McKinney v. Arizona ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
McKINNEY v. ARIZONA
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 18–1109. Argued December 11, 2019—Decided February 25, 2020
An Arizona jury convicted petitioner James McKinney of two counts of
first-degree murder. The trial judge found aggravating circumstances
for both murders, weighed the aggravating and mitigating circum-
stances, and sentenced McKinney to death. Nearly 20 years later, the
Ninth Circuit held on habeas review that the Arizona courts violated
Eddings v. Oklahoma, 455 U.S. 104, by failing to properly consider as
relevant mitigating evidence McKinney’s posttraumatic stress disor-
der. McKinney’s case then returned to the Arizona Supreme Court.
McKinney argued that he was entitled to a jury resentencing, but the
Arizona Supreme Court itself reweighed the aggravating and mitigat-
ing circumstances, as permitted by Clemons v. Mississippi, 494 U.S.
738, and upheld both death sentences.
Held: A Clemons reweighing is a permissible remedy for an Eddings er-
ror, and when an Eddings error is found on collateral review, a state
appellate court may conduct a Clemons reweighing on collateral re-
view. McKinney’s argument that a jury must resentence him does not
square with Clemons, where the Court held that a reweighing of the
aggravating and mitigating evidence may be conducted by an appellate
court. 494 U.S., at 741. Because Clemons involved an improperly con-
sidered aggravating circumstance, McKinney maintains that it is in-
apposite here, where the case involves an improperly ignored mitigat-
ing circumstance. Clemons, however, did not depend on any unique
effect of aggravators as distinct from mitigators. For purposes of ap-
pellate reweighing, there is no meaningful difference between sub-
tracting an aggravator from one side of the scale and adding a mitiga-
tor to the other side. McKinney also argues that Clemons is no longer
good law in the wake of Ring v. Arizona, 536 U.S. 584, and Hurst v.
Florida, 577 U. S. ___, where the Court held that a jury must find the
aggravating circumstance that makes the defendant death eligible.
2 MCKINNEY v. ARIZONA
Syllabus
But that does not mean that a jury is constitutionally required to weigh
the aggravating and mitigating circumstances or to make the ultimate
sentencing decision within the relevant sentencing range. See Ap-
prendi v. New Jersey, 530 U.S. 466, 481. McKinney notes that the
Arizona trial court, not the jury, made the initial aggravating circum-
stance finding that made him eligible for the death penalty. But
McKinney’s case became final on direct review long before Ring and
Hurst, which do not apply retroactively on collateral review, see
Schriro v. Summerlin, 542 U.S. 348, 358, and the Arizona Supreme
Court’s 2018 decision reweighing the aggravators and mitigators did
not constitute a reopening of direct review. Pp. 2–7.
245 Ariz. 225, 426 P.3d 1204, affirmed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. GINSBURG, J., filed
a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1109
_________________
JAMES ERIN MCKINNEY, PETITIONER v. ARIZONA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
ARIZONA
[February 25, 2020]
JUSTICE KAVANAUGH delivered the opinion of the Court.
Over a 4-week span in early 1991, James McKinney and
his half brother, Charles Hedlund, burglarized five resi-
dences in the Phoenix, Arizona, area. During one of the
burglaries, McKinney and Hedlund beat and repeatedly
stabbed Christine Mertens. McKinney then shot Mertens
in the back of the head, fatally wounding her. In another
burglary, McKinney and Hedlund killed Jim McClain by
shooting him in the back of the head with a sawed-off rifle.
In 1992, an Arizona jury convicted McKinney of two
counts of first-degree murder. Under this Court’s prece-
dents, a defendant convicted of murder is eligible for a
death sentence if at least one aggravating circumstance is
found. See Tuilaepa v. California, 512 U.S. 967 (1994);
Zant v. Stephens, 462 U.S. 862 (1983); Gregg v. Georgia,
428 U.S. 153 (1976). McKinney’s trial judge found aggra-
vating circumstances for both murders. For the Mertens
murder, the judge found that McKinney committed the
murder for pecuniary gain and that McKinney killed
Mertens in an especially heinous, cruel, or depraved man-
ner. For the McClain murder, the judge found that McKin-
ney committed the murder for pecuniary gain and that
2 MCKINNEY v. ARIZONA
Opinion of the Court
McKinney had been convicted of another offense with a po-
tential sentence of life imprisonment or death (the Mertens
murder).
The trial judge then weighed the aggravating and miti-
gating circumstances and sentenced McKinney to death for
both murders. In 1996, the Arizona Supreme Court af-
firmed McKinney’s death sentences.
Nearly 20 years later, on federal habeas corpus review,
an en banc panel of the U. S. Court of Appeals for the Ninth
Circuit decided by a 6 to 5 vote that, in sentencing McKin-
ney, the Arizona courts had failed to properly consider
McKinney’s posttraumatic stress disorder (PTSD) and had
thereby run afoul of this Court’s decision in Eddings v. Ok-
lahoma, 455 U.S. 104 (1982). In Eddings, this Court held
that a capital sentencer may not refuse as a matter of law
to consider relevant mitigating evidence. Id., at 113–114.
McKinney’s case then returned to the Arizona Supreme
Court. In that court, McKinney argued that he was entitled
to resentencing by a jury. By contrast, the State asked that
the Arizona Supreme Court itself conduct a reweighing of
the aggravating and mitigating circumstances, as permit-
ted by Clemons v. Mississippi, 494 U.S. 738 (1990). The
Arizona Supreme Court agreed with the State. The court
itself reviewed the evidence in the record and reweighed the
relevant aggravating and mitigating circumstances, includ-
ing McKinney’s PTSD. The court upheld both death sen-
tences. 245 Ariz. 225, 426 P.3d 1204 (2018).
McKinney petitioned for certiorari in this Court. Because
of the importance of the case to capital sentencing in Ari-
zona, we granted certiorari. 587 U. S. ___ (2019).
The issue in this case is narrow. McKinney contends that
after the Ninth Circuit identified an Eddings error, the Ar-
izona Supreme Court could not itself reweigh the aggravat-
ing and mitigating circumstances. Rather, according to
McKinney, a jury must resentence him.
McKinney’s argument does not square with this Court’s
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
decision in Clemons. In Clemons, a Mississippi jury sen-
tenced the defendant to death based in part on two aggra-
vating circumstances. After the Mississippi Supreme Court
determined that one of the aggravators was unconstitution-
ally vague, the defendant argued that he was entitled to re-
sentencing before a jury so that the jury could properly
weigh the permissible aggravating and mitigating evi-
dence. This Court disagreed. The Court concluded that the
Mississippi Supreme Court could itself reweigh the permis-
sible aggravating and mitigating evidence. 494 U.S., at
745–750. This Court stated that “the Federal Constitution
does not prevent a state appellate court from upholding a
death sentence that is based in part on an invalid or im-
properly defined aggravating circumstance either by re-
weighing of the aggravating and mitigating evidence or by
harmless-error review.” Id., at 741. The Court explained
that a Clemons reweighing is not a resentencing but instead
is akin to harmless-error review in that both may be con-
ducted by an appellate court.
McKinney contends that Clemons does not apply here.
He raises two basic arguments.
First, McKinney maintains that Clemons involved an im-
properly considered aggravating circumstance, whereas his
case involves what the Ninth Circuit said was an improp-
erly ignored mitigating circumstance. But the Court’s anal-
ysis in Clemons hinged on its assessment of appellate
courts’ ability to weigh aggravating and mitigating evi-
dence, not on any unique effect of aggravators as distinct
from mitigators. After noting that the “primary concern in
the Eighth Amendment context has been that the sentenc-
ing decision be based on the facts and circumstances of the
defendant, his background, and his crime,” the Court ex-
plained that nothing “inherent in the process of appellate
reweighing is inconsistent” with that objective. Id., at 748.
Indeed, the Court explicitly rejected the argument that “ap-
pellate courts are unable to fully consider and give effect to
4 MCKINNEY v. ARIZONA
Opinion of the Court
the mitigating evidence presented by defendants at the sen-
tencing phase in a capital case.” Ibid. And the Court con-
cluded that a state appellate court may uphold the death
sentence after a “reweighing of the aggravating and miti-
gating evidence.” Id., at 741.
In deciding whether a particular defendant warrants a
death sentence in light of the mix of aggravating and miti-
gating circumstances, there is no meaningful difference for
purposes of appellate reweighing between subtracting an
aggravator from one side of the scale and adding a mitigator
to the other side. Both involve weighing, and the Court’s
decision in Clemons ruled that appellate tribunals may per-
form a “reweighing of the aggravating and mitigating evi-
dence.” Ibid. In short, a Clemons reweighing is a permis-
sible remedy for an Eddings error.
Second, the Court decided Clemons back in 1990, and
McKinney argues that Clemons is no longer good law in the
wake of this Court’s decisions in Ring v. Arizona, 536 U.S.
584 (2002), and Hurst v. Florida, 577 U. S. ___ (2016). Ac-
cording to McKinney, appellate courts may no longer re-
weigh aggravating and mitigating circumstances in deter-
mining whether to uphold a death sentence. McKinney is
incorrect.
In Ring, this Court held that capital defendants “are en-
titled to a jury determination of any fact on which the leg-
islature conditions an increase in their maximum punish-
ment”—in particular, the finding of an aggravating
circumstance. 536 U.S., at 589. In Hurst, the Court ap-
plied Ring and decided that Florida’s capital sentencing
scheme impermissibly allowed “a sentencing judge to find
an aggravating circumstance, independent of a jury’s fact-
finding, that is necessary for imposition of the death pen-
alty.” 577 U. S., at ___ (slip op., at 9).
Under Ring and Hurst, a jury must find the aggravating
circumstance that makes the defendant death eligible. But
importantly, in a capital sentencing proceeding just as in
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
an ordinary sentencing proceeding, a jury (as opposed to a
judge) is not constitutionally required to weigh the aggra-
vating and mitigating circumstances or to make the ulti-
mate sentencing decision within the relevant sentencing
range. In Apprendi v. New Jersey, 530 U.S. 466 (2000), this
Court carefully avoided any suggestion that “it is impermis-
sible for judges to exercise discretion—taking into consider-
ation various factors relating both to offense and offender—
in imposing a judgment within the range prescribed by stat-
ute.” Id., at 481. And in the death penalty context, as Jus-
tice Scalia, joined by JUSTICE THOMAS, explained in his con-
currence in Ring, the decision in Ring “has nothing to do
with jury sentencing. What today’s decision says is that the
jury must find the existence of the fact that an aggravating
factor existed.” 536 U.S., at 612; see also Kansas v. Carr,
577 U. S. ___, ___–___ (2016) (slip op., at 9–11). Therefore,
as Justice Scalia explained, the “States that leave the ulti-
mate life-or-death decision to the judge may continue to do
so.” Ring, 536 U.S., at 612.
In short, Ring and Hurst did not require jury weighing of
aggravating and mitigating circumstances, and Ring and
Hurst did not overrule Clemons so as to prohibit appellate
reweighing of aggravating and mitigating circumstances.
In addition to those two arguments about Clemons,
McKinney advances an additional argument based on Ring
and Hurst. This argument focuses not on the weighing of
aggravators and mitigators, but rather on the Arizona trial
court’s initial 1993 finding of the aggravating circum-
stances that made McKinney eligible for the death penalty.
McKinney points out that a jury did not find the aggravat-
ing circumstances, as is now required by Ring and Hurst.
The hurdle is that McKinney’s case became final on direct
review in 1996, long before Ring and Hurst. Ring and Hurst
do not apply retroactively on collateral review. See Schriro
v. Summerlin, 542 U.S. 348, 358 (2004). Because this case
comes to us on state collateral review, Ring and Hurst do
6 MCKINNEY v. ARIZONA
Opinion of the Court
not apply.
McKinney says, however, that this case has a twist. He
asserts that the Arizona Supreme Court’s 2018 decision re-
weighing the aggravators and mitigators constituted a re-
opening of direct review. Because this case (as McKinney
sees it) is again on direct review, McKinney argues that he
should receive the benefit of Ring and Hurst—namely, a
jury resentencing with a jury determination of aggravating
circumstances.
But the premise of that argument is wrong because the
Arizona Supreme Court’s reweighing of the aggravating
and mitigating circumstances occurred on collateral review,
not direct review. In conducting the reweighing, the Ari-
zona Supreme Court explained that it was conducting an
independent review in a collateral proceeding. The court
cited its prior decision in State v. Styers, 227 Ariz. 186, 254
P.3d 1132 (2011), which concluded that Arizona could con-
duct such an independent review in a collateral proceeding.
See also Ariz. Rev. Stat. Ann. §13–755 (2010); State v. Hed-
lund, 245 Ariz. 467, 470–471, 431 P.3d 181, 184–185
(2018). Under these circumstances, we may not second-
guess the Arizona Supreme Court’s characterization of
state law. See Mullaney v. Wilbur, 421 U.S. 684, 691
(1975); see also Jimenez v. Quarterman, 555 U.S. 113, 120,
n. 4 (2009); Styers v. Ryan, 811 F.3d 292, 297, n. 5 (CA9
2015). As a matter of state law, the reweighing proceeding
in McKinney’s case occurred on collateral review.
McKinney responds that the state label of collateral re-
view cannot control the finality question; that a Clemons
reweighing is a sentencing proceeding; and that a Clemons
reweighing therefore may occur only on direct review (or on
reopening of direct review). But Clemons itself, over a vig-
orous dissent, stated that an appellate reweighing is not a
sentencing proceeding that must be conducted by a jury.
See 494 U.S., at 741, 744–755. The appellate reweighing
is akin to harmless-error review. Courts routinely conduct
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
harmless-error review in collateral proceedings. Cf., e.g.,
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). There is
no good reason—and McKinney supplies none—why state
courts may not likewise conduct a Clemons reweighing on
collateral review. As relevant here, when an Eddings error
is found on collateral review, a state court may conduct a
Clemons reweighing on collateral review.* Here, therefore,
the Arizona Supreme Court permissibly conducted a
Clemons reweighing on collateral review.
* * *
This Court’s precedents establish that state appellate
courts may conduct a Clemons reweighing of aggravating
and mitigating circumstances, and may do so in collateral
proceedings as appropriate and provided under state law.
We affirm the judgment of the Arizona Supreme Court.
It is so ordered.
——————
*Moreover, the District Court’s conditional writ in this case merely re-
quired Arizona to correct a purported Eddings error. As we have ex-
plained, an Eddings error may be remedied on appeal or on collateral
review. Our holding here does not suggest that a State, by use of a col-
lateral label, may conduct a new trial proceeding in violation of current
constitutional standards.
Cite as: 589 U. S. ____ (2020) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1109
_________________
JAMES ERIN MCKINNEY, PETITIONER v. ARIZONA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
ARIZONA
[February 25, 2020]
JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Petitioner James Erin McKinney, convicted in Arizona of
two counts of first-degree murder, was sentenced to death
in 1993. At that time, Arizona assigned capital sentencing
to trial judges. To impose a death sentence, the judge had
to find at least one aggravating circumstance and “no miti-
gating circumstances sufficiently substantial to call for le-
niency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993). In 2002,
in Ring v. Arizona, 536 U.S. 584 (2002), this Court held
Arizona’s capital sentencing regime unconstitutional. The
“aggravating factors” that render a defendant eligible for
capital punishment in Arizona, the Court reasoned, “oper-
ate as ‘the functional equivalent of an element of a greater
offense.’ ” Id., at 609 (quoting Apprendi v. New Jersey, 530
U.S. 466, 494, n. 19 (2000)). “[T]he Sixth Amendment
[therefore] requires that [such aggravating factors] be
found by a jury.” Ibid.; see Hurst v. Florida, 577 U. S. ___,
___ (2016) (slip op., at 1) (“The Sixth Amendment requires
a jury, not a judge, to find each fact necessary to impose a
sentence of death.”). Here in dispute, does Ring apply to
McKinney’s case?1 If it does, then McKinney’s death sen-
tences—imposed based on aggravating factors found by a
——————
1 McKinney’s primary argument rests on Ring. See Brief for Petitioner
19–33. Curiously, the Court devotes most of its opinion, ante, at 2–5, to
2 MCKINNEY v. ARIZONA
GINSBURG, J., dissenting
judge, not a jury—are unlawful.
The Constitution, this Court has determined, requires
the application of new rules of constitutional law to cases
on direct review. Griffith v. Kentucky, 479 U.S. 314, 322–
323 (1987). Such rules, however, do not apply retroactively
to cases on collateral review unless they fall within one of
two exceptions. Teague v. Lane, 489 U.S. 288, 310 (1989)
(plurality opinion).2 This Court has already held that Ring
does not fall within those exceptions. See Schriro v. Sum-
merlin, 542 U.S. 348, 358 (2004). Thus, the pivotal ques-
tion: Is McKinney’s case currently on direct review, in
which case Ring applies, or on collateral review, in which
case Ring does not apply? 3 I would rank the Arizona Su-
preme Court’s proceeding now before this Court for review
as direct in character. I would therefore hold McKinney’s
death sentences unconstitutional under Ring, and reverse
the judgment of the Arizona Supreme Court.
I
Upon the imposition of a death sentence in Arizona, a de-
fendant’s appeal bypasses the intermediate appellate court
——————
McKinney’s alternative argument: that Eddings error cannot be cor-
rected by an appellate court. Brief for Petitioner 33–47 (discussing Ed-
dings v. Oklahoma, 455 U.S. 104 (1982)). Because I conclude that Ring
is dispositive here, I do not reach McKinney’s fallback argument.
2 “[S]ubstantive” rules—“rules according constitutional protection to
an actor’s primary conduct” or “placing a certain class of individuals be-
yond the State’s power to punish” in a particular manner—apply on col-
lateral review. Penry v. Lynaugh, 492 U.S. 302, 329–330 (1989). The
same is true of “watershed rules of criminal procedure.” Teague, 489
U.S., at 311.
3 Direct review immediately challenges a conviction; collateral review,
occurring after a completed appeal, “is secondary and limited.” Brecht v.
Abrahamson, 507 U.S. 619, 633 (1993) (internal quotation marks
omitted).
Cite as: 589 U. S. ____ (2020) 3
GINSBURG, J., dissenting
and moves directly from the trial court to the Arizona Su-
preme Court. See Ariz. Rev. Stat. Ann. §13–4031 (2010).4
The statute governing such an appeal, §13–755, instructs:
“The supreme court shall review all death sentences. On
review, the supreme court shall independently review the
trial court’s findings of aggravation and mitigation and the
propriety of the death sentence.” §13–755(A).5 Independ-
ent review under §13–755 entails “review[ing] the entire
record” without deference to the factfinder, to determine,
de novo, “whether a capital sentence is not only legally cor-
rect, but also appropriate.” State v. Roseberry, 237 Ariz.
507, 509–510, 353 P.3d 847, 849–850 (2015). In 1996, the
Arizona Supreme Court reviewed McKinney’s sentences
under the foregoing scheme and affirmed the trial court’s
dispositions.
McKinney then sought a writ of habeas corpus in federal
court. In 2015, the en banc United States Court of Appeals
for the Ninth Circuit concluded that the Arizona Supreme
Court, when it independently reviewed McKinney’s sen-
tences in 1996, committed constitutional error. Specifi-
cally, the state court, in violation of Eddings v. Oklahoma,
455 U.S. 104, 113–114 (1982),6 refused to consider as miti-
gating evidence the posttraumatic stress disorder (PTSD)
McKinney suffered as a result of his horrific childhood. See
——————
4 “Arizona’s capital sentencing statutes were reorganized and renum-
bered in 2008.” State v. Chappell, 225 Ariz. 229, 234, n. 3, 236 P.3d
1176, 1181, n. 3 (2010). This opinion cites a statute’s current version
when materially identical to the text in effect at the relevant time.
5 Section 13–755 remains in effect for crimes committed before August
1, 2002. State v. Morris, 215 Ariz. 324, 340, 160 P.3d 203, 219 (2007).
6 In Eddings, the sentencing judge and appellate court found mitigat-
ing evidence about the defendant’s “family history” irrelevant as a mat-
ter of law. 455 U.S., at 113. This Court held: “Just as the State may not
by statute preclude the sentencer from considering any mitigating factor,
neither may the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence.” Id., at 113–114.
4 MCKINNEY v. ARIZONA
GINSBURG, J., dissenting
McKinney v. Ryan, 813 F.3d 798, 804. Reversing the Dis-
trict Court’s judgment denying the writ of habeas corpus,
the Court of Appeals remanded the case “with instructions
to grant the writ with respect to McKinney’s sentence un-
less the state, within a reasonable period, either corrects
the constitutional error in his death sentence or vacates the
sentence and imposes a lesser sentence consistent with
law.” Id., at 827. This Court denied the State’s petition for
certiorari. Ryan v. McKinney, 580 U. S. ___ (2016).
The State thereupon asked the Arizona Supreme Court
to “conduct a new independent review of McKinney’s death
sentence” “to cure any error in [the prior] independent re-
view.” App. 389. Granting the State’s motion in 2018, Ari-
zona’s highest court again did as the independent-review
statute instructs. See supra, at 3. Specifically, the court
first determined that “no reasonable doubt” existed “as to
the aggravating circumstances found by the trial court.”
245 Ariz. 225, 227, 426 P.3d 1204, 1206 (2018). It then
noted that “McKinney [had] proved several mitigating cir-
cumstances,” including “PTSD . . . caused by the abuse and
trauma he experienced as a child.” Ibid. “Given the aggra-
vating circumstances,” however, the court “conclude[d] that
McKinney’s mitigating evidence [wa]s not sufficiently sub-
stantial to warrant leniency.” Ibid. It therefore “affirm[ed]
McKinney’s death sentences” for a second time. Id., at 229,
426 P. 3d, at 1208.
II
A
Beyond doubt, the Arizona Supreme Court engaged in di-
rect review in 1996. A defendant’s first opportunity to ap-
peal his conviction and sentence is the archetype of direct
review. See Brecht v. Abrahamson, 507 U.S. 619, 633
(1993) (“Direct review is the principal avenue for challeng-
ing a conviction.”).
Cite as: 589 U. S. ____ (2020) 5
GINSBURG, J., dissenting
The Arizona Supreme Court’s 2018 proceeding was es-
sentially a replay of the initial direct review proceeding.
The State’s request for “a new independent review,” App.
389 (emphasis added), asked the Arizona Supreme Court to
resume and redo direct review, this time in accord with Ed-
dings. See Webster’s Third New International Dictionary
1522 (2002) (“new”: “beginning or appearing as the recur-
rence, resumption, or repetition of a previous act or thing”).
The Arizona Supreme Court proceeded accordingly. That
court retained for its “new independent review” the docket
number earlier assigned to its initial review, App. 1, 6–11,
and docket entries show that the original 1996 appeal was
“Reinstated,” id., at 1. In its 2018 review, the Arizona Su-
preme Court “examine[d] ‘the trial court’s findings of aggra-
vation and mitigation and the propriety of the death sen-
tence’ ” afresh, treating that court’s 1996 decision as though
it never issued. 245 Ariz., at 227, 426 P. 3d, at 1206 (quot-
ing §13–755). See also supra, at 4.
Renewal of direct review cannot sensibly be characterized
as anything other than direct review. The Arizona Su-
preme Court’s 2018 proceeding retread ground traversed in
1996; the two proceedings differed only in that the court’s
2018 review was free of Eddings error. If, as the State does
not contest, the court’s 1996 review ranked as review direct
in character, so, too, did its 2018 do-over.7
B
The State urges that the Arizona Supreme Court’s deci-
sion in State v. Styers, 227 Ariz. 186, 254 P.3d 1132 (2011),
——————
7 Further, the reason new rules do not apply on collateral review—
namely, that “considerations of finality” weigh heavily when “trials and
appeals conformed to then-existing constitutional standards,” Teague v.
Lane, 489 U.S. 288, 309–310 (1989) (plurality opinion)—has little pur-
chase here, where the replay of direct review was occasioned by consti-
tutional error in the first appeal. See McKinney v. Ryan, 813 F.3d 798,
804, 822–823 (CA9 2015).
6 MCKINNEY v. ARIZONA
GINSBURG, J., dissenting
compels a different classification of that court’s 2018 pro-
ceeding. In Styers, as here, the Arizona Supreme Court con-
ducted a new independent review to correct Eddings error
in its previous decision affirming the defendant’s death sen-
tence. 227 Ariz., at 187, 254 P. 3d, at 1133. The Arizona
Supreme Court regarded its second look in Styers as a col-
lateral review for retroactivity purposes, id., at 187–188,
and n. 1, 254 P.3d, at 1133–1134, and n. 1, and followed
suit in its 2018 renewed examination in this case, 245 Ariz.,
at 226–227, 426 P. 3d, at 1205–1206. This Court, the State
maintains, is bound by that state-law classification. Brief
for Respondent 22–25. The State’s argument should be un-
availing. Whether the Constitution requires the applica-
tion of law now in force is a question of federal constitu-
tional law, not an issue subject to state governance. See
Griffith, 479 U.S., at 322–323.
C
The Court does not today hold that the classification a
state supreme court assigns to a proceeding is inevitably
dispositive of a retroactivity question of the kind this case
presents. See ante, at 7, n. *. Instead, the Court looks first
to the State’s classification of a proceeding, and then asks
whether the character of the proceeding warrants the clas-
sification. See ante, at 6–7 (review was “akin to harmless-
error review,” which may be conducted on collateral
review).
Accepting “collateral” as a fit description of the 2018 Ari-
zona Supreme Court review proceeding, the Court relies on
Clemons v. Mississippi, a decision holding that appellate
courts can reweigh aggravating and mitigating factors as a
form of “harmless-error analysis” when the factfinder “re-
lied in part on an invalid aggravating circumstance.” 494
U.S. 738, 744, 752 (1990). Here, however, the Ninth Circuit
engaged in harmless-error review when that court evalu-
ated McKinney’s federal habeas petition—and found the
Cite as: 589 U. S. ____ (2020) 7
GINSBURG, J., dissenting
Arizona Supreme Court’s 1996 Eddings error harmful.
McKinney, 813 F.3d, at 822–824. The State accordingly
asked the Arizona Supreme Court “to cure [that] error” by
conducting a new independent review proceeding. App. 389
(emphasis added). In determining de novo in 2018 whether
McKinney’s death sentences were “not only legally correct,
but also appropriate,” Roseberry, 237 Ariz., at 509, 353
P. 3d, at 849, the Arizona Supreme Court was not conduct-
ing garden-variety harmless-error review of a lower court
decision; it was rerunning direct review to correct its own
prior harmful error.
* * *
Dissenting in Styers, then-Justice Hurwitz explained:
“[I]ndependent review is the paradigm of direct re-
view—we determine, de novo, whether the trial court,
on the facts before it, properly sentenced the defendant
to death. Thus, what the State sought in this case—
and what the Court has granted—is a new direct re-
view of the death sentence, designed to obviate a con-
stitutional error occurring in the original appeal.” 227
Ariz., at 191, 254 P. 3d, at 1137 (internal quotation
marks omitted).
Exactly right. Because Ring controls post 2002 direct re-
view proceedings, I would apply that precedent here and re-
verse the judgment of the Arizona Supreme Court.