F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T A L L E N P O Y S O

N , Petitioner-Appellant

,

v.

C H A R L E S L

. R Y

A N , Respondent-Appellee

. No. 10-99005

D.C. No. 2:04-cv-00534-NVW

ORDER AND AMENDED OPI

NI ON

A ppeal from the United States District Court for the District of Ariz o na N eil V. W a k e , District J udg e, Presiding

Arg ued and Submitted F ebruary 15, 2012—San F rancisco, California

F iled March 22, 2013 Amended November 7, 2013

B efore: Sidney

R. Thomas, Ray

mond C. F isher, and Sandra S. I kuta, Circuit J udg es.

Order; Dissent to Order by

Chief J udg e Koz inski; Opinion by

J udg e F isher; Partial Concurrence and Partial Dissent by J udg e ThomasP O Y S O N V

. R Y A N 2

SUMMARY *

Habeas Corpus/Death P e nalty

The panel issued an order deny ing a petition for panel

r e h e a r ing and rehearing en banc, filed an amended o pinion, and ordered that no further petitions will be entertained.

I n t h e amended opinion, the p anel affirmed the district court’s denial of a 28 U.S.C. § 2254 h abeas corpus p e tition b y

an Ariz ona state prisoner challeng ing a conviction and capital sentence for murder.

The panel first held that the A r i z o na Supreme Court did
not deny p etitioner h i s rig ht to individualiz ed sentencing b y apply ing a

n un constitutional causal nex us test to potentially mitig ating evidence, because the panel could no t presume a constitutional violation f

rom an ambig uous rec o r d that did
not c ontain a “clear indication” that the court applied such a test as an unconstitutional screening mechanism, as opposed
to a permissible m eans of determining the weig ht o r sig nificance of mitig ating evidence.

The panel nex t denied relief o n petitioner’s claim that the Ariz ona courts failed to consider h is history of substance abuse as a nonstatutory mit i ga t i n g f actor. T h e panel

ex p lained that the sta t e c ourts c onsidered the evidence a nd found it wanting as a matter of fact because it failed to prove

a history of substance abuse, and that the state supreme court

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P O Y S O N V

. R Y A N 3

did not misconstrue the state trial c ourt’s finding s so a s to deny petitioner of meaning ful appellate review.

F inally

, the panel ag r eed with the district court t hat petitioner’s ineffective a s s i s t ance of counsel claim is procedurally d efaulted because it is fundamentally d i f f e rent from the claim pres e n t e d in state c ourt such that the state courts had no meaning ful opportunity to consider it.

Concurring in part and dissenting in part, J udg e Thomas would hold that the state c o u r t unconstitutionally ex cluded mitig ating evidence from consid e r a t ion because it was not causally related to the crimes.

Chief J udg e Koz inski dissented fro m t h e denial o f rehearing en banc, joined by J udg es P re g erson, Reinhardt, Thomas, McKeown, Wardlaw, W

. F letcher, Pa e z , B e rz on, M u rg u ia, Christen and W a tford. Chief J udg e Koz inski adopted the ex planation in J udg e T homas ’ amended dissent that the majority ’s decision, to d eclare the r e co r d too ambig uous to interpret, contravenes Supreme Court authority and undermines Circuit law. Chief J udg e K oz inski pointed
out that the court must “suture [ a] fissure in our circuit law,”
reg arding the standard of review of a state court’s a pplication of the causal nex us test.P O Y S O N V

. R Y A N 4

COUNSEL

J on M. Sands, F ed e r a l P u b lic Defender, Michael L

. B urke (arg ued), Assistant F eder a l Public Defender, Ng oz i V

. N d u l u e , A s s i s t a

n t F e d e r a l Public Defender, Phoenix

, Ariz o n a , for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, D ivision Chief, Criminal Appeals/Capital L itig ation Division, J on G. Anderson ( arg ued), Assistant Attorney G e neral, Capital L itig ation Section, Phoenix

, Ariz o n a, for RespondentAppellee.

ORDER

J udg e Thomas has voted to g rant the peti tion for panel hearing and petition for r ehearing e n banc. J udg es F isher a nd I kuta have voted to deny the petition f or pane l r eh e aring

. J udg e I kuta has voted to deny the petition for r e h e a ring en banc and J udg e F isher has so recommended.

The full court w as advised of the petition for rehearing en banc. A j u d ge requested a vote on whether to rehear the
matter en banc. T he matter failed to receive a majority of the

v o t e s of the nonrecused active judg es in favor o f en b a n c consideration. F ed. R. App. P. 35(f).

Appellant’s petition for panel rehearing and rehearing en banc, filed April 12, 2013, is denied. Chief J u dg e K oz inski’s dissent from d enial of en banc rehearing is filed concurrently with this Order.P O Y S O N V

. R Y A N 5

* * * * *

This opinion filed at 711 F .3d 1087 (9th Ci r

. 2 0 1 3 ) is amended, and an Amended Opinion is filed concurrently with this Order.

No further petitions will be entertained.

Chief J udg e KOZ I

NSKI
, with whom J udg es PREGERSON, REI NHARDT, THOMAS, MCKEOW N, WARDL AW
, W

. F L ETCHER, PAE Z
, B E R Z ON, MURGUI A, CHRI STEN and WATF ORD join, dissenting fro m the order deny ing the petition for rehearing

en banc:

J ust how o bvious does a state court’s constitutional error have to be when a man’s life is on the line? According to the
p a n el majority

, indisputably obvious, which is “bey ond a reasonable d oubt” stood on its h e a d. J udg e Thomas’s powerful dissent e x plains h ow the majority ’s decision to “throw up [ its] hands and declare the record too am b ig uous to definitively interpret one w ay or the other,” Amended Dissent at 49 n.3, contravenes Supreme Court auth ority a nd undermines our c ircuit law. See Tennard v. Dretke

, 542 U.S. 274 (2004); Eddings v. O kl a h o ma , 455 U.S. 104 ( 1 982); Lope z v

. Ryan
, 6 30 F .3d 1198 (9th Cir. 2011). N o need to repeat his arg

uments; we adopt them, chapter and verse.

The issue w ill not g o away

. Th er e a r e many more cases in the pipeline where s t ate courts in our circuit applied a causal nex us test b e f

o r e affirming a sentence of death. W e can’t long continue down the path forg ed by the majority

, which forces panels to choose betwe e n t w o materiallyP O Y S O N V

. R Y A N 6

different standards of review in causal nex us cases: the newly minted “clear indication” standard a nd our traditional approach of scrutiniz i n g the record and asking whether it “appears” th a t a constitutional violation occurred. S tyers v. Schriro , 547 F .3d 1026, 1035 (9th Cir. 2008).

W e must suture this fissur e i n o u r c ircuit law, and soon. Trag ically for Robert Poy so n , w hen we do so, it will come too late to save him. B ut come it will.

OP INION

F I SHER, Circuit J udg e :

Robert Allen Poy son was convicted of murder a nd sentenced to death in 1998. After p ursuing direct review a nd seeking postconviction relief in state c ourt, he filed a h abeas petition in federal district court. The district court denied the petition, and Poy son appeals.

Poy son raises three cl aims on a p peal, each of which has been certified by the district court p ursuant to F ed. R. App. P. 22(b) and 28 U.S.C. § 2253(c): (1) the Ariz ona c ourts a pplied

an unconstitutional causal nex us test to mitig ating evidence; (2) the Ariz ona courts failed to c onsider mitig ating evidence of his h istory of s u b s tance abuse; and (3) his trial counsel provided ineffective a ssistance of counsel during the penalty phase of his trial by

failing to investig ate the possibility that he suffered from f

etal alcohol spectrum disorder. W e conclude the first two claims are without merit and the third is procedurally

defaulted. According ly

, we affirm.P O Y S O N V

. R Y A N 7

The Ariz ona Supreme Court did n ot deny Poy son h is rig ht
to individualiz ed sentencing by apply ing an unconstitutional causal n ex us screening test to potentially mitig ating evidence. Under our c ase law, we ca n n o t h old that a state court employ e d an unconstituti o n a l n ex us test “[ a] bsent a clear indication in the record that the state court applied the wrong standard.” Schad v. Ryan
, 671 F

. 3 d 708, 724 (9th Cir. 2 011) (per cur i a m ). The record here shows that the A riz o na Supreme Court considered the a bsence of a causal connection
to the murders in evaluating Poy son’s mitig ating e vidence, but it does n ot reveal whether the court applied a n e x us test

as an unconstitutional screening mechanism or as a permissible means of determining the weig ht or sig nificance of mitig ating e vidence. See Lopez v. Ryan
, 6 3 0 F. 3d 1198, 1203–04 (9th Cir. 2011). W e there f o r e must hold that the Ariz ona Supreme Court’s d e c i s ion was not “contrary to” Supreme Court precedent under 28 U .S.C. § 2254(d)(1). See Schad , 671 F .3d at 723–24.

W e also de n y h abeas relief on Poy son’s claim that the Ariz ona courts failed to consider h is history of substance abuse as a n onstatutory mitig ating factor. Poy son arg ues that the sta t e courts u nconstitutionally refused to consider mitig ating e vidence, a clai m arising u nder Lockett v. Ohio

, 438 U.S. 586 ( 1978), and Eddings v

. Oklahoma

, 455 U .S. 104 (1982). The state courts, however, did consider the evidence. They simply f

ound it wanting as a matter of fact, finding that the evidence failed to prove a h i s t o ry of substance abuse. There w as therefore no constitutional violation under Lockett and Eddings . Nor was there a constitutional v iolation under Parker v. Dugger
, 498 U

. S. 308, 321 (1991). The state

s upreme court did not misconstrue the state trial c o u r t ’s finding s, so it did not d eprive Poy son of meaning ful appellate review of his death sentence.P O Y S O N V

. R Y A N 8

F inally

, w e ag ree w ith the district court that Poy son’s ineffective assistance of c ounsel claim is procedurally defaulted because it is f

undamentally different from the claim presented in state c o urt. A lthoug h it is true that “new f actual alleg ations do not ordina r i l y render a claim unex hausted, a petitioner may not ‘fundamentally a lter the leg al claim already considered by the state courts.’” Beat y v

. Stewart
, 303 F

. 3 d 975, 989–90 (9th Cir. 2002) (quoting Vasquez v

. Hillery

, 474 U.S. 254, 260 (1986)). Poy son’s federal petition raises a theory of d eficie n t performance – f ailure to investig ate and present mit ig ating evidence of fetal a lcohol spectrum disorder – that the state courts had no “meaning f ul opportunity to consider.” Vasqu ez , 474 U.S. at 257. The claim is therefore procedurally defaulted.

I. BACK G R OUND

A. The Crim es

Poy son was born in Aug ust 1976. T he facts of his crimes, committed in 1996, were summariz e d as follows by the Ar i z ona Supreme Court in State v. P oyson , 7 P.3d 79, 83 (Ariz . 2000).

Poy son met L eta Kag en, her 1 5 y ear-old son, Robert Delahunt, a

nd Roland W ear in April 1996. Poy son was then 19 y ears old and homeless. K ag en allowed him to stay with her a nd the o thers a t their tr a i l er i n Golden Valley

, near King man, Ariz ona. I n Aug ust of the same y ear, Kag en was introduced to 48 y ear-old F r ank Anderson and his 14 y ear-old
g irlfriend, Kimberly L ane. They

, too, needed a place to live, and Kag en invited them to stay at the trailer.P O Y S O N V

. R Y A N 9

Anderson informed Poy son that he was eag er to travel to Chicag o, where he claimed to have org aniz ed crime

c o nnections. B ecause none of them had a way o f g etting t o Chicag o, Anderson, Poy son and L ane f ormulated a plan to k i l l Kag en, Delahunt and Wear in o rder to steal the latte r’ s truck.

On the evening of Aug ust 1 3, 1996, L ane lured Delahunt into a small travel trailer on the property , ostensibly for sex

. There, Anderson commenced an attack on the boy b y slitting hi s throat w ith a bread knife. Poy son heard Delahunt’s

scre a m s and ran to the travel trailer. W hile Anderson h eld Delahunt down, Poy son b a shed his head ag ainst the f loor. Poy son also beat Delahunt’s head with his fists, a nd pounded it with a r ock. This, however, di d n o t kill Delahunt, so Poy son took the bread knife a n d d r o v e it throug h his ear. Althoug h the blade penetrated Delahu n t ’s skull and ex ited throug h h is n ose, the wound was not fatal. Poy son thereafter continued to slam Delahunt’s head ag ai n s t the floor until D e l a hunt lost consciousness. According to the medical

ex a miner, Delahunt died of massive b lunt force head trauma. I n all, the attack lasted about 45 minutes.

After cleaning themselves up, Poy son and A n derson prepared to kill Kag en and W ear. They first located W ear’s .22 caliber r i f

le. Unable to find ammunition, Poy son borrowed two rounds from a y oung g irl who lived nex t door, telling her that D elahunt w as in the desert sur r o unded b y snakes a nd the bullets were needed to r escue him

. Poy son loaded the rifle and tested it for abo ut five minutes to make

sure i t w o u l d function properly

. He then stashed it near a shed. L ater that evening

, he cut the telephone line to the trailer so that neither of the remaining victims could call for help.P O Y S O N V

. R Y A N 10

After Kag en and W ear were a sleep, Poy son and Anderson
went into their bedroom. Poy son first shot Kag en in the head, killing her instantly

. After quickly reloading the rifle, he shot W e ar in the mouth, shattering W ear’s upper rig ht teeth

. A strug g le ensued, during whi c h Poy son repeatedly clubbed W e a r in the head with the rifle. The fracas eventually moved outside. At some point, A n derson threw a cinder block at W e a r, hi t t ing him in the back and knocking him to the
g round. W hile the victim w as ly ing there, Poy s o n twice kicked h im i n t he head. He then picked up the cinder block and threw it several times at W ear’s head. A f t e r W e ar

s t o p p ed moving

, Poy son took his wallet a nd the key s t o W e a r’s truck. To conceal the body

, Poy son c o v ered it with debris from the y ard. Poy son, Anderson and L ane then took the truck and traveled to I llinois, where they were apprehended several day

s later.

B. Trial and Conviction

A g rand ju r y i n d icted Poy son on three counts of first deg ree murder, one count of c o n spiracy to commit mur der and one count of a

r med robbery

. The j u r y c onvicted on all counts in March 1998, following a six -day trial.

C. Sentencing

1. Mitigation Investigation

F ollowing the g uilty verdicts, the state trial court approved fu n d s to hire a mitig ation specialist to a ssist in preparing f

or Poy son’s sentencing

. Cou nsel retained investig ator B lair Abbott.P O Y S O N V

. R Y A N 11

I n a J une 1998 me m orandum, Abbott informed counsel that Poy son’s mother, Ruth Garcia (G arcia), used drug s during the first trimester of her preg n ancy and recommended that counsel investig ate the possibil i t y that Poy son suffered brain damag e as a r esult. The memorandum a dvised counsel that “one of the sig ni fi c an t issues should be the hard core drug abuse of both [ of Poy son’s] parents, preconception a nd in the first trimester of Ruth’s preg nancy .” Abbott w rote that “Ruth Gar cia’s heavy drug a buse in the pre preg nancy a nd early o n in the preg nancy undoubtedly caused severe damag e to her unborn child.”

I n September 1998, A bbott mailed trial counsel “L ibrary & I nternet resear c h r e g arding drug & alcohol fetal c ell damag e; reflecting how thes e chemicals when taken in the first trimester [ a] ffect subsequent intellig ence, conduct, emotions, urg es etc [ sic] as the child g rows into adulthood.”

2. Presentence Investigation Report

The probation office p repared a presentence investig ation report in J uly 1 998. Poy son told the probation officer that he had a bad childhood because he was abused by a seri e s o f stepfathers, who subjected h i m to phy sical, mental a nd emotional abuse. Poy son also said he suffered from impulsive conduct disorder, which was diag n o sed when he

was 13. Poy son woul d n ot answer any questions on his substance abuse history or juvenile record.

3. Presentencing Hearing

I n October 1998, the trial court he ld a one-day
p r e s e ntencing hearing

. Poy son’s trial counsel called three witnesses to p resent mitig ating e vidence: his aunt, L auraP O Y S O N V

. R Y A N 12

Salas, his mother

, Ruth Garcia, a nd the mitig ation investig ator , B lair Abbott. Counsel also introduced 56

ex h ibits. Poy son d id not testi fy

. T h e witnesses testified about Poy son’s drug and alcohol abuse and the ment a l a n d phy sical abuse inflicted on Poy son b y his stepfather, Guillermo Ag uilar, and maternal g r andmother, Mary Milner. They also testified that Poy son’s stepfather, Sabas G ar cia (Sabas), committed suicide in 1 988, and that Sabas’ death h ad

a devastating effect o n Poy son. They fu r t h e r testified that Garcia use d d rug s and alcohol during the first three months of her preg

nancy with Poy son.

4. Poyson’s Sentencing Memorandum

I n early November 1998, Poy son fil e d a sentencing memorandum urg ing the court to find three statutory a nd 25

n o nstatutory mitig ating circumstances. 1 As relevant he r e, Poy son arg ued that his history of d ru g a n d a lcohol abuse, troubled childhood and personality disorders constituted both statutory and nonstatutory

mitig ating circumstances.

1 A t th e t im e o f Po y so n ’ s sen ten ci n g, A rizo n a law req u ired th e

sen ten cin g j u d g e to im

p o se a sen ten ce o f d eath if th e co u rt f o u n d o n e o r

m o re ag g rav atin g circu m stan ces an d “ n o m itig atin g circu m stan ces

su f f icien tly su

b stan tial to call f

o r len ien c y .” A

riz. R ev

. Stat. A

n n

. § 13

- 7 0 3 (E) (1 9 9 8 ). T h e law en u m erated 1 0 ag g rav atin g circu m stan ces, see id

. § 1 3

- 7 0 3 (F), an d f

iv e statu to ry m itig atin g circu m stan ces

– in c l u d i n g d im in ish ed cap acity

, d u ress, m in o r p articip atio n an d t h e d ef en d an t’ s ag e, see id

. § 1 3- 7 0 3 (G). T h e sen ten cin g co u rt also w as req u ired to co n s id er

an y n on sta tu to ry m itig atin g circu m stan ces o f f ered b y th e d ef

en d an t

– i.e.,

“ an y f acto rs pro f

f ered b y th e d ef en d an t o r th e state w

h ich are relev an t in d eterm in in g w

h eth er to im

p o s e a sen ten ce less th an

d eath , in clu d in g an y asp ect o f th e d ef

en d an t’ s ch aracter, p ro p en sities o r reco rd an d an y o f th e circu m s tan ces o f

th e o f f en se.” Id

.P O Y S O N V

. R Y A N 13

Substance A buse: Poy son a rg ued that his substance abuse

was a statutory mitig ating circums t a nce because it impaired his capacity to appreciate the wrong fulness of his conduct o r conform his c onduct to the requirements of law at the time o f the murders. See Ariz

. Rev. Stat. Ann. § 13-703(G)(1) ( 1 9 9 8). I n the alternative, he arg u ed that, even if his substance abuse was not c ausally related to the murders, it constituted a nonstatutory mitig ating circumstance. I n support of these arg uments, Poy son em p h a s i ze d h i s b iolog ical parents’ use of d rug s and alcohol a t the time of his conception, his mother’s use of d rug s and a lcohol during
preg n ancy , an inci d e n t in which Poy son was involuntarily intox icated at the ag e of three or f our, Poy s o n ’ s abuse o f alcohol b e gi n n ing at a g e 13 and Poy son’s f ive-month placeme n t a t W estCare, a residential treatment facility

, for substance abuse treatment in 1992, when he was 15. Poy son also pointed to evidence that he used PCP two day s before the murders, used alcohol the nig ht befo r e t he murders, used marijuana the day of the murders and h ad s u f f e r e d a PCP flashback during

Delahunt’s murder.

Troubled Childhood: Poy son arg ued that his t r o u b led childhood was a statutory mitig ating circumstance because it affected his b ehavior a t the time of the mu r d e rs

. I n the alternative, he arg ued that his troubled childhood constituted

a nonstatutory mitig ating circumstance. Poy son emphasiz ed h is mother’s use of drug s and a lcohol during the f i r s t trimester o f preg nancy

. He a rg ued that alcohol and drug use during preg nancy can cause brain damag e and birt h defects

a nd lead a c hild to eng ag e in delinquent and cr i m i n al behavior. He also a t t ached to the sentencing memorandum

sev e ral scientific articles o n fetal alcohol sy ndrome. The memorandum pointed out that Poy son never knew his biolog ical father, lacked a stab l e home life, was phy sicallyP O Y S O N V

. R Y A N 14

and mentally a

bused by several adults (including Ag uilar a nd Milner), was devastated by Sabas’ suicide and was sex ual l y abused and sodomiz ed at a young ag e. 2 Poy son emphasiz ed that his delinquent behavior and substance abuse b e g an shortly after the death of Sabas and the sex ual assault.

Mental Health Issues: The sentencing memorandum
arg ued that Poy son suffered f rom several perso nality d i s o r d e r s , c o n s t i t u t i n g a n o n s t a t u t o r y m i t i g a t i n g

c i rcumstance. The memorandum pointed to a 1 9 9 0
psy chiatric evaluation by Dr. B ruce Guernsey

. According to the sentencing memorandum, Guernsey di ag nosed Poy son with severe “conduct disorder,” reported that Poy son

ex h ibited sy

mptoms o f antisocial behavior, “manic d e p r e s s i o n ” o r “ i m p u l s i v e c o n d u c t d i s o r d e r ” a n d recommended that Poy son be prescrib e d medication to control his behavior. Poy son also pointed to a 1990 J u venile Predisposition I nvestig ation b y Nolan B arnum. B arnum too recommended that Poy son b e prescribed medication to

c ontrol h is behavior. A 1993 psy cholog ical evaluation performed by J ack Cordon a n d Ronald J acques from the State Youth Services C e nter in St. Anthony

, I d aho, diag n osed Poy son with “ mild mood disturbance.” Dr. C e l i a A. Drake, who Poy son’s counsel retained to perf o r m a forensic evaluation of Poy son, diag nosed “Adjustment Disorder with depressive mood, mild intensity ,” and “Ant i

- s ocial Persona lity D isorder.” Dr. Drake found Poy son’s overall intellectual functioning to be “in the low averag e rang e.”

2 P o y so n presen ted ev id en ce th at h e w a s s e x u ally assau lted b y a

n eig h b o r o n o n e o ccasio n

sh o rtly af ter Sab as’ d eath

.P O Y S O N V

. R Y A N 15

5. Sentencing Hearing and Imposition of Sentence

The trial court h eld a sentencing hearing and imposed sentence in late November 1998.

The cou r t f

o u nd that the state had proved, bey ond a reasonable doubt, three aggr a v ating c ircumstances for the murders of Delahunt and W ear: the murders were committed in ex pectation of pecuniary g ain, the murders were especially cruel and multiple homicides committed d uring the same offense. See Ariz

. Rev. St at

. Ann. § 13-703(F )(5), (6), (8) ( 1 998). The court found two ag g ravating circumstanc e s applicable to Kag en’s murder: pe cuniary g ain and multiple homicides. See id. § 13-703(F )(5), (8).

The c ourt found that Poy son failed to prove any statutory mitig ating factors. Poy son’s difficult childhood and men t al health issues were not statutory mitig ating factors under § 13- 703(G)(1) because they did not sig nificantly impair Poy son’s capacity to appreciate the w rong fulness of h i s conduct or to conform his conduct to the requirements o f l a w. 3 The court

ex p lained:

There has certainly been evidence that the defendant h a d g one throug h a turbulent life, perhap s had mental-health issues that would disting uish h im from the ty pical person on the
street.

3 See A riz. Rev

. S t a t. A n n

. § 1 3

- 7 0 3 (G)(1 ) (1 9 9 8 ) (“ Mitig atin g circu m s tan ces [in clu d e] [t]h e d ef en d a n t’ s cap acity t o ap p reciate th e

w ro n g f u ln ess o f h is co n d u ct o r to co n f o rm h i s co n d u ct to th e req u i rem en ts

o f l aw w as sig n if

i can tl y i m

p a i r ed

, bu t n o t so im

p aired as to co n stitu

t e a d ef en se to p ro secu tio n .”).P O Y S O N V

. R Y A N 16

L istening to his d escription of how these murders were committed, based upon a description of somewhat a methodical
carry ing out of a plan, the Court sees absolutely nothing on the record, in this c ase, to sug g est the applicabi l i t y of this mitig ating circumstance.

Turning to nonstatutory mitig ating factors, the court first

ex p lained the three-step analy sis it u sed to eva l uate e ach nonstatutory mitig ating circumstance proffered by Poy son: “[ 1] to a naly z e whether the defense has shown this fact by a preponderance of evid ence, and then if they have, [ 2] to determine whether I would assig n that any weig ht as a mitig ating factor, a

nd of c o urse, for any that

. . . pass both o f th o s e t w o tests, [ 3] I have to weig h them all along with the other f a c t o r s in the final [ sentencing ] determination in this case.”

Me ntal H

ealth I ssues: The court rejected Poy son’s mental h ealth issues as a nonstatutory mitig ating factor at the second step in the analy sis. The court f ound that Poy son h ad
proven that he suffered fro m p ersonality disorders, but g ave them n o w eig ht because they were not causally related to the murders:

[ T] he d efendant had some mental health a nd
psy cholog ical i s s ues. I think

. . . the defense has establis h ed t h a t there were certain

. . . personality disorders that the d efendant, in fact, may have been suffering

from.

The Court, however, does not find that they rise to the level of being a m i t i g atingP O Y S O N V

. R Y A N 17

factor because I am unable to draw a n y connection whatsoever with such personali t y disorder s and the commission of these offenses. 4

Troubled Childhood: The cou r t similarly rejected Poy son’s difficult childho o d as a nonstatutory mitig ating factor. At step o n e, the court found that the “defense has shown that d efendant suffered a d y sfunctional childhood, that he was subjected to phy sical a nd sex ual abuse, a n d t h at he

was subjected to certain levels of mental abuse.” At step two, however, the court g ave these c ircumstances no mitig ating weig h t b ecause they were not causally connected to the murders: “The Court finds absolutely nothing in this case to sug g est that his latter conduct w as a result of his childhood.” 5

4 T h e co u rt rej ected ev id en ce o f P o y so n ’ s lo w I Q fo r s i m ilar reaso n s. A t th e f irst step in th e a n a l y s i s , th e co u rt f o u n d th at “ th ere is certain

ev id en ce in th is case th at w o u ld su p p ort t h e p ro p o sitio n th at th e d ef en d an t ’ s m en tal cap acity m ay b e d im i n ish ed

, at least co m p ared t o th e

n o rm in th e p o pu latio n , an d th at h is I.Q. m ay be lo w , at least co m p ared to th e n o rm in th e po p u latio n .” T h e co u rt, h o w ev er, g av e th is circu m stan ce

n o m itig atin g w eig h t in lig h t o f p lan n in g an d so p h isticatio n th at w en t in to th e crim es

– “ certain p rep [ar]ato ry step s th at w ere tak en

– ad m itted ly

, n o t

o v erly

- so p h i sticated

, bu t attem p ts w ere m ad e to do c e r t a i n t h in g s, to d isab l e w arn in g sy stem s to en ab le th ese m u rd ers to b e co m

m itted an d to g et aw a y w i th t

h e lo o t th at w as th e pu rp o se o f t h e m u rd ers; sp ecif

ically

, th e v eh icle.”

5 T h e co u rt also f

ou n d th at “ th e def

en se h as estab l i sh e d

, b y a p rep o n d eran ce o f th e ev id en ce, th at th e d ef en d an t lo st a p aren t f

ig u re an d

w as su b j ected to sex u al ab u se at a r e l a t i v e l y y o u n g ag e.” T h e co u rt

r e j ected t h is f acto r at step tw o, h o w ev er, b ecau se it w as “ n o t co n v i n c e d th at th ere is an y co n n ectio n b etw een th at ab u se, th at lo s s, an d h is

su b seq u en t crim in al b eh av io r.”P O Y S O N V

. R Y A N 18

Substance Abuse: F inally

, th e c o urt rejected Poy son’s history of substance abuse at both s t e p s o ne and two in the analy sis: Poy son f

ailed to establish a sig ni f i cant history o f dr u g or alcohol a

buse a nd, even if he could do so, the court would have g iven the evi d e n c e no w eig ht because he failed
to establish a causal connection between the substance abuse and the crimes. The court said:

The arg ument is made that the defendant was subjected to alcohol abuse a n d drug abuse. Other than v ery vag ue alleg a tions that he has used alcohol in the past o r has u sed d r ug s in the past, other than a fairly vag ue assertion
t h a t he was subject to some sort of effect o f dru gs and/or alcohol at the time, that these offenses were c om m i t ted, I r eally find very little to support the alleg a tion tha t the defendant has a sig nificant alcohol and/or drug abuse, and a g ain, g oin g b ack to the method i c al steps that were taken to murder three people to g et a vehicle to ge t o u t o f Golden Valley

, i t ’ s very difficult for me to conclude that the defendant’s ability to eng ag e in g o a l-oriented behavior was, in any way , impaired at the time of the commission o f these offenses.

The court found only one nonstat u tory mitig ation factor

– Poy son’s cooperation with law enfor c e m e n t. The court concluded that this one mitig ating f actor was insufficiently substantial to call for len i e n cy and imposed a sentence o f death.P O Y S O N V

. R Y A N 19

6. Arizona Supreme Court Decision

The A riz ona Supreme Court af f i rmed Poy son’s conviction and sentenc e o n direct appeal. See State v

. Poyson
, 7 P.3d 79 ( Ariz

. 2 000). As r equired by Ariz ona law, the court “independently review[ ed] the trial court’s finding s of ag g ravation and mitig ation a n d the propriety of the death sentence.” Ariz

. Rev. Stat. Ann. § 13-703.01(A) (2000).

The court agr e ed with the trial court that Poy son’s d rug

use was n o t a statutory mitig ating circumstance under § 13- 703(G)(1). See Poyson
, 7 P.3d at 88–89. I n the court’s v iew, there was “scant evidence that he was actually intox icated on the day of t h e murders.” Id. at 8 8. “Althoug h Poy son purportedly used both marijuana and PCP ‘on an as available ba s i s ’ i n day s preceding these crimes, the only substance he apparently

used on the date in question w as marijuana,” and Poy son “ reported smoking the marijuana at least six hours before killing D elahunt and e leven hours before the murders of Kag en and W ear.” Id. T h e evidence that Poy son

ex p erienced a PCP flashback during the murder of Delahunt

was not c redible, and even if the flashback occurred, it lasted only a “few moments.” I

d. at 88–89. Poy son was “ not under the influence of PCP at any other time.” Id. at 89. Poy son’s

c l a ims of substantial impairment were also belied by his deliberate a ctions, including concocting a ru s e to obtain bullets from a neig hbor, testing the rifle to make sure it would work properly when needed, cutting the telephone line a nd concealing

the crimes. See id.

Substance Abuse: The c o u r t a lso ag reed with the trial
court that Poy son’s substance a b use, mental health a nd abusive childhood were n ot nonstatutory mitig at i ng circumstances. As to substance abuse, the court ag reed withP O Y S O N V

. R Y A N 20

the trial court that Poy son had failed a t step one because the evidence did not show a history of drug or alcohol abuse:

The trial judg e refuse d t o accord any w eig ht
to the defendant’s substanc e abuse as a

n o n statutory mitig ating circumstance. I t charact e riz ed the defendant’s claims that he had used drug s or a lcohol in the p a s t o r was under the influence of drug s on the day of the

m u r d e r s a s l i t t l e m o r e t h a n “ v a g u e alleg ations.” As discussed above, we ag ree.

Id. at 90.

Mental Health Issue s : W ith respect to mental health issues, the court ag reed w ith the trial court that P o y s o n’s personality disorders, althoug h p r o v e n at step o ne, were entitled to n o weig h t at step two bec a u se they were not causally connected to the murders:

The trial court found that Poy son suffers f rom “certain personality disorders” but did not

a s s i g n any weig ht to this factor. Dr. Celi a Drake diag nosed the defendant with antisocial
pe rs o nality disorder, which she attributed to the “chaotic environment in which he was raised.” She f

ound that there was, am o ng other thing s, no “appropriate model for moral reasoning within the family setting ” to which the defendant c ould look for g uidance. However, we find no indication in the record that “the disorder c ontrolled [ h is] conduct o r impaired his mental capacity to such a deg r ee that leniency is required.” State v. Brewer
,P O Y S O N V

. R Y A N 21

170 Ariz

. 486, 5 05, 826 P.2d 783, 802 (1992);

see a lso [ State v. Medina

, 1 93 Ariz

. 504, 517, 975 P.2d 94, 107 (1999)] (h o lding that the defendant’s personalit y d isorder “ha[ d] little

or no mitig a ting v alue” where the defendant’s desire to emulate his f

r iends, not his mental disorder, w as the cause o f his criminal behavior). We therefore accord this factor no mitig ating weig ht.

Id. at 90–91.

Troubled Childhood: The court also ag reed with the trial court’s assessmen t o f Poy son’s troubled c hildhood. The court found that Poy son established an abusive childhood at step one, but g ave this consideration no weig ht at s t e p t w o because of the absence of a causal nex us:

Defendant presented s o m e evidence that as a y oung ster he was phy sically and mentally abused by several stepfathers and his maternal
g randmother. He also self-repor ted o ne instance of sex ual assault by a neig h bor. Ag ain, however, defendant did n ot show that his traumatic childhood somehow rende r e d him u nable to control his c o n d uct. Thus, the evidence is without mitig ating value.

Id. at 91.

The c ourt found three ag g ra v a t i ng factors (pecuniary g ain, murder committed in an e specially cruel manner and multiple homicides), one statutory m itig ating factor (Poy son’s ag e)

a n d three nonstatutory mitig ating factors (cooperation w i t hP O Y S O N V

. R Y A N 22

law enforcement, potential f o r r ehabilita t ion a

nd family support). See id. at 90–91. 6 The court conclude d t h a t the mitig ating evidence was not sufficiently substantial to call for leniency and affirmed the sentence of death. See id. at 91–92; Ariz . Rev. Stat. Ann. § 13-703.1(B ) (2000).

D. State P ostconviction Review

The Ariz ona Superior Court denied Poy son’s p etition for postconviction relief in 2003. T h e court provided a reasoned de ci s ion on Poy son’s claim of penalty phase ineffective assistance of counsel (his third claim in this appeal) b ut not

on Poy son’s claims that the Ariz ona courts failed to consider relevant mit i ga t i ng evidence (his first and second claims on appeal). I n 2004, t h e Ariz o na Supreme Court summarily denied Poy son’s petition for review.

E. F ederal District Court P roceedings

Poy son filed a federal habeas p etition i n 2 0 0 4

. I n 2010, the district court denied the petition. The court r ejected on the merits Poy son’s claims that t h e A ri zona courts failed to conside r mitig ating evidence. The court concluded that P o y son’s penalty p hase ineffective assistance of couns el

c l a i m w a s procedurally defaul t e d b e c a u s e i t w a s “fundamental l y different than [ the claim] presented in state court.” Poy son timely appealed.

6 T h e A rizo n a S u

p rem e Co u rt th u s f

ou n d th ree m o re m itig atin g f acto rs th an th e trial co u rt f

o u n d

. T h e ap p ellate co u rt n o n eth eless ag reed w ith th e trial co u rt th at a d eath sen ten ce w as w arran ted

.P O Y S O N V

. R Y A N 23

II. JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. §§ 1 291 a nd 2 2 5 3(a). W e review de novo the d istrict court’s denia l o f Poy s o n ’ s p e tition for h a b eas corpus, and w e review the district c ourt’s finding s of fact for clear error. See Brown v

. Ornoski

, 5 03 F .3d 1006, 10 1 0 (9th Cir. 2007). D ismissals based on procedural d efa u l t are r eviewed de n o vo. See Robinson v. Schriro

, 595 F

. 3 d 1 086, 1099 (9th Cir. 2010). W e address Poy son’s three claims in turn.

III. DISCUSSION

A. Causal Nexus Test

Poy son arg ues t h a t the Ariz ona courts applied an

u n constitutional causal nex us test to mitig ating evidence o f his mental health issues, traumatic c hildhood a n d substance abuse history

, in violation of his Eig h t h a nd F ourteenth Amendment r i g h ts to an individualiz e d sentencing

. He contends that the state courts improperly refused to consider this evidence in mitig ation beca u s e h e failed to establish a causal connection between the evidence a nd the murders. He
arg ues that the state courts’ actions violate his constitutional

r i gh t s a s recog niz ed in Tennard v. Dretke

, 5 42 U.S. 274, 283–87 (2004), Smith v. Texas
, 5 4 3 U .S. 37, 45 (2004) (per curiam), and several earlier decisions. These decisions hold that r equiring a defendant to prove a n e x u s b etween mitig ating evidence and the crime is “ a t e s t we never countenanced a

nd now have unequivocally rejected.” Smith

, 543 U.S. at 45.

B e cause Poy son filed his federal habe a s p etition a fter April 24, 1996, he must not only prove a violation of th e seP O Y S O N V

. R Y A N 24

r i g hts but also satisfy the Antiterrorism and E f fective De a t h Penalty Act of 1996 (AEDPA). See Fe n e n b o ck v

. Dir. of Corr. for Cal.

, 681 F .3d 968, 973 (9th Cir. 2012).

U n d e r A EDPA, we may not g rant habeas relief w i t h respect to a

ny claim ad

j u d i c a t e d o n the merits in state court unless the state court’s d ecision was “contrary to, or involved

an unreasonable a pplication of, clearly established F ederal law, as determine d b y the Supreme Court o f the United States,” or “based o n an unreasonable determinat i o n o f the facts i n l i g ht of the evidence presented in the State court p r o c e eding

. ” 28 U .S.C. § 2254(d). W e review the la s t reasoned state court decision addressing the claim, which for Poy son’s causal n ex us c laim is the Ariz ona Supreme Court’s decision affirming Poy son’s death sentence on direct appeal. See Crittenden v. Ayers
, 624 F .3d 943, 950 (9th Cir

. 2 0 1 0). Poy son relies on AEDPA’s “contrary to” prong , arg uing that the Ariz ona Supreme Court’s decision i n S tate v. Poyson
, 7 P.3d 79 (Ariz

. 2000), was contrary to L o c kett v

. Ohio

, 438 U.S. 586 (1978), Eddings v. Oklahoma

, 455 U.S. 104 (1982), and P enry v. Lynaugh

, 492 U.S. 302 (1989), abrogated on other grounds by Atkins v

. V i rginia
, 536 U.S. 304 (2002).

1. Exhaustion

As a threshold matter, we agr ee with Poy son that he has fully ex hausted this claim. The state arg ues that in state court Poy son raised a c a

usal nex us claim wi t h respect to only mental health is s u e s a

nd his troubled childhood, not his history of substance abuse. W e disag r ee. Having reviewed the record, we c onclude that Poy son ex hausted the claim with respect to all three categ ories of mi t i gating evidence. See Powell v. Lambert

, 357 F .3d 8 7 1
, 8 7 4 (9th Cir. 2004) (“AP O Y S O N V

. R Y A N 25

petitioner has ex hausted h is federal claims when he has f ully and fairly presented them to the state courts.”).

2. W hether the A rizona Supreme Court’s Decision W as Contrary to Clearly Established Federal Law

Loc k ett , Eddings and Penry held that “a State could not, consistent with the Eig hth and F ourteenth Amendments, prevent the s e ntencer f

rom considering and g iving effect to evidence relevant to the defendant’s backg round or character

or to the c ircumstances o f t h e o f fense that mitig ate ag ainst imposing the death penalty .” Penry
, 492 U.S. at 318. “[ I ] t is
not enoug h simply to allow the defendant to present mitig ating evidence to the senten c e r. ” Id. at 319. “The
sentencer must also be able to consider and g ive effect to that evidence in imposing sentence.” Id. “ [ T] he sentence imposed
at the penalty stag e should reflect a reasoned moral response to the defendant’s backg round, character

, a n d crime.” Id. (quoting California v. Brown
, 479 U.S. 538, 545 ( 1 987) (O’Connor, J
., c o ncurring ) ) (internal quotation marks omitted).

U n der these d ecisions, a state court may n ot tr e at mitig ating evidence of a d efendant’s backg round or character

as “irrelevant or nonmitig a ting a s a m atter of law” merely because it lacks a causal connection to the crime. Towery v

. Ryan
, 673 F .3d 933, 946 (9th Ci r

. 2 0 1 2 ) (per curiam). The
sentencer may , however, consider “causal nex us

. . . as a factor in determining the weig ht or sig nificance of mitig ating evidence.” Lopez v. Ryan
, 630 F .3d 1198, 1204 (9th Cir. 2011). “The

. . . u s e of the nex us test in this manner is not unconstitutional because state courts are f r e e to assess the weig ht to be g iven to particular mitig ating evidence.” SchadP O Y S O N V

. R Y A N 26

v. Ryan , 671 F .3d 708, 723 ( 9th Cir. 2011) (per curiam). As the Court ex p lained in Eddings :

J ust as the State may not b y statute preclude the sentencer from considering any mitig ating factor, neither may the sent e ncer refuse to consider, a s a m atter o

f l a w , any relevant mitig ating evidence.

. . . The sentencer, a nd the Court of Criminal Appeals o n review, may determine the weig ht to be g iven relevant mitig ating evidence. B ut they may not g ive it

no weig ht by ex cluding such e v idenc e f rom their consideration.

Eddings , 455 U.S. at 113–15.

Consistent with these principles, we have g ranted h abeas relief when state courts h ave applied a causal nex us test as a screening mechanism to deem evidence irrelevant o r nonmitig ating as a matter of law. I n Stye r s v. Schriro

, 547 F .3d 1026 (9th Cir. 2008) ( per curiam), we g ranted relief where the state court held that a d e fe ndant’s post-traumatic
stress disorder could not constitute mitig ation unless the defendant could connec t the condition to the crime. See id.
at 1035. I n W

illiams v. Ryan
, 623 F .3d 1258 (9th Cir. 2010),

we g r a n t e d r elief where the state c o u rt held that, “[ w] ithout

a showi n g o f s ome impairment at the time o f the offense, drug use cannot be a mitig atin g c ircumstance of any k ind.” Id. at 1270–71 (alteration in orig inal) (quoting State v

. W illiams

, 904 P.2d 437, 4 53 ( Ariz

. 1995)) (internal quotation marks omitted).

I n contrast, we have r e fused to find a constitutional violation when the state court employ ed a causal nex us test a sP O Y S O N V

. R Y A N 27

a permissible w eig hing mechanism. See Towery
, 673 F .3d at 945–46. W e have also denied r elief when the record contains

no indication that the state court e mploy ed a c ausal nex us test at all. See S

c had

, 671 F .3d at 724 (deny ing relief where “there is n o indication that t h e s t a t e courts applied a nex us test, e ither as a method of assessing the weig ht of the mit ig ating evidence, or as an unconstitutional screening mechanis m t o p revent consideration of any evidence”); Lopez
, 630 F

. 3d at 1203–04 (deny ing relief where t h e state courts made no mention of a causal n e x us test, because “there is no reason to infer u nconstitutional reasoning from judicial silence”).

Here, the r e c ord shows that the Ariz ona Supreme Court applied a causal nex u s test to Poy son’s evi dence o f mental health issues and a difficult c hildhood, see Poyson
, 7 P.3d at 90–91, but does not reveal whether the court con s i d er e d the absence o f a c ausal n ex us as a permissible w e ig hing mechanism, as in Towery
, or as an unconstitutional screening mechanism, a s in Styers and W illiams

. This ambig uity precludes us f

rom g ranting habeas re l i e f. W e held in Schad that, “[ a] bsent a clear indication in the record that the state court applied the wro n g standard, we cannot assume the
courts violated Eddings ’s constitutional mandates.” 6 71 F .3d
at 724. That principle g overns h e r e: we cannot assume the
state court a

pplied the wrong standard. The Ariz ona Supreme Court’s decision therefore w as not contrary to c l e arly established federal law under § 2254(d)(1).

W e reach the same conclusion with respect to the A riz o na Supreme Court’s evaluation of Poy son’s evidence o f a history of substance abuse. The state court rejected this evidence at step one in its analy sis, finding as a matter of fact that Poy son had failed to establish a sig nificant history of substance abuseP O Y S O N V

. R Y A N 28

by a preponderance of the evidence. The r e c o r d d oes not indicate that the court considered this evidence at step two, o r that, if it d id so, it employ ed an impermiss i b l e causal nex us test in d oing so. S

ee P o y s on , 7 P.3d at 90. The court’s
treatment of Poy son’s subst a n c e abuse evidence thus was likewise not contrary to Lockett

, Eddings and Penry

.

W e recog niz e the possibility that the Ariz ona Supreme Court a pplied an unconstitut ional causal nex us test. The record, however, c o ntains no cle a r indication that the court did so. W e may

not presume a c onstitutional violation from

an ambig uous record. We theref o r e h old that the district
court properly denied habeas relief on Poy son’s causal nex us claim. S ee Schad , 671 F .3d at 724.

The dissent contends that Schad ’s presumption that state courts follow constitutional requirements s h o uld not a pply here for six reasons. F irst, the dissent arg ues that we should find e rror in Poy son’s case based on th e Ariz ona Supreme Court’s u se of an unconstitutional causal nex u s t e s t in other

cases at the time of Poy son’s sentenc i n g. D i ssent 4 3. This
arg ument mig ht be persuasive if t h e Ariz ona courts consistently a

pplied an unconstitut i o nal causal nex us test during the relevant period. That is not the case, however. A s we recog niz ed in Lopez
,

Our rev iew of the c ase law confirms Ariz ona’s u nsettled p ast w ith re s p ect to this issue. S o m e cases decided prior to Tennard applied a ca usal nex us requirement in an impermissible manner. Other cases, however, properly looked to c ausal nex us only as a f a ct o r i n d e t e r

mi n i n g t h e w e i gh t o r sig nificance of mitig ating evidence.P O Y S O N V

. R Y A N 29

630 F .3d at 1203–04 (footnote omitted); see also Towery
, 673 F .3d at 946 (also recog niz ing that the Ariz ona Supre me Court’s decisions have b een inc onsistent on this q uestion). U n der these circumstances, the most we can say is t h at Ariz ona’s troublesome history weakens the presumption that the Ariz o n a S u p reme Court followed the law in Poy son’s case; it does not flip the presumption altog ether. 7

Second, the dissent arg ues that the presumption that state courts follow constitutional mandates a p plies only to a silent record and not to the interpretation of a state court’s lang uag e. D issent 47. This arg ument overlooks the Supreme Court’s decision in W

o odford v. Visciotti
, 537 U.S. 1 9 (2002). There, the state c ourt applied a n arg uably erroneous test for determining prejud i c e under Strickland v. W a shington

, 466 U .S. 468 (1984). Some lan gu a g e in the state court’s decision cited the test correctly

, wh e reas other lang uag e misstated the test. See V

isciotti
, 537 U.S. at 22–24. We h eld that the state court had applied an errone ous test, but the S u preme Court reversed, holding that our “readiness to attribute error is inconsistent with the presumption that state courts k n ow and follow the law.” Id

. a t 2 4

. A fter V isciotti
, therefore, we must c o nsider the presumption that state courts f o llow the law not only when we draw inferences from t h e court’s silence but also w h en , as here, we construe a state court’s ambig u ous lang uag e.

7 U n d er circu it p reced en t, m o reo v er, o u r f o cu s m u st b e o n th e reco rd in th is case. S

ee L op ez , 63 0 F.3 d at 1 2 04 (“ In lig h t o f th is b ack d ro p , w h ich h ig h lig h ts a ran g e o f treatm e n t o f t h e n ex u s i ssu e, th ere is n o reaso n to in f er u n co n stitu

tio n al reaso n in g f

ro m j u d ici a l s i l en ce. Rath er, w e m u st lo o k to w h at t h e reco rd actu ally say s.”); To wery , 6 7 3 F.3 d at 9 4 6

. W e rej ect th e su g g estio n th at b ecau se o th er A rizo n a cases m ay h av e in v o lv ed

cau sal n ex u s erro r w e sh ou ld p resu m e th at th is case d id as w ell.P O Y S O N V

. R Y A N 30

Third, quoting J u s t i ce O’Connor’s concurrence in Eddings

, the dissent arg u es that “ the qualitatively different
nature o f a death sentence requires reviewing c o u r t s ‘ to

remove any leg itimate basis for finding ambig uity concerning the f actors actually considered by the trial court.’” Dissent 47 (quoting Eddings

, 4 55 U.S. at 119 (O’Connor, J
., concurring )). A majority o f the Court, however, ha s never adopted J u stice O’Connor’s sug g estion that ambig uity alone requires habeas relief. Unlike Eddin gs , moreover, this case is g overned by A EDPA, and AEDPA does not allow us to presume from an ambig uous record th a t t h e state court applied an unconstitut i onal standard. To the contrary , such

a “readiness to attribute error” would be flatly “incompatible

w i t h § 2 254(d)’s hig hly deferential standard for evaluati n g state-court ruling s, which demands that state-court decisions be g iven the benefit of the doubt.” V isciotti
, 537 U.S. at 24 (citation and internal quotation marks omitted); cf. Lopez v

. Schriro

, 491 F .3d 1029, 1037 (9th Cir. 2 0 0 7 ) (holding that alleg ed ambig uity in th e s t a te court’s lang uag e was insufficient “to overcome the p r esumption that the state court knew and followed the law”).

F ourth, a c co rding to the dissent, our holding imposes a heig htened standard of p roof on the petitioner and means that “a habeas petitioner can secure relief only by conclusively establishing t h e a b sence of a ny ambig uity in the state court record.” D issent 49. Not so. The problem in this case is not the ex istence of some ambig uity in the record; it is t h a t t h e record is insolubly ambig uous , c f. Doyle v. Ohio

, 426 U.S. 610, 617 (1976), meaning that the record is inconclusive as to whether the Ariz ona Supreme Court applied a nex us test a s a permissible w e i ghing mechanism or as an impermissible screening mechanism. As we have noted elsewhere, a party who bears the b urden of proving a fact by a preponderance o fP O Y S O N V

. R Y A N 31

the evidence cannot carry tha t burden by rely ing on an inconclusive record. S

ee Y oung v. Holder

, 697 F .3d 976, 989 (9th Cir. 2012) (en ba n c ) (ex plaining that “the burden o f persuasion .

. . determines ‘which party loses if the evidence is closely balanced’” (qu o t i n g Schaffer ex rel. Schaffer v

. W east , 546 U .S. 49, 56 (2005))). Our opinion merely adheres
to that principle. B ecause Poy son bears the burden of proof, by a preponderance of the evidence, he cannot prevail on the record before us. See Schad

, 671 F .3d at 724 (“Absent a clear indication in the record that the state court applied the wrong standard, we

. . . must hold there was no constitutional error in the [ state] courts’ consideration of the mitig ati ng evidence.”). W e have n o t imposed a heig htened burden o f proof.

F ifth, the d issent a

rg ues that this case i s “ substantially indisting uishable” from S tyers , where we g ranted h abeas relief. Dissent 50. I n S tyers , the Ari z o na Supreme Court rejected evidence that the defendant su f f ered from posttraumatic stress disorder as a result of combat service in Vietnam, stating : “This could also, i n a n appropriate c ase, constitute mit i ga t i o n

. . . . However, two d octors w ho

ex a mined defendant c o u ld not connect defendant’s condition
to h is behavior at the time of the conspiracy and the murder.” Styers
, 547 F .3d at 1035 (quoting State v. Styers
, 865 P.2d 765, 777 (Ariz

. 1993)). The state court’s lang uag e in Styers plainly implied that the evidence c ould be mitig ating only if it was causally connected to the crime – i.e., that the evidence could not be mitig ating absent a causal connection to the crime. The record in Styers
, t h erefore, contained a clear indica t i o n that the state court applied an unconstitutional causal nex us test – it w a s n o t insolubly ambig u ous. See Eddings

, 455 U.S. at 114 ( h olding that “the sentencer [ may not] refuse to consider, as a matter of law

, any rele v a n tP O Y S O N V

. R Y A N 32

m i tig ating evidence”); Towery
, 673 F .3d at 946 (ex plainin g t h a t the Eig hth Amendment p rohibits “treating the eviden c e

as irrelevant or nonmi t i ga t ing as a matter of law”). The record here contains no comparable indication. The court did
not say that Poy son’s evidence c o uld not be mitig ating ; it said only that the evidence was not mitig ating

, a conclus ion that could as easily reflect permissible weig hing as impermissible screening

.

F inally

, the dissent arg ues that the state court violated the Eig hth Amendment by discarding Poy son’s evidence “ before the cr i t ical stag e of its analy sis – the final balancing o f mitig ating and ag g r avating circumstances that determined his sentence.” D i s s e nt 5 4. The state c ourt, however, h ad discretion to accor d Poy son’s evidence no weig ht. See Edding s, 455 U.S. at 114–15; S c h a d

, 671 F .3d at 723. Assuming the state court permissibly acco r d e d the evidence

no weig ht, we do not see how the court could have committed constitutional error by ex cluding the evid ence f rom the ultimate sentencing determination. Had the sta t e c ourt afforded the evidence some weig ht, but declined to consider it in the final sentencing analy sis, t h i s w ould be a different

case.

At bottom, the ambig uous re c o r d i n this case is no different f rom those in Schad and Lopez
, two cases in which

we declined to g rant habeas relief. I n both of those cases, we denied relief n otwithstanding Ariz ona’s troublesome history of apply ing an unconstitutional causal nex us test – a nd notwithstanding the ex istence of an ambig uous record. Here too, in the absence of a clear indication in the record that the
sta te court applied an unconstitutional standard, w e see no alternative but to affirm.P O Y S O N V

. R Y A N 33

B. F ailure to Consider Substance Abuse

At sentencing

, Poy son presented evidence of a history o f drug and alcohol abuse, b ut the state trial court and the state supreme court declined to treat the evidence as a nonstatutory mitig ating factor. The t r i a l court found that Poy son h ad presented only “very vag u e a lleg ation s t hat h e has used alcohol

. . . or

. . . drug s in the past,” and found “very little to support the a l leg ation that the defendant has a sig nificant alcohol and/or drug abuse” history

. The supreme court ag reed that Poy son’s claims to have “ u sed drug s or alcohol in the p a st” were “little more than ‘vag ue alleg ations.’” Poyson
, 7 P.3d at 90.

Poy son contends th e s tate c ourts’ conclusions that he provided only “vag ue alleg ations” o f s u bstance abuse were unreasonable determinations of th e facts under 2 8 U .S.C. § 2 254(d)(2) and violated h is constitutional rig hts under Lockett

, 438 U.S. at 605, E ddings

, 455 U.S

. a t 112, a nd Parker v. Dugger , 498 U.S. 308, 321 (1991). W e disag ree.

Poy son’s claim

– t h a t “[ b] ecause his death sentence is based upon [ an] unreasonable determination of facts, [ h e] is entitled to habeas relief” – misun d e r s tands the law. Even assuming that the state courts’ determination that Poy son provided only “vag ue alleg ations” of substance abuse w as an unreasonable deter m i nation of the facts under § 2 2 54(d)(2),

an issue we n ee d n o t reach, Poy son’s claim fails because he
cannot demonstrate that his constitutional rig hts were violated. S

e e W ilson v. Corcoran
, 131 S. Ct. 13, 17 (2010) (per curiam) (holding that while § 2254(d)(2) relieves a federal cour t o f A EDPA deference when the state court makes an u nreasonable d et e r m i n ation of facts, it “ does not repeal the command of § 2254(a) that habeas relief ma y b eP O Y S O N V

. R Y A N 34

a f f o r d e d to a state p risoner ‘ o nly on the g round’ that hi s custody violates federal law”); see also Frantz v

. Hazey
, 533 F .3d 724, 737 (9th Cir. 2008) (en banc) (holding that AEDPA does not “ r equire any particular methodolog y for ordering the § 2254(d) and § 2254(a) determination[ s] ”). An unreasonable determina t i on of the facts would not, standing alone, amount to a constitutional violation under L o c kett

, Eddings or Parker

.

Lockett invalidated an Ohio death pena l t y s tatute that precluded the sentencer f rom considering a spects of the defendant’s character o r record as a mitig ating factor. See 438 U.S. at 6 0 4

. Eddings held that a sentencer may not refuse to consider, as a matter of law, any relevant mitig ating evidence. See 455 U .S. at 113–15. Here, t h e s t ate courts considered Poy son’s evidence of substance abuse, but f ound it wanting as a matter of fact and that Poy son failed to prove

a history of substance a buse. Thus, t h ere was no constitutional violation under Lockett and Eddings

.

Nor h as Poy son show n a c onstitutional violation under Parker

. There, the state supreme court reweig h ed
ag g r avating and mitig ating circumstances before affirming a death sentence. See Parker

, 498 U.S. at 3 21–22. The court’s reweig h ing

, however, w as pr emised on its erroneous assumption that the state trial court had found that there were

no miti g a t i n g circumstances. See id. The Supreme Court held that the state supreme c our t ’ s action deprived the defendant of “meaning ful appellate review,” and thus that the sentencing viola t ed the defendant’s rig ht ag ainst “the arbitrary or irrational imposition of the death penalty .” Id. at 321. I n Poy son’s view, Parker stands f o r the broad
p r o p o s ition that, “[ w] hen a state court’s imposition of the death penalty is based not o n t h e characteristics o f theP O Y S O N V

. R Y A N 35

accused and the offense b ut instead on a misperception o f the record

, the defendant is n ot b eing afforded the consideration that the Constitution requires.” I n P a rker

, however, the state supreme court had misconstrued the state trial cou r t ’s finding s, something that did not occur here. P a rker does not hold that a state court’s erroneous factual finding in assessing mitig ation e vidence n ecessarily amounts to a constitutional violation. Rather, it sug g e sts the opposite:

This is n o t simply an error in assessing the mitig ating evidence. Had the F lorida S u p r e m e C o u r t c o n d u c t e d i t s o w n

ex a mination o f the trial and sentencing hearing records and concluded that there were

no miti g ating circumstances, a different question would be p resented. Similarly

, if the
t r i a l j u d ge h a d f

o u n d n o m i t ig at i n g circumstances and the F lorida Supreme Court had relied on that find i ng , our review would be very different.

Id. at 322.

I n sum, we hold that Poy son is not entitled to h a b e a s relief because he has n ot shown a constitutional violation under Lockett

, Eddings or Parker

. B ecause Poy son h as raised
arg uments under only Lockett

, Eddings and Parker

, we need
not decide whether, or u nder what circumstances, a state court’s e rroneous factfinding in as s e s s i n g m i tig ating evidence can itself rise to the level of a constitutional violation.P O Y S O N V

. R Y A N 36

C. P enalty P hase Inef

f ective Assistance of

Counsel

I n his federal habeas petition, Poy son arg ued that he received ineffective assistance of counsel during the penalty phase o f his trial because his trial counsel failed to investig ate the p ossibility that he suffered from fetal alcohol s p e c t rum disorder (F ASD). The district court ruled that Poy son failed
to presen t t his claim to the state c ourts, and hence that the claim was procedurally defau l t ed

. Poy son c halleng e s that ruling on appeal

. W e review de n ovo. See Robinson

, 595 F .3d at 1099.

A state prisoner must normally ex haust available state j udicial remedies before a federal court will entertain h i s p e t ition for habeas corpus. See Picard v. Connor
, 404 U

. S

. 270, 275 (1971); W

eaver v. Thompson

, 1 9 7 F .3d 359, 363–64 (9th Cir. 1 9 99); 2 8 U.S.C. § 2254(b)(1)(A). This rule “reflects a policy of federal-state comity

, an accommodation of our f ederal sy stem desig ned to g ive the State an initial opportunity to pass upon and correct alleg ed violations of its prisoners’ federal r ig hts.” Picard

, 404 U .S. at 275 (citations and internal quotation marks omitted). “A petitioner can satisfy the ex haustion r equire m e n t by providing the hig hest
state court with a fair opportunit y to consider each issue before prese n t i n g i t to the federal c o urt.” W eaver , 197 F .3d at 364.

“[ A] petitioner may provide further facts to support a claim in federal district court, so l o n g a s those facts do not ‘fundamentally alter the leg al claim already considered by the
state courts.’” Lopez v. Schriro

, 491 F .3d 1029, 1040 (9th C ir. 2 007) (quoting Vasquez v

. Hillery

, 474 U.S. 25 4
, 2 6 0P O Y S O N V

. R Y A N 37

(1986)). 8 “[ T] his rule allows a petitioner who presented a particular [ ineffecti v e assistance of counsel] claim, for

e x ample that counsel was ineffective in present i n g humaniz ing testimony at s entencing

, to develop additional facts supporting that particular claim.” Moormann v. Schriro

, 426 F .3d 1 044, 1056 ( 9th Cir. 2005) (citing W eaver , 197 F .3d
at 364). “This does not mean, however, that a petitioner w ho presented any in e ffective assistance of counsel c laim below

can later add unrelated a lleg e d instances of counsel’s ineffectiveness to h i s claim.” Id. (citing Carriger v. Lewis
, 971 F .2d 329, 333 (9th Cir. 1992) (en banc)).

1. State Proceedings

I n h is state habeas petition, Poy son raised two ineffective assistance of counsel claims relevant here. I n the first c laim, Poy son alleg ed that trial counsel “was ineffective because he failed to r equest the appointment of ex perts in the f i e l d o f mental health early in the case.” He alleg ed t h a t the investig ation for both p hases of the trial s h o u l d have beg un “immediately ” upon counsel’s a ppointment, including “the immediate a

ppointment of ex perts for both parts of the trial.” Counsel’s failure “to immediately secure the appointment o f mental h ealth ex perts

. . . prejudiced” h im in two way s. F irst, it precluded him from presenting a defense o f “diminished capacity ” with respect to the Delahunt murder during the g u ilt phase of the trial. Second

, “the f ailure of counsel to immediately p ur s ue mitig ation caused the loss of mitig ating information” that could have b een presented at sentencing

.

8 A s th e Su

p rem e Co u rt h as recen tly clarif ied , th ese f

actu al alleg atio n s

m u st b e b ased on t h e “r e c o rd th at w as b ef o re th e state co u rt th at ad j u d icated t

h e c l a i m o n th e m erits.” Cu llen v. Pin h o lster

, 1 3 1 S. Ct. 1 3 8 8 , 1 3 9 8 (2 0 1 1 ).P O Y S O N V

. R Y A N 38

Poy son presented a report by a neuropsy cholog ist retained during the state habe a s proceeding s, Robert B rig g s, Ph.D. According to Poy son, B rig g s’ report showed t h a t Poy son “was brain-damag ed” at t h e t i me of the murders, but h ad since “recovered, due to h is long stay first in jail, then on condemned row, without ch e m i ca l or phy sical insult to his brain.” I n Poy son’ s view, “the report leaves no d oubt that neurophy scholog ical testing s h o w s that he w as impaired at the time of the crime.” This mitig a ting evidence h a d been “lost forever.”

I n the state petition’s second claim, Poy son alleg ed that trial counse l failed to properly present mitig ation a nd
psy cholog ical evidence because counsel “did nothing to show the trial court how [his] abusive childhood caused, or directly related to, [his] conduct d

uring the murders.” He a lleg ed that trial counsel were deficient because they were “ r e q u ired to make some attempt to correlate Mr. Poy son’s phy sically a nd
psy cholog ically abusive backg round with his beh avior,” because “a connection b etween the two would be much more powerful in mitig ation than the abuse standing alone.”

2. Federal Petition

Poy son’s federal p e tition presented a substantially different claim – cou n sel’s failure to investig ate Poy son’s possible fetal alcohol spectrum disorder. Poy son alleg ed that trial counsel w e re ineffective because they “failed to make
any effort t o i nvestig ate and develop” evidence that Poy son suffered from F ASD. He alleg e d that d efense counsel “ failed to investig ate the obvious p ossibility that [ he] suffered from F ASD,” made “no e ffort” to “pursue this fertile area o f mitig ation” and “ig nored obvious evidence that [ he] was

ex p osed to drug s a

n d alcohol in u tero .” Poy son f urtherP O Y S O N V

. R Y A N 39

alleg ed that he was prejudiced by counsel’s deficie nt performance:

Their f ailure to adequately investig ate a nd sub s tantiate [ evidence that Petitioner was

ex p o s ed to drug s and alcohol in utero ] profoundly pre

j udiced Petitioner. A dequate

ex p lanation during the p r e

- s e n tence hearing o f the effect of F ASD on Petitioner’s brain would likely ha v e c onvinced the trial court that Pe titioner had a lesser deg ree o f culpability

.

3. Analysis

The district court concluded that the claim raised in the federal p e t i t ion had not been fairly presented to the A riz o na courts:

This Court concludes that the claim asserted i n t h e i n s t a n t a m e n d e d p e t i t i o n i s fundamentally different than that presented in

s t a te court. Petitioner’s arg ument in suppor t of [ t h i s claim] is based entirely on trial counsel’s alleg ed failure to investig ate a nd develop mitig ation evidence based on Petitioner’s in utero ex posure to drug s a nd alcohol. This version of Petitioner’s sentencing [ ineffective assistance of counsel] claim has never been presented to the Ariz o na courts. W h i l e it is true that new f actual alleg ations do n ot ord inarily render a claim

u n e x h a u s t e d

, a p e t i t i o n e r m a y n o t “fundamentally alter the leg al c l a im alreadyP O Y S O N V

. R Y A N 40

considered by the state courts.” Beaty v

. Stewart
, 303 F .3d 9 75, 989–90 ([ 9th Cir.] 2002) (citing Vasquez
, 474 U.S. a t 2 60). T o do so d eprives the state court of “a meaning f ul opportunity to consider alleg ations of le gal

error without interference f r o m the federal ju d i c iary .” Vasquez
, 474 U.S. at 257. Here, Petitioner is not simp l y p roffering additional evidentiary support f

or a factual the ory presented to the state court. Rather, he is alleg ing an entirely n ew theory of counsel ineffectiveness; one that has not previously been presented in state court.

W e ag ree. Poy son presented not on l y new facts in support o f a claim presented to the state c ourt, bu t a l so a fundamentally new theory of c ounsel’s ineffectiveness – o ne that the A riz ona courts lacked “a meaning ful o pportunity to consider.” Vasquez
, 474 U.S. at 257. The district court therefore properly dismissed Poy son’ s p enalty phase ineffective a ssistance of counsel c laim as procedura l l y defaulted.

AF F IRMED.P O Y S O N V

. R Y A N 41

THOMAS, Circuit J udg e, concurring in part and dissenting in part:

The Ariz ona Supreme Court unconstitutionally ex cluded mitig ating evidence from its consideration because the evidence was not causally related to the crimes. As a result, Poy son was deprived o f h is rig ht to an individualiz ed capital sentencing determination under the E ig hth and F ourteenth Amendments. Penry v. Lynaugh ( Penry I ), 492 U.S. 302, 317 (1989), a brogated on other gr o u n d s by Atkins v. V

irginia
, 53 6 U

. S

. 304 (2002); Eddings v. Oklahoma

, 455 U.S. 104, 110–12 (1982); Lockett v. Ohio

, 438 U. S

. 5 8 6
, 604–05 (1978). B ecause the majority ’s contrary conclusion cannot be reconciled w ith controlling Supreme Court precedent, I respectfully

dissent.

I

“[ I ] n capital cases the fundamental res p e c t for humanity underly ing the Eig h th Amendment

. . . requires consideration of the character and record of the individual offender and the circumstances of the particular o f fe n se as a constitutionally indispensable part of the process of inflicting the penalty o f death.” Lockett

, 438 U.S. at 604 ( alteration in orig inal) (q u o t i ng W

oodson v. North Carolina

, 428 U.S. 280, 304 (1976)). According ly

, t h e Supreme Court has held since 1978 that a defendant facing a capital sentence must have the opportunity to present all relevant evidence in mitig ation. See id. at 60 4

– 0 5. Merely admitting the e vidence at the penalty phase does n ot satis f y the constitutional mandate. Rather, to ensure that a sentence of death reflects “a reasoned moral response to a defend ant’s backg round, character, a nd crime,” Penry I

, 492 U.S. at 328 (emphasis in orig inal) (quoting Franklin v. Lynaugh

, 487 U.S. 1 6 4, 1 8 4 (1988)P O Y S O N V

. R Y A N 42

( O ’ Connor, J
., concurring in the judg ment)), the procedur e for e valuating mitig ating evidence must ensure that the
sentencer is “able to c onsider and g ive effect to that evidence i n imposing sentence,” id. a t 3 19 (emphasis a dded) (ci t i n g Hitchcock v

. Dugger
, 481 U.S. 393 (1987)); see also Eddings

, 455 U.S. at 113–14. A s en t e n c e r “g ive[ s] effect to” mitig ating evidence by weig hing all such admiss ible evidence
ag ainst any ag g ravating circumstances proven by th e state. See, e.g. , Eddings

, 4 55 U.S. at 114–15; Towery v. Ryan
, 673 F .3d 933, 944–45 (9th Cir. 2012). Only by viewing all sentencing evidence in contex t can a c ourt render the individualiz ed determination of moral culpabil ity that the Constitution requires. See Lambright v. Schr iro
, 490 F .3d 1103, 1115 (9th Cir. 2007) (per curiam).

A court violates the c o n stitutional command b y categ orically screening out certain mitig ating evidence a s a matter of law, before it may b e weig hed in combination with all other relevant sentencing e vidence. T ennard v. Dretke

, 542 U.S. 274, 284–86 (2004); Eddings

, 455 U

. S

. a t 113–14 (holding that the sentencer may not “refuse to consider, as a matter of law

, any relevant mitigating evidence”) (emphasis in orig inal). Relevance is the only prere quisite to full consideration of mitig ating evidence. See Tennard

, 542 U.S.
at 2 8 4–85. W hile the state court may assig n a relative w eig ht
to each item of admiss ible mitig ating evidence, Towery
, 673 F

. 3d a t 944, it cannot impose a ny additional c riteria, such

as a c ausal nex us requirement, to screen such evidence from the sentencer’s ultimate view of the defendant. A sentencing procedure that automatically as s i gns a “weig ht” of z ero to any mi t i ga ting evidence lacking a causal nex us to the crime is indisting uishable from an a naly tical “screen” that ex cludes

s uch evidence from consideration as a matter of law. Thus,
reg ardless o f what label it b e a rs, such a “weig hing ” procedureP O Y S O N V

. R Y A N 43

p l a inly violates Eddings

. Simply altering the label attac h e d
to an unconstitutional process d oe s not mag ically render it constitutional.

At the time it d ecided this case, t he Ariz ona Supreme Court applied a causal n ex us test similar to the o ne the U.S. Supreme Court held u nconstitutional in Tennard

. See
, e.g. , State v. S ansing
, 77 P.3d 3 0, 37 (Ariz

. 2003) (“Mere evidence of drug ing estion o r intox ica t i o n , however, is insufficient to establish statutory mitig ation. The defendant must a lso prove

a causal nex us between his drug use and the o f f e n s e .”) (footnote omitted); St ate v. Cañez
, 42 P.3d 564, 594 (Ariz

. 2002) (en banc) (citation omitted) ( “ [A ] causal nex us b etween the intox ication and the offense i s r e quired to establish non-statutory impairment mitig a tion”); State v. Kayer
, 984 P.2d 31, 45 (Ariz

. 1999) (en banc) (“A defendant must show a causal link between the alcohol abuse, substance abuse, or mental illness and the crim e i t s elf” for such evidence to be considered a mitig ating f actor); S tate v

. Clabourne

, 983 P.2d 748, 756 (Ariz

. 1 999) ( en banc) (defendant’s difficult childhood not a mitig ating factor because “he has failed to link hi s family backg round to his murderous conduct or to otherwise show how it affected his behavior”); State v. Djerf

, 959 P.2d 1274, 1289 (Ariz

. 1 998) (en banc) (defendant’s e x perience of c hildhood abuse cannot be co n s i d e red as a mitig ating factor unless there is a causal connection between the abuse a nd the crime); State v. Jones
, 937 P.2d 310, 322 (Ariz

. 1 997) (defendant did not establish impaired capa c i ty as either a statutory o r non-statutory mitig ating f

actor because “no testimony establishes, either because of his use of drug s or b ecause he was coming down off of the drug s, that defendant could not apprecia t e the
wrong fulness of his c o nduct or conform his conduct t o t h e law”); State v. W

allace , 773 P.2d 983, 9 86 (Ariz

. 1989) (enP O Y S O N V

. R Y A N 44

banc) (“A difficult family backg round, in and of itself, is not a mitig ating circumstance.”).

Ariz ona’s causal nex us test not only violated Eddings

, but

a l o ng line of Supreme Court c ases h olding that all relev a n t mitig ating evidence must be c o n sidered in capital sentencing

. These cases establish that evidence of a defendant’s backg round and character, including c hildh o od trauma o r mental health problems, is relevant i n m i t i gation even if it does nothing to ex plain why the defendant committed the crime of conviction. See Penry I
, 492 U.S. a t 322–23; Lockett

, 438 U.S. at 604. See also Lambright

, 4 9 0 F. 3 d at 1115. S u ch evidence may reasonably diminish the defendant’s moral c u l pability

, see Penry I
, 492 U.S. at 322–23, and “mig ht c ause a sentencer to determine that a life sentence, rath e r t h a n death a t the hands of the state, is the appropriate punishment for the parti c ular defendant,” Lambright

, 4 90 F .3d at 1115. Placing such evidence bey ond the sentencer’s effective reach is “simply unacceptable in any capital proceeding ,” id. (citing Locket t , 4 38 U.S. at 605), because it depriv e s the sentencer of the complete, multifaceted r endering of the defendant that must be the basis for capital sentencing

.

Ariz ona’s unconstitutional causal n ex us test remained in force until Tennard

, a n d it was in use when the A riz o na Supreme Court considered Poy son’s appeal.

II

I n r eviewing pre- Tennard Ariz o na capital cases, we do

n o t p r e s u m e t h a t t h e A r i z o n a S u p r e m e C o u r t unconstitutionally refused to consider relevant mitig ating evidence in its re-weighing of ag g ravating and mitig a tingP O Y S O N V

. R Y A N 45

factors. 1 Rather, we e x amine the record to determine whether the Ariz ona S u

p r e m e C o u

r t a p plied an unconstitutional causal

nex us test to screen mitig ating evidence from consideration in a particular case. I n Schad v. Ryan
, we affirmed the denial of h abeas relief when the record c ontained “no indication that the state c ourts applied a nex us test, either as a m e t h od o f assessing the weig ht of th e m itig ating evidence, or a s an unconstitutional screening mechanism

. . . . ” 671 F .3d 708, 724 (9th Cir. 2009) (per c ur i a m). I n doing so, S chad was consistent with t h e Supreme Court’s instruction that “[ f] ederal courts are not free to presume that a state court did
not com p ly with constitutional dictates o n the basis o f nothing more than a lack of citation.” Bell v. Cone
, 543 U.S. 447, 455 (2005) (per curiam) (citations omitted).

Similarly

, in Towery
, we r e j ected the defendant’s claim that the Ariz ona Supreme Court unconstitutionally screened mitig ating evidence that lacked a c ausal nex us to th e c rime. 673 F .3d at 944. W e stressed that the state supreme court h ad articulated the proper standard for c o n s i dering mitig ating

e v i d e nce. See id. I n independently r eviewing Towery ’s mitig ating evidence, the state court recog niz e d that, “ [ h] aving considered family backg round during t h e penalty phase, the
sentencer must g ive the evidence such weig ht that the
sentence reflects a ‘reasoned moral response’ to the

1 Co n t rary to th e m aj ority ’ s su g g estio n , Po y so n d o es n o t ask u s to
p resu me th at , b ecau se th e A rizo n a co u rts f req u en tly ap p lied an

u n co n stitu t io n al cau sal n ex u s test at th e tim e o f h is sen ten cin g , th e state

co u rt d id so i n h is case. Rath er, th e A rizo n a co u r t s’ ro u t in e—if n o t p e r f e c t l y c o n s isten t—p ractice o f u n co n stitu t io n al c a p i t a l s e n t e n c i n g b e f

o r e Ten n a rd p ro v id es p ro b ativ e ev id en ce th at th e s tate co u rt in P o y so n ’ s case

co m m itted t h e sam e erro r. T o co n s id er t h at ev id en ce, w

h i ch is p l a i n ly

m aterial to P o y so n ’ s claim

, is n ot to ap p ly an im p erm issib le p resu m

p tio n th at th e state co u rt erred h ere.P O Y S O N V

. R Y A N 46

e v i d en ce.” Id. (alteration in o rig inal) (quoting State v. Towery ( Towery I

), 920 P.2d 290, 311 (Ariz

. 1996)). I n lig ht of the w hole record, this statement demonstrated the A riz o na Supreme Court’s a

w arene ss that it must weig h all relevant mitig ating evidence ag ainst the ag g ravating circumsta n c e s,

even if it u ltimately assig n e d r elatively little weig h t to that mitig ating evidence which lacked a strong causal link to the crime. See id. at 944–45.

I n c ontrast, in S

tyers v. Schriro

, 547 F .3d 1026 (9 t h C ir. 2008), we looked b ey ond the Ariz ona Supreme Court’s char acteriz ation of its own reasoning where the form of its analy sis evidenced unconstitutional screening. S ee id. at 1035 ( “I n conducting its independent r eview of the propriety of Sty ers’ death sentence, the Ariz ona Supreme Court stated that it had ‘c o nsidered all of the proffered mitig ation’.

. . However, its analy sis prior to this statement indicates otherwise.”) (internal citation omitted). Th o u gh the state court claimed that it “considered” all mitig ating evidence, its analy sis showed that it impermissibly screened Sty ers’ mitig ating mental h ealth evidence sol ely because it lacked a causal nex us to the c rime. Declinin g to elevate form over substance, w e g ranted the writ u p on concluding that “ the Ariz ona Supreme court appears to have imposed a test directly contrary t o the constitutional requirement that all relevant mitig ating evidence be considered by the sentencing body .” Id. (emphasis added) (citing Smith v. Texas
, 543 U.S. 37, 45 (2004)).

Recently

, in L o

p e z v

. Ryan
, 630 F .3d 1198 ( 9th Cir. 2011), we declined to presume from Ariz ona case law alone that “a tacit c ausation ru le underpinned the state court’s decision” in the case at hand. Id

. at 1203. Rather than “infer[ ring ] unconstitutional reaso n i n g f r om judicial silence,”P O Y S O N V

. R Y A N 47

Lopez i n s t r ucts that we should “ look to what the record actually say s.” Id. at 1 204 (citing Schad

, 6 0 6 F. 3 d at 1046–47).

The import of all these cases is that we shou l d not presume any c onstitutional error from a silent recor d

, nor should w e accept without further ex a mination a state court’s characteriz ations of its own reasoning

. Rather, we should look to the substance of the record itself to determine whether the state court unconstitutionally e x cluded rel e v a n t m i t i g a ting evidence from consideration at sentencing

.

T houg h it insists otherwise, the majority treats t h e statement in Schad that relief should be denied “ [ a] bsent a clear indication in the r ecord that the state c ourt app l i ed t he
wrong standard” to create a new, more string ent test for determining whether a state court applied an unconstitutional causal nex us analy sis. 671 F

. 3d at 724. The m ajority then applies this “test” to resolve purported a m b i guities in the record in the state’s favor.

However, in stating that we should identify “ a clear indication in the record” that the state c ourt violated Tennard before g ranting h a

b eas relief, the Schad pa n el was merely

ex p laining Bell ’s ru l e ag ainst p resuming error from a silent record. No Supreme Court case imposes a “clear indication” test, nor does any c ase impose a r u l e that we must resolve ambig uities ag ainst the petitioner. To the contrary , as J u stice O’Connor w rote in her Eddings c oncurrence, the qualitatively different nature of a death sentence requires reviewing courts “to r e m o ve any leg itimate basis for finding ambig uity concerning the factors actually considered by the trial court.” 455 U.S. a t 119 (O’Connor, J
., concurring ). I n short, if there is any legi t i mate reason to believe that a court has ex cludedP O Y S O N V

. R Y A N 48

mitig at i n g evidence from consideration, we should g rant h a b eas relief so that a proper weig hing of ag g ravating a n d mitig ating factors can occur. T h e appropriate approach, taken in our more recent case s , i s s i mply to evaluate “what the record actually say s.” Lopez
, 630 F .3d at 1204 (citing Schad

, 606 F .3d at 1046–47). 2

Moreover, because the Schad panel found “ no indication that the state courts applied a nex us test, either as a method o f assessing the weig ht of the m i t i g ating evidence, or a s an unconstitutional screening mechanism

. . . ,” 671 F .3d at 724 (emphasis added), the case simply does not address w hat a “clear indication” of unconstitutional c ausal nex us screening looks like, nor the relationship between the purported “ clear indication” requireme n t a

n d t h e statutory standards g overning habeas review. Thus, even assuming that a “clear indication” of unconstitutional causal n ex u s s c r eening is in f act an

2 W o od fo r d v. Viscio tti
, 5 3 7 U.S. 1 9 (2 0 0 2 ) (p er cu r i a m )

, i s n o t to th e

co n trary

. T h ere, th e Su

p rem e Co u rt sim

ply rej ected o u r r e a d i n g of th e state co u rt’ s o p in io n ; it d id n o t in stru ct u s to den y h ab eas relief w h en ev er th e state co u rt f

ails to p ro v id e a “ clear in dicatio n ” o f co n stitu tio n al erro r. S ee id

. at 2 4

. Wh ile ack

n o w led g in g th at certain lan g u ag e in th e state

co u rt’ s o pin io n co u ld b e read as m isstatin g th e S t r ickla n d stan d ard

, th e W o o d fo rd Co u rt f

au lted u s f

o r rej ectin g o th er, stro n g er e v i den ce in th e

o p in io n in d icatin g th at th e state co u rt ap p l ied t h e co rrect stan d ard

. S

ee id

. If an y t h in g , W o o d fo rd su p p orts a clo se read i n g o f state co u rt d ecisio n s on h ab eas rev i ew to d eterm in e w h eth er th ey co n trav en e o r u n reaso n ab ly
ap p ly f ed eral law

. S

ee id

. at 2 3

– 2 4

. A s W

oo d f o rd itself d em o n strates, th is
ap p ro ach d o es n o t o f

f e n d “t h e presu m

p tio n th at state co u

rts k n o w an d f o llo w th e law .” Id

. at 2 4 (citatio n s o m i tted ). Mo reo v er, to th e ex ten t th e

m aj o rity f

in d s th e A rizo n a Su

p rem e Co u r t ’s o p in io n in th is case

am b i g u o u s o n th e cau sal n ex u s issu e, Wo o d f o r d is o f little h elp

, as i t sim p ly d o es n o t ad d ress th e an aly sis o f an am b ig u o u s state co u rt d ecisio n

o n h ab eas rev iew

. S

ee id

. at 2 3 (ass e r t i n g t

h at th e state co u rt op in io n at issu e “ pain stak in g ly

d escrib es th e [co rrect] S trickla n d stan d ard ”).P O Y S O N V

. R Y A N 49

independent prerequisite to g ranting habeas relief, Schad entirely fails to support the majority ’ s proposition that a “clear indication” can e x ist only in the absence of any ambig uity in the state court ’ s a n a l y sis. The notion that a h a b eas p etitioner can secure r e lief only by conclusiv el y establishing the absence of any ambig uity in the sta t e co u r t record is patently inconsistent with the preponderance standard that defines the p etitioner’s burden. 3 Assuming that

we and th e d i s trict court faithfully apply the statutory standard for g r anting a certificate of appealability

, we should

3 T h e m aj o rity in sists th at, u n der its reaso n i n g , P o y so n n eed n o t p ro v e th e ab sen ce o f an y m ean i n g f u l am b ig u ity in th e state co u rt reco rd to

secu re relief

. Rath er, th e m aj o rity asserts th at P o y s o n ’s claim m u st f ail b ecau se th e reco rd in th i s case “ is in so lu b l y a m b i g u o u s.” Maj

. Op

. 3 0

. T h u s, w e n o w h av e n ew categ o ries o f am b ig u ity : am

b ig u o u s,

mea nin g fu lly am big u o u s, an d in so lu a b l

y am b ig u o u s. No t o n ly are th ese lab els d istin ctio n s w ith o u t d if f eren ce, t h ese n ew tests are n o t to b e f o u n d in an y Su p rem e Co u rt j u risp ru d en ce, w h ich g o v ern s o u r co n s id eratio n s of A EDP A c a s es, n or o u r o w n

. T h e m aj o rity d o es n o t cite a s in g le case in

w h ich w e h av e rej ected a p r i s o n er’ s h ab eas claim b ecau se w e s im p ly

co u ld n o t f

i g u re o u t w

h at th e state co u rt h ad s aid

. In stead

, it relies on d ecisio n s d en y i n g relief b ecau se th e reco rd

— am b ig u o u s as it m ig h t h av e b een —u ltim ately sh o w ed th at th e state co u rt em p lo y ed a cau sal n ex u s test

as a p erm issib l e w eig h i n g m e c ha n ism or d id n o t rely o n cau sal n ex u s

an aly sis at all. Maj

. Op

. 26

– 2 7 (citin g To wery , 6 7 3 F.3 d at 94 5 ; S ch a d

, 6 7 1 F .3 d at 7 2 4 ; Lo

p ez , 63 0 F.3 d at 1 2 0 3 –0 4 ). T o th e ex ten t t h e m aj o rity

su g g ests th at th e state co u rt d ecisio n at i ssu e i n th is case i s u n p reced en ted in th e ex ten t o f i ts am

b ig u ity

, th at p ro p o sitio n

is b elied b y th e state co u rt d ecisio n i n S tyers , w

h ich

, as ex p l ain ed belo w , em p lo y ed strik i n g ly sim i lar lan g u ag e y et w as su f

f icien tly co m

p reh en sib l e t o su

p p o rt h ab eas relief

. O f

co u rse, P o y so n b ears th e b u rd en o f p ro o f

, b u t th ere is n o au th o rity f o r th e p ro p ositio n th at w e m ay th ro w u p o u r h an d s an d d ecl a r e t h e r e co rd t o o

am b i g u o u s to d e fi n i t i v ely in terp ret o n e w ay o r th e o th er. T h e m aj o rity f ails to reco g n ize th at t

h e p rep o n d eran ce stan d ard

, b y d ef in itio n , p erm its th e p arty b earin g th e b u rd en to p ro o f to p rev ail w ith o u t estab lish in g h is
p o sitio n b ey on d r e a s o n a b le d o u b t. T h e ef

f ect o f th e m aj o rity ru le is to alter th e b u rd en

o f p ro o f , an d it f latly co n tracts o u r an aly sis in S tyers

.P O Y S O N V

. R Y A N 50

o n l y have the opportunity to review claims as to which th e record is somewhat ambig uous. See Shackleford v. Hubbard

, 234 F

. 3d 1072, 1 0 8 1 ( 9 th Cir. 2000) (quoting Slack v

. McDaniel , 529 U.S. 473, 484 ( 2000)) (to obtain a certificate of appealability , a habeas petitioner must demonstrate “‘that reasonable jurists c o uld d ebate whether

. . . the petition should have been r esolved in a d ifferent manner . . . .’”). T o

secure relief, the petitioner need not sho w that there is no conceivable ambig uity in the record that could su p port the state’s position; rather, he must persuade us that his evidence th at the state court’s decision was contrary to clearly established federal law is strong er than the state’s.

I I I

I d isag ree with the majority ’s co nclusion that the state court’s decision is simply too ambig uous to p ermit meaning ful habeas review. Rather, when we ex amine “what the record actually say s,” Lopez
, 630 F

. 3d at 1 2 0 4 (citation omitted), the Ariz o n a Supreme Court’s use of an unconstitutional ca u s a l nex us test to screen Poy son’s mitig ating evidence of mental health problems and childhood abuse is readily

apparent. 4

The Ariz ona Supreme Court ’ s analy sis in this case is substantially indisting u ishable from its decision in Styers
, in which we found sufficient evidence of a constitut i o n al violation to g rant habeas relief. I n Styers
, t h e A riz o na Supreme C o u r t listed e ach item of proffered mitig ation

4 I ag ree w ith th e m aj o rity th at t h e Ar i z o n a Su p rem e Co u rt d id n o t

v io late Ed

din g s in rej ectin g Po y so n ’ s ev id en ce o f su b stan ce ab u se as a

m itig atin g f

acto r, as it f

o u n d th at h e f

ailed to estab lish a sig n if

ican t h isto ry

o f su b stan ce ab u se as a m atter o f f act.P O Y S O N V

. R Y A N 51

evidenc e : Fi r st, it noted that “ Defendant had no prior convictions f

or either misdemeanors or felony offen s e [s ] ” a n d stated that “[ t] his is relevant mitig ating evidence.” State v

. Styers
, 865 P.2d at 777 (citation omitted). Nex t, it stated that “Defendant’s service in Vietnam and h o norable discharg e a re also relevant mitig ating circums tances.” Id. (citation omitted). Then, the court noted that “ Defendant also suffered from post-trauma tic stress disorder prior to and around the
t ime of the murder as a result of his combat se r v i c e i n V i e t n a m.” Id. The court said that “[ t] h is could also, i n a n appropriate circumstance, constitute mitig ation. However,
two doctors who ex amined defendant cou l d n o t connect defendant’s condition t o his behavior at the time of the conspiracy and murder.” Id. (internal citation omitted). The
state c ourt did not recite a comprehensive list of the mitig ating factors it considered in its independent review o f Sty ers’ death sentence; thus, it did not clarify whether Sty ers’ post-traumatic stress disorder would i n fact “constitute mitig ation.” I nstead, the c ourt asser t e d that “[ w ] e have considered all of the proffered mitig ation and, like t he trial court, f ind it is not sufficiently substantial to warrant leniency .” I

d. at 777.

On h abeas review, we relied on this analy si s t o find that the state court violated S ty ers’ rig ht to an individualiz ed capital sentencing under Eddings and Smith

, n otwithstanding its claim to have considered all of Sty ers’ p roffered mitig ating evid e n ce. Styers
, 547 F .3d a t 1035. Thoug h the
state court a ck nowledg ed that evidence of post-traumatic stress disorder is, as a g eneral matter, relevant in mitig ation,

we fou nd that its “use of the conjunctive adverb ‘ however,’ following its acknowledg me nt that such evidence ‘could’ in certain c ases constitute mitig ation, indicates that this was not such a case.” Id. I n the contex t of its entire analy sis, this turnP O Y S O N V

. R Y A N 52

of phrase r eveale d t h a t t he state court had applied a causal

nex us test “directly contrary to the constitutional r equirement that all relevant mitig ating evidence be considered by the

se ntencing body .” Id. W e r eaffirmed this interpretation in Schad

, describing Styers a s a case in which the state court

“ expressly d isreg arded ” m itig ating psy chiatric evidence d ue to the defendant’s “ failure to demonstrate a causal connection between the disorder a

nd the crime.” Schad

, 671 F. 3 d 708, 724 (9th Cir. 2009) (emphasis added).

Upon close ex amination, the state c o urt’s analy sis in Poy son’s case is strik i n g ly similar to that in Styers

. W ith respect to P oy son’s mental h ealth evidence, the A riz o na Supreme C o u rt acknowledg ed that Poy son “ suffers from ‘certain personality disorders’” and did no t question that evidence of such disorders is relevant in mitig ation. S tate v. Poyson
, 7 P.3d at 90. I t then stated, echoing its reasoning in S t y e r s : “[ h] owever, we f

ind n o indication in the record that ‘the disorder controlled [ h is] conduct o r impaired his mental capacity to such a deg ree that leniency is requ i r ed

. ’” Id. at 90–91 (quoting State v

. Brewer
, 826 P.2d 783, 8 0 2 ( A riz

. 1992)). I t therefore accorded Poy so n ’ s evidence o f mental health p roblems “no mitig ating weig ht.” Id. at 91. Similarly

, the state court acknowledg e d that Poy son was phy sicall y , mentally

, and sex ually abused as a child. Id. I t then stated: “however, de fendant did not show that his traumatic childhood somehow rendered him unable to c ontro l h i s conduct. T hus, the evidence i s w ithout mitig a ting value.” Id

. 5

5 T h o u g h w e rev iew

th e A rizo n a Su

p rem e Co u rt’ s o p in io n i n th is case, t h e se n t en cin g co u rt’ s an aly sis is relev an t to th e ex t en t th at th e s t a t e

su p rem e co u rt g en erally a d o pted its reaso n in g

. W ith o u t a do u bt, th e

sen ten cin g co u

rt’ s d iscu s sio n o f P o y so n ’ s p r o f f ered m itig atin g ev id en ceP O Y S O N V

. R Y A N 53

I f any thing

, the state court p r o vided more evidence o f unconstitutional causal nex us screening in Poy son’s case than it did in Sty ers’. F or at the end of its opinion, the state court listed all of the mitig ating circumstances it cons i d e r ed in its independent review of Poy so n ’ s death sentence. Id. I t omitted from this critical tally both Poy son’s perso n a l i ty disorders and his a b usive childhood. See id. ( listing only “coopera t i o n with law enforcement, ag e, potential for rehabilitation, and f

amily support” as mitig ating e vidence in the case); see also Maj. Op. 21–22 (acknowledg in g t hat the
state court fou n d—and weig hed—only one statutory mitig ating factor (ag e) and thr e e n onstatutory mitig ating factors (cooperation w ith law enforcement, potential for rehabilitation, and family support)).

Bell forbids o ur presuming con s t i tutional error based on

a silent record. However, like the panel that g ranted the writ in Styers
, we are not bound to accept a state court’s characteriz ation of its o wn analy sis when i t s r easoning reveals a deprivation of constitutional r ig hts in viol a t i o n o f clearly e stablished law. This is particularly true when the

len ds g reater f

o rce to h is Pen ry claim

. Fo r ex am p le, th e sen ten cin g co u rt accep ted t h at P o y so n su f

f ers f ro m p erso n ality diso rd ers, y et th e sen ten cin g j u d g e co n clu d ed th at th i s e vi d e n c e d id n o t “ rise to th e lev el o f bein g a

m itig atin g f

acto r b eca u se I a m u n a b le to d ra w a n y co n n ectio n wh a tso ever with su ch p erso n a lity d iso rd ers a n d th e co mmissio n o f t h ese o f f en ses .” (em p h asis ad d ed ). T o t

h e ex t en t th at th e co u rt ex clu d ed th e ev id en ce on th e g ro u n d th at P o y so n ’ s m en tal h ealth p ro b lem s w ere n o t su f f i cien tly

sev ere, it erred

. Ev id en ce of m en tal h ealth p ro b l em s is relev an t in

m itig atio n , an d a d ef

en d an t n eed n o t sh o w th at su ch p ro b lem s rise to a sp ecif ied lev el of sev erity to estab lis h t h eir relev an ce. S

ee Ten n a rd

, 5 4 2 U.S. at 28 4

– 85

. T h e sen ten cin g co u rt im pro p erly rej ected P o y so n ’ s p erso n ality d iso rd ers as m itig atin g ev id en ce b ecau se o f th e lack of cau sal

co n n ectio n

b etw een th o se d iso rd ers an d th e m u rd ers at issu e.P O Y S O N V

. R Y A N 54

result of the state court’s error is to deprive a human being o f his life.

The Eig hth and F ourteenth Amendm e n t s prohibit state courts from screening mitig ating evidence fro m f ull consideration based o n a lack of causal nex us to the c rime o f conviction. I n reviewing Poy son’s sentence, however, the Ariz ona Supreme Court a pplied a f ormula that automatically assig ned a “ weig ht” or “value” of z ero to a ll mitig ating evidence that lacked a causal nex us to the crime. M ost sig nificantly

, this total devaluation of Poy son’ s mitig ating evidence occurred log ically prior to the state court ’s balancing o f a g g ravating and mitig ating circumstances. See State v. Poyson
, 7 P

. 3 d a t 90–91. As such, the A riz o na Supreme Court failed to “consider a l l relevant mitig ating evidence and weigh it against the evidence of the aggravating circumstances ,” Eddings

, 455 U.S. at 117 (emphasis added), which prevented Poy son from presenting t h e totality of his i ndividualiz ed circumstances to the court ex ercising authority
to condemn him to d e a th. The “consider ation” of Poy son’s mitig ating e vidence was without meaning where the co u r t discarded that evidence before the c ritical stage o f i ts analy sis—the final balancing o f mit i ga ting and ag g ravating circumstances that determined his sentence. To label the
process “weig hing ” does not make it so; screening by any other name is still screening

.

The Ariz ona Supreme Court did n o t consider mitig ating evidence offered by Poy son because it lacked a causal nex us to the c rime. I n doing so, it committed E d d i n g s error. Remand is required.

I respectfully

dissent, in part.