The opinion
FILED
NOT FOR PUBLICATION MAY 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DINO WAYNE KYZAR, No. 08-15794
Petitioner - Appellant, D.C. No. 2:06-CV-02015-SRB
v.
MEMORANDUM*
CHARLES L. RYAN and STATE OF
ARIZONA ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge,** ALARCÓN and RYMER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Chief Judge Kozinski was drawn to replace Judge Trager, who died
on January 5, 2011. He has read the briefs, reviewed the record, and listened to the
tape of oral argument.
Dino Wayne Kyzar appeals the district court’s denial of his petition for writ
of habeas corpus.
I
The severance determination by the Arizona Court of Appeals was not
contrary to, or an unreasonable application of, federal law. See 28 U.S.C.
§ 2254(d); Zafiro v. United States, 506 U.S. 534, 539 (1993). Long’s testimony
was not “essential exculpatory evidence.” Nor was Kyzar convicted on the basis of
“rub off” evidence; most of the evidence was common to both defendants, and
even if it were proper to consider the post-trial juror interview, the interview does
not show the jury was unable to consider the evidence against each defendant
separately. In fact, the jury acquitted Kyzar on two counts. Neither the state’s
requirement that Kyzar share peremptory challenges with Long, nor the
empaneling of a death-qualified jury, violated any clearly established right to a fair
trial. See Stilson v. United States, 250 U.S. 583, 585-86 (1919); see also Buchanan
v. Kentucky, 483 U.S. 402, 420 (1987). Finally, the trial court’s admission of
autopsy photographs was not unreasonable because they were relevant to establish
Kyzar’s role in the conspiracy and its objective. Thus, clearly established rights
were not offended by the state court’s determination, singly, or overall.
II
The trial transcript was lodged in this court, and we prefer in this case for the
district court in the first instance to review portions relevant to Kyzar’s
insufficiency of the evidence claim. For this limited purpose, we vacate the
judgment and remand. The panel will retain jurisdiction over an appeal, if any,
from the order on remand.
III
Because Kyzar has not made a “substantial showing of the denial of a
constitutional right” on the remaining issues, we decline to grant a certificate of
appealability. See 28 U.S.C. § 2253(c)(2).
AFFIRMED IN PART; VACATED AND REMANDED IN PART. The
parties shall bear their own costs.