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.
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.
Corpus / Death Penalty
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.
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
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.
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.
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.
Hurwitz was recused and did not participate in the
deliberations or vote in this case.
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.
FLETCHER and FRIEDLAND, Circuit Judges, concurring in the
denial of rehearing en banc:
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.
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
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.
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.
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
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.
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).
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:
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.
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.
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.
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
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).
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.
were three steps in our reasoning:
One First, we compared the aggravators and mitigators at the
two different stages in state court:
Sentencing Phase and Direct Appeal
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.
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).
non-statutory mitigator was Kayer's importance in the
life of his son.
State PCR Proceeding
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
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
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.
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
Porter v. McCollum, 558 U.S. 30, 31 (2009) (per
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.
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
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."
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.
Colleagues' Dissent Our dissenting colleagues make two
arguments based on mistakes of law.
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 ...