James McKinney v. Charles Ryan

Opinion by Judge N.R. SMITH; Partial Concurrence and Partial Dissent by Judge WARDLAW.

OPINION

Petitioner James Erin McKinney, an Arizona state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition. The Arizona state court sentenced McKinney to death on each of two counts of first-degree murder for the 1991 killings of Christene Mertens and Jim McClain. We affirm the district court.

In this opinion we address three claims raised in McKinney’s petition: (1) the trial court’s use of dual juries at trial; (2) the trial court’s use of a leg brace as a security measure during trial; and (3) whether the sentencing judge properly considered all mitigating evidence under Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982). 1 McKinney failed to exhaust each of these claims except one of his several dual juries claims and the Lockett/Eddings claim. McKinney’s unexhausted claims are proee-durally defaulted, because he would now be barred from raising them to the Arizona state courts. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.2002) (citing Ariz.…

concurring in part and dissenting in part:

Because McKinney failed to exhaust the dual juries and shackling claims, I agree with the majority’s conclusion that denial of relief on these claims must be upheld. However, I disagree with its analysis of McKinney’s Eddings claim 1 and, therefore, dissent from Part III of the majority’s opinion. It is 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 and its progeny. The Arizona Supreme Court repeated that legal error, resulting in a decision that “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). Further, 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 in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254…

FACTS AND PROCEDURAL HISTORY

A. Background2

On February 28, 1991, McKinney and his half brother, co-defendant Michael Hedlund, committed the first in a string of five residential burglaries. Before this first burglary,

1 McKinney raises other uncertified claims on appeal. Because McKinney has not shown that the district court’s resolution of the other claims is “debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), we decline to expand the certificate of appealability to review the claims. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1102–04 (9th Cir. 1999) (per curiam). 2 These facts are drawn substantially from the Arizona Supreme Court’s opinion in State v. McKinney, 917 P.2d 1214, 1218–19 (Ariz. 1996) (en banc), superseded by statute on other grounds as stated in State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc). We presume the correctness of the Arizona court’s findings unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

MCKINNEY V. RYAN

McKinney and Hedlund (collectively, “Defendants”) were driving in Hedlund’s car with Chris Morris and Joe Lemon, discussing…