John Espiredion Valerio v. Jackie Crawford, Director of the Department of Prisons E.K. McDaniel Warden

RYMER, Circuit Judge,

with whom ■ Circuit Judges O’SCANNLAIN, T.G. NELSON, and GRABER join, Dissenting.

Today the majority reaches a claim that should not be reached' — whether the Nevada Supreme Court could or did cure the “depravity of mind” aspect of the “torture, depravity of mind and mutilation” aggravating circumstance — and holds, without warrant, that a state supreme court may not apply a narrowing construction to an unconstitutionally vague instruction and determine that it is supported by the evidence as applied, when the penalty-phase factfinder is a jury instead of a judge.

Neither…