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Dixon v. Ryan

United States Court of Appeals, Ninth Circuit

July 26, 2019

Clarence Wayne Dixon, Petitioner-Appellant,
Charles L. Ryan, Warden, Director, Arizona Department of Corrections; Ron Credio, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees.

          Argued and Submitted November 14, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 2:14-cv-00258-DJH Diane J. Humetewa, District Judge, Presiding

          Paula Kay Harms (argued) and Amanda C. Bass, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

          Myles A. Braccio (argued) and John Pressley Todd, Assistant Attorneys General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellees.

          Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber and Sandra S. Ikuta, Circuit Judges


         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of Clarence Wayne Dixon's habeas corpus petition challenging his Arizona state murder conviction and death penalty.

         The panel applied deferential review under the Antiterrorism and Effective Death Penalty Act of 1996.

         The panel held that the district court properly held that Dixon's Sixth Amendment right to effective assistance of counsel was not violated when his trial counsel elected not to challenge Dixon's competency to waive counsel, despite counsel's knowledge that Dixon had a history of mental health issues. The panel held that the Arizona Superior Court's denial of Dixon's petition for post-conviction relief did not unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), and that the record demonstrates that the Arizona Superior Court did not rely on an unreasonable determination of the facts.

         The panel held that the district court properly concluded that Dixon's due process rights were not violated by the state trial court's failure to hold a competency hearing sua sponte. The panel held that the state post-conviction-relief court's determination without a hearing that Dixon was competent to waive counsel and represent himself was not an unreasonable determination of the facts, nor was it contrary to clearly established law.

         The panel held that the district court properly held that the Arizona Supreme Court's opinion concluding that the trial court did not abuse its discretion in denying Dixon's final request for a continuance was neither contrary to, nor an unreasonable application of, clearly established law; and did not rest on an unreasonable determination of the facts.

         The panel expanded the certificate of appealability to cover Dixon's claim that his Sixth and Fourteenth Amendment rights were violated when he was shackled and subject to electronic restraints during the trial. As to that claim, the panel held that the Arizona Supreme Court's determination that Dixon was not prejudiced because the jury did not see the restraints was neither an unreasonable determination of the facts nor an application of Deck v. Missouri, 544 U.S. 622 (2005), contrary to clearly established federal law. The panel held that in holding in the alternative that any error under Deck was harmless, the Arizona Supreme Court did not apply Chapman v. California, 386 U.S. 18 (1967), in an objectively unreasonable manner. The panel held that the Arizona Supreme Court's factual conclusions regarding the visibility of the restraints were not unreasonable.

         The panel declined to expand the COA as to other issues.



         An Arizona jury convicted Clarence Wayne Dixon of the 1977 murder of Deana Bowdoin and imposed the death penalty. Dixon appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review a district court's denial of a habeas corpus petition de novo, Hall v. Haws, 861 F.3d 977, 988 (9th Cir. 2017), and we affirm. We expand the certificate of appealability ("COA") as to Dixon's claim that his rights were violated under the Sixth and Fourteenth Amendments when he was shackled and subject to electronic restraints during the trial. We affirm the district court's denial of the petition on that issue.


         The factual and procedural history of this case spans over four decades and has been discussed at length by Arizona state courts and federal courts. A summary of the history relevant to resolution of the claims before us follows.


         In June 1977, Dixon struck a teenage girl with a metal pipe. Dixon v. Ryan (Dixon II), No. CV-14-258-PHX-DJH, 2016 WL 1045355, at *4 (D. Ariz. Mar. 16, 2016) (order) (unpublished decision). Dixon was charged with assault with a deadly weapon in Maricopa County Superior Court. Id. at *4.

         The trial court appointed two psychiatrists, Drs. Bendheim and Tuchler, to evaluate Dixon, as then required by Rule 11 of the Arizona Rules of Criminal Procedure. Id. Both doctors determined that Dixon was not competent to stand trial, noting his depression and difficulty communicating. Both doctors opined that Dixon suffered from "undifferentiated schizophrenia." Dr. Benheim opined that Dixon would be competent to stand trial within "two to six months." Dr. Tuchler recommended treatment in a state hospital, and opined that Dixon "may become competent to stand trial." Thereafter, the Superior Court determined that Dixon was not competent to stand trial and committed him to the Arizona State Hospital for competency restoration.

         Approximately six weeks later, a third psychiatrist, Dr. Marchildon, reported that Dixon was competent to stand trial, reasoning that Dixon's "mental condition substantially differ[ed]" from the condition described by Drs. Bendheim and Tuchler. Dr. Marchildon noted that Dixon's affect was appropriate, his insight and judgment were satisfactory, and he "displayed no behavior or ideation which would indicate mental illness." Dr. Marchildon further determined that Dixon understood the charges against him and the legal proceedings.

         Dixon thereafter appeared before the Superior Court, waived his right to a jury trial, and agreed the case should be determined on the submitted records. The court found Dixon not guilty of the assault by reason of insanity and ordered Dixon released pending civil proceedings on January 5, 1978.

         The next day, Deana Bowdoin was found dead in her apartment, strangled with a belt and stabbed several times. Investigators found semen in Deana's vagina and on her underwear, but were unable at that time to match the DNA profile to a suspect.

         In June 1985, Dixon assaulted a Northern Arizona University student in Flagstaff, Arizona. State v. Dixon, 735 P.2d 761, 762 (Ariz. 1987). Dixon was convicted of aggravated assault, kidnapping, sexual abuse, and four counts of sexual assault and was sentenced to seven consecutive life sentences. Id. The victim initially reported the incident to the University Police Department. Id. The University officers assisted in the investigation and transmitted an "attempt to locate" call after the victim provided a description of the assailant.

         In 2001, a police detective compared DNA recovered in the investigation of Bowdoin's 1978 murder against a national database. The profile matched Dixon, then an Arizona state inmate whose DNA had been collected in the 1985 sexual assault investigation.


         In November 2002, a grand jury indicted Dixon on the charge of first-degree premeditated murder, or, in the alternative, first-degree rape and felony murder, for Bowdoin's murder.

         The State filed notice of its intent to seek the death penalty if Dixon were convicted of first-degree murder. Following the State's notice of intent, public defenders Liles and Simpson were appointed to represent Dixon. For all capital defendants, Arizona law provided automatic prescreening evaluation for competency, sanity, and intellectual disability. Ariz. Rev. Stat. §§ 13-753 to 754. Dixon's counsel objected to the prescreening evaluation, which was never performed.

         In July 2003, defense counsel informed the trial court it might take longer than usual to compile mitigation evidence because Dixon had spent his early life on the Navajo Reservation. Defense counsel estimated that the mitigation specialist would need a year to conduct a complete investigation. The court initially set the trial date for June 15, 2004. Defense counsel later filed a Notice of Possible Insanity Defense.

         In April 2004, defense counsel estimated the mitigation investigation could be completed in five months if the case were assigned to a new specialist. The court granted the defense motion for a continuance on these grounds and vacated the June 2004 trial date. After a new mitigation specialist was assigned to the case, the court extended the deadline for disclosure of mitigation evidence to January 2005. In April 2005, defense counsel informed the court and the State that Dixon would not be pursuing an insanity defense.

         In October 2005, Dixon filed a motion for change of counsel, explaining that his counsel had informed Dixon that they could not file a motion he requested, despite previously agreeing to file the motion in exchange for his cooperation in the preparation of his defense. Dixon believed that the DNA evidence linking Dixon to the murder should be suppressed as fruit of the poisonous tree because it was obtained in connection with his 1985 assault conviction. The 1985 conviction itself was invalid, Dixon believed, because the campus police lacked the authority to investigate. Defense counsel informed Dixon that they could not file the motion on Dixon's behalf because Dixon's theory was not viable. The court held a hearing, at which Dixon acknowledged that a different attorney may likewise refuse to file the motion, at which point he would proceed pro se. The court then denied the motion to substitute counsel, but advised Dixon that he could request to proceed pro se.

         In February 2006, Dixon moved to waive his right to counsel and to represent himself. The court granted Dixon's request after engaging in a colloquy with Dixon regarding whether his request to represent himself was knowing, voluntary, and intelligent. The court questioned Dixon's competency. Dixon informed the court that, although he previously underwent Rule 11 competency proceedings in 1977, he was not aware of any current mental health issues that would prevent him from proceeding to trial. The court also asked Simpson, Dixon's counsel at the time, if he knew of any mental health issues "that would make this court's decision as to whether to grant the waiver of right to counsel in jeopardy," but Simpson denied knowledge of any reason why Dixon should not be allowed to waive counsel.

         Before deciding the motion, the court confirmed that Dixon wished to represent himself and give up his right to counsel, that Dixon understood trial counsel could "be of great benefit" to him, that Dixon had the right to an attorney and that the court could appoint an attorney if he could not afford one, that Dixon understood the charges against him, and that Dixon understood that the potential penalties for the crime included death or life imprisonment. The court determined that Dixon "knowingly, intelligently, and voluntarily waived" his right to be represented by an attorney, but appointed Simpson as advisory counsel. The court thereafter granted Dixon's request for a paralegal and a mitigation specialist. Simpson served as advisory counsel until the court appointed Kenneth Countryman and Nathanial Carr III, who served as advisory counsel through Dixon's trial and sentencing.

         Dixon subsequently filed a motion to suppress the DNA evidence linking him to the murder based on his theory that the campus officers lacked authority to investigate. The court denied the motion. Dixon filed a motion for change of judge based on the denial of the motion to suppress, which the court also denied. Dixon continued to pursue his theory in a special action, eventually seeking review, unsuccessfully, in the Arizona Supreme Court.

         When Dixon was granted permission to represent himself in March 2006, the court set the trial for October 18, 2006. In September 2006, Dixon informed the court his mitigation evidence would not be ready for another nine months to a year, and the court continued the trial to June 25, 2007, "a date certain." In May 2007, Dixon informed the court his mitigation evidence would not be ready for the June trial date and requested a continuance. The trial was rescheduled for August 2007.

         In late August 2007, Dixon moved for a continuance until the last week of January 2008. In support, Dixon raised the turnover among prior mitigation specialists, the loss of a number of documents compiled by the prior specialists, difficulties communicating with the current specialist and experts due to his incarceration, and overall delays due to his incarceration. The court set the trial date for September 13, 2007, but subsequently reset the trial for November 13, 2007.

         On November 8, 2007, Dixon moved for a three-month continuance, until March 2008. Dixon attached a letter from the current mitigation specialist, Tyrone Mayberry, in which Mayberry informed Dixon that the mitigation investigation was not yet complete and that Dixon could not proceed to trial with the mitigation incomplete. Dixon also attached a letter addressed to his advisory counsel from the office of Dr. Gaughan, a psychologist. In the letter, Dr. Gaughan indicated that he had been unable to reach ...

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