                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SCOTT D. CLABOURNE,                     No. 09-99022
             Petitioner-Appellant,
                                           D.C. No.
                v.                      4:03-cv-00542-
                                             RCC
CHARLES L. RYAN,
             Respondent-Appellee.
                                           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
nonstatutory mitigation), 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 Respondent-
Appellee.


                          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 2002, 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,
including Clabourne, 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
significantly impaired” 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 nonstatutory mitigation. 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 s s i v e per s o n al ity, i m p ul s i v e ne s s , 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 they manifest.” 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.
