Charles Hedlund v. Charles Ryan , 815 F.3d 1233 ( 2016 )

BEA, Circuit Judge,

concurring:

I write separately to express my own views as to Part VI of the majority opinion, which holds that the Arizona Supreme Court applied a “causal nexus” test to Hedlund’s nonstatutory mitigating evidence, in. violation of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Our about-face on this issue, see Hedlund v. Ryan, 750 F.3d 793, 813-20 (9th Cir.2014) (finding no Eddings error), is solely the result of our court’s recent decision in McKinney v. Ryan, No. 09-99018, 813 F.3d 798, 2015 WL 9466506 (9th Cir. Dec. 29, 2015) (en banc). For the reasons discussed at length in my McKinney dissent, id. at 826-50, *25-*45 (Bea, J., dissenting), I think our analysis of the Eddings issue was wrong and conflicts with Supreme Court precedent requiring us to “presum[e] that state courts know and follow the law,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). I will not here rehash that dissent.

It is unfortunate that McKinney’s errors have determined this case, because it is more difficult to find a true Eddings violation here than it was in McKinney. As detailed below, Judge Sheldon, the trial judge who sentenced both Hedlund and McKinney to death, was crystal clear that he understood Eddings’s mandate and considered all of Hedlund’s mitigating evidence before imposing the death penalty.¹ Judge Sheldon plainly did not commit Ed-dings error.

Judge Wardlaw disputes my interpretation of Judge Sheldon’s statements during Hedlund’s sentencing hearing. Partial concurrence at 1265-67. To do so, she plucks a snippet from the sentencing hearing that, in her view, shows that Judge Sheldon applied an unconstitutional causal-nexus test to exclude certain mitigating evidence from his consideration. Id. at 67-68. However, this “smoking gun” evidence of an Eddings violation demonstrates only that Judge Sheldon considered whether there was a causal connection between Hedlund’s proffered mitigating evidence and his crimes when considering the existence of a statutory mitigating factor, Ariz.Rev.Stat. § 13-751(G)(1),² which was perfectly permissible. See McKinney, 813 F.3d at 810, 2105 WL 9466506, at *9 (“When applied solely in the context of statutory mitigation under [Ariz.Rev.Stat. § 13-751(G)(1) ], the causal nexus test does not violate Ed-dings.’’). To dispel any doubts, I recount here Judge Sheldon’s statements during Hedlund’s sentencing hearing:

• Judge Sheldon first sentenced Hedlund for several non-capital crimes before turning to the question whether Hedlund was eligible for the death penalty for the homicide of Jim McClain. Sentencing Hr’g Tr. 2-5. Judge Sheldon concluded that the McClain homicide made Hed-lund eligible for the death penalty under the Supreme Court decisions Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Sentencing Hr’g Tr. 5-12.

• Judge Sheldon then “proceeded] to a discussion of the aggravating or mitigating circumstances in this case.” Id. at 12. He started by setting out the (correct) parameters of his inquiry:

[T]he punishment must be tailored to a defendant’s personal responsibility and moral guilt. The sentence imposed should reflect a reasoned, moral response to the defendant’s background, character, and the crime. Although the requirements of channeled or guided discretion enunciated in Gregg v. Georgia, [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976),] which sought consistent, rational application of the death penalty, may appear in a superficial analysis to be in conflict with an expansive reading of Eddings v. Oklahoma [,] Lockett [v.] Ohio and other cases which require individualized sentences and consideration of all mitigating evidence offered, these cases when read together simply require the sentencing judge, as the conscience of the community, to weigh carefully, fairly, objectively, all of the evidence offered at sentencing, recognizing that not everyone who commits murder should be put to death. Id. at 12-13.

• Judge Sheldon then found that Arizona had established two statutory aggravating factors, Ariz.Rev.Stat. § 13-751(F)(2), (5), before he “move[d] to a consideration of the mitigating factors.” Sentencing Hr’g Tr. 13-16. He found that the facts and circumstances of this case ruled out three statutory mitigating factors, Ariz.Rev.Stat. § 13 — 751(G)(3)— (5). Sentencing Hr’g Tr. 16-17.

• Judge Sheldon next considered Hed-lund’s mitigating evidence of mental retardation, alcohol and drug use, and child abuse. He considered this evidence in the context of two statutory mitigating statutory factors, Ariz.Rev.Stat. § 13-751(G)(1) (“The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.”) and (G)(2) (“The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.”), and also as nonstatutory mitigating evidence:

• Based on the information provided to Judge Sheldon, he found, as a matter of fact, that Hedlund was “an intelligent, reflective individual, certainly not retarded.” Sentencing Hr’g Tr. 17-18.

• Judge Sheldon discredited the evidence that Hedlund’s conduct during the McClain homicide was affected by alcohol use. Id. at 18-20. As such, Judge Sheldon concluded that Hed-lund’s alcohol use did not establish the (G)(1) statutory mitigating factor, but he considered Hedlund’s alcohol use as nonstatutory mitigating evidence: “Although the Court has considered evidence of alcohol consumption as evidence of mitigation, there is little to demonstrate that it in any [way] substantially affected the defendant’s ability to understand the lawfulness of his conduct.... The Court has concluded that although evidence of alcohol use not being a mitigating circumstance under (G)(1), [it] nevertheless should be considered as mitigating evidence.” Id. at 19-20.

• Judge Sheldon then found that evidence and testimony supporting Hed-lund’s “psychological symptoms” were entitled to “little weight” and did not establish the (G)(1) or (G)(2) statutory mitigating factor. Id. at 20-21.

• With respect to evidence of child abuse, Judge Sheldon found: “[T]here was no persuasive testimony presented that leads to the conclusion that the abuse by — that the defendant suffered as a child resulted in him being under unusual or substantial duress at the time of the murders. I’m specifically finding that there is no substantial evidence to support a finding under (G)(1).” Id. at 21.³

• Judge Sheldon wrapped up his analysis, reiterating that he considered all of the mitigating evidence, for purposes of the statutory and nonstatutory mitigating factors:

The defendant’s personality traits, his past drug and alcohol abuse, and child abuse have been considered by the Court. If not demonstrating the existence of the mitigating factors under (G)(1), they have nevertheless been given consideration by the Court. I have concluded ... that the evidence regarding Mr. Hedlund’s childhood can be considered as truthful by the Court, that there were significant aspects of his childhood which were clearly abusive.

Certainly the memories of children may ... become exaggerated with age. But there certainly were specific incidences that were testified to by the witnesses in this case that clearly have made an impression upon them which they will probably not forget for the rest of their lives. This has made an impact on me. I have considered it. I think it is the Court’s obligation to consider it, whether or not it complies with the requirements in (G)(1). Id. at 23.

• Judge Sheldon also found, as a fact, that “none of those mitigating factors considered separately or cumulatively indicates to the Court that these factors affected the defendant’s ability to control his physical behavior at the time of the offense or to appreciate the wrongfulness of his conduct.” Id. at 24. Judge Wardlaw reads this to mean that Judge Sheldon excluded all of those mitigating factors because of the lack of a causal nexus. See partial concurrence at 1265-67. This reading stretches Judge Sheldon’s words far beyond what they say. Judge Sheldon’s statement merely parroted the text of the (G)(1) statutory mitigating factor, see Ariz.Rev.Stat. § 13-751(G)(1) (“The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.”), and is best understood to reiterate that the (G)(1) statutory mitigating factor was not established. It does not conflict with Judge Sheldon’s other statements making clear that he had considered all of Hedlund’s mitigating evidence.

• Judge Sheldon also specifically considered various non-nexus mitigating evidence, including Hedlund’s “intellectual ability to engage in rehabilitation,” Sentencing Hr’g Tr. 22, “[Hedlund’s] character as a young person,” id. at 25, and “the impact that the sentence in this case will have on [Hedlund’s] sister and [his] family,” id.

• In the end, however, Judge Sheldon concluded: “[H]aving reviewed all of this evidence, [Hedlund’s] past character, I’ve concluded that none of the mitigation evidence considered by the Court in this case, either individually or cumulatively, are sufficiently substantial to call for leniency. And I am ordering that [Hed-lund] be sentenced to death for the death of Mr. McClain.” Id. at 26.

Reading the entire transcript of the sentencing hearing can lead to only one conclusion: Judge Sheldon understood Ed-dings ’s mandate and considered all of Hedlund’s proffered mitigating evidence, but ultimately found the evidence insufficient to warrant leniency. Id. The single statement on which Judge Wardlaw relies shows only that Judge Sheldon constitutionally applied a causal-nexus test in the context of an Arizona statutory mitigating factor. That statement does not show that Judge Sheldon excluded mitigating evidence from his consideration, and Judge Sheldon’s other statements repeatedly demonstrate otherwise.

In any event, McKinney teaches us that what Judge Sheldon said is of little consequence, because the Arizona Supreme Court, on independent review of Hedlund’s and McKinney’s death sentences, independently violated Eddings. See McKinney, 813 F.3d at 818-22, 2015 WL 9466506, at *17-*20. Indeed, after McKinney, we must assume that the Arizona Supreme Court misunderstood Eddings and ignored Judge Sheldon’s (quite correct) discussion of what Eddings requires — even though the Arizona Supreme Court apparently accepted some of Judge Sheldon’s other findings. See id. at 821-22, *20; id. at 847 & n. 40, *42 & n. 40 (Bea, J., dissenting); see also Op. at 1259-61.⁴

In light of McKinney I agree that we must find that the Arizona Supreme Court also committed Eddings error as to Hed-lund. The Arizona Supreme Court reviewed both Hedlund’s and McKinney’s death sentences in the same opinion, State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996), and it would make little sense for us to hold that the court applied Eddings properly in one part of the opinion and improperly in another part. My agreement on this point should not be construed as a concession that McKinney was correctly decided. It was not. But, I recognize that, as a three-judge panel, we are bound to follow McKinney until it is overruled by the Supreme Court or a future en banc panel of our court. See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). As a result, I concur in the majority opinion in full.

1 . Although Hedlund and McKinney were tried together (albeit with separate juries) and sentenced by the same trial judge, their sentencing hearings took place on separate days a week apart.

2 . Arizona's statute enumerating death-penalty aggravating and mitigating factors was previously codified at Ariz.Rev.Stat. § 13-703. I reference the statute's current location, Ariz. Rev.Stat. § 13-751.

3 . This may be a misstatement, as the "unusual or substantial duress” factor is (G)(2), not. (G)(1). See Ariz.Rev.Stat. § 13-75l(G)(l)-(2).

4 . If I were convinced that the Arizona Supreme Court applied an unconstitutional causal-nexus test to exclude Hedlund's proffered mitigating evidence, I would have no trouble reversing the district court's decision denying Hedlund's petition. With respect to Hedlund, but not McKinney, the Arizona Supreme Court struck one of the aggravating factors found by Judge Sheldon. See State v. McKinney, 185 Ariz. 567, 917 P.2d 1214, 1228-31 (1996) (en banc). If the Arizona Supreme Court did violate Eddings, its independent reweighing of the remaining aggravating factor against the mitigating evidence was likely flawed. See Styers v. Schriro, 547 F.3d 1026, 1034-36 (9th Cir.2008) (per curiam); see also Clemons v. Mississippi, 494 U.S. 738, 748-49, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).