On September 16, 2013, the Ninth Circuit (N.R. Smith, with Bea; partial concurrence and partial dissent by Wardlaw) affirmed the denial of James McKinney’s habeas petition, rejecting claims that the use of dual juries for McKinney and his co-defendant was unconstitutional, that McKinney’s constitutional rights were violated when he was required to wear a leg brace during trial, and that the trial court did not adequately consider mitigating factors in imposing the death sentence. McKinney v. Ryan, ___ F.3d ___, 2013 WL 5066368 (9th Cir. Sept. 16, 2013).
Although McKinney raised a number of claims based on the trial court’s use of dual juries, the panel found that only one of them was exhausted – that the use of dual juries led to a prejudicial courtroom layout where McKinney faced the jurors throughout the trial. McKinney could not obtain relief on this claim because he failed to identify clearly established federal law supporting it. The other claims related to the dual juries were deemed procedurally defaulted. The panel rejected McKinney’s argument that ineffective assistance by post-conviction counsel in failing to raise the claims provided cause to overcome the default. It pointed out that Martinez v. Ryan, 132 S.Ct. 1309 (2012) applies only when the defaulted claim is ineffective assistance of trial counsel. The panel also concluded that the shackling claim was unexhausted/procedurally defaulted and that McKinney had failed to establish cause to overcome the default.
The final claim considered by the panel was McKinney’s claim that the trial court violated the Eighth Amendment by failing to consider mitigating evidence. Specifically, McKinney argued that the trial court refused to weigh evidence of McKinney’s abusive childhood and its psychological effects because of the trial court’s conclusion that it did not impact McKinney’s actions at the time of the capital offense. The panel majority concluded that the record made clear that the trial court adequately considered and weighed McKinney’s mitigating evidence. To the extent there was any ambiguity, the panel majority found it "should be cast in favor of the state." The panel majority further found that the Arizona Supreme Court, when addressing this claim, did not apply an unconstitutional nexus test to exclude evidence proffered in mitigation. Rather, it properly considered the nexus of the mitigating evidence to the crime in assessing the weight the mitigating evidence should receive.
Wardlaw dissented on the Eighth Amendment claim. She found it "clear from the record that the sentencing judge improperly refused to consider the mitigating effect of McKinney’s post traumatic stress disorder (‘PTSD’) evidence specifically because the judge concluded that this evidence was not causally linked to McKinney’s crimes, contrary to the U.S. Supreme Court’s decisions in Eddings [v. Oklahoma, 455 U.S. 104 (1982)] and its progeny." She further determined that the Arizona Supreme Court repeated the same legal error, resulting in a decision that was contrary to clearly established Supreme Court precedent. In addition, Wardlaw found that the Arizona Supreme Court’s characterization of the sentencing judge’s decision was factually inaccurate, resulting in a decision that was based on an unreasonable determination of the facts. Finally, Wardlaw concluded: "McKinney has demonstrated that he is entitled to habeas relief regardless of whether Eddings violations are deemed structural error or are reviewed for harmless error."