                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,                          ORDER AND
          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 March 4, 2016

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

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

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel withdrew an opinion filed April 24, 2014, and
filed a superseding opinion reversing in part and affirming in
part the district court’s denial of a habeas corpus petition and
remanding with instructions to grant the petition with respect
to the petitioner’s death sentence.

    The panel held that the district court properly denied
relief on the petitioner’s claims regarding (1) the use of a
visible leg brace as a security measure during trial; (2) the use
of dual juries for the petitioner and his co-defendant; (3) juror
bias; (4) ineffective assistance of counsel during the plea
process; and (5) ineffective assistance of counsel during the
penalty phase.

    Applying McKinney v. Ryan, No. 09-99018, 2015 WL
9466506 (9th Cir. Dec. 29, 2015) (en banc), the panel held
that the Arizona Supreme Court’s application of a “causal
nexus” test – whereby not 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
– was contrary to clearly established federal law, and that the
error was not harmless.

   Judge Bea concurred in the majority opinion in full
because the panel is bound to follow McKinney, whose
analysis of the Eddings issue he believes conflicts with

  *
    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

Supreme Court precedent requiring this court to presume that
state courts know and follow the law.

    Concurring in part and dissenting in part, Judge Wardlaw
disagreed with the majority’s disposition of the petitioner’s
claims of unconstitutional shackling during trial and
ineffective assistance of counsel during the plea process and
penalty phase.


                        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.


                         ORDER

   The opinion filed April 24, 2014, and reported at 750 F.3d
793, is withdrawn. Because the court’s opinion is withdrawn,
Appellant’s petition for rehearing and petition for rehearing
en banc is moot. A superseding opinion will be filed
concurrently with this order. Further petitions for rehearing
and petitions for rehearing en banc may be filed.
4                        HEDLUND V. RYAN

                              OPINION

N.R. SMITH, Circuit Judge:

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

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




    1
    Judge Wardlaw dissents from Parts I, IV, and V of this disposition,
stating that she has “previously explained [her] disagreement with the
majority’s disposition of Hedlund’s claims of unconstitutional shackling
during trial and ineffective assistance of counsel during the plea process
and penalty phase.” Slip op. at 66 (Wardlaw, J., concurring in part and
dissenting in part) (citing Hedlund v. Ryan, 750 F.3d 793, 831–43 (9th Cir.
2014) (Wardlaw, J., concurring in part and dissenting in part)). In our
prior opinion, we responded to her disagreement. Hedlund, 750 F.3d at
811 n.15, 811–12, 813 n.16, 817, 820, 823 n.25. Similar to Judge
Wardlaw’s statement, we see no need to repeat our disagreement with her
prior dissent here.
                        HEDLUND V. RYAN                                5

   However, the Arizona Supreme Court applied a “causal
nexus” test, whereby not all mitigating evidence was
considered under Lockett v. Ohio, 438 U.S. 586 (1978),
Eddings v. Oklahoma, 455 U.S. 104 (1982), and their
progeny. See McKinney v. Ryan, No. 09-99018, 2015 WL
9466506 (9th Cir. Dec. 29, 2015) (en banc). Therefore, such
decision was contrary to clearly established federal law. See
28 U.S.C. § 2254(d). We must reverse the district court and
remand with instructions to grant the petition with respect to
Hedlund’s sentence.2

         FACTS AND PROCEDURAL HISTORY

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

         Beginning February 28, 1991, James Erin
         McKinney and Charles Michael Hedlund
         (Defendants) commenced a residential
         burglary spree for the purpose of obtaining
         cash or property. In the course of their
         extensive planning for these crimes,
         McKinney boasted that he would kill anyone


 2
   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).
6                HEDLUND V. RYAN

    who happened to be home during a burglary
    and Hedlund stated that anyone he found
    would be beaten in the head.

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

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

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

    A. The first murder

    The fourth burglary took place on March 9,
    1991. This time only McKinney and Hedlund
    were involved. Mertens was picked again
             HEDLUND V. RYAN                     7

because Defendants had been told by Lemon
and Morris, who knew Mertens’ son, that
Mertens kept several thousand dollars in an
orange juice container in her refrigerator.

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

B. The second murder

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

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

    Upon direct appeal, the Arizona Supreme Court affirmed
the conviction and sentence. McKinney, 917 P.2d at 1214. In
its opinion, the Arizona Supreme Court considered five
claims relevant to this appeal: (1) whether the use of dual
juries deprived Hedlund of his right to a fair trial, (2) whether
ordering Hedlund to wear a visible leg restraint during trial
deprived Hedlund of his right to a fair trial, (3) whether
Hedlund was denied his right to a fair and impartial jury
when the trial court refused to dismiss a juror distantly related
to one of the victims, (4) claims surrounding the negotiation
of a second plea deal, and (5) the consideration and weighing
of aggravating and mitigating factors.
                     HEDLUND V. RYAN                         9

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

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

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

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

                STANDARD OF REVIEW

     “We review de novo the district court’s decision to grant
or deny a petition for writ of habeas corpus.” Rhoades v.
Henry, 598 F.3d 495, 500 (9th Cir. 2010). Because Hedlund
initiated district court proceedings in 2002, the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) applies.
See Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). A
petitioner must overcome a high threshold to obtain relief
under AEDPA:

       Federal habeas relief may not be granted for
       claims subject to [28 U.S.C.] § 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, 562 U.S. 86, 100 (2011) (internal
quotation marks and citation omitted). “[T]he 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.”
                     HEDLUND V. RYAN                         11

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal
quotation marks and alterations 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].” Harrington, 562 U.S. at 101 (alterations
omitted) (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. 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 102.

                       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
12                       HEDLUND V. RYAN

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 thirdhand from a
subordinate officer, who heard it from an inmate. McKinney
was specifically identified in the plot. The other individual
was someone “charged with murder,” but Hedlund was not
specifically named in the discussion on the record.3 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 its
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

 3
   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.
                          HEDLUND V. RYAN                                13

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
the jurors would not see the Defendants walking stiff-legged
in the braces.4

    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

  4
    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.”
14                       HEDLUND V. RYAN

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.

     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.”5 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


  5
   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.
                        HEDLUND V. RYAN                             15

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
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.6




 6
   Even if we assume that the Arizona Supreme Court’s erroneous factual
statement (misattributing 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.
16                       HEDLUND V. RYAN

      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
only where justified by an essential state interest specific to
each trial.”7 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

  7
     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) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “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.
                     HEDLUND V. RYAN                         17

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, was not
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 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] fail[ed] 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
18                   HEDLUND V. RYAN

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, 349
n.14 (1981) (“[A] prison’s internal security is peculiarly a
matter normally left to the discretion of prison
administrators.”).

   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
                      HEDLUND V. RYAN                         19

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, 341 F.3d at 901 n.1,
the language stating that a court may not rely upon “the
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
20                       HEDLUND V. RYAN

could be covered in a single afternoon.8 The court set forth
detailed procedures to be used at trial to avoid any problems.9

    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. 1992) (en banc). 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




 8
    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. Id. 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.
     9
    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.
                        HEDLUND V. RYAN                              21

reversed the Court of Appeals,10 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 empanel 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. at 539. The Court went on to


 10
   At the same time, the Arizona Supreme Court also reversed its earlier
decision in State v. Lambright, 673 P.2d 1 (Ariz. 1983) (en banc), which
had found that the use of dual juries violated state law.
22                    HEDLUND V. RYAN

say that 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.

     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 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.”).

    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
did not prevent Hedlund from demonstrating lack of motive
                      HEDLUND V. RYAN                           23

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
to the judge, so she asked her mother the name of the victim
24                    HEDLUND V. RYAN

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 was 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
emotional involvement based on [the Juror’s] highly
                      HEDLUND V. RYAN                          25

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.
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, 230
(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 district attorney’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 district attorney; and no evidence suggested a “sinister or
dishonest motive” on the prosecutors’ part. Id. at 214. On
habeas review, the federal district court found the trial court’s
bias hearing insufficient and granted relief, which the Second
Circuit affirmed.
26                    HEDLUND V. RYAN

    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
                      HEDLUND V. RYAN                          27

        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 the
case was a § 2254 proceeding, the trial judge’s findings were
“presumptively correct” and could not 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. Id. 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.
28                        HEDLUND V. RYAN

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 we
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.” 151 F.3d 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 the question whether
she could be impartial with, “Yes, I think I could.”).11

 11
   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, we noted the difference between a juror who is somewhat
indirect in their responses (e.g. 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 row to
whether she could be fair (“I will try to”; “Right. I’ll try”; and “I’ll try”).
                          HEDLUND V. RYAN                                 29

    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.)
(noting that the “Supreme Court has never explicitly adopted
(or rejected) the doctrine of implied bias”), amended by
315 F.3d 1062 (9th Cir. 2002). Thus, Hedlund’s claim fails
on grounds of implied bias.12



Id. at 1111, 1114. We 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. at 1114.
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 v. Spain, 464 U.S. 114, 120 (1983).
   12
      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
30                       HEDLUND V. RYAN

    Although we have presumed bias on a rare occasion, we
have 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.
                        HEDLUND V. RYAN                              31

      IV. Ineffective Assistance of Counsel During Plea
                           Process13

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


 13
    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, 537 U.S. at 336, we
address it.
32                   HEDLUND V. RYAN

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 “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.
                           HEDLUND V. RYAN                                  33

    Second, if counsel’s performance was 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 Mirzayance,
556 U.S. at 123; Bell v. Cone, 535 U.S. 685, 698–99 (2002).

       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.14



  14
     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.
34                  HEDLUND V. RYAN

    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 impanel
       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 penalty
       in this case.
                     HEDLUND V. RYAN                        35

    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,
36                       HEDLUND V. RYAN

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.15 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


 15
    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.
                     HEDLUND V. RYAN                        37

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 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. 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.
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 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
38                   HEDLUND V. RYAN

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
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
                      HEDLUND V. RYAN                           39

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 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.
40                   HEDLUND V. RYAN

    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
in his motion to recuse. 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.
                        HEDLUND V. RYAN                              41

  V. Ineffective Assistance of Counsel During Penalty
                         Phase16

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.”

    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


  16
    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, 537 U.S. at 336, we
address it.
42                   HEDLUND V. RYAN

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
       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
                     HEDLUND V. RYAN                       43

“totally psychotic,” Hedlund did have “neurological
impairments which impaired his judgment.”

    Dr. Charles Shaw, 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
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.
44                   HEDLUND V. RYAN

    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
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.
                     HEDLUND V. RYAN                        45

    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. See e.g., Cullen v. Pinholster,
563 U.S. 170, 189 (2011). Under Strickland, we must first
ask whether “counsel’s assistance was reasonable considering
all the circumstances.” Strickland, 466 U.S. at 688. 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
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
46                   HEDLUND V. RYAN

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.

     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
                     HEDLUND V. RYAN                         47

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
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 presentence report. 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. They simply speak to the weight
afforded the experts’ opinions in determining mitigation—
weight based on reliability and credibility. To the extent Dr.
48                      HEDLUND V. RYAN

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.

    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.

       VI. 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


  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, 537 U.S. at 336, we
address it.
                     HEDLUND V. RYAN                        49

and credible. However, the court found that the mitigating
factors (Hedlund’s childhood abuse and long-term alcohol
use) did not outweigh the 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 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 applied an
   unconstitutional causal nexus test to Hedlund’s
   mitigating evidence.

    We now consider whether the Arizona Supreme Court
applied an unconstitutional causal nexus test in affirming
Hedlund’s death sentence on its independent review of
Hedlund’s death sentence. We first look at our precedent
regarding the role mitigation evidence plays in sentencing
decisions. We then apply our recent decision in McKinney v.
50                    HEDLUND V. RYAN

Ryan, No. 09-99018, 2015 WL 9466506 (9th Cir. Dec. 29,
2015) (en banc).

     1. A sentencing court may not refuse to consider any
        relevant mitigating evidence.

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

        [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 so 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 . . . .

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 capital case where the trial judge stated
that he could not consider mitigating evidence of the
                         HEDLUND V. RYAN                              51

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” from criminal responsibility. Id. at
113. The Supreme Court reversed, explaining:

         Just 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 [it] may not give it
         no weight by excluding such evidence from
         [its] consideration.

Id. at 113–15.19

    For a period of a little over 15 years, in violation of
Eddings, the Arizona Supreme Court articulated and applied
a “causal nexus” test in capital cases. The test forbade giving
weight to nonstatutory mitigating evidence, such as family

  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 (alterations 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
that evidence in imposing sentence.” Penry v. Lynaugh, 492 U.S. 302,
319 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002).
52                       HEDLUND V. RYAN

background, unless such evidence was causally connected to
the crime.20 See, e.g., State v. Wallace, 773 P.2d 983, 986
(Ariz. 1989) (en banc) (“A difficult family background is a
relevant mitigating circumstance if a defendant can show that
something in that background had an effect or impact on his
behavior that was beyond the defendant’s control.”); accord
State v. Ross, 886 P.2d 1354, 1363 (Ariz. 1994) (en banc) (“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.’” (quoting Wallace,
773 P.2d at 986)).

    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.”).21 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) (per curiam).               The Court

  20
     Arizona law provides five statutory mitigating factors, as well as a
catchall nonstatutory mitigating factor encompassing “any factors
proffered by the defendant or the state that are relevant in determining
whether to impose a sentence less than death, including any aspect of the
defendant’s character, propensities or record and any of the circumstances
of the offense.” Ariz. Rev. Stat. § 13-751(G). Eddings and Lockett apply
only to nonstatutory mitigating evidence. See McKinney, 2015 WL
9466506, at *9.
  21
     Following the Supreme Court’s decision in Tennard, the Arizona
Supreme Court abandoned its causal nexus test. See State v. Newell,
132 P.3d 833, 849 (Ariz. 2006) (en banc); State v. Anderson, 111 P.3d
369, 391–92 (Ariz. 2005) (en banc).
                        HEDLUND V. RYAN                             53

“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), overruled on other grounds by McKinney,
2015 WL 9466506, at *17.

    In the past, to determine whether the Arizona Supreme
Court used its causal nexus test, we applied a “clear
indication” rule: We could find Eddings error only if there
was a clear indication in the record that the court had refused,
as a matter of law, to treat nonstatutory mitigation evidence
as relevant unless it had some effect on the petitioner’s
criminal behavior. See Schad, 671 F.3d at 724. However, in
McKinney, we determined that the “clear indication” rule was
an “inappropriate and unnecessary gloss on the deference
already required under § 2254(d).” 2015 WL 9466506, at
*17.22

    2. Application of the causal nexus test in this case.

    The question (whether the Arizona Supreme Court
applied the unconstitutional causal nexus test in sentencing
Hedlund) has already been answered in the affirmative by our
en banc court in McKinney, 2015 WL 9466506, at *17–20.
As companion cases, the Arizona Supreme Court reviewed
the death sentences of both Hedlund and McKinney in the
same opinion. See McKinney, 917 P.2d at 1214. In doing so,
the Arizona Supreme Court intertwined its analysis for both
Hedlund and McKinney, requiring the same outcome

 22
    We express no opinion as to how to apply McKinney in future Arizona
capital cases from the suspect time period.
54                  HEDLUND V. RYAN

regarding this issue. Because we are bound by our court’s
decision in McKinney, we follow its conclusion that the
Arizona Supreme Court applied the unconstitutional causal
nexus test in affirming Hedlund’s sentence.

    The Arizona Supreme Court used much of the same
reasoning in affirming the sentences for Hedlund and
McKinney. First, the court cited to its prior opinion in Ross
to support its conclusion that Hedlund’s and McKinney’s
difficult family background and childhood abuse did not
necessarily have substantial mitigating weight.           See
McKinney, 917 P.2d at 1227 (Hedlund); id. at 1234
(McKinney). In McKinney, we noted regarding Hedlund’s
sentence:

       The [Arizona Supreme Court] first affirmed
       Hedlund’s death sentence, writing, “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. See
       State v. Ross, . . . 886 P.2d 1354, 1363
       (1994).” McKinney, 917 P.2d at 122[7]. As
       we pointed out above, the pin citation to Ross
       is a citation to the precise page on which the
       Arizona Supreme Court had two years earlier
       articulated its unconstitutional “causal nexus”
       test for non-statutory mitigation.

2015 WL 9466506, at *18. Later, when discussing
McKinney’s sentence, we referred back to the Arizona
Supreme Court’s analysis of Hedlund’s sentence, in which it
                     HEDLUND V. RYAN                       55

said: “As we noted in discussing Hedlund’s claim on this
same issue, a difficult family background, including
childhood abuse, does not necessarily have substantial
mitigating weight absent a showing that it significantly
affected or impacted the defendant’s ability to perceive,
comprehend, or control his actions. See State v. Ross, . . .
886 P.2d 1354, 1363 (1994)[.]” Id. at *19 (alterations in
original) (quoting McKinney, 917 P.2d at 1234).

     Second, the Arizona Supreme Court adopted the
sentencing court’s analysis of the mitigation evidence for
both Hedlund and McKinney. For Hedlund, the sentencing
court determined “that none of [Hedlund’s] 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.” For McKinney,
the sentencing court similarly found that the mitigation
evidence did not “in any way affect[] [McKinney’s] conduct
in this case.” As we explained in McKinney, “[The
sentencing court’s] language . . . echoes the language of
Arizona’s statutory mitigator under Ariz. Rev. Stat. § 13-
703(G)(1). It also echoes the language used by the Arizona
Supreme Court to articulate the unconstitutional causal nexus
test applied to nonstatutory mitigation.” McKinney, 2015 WL
9466506, at *18.

    Thus, in McKinney, we concluded that the Arizona
Supreme Court’s decision was contrary to Eddings, based in
part on (1) “the Arizona Supreme Court’s recital of the causal
nexus test for nonstatutory mitigation and its pin citation to
the precise page in Ross where it had previously articulated
that test,” and (2) “the factual conclusion by the sentencing
judge, which the Arizona Supreme Court accepted, that
56                       HEDLUND V. RYAN

McKinney’s [mitigation evidence] did not ‘in any way
affect[] his conduct in this case.’” Id. at *20 (second
alteration in original). This same reasoning applies to the
Arizona Supreme Court’s decision for Hedlund.
Accordingly, we adopt our en banc court’s conclusion in
McKinney that the Arizona Supreme Court’s decision of
Hedlund’s claims was contrary to Eddings.23

    Having determined that the Arizona Supreme Court
committed Eddings error, we next must decide whether such
error was harmless. See id. The harmless error standard on
habeas review provides that “relief must be granted” if the
error “had substantial and injurious effect” on the sentencing
decision. See Brecht, 507 U.S. at 623 (quoting Kotteakos,
328 U.S. at 776); McKinney, 2015 WL 9466506, at *21.
Again, we adopt our conclusion in McKinney. The Eddings
error (committed by the Arizona Supreme Court in this case)
had a “substantial and injurious effect” on Hedlund’s
sentence within the meaning of Brecht, and was, therefore,
not harmless. See McKinney, 2015 WL 9466506, at *21–22.


 23
    We note that a court is free to assign less weight to mitigating factors
that did not influence a defendant’s conduct at the time of 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.”). However, a court may not refuse to consider
mitigating evidence because it lacked a causal nexus to the crime. In sum,
a court may consider causal nexus in assessing the weight of mitigating
evidence, but not in assessing its relevance. The Arizona Supreme Court
has correctly recognized this in post-Tennard cases. See Newell, 132 P.3d
at 849 (“We do not require that a nexus between the mitigating factors and
the crime be established before we consider the mitigation evidence. But
the failure to establish such a causal connection may be considered in
assessing the quality and strength of the mitigation evidence.” (citation
omitted)).
                      HEDLUND V. RYAN                          57

                       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, and (5) ineffective assistance of
counsel during the penalty phase. However, the district court
should have granted the petition with respect to Hedlund’s
sentence, based on Hedlund’s claim regarding (6) the Arizona
Supreme Court’s consideration of mitigating evidence under
Lockett, Eddings, and their progeny. Accordingly, we reverse
the district court’s judgment denying the writ of habeas
corpus. We remand with instructions to grant the writ with
respect to Hedlund’s sentence unless the state, within a
reasonable period, either corrects the constitutional error in
his death sentence or vacates the sentence and imposes a
lesser sentence consistent with law.

    Each party shall bear its own costs on appeal.

  REVERSED in part, AFFIRMED in part, and
REMANDED.



BEA, Circuit Judge, concurring:

    I write separately to express my own views as to Part VI
of the majority opinion, which holds that the Arizona
Supreme Court applied a “causal nexus” test to Hedlund’s
nonstatutory mitigating evidence, in violation of Eddings v.
Oklahoma, 455 U.S. 104 (1982). Our about-face on this issue,
see Hedlund v. Ryan, 750 F.3d 793, 813–20 (9th Cir. 2014)
(finding no Eddings error), is solely the result of our court’s
58                      HEDLUND V. RYAN

recent decision in McKinney v. Ryan, No. 09-99018, 2015
WL 9466506 (9th Cir. Dec. 29, 2015) (en banc). For the
reasons discussed at length in my McKinney dissent, id. at
*25–*45 (Bea, J., dissenting), I think our analysis of the
Eddings issue was wrong and conflicts with Supreme Court
precedent requiring us to “presum[e] that state courts know
and follow the law,” Woodford v. Visciotti, 537 U.S. 19, 24
(2002). I will not here rehash that dissent.

    It is unfortunate that McKinney’s errors have determined
this case, because it is more difficult to find a true Eddings
violation here than it was in McKinney. As detailed below,
Judge Sheldon, the trial judge who sentenced both Hedlund
and McKinney to death, was crystal clear that he understood
Eddings’s mandate and considered all of Hedlund’s
mitigating evidence before imposing the death penalty.1
Judge Sheldon plainly did not commit Eddings error.

    Judge Wardlaw disputes my interpretation of Judge
Sheldon’s statements during Hedlund’s sentencing hearing.
Partial concurrence at 66–69. To do so, she plucks a snippet
from the sentencing hearing that, in her view, shows that
Judge Sheldon applied an unconstitutional causal-nexus test
to exclude certain mitigating evidence from his consideration.
Id. at 67–68. However, this “smoking gun” evidence of an
Eddings violation demonstrates only that Judge Sheldon
considered whether there was a causal connection between
Hedlund’s proffered mitigating evidence and his crimes when
considering the existence of a statutory mitigating factor,



  1
    Although Hedlund and McKinney were tried together (albeit with
separate juries) and sentenced by the same trial judge, their sentencing
hearings took place on separate days a week apart.
                         HEDLUND V. RYAN                              59

Ariz. Rev. Stat. § 13-751(G)(1),2 which was perfectly
permissible. See McKinney, 2105 WL 9466506, at *9 (“When
applied solely in the context of statutory mitigation under
[Ariz. Rev. Stat. § 13-751(G)(1)], the causal nexus test does
not violate Eddings.”). To dispel any doubts, I recount here
Judge Sheldon’s statements during Hedlund’s sentencing
hearing:

•   Judge Sheldon first sentenced Hedlund for several non-
    capital crimes before turning to the question whether
    Hedlund was eligible for the death penalty for the
    homicide of Jim McClain. Sentencing Hr’g Tr. 2–5.
    Judge Sheldon concluded that the McClain homicide
    made Hedlund eligible for the death penalty under the
    Supreme Court decisions Enmund v. Florida, 458 U.S.
    782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987).
    Sentencing Hr’g Tr. 5–12.

•   Judge Sheldon then “proceed[ed] to a discussion of the
    aggravating or mitigating circumstances in this case.” Id.
    at 12. He started by setting out the (correct) parameters of
    his inquiry:

         [T]he punishment must be tailored to a
         defendant’s personal responsibility and moral
         guilt. The sentence imposed should reflect a
         reasoned, moral response to the defendant’s
         background, character, and the crime.
         Although the requirements of channeled or
         guided discretion enunciated in Gregg v.


    2
       Arizona’s statute enumerating death-penalty aggravating and
mitigating factors was previously codified at Ariz. Rev. Stat. § 13-703. I
reference the statute’s current location, Ariz. Rev. Stat. § 13-751.
60                    HEDLUND V. RYAN

        Georgia, [428 U.S. 153 (1976),] which sought
        consistent, rational application of the death
        penalty, may appear in a superficial analysis
        to be in conflict with an expansive reading of
        Eddings v. Oklahoma[,] Lockett [v.] Ohio and
        other cases which require individualized
        sentences and consideration of all mitigating
        evidence offered, these cases when read
        together simply require the sentencing judge,
        as the conscience of the community, to weigh
        carefully, fairly, objectively, all of the
        evidence offered at sentencing, recognizing
        that not everyone who commits murder should
        be put to death.

     Id. at 12–13.

•    Judge Sheldon then found that Arizona had established
     two statutory aggravating factors, Ariz. Rev. Stat. § 13-
     751(F)(2), (5), before he “move[d] to a consideration of
     the mitigating factors.” Sentencing Hr’g Tr. 13–16. He
     found that the facts and circumstances of this case ruled
     out three statutory mitigating factors, Ariz. Rev. Stat.
     § 13-751(G)(3)–(5). Sentencing Hr’g Tr. 16–17.

•    Judge Sheldon next considered Hedlund’s mitigating
     evidence of mental retardation, alcohol and drug use, and
     child abuse. He considered this evidence in the context of
     two statutory mitigating statutory factors, Ariz. Rev. Stat.
     § 13-751(G)(1) (“The defendant’s capacity to appreciate
     the wrongfulness of his conduct or to conform his
     conduct to the requirements of law was significantly
     impaired, but not so impaired as to constitute a defense to
     prosecution.”) and (G)(2) (“The defendant was under
                 HEDLUND V. RYAN                         61

unusual and substantial duress, although not such as to
constitute a defense to prosecution.”), and also as
nonstatutory mitigating evidence:

•   Based on the information provided to Judge Sheldon,
    he found, as a matter of fact, that Hedlund was “an
    intelligent, reflective individual, certainly not
    retarded.” Sentencing Hr’g Tr. 17–18.

•   Judge Sheldon discredited the evidence that
    Hedlund’s conduct during the McClain homicide was
    affected by alcohol use. Id. at 18–20. As such, Judge
    Sheldon concluded that Hedlund’s alcohol use did not
    establish the (G)(1) statutory mitigating factor, but he
    considered Hedlund’s alcohol use as nonstatutory
    mitigating evidence: “Although the Court has
    considered evidence of alcohol consumption as
    evidence of mitigation, there is little to demonstrate
    that it in any [way] substantially affected the
    defendant’s ability to understand the lawfulness of his
    conduct. . . . The Court has concluded that although
    evidence of alcohol use not being a mitigating
    circumstance under (G)(1), [it] nevertheless should be
    considered as mitigating evidence.” Id. at 19–20.

•   Judge Sheldon then found that evidence and
    testimony supporting Hedlund’s “psychological
    symptoms” were entitled to “little weight” and did not
    establish the (G)(1) or (G)(2) statutory mitigating
    factor. Id. at 20–21.

•   With respect to evidence of child abuse, Judge
    Sheldon found: “[T]here was no persuasive testimony
    presented that leads to the conclusion that the abuse
62                     HEDLUND V. RYAN

        by—that the defendant suffered as a child resulted in
        him being under unusual or substantial duress at the
        time of the murders. I’m specifically finding that
        there is no substantial evidence to support a finding
        under (G)(1).” Id. at 21.3

•    Judge Sheldon wrapped up his analysis, reiterating that he
     considered all of the mitigating evidence, for purposes of
     the statutory and nonstatutory mitigating factors:

            The defendant’s personality traits, his past
        drug and alcohol abuse, and child abuse have
        been considered by the Court. If not
        demonstrating the existence of the mitigating
        factors under (G)(1), they have nevertheless
        been given consideration by the Court. I have
        concluded . . . that the evidence regarding Mr.
        Hedlund’s childhood can be considered as
        truthful by the Court, that there were
        significant aspects of his childhood which
        were clearly abusive.

            Certainly the memories of children
        may . . . become exaggerated with age. But
        there certainly were specific incidences that
        were testified to by the witnesses in this case
        that clearly have made an impression upon
        them which they will probably not forget for
        the rest of their lives. This has made an
        impact on me. I have considered it. I think it
        is the Court’s obligation to consider it,

  3
    This may be a misstatement, as the “unusual or substantial duress”
factor is (G)(2), not (G)(1). See Ariz. Rev. Stat. § 13-751(G)(1)–(2).
                     HEDLUND V. RYAN                        63

        whether or not it complies with the
        requirements in (G)(1).

    Id. at 23.

•   Judge Sheldon also found, as 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.” Id. at 24. Judge Wardlaw reads this to mean
    that Judge Sheldon excluded all of those mitigating
    factors because of the lack of a causal nexus. See partial
    concurrence at 66–69. This reading stretches Judge
    Sheldon’s words far beyond what they say. Judge
    Sheldon’s statement merely parroted the text of the (G)(1)
    statutory mitigating factor, see Ariz. Rev. Stat. § 13-
    751(G)(1) (“The defendant’s capacity to appreciate the
    wrongfulness of his conduct or to conform his conduct to
    the requirements of law was significantly impaired, but
    not so impaired as to constitute a defense to
    prosecution.”), and is best understood to reiterate that the
    (G)(1) statutory mitigating factor was not established. It
    does not conflict with Judge Sheldon’s other statements
    making clear that he had considered all of Hedlund’s
    mitigating evidence.

•   Judge Sheldon also specifically considered various non-
    nexus mitigating evidence, including Hedlund’s
    “intellectual ability to engage in rehabilitation,”
    Sentencing Hr’g Tr. 22, “[Hedlund’s] character as a
    young person,” id. at 25, and “the impact that the
    sentence in this case will have on [Hedlund’s] sister and
    [his] family,” id.
64                    HEDLUND V. RYAN

•    In the end, however, Judge Sheldon concluded: “[H]aving
     reviewed all of this evidence, [Hedlund’s] past character,
     I’ve concluded that none of the mitigation evidence
     considered by the Court in this case, either individually or
     cumulatively, are sufficiently substantial to call for
     leniency. And I am ordering that [Hedlund] be sentenced
     to death for the death of Mr. McClain.” Id. at 26.

    Reading the entire transcript of the sentencing hearing can
lead to only one conclusion: Judge Sheldon understood
Eddings’s mandate and considered all of Hedlund’s proffered
mitigating evidence, but ultimately found the evidence
insufficient to warrant leniency. Id. The single statement on
which Judge Wardlaw relies shows only that Judge Sheldon
constitutionally applied a causal-nexus test in the context of
an Arizona statutory mitigating factor. That statement does
not show that Judge Sheldon excluded mitigating evidence
from his consideration, and Judge Sheldon’s other statements
repeatedly demonstrate otherwise.

    In any event, McKinney teaches us that what Judge
Sheldon said is of little consequence, because the Arizona
Supreme Court, on independent review of Hedlund’s and
McKinney’s death sentences, independently violated
Eddings. See McKinney, 2015 WL 9466506, at *17–*20.
Indeed, after McKinney, we must assume that the Arizona
Supreme Court misunderstood Eddings and ignored Judge
Sheldon’s (quite correct) discussion of what Eddings
requires—even though the Arizona Supreme Court apparently
accepted some of Judge Sheldon’s other findings. See id. at
                         HEDLUND V. RYAN                               65

*20; id. at *42 & n.40 (Bea, J., dissenting); see also slip op.
at 53–56.4

    In light of McKinney I agree that we must find that the
Arizona Supreme Court also committed Eddings error as to
Hedlund. The Arizona Supreme Court reviewed both
Hedlund’s and McKinney’s death sentences in the same
opinion, State v. McKinney, 917 P.2d 1214 (Ariz. 1996), and
it would make little sense for us to hold that the court applied
Eddings properly in one part of the opinion and improperly in
another part. My agreement on this point should not be
construed as a concession that McKinney was correctly
decided. It was not. But, I recognize that, as a three-judge
panel, we are bound to follow McKinney until it is overruled
by the Supreme Court or a future en banc panel of our court.
See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)
(en banc). As a result, I concur in the majority opinion in full.




   4
     If I were convinced that the Arizona Supreme Court applied an
unconstitutional causal-nexus test to exclude Hedlund’s proffered
mitigating evidence, I would have no trouble reversing the district court’s
decision denying Hedlund’s petition. With respect to Hedlund, but not
McKinney, the Arizona Supreme Court struck one of the aggravating
factors found by Judge Sheldon. See State v. McKinney, 917 P.2d 1214,
1228–31 (Ariz. 1996) (en banc). If the Arizona Supreme Court did violate
Eddings, its independent reweighing of the remaining aggravating factor
against the mitigating evidence was likely flawed. See Styers v. Schriro,
547 F.3d 1026, 1034–36 (9th Cir. 2008) (per curiam); see also Clemons
v. Mississippi, 494 U.S. 738, 748–49 (1990).
66                   HEDLUND V. RYAN

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

    I join Parts II, III, and VI of the majority opinion. The
Arizona Supreme Court’s Eddings error requires us to grant
the writ with respect to Hedlund’s sentence. See 28 U.S.C.
§ 2254(d). I have previously explained my disagreement with
the majority’s disposition of Hedlund’s claims of
unconstitutional shackling during trial and ineffective
assistance of counsel during the plea process and penalty
phase. Hedlund v. Ryan, 750 F.3d 793, 831–43 (9th Cir.
2014) (Wardlaw, J., concurring in part and dissenting in part).
I see no need to do so again here.

    The majority opinion correctly concludes that the Arizona
state courts violated Eddings v. Oklahoma, 455 U.S. 104
(1982), in their treatment of Hedlund’s mitigating evidence.
They “did precisely what Eddings prohibits: they found
mitigating evidence of Hedlund’s abusive childhood as a
matter of fact, but treated it as non-mitigating as a matter of
law because it lacked a causal connection to the crime.”
Hedlund, 750 F.3d at 826 (Wardlaw, J., concurring in part
and dissenting in part).

     It is unfortunate that Judge Bea believes it is “more
difficult to find a true Eddings violation” in Hedlund’s case
than in his half-brother McKinney’s. Slip op. at 58 (Bea, J.,
concurring). Judge N.R. Smith, in his majority opinion, aptly
and accurately describes how the Arizona Supreme Court
“intertwined its analysis for both Hedlund and McKinney” in
its unconstitutional application of the causal nexus test. Slip
op. at 53–54; see id. at 53–56. Judge Bea minimizes the
import of this violation of Hedlund’s constitutional rights.
Judge Bea characterizes this as a case in which McKinney
                     HEDLUND V. RYAN                       67

forces us unfairly to disregard the findings of the sentencing
court, which he concludes the Arizona Supreme Court most
likely considered. Slip op. at 64 (Bea, J., concurring). He
contends the sentencing court, for its part, “plainly did not
commit Eddings error.” Id. at 58. He is wrong.

    The sentencing court’s analysis of Hedlund’s mitigating
evidence was thoroughly, and fatally, infected with Eddings
error. Before it imposed a sentence of death, the sentencing
court stated:

       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
68                   HEDLUND V. RYAN

       intelligence and the ability to refuse continued
       participation.

Sentencing Hr’g Tr. at 23–24, July 30, 1993 (emphasis
added). Thus, the sentencing court required a nexus between
Hedlund’s horrifically abusive childhood and his crime
before it would consider Hedlund’s evidence in mitigation.
The sentencing court gave no indication that this requirement
went merely to the weight of this evidence rather than its
relevance. “This refusal to consider and give effect to
significant mitigating evidence that the court found credible
because it was not tied to [Hedlund’s] behavior in committing
the crime is contrary to Eddings.” Hedlund, 750 F.3d at 829
(Wardlaw, J., concurring in part and dissenting in part).

    The Arizona Supreme Court, in turn, plainly and
improperly applied a causal nexus requirement to its own
consideration of Hedlund’s tormented childhood. In so
doing, that Court directly relied upon its analysis in State v.
Ross, 886 P.2d 1354 (Ariz. 1994). See State v. McKinney,
917 P.2d 1214, 1227 (Ariz. 1996). Ross held unambiguously
that 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.” 886 P.2d
at 1363 (citation and internal quotation marks omitted)
(emphasis added). The Ross Court then flatly rejected
mitigating evidence of Ross’s abusive childhood. Id. As the
majority opinion observes, when the Arizona Supreme Court
deemed Hedlund’s mitigation evidence irrelevant and
affirmed his sentence of death, it recited the unconstitutional
causal nexus test and gave a pin citation to the precise page
in Ross where it had previously articulated that test—just as
                     HEDLUND V. RYAN                        69

it did when it affirmed the death sentence of Hedlund’s half-
brother and co-defendant, McKinney. Slip op. at 55.

    Judge Bea’s concurrence resurrects from his McKinney
dissent the conclusion that “our analysis of the Eddings issue
was wrong and conflicts with Supreme Court precedent
requiring us to ‘presum[e] that state courts know and follow
the law.’” Slip op. at 58 (Bea, J., concurring) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). As Judge Bea
refrains from “rehash[ing] that dissent,” id. at 58, I will not
rehash the McKinney en banc panel majority’s decisive
refutation of it. Suffice it here to say that the presumption
that state courts know and follow the law is not irrebuttable,
and the Arizona Supreme Court thoroughly rebutted this
presumption in Hedlund’s case, as in others. McKinney v.
Ryan, No. 09-99018, 2015 WL 9466506, at *2 (9th Cir. Dec.
29, 2015) (en banc). As our McKinney en banc opinion
exhaustively documents, the Arizona Supreme Court
consistently applied the unconstitutional causal nexus test
during the fifteen-year period it was in effect. Id. at *12–16,
*18–20, *23–25. And it did so here.

     In Hedlund’s case, as in McKinney’s, the Arizona
Supreme Court’s decision was “contrary to clearly
established federal law as established in Eddings.” Id. at *17;
see id. at *26. In Hedlund’s case, as in McKinney’s, the
Arizona Supreme Court’s error went deeper than the way it
structured its opinion or cited authority. Like the sentencing
court, the Arizona Supreme Court completely disregarded
important mitigating evidence, and violated Hedlund’s Eighth
and Fourteenth Amendment rights by depriving him of a
properly informed, individualized determination before he
was punished with a sentence of death. See id. at *11, *22
(citing Eddings, 455 U.S. at 113–15; Woodson v. North
70                  HEDLUND V. RYAN

Carolina, 428 U.S. 280, 304 (1976)). Because the Arizona
courts “applied the prohibited causal nexus test, Hedlund has
not yet received the constitutionally-required review that he
is due.” Hedlund, 750 F.3d at 827 (Wardlaw, J., concurring
in part and dissenting in part). We must, and should, grant
the writ with respect to Hedlund’s death sentence.
