and Submitted June 21, 2017 San Francisco, California
from the United States District Court for the District of
Arizona Raner C. Collins, Chief Judge, Presiding D.C. No.
Therese M. Day (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Phoenix, Arizona; for Petitioner-Appellant.
P. Chiasson (argued), Assistant Attorney General; Jeffrey A.
Zick and Lacey Stover Gard, Chief Counsel; Mark Brnovich,
Attorney General; Office of the Attorney General, Tucson,
Arizona; for Respondent-Appellee.
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Carlos
T. Bea, Circuit Judges.
Corpus / Death Penalty
panel affirmed the district court in an Arizona state
prisoner's appeal arising from his habeas corpus petition
challenging his 1989 conviction and death sentence for the
killing of a mother and daughter.
considering supplemental briefing regarding the impact on
this case of McKinney v. Ryan, 813 F.3d 798 (9th
Cir. 2015) (en banc), the panel held that neither the Arizona
Supreme Court nor the trial court applied an impermissible
causal-nexus test to exclude mitigating evidence.
continue to consider issues raised in Richard Greenway's
first habeas petition challenging his 1989 conviction and
death sentence for the brutal execution-style killing of a
mother and daughter in 1988. In our first opinion, we
affirmed the denial of relief on many claims, but remanded
others. See generally Greenway v. Schriro, 653 F.3d
790 (9th Cir. 2011).
among the claims we denied was the contention that the state
trial court and the state supreme court, by failing to
consider all mitigating circumstances, had violated the
United States Supreme Court's teachings in Lockett v.
Ohio, 438 U.S. 586 (1978) and Eddings v.
Oklahoma, 455 U.S. 104 (1982). Greenway argued that the
Arizona Supreme Court limited consideration of mitigating
factors to those causally linked to the commission of the
crime. Relying on our court's prior decision in Schad
v. Ryan, 606 F.3d 1022 (9th Cir. 2010), we rejected the
claim on the ground that the Arizona Supreme Court's
opinion contained no indication that such a test had been
applied. Greenway, 653 F.3d at 807-08 (citing
State v. Greenway, 170 Ariz. 155, 168-71 (1991) (in
Greenway's other claims remained under consideration in
the federal courts, our court, in an en banc decision,
overruled Schad and any presumption it may have
suggested that the Arizona Supreme Court had followed the
United States Supreme Court's decisions in
Lockett and Eddings and had not applied a
causal-nexus test. McKinney v. Ryan, 813 F.3d 798,
818-19 (9th Cir. 2015) (en banc). Rather, McKinney
held that no "clear indication" of the application
of the causal-nexus test was required because the Arizona
courts had "consistently, " during the period
between 1989 and 2005, applied the wrong test. Id.
at 815-26 ("The 'clear indication' rule . . . is
an inappropriate and unnecessary gloss on the deference
already required under [28 U.S.C.] § 2254(d)."). In
other words, if there is to be a presumption, it is that the
Arizona Supreme Court violated the dictates of
Lockett and Eddings during that period.
stayed proceedings in this appeal pending
McKinney's becoming final. When the Supreme
Court denied certiorari, Ryan v. McKinney, 137 S.Ct.
39 (2016), we asked for supplemental briefing on
McKinney's impact on this case.
parties appear to be in fundamental agreement that
McKinney requires us to reexamine the state trial
and appellate courts' decisions to determine whether or
not all mitigating factors were considered. The parties
disagree, of course, on what the state courts did in
petitioner's case, with ...