F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S C O T T D. C L

A B O U R N E , Petitioner-Appellant

,

v

.

C H A R L E S L

. R Y

A N , Respondent-Appellee

. N o. 09-99022

D.C. No. 4:03-cv-00542- RCC

ORDER

F iled Aug ust 1, 2017

B efore: Marsha S. B e rz on, Richard R. Clifton, and Sandra S. I kuta, Circuit J udg es.

Order; Concurrence by

J u dg es Clifton and I k

uta; Dissent by J udg e B erz onC L A B O U R N E V

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SUMMARY *

Habeas Corpus/Death P e nalty

T h e panel filed an order deny ing a petition for p a n el rehearing and, on behalf of the court, a p etition for rehearing

e n banc in an appeal from the district court’s denial of a 2 8 U

. S .C. § 2 254 habeas corpus petition in a death penal t y

case.

Concurring in the denial of rehearing

, J udg es Clifton a nd I kuta wr o te that the panel’s assessment of what the A riz o na Supreme Court did i n r esolving the petitioner’s appeal remained correct.

Dissenting from the denial of rehearing

, J udg e B erz on wrote that, in lig ht of McKinney v. R yan , 813 F .3d 7 9 8 ( 9 t h Cir. 2015) (en banc) (holding that the Supreme Co u r t o f Ariz ona applied an unconstitutional causal nex u s t est for nonstatutory mitig ation), the panel was oblig ated to rehear the

case and g rant the habeas petition with r eg ard to the penalty phase of trial.

COUNSEL

S. J onathan Y oung , W illia m s o n & Young PC, Tucson, Ariz ona, for Petitioner-Appellant.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C L A B O U R N E V

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J effrey A. Z ick (arg

u ed), J acinda A

. L anum, and Amy Pig natella Cain, Assistant Attorney s General; L acey Stov er Gard and K ent Cat t a ni, Capital L itig ation Section Chief Counsel; Mark B rnovich

, A t torney General; Office of the Attorney General, Tucson, A r i z ona; for RespondentAppellee.

ORDER

J udg e s Clifton a

n d I k u t a h a v e voted to deny the petition for p anel rehearing

. J udg e B erz on has v o t e d to g rant the petition for panel rehearing

.

J udg e I kuta has voted to d eny the petition for rehearing en banc, and J udg e Clifton so recommends

. J udg e B erz on has voted to g rant the petition for rehearing en banc.

The full court has been advised of the sug g e stion for

r ehearing en banc, a

nd no judg e has requested a vote o n whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition f

or panel rehearing and the pet i tion for rehearing en banc are therefore DENIED

.

CL I F TON and I KUTA, Circuit J u d ge s , concurring in the denial of rehearing :

After careful consideration o f this case, including a close review of the decision of the A riz ona Supreme Co u r t , State

v. Clabourne

, 194 Ariz

. 379, 9 8 3 P.2d 748 (1999) (en banc),

we entered a unanimous opinion that concluded that theC L A B O U R N E V

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Ariz ona court “g a v e Clabourne’s mental illne ss some nonstatutory mitig ating weig ht b ut ultimately held that the mitig ating c ircumstances w ere insufficient to warrant leniency .” Clabourne v. Ryan
, 745 F .3d 362, 369–7 0 ( 9 t h Cir. 2014). After ex plaining the basis for our determination that the Ariz ona Supreme Court had g iven mitig ating w eig ht to Clabourne’s mental deficiencies, we concluded, at 373:

W e cannot construe the court to h ave violated Eddings [ v. Oklahoma , 455 U.S. 104 (1982)] by g iving Clabourne’s mental h ealth issues “no weig ht by e x cluding such evidence f rom their consideration.” Eddings

, [ at 11 5 ]

. The Ariz ona Su p r eme Court’s decision under review w a s not c ontrary to f ederal law, be c ause it c onsidered Clabourne’s mental health condition as mitig ating eviden c e

. Eddings requires no more.

Althoug h there have be e n developments in our court’s precedents since we f

i l ed o ur opinion, none alter our assessment o f w h a t the Ariz ona Supreme Court d id in resolving Clabourne’s a

ppeal. W e do n ot doubt the sincerity

o f J udg e B erz on’s current v iew, but we conclude that o u r previous analy sis of tha t court’s a c tion, which she joined, remains correct.

B ERZ ON, Circuit J udg e, dissenting from the d enial o f rehearing :

I dissent from the denial of rehearing in this case.C L A B O U R N E V

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W e 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 o p inion of this court issued after our panel opinion, and then o rdered supplemental b r i efing about the impact of McKinney

. See Order to Fi l e Supplemental B riefs, Clabourne v. Ryan , 745 F .3d 362, 371 (9th Cir. 2014) (No. 09-99022). I g noring both t h a t briefing and McKinney itself, the panel majority now r efuses to rehear the case. I

am convinced that we are oblig ated to do so and, in lig ht of McKinney
, to g rant the petition for habeas corpus with reg ard to the p enalty phase. See, e.g. , Hedlund v

. Ryan
, 815 F .3d 1 233, 1 236 (9th Cir. 2 016 )

, amended and superseded on denial of rehearing en banc

, 854 F .3d 557 (9th Cir. 2017) ( w i thdrawing orig inal panel opinion a nd reconsidering a p etitioner’s claim in lig ht of the intervening decision in McKinney ).

I

.

I n M c K i n n ey , an en banc panel o f this court stated unequivocally that, from the late 1980s to 2002, the “Supreme Court of Ariz o na articulated and applied a ‘causal

nex us’ test for nonstatutory mitig ation th a t f o r b ade as a matter of law g iving weig ht t o m i t ig ating evidence, such a s family b a ckg round or mental condition, unless the back g r o u nd or mental condition was causally connected to the crime.” 813 F .3d at 802. That causal nex u s test, we held, violated Eddings v. Oklahoma

, 455 U.S. 104, 114 (1982), which bars a sentencing c ourt in a capital case from refusing

as a matter of l a w t o c onsider any relevant mitig ating evidence. McKinney , 813 F

. 3d at 802.

M c K inney emphasiz ed repeatedly the consistency with which the Ariz ona Supreme Court articulated and applied theC L A B O U R N E V

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unconstitutional causal nex us rule during the relevant period. Id. at 824 (“[ T] he Ariz ona Supreme Court, during a period o f just over fifteen y ears, consistently insisted upon and a pplied its causal nex us test to nonstatutory mitig ation. I n no case during this period did the cou rt g ive any indication that the causal nex us test was not the law in Ariz ona, or any indication that it had the slig htes t d o u b t a bout the constitutionality of the test.”); see a l s o id. at 803, 815, 826. I t was in 1999 that the Ariz ona Supreme Court affirmed Clabourne’s death sentence, w hich, like the timing of the de ci s i on in McKinney
, w as “roug hly in the middle of the fifteen-year-plus p e riod d uring which it insisted on its unconstitutional nex us test for nonstatutory mitig ation.” See id. at 820

.

Of course, McKinney does not dispos e of Clabourne’s petition for rehearing outrig ht. B ut McKinney ’s holding that the Ariz ona Supreme Court consistently applied an unconstitutional rule at the time it r e v i ewed Clabourne’s
sentence p rovides the baseline from which w e must r eview the decision in State v. Clabourne , 194 Ariz . 379 (1999) (en banc) (“ Az Clabourne ”), and interpret a n y ambig uity therein.

Critically

, McKinney also overruled t h e r equirement established in Schad v. Ryan
, 671 F .3d 708, 7 2 4 ( 9th Cir. 2011), that a federal habeas c ourt may g rant a petitioner relief

on an Eddings claim only if there is a “ clear indication in the record” th at a state court r efused as a matter of law to

c o n s i d er r e l e v a n t n o n s t at u t o r y m i t i ga t i o n e v i d e n c e

. McKinney
, 813 F

. 3 d at 8 1 9. McKinney held instead that a federal habeas court ex amining a c laimed Eddings error need
g ive a state c ourt decision only the normal deference r equired under the A ntiterrorism a n d Effective Death Penalty Act o f 1996 (“AEDPA”). Id. I n adhering to Schad ’s “ clearC L A B O U R N E V

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indication” test, see Clabourne v. Ry a n , 7 45 F .3d 362, 371, 3 7 3 (9th Cir. 2014), the panel opinion thus depends upon a standard that an en banc p anel of this court ex pressly rejected as “an inappropriate and unnecessary g loss on the deference already required under” AEDPA, see M cKinney
, 8 13 F

. 3 d at 819.

I n short, by deny ing Clabourne’s petition f o r r ehearing and leaving the opinion in t h i s case unamended, the panel majority does not g rapple w ith the sign i f i cance of the interve n i n g decision in M cKinney
, with reg ard either to its holding that the Ariz ona Supreme Court consistently a pplied

an u n constitutional causal nex us r u l e during the relevant period or to i t s rejection of S chad ’s heig htened standard o f review. At a minimum t h e n—whatever the proper outcome—the panel o pinion’s r e asoning as it stands is inconsistent with the current law of this c ircuit and should be reconsidered.

B u t, the p roblem is no t , i n my view, one that can be simply p a p e r e d over by revisions to the ex isting panel opinion. Rather, if the reliance on Schad is eliminated, as it must be, and McKinney is properly applied, we must chang e the outcome of this ca s e by g ranting the petition for h abeas corpus with reg ard to the penalty phase.

I I

.

I n lig ht of McKinney ’ s review of Ariz ona case law during the period Az Clabourne was decided, and absent t h e S chad mandate that we find a “ clear indication in the re c o rd” that the state court committed Eddings error, I am c onvinced that Az Clabourne applied the unconstitutional causal nex us test identified in McKinney by declining to consider evidence o fC L A B O U R N E V

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Clabourne’s schiz o phrenia as a nonstatutory mitig ating factor.

The Ariz ona Supreme Court initia l l y addressed Cla b ourne’s mental health c onditions in the contex t o f statutory mitig ation unde r Ar iz ona Revised Statutes § 13- 703 ( G ) ( 1), impaired capacity

. Az Clabourne

, 194 Ariz

. at 385. S t a tutory mitig ation based on impaired capacity is available in Ariz ona only wh e n mental illness is a “ major contributing cause ” of the defendant’s c o n duct and the substantive requirements of (G)(1) are met. Id. (emphasis in orig inal) (citation omitted). Substantively

, “[ t] he statute calls for ‘sig n ificant’ impairment of one o f two specific abi l i t i e s: (1) the capacity to appreciate the wrong fulness of conduct o r (2) the capacity to conform conduct to the requirements of the law.” Id. ; see Ariz

. Rev. Sta t

. § 13-703(G)(1) (current version at Ariz . Rev. Stat. § 13-751(G)(1)).

I n considering w hether C labourne was entitled to statutory mitig ation f

o r impaired c apacity

, the A riz o na Supreme Court first r e counted the evidence r elated to Clabourne’s mental health. T w o mental health ex perts believed Clabourne suffered from mental il l n e s s, probably schiz ophrenia, and a

nother believed he had a personali ty disorder. Az Clabourne

, 194 Ariz

. at 385. N e v ertheless, these ex pert s a greed “that there w as no evidence o f Clabourne’s state of mind a t t he particular time of the offense.” I

d. I n p a r t icular, the e x perts “could [not] say whether [ Clabourne] was ‘psy chotic,’” a nd none had “stated

or implied a causal relationship b etween Clabourne’s mental health a nd the murder.” Id. “Neither did any nonex pert party , including Clabourne, indicate that Clabourne had lost contact with reality or acted abnormally when he participated in the crime.” Id.C L A B O U R N E V

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After emphasiz ing the requirement that mental illness be a “ major contributing cause ” o f the defendant’s conduct for

a finding of impaired capacity u n d e r the statute, the court held Clabourne’s “stat us of b e ing mentally ill alone [ ] insufficient to support a (G)(1) f inding .” Id. (emphasis in orig inal).

The Ariz ona Supreme Court then proceeded to consider, still in the c ontex t of stat utory mitig ation, Clabourne’s
arg ument that “his mental illness causes a passivity a nd paranoia that allowed L ang ston to control him, and therefore he was unable to r esis t L a n g ston’s pressure to rape and k ill W e bster.” Id. a t 386. T he court had earlier in its dis c u s s i o n of impaired c a

pacity noted that “[ t] he record does demonstrate that L ang ston w as a manipulative a nd frig htening man who, for the most p a r t , c horeog raphed the crime and urg ed Clabourne to kill W eb s t e r.” Id. at 385. According ly

, whereas the court rejected Clabourne’s status o f being mentally ill because there was no causal link, the court rejected Clabourne’s passive personali t y and paranoia a s a basis for mitig ation u nder subsec t i o n ( 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 r e q u i r e m e nts of the law was sig nificantly impaired” because he had shown neither that “he

was passive or paranoid to a ny deg ree of impa i r ment [ n] o r that he had actually lost any c ontrol over his conduct when he committed the murder.” Id. a t 386; see Ariz

. Rev. Stat. § 13- 703(G)(1) (curren t v e rsion at Ariz

. Rev. Stat. § 13- 751(G)(1)).

W h en the A riz ona Supreme Court turned to Clabourne’s

me n t a l h ealth in the contex t of nonstatutory mitig ating circumstances, it addressed only the specific fact thatC L A B O U R N E V

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“Clabourne has a passive personality and that he is impulsive and easily manipulated by others.” I d. at 387. As t h e court had indicated e arlier, there was a plausible c ausal connection between these personality traits and the crime, g iven L ang ston’s manipulative p e rsonality and his leadership role in W ebster’s murder. See id. at 385. So, under the A riz o na Supreme Court’s causal nex us standard, those traits r equired weig hing as to nonstatutory mitig ation. T he court recog niz ed Clabourne’s passive personality and related characteristics to be “rooted to some deg ree in his mental health problems,” id.
at 387, but, as I have ex plained, it considered those problems distinct from his schiz ophrenia diag nosis. I t was thus only a s to the specific “ment al and personality d eficiencies” o f
p a s s i v e p e r s o n a l i t y , i m p u l s i v e n e s s , a n d manipulability

—which did have a co n n ection to the crime—that the court “ a fford[ ed] some nons t a t utory mitig ating weig ht.” Id.

That the court g ave some nonstatutory mitig ating w eig ht only to these specific mental a n d personality deficiencies, a nd
not to his schiz ophrenia, is further e vi d en c e d by the court’s justification (in the very nex t sentence) for ul t i m a t ely
g ranting those characteristics little mitig ating weig ht. S ee id. The c ourt hi g hlig hted Clabourne’s “active participation throug hout the six -hour ordeal and the fact that he personally
stra ng led a

nd stabbed W e bster,” holding that those facts “render[ e d] neg lig ible any mitig ating effect [ of] Clabourne’s problems and the traits they manifest.” Id. Clabourne’s active involvement in a leng thy crime was pertinent to weig hing the evidence that Clabourne had a passive, impulsiv e , a nd manipulable p ersonality

, but that active involvement would have no bearing on what mitig ating weigh t t o g ive a schiz ophrenia diag n osis.C L A B O U R N E V

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To hold that the A riz ona Supreme Court re f u s e d to consider Clabourne’s schiz ophrenia at the nonstatutory mitig ation phase thus does not, as the panel opinion sug g ests, require r eaching the “illog ical [] conclu[ sion] that the A riz o na Supreme Court c o nsidered [ Clabourne’s schiz o phrenia] diag nosis a

nd ex plicitly referenced it in one portio n o f its opinion but forg ot i t when considering nonstatutory mitig atio n , discussed just a f ew pag es later in the opinion.” Clabourne

, 7 45 F .3d at 374. The better inference, in lig ht o f McKinney a

nd based on the reasoning and structure of Az Clabourne

, is t h at the Ariz o na Supreme Court applied its causal n e x us test—which, McKinney held, was its g overning

s t a n dard at the time, consistently applied—to e x clude Clabourne’s schiz o p h renia from consideration as a nonstatutory

mitig ating factor.

This understanding is bolstered by the fa c t that the Ariz ona Supreme Court ex pressly appl i e d the causal nex us standard in the very nex t subsection of t h e n onstatutory mitig ation discussion. The c ourt rejected Clabourne’s

e vidence of his dy sfunctional family b ackg round beca u s e “[ w] hatever the d ifficulty in Cla b o u r n e ’s family life, he has failed to link his family backg round to his murderous conduct

or to o therw i s e s h ow how it affected his behavior.” Az Clabourne

, 194 Ariz

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

. 277, 293–94 (1996)).

The c onclusion that the Ariz o n a Supreme Court a pplied the unconstitutional causal nex us tes t to preclude consideration of Clabourne’s schiz ophrenia diag no s i s as a nonstatutory mitig ating fac t or is further supported by the Ariz ona Supreme Court’s ci t a t i o n to its own d ecision in Az Cl a b o urne in later cases w hen apply ing the causal nex us standard. See, e.g. , State v. Carlson

, 202 Ariz

. 570, 586C L A B O U R N E V

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(2002) (en b anc); State v. Cañez
, 202 Ariz

. 133, 164 (2002) (en banc). Those lat e r citations to A z Clabourne for the causal nex us standard are relevant in lig ht of M cKinney

. To the ex tent Towery v. Ryan
, 673 F .3d 9 33, 946 (9th Cir. 2012), l i m i t ed our review in habeas cases to the record in the c a s e before us, barring consideration of post-hoc characteriz ations of a decision by a s t ate court, Towery is inconsistent with McKinney

and so does not control. McKinney looked freely bey ond the record of the case before it, ex aminin g A r i z o na Supreme Court decisions in numerous other c ases to establish that court’s pattern of apply ing an unconstitutional rule. 1 Of
course, later Ariz ona Supreme Cour t c i tations to Az Clabourne f

or the causal nex us standard are not dispositive,

as a f e deral habeas court may g r ant relief only based on an

error in the decision adjudicating a petitioner’s claim. See 28 U.S.C. § 2254(d). B ut those later decisions do corroborate what a c areful reading of the opinion, in lig ht of McKinn e y , demonstrates. 2

Ag ain, tha t Az Clabourne a pplied the unconstitutional

nex us test disapproved in McKinne y i s n o wonder. A s M c K i n n e y h e l d

, t h e A r i z o n a c o u r t s a p p l i e d t h e unconstitutional nex u s test consistently during the period it d e c ided A z Clabourne

. “A g ood court [] does not apply a n establish ed rule erratically

, enforcing it arbitrarily in some

cases but not in other s

. W e have g reat respect for the

1 McKin n ey als o h eld T

o wery w as w

ro n g ly d ecid ed as to th e Ed d in g s issu e in th at case, f

u rth er u n d erm in in g To w ery ’ s p ersu asi v e v alu e. S ee McKin n ey , 8 1 3 F.3 d at 8 24

.

2 Sim ilarly

, th e p ro s ecu to r’ s arg u m en ts at Clab o u rn e’ s resen ten cin g h earin g reg ard in g a cau sal n ex u s co n f irm th at A rizo n a law req u ired su ch

a n ex u s at th e tim e Clab o u rn e w as resen ten ced , as McKin ney h eld

.C L A B O U R N E V

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S u p r e me Court of Ariz ona, whose institutional integ rity i s demonstrated, inter alia , by the consistent application of the

c ausal nex us test during the fifteen-year period it was i n effect.” McKinney
, 813 F. 3 d at 826. To hold, as does the
current panel opinion, t h a t t he Ariz ona Supreme Court for

some unex plained r eason did not apply its own prior precedents in thi s c as e alone is to disreg ard not only McKinnney but the Ariz o na Supreme Court’s own later references to this case as o ne in which the nex us r equirement

was applied.

I n sum, after M

cKinney
, I see no choic e b ut to g rant Clabourne’s p etition and remand this case for resentencing

. There is jus t no principled way to reconcile the panel opinion’s reasoning and holding with this court’s en banc opinion. I wo u ld r ehear this case and g rant the petition for h a b e a s corpus with reg ard to the penalty phase. I theref o r e strong ly dissent from the panel’s refusal to do either.