Charles Hedlund v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES MICHAEL HEDLUND, No. 09-99019

Petitioner-Appellant,

D.C. No.

v. 2:02-cv-00110-DGC

CHARLES L. RYAN,

Respondent-Appellee.

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

December 6, 2012—Pasadena, California

Filed April 24, 2014

Before: Kim McLane Wardlaw, Carlos T. Bea, and N.

Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Partial Concurrence and Partial Dissent by Judge Wardlaw

2 HEDLUND V. RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a

conviction and capital sentence for murder.

The panel held that the district court properly denied

relief on petitioner’s claims regarding (1) the use of a visible

leg brace, (2) the use of dual juries for petitioner and his co-

defendant, (3) juror bias, (4) ineffective assistance of counsel

during the plea process, (5) consideration of mitigating

evidence and the use of an unconstitutional causal nexus test

under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v.

Oklahoma, 455 U.S. 104 (1982), and (6) ineffective

assistance of counsel during the penalty phase, because the

state court decision denying relief was not contrary to, or an

unreasonable application of, clearly established federal law,

nor was it based on an unreasonable determination of the

facts.

Judge Wardlaw concurred in part and dissented in part.

She explained that, because the relevant state court decisions

addressing petitioner’s claim under Eddings, and his

ineffective assistance of counsel and shackling claims are

unreasonable applications of clearly established Supreme

Court precedent and include unreasonable factual

determinations, she would reverse and remand this appeal.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HEDLUND V. RYAN 3

COUNSEL

Paula Kay Harms, Federal Public Defender’s Office, Phoenix,

Arizona, for Petitioner-Appellant.

Jon Anderson, Arizona Attorney General’s Office, Phoenix,

Arizona, for Respondent-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

Petitioner Charles Michael Hedlund, an Arizona state

prisoner, appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. A jury convicted Hedlund of

one count of first degree murder for the 1991 killing of Jim

McClain. The trial court sentenced Hedlund to death for the

murder. The jury also convicted Hedlund of the second

degree murder of Christene Mertens. We affirm the district

court and hold that Hedlund has not raised a viable claim for

relief under § 2254.

We address six claims raised in Hedlund’s petition:

(1) the use of a leg brace as a security measure during trial;

(2) the use of dual juries; (3) juror bias; (4) counsel’s

performance during the plea process; (5) whether all

mitigating evidence was considered under Lockett v. Ohio,

438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104

(1982), and their progeny; and (6) counsel’s performance

4 HEDLUND V. RYAN

during the penalty phase.1 We conclude that the relevant state

court decision underlying each of Hedlund’s claims was not

contrary to, nor an unreasonable application of, clearly

established federal law or based on an unreasonable

determination of the facts before that court. See 28 U.S.C.

§ 2254(d).

FACTS AND PROCEDURAL HISTORY

Because the findings of fact in the last reasoned state

court decision are entitled to a presumption of correctness,

rebuttable only by clear and convincing evidence, we adopt

the statement of facts as presented by the Arizona Supreme

Court in its 1996 opinion on consolidated direct appeal. See

Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012);

Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2008).

Beginning February 28, 1991, James Erin

McKinney and Charles Michael Hedlund

(Defendants) commenced a residential

burglary spree for the purpose of obtaining

cash or property. In the course of their

extensive planning for these crimes,

McKinney boasted that he would kill anyone

who happened to be home during a burglary

and Hedlund stated that anyone he found

would be beaten in the head.

1

Because Hedlund has not shown that resolution of his remaining claims

is “debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003), we decline to reach the other uncertified issues on

appeal. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098,

1102–04 (9th Cir. 1999) (per curiam).

HEDLUND V. RYAN 5

Defendants enlisted two friends to provide

information on good burglary targets and to

help with the burglaries. These two friends,

Joe Lemon and Chris Morris, were not

physically involved in the burglaries in which

the murders occurred. It was from Lemon and

Morris, however, that Defendants learned that

Christene Mertens would make a good

burglary target.

The first burglary in the spree occurred on

February 28, 1991. Mertens’ home was the

intended target that night, but she came home

and scared the would-be burglars away. A

different residence was chosen to burglarize,

but Defendants obtained nothing of value.

Both Defendants, as well as Lemon and

Morris, were involved in this crime.

The second and third burglaries occurred the

next night, March 1. This time Lemon was not

involved. The three participants stole a .22

revolver, $12, some wheat pennies, a tool belt,

and a Rolex watch.

A. The first murder

The fourth burglary took place on March 9,

1991. This time only McKinney and Hedlund

were involved. Mertens was picked again

because Defendants had been told by Lemon

and Morris, who knew Mertens’ son, that

Mertens kept several thousand dollars in an

orange juice container in her refrigerator.

6 HEDLUND V. RYAN

Mertens was home alone when Defendants

entered the residence and attacked her. Beaten

and savagely stabbed, Mertens struggled to

save her own life. Ultimately, McKinney held

her face down on the floor and shot her in the

back of the head, covering his pistol with a

pillow to muffle the shot. Defendants then

ransacked the house and ultimately stole $120

in cash.

B. The second murder

Defendants committed the fifth burglary on

March 22, 1991. The target was Jim McClain,

a sixty-five-year-old retiree who restored cars

for a hobby. McClain was targeted because

Hedlund had bought a car from him some

months earlier and thought McClain had

money at his house. Entry was gained through

an open window late at night while McClain

was sleeping. Hedlund brought along his .22

rifle, which he had sawed-off to facilitate

concealment. Defendants ransacked the front

part of the house then moved to the bedroom.

While he was sleeping, McClain was shot in

the back of the head with Hedlund’s rifle.

Defendants then ransacked the bedroom,

taking a pocket watch and three hand guns;

they also stole McClain’s car.

State v. McKinney, 917 P.2d 1214, 1218–19 (Ariz. 1996) (en

banc), superseded by statute on other grounds as stated in

State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc).

HEDLUND V. RYAN 7

Hedlund and McKinney were each indicted on two counts

of first degree murder and four other counts relating to the

robberies. Both Defendants were tried in the same courtroom

before dual juries. Before returning its verdict, Hedlund’s

jury asked whether he could “be convicted as an accomplice

to the burglary and not be convicted in the murder charge.”

On November 12, 1992, the jury found Hedlund guilty of the

second-degree murder of Mertens, the first-degree murder of

McClain, and lesser charges. In a special verdict, the jury

unanimously found that Hedlund was guilty of the

premeditated murder of McClain, rejecting a felony murder

theory. The trial court sentenced Hedlund to death for the

first degree murder of McClain and to terms of imprisonment

on the lesser charges.

Upon direct appeal, the Arizona Supreme Court affirmed

the conviction and sentence. McKinney, 917 P.2d 1214. In

its opinion, the Arizona Supreme Court considered five

claims relevant to this appeal: (1) whether the use of dual

juries deprived Hedlund of his right to a fair trial, (2) whether

ordering Hedlund to wear a visible leg restraint during trial

deprived Hedlund of his right to a fair trial, (3) whether

Hedlund was denied his right to a fair and impartial jury

when the trial court refused to dismiss a juror distantly related

to one of the victims, (4) claims surrounding the negotiation

of a second plea deal, and (5) the consideration and weighing

of aggravating and mitigating factors.

The Arizona Supreme Court denied relief on all claims

and noted “ample evidence” that Hedlund killed McClain,

including: Hedlund’s finger and palm prints were on

McClain’s briefcase, which had been rifled during the

burglary; Hedlund’s fingerprints were on the magazine of his

sawed-off rifle; the bullet that killed McClain was consistent

8 HEDLUND V. RYAN

with having come from Hedlund’s rifle; Hedlund had

modified his rifle by sawing it off in order to conceal it;

Hedlund hid the rifle after the murder; Hedlund asked Morris

to get rid of the rifle before police found it; and Hedlund

expressed remorse after he was arrested.

After the Arizona Supreme Court rejected Hedlund’s

claims, Hedlund filed a petition for post-conviction relief

(PCR) and then an amended PCR petition in the state trial

court. On PCR review, the trial court denied the amended

petition without an evidentiary hearing. The Arizona

Supreme Court summarily denied Hedlund’s petition for

review.

On August 5, 2003, Hedlund filed the operative amended

petition for a writ of habeas corpus in federal district court.

Hedlund later filed a motion to expand the record and for

evidentiary development as to certain claims. On March 31,

2005, the district court denied the motion to expand the

record and denied six of Hedlund’s claims. On August 10,

2009, the district court denied Hedlund’s remaining claims,

dismissed the petition, and entered judgment.

The district court granted a certificate of appealability

(COA) on three claims. We expand the COA to include three

additional claims, as explained below. We otherwise deny

Hedlund’s request to expand the COA.

STANDARD OF REVIEW

“We review de novo the district court’s decision to grant

or deny a petition for a writ of habeas corpus.” Rhoades v.

Henry, 598 F.3d 495, 500 (9th Cir. 2010). Because Hedlund

initiated district court proceedings in 2002, the Antiterrorism

HEDLUND V. RYAN 9

and Effective Death Penalty Act of 1996 (AEDPA) applies.

See Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). A

petitioner must overcome a high threshold to obtain relief

under AEDPA:

Federal habeas relief may not be granted for

claims subject to § 2254(d) unless it is shown

that the earlier state court’s decision was

contrary to federal law then clearly

established in the holdings of [the Supreme]

Court, § 2254(d)(1); or that it involved an

unreasonable application of such law,

§ 2254(d)(1); or that it was based on an

unreasonable determination of the facts in

light of the record before the state court,

§ 2254(d)(2).

Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 785 (2011)

(internal quotation marks and citation omitted). The “only

definitive source of clearly established federal law under

AEDPA is the holdings (as opposed to the dicta) of the

Supreme Court as of the time of the state court decision.”

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003),

overruled on other grounds by Lockyer v. Andrade, 538 U.S.

63, 71 (2003).

If Supreme Court “cases give no clear answer to the

question presented, . . . it cannot be said that the state court

unreasonably applied clearly established Federal law.”

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal

quotation marks omitted). In other words, “‘[i]t is not an

unreasonable application of clearly established Federal law

for a state court to decline to apply a specific legal rule that

has not been squarely established by [the Supreme Court].’”

10 HEDLUND V. RYAN

Harrington, 131 S. Ct. at 786 (quoting Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009)).

In cases where a petitioner identifies clearly established

federal law and challenges the state court’s application of that

law, our task under AEDPA is not to decide whether a state

court decision applied the law correctly. See id. at 785.

Rather, we must decide whether the state court decision

applied the law reasonably. See id. (“‘[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.’” (quoting Williams v. Taylor,

529 U.S. 362, 410 (2000)). If the state court applied the law

reasonably, we must deny relief. See id. Thus, relief is

proper only “in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts

with [the Supreme Court’s] precedents.” Id. at 786.

DISCUSSION

I. Visible Leg Brace at Trial

A. Background and procedural history

The trial court ordered both Hedlund and McKinney to

wear a leg brace during trial, because it was important to

courtroom security. During a pretrial hearing, Deputy Sheriff

Jack Roger Lane testified that he was aware of a 1992 escape

plot by Hedlund and McKinney. The plan was to “jump one

of the guards, take his uniform and his weapon and one of

them would put the uniform on and they would walk out

together. They would handcuff the guard and leave him

there.” Lane received this information third hand from a

subordinate officer, who heard it from an inmate. McKinney

was specifically identified in the plot. The other individual

HEDLUND V. RYAN 11

was someone “charged with murder,” but Hedlund was not

specifically named in the discussion on the record.2 Although

Lane could not confirm it, the prosecutor was aware of an

earlier escape attempt by McKinney during the summer of

1991.

Hedlund’s counsel challenged the leg brace, arguing that

McKinney was the flight risk, not Hedlund. Recognizing his

responsibility to maintain courtroom security, the trial court

found it would be “irresponsible” to ignore the nature of the

charges filed and the fact that both Defendants would be in

close proximity to the jurors, staff, and others. The court

denied the request to remove Hedlund’s leg brace, finding

“reasonably reliable evidence that there is indeed a real

escape risk in this case.” The court concluded that the leg

brace was “a reasonable alternative to any other type of

restraint that could be imposed on [Hedlund and McKinney]

to assist in the preservation of a safe environment for

everyone [in the courtroom].” The court also attempted to

minimize any potential prejudice by making the leg brace less

visible. The court ordered new defense tables with backs

covering two feet of the four-foot gap between the table top

and the floor. The court also ensured that the Defendants

would be seated in the courtroom before the juries arrived so

2

When Lane was recalled at a later time, he testified that Hedlund’s “jail

card” (which tells officers about the risks posed by inmates), contained a

narrative about an escape plan. Specifically, the narrative read, “Warning,

take keys and clothing per class A1920. McKinney planning escape by

jumping guard per information, 300120, per request CPD 2525.” While

no specific mention of Hedlund was given in this narrative, the escape

warning was presumably applied to him as well because the narrative

appeared on Hedlund’s jail card.

12 HEDLUND V. RYAN

the jurors would not see the Defendants walking stiff-legged

in the braces.3

Hedlund’s counsel later filed multiple written motions

objecting to the leg brace. During a post-trial evidentiary

hearing, the court called Officer Richard Morris, one of the

deputies present during trial. Officer Morris testified that

during trial he was able to see the leg brace, similar to what

was shown in a picture taken from the jury box. Hedlund’s

investigator testified that she spoke with several jurors

regarding the leg brace. The jurors agreed that it was

understandable that the Defendants (who had been charged

with such serious crimes) were put in some sort of restraint.

While the restraints seemed to provide a sense of security to

the jurors, the jurors stated that the leg brace did not have any

impact on their verdict.

On Hedlund’s motion for new trial, after considering the

escape risk by two Defendants charged with serious crimes

and considering all of the various options (including limiting

or increasing the number of deputies in the courtroom), the

court concluded that the leg braces were proper to ensure the

safety of the jurors, court staff, and everyone in the

courtroom. While Hedlund could have helped facilitate

concealment of the leg brace, the court noted that the leg

brace did not “overwhelm” the jury to cause them to convict

Hedlund on all charges.

3

Although the leg restraint was intended to be invisible, the record

demonstrates that it was in fact visible to the jury. Indeed, Respondent

conceded visibility at oral argument. Insofar as the restraints were visible,

however, the trial court found Hedlund largely to blame. In particular, it

found that “had [he] chosen to do so, [Hedlund] could have facilitated the

concealment of the leg brace by keeping [his] pants pulled down, and [his]

legs back from the front of the desk.”

HEDLUND V. RYAN 13

On direct appeal, the Arizona Supreme Court credited the

trial court’s record of security concerns, noting that “Hedlund

attempted an escape during the summer of 1991 and also

made plans with another capital defendant to escape by

attacking a guard and taking his uniform and gun.”4 The

court concluded that the leg restraint was not an abuse of

discretion, given the trial judge’s well-founded security

concerns and the absence of specific prejudice to Hedlund.

On habeas review, the federal district court noted that the

Arizona Supreme Court erroneously attributed the 1991

escape attempt to Hedlund. However, the district court found

no indication, let alone clear and convincing evidence, that

the state court erred in finding both Hedlund and McKinney

involved in the 1992 escape plot.

B. Hedlund’s leg restraint was not imposed based on a

clearly unreasonable determination of the facts, nor

was its imposition contrary to, or an unreasonable

application of, clearly established federal law.

1. Standard of Review

As an initial matter, Hedlund argues that we should

review this claim de novo because the Arizona Supreme

Court erroneously attributed McKinney’s 1991 escape

attempt to Hedlund. While the Arizona Supreme Court’s

recitation of that fact is in error, as the federal district court

correctly recognized, there is no indication that the trial court

or the Arizona Supreme Court on direct review erred in

4

As fully discussed below, this recitation of the facts is in error. The

record shows that it was McKinney, not Hedlund, who attempted an

escape in 1991.

14 HEDLUND V. RYAN

concluding that Hedlund was involved in the 1992 escape

plot with McKinney. The trial court presumed that Hedlund

was the other capital inmate plotting an escape with

McKinney in 1992. Hedlund has not shown that this

presumption was an unreasonable determination of the facts.

Nor has he rebutted this factual determination with clear and

convincing evidence.

Deputy Lane testified that an inmate (who knew

McKinney) overheard McKinney plotting with another

capital defendant. While the inmate-informant did not know

Hedlund by name, jail security personnel drew the inference

that the unnamed capital defendant was Hedlund. Jail

security personnel then acted upon this tip by noting the

security risk on Hedlund’s jail card. Thus, when the Arizona

Supreme Court stated that Hedlund made plans with another

capital defendant (i.e., McKinney) to escape, this was neither

factually erroneous nor objectively unreasonable based on

Deputy Lane’s testimony.5

2. An essential state interest justified the leg

restraint.

The Arizona Supreme Court’s decision affirming the use

of the leg brace was not contrary to, or an unreasonable

application of, clearly established federal law. Ordering the

leg brace was justified by an essential state interest. The

Supreme Court has defined shackling as “the sort of

inherently prejudicial practice that . . . should be permitted

5

Even if we assume that the Arizona Supreme Court’s erroneous factual

statement (mis-attributing the 1991 escape attempt to Hedlund) is enough

to call into question the entirety of the factual findings regarding

shackling, conducting de novo review would not change the outcome.

HEDLUND V. RYAN 15

only where justified by an essential state interest specific to

each trial.”6 Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)

(emphasis added). This determination turns on the facts of

the case. Where an obstreperous defendant’s actions threaten

the proceedings, even fully binding and gagging the

defendant could be constitutionally permissible. Illinois v.

Allen, 397 U.S. 337, 344 (1970).

Here, the trial court found that Hedlund posed a security

risk, thus warranting the minimally intrusive restraint. The

trial court based this finding on the alleged 1992 escape plot

involving both Defendants, the nature of the charges, and the

safety of all persons in the courtroom during trial. The trial

court’s conclusion, that specific security interests presented

by the facts of this case warranted the leg restraint, cannot be

said to be contrary to, or an unreasonable application of,

Holbrook (i.e., whether an essential state interest justified the

use of a leg brace in this case). Holbrook, 475 U.S. at 569.

See also Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir.

1989) (“Shackling is proper where there is a serious threat of

escape or danger to those in and around the courtroom, or

6

Where the decision to physically restrain a defendant violates due

process, on habeas review, a petitioner must show that the error had

“substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal

quotation marks omitted). “To determine whether the imposition of

physical restraints constitutes prejudicial error, we have considered the

appearance and visibility of the restraining device, the nature of the crime

with which the defendant was charged and the strength of the state’s

evidence against the defendant.” Larson v. Palmateer, 515 F.3d 1057,

1064 (9th Cir. 2008) (emphasis added). However, we have also

recognized that this multi-factor test is not clearly established federal law.

Walker v. Martel, 709 F.3d 925, 938 (9th Cir. 2013). In any event,

because we find that the use of a leg restraint did not violate due process,

we do not reach the issue of prejudice.

16 HEDLUND V. RYAN

where disruption in the courtroom is likely if the defendant is

not restrained.”); Crittenden v. Ayers, 624 F.3d 943, 971 (9th

Cir. 2010) (defendant failed to rebut “by clear and convincing

evidence the trial court’s finding on the record that the

restraints were justified by a state interest specific to

Crittenden’s trial, namely his likelihood of escape or

‘nonconforming conduct.’”).

The record shows that jail personnel became aware of the

1992 escape plan after a tip from another inmate. While the

inmate knew McKinney’s name, the inmate knew only that

the co-plotter was another inmate charged with capital

murder. Jail personnel then reviewed and acted upon this

information. We do not know how jail personnel made the

inference that the second inmate was Hedlund (e.g., whether

Hedlund was the only other capital murder defendant who

had been talking to McKinney, or was the only capital murder

defendant housed in close proximity to McKinney).

However, we do know that, after learning of the plot, jail

personnel applied special security procedures to both

Defendants and provided this information to the trial court.

While the trial court based its conclusion regarding the

escape plot on information provided by jail personnel, the

trial court’s reliance on this testimony was not contrary to, or

an unreasonable application of, clearly established federal

law. The trial court could have used the jail’s security-based

decision as support for its conclusion that Hedlund posed an

escape risk, because such decisions are subjective and

discretionary. Cf. Rhodes v. Chapman, 452 U.S. 337, 350

n.14 (1981) (“[A] prison’s internal security is peculiarly a

matter normally left to the discretion of prison

administrators.”).

HEDLUND V. RYAN 17

The trial court relied on Deputy Lane’s assertion and

concluded as follows:

I have been provided with what I have

weighed and considered as reasonably reliable

evidence that there is indeed a real escape risk

in this case; perhaps not in the courtroom, but

one that has been articulated outside the

hearing of the Court in a fashion that indicates

that both defendants were anticipated to be

involved in it. . . . [There was] certainly some

thought being given on the nature and mode

of escape.

Although the trial court based this decision on hearsay

coming from within the jail, there is no clearly established

federal law suggesting that such a finding is impermissible.

Challenging the trial court’s reliance upon such hearsay,

Hedlund cites Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.

2003). However, Gonzalez is inapplicable to this case. First,

Gonzalez applies the “less restrictive alternatives” test that

was not clearly established federal law for AEDPA purposes.

See Crittenden, 624 F.3d at 971–72 (recognizing that “case

law requiring a court to weigh the benefits and burdens of

shackling and pursue less restrictive alternatives was not

clearly established federal law” before Deck v. Missouri,

544 U.S. 622 (2005)). Second, while Gonzalez recognized

that the rules regarding physical restraints in California and

the Ninth Circuit are largely coextensive, id. at 902 n.1, the

language stating that a court may not rely upon “the

18 HEDLUND V. RYAN

unsubstantiated comments of others” is drawn from

California precedent, not clearly established federal law, id.

at 902 (quoting People v. Mar, 52 P.3d 95, 107 (Cal. 2002)).

It was not objectively unreasonable for the Arizona

Supreme Court to find an essential state interest based on

Lane’s testimony regarding the 1992 Hedlund/McKinney

escape attempt. Therefore, upholding the decision to impose

the leg brace was not contrary to, or an unreasonable

application of, clearly established federal law.

3. Prejudice

Because the Arizona Supreme Court’s adoption of the

finding that Hedlund’s leg brace was justified by an essential

state interest is not contrary to, or an unreasonable application

of, Holbrook, we do not reach the question of prejudice.

II. Use of Dual Juries

A. Background and procedural history

Over the Defendants’ and prosecutor’s objections, the

trial court ordered the Defendants’ cases tried before dual

juries. The trial court reasoned that two trials would cause

needless duplication, the victims’ families would suffer twice,

and the only evidence that was not admissible to both juries

HEDLUND V. RYAN 19

could be covered in a single afternoon.7 The court set forth

detailed procedures to be used at trial to avoid any problems.8

Hedlund challenged the use of dual juries in a special

action to the Arizona Court of Appeals. See Hedlund v.

Sheldon, 840 P.2d 1008, 1009 (Ariz. Ct. App. 1992). The

court of appeals reversed, holding that the trial court

exceeded its authority under the Arizona Rules of Criminal

Procedure and the Arizona Supreme Court’s decision in State

v. Lambright. Id. However, the Arizona Supreme Court

7

The court arranged for this evidence to be heard separately to avoid a

possible Bruton v. United States, 391 U.S. 123 (1968), violation. In

Bruton, during a joint trial, the trial court instructed the jury that a

codefendant’s confession inculpating both the codefendant and the

defendant could be used only against the codefendant, and should be

disregarded with respect to the defendant. 391 U.S. at 124–25. Where the

jury was allowed to consider the codefendant’s confession, the Supreme

Court found that the confession “added substantial, perhaps even critical,

weight to the Government’s case in a form not subject to cross-

examination, since [the codefendant] did not take the stand. [The

defendant] thus was denied his constitutional right of confrontation.” Id.

at 128. The Court recognized that “[t]he unreliability of [inculpatory

statements by a codefendant] is intolerably compounded when the alleged

accomplice, as here, does not testify and cannot be tested by

cross-examination.” Id. at 136. The Court concluded that “in the context

of a joint trial we cannot accept limiting instructions as an adequate

substitute for petitioner’s constitutional right of cross-examination.” Id.

at 137.

8

Those procedures included separate voir dire of the jury panels, a

courtroom layout that allowed both Defendants full view of the jurors and

witnesses, separate preliminary instructions, separate opening statements,

separate reading of the charges, special procedures for handling

codefendant inculpatory statements, separate closing statements, and

special procedures for the return of the verdicts.

20 HEDLUND V. RYAN

reversed the court of appeals,9 concluding that the decision to

empanel a dual jury is an “exercise of an individual judge’s

discretion to use a particular technique in order to meet a

specific problem in a single case.” Id. at 1011 (internal

quotation marks omitted). Thus, the court affirmed the

decision to impanel dual juries.

Post-trial, the trial court rejected Hedlund’s renewed dual

jury challenge. The court found that it had eliminated the risk

of possible prejudice by empaneling dual juries rather than

having one jury consider both Defendants’ guilt. The court

concluded that this strategy worked, because the verdicts

reflected that the juries were able to do their jobs

intelligently.

B. The use of dual juries at trial was not contrary to, or

an unreasonable application of, clearly established

federal law.

Because Hedlund cannot point to clearly established

federal law governing this claim, habeas relief is unavailable.

The Supreme Court has not spoken on the issue of dual juries,

and Hedlund cites no relevant authority.

In Zafiro v. United States, 506 U.S. 534, 538–39 (1993),

the Court held that severance is not required in the face of

antagonistic defenses. Even where prejudice is shown, Rule

14 of the Federal Rules of Criminal Procedure “leaves the

tailoring of the relief to be granted, if any, to the district

court’s sound discretion.” Id. The Court went on to say that

9

At the same time, the supreme court also reversed its earlier decision

in State v. Lambright, 673 P.2d 1 (Ariz. 1983), cert. denied, 469 U.S. 892

(1984), which had found that the use of dual juries violated state law.

HEDLUND V. RYAN 21

severance should be granted “only if there is a serious risk

that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” Id. at 539.

Hedlund argues that this claim is valid, because certain of

his specific trial rights were violated. While Zafiro holds that

severance should be granted if there were a serious risk that

a specific trial right would be compromised, Zafiro does not

apply to § 2254 cases. Zafiro was a direct-appeal case

originating in federal district court (i.e., a case in which the

Federal Rules of Criminal Procedure applied). See Collins v.

Runnels, 603 F.3d 1127, 1131–32 (9th Cir. 2010) (“By its

own wording, Zafiro only applies to federal and not state

court trials. It analyzes only the Federal Rules of Criminal

Procedure applicable to federal district courts.”), cert. denied,

131 S. Ct. 243 (2010).

Even if we could apply Zafiro’s prejudice holding,

Hedlund has not identified any specific constitutional right

that has been violated. While he alludes to several

constitutional violations, none of these arguments is well

developed with citation to authority. To the extent Hedlund

argues that the prosecutor was improperly allowed to ask

leading questions or elicit ambiguous testimony, he does not

cite specific examples. Moreover, defense counsel had the

opportunity to object at trial and did so. Although some

objections were overruled, it is not clear the subject questions

were leading or ambiguous, and if so, whether these

evidentiary rulings were improper or harmed Hedlund in any

way.

Even if ambiguous testimony or leading questions could

somehow amount to a constitutional violation, the testimony

22 HEDLUND V. RYAN

did not prevent Hedlund from demonstrating lack of motive

or putting on a full defense. The jury heard testimony that

Hedlund had a steady job and did not need to steal for money,

and Lemon and Morris testified that Hedlund wanted nothing

to do with the early burglaries.

Hedlund’s antagonistic defenses argument similarly fails.

There is no constitutional right to severance merely because

codefendants point the finger at each other. Moreover, the

trial court’s remedy of employing procedural safeguards for

the use of dual juries was within its discretion. Because none

of Hedlund’s dual jury arguments demonstrate prejudice that

is so “clear, manifest or undue that he was denied a fair trial,”

even if Zafiro applied, this claim fails. See Lambright v.

Stewart, 191 F.3d 1181, 1185–87 (9th Cir. 1999) (dual juries

are permissible in capital cases so long as they comport with

Due Process; denial of a motion to sever for antagonistic

defenses not reversible without a showing of clear prejudice).

III. Juror Bias

A. Background and procedural history

On the second day of trial, one juror (“the Juror”) wrote

a letter to the trial court disclosing the fact that she discovered

she was distantly related to McClain, the second murder

victim. In the letter, the Juror explained that she had become

aware of this fact only that morning. When the Juror

informed her mother she was serving on a jury, her mother

stated that “she had read of a trial starting in Mesa in which

one of the victims had been married to a cousin of [the

juror’s] stepfather.” The Juror told her mother she could not

discuss the trial and did not want to hear anything further.

However, the Juror realized she would have to disclose this

HEDLUND V. RYAN 23

to the judge, so she asked her mother the name of the victim

who was married to the stepfather’s cousin. The Juror stated

that she didn’t personally recognize the name of the victim

and had “never met, nor even heard of, [her] stepfather’s

cousin, who is deceased.” She then concluded with the

following statement regarding her ability to serve on the jury:

“I don’t believe it would affect my ability to be fair and

impartial, but I do not wish to compromise the proceedings in

any way, so I wish to make the court aware of the situation.”

In response to the letter, the trial court held a hearing in

chambers to explore whether the Juror should remain on the

jury. The court read the Juror’s statement about impartiality

back to her and asked if this were her belief. She responded,

“Yes, it is.” In response to the court’s questions, the Juror

explained that she had never met her stepfather’s now

deceased cousin who used to be married to McClain. In fact,

until the conversation with her mother, she didn’t even know

the cousin existed. Hedlund’s counsel inquired about the

Juror’s relationship with her stepfather. The Juror explained

that they “have a very superficial relationship.”

Hedlund’s counsel moved to strike the Juror for cause on

the basis that she was a distant relative of the victim. The

court stated, “given what she said here today I would not,

based on what I’ve heard . . . have stricken her for cause. . . .

She is now on the jury. And based on the circumstances she

has relayed to me, I’m going to deny the motion. She’ll

remain on the panel.”

On appeal, the Arizona Supreme Court affirmed, finding

that nothing in the record suggested the Juror was untruthful

in stating she could be fair and impartial. The federal district

court agreed. The district court found no risk of “substantial

24 HEDLUND V. RYAN

emotional involvement based on [the Juror’s] highly

attenuated connection with the victim, about which the

[J]uror was not even aware . . . .”

B. The trial court complied with clearly established

federal law when it determined no juror bias was

present.

1. Hedlund has failed to prove actual bias.

Because the trial court followed clearly established

federal law regarding actual juror bias, Hedlund’s claim fails

on this theory. In Remmer v. United States, the Supreme

Court held that juror bias should be determined “in a hearing

with all interested parties permitted to participate.” 347 U.S.

227, 229–30 (1954). In Smith v. Phillips, the Supreme Court

reversed a grant of habeas where the lower federal courts

found insufficient a hearing to determine juror bias. 455 U.S.

209, 214–16, 221 (1982). During the Smith trial, one of the

jurors applied for a job as an investigator with the DA’s

office. Id. at 212. The prosecutors were aware of the

application, but did not tell the court or defense counsel until

after the jury returned its verdict. Id. at 212–13. Upon

learning of the juror’s job application, the defendant moved

to set aside the verdict. Id. at 213. The trial court held a

hearing on this motion, at which both the prosecutors and the

juror testified. Id. After the hearing, the trial court found that

the juror was not biased as a result of his job application to

the DA; and no evidence suggested a “sinister or dishonest

motive” on the prosecutors’ part. Id. at 214. On habeas

appeal, the federal district court found the trial court’s bias

hearing insufficient and granted relief, which the Second

Circuit affirmed.

HEDLUND V. RYAN 25

The Supreme Court reversed the lower federal courts,

finding that the trial court’s hearing (exploring the issue of

juror bias) was sufficient to comply with due process. Id. at

221. The Court reiterated that it “has long held that the

remedy for allegations of juror partiality is a hearing in which

the defendant has the opportunity to prove actual bias.” Id.

at 215. The Court rejected the argument that a trial court

“cannot possibly ascertain the impartiality of a juror by

relying solely upon the testimony of the juror in question.”

Id. The Court disagreed that “the law must impute bias to

jurors” in this situation. Id. Rather than ordering a new trial

any time the issue of juror bias arises, the Court explained

that holding a hearing to determine actual bias, such as that

conducted by the trial court, is the appropriate course of

action. Id. at 217.

The Smith court concluded:

[D]ue process does not require a new trial

every time a juror has been placed in a

potentially compromising situation. Were that

the rule, few trials would be constitutionally

acceptable. The safeguards of juror

impartiality, such as voir dire and protective

instructions from the trial judge, are not

infallible; it is virtually impossible to shield

jurors from every contact or influence that

might theoretically affect their vote. Due

process means a jury capable and willing to

decide the case solely on the evidence before

it, and a trial judge ever watchful to prevent

prejudicial occurrences and to determine the

effect of such occurrences when they happen.

Such determinations may properly be made at

26 HEDLUND V. RYAN

a hearing like that ordered in Remmer and

held in this case.

Id. (footnote omitted).

The Court recognized that hearings of this sort will

“frequently turn upon testimony of the juror in question,” but

rejected the contention that “such evidence is inherently

suspect.” Id. at 217 n.7. When a juror tries “as an honest

man to live up to the sanctity of his oath[, the juror] is well

qualified to say whether he has an unbiased mind in a certain

matter.” Id. Lastly, the Court reiterated that, because this

case was a § 2254 proceeding, the trial judge’s findings are

“presumptively correct” and cannot be overcome without

clear and convincing evidence. Id. at 218.

The Arizona Supreme Court’s finding that the trial court

did not abuse its discretion in refusing to dismiss the Juror

was not contrary to, nor an unreasonable application of, Smith

and Remmer. The trial judge conducted a hearing involving

all interested parties to explore the issue of juror bias. At this

hearing, Hedlund had the opportunity to prove actual bias.

This is the remedy prescribed by the Supreme Court. Smith,

455 U.S. at 215.

Hedlund challenges the sufficiency of the in-chambers

hearing, arguing that the hearing was cursory, defense

counsel was not given time to prepare, and it was the judge’s

duty to question the Juror sufficiently. Hedlund argues that

defense counsel could not be expected to conduct a vigorous

cross-examination that might place Hedlund in a negative

light. However, Smith does not dictate that an in-chambers

hearing is insufficient, must be of a particular length, or must

be conducted only after certain notice. Id.; see also Dyer v.

HEDLUND V. RYAN 27

Calderon, 151 F.3d 970, 974–75 (9th Cir. 1998) (“An

informal in camera hearing may be adequate for this purpose;

due process requires only that all parties be represented, and

that the investigation be reasonably calculated to resolve the

doubts raised about the juror’s impartiality.”). Here, the trial

court questioned the Juror about her ability to be impartial, it

did not rush defense counsel as counsel familiarized himself

with the Juror’s letter, and it followed up with additional

questions. Based on the Juror’s responses that she was

unaware of both her stepfather’s now-deceased cousin and the

victim, her relationship with her stepfather was superficial,

and her belief was that she could remain impartial, the court

was satisfied that no actual bias was present. As the Ninth

Circuit explained in Calderon: “So long as the fact-finding

process is objective and reasonably explores the issues

presented, the state trial judge’s findings based on that

investigation are entitled to a presumption of correctness.”

Id. at 975. Thus, the court complied with clearly established

federal law.

Although the Juror stated that she “believed” she could be

impartial, she did not equivocate and the judge found this

affirmation sufficient. Hedlund points to no authority

requiring more of an assurance from the Juror. See Bashor v.

Risley, 730 F.2d 1228, 1237 (9th Cir. 1984) (no error in

keeping juror when juror responded to question of whether

she could be impartial with “Yes, I think I could.”).10

10

Citing United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000),

Hedlund argues that the Juror’s statement was “somewhat equivocal.” In

Gonzalez, the Ninth Circuit noted the difference between a juror who is

somewhat indirect in their responses (Q: Would your husband’s

experience keep you from serving impartially? A: “I don’t believe so,

no.”; Q: Could you set aside your feelings and act impartially? A: “I

believe so, yes.”), and a juror who answers equivocally three times in a

28 HEDLUND V. RYAN

2. There is no clearly established law governing

implied bias, and Hedlund has not shown that

implied bias should apply here.

There is no clearly established federal law regarding the

issue of implied bias. The Supreme Court has never

explicitly adopted or rejected the doctrine of implied bias.

See Fields v. Woodford, 309 F.3d 1095, 1104 (9th Cir. 2002)

(noting the fact that the “Supreme Court has never explicitly

adopted (or rejected) the doctrine of implied bias”), amended

on other grounds, 315 F.3d 1062 (9th Cir. 2002). Thus,

Hedlund’s claim fails on grounds of implied bias.11

row to whether she could be fair (“I will try to”; “Right. I’ll try”; and “I’ll

try”). Id. The court recognized that it would be acceptable to retain the

first juror, because after stating her belief, the juror followed up with “an

unqualified affirmative or negative” regarding impartiality. Id. The same

can be said for the Juror. In her letter, she initially stated “I don’t believe

it would affect my ability to be fair and impartial,” then when questioned

by the trial court, she added “an unqualified affirmative” when she was

asked to confirm her belief that she could be impartial (Q: “You state here

at the end that, ‘I don’t believe it would affect my ability to be fair and

impartial.’ Is that your belief?” A: “Yes, it is.”). While the trial court

asked the question somewhat inartfully, the Juror’s response does not

display equivocation. Moreover, the trial court credited her response after

asking further questions, observing her demeanor, and judging her

credibility. This finding is entitled to a presumption of correctness.

Rushen, 464 U.S. at 120.

11

Although not controlling, Justice O’Connor’s concurrence in Smith

expressed concern about cases involving juror misconduct. Therein, she

listed certain “extreme situations” in which she believed a bias hearing

may be inadequate and implied bias could be found. Examples may

include: “a revelation that the juror is an actual employee of the

prosecuting agency, that the juror is a close relative of one of the

participants in the trial or the criminal transaction, or that the juror was a

witness or somehow involved in the criminal transaction.” Smith,

455 U.S. at 222 (O’Connor, J., concurring) (emphasis added). Because

HEDLUND V. RYAN 29

Although the Ninth Circuit has presumed bias on a rare

occasion, it has based this finding on close relationships or

the fact that a juror has lied. See, e.g., United States v. Allsup,

566 F.2d 68, 71–72 (9th Cir. 1977) (bias of bank teller

employees presumed where defendant robbed another branch

of same bank and tellers had “reasonable apprehension of

violence by bank robbers”); Green v. White, 232 F.3d 671,

676–78 (9th Cir. 2000) (presuming bias biased on juror’s

pattern of lies). However, these cases are not clearly

established federal law. In any event, nothing in the record

suggests the Juror lied during voir dire or had a close

relationship with McClain.

she read the majority opinion as not foreclosing the use of implied bias in

certain situations, Justice O’Connor concurred. Id. at 224.

Even if this concurrence could be construed as clearly established

federal law, the notion that implied bias could be found when a juror is a

close relative does not lead to the conclusion that implied bias should be

found when the juror is a former distant relative by virtue of two

marriages, one now dissolved and the former relative now deceased.

Moreover, Hedlund does not allege juror misconduct in this case. The

Juror was forthcoming as soon as she found out about the former relation

and there is no indication she tried to conceal bias to influence the

outcome of the trial.

30 HEDLUND V. RYAN

IV. Ineffective Assistance of Counsel during Plea

Process12

A. Background and procedural history

Before trial, Hedlund reached a plea deal with the

prosecutor. During an informal chambers discussion, defense

counsel and the prosecutor were asked to explain the factual

basis for the plea, which offered a guilty plea for the second

degree murder of Mertens and theft with a prior for taking

McClain’s guns. The trial court rejected the plea agreement,

because it did not involve enough accountability for the

McClain homicide. The court suggested a plea involving a

burglary count with respect to McClain could be considered.

However, as discussed below, the court had other reservations

with respect to this and any future plea agreement. The

parties continued negotiating and reportedly arrived at a

second agreement consisting of a guilty plea for the second

degree murder of Mertens, and theft with a prior and burglary

non-dangerous with respect to McClain.

On the day the second plea was to be presented in

chambers, Hedlund’s counsel instead called chambers and

asked the judge if he would recuse himself. When the judge

responded that he would not, Hedlund filed a motion for

recusal of judge, followed by a motion for change of judge.

A second judge heard the latter motion. The motion made

clear that Hedlund wanted to plead guilty to the new plea

agreement, but that he refused to do so in front of the trial

12

The district court declined to grant a COA on this issue. However,

because we conclude that the district court’s resolution of the issue is

“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003), we address it.

HEDLUND V. RYAN 31

judge, Judge Sheldon. The second judge denied the motion

and trial began immediately. The substance of the motion

hearing is discussed below in the context of the ineffective

assistance of counsel analysis.

On appeal, the Arizona Supreme Court questioned

whether a second plea was ever reached. The court also

noted that the prosecutor’s testimony at the hearing on the

change-of-judge motion was that Hedlund in fact rejected the

second plea. Thus, the court rejected the claim that the trial

court erred in any way with respect to the purported second

plea. The claim challenging counsel’s performance was

similarly rejected on PCR review.

B. The state PCR court did not unreasonably apply

Strickland.

The two-part test for demonstrating ineffective assistance

of counsel, set forth in Strickland v. Washington, 466 U.S.

688 (1984), is also “applicable to ineffective-assistance

claims arising out of the plea process.” Hill v. Lockhart,

474 U.S. 52, 57 (1985). We must first ask whether

“counsel’s assistance was reasonable considering all the

circumstances.” Strickland, 466 U.S. at 688. Counsel must

have “wide latitude . . . in making tactical decisions,” and

“[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. We “must indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. In the

context of that presumption, we “must then determine

whether, in light of all the circumstances, the identified acts

or omissions were outside the wide range of professionally

competent assistance.” Id. at 690.

32 HEDLUND V. RYAN

Second, if counsel’s performance were deficient, we

assess prejudice. Prejudice “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome

of the plea process.” Hill, 474 U.S. at 59. “In other words,

in order to satisfy the ‘prejudice’ requirement, the defendant

must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Id. (footnote omitted).

Under AEDPA, review of the state court’s application of

Strickland is “doubly deferential” to the performance of

counsel, because a petitioner must show that the state court’s

ruling was an objectively unreasonable application of

Strickland. 28 U.S.C. § 2254(d)(1); see also Bell v. Cone,

535 U.S. 685, 698–99 (2002); Knowles v. Mirzayance, 129 S.

Ct. 1411, 1420 (2009).

1. It was not objectively unreasonable for the state

PCR court to conclude that counsel’s performance

was not deficient.

The state court did not unreasonably apply Strickland.

Because Hedlund has not shown that his counsel performed

deficiently in making the tactical decision to attempt to move

Hedlund’s plea proceedings before a different judge, relief is

unavailable. Hedlund’s arguments that counsel failed to

present the second plea in a timely manner and that there was

a reasonable probability that the trial judge would have

accepted that plea are not supported by the record.13

13

As an initial matter, it is not clear that the second offer was still valid

at the time in question. According to the prosecutor, Hedlund rejected the

second plea offer two days before defense counsel called chambers and

asked the judge to recuse himself.

HEDLUND V. RYAN 33

First, on the day both counsel were supposed to appear in

chambers to discuss the second plea agreement, Hedlund’s

counsel called the court to ask informally whether the judge

would recuse himself. Counsel explained that “Mr. Hedlund

would be willing to enter into a plea agreement but not in

front of Judge Sheldon.” The judge’s assistant responded that

the judge would not recuse himself and since counsel did not

appear that day as required, the court would no longer

entertain further plea agreements. Based on Judge Sheldon’s

response, Hedlund’s counsel filed a motion for change of

judge for cause in which he challenged “the bias exhibited by

the court with regard to Mr. Hedlund.” In the motion,

counsel explained:

Hedlund is willing to enter into [the second]

plea agreement in any court other than

this court. Defendant Hedlund feels that this

court has become biased against him.

He feels that he will not be offered a realistic

opportunity to persuade this court at the

time of sentencing that any sentence other

than the maximum consecutive sentence is

appropriate. This feeling is based, in part, on

the court’s sua sponte decision to empanel

dual juries, the denial of all substantive

pretrial motions filed by the defense and the

court’s demeanor leading up to trial. . . . The

court’s failure to recuse itself would be

tantamount to forcing the death penalty upon

defendant Hedlund. As the court is aware,

there is a significant amount of evidence

against Mr. Hedlund in these cases. It is Mr.

Hedlund’s purpose to avoid the death peanlty

in this case.

34 HEDLUND V. RYAN

At the motion hearing before another judge, Judge

Sheldon testified regarding his concerns with the first plea

agreement and the fact that a second plea agreement was

never formally offered. When Hedlund’s counsel examined

Judge Sheldon, Judge Sheldon also explained that (1) he was

concerned about the plea being commensurate with

culpability, (2) he took into account victim letters received

from McClain’s family, and (3) continuing the plea process

when a plausible plea was not on the table would only waste

time and thwart the arrangements for a single trial with dual

juries.

In his closing remarks, defense counsel argued why he

thought Judge Sheldon was biased and why it would result in

an unfair trial for Hedlund. With respect to the plea process,

counsel highlighted the fact that Hedlund refused to plead

before Judge Sheldon. Specifically, counsel stated that

Hedlund

would be willing to enter into a plea but not in

front of that Court [Judge Sheldon]. He

would be willing to enter it in front of any

other Court and this is again, a plea Judge

Sheldon would most likely have been

amenable to, but Mr. Hedlund felt he would

not get a fair shake and still the Court said, no,

we will not recuse ourselves so let justice be

done.

Counsel concluded with an impassioned argument about the

justice system and the importance of maintaining the

community perception of fairness to victims and defendants

alike. Counsel pleaded he was not asking for a handout, but

“[w]hat he [was] asking on behalf of [Hedlund] is fairness,

HEDLUND V. RYAN 35

the ability to be heard before a Court without the appearance

of impropriety.”

In rebuttal, counsel argued that, when you put all of the

things Judge Sheldon did together, “it is enough for

[Hedlund] and I to believe for the community to say, hold it,

he is not getting a fair shake. There is the appearance of

impropriety in reading those [victim] letters at that time and

not giving him the benefit of a presentence report.” Counsel

argued that the letters were not merely victim letters, but ex

parte communications from state witnesses who also

happened to be victims. Counsel reiterated that rejection of

the plea to facilitate moving forward with the dual jury

procedure was also improper.

This record demonstrates that counsel’s motion to have

Hedlund’s case moved before a different judge was purely a

tactical decision.14 Counsel apparently honestly believed that

Hedlund could not get a “fair shake” in front of Judge

Sheldon. Even though counsel believed Judge Sheldon was

likely to accept the second plea, counsel persisted with the

request. He persisted, because he thought Hedlund faced an

undue risk of bias and would surely receive a death sentence

from Judge Sheldon if the second plea agreement were not

accepted and the case proceeded to trial. Counsel’s written

motion and arguments made clear that it was Hedlund’s

primary goal at this point to avoid the death penalty. We

must give deference to counsel’s tactical decision to do

whatever he could to put his client in front of a non-biased

judge (who was not pre-inclined to sentence Hedlund to

14

With respect to preserving the plea in the record, counsel set forth the

terms of the plea in his written motion and explained the terms of the plea

at the motion hearing.

36 HEDLUND V. RYAN

death). It was not error for the state PCR court to conclude

that counsel’s performance was not deficient. Indeed,

counsel made strong arguments about the judge having ex

parte communication with the state’s witnesses (who were

also victims) and gave many reasons for wanting the case

moved before another judge.

Hedlund’s and the dissent’s argument that counsel missed

the deadline for the second plea agreement is a red herring.

At base, this argument again challenges counsel’s tactical

decision. On the day defense counsel and the prosecutor

were supposed to appear in chambers to discuss the second

plea agreement, counsel instead put the wheels of recusal in

motion.15 He called chambers requesting recusal. When the

judge declined, he proceeded with a formal motion to have

the recusal motion heard before another judge so that the plea

process could continue in front of an unbiased jurist and

without the dual jury deadline hanging over his head. This

too was a tactical decision; it was not an act of incompetency.

15

The dissent criticizes defense counsel’s failure to pursue

simultaneously the plea negotiations before Judge Sheldon and the recusal

motion. However, this criticism ignores defense counsel’s rationale in

seeking recusal.

In his motion to recuse, defense counsel stated that “Hedlund and the

State have come to a [sic] agreement which is within the range suggested

by the court” and that “Hedlund is willing to enter into this plea

agreement in any other court than this court.” (emphasis added). Having

procured a tentative plea agreement that would allow Hedlund to avoid

death, defense counsel decided to withdraw from plea negotiations before

Judge Sheldon (where Hedlund refused to enter the plea agreement) and

tried to move the plea negotiations to another court (where Hedlund would

enter the plea agreement). Defense counsel’s decision not to pursue plea

negotiations in a court where his client refused to enter a plea agreement

does not fall below Strickland’s deferential standard.

HEDLUND V. RYAN 37

Because counsel’s performance did not fall outside of the

wide range of professionally competent advice, the state

courts did not unreasonably apply the first prong of

Strickland.

2. No prejudice has been shown.

Even assuming the state PCR’s court’s application of

Strickland was objectively unreasonable, Hedlund has not

shown a reasonable probability that, but for counsel’s errors,

Hedlund would not have gone to trial. In other words, the

record does not demonstrate that, if counsel would have

presented the second plea agreement to Judge Sheldon

(instead of calling chambers to ask for recusal), there is a

reasonable probability Judge Sheldon would have accepted

the agreement and Hedlund would have avoided the death

penalty. See Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012)

(“In these circumstances a defendant must show that but for

the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to

the court . . . , that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment

and sentence that in fact were imposed.”).

Although Hedlund argues that the second plea with

respect to the McClain homicide would have complied with

the range of acceptable penalties to which the trial court

would have agreed, it is unlikely that the court would have

accepted the plea as to either the Mertens or the McClain

crimes.

First, with respect to the McClain homicide, while Judge

Sheldon had indicated that first degree burglary would be a

38 HEDLUND V. RYAN

starting point, “[a]t that point, [Judge Sheldon] had not made

up [his] mind whether or not that would be an appropriate

disposition because [he] still . . . continued to have serious

reservations about the disposition of this case given the

charges against [Hedlund] . . . .” Judge Sheldon testified with

respect to the first plea agreement, “Quite frankly, I was very

surprised there had not been a plea to First Degree Murder

with the State stipulating it would not seek the death penalty,

and I was surprised there had been a plea to Second Degree

Murder and I think from what I gathered in [defense

counsel’s] conversations, that [counsel] shared my

reservations about being able to establish a factual basis for

Second Degree Murder to a Felony Murder charge because

the law is quite clear, there are no lesser included offenses to

Felony Murder.” Based on the court’s statements, this plea

would not have provided sufficient accountability for the

McClain homicide. There is nothing else in the record

suggesting a reasonable probability that the court would have

accepted the new offer of a plea to theft with a prior and

burglary non-dangerous with respect to McClain.

Second, with respect to Mertens, during the hearing on

the change-of-judge motion, Judge Sheldon testified that,

after reviewing the first plea agreement, he “continue[d] to

have reservations about [the second degree murder plea for

the Mertens homicide] and as I indicated to [defense counsel],

at the conclusion of that hearing, that I was – [defense

counsel] had indicated to me apparently [he] and [the

prosecutor] were going to continue plea negotiations or try

and work something out.” Judge Sheldon further testified

that he “continued to have reservations as you all did in

stating to me you weren’t sure whether or not a plea to

Second Degree Murder, you would be able to establish a

factual basis, so there were reservations . . . between all

HEDLUND V. RYAN 39

parties at that point.” With respect to the first plea

agreement, even after the parties recited a factual basis for

second degree murder, the court’s concerns “were not

dispelled” as to whether the plea could be accepted for the

Mertens homicide. Again, there is nothing in the record to

suggest that the court’s concerns would have been dispelled

such that it would have accepted the second plea agreement’s

identical offer of second degree murder for the Mertens

crime.

Third, Judge Sheldon expressed concern about “disparate

treatment given to . . . co-defendants” and whether this would

create due process concerns under existing Supreme Court

precedent. Judge Sheldon also explained that, if it turned out

Hedlund was just as culpable or more culpable than

McKinney, he would have been allowed less severe

punishment under the plea agreement while McKinney faced

the death penalty. Counsel was given the opportunity to

explain during the informal plea discussion how Hedlund was

less culpable than McKinney, but the judge “simply did not

hear it.”

In sum, Judge Sheldon expressed (1) ongoing reservations

about even accepting a second degree murder plea for the

Mertens homicide, (2) concern that the plea reflect the

appropriate amount of culpability for the McClain homicide

(given the strong evidence against Hedlund), and (3) a desire

to avoid disparate sentences. Moreover, the record indicates

that Hedlund was not willing to enter a plea agreement in

front of Judge Sheldon. When defense counsel called Judge

Sheldon’s chambers asking the judge to recuse himself, the

explanation defense counsel provided was that “Hedlund

would be willing to enter into a plea agreement but not in

front of Judge Sheldon.” He provided the same explanation

40 HEDLUND V. RYAN

in his motion to recuse.16 On this record, it cannot be said

that, if Hedlund’s counsel had presented the second plea to

Judge Sheldon, there is a reasonable probability it would have

been accepted and the death penalty avoided. Thus, Hedlund

has failed to show prejudice.

V. Consideration of Mitigating Evidence under

Lockett/Eddings17

A. Background and procedural history

During the penalty phase of trial, the trial court found

evidence of Hedlund’s tortured childhood to be compelling

and credible. However, the court found that the mitigating

factors of Hedlund’s childhood abuse and long-term alcohol

use did not outweigh aggravating factors. The court reached

this conclusion because, at the time of the crime, these factors

did not affect Hedlund’s behavior or prevent him from

knowing right from wrong. The trial court thus sentenced

Hedlund to death.

When the Arizona Supreme Court conducted an

independent review of the mitigating factors, it struck one of

Hedlund’s aggravating factors and reweighed the remaining

aggravating factor against the mitigating evidence. The

16

These portions of the record belie the dissent’s contention that “there

is no evidence in the record that Hedlund himself did not want to enter a

plea in front of Judge Sheldon.”

17

The district court declined to grant a COA on this issue. However,

because we conclude that the district court’s resolution of the issue is

“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003), we address it.

HEDLUND V. RYAN 41

supreme court then found that the aggravating factor was not

overcome.

The federal district court also found that Hedlund’s trial

court fulfilled its duty to consider all of the mitigating

evidence and that it did not impose a relevancy test “or any

other barrier” to consideration of this evidence. The district

court concluded that no constitutional error arose when the

trial court assigned less weight to the family-background and

alcohol mitigating evidence because it did not influence

Hedlund’s criminal conduct.

B. The Arizona Supreme Court properly applied Lockett,

Eddings, and their progeny.

In Lockett v. Ohio, 438 U.S. 586 (1978), the Supreme

Court held that:

[T]he Eighth and Fourteenth Amendments

require that the sentencer . . . not be precluded

from considering, as a mitigating factor, any

aspect of a defendant’s character or record

and any of the circumstances of the offense

that the defendant proffers as a basis for a

sentence less than death. . . .

Given that the imposition of death by public

authority is . . . profoundly different from all

other penalties, . . . [the sentencer must be free

to give] independent mitigating weight to

aspects of the defendant’s character and

record and to circumstances of the offense

proffered in mitigation . . . .

42 HEDLUND V. RYAN

Id. at 604–05 (finding Ohio death penalty statute invalid

where it permitted consideration of only three mitigating

circumstances).

Later, in Eddings v. Oklahoma, the Supreme Court

applied Lockett in a case where the trial judge found he could

not consider in mitigation evidence of the defendant’s family

history.18 455 U.S. 104, 112–13 (1982). The appeals court

affirmed the trial court, finding that the mitigation evidence

was “not relevant because it did not tend to provide a legal

excuse” for responsibility for the crime. Id. The Supreme

Court reversed, explaining that,

[j]ust as the State may not by statute preclude

the sentencer from considering any mitigating

factor, neither may the sentencer refuse to

consider, as a matter of law, any relevant

mitigating evidence. . . . The sentencer . . .

may determine the weight to be given relevant

mitigating evidence. But they may not give it

no weight by excluding such evidence from

their consideration.

Id. at 113–15.19

18

In Eddings, the sentencing judge made clear, on the record, that he

could not consider certain evidence as a matter of law. He stated: “[T]he

Court cannot be persuaded entirely by the . . . fact that the youth was

sixteen years old when this heinous crime was committed. Nor can the

Court in following the law, in my opinion, consider the fact of this young

man’s violent background.” 455 U.S. at 109 (alteration in original).

19

The Court later explained that “Eddings makes clear that it is not

enough simply to allow the defendant to present mitigating evidence to the

sentencer. The sentencer must also be able to consider and give effect to

HEDLUND V. RYAN 43

In Tennard v. Dretke, the Supreme Court rejected a

“nexus test” that would find mitigating evidence relevant only

where it bears a causal nexus to the crime. 542 U.S. 274, 287

(2004) (“[W]e cannot countenance the suggestion that low IQ

evidence is not relevant mitigating evidence . . . unless the

defendant also establishes a nexus to the crime.”). Citing

Lockett/Eddings, the Court cautioned that the jury must be

given an effective vehicle with which to weigh mitigating

evidence so long as the defendant has met a “low threshold

for relevance,” which is satisfied by “evidence which tends

logically to prove or disprove some fact or circumstance

which a fact-finder could reasonably deem to have mitigating

value.” Id. at 284–85.

In Smith v. Texas, the Court again considered the use of

a nexus test to determine whether any mitigating evidence is

relevant. 543 U.S. 37, 45 (2004). The Court “unequivocally

rejected” any test requiring a causal nexus between mitigating

evidence and the crime. Id. We have held that Tennard and

Smith are retroactively applicable to decisions such as the

Arizona Supreme Court’s 1996 decision in this case. See

Schad v. Ryan, 671 F.3d 708, 723 (9th Cir. 2009) (per

curiam), cert. denied, 133 S. Ct. 432 (2012).

Thus, under federal law clearly established by the

Supreme Court, we review (1) whether the trial court

considered all relevant mitigating evidence, as required by

Lockett and Eddings; and (2) whether the Arizona Supreme

that evidence in imposing sentence.” Penry v. Lynaugh, 492 U.S. 302,

319 (1989) (internal quotation marks omitted), abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (holding that

executions of mentally retarded criminals constitute cruel and unusual

punishment under the Eighth Amendment).

44 HEDLUND V. RYAN

Court applied an unconstitutional causal nexus test to exclude

evidence proffered in mitigation, contrary to, or an

unreasonable application of, Tennard and Smith.

The Arizona Supreme Court did not exclude any of

Hedlund’s mitigating evidence. Nor did it employ an

unconstitutional nexus test. Therefore, its conclusion that the

aggravating circumstance “clearly outweighs the minimal

mitigating evidence,” was not contrary to, nor an

unreasonable application of, clearly established federal law.

1. All mitigating evidence was considered as required

by Eddings.

The Arizona Supreme Court did not violate Eddings,

because it considered all mitigating evidence presented by

Hedlund. The Arizona Supreme Court clearly understood

and applied the controlling Supreme Court precedent. See

McKinney, 917 P.2d at 1226. While the trial court was

required to consider all mitigating mental health evidence, the

Arizona Supreme Court recognized that the trial court was

vested with “broad discretion . . . to determine the weight and

credibility given to it.” Id. Thus, because the trial judge did

not fail to consider the experts’ psychological testimony but

instead found some of the opinions lacking in credibility, the

Arizona Supreme Court properly concluded that Hedlund’s

constitutional rights were not violated. See Lopez v. Schriro,

491 F.3d 1029, 1037–38 (9th Cir. 2007) (reviewing court’s

conclusion that trial court had reviewed all mitigating

evidence is not objectively unreasonable under AEDPA when

based on trial court’s statement that it reviewed all such

evidence).

HEDLUND V. RYAN 45

The Arizona Supreme Court’s decision demonstrates that

no mitigating evidence was excluded. The Arizona Supreme

Court considered and shared the trial court’s view of the

mitigating evidence. It noted that childhood abuse “does not

necessarily have substantial mitigating weight absent a

showing that it significantly affected or impacted a

defendant’s ability to perceive, to comprehend, or to control

his actions.” McKinney, 917 P.2d at 1227. Because no such

evidence was offered, the reviewing court concluded that the

trial court did not err in declining to extend leniency based on

these circumstances. Id. The reviewing court also found

little evidence that alcohol impaired Hedlund’s judgment. Id.

With respect to the aggravating circumstances, the

Arizona Supreme Court struck the use of Hedlund’s second

degree murder conviction as a statutory aggravating factor

constituting a prior conviction for a crime of violence. Id. at

1229. Where Hedlund could have been convicted on a theory

of reckless indifference, the court found that this conviction

did not qualify as a crime of violence. Id. The court upheld

the statutory aggravating factor of pecuniary gain based on

Hedlund’s killing for the purpose of financial gain. Id. at

1231.

Because one aggravating factor was stricken, it was

necessary to reweigh the remaining aggravating factor against

all of the mitigating factors. Id. Because “the [trial] judge

did not improperly exclude mitigating evidence at sentencing

and the mitigating evidence [was] not of great weight,” the

Arizona Supreme Court found that it could properly reweigh

the evidence rather than remand to the trial court. Id. The

court stated, “In our reweighing, we must decide whether the

sole aggravator – pecuniary gain – outweighs the mitigating

circumstances discussed above or whether those mitigators

46 HEDLUND V. RYAN

are sufficiently substantial to call for leniency.” Id. The

court found that, “[i]n comparison to the mitigating

circumstances here, the quality of the aggravating

circumstances is great.” Id. The court noted that, in some

cases where pecuniary gain was the only aggravating factor,

the death penalty was not imposed. Id. However, in

Hedlund’s case, his conduct gave “great weight to the

aggravating circumstance.” Id. The court therefore

concluded that “the aggravating circumstance of pecuniary

gain clearly outweighs the minimal mitigating evidence.” Id.

The foregoing analysis by the Arizona Supreme Court

demonstrates that no mitigating evidence was excluded.

Rather, it was considered and weighed against the

aggravating factor of pecuniary gain. This procedure

comports with Eddings, which requires only that all

mitigating evidence be considered. Eddings, 455 U.S. at

113–15 (stating that while the sentencer may not exclude

mitigating evidence as a matter of law, “[t]he sentencer . . .

may determine the weight to be given relevant mitigating

evidence”).

While the Arizona Supreme Court’s consideration of the

mitigating circumstances largely mirrored that of the trial

court, a review of the sentencing transcript shows that the

record supports the Arizona Supreme Court’s decision. At

sentencing (tracking the rule announced in Lockett), the trial

court noted that “[t]he sentence imposed should reflect a

reasoned, moral response to the defendant’s background,

character, and the crime.” The court recognized the

“individualized sentence” requirement and specifically cited

its duty under Eddings and Lockett to “weigh carefully, fairly,

objectively, all of the evidence offered at sentencing,

HEDLUND V. RYAN 47

recognizing that not everyone who commits murder should be

put to death.”

Turning to the mitigating evidence, the trial court

discredited an expert opinion that Hedlund’s conduct was

affected by alcohol. The court stated that “there was [no]

reliable, credible evidence to support the conclusion that the

information relied upon by Dr. Shaw was accurate or

truthful,” where that information was based on Hedlund’s

self-serving statements. Although the trial court nonetheless

“considered evidence of alcohol consumption as evidence of

mitigation, there [was] little to demonstrate that it in any

[way] substantially affected the defendant’s ability to

understand the unlawfulness of his conduct.” Thus, because

it was not reliable and credible, the court assigned little

weight to the mitigating evidence of alcohol use. The

Arizona Supreme Court found the trial court did not err and

similarly gave the mitigating evidence of alcohol use little

weight. Id. at 1227. Neither court excluded this evidence in

violation of Eddings.

Next, the trial court considered evidence of Hedlund’s

upbringing. However, the court found that “there was no

persuasive testimony presented that leads to the conclusion

that the abuse . . . the defendant suffered as a child resulted in

him being under unusual or substantial duress at the time of

the murders.” The Arizona Supreme Court largely adopted

the trial court’s view of this evidence and found that it was

not substantially mitigating to overcome the aggravating

factor. Id. Again, neither court excluded the evidence in

violation of Eddings. Because all mitigating evidence was

considered, there was no constitutional error.

48 HEDLUND V. RYAN

The dissent believes the sentencing court betrayed its

responsibility under Eddings because it “never indicated that

its analysis . . . , clearly requiring a nexus between the child

abuse and the crime, went to the weight it was giving the

evidence, rather than its relevance.” However, the sentencing

court stated that it had reached its decision “after carefully

considering and weighing all of the aggravating or mitigating

factors,” including “the child abuse which the Court finds is

a fact.” (emphasis added). If the sentencing court had

unconstitutionally determined that the child abuse were

irrelevant, as the dissent suggests, there would have been no

need to weigh it against the aggravating factors.

Even if the dissent’s erroneous reading of the record were

correct, we may not infer unconstitutionality from a

sentencing court’s silence as to how it used the causal nexus

test. Such an inference would fly in the face of Supreme

Court precedent, which requires that we “presum[e] that [the]

state courts know and follow the law.” Woodford v. Viscotti,

537 U.S. 19, 24 (2002).

Hedlund argues that a state court may not simply give “lip

service” to mitigating evidence by merely saying it

considered the evidence; instead, no barriers may prevent the

sentencer from giving effect to all mitigating evidence.

Hedlund identifies no such barriers in this case. In Penry, the

Court reversed and remanded a death sentence under

Lockett/Eddings where the jury was unable to give effect to

all mitigating evidence. See Penry, 492 U.S. 302 at 328.

Unlike in Penry, however, the sentencer’s review of

mitigating evidence in Hedlund’s case was not constricted by

statutory special issue questions or any other limiting

checklist of factors to be considered in mitigation. See id. at

323–25, 328. Although Arizona law provides for statutory

HEDLUND V. RYAN 49

mitigating factors, one cannot exclude evidence in mitigation

simply because it does not meet the criteria of a statutory

factor.20 Indeed, such a rule would run contrary to Supreme

Court authority. The Arizona Supreme Court’s independent

consideration of Hedlund’s mitigating evidence illustrates the

rule allowing for broad consideration of all mitigating factors.

Its consideration of such evidence tracked the trial court’s

review of that evidence. In recognition of the rule that

mitigating evidence may not be categorically excluded, the

trial court accepted the mitigating factors of Hedlund’s

“dependent personality traits, his past drug and alcohol abuse,

and child abuse,” notwithstanding the fact that none rose to

the level of a statutorily enumerated factor.

After considering all of the mitigating factors, the Arizona

Supreme Court found that the aggravating circumstance

20

While a sentencer may assign statutory mitigating factors more

weight, this does not render non-statutory mitigating factors weightless

either in principle or in practice. In some cases, the Arizona Supreme

Court has reversed the death penalty without specifically finding any

statutory mitigating factors, based on its conclusion that the mitigation

presented, even without a causal connection to the crime, outweighed the

aggravating circumstance of pecuniary gain. See, e.g., State v. Rockwell,

775 P.2d 1069, 1079 (Ariz. 1989) (“This defendant’s character and

background, together with his age at the time of the murder and the unique

circumstances of his conviction, cause us to conclude that a sentence of

death is inappropriate in this case.”); State v. Marlow, 786 P.2d 395, 402

(Ariz. 1989) (“[T]he result of our review discloses one substantial

aggravating factor to be weighed against any mitigation that appears in the

record. On the other side of the scale, the trial court did not weigh at all

a substantial mitigating factor, the dramatic disparity in sentence between

the defendant’s death sentence and the co-defendant’s four year prison

term.” (emphasis added)).

50 HEDLUND V. RYAN

heavily outweighed the minimal mitigating evidence.21 Id. at

1231. At no time did the court demonstrate an inability to

give effect to this evidence, based on Arizona law or

otherwise. Instead, the court considered all the mitigating

evidence and, in its sound discretion as sentencer, gave it less

weight than the aggravating evidence. Because nothing stood

in the way of the state courts’ ability to give effect to

Hedlund’s mitigating evidence, there was no constitutional

error under Penry.

2. The Arizona Supreme Court did not apply an

unconstitutional nexus test to Hedlund’s

mitigating evidence.

While we have recognized that, in some cases, the

Arizona Supreme Court has improperly applied a causal

nexus test before considering mitigating evidence to be

relevant,22 we conclude that the court did not apply such a test

here. Notably, absent a “clear indication” that the state court

applied an unconstitutional causal nexus test, “we cannot

assume the courts violated Eddings’s constitutional

mandates.” Schad, 671 F.3d at 724. Nothing in the Arizona

Supreme Court’s independent review, nor in the trial court’s

sentencing transcript (to the extent the supreme court adopted

21

Similarly, the trial court concluded that “none of the mitigation

considered by the Court in this case, either individually or cumulatively,

are sufficiently substantial to call for leniency.”

22

Schad, 671 F.3d at 722–23 (“Before Tennard was decided, Arizona

courts recognized a nexus test, similar to that rejected in Tennard, to

preclude consideration of evidence of childhood abuse unless the abuse

bore a causal connection to the crime of conviction. . . . After Tennard,

however, the Arizona Supreme Court has clarified that the nexus test

affects only the weight of mitigating evidence, not its admissibility.”).

HEDLUND V. RYAN 51

the trial court’s reasoning), suggests that any mitigating

evidence could not, as a rule, be given effect based on lack of

nexus.23 While the Arizona Supreme Court ultimately

decided that the cumulative weight of the mitigating evidence

did not call for leniency, this conclusion is based on the

weight assigned to mitigating factors, not the outright

rejection of those factors based on a lack of nexus. Assigning

less weight to mitigating factors because they did not

influence Hedlund’s conduct at the time of the crime does not

show that the sentencer was prevented from giving effect to

such evidence because it lacked a causal nexus to the crime.

See Schad, 671 F.3d at 723 (“The United States Supreme

Court has said that the use of the nexus test in this manner is

not unconstitutional because state courts are free to assess the

weight to be given to particular mitigating evidence.”).

Instead, it demonstrates that a sentencing court may exercise

its discretion in assigning particular weight to particular

evidence. As we have previously recognized, this approach

is not contrary to clearly established federal law. See Towery

v. Ryan, 673 F.3d 933, 944–45 (9th Cir. 2012), cert. denied,

132 S. Ct. 1738 (2012).

In Towery, we reviewed the Arizona Supreme Court’s

rulings that (1) the sentencing court “must consider the

defendant’s upbringing if proffered but is not required to give

it significant mitigating weight” and (2) the question of

“[h]ow much weight should be given proffered mitigating

23

The sentencing hearing transcript demonstrates that the trial court did

not express an inability to weigh the mitigating evidence. Indeed, the

court considered evidence of Hedlund’s personality traits, substance

abuse, and abuse as a child. The court discussed these mitigating factors

several times, suggesting that it gave effect to whether leniency was

warranted, and did not just pay “lip service” to the mitigation, as Hedlund

argues.

52 HEDLUND V. RYAN

factors is a matter within the sound discretion of the

sentencing judge.” Id. at 944. We found these rulings to be

“correct statements of the law.” Id. We also affirmed the

ruling that “a difficult family background is not always

entitled to great weight as a mitigating circumstance,” and

“where the defendant fails to connect his family background

to his criminal conduct, a trial judge could give it little or no

weight or value.” Id. at 944–45.

Here, like in Towery, the Arizona Supreme Court noted

that “[a] difficult family background, including childhood

abuse, does not necessarily have substantial mitigating weight

absent a showing that it significantly affected or impacted a

defendant’s ability to perceive, or to comprehend, or to

control his actions.” McKinney, 917 P.2d at 1227. Affirming

a sentencing court’s discretion over the weight to assign

mitigating evidence in no way alleviates the sentencing

court’s obligation to consider any and all mitigating evidence

without regard to a causal nexus.

This case is different from Williams v. Ryan, where we

granted habeas relief after the Arizona state court refused to

consider drug addiction as a mitigating factor. See 623 F.3d

1258, 1270–71 (9th Cir. 2010) (holding that it was error for

state court to refuse to consider the mitigating circumstance

of substance abuse simply because Williams “offered no

evidence showing that he was intoxicated when he murdered

[the victim]”). Here, the Arizona Supreme Court

acknowledged that the trial court did not refuse to consider

evidence of substance abuse or family history, because it

lacked a nexus to the crime. Rather, it considered and

credited evidence of both, but concluded that their weight was

not great enough to overcome the aggravating circumstance.

Specifically, the Arizona Supreme Court stated, “In

HEDLUND V. RYAN 53

comparison to the mitigating circumstances, the quality of the

aggravating circumstance is great.” McKinney, 917 P.2d at

1231. Thus, it concluded that “the aggravating circumstance

of pecuniary gain clearly outweighs the minimal mitigating

evidence.” Id. Clearly established federal law mandates that

the sentencer consider all relevant mitigating evidence

without regard to whether that evidence bears a causal nexus

to the crime; it says nothing about the weight the sentencer

must assign to such evidence. See Eddings, 455 U.S. at 115

(recognizing that in some cases, evidence of a difficult family

history and emotional disturbance “properly may be given

little weight”).

The dissent makes much of the Arizona Supreme Court’s

citation to State v. Ross, 886 P.2d 1354 (Ariz. 1994). In Ross,

the Arizona Supreme Court stated “[a] difficult family

background is not a relevant mitigating circumstance unless

‘a defendant can show that something in that background had

an effect or impact on his behavior that was beyond the

defendant’s control.’” Id. at 1363 (emphasis added) (quoting

State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989)). The

dissent argues that the Arizona Supreme Court’s citation to

Ross demonstrates that it held the mitigation evidence

irrelevant and unconstitutionally excluded it for its lack of

causal nexus to the crime.

We reject this argument, just as we rejected a similar

argument in Towery, where the Arizona Supreme Court

supported its decision with a citation to Wallace. See Towery,

673 F.3d at 946. While the Towery court deemed Wallace

(and, by extension, Ross) “constitutionally suspect,” this does

not end the analysis. See id. We must review the record in

Hedlund’s case to determine whether the sentencing court and

the Arizona Supreme Court actually applied the

54 HEDLUND V. RYAN

unconstitutional test. See id. For the reasons stated above,

we conclude that the Arizona Supreme Court did not apply an

unconstitutional nexus test, notwithstanding the citation to

Ross. Because Hedlund’s mitigating evidence was

considered without regard to a causal nexus to the crime,

there is no constitutional error.

VI. Ineffective Assistance of Counsel During Penalty

Phase24

A. Background and procedural history

At trial, Hedlund presented expert testimony from Dr.

Ronald Holler, who had conducted a “Neuropsychological

and Psychological Evaluation” of Hedlund before trial. Dr.

Holler noted that Hedlund reported drinking up to twelve

beers on the night of the burglary-murder. He found that

Hedlund’s intoxication was a function of his “alcohol

dependence.” He then discussed in some detail Hedlund’s

“extremely dysfunctional” early childhood experiences. Dr.

Holler found that Hedlund had a “misguided loyalty” toward

McKinney and had a limited understanding of his

“personality inadequacies.” Regarding Hedlund’s

“Intellectual/Neuropsychological Functioning,” he found a

“low average” IQ. He also found Hedlund may have scored

low on certain tests due to an “underlying depressive status”

and that Hedlund displayed “a slight indication of a learning

disability.”

24

The district court declined to grant a COA on this issue. However,

because we conclude that the district court’s resolution of the issue is

“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003), we address it.

HEDLUND V. RYAN 55

Dr. Holler “evaluate[d] various aspects of [Hedlund’s]

intellectual, cognitive, neuropsychological, [and] emotional

functioning as related to his background with his family and

other aspects of his environment.” One of the tests Dr. Holler

administered was the “Concise Neuropsychological Scale.”

He focused on “the abuse [Hedlund] suffered and the

resulting psychoneurological effects” of that abuse. He

opined that Hedlund suffered from “Post-traumatic Stress

Disorder [PTSD], as well as some intertwined disorders of

much consequence, including the alcohol dependence and a

depressive disorder.” He explained how the psychological

and physical abuse Hedlund suffered can lead to these

disorders.

Specifically, Dr. Holler explained the “neuropsychological

impairment” that can result and stated that Hedlund showed

“some indications of a very significant but yet in a sense mild

neuropsychological deficit.” Counsel then specifically

inquired about brain damage.

Q: Did you find any indication of right

hemisphere brain dysfunction or disorder?

A: There were indications of this. His verbal

IQ was 91, performance IQ was 78.

Essentially we talk about the verbal IQ as

being primarily associated with left

hemisphere functioning and this does refer

then to receptive and expressive speech,

reading capability and verbal memory. . . .

[The test results provide] further evidence that

the right hemisphere is not functioning as well

as the left hemisphere. This may well be

related to some of the physical abuse that he

56 HEDLUND V. RYAN

experienced, including being hit on the back

of the head.

Dr. Holler went on to explain that damage to the right

hemisphere could affect someone’s judgment. On redirect, he

clarified that, while Hedlund was not “severely retarded” or

“totally psychotic,” Hedlund did have “neurological

impairments which impaired his judgment.”

Dr. Charles Shaw, M.D., a medical addiction specialist,

also testified regarding Hedlund’s alcoholism. He testified

that alcoholism can lead to organic brain damage. He also

believed that Hedlund’s actions with respect to the crimes

were influenced by his alcoholism.

At sentencing, the trial court did not find credible

evidence to support Dr. Shaw’s conclusion that Hedlund was

affected by alcohol at the time of the crimes. Instead, the

court found that Hedlund had a motive to lie about the extent

of his alcohol consumption and his statements conflicted with

those of his sisters and a presentence report from an earlier

conviction.

The court also discounted Dr. Holler’s testimony, because

(1) he did not raise PTSD in his initial report, instead

announcing it for the first time while testifying; (2) some of

the foundational information upon which Dr. Holler based his

opinions was self-reported by Hedlund; and (3) some of the

conclusions were based on an erroneous presentence report.

During PCR proceedings, Hedlund proffered a report

from Dr. Marc S. Walter, a neuropsychologist. Dr. Walter

conducted a battery of tests on Hedlund and found certain

results consistent with a diagnosis of alcohol abuse. He also

HEDLUND V. RYAN 57

found “Cognitive Disorder, Not Otherwise Specified,” a

disorder “that used to be termed Organic Mental Disorder and

indicates the presence of brain damage,” and stated that

Hedlund may have “residual problems” with PTSD. In light

of these results, Dr. Walter concluded that Hedlund had brain

damage at the time of the offenses in 1991.

Dr. Walter admitted that the test used by Dr. Holler was

a “screening test for brain damage.” He expressed a

preference, however, for the battery of tests he administered

because they are a “comprehensive neuropsychological test

battery.” Dr. Walter stated that screening tests such as those

used by Dr. Holler “are relatively insensitive and often miss

the presence of brain damage.” Dr. Walter concluded by

stating that he believed that Hedlund’s brain damage, as

augmented by his alcohol use, prevented Hedlund from

“understand[ing] the consequences of his involvement in the

burglaries and the murders . . . .”

The PCR court reviewed Dr. Walter’s report but

concluded that counsel’s efforts during sentencing did not fall

below the standard expected of reasonable death-penalty trial

lawyers. The court noted that Dr. Walter’s report would not

support an insanity defense, and nothing in the record

suggested Hedlund was unaware of his involvement in the

crimes. The court continued that “[t]he fact that an attorney,

after the fact, obtains an opinion from an expert which might

have supported an alternative theory at trial does not

demonstrate, without more, that the strategy chosen by

defense counsel at the time of trial was ineffective.”

The court rejected the argument that counsel did not

present sufficient evidence of the neuropsychological effects

of Hedlund’s child abuse and alcohol abuse. The court stated

58 HEDLUND V. RYAN

that it was adequately informed of these conditions by Drs.

Holler and Shaw. The court found that Dr. Walter’s report

was not substantially or significantly different from the

earlier expert reports. The court challenged Dr. Walter’s

conclusion that Holler did not diagnose brain damage, which

in fact he did.

The district court reviewed all of the expert testimony and

reports proffered during the penalty phase and in PCR

proceedings. Based on that review, the court concluded that

it was not objectively unreasonable for the PCR court to find

that (1) the penalty phase experts’ opinions and PCR expert’s

opinion were substantially the same, and (2) Dr. Holler

entertained a diagnosis of brain impairment. The district

court also found that the PCR court did not unreasonably

apply Strickland. It rested this holding only on the

performance prong, finding analysis of the prejudice prong

unnecessary.

B. The state court did not unreasonably apply Strickland.

On federal habeas review of ineffective assistance of

counsel claims, courts apply the clearly established federal

law set forth in Strickland v. Washington. E.g., Cullen v.

Pinholster, 131 S. Ct. 1388, 1403 (2011). Under Strickland,

we must first ask whether “counsel’s assistance was

reasonable considering all the circumstances.” Strickland v.

Washington, 466 U.S. 668, 688 (1984). Counsel is granted

“wide latitude . . . in making tactical decisions,” and

“[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. We must also “indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. In the

context of that presumption, we “determine whether, in light

HEDLUND V. RYAN 59

of all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent

assistance.” Id. at 690.

Even a “professionally unreasonable” error by counsel

will not warrant setting aside a judgment, unless it was

“prejudicial to the defense.” Id. at 691–92. To establish

prejudice, a “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

The PCR court’s factual findings were not objectively

unreasonable. The findings, that the reports of Drs. Holler

and Shaw were substantially the same as Dr. Walter’s

proffered report and that Dr. Holler diagnosed brain damage,

are supported by the record. Dr. Holler found that Hedlund

suffered from alcohol dependence, PTSD, and a depressive

disorder. Dr. Holler also explained how neurological

impairment can result from those factors, and that Hedlund

had indications of “a very significant but yet in a sense mild

neuropsychological deficit.” Dr. Walter admitted that the test

used by Dr. Holler screens for brain damage and Dr. Holler

found that Hedlund had a right hemisphere dysfunction or

disorder and that this could impair his judgment. Dr. Shaw

testified about Hedlund’s alcoholism and its effects on

Hedlund. Similarly, Dr. Walter opined about brain damage

and its impact at the time of the offense.

60 HEDLUND V. RYAN

1. It was not objectively unreasonable for the state

PCR court to conclude that counsel’s performance

was not deficient.

The PCR court’s application of Strickland was also not

unreasonable. Hedlund’s counsel’s performance was

reasonable considering the circumstances. Counsel hired a

psychologist to testify about Hedlund’s various mental and

personality defects, including neuropsychological

impairments to his brain. Counsel also hired a psychiatrist to

testify about Hedlund’s severe alcoholism. Counsel’s tactical

decisions of precisely which experts to hire must be afforded

deference. Hedlund’s proffer of additional experts on

collateral review who say substantially the same thing does

not call into question the reasonableness of counsel’s

decisions. Counsel’s strategy to present testimony about

Hedlund’s troubled childhood and ongoing psychological,

neuropsychological, and medical conditions cannot be said to

fall outside the wide range of professionally competent

assistance.

Hedlund argues that the PCR court contradicted itself

with respect to the expert testimony presented during

sentencing. Specifically, on PCR review, the court found

testimony by Drs. Holler and Shaw sufficient to paint a

picture of Hedlund’s condition. However, Hedlund argues

that when sitting as the sentencing court, the court discredited

the same experts’ testimony.

That the sentencing court discredited certain aspects of

Drs. Holler and Shaw’s testimony does not discredit the PCR

court’s conclusion that their opinions were substantially the

same as that proffered by Dr. Walter. During sentencing, the

court discredited Dr. Shaw’s conclusion that Hedlund was

HEDLUND V. RYAN 61

affected by alcohol at the time of the crimes. The court found

this self-reported information suspect, because of Hedlund’s

motive to lie. The court also questioned why Dr. Holler

raised PTSD for the first time while testifying–when he had

not cited it in his report–and noted that some of the

conclusions were based on erroneous information contained

in a PSR. These observations do not call into question Dr.

Shaw’s conclusion that Hedlund suffered from alcoholism or

Dr. Holler’s conclusion that Hedlund suffered from a brain

impairment.25 They simply speak to the weight afforded the

experts’ opinions in determining mitigation–weight based on

reliability and credibility. To the extent Dr. Walter’s

testimony also relied on the sentencing transcript, reports

from family members, and information self-reported by

Hedlund, it would be unreliable for the same reasons.

25

The record does not support the dissent’s argument that “[b]ecause

Hedlund’s counsel had presented unreliable expert testimony, it was as if

he had presented none at all.” Although the sentencing court discredited

Dr. Shaw’s conclusion that Hedlund was affected by alcohol at the time

of the crimes, the sentencing court did not discredit Dr. Shaw’s opinion

that Hedlund suffered from alcohol abuse generally. While there was a

question as to the nature and extent of the alcohol abuse, the sentencing

court specifically stated that it would be considered as a mitigating factor.

With respect to Dr. Holler, the sentencing court explained that it afforded

the testimony “little weight,” because the failure to include PTSD in the

original expert report was “unpersuasive at best.” While the sentencing

court questioned the value of Dr. Holler’s opinions, it did not discredit the

opinion on child abuse; however, it found no duress from such abuse at

the time of the murders.

The sentencing court went on to explain how it considered Hedlund’s

“dependent personality traits, his past drug and alcohol abuse, and child

abuse.” These are all areas on which Hedlund’s experts opined. While

the sentencing court discredited certain aspects of the experts’ testimony

based on unreliability, the record demonstrates that the sentencing court

did not wholly exclude the experts’ testimony.

62 HEDLUND V. RYAN

Hedlund also argues that counsel did not have “a

complete picture” of his brain damage and, if counsel would

have hired a neuropsychology expert, the expert could have

“definitively concluded” that Hedlund had brain damage.

However, as explained above, the PCR court did not make

objectively unreasonable factual determinations that evidence

of brain damage presented at sentencing was similar to that

proffered to the PCR court. Hedlund has also failed to rebut

the presumption that counsel’s preparation of the expert

witnesses for sentencing fell below the wide range of

professionally acceptable conduct.

2. Prejudice

Because Hedlund has not shown that counsel’s

performance was deficient, we need not reach the question of

prejudice.

CONCLUSION

The district court properly denied relief on Hedlund’s

claims regarding (1) use of the visible leg brace, (2) use of

dual juries, (3) juror bias, (4) ineffective assistance of counsel

during the plea process, (5) consideration of mitigating

evidence under Lockett/Eddings and their progeny, and

(6) ineffective assistance of counsel during the penalty phase.

Denial was proper because the Arizona Supreme Court’s

decision denying relief was not contrary to, or an

unreasonable application of, clearly established federal law,

nor was it based on an unreasonable determination of the

facts.

AFFIRMED.

HEDLUND V. RYAN 63

WARDLAW, Circuit Judge, concurring in part and dissenting

in part:

I respectfully dissent from Parts I, IV, V, and VI of the

majority opinion, and concur in the remainder.1 Because the

relevant state court decisions addressing Hedlund’s Eddings,2

ineffective assistance of counsel, and shackling claims are

unreasonable applications of clearly established Supreme

Court precedent and include unreasonable factual

determinations, I would reverse and remand this appeal.

Charles Michael Hedlund’s constitutional rights were

violated at every stage of his proceedings, from his plea

negotiations to his sentencing, yet the Arizona courts

affirmed on direct appeal and denied his petition for post-

conviction relief. First, Hedlund’s trial counsel allowed a

plea offer to expire that would have likely saved Hedlund

from a death sentence. Then, during the trial that resulted

from that failure, Hedlund was shackled, in view of the jury

and without an individualized determination that he, rather

than his co-defendant James McKinney, posed a threat to

courtroom security or an escape risk. After Hedlund was

convicted, his counsel failed to present an expert who could

have testified definitively that Hedlund suffered from brain

damage. Finally, the sentencing court erroneously refused to

1

I agree that the remaining uncertified issues are not “debatable amongst

jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and

therefore need not be discussed.

2

As Chief Judge Kozinski recently predicted, Hedlund’s petition is yet

another example of the state courts applying an unconstitutional causal

nexus test before imposing and affirming a sentence of death. See Poyson

v. Ryan, 743 F.3d 1185, 1188 (9th Cir. 2013) (Kozinski, C.J., dissenting

from the denial of rehearing en banc).

64 HEDLUND V. RYAN

consider Hedlund’s mitigation evidence because Hedlund

could not show that any of his mitigating circumstances bore

a causal nexus to his crimes.

In examining the reasonableness of the state courts’

decisions under 28 U.S.C. § 2254(d), we look to the last

reasoned state court opinion on the claim. Milke v. Ryan,

711 F.3d 998, 1005 (9th Cir. 2013) (citing Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991)). The relevant state

courts’ decisions were “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States”

and were “based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). These constitutional

violations had a “substantial and injurious effect or influence

in determining the jury’s verdict,” Brecht v. Abrahamson,

507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)), thus entitling Hedlund to habeas

relief. Therefore, I would reverse the district court’s decision

and remand with instructions to grant a conditional writ of

habeas corpus setting aside Hedlund’s conviction and

sentence.

I.

Although Hedlund raises a number of constitutional

claims, not all of them are legally cognizable. A complete

picture of Hedlund’s trial and sentencing, however, is

important to appreciate the context in which Hedlund’s

constitutional rights were violated. Hedlund’s case should

never have proceeded to trial. First, the trial court judge,

Judge Sheldon, rejected a plea agreement that the government

and Hedlund had agreed upon after reading letters from one

HEDLUND V. RYAN 65

of the victims’ families asking him to do so, but indicated he

would accept an agreement with greater accountability for

McClain’s death. Second, Hedlund’s trial counsel allowed

the deadline to expire for a second plea agreement, which

would have spared Hedlund from a death sentence while

providing for the greater accountability that Judge Sheldon

demanded.

Hedlund was tried with his half-brother and co-defendant

James McKinney. Judge Sheldon initially granted Hedlund’s

unopposed motion for a severance, but then sua sponte

decided to empanel dual juries instead, over both the

defendants’ and State’s objections and contrary to then

Arizona law. See State v. Lambright, 673 P.2d 1, 7 (Ariz.

1983). On a petition for special action, the Arizona Court of

Appeals vacated the trial court’s order pursuant to Lambright.

The Arizona Supreme Court reversed, and overruled its own

precedent, by overturning Lambright and holding that Judge

Sheldon’s decision to empanel a dual jury was properly

within his discretion. Hedlund v. Sheldon, 840 P.2d 1008,

1011 (Ariz. 1992) (en banc). Judge Sheldon also decided,

based on ex parte, triple-hearsay inmate information that did

not even identify Hedlund, that Hedlund should be shackled,

and then conducted a hearing on the matter only so he could

make a record of his decision.

Hedlund’s counsel moved to recuse Judge Sheldon based

on the appearance of impropriety in his sua sponte and one-

sided pretrial rulings. On the same day that Judge Sheldon

conducted a hearing on the shackling issue, he was defending

himself against Hedlund’s recusal motion before one of his

colleagues. Hedlund’s recusal motion was denied. Judge

Sheldon then refused to direct that a curtain or other barrier

be placed around Hedlund’s table so that the jury would not

66 HEDLUND V. RYAN

see the shackles. Judge Sheldon proceeded to conduct the

trial in a manner unfair to Hedlund, including conducting the

voir dire of a key prosecution witness—voir dire that

Hedlund’s counsel had requested—outside of Hedlund’s

counsel’s presence. Because Judge Sheldon concluded that

McKinney and Hedlund had an “identity of interests,” he

determined that McKinney’s counsel’s presence was

sufficient representation of Hedlund.

At sentencing, Judge Sheldon found Hedlund’s expert

mental health evidence not credible, dismissed his mitigating

evidence of child abuse as not related to the crime, and

sentenced Hedlund to death.

Finally, when Judge Sheldon “became” the state post-

conviction relief (“PCR”) court,3 he acted as a witness in the

case, opining that Hedlund’s counsel had been very diligent

and effective, and denied Hedlund’s request to develop the

record through an evidentiary hearing where his experts could

testify. The Arizona Supreme Court summarily affirmed the

PCR court’s denial of relief. It is clear that Hedlund did not

receive a fair trial, and has not yet had access to a meaningful

review of his claims. Under AEDPA’s deferential standard,

Hedlund’s Eddings, ineffective assistance of counsel, and

shackling claims entitle him to habeas relief.

3

As a consequence of Arizona’s state habeas system, see Ariz. R. Crim.

P. 32.3, Hedlund’s petition for post-conviction relief was reviewed in

superior court by the same judge who presided over his underlying

criminal case.

HEDLUND V. RYAN 67

II.

Under Eddings v. Oklahoma, 455 U.S. 104 (1982), a state

court may not treat mitigating evidence of a defendant’s

background as “irrelevant or nonmitigating as a matter of

law” merely because it lacks a causal connection to the crime.

Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per

curiam), cert. denied, 132 S. Ct. 1738 (2012). Here, the state

courts did precisely what Eddings prohibits: they found

mitigating evidence of Hedlund’s abusive childhood as a

matter of fact, but treated it as nonmitigating as a matter of

law because it lacked a causal connection to the crime.

A.

Words fail to adequately describe the horrors that

Hedlund suffered as a child. Indeed, Hedlund’s mental health

expert, Dr. Holler, described Hedlund’s childhood as

“probably as gruesome as anything that I have come across in

25-plus years in this business.” The testimony of Hedlund’s

half-sisters and aunt paint a ghastly picture of extreme

physical and emotional abuse. Hedlund and his three half-

siblings were raised in the outskirts of Chandler, Arizona, by

Shirley and James McKinney, Sr. Shirley and James Senior,

however, were not Hedlund’s biological parents. Hedlund

was conceived during an extramarital affair that Hedlund’s

mother, who was James Senior’s first wife, had with a man

named Charles Hedlund. Growing up with the McKinneys,

Hedlund was reminded daily that he was not a McKinney.4

4

Hedlund lived with Shirley and James McKinney, Sr. from ages six to

fourteen. When he was twelve years old, Shirley told him that he had

been conceived during his biological mother’s affair with another man,

68 HEDLUND V. RYAN

Hedlund lacked even the basic necessities as a child. He

grew up living in filth and was rarely clothed. His home was

covered in animal feces, bile, urine, used female hygiene

products, and dirty diapers. Hedlund and his siblings were

forced to share a very small room with a variety of

domesticated and exotic animals, including, at times, a goat,

a calf, a spider monkey, and snakes. The children were

terrified of snakes, but Hedlund’s stepparents nevertheless

housed the snakes in the children’s closet. Hedlund and his

siblings were also not allowed to eat anything unless they

received permission from Shirley McKinney. At least once

a month, she would lock the children in the house while she

went shopping and threaten that if they ate anything while she

was gone, she would beat them. During the summer, Shirley

would lock Hedlund and his siblings out of the house in heat

exceeding 100 degrees. Because they were usually wearing

only underwear, Hedlund and his siblings were frequently

sunburned while locked out of their home. On one occasion,

Hedlund’s aunt saw the children locked outside in the heat,

while Shirley and her own biological daughter, who was

favored and spared from Shirley’s abuse, sat inside and told

Hedlund and his siblings that they were not allowed to drink

water from the hose outside. In effect, Shirley and James

Senior treated Hedlund and his siblings like the animals they

housed in the children’s bedroom.

Shirley McKinney tormented her stepchildren, especially

Hedlund, who was the oldest and the “bastard.” She hit them

with belts, old wooden boards, skillets, wire hangers, shovels,

garden hoses, or anything else that was within reach when she

grew angry. She struck indiscriminately and was often

and that James Senior was not, as Hedlund had believed up until then, his

biological father.

HEDLUND V. RYAN 69

helped by her own biological daughter, who held down her

step-siblings as they were beaten. Hedlund’s half-sister

Donna testified that she and her half-siblings were punched

in the face at least once a day. Hedlund’s half-sisters and

aunt testified to a number of particular episodes where

Hedlund was beaten. For instance, James Senior kept a

vicious dog that once attacked Hedlund, who was a small

child at the time, and injured his face so badly that he had to

receive over 200 stitches. The day after Hedlund received

medical treatment, Shirley and her daughter woke Hedlund

up in the early morning and beat him for over an hour

because his medical treatment had cost them money.

Hedlund’s aunt also testified to another incident where she

saw Shirley violently beat Hedlund and his half-brother

James McKinney. James had been kicked off the school bus

for fighting and as Shirley was marching him to the house,

she clipped off a foot-long piece of a water hose and began

beating James with it. James was small enough at the time

that Shirley was holding him in the air by his arm while she

beat him with the water hose. Hedlund tried to stop Shirley’s

strikes by jumping on her arm and yelling, “Momma, stop it.

Momma, stop it.” In response, Shirley pushed Hedlund off

and struck him across the face with the hose. Hedlund fell to

the ground, hitting the back of his head against the concrete

sidewalk.

By any measure, Hedlund’s savage childhood was a

mitigating factor that the Arizona courts should have

considered. But because they applied the prohibited causal

nexus test, Hedlund has not yet received the constitutionally-

required review that he is due.

70 HEDLUND V. RYAN

B.

It is well established that when Hedlund was sentenced in

1993, Eddings and its progeny required that the sentencer

give “independent mitigating weight” to all relevant

mitigating evidence. See Eddings, 455 U.S. at 110 (internal

quotation marks omitted). At that time, the Supreme Court

had already clarified that the Eighth and Fourteenth

Amendments specifically require the sentencer to fully

consider all mitigating evidence, regardless of the lack of a

causal connection between the evidence and the defendant’s

crime of conviction:

There is no disputing that this Court’s

decision in Eddings requires that in capital

cases the sentencer . . . not be precluded from

considering, as a mitigating factor, any aspect

of a defendant’s character or record and any

of the circumstances of the offense that the

defendant proffers as a basis for a sentence

less than death. Equally clear is the corollary

rule that the sentencer may not refuse to

consider or be precluded from considering any

relevant mitigating evidence. These rules are

now well established . . . .

Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (emphasis in

original) (internal quotation marks and citations omitted); see

also McKinney v. Ryan, 730 F.3d 903, 921–22 (9th Cir. 2013)

(Wardlaw, J., dissenting), vacated and reh’g en banc granted,

2014 WL 1013859 (9th Cir. March 12, 2014).

The last reasoned state court decision addressing

Hedlund’s Eddings claim is the Arizona Supreme Court’s

HEDLUND V. RYAN 71

decision on direct appeal. The Arizona Supreme Court

reviewed the sentencing court’s mitigation findings for abuse

of discretion and held that the sentencing court “did not err in

concluding that Hedlund’s family background was not

sufficiently mitigating to require a life sentence.” State v.

McKinney, 917 P.2d 1214, 1227 (Ariz. 1996) (en banc),

superseded by statute on other grounds as stated in State v.

Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc). Then,

after concluding that the trial judge erred in finding one of the

two aggravating factors it applied in Hedlund’s case, the

Arizona Supreme Court reweighed the aggravating and

mitigating circumstances. However, the Arizona Supreme

Court applied no “reasoned and individualized” independent

analysis of the evidence of childhood abuse that Hedlund

presented in mitigation. Cf. Towery, 673 F.3d at 945 (“The

[Arizona] supreme court also independently weighed the

mitigating evidence against the aggravating circumstances to

determine whether leniency was called for. As part of that

review, the court considered whether evidence of Towery’s

difficult childhood should be given substantial weight.”)

(internal alterations, quotation marks, and citations omitted).

Instead, the Arizona Supreme Court adopted the sentencing

court’s analysis of the mitigation evidence, noting only that

“the judge did not improperly exclude mitigating evidence at

sentencing and the mitigating evidence is not of great

weight.” McKinney, 917 P.2d at 1231. Because the Arizona

Supreme Court adopted the sentencing court’s mitigation

analysis, reviewing it for abuse of discretion and conducting

no reasoned and individualized independent analysis of its

own, we must “look at both decisions to fully ascertain the

reasoning of the last decision.” Id. at 944 n.3 (quoting Barker

v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)).

72 HEDLUND V. RYAN

The sentencing court found evidence of Hedlund’s

tortured childhood “compelling and credible” and then

presented its analysis of the mitigation evidence:

I have considered [the childhood abuse]. I

think it is the Court’s obligation to consider it,

whether or not it complies with the

requirements in (G)(1) [a statutory mitigating

factor].

I have also considered all of the other

mitigating factors which were set forth in

three separate pleadings submitted by defense

counsel in this case. I have reviewed all of

them again as recently as yesterday and some

of those factors this morning. The Court, after

carefully considering and weighing all of the

aggravating or mitigating factors presented in

this case, and not limited to the personality

traits discussed by Dr. Holler, past drug and

alcohol use discussed about [sic] Dr. Shaw,

Dr. Holler and the other witnesses who

testified, and the child abuse which the Court

finds is a fact, that none of those mitigating

factors considered separately or cumulatively

indicates to the Court that these factors

affected the defendant’s ability to control his

physical behavior at the time of the offense or

to appreciate the wrongfulness of his conduct,

that the defendant was aware at all times

while these offenses were occurring that what

he was doing was wrong, that he continued to

participate in them and that he had the

HEDLUND V. RYAN 73

intelligence and the ability to refuse continued

participation.

Sentencing Hr’g Tr. at 23–24, July 30, 1993 (emphasis

added). The sentencing court made explicit that it considered

and weighed Hedlund’s mitigating evidence insofar as that

evidence affected Hedlund’s capacity at the time of the crime.

The court evaluated Hedlund’s abusive childhood only to the

extent it may have “affected the defendant’s ability to control

his physical behavior at the time of the offense or to

appreciate the wrongfulness of his conduct.” Id. at 24. This

refusal to consider and give effect to significant mitigating

evidence that the court found credible because it was not tied

to his behavior in committing the crime is contrary to

Eddings. The sentencing court never indicated that its

analysis quoted above, clearly requiring a nexus between the

child abuse and the crime, went to the weight it was giving

the evidence, rather than its relevance.

The majority’s conclusion that the Arizona Supreme

Court permissibly weighed the mitigating evidence of

Hedlund’s tormented childhood, and did not improperly apply

a causal nexus test, is contrary to the Arizona Supreme

Court’s plain reasoning. The majority supports its reading of

the record based on a single sentence from the Arizona

Supreme Court’s decision: “A difficult family background,

including childhood abuse, does not necessarily have

substantial mitigating weight absent a showing that it

significantly affected or impacted a defendant’s ability to

perceive, to comprehend, or to control his actions.”

McKinney, 917 P.2d at 1227. But the majority ignores the

legal authority that the court cited to support this rule. The

Arizona Supreme Court cited to a portion of its decision in

State v. Ross that states unambiguously, a “difficult family

74 HEDLUND V. RYAN

background is not a relevant mitigating circumstance unless

a defendant can show that something in that background had

an effect or impact on his behavior that was beyond the

defendant’s control.” 886 P.2d 1354, 1363 (Ariz. 1994)

(internal quotation marks omitted). If he cannot show this,

“Defendant’s background therefore is not a mitigating

circumstance.” Id. The court in Ross did not say that family

background unconnected to criminal conduct is of “little or

no weight or value.” Cf. Towery, 673 F.3d at 945 (“[T]he

[Arizona] court’s reasoned and individualized decision to

give [defendant’s] evidence little or no weight was not

contrary to Supreme Court precedent.”) (emphasis in

original). Instead, Ross held, as a matter of law, that a

causally unrelated family background was not relevant. By

deeming the unconnected background evidence not relevant,

the Ross court applied the impermissible causal nexus test

that the U.S. Supreme Court has unequivocally rejected. See

Smith v. Texas, 543 U.S. 37, 45 (2004) (per curiam) (stating

that the causal nexus test is one “we never countenanced and

now have unequivocally rejected”); Tennard v. Dretke,

542 U.S. 274, 284–86 (2004) (explaining that the causal

nexus test “has no foundation in the decisions of this Court”).

In the same way it did in Ross, the Arizona Supreme Court

impermissibly refused to consider Hedlund’s childhood abuse

as a mitigating factor. Although the Arizona Supreme Court

cloaked this exclusion in the language of weighing and

sufficiency, it plainly and improperly applied a causal nexus

requirement.

The majority avoids reaching this conclusion by requiring

Hedlund to meet a heightened standard of proof that is not the

law of our circuit. The majority stretches the language of

Schad v. Ryan, 671 F.3d 708 (9th Cir. 2009) (per curiam),

cert. denied, 133 S. Ct. 432 (2012), to invent a new legal test

HEDLUND V. RYAN 75

which requires Hedlund to show a “clear indication” that the

Arizona courts applied an unconstitutional causal nexus test.5

Our use of the phrase “clear indication” in Schad, however,

was very different than the majority’s use here. In Schad, we

concluded that because there was “no indication” that the

state courts applied a causal nexus test, “either as a method of

assessing the weight of the mitigating evidence, or as an

unconstitutional screening mechanism,” we would not

presume constitutional error absent a “clear indication in the

record.” 671 F.3d at 724. Thus, we would not presume error

from silence. Here, in contrast, the record unquestionably

shows that the Arizona courts applied a causal nexus test.

The only question is whether they applied the

unconstitutional version of the causal nexus test. The “clear

indication” test from Schad—if it even is a test—helps courts

determine whether an Eddings violation exists when a record

contains no indication that any causal nexus test was used. It

was not intended as a tool for determining what variety of

causal nexus test a state court applied. Our controlling

precedent for determining that question is whether the state

court’s reasoning “appears to have” imposed the

impermissible test. Styers v. Schriro, 547 F.3d 1026, 1035

(9th Cir. 2008); see also Poyson, 743 F.3d at 1188 (Kozinski,

C.J., dissenting from the denial of rehearing en banc). To

conclude otherwise is to disavow controlling Supreme Court

authority, and blatantly break from our circuit’s precedent, as

the same majority did in McKinney v. Ryan, 730 F.3d at

919–21, vacated and reh’g en banc granted, 2014 WL

5

Dissenting in Poyson v. Ryan, Judge Thomas accused the majority

there of similarly distorting Schad’s “clear indication” language “to create

a new, more stringent test for determining whether a state court applied an

unconstitutional causal nexus analysis.” 743 F.3d at 1207 (Thomas, J.,

dissenting).

76 HEDLUND V. RYAN

1013859 (9th Cir. March 12, 2014); see also Poyson, 743

F.3d at 1187–88 (Kozinski, C.J., joined by eleven other

judges, dissenting from the denial of rehearing en banc

because of a similar Eddings issue).

Lastly, the Arizona Supreme Court did not remedy its

Eddings violation by reweighing the aggravating

circumstance of pecuniary gain against the aggregate

mitigating evidence. Because the Court had already

determined that evidence of Hedlund’s abusive childhood

was not a mitigating factor (because it was not causally

connected to his criminal conduct and, therefore in

accordance with Ross, not relevant), that evidence was not

considered in the “minimal mitigating evidence” that the

court reweighed against the aggravating circumstance of

pecuniary gain. McKinney, 917 P.2d at 1231. The Arizona

Supreme Court unconstitutionally applied the causal nexus

test to screen out Hedlund’s evidence of childhood abuse and

family background.6

6

Whether Hedlund must also show actual prejudice for the writ to issue

is an unsettled question in the Ninth Circuit. Compare Stokley v. Ryan,

705 F.3d 401, 404 (9th Cir. 2012) (applying harmless error review to the

Arizona Supreme Court’s alleged Eddings violation), and Landrigan v.

Stewart, 272 F.3d 1221, 1230 & n.9 (9th Cir. 2001) (applying harmless

error review to the state court’s failure to consider the defendant’s alleged

intoxication and past history of drug use as a nonstatutory mitigating

factor), adopted by Landrigan v. Schriro, 501 F.3d 1147 (9th Cir. 2007)

(en banc) (order), with Williams v. Ryan, 623 F.3d 1258, 1270–72 (9th Cir.

2010) (granting habeas relief for an Eddings violation without conducting

harmless error analysis), and Styers, 547 F.3d at 1035–36 (same). The

issue is also the subject of a split among other circuits. Compare Bryson

v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999) (collecting cases from

multiple circuits applying harmless error review), with Nelson v.

Quarterman, 472 F.3d 287, 314–15 (5th Cir. 2006) (en banc) (declining

to apply harmless error review).

HEDLUND V. RYAN 77

III.

During sentencing, defense counsel presented expert

testimony describing Hedlund’s alcoholism and the

psychological effects of his abusive childhood. In particular,

Dr. Holler testified that Hedlund suffered from post-traumatic

stress disorder (PTSD), alcohol dependence, and depression.

Dr. Holler also testified that because Hedlund was constantly

seeking acceptance, he was susceptible to engaging in

criminal activity to demonstrate loyalty to his family.

However, Judge Sheldon did not find the evidence presented

by Dr. Holler and Dr. Shaw, Hedlund’s other expert witness,

credible. Dr. Holler’s evidence was not credited because:

(1) he did not raise PTSD in his initial report, instead

announcing it for the first time while testifying; (2) some of

the information was self-reported by Hedlund; and (3) some

of the conclusions were based on an erroneous presentence

report. Dr. Shaw’s evidence was not credited because his

information came from Hedlund, who had a motive to lie

about the extent of his alcohol consumption, and his

statements conflicted with those of Hedlund’s sisters as well

as a presentence report from an earlier conviction.

Hedlund claimed before the state PCR court that his trial

counsel’s assistance was constitutionally deficient during the

penalty phase because counsel failed to present competent

expert testimony that Hedlund suffered from brain damage

that affected his behavior at the time of the offenses.

Hedlund offered a report from Dr. Walter, a

neuropsychologist, and requested a hearing at which Dr.

Walter could testify. The PCR court denied Hedlund’s

request for an evidentiary hearing, concluding that the

opinions of Hedlund’s sentencing phase experts were

“substantially similar to those of Dr. Walter’s” and that “it

78 HEDLUND V. RYAN

was adequately informed of this information through Dr.

Holler and Dr. Shaw’s opinions.” State v. Hedlund, No. CR

1991-090926, Minute Entry at 6 (Ariz. Super. Ct. June 1,

2001).

The majority incorrectly frames the issue as whether the

state PCR court’s finding that the evidence was “substantially

similar” is an unreasonable determination of fact. If the

sentencing court had credited the evidence, but found it

insufficiently mitigating, this would be the correct inquiry.

However, here, the sentencing court wholly discredited the

expert mental health evidence because the sources underlying

each item were questionable. Because Hedlund’s counsel had

presented unreliable expert testimony, it was as if he had

presented none at all. Thus, the only relevant inquiry for the

state PCR court was whether Dr. Walter’s report was also so

unreliable that it (or a similar report procured by competent

counsel) would have been rejected by the sentencing court.

The state PCR court did not engage in this analysis.

“An unreasonable application of Supreme Court

precedent occurs when a ‘state-court decision . . . correctly

identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.’” Libberton v.

Ryan, 583 F.3d 1147, 1161 (9th Cir. 2009) (quoting Williams

v. Taylor, 529 U.S. 362, 407–08 (2000)). Because the state

court unreasonably applied Strickland by failing to address

the claim of ineffective assistance of counsel presented, and

rejected Hedlund’s request to develop the record as to this

issue, Hedlund is entitled to an evidentiary hearing on this

claim. See Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012)

(ineffective assistance of counsel claims “often require

investigative work” and “often turn[] on evidence outside the

trial record”); see also Cullen v. Pinholster, 131 S. Ct. 1388,

HEDLUND V. RYAN 79

1400–01 (2011) (citing Schriro v. Landrigan, 550 U.S. 465,

473 (2007), for the proposition that “district courts, under

AEDPA, generally retain the discretion to grant an

evidentiary hearing” and noting that “[s]ection 2254(e)(2)

continues to have force where § 2254(d)(1) does not bar

federal habeas relief”); Siripongs v. Calderon, 35 F.3d 1308,

1310 (9th Cir. 1994) (“In a capital case, a habeas petitioner

who asserts a colorable claim to relief, and who has never

been given the opportunity to develop a factual record on that

claim, is entitled to an evidentiary hearing in federal court.”).

IV.

A.

Before Hedlund’s trial began, his trial counsel and the

prosecutor were engaged in plea negotiations, which resulted

in two proposed plea agreements. The first plea agreement

would have allowed Hedlund to plead guilty to second-degree

murder for his involvement in the death of Mertens and to

theft with a prior for his involvement in the death of McClain.

This plea agreement was presented to and rejected by Judge

Sheldon on September 18, 1992. Judge Sheldon rejected the

agreement because he wanted the offenses to which Hedlund

would plead guilty to reflect greater accountability for the

McClain homicide.7 To give the parties an opportunity to

reach a second plea that addressed his concerns, Judge

7

Under Arizona law, the court “may, in its sole discretion, participate

in settlement discussions” by directing counsel to “participate in a good

faith discussion with the court” to reach a resolution that “conforms to the

interests of justice.” Ariz. R. Crim. P. 17.4. By contrast, Federal Rule of

Criminal Procedure 11(c)(1) expressly mandates that the district court

“must not participate” in plea agreement discussions.

80 HEDLUND V. RYAN

Sheldon granted a two-week continuance. The week before

the trial was scheduled to begin, the parties were in the final

stages of a second plea agreement that addressed Judge

Sheldon’s concerns. Under the second proposed plea

agreement, Hedlund would have pled guilty to the second-

degree murder of Mertens, and to two felonies—theft and

burglary—in connection with McClain’s death. At this point

in the proceedings, Hedlund’s primary goal was to avoid the

death penalty, which the second plea agreement

accomplished.

On Tuesday, October 6, 1992, a week before trial was to

begin, Hedlund’s counsel and the prosecutor called Judge

Sheldon to clarify what might be appropriate for the second

plea agreement. Judge Sheldon’s deadline for the parties to

appear to discuss the second plea agreement with the court

was two days later, on Thursday, October 8. The prosecutor

set a deadline for Hedlund to accept the second plea

agreement by Friday, October 9. But instead of presenting

this second plea agreement to Judge Sheldon or accepting the

prosecutor’s offer, Hedlund’s trial counsel called the court at

the end of the day on October 8 to ask Judge Sheldon to

recuse himself, because he believed that the judge was biased

against Hedlund. Judge Sheldon refused defense counsel’s

request, and the deadline to discuss the second plea

agreement expired without any further communication from

Hedlund’s counsel. The next day, Hedlund’s counsel filed a

motion to recuse Judge Sheldon, and the prosecutor’s second

plea offer expired. Another judge held a hearing on the

recusal motion four days later and denied the motion. Voir

dire for Hedlund’s trial began that same day.

Hedlund claims that his trial counsel was ineffective in

the plea process. The last reasoned court decision addressing

HEDLUND V. RYAN 81

this issue is the Arizona Superior Court’s denial of Hedlund’s

petition for post-conviction relief. The state PCR court’s

denial of Hedlund’s ineffective assistance during plea

negotiations claim was an unreasonable application of clearly

established federal law as determined by the Supreme Court.

See 28 U.S.C. § 2254(d)(1).

B.

“[C]riminal justice today is for the most part a system of

pleas, not a system of trials. . . . [T]he right to adequate

assistance of counsel cannot be defined or enforced without

taking account of the central role plea bargaining plays in

securing convictions and determining sentences.” Lafler v.

Cooper, 132 S. Ct. 1376, 1388 (2012). “Ninety-seven percent

of federal convictions and ninety-four percent of state

convictions are the result of guilty pleas.” Id. The majority

correctly identifies the two-part Strickland test applicable to

ineffective assistance claims in plea negotiations and properly

emphasizes that under AEDPA, review of the state court’s

application of Strickland is “doubly deferential.” See also

Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Where the

majority fails, however, is in its examination of the state PCR

court’s actual reasons for rejecting Hedlund’s claim.

After describing Arizona’s version of Strickland, the state

PCR court rejected Hedlund’s ineffective assistance claim in

four sentences. It said:

Counsel claimed that Defendant’s trial

attorney was ineffective in handling his plea

negotiations. A hearing was conducted on

this matter in the trial court and Defendant’s

attorney properly, aggressively and

82 HEDLUND V. RYAN

professionally pursued the issue. There was

no ineffective assistance of counsel in the

court’s rejection of the plea offer presented to

it. As the Court noted to counsel below, any

plea which had lacked accountability for the

McClain homicide would have been rejected

by the Court.

State v. Hedlund, No. CR 1991-090926, Minute Entry at 3–4

(Ariz. Super. Ct. June 1, 2001) (emphasis added). This ruling

is an unreasonable application of clearly established Supreme

Court precedent.

Contrary to the state PCR court’s statement, a hearing was

not conducted by the trial court on either the issue of

ineffective assistance of counsel or the plea negotiations and

second plea agreement. There was, however, a hearing on the

motions for recusal and for change of judge. By incorrectly

stating that the hearing regarding the motion to recuse Judge

Sheldon was a hearing on the ineffective assistance claim, the

state PCR court applied the correct law to the wrong facts.

Based on the recusal hearing, the state PCR court concluded

that defense counsel “properly, aggressively and

professionally pursued the issue.” But defense counsel’s

efforts to transfer Hedlund’s case to another judge were

irrelevant to evaluating whether counsel performed

deficiently by abandoning the second plea agreement.

Also, even if the state PCR court had applied Strickland

to the correct facts, its conclusion that Hedlund’s trial

counsel’s performance was not constitutionally deficient was

unreasonable. To prove ineffective assistance during the plea

phase of a prosecution, Hedlund “must demonstrate gross

error on the part of counsel.” Turner v. Calderon, 281 F.3d

HEDLUND V. RYAN 83

851, 880 (2002) (quoting McMann v. Richardson, 397 U.S.

759, 772 (1970)). Hedlund’s trial counsel committed gross

error when he allowed the second offer of a plea agreement,

which would have saved Hedlund from the death penalty, to

expire even though Hedlund had told him he was willing to

accept the plea. The majority’s cursory dismissal of this issue

and focus on trial counsel’s “tactical” decision to move for a

recusal are misguided.

The majority, like the state PCR court, misreads the

record. The majority concludes that the record is unclear as

to whether a second plea offer was still on the table on

Thursday, October 8—the date that defense counsel first

asked Judge Sheldon to recuse himself and allowed the

court’s plea deadline to expire. Because of this purported

lack of clarity, the majority dismisses Hedlund’s contention

that the second plea offer was still available and that his

counsel’s decision to let the second plea offer expire and

expose Hedlund to the death penalty was ineffective

assistance. The record does reflect that on Tuesday, October

13, when the parties were arguing defense counsel’s motion

to recuse, the prosecutor said, “There is no plea offer to Mr.

Hedlund as of today. . . . We were talking Tuesday afternoon

[October 6] and [defense counsel] advised me that Mr.

Hedlund turned down the latest offer which is in his pleading

today. I said, fine. If we don’t plead something by Friday,

that is it.” Evidentiary Hr’g Tr. at 56–57, Oct. 13, 1992. But

it is wrong to conclude from this statement alone that the

second plea agreement had been unconditionally rejected by

the time defense counsel moved to recuse Judge Sheldon.

When he moved to recuse Judge Sheldon, defense counsel

had a plea offer in hand that would have saved Hedlund from

84 HEDLUND V. RYAN

the death penalty.8 The record, however, is ambiguous as to

whether the “latest offer” the prosecutor referred to during the

recusal hearing was the second plea offer or a different offer.

At other times during the hearing, the prosecutor, Judge

Sheldon, and Judge Sheldon’s assistant each said that they

believed the parties were going to come in on Thursday,

October 8 to discuss the latest plea agreement with the judge.

Thus, it is unlikely that the “latest plea” had been rejected on

Tuesday, October 6 if the parties, as of Wednesday, were

planning to meet with Judge Sheldon to discuss that very plea

proffer. Also, as of October 9, defense counsel stated in his

motion to recuse Judge Sheldon that “Hedlund and the State

have come to a [sic] agreement which is within the range

suggested by the court.” Lastly, on the same day that defense

counsel told the prosecutor that the “latest offer” had been

rejected, the parties phoned the court to clarify what would be

a more appropriate plea. The parties were supposed to come

in on Thursday, October 8 to further discuss the second plea

agreement with Judge Sheldon. Defense counsel’s failure to

accept the proposed second plea offer, or, at the very least,

meet with Judge Sheldon and the prosecutor to further discuss

the offer on October 9 as they had agreed, was deficient

performance. To conclude otherwise is an unreasonable

application of Strickland.

The test for deficient performance is “whether counsel’s

assistance was reasonable considering all the circumstances.”

8

The record is not ambiguous as to whether Hedlund had an offer in

hand when his attorney moved to recuse Judge Sheldon. While insisting

that the record is unclear, the majority accepts that defense counsel had an

offer in hand to justify its conclusion that defense counsel’s actions were

strategic. Therefore, there is no explanation, whether reasonable or not,

that supports defense counsel’s abandonment of plea negotiations.

HEDLUND V. RYAN 85

Strickland, 466 U.S. at 688. Contrary to the majority’s

position, defense counsel’s tactical decision to move for

recusal does not excuse his abandonment of the second plea

offer negotiations.9 Defense counsel knew that Hedlund’s

primary goal in pleading guilty to lesser charges was to avoid

a capital sentence, yet when presented with a plea that would

have resulted in a sentence of a term of years, defense counsel

irresponsibly shifted all of his efforts to the recusal motion

and allowed the second plea offer to expire. The majority

portrays the decision to abandon the plea negotiations and

pursue the recusal motion as one strategic choice subject to

the doubly-deferential standard under Strickland and

AEDPA. But the majority provides no reason as to why it

was strategic for Hedlund’s counsel to drop one and pursue

the other, rather than pursue both concurrently. The record

contains no articulable reason as to why abandoning the plea

negotiations, after Hedlund told counsel he was willing to

accept the latest offer, was strategic.

The majority’s explanation is unconvincing. If defense

counsel strategically ended plea negotiations in Judge

Sheldon’s court, why did he cease all negotiations with Judge

Sheldon and the prosecutor, thus allowing the offer—which

according to the majority he sought to preserve—to expire?

9

While counsel’s motion to have Hedlund’s case moved before a

different judge was a tactical decision, his failure to timely respond to the

prosecutor’s second plea offer was not. Counsel’s decision to bring a

recusal motion is not at issue here. Thus, the majority’s thorough analysis

of why counsel’s decision to move for recusal was within the “wide range

of reasonable professional assistance” is off point. Strickland, 466 U.S.

at 689. The relevant inquiry, instead, is whether defense counsel’s

abandonment of ongoing plea negotiations with the prosecutor and the

judge, when a second plea agreement was nearly complete, constituted

deficient performance.

86 HEDLUND V. RYAN

The only explanation is error, amounting to deficient

performance. Defense counsel’s failure to attend the plea

discussions with the prosecutor scheduled before Judge

Sheldon suggests that negligence, rather than strategy, was at

play. Defense counsel’s failures were especially egregious

because trial was to begin only a few days later and the

chances of another plea offer were slim to nil.

“During all critical stages of a prosecution, which must

include the plea bargaining process, it is counsel’s ‘dut[y] to

consult with the defendant on important decisions and to keep

the defendant informed of important developments in the

course of the prosecution.’” Nunes v. Mueller, 350 F.3d

1045, 1053 (9th Cir. 2003) (quoting Strickland, 466 U.S. at

688). It is unknown if Hedlund knew that defense counsel

had abandoned the plea bargaining process in favor of trying

to recuse Judge Sheldon. By abandoning plea negotiations

merely as a consequence of pursuing the recusal motion, and

not as the result of an informed and separate decision, defense

counsel failed to provide constitutionally effective counsel to

Hedlund.

The state PCR court’s conclusion that Hedlund did not

suffer prejudice because “any plea which had lacked

accountability for the McClain homicide would have been

rejected by the Court,” was also an unreasonable application

HEDLUND V. RYAN 87

of established Supreme Court precedent.10 To succeed on his

ineffective assistance claim, Hedlund must also show that:

but for the ineffective advice of counsel there

is a reasonable probability that the plea offer

would have been presented to the court (i.e.,

that the defendant would have accepted the

plea and the prosecution would not have

withdrawn it in light of intervening

circumstances), that the court would have

accepted its terms, and that the conviction or

sentence, or both, under the offer’s terms

would have been less severe than under the

judgment and sentence that in fact were

imposed.

Lafler, 132 S. Ct. at 1385. “[I]t is necessary to show a

reasonable probability that the end result of the criminal

process would have been more favorable by reason of a plea

to a lesser charge or a sentence of less prison time.” Missouri

v. Frye, 132 S. Ct. 1399, 1409 (2012). “A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694. If the second

plea offer had been accepted, Hedlund would have been

sentenced to a term of years and avoided the death penalty.

The majority’s explanation to support its view that Judge

10

The state PCR court’s decision was also contrary to Arizona law

because “a petitioner is not required to prove that the trial court would

have accepted the plea agreement in order to establish prejudice resulting

from counsel’s deficient advice.” State v. Donald, 10 P.3d 1193, 1202

(Ariz. Ct. App. 2000) (holding that “such a requirement ‘presents inherent

problems of proof,’ and that it would be ‘unfair and unwise to require

litigants to speculate as to how a particular judge would have acted under

particular circumstances’”) (citations omitted).

88 HEDLUND V. RYAN

Sheldon would not have accepted the second plea agreement

is flawed.11

First, the majority concludes that it is doubtful whether

Judge Sheldon would have found that the second plea

agreement “provided sufficient accountability for the

McClain homicide.” But the excerpts from the hearing on

defense counsel’s motion to recuse that the majority cites do

not support this conclusion. Instead, they demonstrate Judge

Sheldon’s concern regarding a second-degree murder charge

under the felony murder rule. In the first plea offer, Hedlund

would plead to second-degree murder for the homicide of

Mertens, not McClain. Judge Sheldon’s concern with the

second-degree murder plea was not related to Hedlund’s

culpability in the McClain homicide. Instead, he was

concerned with the legal feasibility of Hedlund pleading

guilty to second-degree murder under Arizona’s felony

murder rule. See Ariz. Rev. Stat. § 13-1105(A)(2). Judge

Sheldon was “very surprised” by the first plea agreement

because he had doubts that the parties would be able “to

establish a factual basis for Second Degree Murder to a

Felony Murder charge . . . [considering that] there are no

11

The majority also relies on arguments not found in the state PCR

court’s decision to conclude that counsel’s performance was not deficient.

Although we are required to evaluate all reasonable arguments that a state

court could have relied upon when assessing a state high court’s summary

denial of original habeas petitions, see Richter, 131 S. Ct. at 784, we

should not evaluate such hypothetical arguments when assessing a state

court’s denial of a habeas petition that actually relied on a lower court’s

reasoning. Instead, we “must ‘look through’ that judgment to the last

reasoned state-court decision on the merits.” Cannedy v. Adams, 706 F.3d

1148, 1157 (9th Cir. 2013). Thus, we should look only to the state PCR

court’s actual reasoning to determine whether it was an unreasonable

application of clearly established Supreme Court case law.

HEDLUND V. RYAN 89

lesser included offenses to Felony Murder.” Evidentiary Hr’g

Tr. at 37–38, Oct. 13, 1992. If the second plea agreement had

been presented to the court, however, there is a reasonable

probability that Judge Sheldon would have accepted it even

with the second-degree murder charge for the Mertens

homicide. In fact, Judge Sheldon sentenced Hedlund based,

in part, on a second-degree murder conviction under Arizona

law. Thus, because the facts permitted the jury to convict

Hedlund of second-degree murder, Judge Sheldon’s concern

over the legal feasibility of the felony murder rule would not

have barred his approval of the second plea agreement.

Second, the record shows that any accountability concerns

that Judge Sheldon had regarding Hedlund’s culpability in the

McClain homicide would have been likely addressed with the

addition of the burglary charge in the second plea offer.

Although Judge Sheldon had “not made up [his] own mind,”

at the time of the recusal hearing as to whether burglary

would be sufficient to address his culpability concerns, he did

“believe[] at the very least, what [counsel] should be looking

at would be Burglary in the First Degree which would be

entry in the home armed with a weapon either as a dangerous

offense or non-dangerous.” Id. at 32. While both sides can

speculate about whether the burglary charge would have

definitively satisfied Judge Sheldon’s accountability

concerns, the record contains enough evidence to raise doubt,

and undermine confidence, as to whether Hedlund would

have received a capital sentence if defense counsel had

presented the second plea agreement to the court.

Third, the majority’s conclusion that Judge Sheldon’s due

process concerns would have doomed the second plea

agreement is incorrect. Judge Sheldon’s concern regarding

disparate sentences was a reason that he rejected the first plea

90 HEDLUND V. RYAN

agreement, not a reason that he may have rejected the second

plea agreement. Unlike the first plea agreement, the second

plea agreement included a first-degree burglary charge which,

according to petitioner’s counsel at oral argument, would

have exposed Hedlund to approximately fourteen more years

of prison time than the first plea agreement. Also, disparate

sentences between McKinney and Hedlund were appropriate

as their culpability, in at least the Mertens homicide, differed.

In fact, the jury convicted McKinney of first-degree murder,

and Hedlund of second-degree murder, for the Mertens

homicide.

As to Hedlund’s willingness to accept the second plea

offer, there is no evidence in the record that Hedlund himself

did not want to enter a plea in front of Judge Sheldon. The

only evidence of Hedlund’s input into defense counsel’s

decision to abandon the second plea offer and pursue the

motion to recuse is that Hedlund “fe[lt] that [the] court ha[d]

become biased against him.” But Hedlund’s feelings about

Judge Sheldon were insufficient to justify defense counsel’s

decision to abandon the plea negotiations altogether and

instead move for recusal.

Finally, the ultimate question is whether there is a

“reasonable probability” that Hedlund would have been

spared the death penalty had defense counsel presented the

second plea agreement to Judge Sheldon. See Str

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