Sansing v. Ryan, 13-99001

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWATFORD, CIRCUIT JUDGE
PartiesJohn Edward Sansing, Petitioner-Appellant, v. Charles L. Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees.
Docket Number13-99001
Decision Date17 May 2021

John Edward Sansing, Petitioner-Appellant,

Charles L. Ryan, Director, Arizona Department of Corrections; Ernest Trujillo, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees.

No. 13-99001

United States Court of Appeals, Ninth Circuit

May 17, 2021

Argued and Submitted January 22, 2019 San Francisco, California

Amended July 29, 2022

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

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

Lacy Stover Gard (argued), Chief Counsel; John Pressley Todd, Special Assistant Attorney General; Mark Brnovich, Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondents-Appellees.

Before: Marsha S. Berzon, Consuelo M. Callahan, and Paul J. Watford, Circuit Judges.




Habeas Corpus / Death Penalty

The panel filed an order (1) stating that the opinion filed May 17, 2021, is amended by a concurrently filed opinion, and that Judge Berzon's dissent is amended by a concurrently filed dissent; (2) denying a petition for panel rehearing; and (3) denying on behalf of the court a petition for rehearing en banc, in a case in which the district court denied John Edward Sansing's federal petition for a writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Sansing pleaded guilty to first-degree murder and, in 1999, was sentenced to death by the State of Arizona.

Sansing's Claim 1 was predicated on the alleged denial of his Sixth Amendment right to trial by jury. At the time of his trial, Arizona law mandated that the trial judge alone determine whether a sentence of death should be imposed following a conviction for first-degree murder. The United States Supreme Court declared that sentencing scheme unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002). On remand for further consideration in light of Ring, the Arizona Supreme Court ruled that the denial of Sansing's right to a jury trial during the penalty phase was harmless beyond a reasonable doubt.


To establish prejudice, a federal habeas petitioner must, under Brecht v. Abrahamson, 507 U.S. 619 (1993), demonstrate that a constitutional error resulted in "actual prejudice"-that is, a "substantial and injurious effect or influence" on the outcome.

In the amended opinion, the panel noted that the United States Supreme Court clarified in Brown v. Davenport, 142 S.Ct. 1510 (2022), that satisfying Brecht is only a necessary, not a sufficient condition to relief; a federal habeas petitioner must meet the requirements of AEDPA as well. So when, as here, the state court has determined on direct appeal that an error was harmless beyond a reasonable doubt-the standard required for review of non-structural constitutional errors under Chapman v. California, 386 U.S. 18 (1967)-a petitioner must demonstrate that the court applied Chapman in an objectively unreasonable manner.

The panel began by deciding whether the Arizona Supreme Court's application of Chapman was objectively unreasonable under AEDPA. Rejecting Sansing's contention that the Arizona Supreme Court's determination was "contrary to" or an "unreasonable application of" clearly established federal law, the panel concluded that fairminded jurists applying the governing beyond-a-reasonable-doubt standard could conclude that the absence of a jury trial did not affect the Arizona Supreme Court's conclusions (a) that any reasonable jury would have found that the murder was committed in both an "especially cruel" and an "especially heinous" manner (Ariz. Rev. Stat. § 13-703(F)(6) (1999)), or (b) that no rational jury would have found the existence of any statutory mitigating circumstances or that Sansing's non-statutory mitigating circumstances were sufficiently substantial to call for leniency. Because Sansing failed to satisfy AEDPA, the panel did not need to consider whether


the absence of a jury trial resulted in actual prejudice under Brecht.

Sansing's Claim 2 alleged that his trial counsel rendered ineffective assistance in presenting his mitigation defense during the penalty phase. The state post-conviction review (PCR) court held that Sansing failed to establish either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The panel concluded that, as to most of the challenged aspects of counsel's representation, Sansing did not demonstrate that the PCR court's resolution of Strickland's deficient-performance prong was objectively unreasonable; and that as to the remaining aspects of the representation, the PCR court reasonably determined that Sansing did not demonstrate prejudice.

In Claim 8, Sansing alleged that his waiver of the privilege against self-incrimination was not knowing and voluntary because he was unaware that his admission, during the plea colloquy, that the victim was conscious when he raped her could be used to prove cruelty under § 13-703(F)(6). Affirming the denial of relief as to this claim, the panel observed that the United States Supreme Court has not yet held that the trial court must affirmatively discuss during the plea colloquy the potential impact of a defendant's factual admissions may have on capital sentencing proceedings.

In Claim 4, Sansing asserted an ineffective-assistance-of-counsel claim that used the same factual predicate as Claim 8. The panel concluded that even accepting that counsel rendered ineffective assistance, a fairminded jurist could conclude that Sansing failed to show a reasonable probability he would have received a different sentence.


In Claim 7, Sansing alleged that the Arizona courts violated the Eighth Amendment by applying an impermissible "causal nexus" test when assessing his non-statutory mitigating circumstances. See Eddings v. Oklahoma, 455 U.S. 104 (1982), and McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). The panel held that the sentencing court did not strip the mitigating circumstances of all weight by applying an unconstitutional causal-nexus test. The panel wrote that it is possible that the Arizona Supreme Court applied a rule contrary to Eddings, but did not need to resolve that issue because even if the Arizona Supreme Court erred in this regard, Sansing cannot show actual prejudice under Brecht.

Dissenting, Judge Berzon would grant the petition as to Claim 1, Ring error prejudice, and so would not reach the other challenges to the death sentence discussed in the majority opinion. She wrote that a court granting habeas relief must apply both the AEDPA/Chapman test as well as the standard set forth in Brecht; she therefore applied both tests. She wrote that the Arizona Supreme Court's application of the "harmless beyond a reasonable doubt" standard from Chapman was contrary to federal law, as clearly established by Neder v. United States, 527 U.S. 1 (1999), so this court owes no deference to its harmlessness determination. She would therefore review under Brecht whether the deprivation of the right to a jury determination had a "substantial and injurious effect" on Sansing's sentence, which was satisfied because Sansing presented sufficient evidence to allow a jury to conclude that, because of his crack cocaine use, his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was "significantly impaired." Ariz. Rev. Stat. § 13-703(G)(1). She concurred in the majority's


analysis of Claims 4 and 8, relating to the factual basis offered when pleading guilty.



The opinion filed May 17, 2021, and appearing at 997 F.3d 1018, is amended by the opinion filed concurrently with this order. Judge Berzon's dissent is also amended by the dissent filed concurrently with this order.

With these amendments, the panel unanimously votes to deny the petition for panel rehearing. Judge Callahan and Judge Watford vote to deny the petition for rehearing en banc, and Judge Berzon so recommends. The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, filed June 27, 2022, is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained.



In 1999, the State of Arizona sentenced John Sansing to death for the murder of Trudy Calabrese. This appeal arises from the district court's denial of Sansing's federal petition for a writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The district court granted a certificate of appealability as to five claims, and we later issued a certificate of appealability as to a sixth. We agree with the district court that Sansing has not shown an entitlement to relief on any of his claims.


I. Factual and Procedural Background

Our summary of the facts is drawn from the Arizona Supreme Court's first opinion on direct appeal. State v. Sansing, 26 P.3d 1118, 1122-23 (Ariz. 2001) (Sansing I). Sansing's wife, Kara Sansing, provided much of this narrative when she testified during the penalty phase of Sansing's trial. (Like the parties, we refer to Sansing's family members by their first names to avoid confusion.)

On February 24, 1998, Sansing and Kara were on the fourth consecutive day of heavy crack cocaine consumption. Sansing called Kara throughout the day to discuss the need to obtain money to buy more drugs. He also informed her that he had purchased crack cocaine, smoked a portion of it, and was saving the rest for her. Kara returned home from work around 3:20 p.m., and the two immediately...

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