Whether transfer to the district court for a hearing pursuant to this Court's original habeas jurisdiction is warranted in this exceptional case

QUESTION PRESENTED This case presents a claim of innocence of the death penalty. The State of Arizona represented to this Court that the statutory aggravating factor it found to be facially vague in Walton v. Arizona, 497 U.S. 639, 654 (1991), especial heinousness or depravity under A.R.S. § 13-703(F)(6), would be narrowed by the state courts. See Respondent’s Brief on the Merits, Walton v. Arizona, U.S. Sup. Ct. No. 88-7351, 1988 WL 409858 (Dec. 21, 1988), at 47-48. The Arizona Supreme Court later held that it had not consistently narrowed the factor. See State v. Bocharski, 189 P.3d 403, 421 (Ariz. 2008). David Gulbrandson properly brought a successive state post-conviction petition alleging a significant change in state law under Arizona Rule of Criminal Procedure 32.1(g) in which he sought application of Bocharski’s narrowing to void his death eligibility under the (F)(6) factor. The state trial court arbitrarily and capriciously misapplied Bocharski. The district court, on Gulbrandson’s second-in-time petition pursuant to 28 U.S.C. § 2254, ruled that relief would lie for a claim that federal due process was violated where a state court arbitrarily and capriciously applied state law, but Gulbrandson could not bring that claim because he had not first obtained authorization from the Ninth Circuit to file a second or successive (“SOS”) petition under 28 U.S.C. § 2244(b)(3). Subsequently, the Ninth Circuit summarily denied Gulbrandson authorization to file the SOS petition. The Question Presented is: Whether transfer to the district court for a hearing pursuant to this Court’s original habeas jurisdiction is warranted in this exceptional case where the district court acknowledged the existence of a colorable federal due process claim that the state court arbitrarily and capriciously applied state law in rejecting a second-in-time challenge to the sole statutory aggravating factor, but the Ninth Circuit denied authorization to file the meritable SOS petition without assignment of grounds. i