Poyson v. Ryan

• Decision Date: 22 March 2013
• Docket Number: No. 10-99005,10-99005
• Parties: Robert Allen POYSON, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

879 F.3d 875

Robert Allen POYSON, Petitioner–Appellant,

v.Charles L. RYAN, Respondent–Appellee.

No. 10-99005

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2012, San Francisco, California

Filed March 22, 2013

Amended November 7, 2013

Argued and Submitted En Banc September 18, 2017

Amended January 12, 2018

Therese Michelle Day (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner–Appellant.

J.D. Nielsen (argued) and Jon G. Anderson, Assistant Attorneys General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondent–Appellee.

Before: Sidney R. Thomas, Chief Judge, and Raymond C. Fisher and Sandra S. Ikuta, Circuit Judges.

Concurrence by Judge Ikuta

ORDER AND AMENDED OPINION

The petition for panel rehearing filed April 12, 2013 (Dkt. 69), which remains pending pursuant to this court's April 2, 2014 order (Dkt. 79), is GRANTED .

The opinion filed November 7, 2013, and reported at 743 F.3d 1185, is AMENDED . An amended opinion is filed concurrently with this order.

No further petitions for rehearing may be filed.

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 agree with Poyson on his first claim. We conclude his second claim is without merit. And we hold his third claim is procedurally defaulted.

As to the first claim, we hold the Arizona Supreme Court denied Poyson his Eighth Amendment right to individualized sentencing by applying an unconstitutional causal nexus test to his mitigating evidence of a troubled childhood and mental health issues. We reach this conclusion because (1) the Arizona Supreme Court sentenced Poyson in 2000, which was in the midst of the 15–year period during which that court consistently applied an unconstitutional causal nexus test to evidence of a capital defendant's family background or mental condition, see McKinney v. Ryan , 813 F.3d 798, 802–03 (9th Cir. 2015) (en banc); (2) in sentencing Poyson, the Arizona Supreme Court gave Poyson's proffered evidence no weight , and it expressly did so because of the absence of a causal connection between the evidence and his crimes, see State v. Poyson , 198 Ariz. 70, 7 P.3d 79, 90–91 (2000) ; (3) in affording that evidence no weight, the Arizona Supreme Court cited a passage in one of its earlier cases that we have specifically identified as articulating that court's unconstitutional causal nexus test, see id. (quoting State v. Brewer , 170 Ariz. 486, 826 P.2d 783, 802 (1992) ); McKinney , 813 F.3d at 815 ; and (4) although the Arizona Supreme Court couched its decision in terms of "mitigating weight" and "mitigating value," our case law makes clear that the court deemed the evidence nonmitigating as a matter of law , see McKinney , 813 F.3d at 816–17. The Arizona Supreme Court's application of this unconstitutional causal nexus test was "contrary to" the Supreme Court's decision in Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), see 28 U.S.C. § 2254(d)(1), and constituted a violation of Poyson's rights under the Eighth Amendment. We further hold the error "had substantial and injurious effect or influence in determining" the sentence. McKinney , 813 F.3d at 822 (quoting Brecht v. Abrahamson , 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). We therefore grant habeas relief on Poyson's causal nexus claim.

We 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 the state courts unconstitutionally refused to consider mitigating evidence, a claim arising under Lockett v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The state courts, however, did consider the evidence. They simply found it wanting as a matter of fact, finding 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, 111 S.Ct. 731, 112 L.Ed.2d 812 (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 he 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, 106 S.Ct. 617, 88 L.Ed.2d 598 (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, 106 S.Ct. 617. 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 , 198 Ariz. 70, 7 P.3d 79, 83 (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.

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.

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...