FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ALLEN POYSON,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 10-99005

D.C. No.

2:04-cv-00534-NVW

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

February 15, 2012—San Francisco, California

Filed March 22, 2013

Amended November 7, 2013

Before: Sidney R. Thomas, Raymond C. Fisher,

and Sandra S. Ikuta, Circuit Judges.

Order;

Dissent to Order by Chief Judge Kozinski;

Opinion by Judge Fisher;

Partial Concurrence and Partial Dissent by Judge Thomas
2 POYSON V. RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel issued an order denying a petition for panel

rehearing and rehearing en banc, filed an amended opinion,

and ordered that no further petitions will be entertained.

In the amended opinion, the panel affirmed the district

court’s denial of a 28 U.S.C. § 2254 habeas corpus petition by

an Arizona state prisoner challenging a conviction and capital

sentence for murder.

The panel first held that the Arizona Supreme Court did

not deny petitioner his right to individualized sentencing by

applying an unconstitutional causal nexus test to potentially

mitigating evidence, because the panel could not presume a

constitutional violation from an ambiguous record that did

not contain a “clear indication” that the court applied such a

test as an unconstitutional screening mechanism, as opposed

to a permissible means of determining the weight or

significance of mitigating evidence. 

The panel next denied relief on petitioner’s claim that the

Arizona courts failed to consider his history of substance

abuse as a nonstatutory mitigating factor. The panel

explained that the state courts considered the evidence and

found it wanting as a matter of fact because it failed to prove

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

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
POYSON V. RYAN 3

did not misconstrue the state trial court’s findings so as to

deny petitioner of meaningful appellate review.

Finally, the panel agreed with the district court that

petitioner’s ineffective assistance of counsel claim is

procedurally defaulted because it is fundamentally different

from the claim presented in state court such that the state

courts had no meaningful opportunity to consider it.

Concurring in part and dissenting in part, Judge Thomas

would hold that the state court unconstitutionally excluded

mitigating evidence from consideration because it was not

causally related to the crimes. 

Chief Judge Kozinski dissented from the denial of

rehearing en banc, joined by Judges Pregerson, Reinhardt,

Thomas, McKeown, Wardlaw, W. Fletcher, Paez, Berzon,

Murguia, Christen and Watford. Chief Judge Kozinski

adopted the explanation in Judge Thomas’ amended dissent

that the majority’s decision, to declare the record too

ambiguous to interpret, contravenes Supreme Court authority

and undermines Circuit law. Chief Judge Kozinski pointed

out that the court must “suture [a] fissure in our circuit law,”

regarding the standard of review of a state court’s application

of the causal nexus test.
4 POYSON V. RYAN

COUNSEL

Jon M. Sands, Federal Public Defender, Michael L. Burke

(argued), Assistant Federal Public Defender, Ngozi V.

Ndulue,Assistant FederalPublic Defender, Phoenix, Arizona,

for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, Division

Chief, Criminal Appeals/Capital Litigation Division, Jon G.

Anderson (argued), Assistant Attorney General, Capital

Litigation Section, Phoenix, Arizona, for RespondentAppellee.

ORDER

Judge Thomas has voted to grant the petition for panel

hearing and petition for rehearing en banc. Judges Fisher and

Ikuta have voted to deny the petition for panel rehearing.

Judge Ikuta has voted to deny the petition for rehearing en

banc and Judge Fisher has so recommended.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35(f).

Appellant’s petition for panel rehearing and rehearing en

banc, filed April 12, 2013, is denied. Chief Judge Kozinski’s

dissent from denial of en banc rehearing is filed concurrently

with this Order.
POYSON V. RYAN 5

* * * * *

This opinion filed at 711 F.3d 1087 (9th Cir. 2013) is

amended, and an Amended Opinion is filed concurrentlywith

this Order.

No further petitions will be entertained.

Chief Judge KOZINSKI, with whom Judges PREGERSON,

REINHARDT, THOMAS, MCKEOWN, WARDLAW,

W. FLETCHER, PAEZ,BERZON, MURGUIA, CHRISTEN

and WATFORD join, dissenting from the order denying the

petition for rehearing en banc:

Just how obvious does a state court’s constitutional error

have to be when a man’s life is on the line? According to the

panel majority, indisputably obvious, which is “beyond a

reasonable doubt” stood on its head. Judge Thomas’s

powerful dissent explains how the majority’s decision to

“throw up [its] hands and declare the record too ambiguous

to definitively interpret one way or the other,” Amended

Dissent at 49 n.3, contravenes Supreme Court authority and

undermines our circuit law. See Tennard v. Dretke, 542 U.S.

274 (2004); Eddings v. Oklahoma, 455 U.S. 104 (1982);

Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011). No need to

repeat his arguments; we adopt them, chapter and verse.

The issue will not go away. There are many more cases

in the pipeline where state courts in our circuit applied a

causal nexus test before affirming a sentence of death. We

can’t long continue down the path forged by the majority,

which forces panels to choose between two materially
6 POYSON V. RYAN

different standards of review in causal nexus cases: the newly

minted “clear indication” standard and our traditional

approach of scrutinizing the record and asking whether it

“appears” that a constitutional violation occurred. Styers v.

Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008).

We must suture this fissure in our circuit law, and soon. 

Tragically for Robert Poyson, when we do so, it will come

too late to save him. But come it will.

OPINION

FISHER, Circuit Judge:

Robert Allen Poyson was convicted of murder and

sentenced to death in 1998. After pursuing direct review and

seeking postconviction relief in state court, he filed a habeas

petition in federal district court. The district court denied the

petition, and Poyson appeals.

Poyson raises three claims on appeal, each of which has

been certified by the district court pursuant to Fed. R. App. P.

22(b) and 28 U.S.C. § 2253(c): (1) the Arizona courts applied

an unconstitutional causal nexus test to mitigating evidence;

(2) the Arizona courts failed to consider mitigating evidence

of his history of substance abuse; and (3) his trial counsel

provided ineffective assistance of counsel during the penalty

phase of his trial by failing to investigate the possibility that

he suffered from fetal alcohol spectrum disorder. We

conclude the first two claims are without merit and the third

is procedurally defaulted. Accordingly, we affirm.
POYSON V. RYAN 7

The Arizona Supreme Court did not denyPoyson his right

to individualized sentencing by applying an unconstitutional

causal nexus screeningtest to potentiallymitigating evidence. 

Under our case law, we cannot hold that a state court

employed an unconstitutional nexus test “[a]bsent a clear

indication in the record that the state court applied the wrong

standard.” Schad v. Ryan, 671 F.3d 708, 724 (9th Cir. 2011)

(per curiam). The record here shows that the Arizona

Supreme Court considered the absence of a causal connection

to the murders in evaluating Poyson’s mitigating evidence,

but it does not reveal whether the court applied a nexus test

as an unconstitutional screening mechanism or as a

permissible means of determining the weight or significance

of mitigating evidence. See Lopez v. Ryan, 630 F.3d 1198,

1203–04 (9th Cir. 2011). We therefore must hold that the

Arizona Supreme Court’s decision was not “contrary to”

Supreme Court precedent under 28 U.S.C. § 2254(d)(1). See

Schad, 671 F.3d at 723–24.

We also deny habeas relief on Poyson’s claim that the

Arizona courts failed to consider his history of substance

abuse as a nonstatutory mitigating factor. Poyson argues that

the state courts unconstitutionally refused to consider

mitigating evidence, a claim arising under 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 found it wanting as a matter of fact, finding that

the evidence failed to prove a history of substance abuse. 

There was therefore no constitutional violation under Lockett

and Eddings. Nor was there a constitutional violation under

Parker v. Dugger, 498 U.S. 308, 321 (1991). The state

supreme court did not misconstrue the state trial court’s

findings, so it did not deprive Poyson of meaningful appellate

review of his death sentence.
8 POYSON V. RYAN

Finally, we agree with the district court that Poyson’s

ineffective assistance of counsel claim is procedurally

defaulted because it is fundamentally different from the claim

presented in state court. Although it is true that “new factual

allegations do not ordinarily render a claim unexhausted, a

petitioner may not ‘fundamentally alter the legal claim

already considered by the state courts.’” Beaty v. Stewart,

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

Hillery, 474 U.S. 254, 260 (1986)). Poyson’s federal petition

raises a theory of deficient performance – failure to

investigate and present mitigating evidence of fetal alcohol

spectrum disorder – that the state courts had no “meaningful

opportunity to consider.” Vasquez, 474 U.S. at 257. The

claim is therefore procedurally defaulted.

I. BACKGROUND

A. The Crimes

Poyson was born in August 1976. The facts of his crimes,

committed in 1996, were summarized as follows by the

Arizona Supreme Court in State v. Poyson, 7 P.3d 79, 83

(Ariz. 2000).

Poyson met Leta Kagen, her 15 year-old son, Robert

Delahunt, and Roland Wear in April 1996. Poyson was then

19 years old and homeless. Kagen allowed him to stay with

her and the others at their trailer in Golden Valley, near

Kingman, Arizona. In August of the same year, Kagen was

introduced to 48 year-old Frank Anderson and his 14 year-old

girlfriend, Kimberly Lane. They, too, needed a place to live,

and Kagen invited them to stay at the trailer.
POYSON V. RYAN 9

Anderson informed Poyson that he was eager to travel to

Chicago, where he claimed to have organized crime

connections. Because none of them had a way of getting to

Chicago, Anderson, Poyson and Lane formulated a plan to

kill Kagen, Delahunt and Wear in order to steal the latter’s

truck.

On the evening of August 13, 1996, Lane lured Delahunt

into a small travel trailer on the property, ostensibly for sex. 

There, Anderson commenced an attack on the boy by slitting

his throat with a bread knife. Poyson heard Delahunt’s

screams and ran to the travel trailer. While Anderson held

Delahunt down, Poyson bashed his head against the floor. 

Poyson also beat Delahunt’s head with his fists, and pounded

it with a rock. This, however, did not kill Delahunt, so

Poyson took the bread knife and drove it through his ear. 

Although the blade penetrated Delahunt’s skull and exited

through his nose, the wound was not fatal. Poyson thereafter

continued to slam Delahunt’s head against the floor until

Delahunt lost consciousness. According to the medical

examiner, Delahunt died of massive blunt force head trauma. 

In all, the attack lasted about 45 minutes.

After cleaning themselves up, Poyson and Anderson

prepared to kill Kagen and Wear. They first located Wear’s

.22 caliber rifle. Unable to find ammunition, Poyson

borrowed two rounds from a young girl who lived next door,

telling her that Delahunt was in the desert surrounded by

snakes and the bullets were needed to rescue him. Poyson

loaded the rifle and tested it for about five minutes to make

sure it would function properly. He then stashed it near a

shed. Later that evening, he cut the telephone line to the

trailer so that neither of the remaining victims could call for

help.
10 POYSON V. RYAN

After Kagen and Wear were asleep, Poyson and Anderson

went into their bedroom. Poyson first shot Kagen in the head,

killing her instantly. After quickly reloading the rifle, he shot

Wear in the mouth, shattering Wear’s upper right teeth. A

struggle ensued, during which Poyson repeatedly clubbed

Wear in the head with the rifle. The fracas eventually moved

outside. At some point, Anderson threw a cinder block at

Wear, hitting him in the back and knocking him to the

ground. While the victim was lying there, Poyson twice

kicked him in the head. He then picked up the cinder block

and threw it several times at Wear’s head. After Wear

stopped moving, Poyson took his wallet and the keys to

Wear’s truck. To conceal the body, Poyson covered it with

debris from the yard. Poyson, Anderson and Lane then took

the truck and traveled to Illinois, where they were

apprehended several days later.

B. Trial and Conviction

A grand jury indicted Poyson on three counts of first

degree murder, one count of conspiracy to commit murder

and one count of armed robbery. The jury convicted on all

counts in March 1998, following a six-day trial.

C. Sentencing

1. Mitigation Investigation

Following the guilty verdicts, the state trial court

approved funds to hire a mitigation specialist to assist in

preparing for Poyson’s sentencing. Counsel retained

investigator Blair Abbott.
POYSON V. RYAN 11

In a June 1998 memorandum, Abbott informed counsel

that Poyson’s mother, Ruth Garcia (Garcia), used drugs

during the first trimester of her pregnancy and recommended

that counsel investigate the possibility that Poyson suffered

brain damage as a result. The memorandum advised counsel

that “one of the significant issues should be the hard core

drug abuse of both [of Poyson’s] parents, preconception and

in the first trimester of Ruth’s pregnancy.” Abbott wrote that

“Ruth Garcia’s heavy drug abuse in the pre pregnancy and

early on in the pregnancy undoubtedly caused severe damage

to her unborn child.”

In September 1998, Abbott mailed trial counsel “Library

& Internet research regarding drug & alcohol fetal cell

damage; reflecting how these chemicals when taken in the

first trimester [a]ffect subsequent intelligence, conduct,

emotions, urges etc [sic] as the child grows into adulthood.”

2. Presentence Investigation Report

The probation office prepared a presentence investigation

report in July 1998. Poyson told the probation officer that he

had a bad childhood because he was abused by a series of

stepfathers, who subjected him to physical, mental and

emotional abuse. Poyson also said he suffered from

impulsive conduct disorder, which was diagnosed when he

was 13. Poyson would not answer any questions on his

substance abuse history or juvenile record.

3. Presentencing Hearing

In October 1998, the trial court held a one-day

presentencing hearing. Poyson’s trial counsel called three

witnesses to present mitigating evidence: his aunt, Laura
12 POYSON V. RYAN

Salas, his mother, Ruth Garcia, and the mitigation

investigator, Blair Abbott. Counsel also introduced 56

exhibits. Poyson did not testify. The witnesses testified

about Poyson’s drug and alcohol abuse and the mental and

physical abuse inflicted on Poyson by his stepfather,

Guillermo Aguilar, and maternal grandmother, Mary Milner. 

They also testified that Poyson’s stepfather, Sabas Garcia

(Sabas), committed suicide in 1988, and that Sabas’ death had

a devastating effect on Poyson. They further testified that

Garcia used drugs and alcohol during the first three months

of her pregnancy with Poyson.

4. Poyson’s Sentencing Memorandum

In early November 1998, Poyson filed a sentencing

memorandum urging the court to find three statutory and 25

nonstatutory mitigating circumstances.1 As relevant here,

Poyson argued that his history of drug and alcohol abuse,

troubled childhood and personality disorders constituted both

statutory and nonstatutory mitigating circumstances.

1 At the time of Poyson’s sentencing, Arizona law required the

sentencing judge to impose a sentence of death if the court found one or

more aggravating circumstances and “no mitigating circumstances

sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. § 13-

703(E) (1998). The lawenumerated 10 aggravating circumstances, see id.

§ 13-703(F), and five statutory mitigating circumstances – including

diminished capacity, duress, minor participation and the defendant’s age,

see id. § 13-703(G). The sentencing court also was required to consider

any nonstatutory mitigating circumstances offered by the defendant – i.e.,

“any factors proffered by the defendant or the state which are relevant in

determining whether to impose a sentence less than death, including any

aspect of the defendant’s character, propensities or record and any of the

circumstances of the offense.” Id.
POYSON V. RYAN 13

Substance Abuse: Poyson argued that his substance abuse

was a statutory mitigating circumstance because it impaired

his capacity to appreciate the wrongfulness of his conduct or

conform his conduct to the requirements of law at the time of

the murders. See Ariz. Rev. Stat. Ann. § 13-703(G)(1)

(1998). In the alternative, he argued that, even if his

substance abuse was not causally related to the murders, it

constituted a nonstatutory mitigating circumstance. In

support of these arguments, Poyson emphasized his biological

parents’ use of drugs and alcohol at the time of his

conception, his mother’s use of drugs and alcohol during

pregnancy, an incident in which Poyson was involuntarily

intoxicated at the age of three or four, Poyson’s abuse of

alcohol beginning at age 13 and Poyson’s five-month

placement at WestCare, a residential treatment facility, for

substance abuse treatment in 1992, when he was 15. Poyson

also pointed to evidence that he used PCP two days before the

murders, used alcohol the night before the murders, used

marijuana the day of the murders and had suffered a PCP

flashback during Delahunt’s murder.

Troubled Childhood: Poyson argued that his troubled

childhood was a statutory mitigating circumstance because it

affected his behavior at the time of the murders. In the

alternative, he argued that his troubled childhood constituted

a nonstatutory mitigating circumstance. Poyson emphasized

his mother’s use of drugs and alcohol during the first

trimester of pregnancy. He argued that alcohol and drug use

during pregnancy can cause brain damage and birth defects

and lead a child to engage in delinquent and criminal

behavior. He also attached to the sentencing memorandum

several scientific articles on fetal alcohol syndrome. The

memorandum pointed out that Poyson never knew his

biological father, lacked a stable home life, was physically
14 POYSON V. RYAN

and mentally abused by several adults (including Aguilar and

Milner), was devastated by Sabas’ suicide and was sexually

abused and sodomized at a young age.2 Poyson emphasized

that his delinquent behavior and substance abuse began

shortly after the death of Sabas and the sexual assault.

Mental Health Issues: The sentencing memorandum

argued that Poyson suffered from several personality

disorders, constituting a nonstatutory mitigating

circumstance. The memorandum pointed to a 1990

psychiatric evaluation by Dr. Bruce Guernsey. According to

the sentencing memorandum, Guernsey diagnosed Poyson

with severe “conduct disorder,” reported that Poyson

exhibited symptoms of antisocial behavior, “manic

depression” or “impulsive conduct disorder” and

recommended that Poyson be prescribed medication to

control his behavior. Poyson also pointed to a 1990 Juvenile

Predisposition Investigation by Nolan Barnum. Barnum too

recommended that Poyson be prescribed medication to

control his behavior. A 1993 psychological evaluation

performed by Jack Cordon and Ronald Jacques from the State

Youth Services Center in St. Anthony, Idaho, diagnosed

Poyson with “mild mood disturbance.” Dr. Celia A. Drake,

who Poyson’s counsel retained to perform a forensic

evaluation of Poyson, diagnosed “Adjustment Disorder with

depressive mood, mild intensity,” and “Anti-social

Personality Disorder.” Dr. Drake found Poyson’s overall

intellectual functioning to be “in the low average range.”

2 Poyson presented evidence that he was sexually assaulted by a

neighbor on one occasion shortly after Sabas’ death.
POYSON V. RYAN 15

5. Sentencing Hearing and Imposition of Sentence

The trial court held a sentencing hearing and imposed

sentence in late November 1998.

The court found that the state had proved, beyond a

reasonable doubt, three aggravating circumstances for the

murders of Delahunt and Wear: the murders were committed

in expectation of pecuniary gain, the murders were especially

cruel and multiple homicides committed during the same

offense. See Ariz. Rev. Stat. Ann. § 13-703(F)(5), (6), (8)

(1998). The court found two aggravating circumstances

applicable to Kagen’s murder: pecuniary gain and multiple

homicides. See id. § 13-703(F)(5), (8).

The court found that Poyson failed to prove any statutory

mitigating factors. Poyson’s difficult childhood and mental

health issues were not statutorymitigating factors under § 13-

703(G)(1) because they did not significantly impair Poyson’s

capacity to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law.3 The court

explained:

There has certainly been evidence that the

defendant had gone through a turbulent life,

perhaps had mental-health issues that would

distinguish him from the typical person on the

street.

3

See Ariz. Rev. Stat. Ann. § 13-703(G)(1) (1998) (“Mitigating

circumstances [include] [t]he defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the requirements

of law was significantly impaired, but not so impaired as to constitute a

defense to prosecution.”).
16 POYSON V. RYAN

Listening to his description of how these

murders were committed, based upon a

description of somewhat a methodical

carrying out of a plan, the Court sees

absolutely nothing on the record, in this case,

to suggest the applicability of this mitigating

circumstance.

Turning to nonstatutory mitigating factors, the court first

explained the three-step analysis it used to evaluate each

nonstatutory mitigating circumstance proffered by Poyson:

“[1] to analyze whether the defense has shown this fact by a

preponderance of evidence, and then if they have, [2] to

determine whether I would assign that any weight as a

mitigating factor, and of course, for any that . . . pass both of

those two tests, [3] I have to weigh them all along with the

other factors in the final [sentencing] determination in this

case.”

Mental Health Issues: The court rejected Poyson’s

mental health issues as a nonstatutory mitigating factor at the

second step in the analysis. The court found that Poyson had

proven that he suffered from personality disorders, but gave

them no weight because they were not causally related to the

murders:

[T]he defendant had some mental health and

psychological issues. I think . . . the defense

has established that there were certain . . .

personality disorders that the defendant, in

fact, may have been suffering from.

The Court, however, does not find that

they rise to the level of being a mitigating
POYSON V. RYAN 17

factor because I am unable to draw any

connection whatsoever with such personality

disorders and the commission of these

offenses.4

Troubled Childhood: The court similarly rejected

Poyson’s difficult childhood as a nonstatutory mitigating

factor. At step one, the court found that the “defense has

shown that defendant suffered a dysfunctional childhood, that

he was subjected to physical and sexual abuse, and that he

was subjected to certain levels of mental abuse.” At step two,

however, the court gave these circumstances no mitigating

weight because they were not causally connected to the

murders: “The Court finds absolutely nothing in this case to

suggest that his latter conduct was a result of his childhood.”5

4 The court rejected evidence of Poyson’s low IQ for similar reasons. 

At the first step in the analysis, the court found that “there is certain

evidence in this case that would support the proposition that the

defendant’s mental capacity may be diminished, at least compared to the

norm in the population, and that his I.Q. may be low, at least compared to

the norm in the population.” The court, however, gave this circumstance

no mitigating weight in light of planning and sophistication that went into

the crimes – “certain prep[ar]atory steps that were taken – admittedly, not

overly-sophisticated, but attempts were made to do certain things, to

disable warning systems to enable these murders to be committed and to

get away with the loot that was the purpose of the murders; specifically,

the vehicle.”

5 The court also found that “the defense has established, by a

preponderance of the evidence, that the defendant lost a parent figure and

was subjected to sexual abuse at a relatively young age.” The court

rejected this factor at step two, however, because it was “not convinced

that there is any connection between that abuse, that loss, and his

subsequent criminal behavior.”
18 POYSON V. RYAN

Substance Abuse: Finally, the court rejected Poyson’s

history of substance abuse at both steps one and two in the

analysis: Poyson failed to establish a significant history of

drug or alcohol abuse and, even if he could do so, the court

would have given the evidence no weight because he failed

to establish a causal connection between the substance abuse

and the crimes. The court said:

The argument is made that the defendant was

subjected to alcohol abuse and drug abuse. 

Other than very vague allegations that he has

used alcohol in the past or has used drugs in

the past, other than a fairly vague assertion

that he was subject to some sort of effect of

drugs and/or alcohol at the time, that these

offenses were committed, I really find very

little to support the allegation that the

defendant has a significant alcohol and/or

drug abuse, and again, going back to the

methodical steps that were taken to murder

three people to get a vehicle to get out of

Golden Valley, it’s very difficult for me to

conclude that the defendant’s abilityto engage

in goal-oriented behavior was, in any way,

impaired at the time of the commission of

these offenses.

The court found only one nonstatutory mitigation factor

– Poyson’s cooperation with law enforcement. The court

concluded that this one mitigating factor was insufficiently

substantial to call for leniency and imposed a sentence of

death.
POYSON V. RYAN 19

6. Arizona Supreme Court Decision

The Arizona Supreme Court affirmed Poyson’s

conviction and sentence on direct appeal. See State v.

Poyson, 7 P.3d 79 (Ariz. 2000). As required by Arizona law,

the court “independently review[ed] the trial court’s findings

of aggravation and mitigation and the propriety of the death

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

The court agreed with the trial court that Poyson’s drug

use was not a statutory mitigating circumstance under § 13-

703(G)(1). See Poyson, 7 P.3d at 88–89. In the court’s view,

there was “scant evidence that he was actually intoxicated on

the day of the murders.” Id. at 88. “Although Poyson

purportedly used both marijuana and PCP ‘on an as available

basis’ in days preceding these crimes, the only substance he

apparently used on the date in question was marijuana,” and

Poyson “reported smoking the marijuana at least six hours

before killing Delahunt and eleven hours before the murders

of Kagen and Wear.” Id. The evidence that Poyson

experienced a PCP flashback during the murder of Delahunt

was not credible, and even if the flashback occurred, it lasted

only a “few moments.” Id. at 88–89. Poyson was “not under

the influence of PCP at any other time.” Id. at 89. Poyson’s

claims of substantial impairment were also belied by his

deliberate actions, including concocting a ruse to obtain

bullets from a neighbor, testing the rifle to make sure it would

work properly when needed, cutting the telephone line and

concealing the crimes. See id.

Substance Abuse: The court also agreed with the trial

court that Poyson’s substance abuse, mental health and

abusive childhood were not nonstatutory mitigating

circumstances. As to substance abuse, the court agreed with
20 POYSON V. RYAN

the trial court that Poyson had failed at step one because the

evidence did not show a history of drug or alcohol abuse:

The trial judge refused to accord any weight

to the defendant’s substance abuse as a

nonstatutory mitigating circumstance. It

characterized the defendant’s claims that he

had used drugs or alcohol in the past or was

under the influence of drugs on the day of the

murders as little more than “vague

allegations.” As discussed above, we agree.

Id. at 90.

Mental Health Issues: With respect to mental health

issues, the court agreed with the trial court that Poyson’s

personality disorders, although proven at step one, were

entitled to no weight at step two because they were not

causally connected to the murders:

The trial court found that Poyson suffers from

“certain personality disorders” but did not

assign any weight to this factor. Dr. Celia

Drake diagnosed the defendant with antisocial

personality disorder, which she attributed to

the “chaotic environment in which he was

raised.” She found that there was, among

other things, no “appropriate model for moral

reasoning within the family setting” to which

the defendant could look for guidance. 

However, we find no indication in the record

that “the disorder controlled [his] conduct or

impaired his mental capacity to such a degree

that leniency is required.” State v. Brewer,
POYSON V. RYAN 21

170 Ariz. 486, 505, 826 P.2d 783, 802 (1992);

see also [State v. Medina, 193 Ariz. 504, 517,

975 P.2d 94, 107 (1999)] (holding that the

defendant’s personality disorder “ha[d] little

or no mitigating value” where the defendant’s

desire to emulate his friends, not his mental

disorder, was the cause of his criminal

behavior). We therefore accord this factor no

mitigating weight.

Id. at 90–91.

Troubled Childhood: The court also agreed with the trial

court’s assessment of Poyson’s troubled childhood. The

court found that Poyson established an abusive childhood at

step one, but gave this consideration no weight at step two

because of the absence of a causal nexus:

Defendant presented some evidence that as a

youngster he was physically and mentally

abused by several stepfathers and his maternal

grandmother. He also self-reported one

instance of sexual assault by a neighbor. 

Again, however, defendant did not show that

his traumatic childhood somehow rendered

him unable to control his conduct. Thus, the

evidence is without mitigating value.

Id. at 91.

The court found three aggravating factors (pecuniarygain,

murder committed in an especially cruel manner and multiple

homicides), one statutory mitigating factor (Poyson’s age)

and three nonstatutory mitigating factors (cooperation with
22 POYSON V. RYAN

law enforcement, potential for rehabilitation and family

support). See id. at 90–91.6 The court concluded that the

mitigating 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 Postconviction Review

The Arizona Superior Court denied Poyson’s petition for

postconviction relief in 2003. The court provided a reasoned

decision on Poyson’s claim of penalty phase ineffective

assistance of counsel (his third claim in this appeal) but not

on Poyson’s claims that the Arizona courts failed to consider

relevant mitigating evidence (his first and second claims on

appeal). In 2004, the Arizona Supreme Court summarily

denied Poyson’s petition for review.

E. Federal District Court Proceedings

Poyson filed a federal habeas petition in 2004. In 2010,

the district court denied the petition. The court rejected on

the merits Poyson’s claims that the Arizona courts failed to

consider mitigating evidence. The court concluded that

Poyson’s penalty phase ineffective assistance of counsel

claim was procedurally defaulted because it was

“fundamentally different than [the claim] presented in state

court.” Poyson timely appealed.

 

6 The Arizona Supreme Court thus found three more mitigating factors

than the trial court found. The appellate court nonetheless agreed with the

trial court that a death sentence was warranted.
POYSON V. RYAN 23

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(a). We review de novo the district court’s denial of

Poyson’s petition for habeas corpus, and we review the

district court’s findings of fact for clear error. See Brown v.

Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). Dismissals

based on procedural default are reviewed de novo. See

Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). 

We address Poyson’s three claims in turn.

III. DISCUSSION

A. Causal Nexus Test

Poyson argues that the Arizona courts applied an

unconstitutional causal nexus test to mitigating evidence of

his mental health issues, traumatic childhood and substance

abuse history, in violation of his Eighth and Fourteenth

Amendment rights to an individualized sentencing. He

contends that the state courts improperly refused to consider

this evidence in mitigation because he failed to establish a

causal connection between the evidence and the murders. He

argues that the state courts’ actions violate his constitutional

rights as recognized in Tennard v. Dretke, 542 U.S. 274,

283–87 (2004), Smith v. Texas, 543 U.S. 37, 45 (2004) (per

curiam), and several earlier decisions. These decisions hold

that requiring a defendant to prove a nexus between

mitigating evidence and the crime is “a test we never

countenanced and now have unequivocally rejected.” Smith,

543 U.S. at 45.

Because Poyson filed his federal habeas petition after

April 24, 1996, he must not only prove a violation of these
24 POYSON V. RYAN

rights but also satisfy the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). See Fenenbock v. Dir. of

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

Under AEDPA, we may not grant habeas relief with

respect to any claim adjudicated on the merits in state court

unless the state court’s decision was “contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States,” or “based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). We review the last

reasoned state court decision addressing the claim, which for

Poyson’s causal nexus claim is the Arizona Supreme Court’s

decision affirming Poyson’s death sentence on direct appeal. 

See Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010). 

Poyson relies on AEDPA’s “contrary to” prong, arguing that

the Arizona Supreme Court’s decision in State v. Poyson,

7 P.3d 79 (Ariz. 2000), was contrary to Lockett v. Ohio,

438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104

(1982), and Penry v. Lynaugh, 492 U.S. 302 (1989),

abrogated on other grounds by Atkins v. Virginia, 536 U.S.

304 (2002).

1. Exhaustion

As a threshold matter, we agree with Poyson that he has

fully exhausted this claim. The state argues that in state court

Poyson raised a causal nexus claim with respect to only

mental health issues and his troubled childhood, not his

history of substance abuse. We disagree. Having reviewed

the record, we conclude that Poyson exhausted the claim with

respect to all three categories of mitigating evidence. See

Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004) (“A
POYSON V. RYAN 25

petitioner has exhausted his federal claims when he has fully

and fairly presented them to the state courts.”).

2. Whether the Arizona Supreme Court’s Decision Was

Contrary to Clearly Established Federal Law

Lockett, Eddings and Penry held that “a State could not,

consistent with the Eighth and Fourteenth Amendments,

prevent the sentencer from considering and giving effect to

evidence relevant to the defendant’s background or character

or to the circumstances of the offense that mitigate against

imposing the death penalty.” Penry, 492 U.S. at 318. “[I]t is

not enough simply to allow the defendant to present

mitigating evidence to the sentencer.” Id. at 319. “The

sentencer must also be able to consider and give effect to that

evidence in imposing sentence.” Id. “[T]he sentence imposed

at the penalty stage should reflect a reasoned moral response

to the defendant’s background, character, and crime.” Id.

(quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O’Connor, J., concurring)) (internal quotation marks

omitted).

Under these decisions, a state court may not treat

mitigating evidence of a defendant’s background or character

as “irrelevant or nonmitigating as a matter of law” merely

because it lacks a causal connection to the crime. Towery v.

Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per curiam). The

sentencer may, however, consider “causal nexus . . . as a

factor in determining the weight or significance of mitigating

evidence.” Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir.

2011). “The . . . use of the nexus test in this manner is not

unconstitutional because state courts are free to assess the

weight to be given to particular mitigating evidence.” Schad
26 POYSON V. RYAN

v. Ryan, 671 F.3d 708, 723 (9th Cir. 2011) (per curiam). As

the Court explained in Eddings:

Just as the State may not by statute preclude

the sentencer from considering any mitigating

factor, neither may the sentencer refuse to

consider, as a matter of law, any relevant

mitigating evidence. . . . The sentencer, and

the Court of Criminal Appeals on review, may

determine the weight to be given relevant

mitigating evidence. But they may not give it

no weight by excluding such evidence from

their consideration.

Eddings, 455 U.S. at 113–15.

Consistent with these principles, we have granted habeas

relief when state courts have applied a causal nexus test as a

screening mechanism to deem evidence irrelevant or

nonmitigating as a matter of law. In Styers v. Schriro,

547 F.3d 1026 (9th Cir. 2008) (per curiam), we granted relief

where the state court held that a defendant’s post-traumatic

stress disorder could not constitute mitigation unless the

defendant could connect the condition to the crime. See id.

at 1035. In Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010),

we granted relief where the state court held that, “[w]ithout

a showing of some impairment at the time of the offense,

drug use cannot be a mitigating circumstance of any kind.” 

Id. at 1270–71 (alteration in original) (quoting State v.

Williams, 904 P.2d 437, 453 (Ariz. 1995)) (internal quotation

marks omitted).

In contrast, we have refused to find a constitutional

violation when the state court employed a causal nexus test as
POYSON V. RYAN 27

a permissible weighing mechanism. See Towery, 673 F.3d at

945–46. We have also denied relief when the record contains

no indication that the state court employed a causal nexus test

at all. See Schad, 671 F.3d at 724 (denying relief where

“there is no indication that the state courts applied a nexus

test, either as a method of assessing the weight of the

mitigating evidence, or as an unconstitutional screening

mechanism to prevent consideration of any evidence”);

Lopez, 630 F.3d at 1203–04 (denying relief where the state

courts made no mention of a causal nexus test, because “there

is no reason to infer unconstitutional reasoning from judicial

silence”).

Here, the record shows that the Arizona Supreme Court

applied a causal nexus test to Poyson’s evidence of mental

health issues and a difficult childhood, see Poyson, 7 P.3d at

90–91, but does not reveal whether the court considered the

absence of a causal nexus as a permissible weighing

mechanism, as in Towery, or as an unconstitutional screening

mechanism, as in Styers and Williams. This ambiguity

precludes us from granting habeas relief. We held in Schad

that, “[a]bsent a clear indication in the record that the state

court applied the wrong standard, we cannot assume the

courts violated Eddings’s constitutional mandates.” 671 F.3d

at 724. That principle governs here: we cannot assume the

state court applied the wrong standard. The Arizona Supreme

Court’s decision therefore was not contrary to clearly

established federal law under § 2254(d)(1).

We reach the same conclusion with respect to the Arizona

Supreme Court’s evaluation of Poyson’s evidence of a history

of substance abuse. The state court rejected this evidence at

step one in its analysis, finding as a matter of fact that Poyson

had failed to establish a significant history of substance abuse
28 POYSON V. RYAN

by a preponderance of the evidence. The record does not

indicate that the court considered this evidence at step two, or

that, if it did so, it employed an impermissible causal nexus

test in doing so. See Poyson, 7 P.3d at 90. The court’s

treatment of Poyson’s substance abuse evidence thus was

likewise not contrary to Lockett, Eddings and Penry.

We recognize the possibility that the Arizona Supreme

Court applied an unconstitutional causal nexus test. The

record, however, contains no clear indication that the court

did so. We may not presume a constitutional violation from

an ambiguous record. We therefore hold that the district

court properly denied habeas relief on Poyson’s causal nexus

claim. See Schad, 671 F.3d at 724.

The dissent contends that Schad’s presumption that state

courts follow constitutional requirements should not apply

here for six reasons. First, the dissent argues that we should

find error in Poyson’s case based on the Arizona Supreme

Court’s use of an unconstitutional causal nexus test in other

cases at the time of Poyson’s sentencing. Dissent 43. This

argument might be persuasive if the Arizona courts

consistently applied an unconstitutional causal nexus test

during the relevant period. That is not the case, however. As

we recognized in Lopez,

Our review of the case law confirms

Arizona’s unsettled past with respect to this

issue. Some cases decided prior to Tennard

applied a causal nexus requirement in an

impermissible manner. Other cases, however,

properly looked to causal nexus only as a

factor in determining the weight or

significance of mitigating evidence.
POYSON V. RYAN 29

630 F.3d at 1203–04 (footnote omitted); see also Towery,

673 F.3d at 946 (also recognizing that the Arizona Supreme

Court’s decisions have been inconsistent on this question). 

Under these circumstances, the most we can say is that

Arizona’s troublesome history weakens the presumption that

the Arizona Supreme Court followed the law in Poyson’s

case; it does not flip the presumption altogether.7

Second, the dissent argues that the presumption that state

courts follow constitutional mandates applies only to a silent

record and not to the interpretation of a state court’s

language. Dissent 47. This argument overlooks the Supreme

Court’s decision in Woodford v. Visciotti, 537 U.S. 19 (2002). 

There, the state court applied an arguably erroneous test for

determining prejudice under Strickland v. Washington,

466 U.S. 468 (1984). Some language in the state court’s

decision cited the test correctly, whereas other language

misstated the test. See Visciotti, 537 U.S. at 22–24. We held

that the state court had applied an erroneous test, but the

Supreme Court reversed, holding that our “readiness to

attribute error is inconsistent with the presumption that state

courts know and follow the law.” Id. at 24. After Visciotti,

therefore, we must consider the presumption that state courts

follow the law not only when we draw inferences from the

court’s silence but also when, as here, we construe a state

court’s ambiguous language.

7 Under circuit precedent, moreover, our focus must be on the record in

this case. See Lopez, 630 F.3d at 1204 (“In light of this backdrop, which

highlights a range of treatment of the nexus issue, there is no reason to

infer unconstitutional reasoning from judicial silence. Rather, we must

look to what the record actually says.”); Towery, 673 F.3d at 946. We

reject the suggestion that because other Arizona cases may have involved

causal nexus error we should presume that this case did as well.
30 POYSON V. RYAN

Third, quoting Justice O’Connor’s concurrence in

Eddings, the dissent argues that “the qualitatively different

nature of a death sentence requires reviewing courts ‘to

remove any legitimate basis for finding ambiguity concerning

the factors actually considered by the trial court.’” Dissent 47

(quoting Eddings, 455 U.S. at 119 (O’Connor, J.,

concurring)). A majority of the Court, however, has never

adopted Justice O’Connor’s suggestion that ambiguity alone

requires habeas relief. Unlike Eddings, moreover, this case

is governed by AEDPA, and AEDPA does not allow us to

presume from an ambiguous record that the state court

applied an unconstitutional standard. To the contrary, such

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

with § 2254(d)’s highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions

be given the benefit of the doubt.” Visciotti, 537 U.S. at 24

(citation and internal quotation marks omitted); cf. Lopez v.

Schriro, 491 F.3d 1029, 1037 (9th Cir. 2007) (holding that

alleged ambiguity in the state court’s language was

insufficient “to overcome the presumption that the state court

knew and followed the law”).

Fourth, according to the dissent, our holding imposes a

heightened standard of proof on the petitioner and means that

“a habeas petitioner can secure relief only by conclusively

establishing the absence of any ambiguity in the state court

record.” Dissent 49. Not so. The problem in this case is not

the existence of some ambiguity in the record; it is that the

record is insolubly ambiguous, cf. Doyle v. Ohio, 426 U.S.

610, 617 (1976), meaning that the record is inconclusive as to

whether the Arizona Supreme Court applied a nexus test as a

permissible weighing mechanism or as an impermissible

screening mechanism. As we have noted elsewhere, a party

who bears the burden of proving a fact by a preponderance of
POYSON V. RYAN 31

the evidence cannot carry that burden by relying on an

inconclusive record. See Young v. Holder, 697 F.3d 976, 989

(9th Cir. 2012) (en banc) (explaining that “the burden of

persuasion . . . determines ‘which party loses if the evidence

is closely balanced’” (quoting Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 56 (2005))). Our opinion merely adheres

to that principle. Because Poyson 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 mitigating

evidence.”). We have not imposed a heightened burden of

proof.

Fifth, the dissent argues that this case is “substantially

indistinguishable” from Styers, where we granted habeas

relief. Dissent 50. In Styers, the Arizona Supreme Court

rejected evidence that the defendant suffered from posttraumatic stress disorder as a result of combat service in

Vietnam, stating: “This could also, in an appropriate case,

constitute mitigation. . . . However, two doctors who

examined defendant could not connect defendant’s condition

to his 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 language in Styers

plainly implied that the evidence could be mitigating only if

it was causally connected to the crime – i.e., that the evidence

could not be mitigating absent a causal connection to the

crime. The record in Styers, therefore, contained a clear

indication that the state court applied an unconstitutional

causal nexus test – it was not insolubly ambiguous. See

Eddings, 455 U.S. at 114 (holding that “the sentencer [may

not] refuse to consider, as a matter of law, any relevant
32 POYSON V. RYAN

mitigating evidence”); Towery, 673 F.3d at 946 (explaining

that the Eighth Amendment prohibits “treating the evidence

as irrelevant or nonmitigating as a matter of law”). The

record here contains no comparable indication. The court did

not say that Poyson’s evidence could not be mitigating; it said

only that the evidence was not mitigating, a conclusion that

could as easily reflect permissible weighing as impermissible

screening.

Finally, the dissent argues that the state court violated the

Eighth Amendment by discarding Poyson’s evidence “before

the critical stage of its analysis – the final balancing of

mitigating and aggravating circumstances that determined his

sentence.” Dissent 54. The state court, however, had

discretion to accord Poyson’s evidence no weight. See

Eddings, 455 U.S. at 114–15; Schad, 671 F.3d at 723. 

Assuming the state court permissibly accorded the evidence

no weight, we do not see how the court could have committed

constitutional error by excluding the evidence from the

ultimate sentencing determination. Had the state court

afforded the evidence some weight, but declined to consider

it in the final sentencing analysis, this would be a different

case.

At bottom, the ambiguous record in this case is no

different from those in Schad and Lopez, two cases in which

we declined to grant habeas relief. In both of those cases, we

denied relief notwithstanding Arizona’s troublesome history

of applying an unconstitutional causal nexus test – and

notwithstanding the existence of an ambiguous record. Here

too, in the absence of a clear indication in the record that the

state court applied an unconstitutional standard, we see no

alternative but to affirm.
POYSON V. RYAN 33

B. Failure to Consider Substance Abuse

At sentencing, Poyson presented evidence of a history of

drug and alcohol abuse, but the state trial court and the state

supreme court declined to treat the evidence as a nonstatutory

mitigating factor. The trial court found that Poyson had

presented only “very vague allegations that he has used

alcohol . . . or . . . drugs in the past,” and found “very little to

support the allegation that the defendant has a significant

alcohol and/or drug abuse” history. The supreme court

agreed that Poyson’s claims to have “used drugs or alcohol in

the past” were “little more than ‘vague allegations.’” Poyson,

7 P.3d at 90.

Poyson contends the state courts’ conclusions that he

provided only “vague allegations” of substance abuse were

unreasonable determinations of the facts under 28 U.S.C.

§ 2254(d)(2) and violated his constitutional rights under

Lockett, 438 U.S. at 605, Eddings, 455 U.S. at 112, and

Parker v. Dugger, 498 U.S. 308, 321 (1991). We disagree.

Poyson’s claim – that “[b]ecause his death sentence is

based upon [an] unreasonable determination of facts, [he] is

entitled to habeas relief” – misunderstands the law. Even

assuming that the state courts’ determination that Poyson

provided only “vague allegations” of substance abuse was an

unreasonable determination of the facts under § 2254(d)(2),

an issue we need not reach, Poyson’s claim fails because he

cannot demonstrate that his constitutional rights were

violated. See Wilson v. Corcoran, 131 S. Ct. 13, 17 (2010)

(per curiam) (holding that while § 2254(d)(2) relieves a

federal court of AEDPA deference when the state court

makes an unreasonable determination of facts, it “does not

repeal the command of § 2254(a) that habeas relief may be
34 POYSON V. RYAN

afforded to a state prisoner ‘only on the ground’ that his

custody violates federal law”); see also Frantz v. Hazey,

533 F.3d 724, 737 (9th Cir. 2008) (en banc) (holding that

AEDPA does not “require any particular methodology for

ordering the § 2254(d) and § 2254(a) determination[s]”). An

unreasonable determination of the facts would not, standing

alone, amount to a constitutional violation under Lockett,

Eddings or Parker.

Lockett invalidated an Ohio death penalty statute that

precluded the sentencer from considering aspects of the

defendant’s character or record as a mitigating factor. See

438 U.S. at 604. Eddings held that a sentencer may not

refuse to consider, as a matter of law, any relevant mitigating

evidence. See 455 U.S. at 113–15. Here, the state courts

considered Poyson’s evidence of substance abuse, but found

it wanting as a matter of fact and that Poyson failed to prove

a history of substance abuse. Thus, there was no

constitutional violation under Lockett and Eddings.

Nor has Poyson shown a constitutional violation under

Parker. There, the state supreme court reweighed

aggravating and mitigating circumstances before affirming a

death sentence. See Parker, 498 U.S. at 321–22. The court’s

reweighing, however, was premised on its erroneous

assumption that the state trial court had found that there were

no mitigating circumstances. See id. The Supreme Court

held that the state supreme court’s action deprived the

defendant of “meaningful appellate review,” and thus that the

sentencing violated the defendant’s right against “the

arbitrary or irrational imposition of the death penalty.” Id. at

321. In Poyson’s view, Parker stands for the broad

proposition that, “[w]hen a state court’s imposition of the

death penalty is based not on the characteristics of the
POYSON V. RYAN 35

accused and the offense but instead on a misperception of the

record, the defendant is not being afforded the consideration

that the Constitution requires.” In Parker, however, the state

supreme court had misconstrued the state trial court’s

findings, something that did not occur here. Parker does not

hold that a state court’s erroneous factual finding in assessing

mitigation evidence necessarily amounts to a constitutional

violation. Rather, it suggests the opposite:

This is not simply an error in assessing the

mitigating evidence. Had the Florida

Supreme Court conducted its own

examination of the trial and sentencing

hearing records and concluded that there were

no mitigating circumstances, a different

question would be presented. Similarly, if the

trial judge had found no mitigating

circumstances and the Florida Supreme Court

had relied on that finding, our review would

be very different.

Id. at 322.

In sum, we hold that Poyson is not entitled to habeas

relief because he has not shown a constitutional violation

under Lockett, Eddings or Parker. Because Poyson has raised

arguments under only Lockett, Eddings and Parker, we need

not decide whether, or under what circumstances, a state

court’s erroneous factfinding in assessingmitigating evidence

can itself rise to the level of a constitutional violation.
36 POYSON V. RYAN

C. Penalty Phase Ineffective Assistance of Counsel

In his federal habeas petition, Poyson argued that he

received ineffective assistance of counsel during the penalty

phase of his trial because his trial counsel failed to investigate

the possibility that he suffered from fetal alcohol spectrum

disorder (FASD). The district court ruled that Poyson failed

to present this claim to the state courts, and hence that the

claim was procedurally defaulted. Poyson challenges that

ruling on appeal. We review de novo. See Robinson,

595 F.3d at 1099.

A state prisoner must normally exhaust available state

judicial remedies before a federal court will entertain his

petition for habeas corpus. See Picard v. Connor, 404 U.S.

270, 275 (1971); Weaver v. Thompson, 197 F.3d 359, 363–64

(9th Cir. 1999); 28 U.S.C. § 2254(b)(1)(A). This rule

“reflects a policy of federal-state comity, an accommodation

of our federal system designed to give the State an initial

opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Picard, 404 U.S. at 275 (citations

and internal quotation marks omitted). “A petitioner can

satisfy the exhaustion requirement by providing the highest

state court with a fair opportunity to consider each issue

before presenting it to the federal court.” Weaver, 197 F.3d

at 364.

“[A] petitioner may provide further facts to support a

claim in federal district court, so long as those facts do not

‘fundamentally alter the legal claim already considered by the

state courts.’” Lopez v. Schriro, 491 F.3d 1029, 1040 (9th

Cir. 2007) (quoting Vasquez v. Hillery, 474 U.S. 254, 260
POYSON V. RYAN 37

(1986)).8“[T]his rule allows a petitioner who presented a

particular [ineffective assistance of counsel] claim, for

example that counsel was ineffective in presenting

humanizing testimony at sentencing, to develop additional

facts supporting that particular claim.” Moormann v. Schriro,

426 F.3d 1044, 1056 (9th Cir. 2005) (citing Weaver, 197 F.3d

at 364). “This does not mean, however, that a petitioner who

presented any ineffective assistance of counsel claim below

can later add unrelated alleged instances of counsel’s

ineffectiveness to his claim.” Id. (citing Carriger v. Lewis,

971 F.2d 329, 333 (9th Cir. 1992) (en banc)).

1. State Proceedings

In his state habeas petition, Poyson raised two ineffective

assistance of counsel claims relevant here. In the first claim,

Poyson alleged that trial counsel “was ineffective because he

failed to request the appointment of experts in the field of

mental health early in the case.” He alleged that the

investigation for both phases of the trial should have begun

“immediately” upon counsel’s appointment, including “the

immediate appointment of experts for both parts of the trial.” 

Counsel’s failure “to immediately secure the appointment of

mental health experts . . . prejudiced” him in two ways. First,

it precluded him from presenting a defense of “diminished

capacity” with respect to the Delahunt murder during the guilt

phase of the trial. Second, “the failure of counsel to

immediately pursue mitigation caused the loss of mitigating

information” that could have been presented at sentencing. 

 

8

 As the Supreme Court has recently clarified, these factual allegations

must be based on the “record that was before the state court that

adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011).
38 POYSON V. RYAN

Poyson presented a report by a neuropsychologist retained

during the state habeas proceedings, Robert Briggs, Ph.D. 

According to Poyson, Briggs’ report showed that Poyson

“was brain-damaged” at the time of the murders, but had

since “recovered, due to his long stay first in jail, then on

condemned row, without chemical or physical insult to his

brain.” In Poyson’s view, “the report leaves no doubt that

neurophyschological testing shows that he was impaired at

the time of the crime.” This mitigating evidence had been

“lost forever.”

In the state petition’s second claim, Poyson alleged that

trial counsel failed to properly present mitigation and

psychological evidence because counsel “did nothing to show

the trial court how [his] abusive childhood caused, or directly

related to, [his] conduct during the murders.” He alleged that

trial counsel were deficient because they were “required to

make some attempt to correlate Mr. Poyson’s physically and

psychologically abusive background with his behavior,”

because “a connection between the two would be much more

powerful in mitigation than the abuse standing alone.”

2. Federal Petition

Poyson’s federal petition presented a substantially

different claim – counsel’s failure to investigate Poyson’s

possible fetal alcohol spectrum disorder. Poyson alleged that

trial counsel were ineffective because they “failed to make

any effort to investigate and develop” evidence that Poyson

suffered from FASD. He alleged that defense counsel “failed

to investigate the obvious possibility that [he] suffered from

FASD,” made “no effort” to “pursue this fertile area of

mitigation” and “ignored obvious evidence that [he] was

exposed to drugs and alcohol in utero.” Poyson further
POYSON V. RYAN 39

alleged that he was prejudiced by counsel’s deficient

performance:

Their failure to adequately investigate and

substantiate [evidence that Petitioner was

exposed to drugs and alcohol in utero]

profoundly prejudiced Petitioner. Adequate

explanation during the pre-sentence hearing of

the effect of FASD on Petitioner’s brain

would likely have convinced the trial court

that Petitioner had a lesser degree of

culpability.

3. Analysis

The district court concluded that the claim raised in the

federal petition had not been fairly presented to the Arizona

courts:

This Court concludes that the claim asserted

in the instant amended petition is

fundamentally different than that presented in

state court. Petitioner’s argument in support

of [this claim] is based entirely on trial

counsel’s alleged failure to investigate and

develop mitigation evidence based on

Petitioner’s in utero exposure to drugs and

alcohol. This version of Petitioner’s

sentencing [ineffective assistance of counsel]

claim has never been presented to the Arizona

courts. While it is true that new factual

allegations do not ordinarily render a claim

unexhausted, a petitioner may not

“fundamentally alter the legal claim already
40 POYSON V. RYAN

considered by the state courts.” Beaty v.

Stewart, 303 F.3d 975, 989–90 ([9th Cir.]

2002) (citing Vasquez, 474 U.S. at 260). To

do so deprives the state court of “a meaningful

opportunity to consider allegations of legal

error without interference from the federal

judiciary.” Vasquez, 474 U.S. at 257. Here,

Petitioner is not simply proffering additional

evidentiary support for a factual theory

presented to the state court. Rather, he is

alleging an entirely new theory of counsel

ineffectiveness; one that has not previously

been presented in state court.

We agree. Poyson presented not only new facts in

support of a claim presented to the state court, but also a

fundamentally new theory of counsel’s ineffectiveness – one

that the Arizona courts lacked “a meaningful opportunity to

consider.” Vasquez, 474 U.S. at 257. The district court

therefore properly dismissed Poyson’s penalty phase

ineffective assistance of counsel claim as procedurally

defaulted.

AFFIRMED.
POYSON V. RYAN 41

THOMAS, Circuit Judge, concurring in part and dissenting

in part:

The Arizona Supreme Court unconstitutionally excluded

mitigating evidence from its consideration because the

evidence was not causally related to the crimes. As a result,

Poyson was deprived of his right to an individualized capital

sentencing determination under the Eighth and Fourteenth

Amendments. Penry v. Lynaugh (Penry I), 492 U.S. 302, 317

(1989), abrogated on other grounds by Atkins v. Virginia,

536 U.S. 304 (2002); Eddings v. Oklahoma, 455 U.S. 104,

110–12 (1982); Lockett v. Ohio, 438 U.S. 586, 604–05

(1978). Because the majority’s contraryconclusion cannot be

reconciled with controlling Supreme Court precedent, I

respectfully dissent.

I

“[I]n capital cases the fundamental respect for humanity

underlying the Eighth Amendment . . . requires consideration

of the character and record of the individual offender and the

circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of

death.” Lockett, 438 U.S. at 604 (alteration in original)

(quoting Woodson v. North Carolina, 428 U.S. 280, 304

(1976)). Accordingly, the Supreme Court has held since

1978 that a defendant facing a capital sentence must have the

opportunity to present all relevant evidence in mitigation. 

See id. at 604–05. Merely admitting the evidence at the

penalty phase does not satisfy the constitutional mandate. 

Rather, to ensure that a sentence of death reflects “a reasoned

moral response to a defendant’s background, character, and

crime,” Penry I, 492 U.S. at 328 (emphasis in original)

(quoting Franklin v. Lynaugh, 487 U.S. 164, 184 (1988)
42 POYSON V. RYAN

(O’Connor, J., concurring in the judgment)), the procedure

for evaluating mitigating evidence must ensure that the

sentencer is “able to consider and give effect to that evidence

in imposing sentence,” id. at 319 (emphasis added) (citing

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

455 U.S. at 113–14. A sentencer “give[s] effect to”

mitigating evidence byweighing all such admissible evidence

against any aggravating circumstances proven by the state. 

See, e.g., Eddings, 455 U.S. at 114–15; Towery v. Ryan,

673 F.3d 933, 944–45 (9th Cir. 2012). Only by viewing all

sentencing evidence in context can a court render the

individualized determination of moral culpability that the

Constitution requires. See Lambright v. Schriro, 490 F.3d

1103, 1115 (9th Cir. 2007) (per curiam).

A court violates the constitutional command by

categorically screening out certain mitigating evidence as a

matter of law, before it may be weighed in combination with

all other relevant sentencing evidence. Tennard v. Dretke,

542 U.S. 274, 284–86 (2004); Eddings, 455 U.S. at 113–14

(holding that the sentencer may not “refuse to consider, as a

matter of law, any relevant mitigating evidence”) (emphasis

in original). Relevance is the only prerequisite to full

consideration of mitigating evidence. See Tennard, 542 U.S.

at 284–85. While the state court may assign a relative weight

to each item of admissible mitigating evidence, Towery,

673 F.3d at 944, it cannot impose any additional criteria, such

as a causal nexus requirement, to screen such evidence from

the sentencer’s ultimate view of the defendant. A sentencing

procedure that automatically assigns a “weight” of zero to

any mitigating evidence lacking a causal nexus to the crime

is indistinguishable from an analytical “screen” that excludes

such evidence from consideration as a matter of law. Thus,

regardless of what label it bears, such a “weighing” procedure
POYSON V. RYAN 43

plainly violates Eddings. Simply altering the label attached

to an unconstitutional process does not magically render it

constitutional.

At the time it decided this case, the Arizona Supreme

Court applied a causal nexus test similar to the one the U.S.

Supreme Court held unconstitutional in Tennard. See, e.g.,

State v. Sansing, 77 P.3d 30, 37 (Ariz. 2003) (“Mere evidence

of drug ingestion or intoxication, however, is insufficient to

establish statutory mitigation. The defendant must also prove

a causal nexus between his drug use and the offense.”)

(footnote omitted); State v. Cañez, 42 P.3d 564, 594 (Ariz.

2002) (en banc) (citation omitted) (“[A] causal nexus between

the intoxication and the offense is required to establish

non-statutory impairment mitigation”); 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 crime itself” for such

evidence to be considered a mitigating factor); State v.

Clabourne, 983 P.2d 748, 756 (Ariz. 1999) (en banc)

(defendant’s difficult childhood not a mitigating factor

because “he has failed to link his family background to his

murderous conduct or to otherwise show how it affected his

behavior”); State v. Djerf, 959 P.2d 1274, 1289 (Ariz. 1998)

(en banc) (defendant’s experience of childhood abuse cannot

be considered as a mitigating factor unless there is a causal

connection between the abuse and the crime); State v. Jones,

937 P.2d 310, 322 (Ariz. 1997) (defendant did not establish

impaired capacity as either a statutory or non-statutory

mitigating factor because “no testimony establishes, either

because of his use of drugs or because he was coming down

off of the drugs, that defendant could not appreciate the

wrongfulness of his conduct or conform his conduct to the

law”); State v. Wallace, 773 P.2d 983, 986 (Ariz. 1989) (en
44 POYSON V. RYAN

banc) (“A difficult family background, in and of itself, is not

a mitigating circumstance.”).

Arizona’s causal nexus test not only violated Eddings, but

a long line of Supreme Court cases holding that all relevant

mitigating evidence must be considered in capital sentencing. 

These cases establish that evidence of a defendant’s

background and character, including childhood trauma or

mental health problems, is relevant in mitigation even if it

does nothing to explain why the defendant committed the

crime of conviction. See Penry I, 492 U.S. at 322–23;

Lockett, 438 U.S. at 604. See also Lambright, 490 F.3d at

1115. Such evidence may reasonably diminish the

defendant’s moral culpability, see Penry I, 492 U.S. at

322–23, and “might cause a sentencer to determine that a life

sentence, rather than death at the hands of the state, is the

appropriate punishment for the particular defendant,” 

Lambright, 490 F.3d at 1115. Placing such evidence beyond

the sentencer’s effective reach is “simply unacceptable in any

capital proceeding,” id. (citing Lockett, 438 U.S. at 605),

because it deprives the sentencer of the complete,

multifaceted rendering of the defendant that must be the basis

for capital sentencing.

Arizona’s unconstitutional causal nexus test remained in

force until Tennard, and it was in use when the Arizona

Supreme Court considered Poyson’s appeal.

II

In reviewing pre-Tennard Arizona capital cases, we do

not presume that the Arizona Supreme Court

unconstitutionally refused to consider relevant mitigating

evidence in its re-weighing of aggravating and mitigating
POYSON V. RYAN 45

factors.1 Rather, we examine the record to determine whether

the Arizona SupremeCourt applied an unconstitutional causal

nexus test to screen mitigating evidence from consideration

in a particular case. In Schad v. Ryan, we affirmed the denial

of habeas relief when the record contained “no indication that

the state courts applied a nexus test, either as a method of

assessing the weight of the mitigating evidence, or as an

unconstitutional screening mechanism . . . .” 671 F.3d 708,

724 (9th Cir. 2009) (per curiam). In doing so, Schad was

consistent with the Supreme Court’s instruction that

“[f]ederal courts are not free to presume that a state court did

not comply with constitutional dictates on the basis of

nothing more than a lack of citation.” Bell v. Cone, 543 U.S.

447, 455 (2005) (per curiam) (citations omitted).

Similarly, in Towery, we rejected the defendant’s claim

that the Arizona Supreme Court unconstitutionally screened

mitigating evidence that lacked a causal nexus to the crime. 

673 F.3d at 944. We stressed that the state supreme court had

articulated the proper standard for considering mitigating

evidence. See id. In independently reviewing Towery’s

mitigating evidence, the state court recognized that, “[h]aving

considered family background during the penalty phase, the

sentencer must give the evidence such weight that the

sentence reflects a ‘reasoned moral response’ to the

1 Contrary to the majority’s suggestion, Poyson does not ask us to

presume that, because the Arizona courts frequently applied an

unconstitutional causal nexus test at the time of his sentencing, the state

court did so in his case. Rather, the Arizona courts’ routine—if not

perfectlyconsistent—practice of unconstitutional capitalsentencingbefore

Tennard provides probative evidence that the state court in Poyson’s case

committed the same error. To consider that evidence, which is plainly

material to Poyson’s claim, is not to apply an impermissible presumption

that the state court erred here.
46 POYSON V. RYAN

evidence.” Id. (alteration in original) (quoting State v.

Towery (Towery I), 920 P.2d 290, 311 (Ariz. 1996)). In light

of the whole record, this statement demonstrated the Arizona

Supreme Court’s awareness that it must weigh all relevant

mitigating evidence against the aggravating circumstances,

even if it ultimately assigned relatively little weight to that

mitigating evidence which lacked a strong causal link to the

crime. See id. at 944–45.

In contrast, in Styers v. Schriro, 547 F.3d 1026 (9th Cir.

2008), we looked beyond the Arizona Supreme Court’s

characterization of its own reasoning where the form of its

analysis evidenced unconstitutional screening. See id. at

1035 (“In conducting its independent review of the propriety

of Styers’ death sentence, the Arizona Supreme Court stated

that it had ‘considered all of the proffered mitigation’. . .

However, its analysis prior to this statement indicates

otherwise.”) (internal citation omitted). Though the state

court claimed that it “considered” all mitigating evidence, its

analysis showed that it impermissibly screened Styers’

mitigating mental health evidence solely because it lacked a

causal nexus to the crime. Declining to elevate form over

substance, we granted the writ upon concluding that “the

Arizona Supreme court appears to have imposed a test

directly contrary to the constitutional requirement that all

relevant mitigating evidence be considered by the sentencing

body.” Id. (emphasis added) (citing Smith v. Texas, 543 U.S.

37, 45 (2004)).

Recently, in Lopez v. Ryan, 630 F.3d 1198 (9th Cir.

2011), we declined to presume from Arizona case law alone

that “a tacit causation rule underpinned the state court’s

decision” in the case at hand. Id. at 1203. Rather than

“infer[ring] unconstitutional reasoning from judicial silence,”
POYSON V. RYAN 47

Lopez instructs that we should “look to what the record

actually says.” Id. at 1204 (citing Schad, 606 F.3d at

1046–47).

The import of all these cases is that we should not

presume any constitutional error from a silent record, nor

should we accept without further examination a state court’s

characterizations of its own reasoning. Rather, we should

look to the substance of the record itself to determine whether

the state court unconstitutionally excluded relevantmitigating

evidence from consideration at sentencing.

Though it insists otherwise, the majority treats the

statement in Schad that relief should be denied “[a]bsent a

clear indication in the record that the state court applied the

wrong standard” to create a new, more stringent test for

determining whether a state court applied an unconstitutional

causal nexus analysis. 671 F.3d at 724. The majority then

applies this “test” to resolve purported ambiguities in the

record in the state’s favor.

However, in stating that we should identify “a clear

indication in the record” that the state court violated Tennard

before granting habeas relief, the Schad panel was merely

explaining Bell’s rule against presuming error from a silent

record. No Supreme Court case imposes a “clear indication”

test, nor does any case impose a rule that we must resolve

ambiguities against the petitioner. To the contrary, as Justice

O’Connor wrote in her Eddings concurrence, the qualitatively

different nature of a death sentence requires reviewing courts

“to remove any legitimate basis for finding ambiguity

concerning the factors actually considered by the trial court.” 

455 U.S. at 119 (O’Connor, J., concurring). In short, if there

is any legitimate reason to believe that a court has excluded
48 POYSON V. RYAN

mitigating evidence from consideration, we should grant

habeas relief so that a proper weighing of aggravating and

mitigating factors can occur. The appropriate approach, taken

in our more recent cases, is simply to evaluate “what the

record actually says.” 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 nexus test, either as a method of

assessing the weight of the mitigating evidence, or as an

unconstitutional screening mechanism . . . ,” 671 F.3d at 724

(emphasis added), the case simply does not address what a

“clear indication” of unconstitutional causal nexus screening

looks like, nor the relationship between the purported “clear

indication” requirement and the statutorystandards governing

habeas review. Thus, even assuming that a “clear indication”

of unconstitutional causal nexus screening is in fact an

2 Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam), is not to the

contrary. There, the Supreme Court simply rejected our reading of the

state court’s opinion; it did not instruct us to deny habeas relief whenever

the state court fails to provide a “clear indication” of constitutional error. 

See id. at 24. While acknowledging that certain language in the state

court’s opinion could be read as misstating the Strickland standard, the

Woodford Court faulted us for rejecting other, stronger evidence in the

opinion indicating that the state court applied the correct standard. See id.

If anything, Woodford supports a close reading of state court decisions on

habeas review to determine whether they contravene or unreasonably

apply federal law. See id. at 23–24. As Woodford itself demonstrates, this

approach does not offend “the presumption that state courts know and

follow the law.” Id. at 24 (citations omitted). Moreover, to the extent the

majority finds the Arizona Supreme Court’s opinion in this case

ambiguous on the causal nexus issue, Woodford is of little help, as it

simply does not address the analysis of an ambiguous state court decision

on habeas review. See id. at 23 (asserting that the state court opinion at

issue “painstakingly describes the [correct] Strickland standard”).
POYSON V. RYAN 49

independent prerequisite to granting habeas relief, Schad

entirely fails to support the majority’s proposition that a

“clear indication” can exist only in the absence of any

ambiguity in the state court’s analysis. The notion that a

habeas petitioner can secure relief only by conclusively

establishing the absence of any ambiguity in the state court

record is patently inconsistent with the preponderance

standard that defines the petitioner’s burden.3 Assuming that

we and the district court faithfully apply the statutory

standard for granting a certificate of appealability, we should

3 The majority insists that, under its reasoning, Poyson need not prove

the absence of any meaningful ambiguity in the state court record to

secure relief. Rather, the majority asserts that Poyson’s claim must fail

because the record in this case “is insolubly ambiguous.” Maj. Op. 30. 

Thus, we now have new categories of ambiguity: ambiguous,

meaningfully ambiguous, and insoluably ambiguous. Not only are these

labels distinctions without difference, these new tests are not to be found

in any Supreme Court jurisprudence, which governs our considerations of

AEDPA cases, nor our own. The majority does not cite a single case in

which we have rejected a prisoner’s habeas claim because we simply

could not figure out what the state court had said. Instead, it relies on

decisions denying relief because the record—ambiguous as it might have

been—ultimately showed that the state court employed a causal nexustest

as a permissible weighing mechanism or did not rely on causal nexus

analysis at all. Maj. Op. 26–27 (citing Towery, 673 F.3d at 945; Schad,

671 F.3d at 724; Lopez, 630 F.3d at 1203–04). To the extent the majority

suggests that the state court decision at issue in this case is unprecedented

in the extent of its ambiguity, that proposition is belied by the state court

decision in Styers, which, as explained below, employed strikingly similar

language yet was sufficiently comprehensible to support habeas relief. Of

course, Poyson bears the burden of proof, but there is no authority for the

proposition that we may throw up our hands and declare the record too

ambiguous to definitively interpret one way or the other. The majority

fails to recognize that the preponderance standard, by definition, permits

the party bearing the burden to proof to prevail without establishing his

position beyond reasonable doubt. The effect of the majority rule is to

alter the burden of proof, and it flatly contracts our analysis in Styers.
50 POYSON V. RYAN

only have the opportunity to review claims as to which the

record is somewhat ambiguous. See Shackleford v. Hubbard,

234 F.3d 1072, 1081 (9th 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 could debate whether . . . the petition

should have been resolved in a different manner . . . .’”). To

secure relief, the petitioner need not show that there is no

conceivable ambiguity in the record that could support the

state’s position; rather, he must persuade us that his evidence

that the state court’s decision was contrary to clearly

established federal law is stronger than the state’s.

III

I disagree with the majority’s conclusion that the state

court’s decision is simply too ambiguous to permit

meaningful habeas review. Rather, when we examine “what

the record actually says,” Lopez, 630 F.3d at 1204 (citation

omitted), the Arizona Supreme Court’s use of an

unconstitutional causal nexus test to screen Poyson’s

mitigating evidence of mental health problems and childhood

abuse is readily apparent.4

The Arizona Supreme Court’s analysis in this case is

substantially indistinguishable from its decision in Styers, in

which we found sufficient evidence of a constitutional

violation to grant habeas relief. In Styers, the Arizona

Supreme Court listed each item of proffered mitigation

4

I agree with the majority that the Arizona Supreme Court did not

violate Eddings in rejecting Poyson’s evidence of substance abuse as a

mitigating factor, as it found that he failed to establish a significant history

of substance abuse as a matter of fact.
POYSON V. RYAN 51

evidence: First, it noted that “Defendant had no prior

convictions for either misdemeanors or felonyoffense[s]” and

stated that “[t]his is relevant mitigating evidence.” State v.

Styers, 865 P.2d at 777 (citation omitted). Next, it stated that

“Defendant’s service in Vietnam and honorable discharge are

also relevant mitigating circumstances.” Id. (citation

omitted). Then, the court noted that “Defendant also suffered

from post-traumatic stress disorder prior to and around the

time of the murder as a result of his combat service in

Vietnam.” Id. The court said that “[t]his could also, in an

appropriate circumstance, constitute mitigation. However,

two doctors who examined defendant could not connect

defendant’s condition to his behavior at the time of the

conspiracy and murder.” Id. (internal citation omitted). The

state court did not recite a comprehensive list of the

mitigating factors it considered in its independent review of

Styers’ death sentence; thus, it did not clarify whether Styers’

post-traumatic stress disorder would in fact “constitute

mitigation.” Instead, the court asserted that “[w]e have

considered all of the proffered mitigation and, like the trial

court, find it is not sufficiently substantial to warrant

leniency.” Id. at 777.

On habeas review, we relied on this analysis to find that

the state court violated Styers’ right to an individualized

capital sentencing under Eddings and Smith, notwithstanding

its claim to have considered all of Styers’ proffered

mitigating evidence. Styers, 547 F.3d at 1035. Though the

state court acknowledged that evidence of post-traumatic

stress disorder is, as a general matter, relevant in mitigation,

we found that its “use of the conjunctive adverb ‘however,’

following its acknowledgment that such evidence ‘could’ in

certain cases constitute mitigation, indicates that this was not

such a case.” Id. In the context of its entire analysis, this turn
52 POYSON V. RYAN

of phrase revealed that the state court had applied a causal

nexus test “directly contrary to the constitutional requirement

that all relevant mitigating evidence be considered by the

sentencing body.” Id. We reaffirmed this interpretation in

Schad, describing Styers as a case in which the state court

“expressly disregarded” mitigating psychiatric evidence due

to the defendant’s “failure to demonstrate a causal connection

between the disorder and the crime.” Schad, 671 F.3d 708,

724 (9th Cir. 2009) (emphasis added).

Upon close examination, the state court’s analysis in

Poyson’s case is strikingly similar to that in Styers. With

respect to Poyson’s mental health evidence, the Arizona

Supreme Court acknowledged that Poyson “suffers from

‘certain personality disorders’” and did not question that

evidence of such disorders is relevant in mitigation. State v.

Poyson, 7 P.3d at 90. It then stated, echoing its reasoning in

Styers: “[h]owever, we find no indication in the record that

‘the disorder controlled [his] conduct or impaired his mental

capacity to such a degree that leniency is required.’” Id. at

90–91 (quoting State v. Brewer, 826 P.2d 783, 802 (Ariz.

1992)). It therefore accorded Poyson’s evidence of mental

health problems “no mitigating weight.” Id. at 91. Similarly,

the state court acknowledged that Poyson was physically,

mentally, and sexually abused as a child. Id. It then stated: 

“however, defendant did not show that his traumatic

childhood somehow rendered him unable to control his

conduct. Thus, the evidence is without mitigating value.” 

Id.

5

 

5

 Though we review the Arizona Supreme Court’s opinion in this case,

the sentencing court’s analysis is relevant to the extent that the state

supreme court generally adopted its reasoning. Without a doubt, the

sentencing court’s discussion of Poyson’s proffered mitigating evidence
POYSON V. RYAN 53

If anything, the state court provided more evidence of

unconstitutional causal nexus screening in Poyson’s case than

it did in Styers’. For at the end of its opinion, the state court

listed all of the mitigating circumstances it considered in its

independent review of Poyson’s death sentence. Id. It

omitted from this critical tally both Poyson’s personality

disorders and his abusive childhood. See id. (listing only

“cooperation with law enforcement, age, potential for

rehabilitation, and family support” as mitigating evidence in

the case); see also Maj. Op. 21–22 (acknowledging that the

state court found—and weighed—only one statutory

mitigating factor (age) and three nonstatutory mitigating

factors (cooperation with law enforcement, potential for

rehabilitation, and family support)).

Bell forbids our presuming constitutional error based on

a silent record. However, like the panel that granted the writ

in Styers, we are not bound to accept a state court’s

characterization of its own analysis when its reasoning

reveals a deprivation of constitutional rights in violation of

clearly established law. This is particularly true when the

lends greater force to his Penry claim. For example, the sentencing court

accepted that Poyson suffers frompersonality disorders, yet the sentencing

judge concluded that this evidence did not “rise to the level of being a

mitigating factor because I am unable to draw any connection whatsoever

with such personality disorders and the commission of these offenses.”

(emphasis added). To the extent that the court excluded the evidence on

the ground that Poyson’s mental health problems were not sufficiently

severe, it erred. Evidence of mental health problems is relevant in

mitigation, and a defendant need not show that such problems rise to a

specified level of severity to establish their relevance. See Tennard,

542 U.S. at 284–85. The sentencing court improperly rejected Poyson’s

personality disorders as mitigating evidence because of the lack of causal

connection between those disorders and the murders at issue.
54 POYSON V. RYAN

result of the state court’s error is to deprive a human being of

his life.

The Eighth and Fourteenth Amendments prohibit state

courts from screening mitigating evidence from full

consideration based on a lack of causal nexus to the crime of

conviction. In reviewing Poyson’s sentence, however, the

Arizona Supreme Court applied a formula that automatically

assigned a “weight” or “value” of zero to all mitigating

evidence that lacked a causal nexus to the crime. Most

significantly, this total devaluation of Poyson’s mitigating

evidence occurred logically prior to the state court’s

balancing of aggravating and mitigating circumstances. See

State v. Poyson, 7 P.3d at 90–91. As such, the Arizona

Supreme Court failed to “consider all relevant mitigating

evidence and weigh it against the evidence of the aggravating

circumstances,” Eddings, 455 U.S. at 117 (emphasis added),

which prevented Poyson from presenting the totality of his

individualized circumstances to the court exercising authority

to condemn him to death. The “consideration” of Poyson’s

mitigating evidence was without meaning where the court

discarded that evidence before the critical stage of its

analysis—the final balancing of mitigating and aggravating

circumstances that determined his sentence. To label the

process “weighing” does not make it so; screening by any

other name is still screening.

The Arizona Supreme Court did not consider mitigating

evidence offered by Poyson because it lacked a causal nexus

to the crime. In doing so, it committed Eddings error. 

Remand is required.

I respectfully dissent, in part.