Leroy McGill v. David Shinn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEROY MCGILL, No. 19-99002
Petitioner-Appellant,
D.C. No.
v. 2:12-cv-01149-
JJT
DAVID SHINN, Director, Arizona
Department of Corrections; WALTER
HENSLEY, Warden, Arizona OPINION
Department of Corrections - Eyman
Complex,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted May 20, 2021
Pasadena, California
Filed October 21, 2021
Before: Jay S. Bybee, Milan D. Smith, Jr., and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by
Judge Milan D. Smith, Jr.
2 MCGILL V. SHINN
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s judgment denying
Leroy McGill’s 28 U.S.C. § 2254 habeas petition challenging
his Arizona conviction and death sentence for the murder of
his former housemate, Charles Perez.
The district court granted a certificate of appealability
(COA) as to one claim—ineffective assistance of counsel
arising out of trial counsel’s investigation and presentation of
mitigation evidence at the penalty phase. Of McGill’s
remaining uncertified claims, one—a claim that counsel was
deficient by failing to present mitigating circumstances of
McGill’s prior armed robbery convictions—also arose from
counsel’s performance at the penalty phase. Because the
district court granted a COA with respect to other aspects of
counsel’s performance at the penalty phase, the panel applied
Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), and treated
McGill’s claim with respect to the circumstances of the
armed robbery as if the district court had granted a COA.
McGill argued that this court owes no duty of deference
under the Antiterrorism and Effective Death Penalty Act
(AEDPA) to the post-conviction review (PCR) court’s
decision because, in denying his claim of ineffective
assistance of counsel at the penalty phase, the PCR court
misapplied Strickland v. Washington, 466 U.S. 668 (1984),
under 28 U.S.C. § 2254(d)(1) and unreasonably determined
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCGILL V. SHINN 3
the facts under 28 U.S.C. § 2254(d)(2). Regarding
§ 2254(d)(1), the panel held that the PCR court correctly
identified and reasonably applied clearly established law in
assessing professional norms and evaluating new mitigation
evidence, did not apply an unconstitutional causal-nexus test,
and did not need to consider the cumulative effect of
nonexistent errors. Regarding § 2254(d)(2), the panel held
that the PCR court did not rely on unreasonable
determinations of fact in finding that counsel’s decision not
to call an addictionologist was tactical, that McGill failed to
substantiate his claims of childhood sexual assault, and that
a retained neuropsychologist was a qualified expert witness
upon whom counsel was entitled to rely.
Because the PCR court correctly identified and
reasonably applied clearly established federal law, and its
conclusions did not rely on unreasonable determinations of
facts, the panel reviewed the merits of McGill’s ineffective
assistance of counsel claim under AEDPA’s deferential
standard of review. Applying that standard, the panel
concluded that McGill did not show that counsel performed
deficiently under Strickland at the penalty phase. The panel
wrote that the PCR court reasonably concluded that counsel’s
preparation, investigation, and presentation of mitigation
evidence was thorough and reasoned; that as a whole, the
defense team uncovered a “not insignificant” amount of
mitigation evidence that spanned decades of McGill’s life and
presented a comprehensive picture to the jury; that there is no
evidence that counsel failed to uncover any reasonably
available mitigation records; and that the PCR court’s
findings regarding the adequacy of counsel’s presentation of
the circumstances surrounding McGill’s prior armed robbery
convictions are not unreasonable. Because counsel’s
performance was not objectively deficient in light of the
4 MCGILL V. SHINN
prevailing professional norms, the panel did not reach
McGill’s claims of prejudice.
The panel treated McGill’s briefing of two uncertified
issues as an application for a COA. The panel denied a COA
as to McGill’s uncertified claim that counsel was ineffective
at the guilt phase by failing to retain an expert arson
investigator. The panel granted a COA as to McGill’s claim
that his death sentence violated the Ex Post Facto Clause in
light of Ring v. Arizona, 536 U.S. 584 (2002), in which the
Supreme Court invalidated Ariz. Rev. Stat. § 13-703(C)
(2001), because it required the sentencing judge—not the
jury—“to find an aggravating circumstance necessary for
imposition of the death penalty.” Perez’s murder fell within
the brief period between Ring and Arizona’s amendment of
§ 13-703. Denying relief on the merits, the panel concluded
that the Arizona Supreme Court reasonably applied clearly
established federal law when it determined that Arizona had
only made a procedural change to its death penalty process,
and that change did not violate the Ex Post Facto Clause.
Concurring, Judge Collins wrote separately to note that
Browning’s rule is plainly incorrect, defeats the screening
purpose of 28 U.S.C. § 2253(c)(3), creates unnecessary work
and delay, and should be revisited in the next en banc case in
which that rule has played a role.
Judge M. Smith concurred in part and dissented in part.
He concurred in the decision resolving McGill’s challenges
to the guilt phase of his trial, but he would grant relief with
respect to the penalty phase because he believes sentencing
McGill to death is unconstitutional pursuant to the Ex Post
Facto Clause. He wrote that McGill could not have been
sentenced to death for murder when he committed his crimes
MCGILL V. SHINN 5
because at that time there was no statute implementing the
death penalty in Arizona, and yet because the Arizona
legislature passed a law thirty-eight days later that purported
to allow his execution, McGill now sits on death row.
COUNSEL
Jennifer Y. Garcia (argued) and Sara Chimene-Weiss,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender; Office of the Federal Public Defender,
Phoenix, Arizona; for Petitioner-Appellant.
Erin D. Bennett (argued), Assistant Attorney General; Lacey
Stover Gard, Deputy Solicitor General/Chief of Capital
Litigation; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Respondents-
Appellees.
6 MCGILL V. SHINN
OPINION
BYBEE, Circuit Judge:
Petitioner Leroy McGill was sentenced to death in 2004
for the murder of his former housemate, Charles Perez. The
Arizona Supreme Court affirmed McGill’s conviction and
sentence on direct review, and the state trial court denied
post-conviction relief. McGill now appeals the district
court’s denial of his petition for habeas relief under 28 U.S.C.
§ 2254. The district court granted a certificate of
appealability as to trial counsel’s performance at the penalty
phase of trial but denied a certificate as to McGill’s
remaining claims.
We evaluate McGill’s claims under the Antiterrorism and
Effective Death Penalty Act. Applying that deferential
standard to his certified claim, we conclude that in denying
McGill relief, the state court reasonably applied clearly
established federal law and relied upon reasonable factual
determinations. We further find that McGill has failed to
make a substantial showing that he was denied a
constitutional right to effective assistance of counsel at the
guilt phase and therefore deny a certificate of appealability as
to that claim. We grant a certificate of appealability on
McGill’s ex post facto claim but deny relief on the merits.
Accordingly, we affirm the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
In July 2002, McGill and his girlfriend, Jonna (Angel)
Hardesty, were nearly homeless and temporarily living with
MCGILL V. SHINN 7
a friend in the Sunnyslope area of Phoenix. State v. McGill,
140 P.3d 930, 933 (Ariz. 2006) (en banc) (McGill I). The
couple had recently been ousted from a nearby duplex
apartment owned by Jack Yates after Charles Perez, another
occupant of the duplex, accused McGill and Hardesty of
stealing his shotgun. Id. In the early morning hours of July
13, 2002, McGill walked to the Yates duplex to teach Perez
and Yates “a lesson, that nobody gets away with talking about
[McGill and Hardesty].” Id. (alterations in original). McGill
was confronted by Eddie Keith who lived in the duplex with
his wife and two daughters. McGill warned Keith to get his
family out of the duplex, and Keith obediently fled. Id.at 933–34.
When McGill entered the duplex, he found Perez sitting
on a couch in the living room with his girlfriend, Nova Banta.
Id. at 934. McGill admonished the couple not to “talk behind
other people’s backs,” and before either could respond, he
doused the pair with gasoline and threw a lit match at them.
Id. Flames engulfed Perez and Banta, who ran screaming
from the apartment. Id. First responders transported Perez
and Banta to the hospital with third-degree burns covering
more than seventy-five percent of their bodies. Id. Perez
died the following day. Id. Banta survived, identified McGill
to her nurse as the man who set her on fire, and later
identified McGill at trial. Id. Fortunately, the other residents
of the duplex escaped the blaze without injury.
In March 2003, a Maricopa County grand jury indicted
McGill on charges of first-degree murder for Perez’s death,
attempted first-degree murder for his attack on Banta, and
several counts of arson and endangerment. Id. Shortly
thereafter, the state gave notice of its intent to seek the death
penalty under then-Arizona Revised Statute § 13-703.01(B)
8 MCGILL V. SHINN
(2003).1 The state raised three statutory aggravating factors
under Ariz. Rev. Stat. § 13-703(F) (2003): McGill’s
convictions for armed robbery, a “serious offense” under the
statute; McGill’s knowing creation of a “grave risk of death”
to others during the crime; and McGill’s commission of the
crime in an especially heinous, cruel, or depraved manner.
See id. § 13-703(F)(2), (3), (6).
Attorney Maria Schaffer of the Office of the Legal
Advocate was appointed to represent McGill, and Elizabeth
Todd was appointed as second chair. The defense team also
retained Mitigation Specialist Marianne Brewer and private
investigator Mark Mullavey. Counsel submitted several
expert-witness requests to her supervisor at the Office of the
Legal Advocate, Susan Sherwin, including requests for a
neuropsychologist, addictionologist, and a domestic violence
specialist. Director Sherwin approved the requests for a
neuropsychologist and addictionologist but denied Schaffer’s
request for a domestic violence expert. Ultimately, counsel
retained neuropsychologist Dr. Richard Lanyon and
addictionologist Dr. Mace Beckson. Schaffer had wanted to
retain Dr. Lesley Hoyt-Croft as McGill’s addictionologist, but
Sherwin refused to authorize it because Hoyt-Croft was a
psychologist, not a medical doctor. Only Dr. Lanyon would
testify at trial, however, because Dr. Beckson felt he could
not offer helpful testimony unless McGill accepted
responsibility for his actions, which McGill refused to do.
1
Arizona has since amended and renumbered this portion of its death
penalty statutes. Except where specified, we refer to the statutes as they
were codified at the time of the crime.
MCGILL V. SHINN 9
B. The Trial
McGill was tried in October 2004.2 At the guilt phase, the
state presented evidence that witnesses saw McGill at the
Yates duplex before the fire; McGill warned Keith to flee the
duplex; and McGill mixed styrofoam pieces into the gasoline
before dousing Perez and Banta, believing it would create a
pasty substance that would be more difficult to extinguish.
See McGill I, 140 P.3d at 934. After brief deliberations, the
jury found McGill guilty on each charge in the indictment.
At the aggravation phase, the jury determined beyond a
reasonable doubt that sufficient aggravating factors existed
under Ariz. Rev. Stat. § 13-703(F) to consider imposition of
the death penalty.
Counsel presented mitigation evidence over the course of
a four-day penalty-phase trial. The mitigation presentation
focused on McGill’s life history, including his dysfunctional
childhood and removal from his home; early drug use and
juvenile delinquency; drug and alcohol addiction later in life,
including chronic methamphetamine use; a purported brain
injury suffered in a car accident in the 1980s; and the
dysfunctional and abusive relationship between McGill and
his girlfriend, Jonna Hardesty. Mitigation Specialist Brewer
and several of McGill’s family members explained the
2
Capital trials in Arizona are divided into three proceedings: the guilt
phase, aggravation phase, and penalty phase. See Ariz. Rev. Stat. § 13-
703(A)–(C). At the guilt phase, the jury determines the defendant’s guilt
or innocence. At the aggravation phase, the jury determines whether
sufficient aggravating factors exist to warrant consideration of the death
penalty. See id. § 13-703(B). If the state proves aggravating factors
beyond a reasonable doubt, the proceeding moves to the penalty phase
where the jury determines whether the death penalty is appropriate in light
of any mitigating factors. Id. § 13-703(C).
10 MCGILL V. SHINN
dysfunction during McGill’s childhood. The story was a
difficult one. McGill’s father was an alcoholic and was
physically violent with McGill’s mother, Ann. They divorced
about the time McGill was born, and Ann took the five
children from California to Arizona. McGill’s father went to
Arizona and took the children from Ann and returned to
California. Ann regained custody and returned to Arizona,
where she worked multiple jobs to support herself and the
children. After another marriage, divorce, and a sixth child,
Ann took her children to Texas. While she worked, McGill
and his siblings were left to fend for themselves.
The children were removed from the home on several
occasions because Ann was unable to care for them. In 1970,
when McGill was eight years old, he and his brothers Cordell
and Lonnie were placed briefly in foster care. Shortly
thereafter, McGill and Cordell were transferred to Buckner’s
Boys Ranch, a harsh and structured environment, in San
Antonio, Texas. Two years later, McGill was released to his
mother. But by 1976, Ann was again unable to care for
McGill and applied for his admission to Boysville, another
all-boys reform school in San Antonio.
Witnesses testified that McGill’s fractured home life
affected him well into adulthood. McGill began using drugs
and alcohol at a young age. By adulthood, McGill was a
chronic, daily methamphetamine user. Methamphetamine
affected McGill’s behavior, sleep patterns, and decision-
making ability. Counsel connected McGill’s drug use to his
criminal history, especially two armed robberies. The
defense attempted to mitigate the effects of those convictions
by framing them through the lens of substance abuse. To that
end, the defense elicited testimony that McGill was
intoxicated and nearly homeless at the time, and that he
MCGILL V. SHINN 11
accepted responsibility for the robberies by pleading guilty
and serving his sentence. After McGill completed his
sentence, he reconnected with family and held a job.
Unfortunately, any progress McGill made was undercut by
his relationship with Hardesty, who was described by his
family as “one of the most evil people” they had ever met.
Hardesty also enabled McGill’s chronic methamphetamine
use, which further disrupted his life.
McGill’s expert neuropsychologist, Dr. Richard Lanyon,
provided useful context for McGill’s cognitive function,
history of substance abuse, and relationship with Hardesty.
Dr. Lanyon administered a battery of cognitive tests, which
revealed slight impairments to McGill’s language and
symbolic skills development but did not uncover any other
noteworthy cognitive deficiencies. Dr. Lanyon also reviewed
“quite a lot of records” from McGill’s childhood and found
that McGill’s neglectful and emotionally distant mother made
him particularly susceptible to manipulation from
women—especially Hardesty. When Hardesty “said jump,
[McGill] jumped.” According to Dr. Lanyon, McGill’s
unhealthy dependence on Hardesty was further exacerbated
by his chronic methamphetamine use, which likely impaired
McGill’s judgment leading up to the crime.
The jury was unpersuaded by McGill’s mitigation
presentation and ultimately returned a sentence of death. The
Arizona Supreme Court affirmed the conviction and sentence
in a published opinion, with one justice concurring in part and
dissenting with respect to a question under the Confrontation
Clause. McGill I, 140 P.3d 930; id. at 946 (Hurwitz, J.,
concurring in part and dissenting in part). McGill sought
certiorari review of the Confrontation Clause issue, which the
12 MCGILL V. SHINN
United States Supreme Court denied. McGill v. Arizona,
549 U.S. 1324 (2007) (mem.).
C. Post-Conviction Relief
In June 2010, McGill sought post-conviction relief (PCR)
in the Maricopa County Superior Court. Raising multiple
ineffective assistance claims, McGill argued that his counsel
failed, inter alia, to: retain necessary expert witnesses and
prepare Dr. Lanyon for his mitigation testimony; subpoena
material witnesses and effectively cross-examine others;
obtain necessary mitigation evidence; and discover and
present evidence that McGill was sexually abused at
Boysville. In preparation for the PCR proceedings, McGill
underwent a PET scan, which produced digital imaging of his
brain function. PCR counsel also retained additional expert
witnesses: psychiatrist and brain imagine expert Dr. Joseph
Wu, who reviewed McGill’s PET scan; psychiatrist
Dr. Richard Rosengard; and pharmacologist Dr. Edward
French.
The PCR court summarily denied all but one of McGill’s
claims by written order in October 2010, but ordered an
evidentiary hearing on McGill’s challenge to trial counsel’s
failure to retain experts to explore the relationship between
his purported brain injury and his crime. The PCR court held
the evidentiary hearing the following October. It heard
testimony from four witnesses: lead trial counsel Maria
Schaffer, Dr. Wu, Dr. Rosengard, and Dr. Lanyon.3
3
Although Dr. French provided a report in support of McGill’s PCR
petition, he did not testify at the evidentiary hearing.
MCGILL V. SHINN 13
Schaffer testified that she had difficulty retaining the
experts in addictionology and domestic violence that she felt
were necessary to defend McGill and thought that
“Dr. Lanyon did a horrible job of preparing for his
testimony.” She felt that Dr. Lanyon’s lack of preparation
coupled with her earlier difficulty retaining necessary expert
witnesses prevented her from adequately presenting
mitigating evidence of McGill’s drug addiction, brain injury,
and domestic violence at the hands of Hardesty. But Schaffer
also admitted that she had deliberately withheld from
Dr. Lanyon a pre-sentence report that the state used to
discredit his testimony on cross-examination.
Dr. Wu, who was the director of the Brain Imagery Center
at the University of California, Irvine, testified that he had not
personally examined McGill, but that he had reviewed
McGill’s PET scan and Dr. Lanyon’s report. He explained
that a PET scan acts as a “thermometer” for gauging
cognitive conditions but added that diagnosing cognitive
disorders requires separate neuropsychological testing.
Dr. Wu further testified that he would have ordered additional
testing to assess the actual effect of McGill’s brain injury on
his behavior had he reviewed McGill’s PET scan prior to
trial. Nevertheless, he conceded that Dr. Lanyon had
administered a “comprehensive battery” of tests and that the
results of those tests were compatible with the abnormalities
revealed in McGill’s PET scan.
Dr. Rosengard’s testimony provided a psychiatric
perspective to McGill’s cognitive functioning. It also
detailed the effects of McGill’s relationship with Hardesty,
and, for the first time, disclosed that McGill was a victim of
childhood sexual assault. He opined that McGill’s turbulent
upbringing made him especially susceptible to Hardesty’s
14 MCGILL V. SHINN
influence and that McGill suffered from Stockholm
Syndrome as a result of her manipulations. Dr. Rosengard
was not convinced, however, that McGill suffered from
cognitive deficiencies as a result of a traumatic brain injury.
He testified that his psychiatric evaluation independently
revealed that McGill did not suffer any cognitive deficits—
the same conclusion that Dr. Lanyon reached.
Dr. Lanyon stood by his trial testimony, stating that he
had a “[v]ery good” working relationship with counsel and
that neither Dr. Wu’s nor Dr. Rosengard’s findings would
have significantly altered his testimony. He added that,
although Dr. Wu’s and Dr. Rosengard’s reports indirectly
supported his conclusions, neither doctor’s report
corroborated his findings or provided a “smoking gun”
regarding McGill’s brain damage. In hindsight, Dr. Lanyon
conceded that McGill’s PET scan would have been helpful in
one way; it would have supported his finding that McGill’s
language functioning was deficient. Aside from that minor
area, Dr. Lanyon was unpersuaded that Drs. Wu and
Rosengard presented any evidence that would have altered his
original analysis.
Following the evidentiary hearing, the PCR court denied
McGill’s final ineffective assistance claim in a written order.
Applying Strickland, the PCR court held that counsel’s
performance at trial did not fall below an objective standard
of reasonableness. The PCR court noted that defense counsel
presented “a substantial amount of mitigation” evidence that
covered McGill’s “dysfunctional family background, his
relationship with Ms. Hardesty, and his substance abuse.”
The PCR court also found that McGill’s challenge to
Dr. Lanyon’s performance was flawed because Dr. Lanyon’s
“thorough and complete” evaluation of McGill simply did not
MCGILL V. SHINN 15
reveal evidence of “brain related impairment” that counsel
hoped it would. Thus, the state court concluded that counsel
was not deficient for failing to better present evidence of
cognitive deficiency to the jury.
The PCR court also held that even if counsel had been
deficient, none of her alleged errors prejudiced McGill.
Especially persuasive to the PCR court was Dr. Lanyon’s
testimony that neither Dr. Wu nor Dr. Rosengard aided his
trial testimony in any significant way. Neither expert
demonstrated that McGill suffered from any cognitive
deficiencies apart from minor language and speech functions.
The PCR court also noted that Dr. Wu’s and Dr. Rosengard’s
testimony disagreed on the central issue of whether McGill’s
prior drug use influenced his PET scan results. At best, their
testimony would have been cumulative to Dr. Lanyon’s
testimony; at worst, the inherent contradictions would have
weakened the mitigation presentation. As a result, even if
counsel erred in failing to secure their expert opinions, it was
not reasonably probable that their testimony would have
changed McGill’s sentence.
In 2013, McGill sought habeas relief under 28 U.S.C.
§ 2254. The district court denied his petition in January
2019, but granted McGill a certificate of appealability on his
ineffective assistance of counsel claim arising out of trial
counsel’s investigation and presentation of mitigation
evidence at the penalty phase of his trial. McGill timely
appealed.
16 MCGILL V. SHINN
II. SCOPE AND STANDARD OF REVIEW
A. Scope of Review
McGill presents several claims for review, only one of
which is certified for appeal. We may not review McGill’s
uncertified claims unless we grant a certificate of
appealability (COA). 28 U.S.C. § 2253(c)(1)(A) (“Unless a
. . . judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from . . . the final order in
a habeas corpus proceeding.”). We will treat McGill’s
briefing of his uncertified issues as an application for a COA.
Fed. R. App. P. 22(b)(1)–(2); Ninth Cir. R. 22-1(e); Slack v.
McDaniel, 529 U.S. 473, 483 (2000). We may issue a COA
“only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
McGill’s lone certified claim arises out of counsel’s
performance at the penalty phase of his trial. We take up this
certified claim in Part III. Of McGill’s remaining uncertified
claims, one—a claim that counsel was deficient by failing to
present the mitigating circumstances of McGill’s armed
robbery convictions—also arises from counsel’s performance
at the penalty phase. Although the district court considered
this a separate grounds for a COA, and denied it, we have
explained that the right to counsel secured by the Sixth and
Fourteenth Amendments “is a guarantee of effective counsel
in toto.” Browning v. Baker, 875 F.3d 444, 471 (9th Cir.
2017). We must consider “counsel’s conduct as a whole to
determine whether it was constitutionally adequate.” Id. In
Browning we observed that separating counsel’s alleged
errors in a proceeding into different questions and considering
whether to issue a COA as to each error “distort[s]” the
ineffective assistance of counsel inquiry. The proper
MCGILL V. SHINN 17
procedure is for a district court to consider whether to grant
a COA “at a higher level of generality” so that we may
consider counsel’s performance in the context of the entire
proceeding. Id. See White v. Ryan, 895 F.3d 641, 645 n.1
(9th Cir. 2018) (treating counsel’s failure to investigate and
present mitigating evidence as “a single claim regarding his
right to the effective assistance of counsel at the penalty
phase of resentencing”). Because the district court granted a
COA with respect to other aspects of counsel’s performance
at the penalty phase, we will treat McGill’s claim with respect
to the circumstances of his armed robbery as if the district
court had granted a COA and consider it in Part III.
McGill also seeks a COA for two other claims. First,
McGill asks that we issue a COA to review counsel’s
deficient performance at the guilt phase at his trial. McGill
argues that trial counsel failed to retain an arson expert to
rebut evidence that McGill mixed styrofoam into the gasoline
before dousing Perez and Banta. Because this alleged
omission occurred during the separate and discrete guilt
phase, we will consider it apart from McGill’s penalty phase
claim. For reasons we will explain in Part IV.A, we deny a
COA as to his guilt phase claim. Second, McGill challenges
his death sentence under the Ex Post Facto Clause in light of
Ring v. Arizona, 536 U.S. 584 (2002). Because we believe
that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right,” we will grant a COA with respect to McGill’s claim
under the Ex Post Facto Clause. Slack, 529 U.S. at 484. We
consider this claim on the merits in Part IV.B.
18 MCGILL V. SHINN
B. Standard of Review
Although we review the district court’s denial of a § 2254
petition de novo, Ramirez v. Ryan, 937 F.3d 1230, 1240 (9th
Cir. 2019), our review of McGill’s two certified claims is
subject to the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), which “guard[s] against extreme
malfunctions in the state criminal justice systems, and [is] not
. . . a means of error correction.” Greene v. Fisher, 565 U.S.
34, 38 (2011) (citation and internal quotation marks omitted).
AEDPA provides that a federal court
shall not . . . grant[] [a writ of habeas corpus]
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that 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)(1)–(2); see Harrington v. Richter,
562 U.S. 86, 97–98 (2011). McGill challenges the PCR
court’s decision under both of § 2254(d)’s prongs.
MCGILL V. SHINN 19
We may only grant relief under § 2254(d)(1)
if the state court arrives at a conclusion
opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the] Court has
on a set of materially indistinguishable facts.
Under the “unreasonable application” clause,
a federal habeas court may grant the writ if
the state court identifies the correct governing
legal principle . . . but unreasonably applies
that principle to the facts of the prisoner’s
case.
Williams v. Taylor, 529 U.S. 362, 413 (2000). “[C]learly
established Federal law” is limited to “the holdings . . . of
[Supreme] Court[] decisions” that existed when the state
court issued its decision. Id. at 412. The “pivotal question”
is whether the court’s application of law was unreasonable.
Richter, 562 U.S. at 101. A state court’s application of
federal law that is merely incorrect will not warrant relief,
Williams, 529 U.S. at 410–11; see White v. Woodall, 572 U.S.
415, 427 (2014) (“[R]elief is available under § 2254(d)(1)’s
unreasonable-application clause if, and only if, it is so
obvious that a clearly established rule applies . . . that there
could be no ‘fairminded disagreement’ on the question.”)
(citation omitted). Our review of state court factual
determinations under § 2254(d)(2) is similarly deferential.
We may not disturb the PCR court’s factual findings unless
they are “objectively unreasonable,” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003) (Miller-El I), which is “a
substantially higher threshold” than merely “believ[ing] the
state court’s determination was incorrect.” Schriro v.
20 MCGILL V. SHINN
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams,
529 U.S. at 410).
III. CERTIFIED CLAIM
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend.
VI. The Supreme Court has said that “the right to counsel is
the right to the effective assistance of counsel,” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970), which means that
“the accused is entitled to ‘a reasonably competent attorney,’
whose advice is ‘within the range of competence demanded
of attorneys in criminal cases,’” United States v. Cronic,
466 U.S. 648, 655 (1984) (quoting McMann, 397 U.S.
at 770–71). In evaluating a claim of ineffective assistance of
counsel, Strickland v. Washington, 466 U.S. 668 (1984),
supplies the “clearly established Federal law” for purposes of
§ 2254(d)(1). Strickland sets out a two-part test. First, “the
defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
at 687. Second, “the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id.
Strickland requires that a defendant prove that his “counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Id. at 686. In reviewing counsel’s
performance, our scrutiny “must be highly deferential,” lest
“a court, examining counsel’s defense after it has proved
unsuccessful, . . . conclude that a particular act or omission of
MCGILL V. SHINN 21
counsel was unreasonable.” Id. at 689. A “fair assessment,”
accordingly, “requires that every effort be made to eliminate
the distorting effects of hindsight.” Id.
McGill argues that, in denying his claim of ineffective
assistance of counsel at the penalty phase, the PCR court
misapplied Strickland under § 2254(d)(1) and unreasonably
determined the facts under § 2254(d)(2). If so, we would no
longer owe deference to the PCR court’s determinations, and
we would then resolve his ineffective assistance of counsel
claims “without the deference [to the PCR court] AEDPA
otherwise requires.” Panetti v. Quarterman, 551 U.S. 930,
953 (2007) (collecting cases); see also Johnson v. Williams,
568 U.S. 289, 303 (2013) (“AEDPA permits de novo review
in those rare cases when a state court decides a federal claim
in a way that is ‘contrary to’ clearly established Supreme
Court precedent.”); Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam) (holding that § 2254 does not apply where “the
reasoning [or] the result” of the PCR court’s decision
contradicts Supreme Court precedent (citation omitted)).
Whether McGill has satisfied § 2254(d) is thus critical to his
claims.
We will begin with McGill’s claim that we owe no duty
of deference under § 2254(d) to the PCR court’s decision.
Because we conclude that we do, we then review the merits
of McGill’s ineffective assistance of counsel claim through
the lens of § 2254(d).
22 MCGILL V. SHINN
A. Whether We Owe a Duty of Deference to the PCR Court’s
Decision
1. Application of clearly established federal law under
§ 2254(d)(1)
We will first examine the PCR court’s application of
Strickland. Section 2254(d)(1) outlines two possible avenues
to attack the state court’s legal analysis: where the state court
has misstated on-point Supreme Court precedent, and where
the state court has correctly stated the standard, but its
application of the precedent is unreasonable. The PCR court
cited Strickland and Richter and correctly recited Strickland’s
two-step test. McGill does not assert otherwise; rather,
McGill limits his challenge to the second avenue, arguing that
the PCR court unreasonably applied Strickland. He raises
four claims: (a) “[r]ather than assessing if counsel acted in
accordance with prevailing professional norms in
investigating and presenting evidence, the [PCR] court
focused on the specifics of the un-presented evidence and
other mitigation that was presented”; (b) the PCR court asked
whether the evidence would have changed “the court’s view,”
rather than “whether this evidence might have affected an
objective sentencer”; (c) the PCR court imposed a causal-
nexus requirement; and (d) the PCR court failed to assess
counsel’s cumulative failures.
a. Assessing professional norms
McGill argues that the PCR court failed to evaluate
counsel’s performance “under prevailing professional norms”
as required by Strickland, 466 U.S. at 688. In Strickland, the
Court said that there were no “detailed rules for counsel’s
conduct” or “checklist for judicial evaluation,” but that we
MCGILL V. SHINN 23
should look to “American Bar Association standards and the
like” and judge counsel based on “all the circumstances.” Id.
at 688, 690. At this most elevated perch on the ladder of
abstraction, we are unclear what errors McGill thinks the
PCR court committed. The only case McGill points to in
support of his claim is our decision in Milke v. Ryan,
711 F.3d 998 (9th Cir. 2013). That case does not advance
McGill’s claim. In Milke, we granted relief where a PCR
court “applied the wrong legal authority” to the petitioner’s
claim that he was entitled to impeachment evidence under
Giglio v. United States, 405 U.S. 150 (1972). Milke, 711 F.3d
at 1006. We held that a state court unreasonably applies
clearly established federal law when it applies the wrong
legal standard. Id. at 1006–07.
McGill cannot argue that the PCR court set out the wrong
standard. It did not. The PCR court cited Strickland and
properly set out its two-step test. Under step one, the PCR
court concluded that it could “not find that [Schaffer’s]
representation fell below an objective standard of
reasonableness.” The PCR court further held that
Strickland’s “second prong which concerns prejudice [was]
not met.” To the extent we understand McGill’s argument,
we find no merit in it.
b. Evaluating new mitigation evidence
McGill claims that the PCR court misapplied Strickland
by evaluating whether the mitigation evidence would have
affected the court’s judgment rather than asking if the
evidence could reasonably have changed the outcome for the
24 MCGILL V. SHINN
trier of fact.4 In this context, prejudice under Strickland
requires a “reasonable probability” that, but for counsel
errors, one juror would have voted against the death penalty.
Wiggins, 539 U.S. at 537. The PCR court’s duty is to
“reweigh the evidence in aggravation against the totality of
available mitigating evidence” and determine whether the
result of the proceeding would have been different had the
new evidence been presented. Id. at 534 (citing Strickland,
466 U.S. at 694); White v. Ryan, 895 F.3d 641, 670 (9th Cir.
2018). That review is objective, and the state court may not
deny relief merely because “it would have imposed a death
penalty if it had considered the mitigation evidence.” White,
895 F.3d at 670.
We think that McGill has mischaracterized what the PCR
court did. McGill highlights two isolated statements from the
PCR court’s order that he claims are evidence that the PCR
court impermissibly relied on its subjective view: that
McGill’s newly presented evidence was “not significant in
the Court’s view,” and the evidence “would not have been a
significant game changer with regard to the outcome.” To
4
In this context, McGill claims that the trier of fact was the jury in the
first instance and the Arizona Supreme Court in the second. He argues
that the PCR court erred because “it focused only on the trial, and ignored
that the Arizona Supreme Court had to independently reweigh the
aggravation and mitigation.” We refuse to fault the PCR court for not
conducting two separate inquiries. We are hard pressed to understand
how any reviewing court could decide that new mitigation evidence would
not persuade a jury, but would persuade a majority of a state supreme
court. Cf. Shinn v. Kayer, 141 S. Ct. 517, 525–26 (2020) (declining to
address how the Arizona Supreme Court might have independently
weighed the evidence because “the weighing of aggravating and
mitigating evidence in a prior published decision is unlikely to provide
clear guidance about how a state court would weigh the evidence in a later
case.”).
MCGILL V. SHINN 25
start, the PCR court’s statement that newly presented
evidence was insignificant “in the Court’s view,” does not
betray the subjective analysis that McGill claims. As courts
we are always asked for “our” opinion. We can do no other
than state “in the court’s view” what the record supports and
what the law requires. Sometimes we are tasked with giving
a second-order opinion—determining, for example, whether
a set of facts might have altered the jury’s view. In this case,
it is clear from the context that the PCR court’s reference to
“the Court’s view” was a shorthand expression—the
equivalent of saying “the court concludes.” Nothing in the
PCR court’s opinion suggests that it had stepped outside its
role to say what it would have decided if it had been the jury
or the Arizona Supreme Court. The court fully explained its
reasoning. There is no constitutional error here. Nor can we
find any error in the PCR court’s reference to whether the
evidence was a “game changer.”
c. Causal-nexus test
McGill argues that the PCR court impermissibly
conditioned relief on his ability to prove a causal nexus
between his brain injury and his actions. We have previously
explained the troubled history of the causal-nexus test in
Arizona:
Beginning in the late 1980s, [the] Arizona
Supreme Court developed a “causal nexus”
test for nonstatutory mitigation. Under this
test . . . evidence of a difficult family
background or a mental condition was not in
and of itself relevant mitigating evidence. As
a matter of Arizona law, such evidence was
relevant for mitigation purposes only if it had
26 MCGILL V. SHINN
some causal effect contributing to the
defendant’s behavior in the commission of the
crime at issue. Thus, while the defendant
could submit evidence of his difficult family
background or mental condition, the
sentencing court was prohibited from treating
it as legally relevant mitigation evidence
unless the defendant proved a causal
connection between his background or
disorder and the crime. In capital cases from
the late 1980s to the mid-2000s, the Arizona
Supreme Court repeatedly articulated this
causal nexus test for nonstatutory mitigation.
The test was “contrary to . . . clearly
established Federal law, as determined by the
Supreme Court of the United States” in
Eddings [v. Oklahoma, 455 U.S. 104 (1982)].
McKinney v. Ryan, 813 F.3d 798, 813 (9th Cir. 2015) (en
banc). Accordingly, after Eddings, it is constitutional error
for a trial court to exclude mitigation evidence solely because
the defendant cannot show a causal nexus between the
evidence and his crime. See 455 U.S. at 113–14 (holding that
a sentencing court cannot “refuse to consider, as a matter of
law, any relevant mitigating evidence”). But Eddings does
not hold that evidence of a causal nexus is irrelevant to the
trier of fact. As we said in McKinney, “[o]nce the jury has
heard all the defendant’s mitigation evidence, there is no
constitutional prohibition against the State arguing that the
evidence is not particularly relevant or that it is entitled to
little weight.” McKinney, 813 F.3d at 817 (quoting with
approval State v. Anderson, 111 P.3d 369, 392 (Ariz. 2005)).
Moreover, “the failure to establish such a causal connection
may be considered in assessing the quality and strength of the
MCGILL V. SHINN 27
mitigation evidence.” Id. at 818 (emphasis added) (quoting
with approval State v. Newell, 132 P.3d 833, 849 (Ariz.
2006)). Thus, after Eddings, the sentencing court may not
exclude mitigation evidence because of a lack of a causal
nexus, but the prosecutor may argue to the jury that such
evidence is not deserving of any weight. See 455 U.S.
at 114–15.
Here, McGill argues that the PCR court—not the trial
court—erred by referring to the lack of a “causal nexus.” In
addressing that issue, the PCR court wrote:
The nexus between the defendant’s mental
condition and his actions on the night of the
murder would not have been significantly
strengthened by the testimony of Dr. Wu and
Dr. Rosengard, and thus the Court concludes
that there would not have been a reasonable
probability that the result of the proceedings
would have been different.
Schaffer testified at the PCR hearing that she was trying to
connect the dots between McGill’s head injury and his crime:
“she wanted more mitigation to give a nexus to explain that
the defendant had brain damage[,] which might explain his
violent behavior on the night in question.” The PCR court’s
findings are consistent with the record:
Dr. Lanyon was clear in his testimony that
Dr. Wu’s report would have only helped him
in one small minor way, that is[,] being
consistent with his finding that [McGill] has
some speech and language deficiencies. He
testified that Dr. Wu’s report was no
28 MCGILL V. SHINN
“smoking gun” by any means but was simply
not inconsistent with his findings. He also
testified that Dr. Rosengard’s findings did not
assist him in any way and would not have
added to the findings that he presented to the
jury.
. . . Further, had Dr. Wu and Dr. Rosengard
testified at trial, they would have completely
contradicted one another with regard to the
effect of substance abuse upon the brain and
whether or not the damage is permanent and
irreversible. This would have been an
opening for the State to poke holes in the
mitigation and would have hurt the defense’s
presentation. The Court does not find that had
Dr. Wu and Dr. Rosengard testified during the
mitigation phase of the trial that there likely
would have been a different result. At best,
their testimony would have been cumulative
and, at worst, would have contradicted each
other and weakened the mitigation
presentation.
Read in context, the PCR court’s brief conclusion that
“[t]he nexus between [McGill’s] mental condition and his
actions on the night of the murder would not have been
significantly strengthened by the testimony of Dr. Wu and
Dr. Rosengard” clearly goes to its weight and not to its
admissibility. The court’s order discounted the persuasive
value—not the relevance—of McGill’s evidence. Schaffer’s
trial strategy was to create a nexus between McGill’s brain
damage and the crime—evidence that would have been far
more persuasive than simply proving that McGill had
MCGILL V. SHINN 29
suffered a head injury. It was thus reasonable for the PCR
court to comment on the new evidence related to such a
“nexus.” And the PCR court reasonably concluded that even
if McGill’s PCR-stage evidence was admitted, its lack of
nexus to his crime rendered it less persuasive in light of the
contradictory evidence. Such an assessment is consistent
with Eddings.
d. The cumulative effect of counsel’s errors
Finally, McGill argues that the PCR court improperly
applied Strickland’s prejudice prong by evaluating his PCR-
stage evidence piecemeal instead of considering whether its
cumulative effect would have sufficiently undermined
confidence in the jury’s death sentence. To assess prejudice,
the PCR court was required to reweigh the aggravation
evidence against the newly presented mitigation evidence,
whether “adduced at trial . . . [or] in the habeas proceeding.”
Williams, 529 U.S. at 397–98; see Wiggins, 539 U.S. at 534.
The purpose is to determine whether, considering counsel’s
errors, there is a reasonable probability that the result would
have been different. Strickland, 466 U.S. at 694.
A PCR court, however, need only assess prejudice if
counsel’s performance was deficient. A court “cannot
consider the cumulative effect of non-errors.” Williams v.
Filson, 908 F.3d 546, 570 (9th Cir. 2018); see Strickland,
466 U.S. at 697 (“[T]here is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both [the performance and
prejudice] components of the inquiry if the defendant makes
an insufficient showing on one.”). McGill faults the PCR
court for limiting its prejudice determination to the effect that
Dr. Wu’s and Dr. Rosengard’s testimony would have had on
30 MCGILL V. SHINN
the jury during the penalty phase. But, for the reasons
discussed, the PCR court reasonably determined in two
separate orders that counsel’s representation at trial satisfied
Strickland’s objective standard of reasonableness. At that
point, the prejudice evaluation was unnecessary, although the
PCR court proceeded to step two of Strickland anyway. It
would make little sense to require the PCR court to consider
the cumulative effect of deficient decisions when the PCR
court did not find any particular deficiency; such a
requirement asks the court to take a pointillist view of
counsel’s performance—to see if the court can assemble a
picture from indistinct impressions. To be sure, Strickland
requires a reviewing court to consider “the totality of the
evidence,” but that holistic inquiry is a means of “taking due
account of the effect of the errors.” Strickland, 466 U.S. at695–96 (emphasis added). If there are no errors, there is no
need to consider their cumulative effect. The PCR court
therefore reasonably applied Strickland’s objective standard
to trial counsel’s performance.
2. Determinations of fact under § 2254(d)(2)
Section 2254(d)(2) imposes a “daunting standard” to
disrupt a state court’s factual findings, which precludes relief
in all but “relatively few cases.” Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004), abrogated on other grounds by
Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).
We have recognized “several flavors” of unreasonable factual
determinations that may satisfy § 2254(d)(2). Id. These
include a state court plainly misapprehending or misstating
the record, id. at 1001 (citing Wiggins v. Smith, 539 U.S. 510,
528 (2003)); failing to consider key aspects of the record, id.at 1008 (citing Miller-El I, 537 U.S. at 346); and ignoring
“highly probative” evidence supporting the petitioner’s claim,
MCGILL V. SHINN 31
id. at 1001. McGill identifies three PCR-court factual
findings that, he claims, meet those “flavors” of erroneous
fact finding: (a) that counsel’s decision not to call
addictionologist Dr. Beckson was tactical; (b) that McGill
failed to substantiate his claims of childhood sexual assault;
and (c) that Dr. Lanyon was a qualified expert witness upon
whom Schaffer was entitled to rely. We conclude that these
findings were reasonable.
a. Addictionologist testimony
The record supports the PCR court’s determination that
counsel’s “tactical decision not to call Dr. [Beckson] was
reasonable and does not constitute ineffective assistance of
counsel.” McGill challenges this finding with two
arguments: first, that McGill’s lead counsel did not make a
“tactical” decision not to call an addictionologist because she
was denied her addictionologist of choice; and, second, that
when Schaffer decided not to call Dr. Beckson, she failed to
seek additional funding for a different addictionologist.
As Schaffer was preparing her case, she approached
Office of Legal Affairs Director Sherwin for funding to retain
an addictionologist. Counsel’s preferred addictionologist was
Dr. Lesley Hoyt-Croft, but Sherwin denied Schaffer’s request
because Dr. Hoyt-Croft was not a medical doctor.5 Instead,
Schaffer hired Dr. Mace Beckson. McGill provides no
explanation to support why Director Sherwin’s preference to
retain a medical doctor was unreasonable. Sherwin was not
counsel of record, but as Schaffer’s supervisor, she had some
responsibility for managing the cases handled by the Office
5
The record is not precise on Sherwin’s reasons. Nothing in the
record suggests that Sherwin thought that Hoyt-Croft was not qualified.
32 MCGILL V. SHINN
of Legal Affairs. When Dr. Beckson informed Schaffer that
he could not testify unless McGill admitted his involvement
in the crime, Schaffer decided against calling Beckson as a
witness. That left her with Dr. Lanyon as McGill’s only
expert witness. The PCR court found that Schaffer’s decision
was “tactical.”
McGill argues that the PCR court’s finding is
unreasonable. The PCR court found that “[Schaffer] did not
call Dr. [Beckson] to testify because she ‘ultimately opined
that he could not assist in the case because Mr. McGill would
not admit his guilt.’” McGill argues that the finding is clearly
erroneous because Schaffer did not “opine” that Dr. Beckson
could not testify; it was Dr. Beckson who “opined” he could
not testify. According to McGill, the PCR court’s finding
should read “he” rather than “she.” Assuming that this is
indeed an error, we cannot tell whether this is an error in
perception or transcription by the PCR court. But, in either
case, it does not matter. Whether Dr. Beckson told Schaffer
that he would not testify as an addictionologist without
McGill admitting that he committed the crime, or whether
Schaffer determined that she would not put Beckson on the
stand, the context for the PCR court’s finding is clear:
Schaffer knew she could not put Beckson on the stand
because he would not be an effective witness. The PCR court
found the obvious: “[counsel] conceded that she did get an
addictionologist but that she did not want to use that
particular expert.” In that sense, her decision not to force an
ineffective expert witness to testify was “tactical.”
That finding was especially reasonable in light of
counsel’s purpose for calling an addictionologist in the first
place, which was to demonstrate the central role that McGill’s
drug abuse played in his behavior at the time of Perez’s
MCGILL V. SHINN 33
murder. In essence, the addictionologist was there to portray
McGill’s drug use as a mitigating factor for his crime instead
of an aggravating factor. But McGill’s refusal to admit any
involvement in Perez’s murder hindered Dr. Beckson’s ability
to tie McGill’s drug use to his actions leading up to the crime.
Dr. Beckson was, therefore, justified in his professional
assessment that “he could not assist in the case because
Mr. McGill would not admit his guilt.” From there, counsel’s
options were limited. Schaffer could subpoena Dr. Beckson
to testify despite his stated reservations or she could decline
to call Dr. Beckson at all. Because Dr. Beckson’s testimony
would not have been helpful to the defense, it was reasonable
for the PCR court to conclude that counsel’s decision was
tactical.
McGill argues that once Schaffer realized she could not
call Dr. Beckson, she should have secured a different
addictionologist and that it was ineffective assistance of
counsel to fail to do so. Nothing in Schaffer’s decision to
proceed without Dr. Beckson suggests she was ineffective
because she did not procure a different addictionologist. A
different addictionologist might have been willing to testify
anyway, but that is not Schaffer’s failing. She had sought
funding for a qualified addictionologist, and Sherwin had
approved funding for Dr. Beckson. Nothing in the Sixth
Amendment guarantees McGill his choice of
addictionologists, or an addictionologist who will testify
favorably to him. See Ake v. Oklahoma, 470 U.S. 68, 83
(1985). Although Schaffer made clear that she wanted
additional resources, in practice, attorneys must often decide
how to use limited resources when confronted with these
evidentiary “dead ends.” Carter v. Davis, 946 F.3d 489, 524
(9th Cir. 2019) (per curiam); see Bobby v. Van Hook,
558 U.S. 4, 11 (2009) (per curiam).
34 MCGILL V. SHINN
The PCR court also found that McGill had not shown
“how any other addiction specialist would have testified
without [McGill’s] admission.” McGill argues that this
finding is objectively unreasonable and points to Dr. French’s
PCR-stage report that an addictionologist could have testified
regardless of McGill admitting guilt. Dr. French’s report
does not change our view of the PCR court’s findings. Even
if we accepted that some other addictionologist could have
testified for McGill, the PCR court’s decision rested on the
tactical nature of counsel’s decision not to call Dr. Beckson
and not whether another addictionologist could have testified.
At that point, McGill relied on Dr. Lanyon to put his drug use
in context. Dr. Lanyon testified at the penalty phase of the
trial about McGill’s chronic methamphetamine use and that
such use generally “makes [the user] paranoid, actively
paranoid, and seriously impairs their judgment.” Indeed, he
said, such drug use “would remove any remaining fragment
of ability to reason.” The PCR court addressed Dr. French’s
report and found that Dr. French’s report “would add nothing
to Dr. Lanyon’s testimony” because Dr. French “did not
evaluate [McGill] so any testimony regarding [McGill’s]
substance abuse history, including amounts used on the night
in question, history of abuse and brain damage is
speculative.” This finding is supported in the record, as
Dr. French’s report provided similar statements regarding
chronic methamphetamine use as did Dr. Lanyon’s. Like
Dr. Beckson, neither Dr. French nor Dr. Lanyon could
connect McGill’s drug use to his actual behavior. Thus,
regardless of whether a different addictionologist could have
testified absent McGill’s admission of guilt, the only
evidence in the record suggests that testimony would have
been substantially similar to Dr. Lanyon’s. The PCR court
reasonably determined that Dr. French’s report added nothing
MCGILL V. SHINN 35
to Dr. Lanyon’s testimony and that counsel’s tactical
decisions did not constitute ineffective assistance.
b. Unsubstantiated sexual abuse
McGill claims that counsel was ineffective for failing to
investigate a sexual assault McGill said he experienced at
Boysville. At the PCR stage, McGill alleged for the first time
that he suffered two sexual assaults while at Boysville and
that those assaults would have been persuasive mitigating
evidence if presented to the jury. The PCR court rejected
McGill’s allegations of sexual assault as unsubstantiated.
McGill now contends that the PCR court ignored credible
evidence of the sexual abuse, including Dr. Rosengard’s
PCR-stage report and the account of McGill’s brother Lonnie,
explaining his own sexual abuse at Boysville.
Evidence of sexual abuse can be powerful evidence
“relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535; see Wharton v. Chappell, 765 F.3d
953, 978 (9th Cir. 2014). At the § 2254(d)(1) stage, the
inquiry is not whether counsel reasonably investigated the
sexual abuse, but whether the PCR court’s conclusion that
McGill failed to substantiate the abuse was reasonable in light
of the new evidence. McGill offered no evidence at trial that
he was sexually abused as a child and did not disclose sexual
abuse to anyone until his 2009 evaluation with
Dr. Rosengard—nearly a decade after Perez’s murder. Yet,
McGill had the opportunity to disclose the purported abuse as
early as 2003, when Dr. Lanyon performed his pre-trial
evaluation. Dr. Lanyon’s report noted:
Mr. McGill was questioned regarding abuse
as a child. He stated that his mother’s second
36 MCGILL V. SHINN
husband (his step-father) physically abused
him on one occasion. . . . Apparently this man
frequently threatened physical violence and
was very intimidating, but actually hit
Mr. McGill only once. Mr. McGill denied
any sexual abuse and has never considered
that he was emotionally abused.
Dr. Lanyon’s report and trial testimony demonstrate that
McGill had no reservations about disclosing physical abuse
he suffered at the hands of his step-father. Yet, there is no
indication that McGill suffered the type of sexual abuse that
McGill now alleges. The PCR court was not required to
accept McGill’s delayed allegation of abuse in light of his
earlier denial that such abuse ever happened.
Lonnie’s PCR-stage affidavit describing his own sexual
abuse at Buckner’s Boys Ranch does not render the state
court’s determination unreasonable. McGill asserts that
Lonnie’s affidavit was sufficiently corroborative of his own
sexual abuse to have prompted an evidentiary hearing. But
Lonnie’s account does not support McGill’s allegations of
abuse. Lonnie claimed that the sexual assaults occurred at
Buckner’s Boys Ranch, while McGill claims that the abuse
occurred at Boysville. McGill attempts to dismiss the
discrepancy due to Dr. Rosengard’s limited interaction with
McGill. But the inconsistencies between the two brothers’
reports support the PCR court’s conclusion that McGill did
not substantiate the sexual abuse. Even setting aside those
discrepancies, counsel could not have known about the abuse
Lonnie suffered because Lonnie was generally unhelpful to
the investigation. As Schaffer testified, and the PCR court
accepted, Lonnie “absolutely refused to cooperate in coming
to court.” Indeed, Schaffer testified that Lonnie threatened
MCGILL V. SHINN 37
her and “his brother’s case should he be forced to appear.”
Under those circumstances, it might have been ineffective
assistance of counsel to have called Lonnie as a witness; at
the very least, it was a strategic decision. We agree with the
PCR court that her decision not to call Lonnie as a witness
was “tactically sound.” In light of McGill’s earlier denials
that any sexual abuse occurred and the equivocal nature of the
new evidence, it was not “an unreasonable determination of
the facts,” 28 U.S.C. § 2254(d)(2), for the PCR court to
conclude that McGill “failed to substantiate his claim that he
was sexually abused.”
c. Expert witness qualifications
McGill claims that Schaffer was ineffective because she
allowed Dr. Lanyon to testify despite her concerns with his
preparation and testimony. During counsel’s PCR testimony,
she testified that Dr. Lanyon “did a horrible job of preparing
for his testimony” and that he “was not qualified for the tasks
presented in Mr. McGill’s case.” The PCR court disagreed,
finding that Dr. Lanyon was “a qualified expert and [that
counsel] was entitled to rely on the competency of his
evaluation.” McGill now argues that the PCR court’s focus
on whether counsel was reasonably entitled to rely upon
Dr. Lanyon’s testimony misses the point. McGill claims that
because Schaffer was forced to use Dr. Lanyon, she could not
have made a tactical decision to rely on his testimony.
McGill also argues that the PCR court’s finding that
Dr. Lanyon was qualified to testify was unreasonable because
Dr. Lanyon was an “all-purpose” expert, not tailored to
McGill’s case.
The PCR court’s finding that Dr. Lanyon was qualified to
testify was reasonable. Dr. Lanyon was a professor of
38 MCGILL V. SHINN
psychology at Arizona State University, a position he had
held since 1975. He was board certified in clinical and
forensic psychology with a specialty in psychological
assessment, all of which were important to McGill’s defense.
He also had extensive experience testifying in capital and
other cases for both the state and the defense, but more often
for the defense. See, e.g., Sansing v. Ryan, 997 F.3d 1018,
1037 (9th Cir. 2021); Bible v. Ryan, 571 F.3d 860, 869 (9th
Cir. 2009); Boggs v. Shinn, No. CV-14-02165-PHX-GMS,
2020 WL 1494491, at *41 (D. Ariz. March 27, 2020); Morris
v. Ryan, No. CV-17-00926-PHX-DGC, 2019 WL 1858137,
at *5 (D. Ariz. April 25, 2019); Newell v. Ryan, No. CV-12-
02038-PHX-JJT, 2019 WL 1280960, at *5 (D. Ariz. March
20, 2019); State v. Young, No. 1 CA-CR 13-0429, 2014 WL
6790746, at *1 (Ariz. Ct. App. Dec. 2, 2014); State v. Carr,
No. 1 CA-CR 07-1046, 2009 WL 1879494, at *2 (Ariz. Ct.
App. June 30, 2009). McGill’s classification of Dr. Lanyon
as an “all-purpose” witness “not tailored” to his specific case
rings hollow in light of Dr. Lanyon’s experience and
credentials.
Furthermore, the record supports a conclusion that
Schaffer made a tactical decision to go forward with
Dr. Lanyon’s testimony even though she had reservations
about the strength of his conclusions. Schaffer made clear in
her PCR hearing testimony that she was not happy with his
performance on the stand. She had had reservations at the
time of trial about his forthcoming testimony because he had
told her that the case was “challenging,” “he didn’t like it,”
and “the facts of the case [were] horrendous; they’re
overwhelming.” This is not the language of incompetence; it
is an expert witness who was not impressed with the results
of his testing. Dr. Lanyon’s written report cited a series of
tests he conducted in the approximately seven hours he spent
MCGILL V. SHINN 39
with McGill. He concluded that “Mr. McGill’s scores on
these tests were all in the average range. These results
suggest that he does not currently suffer any cognitive deficits
(that is, his ability to use his thinking processes) as a result of
brain impairment.” When Schaffer was asked by the state
about this conclusion, she admitted that “the problem for
[her] as a defense lawyer, reading that kind of assessment,
[was] that it’s not very useful . . . to make Mr. McGill
sympathetic to the jury during the penalty phase. . . . It was a
very difficult case to defend.” It may be an understatement
to say that Dr. Lanyon’s report was not as favorable as
counsel wished. That counsel went forward with the only
expert witness she had is evidence of the weakness of her
case and not her ineffective assistance.6
***
We conclude that McGill has not met § 2254(d)’s high
bar. The PCR court correctly identified and reasonably
applied clearly established federal law, and its conclusions
did not rely on unreasonable determinations of fact. McGill’s
claims remain subject to AEDPA’s deferential standard of
review.
B. AEDPA Review of McGill’s Ineffective Assistance of
Counsel Claim
Having determined that AEDPA review is appropriate, we
turn to the merits of McGill’s multifaceted ineffective
assistance claim. To assess the constitutional sufficiency of
counsel’s performance, we compare counsel’s actions at trial
6
We address in Part III.B.3 infra the claim that Schaffer was
ineffective in her own preparation of Dr. Lanyon.
40 MCGILL V. SHINN
with the prevailing professional norms of the time. This is an
objective test, and we must be cautious not to allow hindsight
to color our evaluation. Strickland, 466 U.S. at 680, 689.
The standard is “necessarily a general one” and reflects
counsel’s complex responsibility to “take account of the
variety of circumstances faced by defense counsel.” Van
Hook, 558 U.S. at 7 (quoting Strickland, 466 U.S. at 688–89).
We therefore begin our analysis with a “strong presumption”
that counsel’s decisions reflect “reasonable professional
judgment.” Cullen v. Pinholster, 563 U.S. 170, 190, 196
(quoting Strickland, 466 U.S. at 689–90)). Moreover,
because our review under both AEDPA and Strickland’s
standards are highly deferential to the PCR court’s underlying
decision, our review here must be “doubly deferential.” Id.
at 190 (citation omitted). Surmounting such a “high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010).
McGill’s ineffective assistance of counsel claim arises
from counsel’s purported failure at the penalty phase to
(1) develop a “relationship of trust” with McGill and his
family; (2) obtain “classic sources” of mitigation evidence;
(3) prepare Dr. Lanyon for his testimony; and (4) uncover and
present evidence of McGill’s substance abuse, sexual assault,
and domestic violence.
1. Development of a relationship of trust
McGill claims that “Schaffer and her team failed to
develop a relationship of trust or a rapport with McGill and
his family,” and attributes McGill’s refusal to share
mitigating information to that failing. The PCR court
concluded that it could “not find that Ms. [Schaffer’s]
MCGILL V. SHINN 41
representation fell below an objective standard of
reasonableness.”
The PCR court’s conclusion is not contrary to clearly
established Supreme Court precedent. Nothing in the Sixth
Amendment suggests that an accused is entitled to “rapport”
with his attorney, and McGill has not directed us to any case
from the Supreme Court establishing such a proposition.
Indeed, McGill’s argument is not only not supported by
Supreme Court authority, it is contrary to Morris v. Slappy,
461 U.S. 1, 14 (1983). There, the Supreme Court held that
the Sixth Amendment right to counsel did not guarantee
criminal defendants “a meaningful attorney-client
relationship.” Id. at 13 (emphasis omitted). The Court
explained that “[n]o court could possibly guarantee that a
defendant will develop the kind of rapport with his attorney”
necessary to meet such a standard. Id. Accordingly, the
Court “reject[ed] the claim that the Sixth Amendment
guarantees a ‘meaningful relationship’ between an accused
and his counsel.” Id. at 14 (footnote omitted).
Perhaps sensing the lack of any Supreme Court authority,
McGill pivots to challenge the amount of time counsel spent
with McGill and his family. He claims that Schaffer met with
McGill for less than ten hours. He provides no further
context, cites no cases establishing a standard for measuring
time with a client, and refers only to the broadest of ABA
guidelines for the criminal defense bar. That is not sufficient
to satisfy his burden under AEDPA. The Court has
consistently cautioned us against imposing a mechanical
standard by which counsel may be evaluated. See Van Hook,
558 U.S. at 7 (recognizing that Strickland’s standard was
“necessarily a general one”); see also Strickland, 466 U.S. at
689 (finding that formulaic rules or duties “interfere with the
42 MCGILL V. SHINN
constitutionally protected independence of counsel”). We
must consider whether the time counsel spent in consultation
reflects “reasonable professional judgment.” Strickland,
466 U.S. at 690. There is no evidence that ten hours of
consultation was unreasonable or that it undermined McGill’s
defense. Counsel’s strategy was to focus on mitigation,
which might not have required extensive time with McGill.
The defense team traveled to interview McGill’s family,
obtained hundreds of pages of records, and presented four
days of mitigation testimony.
Nor is there any evidence that the defense team violated
McGill’s trust or that of his family. McGill cannot escape the
fact that, as Schaffer put it, much of his family was “either
dishonest or not cooperative” in answering counsel’s
questions. Given the depth and breadth of mitigation
evidence counsel presented, the PCR court reasonably
concluded that counsel’s performance did not fall below
prevailing professional norms.
2. Investigation of additional mitigation records
McGill claims that Schaffer failed to obtain “classic”
sources of mitigation evidence, such as McGill’s juvenile
adjudications, police reports, marriage and divorce records,
school test scores, and his siblings’ arrest records. The PCR
court noted that McGill’s mitigation specialist “testified for
three days on the witness stand when she told [McGill’s] life
story including his difficult childhood, drug abuse, and
alleged domestic violence. All these areas were explored in
detail.” The court also concluded that counsel “present[ed]
to the jury a substantial amount of mitigation” evidence with
respect to “substance abuse . . . . [his] dysfunctional family
background, [and] his relationship with Ms. Hardesty.” That
MCGILL V. SHINN 43
included “evidence that [McGill] had an abusive childhood;
that he was psychologically immature and, as a result, his
girlfriend had greater than normal influence over him; that he
suffered from some degree of mental impairment; that he
performed well in institutional settings; and that his family
cares about him.” The court also found that Dr. Lanyon
“reviewed substantial relevant information concerning
Defendant McGill’s background.” From this, the PCR court
concluded that it could “not find that Ms. [Schaffer] was
ineffective in presenting these issues to the jury.”
“[M]itigation evidence [can] complete, deepen, or
contextualize the picture of the defendant presented by the
prosecution [and] can be crucial to persuading jurors that the
life of a capital defendant is worth saving.” Allen v.
Woodford, 395 F.3d 979, 1000 (9th Cir. 2005). To that end,
penalty-phase counsel must conduct a thorough investigation
into the relevant mitigation evidence. See Williams, 529 U.S.
at 396. Counsel need not “scour the globe on the off chance
something will turn up,” Rompilla v. Beard, 545 U.S. 374,
385 (2005), but it is nonetheless obligated “to conduct a
thorough investigation of the defendant’s background.”
Williams, 529 U.S. at 396; see Boyde v. California, 494 U.S.
370, 382 (1990).
The record amply supports the PCR court’s findings.
McGill’s counsel presented extensive mitigation evidence and
diligently attempted to discover much more. Mitigation
Specialist Brewer obtained documents spanning much of
McGill’s life, including McGill’s elementary and middle
school records, foster care placement records, records from
Buckner’s and Boysville, records of his convictions and
incarcerations, and post-incarceration employment records.
Brewer also attempted to recover other records but was
44 MCGILL V. SHINN
thwarted by factors outside her control. For example, a
hospital record-retention policy prevented her from obtaining
medical records to corroborate McGill’s head injury, and
Buckner’s Boys Ranch provided all of McGill’s available
records, which happened to be incomplete. McGill’s public
school records also proved difficult to obtain because the
schools often did not keep full records and regularly
forwarded records to new schools when McGill and his
family moved. Nevertheless—and despite the difficulty in
obtaining complete records—Brewer filled the gaps in the
mitigation record with interviews and testimony from
McGill’s family and friends. Counsel and the defense team
as a whole endeavored to uncover as much mitigation
evidence as possible, and it is unclear what else they could
have done to supplement the mitigation records they did
obtain. We are not persuaded that their efforts were
deficient.7
Nor is there any evidence that the mitigation records
McGill now seeks were readily available. Without citations
to the record, McGill alleges that there are juvenile records,
boys’-home records, and elementary school records that
would have aided the defense. We do not know what these
documents are, and he offers no explanation for how counsel
overlooked or otherwise should have discovered them.
McGill’s speculation that these records would have aided his
7
Dr. Lanyon’s penalty-phase testimony further illuminates the
breadth of mitigation evidence that the defense team recovered. He
testified that counsel provided “quite a lot of school records, junior high
school records and records from the institutions [McGill] was put in as a
child . . . and . . . interview notes from interviews of a variety of people
who knew [McGill].” The Arizona Supreme Court echoed Dr. Lanyon’s
sentiment two years later, finding the amount of mitigation evidence
presented was “not insignificant.” McGill I, 140 P.3d at 945.
MCGILL V. SHINN 45
mitigation effort is unpersuasive given the extensive
testimony presented during the penalty phase.
3. Preparation of Dr. Lanyon
McGill also claims that Schaffer did not adequately
prepare Dr. Lanyon. The PCR court found that counsel was
not deficient for failing to hire additional mental-health
experts and that she adequately prepared Dr. Lanyon for his
penalty-phase testimony. Both conclusions were reasonable.8
We will accept as a general proposition that counsel is
under a duty to prepare witnesses for their testimony. At the
same time, “there is no expectation” that an attorney prepare
for every possible contingency; she need not be a “flawless
strategist or tactician,” and “may not be faulted for a
reasonable miscalculation or lack of foresight or for failing to
prepare for what appear to be remote possibilities.” Richter,
562 U.S. at 110.
Much of McGill’s frustration with Dr. Lanyon arises out
of the state’s effective cross-examination during his penalty-
phase testimony. Before he submitted his written report,
Dr. Lanyon examined McGill, conducted various
psychological tests, and reviewed extensive records provided
to him by counsel. At trial, counsel asked Dr. Lanyon about
8
To the extent that McGill renews his argument that it was
unreasonable for counsel to rely on Dr. Lanyon’s testimony because she
was forced to use him as an expert witness, that argument fails for the
reasons discussed in Part III.A.2.c. Dr. Lanyon was qualified to evaluate
McGill and had extensive experience testifying in capital cases. In any
event, criminal defendants do not have a constitutional right “to choose
[an expert] of his personal liking or to receive funds to hire his own.” Ake,
470 U.S. at 83.
46 MCGILL V. SHINN
a head injury McGill suffered in a car accident about eight
months before he committed two armed robberies, for which
he served time in prison. Dr. Lanyon testified that McGill
described the symptoms he suffered after the accident.
Dr. Lanyon testified such symptoms were consistent with
frontal lobe damage. Dr. Lanyon added that McGill told him
“he had no recollection of these robberies at all.” Dr. Lanyon
then stated that his “opinion of this, having written the report
and sort of reflected on it, [is] that it’s more likely that the
head injury itself wiped out his memory[,] which is a
common occurrence with head injuries.”
On cross-examination, the state jumped on McGill’s
statement to Dr. Lanyon that he had no recollection of the
robberies and Dr. Lanyon’s conclusion that such memory loss
was consistent with frontal lobe damage. The state
introduced two police reports and a pre-sentence report in
which McGill described the robberies in great detail. What
was unknown to Dr. Lanyon at the time was that defense
counsel had previously obtained the reports used to impeach
his testimony but chose not to disclose them to
Dr. Lanyon—a decision that set Dr. Lanyon up. After being
shown the reports counsel withheld from him, Dr. Lanyon
had the following exchange with the prosecutor:
Q: Does it appear from my reading of that
portion of the police report, Dr. Lanyon,
that Mr. McGill, in fact, had a memory of
the events which occurred during the
second robbery?
A: If that is accurate as you say, it appears
that he did.
MCGILL V. SHINN 47
....
Q: And it appears that he had no blackout or
amnesia at all which could be attributed to
a head injury?
A: Not at that time, correct.
The result was devastating to the conclusion counsel was
trying establish, and Schaffer later admitted “the lack of
corroboration contributed to Dr. Lanyon being discredited by
the State.”
The consequences of counsel’s decision to withhold the
pre-sentence reports from Dr. Lanyon may entice us to find
counsel’s preparation of Dr. Lanyon deficient. But we may
not second-guess counsel’s decision based on “the distorting
effects of hindsight.” Strickland, 466 U.S. at 689. If counsel
strategically withheld the reports after considering reasonable
alternatives, Strickland prohibits us from critiquing counsel’s
decision after the fact. Id. Such tactical decisions represent
“sound trial strategy” and are “virtually unchallengeable.”
See id. at 689, 690 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)). Despite the consequences of counsel’s decision
to withhold the pre-sentence reports from Dr. Lanyon, it was
a reasonable and tactical decision at that time.
At her PCR-stage testimony, Schaffer explained that she
purposefully withheld various pre-sentence reports to protect
McGill’s credibility with Dr. Lanyon. In particular, at the
time, counsel believed that, in connection with one of the
robberies, McGill had lied to a probation officer about having
a child that he needed to care for, an allegation that counsel
could not confirm. Counsel was concerned that if Dr. Lanyon
48 MCGILL V. SHINN
learned that McGill had been untruthful during the pre-
sentence process that it would harm his credibility with
Dr. Lanyon. As counsel saw it, she had two options, neither
of which was particularly good. She could disclose the pre-
sentence reports to Dr. Lanyon and risk destroying McGill’s
credibility with his only expert witness, or she could withhold
the reports in an effort to protect McGill’s credibility.
Counsel chose the latter, a decision that she characterized as
a “strategic decision on [her] part.”
This is precisely the type of tactical decision that
Strickland protects. 466 U.S. at 690–91. It is clear that
counsel did not take lightly the decision to withhold
information from Dr. Lanyon. In fact, counsel testified that
the decision to withhold the reports was not unanimous
among the defense team and that as lead counsel, she made
the ultimate decision to do so. That the defense team
discussed the benefits and potential consequences of not
disclosing the pre-sentence reports is strong evidence that
counsel’s decision was sound trial strategy. Although
counsel’s decision may have ultimately harmed the mitigation
effort, we cannot say that the decision fell outside “the wide
range of reasonable professional assistance.” Id. at 689. Had
Schaffer decided to provide Dr. Lanyon with the pre-sentence
reports, McGill may have had an even less effective case for
mitigation.
4. Evidence of substance abuse, sexual assault, and
domestic violence
McGill claims that counsel was ineffective in
investigating evidence of substance abuse, sexual assault and
domestic violence. Under Williams, counsel’s investigation
falls short if it was insufficient to uncover evidence that
MCGILL V. SHINN 49
reasonably should have been uncovered. See 529 U.S. at 396;
see also Porter v. McCollum, 558 U.S. 30, 40 (2009)
(granting relief where counsel ignored avenues of potential
mitigation evidence “of which he should have been aware”).
The PCR court concluded that the defense presented “a
substantial amount of mitigation” with respect to McGill’s
substance abuse, and his abusive relationship with Hardesty
was “thoroughly explored.” As for McGill’s claim that he
was sexually abused at Boysville, that was carefully reviewed
by the PCR court, which concluded that he “ha[d] failed to
substantiate his claim that he was sexually abused as a child.
Therefore his trial counsel was not ineffective for failing to
further investigate this potential mitigation.” In particular,
the PCR court found, as we have discussed, that McGill
himself “denied any such abuse.” The PCR court found that
counsel adequately investigated evidence of McGill’s
substance abuse history, prior sexual abuse, and domestic
violence. Here, the PCR court reasonably concluded that
counsel’s investigation met Williams’s standard.
a. Substance abuse history
We previously discussed PCR counsel’s interactions with
addictionologist Dr. Mace Beckson through the lens of
whether the PCR court relied on unreasonable determinations
of fact under § 2254(d)(2). We must now evaluate whether
counsel’s investigation into McGill’s drug-related mitigation
evidence was sufficient and whether her decision not to retain
a different addictionologist was reasonable. Although there
is some overlap between this claim and the § 2254(d)(2)
claim, here we focus on counsel’s performance rather than the
PCR court’s factual determinations. We start with counsel’s
investigation into McGill’s substance abuse history.
50 MCGILL V. SHINN
Counsel’s investigation into McGill’s substance abuse
history was thorough and expansive. The defense team
discovered and presented evidence of drug use spanning
decades of McGill’s life. Dr. Lanyon testified that McGill
began using alcohol at nine years old and progressed to
marijuana by thirteen. McGill eventually progressed to
chronic, daily methamphetamine use, which often caused
active paranoia, impaired his judgment, and interfered with
“any remaining fragment of ability to reason.” Dr. Lanyon’s
psychological evaluation also shed light on McGill’s drug use
in the weeks leading up to the crime. McGill actively used
methamphetamine and “had been awake for several days at
the time of the events with which he [was] charged.”
McGill’s brother, Cordell, supported Dr. Lanyon’s testimony,
stating that McGill and Hardesty used crystal
methamphetamine “all the time.”
Nevertheless, McGill contends that counsel’s
investigation into his prior drug use was objectively deficient.
He likens this case to Porter, where counsel “had only one
short meeting with Porter regarding the penalty phase” and
“did not obtain any of Porter’s school, medical, or military
service records or interview any members of Porter’s family.”
558 U.S. at 39 (“counsel did not even take the first step”).
The Court had little difficulty concluding that a “decision not
to investigate did not reflect reasonable professional
judgment.” Id. at 40. The investigation in McGill’s case
bears no resemblance whatsoever to the deficient
investigation in Porter.
Nor was counsel deficient for failing to retain an alternate
addictionologist. It is unclear exactly what additional
evidence McGill believes counsel would have uncovered had
she done so. After reviewing Dr. French’s PCR-stage report,
MCGILL V. SHINN 51
we are unconvinced that an alternate addictionologist would
have more effectively investigated or presented McGill’s
substance abuse history. McGill assumes that an
addictionologist would have more precisely attributed
McGill’s behavior to his drug use by testifying to the effects
that methamphetamine had on McGill. However,
Dr. French’s report suffers from the same ambiguity and
generalization as Dr. Lanyon’s trial testimony. Although
Dr. French listed more potential symptoms of
methamphetamine use than Dr. Lanyon, he did not link
McGill’s behavior to any particular one. Nor did he opine on
whether the type, amount, or concentration of
methamphetamine McGill was using could have influenced
McGill’s decision-making on the night of the crime. In the
end, the PCR court found that Dr. French’s conclusions were
“speculative” because, unlike Dr. Lanyon, Dr. French never
examined McGill. The PCR court, thus, reasonably
concluded that counsel conducted a thorough investigation of
McGill’s background and presented substantial evidence of
substance abuse to the jury.
b. Childhood sexual abuse
The PCR court similarly held that counsel adequately
investigated whether McGill suffered childhood sexual abuse.
Evidence of sexual assault can be particularly powerful at the
penalty stage due to its devastating and long-lasting effect on
the victim. See Wiggins, 539 U.S. at 534–35. Such evidence
is especially powerful when the abuse occurs regularly over
an extended period of time. Id.; Wharton, 765 F.3d at 977.
However, evidence of sexual assault does not always “tip the
scales” toward leniency. Wharton, 765 F.3d at 978. For
instance, we have denied relief where allegations of sexual
abuse were bare or unsupported, Schurz v. Ryan, 730 F.3d
52 MCGILL V. SHINN
812, 815 (9th Cir. 2013), or where it was unclear whether the
alleged sexual abuse actually occurred, Samayoa v. Ayers,
649 F.3d 919, 929 (9th Cir. 2011). We have also recognized
that even if evidence of sexual abuse may have made a
petitioner more sympathetic to a jury, it may also have the
unwanted effect of making him seem less likely to be
rehabilitated. Benson v. Chappell, 958 F.3d 801, 833 (9th
Cir. 2020).
The problem for McGill is that there is no reliable
evidence that he was sexually abused. The investigators did
not turn up any well-grounded evidence, and McGill did not
produce any such evidence for the PCR court. As the PCR
court found, McGill came forward with evidence that his
brother Lonnie had been abused at Buckner’s Boys Ranch,
but no one could testify that McGill had. And given that
McGill had denied to Dr. Lanyon that he was sexually
abused, there was nothing for counsel to investigate. Under
any standard, “counsel is not deficient for failing to find
mitigating evidence if, after a reasonable investigation,
nothing has put the counsel on notice of the existence of that
evidence.” Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th
Cir. 1998) (quoting Matthews v. Evatt, 105 F.3d 907, 920 (4th
Cir. 1997), abrogated on other grounds by Miller-El v.
Dretke, 545 U.S. 231 (2005)).
Nevertheless, McGill argues that two red flags should
have prompted reasonable counsel to investigate further:
Lonnie’s childhood sex abuse and McGill’s placement in
foster care. But neither piece of evidence renders counsel’s
investigation unreasonable. Evidence that Lonnie was
sexually assaulted in a boy’s home did not mean that McGill
was also sexually assaulted there. For instance, a second
brother, Cordell, testified during the penalty phase that he had
MCGILL V. SHINN 53
not suffered any type of sexual abuse at either Boysville or
Buckner’s and was unaware of whether McGill suffered such
abuse. Further, investigating sexual abuse in McGill’s past
on the basis of Lonnie’s allegations of abuse would have been
particularly difficult because Lonnie was uncooperative and
“absolutely refused” to come to court.
Second, the fact of foster-care placement is not itself
indicative of sexual abuse. McGill points to Wiggins for
support, but it does not stand for such a broad proposition.
There, the Court granted relief in part based on counsel’s
failure to uncover reasonably available evidence of Wiggins’s
“repeated rape during his . . . years in foster care.” Wiggins,
539 U.S. at 535. Nothing in Wiggins suggests a categorical
imperative that counsel thoroughly investigate the possibility
of sexual abuse for every capital defendant who has been
placed in state care. Moreover, even if Wiggins did create
some duty of inquiry, it does not stand for the proposition that
counsel must continue to investigate sexual abuse after the
defendant’s express denial that such abuse ever occurred.
Thus, Wiggins is not the “clearly established Federal law”
that would require counsel to perform additional investigation
into a claim of abuse that McGill’s family did not disclose
and that he actively denied.
In any event, we are unsure what more Schaffer should
have done to investigate McGill’s alleged sexual abuse. The
defense team performed several interviews with McGill’s
family, but no one mentioned sexual abuse. Counsel retained
Dr. Lanyon who probed McGill on any childhood abuse, but
McGill denied suffering sexual abuse. Counsel requested
several records from the boy’s homes where McGill was
placed, but the records did not include details of sexual abuse.
After performing such a thorough investigation, we see
54 MCGILL V. SHINN
nothing that should have placed counsel on notice of the
abuse or demanded further investigation. Thus, the PCR
court reasonably concluded that counsel was not deficient for
failing to conduct additional investigation into sexual abuse.
c. Domestic violence
The PCR court concluded that counsel presented adequate
evidence of McGill’s relationship with Hardesty to portray
her effect on him and that counsel was not ineffective for
failing to retain a domestic violence expert to explain the
McGill-Hardesty relationship. These conclusions were
reasonable.
Counsel left the jury little doubt that Hardesty was
psychotic and abusive. During closing arguments, counsel
characterized the relationship as “codependent” and “sick”
and opined that Hardesty was “crazy.” Counsel also
explained McGill’s apparent weakness for Hardesty, stating
that McGill “simply cope[d] with her psychoses, her
addictive behaviors and her serious mental and physical
abuse.” Dr. Lanyon and several of McGill’s family members
echoed those statements during the penalty phase.
Dr. Lanyon added that McGill was uniquely susceptible to
Hardesty’s manipulation as a result of the deep-seated
psychological wounds left by his mother. And even McGill’s
mother testified that Hardesty was “one of the most evil
people” she had ever met. Indeed, the PCR court aptly noted
that Hardesty’s influence on McGill was, in part, “the focus
of the mitigation [case].”
There is no indication that a domestic violence expert
would have better conveyed that mitigation evidence to the
jury. McGill speculates that an expert would have more
MCGILL V. SHINN 55
effectively explained the effects of Hardesty’s domestic
violence, but he does not provide any expert report,
declaration, or other evidence to support that speculation.
That none of McGill’s witnesses used the words “domestic
violence” does not detract from the clarity with which they
described Hardesty’s effect on McGill. The PCR court
reasonably found that counsel performed an adequate
investigation into Hardesty’s abuse and McGill’s unhealthy
reliance on her.
5. Failure to Explain Adequately McGill’s Prior Armed
Robbery Convictions
McGill argues that Schaffer should have presented the
circumstances surrounding his prior armed robbery
convictions in a way that would have softened the convictions
to the jury and that her failure to do so was ineffective
assistance of counsel. The PCR court saw “no merit” in the
claim and held that McGill “[did] not contest the validity of
this prior conviction” as an aggravator. His claim that “his
alleged brain damage” affected its commission was
“speculative and not substantiated by any of the exhibits.”
McGill’s armed robbery convictions constituted statutory
aggravating factors under Ariz. Rev. Stat. § 13-703(F)(2).
Counsel attempted to soften the impact of the robberies as
aggravators. Dr. Lanyon also gave the jury insight into
McGill’s state of mind at the time, testifying that he was
essentially homeless, “living hand to mouth,” and drinking
heavily.9
9
The PCR court did commit one clear error in its explanation of who
communicated the details of McGill’s robbery to the jury. The court
found:
56 MCGILL V. SHINN
McGill now argues that counsel failed to investigate his
brain damage and explore how it might have contributed to
his robberies. He points to PCR testimony from Dr. Wu and
Dr. Rosengard. We have previously discussed their
testimony in connection with the causal-nexus test. See
Part III.A.1.c. We will not repeat our analysis, except to note
that the PCR court concluded that, at best, their testimony
would have added little to Dr. Lanyon’s testimony and, at
worst, “would have been an opening for the State to poke
holes in the mitigation and would have hurt the defense’s
presentation.” These findings are not unreasonable.
***
Further, [McGill] recounted his prior crimes in detail
on cross-examination (as he did to the presentence
writer), undermining any claim that he blacked out or
could not recall his crimes.
McGill neither testified, nor was he cross-examined at trial, rendering that
portion of the PCR court’s factual findings verifiably false. McGill seizes
on that error to argue that the PCR court’s ultimate conclusion relied upon
an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2).
Nothing, however, turned on whether McGill testified in court that he
could not recall the robberies or told the presentence report writer that he
could not recall the crimes.
The PCR court’s error merely misrepresented the medium by which
the jury received McGill’s statements—not the statements themselves.
Rather than McGill making those statements on cross-examination as the
PCR court incorrectly stated, the prosecutor introduced McGill’s prior
statements during Dr. Lanyon’s cross-examination. That does not change
the fact that the jury heard McGill’s own statements recounting the details
of the robberies. The PCR court acknowledged as much when it noted
that McGill also recounted the details to a pre-sentence writer. Thus, the
PCR court’s conclusion was reasonable despite its slip of the pen.
MCGILL V. SHINN 57
McGill has not shown that counsel performed deficiently
under Strickland at the penalty phase of his trial. The PCR
court reasonably concluded that counsel’s preparation,
investigation, and presentation of mitigation evidence was
thorough and reasoned. As a whole, the defense team
uncovered a “not insignificant” amount of mitigation
evidence that spanned decades of McGill’s life and presented
a comprehensive picture to the jury. See McGill I, 140 P.3d
at 945. Conversely, there is no evidence that counsel failed
to uncover any reasonably available mitigation records. We
therefore conclude that counsel’s performance was not
objectively deficient in light of the prevailing professional
norms. Because counsel’s trial performance was adequate,
we do not reach McGill’s claims of prejudice. See Strickland,
466 U.S. at 697.
IV. UNCERTIFIED CLAIMS
We now turn to the two claims that the district court did
not certify for appeal: that counsel was ineffective at the guilt
phase by failing to retain an expert arson investigator; and
that his death sentence violated the Ex Post Facto Clause.
We must consider whether McGill has made the
necessary showing of a constitutional deprivation to warrant
a certificate of appealability on any of his claims. As we
have previously set out, habeas petitioners cannot appeal the
denial of a § 2254 petition without first obtaining a certificate
of appealability. See 28 U.S.C. § 2253(c)(1); Miller-El I,
537 U.S. at 327, 335–36. To proceed, McGill must
demonstrate a “substantial showing” that he suffered a
deprivation of a constitutional right. 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). He meets
that standard if reasonable jurists “could disagree with the
58 MCGILL V. SHINN
district court’s resolution of his [case] . . . or that . . . the
issues presented are adequate to . . . proceed further.” Miller-
El I, 537 U.S. at 327. Applying that standard, we deny a
certificate of appealability on McGill’s ineffective assistance
claim at the guilt phase. We grant a certificate of
appealability on McGill’s ex post facto claim but deny relief
on the merits.
A. Ineffective Assistance at the Guilt Phase for Failure to
Hire an Arson Expert
This claim is unique among McGill’s ineffective
assistance claims as it is the only claim challenging counsel’s
performance at the guilt stage. McGill argues that counsel
was deficient for failing to retain an arson expert at trial to
rebut the state’s evidence that McGill mixed styrofoam into
the gasoline before dousing Perez and Banta. McGill did not
raise this claim in his state PCR petition, however, resulting
in the claim being procedurally defaulted. See Martinez v.
Ryan, 566 U.S. 1, 9 (2012); Coleman v. Thompson, 501 U.S.
722, 753–54 (1991). To cure the default, McGill also argues
that PCR counsel performed deficiently by failing to raise this
claim before the PCR court.
Martinez announced a possible, narrow exception in
cases, like this one, where the alleged cause of a procedural
default is the ineffective assistance of PCR counsel. To cure
the default, a petitioner must show that PCR counsel was
ineffective under Strickland and that the underlying
ineffective assistance claim is “substantial . . . which is to say
that . . . the claim has some merit.” Martinez, 566 U.S. at 14(citation omitted). The analysis of a claim’s substantiality
mirrors the standard for issuing a certificate of appealability,
see id.–namely, whether “reasonable jurists would find” the
MCGILL V. SHINN 59
denial of relief “debatable or wrong.” See Miller-El I,
537 U.S. at 338 (citation omitted). Martinez thus created a
layered analysis in which we must determine (1) whether
PCR counsel was ineffective under Strickland—with its own
two-part test—for failing to raise the underlying claim and
(2) whether the underlying claim “has some merit.” 566 U.S.
at 14.
Reasonable jurists would find it undebatable that McGill
has not satisfied Martinez because counsel’s decision not to
call an arson witness was reasonable under Strickland.
McGill makes much out of witness testimony that he mixed
styrofoam into the gasoline to make it more difficult for Perez
and Banta to extinguish the flames. He assumes that, had
counsel more effectively rebutted that testimony, the jury
would not have found that he committed the crime in an
especially cruel manner. But the state’s reliance on the
styrofoam testimony was inconsistent at best. Two state
witnesses testified that McGill told them that he mixed
styrofoam into the gas, which created a sticky “napalm-like”
substance. On the other hand, the state’s own experts
discounted the styrofoam testimony. The state’s expert arson
investigator, for example, testified that he found no evidence
of styrofoam at the scene and was unsure whether the mixture
McGill described was even possible. The state’s expert
criminologist similarly testified that he would expect to find
high concentrations of styrene at the scene had McGill used
styrofoam but that he did not find above-average amounts of
styrene in his testing. Whether McGill actually put styrofoam
in the container of gasoline or merely said he did so is unclear
as evidenced by the state’s own experts. It was reasonable for
counsel not to retain an arson expert to rebut that testimony.
Such rebuttal would only have emphasized the disputed fact
to the jury.
60 MCGILL V. SHINN
Moreover, reasonable jurists would not find it debatable
that counsel’s failure to retain an arson expert did not
reasonably influence whether the jury would find that McGill
committed this crime in an especially cruel manner. As both
the Arizona Supreme Court and the district court noted, a
crime is especially cruel “if the victim consciously
experienced physical or mental pain prior to death, and the
defendant knew or should have known that suffering would
occur.” See McGill I, 140 P.3d at 938 (citation omitted).
Any reasonable defendant would know that dousing two
people in gasoline and lighting them on fire would
“necessarily cause[] . . . tremendous suffering.” Id. Indeed,
before Perez succumbed to his burns, he “scream[ed] in pain”
and pleaded with nurses to “[g]et the pain away.” Id. at 934.
No reasonable jurist would conclude that the essential cruelty
of McGill’s crime in this case would turn on whether he did
or did not mix styrofoam into the gasoline before igniting his
victims. We therefore deny a certificate of appealability on
this issue.
B. McGill’s Death Sentence and the Ex Post Facto Clause
We turn, finally, to whether McGill’s death sentence
violated the Ex Post Facto Clause. In Ring v. Arizona,
536 U.S. 584 (2002) (Ring I), the Supreme Court invalidated
Ariz. Rev. Stat. § 13-703(C) (2001) because it required the
sentencing judge—not the jury—“to find an aggravating
circumstance necessary for imposition of the death penalty.”
536 U.S. at 609. Perez’s murder fell within the brief period
between Ring I and Arizona’s amendment of § 13-703. On
direct appeal to the Arizona Supreme Court, McGill argued
that Arizona lacked a valid procedure to sentence him to
death at the time he committed his crime, in violation of the
Ex Post Facto Clause. The Arizona Supreme Court denied
MCGILL V. SHINN 61
relief, stating only that it had already rejected the argument.
See McGill I, 140 P.3d at 945 (citing State v. Ring, 65 P.3d
915, 928 (Ariz. 2003) (en banc) (Ring II)). We believe that
reasonable jurists could find debatable whether Arizona’s
death-sentencing process violates the Ex Post Facto Clause,
and we therefore grant a certificate of appealability as to this
issue. We conclude, however, that the Arizona Supreme
Court reasonably applied clearly established federal law when
it determined that Arizona had only made a procedural
change to its death penalty process, and that change did not
violate the Ex Post Facto Clause. See Ring II, 65 P.3d
at 926–28.
A brief review of the timeline is helpful to frame
McGill’s argument. In the years leading up to Perez’s
murder, two separate statutory provisions codified the state’s
use and imposition of the death penalty: “availability”
provisions and “procedural” provisions. The availability
provisions specified what offenses were eligible for death and
what aggravating factors were necessary to make that penalty
available as punishment in a given case. Thus, Ariz. Rev.
Stat. § 13-1105 (2001), stated that “[f]irst degree murder is a
class 1 felony and is punishable by death or life imprisonment
as provided by [Ariz. Rev. Stat.] section 13-703,” and Ariz.
Rev. Stat. § 13-703(G) (2001) listed the statutory aggravating
circumstances that would make the death penalty available
for a particular offender convicted of first degree murder.
The procedural provisions, which were contained in the
remaining provisions of § 13-703, outlined the procedure by
which a death sentence was imposed. They allocated the
burden of proof and provided for the broad admissibility of
mitigating evidence. Id. § 13-703(B)–(F). Importantly, and
relevant here, § 13-703(C) reserved for the “court alone” the
duty to “make all factual determinations” regarding
62 MCGILL V. SHINN
aggravation and mitigation evidence to determine whether to
impose a capital sentence. Ring I, 536 U.S. at 592–93 (citing
Ariz. Rev. Stat. § 13-1105(C)); see also Ariz. Rev. Stat. § 13-
703(F) (2001) (“court . . . shall impose a sentence of death if
the court finds one or more of the aggravating circumstances
enumerated in subsection G of this section and then
determines that there are no mitigating circumstances
sufficiently substantial to call for leniency”).
In June 2002, the Court held unconstitutional the relevant
portions of § 13-703(C) and § 13-703(F) under the Sixth
Amendment, concluding that the right to a jury trial required
the jury “to find an aggravating circumstance necessary for
imposition of the death penalty.” Id. at 609 (overruling
Walton v. Arizona, 497 U.S. 639 (1990), in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000)). Thirty-eight days after
Ring I, Arizona amended § 13-703 to require the “trier of
fact” to “find[] one or more of the aggravating circumstances
enumerated in subsection F” and to weigh any such
aggravating factors against the mitigating circumstances in
deciding whether to impose a capital sentence. See Ariz.
Rev. Stat. § 13-703(E) (2002). McGill murdered Perez
during that thirty-eight-day interregnum. He argues that
Arizona lacked a valid death penalty when he committed his
crime, and that Arizona’s law curing the Ring I defect
violates the Ex Post Facto Clause.
The Ex Post Facto Clause provides that “No State shall
. . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10,
cl. 1. It prohibits a state from retroactively changing the
definition of a crime to make formerly innocent behavior
illegal or increasing the punishment for criminal acts. See
Collins v. Youngblood, 497 U.S. 37, 42–43 (1990); see also
Dobbert v. Florida, 432 U.S. 282, 292 (1977); Beazell v.
MCGILL V. SHINN 63
Ohio, 269 U.S. 167, 169–70 (1925); Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390 (1798) (opinion of Chase, J.). The
Supreme Court has set out three factors to determine whether
a challenged law was issued ex post facto. First, the law must
be retrospective, meaning that it applies to actions that pre-
date its enactment. Miller v. Florida, 482 U.S. 423, 430
(1987) (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)).
Second, application of the new law must disadvantage the
defendant. Id. Third, the law must affect the defendant’s
substantial rights such that it alters “the quantum of
punishment.” Weaver, 450 U.S. at 33 (quoting Dobbert,
432 U.S. at 293–94). Mere procedural changes that “simply
alter[] the methods employed in determining [a sentence]” do
not affect substantial rights because they do not change the
“quantum of punishment attached to the crime.” Dobbert,
432 U.S. at 293–94 (citing Hopt v. Utah, 110 U.S. 574,
589–90 (1884)). This is so even if the procedural change
disadvantages the defendant. Id. at 293.
In Ring II, the Arizona Supreme Court held that Arizona’s
amended procedural statute did not violate the Ex Post Facto
Clause of the U.S. Constitution. In that case, the Arizona
high court consolidated the appeals of the thirty-one death-
row inmates who were unconstitutionally sentenced under the
state’s prior version of § 13-703. See Ring II, 65 P.3d at 925.
The court found two U.S. Supreme Court cases “particularly
instructive.” Id. at 927.
The first of these was Dobbert v. Florida, 432 U.S. 282(1977). In that case Dobbert was accused of brutally
murdering his own children in 1971 and 1972. Under the law
in effect at the time, Florida required imposition of the death
penalty for capital crimes unless the jury recommended
mercy. The jury’s recommendation was binding on the
64 MCGILL V. SHINN
judge. Id. at 287–88. After Dobbert committed his crimes,
but before he could be tried, the U.S. Supreme Court struck
down Georgia’s death penalty statute in Furman v. Georgia,
408 U.S. 238 (1972). Weeks later the Florida Supreme Court,
citing Furman, held that Florida’s death penalty statute was
similarly unconstitutional. Dobbert, 432 U.S. at 288 (citing
Donaldson v. Sack, 265 So. 2d 499 (Fla. 1972)). Later that
same year, the Florida legislature amended its death penalty
statute to comply with Furman. The new statute provided
that once a defendant was found guilty of a capital felony, the
court must hold a separate hearing to consider aggravating
and mitigating evidence. The jury would make a
recommendation, which was not binding on the judge, and
the judge would issue written findings of fact if imposing a
death sentence. Id. at 290–92. Dobbert was tried under the
new statute. The jury recommended a life sentence, but the
trial court—under its authority under the revised Florida
statute—overruled the jury and sentenced Dobbert to death.
Id. at 287.
Dobbert argued that his rights under the Ex Post Facto
Clause were violated by the change in Florida law. Under the
Florida law in effect when he committed his crimes, the
jury’s recommendation of life would have been binding on
the trial judge; under the new law, Dobbert got the death
penalty. Dobbert raised two claims under the Ex Post Facto
Clause that are relevant here. First, he alleged that Florida
had altered the roles of the judge and jury and that he was
entitled to proceed under the prior law. The Court rejected
this argument. “Even though it may work to the disadvantage
of a defendant, a procedural change is not ex post facto.” Id.
at 293. The Court found that “the change in the [Florida]
statute was clearly procedural. The new statute simply
altered the methods employed in determining whether the
MCGILL V. SHINN 65
death penalty was to be imposed; there was no change in the
quantum of punishment attached to the crime.” Id. at 293–94.
The Court also took into account that “not only was the
change in the law procedural, it was ameliorative”—the
change was to deal with Furman—and it was not clear that
the new law was “more onerous than the prior law.” Id. at
294.
Dobbert also argued that because the statute in effect in
Florida when he murdered his children was unconstitutional,
“there was no death penalty ‘in effect’ in Florida.” Id. at 297.
The Court termed this argument “sophistic” and “highly
technical,” “mock[ing] the substance of the Ex Post Facto
Clause.” Id. For the Court, “[w]hether or not the old statute
would in the future, withstand constitutional attack, it clearly
indicated Florida’s view of the severity of murder and of the
degree of punishment which the legislature wished to impose
upon murderers.” Id.10 The statute’s “existence on the statute
books provided fair warning” to Dobbert. Id.; see also id.
at 303 (Burger, C.J., concurring) (“Petitioner was at least
constructively on notice that this penalty might indeed follow
his actions.”).
10
We note that the U.S. Supreme Court initially upheld the
constitutionality of Florida’s 1972 revised sentencing process, see Proffitt
v. Florida, 428 U.S. 242 (1976), but it later invalidated the procedure
under the Sixth Amendment, Hurst v. Florida, 577 U.S. 92, 98–99 (2016)
(citing Ring I, 536 U.S. at 597). Florida’s procedure was deficient
because it did not require the jury to make “specific factual findings with
regard to the existence of mitigating or aggravating circumstances[,] and
its recommendation [was] not binding on the trial judge.” Hurst, 577 U.S.
at 99 (citation omitted). Arizona’s amended sentencing procedure, on the
other hand, required the jury to make those crucial findings of fact and
makes the jury’s determination final. See Ariz. Rev. Stat. § 13-703(E)
(2002).
66 MCGILL V. SHINN
The second case the Arizona Supreme Court looked to
was Collins v. Youngblood, 497 U.S. 37 (1990). In Collins,
the defendant was convicted of aggravated sexual abuse. He
was sentenced to life and fined $10,000. Collins filed in state
court for a writ of habeas corpus on the grounds that the
statute did not authorize a fine, and thus his sentence was
void and he should be given a new trial. Before his habeas
petition was reviewed, the Texas legislature adopted a statute
allowing an appellate court to reform an improper sentence
assessing a fine not authorized by law. Id. at 39–40. The
Texas Court of Criminal Appeals ordered his fine deleted
from his sentence and refused his request for a new trial. The
U.S. Supreme Court held that the Texas statute did not run
afoul of the Ex Post Facto Clause: it “[did] not punish as a
crime an act previously committed, which was innocent when
done; nor make more burdensome the punishment for a
crime, after its commission.” Id. at 52.
Relying on Dobbert and Collins, the Arizona Supreme
Court thought it clear that “rights secured by the Sixth
Amendment jury trial right, the right at issue here, are
inherently procedural” and that “[t]he new sentencing statutes
alter the method used to determine whether the death penalty
will be imposed but make no change to the punishment
attached to first degree murder.” Ring II, 65 P.3d at 928. As
a consequence, Arizona’s new sentencing statute did not
violate the Ex Post Facto Clause of the U.S. Constitution. Id.McGill’s case was not part of the cases consolidated in
Ring II because unlike those defendants, McGill was
sentenced under a constitutional version of Ariz. Rev. Stat.
§ 13-703. Nevertheless, the Arizona Supreme Court
reviewed his case separately and found that it was governed
by its decision in Ring II. McGill I, 140 P.3d at 945. McGill
MCGILL V. SHINN 67
argues that he is in a different position from the defendants in
Ring II. The defendants sentenced before Ring I had notice
of both the availability of the death penalty and the procedure
by which the sentence would be imposed, even though that
procedure was later held inconsistent with the Sixth
Amendment. McGill, on the other hand, claims he had only
half the puzzle, as § 13-703 had been invalidated by the U.S.
Supreme Court just three weeks before McGill committed his
crime. McGill claims that he was in limbo. According to
McGill, § 13-1105(C) put him on notice that “[f]irst degree
murder . . . [was] punishable by death . . . as provided by
section 13-703,” Ariz. Rev. Stat. § 13-1105 (2001), but there
was no procedure by which he could be tried and sentenced
to death until § 13-703 was re-implemented weeks after his
crime. It is on that basis that McGill argues there was no
functioning death penalty statute in place at the time he
committed murder.
Although we recognize the different position that McGill
is in, we are not persuaded that McGill is entitled to relief
under AEDPA. And we wish to be very clear about our role
here. On AEDPA review, we may not grant relief unless the
Arizona Supreme Court’s application of federal law was
flawed “beyond any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103. Even if we thought the Arizona
Supreme Court’s conclusion was wrong under the Ex Post
Facto Clause as a matter of first impression, we could not
issue relief. Rather, we can only review the decision to
determine if it is an unreasonable application of Dobbert and
Collins.
As the Court held in Dobbert, the existence of § 13-
1105(C) when McGill murdered Perez was likewise an
“operative fact” that gave fair warning to McGill that Arizona
68 MCGILL V. SHINN
could seek the death penalty if he was convicted of first-
degree murder. 432 U.S. at 298. McGill was on full notice
that Arizona could punish him for murder with death or life
imprisonment. The fact that § 13-1105(C) cross-referenced
§ 13-703’s procedural requirements does not detract from
Arizona’s “view of the severity of murder” and “the degree
of punishment which the legislature wished to impose upon
murderers.” Dobbert, 432 U.S. at 297. Moreover, the 2002
amendments did not alter the pre-existing enumeration of
statutory aggravating factors that was contained in § 13-
703(G) (which was reclassified as § 13-703(F)). McGill thus
received “fair warning as to the degree of culpability which
the State ascribed to the act of murder.” Id. There was no
retroactive change in the penalty for his crime.
Furthermore, the Arizona Supreme Court reasonably
concluded in light of Dobbert that the amendments to § 13-
703 are plainly procedural, not substantive. Ring I did not
invalidate the death penalty in Arizona. It held that Arizona
could not confer on the judge the duty to find sufficient
aggravating factors necessary for the imposition of the death
penalty. Ring I, 536 U.S. at 609. Arizona’s change to § 13-
703 affected the allocation of responsibility between judge
and jury, and that makes it analogous to the change Florida
made to its system in Dobbert. See 432 U.S. at 293–94. And
because Arizona was responding to Ring I, its change was
“ameliorative,” just as Florida’s amendment responded to
Furman. Id. at 294. Arizona did not impose a penalty that
was previously unavailable, nor did the state criminalize
innocent conduct after the fact. The state “simply altered the
method[] employed in determining whether the death penalty
was to be imposed.” Id. at 293–94. As a consequence,
McGill’s substantial rights have not been affected. Such
procedural changes fall outside the protections of the Ex Post
MCGILL V. SHINN 69
Facto Clause. Id. at 296–97; see Styers v. Ryan, 811 F.3d
292, 297 (9th Cir. 2015) (“The rule announced in Ring [I],
under which capital defendants are entitled to a jury
determination of any fact on which the legislature conditions
an increase in their maximum punishment . . . is a procedural
rule that applies to capital defendants on direct review.”
(cleaned up)).
Our dissenting colleague takes a different view of the
privilege or immunity against ex post facto laws. We have
three observations. First, although the dissent briefly refers
to AEDPA, Dissenting Op. at 80, 82, the dissent makes no
serious effort to engage with AEDPA’s standard. The dissent
cited only the general test for ex post facto inquiries, id.at 79–80, conducted a de novo review for that test, id.at 79–83, and pronounced the Arizona Supreme Court’s
decision unreasonable, id. at 80, 82. The Supreme Court has
previously reversed us for conducting precisely this kind of
analysis. Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560 (2018)
(per curiam) (“The Ninth Circuit essentially evaluated the
merits de novo, only tacking on a perfunctory statement at the
end of its analysis asserting that the state court’s decision was
unreasonable.”). Such analysis is “fundamentally
inconsistent with AEDPA.” Shinn v. Kayer, 141 S. Ct. 517,
523 (2020) (per curiam) (citing Beaudreaux, 138 S. Ct.
at 2560). Second, the Court has made clear that we are to
conduct AEDPA review of state court judgments, not at the
highest level of abstraction, but at the lowest. It is not
sufficient for purposes of AEDPA to cite a general rule;
rather, the Supreme Court must have “squarely addresse[d]”
the issue. Wright v. Van Patten, 552 U.S. 120, 125 (2008);
see Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“The
more general the rule, the more leeway [state] courts have in
reaching outcomes in case-by-case determinations.”). We
70 MCGILL V. SHINN
identified two cases—Collins and Dobbert, which were also
identified and addressed by the Arizona Supreme Court—as
the closest factually to McGill’s case. The dissent does not
really grapple with either case, but dismisses Collins and
Dobbert perfunctorily. Dissenting Op. at 82, 84. With all
respect, that is not AEDPA review.11
Third, the dissent’s analysis of the Ex Post Facto Clause
is interesting and novel—to be sure, not grounds for granting
habeas under AEDPA—but, we think, not sound. The
dissent’s principal point is that “McGill could not have been
sentenced to death for murder when he committed his crimes
because at that time there was no statute implementing the
death penalty in Arizona.” Dissenting Op. at 78 (emphasis
added); see also id. at 80 (“There was no law that permitted
McGill to be punished with a death sentence during the thirty-
eight days between Ring I and the re-enactment of § 13-
703.”); id. at 81 (“[McGill was] on notice that he could not be
sentenced to death for first-degree murder.”); id. at 84
11
The dissent states, for example, that “Here, the issue is whether the
change from no possibility of the death penalty to possibility of the death
penalty was procedural or substantive.” Dissenting Op. at 82. The best
answer to that question comes from Dobbert, in which the Court said that
a statute that “simply altered the methods employed in determining
whether the death penalty was to be imposed” was procedural because
there was “no change in the quantum of punishment attached to the
crime.” Dobbert, 432 U.S. at 293–94. The dissent ignores the Court’s
analysis.
The dissent’s argument that “By the time of McGill’s sentencing, the
Arizona legislature had increased the risk of a death sentence for conduct
that had already taken place,” Dissenting Op. at 84, has likewise been
answered by Dobbert. Dobbert argued that when he committed his crime,
“there was no death penalty ‘in effect’ in Florida.” Dobbert, 432 U.S.
at 297. The Court thought this argument “sophistic.” Id.MCGILL V. SHINN 71
(“There was no risk that McGill would be sentenced to death
for his crimes at the time they were committed . . . .”). And
the dissent spins an interesting, creative counterfactual in
which the Arizona legislature delays for years in fixing the
Ring I problem. Dissenting Op. at 83. We are puzzled by
this analysis, because we are not aware of anything in Ex Post
Facto Clause jurisprudence that turns on whether, at the time
the crime was committed, the proper procedures are in place
to impose, at trial, the sentence of death that the substantive
statute then authorizes as a punishment for the conduct that
the defendant committed. McGill was plainly on notice that
his conduct was punishable by death when he murdered Perez
on July 13, 2002. The dissent’s whole case for issuing the
writ rests on the premise that, due to the declared invalidity
of Arizona’s capital sentencing procedure on the day he
committed his crime, McGill could not have received his
sentence if (in a remarkable and likely unconstitutional act of
very swift justice) his trial had taken place later that same
day. The dissent thus assumes that the protection of the Ex
Post Facto Clause extends to the particular procedures that
would be lawfully available to any sentencing conducted on
the date of the offense, but that view seems difficult to square
with Dobbert’s statement that “[e]ven though it may work to
the disadvantage of a defendant, a procedural change is not ex
post facto.” 432 U.S. at 293. Here, as in Dobbert, “[t]he new
statute simply altered the methods employed in determining
whether the death penalty was to be imposed; there was no
change in the quantum of punishment attached to the crime.”
Id. at 293–94.
We are not sure why the question of sentencing is the
relevant inquiry. The dissent claims we have “invented [a]
distinction between a law authorizing a ‘punishment’ and a
law authorizing a ‘sentence.’” Dissenting Op. at 83 n.4. The
72 MCGILL V. SHINN
dissent claims that there is no difference: “the punishment is
the sentence.” Id.12 The line Arizona has drawn between the
punishment prescribed for a crime and the procedure by
which one can be convicted and sentenced is one that has
been around for a long time. See Wayne R. LaFave, Jerold H.
Israel & Nancy J. King, Criminal Procedure 24 (4th ed.
2004) (“‘Legal procedure,’ Roscoe Pound long ago noted, ‘is
a means, not an end; it must be made subsidiary to the
substantive law as a means of making that law effective in
action.’”). The dissent’s argument marries the procedure and
the substantive law for Ex Post Facto purposes—it concludes
that because Arizona lacked a constitutional statutory scheme
for imposing the sentence, there was no death penalty.13
12
The dissent is playing fast and loose with its terms. Nothing in the
substantive law changed for McGill—his crime was defined as punishable
by death on the day he committed it and on the day he was sentenced. All
that changed was the process by which his sentence was to be determined,
and McGill was tried, convicted, and sentenced consistent with the U.S.
Constitution. That puts McGill’s case squarely within Dobbert: “not only
was the change in the law procedural, it was ameliorative” and it was
“[not] more onerous than the prior law.” Dobbert, 432 U.S. at 294. To
paraphrase the dissent, “the later penalty imposed [on McGill] was the
same penalty that could have been imposed at the time of [McGill’s]
offense.” Dissenting Op. at 84.
13
The dissent assumes that if the Arizona legislature had not
responded so promptly to Ring I, the Arizona courts could not have
complied with the dictates of the Sixth Amendment for death-eligible
defendants, consistent with Ring I. See Dissenting Op. at 83. What
principle of Arizona law would prevent Arizona courts from complying
with Ring I, even if the legislature had not amended the statute? The
dissent has made a huge assumption about how Arizona law works,
including state separation of powers principles. We are not sure why the
dissent gets to decide such matters.
MCGILL V. SHINN 73
The Supreme Court might well agree with our colleague
in the future, but on AEDPA review, we do not get to create
new ex post facto law and then issue habeas on that basis.
Edwards v. Vannoy, 141 S. Ct. 1547, 1554 (2021); Teague v.
Lane, 489 U.S. 288, 310 (1989) (plurality opinion).
***
We need not go so far as to decide that Arizona’s new
scheme is consistent with the Ex Post Facto Clause. We are
not called upon to predict whether the Supreme Court would
have upheld McGill’s conviction and sentence had it granted
certiorari review from the judgment of the Arizona Supreme
Court on direct appeal. We only decide that the Arizona
Supreme Court’s understanding of the Ex Post Facto Clause,
which it based on its review of Dobbert and Collins, is not
unreasonable.14 If we are to take seriously the Court’s
declaration that “an unreasonable application of federal law
is different from an incorrect application of federal law,”
Richter, 562 U.S. at 101 (citation omitted), we cannot say that
14
We note that the standard for granting the COA on this issue
requires only that we determine that “jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El I, 537 U.S. at 327. We are
fully satisfied of the fairmindedness of our dissenting colleague, and so we
have granted the COA.
In order to grant habeas, however, our colleague must be persuaded
that no “fairminded jurist could take a different view,” Kayer, 141 S. Ct.
at 525, that is, that the constitutional error was “well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement,” Richter, 562 U.S. at 103. Our colleague has not returned
the favor.
74 MCGILL V. SHINN
the Arizona Supreme Court’s decision was an unreasonable
one.
V. CONCLUSION
The judgment of the district court is AFFIRMED.
COLLINS, Circuit Judge, concurring:
I concur in Judge Bybee’s opinion, including its
conclusion that, under Browning v. Baker, 875 F.3d 444 (9th
Cir. 2017), the district court erred in limiting its grant of a
certificate of appealability (“COA”) to only one claim
concerning whether McGill’s trial counsel was ineffective at
the penalty phase. See Opin. at 16. Browning held that, in
deciding whether to grant a COA with respect to challenges
to the adequacy of counsel at a particular phase, a district
court should not “separat[e]” the ineffective assistance
“argument into individual ‘claims’ of [ineffective assistance]
corresponding to particular instances of [the attorney’s]
conduct.” 875 F.3d at 471. Rather, the ineffective assistance
“portion of the COA should [be] crafted at a higher level of
generality.” Id. We have construed Browning to require a
COA concerning an ineffective assistance claim to extend to
all other properly preserved challenges to counsel’s
effectiveness at the same phase. See White v. Ryan, 895 F.3d
641, 645 n.1 (9th Cir. 2018) (following Browning in holding
that, because “White has but a single claim regarding his right
to the effective assistance of counsel at the penalty phase of
resentencing,” the district court committed “error” by failing
to issue a COA covering additional portions of White’s
ineffective assistance claim concerning sentencing). Judge
MCGILL V. SHINN 75
Bybee’s opinion faithfully applies this precedent, and I join
it in full.
I write separately only to note that, on this point,
Browning seems to me to be plainly incorrect. Browning
based its holding on two premises: (1) under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
a COA may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2); and (2) because the underlying
constitutional right at issue—the effective assistance of
counsel—requires consideration of counsel’s performance “as
a whole,” all asserted errors of counsel at a particular phase
of the proceedings must be considered. 875 F.3d at 471
(emphasis omitted). The second premise is, I think, contrary
to the statute and to common sense.
Browning failed even to mention § 2253(c)(3), which
states that any COA that is issued “shall indicate which
specific issue or issues satisfy the showing required by
paragraph (2).” 28 U.S.C. § 2253(c)(3) (emphasis added).
This aspect of the COA process, although not jurisdictional
in the strict sense, “screens out issues unworthy of judicial
time and attention.” Gonzalez v. Thaler, 565 U.S. 134, 145
(2012) (emphasis added). The statute itself thus refutes
Browning’s suggestion that a COA must be granted with
respect to every single “issue” concerning alleged ineffective
assistance of counsel at a particular phase of the proceedings.
Under § 2253(c)(3), a COA must be limited to only those
particular issues relating to the alleged deprivation of
effective assistance of counsel that “reasonable jurists could
debate” or that are “adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84
(2000) (citation and internal quotation marks omitted); see
76 MCGILL V. SHINN
also Strickland v. Washington, 466 U.S. 668, 690 (1984) (“A
convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.”).
More broadly, Browning’s in-for-a-penny-in-for-a-pound
approach to ineffective assistance claims is divorced from the
reality of habeas litigation. It is quite often the case—as it is
here—that habeas counsel themselves carve up the ineffective
assistance claim for a single phase of the proceeding into
multiple separate claims. McGill’s counsel thus separated the
alleged ineffective assistance of counsel at the penalty phase
into several different claims, with “Claim One” relating to
multiple closely related alleged deficiencies in developing
and presenting mitigating evidence and “Claim Two” relating
to the asserted failure to challenge the weight to be given to
the “prior serious offense aggravator.” I can see no reason in
law or logic why, if a COA is granted on Claim One, it must
also be granted on Claim Two. Even McGill did not see
these two points as raising the same claim—much less the
same “specific issue,” 28 U.S.C. § 2253(c)(3)—and nothing
in § 2253(c) says that if a COA is granted for one issue, it
must also be granted for the other. On the contrary, McGill’s
own division of his attack on the effectiveness of his counsel
into multiple separate claims reflects the common-sense
notion that these separate aspects of counsel’s behavior are
sufficiently distinct that they may be addressed and
considered separately.
Moreover, the procedural rules governing habeas
litigation may require separating out the distinct challenges
to trial counsel’s performance. For example, an ineffective
assistance claim based on a particular aspect of trial counsel’s
MCGILL V. SHINN 77
conduct may be procedurally defaulted if it was not presented
to the state courts, meaning that an ineffective assistance
claim based on that aspect may be unable to proceed in
federal court. See, e.g., Landrum v. Mitchell, 625 F.3d 905,
918–19 (6th Cir. 2010) (holding that, “[a]lthough Landrum
did raise an ineffective assistance of trial counsel claim in his
[state] post-conviction petition, he did not include the
allegation about introducing [a particular witness’s]
testimony in the guilt phase” and that claim was therefore
procedurally defaulted). Indeed, a COA cannot issue with
respect to a procedurally defaulted claim unless the petitioner
makes a sufficient showing “directed at the underlying
constitutional claims and . . . directed at the district court’s
procedural holding.” Slack, 529 U.S. at 484–85 (emphasis
added). That further confirms that claims concerning distinct
aspects of a counsel’s alleged ineffective assistance may
warrant separate consideration for COA purposes.1 See, e.g.,
Roberts v. Dretke, 356 F.3d 632, 641 & n.6 (5th Cir. 2004)
(granting a COA only with respect to two particular aspects
of the petitioner’s ineffective assistance claims, while
denying it as to two others, one of which was procedurally
defaulted).
1
I do not mean to suggest, however, that Browning would require
COA expansion in such a scenario, in direct contravention of Slack.
Browning did not address the question of whether a COA should be
expanded to cover other ineffective assistance claims that were
procedurally defaulted, and its rule therefore applies only to additional
ineffective assistance claims involving the same phase that have not been
procedurally defaulted. Here, McGill’s Claim Two (which is the claim
that is the beneficiary of Browning’s rule) was not procedurally defaulted,
and so Slack’s rule for COAs involving procedurally defaulted claims
provides no obstacle to applying Browning here.
78 MCGILL V. SHINN
I am not entirely optimistic that Browning’s error will
ever be fixed, because its only effect is to create unnecessary
work, rather than to change the outcome. Any case in which
the Browning rule makes a difference—i.e., a case in which,
but for Browning, a COA would have been denied by the
relevant judges of this court as to an additional ineffective
assistance claim—is necessarily one in which that additional
claim will fail on the merits under AEDPA’s standards after
the COA is wrongly granted. Indeed, I would have denied a
COA as to Claim Two here, but for that very reason I
obviously agree with Judge Bybee’s conclusion, in his
opinion, that Claim Two fails on the merits under AEDPA.
But because Browning’s rule is clearly wrong, defeats the
screening purpose of § 2253(c)(3), and creates unnecessary
work and delay, I would hope that, perhaps in the next en
banc case in which that rule has played a role, we will take
the time to revisit it.
M. SMITH, Circuit Judge, concurring in part and dissenting
in part:
LeRoy McGill could not have been sentenced to death for
murder when he committed his crimes because at that time
there was no statute implementing the death penalty in
Arizona. Yet because the Arizona legislature passed a law
thirty-eight days later that purported to allow his execution,
McGill now sits on death row. For the reasons hereafter
noted, I believe that McGill’s death sentence is
unconstitutional. I respectfully dissent.
MCGILL V. SHINN 79
I
Up until June 2002, imposition of the death penalty in
Arizona was governed by Arizona Revised Statutes §§ 13-
1105 and 13-703 (2001). As the majority notes, § 13-1105
stated, “First degree murder . . . is punishable by death or life
imprisonment as provided by § 13-703.” Ariz. Rev. Stat.
§ 13-1105 (2001). The part of § 13-703 that permitted the
death penalty required the judge in a criminal case to
determine whether aggravating factors for a particular crime
warranted execution. See id. § 13-703(C) (2001). But on
June 24, 2002, § 13-703 was struck down as unconstitutional
in Ring v. Arizona (Ring I), 536 U.S. 584, 609 (2002), when
the Supreme Court held that the jury (not the judge) must
determine whether aggravating factors exist to impose the
death penalty. Thirty-eight days later, on August 1, 2002, the
Arizona legislature enacted a new capital punishment statute
that passed constitutional muster. On July 13, 2002, during
the time period between Ring I and re-enactment of § 13-703,
McGill committed the murder underlying this appeal, for
which he was sentenced to death.
II
To determine whether a criminal law is ex post facto, the
Supreme Court has instructed us to apply a three-prong test.
“[F]irst, the law must be retrospective, that is, it must apply
to events occurring before its enactment.” Miller v. Florida,
482 U.S. 423, 430 (1987) (internal quotation marks omitted).
Second, the law “must disadvantage the offender affected by
it.” Id. (internal quotation marks omitted). Finally, “no ex
post facto violation occurs if a change does not alter
‘substantial personal rights,’ but merely changes ‘modes of
procedure which do not affect matters of substance.’” Id.80 MCGILL V. SHINN
(quoting Dobbert v. Florida, 432 U.S. 282, 293 (1977)).
Ultimately, “[t]he touchstone of [the Supreme] Court’s
inquiry is whether a given change in law presents a ‘sufficient
risk of increasing the measure of punishment attached to the
covered crimes.’” Peugh v. United States, 569 U.S. 530, 539
(2013) (quoting Garner v. Jones, 529 U.S. 244, 250 (2000))
(some internal quotation marks omitted).
McGill’s claim plainly satisfies the first two prongs of the
ex post facto test. The remaining question is whether the re-
enactment of the death penalty via § 13-703 altered McGill’s
“substantial personal rights,” or whether it was merely a
procedural change. There was no law that permitted McGill
to be punished with a death sentence during the thirty-eight
days between Ring I and the re-enactment of § 13-703.1 I
therefore believe that a retroactive death sentence for crimes
committed during this period is unconstitutional.
Furthermore, the Arizona Supreme Court’s decision to the
contrary was an unreasonable application of clearly
1
The State conceded multiple times during oral argument that if the
Arizona legislature had never re-enacted § 13-703, McGill could not have
been sentenced to death. This quickly disposes of the majority’s
speculation that the Arizona courts could have, on their own, imposed the
death penalty in compliance with Ring I absent the legislature’s revision
of § 13-703. Slip op. at 72 n.13. Moreover, the Supreme Court has made
clear that the death penalty cannot be imposed without an implementing
statute, since “Furman mandates that where discretion is afforded a
sentencing body on a matter so grave as the determination of whether a
human life should be taken or spared, that discretion must be suitably
directed and limited so as to minimize the risk of wholly arbitrary and
capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion
of Stewart, Powell, and Stevens, JJ.). And if all that were not enough,
§ 13-1105 allows the death penalty only “as provided by” § 13-703.
Clearly, the plain text of the statute would not permit a court to impose the
death penalty outside of the requirements of § 13-703.
MCGILL V. SHINN 81
established Supreme Court case law. See 28 U.S.C.
§ 2254(d)(1).
The State argued, and the majority agrees, that § 13-1105
gave McGill notice of the possibility of a death sentence even
after the Supreme Court struck § 13-703 from the books. I
believe the opposite is true. After the Supreme Court
prohibited application of the portion of § 13-703 that allowed
the judge to make factual findings concerning aggravating
factors, a look at § 13-1105 would actually put a potential
offender on notice that he could not be sentenced to death for
first-degree murder. If, as § 13-1105 says, “[f]irst degree
murder . . . is punishable by death or life imprisonment as
provided by § 13-703,” and the death penalty prescribed in
§ 13-703 is a legal nullity, the statute is crystal clear that life
imprisonment alone is the punishment for first degree murder
committed during the period between Ring I and the
reenactment of § 13-703.
In reviewing McGill’s ex post facto claim, the Arizona
Supreme Court gave it one sentence: “We rejected this
argument in State v. Ring [(Ring II)], 204 Ariz. 534, 547 ¶ 23,
65 P.3d 915, 928 (2003).” State v. McGill, 140 P.3d 930, 945
(Ariz. 2006). But the Arizona Supreme Court did not, in fact,
reject McGill’s argument in Ring II. Instead, in Ring II, the
Arizona Supreme Court considered whether the ex post facto
clause prohibited the state from resentencing defendants
sentenced under the old (unconstitutional) death penalty
statute to new death sentences under the new death penalty
statute. 65 P.3d 915, 926 (Ariz. 2003). The court held that
“[t]he new sentencing statutes do not place the defendants in
jeopardy of any greater punishment than that already imposed
under the superseded statutes. Accordingly, applying the new
sentencing statutes does not violate the federal or state Ex
82 MCGILL V. SHINN
Post Facto Clause[s].” Id. at 928 (emphasis added). Ring II
examined whether the change from the old § 13-703 to the
new § 13-703 was procedural or substantive. That is not the
question here. Here, the issue is whether the change from no
possibility of the death penalty to possibility of the death
penalty was procedural or substantive. It is a very different
question from the one answered in Ring II and, thus, has a
very different answer.
For the same reason, the cases that the majority relies
upon (the same cases that Ring II relies upon) simply do not
apply. Dobbert v. Florida, 432 U.S. at 291, and Collins v.
Youngblood, 497 U.S. 37, 38 (1990), addressed situations in
which a law in effect at the time of the crime permitted the
punishment that was eventually imposed (in Dobbert, the
death penalty, and in Collins, a sentence of imprisonment
without a monetary fine). That is not the situation here, and
I have just explained why the distinction is relevant. (In fact,
one might say that the most important distinction in
evaluating these ex post facto claims is whether a law in
effect at the time of the offense punished that offense.)
Treating this case as if it is like Dobbert and Collins was
precisely the unreasonable application of Supreme Court
precedent that would lead me to grant relief under AEDPA’s
deferential standard of review.2
2
I believe my colleagues misapply AEDPA’s standard of review. I
do not think that my colleagues’ opinion that the Arizona court acted
reasonably is itself unreasonable. See Slip Op. at 73 n.14. Where I differ
with my colleagues is that they “need not go so far as to decide that
Arizona’s” decision was “consistent with the Ex Post Facto Clause,” Slip
Op. at 73, while I believe that the state court decision was inconsistent
with the Ex Post Facto Clause—and unreasonably so.
MCGILL V. SHINN 83
A hypothetical illustrates the error of the majority’s
position that McGill is not entitled to relief. Between 2003
and 2006, Arizona courts sentenced nineteen individuals to
death.3 But imagine that, rather than thirty-eight days, the
Arizona legislature waited five years after Ring I to re-enact
a death penalty implementation statute. Without re-
enactment of § 13-703, those nineteen people—everyone
acknowledges—would have been sentenced to life in prison.
If the Arizona legislature had not passed a new version of
§ 13-703 until 2006, would the State then be able to
retroactively execute the nineteen individuals who had been
sentenced to life in prison for murder convictions during
those five years? What if the legislature had taken fifteen
years to re-enact § 13-703, or thirty? The Ex Post Facto
Clause provides that “No State shall . . . pass any . . . ex post
facto Law.” U.S. CONST. art. I, § 10, cl. 1. The Constitution
does not state: “No State shall pass any ex post facto Law,
unless such a law is passed within thirty-eight days.”
Lengthening the gap between valid death penalty statutes
shows the unworkability of the standard that the majority
endorses and imputes a “reasonableness” inquiry into the Ex
Post Facto Clause when the text mandates a bright line rule.4
3
See https://corrections.az.gov/public-resources/death-row.
4
My colleagues in the majority make much of an invented distinction
between a law authorizing a “punishment” and a law authorizing a
“sentence.” Slip Op. at 70–72. The plain text of § 13-1105 puts this
argument to bed. That section states that first degree murder “is
punishable by death” “as provided by § 13-703.” Section 13-1105 is
dependent on § 13-703 alone, which provides for the imposition of a death
sentence. Thus, the punishment is the sentence. The operative fact for
McGill’s claim is that at the time of his offense, no law allowed him to be
punished with a death sentence.
84 MCGILL V. SHINN
My colleagues in the majority do quite a bit more to
defend the Arizona Supreme Court’s ruling on McGill’s ex
post facto claim than the Arizona Supreme Court did itself
(though the majority stops short of endorsing it as correct).
However, even the majority’s reasoning requires incorrectly
assuming that the analysis in Ring II applies with equal force
to McGill’s situation. That assumption contradicts Supreme
Court precedent requiring courts to examine “whether a given
change in law presents a ‘sufficient risk of increasing the
measure of punishment attached to the covered crimes.’”
Peugh, 569 at 540 (quoting Garner, 529 at 250) (some
internal quotation marks omitted). There was no risk that
McGill would be sentenced to death for his crimes at the time
they were committed, as such a sentence would run afoul of
Gregg. See supra, n.1. By the time of McGill’s sentencing,
the Arizona legislature had increased the risk of a death
sentence for conduct that had already taken place. Thus,
McGill could not constitutionally be sentenced to death. The
state court failed to reasonably apply Peugh and the three-
prong test articulated in Miller when evaluating McGill’s
federal ex post facto claim. Instead, the state court relied on
Dobbert and Collins, cases in which the later penalty imposed
was the same penalty that could have been imposed at the
time of the offense. That makes Dobbert and Collins not just
different from McGill’s case but different in the one outcome-
determinative way. Therefore, I believe McGill is entitled to
habeas relief.
III
I concur in my colleagues’ decision resolving McGill’s
challenges to the guilt phase of his trial. However, I would
grant McGill’s petition for the writ of habeas corpus with
respect to the penalty phase because I believe sentencing
MCGILL V. SHINN 85
McGill to death is unconstitutional pursuant to the Ex Post
Facto Clause. I respectfully dissent.