                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHARLES MICHAEL HEDLUND,                   No. 09-99019
          Petitioner-Appellant,
                                            D.C. No.
               v.                     2:02-cv-00110-DGC

CHARLES L. RYAN,
          Respondent-Appellee.
                                            OPINION


      Appeal from the United States District Court
               for the District of Arizona
      David G. Campbell, District Judge, Presiding

               Argued and Submitted
        December 6, 2012—Pasadena, California

                    Filed April 24, 2014

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

              Opinion by Judge N.R. Smith;
Partial Concurrence and Partial Dissent by Judge Wardlaw
2                       HEDLUND V. RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

   The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder.

    The panel held that the district court properly denied
relief on petitioner’s claims regarding (1) the use of a visible
leg brace, (2) the use of dual juries for petitioner and his co-
defendant, (3) juror bias, (4) ineffective assistance of counsel
during the plea process, (5) consideration of mitigating
evidence and the use of an unconstitutional causal nexus test
under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v.
Oklahoma, 455 U.S. 104 (1982), and (6) ineffective
assistance of counsel during the penalty phase, because the
state court decision denying relief was not contrary to, or an
unreasonable application of, clearly established federal law,
nor was it based on an unreasonable determination of the
facts.

    Judge Wardlaw concurred in part and dissented in part.
She explained that, because the relevant state court decisions
addressing petitioner’s claim under Eddings, and his
ineffective assistance of counsel and shackling claims are
unreasonable applications of clearly established Supreme
Court precedent and include unreasonable factual
determinations, she would reverse and remand this appeal.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     HEDLUND V. RYAN                        3

                        COUNSEL

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.


                         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. We affirm the district
court and hold that Hedlund has not raised a viable claim for
relief under § 2254.

    We address six claims raised in Hedlund’s petition:
(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; (5) whether all
mitigating evidence was considered under Lockett v. Ohio,
438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104
(1982), and their progeny; and (6) counsel’s performance
4                       HEDLUND V. RYAN

during the penalty phase.1 We conclude that the relevant state
court decision underlying each of Hedlund’s claims 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. See 28 U.S.C.
§ 2254(d).

         FACTS AND PROCEDURAL HISTORY

    Because the findings of fact in the last reasoned state
court decision are entitled to a presumption of correctness,
rebuttable only by clear and convincing evidence, we adopt
the statement of facts as presented by the Arizona Supreme
Court in its 1996 opinion on consolidated direct appeal. 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).

         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.



 1
   Because Hedlund has not shown that resolution of his remaining claims
is “debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003), we decline to reach the other uncertified issues on
appeal. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098,
1102–04 (9th Cir. 1999) (per curiam).
             HEDLUND V. RYAN                      5

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.
6                   HEDLUND V. RYAN

       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, 917 P.2d 1214, 1218–19 (Ariz. 1996) (en
banc), superseded by statute on other grounds as stated in
State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc).
                      HEDLUND V. RYAN                          7

     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 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
8                    HEDLUND V. RYAN

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,
dismissed the petition, 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 a 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
                     HEDLUND V. RYAN                          9

and Effective Death Penalty Act of 1996 (AEDPA) applies.
See Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). A
petitioner must overcome a high threshold to obtain relief
under AEDPA:

       Federal habeas relief may not be granted for
       claims subject to § 2254(d) unless it is shown
       that the earlier state court’s decision was
       contrary to federal law then clearly
       established in the holdings of [the Supreme]
       Court, § 2254(d)(1); or that it involved an
       unreasonable application of such law,
       § 2254(d)(1); or that it was based on an
       unreasonable determination of the facts in
       light of the record before the state court,
       § 2254(d)(2).

Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 785 (2011)
(internal quotation marks and citation omitted). The “only
definitive source of clearly established federal law under
AEDPA is the holdings (as opposed to the dicta) of the
Supreme Court as of the time of the state court decision.”
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003),
overruled on other grounds by Lockyer v. Andrade, 538 U.S.
63, 71 (2003).

    If Supreme Court “cases give no clear answer to the
question presented, . . . it cannot be said that the state court
unreasonably applied clearly established Federal law.”
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal
quotation marks omitted). In other words, “‘[i]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that
has not been squarely established by [the Supreme Court].’”
10                   HEDLUND V. RYAN

Harrington, 131 S. Ct. at 786 (quoting Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009)).

    In cases where a petitioner identifies clearly established
federal law and challenges the state court’s application of that
law, our task under AEDPA is not to decide whether a state
court decision applied the law correctly. See id. at 785.
Rather, we must decide whether the state court decision
applied the law reasonably. See id. (“‘[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.’” (quoting Williams v. Taylor,
529 U.S. 362, 410 (2000)). If the state court applied the law
reasonably, we must deny relief. See id. Thus, relief is
proper only “in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts
with [the Supreme Court’s] precedents.” Id. at 786.

                       DISCUSSION

               I. Visible Leg Brace at Trial

A. Background and procedural history

    The trial court ordered both Hedlund and McKinney to
wear a leg brace during trial, because it was important to
courtroom security. During a pretrial hearing, Deputy Sheriff
Jack Roger Lane testified that he was aware of a 1992 escape
plot by Hedlund and McKinney. The plan was to “jump one
of the guards, take his uniform and his weapon and one of
them would put the uniform on and they would walk out
together. They would handcuff the guard and leave him
there.” Lane received this information third hand from a
subordinate officer, who heard it from an inmate. McKinney
was specifically identified in the plot. The other individual
                         HEDLUND V. RYAN                                11

was someone “charged with murder,” but Hedlund was not
specifically named in the discussion on the record.2 Although
Lane could not confirm it, the prosecutor was aware of an
earlier escape attempt by McKinney during the summer of
1991.

    Hedlund’s counsel challenged the leg brace, arguing that
McKinney was the flight risk, not Hedlund. Recognizing his
responsibility to maintain courtroom security, the trial court
found it would be “irresponsible” to ignore the nature of the
charges filed and the fact that both Defendants would be in
close proximity to the jurors, staff, and others. The court
denied the request to remove Hedlund’s leg brace, finding
“reasonably reliable evidence that there is indeed a real
escape risk in this case.” The court concluded that the leg
brace was “a reasonable alternative to any other type of
restraint that could be imposed on [Hedlund and McKinney]
to assist in the preservation of a safe environment for
everyone [in the courtroom].” The court also attempted to
minimize any potential prejudice by making the leg brace less
visible. The court ordered new defense tables with backs
covering two feet of the four-foot gap between the table top
and the floor. The court also ensured that the Defendants
would be seated in the courtroom before the juries arrived so




 2
   When Lane was recalled at a later time, he testified that Hedlund’s “jail
card” (which tells officers about the risks posed by inmates), contained a
narrative about an escape plan. Specifically, the narrative read, “Warning,
take keys and clothing per class A1920. McKinney planning escape by
jumping guard per information, 300120, per request CPD 2525.” While
no specific mention of Hedlund was given in this narrative, the escape
warning was presumably applied to him as well because the narrative
appeared on Hedlund’s jail card.
12                        HEDLUND V. RYAN

the jurors would not see the Defendants walking stiff-legged
in the braces.3

    Hedlund’s counsel later filed multiple written motions
objecting to the leg brace. During a post-trial evidentiary
hearing, the court called Officer Richard Morris, one of the
deputies present during trial. Officer Morris testified that
during trial he was able to see the leg brace, similar to what
was shown in a picture taken from the jury box. Hedlund’s
investigator testified that she spoke with several jurors
regarding the leg brace. The jurors agreed that it was
understandable that the Defendants (who had been charged
with such serious crimes) were put in some sort of restraint.
While the restraints seemed to provide a sense of security to
the jurors, the jurors stated that the leg brace did not have any
impact on their verdict.

    On Hedlund’s motion for new trial, after considering the
escape risk by two Defendants charged with serious crimes
and considering all of the various options (including limiting
or increasing the number of deputies in the courtroom), the
court concluded that the leg braces were proper to ensure the
safety of the jurors, court staff, and everyone in the
courtroom. While Hedlund could have helped facilitate
concealment of the leg brace, the court noted that the leg
brace did not “overwhelm” the jury to cause them to convict
Hedlund on all charges.

  3
    Although the leg restraint was intended to be invisible, the record
demonstrates that it was in fact visible to the jury. Indeed, Respondent
conceded visibility at oral argument. Insofar as the restraints were visible,
however, the trial court found Hedlund largely to blame. In particular, it
found that “had [he] chosen to do so, [Hedlund] could have facilitated the
concealment of the leg brace by keeping [his] pants pulled down, and [his]
legs back from the front of the desk.”
                         HEDLUND V. RYAN                              13

     On direct appeal, the Arizona Supreme Court credited the
trial court’s record of security concerns, noting that “Hedlund
attempted an escape during the summer of 1991 and also
made plans with another capital defendant to escape by
attacking a guard and taking his uniform and gun.”4 The
court concluded that the leg restraint was not an abuse of
discretion, given the trial judge’s well-founded security
concerns and the absence of specific prejudice to Hedlund.

    On habeas review, the federal district court noted that the
Arizona Supreme Court erroneously attributed the 1991
escape attempt to Hedlund. However, the district court found
no indication, let alone clear and convincing evidence, that
the state court erred in finding both Hedlund and McKinney
involved in the 1992 escape plot.

B. Hedlund’s leg restraint was not imposed based on a
   clearly unreasonable determination of the facts, nor
   was its imposition contrary to, or an unreasonable
   application of, clearly established federal law.

      1. Standard of Review

    As an initial matter, Hedlund argues that we should
review this claim de novo because the Arizona Supreme
Court erroneously attributed McKinney’s 1991 escape
attempt to Hedlund. While the Arizona Supreme Court’s
recitation of that fact is in error, as the federal district court
correctly recognized, there is no indication that the trial court
or the Arizona Supreme Court on direct review erred in


  4
   As fully discussed below, this recitation of the facts is in error. The
record shows that it was McKinney, not Hedlund, who attempted an
escape in 1991.
14                      HEDLUND V. RYAN

concluding that Hedlund was involved in the 1992 escape
plot with McKinney. The trial court presumed that Hedlund
was the other capital inmate plotting an escape with
McKinney in 1992. Hedlund has not shown that this
presumption was an unreasonable determination of the facts.
Nor has he rebutted this factual determination with clear and
convincing evidence.

    Deputy Lane testified that an inmate (who knew
McKinney) overheard McKinney plotting with another
capital defendant. While the inmate-informant did not know
Hedlund by name, jail security personnel drew the inference
that the unnamed capital defendant was Hedlund. Jail
security personnel then acted upon this tip by noting the
security risk on Hedlund’s jail card. Thus, when the Arizona
Supreme Court stated that Hedlund made plans with another
capital defendant (i.e., McKinney) to escape, this was neither
factually erroneous nor objectively unreasonable based on
Deputy Lane’s testimony.5

     2. An essential state interest justified the leg
        restraint.

    The Arizona Supreme Court’s decision affirming the use
of the leg brace was not contrary to, or an unreasonable
application of, clearly established federal law. Ordering the
leg brace was justified by an essential state interest. The
Supreme Court has defined shackling as “the sort of
inherently prejudicial practice that . . . should be permitted


 5
   Even if we assume that the Arizona Supreme Court’s erroneous factual
statement (mis-attributing the 1991 escape attempt to Hedlund) is enough
to call into question the entirety of the factual findings regarding
shackling, conducting de novo review would not change the outcome.
                          HEDLUND V. RYAN                                 15

only where justified by an essential state interest specific to
each trial.”6 Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)
(emphasis added). This determination turns on the facts of
the case. Where an obstreperous defendant’s actions threaten
the proceedings, even fully binding and gagging the
defendant could be constitutionally permissible. Illinois v.
Allen, 397 U.S. 337, 344 (1970).

     Here, the trial court found that Hedlund posed a security
risk, thus warranting the minimally intrusive restraint. The
trial court based this finding on the alleged 1992 escape plot
involving both Defendants, the nature of the charges, and the
safety of all persons in the courtroom during trial. The trial
court’s conclusion, that specific security interests presented
by the facts of this case warranted the leg restraint, cannot be
said to be contrary to, or an unreasonable application of,
Holbrook (i.e., whether an essential state interest justified the
use of a leg brace in this case). Holbrook, 475 U.S. at 569.
See also Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir.
1989) (“Shackling is proper where there is a serious threat of
escape or danger to those in and around the courtroom, or

  6
    Where the decision to physically restrain a defendant violates due
process, on habeas review, a petitioner must show that the error had
“substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal
quotation marks omitted). “To determine whether the imposition of
physical restraints constitutes prejudicial error, we have considered the
appearance and visibility of the restraining device, the nature of the crime
with which the defendant was charged and the strength of the state’s
evidence against the defendant.” Larson v. Palmateer, 515 F.3d 1057,
1064 (9th Cir. 2008) (emphasis added). However, we have also
recognized that this multi-factor test is not clearly established federal law.
Walker v. Martel, 709 F.3d 925, 938 (9th Cir. 2013). In any event,
because we find that the use of a leg restraint did not violate due process,
we do not reach the issue of prejudice.
16                   HEDLUND V. RYAN

where disruption in the courtroom is likely if the defendant is
not restrained.”); Crittenden v. Ayers, 624 F.3d 943, 971 (9th
Cir. 2010) (defendant failed to rebut “by clear and convincing
evidence the trial court’s finding on the record that the
restraints were justified by a state interest specific to
Crittenden’s trial, namely his likelihood of escape or
‘nonconforming conduct.’”).

    The record shows that jail personnel became aware of the
1992 escape plan after a tip from another inmate. While the
inmate knew McKinney’s name, the inmate knew only that
the co-plotter was another inmate charged with capital
murder. Jail personnel then reviewed and acted upon this
information. We do not know how jail personnel made the
inference that the second inmate was Hedlund (e.g., whether
Hedlund was the only other capital murder defendant who
had been talking to McKinney, or was the only capital murder
defendant housed in close proximity to McKinney).
However, we do know that, after learning of the plot, jail
personnel applied special security procedures to both
Defendants and provided this information to the trial court.

     While the trial court based its conclusion regarding the
escape plot on information provided by jail personnel, the
trial court’s reliance on this testimony was not contrary to, or
an unreasonable application of, clearly established federal
law. The trial court could have used the jail’s security-based
decision as support for its conclusion that Hedlund posed an
escape risk, because such decisions are subjective and
discretionary. Cf. Rhodes v. Chapman, 452 U.S. 337, 350
n.14 (1981) (“[A] prison’s internal security is peculiarly a
matter normally left to the discretion of prison
administrators.”).
                     HEDLUND V. RYAN                       17

   The trial court relied on Deputy Lane’s assertion and
concluded as follows:

       I have been provided with what I have
       weighed and considered as reasonably reliable
       evidence that there is indeed a real escape risk
       in this case; perhaps not in the courtroom, but
       one that has been articulated outside the
       hearing of the Court in a fashion that indicates
       that both defendants were anticipated to be
       involved in it. . . . [There was] certainly some
       thought being given on the nature and mode
       of escape.

    Although the trial court based this decision on hearsay
coming from within the jail, there is no clearly established
federal law suggesting that such a finding is impermissible.
Challenging the trial court’s reliance upon such hearsay,
Hedlund cites Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.
2003). However, Gonzalez is inapplicable to this case. First,
Gonzalez applies the “less restrictive alternatives” test that
was not clearly established federal law for AEDPA purposes.
See Crittenden, 624 F.3d at 971–72 (recognizing that “case
law requiring a court to weigh the benefits and burdens of
shackling and pursue less restrictive alternatives was not
clearly established federal law” before Deck v. Missouri,
544 U.S. 622 (2005)). Second, while Gonzalez recognized
that the rules regarding physical restraints in California and
the Ninth Circuit are largely coextensive, id. at 902 n.1, the
language stating that a court may not rely upon “the
18                    HEDLUND V. RYAN

unsubstantiated comments of others” is drawn from
California precedent, not clearly established federal law, id.
at 902 (quoting People v. Mar, 52 P.3d 95, 107 (Cal. 2002)).

    It was not objectively unreasonable for the Arizona
Supreme Court to find an essential state interest based on
Lane’s testimony regarding the 1992 Hedlund/McKinney
escape attempt. Therefore, upholding the decision to impose
the leg brace was not contrary to, or an unreasonable
application of, clearly established federal law.

     3. Prejudice

    Because the Arizona Supreme Court’s adoption of the
finding that Hedlund’s leg brace was justified by an essential
state interest is not contrary to, or an unreasonable application
of, Holbrook, we do not reach the question of prejudice.

                    II. Use of Dual Juries

A. Background and procedural history

     Over the Defendants’ and prosecutor’s objections, the
trial court ordered the Defendants’ cases tried before dual
juries. The trial court reasoned that two trials would cause
needless duplication, the victims’ families would suffer twice,
and the only evidence that was not admissible to both juries
                         HEDLUND V. RYAN                               19

could be covered in a single afternoon.7 The court set forth
detailed procedures to be used at trial to avoid any problems.8

    Hedlund challenged the use of dual juries in a special
action to the Arizona Court of Appeals. See Hedlund v.
Sheldon, 840 P.2d 1008, 1009 (Ariz. Ct. App. 1992). The
court of appeals reversed, holding that the trial court
exceeded its authority under the Arizona Rules of Criminal
Procedure and the Arizona Supreme Court’s decision in State
v. Lambright. Id. However, the Arizona Supreme Court




  7
    The court arranged for this evidence to be heard separately to avoid a
possible Bruton v. United States, 391 U.S. 123 (1968), violation. In
Bruton, during a joint trial, the trial court instructed the jury that a
codefendant’s confession inculpating both the codefendant and the
defendant could be used only against the codefendant, and should be
disregarded with respect to the defendant. 391 U.S. at 124–25. Where the
jury was allowed to consider the codefendant’s confession, the Supreme
Court found that the confession “added substantial, perhaps even critical,
weight to the Government’s case in a form not subject to cross-
examination, since [the codefendant] did not take the stand. [The
defendant] thus was denied his constitutional right of confrontation.” Id.
at 128. The Court recognized that “[t]he unreliability of [inculpatory
statements by a codefendant] is intolerably compounded when the alleged
accomplice, as here, does not testify and cannot be tested by
cross-examination.” Id. at 136. The Court concluded that “in the context
of a joint trial we cannot accept limiting instructions as an adequate
substitute for petitioner’s constitutional right of cross-examination.” Id.
at 137.
  8
    Those procedures included separate voir dire of the jury panels, a
courtroom layout that allowed both Defendants full view of the jurors and
witnesses, separate preliminary instructions, separate opening statements,
separate reading of the charges, special procedures for handling
codefendant inculpatory statements, separate closing statements, and
special procedures for the return of the verdicts.
20                       HEDLUND V. RYAN

reversed the court of appeals,9 concluding that the decision to
empanel a dual jury is an “exercise of an individual judge’s
discretion to use a particular technique in order to meet a
specific problem in a single case.” Id. at 1011 (internal
quotation marks omitted). Thus, the court affirmed the
decision to impanel dual juries.

    Post-trial, the trial court rejected Hedlund’s renewed dual
jury challenge. The court found that it had eliminated the risk
of possible prejudice by empaneling dual juries rather than
having one jury consider both Defendants’ guilt. The court
concluded that this strategy worked, because the verdicts
reflected that the juries were able to do their jobs
intelligently.

B. The use of dual juries at trial was not contrary to, or
   an unreasonable application of, clearly established
   federal law.

    Because Hedlund cannot point to clearly established
federal law governing this claim, habeas relief is unavailable.
The Supreme Court has not spoken on the issue of dual juries,
and Hedlund cites no relevant authority.

    In Zafiro v. United States, 506 U.S. 534, 538–39 (1993),
the Court held that severance is not required in the face of
antagonistic defenses. Even where prejudice is shown, Rule
14 of the Federal Rules of Criminal Procedure “leaves the
tailoring of the relief to be granted, if any, to the district
court’s sound discretion.” Id. The Court went on to say that


  9
    At the same time, the supreme court also reversed its earlier decision
in State v. Lambright, 673 P.2d 1 (Ariz. 1983), cert. denied, 469 U.S. 892
(1984), which had found that the use of dual juries violated state law.
                      HEDLUND V. RYAN                         21

severance should be granted “only if there is a serious risk
that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Id. at 539.

    Hedlund argues that this claim is valid, because certain of
his specific trial rights were violated. While Zafiro holds that
severance should be granted if there were a serious risk that
a specific trial right would be compromised, Zafiro does not
apply to § 2254 cases. Zafiro was a direct-appeal case
originating in federal district court (i.e., a case in which the
Federal Rules of Criminal Procedure applied). See Collins v.
Runnels, 603 F.3d 1127, 1131–32 (9th Cir. 2010) (“By its
own wording, Zafiro only applies to federal and not state
court trials. It analyzes only the Federal Rules of Criminal
Procedure applicable to federal district courts.”), cert. denied,
131 S. Ct. 243 (2010).

    Even if we could apply Zafiro’s prejudice holding,
Hedlund has not identified any specific constitutional right
that has been violated. While he alludes to several
constitutional violations, none of these arguments is well
developed with citation to authority. To the extent Hedlund
argues that the prosecutor was improperly allowed to ask
leading questions or elicit ambiguous testimony, he does not
cite specific examples. Moreover, defense counsel had the
opportunity to object at trial and did so. Although some
objections were overruled, it is not clear the subject questions
were leading or ambiguous, and if so, whether these
evidentiary rulings were improper or harmed Hedlund in any
way.

   Even if ambiguous testimony or leading questions could
somehow amount to a constitutional violation, the testimony
22                    HEDLUND V. RYAN

did not prevent Hedlund from demonstrating lack of motive
or putting on a full defense. The jury heard testimony that
Hedlund had a steady job and did not need to steal for money,
and Lemon and Morris testified that Hedlund wanted nothing
to do with the early burglaries.

     Hedlund’s antagonistic defenses argument similarly fails.
There is no constitutional right to severance merely because
codefendants point the finger at each other. Moreover, the
trial court’s remedy of employing procedural safeguards for
the use of dual juries was within its discretion. Because none
of Hedlund’s dual jury arguments demonstrate prejudice that
is so “clear, manifest or undue that he was denied a fair trial,”
even if Zafiro applied, this claim fails. See Lambright v.
Stewart, 191 F.3d 1181, 1185–87 (9th Cir. 1999) (dual juries
are permissible in capital cases so long as they comport with
Due Process; denial of a motion to sever for antagonistic
defenses not reversible without a showing of clear prejudice).

                        III. Juror Bias

A. Background and procedural history

     On the second day of trial, one juror (“the Juror”) wrote
a letter to the trial court disclosing the fact that she discovered
she was distantly related to McClain, the second murder
victim. In the letter, the Juror explained that she had become
aware of this fact only that morning. When the Juror
informed her mother she was serving on a jury, her mother
stated that “she had read of a trial starting in Mesa in which
one of the victims had been married to a cousin of [the
juror’s] stepfather.” The Juror told her mother she could not
discuss the trial and did not want to hear anything further.
However, the Juror realized she would have to disclose this
                      HEDLUND V. RYAN                         23

to the judge, so she asked her mother the name of the victim
who was married to the stepfather’s cousin. The Juror stated
that she didn’t personally recognize the name of the victim
and had “never met, nor even heard of, [her] stepfather’s
cousin, who is deceased.” She then concluded with the
following statement regarding her ability to serve on the jury:
“I don’t believe it would affect my ability to be fair and
impartial, but I do not wish to compromise the proceedings in
any way, so I wish to make the court aware of the situation.”

    In response to the letter, the trial court held a hearing in
chambers to explore whether the Juror should remain on the
jury. The court read the Juror’s statement about impartiality
back to her and asked if this were her belief. She responded,
“Yes, it is.” In response to the court’s questions, the Juror
explained that she had never met her stepfather’s now
deceased cousin who used to be married to McClain. In fact,
until the conversation with her mother, she didn’t even know
the cousin existed. Hedlund’s counsel inquired about the
Juror’s relationship with her stepfather. The Juror explained
that they “have a very superficial relationship.”

    Hedlund’s counsel moved to strike the Juror for cause on
the basis that she was a distant relative of the victim. The
court stated, “given what she said here today I would not,
based on what I’ve heard . . . have stricken her for cause. . . .
She is now on the jury. And based on the circumstances she
has relayed to me, I’m going to deny the motion. She’ll
remain on the panel.”

    On appeal, the Arizona Supreme Court affirmed, finding
that nothing in the record suggested the Juror was untruthful
in stating she could be fair and impartial. The federal district
court agreed. The district court found no risk of “substantial
24                    HEDLUND V. RYAN

emotional involvement based on [the Juror’s] highly
attenuated connection with the victim, about which the
[J]uror was not even aware . . . .”

B. The trial court complied with clearly established
   federal law when it determined no juror bias was
   present.

     1. Hedlund has failed to prove actual bias.

    Because the trial court followed clearly established
federal law regarding actual juror bias, Hedlund’s claim fails
on this theory. In Remmer v. United States, the Supreme
Court held that juror bias should be determined “in a hearing
with all interested parties permitted to participate.” 347 U.S.
227, 229–30 (1954). In Smith v. Phillips, the Supreme Court
reversed a grant of habeas where the lower federal courts
found insufficient a hearing to determine juror bias. 455 U.S.
209, 214–16, 221 (1982). During the Smith trial, one of the
jurors applied for a job as an investigator with the DA’s
office. Id. at 212. The prosecutors were aware of the
application, but did not tell the court or defense counsel until
after the jury returned its verdict. Id. at 212–13. Upon
learning of the juror’s job application, the defendant moved
to set aside the verdict. Id. at 213. The trial court held a
hearing on this motion, at which both the prosecutors and the
juror testified. Id. After the hearing, the trial court found that
the juror was not biased as a result of his job application to
the DA; and no evidence suggested a “sinister or dishonest
motive” on the prosecutors’ part. Id. at 214. On habeas
appeal, the federal district court found the trial court’s bias
hearing insufficient and granted relief, which the Second
Circuit affirmed.
                     HEDLUND V. RYAN                         25

    The Supreme Court reversed the lower federal courts,
finding that the trial court’s hearing (exploring the issue of
juror bias) was sufficient to comply with due process. Id. at
221. The Court reiterated that it “has long held that the
remedy for allegations of juror partiality is a hearing in which
the defendant has the opportunity to prove actual bias.” Id.
at 215. The Court rejected the argument that a trial court
“cannot possibly ascertain the impartiality of a juror by
relying solely upon the testimony of the juror in question.”
Id. The Court disagreed that “the law must impute bias to
jurors” in this situation. Id. Rather than ordering a new trial
any time the issue of juror bias arises, the Court explained
that holding a hearing to determine actual bias, such as that
conducted by the trial court, is the appropriate course of
action. Id. at 217.

   The Smith court concluded:

       [D]ue process does not require a new trial
       every time a juror has been placed in a
       potentially compromising situation. Were that
       the rule, few trials would be constitutionally
       acceptable. The safeguards of juror
       impartiality, such as voir dire and protective
       instructions from the trial judge, are not
       infallible; it is virtually impossible to shield
       jurors from every contact or influence that
       might theoretically affect their vote. Due
       process means a jury capable and willing to
       decide the case solely on the evidence before
       it, and a trial judge ever watchful to prevent
       prejudicial occurrences and to determine the
       effect of such occurrences when they happen.
       Such determinations may properly be made at
26                    HEDLUND V. RYAN

        a hearing like that ordered in Remmer and
        held in this case.

Id. (footnote omitted).

    The Court recognized that hearings of this sort will
“frequently turn upon testimony of the juror in question,” but
rejected the contention that “such evidence is inherently
suspect.” Id. at 217 n.7. When a juror tries “as an honest
man to live up to the sanctity of his oath[, the juror] is well
qualified to say whether he has an unbiased mind in a certain
matter.” Id. Lastly, the Court reiterated that, because this
case was a § 2254 proceeding, the trial judge’s findings are
“presumptively correct” and cannot be overcome without
clear and convincing evidence. Id. at 218.

     The Arizona Supreme Court’s finding that the trial court
did not abuse its discretion in refusing to dismiss the Juror
was not contrary to, nor an unreasonable application of, Smith
and Remmer. The trial judge conducted a hearing involving
all interested parties to explore the issue of juror bias. At this
hearing, Hedlund had the opportunity to prove actual bias.
This is the remedy prescribed by the Supreme Court. Smith,
455 U.S. at 215.

    Hedlund challenges the sufficiency of the in-chambers
hearing, arguing that the hearing was cursory, defense
counsel was not given time to prepare, and it was the judge’s
duty to question the Juror sufficiently. Hedlund argues that
defense counsel could not be expected to conduct a vigorous
cross-examination that might place Hedlund in a negative
light. However, Smith does not dictate that an in-chambers
hearing is insufficient, must be of a particular length, or must
be conducted only after certain notice. Id.; see also Dyer v.
                        HEDLUND V. RYAN                              27

Calderon, 151 F.3d 970, 974–75 (9th Cir. 1998) (“An
informal in camera hearing may be adequate for this purpose;
due process requires only that all parties be represented, and
that the investigation be reasonably calculated to resolve the
doubts raised about the juror’s impartiality.”). Here, the trial
court questioned the Juror about her ability to be impartial, it
did not rush defense counsel as counsel familiarized himself
with the Juror’s letter, and it followed up with additional
questions. Based on the Juror’s responses that she was
unaware of both her stepfather’s now-deceased cousin and the
victim, her relationship with her stepfather was superficial,
and her belief was that she could remain impartial, the court
was satisfied that no actual bias was present. As the Ninth
Circuit explained in Calderon: “So long as the fact-finding
process is objective and reasonably explores the issues
presented, the state trial judge’s findings based on that
investigation are entitled to a presumption of correctness.”
Id. at 975. Thus, the court complied with clearly established
federal law.

    Although the Juror stated that she “believed” she could be
impartial, she did not equivocate and the judge found this
affirmation sufficient. Hedlund points to no authority
requiring more of an assurance from the Juror. See Bashor v.
Risley, 730 F.2d 1228, 1237 (9th Cir. 1984) (no error in
keeping juror when juror responded to question of whether
she could be impartial with “Yes, I think I could.”).10

 10
   Citing United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000),
Hedlund argues that the Juror’s statement was “somewhat equivocal.” In
Gonzalez, the Ninth Circuit noted the difference between a juror who is
somewhat indirect in their responses (Q: Would your husband’s
experience keep you from serving impartially? A: “I don’t believe so,
no.”; Q: Could you set aside your feelings and act impartially? A: “I
believe so, yes.”), and a juror who answers equivocally three times in a
28                        HEDLUND V. RYAN

     2. There is no clearly established law governing
        implied bias, and Hedlund has not shown that
        implied bias should apply here.

    There is no clearly established federal law regarding the
issue of implied bias. The Supreme Court has never
explicitly adopted or rejected the doctrine of implied bias.
See Fields v. Woodford, 309 F.3d 1095, 1104 (9th Cir. 2002)
(noting the fact that the “Supreme Court has never explicitly
adopted (or rejected) the doctrine of implied bias”), amended
on other grounds, 315 F.3d 1062 (9th Cir. 2002). Thus,
Hedlund’s claim fails on grounds of implied bias.11


row to whether she could be fair (“I will try to”; “Right. I’ll try”; and “I’ll
try”). Id. The court recognized that it would be acceptable to retain the
first juror, because after stating her belief, the juror followed up with “an
unqualified affirmative or negative” regarding impartiality. Id. The same
can be said for the Juror. In her letter, she initially stated “I don’t believe
it would affect my ability to be fair and impartial,” then when questioned
by the trial court, she added “an unqualified affirmative” when she was
asked to confirm her belief that she could be impartial (Q: “You state here
at the end that, ‘I don’t believe it would affect my ability to be fair and
impartial.’ Is that your belief?” A: “Yes, it is.”). While the trial court
asked the question somewhat inartfully, the Juror’s response does not
display equivocation. Moreover, the trial court credited her response after
asking further questions, observing her demeanor, and judging her
credibility. This finding is entitled to a presumption of correctness.
Rushen, 464 U.S. at 120.
   11
      Although not controlling, Justice O’Connor’s concurrence in Smith
expressed concern about cases involving juror misconduct. Therein, she
listed certain “extreme situations” in which she believed a bias hearing
may be inadequate and implied bias could be found. Examples may
include: “a revelation that the juror is an actual employee of the
prosecuting agency, that the juror is a close relative of one of the
participants in the trial or the criminal transaction, or that the juror was a
witness or somehow involved in the criminal transaction.” Smith,
455 U.S. at 222 (O’Connor, J., concurring) (emphasis added). Because
                         HEDLUND V. RYAN                               29

    Although the Ninth Circuit has presumed bias on a rare
occasion, it has based this finding on close relationships or
the fact that a juror has lied. See, e.g., United States v. Allsup,
566 F.2d 68, 71–72 (9th Cir. 1977) (bias of bank teller
employees presumed where defendant robbed another branch
of same bank and tellers had “reasonable apprehension of
violence by bank robbers”); Green v. White, 232 F.3d 671,
676–78 (9th Cir. 2000) (presuming bias biased on juror’s
pattern of lies). However, these cases are not clearly
established federal law. In any event, nothing in the record
suggests the Juror lied during voir dire or had a close
relationship with McClain.




she read the majority opinion as not foreclosing the use of implied bias in
certain situations, Justice O’Connor concurred. Id. at 224.

    Even if this concurrence could be construed as clearly established
federal law, the notion that implied bias could be found when a juror is a
close relative does not lead to the conclusion that implied bias should be
found when the juror is a former distant relative by virtue of two
marriages, one now dissolved and the former relative now deceased.
Moreover, Hedlund does not allege juror misconduct in this case. The
Juror was forthcoming as soon as she found out about the former relation
and there is no indication she tried to conceal bias to influence the
outcome of the trial.
30                       HEDLUND V. RYAN

       IV. Ineffective Assistance of Counsel during Plea
                            Process12

A. Background and procedural history

    Before trial, Hedlund reached a plea deal with the
prosecutor. During an informal chambers discussion, defense
counsel and the prosecutor were asked to explain the factual
basis for the plea, which offered a guilty plea for the second
degree murder of Mertens and theft with a prior for taking
McClain’s guns. The trial court rejected the plea agreement,
because it did not involve enough accountability for the
McClain homicide. The court suggested a plea involving a
burglary count with respect to McClain could be considered.
However, as discussed below, the court had other reservations
with respect to this and any future plea agreement. The
parties continued negotiating and reportedly arrived at a
second agreement consisting of a guilty plea for the second
degree murder of Mertens, and theft with a prior and burglary
non-dangerous with respect to McClain.

    On the day the second plea was to be presented in
chambers, Hedlund’s counsel instead called chambers and
asked the judge if he would recuse himself. When the judge
responded that he would not, Hedlund filed a motion for
recusal of judge, followed by a motion for change of judge.
A second judge heard the latter motion. The motion made
clear that Hedlund wanted to plead guilty to the new plea
agreement, but that he refused to do so in front of the trial


  12
    The district court declined to grant a COA on this issue. However,
because we conclude that the district court’s resolution of the issue is
“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003), we address it.
                     HEDLUND V. RYAN                        31

judge, Judge Sheldon. The second judge denied the motion
and trial began immediately. The substance of the motion
hearing is discussed below in the context of the ineffective
assistance of counsel analysis.

    On appeal, the Arizona Supreme Court questioned
whether a second plea was ever reached. The court also
noted that the prosecutor’s testimony at the hearing on the
change-of-judge motion was that Hedlund in fact rejected the
second plea. Thus, the court rejected the claim that the trial
court erred in any way with respect to the purported second
plea. The claim challenging counsel’s performance was
similarly rejected on PCR review.

B. The state PCR court did not unreasonably apply
   Strickland.

    The two-part test for demonstrating ineffective assistance
of counsel, set forth in Strickland v. Washington, 466 U.S.
688 (1984), is also “applicable to ineffective-assistance
claims arising out of the plea process.” Hill v. Lockhart,
474 U.S. 52, 57 (1985). We must first ask whether
“counsel’s assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. Counsel must
have “wide latitude . . . in making tactical decisions,” and
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. We “must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. In the
context of that presumption, we “must then determine
whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance.” Id. at 690.
32                         HEDLUND V. RYAN

    Second, if counsel’s performance were deficient, we
assess prejudice. Prejudice “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome
of the plea process.” Hill, 474 U.S. at 59. “In other words,
in order to satisfy the ‘prejudice’ requirement, the defendant
must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Id. (footnote omitted).

    Under AEDPA, review of the state court’s application of
Strickland is “doubly deferential” to the performance of
counsel, because a petitioner must show that the state court’s
ruling was an objectively unreasonable application of
Strickland. 28 U.S.C. § 2254(d)(1); see also Bell v. Cone,
535 U.S. 685, 698–99 (2002); Knowles v. Mirzayance, 129 S.
Ct. 1411, 1420 (2009).

       1. It was not objectively unreasonable for the state
          PCR court to conclude that counsel’s performance
          was not deficient.

    The state court did not unreasonably apply Strickland.
Because Hedlund has not shown that his counsel performed
deficiently in making the tactical decision to attempt to move
Hedlund’s plea proceedings before a different judge, relief is
unavailable. Hedlund’s arguments that counsel failed to
present the second plea in a timely manner and that there was
a reasonable probability that the trial judge would have
accepted that plea are not supported by the record.13


  13
     As an initial matter, it is not clear that the second offer was still valid
at the time in question. According to the prosecutor, Hedlund rejected the
second plea offer two days before defense counsel called chambers and
asked the judge to recuse himself.
                    HEDLUND V. RYAN                       33

    First, on the day both counsel were supposed to appear in
chambers to discuss the second plea agreement, Hedlund’s
counsel called the court to ask informally whether the judge
would recuse himself. Counsel explained that “Mr. Hedlund
would be willing to enter into a plea agreement but not in
front of Judge Sheldon.” The judge’s assistant responded that
the judge would not recuse himself and since counsel did not
appear that day as required, the court would no longer
entertain further plea agreements. Based on Judge Sheldon’s
response, Hedlund’s counsel filed a motion for change of
judge for cause in which he challenged “the bias exhibited by
the court with regard to Mr. Hedlund.” In the motion,
counsel explained:

       Hedlund is willing to enter into [the second]
       plea agreement in any court other than
       this court. Defendant Hedlund feels that this
       court has become biased against him.
       He feels that he will not be offered a realistic
       opportunity to persuade this court at the
       time of sentencing that any sentence other
       than the maximum consecutive sentence is
       appropriate. This feeling is based, in part, on
       the court’s sua sponte decision to empanel
       dual juries, the denial of all substantive
       pretrial motions filed by the defense and the
       court’s demeanor leading up to trial. . . . The
       court’s failure to recuse itself would be
       tantamount to forcing the death penalty upon
       defendant Hedlund. As the court is aware,
       there is a significant amount of evidence
       against Mr. Hedlund in these cases. It is Mr.
       Hedlund’s purpose to avoid the death peanlty
       in this case.
34                   HEDLUND V. RYAN

    At the motion hearing before another judge, Judge
Sheldon testified regarding his concerns with the first plea
agreement and the fact that a second plea agreement was
never formally offered. When Hedlund’s counsel examined
Judge Sheldon, Judge Sheldon also explained that (1) he was
concerned about the plea being commensurate with
culpability, (2) he took into account victim letters received
from McClain’s family, and (3) continuing the plea process
when a plausible plea was not on the table would only waste
time and thwart the arrangements for a single trial with dual
juries.

    In his closing remarks, defense counsel argued why he
thought Judge Sheldon was biased and why it would result in
an unfair trial for Hedlund. With respect to the plea process,
counsel highlighted the fact that Hedlund refused to plead
before Judge Sheldon. Specifically, counsel stated that
Hedlund

       would be willing to enter into a plea but not in
       front of that Court [Judge Sheldon]. He
       would be willing to enter it in front of any
       other Court and this is again, a plea Judge
       Sheldon would most likely have been
       amenable to, but Mr. Hedlund felt he would
       not get a fair shake and still the Court said, no,
       we will not recuse ourselves so let justice be
       done.

Counsel concluded with an impassioned argument about the
justice system and the importance of maintaining the
community perception of fairness to victims and defendants
alike. Counsel pleaded he was not asking for a handout, but
“[w]hat he [was] asking on behalf of [Hedlund] is fairness,
                         HEDLUND V. RYAN                                35

the ability to be heard before a Court without the appearance
of impropriety.”

    In rebuttal, counsel argued that, when you put all of the
things Judge Sheldon did together, “it is enough for
[Hedlund] and I to believe for the community to say, hold it,
he is not getting a fair shake. There is the appearance of
impropriety in reading those [victim] letters at that time and
not giving him the benefit of a presentence report.” Counsel
argued that the letters were not merely victim letters, but ex
parte communications from state witnesses who also
happened to be victims. Counsel reiterated that rejection of
the plea to facilitate moving forward with the dual jury
procedure was also improper.

    This record demonstrates that counsel’s motion to have
Hedlund’s case moved before a different judge was purely a
tactical decision.14 Counsel apparently honestly believed that
Hedlund could not get a “fair shake” in front of Judge
Sheldon. Even though counsel believed Judge Sheldon was
likely to accept the second plea, counsel persisted with the
request. He persisted, because he thought Hedlund faced an
undue risk of bias and would surely receive a death sentence
from Judge Sheldon if the second plea agreement were not
accepted and the case proceeded to trial. Counsel’s written
motion and arguments made clear that it was Hedlund’s
primary goal at this point to avoid the death penalty. We
must give deference to counsel’s tactical decision to do
whatever he could to put his client in front of a non-biased
judge (who was not pre-inclined to sentence Hedlund to


 14
    With respect to preserving the plea in the record, counsel set forth the
terms of the plea in his written motion and explained the terms of the plea
at the motion hearing.
36                       HEDLUND V. RYAN

death). It was not error for the state PCR court to conclude
that counsel’s performance was not deficient. Indeed,
counsel made strong arguments about the judge having ex
parte communication with the state’s witnesses (who were
also victims) and gave many reasons for wanting the case
moved before another judge.

    Hedlund’s and the dissent’s argument that counsel missed
the deadline for the second plea agreement is a red herring.
At base, this argument again challenges counsel’s tactical
decision. On the day defense counsel and the prosecutor
were supposed to appear in chambers to discuss the second
plea agreement, counsel instead put the wheels of recusal in
motion.15 He called chambers requesting recusal. When the
judge declined, he proceeded with a formal motion to have
the recusal motion heard before another judge so that the plea
process could continue in front of an unbiased jurist and
without the dual jury deadline hanging over his head. This
too was a tactical decision; it was not an act of incompetency.


     15
        The dissent criticizes defense counsel’s failure to pursue
simultaneously the plea negotiations before Judge Sheldon and the recusal
motion. However, this criticism ignores defense counsel’s rationale in
seeking recusal.

     In his motion to recuse, defense counsel stated that “Hedlund and the
State have come to a [sic] agreement which is within the range suggested
by the court” and that “Hedlund is willing to enter into this plea
agreement in any other court than this court.” (emphasis added). Having
procured a tentative plea agreement that would allow Hedlund to avoid
death, defense counsel decided to withdraw from plea negotiations before
Judge Sheldon (where Hedlund refused to enter the plea agreement) and
tried to move the plea negotiations to another court (where Hedlund would
enter the plea agreement). Defense counsel’s decision not to pursue plea
negotiations in a court where his client refused to enter a plea agreement
does not fall below Strickland’s deferential standard.
                     HEDLUND V. RYAN                        37

Because counsel’s performance did not fall outside of the
wide range of professionally competent advice, the state
courts did not unreasonably apply the first prong of
Strickland.

   2. No prejudice has been shown.

    Even assuming the state PCR’s court’s application of
Strickland was objectively unreasonable, Hedlund has not
shown a reasonable probability that, but for counsel’s errors,
Hedlund would not have gone to trial. In other words, the
record does not demonstrate that, if counsel would have
presented the second plea agreement to Judge Sheldon
(instead of calling chambers to ask for recusal), there is a
reasonable probability Judge Sheldon would have accepted
the agreement and Hedlund would have avoided the death
penalty. See Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012)
(“In these circumstances a defendant must show that but for
the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to
the court . . . , that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment
and sentence that in fact were imposed.”).

    Although Hedlund argues that the second plea with
respect to the McClain homicide would have complied with
the range of acceptable penalties to which the trial court
would have agreed, it is unlikely that the court would have
accepted the plea as to either the Mertens or the McClain
crimes.

   First, with respect to the McClain homicide, while Judge
Sheldon had indicated that first degree burglary would be a
38                   HEDLUND V. RYAN

starting point, “[a]t that point, [Judge Sheldon] had not made
up [his] mind whether or not that would be an appropriate
disposition because [he] still . . . continued to have serious
reservations about the disposition of this case given the
charges against [Hedlund] . . . .” Judge Sheldon testified with
respect to the first plea agreement, “Quite frankly, I was very
surprised there had not been a plea to First Degree Murder
with the State stipulating it would not seek the death penalty,
and I was surprised there had been a plea to Second Degree
Murder and I think from what I gathered in [defense
counsel’s] conversations, that [counsel] shared my
reservations about being able to establish a factual basis for
Second Degree Murder to a Felony Murder charge because
the law is quite clear, there are no lesser included offenses to
Felony Murder.” Based on the court’s statements, this plea
would not have provided sufficient accountability for the
McClain homicide. There is nothing else in the record
suggesting a reasonable probability that the court would have
accepted the new offer of a plea to theft with a prior and
burglary non-dangerous with respect to McClain.

    Second, with respect to Mertens, during the hearing on
the change-of-judge motion, Judge Sheldon testified that,
after reviewing the first plea agreement, he “continue[d] to
have reservations about [the second degree murder plea for
the Mertens homicide] and as I indicated to [defense counsel],
at the conclusion of that hearing, that I was – [defense
counsel] had indicated to me apparently [he] and [the
prosecutor] were going to continue plea negotiations or try
and work something out.” Judge Sheldon further testified
that he “continued to have reservations as you all did in
stating to me you weren’t sure whether or not a plea to
Second Degree Murder, you would be able to establish a
factual basis, so there were reservations . . . between all
                     HEDLUND V. RYAN                       39

parties at that point.” With respect to the first plea
agreement, even after the parties recited a factual basis for
second degree murder, the court’s concerns “were not
dispelled” as to whether the plea could be accepted for the
Mertens homicide. Again, there is nothing in the record to
suggest that the court’s concerns would have been dispelled
such that it would have accepted the second plea agreement’s
identical offer of second degree murder for the Mertens
crime.

    Third, Judge Sheldon expressed concern about “disparate
treatment given to . . . co-defendants” and whether this would
create due process concerns under existing Supreme Court
precedent. Judge Sheldon also explained that, if it turned out
Hedlund was just as culpable or more culpable than
McKinney, he would have been allowed less severe
punishment under the plea agreement while McKinney faced
the death penalty. Counsel was given the opportunity to
explain during the informal plea discussion how Hedlund was
less culpable than McKinney, but the judge “simply did not
hear it.”

    In sum, Judge Sheldon expressed (1) ongoing reservations
about even accepting a second degree murder plea for the
Mertens homicide, (2) concern that the plea reflect the
appropriate amount of culpability for the McClain homicide
(given the strong evidence against Hedlund), and (3) a desire
to avoid disparate sentences. Moreover, the record indicates
that Hedlund was not willing to enter a plea agreement in
front of Judge Sheldon. When defense counsel called Judge
Sheldon’s chambers asking the judge to recuse himself, the
explanation defense counsel provided was that “Hedlund
would be willing to enter into a plea agreement but not in
front of Judge Sheldon.” He provided the same explanation
40                       HEDLUND V. RYAN

in his motion to recuse.16 On this record, it cannot be said
that, if Hedlund’s counsel had presented the second plea to
Judge Sheldon, there is a reasonable probability it would have
been accepted and the death penalty avoided. Thus, Hedlund
has failed to show prejudice.

       V. Consideration of Mitigating Evidence under
                     Lockett/Eddings17

A. Background and procedural history

    During the penalty phase of trial, the trial court found
evidence of Hedlund’s tortured childhood to be compelling
and credible. However, the court found that the mitigating
factors of Hedlund’s childhood abuse and long-term alcohol
use did not outweigh aggravating factors. The court reached
this conclusion because, at the time of the crime, these factors
did not affect Hedlund’s behavior or prevent him from
knowing right from wrong. The trial court thus sentenced
Hedlund to death.

    When the Arizona Supreme Court conducted an
independent review of the mitigating factors, it struck one of
Hedlund’s aggravating factors and reweighed the remaining
aggravating factor against the mitigating evidence. The



 16
    These portions of the record belie the dissent’s contention that “there
is no evidence in the record that Hedlund himself did not want to enter a
plea in front of Judge Sheldon.”
  17
    The district court declined to grant a COA on this issue. However,
because we conclude that the district court’s resolution of the issue is
“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003), we address it.
                     HEDLUND V. RYAN                        41

supreme court then found that the aggravating factor was not
overcome.

     The federal district court also found that Hedlund’s trial
court fulfilled its duty to consider all of the mitigating
evidence and that it did not impose a relevancy test “or any
other barrier” to consideration of this evidence. The district
court concluded that no constitutional error arose when the
trial court assigned less weight to the family-background and
alcohol mitigating evidence because it did not influence
Hedlund’s criminal conduct.

B. The Arizona Supreme Court properly applied Lockett,
   Eddings, and their progeny.

   In Lockett v. Ohio, 438 U.S. 586 (1978), the Supreme
Court held that:

       [T]he Eighth and Fourteenth Amendments
       require that the sentencer . . . not be precluded
       from considering, as a mitigating factor, any
       aspect of a defendant’s character or record
       and any of the circumstances of the offense
       that the defendant proffers as a basis for a
       sentence less than death. . . .

       Given that the imposition of death by public
       authority is . . . profoundly different from all
       other penalties, . . . [the sentencer must be free
       to give] independent mitigating weight to
       aspects of the defendant’s character and
       record and to circumstances of the offense
       proffered in mitigation . . . .
42                       HEDLUND V. RYAN

Id. at 604–05 (finding Ohio death penalty statute invalid
where it permitted consideration of only three mitigating
circumstances).

    Later, in Eddings v. Oklahoma, the Supreme Court
applied Lockett in a case where the trial judge found he could
not consider in mitigation evidence of the defendant’s family
history.18 455 U.S. 104, 112–13 (1982). The appeals court
affirmed the trial court, finding that the mitigation evidence
was “not relevant because it did not tend to provide a legal
excuse” for responsibility for the crime. Id. The Supreme
Court reversed, explaining that,

         [j]ust as the State may not by statute preclude
         the sentencer from considering any mitigating
         factor, neither may the sentencer refuse to
         consider, as a matter of law, any relevant
         mitigating evidence. . . . The sentencer . . .
         may determine the weight to be given relevant
         mitigating evidence. But they may not give it
         no weight by excluding such evidence from
         their consideration.

Id. at 113–15.19


  18
     In Eddings, the sentencing judge made clear, on the record, that he
could not consider certain evidence as a matter of law. He stated: “[T]he
Court cannot be persuaded entirely by the . . . fact that the youth was
sixteen years old when this heinous crime was committed. Nor can the
Court in following the law, in my opinion, consider the fact of this young
man’s violent background.” 455 U.S. at 109 (alteration in original).
  19
     The Court later explained that “Eddings makes clear that it is not
enough simply to allow the defendant to present mitigating evidence to the
sentencer. The sentencer must also be able to consider and give effect to
                       HEDLUND V. RYAN                             43

    In Tennard v. Dretke, the Supreme Court rejected a
“nexus test” that would find mitigating evidence relevant only
where it bears a causal nexus to the crime. 542 U.S. 274, 287
(2004) (“[W]e cannot countenance the suggestion that low IQ
evidence is not relevant mitigating evidence . . . unless the
defendant also establishes a nexus to the crime.”). Citing
Lockett/Eddings, the Court cautioned that the jury must be
given an effective vehicle with which to weigh mitigating
evidence so long as the defendant has met a “low threshold
for relevance,” which is satisfied by “evidence which tends
logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have mitigating
value.” Id. at 284–85.

    In Smith v. Texas, the Court again considered the use of
a nexus test to determine whether any mitigating evidence is
relevant. 543 U.S. 37, 45 (2004). The Court “unequivocally
rejected” any test requiring a causal nexus between mitigating
evidence and the crime. Id. We have held that Tennard and
Smith are retroactively applicable to decisions such as the
Arizona Supreme Court’s 1996 decision in this case. See
Schad v. Ryan, 671 F.3d 708, 723 (9th Cir. 2009) (per
curiam), cert. denied, 133 S. Ct. 432 (2012).

   Thus, under federal law clearly established by the
Supreme Court, we review (1) whether the trial court
considered all relevant mitigating evidence, as required by
Lockett and Eddings; and (2) whether the Arizona Supreme


that evidence in imposing sentence.” Penry v. Lynaugh, 492 U.S. 302,
319 (1989) (internal quotation marks omitted), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (holding that
executions of mentally retarded criminals constitute cruel and unusual
punishment under the Eighth Amendment).
44                   HEDLUND V. RYAN

Court applied an unconstitutional causal nexus test to exclude
evidence proffered in mitigation, contrary to, or an
unreasonable application of, Tennard and Smith.

    The Arizona Supreme Court did not exclude any of
Hedlund’s mitigating evidence. Nor did it employ an
unconstitutional nexus test. Therefore, its conclusion that the
aggravating circumstance “clearly outweighs the minimal
mitigating evidence,” was not contrary to, nor an
unreasonable application of, clearly established federal law.

     1. All mitigating evidence was considered as required
        by Eddings.

    The Arizona Supreme Court did not violate Eddings,
because it considered all mitigating evidence presented by
Hedlund. The Arizona Supreme Court clearly understood
and applied the controlling Supreme Court precedent. See
McKinney, 917 P.2d at 1226. While the trial court was
required to consider all mitigating mental health evidence, the
Arizona Supreme Court recognized that the trial court was
vested with “broad discretion . . . to determine the weight and
credibility given to it.” Id. Thus, because the trial judge did
not fail to consider the experts’ psychological testimony but
instead found some of the opinions lacking in credibility, the
Arizona Supreme Court properly concluded that Hedlund’s
constitutional rights were not violated. See Lopez v. Schriro,
491 F.3d 1029, 1037–38 (9th Cir. 2007) (reviewing court’s
conclusion that trial court had reviewed all mitigating
evidence is not objectively unreasonable under AEDPA when
based on trial court’s statement that it reviewed all such
evidence).
                     HEDLUND V. RYAN                         45

     The Arizona Supreme Court’s decision demonstrates that
no mitigating evidence was excluded. The Arizona Supreme
Court considered and shared the trial court’s view of the
mitigating evidence. It noted that childhood abuse “does not
necessarily have substantial mitigating weight absent a
showing that it significantly affected or impacted a
defendant’s ability to perceive, to comprehend, or to control
his actions.” McKinney, 917 P.2d at 1227. Because no such
evidence was offered, the reviewing court concluded that the
trial court did not err in declining to extend leniency based on
these circumstances. Id. The reviewing court also found
little evidence that alcohol impaired Hedlund’s judgment. Id.

    With respect to the aggravating circumstances, the
Arizona Supreme Court struck the use of Hedlund’s second
degree murder conviction as a statutory aggravating factor
constituting a prior conviction for a crime of violence. Id. at
1229. Where Hedlund could have been convicted on a theory
of reckless indifference, the court found that this conviction
did not qualify as a crime of violence. Id. The court upheld
the statutory aggravating factor of pecuniary gain based on
Hedlund’s killing for the purpose of financial gain. Id. at
1231.

    Because one aggravating factor was stricken, it was
necessary to reweigh the remaining aggravating factor against
all of the mitigating factors. Id. Because “the [trial] judge
did not improperly exclude mitigating evidence at sentencing
and the mitigating evidence [was] not of great weight,” the
Arizona Supreme Court found that it could properly reweigh
the evidence rather than remand to the trial court. Id. The
court stated, “In our reweighing, we must decide whether the
sole aggravator – pecuniary gain – outweighs the mitigating
circumstances discussed above or whether those mitigators
46                   HEDLUND V. RYAN

are sufficiently substantial to call for leniency.” Id. The
court found that, “[i]n comparison to the mitigating
circumstances here, the quality of the aggravating
circumstances is great.” Id. The court noted that, in some
cases where pecuniary gain was the only aggravating factor,
the death penalty was not imposed. Id. However, in
Hedlund’s case, his conduct gave “great weight to the
aggravating circumstance.” Id. The court therefore
concluded that “the aggravating circumstance of pecuniary
gain clearly outweighs the minimal mitigating evidence.” Id.

    The foregoing analysis by the Arizona Supreme Court
demonstrates that no mitigating evidence was excluded.
Rather, it was considered and weighed against the
aggravating factor of pecuniary gain. This procedure
comports with Eddings, which requires only that all
mitigating evidence be considered. Eddings, 455 U.S. at
113–15 (stating that while the sentencer may not exclude
mitigating evidence as a matter of law, “[t]he sentencer . . .
may determine the weight to be given relevant mitigating
evidence”).

     While the Arizona Supreme Court’s consideration of the
mitigating circumstances largely mirrored that of the trial
court, a review of the sentencing transcript shows that the
record supports the Arizona Supreme Court’s decision. At
sentencing (tracking the rule announced in Lockett), the trial
court noted that “[t]he sentence imposed should reflect a
reasoned, moral response to the defendant’s background,
character, and the crime.” The court recognized the
“individualized sentence” requirement and specifically cited
its duty under Eddings and Lockett to “weigh carefully, fairly,
objectively, all of the evidence offered at sentencing,
                      HEDLUND V. RYAN                          47

recognizing that not everyone who commits murder should be
put to death.”

    Turning to the mitigating evidence, the trial court
discredited an expert opinion that Hedlund’s conduct was
affected by alcohol. The court stated that “there was [no]
reliable, credible evidence to support the conclusion that the
information relied upon by Dr. Shaw was accurate or
truthful,” where that information was based on Hedlund’s
self-serving statements. Although the trial court nonetheless
“considered evidence of alcohol consumption as evidence of
mitigation, there [was] little to demonstrate that it in any
[way] substantially affected the defendant’s ability to
understand the unlawfulness of his conduct.” Thus, because
it was not reliable and credible, the court assigned little
weight to the mitigating evidence of alcohol use. The
Arizona Supreme Court found the trial court did not err and
similarly gave the mitigating evidence of alcohol use little
weight. Id. at 1227. Neither court excluded this evidence in
violation of Eddings.

    Next, the trial court considered evidence of Hedlund’s
upbringing. However, the court found that “there was no
persuasive testimony presented that leads to the conclusion
that the abuse . . . the defendant suffered as a child resulted in
him being under unusual or substantial duress at the time of
the murders.” The Arizona Supreme Court largely adopted
the trial court’s view of this evidence and found that it was
not substantially mitigating to overcome the aggravating
factor. Id. Again, neither court excluded the evidence in
violation of Eddings. Because all mitigating evidence was
considered, there was no constitutional error.
48                   HEDLUND V. RYAN

     The dissent believes the sentencing court betrayed its
responsibility under Eddings because it “never indicated that
its analysis . . . , clearly requiring a nexus between the child
abuse and the crime, went to the weight it was giving the
evidence, rather than its relevance.” However, the sentencing
court stated that it had reached its decision “after carefully
considering and weighing all of the aggravating or mitigating
factors,” including “the child abuse which the Court finds is
a fact.” (emphasis added). If the sentencing court had
unconstitutionally determined that the child abuse were
irrelevant, as the dissent suggests, there would have been no
need to weigh it against the aggravating factors.

    Even if the dissent’s erroneous reading of the record were
correct, we may not infer unconstitutionality from a
sentencing court’s silence as to how it used the causal nexus
test. Such an inference would fly in the face of Supreme
Court precedent, which requires that we “presum[e] that [the]
state courts know and follow the law.” Woodford v. Viscotti,
537 U.S. 19, 24 (2002).

    Hedlund argues that a state court may not simply give “lip
service” to mitigating evidence by merely saying it
considered the evidence; instead, no barriers may prevent the
sentencer from giving effect to all mitigating evidence.
Hedlund identifies no such barriers in this case. In Penry, the
Court reversed and remanded a death sentence under
Lockett/Eddings where the jury was unable to give effect to
all mitigating evidence. See Penry, 492 U.S. 302 at 328.
Unlike in Penry, however, the sentencer’s review of
mitigating evidence in Hedlund’s case was not constricted by
statutory special issue questions or any other limiting
checklist of factors to be considered in mitigation. See id. at
323–25, 328. Although Arizona law provides for statutory
                         HEDLUND V. RYAN                                49

mitigating factors, one cannot exclude evidence in mitigation
simply because it does not meet the criteria of a statutory
factor.20 Indeed, such a rule would run contrary to Supreme
Court authority. The Arizona Supreme Court’s independent
consideration of Hedlund’s mitigating evidence illustrates the
rule allowing for broad consideration of all mitigating factors.
Its consideration of such evidence tracked the trial court’s
review of that evidence. In recognition of the rule that
mitigating evidence may not be categorically excluded, the
trial court accepted the mitigating factors of Hedlund’s
“dependent personality traits, his past drug and alcohol abuse,
and child abuse,” notwithstanding the fact that none rose to
the level of a statutorily enumerated factor.

   After considering all of the mitigating factors, the Arizona
Supreme Court found that the aggravating circumstance




    20
       While a sentencer may assign statutory mitigating factors more
weight, this does not render non-statutory mitigating factors weightless
either in principle or in practice. In some cases, the Arizona Supreme
Court has reversed the death penalty without specifically finding any
statutory mitigating factors, based on its conclusion that the mitigation
presented, even without a causal connection to the crime, outweighed the
aggravating circumstance of pecuniary gain. See, e.g., State v. Rockwell,
775 P.2d 1069, 1079 (Ariz. 1989) (“This defendant’s character and
background, together with his age at the time of the murder and the unique
circumstances of his conviction, cause us to conclude that a sentence of
death is inappropriate in this case.”); State v. Marlow, 786 P.2d 395, 402
(Ariz. 1989) (“[T]he result of our review discloses one substantial
aggravating factor to be weighed against any mitigation that appears in the
record. On the other side of the scale, the trial court did not weigh at all
a substantial mitigating factor, the dramatic disparity in sentence between
the defendant’s death sentence and the co-defendant’s four year prison
term.” (emphasis added)).
50                       HEDLUND V. RYAN

heavily outweighed the minimal mitigating evidence.21 Id. at
1231. At no time did the court demonstrate an inability to
give effect to this evidence, based on Arizona law or
otherwise. Instead, the court considered all the mitigating
evidence and, in its sound discretion as sentencer, gave it less
weight than the aggravating evidence. Because nothing stood
in the way of the state courts’ ability to give effect to
Hedlund’s mitigating evidence, there was no constitutional
error under Penry.

       2. The Arizona Supreme Court did not apply an
          unconstitutional nexus test to Hedlund’s
          mitigating evidence.

    While we have recognized that, in some cases, the
Arizona Supreme Court has improperly applied a causal
nexus test before considering mitigating evidence to be
relevant,22 we conclude that the court did not apply such a test
here. Notably, absent a “clear indication” that the state court
applied an unconstitutional causal nexus test, “we cannot
assume the courts violated Eddings’s constitutional
mandates.” Schad, 671 F.3d at 724. Nothing in the Arizona
Supreme Court’s independent review, nor in the trial court’s
sentencing transcript (to the extent the supreme court adopted


   21
      Similarly, the trial court concluded that “none of the mitigation
considered by the Court in this case, either individually or cumulatively,
are sufficiently substantial to call for leniency.”
  22
    Schad, 671 F.3d at 722–23 (“Before Tennard was decided, Arizona
courts recognized a nexus test, similar to that rejected in Tennard, to
preclude consideration of evidence of childhood abuse unless the abuse
bore a causal connection to the crime of conviction. . . . After Tennard,
however, the Arizona Supreme Court has clarified that the nexus test
affects only the weight of mitigating evidence, not its admissibility.”).
                         HEDLUND V. RYAN                               51

the trial court’s reasoning), suggests that any mitigating
evidence could not, as a rule, be given effect based on lack of
nexus.23 While the Arizona Supreme Court ultimately
decided that the cumulative weight of the mitigating evidence
did not call for leniency, this conclusion is based on the
weight assigned to mitigating factors, not the outright
rejection of those factors based on a lack of nexus. Assigning
less weight to mitigating factors because they did not
influence Hedlund’s conduct at the time of the crime does not
show that the sentencer was prevented from giving effect to
such evidence because it lacked a causal nexus to the crime.
See Schad, 671 F.3d at 723 (“The United States Supreme
Court has said that the use of the nexus test in this manner is
not unconstitutional because state courts are free to assess the
weight to be given to particular mitigating evidence.”).
Instead, it demonstrates that a sentencing court may exercise
its discretion in assigning particular weight to particular
evidence. As we have previously recognized, this approach
is not contrary to clearly established federal law. See Towery
v. Ryan, 673 F.3d 933, 944–45 (9th Cir. 2012), cert. denied,
132 S. Ct. 1738 (2012).

    In Towery, we reviewed the Arizona Supreme Court’s
rulings that (1) the sentencing court “must consider the
defendant’s upbringing if proffered but is not required to give
it significant mitigating weight” and (2) the question of
“[h]ow much weight should be given proffered mitigating

 23
    The sentencing hearing transcript demonstrates that the trial court did
not express an inability to weigh the mitigating evidence. Indeed, the
court considered evidence of Hedlund’s personality traits, substance
abuse, and abuse as a child. The court discussed these mitigating factors
several times, suggesting that it gave effect to whether leniency was
warranted, and did not just pay “lip service” to the mitigation, as Hedlund
argues.
52                    HEDLUND V. RYAN

factors is a matter within the sound discretion of the
sentencing judge.” Id. at 944. We found these rulings to be
“correct statements of the law.” Id. We also affirmed the
ruling that “a difficult family background is not always
entitled to great weight as a mitigating circumstance,” and
“where the defendant fails to connect his family background
to his criminal conduct, a trial judge could give it little or no
weight or value.” Id. at 944–45.

    Here, like in Towery, the Arizona Supreme Court noted
that “[a] difficult family background, including childhood
abuse, does not necessarily have substantial mitigating weight
absent a showing that it significantly affected or impacted a
defendant’s ability to perceive, or to comprehend, or to
control his actions.” McKinney, 917 P.2d at 1227. Affirming
a sentencing court’s discretion over the weight to assign
mitigating evidence in no way alleviates the sentencing
court’s obligation to consider any and all mitigating evidence
without regard to a causal nexus.

    This case is different from Williams v. Ryan, where we
granted habeas relief after the Arizona state court refused to
consider drug addiction as a mitigating factor. See 623 F.3d
1258, 1270–71 (9th Cir. 2010) (holding that it was error for
state court to refuse to consider the mitigating circumstance
of substance abuse simply because Williams “offered no
evidence showing that he was intoxicated when he murdered
[the victim]”).       Here, the Arizona Supreme Court
acknowledged that the trial court did not refuse to consider
evidence of substance abuse or family history, because it
lacked a nexus to the crime. Rather, it considered and
credited evidence of both, but concluded that their weight was
not great enough to overcome the aggravating circumstance.
Specifically, the Arizona Supreme Court stated, “In
                     HEDLUND V. RYAN                        53

comparison to the mitigating circumstances, the quality of the
aggravating circumstance is great.” McKinney, 917 P.2d at
1231. Thus, it concluded that “the aggravating circumstance
of pecuniary gain clearly outweighs the minimal mitigating
evidence.” Id. Clearly established federal law mandates that
the sentencer consider all relevant mitigating evidence
without regard to whether that evidence bears a causal nexus
to the crime; it says nothing about the weight the sentencer
must assign to such evidence. See Eddings, 455 U.S. at 115
(recognizing that in some cases, evidence of a difficult family
history and emotional disturbance “properly may be given
little weight”).

    The dissent makes much of the Arizona Supreme Court’s
citation to State v. Ross, 886 P.2d 1354 (Ariz. 1994). In Ross,
the Arizona Supreme Court stated “[a] difficult family
background is not a relevant mitigating circumstance unless
‘a defendant can show that something in that background had
an effect or impact on his behavior that was beyond the
defendant’s control.’” Id. at 1363 (emphasis added) (quoting
State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989)). The
dissent argues that the Arizona Supreme Court’s citation to
Ross demonstrates that it held the mitigation evidence
irrelevant and unconstitutionally excluded it for its lack of
causal nexus to the crime.

    We reject this argument, just as we rejected a similar
argument in Towery, where the Arizona Supreme Court
supported its decision with a citation to Wallace. See Towery,
673 F.3d at 946. While the Towery court deemed Wallace
(and, by extension, Ross) “constitutionally suspect,” this does
not end the analysis. See id. We must review the record in
Hedlund’s case to determine whether the sentencing court and
the Arizona Supreme Court actually applied the
54                       HEDLUND V. RYAN

unconstitutional test. See id. For the reasons stated above,
we conclude that the Arizona Supreme Court did not apply an
unconstitutional nexus test, notwithstanding the citation to
Ross.     Because Hedlund’s mitigating evidence was
considered without regard to a causal nexus to the crime,
there is no constitutional error.

  VI. Ineffective Assistance of Counsel During Penalty
                         Phase24

A. Background and procedural history

    At trial, Hedlund presented expert testimony from Dr.
Ronald Holler, who had conducted a “Neuropsychological
and Psychological Evaluation” of Hedlund before trial. Dr.
Holler noted that Hedlund reported drinking up to twelve
beers on the night of the burglary-murder. He found that
Hedlund’s intoxication was a function of his “alcohol
dependence.” He then discussed in some detail Hedlund’s
“extremely dysfunctional” early childhood experiences. Dr.
Holler found that Hedlund had a “misguided loyalty” toward
McKinney and had a limited understanding of his
“personality inadequacies.”         Regarding Hedlund’s
“Intellectual/Neuropsychological Functioning,” he found a
“low average” IQ. He also found Hedlund may have scored
low on certain tests due to an “underlying depressive status”
and that Hedlund displayed “a slight indication of a learning
disability.”



  24
    The district court declined to grant a COA on this issue. However,
because we conclude that the district court’s resolution of the issue is
“debatable amongst jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003), we address it.
                     HEDLUND V. RYAN                        55

    Dr. Holler “evaluate[d] various aspects of [Hedlund’s]
intellectual, cognitive, neuropsychological, [and] emotional
functioning as related to his background with his family and
other aspects of his environment.” One of the tests Dr. Holler
administered was the “Concise Neuropsychological Scale.”
He focused on “the abuse [Hedlund] suffered and the
resulting psychoneurological effects” of that abuse. He
opined that Hedlund suffered from “Post-traumatic Stress
Disorder [PTSD], as well as some intertwined disorders of
much consequence, including the alcohol dependence and a
depressive disorder.” He explained how the psychological
and physical abuse Hedlund suffered can lead to these
disorders.

   Specifically, Dr. Holler explained the “neuropsychological
impairment” that can result and stated that Hedlund showed
“some indications of a very significant but yet in a sense mild
neuropsychological deficit.” Counsel then specifically
inquired about brain damage.

       Q: Did you find any indication of right
       hemisphere brain dysfunction or disorder?

       A: There were indications of this. His verbal
       IQ was 91, performance IQ was 78.
       Essentially we talk about the verbal IQ as
       being primarily associated with left
       hemisphere functioning and this does refer
       then to receptive and expressive speech,
       reading capability and verbal memory. . . .
       [The test results provide] further evidence that
       the right hemisphere is not functioning as well
       as the left hemisphere. This may well be
       related to some of the physical abuse that he
56                   HEDLUND V. RYAN

       experienced, including being hit on the back
       of the head.

    Dr. Holler went on to explain that damage to the right
hemisphere could affect someone’s judgment. On redirect, he
clarified that, while Hedlund was not “severely retarded” or
“totally psychotic,” Hedlund did have “neurological
impairments which impaired his judgment.”

    Dr. Charles Shaw, M.D., a medical addiction specialist,
also testified regarding Hedlund’s alcoholism. He testified
that alcoholism can lead to organic brain damage. He also
believed that Hedlund’s actions with respect to the crimes
were influenced by his alcoholism.

    At sentencing, the trial court did not find credible
evidence to support Dr. Shaw’s conclusion that Hedlund was
affected by alcohol at the time of the crimes. Instead, the
court found that Hedlund had a motive to lie about the extent
of his alcohol consumption and his statements conflicted with
those of his sisters and a presentence report from an earlier
conviction.

    The court also discounted Dr. Holler’s testimony, because
(1) he did not raise PTSD in his initial report, instead
announcing it for the first time while testifying; (2) some of
the foundational information upon which Dr. Holler based his
opinions was self-reported by Hedlund; and (3) some of the
conclusions were based on an erroneous presentence report.

    During PCR proceedings, Hedlund proffered a report
from Dr. Marc S. Walter, a neuropsychologist. Dr. Walter
conducted a battery of tests on Hedlund and found certain
results consistent with a diagnosis of alcohol abuse. He also
                     HEDLUND V. RYAN                        57

found “Cognitive Disorder, Not Otherwise Specified,” a
disorder “that used to be termed Organic Mental Disorder and
indicates the presence of brain damage,” and stated that
Hedlund may have “residual problems” with PTSD. In light
of these results, Dr. Walter concluded that Hedlund had brain
damage at the time of the offenses in 1991.

    Dr. Walter admitted that the test used by Dr. Holler was
a “screening test for brain damage.” He expressed a
preference, however, for the battery of tests he administered
because they are a “comprehensive neuropsychological test
battery.” Dr. Walter stated that screening tests such as those
used by Dr. Holler “are relatively insensitive and often miss
the presence of brain damage.” Dr. Walter concluded by
stating that he believed that Hedlund’s brain damage, as
augmented by his alcohol use, prevented Hedlund from
“understand[ing] the consequences of his involvement in the
burglaries and the murders . . . .”

    The PCR court reviewed Dr. Walter’s report but
concluded that counsel’s efforts during sentencing did not fall
below the standard expected of reasonable death-penalty trial
lawyers. The court noted that Dr. Walter’s report would not
support an insanity defense, and nothing in the record
suggested Hedlund was unaware of his involvement in the
crimes. The court continued that “[t]he fact that an attorney,
after the fact, obtains an opinion from an expert which might
have supported an alternative theory at trial does not
demonstrate, without more, that the strategy chosen by
defense counsel at the time of trial was ineffective.”

    The court rejected the argument that counsel did not
present sufficient evidence of the neuropsychological effects
of Hedlund’s child abuse and alcohol abuse. The court stated
58                   HEDLUND V. RYAN

that it was adequately informed of these conditions by Drs.
Holler and Shaw. The court found that Dr. Walter’s report
was not substantially or significantly different from the
earlier expert reports. The court challenged Dr. Walter’s
conclusion that Holler did not diagnose brain damage, which
in fact he did.

    The district court reviewed all of the expert testimony and
reports proffered during the penalty phase and in PCR
proceedings. Based on that review, the court concluded that
it was not objectively unreasonable for the PCR court to find
that (1) the penalty phase experts’ opinions and PCR expert’s
opinion were substantially the same, and (2) Dr. Holler
entertained a diagnosis of brain impairment. The district
court also found that the PCR court did not unreasonably
apply Strickland. It rested this holding only on the
performance prong, finding analysis of the prejudice prong
unnecessary.

B. The state court did not unreasonably apply Strickland.

    On federal habeas review of ineffective assistance of
counsel claims, courts apply the clearly established federal
law set forth in Strickland v. Washington. E.g., Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011). Under Strickland,
we must first ask whether “counsel’s assistance was
reasonable considering all the circumstances.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). Counsel is granted
“wide latitude . . . in making tactical decisions,” and
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. We must also “indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. In the
context of that presumption, we “determine whether, in light
                     HEDLUND V. RYAN                        59

of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.” Id. at 690.

    Even a “professionally unreasonable” error by counsel
will not warrant setting aside a judgment, unless it was
“prejudicial to the defense.” Id. at 691–92. To establish
prejudice, a “defendant must show 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.

    The PCR court’s factual findings were not objectively
unreasonable. The findings, that the reports of Drs. Holler
and Shaw were substantially the same as Dr. Walter’s
proffered report and that Dr. Holler diagnosed brain damage,
are supported by the record. Dr. Holler found that Hedlund
suffered from alcohol dependence, PTSD, and a depressive
disorder. Dr. Holler also explained how neurological
impairment can result from those factors, and that Hedlund
had indications of “a very significant but yet in a sense mild
neuropsychological deficit.” Dr. Walter admitted that the test
used by Dr. Holler screens for brain damage and Dr. Holler
found that Hedlund had a right hemisphere dysfunction or
disorder and that this could impair his judgment. Dr. Shaw
testified about Hedlund’s alcoholism and its effects on
Hedlund. Similarly, Dr. Walter opined about brain damage
and its impact at the time of the offense.
60                   HEDLUND V. RYAN

     1. It was not objectively unreasonable for the state
        PCR court to conclude that counsel’s performance
        was not deficient.

    The PCR court’s application of Strickland was also not
unreasonable.     Hedlund’s counsel’s performance was
reasonable considering the circumstances. Counsel hired a
psychologist to testify about Hedlund’s various mental and
personality defects, including neuropsychological
impairments to his brain. Counsel also hired a psychiatrist to
testify about Hedlund’s severe alcoholism. Counsel’s tactical
decisions of precisely which experts to hire must be afforded
deference. Hedlund’s proffer of additional experts on
collateral review who say substantially the same thing does
not call into question the reasonableness of counsel’s
decisions. Counsel’s strategy to present testimony about
Hedlund’s troubled childhood and ongoing psychological,
neuropsychological, and medical conditions cannot be said to
fall outside the wide range of professionally competent
assistance.

    Hedlund argues that the PCR court contradicted itself
with respect to the expert testimony presented during
sentencing. Specifically, on PCR review, the court found
testimony by Drs. Holler and Shaw sufficient to paint a
picture of Hedlund’s condition. However, Hedlund argues
that when sitting as the sentencing court, the court discredited
the same experts’ testimony.

   That the sentencing court discredited certain aspects of
Drs. Holler and Shaw’s testimony does not discredit the PCR
court’s conclusion that their opinions were substantially the
same as that proffered by Dr. Walter. During sentencing, the
court discredited Dr. Shaw’s conclusion that Hedlund was
                          HEDLUND V. RYAN                                61

affected by alcohol at the time of the crimes. The court found
this self-reported information suspect, because of Hedlund’s
motive to lie. The court also questioned why Dr. Holler
raised PTSD for the first time while testifying–when he had
not cited it in his report–and noted that some of the
conclusions were based on erroneous information contained
in a PSR. These observations do not call into question Dr.
Shaw’s conclusion that Hedlund suffered from alcoholism or
Dr. Holler’s conclusion that Hedlund suffered from a brain
impairment.25 They simply speak to the weight afforded the
experts’ opinions in determining mitigation–weight based on
reliability and credibility. To the extent Dr. Walter’s
testimony also relied on the sentencing transcript, reports
from family members, and information self-reported by
Hedlund, it would be unreliable for the same reasons.


  25
     The record does not support the dissent’s argument that “[b]ecause
Hedlund’s counsel had presented unreliable expert testimony, it was as if
he had presented none at all.” Although the sentencing court discredited
Dr. Shaw’s conclusion that Hedlund was affected by alcohol at the time
of the crimes, the sentencing court did not discredit Dr. Shaw’s opinion
that Hedlund suffered from alcohol abuse generally. While there was a
question as to the nature and extent of the alcohol abuse, the sentencing
court specifically stated that it would be considered as a mitigating factor.
With respect to Dr. Holler, the sentencing court explained that it afforded
the testimony “little weight,” because the failure to include PTSD in the
original expert report was “unpersuasive at best.” While the sentencing
court questioned the value of Dr. Holler’s opinions, it did not discredit the
opinion on child abuse; however, it found no duress from such abuse at
the time of the murders.

     The sentencing court went on to explain how it considered Hedlund’s
“dependent personality traits, his past drug and alcohol abuse, and child
abuse.” These are all areas on which Hedlund’s experts opined. While
the sentencing court discredited certain aspects of the experts’ testimony
based on unreliability, the record demonstrates that the sentencing court
did not wholly exclude the experts’ testimony.
62                    HEDLUND V. RYAN

    Hedlund also argues that counsel did not have “a
complete picture” of his brain damage and, if counsel would
have hired a neuropsychology expert, the expert could have
“definitively concluded” that Hedlund had brain damage.
However, as explained above, the PCR court did not make
objectively unreasonable factual determinations that evidence
of brain damage presented at sentencing was similar to that
proffered to the PCR court. Hedlund has also failed to rebut
the presumption that counsel’s preparation of the expert
witnesses for sentencing fell below the wide range of
professionally acceptable conduct.

     2. Prejudice

    Because Hedlund has not shown that counsel’s
performance was deficient, we need not reach the question of
prejudice.

                       CONCLUSION

     The district court properly denied relief on Hedlund’s
claims regarding (1) use of the visible leg brace, (2) use of
dual juries, (3) juror bias, (4) ineffective assistance of counsel
during the plea process, (5) consideration of mitigating
evidence under Lockett/Eddings and their progeny, and
(6) ineffective assistance of counsel during the penalty phase.
Denial was proper because the Arizona Supreme Court’s
decision denying relief was not contrary to, or an
unreasonable application of, clearly established federal law,
nor was it based on an unreasonable determination of the
facts.

     AFFIRMED.
                         HEDLUND V. RYAN                               63

WARDLAW, Circuit Judge, concurring in part and dissenting
in part:

    I respectfully dissent from Parts I, IV, V, and VI of the
majority opinion, and concur in the remainder.1 Because the
relevant state court decisions addressing Hedlund’s Eddings,2
ineffective assistance of counsel, and shackling claims are
unreasonable applications of clearly established Supreme
Court precedent and include unreasonable factual
determinations, I would reverse and remand this appeal.

    Charles Michael Hedlund’s constitutional rights were
violated at every stage of his proceedings, from his plea
negotiations to his sentencing, yet the Arizona courts
affirmed on direct appeal and denied his petition for post-
conviction relief. First, Hedlund’s trial counsel allowed a
plea offer to expire that would have likely saved Hedlund
from a death sentence. Then, during the trial that resulted
from that failure, Hedlund was shackled, in view of the jury
and without an individualized determination that he, rather
than his co-defendant James McKinney, posed a threat to
courtroom security or an escape risk. After Hedlund was
convicted, his counsel failed to present an expert who could
have testified definitively that Hedlund suffered from brain
damage. Finally, the sentencing court erroneously refused to


 1
   I agree that the remaining uncertified issues are not “debatable amongst
jurists of reason,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and
therefore need not be discussed.
 2
    As Chief Judge Kozinski recently predicted, Hedlund’s petition is yet
another example of the state courts applying an unconstitutional causal
nexus test before imposing and affirming a sentence of death. See Poyson
v. Ryan, 743 F.3d 1185, 1188 (9th Cir. 2013) (Kozinski, C.J., dissenting
from the denial of rehearing en banc).
64                   HEDLUND V. RYAN

consider Hedlund’s mitigation evidence because Hedlund
could not show that any of his mitigating circumstances bore
a causal nexus to his crimes.

    In examining the reasonableness of the state courts’
decisions under 28 U.S.C. § 2254(d), we look to the last
reasoned state court opinion on the claim. Milke v. Ryan,
711 F.3d 998, 1005 (9th Cir. 2013) (citing Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991)). The relevant state
courts’ decisions were “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”
and were “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). These constitutional
violations had a “substantial and injurious effect or influence
in determining the jury’s verdict,” Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)), thus entitling Hedlund to habeas
relief. Therefore, I would reverse the district court’s decision
and remand with instructions to grant a conditional writ of
habeas corpus setting aside Hedlund’s conviction and
sentence.

                               I.

    Although Hedlund raises a number of constitutional
claims, not all of them are legally cognizable. A complete
picture of Hedlund’s trial and sentencing, however, is
important to appreciate the context in which Hedlund’s
constitutional rights were violated. Hedlund’s case should
never have proceeded to trial. First, the trial court judge,
Judge Sheldon, rejected a plea agreement that the government
and Hedlund had agreed upon after reading letters from one
                     HEDLUND V. RYAN                       65

of the victims’ families asking him to do so, but indicated he
would accept an agreement with greater accountability for
McClain’s death. Second, Hedlund’s trial counsel allowed
the deadline to expire for a second plea agreement, which
would have spared Hedlund from a death sentence while
providing for the greater accountability that Judge Sheldon
demanded.

    Hedlund was tried with his half-brother and co-defendant
James McKinney. Judge Sheldon initially granted Hedlund’s
unopposed motion for a severance, but then sua sponte
decided to empanel dual juries instead, over both the
defendants’ and State’s objections and contrary to then
Arizona law. See State v. Lambright, 673 P.2d 1, 7 (Ariz.
1983). On a petition for special action, the Arizona Court of
Appeals vacated the trial court’s order pursuant to Lambright.
The Arizona Supreme Court reversed, and overruled its own
precedent, by overturning Lambright and holding that Judge
Sheldon’s decision to empanel a dual jury was properly
within his discretion. Hedlund v. Sheldon, 840 P.2d 1008,
1011 (Ariz. 1992) (en banc). Judge Sheldon also decided,
based on ex parte, triple-hearsay inmate information that did
not even identify Hedlund, that Hedlund should be shackled,
and then conducted a hearing on the matter only so he could
make a record of his decision.

    Hedlund’s counsel moved to recuse Judge Sheldon based
on the appearance of impropriety in his sua sponte and one-
sided pretrial rulings. On the same day that Judge Sheldon
conducted a hearing on the shackling issue, he was defending
himself against Hedlund’s recusal motion before one of his
colleagues. Hedlund’s recusal motion was denied. Judge
Sheldon then refused to direct that a curtain or other barrier
be placed around Hedlund’s table so that the jury would not
66                      HEDLUND V. RYAN

see the shackles. Judge Sheldon proceeded to conduct the
trial in a manner unfair to Hedlund, including conducting the
voir dire of a key prosecution witness—voir dire that
Hedlund’s counsel had requested—outside of Hedlund’s
counsel’s presence. Because Judge Sheldon concluded that
McKinney and Hedlund had an “identity of interests,” he
determined that McKinney’s counsel’s presence was
sufficient representation of Hedlund.

    At sentencing, Judge Sheldon found Hedlund’s expert
mental health evidence not credible, dismissed his mitigating
evidence of child abuse as not related to the crime, and
sentenced Hedlund to death.

    Finally, when Judge Sheldon “became” the state post-
conviction relief (“PCR”) court,3 he acted as a witness in the
case, opining that Hedlund’s counsel had been very diligent
and effective, and denied Hedlund’s request to develop the
record through an evidentiary hearing where his experts could
testify. The Arizona Supreme Court summarily affirmed the
PCR court’s denial of relief. It is clear that Hedlund did not
receive a fair trial, and has not yet had access to a meaningful
review of his claims. Under AEDPA’s deferential standard,
Hedlund’s Eddings, ineffective assistance of counsel, and
shackling claims entitle him to habeas relief.




 3
   As a consequence of Arizona’s state habeas system, see Ariz. R. Crim.
P. 32.3, Hedlund’s petition for post-conviction relief was reviewed in
superior court by the same judge who presided over his underlying
criminal case.
                       HEDLUND V. RYAN                             67

                                 II.

    Under Eddings v. Oklahoma, 455 U.S. 104 (1982), a state
court may not treat mitigating evidence of a defendant’s
background as “irrelevant or nonmitigating as a matter of
law” merely because it lacks a causal connection to the crime.
Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per
curiam), cert. denied, 132 S. Ct. 1738 (2012). Here, the state
courts did precisely what Eddings prohibits: they found
mitigating evidence of Hedlund’s abusive childhood as a
matter of fact, but treated it as nonmitigating as a matter of
law because it lacked a causal connection to the crime.

                                 A.

    Words fail to adequately describe the horrors that
Hedlund suffered as a child. Indeed, Hedlund’s mental health
expert, Dr. Holler, described Hedlund’s childhood as
“probably as gruesome as anything that I have come across in
25-plus years in this business.” The testimony of Hedlund’s
half-sisters and aunt paint a ghastly picture of extreme
physical and emotional abuse. Hedlund and his three half-
siblings were raised in the outskirts of Chandler, Arizona, by
Shirley and James McKinney, Sr. Shirley and James Senior,
however, were not Hedlund’s biological parents. Hedlund
was conceived during an extramarital affair that Hedlund’s
mother, who was James Senior’s first wife, had with a man
named Charles Hedlund. Growing up with the McKinneys,
Hedlund was reminded daily that he was not a McKinney.4



 4
   Hedlund lived with Shirley and James McKinney, Sr. from ages six to
fourteen. When he was twelve years old, Shirley told him that he had
been conceived during his biological mother’s affair with another man,
68                      HEDLUND V. RYAN

    Hedlund lacked even the basic necessities as a child. He
grew up living in filth and was rarely clothed. His home was
covered in animal feces, bile, urine, used female hygiene
products, and dirty diapers. Hedlund and his siblings were
forced to share a very small room with a variety of
domesticated and exotic animals, including, at times, a goat,
a calf, a spider monkey, and snakes. The children were
terrified of snakes, but Hedlund’s stepparents nevertheless
housed the snakes in the children’s closet. Hedlund and his
siblings were also not allowed to eat anything unless they
received permission from Shirley McKinney. At least once
a month, she would lock the children in the house while she
went shopping and threaten that if they ate anything while she
was gone, she would beat them. During the summer, Shirley
would lock Hedlund and his siblings out of the house in heat
exceeding 100 degrees. Because they were usually wearing
only underwear, Hedlund and his siblings were frequently
sunburned while locked out of their home. On one occasion,
Hedlund’s aunt saw the children locked outside in the heat,
while Shirley and her own biological daughter, who was
favored and spared from Shirley’s abuse, sat inside and told
Hedlund and his siblings that they were not allowed to drink
water from the hose outside. In effect, Shirley and James
Senior treated Hedlund and his siblings like the animals they
housed in the children’s bedroom.

   Shirley McKinney tormented her stepchildren, especially
Hedlund, who was the oldest and the “bastard.” She hit them
with belts, old wooden boards, skillets, wire hangers, shovels,
garden hoses, or anything else that was within reach when she
grew angry. She struck indiscriminately and was often


and that James Senior was not, as Hedlund had believed up until then, his
biological father.
                     HEDLUND V. RYAN                        69

helped by her own biological daughter, who held down her
step-siblings as they were beaten. Hedlund’s half-sister
Donna testified that she and her half-siblings were punched
in the face at least once a day. Hedlund’s half-sisters and
aunt testified to a number of particular episodes where
Hedlund was beaten. For instance, James Senior kept a
vicious dog that once attacked Hedlund, who was a small
child at the time, and injured his face so badly that he had to
receive over 200 stitches. The day after Hedlund received
medical treatment, Shirley and her daughter woke Hedlund
up in the early morning and beat him for over an hour
because his medical treatment had cost them money.
Hedlund’s aunt also testified to another incident where she
saw Shirley violently beat Hedlund and his half-brother
James McKinney. James had been kicked off the school bus
for fighting and as Shirley was marching him to the house,
she clipped off a foot-long piece of a water hose and began
beating James with it. James was small enough at the time
that Shirley was holding him in the air by his arm while she
beat him with the water hose. Hedlund tried to stop Shirley’s
strikes by jumping on her arm and yelling, “Momma, stop it.
Momma, stop it.” In response, Shirley pushed Hedlund off
and struck him across the face with the hose. Hedlund fell to
the ground, hitting the back of his head against the concrete
sidewalk.

    By any measure, Hedlund’s savage childhood was a
mitigating factor that the Arizona courts should have
considered. But because they applied the prohibited causal
nexus test, Hedlund has not yet received the constitutionally-
required review that he is due.
70                   HEDLUND V. RYAN

                              B.

    It is well established that when Hedlund was sentenced in
1993, Eddings and its progeny required that the sentencer
give “independent mitigating weight” to all relevant
mitigating evidence. See Eddings, 455 U.S. at 110 (internal
quotation marks omitted). At that time, the Supreme Court
had already clarified that the Eighth and Fourteenth
Amendments specifically require the sentencer to fully
consider all mitigating evidence, regardless of the lack of a
causal connection between the evidence and the defendant’s
crime of conviction:

       There is no disputing that this Court’s
       decision in Eddings requires that in capital
       cases the sentencer . . . not be precluded from
       considering, as a mitigating factor, any aspect
       of a defendant’s character or record and any
       of the circumstances of the offense that the
       defendant proffers as a basis for a sentence
       less than death. Equally clear is the corollary
       rule that the sentencer may not refuse to
       consider or be precluded from considering any
       relevant mitigating evidence. These rules are
       now well established . . . .

Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (emphasis in
original) (internal quotation marks and citations omitted); see
also McKinney v. Ryan, 730 F.3d 903, 921–22 (9th Cir. 2013)
(Wardlaw, J., dissenting), vacated and reh’g en banc granted,
2014 WL 1013859 (9th Cir. March 12, 2014).

   The last reasoned state court decision addressing
Hedlund’s Eddings claim is the Arizona Supreme Court’s
                      HEDLUND V. RYAN                         71

decision on direct appeal. The Arizona Supreme Court
reviewed the sentencing court’s mitigation findings for abuse
of discretion and held that the sentencing court “did not err in
concluding that Hedlund’s family background was not
sufficiently mitigating to require a life sentence.” State v.
McKinney, 917 P.2d 1214, 1227 (Ariz. 1996) (en banc),
superseded by statute on other grounds as stated in State v.
Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc). Then,
after concluding that the trial judge erred in finding one of the
two aggravating factors it applied in Hedlund’s case, the
Arizona Supreme Court reweighed the aggravating and
mitigating circumstances. However, the Arizona Supreme
Court applied no “reasoned and individualized” independent
analysis of the evidence of childhood abuse that Hedlund
presented in mitigation. Cf. Towery, 673 F.3d at 945 (“The
[Arizona] supreme court also independently weighed the
mitigating evidence against the aggravating circumstances to
determine whether leniency was called for. As part of that
review, the court considered whether evidence of Towery’s
difficult childhood should be given substantial weight.”)
(internal alterations, quotation marks, and citations omitted).
Instead, the Arizona Supreme Court adopted the sentencing
court’s analysis of the mitigation evidence, noting only that
“the judge did not improperly exclude mitigating evidence at
sentencing and the mitigating evidence is not of great
weight.” McKinney, 917 P.2d at 1231. Because the Arizona
Supreme Court adopted the sentencing court’s mitigation
analysis, reviewing it for abuse of discretion and conducting
no reasoned and individualized independent analysis of its
own, we must “look at both decisions to fully ascertain the
reasoning of the last decision.” Id. at 944 n.3 (quoting Barker
v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)).
72                  HEDLUND V. RYAN

    The sentencing court found evidence of Hedlund’s
tortured childhood “compelling and credible” and then
presented its analysis of the mitigation evidence:

      I have considered [the childhood abuse]. I
      think it is the Court’s obligation to consider it,
      whether or not it complies with the
      requirements in (G)(1) [a statutory mitigating
      factor].

      I have also considered all of the other
      mitigating factors which were set forth in
      three separate pleadings submitted by defense
      counsel in this case. I have reviewed all of
      them again as recently as yesterday and some
      of those factors this morning. The Court, after
      carefully considering and weighing all of the
      aggravating or mitigating factors presented in
      this case, and not limited to the personality
      traits discussed by Dr. Holler, past drug and
      alcohol use discussed about [sic] Dr. Shaw,
      Dr. Holler and the other witnesses who
      testified, and the child abuse which the Court
      finds is a fact, that none of those mitigating
      factors considered separately or cumulatively
      indicates to the Court that these factors
      affected the defendant’s ability to control his
      physical behavior at the time of the offense or
      to appreciate the wrongfulness of his conduct,
      that the defendant was aware at all times
      while these offenses were occurring that what
      he was doing was wrong, that he continued to
      participate in them and that he had the
                     HEDLUND V. RYAN                        73

       intelligence and the ability to refuse continued
       participation.

Sentencing Hr’g Tr. at 23–24, July 30, 1993 (emphasis
added). The sentencing court made explicit that it considered
and weighed Hedlund’s mitigating evidence insofar as that
evidence affected Hedlund’s capacity at the time of the crime.
The court evaluated Hedlund’s abusive childhood only to the
extent it may have “affected the defendant’s ability to control
his physical behavior at the time of the offense or to
appreciate the wrongfulness of his conduct.” Id. at 24. This
refusal to consider and give effect to significant mitigating
evidence that the court found credible because it was not tied
to his behavior in committing the crime is contrary to
Eddings. The sentencing court never indicated that its
analysis quoted above, clearly requiring a nexus between the
child abuse and the crime, went to the weight it was giving
the evidence, rather than its relevance.

    The majority’s conclusion that the Arizona Supreme
Court permissibly weighed the mitigating evidence of
Hedlund’s tormented childhood, and did not improperly apply
a causal nexus test, is contrary to the Arizona Supreme
Court’s plain reasoning. The majority supports its reading of
the record based on a single sentence from the Arizona
Supreme Court’s decision: “A difficult family background,
including childhood abuse, does not necessarily have
substantial mitigating weight absent a showing that it
significantly affected or impacted a defendant’s ability to
perceive, to comprehend, or to control his actions.”
McKinney, 917 P.2d at 1227. But the majority ignores the
legal authority that the court cited to support this rule. The
Arizona Supreme Court cited to a portion of its decision in
State v. Ross that states unambiguously, a “difficult family
74                   HEDLUND V. RYAN

background is not a relevant mitigating circumstance unless
a defendant can show that something in that background had
an effect or impact on his behavior that was beyond the
defendant’s control.” 886 P.2d 1354, 1363 (Ariz. 1994)
(internal quotation marks omitted). If he cannot show this,
“Defendant’s background therefore is not a mitigating
circumstance.” Id. The court in Ross did not say that family
background unconnected to criminal conduct is of “little or
no weight or value.” Cf. Towery, 673 F.3d at 945 (“[T]he
[Arizona] court’s reasoned and individualized decision to
give [defendant’s] evidence little or no weight was not
contrary to Supreme Court precedent.”) (emphasis in
original). Instead, Ross held, as a matter of law, that a
causally unrelated family background was not relevant. By
deeming the unconnected background evidence not relevant,
the Ross court applied the impermissible causal nexus test
that the U.S. Supreme Court has unequivocally rejected. See
Smith v. Texas, 543 U.S. 37, 45 (2004) (per curiam) (stating
that the causal nexus test is one “we never countenanced and
now have unequivocally rejected”); Tennard v. Dretke,
542 U.S. 274, 284–86 (2004) (explaining that the causal
nexus test “has no foundation in the decisions of this Court”).
In the same way it did in Ross, the Arizona Supreme Court
impermissibly refused to consider Hedlund’s childhood abuse
as a mitigating factor. Although the Arizona Supreme Court
cloaked this exclusion in the language of weighing and
sufficiency, it plainly and improperly applied a causal nexus
requirement.

    The majority avoids reaching this conclusion by requiring
Hedlund to meet a heightened standard of proof that is not the
law of our circuit. The majority stretches the language of
Schad v. Ryan, 671 F.3d 708 (9th Cir. 2009) (per curiam),
cert. denied, 133 S. Ct. 432 (2012), to invent a new legal test
                         HEDLUND V. RYAN                                75

which requires Hedlund to show a “clear indication” that the
Arizona courts applied an unconstitutional causal nexus test.5
Our use of the phrase “clear indication” in Schad, however,
was very different than the majority’s use here. In Schad, we
concluded that because there was “no indication” that the
state courts applied a causal nexus test, “either as a method of
assessing the weight of the mitigating evidence, or as an
unconstitutional screening mechanism,” we would not
presume constitutional error absent a “clear indication in the
record.” 671 F.3d at 724. Thus, we would not presume error
from silence. Here, in contrast, the record unquestionably
shows that the Arizona courts applied a causal nexus test.
The only question is whether they applied the
unconstitutional version of the causal nexus test. The “clear
indication” test from Schad—if it even is a test—helps courts
determine whether an Eddings violation exists when a record
contains no indication that any causal nexus test was used. It
was not intended as a tool for determining what variety of
causal nexus test a state court applied. Our controlling
precedent for determining that question is whether the state
court’s reasoning “appears to have” imposed the
impermissible test. Styers v. Schriro, 547 F.3d 1026, 1035
(9th Cir. 2008); see also Poyson, 743 F.3d at 1188 (Kozinski,
C.J., dissenting from the denial of rehearing en banc). To
conclude otherwise is to disavow controlling Supreme Court
authority, and blatantly break from our circuit’s precedent, as
the same majority did in McKinney v. Ryan, 730 F.3d at
919–21, vacated and reh’g en banc granted, 2014 WL


  5
    Dissenting in Poyson v. Ryan, Judge Thomas accused the majority
there of similarly distorting Schad’s “clear indication” language “to create
a new, more stringent test for determining whether a state court applied an
unconstitutional causal nexus analysis.” 743 F.3d at 1207 (Thomas, J.,
dissenting).
76                        HEDLUND V. RYAN

1013859 (9th Cir. March 12, 2014); see also Poyson, 743
F.3d at 1187–88 (Kozinski, C.J., joined by eleven other
judges, dissenting from the denial of rehearing en banc
because of a similar Eddings issue).

     Lastly, the Arizona Supreme Court did not remedy its
Eddings violation by reweighing the aggravating
circumstance of pecuniary gain against the aggregate
mitigating evidence. Because the Court had already
determined that evidence of Hedlund’s abusive childhood
was not a mitigating factor (because it was not causally
connected to his criminal conduct and, therefore in
accordance with Ross, not relevant), that evidence was not
considered in the “minimal mitigating evidence” that the
court reweighed against the aggravating circumstance of
pecuniary gain. McKinney, 917 P.2d at 1231. The Arizona
Supreme Court unconstitutionally applied the causal nexus
test to screen out Hedlund’s evidence of childhood abuse and
family background.6


 6
   Whether Hedlund must also show actual prejudice for the writ to issue
is an unsettled question in the Ninth Circuit. Compare Stokley v. Ryan,
705 F.3d 401, 404 (9th Cir. 2012) (applying harmless error review to the
Arizona Supreme Court’s alleged Eddings violation), and Landrigan v.
Stewart, 272 F.3d 1221, 1230 & n.9 (9th Cir. 2001) (applying harmless
error review to the state court’s failure to consider the defendant’s alleged
intoxication and past history of drug use as a nonstatutory mitigating
factor), adopted by Landrigan v. Schriro, 501 F.3d 1147 (9th Cir. 2007)
(en banc) (order), with Williams v. Ryan, 623 F.3d 1258, 1270–72 (9th Cir.
2010) (granting habeas relief for an Eddings violation without conducting
harmless error analysis), and Styers, 547 F.3d at 1035–36 (same). The
issue is also the subject of a split among other circuits. Compare Bryson
v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999) (collecting cases from
multiple circuits applying harmless error review), with Nelson v.
Quarterman, 472 F.3d 287, 314–15 (5th Cir. 2006) (en banc) (declining
to apply harmless error review).
                     HEDLUND V. RYAN                       77

                             III.

    During sentencing, defense counsel presented expert
testimony describing Hedlund’s alcoholism and the
psychological effects of his abusive childhood. In particular,
Dr. Holler testified that Hedlund suffered from post-traumatic
stress disorder (PTSD), alcohol dependence, and depression.
Dr. Holler also testified that because Hedlund was constantly
seeking acceptance, he was susceptible to engaging in
criminal activity to demonstrate loyalty to his family.
However, Judge Sheldon did not find the evidence presented
by Dr. Holler and Dr. Shaw, Hedlund’s other expert witness,
credible. Dr. Holler’s evidence was not credited because:
(1) he did not raise PTSD in his initial report, instead
announcing it for the first time while testifying; (2) some of
the information was self-reported by Hedlund; and (3) some
of the conclusions were based on an erroneous presentence
report. Dr. Shaw’s evidence was not credited because his
information came from Hedlund, who had a motive to lie
about the extent of his alcohol consumption, and his
statements conflicted with those of Hedlund’s sisters as well
as a presentence report from an earlier conviction.

    Hedlund claimed before the state PCR court that his trial
counsel’s assistance was constitutionally deficient during the
penalty phase because counsel failed to present competent
expert testimony that Hedlund suffered from brain damage
that affected his behavior at the time of the offenses.
Hedlund offered a report from Dr. Walter, a
neuropsychologist, and requested a hearing at which Dr.
Walter could testify. The PCR court denied Hedlund’s
request for an evidentiary hearing, concluding that the
opinions of Hedlund’s sentencing phase experts were
“substantially similar to those of Dr. Walter’s” and that “it
78                   HEDLUND V. RYAN

was adequately informed of this information through Dr.
Holler and Dr. Shaw’s opinions.” State v. Hedlund, No. CR
1991-090926, Minute Entry at 6 (Ariz. Super. Ct. June 1,
2001).

    The majority incorrectly frames the issue as whether the
state PCR court’s finding that the evidence was “substantially
similar” is an unreasonable determination of fact. If the
sentencing court had credited the evidence, but found it
insufficiently mitigating, this would be the correct inquiry.
However, here, the sentencing court wholly discredited the
expert mental health evidence because the sources underlying
each item were questionable. Because Hedlund’s counsel had
presented unreliable expert testimony, it was as if he had
presented none at all. Thus, the only relevant inquiry for the
state PCR court was whether Dr. Walter’s report was also so
unreliable that it (or a similar report procured by competent
counsel) would have been rejected by the sentencing court.
The state PCR court did not engage in this analysis.

     “An unreasonable application of Supreme Court
precedent occurs when a ‘state-court decision . . . correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.’” Libberton v.
Ryan, 583 F.3d 1147, 1161 (9th Cir. 2009) (quoting Williams
v. Taylor, 529 U.S. 362, 407–08 (2000)). Because the state
court unreasonably applied Strickland by failing to address
the claim of ineffective assistance of counsel presented, and
rejected Hedlund’s request to develop the record as to this
issue, Hedlund is entitled to an evidentiary hearing on this
claim. See Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012)
(ineffective assistance of counsel claims “often require
investigative work” and “often turn[] on evidence outside the
trial record”); see also Cullen v. Pinholster, 131 S. Ct. 1388,
                         HEDLUND V. RYAN                                79

1400–01 (2011) (citing Schriro v. Landrigan, 550 U.S. 465,
473 (2007), for the proposition that “district courts, under
AEDPA, generally retain the discretion to grant an
evidentiary hearing” and noting that “[s]ection 2254(e)(2)
continues to have force where § 2254(d)(1) does not bar
federal habeas relief”); Siripongs v. Calderon, 35 F.3d 1308,
1310 (9th Cir. 1994) (“In a capital case, a habeas petitioner
who asserts a colorable claim to relief, and who has never
been given the opportunity to develop a factual record on that
claim, is entitled to an evidentiary hearing in federal court.”).

                                   IV.

                                    A.

    Before Hedlund’s trial began, his trial counsel and the
prosecutor were engaged in plea negotiations, which resulted
in two proposed plea agreements. The first plea agreement
would have allowed Hedlund to plead guilty to second-degree
murder for his involvement in the death of Mertens and to
theft with a prior for his involvement in the death of McClain.
This plea agreement was presented to and rejected by Judge
Sheldon on September 18, 1992. Judge Sheldon rejected the
agreement because he wanted the offenses to which Hedlund
would plead guilty to reflect greater accountability for the
McClain homicide.7 To give the parties an opportunity to
reach a second plea that addressed his concerns, Judge


  7
    Under Arizona law, the court “may, in its sole discretion, participate
in settlement discussions” by directing counsel to “participate in a good
faith discussion with the court” to reach a resolution that “conforms to the
interests of justice.” Ariz. R. Crim. P. 17.4. By contrast, Federal Rule of
Criminal Procedure 11(c)(1) expressly mandates that the district court
“must not participate” in plea agreement discussions.
80                   HEDLUND V. RYAN

Sheldon granted a two-week continuance. The week before
the trial was scheduled to begin, the parties were in the final
stages of a second plea agreement that addressed Judge
Sheldon’s concerns. Under the second proposed plea
agreement, Hedlund would have pled guilty to the second-
degree murder of Mertens, and to two felonies—theft and
burglary—in connection with McClain’s death. At this point
in the proceedings, Hedlund’s primary goal was to avoid the
death penalty, which the second plea agreement
accomplished.

    On Tuesday, October 6, 1992, a week before trial was to
begin, Hedlund’s counsel and the prosecutor called Judge
Sheldon to clarify what might be appropriate for the second
plea agreement. Judge Sheldon’s deadline for the parties to
appear to discuss the second plea agreement with the court
was two days later, on Thursday, October 8. The prosecutor
set a deadline for Hedlund to accept the second plea
agreement by Friday, October 9. But instead of presenting
this second plea agreement to Judge Sheldon or accepting the
prosecutor’s offer, Hedlund’s trial counsel called the court at
the end of the day on October 8 to ask Judge Sheldon to
recuse himself, because he believed that the judge was biased
against Hedlund. Judge Sheldon refused defense counsel’s
request, and the deadline to discuss the second plea
agreement expired without any further communication from
Hedlund’s counsel. The next day, Hedlund’s counsel filed a
motion to recuse Judge Sheldon, and the prosecutor’s second
plea offer expired. Another judge held a hearing on the
recusal motion four days later and denied the motion. Voir
dire for Hedlund’s trial began that same day.

    Hedlund claims that his trial counsel was ineffective in
the plea process. The last reasoned court decision addressing
                     HEDLUND V. RYAN                        81

this issue is the Arizona Superior Court’s denial of Hedlund’s
petition for post-conviction relief. The state PCR court’s
denial of Hedlund’s ineffective assistance during plea
negotiations claim was an unreasonable application of clearly
established federal law as determined by the Supreme Court.
See 28 U.S.C. § 2254(d)(1).

                              B.

    “[C]riminal justice today is for the most part a system of
pleas, not a system of trials. . . . [T]he right to adequate
assistance of counsel cannot be defined or enforced without
taking account of the central role plea bargaining plays in
securing convictions and determining sentences.” Lafler v.
Cooper, 132 S. Ct. 1376, 1388 (2012). “Ninety-seven percent
of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas.” Id. The majority
correctly identifies the two-part Strickland test applicable to
ineffective assistance claims in plea negotiations and properly
emphasizes that under AEDPA, review of the state court’s
application of Strickland is “doubly deferential.” See also
Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Where the
majority fails, however, is in its examination of the state PCR
court’s actual reasons for rejecting Hedlund’s claim.

    After describing Arizona’s version of Strickland, the state
PCR court rejected Hedlund’s ineffective assistance claim in
four sentences. It said:

       Counsel claimed that Defendant’s trial
       attorney was ineffective in handling his plea
       negotiations. A hearing was conducted on
       this matter in the trial court and Defendant’s
       attorney properly, aggressively and
82                   HEDLUND V. RYAN

       professionally pursued the issue. There was
       no ineffective assistance of counsel in the
       court’s rejection of the plea offer presented to
       it. As the Court noted to counsel below, any
       plea which had lacked accountability for the
       McClain homicide would have been rejected
       by the Court.

State v. Hedlund, No. CR 1991-090926, Minute Entry at 3–4
(Ariz. Super. Ct. June 1, 2001) (emphasis added). This ruling
is an unreasonable application of clearly established Supreme
Court precedent.

    Contrary to the state PCR court’s statement, a hearing was
not conducted by the trial court on either the issue of
ineffective assistance of counsel or the plea negotiations and
second plea agreement. There was, however, a hearing on the
motions for recusal and for change of judge. By incorrectly
stating that the hearing regarding the motion to recuse Judge
Sheldon was a hearing on the ineffective assistance claim, the
state PCR court applied the correct law to the wrong facts.
Based on the recusal hearing, the state PCR court concluded
that defense counsel “properly, aggressively and
professionally pursued the issue.” But defense counsel’s
efforts to transfer Hedlund’s case to another judge were
irrelevant to evaluating whether counsel performed
deficiently by abandoning the second plea agreement.

    Also, even if the state PCR court had applied Strickland
to the correct facts, its conclusion that Hedlund’s trial
counsel’s performance was not constitutionally deficient was
unreasonable. To prove ineffective assistance during the plea
phase of a prosecution, Hedlund “must demonstrate gross
error on the part of counsel.” Turner v. Calderon, 281 F.3d
                     HEDLUND V. RYAN                        83

851, 880 (2002) (quoting McMann v. Richardson, 397 U.S.
759, 772 (1970)). Hedlund’s trial counsel committed gross
error when he allowed the second offer of a plea agreement,
which would have saved Hedlund from the death penalty, to
expire even though Hedlund had told him he was willing to
accept the plea. The majority’s cursory dismissal of this issue
and focus on trial counsel’s “tactical” decision to move for a
recusal are misguided.

     The majority, like the state PCR court, misreads the
record. The majority concludes that the record is unclear as
to whether a second plea offer was still on the table on
Thursday, October 8—the date that defense counsel first
asked Judge Sheldon to recuse himself and allowed the
court’s plea deadline to expire. Because of this purported
lack of clarity, the majority dismisses Hedlund’s contention
that the second plea offer was still available and that his
counsel’s decision to let the second plea offer expire and
expose Hedlund to the death penalty was ineffective
assistance. The record does reflect that on Tuesday, October
13, when the parties were arguing defense counsel’s motion
to recuse, the prosecutor said, “There is no plea offer to Mr.
Hedlund as of today. . . . We were talking Tuesday afternoon
[October 6] and [defense counsel] advised me that Mr.
Hedlund turned down the latest offer which is in his pleading
today. I said, fine. If we don’t plead something by Friday,
that is it.” Evidentiary Hr’g Tr. at 56–57, Oct. 13, 1992. But
it is wrong to conclude from this statement alone that the
second plea agreement had been unconditionally rejected by
the time defense counsel moved to recuse Judge Sheldon.

   When he moved to recuse Judge Sheldon, defense counsel
had a plea offer in hand that would have saved Hedlund from
84                       HEDLUND V. RYAN

the death penalty.8 The record, however, is ambiguous as to
whether the “latest offer” the prosecutor referred to during the
recusal hearing was the second plea offer or a different offer.
At other times during the hearing, the prosecutor, Judge
Sheldon, and Judge Sheldon’s assistant each said that they
believed the parties were going to come in on Thursday,
October 8 to discuss the latest plea agreement with the judge.
Thus, it is unlikely that the “latest plea” had been rejected on
Tuesday, October 6 if the parties, as of Wednesday, were
planning to meet with Judge Sheldon to discuss that very plea
proffer. Also, as of October 9, defense counsel stated in his
motion to recuse Judge Sheldon that “Hedlund and the State
have come to a [sic] agreement which is within the range
suggested by the court.” Lastly, on the same day that defense
counsel told the prosecutor that the “latest offer” had been
rejected, the parties phoned the court to clarify what would be
a more appropriate plea. The parties were supposed to come
in on Thursday, October 8 to further discuss the second plea
agreement with Judge Sheldon. Defense counsel’s failure to
accept the proposed second plea offer, or, at the very least,
meet with Judge Sheldon and the prosecutor to further discuss
the offer on October 9 as they had agreed, was deficient
performance. To conclude otherwise is an unreasonable
application of Strickland.

    The test for deficient performance is “whether counsel’s
assistance was reasonable considering all the circumstances.”


  8
    The record is not ambiguous as to whether Hedlund had an offer in
hand when his attorney moved to recuse Judge Sheldon. While insisting
that the record is unclear, the majority accepts that defense counsel had an
offer in hand to justify its conclusion that defense counsel’s actions were
strategic. Therefore, there is no explanation, whether reasonable or not,
that supports defense counsel’s abandonment of plea negotiations.
                          HEDLUND V. RYAN                                85

Strickland, 466 U.S. at 688. Contrary to the majority’s
position, defense counsel’s tactical decision to move for
recusal does not excuse his abandonment of the second plea
offer negotiations.9 Defense counsel knew that Hedlund’s
primary goal in pleading guilty to lesser charges was to avoid
a capital sentence, yet when presented with a plea that would
have resulted in a sentence of a term of years, defense counsel
irresponsibly shifted all of his efforts to the recusal motion
and allowed the second plea offer to expire. The majority
portrays the decision to abandon the plea negotiations and
pursue the recusal motion as one strategic choice subject to
the doubly-deferential standard under Strickland and
AEDPA. But the majority provides no reason as to why it
was strategic for Hedlund’s counsel to drop one and pursue
the other, rather than pursue both concurrently. The record
contains no articulable reason as to why abandoning the plea
negotiations, after Hedlund told counsel he was willing to
accept the latest offer, was strategic.

   The majority’s explanation is unconvincing. If defense
counsel strategically ended plea negotiations in Judge
Sheldon’s court, why did he cease all negotiations with Judge
Sheldon and the prosecutor, thus allowing the offer—which
according to the majority he sought to preserve—to expire?


   9
     While counsel’s motion to have Hedlund’s case moved before a
different judge was a tactical decision, his failure to timely respond to the
prosecutor’s second plea offer was not. Counsel’s decision to bring a
recusal motion is not at issue here. Thus, the majority’s thorough analysis
of why counsel’s decision to move for recusal was within the “wide range
of reasonable professional assistance” is off point. Strickland, 466 U.S.
at 689. The relevant inquiry, instead, is whether defense counsel’s
abandonment of ongoing plea negotiations with the prosecutor and the
judge, when a second plea agreement was nearly complete, constituted
deficient performance.
86                   HEDLUND V. RYAN

The only explanation is error, amounting to deficient
performance. Defense counsel’s failure to attend the plea
discussions with the prosecutor scheduled before Judge
Sheldon suggests that negligence, rather than strategy, was at
play. Defense counsel’s failures were especially egregious
because trial was to begin only a few days later and the
chances of another plea offer were slim to nil.

    “During all critical stages of a prosecution, which must
include the plea bargaining process, it is counsel’s ‘dut[y] to
consult with the defendant on important decisions and to keep
the defendant informed of important developments in the
course of the prosecution.’” Nunes v. Mueller, 350 F.3d
1045, 1053 (9th Cir. 2003) (quoting Strickland, 466 U.S. at
688). It is unknown if Hedlund knew that defense counsel
had abandoned the plea bargaining process in favor of trying
to recuse Judge Sheldon. By abandoning plea negotiations
merely as a consequence of pursuing the recusal motion, and
not as the result of an informed and separate decision, defense
counsel failed to provide constitutionally effective counsel to
Hedlund.

    The state PCR court’s conclusion that Hedlund did not
suffer prejudice because “any plea which had lacked
accountability for the McClain homicide would have been
rejected by the Court,” was also an unreasonable application
                         HEDLUND V. RYAN                              87

of established Supreme Court precedent.10 To succeed on his
ineffective assistance claim, Hedlund must also show that:

         but for the ineffective advice of counsel there
         is a reasonable probability that the plea offer
         would have been presented to the court (i.e.,
         that the defendant would have accepted the
         plea and the prosecution would not have
         withdrawn it in light of intervening
         circumstances), that the court would have
         accepted its terms, and that the conviction or
         sentence, or both, under the offer’s terms
         would have been less severe than under the
         judgment and sentence that in fact were
         imposed.

Lafler, 132 S. Ct. at 1385. “[I]t is necessary to show a
reasonable probability that the end result of the criminal
process would have been more favorable by reason of a plea
to a lesser charge or a sentence of less prison time.” Missouri
v. Frye, 132 S. Ct. 1399, 1409 (2012). “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. If the second
plea offer had been accepted, Hedlund would have been
sentenced to a term of years and avoided the death penalty.
The majority’s explanation to support its view that Judge

  10
      The state PCR court’s decision was also contrary to Arizona law
because “a petitioner is not required to prove that the trial court would
have accepted the plea agreement in order to establish prejudice resulting
from counsel’s deficient advice.” State v. Donald, 10 P.3d 1193, 1202
(Ariz. Ct. App. 2000) (holding that “such a requirement ‘presents inherent
problems of proof,’ and that it would be ‘unfair and unwise to require
litigants to speculate as to how a particular judge would have acted under
particular circumstances’”) (citations omitted).
88                       HEDLUND V. RYAN

Sheldon would not have accepted the second plea agreement
is flawed.11

    First, the majority concludes that it is doubtful whether
Judge Sheldon would have found that the second plea
agreement “provided sufficient accountability for the
McClain homicide.” But the excerpts from the hearing on
defense counsel’s motion to recuse that the majority cites do
not support this conclusion. Instead, they demonstrate Judge
Sheldon’s concern regarding a second-degree murder charge
under the felony murder rule. In the first plea offer, Hedlund
would plead to second-degree murder for the homicide of
Mertens, not McClain. Judge Sheldon’s concern with the
second-degree murder plea was not related to Hedlund’s
culpability in the McClain homicide. Instead, he was
concerned with the legal feasibility of Hedlund pleading
guilty to second-degree murder under Arizona’s felony
murder rule. See Ariz. Rev. Stat. § 13-1105(A)(2). Judge
Sheldon was “very surprised” by the first plea agreement
because he had doubts that the parties would be able “to
establish a factual basis for Second Degree Murder to a
Felony Murder charge . . . [considering that] there are no


  11
     The majority also relies on arguments not found in the state PCR
court’s decision to conclude that counsel’s performance was not deficient.
Although we are required to evaluate all reasonable arguments that a state
court could have relied upon when assessing a state high court’s summary
denial of original habeas petitions, see Richter, 131 S. Ct. at 784, we
should not evaluate such hypothetical arguments when assessing a state
court’s denial of a habeas petition that actually relied on a lower court’s
reasoning. Instead, we “must ‘look through’ that judgment to the last
reasoned state-court decision on the merits.” Cannedy v. Adams, 706 F.3d
1148, 1157 (9th Cir. 2013). Thus, we should look only to the state PCR
court’s actual reasoning to determine whether it was an unreasonable
application of clearly established Supreme Court case law.
                     HEDLUND V. RYAN                         89

lesser included offenses to Felony Murder.” Evidentiary Hr’g
Tr. at 37–38, Oct. 13, 1992. If the second plea agreement had
been presented to the court, however, there is a reasonable
probability that Judge Sheldon would have accepted it even
with the second-degree murder charge for the Mertens
homicide. In fact, Judge Sheldon sentenced Hedlund based,
in part, on a second-degree murder conviction under Arizona
law. Thus, because the facts permitted the jury to convict
Hedlund of second-degree murder, Judge Sheldon’s concern
over the legal feasibility of the felony murder rule would not
have barred his approval of the second plea agreement.

    Second, the record shows that any accountability concerns
that Judge Sheldon had regarding Hedlund’s culpability in the
McClain homicide would have been likely addressed with the
addition of the burglary charge in the second plea offer.
Although Judge Sheldon had “not made up [his] own mind,”
at the time of the recusal hearing as to whether burglary
would be sufficient to address his culpability concerns, he did
“believe[] at the very least, what [counsel] should be looking
at would be Burglary in the First Degree which would be
entry in the home armed with a weapon either as a dangerous
offense or non-dangerous.” Id. at 32. While both sides can
speculate about whether the burglary charge would have
definitively satisfied Judge Sheldon’s accountability
concerns, the record contains enough evidence to raise doubt,
and undermine confidence, as to whether Hedlund would
have received a capital sentence if defense counsel had
presented the second plea agreement to the court.

    Third, the majority’s conclusion that Judge Sheldon’s due
process concerns would have doomed the second plea
agreement is incorrect. Judge Sheldon’s concern regarding
disparate sentences was a reason that he rejected the first plea
90                    HEDLUND V. RYAN

agreement, not a reason that he may have rejected the second
plea agreement. Unlike the first plea agreement, the second
plea agreement included a first-degree burglary charge which,
according to petitioner’s counsel at oral argument, would
have exposed Hedlund to approximately fourteen more years
of prison time than the first plea agreement. Also, disparate
sentences between McKinney and Hedlund were appropriate
as their culpability, in at least the Mertens homicide, differed.
In fact, the jury convicted McKinney of first-degree murder,
and Hedlund of second-degree murder, for the Mertens
homicide.

    As to Hedlund’s willingness to accept the second plea
offer, there is no evidence in the record that Hedlund himself
did not want to enter a plea in front of Judge Sheldon. The
only evidence of Hedlund’s input into defense counsel’s
decision to abandon the second plea offer and pursue the
motion to recuse is that Hedlund “fe[lt] that [the] court ha[d]
become biased against him.” But Hedlund’s feelings about
Judge Sheldon were insufficient to justify defense counsel’s
decision to abandon the plea negotiations altogether and
instead move for recusal.

    Finally, the ultimate question is whether there is a
“reasonable probability” that Hedlund would have been
spared the death penalty had defense counsel presented the
second plea agreement to Judge Sheldon. See Strickland,
466 U.S. at 694. Speculating about whether Judge Sheldon
would have accepted the second plea agreement is an
intermediate step. And in truth, speculating about whether
Judge Sheldon would have accepted the second plea
agreement is just that: speculation. At the time of the recusal
hearing, even Judge Sheldon admitted that he “had not made
up [his] own mind whether or not that [the burglary charge]
                     HEDLUND V. RYAN                        91

would be an appropriate disposition.” Evidentiary Hr’g Tr.
at 32, Oct. 13, 1992. What is known is that Judge Sheldon
was not committed to sentencing Hedlund to death, and was
open to the State pursuing a term of years instead of a death
sentence. When presented with the first plea agreement, he
“was very surprised there had not been a plea to First Degree
Murder with the State stipulating it would not seek the death
penalty.” Id. at 37. Thus, there is a reasonable probability
that if Judge Sheldon had been presented with a plea
agreement that satisfied his other concerns and did not
include the possibility of a capital sentence, he would have
accepted it.

                              V.

    The last reasoned state court decision on Hedlund’s
shackling claim is the Arizona Supreme Court’s decision on
direct appeal. See McKinney, 917 P.2d at 1223. Because that
decision is both “contrary to . . . clearly established Federal
law,” 28 U.S.C. § 2254(d)(1), and “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. at § 2254(d)(2), we “must
then resolve the claim without the deference AEDPA
otherwise requires,” Panetti v. Quarterman, 551 U.S. 930,
953 (2007); accord Frantz v. Hazey, 533 F.3d 724, 735–37
(9th Cir. 2008) (en banc).

                              A.

    The trial court decided to shackle Hedlund before it even
heard testimony about a possible flight risk. Then, to “put
[the] matter on the record,” the trial court heard testimony
from Deputy Sheriff Jack Roger Lane, who said that an
inmate told a subordinate officer that he had overheard James
92                   HEDLUND V. RYAN

McKinney and another prisoner who was charged with
murder discussing an escape plan. The inmate could not
identify McKinney’s co-plotter. Deputy Sheriff Lane
testified that Hedlund’s jail card contained a narrative about
the escape plan, which read, “Warning, take keys and
clothing per class A1920. McKinney planning escape by
jumping guard per information, 300120, Per request CPD
2525.” Deputy Sheriff Lane had asked that the information
about McKinney’s escape attempt be placed on Hedlund’s jail
card. This is the only record evidence that Hedlund was an
escape risk.

    Under AEDPA, a challenge to a state court’s factual
determination may be based on “the claim that the finding is
unsupported by sufficient evidence, that the process
employed by the state court is defective, or that no finding
was made by the state court at all.” Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004) (citations omitted). “[W]e
must more than merely doubt whether the process operated
properly. Rather, we must be satisfied that any appellate
court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding
process was adequate.” Id. at 1000. While this “is a daunting
standard . . . [it] is not impossible to meet.” Id.

    The Arizona Supreme Court rejected Hedlund’s shackling
claim because “the trial judge specifically made a record to
document his security concerns: Hedlund attempted an escape
during the summer of 1991 and also made plans with another
capital defendant to escape by attacking a guard and taking
his uniform and gun.” McKinney, 917 P.2d at 1223. But it
was McKinney, not Hedlund, who attempted to escape in
1991. And it was McKinney, not Hedlund, who had been
overheard making an escape plan in 1992. Therefore, the
                     HEDLUND V. RYAN                       93

Arizona Supreme Court’s factual determination as to Hedlund
was not only incorrect, it was an unreasonable determination
given that the only fact possibly supporting the notion that
Hedlund was a security risk was the jailhouse informant’s
hearsay statement that McKinney was planning to escape
with another capital defendant. But none of the state’s
witnesses knew the identity of McKinney’s co-plotter. By
misattributing McKinney’s 1991 escape attempt to Hedlund,
the trial court unreasonably inferred that Hedlund’s past
attempt made it probable that he was planning another escape
with McKinney. Absent incorrectly believing that Hedlund
had tried to escape in 1991, the Arizona Supreme Court gave
no indication that it would have reached the same result, and
thus the finding that Hedlund was a security risk was
“unsupported by sufficient evidence,” Taylor, 366 F.3d at
999.

     Moreover, the Arizona Supreme Court did not just err as
to the 1991 escape attempt. When discussing the 1992 escape
plan, it again erroneously attributed evidence against
McKinney to Hedlund. It said that the trial judge’s
assessment of Hedlund’s security threat was supported
because Hedlund had made plans with another capital
defendant to escape. But the only evidence of an escape plan
was from Deputy Sheriff Lane, who said that McKinney,
known by name to the inmate who overheard the plot, made
escape plans with another defendant charged with murder,
whose name the inmate did not know. While the inference
that the other defendant was Hedlund may or may not be
permissible, the Arizona Supreme Court did not make that
inference. Instead, it erroneously attributed the exact record
evidence of McKinney’s flight risk to Hedlund, resulting in
an unreasonable determination of fact to support its
94                   HEDLUND V. RYAN

conclusion that the trial court had well-founded security
concerns as to Hedlund.

    The Arizona Supreme Court did not make a finding that
Hedlund was McKinney’s unnamed co-plotter. But even if
it had, that finding would also be an unreasonable
determination of fact. The only evidence that Hedlund was
involved in the 1992 plan is that he was charged with murder
(thus fitting the description of the inmate with whom
McKinney allegedly spoke) and had McKinney’s escape plan
denoted on his jail card. The majority places great weight on
the jail’s “security-based decision” to identify Hedlund as a
threat on his jail card. However, Deputy Sheriff Lane
testified that he asked that information about McKinney’s
1992 plot be placed on Hedlund’s jail card. Thus, the jail
card reflected nothing more than Deputy Sheriff Lane’s
opinion that McKinney’s co-plotter was likely Hedlund. But
Deputy Sheriff Lane’s testimony demonstrates that the only
basis for his opinion was the third-hand information that
McKinney had plotted with another defendant charged with
murder. Deputy Sheriff Lane’s “opinion,” then, was nothing
more than a hunch. And hunches should not justify the use of
highly prejudicial restraints during trial. Cf. Gonzalez v.
Pliler, 341 F.3d 897, 902 (9th Cir. 2003) (“[W]hen the
imposition of restraints is to be based upon conduct of the
defendant that occurred outside the presence of the court,
sufficient evidence of that conduct must be presented on the
record so that the court may make its own determination of
the nature and seriousness of the conduct and whether there
is a manifest need for such restraints; the court may not
simply rely upon the judgment of law enforcement or court
security officers or the unsubstantiated comments of others.”)
(quoting People v. Mar, 52 P.3d 95, 107 (Cal. 2002)).
Without the misattributed 1991 escape attempt and 1992
                      HEDLUND V. RYAN                           95

escape plot, the trial court’s only basis for shackling Hedlund
in view of the jury was Deputy Sheriff Lane’s speculation
that Hedlund was McKinney’s co-plotter, which itself was
based on an inmate’s recollection of what he overheard.

   In the absence of any individualized evidence tying
Hedlund to McKinney’s 1992 escape plot, the Arizona
Supreme Court’s factual determination that Hedlund was
involved in the 1992 plot was unreasonable.

                                B.

      It was clearly established by 1996, when the Arizona
Supreme Court issued its decision rejecting Hedlund’s
shackling claim, that shackling a criminal defendant during
his jury trial is “the sort of inherently prejudicial practice that
. . . should be permitted only where justified by an essential
state interest specific to each trial.” Holbrook v. Flynn,
475 U.S. 560, 568–69 (1986). Indeed, “no person should be
tried while shackled and gagged except as a last resort.”
Illinois v. Allen, 397 U.S. 337, 344 (1970) (emphasis added);
see Wilson v. McCarthy, 770 F.2d 1482, 1484–85 (9th Cir.
1985) (“Shackling may be justified as a last resort, in cases of
extreme need, or in cases urgently demanding that action.”)
(citations and internal quotation marks omitted). The Arizona
Supreme Court’s rejection of Hedlund’s shackling claim was
an unreasonable application of clearly established Supreme
Court case law in two ways.

    First, even if we assume that the trial court had an
“essential state interest” in courtroom security, Holbrook,
475 U.S. at 569, shackling Hedlund in view of the jury was
not possibly “the fairest and most reasonable way,” Allen,
397 U.S. at 344, to alleviate that concern. Although the trial
96                        HEDLUND V. RYAN

judge replaced the original table, behind which Hedlund and
McKinney sat shackled, with a table that covered a greater
portion of their legs, he unreasonably refused defense
counsel’s request that a curtain or other barrier be placed
around the table so that the jury could not see the shackles.
As a result, the jury saw Hedlund shackled and the trial court
failed in its duty to “carefully guard against dilution of the
principle that guilt is to be established by probative evidence
and beyond a reasonable doubt.” Estelle v. Williams,
425 U.S. 501, 503 (1976).12

    Second, it was an unreasonable application of clearly
established federal law to conclude that the trial court had
sufficient individualized evidence to support shackling
Hedlund. Because the Arizona Supreme Court’s legal
analysis of this claim was dependent on an antecedent
unreasonable factual determination, we “must then resolve
the claim without the deference AEDPA otherwise requires.”
Panetti, 551 U.S. at 953. Thus, the Arizona Supreme Court’s
decision is an unreasonable application of clearly established
Supreme Court case law if, after correcting the unreasonable
factual determinations, Hedlund’s shackling was
constitutionally impermissible. Without misattributing
McKinney’s 1991 escape attempt and Deputy Sheriff Lane’s
testimony describing McKinney’s 1992 escape plot to
Hedlund, the only individualized analysis supporting “the
judge’s well-founded security concerns” is Deputy Sheriff
Lane’s speculation that Hedlund was McKinney’s co-plotter


 12
    The majority insinuates that it was Hedlund’s fault that the jurors saw
the shackles. But Hedlund’s constitutional right to a fair trial rests in the
Fourteenth Amendment, which the courts, not Hedlund, are required to
protect. Estelle, 425 U.S. at 503. Therefore, Hedlund’s efforts, or alleged
lack thereof, to keep his restraints concealed are irrelevant.
                         HEDLUND V. RYAN                               97

in the 1992 escape plan. If the safeguards embodied in Allen,
Estelle, and Holbrook mean anything, they must require more
than a single security officer’s hunch to justify the highly
prejudicial act of shackling a criminal defendant in view of
the jury charged with determining his guilt.

    Even if it was not unreasonable for the trial court to infer
that Hedlund was McKinney’s co-plotter, it was an
unreasonable application of Supreme Court precedent to
shackle Hedlund in view of the jury solely because another
inmate may have overheard Hedlund discussing the
possibility of escape. To support its conclusion that the trial
court was justified in shackling Hedlund, the majority cites
Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir. 1989), and
Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010). But these
cases actually support Hedlund’s position. In Hamilton, we
did not address whether “the threat of violence or disturbance
was serious enough to justify the shackling of Hamilton
throughout his lengthy trial.” 882 F.2d at 1473. However,
we did emphasize that “[s]hackling is proper where there is
a serious threat of escape or danger.”13 Id. at 1471 (emphasis
added). In quoting the same language, the majority ignores


 13
    The two decisions that we relied on in Hamilton involved much graver
threats of violence and escape. See Loux v. United States, 389 F.2d 911,
919 (9th Cir. 1968) (holding that shackling defendants is permissible
where one of the defendants had twice successfully escaped from prison
and lost an arm in an unsuccessful attempt, another had escaped from
prison five times, and the third defendant had escaped from prison three
times and was then serving a sentence for second-degree murder); see also
Stewart v. Corbin, 850 F.2d 492, 497–98 (9th Cir. 1988) (holding that
shackling defendant is permissible where defendant had a prior felony
conviction for escape while in police custody, had an outstanding arrest
warrant for another escape in custody, had physically assaulted officers in
the courtroom, and had threatened a judge and an attorney).
98                    HEDLUND V. RYAN

the directive that the threat of escape or danger must be
“serious” and fails to analyze this with respect to Hedlund.
In Crittenden, shackling the defendant during trial was
justified because the defendant had already once escaped
from jail, kidnapping a man and commandeering his truck in
the process, and twice attempted to escape, assaulting a
prison guard during one of the attempts. 624 F.3d at 948.
Furthermore, even with this “state interest specific to
Crittenden’s trial,” the trial court in that case allowed
shackles and handcuffs only outside the presence of the jury.
Id. at 971. Thus, not only was the state’s interest in
preventing Crittenden’s escape buttressed by much stronger
evidence than that in Hedlund’s case, but the means used to
protect that interest were much less likely to infringe
Crittenden’s constitutional right to a fair trial.

      Here, by forcing Hedlund to wear visible leg braces
during his trial, the trial judge jeopardized the “principle that
there is a presumption of innocence in favor of the accused
. . . axiomatic and elementary, and [whose] enforcement lies
at the foundation of the administration of our criminal law.”
Coffin v. United States, 156 U.S. 432, 453 (1895); see Spain
v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). And he
threatened Hedlund’s most fundamental right solely because
Deputy Sheriff Lane had a hunch that Hedlund was the
unidentified co-plotter in McKinney’s escape plan. In other
words, the trial judge decided that one security officer’s
suspicion of Hedlund’s involvement in McKinney’s escape
plot, based wholly on a conversation that was relayed to that
security officer via another inmate and a subordinate officer,
was sufficient to extinguish Hedlund’s right to a fair trial.
This was an egregious constitutional error that more than
satisfies AEDPA’s stringent demands.
                     HEDLUND V. RYAN                         99

                              C.

     Even if Hedlund was unconstitutionally restrained, the
violation must have had a “substantial and injurious effect or
influence” on the verdict to warrant habeas relief. Brecht,
507 U.S. at 623 (internal quotation marks omitted). We
evaluate the effect keeping in mind that “in cases of grave
doubt as to harmlessness the petitioner must win.” O’Neal v.
McAninch, 513 U.S. 432, 437 (1995). “To determine whether
the imposition of physical restraints constitutes prejudicial
error, we have considered the appearance and visibility of the
restraining device, the nature of the crime with which the
defendant was charged and the strength of the state’s
evidence against the defendant.” Larson v. Palmateer,
515 F.3d 1057, 1064 (9th Cir. 2008). Fundamentally, we ask
“whether what [the jurors] saw was so inherently prejudicial
as to pose an unacceptable threat to defendant’s right to a fair
trial.” Holbrook, 475 U.S. at 572.

    Hedlund was prejudiced when he was shackled in view of
the jury. Here, as in Rhoden v. Rowland, 172 F.3d 633 (9th
Cir. 1999), “the unjustified shackles were not obtrusive, but
were visible and actually seen by some of the jurors,”
supporting a finding of prejudice. Id. at 637. In Dyas v.
Poole, 317 F.3d 934 (9th Cir. 2003) (per curiam), we noted
that “shackling during trial carries a high risk of prejudice
because it indicates that the court believes there is a ‘need to
separate the defendant from the community at large, creating
an inherent danger that a jury may form the impression that
the defendant is dangerous or untrustworthy.’” Id. at 937
(quoting Rhoden, 172 F.3d at 636). Prejudice was
“particularly likely” in Dyas because at least one juror saw
the petitioner’s leg restraints, which were unobtrusive enough
that the trial judge had thought they would not have been very
100                  HEDLUND V. RYAN

visible to jurors. Id. at 936–37. Here, Hedlund’s restraints
were visible to jurors throughout the trial. And even though
the trial judge allowed Hedlund to sit in front of a table that
partially covered his legs, the restraints were still visible.
Their visibility supports a finding of prejudice. See
Holbrook, 475 U.S. at 568–69; Dyas, 317 F.3d at 937;
Rhoden, 172 F.3d at 637.

    The nature of the criminal charges filed against Hedlund
also suggests prejudicial error. When “the defendant is
charged with a violent crime . . . shackling essentially brands
him as having a violent nature.” Larson, 515 F.3d at 1064
(internal alterations and quotation marks omitted). Hedlund
was charged with the murders of Mertens and McClain, both
violent crimes. Thus, shackling Hedlund was especially
prejudicial because it risked causing the jury to infer that
Hedlund was a dangerous man with a propensity to act
violently.

    Lastly, because the state’s evidence against Hedlund was
not overwhelming, the risk that shackling Hedlund prejudiced
the jury is real. In Rhoden:

       the basic issue at his trial concerned whether
       there was consent or whether Rhoden used
       force or fear to overcome his accuser’s will.
       The evidence on this issue was disputed and
       the jurors deliberated for over nine hours over
       three days, which suggests that they did not
       find the case to be clear-cut.

172 F.3d at 637. Evidence of Hedlund’s involvement in the
crimes may be “overwhelming.” Cox v. Ayers, 613 F.3d 883,
891 (9th Cir. 2010) (quoting Dyas, 317 F.3d at 937).
                     HEDLUND V. RYAN                       101

However, as in Rhoden, one of the critical issues at trial,
Hedlund’s mental state, was hotly disputed. Hedlund’s
defense theory was that McKinney was the mastermind and
that Hedlund was a reluctant participant. While the jury
ultimately convicted Hedlund of the first-degree murder of
McClain and the second-degree murder of Mertens, the
evidence supporting Hedlund’s first-degree murder
conviction was not overwhelming. Because the jury
convicted McKinney of first-degree murder for the deaths of
both Mertens and McClain, it is reasonable to conclude that
the jury found McKinney more culpable than Hedlund. Thus,
on the crucial issue of whether Hedlund’s culpability
warranted a first-degree murder conviction, which triggered
a possible death sentence, visibly shackling him prejudiced
the jury against him.

     Because the restraints were visible, because this case
involves violent crimes, and because the evidence of
Hedlund’s mental state was disputed and not overwhelming
on the critical issue that would trigger a death sentence, the
trial court’s error substantially influenced the jury’s verdict
and warrants habeas relief. See Rhoden, 172 F.3d at 637.

                           * * *

    “Because sentences of death are qualitatively different
from prison sentences,” the U.S. Supreme Court has gone to
“extraordinary measures to ensure that the prisoner sentenced
to be executed is afforded process that will guarantee, as
much as is humanly possible, that the sentence was not
imposed out of whim, passion, prejudice, or mistake.”
Eddings, 455 U.S. at 117–18 (O’Connor, J., concurring)
(citations and internal quotation marks omitted). The process
used to try, convict, and sentence Hedlund to death was
102                 HEDLUND V. RYAN

unconstitutional because it increased, rather than decreased,
the chances that Hedlund was sentenced to death out of
“whim, passion, prejudice, or mistake.” Id. The Arizona
courts unreasonably concluded otherwise. Even under the
Supreme Court’s restrictive interpretation of AEDPA
provisions, such constitutional violations entitle Hedlund to
habeas relief.
