                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JAMES LYNN STYERS,                        No. 07-99003
             Petitioner-Appellant,
                                             D.C. No.
               v.
                                        CV-98-02244-PHX-
DORA B. SCHRIRO, Arizona                       EHC
Department of Corrections,
                                             OPINION
             Respondent-Appellee.
                                     
       Appeal from the United States District Court
                for the District of Arizona
        Earl H. Carroll, District Judge, Presiding

                 Argued and Submitted
          August 20, 2008—Pasadena, California

                  Filed October 23, 2008

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

                   Per Curiam Opinion




                          14855
                       STYERS v. SCHRIRO                  14859


                         COUNSEL

Cary Sandman of Waterfall Economidis, Caldwell, Hanshaw
& Villamana, Tucson, Arizona, and Amy Beth Krauss, Tuc-
son, Arizona, for the petitioner-appellant.

Terry Goddard, Attorney General, and Jeffrey A. Zick, Kent
Cattani and J.D. Nielsen, Assistant Attorney General of the
State of Arizona, Phoenix, Arizona, for the respondent-
appellee.


                          OPINION

PER CURIAM:

   James Lynn Styers, an Arizona state prisoner, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus
petition, challenging his conviction and death sentence for
conspiracy, first degree murder, and kidnaping. We affirm the
district court on all counts, except Styers’ claim that the Ari-
14860                      STYERS v. SCHRIRO
zona Supreme Court failed to fulfill its obligations under Cle-
mons v. Mississippi, 494 U.S. 738 (1990).

      FACTUAL AND PROCEDURAL BACKGROUND

   In early December 1989, Styers shot and killed the four-
year-old son of Debra Milke, the woman with whom he and
his daughter shared an apartment.1 A jury subsequently con-
victed him of first degree murder, conspiracy to commit first
degree murder, child abuse and kidnaping. With respect to the
murder count, the trial court found three statutory aggravating
factors and no mitigating factors sufficiently substantial to
call for leniency, and imposed the death penalty.

   After exhausting his direct appeals2 and state collateral
review, Styers petitioned for a writ of habeas corpus in federal
court, raising a number of constitutional claims regarding his
trial and sentencing proceedings. The district court denied his
petition, but granted a certificate of appealability as to Styers’
claim that he received ineffective assistance of counsel. We
expanded the certificate of appealability to include also
Styers’ claims that the Arizona Supreme Court failed ade-
quately to narrow a facially vague aggravating factor applied
in his case, and failed to fulfill its constitutional obligation,
under Clemons, to reweigh all aggravating and mitigating fac-
tors after striking one of the aggravating factors.

      JURISDICTION AND STANDARD OF REVIEW

   The district court had jurisdiction over Styers’ habeas peti-
tion under 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. § 1291.
  1
    For a more detailed discussion of the facts, see the Arizona Supreme
Court’s opinion in Styers’ direct appeal, State v. Styers, 177 Ariz. 104, 865
P.2d 765 (1993).
  2
    The child abuse conviction and sentence were vacated on direct appeal.
See Styers, 177 Ariz. at 117, 865 P.2d at 778. The remaining convictions
were affirmed. Ibid.
                            STYERS v. SCHRIRO                          14861
   Styers filed his § 2254 petition after the effective date of
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). Habeas relief is therefore available 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,” or “was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).

                             DISCUSSION

              I.   Ineffective Assistance of Counsel

   Styers contends that he received ineffective assistance of
trial counsel based on counsel’s failure to move to strike the
jury panel on the grounds of prejudicial pre-trial publicity.3

  A.     Pre-Trial Publicity

   The body of Christopher Milke was found by police in the
evening of Sunday, December 3, 1989. The following day, the
Arizona Republic, a Phoenix area newspaper, reported on its
front page that Milke, Styers, and Roger Scott were arrested
and charged with first degree murder. The paper further
reported that Milke was not present when the boy was killed,
but conspired with “the other suspects to have her son killed.”
The following day, another article appeared on the front page
of the paper speculating as to the possible motives for the kill-
ing, including life insurance proceeds and possible abuse.
However, the article also reported that the medical examiner
who performed the autopsy found no indication of either
  3
    Although the district court certified additional allegations of ineffective
assistance of counsel, Styers does not raise these allegations in his opening
brief. We deem them waived. Eberle v. City of Anaheim, 901 F.2d 814,
818 (9th Cir. 1990); United States v. King, 257 F.3d 1013, 1029 n.5 (9th
Cir. 2001).
14862                      STYERS v. SCHRIRO
physical or sexual abuse. The article ultimately indicated that
the chief motive appeared to be that Milke and Styers felt the
boy was too much trouble, but noted that Styers’ three-year
old daughter, who also lived at the apartment, was not
harmed. By the third day, the newspaper reported the sub-
stance of Scott’s statement to police, which included his
assertion that he was to receive $250 from Styers for his help
and that he drove Styers and Christopher to the general vicin-
ity of the crime scene, after which Styers walked Christopher
to a nearby wash4 and shot him three times. Subsequent arti-
cles also reported on the funeral proceedings and reactions by
community members to the killing. One article printed several
written statements of fourth grade school children; while most
focused on their sorrow for Christopher, several children also
stated that death was the appropriate punishment for the kill-
ers. A total of twenty-five articles about the crime were pub-
lished in the month of December.

   However, in the next seven months (January 1st 1990
through September 10, 1990), only five more articles regard-
ing the crime were published.

   Debra Milke was the first of the three defendants to pro-
ceed to trial; her trial began on September 11, 1990. Over the
next month, twenty-six articles on Milke’s trial were pub-
lished. While the majority of these articles focus on the con-
tents of Milke’s confession, a few contain references to Styers
as the alleged triggerman and someone who plotted the mur-
der with Milke. The jury returned a guilty verdict in Milke’s
case on Friday, October 12, 1990.

  Jury selection for Styers’ trial began three days later on
October 15, 1990.
  4
    A “wash,” also called an “arroyo,” is a “dry channel lying in a semiarid
or desert area and subject to flash flooding during seasonal or irregular
rainstorms.” 1 New Encyclopedia Britannica 590 (15th ed.1998).
                       STYERS v. SCHRIRO                   14863
  B.   Voir Dire Proceedings

   The voir dire was conducted entirely by the trial judge. The
first group of prospective jurors called for questioning con-
sisted of a venire of thirty-six. After notifying the panel of the
charges against Styers, the trial judge asked if anyone had
“seen, heard, or read anything about the case.” The trial judge
observed that “[v]irtually everybody” raised his or her hand.
The trial judge then asked whether any of the prospective
jurors had formed any opinion as to the “guilt or innocence”
of the defendant. Those who raised their hands in response to
this question were then questioned individually, and asked
whether they would be able to set aside their opinion. Any
juror who indicated in the negative was struck by the trial
judge. As jurors were excused, new prospective jurors were
rotated into the mix from a separate pool consisting of forty-
four. Of these, thirty-nine stated that they had heard of the
case, and eighteen admitted to having formed opinions they
could not set aside. All eighteen were excused.

   Of the final twelve jurors who rendered the verdict, six
came from the group of thirty-six who had “virtually” all
heard of the case, while the other six came from the group of
forty-four. Of these latter six, only one had not heard of the
case. However, none of the twelve jurors stated that he or she
had formed an opinion about this case — either qualified or
unqualified.

  C.   Ineffective Assistance of Counsel

   [1] To establish ineffective assistance of counsel, Styers
must show that defense counsel’s performance was objec-
tively deficient and resulted in prejudice. See Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)
(citing Strickland v. Washington, 466 U.S. 668, 687, 694
(1984)). Thus, Styers must not only demonstrate that defense
counsel’s failure to move to strike the jury panel was out of
“the wide range of professionally competent assistance,” see
14864                      STYERS v. SCHRIRO
Strickland, 466 U.S. at 690, but also that, had counsel so
moved, there is reasonable probability that the motion would
have been granted.5 Id. at 695; Kimmelman v. Morrison, 477
U.S. 365, 383-91 (1986). As such, “[t]he governing legal stan-
dard plays a critical role in defining the question to be asked
in assessing prejudice for counsel’s errors.” Strickland, 466
U.S. at 695.

   [2] In reviewing challenges to jury panels based on pre-trial
publicity, the Arizona courts apply the same criteria as that
employed by the United States Supreme Court. Thus, a defen-
dant challenging a jury panel exposed to pre-trial publicity
must show that the publicity likely resulted in the denial of a
trial by fair and impartial jurors. See State v. Greenawalt, 128
Ariz. 150, 163, 624 P.2d 828, 841 (1981) (“our inquiry is
whether the publicity, extensive or otherwise, was prejudicial
to the point of having the probable effect of precluding a trial
by fair and impartial jurors”); Dobbert v. Florida, 432 U.S.
282, 302-03 (1977) (examining the impact of press coverage
on juror’s impartiality); Murphy v. Florida, 421 U.S. 794,
799-801 (1975) (same).

  In establishing his claim, a defendant may not merely rely
on the fact that the prospective jurors were exposed to pre-
  5
    Generally, a defendant claiming ineffective assistance of counsel for
failure to file a particular motion must not only demonstrate a likelihood
of prevailing on the motion, but also a reasonable probability that the
granting of the motion would have resulted in a more favorable outcome
in the entire case. See, e.g., Kimmelman, 477 U.S. at 390-91 (explaining
that to establish prejudice, a defendant must show not only that counsel
would have prevailed on a suppression motion, but also a reasonable prob-
ability that exclusion of the evidence would have resulted in acquittal).
However, because the motion in this case directly implicates the impartial-
ity of the jury itself (as explained infra) no such additional or separate
showing of prejudice would appear necessary. See Dyer v. Calderon, 151
F.3d 970, 973, n.2 (9th Cir. 1998) (conviction obtained via jury containing
even one biased member requires automatic reversal); see also Sullivan v.
Louisiana, 508 U.S. 275, 281-282 (1993) (deprivation of right to jury con-
stitutes structural error).
                       STYERS v. SCHRIRO                  14865
trial publicity, but must also establish that “the jurors [had]
formed preconceived notions concerning the defendant’s guilt
and that they [could] not lay those notions aside.” State v.
Walton, 159 Ariz. 571, 580, 769 P.2d 1017, 1026 (1989) (ital-
ics added) (citation omitted); State v. Jones, 197 Ariz. 290,
307, 4 P.3d 345, 362 (2000) (“[W]e are concerned with the
prejudicial effect of pretrial publicity, rather than merely the
amount of publicity.”) (italics in original).

   [3] Finally, the Arizona courts fully recognize that, if “a
defendant can show pretrial publicity so outrageous that it
promises to turn the trial into a mockery of justice or a mere
formality, prejudice will be presumed without examining the
publicity’s actual influence on the jury.” State v. Bible, 175
Ariz. 549, 563, 858 P.2d 1152, 1166 (1993) (citing Rideau v.
Louisiana, 373 U.S. 723 (1963)); see also Greenawalt, 128
Ariz., 162-63, 624 P.2d 840-841 (citing Sheppard v. Maxwell,
384 U.S. 333 (1966)); Nebraska v. Press Ass’n v. Stuart, 427
U.S. 539, 554 (1976) (commenting that courts rarely presume
prejudice due to outrageous pre-trial publicity).

  D.   Analysis

   Styers acknowledges that he is not basing his ineffective
assistance of counsel claim on a theory of actual prejudice —
presumably because the voir dire transcript reveals no preju-
dice on the part of the seated jurors and he submitted no affi-
davits to the contrary to the post-conviction court. Instead,
Styers argues that the pre-trial publicity was so pervasive and
inflammatory that it created a presumption of prejudice and
thus trial counsel would have prevailed on a motion to strike
the entire venire. The argument fails on this record.

   [4] In Murphy v. Florida, 421 U.S. 794, 798-800 (1975),
the Supreme Court summarized the rare cases in which it had
previously found presumptive prejudice based on pre-trial
publicity. After so doing, the Court explained that these cases
“cannot be made to stand for the proposition that juror expo-
14866                  STYERS v. SCHRIRO
sure to information about a state defendant’s prior convictions
or to news accounts of the crime with which he is charged
alone presumptively deprives the defendant of due process.”
Id. at 799 (italics added). Since Murphy, the Supreme Court
has twice rejected presumptive prejudice claims based on pre-
trial publicity in cases involving far more inflammatory pub-
licity than that in Styers’ case.

   For example, in Patton v. Yount, 467 U.S. 1025 (1984), the
media revealed the defendant’s “prior conviction for murder,
his confession, and his prior plea of temporary insanity.” Id.
at 1029. Despite the fact that 77% of the venire questioned
admitted they would “carry an opinion into the jury box,” and
8 out of 14 jurors and alternates seated admitted that they at
some time had formed an opinion as to defendant’s guilt, id.
at 1029-30, the Court concluded that “the voir dire testimony
and the record of publicity do not reveal the kind of ‘wave of
public passion’ that would have made a fair trial unlikely by
the jury that was empaneled as a whole.” Id. at 1040. It set
aside the Third Circuit’s finding of “presumed prejudice.” Id.
at 1031-32, 1040.

   In Mu’Min v. Virginia, 500 U.S. 415 (1991), the Court
reviewed a claim in which the petitioner contended that his
right to an impartial jury was violated because the trial judge
refused to question prospective jurors about the specific con-
tents of the news reports to which they had been exposed. Id.
at 417, 431. The defendant had submitted 47 articles to the
trial court relating to the murder. Id. at 418. One or more of
these articles discussed details of the murder and investiga-
tion, included information about defendant’s prior criminal
record, information regarding his prior murder conviction,
and an indication that he had confessed to the instant killing.
Ibid. Of the twelve jurors who rendered the final verdict, eight
had heard of the case. Id. at 421. However, none of them
stated he had formed an opinion and all swore that they could
enter the jury box with an open mind. Ibid. In rejecting peti-
tioner’s claim that further inquiry of the jurors was constitu-
                           STYERS v. SCHRIRO                         14867
tionally required, the Court noted that this was not the type of
case where a “presumption of prejudice” was created by the
pre-trial publicity and recognized that its holding may have
been different had that been the case. Id. at 429-30.

   [5] In light of Patton and Mu’Min, Styers cannot demon-
strate that his trial attorney would have likely prevailed on a
request to strike the jury panel. Unlike in Mu’Min and Patton,
there were no prior articles indicating that defendant had con-
fessed to the crime, nor was there any mention of prior crimi-
nal history on his part. Mu’Min, 500 U.S. at 418; Patton, 467
U.S. at 1029. And while Styers points to statements made by
his accomplice Scott which were reported in the newspaper
but not admitted at his trial, these statements were substan-
tially similar to evidence which was ultimately admitted and
far less damaging than the inadmissible evidence published in
Patton. See Patton, 467 U.S. at 1029 (trial upheld as funda-
mentally fair, despite the fact that “publicity revealed [defen-
dant’s] prior conviction for murder, his confession, and his
prior plea of temporary insanity — information not admitted
into evidence at trial.”) (italics added). Finally, the articles
published during Milke’s trial — and thus closer in time to
Styers’ trial — were virtually all factual accounts of her trial
proceedings, rather than opinion pieces containing inflamma-
tory rhetoric. See Murphy, 421 U.S. at 801 n.4 (noting impor-
tant distinction between “largely factual publicity” and “that
which is invidious or inflammatory”).

   Appearing to recognize that the Supreme Court opinions
are not in his favor,6 Styers relies almost exclusively on our
   6
     As explained earlier, in reviewing jury challenges due to pre-trial pub-
licity, the Arizona state courts typically apply the Supreme court precedent
in this area. Thus, Styers would fare no better under state law. See, e.g.,
State v. Bible, 175 Ariz. 549, 563-66, 858 P.2d 1152, 1166-69 (1993) (cit-
ing Supreme Court precedent prior to rejecting presumptive prejudice
claim involving 130 news articles, some of which incorrectly labeled
defendant as a child molester and mentioned that he failed a lie detector
14868                       STYERS v. SCHRIRO
decision in Daniels v. Woodford, 428 F.3d 1181 (9th Cir.
2005), in which we held that the denial of a change of venue
motion violated due process. However, Daniels was issued
almost fifteen years after Styers’ voir dire proceedings and
decided under pre-AEDPA standards. Daniels, 428 F.3d at
1196, 1211-1212. As such, Styers cannot rest his ineffective
assistance of counsel claim on Daniels.7 See Lowry v. Lewis,
21 F.3d 344, 346 (9th Cir. 1994) (holding that an attorney is
not ineffective for failing to anticipate a decision in a later
case); State v. Gates, 118 Ariz. 357, 359, 576 P.2d 1357, 1359
(1978) (state courts are not bound by lower federal court pre-
cedent).

   Finally, Styers argues that the state court’s finding of a fair
and impartial jury should not be accorded a presumption of
correctness under 28 U.S.C. § 2254(e)(1) because the voir
dire proceedings were far too brief and cursory to support
such a finding. However, even if Styers is correct on this point,8

test); State v. Jones, 197 Ariz. 290, 307, 4 P.3d 345, 362 (2000) (citing
Supreme Court precedent for proposition that courts rarely presume preju-
dice based on pre-trial publicity and ultimately rejecting claim in trial pre-
ceded by 850 articles in print or television and removal of 30 potential
jurors for fixed opinion).
   7
     Daniels is distinguishable in any event, as the publicity therein was far
more inflammatory. Daniels was convicted for shooting and killing two
officers who had previously shot him while he was fleeing from a bank
robbery, rendering Daniels a paraplegic. Daniels, 428 F.3d at 1186. Prior
to Daniels’ trial, a nine foot statue commemorating fallen police officers
was erected and publicly unveiled across from the courthouse where his
trial took place, numerous published letters called for his execution, and
facts regarding his past criminal history— including an arrest for shooting
at a police officer — were published by the press. Id. at 1211-12.
   8
     In Patton, the Supreme Court held that the question of whether an indi-
vidual juror could be fair and impartial was “plainly one of historical fact:
did a juror swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror’s protestations of
impartiality have been believed,” 467 U.S. at 1036, 1038, noting that “the
determination is essentially one of credibility, and therefore largely one of
demeanor.” However, the Court left open the question of whether a pre-
sumption of correctness should be applied to a trial court’s finding that a
“jury as a whole is impartial.” Id. at 1032, n.7.
                       STYERS v. SCHRIRO                   14869
his subsequent failure to carry his burden of persuasion in the
post-conviction court — through either a showing of actual or
presumed prejudice — precludes relief. See Bible, 175 Ariz.
at 564, 858 P.2d at 1167 (“The burden to show that pretrial
publicity is presumptively prejudicial clearly rests with the
defendant and is ‘extremely heavy.’ ”) (citation omitted); cf.
Daniels, 428 F.3d at 1211 (defendant conceded that “record
contains no findings that any jurors demonstrated partiality or
prejudice that could not be laid aside”).

   [6] The post-conviction state court’s determination that
Styers “failed to establish . . . . both prongs of ineffective
assistance of counsel” cannot be deemed unreasonable under
the AEDPA. See Edwards v. Lamarque, 475 F.3d at 1125-26.

         II.   Application of A.R.S. § 13-703(F)(6)

   [7] Styers alleges that in applying Arizona’s “especially
heinous or depraved” aggravating factor, under subsection
(F)(6), the state courts failed to apply a constitutionally suffi-
cient narrowing construction. However, the United States
Supreme Court has squarely rejected this claim. See Lewis v.
Jeffers, 497 U.S. 764, 777 (1990) (stating that Walton v. Ari-
zona, 497 U.S. 639 (1990), “disposes of respondent’s claim
that Arizona has not construed its subsection (F)(6) aggravat-
ing circumstance in a constitutionally narrow manner). Thus,
so long as the Arizona State Supreme Court applied its nar-
rowing construction to the facts of Styers’ case, all that
remains for our review is whether the “state court’s finding
was so arbitrary or capricious as to constitute an independent
due process or Eighth Amendment violation.” Jeffers, 497
U.S. at 780. In this regard, “[a] state court’s finding of an
aggravating circumstance in a particular case — including a
de novo finding by an appellate court that a particular offense
is ‘especially heinous . . . or depraved’ — is arbitrary or capri-
cious if and only if no reasonable sentencer could have so
concluded.” Id. at 783. This requires the application of the
Jackson v. Virginia, 443 U.S. 307 (1979), standard. Id.
14870                       STYERS v. SCHRIRO
   Here, when the Arizona Supreme Court rejected Styers’
(F)(6) challenge, it applied the narrowing construction con-
tained within State v. Gretzler, wherein it had identified five
circumstances that support a finding of heinousness and deprav-
ity.9 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). The court then
found that the senselessness of the murder and the helpless-
ness of the four-year old victim, as well as Styers’ special
relationship to the child as his full-time caregiver, supported
the finding that this murder was especially heinous and
depraved. See Styers, 177 Ariz. at 115; 865 P.2d at 776.

   [8] The record reveals sufficient evidence to support the
application of the (F)(6) finding. See Gretzler, 135 Ariz. at 52,
659 P.2d at 11 (noting that “either or both” the senselessness
and helplessness factors may, “together with other circum-
stances present in a particular case,” lead to the conclusion
that the offense was heinous or depraved); see also Correll,
137 F.3d at 1420 (rejecting challenge to application of F(6)
factor where trial record revealed, inter alia, helplessness of
victims and senselessness of murders). The Arizona Supreme
Court’s finding that Styers committed the murder in an “espe-
cially heinous . . . or depraved manner,” was neither arbitrary
nor capricious. Jeffers, 497 U.S. at 784; cf. Smith v. Mitchell,
453 F.3d 1203, 1206 (9th Cir. 2006) (“AEDPA requires the
federal courts to review Jackson claims with additional defer-
ence.”).

                 III.    Clemons duty to re-weigh

   [9] On direct review, the Arizona Supreme Court found the
aggravating factor of pecuniary gain to be invalid. Styers con-
tends that the court then failed to properly re-weigh the aggra-
  9
    In both Walton and Jeffers, the Arizona Supreme court had cited Gretz-
ler in construing and applying the “especially heinous and depraved” fac-
tor. Jeffers, 497 U.S. at 770-71 (citing State v. Jeffers, 135 Ariz. 404, 430,
661 P.2d 1105, 1131 (1983)); Walton, 497 U.S. at 645 (citing State v. Wal-
ton, 159 Ariz. 571, 587, 769 P.2d 1017, 1033 (1989).
                       STYERS v. SCHRIRO                   14871
vating and mitigating circumstances as required by Clemons
v. Mississippi, 494 U.S. 738, 748-749 (1990). Under Clemons,
an appellate court in a “weighing state,” such as Arizona, can
affirm a death sentence based on an invalid aggravating factor
only after conducting either a harmless error review or
reweighing the mitigating evidence against the remaining
valid aggravating factors. See Jeffers v. Lewis, 38 F.3d 411,
414-415 (9th Cir. 1994) (en banc), citing Clemons, 494 U.S.
at 741. In so doing, it must consider all relevant mitigating
evidence proffered by the defendant. See Jeffers v. Lewis, 38
F.3d at 414; Eddings v. Oklahoma, 455 U.S. 104, 115 (1982).

  A.   Exhaustion/Procedural default

   [10] The district court dismissed the Clemons claim on pro-
cedural default grounds, finding first that Styers failed to
exhaust it in the Arizona state courts and, second, that he
would now be barred from doing so under Arizona Rule of
Criminal Procedure 32.2(a)(3). However, after the Arizona
Supreme Court had decided his appeal, Styers filed a motion
for reconsideration pursuant to Rule 31.18 of the Arizona
Rules of Criminal Procedure. See Correll v. Stewart, 137 F.3d
1404, 1418 (9th Cir. 1998) (noting that a motion for reconsid-
eration is “an avenue of relief that the Arizona Rules of Crim-
inal Procedure clearly outline”). In his motion, Styers
specifically argued that the court had failed to consider rele-
vant mitigating evidence during its independent review of the
sentence, in violation of Eddings v. Oklahoma, 455 U.S. 104,
115-16 (1982), and the Eighth Amendment. Styers’ Clemons
claim is based on a violation of Eddings; he alleges that the
Arizona Supreme Court did not satisfy its constitutional duty
to reweigh the aggravating and mitigating factors because the
court improperly refused to consider relevant mitigating evi-
dence. His motion for reconsideration adequately informed
the state court of the factual and legal basis for this claim. It
is therefore exhausted. Anderson v. Harless, 459 U.S. 4, 6
(1982).
14872                     STYERS v. SCHRIRO
   Although the district court did not resolve this claim on the
merits, we nevertheless do so here, as is our prerogative. See
Granberry v. Greer, 481 U.S. 129, 134 (1987) (Appellate
courts have discretion to “determine whether the interests of
comity and federalism will be better served by addressing the
merits forthwith or by requiring a series of additional . . . dis-
trict court proceedings before reviewing the merits . . . .”).

  B.     Merits

   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,” see Styers,
177 Ariz. at 117, 865 P.2d at 778. However, its analysis prior
to this statement indicates otherwise.

   With regards to the evidence that Styers suffered from post-
traumatic stress disorder as a result of his combat service in
Vietnam, the court stated the following:

       This could also, in an appropriate case, constitute
       mitigation. See State v. Bilke, 162 Ariz. 51, 53, 781
       P.2d 28, 30 (1989) . . . However, two doctors who
       examined defendant could not connect defendant’s
       condition to his behavior at the time of the conspir-
       acy and the murder.

       Styers, 177 Ariz. at 116, 865 P.2d at 777. (italics
       added.)

   The court’s use of the conjunctive adverb “however,” fol-
lowing its acknowledgment that such evidence “could” in cer-
tain cases constitute mitigation, indicates that this was not
such a case.10 In Bilke, the case cited by the Styers court as an
  10
     Dictionary definitions of “however” include “nevertheless; yet; in
spite of that; all the same.” Webster’s New World College Dictionary (4th
ed. 2006).
                       STYERS v. SCHRIRO                   14873
example of when post-traumatic stress disorder evidence
could constitute mitigation, the defendant presented newly-
discovered evidence including a psychological report which
specifically tied his disorder to his criminal acts. See Bilke,
162 Ariz. at 52, 781 P.2d at 29. The Bilke court remanded the
matter for an evidentiary hearing, stating, “[h]ad the sentenc-
ing judge been aware that a mental disease known as post-
traumatic disorder existed . . . and that the disorder was a
causative factor leading to the commission of the crimes, he
might well have sentenced the defendant differently.” Bilke,
162 Ariz. at 53, 781 P2d at 30 (italics added); cf. State v. Hos-
kins, 199 Ariz. 127, 152, 14 P.3d 997, 1022 (2000) (en banc)
(“If the defendant fails to prove causation, the circumstance
will not be considered mitigating.”) (italics added); State v.
Vickers, 129 Ariz. 506, 516, 633 P.2d 315, 325 (1981) (noting
that evidence presented by defendant established only that
character disorder existed, not that the disorder “impaired his
capacity on the night [the victim] was murdered so as to con-
stitute a mitigating circumstance.”) (italics added.)

   [11] In applying this type of nexus test to conclude that
Styers’ post traumatic stress disorder did not qualify as miti-
gating evidence, the Arizona Supreme court appears to have
imposed a test directly contrary to the constitutional require-
ment that all relevant mitigating evidence be considered by
the sentencing body. Smith v. Texas, 543 U.S. 37, 45 (2004)
(citing Eddings, and stating that nexus test is a test “we never
countenanced and now have unequivocally rejected,” and that
this holding was “plain under [its] precedents”); see Eddings,
455 U.S. at 114-15 (“[t]he sentencer, and the [appellate court]
on review, may determine the weight to be given relevant mit-
igating evidence. But they may not give it no weight by
excluding such evidence from their consideration.”) As such,
the court could not have fully discharged its obligations under
Clemons. Cf. Jeffers, 38 F.3d at 418 (rejecting Clemons claim
where it was “clear” that all proffered evidence in mitigation
had been considered). We reverse the district court’s decision
denying relief with regards to this claim. In so doing, how-
14874                   STYERS v. SCHRIRO
ever, we neither express nor imply any opinion as to the
appropriate sentence in this case. This is a matter for the state
courts, so long as the constitutional obligations under Eddings
and Clemons are honored.

                        DISPOSITION

   [12] We vacate the district court’s judgment denying the
writ of habeas corpus and remand with instructions to grant
the writ with respect to Styers’ sentence unless the state,
within a reasonable period of time, either corrects the consti-
tutional error in petitioner’s death sentence or vacates the sen-
tence and imposes a lesser sentence consistent with law.

 AFFIRMED          in   part;   VACATED         in   part   and
REMANDED.
