FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT D. CLABOURNE,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 09-99022

D.C. No.

4:03-cv-00542-

RCC

ORDER

Filed August 1, 2017

Before: Marsha S. Berzon, Richard R. Clifton,

and Sandra S. Ikuta, Circuit Judges.

Order;

Concurrence by Judges Clifton and Ikuta;

Dissent by Judge Berzon
2 CLABOURNE V. RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel filed an order denying a petition for panel

rehearing and, on behalf of the court, a petition for rehearing

en banc in an appeal from the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition in a death penalty

case.

Concurring in the denial of rehearing, Judges Clifton and

Ikuta wrote that the panel’s assessment of what the Arizona

Supreme Court did in resolving the petitioner’s appeal

remained correct.

Dissenting from the denial of rehearing, Judge Berzon

wrote that, in light of McKinney v. Ryan, 813 F.3d 798 (9th

Cir. 2015) (en banc) (holding that the Supreme Court of

Arizona applied an unconstitutional causal nexus test for

nonstatutorymitigation), the panel was obligated to rehear the

case and grant the habeas petition with regard to the penalty

phase of trial.

COUNSEL

S. Jonathan Young, Williamson & Young PC, Tucson,

Arizona, for Petitioner-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CLABOURNE V. RYAN 3

Jeffrey A. Zick (argued), Jacinda A. Lanum, and Amy

Pignatella Cain, Assistant Attorneys General; Lacey Stover

Gard and Kent Cattani, Capital Litigation Section Chief

Counsel; Mark Brnovich, Attorney General; Office of the

Attorney General, Tucson, Arizona; for RespondentAppellee.

ORDER

Judges Clifton and Ikuta have voted to deny the petition

for panel rehearing. Judge Berzon has voted to grant the

petition for panel rehearing.

Judge Ikuta has voted to deny the petition for rehearing en

banc, and Judge Clifton so recommends. Judge Berzon has

voted to grant the petition for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc, and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are therefore DENIED.

CLIFTON and IKUTA, Circuit Judges, concurring in the

denial of rehearing:

After careful consideration of this case, including a close

review of the decision of the Arizona Supreme Court, State

v. Clabourne, 194 Ariz. 379, 983 P.2d 748 (1999) (en banc),

we entered a unanimous opinion that concluded that the
4 CLABOURNE V. RYAN

Arizona court “gave Clabourne’s mental illness some

nonstatutory mitigating weight but ultimately held that the

mitigating circumstances were insufficient to warrant

leniency.” Clabourne v. Ryan, 745 F.3d 362, 369–70 (9th

Cir. 2014). After explaining the basis for our determination

that the Arizona Supreme Court had given mitigating weight

to Clabourne’s mental deficiencies, we concluded, at 373:

We cannot construe the court to have violated

Eddings [v. Oklahoma, 455 U.S. 104 (1982)]

by giving Clabourne’s mental health issues

“no weight by excluding such evidence from

their consideration.” Eddings, [at 115]. The

Arizona Supreme Court’s decision under

review was not contrary to federal law,

because it considered Clabourne’s mental

health condition as mitigating evidence.

Eddings requires no more.

Although there have been developments in our court’s

precedents since we filed our opinion, none alter our

assessment of what the Arizona Supreme Court did in

resolving Clabourne’s appeal. We do not doubt the sincerity

of Judge Berzon’s current view, but we conclude that our

previous analysis of that court’s action, which she joined,

remains correct.

BERZON, Circuit Judge, dissenting from the denial of

rehearing:

I dissent from the denial of rehearing in this case.
CLABOURNE V. RYAN 5

We held the rehearing petition in this case for McKinney

v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), cert. denied,

137 S. Ct. 39 (2016), an en banc opinion of this court issued

after our panel opinion, and then ordered supplemental

briefing about the impact of McKinney. See Order to File

Supplemental Briefs, Clabourne v. Ryan, 745 F.3d 362, 371

(9th Cir. 2014) (No. 09-99022). Ignoring both that briefing

and McKinney itself, the panel majority now refuses to rehear

the case. I am convinced that we are obligated to do so and,

in light of McKinney, to grant the petition for habeas corpus

with regard to the penalty phase. See, e.g., Hedlund v. Ryan,

815 F.3d 1233, 1236 (9th Cir. 2016), amended and

superseded on denial of rehearing en banc, 854 F.3d 557 (9th

Cir. 2017) (withdrawing original panel opinion and

reconsidering a petitioner’s claim in light of the intervening

decision in McKinney).

I.

In McKinney, an en banc panel of this court stated

unequivocally that, from the late 1980s to 2006, the

“Supreme Court of Arizona articulated and applied a ‘causal

nexus’ test for nonstatutory mitigation that forbade as a

matter of law giving weight to mitigating evidence, such as

family background or mental condition, unless the

background or mental condition was causally connected to

the crime.” 813 F.3d at 802. That causal nexus test, we held,

violated Eddings v. Oklahoma, 455 U.S. 104, 114 (1982),

which bars a sentencing court in a capital case from refusing

as a matter of law to consider any relevant mitigating

evidence. McKinney, 813 F.3d at 802.

McKinney emphasized repeatedly the consistency with

which the Arizona Supreme Court articulated and applied the
6 CLABOURNE V. RYAN

unconstitutional causal nexus rule during the relevant period. 

Id. at 824 (“[T]he Arizona Supreme Court, during a period of

just over fifteen years, consistently insisted upon and applied

its causal nexus test to nonstatutory mitigation. In no case

during this period did the court give any indication that the

causal nexus test was not the law in Arizona, or any

indication that it had the slightest doubt about the

constitutionality of the test.”); see also id. at 803, 815, 826. 

It was in 1999 that the Arizona Supreme Court affirmed

Clabourne’s death sentence, which, like the timing of the

decision in McKinney, was “roughly in the middle of the

fifteen-year-plus period during which it insisted on its

unconstitutional nexus test for nonstatutory mitigation.” See

id. at 820.

Of course, McKinney does not dispose of Clabourne’s

petition for rehearing outright. But McKinney’s holding that

the Arizona Supreme Court consistently applied an

unconstitutional rule at the time it reviewed Clabourne’s

sentence provides the baseline from which we must review

the decision in State v. Clabourne, 194 Ariz. 379 (1999) (en

banc) (“Az Clabourne”), and interpret any ambiguity therein.

Critically, McKinney also overruled the requirement

established in Schad v. Ryan, 671 F.3d 708, 724 (9th Cir.

2011), that a federal habeas court may grant a petitioner relief

on an Eddings claim only if there is a “clear indication in the

record” that a state court refused as a matter of law to

consider relevant nonstatutory mitigation evidence.

McKinney, 813 F.3d at 819. McKinney held instead that a

federal habeas court examining a claimed Eddings error need

give a state court decision only the normal deference required

under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Id. In adhering to Schad’s “clear
CLABOURNE V. RYAN 7

indication” test, see Clabourne v. Ryan, 745 F.3d 362, 371,

373 (9th Cir. 2014), the panel opinion thus depends upon a

standard that an en banc panel of this court expressly rejected

as “an inappropriate and unnecessary gloss on the deference

already required under” AEDPA, see McKinney, 813 F.3d at

819.

In short, by denying Clabourne’s petition for rehearing

and leaving the opinion in this case unamended, the panel

majority does not grapple with the significance of the

intervening decision in McKinney, with regard either to its

holding that the Arizona Supreme Court consistently applied

an unconstitutional causal nexus rule during the relevant

period or to its rejection of Schad’s heightened standard of

review. At a minimum then—whatever the proper

outcome—the panel opinion’s reasoning as it stands is

inconsistent with the current law of this circuit and should be

reconsidered.

But, the problem is not, in my view, one that can be

simply papered over by revisions to the existing panel

opinion. Rather, if the reliance on Schad is eliminated, as it

must be, and McKinney is properly applied, we must change

the outcome of this case by granting the petition for habeas

corpus with regard to the penalty phase.

II.

In light of McKinney’s review of Arizona case law during

the period Az Clabourne was decided, and absent the Schad

mandate that we find a “clear indication in the record” that

the state court committed Eddings error, I am convinced that

Az Clabourne applied the unconstitutional causal nexus test

identified in McKinney by declining to consider evidence of
8 CLABOURNE V. RYAN

Clabourne’s schizophrenia as a nonstatutory mitigating

factor.

The Arizona Supreme Court initially addressed

Clabourne’s mental health conditions in the context of

statutory mitigation under Arizona Revised Statutes § 13-

703(G)(1), impaired capacity. Az Clabourne, 194 Ariz. at

385. Statutory mitigation based on impaired capacity is

available in Arizona only when mental illness is a “major

contributing cause” of the defendant’s conduct and the

substantive requirements of (G)(1) are met. Id. (emphasis in

original) (citation omitted). Substantively, “[t]he statute calls

for ‘significant’ impairment of one of two specific abilities:

(1) the capacity to appreciate the wrongfulness of conduct or

(2) the capacity to conform conduct to the requirements of the

law.” Id.; see Ariz. Rev. Stat. § 13-703(G)(1) (current

version at Ariz. Rev. Stat. § 13-751(G)(1)).

In considering whether Clabourne was entitled to

statutory mitigation for impaired capacity, the Arizona

Supreme Court first recounted the evidence related to

Clabourne’s mental health. Two mental health experts

believed Clabourne suffered from mental illness, probably

schizophrenia, and another believed he had a personality

disorder. Az Clabourne, 194 Ariz. at 385. Nevertheless,

these experts agreed “that there was no evidence of

Clabourne’s state of mind at the particular time of the

offense.” Id. In particular, the experts “could [not] say

whether [Clabourne] was ‘psychotic,’” and none had “stated

or implied a causal relationship between Clabourne’s mental

health and the murder.” Id. “Neither did any nonexpert party,

includingClabourne, indicate that Clabourne had lost contact

with reality or acted abnormally when he participated in the

crime.” Id.
CLABOURNE V. RYAN 9

After emphasizing the requirement that mental illness be

a “major contributing cause” of the defendant’s conduct for

a finding of impaired capacity under the statute, the court

held Clabourne’s “status of being mentally ill alone []

insufficient to support a (G)(1) finding.” Id. (emphasis in

original).

The Arizona Supreme Court then proceeded to consider,

still in the context of statutory mitigation, Clabourne’s

argument that “his mental illness causes a passivity and

paranoia that allowed Langston to control him, and therefore

he was unable to resist Langston’s pressure to rape and kill

Webster.” Id. at 386. The court had earlier in its discussion

of impaired capacity noted that “[t]he record does

demonstrate that Langston was a manipulative and

frightening man who, for the most part, choreographed the

crime and urged Clabourne to kill Webster.” Id. at 385. 

Accordingly, whereas the court rejected Clabourne’s status of

being mentally ill because there was no causal link, the court

rejected Clabourne’s passive personality and paranoia as a

basis for mitigation under subsection (G)(1) because

Clabourne had not satisfied the statute’s substantive standard. 

That is, Clabourne had not demonstrated “that his capacity to

conform his conduct to the requirements of the law was

significantlyimpaired” because he had shown neither that “he

was passive or paranoid to any degree of impairment [n]or

that he had actually lost any control over his conduct when he

committed the murder.” Id. at 386; see Ariz. Rev. Stat. § 13-

703(G)(1) (current version at Ariz. Rev. Stat. § 13-

751(G)(1)).

When the Arizona Supreme Court turned to Clabourne’s

mental health in the context of nonstatutory mitigating

circumstances, it addressed only the specific fact that
10 CLABOURNE V. RYAN

“Clabourne has a passive personality and that he is impulsive

and easily manipulated by others.” Id. at 387. As the court

had indicated earlier, there was a plausible causal connection

between these personality traits and the crime, given

Langston’s manipulative personality and his leadership role

in Webster’s murder. See id. at 385. So, under the Arizona

Supreme Court’s causal nexus standard, those traits required

weighing as to nonstatutorymitigation. The court recognized

Clabourne’s passive personality and related characteristics to

be “rooted to some degree in his mental health problems,” id.

at 387, but, as I have explained, it considered those problems

distinct from his schizophrenia diagnosis. It was thus only as

to the specific “mental and personality deficiencies” of

p a ssi v e p e rs o n a l i t y, i m p u lsi v e n e ss, a n d

manipulability—which did have a connection to the

crime—that the court “afford[ed] some nonstatutory

mitigating weight.” Id.

That the court gave some nonstatutory mitigating weight

only to these specific mental and personality deficiencies, and

not to his schizophrenia, is further evidenced by the court’s

justification (in the very next sentence) for ultimately

granting those characteristics little mitigating weight. See id.

The court highlighted Clabourne’s “active participation

throughout the six-hour ordeal and the fact that he personally

strangled and stabbed Webster,” holding that those facts

“render[ed] negligible any mitigating effect [of] Clabourne’s

problems and the traits theymanifest.” Id. Clabourne’s active

involvement in a lengthy crime was pertinent to weighing the

evidence that Clabourne had a passive, impulsive, and

manipulable personality, but that active involvement would

have no bearing on what mitigating weight to give a

schizophrenia diagnosis.
CLABOURNE V. RYAN 11

To hold that the Arizona Supreme Court refused to

consider Clabourne’s schizophrenia at the nonstatutory

mitigation phase thus does not, as the panel opinion suggests,

require reaching the “illogical [] conclu[sion]that the Arizona

Supreme Court considered [Clabourne’s schizophrenia]

diagnosis and explicitly referenced it in one portion of its

opinion but forgot it when considering nonstatutory

mitigation, discussed just a few pages later in the opinion.”

Clabourne, 745 F.3d at 374. The better inference, in light of

McKinney and based on the reasoning and structure of Az

Clabourne, is that the Arizona Supreme Court applied its

causal nexus test—which, McKinney held, was its governing

standard at the time, consistently applied—to exclude

Clabourne’s schizophrenia from consideration as a

nonstatutory mitigating factor.

This understanding is bolstered by the fact that the

Arizona Supreme Court expressly applied the causal nexus

standard in the very next subsection of the nonstatutory

mitigation discussion. The court rejected Clabourne’s

evidence of his dysfunctional family background because

“[w]hatever the difficulty in Clabourne’s family life, he has

failed to link his family background to his murderous conduct

or to otherwise show how it affected his behavior.” Az

Clabourne, 194 Ariz. at 387 (citing State v. Spears, 184 Ariz.

277, 293–94 (1996)).

The conclusion that the Arizona Supreme Court applied

the unconstitutional causal nexus test to preclude

consideration of Clabourne’s schizophrenia diagnosis as a

nonstatutory mitigating factor is further supported by the

Arizona Supreme Court’s citation to its own decision in Az

Clabourne in later cases when applying the causal nexus

standard. See, e.g., State v. Carlson, 202 Ariz. 570, 586
12 CLABOURNE V. RYAN

(2002) (en banc); State v. Cañez, 202 Ariz. 133, 164 (2002)

(en banc). Those later citations to Az Clabourne for the

causal nexus standard are relevant in light of McKinney. To

the extent Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012),

limited our review in habeas cases to the record in the case

before us, barring consideration of post-hoc characterizations

of a decision by a state court, Towery is inconsistent with

McKinney and so does not control. McKinney looked freely

beyond the record of the case before it, examining Arizona

Supreme Court decisions in numerous other cases to establish

that court’s pattern of applying an unconstitutional rule.1 Of

course, later Arizona Supreme Court citations to Az

Clabourne for the causal nexus standard are not dispositive,

as a federal habeas court may grant relief only based on an

error in the decision adjudicating a petitioner’s claim. See

28 U.S.C. § 2254(d). But those later decisions do corroborate

what a careful reading of the opinion, in light of McKinney,

demonstrates.2

Again, that Az Clabourne applied the unconstitutional

nexus test disapproved in McKinney is no wonder. As

McKinney held, the Arizona courts applied the

unconstitutional nexus test consistently during the period it

decided Az Clabourne. “A good court [] does not apply an

established rule erratically, enforcing it arbitrarily in some

cases but not in others. We have great respect for the

1 McKinney also held Towery was wrongly decided as to the Eddings

issue in that case, further undermining Towery’s persuasive value. See

McKinney, 813 F.3d at 824.

2 Similarly, the prosecutor’s arguments at Clabourne’s resentencing

hearing regarding a causal nexus confirm that Arizona law required such

a nexus at the time Clabourne was resentenced, as McKinney held.
CLABOURNE V. RYAN 13

Supreme Court of Arizona, whose institutional integrity is

demonstrated, inter alia, by the consistent application of the

causal nexus test during the fifteen-year period it was in

effect.” McKinney, 813 F.3d at 826. To hold, as does the

current panel opinion, that the Arizona Supreme Court for

some unexplained reason did not apply its own prior

precedents in this case alone is to disregard not only

McKinnney but the Arizona Supreme Court’s own later

references to this case as one in which the nexus requirement

was applied.

In sum, after McKinney, I see no choice but to grant

Clabourne’s petition and remand this case for resentencing. 

There is just no principled way to reconcile the panel

opinion’s reasoning and holding with this court’s en banc

opinion. I would rehear this case and grant the petition for

habeas corpus with regard to the penalty phase. I therefore

strongly dissent from the panel’s refusal to do either.