McKinney v. Arizona

THE FINALITY OF McKINNEY’S CASE, AND THE RETROACTIVE APPLICATION OF CURRENT CRIMINAL PROCEDURE LAW

Petitioner McKinney asserts that current constitutional, criminal procedure law should apply to his resentencing because when his case was not yet final when it appeared before the Arizona Supreme Court for that court’s second independent review of his death sentence. See Brief for Petitioner, James McKinney at 19. In support of this assertion, McKinney first points out that the Supremacy Clause of the U.S. Constitution requires courts to apply current law in all non-final cases. Id. McKinney explains that a conviction is final where the U.S. Supreme Court either affirms the defendant’s conviction based on the facts of the case or denies the defendant’s petition for certiorari. Id. at 22. McKinney admits that his case became final in 1996 when he failed to seek certiorari from the Supreme Court, but McKinney contends that not all cases remain final. Id. Here, McKinney asserts, his case did not remain final because, after the Ninth Circuit remanded his habeas petition, the Arizona Supreme Court granted independent review of his sentence, thus reopening his case for direct review and rendering it nonfinal. Id. To support his conclusion, McKinney relies on Jimenez v. Quarterman, where the Supreme Court concluded that an independent review used to correct an improper direct review in a defendant’s case made the defendant’s case non-final. Id. at 22–23. McKinney maintains that the Arizona Supreme Court’s review here was a similar “do-over” of the original direct review. Id. at 25. He supports this assertion by pointing to the similarities between the Arizona Supreme Court’s original direct review and its independent review conducted after the Ninth Circuit’s remand: in both cases, the Arizona Supreme Court (1) ordered the parties to brief the same question, and (2) conducted the same type of review by weighing mitigating and aggravating circumstances. Id. at 25–26. Additionally, McKinney emphasizes that sentencing is a fundamental component of a criminal case and that criminal cases are not final without the imposition of a sentence. Id. at 26.

McKinney argues that because the Arizona Supreme Court directly reviewed his sentence, properly weighing mitigating and aggravating circumstances for the first time, current criminal procedure law—and not criminal procedure law of 1996—must govern McKinney’s sentence. Id. at 28. McKinney explains that rules governing criminal trials retroactively apply to all nonfinal cases, and contends, therefore, that the Arizona Supreme Court erred when it did not apply current law to his resentencing. Id. at 29. He continues that under the Arizona law that applied at McKinney’s original sentencing, a sole judge acted as the sentencer in a capital case; however, the Supreme Court in Ring v. Arizona held that the Sixth Amendment requires a jury, not a judge, to weigh all aggravating and mitigating circumstances before sentencing an individual to death. Id. Thus, McKinney claims, the Arizona Supreme Court violated his constitutional right to jury sentencing because, after the Ninth Circuit identified the constitutional sentencing error, a jury never considered the mitigating evidence regarding McKinney’s PTSD. Id. at 31–32. McKinney contends that the Arizona Supreme Court, following its decision to reopen McKinney’s case, should have remanded the case to a trial court for a jury to resentence him. Id. at 33.

Respondent, the State of Arizona (the “State”), counters McKinney’s finality arguments by asserting that McKinney’s conviction was finalized in 1996 and never reopened. Brief for Respondent, State of Arizona at 17. Therefore, the State asserts, current constitutional law should not apply in McKinney’s case. Id. In support of this assertion, the State contends that the Arizona courts applied a state-specific appellate process to independently review McKinney’s sentence and that the Arizona Supreme Court did not consider this independent review part of its direct review process. Id. The State argues that the Arizona Supreme Court’s determination that independent review does not reopen a case cannot be undone by federal courts since the issue is strictly one of state law, and, thus, is left to the State to decide. Id. at 17–18. Additionally, the State maintains that a conditional habeas order, like the one the Ninth Circuit issued on remand, cannot reopen a state case and render the case nonfinal—instead, this order is simply an exercise of the federal court’s discretion to give state courts time to fix constitutional violations. Id. at 19. Further, the State claims that under Arizona law, independent review can arise as either a collateral or direct proceeding and that the constitutional issue here arises as a collateral proceeding that does not upset the case’s finality because it is separate from the original case. Id. at 21–22. The State also contradicts McKinney’s reliance on Jimenez by pointing out that the Supreme Court in Jimenez simply accepted the state court’s interpretation of what constituted a direct appeal. Id. at 28–29. Thus, the State claims, the Supreme Court here should defer to the Arizona Supreme Court’s determination that its review of McKinney’s death sentence was collateral. Id. at 29. Moreover, the State responds to McKinney’s argument that sentencing is a key component of direct review by pointing out that collateral review, which does not reopen a defendant’s case, often involves vacating or modifying a defendant’s sentence. Id. at 28.

The State further responds to McKinney’s argument that new criminal procedure rules should retroactively apply to his resentencing by again asserting that the Arizona Supreme Court never reopened McKinney’s case, and therefore, the bar on applying new law in cases that are final should be employed. Id. at 17. As part of its analysis, the State uses as an example federal courts’ review of federal convictions in habeas proceedings under 28 U.S.C. § 2255. Id. at 28. In those proceedings, and in similar habeas proceedings collaterally reviewing state convictions, the State emphasizes, federal courts are allowed to “vacate, set aside, or correct” sentences without triggering the application of new criminal procedure law. Id. Further, the State contends that the only error in McKinney’s case came from the Arizona Supreme Court itself, and that none of McKinney’s cited case law supports the conclusion that an appellate court correcting an error made on appeal must follow current criminal procedure law. Id. at 19 n.3. On remand, the State continues, the Arizona District Court had the option of instructing the Arizona state courts to resentence McKinney, and thereby apply new criminal procedure law, but federal court elected not to. Id. at 18. Consequently, the State contends, because current criminal procedure law did not apply, McKinney’s constitutional rights do not require a resentencing by a jury at the trial level. See id. at 29.

WHETHER RESENTENCING AND CORRECTING ERRORS AT THE TRIAL LEVEL IS NECESSARY

McKinney asserts that only a trial-level resentencing can correct the constitutional error that the state trial court and Arizona Supreme Court committed in not considering McKinney’s mitigation evidence. Brief for Petitioner at 33. McKinney concedes that the trial-level sentencing judge accepted his PTSD diagnosis, but, McKinney contends, that judge did not weigh McKinney’s PTSD in sentencing because he concluded that this diagnosis was not legally relevant. Id. at 35. McKinney notes that, on appeal, the Arizona Supreme Court violated the Constitution in the exact same manner. Id. When the Ninth Circuit identified this sentencing error, McKinney contends, the case should have been immediately remanded to the trial court for a trial-level sentencer to consider McKinney’s PTSD in the sentencing analysis. Id. at 35–36. McKinney claims that even under Arizona’s laws at the time of his original sentencing, trial judges possessed sentencing authority in capital cases, and the Arizona Supreme Court made independent reviews of sentences only as an appellate court, not as a trial court. Id. at 35. Furthermore, McKinney maintains that the Supreme Court’s precedent makes clear that Eddings errors, such as the one committed here, always require resentencing at the trial level because an appellate record does not present the full picture of all mitigating and aggravating circumstances. Id. at 39–41. Here, for example, McKinney points to certain “intangibles” that the Arizona Supreme Court could not assess from simply reading a sentencing transcript, including emotional testimony from McKinney’s sister and aunt testifying about McKinney’s abusive upbringing. Id. at 41. McKinney further argues that his case should have been remanded to the trial level because both the trial court and Arizona Supreme Court on direct review applied a causal nexus test, thus limiting the mitigating evidence presented in the trial record to evidence actually connected to the crime. Id. at 43. Applying this rule, McKinney maintains, infected the trial evidence by preventing testimony regarding McKinney’s PTSD that could have effectively secured McKinney life in prison instead of the death penalty. Id. at 44.

The State counters by positing that no Eddings error existed in this case in the first place, but, if one did exist, it would not require automatic resentencing at the trial level, since the error arose during appellate proceedings, not during the trial. See Brief for Respondent at 29–30. The State first argues that Supreme Court precedent suggests that appellate courts can correct Eddings errors, and that a bright-line rule that all Eddings violations require trial-level resentencing would be inconsistent with this precedent. Id. at 30–31. Moreover, the State asserts, in a case like McKinney’s, which was originally tried over two decades ago, a full trial-level resentencing based on old facts and poor memories could create another unreliable result. Id. at 31. Furthermore, the State claims that the Ninth Circuit’s conditional habeas relief was based on the Arizona Supreme Court’s error—not the trial court’s error—in applying the causal nexus test and not considering McKinney’s PTSD diagnosis in violation of McKinney’s constitutional rights. Id. at 31–32. The State emphasizes that habeas relief is meant “to place defendants in the position they would have been in absent” the constitutional error, and that position here is not the trial court, but the Arizona Supreme Court. Id. at 37. Moreover, because the error occurred at the appellate level, the State argues, correcting this error at the trial level is unnecessary, especially considering that the trial court allowed McKinney to fully present his mitigating evidence, including testimony regarding McKinney’s PTSD diagnosis. Id. at 32, 34. Additionally, in the alternative, the State requests that the Supreme Court correct the Ninth Circuit’s finding of a constitutional error because the Arizona Supreme Court applied the causal nexus test only when determining the weight of the mitigating evidence and not the admissibility of the evidence. Id. at 40–41. Afterall, the State contends, the Eighth Amendment leaves the sentencer free to assign whatever weight to mitigating evidence during sentencing, as long as the sentencer considers the mitigating evidence. Id. at 41.