Argued and Submitted December 6, 2012—Pasadena, California
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:03-cv-00774-DGC
Ivan K. Mathew (briefed and argued) and Susan T. Mathew (briefed), Mathew & Associates, Phoenix, Arizona, for Petitioner-Appellant.
Jon G. Anderson, Assistant Attorney General, Capital Litigation Division, Phoenix, Arizona, for Respondent-Appellee.
Before: Kim McLane Wardlaw, Carlos T. Bea, and N. Randy Smith, Circuit Judges.
Habeas Corpus/Death Penalty
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a murder conviction and capital sentence.
The panel held that the use of dual juries, one for petitioner and one for his co-defendant, did not violate clearly established federal law, despite petitioner's claim that this method led to a prejudicial courtroom layout where petitioner sat facing the jurors throughout trial. The panel held that petitioner procedurally defaulted on his other dual juries challenges.
The panel held that petitioner procedurally defaulted on his claim that the trial court violated his rights by requiring him to wear a leg brace during trial.
The panel rejected petitioner's claim, under Lockett v. Ohio, 438 U.S. 586 (1987), and Eddings v. Oklahoma, 455 U.S. 104 (1982), that the trial court did not adequately consider mitigating factors in imposing the death penalty, explaining that these cases only hold that a sentencer must fully consider proffered mitigating evidence, and do not affect a sentencer's determination of the weight of the evidence.
Judge Wardlaw concurred in part and dissented in part. She agreed with the majority's conclusion that the denial of relief as to petitioner's dual juries and shackling claims must be upheld for failure to exhaust them. However, she disagreed with the majority's analysis of the Eddings claim, and would reverse the district court's denial of relief and instruct that court to grant the petition as to that claim.
N.R. SMITH, Circuit Judge:
Petitioner James Erin McKinney, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. The Arizona state court sentenced McKinney to death on each of two counts of first-degree murder for the 1991 killings of Christene Mertens and Jim McClain. We affirm the district court.
In this opinion we address three claims raised in McKinney's petition: (1) the trial court's use of dual juries at trial; (2) the trial court's use of a leg brace as a security measure during trial; and (3) whether the sentencing judge properly considered all mitigating evidence under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982). McKinney failed to exhaust each of these claims except one of his several dual juries claims and the Lockett/Eddings claim. McKinney's unexhausted claims are procedurally defaulted, because he would now be barred from raising them to the Arizona state courts. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (citing Ariz. R. Crim. P. 32.2(a)). As to the remaining claims, the Arizona Supreme Court's decision to deny relief was not contrary to, nor an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts before that court. See 28 U.S.C. § 2254(d).
FACTS AND PROCEDURAL HISTORY
A. Background 
On February 28, 1991, McKinney and his half brother, co-defendant Michael Hedlund, committed the first in a string of five residential burglaries. Before this first burglary, McKinney and Hedlund (collectively, "Defendants") were driving in Hedlund's car with Chris Morris and Joe Lemon, discussing potential targets. Brandishing his gun, McKinney stated that he would shoot anyone that they found at home during the burglaries. Hedlund said that he would beat anyone that he encountered in the head.
At the time, Defendants had learned from Morris and Lemon that Christene Mertens supposedly kept thousands of dollars in an orange juice container in her refrigerator. Therefore, Defendants and Morris and Lemon intended to burglarize Mertens's home on the first night of the burglary spree. However, Mertens came home and scared the would-be burglars away. As a result, the four of them chose a different house to burglarize, but obtained nothing of value from the burglary.
The next night, McKinney, Hedlund, and Morris committed two more burglaries. Lemon was not involved. McKinney and Morris stole a .22 revolver, twelve dollars, some wheat pennies, a tool apron, and a Rolex watch—splitting the "proceeds" with Hedlund after the crimes. When the homeowner returned home during the third burglary, McKinney and Morris ran away, leaving the homeowner unharmed. However, after the burglary, McKinney remarked that he and Morris "should have stayed and [McKinney] would have shot [the homeowner]."
On March 9, 1991, McKinney and Hedlund returned to the Mertens home for the fourth burglary. When they entered the residence, Defendants found Mertens home alone and attacked her. After the attack Mertens had both gunshot and stab wounds. However, the medical examiner certified the cause of death as "a penetrating contact gunshot wound to the head." Defendants ransacked the house and stole $120 in cash.
Defendants committed the fifth burglary and second murder at the home of Jim McClain on March 22, 1991. Defendants knew McClain, because Hedlund had bought a car from him about six months before the murder. McClain's house was ransacked during the course of the burglary, and he was shot in the back of the head while sleeping. Defendants stole a pocket watch, three handguns, and McClain's car. Defendants later tried to sell the stolen guns.
McKinney was tried on two counts of first degree murder, two counts of burglary, one count of theft, and one count of attempted theft. The trial court tried Defendants together, but empaneled separate juries to decide the guilt of each Defendant. The trial court required both Defendants to wear a leg brace as a security measure throughout the trial. McKinney's jury found him guilty of all charges, except the attempted theft charge. The trial judge sentenced McKinney to death on each first degree murder conviction. State v. McKinney, 917 P.2d 1214, 1218 (Ariz. 1996) (en banc), superseded by statute on other grounds as stated in State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000) (en banc).
B. Post-conviction proceedings
The Arizona Supreme Court upheld McKinney's convictions and sentence on direct appeal. McKinney, 917 P.2d at 1234.
McKinney thereafter challenged his convictions and sentence in post-conviction collateral proceedings. The Maricopa County superior court (the "State PCR Court") concluded that none of the claims raised in McKinney's operative petition for post-conviction relief (the "PCR Petition") presented material issues of fact or law to warrant further proceedings. The State PCR Court summarily dismissed the petition. McKinney appealed the dismissal of the PCR Petition to the Arizona Supreme Court, which denied review on all claims relevant to this appeal.
Thereafter, McKinney raised 26 claims in his petition for writ of habeas corpus to the U.S. District Court for the District of Arizona. The district court denied relief on a number of these claims in 2006 and on the remaining claims in 2009. In its order denying relief, the district court granted a certificate of appealability ("COA") on the issues of whether the trial court's use of dual juries or a leg brace violated McKinney's rights. The district court denied a COA on the remaining issues.
STANDARD OF REVIEW
"We review de novo the district court's decision to grant or deny a petition for a writ of habeas corpus." Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir. 2010).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this case. See Lindh v. Murphy, 521 U.S. 320, 336–37 (1997); Lopez v. Schriro, 491 F.3d 1029, 1036–38 (9th Cir. 2007). A petitioner must overcome a high threshold to obtain relief under AEDPA:
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision was contrary to federal law then clearly established in the holdings of [the Supreme] Court, § 2254(d)(1); or that it involved an unreasonable application of such law, § 2254(d)(1); or that it was based on an unreasonable determination of the facts in light of the record before the state court, § 2254(d)(2).
Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (internal quotation marks and citation omitted).
The "only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision." Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003)). If Supreme Court "cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal quotation marks omitted). In other words, "'[i]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme Court].'" Richter, 131 S.Ct. at 786 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
In cases where a petitioner identifies clearly established federal law and challenges the state court's application of that law, our task under AEDPA is not to decide whether a state court decision applied the law correctly. See id. at 785. Rather, we must decide whether the state court decision applied the law reasonably. See id. ("'[A]n unreasonable application of federal law is different from an incorrect application of federal law.'" (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). If the state court applied the law reasonably, we must deny relief. See id. Thus, we grant relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. at 786.
I. Dual Juries Claims
McKinney raises a number of claims based on the trial court's use of dual juries. However, McKinney exhaustedonly one of them in the state courts, as AEDPA requires—his claim that the use of dual juries led to a prejudicial courtroom layout where McKinney sat facing the jurors throughout trial. McKinney's "courtroom layout" claim fails, because he has failed to identify clearly established federal law that would provide the basis for relief under § 2254(d)(1). McKinney failed to exhaust any of the other potential dual juries claims and would now be barred from raising these claims in state court. See Beaty, 303 F.3d at 987 (citing Ariz. R. Crim. P. 32.2(a)). Accordingly, McKinney's "other" dual juries claims are procedurally defaulted,  and he has not shown cause or prejudice to excuse the default. See id.
A. Background and procedural history
Before trial, Hedlund moved to sever his case from McKinney's, and the State did not oppose the motion. The trial court initially granted the motion to sever. The trial court later asked the parties for briefing on the idea of using dual juries.
Thereafter, the trial court held a hearing on the use of dual juries. The State opposed the practice based on a perceived state procedural obstacle set forth in State v. Lambright, 673 P.2d 1 (Ariz. 1983) (en banc), overruled by Hedlund v. Sheldon, 840 P.2d 1008 (Ariz. 1992) (en banc). McKinney shared the State's Lambright concern and argued that it would be improper for the court to employ an untested dual jury procedure. McKinney also argued that severance was required to avoid the introduction of impermissible, incriminating testimony under Bruton v. United States, 391 U.S. 123 (1968).
The trial court concluded that the use of the dual juries would not impede Defendants' right to fair trial, and found no inherent prejudice in the use of dual juries. At trial, both Defendants' juries were present in the courtroom, except during "the reading of charges, opening statements, closing arguments, and testimony related to a particular defendant's inculpatory statements." Both before and during trial, the trial court reminded counsel to preserve the integrity of the dual jury procedure and to avoid eliciting testimony non-admissible against the other codefendant under Bruton.
Before trial, McKinney challenged the use of dual juries in a special action to the Arizona Court of Appeals. See Hedlund, 840 P.2d at 1009. The court of appeals reversed, holding that the trial court exceeded its authority under the Arizona Rules of Criminal Procedure and the Arizona Supreme Court's decision in Lambright. Id. The Arizona Supreme Court reversed the court of appeals and affirmed the trial court's decision to use dual juries. Id. at 1011.
On direct appeal of his conviction and sentence, McKinney claimed that the dual juries caused the courtroom layout "with Defendants facing the jurors, [to be] intimidating and resulted in fundamental error requiring reversal." McKinney, 917 P.2d at 1232. The Arizona Supreme Court rejected this argument, concluding that McKinney could not demonstrate prejudice and provided no authority for "a constitutional right to a standard American courtroom arrangement." Id.
McKinney raised the "courtroom layout" issue again in his PCR Petition. The State PCR Court rejected McKinney's argument that the courtroom layout "tainted" the proceedings. McKinney also argued in the PCR Petition that the use of the dual juries violated his "right to a fundamentally fair trial" for a number of other reasons. However, McKinney did not invoke the ...