                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT ALLEN POYSON,                  No. 10-99005
        Petitioner-Appellant,
                                        D.C. No.
             v.                   2:04-cv-00534-NVW

CHARLES L. RYAN,                   ORDER AND
       Respondent-Appellee.      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 Federal Public 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 Respondent-
Appellee.


                          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 concurrently with
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 deny Poyson his right
to individualized sentencing by applying an unconstitutional
causal nexus screening test to potentially mitigating 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 law enumerated 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 statutory mitigating 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 ability to 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 (pecuniary gain,
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 post-
traumatic 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 assessing mitigating 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 contrary conclusion 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 by weighing 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 Supreme Court 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
perfectly consistent—practice of unconstitutional capital sentencing before
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 relevant mitigating
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 statutory standards 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 nexus test
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 felony offense[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 from personality 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.
