Whether reasonable jurists would debate the correctness of the district court's procedural ruling that Gulbrandson's second-in-time § 2254 petition was second or successive for purposes of 28 U.S.C. § 2244(b)(2)(B)

QUESTIONS PRESENTED FOR REVIEW CAPITAL CASE In Jurek v. Texas, 428 U.S. 262, 272 (1976), this Court upheld Texas’ capital sentencing statute against a challenge of facial vagueness on representations by the Court of Criminal Appeals | that it would interpret a special question sufficiently broadly to allow a sentencing jury to consider | the full breadth of mitigating evidence offered. When that promise was not fulfilled in a later case, | this Court reversed a death sentence. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989). Similarly, | the State of Arizona represented to this Court in its brief in Walton v. Arizona, 497 U.S. 639 (1990), | that the facially vague statutory aggravating factor at issue here would be narrowed. The Arizona | Supreme Court later held that it had not consistently narrowed that factor. See State v. Bocharski, : 218 Ariz. 476, 494, 189 P.3d 403, 421 (2008). In Gulbrandson, in a successive collateral relief proceeding, the state court misapplied the narrowing required by Bocharski, leaving the sole statutory aggravator un-narrowed. The district court denied relief, and that court and the Ninth Circuit denied a certificate of appealability. The questions presented for review are: (1) | Whether reasonable jurists would debate the correctness of the district court’s procedural ruling that Gulbrandson’s second-in-time § 2254 petition was . | second or successive for purposes of 28 U.S.C. § 2244(b)(2)(B), where its factual predicate was a new merits judgment of death eligibility under A.R.S. § 13703(F)(6), in a successive post-conviction relief proceeding, and, therefore, the claim was unripe at the time he filed his the initial § 2254 petition; and, (2) Whether reasonable jurists would debate whether Gulbrandson pleaded a | substantial Eighth Amendment claim where the state court failed to apply a narrowing construction to the “especially heinous or depraved” statutory aggravating factor found to be facially vague in Walton, see ARS. § 13-703(F)(6), by failing to apply the crucial curative mental state element prescribed by Bocharski to prescribe when the infliction of injuries is “gratuitous,” itself a narrowing | definition of (F)(6), which resulted in Gulbrandson’s being found eligible for death based solely on the finding of an un-narrowed statutory aggravator. ; i | | .