SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1109
_________________
JAMES ERIN McKINNEY, PETITIONER
v.
ARIZONA
on writ of certiorari to the supreme court of
arizona
[February 25, 2020]
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 mitigating 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.”
Ibid.; see
Hurst v.
Florida, 577
U. S. ___, ___ (2016) (slip op., at 1) (“The Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose
a sentence of death.”). Here in dispute, does
Ring apply to
McKinney’s case?[
1] If it does,
then McKinney’s death sentences—imposed based on aggravating
factors found by a judge, not a jury—are unlawful.
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 McKinney’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.
I
Upon the imposition of a death sentence in
Arizona, a defendant’s appeal bypasses the intermediate appellate
court and moves directly from the trial court to the Arizona
Supreme Court. See Ariz. Rev. Stat. Ann. §13–4031 (2010).[
4] The statute governing such an
appeal, §13–755, instructs: “The supreme court shall review all
death sentences. On review, the supreme court shall independently
review the trial court’s findings of aggravation and mitigation and
the propriety of the death sentence.” §13–755(A).[
5] Independent review under §13–755 entails
“review[ing] the entire record” without deference to the
factfinder, to determine,
de novo, “whether a capital
sentence is not only legally correct, but also appropriate.”
State v.
Roseberry, 237 Ariz. 507, 509–510, 353 P.3d
847, 849–850 (2015). In 1996, the Arizona Supreme Court reviewed
McKinney’s sentences under the foregoing scheme and affirmed the
trial court’s dispositions.
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 evidence the
posttraumatic stress disorder (PTSD) McKinney suffered as a result
of his horrific childhood. See
McKinney v.
Ryan, 813
F.3d 798, 804. Reversing the District Court’s judgment denying the
writ of habeas corpus, the Court of Appeals remanded the case “with
instructions to grant the writ with respect to McKinney’s sentence
unless the state, within a reasonable period, either corrects the
constitutional error in his death sentence or vacates the sentence
and imposes a lesser sentence consistent with law.”
Id., at
827. This Court denied the State’s petition for certiorari.
Ryan v.
McKinney, 580 U. S. ___ (2016).
The State thereupon asked the Arizona Supreme
Court to “conduct a new independent review of McKinney’s death
sentence” “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 3. 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 “affirm[ed] McKinney’s death sentences” for a second
time.
Id., at 229, 426 P. 3d, at 1208.
II
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
review. See
Brecht v.
Abrahamson,
507 U.S.
619, 633 (1993) (“Direct review is the principal avenue for
challenging a conviction.”).
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
Eddings. 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 4.
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 7, 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 6–7 (review was “akin to
harmless-error review,” which may be conducted on collateral
review).
Accepting “collateral” as a fit 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 factfinder “relied in
part on an invalid aggravating circumstance.”
494 U.S.
738, 744, 752 (1990). Here, however,
the Ninth Circuit
engaged in harmless-error review when that court evaluated
McKinney’s federal habeas petition—and found the Arizona Supreme
Court’s 1996
Eddings error harmful.
McKinney, 813
F. 3d, at 822–824. The State accordingly asked the Arizona
Supreme Court “to
cure [that] error” by conducting a new
independent review proceeding. App. 389 (emphasis added). In
determining
de novo in 2018 whether McKinney’s death
sentences were “not only legally correct, but also appropriate,”
Roseberry, 237 Ariz., at 509, 353 P. 3d, at 849, the
Arizona Supreme Court was not conducting garden-variety
harmless-error review of a lower court decision; it was rerunning
direct review to correct its own prior harmful error.
* * *
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.