ring, 536 U.S. at 589,

596. Consequently, the jury trial guarantee now applies to

the finding of aggravating circumstances: not because this

Court’s understanding of Arizona’s statutes has changed,

but because its view of what constitutes an element for

Sixth Amendment purposes has changed.

6

II. Ring announced a new constitutional rule.

Summerlin contends that Teague “is altogether

inapposite” because Ring did not announce a new rule of

constitutional law. (Resp’t Br. at 16.) The Ninth Circuit

correctly rejected this contention, stating “Summerlin’s

argument fails because there is no doubt that Ring an-

nounced a new rule as that term is construed for Teague

purposes.” (Cert. Pet. App. A-43.) In fact, every other court

to address this issue has concluded that Ring announced a

new constitutional rule of criminal procedure. See Turner

v. Crosby, 339 F.3d 1247, 1284 (11th Cir. 2003); Moore v.

Kinney, 320 F.3d 767, 771 n.3 (8th Cir. 2003); Cannon v.

Mullin, 297 F.3d 989, 994 (10th Cir. 2002); State v. Towery,

(Cert. Pet. App. B-19, ] 9); Head v. Hill, 587 S.E.2d 613,

619 (Ga. 2003); State v. Lotter, 664 N.W.2d 892, 904-05

(Neb. 2003); Brown v. State, 67 P.3d 917, 918 (Okla.Crim.

App. 2003); Bottoson v. Moore, 833 So.2d 693, 711 (Fla.

2002) (Shaw, J., concurring).

Because Ring directly overruled controlling precedent,

it necessarily established a new rule. Graham v. Collins,

506 U.S. 461, 467 (1993); see also O’Dell v. Netherland, 521

U.S. 151, 156 (1997) (if a holding breaks new ground, was

not dictated by precedent, or imposes new obligations on a

government, it is a “new” rule for Teague purposes). Sum-

merlin nevertheless contends that Ring did not announce a

new rule because it merely applied a pre-existing rule to a

new factual situation. He argues that Walton was an

anomaly corrected by Ring, because by 1791, “‘the jury’s

role in finding facts that would determine a homicide

defendant’s eligibility for capital punishment was particu-

larly well-established.’” (Resp’t Br. at 17.)

It is misleading to speak of “the jury’s role” in finding

facts that rendered a homicide defendant “eligible” for

capital punishment in 1791. It superimposes an inapplica-

ble post-Furman’® concept — death eligibility based upon

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

7

objective, narrowing factors — onto a legal system that

knew no such paradigm. In 1791, a murder conviction

resulted in a death sentence as a matter of law, without

discretion to impose a lesser sentence for any reason,

much less upon consideration of objective “eligibility”

determinations by the judge or the jury. Woodson v. North

Carolina, 428 U.S. 280, 289 (1976) (plurality opinion).

Summerlin also states that “this Court has never held

that, absent the consent of the accused, the Constitution

permits a judge, rather than a jury, to find the facts that

differentiate capital murder from murder simpliciter.”

(Resp’t Br. at 21.) “Capital murder” and “murder simplic-

iter” are not terms found in Arizona statutes. Rather, they

are this Court’s analytical shorthand for differentiating

the defendant’s status following the jury verdict in Ring

(eligible to receive a life sentence, i.e., murder simpliciter)

from his status after the State proved an aggravating

circumstance (eligible to receive a death sentence, i.e.,

capital murder). Given the artificial construct of the terms

“capital murder” and “murder simpliciter” as they are used

in Ring, there is no significance to the fact that this Court

has never permitted a judge to determine facts that

differentiate them.

To the extent Summerlin is arguing that until Furman

the Constitution prohibited a judge from sentencing a

convicted murderer to death based on facts not heard by

the jurors, he is wrong. See Williams v. New York, 337 U.S.

241, 242-43 (1949) (upholding capital sentence where,

notwithstanding a jury recommendation of a life sentence,

trial court imposed death based on trial evidence and

“additional information obtained through the court’s

‘Probation Department and through other sources’ ”).

When Summerlin murdered Brenna Bailey in 1981,

this Court did not recognize a constitutional requirement

for jury sentencing in capital cases. To the contrary, this

Court had previously upheld judicial sentencing in capital

cases and had noted that judicial sentencing “should lead,

if anything, to even greater consistency.” Proffitt v. Flor-

ida, 428 U.S. 242, 252 (1976). The Arizona Supreme Court

8

relied on Proffitt in rejecting Summerlin’s claim in his

direct appeal. State v. Summerlin, 675 P.2d 686, 695 (Ariz.

1983). That reliance was not objectively unreasonable. See

O'Dell, 521 U.S. at 156.

It was not surprising that the Walton Court, relying

-on a long line of post-Furman decisions in addition to

Proffitt,’ rejected the idea that aggravating circumstances

must be proved to the jury as elements of first-degree

murder before imposing a death sentence. Walton, 497

U.S. at 648. Walton was not an aberration resulting from

a misinterpretation of Arizona law; it was a logical appli-

cation of well-settled case law. Ring, in contrast, departed

from that line of cases and directly overruled controlling

precedent. Thus, Ring is a new constitutional rule.

III. Ring did not announce a substantive rule.

Addressing the questions presented for review, Sum-

merlin first argues that Ring announced a substantive

rule. His argument fails because Ring, like Apprendi, did

not alter the scope of criminal conduct or aggravating

circumstances that make a defendant eligible for a death

sentence. As the Seventh Circuit Court of Appeals suc-

cinctly stated in rejecting the corollary Apprendi retroac-

tivity argument in Curtis v. United States, 294 F.3d 841,

843 (7th Cir. 2002):

Curtis and Sax contend that Apprendi is sub-

stantive rather than procedural. Yet Apprendi is

about nothing but procedure — who decides a

given question (judge versus jury) and under

what standard (preponderance versus reasonable

doubt). Apprendi does not alter which facts have

what legal significance, let alone suggest that

conspiring to distribute marijuana is no longer a

* Spaziano v. Florida, 468 U.S. 447 (1984); Cabana v. Bullock, 474

U.S. 376 (1986); Poland, 476 U.S. 147; Hildwin v. Florida, 490 U.S. 638

(1989) (per curiam); Clemons v. Mississippi, 494 U.S. 738 (1990).

9

federal crime unless the jury finds that some

particular quantity has been sold.

Ring extended the Apprendi rule to capital cases, and the

same reasoning applies to the question of who decides

(judge versus jury) Whether aggravating circumstances

have been established beyond a reasonable doubt. “Ap-

prendi repeatedly instructs in that context that the char-

acterization of a fact or circumstance as an ‘element’ or a

‘sentencing factor’ is not determinative of the question

‘who decides,’ judge or jury.” Ring, 536 U.S. at 604-05.

Ring did not alter which facts have legal significance

under Arizona’s substantive first-degree murder statute,

ARIZ. REV. Stat. ANN. § 13-1105, or Arizona’s capital

sentencing statute, ARIZ. REV. STAT. ANN. § 13-703. Before

and after Ring, the State must preve the same facts, under

the same standard of proof, in order to render a defendant

eligible for a death sentence. All that has changed, as most

appellate courts have acknowledged, is who finds those

facts. (See Pet’r Br. at 31) (citing cases holding that Ring

announced a new procedural rule). The rule is quintessen-

tially procedural.

Summerlin notes that Bousley v. United States, 523

U.S. 614 (1998), does not “define the universe” of substan-

tive rules. (See Resp’t Br. at 25.) Bousley however, illus-

trates the difference between substantive and procedural

rules. It demonstrates that a substantive rule interprets

the meaning of a statute to alter the scope of unlawful

conduct. See id. at 620 (substantive decisions hold that a

statute “does not reach certain conduct,” creating the risk

that a defendant “stands convicted of an act that the law

does not make criminal”) (quoting Davis v. United States,

417 U.S. 333, 346 (1974)).

Fiore v. White, 531 U.S. 225 (2001), and Bunkley v.

Florida, 538 U.S. 835 (2003) (per curiam), fail to advance

Summerlin’s argument. Both Fiore and Bunkley involve a

state court interpretation of the scope of restricted conduct

under a state statute. Both cases establish that a state

court interpretation that narrows the scope of a state

statute so that certain conduct is not unlawful is a sub-

stantive change. Applying Bousley, Fiore, and Bunkley to

10

Ring leads to the conclusion that the Ring rule is proce-

dural, rather than substantive, because Ring does not

change what the State must prove for a defendant to be

convicted of a crime or to be eligible for a death sentence.

Summerlin never addresses, much less overcomes, this

distinction.

Summerlin takes issue with Petitioner’s argument

linking retroactivity under Apprendi to retroactivity under

Ring.’ Petitioner’s argument rests on this Court’s state-

ments in Apprendi and Ring, and enjoys the overwhelming

weight of authority. (See Pet’r Br. at 15-16.) Summerlin’s

position rests on an unsupportable distinction between the

question presented in Apprendi (which he concedes is

procedural) and the rule announced therein (which he

claims is substantive). (Resp’t. Br. at 26-27.)

According to Summerlin, this Court answered the

procedural question in Apprendi in a substantive way, by

“determining what constitutes a crime” in the context of

the relevant New Jersey statutes. (Resp’t Br. at 26-27.)

However, this Court did not “determine what constitutes a

crime” under New Jersey law. No one disputed the inter-

pretation, and therefore the scope of the New Jersey

weapons statute or of the New Jersey enhancement

statute. 530 U.S. at 468-69. Rather, this Court addressed

whether the Apprendi defendant had a Sixth Amendment

right to have a jury decide whether the State proved the

facts that subjected the defendant to the greater penalty

under the enhancement statute.

In Ring, this Court resolved the corollary procedural

question with the corollary procedural rule, declaring

that a capital defendant has a Sixth Amendment right to

have a jury determine whether the State proved facts

underlying aggravating circumstances that subjected the

* Summerlin suggests that while Apprendi announced a new rule,

Ring did not. (Resp’t Br. at 19-21.) Summerlin’s amicus curiae, Criminal

Defense Lawyers (“CDL”), however, argues that both Apprendi and

Ring are entitled to retroactive application. (CDL Br. at 5, 10, 18.)

11

defendant to the greater penalty (death). If Apprendi

announced a procedural rule, the extension of that rule to

capital cases in Ring is necessarily procedural as well.

Adopting Summerlin’s conclusion that the rule in Ring,

and derivatively the rule in Apprendi, is substantive

would be wrong and would unsettle a multitude of cases

that have held otherwise.’

Summerlin’s criticism of Petitioner’s reliance on

United States v. Gaudin, 515 U.S. 506 (1995), also fails. In

Gaudin, this Court treated as procedural its holding that

the trial court must submit the question of materiality to a

jury. Id. at 521. Summerlin attempts to distinguish

Gaudin from Ring because in Gaudin, the government

conceded materiality to be an element of the offense, id. at

509, while in Ring, the State opposed the defendant’s

argument that aggravating circumstances were the

functional equivalent of an element of the offense. Ring,

536 U.S. at 604. This distinction is insignificant. For

purposes of the Sixth Amendment analysis, this Court in

Ring treated aggravating circumstances as elements. /d.

at 609.

Summerlin rejects Dobbert v. Florida, 432 U.S. 282

(1977), as irrelevant to the analysis of whether Ring

announced a substantive change to Arizona’s criminal

code. (Pet’r. Br. at 16-17.) Summerlin asserts that the ex

post facto prohibition at issue in Dobbert serves “a vastly

different function than the judicially created doctrine of

non-retroactivity.” (Resp’t Br. at 29.) Summerlin fails,

however, to explain how those functions differ, much less

* Amicus CDL takes the position that this Court need not concern

itself with the effects of such a decision because of other procedural

obstacles that federal habeas corpus petitioners must surmount. (CDL

Br. at 24.) Amicus fails to consider 18 U.S.C. § 2244(b)(2)(A), which

enables habeas petitioners to surmount the retroactivity obstacle by

bringing a successive petition whenever “the claim relies on a new rule

of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” /d.

12

why that difference renders this Court’s pronouncements

on the substantive/procedural distinction in ex post facto

cases irrelevant to retroactivity cases.

Finally, Summerlin refuses to acknowledge the Ari-

zona Supreme Court’s authoritative holding in Towery that

Ring “changed neither the underlying conduct that the

state must prove to establish that a defendant’s crime

warrants death nor the State’s burden of proof; it affected

neither the facts necessary to establish Arizona’s aggravat-

ing factors nor the State’s burden to establish the factors

beyond a reasonable doubt.” (Cert. Pet. App. B-10, { 13.)

The Towery court considered whether “Ring(] refined the

definition of an element of capital offenses, which is

unquestionably a substantive decision,” and concluded it

did not. (Jd. at B-9, 9 11.) The Arizona Supreme Court's

unequivocal conclusion in Towery that Ring did not create

a new offense of capital murder or change the definition of

an element of a capital offense in Arizona is controlling.

See Martin v. Ohio, 480 U.S. 228, 235 (1987) (the Ohio

Supreme Court’s holding that “unlawfulness” is not an

element of the state’s murder statute is an interpretation

of state law that is binding on this Court).

Summerlin cites no case to this Court, other than the

opinion below, holding that a substantive rule results

whenever a court finds that a jury, rather than a judge,

must determine whether a sentence-increasing fact exists.

To the contrary, case law and logic support the conclusion

that Ring announced a new procedural rule.

IV. The new rule announced in Ring does not signif-

icantly enhance accuracy in finding aggravating

circumstances or alter bedrock principles essen-

tial to fairness.

To fall within Teague’s watershed exception to the

general rule of non-retroactivity, a new constitutional rule

of criminal procedure “must meet two requirements:

Infringement of the rule must seriously diminish the

likelihood of obtaining an accurate conviction, and the rule

must alter our understanding of the bedrock procedural

13

elements essential to the fairness of a proceeding.” Tyler v.

Cain, 533 U.S. 656, 665 (2001) (quotation marks and

citations omitted).

Although Summerlin argues that the Ring rule fits

within the watershed exception, he fails to address most of

the analysis in Petitioner’s opening brief or the reasoning

in the supporting case law. Summerlin begins with the

premise that the rule in Ring comes within Teague’s

second exception because Justice O’Connor described (in

dissent) the rule announced in Apprendi as a “watershed

change.” 530 U.S. at 524. Summerlin ignores, however,

Justice O’Connor’s express statement in her Ring dissent

that habeas petitioners “will be barred from taking advan-

tage of today’s holding on federal collateral review.” 536

U.S. at 621.

Summerlin next offers little more than a series of

tangential observations by courts and commentators made

in the context of addressing other constitutional issues.

None of his arguments establishes that the new rule

seriously enhances the accuracy of the proceeding or alters

our understanding of bedrock procedural elements essen-

tial to the fairness of such proceedings.

A. Having a judge, rather than a jury, determine

aggravating circumstances did not seriously

diminish the accuracy of those findings.

A new rule meets the watershed criterion only if it is

“so central” to an accurate determination that without it,

the likelihood of obtaining an accurate result is “seriously

diminished.” Teague, 489 U.S. 288, 313 (1989) (plurality

opinion). Summerlin asserts that jury fact-finding of

aggravating circumstances improves the accuracy of

capital murder trials. (Resp’t Br. at 33). He does not,

however, acknowledge that to satisfy the first part of

Teague’s watershed exception, a new rule must signifi-

cantly or seriously enhance accuracy. See Graham v.

Collins, 506 U.S. 461, 478 (1993); Sawyer v. Smith, 497

U.S. 227, 242 (1990).

14

The Ring rule does not appreciably affect accuracy.

That stands to reason, because this Court adopted the rule

to fulfill a Sixth Amendment requirement, rather than to

correct a defect in the fact-finding process. See Turner v.

Crosby, 339 F.3d 1247, 1286 (11th Cir. 2003) (“Ring is

based on the Sixth Amendment right to a jury trial and

not on a perceived, much less documented, need to en-

hance accuracy or fairness of the fact-finding in a capital

sentencing context.”). The jury trial right acts as a shield

against an overzealous prosecutor and a compliant judge,

not as a vehicle for ensuring accuracy in fact finding. See

Duncan v. Louisiana, 391 U.S. 145, 156, 158 (1968). The

primary purpose of the Sixth Amendment right is thus to

“prevent the possibility of oppression by the Government;

the jury interposes between the accused and his accuser

the judgment of laymen who ... are less likely to function

or appear as but another arm of the Government that has

proceeded against him.” Baldwin v. New York, 399 U.S. 66,

72 (1970); see also Williams v. Florida, 399 U.S. 78, 100

(1970) (jury’s purpose is “to prevent oppression by the

Government”). .

In DeStefano v. Woods, 392 U.S. 631, 633 (1968), this

Court expressly declined to retroactively apply the newly-

incorporated Sixth Amendment jury trial guarantee set

forth in Duncan. Summerlin argues, however, that this

Court’s retroactivity test changed after DeStefano, and he

speculates that the DeStefano court might have applied

Duncan retroactively had it applied the Teague test. That

speculation is ill-founded because accuracy was a central

retroactivity concern prior to Teague. See Roberts v. Rus-

sell, 392 U.S. 293, 294 (1968) (per curiam) (citing cases

holding that new rules apply retroactively to correct

“serious flaws” in the fact-finding process). Under this

Court’s pre-Teague jurisprudence, when a new rule raised

serious questions about the accuracy of the proceeding, it

was given full retroactive effect. Hankerson v. North

Carolina, 432 U.S. 233, 243 (1977); Williams v. United

States, 401 U.S. 646, 653 (1971) (plurality opinion). Sum-

merlin’s argument ignores the analytical overlap between

the pre- and post-7eague retroactivity tests, and it ignores

15

the fact that this Court has consistently declined to give

retroactive effect to newly-announced constitutional rules

of criminal procedure based on the jury trial guarantee.

See, e.g., Gosa v. Mayden, 413 U.S. 665, 676 (1972) (plural-

ity opinion); Daniel v. Louisiana, 420 U.S. 31, 32 (1975)

(per curiam); Allen v. Hardy, 478 U.S. 255, 257-59 (1986)

(per curiam).

Summerlin and his amici do not address this long,

unbroken line of controlling authority, but instead focus on

one pre-7Jeague case as authority for Ring to be applied

retroactively: Brown v. Louisiana, 447 U.S. 323 (1980).

(Resp’t Br. at 40-41; CDL Br. at 3-4, 23; SCHR Br. at 15.)

Their reliance on Brown is misplaced because Brown is

part of this line of authority in which this Court has

declined to apply retroactively the Sixth Amendment jury

trial guarantee. In Burch v. Louisiana, 441 U.S. 130

(1979), this Court held that conviction of a nonpetty

criminal offense by a non-unanimous six-person jury

violated the Sixth and Fourteenth Amendments. In

Brown, this Court applied Burch to a case that was pend-

ing on direct appeal when Burch was decided. See Brown,

447 U.S. at 337 (Justice Powell, with whom Justice Ste-

vens joined, concurring in the judgment). Brown does not

stand for the proposition that an incremental change to

Sixth Amendment jury trial rights warrants retroactive

application to cases on collateral review.

Although Summerlin argues that jury determination

of aggravating circumstances is “more accurate,” case law

is to the contrary. “Although the function of the jury is to

find facts, that body is not necessarily or even probably

better at the job than the conscientious judge.” McKeiver v.

Pennsylvania, 403 U.S. 528, 551 (1971) (White, J. concur-

ring) (emphasis added). “[O]ne cannot say that in our legal

system the jury is a necessary component of accurate

factfinding.” Id. at 543 (plurality opinion); see also Towery,

(Cert. Pet. App. B-12, 9 19) (“We have no reason to believe

that impartial juries will reach more accurate conclusions

regarding the presence of aggravating circumstances than

did an impartial judge.”); Colwell v. State, 59 P.3d 463, 473

(Nev. 2003) (“[T]he likelihood of an accurate sentence was

16

not seriously diminished simply because a three-judge

panel, rather than a jury, found the aggravating circum-

stances that supported Colwell’s death sentence.”).

With the exception of Ballew v. Georgia, 435 U.S. 223

(1978), all of the cases Summerlin discusses address only

the jury’s efficacy in shielding defendants from an oppres-

sive government or overly zealous prosecutor, a function

unrelated to fact-finding accuracy. Summerlin attempts,

in a footnote, to distinguish between the jury’s sentencing

function as the “conscience of the community,” which he

concedes is irrelevant to accuracy, and the jury’s ability to

“apply the common sense of the community to the facts,”

which he claims increases accuracy of factfinding. (Resp't.

Br. at 37, n.9). But the case he cites to draw the distinction,

Taylor v. Louisiana, 419 U.S. 522, 527 (1975), concerns the

fair cross-section requirement, and says nothing about the

fact-finding process, or how jury involvement enhances

accuracy. Moreover, this Court declined to apply Taylor

retroactively. Daniel, 420 U.S. at 32 (citing DeStefano).

Summerlin’s quotes from a portion of the Ballew

opinion are from two Justices only. (Resp’t Br. at 34.) The

narrow holding in Ballew is that the Sixth Amendment

jury trial guarantee requires a jury of at least six people.

Ballew did not address whether juries were more accurate

fact-finders than judges. Furthermore, although the

statements Summerlin quotes from Ballew may be rele-

vant to the accuracy question, they do not carry the Ring

rule over the “seriously enhances accuracy” threshold.

Summerlin also advances the notion that juries are

more accurate fact finders than judges because jurors are

not exposed to inadmissible evidence. (Resp’t. Br. at 36.)

However, at the time of Summerlin’s trial and sentencing,

the admissibility evidence of aggravating circumstances

was governed — as it is today — by the rules of evidence at

criminal trials. See former ARIZ. Rev. Stat. ANN. § 13-

703(C) (1973). This Court presumes that judges follow the

law and disregard inadmissible evidence. Walton, 497 U.S.

at 653.

a

17

To the extent that a judge's bias, like a juror’s bias,

corrupts the fact-finding process, the law provides proce-

dures for removing a biased or otherwise incompetent judge,

and for reversing convictions and/or sentences in cases where

such judges have presided. See, e.g., Liteky v. United States,

510 U.S. 540, 544 (1994); Tumey v. Ohio, 273 U.S. 510, 522

(1927). Thus, this Court should disregard Summerlin’s

irrelevant references to trial Judge Philip Marquardt's

alleged marijuana use during his sentencing proceedings.”

Summerlin offers his unsupported observation that

jury fact finding is more accurate because a jury’s “unani-

mous decision more closely reflects public opinion regarding

the gravity of the defendant’s failure to ‘conform’ to ‘socie-

tal standards.’” (Resp’t Br. at 36.) However, the Constitu-

tion does not require unanimity by a 12-person jury.

Apodaca v. Oregon, 406 U.S. 404, 412 (1972). Moreover,

public opinion is unrelated to factual accuracy.

Summerlin also offers amicus Welsh White’s observa-

tion that “historically,” juries “bring the application of

capital punishment for homicide more nearly in line with

community perceptions relating to just deserts.” (Resp’t

Br. at 37.) Summerlin fails to recognize the distinction

between jury sentencing, a process in which community

perceptions might arguably apply, and jury determination

of aggravating circumstances, which is indistinguishable

from any other proof of facts in criminal trials.’ Summerlin

* Summerlin’s pending habeas proceeding includes a separate

claim relating to Judge Marquardt’s alleged drug impairment. (Cert.

Pet. App. A-16.) Contrary to the Ninth Circuit's implication in the

opinion below, the State did not concede that Judge Marquardt used

marijuana while deliberating. In state post-conviction proceedings, a

different superior court judge, as well as the Arizona Supreme Court,

rejected Summerlin’s claim that Judge Marquardt’s drug problems

affected the conviction or sentence. Notably, Summerlin does not argue

that Judge Marquardt’s findings relating to the two aggravating

circumstances underlying his death sentence were inaccurate.

” Even if the “conscience of the community” were relevant to the

accuracy prong of the Teague analysis, and even if Ring implicated

(Continued on following page)

18

has not established that having a fair and impartial jury,

rather than a fair and impartial judge, determine aggra-

vating circumstances significantly or seriously improves

accuracy in the sentencing process.

B. The Ring decision did not alter bedrock

principles of procedure.

The second part of the Teague watershed exception

applies to new rules that “alter our understanding of the

bedrock procedural elements essential to the fairness of a

proceeding,” and implement procedures “implicit in the

concept of ordered liberty.” Sawyer, 497 U.S. at 242. In

rejecting the argument that the rule announced in Ring

implicates the watershed exception, the Arizona Supreme

Court noted that “[o]ne can easily envision a system of

‘ordered liberty’ in which certain elements of a crime can

or must be proved to a judge, not to the jury.” Towery,

(Cert. Pet. App. B-13, at 9 21) (quoting United States v.

Shunk, 113 F.3d 31, 37 (5th Cir. 1997) (holding that

Gaudin does not apply retroactively)). Summerlin offers

little to refute Petitioner’s argument that the Ap-

prendi/Ring rule did not alter our understanding of

bedrock procedural elements necessary to ensure a fair

proceeding.

“The principle announced in Teague serves to ensure

that gradual developments in the law over which reason-

able jurists may disagree are not later used to upset the

anything more than judicial finding of aggravating circumstances, jury

sentencing may not provide the type of buffer between the prosecution

and the accused that Summerlin presumes. In Arizona, for example,

following a recent change to jury sentencing in capital cases, the

percentage of cases in which the death penalty has been imposed has

dramatically increased. See Jim Walsh, Jurors Dish Out Death in

Arizona. Sentencing Rate Up Since Judges Lost Say, ARIZONA REPUBLIC,

Nov. 12, 2003, at Al; Robert Greenberger, Death-Penalty Law Backfires,

WALL STREET JOURNAL, Aug. 6, 2003, at A4.

19

finality of state convictions valid when entered.” Sawyer,

497 U.S. at 234. The new rule at issue in Sawyer was

“designed as an enhancement of the accuracy of capital

sentencing,” but it was an incremental change and thus

not an “absolute prerequisite to fundamental fairness,” so

this Court declined to apply it retroactively. Id. at 244

(quoting Teague, 489 U.S. at 314). The rule in Apprendi

and Ring, like the rule in Sawyer, incrementally advanced

a constitutional principle, extending the Sixth Amendment

jury trial guarantee by applying it to facts that functioned

as elements by increasing the maximum sentencing range.

This Court should similarly decline to retroactively apply

the Apprendi/ Ring rule.

Summerlin attempts to analogize the rule in Ring to

that announced in Gideon v. Wainwright, 372 U.S. 335,

345 (1963). Gideon introduced a fundamental and sweep-

ing change by recognizing, for the first time, the constitu-

tional right to counsel, a change acknowledged to fit

within what is now termed the Teague watershed excep-

tion. Incremental extensions of the Gideon rule, however,

have not been applied retroactively. For example, in

Adams uv. Illinois, 405 U.S. 278 (1972), the petitioner

unsuccessfully argued for retroactive application of the

rule announced in Coleman v. Alabama, 399 U.S. 1 (1968),

where this Court incrementally extended the Gideon right

to counsel to the preliminary hearing stage of criminal

proceedings. Summerlin must overcome not only the fact

that this Court declined to apply the seminal Sixth

Amendment case — Duncan - retroactively, but also that

Apprendi/Ring is at most an incremental extension of

Duncan.

Teague strikes the necessary balance between the

need for finality in the criminal justice system and a

defendant’s interest in applying new procedural rules

retroactively. Because the Ring rule has no appreciable

effect on accuracy and does not alter our understanding of

20

any bedrock procedural principle, it should not apply

retroactively to cases on collateral review. .

CONCLUSION

Petitioner respectfully asks this Court to (1) hold that

the rule announced in Ring does not apply to cases on

collateral review, and (2) reverse the Ninth Circuit's

decision insofar as it vacates Summerlin’s death sentence.

Respectfully submitted,

TERRY GODDARD

Attorney General

Mary R. O’GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

*JOHN PRESSLEY TODD

ROBERT L. ELLMAN

Assistant Attorney General

*(Counsel of Record)

Attorneys for Petitioner