Leroy McGill v. David Shinn, 16 F.4th 666

Background

In July 2002 Leroy McGill set fire to his former housemate, Charles Perez; Perez died, McGill was convicted of first-degree murder and other counts and sentenced to death in 2004.
At the penalty phase defense presented mitigation (dysfunctional childhood, long-term methamphetamine use, a purported head injury, and an abusive/controlling girlfriend); defense retained neuropsychologist Dr. Lanyon (trial) and sought but did not present an addictionologist.
Post-conviction (PCR) litigation produced new experts and a PET scan; the PCR court held an evidentiary hearing but denied relief, finding counsel’s mitigation investigation and presentation reasonable under Strickland.
The district court denied McGill’s § 2254 petition but granted a COA limited to counsel’s penalty-phase effectiveness; Ninth Circuit applied AEDPA deference to the state PCR rulings.
The panel affirmed denial of habeas relief on the ineffective-assistance claim, denied a COA on the guilt-phase arson- expert claim, granted a COA on McGill’s Ex Post Facto challenge (murder occurred in the 38-day gap after Ring v. Arizona), but rejected Ex Post Facto relief on the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether AEDPA deference is due because the PCR court misapplied Strickland or made unreasonable factual findings	McGill: PCR court misapplied Strickland (failed to assess prevailing professional norms, imposed causal-nexus requirement, used subjective "court's view", ignored cumulative errors) and made unreasonable factual findings	State: PCR court correctly stated and reasonably applied Strickland; its factual findings were reasonable and supported by the record	Held: AEDPA deference applies; PCR court reasonably applied law and its factual findings were not objectively unreasonable
2) Whether counsel was ineffective at the penalty phase for investigation and presentation of mitigation (including handling of experts, addiction testimony, sexual‑abuse allegations, and prior armed robberies)	McGill: trial counsel failed to build rapport, secure/prepare experts, discover and present critical mitigation (addiction, childhood sexual abuse, nexus to prior robberies)	State: defense presented substantial mitigation; tactical choices (not calling Beckson, withholding certain records from Dr. Lanyon) were reasonable; new PCR evidence would have been cumulative or contradictory	Held: Counsel’s performance was within prevailing norms; no Strickland deficiency shown, so prejudice not reached
3) Whether counsel was ineffective at the guilt phase for failing to retain an arson expert	McGill: absence of arson expert left state’s "styrofoam/napalm" evidence unrebutted and may have affected cruelty aggravator	State: factual dispute existed (state experts found no styrofoam evidence); retaining an arson expert unlikely to change verdict or aggravator finding	Held: COA denied — claim not substantial; reasonable jurists would not debate that counsel’s choice was objectively reasonable
4) Whether McGill’s death sentence violated the Ex Post Facto Clause because his crime occurred during the 38‑day interval after Ring v. Arizona but before Arizona amended §13-703	McGill: at time of offense there was no valid implementing statute permitting imposition of death; retroactive effect of legislature’s later fix violates Ex Post Facto Clause	State: change was procedural (allocation of factfinding between judge and jury); §13-1105 placed defendant on notice death was an available punishment; Dobbert/Collins control	Held: COA granted (debatable issue), but on merits court held Arizona’s Supreme Court reasonably applied precedent (Dobbert, Collins); Ex Post Facto relief denied (majority). Judge M. Smith dissented on Ex Post Facto ground.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)
Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA unreasonable-application framework)
Harrington v. Richter, 562 U.S. 86 (2011) (deference under AEDPA; unreasonable application standard)
Wiggins v. Smith, 539 U.S. 510 (2003) (prejudice/reweighing mitigation evidence under Strickland)
Ring v. Arizona, 536 U.S. 584 (2002) (Sixth Amendment requires jury finding of aggravating circumstances)
Dobbert v. Florida, 432 U.S. 282 (1977) (procedural changes to sentencing do not necessarily violate Ex Post Facto Clause)
Collins v. Youngblood, 497 U.S. 37 (1990) (ex post facto analysis distinguishing procedural/substantive changes)
Browning v. Baker, 875 F.3d 444 (9th Cir. 2017) (COA scope for ineffective-assistance claims at a given phase)
Martinez v. Ryan, 566 U.S. 1 (2012) (excusing procedural default where PCR counsel was ineffective)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for COA and unreasonable factual determinations under AEDPA)