and Submitted March 8, 2018 Pasadena, California
from the United States District Court for the District of
Arizona D.C. No. 2:07-cv-02120-DGC David G. Campbell,
District Judge, Presiding
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 reversed in part and affirmed in part the district
court's judgment denying Arizona state prisoner George
Russell Kayer's habeas corpus petition, and remanded with
directions to grant the writ with respect to Kayer's
panel held that the Arizona Supreme Court erred in rejecting
Kayer's proffered mental-impairment mitigation evidence
on the ground that the alleged impairment did not have a
causal nexus to the commission of the crime. The panel held
that this erroneous ruling, which was an alternative holding,
was harmless because the Arizona Supreme Court's
principal holding - that Kayer presented so little evidence
of mental impairment that he failed to establish even the
existence of any such impairment - was a reasonable
determination of the facts.
panel reversed the district court's denial of relief on
Kayer's claim that he was denied his Sixth Amendment
right to effective assistance of counsel due to his
attorneys' inadequate mitigation investigation in
preparation for his penalty phase hearing. The panel held
that in failing to begin penalty-phase investigation promptly
after they were appointed, Kayer's attorneys'
representation fell below an objective standard of
reasonableness; and that the conclusion of the state
post-conviction-relief (PCR) court that Kayer's attorneys
provided constitutionally adequate performance was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.
The panel concluded that but for counsel's deficient
performance, 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.
panel did not need to reach the question whether the
sentencing court acted properly in denying a continuance, and
agreed with the district court that none of the
procedurally-defaulted claims Kayer sought to revive was
substantial in the sense necessary to support a finding of
cause and prejudice under Martinez v. Ryan, 566 U.S.
1 (2012). The panel declined to certify two additional
in part and dissenting in part, Judge Owens disagreed that
the death sentence must be reversed because he could not say
that the Arizona PCR court acted unreasonably regarding
prejudice in light of the aggravating and mitigating
circumstances in this case.
FLETCHER, CIRCUIT JUDGE
Russell Kayer was convicted of first degree murder and
sentenced to death in Arizona Superior Court in 1997. During
a brief penalty-phase hearing, Kayer's counsel argued as
a mitigating circumstance that Kayer suffered from mental
illness and was a substance abuser, but provided very little
evidence to support the argument. The judge held that Kayer
had not established any mental impairment due to mental
illness or substance abuse. He sentenced Kayer to death.
direct appeal, the Arizona Supreme Court performed an
independent review of Kayer's death sentence, as required
under Arizona law. The Court found two statutory aggravating
circumstances-a previous conviction of a "serious
offense" in 1981, and "pecuniary gain" as a
motivation for the murder. State v. Kayer, 984 P.2d
31, 41-42 (Ariz. 1999). The Court found one non-statutory
mitigating circumstance-Kayer's importance in the life of
his son. Id. at 42. After weighing the two
aggravating circumstances against the one mitigating
circumstance, the Arizona Supreme Court affirmed Kayer's
had in the trial court, Kayer argued in the Arizona Supreme
Court for a mitigating circumstance based on mental
impairment due to mental illness and/or substance abuse. The
Court refused to find a mitigating circumstance based on
mental impairment, as either a statutory or non-statutory
mitigator. First, the Court refused to find that such
impairment existed at all. In the view of the Court, the
existence of such impairment was merely speculative. Second,
in the alternative, the Court held that even if there had
been non-speculative evidence of the existence of such
impairment, Kayer had failed to establish a "causal
nexus" between the alleged impairment and the murder.
post-conviction relief ("PCR") proceeding in
Arizona Superior Court, Kayer argued that his trial counsel
had provided ineffective assistance at the penalty phase.
Kayer presented evidence in the PCR court that his trial
counsel had performed little investigation of mitigating
circumstances. He also presented extensive evidence of mental
impairment due to mental illness and substance abuse which,
he contended, competent counsel would have discovered and
presented to the sentencing court. The PCR court denied
relief, holding that Kayer's counsel had not been
ineffective, and that, in any event, any deficiencies in his
counsel's performance did not prejudice Kayer. The
Arizona Supreme Court declined review without comment.
then sought federal habeas corpus. The district court denied
relief. On appeal to us, Kayer makes two claims with which we
are centrally concerned. First, Kayer claims that the Arizona
Supreme Court on direct appeal violated his Eighth Amendment
right to be free of cruel and unusual punishment by applying
its unconstitutional "causal nexus" test to his
proffered mitigating evidence of mental illness and substance
abuse. See Eddings v. Oklahoma, 455 U.S. 104 (1982);
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en
banc). Second, Kayer claims that the Arizona Superior Court
on post-conviction review erred in holding that his Sixth
Amendment right to counsel was not violated by his
counsel's deficient performance at the penalty phase.
See Strickland v. Washington, 466 U.S. 668 (1984).
reasons that follow, we decline to grant relief on
Kayer's Eddings causal-nexus claim but grant
relief on his Strickland
ineffective-assistance-of-counsel claim. We reverse the
judgment of the district court and remand with directions to
grant the writ with respect to Kayer's sentence.
Factual and Procedural History
Kester approached a security guard at a Las Vegas hotel on
December 12, 1994, to report that her boyfriend, George
Russell Kayer, had killed Delbert Haas in Yavapai County,
Arizona, ten days earlier. State v. Kayer, 984 P.2d
31, 35 (Ariz. 1999). Kester was arrested and interrogated.
The following account of the events leading up to and
culminating in Haas's murder is largely based on
Kester's narrative at trial, as summarized by the Arizona
Supreme Court on direct appeal.
November 30, 1994, Kayer, Kester, and Haas traveled in
Haas's van from Arizona to Nevada on a gambling trip. The
three of them spent their first night sharing a room at a
hotel in Laughlin, Nevada. Kayer told Haas that night that he
had "won big" during the day using a special
gambling system. Kayer knew that Haas had recently received
money from an insurance settlement. He convinced Haas to lend
him about $100.
next day, Kayer lost all the money Haas had lent him. Kayer
lied to Haas, telling him that he had again "won
big," id. at 36, but that someone had stolen
his money. Kester asked Kayer what he planned to do now that
he was out of cash. Kester testified that Kayer replied that
he would rob Haas. Kester pointed out that Haas would easily
identify Kayer as the thief. According to Kester, Kayer
responded, "I guess I'll just have to kill
December 2, Kayer, Kester, and Haas drove back to Arizona.
Kester recounted in a pretrial interview that the three of
them consumed a case of beer during the several-hour drive.
Haas argued with Kayer about how Kayer would repay him.
During a stop to buy snacks and use the bathroom, Kayer
pulled a gun from beneath a seat in the van and put it in his
pants. He asked Kester if she was "going to be all right
with this." Id. Kester responded that she
wanted Kayer to warn her before he pulled the trigger.
who was driving, left the main highway, purporting to take a
shortcut. He stopped the van by the side of a back road. Haas
got out of the van and walked toward the back to urinate.
Kester started to get out of the van, but Kayer stopped her,
motioning to her with the gun. Through the back window of the
van, Kester saw Kayer walk up behind Haas and shoot him in
the head while he was urinating.
dragged Haas's body into the bushes; took Haas's
wallet, watch and jewelry; got back in the van; and drove
away with Kester. Kayer realized that he had forgotten to get
Haas's house keys and drove back to where they had left
his body. Kayer got out of the van to retrieve the keys, but
returned and asked for the gun, saying that Haas did not
appear to be dead. Kayer went back to Haas's body, and
Kester heard a second shot.
and Kester drove to Haas's home in Arizona and stole
several items to pawn and sell at flea markets. They spent
the next week pawning and selling the stolen property and
gambling with the proceeds. Ten days after the murder, Kester
approached a security guard in Las Vegas and reported that
Kayer had killed Haas. She was taken into custody. Kayer was
taken into custody soon afterwards.
and Kester were indicted for first degree murder on December
29, 1994. The State initially announced that it would seek
the death penalty against both of them. In September 1995,
Kester entered into a plea agreement under which the State
agreed not to seek the death penalty and, further, to limit
dramatically her potential sentence. Under the agreement,
Kester would receive, at worst, a six-and-a-half-year prison
sentence. At best, she would be sentenced to probation. In
exchange, Kester agreed to testify truthfully at Kayer's
trial, consistent with her previous statement to the police.
Kester testified as promised. After Kayer was convicted,
Kester was sentenced to three years probation.
Trial, Conviction, and Sentencing
jury convicted Kayer of first degree murder on March 26,
1997. Kayer's "aggravation/migitation hearing"
took place on July 8, 1997. His attorneys put on five
witnesses. Their testimony was finished before noon.
Jerry Stoller, a "detention officer" who worked in
the law library of the county jail, testified that Kayer was
always "very busy" when at the library, always
taking "the full three hours." When asked if
Kayer's "conduct has always been good," Stoller
responded, "In my presence, yes."
Cherie Rottau, Kayer's seventy-six-year-old mother,
testified that Kayer had been generally well behaved during
high school. She testified that Kayer's father had died
when he was in kindergarten and that she had not remarried
until after Kayer had graduated from high school. She
recounted that when Kayer was a teenager, he had shot two
jackrabbits at her sister's house in the country.
Afterwards, "He said, 'You know, that's not
right to go out there and kill things.' He said,
'I'll never kill another thing as long as I
live.' And to my knowledge, he hasn't." She
testified that she did not have "any concerns about him
until he was older," when he was nineteen and had
already graduated from high school. "I noticed a change
in him. . . . [H]e would work 24 hours and then when he'd
get to sleep he'd sleep a long time, . . . [W]hen he was
happy he was real happy." "[W]hen he gets
depressed, he just gets down at the bottom of the well, and
when he's happy, . . . there's nothing he can't
do when he's happy. And he does accomplish a lot."
She testified that Kayer's fourteen-year-old son had been
"dropped" in the delivery room, and that he had
"difficulties with school and certain other
developmental things." She testified that Kayer and his
son were "real close" and that Kayer had been
"active in trying to get . . . educational
assistance" for his son.
Kayer's older half-sister, Jean Hopson, testified that
Kayer's father (her stepfather) had drinking and gambling
problems, and that Kayer had the same problems, beginning in
his early twenties. She testified, "[H]e was a happy kid
as a school kid, and I think his problems started when he was
in the service, and shortly afterwards, getting
married." She testified, further, that Kayer had
"[h]ighs and lows." "We did have a family
discussion one time, and he . . . was diagnosed, I guess, as
a bipolar manic-depressive, or something like that."
"I believe [he was diagnosed] at the VA hospital. At one
point, he checked himself in." "He is supposed to
be on lithium now, but he read up on the side effects of
lithium, how it can affect your liver and different body
organs, and he will not take it." "I don't
really totally understand the bipolar manic-depressive. I
understand it enough to know that there are ups and
Mary Durand, who had just been hired as a mitigation
specialist for Kayer, testified:
In a normal mitigation case you would spend probably 100
hours at a minimum with the client, developing a rapport,
learning information, taking a social history, gaining his
confidence or her confidence so that you can get them to
share with you things that are sometimes extraordinarily
painful, sometimes things they don't want to relive,
sometimes things they have buried and merely don't
remember until other people start giving anecdotal evidence.
testified that she had been able to interview Kayer only
twice, for a total of six or seven hours.
testified that although she had been able to interview some
of Kayer's family members, the only documentary evidence
she had been able to obtain was Kayer's "criminal
court records from his prior involvements with the law."
She had not been able "to get any of the psychiatric
records from any of his stays at psychiatric hospitals around
the country." She "didn't get any of his school
records, medical records, any of his military records."
Based on the information she was able to obtain, Durand
testified that there was a "family history on both sides
of alcoholism"; that there was a "history of mental
illness"; and that Kayer was slow to develop as a child.
She testified that Kayer "was allegedly diagnosed as a
manic-depressive and was having such a manic state and then
such a severely depressive state while he was in the military
that he was allowed to get out of his military enlistment
honorably, but under medical conditions[.]"
asked whether she had sufficient information "to give
any sort of reliable opinions to the judge as far as
mitigating elements," Durand responded:
I would certainly not be qualified to give a medical opinion
about a diagnosis of a psychiatric condition, and I do not
feel comfortable giving an opinion about the length, breadth
and depth of any other issue I have spoken to, because I
have not been able to do my investigation. I do believe
they exist. I do not know to what degree, for what length,
and what duration, and how serious.
Durand finished her testimony, the judge noted that
sentencing was scheduled for July 15, a week later. He asked
Kayer whether he wished more time for further investigation:
Do you want more time? By asking you the question, I'm
basically saying if you tell me right now that you've
considered it, and you want more time, I'm prepared to
give you more time. But I think you are an intelligent
individual. You know what she's just testified to. . . .
You got the information, you got the intelligence, you've
talked to counsel, you've heard Ms. Durand. Your call.
replied that he did not want more time.
Kayer's son testified. His testimony took only eleven
lines of transcript.
sentencing on July 15, the trial judge held that the state
had established two statutory aggravating circumstances-that
Kayer had been previously convicted of a "serious
offense" and that the murder was committed for
"pecuniary gain." However, the judge refused to
find as an additional aggravating circumstance that the
murder was committed in "an especially heinous, cruel or
depraved manner." He explained:
The pathologist was not able to testify anything . . . as to
the suffering of [the] victim in this case, so that would be
the necessary finding as far as cruelty. As to heinous and
depraved, that deals with your thoughts and conduct
surrounding the murder and the events afterward. As I read
the case law and the description, I do not find that the
evidence presented rises beyond a reasonable doubt as far as
proving heinous and depraved . . . .
trial judge found that Kayer had established only one
mitigating circumstance-the non-statutory mitigator that
Kayer had "become an important figure in the life of his
son." The judge held that he could not find mental
impairment as a mitigating circumstance. He stated, "I
must find it by a preponderance of the evidence. I simply
cannot. It has not been presented in any way, shape or form
that would rise to that level." The judge concluded that
Kayer's relationship with his son did not outweigh his
prior conviction and his pecuniary motive for killing Haas.
He sentenced Kayer to death.
appealed to the Arizona Supreme Court. See Ariz.
Rev. Stat. § 13-4031 (1997); State v. Kayer,
984 P.2d 31 (Ariz. 1999). That Court conducted an independent
review of Kayer's death sentence, in accordance with
direct review, the Arizona Supreme Court found the same two
statutory aggravating circumstances that the trial court had
found-prior conviction of a serious offense and commission of
murder for pecuniary gain. It also found the same
non-statutory mitigating circumstance as the trial
court-Kayer's "importance in the life" of his
had to the trial court, Kayer argued to the Arizona Supreme
Court that he had a mental impairment that qualified as
either a statutory or a non-statutory mitigating
Kayer argued that his mental impairment qualified as a
statutory mitigation circumstance under Arizona Revised
Statutes § 3-703(G)(1) (as it was then numbered), which
required that the "defendant's capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of [the] law [be] significantly
impaired, but not so impaired as to constitute a defense to
prosecution." Kayer, 984 P.2d at 45. Kayer
argued that "his history of mental illness, including a
history of suicide ideation, a history of alcoholism in his
family, and his own polysubstance abuse, establishes the
existence of this mitigating factor under the preponderance
standard." Id. The Arizona Supreme Court
disagreed. It held that Kayer had presented insufficient
evidence to establish the existence of any mental impairment
whatsoever. The Court wrote that Kayer "did not
establish as threshold evidence the existence of any of these
factors, let alone their influence on preventing him from
conforming his conduct to the law or appreciating the
wrongfulness of his conduct." Id. The Court
also held, in the alternative, that Kayer had failed to
establish a "causal nexus" between the alleged
impairment and the murder.
Kayer argued that his mental impairment qualified as a
non-statutory mitigation circumstance. The Court held, as it
had with respect to statutory mitigation, that Kayer had
failed to present sufficient evidence to establish the
existence of any impairment. The Court discounted
Durand's tentative conclusions, writing that "Durand
speculated that defendant suffered from mental
difficulties." Id. at 46. The Court concluded,
"[T]he record shows that the existence of impairment,
from any source, is at best speculative." Id.
In the alternative, the Court concluded that Kayer had failed
to establish a causal nexus:
Further, in addition to offering equivocal evidence of mental
impairment, defendant offered no evidence to show the
requisite causal nexus that mental impairment affected his
judgment or his actions at the time of the murder.
an independent weighing of the two aggravating circumstances
and the one mitigating circumstance, the Arizona Supreme
Court affirmed Kayer's death sentence.
filed a post-conviction relief ("PCR") petition in
Arizona Superior Court. See Ariz. R. Crim. P. 32.1.
In accordance with Arizona law, Kayer's trial judge
presided over his PCR proceedings.
claimed that the "trial court and the Arizona Supreme
Court incorrectly applied United States Supreme Court law
when they required [that] mitigating factors have a
'causal nexus' to the crime," in violation of
Eddings v. Oklahoma, 455 U.S. 104 (1982). The state
responded that Kayer had procedurally defaulted his causal
nexus Eddings claim "by not raising it in his
direct appeal, or in a motion for reconsideration." The
PCR court agreed, concluding that Kayer had procedurally
defaulted this claim under Arizona Rule of Criminal Procedure
also claimed that his Sixth Amendment right to counsel was
violated when his trial counsel failed to conduct a
constitutionally adequate mitigation investigation. The PCR
court conducted a nine-day evidentiary hearing at the end of
March 2006, during which Kayer's attorneys presented
witnesses and documentary evidence showing the mitigation
evidence that Kayer's trial attorneys could have
uncovered had they performed a constitutionally adequate
investigation. We describe this evidence in detail below.
See infra, Section IV.
court issued a very brief written decision on May 8, 2006,
rejecting Kayer's Sixth Amendment ineffective assistance
claim. The court concluded that Kayer had "voluntarily
prohibited his attorneys from further pursuing and presenting
any possible mitigating evidence." It concluded, in the
alternative, that if deficient performance under
Strickland v. Washington, 466 U.S. 668 (1984), had
been shown, "no prejudice to the defendant can be
Arizona Supreme Court denied without explanation Kayer's
Petition for Review of the Superior Court's denial of
Federal Habeas Petition
December 3, 2007, Kayer filed a timely petition in federal
district court for a writ of habeas corpus under 28 U.S.C.
§ 2254(d). The district court denied relief, and Kayer
appealed to this court. We remanded to the district court to
give Kayer an opportunity to establish cause and prejudice
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), for
his counsel's procedural default in state court. The
district court again denied relief. This appeal followed.
Standard of Review
review the district court's denial of [a] § 2254
habeas corpus petition de novo." Deck v.
Jenkins, 814 F.3d 954, 977 (9th Cir. 2014).
habeas petition is subject to the Antiterrorism and Effective
Death Penalty Act ("AEDPA"). See Lindh v.
Murphy, 521 U.S. 320, 322-23 (1997). Under AEDPA,
"[w]e review the last reasoned state court
opinion." Musladin v. Lamarque, 555 F.3d 830,
834 (9th Cir. 2009). In this case, that opinion is the
written order of the state PCR court.
provides that where a state court has adjudicated a claim on
the merits, relief may be granted only if the state court
decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,"
or if the state court decision rests on "an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d)(1), (2). "[A] state-court decision is contrary
to [Supreme Court] precedent if the state court arrives at a
conclusion opposite to that reached by [the] Court on a
question of law . . . [or] if the state court confronts facts
that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at [the opposite] result . . .
." Williams v. Taylor, 529 U.S. 362, 405
(2000). A state court unreasonably applies Supreme Court
precedent "if the state court identifies the correct
governing legal principle from the Supreme Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Mann v.
Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016) (en banc)
(alteration omitted) (quoting Williams, 529 U.S. at
413). "[W]e may only hold that a state court's
decision was based on an unreasonable determination of the
facts if 'we are convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record.'" Murray v. Schriro, 745 F.3d 984,
999 (9th Cir. 2014) (quoting Taylor v. Maddox, 366
F.3d 992, 1000 (9th Cir. 2004)). Neither of these standards
"require[s] citation of [Supreme Court] cases . . . [or]
even require[s] awareness of [Supreme Court] cases, so long
as neither the reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam).
review de novo an exhausted claim that a state court has
failed to decide on the merits. See Pirtle v. Mogan,
313 F.3d 1160, 1167 (9th Cir. 2002). We may not grant habeas
relief if an error in state court was harmless. See
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Causal Nexus and Ineffective Assistance of Counsel
are four certified questions before us. The first two are the
most important. First, Kayer contends that the trial court
and the Arizona Supreme Court on direct appeal violated
Eddings v. Oklahoma, 455 U.S. 104 (1982), by
applying an unconstitutional "causal nexus" test
under which a circumstance is not mitigating unless causally
connected to the commission of the crime. Eddings
held under the Eighth Amendment that a sentencer may not
"refuse to consider, as a matter of law, any
relevant mitigating evidence." Id. at 113
(emphasis in original). Second, Kayer contends that the
Arizona PCR court erred in holding that his right to counsel
under the Sixth Amendment under Strickland had not
been violated. We consider these two questions in turn.
contends that the trial court and the Arizona Supreme Court
violated Eddings. The State responds that Kayer
procedurally defaulted and failed to exhaust his
Eddings claim. In the alternative, the State
contends on the merits that the Arizona Supreme Court did not
Procedural Default and Exhaustion
Kayer procedurally defaulted and did not properly exhaust his
causal nexus claim under Eddings, we may not grant
his habeas petition on this claim. 28 U.S.C. §
2254(b)(1)(A), (c); Wainwright v. Sykes, 433 U.S.
72, 86-87 (1977). A petitioner "must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process."
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). It is a close question whether Kayer has procedurally
defaulted and failed to exhaust his Eddings claim.
Because we conclude that if we reach Kayer's
Eddings claim we must deny it on the merits, we will
assume without deciding that there was no procedural default
and failure to exhaust.
in McKinney v. Ryan, 813 F.3d 798, 802, 821 (9th
Cir. 2015) (en banc), that the Arizona Supreme Court's
"causal nexus" rule, which "forbade as a
matter of law giving weight to mitigating evidence . . .
unless the background or mental condition was causally
connected to the crime," violated Eddings. Our
opinion in McKinney included a long string cite of
cases in which the Arizona Supreme Court had applied its
unconstitutional causal nexus test. The string cite included
the Court's affirmance of Kayer's death sentence on
direct appeal. See McKinney, 813 F.3d at 816 (citing
Kayer, 984 P.2d at 46).
explaining its conclusion that Kayer's alleged
"mental impairment" was not a mitigating
circumstance, the Arizona Supreme Court on direct appeal
wrote that Kayer "offered no evidence to show the
requisite causal nexus that mental impairment
affected his judgment or his actions at the time of the
murder." Kayer, 984 P.2d at 46 (emphasis
added). The emphasized language shows that the Arizona
Supreme Court viewed causal nexus as a prerequisite to the
existence of a mitigating circumstance-not merely, as the
state argues, as a factor bearing on the weight to be
accorded to a mitigating circumstance. The Court therefore
erred in rejecting Kayer's proffered ...