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McKinney v. Ryan

United States Court of Appeals, Ninth Circuit

December 29, 2015

James Erin McKinney, Petitioner-Appellant,
v.
Charles L. Ryan, Respondent-Appellee.

Argued and Submitted En Banc December 15, 2014-Pasadena, California

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:03-cv-00774-DGC

Ivan K. Mathew (argued) and Susan Turner Mathew, Mathew and Associates, Phoenix, Arizona, for Petitioner-Appellant.

Jon Anderson (argued) and Jeffrey A. Zick, Assistant Attorneys General, Terry Goddard, Attorney General, and Kent Cattani, Chief Counsel, Arizona Attorney General's Office, Criminal Appeals/Capital Litigation Section, Phoenix, Arizona, for Respondent-Appellee.

Michael L. Burke and Robin Konrad, Assistant Federal Public Defenders, Jon M. Sands, Federal Public Defender, Federal Public Defender's Office, Phoenix, Arizona, for Amicus Curiae Office of the Federal Public Defender.

Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman, Consuelo M. Callahan, Carlos T. Bea, Morgan Christen and Jacqueline H. Nguyen, Circuit Judges.

SUMMARY[*]

Habeas Corpus

The en banc court reversed the district court's judgment denying Arizona state prisoner James McKinney's petition for a writ of habeas corpus, remanded with instructions to grant the writ with respect to McKinney's death sentence unless the state, within a reasonable time, corrects the constitutional error in his death sentence or vacates the sentence and imposes a lesser sentence consistent with law.

The en banc court overruled Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011) (per curiam), which prohibited an assumption of unconstitutionality under Eddings v. Oklahoma, 455 U.S. 104 (1982), absent a clear indication in the record that the state court applied the wrong standard.

The en banc court held that the Arizona Supreme Court applied an unconstitutional causal nexus test to McKinney's post-traumatic stress disorder-refusing, as a matter of law, to treat it as a relevant nonstatutory mitigating factor- contrary to clearly established federal law as established in Eddings.

The en banc court held that Eddings error is not structural error, but that the Eddings error in this case had a substantial and injurious effect on McKinney's sentence within the meaning of Brecht v. Abrahamson, 507 U.S. 619 (1993).

Judge Bea, joined by Judges Kozinski, Gould, Tallman, and Callahan, dissented. He wrote that the majority ignores Supreme Court precedent, implicitly overrules this court's precedent, replaces AEDPA's deferential standard of review with an impermissible de novo standard, misstates the record, wrongly smears the Arizona Supreme Court, calls into question every death sentence imposed in Arizona between 1989 and 2005 and this court's cases that have denied habeas relief as to those sentences, and brushes by the facts of McKinney's gruesome crimes to find that the error the majority has manufactured was prejudicial.

OPINION

W. FLETCHER, CIRCUIT JUDGE

Petitioner James McKinney was sentenced to death, and his sentence was affirmed by the Arizona Supreme Court on de novo review in 1996. State v. McKinney, 917 P.2d 1214 (Ariz. 1996). A three-judge panel of this court denied McKinney's petition for a writ of habeas corpus. McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013). We granted rehearing en banc and withdrew our three-judge panel opinion. McKinney v. Ryan, 745 F.3d 963 (9th Cir. 2014). In his federal habeas petition, McKinney challenges both his conviction and sentence. We agree with the decision of the three-judge panel with respect to McKinney's challenges to his conviction, and to that extent we incorporate the decision of the panel. We address in this opinion only McKinney's challenge to his death sentence. For the reasons that follow, we grant the petition with respect to his sentence.

In Eddings v. Oklahoma, 455 U.S. 104, 114 (1982), the Supreme Court held under the Eighth and Fourteenth Amendments that a sentencer in a capital case may not "refuse to consider, as a matter of law, any relevant mitigating evidence" offered by the defendant. (Emphasis in original.) Oklahoma state courts had refused, as a matter of law, to treat as relevant mitigating evidence a capital defendant's background of family violence, including beatings by his father, on the ground that "it did not tend to provide a legal excuse from criminal responsibility." Id. at 113. The Supreme Court reversed. Recognizing the special character of the death penalty, the Court held that evidence of Eddings's background of family violence had to be treated as relevant evidence in determining whether to put him to death.

The Court wrote, "The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration." Id. at 114–15.

At all times relevant to this case, Arizona law provided for two kinds of mitigation factors in capital sentencing - statutory and nonstatutory. A nonexhaustive list of five statutory mitigating factors was provided in Ariz. Rev. Stat. Ann. § 13-703(G). Arizona case law applied, in addition, nonstatutory mitigating factors, such as a difficult family background or a mental condition not severe enough to qualify as a statutory mitigating factor.

For a period of a little over 15 years in capital cases, in clear violation of Eddings, the Supreme Court of Arizona articulated and applied a "causal nexus" test for nonstatutory mitigation that forbade as a matter of law giving weight to mitigating evidence, such as family background or mental condition, unless the background or mental condition was causally connected to the crime. In State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989), decided seven years after Eddings and four years before petitioner was sentenced, the Arizona Supreme Court wrote, "A difficult family background, in and of itself, is not a mitigating circumstance. . . . A difficult family background is a relevant mitigating circumstance if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control." In State v. Ross, 886 P.2d 1354, 1363 (Ariz. 1994), decided one year after petitioner was sentenced but before his sentence was affirmed on appeal, the Arizona Supreme Court wrote, citing the precise page in Wallace, "A difficult family background is not a relevant mitigating circumstance unless 'a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control.' State v. Wallace, . . . 773 P.2d 983, 986 (1989)."

Two years after its decision in Ross, the Arizona Supreme Court affirmed McKinney's death sentence. In addressing the potential mitigating effect of his mental condition, the Court wrote that McKinney's PTSD had no causal nexus to his crimes. If anything, the Court wrote, "the effects of [his] childhood, specifically the diagnosis of post-traumatic stress disorder (PTSD)" would have influenced him not to commit the crimes. McKinney, 917 P.2d at 1234. The Court concluded its analysis of McKinney's PTSD, citing the precise page in Ross on which it had articulated the causal nexus test for nonstatutory mitigation: "[A] difficult family background, including childhood abuse, does not necessarily have substantial mitigating weight absent a showing that it significantly affected or impacted the defendant's ability to perceive, comprehend, or control his actions. See State v. Ross, . . . 886 P.2d 1354, 1363 (1994)." State v. McKinney, 917 P.2d 1214, 1234 (Ariz. 1996).

For just over fifteen years, the Arizona Supreme Court consistently articulated and applied its causal nexus test, in accordance with its strong view of stare decisis. See Young v. Beck, 251 P.3d 380, 385 (Ariz. 2011) ("[S]tare decisis commands that 'precedents of the court should not be lightly overruled, ' and mere disagreement with those who preceded us is not enough." (quoting State v. Salazar, 173 Ariz. 399, 416 . . . (1992))); State ex re. Woods v. Cohen, 844 P.2d 1147, 1148 (Ariz. 1993) (referring to "a healthy respect for stare decisis"); State v. Williker, 491 P.2d 465, 468 (Ariz. 1971) (referring to "a proper respect for the theory of stare decisis"); White v. Bateman, 358 P.2d 712, 714 (Ariz. 1961) (prior case law "should be adhered to unless the reasons of the prior decisions have ceased to exist or the prior decision was clearly erroneous or manifestly wrong").

The case before us is unusual. In federal habeas cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we apply a "presumption that state courts know and follow the law" and accordingly give state-court decisions "the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). If the Arizona Supreme Court during the relevant period had been inconsistent in its articulation and application of its unconstitutional "causal nexus" test for nonstatutory mitigation, we would give the Court the benefit of the doubt and would accord it the presumption that it knew and followed governing federal law. But the Arizona Supreme Court's consistent articulation and application of its causal nexus test, and its citation in McKinney's case to the specific page of Ross on which it articulated the test, make such a course impossible. While Visciotti's presumption is appropriate in the great majority of habeas cases, the presumption is rebutted here where we know, based on its own words, that the Arizona Supreme Court did not "know and follow" federal law.

The precise question before us is whether the Arizona Supreme Court applied its unconstitutional "causal nexus" test in affirming McKinney's death sentence on de novo review. We must decide whether, under AEDPA, the Arizona Supreme Court refused to give weight, as a matter of law, to McKinney's nonstatutory mitigation evidence of PTSD, "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). For the reasons that follow, we conclude that it did. We therefore grant the writ with respect to petitioner's sentence.

I. McKinney's Crimes, Conviction, and Sentence

James McKinney and his older half brother, Charles Michael Hedlund, committed two burglaries in February and March of 1991. One person was shot and killed during each of the burglaries. At the time of the crimes, McKinney was 23 years old. Hedlund was 26 years old. McKinney and Hedlund had learned about potential burglary targets from their half brother, Christopher Morris, and a friend, Joe Lemon, who had suggested Christine Mertens's home as a target. The four of them attempted to burglarize Ms. Mertens's home on February 28, 1991, but Ms. Mertens came home and they left to avoid detection. The three half brothers, McKinney, Hedlund, and Morris, then committed two burglaries at other locations the following day.

McKinney, Hedlund, and possibly Morris went back to Ms. Mertens's house a little over a week later, on March 9, 1991. This time, Ms. Mertens was already at home. She was beaten and stabbed by one or more of the burglars. One of the burglars held Ms. Mertens down on the floor and shot her in the back of the head with a handgun, covering the gun with a pillow. (Morris turned state's evidence and testified against McKinney and Hedlund. He testified that he was at work at Burger King on the night of the Mertens murder, but Burger King had no record of him working that night.) McKinney and Hedlund later tried unsuccessfully to sell the gun. They ultimately disposed of the gun by burying it in the desert. Not quite two weeks later, on March 22, 1991, McKinney and Hedlund burglarized the home of Jim McClain, from whom Hedlund had bought a car several months earlier. Mr. McClain was asleep in the bedroom. He was shot in the back of the head by either McKinney or Hedlund. The bullet was consistent with having been fired from a sawed-off rifle owned by Hedlund.

McKinney and Hedlund were tried together before dual juries for the burglaries and homicides. McKinney's jury found him guilty of two first degree murders. Hedlund's jury found him guilty of second degree murder of Ms. Mertens and first degree murder of Mr. McClain. On July 23, 1993, the trial judge sentenced McKinney to death. The Supreme Court decision holding judge-sentencing in capital cases unconstitutional was nine years in the future. See Ring v. Arizona, 536 U.S. 584 (2002). In the last reasoned state court decision, the Arizona Supreme Court, reviewing de novo, affirmed McKinney's conviction and sentence in 1996. McKinney, 917 P.2d 1214. We describe the Arizona Supreme Court's sentencing decision at greater length below. McKinney filed for state post-conviction relief. His petition was denied by the trial court without an evidentiary hearing. The Arizona Supreme Court then summarily denied his petition for review.

II. McKinney's Family Background

McKinney suffered a traumatic childhood characterized by severe physical and psychological abuse, both by his biological parents, James McKinney, Sr. ("James") and Bobbie Jean Morris, and by his stepmother, Shirley Crow McKinney. At McKinney's sentencing hearing, his aunt (his father's sister), Susan Sesate, and his younger sister, Diana McKinney, described the abuse.

Susan and Diana both testified about the squalid conditions in which McKinney lived as a child. Susan testified that while McKinney's parents, James and Bobbie, were still married, their house was filthy. She testified, "[W]hen you walked through the door, it wasn't nothing to see, you know, diapers full of - all around. . . . Everything stunk." James was an alcoholic, and Bobbie left him when McKinney was about three years old.

When Bobbie left James, she took with her their three children, Diana, Donna, and McKinney. Susan testified, "She ran with them. . . . She ran to a lot of different states. I know she went to California first and Kansas twice. California again. I know she went through Texas, New Mexico." James pursued and brought Bobbie and the children back to Arizona, but "she would run again." "As soon as he brought her back, within a week she'd be gone again to Kansas. She had the kids there." James told McKinney's presentence investigator that Bobbie had "kidnapped" the children, and that he took them back "after he found out they were being physically abused and were being locked in closets, hungry and sick."

Bobbie eventually left James for good, and he got remarried. James got custody of the children and brought them to Arizona to live with him and his new wife Shirley. The conditions in the house with James and Shirley were even worse than they had been with James and Bobbie. Susan, a teenager at the time, lived with her mother (who was also James's mother) in a house nearby. She was at the McKinney house frequently. Susan testified that the house "was gross. It was gross. I mean, the house was filthy, the kids were filthy, they never had clean clothes that I ever saw them in. If they had clothes, they were ill-fitting clothes. I mean, it was disgusting."

McKinney, his two sisters, and his older half brother Hedlund (Bobbie's son by a different father) shared one small bedroom. Shirley's daughter had a bedroom to herself. Susan testified that the floor of the four children's bedroom was always covered with dirty clothes because there were no bureaus and no hangers for the closet. There were no sheets on the beds. The children had to share their room with animals Shirley brought home, including dogs, cats, a goat, snakes, and a monkey. The animals regularly defecated and urinated in the bedroom. Diana testified that the adults never cleaned the bedroom.

Diana was 18 months old when James took the children from Bobbie and brought them to the Arizona house he shared with his new wife Shirley. Donna was three, McKinney was four or five, and Hedlund was seven. Diana and Susan testified that the four children were responsible for all general household cooking and cleaning, including cleaning up the animal feces and urine that were "all over" the house; feeding farm animals, including cows, pigs, and goats; taking care of James's hunting dogs; doing all of their own laundry; and sometimes doing Shirley's laundry. Diana testified that she and the other children cleaned the house the best they could, but "the house still smell[ed]" all the time. Susan testified, "It was nothing to see James [Jr.] and Michael [Hedlund] standing on chairs at the stove cooking or having to stand on chairs to do the dishes" because they were too small to reach the stove and the counters. Shirley's daughter did not have to do any chores. Shirley kept the children from attending school as punishment for various supposed infractions. Susan testified that on one occasion McKinney sat on the porch for three days while the others went to school. When Susan's mother (McKinney's grandmother) sent Susan over to investigate, McKinney told her that Shirley would not allow him to go to school unless Bobbie bought him a new pair of tennis shoes. Susan's mother bought McKinney shoes so he could return to school.

The children never had regular baths and often had dirty hair. When the children went to school, they wore dirty clothes that reeked of urine from being on the bedroom floor with the animals. The children's school sent letters home about their appearance and odor. They were regularly harassed and teased by other children. McKinney was frequently suspended for fighting on the school bus because other children made fun of his appearance and odor.

The four children suffered regular and extensive physical, verbal, and emotional abuse. Minor infractions of Shirley's rules, such as not doing the dishes properly, resulted in beatings. Diana testified that she could not recall a time when none of the children had a welt or bruise inflicted by Shirley. Susan testified, "They had bruises all the time. It was hard to tell what were new bruises and what weren't." Shirley used plastic switches, cords, belts, and a hose to hit them- "anything she could get in her hands." Diana estimated that McKinney was beaten two to three times a week. Susan testified to repeated serious beatings, including one particular beating with

[a] water hose. It was about a yard long like that (indicating), and she had like a pocket knife, and she snipped the hose and she went after him. She beat him on the back of the head, down his back, all over his legs, his arms; anything that moved, she hit him. . . . He had bruises for weeks after that all over him. . . . Michael Hedlund tried to stop her. He grabbed her arm, and so she swung back and hit him across the side of the face and bruised his face.

Hedlund left the house to live with his mother when he was 14 years old. This left McKinney, approximately age 11, as the only boy and the oldest of the three remaining children. McKinney was too young to protect either himself or his younger sisters. Diana, the younger of the two girls, described their childhood experience as "horrible. It was scary. It seems like we were all stressed out wondering when the next time we were getting beat; wondering when we were going to eat next."

Shirley's physical abuse was accompanied by verbal and emotional abuse. Diana testified that Shirley regularly yelled at them, telling them that they were "[s]tupid, ugly, [and] not worth anything." Diana testified that Shirley showed consistent favoritism toward her own daughter, while treating her stepchildren as the "four bad kids."

Shirley often locked the children out of the house for hours without food and, sometimes, water. There was a hose in the yard, but Susan testified that if Shirley "was really angry at them, they couldn't turn the water faucet on outside and even get a drink of water, and it would be 110 degrees outside." Susan remembered one occasion seeing the four children outside on a hot Arizona summer day, clustered in the shade of an eave of the house. None of the children had shoes; the girls were wearing only underwear, and the boys were wearing cutoff shorts with no shirts. When Susan and her mother returned to their house four hours later in the middle of the afternoon, the children were still there, their faces "beet red." They told her that they were not allowed to get any water and could not come back inside until their father got home, when he would "punish them." On another occasion, Susan testified, Shirley "pick[ed] James [Jr.] up by the scruff of the neck" and put him out on the porch with no shoes or coat during the winter, when the frozen grass "would crunch under your feet."

Shirley spent most of her time at home, while James was generally absent. When he was home, James drank heavily. Susan testified that James's mother confronted him about Shirley's physical abuse of the children, but he told her to "keep her nose out of his business." Susan testified to an incident in which McKinney, who was in first or second grade at the time, had stolen a lunch at school because Shirley and James had not given him any lunch money. McKinney was suspended for several days. James told his son that "he wasn't going to punish him for stealing lunch; he was going to punish him for getting caught."

By age nine or 10, McKinney had become distant, quiet and withdrawn. He avoided other children. He began using alcohol and marijuana at age 11. He dropped out of school in the seventh grade. At about this time, he began running away from home. Diana testified that McKinney ran away four or five times. Susan remembered one incident in which, at age 11, McKinney showed up unannounced at her house in Gilbert, Arizona after traveling alone from Oklahoma, where the family had moved. McKinney had taken a bus as far as Flagstaff, but did not have enough money to go farther. He spent the next two days hitchhiking the rest of the way to Susan's house. McKinney's arm, shoulder, and face were bruised; he told Susan he had gotten into a fight with Shirley. Susan called his mother Bobbie on the telephone to tell her that McKinney was at her house and that he was dirty and tired, and hadn't eaten in days. Bobbie did not come over to pick him up. She called the sheriff instead, who picked up McKinney and put him in juvenile detention.

III. McKinney's Post-traumatic Stress Disorder

Dr. Mickey McMahon, a psychologist, made a formal diagnosis of PTSD resulting from the horrific childhood McKinney had suffered. Before arriving at his diagnosis, Dr. McMahon had spent eight and a half hours with McKinney, talking to him and administering a battery of tests. He had also spoken with Susan for an hour and with Diana for half an hour. Finally, Dr. McMahon had listened to Susan and Diana's testimony in court before providing his own testimony. When asked, "[D]o you have any doubts about your diagnosis of James McKinney having Post-traumatic Stress Disorder?" Dr. McMahon answered, "No. None."

Dr. McMahon testified that his diagnosis of PTSD rested not only on the abuse that McKinney himself had suffered. He testified, "We know in research that witnessing can be even more damaging than actually being the recipient of abuse. . . . [T]here is a helplessness that is involved when you're witnessing . . . violence and you're too small to do anything about it." When asked whether "violence upon his sisters and brother would be . . . more traumatic to him possibly than himself, " Dr. McMahon answered, "Yes." Dr. McMahon testified that his interview with McKinney "had gone into great depth about him witnessing Dian[]a being abused and beaten by her stepmother."

Dr. McMahon testified that McKinney's PTSD was characterized by "flashbacks, " by "some sort of voidness, numbing, withdrawing, " and by "substance abuse." The substances were "generally downers, opiates in prison, alcohol, marijuana." Dr. McMahon characterized McKinney as "basically passive, " "quite submissive, " and "susceptible to manipulation, exploitation." "He can be emotionally overwhelmed by environmental stress and act in poorly-judged ways just to [re]duce the internal emotional turmoil." "He does not present [i]n the testing [as someone] who is . . . manipulative, sensation- or thrill-seeking, and we know often that people that get involved with violent kinds of crime are thrill-seeking sociopaths. These results do not look like that. It looks the opposite of that, since these tests are pretty much consistent. He is a lo[]ner; depressed."

When asked whether someone with PTSD would "suffer . . . constantly" from it, or whether it "may rear its head under certain situations, " Dr. McMahon responded that for someone with PTSD "there is the potential for the trauma to be re-triggered, if things happen that are similar to what happened when you're originally traumatized." When asked about the Mertens burglary and murder, Dr. McMahon testified that if an altercation had taken place between Ms. Mertens and another person (not necessarily McKinney), it could "very possib[ly]" have "re-triggered" McKinney's trauma and could have produced "diminished capacity."

When asked about the McClain burglary and murder, Dr. McMahon testified that it would have been very uncharacteristic of McKinney to have shot a sleeping person. "Mr. McKinney's test[] results, in the more than eight hours I spent with him, did not indicate that he was that thrill-seeking kind of, execution-kind of person. He'd rather withdraw from the situation." Shooting a sleeping person "would be the exact opposite of what I would expect from Mr. McKinney."

Dr. Steven Gray, also a psychologist, testified for the prosecution. In preparation for his testimony, Dr. Gray had reviewed two presentence reports, a report prepared by Dr. McMahon, the raw data and results of tests performed by Dr. McMahon, and McKinney's school records. He had also interviewed McKinney in jail, in the company of one of his lawyers, for "an hour, hour-and-a-half." Dr. Gray had not spoken with Susan, Diana, or other family members. Dr. Gray testified, "I don't think there's enough evidence or diagnostic materials or work that's been done to conclusively diagnose [McKinney] as having Post-traumatic Stress Disorder." Dr. Gray's "tentative or provisional diagnosis" was "Antisocial Personality Disorder."

IV. Sentencing

The verdict forms submitted to McKinney's and Hedlund's juries asked only for general verdicts. The prosecutor had argued to the juries that they could find McKinney and Hedlund guilty of first degree murder either because they were guilty of actually killing Ms. Mertens or Mr. McClain, or because they were guilty of felony murder. At McKinney's sentencing hearing, the judge indicated that he believed that McKinney had shot Ms. Mertens and that Hedlund had shot Mr. McClain. But the judge recognized that the jury had not specifically found that McKinney had shot Ms. Mertens. The judge therefore relied on Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), to conclude that even if McKinney had not killed either Ms. Mertens or Mr. McClain, his involvement in the crimes leading up their murders nevertheless made him death-eligible. He said with respect to the murder of Ms. Mertens, "[E]ven if [Helund] had committed the homicide of Mrs. Mertens, [McKinney] knew that [Hedlund] at the time of entering the McClain residence was capable of killing."

When McKinney was sentenced, Arizona provided by statute a nonexhaustive list of five specific mitigating factors. See Ariz. Rev. Stat. Ann. § 13-703(G) (1993). Among the statutory mitigators was a modified form of diminished capacity, contained in § 13-703(G)(1): "The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution."

Arizona law also provided for nonstatutory mitigating factors, such as family background or mental conditions that did not rise to the level of impairment specified in § 13-703(G)(1). For a little over fifteen years, from the late 1980s until 2006, Arizona Supreme Court applied a "causal nexus" test to nonstatutory mitigation factors. Under this test, evidence of a difficult family background or mental disorder was not in and of itself a relevant nonstatutory mitigating factor. As a matter of Arizona law, such evidence was relevant for nonstatutory mitigation only if it had a causal effect on the defendant's behavior in the commission of the crime at issue. Application of the causal nexus test to nonstatutory mitigation factors violated Eddings, for it resulted in Arizona courts being entirely forbidden, as a matter of state law, to treat as a mitigating factor a family background or a mental condition that was not causally connected to a defendant's crime.

The trial judge sentenced McKinney to death. The judge weighed what he concluded were legally relevant aggravating and mitigating circumstances. He stated that "with respect to mitigation" he "considered" the exhibits that were admitted into evidence, and that he "did take . . . into consideration" the testimony of Susan Sestate, Diana McKinney, and Dr. McMahon. He stated as to McKinney's family history, "I agree that there was evidence of a difficult family history by the defendant. However, as I've indicated, I do not find that [it] is a substantial mitigating factor . . . ."

The judge accepted Dr. McMahon's PTSD diagnosis, but concluded that it was not causally connected to McKinney's criminal behavior. Twice the judge specifically addressed the relevance of McKinney's PTSD as a potential mitigating factor. Although the judge did not expressly so state, it appears (and we are willing to assume) that he was speaking both times in the context of statutory mitigation under § 13-703(G)(1). The judge gave McKinney's PTSD no weight as a mitigating factor.

The judge stated:
But I think more importantly than that, certainly not trying to dispute him as an expert on what all that meant, it appeared to me that Dr. McMahon did not at any time suggest in his testimony nor did I find any credible evidence to suggest that, even if the diagnosis of Post-traumatic Stress Syndrome were accurate in Mr. McKinney's case, that [it] in any way significantly impaired Mr. McKinney's conduct.

(Emphasis added.) He stated a short time (two transcript paragraphs) later:

[I]t appeared to me that based upon all these circumstances that there simply was no substantial reason to believe that even if the trauma that Mr. McKinney had suffered in childhood had contributed to an appropriate diagnosis of Post-traumatic Stress Syndrome that it in any way affected his conduct in this case.

(Emphasis added.) Nowhere else in his sentencing colloquy did the judge specifically refer to McKinney's PTSD and its possible mitigating effect.

The italicized language in two paragraphs just quoted echoes the causal nexus test of the statutory mitigating factor in § 13-703(G)(1). When applied solely in the context of statutory mitigation under § 13-703(G)(1), the causal nexus test does not violate Eddings. However, the italicized language also echoes the restrictive language of Arizona's causal nexus test applicable to nonstatutory mitigation. When applied in the context of nonstatutory mitigation, the causal nexus test clearly violates Eddings.

The Arizona Supreme Court reviews capital sentences de novo, making its own determination of what constitute legally relevant aggravating and mitigating factors, and then independently weighing those factors. Ariz. Rev. Stat. Ann. § 13-755; see also McKinney, 917 P.2d at 1225. The Arizona Supreme Court affirmed McKinney's death sentence. The Court addressed "the effects of [McKinney's] childhood, specifically the diagnosis of post-traumatic stress disorder (PTSD)." Id. at 1234. The Court agreed with the trial judge that there was no causal nexus between McKinney's PTSD and his crimes. Indeed, the Court went further, finding that McKinney's PTSD would have influenced him not to commit his crimes.

In sentencing McKinney to death, the Arizona Supreme Court gave no weight to McKinney's PTSD. It made no reference to statutory mitigation under § 13-703(G)(1). Instead, the Court recited its unconstitutional causal nexus test applicable to nonstatutory mitigation, citing the specific page of Ross on which it had articulated that test two years earlier. The Court wrote:

[T]he record shows that the judge gave full consideration to McKinney's childhood and the expert testimony regarding the effects of that childhood, specifically the diagnosis of post-traumatic stress disorder (PTSD). Assuming the diagnoses were correct, the judge found that none of the experts testified to, and none of the evidence showed, that such conditions in any way impaired McKinney's ability to conform his conduct to the law. The judge noted that McKinney was competent enough to have engaged in extensive and detailed preplanning of the crimes. McKinney's expert testified that persons with PTSD tended to avoid engaging in stressful situations, such as these burglaries and murders, which are likely to trigger symptoms of the syndrome. The judge observed that McKinney's conduct in engaging in the crimes was counter to the behavior McKinney's expert described as expected for people with PTSD. . . . [A] difficult family background, including childhood abuse, does not necessarily have substantial mitigating weight absent a showing that it significantly affected or impacted the defendant's ability to perceive, comprehend, or control his actions. See State v. Ross, 180 Ariz. 598, 607, 886 P.2d 1354, 1363 (1994)[.]

McKinney, 917 P.2d at 1234 (emphasis added).

V. Deference under AEDPA

McKinney's appeal is governed by AEDPA. Accordingly, we will not grant his petition for a writ of habeas corpus unless the state's adjudication of his claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). We review de novo the district court's decision whether to grant McKinney's habeas petition. Dyer v. Hornbeck, 706 F.3d 1134, 1137 (9th Cir. 2013).

Under the "contrary to" prong of § 2254(d)(1), a federal court may grant habeas relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" prong, a federal court may grant relief only if "the state court's application of clearly established federal law was objectively unreasonable, " id. at 409, such that "fairminded jurists could [not] disagree that" the arguments or theories that supported the state court's decision were "inconsistent with the holding in a prior decision of [the Supreme] Court, " Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks omitted).

For purposes of habeas review, we review the state court's "last reasoned decision." Dyer, 706 F.3d at 1137. We apply a "presumption that state courts know and follow the law." Visciotti, 537 U.S. at 24. "[Section] 2254(d)'s 'highly deferential standard for evaluating state-court rulings' . . . demands that state-court decisions be given the benefit of the doubt." Id. We "are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation." Bell v. Cone, 543 U.S. 447, 455 (2005); see also Early v. Packer, 537 U.S. 3, 8 (2002) ("[AEDPA] does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). We should neither engage in hyper-technical analysis nor require "formulary statement[s]" that ignore "the fair import of the [state court's] opinion." Packer, 537 U.S. at 9. Our task is to determine what standard the state court actually applied to resolve the petitioner's claim. See Lafler v. Cooper, 132 S.Ct. 1376, 1390 (2012).

VI. Clearly Established Law as Determined by the Supreme Court

The Supreme Court in Lockett v. Ohio, 438 U.S. 586 (1978), and in Eddings established a clear rule governing the role of mitigating evidence in capital sentencing. In Lockett, Chief Justice Burger wrote a plurality opinion concluding that Ohio's death penalty statute was invalid because it restricted the mitigating circumstances that could be considered by the sentencer. The plurality concluded that under the Eighth and Fourteenth Amendments, "the sentencer . . . [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death" because a rule preventing "the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." 438 U.S. at 604–05 (emphasis in original).

Four years later, in Eddings, the Court applied the principle articulated in Chief Justice Burger's opinion in Lockett. In Eddings, the sentencing judge had refused to consider evidence that Eddings had been raised in turbulent homes without supervision, had witnessed his mother's substance abuse, and had been beaten by his father. After "weigh[ing] the evidence of aggravating and mitigating circumstances, " the sentencing judge concluded that he could not, "in following the law . . . consider the fact of this young man's violent background." 455 U.S. at 108–09. Although the state appeals court acknowledged Eddings's family history and psychological and emotional disorders, it upheld his conviction because "all the evidence tends to show that [Eddings] knew the difference between right and wrong at the time he pulled the trigger, and that is the test of criminal responsibility in this State." Id. at 109–10. The Supreme Court endorsed the plurality opinion in Lockett and held that

[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. . . . The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.

Id. at 113–15 (emphasis in original).

The United States Supreme Court interpreted and applied the Lockett/Eddings rule in several other decisions prior to McKinney's sentencing in 1993 and the Arizona Supreme Court's affirmance in 1996. In those decisions, the Court reiterated its holding that the admission of relevant evidence is not enough to satisfy the Eighth and Fourteenth Amendments if the sentencer is prevented by state law from giving effect to that evidence. Because "full consideration of evidence that mitigates against the death penalty is essential if the [sentencer] is to give a 'reasoned moral response to the defendant's background, character, and crime, '" Eddings requires that "[t]he sentencer must also be able to consider and give effect to that evidence in imposing sentence." Penry v. Lynaugh (Penry I), 492 U.S. 302, 319, 328 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (quoting Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O'Connor, J., concurring in the judgment)). "[T]he State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant." McCleskey v. Kemp, 481 U.S. 279, 306 (1987); see also Skipper v. South Carolina, 476 U.S. 1, 4–5 (1986) (holding that even where mitigating evidence does "not relate specifically to . . . [the defendant's] culpability for the crime he committed, " the defendant is entitled to offer any evidence that "would be 'mitigating' in the sense that they might serve 'as a basis for a sentence less than death'" (quoting Lockett, 438 U.S. at 604)).

VII. The Causal Nexus Test and Its Application Here

A. Arizona's Test

The trial judge sentenced McKinney to death in 1993. The Arizona Supreme Court affirmed Kinney's conviction and sentence in 1996.

As briefly described above, Arizona capital sentencing law included a statutorily specified nonexhaustive list of five mitigating factors. See Ariz. Rev. Stat. Ann. § 13-703(G) (1993). Among the statutory mitigating factors was a modified form of diminished capacity, contained in § 13-703(G)(1): "The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution."

Arizona capital sentencing law also included nonstatutory mitigating factors, such as family background or mental conditions that did not rise to the level of impairment specified in § 13-703(G)(1). Beginning in the late 1980s, Arizona Supreme Court developed a "causal nexus" test for nonstatutory mitigation. Under this test, as we noted above, evidence of a difficult family background or a mental condition was not in and of itself relevant mitigating evidence. As a matter of Arizona law, such evidence was relevant for mitigation purposes only if it had some causal effect contributing to the defendant's behavior in the commission of the crime at issue. Thus, while the defendant could submit evidence of his difficult family background or mental condition, the sentencing court was prohibited from treating it as legally relevant mitigation evidence unless the defendant proved a causal connection between his background or disorder and the crime. In capital cases from the late 1980s to the mid-2000s, the Arizona Supreme Court repeatedly articulated this causal nexus test for nonstatutory mitigation. The test was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States" in Eddings.

In the immediate aftermath of Eddings, the Arizona Supreme Court had not yet developed its causal nexus test for nonstatutory mitigation. One year after Eddings, the Arizona Supreme Court understood and applied Eddings and Lockett correctly. In State v. McMurtrey, a capital case, the Court wrote:

[T]he sentencer may not refuse to consider, as a matter of law, relevant evidence presented in mitigation. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). . . .. . . If after considering the offered evidence, the court concludes that with respect to the defendant's mental condition, it merely establishes a character or personality disorder then the court may under [State v.] Richmond, [560 P.2d 41 (Ariz. 1976), ] conclude that the mitigating circumstance in [Ariz. Rev. Stat. Ann.] § 13-703(G)(1) does not exist. In order to remain faithful to Lockett and [State v.] Watson, [586 P.2d 1253 (Ariz. 1978), ] however, the court's inquiry may not end there. The court must consider the offered evidence further to determine whether it in some other way suggests that the defendant should be treated with leniency.

664 P.2d 637, 646 (Ariz. 1983); see also State v. Gretzler, 659 P.2d 1, 14 (Ariz. 1983).

By the late 1980s, however, the Arizona Supreme Court had begun to articulate and apply its causal nexus test to nonstatutory mitigation. In Wallace, decided three years before the trial judge sentenced ...


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