Poyson

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 bane. 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.

Just how obvious does a state court’s constitutional error have to be when a *1188 man’s life is on the line? According to the panel majority, indisputably obvious, which is “beyond a reasonable doubt” stood on its…

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…