Poyson v. Ryan

Decision Date02 April 2014
Docket NumberNo. 10–99005.,10–99005.
PartiesRobert Allen POYSON, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Jon M. Sands, Federal Public Defender, Michael L. Burke (argued), Assistant Federal Public Defender, Ngozi V. Ndulue, Assistant Federal Public Defender, Phoenix, AZ, for PetitionerAppellant.

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, AZ, for RespondentAppellee.

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.

Before: SIDNEY R. THOMAS, RAYMOND C. FISHER, and SANDRA S. IKUTA, Circuit Judges.

ORDER

Judge Thomas has voted to grant the petition for rehearing en banc. 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 rehearing en banc, filed April 12, 2013, is DENIED.

Appellant's petition for panel rehearing, filed April 12, 2013, remains pending. The panel will stay proceedings on the petition for panel rehearing pending resolution of en banc proceedings in McKinney v. Ryan, 730 F.3d 903 (9th Cir.2013),rehearing en banc granted, 2014 WL 1013859 (Mar. 12, 2014).

This opinion filed at 711 F.3d 1087 (9th Cir.2013) is amended, and an Amended Opinion was filed concurrently with the original version of this order.

No further petitions will be entertained.

The clerk shall stay the mandate.

Order; Dissent to Order by Chief Judge KOZINSKI; Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge THOMAS.

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 1208 n. 3, contravenes Supreme Court authority and undermines our circuit law. See Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (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.

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.

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, 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 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, 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 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...

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