Opposition Brief — Clarence Wayne Dixon, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry

Supreme Court briefMay 11, 2022

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No. 21–7829

In the

Supreme Court of the United States

CLARENCE WAYNE DIXON,

Petitioner,

DAVID SHINN, Director, Arizona Department of Corrections,

Rehabilitation and Reentry, et al.

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Capital Case

Execution Scheduled for May 11, 2022 at 10:00 A.M. (MST)/1:00 P.M. (EST)

MARK BRNOVICH

Attorney General of Arizona

JOSEPH A. KANEFIELD

Chief Deputy and Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

JEFFREY L. SPARKS

Acting Chief Counsel

Capital Litigation Section

(Counsel of Record)

GINGER JARVIS

J.D. NIELSEN

Assistant Attorneys General

OFFICE OF THE ARIZONA ATTORNEY GENERAL

Capital Litigation Section

2005 N. Central Avenue

Phoenix, Arizona 85004

(602) 542–4686

CLDocket@azag.gov

Counsel for Respondents

QUESTION PRESENTED FOR REVIEW

In this AEDPA case, was the Arizona courts’ conclusion that Dixon is

competent to be executed contrary to or an unreasonable application of

clearly established federal law, or does it result in a decision that was based

on an unreasonable determination of the facts?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ................................................................... 2

TABLE OF CONTENTS ................................................................................................ 3

TABLE OF AUTHORITIES .......................................................................................... 4

INTRODUCTION .......................................................................................................... 5

STATEMENT OF THE CASE....................................................................................... 6

Dixon’s convictions and capital case. ............................................ 6

Competency to be Executed—State Court Proceedings. .............. 9

Habeas Corpus Proceedings. ....................................................... 14

SUMMARY OF ARGUMENT ..................................................................................... 18

REASONS FOR DENYING THE PETITION ............................................................ 19

II.

APPLICABLE LAW. .................................................................................... 19

Legal Standards under AEDPA. ................................................. 19

Clearly Established Federal Law Governing Competency

to be Executed. ............................................................................. 22

THE STATE COURTS REASONABLY FOUND THAT DIXON IS

COMPETENT TO BE EXECUTED.................................................................. 23

The competency court’s decision did not rest on any

unreasonable determinations of fact. ......................................... 23

The Competency Court Reasonably Applied Ford/Panetti. ....... 25

CONCLUSION............................................................................................................. 30

TABLE OF AUTHORITIES

Cases

Page(s)

Bell v. Cone, 535 U.S. 685 (2002) ................................................................................ 20

Billiot v. Epps, 671 F.Supp.2d 840 (S.D. Miss. 2009)................................................. 28

Carey v. Musladin, 549 U.S. 70 (2006) ....................................................................... 19

Castellanos v. Small, 766 F.3d 1137 (9th Cir. 2014) .................................................. 21

Coe v. Bell, 209 F.3d 815 (6th Cir. 2000) .................................................................... 28

Cullen v. Pinholster, 563 U.S. 170 (2011) ................................................................... 21

Dixon v. Ryan, (Dixon IV), 932 F.3d 789 (9th Cir. 2019) ......................................... 6, 7

Dixon v. Ryan (Dixon III), 2016 WL 1045355, (D. Ariz. March 16, 2016) .................. 6

Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315 (11th Cir. 2013) .......... 26, 27, 29

Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................. 17, 25

Gulbrandson v. Ryan, 738 F.3d 976............................................................................ 21

Harrington v. Richter, 562 U.S. 86 (2011) ............................................................ 20, 29

Hill v. McDonough, 547 U.S. 573 (2006)..................................................................... 26

Hurles v. Ryan, 752 F.3d 768 (2014) ........................................................................... 21

Madison v. Alabama, 139 S. Ct. 718 (2019) ................................................... 22, 25–27

Marshall v. Rodgers, 569 U.S. 58 (2013) .................................................................... 14

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................. 20

Murray v. Schriro, 745 F.3d 984 (9th Cir. 2014) ........................................................ 16

Panetti v. Quarterman, 551 U.S. 930 (2007)....................................................... passim

Parker v. Matthews, 567 U.S. 37 (2012)...................................................................... 19

Renico v. Lett, 559 U.S. 766 (2010) ............................................................................. 29

Rice v. Collins, 546 U.S. 333 (2006) ............................................................................ 21

Shinn v. Kayer, 141 S. Ct. 517 (2020) ......................................................................... 20

State v. Dixon, (Dixon I), 153 Ariz. 151 (1987) ............................................................. 6

State v. Dixon, (Dixon II), 226 Ariz. 545 (2011) ........................................................ 6, 7

United States v. Alden, 527 F.3d 653 (7th Cir. 2008) ............................................. 8, 29

United States v. Anzaldi, 800 F.3d 872 (7th Cir. 2015) ............................................. 28

United States v. James, 328 F.3d 953 (7th Cir. 2003) ............................................ 8, 29

United States v. Jonassen, 759 F.3d 653 (7th Cir. 2014) ....................................... 8, 29

United States v. Kerr, 752 F.3d 206 (2d Cir.) ............................................................... 8

Williams v. Taylor, (Terry), 529 U.S. 362 (2000) .................................................. 19, 20

Wood v. Allen, 558 U.S. 290 (2010) ............................................................................. 20

Wood v. Stephens, 619 F.App’x 304 (5th Cir. 2015) .................................................... 24

Yarborough v. Alvarado, 541 U.S. 652 (2004) ............................................................ 20

Statutes

28 U.S.C. § 2254(d)(2) .......................................................................................... passim

A.R.S. § 13–4022 ............................................................................................................ 9

A.R.S. § 13–4022(C) ....................................................................................................... 9

INTRODUCTION

Petitioner Clarence Wayne Dixon seeks to prevent Arizona from carrying out

his lawfully-imposed sentence less than 12 hours from now, at 10:00 a.m. on May

11, 2022. As grounds, Dixon contends that the state courts’ conclusion that he is

competent to be executed was an unreasonable decision under 28 U.S.C. § 2254(d)

with which no fair-minded jurist could agree. Because the state courts applied the

correct Supreme Court standard for competency to be executed and reached a

decision based on reasonable determinations of the facts, Dixon’s claim lacks merit

and his requests for certiorari and to stay his execution should be denied.

STATEMENT OF THE CASE

Dixon’s convictions and capital case.

The Ninth Circuit Court of Appeals detailed the facts of Dixon’s case and his

criminal history in its 2019 opinion affirming the district court’s denial of habeas

relief. Dixon v. Ryan (Dixon IV), 932 F.3d 789, 795–800 (9th Cir. 2019). In June

1977, Dixon struck a teenage girl with a metal pipe and was charged with assault

with a deadly weapon. Id. at 796. Dixon was determined not competent to stand

trial by two court-appointed psychiatrists, went through restoration proceedings,

and was found not guilty by reason of insanity. Id. Dixon was released pending civil

proceedings on January 5, 1978. Id.

The next day, Deana Bowdoin, a 21-year-old ASU student, was found dead in

her apartment. State v. Dixon (Dixon II), 226 Ariz. 545, 548, ¶¶ 2–3 (2011). She had

been strangled with a belt and stabbed. Id. Investigators found semen on Deana’s

underwear but were unable to match the resulting DNA profile to any suspect. Id.

In 1985, Dixon violently sexually assaulted a 20-year-old student near the

Northern Arizona University (NAU) campus in Flagstaff. State v. Dixon (Dixon I),

153 Ariz. 151, 152 (1987). The NAU police department played a significant role in

investigating the crime; NAU police responded to the victim’s call, took the victim’s

statement, broadcast an “attempt to locate” call with the suspect’s description, and,

after Flagstaff police arrested Dixon, showed the victim a photographic lineup in

which she identified Dixon and allowed her to view Dixon in person, during which

she identified him. Id. at 152–53.

In 2001, a Tempe Police detective checked the DNA profile from the semen on

Deana Bowdoin’s underwear and found that it matched that of Dixon, whose DNA

profile was in a national database as a result of his 1985 convictions. Dixon II, 226

Ariz. at 548, ¶ 4; Dixon IV, 932 F.3d at 796. Dixon had lived across the street from

Deana at the time of the murder, and her friends and family knew of no previous

contact between them. Dixon II, 226 Ariz. at 548–49, ¶ 4.

Dixon was charged with first degree murder. Dixon II, 226 Ariz. at 549, ¶ 5.

Before trial, Dixon sought to represent himself because his appointed counsel would

not file a motion he requested them to file. Dixon IV, 932 F.3d at 797. The issue

Dixon sought to present “involves Dixon’s theory that NAU officers lacked statutory

authority to investigate the case because the NAU police force was not a legal entity

in 1985. Therefore, because the NAU police lacked authority, he was wrongfully

arrested, his 1985 conviction was ‘fundamentally flawed,’ and the DNA comparison

made pursuant to his invalid conviction should be suppressed. (Dist. Ct. Order

5/10/22, at 8.) Dixon fired his court-appointed attorneys and represented himself at

trial. Id. He filed a Motion to Suppress the DNA evidence based on his NAU police

legal theory. Id.

Dixon was convicted of first degree murder and sentenced to death. Dixon II,

226 Ariz. at 549, ¶ 5. Throughout the ensuing years, Dixon’s attorneys argued that,

among other things, his “perseveration” on the DNA suppression issue regarding

the NAU police showed his lack of competency to waive counsel. The state and

federal courts uniformly rejected this contention. In the habeas proceeding, the

district court concluded that “Dixon’s obsession with the NAU suppression motion

was not so bizarre as to suggest incompetence,” citing numerous decisions reaching

that same conclusion regarding other criminal defendants:

“Criminal defendants often insist on asserting defenses with little

basis in the law, particularly where, as here, there is substantial

evidence of their guilt,” but “adherence to bizarre legal theories” does

not imply incompetence. United States v. Jonassen, 759 F.3d 653, 660

(7th Cir. 2014) (noting defendant’s “persistent assertion of a sovereigncitizen defense”); see United States v. Kerr, 752 F.3d 206, 217–18

(2d Cir.), as amended (June 18, 2014) (“Kerr’s obsession with his

defensive theories, his distrust of his attorneys, and his belligerent

attitude were also not so bizarre as to require the district court to

question his competency for a second time.”). “[P]ersons of

unquestioned competence have espoused ludicrous legal positions,”

United States v. James, 328 F.3d 953, 955 (7th Cir. 2003), “but the

articulation of unusual legal beliefs is a far cry from incompetence.”

United States v. Alden, 527 F.3d 653, 659–60 (7th Cir. 2008)

(explaining that defendant’s “obsession with irrelevant issues and his

paranoia and distrust of the criminal justice system” did not imply

mental shortcomings requiring a competence hearing).

Dixon v. Ryan (Dixon III), 2016 WL 1045355, *9 (D. Ariz. March 16, 2016). This

Court agreed, finding that the record in Dixon’s capital case contained “no evidence

of competency issues at any time throughout the course of these proceedings,” and

that the record demonstrated that at the time Dixon sought to represent himself he

“understood the charges against him and the potential sentences, he was able to

articulate his legal positions and respond to questions with appropriate answers,

and that Dixon demonstrated rational behavior.” Id. Significantly, the court stated

that Dixon’s interest in the DNA suppression issue “was not so bizarre or obscure as

to suggest that Dixon lacked competence.” Id.

Competency to be Executed—State Court Proceedings.

On April 5, 2022, on the State’s motion and after Dixon had concluded his

direct appeal, first postconviction relief, and federal habeas corpus proceedings, the

Arizona Supreme Court issued a warrant of execution setting an execution date of

May 11, 2022. (Warrant of Execution.) On April 9, 2022, Dixon filed a motion for

determination of competency under A.R.S. § 13–4022, contending that his very

same focus on the DNA suppression issue which failed to establish his lack of

competency to waive counsel provided reasonable grounds for an examination into

whether he lacks a rational understanding of the State’s reason for seeking his

execution. (Motion for Determination of Competency.) The superior court granted

his request the same day it was filed, finding that Dixon’s motion “satisfie[d] the

minimum required showing that reasonable grounds exist for the requested

examination and hearing, within the meaning of A.R.S. § 13–4022(C) and as

otherwise required by Ford v. Wainwright,” and set an evidentiary hearing.

(Superior Court Order, April 9, 2022.)

The superior court conducted an evidentiary hearing on May 3, 2022. At the

hearing, the competency court heard testimony from Dr. Amezcua-Patino and

Dr. Vega, both of whom evaluated Dixon to determine his competency to be

executed. The court also received 39 exhibits admitted into evidence, including the

relevant reports of Dr. Amezcua-Patino and Dr. Vega.

Dr. Amezcua-Patino diagnosed Dixon with schizophrenia but conceded during

his testimony that Dixon’s schizophrenia diagnosis does not mean that he is

incompetent to be executed. (R.T. 5/3/22, a.m., at 35–36; R.T. 5/3/22, p.m., at 20.)

Dr. Amezcua-Patino further testified that Dixon has a history in which he

“manifested schizophrenia-like symptoms, in particular, paranoia and some

behaviors that may be perceived as being asocial or antisocial.” (R.T. 5/3/22, a.m., at

52.) Dr. Amezcua-Patino also agreed that Dixon knows the fact that the State

intends to execute him for the murder of Ms. Bowdoin. (R.T. 5/3/22, p.m., at 13.)

Dr. Amezcua-Patino opined that: (1) Dixon “holds a fixed delusional belief that his

incarceration, conviction, and forthcoming execution stem from his wrongful arrest

by the NAU police in 1985”, (Addendum to Amezcua-Patino 3/31/22 Report);

(2) Dixon is incompetent to be executed because he is “unable to rationally

understand why he has not obtained relief on” his legal claims regarding DNA

suppression, and he reports that he believes the courts have denied his legal claims

because they fear embarrassment, (R.T. 5/3/22, a.m., at 64–65); and (3) Dixon

believes this fear of embarrassment is the reason the State seeks to execute him.

(Id. at 63.) When asked by the Superior Court why he concludes that Dixon’s legal

theories are delusional, Dr. Amezcua-Patino stated that Dixon’s schizophrenia

diagnosis “in itself raises a probability of delusional thinking.” (R.T. 5/3/22, p.m., at

13–20.)

Dr. Vega testified that during his evaluation on April 23, 2022, Dixon was

very cordial and easy to understand. (R.T. 5/3/22, at 33.) Dr. Vega remarked that

Dixon is “obviously an average to above average intellect. His verbal intelligence is

quite high ….” (Id. at 35.) Dr. Vega further found that Dixon’s comments about

politics during the interview showed that Dixon “has a very good grasp of reality.”

(Id. at 36.) Dr. Vega further found that Dixon did not show symptoms of being

delusional during his interview. (Id. at 37.) When Dr. Vega inquired about Dixon’s

legal theories involving the suppression of DNA evidence, Dixon stated that his

DNA was at the murder scene and he was “not denying the evidence.” (Vega Report;

R.T. 5/3/22, p.m., at 39–40.) However, Dixon reported that he did not remember

committing the murder, suggesting that he may have had an alcohol-induced

blackout at the time of the offense. (Vega Report; R.T. 5/3/22, p.m., at 39–40.) Dixon

further indicated that he didn’t think it would be fair to be put to death for

something he doesn’t remember doing. (R.T. 5/3/22, p.m., at 40.) Dixon also stated

that if he murdered the victim, then perhaps he deserved the death penalty, adding,

“[B]ut if I was in another state, they wouldn’t be killing me…” (Vega Report.)

When Dr. Vega asked Dixon how he would feel if he were to have a memory

of having killed the victim, Dixon stated that he would feel a sense of relief on his

way to his execution. (R.T. 5/3/22, p.m., at 40; Vega Report.) Dr. Vega further

explained that Dixon is convinced that the DNA evidence obtained from the 1985

sexual assault that eventually tied him to the murder was unlawfully obtained, and

therefore Dixon does not believe he should be executed “because of the fact that they

have obtained something that is illegally obtained….” (R.T. 5/3/22, p.m., at 40–41.)

Dr. Vega further opined that Dixon’s belief that his legal challenges are valid is an

aspect of his narcissistic personality, but that Dixon was not delusional in

continuing to raise his challenges although the claims had a low probability of

success. (Id. at 41–42.)

Dr. Vega opined that Dixon has antisocial personality disorder with

empowerment and narcissistic features. (R.T. 5/3/22, p.m., at 63.) Dr. Vega stated

that Dixon’s history of repeated criminal and maladaptive behavior is “pretty good

evidence” of antisocial personality disorder. (Id. at 88.) When challenged about his

diagnosis of antisocial personality disorder, Dr. Vega stated that the DSM is a

“guide” and that he rendered his diagnosis using his clinical judgment. (Id. at

42–43, 90, 108.)

Dr. Vega concluded that even if Dixon’s reported belief that the courts have

rejected his claims because they fear embarrassment is the product of delusional

thinking, it does not prevent him from rationally understanding the State’s reason

for his execution, because Dixon rationally understands the “connection” between

the murder and his execution. (R.T. 5/3/22, p.m., at 44–45.) Furthermore, Dr. Vega

opined that Dixon “wants to do everything that he can in order to see whether there

is a possibility that [the courts] would accept his position and not execute him,” and

therefore Dixon “absolutely understands the connection” between his murder and

the execution. (Id. at 107–09.)

On the night the hearing concluded, the competency court issued a six-page

order finding that Dixon failed to prove he was incompetent to be executed. As

stipulated by the parties, the court addressed Dixon’s competency under the

standard from Panetti v. Quarterman, 551 U.S. 930, 958–59 (2007), whether Dixon’s

“mental state is so disordered by a mental illness that he lacks a rational

understanding of the State’s rationale for his execution.” (R.T. 5/3/22 a.m., at 11-12.)

The court found that Dixon “has a mental disorder or mental illness of

schizophrenia,” but explained that this diagnosis “does not decide the question of

competency.” (Pinal County Superior Court Ruling, May 3, 2022.) The court then

discussed Dixon’s argument, supported by Dr. Amezcua-Patino’s testimony, that

Dixon’s fixation on the NAU issue is delusional and demonstrates incompetence,

especially his belief that the court denied his claims as a means of protecting the

government and police from “embarrassment” and that his execution will result in

an “extra-judicial killing.” Id. at 3. The court also acknowledged that Dr. AmezcuaPatino reported Dixon as saying that the courts ruled against him on the NAU issue

not because “the judges, attorneys for the state, or his own attorneys were plotting

against him,” but because “they have a firm and decided philosophy that law

enforcement should always be backed up.” Id. at 3. The court found that the NAU

issue was not dispositive but provided “insight” into Dixon’s competency. Id. at 3–4.

The court also found that Dixon’s statements to Dr. Vega provided insight

into his understanding of the reason for his execution; in particular, his statement

that he would feel relief on the way to his execution if he finally had a memory of

committing the murder. Id. at 4. The court also found that, while Dixon was

schizophrenic, he is intelligent and his pro se court filings show “sophistication,

coherent and organized thinking, and fluent language skills.” Id. at 4. Although the

court also noted that Dr. Amezcua-Patino stated that intelligence does not preclude

incompetence. Id.

The competency court also found that, although Dixon claimed no memory of

the murder, “there is no evidence of dementia or a related impairment that would

otherwise implicate an Eighth Amendment concern.” Id. Finally, referring to the

entirety of the record, the court concluded that Dixon failed to prove, either by clear

and convincing or a preponderance of the evidence, that his “mental state is so

distorted by a mental illness that he lacks a rational understanding of the State’s

rationale for his execution.” Id. at 5–6.

The competency court issued its decision finding Dixon competent to be

executed at close to midnight on the night the hearing concluded, Tuesday, May 3,

2022. Yet Dixon waited four days, until the evening of May 7, 2022, to petition the

Arizona Supreme Court for special action review of the competency court’s decision.

(Petition for Special Action.) The Arizona Supreme Court denied review on the

morning of May 9, 2022.

Habeas Corpus Proceedings.

On May 9, 2022, after the Arizona Supreme Court denied special action

review, Dixon filed a petition for writ of habeas corpus in the district court. The

State filed an answer later that same day, and the district court issued its order

denying habeas relief and denying Dixon’s request for a stay of execution as moot on

the morning of May 10. (District Court Order, May 10, 2022.) The district court also

denied a certificate of appealability because “reasonable jurists could not debate its

resolution of Dixon’s competency claim.” (Id. at 25.)

Shortly after the district issued its decision, Dixon filed a Notice of Appeal.

The court of appeals issued an order sua sponte granting a certificate of

appealability, ordering simultaneous briefs to be filed by noon on May 10, 2022, and

set oral argument for 2 p.m. After briefing and argument, the court issued an

opinion concluding that the “Arizona state court’s decision is not contrary to or an

unreasonable application of clearly established federal law, nor does it result in a

decision that was based on an unreasonable determination of the facts” under 28

U.S.C. § 2254(d)(1) and (2), and Dixon therefore was not entitled to relief. Dixon v.

Shinn, No. 22–99006, Slip. Op. at 1–2 (9th Cir. May 10, 2022).

In concluding that the state court’s decision reasonably applied applicable

Supreme Court precedent, the panel noted that the competency court “correctly

articulated the governing legal standard and asked whether Dixon ‘lacks a rational

understanding of the State’s rationale for his execution.’” Id. at 8. It noted that the

state court “ultimately concluded that Dixon had not made this showing because,

although Dixon ‘has a mental disorder or mental illness of schizophrenia,’ this

illness ‘can fall within a broad spectrum’ and does not on its own ‘decide the

question of competency.’” Id.

The panel pointed out that Dixon told his own expert “state officials were ‘not

disagreeing’ with his legal challenge to his conviction, ‘they just want to kill me for

murder.’” Id. at 9. Furthermore, “although the experts disagreed on the ultimate

competency question, “‘[t]he experts agree that Dixon knows that he was sentenced

to death for the murder of Deana Bowdoin.’” Id. (quoting District Court decision).

Moreover, the panel noted that Dixon “cites no clearly established federal law

suggesting that having long-shot legal theories or viewing the legal system as

biased in favor of law enforcement, or even corrupt, is coextensive with the finding

that Ford and Panetti require,” and that it therefore could not “conclude that the

state court’s decision was an unreasonable application of Panetti.”

“That is

particularly so when we have already rejected a substantially similar argument:

that Dixon’s insistence on the DNA suppression theory demonstrated his

incompetence at trial.” Id. at 10–11.

In concluding that the state court did not unreasonably determine the facts,

the panel, among other findings, rejected Dixon’s arguments that Dixon’s statement

to Dr. Vega that he would feel “relief” if he regained his memory of the murder was

irrelevant to his competency to be executed and was unreliable. Id. at 14. Noting

that Dixon “does not directly argue that he did not make the challenged statement

to Dr. Vega in their interview,” the panel found that “the state court could thus

reasonably conclude that Dixon had made the statement as reproduced in

Dr. Vega’s report and referenced in his later testimony. The state court could also

reasonably rely on the statement as evidence that Dixon is capable of rationally

understanding the reason for his execution.” Id. at 14–15.

Dixon then filed a petition for panel rehearing and rehearing en banc. The

panel voted to deny the petition for panel rehearing and no judge requested a vote

on whether the panel opinion should be reheard en banc. Then, less than 12 hours

before his scheduled execution, Dixon filed a petition for writ of certiorari and

application for stay of execution.

SUMMARY OF ARGUMENT

The state courts’ decision finding that Dixon failed to prove he is incompetent

to be executed was reasonable under 28 U.S.C. § 2254(d). The competency court

applied the correct standard under Panetti v. Quarterman, 551 U.S. 930, 958-59

(2007), assessing whether Dixon’s “mental state is so disordered by a mental illness

that he lacks a rational understanding of the State’s rationale for his execution.”

The competency court’s decision was also based on a reasonable determination of

the facts before it. The fact that Dixon may hold delusional beliefs about why the

courts have consistently denied his legal challenges to his convictions does not

demonstrate that he lacks a rational understanding of the connection between his

conviction of murder and his upcoming execution. To the contrary, the statements

he made during his evaluations shows that he has a rational understanding of why

he will be executed.

REASONS FOR DENYING THE PETITION

APPLICABLE LAW.

Legal Standards under AEDPA.

Under AEDPA, this Court may not grant a writ of habeas corpus to a state

prisoner on a claim adjudicated on the merits in state court proceedings unless the

state court’s adjudication of the claim “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” 2254(d)(2).

Under the “unreasonable application” prong of § 2254(d)(1), relief is available

where a state court “identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the particular . . . case” or

“unreasonably extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend that principle

to a new context where it should apply.” Williams v. Taylor (Terry), 529 U.S. 362,

407 (2000).

“Clearly established federal law” refers to the holdings, as opposed to dicta, of

the Supreme Court’s decisions at the time of the relevant state court decision. Id. at

412. “[C]ircuit precedent does not constitute ‘clearly established Federal law’” and

“cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567

U.S. 37, 48–49 (2012); see Carey v. Musladin, 549 U.S. 70, 76–77 (2006).

A reviewing court may, however, “look to circuit precedent to ascertain whether it

has already held that the particular point in issue is clearly established by Supreme

Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 63 (2013).

The Supreme Court has emphasized that under § 2254(d)(1) “an

unreasonable application of federal law is different from an incorrect application of

federal law.” Williams (Terry), 529 U.S. at 410, (O’Connor, J., concurring); see Bell v.

Cone, 535 U.S. 685, 694 (2002). To obtain habeas relief, therefore, “a state prisoner

must show that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86, 103 (2011); see Shinn v. Kayer, 141 S. Ct. 517,

526 (2020) (per curiam); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

burden is on the Dixon to show “there was no reasonable basis for the state court to

deny relief.” Richter, 562 U.S. at 98.

With respect to § 2254(d)(2), a state court decision “based on a factual

determination will not be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the state-court proceeding.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination

is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

Even if “[r]easonable minds reviewing the record might disagree” about the finding

in question, “on habeas review that does not suffice to supersede the trial court’s . . .

determination.” Rice v. Collins, 546 U.S. 333, 341–342 (2006); see Hurles v. Ryan,

752 F.3d 768,778 (2014) (explaining that on habeas review a court “cannot find that

the state court made an unreasonable determination of the facts in this case simply

because [the court] would reverse in similar circumstances if th[e] case came before

[it] on direct appeal”). The prisoner bears the burden of rebutting the state court’s

factual findings “by clear and convincing evidence.” § 2254(e)(1).

Significantly, “review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits.” Cullen v.

Pinholster, 563 U.S. 170, 180 (2011); see Murray v. Schriro, 745 F.3d 984, 998

(9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford

state courts’ decisions, AEDPA also restricts the scope of the evidence that we can

rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”).

The Ninth Circuit has observed that “Pinholster and the statutory text make clear

that this evidentiary limitation is applicable to § 2254(d)(2) claims as well.”

Gulbrandson v. Ryan, 738 F.3d 976, 993 n. 6 (2013) (citing § 2254(d)(2) and

Pinholster, 563 U.S. at 185 n. 7).

When, as here, a state supreme court summarily denies discretionary review,

a reviewing federal court must “‘look through’ that unexplained decision to the last

state court to have provided a ‘reasoned’ decision.” Castellanos v. Small, 766 F.3d

1137, 1145 (9th Cir. 2014).

Clearly Established Federal Law Governing Competency to be

Executed.

“[T]he Eighth Amendment prohibits a State from carrying out a sentence of

death upon a prisoner who is insane.” Ford v. Wainwright, 477 399, 409–10 (1986).

“The critical question is whether a ‘prisoner’s mental state is so distorted by a

mental illness’ that he lacks a ‘rational understanding’ of ‘the State’s rationale for

[his] execution.’” Madison v. Alabama, 139 S. Ct. 718, 723 (2019) (quoting Panetti,

551 U.S. at 958–59).

A rational understanding requires more than just an

awareness of the State’s rationale. Panetti, 551 U.S. at 959. Put another way, “the

issue is whether a ‘prisoner’s concept of reality’ is ‘so impair[ed]’ that he cannot

grasp the execution’s ‘meaning and purpose’ or the ‘link between [his] crime and its

punishment’.” Id. (quoting Panetti, 551 U.S. at 958, 960).

Mental illness or lack of memory of the crime do not alone establish

incompetence. “What matters is whether a person has the ‘rational understanding’

Panetti requires—not whether he has any particular memory or any particular

mental illness.” Madison, 139 S. Ct. at 727. Moreover, “[p]rior findings of

competency do not foreclose a prisoner from proving he is incompetent to be

executed because of his present mental condition.” Panetti, 551 U.S. at 934. Finally,

as the Court observed in Panetti, “The mental state requisite for competence to

suffer capital punishment neither presumes nor requires a person who would be

considered “normal,” or even “rational,” in a layperson’s understanding of those

terms. 551 U.S. at 959.

Once a prisoner makes a requisite threshold showing of incompetency, the

protection afforded by procedural due process includes, at a minimum, a “fair

hearing” and an “opportunity to be heard.” Panetti, 551 U.S. at 949 (quoting Ford,

477 U.S. at 424, 426.) A state court’s failure to provide these procedures constitutes

an unreasonable application of clearly established Supreme Court law. Id. at 948.

II.

THE STATE COURTS REASONABLY FOUND THAT DIXON IS COMPETENT TO BE

EXECUTED.

Dixon argued below that the state competency court’s decision was based on

unreasonable determinations of fact under 28 U.S.C. § 2254(d)(2) and that the

competency court unreasonably applied Ford/Panetti. He is incorrect. The district

court correctly denied Dixon’s habeas petition and denied a COA because the state

courts correctly applied applicable Supreme Court precedent and reasonably

concluded that Dixon failed to establish he is incompetent to be executed.

The competency court’s decision

unreasonable determinations of fact.

did

not

rest

any

Dixon argued below that the competency court’s ruling was based on

unreasonable determinations of fact under 28 U.S.C. § 2254(d)(2). He is incorrect;

the competency court’s decision was based on reasonable determinations of the facts

in the record.

Dixon contended that the competency court unreasonably determined the

facts when it considered his intelligence and the coherence and organized thinking

of his written pleadings as part of its analysis into competency to be executed. This

was not unreasonable, however, because the competency court also acknowledged

that Dr. Amezcua-Patino testified that the presence of intelligence does not

preclude a finding of incompetency.

Dixon also argued that the competency court unreasonably determined the

facts because it based its decision on Dr. Vega’s observations about Dixon’s mental

competency while at the same time suggesting that Dr. Vega’s diagnosis of ASPD

was invalid. As the district court noted, however, the competency judge “carefully

judged Dr. Vega’s credibility and made reasonable discernments between Dr. Vega’s

opinion and his observations.” District court ruling at 19. And while Dixon points

out that Dr. Vega did not retain the recording of his interview with Dixon, he failed

to establish that his own expert, Dr. Amezcua-Patino even recorded his interviews,

much less retained any recordings. Moreover, even if Dr. Vega’s diagnostic approach

was somehow flawed, that does not negate his ability to accurately report his

observations about Dixon or describe his conversation with Dixon. Thus, even if it

disagreed with Dr. Vega’s diagnostic conclusions, it was not unreasonable for the

competency court to nonetheless rely on Dr. Vega’s observations.

Dixon also argued that it was unreasonable for the competency court to

characterize his NAU claim as “arguably delusional.” But the state court’s

characterization was not unreasonable in light of Dixon’s statement to Dr.

Amezcua-Patino that the judicial system was not biased against him but was

instead biased in favor of law enforcement. As the district court noted, Dixon’s

statement “would be difficult to characterize as purely delusional.” District court

ruling at 20 (citing Wood v. Stephens, 619 F.App’x 304, 309 (5th Cir. 2015)).

The Court stated in Madison that “delusions come in many shapes in sizes,

and not all will interfere with the understanding that the Eighth Amendment

requires.” 139 S. Ct. at 729 (citing Panetti, 551 U.S. at 962). A delusion renders a

prisoner incompetent to be executed only when it “may put an awareness of a link

between a crime and its punishment in a context so far removed from reality that

the punishment can serve no proper purpose.” Panetti, 551 U.S. at 960. As the

district court summarized, “Dixon has one delusion”:

that the NAU issue is meritorious and that courts have denied it out of

bias for the prosecution or to avoid embarrassment from his wrongful

prosecution. Yet, that delusion is not so removed from reality that his

punishment can serve no proper purpose. It was not unreasonable for

the competency court to find that this belief did not impair Dixon’s

rational understanding of the reason for his execution.

District court ruling at 20.

The state courts did not make an unreasonable determination of facts in light

of the evidence in the record and Dixon has failed to overcome the presumption that

the Arizona Supreme Court’s finding that his evidence did not rebut the

presumption of competency is correct. Thus, the courts below correctly rejected

Dixon’s argument that the state court’s decision was contrary to § 2254(d)(2).

The Competency Court Reasonably Applied Ford/Panetti.

Dixon argues that the competency court acknowledged the correct standard

for competency to be executed but failed to apply it. He contended that the court

actually applied a too-restrictive standard that was rejected in Panetti based on

mere “awareness” that the state wants to execute him. The district court correctly

found that the state courts applied the proper standard from Panetti.

The competency court applied the correct standard from Panetti: whether

Dixon’s “mental state is so distorted by a mental illness that he lacks a rational

understanding of the State’s rationale for his execution.” Pinal County Superior

Court ruling at 2. The Supreme Court acknowledged in Panetti that “a concept like

rational understanding is difficult to define.” 551 U.S. at 959. The Court did not

purport to create “a rule governing all competency determinations,” but instead held

that the trial court should have considered the defendant’s “severe, documented

mental illness” before dismissing his claim of incompetence. Id.

Here, the state court fully considered Dixon’s schizophrenia and delusional

beliefs. See Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1324 (11th Cir.

2013) (explaining that state court applied the correct standard by taking into

account petitioner’s “paranoid schizophrenia and delusional belief that he is the

Prince of God” before finding him competent). In fact, the court found that Dixon

suffers from schizophrenia. The court correctly observed, however, that a diagnosis

of Dixon’s mental illness is not itself dispositive of his competence. Madison, 139 S.

Ct. at 727.

Both experts agreed that Dixon knows that he was sentenced to death for

Deana Bowdoin’s murder. The competency court reasonably considered Dixon’s

statements to Dr. Vega demonstrating that he is aware that the murder, not any

conspiracy or cover-up by the judicial system, that led to his death sentence and

upcoming execution. For example, Dixon’s statement that he wished he was in a

state that did not have the death penalty demonstrates that he understands the

connection between his crime and his sentence. See Ferguson, 716 F.3d at 1340

(despite schizophrenic petitioner’s expressed beliefs that “he had been anointed the

Prince of God, that he would be resurrected . . . to sit at ‘the right hand of God,’ and

that he would eventually return to Earth,” state court reasonably found him

competent for execution under Panetti where he “acknowledged that he was going to

be executed because of the eight murders he committed, acknowledged that he

would be the first inmate to receive Florida’s new lethal-injection protocol, and

acknowledged that he would physically die as an immediate result of being

executed”).

Other statements by Dixon demonstrate his rational understanding of the

connection between his conviction of Deana Bowdoin’s murder and his execution.

For example, he stated that he would bring the victim back if he could, Vega report

at 5; that if he killed the victim on purpose then maybe he was deserving of the

death penalty, id.; and that if he had a memory of killing the victim he would feel a

sense of relief on his way to execution, id. See Madison, 139 S. Ct. at 727

(explaining that “a person who can no longer remember a crime may yet recognize

the retributive message society intends to convey with a death sentence).”

The competency court’s conclusion is reasonable in light of these statements

because, as the district court concluded, they support a finding that Dixon has

“‘come to grips’ with the punishment’s meaning.” Id. at 729 (citing Panetti, 551 U.S.

at 958). They affirmatively demonstrate that Dixon has the ability to “grasp the

execution’s ‘meaning and purpose’ [and] the ‘link between [his] crime and its

punishment.’” Id. at 723 (quoting Panetti, 551 U.S. at 958, 960); see Coe v. Bell, 209

F.3d 815, 826–27 & n.4 (6th Cir. 2000) (finding petitioner “comprehended” his

sentence and its implications where he chose a method of execution and refused a

sedative so that he would be able to “deal with” God).

Dixon attempted to draw a parallel between his delusion and the delusions of

the prisoner in Panetti, who believed the state wanted to execute him to stop him

from preaching. But the Supreme Court did not find that Panetti’s delusion

rendered him incompetent; instead, it remanded to the district court to make that

determination in the first instance.1F2 And, as demonstrated above, Dixon’s

“delusion” about the NAU legal claim does not prevent him from rationally

understanding the reasons for his execution.

Moreover, as the district court found, “the nature of Dixon’s delusion is less

suggestive of incompetence than the delusions Panetti experienced.” District court

ruling at 23 (citing Panetti, 552 U.S. at 954 (explaining that Panetti’s “genuine

delusion” involved the reason for his execution which he viewed as “part of spiritual

warfare . . . between the demons and the forces of the darkness and God and the

angels and the forces of light”); see, e.g., Billiot v. Epps, 671 F.Supp.2d 840, 882

(S.D. Miss. 2009) (finding schizophrenic petitioner incompetent based on his

delusional belief that he would not be executed if he took his medication)). And

numerous courts have found that “adherence to a discredited legal theory,” which is

the nature of Dixon’s so-called “delusion,” is insufficient to suggest a lack of

competence in the context of competency to be tried. United States v. Anzaldi, 800

F.3d 872, 878 (7th Cir. 2015) (citing United States v. Jonassen, 759 F.3d 653, 660

(7th Cir. 2014); United States v. Alden, 527 F.3d 653, 659–60 (7th Cir. 2008); United

States v. James, 328 F.3d 953, 955 (7th Cir. 2003)).

The state court did not apply a more restrictive “awareness” standard than

that required by Panetti. Instead, the competency court reasonably applied Panetti

in finding that Dixon failed to rebut the presumption of competency under either a

clear-and-convincing or a preponderance-of-the-evidence standard. Thus, the state

court’s decision was not “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at 103; see Ferguson, 716 F.3d at 1340, 1342 (“Both

the reasoning and outcome of the Supreme Court’s decision in Panetti leave ample

room for fair-minded jurists to conclude, as the state courts did here, that Ferguson

is mentally competent to be executed despite his mental illness and the presence of

a delusional belief.”) (citing Renico v. Lett, 559 U.S. 766, 776 (2010)).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MARK BRNOVICH

Attorney General of Arizona

JOSEPH A. KANEFIELD

Chief Deputy and Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

JEFFREY L. SPARKS

Acting Chief Counsel

Capital Litigation Section

(Counsel of Record)

GINGER JARVIS

J.D. NIELSEN

Assistant Attorneys General

OFFICE OF THE ARIZONA ATTORNEY GENERAL

Capital Litigation Section

2005 N. Central Avenue

Phoenix, Arizona 85004

(602) 542–4686

CLDocket@azag.gov

Counsel for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.