Clarence Dixon v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLARENCE WAYNE DIXON, No. 16-99006
Petitioner-Appellant,
D.C. No.
v. 2:14-cv-00258-
DJH
CHARLES L. RYAN, Warden,
Director, Arizona Department of
Corrections; RON CREDIO, Warden, OPINION
Arizona State Prison - Eyman
Complex,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding

Argued and Submitted November 14, 2018
San Francisco, California

Filed July 26, 2019

Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber and Sandra S. Ikuta, Circuit Judges

Opinion by Chief Judge Thomas
2 DIXON V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Clarence
Wayne Dixon’s habeas corpus petition challenging his
Arizona state murder conviction and death penalty.

The panel applied deferential review under the
Antiterrorism and Effective Death Penalty Act of 1996.

The panel held that the district court properly held that
Dixon’s Sixth Amendment right to effective assistance of
counsel was not violated when his trial counsel elected not to
challenge Dixon’s competency to waive counsel, despite
counsel’s knowledge that Dixon had a history of mental
health issues. The panel held that the Arizona Superior
Court’s denial of Dixon’s petition for post-conviction relief
did not unreasonably apply Strickland v. Washington, 466
U.S. 668 (1984), and that the record demonstrates that the
Arizona Superior Court did not rely on an unreasonable
determination of the facts.

The panel held that the district court properly concluded
that Dixon’s due process rights were not violated by the state
trial court’s failure to hold a competency hearing sua sponte.
The panel held that the state post-conviction-relief court’s
determination without a hearing that Dixon was competent to
waive counsel and represent himself was not an unreasonable

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

determination of the facts, nor was it contrary to clearly
established law.

The panel held that the district court properly held that the
Arizona Supreme Court’s opinion concluding that the trial
court did not abuse its discretion in denying Dixon’s final
request for a continuance was neither contrary to, nor an
unreasonable application of, clearly established law; and did
not rest on an unreasonable determination of the facts.

The panel expanded the certificate of appealability to
cover Dixon’s claim that his Sixth and Fourteenth
Amendment rights were violated when he was shackled and
subject to electronic restraints during the trial. As to that
claim, the panel held that the Arizona Supreme Court’s
determination that Dixon was not prejudiced because the jury
did not see the restraints was neither an unreasonable
determination of the facts nor an application of Deck v.
Missouri, 544 U.S. 622 (2005), contrary to clearly established
federal law. The panel held that in holding in the alternative
that any error under Deck was harmless, the Arizona Supreme
Court did not apply Chapman v. California, 386 U.S. 18
(1967), in an objectively unreasonable manner. The panel
held that the Arizona Supreme Court’s factual conclusions
regarding the visibility of the restraints were not
unreasonable.

The panel declined to expand the COA as to other issues.
4 DIXON V. RYAN

COUNSEL

Paula Kay Harms (argued) and Amanda C. Bass, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Petitioner-Appellant.

Myles A. Braccio (argued) and John Pressley Todd, Assistant
Attorneys General; Lacey Stover Gard, Chief Counsel; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Respondents-Appellees.

OPINION

THOMAS, Chief Judge:

An Arizona jury convicted Clarence Wayne Dixon of the
1977 murder of Deana Bowdoin and imposed the death
penalty. Dixon appeals the district court’s denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We review a district court’s denial of a habeas
corpus petition de novo, Hall v. Haws, 861 F.3d 977, 988
(9th Cir. 2017), and we affirm. We expand the certificate of
appealability (“COA”) as to Dixon’s claim that his rights
were violated under the Sixth and Fourteenth Amendments
when he was shackled and subject to electronic restraints
during the trial. We affirm the district court’s denial of the
petition on that issue.
 DIXON V. RYAN 5

I

The factual and procedural history of this case spans over
four decades and has been discussed at length by Arizona
state courts and federal courts. A summary of the history
relevant to resolution of the claims before us follows.

A

In June 1977, Dixon struck a teenage girl with a metal
pipe. Dixon v. Ryan (Dixon II), No. CV-14-258-PHX-DJH,
2016 WL 1045355, at *4 (D. Ariz. Mar. 16, 2016) (order)
(unpublished decision). Dixon was charged with assault with
a deadly weapon in Maricopa County Superior Court. Id. at
*4.

The trial court appointed two psychiatrists, Drs.
Bendheim and Tuchler, to evaluate Dixon, as then required
by Rule 11 of the Arizona Rules of Criminal Procedure. Id.
Both doctors determined that Dixon was not competent to
stand trial, noting his depression and difficulty
communicating. Both doctors opined that Dixon suffered
from “undifferentiated schizophrenia.” Dr. Benheim opined
that Dixon would be competent to stand trial within “two to
six months.” Dr. Tuchler recommended treatment in a state
hospital, and opined that Dixon “may become competent to
stand trial.” Thereafter, the Superior Court determined that
Dixon was not competent to stand trial and committed him to
the Arizona State Hospital for competency restoration.

Approximately six weeks later, a third psychiatrist, Dr.
Marchildon, reported that Dixon was competent to stand trial,
reasoning that Dixon’s “mental condition substantially
differ[ed]” from the condition described by Drs. Bendheim
6 DIXON V. RYAN

and Tuchler. Dr. Marchildon noted that Dixon’s affect was
appropriate, his insight and judgment were satisfactory, and
he “displayed no behavior or ideation which would indicate
mental illness.” Dr. Marchildon further determined that
Dixon understood the charges against him and the legal
proceedings.

Dixon thereafter appeared before the Superior Court,
waived his right to a jury trial, and agreed the case should be
determined on the submitted records. The court found Dixon
not guilty of the assault by reason of insanity and ordered
Dixon released pending civil proceedings on January 5, 1978.

The next day, Deana Bowdoin was found dead in her
apartment, strangled with a belt and stabbed several times.
Investigators found semen in Deana’s vagina and on her
underwear, but were unable at that time to match the DNA
profile to a suspect.

In June 1985, Dixon assaulted a Northern Arizona
University student in Flagstaff, Arizona. State v. Dixon,
735 P.2d 761, 762 (Ariz. 1987). Dixon was convicted of
aggravated assault, kidnapping, sexual abuse, and four counts
of sexual assault and was sentenced to seven consecutive life
sentences. Id. The victim initially reported the incident to
the University Police Department. Id. The University
officers assisted in the investigation and transmitted an
“attempt to locate” call after the victim provided a description
of the assailant.

In 2001, a police detective compared DNA recovered in
the investigation of Bowdoin’s 1978 murder against a
national database. The profile matched Dixon, then an
 DIXON V. RYAN 7

Arizona state inmate whose DNA had been collected in the
1985 sexual assault investigation.

B

In November 2002, a grand jury indicted Dixon on the
charge of first-degree premeditated murder, or, in the
alternative, first-degree rape and felony murder, for
Bowdoin’s murder.

The State filed notice of its intent to seek the death
penalty if Dixon were convicted of first-degree murder.
Following the State’s notice of intent, public defenders Liles
and Simpson were appointed to represent Dixon. For all
capital defendants, Arizona law provided automatic
prescreening evaluation for competency, sanity, and
intellectual disability. Ariz. Rev. Stat. §§ 13–753 to 754.
Dixon’s counsel objected to the prescreening evaluation,
which was never performed.

In July 2003, defense counsel informed the trial court it
might take longer than usual to compile mitigation evidence
because Dixon had spent his early life on the Navajo
Reservation. Defense counsel estimated that the mitigation
specialist would need a year to conduct a complete
investigation. The court initially set the trial date for June 15,
2004. Defense counsel later filed a Notice of Possible
Insanity Defense.

In April 2004, defense counsel estimated the mitigation
investigation could be completed in five months if the case
were assigned to a new specialist. The court granted the
defense motion for a continuance on these grounds and
vacated the June 2004 trial date. After a new mitigation
8 DIXON V. RYAN

specialist was assigned to the case, the court extended the
deadline for disclosure of mitigation evidence to January
2005. In April 2005, defense counsel informed the court and
the State that Dixon would not be pursuing an insanity
defense.

In October 2005, Dixon filed a motion for change of
counsel, explaining that his counsel had informed Dixon that
they could not file a motion he requested, despite previously
agreeing to file the motion in exchange for his cooperation in
the preparation of his defense. Dixon believed that the DNA
evidence linking Dixon to the murder should be suppressed
as fruit of the poisonous tree because it was obtained in
connection with his 1985 assault conviction. The 1985
conviction itself was invalid, Dixon believed, because the
campus police lacked the authority to investigate. Defense
counsel informed Dixon that they could not file the motion on
Dixon’s behalf because Dixon’s theory was not viable. The
court held a hearing, at which Dixon acknowledged that a
different attorney may likewise refuse to file the motion, at
which point he would proceed pro se. The court then denied
the motion to substitute counsel, but advised Dixon that he
could request to proceed pro se.

In February 2006, Dixon moved to waive his right to
counsel and to represent himself. The court granted Dixon’s
request after engaging in a colloquy with Dixon regarding
whether his request to represent himself was knowing,
voluntary, and intelligent. The court questioned Dixon’s
competency. Dixon informed the court that, although he
previously underwent Rule 11 competency proceedings in
1977, he was not aware of any current mental health issues
that would prevent him from proceeding to trial. The court
also asked Simpson, Dixon’s counsel at the time, if he knew
 DIXON V. RYAN 9

of any mental health issues “that would make this court’s
decision as to whether to grant the waiver of right to counsel
in jeopardy,” but Simpson denied knowledge of any reason
why Dixon should not be allowed to waive counsel.

Before deciding the motion, the court confirmed that
Dixon wished to represent himself and give up his right to
counsel, that Dixon understood trial counsel could “be of
great benefit” to him, that Dixon had the right to an attorney
and that the court could appoint an attorney if he could not
afford one, that Dixon understood the charges against him,
and that Dixon understood that the potential penalties for the
crime included death or life imprisonment. The court
determined that Dixon “knowingly, intelligently, and
voluntarily waived” his right to be represented by an attorney,
but appointed Simpson as advisory counsel. The court
thereafter granted Dixon’s request for a paralegal and a
mitigation specialist. Simpson served as advisory counsel
until the court appointed Kenneth Countryman and Nathanial
Carr III, who served as advisory counsel through Dixon’s trial
and sentencing.

Dixon subsequently filed a motion to suppress the DNA
evidence linking him to the murder based on his theory that
the campus officers lacked authority to investigate. The court
denied the motion. Dixon filed a motion for change of judge
based on the denial of the motion to suppress, which the court
also denied. Dixon continued to pursue his theory in a special
action, eventually seeking review, unsuccessfully, in the
Arizona Supreme Court.

When Dixon was granted permission to represent himself
in March 2006, the court set the trial for October 18, 2006.
In September 2006, Dixon informed the court his mitigation
10 DIXON V. RYAN

evidence would not be ready for another nine months to a
year, and the court continued the trial to June 25, 2007, “a
date certain.” In May 2007, Dixon informed the court his
mitigation evidence would not be ready for the June trial date
and requested a continuance. The trial was rescheduled for
August 2007.

In late August 2007, Dixon moved for a continuance until
the last week of January 2008. In support, Dixon raised the
turnover among prior mitigation specialists, the loss of a
number of documents compiled by the prior specialists,
difficulties communicating with the current specialist and
experts due to his incarceration, and overall delays due to his
incarceration. The court set the trial date for September 13,
2007, but subsequently reset the trial for November 13, 2007.

On November 8, 2007, Dixon moved for a three-month
continuance, until March 2008. Dixon attached a letter from
the current mitigation specialist, Tyrone Mayberry, in which
Mayberry informed Dixon that the mitigation investigation
was not yet complete and that Dixon could not proceed to
trial with the mitigation incomplete. Dixon also attached a
letter addressed to his advisory counsel from the office of Dr.
Gaughan, a psychologist. In the letter, Dr. Gaughan indicated
that he had been unable to reach Dixon’s mitigation
investigator or advisory counsel and expressed concern about
the lack of communication given the seriousness of the case.

The trial court denied Dixon’s motion, reasoning that the
case was five years old and that the defense mitigation work
had been “on going for well over four years.” Throughout
trial, Dixon maintained a “standing objection” that he was not
prepared to proceed.
 DIXON V. RYAN 11

At the time of Dixon’s trial, Maricopa County required in-
custody defendants to wear leg brace and stun belt restraints
while in court. Before trial, Dixon filed a motion to forgo use
of the leg brace to enable him to move freely about the
courtroom. The court denied Dixon’s motion based on the
jail policy.

The court warned Dixon of the possibility that the jury
might infer the presence of the restraints, which “could be
prejudicial,” and suggested that Dixon either remain seated in
the presence of the jury or position himself at the podium
before the jury entered the courtroom. Dixon again proposed
that he wear the stun belt only, and not the leg brace, but the
trial court rejected that option.

At a conference with the court, Dixon acknowledged the
risk that the jury might draw an inference from his movement
that he might be wearing restraints, and the trial court
determined that Dixon’s decision to use the podium to
examine witnesses was knowing, voluntary, and intelligent.
However, over the course of the trial, the court noted to
Dixon several times that the outline of the stun belt was
visible to the court. The judge instructed Dixon that he
should try not to turn his back to the jury or bend over so as
to minimize the visibility of the restraints.

The judge also warned Dixon twice that the leg brace
would cause him to walk in a stilted manner. Dixon
expressed concern that if the officers failed to apply the brace
to the same leg each day, the jury would “be confused . . . [if
the jury were to] see I’m limping on my left side, and one day
they see me limping on my right side.” The trial judge agreed
to instruct the deputies to make sure that Dixon’s leg brace
was consistently applied to Dixon’s right leg. Dixon alerted
12 DIXON V. RYAN

the court one morning that deputies had brought only a left-
leg brace. The trial judge agreed to change the brace out over
the noon hour and to remind deputies to use the right-leg
brace.

C

The jury convicted Dixon of both premeditated and felony
murder on January 15, 2008. Prior to the penalty phase,
Dixon again informed the court that his mitigation
investigation was not complete. Dixon’s advisory counsel
informed the court that, although the mitigation specialist still
required additional time to complete his investigation of
Dixon’s social history, a “substantial amount of mitigation
. . . could be presented” regarding Dixon’s “appreciation for
the wrongfulness of his conduct, family instability, parental
instability, mental disorders, mental health and substance
[abuse] issues.” Dixon’s advisory counsel informed the court
that the defense had four experts approved and retained with
regard to mental health and family history, as well as a
number of documents regarding Dixon’s life. Advisory
counsel represented to the court that they had informed Dixon
that they would present the evidence with the help of the
mitigation specialist, but that Dixon had chosen to present
only one expert witness. Dixon asserted that he could not
present mitigation evidence because the investigation was not
complete. Dixon claimed that he had met with only one
psychologist on two occasions and that the psychologist had
been unprepared.

At sentencing, the State argued that the death penalty was
warranted because of four aggravating factors: (1) Dixon had
previously been convicted of another offense for which,
under Arizona law, a sentence of life imprisonment was
 DIXON V. RYAN 13

imposed; (2) Dixon committed the offense in an especially
heinous manner; (3) Dixon committed the offense in an
especially cruel manner; and (4) Dixon committed the offense
in an especially depraved manner.

Dixon presented only one mitigation witness. The
witness, a former warden who reviewed Dixon’s prison
record, testified that, in his opinion, the correctional system
could manage Dixon if he were sentenced to life
imprisonment.

The jury determined that the State proved three
aggravating factors beyond a reasonable doubt: (1) Dixon had
been convicted of another offense for which, under Arizona
law, a sentence of life imprisonment was imposed (the 1985
assault of the NAU student); (2) Dixon committed the offense
at issue in an especially heinous manner; and (3) Dixon
committed the offense in an especially cruel manner. The
jury unanimously determined that Dixon should be sentenced
to death.

The Arizona Supreme Court affirmed Dixon’s conviction
and sentence on direct appeal. State v. Dixon (Dixon),
250 P.3d 1174, 1185 (Ariz. 2011). The United States
Supreme Court denied Dixon’s petition for certiorari.

D

Represented by counsel, Dixon filed a petition for post-
conviction relief in the Arizona Superior Court. Dixon raised
three claims: (1) that the Arizona Supreme Court deprived
Dixon of his right to a fair sentencing and due process when
it affirmed his death sentence; (2) that Dixon received
ineffective assistance of counsel for his trial counsel’s failure
14 DIXON V. RYAN

to challenge Dixon’s competency to waive counsel; and
(3) that Dixon was deprived of effective representation from
his advisory counsel for failure to challenge Dixon’s
competency to waive counsel, inform the court of Dixon’s
mental illness, and develop mitigation evidence relating to
Dixon’s mental health.

In support of his competency claims, Dixon offered the
report of Dr. Toma. Between April and June 2012, Dr. Toma
performed four neuropsychological and psychological
evaluations of Dixon and diagnosed Dixon with
schizophrenia, paranoid type, despite Dixon’s “adaman[ce]
that he [did] not suffer from a mental illness.” Dr. Toma
determined that Dixon was not capable of representing
himself and that his competence should have been
questioned. Dixon also offered a report by Dr. Patino, a
psychiatrist who performed a psychiatric evaluation and who
concluded that Dixon suffered from chronic paranoid
schizophrenia, noting Dixon’s paranoia and poor insight.
Dixon also submitted the report of Dr. Wu, who conducted a
PET scan in October 2012. The results were consistent with
schizophrenia and brain damage.

The court dismissed the petition without an evidentiary
hearing. The court determined that trial counsel’s
performance was neither deficient nor prejudicial and that
Dixon had no constitutional right to effective assistance of
advisory counsel. Dixon petitioned the Arizona Supreme
Court for review; his petition was denied.

E

Dixon filed a petition for writ of habeas corpus in the
United States District Court for the District of Arizona. The
 DIXON V. RYAN 15

district court denied the petition, vacated the stay of
Arizona’s warrant of execution, and granted a certificate of
appealability on three of Dixon’s thirty-six claims: (1) Claim
1, alleging ineffective assistance of counsel for trial counsel’s
failure to challenge Dixon’s competence to waive counsel
without a hearing; (2) Claim 3(A), alleging that the trial court
erred when it found Dixon competent to waive counsel; and
(3) Claim 9, alleging that the trial court violated Dixon’s
Eighth and Fourteenth Amendment rights when it denied his
final motion for a continuance to allow him to develop further
mitigation evidence.

Dixon now appeals the district court’s denial of his
habeas petition. In addition to the three certified issues,
Dixon raises three uncertified arguments: (1) the trial court
violated Dixon’s Sixth and Fourteenth Amendment rights
when it required that he wear visible shackles in the presence
of the jury without making an individualized determination
that an essential state interest justified the restraints;
(2) Dixon’s advisory standby counsel violated Dixon’s Sixth
and Fourteenth Amendment rights by failing to challenge
Dixon’s competency before the trial court; and (3) the trial
court violated Dixon’s Sixth, Eighth, and Fourteenth
Amendment rights by failing to instruct jurors during the
penalty phase that they must find the aggravating factors
outweighed the mitigating circumstances beyond a reasonable
doubt in order to impose a sentence of death.

II

Dixon’s habeas petition is subject to review under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d). AEDPA limits “the
availability of federal habeas relief . . . with respect to claims
16 DIXON V. RYAN

previously ‘adjudicated on the merits’ in state-court
proceedings.” Harrington v. Richter, 562 U.S. 86, 92 (2011).
The statute “bars relitigation” of such claims subject only to
two exceptions. Id. at 98. Under AEDPA, federal habeas
relief remains unavailable unless the state adjudication of the
claim:

(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

(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.

28 U.S.C. § 2254(d).

Under § 2254(d), a state prisoner “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.” Richter,
562 U.S. at 103.

Under § 2254(d)(1), “an unreasonable application of
federal law is different from an incorrect application of
federal law.” Id. at 101 (citations omitted). So long as
“fairminded jurists could disagree,” with respect to a state
court’s determination that a claim lacks merit, federal habeas
relief will not be granted. Id. at 101 (citation omitted).
 DIXON V. RYAN 17

Similarly, under § 2254(d)(2), a state court’s factual
determination is “not unreasonable merely because the
federal habeas court would have reached a different
conclusion.” Wood v. Allen, 558 U.S. 290, 301 (2010).
“[Section] 2254(d)(2) requires that [the court] accord the
state trial court substantial deference.” Brumfield v. Cain,
135 S. Ct. 2269, 2277 (2015). “A state court’s factual
findings are unreasonable if ‘reasonable minds reviewing the
record’ could not agree with them.” Ayala v. Chappell,
829 F.3d 1081, 1094 (9th Cir. 2016) (quoting Brumfield,
135 S. Ct. at 2277).

Even where the state court unreasonably applied federal
law or unreasonably determined a critical fact, the petitioner
is not entitled to relief unless the habeas court “has ‘grave
doubt about whether’” the constitutional error “had [a]
‘substantial and injurious effect or influence’” on the jury’s
verdict; the petitioner must establish “actual prejudice.”
Davis v. Ayala, 135 S. Ct. 2187, 2197–98 (2015) (citations
omitted).

III

A

The district court properly held that Dixon’s Sixth
Amendment right to effective assistance of counsel was not
violated when his trial counsel elected not to challenge
Dixon’s competency to waive counsel, despite counsel’s
knowledge that Dixon had a history of mental health issues.
Dixon contends that, but for counsel’s deficient performance,
there is a reasonable probability that he would not have been
allowed to waive counsel and the result of the proceedings
would have been different. Dixon argues that the Arizona
18 DIXON V. RYAN

Superior Court’s denial of his petition for post-conviction
relief (“PCR”) thus rested on both an unreasonable
application of the clearly established ineffective assistance of
counsel standard and an unreasonable determination of facts.

An ineffective assistance of counsel claim is measured by
the standard set forth in Strickland v. Washington, 466 U.S.
668 (1984). To prevail under Strickland, a petitioner “must
show that counsel’s performance was deficient” and that “the
deficient performance prejudiced” the petitioner. Id. at 687.
This inquiry is “highly deferential.” Id. at 689.

Strickland’s first prong requires a showing that counsel’s
performance “fell below an objective standard of
reasonableness” at the time of the trial. Id. at 688. Defense
counsel is “strongly presumed to have rendered adequate
assistance” and, for a petitioner to prevail, must have “made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at
687, 690. With respect to the prejudice prong, a petitioner
must prove 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 a probability sufficient to undermine confidence
in the outcome.” Id.

More specifically, to succeed on a claim that counsel was
ineffective for failing to move for a competency hearing,
there must be “sufficient indicia of incompetence to give
objectively reasonable counsel reason to doubt defendant’s
competency” and “a reasonable probability that the defendant
would have been found incompetent.” Hibbler v. Benedetti,
693 F.3d 1140, 1149–50 (9th Cir. 2012) (quoting Stanley v.
Cullen, 633 F.3d 852, 862 (9th Cir. 2011)).
 DIXON V. RYAN 19

In the AEDPA context, moreover, the “pivotal question
is whether the state court’s application of the Strickland
standard was unreasonable,” which is “different from asking
whether defense counsel’s performance fell below
Strickland’s standard.” Richter, 562 U.S. at 101. Under this
“doubly deferential” standard, the court asks “whether it is
possible fairminded jurists could disagree that [the state
court’s decision is] inconsistent with the holding in a prior
decision of [the United States Supreme] Court.” Id. at 102.
Accordingly, “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is . . . difficult.”
Richter, 562 U.S. at 105.

The Arizona Superior Court correctly identified
Strickland as the applicable standard by which to measure
Dixon’s ineffective assistance of counsel claim. The court
ruled that Dixon had not demonstrated either deficient
performance or prejudice. In reaching this conclusion, the
court—presided over by the same judge who presided over
the Bowdoin murder trial—explained that it was aware at the
time Dixon moved to waive counsel “of information that
placed [Dixon’s] mental health at issue,” thus “counsel could
not have been ineffective in failing to give the [c]ourt
information it already had.” The court further recalled
Dixon’s acknowledgment during the colloquy of his 1977
Rule 11 competency proceedings, and noted that both Dixon
and counsel agreed that Dixon “had no mental problems that
would place his ability to waive the right to counsel in
jeopardy.” The court also noted that Dixon “was adamant
that he would not submit to [a competency] evaluation,” and
the court observed Dixon “to be able to adequately advance
his positions” and to be “cogent in his thought processes,
lucid in argument, and always able to respond to all questions
with appropriate answers.” Ultimately, the court found that
20 DIXON V. RYAN

Dixon’s “waiver of counsel was a knowing, voluntary, and
intelligent decision on the part of a competent individual.”

To determine whether the Arizona court’s application of
Strickland was unreasonable, we look to evidence in the
record of counsel’s performance to decide “whether there is
any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 105. Specifically, we examine
the record to decide whether it was reasonable for the Arizona
Superior Court to determine that the record lacked “sufficient
indicia of incompetence to give objectively reasonable
counsel reason to doubt defendant’s competency” or “a
reasonable probability that the defendant would have been
found incompetent.” Hibbler, 693 F.3d at 1149–50.

Although two doctors opined in 1977 that Dixon suffered
from schizophrenia and was not competent to stand trial,
nearly 30 years passed between those evaluations and
Dixon’s 2006 waiver of counsel. Further, the two evaluations
cited Dixon’s depression and indicated that competency
restoration was possible. In fact, a few weeks after the 1977
incompetency determination, a third psychiatrist determined
that Dixon’s mental health status had significantly changed,
that Dixon had been restored to competency, and that Dixon
was competent to stand trial. With respect to the 1985 assault
and resulting conviction, it does not appear from the record
that Dixon’s competency or mental health was at issue. The
1977 evaluations and the 1978 not guilty by reason of
insanity verdict thus shed little light on Dixon’s competence
at the time he chose to waive counsel in 2006.

In fact, the record contains no evidence of competency
issues at any time throughout the course of these proceedings.
The record instead demonstrates that, at the time Dixon
 DIXON V. RYAN 21

sought to represent himself, Dixon understood the charges
against him and the potential sentences, he was able to
articulate his legal positions and respond to questions with
appropriate answers, and that Dixon demonstrated rational
behavior. As to Dixon’s continued interest in the DNA
suppression issue (which Dixon cites as an indication that he
was not competent to waive counsel), Dixon’s interest in the
issue was not so bizarre or obscure as to suggest that Dixon
lacked competence.

The 2012 reports Dixon produced in support of his PCR
petition do not compel a contrary conclusion. In addition,
because they are necessarily retrospective, they likewise fail
to illuminate Dixon’s competence during the relevant time
period. Dr. Toma’s opinion, in particular, that Dixon was not
capable of representing himself, does not render unreasonable
the Arizona court’s conclusions in light of a record that
demonstrates that Dixon had mental health issues but had
previously been restored to competency.

The record supports the conclusions of the state court.
The record reflects that Dixon’s prior temporary
incompetence was depression-related and readily apparent in
Dixon’s demeanor, communication, and affect. Dixon
displayed no such issues before the trial court. When the
evidence of Dixon’s prior mental health issues is examined
through AEDPA’s deferential lens, the state court’s
application of Strickland was not unreasonable, because the
evidence before the trial court was temporally remote and
inconclusive. Likewise, although reasonable minds may
disagree about the import of Dixon’s past incompetency, the
record does not contain any evidence that Dixon was not
competent between 2002 and 2006, the time period
particularly relevant to the murder trial and Dixon’s waiver
22 DIXON V. RYAN

of counsel. Thus, the record demonstrates that the Arizona
Superior Court did not rely on an unreasonable determination
of the facts. We therefore affirm the district court’s denial of
Dixon’s petition for a writ of habeas corpus as to the first
certified issue.

B

The district court properly concluded that Dixon’s due
process rights were not violated by the state trial court’s
failure to hold a competency hearing sua sponte. Dixon
argues that substantial evidence before the court raised a good
faith doubt about his competence and that the trial court’s
failure to hold a hearing before finding him competent to
represent himself violated his right to due process. Dixon
also argues that the post-conviction court failed to hold an
evidentiary hearing, contrary to clearly established federal
law, and failed to acknowledge expert reports which indicated
that he suffered from some form of schizophrenia, brain
damage, and other disorders, reflecting an unreasonable
determination of the facts. Dixon again relies on the two
1977 competency evaluations, the 1978 not guilty by reason
of insanity verdict, and his continued pursuit of the motion to
suppress in support of his argument.

Although a criminal defendant has a Sixth Amendment
right to self-representation, the defendant must be competent
to waive counsel. Godinez v. Moran, 509 U.S. 389, 396
(1993) (citing Johnson v. Zerbst, 304 U.S. 458, 468 (1938)).
The standard a court must apply to a defendant’s request for
self-representation differs from the standard for competence
to stand trial. United States v. Ferguson, 560 F.3d 1060,
1061–62, 1067–68 (9th Cir. 2009) (citing Indiana v.
Edwards, 554 U.S. 164, 176–77 (2008)); compare Godinez,
 DIXON V. RYAN 23

509 U.S. at 396 (competence to stand trial requires a
“sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” and “a rational
as well as factual understanding of the proceedings against
him” (quoting Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam))).

The Supreme Court has not set forth a specific standard
for a criminal defendant’s competence to exercise his right to
self-representation, however, instead leaving the
determination of whether the defendant is competent to
conduct trial proceedings to the trial court’s discretion.
Edwards, 554 U.S. at 175–76. The Edwards court reasoned
that the trial judge “will often prove best able to make more
fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant.” Id.
at 177. Thus, a defendant may be in the “gray area,” where
he is competent to stand trial, but suffers from a mental
impairment such that he is not competent to conduct trial
proceedings. Id. at 172–77.

Due process “requires that a state court initiate a hearing
on the defendant’s competence to waive counsel whenever it
has or should have a good faith doubt about the defendant’s”
competence. Harding v. Lewis, 834 F.2d 853, 856 (9th Cir.
1987). “A good faith doubt exists when there is substantial
evidence of incompetence.” Id. (citing United States v.
Veatch, 674 F.2d 1217, 1223 (9th Cir. 1981)). Evidence of
incompetence “includes, but is not limited to, a history of
irrational behavior, medical opinion, and the defendant’s
behavior at trial.” Id.

Dixon cannot overcome the AEDPA deference that we
are required to apply to the Arizona Superior Court’s
24 DIXON V. RYAN

rejection of this argument. Although the record demonstrates
Dixon’s history of mental health and competency issues, the
record also contains evidence of Dixon’s competence at the
time he moved to represent himself, as discussed above.
Even under a higher competency standard for self-
representation, the PCR court’s determination without a
hearing that Dixon was competent to waive counsel and
represent himself was not an unreasonable determination of
the facts, nor was it contrary to clearly established federal
law. Dixon’s actions before the trial court indicated that he
understood the consequences of waiving his right to counsel
and that he possessed sufficient intelligence and competence
to participate in the proceedings. Dixon was responsive and
rational before the trial court, and he expressed himself
effectively. The court noted that Dixon was able to articulate
and advance his positions and to understand and respond
appropriately to questions. Although there was evidence that
Dixon lacked competence to stand trial in 1977, the record
does not demonstrate that this evidence of past incompetency
presents “substantial evidence” giving rise to “a good faith
doubt” as to Dixon’s competency to represent himself in
2006. We affirm the district court’s denial of Dixon’s
petition as to the second certified issue.

C

The district court properly held that the Arizona Supreme
Court’s opinion concluding that the trial court did not abuse
its discretion in denying Dixon’s final continuance motion
was neither contrary to, nor an unreasonable application of,
clearly established federal law. The court also did not err in
holding that the Arizona Supreme Court’s determination did
not rest on an unreasonable determination of the facts.
 DIXON V. RYAN 25

Dixon raised these claims on direct appeal to the Arizona
Supreme Court, and the Arizona Supreme Court rejected the
claims on the merits. That court stated that “Dixon was given
more than four years to develop mitigation” and that the trial
court did not err in considering the rights of the victim’s
parents and Dixon’s right to a speedy disposition. Dixon
argues that the Arizona Supreme Court’s conclusion is not
entitled to AEDPA deference because it (1) relied on
inaccurate representations made by Dixon’s advisory counsel
regarding the status of Dixon’s mitigation development;
(2) omitted evidence that Dixon’s mitigation case was not
close to being complete; and (3) failed to address the
impediments Dixon faced in developing his mitigation case.

1

Dixon argues that the Arizona Supreme Court’s decision
was contrary to, and unreasonably applied, clearly established
federal law because it ignored the specific circumstances
Dixon faced and precluded Dixon from presenting mitigating
evidence that a life sentence, rather than the death penalty,
was warranted. Specifically, Dixon asserts that the Arizona
Supreme Court’s decision violated Supreme Court precedent
by focusing primarily on the amount of time during which the
mitigation investigation had been ongoing, while ignoring the
individual impediments Dixon faced in preparing his
mitigation case. Clearly established federal law regarding the
denial of a continuance requires that the state court consider
the relevant circumstances before denying a continuance.
Ungar v. Sarafite, 376 U.S. 575, 589–90 (1964). However,
only “an unreasoning and arbitrary ‘insistence upon
expeditiousness in the face of a justifiable request for delay’
violates the right to the assistance of counsel.” Morris v.
26 DIXON V. RYAN

Slappy, 461 U.S. 1, 11–12 (1983) (quoting Ungar, 376 U.S.
at 589).

The Arizona Supreme Court’s conclusion that the trial
court appropriately considered Dixon’s circumstances in
denying the continuance does not amount to an unreasonable
application of Morris or Ungar. Although the trial court cited
the overall length of the case in denying the motion, the trial
court also cited the interests of the victims, and the mitigation
investigation done by prior counsel and mitigation specialists.
The trial court referenced the overall length of the case and
weighed the timely resolution of the case, among other
factors, so the denial was not an “unreasoning” or “arbitrary
‘insistence’” on an expeditious resolution of the case.
Morris, 461 U.S. at 11 (quoting Ungar, 376 U.S. at 589).

As to clearly established federal law governing the role of
mitigating evidence in capital sentencing, under the Eighth
and Fourteenth Amendments, a sentencer in a capital case
may “not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and
any circumstances of the offense that the defendant proffers
as a basis for a sentence less than death.” Lockett v. Ohio,
438 U.S. 586, 604 (1978) (emphasis omitted); see also Abdul-
Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Eddings v.
Oklahoma, 455 U.S. 104, 109 (1982). Because Dixon
contends that the denial of the final motion to continue cut
short the mitigation investigation and denied him the
opportunity to further investigate potential areas relevant to
mitigation, we consider whether the denial of the continuance
precluded the jury from considering or giving effect to any
relevant mitigation evidence.
 DIXON V. RYAN 27

Dixon himself determined what mitigation evidence to
present to the jury and was given an opportunity to present
the evidence during the penalty phase. Dixon acknowledged
that he did not want to present mitigating evidence related to
his family history and instead opted to call only one expert
witness to present evidence about Dixon’s history in prison
and the ability of the prison system to control him. Although
his mitigation investigation may have been incomplete, the
denial of the final continuance did not preclude the jury from
considering or giving mitigating weight to any category of
evidence in the way the sentencers were precluded from
weighing the mitigating evidence in Lockett, Abdul-Kabir,
and Eddings.

As distinguished from the cases cited by Dixon, the jury
here was not precluded, as a matter of law, from considering
any mitigation evidence. Neither the sentencing statute, nor
the trial judge’s instructions, prevented the jury from
considering mitigating evidence or giving mitigating weight
to Dixon’s character and record or the circumstances of the
offense. See Lockett, 438 U.S. at 593–94, 604–06 (holding
that the Ohio death penalty statute, which required imposition
of the death penalty once a defendant was found guilty of
aggravated murder with at least one of seven specified
aggravating factors, unless one of three specified mitigating
factors was established by a preponderance of the evidence,
violated the Eighth and Fourteenth Amendments because the
statute limited the range of mitigating factors that the
sentencer could consider); see also Abdul-Kabir, 550 U.S. at
237–244, 263–64 (holding that, although defendant presented
mitigating evidence, the trial judge’s refusal to give
defendant’s requested instructions prevented the jury from
considering the mitigating evidence); Eddings, 455 U.S. at
110, 112–14 (the court’s determination that, as a matter of
28 DIXON V. RYAN

law, it was unable to consider Eddings’ violent family
history, had the same effect as an instruction to the jury to
disregard Eddings’ mitigating evidence, and violated the
Eighth and Fourteenth Amendments by precluding the
sentencer from considering Eddings’ character).

2

The district court also properly concluded that the
Arizona Supreme Court’s determination that the trial court
did not abuse its discretion in denying the final request for a
continuance did not rest on an unreasonable determination of
the facts. In his final motion to continue, Dixon detailed a
number of reasons why a three month continuance was
necessary. Specifically, Dixon highlighted a change in
mitigation specialists, delays caused by his incarceration, an
overall inability to access legal resources while incarcerated,
and an inability to schedule interviews with potential
witnesses. In support of his motion, Dixon attached a letter
from his current mitigation specialist which expressed the
view that there was “no way ethically to proceed to trial.”
The specialist cited delays in reviewing mitigation documents
and interviewing witnesses and the appointment of expert
witnesses.

Dixon now argues that the Arizona Supreme Court’s
decision is premised on an unreasonable factual
determination because the court relied on an inaccurate
representation made by Dixon’s advisory counsel that a
substantial amount of mitigation evidence had already been
prepared, omitted evidence that the mitigation case was not
complete, and unreasonably determined that the trial court
appropriately considered Dixon’s interests.
 DIXON V. RYAN 29

Although Dixon asserted that he faced a number of delays
in and impediments to completing a thorough mitigation
investigation and that the mitigation specialist indicated he
had not yet completed the investigation, the Arizona Supreme
Court did not rely on an unreasonable determination of the
facts in concluding that the trial court did not abuse its
discretion by denying the continuance. Rather, the court
relied on the representations made to it by Dixon’s advisory
counsel as to the mitigation evidence available. Although the
advisory counsel’s representations conflicted with Dixon’s
and the mitigation specialist’s opinions, that the Arizona
Supreme Court gave greater weight to the advisory counsel’s
representations does not amount to an unreasonable
determination of the facts. Under the relevant standard,
reasonable minds might disagree as to which statements the
court should have credited, especially because advisory
counsel recognized the incomplete status of the investigation
in their representations regarding how much of the mitigation
investigation had been completed.

The Arizona Supreme Court also acknowledged the many
continuances granted by the trial court to allow Dixon to
develop more mitigation evidence, the overall length of the
case, Dixon’s interests, and the victims’ rights. Consideration
of these factors is supported by the record, and the finding
that the trial court did not abuse its discretion in denying the
continuance was not unreasonable. For its part, the trial court
reviewed a chronology of the case, the mitigation specialist’s
work on the case, and the victims’ objections to a
continuance. The trial court and the Arizona Supreme Court
ultimately gave more weight to the overall length of the
case, the victim’s interests, and the advisory counsel’s
representations than to Dixon’s claimed delays and
impediments. The PCR court’s ultimate determination that
30 DIXON V. RYAN

the trial court’s decision was not an abuse of discretion did
not rest on an unreasonable determination of the facts.

IV

A

When the district court issues a COA on some, but not all,
of the issues the petitioner wishes to raise on appeal,
uncertified issues raised on appeal “will be construed as a
motion to expand the COA.” Murray v. Schriro, 745 F.3d
984, 1002 (9th Cir. 2014) (citation omitted). Under AEDPA,
a petitioner must make a “substantial showing of the denial of
a constitutional right” in order to obtain a COA. 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000);
Murray, 745 F.3d at 1002. The petitioner “must demonstrate
that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484. The petitioner “must demonstrate that
the issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed
further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000) (citation and brackets omitted). However, the
threshold inquiry for certification is a “modest” one. Id.
at 1027; see also Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).

We conclude that Dixon has satisfied this standard as to
his claim that the state trial court denied his constitutional
right to a fair trial by requiring him to wear restraints during
trial. 28 U.S.C. § 2253(c)(2). We deny the motion to expand
the COA as to the other issues.
 DIXON V. RYAN 31

B

“The 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, 626 (2005). The
Constitution also “forbids the use of visible shackles during
the penalty phase, as it forbids their use during the guilt
phase, unless that use is ‘justified by an essential state
interest’—such as the interest in courtroom security—specific
to the defendant.” Id. at 624 (quoting Holbrook v. Flynn,
475 U.S. 560, 568–69 (1986)). This “constitutional
requirement, however, is not absolute.” Id. at 633. In the
exercise of his or her discretion, a judge may take into
account “special circumstances, including security concerns,
that may call for shackling . . . [b]ut any such determination
must be case specific.” Id.

The Arizona Supreme Court acknowledged that the trial
court failed to make the requisite “particularized finding of
the need for security measures” before requiring Dixon to
wear stun belt and leg brace restraints. Dixon, 250 P.3d
at 1180. Nevertheless, the Arizona Supreme Court
determined that Dixon could not succeed on his restraint
claim because he failed to show that the jury actually saw the
restraints. Id. at 1181. Furthermore, the court determined
that any improperly-imposed visible restraint would have
constituted harmless error because it was “clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Id. (quoting Hymon v.
State, 111 P.3d 1092, 1099 (Nev. 2005)).

The Arizona Supreme Court adjudicated Dixon’s guilt-
phase shackling claims on the merits on direct appeal. Dixon,
32 DIXON V. RYAN

250 P.3d 1179–82. We treat Dixon’s penalty-phase restraints
claims as adjudicated on the merits as well; although the
Arizona Supreme Court did not specifically address them,
they are identical to Dixon’s guilt-phase claims. In addition,
“[i]f a federal claim [is] presented to the state court and the
state court denie[s] all relief without specifically addressing
the federal claim, ‘it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.’”
Amado v. Gonzalez, 758 F.3d 1119, 1131 (9th Cir. 2014)
(quoting Richter, 562 U.S. at 99). Section 2254(d) applies
“even where there has been a summary denial.” Cullen v.
Pinholster, 563 U.S. 170, 187 (2011). Habeas relief is
therefore available on these claims only if Dixon can
overcome AEDPA deference. Dixon argues that he has
overcome AEDPA under both § 2254(d)(1) and (d)(2).

1

Dixon contends that the Arizona Supreme Court
contravened clearly established federal law “[b]y placing the
burden on Dixon to prove that his leg restraint was not visible
and that he was therefore not prejudiced by his erroneous
shackling.”

The Arizona Supreme Court correctly identified Deck as
controlling federal authority and framed the “central issue” as
“whether the restraints” used on Dixon “were visible” to the
jury. The court determined that Dixon provided “no evidence
. . . that the jury either saw the brace or inferred that Dixon
wore one” and “the reported decisions correctly treat a leg
brace worn under clothing as not visible in the absence of
evidence to the contrary.” Dixon argues that requiring him to
prove that the jury saw the restraints impermissibly shifted
 DIXON V. RYAN 33

the burden of the harmless error analysis to him, contravening
Chapman v. California, 386 U.S. 18 (1967).

Dixon relies on Dyas v. Poole, 317 F.3d 934 (9th Cir.
2003) (per curiam), to support his claim. In Dyas, “[t]he
California Court of Appeal held that keeping Dyas shackled
during trial was constitutional error . . . [but] then ruled . . .
that the error was harmless because the trial court had ‘found’
that the jurors would not be able to see the shackles from the
jury box.” Id. at 936. We held that “the state court of appeal
held against Dyas the absence of evidence of what the jury
could see, which was contrary to the requirement of
Chapman, 386 U.S. at 24, that the prosecution bear the
burden of showing harmlessness beyond a reasonable doubt.”
Dyas, 317 F.3d at 937.

The State inarguably bears the burden to prove
harmlessness. Chapman, 386 U.S. at 24. Dixon’s reliance
on Dyas, however, improperly conflates the inquiry as to
whether the restraints were visible to the jury—which is
relevant to whether Dixon has demonstrated a constitutional
violation under Deck—with the harmless error inquiry, which
places the burden on the government to prove that the jury
would have found Dixon guilty absent the error. See Deck
544 U.S. at 635.1 While visibility is relevant to both
considerations, the question here is whether Dixon was
prejudiced under Deck by the jury’s ability to see the

1
Dyas itself is not relevant to our analysis of whether the Arizona
Supreme Court unreasonably applied Supreme Court precedent because,
as the Supreme Court has “repeatedly pointed out, circuit precedent does
not constitute clearly established Federal law, as determined by the
Supreme Court.” Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (quoting Glebe
v. Frost, 135 S. Ct. 429, 430 (2014)).
34 DIXON V. RYAN

restraints, which Dixon must show to succeed on his claim.
The Arizona Supreme Court’s determination that Dixon was
not prejudiced because the jury did not see the restraints was
neither an unreasonable determination of the facts nor was its
application of Deck contrary to clearly established federal
law. In the alternative, the Arizona Supreme Court held that
any error under Deck was harmless, and the Arizona Supreme
Court did not base its harmless error determination on a lack
of visibility. Rather, the court proceeded to analyze harmless
error despite its previous determination that the restraints
were, in fact, not visible to the jury (and therefore there was
no violation of “the rule announced in Deck”). Dixon,
250 P.3d at 1181. The Court determined that “the DNA
evidence” and “the circumstances of the crime” rendered any
error resulting from the improper imposition of “visible
restraints” harmless. Id.

The Arizona Supreme Court did not apply Chapman in an
objectively unreasonable manner. See Ayala, 135 S. Ct. at
2198. Under § 2254(d)(1), “an unreasonable application of
federal law is different from an incorrect application of
federal law.” Richter, 562 U.S. at 101 (citation omitted). So
long as “fairminded jurists could disagree,” with respect to a
state court’s determination that a claim lacks merit, federal
habeas relief will not be granted. Id. Under this standard,
because the Arizona Supreme Court engaged in a harmless
error analysis that assumed visibility, Dixon’s claim fails.

2

The district court properly concluded that the Arizona
Supreme Court’s factual conclusions were not unreasonable.
“A state court’s factual findings are unreasonable if
 DIXON V. RYAN 35

‘reasonable minds reviewing the record’ could not agree with
them.” Ayala, 829 F.3d at 1094 (citation omitted).

The Arizona Supreme Court determined that it should
treat restraints worn under clothing “as not visible in the
absence of evidence to the contrary.” Dixon, 250 P.3d at
1181. The court explained, with regard to the leg brace, that
there was “no evidence” that the brace was visible or that the
jury inferred that Dixon was restrained. Id. As to the stun
belt, the court noted Dixon’s failure to object to the stun belt
below and explained that, under fundamental error review,
Dixon “must show that [the stun belt] was visible to the jury.”
Id. The court concluded that Dixon “ha[d] not met that
burden.” Id. Dixon argues that these factual determinations
“patently ignored evidence in the state court record that both
the stun belt and leg restraint were, indeed, visible.”

Dixon argues that evidence in the record supports that the
jury saw or inferred that he was wearing a leg brace. The
only evidence in the record regarding the effect of the leg
brace on Dixon’s gait appears where the court twice warned
Dixon that the leg brace could cause him to walk “in some
sort of stilted fashion” in front of the jury. Dixon expressed
concern about the jury’s observing him limping on different
legs depending on which leg the brace was applied to, which
the court attempted to mitigate by asking deputies to
consistently use a right leg brace.

None of the evidence presented in the state court
proceeding establishes that the state court made an
unreasonable factual determination when it ruled that “no
evidence” suggested that the brace was visible or that the jury
inferred restraint. Dixon, 250 P.3d at 1181. First, nowhere in
the record does any party suggest or comment that the leg
36 DIXON V. RYAN

brace itself actually was visible. Second, the record suggests
no more than the possibility that the jury may have seen
Dixon limp. Even if the jury saw Dixon limp inconsistently,
this does not render the Arizona Supreme Court’s
determination unreasonable, because “reasonable minds
reviewing the record” could disagree that this evidence
supports a conclusion that the jurors did not actually infer the
presence of the brace. Ayala, 829 F.3d at 1094 (citation
omitted).

Dixon likewise argues that the trial judge’s repeated
observations regarding the visibility of the stun belt
constituted factual determinations deserving of deference and
render the Arizona Supreme Court’s subsequent factual
determination unreasonable.

The Arizona Supreme Court acknowledged the trial
judge’s comments that, when Dixon turned his back towards
the jury and bent over, the outline of the stun belt protruded,
and the belt was “very” and “readily” visible, and the trial
court cautioned Dixon several times that it was apparent that
Dixon was wearing the belt. The Arizona Supreme Court
dismissed these comments as “speculat[ion] that jurors might
be able to see” the belt. Dixon, 250 P.3d at 1181. The court
then determined only that Dixon had not demonstrated that
“the jury actually saw the belt or inferred its presence.” Id.
This does not amount to an unreasonable factual
determination based on the evidence available to the state
court such that “‘reasonable minds reviewing the record’
could not agree with [it].” Ayala, 829 F.3d at 1094 (citation
omitted).
 DIXON V. RYAN 37

For the foregoing reasons, Dixon cannot overcome
AEDPA deference on the restraints claims, and we affirm the
district court’s denial of the petition as to this issue.

V

We affirm the district court’s denial of the writ of habeas
corpus. We expand the COA to include the question of
whether Dixon’s constitutional rights were violated at trial
through use of restraints, but affirm the district court’s denial
of the writ on that issue. We decline to expand the COA
further.

AFFIRMED.