Dixon v. Ryan et al

Filing 61

ORDER that Petitioner's Petition for Writ of Habeas Corpus Doc. 27 ) is DENIED. The Clerk shall enter judgment. The stay of execution entered by this Court on February 12, 2014 (Doc. 5 ), is VACATED. IT IS FURTHER ORDERED denying 49 Petiti oner's motion for evidentiary development. IT IS FURTHER ORDERED granting a certificate of appealability with respect to Claims 1, 3 (A), and 9. The Clerk shall forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court. Signed by Judge Diane J Humetewa on 3/16/16.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Clarence Wayne Dixon,
Petitioner,

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v.

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No. CV-14-258-PHX-DJH
ORDER

Charles L. Ryan, et al.,

DEATH PENALTY CASE

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Respondents.

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Clarence Dixon is an Arizona death row inmate. Before the Court is Dixon’s

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petition for writ of habeas corpus. (Doc. 27.) Respondents filed an answer to the petition,

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and Dixon filed a reply. (Docs. 36, 39.) Also before the Court is Dixon’s motion for

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evidentiary development, which Respondents oppose. (Docs. 49, 55.) For the reasons set

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forth below, the Court concludes that Dixon is not entitled to habeas relief or evidentiary

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development.

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I. BACKGROUND

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In 2008, Dixon was convicted of first-degree murder and sentenced to death for

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the 1978 murder of Deana Bowdoin. The following facts surrounding the crime are taken

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from the opinion of the Arizona Supreme Court upholding the conviction and sentence.

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State v. Dixon, 226 Ariz. 545, 548–49, 250 P.3d 1174, 1177–78 (2011).

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On January 6, 1978, Deana, a 21-year-old Arizona State University senior, had

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dinner with her parents and then went to a nearby bar to meet a female friend. The two

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arrived at the bar at 9:00 p.m. and stayed until approximately 12:30 a.m., when Deana

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told her friend she was going home. She drove away alone.
Deana and her boyfriend, Michael Banes, lived together in Tempe. He returned to
their apartment at about 2:00 a.m. after spending the evening with his brother and found
Deana dead on the bed. She had been strangled with a belt and stabbed several times.
Investigators found semen in Deana’s vagina and on her underwear, but could not
match the resulting DNA profile to any suspect until 2001, when a police detective
checked the profile against a national database and found that it matched that of Clarence
Dixon, an Arizona prison inmate. His DNA was on file due to a 1985 rape conviction.1
Dixon was initially charged with first-degree murder, under both premeditation
and felony murder theories, and rape in the first degree. The rape charge was dropped as
outside the statute of limitations.

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Dixon chose to represent himself at trial, with the assistance of advisory counsel.

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The jury found that he had committed both premeditated and felony murder. At

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sentencing, the jury found two aggravating factors: that Dixon had previously been

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convicted of a crime punishable by life imprisonment, A.R.S. § 13–751(F)(1), and that

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the murder was especially cruel and heinous, A.R.S. § 13–751(F)(6). The jury then

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determined that Dixon should be sentenced to death.

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The Arizona Supreme Court affirmed Dixon’s conviction and sentence on appeal.
Dixon, 226 Ariz. 545, 250 P.3d 1174.

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In his state post-conviction relief (“PCR”) proceeding, Dixon, now represented by

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counsel, raised three claims: (1) the state supreme court should not have affirmed his

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death sentence on independent review; (2) his pre-trial counsel provided constitutionally

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ineffective assistance by failing to challenge Dixon’s competency to waive counsel; and

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(3) advisory counsel provided ineffective assistance. The PCR court rejected the claims

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and the Arizona Supreme Court denied review on February 11, 2014.

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While on probation for a 1978 assault and burglary, Dixon kidnapped and
sexually assaulted a Northern Arizona University (“NAU”) student at knifepoint. See
State v. Dixon, 153 Ariz. 151, 152, 735 P.2d 761, 762 (1987). He was sentenced to seven
consecutive 25-years-to-life sentences. Id.
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II. APPLICABLE LAW

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Because it was filed after April 24, 1996, this case is governed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254

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(Ҥ 2254).2 Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v. Garceau,

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538 U.S. 202, 210 (2003).

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A.

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Exhaustion and Procedural Default
Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears

that the petitioner has exhausted all available state court remedies. 28 U.S.C. §
2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy,
455 U.S. 509 (1982). To exhaust state remedies, the petitioner must “fairly present” his
claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999).
A claim is fairly presented if the petitioner has described the operative facts and
the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6
(1982); Picard v. Connor, 404 U.S. 270, 277–78 (1971). A petitioner must clearly alert
the state court that he is alleging a specific federal constitutional violation. See Casey v.
Moore, 386 F.3d 896, 913 (9th Cir. 2004).
In Arizona, there are two procedurally appropriate avenues for petitioners to
exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the
Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a
petitioner is precluded from relief on any claim that could have been raised on appeal or
in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3).
A habeas petitioner’s claims may be precluded from federal review in two ways.
First, a claim may be procedurally defaulted in federal court if it was actually raised in
state court but found by that court to be defaulted on state procedural grounds. Coleman,

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Petitioner’s challenge to the constitutionality of the AEDPA is meritless. See
Crater v. Galaza, 491 F.3d 1119, 1125–26 (9th Cir. 2007) (holding that AEDPA violates
neither the Suspension Clause nor separation of powers).
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501 U.S. at 729–30. Second, a claim may be procedurally defaulted if the petitioner failed
to present it in state court and “the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir.
1998).
As a general matter, the Court will not review the merits of a procedurally
defaulted claim unless the petitioner demonstrates legitimate cause for his failure to
exhaust the claim in state court and prejudice from the alleged constitutional violation, or
shows that a fundamental miscarriage of justice would result if the claim were not heard
on the merits in federal court. Coleman, 501 U.S. at 750.

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Because “[t]here is no constitutional right to an attorney in state post-conviction

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proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of

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counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal citations omitted).

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Consequently, any ineffectiveness of PCR counsel will ordinarily not establish cause to

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excuse a procedural default.

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However, as discussed in more detail below, the Supreme Court has recognized a

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“narrow exception” to Coleman’s procedural default principle: “inadequate assistance of

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counsel at initial-review collateral proceedings may establish cause for a prisoner’s

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procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S.

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Ct. 1309, 1315 (2012). The Ninth Circuit has expanded Martinez to include procedurally

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defaulted claims of ineffective assistance of appellate counsel. Nguyen v. Curry, 736 F.3d

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1287, 1294–96 (9th Cir. 2013).

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B.

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Standard for Habeas Relief
Pursuant to 28 U.S.C. § 2254(d), a petitioner is not entitled to habeas relief on any

claim adjudicated on the merits in state court unless the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court has emphasized that “an unreasonable application of federal
law is different from an incorrect application of federal law.” (Terry) Williams v. Taylor,
529 U.S. 362, 410 (2000). In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme
Court clarified that under § 2254(d), “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Id. at 101. Accordingly, to obtain habeas relief,
a petitioner “must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at

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103; see Frost v. Pryor, 749 F.3d 1212, 1225–26 (10th Cir. 2014) (“[I]f all fairminded

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jurists would agree the state court decision was incorrect, then it was unreasonable. . . . If,

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however, some fairminded jurists could possibly agree with the state court decision, then

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it was not unreasonable and the writ should be denied.”).

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With respect to § 2254(d)(2), a state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable

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in light of the evidence presented in the state-court proceeding.” Miller–El v. Cockrell,

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537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable

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merely because the federal habeas court would have reached a different conclusion in the

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first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds

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reviewing the record might disagree” about the finding in question, “on habeas review

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that does not suffice to supersede the trial court’s . . . determination.” Rice v. Collins, 546

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U.S. 333, 341–342 (2006); see Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014)

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(explaining that on habeas review a court cannot find the state court made an

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unreasonable determination of the facts simply because it would reverse in similar

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circumstances if the case came before it on direct appeal).

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To find that a factual determination is unreasonable under § 2254(d)(2), the court
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must be “convinced that an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported by the record.”
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). “This is a daunting standard—one
that will be satisfied in relatively few cases.” Id.
“[R]eview under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (holding that “the record under review is limited to the record in existence at that
same time, i.e. the record before the state court”); see Murray v. Schriro, 745 F.3d 984,
998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to afford
state courts’ decisions, AEDPA also restricts the scope of the evidence that we can rely
on in the normal course of discharging our responsibilities under § 2254(d)(1).”). The

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Ninth Circuit has observed that “Pinholster and the statutory text make clear that this

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evidentiary limitation is applicable to § 2254(d)(2) claims as well.” Gulbrandson v. Ryan,

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738 F.3d 976, 993 n.6 (2013) (citing § 2254(d)(2) and Pinholster, 563 U.S. at 185 n.7).

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Therefore, as the court explained in Gulbrandson:

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for claims that were adjudicated on the merits in state court, petitioners can
rely only on the record before the state court in order to satisfy the
requirements of § 2254(d). This effectively precludes federal evidentiary
hearings for such claims because the evidence adduced during habeas
proceedings in federal court could not be considered in evaluating whether
the claim meets the requirements of § 2254(d).
Id. at 993–94.
The relevant state court decision is the last reasoned state decision regarding a
claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803–04 (1991)).
Finally, a federal habeas court may reject a claim on the merits without reaching
the question of exhaustion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”); Rhines v. Weber, 544 U.S.
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269, 277 (2005) (a stay is inappropriate in federal court to allow claims to be raised in
state court if they are subject to dismissal under §2254 (b)(2) as “plainly meritless”).
III. DISCUSSION OF CLAIMS

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Dixon raises thirty-six claims in his habeas petition, a number of which contain
several subclaims. (Doc. 27.) Twenty-two of the claims were raised, in whole or in part,
in state court. The remaining claims and subclaims are raised for the first time here.
A.

Claims 1–4
Underlying Claims 1–4 is Dixon’s contention that he was not competent to be

tried, to waive counsel, or to waive the presentation of mitigating evidence. Underlying
Dixon’s alleged incompetence are events that occurred thirty years before his trial.

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In 1977 Dixon was arrested and charged with assault with a deadly weapon after

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striking a teenage girl with a metal pipe. Pursuant to Rule 11 of the Arizona Rules of

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Criminal Procedure, the trial court appointed two psychiatrists, Drs. Otto Bendheim and

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Maier Tuchler, to evaluate Dixon. (PCR Pet., Appx. F.) Both found he was not competent

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to stand trial and suggested a diagnosis of “undifferentiated schizophrenia.” (Id.) Based

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on these reports, on September 14, 1977, Maricopa County Superior Judge Sandra

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O’Connor found Dixon incompetent and committed him to the Arizona State Hospital.

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(Id. Appx. M.)

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On October 26, 1977, psychiatrist Dr. John Marchildon reported that Dixon was

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now competent to stand trial. (Id. Appx. L.) Dr. Marchildon found that Dixon’s “mental

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condition substantially differs at this time with that described by” Tuchler and Bendheim.

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(Id.) Dr. Marchildon’s assessment noted:
Affect is appropriate. Mood is neutral, with some evidence of
apprehension. General information and vocabulary are above average. He is
animated and spontaneous. Memory for recent and remote events is
satisfactory. There is no evidence of confusion or retardation.
Hallucinations and delusions are denied. Insight and judgment are
satisfactory.

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(Id.)
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Dr. Marchildon found no evidence of mental illness. He concluded that Dixon
understood the charges and the nature of the legal proceedings. (Id.) He noted that
Dixon’s “hospital stay has been uneventful. He has participated in psychotherapeutic
sessions, has received no neuroleptic drugs, and has displayed no behavior or ideation
which would indicate mental illness.” (Id.)
On December 5, 1977, Dixon appeared before Judge O’Connor, waived his right
to a jury trial, and agreed that the case could be determined on the record. (See id. App.
M.) On January 5, 1978, Judge O’Connor found Dixon “not guilty by reason of insanity.”
(Id.) The Court ordered that Dixon remain released pending civil proceedings. (Id.)
Dixon murdered Deana less than two days later.
A second basis for allegations of incompetence is Dixon’s so-called

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“perseveration” and “delusional conduct” concerning a particular legal issue arising from

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the 1985 rape case. This issue involved Dixon’s theory that NAU officers lacked the

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statutory authority to investigate the case; therefore, according to Dixon, his prior

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conviction was “fundamentally flawed” and the DNA comparison made pursuant to his

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invalid conviction should be suppressed. (See ROA 143 at 8, 9.)3 In his motion to the trial

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court, Dixon noted that his argument regarding the lack of statutory authority to

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investigate was rejected in the 1985 proceedings; he also listed other instances in which

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he had raised the claim and it had been denied. (Id. at 3–4.) Dixon was convinced,

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however, that the issue was never “fully and correctly adjudicated.” (Id. at 9.)

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1.

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Dixon alleges that he received ineffective assistance of trial counsel when his

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lawyer failed to challenge Dixon’s competency to stand trial and to waive counsel. (Doc.

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27 at 43.) The PCR court denied this claim on the merits. (ME 7/2/13.)4

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a.

Claim 1

Background

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“ROA” refers to the record on appeal from Dixon’s trial and sentencing (Case
No. CR-08-0025-AP).
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“ME” refers to the minute entries of the state court.
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The Maricopa County Public Defender’s Office initially represented Dixon. His
case was assigned to Vikki Liles, who was joined by Garrett Simpson as second chair in
July 2005. Liles objected to court-ordered testing of Dixon’s IQ and to a pre-screening
evaluation for competency and sanity. (ROA 35, 36.) At a hearing in April 2004, Liles
reiterated that Dixon would not participate in an IQ test or a competency examination.
(ME 4/16/03.) Liles told the court, however, that Dixon’s mental health needed to be
investigated for a possible insanity defense and as a potential mitigating circumstance.
(RT 4/16/03.)5 On September 25, 2003, Liles filed a Notice of Possible Insanity Defense.
(ROA 68.) In April 2005, however, Liles informed the court that Dixon would not offer
an insanity defense. (ME 4/15/05.)
In February 2006, Simpson replaced Liles as lead counsel. He drafted a Motion to

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Dismiss, arguing that Dixon’s sanity had not been restored at the time of the murder. (See

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PCR Pet., Ex. E) Thereafter, Dixon moved to waive counsel. (ROA 131.) The court

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granted the motion after a colloquy with Dixon. (RT 3/16/06; ME 3/16/06.) Simpson was

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appointed as advisory counsel. (ME 3/23/06.)

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In his PCR petition, Dixon alleged that Simpson performed ineffectively by failing

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to challenge Dixon’s competency to waive counsel. (PCR Pet. at 10.) He contended that

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Simpson was on notice of Dixon’s lack of competence based on his knowledge of the

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1977 Rule 11 exams and not guilty by reason of insanity verdict (“NGRI”), and because

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of Dixon’s “perseveration” on the “NAU issue.” (Id.)

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During

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PCR

proceedings,

Dr.

John

Toma

performed

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“full

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neuropsychological and psychological evaluation” of Dixon. In his report, dated June 30,

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2012, Dr. Toma diagnosed Dixon with schizophrenia, paranoid type. (PCR Pet., Appx. A

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at 24.) According to Dr. Toma, Dixon “was clearly not capable of representing himself

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and his competence to proceed should have been questioned, especially given the fact

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“RT” refers to the court reporter’s transcript.
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that he was not treated for his psychiatric disorder, the main symptom of which is
paranoid ideation.” (Id.)
b.

Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by the principles set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a
petitioner must show that counsel’s representation fell below an objective standard of
reasonableness and that the deficiency prejudiced the defense. Id. at 687–88.
The inquiry under Strickland is highly deferential, and “every effort [must] be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v.

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Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir.

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2010). To satisfy Strickland’s first prong, a defendant must overcome “the presumption

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that, under the circumstances, the challenged action might be considered sound trial

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strategy.” Id.

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With respect to Strickland’s second prong, a defendant must affirmatively prove

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prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different. A

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reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id. at 694.

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“Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky,

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559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s application of Strickland

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was unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at 105. As

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the Court explained in Richter:

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Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” [Strickland, 466 U.S.] at 689. The
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question is whether an attorney’s representation amounted to incompetence
under “prevailing professional norms,” not whether it deviated from best
practices or most common custom. [Id.] at 690.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” and when
the two apply in tandem, review is “doubly” so. The Strickland standard is
a general one, so the range of reasonable applications is substantial. Federal
habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Id. (additional citations omitted); see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)

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(discussing “doubly deferential judicial review that applies to a Strickland claim under

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the § 2254(d)(1) standard”).

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c.

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In rejecting this claim during the PCR proceedings, Judge Andrew Klein, who also

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presided over Dixon’s trial, explained that at the time Dixon waived counsel the court

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was aware of the 1977 Rule 11 proceedings and NGRI verdict, as well as the fact that

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Dixon’s counsel were contemplating an insanity defense in this trial. (ME 7/2/13 at 5.) As

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Judge Klein explained, “this Court was in possession of information that placed

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Defendant’s mental health at issue. . . . Defendant’s counsel could not have been

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ineffective in failing to give the Court information it already had.” (Id.)

Analysis

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Judge Klein Court further noted that Dixon “was adamant that he would not

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submit to [a competency evaluation].” (Id.) In an affidavit prepared in 2013, Simpson

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likewise attested that “Dixon was vehemently opposed” to “seeking a determination of

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competency.”6 (PCR Pet., Appx. C at 2, ¶ 7.)

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Simpson also stated in his affidavit that he had initially prepared the motion to
dismiss based on the 1978 insanity verdict, but before he could speak with Dixon’s
counsel on the 1977 case, the attorney was quoted in a local publication as having stated
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As a basis for his conclusion that Dixon was not incompetent, Judge Klein also
discussed his first-hand impressions of Dixon:
This Court has a history with this Defendant before the March 16,
2006 hearing on the waiver of counsel and remembers him well. During
Defendant’s previous appearances, the Court had ample opportunity to
observe Defendant, speak with him, and review his written work product.
At all times, the Court found Defendant to be able to adequately advance
his positions, he was cogent in his thought processes, lucid in argument,
and always able to respond to all questions with appropriate answers. At no
time did Defendant appear to this Court to be anything but reasoned in his
approach.

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(ME 7/2/13 at 6.) Finally, the court noted that the record did not contain evidence of

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mental health issues following the NGRI verdict:

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Twenty-seven years elapsed between the date of the murder and the date of
the March 2006 hearing on Defendant’s competence to intelligently,
knowingly and voluntarily waive counsel and to proceed pro se. Defendant
makes no suggestion that either his competency or his sanity were of
concern in proceedings related to the intervening crimes in Maricopa
County (late 1978 court proceedings) or in Coconino County (1985 court
proceedings; 1987 appellate decision) notwithstanding the early-1978
NGRI finding. Moreover, Defendant provides no evidence that he required
treatment for the mental illness or that it interfered with his functioning.
(Id. at 12.)
The court concluded that Simpson “did not act unreasonably in failing to challenge
Defendant’s competency before he was allowed to waive counsel, nor was his
performance deficient at any point during his representation.” (Id. at 7.) The court’s
ruling was neither contrary to nor based on an unreasonable application of clearly
established federal law, nor was it based on an unreasonable determination of the facts.
28 U.S.C. § 2254(d).

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that Dixon was not mentally ill and had “conned” Judge O’Connor. (Id. at ¶¶ 5−6.)
Simpson spoke with the attorney, who “maintained that he made no such statements,” but
nonetheless Simpson “felt compelled to move to withdraw” as advisory counsel. (Id. at ¶
6.) Simpson also attested that Dixon was “adamant that he did not want to be
characterized as insane or mentally ill. I should have seen this as a symptom of his illness
but I did not.” (Id. at ¶ 7.)
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A criminal defendant has a Sixth Amendment right to waive counsel and conduct
his own defense. Faretta v. California, 422 U.S. 806, 819 (1975). However, he may not
waive his right to counsel unless he does so “competently and intelligently.” Godinez v.
Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)).
The standard for determining competency to waive counsel is the same as the standard
for competency to be tried. Id. at 399. It requires that a defendant have (1) “‘a rational as
well as factual understanding of the proceedings against him,’ and (2) ‘sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding.’”
Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (quoting Dusky v. United States, 362
U.S. 402, 402 (1960) (per curiam)). Whether a defendant is capable of understanding the
proceedings and assisting counsel is dependent upon evidence of the defendant’s

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irrational behavior, his demeanor in court, and any prior medical opinions on his

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competence. Drope v. Missouri, 420 U.S. 162, 180 (1975).

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“A claim that counsel was deficient for failing to move for a competency hearing

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will succeed only when there are sufficient indicia of incompetence to give objectively

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reasonable counsel reason to doubt defendant’s competency, and there is a reasonable

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probability that the defendant would have been found incompetent to stand trial had the

18

issue been raised and fully considered.” Hibbler v. Benedetti, 693 F.3d 1140, 1149–50

19

(9th Cir. 2012) (quotations omitted). Dixon can make neither showing.

20

First, there were not sufficient indicia of incompetence to give Simpson reason to

21

doubt Dixon’s competence. The fact that Dixon had a distant history of mental health

22

problems was not in itself sufficient to show that he was incompetent to waive counsel.

23

See Hoffman v. Arave, 455 F.3d 926, 938 (9th Cir. 2006) (“We have held that those with

24

mental deficiencies are not necessarily incompetent to stand trial.”), vacated on other

25

grounds by Arave v. Hoffman, 552 U.S. 117, 117–19 (2008) (per curiam)); United States

26

v. Garza, 751 F.3d 1130, 1135–37 (9th Cir. 2014) (finding no need for competency

27

hearing where defendant was diagnosed with anxiety and dementia but his behavior, in

28

and out of court, was not erratic and there was no clear connection between any mental
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6
7
8
9
10
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disease and a failure on defendant’s part to understand the proceedings or assist in his
own defense); Boyde v. Brown, 404 F.3d 1159, 1166–67 (9th Cir. 2005) (finding inmate’s
“major depression” and “paranoid delusions” did not raise a doubt regarding his
competence to stand trial). Dixon was initially found incompetent to stand trial for the
1977 assault. Six weeks later, after hospitalization and treatment, he showed no signs of
mental illness and was found competent. Apart from these events thirty years ago, with
which the trial judge was already familiar, there was not a significant history of mental
illness that Simpson failed to bring to the court’s attention.
Finally, Dixon’s obsession with the NAU suppression motion was not so bizarre
as to suggest incompetence. “Criminal defendants often insist on asserting defenses with
little basis in the law, particularly where, as here, there is substantial evidence of their

12

guilt,” but “adherence to bizarre legal theories” does not imply incompetence. United

13

States v. Jonassen, 759 F.3d 653, 660 (7th Cir. 2014) (noting defendant’s “persistent

14

assertion of a sovereign-citizen defense”); see United States v. Kerr, 752 F.3d 206, 217-

15

18 (2d Cir.), as amended (June 18, 2014) (“Kerr’s obsession with his defensive theories,

16

his distrust of his attorneys, and his belligerent attitude were also not so bizarre as to

17

require the district court to question his competency for a second time.”). “[P]ersons of

18

unquestioned competence have espoused ludicrous legal positions,” United States v.

19

James, 328 F.3d 953, 955 (7th Cir. 2003), “but the articulation of unusual legal beliefs is

20

a far cry from incompetence.” United States v. Alden, 527 F.3d 653, 659–60 (7th Cir.

21

2008) (explaining that defendant’s “obsession with irrelevant issues and his paranoia and

22

distrust of the criminal justice system” did not imply mental shortcomings requiring a

23

competence hearing).

24

Apart from the NAU suppression issue, Dixon has failed to identify an instance in

25

which he behaved irrationally, appeared not to understand the proceedings, or did not

26

communicate effectively with counsel. See Alexander v. Dugger, 841 F.2d 371, 375 (11th

27

Cir. 1988) (rejecting ineffective assistance of counsel claim when defendant made only

28

“conclusory allegations that he was incompetent to stand trial” and gave “no concrete
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5
6
7
8
9
10
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examples suggesting that at the time of his trial he did not have the ability to consult with
his lawyer or he did not understand the proceedings against him.”); Stanley, 633 F.3d at
863 (finding that state court reasonably rejected prisoner’s ineffective assistance claim
where the record contained “insufficient evidence of [the prisoner’s] incompetence
during the guilt phase to justify a conclusion that defense counsel were ineffective in
failing to move for competency proceedings.”).
Second, there was not a reasonable probability that Dixon would have been found
incompetent even if counsel had raised the issue. Hibbler, 693 F.3d at 1149–50. As an
initial matter, Dixon was adamant that he did not want to be evaluated for competency.
See Douglas v. Woodford, 316 F.3d 1079, 1086 (9th Cir. 2003) (explaining that counsel
“did not err by failing to obtain further testing, as [counsel] could not secure such testing

12

without his client’s cooperation”). In addition, Judge Klein was familiar with Dixon’s

13

past mental health issues, but having interacted with Dixon through several years of court

14

proceedings, he observed no indications of incompetence. Under these circumstances, it

15

is difficult to see how a competency examination would have been ordered even if

16

Simpson had requested one. As discussed below, there is no reasonable probability that

17

Dixon would have been found incompetent if he had undergone an evaluation.

18

The PCR court’s rejection of this claim satisfies neither § 2254(d)(1) nor (2). A

19

“reasonable argument” could be made that Simpson “satisfied Strickland’s deferential

20

standard.” Richter, 566 U.S. at 105; see Hibbler, 693 F.3d at 1150. The PCR court’s

21

factual determinations were not objectively unreasonable in light of the state court record.

22

See Taylor, 366 F.3d at 1000; Hibbler, 693 F.3d at 1149. Claim 1 is therefore denied.

23

2.

Claims 2 and 3

24

In Claim 2, Dixon alleges that that he was tried and sentenced while legally

25

incompetent. (Doc. 27 at 54.) Claim 3 consists of two allegations: that the trial court (A)

26

“erred when it found [Dixon] competent to waive counsel and represent himself” and (B)

27

“abdicated its obligation . . . to ascertain whether Dixon was competent to stand trial,

28

despite the fact that considerable evidence was before the court he was not.” (Id. at 61,
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5
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7
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9
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11
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66.) Dixon did not raise Claims 2 or 3(B) in state court. He raised Claim 3(A), which the
PCR court denied on the merits. (ME 7/2/13 at 7.)
a.

Background

On March 16, 2006, the trial court conducted a hearing on Dixon’s request to
waive counsel. The court first inquired why Dixon wished to represent himself. (RT
3/16/03 at 3−4.) Dixon explained that it involved a disagreement about a motion counsel
did not feel she could legally or ethically file. (Id. at 4.)
The trial court warned Dixon that if he represented himself he would be held to the
standards of a lawyer. (Id.) The court also noted there would be a significant delay in
beginning the trial. (Id.) Dixon acknowledged there were over 3,000 documents that he
needed to review. (Id.) He would also have to read the rules of criminal procedure and
find a textbook on trial procedure and preparation. (Id. at 6.)

13

The court nevertheless explained that in setting a trial date it would have to

14

balance competing interests, including those of the victims and the State, and might

15

ultimately select a date when Dixon did not feel he was ready. (Id.) Dixon stated he was

16

aware of that, but indicated that he was hindered in preparing for trial by the inefficiency

17

of Inmate Legal Services. (Id.) The court explained that Dixon would not be afforded

18

greater freedoms than other inmates and would not get everything he requested simply

19

because he represented himself. (Id. at 6−7.) Dixon stated that he understood. (Id. at 7.)

20

Dixon told the court he had fourteen years of education, that he read and

21

understood the English language, and that the only medication he had taken in the last

22

twenty-four hours were “[a]sprin, ibuprofen, and that’s it.” (Id. at 7−8.) He told the court

23

that he had not taken any psychotropic medications or anything that prevented him from

24

understanding what the court was stating. (Id. at 8.) When asked if he had ever been in a

25

Rule 11 proceeding for mental problems, Dixon responded that he had, “way back in

26

1977.” (Id.) The court inquired further:

27
28

THE COURT: Okay. But since then have you had any kind of mental
problems that would prevent you from having a trial, that you’re aware of?
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1

THE DEFENDANT: No, I’m not.

2

THE COURT: Okay. And let me ask counsel if you know of any in your
evaluation that would make this court’s decision as to whether to grant the
waiver of right to counsel in jeopardy.

3
4
5

[SIMPSON]: Not that I’m aware of.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

(Id.)
The court told Dixon that “an attorney can be of great benefit to you” and there
were “some significant dangers and disadvantages to representing yourself.” (Id. at 9.)
Dixon responded “I’m aware that a fool, a fool has himself for a client, yes.” (Id. at 10.)
The court responded, “Not that you’re a fool or anyone is a fool, but I have yet to
see someone represent himself in this court and fare better than I think he or she would
have done had they had a lawyer.” (Id.) Dixon understood that in choosing to represent
himself, he may have decreased his chance of success at trial. (Id.)
The court reiterated that Dixon had the right to an attorney who would represent
him at all critical stages of trial. (Id.) Dixon said he understood. (Id.) The court asked
Dixon whether he was aware that he was charged “with the most serious of crimes
imaginable.” (Id.) Dixon stated that he was. (Id.)
The court instructed the prosecutor to read the indictment to Dixon. (Id. at 11.)
Dixon stated that he understood the charges and potential sentences. (Id. at 11−12.)
Dixon also indicated that he understood that if he were allowed to represent
himself, he would have “sole responsibility for [his] defense, introducing witnesses,
doing investigation, doing legal research, filing and arguing motions, examining and
cross-examining witnesses, giving opening statement and final argument to the jury,” and
that because of his custody status he would have more difficulty investigating the case

25

than attorneys would. (Id. at 12−13.) The court again explained Dixon would be held to

26

the same standard as an attorney. (Id. at 13.) Dixon said he understood. (Id.) The court

27

explained that “this type of case is probably the most complex of all criminal cases”; that

28

the law is “complicated,” “unsettled,” and “constantly evolving”; that trying the case
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required knowledge of both case law and statutory authority; and that the trial would
involve numerous witnesses and exhibits. (Id. at 13−14.) Dixon stated that he was “aware
of all that.” (Id. at 14.)
Dixon was also aware that in a capital case two certified lawyers are typically
appointed to represent the defendant. (Id.) The court explained that if Dixon were given
advisory counsel, “their job is not to try your case” or “give you advice,” but to “assist
you as needed.” (Id.) Dixon acknowledged that if he represented himself, he “[bore] all
responsibilities.” (Id.)
Dixon understood that he could change his mind about self-representation “at any
time.” (Id. at 15.) He also understood that if he misbehaved or violated the rules, the court
could have a lawyer take over the case. (Id. at 15−16.)

12

When asked if he had any questions about anything he had discussed with the

13

court, Dixon replied “No, your Honor. I believe you’ll be fair and impartial in this case.”

14

(Id. at 16.) The court then gave Dixon time to read the written waiver. (Id.) Dixon read

15

the waiver, told the court he understood, and then signed it. (Id. at 17.)

16

The court gave Dixon’s counsel and the prosecutor the opportunity to make a

17

record. (Id.) Neither suggested there was any reason to doubt Dixon’s competency. (Id. at

18

17–18.)

19

Based upon Dixon’s answers, the avowals of counsel, and the totality of the

20

circumstances, the trial court expressly found that Dixon had made a knowing,

21

intelligent, and voluntary waiver of his right to counsel and was competent to represent

22

himself. (Id. at 21−22.)

23

b.

24

With respect to Claim 3(A), the PCR court, citing Godinez, 509 U.S. at 399–400,

25

and Dusky, 362 U.S. at 402, found that Petitioner was competent and that his waiver of

26

counsel was “knowing, voluntary, and intelligent.” (Id.) This decision was neither

27

contrary to nor an unreasonable application of clearly established federal law, nor was it

28

based on an unreasonable determination of the facts.

Analysis: Claim 3(A)

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5
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7
8
9
10
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The PCR court stated that under Godinez “the competency standard for waiving
the right to counsel is the same as the competency standard for standing trial.” (Id.)
Dixon asserts that the standards for competency to be tried and competency for selfrepresentation diverged with the Supreme Court’s opinion in Indiana v. Edwards, 554
U.S. 164 (2008). In Edwards, the Court held that the Constitution “permits States to insist
upon representation by counsel for those competent enough to stand trial . . . but who still
suffer from severe mental illness to the point where they are not competent to conduct
trial proceedings by themselves.” 554 U.S. at 178. The Court explained that a defendant
who is otherwise able to satisfy the Dusky competence standard may nevertheless be
“unable to carry out the basic tasks needed to present his own defense without the help of
counsel.” Id. at 175–76. Accordingly, a court is permitted, but not required, to appoint

12

counsel for a “gray area” defendant. Edwards, 554 U.S. at 175. The Ninth Circuit has

13

interpreted Edwards as holding that “[t]he standard for a defendant’s mental competence

14

to stand trial is now different from the standard for a defendant’s mental competence to

15

represent himself or herself at trial.” United States v. Ferguson, 560 F.3d 1060, 1068 (9th

16

Cir. 2009).

17

While noting that a “higher standard” applies to assessing a defendant’s

18

competency for self-representation, compared to the competency to stand trial or to waive

19

counsel, the Court in Edwards expressly declined to adopt a “specific standard” to

20

determine when a defendant lacks the mental capacity to defend himself. 554 U.S. at

21

172–76, 178. The Court noted that the trial judge “will often prove best able to make

22

more fine-tuned mental capacity decisions, tailored to the individualized circumstances of

23

a particular defendant.” Id. at 176.

24

Even under a “higher” standard, Dixon was competent to represent himself. As the

25

PCR court made clear, Dixon was able to carry out the basic tasks needed to present his

26

own defense. His behavior at trial was not “decidedly bizarre,” nor did he do “absolutely

27

nothing” to defend himself at trial and sentencing. Ferguson, 560 F.3d 1068–69

28

(remanding to determine applicability of Edwards). Instead, Dixon was clearly “aware of
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what was occurring” and “participated extensively throughout his trial.” United States v.
Thompson, 587 F.3d 1165, 1173 (9th Cir. 2009); see United States v. Johnson, 610 F.3d
1138, 1146 (9th Cir. 2010) (finding district court did not err in concluding that defendants
were competent to represent themselves, noting the “defendants gave opening statements,
testified, examined and cross-examined witnesses, challenged jury instructions, and
delivered closing arguments of significant length”).
In arguing that the trial court erred in finding he was competent to represent
himself, Dixon again relies on the 1977 Rule 11 reports and NGRI verdict and his
persistent pursuit of the NAU suppression issue. As already discussed, however, Judge
Klein was aware of these issues at the time he found Dixon competent to waive counsel
and represent himself.

12

Dixon also cites Dr. Toma’s report from 2012, which opined that Dixon “was

13

clearly not capable of representing himself and his competence to proceed should have

14

been questioned.” (PCR Pet., App. A. at 24.) Dr. Toma’s opinion was formed four years

15

after Dixon’s trial. Judge Klein, who observed Dixon while presiding over pretrial and

16

trial proceedings, “was in the best position to observe [Dixon’s] behavior and to make the

17

determination that [he] had the mental capacity to represent [himself].” Johnson, 610

18

F.3d at 1146; see Edwards, 554 U.S. at 177.

19

In his decision denying this claim during the PCR proceedings, the court noted

20

that Dixon displayed no signs that he was not competent to represent himself. Judge

21

Klein explained:

22
23
24
25
26
27
28

[T]his Court had the opportunity to read the Defendant’s motions, listen to
his arguments, and to observe his behavior and demeanor at numerous pro
se appearances during the pretrial and trial phases. Based on those
observations, this Court concluded that Defendant’s thoughts and actions
demonstrated coherent and rational behavior.
Defendant, concerned about whether he could represent himself,
requested multiple continuances, subsequently asked for hybrid
representation during the trial when complicated DNA evidence was being
presented, and expressed often on the record his frustration with jail
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7
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10
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facilities, access to records and research, and communications with
advisory counsel. All of these actions demonstrated appropriate and logical
conduct on Defendant’s part.
The Court’s observation about Defendant’s competence over a 2½
year time period, including the nearly 3 months of concentrated trial time,
have been borne out over the intervening years as Defendant, to the Court’s
knowledge, has not been placed on medication, there is no evidence that he
suffered from delusions (other than comments Defendant made during a
neuropsychological evaluation more than four years post-trial), there was
no psychiatric intervention, and he was able to write lucid pleadings.
(ME 7/2/13 at 6–7.)
On habeas review, a state court’s determination that the petitioner was competent
is entitled to a presumption of correctness unless that determination is rebutted by clear

12

and convincing evidence. See 28 U.S.C. § 2254(e)(1); Torres v. Prunty, 223 F.3d 1103,

13

1110 n. 6 (9th Cir. 2000). In Demonsthenes v. Baal, 495 U.S. 731, 735 (1990), the

14

Supreme Court reiterated that a state court’s conclusion regarding a defendant’s

15

competency is a factual determination that is entitled to a presumption of correctness. Id.

16

(citing Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam)); Evans v. Raines, 800

17

F.2d 884, 887 (9th Cir. 1986).

18

Based on the facts discussed above, and supported by this Court’s review of the

19

state court record, including the pretrial and trial transcripts, the PCR court’s

20

determination that Dixon was competent to waive counsel was not an unreasonable

21

determination of the facts pursuant to § 2254(d)(2), Maggio v. Fulford, 462 U.S. at 117,

22

nor was it contrary to or an unreasonable application of clearly established federal law

23

under § 2254(d)(1). Claim 3(A) is denied.

24

c.

25

As noted, Dixon did not raise these claims in state court, so they are procedurally

26

defaulted. Dixon asserts that under Martinez v. Ryan, 132 S. Ct. 1309 (2012), the

27

ineffective assistance of his PCR counsel constitutes cause and prejudice to excuse the

28

default. Dixon is incorrect. Martinez held that “[i]nadequate assistance of counsel at

Analysis: Claims 2 and 3(B)

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3
4
5
6
7
8
9
10
11

initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315
(emphasis added). Martinez applies only to ineffective assistance of trial or, in the Ninth
Circuit, appellate counsel. It has not been expanded to other types of claims. Pizzuto v.
Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (explaining that the Ninth Circuit has “not
allowed petitioners to substantially expand the scope of Martinez beyond the
circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th
Cir. 2013) (denying petitioner’s claim that Martinez permitted the resuscitation of a
procedurally defaulted Brady claim, holding that only the Supreme Court could expand
the application of Martinez to other areas).
Because Claims 2 and 3(B) do not allege ineffective assistance of trial or appellate

12

counsel, their default cannot be excused under Martinez. Because Dixon does not show

13

cause for his default of either claim in state court, or a fundamental miscarriage of justice,

14

the claims are barred from federal review. The claims are also meritless because, as

15

discussed above, the trial court adequately addressed the issue of Dixon’s competence

16

and reasonably determined that he was competent to stand trial and represent himself.

17

3.

18

Dixon alleges that his Sixth and Fourteenth Amendment rights were violated when

19

advisory counsel failed to raise the issue of his competency with the trial court. (Doc. 27

20

at 69.) The PCR court rejected this claim on the merits. (ME 7/2/13 at 8–9.) The court

21

explained that Dixon, having voluntarily and intelligently waived counsel, had “no

22

constitutional right to challenge the advice or services provided by advisory counsel.” (Id.

23

at 8.) The court further determined that even if such a right existed, there was no

24

ineffective assistance of advisory counsel because the court was already aware of Dixon’s

25

mental health issues. (Id. at 9.) This decision does not entitle Dixon to relief under §

26

2254(d).

Claim 4

27

After the trial court found Dixon competent and accepted his waiver of counsel, it

28

appointed Simpson to serve as advisory counsel. After Simpson withdrew, the court
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3
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5
6
7
8
9
10
11

appointed attorneys Kenneth Countryman and Nathaniel Carr III as advisory counsel.
They did not raise the issue of Dixon’s competence.
Once a court has determined that a defendant’s waiver of his right to counsel is
knowing and intelligent, it may appoint standby or “advisory” counsel to assist the
defendant without infringing on his right to self-representation. McKaskle v. Wiggins, 465
U.S. 168, 176–77 (1984). It is well established, however, that “a defendant who waives
his right to counsel does not have a right to advisory counsel.” United States v. Moreland,
622 F.3d 1147, 1155 (9th Cir. 2010); see United States v. Mendez-Sanchez, 563 F.3d 935,
947 (9th Cir. 2009) (noting that “under our established precedent there is no right to the
assistance of standby counsel”); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)
(“Certainly there is no Supreme Court precedent clearly establishing such a right.”).

12

Accordingly, if a defendant elects to waive counsel, but the court nonetheless appoints

13

stand-by or advisory counsel, there is no constitutional right to effective assistance from

14

waived counsel. See Wilson v. Parker, 515 F.3d 682, 697 (6th Cir. 2008) (“Logically, a

15

defendant cannot waive his right to counsel and then complain about the quality of his

16

own defense.”). In Simpson, for example, the petitioner argued that stand-by counsel

17

performed ineffectively by failing to assist him in the mitigation phase of his capital

18

sentencing. 458 F.3d at 597. The Seventh Circuit affirmed the district court’s denial of

19

the claim, explaining that “the inadequacy of standby counsel’s performance . . . cannot

20

give rise to an ineffective assistance of counsel claim under the Sixth Amendment.” Id.

21

Dixon nonetheless contends that one of the roles of advisory counsel is to monitor

22

the defendant’s competence and step in if he becomes incompetent to waive counsel.

23

Dixon alleges that Countryman and Carr performed ineffectively in that role. As

24

described above, however, there were no significant indications that Dixon was

25

incompetent, nor were there issues concerning his mental health of which the judge was

26

unaware. Advisory counsel did not perform ineffectively in failing to raise the issue of

27

Dixon’s competence.

28
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3
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5
6
7
8
9
10
11
12
13
14
15

The PCR court’s denial of this claim was neither contrary to nor an unreasonable
application of clearly established federal law, nor was it based on an unreasonable
determination of the facts. Claim 4 is denied.
B.

Claim 5
Dixon alleges that the trial court violated the Ex Post Facto Clause and Dixon’s

right to due process and a fair trial when it retroactively applied law that permitted the
victim of the 1985 rape to testify at trial. (Doc. 27 at 78.)
In 1985, Dixon raped a 21-year-old college student at knifepoint. Following an
evidentiary hearing, the court allowed the victim to testify at Dixon’s murder trial
pursuant to Rule 404(c) of the Arizona Rules of Evidence, which provides:
In a criminal case in which a defendant is charged with having committed a
sexual offense, or a civil case in which a claim is predicated on a party’s
alleged commission of a sexual offense, evidence of other crimes, wrongs,
or acts may be admitted by the court if relevant to show that the defendant
had a character trait giving rise to an aberrant sexual propensity to commit
the offense charged.

16

In 2005, the Rule was amended to expand the definition of “sexual offense” to

17

include first-degree felony murder where the predicate felony involved a sexual offense.

18

Ariz. R. Evid. 404(c)(4). This amendment made the Rule applicable to Dixon’s case,

19

despite the fact that the rape charge had been dismissed. Dixon argues that applying the

20

amended rule resulted in an ex post facto violation.

21
22
23
24
25
26
27
28

In denying Dixon’s motion to preclude the victim’s testimony, the trial court held
that because Rule 404(c) was a rule of evidence, it applied retroactively to Dixon’s case.
The court explained:
It is axiomatic that evidentiary rule changes do not constitute substantive
changes in the law such that they can be applied prospectively only. Rather,
they generally are viewed as procedural changes that apply to all
proceedings as of the date of the change. Accordingly, the amendment to
rule 404(c)(4) is applicable to this case. See, State v. Steelman, 120 Ariz.
301, 585 P.2d 1213 (1978), where the Arizona Supreme Court held that
constitutional prohibitions ex post facto do not apply to changes in rules of
evidence, whether statutory or court-made.
- 24 -

1
2

(ROA 128 at 2.)

3

Dixon did not raise this claim on appeal. Although it is procedurally defaulted,

4

Respondents ask the Court to dismiss the claim pursuant to 28 U.S.C. § 2254(b)(2) (“An

5

application for a writ of habeas corpus may be denied on the merits, notwithstanding the

6

failure of the applicant to exhaust the remedies available in the courts of the State.”). The

7

Court agrees that the claim can be denied as “plainly meritless.” Rhines v. Weber, 544

8

U.S. 269, 277 (2005).

9

The Ex Post Facto Clause provides that “no State shall . . . pass any . . . ex post

10

facto Law.” U.S. Const. art. I, § 10, cl. 1. The Clause prohibits the legislative enactment

11

of any law that “changes the punishment, and inflicts a greater punishment, than the law

12

annexed to the crime, when committed.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001)

13

(quoting Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)); see Schroeder v. Tilton, 493

14

F.3d 1083, 1087 (9th Cir. 2007) (explaining clause prohibits “states from enacting laws

15

that criminalize an act already performed”). “When examining a rule of evidence to

16

determine if it violates this prohibition, courts examine whether the evidentiary rule

17

‘affect[s] the quantum of evidence sufficient to convict’ the defendant.” Doe v. Busby,

18

661 F.3d 1001, 1023 (9th Cir. 2011) (quoting Schroeder, 493 F.3d at 1088); see Carmell

19

v. Texas, 529 U.S. 513, 530 (2000).
Applying the amended Rule 404(c) at Dixon’s trial was not an ex post facto

20
21
22
23
24
25
26
27
28

violation. The expanded definition of sexual offense “merely permitted the admission of
a type of evidence that was previously excluded for the purpose of showing propensity.”
Id. (finding no ex post facto violation where state court retroactively applied rule
allowing evidence of prior domestic abuse). The amended Rule “does not alter the
quantum of evidence needed to convict a defendant.” Id. Therefore, the use of the
evidence at Dixon’s trial did not violate the Ex Post Facto Clause. Claim 5 is denied as
plainly meritless.
....
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3
4
5
6
7
8
9
10
11

C.

Claim 6
Dixon alleges that his Sixth and Fourteenth Amendment rights were violated when

the trial court ordered him to conduct his trial with a leg restraint and stun belt without
conducting the proper inquiry to determine the necessity of such restraints. (Doc. 27 at
98.) The Arizona Supreme Court rejected the claim on direct appeal.
1.

Facts

At a pretrial conference the court directed Dixon not to approach the bench during
trial while the jury was in the courtroom. The court explained that Dixon would be
prejudiced if the jury saw him “walking in a very stilted fashion” because it was
“possible some intelligent juror could figure out you’re being shackled.” (RT 11/01/07 at
37.) The court further explained: “You will have leg braces and also a stun belt on. That’s

12

for security purposes. The leg braces are a common customary practice for all in-custody

13

defendants when they are dressed out.” (Id. at 37.)

14

Dixon objected to the court’s ruling, arguing that wearing the restraints “severely

15

hampers my ability to defend myself” by limiting his “body language.” (Id. at 39.) He

16

asked the court to consider eliminating the leg brace since he was also wearing a stun

17

belt. The court responded: “No. Not going to happen. That’s jail policy. . . . [Y]ou have to

18

understand there are security policies for all in-custody defendants who dress out in

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civilian clothes. And I’m not making an exception for you.” (Id. at 40–41.)

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At a subsequent pretrial conference, Dixon again asked the court to remove the leg
brace. (RT 11/13/07 at 10.) The court repeated its view of the issue:
That’s a jail security issue and I have told you this before. You’re not being
treated any differently than any other defendant who comes to this court
who is in custody but dressed out in civilian clothes. You’re not being
given different treatment at all. That’s a jail policy. It’s also security policy.
You’re on trial for extremely serious crimes. The Court needs to be
concerned that you not try to escape or run, and for those reasons, all incustody defendants who are dressed out are in leg braces.
(Id. at 10–11.)
In a written motion, Dixon argued that having to remain seated would impede his
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efforts to communicate with the jury using “the spoken word accompanied by positive
body language.” (ROA 257 at 3.) The court ultimately ruled that Dixon could approach
the podium but warned him he was doing so despite the possibility that the jury could
draw negative inferences. (RT 11/13/07 at 11.) The court reaffirmed its ruling on leg
braces, again citing jail policy. (RT 11/14/08 at 3.) The court repeated that “[e]very incustody defendant who is dressed out in this court for trial, no matter what kind of trial,
from a capital trial to a class 6 felony, does wear leg braces under their clothes. . . . [s]o
that is a policy, and I’m simply choosing to treat you the same way.” (Id. at 4.)
As the Arizona Supreme Court noted, the trial court “repeatedly took steps to
prevent the jury from seeing the leg brace and stun belt.” Dixon, 226 Ariz. at 551, 250
P.3d at 1180. The court arranged for Dixon to be standing at the podium when the jury

12

entered the courtroom and reminded him outside the jury’s presence not to allow the jury

13

to see him walking. (RT 1/24/08 at 21.) The court also told Dixon several times not to

14

turn his back to the jury and bend over, because doing so might show the outline of the

15

stun belt under his shirt. (Id.; RT 12/17/07 at 16.)

16

2.

17

On direct appeal, Dixon argued that the trial court’s requirement that he wear a

18

stun belt and a leg brace violated his right to a fair trial under Deck v. Missouri, 544 U.S.

19

622 (2005), which holds that the Due Process Clause forbids the routine use of physical

20

restraints visible to the jury. The Arizona Supreme Court rejected Dixon’s arguments.

21

Dixon, 226 Ariz. at 552, 250 P.3d at 1181. Dixon alleges that the court unreasonably

22

applied Supreme Court precedent, that it unreasonably determined the facts in light of the

23

record, and that the “shackling” error had a substantial influence on the verdict. (Doc. 27

24

at 108–10.)

Analysis

25

The Arizona Supreme Court recognized that the trial court erred by citing only jail

26

policy as the justification for the restraints and failing to make a particularized finding of

27

the need for security measures. Dixon, 226 Ariz. at 552, 250 P.3d at 1181. It reiterated

28

that “judges should not simply defer to jail policy in ordering restraints of defendants.
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Rather, they should determine on a case-by-case basis whether security measures are
required as to the particular defendant before them.” Id. at 551–52, 250 P.3d at 1180–81.
Accordingly, “[b]efore authorizing visible restraints, the trial court must make a ‘case
specific’ determination reflecting ‘particular concerns, say, special security needs or
escape risks, related to the defendant on trial.’” Id. at 551, 250 P.3d at 1180 (quoting
Deck, 544 U.S. at 633.)
With respect to the leg braces, the court found no violation of Deck because the
braces were not visible. Id. at 552, 250 P.3d at 1181. The court noted that “the reported
decisions correctly treat a leg brace worn under clothing as not visible in the absence of
evidence to the contrary. There is no evidence here that the jury either saw the brace or
inferred that Dixon wore one.” Id. In reviewing the stun belt issue for fundamental error,
the court again found that Dixon failed to show the belt was visible to the jury.7 Id.

13
14

Finally, the court found that even if the restraints were visible, the error was
harmless given the DNA evidence and the circumstances of the murder:

15

To conclude that Dixon had not committed the murder, the jury would have
had to accept that Deana agreed, in the ninety minutes between the time she
left the bar and was found dead, to have had sex with Dixon, apparently a
complete stranger, and that after Dixon left her apartment, another person
entered the apartment, strangled and stabbed her.

16
17
18
19

Id.

20

Dixon contends that the Arizona Supreme Court’s rejection of this claim “was

21

based on an inaccurate recitation of the facts and an unreasonable application of federal

22

law.” (Doc. 27 at 107.) Dixon alleges that the court erred by finding that the restraints

23

were not seen by the jury. (Id. at 108.) He states that “[t]hroughout trial, both the stun belt

24

and the leg brace were visible to the jury.” (Id. 102.) As Respondents note, however, in

25

support of this statement Dixon asserts only that “[o]n numerous occasions, the court

26
27
28

7

Because Dixon objected to wearing the leg brace, but never objected to the stun
belt, the Arizona Supreme Court analyzed the issue under the fundamental error standard
of review. Id. at 551, 250 P.3d at 1180.
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noted that the stun belt was visible to the jury.” (Id.) (emphasis added). Dixon does not
contend that the jurors actually saw the leg brace.
The Court also agrees with Respondents that “the passages Dixon cites as
supporting the jurors seeing the stun belt, do not establish that the jurors actually
recognized the stun belt as a restraining device.” (Doc. 36 at 50.) Instead, they show only
that the court was aware that the outline of the belt could become visible to jurors from
certain angles:
THE COURT: Would you tell Mr. Dixon to not turn his back to the jury
because you can see the outline of the stun belt, especially when he bends
over? It’s one thing to have his back to you guys, but I just noticed him
bending over and he was turning and I could see it. I don’t think the jury
could, but the more he turns the outline is visible.
So if he wants to look for documents, which is fine, don’t do it with
his back turned to them while he’s bending over.
MR. COUNTRYMAN: Okay. I told him that three or four times during the
course of this trial, just to make sure he does not move round, because like
the last time we were here, his shirt was a little small. So I’ve told him that
a couple of times. I’ll tell him again.
....
THE COURT: Mr. Dixon, one of the things I want to tell you, I mentioned
to your advisory counsel during the break, when you turn your back to the
jury and bend over, the outline of the stun belt is easily seen.
You need to be aware of that because, although I don’t think the jury
knows what it is, I don’t want them to start questioning.

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So if you want to speak to your lawyers, do it in a way that your
back is not facing the jurors and you are bending over so that your shirt
tightens up. How you accomplish that, I don’t know, but I’m concerned for
you about that. So just be aware of it.

26

(RT 12/17/06 at 16, 119–20). Later in the trial the court told advisory counsel that “when

27

[Dixon] needs to consult with you guys, he should go around to where Mr. Carr is sitting

28

and turn his back to the wall. Every now and then, he will go around to where you are
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sitting at, Mr. Countryman, turn his back to the jury, and his stun belt is readily visible.”
(RT 1/7/08 at 34.)
Based on these passages, the Arizona Supreme Court found that “[a]lthough the
trial judge, in warning Dixon not to bend over or turn his back to the jury, speculated that
jurors might be able to see the outline of the belt beneath Dixon’s clothing, Dixon has not
established that the jury actually saw the belt or inferred its presence.” Dixon, 226 Ariz.
at 552, 250 P.3d at 1181. This is a reasonable determination of the facts under §
2254(d)(2). See Wood, 558 U.S. at 301 (explaining that a “state-court factual
determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance”); Rice, 546 U.S. at 341–42; Hurles,
752 F.3d at 778.

12

Dixon also argues that the court unreasonably found that he was not prejudiced by

13

the use of the restraints. (Doc. 27 at 108–110.) The Court disagrees. “To determine

14

whether the imposition of physical restraints constitutes prejudicial error, we have

15

considered the appearance and visibility of the restraining device, the nature of the crime

16

with which the defendant was charged and the strength of the state’s evidence against the

17

defendant.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008); see Dyas v. Poole,

18

317 F.3d 934, 937 (9th Cir. 2003) (per curiam) Here, the restraints, if they were apparent

19

at all, were under Dixon’s clothing and therefore unobtrusive and seen only in outline.

20

See id. (finding that a leg brace worn by defendant, possibly outside his pant leg, was

21

“not as visually obtrusive or prejudicial a restraining device as handcuffs, leg irons, waist

22

chains or gags”). In addition, while the fact that Dixon was charged with a violent crime

23

increased the risk of prejudice, that concern was “mitigated” because the state’s evidence

24

against him was “overwhelming.” Id.

25

Dixon has not shown that wearing the leg brace and stun belt had a “substantial

26

and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v.

27

Abrahamson, 507 U.S. 619 (1993). The Arizona Supreme Court did not unreasonably

28

apply federal law in finding no prejudice. Claim 6 is denied.
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D.

Claim 7
Petitioner alleges that his Sixth and Fourteenth Amendment rights to confront

witnesses against him were violated when a medical examiner who did not perform the
autopsy testified at trial. (Doc. 27 at 110.)
Dr. Heinz Karnitschnig, the Maricopa County medical examiner at the time of the
murder, conducted the autopsy and prepared a report. He did not testify at Dixon’s trial.
Instead, Dr. Philip Keen, who had more recently served as the medical examiner, testified
based on his review of the autopsy report and photographs. Neither the report nor the
photographs were admitted into evidence.
Citing Crawford v. Washington, 541 U.S. 36 (2004), Dixon argued on appeal that
Dr. Keen’s testimony violated the Sixth Amendment’s Confrontation Clause. The
Arizona Supreme Court denied the claim:
Because the State does not argue to the contrary, we assume
arguendo that the autopsy report itself was testimonial hearsay. But see
United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008) (autopsy
reports not testimonial hearsay under Crawford ); United States v. Feliz,
467 F.3d 227, 230 (2d Cir. 2006) (same). But that assumption avails Dixon
not at all, because the autopsy report was not admitted into evidence.
Rather, Dixon argues that Dr. Keen’s testimony, which relied on the
objective data in the report, was testimonial hearsay and thus violated the
Confrontation Clause.
We have previously rejected this very argument. Our cases teach that
a testifying medical examiner may, consistent with the Confrontation
Clause, rely on information in autopsy reports prepared by others as long as
he forms his own conclusions.
Dr. Keen’s testimony is indistinguishable from that upheld in our
prior cases. The medical examiner offered his independent conclusions,
relying on the factual findings of the prior autopsy. He neither parroted the
report nor recited Dr. Karnitschnig’s opinions.
Dixon, 226 Ariz. at 553, 250 P.3d at 1182 (citations omitted).
Dixon alleges that this ruling was based on an unreasonable finding of fact and an
unreasonable application of federal law. (Doc. 27 at 110.) The Court disagrees.
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The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” Before
Crawford, the Supreme Court held that the Confrontation Clause did not bar the
admission of an out-of-court statement that fell within a firmly rooted exception to the
hearsay rule. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Crawford, however, the
Court offered a new interpretation of the confrontation right, holding that “[t]estimonial
statements of witnesses absent from trial [can be] admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
541 U.S. at 59; see Williams v. Illinois, 132 S. Ct. 2221, 2232 (2012). In subsequent cases
the Supreme Court, applying Crawford, held that scientific reports were testimonial in
nature and were inadmissible as substantive evidence against the defendant unless the

12

analyst who prepared the report was subject to confrontation. See Melendez-Diaz-v.

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Massachusetts, 557 U.S. 305 (2009) (certificate of analysis identifying substance as

14

cocaine); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (forensic report certifying

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blood-alcohol level).

16

Petitioner argues that the state courts unreasonably applied Crawford, Melendez-

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Diaz, and Bullcoming in denying this claim. The Court disagrees. There is no clearly

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established federal law holding that an autopsy report is testimonial in nature. As the First

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Circuit observed in the wake of the rulings in Melendez-Diaz and Bullcoming, “even

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now, it is uncertain whether, under its primary purpose test, the Supreme Court would

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classify autopsy reports as testimonial.” Nardi v. Pepe, 662 F.3d 107, 112 (1st Cir. 2011);

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see Hensley v. Roden, 755 F.3d 724, 732–35 (1st Cir. 2014) (noting circuit split on

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whether autopsy reports are testimonial)

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Cases from the Ninth Circuit reinforce this Court’s conclusion that the state courts

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did not violate clearly established federal law in denying Dixon’s Confrontation Clause

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claims. See Flournoy v. Small, 681 F.3d 1000 (9th Cir. 2012); McNeiece v. Lattimore,

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501 Fed.Appx. 634 (9th Cir. 2012). In Flournoy, the Ninth Circuit considered a claim in

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which a forensic analyst testified as an expert based on the work and conclusions of
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another analyst. The testifying expert performed a technical review of the unavailable
analyst’s work and gave an independent conclusion about the test results. 681 F.3d at
1002. Noting that Melendez-Diaz “held only that a lab report could not be admitted
without a witness appearing to testify in person,” the Ninth Circuit discussed the effect of
the holding in Bullcoming. Id. at 1005. The court observed that:
Justice Sotomayor provided the decisive fifth vote for the majority in
Bullcoming. In her separate opinion, she specifically identified
Confrontation Clause questions that in her view remained unanswered by
the Court’s holdings in that 2011 case, let alone by Crawford. These
unresolved areas included the treatment of experts testifying to their
opinions based on reports not admitted into evidence, as well as the degree
of proximity the testifying witness must have to the scientific test. . . . Both
of these open issues were relevant to Flournoy’s case. If those areas
remained unsolved as of 2011, it is impossible to conclude that the
California court’s conclusions in this case were contrary to clearly
established federal law at the time.

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Id.

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In this case, to the extent that any of the materials reviewed by Dr. Keen could
properly be characterized as testimonial, they were not admitted into evidence. Therefore,
as explained in Flournoy, a determination that Dr. Keen’s testimony did not violate the
Confrontation Clause was not an unreasonable application of clearly established federal
law.
In McNeiece v. Lattimore, the trial court admitted into evidence an autopsy report
showing a diagram of the victim’s body with descriptions of the bullet wounds. 501
Fed.Appx. at 636. The Ninth Circuit found that the state appellate court’s determination
that these excerpts were non-testimonial was not contrary to or an unreasonable
application of Crawford. Id. The trial court also allowed a pathologist who had not

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conducted the autopsy to testify about the diagrams and to offer his opinions based on the

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report and other evidence. Again, the Ninth Circuit held that the state court did not

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unreasonably apply clearly established federal law when it determined that the testimony

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did not violate the Confrontation Clause. Id. (citing Flournoy, 681 F.3d at 1004–05).
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The Supreme Court’s recent decision in Williams v. Illinois, 132 S. Ct. 2221
(2012), is also instructive on the state of clearly established federal law. In Williams, the
Court found no Confrontation Clause violation when an expert in a rape case expressed
an opinion based on a DNA profile produced by an outside laboratory. The Court
explained that when such an expert testifies, “the defendant has the opportunity to crossexamine the expert about any statements that are offered for their truth. Out-of-court
statements that are related by the expert solely for the purpose of explaining the
assumptions on which that opinion rests are not offered for their truth and thus fall
outside the scope of the Confrontation Clause.” Id. at 2228. As the Tenth Circuit
commented in United States v. Pablo, 696 F.3d 1280, 1293 (10th Cir. 2012), after
Williams, “the manner in which, and degree to which, an expert may merely rely upon,

12

and reference during her in-court expert testimony, the out-of-court testimonial

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conclusions in a lab report made by another person not called as a witness is a nuanced

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legal issue without clearly established bright line parameters.” See also United States v.

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Gomez, 725 F.3d 1121, 1129 (9th Cir. 2013).

16

Accordingly, the Arizona Supreme Court’s adjudication of Dixon’s confrontation

17

claim challenging Dr. Keen’s testimony was neither contrary to nor involved an

18

unreasonable application of clearly established federal law. See Knowles v. Mirzayance,

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556 U.S. 111, 122 (2009) (holding that “it is not ‘an unreasonable application of clearly

20

established Federal law’ for a state court to decline to apply a specific legal rule that has

21

not been squarely established by this Court”); Carey v. Musladin, 549 U.S. 70, 77 (2006)

22

(“Given the lack of holdings from this Court regarding” the claim, “it cannot be said that

23

the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”); Brewer v.

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Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly

25

established federal law relating to the legal issue the habeas petitioner raised in state

26

court, the state court’s decision cannot be contrary to or an unreasonable application of

27

clearly established federal law.”).

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Dixon also contends that the Arizona Supreme Court unreasonably found that
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“Keen’s testimony was his own” rather than simply a recitation of Dr. Karnischnig’s
autopsy findings. (Doc. 27 at 115.) The court found that Dr. Keen “offered his
independent conclusions, relying on the factual findings of the prior autopsy. He neither
parroted the report nor recited Dr. Karnitschnig’s opinions.” Dixon, 226 Ariz. at 553, 250
P.3d at 1172.
To challenge that finding, Dixon points to Dr. Keen’s testimony that Deana was
strangled both manually and with a ligature. (Doc. 27 at 116.) The prosecutor asked,
“Why do you say there’s more than a ligature by looking at [an autopsy photo]?” (RT
12/10/07 at 26.) Dr. Keen replied, “I don’t know that so much from looking at the photo.
I know that from the autopsy report.” (Id.) He then described the information from the
report that indicated manual strangulation, including the fact that the victim’s hyoid bone
was broken. (Id.)

13

The fact that Dr. Keen relied on more than just a photograph to reach his opinion

14

that Deana had been manually strangled does not suggest that he simply parroted Dr.

15

Karnischnig’s findings. Dixon’s arguments are not sufficient to overcome the

16

presumption of correctness that attaches to the Arizona Supreme Court’s determination

17

that Dr. Keen’s opinions were reached independently. See Wood, 558 U.S. at 301; Rice,

18

546 U.S. at 341–42. Claim 7 is denied.

19

E.

Claim 8

20

Dixon alleges that the trial court violated his Sixth and Fourteenth Amendment

21

rights by denying his motion for hybrid representation. (Doc. 27 at 117.) The Arizona

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Supreme Court rejected the claim on direct appeal.

23

As already discussed, before trial Dixon chose to represent himself. Later,

24

however, he requested that his advisory counsel cross-examine the State’s DNA experts.

25

The trial court denied this request for “hybrid representation,” stating that it was

26

impermissible and explaining to Dixon that he had a constitutional right to counsel and a

27

constitutional right to represent himself, but not a “constitutional right to avail yourself of

28

both avenues.” (RT 11/13/07 at 4.) The court informed Dixon that he could elect to have
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counsel represent him at any point in the trial, but would not be allowed to revert to selfrepresentation. (Id. at 4; RT 11/14/07 at 6.)
The Arizona Supreme Court held that the trial court did not abuse its discretion,
correctly observing that there is “no constitutional right to hybrid representation.” Dixon,
226 Ariz. at 553, 250 P.3d at 1182.
The state court’s rejection of this claim was neither contrary to nor an
unreasonable application of clearly established federal law. “A defendant has the right to
represent himself or herself pro se or to be represented by an attorney,” but “does not
have a constitutional right to ‘hybrid’ representation” at trial. United States v. Olano, 62
F.3d 1180, 1193 (9th Cir. 1995) (citing United States v. Kienenberger, 13 F.3d 1354,
1356 (9th Cir. 1994)); see McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (holding that

12

trial judge is not required to appoint hybrid counsel). A pro se defendant who has waived

13

his right to counsel “does not have a constitutional right to choreograph special

14

appearances by counsel.” McKaskle, 465 U.S. at 183.

15

Dixon asserts that the Arizona Supreme Court “failed to consider the specifics of

16

[his] situation”—namely, the importance and scientific complexity of the DNA evidence.

17

(Doc. 27 at 121.) However, the trial court did specifically consider Dixon’s request in the

18

context of the DNA evidence, explaining, “If you decide when it comes to DNA you

19

want them [advisory counsel] to represent you, you can do that, but then I’m not going to

20

let you switch back.” (11/14/07 at 7.) Dixon chose to proceed pro se.

21

Because there is no clearly established federal law requiring a trial court to permit

22

hybrid representation, and because the trial court offered to reappoint counsel for Dixon,8

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a fairminded jurist could find that the Arizona Supreme Court’s denial of this claim was

24

reasonable. Claim 8 is denied.

25

....

26
27
28

8

In John–Charles v. California, 646 F.3d 1243, 1249–50 (9th Cir. 2011), the
Ninth Circuit explained that no clearly established federal law exists requiring the
reappointment of counsel after a defendant’s initial waiver.
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F.

In Claim 9, Dixon alleges that the trial court violated his Eighth and Fourteenth
Amendment rights by denying him the opportunity to adequately develop relevant
mitigation evidence. (Doc. 27 at 122.) Dixon raised the claim on direct appeal. In Claim
10, Dixon alleges that standby counsel’s “contradictory and false representations to the
trial court and the court’s reliance on those representations violated Dixon’s right to
represent himself at sentencing and his due process right to a fair sentencing.” (Id. at
136.) Dixon did not raise this claim in state court.

9

1.

10
11

Claims 9 and 10

Background

Dixon was arraigned in January 2003. In April 2003, defense counsel informed the
court that Dixon’s mitigation specialist, Pamela Davis, would need a year to complete her

12

investigation. (RT 4/16/03.) In July 2003, the trial court ordered defense counsel to obtain

13

Dixon’s mental health records from the Arizona Department of Corrections. (ME

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7/18/03.) The court also ordered the disclosure of public records. (ME 7/30/03; see ME

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4/23/04.) In September 2003, the judge set the trial date for June 15, 2004. (ME 9/5/03.)

16

The court noted that defense counsel had received Dixon’s mental health records. (Id.)

17

Over the next three years Dixon sought, and the court granted, additional continuances.

18

During this period, the mitigation investigation proceeded.9 When Dixon chose to

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9

At a status conference in December 2003, Dixon’s counsel told the court that the
defense team was “moving ahead” with its investigation and that Ms. Davis, the
mitigation specialist, “has been working and has identified more people we need to talk
to. And she has interviewed a lot of people, and we are looking for additional records
which she has identified.” (RT 12/17/03 at 6.)
At a status conference in April 2004, defense counsel updated the court:
We have worked on this case. We have retained a mental health
expert. All the records that we have so far have been given to the expert and
the expert has reviewed them, and has told us additional things that we need
to see if we can find, and it was a lot of records.
We have interviewed people. We have obtained additional records,
and [sic] analyzing them right now.
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represent himself, a private mitigation specialist, Tyrone Mayberry, was appointed.
On November 6, 2007, a week before trial, the court held a status conference. At
the request of advisory counsel, the court asked Mayberry about the “current status” of
his investigation. (RT 11/06/07 at 11.) Mayberry stated they were “probably about 60
percent done with the mitigation. I got ahold of people, all the previous mitigation
people, previous attorneys, and got as much of the records as they still had. But it was
probably a small fraction. They were still missing quite a bit. . . . [W]e’re still . . . trying
to get as much as I can and get through it as fast as we can, but we’re still probably, at
best, 60 percent.” (Id.)
On November 8, 2007, Dixon filed a motion to continue the trial to the first week
of March. (ROA 254.) He asserted that the delay was necessary because there were forty

12

mitigation witnesses that still needed to be interviewed and because his mitigation

13

specialist “has proposed a psychological slant to mitigation defense that needs to be

14

considered.” (Id. at 5.)

15

Attached to the motion was a letter from Mayberry dated November 7, 2007,

16

addressing the status of the mitigation investigation. (Id., Ex. A.) Mayberry informed

17

Dixon that the “mitigation is not complete and there is no way ethically to proceed to trial

18

under the current circumstances.” (Id. at 1.) He wrote that he was appointed July 27,

19

2006; first met with Dixon in mid-August 2006; and first received the case file in

20

November 2006. (Id.) He stated that the records were unorganized and that his previous

21

estimate that it would take a year to prepare was based on his erroneous belief that all the

22

documents had been collected and all the experts appointed or interviewed. (Id.) He

23

explained that his workload included eight other cases. (Id.) He was assisted on Dixon’s

24

case by another mitigation specialist, Michelle McCloskey, who over a period of six

25

months had organized the files, determined what additional records were needed, and

26

completed a social history timeline. (Id.) Mayberry wrote that there were at least forty

27
28

(RT 4/16/04 at 14–15.) Counsel indicated that the social history investigation should be
completed by October 31, 2004. (Id. at 15.)
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witnesses who still needed to be interviewed; with respect to many of these witnesses, he
believed the assistance of social workers from the Navajo reservation would be required.
(Id.)
Finally, Mayberry indicated that he had recommended a number of experts to
advisory counsel, including a neuropsychologist, an expert in brain scans of sex
offenders, a cultural expert, a psychologist, and a prison expert. (Id. at 2.) He estimated
that the experts would need up to five months to prepare their reports. (Id.) The
psychologist, Dr. Gaughan, met with Dixon but did not testify on Dixon’s behalf. James
Aiken, the prison expert, was the only witness Dixon presented at the mitigation hearing.
Mayberry concluded that he did “not see any possible way you can go to trial at
this point with your mitigation incomplete. I will provide whatever assistance to you and

12

your advisory counsel as I can, but I believe your mitigation would be severely hindered

13

and ineffective at this stage.” (Id.)

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The trial court denied Dixon’s motion to continue the trial. (ROA 264; ME
11/19/07.) The court explained:
The Defendant was initially represented by the Public Defender,
who engaged in extensive investigation of the Defendant’s social and
mental health history with the assistance of its mitigation specialists and
investigators. The time needed to pursue this mitigation investigation
resulted in 5 defense requests for continuances beginning in October, 2003.
On May 12, 2006, private mitigation specialist Ty Mayberry and an
investigator were appointed to assist the Defendant and replace the previous
mitigation specialists and investigators (although Mayberry contends he
didn’t actually receive the file until late July, 2006). Shortly thereafter, Mr.
Mayberry hired a second mitigation specialist, Michelle McCloskey, to
assist him full-time due to his heavy caseload and to work exclusively on
the Defendant’s case.
After the Defendant began representing himself in early 2006,
another trial continuance was sought due to this change in status, and a firm
trial date was scheduled for October 18, 2006. Unfortunately, due to the
court’s calendar being congested with older capital cases that needed to be
tried first, the trial was again continued to June 25, 2007. On June 13, 2007
- 39 -

1

and July 3, 2007, the Defendant’s oral motions for continuances were
granted and the trial was rescheduled to September 13, 2007.

2
3

Over the vigorous objections of the victims, the court once again
granted Defendant’s request to continue the September 13, 2007, trial but
stated that the new trial date of November 13, 2007, was a date certain. . . .

4
5
6

While the court recognizes that an investigation into a defendant’s
life in order to assemble mitigation evidence takes time and that how much
time will depend upon the individual case, the Arizona Supreme Court has
determined that 18 months is a sufficient time. Current mitigation specialist
Mayberry concurs as he noted in a December 4, 2006 letter to defendant
that “normally it takes at least 18 months to do a thorough mitigation
package.” He further admitted to having a head start on this case because of
work done by previous mitigation specialists and concluded that mitigation
could possibly be completed “close to a year from now.”

7
8
9
10
11
12

The defense mitigation work-up in this case has been ongoing for
well over four years. Mr. Mayberry has had the case for 16 months, and it’s
anticipated that the mitigation phase of the trial will not begin, if at all, until
early January 2008, which would be approximately 18 months after he
received the Defendant’s file.

13
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(Id.)
At a status conference on January 16, 2008, the court and the parties discussed the
upcoming penalty phase of trial, including Dixon’s mitigation case. Dixon addressed the
court:
Your Honor, if I may, at the beginning of this, it was made known to
the Court it was going to be over like 20 witnesses that were going to be
called in if mitigation came about. And, of course, you know that I—we
started this trial and I made it on the record that I—my mitigation was not
prepared to go. And it’s still not prepared, and I feel that doing it halfway—
it’s not even halfway. So what I’m going to do, Your Honor, is I’m going
to—the only witness I propose to call is the—I guess the name is John
Akins [sic]. . . . He’s a former prison warden, and he is going to . . . present
mitigation evidence about my prison history. And that’s as far as I want to
go. I do not want to bring my family laundry into this. That part of my
mitigation is completely incomplete, and because of the age of this case, it
is wholly—I don’t even think—it wouldn’t help.
- 40 -

1
2
3

(RT 1/16/08 at 13–14.) In response to Dixon’s statements, the prosecutor made the
following record:
[T]he defendant says he does not want to use family history, and he gave a
number of reasons. I will buttress what he said by indicating that his family
history will only hurt him. Specifically, [a detective] has spoken to his
sister, who indicated that the defendant sexually assaulted her when she
was a teenager. The investigation involving the rape of Andrea Salazar
disclosed that those officers spoke to his brother, who did not have
anything positive to say about the defendant. . . [O]ur investigation has
indicated that in terms of family history, there really isn’t anything positive,
and, if anything, it could probably hurt the defendant.

4
5
6
7
8
9
10

(Id. at 15.)

11

On January 22, 2008, the day before the mitigation hearing, the court discussed

12

with Dixon and his advisory counsel the status of their mitigation case. First, the court

13

explained to Dixon that it “puts no limit on what you can present in mitigation. What you

14

choose to put on is up to you, but the Court has never limited it nor has the State sought

15

to limit your mitigation.” (RT 1/22/08 at 5.)

16

The court then informed Dixon of the nature of mitigating evidence and the

17

various categories of information that could be presented in support of a life sentence,

18

including a history of family instability, family tragedy, domestic violence, and parental

19

drug and alcohol abuse; a genetic propensity toward addiction or mental illness; low IQ

20

or learning disability; substance abuse; physical, sexual, or emotional abuse; neglect and

21

poverty; mental disorder; mercy; and the “catch-all” category of any relevant factor. (Id.

22

at 6.)

23

The court informed Dixon that the jury would be instructed to consider “whatever

24

mitigating factors they believe exist from any of the phases of trial.” (Id.) Finally, the

25

court explained that it was up to Dixon to decide what mitigation to present:

26
27
28

I will also note that this case is five years old, and that the mitigation
specialist was appointed close to 18 months ago. And I know that the
mitigation specialist has been working with you and advisory counsel to
develop mitigation. Whether you have chosen to accept that to reject that is
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totally up to you. But the record will now reflect that at least you have been
told or advised of the kind of mitigation that typically are [sic] put on in
capital cases.
(Id. at 7.) The court then asked for input from advisory counsel:
MR. COUNTRYMAN: First, with regard to the completion of
mitigation, the record gathering process is complete. But, again, Mr.
Maybury’s [sic]—it’s his position that the compiling of mitigation wasn’t
largely done in a manner that’s consistent with the way that he does it. And
he would need more time to complete the social, in particular the social
history issues. And so I just want the record to be here that it’s with regard
to that aspect of mitigation, that part isn’t done and is not done here as we
prepare for mitigation.
With regard to what’s been done, Your Honor, I want to make clear
for the record, we have completed a substantial amount of mitigation that
could be presented and could address largely all of the issues that the Court
has set forth with regard to Mr. Dixon’s appreciation for the wrongfulness
of his conduct, family instability, parental issues, mental disorders, mental
health and substance abuse. We have not only gathered the records, but also
have experts to cover those issues with regard to presentation of mitigation.
And those experts have been informed of Mr. Dixon—some of them
have met with Mr. Dixon. And I think at this point, it’s—he’s choosing not
to present that information. That’s not what we believe should be done in
the case. We think those issues should be addressed. . . . There is a catch-all
provision, and we have information prepared to address other issues with
regard to mitigation that are applicable to Mr. Dixon’s case.
....
[I]t’s our position that mitigation is very important. It’s an aspect of the
case that should be presented in total and that a lot of that has been prepared
and is available for Mr. Dixon to use. And I think it’s his decision not to
use the information that’s available and not call the experts that are
available.
(Id. at 26.) Advisory counsel Carr also elaborated on the state of the mitigation case:
[W]e have four experts approved and retained. . . . They have been
approved for some time now with regard to mental health and family
history. We have about 5,000 documents. We of course wouldn’t present all
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those, but they have been prepared. And they are things that can be used in
defense of Mr. Dixon’s life. Mr. Countryman and I would have presented
those with the help of Mr. Marybury [sic], had we been counsel. We have
let Mr. Dixon know that. But since he is his own counsel, he has chosen to .
. . pick one person, and that’s Mr. Aiken. . . .
(Id. at 28.)
Dixon then offered his view of the status of the mitigation investigation. He
explained that he had not met Aiken yet. (Id. at 28.) He had met twice with one of the
psychologists, Dr. Gaughan, whom he described as unprepared to discuss his case. (Id.)
He had not met with the other two experts. (Id.) Dixon continued:
As far as mitigation goes, I do not believe Mr. Maybury [sic] had
enough time to interview the 40 some-odd people that he had listed in his
letter. The person he hired on to help him with mitigation didn’t exactly put
together what a—what he considered an adequate report, and he had to go
through it again.
To me, Your Honor, the mitigation, like [the prosecutor] said, is
really not there.
(Id. at 28–29.)

17

The court then asked Dixon if he agreed with advisory counsel’s representations

18

about the state of the mitigation case and his decision not to follow their advice about

19

presenting mitigation evidence. (Id. at 29.) Dixon replied:

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I would agree with their assessment up to the point where I am
completely unprepared for that simply because, you know, legal counsel in
a death penalty case, he would be right here, hands on with mitigation, and
would know exactly what kind of reports are being referred to. He’d know
who—he’d know pretty much what is going on with mitigation.
Me, I have no idea whatsoever. I have a general idea simply from
what [advisory counsel] have alluded to, but other than that, Your Honor,
mitigation is not. . . .
THE COURT: You have said before, mitigation has not been
developed as extensively as you would like. . . . But you’ve also said from
everything you know to this point, there is no mitigation.
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1
2
3
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5
6

MR. DIXON: . . . I imagine mitigation is a presentation. And the
presentation to me is, in order to be effective, it has to be complete. And
this is not complete. . . . I imagine if Mr. Maybury [sic] had the time to
make it complete, then I probably would have been very satisfied with it.
But I have no idea, no idea whatsoever . . . how it looks.
(Id. at 30.)

7

The court then asked advisory counsel to respond to Dixon’s characterization of

8

the status of the mitigating evidence. (Id.) Carr stated that counsel had “put together

9

roughly a list of twelve different things with regard to mitigation, the areas we would

10

have covered had we been counsel. All we can do at this point, get the experts, let him

11

know they’re there, and so he makes the decision if he wants to use them.” (Id. at 30–31.)

12

Countryman concurred, explaining that counsel had worked with Mayberry to compile a

13

checklist of the twelve areas of mitigation, and they gave the list to Dixon. (Id. at 31.)

14

Countryman continued:

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We understand what Mr. Dixon’s saying with regard to the social
history and the volumes of people that Mr. Maybury [sic] believes he did
not have time to address. But then there’s other aspects of Mr. Dixon’s life
that the jury ostensibly would not hear about that we believe very strongly
bear into the jury’s determination as to what sentence to provide.
There are numerous reports about Mr. Dixon’s mental health history
back at that time that we have reviewed that we have an expert prepared to
address. There are numerous reports about Mr. Dixon’s substance abuse
issues. All kinds of factors that an expert is available to address with the
jury so they have an idea of what he was going through and the type of
issues he had 30 years ago. That’s information that is important for a jury to
consider. But they’re not going to hear that.
That information is—those reports are complete. Those have been
reviewed by an expert and are ready to be presented. So there are areas in
which Mr. Maybury [sic] didn’t have time to complete, but there are also
other areas that are complete that have experts available to discuss that we,
had we been counsel, we could have presented in this case, and we think
would have had a substantial impact on a jury’s consideration of the
punishment.
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1

....

2

[Y]es, we agree with Mr. Dixon that we don’t believe there was enough
time to cover all of the aspects of mitigation. But there are several other
aspects that are completed that have experts . . . approved and remain and
have reviewed that information that is ready to be presented to the jury.

3
4
5
6

(Id. at 31–32.) When asked to respond, Dixon stated:

7

Your Honor, it’s advisory counsel’s position, I believe, and I don’t
want to put words in their mouth, but I believe they have—they feel that—
that providing as much mitigation as they can will somehow work in my
favor. I don’t believe that’s so, simply because of my understanding of the
mitigation is different from their understanding of the mitigation. They
have an obligation to do the best they can, and I respect that. And I guess
you would say I honor that, but there was simply not enough time. And
rather than—what is it, wallow in spilled milk? I think we just need to get
on with it.

8
9
10
11
12
13
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(Id. at 33.)

15

The court reminded Dixon that the State would be allowed to rebut any mitigating

16

evidence he presented. (Id.) Dixon explained that his mitigating evidence was based on

17

incidents from thirty years ago and was “stale.” (Id. at 34.) “[T]here is nobody to come

18

and sit or stand in that witness box and tell people how it was back then.” (Id.) He also

19

described Mr. Aiken’s testimony as the only mitigation evidence that wasn’t “two

20

dimensional,” explaining that “as far as I know, jurors don’t care for two dimensional.”

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(Id.)
The prosecutor again noted that if Dixon were to present mitigating evidence of
his family history, the door would be open to negative information, such that Dixon was
“disenfranchised [sic] from the family” and that he had sexually assaulted his sister. (Id.)
The mitigation hearing took place on January 23, 2008. Dixon called Aiken, who
testified that Dixon’s prison record indicated that he did not pose a danger while
incarcerated. The state presented a rebuttal witness who testified that Dixon’s record
showed the potential for future violence. The jury returned with a death sentence the next
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day.
In a declaration prepared during the PCR proceedings in 2013, mitigation
specialist Mayberry attested that the mitigation investigation had been going on for four
years when he received the case, “but there were no interview notes from the previous
mitigation investigation and numerous documents that were referenced but missing.”
(Doc. 37–2, PCR Pet., Ex. D.) He stated that he reviewed 3,000 pages of discovery in
preparation for Dixon’s case, including “an extensive mental health history.” (Id. at 2.)
Mayberry explained that advisory counsel “regarded their role in Dixon’s defense
as discretionary and limited. They agreed to answer Dixon’s questions (if he posed them)
but did not actively prepare Dixon for trial.” (Id.) Advisory counsel “did not prepare
questions or facilitate development of further mitigation.” (Id.) Advisory counsel told

12

Mayberry that “they could only answer Dixon’s questions regarding experts,” but they

13

did meet with Gaughan and Aiken. (Id.) Mayberry encouraged Dixon to participate in an

14

evaluation, and Dr. Gaughan was “doing testing during trial.” (Id.) According to

15

Mayberry, “We had to change our focus of mitigation completely and rely on whatever

16

Dr. Gaughan and James Aiken could provide, because they were the only experts that

17

could be ready in such a short time.” (Id.)

18

2.

19

The Arizona Supreme Court rejected Claim 9 on the merits. Dixon, 226 Ariz. at

20

554–56, 250 P.3d 1183–85. The court described the facts surrounding the claim as

21

follows:

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25
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Analysis: Claim 9

Dixon was arraigned in January 2003; the State filed a notice of
intent to seek the death penalty in March of that year. In July 2003, defense
counsel suggested that it might take longer than usual to compile mitigation
evidence because Dixon spent his early life on the Navajo reservation.
After counsel stated that the mitigation specialist would need “a year,” the
judge set the trial date for June 15, 2004.
Over the next few years, the court repeatedly granted defense
requests to continue the trial. In April 2004, the public defender estimated
that if a new specialist were assigned, the mitigation investigation could be
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1

completed in five months. The court granted a defense motion for a
continuance and vacated the June trial date. After the case was reassigned
to a new specialist, the deadline for disclosure of mitigation evidence was
accordingly extended to January 2005. That deadline was not met, and after
Dixon was granted permission to represent himself in March 2006, the trial
date was set for October 18, 2006. In September 2006, however, Dixon
estimated that his mitigation evidence would not be ready for “nine months
or a year.” The court continued the trial to June 25, 2007, “a date certain.”

2
3
4
5
6
7

In May 2007, however, Dixon told the court his mitigation was still
not ready and sought another continuance. The trial was reset for August
2007. Two months later, Dixon requested another continuance. Although he
expressed frustration, the judge reset the trial date for September 13, 2007.
At a subsequent hearing, the trial date was moved back to November 13,
2007.

8
9
10
11

A week before trial was scheduled to begin, Dixon asked for a threemonth continuance. The court denied the motion, noting in a minute entry
that “[t]he defense mitigation work-up in this case has been ongoing for
well over four years.” Dixon claims that the court erred in denying this last
continuance request.

12
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Id.
The court then noted that the Arizona Rules of Criminal Procedure provided that
capital cases “shall be tried” within eighteen months of arraignment and that trial dates
can be continued “only upon a showing that extraordinary circumstances exist and that
delay is indispensable to the interests of justice,” taking into account “the rights of the
defendant and any victim to a speedy disposition of the case.” Id.
Based on this background, the Arizona Supreme Court found that the trial court
did not abuse its discretion in refusing to grant another continuance:
Dixon was given more than four years to develop mitigation. The trial court
found that the particular circumstances of this case, including Dixon’s
decision to represent himself and request a new mitigation expert, justified
repeatedly continuing the original trial date. Indeed, the judge granted
continuances even after cautioning Dixon that he had set “a date certain for
trial.”
Dixon’s requests for continuances were premised on the alleged
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1

need to develop more mitigation evidence. However, in the penalty phase,
Dixon presented virtually no evidence, even though advisory counsel
advised the court that witnesses, both expert and percipient, were prepared
to present substantial amounts of mitigation. In deciding to forego this
available mitigation evidence, Dixon rejected the explicit advice of
advisory counsel and the strong suggestions of the trial court. Instead, he
chose to call only an expert to testify about his prison history.

2
3
4
5
6

In rejecting Dixon’s final continuance request, the trial court
appropriately considered not only Dixon’s interests, but also the rights of
Deana’s parents, the crime victims. Rule 8.5(b) expressly directs the trial
judge to consider the rights of victims, who, like the defendant, are entitled
under our Constitution to a speedy disposition of criminal charges. See
Ariz. Const. art. 2, § 2.1(A)(10). Deana’s parents repeatedly asserted that
right and the superior court did not abuse its discretion, after granting
numerous continuances, in finally honoring their request that the trial
proceed.

7
8
9
10
11
12
13

Id.

14

Dixon contends that the trial court failed to consider the “undisputed evidence and

15

representations that supported his motions to continue and, contrary to the law, relied on

16

the inaccurate representations made by standby counsel, all to Dixon’s prejudice.” (Doc.

17

27 at 123.) He alleges the denial of a continuance violated his right to a fair trial and an

18

individualized sentencing. (Id. at 130.) Dixon alleges that the Arizona Supreme Court’s

19

rejection of this claim involved an unreasonable application of clearly established federal

20

law and an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1) and (2).

21

The Court disagrees.

22

Dixon’s principal contention is that the trial court ignored his arguments about the

23

incomplete state of mitigation case and instead relied on the misrepresentations made by

24

advisory counsel. These assertions are flawed for a number of reasons.

25

First, when Dixon filed his motion to continue the trial in early November 2007,

26

more than two months before the mitigation hearing, the mitigation investigation was

27

sixty percent complete, according to Mayberry. Nevertheless, Dixon chose not to present

28

this available evidence. Dr. Gaughan, the psychologist who examined Dixon, could have
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testified in mitigation, but Dixon chose to call only Aiken, the prison expert. (PCR Pet.,
Appx. D at 1–2.) It was also clear from Dixon’s discussion with the court and the
prosecutor that he did not believe there was helpful family history evidence to present in
mitigation, particularly given the potential rebuttal evidence (see RT 1/22/08 at 28–29,
34); nor did he want to air his family’s “dirty laundry” (RT 1/16/08 at 14). Dixon
challenges the assertion that he voluntarily chose to forego the presentation of mitigating
evidence. However, when examined by Dr. Toma in 2012, Dixon again “made it clear
that he does not want to present mitigation.” (PCR Pet., Appx. A at 24.)
Dixon’s assessment of his mitigation evidence is not inconsistent with the
Supreme Court’s Strickland jurisprudence. “Strickland does not require counsel to
investigate every conceivable line of mitigating evidence no matter how unlikely the

12

effort would be to assist the defendant at sentencing. Nor does Strickland require defense

13

counsel to present mitigating evidence at sentencing in every case.” Wiggins v. Smith,

14

539 U.S. 510, 533 (2003). As the Ninth Circuit has noted, “There will always be more

15

documents that could be reviewed, more family members that could be interviewed and

16

more psychiatric examinations that could be performed.” Leavitt v. Arave, 646 F.3d 605,

17

612 (9th Cir. 2011) (citing Pinholster, 131 S. Ct. at 1407; Strickland, 466 U.S. at 691).

18

Next, advisory counsel’s alleged misrepresentations were made at the January 22,

19

2008, conference, more than two months after the court had denied Dixon’s last motion

20

to continue. Clearly, whatever their accuracy, the court did not rely on those statements in

21

denying the continuance.

22

a.

23

Dixon contends that the Arizona Supreme Court unreasonably applied Lockett v.

24

Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), “when it

25

found the trial court did not violate Dixon’s rights by precluding the sentencer from

26

considering mitigation.” (Doc. 27 at 131.) Under Lockett and Eddings, the Eighth

27

Amendment requires “that the sentencer . . . not be precluded from considering, as a

28

mitigating factor, any aspect of a defendant’s character or record and any of the

Dixon has not satisfied 28 U.S.C. § 2254(d)(1)

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circumstances of the offense that the defendant proffers as a basis for a sentence less than
death.” Lockett, 438 U.S. at 604.
Here, Dixon proffered a single basis for a sentence less than death—the expert
opinion of Mr. Aiken that Dixon could be managed in the prison system and did not
present a threat of violence. As already described, Dixon had other avenues of mitigation
available, including mental health evidence, but chose not to present them; instead, he
wanted to “get on with” the sentencing hearing. (RT 1/22/08 at 33.) The court did not
preclude him from presenting the evidence. In fact, the court informed Dixon about the
types of mitigation that were typically presented and made it clear to Dixon that
foregoing the presentation of such evidence was contrary to the advice of counsel. (RT
1/22/08 at 6, 29.) There was no violation of Lockett/Eddings.

12

Although not cited by the parties, the clearly established law governing Claim 9

13

includes Morris v. Slappy, 461 U.S. 1 (1983), and Ungar v. Sarafite, 376 U.S. 575

14

(1964). See Dixon, 226 Ariz. at 555, 250 P.2d at 1184 (citing State v. Hein, 138 Ariz,

15

360, 368, 674 P.2d 1358, 1366 (1983)). Analysis under this line of cases also shows

16

Claim 9 is meritless.

17

A trial court’s decision to grant or deny a continuance is a matter of discretion.

18

Ungar, 376 U.S. at 589. Denial of a continuance warrants habeas relief when it

19

constitutes an abuse of discretion and the resulting error is “so arbitrary and

20

fundamentally unfair that it violates constitutional principles of due process.” Bennett v.

21

Scroggy, 793 F.2d 772, 774–75 (6th Cir. 1986) (citation omitted). A constitutional

22

violation occurs only when there is “an unreasoning and arbitrary ‘insistence upon

23

expeditiousness in the face of a justifiable request for delay.’” Slappy, 461 U.S. at 11–12

24

(quoting Ungar, 376 U.S. at 89). To be entitled to relief, a petitioner must also show

25

actual prejudice to his defense as a result of the refusal to grant a continuance. Gallego v.

26

McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997). “Actual prejudice may be demonstrated

27

by showing that additional time would have made relevant witnesses available or

28

otherwise [would have benefited] the defense.” Powell v. Collins, 332 F.3d 376, 396 (6th
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Cir. 2003).
Based on the circumstances described above, including the age of the case, the
number of continuances already granted, and the work performed by Dixon’s mitigation
specialists, the Arizona Supreme Court reasonably could conclude that the decision of the
trial court was not an “unreasoning and arbitrary” insistence on proceeding to trial in the
face of a justifiable request for delay. Slappy, 461 U.S. at 11; see Middleton v. Roper, 498
F.3d 812, 817 (8th Cir. 2007). Moreover, Dixon cannot show actual prejudice given his
own decision not to present available mitigating evidence concerning his family
background and mental health. Claim 9 does not satisfy 2254(d)(1). See Harrington, 562
U.S. at 103 (the state court’s ruling was not “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement”).

13

b.

14

Dixon contends that the trial court made factual errors in denying his motion to

15

continue. He argues that the court misstated the date of Mayberry’s appointment,

16

mischaracterized the amount of mitigation work that had been performed, and failed to

17

specifically address the obstacles and delays cited in Dixon’s motion. (Doc. 27 at 128–

18

29.) Dixon also argues that the Arizona Supreme Court relied on the erroneous claims of

19

advisory counsel when it denied this claim on direct appeal. (Id. at 132–34.) These

20

arguments are not persuasive.

Dixon has not satisfied 28 U.S.C. § 2254(d)(2)

21

In its order denying Dixon’s final request for a continuance, the trial court stated

22

that Mayberry was appointed on May 12, 2006, but noted that “Mayberry contends he

23

didn’t actually receive the file until late July, 2006.” (ME 11/19/07.) The court further

24

stated that by the time the mitigation phase started, in January 2008, Mayberry would

25

have had Dixon’s file for eighteen months. As Dixon notes, Mayberry indicated in his

26

letter to Dixon, attached to Dixon’s motion for a continuance, that he did not receive the

27

file until November 2006.

28

The length of time Mayberry actually had the file is incidental to the
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representations he and Dixon made about the status of the mitigation investigation. The
court was aware that in Mayberry’s estimation, the investigation was only sixty percent
complete. The court also knew that Dixon and Mayberry believed there were some forty
witnesses yet to be interviewed. Finally, the court was keenly aware that Dixon faced
difficulties in pursuing a mitigation case while representing himself; it had warned him
repeatedly of the drawbacks of proceeding pro se (see, e.g., RT 2/27/06), and had granted
several continuances based on Dixon’s circumstances. Dixon, 226 Ariz. at 555, 250 P.2d
at 1184. The fact that the court omitted another discussion of the impediments Dixon
faced as a pro se litigant did not render its ruling unreasonable. “[S]tate courts are not
required to address every jot and tittle of proof suggested to them, nor need they ‘make
detailed findings addressing all the evidence before [them].’” Taylor, 366 F.3d at 1001
(quoting Miller–El v. Cockrell, 537 U.S. 322, 347 (2003)).

13

In any event, under review in Claim 9 is the Arizona Supreme Court’s

14

determination that the trial court did not abuse its discretion in denying a continuance.

15

See Barker v. Fleming, 423 F.3d at 1091. The court cited the representations made by

16

advisory counsel at the January 22, 2008, status conference. Dixon, 226 Ariz. at 555, 250

17

P.2d at 1184. Dixon contends those representations were false. Advisory counsel told the

18

court that there were four experts who had been “approved and retained,” including

19

experts on “mental health and family history.” (RT1/22/08 at 27–28.) Advisory counsel

20

also stated there were 5,000 documents that had “been prepared.” (Id. at 28.) They also

21

indicated they had shared this information with Dixon. (Id. at 31.)

22

Dixon contends that advisory counsel’s representations are contradicted by

23

Mayberry’s statements about the status of mitigation. (Doc. 27 at 138–39.) The Court

24

disagrees. As discussed above, two months before the January 22 status conference,

25

Mayberry indicated that his investigation was sixty percent complete, and during the

26

investigation Mayberry reviewed 3,000 pages of documents. This information does not

27

contradict the representations of advisory counsel, who never contended that the

28

mitigation investigation was complete. In fact, they “agree[d] with Mr. Dixon that we
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don’t believe there was enough time to cover all the aspects of mitigation.” (RT 1/22/08
at 32.)
Likewise, the record does not meaningfully contradict advisory counsel’s
representations with respect to expert witnesses. As they told the trial court, one witness,
presumably Dr. Gaughan, was ready to present evidence about Dixon’s mental health.
(Id. at 32.) Although they did not work on the case, funding was approved for Drs. Anna
Scherzer, a psychiatrist, and Carlos Jones, a psychologist. Mr. Aiken, another expert, did
testify on Dixon’s behalf. Advisory counsel did not state that all of the expert witnesses
they referred to had worked on the case and were prepared to testify. (Id. at 27–28.)
Because advisory counsel’s representations were not inaccurate, the Arizona
Supreme Court’s ruling, which cited those representations, was not based on an

12

unreasonable determination of the facts regarding the status of Dixon’s mitigation case.

13

Accordingly, Dixon has not satisfied § 2254(d)(2). See Wood v. Allen, 558 U.S. at 301;

14

Rice v. Collins, 546 U.S. at 341–42; Hurles, 752 F.3d at 778.

15

Claim 9 is denied.

16

3.

17

Dixon contends that his advisory counsel made false representations to the trial

18

court and the court’s reliance on them violated Dixon’s right to self-representation. (Doc.

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27 at 136.) Dixon did not raise this claim in state court. Respondents contend that the

20

claim, while procedurally defaulted, is plainly meritless and can be dismissed under 28

21

U.S.C. § 2254(b)(2). The Court agrees. Advisory counsel did not violate Dixon’s right to

22

self-representation.

Analysis: Claim 10

23

Advisory counsel’s participation is limited in two ways: (1) the defendant has the

24

right to preserve actual control over the content of the case presented to the jury, and so

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advisory counsel is not allowed to “make or substantially interfere with any significant

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tactical decisions, or to control the questioning of witnesses, or to speak instead of the

27

defendant on any matter of importance”; and (2) advisory counsel’s participation must

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not be allowed to destroy the jury’s perception that the pro se defendant is representing
himself. McKaskle, 465 U.S. at 178–79.
Here, Dixon maintained actual control over his case, choosing to present a very
limited case in mitigation notwithstanding advisory counsel’s advice to the contrary.
Advisory counsel’s participation in the January 22 status conference took place without
the jury present, so there was no impact on the jury’s perception that Dixon was
representing himself. Claim 10 is plainly meritless and will be denied.
G.

9
10
11

Claim 11
Dixon alleges that his rights to due process and a fair sentencing were violated

when the court permitted the state to present rebuttal testimony at sentencing.10 (Doc. 27
at 152.) Dixon did not raise this claim in state court. He contends that default of the claim

12

is excused under Martinez. As already noted, however, Martinez applies only to

13

ineffective assistance of counsel claims. Pizzuto, 783 F.3d at 1177. Because Dixon does

14

not show cause for his default of the claim in state court, and because he does not allege a

15

fundamental miscarriage of justice, Claim 11 is barred from federal review.

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H.

Claim 12

17

Claim 12 consists of several allegations of prosecutorial misconduct, only one of

18

which was raised in state court. (Doc. 27 at 158–89.) Claim 12(1), alleging that the

19

prosecutor committed misconduct by presenting evidence of the prior rape, was denied

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on the merits by the Arizona Supreme Court. Dixon, 226 Ariz. at 549–50, 250 P.3d at

21

1178–79. The remaining subclaims are procedurally defaulted and barred from federal

22

review.

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1.

Claim 12(1)

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On direct appeal Dixon argued “that because the medical examiner could not

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26
27
28

10

As described in more details below, Aiken, the corrections expert, testified in
mitigation that Dixon did not pose a threat of future dangerousness because he was
serving life sentences and could be managed within the prison system. (RT 1/23/08 at 40,
47.) The trial court allowed the State to call Dr. Kimberly Carroll, a psychologist, in
rebuttal. (See id. at 104–05.)
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conclusively opine that Deana had also been raped, the prosecutor committed misconduct
by offering the testimony of the 1985 victim.” Id. at 549, 250 P.3d at 1178. The Arizona
Supreme Court found no misconduct:
Dixon nonetheless argues that the prosecutor committed misconduct
because he knew that the State could not prove that Deana had been raped,
and the prior acts therefore could not demonstrate “an aberrant sexual
propensity to commit the crime charged,” as Rule 404(c)(1)(B) requires.
The jury, however, convicted Dixon of felony murder, and rape was the
charged predicate felony. On appeal, Dixon has not directly challenged the
sufficiency of the evidence to support that verdict.

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In any event, the record does not support Dixon’s argument.
Although the testifying medical examiner could not independently verify
that Deana had been raped, he refused to rule out a sexual assault. Rather,
he affirmed that “rape can occur with no injuries.”
There was ample evidence from which the jury could conclude that
Deana had been raped. She had left a bar alone at 12:30 a.m. and was found
dead in her apartment, with a belt tightly cinched around her neck, only 90
minutes later. Dixon’s semen was found on her underpants (which she had
first put on that evening) and in her vagina. Deana had no known previous
acquaintance with Dixon. She had indentations on her right wrist,
indicating she had been restrained. Her clothing was disheveled, and she
had urinated on the bed. Dixon’s claim that the prosecutor “misled the trial
court” as to whether Deana had been raped finds no support in the record.
Id. The court also noted, as discussed above, that the evidence was properly admitted
under Rule 404(c). Id. at 549–50, 250 P.3d at 1178–79.
The appropriate standard of federal habeas review for a claim of prosecutorial
misconduct is “the narrow one of due process, and not the broad exercise of supervisory
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974) (explaining petitioner not entitled to relief in

25

the absence of a due process violation even if the prosecutor’s comments were

26

“undesirable or even universally condemned”). Therefore, in order to succeed on this

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claim, Dixon must prove not only that the prosecutor’s conduct was improper but that it

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“so infected the trial with unfairness as to make the resulting conviction a denial of due
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process.” Id.; see Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (explaining that
acts of prosecutorial misconduct “warrant relief only if they ‘had substantial and injurious
effect or influence in determining the jury’s verdict’”) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637–38 (1993)). “[T]he touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
Dixon cannot show misconduct. The trial court determined that the evidence was
admissible under Rule 404(c). It is not prosecutorial misconduct for a prosecutor to offer
evidence which is deemed relevant and admissible by the trial court. See Cristini v.
McKee, 526 F.3d 888, 900 (6th Cir. 2008); Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir.
1997)

12

Dixon nevertheless contends that the Arizona Supreme Court’s denial of this

13

claim—principally, its conclusion that ample evidence supported a finding that the sex

14

between Dixon and Deana was nonconsensual—was based on an unreasonable

15

determination of the facts. (Doc. 27 at 164.) Contrary to Dixon’s argument, however, the

16

court’s account of the facts is fully supported by the record. Dixon’s critique of the

17

evidence is not sufficient to render the Arizona Supreme Court’s decision unreasonable

18

under § 2254(d)(2).11 See Rice v. Collins, 546 U.S. at 341–42 (explaining that the fact

19

“[r]easonable minds reviewing the record might disagree” is not enough to supersede the

20

state court’s determination); Wood v. Allen, 558 U.S. at 301; Hurles, 752 F.3d at 778.

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Claim 12(1) is denied.

22

2.

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Dixon did not present his remaining claims of prosecutorial misconduct in state

24

court. He contends that under Martinez their default can be excused by the ineffective

25

assistance of appellate and PCR counsel. (Doc. 39 at 55.) Martinez is available only to

Claims 12(2)–(6)

26
27
28

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For example, Dixon notes that a stain on the bed, which the state argued was the
victim’s urine, was never tested. (Doc. 27 at 164.) Whatever the significance of the stain,
the fact that it was not tested does nothing to undermine the reasonableness of the finding
that the victim was raped.
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excuse the default ineffective assistance claims. Pizzuto, 783 F.3d at 1177. Because
Dixon does not show cause for his default of these claims in state court, and because he
does not show a fundamental miscarriage of justice, Claims 12(2)–(6) are barred from
federal review. However, because the claims of prosecutorial misconduct underlie one of
Dixon’s claims of ineffective assistance of appellate counsel, the Court will discuss them
here.
a.

Claim 12(2)

Dixon alleges that the prosecutor engaged in misconduct when he avowed to the
court that he would limit his arguments supporting the (F)(6) aggravating factor to
specific facts and then exceeded those limitations during the penalty phase of trial. (Doc.
27 at 165.)

12

At a pretrial hearing on February 20, 2004, the court heard oral argument on

13

Dixon’s request for a bill of particulars on the F(6) aggravating factor.12 (RT 2/20/04.)

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The court asked the prosecutor which subsections of the cruel, heinous, or depraved

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factor the State was proceeding under. (Id. at 13.) The prosecutor responded:

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The heinous aspect of it. I believe that the treatment of the victim
and the fact that she was alive for a period of time. So it would be
depraved, cruel, and heinous that we’re going to proceed under.
She was alive we believe for a period of time [sic] he forced her to
dress. There was some relishing afterwards so it would be all three I guess.
She was stabbed post-mortem. She had to suffer the indignity of rape. And
this was something she was not conscious [sic] about. This was something
she knew was happening at the time he finally strangled her to death.

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(Id. at 13–14.)
The court denied the motion for a bill of particulars because the information
sought was included in the State’s disclosure obligations. (Id. at 15.) Addressing the
prosecutor, the court explained: “I’ll expect you to limit your presentation at the

27
28

12

At the time of the motion, the case was before Maricopa County Superior Court
Judge John Foreman.
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aggravation phase . . . to the evidence and subparts of the cruel, heinous, and depraved
aggravator. . . . I expect you to limit your presentation to what you articulated today.”
(Id.) When the prosecutor noted that the State was alleging all three subsections, the court
responded:
Yes, but I expect you to specifically refer to the evidence that you intend to
use for each one of those specific subparts. And I believe that’s a part of
your disclosure requirement under the Rules of Criminal Procedure. If you
haven’t done that specifically I want you to do that.
(Id.) The prosecutor replied that he thought he had already made the disclosure but would
“do it more specifically within a week.” (Id.)
Dixon contends that during the penalty phase of his trial the prosecutor presented
arguments in support of the (F)(6) factor that he did not discuss at the hearing four years
earlier, including the victim’s “fear and distress, the disgust of the rape, that she was in
her own home, the additional violence such as punching her in the face and squeezing her
arm, her loss of pride when she urinated on herself, [] that the last thing she saw before
she died was the man that raped her,” and that “the post-mortem injuries to her body were
mutilation of the corpse.” (Doc. 27 at 166.)
The prosecutor did not commit misconduct. First, his arguments did not extend
significantly beyond those he had outlined at the 2004 hearing. In addition, the arguments
were based on the facts and circumstances surrounding the murder, including the rape
and the victim’s injuries. Dixon does not allege that the State failed to disclose such
information. Claim 12(2) is plainly meritless.
b.

Claim 12(3)

Dixon alleges that the prosecutor engaged in misconduct when he presented
evidence and made arguments that were inconsistent with a laboratory report that

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excluded Dixon as a major contributor of the DNA found on the murder weapon. (Doc.

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27 at 167.)

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i.

Claim 12(3)(a)

Dixon contends that the prosecutor presented misleading expert testimony at the
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guilt phase of trial by offering testimony inconsistent with the DNA expert’s report. (Id.)
Lorraine Heath, a forensic expert, examined the murder weapon—a macramé
belt—for DNA. (RT 12/11/07, Heath testimony, at 5–8, 19.) With the results obtained
from the belt, she compared profiles from Dixon and from Michael Banes, Deana’s
boyfriend. (Id. at 25, 44.) There was “very, very little DNA” available for testing. (Id. at
27.) Her analysis identified a mixture of three male sources on the belt. (Id. at 29, 32.)
Heath testified that DNA consistent with Michael Banes’ profile was found at nine
locations and DNA consistent with Dixon’s profile was found at seven of the sixteen
locations. (Id. at 47.) Heath testified that Dixon could be neither excluded nor included as
a major contributor:

12

Q. Can you tell which of the two [Dixon or Banes] is the major contributor
of the DNA sample?

13

A. No, I can’t.

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Q. And that’s because they’re roughly the same, right, in terms of the
location?
A. The profile is of poor enough quality that there is not enough
information for me to say that either of those two are a major contributor.
The conclusion I would draw, in my opinion, on both of those is about the
same. They are not definitely included, and they are not definitely
excluded. They might be present.
Q. In terms of Mr. Dixon, as I understand it, is he excluded from that
sample based on what you see?
A. No, he is not definitely excluded. He may or may not be present.

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(Id. at 48.)
Heath testified that in the locations where all three male DNA profiles were
present, DNA consistent with Dixon’s profile was also present. (Id. at 48, 62.) If DNA
consistent with Dixon’s DNA profile was not present at one of those locations, Heath
testified she would have reported an exclusion. (Id. at 54.)
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As Dixon notes, Heath wrote in her 2005 report that “[t]he partial male DNA
profile from Item #3, 4 (swabs from belt) is a mixture of at least three individuals. Item
#78 (Clarence Dixon) is excluded as a major contributor.” (Doc. 49-1, Ex. 3.) Heath’s
trial testimony did not contradict her report. Although Dixon was excluded as a “major
contributor,” neither the report nor Heath’s testimony excluded Dixon’s DNA profile as
being consistent with the profiles found on the belt.
ii.

Claim 12(3)(b)

Dixon alleges that the prosecutor “misled the jury on the key issue of whose DNA
was on the belt used to strangle Bowdoin.” (Doc. 27 at 171.) Dixon cites a number of
excerpts from the prosecutor’s closing argument. Respondents contend that the DNA
comments in the prosecutor’s closing argument, when taken in context, constitute
reasonable inferences from the trial evidence. (Doc. 36 at 76.) The Court agrees.

13

In his opening statement, Dixon told the jury that “DNA evidence was found on

14

the murder weapon and it was tested, and that DNA evidence is not mine.” (RT 12/4/07

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at 10.) The prosecutor responded to that statement in his closing argument:

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If you take a look at what you have on the DNA belt, it’s a mixture
of, according to the criminalist, of three individuals; one of them where
they can get a full profile or they can get a full result at each of the [loci] or
each of the locations where they can get a result, one of the individuals is
Michael Bains [sic]. And remember he said, “Yes, I came home and I
touched it.” But one of the things we have to keep in mind here is, if you
remember, her mother, Dina’s [sic] mother said, “she wasn’t wearing a
belt.” So, that belt had to be placed on there after she got home and after the
rape or at the time of the rape.
....
The other person that’s in this mixture is the Defendant. And that’s the crux
of the case. How can he say, “Yes, Michael Bains did touch this belt and
let’s go with this partial profile—as they call it—but exclude my partial
profile from there”? How can he explain away to you that his DNA, which
is corroborated by the evidence, is on that belt?
(Id. at 33-34.)

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After discussing more of the evidence and the jury instructions, the prosecutor
returned to the DNA evidence.
And we also know, because of the DNA tests, that his DNA, his cellular
material, is on that belt, a belt she was not wearing that night. And if you
take a look at the progression of that belt, the only time that that belt was
placed in action, if you will, was at the time he placed it around her neck.
So by necessity and the way things played out, he was the individual that
first touched that belt. That is how his DNA was on that belt. It wasn’t that
Michael Bains put it there first and then it was the Defendant. The only
time the Defendant had any contact with this woman was between 1:30 and
2:00 o’clock in the morning, and he had to have it first. So his DNA was
placed on that belt first. So there is no doubt that he is the individual that
did this. There is no doubt that he’s the individual that choked her or placed
that in there so that she would choke and die.

12

(Id. at 44.) Later the prosecutor argued “[w]e also know that it’s his DNA. It’s a mixture,

13

but his DNA that is on—or at least the profile where you get a result, there’s a match, is

14

around her neck.” (Id. at 48.).

15

In his closing argument, Dixon, citing Heath’s testimony, asserted that his DNA

16

was not on the belt: “[The prosecutor] kept saying that my DNA was on that belt. No. My

17

DNA is not on that belt. You heard testimony from Loraine Heath. She said—when he

18

asked her about that, she said, he cannot be included but he can’t be excluded either.” (Id.

19

at 82; see id. at 89, 98.) Dixon argued that the State’s DNA evidence could put him “on

20

and in” the victim, but could not put him in the apartment. (Id. at 83–84.)

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In rebuttal, the prosecutor argued that Dixon took the belt “placed it around her
neck, and that’s how his DNA got on there. There is no other way that it could have
gotten on there.” (Id. at 102.) In response to Dixon’s suggestion that the victim may have
been raped outside the apartment, the prosecutor argued that Dixon’s DNA on the belt
demonstrated that the sexual assault happened in the apartment, because the victim had
not been wearing the belt earlier in the evening. (Id. at 102–03.)
“Counsel are given latitude in the presentation of their closing arguments, and
courts must allow the prosecution to strike hard blows based on the evidence presented
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and all reasonable inferences therefrom.” Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.
1996); see United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005); United States
v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000)
Given the totality of the evidence, including the presence of Dixon’s DNA inside
the victim and on her panties, it was not improper for the prosecutor to argue that Dixon’s
DNA profile was present on the murder weapon. Although there was not a “match” to
Dixon’s DNA on the belt, it was reasonable to draw the inference that the DNA
consistent with his profile did in fact belong to him.
Finally, to the extent the prosecutor inaccurately argued that a DNA match was
found on the belt, there was no due process violation. First, the trial court instructed the
jury to determine the facts “only from the evidence produced in court.” (RT 1/10/08 at 8.)

12

The court explained that, “When I say ‘evidence,’ I mean the testimony of witnesses and

13

the exhibits introduced in court.” (Id. at 7.) The jurors were also instructed that “[w]hat

14

the lawyer said is not evidence.” (Id. at 8.) The Court must presume that the jury

15

followed its instructions. Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000). In

16

addition, the evidence of Dixon’s guilt was strong. See id. (citing Darden, 477 U.S. at

17

181–82). The prosecutor’s arguments did not render Dixon’s trial fundamentally unfair.

18

c.

19

Dixon alleges that the prosecutor engaged in misconduct when he allowed false

20

testimony by Michael Banes to go uncorrected. (Doc. 27 at 174.) This claim is based on

21

alleged inconsistencies between Banes’ trial testimony in December 2007 and statements

22

he made during a police interview on the morning of the murder in January 1978.13 The

23

inconsistencies involve the status of his relationship with Deana, the amount of alcohol

24

Banes consumed on the night Deana was murdered, and the history of the couple’s

25

practice of bondage.

Claim 12(4)

26
27
28

13

The interview was disclosed to the defense prior to trial and available to Dixon
during his cross-examination of Banes. (See Doc. 27 at 174 n.48.)
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A State may not knowingly use false testimony to obtain a conviction. Napue v.
Illinois, 360 U.S. 264, 269 (1959). A Napue violation consists of three components: (1)
the testimony was actually false; (2) the prosecution knew or should have known that the
testimony was actually false; and (3) the false testimony was material. Hayes v. Ayers,
632 F.3d 500, 520 (9th Cir. 2011). An error is material where “there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.” United
States v. Agurs, 427 U.S. 97, 103 (1976).
There was no Napue violation arising from Banes’ testimony. “The fact that a
witness may have made an earlier inconsistent statement, or that other witnesses have
conflicting recollections of events, does not establish that the testimony offered at trial
was false.” United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997); see United States

12

v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995) (“Discrepancies in the testimony . . .

13

could as easily flow from errors in recollection as from lies.”).

14

Moreover, the inconsistencies related to collateral matters and were not material.

15

Id.; see United States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995) (perjured testimony not

16

cause for reversal if it was not “directly related to the defendant’s guilt or innocence”).

17

Given the DNA evidence directly implicating Dixon, there is not a reasonable likelihood

18

that the jury’s judgment was affected by testimony from Banes about the state of his

19

relationship with Deana, his level of intoxication when he discovered her body, or their

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sexual practices.

21

d.

22

Dixon alleges that the prosecutor engaged in the following instances of

23

misconduct in his opening statement and closing argument: (a) he told the jury that Dixon

24

was not sorry for the Salazar rape; (b) argued that Dixon’s good behavior in prison was

25

not a mitigating circumstance; and (c) argued that a life sentence in this case would be a

26

“free pass.” These claims are meritless.

27

....

28

....

Claim 12(5)

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1

i.

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6

Claim 12(5)(a)

Dixon chose not to cross-examine his previous rape victim, Andrea Salazar Opper.
Instead, he simply stated “I have nothing further to say to you except I’m sorry.” (RT
12/13/07 at 34.) The prosecutor referenced this in his opening remarks during the
aggravation phase:
In the prior proceeding, the defendant stood before you, and as he
attempted to walk over to Andrea Salazar, he professed his contrition and
he attempted or said that he was sorry. Well, he told you that as part of this
proceeding. But originally that was not the case.

7
8
9

The documents that will be presented to you indicated that originally
at the time of that proceeding back in 1985 and into the sentencing hearing
of 1986, the defendant went through a trial much the same as the trial he
went through here. And so his contrition and his saying that he was sorry
was not manifested from those documents, but in those documents, after
consideration of the evidence, the jury found the defendant guilty of seven
charges associated with that rape of Andrea Salazar.

10
11
12
13
14
15

(RT 1/16/08 at 28–29.)

16

Dixon claims that this statement violated his due process rights, because the fact

17

that he took the prior case to trial was irrelevant and was unfairly used against him. (Doc.

18

27 at 181.) The Court disagrees. First, Dixon’s conviction and sentence in the Andrea

19

Salazar case was relevant to the F(1) aggravator. In addition, Dixon’s statement to

20

Salazar before the jury opened the door to argument casting doubt on his contrition for

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22
23
24
25
26
27
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the 1985 rape. See Brooks v. Tennessee, 406 U.S. 605, 609 (1972) (explaining that a
defendant may “open the door to otherwise inadmissible evidence which is damaging to
his case”).
Finally, the Court agrees with Respondents that any error by the prosecutor in
discussing this evidence did not rise to the level of a due process violation infecting the
aggravation phase, nor did it rise to the level of having a “substantial and injurious effect”
on the sentencing verdict. See Brecht, 507 U.S. at 631.
....
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ii.

Claim 12(5)(b)

Dixon alleges that the prosecutor committed misconduct by telling the jury that
“Dixon’s conduct in prison was not a mitigating factor at all.” (Doc. 27 at 183.) This
allegation misrepresents the record.
In his opening statement during the penalty phase, Dixon told the jurors that he
had been in prison since June 10, 1985, serving seven consecutive life sentences for the
Salazar rape; that his mitigation was going to be limited to the testimony of a former
prison warden; and that his record showed he was not a violent prisoner or a threat to
staff or other inmates. (RT 1/22/08 at 53–54.) Dixon also described prison as a “fairly
boring and empty life.” (Id. at 54.)
In his opening statement, the prosecutor remarked that Dixon’s “mitigation . . . is

12

nothing more than he is a model prisoner.” (Id. at 55.) Dixon objected on the grounds that

13

the prosecutor misstated the facts; Dixon had not claimed to be a model prisoner. (Id. at

14

56.) The objection was sustained. (Id.) The prosecutor then stated that Dixon was “trying

15

to garner that sympathy about being a boring and empty life, that’s what he is asking you

16

for.” (Id.) He continued:

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It’s nothing more than an excuse. It’s not a mitigating circumstance, and the
State asks that you find, number one, when the evidence is in, that this is
not a mitigating circumstance. And if you do find some or you find that it is
a mitigating circumstance, that it wasn’t of sufficiently substantial quality
to call for leniency when, on the other hand, you consider the aggravating
factors and the impact to those that loved Deana Lynn Bowdoin.
(Id. at 56–57.)
The prosecutor’s statements are not misconduct. They are a response to Dixon’s
statements about the nature of prison life, not about Dixon’s conduct in prison.
Mitigating factors are “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.” Lockett, 438 U.S. at 604. The fact that prison is a “fairly boring and empty
life” has no bearing on Dixon’s character, prior record, or the circumstances of his
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offense, and the prosecutor was free to argue that it was not a mitigating circumstance or,
if the jury found otherwise, that it was entitled to little weight. The prosecutor’s remarks
did not preclude consideration of any mitigating evidence. See Lockett, 438 U.S. at 604.
iii.

Claim 12(5)(c)

Dixon alleges that the prosecutor committed misconduct by arguing that life in
prison would amount to a “free pass” for Dixon. (Doc. 27 at 183.) The prosecutor began
his penalty phase closing argument by stating:
We now know that the defendant simply is asking for a free pass. When he
asks you to sentence him to life in prison with the possibility of parole after
the expiration of 25 calendar years, we know that he’s asking for a free
pass, because you know he is serving, according to their own expert, a
sentence of approximately 175 years. So a life sentence is nothing, nothing
for killing Deana Bowdoin, because he’s already going to serve it anyway.
So he’s asking you for a free pass.
(RT 1/24/08 at 47.)
Dixon objected. (Id.) At a bench conference the trial court thought the defense had
a “reasonable point,” but did not have a problem “with what you have said, because so far
it’s true. You can let it linger and leave them with the impression, but I wouldn’t make
the statement” that the jurors must give him death because that is the only way to punish
him. (Id. at 48.)
The prosecutor then continued his argument:
The defendant asks for a life sentence.
....
He told you that, well: Yes there are mitigating factors, because I’m
already sentenced to 175 years.
....
Well, that is true. There is a sentence of 175 years. But is that a
mitigating factor if you take a look at . . . the reason why he’s serving those
175 years? Well, he’s being punished for something else that he did. So in
terms of it being a mitigating factor, how can it be a mitigating factor if it’s
a punishment for . . . four counts of rape, one count of sexual abuse, one
count of kidnapping, and one count of aggravated assault?
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1
2

The State does not dispute that he is serving a sentence that was
imposed upon him by a judge for the conviction of those seven separate
offenses. But now you are being asked to look at that as a mitigating factor.

3
4
5

(Id. at 49–50.)

6

These statements do not entitle Dixon to relief. The prosecutor’s argument rested

7

on evidence of Dixon’s prior crimes and sentences and did not invite a verdict based on

8
9
10
11
12
13

emotion. See Rodden v. Delo, 143 F.3d 441, 447 (8th Cir. 1998) (“In context, the
prosecutor’s statements about the second murder being free urged the jury to impose
additional punishment for the additional crime.”); United States v. Davis, 609 F.3d 663,
687 (5th Cir. 2010) (finding no plain error where court failed to correct “prosecutor’s
argument that a life sentence would not be adequate punishment because Davis was
already serving a life sentence for drug offenses”).
e.

14
15
16
17
18
19
20
21

Dixon alleges that the cumulative effect of the prosecutor’s misconduct entitles
him to relief. (Doc. 27 at 185.) Given Dixon’s failure to demonstrate that the enumerated
errors actually involved prosecutorial misconduct, this Court cannot conclude that the
cumulative impact of the alleged misconduct “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643; see
Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of
constitutional magnitude occurred, no cumulative prejudice is possible.”).
I.

22
23
24

Claim 12(6)

Claim 13
Dixon alleges that his right to an impartial judge and a fair capital trial was

violated because at the time of his trial the Maricopa County Attorney “was
simultaneously engaged in a criminal conspiracy against the Maricopa County Superior

25

Court and its judges, including Judge Klein who presided over this case.” (Doc. 27 at

26

189.)

27

Dixon acknowledges that he did not raise this claim in state court, but argues that

28

its default is excused under Martinez by the ineffective performance of appellate and
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PCR counsel. (Id.) Martinez applies only to ineffective assistance of counsel claims.
Pizzuto, 783 F.3d at 1177. Because Dixon does not show cause for his default of the
claim in state court, and because he does not show a fundamental miscarriage of justice,
Claim 13 is barred from federal review and will be denied.
J.

Claim 14
Dixon alleges that the Arizona Supreme Court’s failure to reduce Dixon’s

sentence to life following independent review was error in violation of his Eighth and
Fourteenth Amendment rights. (Doc. 27 at 195.) He contends that the especially cruel
aggravating factor was not proved at trial because the evidence did not show beyond a
reasonable doubt that Deana suffered mental or physical pain before she died.
On direct appeal, the Arizona Supreme Court reasoned:
A murder is especially cruel under A.R.S. § 13–751(F)(6) when the
victim consciously “suffered physical pain or mental anguish during at least
some portion of the crime and [ ] the defendant knew or should have known
that the victim would suffer.” State v. Morris, 215 Ariz. 324, 338, ¶ 61, 160
P.3d 203, 217 (2007). We find especial mental cruelty here. Deana surely
must have suffered mental anguish while being raped, hit, and strangled,
and Dixon should have known that the victim would suffer such anguish.
Dixon, 226 Ariz. at 556, 250 P.3d at 1185.14
Dixon asserts that in reaching this conclusion, the Arizona Supreme Court
unreasonably applied clearly established federal law and made an unreasonable factual
determination.
Whether a state court misapplied an aggravating factor to the facts of a case is a
question of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal habeas
review of a state court’s application of an aggravating factor is limited to determining
whether the state court’s finding was so arbitrary or capricious as to constitute an

25
26
27
28

14

Because the court found that the evidence supported a finding of mental cruelty,
which is sufficient to establish the (F)(6) factor, it did not consider whether the murder
was also especially physically cruel or heinous. Dixon, 226 Ariz. at 556, n.5, 250 P.3d at
1185.
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independent due process or Eighth Amendment violation. Id. In Jeffers, the Supreme
Court held that the appropriate standard of federal habeas review of a state court’s
application of an aggravating circumstance is the “rational factfinder” standard:
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found” the aggravating factor to exist. Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In the aggravation portion of the penalty phase, Dr. Keen testified that Deana’s
injuries, including a blunt force injury to her left eye, both manual and ligature
strangulation, and a scratch on her neck indicating that she struggled to remove the
ligature, were consistent with a scenario in which she was alive for four to five minutes
during the attack. (RT 1/16/08 43–44, 56–57.) While being strangled, it would have taken

12

a minute to a minute and a half for her to reach unconsciousness. (Id.) Based on this

13

testimony, Deana would have experienced physical pain during the attack and, as the

14

Arizona Supreme Court found, she would have “suffered mental anguish while being

15

raped, hit, and strangled.” Dixon, 226 Ariz. at 556, 250 P.3d at 1185.

16

Dixon contends that the evidence does not conclusively show that Deana was

17

raped or that she was conscious during the attack. (Doc. 27 at 200–01.) However,

18

viewing the evidence in the light most favorable to the prosecution, a rational trier of fact

19

could have determined, as the jurors and the Arizona Supreme Court concluded based on

20

Dr. Keen’s testimony describing her injuries and the manner in which she was killed, that

21

Deana was conscious and suffered mental pain during the attack. Jeffers, 497 U.S. 764,

22

780. Claim 14 is denied.

23

K.

Claim 15

24

Dixon alleges that he was denied the effective assistance of counsel on appeal

25

when appellate counsel failed to raise several “nonfrivolous” claims. (Doc. 27 at 201.)

26

These claims of ineffective assistance of appellate counsel are procedurally

27

defaulted because Dixon failed to raise them in state court. Dixon asserts, however, that

28

pursuant to Martinez, 132 S. Ct. 1309, his default of the claims is excused by the
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ineffective assistance of his post-conviction counsel.
The Ninth Circuit has summarized the holding in Martinez as follows:
a petitioner may establish cause for procedural default of a trial [ineffective
assistance of counsel] claim, where the state (like Arizona) required the
petitioner to raise that claim in collateral proceedings, by demonstrating
two things: (1) “counsel in the initial-review collateral proceeding, where
the claim should have been raised, was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984),” and (2) “the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit.”
Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S. Ct. at 1318);
see Nguyen, 736 F.3d at 1294–95 (extending Martinez to procedurally defaulted claims of
ineffective assistance of appellate counsel).

12

In order to determine whether post-conviction counsel’s performance excused the

13

procedural default of Dixon’s claims of ineffective assistance of appellate counsel, the

14

Court must determine whether those claims are substantial or have some merit. See

15

Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (“To establish that PCR counsel

16

was ineffective, Sexton must show that trial counsel was likewise ineffective.”).

17

Ineffective assistance of appellate counsel claims are evaluated under the standard

18

set forth in Strickland. See Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010)

19

(citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). First, Dixon must show that

20

appellate counsel’s performance was objectively unreasonable, which requires Dixon to

21

demonstrate that counsel acted unreasonably in failing to discover and brief a merit-

22

worthy issue. Id. Second, Dixon must show prejudice, which in this context means he

23

must demonstrate a reasonable probability that, but for appellate counsel’s failure to raise

24

the issue, he would have prevailed in his appeal. Id.

25

Dixon cannot demonstrate that his claims of ineffective assistance of appellate

26

counsel are substantial because the claims appellate counsel failed to raise were without

27

merit. Appellate counsel therefore did not perform incompetently by failing to raise the

28

claims, and Dixon suffered no prejudice from counsel’s performance. See Jones v. Smith,
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231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (finding no prejudice when appellate counsel
fails to raise an issue on direct appeal that is not grounds for reversal); Miller v. Kenney,
882 F.2d 1428, 1434 (9th Cir. 1989) (explaining that appellate counsel remains above an
objective standard of competence and does not cause prejudice when he declines to raise
a weak issue on appeal); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to
raise a meritless argument does not constitute ineffective assistance.”).
With respect to several of the allegations of ineffective assistance of appellate
counsel, Claims 15(1), (2), (3), (4), and (6), the Court has considered and denied the
underlying claims as meritless or barred from review.15 Appellate counsel did not
perform ineffectively by failing to raise the claims. Jones v. Smith, 231 F.3d at 1239 n.8;
Miller, 882 F.2d at 1434; Boag, 769 F.2d at 1344. The Court will now consider the
remaining subclaims.

13

1.

14

Dixon alleges that appellate counsel performed ineffectively by failing to raise a

15

claim challenging the admissibility of the State’s rebuttal testimony at sentencing. (Doc.

16

27 at 209.)

Claim 15(5)

17

As previously discussed, James Aiken, a corrections expert, testified in mitigation

18

that Dixon did not pose a threat of future dangerousness because he was serving life

19

sentences and could be managed within the prison system. (RT 1/23/08 at 40, 47.) The

20

trial court allowed the State to call Dr. Kimberly Carroll, a forensic psychologist, as an

21

expert witness in rebuttal. She testified that Dixon’s more-recent jail records showed he

22

had the potential to act violently in the future. (See id. at 104–05.) Dixon contends that

23
24
25
26
27
28

15

In subclaim (1) Dixon alleges that appellate counsel performed ineffectively by
failing to raise any issues regarding Dixon’s competency. In subclaim (2), he alleges that
appellate counsel failed to challenge the testimony of Andrea Salazar Opper on the
grounds that it violated the Ex Post Facto Clause and Dixon’s rights to due process and a
fair trial. In subclaim (3), he alleges that appellate counsel failed to challenge advisory
counsel’s role in undermining Dixon’s mitigation. In subclaim (4), he alleges that
appellate counsel performed ineffectively by failing to raise claims of prosecutorial
misconduct. Finally, in subclaim (6) he alleges that appellate counsel performed
ineffectively by failing to argue that the trial court’s impartiality was affected by the
ongoing conspiracy of the Maricopa County Prosecutor’s Office.
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Dr. Carroll’s testimony “violated the scope of proper rebuttal and expert testimony” by
opining on the prison’s ability to manage Dixon’s conduct. (Doc. 27 at 209.) He argues
that if appellate counsel had raised the issue, there was a reasonable probability that
Dixon’s death sentence would have been overturned. (Id.)
Appellate counsel did not perform ineffectively by failing to raise this claim. The
Arizona Supreme Court would not have held that the trial court abused its discretion by
admitting the testimony. See State v. Moody, 208 Ariz. 424, 453, 94 P.3d 1119, 1148
(2004). Contrary to Dixon’s argument, the testimony was proper rebuttal of Aiken’s
testimony that Dixon could be managed within the prison system without violence. Aiken
testified that the prison system could successfully “manage” Dixon. Dr. Carroll rebutted
this evidence with testimony showing that Dixon, whose jail record included infractions

12

related to his possession of razor blades, posed a threat of violence even while

13

incarcerated. (See RT 1/23/08 at 101–04.)

14

2.

15

Dixon alleges that appellate counsel performed ineffectively by failing to raise a

16

claim alleging that Dixon was tried under a constitutionally infirm statute and that the

17

State’s notice of intent to seek death violated the Ex Post Facto Clause. (Doc. 27 at 211.)

18

The underlying claim is meritless, so appellate counsel was not ineffective in failing to

19

raise it.

Claim 15(7)

20

The indictment charged Dixon with first-degree murder committed on or about

21

January 7, 1978, in violation of A.R.S. §§ 13-451, 13-452 and 13-453. (ROA 1.) On

22

March 28, 2003, the State provided notice of its intent to seek the death penalty, citing

23

three aggravating circumstances under the current statute, A.R.S. § 13-703(F1), (F2), and

24

(F6). (ROA 29.)

25

In 1978, the Arizona Supreme Court held that the portion of the capital sentencing

26

statute that restricted mitigation to the use of statutorily defined circumstances was

27

unconstitutional in light of Lockett. State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253,

28

1257 (1978). The court upheld the remainder of the capital sentencing statute. Id.
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Subsequently, the Arizona legislature amended A.R.S. § 13-454 to provide for
consideration of any relevant mitigation. Accordingly, Dixon was tried under a
constitutional statute and given the benefit of Lockett and Watson at the time of his
sentencing.
Dixon’s ex post facto argument also fails because he was not disadvantaged by the
post-Lockett changes to Arizona’s sentencing scheme. See Weaver v. Graham, 450 U.S.
24, 29 (1981) (for a penal law to be ex post facto “it must be retrospective, that is, it must
apply to events occurring before its enactment, and it must disadvantage the offender
affected by it.”) (footnotes omitted).

10
11

Finally, Dixon asserts that “[t]he changes in Arizona’s law as a result of Ring were
substantive.” (Doc. 27 at 227.) The United States Supreme Court has held otherwise.

12

Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (“Ring’s holding is properly classified as

13

procedural”). “A rule is substantive rather than procedural if it alters the range of conduct

14

or the class of persons that the law punishes.” Id. The changes made by the Arizona

15

legislature following Ring did neither. Rather, they regulated “only the manner of

16

determining the defendant’s culpability.” Id.

17

L.

Claim 16

18

Dixon alleges that he will not be competent to be executed. (Doc. 27 at 212.)

19

Pursuant to Martinez–Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir.1997), aff’d, 523

20

U.S. 637 (1998), a claim of incompetency for execution raised in a first habeas petition

21

“must be dismissed as premature due to the automatic stay that issues when a first

22

petition is filed.” If again presented to the district court once the claim becomes ripe for

23

review, it will not be treated as a second or successive petition. See id. at 643–44; Panetti

24

v. Quarterman, 551 U.S. 930, 947 (2007). Therefore, the Court will dismiss Claim 16,

25

without prejudice, as premature.

26

M.

Claim 17

27

Dixon alleges that he was tried and convicted under a constitutionally infirm

28

statute, and sentenced under the State’s new aggravating factors, in violation of the Ex
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3
4
5
6
7

Post Facto Clause. (Doc. 27 at 223.) Dixon did not present this claim in state court. (Id.)
He contends that under Martinez its default can be excused by the ineffective assistance
of appellate and PCR counsel. (Id.) As discussed above, Martinez is available only to
excuse the default ineffective assistance of counsel claims. Pizzuto, 783 F.3d at 1177.
Claim 17 is barred from federal review. Therefore, this claim is also without merit.
N.

Claims 18–29
On direct appeal Dixon raised, and the Arizona Supreme Court denied, a series of

8

challenges to his death sentence and to the constitutionality of Arizona’s death penalty

9

scheme. Dixon, 226 Ariz. at 556–59, 250 P.3d at 1185–88. The Arizona Supreme Court’s

10

rejection of the claims was neither contrary to nor an unreasonable application of clearly

11

established federal law. The claims will be denied.

12

1.

13

Petitioner alleges that Arizona’s requirement that mitigating factors be proven by a

14

preponderance of the evidence unconstitutionally prevents the jury from considering all

15

mitigating evidence. (Doc. 27 at 228.)

Claim 18

16

In Walton v. Arizona, 497 U.S. 639, 651 (1990), overruled on other grounds by

17

Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court rejected the argument that

18

“Arizona’s allocation of the burdens of proof in a capital sentencing proceeding violates

19

the Constitution.” 497 U.S. at 651. Claim 18 is denied.

20

2.

21

Dixon alleges that Arizona’s “especially heinous, cruel, or depraved” aggravating

22

circumstance is unconstitutionally vague because it does not narrow the class of death-

23

eligible offenders. (Doc. 27 at 230.) Rulings of both the Ninth Circuit and the United

24

States Supreme Court have upheld Arizona’s death penalty statute against allegations that

25
26
27
28

Claim 19

particular aggravating factors, including the (F)(6) factor, do not adequately narrow the
sentencer’s discretion. See Jeffers, 497 U.S. at 774–77; Walton, 497 U.S. at 652–56.
In Walton the Supreme Court held that the “especially heinous, cruel or depraved”
aggravating circumstance was facially vague but the vagueness was remedied by the
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Arizona Supreme Court’s clarification of the factor’s meaning. 497 U.S. at 654. Dixon
contends, however, that Walton was premised on the fact that at the time of the decision
Arizona judges, rather than juries, made the finding that a defendant was eligible for the
death sentence, and judges are presumed to know and apply the law. Id. at 653.
Dixon

argues

that under

jury

sentencing the (F)(6)

factor becomes

unconstitutionally vague both facially and as applied. (Doc. 27 at 233.) Respondents
contend that the jury instruction provided by the court cured any vagueness in the
statutory language. (Doc. 36 at 106.) The Court agrees.
The trial court provided the following instruction on the especially cruel prong of
the (F)(6) factor.
The second aggravating factor the State alleges is that the defendant
committed the offense in an especially heinous, cruel or depraved manner.
All first degree murders are to some extent heinous, cruel or depraved.
However, this aggravating circumstance cannot be found to exist unless the
State has proved beyond a reasonable doubt that the murder was especially
cruel, especially heinous or especially depraved. Especially means
unusually great or significant. The terms especially cruel or especially
heinous or depraved are considered separately, therefore the presence of
any one circumstance is sufficient to establish this aggravating
circumstance. However, to find that this aggravating circumstance is
proven you must find that especially cruel has been proven unanimously
beyond a reasonable doubt.
The term cruel focuses on the victim’s pain and suffering. To find
that the murder was committed in an especially cruel manner you must find
that the victim consciously suffered extreme physical or mental pain,
distress or anguish prior to death. The defendant must know or should have
known that the victim would suffer.

23
24
25
26
27
28

(RT 1/17/08 at 26–27.)
There is no clearly established federal law holding that jury instructions based on
the Arizona Supreme Court’s narrowing construction are inadequate, and Dixon does not
challenge the adequacy of the trial court’s instruction. Cf. State v. Anderson, 210 Ariz.
327, 352, 111 P.3d 369, 394 (2005) (explaining that jury instructions were not
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unconstitutionally vague, but provided a sufficiently narrow construction to the facially
vague statutory terms). The Arizona Supreme Court’s rejection of this claim does not
entitle Dixon to habeas relief. Claim 19 is denied.
3.

5
6
7
8

Dixon alleges that the trial court’s failure to require a special verdict form violated
his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. 27 at 235.)
Dixon concedes the claim is not supported by clearly established federal law. (Doc. 39 at
95.) Claim 20 is denied.

9

4.

10
11

Claim 20

Claim 21

Dixon alleges that the death penalty is categorically cruel and unusual punishment.
(Doc. 27 at 236.) There is no clearly established federal law supporting this claim. See

12

Gregg v. Georgia, 428 U.S. 153, 187 (1976). Dixon asserts that empirical evidence has

13

eroded the death penalty’s justifications of deterrence and retribution, so that at the time

14

of his sentencing these goals were not met by the Arizona statute. (Doc. 27 at 237.) The

15

Supreme Court has not accepted Dixon’s argument or overruled Gregg. See, e.g., Hall v.

16

Florida, 134 S. Ct. 1986, 1992–93 (2014).

17

5.

18

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth and

19

Fourteenth Amendments because it does not sufficiently channel the discretion of the

20

sentencing authority. (Doc. 27 at 237.) The Ninth Circuit has rejected the contention that

21

Arizona’s death penalty statute is unconstitutional because it “does not properly narrow

22

the class of death penalty recipients.” Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir.

23

1998).

Claim 22

24

6.

25

Dixon alleges that the trial court’s instructions unconstitutionally limited the

26

mitigation the jury could consider in violation of his Fifth, Sixth, Eighth, and Fourteenth

27

Amendment rights. (Doc. 27 at 238.) The claim is without merit.

28

Claim 23

At the beginning of the mitigation phase of trial, the court gave the jurors
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1
2
3
4
5
6
7
8
9
10

preliminary instructions, including the following: “You must not be influenced at any
point in these proceedings by sentiment, conjecture, passion, sympathy, prejudice, public
opinion or public feeling.” (RT 1/22/08 at 41.)
The court then instructed the jurors that:
Mitigating circumstances may be any factors presented by the
defendant or the State at any phase of the trial that are relevant in
determining whether to impose life imprisonment, including any aspect of
the defendant’s character, propensities, tendencies or inclinations, or
record, and any of the circumstances of the offense and any other factor you
find relevant to your individual consideration.
(Id. at 42–43.)

11

The jury was further instructed that mitigation may be “any relevant factor you

12

individually determine is sufficiently substantial to call for life imprisonment.” (Id. at 45–

13

46.) The court continued, “Mitigating circumstances are factors that in fairness or mercy

14

may reduce the defendant’s culpability and blameworthiness and suggest that life in

15

prison is the appropriate punishment.” (Id. at 46.) At the close of the mitigation phase, the

16

court again instructed the jury “to decide the case without sympathy, bias, or prejudice.”

17

(RT 1/24/08 at 77.)

18

Dixon contends that these instructions violated the principle that the sentencer in a

19

capital case must “not be precluded from considering, as a mitigating factor, any aspect

20

of a defendant’s character or record and any of the circumstances of the offense.” Lockett,

21
22
23
24
25
26
27
28

438 U.S. at 604–05; see Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (explaining that
sentencer must be allowed to “give effect to” proffered mitigation), overruled on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002). The Court disagrees.
According to Dixon, the trial court’s instructions, by directing the jurors not to be
influenced by sympathy, “limit[ed] the mitigating evidence considered by the jury.”
(Doc. 27 at 240.) The reference to sympathy, bias, and prejudice, taken in context with
the rest of the instructions, did not prevent the jury from considering or giving effect to
any proffered mitigating evidence. The court properly defined mitigating circumstances,
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1
2
3
4
5
6
7
8
9

without placing any limits on the jury’s assessment of the evidence. See Kansas v. Marsh,
548 U.S. 163, 175 (2006) (“[O]ur precedents confer upon defendants the right to present
sentencers with information relevant to the sentencing decision and oblige sentencers to
consider that information in determining the appropriate sentence. The thrust of our
mitigation jurisprudence ends here.”). Claim 23 is denied.
7.

Claim 24

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth and
Fourteenth Amendments because it does not set forth objective standards to guide the
sentencer in weighing the aggravating factors against the mitigating circumstances and

10

therefore no meaningful distinction exists between capital and non-capital cases. (Doc. 27

11

at 240.) The Supreme Court has held that a capital sentencer “need not be instructed how

12

to weigh any particular fact in the capital sentencing decision.” Tuilaepa v. California,

13

512 U.S. 967, 979 (1994). Claim 24 is denied.

14

8.

15

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth and

16

Fourteenth Amendments because it requires a death sentence whenever an aggravating

17

circumstance and no mitigating circumstances are found. The Supreme Court has rejected

18

the claim that Arizona’s death penalty statute is impermissibly mandatory and creates a

19

presumption in favor of the death penalty. Walton, 497 at 651–52; see also Kansas v.

20

Marsh, 548 U.S. at 173–74. Claim 25 is denied.

Claim 25

21

9.

Claim 26

22

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth

23

Amendment because it denies capital defendants the benefit of proportionality review.

24

(Doc. 27 at 242.) There is no federal constitutional right to proportionality review of a

25

death sentence. McCleskey v. Kemp, 481 U.S. 279, 306 (1987) (citing Pulley v. Harris,

26

465 U.S. 37, 43–44 (1984)). The Ninth Circuit has explained that the interest implicated

27

by proportionality review—the “substantive right to be free from a disproportionate

28

sentence”—is protected by the application of “adequately narrowed aggravating
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1
2
3
4
5
6
7
8
9

circumstance[s].” Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir. 1996). Claim 26 is
denied.
10.

Claim 27

Dixon alleges that Arizona’s capital sentencing scheme violates the Sixth, Eighth,
and Fourteenth Amendments because it does not require the prosecution to prove that
aggravating circumstances outweigh mitigating circumstances beyond a reasonable
doubt. (Doc. 27 at 243.) The Court disagrees. The State has the burden of proving the
existence of aggravating circumstances beyond a reasonable doubt. See State v. Jordan,
126 Ariz. 283, 286, 614 P.2d 825, 828 (1980). However, the Constitution does not

10

require that a death penalty statute set forth specific standards for a capital sentencer to

11

follow in their consideration of aggravating and mitigating circumstances. See Zant v.

12

Stephens, 462 U.S. 862, 875 (1983); see also Tuilaepa, 512 U.S. at 979–80 750 (1994)

13

(stating that the Constitution does not require that a capital sentencer be instructed in how

14

to weigh any particular fact in the capital sentencing decision); Franklin v. Lynaugh, 487

15

U.S. 164, 179 (1988) (rejecting the notion that a specific method for balancing

16

aggravating and mitigating factors is constitutionally required). Nor does the Constitution

17

require that a specific weight be given to any particular mitigating factor. See Harris v.

18

Alabama, 513 U.S. 504, 512 (1995). Thus, the Constitution does not require the capital

19

sentencer to find that the aggravating circumstances outweigh mitigation beyond a

20

reasonable doubt. Claim 27 is denied. Claim 32 (Doc. 27 at 250–51), which is identical to

21

Claim 27 (see Doc. 39 at 106), is also denied.

22

11.

Claim 28

23

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth and

24

Fourteenth Amendments because it affords the prosecutor unbridled discretion to seek the

25

death penalty. (Doc. 27 at 245.) Prosecutors have wide discretion in deciding whether to

26

seek the death penalty. See McCleskey, 481 U.S. at 296–97; Gregg, 428 U.S. at 199

27

(explaining that pre-sentencing decisions by actors in the criminal justice system that may

28

remove an accused from consideration for the death penalty are not unconstitutional).
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1
2
3
4

The Ninth Circuit has rejected the argument that Arizona’s death penalty statute is
constitutionally infirm because “the prosecutor can decide whether to seek the death
penalty.” Smith, 140 F.3d at 1272. Claim 28 is denied.
12.

5
6
7
8
9

Claim 29

Dixon alleges that Arizona’s death penalty scheme discriminates against poor
young males. (Doc. 27 at 246.) Clearly established federal law holds that “a defendant
who alleges an equal protection violation has the burden of proving ‘the existence of
purposeful discrimination’” and must demonstrate that the purposeful discrimination
“had a discriminatory effect” on him. McCleskey, 481 U.S. at 292 (quoting Whitus v.

10

Georgia, 385 U.S. 545, 550 (1967)). Therefore, to prevail on this claim, Dixon “must

11

prove that the decisionmakers in his case acted with discriminatory purpose.” Id. Dixon

12

does not attempt to meet this burden. He offers no evidence specific to his case that

13

would support an inference that his sex, age, or economic status played a part in his

14

sentence. See Richmond v. Lewis, 948 F.2d 1473, 1490–91 (1990), vacated on other

15

grounds, 986 F.2d 1583 (9th Cir. 1993) (holding statistical evidence that Arizona’s death

16

penalty is discriminatorily imposed based on race, sex, and socioeconomic background is

17

insufficient to prove that decision-makers in petitioner’s case acted with discriminatory

18

purpose). Claim 29 is denied.

19

O.

Claims 30–31, 33–36

20

Dixon’s remaining claims were not presented in state court. Their default is not

21

excused under Martinez. Pizzuto, 783 F.3d at 1177. They are also plainly meritless. 28

22

U.S.C. § 2254(b)(2).

23

1.

Claim 30

24

Dixon alleges that his rights under the Fifth, Sixth, Eighth, and Fourteenth

25

Amendments were violated because the aggravating factors alleged by the State were not

26

supported by findings of probable cause at the indictment stage. (Doc. 27 at 247.)

27

While the Due Process Clause guarantees defendants a fair trial, it does not require

28

states to observe the Fifth Amendment’s provision for presentment or indictment by a
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2
3
4
5
6
7
8
9
10
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grand jury. Hurtado v. California, 110 U.S. 516, 538 (1884); Branzburg v. Hayes, 408
U.S. 665, 688 n. 25 (1972). The Arizona Supreme Court has expressly rejected the
argument that Ring requires that aggravating factors be alleged in an indictment and
supported by probable cause. McKaney v. Foreman, 209 Ariz. 268, 270, 100 P.3d 18, 20
(2004). Dixon cites no authority to the contrary.
2.

Claim 31

Dixon alleges that his constitutional rights will be violated because he will not
receive a fair clemency proceeding. (Doc. 27 at 249.) He contends the proceeding will
not be fair and impartial based on the Clemency Board’s selection process, composition,
training and procedures, and because the Attorney General will act as the Board’s legal
advisor and as an advocate against him. (Id. at 259–50.)

12

This claim is not cognizable on federal habeas review. Habeas relief can only be

13

granted on claims that a prisoner “is in custody in violation of the Constitution or laws or

14

treaties of the United States.” 28 U.S.C. § 2254(a). Petitioner’s challenge to state

15

clemency procedures and proceedings does not represent an attack on his detention and

16

thus does not constitute a proper ground for relief. See Franzen v. Brinkman, 877 F.2d 26,

17

26 (9th Cir. 1989) (per curiam); see also Woratzeck v. Stewart, 118 F.3d 648, 653 (9th

18

Cir. 1997) (per curiam) (explaining that clemency claims are not cognizable under federal

19

habeas law).

20

3.

21

Dixon alleges that Arizona’s capital sentencing scheme violates the Eighth and

22

Fourteenth Amendments because it requires a defendant to affirmatively prove that the

23

sentencing body should spare his life.

Claim 33

24

In Walton, 497 U.S. at 651, the Supreme Court rejected the argument that

25

“Arizona’s allocation of the burdens of proof in a capital sentencing proceeding violates

26

the Constitution.” See also Delo v. Lashley, 507 U.S. 272, 275–76 (1993) (referring to

27

Walton and stating that the Court had “made clear that a State may require the defendant

28

‘to bear the risk of nonpersuasion as to the existence of mitigating circumstances’”).
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2
3
4
5
6
7
8
9
10
11

4.

Claim 34

Dixon alleges that execution after more than five years on Arizona’s death row,
and almost thirty years in prison, constitutes cruel and unusual punishment under the
Eighth and Fourteenth Amendments. (Doc. 27 at 252.)
The United States Supreme Court has never held that lengthy incarceration prior to
execution amounts to cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045
(1995) (mem.) (Stevens, J. & Breyer, J., discussing denial of certiorari and noting the
claim has not been addressed); Thompson v. McNeil, 556 U.S. 1114 (2009) (mem.)
(Stevens, J. & Breyer, J., dissenting from denial of certiorari; Thomas, J., concurring,
discussing Lackey issue). Circuit courts, including the Ninth Circuit, have also held that
prolonged incarceration under a sentence of death does not violate the Eighth

12

Amendment. See McKenzie v. Day, 57 F.3d 1493, 1493–94 (9th Cir. 1995) (en banc);

13

White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996); Stafford v. Ward, 59 F.3d 1025, 1028

14

(10th Cir. 1995).

15

5.

16

Dixon alleges that the trial court improperly permitted the introduction of victim

17

impact evidence in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth

18

Amendments. (Doc. 27 at 263.) Dixon claims that the victims’ statements violated both

19

Payne v. Tennessee, 501 U.S. 808 (1991), and Crawford v. Washington, 541 U.S. 36

20

(2004).

Claim 35

21

In the penalty phase of Dixon’s trial, Deana’s mother, father, and sister made

22

statements to the jury. (RT 1/23/08 at 14–23.) Before they made their statements the trial

23

court instructed them that they were allowed only “to comment about the impact this

24

tragedy has had on their lives” and about the victim’s character, but they were not

25

allowed “to make a recommendation or request any kind of specific punishment.” (Id. at

26

13–14). The statements comported with the judge’s instructions, with the family

27

members focusing on the character of the victim and the effect of her loss. (Id. at 14–23.)

28

This type of victim impact statement is not prohibited by Payne, which bars only
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2
3
4
5
6
7
8
9
10
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characterizations and opinions about the crime, the defendant, or the appropriate
sentence. 501 U.S. at 830 n.2.
Dixon also argues that his confrontation rights under Crawford were violated
because he was not allowed to cross-examine the family members. (Doc. 27 at 266.) As
previously noted, Crawford held that that the government cannot introduce out-of-court
testimonial evidence against a defendant in a criminal trial unless the declarant is
unavailable at trial and the defendant had a prior opportunity for cross-examination. 541
U.S. at 68. There is no clearly established federal law holding that Crawford applies at
sentencing, and the circuit courts have rejected the argument. See, e.g., United States v.
Monteiro, 417 F.3d 208, 215 (1st Cir. 2005) (“Crawford does not apply to sentencing”);
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005) (explaining Crawford

12

provides no basis to reconsider Supreme Court precedent establishing the permissibility

13

“of out-of-court statements at sentencing”); United States v. Kirby, 418 F.3d 621, 627–28

14

(6th Cir.2005); United States v. Fleck, 413 F.3d 883, 894 (8th Cir.2005); United States v.

15

Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005).

16

6.

17

Dixon alleges that his conviction and sentence must be vacated due to the

18

cumulative prejudicial effect of the errors in this case. (Doc. 27 at 267.) “Because there is

19

no single constitutional error in this case, there is nothing to accumulate to the level of a

20

constitutional violation.” Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002).

21

Claim 36

IV. EVIDENTIARY DEVELOPMENT

22

Dixon’s requests for evidentiary development encompass each of the 36 claims

23

raised in his habeas petition. (Doc. 49; see Doc. 27.) The scope of the requests, which

24

suggests an attempt to relitigate Dixon’s trial and sentencing, is not consonant with the

25

purpose of habeas review. “Although state prisoners may sometimes submit new

26

evidence in federal court, AEDPA’s statutory scheme is designed to strongly discourage

27

them from doing so.” Pinholster, 563 U.S. at 186. A federal court in habeas review is

28

“not an alternative forum for trying facts and issues which a prisoner made insufficient
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3
4
5
6
7
8
9
10
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effort to pursue in state proceedings.” (Michael) Williams, 529 U.S. 420, 437 (2000); see
Richter, 562 U.S. at 103 (“Section 2254(d) is part of the basic structure of federal habeas
jurisdiction, designed to confirm that state courts are the principal forum for asserting
constitutional challenges to state convictions”); Wainwright v. Sykes, 433 U.S. 72, 90
(1977) (“[T]he state trial on the merits [should be] the ‘main event,’ so to speak, rather
than a ‘tryout on the road’ for what will later be the determinative federal habeas
hearing”). The Court assesses the requested evidentiary development with these
principles in mind.
Dixon asserts that Pinholster only limits the Court’s ability to allow evidentiary
development of claims that were “fully developed” in state court. (Doc. 49 at 1–2.) He
also argues that “Pinholster said nothing about federal habeas litigation under §

12

2254(d)(2), or fact development under § 2254(e).” (Id. at 2–3.) Dixon’s arguments are

13

not supported by Pinholster or subsequent cases.

14

First, the Ninth Circuit has held that “Pinholster and the statutory text make clear

15

that this evidentiary limitation is applicable to § 2254(d)(2) claims as well.”

16

Gulbrandson, 738 F.3d at 993 n.6.

17

Next, Dixon attempts to bolster his argument by inaccurately quoting Pinholster

18

itself, inserting the qualifying phrase “fully developed,” which does not appear in the

19

opinion.16 (Doc. 49 at 1.)

20
21
22
23
24
25
26
27
28

16

In his motion for evidentiary development, Dixon writes:
In Pinholster, the Court held that “evidence introduced in federal court has
no bearing on § 2254(d)(1) review. If a fully developed claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record that was before the
state court.”
(Doc. 49 at 1) (emphasis added).
The misquoted passage actually reads, “evidence introduced in federal court has
no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on
the record that was before that state court.” 563 U.S. at 185.
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3
4
5
6
7
8
9
10
11

To the extent it does not rest on a manufactured quotation, Dixon’s interpretation
of Pinholster has been rejected by the courts. “While allowing a petitioner to supplement
an otherwise sparse trial court record may be appealing, especially where he diligently
sought to do so in state court, the plain language of Pinholster and Harrington precludes
it.” Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th Cir. 2013); see Atkins v. Clarke, 642
F.3d 47, 49 (1st Cir. 2011) (rejecting argument that a state court did not adjudicate claim
on the merits unless petitioner was afforded a “full and fair evidentiary hearing”); see
also Donaldson v. Booker, 505 Fed.Appx. 488, 493 (6th Cir. 2012) (finding Pinholster
applies in cases where “petitioner requested an evidentiary hearing in state court and was
thereby not at fault for failure to develop the factual record in state court”); Taylor v.
Simpson, No. 06-CV-181-JBC, 2012 WL 404929, at *3 (E.D.Ky. February 6, 2012)

12

(“Notwithstanding Taylor’s argument that Pinholster addressed only a fully developed

13

claim, adjudicated on the merits in state court, and decided in federal court under §

14

2254(d)(1) and that Pinholster did not concern habeas litigation under § 2254(d)(2), he is

15

not entitled to discovery on his Batson claim under 2254(d)(2).”); Lewis v. Ayers, No. 02-

16

13-KJM-GGH-DP, 2011 WL 2260784, at *5–6 (E.D.Cal. June 7, 2011) (“Nor will an

17

assertion—that because the state record was incomplete, there was no adjudication on the

18

merits—operate to avoid the [Pinholster] holding. An adjudication on the merits is just

19

that regardless of one’s view on the completeness of the record on which the ruling was

20

made.”).

21

As discussed next, evidentiary development of Dixon’s claims is foreclosed under

22

Pinholster and the applicable rules.

23

A.

Discovery

24

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”

25

Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356,

26

1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that:

27
28

A judge may, for good cause, authorize a party to conduct discovery under
the Federal Rules of Civil Procedure and may limit the extent of discovery.
. . . A party requesting discovery must provide reasons for the request. The
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3
4
5
6
7
8
9
10
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request must also include any proposed interrogatories and requests for
admission, and must specify any requested documents.
Rule 6(a) and (b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (emphasis
added).
“[A] district court abuse[s] its discretion in not ordering Rule 6(a) discovery when
discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying
claim.” Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v.
Wood, 114 F.3d 1002, 1009 (9th Cir. 1997)). However, courts should not allow a
petitioner to “use federal discovery for fishing expeditions to investigate mere
speculation.” Calderon v. United States Dist. Ct. for the N. Dist. of Cal. (Nicolaus), 98
F.3d 1102, 1106 (9th Cir. 1996); see also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir.

12

1999) (habeas corpus is not a fishing expedition for petitioners to “explore their case in

13

search of its existence”) (quoting Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.

14

1970)).

15

Whether a petitioner has established “good cause” for discovery under Rule 6(a)

16

requires a court to determine the essential elements of the petitioner’s substantive claim

17

and evaluate whether “specific allegations before the court show reason to believe that

18

the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .

19

entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286,

20

300 (1969)).

21

Dixon seeks an order directing the disclosure of “all documents, electronically

22

stored information, files and records” or “all files and reports” from seventeen different

23

institutions and agencies. (Doc. 49 at 18.) He also seeks to depose more than ninety

24

witnesses. (Id. at 19–23.) The scope of the discovery appears to encompass any entity or

25

individual with any connection to or knowledge of Dixon or his family. Dixon also seeks

26

to depose several of the jurors from his trial. (Id. at 23.) Dixon contends that the

27

information is “relevant to a clear picture of [his] personal history, mental health, and the

28

relevant mitigation that should have been gathered and presented, the composition of the
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3
4
5
6
7
8
9
10
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jury, Dixon’s and the overall effects of the acts or omissions of advisory counsel and
appointed mitigation specialist, direct appeal, and post-conviction counsel.” (Id.)
Dixon fails to show good cause for the discovery. Not surprisingly, given their
scope, Dixon’s discovery requests lack the specificity required by Rule 6. Dixon
essentially seeks to reinvestigate his case and relitigate the penalty phase of his trial. He
does not allege specific, relevant facts that might be found in the requested discovery or
obtained from the requested depositions. The discovery requests constitute the type of
“fishing expedition” Rule 6 does not sanction. See Kemp v. Ryan, 638 F.3d 1245, 1260
(9th Cir. 2011) (“[T]he desire to engage in [an improper fishing] expedition cannot
supply ‘good cause’ sufficient to justify discovery.”); Rector v. Johnson, 120 F.3d 551,
562 (5th Cir. 1997) (“Rule 6 does not, however, sanction fishing expeditions based on a

12

petitioner’s conclusory allegations.”); Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007)

13

(denying discovery request because petitioner “did not comply with the specific

14

requirements of Rule (6)(b); his request for discovery is generalized and does not indicate

15

exactly what information he seeks to obtain. A habeas proceeding is not a fishing

16

expedition”). Dixon’s generalized statements regarding the potential existence of

17

discoverable material does not constitute “good cause.”

18

Other factors preclude discovery. Dixon asserts that the requested discovery is

19

relevant to Claims 1–12, 14–16, and 36. (Doc. 49 at 23.) Claims 1, 3, 4, 6, 7, 8, 9, 12, and

20

14 were denied on the merits by the state courts. Therefore, under Pinholster, this Court’s

21

review of the state court’s decision is limited to the record before the state court, and

22

Petitioner is not entitled to evidentiary development. Pinholster, 563 U.S. at 181; see

23

State v. Runningeagle, 686 F.3d 758, 773 (9th Cir. 2012) (explaining that the petitioner

24

was “not entitled to an evidentiary hearing or additional discovery in federal court

25

because his claim is governed by 28 U.S.C. § 2254(d)(1)”).

26

The remaining claims for which Dixon seeks discovery were not presented in state

27

court. (Claims 2, 5, 10, 11, 12, 15, and 36). Dixon is not entitled to evidentiary

28

development, see Runningeagle, 686 F.3d at 773–74, and no additional information is
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2
3
4
5
6
7
8
9
10
11

necessary to resolve the claims on the merits. The claims either involve purely legal
issues or are resolvable on the state court record. Claim 15, the defaulted claim alleging
several instances of ineffective assistance of appellate counsel, is also resolvable on the
record, so evidentiary development is unnecessary. See Gray v. Greer, 800 F.2d 644, 647
(7th Cir. 1986) (explaining “it is the exceptional case” where a claim of appellate
ineffective assistance “could not be resolved on an examination of the record alone”).
Finally, the Court will deny Dixon’s request to depose jurors “regarding their
experiences related to Dixon’s trial.” (Doc. 49 at 23.) Dixon offers no suggestion as to
what information he would seek in such depositions, and the Federal Rules of Evidence
place significant limitations on the admissibility of testimony about a jury’s deliberations.
Fed. R. Evid. 606(b); see Tanner v. United States, 483 U.S. 107, 117 (1987) (noting

12

firmly established common-law rule that juror testimony is inadmissible to impeach a

13

jury verdict); Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (explaining that

14

“juror testimony about the subjective effect of evidence on the particular juror” is not

15

admissible).

16

B.

Evidentiary hearing and expansion of the record

17

While historically the district court had considerable discretion to hold an

18

evidentiary hearing to resolve disputed issues of material fact, see Townsend v. Sain, 372

19

U.S. 293, 312, 318 (1963), overruled in part by Keeney v. Tamayo–Reyes, 504 U.S. 1

20

(1992), and limited by § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1077–78 (9th Cir.

21

1999), that discretion is circumscribed by § 2254(e)(2) of the AEDPA. See Baja, 187

22

F.3d at 1077–78. Section 2254 provides that:

23
24
25
26
27
28

If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
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1
2
3

(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and

5

(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

6

28 U.S.C. § 2254(e)(2); see Williams, 529 U.S. at 437 (“If there has been no lack of

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diligence at the relevant stages in the state proceedings, the prisoner has not ‘failed to

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develop’ the facts under § 2254(e)(2)’s opening clause, and he will be excused from

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showing compliance with the balance of the subsection’s requirements.”).

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An evidentiary hearing in federal court is precluded if the petitioner’s failure to

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develop a claim’s factual basis is due to a “lack of diligence, or some greater fault,

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attributable to the prisoner or the prisoner’s counsel.” Id. at 432. A hearing is not barred

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when a petitioner diligently attempts to develop the factual basis of a claim in state court

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and is “thwarted, for example, by the conduct of another or by happenstance was denied

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the opportunity to do so.” Id.; see Baja, 187 F.3d at 1078–79.

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When the factual basis for a particular claim has not been fully developed in state

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court, a district court first determines whether the petitioner was diligent in attempting to

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develop the factual record. See Baja, 187 F.3d at 1078. The diligence assessment is an

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objective one, requiring a determination of whether a petitioner “made a reasonable

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attempt, in light of the information available at the time, to investigate and pursue claims

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in state court.” Williams, 529 U.S. at 435. For example, when there is information in the
record that would alert a reasonable attorney to the existence of certain evidence, the
attorney “fails” to develop the factual record if he does not make reasonable efforts to
sufficiently investigate and present the evidence to the state court. Id. at 438–39, 442.
Absent unusual circumstances, diligence requires that a petitioner “at a minimum,
seek an evidentiary hearing in state court in the manner prescribed by state law.”
Williams, 529 U.S. at 437. The mere request for an evidentiary hearing, however, may
not be sufficient to establish diligence if a reasonable person would have taken additional
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steps. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (finding lack of
diligence where petitioner failed to present affidavits of family members that were easily
obtained without court order and with minimal expense); Alley v. Bell, 307 F.3d 380,
390–91 (6th Cir. 2002) (finding lack of diligence where petitioner knew of and raised
claims in state court but failed to investigate all factual grounds in support of the claims);
Koste v. Dormire, 345 F.3d 974, 985–86 (8th Cir. 2003) (finding lack of diligence where
there was no effort to develop the record or assert any facts to support claim); McNair v.
Campbell, 416 F.3d 1291, 1299–1300 (11th Cir. 2005) (finding lack of diligence where
petitioner did not develop evidence available through petitioner, family members, and
literature, and did not appeal of denial of funds and hearing)
In sum, if a court determines that a petitioner has not been diligent in establishing

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the factual basis for his claims in state court, it may not conduct a hearing unless the

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petitioner satisfies one of § 2254(e)(2)’s narrow exceptions. If, however, the petitioner

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has not failed to develop the factual basis of a claim in state court, the court considers

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whether a hearing is appropriate or required under the criteria set forth in Townsend. 372

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U.S. 293; see Baja, 187 F.3d at 1078.

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Pursuant to Townsend, a federal district court must hold an evidentiary hearing in

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a § 2254 case when the facts are in dispute, the petitioner “alleges facts which, if proved,

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would entitle him to relief,” and the state court has not “reliably found the relevant facts”

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after a “full and fair evidentiary hearing” at trial or in a collateral proceeding. Id. at 312–

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13; cf. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (explaining that “an

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evidentiary hearing is not required on issues that can be resolved by reference to the state

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court record”); Schriro v. Landrigan, 550 U.S. 465, 474 (2007). In any other case in

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which diligence has been established, the district court “has the power, constrained only

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by his sound discretion, to receive evidence bearing upon the applicant’s constitutional

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claim.” Id. at 318.

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Under Rule 7 of the Rules Governing Section 2254 Cases, a federal habeas court

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is authorized to expand the record to include additional material relevant to the petition.
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Section 2254(e) (2), as amended by the AEDPA, limits a petitioner’s ability to present
new evidence through a Rule 7 motion to the same extent that it limits the availability of
an evidentiary hearing. See Cooper–Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.
2005) (applying § 2254(e)(2) to expansion of the record when intent is to bolster the
merits of a claim with new evidence) (citing Holland v. Jackson, 542 U.S. 649, 652–53
(2004) (per curiam)). Accordingly, when a petitioner seeks to introduce new affidavits
and other documents never presented in state court, he must either demonstrate diligence
in developing the factual basis in state court or satisfy the requirements of §
2254(e)(2)(A) & (B).
Petitioner seeks to expand the record with eighty-four separate exhibits. (Doc. 49
at 23–53; id., Ex’s 1–84.) The exhibits are offered in support of Claims 1–6, 8–10, 12,

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15–17, 30, 32, 33, 35, and 36. They include social history records and documents

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reflecting the activities of the defense team, including correspondence and billing

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records. Dixon seeks an evidentiary hearing on Claims 1–17, 19, and 36. (Id. at 49.)

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Claims 1, 3 (in part), 4, 8, 9, and 12 (in part) were denied on the merits in state
court. Again, evidentiary development of those claims is foreclosed by Pinholster.

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Claims 2, 5, 10, 15, 17, 30, 32, 33, 35, and 36 were not presented in state court,

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nor were certain allegations in Claim 3 and 12. Of these defaulted claims, Martinez is

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applicable only to Claim 15, alleging ineffective assistance of appellate counsel.

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As discussed above, Dixon cannot demonstrate that his claims of ineffective

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assistance of appellate counsel are substantial because the claims appellate counsel failed

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to raise were without merit. Appellate counsel therefore did not perform incompetently

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by failing to raise the claims, and Dixon suffered no prejudice from counsel’s

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performance.

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The Court has reviewed the materials with which Dixon seeks to expand the

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record and determined that their contents do not affect the Court’s analysis of Petitioner’s

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habeas claims. As detailed above, appellate counsel did not perform at a constitutionally

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ineffective level. Dixon’s attempt to excuse the default of these claims under Martinez
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fails because the underlying ineffectiveness claims are not substantial. Because the claims
are both defaulted and meritless, expansion of the record will be denied.
For the same reason, Dixon is not entitled to an evidentiary hearing. Having
reviewed the entire record, including the evidence presented by Dixon in the PCR
proceedings and in his motion to expand the record, the Court concludes that an
evidentiary hearing is not warranted. See Rule 8(a) of the Rules Governing Section 2254
Cases. Whether Dixon’s allegations of ineffective assistance of trial and appellate counsel
are “substantial” under Martinez is resolvable on the record. See Dickens v. Ryan, 740
F.3d 1302, 1321 (9th Cir. 2014) (en banc) (explaining that “a district court may take
evidence to the extent necessary to determine whether the petitioner’s claim of ineffective
assistance of trial counsel is substantial under Martinez”) (emphasis added); see also
Gray v. Greer, 800 F.2d at 647.

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Finally, Petitioner has failed to develop the factual basis of his claims in state

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court. Dixon maintains that he “demonstrated diligence.” (Doc. 49 at 16.) He requested,

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and the state court denied, an evidentiary hearing on the three claims raised in his PCR

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petition. Dixon was not diligent, however, “in developing the record and presenting, if

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possible, all claims of constitutional error,” Williams v. Taylor, 529 U.S. at 437, and he

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does not that contend the state interfered with his ability to gather the evidence he now

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seeks to present. See Dowthitt, 230 F.3d 758; Alley, 307 F.3d at 390–91; Koste, 345 F.3d

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at 985–86; McNair, 416 F.3d at 1299–1300.

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Petitioner does not argue that he can meet the exceptions to the § 2254(e)(2)

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diligence requirement. Therefore, he is not entitled to expand the record or to an

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evidentiary hearing.

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V. CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant

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cannot take an appeal unless a certificate of appealability has been issued by an

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appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases

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provides that the district judge must either issue or deny a certificate of appealability
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when it enters a final order adverse to the applicant. If a certificate is issued, the court
must state the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
Under § 2253(c)(2), a certificate of appealability may issue only when the
petitioner “has made a substantial showing of the denial of a constitutional right.” This
showing can be established by demonstrating that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner” or that the issues were “adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a
certificate of appealability will issue only if reasonable jurists could debate whether the
petition states a valid claim of the denial of a constitutional right and whether the court’s
procedural ruling was correct. Id.

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The Court finds that reasonable jurists could debate its resolution of Claim 1,

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alleging ineffective assistance of counsel based on trial counsel’s failure to challenge

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Dixon’s competence; Claim 3(A), alleging the trial court erred when it found Dixon

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competent to waive counsel and represent himself; and Claim 9, alleging that the trial

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court violated Dixon’s Eighth and Fourteenth Amendment rights by denying him the

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opportunity to adequately develop relevant mitigation evidence. For the reasons stated in

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this order, the Court finds that reasonable jurists could not debate its resolution of the

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remaining claims.

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VI. CONCLUSION

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Based on the foregoing,

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IT IS HEREBY ORDERED that Petitioner’s Petition for Writ of Habeas Corpus

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(Doc. 27) is DENIED. The Clerk of Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that the stay of execution entered by this Court on
February 12, 2014 (Doc 5), is VACATED.
IT IS FURTHER ORDERED that Petitioner’s motion for evidentiary
development (Doc. 49) is DENIED.
IT IS FURTHER ORDERED granting a certificate of appealability with respect
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to Claims 1, 3(A), and 9.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of
this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ
85007-3329.
Dated this 16th day of March, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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