John Sansing v. Charles Ryan ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN EDWARD SANSING, No. 13-99001
Petitioner-Appellant,
D.C. No.
v. 2:11-cv-01035-
SRB
CHARLES L. RYAN, Director, Arizona
Department of Corrections; ERNEST
TRUJILLO, Warden, Arizona State ORDER AND
Prison - Eyman Complex, AMENDED
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted January 22, 2019
San Francisco, California
Filed May 17, 2021
Amended July 29, 2022
Before: Marsha S. Berzon, Consuelo M. Callahan, and
Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Watford;
Dissent by Judge Berzon
2 SANSING V. RYAN
SUMMARY *
Habeas Corpus / Death Penalty
The panel filed an order (1) stating that the opinion filed
May 17, 2021, is amended by a concurrently filed opinion,
and that Judge Berzon’s dissent is amended by a
concurrently filed dissent; (2) denying a petition for panel
rehearing; and (3) denying on behalf of the court a petition
for rehearing en banc, in a case in which the district court
denied John Edward Sansing’s federal petition for a writ of
habeas corpus, which is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).
Sansing pleaded guilty to first-degree murder and, in
1999, was sentenced to death by the State of Arizona.
Sansing’s Claim 1 was predicated on the alleged denial
of his Sixth Amendment right to trial by jury. At the time of
his trial, Arizona law mandated that the trial judge alone
determine whether a sentence of death should be imposed
following a conviction for first-degree murder. The United
States Supreme Court declared that sentencing scheme
unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002).
On remand for further consideration in light of Ring, the
Arizona Supreme Court ruled that the denial of Sansing’s
right to a jury trial during the penalty phase was harmless
beyond a reasonable doubt.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANSING V. RYAN 3
To establish prejudice, a federal habeas petitioner must,
under Brecht v. Abrahamson, 507 U.S. 619 (1993),
demonstrate that a constitutional error resulted in “actual
prejudice”—that is, a “substantial and injurious effect or
influence” on the outcome.
In the amended opinion, the panel noted that the United
States Supreme Court clarified in Brown v. Davenport, 142
S. Ct. 1510 (2022), that satisfying Brecht is only a necessary,
not a sufficient condition to relief; a federal habeas petitioner
must meet the requirements of AEDPA as well. So when, as
here, the state court has determined on direct appeal that an
error was harmless beyond a reasonable doubt—the standard
required for review of non-structural constitutional errors
under Chapman v. California, 386 U.S. 18 (1967)—a
petitioner must demonstrate that the court applied Chapman
in an objectively unreasonable manner.
The panel began by deciding whether the Arizona
Supreme Court’s application of Chapman was objectively
unreasonable under AEDPA. Rejecting Sansing’s
contention that the Arizona Supreme Court’s determination
was “contrary to” or an “unreasonable application of” clearly
established federal law, the panel concluded that fairminded
jurists applying the governing beyond-a-reasonable-doubt
standard could conclude that the absence of a jury trial did
not affect the Arizona Supreme Court’s conclusions (a) that
any reasonable jury would have found that the murder was
committed in both an “especially cruel” and an “especially
heinous” manner (Ariz. Rev. Stat. § 13-703(F)(6) (1999)), or
(b) that no rational jury would have found the existence of
any statutory mitigating circumstances or that Sansing’s
non-statutory mitigating circumstances were sufficiently
substantial to call for leniency. Because Sansing failed to
satisfy AEDPA, the panel did not need to consider whether
4 SANSING V. RYAN
the absence of a jury trial resulted in actual prejudice under
Brecht.
Sansing’s Claim 2 alleged that his trial counsel rendered
ineffective assistance in presenting his mitigation defense
during the penalty phase. The state post-conviction review
(PCR) court held that Sansing failed to establish either
deficient performance or prejudice under Strickland v.
Washington, 466 U.S. 668 (1984). The panel concluded that,
as to most of the challenged aspects of counsel’s
representation, Sansing did not demonstrate that the PCR
court’s resolution of Strickland’s deficient-performance
prong was objectively unreasonable; and that as to the
remaining aspects of the representation, the PCR court
reasonably determined that Sansing did not demonstrate
prejudice.
In Claim 8, Sansing alleged that his waiver of the
privilege against self-incrimination was not knowing and
voluntary because he was unaware that his admission, during
the plea colloquy, that the victim was conscious when he
raped her could be used to prove cruelty under § 13-
703(F)(6). Affirming the denial of relief as to this claim, the
panel observed that the United States Supreme Court has not
yet held that the trial court must affirmatively discuss during
the plea colloquy the potential impact of a defendant’s
factual admissions may have on capital sentencing
proceedings.
In Claim 4, Sansing asserted an ineffective-assistance-
of-counsel claim that used the same factual predicate as
Claim 8. The panel concluded that even accepting that
counsel rendered ineffective assistance, a fairminded jurist
could conclude that Sansing failed to show a reasonable
probability he would have received a different sentence.
SANSING V. RYAN 5
In Claim 7, Sansing alleged that the Arizona courts
violated the Eighth Amendment by applying an
impermissible “causal nexus” test when assessing his non-
statutory mitigating circumstances. See Eddings v.
Oklahoma, 455 U.S. 104 (1982), and McKinney v. Ryan, 813
F.3d 798 (9th Cir. 2015) (en banc). The panel held that the
sentencing court did not strip the mitigating circumstances
of all weight by applying an unconstitutional causal-nexus
test. The panel wrote that it is possible that the Arizona
Supreme Court applied a rule contrary to Eddings, but did
not need to resolve that issue because even if the Arizona
Supreme Court erred in this regard, Sansing cannot show
actual prejudice under Brecht.
Dissenting, Judge Berzon would grant the petition as to
Claim 1, Ring error prejudice, and so would not reach the
other challenges to the death sentence discussed in the
majority opinion. She wrote that a court granting habeas
relief must apply both the AEDPA/Chapman test as well as
the standard set forth in Brecht; she therefore applied both
tests. She wrote that the Arizona Supreme Court’s
application of the “harmless beyond a reasonable doubt”
standard from Chapman was contrary to federal law, as
clearly established by Neder v. United States, 527 U.S. 1(1999), so this court owes no deference to its harmlessness
determination. She would therefore review under Brecht
whether the deprivation of the right to a jury determination
had a “substantial and injurious effect” on Sansing’s
sentence, which was satisfied because Sansing presented
sufficient evidence to allow a jury to conclude that, because
of his crack cocaine use, his capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was “significantly impaired.” Ariz.
Rev. Stat. § 13-703(G)(1). She concurred in the majority’s
6 SANSING V. RYAN
analysis of Claims 4 and 8, relating to the factual basis
offered when pleading guilty.
COUNSEL
Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant.
Lacy Stover Gard (argued), Chief Counsel; John Pressley
Todd, Special Assistant Attorney General; Mark Brnovich,
Attorney General; Office of the Attorney General, Tucson,
Arizona; for Respondents-Appellees.
SANSING V. RYAN 7
ORDER
The opinion filed May 17, 2021, and appearing at
997 F.3d 1018, is amended by the opinion filed concurrently
with this order. Judge Berzon’s dissent is also amended by
the dissent filed concurrently with this order.
With these amendments, the panel unanimously votes to
deny the petition for panel rehearing. Judge Callahan and
Judge Watford vote to deny the petition for rehearing en
banc, and Judge Berzon so recommends. The full court has
been advised of the petition for rehearing en banc, and no
judge requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35. The petition for panel rehearing
and rehearing en banc, filed June 27, 2022, is DENIED. No
further petitions for panel rehearing or rehearing en banc will
be entertained.
OPINION
WATFORD, Circuit Judge:
In 1999, the State of Arizona sentenced John Sansing to
death for the murder of Trudy Calabrese. This appeal arises
from the district court’s denial of Sansing’s federal petition
for a writ of habeas corpus, which is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). The district court granted a certificate of
appealability as to five claims, and we later issued a
certificate of appealability as to a sixth. We agree with the
district court that Sansing has not shown an entitlement to
relief on any of his claims.
8 SANSING V. RYAN
I. Factual and Procedural Background
Our summary of the facts is drawn from the Arizona
Supreme Court’s first opinion on direct appeal. State v.
Sansing, 26 P.3d 1118, 1122–23 (Ariz. 2001) (Sansing I).
Sansing’s wife, Kara Sansing, provided much of this
narrative when she testified during the penalty phase of
Sansing’s trial. (Like the parties, we refer to Sansing’s
family members by their first names to avoid confusion.)
On February 24, 1998, Sansing and Kara were on the
fourth consecutive day of heavy crack cocaine consumption.
Sansing called Kara throughout the day to discuss the need
to obtain money to buy more drugs. He also informed her
that he had purchased crack cocaine, smoked a portion of it,
and was saving the rest for her. Kara returned home from
work around 3:20 p.m., and the two immediately smoked the
leftover crack cocaine.
That afternoon, Sansing contacted a local church to
request delivery of a box of food for his family. With his
four young children present, Sansing told Kara that he
planned to rob whomever the church sent to deliver the food.
Shortly after 4:00 p.m., Trudy Calabrese parked her
truck in front of the Sansing home. She entered the house
and delivered two boxes of food, chatting with Kara in the
kitchen while Sansing signed paperwork verifying the
delivery. As Ms. Calabrese turned to leave, Sansing grabbed
her from behind and threw her to the floor. With the
assistance of Kara, Sansing bound Ms. Calabrese’s wrists
and legs with electrical cords.
According to Kara, Ms. Calabrese fought “a great deal”
and begged Sansing not to hurt her. She pleaded for the
children to call the police and prayed for God’s help until
SANSING V. RYAN 9
Sansing gagged her with a sock. Sansing struck Ms.
Calabrese twice in the head with a wooden club with enough
force to knock her unconscious. He then retrieved her keys
and drove her truck to a nearby parking lot. When Sansing
returned, Ms. Calabrese was conscious, at least according to
Sansing’s and Kara’s later statements. (Sansing now
disputes this fact, pointing to the testimony of a medical
examiner who expressed doubt that Ms. Calabrese regained
consciousness given the severity of her head injuries.)
Sansing dragged Ms. Calabrese upstairs to his bedroom,
where he raped her. Her arms and legs were still bound.
Kara overheard Sansing and Ms. Calabrese speaking to each
other. (Sansing disputes that Ms. Calabrese spoke, pointing
to the use of the gag and again to her head injuries.) After
raping Ms. Calabrese, Sansing stabbed her three times in the
abdomen with a knife from the kitchen. Kara described
Sansing as “grinding” the knife inside of Ms. Calabrese, and
the medical examiner saw signs that the knife had been
twisted in her abdomen. Ms. Calabrese died from these
wounds, likely several minutes after the stabbing.
Sansing took Ms. Calabrese’s jewelry and traded it for
crack cocaine.
That evening, a pastor of the church called the Sansing
home to check on Ms. Calabrese’s whereabouts. Sansing
gave a false home address and told the pastor that the
delivery had never arrived. Sansing later dragged Ms.
Calabrese’s body to his backyard and attempted to hide it
behind a shed under a piece of old carpeting. He washed the
club he had used to strike Ms. Calabrese and hid other
evidence of the crime.
By the next day, a search party had located
Ms. Calabrese’s truck; inside was a note with the Sansings’
10 SANSING V. RYAN
true home address. The police visited the home and found
Ms. Calabrese’s body in the backyard. Her head was
wrapped in a plastic bag that was bound to her neck by
ligatures, and the police discovered that she had been
blindfolded. At the time of the search, Sansing had already
gone to work. He went straight from work to his sister
Patsy’s house, where he confessed to having killed Ms.
Calabrese. Patsy called their father, who reported the
murder and Sansing’s location to the police. Sansing
peaceably surrendered to the officers who arrived at Patsy’s
house.
The State of Arizona charged Sansing with first-degree
murder, kidnapping, armed robbery, and sexual assault. The
State also provided notice of its intent to seek the death
penalty. Two deputy public defenders, Emmet Ronan and
Sylvina Cotto, were appointed to represent Sansing.
Professing a desire not to put either his family or the
Calabrese family through a trial, Sansing pleaded guilty in
September 1998 to all charges in the indictment.
Sansing’s trial therefore proceeded directly to the
penalty phase, at which the trial judge considered the
aggravating and mitigating circumstances associated with
the murder. Following a three-day hearing, the trial judge
sentenced Sansing to death in a detailed, 17-page special
verdict. The Arizona Supreme Court affirmed Sansing’s
death sentence on direct appeal. Sansing I, 26 P.3d at 1132;
State v. Sansing, 77 P.3d 30, 39 (Ariz. 2003) (Sansing II).
Sansing sought post-conviction review (PCR) in state
court. The PCR court summarily dismissed four claims on
the merits and a fifth claim as procedurally defaulted. The
court rejected Sansing’s remaining claim, which alleged
ineffective assistance of trial counsel, in a reasoned opinion
following a four-day evidentiary hearing. The Arizona
SANSING V. RYAN 11
Supreme Court denied Sansing’s petition for review without
reaching the merits of his claims.
In 2011, Sansing filed a 29-claim petition for a writ of
habeas corpus in federal court. The district court denied his
petition and granted a certificate of appealability as to five
of Sansing’s claims. Sansing filed a timely notice of appeal
from the district court’s judgment. As noted above, we
issued a certificate of appealability as to one additional
claim.
II. Claim 1
We address first the district court’s rejection of Claim 1,
which is predicated on the alleged denial of Sansing’s Sixth
Amendment right to trial by jury. At the time of Sansing’s
trial, Arizona law mandated that the trial judge alone
determine whether a sentence of death should be imposed
following a conviction for first-degree murder. The United
States Supreme Court declared that sentencing scheme
unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002).
Soon thereafter, the Court granted Sansing’s pending
petition for a writ of certiorari, vacated the judgment in
Sansing I, and remanded the case for further consideration
in light of Ring. Sansing v. Arizona, 536 U.S. 954 (2002).
On remand, the Arizona Supreme Court ruled that the denial
of Sansing’s right to a jury trial during the penalty phase was
harmless beyond a reasonable doubt. Sansing II, 77 P.3d at36–39. In Claim 1, Sansing alleges that the Arizona
Supreme Court’s harmless-error determination was
“contrary to” or “an unreasonable application of” clearly
established federal law. 28 U.S.C. § 2254(d)(1). We begin
by providing additional background relevant to the analysis
of this claim before turning to the merits.
12 SANSING V. RYAN
A
After Sansing pleaded guilty to first-degree murder,
Arizona law required the sentencing court to decide whether
he should be sentenced to death or life in prison. Ariz. Rev.
Stat. § 13-703(B) (1999). (Unless otherwise noted, we cite
the 1999 version of the Arizona Revised Statutes.) To make
that determination, the sentencing court engaged in a three-
step analysis.
First, the sentencing court determined whether the State
had proved beyond a reasonable doubt any of the ten
statutory aggravating factors that render a defendant eligible
for the death penalty. § 13-703(F). In this case, the
sentencing court found two such factors had been proved:
that Sansing “committed the offense in an especially
heinous, cruel or depraved manner,” § 13-703(F)(6); and
that he “committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of
pecuniary value,” § 13-703(F)(5).
Second, the sentencing court determined whether
Sansing had proved by a preponderance of the evidence any
of the five statutory mitigating circumstances. § 13-703(G).
As relevant here, Sansing argued that his “capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired” by his use of crack cocaine. § 13-703(G)(1). The
sentencing court declined to find the (G)(1) mitigating
circumstance, given the evidence that Sansing had planned
the robbery and attempted to avoid detection “before, during
and after the murder.”
The sentencing court also assessed the evidence
supporting non-statutory mitigating circumstances—that is,
any aspect of Sansing’s life or any circumstance of the
SANSING V. RYAN 13
offense “relevant in determining whether to impose a
sentence less than death.” § 13-703(G). Although Sansing
failed to prove the (G)(1) mitigating circumstance, the court
considered his drug-induced impairment to be a non-
statutory mitigating circumstance. The court also found that
Sansing had “accepted responsibility for his actions and
[was] genuinely remorseful,” and “that he had a difficult
childhood and family background.” The court gave only
minimal weight to Sansing’s lack of education and his
family’s love and support.
Third, and finally, the sentencing court weighed the
aggravating factors against the mitigating circumstances to
determine whether the mitigating circumstances were
“sufficiently substantial to call for leniency.” § 13-703(E).
The court considered the mitigating circumstances not
sufficiently substantial to outweigh the two aggravating
factors it had found. The court therefore imposed a sentence
of death.
The Arizona Supreme Court affirmed Sansing’s death
sentence after independently reviewing “the trial court’s
findings of aggravation and mitigation and the propriety of
the death sentence.” Ariz. Rev. Stat. § 13-703.01(A) (2001).
The court upheld the sentencing court’s finding that the
murder had been committed in an especially cruel manner,
which was sufficient on its own to sustain the (F)(6)
aggravating factor, and chose not to reach whether the
murder was also heinous or depraved. Sansing I, 26 P.3d at1127–29. The court struck the (F)(5) aggravating factor
because the facts did not “clearly indicate a connection
between a pecuniary motive and the killing itself.” Id. at
1124–27. The court agreed that Sansing had not established
the level of impairment required for the (G)(1) mitigating
circumstance. Id. at 1130–31. Independently reweighing
14 SANSING V. RYAN
the evidence, the Arizona Supreme Court concluded that a
sentence of death was appropriate “[g]iven the strength of
the [remaining] aggravating factor in this case and the
minimal value of the mitigating evidence.” Id. at 1131.
As noted above, a year after Sansing I, the United States
Supreme Court ruled Arizona’s judge-based capital-
sentencing scheme unconstitutional in Ring v. Arizona.
“Because Arizona’s enumerated aggravating factors operate
as ‘the functional equivalent of an element of a greater
offense,’” the Court explained, “the Sixth Amendment
requires that they be found by a jury.” Ring, 536 U.S. at 609(quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19
(2000)).
To address the fallout from Ring, the Arizona Supreme
Court consolidated all pending direct appeals in capital
cases, including Sansing’s. State v. Ring, 65 P.3d 915, 925
(Ariz. 2003) (Ring III). The court held that a Ring error is
not structural and thus can be subject to harmless-error
review. Id. at 936; see Mitchell v. Esparza, 540 U.S. 12, 17
(2003) (per curiam) (noting that the Supreme Court left this
issue open in Ring). Under the legal standard announced by
the Arizona Supreme Court, a Ring error is deemed harmless
if (1) the evidence supporting an aggravating factor is so
overwhelming that “no reasonable jury would have failed to
find the factor established beyond a reasonable doubt,” and
(2) “no reasonable jury could find that the mitigation
evidence adduced during the penalty phase is sufficiently
substantial to call for leniency.” Ring III, 65 P.3d at 944,
946 (internal quotation marks omitted). In other words, the
court stated, “[u]nless we conclude beyond a reasonable
doubt that a jury would impose a death sentence, we must
remand the case for resentencing.” Id. at 944 (citing Neder
v. United States, 527 U.S. 1, 19 (1999)).
SANSING V. RYAN 15
In Sansing II, the Arizona Supreme Court applied this
harmless-error standard to Sansing’s death sentence. As to
the (F)(6) aggravating factor, which applies if the defendant
committed the murder in an especially heinous, cruel, or
depraved manner, the court held that the error under Ring
was harmless beyond a reasonable doubt. The court based
that holding on two independent grounds. First, given the
facts to which Sansing had admitted when pleading guilty
and to which he had stipulated during the sentencing phase,
see Sansing II, 77 P.3d at 33–34 n.3, the court concluded that
“any reasonable jury would have found that Sansing
murdered [Ms. Calabrese] in an especially cruel manner.”
Id. at 35. Second, “[g]iven the overwhelming and
uncontroverted evidence,” the court determined that “any
reasonable jury would have concluded that Sansing inflicted
gratuitous violence upon [Ms. Calabrese], who was rendered
helpless” during the crime. Id. at 36. As a result, “[n]o
reasonable jury could have failed to find that [Ms.
Calabrese’s] murder was especially heinous.” Id.Shifting focus to Sansing’s mitigating evidence, the
Arizona Supreme Court held, beyond a reasonable doubt,
that “[n]o reasonable jury would have concluded that
Sansing met his burden to establish” either of the statutory
mitigating circumstances he sought to prove (age and
significant impairment due to drug use). Id. at 37–38. As to
Sansing’s non-statutory mitigating circumstances, the court
concluded that “no reasonable jury could have given more
than minimal weight” to most of the mitigating evidence
Sansing relied on, although the court assumed that a
reasonable jury “would have accorded some weight to
Sansing’s family’s love and support and to the fact that he
accepted responsibility for his crime.” Id. at 39. But,
considering the “brutality” of Ms. Calabrese’s murder and
the relatively weak mitigating evidence offered by Sansing,
16 SANSING V. RYAN
the court determined beyond a reasonable doubt that “any
reasonable jury would have concluded that the mitigating
evidence was not sufficiently substantial to call for
leniency.” Id. The Arizona Supreme Court therefore
affirmed Sansing’s death sentence.
B
We turn now to the merits of Claim 1. The parties agree
that Sansing was not afforded the jury-trial right announced
in Ring, so the only issue is whether this error was harmless.
At the outset, the parties dispute the scope of the rule
established in Ring. Sansing contends that, like the Arizona
Supreme Court, we should consider whether any rational
jury, after weighing the aggravating factors against the
mitigating circumstances, would have returned a sentence of
death. The State responds that Ring established only that one
or more aggravating factors must be found by the jury—
nothing more. According to the State, we need ask only
whether it is clear, beyond a reasonable doubt, that
overwhelming and uncontroverted evidence established the
(F)(6) aggravating factor, such that no rational jury would
have failed to find it.
The district court agreed with the State, reasoning that
“[t]o the extent the Arizona Supreme Court chose to include
review of mitigation as part of its harmless error analysis, it
did so as a matter of state law.” The court therefore limited
its analysis to the evidence supporting the aggravating
factors, and concluded that the evidence of cruelty,
heinousness, and depravity underlying the (F)(6)
aggravating factor was so strong that Sansing was not
prejudiced by the Ring error. The court also held, albeit
without further analysis, that the Arizona Supreme Court’s
“review of the mitigating evidence, while not required by
SANSING V. RYAN 17
Ring, was thorough, and its assessment of the evidence was
not objectively unreasonable.”
Months after the district court rejected Claim 1, we
adopted a broader reading of Ring in Murdaugh v. Ryan,
724 F.3d 1104 (9th Cir. 2013). Murdaugh acknowledged
that a narrow reading of the Supreme Court’s decision
“would extend the Sixth Amendment right no further than its
express holding by concluding that a defendant only has a
right to have a jury determine aggravating factors.” Id. at
1115. But we nonetheless defined the scope of the right
more broadly to include the “determination that ‘there are no
mitigating circumstances sufficiently substantial to call for
leniency.’” Id. Thus, harmless-error review must
encompass not only the finding of aggravating factors, but
also “the existence or absence of mitigating circumstances.”
Id. at 1117. 1
To establish prejudice, a federal habeas petitioner must
demonstrate that a constitutional error resulted in “actual
prejudice”—that is, a “substantial and injurious effect or
influence” on the outcome. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). In Murdaugh, we applied the Brecht
standard “without regard for the state court’s harmlessness
determination.” 724 F.3d at 1118 (quoting Pulido v.
Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)). That
approach is no longer sound after Brown v. Davenport,
142 S. Ct. 1510 (2022). There, the Supreme Court clarified
that “satisfying Brecht is only a necessary, not a sufficient,
condition to relief.” Id. at 1520. A federal habeas petitioner
1
We need not decide whether the Supreme Court’s decision in
McKinney v. Arizona, 140 S. Ct. 702 (2020), calls into question this
aspect of Murdaugh’s holding, since we conclude below that the State is
entitled to prevail in any event.
18 SANSING V. RYAN
must meet the requirements of AEDPA as well. So when, as
here, the state court has determined on direct appeal that an
error was harmless beyond a reasonable doubt—the standard
required for review of non-structural constitutional errors
under Chapman v. California, 386 U.S. 18 (1967)—a
petitioner must demonstrate that the court “applied
Chapman in an objectively unreasonable manner.” Davis v.
Ayala, 576 U.S. 257, 269 (2015) (internal quotation marks
omitted).
We begin by deciding whether the Arizona Supreme
Court’s application of Chapman was objectively
unreasonable under AEDPA. That determination requires us
to ask whether “fairminded jurists” could agree with the
Arizona Supreme Court’s conclusion in Sansing II that the
Ring error was harmless beyond a reasonable doubt. Ayala,
576 U.S. at 269. If so, relief is precluded under 28 U.S.C.
§ 2254(d)(1). In our view, fairminded jurists applying the
governing beyond-a-reasonable-doubt standard could
conclude that the absence of a jury trial did not affect either
the finding of the (F)(6) aggravating factor or the
determination that the mitigating evidence was not
sufficiently substantial to call for leniency. Because Sansing
fails to satisfy AEDPA, we need not consider whether the
absence of a jury trial resulted in actual prejudice under
Brecht.
1. Finding of the (F)(6) aggravating factor. The
Arizona Supreme Court reasonably concluded that, given the
overwhelming and uncontroverted evidence, any reasonable
jury would have found that the murder was committed in
both an “especially cruel” and an “especially heinous”
manner. Sansing II, 77 P.3d at 33–36. Either finding is
sufficient on its own to establish the (F)(6) aggravating
factor. State v. Gretzler, 659 P.2d 1, 10 (Ariz. 1983).
SANSING V. RYAN 19
Under Arizona law, a murder is committed in an
especially cruel manner if “the victim consciously
experienced physical or mental pain prior to death.” Sansing
II, 77 P.3d at 33 (quoting State v. Trostle, 951 P.2d 869, 883
(Ariz. 1997)). The victim need not be conscious, however,
when “each and every wound” is inflicted. Id. (quoting State
v. Lopez, 786 P.2d 959, 966 (Ariz. 1990)).
Here, the Arizona Supreme Court found cruelty
established on three different grounds. The first was the
mental anguish Ms. Calabrese suffered before Sansing
struck her in the head with the wooden club, when he tackled
her, threw her to the ground, and tied her up. As the court
stated, Ms. Calabrese’s “defensive wounds, her pleas for
help, and her attempts to resist Sansing’s attack leave no
doubt [she] suffered mental anguish as she contemplated her
ultimate fate.” Id. at 34. The second ground was the mental
and physical suffering Ms. Calabrese endured when Sansing
raped her while her arms and legs remained bound. Id. And
the third ground was the physical pain Ms. Calabrese
endured as a result of the “substantial” blows to her head,
which caused “tremendous bleeding,” and the three stab
wounds to her abdomen, which struck the inferior vena cava
and penetrated her colon, stomach, large intestine, and
kidney—wounds that the medical examiner testified “would
have caused pain and would not have resulted in immediate
death.” Id. Fairminded jurists could conclude, beyond a
reasonable doubt, that the evidence of at least one and likely
all three of these grounds was overwhelming.
Sansing’s principal argument in response is that a
rational jury could have found that Ms. Calabrese did not
regain consciousness after he delivered the blows to her
head, which would mean that she was not conscious when
he raped and stabbed her. That contention, of course, does
20 SANSING V. RYAN
not negate the first of the grounds on which the Arizona
Supreme Court based its cruelty determination. But the
Arizona Supreme Court reasonably rejected Sansing’s
factual contention in any event. The evidence Sansing relies
on—the testimony of the medical examiner who performed
Ms. Calabrese’s autopsy—is itself equivocal. The medical
examiner did testify that he doubted Ms. Calabrese regained
consciousness after the blows, but he also stated that it was
not “medically unlikely or impossible” that she did. Both
Sansing and Kara made statements affirmatively
establishing that Ms. Calabrese did regain consciousness.
Sansing told a reporter who interviewed him following his
arrest that Ms. Calabrese had regained consciousness by the
time he returned to the house after moving her truck, and that
“after beating her so badly, he decided to kill her to end her
suffering.” According to the reporter, Sansing said: “She
was suffering. I wanted to end it. . . . I wasn’t playing God.
I just couldn’t handle seeing the condition she was in.” And
Kara testified during the penalty phase that Ms. Calabrese
was conscious during the rape, which occurred after Sansing
inflicted the blows to her head. Fairminded jurists could
conclude that, in the face of these admissions from Sansing
and Kara, no rational jury could have found that
Ms. Calabrese remained unconscious throughout almost the
entirety of the attack.
Sansing’s argument concerning the cruelty finding
suffers from a lack of supporting legal authority as well.
Sansing contends that under Arizona law the victim must
have been conscious at the time of death, but the principal
authority he relies on, State v. Wallace, 728 P.2d 232, 237
(Ariz. 1986), did not accurately state Arizona law at the time
of his sentencing. As the Arizona Supreme Court held in
Sansing I, “cruelty can exist even if the victim remained
conscious for only a short period during the attack.” 26 P.3d
SANSING V. RYAN 21
at 1127; see also State v. Schackart, 947 P.2d 315, 325 (Ariz.
1997). Ms. Calabrese was indisputably conscious for at least
a portion of the attack at issue here.
The Arizona Supreme Court’s conclusion as to
heinousness is also reasonable. Under Arizona law, the trier
of fact considers the following factors in determining
whether the defendant committed the murder in an especially
heinous manner: “(1) relishing of the murder by the
defendant; (2) infliction of gratuitous violence; (3) needless
mutilation; (4) senselessness of the crime; and
(5) helplessness of the victim.” Sansing II, 77 P.3d at 35
(citing Gretzler, 659 P.2d at 11). A finding of helplessness
“in conjunction with another Gretzler factor, such as
gratuitous violence,” is sufficient to establish that the murder
was especially heinous. Id. at 36. The helplessness factor is
present “when a victim is physically unable to resist the
murder.” Id. at 35 (citing State v. Gulbrandson, 906 P.2d
579, 602 (Ariz. 1995)). Gratuitous violence consists of
“violence beyond that necessary to kill.” Id. (citing State v.
Rienhardt, 951 P.2d 454, 465 (Ariz. 1997)).
Here, as the Arizona Supreme Court concluded,
“[o]verwhelming and uncontroverted evidence establishes
beyond a reasonable doubt that Sansing inflicted gratuitous
violence upon [Ms. Calabrese], a helpless victim.” Id. at 36.
Ms. Calabrese was helpless to defend herself because
Sansing bound her wrists and legs with electrical cords.
Sansing inflicted gratuitous violence upon her because “[t]he
rape, facial wounds, neck ligatures, gagging, blind-folding,
and grinding of the knife constitute violence beyond that
necessary to kill.” Id.
2. Assessment of the mitigating circumstances. The
Arizona Supreme Court reasonably concluded, beyond a
reasonable doubt, that no rational jury would have found the
22 SANSING V. RYAN
existence of any statutory mitigating circumstances or found
that Sansing’s non-statutory mitigating circumstances were
sufficiently substantial to call for leniency. Id. at 36–39.
As to the statutory mitigating circumstances, Sansing
attempted to prove, based on his consumption of crack
cocaine before the murder, that his “capacity to appreciate
the wrongfulness of his conduct or to conform his conduct
to the requirements of law was significantly impaired.”
Ariz. Rev. Stat. § 13-703(G)(1). Sansing presented evidence
that he consumed a large quantity of crack cocaine in the
four days leading up to the murder. Drug use can constitute
a mitigating circumstance under § 13-703(G)(1), but only if
the defendant can show, typically through expert testimony,
that a causal nexus exists between his ingestion of drugs and
his commission of the offense. Murdaugh, 724 F.3d at 1119.
The Arizona Supreme Court reasonably concluded that
Sansing “failed entirely” to make that showing. Sansing II,
77 P.3d at 37. Most glaringly, Sansing did not present any
expert testimony establishing the requisite causal nexus, see
id., which distinguishes this case from our decision in
Murdaugh, where such evidence had been presented. See
724 F.3d at 1121 (noting that the record included “expert
testimony establishing a direct causal link between
Murdaugh’s drug use and the murder”); see also id. at 1119.
The Arizona Supreme Court also reasonably concluded that
none of the other evidence Sansing presented, including
Kara’s testimony about their drug use on the day of the
murder, was sufficient to allow a reasonable jury to find that
Sansing’s crack cocaine use caused the level of impairment
that the (G)(1) mitigating circumstance requires. Sansing II,
77 P.3d at 37.
Although the lack of evidence supporting a causal nexus
was alone fatal to Sansing’s claim, the Arizona Supreme
SANSING V. RYAN 23
Court noted additional deficiencies that would preclude a
reasonable jury from finding the existence of the (G)(1)
mitigating circumstance. The court concluded that the
“deliberate actions” Sansing took in carrying out the crime,
which were proved by uncontroverted evidence, “refute his
impairment claim.” Id. at 38. For example, Sansing devised
a plan that involved robbing the person who would deliver a
charitable gift of food, and he “contacted two different
churches in his attempt to lure an unsuspecting victim to his
home.” Id. Far from supporting his impairment claim, these
and the other actions Sansing took, such as driving
Ms. Calabrese’s truck to a nearby parking lot after the initial
attack, “establish that the drug use did not overwhelm
Sansing’s ability to control his conduct.” Id.; see also State
v. Kiles, 857 P.2d 1212, 1229 (Ariz. 1993).
The Arizona Supreme Court further relied on
uncontroverted evidence establishing that Sansing took steps
to avoid detection after committing the murder. He moved
Ms. Calabrese’s truck away from his home, and when a
church pastor called later that night to inquire about
Ms. Calabrese, “Sansing gave him a false address and told
him that [Ms. Calabrese] never arrived.” Sansing II, 77 P.3d
at 38. In addition, Sansing washed blood from the club that
he used to perpetrate the initial attack, and he attempted to
hide Ms. Calabrese’s body after the murder. These steps to
thwart discovery of the crime, the Arizona Supreme Court
reasonably concluded, “negate any possibility that a
reasonable jury would find that Sansing’s capacity to
appreciate the wrongfulness of his conduct was significantly
impaired.” Id.; see also Rienhardt, 951 P.2d at 466.
In short, while we acknowledge that fairminded jurists
could disagree on this point, we think the Arizona Supreme
Court reasonably concluded, beyond a reasonable doubt, that
24 SANSING V. RYAN
no rational jury would have found the existence of the (G)(1)
mitigating circumstance. The “possibility for fairminded
disagreement” requires us to defer to the state court’s
determination, regardless of whether we would have reached
the same conclusion following an independent review of the
record. Harrington v. Richter, 562 U.S 86, 103 (2011).
As to the non-statutory mitigating circumstances,
Sansing highlighted his impairment at the time of the murder
and the fact that several family members attributed Sansing’s
violent conduct to his drug use. Sansing also emphasized his
deep remorse and his decision to accept responsibility for his
crimes by pleading guilty. In addition, Sansing submitted a
report by a mitigation specialist that detailed his
dysfunctional family background. The report noted that as a
child Sansing witnessed frequent incidents of domestic
violence between his mother and stepfather, that he began
using drugs in the fifth grade, and that he dropped out of high
school after his freshman year. Lastly, Sansing pointed to
his rehabilitative potential and his family’s love and support
as non-statutory mitigating circumstances.
A fairminded jurist could nonetheless conclude, beyond
a reasonable doubt, that “any reasonable jury would have
concluded that the mitigating evidence was not sufficiently
substantial to call for leniency.” Sansing II, 77 P.3d at 39.
The Arizona Supreme Court noted that “[t]he brutality of
this murder clearly sets it apart from the norm of first degree
murders.” Id. And the court reasonably determined that
“[c]ollectively, the mitigating evidence [was] minimal at
most.” Id. The court carefully reviewed the record and
reached a reasonable conclusion under the standard
established in Chapman and Neder v. United States,
527 U.S. 1 (1999).
SANSING V. RYAN 25
C
The dissent disagrees with our decision to defer to the
Arizona Supreme Court’s harmless-error determination
concerning the (G)(1) mitigating circumstance. According
to the dissent, no deference is owed under AEDPA because
the state court applied the wrong legal standard in making its
determination. We disagree. The dissent is correct in
asserting that Neder provides the applicable standard and
that the Arizona Supreme Court was required to determine
“whether a rational jury could have found that the facts
called for leniency.” Murdaugh, 724 F.3d at 1118 (emphasis
added); see also Neder, 527 U.S. at 19; United States v.
Perez, 962 F.3d 420, 442 (9th Cir. 2020). In our view, that
is the standard the Arizona Supreme Court applied, even if
it did not use the phrase “could have found” in explaining its
conclusion.
As noted above, in Sansing II the court applied the
harmless-error standard it had established in Ring III, a
standard that was itself drawn from Neder. See Sansing II,
77 P.3d at 33; Ring III, 65 P.3d at 944 (citing Neder,
527 U.S. at 19). Under that standard, the Arizona Supreme
Court’s inquiry “focuse[d] on whether no reasonable jury
could find that the mitigation evidence adduced during the
penalty phase [was] sufficiently substantial to call for
leniency.” Sansing II, 77 P.3d at 33 (quoting Ring III,
65 P.3d at 944) (emphasis added). In other words, the court
applied the same standard the dissent contends that Neder
required.
It is true, as the dissent asserts, that in finding harmless
error as to the (G)(1) mitigating circumstance, the Arizona
Supreme Court framed its conclusion in terms of what any
reasonable jury “would have” found rather than what a
reasonable jury “could have” found. But nothing of
26 SANSING V. RYAN
substance turns on this choice of language. We know that to
be true because the Supreme Court in Neder used the same
“would have” phrase in describing the harmless-error
standard adopted there. It instructed reviewing courts to ask,
“Is it clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error?”
Neder, 527 U.S. at 18 (emphasis added). The Arizona
Supreme Court asked that very question and concluded that
the answer here is yes.
The dissent contends that, in answering this question, the
state court ignored and discounted Sansing’s evidence and
generally failed to view the evidence in the light most
favorable to him. We do not read the Arizona Supreme
Court’s decision that way. Rather, we understand the court
to have concluded that Sansing’s evidence, even if credited,
was simply insufficient to allow a rational jury to find the
existence of the (G)(1) mitigating circumstance, given his
complete failure to establish a causal nexus and the
uncontroverted evidence that otherwise refuted his
impairment claim. The court stated that, given these
evidentiary deficiencies, “[n]o reasonable jury would have
concluded that Sansing met his burden to establish that his
ability to control his behavior or his capacity to appreciate
the wrongfulness of his conduct was significantly impaired.”
Sansing II, 77 P.3d at 37. If no reasonable jury would have
found a given fact, then the defendant necessarily failed to
present “sufficient evidence to permit a finding in his favor.”
Dissent at 46 (emphasis omitted). The Arizona Supreme
Court thus asked the right question here; the dissent’s
disagreement is simply with the answer the court gave.
III. Claim 2
We turn next to Claim 2, which alleges that Sansing’s
trial counsel rendered ineffective assistance in presenting his
SANSING V. RYAN 27
mitigation defense during the penalty phase. Sansing’s two
attorneys, Cotto and Ronan, divided responsibilities at the
penalty phase. Cotto assumed responsibility for disputing
the aggravating factors, and Ronan handled Sansing’s
mitigation defense. We therefore evaluate only Ronan’s
performance within the Strickland v. Washington, 466 U.S.
668 (1984), framework.
The PCR court held that Sansing failed to establish either
deficient performance or prejudice under Strickland.
Sansing contends that the PCR court’s rejection of Claim 2
“was contrary to, or involved an unreasonable application of,
clearly established Federal law,” and “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Section 2254(d) limits our review “to the record
that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
We conclude that, as to most of the challenged aspects
of Ronan’s representation, Sansing has not demonstrated
that the PCR court’s resolution of Strickland’s deficient-
performance prong was objectively unreasonable. As to the
two remaining aspects of the representation, we conclude
that the PCR court reasonably determined that Sansing has
not demonstrated prejudice.
A
We begin by assessing the PCR court’s basis for
concluding that Ronan did not render deficient performance,
applying the “doubly deferential” standard of review
mandated by AEDPA. Knowles v. Mirzayance, 556 U.S.
111, 123 (2009).
28 SANSING V. RYAN
Sansing contends that several aspects of Ronan’s
performance fell below the Sixth Amendment standard for
effective representation. First, Sansing claims that Ronan
failed to provide his experts with the materials they needed
“to develop an accurate profile of [his] mental health.”
Clabourne v. Lewis, 64 F.3d 1373, 1385 (9th Cir. 1995).
Ronan could not specifically recall whether he gave the
relevant files to Sansing’s experts, but he testified that there
was no reason why he would not have followed his standard
practice of doing so. Noting that counsel is “strongly
presumed to have rendered adequate assistance,” Strickland,
466 U.S. at 690, the PCR court found no reason to doubt that
Ronan did in fact provide the records to the experts.
Fairminded jurists could conclude that Sansing failed to
overcome the presumption of competence accorded to
Ronan’s representation. See Pinholster, 563 U.S. at 194.
The strongest contrary evidence Sansing can muster is a
discrepancy in the report of Dr. Kathryn Menendez, who
assessed Sansing for a learning disability. Her report states
that Sansing described himself as “an average student,” but
the report does not mention that his grades in middle school
were well below average—mostly D’s and F’s. From this
inconsistency, one might infer that Dr. Menendez never
received the school records from Ronan. But one could also
infer that Dr. Menendez merely recorded Sansing’s
statement and failed to cross-reference her interview notes
with the records Ronan had given her. The conflicting
inferences that may reasonably be drawn from this evidence
preclude us from saying that the PCR court’s decision was
“based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2).
SANSING V. RYAN 29
Second, Sansing contends that Ronan performed
deficiently by failing to introduce Dr. Menendez’s diagnosis
that Sansing suffers from an anti-social personality disorder.
The PCR court found that Ronan made a strategic decision
not to present this evidence. Ronan testified at the
evidentiary hearing that, “[b]ased on the report as I have now
seen it, I would not see any reason to call [Dr. Menendez]”
to introduce this diagnosis.
The PCR court reasonably determined that Ronan’s
choice not to call Dr. Menendez as a witness fell “well within
the range of professionally reasonable judgments.”
Strickland, 466 U.S. at 699; see Crittenden v. Ayers,
624 F.3d 943, 968 n.15 (9th Cir. 2010). Evidence of
Sansing’s anti-social personality disorder could have called
into question the sincerity of Sansing’s repeated professions
of remorse, see Beardslee v. Woodford, 358 F.3d 560, 582
(9th Cir. 2004), even if this diagnosis can be mitigating
under Arizona law, see Lambright v. Schriro, 490 F.3d 1103,
1125 (9th Cir. 2007). As we have observed, a “remorse-
oriented strategy” can sometimes represent the defendant’s
best path to avoid a death sentence. Elmore v. Sinclair,
799 F.3d 1238, 1250 (9th Cir. 2015).
Finally, Sansing alleges that Ronan’s investigation into
and presentation of his family background was deficient in
several respects. We disagree. For each aspect of Ronan’s
representation, there is a “reasonable argument that counsel
satisfied Strickland’s deferential standard.” Richter,
562 U.S. at 105.
Sansing contends that Ronan failed to uphold his
“obligation to conduct a thorough investigation of
[Sansing’s] background.” Williams v. Taylor, 529 U.S. 362,
396 (2000). As the PCR court noted, however, Sansing’s
“difficult childhood was discovered, evaluated, and
30 SANSING V. RYAN
reported” by the defense team’s mitigation specialist,
Pamela Davis. Davis’s investigative efforts were extensive.
She frequently visited Sansing in person and regularly
corresponded with him about his upbringing and drug use.
She spoke with Kara and Sansing’s sister Patsy in Arizona.
Davis traveled to Nevada to interview Sansing’s mother,
Glenda, and his sister Loretta. Davis also traveled to Utah
to meet with Sansing’s father, stepmother, and two half-
siblings, and to collect court records related to Sansing’s
criminal history. And Davis traveled to Alabama to
interview two more siblings, Allen and Susan, as well as
Sansing’s aunts and uncles.
Next, Sansing targets Ronan’s failure to present expert
testimony causally linking his dysfunctional upbringing to
the circumstances of the murder. At the PCR evidentiary
hearing, Sansing presented the testimony of a developmental
psychologist, Dr. Paul Miller. Dr. Miller viewed several
events in Sansing’s childhood—multiple changes in
residence, the constant proximity to domestic violence, his
mother’s divorces, and poor father figures, among others—
as “risk factors” that molded Sansing’s personality. He
opined that these risk factors increased the probability of a
“disruptive adulthood.” Notably, Dr. Miller declined to
offer an opinion on the “role [the risk factors] may have
played in the offense” committed by Sansing.
The PCR court reasonably found that Ronan made a
strategic decision not to present expert testimony linking
Sansing’s family background to the crime. Although a
different calculus might apply if the case had been tried
before a jury, Ronan believed that the sentencing judge “with
his background and experience would understand the
information that was going to be presented in” the Davis
letter. This choice did not fall “outside the wide range of
SANSING V. RYAN 31
professionally competent assistance.” Strickland, 466 U.S.
at 690. Much of the family-background evidence “was
neither complex nor technical”; it merely required the judge
to make “logical connections of the kind a layperson is well
equipped to make.” Wong v. Belmontes, 558 U.S. 15, 24
(2009) (per curiam).
Sansing also criticizes Ronan’s method of presenting his
traumatic childhood to the sentencing judge. Citing the 1989
American Bar Association Death Penalty Guidelines,
Sansing argues that Ronan should have relied on the live
testimony of his family members instead of (or in addition
to) Davis’s written report. But restatements of professional
standards, such as the ABA guidelines, are useful “only to
the extent they describe the professional norms prevailing
when the representation took place.” Bobby v. Van Hook,
558 U.S. 4, 7 (2009) (per curiam). A fairminded jurist could
credit Davis’s testimony that the submission of a written
report was the standard way to present family-background
evidence to a judge in Arizona in 1999.
B
Sansing challenges two remaining aspects of Ronan’s
representation during the penalty phase. As to both, we will
assume for the sake of argument that Ronan’s performance
was deficient.
The first concerns an additional alleged deficiency in the
presentation of evidence related to Sansing’s family
background. Sansing notes that new evidence was
discovered post-conviction and presented during the PCR
proceedings, which he contends Ronan should have
discovered and presented during the penalty phase. For
instance, Sansing’s siblings testified that their mother,
Glenda, neglected her children, frequently beat them, and
32 SANSING V. RYAN
left her bedroom door open while she had sex. Glenda
sometimes hit Sansing on the head with a spoon when he
refused to eat his vegetables, and one stepfather would
physically fight Sansing, then only 11 years old, to show him
“what a real man can do.” Witnesses also described
numerous violent episodes between Glenda and her partners.
This new evidence “largely duplicated the mitigation
evidence at trial.” Pinholster, 563 U.S. at 200. The
sentencing court was informed that Glenda’s parenting skills
were “ineffective,” that she kept the home in an
“unacceptable” condition, that Sansing was “exposed
weekly to domestic abuse, fueled by his mother’s and step-
father’s abuse of alcohol,” and that “there were hundreds of
calls to the police for domestic abuse” and frequent visits to
the hospital for Glenda. Davis also reported to the
sentencing court that Sansing was devastated by the death of
his maternal grandfather and afterwards suffered from a
“lack of positive male role models.” The sentencing court
was aware that, in the midst of an unstable childhood,
Sansing began abusing drugs at a young age and completed
only one year of high school. All told, Ronan convinced the
sentencing court, by a preponderance of the evidence, that
Sansing had a difficult childhood and a dysfunctional family.
Thus, even if the new evidence had been presented during
the penalty phase, it would not have altered the character of
Sansing’s mitigation defense in any significant respect.
Sansing has failed to show a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694.
The final aspect of Ronan’s representation at issue
involves his failure to investigate whether Sansing’s drug
use was causally linked to the murder. Ronan was aware that
SANSING V. RYAN 33
Sansing’s intoxication would be a principal focus of the
penalty phase. According to Kara, when she returned home
prior to Ms. Calabrese’s arrival, Sansing “was acting cold,”
“wasn’t his normal” self, and “was in another world,” a state
she attributed to his consumption of crack cocaine. Yet
Ronan failed to contact anyone with the requisite expertise
in substance abuse. During the PCR evidentiary hearing,
Sansing presented new expert testimony that he contends
Ronan should have presented during the penalty phase of the
trial.
We will assume that Ronan performed deficiently by
failing to present evidence of a causal link between
Sansing’s crack cocaine use and the murder he committed.
We nonetheless reject Sansing’s claim because the PCR
court reasonably determined that he failed to show prejudice.
The expert testimony Sansing relies on had defects that, the
PCR court permissibly found, would have undercut its
weight with the sentencing court.
Additional background on the expert testimony Sansing
presented during the PCR evidentiary hearing is necessary
before proceeding. The first expert Sansing presented was
Dr. Richard Lanyon, an expert in clinical and forensic
psychology. Dr. Lanyon discussed “the research showing
that extreme and heavy cocaine use can cause psychosis, and
that such states can last several hours.” In his view, Sansing
“entered some kind of severely abnormal mental state” as
Ms. Calabrese turned to leave his home. But his conclusion
rested entirely on how Sansing described the day’s events
during an interview with Dr. Lanyon years later. Sansing
explained that he “became convinced” that Ms. Calabrese
would report him to the police because she had witnessed
him make a “surreptitious hand motion to his wife”
indicating that Ms. Calabrese had not brought a purse. At
34 SANSING V. RYAN
this point, Sansing asserted, he “stepped into a hole [where]
everything’s dark,” and he could not see Ms. Calabrese, only
“the outline of her figure.” Sansing told Dr. Lanyon that his
heart was “racing and going so fast” that he thought he was
going to die. After tackling her, Sansing “did the subsequent
things ‘out of panic.’”
Dr. Lanyon deemed Sansing’s stated belief that
Ms. Calabrese intended to contact the police to be a “serious
and pivotal cognitive distortion [that] could have been a
product of a paranoid personality disorder, or independently,
a product of a delusional psychotic mental state brought
about by his cocaine intoxication.” “This delusion,”
Dr. Lanyon concluded, “triggered a series of behaviors that
were grossly out of character for him and are best explained
by a psychotic mental state.”
Sansing also presented the testimony of Dr. Edward
French, an expert in pharmacology. He too viewed
Sansing’s statements as establishing that “his chronic use of
methamphetamine and crack cocaine negatively impacted
the underlying cognitive and emotional dysfunctions
described by Dr. Lanyon, and thereby diminished his ability
to control his conduct toward the victim and his behavior
several hours thereafter.” Dr. French further explained that
his expert conclusion did not depend on the quantity of crack
cocaine that Sansing had consumed.
In response, the State presented its own expert,
Dr. Michael Bayless. Dr. Bayless, a forensic and clinical
psychologist, pointed to evidence that “Sansing admitted he
knew what he was doing and that he knew it was wrong.”
Rather than suffering from a “paranoid delusion,” Sansing
took steps to avoid prosecution, albeit steps that were poorly
calculated to that end. Sansing told Dr. Bayless that “after
he initially attacked the victim he was aware he had crossed
SANSING V. RYAN 35
the line and decided that he would attempt to make it look
like a murder secondary to robbery and sexual assault.”
(Sansing’s admission to Dr. Bayless is consistent with
Kara’s account of what Sansing told her just before he raped
Ms. Calabrese.) In Dr. Bayless’s view, “there is no
indication that [Sansing] was suffering from any psychosis.”
The PCR court reasonably concluded that Sansing had
not shown a reasonable probability that the testimony of
Dr. Lanyon and Dr. French would have allowed him to
establish the (G)(1) mitigating circumstance. Although
Dr. Lanyon and Dr. French opined that Sansing suffered
from cocaine-induced psychosis, they did not describe the
requisite impact on Sansing’s “capacity to appreciate the
wrongfulness of his conduct” or to “conform his conduct to
the requirements of law.” Ariz. Rev. Stat. § 13-703(G)(1).
Dr. Lanyon posited that Sansing was psychotic but
acknowledged that Sansing knew “he crossed the line,”
feared being arrested, and acted to avoid being caught. And
Dr. French defined psychosis broadly as a “thought
disorder” that prevents an individual from “cop[ing] well
with emotional things that are occurring in [his]
environment.” This type of expert opinion falls short of
proving substantial impairment under Arizona law,
particularly given the evidence establishing Sansing’s
attempts to avoid prosecution. See Medrano, 914 P.2d
at 228; Kiles, 857 P.2d at 1228–29.
Moreover, Dr. Lanyon and Dr. French did not base their
conclusions on the amount of cocaine Sansing ingested.
Instead, they drew speculative inferences from Sansing’s
descriptions of how he felt during the attack. The PCR court
reasonably concluded that the sentencing court would have
discounted expert testimony “marred by Sansing’s motive to
36 SANSING V. RYAN
fabricate.” See State v. Poyson, 7 P.3d 79, 89 (Ariz. 2000);
Medrano, 914 P.2d at 227.
Nor would the new expert testimony have significantly
altered the character of the non-statutory mitigating
circumstances before the sentencing court. The court
already knew that Sansing was under the influence of crack
cocaine at the time of the crime. Because Ronan had
introduced enough evidence to establish Sansing’s
impairment as a non-statutory mitigating circumstance, the
opinions of Dr. Lanyon and Dr. French would have been
cumulative on that issue. See Smith v. Ryan, 823 F.3d 1270,
1296 (9th Cir. 2016). Thus, the PCR court reasonably
concluded that the likelihood of a different sentencing
outcome was merely “conceivable,” not reasonably
probable. Richter, 562 U.S. at 112. 2
Finally, Sansing contends that, even if he has not shown
a reasonable probability of a different outcome during the
penalty phase of the trial, we should consider the impact
Ronan’s deficient performance had on the outcome of his
direct appeal. Specifically, Sansing argues that, had Ronan
presented expert testimony on crack cocaine abuse, there is
a reasonable probability that the Arizona Supreme Court
2
Although it does not impact our prejudice analysis, we note one
credibility concern with the testimony of Dr. Bayless. Based primarily
on a hand gesture Sansing allegedly made during their interview
together, Dr. Bayless inferred an explanation for Sansing’s decision to
rape Ms. Calabrese—namely, that “her dress flew up,” thereby exposing
her vaginal area. The PCR court found Dr. Bayless’s testimony credible,
notwithstanding the fact that Ms. Calabrese was wearing pants during
the attack. Despite the baseless nature of Dr. Bayless’s testimony on this
point, we do not think it affected the outcome here, as the reason Sansing
committed the rape was immaterial both to the sentencing court’s
decision and to the PCR court’s prejudice analysis.
SANSING V. RYAN 37
would not have found the Ring error harmless beyond a
reasonable doubt in Sansing II.
We cannot accept Sansing’s invitation to consider
whether the testimony of Dr. French and Dr. Lanyon would
have affected the outcome of his direct appeal. The PCR
court did not fail to apply “clearly established Federal law,
as determined by the Supreme Court,” when it assessed only
the probability of a different outcome at the penalty phase of
the trial. 28 U.S.C. § 2254(d)(1). The Supreme Court has
not yet held that courts must evaluate the impact of trial
counsel’s deficient performance on the outcome of a
petitioner’s direct appeal. Cf. Weaver v. Massachusetts,
137 S. Ct. 1899, 1910–11 (2017) (requiring petitioner to
show a reasonable probability of a different outcome at trial,
even though trial counsel’s deficient performance consisted
of failing to object to structural error that would have entitled
petitioner to automatic reversal on direct appeal). Thus,
under AEDPA, we cannot fault the PCR court for viewing
the scope of Strickland’s prejudice analysis as extending no
further than the trial itself.
IV. Claims 4 and 8
Sansing raises two closely related claims, Claims 4 and
8, stemming from the factual basis he offered when pleading
guilty and a related sentencing stipulation. In Claim 8,
which we address first, Sansing contends that he did not
knowingly and intelligently waive his privilege against self-
incrimination when admitting a particular fact during the
plea colloquy. In Claim 4, he alleges that Ronan rendered
ineffective assistance during the guilty-plea process in
violation of his right to counsel under the Sixth Amendment.
38 SANSING V. RYAN
A
Sansing frames Claim 8 as a due process challenge to the
factual basis he provided during the plea colloquy. When he
entered his guilty pleas, Sansing signed a written factual
basis and orally attested to its truth at the change-of-plea
hearing. That factual basis included an admission that “the
victim was still conscious, alive and tied up with cords”
when Sansing returned to the house after moving
Ms. Calabrese’s truck (and thus was likely conscious when
he raped her). Sansing alleges that he was unaware that his
admission that Ms. Calabrese was conscious during the rape
could be used to prove cruelty under the (F)(6) aggravating
factor. For this reason, Sansing argues, the waiver of his
privilege against self-incrimination was not knowing and
intelligent. Because the PCR court summarily denied this
claim, we can grant relief only if no reasonable application
of the Supreme Court’s precedent as of 2008 “could have
supported” the result. Richter, 562 U.S. at 102.
Sansing relies on the Supreme Court’s decision in Boykin
v. Alabama, 395 U.S. 238 (1969), but that case did not
require the trial court to inform Sansing during the plea
colloquy that the State could rely on the factual basis during
the penalty phase. To ensure that a guilty plea is “intelligent
and voluntary,” the trial court must advise the defendant of
three constitutional rights he waives by pleading guilty: his
privilege against compulsory self-incrimination, his right to
a jury trial, and his right to confront witnesses against him.
Id. at 242–44. The trial court provided those advisements to
Sansing during his change-of-plea hearing. The Supreme
Court has not yet held that the trial court must affirmatively
discuss during the plea colloquy the potential impact a
defendant’s factual admissions may have on capital
sentencing proceedings. Section 2254(d)(1) “does not
SANSING V. RYAN 39
require state courts to extend [the Supreme Court’s]
precedent or license federal courts to treat the failure to do
so as error.” White v. Woodall, 572 U.S. 415, 426 (2014).
B
In Claim 4, Sansing asserts an ineffective-assistance-of-
counsel claim that shares the same factual predicate as Claim
8. We issued a certificate of appealability for this claim
under 28 U.S.C. § 2253(c). See Slack v. McDaniel, 529 U.S.
473, 484 (2000).
Claim 4 centers on the same admission that
Ms. Calabrese was conscious during the rape, but it
encompasses a related sentencing stipulation as well.
During the penalty phase, Sansing stipulated to the
admission of hearsay statements made by his children so that
the State would not call them as witnesses. The children
reported that Sansing planned to rob whomever delivered the
box of food, and they described how the attack unfolded. In
addition, Sansing stipulated that Victoria Harker, a
journalist, would have testified that Sansing told her while
awaiting trial that “after raping and beating [Ms. Calabrese]
so badly, he decided to kill her to end her suffering,” and that
when he returned from moving her truck, Ms. Calabrese
“had regained consciousness.”
Sansing contends that Ronan rendered ineffective
assistance because (1) he did not inform Sansing that the
State could use the factual basis during the penalty phase of
his trial; (2) he permitted Sansing to admit that
Ms. Calabrese was conscious during the rape even though
that was not an element of any of the charged offenses; and
(3) he stipulated to the admission of out-of-court statements
by Sansing’s children and Harker without first interviewing
them.
40 SANSING V. RYAN
Because the PCR court denied this claim without
reasoning, we are again precluded from granting relief
unless no reasonable application of Supreme Court
precedent “could have supported” the result. Richter,
562 U.S. at 102. Here, we need discuss only the prejudice
prong of Strickland. Sansing alleges that, absent Ronan’s
deficient performance, he would not have admitted
Ms. Calabrese was conscious and would not have agreed to
the sentencing stipulation. To establish prejudice under
Strickland, he must show a reasonable probability that he
would have received a different sentence had the admission
and sentencing stipulation not been offered. See Strickland,
466 U.S. at 694.
Even accepting that Ronan rendered ineffective
assistance in the three respects described above, a
fairminded jurist could conclude that Sansing failed to show
a reasonable probability he would have received a different
sentence. Sansing’s claim of prejudice is refuted by the
State’s ability to call witnesses who would have established
the same facts covered by the factual basis and sentencing
stipulation. The admission of Ms. Calabrese’s
consciousness in the factual basis did not change the mix of
evidence before the sentencing court because Sansing had
already told Harker that “the victim had regained
consciousness” when he returned from moving
Ms. Calabrese’s truck, and that he killed her to “end her
suffering.” Nor was Ronan’s use of a sentencing stipulation
prejudicial, given that Sansing presented no evidence that his
children or Harker would have testified differently if Ronan
had refused to stipulate to the admission of their out-of-court
statements. In other words, the State could have called
Harker to repeat Sansing’s admission that Ms. Calabrese was
conscious, see Ariz. R. Evid. 801(d)(2)(A), and the State
could have replaced the sentencing stipulation with in-court
SANSING V. RYAN 41
testimony by Sansing’s children. Their statements,
moreover, largely tracked the narrative that Kara provided
when she testified during the penalty phase.
V. Claim 7
In Claim 7, Sansing alleges that the Arizona courts
violated the Eighth Amendment by applying an
impermissible “causal nexus” test when assessing his non-
statutory mitigating circumstances. See Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982).
Beginning in 1989, and continuing through the time of
Sansing’s trial in 1999, Arizona courts frequently applied “a
‘causal nexus’ test for nonstatutory mitigation that forbade
as a matter of law giving weight to mitigating evidence, such
as family background or mental condition, unless the
background or mental condition was causally connected to
the crime.” McKinney v. Ryan, 813 F.3d 798, 802 (9th Cir.
2015) (en banc). In 2004, the Supreme Court
“unequivocally rejected” causal-nexus tests like Arizona’s.
Smith v. Texas, 543 U.S. 37, 45 (2004) (per curiam); see
Tennard v. Dretke, 542 U.S. 274, 285 (2004). We later held
that Tennard and Smith apply retroactively on federal habeas
review. Schad v. Ryan, 671 F.3d 708, 723 (9th Cir. 2011)
(per curiam).
Sansing contends that the sentencing court and the
Arizona Supreme Court both applied the causal-nexus test
we condemned in McKinney. We address each court’s
actions in turn.
The sentencing court did not treat “would-be mitigation
evidence as legally irrelevant in violation of Eddings.”
McKinney, 813 F.3d at 818. Although the court evaluated
Sansing’s evidence of intoxication for a causal link to the
42 SANSING V. RYAN
crime, “[w]hen applied solely in the context of statutory
mitigation under § 13-703(G)(1), the causal nexus test does
not violate Eddings.” Id. at 810. The court still considered
Sansing’s impairment to be a non-statutory mitigating
circumstance, which shows that it “did not exclude evidence
from [its] mitigation assessment based solely on the lack of
a causal nexus.” Mann v. Ryan, 828 F.3d 1143, 1159 (9th
Cir. 2016) (en banc).
The sentencing court also reduced the weight accorded
certain mitigating circumstances due to the absence of a
causal nexus, a choice not foreclosed by Eddings. See
Poyson v. Ryan, 879 F.3d 875, 888 (9th Cir. 2018). After
finding that Sansing “has shown by a preponderance of the
evidence that he had a difficult childhood and family
background,” the court noted that there was no “causal link
to the horrific crime.” On that basis, the court did “not give
significant mitigating weight” to this factor. Similarly, the
court gave “only minimal weight” to the evidence of love
and support from Sansing’s family “because it did not
prevent the defendant from committing this horrible crime.”
The sentencing court’s reference to the weight of these
factors bolsters our conclusion that it did not strip the
mitigating circumstances of all weight by applying an
unconstitutional causal-nexus test. 3
3
For the same reason, we reject Sansing’s argument that the Arizona
Supreme Court improperly employed a causal-nexus test in Sansing II
when it held that a rational jury would have given “only minimal weight”
to Sansing’s difficult childhood and lack of education absent a “causal
link” to the crime. 77 P.3d at 39. As discussed, the lack of a causal
nexus may appropriately bear on the weight to be given mitigating
evidence, and a jury is “free to assign less weight to mitigating factors
that did not influence a defendant’s conduct at the time of the crime.”
Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017). Thus, the
SANSING V. RYAN 43
Sansing argues that the Arizona Supreme Court also
applied an impermissible causal-nexus test when
adjudicating his claim in Sansing I that the sentencing court
violated the Eighth Amendment. He highlights the Arizona
Supreme Court’s assertion that “‘Arizona law states that a
difficult family background is not relevant unless the
defendant can establish that his family experience is linked
to his criminal behavior.’” Sansing I, 26 P.3d at 1129–30
(emphasis added) (quoting State v. Djerf, 959 P.2d 1274,
1289 (Ariz. 1998)). And he points to the court’s reliance on
Djerf and State v. Hoskins, 14 P.3d 997 (Ariz. 2000), two
cases we have identified as examples of Arizona’s
unconstitutional causal-nexus test. See McKinney, 813 F.3d
at 814–15.
These factors raise the possibility that the Arizona
Supreme Court applied a rule contrary to Eddings. We need
not resolve that issue, however, because even if the Arizona
Supreme Court erred in this regard, Sansing cannot show
actual prejudice from the error under Brecht. See Djerf v.
Ryan, 931 F.3d 870, 885–87 (9th Cir. 2019); Greenway v.
Ryan, 866 F.3d 1094, 1100 (9th Cir. 2017) (per curiam). We
see nothing in the record remotely suggesting that the
Arizona Supreme Court would have reached a different
conclusion had it followed the sentencing court’s lead and
accorded Sansing’s difficult family background minimal
weight rather than no weight.
Arizona Supreme Court permissibly “raised the issue of a causal nexus
to determine the weight that a hypothetical jury would have given
relevant mitigating evidence.” Murdaugh, 724 F.3d at 1122 (internal
quotation marks omitted).
44 SANSING V. RYAN
VI. Claim 12
In Claim 12, Sansing alleges that the sentencing court
violated his Eighth Amendment rights by refusing to
consider a letter submitted by Ms. Calabrese’s 10-year-old
daughter. In the letter, handwritten and addressed to the
sentencing judge, Ms. Calabrese’s daughter expressed her
view that Sansing “should go to jail instead of dying.” The
Arizona Supreme Court upheld the sentencing court’s
refusal to consider the letter on the ground that it was
“irrelevant to either the defendant’s character or the
circumstances of the crime.” Sansing I, 26 P.3d at 1129.
The court also noted that state law forbade “the
consideration of ‘any recommendation made by the victim
regarding the sentence to be imposed.’” Id. (quoting Ariz.
Rev. Stat. § 13-703(D) (2001)).
Sansing contends that the Arizona Supreme Court’s
decision involved an unreasonable application of the
Supreme Court’s Eighth Amendment precedent, but relief
on this claim is precluded under 28 U.S.C. § 2254(d)(1).
The Supreme Court has held that the Eighth Amendment
prohibits the State from introducing the victim’s family’s
recommendation that the defendant be put to death. Booth
v. Maryland, 482 U.S. 496, 502–03 (1987); see Bosse v.
Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (noting that
Booth remains good law on this point). But the Court has
never held that a defendant in a capital case is entitled to
have the jury consider the victim’s family’s recommendation
of leniency. Indeed, to our knowledge, no court has adopted
that interpretation of the Eighth Amendment, and at least two
circuits and a number of state high courts have rejected it.
See United States v. Brown, 441 F.3d 1330, 1351–52 n.8
(11th Cir. 2006); Robison v. Maynard, 829 F.2d 1501, 1504–
05 (10th Cir. 1987); see also Kaczmarek v. State, 91 P.3d 16,
SANSING V. RYAN 45
32 n.71 (Nev. 2004) (collecting cases). These “diverging
approaches to the question illustrate the possibility of
fairminded disagreement.” Woodall, 572 U.S. at 422 n.3.
* * *
Because Sansing is not entitled to relief on any of the
claims certified for our review, we affirm the district court’s
denial of his petition for a writ of habeas corpus.
AFFIRMED.
BERZON, Circuit Judge, dissenting:
I respectfully dissent. I would grant the petition as to
Claim 1, Ring error prejudice, and so would not reach the
other challenges to the death sentence discussed in the
majority opinion. I concur in the majority’s analysis of
Claims 4 and 8, relating to the factual basis Sansing offered
when pleading guilty.
The Arizona courts denied John Sansing’s constitutional
right to have the facts making him eligible for a death
sentence determined by a jury, not a judge. Ring v. Arizona,
536 U.S. 584, 589 (2002). The Arizona Supreme Court then
concluded that that constitutional error was harmless beyond
a reasonable doubt because, in its view, any reasonable juror
would have found that Sansing murdered Trudy Calabrese
in an especially cruel and heinous way, and no reasonable
jury “would have found” that the mitigating evidence was
sufficiently substantial to call for leniency. State v. Sansing
(Sansing II), 77 P.3d 30, 35–36, 39 (Ariz. 2003). In so
holding, the Arizona Supreme Court applied the wrong legal
46 SANSING V. RYAN
standard, contrary to clearly established federal law. See
28 U.S.C. § 2254(d)(1).
Neder v. United States, 527 U.S. 1 (1999), instructs that
the failure to have a jury determine a required element in a
criminal case is not harmless if the defendant presented
sufficient evidence to permit a finding in his favor. Id. at 19.
The question is not what a court believes a reasonable jury
would have found, but what a reasonable jury could have
found, given the evidence in the record. See id. Critically, in
reviewing whether Sansing presented sufficient evidence to
support a finding that mitigating factors existed, the Arizona
Supreme Court was required, but failed, to view the evidence
in the light most favorable to Sansing. Cf. Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (explaining how to
conduct a sufficiency-of-evidence review in the context of
determining whether the evidence was sufficient to convict).
The state court weighed and discounted witness testimony,
but those determinations are improper in a sufficiency-of-
evidence review, as it is the jury’s role to assess the weight
and credibility of testimony. See Schlup v. Delo, 513 U.S.
298, 330 (1995) (citing Jackson, 443 U.S. at 319).
Because the Arizona Supreme Court applied the wrong
legal standard, we owe no deference to its harmlessness
determination. See Inthavong v. Lamarque, 420 F.3d 1055,
1059 (9th Cir. 2005). I would therefore go on to review,
under Brecht v. Abrahamson, 507 U.S. 619 (1993), whether
the deprivation of the right to a jury determination had a
“substantial and injurious effect” on Sansing’s sentence. Id.
at 637 (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)). Under our precedent, we conduct that inquiry
by asking the same question the Arizona Supreme Court
should have asked: “whether a rational jury could have
found” that Sansing had established the existence of
SANSING V. RYAN 47
mitigating factors. Murdaugh v. Ryan, 724 F.3d 1104, 1118
(9th Cir. 2013) (emphasis added).
If the evidence is viewed in the light most favorable to
Sansing, as is proper under Neder and Murdaugh, then
Sansing assuredly presented sufficient evidence to allow a
jury to conclude that, because of his crack cocaine use, his
capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was
“significantly impaired.” Ariz. Rev. Stat. § 13-703(G)(1)
(1999). In the present context—that is, where there was no
jury determination at all, so the question is not the likely
impact of a constitutional error in the jury trial—the
possibility that a jury could have so found is enough to
establish prejudice under Brecht. Murdaugh, 724 F.3d
at 1120. Had a jury so found, the aggravating and mitigating
factors in Sansing’s case could reasonably have been
weighed differently, and he could not have been sentenced
to death. I would therefore grant Sansing’s petition for a writ
of habeas corpus as to Claim 1.
I.
As recounted by the majority, Ring ruled
unconstitutional the judge-based capital-sentencing scheme
in effect in Arizona at the time of Sansing’s sentencing.
Ring, 536 U.S. at 609; Majority op. 14. Ring relied on
Apprendi v. New Jersey, 530 U.S. 466 (2000), which held
that “the Sixth Amendment does not permit a defendant to
be ‘exposed . . . to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in
the jury verdict alone.’” Ring, 536 U.S. at 588–89 (quoting
Apprendi, 530 U.S. at 483) (alteration omitted). The Court
concluded in Ring that “[c]apital defendants, no less than
noncapital defendants, . . . are entitled to a jury
48 SANSING V. RYAN
determination of any fact on which the legislature conditions
an increase in their maximum punishment.” Id. at 589.
The Arizona capital sentencing statute provided that, in
“determining whether to impose a sentence of death or life
imprisonment,” the sentencing judge “shall take into account
the aggravating and mitigating circumstances included in . . .
this section and shall impose a sentence of death if the court
finds one or more of the [enumerated] aggravating
circumstances . . . and that there are no mitigating
circumstances sufficiently substantial to call for leniency.”
Ariz. Rev. Stat. § 13-703(E) (1999). We have interpreted
Ring to require that a jury determine not only the “presence
or absence of the aggravating factors required by Arizona
law for imposition of the death penalty,” Ring, 536 U.S. at
588, but also “the existence or absence of mitigating
circumstances,” Murdaugh, 724 F.3d at 1117. Murdaugh
concluded that Ring requires this dual finding because under
the Arizona scheme, “a defendant’s eligibility for a death
sentence was effectively contingent on the judge’s findings
regarding both aggravating and mitigating circumstances,”
as the “‘ultimate element’ qualifying the defendant for death
was ‘at least one aggravating circumstance not outweighed
by one or more mitigating factors.’” Id. at 1115 (quoting
State v. Ring, 65 P.3d 915, 935 (Ariz. 2003)).
Notably, Murdaugh did not hold that the weighing of
aggravating against mitigating factors is a factual
determination that must under Ring be carried out by a jury.
Recently, the Supreme Court held that “a jury (as opposed to
a judge) is not constitutionally required to weigh the
aggravating and mitigating circumstances or to make the
ultimate sentencing decision within the relevant sentencing
range.” McKinney v. Arizona, 140 S. Ct. 702, 707 (2020)
(emphasis added). McKinney does not affect Murdaugh’s
SANSING V. RYAN 49
conclusion that a jury must find “the existence or absence of
mitigating circumstances.” Murdaugh, 724 F.3d at 1117
(emphasis added). We therefore remain bound by our
precedent to consider whether the Arizona courts’
deprivation of Sansing’s right to have a jury determine the
presence or absence of mitigating factors was harmless. 1
II.
The majority determines that the Arizona Supreme
Court’s application of the “harmless beyond a reasonable
doubt” standard from Chapman v. California, 386 U.S. 18,
24 (1967), was not objectively unreasonable under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2254(d)(1). Majority op. 18. The majority
concludes that habeas relief is therefore not warranted, and
finds no need to apply the “substantial and injurious effect”
standard from Brecht, 507 U.S. at 637. A court granting
habeas relief must, however, apply both the
1
In my view, the right to have a jury find the facts required to impose
the death penalty is fundamental, and the deprivation of that right can
never be harmless. See Sullivan v. Louisiana, 508 U.S. 275, 281–82
(1993) (deprivation of the right to trial by jury “unquestionably qualifies
as structural error” (internal quotation marks omitted)); Summerlin v.
Stewart, 341 F.3d 1082, 1116 (9th Cir. 2003) (en banc), rev’d on other
grounds, Schriro v. Summerlin, 542 U.S. 348 (2004); Sansing II, 77 P.3d
at 40 (Jones, C.J., concurring in part and dissenting in part); State v. Ring,
65 P.3d 915, 946–48 (Ariz. 2003) (Feldman, J., concurring in part and
dissenting in part). Moreover, determining what a nonexistent jury would
have done regarding a penalty phase record that would undoubtedly have
been quite different if tried to a jury rather than a judge is an exercise in
rank speculation that should not govern life-or-death determinations. But
because the Supreme Court has specifically left open whether Ring error
can be harmless, see Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (citing
Ring, 536 U.S. at 609 n.7), we have held that we must defer to the
Arizona Supreme Court’s decision to apply harmless error review, see
Murdaugh, 724 F.3d at 1117. This opinion follows that course.
50 SANSING V. RYAN
AEDPA/Chapman test as well as the standard set forth in
Brecht. Brown v. Davenport, 142 S. Ct. 1510, 1517, 1520,
1524 (2022). I therefore apply both tests here.
A.
The majority errs in its review of the state court’s
application of Chapman. The state court’s application was
contrary to federal law, as clearly established by Neder v.
United States, 527 U.S. 1 (1999). Neder set forth narrow
parameters for applying Chapman in cases in which an
essential element of a criminal offense was never submitted
to a jury at all. Id. at 19.
In Neder, the defendant was convicted of federal charges
involving tax fraud. Although materiality was an element of
the crime, the district court refused to submit the materiality
issue to the jury. Id. at 4. Neder applied harmless error
review under Chapman, but it explained that because the
omitted element was never submitted to a jury, the review
must focus on “whether the record contains evidence that
could rationally lead to a contrary finding with respect to the
omitted element.” Id. at 19 (emphasis added). If, after a
“thorough examination of the record,” the reviewing court
“cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error—for
example, where the defendant contested the omitted element
and raised evidence sufficient to support a contrary finding—
it should not find the error harmless.” Id. (emphasis added).
The reason for conducting a sufficiency-of-evidence
review in these circumstances instead of the typical record-
as-a-whole Chapman inquiry is that the whole-record
approach to Chapman cannot be applied directly where, as
here, there was not simply a trial error during a jury trial but
no jury at all. “[T]he question [Chapman] instructs the
SANSING V. RYAN 51
reviewing court to consider is not what effect the
constitutional error might generally be expected to have
upon a reasonable jury, but rather what effect it had upon the
[jury determination] in the case at hand.” Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993) (emphasis added).
Where the constitutional error is that there was no jury at all,
a Chapman analysis cannot be directed at answering that
question, but must instead take into account the difficulty of
projecting what a jury would have done on an issue never
presented to it. See id. at 280.
That is why, as we have recently observed, Neder sets “a
high bar for finding harmlessness beyond a reasonable
doubt” with regard to an issue never decided at all by a jury.
United States v. Perez, 962 F.3d 420, 442 (9th Cir. 2020). In
that circumstance, the question is not whether there is,
beyond a reasonable doubt, strong evidence to support the
trial judge’s finding on the element in question, but whether
there is sufficient evidence to support the defendant’s
contentions to the contrary. Id. Where there is, an appellate
court cannot with any confidence predict beyond a
reasonable doubt that a non-existent jury would have
rejected the sufficient evidence in favor of the prosecution’s
case.
Importantly, a court reviewing that sufficiency-of-
evidence question asks whether the record contains evidence
that “could” lead to a particular finding. Neder, 527 U.S. at
19; see Jackson, 443 U.S. at 319. “[T]he use of the word
‘could’ focuses the inquiry on the power of the trier of fact
to reach its conclusion,” and not on the reviewing court’s
assessment of how a factfinder would “likely behav[e]” on
the record as a whole. Schlup, 513 U.S. at 330 (quoting
Jackson, 443 U.S. at 319). For that reason, a court applying
Neder’s harmless error standard must view all the evidence
52 SANSING V. RYAN
in the “light most favorable” to the defense assertion that
there was sufficient evidence to support a finding in its favor,
see Jackson, 443 U.S. at 319, and generally does not assess
the “credibility of witnesses,” see Schlup, 513 U.S. at 330.
A useful analogy is the context of determining whether a
criminal defendant has a right to a jury instruction on a
defense. In that instance, as here, the defendant is deprived
of a jury determination that should have gone forward. In the
precluded defense context, we ask only whether the
defendant has presented sufficient evidence to warrant the
requested instruction, recognizing that the “weight and
credibility of the conflicting testimony are issues [for] the
jury, not the court,” to resolve. United States v. Becerra,
992 F.2d 960, 963–64 (9th Cir. 1993), overruled on other
grounds by United States v. Collazo, 984 F.3d 1308, 1335
(9th Cir. 2021); see also United States v. Bailey, 444 U.S.
394, 414–15 (1980). Likewise, in assessing sufficiency in
the civil summary judgment context, “[c]redibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
B.
Here, the sentencing judge found it “likely” that Sansing
“was impaired or affected by his crack cocaine usage at the
time of the murder” but held that Sansing had not shown he
was sufficiently impaired to establish the (G)(1) mitigating
factor. To meet that factor, Sansing was required to prove by
a preponderance of the evidence that his “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.” Ariz. Rev. Stat. § 13-703(G)(1) (1999)
SANSING V. RYAN 53
(emphasis added); Sansing II, 77 P.3d at 36. In other words,
Sansing had to show that his “mental capabilities were
significantly, but only partially, impaired.” State v. Gretzler,
659 P.2d 1, 17 (Ariz. 1983) (upholding finding of
impairment where “continuous use of drugs likely impaired
defendant’s volitional capabilities” although he retained the
ability to “distinguish right from wrong” and to “exercise
some control over his behavior,” id. at 16–17). In reviewing
whether Sansing was prejudiced by the deprivation of his
right to have a jury decide whether he had established the
(G)(1) mitigating factor, the Arizona Supreme Court,
contrary to Neder, failed to consider whether, viewing the
evidence in the light most favorable to Sansing, the record
contained sufficient evidence to allow a jury to find that
Sansing’s capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law
was significantly impaired. See Sansing II, 77 P.3d at 37–38;
Ariz. Rev. Stat. § 13-703(G)(1) (1999).
1. The Arizona Supreme Court began by reasoning that
Sansing had “failed entirely to show any causal nexus
between his alleged drug use and impairment” because he
“presented no expert testimony to support his assertion that
his use of cocaine impaired either his capacity to control his
conduct or his capacity to appreciate the wrongfulness of his
actions.” Sansing II, 77 P.3d at 37. But Sansing’s failure to
present expert testimony would not preclude a jury from
finding significant impairment. The Arizona Supreme Court
has not held expert testimony required to satisfy the (G)(1)
mitigating factor, only that it is “[t]ypically” presented. Id.As discussed below, Sansing presented other evidence of his
drug use and its effect on him at the time of the murder,
which a jury could have credited.
54 SANSING V. RYAN
The state court’s critique of Sansing’s failure to present
expert testimony is particularly problematic given the nature
of Ring error. At sentencing, Sansing’s counsel presented a
case for mitigation to a judge, not a jury. Had there been a
jury, counsel unquestionably would have presented the case
differently. In a hearing on Sansing’s petition for
postconviction review, his trial counsel stated that, although
he did not remember the details of his decision-making
process, he likely had not presented expert testimony
regarding Sansing’s drug use because he “felt that Judge
Reinstein . . . with his background and experience . . .
understood the nexus between substance abuse and the
commission of crimes.” In the analogous context of applying
Neder to determine whether an Apprendi error was harmless,
we emphasized, in a case in which the defendant was
convicted after a guilty plea, that the “record is . . . a guide
to determining what the evidence would have established if
the case had proceeded to trial,” but is “not a substitute for a
trial, and there need only be evidence sufficient to support a
contrary finding to show that the error was not harmless.”
United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011).
Here, the bench trial was no substitute for a jury trial.
The Arizona Supreme Court’s conclusion that the
deprivation of Sansing’s right to present his mitigation case
to a jury was harmless because defense counsel failed, in a
hearing before a sophisticated judge, to present expert
testimony that he may well have chosen to present to a jury
of laypersons does not take account of the different strategies
that are effective at jury and at judge trials, especially where
the death penalty is at stake. Cf. Gallegos v. Ryan, 820 F.3d
1013, 1039 (9th Cir.), opinion amended on reh’g, 842 F.3d
1123 (9th Cir. 2016) (explaining that there is “really no way
to know” how a jury would have weighed mitigating
evidence rejected by the sentencing judge); Gallegos v.
SANSING V. RYAN 55
Shinn, No. CV-01-01909-PHX-NVW, 2020 WL 7230698,
at *28 (D. Ariz. Dec. 8, 2020) (quoting Gallegos v. Ryan,
820 F.3d at 1039).
2. At the penalty phase, Sansing did present evidence
of his drug use and its impact, albeit without expert
testimony. He did so through a letter from a mitigation
specialist, Pamela Davis, and the testimony of his wife, Kara
Sansing, and his sister, Patsy Hooper. In its harmlessness
analysis, the Arizona Supreme Court entirely ignored the
evidence from Davis and Hooper.
Davis reported, based on interviews with Sansing and his
family members, that Sansing began using marijuana in fifth
grade and struggled with drug addiction throughout his adult
life. At the time of Ms. Calabrese’s murder, Sansing and
Kara “had been on a four day binge of crack cocaine use,”
during which time they had spent $750 on crack cocaine.
Davis also quoted an article stating that heavy cocaine use
can produce paranoia and aggression. Under Neder, the
Arizona Supreme Court should have included this record
evidence in its Chapman/sufficiency-of-evidence review.
See 527 U.S. at 19.
Although the Arizona Supreme Court discussed Kara’s
testimony about Sansing’s drug use on the day of the murder,
the court weighed and discounted her testimony, contrary to
Neder. Sansing II, 77 P.3d at 37–38. In the hours before the
murder, Sansing smoked crack cocaine at least twice—first
by himself, while Kara was at work, and later with Kara,
about 40 minutes before Ms. Calabrese arrived at the
Sansing home. State v. Sansing (Sansing I), 26 P.3d 1118,
1123 (2001). Kara testified that when she spoke with
Sansing over the phone before coming home from work, he
sounded “hyped up” and “[a]nxious.” When she got home,
she could “tell he was nervous” and that he had been using
56 SANSING V. RYAN
cocaine. He was “pacing” and acting “cold.” He did not give
her a kiss or a hug as he normally did.
Kara testified that Sansing’s demeanor while he was
assaulting Ms. Calabrese was different from anything she
had witnessed in him before. She said: “He was acting cold.
It wasn’t my husband. It wasn’t his normal. Even though he
has smoked crack before, he wouldn’t act the way he did that
day.” Kara elaborated that Sansing was acting like “he
wasn’t there. It’s like he was in another world. . . . It wasn’t
my husband.”
The Arizona Supreme Court determined that Kara’s
testimony was “insufficient to establish, by a preponderance
of the evidence, that Sansing’s capacity to control his
behavior was significantly impaired.” Sansing II, 77 P.3d at
37. In so holding, the court reasoned, first, that “Kara did not
quantify how much crack Sansing used.” Id. But Sansing did
present evidence relating to the quantity of crack cocaine he
used: the evidence from Davis that Sansing and Kara had
spent $750 on crack cocaine in the four days leading up to
the murder. Again, the Arizona Supreme Court improperly
ignored that evidence.
Second, the court held that “no reasonable jury would
conclude that Kara’s testimony that Sansing was not acting
himself was sufficient to establish that his capacity was
significantly impaired.” Id. (emphasis added). The court
quoted a sentence from State v. Jordan, 614 P.2d 825, 832
(Ariz. 1980), rejecting testimony that was “inexact as to
defendant’s level of intoxication at the time of the crime”
and lacked a “description of how defendant’s intoxication
affected his conduct.” Sansing II, 77 P.3d at 37–38. Again,
the question the Arizona Supreme Court was required to ask
was not whether, in its view, a jury would conclude that
Sansing’s capacity was significantly impaired, but whether
SANSING V. RYAN 57
a jury could so conclude. In weighing and discounting
Kara’s testimony, the court usurped the role of the absent
jury, whose province it was to make credibility and
evidence-weighing determinations. See Anderson, 477 U.S.
at 255.
Hooper testified that Sansing drove to her house the day
after the murder and confessed to her. Hooper called their
father, who called the police. Sansing waited with Hooper
for the police to arrive and surrendered quietly. Hooper
testified that Sansing looked like he “hadn’t slept for days”
and that he “had dark circles under his eyes.” Hooper
believed that Sansing had been “taken by the drugs he had
been doing,” and that the drugs contributed “a lot” to his
murder of Ms. Calabrese. Again, the Arizona Supreme Court
should have considered this record evidence as part of its
sufficiency-of-evidence review. See Neder, 527 U.S. at 19.
3. In addition to improperly ignoring and discounting
the evidence of drug use that Sansing presented, the Arizona
Supreme Court concluded that Sansing’s “deliberate
actions” and “steps . . . to avoid detection” “refute[d]” and
“negate[d]” his impairment claim. Sansing II, 77 P.3d at 38.
In so holding, the state court put emphasis on the weight of
the prosecution’s evidence, and so failed to view the
evidence in the light most favorable to Sansing, contrary to
Neder.
The evidence that Sansing planned to rob the person who
delivered food did not preclude a rational jury from finding
significant impairment, even if it could support the opposite
conclusion. Viewed in the light most favorable to Sansing,
that evidence showed that Sansing planned to commit a
robbery, not a murder. Sansing arranged for the food
delivery while Kara was at work, and when she returned
home, he smoked more crack cocaine and told Kara about
58 SANSING V. RYAN
his plan to rob the delivery person. Sansing I, 26 P.3d
at 1123. A rational jury could have concluded that Sansing’s
impairment increased after he made the robbery plan, and
that his impairment played a significant role in the extreme
escalation of events from a planned robbery to a murder.
Finally, the actions Sansing took to avoid detection did
not preclude a finding of significant impairment. Viewed in
the light most favorable to Sansing, those actions were minor
and would have been obviously ineffective to a normally
functioning person. Sansing moved Ms. Calabrese’s truck,
but only a short distance from his house. Id. at 1123. He
“hid” her body by placing it under some debris in his own
backyard, where it was visible from the alley. Id.In Murdaugh, we addressed a defendant’s similarly
ineffectual attempts to avoid detection—first sprinkling
horse manure over the victim’s body, before dismembering
it many hours later. We concluded that “a reasonable jury
might not have found that [defendant’s] actions to cover up
the murder demonstrated any kind of sober sophistication.”
724 F.3d at 1120. Similarly, here, a reasonable jury might
not have found Sansing’s efforts to avoid detection “to be
inconsistent with a finding that [he] was ‘significantly, but
only partially, impaired’ at the time of the offense.” Id.
(quoting Gretzler, 659 P.2d at 17). For example, viewed in
the light most favorable to Sansing, a jury could conclude
that Sansing’s ability to drive a truck a short distance did not
defeat his contention that he was significantly, but only
partially, impaired. Additionally, a reasonable jury might
have interpreted Sansing’s confession to Hooper the next
day, which the Arizona Supreme Court improperly ignored,
as evidence that his capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
SANSING V. RYAN 59
of law did not fully return until after he had regained a
measure of sobriety.
Because the Arizona Supreme Court failed to conduct a
sufficiency review under Neder, its harmlessness
determination was “contrary to . . . clearly established
Federal law,” and the panel majority errs in holding
otherwise. 28 U.S.C. § 2254(d)(1); see Amado v. Gonzalez,
758 F.3d 1119, 1136 (9th Cir. 2014) (“A decision is
‘contrary to’ Supreme Court precedent ‘if it applies a rule
that contradicts the governing law set forth in [the Supreme
Court’s] cases . . . .’” (quoting Early v. Packer, 537 U.S. 3,
8 (2002)) (alteration in original)). As discussed above,
however, under current controlling law, it is not enough for
a habeas petitioner to satisfy the AEDPA/Chapman test; the
petitioner must still meet the Brecht standard before relief
can be granted. See supra pp. 49–50. I turn now to the Brecht
inquiry.
III.
Under Brecht, “habeas relief must be granted” if the Ring
error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623(quoting Kotteakos, 328 U.S. at 765).
[I]f one cannot say, with fair assurance, after
pondering all that happened without stripping
the erroneous action from the whole, that the
judgment was not substantially swayed by
the error, it is impossible to conclude that
substantial rights were not affected. The
inquiry cannot be merely whether there was
enough to support the result, apart from the
phase affected by the error. It is rather, even
60 SANSING V. RYAN
so, whether the error itself had substantial
influence.
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011)
(quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946)) (alteration in original).
Here, of course, “the underlying error is the absence of a
jury itself.” Murdaugh, 724 F.3d at 1118. Accordingly, as
we held in analyzing whether Ring error was prejudicial in
Murdaugh, “the Brecht inquiry is whether the absence of a
jury as factfinder at the penalty stage ‘substantially and
injuriously’ affected or influenced the outcome.” Id.
(quoting Merolillo, 663 F.3d at 454). To answer that
question, we ask “whether a rational jury could have found”
that Sansing had established the (G)(1) mitigating factor. Id.(emphasis added). If so, “it is impossible to conclude that
substantial rights were not affected,” Merolillo, 663 F.3d at
454 (quoting Kotteakos, 328 U.S. at 765), as we have no
actual jury verdict against which to evaluate whether the
verdict would have varied absent a particular trial error. In
these circumstances, therefore, the Brecht inquiry is the
same one the Arizona Supreme Court should have applied in
its harmlessness review: “whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element.” Neder, 527 U.S. at 19(emphasis added).
Again, the evidence in the record, when properly viewed
in the light most favorable to Sansing, was sufficient to allow
a rational jury to find that that Sansing had proved, by a
preponderance of the evidence, that his capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was “significantly, but
only partially, impaired,” Gretzler, 659 P.2d at 17—even if
SANSING V. RYAN 61
a jury might not have been likely to make such a finding, see
Schlup, 513 U.S. at 330. Sansing presented testimony from
Kara, who was present at the time of the crime; who knew
him well, having been married to him for fourteen years; and
who was familiar with both his use of crack cocaine and the
effects that drug usually had on him. Kara testified that
Sansing was high on crack cocaine when he assaulted Ms.
Calabrese, that immediately beforehand he was anxious and
uncharacteristically cold, that his demeanor was different
from anything she had witnessed before, and that he seemed
to be in another world. A jury could reasonably conclude
based on Kara’s testimony, along with the uncontested
evidence of Sansing’s long history of drug abuse starting in
childhood, his recent struggle with addiction, and his and
Kara’s consumption of $750 worth of crack cocaine in the
days leading up to the murder, that Sansing had
demonstrated significant impairment. Cf. State v. Hill,
174 Ariz. 313, 330 & n.7 (1993) (holding that there was
sufficient evidence to support the trial court’s finding that
the (G)(1) mitigating factor was established, where the trial
court found that the defendant was “an alcoholic, that [he
was] most likely under the influence of alcoholic beverages
to some extent at the time of the murder, [and] that [he was]
a product of an alcoholic family”).
Because Sansing was deprived of his constitutional right
to have a jury determine the facts on which his sentence
depended, we cannot know what a jury would have done.
“That a rational jury might have found that the evidence
established the (G)(1) mitigating factor is sufficient to
establish prejudice under Brecht.” Murdaugh, 724 F.3d
at 1120.
Had a jury found that Sansing had proven the (G)(1)
mitigating factor, a reasonable sentencing judge could have
62 SANSING V. RYAN
weighed the aggravating and mitigating circumstances
differently and concluded that the latter were “sufficiently
substantial to call for leniency.” Ariz. Rev. Stat. § 13-703(E)
(1999). Or the Arizona Supreme Court could reasonably
have so concluded when it conducted its required
independent reweighing of aggravating and mitigating
circumstances. See Sansing I, 26 P.3d at 1131; cf. Strickland
v. Washington, 466 U.S. 668, 695 (1984) (holding, in the
context of an ineffective-assistance-of-counsel claim, that
the prejudice inquiry asks “whether there is a reasonable
probability that, absent the errors, the sentencer—including
an appellate court, to the extent it independently reweighs
the evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death,” and further noting that the prejudice inquiry is
objective and does “not depend on the idiosyncracies [sic] of
the particular decisionmaker”). The deprivation of the right
to a jury determination therefore had a “substantial and
injurious effect” on Sansing’s sentence. Brecht, 507 U.S. at
623 (quoting Kotteakos, 328 U.S. at 765).
Having concluded that Sansing has satisfied both the
AEDPA/Chapman and Brecht tests for prejudicial error, I
would grant his petition for a writ of habeas corpus as to
Claim 1.