Argued and Submitted February 15, 2012—San Francisco, California
Amended November 7, 2013
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
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.
Before: Sidney R. Thomas, Raymond C. Fisher, and Sandra S. Ikuta, Circuit Judges.
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 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.
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.
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 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.
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.
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.
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.
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 thAfter 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.
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.
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
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. As relevant here, Poyson argued that his history of drug and alcohol abuse, troubled childhood and personality ...