No. IN THE SUPREME COURT OF THE UNITED STATES Charles Michael Hedlund, Petitioner, vs. State of Arizona, Respondent. ***CAPITAL CASE*** ON PETITION FOR A WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT APPENDIX TO PETITION FOR WRIT OF CERTIORARI JON M. SANDS Federal Public Defender District of Arizona Dale A. Baich (Ohio Bar No. 0025070) Counsel of Record Sara Chimene-Weiss (Massachusetts Bar No. 691394) 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 (602) 382-2816 voice (602) 889-3960 facsimile [email protected] [email protected] Attorneys for Petitioner Hedlund No. ___________ APPENDIX TO PETITION FOR WRIT OF CERTIORARI Appendix A: Opinion, State v. Hedlund, CR-93-0377-AP (Ariz. Dec. 10, 2018) ........ 1a Appendix B: Order and Amended Opinion, Hedlund v. Ryan, 09-99019 (9th Cir. Apr. 13, 2017) ............................................................................................................. 32a Appendix C: Opinion, State v. Hedlund, CR-93-0377-AP (Ariz. May 16, 1996) .... 103a Appendix D: Transcript: Sentencing and Special Verdict, State v. Hedlund, CR 91-90926 (Maricopa Cty. Super. Ct. July 30, 1993) ......................................... 149a Appendix E: Order denying Motion for Reconsideration, State v. Hedlund, CR-93-0377-AP (Ariz. Feb. 22, 2019) ...................................................................... 176a Appendix F: Motion to Conduct New Independent Review of Death Sentence, State v. Hedlund, CR-93-0377-AP (Ariz. July 10, 2017) ........................................ 177a Appendix G: Response to Motion to Conduct New Independent Review of Death Sentence, State v. Hedlund, CR-93-0377-AP (Ariz. Aug. 31, 2017) ....................... 184a Appendix H: Opening Brief, pp. 59-62, State v. Hedlund, CR-93-0377-AP (Ariz. Apr. 5, 2018) ............................................................................................................. 220a IN THE SUPREME COURT OF THE STATE OF ARIZONA STATE OF ARIZONA, Appellee, v. CHARLES MICHAEL HEDLUND, Appellant. No. CR-93-0377-AP Filed December 10, 2018 The Honorable Steven Douglas Sheldon, Judge No. CR1991-090926 (A) Independent Review of Capital Sentence SENTENCE AFFIRMED COUNSEL: Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, John Pressley Todd (argued), Special Assistant Attorney General, Phoenix, Attorneys for State of Arizona Jon M. Sands, Federal Public Defender, District of Arizona, Paula K. Harms (argued), Assistant Federal Public Defender, Phoenix, Attorneys for Charles Michael Hedlund 1a STATE V. HEDLUND Opinion of the Court JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER, TIMMER, and GOULD joined. JUDGE VÁSQUEZ* dissented. JUSTICE BOLICK, opinion of the Court: ¶1 The Ninth Circuit Court of Appeals found error in this Court’s independent review of Charles Michael Hedlund’s death sentence and remanded the case to the federal district court with instructions to grant the writ of habeas corpus unless the State stipulates to have the death sentence vacated. We granted the State’s motion to conduct a new independent review and now affirm Hedlund’s death sentence. BACKGROUND ¶2 In 1992, a jury found Hedlund guilty of first degree murder for killing Jim McClain and second degree murder for killing Christine Mertens. State v. McKinney, 185 Ariz. 567, 571 (1996) (reviewing factual and procedural history in a consolidated case involving Hedlund). Both killings occurred during a burglary spree committed by Hedlund and his half- brother and co-defendant, James McKinney. The trial judge found two aggravating factors concerning the first degree murder: (1) Hedlund was previously convicted of a serious offense; and (2) he committed the murder for pecuniary gain. See A.R.S. § 13-751(F)(2), (F)(5).1 After hearing the mitigating evidence, the trial judge sentenced Hedlund to death. On appeal, this Court struck the first aggravating factor but affirmed Hedlund’s death sentence because it found the mitigating evidence was not * Justice John R. Lopez IV recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Garye L. Vásquez, Vice Chief Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter. 1 Section 13-703, the effective statute at the time of Hedlund’s crimes and direct appeal, was renumbered as § 13-751 in 2008. 2 2a STATE V. HEDLUND Opinion of the Court “sufficiently substantial to call for leniency” in light of the pecuniary gain aggravator. McKinney, 185 Ariz. at 580–84. ¶3 Hedlund filed a petition for post-conviction relief (“PCR”), which the trial court denied, and this Court denied his subsequent petition for review. In 2003, Hedlund filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona as well as a motion to expand the evidentiary record, which was denied. The district court ruled that Hedlund was not entitled to habeas relief. In 2017, the Ninth Circuit reversed, concluding that habeas relief was warranted because this Court had erred in its independent review of the death sentence when considering Hedlund’s mitigation evidence. Hedlund v. Ryan, 854 F.3d 557, 587 (9th Cir. 2017). The Ninth Circuit reasoned that this Court’s application of the “unconstitutional causal nexus test” constituted error under Eddings v. Oklahoma, 455 U.S. 104 (1982), and this “error ‘had [a] substantial and injurious effect’ on the sentencing decision.” Hedlund, 854 F.3d at 586–87 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). ¶4 Consistent with State v. Styers, 227 Ariz. 186, 187 ¶ 5 (2011), we granted the State’s motion to conduct a new independent review. We have jurisdiction under article 6, section 5(6) of the Arizona Constitution and A.R.S. §§ 13-755(A), 13-4031, and 13-4032(4). DISCUSSION I. Scope of Review ¶5 In granting the State’s motion, we ordered the parties to submit briefing on “[w]hether the proffered mitigation is sufficiently substantial to warrant leniency in light of the existing aggravation.” This order reflects that our new independent review is focused on correcting the constitutional error identified by the Ninth Circuit. See Styers, 227 Ariz. at 187–88 ¶¶ 4–7 (conducting a new independent review in a procedurally similar case). That is, our review is limited to considering the mitigating factors without the causal nexus requirement and reweighing them against the established aggravator. ¶6 Hedlund argues that this Court does not have jurisdiction to conduct a new independent review because this is a non-final case and 3 3a STATE V. HEDLUND Opinion of the Court instead asks us to remand this case to the trial court for resentencing before a jury. We disagree and reaffirm the scope of review and our holding in Styers. Id. at 187 ¶ 5 (holding that a “case is final when ‘a judgment of conviction has been rendered, the availability of appeal exhausted, and . a petition for certiorari finally denied,’” and therefore does not need to be remanded for a new resentencing proceeding under Ring v. Arizona, 536 U.S. 584 (2002) (citation omitted)). ¶7 Hedlund also asserts that the United States Supreme Court’s recent decision in Hurst v. Florida, 136 S. Ct. 616 (2016), requires that he be resentenced. However, Hurst only held that a jury must find the facts that support a death sentence—essentially reaffirming the rule the Court articulated in Ring. Id. at 624; see also id. at 621 (discussing Ring and stating that a defendant has a “right to have a jury find the facts behind his punishment”). These rules are reflected in Arizona’s current statutory scheme. A.R.S. § 13-752. ¶8 We also reject Hedlund’s argument that, because the Sixth Amendment requires the entire weighing of evidence be done by the jury, resentencing is required here. Although the United States Supreme Court has held that the Sixth Amendment requires that “the decision of issues of fact must be fairly left to the jury,” United States v. Murdock, 290 U.S. 389, 394 (1933), overruled in part on other grounds by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52 (1964), the ultimate decision of whether mitigation is substantial enough to warrant leniency “is not a fact question to be decided based on the weight of evidence, but rather is a sentencing decision to be made by each juror based upon the juror’s assessment of the quality and significance of the mitigating evidence that the juror has found to exist.” State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21 (2005); cf. Blakely v. Washington, 542 U.S. 296, 303 (2004) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (citing Ring, 536 U.S. at 602)). Therefore, the Sixth Amendment does not require this Court to remand for resentencing as the independent review here is not a factfinding determination. ¶9 Finally, we decline Hedlund’s invitation to include the evidence newly developed in PCR and habeas proceedings as part of our independent review. Section 13-755(C) establishes our jurisdiction for 4 4a STATE V. HEDLUND Opinion of the Court independent review and provides that we may “remand[] a case for further action if the trial court erroneously excluded evidence or if the appellate record does not adequately reflect the evidence presented.” Thus, § 13-755(C) indicates that additional evidence should be admitted first in the trial court rather than in this Court. ¶10 Further, although we reviewed evidence presented in habeas proceedings in State v. Clabourne, the procedural context was different. See 194 Ariz. 379 (1999). In Clabourne, the independent review was from resentencing in which the defendant presented evidence from habeas proceedings and the sentencing court made findings based on that evidence.