United States District Court, D. Arizona
ORDER DEATH PENALTY CASE
Honorable Diane J. Humetewa United States District Judge
Clarence Dixon is an Arizona death row inmate. Before the Court is Dixon’s petition for writ of habeas corpus. (Doc. 27.) Respondents filed an answer to the petition, and Dixon filed a reply. (Docs. 36, 39.) Also before the Court is Dixon’s motion for evidentiary development, which Respondents oppose. (Docs. 49, 55.) For the reasons set forth below, the Court concludes that Dixon is not entitled to habeas relief or evidentiary development.
In 2008, Dixon was convicted of first-degree murder and sentenced to death for the 1978 murder of Deana Bowdoin. The following facts surrounding the crime are taken from the opinion of the Arizona Supreme Court upholding the conviction and sentence. State v. Dixon, 226 Ariz. 545, 548-49, 250 P.3d 1174, 1177-78 (2011).
On January 6, 1978, Deana, a 21-year-old Arizona State University senior, had dinner with her parents and then went to a nearby bar to meet a female friend. The two arrived at the bar at 9:00 p.m. and stayed until approximately 12:30 a.m., when Deana told her friend she was going home. She drove away alone.
Deana and her boyfriend, Michael Banes, lived together in Tempe. He returned to their apartment at about 2:00 a.m. after spending the evening with his brother and found Deana dead on the bed. She had been strangled with a belt and stabbed several times.
Investigators found semen in Deana’s vagina and on her underwear, but could not match the resulting DNA profile to any suspect until 2001, when a police detective checked the profile against a national database and found that it matched that of Clarence Dixon, an Arizona prison inmate. His DNA was on file due to a 1985 rape conviction.
Dixon was initially charged with first-degree murder, under both premeditation and felony murder theories, and rape in the first degree. The rape charge was dropped as outside the statute of limitations.
Dixon chose to represent himself at trial, with the assistance of advisory counsel. The jury found that he had committed both premeditated and felony murder. At sentencing, the jury found two aggravating factors: that Dixon had previously been convicted of a crime punishable by life imprisonment, A.R.S. § 13-751(F)(1), and that the murder was especially cruel and heinous, A.R.S. § 13-751(F)(6). The jury then determined that Dixon should be sentenced to death.
The Arizona Supreme Court affirmed Dixon’s conviction and sentence on appeal. Dixon, 226 Ariz. 545, 250 P.3d 1174.
In his state post-conviction relief (“PCR”) proceeding, Dixon, now represented by counsel, raised three claims: (1) the state supreme court should not have affirmed his death sentence on independent review; (2) his pre-trial counsel provided constitutionally ineffective assistance by failing to challenge Dixon’s competency to waive counsel; and (3) advisory counsel provided ineffective assistance. The PCR court rejected the claims and the Arizona Supreme Court denied review on February 11, 2014.
II. APPLICABLE LAW
Because it was filed after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 (“§ 2254). Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v. Garceau, 538 U.S. 202, 210 (2003).
A. Exhaustion and Procedural Default
Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, the petitioner must “fairly present” his claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). A petitioner must clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004).
In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).
A habeas petitioner’s claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998).
As a general matter, the Court will not review the merits of a procedurally defaulted claim unless the petitioner demonstrates legitimate cause for his failure to exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
Because “[t]here is no constitutional right to an attorney in state post-conviction proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal citations omitted). Consequently, any ineffectiveness of PCR counsel will ordinarily not establish cause to excuse a procedural default.
However, as discussed in more detail below, the Supreme Court has recognized a “narrow exception” to Coleman’s procedural default principle: “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). The Ninth Circuit has expanded Martinez to include procedurally defaulted claims of ineffective assistance of appellate counsel. Nguyen v. Curry, 736 F.3d 1287, 1294-96 (9th Cir. 2013).
B. Standard for Habeas Relief
Pursuant to 28 U.S.C. § 2254(d), a petitioner is not entitled to habeas relief on any claim adjudicated on the merits in state court unless the state court’s adjudication:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” (Terry) Williams v. Taylor, 529 U.S. 362, 410 (2000). In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court clarified that under § 2254(d), “[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 101. Accordingly, to obtain habeas relief, a petitioner “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.” Id. at 103; see Frost v. Pryor, 749 F.3d 1212, 1225-26 (10th Cir. 2014) (“[I]f all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable. . . . If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.”).
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 (9th Cir. 2014) (explaining that on habeas review a court cannot find the state court made an unreasonable determination of the facts simply because it would reverse in similar circumstances if the case came before it on direct appeal).
To find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
“[R]eview 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, 181 (2011) (holding that “the record under review is limited to the record in existence at that same time, i.e. the record before the state court”); 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).
Therefore, as the court explained in Gulbrandson:
for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d).
Id. at 993-94.
The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).
Finally, a federal habeas court may reject a claim on the merits without reaching the question of exhaustion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Rhines v. Weber, 544 U.S. 269, 277 (2005) (a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under §2254 (b)(2) as “plainly meritless”).
III. DISCUSSION OF CLAIMS
Dixon raises thirty-six claims in his habeas petition, a number of which contain several subclaims. (Doc. 27.) Twenty-two of the claims were raised, in whole or in part, in state court. The remaining claims and subclaims are raised for the first time here.
A. Claims 1-4
Underlying Claims 1-4 is Dixon’s contention that he was not competent to be tried, to waive counsel, or to waive the presentation of mitigating evidence. Underlying Dixon’s alleged incompetence are events that occurred thirty years before his trial.
In 1977 Dixon was arrested and charged with assault with a deadly weapon after striking a teenage girl with a metal pipe. Pursuant to Rule 11 of the Arizona Rules of Criminal Procedure, the trial court appointed two psychiatrists, Drs. Otto Bendheim and Maier Tuchler, to evaluate Dixon. (PCR Pet., Appx. F.) Both found he was not competent to stand trial and suggested a diagnosis of “undifferentiated schizophrenia.” (Id.) Based on these reports, on September 14, 1977, Maricopa County Superior Judge Sandra O’Connor found Dixon incompetent and committed him to the Arizona State Hospital. (Id. Appx. M.)
On October 26, 1977, psychiatrist Dr. John Marchildon reported that Dixon was now competent to stand trial. (Id. Appx. L.) Dr. Marchildon found that Dixon’s “mental condition substantially differs at this time with that described by” Tuchler and Bendheim. (Id.) Dr. Marchildon’s assessment noted:
Affect is appropriate. Mood is neutral, with some evidence of apprehension. General information and vocabulary are above average. He is animated and spontaneous. Memory for recent and remote events is satisfactory. There is no evidence of confusion or retardation. Hallucinations and delusions are denied. Insight and judgment are satisfactory.
Dr. Marchildon found no evidence of mental illness. He concluded that Dixon understood the charges and the nature of the legal proceedings. (Id.) He noted that Dixon’s “hospital stay has been uneventful. He has participated in psychotherapeutic sessions, has received no neuroleptic drugs, and has displayed no behavior or ideation which would indicate mental illness.” (Id.)
On December 5, 1977, Dixon appeared before Judge O’Connor, waived his right to a jury trial, and agreed that the case could be determined on the record. (See Id. App. M.) On January 5, 1978, Judge O’Connor found Dixon “not guilty by reason of insanity.” (Id.) The Court ordered that Dixon remain released pending civil proceedings. (Id.) Dixon murdered Deana less than two days later.
A second basis for allegations of incompetence is Dixon’s so-called “perseveration” and “delusional conduct” concerning a particular legal issue arising from the 1985 rape case. This issue involved Dixon’s theory that NAU officers lacked the statutory authority to investigate the case; therefore, according to Dixon, his prior conviction was “fundamentally flawed” and the DNA comparison made pursuant to his invalid conviction should be suppressed. (See ROA 143 at 8, 9.) In his motion to the trial court, Dixon noted that his argument regarding the lack of statutory authority to investigate was rejected in the 1985 proceedings; he also listed other instances in which he had raised the claim and it had been denied. (Id. at 3-4.) Dixon was convinced, however, that the issue was never “fully and correctly adjudicated.” (Id. at 9.)
1. Claim 1
Dixon alleges that he received ineffective assistance of trial counsel when his lawyer failed to challenge Dixon’s competency to stand trial and to waive counsel. (Doc. 27 at 43.) The PCR court denied this claim on the merits. (ME 7/2/13.)
The Maricopa County Public Defender’s Office initially represented Dixon. His case was assigned to Vikki Liles, who was joined by Garrett Simpson as second chair in July 2005. Liles objected to court-ordered testing of Dixon’s IQ and to a pre-screening evaluation for competency and sanity. (ROA 35, 36.) At a hearing in April 2004, Liles reiterated that Dixon would not participate in an IQ test or a competency examination. (ME 4/16/03.) Liles told the court, however, that Dixon’s mental health needed to be investigated for a possible insanity defense and as a potential mitigating circumstance. (RT 4/16/03.) On September 25, 2003, Liles filed a Notice of Possible Insanity Defense. (ROA 68.) In April 2005, however, Liles informed the court that Dixon would not offer an insanity defense. (ME 4/15/05.)
In February 2006, Simpson replaced Liles as lead counsel. He drafted a Motion to Dismiss, arguing that Dixon’s sanity had not been restored at the time of the murder. (See PCR Pet., Ex. E) Thereafter, Dixon moved to waive counsel. (ROA 131.) The court granted the motion after a colloquy with Dixon. (RT 3/16/06; ME 3/16/06.) Simpson was appointed as advisory counsel. (ME 3/23/06.)
In his PCR petition, Dixon alleged that Simpson performed ineffectively by failing to challenge Dixon’s competency to waive counsel. (PCR Pet. at 10.) He contended that Simpson was on notice of Dixon’s lack of competence based on his knowledge of the 1977 Rule 11 exams and not guilty by reason of insanity verdict (“NGRI”), and because of Dixon’s “perseveration” on the “NAU issue.” (Id.)
During the PCR proceedings, Dr. John Toma performed a “full neuropsychological and psychological evaluation” of Dixon. In his report, dated June 30, 2012, Dr. Toma diagnosed Dixon with schizophrenia, paranoid type. (PCR Pet., Appx. A at 24.) According to Dr. Toma, Dixon “was clearly not capable of representing himself and his competence to proceed should have been questioned, especially given the fact that he was not treated for his psychiatric disorder, the main symptom of which is paranoid ideation.” (Id.)
b. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel’s representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.
The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). To satisfy Strickland’s first prong, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.
With respect to Strickland’s second prong, a defendant must affirmatively prove prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
“Surmounting Strickland’s high bar is never an easy task, ” Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at 105. As the Court explained in Richter:
Even under de novo review, the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” [Strickland, 466 U.S.] at 689. The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms, ” not whether it deviated from best practices or most common custom. [Id.] at 690.
Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.
Id. (additional citations omitted); see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (discussing “doubly deferential judicial review that applies to a Strickland claim under the § 2254(d)(1) standard”).
In rejecting this claim during the PCR proceedings, Judge Andrew Klein, who also presided over Dixon’s trial, explained that at the time Dixon waived counsel the court was aware of the 1977 Rule 11 proceedings and NGRI verdict, as well as the fact that Dixon’s counsel were contemplating an insanity defense in this trial. (ME 7/2/13 at 5.) As Judge Klein explained, “this Court was in possession of information that placed Defendant’s mental health at issue. . . . Defendant’s counsel could not have been ineffective in failing to give the Court information it already had.” (Id.)
Judge Klein Court further noted that Dixon “was adamant that he would not submit to [a competency evaluation].” (Id.) In an affidavit prepared in 2013, Simpson likewise attested that “Dixon was vehemently opposed” to “seeking a determination of competency.” (PCR Pet., Appx. C at 2, ¶ 7.)
As a basis for his conclusion that Dixon was not incompetent, Judge Klein also discussed his first-hand impressions of Dixon:
This Court has a history with this Defendant before the March 16, 2006 hearing on the waiver of counsel and remembers him well. During Defendant’s previous appearances, the Court had ample opportunity to observe Defendant, speak with him, and review his written work product. At all times, the Court found Defendant to be able to adequately advance his positions, he was cogent in his thought processes, lucid in argument, and always able to respond to all questions with appropriate answers. At no time did Defendant appear to this Court to be anything but reasoned in his approach.
(ME 7/2/13 at 6.) Finally, the court noted that the record did not contain evidence of mental health issues following the NGRI verdict:
Twenty-seven years elapsed between the date of the murder and the date of the March 2006 hearing on Defendant’s competence to intelligently, knowingly and voluntarily waive counsel and to proceed pro se. Defendant makes no suggestion that either his competency or his sanity were of concern in proceedings related to the intervening crimes in Maricopa County (late 1978 court proceedings) or in Coconino County (1985 court proceedings; 1987 appellate decision) notwithstanding the early-1978 NGRI finding. Moreover, Defendant provides no evidence that he required treatment for the mental illness or that it interfered with his functioning.
(Id. at 12.)
The court concluded that Simpson “did not act unreasonably in failing to challenge Defendant’s competency before he was allowed to waive counsel, nor was his performance deficient at any point during his representation.” (Id. at 7.) The court’s ruling was neither contrary to nor based on an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
A criminal defendant has a Sixth Amendment right to waive counsel and conduct his own defense. Faretta v. California, 422 U.S. 806, 819 (1975). However, he may not waive his right to counsel unless he does so “competently and intelligently.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). The standard for determining competency to waive counsel is the same as the standard for competency to be tried. Id. at 399. It requires that a defendant have (1) “‘a rational as well as factual understanding of the proceedings against him, ’ and (2) ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). Whether a defendant is capable of understanding the proceedings and assisting counsel is dependent upon evidence of the defendant’s irrational behavior, his demeanor in court, and any prior medical opinions on his competence. Drope v. Missouri, 420 U.S. 162, 180 (1975).
“A claim that counsel was deficient for failing to move for a competency hearing will succeed only when there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt defendant’s competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.” Hibbler v. Benedetti, 693 F.3d 1140, 1149-50 (9th Cir. 2012) (quotations omitted). Dixon can make neither showing.
First, there were not sufficient indicia of incompetence to give Simpson reason to doubt Dixon’s competence. The fact that Dixon had a distant history of mental health problems was not in itself sufficient to show that he was incompetent to waive counsel. See Hoffman v. Arave, 455 F.3d 926, 938 (9th Cir. 2006) (“We have held that those with mental deficiencies are not necessarily incompetent to stand trial.”), vacated on other grounds by Arave v. Hoffman, 552 U.S. 117, 117-19 (2008) (per curiam)); United States v. Garza, 751 F.3d 1130, 1135-37 (9th Cir. 2014) (finding no need for competency hearing where defendant was diagnosed with anxiety and dementia but his behavior, in and out of court, was not erratic and there was no clear connection between any mental disease and a failure on defendant’s part to understand the proceedings or assist in his own defense); Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th Cir. 2005) (finding inmate’s “major depression” and “paranoid delusions” did not raise a doubt regarding his competence to stand trial). Dixon was initially found incompetent to stand trial for the 1977 assault. Six weeks later, after hospitalization and treatment, he showed no signs of mental illness and was found competent. Apart from these events thirty years ago, with which the trial judge was already familiar, there was not a significant history of mental illness that Simpson failed to bring to the court’s attention.
Finally, Dixon’s obsession with the NAU suppression motion was not so bizarre as to suggest incompetence. “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 sovereign-citizen 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).
Apart from the NAU suppression issue, Dixon has failed to identify an instance in which he behaved irrationally, appeared not to understand the proceedings, or did not communicate effectively with counsel. See Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988) (rejecting ineffective assistance of counsel claim when defendant made only “conclusory allegations that he was incompetent to stand trial” and gave “no concrete examples suggesting that at the time of his trial he did not have the ability to consult with his lawyer or he did not understand the proceedings against him.”); Stanley, 633 F.3d at 863 (finding that state court reasonably rejected prisoner’s ineffective assistance claim where the record contained “insufficient evidence of [the prisoner’s] incompetence during the guilt phase to justify a conclusion that defense counsel were ineffective in failing to move for competency proceedings.”).
Second, there was not a reasonable probability that Dixon would have been found incompetent even if counsel had raised the issue. Hibbler, 693 F.3d at 1149-50. As an initial matter, Dixon was adamant that he did not want to be evaluated for competency. See Douglas v. Woodford, 316 F.3d 1079, 1086 (9th Cir. 2003) (explaining that counsel “did not err by failing to obtain further testing, as [counsel] could not secure such testing without his client’s cooperation”). In addition, Judge Klein was familiar with Dixon’s past mental health issues, but having interacted with Dixon through several years of court proceedings, he observed no indications of incompetence. Under these circumstances, it is difficult to see how a competency examination would have been ordered even if Simpson had requested one. As discussed below, there is no reasonable probability that Dixon would have been found incompetent if he had undergone an evaluation.
The PCR court’s rejection of this claim satisfies neither § 2254(d)(1) nor (2). A “reasonable argument” could be made that Simpson “satisfied Strickland’s deferential standard.” Richter, 566 U.S. at 105; see Hibbler, 693 F.3d at 1150. The PCR court’s factual determinations were not objectively unreasonable in light of the state court record. See Taylor, 366 F.3d at 1000; Hibbler, 693 F.3d at 1149. Claim 1 is therefore denied.
2. Claims 2 and 3
In Claim 2, Dixon alleges that that he was tried and sentenced while legally incompetent. (Doc. 27 at 54.) Claim 3 consists of two allegations: that the trial court (A) “erred when it found [Dixon] competent to waive counsel and represent himself” and (B) “abdicated its obligation . . . to ascertain whether Dixon was competent to stand trial, despite the fact that considerable evidence was before the court he was not.” (Id. at 61, 66.) Dixon did not raise Claims 2 or 3(B) in state court. He raised Claim 3(A), which the PCR court denied on the merits. (ME 7/2/13 at 7.)
On March 16, 2006, the trial court conducted a hearing on Dixon’s request to waive counsel. The court first inquired why Dixon wished to represent himself. (RT 3/16/03 at 3-4.) Dixon explained that it involved a disagreement about a motion counsel did not feel she could legally or ethically file. (Id. at 4.)
The trial court warned Dixon that if he represented himself he would be held to the standards of a lawyer. (Id.) The court also noted there would be a significant delay in beginning the trial. (Id.) Dixon acknowledged there were over 3, 000 documents that he needed to review. (Id.) He would also have to read the rules of criminal procedure and find a textbook on trial procedure and preparation. (Id. at 6.)
The court nevertheless explained that in setting a trial date it would have to balance competing interests, including those of the victims and the State, and might ultimately select a date when Dixon did not feel he was ready. (Id.) Dixon stated he was aware of that, but indicated that he was hindered in preparing for trial by the inefficiency of Inmate Legal Services. (Id.) The court explained that Dixon would not be afforded greater freedoms than other inmates and would not get everything he requested simply because he represented himself. (Id. at 6-7.) Dixon stated that he understood. (Id. at 7.)
Dixon told the court he had fourteen years of education, that he read and understood the English language, and that the only medication he had taken in the last twenty-four hours were “[a]sprin, ibuprofen, and that’s it.” (Id. at 7-8.) He told the court that he had not taken any psychotropic medications or anything that prevented him from understanding what the court was stating. (Id. at 8.) When asked if he had ever been in a Rule 11 proceeding for mental problems, Dixon responded that he had, “way back in 1977.” (Id.) The court inquired further:
THE COURT: Okay. But since then have you had any kind of mental problems that would prevent you from having a trial, that you’re aware of?
THE DEFENDANT: No, I’m not.
THE COURT: Okay. And let me ask counsel if you know of any in your evaluation that would make this court’s decision as to whether to grant the waiver of right to counsel in jeopardy.
[SIMPSON]: Not that I’m aware of.
The court told Dixon that “an attorney can be of great benefit to you” and there were “some significant dangers and disadvantages to representing yourself.” (Id. at 9.) Dixon responded “I’m aware that a fool, a fool has himself for a client, yes.” (Id. at 10.)
The court responded, “Not that you’re a fool or anyone is a fool, but I have yet to see someone represent himself in this court and fare better than I think he or she would have done had they had a lawyer.” (Id.) Dixon understood that in choosing to represent himself, he may have decreased his chance of success at trial. (Id.)
The court reiterated that Dixon had the right to an attorney who would represent him at all critical stages of trial. (Id.) Dixon said he understood. (Id.) The court asked Dixon whether he was aware that he was charged “with the most serious of crimes imaginable.” (Id.) Dixon stated that he was. (Id.)
The court instructed the prosecutor to read the indictment to Dixon. (Id. at 11.) Dixon stated that he understood the charges and potential sentences. (Id. at 11-12.)
Dixon also indicated that he understood that if he were allowed to represent himself, he would have “sole responsibility for [his] defense, introducing witnesses, doing investigation, doing legal research, filing and arguing motions, examining and cross-examining witnesses, giving opening statement and final argument to the jury, ” and that because of his custody status he would have more difficulty investigating the case than attorneys would. (Id. at 12-13.) The court again explained Dixon would be held to the same standard as an attorney. (Id. at 13.) Dixon said he understood. (Id.) The court explained that “this type of case is probably the most complex of all criminal cases”; that the law is “complicated, ” “unsettled, ” and “constantly evolving”; that trying the case required knowledge of both case law and statutory authority; and that the trial would involve numerous witnesses and exhibits. (Id. at 13-14.) Dixon stated that he was “aware of all that.” (Id. at 14.)
Dixon was also aware that in a capital case two certified lawyers are typically appointed to represent the defendant. (Id.) The court explained that if Dixon were given advisory counsel, “their job is not to try your case” or “give you advice, ” but to “assist you as needed.” (Id.) Dixon acknowledged that if he represented himself, he “[bore] all responsibilities.” (Id.)
Dixon understood that he could change his mind about self-representation “at any time.” (Id. at 15.) He also understood that if he misbehaved or violated the rules, the court could have a lawyer take over the case. (Id. at 15-16.)
When asked if he had any questions about anything he had discussed with the court, Dixon replied “No, your Honor. I believe you’ll be fair and impartial in this case.” (Id. at 16.) The court then gave Dixon time to read the written waiver. (Id.) Dixon read the waiver, told the court he understood, and then signed it. (Id. at 17.)
The court gave Dixon’s counsel and the prosecutor the opportunity to make a record. (Id.) Neither suggested there was any reason to doubt Dixon’s competency. (Id. at 17-18.)
Based upon Dixon’s answers, the avowals of counsel, and the totality of the circumstances, the trial court expressly found that Dixon had made a knowing, intelligent, and voluntary waiver of his right to counsel and was competent to represent himself. (Id. at 21-22.)
b. Analysis: Claim 3(A)
With respect to Claim 3(A), the PCR court, citing Godinez, 509 U.S. at 399-400, and Dusky, 362 U.S. at 402, found that Petitioner was competent and that his waiver of counsel was “knowing, voluntary, and intelligent.” (Id.) This decision was neither contrary to nor an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts.
The PCR court stated that under Godinez “the competency standard for waiving the right to counsel is the same as the competency standard for standing trial.” (Id.) Dixon asserts that the standards for competency to be tried and competency for self-representation diverged with the Supreme Court’s opinion in Indiana v. Edwards, 554 U.S. 164 (2008). In Edwards, the Court held that the Constitution “permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” 554 U.S. at 178. The Court explained that a defendant who is otherwise able to satisfy the Dusky competence standard may nevertheless be “unable to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at 175-76. Accordingly, a court is permitted, but not required, to appoint counsel for a “gray area” defendant. Edwards, 554 U.S. at 175. The Ninth Circuit has interpreted Edwards as holding that “[t]he standard for a defendant’s mental competence to stand trial is now different from the standard for a defendant’s mental competence to represent himself or herself at trial.” United States v. Ferguson, 560 F.3d 1060, 1068 (9th Cir. 2009).
While noting that a “higher standard” applies to assessing a defendant’s competency for self-representation, compared to the competency to stand trial or to waive counsel, the Court in Edwards expressly declined to adopt a “specific standard” to determine when a defendant lacks the mental capacity to defend himself. 554 U.S. at 172-76, 178. The Court noted that the trial judge “will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” Id. at 176.
Even under a “higher” standard, Dixon was competent to represent himself. As the PCR court made clear, Dixon was able to carry out the basic tasks needed to present his own defense. His behavior at trial was not “decidedly bizarre, ” nor did he do “absolutely nothing” to defend himself at trial and sentencing. Ferguson, 560 F.3d 1068-69 (remanding to determine applicability of Edwards). Instead, Dixon was clearly “aware of what was occurring” and “participated extensively throughout his trial.” United States v. Thompson, 587 F.3d 1165, 1173 (9th Cir. 2009); see United States v. Johnson, 610 F.3d 1138, 1146 (9th Cir. 2010) (finding district court did not err in concluding that defendants were competent to represent themselves, noting the “defendants gave opening statements, testified, examined and cross-examined witnesses, challenged jury instructions, and delivered closing arguments of significant length”).
In arguing that the trial court erred in finding he was competent to represent himself, Dixon again relies on the 1977 Rule 11 reports and NGRI verdict and his persistent pursuit of the NAU suppression issue. As already discussed, however, Judge Klein was aware of these issues at the time he found Dixon competent to waive counsel and represent himself.
Dixon also cites Dr. Toma’s report from 2012, which opined that Dixon “was clearly not capable of representing himself and his competence to proceed should have been questioned.” (PCR Pet., App. A. at 24.) Dr. Toma’s opinion was formed four years after Dixon’s trial. Judge Klein, who observed Dixon while presiding over pretrial and trial proceedings, “was in the best position to observe [Dixon’s] behavior and to make the determination that [he] had the mental capacity to represent [himself].” Johnson, 610 F.3d at 1146; see Edwards, 554 U.S. at 177.
In his decision denying this claim during the PCR proceedings, the court noted that Dixon displayed no signs that he was not competent to represent himself. Judge Klein explained:
[T]his Court had the opportunity to read the Defendant’s motions, listen to his arguments, and to observe his behavior and demeanor at numerous pro se appearances during the pretrial and trial phases. Based on those observations, this Court concluded that Defendant’s thoughts and actions demonstrated coherent and rational behavior.
Defendant, concerned about whether he could represent himself, requested multiple continuances, subsequently asked for hybrid representation during the trial when complicated DNA evidence was being presented, and expressed often on the record his frustration with jail facilities, access to records and research, and communications with advisory counsel. All of these actions demonstrated appropriate and logical conduct on Defendant’s part.
The Court’s observation about Defendant’s competence over a 2½ year time period, including the nearly 3 months of concentrated trial time, have been borne out over the intervening years as Defendant, to the Court’s knowledge, has not been placed on medication, there is no evidence that he suffered from delusions (other than comments Defendant made during a neuropsychological evaluation more than four years post-trial), there was no psychiatric intervention, and he was able to write lucid pleadings.
(ME 7/2/13 at 6-7.)
On habeas review, a state court’s determination that the petitioner was competent is entitled to a presumption of correctness unless that determination is rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Torres v. Prunty, 223 F.3d 1103, 1110 n. 6 (9th Cir. 2000). In Demonsthenes v. Baal, 495 U.S. 731, 735 (1990), the Supreme Court reiterated that a state court’s conclusion regarding a defendant’s competency is a factual determination that is entitled to a presumption of correctness. Id. (citing Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam)); Evans v. Raines, 800 F.2d 884, 887 (9th Cir. 1986).
Based on the facts discussed above, and supported by this Court’s review of the state court record, including the pretrial and trial transcripts, the PCR court’s determination that Dixon was competent to waive counsel was not an unreasonable determination of the facts pursuant to § 2254(d)(2), Maggio v. Fulford, 462 U.S. at 117, nor was it contrary to or an unreasonable application of clearly established federal law under § 2254(d)(1). Claim 3(A) is denied.
c. Analysis: Claims 2 and 3(B)
As noted, Dixon did not raise these claims in state court, so they are procedurally defaulted. Dixon asserts that under Martinez v. Ryan, 132 S.Ct. 1309 (2012), the ineffective assistance of his PCR counsel constitutes cause and prejudice to excuse the default. Dixon is incorrect. Martinez held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315 (emphasis added). Martinez applies only to ineffective assistance of trial or, in the Ninth Circuit, appellate counsel. It has not been expanded to other types of claims. Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (denying petitioner’s claim that Martinez permitted the resuscitation of a procedurally defaulted Brady claim, holding that only the Supreme Court could expand the application of Martinez to other areas).
Because Claims 2 and 3(B) do not allege ineffective assistance of trial or appellate counsel, their default cannot be excused under Martinez. Because Dixon does not show cause for his default of either claim in state court, or a fundamental miscarriage of justice, the claims are barred from federal review. The claims are also meritless because, as discussed above, the trial court adequately addressed the issue of Dixon’s competence and reasonably determined that he was competent to stand trial and represent himself.
3. Claim 4
Dixon alleges that his Sixth and Fourteenth Amendment rights were violated when advisory counsel failed to raise the issue of his competency with the trial court. (Doc. 27 at 69.) The PCR court rejected this claim on the merits. (ME 7/2/13 at 8-9.) The court explained that Dixon, having voluntarily and intelligently waived counsel, had “no constitutional right to challenge the advice or services provided by advisory counsel.” (Id. at 8.) The court further determined that even if such a right existed, there was no ineffective assistance of advisory counsel because the court was already aware of Dixon’s mental health issues. (Id. at 9.) This decision does not entitle Dixon to relief under § 2254(d).
After the trial court found Dixon competent and accepted his waiver of counsel, it appointed Simpson to serve as advisory counsel. After Simpson withdrew, the court appointed attorneys Kenneth Countryman and Nathaniel Carr III as advisory counsel. They did not raise the issue of Dixon’s competence.
Once a court has determined that a defendant’s waiver of his right to counsel is knowing and intelligent, it may appoint standby or “advisory” counsel to assist the defendant without infringing on his right to self-representation. McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984). It is well established, however, that “a defendant who waives his right to counsel does not have a right to advisory counsel.” United States v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010); see United States v. Mendez-Sanchez, 563 F.3d 935, 947 (9th Cir. 2009) (noting that “under our established precedent there is no right to the assistance of standby counsel”); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006) (“Certainly there is no Supreme Court precedent clearly establishing such a right.”). Accordingly, if a defendant elects to waive counsel, but the court nonetheless appoints stand-by or advisory counsel, there is no constitutional right to effective assistance from waived counsel. See Wilson v. Parker, 515 F.3d 682, 697 (6th Cir. 2008) (“Logically, a defendant cannot waive his right to counsel and then complain about the quality of his own defense.”). In Simpson, for example, the petitioner argued that stand-by counsel performed ineffectively by failing to assist him in the mitigation phase of his capital sentencing. 458 F.3d at 597. The Seventh Circuit affirmed the district court’s denial of the claim, explaining that “the inadequacy of standby counsel’s performance . . . cannot give rise to an ineffective assistance of counsel claim under the Sixth Amendment.” Id.
Dixon nonetheless contends that one of the roles of advisory counsel is to monitor the defendant’s competence and step in if he becomes incompetent to waive counsel. Dixon alleges that Countryman and Carr performed ineffectively in that role. As described above, however, there were no significant indications that Dixon was incompetent, nor were there issues concerning his mental health of which the judge was unaware. Advisory counsel did not perform ineffectively in failing to raise the issue of Dixon’s competence.
The PCR court’s denial of this claim was neither contrary to nor an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts. Claim 4 is denied.
B. Claim 5
Dixon alleges that the trial court violated the Ex Post Facto Clause and Dixon’s right to due process and a fair trial when it retroactively applied law that permitted the victim of the 1985 rape to testify at trial. (Doc. 27 at 78.)
In 1985, Dixon raped a 21-year-old college student at knifepoint. Following an evidentiary hearing, the court allowed the victim to testify at Dixon’s murder trial pursuant to Rule 404(c) of the Arizona Rules of Evidence, which provides:
In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party’s alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.
In 2005, the Rule was amended to expand the definition of “sexual offense” to include first-degree felony murder where the predicate felony involved a sexual offense. Ariz. R. Evid. 404(c)(4). This amendment made the Rule applicable to Dixon’s case, despite the fact that the rape charge had been dismissed. Dixon argues that applying the amended rule resulted in an ex post facto violation.
In denying Dixon’s motion to preclude the victim’s testimony, the trial court held that because Rule 404(c) was a rule of evidence, it applied retroactively to Dixon’s case.
The court explained:
It is axiomatic that evidentiary rule changes do not constitute substantive changes in the law such that they can be applied prospectively only. Rather, they generally are viewed as procedural changes that apply to all proceedings as of the date of the change. Accordingly, the amendment to rule 404(c)(4) is applicable to this case. See, State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978), where the Arizona Supreme Court held that constitutional prohibitions ex post facto do not apply to changes in rules of evidence, whether statutory or court-made.
(ROA 128 at 2.)
Dixon did not raise this claim on appeal. Although it is procedurally defaulted, Respondents ask the Court to dismiss the claim pursuant to 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). The Court agrees that the claim can be denied as “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005).
The Ex Post Facto Clause provides that “no State shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Clause prohibits the legislative enactment of any law that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)); see Schroeder v. Tilton, 493 F.3d 1083, 1087 (9th Cir. 2007) (explaining clause prohibits “states from enacting laws that criminalize an act already performed”). “When examining a rule of evidence to determine if it violates this prohibition, courts examine whether the evidentiary rule ‘affect[s] the quantum of evidence sufficient to convict’ the defendant.” Doe v. Busby, 661 F.3d 1001, 1023 (9th Cir. 2011) (quoting Schroeder, 493 F.3d at 1088); see Carmell v. Texas, 529 U.S. 513, 530 (2000).
Applying the amended Rule 404(c) at Dixon’s trial was not an ex post facto violation. The expanded definition of sexual offense “merely permitted the admission of a type of evidence that was previously excluded for the purpose of showing propensity.” Id. (finding no ex post facto violation where state court retroactively applied rule allowing evidence of prior domestic abuse). The amended Rule “does not alter the quantum of evidence needed to convict a defendant.” Id. Therefore, the use of the evidence at Dixon’s trial did not violate the Ex Post Facto Clause. Claim 5 is denied as plainly meritless. . . . .
C. Claim 6
Dixon alleges that his Sixth and Fourteenth Amendment rights were violated when the trial court ordered him to conduct his trial with a leg restraint and stun belt without conducting the proper inquiry to determine the necessity of such restraints. (Doc. 27 at 98.) The Arizona Supreme Court rejected the claim on direct appeal.
At a pretrial conference the court directed Dixon not to approach the bench during trial while the jury was in the courtroom. The court explained that Dixon would be prejudiced if the jury saw him “walking in a very stilted fashion” because it was “possible some intelligent juror could figure out you’re being shackled.” (RT 11/01/07 at 37.) The court further explained: “You will have leg braces and also a stun belt on. That’s for security purposes. The leg braces are a common customary practice for all in-custody defendants when they are dressed out.” (Id. at 37.)
Dixon objected to the court’s ruling, arguing that wearing the restraints “severely hampers my ability to defend myself” by limiting his “body language.” (Id. at 39.) He asked the court to consider eliminating the leg brace since he was also wearing a stun belt. The court responded: “No. Not going to happen. That’s jail policy. . . . [Y]ou have to understand there are security policies for all in-custody defendants who dress out in civilian clothes. And I’m not making an exception for you.” (Id. at 40-41.)
At a subsequent pretrial conference, Dixon again asked the court to remove the leg brace. (RT 11/13/07 at 10.) The court repeated its view of the issue:
That’s a jail security issue and I have told you this before. You’re not being treated any differently than any other defendant who comes to this court who is in custody but dressed out in civilian clothes. You’re not being given different treatment at all. That’s a jail policy. It’s also security policy. You’re on trial for extremely serious crimes. The Court needs to be concerned that you not try to escape or run, and for those reasons, all in-custody defendants who are dressed out are in leg braces.
(Id. at 10-11.)
In a written motion, Dixon argued that having to remain seated would impede his efforts to communicate with the jury using “the spoken word accompanied by positive body language.” (ROA 257 at 3.) The court ultimately ruled that Dixon could approach the podium but warned him he was doing so despite the possibility that the jury could draw negative inferences. (RT 11/13/07 at 11.) The court reaffirmed its ruling on leg braces, again citing jail policy. (RT 11/14/08 at 3.) The court repeated that “[e]very in-custody defendant who is dressed out in this court for trial, no matter what kind of trial, from a capital trial to a class 6 felony, does wear leg braces under their clothes. . . . [s]o that is a policy, and I’m simply choosing to treat you the same way.” (Id. at 4.)
As the Arizona Supreme Court noted, the trial court “repeatedly took steps to prevent the jury from seeing the leg brace and stun belt.” Dixon, 226 Ariz. at 551, 250 P.3d at 1180. The court arranged for Dixon to be standing at the podium when the jury entered the courtroom and reminded him outside the jury’s presence not to allow the jury to see him walking. (RT 1/24/08 at 21.) The court also told Dixon several times not to turn his back to the jury and bend over, because doing so might show the outline of the stun belt under his shirt. (Id.; RT 12/17/07 at 16.)
On direct appeal, Dixon argued that the trial court’s requirement that he wear a stun belt and a leg brace violated his right to a fair trial under Deck v. Missouri, 544 U.S. 622 (2005), which holds that the Due Process Clause forbids the routine use of physical restraints visible to the jury. The Arizona Supreme Court rejected Dixon’s arguments. Dixon, 226 Ariz. at 552, 250 P.3d at 1181. Dixon alleges that the court unreasonably applied Supreme Court precedent, that it unreasonably determined the facts in light of the record, and that the “shackling” error had a substantial influence on the verdict. (Doc. 27 at 108-10.)
The Arizona Supreme Court recognized that the trial court erred by citing only jail policy as the justification for the restraints and failing to make a particularized finding of the need for security measures. Dixon, 226 Ariz. at 552, 250 P.3d at 1181. It reiterated that “judges should not simply defer to jail policy in ordering restraints of defendants. Rather, they should determine on a case-by-case basis whether security measures are required as to the particular defendant before them.” Id. at 551-52, 250 P.3d at 1180-81. Accordingly, “[b]efore authorizing visible restraints, the trial court must make a ‘case specific’ determination reflecting ‘particular concerns, say, special security needs or escape risks, related to the defendant on trial.’” Id. at 551, 250 P.3d at 1180 (quoting Deck, 544 U.S. at 633.)
With respect to the leg braces, the court found no violation of Deck because the braces were not visible. Id. at 552, 250 P.3d at 1181. The court noted that “the reported decisions correctly treat a leg brace worn under clothing as not visible in the absence of evidence to the contrary. There is no evidence here that the jury either saw the brace or inferred that Dixon wore one.” Id. In reviewing the stun belt issue for fundamental error, the court again found that Dixon failed to show the belt was visible to the jury. Id.
Finally, the court found that even if the restraints were visible, the error was harmless given the DNA evidence and the circumstances of the murder:
To conclude that Dixon had not committed the murder, the jury would have had to accept that Deana agreed, in the ninety minutes between the time she left the bar and was found dead, to have had sex with Dixon, apparently a complete stranger, and that after Dixon left her apartment, another person entered the apartment, strangled and stabbed her.
Dixon contends that the Arizona Supreme Court’s rejection of this claim “was based on an inaccurate recitation of the facts and an unreasonable application of federal law.” (Doc. 27 at 107.) Dixon alleges that the court erred by finding that the restraints were not seen by the jury. (Id. at 108.) He states that “[t]hroughout trial, both the stun belt and the leg brace were visible to the jury.” (Id. 102.) As Respondents note, however, in support of this statement Dixon asserts only that “[o]n numerous occasions, the court noted that the stun belt was visible to the jury.” (Id.) (emphasis added). Dixon does not contend that the jurors actually saw the leg brace.
The Court also agrees with Respondents that “the passages Dixon cites as supporting the jurors seeing the stun belt, do not establish that the jurors actually recognized the stun belt as a restraining device.” (Doc. 36 at 50.) Instead, they show only that the court was aware that the outline of the belt could become visible to jurors from certain angles:
THE COURT: Would you tell Mr. Dixon to not turn his back to the jury because you can see the outline of the stun belt, especially when he bends over? It’s one thing to have his back to you guys, but I just noticed him bending over and he was turning and I could see it. I don’t think the jury could, but the more he turns the outline is visible.
So if he wants to look for documents, which is fine, don’t do it with his back turned to them while he’s bending over.
MR. COUNTRYMAN: Okay. I told him that three or four times during the course of this trial, just to make sure he does not move round, because like the last time we were here, his shirt was a little small. So I’ve told him that a couple of times. I’ll tell him again. . . . .
THE COURT: Mr. Dixon, one of the things I want to tell you, I mentioned to your advisory counsel during the break, when you turn your back to the jury and bend over, ...