McKinney v. Arizona

McKINNEY v. ARIZONA certiorari to the supreme court of arizona No. 18–1109. Argued December 11, 2019—Decided February 25, 2020 An Arizona jury convicted petitioner James McKinney of two counts of first-degree murder. The trial judge found aggravating circumstances for both murders, weighed the aggravating and mitigating circum -stances, and sentenced McKinney to death. Nearly 20 years later, the Ninth Circuit held on habeas review that the Arizona courts violated Eddings v. Oklahoma, 455 U. S. 104, by failing to properly consider as relevant mitigating evidence McKinney's posttraumatic stress disorder. McKinney's case then returned to the Arizona Supreme Court. McKin-ney argued that he was entitled to a jury resentencing, but the Arizona Supreme Court itself reweighed the aggravating and mitigating circumstances, as permitted by Clemons v. Mississippi, 494 U. S. 738, and upheld both death sentences. Held: A Clemons reweighing is a permissible remedy for an Eddings error, and when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. McKinney's argument that a jury must resentence him does not square with Clemons, where the Court held that a reweighing of the aggravating and mitigating evidence may be conducted by an appellate court. 494 U. S., at 741. Because Clemons involved an improperly considered aggravating circumstance, McKinney maintains that it is inapposite here, where the case involves an improperly ignored mitigating circumstance. Clemons, however, did not depend on any unique effect of aggravators as distinct from mitigators. For purposes of appellate reweighing, there is no meaningful difference between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. McKinney also argues that Clemons is no longer good law in the wake of Ring v. Arizona, 536 U. S. 584, and Hurst v. Florida, 577 U. S. 92, where the Court held that a jury must find the aggravating circumstance that makes the defendant death eligible. But that does not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. See Apprendi v. New Jersey, 530 U. S. 466, 481. McKinney notes that the Arizona trial court, not the jury, made the initial aggravating circumstance finding that made him eligible for the death penalty. But McKinney's case became final on direct review long before Ring and Hurst, which do not apply

retroactively on collateral review, see Schriro v. Summerlin, 542 U. S. 348, 358, and the Arizona Supreme Court's 2018 decision reweighing the aggravators and mitigators did not constitute a reopening of direct review. Pp. 142–147. 245 Ariz. 225, 426 P. 3d 1204, affirmed. Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Ginsburg , J., filed a dissenting opinion, in which Breyer, Sotomayor , and Kagan, JJ., joined, post, p. 147.

Neal Kumar Katyal argued the cause for petitioner. With him on the briefs were Katherine B. Wellington, Shar-mila Roy, Amy L. Marshak, Joshua A. Geltzer, and Mary B. McCord.

Oramel H. Skinner, Solicitor General of Arizona, argued the cause for respondent. With him on the brief were Mark Brnovich, Attorney General of Arizona, Kate B. Sawyer, Assistant Solicitor General, and Katherine H. Jessen, Assistant Attorney General, Joseph A. Kanefeld, Chief Deputy and Chief of Staff, Brunn W. Roysden III, Lacey Stover Gard, Ginger Jarvis, and Laura Chiasson.*

Over a 4-week span in early 1991, James McKinney and his half brother, Charles Hedlund, burglarized five residences in the Phoenix, Arizona, area. During one of the burglaries, McKinney and Hedlund beat and repeatedly stabbed Christine Mertens. McKinney then shot Mertens in the back of the head, fatally wounding her. In another burglary, Mc- Kinney and Hedlund killed Jim McClain by shooting him in the back of the head with a sawed-off rife.

In 1992, an Arizona jury convicted McKinney of two counts of first-degree murder. Under this Court's precedents, a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found. See Tui-laepa v. California, 512 U. S. 967 (1994); Zant v. Stephens, 462 U. S. 862 (1983); Gregg v. Georgia, 428 U. S. 153 (1976). McKinney's trial judge found aggravating circumstances for both murders. For the Mertens murder, the judge found that McKinney committed the murder for pecuniary gain and that McKinney killed Mertens in an especially heinous, cruel, or depraved manner. For the McClain murder, the judge found that McKinney committed the murder for pecuniary gain and that McKinney had been convicted of another offense with a potential sentence of life imprisonment or death (the Mertens murder).

The trial judge then weighed the aggravating and mitigat-ing circumstances and sentenced McKinney to death for both murders. In 1996, the Arizona Supreme Court affirmed Mc- Kinney's death sentences.

gia, Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of Indiana, Derek Schmidt of Kansas, Jeff Landry of Louisiana, Douglas J. Peterson of Ne-braska, Dave Yost of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, and Herbert H. Slatery III of Tennessee; for Arizona Prosecuting Attorneys' Advisory Council by Sheila Sullivan Polk; for Arizona Voice for Crime Victims Inc. by Colleen Clase; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton.

McKinney's case then returned to the Arizona Supreme Court. In that court, McKinney argued that he was entitled to resentencing by a jury. By contrast, the State asked that the Arizona Supreme Court itself conduct a reweighing of the aggravating and mitigating circumstances, as permitted by Clemons v. Mississippi, 494 U. S. 738 (1990). The Arizona Supreme Court agreed with the State. The court itself reviewed the evidence in the record and reweighed the relevant aggravating and mitigating circumstances, including McKinney's PTSD. The court upheld both death sentences. 245 Ariz. 225, 426 P. 3d 1204 (2018).

McKinney petitioned for certiorari in this Court. Because of the importance of the case to capital sentencing in Arizona, we granted certiorari. 587 U. S. 1050 (2019).

The issue in this case is narrow. McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances. Rather, according to McKin-ney, a jury must resentence him.

McKinney's argument does not square with this Court's decision in Clemons. In Clemons, a Mississippi jury sentenced the defendant to death based in part on two aggravating circumstances. After the Mississippi Supreme Court determined that one of the aggravators was unconstitutionally vague, the defendant argued that he was entitled to re-sentencing before a jury so that the jury could properly weigh the permissible aggravating and mitigating evidence.

McKinney contends that Clemons does not apply here. He raises two basic arguments.

First, McKinney maintains that Clemons involved an improperly considered aggravating circumstance, whereas his case involves what the Ninth Circuit said was an improperly ignored mitigating circumstance. But the Court's analysis in Clemons hinged on its assessment of appellate courts' ability to weigh aggravating and mitigating evidence, not on any unique effect of aggravators as distinct from mitigators. After noting that the “primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime,” the Court explained that nothing “inherent in the process of appellate reweighing is inconsistent” with that objective. Id., at 748. Indeed, the Court explicitly rejected the argument that “appellate courts are unable to fully consider and give effect to the mitigating evidence presented by defendants at the sentencing phase in a capital case.” Ibid. And the Court concluded that a state appellate court may uphold the death sentence after a “reweighing of the aggravating and mitigating evidence.” Id., at 741.

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigat-

Second, the Court decided Clemons back in 1990, and Mc- Kinney argues that Clemons is no longer good law in the wake of this Court's decisions in Ring v. Arizona, 536 U. S. 584 (2002), and Hurst v. Florida, 577 U. S. 92 (2016). According to McKinney, appellate courts may no longer reweigh aggravating and mitigating circumstances in deter-mining whether to uphold a death sentence. McKinney is incorrect.

In Ring , this Court held that capital defendants “are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment”— in particular, the finding of an aggravating circumstance. 536 U. S., at 589. In Hurst, the Court applied Ring and decided that Florida's capital sentencing scheme impermissibly allowed “a sentencing judge to find an aggravating circumstance, independent of a jury's factfnding, that is necessary for imposition of the death penalty.” 577 U. S., at 102.

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. In Apprendi v. New Jersey, 530 U. S. 466 (2000), this Court carefully avoided any suggestion that “it is impermissible for judges to exercise discretion—taking into consideration vari-

In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

In addition to those two arguments about Clemons, Mc- Kinney advances an additional argument based on Ring and Hurst. This argument focuses not on the weighing of aggravators and mitigators, but rather on the Arizona trial court's initial 1993 finding of the aggravating circumstances that made McKinney eligible for the death penalty. McKin-ney points out that a jury did not find the aggravating circumstances, as is now required by Ring and Hurst.

The hurdle is that McKinney's case became final on direct review in 1996, long before Ring and Hurst. Ring and Hurst do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U. S. 348, 358 (2004). Because this case comes to us on state collateral review, Ring and Hurst do not apply.

McKinney says, however, that this case has a twist. He asserts that the Arizona Supreme Court's 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that

But the premise of that argument is wrong because the Arizona Supreme Court's reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding. The court cited its prior decision in State v. Styers, 227 Ariz. 186, 254 P. 3d 1132 (2011), which concluded that Arizona could conduct such an independent review in a collateral proceeding. See also Ariz. Rev. Stat. Ann. § 13–755 (2010); State v. Hedlund, 245 Ariz. 467, 470–471, 431 P. 3d 181, 184–185 (2018). Under these circumstances, we may not second-guess the Arizona Supreme Court's characterization of state law. See Mulla-ney v. Wilbur , 421 U. S. 684, 691 (1975); see also Jimenez v. Quarterman, 555 U. S. 113, 120, n. 4 (2009); Styers v. Ryan, 811 F. 3d 292, 297, n. 5 (CA9 2015). As a matter of state law, the reweighing proceeding in McKinney's case occurred on collateral review.

McKinney responds that the state label of collateral review cannot control the finality question; that a Clemons reweighing is a sentencing proceeding; and that a Clemons reweighing therefore may occur only on direct review (or on reopening of direct review). But Clemons itself, over a vigorous dissent, stated that an appellate reweighing is not a sentencing proceeding that must be conducted by a jury. See 494 U. S., at 741, 744–755. The appellate reweighing is akin to harmless-error review. Courts routinely conduct harmless-error review in collateral proceedings. Cf., e. g., Brecht v. Abrahamson, 507 U. S. 619, 638 (1993). There is no good reason—and McKinney supplies none—why state courts may not likewise conduct a Clemons reweighing on collateral review. As relevant here, when an Eddings error is found on collateral review, a state court may conduct a

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This Court's precedents establish that state appellate courts may conduct a Clemons reweighing of aggravating and mitigating circumstances, and may do so in collateral proceedings as appropriate and provided under state law. We affirm the judgment of the Arizona Supreme Court.

It is so ordered.

Justice Ginsburg , with whom Justice Breyer , Justice Sotomayor, and Justice Kagan join, dissenting.

Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993. At that time, Arizona assigned capital sentencing to trial judges. To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigat-ing circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. § 13–703(E) (1993). In 2002, in Ring v. Arizona, 536 U. S. 584 (2002), this Court held Arizona's capital sentencing regime unconstitutional. The “aggravating factors” that render a defendant eligible for capital punishment in Arizona, the Court reasoned, “operate as `the functional equivalent of an element of a greater offense.' ” Id., at 609 (quoting Apprendi v. New Jersey, 530 U. S. 466, 494, n. 19 (2000)). “[T]he Sixth Amendment [therefore] requires that [such aggravating factors] be found by a jury.”

The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review. Griffith v. Kentucky , 479 U. S. 314, 322–323 (1987). Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions. Teague v. Lane , 489 U. S. 288, 310 (1989) (plurality opinion).2 This Court has already held that Ring does not fall within those exceptions. See Schriro v. Summerlin, 542 U. S. 348, 358 (2004). Thus, the pivotal question: Is Mc- Kinney's case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply?3 I would rank the Arizona Supreme Court's proceeding now before this Court for review as direct in character. I would therefore hold McKinney's death sentences unconstitutional under Ring , and reverse the judgment of the Arizona Supreme Court.

McKinney then sought a writ of habeas corpus in federal court. In 2015, the en banc United States Court of Appeals for the Ninth Circuit concluded that the Arizona Supreme Court, when it independently reviewed McKinney's sentences in 1996, committed constitutional error. Specifically, the state court, in violation of Eddings v. Oklahoma, 455 U. S. 104, 113–114 (1982), 6 refused to consider as mitigating

The State thereupon asked the Arizona Supreme Court to “conduct a new independent review of McKinney's death sentenc[e]” “to cure any error in [the prior] independent review.” App. 389. Granting the State's motion in 2018, Arizona's highest court again did as the independent-review statute instructs. See supra, at 149. Specifically, the court first determined that “no reasonable doubt” existed “as to the aggravating circumstances found by the trial court.” 245 Ariz. 225, 227, 426 P. 3d 1204, 1206 (2018). It then noted that “McKinney [had] proved several mitigating circumstances,” including “PTSD . . . caused by the abuse and trauma he experienced as a child.” Ibid. “Given the aggravating circumstances,” however, the court “conclude[d] that McKinney's mitigating evidence [wa]s not sufficiently substantial to warrant leniency.” Ibid. It therefore “af-firm[ed] McKinney's death sentences” for a second time. Id., at 229, 426 P. 3d, at 1208.

A

Beyond doubt, the Arizona Supreme Court engaged in direct review in 1996. A defendant's first opportunity to appeal his conviction and sentence is the archetype of direct

The Arizona Supreme Court's 2018 proceeding was essentially a replay of the initial direct review proceeding. The State's request for “a new independent review,” App. 389 (emphasis added), asked the Arizona Supreme Court to resume and redo direct review, this time in accord with Ed-dings. See Webster's Third New International Dictionary 1522 (2002) (“new”: “beginning or appearing as the recurrence, resumption, or repetition of a previous act or thing”). The Arizona Supreme Court proceeded accordingly. That court retained for its “new independent review” the docket number earlier assigned to its initial review, App. 1, 6–11, and docket entries show that the original 1996 appeal was “Reinstated,” id., at 1. In its 2018 review, the Arizona Supreme Court “examine[d] `the trial court's findings of aggravation and mitigation and the propriety of the death sentence' ” afresh, treating that court's 1996 decision as though it never issued. 245 Ariz., at 227, 426 P. 3d, at 1206 (quoting § 13–755). See also supra, at 150.

Renewal of direct review cannot sensibly be characterized as anything other than direct review. The Arizona Supreme Court's 2018 proceeding retread ground traversed in 1996; the two proceedings differed only in that the court's 2018 review was free of Eddings error. If, as the State does not contest, the court's 1996 review ranked as review direct in character, so, too, did its 2018 do-over. 7

B

The State urges that the Arizona Supreme Court's decision in State v. Styers, 227 Ariz. 186, 254 P. 3d 1132 (2011), compels a different classification of that court's 2018 proceeding. In Styers, as here, the Arizona Supreme Court conducted a new independent review to correct Eddings error in its previous decision affirming the defendant's death sentence. 227 Ariz., at 187, 254 P. 3d, at 1133. The Arizona Supreme Court regarded its second look in Styers as a collateral review for retroactivity purposes, id., at 187–188, and n. 1, 254 P. 3d, at 1133–1134, and n. 1, and followed suit in its 2018 renewed examination in this case, 245 Ariz., at 226–227, 426 P. 3d, at 1205–1206. This Court, the State maintains, is bound by that state-law classification. Brief for Respondent 22–25. The State's argument should be unavailing. Whether the Constitution requires the application of law now in force is a question of federal constitutional law, not an issue subject to state governance. See Griffith, 479 U. S., at 322–323.

C

The Court does not today hold that the classification a state supreme court assigns to a proceeding is inevitably dispositive of a retroactivity question of the kind this case presents. See ante, at 147, n. Instead, the Court looks first to the State's classification of a proceeding, and then asks whether the character of the proceeding warrants the classification. See ante , at 146 (review was “akin to harmless-error review,” which may be conducted on collateral review).

Accepting “collateral” as a ft description of the 2018 Arizona Supreme Court review proceeding, the Court relies on Clemons v. Mississippi, a decision holding that appellate courts can reweigh aggravating and mitigating factors as a form of “harmless-error analysis” when the factfnder “relied in part on an invalid aggravating circumstance.” 494 U. S.

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Dissenting in Styers, then-Justice Hurwitz explained:

“[I]ndependent review is the paradigm of direct review—we determine, de novo, whether the trial court, on the facts before it, properly sentenced the defendant to death. Thus, what the State sought in this case— and what the Court has granted—is a new direct review of the death sentence, designed to obviate a constitutional error occurring in the original appeal.” 227 Ariz., at 191, 254 P. 3d, at 1137 (internal quotation marks omitted).

Exactly right. Because Ring controls post-2002 direct review proceedings, I would apply that precedent here and reverse the judgment of the Arizona Supreme Court.

The next page is purposely numbered 901. The numbers between 153 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports.