               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD HARLEY GREENWAY,                No. 14-15309
             Petitioner-Appellant,
                                          D.C. No.
                v.                     4:98-cv-00025-
                                            RCC
CHARLES L. RYAN, Director of
Arizona Department of Corrections,
              Respondent-Appellee.        OPINION


     Appeal from the United States District Court
              for the District of Arizona
      Raner C. Collins, Chief Judge, Presiding

         Argued and Submitted June 21, 2017
              San Francisco, California

                Filed August 8, 2017

  Before: Mary M. Schroeder, Johnnie B. Rawlinson,
          and Carlos T. Bea, Circuit Judges.

                 Per Curiam Opinion
2                       GREENWAY V. RYAN

                            SUMMARY*


                Habeas Corpus / Death Penalty

     The panel affirmed the district court in an Arizona state
prisoner’s appeal arising from his habeas corpus petition
challenging his 1989 conviction and death sentence for the
killing of a mother and daughter.

    After considering supplemental briefing regarding the
impact on this case of McKinney v. Ryan, 813 F.3d 798 (9th
Cir. 2015) (en banc), the panel held that neither the Arizona
Supreme Court nor the trial court applied an impermissible
causal-nexus test to exclude mitigating evidence.


                             COUNSEL

Therese M. Day (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Laura P. Chiasson (argued), Assistant Attorney General;
Jeffrey A. Zick and Lacey Stover Gard, Chief Counsel; Mark
Brnovich, Attorney General; Office of the Attorney General,
Tucson, Arizona; for Respondent-Appellee.




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

                          OPINION

PER CURIAM:

     We continue to consider issues raised in Richard
Greenway’s first habeas petition challenging his 1989
conviction and death sentence for the brutal execution-style
killing of a mother and daughter in 1988. In our first opinion,
we affirmed the denial of relief on many claims, but
remanded others. See generally Greenway v. Schriro,
653 F.3d 790 (9th Cir. 2011).

    Included among the claims we denied was the contention
that the state trial court and the state supreme court, by failing
to consider all mitigating circumstances, had violated the
United States Supreme Court’s teachings in Lockett v. Ohio,
438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104
(1982). Greenway argued that the Arizona Supreme Court
limited consideration of mitigating factors to those causally
linked to the commission of the crime. Relying on our
court’s prior decision in Schad v. Ryan, 606 F.3d 1022 (9th
Cir. 2010), we rejected the claim on the ground that the
Arizona Supreme Court’s opinion contained no indication
that such a test had been applied. Greenway, 653 F.3d at
807–08 (citing State v. Greenway, 170 Ariz. 155, 168–71
(1991) (in banc)).

    While Greenway’s other claims remained under
consideration in the federal courts, our court, in an en banc
decision, overruled Schad and any presumption it may have
suggested that the Arizona Supreme Court had followed the
United States Supreme Court’s decisions in Lockett and
Eddings and had not applied a causal-nexus test. McKinney
v. Ryan, 813 F.3d 798, 818–19 (9th Cir. 2015) (en banc).
4                    GREENWAY V. RYAN

Rather, McKinney held that no “clear indication” of the
application of the causal-nexus test was required because the
Arizona courts had “consistently,” during the period between
1989 and 2005, applied the wrong test. Id. at 815–26 (“The
‘clear indication’ rule . . . is an inappropriate and unnecessary
gloss on the deference already required under [28 U.S.C.]
§ 2254(d).”). In other words, if there is to be a presumption,
it is that the Arizona Supreme Court violated the dictates of
Lockett and Eddings during that period.

    We stayed proceedings in this appeal pending
McKinney’s becoming final. When the Supreme Court
denied certiorari, Ryan v. McKinney, 137 S. Ct. 39 (2016), we
asked for supplemental briefing on McKinney’s impact on
this case.

    The parties appear to be in fundamental agreement that
McKinney requires us to reexamine the state trial and
appellate courts’ decisions to determine whether or not all
mitigating factors were considered. The parties disagree, of
course, on what the state courts did in petitioner’s case, with
Greenway contending a causal-nexus test was used and the
state contending it was not.

     First, however, we consider Greenway’s threshhold
contention that it is not for us to determine what the state
courts did, because our en banc court in McKinney has
already ruled they applied the wrong test. We said in
McKinney that the Arizona courts had “consistently” applied
the causal-nexus test. 813 F.3d at 803. We did not say,
however, that Arizona had always applied it. Notably, in
listing the cases in which the causal-nexus test was
erroneously applied by the state courts, the McKinney
majority opinion did not include Greenway’s case.
                    GREENWAY V. RYAN                        5

McKinney, Id. at 815–16, 824–26. And in McKinney, our
holding resolved only the “precise question” whether the state
court had applied the causal-nexus test in that specific case.
Id. at 804. We therefore must examine the state court
decisions in Greenway’s case to determine whether they took
into account all mitigating factors.

    Those decisions came in the context of a criminal
prosecution for a double murder, see Greenway, 653 F.3d at
793, and the underlying circumstances of the crime have
relevance to our understanding of how the state courts
handled mitigating circumstances. We summarize the facts
from our first opinion:

       On March 28, 1988, Pima County Sheriffs
       found a burned 1983 Porsche, which officials
       determined belonged to Frank and Lili
       Champagne. A deputy went to inform the
       Champagnes at their home and discovered the
       bodies of Lili Champagne and her daughter,
       Mindy Peters. Lili had been shot once behind
       the knee and once between the eyes. Mindy
       had been shot twice, once in the jaw and once
       behind the ear. . . . [D]etectives picked up
       Greenway at his sister’s house, [and]
       Greenway told detectives that he had met a
       man named “Red” at a 7–Eleven convenience
       store, and that Red had given both Greenway
       and his co-defendant, Chris Lincoln, a ride in
       a white Porsche. . . . Lincoln confessed to
       stealing and burning the Porsche, and he
       implicated Greenway.         During further
       questioning, Lincoln confessed to
       participating in the killings and again
6                      GREENWAY V. RYAN

        implicated Greenway. Greenway and Lincoln
        were then both arrested and charged with
        several counts, including the murders of Lili
        and Mindy. . . . Further investigation revealed
        that Greenway had attempted to sell the
        victims’ car stereo to Brian Mize, Greenway’s
        co-worker.       According to Mize’s trial
        testimony, Greenway told Mize that
        Greenway went to the victims’ house and
        after taking “some stuff” from the house,
        Greenway sent his co-defendant out and then
        shot the victims.

Id. at 794 (internal citations omitted).

    We also provide in the margin the full text of the relevant
Arizona Supreme Court discussion of aggravating and
mitigating circumstances, as well as the state trial court’s
evaluation.1


    1
       The relevant portion of the Arizona Supreme Court decision reads
as follows:

                                (a) Age

             Defendant presented one statutory mitigating
        factor, A.R.S. § 13-703(G)(5), age, and numerous
        nonstatutory mitigating factors. The trial court
        concluded that defendant’s age, 19 at the time of the
        murders, was the only mitigating factor. We agree with
        the trial court.

                       (b) Defendant’s low I.Q.

             Defendant argues that because he has an I.Q. of 72,
        he “is not only immature and learning disabled, but is
                       GREENWAY V. RYAN                              7




        genuinely mentally retarded.” He also argues that “the
        effect of the retardation on . . . his ability to realize
        what he was doing has to be considered as a mitigating
        factor.” We do not agree.

             Defendant’s own expert testified that defendant
        was borderline functional, and not mentally retarded.
        Moreover, the expert testified that a person with an I.Q.
        of 72 is fully capable of functioning in society and that
        defendant was capable of making judgments with
        limited impairment. Defendant’s former work manager
        testified that defendant was a responsible person, that
        he had been picked for promotion because he had
        shown an ability to supervise other people and that he
        handled problems without any outbreak of irrational
        behavior. As we stated in State v. Ceja, 126 Ariz. 35,
        40, 612 P.2d 491, 496 (1980), “[t]his is not the slow,
        dull, [retarded] individual with [a] significantly
        impaired mental capacity which counsel [seeks] to
        depict,” but rather, an individual who planned two
        weeks in advance to rob the victims and carried out this
        plan.

             We cannot accept defendant’s argument that,
        because he was inept at committing this crime and
        lacked criminal sophistication, his sentence should be
        reduced. We have never held that, as part of the
        sentencing process, the court must look at the crime
        itself to determine if it was carried out with criminal
        sophistication. We agree with the trial court that, under
        the facts of this case, defendant’s I.Q. of 72, which
        places him in a borderline functioning category, was
        neither significant enough to qualify as a mitigating
        factor, nor sufficiently substantial to call for leniency.

Greenway, 170 Ariz. at 168–69.
8                       GREENWAY V. RYAN

    The Arizona Supreme Court’s opinion, on its face, as we
observed before, does not expressly exclude any mitigation
evidence or claim on the ground that it lacked causal
relationship to the commission of the crime. See Greenway,
170 Ariz. at 168–69. Greenway had argued his low I.Q.
should be considered, in addition to his young age. While the
Arizona Supreme Court ultimately agreed with the trial court
that Greenway’s age (nineteen) was the only mitigating
factor, it did consider the evidence presented with respect to
the low I.Q. The court took it into account as a possible
mitigator and appeared to weigh its importance. “We agree
with the trial court that . . . defendant’s I.Q. . . . was neither




    The trial court ruled, in relevant part, as follows:

        Now, after determining whether or not the State has
        proven beyond a reasonable doubt certain aggravating
        factors, the Court must then turn its direction to
        mitigating factors, not only those mitigating factors that
        are set forth in A.R.S. 13-1704(g), but any other
        mitigating factors that have been presented to the Court.
        Looking at A.R.S. 13-1704(g), the Court specifically
        finds there is a mitigating factor, and that is the age of
        the Defendant. At the time of the killings the
        Defendant was nineteen years old, only one year into
        adulthood. The Court has considered all other
        mitigating factors, those presented at the aggravation-
        mitigation hearing, and also those which have been
        submitted to the Court in the sentencing memorandum
        and any other matters of record. In looking at the
        mitigating factor of the age of the Defendant, the Court
        finds that the Defendant’s actions, [and] evidence of
        brutality [] far outweigh[] his chronological, emotional
        and mental age, and the Court finds that there are no
        other mitigating factors sufficiently substantial to call
        for leniency.
                    GREENWAY V. RYAN                         9

[1] significant enough to qualify as a mitigating factor, nor
[2] sufficiently substantial to call for leniency.” Id. at 169.

     The state supreme court not only took into account
Greenway’s argument, but all the evidence presented in the
trial court. The court set forth the evidence Greenway had
submitted, including that of his own expert and work
experience. Id. The court excluded nothing.

    Moreover, the state court, in considering all the evidence
Greenway presented, even cited Lockett for the breadth of
circumstances that should be considered. The court said that
the trial court must consider, in addition to Arizona’s
statutory factors, “any aspect of the defendant’s character or
record and any circumstance of the offense relevant to
determining whether a sentence less severe than death is
appropriate.” Id. (citing Lockett, 438 U.S. at 586).

    The state supreme court thus rejected, on the merits,
Greenway’s claim that his low I.Q. was a mitigating factor,
and it did so on the basis of the evidence in the record. See
id. at 169. The court did not reject any mitigating factor, as
a matter of law, on the theory that it was not related to the
commission of the crime.

    When we look to the language used in all of the state
court opinions that McKinney did cite, we find very different
language from that which the state supreme court used in this
case. The McKinney court itself discussed the various
impermissible causal-nexus approaches. 813 F.3d at 813–17,
824–26. A number of Arizona Supreme Court cases
considered mitigating factors in terms of whether the
defendant’s condition caused him to lose control of his
behavior at the time of the crime. For example, in State v.
10                  GREENWAY V. RYAN

Wallace, the Arizona Supreme Court stated that “[a] difficult
family background is a relevant mitigating circumstance if a
defendant can show that something in that background had an
effect or impact on his behavior that was beyond the
defendant’s control.” 160 Ariz. 424, 427 (1989) (in banc);
see McKinney, 813 F.3d at 813–14. The Arizona Supreme
Court echoed its focus on control in State v. Hoskins,
199 Ariz. 127, 151–52 (2000) (en banc); State v. Martinez,
196 Ariz. 451, 465 (2000) (en banc); State v. Towery,
186 Ariz. 168, 189 (1996) (in banc) (giving little to no
mitigating weight to a defendant’s family background where
the defendant “[did] not prove a loss of impulse control or
explain what caused him to kill”); State v. Jones, 185 Ariz.
471, 490–92, (1996) (in banc); State v. Bolton, 182 Ariz. 290,
314 (1995) (in banc); and State v. Ross, 180 Ariz. 598, 607
(1994) (in banc). See McKinney, 813 F.3d at 814–17, 824.

    At other times, the Arizona Supreme Court focused on
whether the defendant’s mental condition was “linked to his
criminal behavior” or had “any effect on the crimes.” See
e.g., State v. Djerf, 191 Ariz. 583, 598 (1998) (en banc). In
the late 1990s and early 2000s, the Arizona Supreme Court
began explicitly considering whether mitigating factors were
causally linked or connected to the criminal conduct. See
State v. Canez, 202 Ariz. 133, 164 (2002) (en banc) (“A
defendant’s difficult childhood is mitigating only where
causally connected to his offense. . . . [A] tenuous,
speculative nexus is insufficient to constitute significant
mitigation.”); State v. Hoskins, 199 Ariz. at 151. (“For our
purposes on review, it is essential not only that a personality
disorder be shown to exist but that it be causally linked to the
crime at the time the crime is committed.”); State v. Sharp,
193 Ariz. 414, 425 (1999) (en banc) (“Because Appellant
failed to establish a causal connection between his
                    GREENWAY V. RYAN                         11

unfortunate childhood or his abuse of drugs and alcohol and
his criminal actions, sympathy for those events does not
justify allowing him to receive diminished punishment for
this brutal murder.”); State v. Greene, 192 Ariz. 431, 442
(1998) (en banc) (“While it is true that Greene killed to get
money to buy drugs, this is not the sort of causal connection
that would support a claim of mitigation.”). State v.
Rienhardt, 190 Ariz. 579, 592 (1997) (en banc) (“Since [the
defendant] declined to present any evidence of a causal
connection at his aggravation-mitigation hearing, we reject
this mitigating factor.”); Jones, 185 Ariz. at 490–92 (rejecting
mitigating factors for lack of “causal connection”). And in
McKinney’s case, unlike here, the Arizona Supreme Court
cited directly to the causal-nexus test, as articulated in Ross.
See McKinney, 813 F.3d at 803 (citing State v. McKinney,
185 Ariz. 567, 587 (1996) (in banc) (citing Ross, 180 Ariz. at
607)). None of the formulations we enumerated in McKinney
are present in the state court’s Greenway decision.

    The trial court in Greenway’s case likewise considered all
mitigating factors and did not exclude anything on the ground
it lacked a causal nexus to the crime. The trial court
expressly noted that it was required to “turn its direction” not
only to statutory mitigating factors but also “any other
mitigating factors that have been presented to the court.”
Applying this rule, the trial court “considered all other
mitigating factors,” and found only one, Greenway’s age,
deserving of any weight. The court then found that the
aggravating factors—Greenway’s actions and the evidence of
brutality—“far outweigh[ed]” Greenway’s “chronological,
emotional, and mental age” and that no other factors were
“sufficiently substantial to call for leniency.” The court thus
considered and weighed all the factors.
12                  GREENWAY V. RYAN

    The best that petitioner can do to show the state supreme
court committed constitutional error by applying a causal-
nexus test is to point to the way the court distinguished the
mitigating factors in Greenway’s case from those in State v.
Jimenez, 165 Ariz. 444, 455–60 (1990) (in banc). But neither
Jimenez, nor by extension Greenway, suggest a defendant’s
I.Q. should be excluded from consideration absent a showing
of causal nexus. The Arizona Supreme Court decided
Jimenez the year before Greenway’s case, and the same court
in Jimenez found the mitigating factors outweighed the
aggravating factors. See id. at 460. In Greenway’s case, the
state court noted that Greenway had an I.Q. and age
comparable to Jimenez, but that Jimenez, unlike Greenway,
had offered testimony to establish that he suffered from
hallucinations that compelled him to commit murder.
Greenway, 170 Ariz. at 169 (citing Jimenez, 165 Ariz. at
456–60). The Greenway court said:

       Although the defendants in both Jimenez and
       the instant case registered comparable I.Q.s
       and ages, the defendant in Jimenez offered
       substantial testimony to establish that he also
       suffered from hallucinations and delusions
       which compelled him to commit the murder.
       The defendant in the present case limited
       expert testimony about his mental condition to
       his I.Q. The defendant offered no testimony
       to establish he suffered from hallucinations or
       delusions at the time he committed the
       murder.

Id. (internal citation omitted).
                    GREENWAY V. RYAN                         13

    Greenway argues this passage means that there was a
causal nexus in Jimenez but not in Greenway’s case, thus
indicating application of the causal-nexus test to exclude
mitigating evidence in his case. Yet when we look to the
underlying Arizona Supreme Court opinion in Jimenez, we
see the discussion related to the defendant’s mental state at
the time of the crime was not about the impermissible causal-
nexus test, but about the applicability of a statutory factor
relating to mental illness.

    Arizona statutory law at that time required courts to find
a mitigating factor when “[t]he defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to
prosecution.” Ariz. Rev. Stat. §13-703(G)(1) (1989) (current
version at Ariz. Rev. Stat. §13-751(G)(1)). Thus the court in
Jimenez, echoing the statutory language, found the
defendant’s mental illness to be a mitigating factor:
“Although [the defendant’s] impairment was not great
enough to constitute a defense to the crime, we find that
defendant’s mental incapacity was not only a substantial
mitigating factor in this case, but a major contributing cause
of his conduct that was sufficiently substantial to outweigh
the aggravating factors present in this case.” See 165 Ariz. at
459 (internal quotation marks omitted). Accordingly, in
Jimenez, the court concluded: “Given the strong evidence in
this case of the severity of defendant’s mental illness,
combined with the substantial and relevant factor of
defendant’s young age and borderline intelligence level
affecting his intellectual maturity, we believe that leniency is
required.” Id. at 460.
14                  GREENWAY V. RYAN

    Jimenez was not only young and of borderline
intelligence, but also suffered from a mental impairment that
satisfied Arizona’s statutory mitigation requirements.
Greenway had no such impairment. Thus Greenway’s case
differed from Jimenez, not because Greenway failed to show
a causal nexus between his low I.Q. and the murders, but
because Greenway lacked the statutory factor of a mental
impairment. In neither Greenway nor Jimenez did the
Arizona Supreme Court apply a causal-nexus test to exclude
mitigating factors.

    Finally, even if we were to determine that the state court
did apply the causal-nexus test in violation of Eddings, there
could have been no prejudice because the aggravating factors
overwhelmingly outweighed all the evidence that Greenway
asserted as mitigating, including his age and low I.Q. “The
harmless-error standard on habeas review provides that ‘relief
must be granted’ if the error ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’” See
McKinney, 813 F.3d at 822 (quoting Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)). Here, there were significant
aggravating factors that the state court took into account:
Greenway (1) committed multiple first degree murders;
(2) for pecuniary gain; and (3) in an especially cruel, heinous,
and depraved manner. Greenway, 170 Ariz. at 163–68. The
Arizona Supreme Court noted that the multiple first degree
murders constituted “egregious circumstances” and were
“especially cruel.” Id. at 165, 168 (quoting Evans v. State,
304 Md. 487, 538 (1985)). Even if the Arizona Supreme
Court had excluded Greenway’s low I.Q. for lack of a causal
connection to the crime, its factual determinations
demonstrate that Greenway’s I.Q. was entitled to little
mitigating weight. The court noted expert testimony that
Greenway was “fully capable of functioning in society” and
                   GREENWAY V. RYAN                       15

“capable of making judgments with limited impairment.” Id.
at 169. Given the significant aggravating factors, we can say
“with fair assurance” that Greenway’s total evidence in
nonstatutory and statutory mitigation, including his age and
evidence of low I.Q., was not sufficient to overcome the
aggravating factors and call for leniency. See McKinney,
813 F.3d at 822 (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)).

                     CONCLUSION

    Neither the Arizona Supreme Court nor the trial court
applied an impermissible causal-nexus test to exclude
mitigating evidence. Both considered all of Greenway’s
evidence offered in mitigation and found it insufficient to
outweigh the serious aggravating factors. Accordingly, there
was no violation of clearly established federal law.

   AFFIRMED.
