Robert Poyson v. Charles Ryan

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
Argued and Submitted En Banc September 18, 2017
Amended January 12, 2018

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

Order;
Opinion by Judge Fisher;
Concurrence by Judge Ikuta
2 POYSON V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The panel granted a petition for panel rehearing, filed an
amended opinion reversing the district court’s denial of
Robert Allen Poyson’s habeas corpus petition challenging his
death sentence, and remanded.

The panel held that 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. The panel held that the error had substantial
and injurious effect or influence in determining the sentence,
and therefore granted habeas relief on this claim.

The panel denied relief on Poyson’s claim that the
Arizona courts failed to consider his history of substance
abuse as a nonstatutory mitigating factor. The panel wrote
that the state courts did consider the evidence and simply
found it wanting as matter of fact. The panel wrote that 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.

The panel agreed 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.

*
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

The panel denied Poyson’s motion for reconsideration of
its March 2013 order denying his motion for remand under
Martinez v. Ryan, 566 U.S. 1 (2012).

Judge Ikuta concurred because the three-judge panel is
bound by the decision in McKinney v. Ryan, 813 F.3d 798
(9th Cir. 2015) (en banc), but wrote separately to highlight
how McKinney’s erroneous conclusion that a causal nexus
error had a “substantial and injurious effect” on a state court’s
decision infects the panel’s decision in this case.

COUNSEL

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.
4 POYSON V. RYAN

ORDER

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 1183, is AMENDED. An amended opinion is filed
concurrently with this order.

No further petitions for rehearing may be filed.

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 agree
with Poyson on his first claim. We conclude his second claim
 POYSON V. RYAN 5

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, 7 P.3d 79, 90–91 (Ariz. 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, 826 P.2d 783, 802 (Ariz. 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 (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”
6 POYSON V. RYAN

the sentence. McKinney, 813 F.3d at 822 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (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 (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 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
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 (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 V. RYAN 7

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.

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.
8 POYSON V. RYAN

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
 POYSON V. RYAN 9

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 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
10 POYSON V. RYAN

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.
 POYSON V. RYAN 11

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 his history of drug and alcohol abuse, troubled
childhood and personality disorders constituted both statutory
and nonstatutory mitigating circumstances.

a. Substance Abuse

Poyson argued 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 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

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.
12 POYSON V. RYAN

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 suffered a PCP flashback during Delahunt’s murder.

b. Troubled Childhood

Poyson argued his troubled childhood was a statutory
mitigating circumstance because it affected his behavior at
the time of the murders. In the alternative, he argued 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 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 by a
neighbor on one occasion shortly after Sabas’ death. Poyson
emphasized that his delinquent behavior and substance abuse
began shortly after the death of Sabas and the sexual assault.

c. Mental Health Issues

The sentencing memorandum argued Poyson suffered
from several personality disorders, constituting a nonstatutory
 POYSON V. RYAN 13

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 Poyson be prescribed medication to control his
behavior. Poyson also pointed to a 1990 Juvenile
Predisposition Investigation by Nolan Barnum. Barnum too
recommended 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 also found Poyson’s overall intellectual
functioning to be “in the low average range.”

5. Sentencing Hearing and Imposition of Sentence

The state trial court held a sentencing hearing and
imposed sentence in late November 1998.

The court found 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).
14 POYSON V. RYAN

The court found 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.2 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.

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

2
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.”).
 POYSON V. RYAN 15

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.” The court then proceeded to consider Poyson’s mental
health issues, troubled childhood and history of substance
abuse as potential mitigating factors.

a. 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 Poyson had proven 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
factor because I am unable to draw any
connection whatsoever with such personality
disorders and the commission of these
offenses.3

3
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 the planning and sophistication that went
16 POYSON V. RYAN

b. Troubled Childhood

The court similarly rejected Poyson’s difficult childhood
as a nonstatutory mitigating factor. At step one, the court
found 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.” The court also found
“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.”

c. 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:

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.”
 POYSON V. RYAN 17

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.

Ultimately, the state trial court found only one
nonstatutory mitigating factor – Poyson’s cooperation with
law enforcement. The court concluded this one mitigating
factor was insufficiently substantial to call for leniency and
imposed a sentence of death.

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).
18 POYSON V. RYAN

With respect to statutory mitigating factors, the supreme
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. The court then turned to
nonstatutory mitigation, agreeing with the trial court that
Poyson’s substance abuse, mental health and abusive
childhood were not nonstatutory mitigating circumstances.

a. Substance Abuse

As to substance abuse, the supreme court agreed with the
trial court that Poyson’s evidence failed at step one because
it 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
 POYSON V. RYAN 19

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.

b. Mental Health Issues

With respect to mental health issues, the supreme 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,
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
20 POYSON V. RYAN

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 (last alteration in original).

c. Troubled Childhood

The supreme court also agreed with the trial court’s
assessment of Poyson’s troubled childhood. The court found
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.

Ultimately, the Arizona Supreme 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 law
enforcement, potential for rehabilitation and family support).
 POYSON V. RYAN 21

See id. at 90–91.4 The court concluded the mitigating
evidence was not sufficiently substantial to call for leniency
and affirmed the death sentence. 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 also concluded
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.

4
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.
22 POYSON V. RYAN

F. Proceedings in This Court

We originally heard argument on Poyson’s appeal in
February 2012. We issued an opinion in March 2013, Poyson
v. Ryan, 711 F.3d 1087 (9th Cir. 2013), and an amended
opinion in November 2013, Poyson v. Ryan, 743 F.3d 1185
(9th Cir. 2013). In April 2014, we stayed proceedings on
Poyson’s petition for panel rehearing pending the resolution
of en banc proceedings in McKinney v. Ryan, 730 F.3d 903
(9th Cir. 2013).5 Our en banc court decided McKinney in
December 2015. See McKinney v. Ryan, 813 F.3d 798 (9th
Cir. 2015) (en banc). In May 2016, we extended the stay on
Poyson’s petition for rehearing pending resolution of
Supreme Court proceedings in McKinney. In October 2016,
following the Supreme Court’s denial of the petition for writ
of certiorari in McKinney, we further extended the stay and
directed the parties to file supplemental briefs addressing the
impact of McKinney on the issues presented in this appeal.
Following the parties’ briefing, we heard oral argument on
the petition for rehearing in September 2017. This amended
opinion follows.

5
In May 2014, while our stay was in place, the Supreme Court denied
Poyson’s petition for writ of certiorari. See Poyson v. Ryan, 134 S. Ct.
2302 (2014). The Court also denied Poyson’s motion to defer
consideration of the petition for writ of certiorari. See id. The state
contends we were required to lift our stay and issue the mandate once the
Supreme Court denied certiorari. We disagree. Because we issued our
stay under Fed. R. App. P. 41(d)(1), rather than Fed. R. App. P. 41(d)(2),
the authorities upon which the state relies, including Rule 41(d)(2)(D), do
not apply here. See Alphin v. Henson, 552 F.2d 1033, 1034–35 (4th Cir.
1977), cited with approval by Bell v. Thompson, 545 U.S. 794, 806 (2005).
 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 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 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
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 earlier decisions. These cases 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
rights but also satisfy the Antiterrorism and Effective Death
24 POYSON V. RYAN

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 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 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
petitioner has exhausted his federal claims when he has fully
and fairly presented them to the state courts.”).
 POYSON V. RYAN 25

2. The Arizona Supreme Court’s Decision Was Contrary
to Clearly Established Federal Law

Lockett, Eddings and Penry held “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)).

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), overruled on other
grounds by McKinney, 813 F.3d at 824. 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), overruled on other grounds by McKinney, 813 F.3d at
818. “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
v. Ryan, 671 F.3d 708, 723 (9th Cir. 2011), rev’d on other
grounds, 133 S. Ct. 2548 (2013), and overruled on other
26 POYSON V. RYAN

grounds by McKinney, 813 F.3d at 819. 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.

In McKinney, 813 F.3d at 815, we held, “[f]or a little over
fifteen years, the Arizona Supreme Court routinely articulated
and insisted on [an] unconstitutional causal nexus test.”
Under this test, “family background or a mental condition
could be given weight as a nonstatutory mitigating factor, but
only if defendant established a causal connection between the
background or condition and his criminal behavior.” Id.
Beginning in 1989, “[a]s a matter of law, a difficult family
background or mental condition did not qualify as a
nonstatutory mitigating factor unless it had a causal effect on
the defendant’s behavior in committing the crime at issue.”
Id. at 816. The Arizona Supreme Court “finally abandoned
its unconstitutional causal nexus test for nonstatutory
mitigation” in the mid-2000s. Id. at 817.

McKinney recognized that, in AEDPA cases, “we apply
a ‘presumption that state courts know and follow the law’ and
accordingly give state-court decisions ‘the benefit of the
 POYSON V. RYAN 27

doubt.’” Id. at 803 (quoting Woodford v. Visciotti, 537 U.S.
19, 24 (2002)). But that “presumption is rebutted . . . where
we know, based on its own words, that the Arizona Supreme
Court did not ‘know and follow’ federal law.” Id. at 804.

McKinney also recognized that “[t]he Arizona Supreme
Court articulated the causal nexus test in various ways but
always to the same effect.” Id. at 816. “The Arizona Court
frequently stated categorically that, absent a causal nexus,
would-be nonstatutory mitigation was simply ‘not a
mitigating circumstance.’” Id. (quoting State v. Wallace,
773 P.2d 983, 986 (Ariz. 1989)). “Sometimes, the court
stated that evidence offered as nonstatutory mitigation that
did not have a causal connection to the crime should be given
no ‘weight.’” Id. Other times, “the Arizona Supreme Court
stated that evidence of a difficult family background or
mental illness was ‘not necessarily’ or not ‘usually’
mitigating, and then (often in the same paragraph) held as a
matter of law that the evidence in the specific case before the
Court was not mitigating because it had no causal connection
to the crime.” Id. at 817.

In the case before us, we conclude the Arizona Supreme
Court applied an unconstitutional causal nexus test to
Poyson’s mitigating evidence of a difficult childhood and
mental health issues. First, the court gave no weight at all to
the evidence, and it did so because the evidence bore no
causal connection to the crimes. See Poyson, 7 P.3d at
90–91. With respect to Poyson’s childhood, the court ruled:

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
28 POYSON V. RYAN

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.

Poyson, 7 P.3d at 91 (emphasis added). With respect to
Poyson’s mental health issues, the court ruled:

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, 170 Ariz. 486, 505, 826 P.2d 783,
802 (1992); see also Medina, 193 Ariz. at
517, 975 P.2d at 107 (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.
 POYSON V. RYAN 29

Id. at 90–91 (emphasis added) (alterations in original). This
is some evidence that the court applied an unconstitutional
causal nexus test in Poyson’s case. See McKinney, 813 F.3d
at 821 (holding the Arizona Supreme Court applied an
unconstitutional causal nexus test based in part on “the
factual conclusion by the sentencing judge, which the
Arizona Supreme Court accepted, that McKinney’s PTSD did
not ‘in any way affect[ ] his conduct in this case’” (alteration
in original)).

Second, the Arizona Supreme Court affirmed Poyson’s
death sentence in 2000, in the midst of the 15-year period
during which that court “consistently articulated and applied
its causal nexus test.” McKinney, 813 F.3d at 803 (emphasis
added). Indeed, the Arizona court issued its decision in
Poyson’s case just a few months before it decided State v.
Hoskins, 14 P.3d 997 (Ariz. 2000), supplemented, 65 P.3d
953 (Ariz. 2003), a case McKinney singled out as
exemplifying the Arizona Supreme Court’s unconstitutional
practice. See McKinney, 813 F.3d at 814–15. This fact
further supports the conclusion that the Arizona Supreme
Court applied an unconstitutional causal nexus test in
Poyson’s case.

Third, in applying a causal nexus test to Poyson’s mental
health evidence, the Arizona Supreme Court cited a passage
from State v. Brewer, 826 P.2d 783, 802 (1992), that
McKinney specifically identified as applying an
unconstitutional causal nexus test. Compare Poyson, 7 P.3d
at 90–91 (quoting Brewer and stating “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’” (alteration in original)), with McKinney, 813 F.3d
at 815 (citing this precise language in Brewer as exemplifying
30 POYSON V. RYAN

the Arizona Supreme Court’s unconstitutional causal nexus
test). This fact too supports the conclusion that the Arizona
Supreme Court applied an unconstitutional causal nexus test
in Poyson’s case. See McKinney, 813 F.3d at 821
(concluding the Arizona Supreme Court applied an
unconstitutional test in part based on the court’s “pin citation
to the precise page in [State v. Ross, 886 P.2d 1354, 1363
(Ariz. 1994),] where it had previously articulated that test”).

Fourth, although the Arizona Supreme Court said the
evidence in Poyson’s case was “without mitigating value”
and would be accorded “no mitigating weight,” suggesting
the possibility that the court applied a causal nexus test as a
permissible weighing mechanism, McKinney makes clear that
the court instead applied an unconstitutional causal nexus
test, treating the evidence as irrelevant or nonmitigating as a
matter of law. See id. at 816 (holding the state court applied
an unconstitutional test where “the court stated that evidence
offered as nonstatutory mitigation that did not have a causal
connection to the crime should be given no ‘weight’”); id.
(holding the state court applied an unconstitutional causal
nexus test where it said “a difficult family background is not
always entitled to great weight as a mitigating circumstance”
(quoting State v. Towery, 920 P.2d 290, 311 (Ariz. 1996)));
id. at 820 (holding the state court applied an unconstitutional
causal nexus test where it said “[a] difficult family
background, including childhood abuse, does not necessarily
have substantial mitigating weight absent a showing that it
significantly affected or impacted a defendant’s ability to
perceive, to comprehend, or to control his actions” (quoting
State v. McKinney, 917 P.2d 1214, 1226 (Ariz. 1996))).

For these reasons, we conclude the Arizona Supreme
Court applied an unconstitutional causal nexus test to
 POYSON V. RYAN 31

Poyson’s evidence of a troubled childhood and mental health
issues. “This holding was contrary to Eddings.” Id. at 821.
Accordingly, as in McKinney, we “hold that the decision of
the Arizona Supreme Court applied a rule that was ‘contrary
to . . . clearly established Federal law, as determined by the
Supreme Court of the United States.’” Id. (alteration in
original) (quoting 28 U.S.C. § 2254(d)(1)).

With respect to Poyson’s evidence of a history of
substance abuse, however, we conclude there was no Eddings
error. The state supreme court rejected this evidence at step
one in the analysis, adopting the trial court’s finding as a
matter of fact that Poyson had failed to establish a history of
substance abuse by a preponderance of the evidence. See
Poyson, 7 P.3d at 90. The court’s treatment of Poyson’s
substance abuse evidence thus was not contrary to Eddings.

3. On De Novo Review, Poyson Has Shown the Arizona
Supreme Court Applied an Unconstitutional Causal
Nexus Test

Because AEDPA is satisfied, we review Poyson’s
constitutional claim de novo. See Frantz v. Hazey, 533 F.3d
724, 735 (9th Cir. 2008) (en banc). We begin by asking
whether Poyson has shown a constitutional violation. If
Poyson has made this showing, we consider whether he was
prejudiced under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Poyson has satisfied the first part of this inquiry. The
Supreme Court’s decisions in Tennard v. Dretke, 542 U.S.
274, 287 (2004), Smith v. Texas, 543 U.S. 37, 45 (2004) (per
curiam), Lockett, Eddings and Penry all prohibit a state from
requiring a defendant to prove a nexus between mitigating
evidence and the crime. As discussed above, the Arizona
32 POYSON V. RYAN

Supreme Court violated this rule in Poyson’s case. Poyson
has therefore established that the Arizona Supreme Court
applied an unconstitutional causal nexus test to evidence of
his troubled childhood and mental health issues.

4. Poyson Was Prejudiced

“The harmless-error standard on habeas review provides
that ‘relief must be granted’ if the error ‘had substantial and
injurious effect or influence in determining the jury’s
verdict.’” McKinney, 813 F.3d at 822 (quoting Brecht,
507 U.S. at 623). “There must be more than a ‘reasonable
possibility’ that the error was harmful.” Davis v. Ayala,
135 S. Ct. 2187, 2198 (2015) (quoting Brecht, 507 U.S. at
637). “[T]he court must find that the defendant was actually
prejudiced by the error.” Id. (quoting Calderon v. Coleman,
525 U.S. 141, 146 (1998) (per curiam)). Under this standard:

[I]f one cannot say, with fair assurance, after
pondering all that happened without stripping
the erroneous action from the whole, that the
judgment was not substantially swayed by the
error, it is impossible to conclude that
substantial rights were not affected. The
inquiry cannot be merely whether there was
enough to support the result, apart from the
phase affected by the error. It is rather, even
so, whether the error itself had substantial
influence. If so, or if one is left in grave
doubt, the conviction cannot stand.

McKinney, 813 F.3d at 822 (alteration in original) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Accordingly, “[w]hen a federal judge in a habeas proceeding
 POYSON V. RYAN 33

is in grave doubt about whether a trial error of federal law had
substantial and injurious effect or influence in determining
the jury’s verdict, that error is not harmless. And, the
petitioner must win.” Id. (alteration in original) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).

Our analysis once again is guided by McKinney, where
we held the causal nexus error was prejudicial under
circumstances similar to those presented here. See id. at
822–24. Here, as in McKinney, there were three aggravating
factors – pecuniary gain; especially cruel, heinous or
depraved murders; and multiple homicides. See Poyson,
7 P.3d at 87–88; McKinney, 813 F.3d at 823. Here, as in
McKinney, the improperly disregarded evidence concerned
the defendant’s traumatic childhood and mental health issues.
See Poyson, 7 P.3d at 90–91; McKinney, 813 P.3d at 819.

As in McKinney, moreover, the evidence of a traumatic
childhood in this case was particularly compelling. Both of
Poyson’s parents abused drugs and alcohol at the time of his
conception. His mother used LSD on a daily basis. She
continued to abuse drugs and alcohol – including daily use of
LSD – while she was pregnant with Poyson. Poyson never
knew his biological father, an alcoholic. During his
childhood, his mother was in relationships with many
different men, and Poyson lacked a stable home life. One of
these men, Guillermo Aguilar, physically and mentally
abused Poyson, subjecting Poyson to repeated beatings.
Aguilar brutally whipped Poyson with an electrical cord, and
he eventually was sent to jail for abusing Poyson and his
siblings. Others of these men abused drugs and alcohol. One
even drank and did drugs with Poyson.
34 POYSON V. RYAN

Poyson also suffered a number of physical and
developmental problems as a child. He was developmentally
delayed in areas such as crawling, walking and speaking. He
had a speech impediment, fell behind in school and received
special education services. He sustained several head
injuries. Once, when he and his brother were playing, he had
a stick impaled in his head. He suffered severe headaches,
and passed out unconscious on several occasions. He was
involuntarily intoxicated as a young child. He was subjected
to physical abuse not only by Aguilar but also by his mother,
who once hit him so hard it dislodged two teeth, and in
particular by his maternal grandmother, Mary Milner, who
beat him repeatedly and savagely.

When Poyson was 10 or 11 years old, he suffered two
traumatic events that, according to witnesses at Poyson’s
sentencing, forever changed his life. Of the many adult men
in Poyson’s life, Poyson was close with just one of them,
Sabas Garcia, his stepfather and the one true father figure
Poyson ever had. When Poyson was 10 or 11, however,
Sabas committed suicide by shooting himself in the head.
Poyson was devastated by Sabas’ death, which changed
Poyson completely. He became distant, spending time away
from home. He didn’t care anymore. He began using and
abusing drugs and alcohol, and he began having behavioral
problems. His contacts with law enforcement also began at
this time, and his performance in school suffered
dramatically. Before Sabas’ death, Poyson had overcome his
earlier developmental challenges to become an A or B
student, but after Sabas’ death he began receiving Cs, Ds and
Fs, and he eventually dropped out of school. His family life
became even less stable. He bounced around from relative to
relative, living from time to time with his mother, an aunt, his
grandmother and another stepfather. Shortly after Sabas’
 POYSON V. RYAN 35

death, moreover, Poyson suffered a second severe trauma in
his life when he was lured to the home of a childhood friend
and violently raped. The attacker threw Poyson face down on
a bed and brutally sodomized him.

Under the circumstances of this case, which closely track
those in McKinney, we conclude the Arizona Supreme
Court’s application of an unconstitutional causal nexus test
“had a ‘substantial and injurious effect or influence’ on its
decision to sentence [Poyson] to death.” McKinney, 813 F.3d
at 824 (quoting Brecht, 507 U.S. at 623).

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 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
36 POYSON V. RYAN

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 his constitutional rights were violated.
See Wilson v. Corcoran, 562 U.S. 5–6 (2010) (per curiam)
(holding that although § 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 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 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
 POYSON V. RYAN 37

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 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
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.
38 POYSON V. RYAN

In sum, we hold 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.

C. Penalty Phase Ineffective Assistance of Counsel

In his federal habeas petition, Poyson argued 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 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.
 POYSON V. RYAN 39

“[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
(1986)).6 “[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 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 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

6
For purposes of review under 28 U.S.C. § 2254(d)(1), factual
allegations must be based on the “record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.
170, 180 (2011).
40 POYSON V. RYAN

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.
Poyson presented a report by a neuropsychologist retained
during the state habeas proceedings, Robert Briggs, Ph.D.
According to Poyson, Briggs’ report showed 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 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 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 trial
counsel were ineffective because they “failed to make any
effort to investigate and develop” evidence that Poyson
 POYSON V. RYAN 41

suffered from FASD. He alleged 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
alleged 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 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
42 POYSON V. RYAN

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
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.

IV. CONCLUSION

We reverse the district court’s judgment denying the writ
of habeas corpus. We remand with instructions to grant the
writ with respect to Poyson’s sentence unless the state, within
a reasonable period, either corrects the constitutional error in
his death sentence or vacates the sentence and imposes a
 POYSON V. RYAN 43

lesser sentence consistent with law. See McKinney, 813 F.3d
at 827. We do not reach Poyson’s contention, raised for the
first time in his supplemental briefing, that he is entitled to a
new sentencing proceeding before a jury under Ring v.
Arizona, 536 U.S. 584 (2002), Hurst v. Florida, 136 S. Ct.
616 (2016), and Magwood v. Patterson, 561 U.S. 320, 332
(2010).

REVERSED AND REMANDED.

***

Poyson’s motion for reconsideration of our March 2013
order denying his motion for a remand under Martinez v.
Ryan, 566 U.S. 1 (2012), is without merit. Our intervening
decision to remand in Dickens v. Ryan, 740 F.3d 1302, 1320
(9th Cir. 2014) (en banc), did not change our holding in
Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012), that
a remand is not required where, as here, the record is
sufficiently complete for us to hold that counsel’s
representation was not ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). The additional evidence
Poyson offers does not show remand was necessary. That Dr.
Robert Briggs was placed on and then removed from
probation by the Arizona Board of Psychological Examiners
does not change our previous conclusion that Poyson’s
postconviction relief counsel reasonably relied on Dr. Briggs,
the retained neuropsychological expert who was aware of
Poyson’s exposure to drugs and alcohol in utero but did not
advise counsel that Poyson suffered from fetal alcohol
spectrum disorder. The motion (Dkt. 74) is therefore
DENIED.
44 POYSON V. RYAN

IKUTA, Circuit Judge, concurring:

Our en banc decision in McKinney v. Ryan, 813 F.3d 798
(9th Cir. 2015) (en banc) (McKinney II), erred in concluding
that any Eddings error had a “substantial and injurious
effect,” id. at 822 (quoting Brecht v. Abrahamson, 507 U.S.
619, 623 (1993)), on the Arizona Supreme Court’s decision
to affirm the defendant’s death sentence. State v. McKinney,
185 Ariz. 567, 917 P.2d 1214 (1996) (McKinney I). As a
result, our decision today is wrongly decided. Nevertheless,
as a three-judge panel, we are bound by McKinney II until
either the Supreme Court or a future en banc panel overrules
it. Therefore, I concur in the majority opinion and write
separately only to point out how McKinney II’s error in
applying Brecht infects our decision here.

I

Under AEDPA, we must determine whether the decision
of the Arizona Supreme Court is contrary to or an
unreasonable application of clearly established Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). It is clearly
established that a sentencer may not “refuse to consider, as a
matter of law, any relevant mitigating evidence.” Eddings v.
Okla., 455 U.S. 104, 114 (1982) (italics in original); see also
Lockett v. Ohio, 438 U.S. 586, 604 (1978). While the
sentencer “may determine the weight to be given relevant
mitigating evidence,” it “may not give it no weight by
excluding such evidence from [its] consideration.” Eddings,
455 U.S. at 114–15. Applying Lockett and Eddings, the
Supreme Court held that a state cannot adopt a “causal nexus”
rule, that is, a rule precluding a sentencer from considering
mitigating evidence unless there is a causal nexus between
that evidence and the crime. Tennard v. Dretke, 542 U.S.
 POYSON V. RYAN 45

274, 287 (2004). 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) overruled on other grounds by
McKinney II, 813 F.3d at 819.

In this case, the Arizona Supreme Court stated only that
it accorded no mitigating weight to Poyson’s evidence of
mental health and an abusive childhood. State v. Poyson, 198
Ariz. 70, 81–82 (2000). Before McKinney II, we held that
this decision was not an unreasonable application of Lockett,
Eddings, and Tennard because we could not presume that the
Arizona Supreme Court had refused to consider the mental
health and abusive childhood evidence as a matter of law.
See Poyson v. Ryan, 711 F.3d 1087, 1090 (9th Cir. 2013).
Rather, as instructed by the Supreme Court, we adopted the
“presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002); see Poyson,
711 F.3d at 1099.

McKinney II flipped this presumption. It held that we
must presume the Arizona Supreme Court applied the
unconstitutional causal nexus test between 1989 and 2005,
even when, as here, the court expressly discussed the weight
of the evidence. 813 F.3d at 803, 809, 816. This reasoning
is contrary to Visciotti, as the McKinney II dissent made clear.
See McKinney II, 813 F.3d at 827–850 (Bea, J., dissenting).
No further elaboration of this error is needed.

II

I write separately to highlight McKinney II’s second error:
its conclusion that a causal nexus error has a “substantial and
46 POYSON V. RYAN

injurious effect” on a state court’s decision. 813 F.3d at
822–23.

A

Under Brecht, even if a state court unreasonably errs in
applying Supreme Court precedent, a federal court may not
provide habeas relief unless the error had a “substantial and
injurious effect.” 507 U.S. at 623. “There must be more than
a ‘reasonable possibility’ that the error was harmful.” Davis
v. Ayala, 135 S. Ct. 2187, 2198 (2015) (quoting Brecht,
507 U.S. at 637). Rather, a “court must find that the
defendant was actually prejudiced by the error.” Id. (quoting
Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per
curiam)). Even an Eddings error may be harmless.
Greenway v. Ryan, 866 F.3d 1094, 1100 (9th Cir. 2017)
(per curiam).

In determining that the Arizona Supreme Court’s
presumed causal nexus error in McKinney I was prejudicial,
McKinney II failed to provide a reasoned or reasonable
application of Brecht. Instead, without any meaningful
analysis, McKinney II conclusorily held that the evidence
presumed excluded under Arizona’s presumed causal nexus
test “would have had a substantial impact on a capital
sentencer who was permitted to evaluate and give appropriate
weight to it as a nonstatutory mitigating factor.” McKinney
II, 813 F.3d at 823. Therefore, McKinney II held, the Arizona
Supreme Court’s “application of the test had a ‘substantial
and injurious effect or influence’ on its decision to sentence
[the defendant] to death.” Id. at 823–24 (quoting Brecht,
507 U.S. at 623). In reaching this conclusion, McKinney II
came close to enunciating a per se rule that when a state
 POYSON V. RYAN 47

court’s application of a causal nexus test excludes mitigating
evidence, such an error will not be harmless.

Such a quasi per se rule may be plausible when the
sentencer in a particular case is a jury. If a state rule excludes
certain mitigating evidence from the jury’s consideration as
a matter of law, either the evidence will not be presented to
the jury or the jury will be instructed to disregard it if they
find no causal nexus. Because we presume a jury follows its
instructions, Penry v. Johnson, 532 U.S. 782, 799 (2001), and
a jury generally does not give reasons for its decision, it is
reasonable to presume that the jury could not meaningfully
consider even strong mitigating evidence in reaching its
verdict if it were excluded under a causal nexus rule, see
Abdul-Kabir v. Quarterman, 550 U.S. 233, 255 (2007). A
court could determine that strong mitigating evidence which
was excluded from consideration “would have had a
substantial impact on a capital sentencer who was permitted
to evaluate and give appropriate weight to it as a nonstatutory
mitigating factor.” McKinney II, 813 F.3d at 823.
Accordingly, in the absence of other factors (such as the
presence of aggravating factors that “overwhelmingly
outweighed” the mitigating evidence, see Greenway, 866
F.3d at 1100), an Eddings error could have a substantial and
injurious effect.

But the quasi per se rule adopted by McKinney II is
entirely implausible when the sentencer is a state supreme
court. Unlike a jury, a state supreme court has the authority
to review and consider all the evidence in the record; this is
particularly important, when as in Arizona, the state supreme
court “reviews capital sentences de novo, making its own
determination of what constitute legally relevant aggravating
and mitigating factors, and then weighing those factors
48 POYSON V. RYAN

independently.” McKinney II, 813 F.3d at 819 (citing Ariz.
Rev. Stat. Ann. § 13-755). A state supreme court’s decision
that certain categories of evidence are not mitigating is
effectively the court’s conclusion that such evidence does not
merit much weight. Just like a jury, a state supreme court can
reasonably conclude that if a defendant’s mental impairments
did not play a part in causing the defendant to commit a brutal
offense, the impairments do not mitigate the defendant’s
behavior.

A state supreme court’s conclusion about the mitigating
weight of various types of evidence does not have the effect
of excluding evidence as a matter of law. Nor does such a
conclusion preclude a state supreme court from weighing the
evidence differently in a different case. While a jury must
follow instructions, the state court is free to disregard its
instructions to itself because a state supreme court may
always revisit its precedent. As the Arizona Supreme Court
has explained, “while we should and do pay appropriate
homage to precedent, we also realize that we are not prisoners
of the past.” Lowing v. Allstate Ins. Co., 176 Ariz. 101, 107
(1993) (quoting Wiley v. The Indus. Comm’n of Ariz.,
174 Ariz. 94, 103 (1993)). Indeed, even McKinney II
acknowledged that by the mid-2000s, the Arizona Supreme
Court had stopped applying the precedent that McKinney II
presumed compelled the use of a causal nexus test. 813 F.3d
at 817.

Finally, unlike a jury, a state supreme court generally
explains its reasons, and so may articulate its conclusion that
defendant’s impairments merited little or no mitigating
weight. See Greenway, 866 F.3d at 1100. Where a state
supreme court has reached a reasoned conclusion that
aggravating circumstances outweigh mitigating evidence in
 POYSON V. RYAN 49

a particular case, there does not seem to be a reasonable
possibility that the state supreme court would reach a
different result merely because a federal court announces that
the state court has secretly maintained an unconstitutional
causal nexus rule all along. See id.

B

Because McKinney II failed to distinguish between a state
supreme court and a jury, its Brecht analysis fails.

In McKinney I, the Arizona Supreme Court explained that
it “conducts a thorough and independent review of the record
and of the aggravating and mitigating evidence to determine
whether the sentence is justified, . . . consider[ing] the quality
and strength, not simply the number, of aggravating or
mitigating factors.” 185 Ariz at 578. In its opinion, the
Arizona Supreme Court reviewed the defendant’s evidence of
childhood abuse and post-traumatic stress disorder (PTSD).
Id. at 587. It determined that the judge had fully considered
evidence from several witnesses that defendant had “endured
a terrible childhood,” as well as the PTSD diagnosis. Id. But
the court held that “a difficult family background, including
childhood abuse, does not necessarily have substantial
mitigating weight absent a showing that it significantly
affected or impacted the defendant’s ability to perceive,
comprehend, or control his actions.” Id. After considering
the defendant’s abusive childhood and its impact on his
behavior and ability to conform his conduct, the Arizona
Supreme Court found there was no error in determining that
the evidence of childhood abuse was “insufficiently
mitigating to call for leniency.” Id.
50 POYSON V. RYAN

In light of the Arizona Supreme Court’s reasoned
consideration and weighing of the mitigating evidence, there
was no basis for concluding that this same evidence would
have a different impact – let alone a substantial impact – on
the same court on resentencing simply because a federal court
provides a reminder that Eddings precludes a sentencer from
applying the causal nexus rule. McKinney II, 813 F.3d at
823–24. Brecht does not permit “mere speculation” about the
potential prejudice to a defendant. Davis, 135 S. Ct. at 2198
(quoting Calderon 525 U.S. at 146). Because there is not a
reasonable possibility that the presumed legal error
influenced the Arizona Supreme Court, or have more than a
slight effect, the sentence should stand. See Kotteakos v.
United States, 328 U.S. 750, 764 (1946); Davis, 135 S. Ct. at
2198. McKinney II erred in ruling otherwise.

III

Because we are bound by McKinney II’s erroneous
application of Brecht, its error infects this appeal as well. In
our case, the Arizona Supreme Court considered Poyson’s
mitigating evidence regarding his mental health and abusive
childhood, but stated merely that it accorded these factors “no
mitigating weight.” Poyson, 198 Ariz. at 81–82. On the
other hand, the Arizona Supreme Court found that the
evidence supported aggravating circumstances of
(1) pecuniary gain, (2) especially cruel, heinous, or depraved
murder, and (3) multiple homicide. Id at 78–79. Based on its
findings, the court upheld Poyson’s death sentence. Id at 82.
The court did so while performing its duty to “independently
review and reweigh the aggravating and mitigating
circumstances in every capital case . . . .” Id. at 81.
 POYSON V. RYAN 51

Here, the Arizona Supreme Court reviewed and
considered Poyson’s mitigating evidence, and balanced it
against the case’s aggravating circumstances. Accordingly,
there is no basis for concluding that our correction of any
presumed Eddings error “would have had a substantial impact
on a capital sentencer who was permitted to evaluate and give
appropriate weight to it as a nonstatutory mitigating factor.”
McKinney II, 813 F.3d at 823. We should therefore conclude
that any presumed causal nexus error was not prejudicial, and
therefore Poyson is not entitled to relief.

Because we are bound by McKinney II (at least for the
time being), we are unable to reach this correct conclusion.
As a result, I reluctantly concur in the majority opinion.