                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAMES ERIN MCKINNEY,                   No. 09-99018
           Petitioner-Appellant,
                                          D.C. No.
               v.                   2:03-cv-00774-DGC

CHARLES L. RYAN,
          Respondent-Appellee.            OPINION


      Appeal from the United States District Court
               for the District of Arizona
      David G. Campbell, District Judge, Presiding

               Argued and Submitted
        December 6, 2012—Pasadena, California

               Filed September 16, 2013

     Before: Kim McLane Wardlaw, Carlos T. Bea,
         and N. Randy Smith, Circuit Judges.

              Opinion by Judge N.R. Smith;
Partial Concurrence and Partial Dissent by Judge Wardlaw
2                      MCKINNEY V. RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

   The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction and capital sentence.

    The panel held that the use of dual juries, one for
petitioner and one for his co-defendant, did not violate clearly
established federal law, despite petitioner’s claim that this
method led to a prejudicial courtroom layout where petitioner
sat facing the jurors throughout trial. The panel held that
petitioner procedurally defaulted on his other dual juries
challenges.

    The panel held that petitioner procedurally defaulted on
his claim that the trial court violated his rights by requiring
him to wear a leg brace during trial.

    The panel rejected petitioner’s claim, under Lockett v.
Ohio, 438 U.S. 586 (1987), and Eddings v. Oklahoma,
455 U.S. 104 (1982), that the trial court did not adequately
consider mitigating factors in imposing the death penalty,
explaining that these cases only hold that a sentencer must
fully consider proffered mitigating evidence, and do not
affect a sentencer’s determination of the weight of the
evidence.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    MCKINNEY V. RYAN                          3

    Judge Wardlaw concurred in part and dissented in part.
She agreed with the majority’s conclusion that the denial of
relief as to petitioner’s dual juries and shackling claims must
be upheld for failure to exhaust them. However, she
disagreed with the majority’s analysis of the Eddings claim,
and would reverse the district court’s denial of relief and
instruct that court to grant the petition as to that claim.


                         COUNSEL

Ivan K. Mathew (briefed and argued) and Susan T. Mathew
(briefed), Mathew & Associates, Phoenix, Arizona, for
Petitioner-Appellant.

Jon G. Anderson, Assistant Attorney General, Capital
Litigation Division, Phoenix, Arizona, for Respondent-
Appellee.


                          OPINION

N.R. SMITH, Circuit Judge:

    Petitioner James Erin McKinney, an Arizona state
prisoner, appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas 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
4                      MCKINNEY V. RYAN

measure during trial; and (3) whether the sentencing judge
properly considered all mitigating evidence under Lockett v.
Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma,
455 U.S. 104 (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 procedurally 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. R.
Crim. P. 32.2(a)). As to the remaining claims, the Arizona
Supreme Court’s decision to deny relief was not contrary to,
nor an unreasonable application of, clearly established federal
law or based on an unreasonable determination of the facts
before that court. See 28 U.S.C. § 2254(d).

            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                       5

McKinney and Hedlund (collectively, “Defendants”) were
driving in Hedlund’s car with Chris Morris and Joe Lemon,
discussing potential targets. Brandishing his gun, McKinney
stated that he would shoot anyone that they found at home
during the burglaries. Hedlund said that he would beat
anyone that he encountered in the head.

    At the time, Defendants had learned from Morris and
Lemon that Christene Mertens supposedly kept thousands of
dollars in an orange juice container in her refrigerator.
Therefore, Defendants and Morris and Lemon intended to
burglarize Mertens’s home on the first night of the burglary
spree. However, Mertens came home and scared the would-
be burglars away. As a result, the four of them chose a
different house to burglarize, but obtained nothing of value
from the burglary.

    The next night, McKinney, Hedlund, and Morris
committed two more burglaries. Lemon was not involved.
McKinney and Morris stole a .22 revolver, twelve dollars,
some wheat pennies, a tool apron, and a Rolex
watch—splitting the “proceeds” with Hedlund after the
crimes. When the homeowner returned home during the third
burglary, McKinney and Morris ran away, leaving the
homeowner unharmed. However, after the burglary,
McKinney remarked that he and Morris “should have stayed
and [McKinney] would have shot [the homeowner].”

    On March 9, 1991, McKinney and Hedlund returned to
the Mertens home for the fourth burglary. When they entered
the residence, Defendants found Mertens home alone and
attacked her. After the attack Mertens had both gunshot and
stab wounds. However, the medical examiner certified the
cause of death as “a penetrating contact gunshot wound to the
6                   MCKINNEY V. RYAN

head.” Defendants ransacked the house and stole $120 in
cash.

    Defendants committed the fifth burglary and second
murder at the home of Jim McClain on March 22, 1991.
Defendants knew McClain, because Hedlund had bought a
car from him about six months before the murder. McClain’s
house was ransacked during the course of the burglary, and
he was shot in the back of the head while sleeping.
Defendants stole a pocket watch, three handguns, and
McClain’s car. Defendants later tried to sell the stolen guns.

    McKinney was tried on two counts of first degree murder,
two counts of burglary, one count of theft, and one count of
attempted theft. The trial court tried Defendants together, but
empaneled separate juries to decide the guilt of each
Defendant. The trial court required both Defendants to wear
a leg brace as a security measure throughout the trial.
McKinney’s jury found him guilty of all charges, except the
attempted theft charge. The trial judge sentenced McKinney
to death on each first degree murder conviction. State v.
McKinney, 917 P.2d 1214, 1218 (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).

B. Post-conviction proceedings

   The Arizona Supreme Court upheld McKinney’s
convictions and sentence on direct appeal. McKinney,
917 P.2d at 1234.

    McKinney thereafter challenged his convictions and
sentence in post-conviction collateral proceedings. The
Maricopa County superior court (the “State PCR Court”)
                    MCKINNEY V. RYAN                          7

concluded that none of the claims raised in McKinney’s
operative petition for post-conviction relief (the “PCR
Petition”) presented material issues of fact or law to warrant
further proceedings. The State PCR Court summarily
dismissed the petition. McKinney appealed the dismissal of
the PCR Petition to the Arizona Supreme Court, which denied
review on all claims relevant to this appeal.

    Thereafter, McKinney raised 26 claims in his petition for
writ of habeas corpus to the U.S. District Court for the
District of Arizona. The district court denied relief on a
number of these claims in 2006 and on the remaining claims
in 2009. In its order denying relief, the district court granted
a certificate of appealability (“COA”) on the issues of
whether the trial court’s use of dual juries or a leg brace
violated McKinney’s rights. The district court denied a COA
on the remaining issues.

                STANDARD OF REVIEW

    “We review de novo the district court’s decision to grant
or deny a petition for a writ of habeas corpus.” Rhoades v.
Henry, 598 F.3d 495, 500 (9th Cir. 2010).

    The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) governs this case. See Lindh v. Murphy,
521 U.S. 320, 336–37 (1997); Lopez v. Schriro, 491 F.3d
1029, 1036–38 (9th Cir. 2007). A petitioner must overcome
a high threshold to obtain relief under AEDPA:

        Federal habeas relief may not be granted for
        claims subject to § 2254(d) unless it is shown
        that the earlier state court’s decision was
        contrary to federal law then clearly
8                   MCKINNEY V. RYAN

        established in the holdings of [the Supreme]
        Court, § 2254(d)(1); or that it involved an
        unreasonable application of such law,
        § 2254(d)(1); or that it was based on an
        unreasonable determination of the facts in
        light of the record before the state court,
        § 2254(d)(2).

Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 785
(2011) (internal quotation marks and citation omitted).

    The “only definitive source of clearly established federal
law under AEDPA is the holdings (as opposed to the dicta) of
the Supreme Court as of the time of the state court decision.”
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003),
overruled on other grounds by Lockyer v. Andrade, 538 U.S.
63 (2003)). If Supreme Court “cases give no clear answer to
the question presented, . . . it cannot be said that the state
court unreasonably applied clearly established Federal law.”
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal
quotation marks omitted). In other words, “‘[i]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that
has not been squarely established by [the Supreme Court].’”
Richter, 131 S. Ct. at 786 (quoting Knowles v. Mirzayance,
556 U.S. 111, 122 (2009)).

    In cases where a petitioner identifies clearly established
federal law and challenges the state court’s application of that
law, our task under AEDPA is not to decide whether a state
court decision applied the law correctly. See id. at 785.
Rather, we must decide whether the state court decision
applied the law reasonably. See id. (“‘[A]n unreasonable
application of federal law is different from an incorrect
                        MCKINNEY V. RYAN                                 9

application of federal law.’” (quoting Williams v. Taylor,
529 U.S. 362, 410 (2000)). If the state court applied the law
reasonably, we must deny relief. See id. Thus, we grant
relief only “in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts
with [the Supreme Court’s] precedents.” Id. at 786.

                           DISCUSSION

                      I. Dual Juries Claims

    McKinney raises a number of claims based on the trial
court’s use of dual juries. However, McKinney exhausted3
only one of them in the state courts, as AEDPA requires—his
claim that the use of dual juries led to a prejudicial courtroom
layout where McKinney sat facing the jurors throughout trial.
McKinney’s “courtroom layout” claim fails, because he has
failed to identify clearly established federal law that would
provide the basis for relief under § 2254(d)(1). McKinney
failed to exhaust any of the other potential dual juries claims
and would now be barred from raising these claims in state
court. See Beaty, 303 F.3d at 987 (citing Ariz. R. Crim. P.
32.2(a)). Accordingly, McKinney’s “other” dual juries




 3
  The exhaustion doctrine requires a petitioner to provide the state courts
with the opportunity to rule on his federal constitutional claims before
presenting these claims to a federal habeas court. See King v. Ryan,
564 F.3d 1133, 1138 (9th Cir. 2009); 28 U.S.C. § 2254(b)(1) (proving that
a writ of habeas corpus shall not be granted unless “the applicant has
exhausted the remedies available in the courts of the State”).
10                       MCKINNEY V. RYAN

claims are procedurally defaulted,4 and he has not shown
cause or prejudice to excuse the default. See id.

A. Background and procedural history

     Before trial, Hedlund moved to sever his case from
McKinney’s, and the State did not oppose the motion. The
trial court initially granted the motion to sever. The trial
court later asked the parties for briefing on the idea of using
dual juries.

    Thereafter, the trial court held a hearing on the use of dual
juries. The State opposed the practice based on a perceived
state procedural obstacle set forth in State v. Lambright,
673 P.2d 1 (Ariz. 1983) (en banc), overruled by Hedlund v.
Sheldon, 840 P.2d 1008 (Ariz. 1992) (en banc). McKinney
shared the State’s Lambright concern and argued that it
would be improper for the court to employ an untested dual
jury procedure. McKinney also argued that severance was
required to avoid the introduction of impermissible,
incriminating testimony under Bruton v. United States,
391 U.S. 123 (1968).

    The trial court concluded that the use of the dual juries
would not impede Defendants’ right to fair trial, and found no
inherent prejudice in the use of dual juries. At trial, both

 4
   A state prisoner procedurally defaults federal claims if he fails to raise
them as federal claims in state court or if, in raising the claims, he fails to
comply with applicable state procedural rules. Coleman v. Thompson,
501 U.S. 722, 730–31 (1991). The state can successfully assert a
procedural default defense to federal habeas review unless the prisoner
can show both “cause” for the procedural default and actual prejudice, or
the prisoner demonstrates that failure to consider the claims will result in
a fundamental miscarriage of justice. Id. at 750.
                     MCKINNEY V. RYAN                          11

Defendants’ juries were present in the courtroom, except
during “the reading of charges, opening statements, closing
arguments, and testimony related to a particular defendant’s
inculpatory statements.” Both before and during trial, the
trial court reminded counsel to preserve the integrity of the
dual jury procedure and to avoid eliciting testimony non-
admissible against the other codefendant under Bruton.

     Before trial, McKinney challenged the use of dual juries
in a special action to the Arizona Court of Appeals. See
Hedlund, 840 P.2d at 1009. The court of appeals reversed,
holding that the trial court exceeded its authority under the
Arizona Rules of Criminal Procedure and the Arizona
Supreme Court’s decision in Lambright. Id. The Arizona
Supreme Court reversed the court of appeals and affirmed the
trial court’s decision to use dual juries. Id. at 1011.

    On direct appeal of his conviction and sentence,
McKinney claimed that the dual juries caused the courtroom
layout “with Defendants facing the jurors, [to be] intimidating
and resulted in fundamental error requiring reversal.”
McKinney, 917 P.2d at 1232. The Arizona Supreme Court
rejected this argument, concluding that McKinney could not
demonstrate prejudice and provided no authority for “a
constitutional right to a standard American courtroom
arrangement.” Id.

    McKinney raised the “courtroom layout” issue again in
his PCR Petition. The State PCR Court rejected McKinney’s
argument that the courtroom layout “tainted” the proceedings.
McKinney also argued in the PCR Petition that the use of the
dual juries violated his “right to a fundamentally fair trial” for
a number of other reasons. However, McKinney did not
12                  MCKINNEY V. RYAN

invoke the U.S. Constitution, nor did he cite to any state or
federal cases.

     McKinney raised the same “courtroom layout” claim in
his federal habeas petition. McKinney also made a number
of other arguments that the use of the dual juries prejudiced
his right to a fair trial. The federal district court addressed
each sub-part of McKinney’s dual juries claim. Of those, the
district court concluded that only McKinney’s “courtroom
layout” claim was even “arguably exhausted in state court.”
Despite this conclusion, however, the district court rejected
all of McKinney’s arguments on the merits.

B. “Courtroom layout” claim

    McKinney exhausted his “courtroom layout” claim. “To
exhaust his Arizona remedies, [a petitioner must] give the
Arizona courts a fair opportunity to act on his federal due
process claim before presenting it to the federal courts.”
Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)
(internal quotation marks omitted). In so doing, a petitioner
must apprise the state court that he is “making a claim under
the U.S. Constitution, and describe both the operative facts
and the federal legal theory on which [the] claim is
based . . . .” Id. at 999 (internal quotation marks and citation
omitted). This can be accomplished by citing “specific
provisions of the federal constitution or . . . federal or state
cases involving the legal standard for a federal constitutional
violation.”      Id.     “Mere ‘general appeals to broad
constitutional principles, such as due process, equal
protection, and the right to a fair trial,’ do not establish
exhaustion.” Id. (quoting Hiivala v. Wood, 195 F.3d 1098,
1106 (9th Cir. 1999) (per curiam)); see also Fields v.
Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (holding
                    MCKINNEY V. RYAN                        13

that a petitioner failed to exhaust a federal due process claim
where petitioner’s briefing to the state court mentioned the
federal constitution only twice and due process only once).
In short, a petitioner must “alert the state courts to the fact
that he [is] asserting a claim under the United States
Constitution.” Hiivala, 195 F.3d at 1106.

    McKinney set forth the “federal legal theory” underlying
his prejudicial courtroom layout claim in his opening brief to
the Arizona Supreme Court. McKinney claimed: “The
bizarre and prejudicial seating arrangement deprived the
appellant of due process under the Arizona and Federal
Constitutions.” The brief’s table of contents also cites the
page containing that sentence under its entry for the “Fifth
Amendment.” Taken together, the argument and the table of
contents allude to a specific provision of the U.S.
Constitution. McKinney’s brief also invokes the U.S.
Constitution numerous times in reference to other claims.
Accordingly, McKinney’s brief was sufficient to alert the
Arizona Supreme Court that McKinney raised a federal
claim. See Robinson v. Schriro, 595 F.3d 1086, 1103 (9th
Cir. 2010) (“This is not a case where the petitioner failed to
make clear that he was invoking a federal right, or where the
petitioner’s general appeal to a constitutional guarantee was
too vague to put the state court on notice of the federal
claim.” (internal citations and quotation marks omitted));
Hiivala, 195 F.3d at 1106. Thus, we conclude that McKinney
exhausted his “courtroom layout” claim.

    Turning to the merits of McKinney’s “courtroom layout”
claim, we must determine whether the Arizona Supreme
Court’s decision rejecting this claim was contrary to, or an
unreasonable application of, clearly established federal law.
We conclude that it was not. McKinney cites no Supreme
14                   MCKINNEY V. RYAN

Court case, and our search reveals no case, that would
provide the basis for relief under § 2254(d)(1). Accordingly,
we echo the Arizona Supreme Court’s McKinney opinion,
which held: “McKinney has not demonstrated any prejudice
and provides no authority for his argument that there is a
constitutional right to a standard American courtroom
arrangement, and we decline to invent such a right.”
917 P.2d at 1232. McKinney is not entitled to relief on his
prejudicial courtroom layout claim.

C. McKinney’s “other” dual juries claims

    In addition to the “courtroom layout” claim, McKinney
makes several arguments in federal court that the use of the
dual juries denied him his right to a fair trial. McKinney
claims the dual juries prejudiced him, because: (1)
Defendants presented antagonistic defenses, which led to
prejudicial leading questions, limited cross-examination, and
Bruton violations; and (2) the procedure necessitated
increased security and the use of a leg brace during trial. The
State argues that McKinney procedurally defaulted these
claims by failing to fairly present them to the state court. We
agree.

     1. McKinney failed to exhaust his “other” courtroom
        layout claims.

    McKinney’s Arizona Supreme Court briefing did not set
forth the operative facts or federal legal theory for any dual
juries claim apart from the “courtroom layout” claim. The
same is true of the PCR Petition. While the PCR Petition
makes a general appeal to McKinney’s right to “due process”
and a “fair trial,” this is insufficient to exhaust. See Castillo,
399 F.3d at 998; Hiivala, 195 F.3d at 1106. Accordingly,
                       MCKINNEY V. RYAN                               15

McKinney failed to exhaust any potential claim arising out of
the trial court’s use of dual juries, except the “courtroom
layout” claim.

    McKinney argues that his claims were exhausted, because
Hedlund raised the claims to the Arizona Supreme Court.
However, “[t]he questions raised by [McKinney] involve
constitutional privileges which are personal to him, and
therefore an appeal by his co-defendant can not exhaust [his]
remedies in the state courts.” Williams v. Nelson, 431 F.2d
932, 932–33 (9th Cir. 1970) (per curiam).5 Accordingly,
McKinney failed to exhaust these claims because he failed to
raise them personally to the state court.

      2. McKinney’s unexhausted dual juries claims are
         procedurally defaulted.

    “A claim is procedurally defaulted ‘if the petitioner failed
to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims
procedurally barred.’” Beaty, 303 F.3d at 987 (quoting
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
McKinney’s dual jury claims are procedurally defaulted,
because he is barred “under Arizona law from going back to
state court.” Id.; see also Ariz. R. Crim. P. 32.2(a), 32.4(a).6

  5
    Contrary to McKinney’s argument, the subsequent case, Harris v.
Superior Court of the St. of Cal., Los Angeles Cnty., 500 F.2d 1124, 1126
(9th Cir. 1974) (en banc), did not affect this portion of Williams.
  6
     Arizona Rules of Criminal Procedure 32.2(a) and 32.4(a) provide
alternate bases for our conclusion that McKinney’s claims would now be
barred. Rule 32.2(a)(3) precludes “any claim that could have been
brought on direct appeal or in a prior PCR petition.” Henry v. Ryan, ___
16                   MCKINNEY V. RYAN

    “Nonetheless, we will review the merits if [McKinney]
can show cause and prejudice or, alternatively, a fundamental
miscarriage of justice.” Beaty, 303 F.3d at 987. While
McKinney mentioned these exceptions in his briefing, he
made no argument that they apply to excuse the procedural
default of his dual juries claims. At oral argument, when
asked whether he could show cause, McKinney argued that
he could establish cause under Martinez v. Ryan, 132 S. Ct.
1309 (2012). McKinney’s invocation of Martinez suggests
that McKinney argues that the ineffective assistance of his
PCR counsel constitutes cause to overcome the procedural
default of his other dual juries claims. However, it is well-
settled that ineffective assistance of PCR counsel does not
establish cause. See Coleman, 501 U.S. at 753–57. While
Martinez created a “narrow exception” to this rule, 132 S. Ct.
at 1315, the Martinez exception does not apply to
McKinney’s dual juries claims. The Supreme Court made
clear that the exception applies only when the underlying
constitutional claim is ineffective assistance of trial counsel.
Id. Thus, McKinney cannot show cause and his dual juries
claims are procedurally defaulted.

                   II. “Shackling” Claim

    McKinney failed to exhaust his “shackling” claim.
Because McKinney would now be barred from bringing the
claim in state court, Beaty, 303 F.3d at 987, the claim is
procedurally defaulted. McKinney has failed to show cause
and prejudice to overcome the default.




F.3d ___, 2013 WL 3027404, at *13 (June 19, 2013). Rule 32.4 bars
untimely claims. See, e.g., Beaty, 303 F.3d at 987.
                    MCKINNEY V. RYAN                         17

A. Background and procedural history

    The trial court required both McKinney and Hedlund to
wear a leg brace during trial. The trial court rejected
Defendants’ numerous objections to the use of the leg braces.
The trial court reasoned that the Defendants’ close proximity
to jurors and court staff, the violent nature of the crimes, and
evidence of McKinney’s previous escape attempt and a
subsequent escape plot warranted the extra security measures.
The trial court later asked the State to make a specific record
of the security concerns. Although McKinney’s motion for
a new trial is silent on this issue, Hedlund raised the
“shackling” issue at the post-trial phase. Similarly,
McKinney did not raise the “shackling” issue to the Arizona
Supreme Court on direct appeal. However, Hedlund did raise
the claim, which was rejected. See McKinney, 917 P.2d at
1222–23. McKinney also failed to raise the issue in his PCR
Petition.

    The district court noted that McKinney did not raise the
“shackling” issue on direct appeal or in his PCR Petition.
The district court rejected McKinney’s argument that the
Arizona Supreme Court decided the issue as part of its
“fundamental error review.” However, rather than decide that
the claim was procedurally defaulted, the district court denied
the claim as meritless.

B. McKinney’s “shackling” claim is procedurally
   defaulted.

    McKinney’s “shackling” claim is not exhausted, because
he failed to raise it to the Arizona Supreme Court or in his
PCR Petition. As with the dual jury claims, we reject
McKinney’s argument that the claim was exhausted by virtue
18                      MCKINNEY V. RYAN

of Hedlund raising it on direct appeal. See Williams,
431 F.2d at 932–33. We also reject McKinney’s argument
that this claim was exhausted due to the Arizona Supreme
Court’s fundamental error review. “Where the parties did not
mention an issue in their briefs and where the court did not
mention it was considering that issue sua sponte, there is no
evidence that the appellate court actually considered the
issue, regardless of its duty to review for fundamental error,
and the issue cannot be deemed exhausted.” Moormann v.
Schriro, 426 F.3d 1044, 1057 (9th Cir. 2005); see also
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.
1996) (“Under Arizona law, fundamental error review does
not prevent subsequent procedural preclusion.”).

    This unexhausted claim is now procedurally barred,
because McKinney would be barred from raising it to the
state court. Beaty, 303 F.3d at 987; see also Ariz. R. Crim. P.
32.2(a), 32.4. Further, McKinney makes no argument for
“cause” to excuse the default. Although McKinney makes
numerous arguments of prejudice and injustice, he does not
support these arguments with citations to any evidence in the
record.7 Thus, McKinney’s “shackling” claim is procedurally
barred.



     7
      The only evidence offered to the state court on prejudice were
statements from members of Hedlund’s jury. Even if this evidence were
probative of the McKinney jury’s prejudice, it actually cuts against a
prejudice finding. While jurors clearly saw the leg brace, the only jurors
interviewed stated that the leg brace had no bearing on their verdict.
While not “dispositive” of the prejudice issue, see Holbrook v. Flynn,
475 U.S. 560, 570 (1986), the jurors’ statements arguably have some
weight. Unlike the juror statements that were given “little stock” in
Holbrook, the jurors gave their impressions of the leg brace in this case
after the trial was over, not during voir dire. See id.
                        MCKINNEY V. RYAN                               19

                  III. Lockett/Eddings Claim.8

    McKinney claims that the trial court did not adequately
consider mitigating factors in imposing the death penalty,
thereby violating McKinney’s rights under Lockett, Eddings,
and their progeny. McKinney argues that the trial court failed
to consider mitigation evidence,9 finding that McKinney’s
abusive childhood and its psychological effects did not affect
McKinney’s “ability to perceive, comprehend or control his
actions.” The State counters that the Arizona state courts
fully considered all mitigating evidence and did not apply an
unconstitutional nexus test. The State argues that the
Lockett/Eddings line of cases holds only that a sentencer must
fully consider proffered mitigation evidence and does not
affect a sentencer’s determination of its weight. We agree.
Because the record makes clear that the trial court adequately
considered and weighed McKinney’s mitigation evidence, we
deny relief.




     8
    The district court declined to grant a COA on this issue. However,
because McKinney exhausted this claim and because we conclude that the
district court’s resolution of the issue is “debatable amongst jurists of
reason,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), we address it.
 9
   In addition to evidence of childhood abuse and psychology, McKinney
argues that the trial court failed to consider McKinney’s level of
participation in the murders. He develops this argument, without citation,
in a single sentence: “The trial judge noted there is no proof McKinney
killed Ms. Mertens at the Hedlund sentencing but not at Mr. McKinney’s
sentencing.” Even assuming this properly characterizes the record, the
record elsewhere reveals that the judge specifically considered
McKinney’s level of participation in the crimes at sentencing. The trial
court specifically found “substantial participation in the McClain homicide
by Mr. McKinney.”
20                 MCKINNEY V. RYAN

A. Background and procedural history

     McKinney had a traumatic childhood. At sentencing, the
trial court heard evidence from McKinney’s aunt and half-
sister of various abuses against McKinney by his father and
step-mother. McKinney’s would-be care givers neglected
him by forcing him to live in appalling conditions.
McKinney did not have adequate clothing or food.
McKinney was also frequently beaten and locked out of the
house in extreme weather.

    The trial court also heard evidence that these abuses led
McKinney to develop Post-Traumatic Stress Disorder
(“PTSD”).       After administering a number of tests,
McKinney’s expert, Dr. McMahon, testified that McKinney
could be “emotionally overwhelmed by environmental stress
and act in poorly-judged ways.” Dr. McMahon concluded
that McKinney had “learning disabilities” but tested negative
for “significant neuropsychological dysfunction.” Dr.
McMahon testified that McKinney began abusing drugs and
alcohol to distract him from his environmental stressors.
Finally, Dr. McMahon opined that a sudden confrontation by
Mertens during the course of the burglary could trigger a
violent response from McKinney and that McKinney would
have a “high likelihood” of diminished capacity in such an
instance.

   The trial court credited the testimony establishing
McKinney’s “traumatic childhood.” The trial court also
accepted, for the purpose of sentencing, Dr. McMahon’s
PTSD diagnosis. Nevertheless, the trial concluded:

       [A]fter considering all of the mitigating
       circumstances, the mitigating evidence that
                   MCKINNEY V. RYAN                       21

       was presented by the defense in this case as
       against the aggravating circumstances, and
       other matters which clearly are not set forth in
       the statute which should be considered by a
       court, I have determined that given . . . the
       aggravating circumstances which have been
       proven beyond a reasonable doubt by the
       State with respect to each of these homicides
       in Counts I and III have concluded that the
       mitigating circumstances simply are not
       sufficiently substantial to call for a leniency
       under all the facts of this case.

    The Arizona Supreme Court rejected McKinney’s
argument that the trial court did not adequately take into
account McKinney’s abusive childhood and its effects.
McKinney, 917 P.2d at 1234. The court reasoned that “the
judge gave full consideration to McKinney’s childhood and
the expert testimony regarding the effects of that
childhood . . . .” Id. The court explained that evidence of a
traumatic childhood “does not necessarily have substantial
mitigating weight absent a showing that it significantly
affected or impacted the defendant’s ability to perceive,
comprehend, or control his actions.” Id. (emphasis added).

   The federal district court concluded that the Arizona
Supreme Court’s decision to uphold the sentence was not
contrary to, nor an unreasonable application of,
Lockett/Eddings.
22                     MCKINNEY V. RYAN

B. McKinney has failed to show that the Arizona
   Supreme Court unreasonably applied Lockett/Eddings.

       In Lockett, the Supreme Court held:

          [T]he Eighth and Fourteenth Amendments
          require that the sentencer . . . not be precluded
          from considering, as a mitigating factor, any
          aspect of a defendant’s character or record
          and any of the circumstances of the offense
          that the defendant proffers as a basis for a
          sentence less than death. . . .

          Given that the imposition of death by public
          authority is . . . profoundly different from all
          other penalties, . . . [the sentencer must be free
          to give] independent mitigating weight to
          aspects of the defendant’s character and
          record and to circumstances of the offense
          proffered in mitigation . . . .

438 U.S. at 604–05 (finding Ohio death penalty statute
invalid where it permitted consideration of only three
mitigating circumstances).

    Later, in Eddings, the Supreme Court applied Lockett in
a case where the trial judge found he could not consider in
mitigation evidence of the defendant’s family history.10




  10
    In Eddings, the sentencing judge made clear, on the record, that he
could not consider certain evidence as a matter of law. He stated: “[T]he
Court cannot be persuaded entirely by the . . . fact that the youth was
                        MCKINNEY V. RYAN                              23

455 U.S. at 112–13. The appeals court affirmed the trial
court, finding that the mitigation evidence was “not relevant
because it did not tend to provide a legal excuse” for
responsibility for the crime. Id. at 113. The Supreme Court
reversed, explaining that “[j]ust as the State may not by
statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to
consider, as a matter of law, any relevant mitigating
evidence. . . .The sentencer . . . may determine the weight to
be given relevant mitigating evidence. But they may not give
it no weight by excluding such evidence from their
consideration.” Id. at 113–15.

    In Tennard v. Dretke, the Supreme Court rejected a
“nexus test” that would find mitigating evidence relevant only
where it bears a causal nexus to the crime. 542 U.S. 274, 287
(2004) (“[W]e cannot countenance the suggestion that low IQ
evidence is not relevant mitigating evidence . . . unless the
defendant also establishes a nexus to the crime.”). Citing
Lockett and Eddings, the Court cautioned that the jury must
be given an effective vehicle with which to weigh mitigating
evidence so long as the defendant has met a “low threshold
for relevance,” which is satisfied by “evidence which tends
logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have mitigating
value.” Id. at 284–85.

    In Smith v. Texas, the Court again considered the use of
a nexus test to determine whether mitigating evidence is
relevant. 543 U.S. 37, 45 (2004). The Court “unequivocally


sixteen years old when this heinous crime was committed. Nor can the
Court in following the law, in my opinion, consider the fact of this young
man’s violent background.” 455 U.S. at 109 (alterations in original).
24                   MCKINNEY V. RYAN

rejected” any test requiring a causal nexus between mitigating
evidence and the crime. Id.

    We have held that Tennard and Smith are retroactively
applicable to decisions such as the Arizona Supreme Court’s
1996 decision in this case. See Schad v. Ryan, 671 F.3d 708,
723 (9th Cir. 2009) (per curiam), cert. denied, 133 S. Ct. 432
(2012). Thus, under clearly established federal law, we
review (1) whether the trial court considered all relevant
mitigating evidence, as required by Lockett and Eddings; and,
(2) whether the Arizona Supreme Court applied an
unconstitutional causal nexus test to exclude evidence
proffered in mitigation, contrary to Tennard and Smith.

   In this case, the Arizona courts did not improperly
exclude any of McKinney’s mitigating evidence. Further, the
Arizona courts did not employ an unconstitutional nexus test.
Thus, the Arizona Supreme Court’s decision to affirm
McKinney’s sentence was not contrary to, nor an
unreasonable application of, clearly established federal law.

     1. All mitigating evidence was considered as required
        by Eddings.

     The Arizona Supreme Court did not violate Eddings when
it concluded that the trial court considered all the mitigation
evidence before it. The Arizona Supreme Court clearly
understood and applied the controlling Supreme Court
precedent. See McKinney, 917 P.2d at 1227. It concluded:
“[T]he judge considered McKinney’s abusive childhood and
its impact on his behavior and ability to conform his conduct
and found it insufficiently mitigating to call for leniency.” Id.
at 1234 (emphasis added)). The Arizona Supreme Court did
                        MCKINNEY V. RYAN                                25

not say that the evidence was irrelevant or could not be
considered.11 Id.

    We reject McKinney’s and the dissent’s implication that
the Arizona Supreme Court’s decision merely paid lip service
to Eddings, and the trial judge did not actually consider the
evidence. As an initial matter, the trial court’s certification
that it considered all the mitigation evidence is entitled to
some weight. See Lopez, 491 F.3d at 1037 (“‘We must
assume that the trial judge considered all this evidence before
passing sentence. For one thing, he said he did.’” (quoting
Parker v. Dugger, 498 U.S. 308, 314 (1991))). In addition,
the record shows that the trial court’s commitment to Eddings
was more than semantic—the trial judge genuinely weighed
the mitigation evidence’s persuasive value. The trial judge
expressly credited the evidence of childhood abuse,
describing it as “beyond the comprehension and
understanding of most people who have not grown up under
those circumstances.” The trial court also accepted, for the
purpose of sentencing, Dr. McMahon’s PTSD diagnosis.
Further, even when the court discussed the possible link
between McKinney’s PTSD and the crimes, the record shows
that it considered all the evidence and weighed the evidence’s
probative value. The trial judge stated:

         I found it interesting Dr. McMahon also
         indicated that one of the techniques—or the


   11
      Other cases pre-dating or contemporaneous with McKinney also
demonstrate that the Arizona Supreme Court was well-aware of the
Lockett/Eddings line of cases and the requirement that the sentencing court
fully consider all mitigating evidence. See, e.g., State v. Towery, 920 P.2d
290, 310–11 (Ariz. 1996) (en banc); State v. Gonzales, 892 P.2d 838, 851
(Ariz. 1995) (en banc).
26                      MCKINNEY V. RYAN

         manifestations of Post-traumatic Stress
         Syndrome that might be expected were that
         the individual be depressed, would be
         withdrawn. It appears to me that defense
         attempted to demonstrate that in their
         presentation of mitigating circumstances and
         that such an individual would expect to avoid
         contacts which would either exacerbate or
         recreate the trauma that would bring on this
         type of stress from childhood. And yet, rather
         than continue to avoid any of these
         circumstances after the Mertens homicide, it
         appears that the same thoughtful, reflective
         planning went into, then, the burglary of a
         known target to both the defendant and the co-
         defendant, Mr. McClain.

Other portions of the sentencing transcript similarly
demonstrate the judge’s deliberative process as he considered
the PTSD evidence and weighed it against the other evidence
presented. This careful analysis of Dr. McMahon’s testimony
contradicts McKinney’s and the dissent’s claim that the
sentencing judge excluded the evidence, or refused to
consider it, as a matter of law.12


 12
    This obvious deliberation is in sharp contrast to the sentencing court
record in Towery. In that case, we upheld the Arizona Supreme Court’s
decision to deny relief under Eddings despite some language in the
sentencing transcript indicating that mitigating evidence was excluded, or
not considered. See 673 F.3d at 936–37, 946–47. For example, the
sentencing judge stated: “[A] difficult family background in and of itself,
is not a mitigating circumstance.” Id. at 936. The sentencing court went
on to explain that “[a] difficult family background is a relevant mitigating
circumstance, if a defendant can show that something in that background
had an [e]ffect or impact on his behavior that was beyond the defendant’s
                        MCKINNEY V. RYAN                               27

    The dissent selectively quotes passages from the
sentencing transcript to argue that the Arizona state courts did
not properly consider evidence of PTSD. There are two
problems with the dissent’s approach. First, it reads too much
into certain passages, notably the sentencing judge’s
discussion of the psychological study submitted as Exhibit 3.
Contrary to the dissent’s view, nothing in the sentencing
judge’s discussion of PTSD shows that he believed it was
“irrelevant” as a matter of law. At most, the discussion of
PTSD shows that the sentencing judge was equivocal about
what effect in mitigation the PTSD diagnosis should have.
This strengthens the conclusion that the sentencing judge
considered the evidence and did not simply exclude it.
However, even if the sentencing judge created some
ambiguity in the record by “thinking out loud” as he
considered the PTSD evidence, that ambiguity should be cast
in favor of the state. See Poyson v. Ryan, 711 F.3d 1087,
1099 (9th Cir. 2013).

    Similarly, the dissent overlooks passages where the
sentencing judge clearly stated that he considered “all of the
mitigating circumstances.” Contrary to the dissent’s view, we
do not fail to take into account the difference between the
sentencing judge’s treatment of the PTSD and other
mitigation evidence. There is no difference in treatment. The
record clearly shows the sentencing judge’s deliberation as he
considered each piece of mitigation evidence. Thus, the
record as a whole contradicts the dissent’s view that the


control.” Id. (emphasis added) (second alteration in original). Here, the
record makes clear that both the sentencing court and the Arizona
Supreme Court fully considered all mitigating evidence. Thus, the proper
resolution of the Eddings issue in this case is even clearer than it was in
Towery.
28                  MCKINNEY V. RYAN

Arizona state courts rejected the PTSD evidence as a matter
of law.

     Because the record shows that the sentencing judge
considered all the potential mitigation evidence, we reject
McKinney’s and the dissent’s reliance on a number of our
past cases granting relief. See, e.g., Williams v. Ryan,
623 F.3d 1258 (9th Cir. 2010); Styers v. Schriro, 547 F.3d
1026, 1035–36 (9th Cir. 2008); Lambright v. Schriro,
490 F.3d 1103, 1115 (9th Cir. 2007). Those cases provide
little guidance to inform our AEDPA review. For example,
in Williams, we granted relief under Lockett/Eddings.
However, unlike the state courts here, the state courts in
Williams held that the mitigating evidence “could not be
considered as a mitigating factor of any kind.” 623 F.3d. at
1270 (internal quotation marks omitted). This statement
resembles the clear statement from Eddings that the trial
judge excluded mitigation evidence as a matter of law. See
Eddings, 455 U.S. at 109. Styers and Lambright, also cited
by McKinney and the dissent, contain similar statements. See
Styers, 547 F.3d at 1035–36 (granting relief under Eddings
where Arizona Supreme Court analysis made clear that
mitigating evidence was not considered); Lambright,
490 F.3d at 1115 (granting relief under Lockett where the trial
court did not consider “any evidence without an explicit
nexus to the crime, or . . . gave such evidence de minim[i]s
weight”).

    The record in this case does not contain the same clear
statement of exclusion that appears in those cases, rendering
them inapposite. See Schad, 671 F.3d at 724 (distinguishing
Styers and Lambright, because “[i]n both of those cases . . .
it was clear from the record that the lower court had applied
the unconstitutional nexus test and had excluded mitigation
                        MCKINNEY V. RYAN                               29

evidence” (emphasis added)). We will not second-guess the
Arizona state courts’ application of Eddings where the record
shows that the courts considered and weighed all mitigation
evidence13 and did not make a clear, affirmative statement of
exclusion. See id. (“Absent a clear indication in the record
that the state court applied the wrong standard, we cannot
assume the courts violated Eddings’s constitutional
mandates.”); see also Lopez, 491 F.3d at 1036–38 (denying
relief under Eddings where “the sentencing court did not
prevent [the petitioner] from presenting any evidence in
mitigation, nor did it affirmatively indicate that there was any
evidence it would not consider”).




 13
    The dissent argues that the Arizona Supreme Court’s conclusion that
the sentencing judge “gave full consideration to” McKinney’s PTSD
evidence, see McKinney, 917 P.2d at 1234, was based on an unreasonable
determination of fact under § 2254(d)(2). The dissent also argues that the
sentencing judge never accepted Dr. McMahon’s PTSD diagnosis, nor
made a finding of PTSD, which tainted the Arizona Supreme Court’s
review.

     As demonstrated above, the record contradicts both arguments. As
the dissent acknowledges, “the sentencing judge did quite a bit of talking
about PTSD . . . .” This discussion demonstrates the sentencing judge’s
deliberative process—his weighing of the evidence. There would have
been little need to do so much “talking” about the PTSD diagnosis if he
planned to exclude it as a matter of law. Further, the record demonstrates
that the sentencing judge assumed that the PTSD diagnosis was true.
Nothing required the sentencing judge to make a particular finding that the
diagnosis was accurate, because the record shows that he was able to
adequately weigh the evidence by assuming that it was true.
30                  MCKINNEY V. RYAN

     2. The Arizona Supreme Court did not apply an
        unconstitutional nexus test to McKinney’s
        mitigating evidence.

     As we have previously recognized, state courts are free to
consider a nexus to determine the weight to give mitigation
evidence. See Schad, 671 F.3d at 723 (“The United States
Supreme Court has said that the use of the nexus test in this
manner is not unconstitutional because state courts are free to
assess the weight to be given to particular mitigating
evidence.”). For example, we upheld the Arizona Supreme
Court’s exercise of this discretion in Towery v. Ryan,
673 F.3d 933, 944–45 (9th Cir. 2012), cert. denied,
132 S. Ct. 1738 (2012). In Towery, we reviewed the Arizona
Supreme Court’s rulings that (1) the sentencing court “must
consider the defendant’s upbringing if proffered but is not
required to give it significant mitigating weight” and (2) the
question of “[h]ow much weight should be given proffered
mitigating factors is a matter within the sound discretion of
the sentencing judge.” Id. at 938. We concluded that these
were “correct statements of the law.” Id. at 944. We also
affirmed the ruling that “a difficult family background is not
always entitled to great weight as a mitigating circumstance,”
and “where the defendant fails to connect his family
background to his criminal conduct, a trial judge could give
it little or no weight or value.” Id. at 944–45.

    Here, like in Towery, the Arizona Supreme Court
concluded that “a difficult family background, including
childhood abuse, does not necessarily have substantial
mitigating weight absent a showing that it significantly
affected or impacted the defendant’s ability to perceive,
comprehend, or control his actions.” McKinney, 917 P.2d at
1234. While the Arizona Supreme Court ultimately decided
                        MCKINNEY V. RYAN                                31

that the cumulative weight of the mitigating evidence did not
call for leniency, the court based this conclusion on the
weight assigned to mitigating factors. Nothing in the record
suggests that the Arizona Supreme Court outrightly rejected,
or otherwise did not fully consider, those factors due to a lack
of nexus to the crime. Accordingly, the Arizona Supreme
Court did not apply an unconstitutional nexus test when it
affirmed the sentencing court’s exercise of discretion over the
weight to assign the evidence that it considered.

    We reject the dissent’s argument that other Arizona
Supreme Court cases applying an unconstitutional nexus test
demonstrate that the Arizona Supreme Court “followed suit”
in this case. We have formerly rejected the argument that
“the Arizona Supreme Court’s historical use of an
unconstitutional causal nexus test” creates a presumption of
error. See Poyson, 711 F.3d at 1099. Any such presumption
would be especially inappropriate here, because the Arizona
Supreme Court’s decision makes clear that it did not apply an
unconstitutional nexus test.14

    McKinney makes much of the Arizona Supreme Court’s
citation to State v. Ross, 886 P.2d 1354 (Ariz. 1994). In Ross,
the Arizona Supreme Court stated “[a] difficult family
background is not a relevant mitigating circumstance unless
‘a defendant can show that something in that background had
an effect or impact on his behavior that was beyond the
defendant’s control.’” Id. at 1363 (emphasis added) (quoting


 14
    We also reject the dissent’s view that the sentencing court (as distinct
from the Arizona Supreme Court) impermissibly applied a causal nexus
test. As discussed above, the record makes clear that the sentencing court
did not exclude any evidence due to a lack of causal nexus to the crime,
or for any other reason.
32                    MCKINNEY V. RYAN

State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989)). McKinney
argues that the Arizona Supreme Court’s citation to Ross
demonstrates that it held the mitigation evidence irrelevant
and unconstitutionally excluded it for its lack of causal nexus
to the crime.

    We reject this argument, just as we rejected a similar
argument in Towery, where the Arizona Supreme Court
supported its decision with a citation to Wallace. See Towery,
673 F.3d at 946. While the Towery court deemed Wallace
(and, by extension, Ross) “constitutionally suspect,” this does
not end the analysis. See id. We must review the record in
McKinney’s case to determine whether the sentencing court
and the Arizona Supreme Court actually applied the
unconstitutional test. See id. For the reasons stated above,
we conclude that the Arizona Supreme Court did not apply an
unconstitutional nexus test, notwithstanding the citation to
Ross.15 Thus, McKinney has failed to establish that the
Arizona Supreme Court’s decision to uphold the trial court
was contrary to, or an unreasonable application of,
Lockett/Eddings.

                         CONCLUSION

    The district court properly denied relief on McKinney’s
“courtroom layout” and Lockett/Eddings claims, because the
Arizona Supreme Court’s decision denying relief was not
contrary to, nor an unreasonable application of, clearly
established federal law or based on an unreasonable


  15
    At least one Arizona Supreme Court case decided after McKinney
recognizes that McKinney discussed “weighing” the mitigating evidence,
notwithstanding McKinney’s citation to Ross. See State v. Greene,
967 P.2d 106, 118 (Ariz. 1998) (en banc).
                        MCKINNEY V. RYAN                                33

determination of the facts. The district court also properly
denied relief on McKinney’s remaining dual juries and
“shackling”claims, because the claims are procedurally
defaulted.

       AFFIRMED.16



WARDLAW, Circuit Judge, 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 claim1 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


    16
       On December 3, 2012, McKinney filed a “Motion to File Late
Supplemental Authorities.” While we see no reason that these authorities
could not have been presented in a 28(j) letter, we nevertheless “grant” the
motion. However, none of the authorities referenced provide any basis for
relief under AEDPA.
   1
     The panel majority agrees that we should address McKinney’s
uncertified Lockett/Eddings claim because the resolution of this issue is
“debatable amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S.
322, 330 (2003).
34                  MCKINNEY V. RYAN

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(d)(2). McKinney has demonstrated that he
is entitled to habeas relief regardless of whether Eddings
violations are deemed structural error or are reviewed for
harmless error. I would therefore reverse the district court’s
denial of all relief and remand with instructions to grant
McKinney’s habeas petition based on this claim.

                               I.

    It was well established in 1993, when McKinney was
sentenced, that “[j]ust as the State may not by statute preclude
the sentencer from considering any mitigating factor, neither
may the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence.” Eddings v. Oklahoma,
455 U.S. 104, 113–14 (1982). The Supreme Court has
clarified that the Eighth and Fourteenth Amendments
specifically require the sentencer to fully consider all
mitigating evidence, regardless of the lack of a causal
connection between the evidence and the defendant’s crime
of conviction:

       There is no disputing that this Court’s
       decision in Eddings requires that in capital
       cases the sentencer . . . not be precluded from
       considering, as a mitigating factor, any aspect
       of a defendant’s character or record and any
       of the circumstances of the offense that the
                    MCKINNEY V. RYAN                       35

       defendant proffers as a basis for a sentence
       less than death. Equally clear is the corollary
       rule that the sentencer may not refuse to
       consider or be precluded from considering any
       relevant mitigating evidence. These rules are
       now well established . . . .

Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (internal
quotation marks and citations omitted) (emphasis added); see
also Eddings, 455 U.S. at 110. In Smith v. Texas, 543 U.S. 37
(2004), the Court explained that such causal “nexus
requirements” are “a test we never countenanced and now
have unequivocally rejected.” Id. at 45 (citing Eddings,
455 U.S. at 114); see also Smith, 543 U.S. at 45 (holding that
it was “plain under [Supreme Court] precedents” that
evidence lacking a “nexus” to the crime of conviction “was
relevant for mitigation purposes”).         Accordingly, the
Constitution forbids sentencers in capital cases from refusing
to consider any mitigating evidence on the basis that the
evidence lacks a nexus to a defendant’s crime of conviction.

    It was also well established when McKinney was
sentenced that Eddings and its progeny require that the
sentencer give “independent mitigating weight” to all relevant
mitigating evidence. See Eddings, 455 U.S. at 110. This has
been a cornerstone of the Supreme Court’s jurisprudence
since Lockett was decided in 1978:

       [A] statute that prevents the sentencer in all
       capital cases from giving independent
       mitigating weight to aspects of the defendant’s
       character and record and to circumstances of
       the offense proffered in mitigation creates the
       risk that the death penalty will be imposed in
36                  MCKINNEY V. RYAN

       spite of factors which may call for a less
       severe penalty. When the choice is between
       life and death, that risk is unacceptable and
       incompatible with the commands of the
       Eighth and Fourteenth Amendments.

Lockett v. Ohio, 438 U.S. 586, 605 (1978) (emphasis added).
The Court has recognized that the sentencer must perform an
individualized analysis of each piece of relevant mitigating
evidence: “the sentencer must be free to give ‘independent
mitigating weight to aspects of the defendant’s character and
record and to circumstances of the offense proffered in
mitigation . . . .’” Eddings, 455 U.S. at 110 (quoting Lockett,
438 U.S. at 605). Supreme Court precedent thus requires the
sentencer to give adequate and independent consideration to
all relevant evidence that a defendant proffers in mitigation
of his crimes.

    Finally, the rule announced in Eddings requires that the
sentencer actually consider each independent piece of
relevant mitigating evidence. See Eddings, 455 U.S. at 113.
Lockett and Eddings both emphasize the significance of “the
type of individualized consideration of mitigating factors”
required by the Eighth and Fourteenth Amendments. See
Eddings, 455 U.S. at 105; Lockett, 438 U.S. at 606.
Certainly, the appropriate degree of care or caution that must
be accorded to each independent piece of mitigating evidence
will vary. See Webster’s Third New International Dictionary
483 (1986) (defining “consider” as “to reflect on: think about
with a degree of care or caution”). However, it is clear that
whether a sentencer “said he did” enough to comply with the
Constitution is irrelevant for constitutional purposes; the true
test is whether the sentencer actually exercised “the type of
                    MCKINNEY V. RYAN                       37

individualized consideration” required by the Constitution.
Eddings, 455 U.S. at 105.

                             II.

    McKinney argued at sentencing that he should not be
sentenced to death due to his difficult childhood, alcohol
addiction, good behavior while incarcerated, and residual
doubt concerning his role in the offenses. In addition,
McKinney specifically raised his PTSD diagnosis as a
mitigating factor independent of the underlying childhood
trauma he suffered and as a factor to be given separate weight
at sentencing.

     As support for imposition of a noncapital sentence,
McKinney presented evidence at sentencing as to what even
the sentencing judge found to be an “extraordinary” and
“traumatic childhood,” which would be “beyond the
comprehension and understanding of most people . . . .”
Sentencing Hr’g Tr. at 26, July 23, 1993. McKinney’s sister,
Diana McKinney, and aunt, Susan Sestate, both testified at
length concerning McKinney’s horrific childhood. They
testified that McKinney grew up in extreme poverty, living in
filth, lacking adequate clothing, and suffering constant
physical and emotional abuse, largely at the hands of his
stepmother. He and his three siblings shared a single
bedroom and were expected to do all of the cleaning and
cooking in the home. McKinney consistently arrived at
school poorly dressed, dirty, and covered in welts and bruises
from beatings he received at home. Unsurprisingly,
McKinney ran away repeatedly, appearing at the homes of
relatives and friends bearing signs that he had been beaten.
The sentencing judge found this testimony credible,
determining that as a child McKinney was “abused, beaten,
38                  MCKINNEY V. RYAN

and deprived of the necessary care, clothing, and parental
love and affection.”

    In addition to enduring a horrific childhood, as an adult
McKinney suffered serious psychological problems. At
sentencing, Dr. Mickey McMahon, a clinical psychologist,
testified to his opinion that McKinney suffered from PTSD,
writing in his expert report that McKinney “underwent a
massive amount of neglect and abuse during his
developmental years which in my opinion was sufficient to
create a case of Post-Traumatic Stress Disorder.” Dr.
McMahon also described numerous ways in which this
disorder could have affected McKinney and impaired his
ability to control his behavior on the nights of the murders.
Specifically, Dr. McMahon testified that McKinney’s PTSD
may have caused him to have a “reflexive” and “emotional”
response to any confrontation during the burglary, which
could have led to his having “diminished capacity” at the time
of the murders. Dr. McMahon concluded by testifying that he
had no doubt that McKinney suffered from PTSD. In
addition to Dr. McMahon’s testimony that McKinney
suffered from PTSD, another doctor testified on McKinney’s
behalf concerning his below-average intelligence.

    Despite this evidence, the sentencing judge refused to
give McKinney’s PTSD diagnosis any weight in mitigation
because McKinney failed to show that the PTSD had any
direct effect on his crimes. In fact, the sentencing judge
declined even to make a finding as to whether McKinney
actually suffered from PTSD because he concluded that this
was irrelevant to his sentencing decision. The sentencing
judge initially discussed McKinney’s PTSD in two sentences,
which, although nearly incoherent, express the view that the
expert’s PTSD diagnosis was, at a minimum, suspect:
                    MCKINNEY V. RYAN                       39

       However, in viewing Exhibit 3, which defense
       introduced and Dr. McMahon acknowledged
       either reviewing or relying upon, it appeared
       that in reviewing that exhibit that even those
       experts who agree that Post-traumatic Stress
       Syndrome can result from childhood abuse
       and be a lingering problem of individuals who
       have been abused, beaten and deprived of the
       necessary care, clothing, and parental love and
       affection that Mr. McKinney was – obviously,
       through the testimony, was deprived of in this
       case – nevertheless have concluded as Dr.
       McMahon indicated, there was a cognitive
       impairment of the defendant. There was no
       evidence presented of any organic brain
       damage or disease of the defendant; that in
       Exhibit 3, it appears at least in the sample of
       individuals in that case and comparing those
       individuals with cognitive impairment, with
       abuse, where there was not psychotic episodes
       or neurological damage to a defendant, where
       at least two or three of those things were
       present, that if only cognitive impairment and
       abuse were present, if there was nothing
       significantly significant in the violent offenses
       expected to be committed by those
       individuals, the experts found that there was
       no significant difference between an
       individual with cognitive impairment who
       suffered with child abuse with no history of
       cognitive abuse or those who had only been
       abused or only had a cognitive deficit.

Sentencing Hr’g Tr. at 27–28, July 23, 1993.
40                   MCKINNEY V. RYAN

    Exhibit 3, to which the sentencing judge refers, is a paper
prepared in 1989 by researchers at the New York University
School of Medicine, Department of Psychiatry, which
attempts to predict which violent delinquents will go on to
commit adult aggressive offenses. Dorothy Otnow Lewis,
M.D. et al., Toward a Theory of the Genesis of Violence: A
Follow-up Study of Delinquents, 28 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 431 (1989). The paper concludes
that “a constellation of interacting clinical and environmental
variables is a far better predictor of future violent behavior
than is early aggression alone.” Id. at 436. In this passage of
the sentencing transcript, the sentencing judge is stating that
because there was no evidence that McKinney suffered
certain of the clinical variables identified in the paper, i.e. a
psychotic episode or neurological damage, there was no
correlation between his diagnosis of PTSD and the
commission of his crimes. And because the sentencing judge
so concluded, he unconstitutionally screened out PTSD as a
matter of law, before it could be weighed along with the other
mitigating and aggravating factors. Of course, doing so was
nonsensical as well, because the study only purports to
predict which abused adolescents will become violent adults
who commit murder. At this point, McKinney had been
convicted of two murders, so he had already committed what
the paper describes as “the most serious of crimes.” Id. at
435. The issue for the sentencing judge was not whether
McKinney’s crimes were predictable; it was whether the fact
that McKinney suffered from PTSD reduced his culpability
for the murders—an issue the judge declined to address
because his reading of the study caused him to conclude that
the PTSD diagnosis was not causally related to McKinney’s
crimes.
                   MCKINNEY V. RYAN                      41

    Having done so, the sentencing judge explicitly declined
to make a finding as to whether McKinney actually suffered
from PTSD, because he viewed this as irrelevant given the
lack of a nexus between the PTSD and McKinney’s crimes:

       But, I think more importantly than that,
       certainly not trying to dispute him as an
       expert on what all that meant, it appeared to
       me that Dr. McMahon did not at any time
       suggest in his testimony nor did I find any
       credible evidence to suggest that, even if the
       diagnoses of Post-traumatic Stress Syndrome
       were accurate in Mr. McKinney’s case, that in
       any way significantly impaired Mr.
       McKinney’s conduct.

Sentencing Hr’g Tr. at 28 (emphasis added). If this
articulation of an impermissible nexus test were not clear
enough, the sentencing judge next confirmed that he excluded
the PTSD evidence from his mitigation analysis because there
was no evidence linking the PTSD to McKinney’s criminal
conduct:

       [I]t appeared to me that based upon all these
       circumstances that there simply was no
       substantial reason to believe that even if the
       trauma that Mr. McKinney had suffered in
       childhood had contributed to an appropriate
       diagnosis of Post-traumatic Stress Syndrome
       that it in any way affected his conduct in this
       case.

Id. at 29. The sentencing judge reaffirmed for a third time
that he excluded the PTSD diagnosis from his consideration
42                  MCKINNEY V. RYAN

of whether to sentence McKinney to life or death because he
did not believe this evidence had a causal relationship with
McKinney’s crimes under Arizona’s death penalty statute:

       I’ve determined that even though there may
       be some evidence by Dr. McMahon that
       would demonstrate under [Ariz. Rev. Stat.
       Ann. § 13–751](G)(1) a capacity by the
       defendant to appreciate the wrongfulness of
       conduct, it was not significantly impaired,
       either by the use of drugs, alcohol or the
       possibility of a diagnosis of Post-traumatic
       Stress Syndrome.

Id. at 30. There can be no doubt that the sentencing judge
disposed of McKinney’s PTSD diagnosis by concluding that
its validity was irrelevant because the lack of a nexus between
the PTSD and McKinney’s criminal conduct made it
nonmitigating as a matter of law. As discussed more fully
below, McKinney presented this evidence for two reasons: to
suggest that he had diminished capacity on the night of the
murders and to demonstrate that he was less culpable for his
crimes than someone who did not suffer from PTSD. The
sentencing judge addressed the first argument, finding that
McKinney’s capacity was not diminished. However, he
failed to address whether the PTSD diagnosis had any impact
on McKinney’s culpability for his crimes. This serious
Eddings/Lockett error violated the Eighth and Fourteenth
Amendments.
                        MCKINNEY V. RYAN                               43

                                   III.

     On direct appeal, the Arizona Supreme Court2 agreed with
the sentencing judge that the absence of a causal relationship
between McKinney’s PTSD diagnosis and his crimes
rendered this evidence nonmitigating as a matter of law.
Thus, the Arizona Supreme Court’s decision was “contrary to
. . . clearly established Federal law, as determined by the
Supreme Court of the United States.”               28 U.S.C.
§ 2254(d)(1). In addition, the Arizona Supreme Court failed
to accurately describe or analyze the sentencing judge’s
rationale in sentencing McKinney. As a result, the Arizona
Supreme Court’s decision also was “based on an
unreasonable determination of the facts” under 28 U.S.C.
§ 2254(d)(2). These legal and factual errors satisfy
§ 2254(d), entitling McKinney to habeas relief under
AEDPA.

    First, the Arizona Supreme Court’s opinion repeats the
sentencing judge’s unconstitutional treatment of McKinney’s
PTSD diagnosis:

         [T]he record shows that the judge gave full
         consideration to McKinney’s childhood and
         the expert testimony regarding the effects of
         that childhood, specifically the diagnosis of
         post-traumatic stress disorder (PTSD).


  2
   As Judge Thomas makes eminently clear in his dissent in Poyson v.
Ryan, 711 F.3d 1087 (9th Cir. 2013), “At the time it decided this case, the
Arizona Supreme Court applied a causal nexus test similar to the one the
U.S. Supreme Court held unconstitutional in Tennard [v. Dretke, 542 U.S.
274 (2004)].” Poyson, 711 F.3d at 1105 (Thomas, J., dissenting) (listing
Arizona cases).
44                      MCKINNEY V. RYAN

         Assuming the diagnoses were correct, the
         judge found that none of the experts testified
         to, and none of the evidence showed, that such
         conditions in any way significantly impaired
         McKinney’s ability to conform his conduct to
         the law.

State v. McKinney, 917 P.2d 1214, 1234 (Ariz. 1996)
(emphasis added). In doing so, the court agreed with the
sentencing judge that McKinney’s PTSD evidence was
nonmitigating as a matter of law because McKinney failed to
show a relationship between the diagnosis and his crimes. As
discussed above, this was contrary to then-clearly established
constitutional law and therefore meets the requirements of
§ 2254(d)(1).3

    Second, the Arizona Supreme Court’s decision was based
on two independent “unreasonable determination[s] of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Contrary to the court’s


  3
     In concluding that the “Arizona Supreme Court did not apply an
unconstitutional nexus test to McKinney’s mitigating evidence,” the
majority fails to distinguish between Arizona’s unconstitutional treatment
of McKinney’s PTSD diagnosis and its permissible treatment of other
mitigation evidence. However, we have never held that a state’s
permissible treatment of some mitigation evidence can somehow “cure”
the unconstitutional treatment of other mitigating evidence. Nor could we
have, as Eddings and Lockett make clear that the Eighth and Fourteenth
Amendments require that all relevant evidence must be given
“independent mitigating weight.” Eddings, 455 U.S. at 110 (emphasis
added). Therefore, it is irrelevant for constitutional purposes that the
sentencing judge adequately considered some of McKinney’s mitigation
evidence; that he failed to adequately consider independently the PTSD
diagnosis is sufficient to establish that McKinney is entitled to habeas
relief.
                     MCKINNEY V. RYAN                         45

bald statements, the sentencing judge never “gave full
consideration to” McKinney’s PTSD diagnosis as a possible
mitigating factor favoring a life sentence over death.
McKinney, 917 P.2d at 1234. In fact, while the sentencing
judge did quite a bit of talking about PTSD, much of this
discussion related to the predictive analysis in Exhibit 3 as his
reason for screening out the PTSD diagnosis as a mitigating
factor, and refusing to weigh it with other relevant factors.
Certainly, nothing in the record indicates that the sentencing
judge exercised “the type of individualized consideration of
mitigating factors . . . required by the Eighth and Fourteenth
Amendments.” Eddings, 455 U.S. at 105 (quoting Lockett,
438 U.S. at 606). Instead, the sentencing judge only
“considered” McKinney’s PTSD evidence in the sense that he
determined that there was no causal relationship between it
and McKinney’s crimes. As discussed above, this is
insufficient under Eddings and Lockett. Thus, the Arizona
Supreme Court’s decision was based on the unreasonable
factual determination that the sentencing judge fully
considered McKinney’s PTSD evidence as a mitigating
factor. This factual error satisfies § 2254(d)(2).

    The Arizona Supreme Court’s second unreasonable
factual determination concerns the sentencing judge’s refusal
to accept McKinney’s PTSD diagnosis for sentencing
purposes. While the sentencing judge expressly declined to
determine whether McKinney suffered from PTSD on the
basis that the question was irrelevant to his sentencing
determination, the Arizona Supreme Court incorrectly stated
that the sentencing judge “assum[ed] the diagnoses were
correct” when sentencing McKinney. McKinney, 917 P.2d at
1234. However, as set forth above, the record contradicts this
statement. In fact, the sentencing judge specifically declined
to make a finding on this point on the grounds that “even if
46                  MCKINNEY V. RYAN

the diagnoses of [PTSD] were accurate in Mr. McKinney’s
case, [I do not believe that it] in any way significantly
impaired Mr. McKinney’s conduct.” Sentencing Hr’g Tr. at
28, July 23, 1993; see also id. at 30 (“[E]ven though there
may be some evidence [demonstrating] a capacity by the
defendant to appreciate the wrongfulness of conduct [sic], it
was not significantly impaired [by] the possibility of a
diagnosis of Post-traumatic Stress Syndrome.”(emphasis
added)). Thus, the sentencing judge never accepted the
diagnosis as correct. Instead, he did not believe it was
necessary to determine whether McKinney suffered from
PTSD because the absence of a causal relationship between
the PTSD and McKinney’s crimes rendered this evidence
nonmitigating as a matter of law. Given this, the Arizona
Supreme Court’s decision was based on two “unreasonable
determination[s] of the facts in light of the evidence presented
in the State court proceeding.” § 2254(d)(2).

    While unconstitutional, the Arizona courts’ inconsistent
treatment of McKinney’s childhood and PTSD mitigation
evidence is explicable as consistent with then-operative
Arizona state law. Section 13-751 of the Arizona Revised
Statutes sets forth the factors which permissibly may be
considered as mitigating under state law. Ariz. Rev. Stat.
§ 13-751(G)(1). At the time, § 13-751(G)(1) permitted
sentencers to give mitigating effect to mental impairments,
such as PTSD, only when “[t]he defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law was significantly
impaired but not so impaired as to constitute a defense to
prosecution.” Given the language of this statute, it is not
surprising that both Arizona courts’ decisions track that
language when discussing McKinney’s PTSD evidence. Just
compare the sentencing judge’s statement that “even if the
                    MCKINNEY V. RYAN                       47

diagnoses of Post-traumatic Stress Syndrome were accurate
in Mr. McKinney’s case, [I do not believe] that in any way
significantly impaired Mr. McKinney’s conduct,” and the
Arizona Supreme Court’s statement that “none of the
evidence showed . . . that such conditions in any way
significantly impaired McKinney’s ability to conform his
conduct to the law,” McKinney, 917 P.2d at 1234, with the
language of § 13-751(G)(1). Further, as discussed above, the
sentencing judge went so far as to make his reliance on § 13-
751(G)(1) explicit, stating that McKinney’s PTSD evidence
was irrelevant because “even though there may be some
evidence . . . that would demonstrate under (G)(1) a capacity
by the defendant to appreciate the wrongfulness of conduct,
it was not significantly impaired [by] the possibility of a
diagnosis of Post-traumatic Stress Syndrome.” Sentencing
Hr’g Tr. at 30, July 23, 1993.

    It was not until 2006, over a decade after McKinney was
sentenced, that the Arizona Supreme Court acknowledged
that the United States Constitution required it to construe
§ 13-751(G)(1)’s nexus requirement as useful to only the
determination of how much weight to give mitigating
evidence—as opposed to excluding it from consideration.
See Schad v. Ryan, 671 F.3d 708, 723 (9th Cir. 2011) (citing
State v. Newell, 132 P.3d 833, 849 (Ariz. 2006)). However,
prior to 2006, Arizona state courts routinely imposed an
unconstitutional nexus requirement on mental impairments.
See, e.g., Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010)
(finding a constitutional violation where Arizona courts
refused to consider drug use as mitigating due to lack of a
nexus); Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008)
(per curiam) (finding a constitutional violation where Arizona
courts refused to consider PTSD evidence as mitigating due
to lack of a nexus). We can infer from the Arizona state
48                  MCKINNEY V. RYAN

courts’ pre-2006 treatment of mental impairment mitigation
evidence in capital sentencings that the Arizona state courts
here simply followed suit. However, regardless of the
explanation for the Arizona Supreme Court’s various factual
and legal errors, these constitutional violations establish that
McKinney is entitled to habeas relief under AEDPA. See
28 U.S.C. § 2254(d).

                              IV.

    There is no question that McKinney’s PTSD evidence is
“relevant mitigating evidence” for constitutional purposes.
Eddings, 455 U.S. at 114; see also Tennard v. Dretke,
542 U.S. 274, 284 (2004) (“[T]he meaning of relevance is no
different in the context of mitigating evidence introduced in
a capital sentencing proceeding than in any other context, and
thus the general evidentiary standard—any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence—applies.” (internal
quotation marks omitted)). The Supreme Court has
confirmed that disorders like PTSD are relevant for
mitigation purposes:

        [E]vidence about the defendant’s background
        and character is relevant because of the belief,
        long held by this society, that defendants who
        commit criminal acts that are attributable to a
        disadvantaged background, or to emotional
        and mental problems, may be less culpable
        than defendants who have no such excuse.
                    MCKINNEY V. RYAN                        49

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (internal
citations and quotation marks omitted) abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002).

    We have also specifically held that PTSD evidence is
relevant mitigation evidence. See Styers, 547 F.3d at 1035.
In Styers, we granted a habeas petition when the Arizona
courts refused to consider PTSD mitigation evidence under
circumstances virtually identical to those presented here.
Styers, convicted of murder, had produced evidence at
sentencing that he suffered from PTSD. Id. The Styers
sentencing judge refused to consider the evidence on the basis
that “two doctors who examined defendant could not connect
defendant’s condition to his behavior at the time of the
conspiracy and the murder.” Id. (citing State v. Styers, 865
P.2d 765 (Ariz. 1993)). As in the present appeal, the Arizona
Supreme Court in Styers ignored this language, instead
asserting, like here, that the sentencing judge had “considered
all of the proffered mitigation.” Id. (citing Styers, 865 P.2d
at 778). However, unlike the majority here, in Styers, we
refused to accept this conclusory statement as dispositive. Id.
Instead, we recognized that the Arizona courts had failed to
weigh Styers’s PTSD as evidence in mitigation on the basis
that the experts did not connect the PTSD to his behavior at
the time of the murder. Id. We held that the Arizona court
had applied an unconstitutional “nexus test to conclude that
Styers’s post traumatic stress disorder did not qualify as
mitigating evidence,” and granted Styers’s petition on the
ground that this was “directly contrary to the constitutional
requirement that all relevant mitigating evidence be
considered by the sentencing body.” Id.

    Here, as in Styers, the State of Arizona has sentenced an
individual to death without complying with the constitutional
50                  MCKINNEY V. RYAN

requirement that the sentencer adequately consider “any
relevant mitigating evidence.” Eddings, 455 U.S. at 114. In
both cases, the Arizona courts refused to consider the
mitigating impact of PTSD evidence because the defendant
failed to establish a causal relationship between the disorder
and his criminal conduct. However, unlike the majority here,
in Styers we correctly recognized that this legal error was
contrary to clearly established constitutional law, and granted
habeas relief accordingly. I would grant McKinney relief on
the Eddings/Lockett claim. It is abundantly clear on this
record that McKinney is entitled to a new sentencing
proceeding in which the sentencer actually considers his
PTSD diagnosis as a mitigating factor as required by the
Constitution.

                              V.

    Whether McKinney must also demonstrate actual
prejudice for the writ to issue is an unsettled question in the
Ninth Circuit. Historically, we have treated Eddings errors as
structural, granting the writ without inquiring as to the
likelihood of a different sentencing result. See, e.g.,
Williams, 623 F.3d 1258; Styers, 547 F.3d 1026; see also
Stokley v. Ryan, 705 F.3d 401, 405 (9th Cir. 2012) (Paez, J.,
dissenting). However, recently a panel of our Court refused
to grant the writ despite assuming that an Eddings error had
occurred at the state level. Stokley, 705 F.3d at 405. Instead,
the panel examined whether the petitioner could demonstrate
actual prejudice under Brecht v. Abrahamson, 507 U.S. 619
(1993). Stokley, 705 F.3d at 403–05. Concluding that the
petitioner could not do so, the panel refused to grant the writ.
Id. Despite this, the Stokley panel majority stopped well short
of overruling our precedent, which, in any event, it was
without the power to do. See United States v. Parker,
                    MCKINNEY V. RYAN                        51

651 F.3d 1180, 1184 (9th Cir. 2011) (per curiam) (“Only the
en banc court can overturn a prior panel precedent.”); see also
Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003)
(holding that a three-judge panel “may reexamine normally
controlling circuit precedent” only “where the reasoning or
theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority”).
As a result, Stokley has created an intra-circuit split
concerning whether Eddings errors are structural or are
reviewed for actual prejudice. Absent an en banc call to
correct this issue, I would maintain the uniformity of our
prior precedents by remaining faithful to the numerous cases
that have treated Eddings/Lockett errors as structural, and not
following the one outlier decision that failed to do so. See,
e.g., Williams, 623 F.3d 1258.

    However, even assuming that Eddings/Lockett violations
are reviewed for “actual prejudice,” I would conclude that the
Eddings/Lockett error in this case had a “substantial and
injurious effect or influence” upon the sentencer’s decision.
Brecht, 507 U.S. at 627. The Brecht standard examines
whether the constitutional error substantially influenced the
outcome of a case:

       [I]f one cannot say, with fair assurance, after
       pondering all that happened without stripping
       the erroneous action from the whole, that the
       judgment was not substantially swayed by the
       error, it is impossible to conclude that
       substantial rights were not affected. The
       inquiry cannot be merely whether there was
       enough to support the result, apart from the
       phase affected by the error. It is rather, even
52                  MCKINNEY V. RYAN

       so, whether the error itself had substantial
       influence.

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
“Where the record is so evenly balanced that a judge ‘feels
himself in virtual equipoise as to the harmlessness of the
error’ and has ‘grave doubt about whether an error affected a
jury [substantially and injuriously], the judge must treat the
error as if it did so.’” Id. (quoting O'Neal v. McAninch,
513 U.S. 432, 435 (1995)) (alteration in original) (internal
quotations omitted).

    McKinney has argued that he is entitled to a new
sentencing proceeding because the sentencing judge’s failure
to appropriately consider his PTSD diagnosis resulted in a
death sentence when a life sentence was called for based on
his lessened culpability. Here, McKinney’s sentence was
“substantially swayed” by the sentencing judge’s error.
Merolillo, 663 F.3d at 454. A sentencer who appropriately
considered all the relevant mitigating evidence as required by
Lockett could easily have concluded on the basis of Dr.
McMahon’s testimony that McKinney’s PTSD was a
substantial mitigating factor. Instead, the sentencing judge’s
unconstitutional refusal to consider the effect of McKinney’s
PTSD on his culpability for his crimes “creates the risk that
the death penalty will be imposed in spite of factors which
may call for a less severe penalty.” Lockett, 438 U.S. at 605.
Given the significant non-PTSD mitigation evidence that
McKinney presented at sentencing, it cannot be said “with
fair assurance” that a sentencer who also appropriately
considered the PTSD evidence would have sentenced
McKinney to death. Merolillo, 663 F.3d at 454. I would
therefore reverse the district court and remand with
                   MCKINNEY V. RYAN                    53

instructions to grant McKinney’s habeas petition, and to
require that the state court hold a new sentencing hearing
within ninety days.
