Poyson

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge THOMAS.

OPINION

Robert Alen 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. RApp. 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 Aizona 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 Aizona Supreme Court did not deny Poyson his right to individualized sentencing by applying an unconstitutional causal nexus screening test to potentially mitigating…

concurring in part and dissenting in part:

The Arizona Supreme Court unconstitutionally excluded mitigating evidence from its consideration because the evidence was not causally related to the crimes. As a result, Poyson was deprived of his right to an individualized capital sentencing determination under the Eighth and Fourteenth Amendments. Penry v. Lynaugh (Penry I), 492 U.S. 302, 317 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002); Eddings v. Oklahoma, 455 U.S. 104, 110-12 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978). Because the majority’s contrary conclusion cannot be reconciled with controlling Supreme Court precedent, I respectfully dissent.

I

“[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Lockett, 438 U.S. at 604 , 98 S.Ct. 2954 (alteration…