*1 alleged the facts as findWe that L.L. Bean has demonstrate
Gator systematic or continuous and
substantial sufficient to sup- California
contacts with jurisdiction. general
port finding of the District Court is reversed
decision proceedings remand for further
and we opinion.
consistent with this and REMANDED.
REVERSED Wesley SUMMERLIN,
Warren
Petitioner-Appellant,
Terry STEWART, L. Director of Ari Department Corrections,
zona
Respondent-Appellee.
No. 98-99002. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Oct. 2000.
Opinion Filed 2001. Oct.
Withdrawn Feb. 2002. Granting Hearing
Order En Banc
Nov. 2002.
Argued and Submitted Dec. Sept.
Filed *2 Murray Marquez,
Ken and Leticia Phoe- nix, Arizona, petitioner-appellant. for the Phoenix, Todd, Arizona, Pressley was a convicted armed robber who was John youth, killed a shootout. As a his alco- respondent-appellee. for the him frequently pun- holic mother beat him him in locking ished a room with behest, ammonia fumes. At his mother’s *3 he received electroshock treatments explosive temper. dropped control his He grade out of school in the seventh due to SCHROEDER, Judge, and Before Chief dyslexia petty numerous committed PREGERSON, REINHARDT, juvenile diag- offenses. he was paranoid schizophrenic nosed as a O’SCANNLAIN, HAWKINS, THOMAS, anti-psychotic treated with the medication WARDLAW, McKEOWN, FISHER, Thorazine. RAWLINSON, TALLMAN, and Circuit conviction, Before his murder his Judges. dangerous felony adult was a conviction for THOMAS; by Judge Opinion aggravated That assault. conviction arose REINHARDT; out of a by Judge rage road incident which a car Concurrence road, jumped veered off the the curb and Judge by Dissent RAWLINSON. wife, hospital- struck Summerlin’s who was THOMAS, Judge. Circuit scene, injuries. ized for her At the Sum- appeal In this we consider whether the merlin brandished a pocket knife at the driver, errant an act that occasioned the denying erred in a writ district court filing charge. of the criminal assault Sum- sought corpus petitioner’s habeas as to merlin was not convicted of this offense death sentence. conviction and We affirm until capital proceedings after these had judgment the district court’s as to the However, commenced. this conviction la- However, conviction. conclude we that the ter statutory aggrava- served as one of two decision v. Ari Court’s ting qualified factors that Summerlin for zona, penalty. the death (2002),applies retroactively L.Ed.2d 556 so morning April On the Bren- that the require as to death Bailey, delinquent na a investiga- account this case be vacated. America, tor for Finance went to Summer- lin’s speak home to with Summerlin’s wife I an Bailey’s about overdue account. When legal It is the raw material from which boyfriend, Rigsby, Marvin learned that she murder, A forged: fiction is vicious an scheduled, had not returned to work as he psychic tip, places a romantic obtained the addresses of the she anonymous encoun- planned had to visit that day began plea agreement, ter a an jeopardized that retrace her early evening, travel. defense, incompetent allegedly and death spoke Summerlin, he Rigsby with who told imposed by purportedly drug- sentence Bailey had left that residence at 10:30 But, as judge. addled Mark Twain ob- a.m. The residing woman at the next ad- served, stranger than “truth often fiction Bailey dress Rigsby was slated to visit told fiction has to make sense.” because that she day had been home all and had There is no doubt that Warren Summer- anyone. received visit from After extremely lin is an troubled man. He has making attempts Bailey, additional to find organic dysfunction, brain was described Rigsby reported Bailey’s disappearance to police evening. by a psychiatrist “functionally as retard- ed,” and explosive personality has disorder evening, Later the police received a impulse with impaired tip anonymous control. His father caller to a female an to Ariz. P. 11. pursuant that she amination R.Crim. service who stated hotline crime Thereafter, from “Pa- missing assigned attorney woman left the believed mur- Company” had been office, attorney Finance public cific defender’s and an Summerlin, up rolled who had dered we shall refer to Roe” was whom as “Jane in a The caller body carpet. victim’s designated represent Summerlin. moth- was identified Summerlin’s later In Juné Summerlin was examined of her testified that the who basis er-in-law court-appointed Drs. psychiatrists, two daughter’s was her extra-sen- information Tuehler and Each Maier Ótto Bendheim. sory perception. competent him trial and found stand morning, paving a road Early the next M’Naghten sane under the stan- legally approximately a market crew outside dard, governed then which the determina- alerted residence mile from the Summerlin law. Al- competency tion of under Arizona *4 manager to a smell emanat- the market’s there was no of mental though evidence car, of later parked from the trunk a ing defect, or Tuehler observed disease Dr. Bailey. have to been owned determined dyslexia illiteracy and made Summer- recognized the odor as that manager “functionally mentally lin He retarded.” body telephoned decaying of a and impulse further found Summerlin’s arrival, officers observed Upon police. extremely due to an impaired control was pantyhose, and shoes panties, a pair personality and explosive-type disorder They of the back seat. the floor-board personality. that he had an anti-social Bailey’s open the trunk and found forced reports, David G. Upon reading Judge in a Her wrapped bloody bedsheet. body, to competent Derickson found Summerlin crushed, partially she was skull was and trial. stand nude. period, time had con- During this Roe for obtained a search warrant police Dr. versations with Leonardo Garcia-Bun- nu- found residence and the Summerlin uel, who psychiatrist a treated Summerlin evidence. incriminating items of merous Jail, a regarding Maricopa County at the read to Sum- After the search warrant was epilepsy. diagnosis psychomotor possible merlin, stated, nobody.” “I kill he didn’t had described to Dr. Garcia Summerlin respond, Sum- the detective did not When murder, particularly details of Buñuel to the “Is this in reference merlin asked: per- an intense experiences sensing his my response that was house?” girl odor, Buñuel and this Dr. fume led Garcia girl he inquiry to which to the officer’s as had a may that Summerlin have suspect Bai- referring, Summerlin described was the time of lobe seizure at temporal wife identified ley. Summerlin’s Subsequently, August killing. with the victim bloody bedspread found testing by neurological arranged Roe household. belonging to Summerlin Winegard. electroencephalo- An Dr. Mark the mur- was then arrested for Summerlin (EEG) slowing showed Sum- gram some Bailey. police At the sta- Brenna der of area but was posterior temporal merlin’s tion, wife speak asked to to his Summerlin epi- support diagnosis insufficient incriminating state- then made several and per- and a EEG CAT scans second lepsy. were within police while officers ments As 1981 were normal. October formed listening distance. result, his Dr. Buñuel withdrew Garcia pub- court appointed The state trial concerns. Summer- represent lic office defender’s evalua- psychological Roe also secured to the attorney assigned lin. The' first Tatro from Dr. Donald ex- Summerlin competency a mental tion of case moved for Although concluding plea agreement in November 1981. provided that Summerlin’s support evidence to an insan- charges there was no sentences on the three run would defense, However, found ity concurrently. agreement Dr. Tatro indications of subject impairment, approval. to court If the organic per- brain border-line court disorder, rejected sentence, stipulated sonality paranoid personality and Summer- (1) lin could either allow opinion, plea In Dr. Tatro’s his to stand disorder. Summer- and be sentenced to a term emotionally up thirty- lin deeply mentally “is and eight-and-one-half disturbed, years, according to unaware of the underly- motives discretion, court’s behavior, unable, sole withdraw ing much of his be- plea guilty from his and have the mat- problems, cause of his to exercise normal proceed ters to trial disposition. control, restraint and once highly his un- stable and volatile emotions are aroused.” day On the he plea, entered the Sum- merlin properly answered all questions Roe began plea November ne- required to validate plea. his He gotiations prosecution with the and ob- Alford later, thoughts had second days few how- tained an extremely plea agree- favorable ever, formally sent to pro the court a ment, which Summerlin entered into on plea se motion to withdraw his and to fire prosecutor, November 1981. The public his defender. In a appear- court Doe,” whom we will call “John had been ance on December scheduled to *5 willing agreement to enter into the be- motion, address his openly reg- Summerlin cause he did not believe that the offense istered with plea, dissatisfaction satisfied the Arizona legal standard of sentence, stipulated handling Roe’s “heinous, depraved.” cruel and At the his case. time, Summerlin had not been convicted of felony
the aggravated arising out of the After hearing complaints, his Judge incident, rage road it qualify so did not motions, Derickson denied Summerlin’s an aggravating factor under cap- Arizona’s but took the occasion to inform Summerlin ital sentencing statute. See Ariz.Rev.Stat. that it was his intention on the upcoming 703(F)(2)(1981) (amended § 1993). sentencing date not to accept the stipu- 13— Thus, Therefore, Doe did not believe that Summerlin lated sentence. Summerlin option had committed a would have the offense. either to withdraw plea from the or to allow it to stand and be proposed Under plea agreement, accordingly. sentenced Summerlin towas enter an plea, see Alford Realizing that her client’s Alford, North intention to Carolina withdraw agreement might from the again (1970), which make him eligible for the him, penalty, death enabled without admitting guilt, to promptly Roe attempted to have the case plead guilty to second-degree murder and transferred to judge another who might aggravated assault and to be sentenced look favorably more on the deal. On De- accordingly. agreement stipulated cember the presiding judge de- that Summerlin would be sentenced to nied her disqualify motion to Judge Der- twenty-one years in prison for the murder ground ickson on the prejudice towards of Ms. Bailey, of which he would be re- her client and Judge allowed Derickson to quired to serve fourteen. In exchange, continue with the case. plead Summerlin would guilty aggravat- to ed assault for the rage road incident with a That evening, same Roe attended maximum sentence of fifteen years and party. Christmas prosecutor She and Doe would,admit that he violated probation his left the party together and had'what she in another charging case burglary. The later described as a “personal involvement understood, I finally adding, “Okay. As a result of would ... a romantic nature.” testified, that, my plea agreement. she felt she like to withdraw from as she later you say?” Mr. ethically represent Judge Is that what want me to longer no “could told appropriately of the circum- Derickson Summerlin Because Summerlin.” stances, it be did not “want” say believed “that would he Summerlin to she that, simply he make for another Public Defender wanted to sure that appropriate trial, it happen the case and take it to since Summerlin understood what would handle if he might point, permitted plea it be a trial at that to stand. This looked like exchange prompted Mr. indicated he want- another confidential because Summerlin Roe, Derickson had indi- discussion between Summerlin and Judge ed a trial and that, reject plea.” followed Summerlin’s statement going cated he was supervi- says, plea agreement to her “It if this reported She the situation should be sor, changed any way, determined that the entire I can withdraw.” and was “Yes, compromised. question you,” that’s the he asked probably office replied. Roe Summerlin then withdrew she Notwithstanding her belief agreement. from the The court immedi- due to a represent could not Summerlin ately pleas guilty reinstated his of not interest, Roe took no personal conflict of cases, the two consolidated vacated its accomplish her with- steps immediate findings pending probation in the violation in- drawal. she nor her office Neither matter, and ordered that the matters be client of formed either the court or their presiding judge sent to the for trial set- longer could no her conclusion that she ting. Summerlin’s courtroom decision to Instead, ac- attorney. Summerlin’s she him plea eligible withdraw his made for a represented him him at companied to and first-degree conviction of murder and a hearing Judge the next before Derickson of death. sentence 22,1981. on December *6 point hearing, At this in the Summerlin hearing, Judge At the Derickson advised again moved once for new counsel. Roe of his decision not to be bound Summerlin mo- remained silent. The court denied his plea agree- the sentencing part the of tion, stating may that “the record further ment, and that if allowed his Summerlin any you reflect failed to establish stand, thirty- plea facing up to he was to grounds upon which counsel should be in eight-and-one-half years prison for the later changed.” Judge Derickson submit- dur- three offenses. After some confusion an that had he then indicating ted affidavit the court twice ing which Summerlin told conflict, grant- known the he would have of Judge’s that he did not the understand change to counsel request ed Summerlin’s might explanation of the sentence he now proceeding the and would have continued face, privately Roe conferred with her plea with the collo- proceeding rather than with client. Their discussion ended Roe’s quy- court, “I he un- statement to the believe derstands, days six after your Honor.” im- On December Summerlin’s was, “No, finally plea, I don’t under- withdrew his Roe response mediate Summerlin stand,” problem the with Doe. On behalf replied, to which Roe “Then what broached client, stay on wanted Doe to your question?” is then asked of her she Summerlin of it disposing he favored years might of he face the case because about the number no plea. with a lesser He could discern charges. Judge on the three Derickson prosecutor. the again step the sentence that Sum- reason to down as explained discussion, hearing was ar- plea if After this permitted merlin would face he his 28, 1981, at which ranged To said that he for December to stand. this Summerlin move to as coun- planned appropriate accomplish Roe withdraw the measures to to this, discovering the Public After sel rest of the this aim. Klink permit and to for a By to withdraw also. moved continuance of assault trial Defender’s Office he was time, unprepared. because His motion assigned case had been to this Riddel, proceeded. was denied and the trial Judge trial. On assault judge, another witness, only Klink called one Summerlin’s Judge Riddel’s was December calendar aggra- wife. Summerlin was of convicted by Judge McCarthy. Roe being handled vated assault and conviction this served intent to did not inform Summerlin her one several months later as of the two seek or of the conflict that had withdrawal aggravating circumstances precipitated hearing, decision. At her phase his murder trial. McCarthy began by noting that it Judge “brought had to the been attention spoke Klink with Roe about the murder Court that Mr. is defendant Summerlin However, case and the medical reports. legal representation dissatisfied with spoke any of experts he never with he presently receiving.” judge who had interviewed He Summerlin. at- correct, if that asked Summerlin tempted get expert, another psychiatric “Yes, responded, which sir.” Summerlin but he failed. spoken noted that he judge then had theory Klink’s main defense for the mur- with apparently counsel in chambers “and putative der trial was Summerlin’s lack of that it feeling is their would be premeditation. Klink no presented evi- justice best interest of that new counsel be supporting theory. dence He cross- appointed.” Judge McCarthy ap- then examined prosecution several witnesses pointed Klink, a George private practition- attempt an to east reasonable doubt er, Following as new counsel. reas- rape charge a way proving lack of counsel, signment Roe did advise premeditation. prosecution Because her Summerlin of conflict of interest be- evidence, no psychiatric offered Klink cause she saw “no reason to beat dead anyone could not regarding cross-examine horse.” then representa- Klink assumed psychiatric Summerlin’s problems and how tion of charges Summerlin both of the they ability premeditate would affect his stemming Bailey’s murder and the murder. Klink only called one wit- separate charge aggravated aris- assault Roe, ness, and he asked her a few incident, ing out rage of the road which questions order impeach one of the *7 was the unrelated to murder. regarding coroner’s statements length the later, Approximately six the Ari- weeks seminal time fluid remains in the body. zona Attorney General’s assumed Office only The entire case four days, lasted and control of prosecution due to con- was little out for a over three flict of between interest Doe and Roe. The The jury hours. guilty found Summerlin Attorney that plain General made it first-degree of both murder and sexual case would by way not be settled of a assault. plea.
lesser disquali- Klink filed a motion judge The set sentencing hearing to fying Riddel, Judge and Summerlin’s mur- testimony argument hear and on aggrava- der assigned case Judge Philip was then to ting and mitigating circumstances approxi- Marquardt. mately one month after verdict. Klink disqualify had intended to Judge month, that Klink never met with Sum- Riddel separate aggravated as to the as- merlin. Klink knew the prosecution that sault charge filed on the planned basis of road to call Drs. Tuchler and Bendheim rage However, incident. to sentencing, he failed take but he contacted never ei- in, before the witness could be sworn Sum- Klink knew that Summerlin of them. ther only dangerous interrupted although one merlin the con convicted of had been and— Klink in transcript— assault that versation is not the trial felony aggravated —the judge. requested He also that apparently attorney tried before another his not had sur- mitigating requested circumstances Dr. Tatro. Klink a five- present knew of assault, including recess, rounding that minute at the conclusion which and that not harmed physically victim was he stated: iCWiththe consent of the Defen response dant, was reaction Summerlin’s the Defendant has no witnesses striking his wife witnessing the woman ... mitigation at this time and we’ll rest.” did not her car. Klink nonetheless with Klink judge The then reminded and Sum- judge. information to the present this merlin that this was the time set aside for regarding no evidence prepared Klink aggravation mitigation hearing history despite refer- social Summerlin’s planned proceed he with sen report in Dr. Tatro’s Summerlin ences Monday. judge the next The then tencing physical severe possibly experienced said, you you “so tell me that have one in his childhood. emotional abuse you may present witness that on Mon “Well, Klink I day?” replied: would on sentencing hearing commenced The judge all.” The then any call witnesses at July was an the afternoon of 1982. It indicated he would allow Summerlin extending extremely proceeding, short any that he wished to to make statement pages, more only twenty-six transcript make, present hearing either at the or on colloquy constituted be- than half of which Monday. Subsequently hearing, court counsel and the court. The tween rely Klink that he would on the noted argument first entertained defense report written Dr. Tatro attached to the trial, judge a new which the motion for proceeded presentence report. State the week- indicated he would consider over wit by presenting psychiatric two rebuttal case consist- aggravation end. The State’s nesses. exhibit, specifically one certified ed relating aggra- to the
copies of documents Judge Marquardt parties advised the The State then vated assault conviction. that he deliberate over the weekend would consider the trial testi- judge asked the Monday. and announce his decision on entirety mony and rested its case. Summerlin, Mar- Judge Unbeknownst was recorded aggravation the State’s case marijuana at quardt heavy user of transcript. page one time, a fact that the State conceded proceedings federal habeas before mitigation, Klink the For the defense case However, in this case.1 Tatro to the stand. district court called Dr. proceedings, quardt Moffett to see if she During called Barbara his later disbarment pur- spoken about the Judge Marquardt he was ad- had to the authorities admitted that chase, specify told him she had drug, although did not and when she *8 dicted to the he not. Judge Marquardt everything her that long support told how he had been addicted. okay” daughter against Judge Marquardt, "work out because his allegations would of his boyfriend going to take Tiffany's an Butch "was Summerlin to the district court submitted po- rap marijuana.” The official report De- the for the from the Phoenix Police official 3, report report that Barbara Moffett partment The lice also states dated June police of by Judge in 1991 on the basis purchase marijuana told Phoenix details a of Marquardt knowledge Judge May that Marquardt Moffett in of first-hand from Barbara 1991, marijuana, been frequent user of had intercepted from the United "was a which was earlier], years and delivery met him by police. [sixteen the when she States mail When envelope Judge to be so since.” The awry, report that Mar- has continued went states marijuana Judge arguments of from the and
The amount State from Klink. the trial during have used He neither asked Summerlin whether he Marquardt may anything say is unknown had further to nor or deliberations because advised him his discovery right respect to allocution with not allow on district court did issue, to the sentence. although support there is this record claim that Mar- Judge for Summerlin’s Judge Marquardt then sentenced Sum- having concen- quardt difficulty was either finding aggrava- merlin death after two trating or short-term memo- experiencing ting sufficiently circumstances and no sub- ry loss.2 mitigating stantial circumstances. The judge his event, aggravating based decision as Judge ad- any Marquardt statutory on grounds: circumstances two journed phase proceedings on (1) prior that the a felony defendant had Friday, indicating that he would deliberate involving conviction use or threatened during over the sentence the weekend and person, use violence on another Ariz. would also the motion a consider for new (1981) (amended 13-703(F)(2) § Rev.Stat. However, trial. on Monday, he for- either 1993); and commit- Summerlin got or to rule elected not on the motion for heinous, especially ted the offense in an immediately a new trial and proceeded cruel, manner, or depraved § id. 13- Judge with sentencing. Marquardt began 703(F)(6). He found mitigating no circum- hearing simply announcing case stances. any- and inquiring whether Summerlin had legal
thing
say
why
or
cause to show
day,
same
Judge Marquardt
also
judgment
pro-
and sentence should not be
sentenced James
Fisher to
Clifford
death.
legal
nounced. Klink stated he
no
knew of
Fisher had been
with
charged
murdering
cause.
stated
had
Summerlin
that he
Bailey
Marguerite
relation
Brenna
—no
judgment
motion to vacate the
for the Bailey
a blunt
instrument.
See
—-with
judge to
judge
Fisher,
consider. The
examined State v.
141 Ariz.
686 P.2d
motion,
recess,
(1984).
took five-minute
then
As in the case with Sum-
denied it.
judge
merlin,
then
oral
Judge
heard brief
found
Marquardt
aggra-
two
Judge Marquardt
in which
Despite
sent a cashier’s
heinous
meantime,
In the
the United States Su
sufficiently substan-
igating circumstances
preme
granted certiorari in
v.
Court
State
leniency.
Id. at 775-76.
tial to call for
267,
(2001),
Ring, 200 Ariz.
A divided
of this merlin’s
all
This decision exhausted
of Summerlin’s
opinion
issued its
on October
part
potential
state remedies.
Woods
affirming the district court
Cf.
(8th
Kemna,
1244, 1245-46
Cir.
13 F.3d
reversing
part.
See Summerlin
Cir.2001).
(9th
1994)
Stewart,
petitioners need
(noting
that habeas
the petition itself. Murphy, See Lindh v. Summerlin alleges that he was denied (1997). L.Ed.2d 481 the effective assistance of counsel at the guilt phase of his murder trial violation Summerlin argues appeal that: of the Sixth Amendment as interpreted in 1. He did not receive effective assis- Strickland v. Washington, tance of counsel during guilt We phase of his trial violation of his review the dismissal of a rights petition habeas Amendment; under the Sixth novo, de including the questions mixed statute, Arizona death law and fact raised alleging claims him, inef applied to is unconstitutional fective assistance permits counsel. See judge rather than Williams v. Woodford, to determine the 306 F.3d ele- (9th ments necessary Cir.2002); for a capital Calderon, sen- Hendricks v. tence; (9th 1032, 1036 Cir.1995). F.3d 3. Summerlin's claim that his counsel had a lin’s argument counsel clarified at oral conflict of implicate guilt interest does not the claim concerning judge's impair- the trial phase argument because his is that he was ment judge’s was limited to the penalty phase deprived of a favorable sentence. Summer- deliberations.
1093
know, that
he
claim,
If he did
he did not know
this
Summerlin
on
prevail
To
perfor
what was
doing
wrong.
first
that
was
must demonstrate
objec
an
fell below
of his counsel
mance
Christensen,
32,
P.2d
State v.
129 Ariz.
628
reasonableness, and sec
of
tive standard
(1981).
580, 583
probability
“there is
reasonable
ond that
charged,
At the time
Summerlin
that,
er
unprofessional
counsel’s
but for
already
rejected
had
the affirma-
rors,
of the
would
proceeding
the result
of
capacity.
tive defense
diminished
See
Strickland, 466 U.S.
different.”
have been
Mott,
1046,
536,
187
P.2d
v.
Ariz.
931
State
satisfy
2052. Failure to
104 S.Ct.
(“Because
(1997)
legislature
1051
has
test obvi
prong of
Strickland
either
for a
de-
provided
capacity
diminished
to consider the other. See
the need
ates
fense,
consistently
we have since
refused
687, 104
2052.
id. at
psychiatric testimony
negate
to
to allow
“strong presumption
with the
begin
We
intent.”). Thus, the
that
specific
situation
conduct falls within
wide
that counsel’s
Klink was
Pirtle
confronted
unlike
professional
reasonable
assis-
range of
(9th
Morgan,
v.
313 F.3d
1169-73
tance,”
acknowledgment
with the
Cir.2002) (holding that counsel had been
scrutiny
perfor-
“[j]udicial
counsel’s
constitutionally
not assert-
ineffective for
Id. at
highly
must be
deferential.”
mance
capacity
a diminished
defense then
ing
However,
2052.
defense
law).
Washington
available under
duty
“a
to make reasonable
counsel has
had
The Arizona
Court also
de-
or to make a reasonable
investigations
held,
law,
a matter of
that criminal
as
investigations
particular
that makes
cision
not present psychiatric
could
defendants
Id. at
Dr. Garcia
of Arizona later
Summerlin’s “ex-
clearly suffering
psy-
Summerlin
purposeful
actions demon-
cessive
It thus
reasonable
epilepsy.
chomotor
just
‘reactionary’
strate more than
homi-
investigate
possibility
this
for Klink not
Summerlin,
675 P.2d
cide.” State
—
Wiggins,
U.S. at -
further.
theory
Cf.
694. The
underscored this
State
-,
an
(upholding
at 2536-38
presentation
photographic
with
of graphic
against
claim
counsel
ineffective assistance
wounds sus-
evidence
numerous
investigation despite promis
who curtailed
tes-
by Bailey.
tained
The State’s witness
*13
discovery).
ing
preliminary
leads
to
any
tified that
one of the blows
the
Likewise,
inability to
given the doctors’
kill
vic-
victim’s head was sufficient to
the
Klink’s
decision
diagnosis,
make a
tactical
numerous,
tim,
lacerations
yet
deep
were
what
he
forgo
to
little evidence
presenting
the photographs.
evident from
certainly
was
within the
epilepsy
had of
questioned during
Klink was not
the
professionally competent
range
“wide
post-conviction
his
hearings about
choice
Strickland,
at
assistance.”
466 U.S.
psychiatric evidence of im-
present
not to
2052;
Vasquez,
see also Harris v.
pulsiveness,
we
know whether
so
do not
(9th Cir.1990) (“It
949 F.2d
However, after
strategic.
this decision was
to choose not
acceptable
strategy
also
trial
record,
carefully reviewing
the
the
district
they
testify
call
to
when
psychiatrists
to
that
is no
court concluded
there
reasonable
subjected
can
to cross-examination
jury
acquitted
have
probability the
would
equally persuasive psychiatric
based on
murder
first-degree
Summerlin of
had
conclu-
opinions that
reach
different
Klink introduced evidence of Summerlin’s
sion.”).
personality. The district court
impulsive
testimony
been
Psychiatric
would have
therefore concluded that Summerlin could
concerning
impul-
admissible
Summerlin’s
as
prejudice
not establish Strickland
to
personality
pre-
to show
sive
absence
this claim. See
at
S.Ct.
U.S.
Ricketts, 798
meditation. See Vickers v.
(“An
counsel,
if
by
profes-
error
even
(9th Cir.1986).
Howev-
F.2d
372-73
unreasonable, does not warrant
sionally
case,
er,
of the
under the circumstances
judgment
aside the
of a criminal
setting
he was
has not shown that
Summerlin
proceeding if the
had no effect on
error
failure
introduce such
prejudiced by the
judgment.”).
the
pre-
testimony. The basis
the State’s
was cor-
The district court’s assessment
theory was not that
meditation
Summerlin
crime;
testimony on this
rather,
psychiatric
rect. The
planned
it was that
had
general
point
have been limited to
required premeditation
he
would
formed
during
commission of the crime. To
behavioral ten-
description
of Summerlin’s
the cir-
prove
the State relied on
point,
theory,
its
this
dencies. Given
State’s
crime,
surrounding
includ-
cumstances
only marginal probative
would have had
ing
fact that sexual assault occurred
determining
whether Summerlin
value
prior
the murder and the fact
during the commis-
premeditation
formed
object
had retrieved a blunt
Summerlin
jury was instruct-
sion of the offense. The
murder.
after
assault to commit the
properly
premeditation
ed
State’s
statement of
theory, which was
correct
relied on the uncontro-
also
State
context,
law.
In this
and consid-
to how
murder was
verted evidence as
evidence,”
“totality
addi-
committed,
ering
had
of the
specifically
Bailey
testimony
psychiatric
tional
would not
raised the
challenge
constitutional
in col-
probability
a “reasonable
generated
post-conviction
have
lateral
proceedings rather
juror would
that at least one
have struck a
than on
appeal.
direct
—
Wiggins,
different balance.”
U.S.
Because the
argued
Warden has
-,
Thus,
123 S.Ct. at
Summerlin
Lane,
Teague
a “probability
has not established
sufficient
(1989),
S.Ct.
1099
rule, the Teague
bar does not
liberty.”
cation
concept
of ordered
implicit
(internal
If,
contrast,
by
procedure
at
311,
quota
apply.
1060
at
109 S.Ct.
Id.
omitted).
is
rule for Teague
The
Court
issue
considered
new
marks
tion
proceed
court
purposes, the
must
exception
the second
had
explained that
whether
step
third
and determine
either
components,
combining
formulated
two
exceptions applies.
dissents in
two announced
Harlan’s
aspects
Justice
307,
Teague,
at
109
The
thus limit
489 U.S.
S.Ct. 1060
Mackey.
Desist
against
(plurality).
presumption
rules of
ret-
exception for “watershed
ed the
if the
rule
roactivity
only
is overcome
new
procedure”
procedures
to those
criminal
understanding
category
certain
prohibits
punish
our
“a
that both “alter
must
elements that
be ment for a class
defendants because of
procedural
bedrock
offense,” Penry
particular
Ly
of a
their status or
v.
to vitiate
fairness
found
2934,
conviction,”
Mackey,
naugh,
401
492 U.S.
(quoting
id.
(internal
1160)
(1989),
693,
quotation
abrogated
mer, 380
85 S.Ct.
stantive” those
that
pri-
U.S.
decisions
remove
(1965);
Trust
mary
purview
However difficult it is to
for a
construction of
federal statute.
though,
distinction
“[t]his
between sub
Teague, Chief
important
Rehnquist
is an
Justice
ex
procedure
stance
one
Bousley,
plained,
inapplicable
“is
the habeas context.”
the situation in
1604. In
which this Court
giving shape
meaning
decides the
of a
distinction,
important
by Congress.”
this
criminal statute enacted
reason,
Court has understood decisions of “crimi
Id.
recently
For the same
we
de
nal
to be those
procedure”
decisions that
termined that the rule
announced Rich
implicate
process
States,
how the criminal trial
ardson v. United
Teague,
functions. Under
those
(1999),
deci
1101
jury,
judge,
a
rather
than
must
at 1055-
ed that
a
Teague purposes.
331 F.3d
Dashney,
v.
find
in a
United States
56;
aggravating
52
circumstances
see also
Cir.1995). Thus,
addressed,
Ring’s
(10th
thus
298,
holding
be-
case.
at
299
F.3d
“analyz[ed]
the
cause Richardson
expressly
part,
procedure by
any
least in
which
trial must be conducted. See Can-
opposed
‘elements’ as
what constitutes
”
Mullin,
offense,
(10th
989,
of an
non v.
or ‘means’
F.3d
994
brute facts
297
Cir.2002)
substan-
Ring
Richardson
rule
announced was
(assessing
operation
Montalvo,
law).8
Teague purposes.
331
tive for
on Oklahoma
F.3d at 1056.7
In the context of substantive Arizona
particular,
In the habeas context
law, however, Ring
criminal
did more than
observed,
Becker has
there
Judge
Chief
strictly procedural
question.
answer
fall neatly
cases that do “not
are those
Apprendi,
Thus,
Ring
is unlike
in which
procedural
under
the substantive or
either
expressly
declared
United States v.
category.”
doctrinal
impact
that its decision had no
on substan-
Woods,
Cir.1993).
(3d
669,
F.2d
677
986
law, noting
“[t]he
tive criminal
sub-
cases,
is to
approach
In such
“the best
Jersey’s
stantive
for New
enhance-
basis
at
is neither
recognize that
case
[the
issue]
475,
at
ment
not at issue.” 530 U.S.
Id.
procedural.”
entirely
nor
substantive
contrast,
By important
S.Ct. 2348.
Ring is such a decision.
at 678.
basis for Arizona’s
sen-
substantive
sense,
precisely at issue in
tencing scheme was
Ring
Apprendi
In one
—like
—an-
Ring.9 Ring rendered Arizona’s substan-
Ring
rule:
mandat-
procedural
nounced a
established, viz.,
contrast,
through
States
must be
submission
opinion
7.In
our
United
Buckland,
(9th Cir.) (en banc),
proof beyond
to the
and
a reasonable
effected
Id.
law,
matter of
restoring, as a
sub-
murder
In
Arizona abolished the death
law,
legal para-
an earlier Arizona
stantive
initiative,
penalty
state
Dec.
see Act of
in
murder and
murder
digm which
8, 1916,
Laws,
Ariz.
Session
Initiative
with
separate substantive offenses
dif-
are
Measures,
4-5,
and Referendum
the
but
essential elements and different
ferent
penalty
1901 death
statute was restored
is,
potential punishment.
of
That
as
forms
political
through similar
means in 1918.
particular
to the
Arizona murder
applied
See Act of Dec.
Sess.
Ariz.
here,
Laws, Initiative
Ring’s holding
and
Mea-
statute
issue
Referendum
sures, at 18.
Teague
for
purposes.
“substantive”
See
Bousley,
onment ...
curiam).
at the discretion of
(per
or,
jury trying
same,
upon
the The
impact
particularly
Furman
is in-
Rather,
consequence.
harmless error
step
"syllogism.”
first
of our
See Dissent at
very
Supreme
analysis
focus of the
Court’s
aspect
“substantive”
proves Ring
two
Apprendi
cases
dis-
separate
rests on more than the creation of a
Apprendi
rests,
addition,
expressly
tinct:
refused to reach
substantive offense. It
substantive
"[t]he
basis” of law at issue in
Court's wholesale invalidation of
case,
2348;
see 530
U.S. at
sentencing
Arizona’s
scheme. See
Ring,
conversely, did
Bousley,
reach the relevant sub-
1103
a death sentence
if
impose
no court to
There was
in this context.
struetive
(1)
ret-
doubt,
that Furman had
aggravating
found
one or more
circum-
importantly,
Illinois,
(2)
v.
408
See Moore
roactive effect.
counter-vailing
and
no
stances to exist
2562,
800,
786,
38 L.Ed.2d
92 S.Ct.
U.S.
“sufficiently sub-
mitigating circumstances
(1972)
Furman on habeas
(applying
706
leniency.”
for
stantial to call
Id.
State
Johnson,
review);
v.
457
States
United
Richmond,
186,
114
41
v.
Ariz.
560 P.2d
2579,
550,
587,
73 L.Ed.2d
102 S.Ct.
(1976),
Supreme
upheld
the Arizona
Court
same).
(1982)
Following
(discussing
202
constitutionality
pen-
of the 1973 death
and Stewart v.
of Furman
the dictates
alty statute.
2845,
Massachusetts,
845, 92 S.Ct.
408 U.S.
Supreme
But the
Court’s decisions in
(1972),
Supreme
Court
744
33 L.Ed.2d
Ohio,
586,
Lockett v.
438 U.S.
98 S.Ct.
Arizona death sen-
a number of
vacated
2954,
(1978),
L.Ed.2d 973
and Bell v.
57
tences,
and on collat-
appeal
on direct
both
Ohio,
637,
2977,
98
57
438 U.S.
See, e.g.,
v.
review.
eral habeas
Alford
(1978),
un
L.Ed.2d 1010
which declared
939,
2874, 33
92 S.Ct.
Eyman, 408 U.S.
penalty
constitutional death
statutes that
(1972) (habeas);
v.
Kruchten
L.Ed.2d 762
right
restricted the
of the defendant
934,
2853,
92 S.Ct.
Eyman, 408 U.S.
mitigating
circumstances in
(1972) (habeas);
show
Ey
Sims v.
L.Ed.2d 748
934,
2850,
man,
questions
raised anew
of whether the
33 cases
(1972) (habeas);
v.
Gause
L.Ed.2d 746
constitu
pass
1973 Arizona statute could
192,
Arizona,
815, 93 S.Ct.
end, in
v.
Bishop
tional muster. To this
(direct review).
In light
L.Ed.2d 71
Arizona,
810,
69,
Ari
precedent, the
Supreme
of this
Court
(1978),
Supreme
L.Ed.2d 103
Court
declared the Arizona
Supreme
zona
vacated and remanded an Arizona death
to be unconstitution
penalty
death
statute
light
sentence for reconsideration
and Fourteenth
Eighth
al under
remand,
Ari
Following this
Lockett.
Endreson,
Amendments. See State
zona
Court held that Arizona’s
(1973).
P.2d
Ariz.
1973 death
statute was unconstitu
acknowledged, after examin-
Arizona court
precluded
tional insofar as it
the defendant
ing the
of the relevant
structure
cir
proving non-statutory mitigating
Court,
statutes,
that the
criminal
Watson,
Ariz.
cumstances. State
Furman,
‘capital
had “abolished
through
(1978).
1253, 1257
586 P.2d
In re
substantively.
in Arizona”
offenses’
thereafter,
the Arizona
Soon
Tarr,
Ariz.
508 P.2d
pen-
amended the
death
legislature
State’s
short,
of Furman in
the effect
by de-
alty statute to conform to Lockett
Arizona’s
murder statute
declaring
mitigating circum-
fining as
relevant
unquestionably
sub-
unconstitutional
by the state
“any
stances
factors offered
stantive.
which are relevant
de-
defendant
later,
yearA
Arizona enacted a
termining
impose
whether to
sentence
new
“capital
new
offense” statute. This
included,
These factors
less than death.”
sentencing
statute established
standards
to, the factors enu-
but were not limited
sentencing
provided
cases and
May
itself. Act of
merated in the statute
by judge,
by jury.
rather than
See Act
Sess)
144, 1,
§
1979 Ariz.
Laws
ch.
14, 1973,
138, 5,§
1973 Ariz. Sess.
May
ch.
added var-
legislature
at 450-51. The
966, 968-70. The 1973 statute iden-
Laws
mitigating
factors
aggravating
ious
aggravating
tified six
circumstances
the terms of the statute
for sentenc-
mitigating
four
circumstances
1985, but,
during
period,
this
required the
ing courts to consider and
pen
structure of Arizona’s death
ing responsibilities.”).
essential
We concluded in
*21
1983,
alty statute remained
same.
In
that,
Adamson
because the Arizona stat-
con
United States
Court
ute required
finding
of aggravating
that,
firmed
to be constitutional under the
factors before the death penalty could be
Amendment,
Eighth
capital
a state’s
sen
imposed, the Arizona statute made these
tencing
“genuinely
scheme must
narrow aggravating factors elements of the “dis-
persons eligible
class
the death
for
murder,”
tinctive offense of capital
reasonably
and must
penalty
justify the mere sentencing factors
in-
relevant
imposition of a more severe sentence on creasing
punishment
for a lesser of-
compared
the defendant
to others found
Id. at
(emphasis
fense.
1026-27
origi-
guilty
Stephens,
of murder.” Zant v.
462 nal). Accordingly, we held that “Arizona’s
862, 877,
2733,
U.S.
103 S.Ct.
77 L.Ed.2d
aggravating circumstances function as ele-
(1983). Finding
aggrava
least one
ments of the crime
capital
murder re-
ting factor
persons
“narrows the class of
jury’s
quiring
determination.”
Id. at
eligible
penalty.”
for the death
Lowen
1027. Based on this understanding of Ari-
231, 244,
Phelps,
field
law,
zona
we found Arizona’s identification
98 L.Ed.2d
Ari-
and treatment of the “elements of the
zona’s substantive revisions to
capital
its
capital
crime of
sentencing
murder as
fac-
murder
designed
statute were
pass
tors for determination by judge,”
rather
requirements. Thus,
these constitutional
than as offense elements to be determined
as a result of Furman and
progeny,
its
jury,
to be “impermissible]” and
the crime of
murder
Arizona
“in violation of the Sixth Amendment.”
substantively
altered. As Justice
Id. at 1029.
Thomas has observed:
the area
“[I]n
capital punishment,
area,
any
unlike
other
Walton,
In
abrogat-
we have imposed special constraints on a
ed our decision in Adamson.
In pertinent
legislature’s ability to determine what
part, Walton held that aggravating circum-
facts shall
punishment-we
lead to what
stances under Arizona law were only “sen-
have
legislature’s ability
restricted the
to tencing considerations,” not “elements of
define
Apprendi,
crimes.”
530 U.S. at
the offense” of capital
murder.
Id. at
522-23,
(Thomas, J.,
reasonable
operation
In assessing
Apprendi,
the
Walton,
is,
Ring
displaced
That
when
fact,
recently explained
Scalia
Justice
to declare Arizona's understand-
effect was
underlying
“the
‘murder’ is
offense of
ing
separate
of the
crime of
and treatment
distinct,
included
of ‘mur-
lesser
offense
murder,
it,
capital
as Arizona defined
un-
plus
aggravating
or more
circum-
der
one
And
overruled
constitutional.
when
” Sattazahn,
at 739.
stances.’
Walton,
aggrava-
Arizona’s
2’epositioning
rea-
Noting
principled
there
“no
separate
ting
of the
factors
elements
...
an
distinguish
what constitutes
son
capital
reshaping
murder and
offense of
Amend-
Sixth
purposes
offense for
law,
murder
of Arizona
structure
con-
guarantee and what
jury-trial
ment’s
altered
the substance of
necessarily
both
purposes
‘offence’
stitutes an
murder
offense
Jeopardy
Fifth
Double
Amendment’s
murder
law
substance of Arizona
Clause,”
Scalia concluded “that
Justice
Jones
United
generally.
more
Cf.
cir-
aggravating
‘murder
one or more
plus
States,
separate offense from
is a
cumstances’
(1999) (holding that
L.Ed.2d
(also
simpliciter.”
‘murder’
Id. at 739-40
carjacking
established
federal
statute
“ ‘first-
proposition
citing Ring for
than
offenses rather
a sin-
separate
three
...
understood
degree
properly
murder’
maximum
gle
with a choice of three
crime
‘first-
included
to be
lesser
offense
response
Ring,
the Ari-
penalties).
circum-
plus aggravating
degree murder
zona
Court vacated all death sen-
stanee(s)’ ”);
Apprendi
also
see
appeal,
cases
on direct
pending
tences in
J.,
(Thomas,
Smith,
concur-
Ariz.
P.3d
see State v.
(“[I]f
legislature
ring)
defines some offense of “capital murder” in Arizona and
provides
then
core crime and
for increas-
reinserted the distinction between murder
of that
ing
punishment
upon
crime
murder into Arizona’s substan
fact[,]
aggravating
...
finding of some
tive criminal law structure. Under the
aggravating
and the
fact
core crime
to-
Court’s articulation of “substan
aggravated
an
gether constitute
crime....
then,
tive”
in Bousley,
decisions
Ring an
aggravating fact is an element
rule,
nounced a
Bousley,
“substantive”
crime.”).
aggravated
U.S. at
for it “altered
meaning
of [Arizona’s] substantive
Ring compelled Arizona to reorder its
Santana-Madera,
criminal law.”
260 F.3d
substantive murder law in order to recog-
139;
Cannon,
(hold
In
the Arizona
Court
Zant,
alty.”
at
U.S.
correctly
Ring’s
rule
par-
concluded
Ring
required
further
the Arizona
tially procedural
Teague.
under
For the
legislature to amend the Arizona murder
stated, however,
previously
we re-
reasons
requirements
statute to conform to the
spectfully disagree
Towery’s
with
conclu-
the United States Constitution.
entirely
Ring’s
procedural.
sion that
rule is
Ex
Supreme
The Arizona
Court’s
Post
Ring’s
capital
of Arizona’s
invalidation
analysis Ring
Facto
II likewise does not
under the
murder statute
United States
II,
analysis.
Ring
alter our
the Arizona
than
Constitution did more
alter “who de-
applying
Supreme Court concluded
at
It
Towery,
cides.”
64 P.3d
re-
sentencing
previ
Arizona’s new
statutes to
redefined,
Arizona
and it
structured
law
did not violate
ously convicted defendants
matter,
oper-
how that law
substantive
against Ex
prohibitions
the federal or state
is, thus,
It
incorrect to conclude that
ates.
II,
application
Ring
Post Facto
of laws.
repositioning
aggravating
factors as
conclusion,
criminal
which is
the L.Ed.2d 30
Correll,
purposes. Analyzed
Teague,
ue
decision
State
under
preme Court’s
(1986),
468,
legislative response
at issue
rule,
by announcing
procedural
a purely
Teague
undertaking
procedural
by announcing,
but
as matter of substan-
analysis, we first must ascertain the date
law,
understanding
tive
Arizona’s
that Summerlin’s conviction became final.
separate
treatment of the
crime of
Caspari,
Teague requires analytical a different S.Ct. Such examination is not by lens from the one used Arizona to Supreme limited Court decisions. Supreme II. Ring Court We do not Taylor, 362, 381, v. Williams 529 U.S. necessarily assess whether the action of 146 L.Ed.2d Sum- legislature, the Arizona in response to merlin’s conviction Ring, effected a became final before the change “substantive” law; rather, Supreme Ring, we examine Court had decided which whether Walton, by the rule announced overturned Supreme abrogat- Court which turn in Ring Teag- was a “substantive” one for ed our decision Adamson. Ring argument contends that does not
Summerlin fails because there is no doubt announce a new rule because Adamson announced new rule as that sentencing had found that Arizona’s term is construed for Teague purposes. “right scheme denied defendants the to a proceed We must then stage the third jury decision the elements of the crime analysis, namely whether either of Teag- violation the Sixth and Fourteenth ue’s two exceptions apply. Amendments.” 865 F.2d 1023. Re B
gardless of the
argument
merits
such
op
convictions made final
Teague
The first
exception examines
time,
period
erative time
is 1984. At that
whether certain primary conduct has been
in fact
exact
Summerlin
raised this
chal decriminalized or whether certain classes
Court,
lenge
to the Arizona
of individuals are
speci-
immunized from
soundly rejected
which
it.
State
Sum
fied
punishment by
forms of
newly
merlin,
“[T]he
doctrine Vali plicable to the instant ruling.
reasonable, good
dates
faith interpreta
C
tions of existing precedents
made
state
though they
courts even
fall
Teague
are shown to be
To
within the
excep-
second
contrary
O’Dell,
tion,
later decisions.’”
seriously
new rule must:
en-
U.S. at
(quoting
S.Ct. 1969
Butler
accuracy
hance the
of the proceeding and
*26
McKellar,
407, 414,
v.
494 U.S.
110 S.Ct.
alter our understanding of
pro-
bedrock
1212,
(1990)). Further,
ably Ring, did. at 536 U.S. 122 S.Ct. 2428. In considering Ring’s effect on accu- racy proceeding, important of the it is to say
We therefore cannot
that a state
note that
capital
in
this is a
case.
objectively
court
1984 “would have acted
“Where
unreasonably
imposes
the State
by
extending
penalty
the relief
death
for a
O’Dell,
crime,
sought
later
in
...
particular
Eighth
federal court.”
521
Amend-
U.S. at
process.” met). Thus, face, 720 on its 808, 824, 111 115 L.Ed.2d also must S.Ct. Ring at in to Teague, procedure the focus on the issue sufficient Under generally component Teague’s meet the first of sec- proceeding” the ... “accuracy of Moreover, “aceurac[y][in] exception. upon mean de- ond close ex- is understood amination, the actual guilt.” impact procedural innocence or Gra- of termining] ... (inter- further change by provides dictated ham, at 118 892 506 U.S. S.Ct. omitted). finding that However, support rule marks quotation nal accuracy enhances the of the determina- Supreme Court has as the United States capital tion of murder Arizona. stated, “ proceedings also penalty-phase trial guilt hallmarks of the ‘have the recently Court observed ” Sattazahn, 123 at S.Ct. 737 or innocence.’ that, light past thirty years of Missouri, (quoting Bullington experience, superiority judi- actual “the 430, 439, 68 L.Ed.2d factfinding capital cial is far from cases (1981)). reason, reject- For this a verdict Ring, evident.” at U.S. S.Ct. ing imposition of the death procedure 2428. An examination of the at capital prosecution. prohibits subsequent apparent why issue makes several reasons id.; Bullington, 451 at See U.S. fact-finding by jury, rather than This is consistent with the S.Ct. 1852. judge, accu- likely heighten is more consideration of murder substantive racy capital sentencing proceedings ordinary as a crime distinct murder. Arizona.
Sattazahn, Accordingly, at First, penalty-phase presenta- context, Teague’s in the reference judges greater tions to bear much resem- “accuracy proceedings” in the contem- blance to traditional non-capital sentencing the ultimate verdict in both the plates hearings “ required than to proceedings penalty phases. conviction and guilt ‘have the hallmarks of the trial on ” long recognized has Sattazahn, or innocence.’ at S.Ct. context, that, Eighth in the “the (quoting Bullington, greater degree requires 1852). Amendment Penalty S.Ct. phases jury trials factfinding and accuracy than would be orderly are characterized presenta- noncapital true in a case.” Gilmore v. tion of evidence and argument. con- Taylor, trast, penalty-phase presentations to Ari- (1993).11 Indeed, as Jus- judges zona are capable being extremely observed, Kennedy “[a]ll tice has of our truncated with heavy affairs reliance on Eighth jurisprudence Amendment con- presentence reports sentencing memo- randa, cerning capital sentencing is directed to- with proceedings formal court reliability ward frequently the enhancement of to a argument by limited brief accuracy Sawyer, some sense.” prod- counsel. Whether this has been the 2822. Reformation participants treating penalty- uct of the capital sentencing procedures phase sentencing has been trials as mere hearings, presumed requirement to meet the first or whether product this is the natural *27 substantially new rule that the enhance the the shorthand typical communication accuracy legal of the at proceeding non-capital sentencing issue. un- proceedings is (but emphasizing However, See id. that the second known. the results are clear. A merely <http://justice.poli- 11. This concern is not theoretical. available at Liebman, al., See James S. et System: Broken cy.net/jpreport/>. Cases, 5 Capital Error Rates 1973-1995
mi Indeed, expected ignore. cases or she is recent Ninth Circuit survey of quick See, penalty-phase proceedings focus of before point. Arizona illustrates Stewart, 975, judges presentence report F.3d 988 has been the Beaty v. 303 e.g., Cir.2002) (no officer, (9th by probation mitigating pre prepared evidence rather sented), filed, formally presented cert. No. 02- than evidence and test- petition for (Jan. 2003); 1611, 23, ed at trial.12 3530 71 U.S.L.W. Stewart, 1201, 241 v. F.3d
Lambright
Although presentence reports are an
Cir.2001) (no
(9th
pre
argument
1202-03
tool,
extremely
sentencing
by
useful
their
sented,
evidence consumed
mitigating
and
they
nature the information
contain is
denied,
cert.
534
transcript pages),
three
“generally hearsay,
hearsay
even remote
930,
1118,
L.Ed.2d
151
892
at the
third
second and
remove.” United
Stewart,
1004,
(2002);
189 F.3d
Smith v.
(9th
Frushon,
663,
v.
10 F.3d
666
States
(9th Cir.1999) (attorney asked court
1010
Cir.1993)
Fine,
(quoting United States v.
evidentiary
legal
on what
for advice
(9th Cir.1992)).
596,
975 F.2d
603
As
could be relevant
estab
considerations
result, presentence
generally
are
reports
only
argument
brief
lishing mitigation;
any
inadmissible at trial to
of the
prove
Stewart,
v.
137
day
sentencing);
Correll
hearsay reports they contain. See United
Cir.1998) (no
(9th
1404,
F.3d
1410
defense
Matta-Ballesteros,
754,
States v.
71 F.3d
only
argument);
brief
presented;
witnesses
(9th Cir.1995),
767
as amended
98
(no
ourne,
1113 ity presentation “the hallmarks of of and diminish one bears the risk of ing is not guilt or innocence.” an a trial on erroneous verdict. not to of this discussion is point A primary second accuracy-enhancing in whether trial errors occurred
examine
jury
capital
role of a
cases is to make
one,
case, including
but
any
this
particular
important
the
moral decision's inherent in
analyze
jury
a
to
requiring
to
whether
verdict.
rendering
capital
a
The Supreme
findings would reduce
make the relevant
emphasized
Court “has
that a sentence of
A
of an erroneous decision.
re-
the risk
death must
an
reflect
ethical judgment
judge
the cases demonstrates that
view of
guilt’
about the
of
‘moral
the defendant.”
sentencing
been
proceedings have
Indiana,
1036, 1038, 106
v.
475
Schiro
U.S.
by
large
a
of inad-
contaminated
volume
1247,
(1986) (Mar
S.Ct.
evidence and marked
truncat-
missible
shall, J., dissenting from the denial of cer-
parties.
ed
the
We have
presentations
tiorari)
Florida,
Enmund
(citing
v.
458
that the
could
presumed
sentencing judge
800-01,
782,
102
U.S.
S.Ct.
73
relevant,
truly
the
evi-
sort out
admissible
(1982)).
L.Ed.2d 1140
One of the critical
from this morass. The relevant
dence
jury
functions of a
a
case is to
question
judges
is not whether
have been
“maintain a link between contemporary
so,
subjecting pen-
do
whether
able to
but
community
penal
values and the
system.”
evidence to the crucible
alty-phase
Illinois,
Witherspoon
391
v.
U.S.
by jury
trial
formal
would reduce
risk
n.
20 L.Ed.2d
of error.
Thus, “in
sentencing
a capital
proceeding,
has ‘a strong
Government
There is little doubt that it would. As
interest
Kalven,
express
having
jury
Zeisel de-
Harry
Jr. and Hans
conscience of
on the
community
it in their
on the
ultimate
study
question
scribed
seminal
”
States,
life
Jones v.
jury system:
or death.’
United
144 L.Ed.2d
to his wide
with
experience
addition
(quoting
Phelps,
the likelihood
the defendant before
Lowenfield
guilty,
judge
him is
is
to
exposed
(1988)).
law,
L.Ed.2d 568
prejudicial information which the
“
defendant,
regard
right
its
for the
and women of
jury may
‘[T]he men
to screen out of the
aims
evaluation
a microcosm
regarded
be
of the commu-
”
guilt
his
innocence. The law’s ideal
Alabama,
nity.’ Harris
may
something
in this situation
of a
L.Ed.2d 1004
luxury.
point is
libertarian
Our
(1995) (Stevens, J., dissenting)
(quoting
the law
it
easily
cannot
achieve
Royal
Capital
Commission
Punish-
jury.
without
191,9-1953,
(1953)).
Report
ment
Zeisel,
Kalven,
Harry
Jr. & Hans
There
“therefore be no more appro-
could
1966).
(Little,
Jury 127
American
Brown
priate body
decide whether the
fellow-
they
guilty
citizen whom
have found
any place
If there is
which adherence
rules,
evidentiary
penalty
re- murder
suffer the
constitutional
should
death
straints,
prescribed
and the defendant’s confrontation
law or should
by the
receive
Thus,
paramount,
is
Id.
rights
punishment.”
must be when
lesser
as Justice
exposed
concurring opinion
in his
Breyer
defendant
noted
Subjecting
entrusting a
with
penalty-phase presenta- Ring,
jury
authority
death.
of a
verdict is an
rigors
impose
important
tions to
and restrictions
safeguard,
necessarily
improve
qual- procedural
jury
will
because the
trial
*30
penalty
sought.
attuned to the com
in which the death
“are more
members
sensibility,”
contrast,
“reflect more
munity’s
Judges, by
penal-
moral
confront death
composition
experi
accurately the
ty
regular
cases on a
and sometimes rou-
whole,”
community as a
ences of
instance, Judge
tine basis in Arizona. For
the conscience of the com
“express
act to
Marquardt,
sentenced
who
Summerlin
question
ultimate
of life or
on the
munity
death,
on
imposed capital punishment
615-16, 122
S.Ct. 2428
death.” 536 U.S.
in a separate
James Fisher
case on the
J., concurring
judgment)
in the
(Breyer,
day.
same
A
inference from
reasonable
(internal
quotation
citations and
marks
brought
by imposing
the habituation
about
omitted).16
capital punishment under near rote condi-
gen-
is not
true as a
principle
This
judge may
likely
tions is that a
be less
verdicts,
capital
in
murder
but
eral matter
reflect the current conscience of the com-
application to determination
specific
it has
munity
likely
impos-
and more
to consider
aggravating
factors con-
of some of
ing
penalty
just
a death
another crimi-
penalty
in Arizona’s death
scheme.
tained
Indeed,
questioned
nal sentence.
when
one of the
example,
aggravating
For
two
about another
in which
case
his
by Judge Marquardt
found
circumstances
judgment
being
assailed because he
that the
in this case was
murder was com- purportedly slept through portions of the
heinous,
especially
mitted “in an
cruel or
penalty-phase hearing, Judge
short
Mar-
§
manner.”
depraved
Ariz.Rev.Stat.
13 quardt answered that he was unable to
703(F)(6).
Arizona Supreme
case,
recall the
but “said he had no doubt
“admittedly
are
has noted that these
broad
the death
was warranted.”
Vickers,
subjective terms.” State v.
Liptak, Judge’s Drug
Adam
atUse
Issue
Ariz.
768 P.2d
1188 n.
Sentences,
TIMES, May
in 2 Death
N.Y.
of whether a crime is “hei-
The assessment
guys
at Al. “These
have sen-
depends
nous”
“mental state and
themselves,”
tenced
reported
he is
to have
perpetrator
attitude of the
as reflected in
said. Id.
Gretzler,
his words and actions.” State v.
course, Judge Marquardt’s
Of
(1983) (cita-
conduct is
135 Ariz.
659 P.2d
omitted).
representative
not at all
discussing
tions
As we noted
judiciary
aggravating
point
factor
that must be
this
Adamson:
under-
—a
directly
However,
“These assessments
measure a de-
scored.
the extremity of his
guilt
culpabili-
fendant’s’ moral
and overall
highlights
potential
actions
risk
ac-
ty-traditionally
jury’s
domain of deci-
curacy
loss when a
decision is re-
sion.”
These assessments
be influenced
capital sentencing
not treat
in accordance
possible acclimation of
judge
to the
capital sentencing process.
jurors
heightened requirements
in with the
that the
Most
Eighth
cases will never sit on another case
imposes. Obviously,
Amendment
juries
sway.
16. The dissent assails the
use
chance that
these views will hold
Moreover,
capital sentencing.
jurors
This
sym-
criticism misses the
the fact that some
feel
presence
imper-
pathy
pity
imply
issue. The
central
of some
or
does not
that the verdict is
See,
jury sentencing
ultimately governed by
fections
does not affect the
these emotions.
juries
ultimately
e.g., Stephen Garvey,
conclusion that
are
more ac-
P.
The Emotional Econ-
judges.
jurors
omy Capital Sentencing,
curate than
While individual
75 N.Y.U. L.Rev.
may
legally
(noting
hold emotional or
inaccurate
the lack of correlation
views,
requirement
unanimity
feelings
sympathy
pity
across
between
and a
vote).
significantly
juror’s
twelve individuals
reduces the
final
case,
the concern is not
Summerlin’s
These reasons
Brey-
underscore Justice
er’s
observation in
merely
danger
theoretical.
that “the
of unwarranted imposition of the penalty
addition,
judges, juries
unlike
do not
cannot be avoided unless ‘the decision to
stand for election Arizona and therefore
impose the death penalty
is made
are
apt
less
be influenced
external
jury rather
by single
than
governmental
”
*31
making
considerations when
their deci-
618,
official.’
same as
making
capital judgment
vacation of a
based
evidence
upon inadmissible
Summerlin
findings
judge-made findings.
sentenced
factual
Although
system perfect,
no
to death.
affecting
A
error is a “defect
structural
to administer
on a
relying
pro
within which the trial
the framework
unquestionably reduces
punishment
ceeds,
simply
than
an error
rather
by reposing trust
twelve
of error
risk
Arizona v. Fulmi
process
trial
itself.”
agree
pres-
must
as to
who
individuals
nante,
beyond
factors
a rea-
aggravating
ence
If structural er
113 L.Ed.2d
doubt,
job securi-
whose continued
sonable
present, “a criminal
trial cannot
ror is
decision, and
not threatened
their
ty is
as a
reliably serve its function
vehicle
solely
is based
on ad-
consideration
whose
innocence,
guilt or
and no
determination of
subject
rigors of
evidence
to the
missible
punishment may
regarded
criminal
*32
cross-examination.
Clark,
fundamentally fair.” Rose v.
478
heightened
account the
at-
Taking into
3101,
570, 577-78, 106 S.Ct.
92
U.S.
Eighth
tention that the
Amendment obli-
omitted).
(1986)(citation
L.Ed.2d 460
cases,
to afford
the inevit-
gates us
Depriving capital
a
defendant of his con-
requirement
must be that
able conclusion
a
a
right
jury
stitutional
to have
decide
jury
findings
made
a
will
of
eligible
death penalty
whether he is
for the
improve
accuracy
of
necessarily
is an error
affects the
murder trials.
within
the trial proceeds.
framework
which
Indeed,
proceeded
the trial has
under a
incorrect,
completely
constitutionally
Teague
requirement
of the
The second
deficient,
short, allowing
framework.
a
provides
newly
an-
exception
constitutionally-disqualified factfinder
a
rule”
nounced rule must be
“watershed
error,
decide the case is a structural
understanding
our
of bedrock
alters
Ring
susceptible
error is not
to harmless-
procedural elements essential to the fair-
analysis.
error
proceeding. Sawyer, 497 U.S.
ness of the
242,
Although Eighth
at
noting
Supreme
Court has
nu-
explained on
Neder that harm-
opinion in
Chief Justice’s
merous occasions that a “truly watershed
a
verdict
protect
would
directed
less error
of a
case” is one
“small core of rules” that
finding under the
on a crucial
State
See,
O’Dell,
“groundbreaking.”
e.g.,
Id.
Amendment in a
case.”
Eighth
1969; Caspari,
U.S. at
noted:
at 421. The court further
948; Graham,
at
S.Ct.
[capital]
cases
Harmless-error review
at
newly
jury verdict
“
tencing
subject
are
to the
proceedings,
analysis. Ring error is one ‘affect-
error
Jeopardy
of the Double
Clause.
constraints
trial
ing the framework within which the
439, 101
Bullington, 451 U.S. at
S.Ct. 1852.
in
proceeds,
simply
rather than
an error
”
Thus,
murder
Ring’s
capital
effect on
Neder, 527
the trial
itself.’
process
Furman,
is akin to that of
which
cases
Fulminante,
(quoting
D In summary, we affirm the district primary argument Warden’s judgment denying court’s pe- Summerlin’s against applying Ring retroactively relies Sanchez-Cervantes, corpus tition for habeas relief from his United States which we Apprendi may first-degree held that not be conviction for murder. We applied retroactively hold, on habeas review. both on procedural substantive and Sanchez-Cervantes, United States 282 grounds, Court’s deci- (9th Cir.2002). However, F.3d in Ring application sion has retroactive analysis our in Sanchez-Cervantes does Thus, cases on federal habeas review. we not conflict with our conclusion that judgment reverse the of the district court First, applied must be retroactively. imposition insofar as it relates to the noted, we Apprendi have the decision in penalty of death. clearly was not one of criminal substantive our penalty- Given resolution of the law. Unlike the in Ring, Apprendi result phase ap- issues based on the retroactive did not cause relevant statute to be not, not, plication Ring, we need and do Second, Ap declared unconstitutional. any reach the merits of penal- of the other prendi errors are not structural and there ty-phase appeal. errors raised on We also subject fore are analysis. harmless-error Buckland, Id. at need not reach the issue of whether cumu- (citing 669-70 277 F.3d at *37 (internal 1184) omitted). quotation marks require lative errors reversal. law, PART; it had erred when it penalty IN REVERSED
AFFIRMED
recognize that the United States
failed to
PART; REMANDED.
IN
judges, rather than
prohibits
Constitution
REINHARDT,
Judge,
Circuit
factual
jurors,
making
critical
deci-
concurring.
in
regarding
life and death
sions
surely arbitrariness
that sur-
cases—is
Judge
excellent
fully in
Thomas’s
join
I
all bounds.
passes
improve
I could not
for the court.
opinion
the Supreme
It
is not uncommon for
I
arguments he has offered.
legal
on the
significant
to make
errors in inter
Court
Ring establishes a new
entirely that
agree
constitution, see,
v.
preting
e.g., Plessy
and that to the extent the
rule
substantive
16 S.Ct.
Ferguson,
it constitutes a water-
procedural
rule is
Hardwick,
(1896);
v.
L.Ed. 256
Bowers
accuracy
rule that enhances
shed
186, 106 S.Ct.
92 L.Ed.2d
478 U.S.
sentencing and alters our under-
(1986);
Arizona,
Walton
procedural provi-
a bedrock
standing of
3047, 111
L.Ed.2d 511
sion.
(1990), and to correct those errors when it
emphasize
separately
I write
see,
mistakes,
e.g., Brown v.
recognizes its
would
unthink-
contrary
that a
result
Educ.,
Bd.
society that
itself both
in a
considers
able
—Texas,
(1954);
L.Ed. 873
Lawrence
seriously
and rational. Few
doubt
decent
U.S. -,
2472, 156
L.Ed.2d 508
generally im-
the death
Arizona,
(2003);
Ring v.
arbitrary
in
manner in this na-
posed
an
2428,
But
there is a limit to arbitrari-
legal system,
of the nature of
view
our
imposi-
ness—even to arbitrariness
relationship
system
of that
ulti-
its
penalty.
executing
tion of the death
And
objective: justice.
mate
people because their cases came too ear-
ly
their
appeals ended before
lack
expresses
peculiar
The dissent
—because
belatedly came to the real-
juries,
confidence
and states that
grievous
community
ization that it had made a
consti-
is not neces-
“conscience
sarily
adjudication
the fairest
for a
interpretation
tutional error
its
of death
*38
(2002);
considerations of race
eral courts defen- affirmed. 82% of that he did. Some courts answer which state cases claim, trial a second hoping who received to assert the dants continued defendants petition state collateral a mind. change after successful would its the Court sentence; 7% of receive a death did not it futile to believed that would be Others found innocent or were those defendants argument to make an continue Recently charges dropped. had their just rejected. a result of the had As Court Illinois, declared a conservative Governor error, some of these individuals Court’s after discover- moratorium on executions executed in violation of already been have penalty was rein- that since the death ing are rights. Others still their constitutional stated, capi- individuals convicted more question before awaiting execution. had been to death row tal crimes and sent may the state now execute those us is: Following a than executed. exonerated Supreme Court persons as to whom pardoned he some of investigation, full (directly indirectly) erroneously ruled on death row and commuted prisoners claims, their constitutional respect with rest.5 one Since sentences of.the executing it from although prevented have people nationwide eight hundred yet whom the had not those as to Court upon row evi- released from death been May the state execute the formally erred? innocence; com- there is no dence of their Alan who are now on “Jeffrey Waltons” yet available those parable statistic prisoners previously who death row—the virtually It is who have been executed.6 (or incorrectly de- correctly argued were actually people that other who are certain arguing) that their executions terred in vio- less those convicted innocent-much unconstitutional, prisoners would be Constitution-currently await lation of the erroneously were turned whose causes execution. prison- Supreme down Court —the of the put problem Let me the abstract right about the Constitution ers who were retroactivity perspective, Supreme wrong? when the Court was clearly possible. it as as In let me state differently, may the state now put To it Arizona, Walton persons knowing that deliberately execute (1990),Jeffrey Alan at in a their death sentences were arrived persuade tried to the then-mem- Walton that violated their constitutional manner jury, Court that a bers possible prisoners will rights? Is judge, must make the critical factual solely be executed the state be- now regarding his ultimate fate. decisions happenstance cause of Su- erred, argument, the rejecting his Court recognized the correctness of preme Court Walton, it now concedes. the Court arguments too late—on their constitutional mistakenly decided that the Constitution date, wholly arbitrary rather than when to a did not entitle defendants it should have? Will we add to all of the penalty phase. trial at the All death row our infecting other arbitrariness adminis- the constitutional prisoners who advanced argument unsuccessfully pure that Walton had tration of the death fortu- See, 5, 2003). e.g., Wilgoren, Citing July As of June DNA Jodi Issue Fair- ed ness, reasonably develop- Governor Clears out Death Row in Illi- new scientific tests—a nois, 12, 2003, at N.Y. Jan. the innocence of at ment—have established Times, wrongly least 128 individuals who were con- Ctr., imprisoned. Feige, victed and See David Penalty 6. See Death Info. Innocence and Innocence, Penalty, www.deathpenaltyin- Dark Side N.Y. June the Death Times, of at 15. 2003, 6, (visit- § fo.org^article.php? did=412 & scid =6 recognized ity of when L.Ed.2d 193 (1990)). respect critical to the its own error with jus- of the Constitution? Can we
meaning I. The executing legal efforts Decision Announces A Pro- tify those whose imper- in our cedural Rule Than point *40 had reached certain Rather A Substan- process day Supreme the tive One. legal fect on the mind, changed invalidating its Court while Ring’s upon A. Similarity Reliance the death sentences of those whose cases to Apprendi waiting slightly
were
further down the
view,
In my
majority opinion
the
wan
line?
ders afield in
by holding
the first instance
think
for a society
I do not
it rational
Ring
that
contains a new
rule
substantive
regarding
decisions
whom it
make its
will
despite the teaching Apprendi
of
v. New
kill
dissenting
manner that my
col-
Jersey, 530
U.S.
120 S.Ct.
suggest. A
leagues
state’s decision to take
(2000), upon
L.Ed.2d 435
which the Su
a
if it
being,
the life of
human
can be
preme Court expressly
deciding
relied in
all,
justified at
must
on a far less
rest
Ring.
Arizona,
Ring
See
v.
at
U.S.
if
arbitrary
society
foundation.
our
And
602,
di’s
the trial court
a
conducted
RAWLINSON,
hearing and
Judge,
Apprendi’s
with
that
Circuit
concluded
fir
TALLMAN,
ing of
whom
several
into the
O’SCANNLAIN and
bullets
home of an
African
Judges, join, dissenting.
family
American
was
Circuit
“motivated
470-71,
by racial bias.”
Id.
I
respectfully
must
from that
dissent
2348. This conclusion resulted in a “hate
of
portion
majority opinion discussing
enhancement,”
crime
doubling the maxi
application Ring
the retroactive
v. Ari-
potential
mum
sentence.
Id. Apprendi
majority
negates
zona. The
opinion
twelve-year
sentenced to a
term
against
presumption
applica-
retroactive
imprisonment,
two
more than the
years
in Teague
tion of a new rule articulated
v.
ten-year maximum for the firearms of
Lane,
474, 120
Id. at
fense.
S.Ct. 2348.
1060,
Bill were determining Apprendi subject are 2. violations to homicide which defendants would be sub- Maj.
harmless error analysis.
Op. at
ject
capital punishment.
the decisions
(Ariz.2003),] and
Apprendi
Sanchez-Cer-
analysis
P.3d
Ariz.
Ariz.
(Ariz.2003)
federal
rest
]
Maj. Op.
us.”
law,
do not bind
they
state
Analysis
Ring
Circuits’
C. Our Sister
However,
Supreme
Court
at 1106-07.
Courts
The Tenth and Eleventh Circuit
ruling that
Ring,
otherwise
suggested
reject-
have both addressed
Appeal
of the
construction
Arizona court’s
“the
Ring.
application of
ed retroactive
authoritative[.]”
law is
own
State’s
(citation omit
matter-of-factly
court
The Tenth Circuit
ted).
addressing
Supreme Court
an exten-
Ring
simply
that
“is
concluded
Ari
portrayal majority’s
Apprendi
“the
to the death
con-
Apprendi
sion of
Id.
sentencing law.”
Simi
zona’s
con-
Accordingly, this court’s recent
text.
addressing the
are
in this case we
larly,
...
announced a
Apprendi
clusion
cap
of Arizona’s
majority’s portrayal
Ring
procedure
[the]
criminal
forecloses
rule of
law,
the Arizona Su
sentencing
with
ital
Ring announced a substan-
argument that
carrying the
construction
preme Court’s
Mullin, 297
rule.” Cannon v.
F.3d
tive
id.
authority. See
same
(10th Cir.2002) (citation omitted).
989, 994
Towery, the Arizona
Likewise,
in Sanchez-
ruling
our recent
sentencing
Arizona’s
examined
pronounced a
Apprendi
Cervantes
decision.
light
scheme
282 F.3d at
procedure,
new rule of criminal
Court,
presum-
with its
majority’s
conclusion
forecloses
grasp of Arizona’s statu-
ably authoritative
a new substantive
pronounced
scheme,
Ring:
tory
declared
colleague recently
As our
observed
rule.
*43
underlying
the
conduct
“changed neither
discussing
holding
our
in Sanchez-
when
prove
the state must
to establish
Cervantes:
crime warrants death
that a defendant’s
it
proof;
state’s burden of
affect-
arrived at
this conclusion even
nor the
We
necessary to estab-
neither the facts
ed
though every application of the constitu-
aggravating
Arizona’s
factors nor
lish
Apprendi
rule
re-
[announced
]
tional
to
the fac-
state’s burden
establish
distinguishing between the stat-
quires
a reasonable doubt.
In-
beyond
tors
‘sentencing
ute’s
factors’
‘elements’
stead, Ring
altered who decides
[ ]
certain,
though
even
it’s almost
as a
any aggravating circumstances
whether
simple
probabili-
matter of mathematical
exist,
fact-finding
thereby altering the
not have
ty, that some defendants would
sentencing
procedures
used
statutory
ele-
been convicted had
hearings.”
to a
of
ments been submitted
(emphasis
original).
The decision of identity of the decision- fects Towery is consistent with the proof.... maker and the burden of explana- United States Court’s Montalvo, to the exception Teague retroactivity 331 F.3d pro- States v. United (9th Cir.2003) (Kozinski, J., Maj. Op. concur- hibition. at 1108. ring). I disagree majority’s with the conclusion case, Eleventh Circuit Turner
The
is a
Ring
procedural
new
rule that
(11th Cir.2003), con-
Crosby,
characterization of A. Serious Enhancement the Proceed- as an Ring’s “status extension rule ings’Accuracy *35, Id. at 1284. The court Apprendi.” Apprendi that “because concluded majority opinion makes its case for rule, axiomatically follows procedural accuracy attacking objectivity procedural is also a rule.” Id. judges capital sentencing in the context. *34,1284. Maj. Op. majority opinion at 1109-16. The following problematic lists the five circum- remarkably analysis in Turner is judge-based capital stances with sentenc- concurring Judge similar Kozinski’s ing: Montalvo, discussing our hold- opinion F.3d in Sanchez-Cervantes. See 331
ing 1. Presentation of inadmissible evi- at 1061. judges; dence to pre- More truncated and informal court
The Eleventh Circuit reasoned: argument; sentation of evidence and Apprendi proce- constitutes Just of “the Lack conscience the com- rule it dictates what fact- dural because munity”; finding procedure employed, must be procedural be- judge constitutes a rule 4. Acclimation of capi- fact-finding proce- sentencing
cause it dictates what process; tal must in a employed dure sen- pressure judges facing 5. Political tencing hearing. Ring changed neither election. underlying conduct the must state Id. prove establish defendant’s crime *44 matters, As with most other there is death the state’s warrants nor burden story, reflecting another to the side the only ... de- proof. altered who juries problems fact that have their own any aggravating cides whether circum- sentencing the context. thus, and, exist altered the stances Jury Capital Project, The funded the fact-finding procedure. Foundation, empiri- National is an Science Turner, WL 339 F.3d at cal of “death study penalty decision mak- (internal quotation *34 marks ing by jurors.” Eisenberg Theodore and omitted) (emphasis in the and citations Wells, Deadly Martin T. Juror Confusion: original). Cases, Capital Instructions in 79 Cornell Ring’s Procedural Rule Not Fit
II Does (1993). jurors, L.Rev. Any Exception Teague’s
Within states, trials in eleven were Retroactivity Prohibition. The that: study interviewed. revealed many jurors personal hold- majority opinion’s The alternative reached a decision proce- concerning punishment that even if before the sen- ing announced rule, trial, tencing stage hearing fits within an of the before dural nonetheless struggle ... that will last arguments concerning life faces evidence
the ...” Id. at punishment, throughout and before the deliberations appropriate the making instructions judge’s Moreover, most of sentencing decision. Project’s analysis of the data fo- One pun- indicated a stand on jurors who component of cused on the South Carolina stage of the trial guilt at the ishment “yielded the study. South Carolina “absolutely convinced” of they said were set of data of all the states most extensive and punishment early their stands encompassing] ... inter- participating throughout them course adhered jurors fifty-three cases views with 187 the trial. and- tried in South Carolina between 1988 Bowers, Sandys, and Marla J. William Garvey, P. The Emotional Stephen 1997.” Steiner, Impar Foreclosed Benjamin D. Economy Capital Sentencing, 75 N.Y.U. Sentencing: Jurors’ Pre tiality Capital (2000). This subset of L.Rev. 28-29 Experience, dispositions, Guilt —Trial pity per- and sympathy data reveals Making, Decision 88 Cor and Premature capital sentencing deliberations de- vade 1476, 1477 nell L.Rev. contrary, instructions to the id. at spite study many also disclosed that “ear- The race factor in determin- and is dominant jurors” presumed over- ly pro-death at 45. ing who is sentenced to death. Id. justified whelming guilt imposition proof problems established empirically Id. at 1497. More penalty. the death jury sentencing deliberations calls with jurors were of the view than half of question majority’s into facile conclu- only acceptable pun- that “death was capital sentencing sion that transfer of re- murder, repeat premedi- for ... ishment the accu- will enhance sponsibility murder.” Id. multiple tated murder racy process. study data in the has been at 1504. The majority opinion bemoans the fact supporting a conclusion that: described as presented that inadmissible evidence is presence aggravation of structural However, judges. Maj. Op. at 1110-11. or death and the nature of life deci- most states the same inadmissible evi- promote will continue still to sion itself majority, dence that most concerns the premature punishment making, decision statements, impact victim is available to a full discouraging open thus evalua- jurors. Garvey, See The Emotional Econ- constitutionally tion of sanctioned sen- this, Beyond omy Sentencing, tencing Capital considerations. 75 NY.U. punishment data show that concerns majority opinion L.Rev. at 48. The also of guilt also invade befoul the work presentation laments the informal of evi- making. frankly decision Jurors admit Maj. 1110. In judge. Op. dence to a they punishment consider decid- contrast, Capital Jury Project reveals guilt, despite admonitions to do ing presentation that more formal of evidence *45 so. capital juries. is not of to To assistance Id. at 1541. contrary, jurors by the are confused the aggravating mitigating and standards of in
Any penalty indecision dea!th delibera- Wells, proof, Eisenberg Deadly and Con- likely tions is more to be resolved favor 10; fusion, at are un- Cornell L.Rev. Wells, Eisenberg Deadly of death. clear as to whether and when the law Confusion, 79 L.Rev. at The Cornell 13. death, Bower, Sandys mandates and Stein- “a study suggests that defendant on trial er, Impartiality, Foreclosed 83 Cornell punishment stage for his life at the has one 1523; minds grave.... juror favoring up foot in the The L.Rev. at and make their any presented is the the just before evidence as to law review article is that —a bald Id. at penalty. statement, 1477. appropriate with no accompanying empirical evidence. majority jury The views opinion deter- as an indispensable
mination of the cited, The law other review article Fred jury’s the manifestation of the role as Burnside, B. Dying to Get Elected: A community.” Maj. Op. of “conscience the Override, the Challenge Jury to 1999 Wis. However, empirical sug- at 1113. evidence 1017, 1039-44, L.Rev. is a discussion of that the of the gests “conscience communi- judicial jury overrides of determinations is not the ty” necessarily adjudica- fairest Alabama, Florida, Indiana, and Delaware. for a capital tion defendant. Not do The attempt article does not even to com- defendants, jurors prejudge they en- also pare relative the rate of death sentences the gage penalty negotiations during imposed juries by to opposed judges. Bowers, Steiner, guilt phase. Sandys and event, any comprehensive the Capital Impartiality, Foreclosed 83 Cornell L.Rev. Jury Project informs judges us that are 1477, 1527. at Their decisions are tainted facing pressure. not alone in Jurors are anger sympathy, pity, considerations of subjected pressure to similar when delib- Garvey, disgust. The Emotional erating cases. negotiate Jurors Economy Sentencing, Capital 75 N.Y.U. of votes in to the stigma order of ] “avoid! at 34. death L.Rev. And their determina- hung Bowers, being jury.” Sandys, and tions are influenced race. Id. at 45. Steiner, Impartiality, Foreclosed 83 Cor- majority The opinion notes that nell final analysis, L.Rev. 1527. to judge’s capital sentencing acclimation question still out is on the may negatively influence the as- judge’s whether decision in Ring enhances the Maj. sessment of the sentence. atOp. accuracy capital sentencing process. everyone 1113-14. But judges’ views That fact defeats majority opinion’s negative. experience as a See Hon. premise Ring that fits within first Jackson, R. Jury Randall Missouri’s Sen- prong Teague exception applicable tencing Legislature Law: A Relic the analysis to new rules. procedural Its fares Rest, Lay Should J. Mo. B. no prong better when the second is consid- (opining unjust sentencing disparity ered. judges reduced greatly when rather than juries impose sentencing).2 Ring’s B. Alteration Understand- Our Finally, majority pres- refers to the Bedrock ing Principles Procedural facing on judges sures election impose majority opinion its conclusion rests Maj. penalty. Op. the death is not sub- the observations majority law cites to a review article ject error and is of analysis, to harmless its who support “judges statement application. Op. at widespread Maj. likely face election are far more impose penalty.” Stephen Bright death See B. discussed, As Keenan, previously Patrick Judges J. and the npt held, if re- implied, Deciding Death: Politics Between quirements subject are to harmless error Rights Next Bill and the Election Cases, n. analysis. S.Ct. at 2443 7. Cou- Capital 75 B.U. L.Rev. See (1995). However, pled statement is the limited made with that circumstance *46 sentences, Although unique applies principle this addresses 2. article termine all capital sentencing. statutory whereby juries equal de- with force to Missouri scheme Ring contemplated in district court’s denial of Summerlin’s habe- of when application petition. alone are re- as context. Juries proper capital sentences in deciding for sponsible punishment states with of the 38 Bryant, Capital Pun- Holly Shaver
laws. Penalty: Death Trends in
ishment/The Court, on Trends in the State Report for State Courts
National Center Ring’s is limited
Accordingly, application KONG, Plaintiff-Appellant, David states, cry in 9 far cases description majority’s ambitious of “affect[ing] every the structure of Ring as SCULLY, capac Thomas in his official Maj. at 1119. Op. trial.” ity as director of Center Medi ' as addressing Ring’s exemption Services; care and Medicaid Teague rule from the bar on procedural Tommy Thompson, Capac in his official the Eleventh Cir- application, retroactive ity Secretary as of the United States “not suffi- Ring described as cuit court Department Health and Human of ciently fundamental” to constitute “wa- Services, Defendants-Appellees, procedure. rule criminal tershed” Turner, F.3d WL Christ, Scientist, The First Church of (citations omitted). at *36. In- Defendant-Intervenor-Appellee. stead, the court characterized a rule on the Sixth creating “based No. 02-15057. right jury trial and
Amendment to a Appeals, United States Court documented, much less perceived, on a Ninth Circuit. accuracy enhance or fairness need to fact-finding in capital sentencing Argued April Submitted 2003. *37, Id. at context.” Sept. Filed majority’s contrary holding or, a new rule Ring created substantive alternative, a rule of crimi- watershed an procedure precipitates
nal unwarranted split.
circuit
III. Conclusion analyzed aas new substantive
Whether procedure, as a new rule of
rule or any does not fall within
decision exceptions Teague. set forth in compati-
majority opinion’s analysis is not precedent,
ble with our rulings, or law of our sister cir-
prior light Ring’s adherence to
cuits.
precepts Apprendi, I would declare the
nonretroactivity Ring, and affirm the