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Greenway v. Ryan

United States Court of Appeals, Ninth Circuit

August 8, 2017

Richard Harley Greenway, Petitioner-Appellant,
v.
Charles L. Ryan, Director of Arizona Department of Corrections, Respondent-Appellee.

          Argued and Submitted June 21, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Raner C. Collins, Chief Judge, Presiding D.C. No. 4:98-cv-00025-RCC

          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.

          Laura 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.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The 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.

         After 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.

          OPINION

          PER CURIAM.

         We 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).

         Included 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 banc)).

         While 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.

         We 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.

         The 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 ...


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