McKinney v. Paskett, et al

Filing 295

MEMORANDUM DECISION & ORDER 238 Granting in part and Denying in part Third Petition for Writ of Habeas Corpus filed by Randy Lynn McKinney. Signed by Judge B. Lynn Winmill. (sb)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO RANDY LYN MCKINNEY, ) ) Petitioner, ) ) v. ) ) GREG FISHER, Warden, ) ) Respondent. ) ______________________________ )

Case No. CV 96-0177-S-BLW CAPITAL CASE MEMORANDUM DECISION AND ORDER

The Court previously dismissed several claims in this capital habeas corpus matter as procedurally defaulted and denied Petitioner's request for an evidentiary hearing. (Docket Nos. 166, 237.) Still pending from the Third Amended Petition are Claims 1(a)(d)(f), 3, 5, 6, 10-13, 14, 15, 16, 18(sentencing only), 25(sentencing), 29, and 30-32. After considering the pleadings, record, briefing, and oral argument herein, the Court concludes that Petitioner is not entitled to relief on any claims related to the guilt phase of his state court criminal trial. The Court further concludes, however, that Petitioner is entitled to relief on his claim that he was deprived of his
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Sixth Amendment right to the effective assistance of counsel at his capital sentencing proceeding. Accordingly, the Third Amended Petition will be conditionally granted in part and denied in part. The Court shall issue the Writ with respect to Petitioner's death sentence unless the State corrects the constitutional error by beginning a new sentencing hearing, or by vacating the death sentence and imposing a lesser sentence, within 180 days of the entry of judgment. Given that such relief will be granted, all other capital sentencing-related claims shall be dismissed as moot. FACTUAL BACKGROUND After hitchhiking through several states and often relying on the kindness of strangers for food and shelter, 19-year old Randy McKinney and his girlfriend Dovey Small arrived in Malad, Idaho, on April 6, 1981, and checked into a motel for the night. (State's Lodging B-9, pp. 449-50.) They intended to reunite with Small's sisters, Ada Mangum and Cathy Mangum, both of whom lived in Blackfoot, before traveling on to Montana.1 (Id. at 457.) Small did not want to stay in Idaho for any length of time because she was wanted on a felony warrant. (Id. at 457.)

To avoid confusion, in this section the Court shall refer to individuals who share the same last name only by their first names. MEMORANDUM DECISION AND ORDER - 2

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The next day Ada and Cathy recruited a friend to drive them to the motel to pick up Small and McKinney. (State's Lodging B-9, p. 451-52.) Once there, Small showed Ada a handgun that was laying on a table. (Id. at 453, 531-32.) According to Cathy, McKinney referred to this gun and said, "this is big time, no more penny ante." (State's Lodging B-10, p. 705. ) Later than same evening, Ada offered to call her friend Robert Bishop, Jr., to inquire whether he would drive Small and McKinney as far as the Interstate, where they could then hitchhike. (State's Lodging B-9, p. 458.) He called back the next morning and agreed. (Id. at 458, 460.) Cathy would later claim that while McKinney cleaned his gun and they waited for Bishop, he repeated that he was going "big time" and, also, that he was "going to blow him away." (State's Lodging B-10, p. 711-14.) When Bishop arrived, McKinney and Small loaded their personal belongings into car. After dropping Cathy off, he drove Ada, Small, and McKinney to a convenience store to buy beer, cigarettes, and sodas, and it was decided at that time that they would take a route through Arco, Idaho, toward Montana. (State's Lodging B-9, p. 550-51.) Small suggested that she could get some traveling money in Arco from Jackie Wheeless, who supposedly still owed her money for a car. (Id. at 550.)
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After drinking more beer and playing games of pool at two bars in the Arco area, the group went to the home of Denise Garner, who lived with Jackie Wheeless' son, Casey. Small was also acquainted with Casey, a 17-year-old convicted felon who had already served time in prison, from her previous stay in Idaho when she had "hid [him] out from the law a couple of times." (State's Lodging B-11, p. 916.) Casey agreed to show the group where his mother lived. Small and Ada rode with Casey in his car, while Bishop followed in his car with McKinney. On the way, Small told Casey that she and McKinney "had a piece," and that if Jackie's husband "gave her trouble ... she would blow his crap away." (State's Lodging B-11, p. 883). At one point, Small retrieved the gun from McKinney and fired a shot out of the window, aiming at an occupied house. (Id.) When they arrived at Jackie's house, McKinney took the gun from Small because he "didn't want her doing something stupid." (State's Lodging B-13, p. 1353.) The ensuing discussion in the Wheeless home was heated, and Jackie refused to pay Small any money. (State's Lodging B-9, p. 471.) Empty-handed, the group decided to return to Casey and Denise Garner's home. The Conspiracy Casey would later testify that on the ride back, Small told him that she and
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McKinney were going to kill Robert Bishop because he had a lot of money, credit cards, and a nice car. (State's Lodging B-10, p. 912.) He told her that the idea was stupid.2 (Id. at 913.) Once at the house, Bishop sat on the couch in the living room and played with some children while McKinney and Small went into the kitchen and sat at a table. (State's Lodging B-11, pp. 876-77, 914-15.) Denise Garner was in and out of the kitchen, making a pot of coffee. (Id.) Casey stood nearby and overheard Small tell McKinney that they had to get out of the state, to which McKinney replied, "well, let's get the job done and get out of here." (Id. at 915-16.) Small then said, "Casey owes me one," and she pointedly asked him if he would kill Bishop. (Id. at. 916.) He refused, and McKinney said he would take Bishop out to the desert, shoot him, and then burn the body. (Id. at 917.) Small replied, "that sounds like a good idea." (Id.) Meanwhile, Ada called the owner of a local bar, the Antler Club, to tell him that they would arrive in a few minutes. Casey and Denise did not accompany

Casey's claims regarding Small and McKinney's incriminating statements evolved over time. He initially told law enforcement officers that Small and McKinney mentioned something about getting Bishop's credit cards. The first time that he claimed on the record that they actually discussed killing Bishop was at a preliminary hearing several months later. Regardless, the state courts have found that the incriminating discussions in fact occurred. See State v. McKinney, 687 P.2d 570, 572 (Idaho 1984). These findings are presumed to be correct. 28 U.S.C. § 2254(e)(1). MEMORANDUM DECISION AND ORDER - 5

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them. The Robbery and Murder Bishop drove the group to the Antler Club, and a suggestion was made that he and McKinney go target shooting with McKinney's gun. (State's Lodging B-9, p. 473, State's Lodging B-12, p. 1258.) Before they left to do so, McKinney had a brief conversation with Small at the rear of Bishop's car. (Id. at 474.) The men drove away, and the women went into the Club, ordered beers, and played pool. (Id. at 475.) Approximately fifteen minutes later, McKinney returned and said, "let's go." (State's Lodging B-9, p. 477.) When the women saw Bishop's car but noticed that he was absent, they asked McKinney where he was. McKinney replied that he had "shot him once in the stomach and five times in the head." (Id. at 478-79.) They expressed disbelief, and he offered to show them the body. McKinney drove them in Bishop's car to an old gravel pit outside of town, where they saw Bishop lying motionless on the ground. (State's Lodging B-9, pp. 479-80.) Ada became hysterical, and Small told McKinney that they should take her back to Blackfoot. (Id. at 481.) According to Ada, Small said, "you didn't have to shoot him," to which McKinney replied that he "had proved the love of his woman." (Id. at 497.)
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After depositing Ada at her house in Blackfoot, McKinney and Small proceeded on to Cathy's home, where Small told her that "Randy shot Bob." (State's Lodging B-10, p. 721.) In response, Cathy asked for Bishop's leather jacket, supposedly as a keepsake to honor his memory, which Small gave to her. (Id. at 722.) Perhaps pushing her luck, Cathy also asked for his wallet, ostensibly as another keepsake, but that request was denied. (Id. at 723.) McKinney and Small drove to Pocatello, where McKinney forged Bishop's signature on a credit card receipt to pay for gas, but they soon called Ada to tell her that they would be coming back to Blackfoot to get Small's dog, which she had left behind. (State's Lodging B-9, p. 510; State's Lodging B-10, pp. 608-09.) Ada had already reported the shooting to her husband and his friends, and the police were called. McKinney and Small were stopped by a police officer outside of Ada's home; McKinney immediately got out of the car on the passenger side and walked toward the officer. (State's Lodging B-11, p. 1001.) As the officer returned briefly to his patrol car, McKinney then walked into Ada's home. (Id. at 1002.) Small had already disappeared, and she would later be found hiding in the bathroom. McKinney asked Ada what she told the police, to which her husband
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responded, "what the hell do you think she said? She told the truth." (State's Lodging B-9, p. 516.) McKinney said, "well, it looks like I'm going for murder." (Id.) At that point, police officers came into the home, and Ada declared to them that McKinney had shot Bishop; this time he said, "I didn't kill nobody." (Id. at 519.) Because the situation was becoming very tense, the officers took him into "protective custody." (State's Lodging B-11, p. 1006.) A quick search of the abandoned car revealed a .22 caliber handgun in a purse, in addition to Bishop's wallet. (State's Lodging B-11, p. 1023.) Small and Ada both volunteered to take police officers to the gravel pit to show them Bishop's body, which was found to be lying in the same position as before. A pathologist would later determine that he had been shot once in the chest followed by four close-range shots to the head. (State's Lodging B-10, pp. 632, 637, 644.) Based on the amount of blood in his lungs, the shots to the head occurred anywhere from 5 to 10 minutes to one to two hours after the first shot to the chest. (State's Lodging B-11, pp. 1193.) Rifling on bullet fragments obtained during a subsequent autopsy was consistent with having been fired from the .22 caliber handgun that was found in the purse in Bishop's car. (Id. at 1173.) McKinney was interviewed by officers later that same night. He initially denied having been to Arco, but then he started crying and claimed that he
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accidently shot Bishop once while they were target shooting because Small's little dog was nipping at his heels. (State's Lodging B-10, p. 807.) He stated that he could not remember anything after that other than "going back to the bar to get the girls" and showing them Bishop's body. (Id.) Trial, Sentencing, and Direct Appeal Based on these events, the State charged McKinney with murder in the first degree, robbery, conspiracy to commit murder, and conspiracy to commit robbery. (State's Lodging B-5, p. 2; State's Lodging B-6, pp. 6-8.) The State did not charge Dovey Small initially, but she was nevertheless held in custody as a material witness until she agreed to be deposed in exchange for her release. (State's Lodging B-8, pp. 10-20.) Her deposition was taken in McKinney's presence and subject to his counsel's cross-examination. (State's Lodging B-15.) By the start of McKinney's trial on November 2, 1981, Small had been charged with conspiracy and with aiding and abetting in robbery and murder. (State's Lodging B-6, pp. 6-8.) She was also pregnant, and her trial was set to begin after McKinney's. (State's Lodging G-37, p. 103.) She did not testify at his trial, but the judge allowed portions of her deposition testimony to be read into evidence. (State's Lodging B-12, pp. 1202-1266.) McKinney testified in his own defense. He again claimed that he accidently
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shot Bishop because Small's little dog was nipping at his pant leg while Bishop was setting up bottles for target practice. (State's Lodging B-12, pp. 1372-73.) After Bishop fell, McKinney got into his car to the Antler Club to retrieve the women. (Id. at 1372-73.) For the first time, however, McKinney testified that after they returned to the scene, Small inexplicably grabbed the gun, walked over to Bishop as he was lying on the ground, and shot him several times in the head. (Id. at 1374-78.) McKinney denied any advance planning for the robbery and murder. (Id. at 1359-60.) In rebuttal, the State presented the testimony of firearms expert Richard Craven. Craven testified that he had tested the weight of the trigger pull of the murder weapon, and it was one of the heaviest that he had ever encountered. (State's Lodging B-13, p. 1575.) The gun was then passed among the jurors so that they could test the gun's action for themselves. (Id. at 1576.) On November 12, the jury found McKinney guilty on all charges. The trial court held an aggravation and mitigation hearing on March 5 and 9, 1982. (State's Lodging B-14.) At the hearing, defense counsel offered three witness in mitigation, two family members and a psychologist. The family members testified that McKinney had been kind and gentle as a boy and that he had never been a leader. (Id. at 1733-52.) The psychologist testified that he was "impulsive" and
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would not "inspire great confidence or certainty in a follower." (Id. at 1763-67.) On March 27, 1982, the trial court found one aggravating circumstance beyond a reasonable doubt, that the murder was committed in the course of a robbery with the specific intent to kill. After weighing the proffered mitigation evidence against that circumstance, the court sentenced McKinney to death. (State's Lodging B-6, pp. 156-57.) The court also sentenced him to fixed life for robbery plus a consecutive 15 years for a firearms enhancement, an indeterminate 30 years for conspiracy to commit murder, and an indeterminate 30 years for conspiracy to commit robbery. (Id. at 157-58.) Dovey Small later received a fix life sentence for her part in Bishop's murder. The Idaho Supreme Court affirmed McKinney's convictions and sentences on direct appeal. State v. McKinney, 687 P.2d 570 (Idaho 1984) (McKinney I). STATE AND FEDERAL COURT COLLATERAL HISTORY In 1984, McKinney filed his first state post-conviction action. In one of his claims, he alleged that he had been deprived of his Sixth Amendment right to the effective assistance of counsel at his capital sentencing hearing because his counsel failed to investigate and uncover extensive evidence of childhood physical and sexual abuse. (State's Lodging D-22, pp. 27-45.) After conducting an evidentiary hearing, the district court denied relief, and that decision was affirmed on appeal.
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McKinney v. State, 772 P.2d 1219 (Idaho 1989) (McKinney II). McKinney filed his first Petition for Writ of Habeas Corpus in federal court in 1989, which was dismissed without prejudice in 1991 so that he could attempt to exhaust additional claims in a second state post-conviction action. McKinney v. Paskett, 89-CV-1182-S-HLR. In 1996, the state district court dismissed the second post-conviction petition, and McKinney appealed. On April 23, 1997, while the state court matter was still pending, McKinney filed the current Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254, which he has now amended three times. Because the post-conviction matter was pending, this Court stayed the federal case until the state court appeal concluded. The Idaho Supreme Court issued its decision in 1999 affirming the district court, and the federal stay was lifted. McKinney v. State, 992 P.2d 144 (Idaho 1999) (McKinney III). After staying the case a second time so that McKinney could raise claims in state court related to Ring v. Arizona, 536 U.S. 584 (2002), this Court addressed issues of procedural default, conditionally dismissing claims 1(b)(c)(e)(g)-(p), 2, 4, 7, 8, 9, 17, 18 (as it relates to trial), 19, 20-25 (trial claim only), 26-28, and 33-34. (Docket No. 166.) In 2006, the Idaho Supreme Court denied relief in yet another postMEMORANDUM DECISION AND ORDER - 12

conviction appeal in McKinney v. State, 150 P.3d 283 (Idaho 2006) (McKinney IV). On September 5, 2007, this Court denied McKinney's request for an evidentiary hearing and entered a final order dismissing with prejudice the procedurally defaulted claims. (Docket No. 237, p. 44.) In that same Order, the Court also dismissed Claims 7, 35, 36, and 37, as matters of law and because McKinney had failed to allege facts that, if true, would entitle him to relief. (Id.) McKinney's recent request to expand the record with new evidence has likewise been denied, with one limited exception. (Docket No. 288.) The parties have submitted final briefing on non-dismissed Claims 1(a)(d)(f), 3, 5, 6, 10-13, 15, 16, 18 (sentencing), 25 (sentencing), and 30-32.3 (Docket Nos. 247, 267, 277.) The Court has heard oral argument on these matters, and being fully advised, is now prepared to issue its ruling. LEGAL FRAMEWORK FOR HABEAS REVIEW The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) are applicable to this case. (Docket No. 184.) Under AEDPA, the Court cannot grant habeas relief on any federal claim that the state court adjudicated on the merits unless the adjudication of the claim:

McKinney has affirmatively waived his request for relief on Claims 14 and 29. (Docket No. 247, p.2 n.1.) The Court deems those claims withdrawn. MEMORANDUM DECISION AND ORDER - 13

3

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 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.

2.

28 U.S.C. § 2254(d). Section 2254(d)(1) has two clauses, each with independent meaning. For a decision to be "contrary to" clearly established federal law, the petitioner must establish that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000). To satisfy the "unreasonable application" clause, the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; the state court's application of federal law must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The state court need not cite or even be aware of the controlling
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United States Supreme Court decision to be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002). To be eligible for relief under § 2254(d)(2), the petitioner must show that the decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id. When the state court reaches a merits-based decision on a federal claim but fails to support its decision with reasoned analysis, AEDPA still mandates "an independent review of the record" to determine "whether the state court's decision was objectively reasonable." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). But when the state court has not adjudicated a federal claim on the merits despite the petitioner's fair presentation of the claim, AEDPA deference to the legal conclusion is unwarranted and the federal court's review shall be de novo. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Under all circumstances, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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GUILT PHASE CLAIMS Ineffective Assistance of Counsel (Claim 1(a)) After McKinney testified that he accidently shot Bishop once before Small delivered the fatal shots, the State presented rebuttal testimony Richard Craven. Craven testified that he had tested the weight of the trigger pull on the handgun, which previously been admitted as Exhibit H, and it was one of the heaviest that he had encountered. At the close of Craven's direct examination, the prosecutor requested "that the firearm be passed among the jury so they can test the trigger pull themselves." The trial court granted that request, and the gun was passed among the jurors. (State's Lodging B-13, p. 1576.) McKinney now contends that he was deprived of his Sixth Amendment right to the effective assistance of counsel because his trial counsel failed to object to this "jury experiment." The Court disagrees. 1. Standard of Review

The Idaho Supreme Court summarily rejected this claim during the initial post-conviction appeal without providing any reasoning supporting its decision. McKinney II, 772 P.2d at 1120-22. Therefore, this Court must review the record to determine whether the state court's decision is "objectively unreasonable." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
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2.

Clearly Established Federal Law

The federal law governing ineffective assistance of counsel claims is derived from Strickland v. Washington, 466 U.S. 668 (1984). To prove a violation of the Sixth Amendment, a petitioner must show both that his counsel's performance was unreasonably deficient and that the defense was prejudiced as a result. Strickland, 466 U.S. at 687. The standard for attorney performance in a criminal case is that of reasonably effective assistance, measured under prevailing professional norms. Strickland, 668 U.S. at 687-88. In assessing whether the representation fell below an objective standard of reasonableness, counsel's conduct must be viewed under the facts that existed at the time that the challenged act or omission occurred, rather than through the benefit of hindsight. Id. at 689. The court must indulge in the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To prove prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the result. Id. 3. Discussion

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Although the Idaho Supreme Court did not articulate a basis for denying relief, this Court concludes that the state court's decision was not objectively unreasonable because McKinney cannot show that his counsel's performance was unreasonably deficient or that he was prejudiced. In particular, he has not cited any rule or case law authority that would have supported a potentially meritorious objection to the jury's examination of the handgun. By the time of the trial in this case, Idaho jurors had long been permitted to take into the jury room all exhibits "that have been received in evidence in the cause." Idaho Code § 19-2203. Nearly sixty years earlier, the Idaho Supreme Court had found nothing improper with a jury conducting simple tests on items that had been properly admitted. See State v. Foell, 217 P. 608, 609 (Idaho 1923) (noting that the court "is not going to say that the jury cannot examine and make ordinary tests of an exhibit which the law permits them to take with them for examination"). This rule has apparently not changed. See State v. Fairchild, 829 P.2d 550, 559 (Idaho Ct. App. 1992) (relying, in part, or Foell to reject an argument that jurors committed misconduct by inspecting bindles of methamphetamine). Other courts addressing similar factual scenarios have likewise found no error. See Kurina v. Thieret, 853 F.2d 1409, 1413-14 (7th Cir. 1988) (holding that "a simple experiment [in the jury room] based solely on
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evidence introduced at trial was not prejudicial"); United States v. Beach, 296 F.2d 153, 158-59 (4th Cir. 1961) ("the mere making of a more critical examination of an exhibit than was made during the trial is not objectionable"). It is important to note that this case does not involve jurors conducting out of court experiments as a means of developing extrinsic evidence in the case; experimentation of that sort would likely be improper. See e.g. Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987). Here, the jurors examined a properly admitted trial exhibit after a witness had testified about its unique properties. Pulling a trigger requires no specific scientific expertise, and such an examination would be relevant given the evidence in the case. Because McKinney has not shown that there would have had a sound basis for objecting, his counsel cannot be said to have been constitutionally ineffective. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (finding that the failure to lodge a futile objection is not ineffective assistance). As a result, the Idaho Supreme Court's adjudication of this claim was not objectively unreasonable. For the reasons given, McKinney would not be entitled to relief under even if the claim were reviewed under a de novo standard. Admission of Dovey Small's Deposition Testimony (Claim 5) McKinney next contends that the admission of portions of Dovey Small's
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pretrial deposition testimony violated his Sixth Amendment right to confront the witnesses against him. In the absence of a state court decision on the merits of this constitutional claim, the Court must review the issue de novo. Under that standard, the Court concludes that McKinney's right to confrontation was not violated because the State demonstrated that Small was unavailable due to complications from her pregnancy, and because her former testimony, which was taken under oath, in McKinney's presence, and subject to his cross-examination, bore adequate indicia of reliability to be admissible. Alternatively, if a constitutional error occurred, the Court finds that it did not have a substantial and injurious effect or influence on the jury's verdict. 1. Background

Small was not immediately charged with any crimes related to Bishop's murder, but the State held her in custody as a material witness. She filed a motion to be released, which was granted upon her agreeing to appear for a deposition. McKinney did not object to this procedure, but he reserved the right to object if the State sought to use the recorded testimony at trial. The deposition was taken on June 6, 1981, in the presence of McKinney and his counsel, who cross-examined Small. Despite offering testimony on a wide range of subjects, on occasion Small
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conferred with her counsel before answering questions, and she also selectively invoked her privilege under the Fifth Amendment not to incriminate herself. When McKinney's trial began, Small was eight months' pregnant with their child. By then, the State had charged her as a co-defendant, but her own trial was scheduled to start later. On November 5, 1981, the State announced that it intended to call Small in its case in chief. Small was present in the courthouse, but her counsel informed the trial court and the parties that if she were called to the stand, she would invoke her privilege under the Fifth Amendment. McKinney's trial counsel asserted that he also intended to use her as a witness, and that if she invoked the Fifth Amendment he would "offer in evidence a number of matters from the deposition," which he claimed were "helpful to our case." (State's Lodging B-10, p. 688.) The trial court postponed its decision while it considered the manner in which the deposition testimony could be introduced. On November 9, a Monday, the trial court announced to the jury that it had received "an affidavit" from a Dr. Hales the previous Friday, in which the doctor indicated that Small was "afflicted with a sickness and infirmity at this time and cannot appear at the trial." (State's Lodging B-11, p. 1196.) The court informed the jury that Small's testimony would be introduced by reading a transcript of her
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deposition. In a subsequent hearing outside of the jury's presence, the court elaborated on the circumstances of Small's "sickness," stating that "last Saturday, or Friday, the Court was contacted by Dr. Hales. Both counsel knew the substance of what he was saying, was that she, Dovey Small, the deponent, [was] presently in the hospital, and they were treating her for fear that she might have a miscarriage." (State's Lodging B-12, p. 1199.) The court noted that the State had filed a supporting affidavit, "[a]nd on that basis and the lack of any showing by the defendant to controvert that, the Court has made the determination that here is a witness who is unavailable because of sickness or infirmity within the meaning of [Idaho Criminal] Rule 15." (State's Lodging B-12, p. 1200.) Defense counsel requested that the entire deposition be read to the jury, including Small's conferences with her attorney and those selected instances in which she refused to answer questions on Fifth Amendment grounds. The court denied that request, ruling that Small's invocation of the Fifth Amendment was not admissible under the Idaho Rules of Evidence. Defense counsel then objected to publishing the deposition to the jury, but he could not articulate a basis for his position. (State's Lodging B-12, p. 1201.) Each side was permitted to read portions of Small's testimony that they had
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chosen, excluding those instances in which she invoked the Fifth Amendment or conferred with her counsel. Her admission that she had been convicted of a felony was also stricken by the trial court, though the grounds for that ruling are unclear. On appeal, McKinney claimed that the admission of the deposition testimony violated his Sixth Amendment right to confrontation, but the Idaho Supreme Court relied exclusively on state rules and case law governing civil proceedings to affirm the district court's ruling. McKinney I, 687 P.2d at 575. In rejecting McKinney's main argument that the exclusion of particular parts of the deposition was erroneous, the Idaho Supreme Court concluded that "[t]he prior testimony made clear and no one in the courtroom, including the jury, could have been unaware that Dovey Small was an alleged co-conspirator in the murderrobbery of Bishop. There is no indication as to how a showing of Small's invocation of the Fifth Amendment or her conferences with her counsel would have either prejudiced or aided McKinney's case." Id. The court also found no abuse of discretion in excluding Small's admission that she had been convicted of a felony, but concluded that if any error had occurred, it was harmless beyond a reasonable doubt. Id. at 575-76. 2. Standard of Review

Because McKinney properly raised the Sixth Amendment claim in the Idaho
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Supreme Court and yet the court analyzed the issue as one arising solely under state law, this Court must defer to any findings of fact, 28 U.S.C. § 2254(e)(1), but it shall review the federal legal claim de novo. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004). 3. Clearly Established Federal Law

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. U.S. Const. Amend. VI. The Confrontation Clause is intended to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). At the time of McKinney's trial and direct appeal, Ohio v. Roberts, 448 U.S. 56 (1980), set out the analytical framework for determining whether the admission of hearsay evidence violated a defendant's right to confrontation. In Roberts, the Supreme Court held that the prosecution must "either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Id. at 65 (citations omitted). To show that the witness is unavailable, "the prosecutorial authorities [must] have made a good-faith effort to obtain his [or her] presence at trial." Id. at 74. "The lengths to which the prosecution must go to
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produce a witness ... is a question of reasonableness." Id. At the time, if the witness were truly unavailable, then his or her out of court statement could be admitted without violating the Confrontation Clause when the evidence bore adequate "indicia of reliability." Reliability was inferred "without more in a case where the evidence falls within a firmly rooted hearsay exception." Id. at 66. In all other cases, the evidence was deemed sufficiently reliable and admissible only if it bears particularized guarantees of trustworthiness.4 Id. 4. Unavailability

McKinney first argues that "there is no record evidence, merely a bare assertion, that Ms. Small was `unavailable.' She simply refused to testify." (Docket No. 247, p. 17.) Contrary to this argument, the contemporaneous evidentiary record before the trial and appellate courts, while not extensively detailed, pointed to only one conclusion: Small was not available to testify because she was in the latter stages of an at-risk pregnancy, and her doctor was treating her
This aspect of the Roberts test has since been overruled by Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held that, regardless of reliability, a witness's testimonial out of court statements are not admissible under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. Id. at 68 The parties in this case agree that Crawford cannot be applied retroactively to grant habeas relief. Whorton v. Bockting, 127 S.Ct. 1173, 1177 (2007). In any case, it is likely that the new rule would not benefit McKinney, because, as will be explained, Small was both unavailable to testify and McKinney had a prior opportunity to crossexamine her under oath, satisfying Crawford's minimum requirements for admissibility under the Sixth Amendment. See, e.g., United States v. Cannon, 539 F.3d 601, 602 (7th Cir. 2008) ("we see no reason, post- Crawford, to question the constitutionality of admitting fully cross-examined testimony preserved by a properly conducted Rule 15 deposition"). MEMORANDUM DECISION AND ORDER - 25
4

"for fear she may have a miscarriage." (State's Lodging B-11, p. 1199.) It is likely that the record is not better developed on this point because "[b]oth counsel knew the substance of what [the doctor] was saying," and there was no "showing by the defendant to controvert" the doctor's letter and the State's affidavit. (State's Lodging B-11, p. 1200.) The Idaho Supreme Court devoted a single introductory sentence to the matter, remarking that "the deposition was published, since Small was unavailable due to problems with her pregnancy." McKinney I, 687 P.2d at 575. The focus through the direct appeal was not on Small's unavailability but rather on the trial court's decision to limit the scope of the evidence that had been introduced. McKinney notes correctly that Small offered additional testimony on this issue when she was deposed again in 1985, but rather than undermine the original finding, her later testimony supports it. Small was able to recall that she had to be taken to the hospital "quite a few times" during her pregnancy. (State's Lodging D-24, pp. 27-28.) She admitted that she was present at McKinney's trial but that she "refused to take the stand and testify against him" (id. at 28), which is corroborated by the hearing on November 5, 1981, during which the State announced it intended to call Small as a witness and her counsel responded that she would invoke the Fifth Amendment. Small also testified that the night after she
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"was supposed to take the stand" (presumably November 5 or 6), she was taken "to the hospital because [she] went into labor really hard." (Id. at 27.) This corresponds with the trial court's recitation of the events to the jury and to the parties the following Monday, November 9. While Small also claimed that the baby was born right after McKinney was sentenced, this would not have been possible since he was sentenced in March 1982, several months after the baby's due date. The Ninth Circuit has upheld a finding of unavailability under similar circumstances in United States v. McGuire, 307 F.3d 1192 (2002). In McGuire, the district court allowed the previous trial testimony of a witness to be admitted into evidence at a second trial after finding that the witness could not appear because she was in the third trimester of her pregnancy. Id. at 1205. On appeal, the Ninth Circuit affirmed, holding that "[t]hese risks in late pregnancy, when attested to by a physician, are an `infirmity' within the meaning of the Rule." Id. Although the Federal Rules of Evidence were at issue in McGuire rather than the Confrontation Clause, there is no reason why the Ninth Circuit's conclusion as to what constitutes unavailability would be any different under the Constitution. In sum, the prosecution must make a good faith effort to secure the witness's attendance. Roberts, 448 U.S. at 74. The lengths to which the prosecution must go
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is a question of reasonableness judged by the facts and circumstances of each case, and the law does not require the doing of a futile act. Id. Given that the facts here showed that Small was suffering from complications during her late-term pregnancy, which McKinney did not seriously dispute at the time, the good faith requirement was satisfied. 5. Indicia of Reliability

The Court also finds that Small's testimony bore adequate indicia of reliability to have been admissible without violating McKinney's right to confrontation. An exception to the hearsay rule for former testimony has a long history in American jurisprudence, see e.g. Mattox v. United States, 156 U.S. 237 (1895), and statements that are admitted pursuant to that exception commonly have been found to satisfy the Confrontation Clause. Roberts, 448 U.S. at 68-73; Mancusi v. Stubbs, 408 U.S. 204, 213-16 (1972); California v. Green, 399 U.S. 149, 165-66 (1970). Yet the United States Supreme Court has never squarely held that the exception is a "firmly rooted" one, such that satisfying its requirements would necessarily comply with the Confrontation Clause without a further showing of trustworthiness. Several lower circuit courts have so held. See United States v. Mann, 161 F.3d 840, 861 (5th Cir. 1998); United States v. McKeeve, 131 F.3d 1, 9
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(1st Cir. 1997); United States v. Kelly, 892 F.2d 255, 262 (3d Cir. 1989); United States v. Salim, 855 F.2d 944, 954-55 (2d Cir. 1988). It appears that the Ninth Circuit has not taken a conclusive stand on the issue. Compare United States v. Koon, 34 F.3d 1416, 1426 (9th Cir. 1994) (noting without elaboration that the former testimony exception in Fed. R. Evid. 804(b)(1) is "a firmly rooted one"), overruled on other grounds by Koon v. United States, 518 U.S. 81 (1996), with Alcala v. Woodford, 334 F.3d 862, 882 (9th Cir. 2003) ("we do not opine on whether prior trial testimony is a firmly rooted hearsay exception, although we acknowledge some indications in the case law that it is"). This Court need not determine whether Idaho's hearsay exception admitting this former testimony is a firmly rooted one because the evidence nevertheless bore particularized guarantees of trustworthiness. There is no mechanical test for determining reliability, see Dutton v. Evans, 400 U.S. 74, 89 (1970), but the existence of safeguards closely approximating those present at a trial, such as the taking of testimony under oath subject to cross examination, have been found to satisfy the reliability component of the Roberts test. See United States v. Johnson, 735 F.2d 1200, 1203 (9th Cir. 1984) (finding deposition testimony reliable because "counsel had an adequate opportunity to cross-examine [the witness] and availed himself of that opportunity"). Those safeguards were squarely in place here.
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Small was under oath when she testified at her deposition, which was taken to preserve her testimony in the event that she did not appear at trial. McKinney was personally present, and his defense counsel cross-examined Small with the same motive that he would have if she were testifying at trial. To that end, he impeached her with her inconsistent statements from the preliminary hearing, and he elicited other favorable evidence that tended to exclude McKinney (and Small) from pre-planning the robbery and murder. Though it is true that Small selectively invoked the Fifth Amendment in response to some questions from the prosecutor over the course of her direct testimony, she answered all of the questions put to her by defense counsel on cross-examination, save one instance in which he asked her whether she had used marijuana. McKinney has not pointed to any specific topic that he was unable to test through cross-examination, had he wanted to do so. The trial court's decision to exclude Small's references to the Fifth Amendment and the court reporter's notations of when she conferred with her attorney does not alter the analysis. Generally, no inference may be drawn from a witness's invocation of the Fifth Amendment in a criminal case, and McKinney has cited no authority showing that he had a right to have the jury be made aware that Small invoked the Fifth Amendment or had conferred with her counsel before answering certain questions. Cf. United States v. Castorena-Jaime, 285 F.3d 916,
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931 (10th Cir. 2002) ("[d]efendants do not, however, have the right to force a witness to invoke his Fifth Amendment privilege before the jury"). To be sure, the cold reading of a deposition transcript will gloss over subtle nuances in demeanor that could be exposed through live testimony, and the preference is undoubtedly for face-to-face confrontation in front of the jury, but the minimum requirements of the Constitution were satisfied in this case. 6. Prejudice

Even if the admission of this evidence were a constitutional error, the Court alternatively concludes that McKinney would not be entitled relief because he cannot demonstrate that the error had a "substantial and injurious effect or influence in determining the jury verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Those portions of Small's deposition that were read contained an uneven mix of statements that tended both to place the blame squarely on McKinney while simultaneously undermining the State's theory of pre-planning and a conspiracy. The most incriminating aspects­that McKinney returned to the bar alone, declared that he had shot Bishop, and then showed Small and Ada the body­did not stand alone and were corroborated by Ada's in-court testimony. Other parts, while perhaps not exculpatory, were at least consistent with the theory of defense, such
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as the following: Small and McKinney did not discuss harming Bishop at the Wheeless house; it was Bishop's idea to go target shooting but McKinney was reluctant to do so; the dog was with them in the car; and McKinney did not say that he shot Bishop "once in the stomach and five times in the head." In addition, Small's testimony would have obviously been viewed with a jaundiced eye, as "no one in the courtroom, including the jury, could have been unaware that Dovey Small was an alleged co-conspirator in the murder-robbery of Bishop." McKinney I, 687 P.2d at 575. Perhaps more importantly, other independent evidence strongly supported McKinney's guilt. He was seen with the murder weapon on several occasions in the hours before Bishop was shot. Casey Wheeless testified that Small and McKinney discussed how they needed money and intended to kill Bishop, even soliciting his help. Denise Garner and Tana Hampton corroborated Wheeless's testimony. McKinney himself admitted taking Bishop's car and personal possessions, and forging Bishop's signature on a credit card receipt. He also gave several inconsistent or incomplete versions of the events, at one point even stating that "it looks like I'm going for murder," and the believability of his claim that the gun accidently discharged was seriously called into question by Craven's rebuttal testimony.
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For these reasons, any error in admitting the deposition testimony did not have a substantial and injurious influence or effect on the jury's verdict such that the state court's judgment must be overturned in this collateral habeas proceeding. Prosecutorial Misconduct (Claim 6) In his next guilt-phase claim, McKinney asserts that "trial prosecutor tainted the impartiality of the jurors by appealing to their passions and prejudices, by arguing matters not in evidence, by arguing his personal opinion and religious references to the Old Testament, and by making misstatements of law to the jury." (Docket No. 238, p. 23.) The Idaho Supreme Court summarily rejected this issue after "find[ing] no error." McKinney I, 687 P.2d at 576. The standard for a claim of prosecutorial misconduct on habeas review is a "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)). A prosecutor's comments or actions that may be considered inappropriate under rules of fair advocacy, or even reversible error on direct review, will not warrant federal habeas relief unless 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. 1. Comments on the Burden of Proof

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McKinney asserts that the prosecutor advised the jury of an improper definition of reasonable doubt and misled the jury about the State's burden of proof. The first instance allegedly occurred during the following exchange in jury selection: [Prosecutor]: We've got a lot of people on this panel that are used to dealing with very little margin of error in their work. Are you one of them? No. Oh, you're used to large margins of error. That's good. Well, then you can appreciate what the term "beyond a reasonable doubt" means, can't you? Yes. I'm not sure of the definition of "reasonable doubt" yet. I heard the Judge say, but I'm not sure I totally absorbed it. Okay. I know it's not no doubt whatsoever, but I'm not sure how precise we have to be in understanding the reasonable doubt. The Court will undoubtedly instruct you on that again. And do you have any disagreement with the fact that that is our burden, whatever the Judge will ultimately instruct you on it as. No. I have no problems with that.

Mr. Grossman: [Prosecutor]:

Mr. Grossman:

[Prosecutor]: Mr. Grossman:

[Prosecutor]:

Mr. Grossman:

(State's Lodging B-8, p. 240.) McKinney argues that in this exchange the prosecutor equated "large
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margins of error" with reasonable doubt. He also contends that, later in the jury selection, the prosecutor informed the jury that it should not "even consider just possible doubt." (Docket No. 247, p. 46.) Neither of these brief instances amount to prosecutorial misconduct. The first was at most an ambiguous reference to "margins of error" and reasonable doubt, and it was a minor exchange that ended with the prosecutor informing the juror that the judge would instruct him on the correct standard. The second phrase about not considering just possible or imaginary doubt or the like is not an incorrect statement of law. Cf. Victor v. Nebraska, 511 U.S. 1, 17 (1994). McKinney contends that the prosecutor also made "several other similarly misleading remarks," but he has not provided the Court with argument or analysis concerning any additional statements concerning the reasonable doubt standard. 2. Appeal to Emotion and Prejudice

In his opening statement, the prosecutor informed the jury that Ada Mangum would testify, among other things, that "Randy McKinney, in reminiscing over the thing that he had done, makes the comment that `it's hard to kill a white man.' He said, `It was harder than I thought. It's not near as bad as killing a nigger.'" (State's Lodging B-9, p. 411.) In her testimony on this subject, Mangum claimed that McKinney had
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actually said, "it was easier for him to kill a black man than it was a white man." (State's Lodging B-9, p. 488.) When the prosecutor pressed her to "tell us specifically, what did he say," she replied, "[t]hat's what he said. It was easier ­ I mean it was harder for him to kill a white man than it was a black man." (Id.) In his closing argument, the prosecutor again characterized this evidence as "[McKinney] makes a comment that he had a hard time killing this guy ... [s]aid it was a lot easier to kill a nigger." (State's Lodging B-13, p. 1631.) McKinney now claims that the prosecutor's use of the word "nigger" was a racially-charged appeal to the jury's emotions and, in context, an improper reference to an uncharged murder. This Court agrees that the prosecutor should have refrained from using that particular word, particularly in his closing argument, since by that time Ada Mangum had testified that McKinney had referred to a "black man." As such, the prosecutor misstated the evidence. Even if he expected Mangum to testify in a certain way, when that expectation did not bear fruit he should have exercised more caution before using a racially sensitive term. On the other hand, the prosecutor had a right to comment on the evidence presented at trial, and the subject on which the prosecutor commented was clearly supported by the evidence. McKinney may not have used the exact phrasing that the prosecutor suggested he did, but, according to Ada, he expressed the sentiment
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in very similar terms. McKinney's counsel failed to object on the grounds he now asserts, either to the testimony or to the prosecutor's comments, but the evidence appears to be relevant and admissible against McKinney as an admission of guilt to the charged offenses. This is not a case in which a prosecutor intentionally used a racial epithet in an effort to demean the defendant personally or to inflame the prejudices of the jury, and cases that address those circumstances are inapposite. 3. Appeal to Religion

Near the end of his closing argument, the prosecutor remarked that Bishop was "laying in a cold grave somewhere, and his blood is crying out for justice. And he deserves it. And if you don't give it to him, he'll never get it." (State's Lodging B-13, p. 1702-03.) McKinney contends that this was a religious exhortation based on Genesis 4:10 in the King James Version of the Bible, which reads, "And he said, What hast thou done? the voice of thy brother's blood crieth unto me from the ground." On its face, the prosecutor's language appears to be a rhetorical flourish that brought his lengthy summation to a close; it is not a self-evident reference to a specific biblical verse. He did not expressly cite religious authority, nor did he ask the jury to resort to biblical law in adjudicating the case. Serving as an additional buffer, the trial court instructed the jury to consider only its instructions on the law
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as applied to evidence presented in court. (State's Lodging B-13, p. 1594.) Even if the remarks exceeded the bounds of proper argument, they did not constitute such egregious misconduct as to deprive McKinney of his right to a fair trial, as discussed below. 4. Reference to the Assassination Attempt on President Reagan

For his last example of alleged misconduct, McKinney points to the prosecutor's remark in his opening statement that the murder weapon was "[a] Saturday night special. The same type of gun that President Reagan had been shot with." (State's Lodging B-9, p. 401.) Although Richard Craven would later confirm that the weapon was a "Saturday night special," there was no evidence presented at trial that it was similar to the one that John Hinkley had used in attempting to assassinate President Reagan. It is unclear whether the prosecutor believed that he would be able to elicit such evidence when he made his opening statement, but the claim was not repeated in closing argument. Defense counsel did not object to the remark, and the jury was instructed that an opening statement "is not itself evidence." (State's Lodging B-9, pp. 38081.) This Court finds the comment at the beginning of the trial, if improper, to be minimal, isolated, and without lasting effect. 5. Cumulative Due Process Analysis

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The question before this Court is not whether any of these comments crossed the line into improper argument, but whether they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643. To the extent that any of the remarks amounted to misconduct, they were minor blemishes in the face of an extensive record containing strong evidence of guilt. The sting from any improper comments would have been further removed by the trial court's instruction to the jury that arguments "are not evidence, and are not to be considered by you as such, and are proper matter [sic] to consider only insofar as the attorneys keep within the evidence admitted upon the trial, and the instructions of the Court." (State's Lodging B-13, p. 1612.) Finding no due process violation, this Court must deny relief. Handcuffing in the Courtroom (Claim 12) In this claim, McKinney alleges that he was deprived of due process of law when he "was exposed to members of the jury while confined in handcuffs contrary to well-established dictates of Supreme Court precedent." (Docket No. 238, p. 31.) 1. Background

On the seventh day of trial, defense counsel moved for a mistrial on the ground that "we have observed personally that each time the sheriff brings Randy
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into the courtroom, he is in handcuffs. And each time before Randy leaves, he is in handcuffs." (State's Lodging B-11, p. 1071.) Counsel then testified under oath about the circumstances, indicating that when the Sheriff brought McKinney to and from the courtroom counsel had "observed that the defendant has been in handcuffs, bracelet-type handcuffs." (Id. at 1072.) He further testified that he had seen jurors in the "outer foyer" area when the transport occurred, and that jurors were still in the courtroom on other occasions when the Sheriff cuffed McKinney to take him out. (Id. at 1072-73.) Defense counsel "couldn't represent or testify, Your Honor, that [he] saw a particular juror actually observing that. Only that they were still passing from the courtroom." (Id. at 1077.) No juror was questioned about whether he or she had seen McKinney in handcuffs. The trial court denied the motion for mistrial, agreeing that "we are supposed to protect a jury from prejudice of a defendant," but observing that "[w]e don't have him sitting here in cuffs. He's free. He's not shackled at all. Coming and going, apparently he's been cuffed." (State's Lodging B-11, pp. 1075-76.) The trial court concluded, "I don't conceive that there's been any great prejudice to the defendant in this trial by being brought to the area of the courtroom in cuffs and having them taken off. There's no great display of him being in cuffs." (Id.) On direct appeal, the Idaho Supreme Court rejected this claim after finding
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that "there is no showing here, nor was there at the trial court, that any juror may have seen McKinney in handcuffs ... [t]he mere possibility that some juror may have seen McKinney in handcuffs does not satisfy appellant's burden of showing prejudicial error on appeal." McKinney I, 687 P.2d at 575. 2. Standard of Review

Because the Idaho Supreme Court issued a reasoned, though brief, decision addressing this claim on the merits, McKinney must show that its decision was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). All state court findings of fact must be presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 3. Clearly Established Federal Law

The Sixth and Fourteenth Amendments to the United States Constitution assure a criminal defendant the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503 (1976). In Illinois v. Allen, 397 U.S. 337 (1970), the United States Supreme Court considered the removal of an obstreperous defendant from his criminal trial, recognizing that while "binding and gagging might possibly be the fairest and most reasonable way to handle" the situation, "even to contemplate
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such a technique ... arouses a feeling that no person should be tried while shackled and gagged except as a last resort." Id. at 344. In Estelle, the Supreme Court held that compelling a defendant to stand trial in identifiable jail clothing eroded the presumption of innocence. 425 U.S. at 512. By the time of the Idaho Supreme Court confronted this issue in the present case, lower circuit courts following Estelle and Allen had interpreted the due process guarantee of a fair trial as requiring a defendant to be free from shackles unless exceptional circumstances were present. See e.g. Corley v. Cardwell, 544 F.2d 349, 352 (9th Cir. 1976) ("[a] defendant who, absent exceptional circumstances, is forced to stand trial manacled or in prison garb is denied due process"); Zygadlo v. Wainwright, 720 F.2d 1221, 1223 (11th Cir. 1983) (similar). Recently, the Supreme Court reiterated that "[t]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need." Deck v. Missouri, 544 U.S. 622, 630 (2005). 4. Discussion

The Idaho Supreme Court found that McKinney had made no showing that any juror had seen him in shackles. This finding is a reasonable one in light of the evidence presented in state court, which established that McKinney may have been
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cuffed during transport by the Sheriff, but he was not shackled when trial was in session. Additionally, while trial counsel testified that he had observed McKinney being taken to and from the courtroom in handcuffs in close proximity to jurors, he "couldn't represent or testify ... that [he] saw a particular juror actually observing that." (State's Lodging B-11, p. 1072.) No juror was questioned. Even if a juror or jurors had seen McKinney, it would have likely been a brief observation when he was brought in or out of the courtroom, and there is certainly no evidence that he was "forced to stand trial manacled." See Corley, 544 F.2d at 352. In this respect, his case is similar to Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002). In Ghent, the defendant was transported into the courtroom in handcuffs, and the district court found that at least some jurors had seen him in cuffs in a hallway, but the Ninth Circuit declined to find a due process violation. Id. at 1133. In reaching that conclusion, the Court wrote, "[t]he jury's `brief or inadvertent glimpse' of a shackled defendant is not inherently or presumptively prejudicial, nor has Ghent made a sufficient showing of actual prejudice." Id. Here, likewise, a juror's view of a handcuffed McKinney would have been a brief or inadvertent glimpse as he was passing into or out of the courtroom. Given the state of the evidence developed in state court, and in light of clearly established federal law, the Idaho Supreme Court's adjudication of this
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claim did not result in a decision that was contrary or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination in light of the evidence presented. Relief shall be denied. PENALTY PHASE CLAIMS Ineffective Assistance of Counsel ­ Mitigation Investigation (Claim 1(f)) McKinney next alleges that his appointed counsel "was ineffective in that he failed to investigate whether Petitioner had a history as an abused child or a history of physical and psychological trauma or disorder which might act as a circumstance which could mitigate the penalty to be imposed for this crime, and failed to present factual and expert evidence to the trial court." (Docket No. 238, p. 13.) For the reasons set forth below, the Court agrees that McKinney was deprived of his Sixth Amendment right to the effective assistance of counsel during his capital sentencing proceeding. The Court further concludes that habeas relief is warranted because the Idaho Supreme Court's adjudication of this claim involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. 1. The Sentencing Hearing

The aggravation and mitigation hearing took place over two partial days in
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March 1982. Urging the trial court to impose a death sentence, the State relied primarily on the evidence developed at trial to support two statutory aggravating circumstances: that the murder was committed with the utter disregard for the value of human life (Idaho Code § 19-2515(f)(6)); and that the murder was committed during a robbery (a first-degree felony murder) with the specific intent to cause the death of a human being (Idaho Code § 19-2515(f)(7)). (State's Lodging B-14, pp. 1801-06.) McKinney's defense counsel, William Carlson, presented the testimony of three witnesses in mitigation of punishment, two close family members and a psychologist. McKinney's mother, Karen Ponting, testified that her son had been a follower who was easily led by females. She also claimed that he was always very quiet, treated others with kindness, and had done well in school. McKinney's great aunt testified similarly to Ms. Ponting. The psychologist, Dr. Gary Payne, testified that he had administered a series of psychological tests to McKinney. From his evaluation, Dr. Payne concluded that while McKinney had "no major defect," he "suffer[ed] from an inadequate personality disorder," which made him impulsive. (Id. at 1763.) Dr. Payne testified that he "would be easily led" and would not "inspire great confidence or certainty in a follower." (Id. at 1766.) He also believed that McKinney "would
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behave as someone who was younger, perhaps in late adolescence, limited maturity, working hard to please, perhaps adopting what are outward trappings might suggest that he was conforming for acceptance." (Id. at 1767.) The general theme of defense counsel's mitigation case, as reflected by his closing argument to the court, was that McKinney was an easily-led young man who came under the spell of a manipulative older woman, and that under her influence and the influence of alcohol and drugs, he committed crimes that he ordinarily would not have committed. Counsel also briefly mentioned that some doubt lingered as to who actually fired the fatal shots. But at no point did he suggest that McKinney's background or childhood was anything other than fairly routine, perhaps with a few minor bumps along the way. 2. The District Court's Findings

The state district court declined to apply the "utter disregard" aggravating circumstance, but the court did find that the State had proven beyond a reasonable doubt that McKinney intentionally killed Bishop by shooting him in the head during the course of a robbery, supporting the felony murder plus specific intent aggravator. The district court expressly considered McKinney's arguments in mitigation, which it characterized in general terms as "the youth of the defendant; the
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defendant's background and environment (as i