*1 for viding for termination an alien who Ms. Gutierrez has not shown denial of other “has committed act that would procedural process pro- due because her grounds denial have been for of withhold ceedings fundamentally were not unfair 241(b)(3)(B) section ing of removal under and further proceedings would not have prior of the Act had it occurred changed petition the outcome. The for removal.”); grant of withholding of see review DENIED. is Gonzales, 500 Miguel-Miguel also v. (9th Cir.2007) (accepting At strong
torney presumption General’s trafficking
all are drug particular offenses crimes).
ly serious
Finally, assertion Ms. Gutierrez’s process should follow a two-step DHS of holding separate hearing first on ter McKINNEY, James Erin Petitioner- considering request mination before her Appellant, is relief the CAT not well taken. by Such a proceeding
regulations and would not led have RYAN, Respondent- L. Charles Holder, different result. In Zetino v. Appellee. (9th Cir.2010) (en banc), F.3d 1007 grant reiterated for the relief No. 09-99018. by on a of a of due process claim denial Appeals, United States Court of “(1) BIA, petitioner must show Ninth Circuit.
proceeding fundamentally was so unfair prevented the alien was from reason Argued Dec. Submitted case, (2) ably presenting alien Filed Sept. prejudice, demonstrates which means may the outcome of the proceeding have
been alleged affected violation.” (quoting
Id. at 1013 Ibarra-Flores Gon
zales, (9th Cir.2006)). 620-21 proceedings
Ms. not fun Gutierrez’s were
damentally Moreover, unfair. has not she
proffered any that might evidence have
justified terminating the IJ not her with
holding of removal. (1) conclude that: file a
We DHS Appear subject
Notice to an alien when removal; (2) withholding an extant separate hearing
there need not be a (3)
the termination withholding;
government has the burden demonstrat-
ing by preponderance grounds for the termination with- (4)
holding; government met its bur- by submitting
den official state records (5) convictions;
Ms. Gutierrez’s state
court’s denial of his U.S.C. 2254 habe- corpus petition. The Arizona state court sentenced to death on each of two first-degree counts of murder for the 1991 killings Christene Mertens and Jim McClain. affirm We the district court. opinion we address three claims (1) petition:
raised McKinney’s the trial trial; (2) juries court’s use of dual leg trial court’s security use of a brace as a (3) trial; during measure whether the sentencing judge properly considered all Ohio, mitigating evidence under Lockett v. 438 U.S. S.Ct. L.Ed.2d 973 (1978), Oklahoma, and Eddings v. 455 U.S. (briefed K. argued) Ivan Mathew (1982).1 L.Ed.2d 1 (briefed), T. and Susan Mathew Mathew & McKinney failed to exhaust each of these *5 Associates, Phoenix, AZ, for Petitioner- except claims juries one of several dual Appellant. claims and Lockett/Eddings claim. Anderson, G. Attorney Jon Assistant proee- unexhausted claims are General, Division, Capital Litigation Phoe- durally defaulted, because he would now AZ, nix, for Respondent-Appellee. raising barred be from them to the Ari- Stewart, Beaty
zona state courts. See v. (9th Cir.2002) (citing 32.2(a)). Ariz. R.Crim. P. As to the re- claims, maining the Arizona deny Court’s decision to relief was not WARDLAW, Before: KIM McLANE to, contrary nor an unreasonable applica- BEA, T. RANDY CARLOS and N. of, clearly tion established federal law or SMITH, Judges. Circuit on an based unreasonable determination of the facts before court. See 28 U.S.C. SMITH; Opinion by Judge N.R. Partial 2254(d). § by Judge Concurrence and Partial Dissent WARDLAW. FACTS AND PROCEDURAL HISTORY
OPINION Background2 A. SMITH, Judge: N.R. Circuit 28, 1991, February McKinney On McKinney, Petitioner James Erin brother, state prisoner, appeals Arizona the district his half co-defendant Michael Wood, 2253(c); McKinney raises other uncertified claims on Hiivala 1999) (9th curiam). appeal. (per Because has not shown 1102-04 Cir. district court's resolution of the other amongst jurists claims is "debatable of rea- substantially 2. These facts are drawn from the son,” Cockrell, 322, 336, Miller-El v. opinion Court's in State (2003), 123 S.Ct. McKinney, L.Ed.2d 917 P.2d 185 Ariz. (1996) (en banc), expand appealabil- superseded by decline to certificate 1218-19 stat- ity grounds review See 28 U.S.C. ute on other as stated in State v. claims. penetrat- as “a string in a certified cause of death Hedlund, the first committed Before burglaries. gunshot contact wound to the head.” five residential McKinney and Hedlund burglary, first ransacked the house and stole Defendants “Defendants”) driving were (collectively, in cash. $120 Morris and Joe car with Chris Hedlund’s the fifth burglary Defendants committed targets. Lemon, discussing potential at the home and second murder of Jim gun, McKinney stated that Brandishing his McClain on March 1991. Defendants anyone they found at he would shoot McClain, knew because Hedlund had burglaries. Hedlund said during the home a car him about six months bought anyone that he encoun- beat that he would before the murder. McClain’s house was in the head. tered burgla- the course of the during ransacked time, had learned At the Defendants ry, and he was shot the back the head and Lemon Christene from Morris sleeping. pocket while Defendants stole of dol- supposedly kept thousands Mertens watch, three car. handguns, McClain’s orange juice container her in an lars later to sell the Defendants tried stolen Therefore, Defendants and refrigerator. guns. burglarize and Lemon intended Morris night home on the first Mertens’s on two was tried counts spree. Mertens came burglary murder, degree burgla- counts of first two burglars home and scared the would-be theft, ry, one count of and one count of result, As a the four of them chose away. attempted theft. The trial court tried De- but ob- burglarize, house different together, empaneled separate fendants but burglary. nothing of value from the tained juries to decide of each guilt Defen- night, McKinney, Hedlund, The next The trial both dant. Defen- burgla- committed two more and Morris to wear as a leg security dants brace *6 McKinney Lemon was not involved. ries. throughout trial. McKinney’s measure revolver, stole a .22 and Morris twelve him jury guilty charges, except found of all dollars, pennies, apron, some wheat a tool attempted charge. theft The trial watch—splitting “pro- Rolex and a McKinney to judge sentenced death on ceeds” with Hedlund after crimes. degree first conviction. each murder State homeowner home dur- When the returned 567, McKinney, 1214, v. 185 Ariz. 917 P.2d McKinney burglary, the third (en (1996) banc), superseded by 1218 stat- away, leaving ran the homeowner Morris grounds on other in ute as stated v. State However, burglary, unharmed. after the Martinez, 451, 795, 196 Ariz. 999 P.2d 806 McKinney remarked that he and Morris (2000) (en banc). stayed [McKinney] “should have have shot [the homeowner].” would proceedings B. Post-conviction 9, 1991, Hed- On March Supreme The Arizona Court upheld for lund returned to Mertens home McKinney’s convictions and sentence on burglary. they fourth When entered the appeal. McKinney, 917 direct P.2d at residence, Defendants found Mertens home alone and attacked her. After the challenged thereafter his con- gunshot Mertens had attack both stab post-conviction examiner in wounds. the medical victions sentence 795, Martinez, 451, by convincing 196 Ariz. 999 P.2d 806 rebutted clear and evidence. (en banc). (2000) presume 2254(e)(1). the correct- § We 28 U.S.C. See findings the Arizona ness of court’s unless
909
Maricopa
of
proceedings.
collateral
nation
light
facts
the record
(the
County
2254(d)(2).
superior
court,
court
“State PCR
before the state
Court”)
none
concluded that
of the claims
—
Richter,
Harrington
U.S.-,
131
McKinney’s operative petition
for
raised
770, 785,
(2011)
warrant
further
The State
The “only definitive source of
summarily
Court
peti-
PCR
dismissed the
clearly established federal
law under
McKinney appealed
tion.
the dismissal of
(as
AEDPA is the holdings
opposed to the
the PCR
Petition to
dicta)
Court as of the time
Court, which
review on
denied
all claims
of the state court decision.” Clark v. Mur
relevant to
appeal.
(9th
phy,
1062,
Cir.2003),
Thereafter, McKinney raised 26 claims
on other grounds by Lockyer
overruled
petition
in his
corpus
for writ
habeas
to Andrade,
63,
538 U.S.
123 S.Ct.
U.S. District
Court
the District of
(2003).
L.Ed.2d
If
Arizona. The
court
district
denied relief on
give
“cases
clear
question
answer
a number of
these claims
2006 and on
presented,
...
it cannot be said that the
remaining
In
claims
its order
state
unreasonably applied
court
clearly
relief,
denying
a
granted
district
established Federal
Wright
law.”
v. Van
(“COA”)
appealability
certificate of
on the
Patten,
552 U.S.
128 S.Ct.
issues whether the trial court’s
use
(2008) (internal
quotation
L.Ed.2d 583
juries or
leg
dual
a
violated
brace
McKin-
“
omitted).
words,
marks
In other
‘[i]t is
ney’s rights. The district court denied a
not an
application
clearly
unreasonable
remaining
COA the
issues.
established Federal
law for
state court to
apply
specific legal
decline to
rule that
STANDARD OF REVIEW
squarely
has not
been
established
[the
de
“We review
novo the district
” Richter,
Supreme Court].’
131 S.Ct. at
grant
deny
court’s decision to
a petition
(quoting
Mirzayance,
Knowles v.
corpus.”
for writ of habeas
Rhoades v.
111, 122,
129 S.Ct.
173 L.Ed.2d
(9th Cir.2010).
Henry, 598 F.3d
(2009)).
The Antiterrorism and
Death
Effective
petitioner
cases where a
iden
(“AEDPA”)
Penalty Act of
*7
governs
1996
clearly
tifies
federal
established
law and
case.
Murphy,
See
v.
Lindh
521 U.S.
challenges
application
state court’s
of
320, 336-37,
117 S.Ct.
138 L.Ed.2d
law,
our task under AEDPA is not to
(1997);
Schriro,
Lopez
481
v.
a
ap
decide whether
state court decision
(9th Cir.2007).
petitioner
1036-38
A
plied
correctly.
the law
See id. at 785.
must overcome a high threshold to obtain
Rather, we must decide
whether
state
under
relief
AEDPA:
applied
reasonably.
court decision
the law
Federal
grant-
habeas relief
not be
(“
application
See id.
unreasonable
‘[A]n
2254(d)
§
for
subject
ed
claims
unless
of
law is
from an
federal
different
incor
it is shown that the earlier state court’s
”
law.’
application
rect
of federal
(quoting
contrary
decision was
to federal
law
362, 410,
v. Taylor,
Williams
529 U.S.
120
clearly
holdings
then
established
(2000))).
2254(d)(1);
Court,
S.Ct.
910 Thereafter, a jurists hearing the trial court held could dis- fairminded possibility
no
juries.
con-
op-
court’s decision
of dual
The State
that the state
on the use
agree
prece-
perceived
Court’s]
on a
posed
practice
[the
flicts with
based
Id.
forth in
dents.”
state
obstacle set
State
procedural
138 Ariz.
DISCUSSION (1983) (en banc), Hedlund overruled Sheldon, Ariz. P.2d 1008 840 Claims I. Dual Juries (1992) (en banc). McKinney shared the McKinney raises number of Lambright argued State’s concern trial use of on the court’s claims based for the court to improper it would be However, McKinney exhaust juries. dual jury procedure. employ an untested dual courts, as in the state only one of them ed argued also severance was claim that the use requires—his AEDPA of im- to avoid introduction court juries prejudicial to a of dual led testimony permissible, incriminating facing sat layout where room States, Bruton v. United 391 U.S. trial. jurors throughout (1968). 1620, L.Ed.2d fails, he layout” claim because “courtroom identify clearly established has failed to court that the use The trial concluded provide the basis law that would federal juries impede would not Defen- dual 2254(d)(1). McKinney relief under trial, fair found right dants’ potential of the other failed to exhaust juries. use of dual prejudice inherent juries claims and would now be dual trial, juries At both Defendants’ were claims in state raising these barred courtroom, present except during in the (citing Beaty, court. See reading charges, opening “the state- 32.2(a)). Accordingly, Ariz. P. R.Crim. ments, closing arguments, testimony juries dual claims are McKinney’s “other” particular inculpa- related to defendant’s defaulted,4 and he has procedurally tory during statements.” Both before and or to excuse the prejudice shown cause trial, the trial court reminded counsel to id. default. See preserve integrity the dual jury procedure eliciting testimony and to avoid procedural history Background A. against non-admissible the other codefen- trial, moved to sever his Before Hedlund dant under Bruton. McKinney’s, and the did case from State trial, McKinney challenged the Before The trial court oppose motion. juries in a use of dual action to the special motion to The initially granted the sever. Hedlund, Appeals. See parties trial later for brief- court asked juries. appeals at 1009. using on the idea of dual P.2d The court if, requires raising petition- exhaustion doctrine claims in state claims, provide oppor- courts with applicable er to the state comply he fails to with tunity federal to rule on his constitutional procedural Thomp- rules. *8 state Coleman presenting these to a claims before claims son, 722, 730-31, 111 S.Ct. 501 King Ryan, federal habeas court. See 564 (1991). 115 state can L.Ed.2d 640 The suc- Cir.2009); (9th F.3d 28 U.S.C. cessfully procedural a default assert defense 2254(b)(1) (proving that a writ habeas prisoner habeas review unless the federal corpus granted appli- not unless “the shall be procedural can "cause” show both for exhausted the remedies available in cant has prejudice, prisoner and actual or the default State”). the courts of consider demonstrates failure in a miscar- claims will result fundamental prisoner procedurally A feder- 4. state defaults riage justice. Id. 2546. al claims if he them fails to raise as federal reversed, layout” ex- holding that trial court B. “Courtroom claim authority ceeded its McKinney exhausted “court his and the Ari- Rules Criminal Procedure layout” room “To claim. exhaust his Ari Supreme zona Court’s decision Lam- remedies, give zona petitioner [a must] bright Id. The Arizona Court Arizona courts a fair act opportunity to court of and affirmed his federal due appeals process pre reversed the claim before senting to the federal courts.” Castillo juries. use dual the trial court’s decision to McFadden, (9th 399 F.3d Cir. Id. at 1011. 2005) (internal omitted). quotation marks appeal On direct of his conviction and In doing, petitioner so a apprise must sentence, McKinney claimed that the dual state court that he is a “making claim juries layout caused courtroom “with Constitution, under the U.S. and describe jurors, facing Defendants intim- [to be] operative both the facts and federal idating resulted in fundamental error legal theory on which claim [the] ” (internal requiring McKinney, reversal.” 917 P.2d based.... Id. at 999 quotation omitted). The Arizona re- marks and citation can This be accomplished by citing “specific provisions jected argument, concluding this of the federal or ... constitution federal or McKinney prejudice could demonstrate legal state cases involving standard for provided authority for “a constitu- a federal constitutional violation.” Id. a right tional American standard court- ‘general appeals “Mere to broad constitu room arrangement.” Id. tional principles, such as due process, raised McKinney layout” the “courtroom equal protection, right and the to a fair again issue in his PCR Petition. The trial,’ do establish exhaustion.” Id. Wood, rejected McKinney’s State PCR Court ar- (quoting Hiivala v. (9th Cir.1999) curiam));
gument (per also layout see courtroom “taint- Waddington, Fields v. proceedings. McKinney ed” the ar- also (9th Cir.2005) (holding that a petitioner gued in the PCR Petition that the use of federal process failed to exhaust a due juries the dual his a “right violated petitioner’s claim briefing where fundamentally fair trial” number state court mentioned the federal constitu other McKinney reasons. did once). tion twice only process only and due Constitution, not invoke the U.S. nor did short, petitioner must “alert the state he cite to state or federal cases. asserting courts to the fact that he [is] McKinney raised the “courtroom same claim under the United States Constitu layout” Hiivala, petition. claim his federal habeas tion.” F.3d at McKinney also made a number of other forth set the “federal arguments that the juries use of dual legal theory” underlying prejudicial his prejudiced right fair to a trial. The layout opening courtroom claim his brief federal district addressed each sub- to the Arizona Court. part McKinney’s juries dual claim. Of prejudicial claimed: “The bizarre and seat those, the district court concluded that ing arrangement deprived appellant of only McKinney’s layout” “courtroom claim process due under the Arizona and Feder “arguably even exhausted in state al of con Constitutions.” briefs table however, Despite conclusion, court.” page containing tents also cites the *9 rejected the district court all of McKin- entry under for “Fifth sentence its ney’s arguments argu- on together, the merits. Amendment.” Taken to in federal of the dual of contents allude use and the table
ment
fair trial.
juries
right
U.S. Constitution.
him his
to a
specific provision
denied
McKinney’s
also invokes
U.S. McKinney
juries preju-
brief
the dual
claims
(1)
times in reference
him,
numerous
Constitution
pre-
diced
because:
Defendants
McKinney’s
Accordingly,
to other claims.
defenses, which led to
antagonistic
sented
to
the Arizona
was
alert
brief
sufficient
leading questions, limited cross-
prejudicial
McKinney
raised a
Supreme Court
examination,
violations; and
and Bruton
Schriro,
Robinson v.
federal claim. See
(2)
increased
procedure
necessitated
Cir.2010) (“This
(9th
1086, 1103
is
595 F.3d
security
during
of a leg
and the use
brace
failed
petitioner
to
not a case where
McKinney
argues
trial.
State
a federal
invoking
clear
he was
make
by fail-
procedurally defaulted these claims
petitioner’s general
right, or
where
to
them to the state
fairly present
guarantee
to
was
appeal
a constitutional
agree.
court. We
court on notice
vague
put
too
to
the state
(internal
of the
claim.”
citations
federal
McKinney
1.
failed
exhaust his
Hiivala,
omitted));
marks
quotation
layout claims.
“other” courtroom
Thus,
conclude that
195 F.3d
1106.
we
Supreme
Court
lay-
his
McKinney
“courtroom
exhausted
briefing
operative
did not set forth the
out” claim.
legal theory
any
facts or
for
dual
federal
to the merits of McKin
Turning
juries claim
“courtroom
apart
claim,
layout”
ney’s “courtroom
must
layout” claim. The same
true of the
Supreme
the Arizona
determine whether
PCR Petition. While
PCR Petition
rejecting this claim
Court’s decision
general appeal McKinney’s
makes a
to,
contrary
application
an unreasonable
trial,”
“fair
right
process”
“due
and a
of, clearly
law.
established federal
We
this is insufficient to
See Castil-
exhaust.
not.
conclude that it was
cites
lo,
998; Hiivala,
913 McKinney’s ju- preme unexhausted dual Court made clear that the exception 2. procedurally de-
ries claims are applies only when underlying constitu- faulted. tional claim is ineffective assistance of trial Thus, McKinney Id. counsel. cannot show
“A de procedurally claim juries his dual proce- cause and claims are petitioner faulted ‘if the failed to exhaust durally defaulted. court to state remedies and the which
petitioner
present
would be
to
his
“Shackling”
II.
Claim
meet
claims
order to
exhaustion
requirement would now find the claims McKinney failed to exhaust his “shack-
” Beaty,
barred.’
at
procedurally
303 F.3d
ling”
McKinney
claim. Because
would
(quoting
Thompson,
Coleman v.
501
987
now
from bringing
be barred
the claim in
1, 111
115
U.S.
735 n.
S.Ct.
court,
state
Beaty, 303 F.3d at
(1991)). McKinney’s
L.Ed.2d 640
dual
procedurally
claim is
defaulted. McKin-
defaulted,
claims
jury
procedurally
are
be
ney
failed to
and prejudice
has
show cause
cause he is barred “under Arizona law to overcome the default.
Id.;
going back
court.”
see
to state
32.4(a).6
32.2(a),
also Ariz. R.Crim. P.
Background
procedural
A.
history
“Nonetheless, we will
review
court required
The trial
McKinney
both
if [McKinney]
merits
can show
cause
to
leg
Hedlund
wear a
brace during
or,
prejudice
alternatively, a fundamental
rejected
trial.
trial court
The
Defendants’
miscarriage
justice.” Beaty,
at
303 F.3d
objections to
use of
leg
numerous
McKinney
987. While
mentioned these ex braces. The trial court reasoned that the
ceptions
briefing,
argu
his
he made no
jurors
close
proximity
Defendants’
they apply
proce
ment
excuse the
staff,
court
the violent nature of the
juries
default
At
dural
of his dual
claims.
crimes,
McKinney’s previ-
and evidence of
argument,
asked
he
oral
when
whether
ous escape attempt
subsequent
and a
es-
cause, McKinney argued
could show
cape plot
extra security
warranted the
he could establish cause under Martinez
measures. The trial court later asked the
— U.S.-,
Ryan,
S.Ct.
specific
State
make a
record of
(2012).
L.Ed.2d
invoca-
security
Although McKinney’s
concerns.
suggests
McKinney
tion Martinez
motion
silent
for
new trial
on this
argues that the ineffective
assistance of
issue,
“shackling”
Hedlund raised the
issue
counsel
PCR
constitutes cause to over-
phase. Similarly,
at
post-trial
McKin-
procedural
default of
come
his other
ney
“shackling”
did
raise
issue to
juries
However,
dual
claims.
it is well-
on direct ap-
settled that ineffective assistance of PCR
peal.
did
Hedlund
raise the
counsel does not establish cause. See
claim,
rejected.
McKinney,
which
See
Coleman,
753-57,
S.Ct.
1222-23.
also
P.2d at
failed
While Martinez created a
“narrow
raise the issue
his PCR Petition.
rule,
to this
exception”
the Martinez
does not
district
noted
exception
apply
McKinney's
juries
dual
Su-
“shackling”
claims. The
did not raise the
issue on di-
petition.”
appeal
prior
PCR
Arizona Rules
of Criminal
Procedure
direct
in a
32.2(a)
32.4(a)
provide
(9th
alternate bases
Henry
Ryan,
our conclusion that
would
claims
Cir.2013).
untimely
Rule 32.4 bars
claims.
32.2(a)(3) precludes
be
now
barred. Rule
See,
Beaty,
e.g.,
rect (9th Cir.2005); ro, see 426 F.3d McKinney’s argu- rejected court district Lewis, 80 F.3d also Martinez-Villareal de- Supreme Court that the Arizona ment (9th Cir.1996) (“Under Arizona of its “fundamental part cided the issue as law, review does not error fundamental However, rather than de- review.” error preclu- subsequent prevent procedural proeedurally de- was cide that claim sion.”). faulted, court denied the claim the district meritless. proeedur- is now This unexhausted claim barred, ally McKinney would be because “shackling” McKinney’s claim is
B.
raising
to the state court.
it
barred
proeedurally defaulted.
987;
also Ariz.
see
Beaty,
“shackling”
claim
McKinney’s
32.2(a),
Further, McKin-
R.Crim. P.
32.4.
exhausted,
failed
it
he
to raise
because
ney
argument
not
for “cause” to
makes no
in
Court or
the Arizona
Although McKinney
excuse the default.
jury
the dual
prejudice
Petition. As with
arguments
PCR
numerous
makes
claims,
reject McKinney’s argument
support
he
not
these
injustice,
does
by
claim
exhausted
virtue
arguments
with citations
evidence
Thus,
direct
See
raising
appeal.
McKinney’s
it on
in
“shack-
Hedlund
the record.7
Williams,
also ling”
proeedurally
B.
evi-
mitigating
relevant
weight
given
unrea-
to be
the Arizona
Lockett/Eddings.
weight
it no
sonably
they may
give
applied
dence. But
from their con-
by excluding such evidence
Lockett,
Supreme Court
In
113-15,
to exclude evidence (1991))). 731, 112 addition, In L.Ed.2d 812 contrary to Smith. Tennard and the record shows that the trial court’s Eddings commitment more than case, courts did semantic—the trial genuinely mit- any McKinney’s exclude improperly weighed persua evidence’s Further, igating evidence. the Arizona judge expressly sive The trial value. cred did not employ courts unconstitutional abuse, ited the of childhood de Thus, test. the Arizona nexus scribing “beyond comprehension it as sen- Court’s decision to affirm to, contrary understanding people most was not nor an unrea- who tence of, grown application clearly up sonable established have not under those circum federal law. accepted, stances.” The trial court also purpose sentencing, for the Dr. McMa All con- evidence was *14 Further, diagnosis. hon’s PTSD even Eddings. sidered as court the possible when the discussed link Supreme did McKinney’s
The Arizona Court between PTSD and the Eddings crimes, not violate it that when concluded the record it shows that considered court all mitigation the trial considered the weighed all the evidence and the evi evidence before it. The Arizona probative dence’s value. The trial judge clearly applied and the Court understood stated: controlling Supreme precedent. Court See I it Dr. interesting found McMahon also
McKinney, 917 at 1227. It P.2d conclud techniques—or indicated that one of the judge “[T]he ed: considered the manifestations of Post-traumatic impact abusive childhood and its on his Syndrome might expected Stress that be ability and conform behavior to his conduct depressed, were that the be individual found it insufficiently mitigating appears withdrawn. It to me would be leniency.” (emphasis call for Id. attempted that defense demonstrate added). did Arizona presentation mitigating that in their say that the or not evidence irrelevant such an circumstances and that individu- could be considered.11 Id. expect al would to avoid contacts which either or would exacerbate recreate the reject McKinney’s
We
and the dis
bring
on this type
trauma
would
implication
the
sent’s
Arizona Su
yet,
And
stress from childhood.
rather
preme
merely paid
Court’s
ser
lip
decision
than continue to avoid
of these cir-
trial
Eddings,
judge
vice to
and the
did
homicide,
cumstances after the Mertens
actually
ini
consider the evidence. As an
matter,
thoughtful,
it
that the same
re-
appears
tial
the trial court’s certification
into, then,
mitigation
planning
it
evi-
went
considered all
flective
See, e.g.,
pre-dating
contemporane-
mitigating
all
evidence.
State v.
11. Other cases
with
ous
also demonstrate that
Towery, 186 Ariz.
P.2d
310-11
Gonzales,
banc);
Court was well-aware of
(1996) (en
State v.
181 Ariz.
Lockett/Eddings
require-
cases and the
line of
(1995) (en banc).
P.2d
sentencing
fully
ment
consider
Ryan,
Poyson
See
v.
711 F.3d
target
to both the
state.
of a known
burglary
(9th Cir.2013).
co-defendant,
Mr.
defendant
McClain.
Similarly,
passages
the dissent overlooks
transcript
sentencing
portions of
sentencing
clearly
Other
stated
where
judge’s
delibera-
similarly demonstrate
“all
that he
of the
considered
considered the PTSD
process as he
Contrary
tive
to the dissent’s
circumstances.”
against
it
the other
weighed
view,
evidence
we do not fail
take into account
analysis
This careful
presented.
sentencing
the difference between the
testimony contradicts
Dr. McMahon’s
judge’s treatment of
other
claim that
the dissent’s
mitigation evidence. There is
differ-
excluded the evi-
sentencing judge
clearly
The record
ence
treatment.
it,
mat-
dence,
consider
as a
or refused to
sentencing
judge’s
shows
deliberation
law.12
ter of
piece mitigation
as he considered each
Thus,
evidence.
the record as a whole
selectively quotes pas
The dissent
that the Ari-
contradicts the dissent’s view
transcript
sentencing
sages from the
rejected
zona state courts
the PTSD evi-
Arizona state courts did not
argue
law.
dence as matter of
evidence of PTSD.
properly consider
problems
are
with
dissent’s
There
two
Because the record shows that the sen
First,
it reads
much
too
into
approach.
tencing judge
potential
considered all the
notably
passages,
evidence,
certain
reject McKinney’s
psychological
judge’s discussion
number
and the dissent’s reliance on a
Contrary
Exhibit
study
See,
submitted
past
granting
e.g.,
our
cases
relief.
view, nothing in the
(9th
sentenc
the dissent’s
Ryan,
Cir.
Williams
judge’s
of PTSD shows that
2010);
Schriro,
discussion
Styers v.
(9th
“irrelevant” as matter
Cir.2008);
he believed was
Lambright
1035-36
*15
most,
(9th
At
the discussion
PTSD Schriro,
Cir.2007).
of law.
1103, 1115
490 F.3d
sentencing judge
that
the
shows
Those
to in
provide
guidance
cases
little
mitigation
effect in
equivocal about what
example,
our AEDPA review.
in
form
For
diagnosis
Williams,
should have. This
the
granted
we
relief under Lock
that
the sen
strengthens
However,
the conclusion
ett/Eddings.
unlike the state
judge
the
and
tencing
here,
considered
evidence
courts
the state courts in Williams
it.
simply
did not
even
mitigating
exclude
that
held
evidence “could
judge
if
some ambi
sentencing
created
be
factor
mitigating
not
considered as
(internal
by “thinking
in the
out loud”
guity
any
record
kind.”
without
nexus to the
state courts are free to consider a nexus to
gave
...
such
minim[i]s
evidence de
weight
give
determine the
mitigation
weight”).
Schad,
(“The
evidence. See
See id. a clear in the indication weight given much proffered should be applied record the state court *16 standard, wrong mitigating factors is a cannot the matter within the we assume Eddings’s sentencing courts violated sound judge.” constitutional discretion the mandates.”); Lopez, see at also Id. at We that concluded these were argues 13. The dissent that sentencing judge’s the Arizona Su- sion the demonstrates deli- preme sentencing that Court’s conclusion the process—his weighing berative of the evi- “gave judge McKinney's full to” consideration dence. There would have little been need to evidence, McKinney, PTSD see P.2d "talking” diagno- do so much about PTSD 1234, was based on an unreasonable determi- planned it sis if he to exclude as a matter of 2254(d)(2). of fact nation The dis- Further, law. the record that demonstrates argues sentencing judge sent also that the sentencing judge that the assumed accepted diagno- never Dr. McMahon's PTSD Nothing diagnosis was true. sis, PTSD, finding nor made a which taint- sentencing judge particular finding to make a Supreme ed the Arizona Court’s review. accurate, diagnosis was because the above, As demonstrated the record contra- adequately that record shows he was able arguments. both dicts As the dissent ac- weigh by assuming evidence that it knowledges, sentencing judge "the quite did a true. ” talking bit about PTSD.... This discus- Poyson, of error. See presumption Id. at a the law.” statements “correct Any presumption at 1099. such “a F.3d ruling that affirmed also 944. We here, be- inappropriate always especially would be is not background family difficult Supreme Court’s deci- Arizona cause the mitigating a weight as great entitled apply it not clear that did sion makes circumstance,” the defendant and “where nexus test.14 unconstitutional family background his to connect fails conduct, trial could criminal his Arizona much of the McKinney makes Id. at weight or value.” little or give it Ross, citation to State v. Supreme Court’s 944-45. (1994). In 886 P.2d 180 Ariz. Ross, stated Supreme Arizona Court Towery, the Arizona Su- Here, like background is not family difficult “[a] that “a difficult concluded Court preme ‘a circumstance unless mitigating childhood relevant including background, family something in that show that defendant can necessarily have substan- abuse, not does impact or background had an effect showing weight absent tial beyond the defendant’s that was behavior impacted or significantly affected ” added) (emphasis at 1363 control.’ Id. compre- ability perceive, the defendant’s Wallace, 160 Ariz. McKinney, (quoting State hend, actions.” control his (1989)). McKinney ar- P.2d Arizona Su- 773 P.2d at 1234. While Supreme Arizona Court’s gues that ultimately decided preme Court it held citation to Ross demonstrates mitigating evi- weight of the cumulative un- irrelevant and leniency, the court not call for dence did it for its lack constitutionally excluded weight as- conclusion on the based this nexus to the crime. Nothing causal mitigating factors. signed to Arizona Su- suggests that the record just reject argument, as we We other- outrightly rejected, or Court preme argument Towery, rejected a similar consider, factors fully those not wise did sup- Supreme the Arizona Court where Ac- the crime. a lack of nexus to due to a citation to its decision with Wal- ported Supreme Court did cordingly, the Arizona Towery, 673 F.3d 946. While lace. See test an unconstitutional nexus apply (and, by Towery court deemed Wallace court’s it affirmed when Ross) extension, “constitutionally sus- weight over the of discretion exercise analysis. this does not end See pect,” that it assign the evidence considered. review the record McKin- id. must We whether the sen- ney’s case to determine argument reject the dissent’s We Arizona tencing court and the apply- cases Arizona Court other actually applied the unconstitutional nexus test demon- ing an unconstitutional For the reasons stated test. See id. Supreme Court the Arizona strate above, conclude that Su- have for- in this case. We “followed suit” apply an unconstitu- preme Ari- Court did argument that “the merly rejected the test, notwithstanding the cita- nexus use of an tional zona Court’s historical *17 Thus, McKinney has failed to Ross.15 creates tion causal nexus test” unconstitutional Supreme Arizona Court case 15. At least one reject the dissent’s view that 14. We also (as McKinney recognizes Arizona distinct from the after court decided Court) impermissibly applied a Supreme "weighing” mitigat- McKinney discussed above, the test. As discussed evidence, causal nexus notwithstanding McKinney's ing ci- sentencing court clear that the record makes Greene, 192 See State Ariz. tation to Ross. of exclude evidence due to lack did not (1998) (en banc). 118 967 P.2d crime, any other to the or for causal nexus reason. contrary to ... established Supreme clearly Arizona Federal to establish law, trial court uphold by Supreme decision as determined Court’s Court to, contrary appli- or an unreasonable was of the United States.” U.S.C. of, Lockett/Eddings. cation 2254(d)(1). Further, § the Arizona Su- preme Court’s characterization of the sen-
CONCLUSION tencing judge’s was factually decision inac- properly The district court denied relief curate, “in resulting a decision that was McKinney’s layout” and “courtroom on an based unreasonable determination of claims, the Ari- Lockett/Eddings because facts in light presented of the evidence Supreme denying zona Court’s decision proceeding.” State court 28 U.S.C. to, nor an contrary relief was unrea- 2254(d)(2). McKinney has demonstrat- of, application clearly established sonable that he is ed entitled to habeas relief re- law or federal based on unreasonable Eddings of gardless whether violations are of the facts. The district determination structural deemed error are reviewed properly also relief on denied for harmless error. I would therefore re- McKinney’s juries remaining dual the district denial of verse court’s all relief claims, “shackling” the claims are because instructions remand grant with procedurally defaulted. McKinney’s based petition habeas on this AFFIRMED.16 claim. WARDLAW, Judge, concurring Circuit I. part dissenting in part: It was well established when Because failed to exhaust the sentenced, “[j]ust claims, juries shackling agree dual I may State preclude statute majority’s with conclusion denial considering any mitigating sentencer upheld. of relief on these claims must be factor, neither sentencer refuse to However, I disagree analysis its with consider, law, any as a matter relevant and, McKinney’s Eddings claim1 there- mitigating Eddings evidence.” v. Okla- fore, majori- dissent from Part III homa, 104, 113-14, U.S. S.Ct. ty’s opinion. It from the is clear record (1982). L.Ed.2d 1 The Court improperly the sentencing judge re- Eighth has clarified that and Four- to consider effect of fused specifically require teenth Amendments McKinney’s post traumatic stress disorder fully mitigat- the sentencer to consider all (“PTSD”) specifically because the evidence, regardless of the lack of a judge concluded that this evidence was not causal connection between the evidence crimes, causally linked to con- defendant’s crime conviction: trary the U.S. Court’s deci- There is no that this disputing Court’s in Eddings progeny. sions and its The in Eddings requires cap- decision that in repeated that le- error, ... gal resulting pre- in a that “was ital cases the sentencer not be decision 3, 2012, McKinney panel majority agrees On December that we should filed Supplemental "Motion to File Late Authori- address uncertified Lockett/Ed- While we see reason that these ties.” dings claim resolution of this because the presented authorities could not have been amongst jurists issue “debatable reason.” letter, "grant” 28(j) the mo- nevertheless Cockrell, 322, 330, Miller-El However, none authorities refer- tion. (2003). L.Ed.2d 931 provide any relief under AED- enced basis for *18 PA.
922 in imposed spite a will be of considering, mitigating penalty death from
eluded
char-
of a defendant’s
which
call for a less severe
factor, any aspect
factors
any
and
of the circum-
penalty.
acter or record
When the choice is between
death,
defendant
unacceptable
of the offense
that
stances
life and
risk is
for a
less
as a basis
sentence
proffers
incompatible with the commands of
clear is the corol-
Equally
death.
than
Eighth
Fourteenth Amend-
may not
lary rule that
the sentencer
ments.
precluded from
to
or be
refuse
consider
Ohio,
586, 605, 98
Lockett v.
438 U.S.
S.Ct.
evi-
considering any
mitigating
relevant
(1978)
2954,
(emphasis
973
57 L.Ed.2d
add
are now
estab-
rules
well
dence. These
ed).
recognized
The Court has
....
lished
perform
sentencer must
individualized
Carolina,
4,1,
476
v. South
U.S.
Skipper
mitigat
analysis
piece
of each
of relevant
(1986) (inter-
1
1669, L.Ed.2d
106 S.Ct.
90
“the sentencer must be free
evidence:
omitted)
nal
marks and citations
quotation
give ‘independent mitigating weight
added);
455
Eddings,
see also
(emphasis
character
aspects of the defendant’s
110,
at
In Smith v.
U.S.
102 S.Ct.
record and to circumstances of the offense
Texas,
37,
400,
125
160
543
S.Ct.
U.S.
Eddings,
in
proffered mitigation....’”
(2004),
explained
the Court
L.Ed.2d 303
110, 102
Lockett,
(quoting
U.S. at
S.Ct. 869
requirements” are
that such
“nexus
causal
2954).
605,
U.S. at
and now
“a test we never countenanced
thus
precedent
requires
sentenc
rejected.”
unequivocally
Id. at
have
adequate
er to
con
give
independent
Eddings,
at
(citing
455 U.S.
125 S.Ct.
to all
sideration
relevant evidence
a
Smith,
869); see also
102 S.Ct.
proffers
defendant
of his
that it
(holding
125 S.Ct.
U.S.
crimes.
[Supreme
prece-
“plain
was
Court]
Finally,
Eddings
the rule
announced
lacking a
dents” that evidence
“nexus”
requires
actually
sentencer
con
“was
the crime of conviction
relevant
independent piece
sider each
of relevant
Accordingly,
mitigation purposes”).
mitigating
Eddings,
evidence.
See
capital
sentencers in
Constitution forbids
U.S. at
ing upon, predictor of future violent experts that those who a far better even that exhibit Syn- early aggression Post-traumatic Stress than is alone.” behavior agree childhood abuse can result from of the sentenc- passage Id. at 436. this drome of individuals lingering problem a transcript, sentencing judge and be is stat- abused, beaten de- have who been no evidence ing that because there was care, necessary clothing, prived the clin- McKinney suffered certain of affection that Mr. love and and parental paper, in the i.e. a ical variables identified through was—obviously, episode neurological damage, psychotic or in this case— was of testimony, deprived diag- no his there was correlation between as Dr. have concluded nevertheless of PTSD the commission his nosis of indicated, cogni- there was McMahon sentencing judge And crimes. because the defendant. of impairment tive concluded, unconstitutionally he so of presented any There was no evidence law, a matter of out PTSD as screened of damage or disease organic brain along with weighed it could be before defendant; appears it that in Exhibit aggravating other factors. sample in the of individuals at least course, doing nonsensical as Of so was those individu- comparing case and well, study only purports because with cognitive impairment, als with will which abused adolescents be- predict abuse, psychotic not where there was violent who commit murder. come adults damage to a neurological or episodes point, McKinney had been convict- At defendant, two or three of where at least murders, already of two so he had ed that if things present, only those were paper committed what describes as and abuse were cognitive impairment Id. at “the most serious of crimes.” significant- nothing if there present, was sentencing judge for the was The issue not offenses ex- ly the violent significant predicta- McKinney’s whether crimes were those individ- by to be committed pected ble; fact that McKin- it was whether the uals, that there was experts found his ney suffered from PTSD reduced cul- between in- significant difference issue pability for murders—an cognitive impairment who dividual with judge declined to address because his no history with suffered with child abuse reading of the him to study caused con- had only of abuse those who cognitive or diagnosis clude PTSD cognitive only been had abused causally McKinney’s related to crimes. deficit. so, Having sentencing judge done 27-28, July 23, Sentencing Hr’g Tr. at explicitly finding declined make a as to McKinney actually suffered from whether sentencing judge Exhibit to which the PTSD, because this as he viewed irrele- refers, in 1989 paper prepared is a the lack a nexus between given vant of University at the New York researchers crimes: McKinney’s Medicine, Psychi- Department School of that, But, I think than importantly more attempts which vio- atry, predict which certainly not him trying dispute as an to commit adult delinquents go lent will meant, expert ap- on what all that Dorothy aggressive offenses. Otnow Lew- to me did peared that Dr. McMahon is, al., Theory M.D. et Toward testimony time any suggest nor Study Follow-up Genesis Violence: A I evidence to sug- did find credible Delinquents, 28 J. Am. Acad. & Child Ado- that, (1989). even gest diagnoses Post- Psychiatry paper if lescent Syndrome were accu- that “a of interact- traumatic Stress concludes constellation case, rate nexus in Mr. between the PTSD any way impaired Mr. significantly criminal made it nonmitigating conduct McKinney’s conduct. a matter of law. As more fully discussed below, McKinney presented this evidence (emphasis Tr. at add- Sentencing Hr’g ed). suggest for two impermissi- If this articulation of an reasons: that he had *21 enough, night ble nexus test were clear the diminished on capacity the sentencing judge next confirmed that he murders and to that he demonstrate was PTSD from his miti- excluded the culpable less for his than crimes someone gation analysis because there was no evi- who did not suffer from PTSD. The sen- linking McKinney’s the PTSD to dence tencing judge argu- addressed the first criminal conduct: ment, finding McKinney’s capacity appeared upon to me that all
[I]t based was not diminished. he failed to simply these circumstances that there address the diagnosis whether PTSD had was no substantial reason to believe that any impact McKinney’s culpability even if McKinney the trauma Mr. his Eddings/Lockett crimes. This serious had suffered in childhood had contribut- Eighth error violated the and Fourteenth ed to an of appropriate diagnosis Post- Amendments. Syndrome traumatic it in Stress
any way
in
affected his conduct
this
III.
case.
On direct appeal,
Supreme
the Arizona
Id. at 29.
sentencing judge
reaffirm-
agreed
sentencing judge
Court2
with the
for a
ed
third time that he excluded the
that the
of a
relationship
absence
causal
diagnosis
PTSD
from his consideration of
diagnosis
between
PTSD
whether
sentence
to life or
his crimes rendered this evidence nonmiti-
death because he did not
believe
evi-
Thus,
gating as a
of
matter
law.
the Ari-
relationship
dence had a causal
with
zona Supreme
decision was “con-
Court’s
McKinney’s crimes under Arizona’s death
trary
clearly
to ...
established Federal
penalty statute:
law,
by
as determined
the Supreme Court
though
I’ve determined that even
there
of
United States.”
U.S.C.
by
be some evidence Dr. McMahon
2254(d)(1).
addition,
§
In
the Arizona Su-
that would demonstrate under
[Ariz.
preme
accurately
Court failed to
describe
13-751](G)(1)
§
capaci-
Rev.Stat. Ann.
analyze
sentencing judge’s
or
rationale
ty by
appreciate
the defendant to
result,
sentencing McKinney.
As a
wrongfulness
conduct,
of
not sig-
Arizona Supreme Court’s decision also was
nificantly impaired, either
by
use of
“based on an unreasonable determination
drugs,
possibility
alcohol
of a
2254(d)(2).
§
of the facts”
U.S.C.
diagnosis
Syn-
of Post-traumatic Stress
legal
These
and factual
satisfy
errors
drome.
2254(d), entitling
habeas
Id.
30. There can be
no doubt
relief under AEDPA.
disposed
judge
First,
diagnosis by
PTSD
the Arizona
concluding
its va-
Court’s
lidity was irrelevant
lack of
opinion repeats
sentencing judge’s
because the
un-
Judge
eminently
2. As
Thomas makes
clear
Court held unconstitutional
Ten-
Dretke,
Poyson Ryan,
his dissent in
F.3d 1087
nard
[v.
(9th Cir.2013),
(2004)].” Poyson,
"At the time it decided this
159 L.Ed.2d
case,
(Thomas, J.,
applied
(listing
dissenting)
at 1105
Ari-
cases).
causal nexus test similar to the one the U.S.
zona
fact,
McKinney’s McKinney, 917
at 1234.
P.2d
treatment
constitutional
quite
sentencing judge
did
a bit
while
diagnosis:
PTSD,
about
much of this dis-
talking
judge gave
shows that
record
[T]he
analysis in
predictive
cussion related to the
McKinney’s child-
consideration
full
screening
Exhibit 3 as
reason for
out
testimony regard-
expert
and the
hood
factor,
diagnosis
mitigating
the PTSD
as a
childhood, specifi-
of that
ing the effects
refusing to
it with other rele-
weigh
diagnosis
post-traumatic
cally the
Certainly, nothing
factors.
in the
vant
(PTSD).
disorder
stress
sentencing judge
indicates
record
correct,
were
Assuming
diagnoses
type
“the
of individualized con-
exercised
experts
that none
found
factors
...
sideration of
re-
to, and
the evidence
none of
testified
showed,
Eighth
and Fourteenth
quired
*22
that such conditions
105,
Amendments.” Eddings, 455 U.S. at
McKinney’s
way significantly impaired
Lockett, 438
at
(quoting
courts refused
nexus); Styers
(inter-
2934,
(1989)
lack of a
mitigating due to
Here,
ruling
precedent,
of Arizona
our
Styers,
as in
the State
to death with
sentenced an individual
has
was without
power
do. See Unit-
complying with the constitutional re
out
Parker,
States v.
F.3d
ed
adequately
the sentencer
quirement
Cir.2011)
curiam)
(9th
(per
(“Only the en
mitigating
“any relevant
evi
consider
prior
court can
panel prec-
banc
overturn
Eddings, 455 U.S.
dence.”
edent.”);
Gammie,
see also Miller v.
cases,
In both
the Arizona
Cir.2003)
(9th
892-93
(holding
courts refused to consider
“may
that a three
panel
reexamine
evidence because the de
impact
PTSD
normally controlling
precedent”
circuit
failed to establish
causal rela
fendant
only
reasoning
theory
“where the
or
of our
tionship
and his
between the disorder
authority
clearly
circuit
prior
irreconcil-
However,
conduct.
unlike the
criminal
theory
with
reasoning
able
of inter-
here,
correctly
we
rec
majority
Styers
vening
result,
higher authority”). As a
legal
contrary
that this
error was
ognized
Stokley has created an intra-circuit split
law,
clearly
established constitutional
concerning
Eddings
whether
errors are
granted
accordingly.
habeas relief
I
or are
for actual preju-
structural
reviewed
grant
relief on the
would
Ed-
Absent an
call to
dice.
en banc
correct
abundantly
claim.
It
dings/Lockett
issue, I
uniformity
would maintain the
clear
this record that
is enti
by
our prior precedents
remaining
faith-
sentencing proceeding
to a new
tled
ful
the numerous
that have treat-
cases
actually
the sentencer
considers
which
structural,
Eddings/Lockett
ed
errors as
diagnosis
mitigating factor
as a
as
not following
the one outlier decision
the Constitution.
See,
Williams,
e.g.,
that failed to do so.
Whether
assuming that
even
Ed-
prejudice
actual
for the writ to issue
strate
dings/Lockett
are reviewed
violations
question
unsettled
in the Ninth
is an
Cir-
I
conclude
prejudice,”
“actual
would
Historically,
cuit.
have treated Ed-
Eddings/Lockett
in this
error
case had
structural,
dings
granting
errors as
injurious
a “substantial and
effect or influ-
without
to the
inquiring
writ
likelihood
upon
ence”
sentencer’s decision.
See,
different
result.
e.g.,
of a
Brecht,
could do refused to rather, so, this, even the error itself whether Despite Stokley the writ. Id. majority panel stopped well short of over- had substantial influence.
930 (9th Yates, 444, sentencing hearing court hold new with- F.3d v. Merolillo Cir.2011) ninety days. v. United (quoting Kotteakos 1239, 750, 765, States, 66 S.Ct. U.S. (1946)). record “Where
L.Ed. judge ‘feels him evenly balanced that
so equipoise to the in virtual as harmless
self doubt ‘grave the error’ and has
ness of a jury affected whether error
about [substantially and injuriously], ” the error if it did so.’ Id.
must treat McAninch, O’Neal (quoting LARSEN, Petitioner-Appellee, Daniel 115 S.Ct. L.Ed.2d 947 (internal
(1995)) (alteration original) omitted). quotations SOTO, Respondent-Appellant. John that he is argued has entitled sentencing proceeding because
to a new No. 10-56118. judge’s appropri- failure Appeals, United States Court of ately diagnosis consider result- Ninth Circuit. a life in a death sentence when sen- ed for was called based on his lessened tence July Argued Submitted 2013. Here, McKinney’s sentence culpability. “substantially swayed” by the sen- Filed Sept. Merolillo, judge’s error. tencing appropriately A sentencer who all the evi-
considered relevant required by easily
dence as Lockett could of Dr.
have concluded the basis McMa- testimony McKinney’s PTSD
hon’s mitigating factor. In-
was a substantial
stead, sentencing judge’s unconstitu-
tional consider the effect of refusal culpability PTSD on his for “creates the risk that death
his crimes imposed spite be
penalty will factors penalty.”
which call a less severe
Lockett,
Given at sen- presented
evidence that *26 it cannot fair assur-
tencing, be said “with appropri-
ance” that sentencer who also
ately considered PTSD evidence would McKinney to death. Mer-
have sentenced
olillo, 454. I would therefore
reverse the district court and remand with grant McKinney’s
instructions habeas
petition, and to the state require