Hedlund

Concurrence by

Partial Concurrence and Partial Dissent by JudgeWARDLAW

ORDER

The opinion filed March 4, 2016, and reported at 815 F.3d 1233 , is hereby amended concurrent with the filing of an Amended Opinion today. With these amendments, Judges Bea and N.R. Smith voted to deny the petition for rehearing en banc, and Judge Wardlaw voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed in response to the amended disposition.

OPINION

Petitioner Charles Michael Hedlund, an Arizona state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition. A jury convicted Hed-lund of one count of first degree murder for the 1991 killing of Jim McClain. The trial court sentenced Hedlund to death for the murder. The jury also convicted Hed-lund of the second degree murder of…

concurring in part and dissenting in part:

I join Parts II, III, and VI of the majority opinion. The Arizona Supreme Court’s Eddings error requires us to grant the writ with respect to Hedlund’s sentence. See 28 U.S.C. § 2254 (d). I have previously explained my disagreement with the majority’s disposition of Hedlund’s claims of unconstitutional shackling during trial and ineffective assistance of counsel during the plea process and penalty phase. Hedlund v. Ryan, 750 F.3d 793, 831-43 (9th Cir. 2014) (Wardlaw, J., concurring in part and dissenting in part). I see no need to do so again here.

The majority opinion correctly concludes that the Arizona state courts violated Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), in their treatment of Hedlund’s mitigating evidence. They “did precisely what Eddings prohibits: they found mitigating evidence of Hed-lund’s abusive childhood as a matter of fact, but treated it as non-mitigating as a matter of law because it lacked a causal connection to the crime.” Hedlund, 750 F.3d at 826 (Wardlaw, J., concurring in part and dissenting in part).

It is unfortunate that Judge Bea believes it is “more difficult to find a…

concurring:

I write separately to express my own views as to Part VI of the majority opinion, which holds that the Arizona Supreme Court applied a “causal nexus” test to Hedlund’s nonstatutory mitigating evidence, in violation of Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982). Our about-face on this issue, see Hedlund v. Ryan, 750 F.3d 793, 813-20 (9th Cir. 2014) (finding no Eddings error), is solely the result of our court’s recent decision in McKinney v. Ryan, 813 F.3d 798 (9th Cir.2015) (en bane). For the reasons discussed at length in my McKinney dissent, id. at *25-*45 (Bea, J., dissenting), I think our analysis of the Ed-dings issue was wrong and conflicts with Supreme Court precedent- requiring us to “presumfe] that state courts know and follow the law,” Woodford v. Visciotti, 537 U.S. 19, 24 , 123 S.Ct. 357 , 154 L.Ed.2d 279 (2002). I will not here rehash that dissent.

It is unfortunate that McKinney’s errors have determined this case, because it is more difficult to find a true Eddings violation here than it was in McKinney . As detailed below, Judge Sheldon, the trial judge who sentenced both Hedlund and McKinney to death, was crystal clear…