Opposition Brief — Ryan v. Styers (No. 08-1350)

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No, 08-1350

IN THE

SUPREME COURT OF THE UNITED STATES

DORA SCHRIRO, Director,

ARIZONA DEPARTMENT OF CORRECTIONS, ET AL.,

Petitioners,

VS.

JAMES LYNN STYERS,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION TO

PETITIONER’S WRIT OF CERTIORARI

*Cary Sandman [AZ SB #004779]

WATERFALL, ECONOMIDIS, CALDWELL,

HANSHAW & VILLAMANA, P.C,

5210 E. Williams Circle, Suite 800

Tucson, AZ 85711

($20)790-5828/(520)745-1279 (facsimile)

Amy Beth Krauss [AZ SB #013916]

P.O. Box 65126

Tucson, AZ 85728

($20) 400-6170

*Counsel of Record

CAPITAL CASE

Respondent’s Counter Statement of Question Presented

On direct appeal of Styers’ death sentence, the Arizona Supreme Court struck

an invalid aggravating circumstance, reweighed the remaining aggravating

circumstances against mitigating evidence, and affirmed. While the state court

remarked that it had “considered all of the proffered mitigation,” it also made clear

that one category of evidence — proof of Post-Traumatic Stress Disorder (PTSD)

caused by Petitioner’s Vietnam combat experience — did not “constitute mitigation”

at all because the experts “could not connect” that evidence to the capital offense.

Accepting the Arizona Supreme Court’s own plain statement that the PTSD evidence

could not be regarded as “mitigation” because it lacked the requisite nexus, and

recognizing that the resulting exclusion of this evidence from the reweighing process

contravened this Court’s decisions in Eddings v. Oklahoma, 455 U.S. 115 (1982), and

Clemons v. Mississippi, 494 U.S. 738 (1990), the Ninth Circuit held that the state

court’s decision was contrary to clearly established federal law.

The following question is presented:

When the basis of a state court’s decision, as plainly stated

in its opinion, is rreconcilable with rules laid down by this

Court, is it appropriate for a federal habeas court to hold

that the state court’s decision was contrary to clearly

established federal law?

TABLE OF CONTENTS

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Reasons Why the Wnt Should Be Denied .............. cc cece cece ee aes 5

I, Petitioner’s First Question Presented Rests on a

Fundamentally Flawed Premise: That the Ninth Circuit

Should Have Applied 28 U.S.C. § 2254(e)(1) to the State

Court’s Characterization of its own Analysis. .............0000. 5

II]. Petitioner's Second Question Presented Also Rests on a

Fundamentally Flawed Premise: That the Arizona Supreme

Court Elected to Give “Little Weight” to Styers’ Proffered

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TABLE OF AUTHORITIES

CASES Page(s)

City of Houston, Tex. v. Hill,

Oe a IS si ho inne ae sa ee ee eee 12

Clemons v. Mississippi,

oe ME i: ere np Rpm ary hire REO A, Casitas 1,3

Eddings v. Oklahoma,

MOOD PUP UPR i Ci va eens yas une Gees acens 1,4, 6, 7, 8, 10, 11, 12

Smith v. Texas,

SN Br OEY o.oo sal ko ek na NOR ee ee 4 6, 7,8, 10, 11

State v. Hoskins,

Pee FOU, GE og ns eves aba cn ek ee ee 9.10, 11

State v. Pandelli,

POE Fie FF CO, Bt vi ho vb a do ee Oh a ae eae oe 10

tate v. Styers,

Gs ee Fe CI UP oon ick ohi6 ion ok eas sivas sw eee

Styers v. Schriro,

S97 Ea ee a a es a es 4,8, 10

Tarr v. Manchester Ins. Corp.

SOR ee OO et ike ce oe ee ene 12

Tennard v. Dretke,

SE UE gx oo eee

Thompson v. Keohane,

BOG TER Wrreeee ook oe led rand Gea Vis pole ee

CASES Page(s)

Williams v. Taylor,

Se IE 2s 5s 52 oo rae is 8 ooh a oi eee 6

STATUTES, RULES, REGULATIONS

Rees NN, MI Wg ore gsc es cere ee coe ere ee 6,7

Be I sek ors dk ea ae ee ee 5.6, 7,12

OTHER AUTHORITIES

Physicians Desk Reference,

ST, OE Fa POF EIN kc 5s vb cue ces cas vadevevecy ven vats |

RESPONDENT’S STATEMENT OF THE CASE

During his capital sentencing proceedings, Respondent Styers presented

undisputed mitigation evidence which demonstrated that he suffered from a long-

standing severe mental illness, as well as neurological impairments resulting from a

severe head injury. The evidence showed that in 1967, at age 19, Styers volunteered

for service in the United States Marine Corps, where he served honorably in at least

twelve different major combat operations in the Vietnam theater during 1968-1969.

Shortly after leaving the field of combat, and continuing through the time of his arrest

for the instant offense, Styers suffered from symptoms of post-traumatic stress

disorder (“PTSD”). Conisequent to his illness, Styers endured auditory, visual and

tactile hallucinations typically associated with an active psychosis. Styers sought

help from the Veterans Administration, but the treatment he received was not

successful; he could not maintain employment, and he continually suffered from

symptoms of PTSD, including depression, anxiety, and psychosis. Preceding and

through the time of his arrest for the subject offense, Styers was treated with a

combination of drugs, including Navane and Lithium.' The record also showed that

Lithium is administered to control mania associated with manic-depressive

illness and bi-polar disorder, and Navane is a potent anti-psychotic used in the

treatment of schizophrenia and psychosis. See Physicians Desk Reference, 50th Ed.

at 220}-2202, 2485 (1996).

Styers’ psychiatric difficulties were compounded by a traumatic and disabling head

injury sustained when he fell from a moving military vehicle and suffered a right

occipital skull fracture and a cerebral contusion. As a result of these injuries, Styers

was declared permanently disabled and discharged from the military. The record

showed that these head injuries left Styers brain damaged, with seizure activity, and

organic brain cial with mixed features.

On direct review of Styers’ death sentence, the Arizona Supreme Court struck

one of the aggravating circumstances relied upon by the tnal court, and later

reweighed the remaining aggravating and mitigating circumstances as required by this

Court’s decisions. State v. Styers, 865 P.2d 765, 778 (Ariz. 1993). Before

conducting the reweighing, the state court identified Styers’ lack of prior convictions

and his honorable military service as “relevant mitigating circumstances.”” Jd. at 777.

The court then observed that,

{Styers] also suffered from post-traumatic stress disorder

prior to and around the time of the murder as a result of his

combat service in Vietnam. This could also, in an

appropriate case, constitute mitigation. ... However, two

doctors who examined defendant could not connect

[Styers’] condition to his behavior at the ume of the

conspiracy and the murder.

’The state court never mentioned Styers’ documented neurological impairments

and brain damage in its decision.

2

Id. at 777 (emphasis added) Finally, ina subsequent section of its opinion, entitled

“INDEPENDENT REVIEW,” the court stated that it had “considered all of the proffered

mitigation and, like the trial court, flou]nd it [wa]s not sufficiently substantial to

warrant leniency.” /d. at 778.

After exhausting his state post-conviction remedies, Styers petitioned for a writ

of habeas corpus in the district court of Arizona. There Styers alleged that the

Arizona Supreme Court’s decision affirming his sentence was made contrary to this

Court’s holding in Clemons v. Mississippi, 494 U.S. 738 (1990) (when a sentence

rests on an invalid aggravating factor, “only constitutional harmless-error analysis or

reweighing at the trial or appellate level suffices to guarantee that the defendant

received an individualized sentence”). The district court dismissed Styers’ Clemons

claim on the ground that it had not been exhausted in the state court proceedings.

Styers filed a timely appeal to the Ninth Circuit Court of Appeals.

After finding that Styers’ Clemons claim had been exhausted in the State court

proceedings,’ the Ninth Circuit determined that although the Arizona Supreme Court

stated that it had “considered all of the proffered mitigation,” it was evident from the

plain language of the state court’s opinion that its causal nexus requirement had

‘Petitioner has not challenged the Ninth Circuit's exhaustion determination

before this Court.

resulted in the exclusion of constitutionally relevant evidence from what the state

court regarded as “all” of the “mitigation.” Citing this Court’s decision in Eddings

v. Oklahoma, 455 U.S. 105, 114-15 (1982), the Ninth Circuit panel recognized that

while the state court was free to determine the weight to be given relevant mitigating

evidence, it was not at liberty to apply an unconstitutional standard to exclude

relevant mitigation from the weighing calculus altogether. Styers vy. Schriro, 547 F.3d

1026, 1035-36 (9th Cir. 2008). The panel further observed that in Smith v. Texas, 543

U.S. 37 (2004), this Court had rejected the use of a nexus requirement for identifying

relevant mitigation that was materially indistinguishable from the test employed by

the Arizona Supreme Court in Styers’ case. Jd. at 547 F.3d 1035.

“The Ninth Circuit panel vacated the district court’s judgment, denying the writ

of habeas corpus with instructions to grant the writ with respect to Styers’ sentence,

“unless the state . . . either corrects the constitutional error in petitioner’s death

sentence or vacates the sentence and imposes a lesser sentence consistent with law.”

Id. at $47 F.3d 1036.

REASONS WHY THE WRIT SHOULD BE DENIED

I. PETITIONER’S FIRST QUESTION PRESENTED RESTS ON A FUNDAMENTALLY

FLAWED PREMISE: THAT THE NINTH CIRCUIT SHOULD HAVE APPLIED 28

U.S.C. § 2254(e)(1) TO THE STATE COURT’S CHARACTERIZATION OF ITS

OWN ANALYSIS.

The premise of Petitioner’s first Question Presented is that the court of appeals

was obligated to apply the § 2254(e)(1) presumption of correctness to the Arizona

Supreme Court’s statement that it had “considered all of the proffered mitigation ....”

(Petition at 11.) Acceptaiice of this premise would require an unprecedented

expansion of the reach of the statutory presumption of correctness. As this Court

explained in Zhompson vy. Keohane, 516 U.S. 99 (1995), the statutory presumption

of correctness applies only to “‘basic, primary, or historica! facts: facts “in the sense

of a recital of external events and the credibility of their narrators....”’” Thompson,

516 U.S. at 110 (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6 (1963) (quoting

in turn Brown v. Allen, 344 U.S. 443, 506 (1953))). Petitioner neither acknowledges

the sweeping change it seeks, nor offers any justification for such a departure from

this Court’s settled precedents.

What is more, standing alone, the Anzona Supreme Court's statement that it

considered Styers’ proffered mitigation is all but irrelevant to the question properly

asked and answered by the court of appeals: whether the state court applied an

unconstitutional causation/nexus test to exclude relevant mitigation from its weighing

calculus. If the state court applied such an unconstitutional test for qualifying

mitigation (as the Ninth Circuit correctly determined it did), then the state court

decision was contrary to this Court’s clearly established precedents within the

meaning of 28 U.S.C. § 2254(d)(1).° Eddings v. Oklahoma; supra (evidence of

defendant’s personality disorder was constitutionally relevant mitigation despite the

fact that it did not provide a legal excuse for the offense); Smith v. Texas, 543 U.S.

37, 44-45 (2004) (holding that the state appellate court’s nexus to the crime screening

test for the identification of relevant mitigation evidence was plainly constitutionally

inadequate under the Court’s Eighth Amendment precedents),

Subsection 2254(e)(1), provides that “a determination of a factual issue made

by a State court shall be presumed to be correct and the applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” This subsection of the statute applies to challenges made to a state court’s

determination of historical fact; it does not apply (and this Court has never held

subsection (e)(1) to apply) to a state court’s own legal analysis. The Arizona

*A“ state court decision will... be contrary to [this Court’s] clearly established

precedent if the state court applies a rule that contradicts the governing law set forth

in {this Court’s] cases.” Terry Williams v. Taylor, 529 U.S. 362, 405 (2000).

Supreme Court’s legal analysis dwells in its evaluation of Styers’ mental illness and

whether that evidence could qualify as mitigation. The state court plainly held such

evidence could not qualify as mitigation because it lacked an explanatory nexus to the

offense. Ignoring that holding on the ground that a subsequent line in the state court’s

opinion should be presumed correct pursuant to § 2254(e)(1) would require this Court

to extend the reach of that provision far beyond where it has ever gone before, and

would result in the improper expansion of subsection (e)(1) into territory presently

and properly reserved for § 2254(d). Petitioner provides no legal support for such a

radical reading of the statute, and its first question presented does not warrant this

Court’s consideration.

I]. | PETITIONER’S SECOND QUESTION PRESENTED ALSO RESTS ON A

FUNDAMENTALLY FLAWED PREMISE: THAT THE ARIZONA SUPREME

COURT ELECTED TO GIVE “LITTLE WEIGHT” TO STYERS’ PROFFERED

MITIGATION.

It is axiomatic that a state court may not require a capita] defendant to establish

that his mitigation evidence has an explanatory nexus to the charged offense, as

condition to the showing of the constitutional relevance of his proffered mitigation.

This rule has been a bedrock principle of this Court’s Eighth Amendment

jurisprudence for nearly 30 years. Eddings v. Oklahoma, supra; Smith v. Texas,

supra, Tennard v. Dretke, 542 U.S. 274, 283-285 (2004).

Prior to this Court’s decisions in Smith and Tennard, the Arizona Supreme

Court applied such an unconstitutional nexus-to-the-crime screening test for

identifying certain categories of relevant mitigation evidence, and the Arizona

Supreme Court employed this improper legal standard when it reviewed Styers’

sentence. The plain language of the Arizona Supreme Court’s decision is clear; it

stated with respect to Styers’ mental illness, that “[t]his could also, in an appropriate

case, constitute mitigation .. . [h]owever two doctors who examined defendant could

not conneci defendant’s condition to his behavior at the time of the murder.” State

v. Styers, 865 P.2d at 777. The Ninth Circuit properly recognized that in applying

this type of nexus test to conclude that Styers’ post-traumatic stress disorder did not

qualify as mitigation, the state court imposed a test directly contrary to Eddings v.

Oklahoma, supra, and Smith v, Texas, supra. See Styers v. Schriro, at 547 F.3d 1035.

The Petitioner’s objection to this correct result reached by the Ninth Circuit is

threefold.

First, it suggests that the Arizona Supreme Court merely accorded little weight

to Styers’ proffered mitigation. No language in the state court decision supports this

premise. Instead, the plain language of the decision itself demonstrates that the state

court determined that in the absence of a nexus to the offense, evidence of Styers’

mental infirmities could not be considered mitigation in the first instance. The court

decided that with respect to the evidence of Styers’ post-traumatic stress disorder,

“{t]his could also, in an appropriate case, constitute mitigation .. . [{hljowever two

doctors who examined defendant could not connect defendant’s condition to his

behavior at the time of the murder.” State v. Styers, supra.

Second, the Petitioner argues that the state court could not have applied an

unconstitutional test for identifying relevant mitigation, because such a test has never

been part of Arizona’s jurisprudence and state courts must be presumed to know and

follow the law. This argument also easily fails. Contrary to the Petitioner’s

contention, there is Arizona Supreme Court authority directly on point holding that

a defendant must demonstrate that evidence of his mental impairments has a causal

nexus to the offense, and failing that, such evidence will not be deemed relevant

mitigation, or eligible for inclusion in the weighing calculus. See State v. Hoskins,

14 P.3d 997, 1021-22 (Ariz. 2000) (remarking on whether evidence of a defendant’s

mental impairments or a history of family dysfunction could qualify as relevant

mitigation, the Arizona Supreme Court stated that such evidence would be treated as

irrelevant, unless a nexus to the offense was proven).

{M]itigating circumstances must be “relevant in

determining whether to impose a sentence less than

death ....” A.R.S. § 13-703(G). Ifthe defendant fails to

prove causation, the circumstance will not be considered

mitigating. However, if the defendant proves the causal

link [to the offense] the court then will determine what, if

any, weight to accord the circumstance in mitigation.

State v. Hoskins, 14 P.3d 997, 1021-22 (Ariz. 2000).°

Third, based on the false premise that the Arizona court only made a weighting

decision, the Petitioner argues that the Ninth Circuit wrongly extended Eddings and

Smith to preclude a state court from gauging the weight to be afforded mental health

mitigation based on whether it has a nexus to the crime. Once again the factual

premise for the argument is erroneous. The Ninth Circuit decision expressly

recognized that under Eddings, “the sentencer and the appellate court on review, may

determine the weight given relevant mitigating evidence.” Styers v. Schriro, at 547

F.3d 1035. Contrary to Petitioner’s argument, the Ninth Circuit decision reflects a

proper understanding and application of this Court’s precedents.

Taken together, the petition’s threefold argument in support of its second

presented question would require the Court to engage in tortured readings of no less

than three court decisions. First the Court would be required to ignore the plain

language of the Arizona Supreme Court cpinion in Styers’ case, where that court

®Styers agrees with the Petitioner, that after this Court decided Tennard and

Smith, the Arizona Supreme Court appears to have withdrawn from its application of

the unconstitutional nexustest. See State v. Pandelli, 161 P.3d 557,575 (Ariz. 2007)

(the absence of evidence that mitigation has explanatory nexus to the offense would

be applied to the consideration of the strength of the mitigation).

‘ial

ov

clearly held that evidence related to Styers’ post-traumatic stress disorder would not

qualify as mitigation in his case because it lacked a nexus to the offense. State v.

Styers, supra, (“[t]his could also, in an appropriate case, constitute

mitigation . . . [h]owever two doctors who examined defendant could not connect

defendant’s condition to his behavior at the time of the murder”). Second, the Court

would have to ignore, or engage in a tortured reading of the decision in State y,

Hoskins, which also clearly held that lacking a nexus to the offense, evidence of a

defendant’s traumatic childhood or mental health disabilities would not qualify as

relevant mitigation, or be eligible for inclusion in the weighing calculus. Third, the

Court would need to construe the Ninth Circuit decision as extending Eddings and

Smith beyond their established parameters, despite the fact that the Ninth Circuit

decision expressly indicated that it was not doing so.

Recognizing the frailties in its position, the Petitioner suggests that a question

be certified to the Arizona Supreme Court “if this Court believes that the Arizona

Supreme Court did not even ‘consider’ the evidence of Styers’ post-traumatic stress

disorder.” (Petition at 23.) The request for certification is not appropriate. Ifas the

Petitioner has stated, “this Court believes that the Arizona Supreme Court did not

even ‘consider’ the evidence of Styers’ post-traumatic stress disorder,” the proper

response would be to deny the petition and allow the Ninth Circuit decision to stand.

See City of Houston, Tex. v. Hill, 482 U.S. 451, 471 (1987) (“[iJt would be manifestly

inappropriate to certify a question in a case where, as here, there is no uncertain

question of state law whose resolution might affect the pending federal claim”); Tarr

v. Manchester Ins. Corp., 544 F.2d 14, 15 (Ist Cir.1976) (“[t]he purpose of

certification is to ascertain what the state law is, not, when the state court has already

said what it is, to afford a party an opportunity to persuade the court to say something

else.”).

Relying on the plain language of the state court decision, the Ninth Circuit

decision correctly determined that the Arizona Supreme Court’s application of a

nexus test for identifying, and thus excluding relevant mental health mitigation,

resulted in a decision that was contrary to this Court’s decision in Eddings v.

Oklahoma. Application of such a nexus test represents a clear departure from this

Court’s established precedents, qualifying Styers for habeas relief under 28 U.S.C.

§ 2254(d)(1).

Rule 10 of the Supreme Court states that “‘[a] petition for a writ of certiorari is

rarely granted when the asserted error consists of... the misapplication of a properly

stated rule of law.” There is no issue of importance in this case and the Petitioner

seeks nothing more than correction of what it perceives to be an error.

CONCLUSION

The court of appeals correctly decided Styers’ federal claim. The petition for

certiorari fails to demonstrate any legitimate questions for this Court’s review and

should be denied.

Dated this 24th day of June, 2909.

WATERFALL, ECONOMIDIS, CALDWELL,

HANSHAW & VILLAMANA, P.C.

al ~) oe

B

Cary Sandman

Attorney for Respondent