Hedlund v. Ryan

854 F.3d 557

Charles Michael HEDLUND, Petitioner-Appellant,

v.Charles L. RYAN, Respondent-Appellee.

No. 09-99019

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2012—Pasadena, California

Filed March 4, 2016

Amended April 13, 2017

Paula Kay Harms, Federal Public Defender's Office, Phoenix, Arizona, for Petitioner-Appellant.

Jon Anderson, Arizona Attorney General's Office, Phoenix, Arizona, for Respondent-Appellee.

Before: Kim McLane Wardlaw, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Concurrence by Judge Bea ;

Partial Concurrence and Partial Dissent by Judge Wardlaw

ORDER

The opinion filed March 4, 2016, and reported at 815 F.3d 1233, is hereby amended concurrent with the filing of an Amended Opinion today. With these amendments, Judges Bea and N.R. Smith voted to deny the petition for rehearing en banc, and Judge Wardlaw voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED . No further petitions for rehearing or rehearing en banc may be filed in response to the amended disposition.

OPINION

N.R. SMITH, Circuit Judge:

Petitioner Charles Michael Hedlund, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. A jury convicted Hedlund of one count of first degree murder for the 1991 killing of Jim McClain. The trial court sentenced Hedlund to death for the murder. The jury also convicted Hedlund of the second degree murder of Christene Mertens.

The relevant state court decision, relating to Hedlund's claims regarding (1) the use of a leg brace as a security measure during trial; (2) the use of dual juries; (3) juror bias; (4) counsel's performance during the plea process; and (5) counsel's performance during the penalty phase, was not contrary to, nor an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts before that court.¹ See 28 U.S.C. § 2254(d).

However, the Arizona Supreme Court applied a "causal nexus" test, whereby not all mitigating evidence was considered under Lockett v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and their progeny. See McKinney v. Ryan , 813 F.3d 798 (9th Cir.2015) (en banc). Therefore, such decision was contrary to clearly established federal law. See 28 U.S.C. § 2254(d). We must reverse the district court and remand with instructions to grant the petition with respect to Hedlund's sentence.²

FACTS AND PROCEDURAL HISTORY

Findings of fact in the last reasoned state court decision are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012) ; Moses v. Payne , 555 F.3d 742, 746 n.1 (9th Cir. 2008). Therefore, we adopt the statement of facts as presented by the Arizona Supreme Court in its 1996 opinion on consolidated direct appeal.

Beginning February 28, 1991, James Erin McKinney and Charles Michael Hedlund (Defendants) commenced a residential burglary spree for the purpose of obtaining cash or property. In the course of their extensive planning for these crimes, McKinney boasted that he would kill anyone who happened to be home during a burglary and Hedlund stated that anyone he found would be beaten in the head.

Defendants enlisted two friends to provide information on good burglary targets and to help with the burglaries. These two friends, Joe Lemon and Chris Morris, were not physically involved in the burglaries in which the murders occurred. It was from Lemon and Morris, however, that Defendants learned that Christene Mertens would make a good burglary target.

The first burglary in the spree occurred on February 28, 1991. Mertens' home was the intended target that night, but she came home and scared the would-be burglars away. A different residence was chosen to burglarize, but Defendants obtained nothing of value. Both Defendants, as well as Lemon and Morris, were involved in this crime.

The second and third burglaries occurred the next night, March 1. This time Lemon was not involved. The three participants stole a .22 revolver, $12, some wheat pennies, a tool belt, and a Rolex watch.

A. The first murder

The fourth burglary took place on March 9, 1991. This time only McKinney and Hedlund were involved. Mertens was picked again because Defendants had been told by Lemon and Morris, who knew Mertens' son, that Mertens kept several thousand dollars in an orange juice container in her refrigerator.

Mertens was home alone when Defendants entered the residence and attacked her. Beaten and savagely stabbed, Mertens struggled to save her own life. Ultimately, McKinney held her face down on the floor and shot her in the back of the head, covering his pistol with a pillow to muffle the shot. Defendants then ransacked the house and ultimately stole $120 in cash.

B. The second murder

Defendants committed the fifth burglary on March 22, 1991. The target was Jim McClain, a sixty-five-year-old retiree who restored cars for a hobby. McClain was targeted because Hedlund had bought a car from him some months earlier and thought McClain had money at his house. Entry was gained through an open window late at night while McClain was sleeping. Hedlund brought along his .22 rifle, which he had sawed-off to facilitate concealment. Defendants ransacked the front part of the house then moved to the bedroom. While he was sleeping, McClain was shot in the back of the head with Hedlund's rifle. Defendants then ransacked the bedroom, taking a pocket watch and three hand guns; they also stole McClain's car.

State v. McKinney , 185 Ariz. 567, 917 P.2d 1214, 1218–19 (1996) (en banc), superseded by statute on other grounds as stated in State v. Martinez , 196 Ariz. 451, 999 P.2d 795, 806 (2000) (en banc).

Hedlund and McKinney were each indicted on two counts of first degree murder and four other counts relating to the robberies. Both Defendants were tried in the same courtroom before dual juries. Before returning its verdict, Hedlund's jury asked whether he could "be convicted as an accomplice to the burglary and not be convicted in the murder charge." On November 12, 1992, the jury found Hedlund guilty of the second-degree murder of Mertens, the first-degree murder of McClain, and lesser charges. In a special verdict, the jury unanimously found that Hedlund was guilty of the premeditated murder of McClain, rejecting a felony murder theory. The trial court sentenced Hedlund to death for the first degree murder of McClain and to terms of imprisonment on the lesser charges.

Upon direct appeal, the Arizona Supreme Court affirmed the conviction and sentence. McKinney , 917 P.2d at 1214. In its opinion, the Arizona Supreme Court considered five claims relevant to this appeal: (1) whether the use of dual juries deprived Hedlund of his right to a fair trial, (2) whether ordering Hedlund to wear a visible leg restraint during trial deprived Hedlund of his right to a fair trial, (3) whether Hedlund was denied his right to a fair and impartial jury when the trial court refused to dismiss a juror distantly related to one of the victims, (4) claims surrounding the negotiation of a second plea deal, and (5) the consideration and weighing of aggravating and mitigating factors.

The Arizona Supreme Court denied relief on all claims and noted "ample evidence" that Hedlund killed McClain, including: Hedlund's finger and palm prints were on McClain's briefcase, which had been rifled during the burglary; Hedlund's fingerprints were on the magazine of his sawed-off rifle; the bullet that killed McClain was consistent with having come from Hedlund's rifle; Hedlund had modified his rifle by sawing it off in order to conceal it; Hedlund hid the rifle after the murder; Hedlund asked Morris to get rid of the rifle before police found it; and Hedlund expressed remorse after he was arrested.

After the Arizona Supreme Court rejected Hedlund's claims, Hedlund filed a petition for post-conviction relief (PCR) and then an amended PCR petition in the state trial court. On PCR review, the trial court denied the amended petition without an evidentiary hearing. The Arizona Supreme Court summarily denied Hedlund's petition for review.

On August 5, 2003, Hedlund filed the operative amended petition for a writ of habeas corpus in federal district court. Hedlund later filed a motion to expand the record and for evidentiary development as to certain claims. On March 31, 2005, the district court denied the motion to expand the record and denied six of Hedlund's claims. On August 10, 2009, the district court denied Hedlund's remaining claims, found Hedlund not entitled to habeas relief, and entered judgment.

The district court granted a certificate of appealability (COA) on three claims. We expand the COA to include three additional claims, as explained below. We otherwise deny Hedlund's request to expand the COA.

STANDARD OF REVIEW

"We review de novo the district court's decision to grant or deny a petition for writ of habeas corpus." Rhoades v. Henry , 598 F.3d 495, 500 (9th Cir. 2010). Because Hedlund initiated district court proceedings in 2002, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. See Lindh v. Murphy , 521 U.S. 320, 336–37, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). "Before we can apply AEDPA's standards, we must identify the state court decision that is appropriate for our review." Barker v. Fleming , 423 F.3d 1085, 1091 (9th Cir. 2005). Although "AEDPA generally requires federal courts to review one state decision," where "the last reasoned decision adopted or substantially incorporated the reasoning...