and Submitted November 14, 2018 San Francisco, California
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
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
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
Corpus / Death Penalty
panel affirmed the district court's denial of Clarence
Wayne Dixon's habeas corpus petition challenging his
Arizona state murder conviction and death penalty.
panel applied deferential review under the Antiterrorism and
Effective Death Penalty Act of 1996.
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.
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.
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.
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
panel declined to expand the COA as to other issues.
THOMAS, CHIEF JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...