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Kayer v. Ryan

United States Court of Appeals, Ninth Circuit

December 18, 2019

George Russell Kayer, Petitioner-Appellant,
Charles L. Ryan, Director of the Arizona Department of Corrections, Respondent-Appellee.

          D.C. No. 2:07-cv-02120-DGC

          Jennifer Y. Garcia (argued) and Emma L. Smith, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

          John Pressley Todd (argued), Special Assistant Attorney General; Jacinda A. Lanum, Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Dominic Draye, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

          Before: William A. Fletcher, John B. Owens, and Michelle T. Friedland, Circuit Judges.



         Habeas Corpus / Death Penalty

         The panel filed an order denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc, in a case in which the panel (1) reversed in part and affirmed in part the district court's judgment denying Arizona state prisoner George Russell Kayer's habeas corpus petition and (2) remanded with directions to grant the writ with respect to Kayer's death sentence.

         Judges W. Fletcher and Friedland concurred in the denial of rehearing en banc. Responding to their dissenting colleagues' arguments, they wrote that they are acutely aware of the deference required under AEDPA, and that even giving all appropriate deference to the decision of the post-conviction-relief court judge, habeas relief is warranted.

         Judge Bea, joined by Judges Bybee, Callahan, M. Smith, Ikuta, Owens, Bennett, R. Nelson, Bade, Collins, Lee, and Bress, dissented from the denial of rehearing en banc. He wrote that by any fair reading of the panel majority's opinion, it reviewed the post-conviction-review court's decision de novo as to whether an Arizona court, applying Arizona precedent, would have granted relief-a radical approach unwarranted under the Antiterrorism and Effective Death Penalty Act. He also wrote that beyond the legal errors, Kayer's proposed mitigating evidence is hardly overwhelming, and reasonable jurists could find that it did not undermine confidence in the death sentence, providing no basis for relief under AEDPA's deferential standard.


         Judges W. Fletcher and Friedland voted to deny the petition for panel rehearing and rehearing en banc. Judge Owens voted to grant the petition for panel rehearing and rehearing en banc.

         The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of the votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.

         Judge Hurwitz was recused and did not participate in the deliberations or vote in this case.

         The petition for panel rehearing and rehearing en banc is DENIED. A concurrence in the denial by Judges W. Fletcher and Friedland and a dissent from the denial by Judge Bea are filed concurrently with this order.

          W. FLETCHER and FRIEDLAND, Circuit Judges, concurring in the denial of rehearing en banc:

         Our opinion in this capital case speaks for itself. See Kayer v. Ryan, 923 F.3d 692 (9th Cir. 2019). However, our colleagues' dissent from the denial of en banc review makes new and unfounded arguments to which we feel it appropriate to respond.

         George Kayer shot and killed his friend Delbert Haas in Arizona while returning from a gambling trip to Nevada. Kayer, Lisa Kester (Kayer's girlfriend), and Haas were in Haas's van. Kayer was driving. Kayer had already indicated to Kester that he would kill Haas. The three of them had consumed a case of beer during the several-hour drive. Kayer took a back road and stopped the van. When Haas went to the back of the van to urinate, Kayer shot him. Kayer and Kester drove away, but returned when they realized Kayer had not gotten Haas's house keys. When they returned, Haas did not appear to be dead. Kayer shot him again, killing him. Ten days later, when Kayer and Kester returned to Nevada, Kester approached a security guard at a Las Vegas hotel and told him what had happened. Kayer and Kester were both charged with capital murder. Kester testified against Kayer in return for a reduced sentence of three years probation. Id. at 695-96.

         Our dissenting colleagues do not dispute that Kayer's counsel performed deficiently. Kayer's first lawyer, Linda Williamson, was inexperienced and incompetent. She represented Kayer for a year and a half. During that time, she did no work to prepare for the penalty phase of Kayer's trial. Id. at 702-03. Kayer's second lawyer, David Stoller, was experienced but incompetent. He represented Kayer for eleven months. During that time, he, like Williamson, did no work to prepare for the penalty phase. Id. at 703-04. The jury returned a guilty verdict on March 26, 1997. Stoller's mitigation expert first interviewed Kayer on May 21, 1997, almost two months later, six days before the date originally set for the sentencing hearing. Id. at 704.

         As a result of counsels' deficient preparation, the mitigation evidence at the sentencing hearing was meager. It took only part of a morning. There were five witnesses: (1) a detention officer who testified that Kayer was well behaved in the jail law library; (2) Kayer's mother, who testified that, to her knowledge, Kayer had never killed anything or anyone since shooting jackrabbits as a teenager; (3) Kayer's half-sister, who testified that Kayer had "highs and lows," had drinking and gambling problems, and had, "I guess," been diagnosed "as a bipolar manic-depressive, or something like that"; (4) the mitigation expert, who testified she had not had enough time to gather information that would support "a medical opinion about a diagnosis of a psychiatric condition"; and (5) Kayer's mentally impaired son, who gave eleven lines of testimony. Id. at 696-98.

         In Arizona at the time, capital sentences were imposed by judges rather than juries. The Supreme Court would not decide Ring v. Arizona, 536 U.S. 584 (2002), until five years later. Under Arizona law, a sentencing judge balanced aggravating and mitigating circumstances. There were specified statutory aggravating circumstances, but no non-statutory aggravating circumstances. There were specified statutory mitigating circumstances, but any other mitigating circumstances could be considered as well. Statutory mitigators were given greater weight than non-statutory mitigators.

         The sentencing judge found two statutory aggravating factors under Arizona law: (1) that Kayer had previously been convicted of a "serious offense"; and (2) that the murder had been committed for "pecuniary gain." Ariz. Rev. Stat. § 13-703(F)(2), (F)(5) (1977). (All references are to the 1997 version of Arizona Revised Statutes.) The judge explicitly refused to find as an additional aggravating circumstance that the murder had been committed in "an especially heinous, cruel or depraved manner." Id. at § 13-703(F)(6); Kayer, 923 F.3d at 698. The judge found one non-statutory mitigating factor-that Kayer had "become an important figure in the life of his son." The judge sentenced Kayer to death. Id. at 698.

         During this pre-Ring period, the Arizona Supreme Court resentenced de novo in capital cases on direct appeal, giving no deference to a sentencing decision of the trial judge. In its de novo resentencing of Kayer in 1999, the Arizona Supreme Court found the same two statutory aggravating factors and the same single non-statutory mitigating factor. Like the sentencing judge, it did not find the additional statutory aggravating circumstance that the murder had been committed in "an especially heinous, cruel or depraved manner." It sentenced Kayer to death. State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999).

         On state post-conviction review ("PCR"), Kayer's lawyers claimed that he had received ineffective assistance of counsel ("IAC") at the sentencing phase. His lawyers presented extensive evidence of Kayer's mental illness and of mental illness in Kayer's family, none of which had been presented at the sentencing hearing. We describe that evidence at length in our opinion. To recapitulate the main points:

         Kayer's father was an alcoholic and obsessive gambler. Kayer's Aunt Opal on his mother's side was schizophrenic ("I have [heard voices] all my life. . . . It runs in the family"). She testified that Kayer had told her, "I thought it was normal[.] I hear voices, too." Kayer, 923 F.3d at 711. Kayer's Aunt Ona Mae on his mother's side was an alcoholic with severe mood swings. Kayer's Aunt Tomi on his mother's side was an alcoholic and a severe depressive. Kayer's cousin on his mother's side was schizophrenic and bipolar. Id.

         Kayer himself was slow to walk and fell often. As a small boy, he had so many bruises on his body that his mother would not take him out in public. He was dyslexic and got very poor grades in school. He enlisted in the Navy after high school but was quickly discharged with a mental "impairment" described in the discharge papers as "severe." Id. at 709. He had two unsuccessful marriages in his early twenties. He began committing property crimes in his mid-twenties, and became a heavy drinker and compulsive gambler. He checked himself into a VA hospital in his late twenties, saying "I just want to know what's wrong." Id. at 710. Six years later, he again checked himself into a VA hospital, where a doctor wrote that he "showed bipolar traits" and prescribed lithium (a standard medication for bipolar disorder). He was given a "provisional diagnosis" of "Personality Disorder/Bipolar." Id. at 710-11. Kayer told a probation officer a year later that until the second stay in the VA hospital, "he had no idea what was wrong with him." Id. When Kayer was forty, he suffered a severe heart attack and was admitted to a VA hospital. He checked himself out of the hospital "against medical advice." Id. He killed Haas six weeks later.

         Three doctors testified in the PCR court without contradiction. Dr. Anne Herring testified that Kayer "demonstrated significant difficulty when required to execute complex problem solving," and that "similar deficits have been associated with chronic heavy substance abuse, traumatic brain injury, and with bipolar disorder." Id. at 712. Dr. Michael Sucher, an addiction specialist, testified to his "untreated alcoholism and untreated pathological gambling." Id. Dr. Barry Morenz, a psychiatrist, characterized Kayer's beliefs as "really delusional." Among other things, Kayer had believed ever since he was a boy, and continued to believe as an adult, that he was a reincarnated being from another planet. Id. Dr. Morenz diagnosed Kayer's mental state at the time of the murder: "He was having problems with bipolar disorder symptoms and may have been manic or hypomanic, he was having difficulties with out of control pathological gambling and he had difficulty with extensive alcohol abuse." Id. at 713.

         The Arizona judge who presided over Kayer's trial and sentenced him to death also presided over his state PCR proceeding. In a very brief order, the state PCR judge denied Kayer's IAC claim. He held that Kayer's trial attorneys, Williamson and Stoller, had provided professionally competent service, despite the fact that Williamson did no mitigation work whatsoever, and Stoller's mitigation expert did not even begin work until six days before the originally scheduled sentencing hearing. Alternatively, the state PCR judge held that Kayer had not shown prejudice: "This court further concludes that if there had been a finding that the performance prong of the Strickland standard had been met, that no prejudice to the defendant can be found." Id. at 714 (emphasis in the judge's order). The Arizona Supreme Court denied Kayer's petition for review without explanation. Id. at 700. The state PCR judge's decision was therefore the last reasoned state court decision.

         We held that there had been deficient performance by counsel at the penalty phase, and that the state PCR judge had been objectively unreasonable, within the meaning of AEDPA, in concluding otherwise. Our colleagues have not disputed this holding. Counsels' failure to prepare for the penalty phase hearing was egregious, and the mitigation evidence presented at the hearing was pathetically inadequate. See Rompilla v. Beard, 545 U.S. 374 (2005).

         We also held that the no-prejudice decision by the state PCR judge was an objectively unreasonable decision within the meaning of AEDPA. Our dissenting colleagues object to this holding.

         I. Our Reasoning

         There were three steps in our reasoning:

         A. Step One First, we compared the aggravators and mitigators at the two different stages in state court:

         1. Sentencing Phase and Direct Appeal

         In the trial court and in the Arizona Supreme Court on direct de novo review, there were two statutory aggravators and one non-statutory mitigator. No mitigating factor-either statutory or non-statutory-was found based on mental impairment. Given the meager evidence presented at sentencing, we held that the Arizona Supreme Court had "made a reasonable determination of the facts in concluding that Kayer suffered from no mental impairment." Kayer, 923 F.3d at 702.

         The first statutory aggravator was a prior conviction for a "serious offense." Ariz. Rev. Stat. § 13-703(F)(2). Kayer's prior conviction was for first degree burglary. This conviction is the least serious of the "serious offenses" under the aggravator. Serious offenses range from burglary to first degree murder, second degree murder, manslaughter, aggravated assault resulting in serious physical injury, sexual assault, and any dangerous crime against children. See Ariz. Rev. Stat. § 13-703(H)(1)-(6). The second statutory aggravator was commission of a crime for "pecuniary gain." See Ariz. Rev. Stat. § 13-703(F)(5). The gain in Kayer's case was relatively modest: avoiding repayment of a $100 loan from Haas, and stealing money and jewelry from Haas's person and personal property from his house. Neither the sentencing judge nor the Arizona Supreme Court found the proposed statutory aggravator of killing in "an especially heinous, cruel or depraved manner." Ariz. Rev. Stat. § 13-703(F)(6).

         The one non-statutory mitigator was Kayer's importance in the life of his son.

         2. State PCR Proceeding

         Based on the extensive evidence presented during the state PCR proceeding, we concluded that Kayer had established the statutory mitigator of mental impairment under Arizona law: "The 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." Ariz. Rev. Stat. § 13-703(G)(1). In order to reach that conclusion, we analyzed Arizona Supreme Court cases in which that statutory mitigator had been found. Kayer, 923 F.3d at 718 (providing as examples State v. Stevens, 158 Ariz. 595, 764 P.2d 724, 727-29 (1988) (long-term alcohol and drug use); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 16-17 (1983) (long-term drug use)). The state PCR judge made no finding, one way or the other, whether Kayer had established the statutory mitigator of mental impairment. If he had made a finding that Kayer had not established this statutory mitigator, the finding would have been objectively unreasonable, given the clear case law of the Arizona Supreme Court.

         The Strickland prejudice question in the PCR court was the effect of the addition of the new statutory mitigator of "mental impairment" to the relatively weak non-statutory mitigator of "importance in the life of his son," balanced against the same two statutory aggravators.

         B. Step Two

         Second, we recited the established law for determining prejudice in a Strickland IAC case under AEDPA. Under that law, we do not look to what the initial sentencing judge would have done if the later-presented evidence had been presented at the sentencing hearing. Instead, we look to the probability of a different outcome in the Arizona Supreme Court, which sentences de novo in capital cases. We filter the Strickland standard through the lens of AEDPA to give appropriate deference to the decision of the state PCR judge. Kayer, 923 F.3d at 719-20.

         The prejudice standard under Strickland is not whether the newly introduced evidence would "more likely than not have produced a different outcome." Rather, the Strickland prejudice standard is the less demanding standard of "reasonable probability":

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland v. Washington, 466 U.S. 668, 694 (1984). When filtered through the lens of AEDPA, the standard is that articulated by the Supreme Court in Porter v. McCollum. The Strickland prejudice question for a federal habeas court under AEDPA is whether

it was objectively unreasonable [for the state habeas court] to conclude there was no reasonable probability the sentence would have been different if the sentencing judge . . . had heard the significant mitigation evidence that [defendant's trial] counsel neither uncovered nor presented.

Porter v. McCollum, 558 U.S. 30, 31 (2009) (per curiam).

         C. Step Three

         Third, we compared the facts of Kayer's case to the facts of other Arizona capital cases to determine prejudice. We discussed several Arizona Supreme Court cases and concluded that one case in particular predicted what that court would likely have done if the information presented during Kayer's state PCR proceeding had been presented at the original sentencing hearing. Id. at 721-23.

         In State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979), defendant Brookover had agreed to buy 750 pounds of marijuana from the victim. When the marijuana was delivered, Brookover shot the victim in order to avoid paying for it. "The victim fell to the floor moaning and asked the defendant what he had done. The defendant said 'Don't worry . . . it will be over soon' and shot him once more in the back," killing him. Id. at 1323. There were essentially the same two statutory aggravators in Brookover's case as in Kayer's case: (1) conviction for a prior "serious offense," though this aggravator, at the time of Brookover's sentencing, required the crime be one for which the death penalty could be imposed; and (2) killing for pecuniary gain (recognized a year later, retroactively, as a statutory aggravator). As in Kayer's case, the Brookover court rejected a statutory aggravator of killing in "an especially heinous, cruel, or depraved manner." There was also the same mitigating factor that in Kayer's case had been established only after he obtained competent counsel during the state court PCR proceedings: "mental impairment." Unlike in Kayer's case, there was no additional mitigator in Brookover's case. In its de novo sentencing determination in Brookover, the Arizona Supreme Court held that a death sentence could not be imposed. It held, "Under the circumstances, leniency is mandated." Id. at 1326 (emphasis added).

         The comparison between Kayer's case and Brookover is striking. To summarize: Both shot their victims twice, wounding them with the first shot and, after time for deliberation, killing them with the second shot. Both men shot and killed their victims for "pecuniary gain." In neither case was the pecuniary gain great. Both men had prior convictions for "serious crimes," though Kayer's was a much less serious crime than Brookover's. Both men had the statutory mitigator of "mental impairment." Kayer had an additional mitigator, the non-statutory mitigator of importance in the life of his son. Our dissenting colleagues call Kayer's crime a "brutal and venal murder." Dissent at 43. But it was no worse than the murder in Brookover. Indeed, the courts in both Kayer's case and in Brookover specifically rejected the proposed statutory aggravator that the murder had been committed in "an especially, heinous, cruel or depraved manner."

         Given the striking similarity between the facts of Brookover and the facts of Kayer's case, and given that the Arizona Supreme Court had held in Brookover that a noncapital sentence was "mandated," we held that the state court judge was "objectively unreasonable" in holding that there was "no reasonable probability" that Kayer's sentence would have been different if the evidence presented to the PCR court had been presented in the original sentencing hearing. We wrote:

In determining prejudice, we need not go so far as Brookover. We need not decide that leniency was "mandated" and that the state PCR court was unreasonable in concluding otherwise. We need only decide whether "it was objectively unreasonable" for the state court to conclude that there was "no reasonable probability" that Kayer's sentence would have been different if Kayer's attorneys had presented to the sentencing court the mitigating evidence later presented to the PCR court. Porter [v. McCollum], 558 U.S. at 31 . . . . In light of the foregoing, and particularly in light of the Arizona Supreme Court's decision in Brookover, we hold that there is a reasonable probability Kayer's sentence would have been less than death, and that the state PCR court was unreasonable in concluding otherwise.

Kayer, 923 F.3d at 723.

         II. Our Colleagues' Dissent Our dissenting colleagues make two arguments based on mistakes of law.

         First, our colleagues argue that we were required to give deference to the prejudice decision of the state PCR judge on the ground that he made ...

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