Scott Clabourne v. Charles Ryan

753 : Appellate by judgment Bankruptcy Judges Concurrence The CLIFTON and IKUTA; Eighth for is affirmed. Panel Circuit ': no express on the We merits Judge Dissent BERZON Spencer person- remains whether Michael ally portion disallowed liable for .of ORDER claim, nor bankruptcy do we MDSS’s de- Judges Clifton and Ikuta have voted .may juris- cide what court courts have deny petition for panel rehearing. diction decide issue. Judge Berzon has peti- voted

tion for panel rehearing.

Judge deny has peti- Ikuta voted tion for rehearing banc, Judge en Clif- ton so Judge recommends. Berzon has vot- to grant rehearing en banc.

The full court has been advised of the banc, suggestion rehearing en CLABOURNE, Scott D. Petitioner- judge requested has a vote on whether to Appellant, rehear App. R. matter banc. P. Fed. v. RYAN, Respondent-

Charles L. petition for rehearing en banc are there- Appellee. fore DENIED. No. 09-99022 IKUTA, Judges, Circuit CLIFTÓN and. Appeals,

United States Court of concurring rehearing: the denial Ninth Circuit. case, After consideration careful including a close review of August 1, Filed Court, v. Clabo State (1999) urne, 194 Ariz. P.2d 748 No. D.C. 4:03~cv-00542-RCC (en banc), we entered a unanimous Arizona. concluded Young, Young S.'Jonathan & Williamson “gave illness Clabourne’s mental some PC, Tucson, Arizona, for Petitioner-Appel- nonstatutory mitigating weight but ulti lant. mately held that the mitigating circum Jeffrey (argued), A. Zick La-A. Jacinda stances were insufficient to warrant lenienr num, Cain, Amy Pignatella Assistant cy.” General;

Attorneys Lacey Stover Gard and 2014). explaining After Cattani, Capital Litigation Kent Section basis for our determination that the Ari Counsel; Brnovich, Attorney Chief Mark zona Supreme given General; General, Attorney Office deficiencies, to Clabourne’s mental Tucson, 373; Arizona; for Respondent-Appellee. concluded, at we cannot construe the court BERZON, Oklahoma,

Before: MARSHA S. violated [v. U.S. CLIFTON, (1982) RICHARD R. ] and SANDRA S.Ct. 71 L.Ed.2d IKUTA, Judges. giving Circuit health is S. Clabourne’s mental

754 by excluding evi I. such “no

sues Ed their from consideration.” dence In McKinney, panel an of this en banc dings, Arizona [at 115]. that, unequivocally from the stated review not under was decision 2002, “Supreme late of 1980s the law, it con contrary to federal because applied articulated and ‘causal mental health condi sidered Clabourne’s nonstatutory mitigation nexus’ test for mitigating re tion as evidence. giving weight forbade as a matter of law quires no more. evidence, family mitigating such back- condition, ground or mental the unless developments there have been Although condition caus- background or mental precedents our in our since we filed ally connected the crime.” F.3d at 813 our opinion, none alter assessment of what test, held, we 802. That causal nexus vio- Court did resolv- Oklahoma, 104, Eddings v. 455 lated U.S. ing appeal. do doubt 114, (1982), 102 S.Ct. 71 L.Ed.2d 1 sincerity Judge of Berzon’s current sentencing capital which bars a court in a previous that our but we conclude from refusing case as a matter of law action, analysis of that court’s which she any consider relevant evidence. joined, remains correct. McKinney, 813 at 802. F.3d McKinney emphasized repeatedly the BERZON, dissenting Judge, Circuit consistency with which Su- rehearing: from the of denial preme Court applied articulated and from rehearing dissent the denial unconstitutional causal nexus rule this case. (“[T]he Id. at 824 period. Ari- Court, zona period petition in rehearing We held the this years, consistently fifteen over insist- McKinney v. Ryan, case for 813 F.3d 798 upon and its causal nexus test — denied, (9th 2015) (en banc), cert. Cir. mitigation. no case dur- U.S. -, 137 196 197 S.Ct. L.Ed.2d ing give any this did the (2016), an of this court indication the causal nexus test was panel opinion, after our then issued and Arizona, any the law indication briefing supplemental ordered about that it slightest doubt about McKinney. See impact Order to File test.”); see also id. constitutionality of the v. Ryan, Briefs, Supplemental It 826. was 1999 that (9th 2014) (No. 371 Cir. Clab- affirmed 99022). Ignoring briefing both and sentence, which, tim- ourne’s death like the McKinney itself,' majority now in ing of the decision refuses to I am rehear case. convinced “roughly in the fifteen-year- middle and, obligated light that we are to do so plus period during on its which insisted unconstitutional test nonstatuto- nexus habeas ry mitigation.” See id. at 820. See, e.g., v. Hedlund (9th course, McKinney amended dispose F.3d Of does not Cir. superseded rehearing on denial en out banc, 2017) (with McKinney’s, right. But F.3d drawing original panel opinion consistently ap and recon Arizona sidering light plied of the unconstitutional rule the time petitioner’s claim an McKinney). intervening provides reviewed Clabourne’s sentence we if eliminated, baseline which must review the reliance on Schad as it be, the decision in State 194 must is properly ap- (1999) (en banc) Ariz. P.2d 748 plied, we change must outcome (“Az Claboume”), interpret any ambi granting petition for guity therein. regard with

Critically, McKinney also overruled the

requirement Ryan, established Schad v. II. (9th 2011), Cir. F.3d that a In light of McKinney’s review Ari- of may petition federal zona case period law Az Clab- Eddings er if only relief on an claim there decided, oume was and absent the Schad is “clear indication record” mandate that we find “clear indication in state as a court refused to matter law record” that the state committed nonstatutory mitigation consider relevant error, Eddings I am convinced that Az evidence. at F.3d Claboume applied the unconstitutional held instead a federal ha- in McKinney test identified examining beas court a claimed by declining to consider evidence of Clab- give error a state court need decision ourne’s as a nonstatutory required normal deference under the mitigating factor. Penalty Antiterrorism and Effective Death (“AEDPA”). adhering Act of 1996 Id. In to initially ad test, Schad’s “clear indication” see Clabo dressed Clabourne’s mental health condi urne v. tions in statutory mitigation the context of panel depends § under Arizona Statutes Revised upon a that an en standard of 703(G)(1), impaired capacity. Az Clabo rejected this court as “an expressly inap urne, 194 Ariz. at 983 P.2d 748. propriate unnecessary gloss on the Statutory mitigation impaired based on ca already required AED- deference under” pacity is in Arizona available PA, McKinney, see 813 F.3d at 819. “major contributing mental illness is a cause” of the defendant’s conduct short, In by denying peti- (G)(1) requirements substantive are tion leaving the opinion (citation (emphasis original) met. Id. unamended, in this panel majority omitted). calls Substantively, “[t]he statute not grapple significance does with the ‘significant’ impairment of two one of the intervening (1) specific appre abilities: capacity its either that the (2) ciate the or wrongfulness conduct consistently ap- capacity to conform conduct plied an unconstitutional causal nexus rule Id.; requirements law.” see Ariz. of the rejec- or to its (current 13-703(G)(1) § Rev. version Stat. tion of heightened Schad’s standard 13-751(G)(1)). § at Ariz. Rev. Stat. view. At a minimum then —whatever the proper panel opinion’s outcome—the rea- In considering Claboume was whether soning as it stands inconsistent with the mitigation statutory entitled to im- current law of this circuit and should be paired capacity, reconsidered. Court first the evidence related recounted

But, health. problem my one Claboume’s Two mental mental papered that can health simply experts be over revi- Claboume suffered believed Rather, illness, panel opinion. sions to existing probably schizophre- mental his nia, capacity he to conform conduct the .re person- another had believed significantly law was ality quirements disorder. Az Nevertheless, had neither impaired” ex- because he these shown P.2d paranoid any agreed passive there that “he was perts evidence “that degree impairment he had particu- [n]or of mind at the of Clabourne’s state particular, actually.lost any control over his conduct time the offense.” Id. lar Id. experts say he committed the murder.” [not] “could whether when 748; ‘psychotic,’” and none see Ariz. Stat. [Clabourne] Rev. (current 13-703(G)(1) § version at Ariz. implied “stated or causal relation- Stat., 13.751(G)(1)). § health Rev. ship Clabourne’s mental between any Id. and “Neither did murder.” the Arizona When Clabourne, nonexpert party, including indi- to mental in turned Clabourne’s health contact with cate Clábourne had lost that nonstatutory mitigating context of circum- abnormally reality par- or he acted when stances, specific fact addressed in ticipated crime.” Id. passive personality “Clabourne has manipu- he emphasizing requirement impulsive easily and that and After 387, contributing “major mental illness others.” Id. at 983 P.2d be lated earlier, cause” for a As court indicated there defendant’s conduct had the. finding impaired capacity plausible under was a causal connection between statute, crime, personality giv- the court these traits and held Clabourne’s “status being mentally Langston’s manipulative ill alone to personality insufficient [ ] (G)(1) support finding.” (emphasis leadership Id. and his role Webster’s mur- So, original). id. P.2d der. See under Court’s the Arizona causal nexus pro The Arizona Court then standard, required weighing traits as those consider, to still ceeded the context mitigation. nonstatutory to The court rec- statutory mitigation, argu Clabourne’s passive ognized personality Olabourne’s pas ment “his mental illness causes to to and related characteristics “rooted be sivity paranoia that Langston and allowed degree prob- some mental health his him, control and therefore he un .was lems,” but, id. at 983 P.2d Langston’s pressure rape able resist explained, prob- have those considered kill and Id. at Webster.” 983 P.2d 748. diag- from his schizophrenia lems distinct The court earlier had its discussion specific It was as to nosis. impaired capacity noted that record “[t]he personality and deficiencies” “mental Langston does demonstrate that passive personality, impulsiveness, and who, manipulative frightening and man n manipulability did connec- have a —which part, choreographed most the crime tion crime—that the court “af- urged to kill Id. and Webster.” mitigating nonstatutory some forded] at 385, 983 Accordingly, whereas P.2d 748. weight.” Id. court rejected Clabourne’s status nonstatutory no being gave ill That the some mentally because there was link, rejected only mitigating weight specific causal these deficiencies, personality paranoia personality and and passive as a ba mental (G)(1) mitigation schizophrenia, to his evi- sis for under further subsection (in justification because Clabourne denced satisfied is, sentence) very ultimately granting next statute’s substantive standard. That mitigating his “that those characteristics little Clabourne .had demonstrated weight. life, id. highlighted See The court family Clab- he has failed to link family his participation ourne’s throughout “active background to his murderous conduct the six-hour ordeal the fact that he to otherwise show how it affected his be personally strangled and stabbed Web- havior.” Az Ariz. ster,” holding that those facts “render[ed] 983 P.2d 748 (citing State v. Spears, 184 negligible any mitigating effect Clab- [of] 277, 293-94, Ariz. (1996)). 908 P.2d 1062 problems they ourne’s traits mani- The conclusion that the Arizona Su fest.” Id. Clabourne’s active involvement preme the unconstitutional a lengthy pertinent crime was to weighing causal nexus test to preclude consideration the evidence that passive, Clabourne had a diagnosis, as a impulsive, manipulable personality, nonstatutory mitigating factor is further but active would involvement supported by bearing on what give citation to its own decision in Az Clab- schizophrenia diagnosis. oume later cases applying To hold that the See, e.g., standard. State refused consider Clabourne’s schizo- Carlson, phrenia at mitigation (2002) (en banc); Cañez, State v. phase does as the (2002) (en banc). suggests, require reaching “illogical [.] Those later citations to Az Clabourne for Supreme conclusion] the Arizona the causal nexus are in standard Court schizophre- [Clabourne’s considered light of McKinney, To the Towery extent diagnosis explicitly nia] referenced it v. Ryan, 673 F.3d in portion one of its opinion forgot but it limited our in review habeas cases to the considering nonstatutory mitigation, us, record barring case before con pages discussed a few later in the post-hoc sideration of opinion.” Clabourne, characterizations 745 F.3d at 374. The inference, by court, Towery better state light McKinney and is based on the reasoning and inconsistent with McKinney structure Az and so does not is that McKinney control. freely looked be applied which, its yond it, record the case before test — held, McKinney governing was its stan- examining Court deci time, consistently dard at the applied sions numerous other cases to establish —to exclude pattern applying an uncon consideration as course, stitutional rule.1 Of later Arizona factor. (Supreme Court citations to Az Clabourne for the causal nexus standard are not understanding

This dis- bolstered positive, fact that the may as federal habeas Supreme Court ex pressly grant relief applied on an error in causal nexus standard based very in the next decision adjudicating subsection the nonstat- petitioner’s claim. utory mitigation 2254(d). § discussion. See 28 The court re U.S.C. But those later' jected dys Clabourne’s evidence of his decisions do corroborate what a careful family background functional reading of opinion, light because of McKin “[w]hatever difficulty ney, .the demonstrates.2 McKinney Towery wrongly undermining also held Towery’s persuasive was further val- case, decided as to ue. See issue in 813 F.3d at 824. Similarly, arguments prosecutor’s Claboume that Az

Again, applied individually Tiffany HILL, and on nexus test disapproved unconstitutional similarly behalf of all others McKinney McKinney is no wonder. As Plaintiff-Appellee, situated, held, Arizona courts the uncon- consistently test stitutional nexus Az “A Claboume. decided SERVICES, LLC; XEROX BUSINESS good not apply does an [] estab- Oregon Livebridge Inc., Corpora- an erratically, enforcing it lished rule arbi- tion; Computer Affiliated Services but not in trarily in some cases others. Inc., Corporation; Affiliat- Delaware respect for the great LLC, Computer a Dela- Services Arizona, integrity institutional whose Liability Company, ware De- Limited alia, demonstrated, inter the consistent fendants-Appellants. application of the causal nexus test 14-36029 No. fifteen-year period in effect.” hold, at 826. To Appeals, United States panel opinion, does the current Ninth Circuit. Court for some unex- August Filed plained apply prior reason did own its precedents case alone in this is to disre-

gard but the Arizona later own references as one which the nexus

quirement applied. sum, I see no choice after grant

but to re- this case for resentencing. There

mand principled way reconcile reasoning opinion’s with opinion. I court’s en would

hear this case and strongly therefore dissent panel’s refusal do either. resentencing quired hearing regarding such the time Claboume nexus at resentenced, McKinney held. causal nexus confirm that Arizona law re-

Case Details

Case Name: Scott Clabourne v. Charles Ryan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 1, 2017

Citation: 868 F.3d 753

Docket Number: 09-99022

Court Abbreviation: 9th Cir.