916 F.3d 1262

TALLMAN, Circuit Judge, dissenting:
The court declares that Christopher Spreitz's death sentence should be vacated because, applying de novo review, the sentencing court and the Arizona Supreme Court violated Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and that this error was not harmless. I respectfully dissent.
First, the record does not establish that either court unconstitutionally refused to consider relevant mitigating evidence. They were simply not persuaded by it. What the record clearly shows is the Arizona courts did not find that Spreitz's proffered evidence outweighed the aggravating factor of cruelty in the way by which he brutally murdered Ruby Reid. Second, even if we determined that the Arizona courts did violate Eddings , Spreitz cannot show that this error had a "substantial and injurious effect or influence" on his ultimate sentence. Brecht v. Abrahamson , 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Given the savage brutality of his crimes and the weakness of all the mitigation evidence he presented, any remand for a redetermination of the appropriate penalty ought to result in the same decision.
Nonetheless, the majority attempts unsuccessfully to navigate the course that Spreitz's Eddings claim requires him to sail to warrant federal habeas relief. In doing so, the majority has once again foundered on the shoals of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), specifically 28 U.S.C. § 2254 -where so many of our prior habeas corpus decisions are wrecked-failing to afford the respect due the decisions of our sister state courts and taunting the Supreme Court for another capsizing in lieu of safe passage.
I
We review the Arizona post-conviction relief (PCR) court's decision because it is the last reasoned state court decision on Spreitz's Eddings claim. See Barker v. Fleming , 423 F.3d 1085, 1091 (9th Cir. 2005). Under AEDPA we first must decide the level of deference to give to that decision by determining whether it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. § 2254(d)(1).
I do not quarrel with the majority's determination that the PCR court held a mistaken view of what Eddings requires, and that we therefore must review Spreitz's Eddings claim de novo. See Castellanos v. Small , 766 F.3d 1137, 1146 (9th Cir. 2014). However, "we may not grant habeas relief simply because of [the PCR court's] § 2254(d)(1) error ...." Frantz v. Hazey , 533 F.3d 724, 735 (9th Cir. 2008) (en banc); see also id. at 728, 735-37 (explaining our "approach to reviewing state court decisions that rely on legal principles contradicting clearly established Supreme Court law but do not necessarily reach the wrong result").
On de novo review, Spreitz can meet neither of the two requirements to obtain habeas relief on his Eddings claim. First, he cannot demonstrate that the state sentencing courts actually violated Eddings . And second, even if there was a violation, he cannot show that any Eddings error by those state courts was prejudicial under Brecht .
II
Spreitz's Eddings claim rests in large part on the erroneous assumption that the sentencing court and the Arizona Supreme Court failed to consider his history of alcohol and substance abuse, unrelated to the offense, as non-statutory mitigation when determining his sentence. He contends that, by failing to consider all mitigating circumstances, the state courts violated Eddings , which provides that in capital cases "the sentencer may not refuse to consider or be precluded from considering 'any relevant mitigating evidence.' " Skipper v. South Carolina , 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (quoting Eddings , 455 U.S. at 114, 102 S.Ct. 869 ). Eddings also provides that the sentencer "may determine the weight to be given relevant mitigating evidence." 455 U.S. at 114-15, 102 S.Ct. 869.
Recently, we adopted an erroneous presumption that the Arizona Supreme Court repeatedly violated the dictates of Eddings by "consistently" applying an unconstitutional causal nexus test to all capital cases between 1989 and 2005. See McKinney v. Ryan , 813 F.3d 798, 803 (9th Cir. 2015) (en banc), cert. denied , --- U.S. ----, 137 S.Ct. 39, 196 L.Ed.2d 197 (2016). "We did not say, however, that the Arizona [Supreme Court] always applied it." See Greenway v. Ryan , 866 F.3d 1094, 1095 (9th Cir. 2017) (per curiam). Notably, in listing the cases in which the Arizona courts erroneously applied the causal nexus test, McKinney did not include Spreitz's case. See 813 F.3d at 815-16, 824-26. And in McKinney , our holding resolved only the "precise question" whether the state court in that specific case had applied the causal nexus test. Id. at 804 ; see also Hedlund v. Ryan , 854 F.3d 557, 586 n.22 (9th Cir. 2017) ("We express no opinion as to how to apply McKinney in future Arizona capital cases from the suspect time period."). Each case must be reviewed on its unique facts. We therefore must examine the state court decisions in Spreitz's case to determine whether they properly took into account all mitigating factors.
A
At all relevant times in this case, the operative Arizona death penalty statute required a sentencing court to "impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in [the statute and determines] that there are no mitigating circumstances sufficiently substantial to call for leniency." Ariz. Rev. Stat. § 13-703(E) (1993) (current version at Ariz. Rev. Stat. § 13-751(E) (2012)). Arizona law provided five statutory mitigating factors, see § 13-703(G), including a modified form of diminished capacity: "The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution." Id. § 13-703(G)(1). Even our en banc court acknowledged, "When applied solely in the context of statutory mitigation under § 13-703(G)(1), the causal nexus test does not violate Eddings. " McKinney , 813 F.3d at 810.
But Arizona law also provided for consideration of catch-all, non-statutory mitigating evidence that encompassed "any factors proffered by the defendant or the state that 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." Ariz. Rev. Stat. § 13-703(G). The dictates of Eddings apply to such non-statutory mitigating evidence. See McKinney , 813 F.3d at 810 ("When applied in the context of nonstatutory mitigation, the causal nexus test clearly violates Eddings ."). Lastly, Arizona law requires the Arizona Supreme Court to "independently review the trial court's findings of aggravation and mitigation and the propriety of the death sentence." Ariz. Rev. Stat. § 13-703.01(A) (1994) (current version at Ariz. Rev. Stat. § 13-755(A) (2009)).
B
Here, Spreitz cannot show that the sentencing judge, the Honorable William N. Sherrill, violated Eddings in determining Spreitz's sentence. At sentencing, Spreitz submitted a memorandum that specifically discussed his history of substance abuse and cited Eddings ; defense psychologist Dr. Todd C. Flynn provided the court with a psychological evaluation report and testimony specifically discussing Spreitz's history of substance abuse as both statutory and non-statutory mitigating factors; and Judge Sherrill differentiated between the two types of mitigation and ultimately decided that the mitigating evidence did not outweigh the aggravating factor of cruelty based on how Spreitz murdered Ms. Reid.
In his written judgment, Judge Sherrill acknowledged that "many factors have been submitted in mitigation." Among the mitigating evidence, he observed that Spreitz "in his life turned to substance abuse-alcohol and some suggestion he was using cocaine and other drugs"-and that Spreitz's "history of intoxication [was] longstanding." He also found that Spreitz "had been abusing substances for close to ten years of his life." Judge Sherrill's discussion of Spreitz's history of substance abuse unrelated to the crime establishes that he considered that evidence in his sentencing decision. See Williams v. Stewart , 441 F.3d 1030, 1057 (9th Cir. 2006) (stating that a sentencing court does not violate Eddings where it is clear that "the sentencing court considered all relevant mitigating evidence that was offered").
There is an important distinction between Judge Sherrill's consideration of Spreitz's evidence of his long-term substance abuse, and Judge Sherrill's subsequent findings regarding the weight he ultimately decided to give that evidence. After discussing Spreitz's proffered mitigating evidence, Judge Sherrill correctly observed that the issue was, in weighing the imposition of capital punishment, "whether any of these mitigating circumstances, individually or cumulatively, can balance or outweigh the aggravating circumstances." And, he finally determined that "the mitigating circumstances [were] not sufficient to balance the aggravating circumstances, nor [were] they sufficiently substantial to call for leniency." In reaching that conclusion, Judge Sherrill specified that he did "not believe that intoxication [was] any sort of mitigating circumstance." (Emphasis added.) One should fairly read that conclusion to mean that Spreitz's long history of substance abuse was neither a statutory nor a non-statutory mitigating factor "sufficiently substantial to call for leniency." Ariz. Rev. Stat. § 13-703(E).
Under Eddings , Judge Sherrill was free to conclude that Spreitz's mitigating evidence, whether statutory or nonstatutory, simply did not warrant leniency given the aggravating circumstance of how Spreitz cruelly murdered Ruby Reid. See Mann v. Ryan , 828 F.3d 1143, 1159-60 (9th Cir. 2016) (holding that defendant "failed to show that the mitigating circumstances he had presented," including a history of substance abuse, "outweighed the aggravating circumstances of his crimes"), cert. denied , --- U.S. ----, 137 S.Ct. 1091, 197 L.Ed.2d 201 (2017), --- U.S. ----, 137 S.Ct. 1205, 197 L.Ed.2d 250 (2017) ; Henry v. Ryan , 720 F.3d 1073, 1090 n.11 (9th Cir. 2013) (recognizing that "historical alcoholism might [be] considered aggravating as well as mitigating, depending on the perspective of the sentencing court"). "It is sufficient that a sentencing court state that it found no mitigating circumstances that outweigh the aggravating circumstances." Williams , 441 F.3d at 1057 (quotation omitted).
Eddings also did not prevent Judge Sherrill from giving less weight to Spreitz's substance abuse history based on a lack of nexus to the murder. See Hedlund , 854 F.3d at 587 n.23 (stating that under Eddings , "a court is free to assign less weight to mitigating factors that did not influence a defendant's conduct at the time of the crime"); Styers v. Ryan , 811 F.3d 292, 298-99 (9th Cir. 2015) (holding that the Arizona Supreme Court did not violate Eddings in assigning little weight to the petitioner's PTSD in the absence of a causal connection to the crime), cert. denied , --- U.S. ----, 137 S.Ct. 1332, 197 L.Ed.2d 525 (2017). Nor did Eddings prevent Judge Sherrill from assigning no weight to Spreitz's long-term substance abuse unrelated to the offense, so long as Judge Sherrill considered that evidence, which the record shows he definitely did. See Williams , 441 F.3d at 1057 ("Once mitigating evidence is allowed in, a finding that there are 'no mitigating circumstances' does not violate the Constitution."); Ortiz v. Stewart , 149 F.3d 923, 943 (9th Cir. 1998) ("[T]he sentencing court did not refuse to consider mitigating evidence; it considered the evidence and found it inadequate to justify leniency. That assessment did not violate the Constitution."), overruled in part on other grounds by Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
In addition to the above findings, Judge Sherrill also added that he did not "believe that [Spreitz's] substance abuse or intoxication impaired [his] ability and capacity to appreciate the wrongfulness of his conduct to any significant degree" under § 13-703(G)(1). At the time, Arizona courts were required by law to examine whether evidence of alcohol and drug use bore a causal connection to the crime. Ariz. Rev. Stat. § 13-703(G)(1) (requiring the sentencer to consider leniency if the defendant proved that his "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"). And, there is no question that Spreitz pursued a mitigation strategy at sentencing that attempted to link his long-term substance abuse with the kidnap/murder to show statutory mitigation under § 13-703(G)(1).
For example, Spreitz's sentencing memorandum stated that Dr. Flynn's insights about him were of "the nature, type and character contemplated by A.R.S. Section 13-703(G)(1)," and that "Dr. Flynn's report [was], indeed, relevant and should be considered by the Court as statutory mitigating circumstances." Dr. Flynn's report and expert testimony went to great lengths to argue that Spreitz's alcohol abuse was "very strongly correlated with violent behavior ...." Judge Sherrill could not respond to Spreitz's argument that § 13-703(G)(1) called for leniency without analyzing whether Spreitz had shown a connection between his substance abuse and the murder. We cannot infer from that causal nexus analysis that Judge Sherrill flatly refused to consider any evidence of substance abuse that was not causally related to the crime.
Rather, this record shows that Judge Sherrill constitutionally applied a causal nexus test in the context of an Arizona statutory mitigating factor, § 13-703(G)(1). See McKinney , 813 F.3d at 810 ("When applied solely in the context of statutory mitigation ... , the causal nexus test does not violate Eddings. "). Judge Sherrill's other statements repeatedly demonstrate that he understood Eddings ' mandate and considered all of Spreitz's proffered mitigating evidence, but ultimately found that evidence insufficient to warrant leniency. We are in the same situation here that recently confronted our Court in Hedlund . See 854 F.3d at 591 (Bea, J., concurring) ("[Although] Judge Sheldon constitutionally applied a causal-nexus test in the context of an Arizona statutory mitigating factor[, § 13-703(G)(1), that] statement does not show that Judge Sheldon excluded mitigating evidence from his consideration, and Judge Sheldon's other statements repeatedly demonstrate otherwise.").
Nor does the record before us support the conclusion that Judge Sherrill failed to consider evidence of Spreitz's long-term substance abuse as a non-statutory mitigating factor. What we can say for sure is that he was not persuaded by that evidence. Judge Sherrill listened to testimony and arguments at trial and in the penalty phase, read everything submitted, and then deliberated for three days before concluding that Spreitz's mitigation evidence was not sufficient to outweigh the evidence in aggravation warranting death. There is no Eddings error here.
C
Similarly, in its "detailed independent review" of Spreitz's sentence, the Arizona Supreme Court "examined the entire record to weigh and consider the aggravating and mitigating circumstances." State v. Spreitz , 190 Ariz. 129, 945 P.2d 1260, 1278 (1997). Consistent with Eddings , the Arizona Supreme Court recognized "that the sentencing judge must consider any aspect of the defendant's character or record and any circumstance of the offense relevant to determining whether the death penalty should be imposed." Id. at 1279 (quotation omitted). And, it recognized "that the weight accorded such evidence is within the sentencing judge's discretion." Id. ; see Greenway , 866 F.3d at 1097 (citing similar language in the Arizona Supreme Court's review of a capital sentence to conclude that the court "did not reject any mitigating factor, as a matter of law, on the theory that it was not related to the commission of the crime").
In that review, the Arizona Supreme Court specifically observed that the "record demonstrates defendant's longtime substance abuse problems." Spreitz , 945 P.2d at 1280. Nonetheless, the court found that Spreitz's "general problems with substance abuse [were] not essential to [its] decision" because, ultimately, "the aggravating circumstance of especial cruelty in [Spreitz]'s murder of Ruby Reid outweigh[ed] all factors mitigating in favor of leniency." Id. at 1280, 1282. The Arizona Supreme Court thus rejected, on the merits, Spreitz's argument that his long-term substance abuse constituted either a statutory or nonstatutory mitigating factor warranting leniency in his case. There is no mitigation evidence it refused to consider.
To the extent that the majority cites Poyson v. Ryan , 879 F.3d 875 (9th Cir. 2018), for the proposition that McKinney , 813 F.3d at 802-03, adopts a per se rule that the Arizona Supreme Court applied an unconstitutional causal nexus test in all capital cases over a 15-year period, I fully agree with Judge Ikuta's reluctant concurrence in Poyson . 879 F.3d at 897-900. McKinney was wrongly decided and flips the "presumption that state courts know and follow the law." Id . at 897-98 (citing Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) ). The record here rebukes even the McKinney presumption and in that respect is factually distinguishable from both McKinney and Poyson .
The majority nonetheless concludes that the Arizona Supreme Court's use of the term "not essential" proves that the court "require[d] that Spreitz establish a causal connection between his longstanding substance abuse and the murder before considering and weighing the evidence as a nonstatutory mitigating factor." Op. at 1273, 1275. Not so. We can reasonably interpret "not essential" to mean inconsequential, which we have previously defined in a similar context as having little effect on the outcome. See Landrigan v. Stewart , 272 F.3d 1221, 1230 (9th Cir. 2001) ("At any rate, any error in failing to consider Landrigan's use of alcohol and drugs would have been inconsequential; it would have had no effect whatsoever on the outcome."), adopted sub nom. Landrigan v. Schriro , 501 F.3d 1147 (9th Cir. 2007) (en banc).
The majority reasons that, unlike the Arizona Supreme Court's consideration of Spreitz's substance abuse history unrelated to the murder, "when the court considered other mitigating factors, it specifically discussed the weight it would give to those factors ...." Op. at 1276-77. But the law has never imposed an obligation on the sentencer to explicitly disclose the value it assigns to every piece of mitigating evidence. "The U.S. Supreme Court has 'never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.' " Styers , 811 F.3d at 298 (quoting Kansas v. Marsh , 548 U.S. 163, 175, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) ). Nor did McKinney abrogate the principle that a sentencing court is not required to "itemize and discuss every piece of evidence offered in mitigation." Jeffers v. Lewis , 38 F.3d 411, 418 (9th Cir. 1994) (en banc). "We have determined that a sentencing court need not specifically discuss each individual item of mitigating evidence so long as it appears to have considered all relevant evidence." Ortiz , 149 F.3d at 943. This is particularly important when reviewing Eddings claims because otherwise we could infer that a sentencing court refused to consider any piece of evidence to which it did not expressly assign a value, even though it sufficiently discussed that proffered evidence. That is not the law.
For example, in Jeffers , our en banc court held that the state court's "failure to list and discuss each item of evidence [that the defendant] offered in mitigation" did not demonstrate that the "court neglected to consider all of his mitigation evidence." 38 F.3d at 417-18. Instead, we held that there was no clear requirement under either Arizona law or the federal Constitution that the sentencer itemize and discuss each piece of evidence offered in mitigation. Id. at 418. And, we held that the sentencing court there clearly considered all such evidence. Id. In addition, a sentencing court "need not exhaustively analyze each mitigating factor as long as a reviewing federal court can discern from the record that the state court did indeed consider all mitigating evidence offered by the defendant." Moormann v. Schriro , 426 F.3d 1044, 1055 (9th Cir. 2005) (quotation omitted); see also Lopez v. Schriro , 491 F.3d 1029, 1039 (9th Cir. 2007) (observing that there is no "clearly established Supreme Court precedent setting forth the record the sentencing court must make in order to permit sufficient appellate review"
(quotation omitted)). We can easily make that determination here.
The majority also focuses on the Arizona Supreme Court's additional finding that Spreitz "was [not] impaired by alcohol consumption to an extent that it interfered with his 'capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.' " Op. at 1270 (quoting Spreitz , 945 P.2d at 1280-81 ). But this statement does not mean that the Arizona Supreme Court refused to consider Spreitz's long-term substance abuse unrelated to the murder. On the contrary, as the majority recognizes, the Arizona Supreme Court's "decision ... suggest[ed] the court knew, understood, and applied the law with respect to Eddings ." Id. at 1277. For example, the Arizona Supreme Court stated: "In our review, we have been mindful that the sentencing judge must consider any aspect of the defendant's character or record and any circumstance of the offense relevant to determining whether the death penalty should be imposed." Spreitz , 945 P.2d at 1279 (quotations omitted) (emphasis added). After independently "weighing the mitigating circumstances both individually and cumulatively against the aggravating circumstance," it ultimately found that "the aggravator of especial cruelty outweighed all other circumstances." Id. at 1280. Those findings do not violate Eddings . They reflect a careful consideration of all of the evidence, ultimately concluding that the death sentence was warranted here despite what Spreitz offered in mitigation. Thus, there was no Eddings violation.
III
Even if we were to determine that the state courts committed Eddings error by failing to consider Spreitz's long-term substance abuse unrelated to the offense, Spreitz cannot show that this error was prejudicial because the violent manner in which he abducted and murdered Ruby Reid trenchantly outweighed all evidence proffered in mitigation. See Greenway , 866 F.3d at 1100 (denying habeas relief on petitioner's Eddings claim because the Arizona Supreme Court's Eddings error was harmless). Thus, even assuming that the state courts unconstitutionally excluded that evidence, their factual determinations make clear that the evidence would have been entitled to little mitigating weight in their ultimate sentencing determinations.
"The harmless-error standard on habeas review provides that 'relief must be granted' only if the error 'had substantial and injurious effect or influence in determining the [sentence imposed].' " McKinney , 813 F.3d at 822 (quoting Brecht , 507 U.S. at 623, 113 S.Ct. 1710 ). The United States Supreme Court has distinguished this harmless error standard from the standard applicable to cases on direct review, which require merely a "reasonable possibility" that the error affected the outcome of the proceedings. See Brecht , 507 U.S. at 634-38, 113 S.Ct. 1710 (citing Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). Unlike cases on direct review, "granting habeas relief merely because there is a 'reasonable possibility' that [the] error contributed to the [outcome of the proceedings] is at odds with the historic meaning of habeas corpus." Id. at 637, 113 S.Ct. 1710 (citation and quotations omitted). As such, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. at 634, 113 S.Ct. 1710 (citation and quotations omitted).
In McKinney , we clarified that a state court's Eddings violation is harmless if we can "say[ ] with fair assurance" that "the judgment was not substantially swayed by the error." 813 F.3d at 822 (quoting Kotteakos v. United States , 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ) (emphasis added). On the other hand, an Eddings error is not harmless if we are in "grave doubt" about whether it had a substantial and injurious effect or influence in determining the sentence imposed. Id. (quoting O'Neal v. McAninch , 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) ). McKinney held that the excluded evidence there "was important mitigating evidence" because it was "central to [McKinney's] plea for leniency." 813 F.3d at 823 (emphasis added). It cited Coleman v. Calderon , 210 F.3d 1047 (9th Cir. 2000), where we held that an unconstitutional jury instruction at sentencing was not harmless because "it undermined the very core of Coleman's plea for life." Id. at 1051 (emphasis added).
Here, based on what the Arizona courts repeatedly said, there is no "grave doubt" as to whether any Eddings error substantially influenced or swayed Spreitz's ultimate sentence. The courts at every level consistently found that "the aggravating circumstance of especial cruelty in [Spreitz's] murder of Ruby Reid outweigh[ed] all factors mitigating in favor of leniency." Spreitz , 945 P.2d at 1282. In considering the entire record, the Arizona Supreme Court explained:
We agree with the sentencing judge that defendant's upbringing was subnormal. The record supports the judge's conclusion that defendant's home life was sadly lacking and that his mother's erratic behavior toward defendant inhibited his emotional development and social skills .... Although we recognize defendant's upbringing as a mitigating circumstance, we accord it little weight. While defendant's inadequate upbringing may have contributed to his emotional immaturity and undeveloped humanitarian skills, we concur with defendant's statement at his sentencing hearing that "people that have had as bad a background or worse haven't killed. And I don't want what everyone has said about my background to be an excuse for what's happened."
....
The record demonstrates defendant's longtime substance abuse problems. We note, however, that defendant's general problems with substance abuse are not essential to our decision here. We therefore decline to conclude that defendant was impaired by alcohol consumption to an extent that it interfered with his "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." A.R.S. § 13-703(G)(1)....
[W]e find that defendant expressed remorse for the victim's death on more than one occasion .... We recognize remorse as a nonstatutory mitigating factor .... However, defendant's remorse for his actions does little to counterbalance especial cruelty as a serious aggravating circumstance in Ms. Reid's murder. According to defendant's confession, when he left Ms. Reid in the desert early the morning of May 19, 1989, he did not know whether she was alive or dead. He confessed that he rode his bicycle out to the murder site several days later to see if her body was still there, hoping that it would not be, that she was still alive. We would find defendant's remorse a more compelling mitigating factor if, for example, it had prompted him to report his actions toward Ms. Reid to the authorities.
The sentencing judge found that defendant's ability to appreciate the wrongfulness of his conduct was not impaired on the night of the murder to any significant extent by substance abuse, emotional disorders, situational stress, or by a combination of these. Our review of the record convinces us that the trial court's finding was proper ....
We agree that the record supports the sentencing judge's findings that defendant had no previous adult felony convictions, no prior record of acts of violence, and that defendant is capable of rehabilitation. We also find that the sentencing judge correctly rejected defendant's age of twenty-two as a mitigating circumstance and properly found that his emotional immaturity was not a significant mitigating factor.
After examining the entire record and reweighing the applicable aggravating and mitigating factors, we find that the aggravating circumstance of especial cruelty in defendant's murder of Ruby Reid outweighs all factors mitigating in favor of leniency.
....
We have conducted an independent review of defendant's aggravating and mitigating circumstances as required by A.R.S. section 13-703.01 and find that the mitigating circumstances cumulatively are not sufficiently substantial to warrant leniency in relation to the aggravating circumstance of cruelty.
Id. at 1280-83.
Despite this explanatory language summarizing its analysis of all of the evidence from the sentencing hearing, the majority nonetheless insists that the Arizona Supreme Court refused to consider Spreitz's long-term substance abuse as a non-statutory mitigating factor, and concludes this refusal "had a substantial and injurious effect on [Spreitz's sentence]." Op. at 1278-79. My colleagues reason that "Spreitz's long-term alcohol and substance abuse was important mitigation evidence ... central to his plea for leniency." Id. The record belies that characterization.
A
Unlike McKinney and Coleman , Spreitz's history of substance abuse unrelated to the murder was not "central" to his plea for leniency or at the very core of his plea for life. Instead, Spreitz argued at sentencing that he deserved leniency because of, among other things, (1) his intoxication, age, and emotional immaturity at the time of the crime ; (2) his disruptive childhood; (3) his abusive home environment; (4) his emotionally cold mother; (5) his poor social adjustment; (6) a persistent pattern of rejection; (7) the absence of a healthy role model; (8) a lack of economic and emotional support; (9) his lack of a high school education; (10) the absence of adult convictions and violent behavior; (11) his low risk of future danger; (12) his good character; (13) his good behavior while in jail; and (14) his rehabilitative nature. See, e.g. , Spreitz , 945 P.2d at 1279 ("At sentencing, defendant argued as statutory and nonstatutory mitigating factors: (1) his dysfunctional family life and lack of socialization; (2) a history of alcohol and drug abuse; (3) his expressions of remorse; (4) his impaired capacity to appreciate the wrongfulness of his conduct, A.R.S. § 13-703(G)(1) ; (5) his good behavior while incarcerated; (6) his lack of adult convictions; (7) no prior record of violent tendencies; and (8) his age at the time of the murder, A.R.S. § 13-703(G)(5)."). Specifically, Spreitz's sentencing memorandum posited that:
The Defendant's background and upbringing are ripe with numerous mitigating factors:
1. He faced a disruptive middle childhood.
2. Punitive and abusive behavior toward [Spreitz].
3. An emotionally cold mother.
4. Poor social adjustment with peers.
5. No healthy role model.
6. Drug and alcohol abuse.
7. [That] Spreitz was forced to live on his own without economic or emotional support.
8. Persistent pattern of rejection.
In addition, Spreitz devoted a large portion of his sentencing memorandum to explaining how his childhood abuse, dysfunctional upbringing, developmental immaturity, and emotional problems contributed to his commission of the murder:
For Chris, as with other chronically rejected, neglected and devalued children, there was no escaping [his] deep seated anger and resentment. The desperate, quiet, battle wrestling inside of Chris as he sought to please [his mother] and was rejected could not be numbed forever by alcohol. His developmental failure included the non-development of personal insight and conflict resolution skills. He could not control, understand or deal with the anger. Numbing by use of alcohol and trysts with older women were but stop-gap measures. His fragile facade was ready to crack. Each failure brought Chris closer to the edge. He crossed that point with the victim. The result was inevitable [as] Chris had no way to compensate for a lifetime of misdirected development, through a dysfunctional life and family, especially when combined with arrested and distorted development and alcoholism ....
Chris's background is a relevant and powerful mitigating factor with a determinative factor culminating in the instant offense. When a person's background has an impact [on] his behavior beyond his control, as here, such a circumstance is clearly mitigation entitled to great [deference]. Add to that the family and abusive environment and [this] mitigation clearly outweighs any possible claim of aggravation .... The situational stress build up, including rejection by his mother, his girlfriend, and again that night, coupled with poorly developed coping skills and alcohol certainly mitigates the act.
(Emphasis added.)
But the majority nonetheless wishes to recast the defense theories and reweigh the facts, as if we were conducting a direct review. The majority singles out Dr. Flynn's observations that (1) Spreitz began drinking alcohol and smoking marijuana at age twelve or thirteen, (2) Spreitz drank steadily by age fifteen, (3) Spreitz's "alcohol abuse continued to intensify after he left home," (4) Spreitz's alcoholism reached the level of physical dependence, and (5) a "variety of persons" described Spreitz as a heavy drinker, as intoxicated most of the time, and as having blackouts while drinking alcohol. Those observations, however, do not make Spreitz's evidence of his longstanding alcoholism, with no connection to the crime, central to his plea for leniency.
Instead, Spreitz presented his long-term substance abuse primarily to establish the statutory mitigating factors under § 13-703(G)(1) and § 13-703(G)(5). As to § 13-703(G)(1), Dr. Flynn repeatedly emphasized that Spreitz's lifetime of substance abuse contributed to his murder of Ms. Reid. Notably, Dr. Flynn's report opined that:
The research on violent behavior shows a strong correlation with alcohol intoxication. Given [Spreitz's] history, I can see a perceived rejection by two women in the same evening as especially disturbing to him, particularly when intoxicated, to the point at which he lost aggressive control, disinhibited by the alcohol intoxication ....
My best guess is that he was drunk, hurt and angry at the unwillingness of his girlfriend to let him into her apartment, startled into an alcoholic rage at the angry confrontation by the victim, and ended up venting the years of stored up rage at her.
And although several factors that normally predict violence were not present, there is alcoholism -one of the strongest correlates of violent behavior. And, there is the emotional, sexual maladjustment that comes from his lifetime of misdirected development in a dysfunctional family, combined with arrested and/or distorted adult development because of the alcoholism ....
1. Given the history of alcoholism ... a significant but unknown degree of alcohol intoxication is likely. Alcohol intoxication has a well-documented disinhibiting effect which frequently includes losses of control of angry emotions and aggressive behavior.
2. [Spreitz's] history strongly suggests years of early experiences likely to have caused a build-up of pent-up angry, aggressive feelings toward women generally (and older women especially) which may have burst forth with uncontrollable intensity with or without alcohol intoxication. Only trivial provocation is required for this type of aggression explosion, termed an Intermittent Explosive Disorder by DSM-IV.
3. Still more likely is that a combination of 1. and 2. above contributed to an uncontrollable outburst of aggression.
(Emphasis added.)
Dr. Flynn also gave extensive testimony on how Spreitz's substance abuse contributed to the impairment of his mental state "in terms of conforming his behavior to his understanding of the law and right and wrong generally." At the aggravation-mitigation hearing, Dr. Flynn went to great lengths to opine that Spreitz's alcohol abuse was "very strongly correlated with violent behavior." Dr. Flynn also testified that Spreitz's parents' failure to treat his alcoholism during his teenage years was significant because it increased his violence potential : "[A]lcohol is probably the most common, strongest correlative ... with violent behavior ... , doubling the risk of violent behavior and I think the absence of successful treatment for alcoholism is likely to have been a significant and maybe a sine qua non that went on in this offense." (Emphasis added.)
In light of the evidence presented by Dr. Flynn, it is hard to say that the Arizona courts did not consider the effect of both his intoxication and his history of substance abuse as required under § 13-703(G)(1). They just weren't persuaded by it. Rather, they reasonably and properly found that Spreitz's history of alcohol abuse was not sufficiently influential on his ability to conform his conduct to the law or his ability to appreciate the consequences at the time he viciously murdered Ms. Reid. Contrary to the majority's suggestion, Op. at 1275-76, it cannot be said that the Arizona courts never considered his longstanding alcoholism under § 13-703(G)(1) in the first place.
As to the statutory mitigating factor under § 13-703(G)(5), Dr. Flynn explained how Spreitz's history of substance abuse contributed to his emotional immaturity: "When you spend most of your teenage years drunk or stoned, it has not only been my observation in criminal populations but my observations clinically ... that virtually all heavily drugged teenagers [are] socially and emotionally immature as having substance abuse problems." (Emphasis added.) Dr. Flynn also testified that the lack of a treatment effort in Spreitz's home to deal with his alcoholism was significant because it showed a lack of proper supervision and parenting during his developing years, which contributed to his emotional immaturity under § 13-703(G)(5) :
[The lack of any treatment effort for Spreitz's alcoholism] is consistent with an uncaring parent to have a child which is stealing booze out of the house from the early teenage years, who shows up drunk in his early teenage life and everybody in the person's life recognizes there's a serious alcoholic problem and yet the parent either does one of two things, doesn't care enough to notice or doesn't care enough to do anything about it. That's important in and of itself in my opinion from the standpoint of an evaluation of parenting.
Thus, where Spreitz did not present his long-term substance abuse to explain his conduct at the time of the murder under § 13-703(G)(1), he did so to plead for leniency based on his emotional immaturity under § 13-703(G)(5). Any evidence that Spreitz presented of his long-term substance abuse as non-statutory mitigation was cursory and only ancillary to the considerable evidence he adduced to explain how his past addiction affected his conduct and immaturity at the time of the murder.
Moreover, the significant evidence presented regarding Spreitz's abusive and dysfunctional childhood, upbringing, and interactions with his mother stands as further support that Spreitz's history of alcohol and substance abuse was not central to his plea for leniency. Dr. Flynn testified to those matters at length:
[Spreitz grew up in] a fully pathological home environment, [which] include[d] physical and emotional neglect, physical abuse and emotional neglect and possibly emotional abuse by the mother according to which there was no hint of acceptance of him in spite of ongoing efforts on his part to please her. In fact of all the people that I interviewed and all the interviews that I read, the only favorable, the only person who had a single favorable thing to say about the mother was Mr. Spreitz himself. From all other persons they described her in the most negative terms. His sister described herself as being saved from the pathological effects of the home by the fact she ran away and was placed in a group home. Mr. and Mrs. Spreitz described most of the mother's behavior in a manner that would be considered pathogenic by anyone who knew anything about psychology and parenting ....
[There is] massive evidence from a psychological point ... that there was a cold uncaring mother who was anything but sensitive to his needs, whom he was never able to please. By this hypothesis it is most common for children so treated to harbor a store of anger, and it is consistent with this train of thought that the anger was breaking down partially by chronicity and partially by series of emotionally unsuccessful relationships with women, a tendency to orient toward older women in the months leading up to the offense[.] [S]hortly before the offense ... there had been a rejection by a current girlfriend .... [T]his by itself and probably especially this under the disinhibiting influence of alcohol possibly result[ed] in an explosion of aggressive behavior especially toward a woman and especially toward an older woman . The recently pent-up rage accumulated over the year aggravated the more recent months which may be considered by the Court to constitute an outburst of behavior that means an inability to conform one's behavior [to the requirements of the law] .
(Emphasis added.)
And, when Judge Sherrill asked Dr. Flynn what he considered were non-statutory mitigating factors in this case, Dr. Flynn responded: "[T]he likely relationship between the alcoholism and the violence generally and this offense specifically and ... the deprived pathogenic home environment [are what] I would consider non-statutory factors." (Emphasis added.) In the face of this record, I am at a loss to understand how my colleagues can say that Spreitz's history of substance abuse as a non-statutory mitigating factor was central to or at the very core of Spreitz's plea for leniency.
B
Two other cases where we have found Arizona courts' Eddings errors to be harmless, Henry v. Ryan , 720 F.3d 1073 (9th Cir. 2013), and Stokley v. Ryan , 705 F.3d 401 (9th Cir. 2012), are instructive here.
1
In Henry , the Arizona courts found a statutory mitigating factor under § 13-703(G)(1) -namely, that "Henry's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired ... because of his consumption of alcohol on the day of the murder." 720 F.3d at 1089-90. Nonetheless, the courts imposed the death penalty because they "agreed that the mitigation was not sufficiently substantial to call for leniency" in light of two aggravating factors. Id. at 1090.
As with Spreitz here, on habeas review, we assumed that the state courts violated Eddings by failing to consider Henry's history of alcohol abuse as a non-statutory mitigating factor. However, we denied habeas relief because Henry failed to show that the Eddings error had a "substantial and injurious effect or influence" on his sentence. Id. at 1087-89 (quoting Brecht , 507 U.S. at 623, 113 S.Ct. 1710 ). We reasoned that, "in imposing the death penalty, the Arizona courts already considered Henry's intoxication at the time of the murder as a mitigating factor" and concluded that it was "not sufficient to call for leniency." Id. at 1090. And:
Given the similar nature of the mitigation, the additional evidence of Henry's historical alcoholism would have had minimal mitigating value. If the state courts concluded that intoxication with a causal connection to the crime was not sufficient to call for leniency, it is highly doubtful that they would have considered alcoholism without a causal connection to be sufficient.
Id.
Similarly, here, the Arizona courts agreed that Spreitz's substance abuse at the time of the offense was not sufficient to call for leniency. In addition, they found that Spreitz could not show statutory mitigation under § 13-703(G)(1) because his "ability to appreciate the wrongfulness of his conduct was not impaired on the night of the murder to any significant extent by substance abuse." Spreitz , 945 P.2d at 1281. The majority does not take issue with these findings. As in Henry , the Arizona courts' consideration of Spreitz's long-term substance abuse unrelated to the offense would have had minimal mitigating value because of its similarity to the evidence already rejected. Henry , 720 F.3d at 1090 ; see also Landrigan , 272 F.3d at 1230 & n.9 (holding that, where the sentencing court rejected the petitioner's "alleged intoxication and past history of drug use as a statutory mitigating factor" and "did not go on to consider them as a nonstatutory mitigating factor," any "error in failing to consider Landrigan's use of alcohol and drugs would have been inconsequential; it would have had no effect whatsoever on the outcome"); Wong v. Belmontes , 558 U.S. 15, 23, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) ("The sentencing jury was thus 'well acquainted' with Belmontes' background and potential humanizing features. Additional evidence on these points would have offered an insignificant benefit, if any at all." (citation omitted)).
The majority thus errs by failing to apply Henry 's reasoning to conclude that any Eddings error was harmless here. See Hart v. Massanari , 266 F.3d 1155, 1172 (9th Cir. 2001) ("[I]f a controlling precedent is determined to be on point, it must be followed."). If direct evidence of substance-induced intoxication on the night of the murder was insufficient to outweigh the aggravated circumstances of the crime, a long history of drug and alcohol abuse would fare no better.
2
In Stokley , we assumed that the Arizona Supreme Court committed Eddings error by failing to consider Stokley's abusive childhood and good behavior in jail because of a lack of causal nexus. 705 F.3d at 403-04. We held, however, that this error was harmless because there were three aggravating circumstances, including that Stokley-like Spreitz-had "committed the offense in an especially heinous, cruel, and depraved manner." Id. at 404. We noted the gruesome details of Stokley's offense, including (1) that he had sexual intercourse with his victims; (2) that the victims' bodies (two young girls) were violently beaten; and (3) that the victims' bodies were dragged to and thrown down a mineshaft. Id. at 405 n.1. We also observed that both the sentencing court and the Arizona Supreme Court consistently determined that "leniency was inappropriate." Id. at 405. We found no likelihood "that, but for a failure to fully consider Stokley's family history or his good behavior in jail during pre-trial incarceration, the Arizona courts would have come to a different conclusion" as to Stokley's sentence. Id.
Although Stokley 's facts were relatively more egregious than the facts here- Stokley involved three aggravating circumstances instead of one and Stokley's victims were under the age of fifteen- Stokley nonetheless informs us that the severity of an aggravating circumstance must be considered when determining whether an Eddings error is harmless. Here, both the sentencing court and the Arizona Supreme Court consistently ruled that leniency was inappropriate because of the especially cruel manner in which Spreitz kidnapped and murdered Ruby Reid. Spreitz , 945 P.2d at 1266, 1278-79 (citing Ariz. Rev. Stat. § 13-703(F)(6) ). The crime scene photographs alone give compelling support to that ruling, showing Ms. Reid's body beaten beyond recognition by heavy rocks. The pathologist underscored the extensive damage to her body revealed on autopsy.
Arizona courts consider five factors in "determining whether a murder was especially heinous, cruel or depraved: (1) relishing the murder, (2) infliction of gratuitous violence, (3) needless mutilation of the victim, (4) senselessness of the crime, and (5) helplessness of the victim." Gulbrandson v. Ryan , 738 F.3d 976, 984 (9th Cir. 2013) (citing State v. Gretzler , 135 Ariz. 42, 659 P.2d 1, 11-12 (1983) (en banc)). "A finding of cruelty is warranted when the defendant inflicts on the victim mental anguish or physical abuse before the victim's death." Spreitz , 945 P.2d at 1278. "Cruelty is found when the victim is conscious at the time of the offense in order to suffer pain and distress." Id. (citation and alterations omitted).
Here, the Arizona courts found that Ms. Reid suffered tremendous mental and physical pain when she was forced into Spreitz's car trunk and transported to the desert where she was beaten, sexually assaulted, and eventually murdered. Id. at 1265, 1278. Judge Sherrill observed: "At the scene of the murder the victim was thoroughly beaten. The autopsy showed, in addition to the death-causing blows to the head, five ribs broken, eighteen bruises and grab marks, internal bruising and bleeding, lacerations[,] and a broken jaw." Spreitz did not confess to kidnapping Ms. Reid, but did admit to beating her as she fought back, removing her clothes, having intercourse with her, and smashing her in the head with a rock when she would not stop yelling. Id. Physical evidence found at the scene of the murder corroborated Spreitz's confession: Ms. Reid's clothing, including her torn brassiere, was strewn in one area of the scene, and photographs of the area vividly depicted drag marks running from that area to the spot where Ms. Reid's body and the bloody rocks were found. According to Spreitz's confession, when he left Ms. Reid lying in the desert on the morning of May 19, 1989, he did not know whether she was still alive or dead. Also significant to Judge Sherrill's finding of mental anguish was that Ms. Reid had defecated in and on her clothing. See id. at 1265, 1278-79.
In its independent review of these facts, the Arizona Supreme Court agreed that Spreitz had murdered Ms. Reid in an especially cruel manner. Id. at 1278. The Arizona Supreme Court highlighted Spreitz's "own admission that he beat her as she fought back and hit her with the rock when she would not stop yelling ," which it found was "clear evidence of [Ms. Reid's] conscious suffering." Id. at 1279. The court found that Spreitz's confession and the physical evidence all pointed to the conclusion that Spreitz "beat and raped [Ms. Reid] in a brutal assault that lasted many minutes before he crushed her skull." Id. My colleagues in the majority do not quarrel with that finding.
Thus, even assuming that the Arizona courts failed to consider Spreitz's evidence of long-term substance abuse unrelated to the crime, it is unlikely their consideration of that evidence would have substantially altered their ultimate decision to sentence Spreitz to death based on the aggravated manner in which Ms. Reid met her death. And we cannot say "with fair assurance" that the sentence they imposed was substantially swayed by their failure to consider that evidence. McKinney , 813 F.3d at 822 (quoting Kotteakos , 328 U.S. at 765, 66 S.Ct. 1239 ).
Further, Eddings allows the Arizona courts "to consider the absence of a causal connection when assessing the quality and strength of [mitigating] evidence." Henry , 720 F.3d at 1090. It does not prevent the Arizona courts from "assign[ing] less weight to mitigating factors that did not influence a defendant's conduct at the time of the crime." Hedlund , 854 F.3d at 587 n.23. The Arizona Supreme Court has recognized this principle in its more recent cases. See, e.g. , State v. Newell , 212 Ariz. 389, 132 P.3d 833, 849 (2006) (en banc) ("We do not require that a nexus between the mitigating factors and the crime be established before we consider the mitigation evidence. But the failure to establish such a causal connection may be considered in assessing the quality and strength of the mitigation evidence." (citation omitted)). Thus, we can confidently say that if Spreitz were resentenced, the Arizona courts would give even less weight to his history of substance abuse unrelated to the crimes in balancing that evidence against what he did to Ruby Reid.
C
The majority cites Henry for the broad proposition that "a 'history of substance abuse [is] substantially mitigating when ... combined with other mitigating evidence.' " Op. at 1279 (emphasis omitted) (quoting Henry , 720 F.3d at 1090 ). But the majority has not offered up any authority that reaches this conclusion under factually-similar circumstances. Indeed, unlike the three cases Henry relies upon in making this statement, Spreitz's defense counsel presented considerable evidence at sentencing of his lifelong history of substance abuse, his mental and emotional problems, and his family dysfunction. Counsel retained Dr. Flynn, a psychotherapist and forensic consultant, who personally evaluated Spreitz, performed psychological assessments, and interviewed people who were familiar with him. Dr. Flynn submitted a report and testified extensively regarding Spreitz's alcohol and drug addictions, his family history of substance abuse, his disruptive childhood, and his emotional problems. Thus, the majority's suggestion that Spreitz's case is comparable to those in which we have found evidence of longstanding substance abuse to be substantially mitigating is misplaced. This is particularly so in light of the horrific way in which Ruby Reid died, the impact of which was not lost on all of the Arizona judges who reviewed this record.
D
Lastly, Spreitz's own arguments on appeal belie the conclusion that his long-term substance abuse unrelated to the crime was central to his plea for leniency. Spreitz argues that whether he "was intoxicated at the time of the murder was critical " to his case, and that "the issue of [his] intoxication [at the time of the crime] was critically important." He contends that he "was highly intoxicated at the time of the murder" and that "this was the primary cause of him committing the murder." And, he urges that there "was ample evidence that [he] was highly intoxicated at the time of the murder and that his intoxication contributed directly to his actions." "This was highly relevant mitigation," he says: "[h]ad the judge heard the evidence described herein, it is highly probable that he would not have sentenced [Spreitz] to death." But the judge did hear all of that evidence. He just didn't buy the argument based on the testimony of officers who interacted with Spreitz before and after he killed Ms. Reid. That credibility determination is not assailable on appeal.
Spreitz's defense theories have shifted on collateral appeal. Contrary to his position in supplemental briefing ordered by this Court post- McKinney , Spreitz does not make any similar arguments about his long-term substance abuse as a non-statutory mitigating factor. Instead, he claims that evidence of his childhood head injuries that his counsel failed to present were vital to his mitigation evidence. Spreitz argues that the "importance of counsels' failure to investigate [his] history of head injuries cannot be overstated;" that the "connection between childhood head injuries and impulsive murder" was "well established" at the time of sentencing; that "there was a correlation between [his] head injuries as a child and his impulsive behavior in the instant case;" and that "[expert] testimony could have enlightened the court as to the connection between childhood head injuries and impulsive behavior in murderers in general, and could have developed the link between [Spreitz]'s own head injuries and his impulsive behavior during this murder in particular." He contends that:
The murder in this case was a classic impulsive act. It was not thought out or premeditated beforehand. Appellant beat the victim with a rock; he did not even bring a weapon. The victim refused to have sex with him, fought him, and he became enraged and impulsively killed her. That is the classic behavior of a murderer who suffered childhood head injuries.
(Emphasis added.) Spreitz's shifting defense theories undermine his latest argument that long-term substance abuse was central to his plea for leniency all along.
We will never know how Ruby Reid, forced into the trunk of Spreitz's car and pondering her fate as he drove her into the desert, would have answered any of Spreitz's contentions. But the forensic evidence of the way in which she died stands in silent, but compelling refutation of that defense. Simply put, Spreitz cannot show on this record that his long-term substance abuse, as a non-statutory mitigating factor and without any connection to the crime, was either "central to his plea for leniency," McKinney , 813 F.3d at 823, or at "the very core of [his] plea for life," Coleman , 210 F.3d at 1051. Therefore, he cannot demonstrate that the Arizona courts' alleged failure to consider that evidence substantially influenced or swayed his ultimate sentence. Nor can he show that, had the Arizona courts further considered its marginal mitigating weight, the evidence would have substantially affected the outcome of his sentence. See Brecht , 507 U.S. at 623, 113 S.Ct. 1710. Because Spreitz cannot show that the error he alleges was not harmless, the district court's denial of habeas relief on Spreitz's Eddings claim should be affirmed.
From the majority's conclusion otherwise, I respectfully dissent.
The real damage inflicted by the en banc decision in McKinney is the broad assumption it adopts that now infects every death sentence imposed by Arizona courts for horrendous murders adjudicated in the sixteen-year period. It is regrettable that the United States Supreme Court denied certiorari in McKinney . But this case presents yet another opportunity to right the error in Ninth Circuit death penalty habeas jurisprudence.
In reviewing the last reasoned state court decision, we may consider "the record that was before the state court that adjudicated the claim on the merits." Cannedy v. Adams , 706 F.3d 1148, 1156 (9th Cir. 2013) (citation omitted). The record before the PCR court in this case included the sentencing judge's decision and the Arizona Supreme Court's direct appeal ruling. Thus, despite the majority's preference for cabining its view of the record to only the Arizona Supreme Court's decision, we must consider both decisions here.
Likewise, Spreitz claims in this appeal that his lawyer was ineffective at sentencing by failing to present witnesses who had extensive evidence about his early development, family history, head injuries, substance abuse, and emotional problems. We have rejected that claim in a contemporaneously filed memorandum disposition.
The majority does not take issue with the fact that the Arizona courts considered Spreitz's substance abuse history in the statutory mitigating context or that they found it insufficient to outweigh the aggravating factor of cruelty. "When applied solely in the context of statutory mitigation," the "causal nexus test does not violate Eddings. " McKinney , 813 F.3d at 810.
Although Henry involved different facts, as the majority points out, its reasoning applies fully to Spreitz's case. Op. at 1279, n.15.

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