               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAMES LYNN STYERS,                       No. 12-16952
             Petitioner-Appellant,
                                           D.C. No.
                v.                      2:98-cv-02244-
                                             JAT
CHARLES L. RYAN,
             Respondent-Appellee.          OPINION


     Appeal from the United States District Court
              for the District of Arizona
  James A. Teilborg, Senior District Judge, Presiding

               Argued and Submitted
     October 24, 2013—San Francisco California

              Filed December 30, 2015

        Before: Jerome Farris, Alex Kozinski,
         and Carlos T. Bea, Circuit Judges.

                Opinion by Judge Bea
2                        STYERS V. RYAN

                           SUMMARY*


                          Habeas Corpus

     The panel affirmed the district court’s denial of James
Lynn Styers’s motion for an unconditional writ of habeas
corpus after the Arizona Supreme Court, in response to the
district court’s conditional writ ordered by this court in Styers
v. Schriro, 547 F.3d 1028 (9th Cir. 2008), conducted an
independent review of Styers’s death sentence, and affirmed
it in 2011.

   In Styers, this court held that when the Arizona Supreme
Court initially affirmed the death sentence in 1993, it violated
Eddings v. Oklahoma, 455 U.S. 104 (1982), and Smith v.
Texas, 453 U.S. 37 (2004), which prohibit consideration of
only mitigation evidence causally related to the crime.

    Styers argued in his petition for the unconditional writ
that, after the U.S. Supreme Court’s decision in Ring v.
Arizona, 536 U.S. 584 (2002), the Arizona Supreme Court
was powerless to correct the constitutional error identified in
Styers, and that the death sentence could now be imposed
only by a jury’s determination of the aggravating factors.
The Arizona Supreme Court denied the Ring claim on the
ground that the sentence was final.

   The panel observed that the U.S. Supreme Court has
never held that the issuance of a conditional writ of habeas
corpus necessarily renders non-final a conviction or sentence

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

that was predicated on constitutional error, and that the
conditional writ in this case did not vacate Styers’s death
sentence. The panel concluded that the Arizona Supreme
Court’s determination that Styers’s sentence remained final
at the time of the second independent review was therefore
not contrary to federal law as determined by the U.S.
Supreme Court.

     The panel rejected Styers’s contention that the Arizona
Supreme Court failed to correct the error found by this court
in Styers. The panel observed that the Arizona Supreme
Court considered the mitigating evidence and decided to give
it little weight, and that neither Tennard v. Dretke, 542 U.S.
274 (2004), nor Eddings requires more.


                        COUNSEL

Julie S. Hall (argued), Oracle, Arizona; Amy Beth Krauss,
Tucson, Arizona, for Petitioner-Appellant.

Jeffrey A. Zick (argued), Thomas C. Horne, Kent E. Cattani,
and Ginger Jarvis, Office of the Attorney General, Phoenix,
Arizona, for Respondent-Appellee.


                         OPINION

BEA, Circuit Judge:

    We must determine whether a state court’s constitutional
error in failing to consider certain evidence offered in
mitigation of a death sentence can be corrected by the court
4                      STYERS V. RYAN

that committed the error, rather than require the convicted
murderer to be sentenced anew, but before a jury.

     James Lynn Styers, an Arizona prisoner, was convicted of
first degree murder and other charges and sentenced to death.
Styers’s first degree murder conviction and his sentence of
death were affirmed by the Arizona Supreme Court. State v.
Styers, 865 P.2d 765, 770 (Ariz. 1993) (“Styers I”). Styers
sought federal habeas corpus, and was denied. On appeal to
us, we found that the Arizona Supreme Court had erred in not
considering certain mitigation evidence, because it found
such evidence was not connected to Styers’s actions at the
time of the murder. Styers v. Schriro, 547 F.3d 1026, 1028
(9th Cir. 2008) (“Styers II”). We reversed and remanded to
the district court with instructions to issue a conditional writ
ordering Styers’s release from his death sentence unless the
State were to initiate proceedings either to correct the
constitutional error or to vacate the death sentence and
impose a lesser sentence consistent with the law. Id. at 1036.
The district court so ordered.

    The Arizona Supreme Court conducted an independent
review of Styers’s death sentence pursuant to its view of the
Arizona statute which provides for independent reviews of all
death sentences, A.R.S. § 13-755. State v. Styers, 254 P.3d
1132, 1133 (Ariz. 2011) (en banc) (“Styers III”). It again
affirmed the death sentence, after expressly considering and
weighing the mitigation evidence to which this court’s
opinion referred. Styers then moved the district court for an
unconditional writ of habeas corpus, arguing that the Arizona
Supreme Court was powerless to correct the constitutional
error, because the law had changed since Styers I; the death
sentence could be imposed only by a jury’s determination of
the aggravating factors that rendered Styers eligible for the
                            STYERS V. RYAN                            5

death penalty. Ring v. Arizona, 536 U.S. 584 (2002). The
district court denied Styers’s petition for an unconditional
writ. Styers timely appealed.

      We review de novo, and we affirm.

                 I. Facts and Procedural History

    In 1989, Styers lived in an apartment with his daughter,
a roommate, Styers’s co-defendant Debra Milke,1 and Debra
Milke’s four-year-old son, Christopher. Styers provided
childcare for Christopher while Milke was at work. On
December 2, 1989, Styers borrowed Milke’s car to go to the
mall. Christopher wanted to see Santa Claus and joined
Styers. On the way to the mall, Styers picked up his friend
Roger Scott. Scott, Styers, and Christopher had pizza for
lunch and then drove to the desert. The men told Christopher
that they were going to look for snakes in the wash.2 They
then shot him three times in the head, leaving his body in the
wash. State v. Styers, 865 P.2d 765, 769 (Ariz. 1993)
(“Styers I”).

    A jury convicted Styers of first degree murder, conspiracy
to commit first degree murder, child abuse, and kidnapping.
Id. At sentencing, without a jury, the trial court found three
statutory aggravating factors that rendered Styers eligible for
the death penalty. Along with mitigating evidence as to
Styers’s family relationships, military service, and character,


 1
   Milke and Roger Scott were also convicted of first degree murder for
the murder of Christopher Milke. Milke’s conviction has been vacated for
reasons not relevant to this case.
 2
     A wash is a dry channel in the desert.
6                      STYERS V. RYAN

Styers submitted evidence of mental health problems
including post-traumatic stress disorder (“PTSD”) caused by
Styers’s military service. The trial court found no mitigating
factors sufficiently substantial to call for leniency. The trial
court imposed the death penalty. Id.

    Styers appealed his convictions and sentence to the
Arizona Supreme Court. The Arizona Supreme Court
reversed Styers’s child abuse conviction for insufficiency of
evidence and affirmed Styers’s first degree murder,
conspiracy, and kidnapping convictions and the death penalty
sentence. Id. at 772, 778.

    Styers filed a federal habeas petition in the district court,
challenging his conviction and sentence on various grounds.
The district court denied Styers’s petition, and Styers
appealed to this court. Styers v. Schriro, 547 F.3d 1026, 1028
(9th Cir. 2008) (“Styers II”). This court affirmed the district
court in part, and reversed and remanded in part because
when the Arizona Supreme Court conducted its 1993
independent review of Styers’s death sentence, that court
“appear[ed] to have imposed a test directly contrary to the
constitutional requirement that all relevant mitigating
evidence be considered by the sentencing body” when it
found that Styers’s PTSD did not qualify as mitigating
evidence because it had not affected his actions at the time of
the crime. Id. at 1035. Specifically, this court found that the
Arizona Supreme Court violated Eddings v. Oklahoma,
455 U.S. 104 (1982) and Smith v. Texas, 453 U.S. 37 (2004),
which prohibit consideration of only mitigation evidence
causally related to the crime. On remand, the district court
entered an order directing that
                            STYERS V. RYAN                            7

           Petitioner’s Writ of Habeas Corpus as to his
           sentence of death is granted unless the State of
           Arizona, within 120 days from entry of this
           Judgment, initiates proceedings either to
           correct the constitutional error in Petitioner’s
           death sentence or to vacate the sentence and
           impose a lesser sentence consistent with the
           law.3

The State then moved the Arizona Supreme Court to “remedy
its initial independent review of Styers’ death sentence by
conducting a new independent review and considering Styers’
PTSD as a mitigating circumstance.” State v. Styers,
254 P.3d 1132, 1133 (Ariz. 2011) (en banc) (“Styers III”).
Styers objected to the procedure, arguing that by again
conducting an independent review under A.R.S. § 13-755, the
Arizona Supreme Court had reopened Styers’s case on direct
review and Styers’s sentence was no longer final.4 Id. at


  3
   In the same order, the district court denied a motion by the State to
remand the case to the Arizona Supreme Court for reweighing pursuant to
Clemons v. Mississippi, 494 U.S. 738 (1990).
 4
      A.R.S. § 13-755 provides:

           (A) The supreme court shall review all death sentences.
           On review, the supreme court shall independently
           review the trial court's findings of aggravation and
           mitigation and the propriety of the death sentence.
           (B) If the supreme court determines that an error was
           made regarding a finding of aggravation or mitigation,
           the supreme court shall independently determine if the
           mitigation the supreme court finds is sufficiently
           substantial to warrant leniency in light of the existing
           aggravation. If the supreme court finds that the
           mitigation is not sufficiently substantial to warrant
8                       STYERS V. RYAN

1134. Under Teague v. Lane, 489 U.S. 288 (1989), if Styers’s
sentence was not final when the Arizona Supreme Court
conducted its second independent review, Styers would be
entitled to all constitutional rules which had been announced
at the time of Styers III. These rules would include the
requirement of Ring v. Arizona, 536 U.S. 584 (2002), that
defendants are entitled to a jury determination of any fact on
which their eligibility for the death penalty is conditioned.

    The Arizona Supreme Court granted the State’s motion,
holding that (1) the Arizona Supreme Court was not required
to remand the case to the trial court for a new resentencing,
and that (2) even if Styers’s sentence was not final, Ring
requires jury findings only of aggravating factors, and the
aggravating factors in Styers’s case were not at issue in
determining the weight of the mitigating evidence. Styers III,
254 P.3d at 1133–34.

    The Arizona Supreme Court did not review its prior
Eddings error for harmlessness. Instead, the court reviewed
anew whether the mitigation evidence was sufficiently
substantial to warrant leniency when weighed against the
aggravating factors found by the trial court. Id. at 1135. On
its review of the PTSD evidence, the court opined that


       leniency, the supreme court shall affirm the death
       sentence. If the supreme court finds that the mitigation
       is sufficiently substantial to warrant leniency, the
       supreme court shall impose a life sentence pursuant to
       § 13-751, subsection A. (C) The independent review
       required by subsection A does not preclude the supreme
       court from remanding a case for further action if the
       trial court erroneously excluded evidence or if the
       appellate record does not adequately reflect the
       evidence presented.
                      STYERS V. RYAN                        9

because Styers had produced no evidence establishing a
causal connection between his PTSD and the crime, the
PTSD evidence was of little weight. Id. at 1136. The
Arizona Supreme Court affirmed Styers’s sentence of death.
Id.

    Styers then moved the federal district court to enter
judgment granting an unconditional writ of habeas corpus on
the basis that the state had not complied with the conditional
writ of habeas corpus because (1) the constitutional error
could not be corrected without resentencing by a jury; (2) the
Arizona Supreme Court employed an unconstitutional process
in its attempt to cure the constitutional error; and (3) the
Arizona Supreme Court failed to correct the constitutional
error because it did not properly consider Styers’s mitigation
evidence. The district court denied the motion for habeas
relief because

       [t]he conditional writ of habeas corpus entered
       in [Styers’s] case gave the State the
       opportunity to cure the constitutional defect
       found by the Ninth Circuit. At the request of
       the State, the Arizona Supreme Court
       undertook a new independent review of
       [Styers’s] capital sentence, reweighing the
       proven aggravating and mitigating
       circumstances.         This remedied the
       constitutional infirmity found in Styers II and
       satisfied the condition precedent contained in
       the conditional writ.

Styers moved the district court for a certificate of
appealability, and the district court granted a certificate of
appealability on the issue whether, in correcting Styers’s
10                     STYERS V. RYAN

sentence, the State was required to provide him a jury
resentencing. Styers timely appealed.

         II. Jurisdiction and Standard of Review

    The district court had jurisdiction pursuant to 28 U.S.C.
§ 2254, and we have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. We review de novo the district court’s
denial of the writ of habeas corpus. Harvest v. Castro,
531 F.3d 737, 741 (9th Cir. 2008). This court may reverse
the district court only if the state court ruling “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).

                        III. Analysis

     A. Certified Issue: Ring Sentencing

    When a constitutional rule is announced, its requirements
apply to defendants whose convictions or sentences are
pending on direct review or not otherwise final. Griffith v.
Kentucky, 479 U.S. 314, 323 (1987). The rule announced in
Ring, under which “[c]apital defendants are entitled . . . to a
jury determination of any fact on which the legislature
conditions an increase in their maximum punishment,” Ring,
536 U.S. at 589 is a procedural rule that applies to capital
defendants on direct review, see Schriro v. Summerlin,
542 U.S. 348, 358 (2004).

   Styers made a Ring claim before the Arizona Supreme
Court, arguing that the conditional writ of habeas corpus
required that Styers be re-sentenced and that a jury must find
                          STYERS V. RYAN                               11

the aggravating factors rendering him eligible for the death
penalty. The Arizona Supreme Court denied the Ring claim
on the ground that Styers’s sentence was final. To prevail,
Styers must show that the Arizona Supreme Court’s
determination that his conviction was final (and therefore that
he was not entitled to a Ring sentencing) “was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).

    The Arizona Supreme Court in Styers III rejected Styers’s
contention that the Arizona Supreme Court “must remand this
case to the trial court for a new resentencing proceeding
because this case is now on ‘direct review.’” Styers III,
254 P.3d at 1133. The court observed

         “a judgment of conviction has been rendered,
         the availability of appeal exhausted, and the
         time for a petition for certiorari elapsed or a
         petition for certiorari finally denied.”
         Because Styers had exhausted available
         appeals, his petition for certiorari had been
         denied, and the mandate had issued almost
         eight years before Ring was decided, his case
         was final, and he therefore is not entitled to
         have his case reconsidered in light of Ring.

Styers III, 254 P.3d at 1133–34 (citing Griffith, 479 U.S. at
328).5 The U.S. Supreme Court has never held that the


  5
    The Arizona Supreme Court further held that “nothing in § 13-755
limits our review to direct appeals. Instead, for murders committed before
August 2002, the statute imposes an obligation on this court to ‘review all
death sentences.’” Styers III, 254 P.3d at 1134 n.1. Our now colleague,
12                         STYERS V. RYAN

issuance of a conditional writ of habeas corpus necessarily
renders non-final a conviction or sentence that was predicated
on constitutional error, and the conditional writ of habeas
corpus in this case did not vacate Styers’s death sentence.
Therefore, the Arizona Supreme Court’s determination that
Styers’s sentence remained final at the time of the second
independent review was not contrary to federal law as
determined by the Supreme Court of the United States.6,7


then-Vice Chief Justice Hurwitz dissented and noted that “[t]he statute
mandating independent review of death sentences, A.R.S. § 13–755(A),
applies to direct review, not to post-conviction proceedings . . .
independent review is the paradigm of direct review—we determine, de
novo, whether the trial court, on the facts before it, properly sentenced the
defendant to death.” Styers III, 254 P.3d at 1147 (Hurwitz, V.C.J.,
dissenting). Styers urges this court to adopt Justice Hurwitz’s analysis.
However, the question whether an independent review under A.R.S. § 13-
755 is limited to direct review is a question of statutory interpretation of
an Arizona statute. Here that question was determined by Arizona’s
highest court, and it held that “nothing in § 13-755 limits our review to
direct appeals.” Styers III, 254 P.3d at 1134 n.1. We are constrained to
defer to the highest state court on a matter of state law and may not
construe A.R.S. § 13-755 differently than did the Arizona Supreme Court.
Johnson v. Fankell, 520 U.S. 911, 916 (1997).
  6
     The U.S. Supreme Court has been silent on whether the finality of a
conviction or sentence, for Teague purposes, is a question of federal law,
and has never held that a conditional writ of habeas corpus, regardless of
its terms, necessarily renders a conviction non-final. Alternatively, if the
question of finality is purely a matter of state law, then the Arizona
Supreme Court’s decision that Styers’s sentence remained final and he
was not entitled to a Ring re-sentencing is not reviewable because it rests
on an adequate and independent state ground. Coleman v. Thompson,
501 U.S. 722, 736–37 (1991).
 7
   The Arizona Supreme Court held in the alternative that “regardless of
what one calls the type of review we now undertake, Ring requires jury
findings only of aggravating factors that make a defendant eligible for the
                          STYERS V. RYAN                               13

    B. Uncertified Issue: The Arizona Supreme Court
       Corrected the Eddings Error

    Styers also contends that the Arizona Supreme Court
failed to correct the Eddings error found by this court in
Styers II because it treated Styers’s mitigation evidence as de
minimis.

    The U.S. Supreme Court has “never held that a specific
method for balancing mitigating and aggravating factors in a
capital sentencing proceeding is constitutionally required.”
Kansas v. Marsh, 548 U.S. 163, 175 (2006). Rather, the
Constitution prohibits considering exclusively only that
mitigation evidence that bears a relationship to the crime.
Tennard v. Dretke, 542 U.S. 274, 284–86 (2004).

   Here, when the Arizona Supreme Court conducted its
second independent review, it did not preclude consideration


death penalty.” Styers III, 254 P.3d at 1134. This reading of Ring is
directly contrary to our decision in Murdaugh v. Ryan, 724 F.3d 1104 (9th
Cir. 2013), and inconsistent with the Arizona Supreme Court’s own
opinion on remand in Ring, which held that “[b]ecause a trier of fact must
determine whether mitigating circumstances call for leniency, we will
affirm a capital sentence only if we conclude, beyond a reasonable doubt,
that no rational trier of fact would determine that the mitigating
circumstances were sufficiently substantial to call for leniency. If we
cannot reach that conclusion, we must find reversible error and remand the
case for resentencing.” State v. Ring, 65 P.3d 915, 946 (Ariz. 2003).
However, the Arizona Supreme Court’s alternative holding does not affect
its determination that its independent review per A.R.S. § 13-755 is not a
direct review. Because of the Arizona Supreme Court’s finding that
Styers’s sentence remained final after issuance of the conditional writ,
Ring does not apply, and so the Arizona Supreme Court’s conclusion that
Ring requires consideration only of aggravating factors does not affect the
outcome in this case.
14                        STYERS V. RYAN

of Styers’s PTSD, as it appeared to do in Styers I. There, the
Arizona Supreme Court held that PTSD could constitute
mitigating evidence in another case, but that it did not warrant
leniency because Styers’s PTSD was not causally related to
Christopher Milke’s murder. Styers II, 547 F.3d at 1035
(citing Styers I, 865 P. 3d at 777–78). In Styers III, the
Arizona Supreme Court found that Styers failed to present
evidence that his PTSD affected him at the time of the crime
and that his actions belied any claim that the disorder did
affect him. 254 P.3d at 1135–36. Based on this finding, the
Arizona Supreme Court considered the mitigating evidence
and decided to give it little weight.8 Neither Tennard,
542 U.S. at 285, nor Eddings, 455 U.S. at 113–15, requires
more.

                             Conclusion

    Styers has not shown that the Arizona Supreme Court
made a decision contrary to, or involving an unreasonable
application of, federal law as determined by the Supreme
Court of the United States when it deemed his sentence final,
refused to remand his case for a jury resentencing, and
instead conducted an independent review under its death
penalty statute. For these reasons, we AFFIRM.




 8
   To the extent that Styers argues that the determination that his PTSD
did not affect him at the time of the crime was an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding under 28 U.S.C. § 2254(d)(2), we decline to expand the
certificate of appleability.
