Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding D.C. No. 2:04-cv-00534-NVW
The opinion of the court was delivered by: Fisher, Circuit Judge
Argued and Submitted February 15, 2012--San Francisco, California
Before: Sidney R. Thomas, Raymond C. Fisher, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher; Partial Concurrence and Partial Dissent by Judge Thomas
Habeas Corpus/Death Penalty
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 reveal whether the court applied such a test as an unconstitutional screening mechanism or as 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 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.
Judge Thomas concurred in part, but dissented because he would hold that the state court unconstitutionally excluded mitigating evidence from consideration because it was not causally related to the crimes.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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. *fn2 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.
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 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. *fn3 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 ...