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, ORDER AND

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 March 4, 2016

Before: Kim McLane Wardlaw, Carlos T. Bea,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Concurrence by Judge Bea;

Partial Concurrence and Partial Dissent by Judge Wardlaw

2 HEDLUND V. RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel withdrew an opinion filed April 24, 2014, and

filed a superseding opinion reversing in part and affirming in

part the district court’s denial of a habeas corpus petition and

remanding with instructions to grant the petition with respect

to the petitioner’s death sentence.

The panel held that the district court properly denied

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

visible leg brace as a security measure during trial; (2) the use

of dual juries for the petitioner and his co-defendant; (3) juror

bias; (4) ineffective assistance of counsel during the plea

process; and (5) ineffective assistance of counsel during the

penalty phase.

Applying McKinney v. Ryan, No. 09-99018, 2015 WL

9466506 (9th Cir. Dec. 29, 2015) (en banc), the panel held

that the Arizona Supreme Court’s application of a “causal

nexus” test – whereby not 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

– was contrary to clearly established federal law, and that the

error was not harmless.

Judge Bea concurred in the majority opinion in full

because the panel is bound to follow McKinney, whose

analysis of the Eddings issue he believes conflicts with

*

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

Supreme Court precedent requiring this court to presume that

state courts know and follow the law.

Concurring in part and dissenting in part, Judge Wardlaw

disagreed with the majority’s disposition of the petitioner’s

claims of unconstitutional shackling during trial and

ineffective assistance of counsel during the plea process and

penalty phase.

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.

ORDER

The opinion filed April 24, 2014, and reported at 750 F.3d

793, is withdrawn. Because the court’s opinion is withdrawn,

Appellant’s petition for rehearing and petition for rehearing

en banc is moot. A superseding opinion will be filed

concurrently with this order. Further petitions for rehearing

and petitions for rehearing en banc may be filed.

4 HEDLUND V. RYAN

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.

The relevant state court decision, relating to Hedlund’s

claims regarding (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; and

(5) counsel’s performance during the penalty phase, 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.1 See 28 U.S.C.

§ 2254(d).

1

Judge Wardlaw dissents from Parts I, IV, and V of this disposition,

stating that she has “previously explained [her] disagreement with the

majority’s disposition of Hedlund’s claims of unconstitutional shackling

during trial and ineffective assistance of counsel during the plea process

and penalty phase.” Slip op. at 66 (Wardlaw, J., concurring in part and

dissenting in part) (citing Hedlund v. Ryan, 750 F.3d 793, 831–43 (9th Cir.

2014) (Wardlaw, J., concurring in part and dissenting in part)). In our

prior opinion, we responded to her disagreement. Hedlund, 750 F.3d at

811 n.15, 811–12, 813 n.16, 817, 820, 823 n.25. Similar to Judge

Wardlaw’s statement, we see no need to repeat our disagreement with her

prior dissent here.

HEDLUND V. RYAN 5

However, the Arizona Supreme Court applied a “causal

nexus” test, whereby not 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. See McKinney v. Ryan, No. 09-99018, 2015 WL

9466506 (9th Cir. Dec. 29, 2015) (en banc). Therefore, such

decision was contrary to clearly established federal law. See

28 U.S.C. § 2254(d). We must reverse the district court and

remand with instructions to grant the petition with respect to

Hedlund’s sentence.2

FACTS AND PROCEDURAL HISTORY

Findings of fact in the last reasoned state court decision

are entitled to a presumption of correctness, rebuttable only

by clear and convincing evidence. 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). Therefore, we adopt

the statement of facts as presented by the Arizona Supreme

Court in its 1996 opinion on consolidated direct appeal.

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

2

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).

6 HEDLUND V. RYAN

who happened to be home during a burglary

and Hedlund stated that anyone he found

would be beaten in the head.

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

HEDLUND V. RYAN 7

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.

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

8 HEDLUND V. RYAN

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 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 at 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.

HEDLUND V. RYAN 9

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

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,

found Hedlund not entitled to habeas relief, 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.

10 HEDLUND V. RYAN

STANDARD OF REVIEW

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

or deny a petition for 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

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 [28 U.S.C.] § 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, 562 U.S. 86, 100 (2011) (internal

quotation marks and citation omitted). “[T]he 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.”

HEDLUND V. RYAN 11

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

quotation marks and alterations 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].” Harrington, 562 U.S. at 101 (alterations

omitted) (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. 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 102.

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

12 HEDLUND V. RYAN

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 thirdhand from a

subordinate officer, who heard it from an inmate. McKinney

was specifically identified in the plot. The other individual

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

specifically named in the discussion on the record.3 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 its

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

3

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.

HEDLUND V. RYAN 13

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

the jurors would not see the Defendants walking stiff-legged

in the braces.4

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

4

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.”

14 HEDLUND V. RYAN

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.

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.”5 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

5

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.

HEDLUND V. RYAN 15

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

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.6

6

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

statement (misattributing 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.

16 HEDLUND V. RYAN

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

only where justified by an essential state interest specific to

each trial.”7 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

7

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) (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “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.

HEDLUND V. RYAN 17

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, was not

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 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] fail[ed] 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

18 HEDLUND V. RYAN

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, 349

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

matter normally left to the discretion of prison

administrators.”).

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

HEDLUND V. RYAN 19

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, 341 F.3d at 901 n.1,

the language stating that a court may not rely upon “the

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

20 HEDLUND V. RYAN

could be covered in a single afternoon.8 The court set forth

detailed procedures to be used at trial to avoid any problems.9

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. 1992) (en banc). 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

8

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. Id. 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.

9

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.

HEDLUND V. RYAN 21

reversed the Court of Appeals,10 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 empanel 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. at 539. The Court went on to

10

At the same time, the Arizona Supreme Court also reversed its earlier

decision in State v. Lambright, 673 P.2d 1 (Ariz. 1983) (en banc), which

had found that the use of dual juries violated state law.

22 HEDLUND V. RYAN

say that 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.

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 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.”).

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

did not prevent Hedlund from demonstrating lack of motive

HEDLUND V. RYAN 23

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

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

24 HEDLUND V. RYAN

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 was 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

emotional involvement based on [the Juror’s] highly

HEDLUND V. RYAN 25

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.

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, 230

(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 district attorney’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 district attorney; and no evidence suggested a “sinister or

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

habeas review, the federal district court found the trial court’s

bias hearing insufficient and granted relief, which the Second

Circuit affirmed.

26 HEDLUND V. RYAN

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

HEDLUND V. RYAN 27

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 the

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

“presumptively correct” and could not 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. Id. 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.

28 HEDLUND V. RYAN

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 we

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.” 151 F.3d 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 the question whether

she could be impartial with, “Yes, I think I could.”).11

11

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, we noted the difference between a juror who is somewhat

indirect in their responses (e.g. 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 row to

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

HEDLUND V. RYAN 29

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.)

(noting that the “Supreme Court has never explicitly adopted

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

315 F.3d 1062 (9th Cir. 2002). Thus, Hedlund’s claim fails

on grounds of implied bias.12

Id. at 1111, 1114. We 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. at 1114.

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 v. Spain, 464 U.S. 114, 120 (1983).

12

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

30 HEDLUND V. RYAN

Although we have presumed bias on a rare occasion, we

have 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.

HEDLUND V. RYAN 31

IV. Ineffective Assistance of Counsel During Plea

Process13

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

13

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, 537 U.S. at 336, we

address it.

32 HEDLUND V. RYAN

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 “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.

HEDLUND V. RYAN 33

Second, if counsel’s performance was 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 Mirzayance,

556 U.S. at 123; Bell v. Cone, 535 U.S. 685, 698–99 (2002).

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.14

14

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.

34 HEDLUND V. RYAN

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 impanel

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 penalty

in this case.

HEDLUND V. RYAN 35

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,

36 HEDLUND V. RYAN

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.15 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

15

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.

HEDLUND V. RYAN 37

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 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. 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.

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 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

38 HEDLUND V. RYAN

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

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

HEDLUND V. RYAN 39

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 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.

40 HEDLUND V. RYAN

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

in his motion to recuse. 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.

HEDLUND V. RYAN 41

V. Ineffective Assistance of Counsel During Penalty

Phase16

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.”

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

16

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, 537 U.S. at 336, we

address it.

42 HEDLUND V. RYAN

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

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

HEDLUND V. RYAN 43

“totally psychotic,” Hedlund did have “neurological

impairments which impaired his judgment.”

Dr. Charles Shaw, 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

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.

44 HEDLUND V. RYAN

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

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.

HEDLUND V. RYAN 45

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. See e.g., Cullen v. Pinholster,

563 U.S. 170, 189 (2011). Under Strickland, we must first

ask whether “counsel’s assistance was reasonable considering

all the circumstances.” Strickland, 466 U.S. at 688. 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

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

46 HEDLUND V. RYAN

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.

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

HEDLUND V. RYAN 47

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

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 presentence report. 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. They simply speak to the weight

afforded the experts’ opinions in determining mitigation—

weight based on reliability and credibility. To the extent Dr.

48 HEDLUND V. RYAN

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.

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.

VI. 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

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, 537 U.S. at 336, we

address it.

HEDLUND V. RYAN 49

and credible. However, the court found that the mitigating

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

use) did not outweigh the 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 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 applied an

unconstitutional causal nexus test to Hedlund’s

mitigating evidence.

We now consider whether the Arizona Supreme Court

applied an unconstitutional causal nexus test in affirming

Hedlund’s death sentence on its independent review of

Hedlund’s death sentence. We first look at our precedent

regarding the role mitigation evidence plays in sentencing

decisions. We then apply our recent decision in McKinney v.

50 HEDLUND V. RYAN

Ryan, No. 09-99018, 2015 WL 9466506 (9th Cir. Dec. 29,

2015) (en banc).

1. A sentencing court may not refuse to consider any

relevant mitigating evidence.

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

Court held:

[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 so 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 . . . .

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 capital case where the trial judge stated

that he could not consider mitigating evidence of the

HEDLUND V. RYAN 51

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” from criminal responsibility. Id. at

113. The Supreme Court reversed, explaining:

Just 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 [it] may not give it

no weight by excluding such evidence from

[its] consideration.

Id. at 113–15.19

For a period of a little over 15 years, in violation of

Eddings, the Arizona Supreme Court articulated and applied

a “causal nexus” test in capital cases. The test forbade giving

weight to nonstatutory mitigating evidence, such as family

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 (alterations 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

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

319 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S.

304 (2002).

52 HEDLUND V. RYAN

background, unless such evidence was causally connected to

the crime.20 See, e.g., State v. Wallace, 773 P.2d 983, 986

(Ariz. 1989) (en banc) (“A difficult family background is a

relevant mitigating circumstance if a defendant can show that

something in that background had an effect or impact on his

behavior that was beyond the defendant’s control.”); accord

State v. Ross, 886 P.2d 1354, 1363 (Ariz. 1994) (en banc) (“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.’” (quoting Wallace,

773 P.2d at 986)).

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.”).21 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) (per curiam). The Court

20

Arizona law provides five statutory mitigating factors, as well as a

catchall nonstatutory mitigating factor encompassing “any factors

proffered by the defendant or the state that are relevant in determining

whether to impose a sentence less than death, including any aspect of the

defendant’s character, propensities or record and any of the circumstances

of the offense.” Ariz. Rev. Stat. § 13-751(G). Eddings and Lockett apply

only to nonstatutory mitigating evidence. See McKinney, 2015 WL

9466506, at *9.

21

Following the Supreme Court’s decision in Tennard, the Arizona

Supreme Court abandoned its causal nexus test. See State v. Newell,

132 P.3d 833, 849 (Ariz. 2006) (en banc); State v. Anderson, 111 P.3d

369, 391–92 (Ariz. 2005) (en banc).

HEDLUND V. RYAN 53

“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), overruled on other grounds by McKinney,

2015 WL 9466506, at *17.

In the past, to determine whether the Arizona Supreme

Court used its causal nexus test, we applied a “clear

indication” rule: We could find Eddings error only if there

was a clear indication in the record that the court had refused,

as a matter of law, to treat nonstatutory mitigation evidence

as relevant unless it had some effect on the petitioner’s

criminal behavior. See Schad, 671 F.3d at 724. However, in

McKinney, we determined that the “clear indication” rule was

an “inappropriate and unnecessary gloss on the deference

already required under § 2254(d).” 2015 WL 9466506, at

*17.22

2. Application of the causal nexus test in this case.

The question (whether the Arizona Supreme Court

applied the unconstitutional causal nexus test in sentencing

Hedlund) has already been answered in the affirmative by our

en banc court in McKinney, 2015 WL 9466506, at *17–20.

As companion cases, the Arizona Supreme Court reviewed

the death sentences of both Hedlund and McKinney in the

same opinion. See McKinney, 917 P.2d at 1214. In doing so,

the Arizona Supreme Court intertwined its analysis for both

Hedlund and McKinney, requiring the same outcome

22

We express no opinion as to how to apply McKinney in future Arizona

capital cases from the suspect time period.

54 HEDLUND V. RYAN

regarding this issue. Because we are bound by our court’s

decision in McKinney, we follow its conclusion that the

Arizona Supreme Court applied the unconstitutional causal

nexus test in affirming Hedlund’s sentence.

The Arizona Supreme Court used much of the same

reasoning in affirming the sentences for Hedlund and

McKinney. First, the court cited to its prior opinion in Ross

to support its conclusion that Hedlund’s and McKinney’s

difficult family background and childhood abuse did not

necessarily have substantial mitigating weight. See

McKinney, 917 P.2d at 1227 (Hedlund); id. at 1234

(McKinney). In McKinney, we noted regarding Hedlund’s

sentence:

The [Arizona Supreme Court] first affirmed

Hedlund’s death sentence, writing, “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. See

State v. Ross, . . . 886 P.2d 1354, 1363

(1994).” McKinney, 917 P.2d at 122[7]. As

we pointed out above, the pin citation to Ross

is a citation to the precise page on which the

Arizona Supreme Court had two years earlier

articulated its unconstitutional “causal nexus”

test for non-statutory mitigation.

2015 WL 9466506, at *18. Later, when discussing

McKinney’s sentence, we referred back to the Arizona

Supreme Court’s analysis of Hedlund’s sentence, in which it

HEDLUND V. RYAN 55

said: “As we noted in discussing Hedlund’s claim on this

same issue, a difficult family background, including

childhood abuse, does not necessarily have substantial

mitigating weight absent a showing that it significantly

affected or impacted the defendant’s ability to perceive,

comprehend, or control his actions. See State v. Ross, . . .

886 P.2d 1354, 1363 (1994)[.]” Id. at *19 (alterations in

original) (quoting McKinney, 917 P.2d at 1234).

Second, the Arizona Supreme Court adopted the

sentencing court’s analysis of the mitigation evidence for

both Hedlund and McKinney. For Hedlund, the sentencing

court determined “that none of [Hedlund’s] 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.” For McKinney,

the sentencing court similarly found that the mitigation

evidence did not “in any way affect[] [McKinney’s] conduct

in this case.” As we explained in McKinney, “[The

sentencing court’s] language . . . echoes the language of

Arizona’s statutory mitigator under Ariz. Rev. Stat. § 13-

703(G)(1). It also echoes the language used by the Arizona

Supreme Court to articulate the unconstitutional causal nexus

test applied to nonstatutory mitigation.” McKinney, 2015 WL

9466506, at *18.

Thus, in McKinney, we concluded that the Arizona

Supreme Court’s decision was contrary to Eddings, based in

part on (1) “the Arizona Supreme Court’s recital of the causal

nexus test for nonstatutory mitigation and its pin citation to

the precise page in Ross where it had previously articulated

that test,” and (2) “the factual conclusion by the sentencing

judge, which the Arizona Supreme Court accepted, that

56 HEDLUND V. RYAN

McKinney’s [mitigation evidence] did not ‘in any way

affect[] his conduct in this case.’” Id. at *20 (second

alteration in original). This same reasoning applies to the

Arizona Supreme Court’s decision for Hedlund.

Accordingly, we adopt our en banc court’s conclusion in

McKinney that the Arizona Supreme Court’s decision of

Hedlund’s claims was contrary to Eddings.23

Having determined that the Arizona Supreme Court

committed Eddings error, we next must decide whether such

error was harmless. See id. The harmless error standard on

habeas review provides that “relief must be granted” if the

error “had substantial and injurious effect” on the sentencing

decision. See Brecht, 507 U.S. at 623 (quoting Kotteakos,

328 U.S. at 776); McKinney, 2015 WL 9466506, at *21.

Again, we adopt our conclusion in McKinney. The Eddings

error (committed by the Arizona Supreme Court in this case)

had a “substantial and injurious effect” on Hedlund’s

sentence within the meaning of Brecht, and was, therefore,

not harmless. See McKinney, 2015 WL 9466506, at *21–22.

23

We note that a court is free to assign less weight to mitigating factors

that did not influence a defendant’s conduct at the time of 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.”). However, a court may not refuse to consider

mitigating evidence because it lacked a causal nexus to the crime. In sum,

a court may consider causal nexus in assessing the weight of mitigating

evidence, but not in assessing its relevance. The Arizona Supreme Court

has correctly recognized this in post-Tennard cases. See Newell, 132 P.3d

at 849 (“We do not require that a nexus between the mitigating factors and

the crime be established before we consider the mitigation evidence. But

the failure to establish such a causal connection may be considered in

assessing the quality and strength of the mitigation evidence.” (citation

omitted)).

HEDLUND V. RYAN 57

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, and (5) ineffective assistance of

counsel during the penalty phase. However, the district court

should have granted the petition with respect to Hedlund’s

sentence, based on Hedlund’s claim regarding (6) the Arizona

Supreme Court’s consideration of mitigating evidence under

Lockett, Eddings, and their progeny. Accordingly, we reverse

the district court’s judgment denying the writ of habeas

corpus. We remand with instructions to grant the writ with

respect to Hedlund’s sentence unless the state, within a

reasonable period, either corrects the constitutional error in

his death sentence or vacates the sentence and imposes a

lesser sentence consistent with law.

Each party shall bear its own costs on appeal.

REVERSED in part, AFFIRMED in part, and

REMANDED.

BEA, Circuit Judge, concurring:

I write separately to express my own views as to Part VI

of the majority opinion, which holds that the Arizona

Supreme Court applied a “causal nexus” test to Hedlund’s

nonstatutory mitigating evidence, in violation of Eddings v.

Oklahoma, 455 U.S. 104 (1982). Our about-face on this issue,

see Hedlund v. Ryan, 750 F.3d 793, 813–20 (9th Cir. 2014)

(finding no Eddings error), is solely the result of our court’s

58 HEDLUND V. RYAN

recent decision in McKinney v. Ryan, No. 09-99018, 2015

WL 9466506 (9th Cir. Dec. 29, 2015) (en banc). For the

reasons discussed at length in my McKinney dissent, id. at

*25–*45 (Bea, J., dissenting), I think our analysis of the

Eddings issue was wrong and conflicts with Supreme Court

precedent requiring us to “presum[e] that state courts know

and follow the law,” Woodford v. Visciotti, 537 U.S. 19, 24

(2002). I will not here rehash that dissent.

It is unfortunate that McKinney’s errors have determined

this case, because it is more difficult to find a true Eddings

violation here than it was in McKinney. As detailed below,

Judge Sheldon, the trial judge who sentenced both Hedlund

and McKinney to death, was crystal clear that he understood

Eddings’s mandate and considered all of Hedlund’s

mitigating evidence before imposing the death penalty.1

Judge Sheldon plainly did not commit Eddings error.

Judge Wardlaw disputes my interpretation of Judge

Sheldon’s statements during Hedlund’s sentencing hearing.

Partial concurrence at 66–69. To do so, she plucks a snippet

from the sentencing hearing that, in her view, shows that

Judge Sheldon applied an unconstitutional causal-nexus test

to exclude certain mitigating evidence from his consideration.

Id. at 67–68. However, this “smoking gun” evidence of an

Eddings violation demonstrates only that Judge Sheldon

considered whether there was a causal connection between

Hedlund’s proffered mitigating evidence and his crimes when

considering the existence of a statutory mitigating factor,

1

Although Hedlund and McKinney were tried together (albeit with

separate juries) and sentenced by the same trial judge, their sentencing

hearings took place on separate days a week apart.

HEDLUND V. RYAN 59

Ariz. Rev. Stat. § 13-751(G)(1),2 which was perfectly

permissible. See McKinney, 2105 WL 9466506, at *9 (“When

applied solely in the context of statutory mitigation under

[Ariz. Rev. Stat. § 13-751(G)(1)], the causal nexus test does

not violate Eddings.”). To dispel any doubts, I recount here

Judge Sheldon’s statements during Hedlund’s sentencing

hearing:

• Judge Sheldon first sentenced Hedlund for several non-

capital crimes before turning to the question whether

Hedlund was eligible for the death penalty for the

homicide of Jim McClain. Sentencing Hr’g Tr. 2–5.

Judge Sheldon concluded that the McClain homicide

made Hedlund eligible for the death penalty under the

Supreme Court decisions Enmund v. Florida, 458 U.S.

782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987).

Sentencing Hr’g Tr. 5–12.

• Judge Sheldon then “proceed[ed] to a discussion of the

aggravating or mitigating circumstances in this case.” Id.

at 12. He started by setting out the (correct) parameters of

his inquiry:

[T]he punishment must be tailored to a

defendant’s personal responsibility and moral

guilt. The sentence imposed should reflect a

reasoned, moral response to the defendant’s

background, character, and the crime.

Although the requirements of channeled or

guided discretion enunciated in Gregg v.

2

Arizona’s statute enumerating death-penalty aggravating and

mitigating factors was previously codified at Ariz. Rev. Stat. § 13-703. I

reference the statute’s current location, Ariz. Rev. Stat. § 13-751.

60 HEDLUND V. RYAN

Georgia, [428 U.S. 153 (1976),] which sought

consistent, rational application of the death

penalty, may appear in a superficial analysis

to be in conflict with an expansive reading of

Eddings v. Oklahoma[,] Lockett [v.] Ohio and

other cases which require individualized

sentences and consideration of all mitigating

evidence offered, these cases when read

together simply require the sentencing judge,

as the conscience of the community, to weigh

carefully, fairly, objectively, all of the

evidence offered at sentencing, recognizing

that not everyone who commits murder should

be put to death.

Id. at 12–13.

• Judge Sheldon then found that Arizona had established

two statutory aggravating factors, Ariz. Rev. Stat. § 13-

751(F)(2), (5), before he “move[d] to a consideration of

the mitigating factors.” Sentencing Hr’g Tr. 13–16. He

found that the facts and circumstances of this case ruled

out three statutory mitigating factors, Ariz. Rev. Stat.

§ 13-751(G)(3)–(5). Sentencing Hr’g Tr. 16–17.

• Judge Sheldon next considered Hedlund’s mitigating

evidence of mental retardation, alcohol and drug use, and

child abuse. He considered this evidence in the context of

two statutory mitigating statutory factors, Ariz. Rev. Stat.

§ 13-751(G)(1) (“The defendant’s capacity to appreciate

the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly

impaired, but not so impaired as to constitute a defense to

prosecution.”) and (G)(2) (“The defendant was under

HEDLUND V. RYAN 61

unusual and substantial duress, although not such as to

constitute a defense to prosecution.”), and also as

nonstatutory mitigating evidence:

• Based on the information provided to Judge Sheldon,

he found, as a matter of fact, that Hedlund was “an

intelligent, reflective individual, certainly not

retarded.” Sentencing Hr’g Tr. 17–18.

• Judge Sheldon discredited the evidence that

Hedlund’s conduct during the McClain homicide was

affected by alcohol use. Id. at 18–20. As such, Judge

Sheldon concluded that Hedlund’s alcohol use did not

establish the (G)(1) statutory mitigating factor, but he

considered Hedlund’s alcohol use as nonstatutory

mitigating evidence: “Although the Court has

considered evidence of alcohol consumption as

evidence of mitigation, there is little to demonstrate

that it in any [way] substantially affected the

defendant’s ability to understand the lawfulness of his

conduct. . . . The Court has concluded that although

evidence of alcohol use not being a mitigating

circumstance under (G)(1), [it] nevertheless should be

considered as mitigating evidence.” Id. at 19–20.

• Judge Sheldon then found that evidence and

testimony supporting Hedlund’s “psychological

symptoms” were entitled to “little weight” and did not

establish the (G)(1) or (G)(2) statutory mitigating

factor. Id. at 20–21.

• With respect to evidence of child abuse, Judge

Sheldon found: “[T]here was no persuasive testimony

presented that leads to the conclusion that the abuse

62 HEDLUND V. RYAN

by—that the defendant suffered as a child resulted in

him being under unusual or substantial duress at the

time of the murders. I’m specifically finding that

there is no substantial evidence to support a finding

under (G)(1).” Id. at 21.3

• Judge Sheldon wrapped up his analysis, reiterating that he

considered all of the mitigating evidence, for purposes of

the statutory and nonstatutory mitigating factors:

The defendant’s personality traits, his past

drug and alcohol abuse, and child abuse have

been considered by the Court. If not

demonstrating the existence of the mitigating

factors under (G)(1), they have nevertheless

been given consideration by the Court. I have

concluded . . . that the evidence regarding Mr.

Hedlund’s childhood can be considered as

truthful by the Court, that there were

significant aspects of his childhood which

were clearly abusive.

Certainly the memories of children

may . . . become exaggerated with age. But

there certainly were specific incidences that

were testified to by the witnesses in this case

that clearly have made an impression upon

them which they will probably not forget for

the rest of their lives. This has made an

impact on me. I have considered it. I think it

is the Court’s obligation to consider it,

3

This may be a misstatement, as the “unusual or substantial duress”

factor is (G)(2), not (G)(1). See Ariz. Rev. Stat. § 13-751(G)(1)–(2).

HEDLUND V. RYAN 63

whether or not it complies with the

requirements in (G)(1).

Id. at 23.

• Judge Sheldon also found, as 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.” Id. at 24. Judge Wardlaw reads this to mean

that Judge Sheldon excluded all of those mitigating

factors because of the lack of a causal nexus. See partial

concurrence at 66–69. This reading stretches Judge

Sheldon’s words far beyond what they say. Judge

Sheldon’s statement merely parroted the text of the (G)(1)

statutory mitigating factor, see Ariz. Rev. Stat. § 13-

751(G)(1) (“The defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to

the requirements of law was significantly impaired, but

not so impaired as to constitute a defense to

prosecution.”), and is best understood to reiterate that the

(G)(1) statutory mitigating factor was not established. It

does not conflict with Judge Sheldon’s other statements

making clear that he had considered all of Hedlund’s

mitigating evidence.

• Judge Sheldon also specifically considered various non-

nexus mitigating evidence, including Hedlund’s

“intellectual ability to engage in rehabilitation,”

Sentencing Hr’g Tr. 22, “[Hedlund’s] character as a

young person,” id. at 25, and “the impact that the

sentence in this case will have on [Hedlund’s] sister and

[his] family,” id.

64 HEDLUND V. RYAN

• In the end, however, Judge Sheldon concluded: “[H]aving

reviewed all of this evidence, [Hedlund’s] past character,

I’ve concluded that none of the mitigation evidence

considered by the Court in this case, either individually or

cumulatively, are sufficiently substantial to call for

leniency. And I am ordering that [Hedlund] be sentenced

to death for the death of Mr. McClain.” Id. at 26.

Reading the entire transcript of the sentencing hearing can

lead to only one conclusion: Judge Sheldon understood

Eddings’s mandate and considered all of Hedlund’s proffered

mitigating evidence, but ultimately found the evidence

insufficient to warrant leniency. Id. The single statement on

which Judge Wardlaw relies shows only that Judge Sheldon

constitutionally applied a causal-nexus test in the context of

an Arizona statutory mitigating factor. That statement does

not show that Judge Sheldon excluded mitigating evidence

from his consideration, and Judge Sheldon’s other statements

repeatedly demonstrate otherwise.

In any event, McKinney teaches us that what Judge

Sheldon said is of little consequence, because the Arizona

Supreme Court, on independent review of Hedlund’s and

McKinney’s death sentences, independently violated

Eddings. See McKinney, 2015 WL 9466506, at *17–*20.

Indeed, after McKinney, we must assume that the Arizona

Supreme Court misunderstood Eddings and ignored Judge

Sheldon’s (quite correct) discussion of what Eddings

requires—even though the Arizona Supreme Court apparently

accepted some of Judge Sheldon’s other findings. See id. at

HEDLUND V. RYAN 65

*20; id. at *42 & n.40 (Bea, J., dissenting); see also slip op.

at 53–56.4

In light of McKinney I agree that we must find that the

Arizona Supreme Court also committed Eddings error as to

Hedlund. The Arizona Supreme Court reviewed both

Hedlund’s and McKinney’s death sentences in the same

opinion, State v. McKinney, 917 P.2d 1214 (Ariz. 1996), and

it would make little sense for us to hold that the court applied

Eddings properly in one part of the opinion and improperly in

another part. My agreement on this point should not be

construed as a concession that McKinney was correctly

decided. It was not. But, I recognize that, as a three-judge

panel, we are bound to follow McKinney until it is overruled

by the Supreme Court or a future en banc panel of our court.

See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)

(en banc). As a result, I concur in the majority opinion in full.

4

If I were convinced that the Arizona Supreme Court applied an

unconstitutional causal-nexus test to exclude Hedlund’s proffered

mitigating evidence, I would have no trouble reversing the district court’s

decision denying Hedlund’s petition. With respect to Hedlund, but not

McKinney, the Arizona Supreme Court struck one of the aggravating

factors found by Judge Sheldon. See State v. McKinney, 917 P.2d 1214,

1228–31 (Ariz. 1996) (en banc). If the Arizona Supreme Court did violate

Eddings, its independent reweighing of the remaining aggravating factor

against the mitigating evidence was likely flawed. See Styers v. Schriro,

547 F.3d 1026, 1034–36 (9th Cir. 2008) (per curiam); see also Clemons

v. Mississippi, 494 U.S. 738, 748–49 (1990).

66 HEDLUND V. RYAN

WARDLAW, Circuit Judge, concurring in part and dissenting

in part:

I join Parts II, III, and VI of the majority opinion. The

Arizona Supreme Court’s Eddings error requires us to grant

the writ with respect to Hedlund’s sentence. See 28 U.S.C.

§ 2254(d). I have previously explained my disagreement with

the majority’s disposition of Hedlund’s claims of

unconstitutional shackling during trial and ineffective

assistance of counsel during the plea process and penalty

phase. Hedlund v. Ryan, 750 F.3d 793, 831–43 (9th Cir.

2014) (Wardlaw, J., concurring in part and dissenting in part).

I see no need to do so again here.

The majority opinion correctly concludes that the Arizona

state courts violated Eddings v. Oklahoma, 455 U.S. 104

(1982), in their treatment of Hedlund’s mitigating evidence.

They “did precisely what Eddings prohibits: they found

mitigating evidence of Hedlund’s abusive childhood as a

matter of fact, but treated it as non-mitigating as a matter of

law because it lacked a causal connection to the crime.”

Hedlund, 750 F.3d at 826 (Wardlaw, J., concurring in part

and dissenting in part).

It is unfortunate that Judge Bea believes it is “more

difficult to find a true Eddings violation” in Hedlund’s case

than in his half-brother McKinney’s. Slip op. at 58 (Bea, J.,

concurring). Judge N.R. Smith, in his majority opinion, aptly

and accurately describes how the Arizona Supreme Court

“intertwined its analysis for both Hedlund and McKinney” in

its unconstitutional application of the causal nexus test. Slip

op. at 53–54; see id. at 53–56. Judge Bea minimizes the

import of this violation of Hedlund’s constitutional rights.

Judge Bea characterizes this as a case in which McKinney

HEDLUND V. RYAN 67

forces us unfairly to disregard the findings of the sentencing

court, which he concludes the Arizona Supreme Court most

likely considered. Slip op. at 64 (Bea, J., concurring). He

contends the sentencing court, for its part, “plainly did not

commit Eddings error.” Id. at 58. He is wrong.

The sentencing court’s analysis of Hedlund’s mitigating

evidence was thoroughly, and fatally, infected with Eddings

error. Before it imposed a sentence of death, the sentencing

court stated:

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

68 HEDLUND V. RYAN

intelligence and the ability to refuse continued

participation.

Sentencing Hr’g Tr. at 23–24, July 30, 1993 (emphasis

added). Thus, the sentencing court required a nexus between

Hedlund’s horrifically abusive childhood and his crime

before it would consider Hedlund’s evidence in mitigation.

The sentencing court gave no indication that this requirement

went merely to the weight of this evidence rather than its

relevance. “This refusal to consider and give effect to

significant mitigating evidence that the court found credible

because it was not tied to [Hedlund’s] behavior in committing

the crime is contrary to Eddings.” Hedlund, 750 F.3d at 829

(Wardlaw, J., concurring in part and dissenting in part).

The Arizona Supreme Court, in turn, plainly and

improperly applied a causal nexus requirement to its own

consideration of Hedlund’s tormented childhood. In so

doing, that Court directly relied upon its analysis in State v.

Ross, 886 P.2d 1354 (Ariz. 1994). See State v. McKinney,

917 P.2d 1214, 1227 (Ariz. 1996). Ross held unambiguously

that 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.” 886 P.2d

at 1363 (citation and internal quotation marks omitted)

(emphasis added). The Ross Court then flatly rejected

mitigating evidence of Ross’s abusive childhood. Id. As the

majority opinion observes, when the Arizona Supreme Court

deemed Hedlund’s mitigation evidence irrelevant and

affirmed his sentence of death, it recited the unconstitutional

causal nexus test and gave a pin citation to the precise page

in Ross where it had previously articulated that test—just as

HEDLUND V. RYAN 69

it did when it affirmed the death sentence of Hedlund’s half-

brother and co-defendant, McKinney. Slip op. at 55.

Judge Bea’s concurrence resurrects from his McKinney

dissent the conclusion that “our analysis of the Eddings issue

was wrong and conflicts with Supreme Court precedent

requiring us to ‘presum[e] that state courts know and follow

the law.’” Slip op. at 58 (Bea, J., concurring) (quoting

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). As Judge Bea

refrains from “rehash[ing] that dissent,” id. at 58, I will not

rehash the McKinney en banc panel majority’s decisive

refutation of it. Suffice it here to say that the presumption

that state courts know and follow the law is not irrebuttable,

and the Arizona Supreme Court thoroughly rebutted this

presumption in Hedlund’s case, as in others. McKinney v.

Ryan, No. 09-99018, 2015 WL 9466506, at *2 (9th Cir. Dec.

29, 2015) (en banc). As our McKinney en banc opinion

exhaustively documents, the Arizona Supreme Court

consistently applied the unconstitutional causal nexus test

during the fifteen-year period it was in effect. Id. at *12–16,

*18–20, *23–25. And it did so here.

In Hedlund’s case, as in McKinney’s, the Arizona

Supreme Court’s decision was “contrary to clearly

established federal law as established in Eddings.” Id. at *17;

see id. at *26. In Hedlund’s case, as in McKinney’s, the

Arizona Supreme Court’s error went deeper than the way it

structured its opinion or cited authority. Like the sentencing

court, the Arizona Supreme Court completely disregarded

important mitigating evidence, and violated Hedlund’s Eighth

and Fourteenth Amendment rights by depriving him of a

properly informed, individualized determination before he

was punished with a sentence of death. See id. at *11, *22

(citing Eddings, 455 U.S. at 113–15; Woodson v. North

70 HEDLUND V. RYAN

Carolina, 428 U.S. 280, 304 (1976)). Because the Arizona

courts “applied the prohibited causal nexus test, Hedlund has

not yet received the constitutionally-required review that he

is due.” Hedlund, 750 F.3d at 827 (Wardlaw, J., concurring

in part and dissenting in part). We must, and should, grant

the writ with respect to Hedlund’s death sentence.