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Kayer v. Ryan

United States Court of Appeals, Ninth Circuit

May 13, 2019

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

          Argued and Submitted March 8, 2018 Pasadena, California

          Appeal 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.

          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 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 death sentence.

         The 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.

         The 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.

         The 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 claims.

         Concurring 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.



         George 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.

         On 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 death sentence.

         As he 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.

         In a 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.

         Kayer 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).

         For the 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.

         I. Factual and Procedural History

         A. Factual History

         Lisa 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.

         On 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.

          The 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 him." Id.

         On 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.

         Kayer, 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.

         Kayer 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.

         Kayer 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.

         Kayer 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.

         B. Procedural History

         1. Trial, Conviction, and Sentencing

         The 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.

         First, 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."

         Second, 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.

         Third, 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 downs[.]"

         Fourth, 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.

         Durand testified that she had been able to interview Kayer only twice, for a total of six or seven hours.

         Durand 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[.]"

         When 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.

(Emphasis added.)

         After 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.

         Kayer replied that he did not want more time.

         Finally, Kayer's son testified. His testimony took only eleven lines of transcript.

         At 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 . . . .

         The 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.

         2. Direct Appeal

         Kayer 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 Arizona law.

         On 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 son.

         As he 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 circumstance.

         First, 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.

         Second, 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.


         After an independent weighing of the two aggravating circumstances and the one mitigating circumstance, the Arizona Supreme Court affirmed Kayer's death sentence.

         3. Post-Conviction Proceedings

         Kayer 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.

         Kayer 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 32.2(a)(3).

         Kayer 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.

         The PCR 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 found."

         The Arizona Supreme Court denied without explanation Kayer's Petition for Review of the Superior Court's denial of post-conviction relief.

         4. Federal Habeas Petition

         On 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.

         II. Standard of Review

         "We 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).

         Kayer's 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.

         AEDPA 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).

         We 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).

         III. Causal Nexus and Ineffective Assistance of Counsel

         There 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.

         A. Causal Nexus

         Kayer 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 violate Eddings.

         1. Procedural Default and Exhaustion

         If 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.

         2. Merits

         We held 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).

         In 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 ...

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