                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 04 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DINO WAYNE KYZAR,                                No. 08-15794

              Petitioner - Appellant,            D.C. No. 2:06-CV-02015-SRB

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN and STATE OF
ARIZONA ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                     Argued and Submitted November 1, 2010
                            San Francisco, California

Before: KOZINSKI, Chief Judge,** ALARCÓN and RYMER, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              Chief Judge Kozinski was drawn to replace Judge Trager, who died
on January 5, 2011. He has read the briefs, reviewed the record, and listened to the
tape of oral argument.
      Dino Wayne Kyzar appeals the district court’s denial of his petition for writ

of habeas corpus.



                                           I

      The severance determination by the Arizona Court of Appeals was not

contrary to, or an unreasonable application of, federal law. See 28 U.S.C.

§ 2254(d); Zafiro v. United States, 506 U.S. 534, 539 (1993). Long’s testimony

was not “essential exculpatory evidence.” Nor was Kyzar convicted on the basis of

“rub off” evidence; most of the evidence was common to both defendants, and

even if it were proper to consider the post-trial juror interview, the interview does

not show the jury was unable to consider the evidence against each defendant

separately. In fact, the jury acquitted Kyzar on two counts. Neither the state’s

requirement that Kyzar share peremptory challenges with Long, nor the

empaneling of a death-qualified jury, violated any clearly established right to a fair

trial. See Stilson v. United States, 250 U.S. 583, 585-86 (1919); see also Buchanan

v. Kentucky, 483 U.S. 402, 420 (1987). Finally, the trial court’s admission of

autopsy photographs was not unreasonable because they were relevant to establish

Kyzar’s role in the conspiracy and its objective. Thus, clearly established rights

were not offended by the state court’s determination, singly, or overall.
                                           II

      The trial transcript was lodged in this court, and we prefer in this case for the

district court in the first instance to review portions relevant to Kyzar’s

insufficiency of the evidence claim. For this limited purpose, we vacate the

judgment and remand. The panel will retain jurisdiction over an appeal, if any,

from the order on remand.



                                          III

      Because Kyzar has not made a “substantial showing of the denial of a

constitutional right” on the remaining issues, we decline to grant a certificate of

appealability. See 28 U.S.C. § 2253(c)(2).

      AFFIRMED IN PART; VACATED AND REMANDED IN PART. The

parties shall bear their own costs.
