McGill v. Shinn, No. 19-99002 (9th Cir. 2021)
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McGill was sentenced to death in 2004 for the murder of his former housemate, Perez. The Arizona Supreme Court affirmed McGill’s conviction and sentence and the state trial court denied post-conviction relief.
The Ninth Circuit affirmed the denial of his 28 U.S.C. 2254 petition for habeas relief, rejecting McGill’s claim of ineffective assistance of counsel at the penalty phase. The post-conviction review 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. Counsel’s preparation, investigation, and presentation of mitigation evidence was thorough and reasoned. 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. There is no evidence that counsel failed to uncover any reasonably available mitigation records. The court also rejected McGill’s uncertified claims 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 in light of Ring v. Arizona, in which the Supreme Court invalidated an Arizona statute that required the sentencing judge—not the jury—“to find an aggravating circumstance necessary for imposition of the death penalty.”
Court Description: 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 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.
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