George Kayer v. Charles L. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GEORGE RUSSELL KAYER, No. 09-99027
Petitioner-Appellant,
D.C. No.
v. 2:07-cv-02120-
DGC
CHARLES L. RYAN, Warden, Director
of the Arizona Department of
Corrections, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted March 8, 2018
Pasadena, California

Filed May 13, 2019

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

Opinion by Judge W. Fletcher;
Partial Concurrence and Partial Dissent by Judge Owens
2 KAYER V. RYAN

SUMMARY*

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

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 KAYER V. RYAN 3

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.

COUNSEL

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
4 KAYER V. RYAN

General; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Respondent-
Appellee.

OPINION

W. FLETCHER, Circuit Judge:

George Russell Kayer was convicted of 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.
 KAYER V. RYAN 5

Second, in the alternative, the Court held that even if there
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 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
6 KAYER V. RYAN

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.
 KAYER V. RYAN 7

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
8 KAYER V. RYAN

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/mitigation hearing”
took place on July 8, 1997. His attorneys put on five
witnesses. Their testimony was finished before noon.
 KAYER V. RYAN 9

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
10 KAYER V. RYAN

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 V. RYAN 11

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:
12 KAYER V. RYAN

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 . . . .
 KAYER V. RYAN 13

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
14 KAYER V. RYAN

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
 KAYER V. RYAN 15

causal nexus that mental impairment affected
his judgment or his actions at the time of the
murder.

Id.

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
16 KAYER V. RYAN

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 V. RYAN 17

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
18 KAYER V. RYAN

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
 KAYER V. RYAN 19

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).
20 KAYER V. RYAN

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 mental impairment evidence on the ground that the
alleged impairment did not have a causal nexus to the
commission of the crime. See McKinney, 813 F.3d at 821.

However, we cannot grant habeas relief if a constitutional
error was harmless. See Brecht, 507 U.S. at 637. Here, the
error was harmless. The Arizona Supreme Court’s causal
nexus ruling was an alternative holding. The Court’s
principal holding was that Kayer had presented so little
evidence of mental impairment that he had failed to establish
even the existence of any such impairment. See Kayer,
984 P.2d at 46. We recounted above the scant evidence of
mental impairment presented by Kayer’s counsel during the
penalty phase. Based on the evidence then before it, the
Arizona Supreme Court made a reasonable determination of
the facts in concluding that Kayer suffered from no mental
impairment. 28 U.S.C. § 2254(d)(2).

B. Ineffective Assistance of Counsel

Kayer also contends that he was denied his Sixth
Amendment right to effective assistance of counsel due to his
attorneys’ inadequate mitigation investigation in preparation
 KAYER V. RYAN 21

for his penalty phase hearing. See Wiggins v. Smith, 539 U.S.
510, 521–22 (2003). Kayer argued to the state PCR court,
and continues to argue here, that his defense attorneys should
have taken steps to investigate mitigation evidence beginning
at the time of their appointment. Kayer presented to the PCR
court evidence relating to both deficient performance and
prejudice.

1. Deficient Performance

a. Linda Williamson

Kayer was indicted on December 29, 1994. Linda
Williamson was appointed to represent him in January 1995.
Williamson was then in her fourth year as a lawyer. She
testified in the state PCR court that after graduating from law
school she had worked for the Maricopa County Public
Defender’s office for three years. While there she had
“participated in” “at least” six criminal trials. In December
1993, she left that office and moved to Prescott, Arizona, in
Yavapai County. After arriving in Prescott, she worked for
eight months for a criminal attorney and did one
“misdemeanor DUI.” She then began work as a contract
attorney for the county. When Williamson got the contract to
represent Kayer shortly thereafter, she had never represented
a client in a murder case, let alone a capital case.

Williamson testified in the PCR court that Kayer told her
that he had not killed Haas. Williamson’s paralegal’s billing
records reflect that this interview took place around February
1995, about a month after Williamson was appointed. After
interviewing Kester, Williamson concluded that a jury was
likely to credit her account rather than Kayer’s, and that
Kayer’s chance of acquittal if Kester testified was “slim to
22 KAYER V. RYAN

none.” She testified, “I did not see this case as fact-wise
being favorable to Mr. Kayer in any way, shape, or form.”

Williamson testified that she concluded that the best guilt-
phase strategy was to delay and to hope that Kester “would
implode and not become the star witness for the state.”
Kester had previously suffered from drug addiction and she
was pregnant with Kayer’s child. Williamson hoped that
Kester might again succumb to addiction, and that she might
disappear or decide not to testify because of her personal
relationship with Kayer.

Williamson testified that she asked a more experienced
attorney, James Bond, to “second chair” the case.
Williamson testified that she engaged Bond to help her with
the trial rather than with pre-trial preparation. Bond testified
in the PCR court that he billed no time on the case and knew
almost nothing about it. The record is unclear as to whether
Bond even entered an appearance on Kayer’s behalf.

The county compensated Williamson at a very low rate.
She testified that the county paid a lump sum of less than
$500.00 for the first 80 hours of work, and at a rate of
$40.00 per hour after that. Williamson billed a total of
122 hours, including the first 80 hours. Williamson had the
assistance of a retired detective who worked as an
investigator, though he was billed as a paralegal because he
did not have an investigator’s license. Williamson testified
that the investigator “did a lot of investigation to find out
what the State’s case [was].”

Williamson represented Kayer for seventeen and a half
months. She visited Kayer infrequently, once allowing eight
to ten months to elapse between visits. She did no
 KAYER V. RYAN 23

preparation for a penalty phase trial. She testified, “I can
absolutely tell you there was no focus on mitigation as far as
penalty phase.” Williamson testified that she never consulted
a mitigation expert. When asked whether her decision not to
investigate mitigation was strategic, she testified, “I don’t
know if it was strategic.” “I can’t tell you specifically that I
ever thought about mitigation pretrial.” Her investigator
spent no time preparing for the penalty phase.

On June 21, 1996, Williamson was allowed to withdraw
from representing Kayer on the ground that the attorney-
client relationship had broken down.

b. David Stoller and Marc Victor

David Stoller was appointed to replace Williamson at the
end of June 1996. Before becoming a defense attorney,
Stoller had worked for a number of years as a prosecutor. He
testified in the PCR court that as a prosecutor he had tried
“probably” forty to fifty felony cases, including one death
penalty case. He also had done “some post-conviction relief
matters that were death penalty as a prosecutor,” and had
done two post-conviction matters as a defense counsel. He
had never defended a capital case as trial counsel.

Stoller worked on his own for three and a half months.
He had no paralegal and he did much of his own secretarial
work. Some secretarial work was hired out on a piece-work
basis. On September 17, 1996, at the request of Kayer, Marc
Victor was appointed as second chair. Victor had graduated
from law school two years earlier, in the spring of 1994.
Victor had formed a relationship with Kayer while
representing him in a “prison contraband” case that arose
24 KAYER V. RYAN

while Kayer was being held in county jail awaiting trial in his
capital case.

Stoller testified in the PCR court that no mitigation
investigation had been done before he was appointed to
represent Kayer. He found the guilt-phase work done by
Williamson’s investigator unhelpful. He testified, “I was
going to have to redo, re-plow the ground myself.” Stoller
testified that he nonetheless did not “initially” “seek the
assistance of investigative services” when he was appointed
to represent Kayer. Without consulting Stoller, Kayer’s
family had hired an investigator with their own money.
Stoller spoke with that investigator several times on the
telephone. He testified that he also found the work of that
investigator unhelpful. Stoller never asked the investigator to
do any mitigation investigation.

Victor testified in the PCR court that when he came on
the case in mid-September 1996 very little had been done.
When he first got the case file, it was “a disaster.” “I was
appalled. I felt that a lot of time had passed. Very little was
done and I frankly was embarrassed that I now was an
attorney on a case that was so disorganized[.]” Victor filed
a “blizzard of motions” in January 1997. At that point, a little
more than two years after Kayer’s indictment for capital
murder and six months after Stoller had been appointed to
represent him, no mitigation investigation had been done.

One of Victor’s motions, filed on January 15, sought
funds for two investigators—a “general purpose”
investigator, and a mitigation investigator. The motion was
granted on February 24 as to the general purpose investigator,
but was “deferred” as to the mitigation investigator “unless
and until there was a guilty finding in the case.” Victor
 KAYER V. RYAN 25

testified that the deferral “put a halt to our mitigation efforts
. . . . That would have been less of a problem had I been
involved in this case from the very beginning, and then could
have had a more reasonable opportunity to maybe both do a
mitigation workup myself, as well as prepare motions and get
ready for the guilt phase.” “[G]iven the circumstances [that]
the case had substantially languished for an unreasonable
length of time at the time I got involved[,] . . . [the deferral]
was devastating to our ability to undertake mitigation.”
Neither Stoller nor Victor sought rehearing of the motion for
funds for a mitigation investigator. Nor did they appeal the
court’s deferral of the motion.

Victor testified in the PCR court that, in his view, early
investigation of mitigation evidence was less important at that
time than it later became, after the Supreme Court decided
Ring v. Arizona, 536 U.S. 584 (2002), requiring jury
sentencing in capital cases. Victor was asked, “Would you
agree . . . that counsel must begin mitigation investigation
immediately upon an appointment to a capital case?” Victor
responded, “[T]he answer today is a little different than the
answer at the time that I was representing Mr. Kayer, where
in Arizona, at least, the court made [the sentencing decision].
The reason that’s important is because there is at least
availability of much more time from the guilt phase to the
sentencing phase, with the judge sentencing.”

Trial began on March 5, two weeks after the deferral of
the motion for funds for mitigation investigation. The jury
returned a verdict of guilty on March 26. The court
scheduled Kayer’s sentencing hearing for May 27. On April
8, funds were authorized for a mitigation investigator.
According to Stoller’s records, his first substantive
conversation with the investigator, Mary Durand, was on May
26 KAYER V. RYAN

14, more than a month later, though Stoller testified that he
may have talked to her earlier: “Well, I had notes between
April 9th and May 14th—whether they were lost—I can’t
believe I did nothing during this period, but I know that I
spoke to her at length on the evening of May 14th and I think
I may have had other contacts.” Durand first met with Kayer
on May 21, a week after the conversation with Stoller and six
days before the original date for the sentencing hearing.

c. Mary Durand

When Mary Durand testified at Kayer’s sentencing
hearing, she had already worked as a mitigation specialist on
almost one hundred capital cases. When she testified in the
PCR court, she had worked on one hundred and fifty. She
testified in the PCR court that to her knowledge no mitigation
specialist in Arizona had worked on more capital cases.

Durand testified in the PCR court that spending a
substantial amount of time with a capital defendant,
beginning very early in the case, is essential in order to build
trust. Most capital defendants “believe, at least initially, that
the pursuit of a mitigation case is necessarily a concession of
guilt.” Durand testified that the “time required to develop
rapport and trust with a capital client typically takes a
hundred hours.” She testified, “When you spend time talking
to them, if you have the proper amount of time, every
occasion but one, in capital cases that I have done, I have
gotten the client’s permission to do what I need to do.”
Durand wrote in an affidavit filed in the PCR court, “[T]o
investigate and develop the mitigating factors in a capital case
may well require up to 1500 hours,” including “200 plus
hours (40 hours a month for five months) to interview, review
and consult with the client.”
 KAYER V. RYAN 27

Durand testified that it is important to begin mitigation
investigation early: “You work with them to help them
understand what mitigation is, why it’s important[.]” She
testified further:

One of the most important things that you
do in mitigation is get all the records that you
possibly can, documents that you can have in
your hand. And part of that is because many
clients who have head injuries, high fevers,
brain damage of any kind, accidents and
mental illness, don’t remember incidents that
occurred, or remember them incorrectly.

So I try not to talk to clients about
important issues in their life until I have the
records.

Durand testified in the PCR court that her first substantive
conversation with Stoller was on May 14. She was emphatic
that she had had no substantive conversation with Stoller
before that date. When Stoller talked to Durand on May 14,
the penalty phase hearing may already have been rescheduled
from May 27 to June 24 or 25. (The hearing was ultimately
held on July 8.) Durand testified that Stoller did not tell her
during their conversation that the penalty phase hearing was
imminent and that time was of the essence.

Durand testified that she met with Kayer twice for a total
of seven hours, on May 21 and June 5. Durand learned from
Kayer when they met on May 21 that the hearing was
imminent.
28 KAYER V. RYAN

Durand’s first meeting with Kayer was a “cold call.” She
testified, “I had no documents. I had nothing.” At that
meeting on May 21, Kayer “show[ed] an initial reluctance to
allow [her] to pursue mitigation.” However, he was willing
to provide the names of his mother and sister, along with
addresses and phone numbers. He also told Durand that he
believed his mother would have some records, though, as it
turned out, his mother was unable to locate any records when
Durand went to see her. At the first meeting on May 21,
Durand persuaded Kayer to sign releases, enabling her to
request documents relevant to mitigation. Durand promptly
sent requests, accompanied by the releases, to the institutions
holding the documents, even though it was likely that few
(perhaps none) of the requested documents would be
provided in time for the penalty phase hearing. She testified,
“I sent [the releases] to all the places that I believed there
might be records.” None of the school, mental health, and
military records sought by Durand were provided by the date
of the hearing on July 8.

When Kayer met Durand on May 21, he had never heard
the term “mitigation.” Durand testified that Kayer “was
extremely unhappy when he realized that [a mitigation
investigation] should have been started the day he was
arrested or indicted, and that the two and a half years he’d
already been in the jail could have been used to do the
mitigation.” She testified:

I explained what I did in broad terms. He
said that he had never heard the term
[mitigation] before. Had no idea what it
meant. . . .
 KAYER V. RYAN 29

We talked at great length about mitigation.
He had lots of questions. But everything
came back to time; “How much time will that
take?”

And I said, “Well, might take six or eight
months just to get the military records.”

His response was, “You don’t have six to
eight months because I don’t have six to eight
months.” And I could not get him past that.

Kayer allowed Durand to involve his mother and sister
and was willing to sign releases. However, Kayer was
adamant that he did not want to pursue mitigation research
that would involve substantial delay. Kayer did not have “six
to eight months” because, Durand testified, he “wanted
desperately to get out of the Yavapai County Jail.” She
testified, “He hadn’t been getting his medications [for his
heart condition].” Further, and more important, “[H]e was
terrified that he was going to be killed, that he would lose his
life in that facility.” There had already been a murder in the
jail, and Kayer “had been assaulted and hospitalized in the
jail infirmary for his injuries.” Durand’s contemporaneous
notes of her interviews with Kayer recorded, “Afraid he’ll
lose his life here.”

On June 6, the day after Durand’s second meeting with
Kayer, the trial court held a case management meeting.
Durand was traveling and was unable to attend. Kayer and
Victor were present; Stoller appeared by telephone. Stoller
informed the court that Kayer “simply did not want to be in
the County jail system any longer” and that he opposed any
continuance. Kayer told the court that he did not believe that
30 KAYER V. RYAN

Durand would be able to discover any useful mitigation
information. Kayer stated:

[F]rom what I understand in my conversation
with Mary Durand, she is talking about a fetal
alcohol syndrome that possibly existed. She
hasn’t had the opportunity to investigate it,
and some minor areas and details in my life
that I personally can’t see how they would
relate to mitigation in this case. . . . I’m
saying I don’t see anything here of substantial
value. . . . I don’t feel the lack of Mary
Durand’s mitigation is going to be a major
factor in the decision [whether I am sentenced
to death].

The court indicated that it might be willing to continue the
date of the penalty phase hearing for perhaps thirty days and
asked Kayer if he wanted a continuance:

[I]f I do move it, I’m not about to move it
anywhere near 180 days off. I’m probably not
even thinking seriously about 90 days off.
I’m thinking maybe I could be talked into an
additional 30 days, something like that, if
there was some specific purpose.

Based on his belief that Durand would not be able to discover
useful information, Kayer opposed any continuance:

Believe me, if I thought that—that Miss
Durand had valid evidence that should be
presented in front of this Court, I’d be
scratching and clawing and asking for
 KAYER V. RYAN 31

180 days as well. I’m not in favor of any
more continuances. Does that answer your
question?

d. Keith Rohman

Keith Rohman testified as a mitigation specialist in the
PCR court. Rohman had done mitigation work in capital
cases for many years. He was a licensed private investigator
and Adjunct Professor at Loyola Law School in Los Angeles.
He testified in the PCR court: “[O]ne of the very first steps
in any capital mitigation representation is to meet the client,
start to establish a relationship with the client and attempt the
process of collecting a life history, information that might be
relevant. . . . [T]hat first meeting is really critical because it
is [the] spot where you start the process of educating the
client.” Rohman testified that a “significant number,” of
capital defendants initially resist mitigation investigations,
“[a]nd so it takes some time to work through[.]” Rohman
testified that an additional reason to start mitigation
investigation “from day 1” is that information learned in the
investigation can sometimes help at the guilt phase of the
case. Rohman testified that this “protocol and practice” in the
“field of mitigation” had been well established by 1995, when
Kayer was indicted.

e. Larry Hammond

Larry Hammond testified in the PCR court on behalf of
Kayer. At the time of his testimony, Hammond had practiced
law for thirty-six years. After graduation from law school, he
had been a law clerk to Justices Hugo Black and Lewis
Powell. He had been a founding board member of the
Arizona Capital Representation Project in 1989, and had
32 KAYER V. RYAN

continued as a board member since then. He had been Chair
of the State Bar Indigent Defense Task Force, paying
particular attention to representation in capital cases, since the
mid-1990s. He had been appointed in the late 1990s by the
Arizona Supreme Court to serve on the Post-Conviction
Relief Appointment Committee, whose function was to
“screen applicants for appointment to undertake work as post-
conviction relief counsel in capital cases.” Hammond’s
Phoenix law firm had had at least one active capital case in
the office at all times since 1981, and he had been the “lawyer
primarily responsible for all of them.” He had been lead
counsel in ten capital cases. In three of those cases, he had
been lead counsel from start to finish—two cases in Arizona
state court in 1991 and 1994, and one case in federal court in
Arizona in 2005.

Hammond’s testimony focused on the standard for
effective assistance of counsel in capital cases that had been
established by 1995, when Kayer was indicted. Specifically,
Hammond testified that the standard of practice he described
was based on ABA guidelines from 1989 and other sources
from that period. “[T]he information that I provided [in my
testimony today] was well known in Arizona and elsewhere
from as far back as the 1980s.”

Hammond testified that in a capital case “it is of critical
importance to develop both the guilt-innocence side of the
case and the sentencing side of the case from the beginning.”
Hammond testified, consistently with Durand, that capital
defendants initially resist doing mitigation research at the
beginning of a case. In part, defendants “instinctively”
believe that mitigation will become relevant only after
conviction, and they want their attorneys to focus on the
guilt-innocence side of the case. Further, defendants are
 KAYER V. RYAN 33

“embarrassed” and do not want to involve people such as
“family members and their high school basketball coaches
and people who they have known growing up.” Still further,
conditions in county jails are not conducive to effective
communication: A client is “there for 19 months or
20 months or two years waiting for trial. So dealing with a
client and explaining to a client why mitigation is important
in that environment can be doubly difficult.” Finally, “most
people charged with capital crimes have some form of what
I would call a mental health issue or problem.”

Hammond testified that a capital defendant’s initial
resistance is almost always overcome when a client is
properly advised at the beginning of the case:

[I]n case after case after case the opening
experience—not just with me and my
clients—but with the other defendants facing
death . . . was what I described earlier. This
resistance. But eventually for virtually every
one, virtually every one of those defendants,
they began to see that the mitigation part of
the case was important.

Hammond specifically addressed the need to educate
judges, as well as clients, about the importance of getting an
early start on mitigation work. He testified, “[A] mere denial
of either the client to wanting to do mitigation or the court to
providing the resources cannot be the end of the
conversation.” “[T]here is an inherent logic and simplicity in
getting the resources necessary for capital defense. And in
cases all across the country once the case is laid out, once the
explanation is given to good judges about what is necessary
and why it’s necessary, the experience is that good judges
34 KAYER V. RYAN

say: ‘I understand that and now we will work together to
make it happen.’ ”

Hammond also specifically addressed Victor’s view that
getting an early start on mitigation work was less important
during the pre-Ring period when judges rather than juries
determined sentences in capital cases in Arizona. Hammond
was unequivocal that Victor was incorrect:

The need for the development of a mitigation
case is no different in Arizona prior to Ring
than it is after Ring. . . . [T]he concept that a
lawyer can simply wait until after the guilt
phase to begin doing mitigation is simply
wrong. . . . If you knew nothing else other
than that a capital defense lawyer said “I can
defer all mitigation until after the trial”, that
lawyer is acting at a level far below what is
deemed acceptable under any kind of a
Strickland analysis for lawyers in Arizona or
in any of the other six or seven states that
prior to Ring had judge sentencing.

2. Prejudice

Kayer’s post-conviction counsel presented extensive
mitigation evidence in the PCR court. His post-conviction
counsel contended that his trial attorneys could have
uncovered and presented this evidence at his sentencing
hearing if they had performed a proper mitigation
investigation.
 KAYER V. RYAN 35

a. Personal and Family History

Kayer was born in Long Beach, California, in August
1954. In the first of many moves, the family moved to
Denver when he was two. Kayer’s father left the family
shortly after arriving in Denver. He never returned to the
family. He died of a heart attack at age thirty-nine. After his
father left the family, Kayer, his older stepsister, and his
mother moved to Bloomington, California.

According to his mother and his uncle, Kayer was slow to
walk. He had poor balance and fell frequently. His mother
recounted that “he always had bruises . . . on his head and
body.” His uncle recounted that his mother was afraid to take
him shopping because he was “covered with bruises.”
According to his uncle, he was slow at all his developmental
stages. His mother recounted that Kayer had great trouble
falling asleep.

Kayer was dyslexic. In an interview with Mark Goff, an
investigator for Keith Rohman, Kayer stated that he was good
with numbers, but that “[t]o this day he has to write things
three or four times to get the spelling right.” Kayer recounted
in the interview that “[i]n school he flunked English, but got
A’s in everything else.” (As will be seen in a moment,
Kayer’s recounting of his school grades was inaccurate to the
point of being delusional.) Kayer told Goff that at age seven
he came to believe (and then continued to believe) that he had
come to earth from another planet.

Kayer and his mother moved to Arkansas after ninth
grade. Kayer began using drugs when he was sixteen. He
told Goff that he would “smoke weed almost every day,” and
would usually use speed on the weekends. He recounted
36 KAYER V. RYAN

“Speed works good for a night owl.” Kayer would
sometimes use LSD.

Some of Kayer’s high school grades are in the record. In
the fall of the ninth grade in Fontana, California, he got one
B (in Drafting), five Cs, and one D (in English). In the
spring, he got two Bs (in Typing and PE), one C, two Ds, and
two Fs (in History and English). In fall of the tenth grade in
Morrilton, Arkansas, he got one C (in English), four Ds, and
one F (in Algebra). In the spring, he got one B (in Speech),
two Ds, and two Fs (in English and PE). Kayer left high
school, in Seligman, Arizona, without graduating, leaving
either at the end of his junior year or part way through his
senior year.

After leaving high school, Kayer enlisted in the Navy. He
was seventeen years old. Within eight months, he had two
“unauthorized absences” (“UAs”). He was arrested and jailed
in Texas at the end of his first UA. He returned voluntarily
from his second UA “in order to see a psychiatrist.” In May
1973, after his second UA, Kayer was referred to Bethesda
Naval Hospital with a diagnosis of “schizoid personality.”
He was held there for a little more than three weeks. Kayer
was discharged from Bethesda with a diagnosis of “passive-
aggressive personality.” In a written evaluation at discharge,
Lieutenant Commander M. D. Fitz, head of the “Enlisted
Psychiatric Service,” characterized Kayer’s “impairment” as
“severe.” Fitz wrote, “In view of the severity of his
personality disorder it is recommended that he be
administratively separated from the service.”

After his release from the Navy, Kayer returned to
Arizona. At various times, he attended Yuma Community
College, Arizona State University, and Arizona Western
 KAYER V. RYAN 37

College, but received no degrees. In his interview with Goff,
Kayer stated that he never got a degree because he believed
he could make more money buying and selling jewelry than
with a degree.

Kayer had two unsuccessful marriages in his early
twenties. Kayer’s second marriage was to an Afghan woman.
Kayer maintained in his interview with Goff that her uncle
was “the deposed king of Afghanistan.”

When Kayer was twenty-five or twenty-six, he met Cindy
Seitzberg. Kayer and Seitzberg never married, but they lived
together for several years. They had a son, Tao, who was
dropped in the delivery room and suffered permanent brain
damage. About six months after Tao’s birth, Seitzberg began
work as a stripper while Kayer stayed home to take care of
Tao. When Tao was about one, Seitzberg left Kayer.
Kayer’s half-sister Jean Hopson testified in the PCR court,
“[Cindy] had brought [Tao] to my mother’s and asked if she
would like to keep him for the weekend, and my mother said
‘yes.’ And we never saw her again.” Hopson and Kayer’s
mother became co-guardians of Tao.

Beginning in his mid-twenties, Kayer began committing
property crimes. He first committed a series of burglaries
with a friend, Peter Decell. They were caught, and Kayer
served a short time in jail in Arizona. Shortly after his release
from jail, Kayer was arrested for burglary in Arkansas. Later,
when she was pregnant with Tao, Seitzberg served as a
lookout for Kayer while he committed burglaries. Kayer
continued committing burglaries well into his thirties.

Interspersed with his burglaries, Kayer worked as a
photographer, a salesperson for a satellite communications
38 KAYER V. RYAN

company, a hazardous waste remover, and a buyer, maker and
seller of jewelry. He never held a job for a sustained period.
His cousin, Barbara Rogers, testified at the PCR hearing,
“[H]e had trouble with holding . . . a job. . . . He had trouble
working for others. . . . [H]e had a lot of emotional
problems, depression.”

Kayer began drinking alcohol regularly when he was
about twenty-one, and soon became a very heavy drinker.
Peter Decell recounted that during their time together Kayer
would drink beer “for breakfast, lunch and dinner.” Kayer
reported that when he was twenty-five he was drinking half
a quart of bourbon a day. When Kayer checked himself into
a Veterans Administration hospital at age thirty-five, Dr. A.
Rodriguez reported that Kayer was “acutely intoxicated.”
“He presented himself with a very strong odor of alcohol, and
it was very difficult for him to get his thoughts together
because of alcohol intoxication. The patient had been
drinking continuously and heavily for the past seven years[.]”

Sometime in his twenties, Kayer became a compulsive
gambler. His half-sister Jean Hopson testified that he had a
“gambling addiction.” Kayer told Hopson that he had a
gambling “system.” Kayer’s cousin, Barbara Rogers,
testified that her close girlfriend dated Kayer for a time, and
that when the girlfriend and Kayer went to Las Vegas, “she
could not get him away from the . . . gambling table. He
would not leave.” In his mid-thirties, while in prison in
Arizona on a burglary conviction, Kayer engaged in illegal
bookmaking. After release and while on “house arrest,”
Kayer took off his ankle bracelet and flew to Las Vegas to
gamble. Kayer turned himself in after he had lost all his
money. He was sentenced to an additional nineteen months
for violation of parole.
 KAYER V. RYAN 39

Beginning shortly after his release from the Navy at age
eighteen, Kayer experienced severe mood swings. His
mother and sister both described his mood swings in their
testimony at his sentencing hearing. See supra at 9–10.
Barbara Rogers testified in the PCR court about Kayer’s
“manic behavior.” As an example, she described a trip Kayer
decided to take, “out-of-the-blue when it wasn’t prepared, it
wasn’t a good time.” “I kept telling him no. And he was just
real excited about it, wouldn’t stop talking about it.” In her
interview with Goff, Seitzberg recounted, “I would stay up
with him at night and . . . would see mood swings. . . . [He]
would either work [at something] all out, or do nothing.”

In 1983, shortly after the birth of his son Tao, Kayer went
voluntarily to a VA hospital. Kayer was twenty-nine. He
was observed to be “agitated” and “tearful.” Kayer is quoted
on the VA form as saying, “I just want to know what’s
wrong.” The form records: “P: to see MD.” Immediately
below, a doctor with an illegible signature wrote, “Pt is
depressed with some suicidal ideation” and “diagnosis:
adjustment disorder with depressed mood.”

Six years later, in 1989, Kayer checked himself into a VA
hospital, where he was kept for eighteen days. Dr. A.
Rodriguez wrote on the VA form that Kayer had been
“admitted . . . with depression and suicidal ideation.” “He
admitted to suicidal and homicidal ideations towards his
girlfriend [who had just left him] and her boyfriend, but
didn’t plan to do anything to them while he is in the hospital,
and wanted some help.” Dr. Rodriquez wrote that Kayer
“showed bipolar traits.” At the time of discharge, Kayer was
“not considered to be a danger to himself or others.” At
discharge, he was prescribed one month’s supply of lithium,
a standard medication for bipolar disorder.
40 KAYER V. RYAN

In 1990, Kayer was referred to a VA “Day Treatment
Center” for therapy, with a “provisional diagnosis” of
“Personality Disorder/Bipolar.” Kayer told a probation
officer in 1990 that until he was diagnosed during his stay at
the VA hospital in 1989 “he had no idea what was wrong
with him.”

Kayer had a history on both sides of the family of
alcoholism, compulsive gambling, and mental illness.

Kayer’s father, who left the family when Kayer was two
and died at age thirty-nine of a heart attack, was an alcoholic
and compulsive gambler. One witness testified at the PCR
hearing that Kayer’s father “wasn’t happy unless he was
gambling.”

On his mother’s side, Kayer’s Aunt Opal Irene Marchman
(one of his mother’s three sisters) testified about herself in the
PCR court, “I have [heard voices] all my life. My grandpa
heard voices. It runs in the family.” She testified that Kayer
heard voices, too: “I was just telling him about my life and
he said ‘I thought it was normal[.] I hear voices, too.’” She
testified, further, that alcoholism and depression “run[] in the
family.”

Kayer’s Aunt Ona Mae Tanner (another of his mother’s
sisters) was an alcoholic with severe mood swings. Ona
Mae’s daughter, Jean Reilly, was an alcoholic and
compulsive gambler who was first diagnosed as
schizophrenic and then as bipolar (manic depressive). Jean
Reilly’s niece, Barbara Rogers, testified in the PCR court that
Jean had “electric shock therapy” after a “nervous
breakdown.” Jean’s daughter, Constance Stabile, testified,
“[A]bout every year [Jean] would get manic, very manic and
 KAYER V. RYAN 41

hyper and she couldn’t sleep and [would] lose weight[.]”
Stabile testified that Jean married her last husband on a manic
high a week after meeting him at an Alcoholics Anonymous
meeting, and that she once went to Las Vegas on a manic
high and “blew” her “entire retirement” in a single weekend.

Kayer’s Aunt Olita “Aunt Tomi” Sandstrom (the third of
his mother’s sisters) was an alcoholic. Aunt Opal Irene
testified in the PCR court that her “baby sister” Olita drank
“excessively.” She testified that Olita was also severely
depressed: “She would just sit and stare into space like—it
was bad.”

Kayer’s Uncle John Williams (his mother’s one brother)
also had mental problems. Aunt Opal Irene testified, “He fell
and hit his head in a creek in Oklahoma and he just never did
do too good after that.” John Williams’ niece, Barbara
Rogers, testified, “My Uncle John was a thief, a robber, he
held his own family members at gunpoint and knifepoint a
few times. And he just was not a good person to have
around.”

On October 21, 1994, Kayer was admitted to a VA
hospital after suffering a severe heart attack. He had just
turned forty. His father had died of a heart attack at age
thirty-nine. The VA hospital form recorded, “The patient . . .
presented . . . with a history of anterior precordial chest pain
starting at about 1 o’clock in the afternoon, no relief after
three beers.” Doctors wanted to keep Kayer in the hospital,
but after three days he checked himself out “against medical
advice.”

Kayer killed Haas six weeks later.
42 KAYER V. RYAN

b. Professional Assessments

(1) Dr. Anne Herring

Dr. Anne Herring, an Associate Professor of Clinical
Psychiatry and Neurology at the University of Arizona,
examined Kayer in prison on March 16, 2005, and
administered an extensive battery of tests. She testified in the
PCR court that Kayer received average scores on all tests
except one. Dr. Herring wrote in her report that “on one of
the more cognitively challenging tests” Kayer “demonstrated
significant difficulty when required to execute complex
problem solving and persisted in applying incorrect concepts
despite receiving feedback.” She wrote, “[S]imilar deficits
have been associated with chronic heavy substance abuse,
traumatic brain injury, and with bipolar disorder.”

(2) Dr. Michael Sucher

Dr. Michael Sucher, a specialist in “alcohol and drug
addiction medicine” and Acting Director for the Arizona
Division of Behavioral Health in the Department of Health
Services, examined Kayer in prison on April 5, 2005, for
approximately two hours. Dr. Sucher reviewed Kayer’s
medical and psychological records in connection with his
examination.

In his report, Dr. Sucher reviewed Kayer’s history of
“chronic alcohol dependence,” and extensive history of
compulsive gambling. Dr. Sucher wrote that Kayer had spent
“probably one-quarter to one-third” of his interview
discussing gambling and the “systems for winning” he had
developed. Dr. Sucher wrote, “He really is in effect,
completely obsessed with gambling.”
 KAYER V. RYAN 43

Dr. Sucher testified in the PCR court that at the time of
the crime Kayer was impaired by the combination of
alcoholism and obsessive gambling:

[H]e had untreated alcoholism and untreated
pathological gambling; that both of those
disorders impair one’s judgment. And . . . the
pursuit of continued gambling and the pursuit
of continued drinking often make individuals
who are so impaired do things that they would
not normally do, some of which may involve
the commission of a crime or crimes.

(3) Dr. Barry Morenz

Dr. Barry Morenz, an Associate Professor of Clinical
Psychiatry at the University of Arizona, board certified in
General Psychiatry and in Forensic Psychiatry, interviewed
Kayer in prison on March 24 and April 19, 2005, for a total
of five and a half hours. Like Dr. Sucher, Dr. Morenz
reviewed Kayer’s medical and psychological records in
connection with his interviews.

Dr. Morenz wrote an extensive report and testified at
length in the PCR court. Dr. Morenz wrote that Kayer spent
much of the interview talking about gambling, explaining,
among other things, how he had developed a system for
predicting winning lottery numbers. Kayer told Dr. Morenz
that “the numbers for tomorrow’s lottery are already known
in the collective unconscious,” and that “using his spirit
guides and his mathematical algorithm,” he could predict
these numbers and “when he is released make 20 million
dollars.” Kayer also explained his belief in reincarnation
(which he called “recycling”), and his belief that there is
44 KAYER V. RYAN

“residue in him from when Mars was populated and perhaps
populations from other worlds as well.” (As noted above,
supra p. 35, Kayer began at age seven to believe that he had
come from another world.) Dr. Morenz characterized
Kayer’s beliefs as “really delusional.”

Dr. Morenz provided a diagnosis of Kayer at the time of
the interviews: “Bipolar type I disorder, hypomaniac;
Alcohol dependence in a controlled environment;
Polysubstance abuse in a controlled environment;
Pathological gambling; Cognitive disorder not otherwise
specified.” More important for our purposes, Dr. Morenz
provided a diagnosis as of 1994:

There are a number of factors that have
increased the risk of Mr. Kayer developing a
number of psychiatric problems. First, there
is considerable comorbidity among
psychiatric diagnoses. . . . In Mr. Kayer this
is relevant because people with bipolar
disorders and personality disorders are at an
increased risk of developing substance abuse
disorders. Also, people with personality
disorders have an increased risk of mood
disorders. Secondly, Mr. Kayer had a family
history of problems with alcohol, gambling
and bipolar disorder that increased his risk of
developing one or more of these disorders.
Thirdly, as a child Mr. Kayer grew up with
significant instability including frequent
moves and his father’s sudden death when Mr.
Kayer was still very young which probably
contributed to his later psychiatric difficulties.
There is evidence that even as a child Mr.
 KAYER V. RYAN 45

Kayer was showing signs of emotional
problems as his performance in school was
not good. This poor school performance was
probably an early sign of a bipolar disorder or
a personality disorder or a combination of the
two. By the time Mr. Kayer washed out of the
military Mr. Kayer likely had moderately
severe psychiatric problems that went
untreated. . . . [I]t seems clear that he has
suffered from serious psychiatric problems
during most of his adult life and he continues
to show signs of those problems today. . . .

At the time of the murder in 1994 Mr.
Kayer was probably having serious
psychiatric problems. 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. These
difficulties were likely superimposed on his
personality disorder problems and his
cognitive disorder not otherwise specified.
Mr. Kayer’s belief that he would not live long
as a result of the heart attack he had suffered
a few weeks before the murder was another
important source of emotional distress that
was likely exacerbating all his other problems
during this period.
46 KAYER V. RYAN

3. Discussion

The Sixth Amendment guarantees effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
A defendant is denied his or her right to effective assistance
when “counsel’s representation f[alls] below an objective
standard of reasonableness” and “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
688, 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.

The right to effective assistance of counsel extends to the
sentencing phase of a capital trial. Id. at 686–87. All
criminal defense attorneys have a “duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691. For capital
defense attorneys, this duty to investigate includes an
“obligation to conduct a thorough investigation of the
defendant’s background.” Williams v. Taylor, 529 U.S. 362,
396 (2000).

In a brief written order, the state PCR court held that
Kayer had not established a Sixth Amendment violation
under Strickland. The court wrote as to his attorneys’
performance:

The court concludes that at the time of
sentencing, the defendant voluntarily
prohibited his attorneys from further pursuing
and presenting any possible mitigating
evidence.
 KAYER V. RYAN 47

In the alternative, the court wrote as to 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.

(Emphasis in the original.)

The order of the PCR court was the last reasoned decision
of the state court. Wilson v. Sellers, 138 S. Ct. 1188, 1194
(2018). We must determine whether the PCR court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court” as of May 8, 2006, when the state
PCR court issued its decision, or was 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. Performance

With respect to the “performance prong,” the state PCR
court concluded that Kayer’s attorneys had provided effective
assistance. Its only finding in support of that conclusion was
that “at the time of sentencing” Kayer had voluntarily
prohibited his attorneys from pursuing and presenting any
additional mitigating evidence. We need not disturb the PCR
court’s conclusion that Kayer acted voluntarily at the time of
sentencing in prohibiting his counsel from pursuing
mitigation, for the state PCR court asked, and answered, the
wrong question. The question is not whether Kayer
voluntarily prevented his counsel from pursuing mitigation in
mid-1997. The question is whether Kayer’s counsel should
have begun mitigation efforts when first appointed to
48 KAYER V. RYAN

represent him in January 1995. Kayer presented precisely
this question to the PCR court.

“The failure to timely prepare a penalty-phase mitigation
case is . . . error.” Allen v. Woodford, 395 F.3d 979, 1001
(9th Cir. 2005). Mary Durand, Larry Hammond, and Keith
Rohman all testified in the PCR court that in 1995
professionally competent representation required that
mitigation efforts be started at the very beginning of a capital
case. Durand testified that it is essential to spend substantial
time with a capital defendant, beginning very early in the
case, in order to build trust and understanding. Hammond
testified that “it is of critical importance to develop both the
guilt-innocence side of the case and sentencing side of the
case from the beginning.” (Emphasis added.) Rohman
testified that “one of the very first steps in any capital
mitigation representation is to meet the client, start to
establish a relationship with the client and attempt the process
of collecting a life history[.]” Hammond and Rohman both
testified that by 1995 it had become standard practice in
capital cases to begin mitigation efforts at the outset of a case.
Hammond cited the 1989 American Bar Association guidance
for capital representation, and testified that “the information
I provided [in my testimony today] was well known in
Arizona and elsewhere from as far back as the 1980s.”
Rohman testified that the “protocol and practice” he
described had been well established by 1995.

In Rompilla v. Beard, 545 U.S. 374 (2005), decided a year
before the decision of the PCR court, the Supreme Court held
that defense counsel had rendered deficient performance by
failing to investigate properly in preparation for the penalty
phase hearing. In reaching its conclusion, the Court relied on
performance standards established by the American Bar
 KAYER V. RYAN 49

Association. The Court wrote, “[T]he American Bar
Association Standards for Criminal Justice in circulation at
the time of Rompilla’s trial describes the obligation in terms
no one could misunderstand[.]” Rompilla, 545 U.S. at 387.
After quoting the relevant 1982 ABA Standards, the Court
wrote, “‘[W]e long have referred [to these ABA Standards]
as ‘guides to determining what is reasonable.”’ Id. (alteration
in original) (quoting Wiggins v. Smith, 539 U.S. at 510, 524
(2003). In a footnote, the Court referred to the 1989 ABA
Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases (“1989 ABA Guidelines”),
promulgated shortly after Rompilla’s trial, noting that they
were “specifically devoted to setting forth the obligations of
defense counsel in death penalty cases.” Id. at 387 n.7. See
also Wiggins, 539 U.S. at 524 (relying on the “well-defined
norms” of the 1989 ABA Guidelines, describing them as
“standards to which we long have referred as ‘guides to
determining what is reasonable’”).

The 1989 ABA Guidelines state unambiguously that
defense counsel in capital cases should begin investigation for
the penalty phase as soon as they are appointed.
Guideline 11.4.1(A) provides, “Both [guilt/innocence phase
and penalty phase] investigations should begin immediately
upon counsel’s entry into the case and should be pursued
expeditiously.” Guidelines 11.8.3(A) provides,
“[P]reparation for the sentencing phase, in the form of
investigation, should begin immediately upon counsel’s entry
into the case.”

Linda Williamson was appointed to represent Kayer at the
beginning of January 1995, six years after the issuance of the
1989 ABA Guidelines. Williamson represented Kayer for a
year and a half. During that time, she did no mitigation
50 KAYER V. RYAN

investigation. David Stoller was appointed to replace
Williamson at the end of June 1996. For six months, he did
no mitigation investigation. Marc Victor, who was appointed
to assist Stoller, moved on January 15, 1997, for funds to hire
a mitigation investigator. On February 24, the judge deferred
ruling on the motion until after conviction. Neither Stoller
nor Victor appealed or sought reconsideration of the order.
Funds for a mitigation investigator were finally authorized on
April 8. Stoller had his first substantive conversation with the
mitigation specialist, Mary Durand, on May 14. Durand first
met with Kayer on May 21, almost eleven months after
Stoller was appointed and almost two and half years after
Williamson was appointed. When Durand met with Kayer on
May 21, Kayer had never heard the term “mitigation.” The
penalty phase hearing, which had originally been set for
May 27, was held on July 8.

We hold that in failing to begin penalty phase
investigation promptly after they were appointed, Kayer’s
attorneys’ “representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. The
conclusion of the state 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.” 28 U.S.C. § 2254(d)(1); see Rompilla,
545 U.S. at 387.

b. Prejudice

A habeas petitioner must establish not only deficient
performance, but also “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
 KAYER V. RYAN 51

There are two questions to be answered in determining
whether Kayer was prejudiced by his attorneys’ deficient
performance. First, if his counsel had begun mitigation
efforts at the outset of the case, would Kayer have
cooperated? (Because, as will be seen in a moment, the
answer to this question is “yes,” we need not ask what his
counsel would have been able to discover in the absence of
Kayer’s cooperation.) Second, was the mitigation evidence
that was presented to the PCR court sufficient to establish a
“reasonable probability,” “sufficient to undermine confidence
in the outcome,” that the result of the sentencing hearing
would have been different? We address each question in
turn.

(1) Would Kayer Have Cooperated?

Mary Durand testified in the PCR court that it is common
for capital defendants to resist mitigation efforts at the
beginning, but that they virtually always come around and
cooperate with such efforts. When Durand testified in the
PCR court, she had worked on one hundred and fifty capital
cases. She testified, “When you spend time talking to them,
if you have the proper amount of time, every occasion but
one, in capital cases I have done, I have gotten the client’s
permission to do what I need to do.” Larry Hammond
testified to the same effect in the PCR court: “[E]ventually
for virtually every one . . . of those defendants, they began to
see that the mitigation part of the case was important.”

Kayer’s objection “at the time of sentencing” to further
mitigation research was not based on a categorical objection
to involving family members or to sharing personal
information. Indeed, he willingly provided contact
information for his mother, suggested that his mother might
52 KAYER V. RYAN

have relevant documents, and signed waivers that allowed
Durand to seek school, military, medical and psychological
records. Rather, his objection was based on two factors.
First, he wanted to be transferred out of the Yavapai County
Jail. There had been a murder in the jail, and Kayer had been
attacked in the jail. Durand testified in the PCR court that
Kayer “was terrified that he was going to be killed, that he
would lose his life in that facility.” When Durand told Kayer
on May 21 that she needed six to eight months, he responded,
“I don’t have six to eight months.” Second, as Kayer told the
trial court on June 6, he believed (mistakenly) that nothing
valuable would be discovered if a continuance were granted.
If he had believed that a continuance would produce valuable
information, he would have strongly supported a continuance.
As he expressed it, “Believe me, if I thought that—that Miss
Durand had valid evidence that should be presented in front
of this Court, I’d be scratching and clawing and asking for
180 days as well.”

The state PCR court made no factual finding with respect
to whether, if mitigation efforts had been begun at the outset
of the case, Kayer would have cooperated in those efforts. So
there is no factual finding to which we can defer. However,
even if we were to assume that the PCR court had made such
a finding, it would be have been “an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The
uncontradicted testimony of Durand and Hammond
established that it was a virtual certainty that Kayer would
have cooperated in a mitigation investigation if it had begun
in January 1995, at the beginning of the case, rather than in
late May 1997.
 KAYER V. RYAN 53

(2) Reasonable Probability of a Different Outcome?

(i) Waiver of Argument

Kayer presented to the PCR court extensive and
uncontroverted evidence of mental impairment. The State
could have argued to us that even if Kayer’s counsel had
sought to begin mitigation efforts at the outset of the case,
funds for mitigation investigation would not have been
authorized until after Kayer’s conviction. If this were so, the
State could have argued, much of the evidence presented to
the PCR court would not have been discovered and developed
even by competent counsel.

However, the State has not made this argument, perhaps
because it does not want to implicate itself as contributing to
the ineffectiveness of Kayer’s representation. We therefore
consider the argument waived. However, even if the State
had made the argument, we would reject it for essentially two
reasons.

First, Larry Hammond testified that a competent capital
defense attorney should work to persuade a judge of the
necessity of early authorization of funds for mitigation
investigation, and that a good judge will understand the
necessity and will authorize the funds. As described above,
Hammond testified, “[O]nce the explanation is given to good
judges about what is necessary and why it’s necessary, the
experience is that good judges say: ‘I understand that and
now we will work together to make that happen.’”

Second, even if the State would not have provided
mitigation investigation funds at the outset of the case, a
competent attorney could have done a great deal in their
54 KAYER V. RYAN

absence. One of the keys to a competent investigation, as
explained by Durand, is early gathering of medical,
psychological, school, and other documents. It would have
been a simple and inexpensive task to obtain waivers from
Kayer and to send for such documents. Durand obtained
waivers from Kayer at her first meeting with him and sent for
the documents immediately thereafter. It would also have
been a relatively simple task to interview known and easily
accessible friends and relatives. Williamson had an
investigator, but she never asked him to do such work. When
Stoller took over the case, he learned that Kayer’s family had
hired an investigator at their own expense. Stoller could have
asked that investigator to do such work, but he did not do so.
It would likely have been necessary to wait for state funding
to hire expert witnesses such as Drs. Henning, Sucher and
Morenz, but experts could have done their work fairly
quickly, even after conviction, if the relevant documents had
already been obtained and interviews had already been done.

(ii) Effect of New Evidence

Under Arizona law in 1997 when Kayer was sentenced to
death, mental impairment could be either a statutory or non-
statutory mitigating circumstance, depending on the degree of
impairment. There were five listed “statutory” mitigating
circumstances under Arizona law. The first of these was
mental impairment: “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) (1977). (All references are to the
1997 version of Arizona Revised Statutes unless otherwise
indicated.) If evidence of a “mental condition” did not
establish a mental impairment within the meaning of the
 KAYER V. RYAN 55

statutory mitigator and instead “merely establishe[d] a
character or personality disorder,” the mental condition was
considered as a non-statutory mitigator. State v. Fierro,
804 P.2d 72, 86 (Ariz. 1991) (internal quotation marks
omitted). In Kayer’s case on direct appeal, the Supreme
Court of Arizona held that he had presented insufficient
evidence to establish the existence of any mental impairment,
whether as a statutory or a non-statutory mitigator.

A comparison of Kayer’s case with other Arizona cases
demonstrates that the evidence he presented to the PCR court
was sufficient to establish a statutory mitigating circumstance
under Ariz. Rev. Stat. § 13-703(G)(1). See, e.g., State v.
Stevens, 764 P.2d 724, 727–29 (Ariz. 1988) (“capacity to
appreciate the wrongfulness of his conduct had been impaired
by his longterm use of drugs and alcohol” and constituted a
mitigating circumstance under § 13-703(G)(1)); State v.
Gretzler, 659 P.2d 1, 16–17 (Ariz. 1983) (drug use beginning
at age thirteen and continuing for over nine years “likely
impaired defendant’s volitional capabilities” and constituted
a mitigating circumstance under § 13-703(G)(1)).

In many ineffective assistance of counsel cases, enough
evidence has already been presented at the time of sentencing
to establish a mitigating circumstance. In such cases, when
additional evidence relevant to that circumstance is later
presented to the state habeas court, the additional evidence is
cumulative and typically does not establish prejudice. See,
e.g., Smith v. Ryan, 823 F.3d 1270, 1296 (9th Cir. 2016)
(“brain scans . . . were largely cumulative of the mitigating
evidence presented by Dr. Parrish”); Cunningham v. Wong,
704 F.3d 1143, 1163 (9th Cir. 2013) (“Dr. Coburn’s
testimony about Cunningham’s mental state . . . would [ ]
have been cumulative”); Lopez v. Ryan, 678 F.3d 1131, 1138
56 KAYER V. RYAN

(9th Cir. 2012) (“[T]he claim was a very narrow one and
related only to supplemental evidence”); Moormann v. Ryan,
628 F.3d 1102, 1113 (9th Cir. 2010) (finding no prejudice
because of the “cumulative nature of the new evidence”).

Kayer’s case is fundamentally different. The minimal
evidence of mental impairment presented at Kayer’s penalty
phase hearing was so speculative that the sentencing judge
and the Arizona Supreme Court on direct appeal found no
mental impairment whatsoever. Not only was the evidence
insufficient to establish a statutory mitigating circumstance
under Ariz. Rev. Stat. § 13-703(G)(1); it was insufficient
even to establish a non-statutory mitigating circumstance.
Instead of being cumulative, the evidence presented to the
PCR court of Kayer’s mental impairment established for the
first time its very existence.

The sentencing court and the Arizona Supreme Court on
de novo direct review weighed two statutory aggravating
circumstances against one non-statutory mitigating
circumstance. If the evidence of Kayer’s mental impairment
presented to the PCR court had been presented to the
sentencing court, that court and the Arizona Supreme Court
would have added to the balance the statutory mitigating
circumstance of Kayer’s mental impairment.

The two aggravating circumstances were commission of
the crime for “pecuniary value” under Ariz. Rev. Stat.
§ 13-703(F)(5), and a prior conviction of a “serious offense”
under Ariz. Rev. Stat. § 13-703(F)(2). The second
aggravating circumstance was relatively weak. “Serious
offense” was broadly defined under the statute, and Kayer’s
offense was at the less serious end of the spectrum. Among
the specified “serious offenses” were first degree murder,
 KAYER V. RYAN 57

second degree murder, manslaughter, aggravated assault
resulting in serious physical injury, sexual assault, and any
dangerous crime against children. Ariz. Rev. Stat.
§ 13-703(H)(1)–(6). Kayer’s prior conviction was for first
degree burglary.

The one mitigating circumstance at sentencing was the
relatively weak non-statutory mitigator of Kayer’s
importance in the life of his son. If the evidence presented to
the PCR court had been presented to the sentencing court, it
would have established an additional mitigating
circumstance—the statutory mitigator of mental impairment
under Ariz. Rev. Stat. § 13-703(G)(1).

The evidence supporting a finding of mental impairment
was extensive and uncontroverted. Kayer was slow to walk
and develop. Starting at age seven and continuing into
adulthood, Kayer believed that he was a reincarnated being
from another planet. He was dyslexic, was moved from
school to school, and got poor grades. He began using drugs,
including marijuana and speed, beginning in his teens. Kayer
left high school without graduating and joined the Navy. He
was discharged from the Navy a year later due to “severe”
mental “impairment.” He began drinking heavily when he
was about twenty-one and became severely addicted to
alcohol. He became a compulsive gambler sometime in his
twenties. His gambling addiction persisted unabated
thereafter.

Kayer suffered the emotional highs and lows typical of
bipolar disease. He voluntarily checked himself into VA
hospitals in 1983 and 1989. At the VA hospital in 1989, he
was given a prescription for lithium, a standard medication
for bipolar disease. In 1990 as an outpatient, he was given a
58 KAYER V. RYAN

provisional diagnosis of “Personality Disorder/Bipolar.” In
1990, Kayer stated that until he was diagnosed and given
lithium at the VA hospital in 1989, he had “no idea what was
wrong with him.”

Kayer had an extensive family history of mental disease.
His father was an alcoholic and a compulsive gambler. One
of his mother’s three sisters “heard voices.” That sister
testified that Kayer had told her that he heard voices, too.
The other two sisters were alcoholics and bipolar. His
mother’s one brother had mental problems. One of his
cousins was bipolar and underwent electroshock therapy.

The evidence presented to the PCR court established the
statutory mitigating circumstance of mental impairment under
Ariz. Rev. Stat. § 13-703(G)(1). The evidence also
established a causal connection between Kayer’s mental
impairment and the crime. Dr. Sucher testified that at the
time of the crime Kayer “had untreated alcoholism and
untreated pathological gambling.” Dr. Morenz testified that
at the time of the crime, Kayer “was having problems with
bipolar disorder symptoms . . . , he was having difficulties
with out of control pathological gambling and he had
difficulty with extensive alcohol abuse.” Kayer’s near-fatal
heart attack, at essentially the same age as his father’s fatal
heart attack, six weeks before the murder was “another
important source of emotional distress that was likely
exacerbating all of his other problems.”

We must decide whether “it was objectively unreasonable
[for the state PCR 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 [Kayer’s] counsel neither uncovered nor
 KAYER V. RYAN 59

presented.” Porter v. McCollum, 558 U.S. 30, 31 (2009) (per
curiam) (stating prejudice standard for ineffective assistance
of counsel in an AEDPA case). “We do not require a
defendant to show ‘that counsel’s deficient conduct more
likely than not altered the outcome’ of his penalty proceeding,
but rather that he establish ‘a probability sufficient to
undermine confidence in [that] outcome.’” Id. at 44
(alteration in original) (quoting Strickland, 466 U.S.
at 693–94).

The State argues that we must accord special deference to
the PCR court’s holding that Kayer suffered no prejudice
because the judge who presided over the PCR proceedings
was also the original sentencing judge. The State is incorrect.
We assess prejudice independent of the particular judge or
judges, as made clear by the Supreme Court in Strickland:

The assessment of prejudice should proceed
on the assumption that the decisionmaker
is reasonably, conscientiously, and
impartially applying the standards that
govern the decision. It should not depend
on the idiosyncracies of the particular
decisionmaker, such as unusual propensities
toward harshness or leniency.

466 U.S. at 695. A post-conviction court must assess whether
there is a reasonable possibility that

the sentencer—including an appellate court,
to the extent it independently reweighs the
60 KAYER V. RYAN

evidence—would have concluded that the
balance of the aggravating and mitigating
factors did not warrant death.

Id.

“[T]he test for prejudice is an objective one.” White v.
Ryan, 895 F.3d 641, 670 (9th Cir. 2018). In White, we
faulted the prejudice determination by the PCR court because
that “court determined whether it would have imposed a
death penalty if it had considered the mitigation evidence that
[defendant] failed to present [at the penalty phase].” Id.
(emphasis in original). We further faulted it for failing to
take into account the fact that the Arizona Supreme Court was
required to independently weigh the aggravating and
mitigating circumstances: “The PCR court erred by . . .
fail[ing] to consider the probability of a different outcome in
the Arizona Supreme Court.” Id. at 671. See also Mann v.
Ryan, 828 F.3d 1143, 1167 (9th Cir. 2016) (en banc)
(Thomas, C.J., concurring and dissenting) (“[T]he post-
conviction court was not excused from its obligation to apply
Strickland because the same judge presided over both [the
defendant’s] trial and post-conviction proceeding, and that
judge concluded that the newly introduced evidence would
not have changed his mind.” (emphasis in original)).

For a number of reasons, we conclude that the addition of
the statutory mitigating circumstance of mental impairment
could have changed the outcome of the sentencing
proceeding. In the words of the Supreme Court, the addition
of this mitigating circumstance created a “reasonable
probability the sentence would have been different,” Porter,
558 U.S. at 31, “sufficient to undermine confidence in the
outcome,” id. at 44 (quoting Strickland, 466 U.S. at 693–94),
 KAYER V. RYAN 61

and it was unreasonable for the state court to conclude
otherwise.

First, there was a substantial difference between the
evidence submitted at sentencing and the evidence later
submitted to the PCR court. In the sentencing court, there
was evidence supporting two statutory aggravating
circumstances and one weak non-statutory mitigating
circumstance. In the PCR court, there were the same two
statutory aggravators. But now there was an additional
mitigator—for the first time, the statutory mitigator of mental
impairment—where previously there had only been one weak
non-statutory mitigator.

Second, Kayer’s mental impairment had a direct causal
relationship to the crime, and would have been given
substantial weight at sentencing. In McKinney v. Ryan,
813 F.3d 798 (9th Cir. 2015) (en banc), we held that the
Arizona Supreme Court had for many years violated Eddings
v. Oklahoma, 455 U.S. 104 (1982), by refusing, as a matter of
law, to give any weight to would-be mitigating circumstances
such as mental impairment unless they had a “causal nexus”
to the crime of conviction. In State v. Anderson, 111 P.3d
369 (Ariz. 2005), the Arizona Supreme Court finally
abandoned the causal nexus test.

In post-Anderson cases, Arizona courts have considered
a broad range of mitigating circumstances. Mitigating
circumstances that are causally connected to the crime have
been given greater weight than circumstances with no causal
nexus. The Arizona Supreme Court wrote in 2006, “We do
not require that a nexus between the mitigating factors and
the crime be established before we consider the mitigation
evidence [but] the failure to establish such a causal
62 KAYER V. RYAN

connection may be considered in assessing the quality and
strength of the mitigation evidence.” State v. Newell,
132 P.3d 833, 849 (Ariz. 2006); see also, e.g., State v.
Velazquez, 166 P.3d 91, 106 (Ariz. 2007) (“This mitigating
circumstance [of drug and alcohol abuse] was proven by a
preponderance of the evidence, but Velazquez did not
establish that he was under the influence of drugs or alcohol
at the time of the murder.”); State v. Pandeli, 161 P.3d 557,
575 (Ariz. 2007) (“Pandeli’s difficult childhood and extensive
sexual abuse, while compelling, are not causally connected to
the crime. . . . We do not give this mitigating evidence
significant weight.”).

Kayer’s mental impairment under Ariz. Rev. Stat.
§ 13-703(G)(1) was causally connected to the crime and
would therefore have been given substantial weight. The
testimony of Drs. Sucher and Morenz made abundantly clear
the causal connection between Kayer’s mental problems and
the crime. Dr. Sucher specifically referred to Kayer’s
“untreated alcoholism and untreated pathological gambling”
at the time of the crime. Indeed, Kayer had been drinking
heavily on the day of the killing, and Kayer killed the victim
in order to obtain funds to continue gambling. Dr. Morenz
specifically connected the crime to Kayer’s “problems with
bipolar disorder symptoms,” his difficulties with “out of
control pathological gambling” and “extensive alcohol
abuse,” and his “heart attack . . . suffered a few weeks before
the murder.” Keith Rohman, the mitigation expert who
testified in the PCR court, connected these factors to the
crime, characterizing them as a “perfect storm.”

Third, the aggravating circumstances supporting
imposition of the death sentence were not overwhelming.
The sentencing judge had specifically rejected the
 KAYER V. RYAN 63

prosecution’s argument for the aggravating circumstance that
Haas had not been killed in “an especially heinous, cruel or
depraved manner” under Ariz. Rev. Stat. § 13-703(F)(6).
Further, one of the two aggravating circumstances found by
the Arizona Supreme Court was relatively weak. The
“serious crime” of which Kayer had previously been
convicted was first degree burglary, one of the less serious
crimes specified in Ariz. Rev. Stat. § 13-703(H). Indeed, all
of the prior crimes of which Kayer had been convicted were
property crimes. He had never been charged with, let alone
convicted of, a crime in which he had physically harmed
anyone. See State v. Hyde, 921 P.2d 655, 687 (Ariz. 1996)
(“We . . . find that defendant’s non-violent past is a non-
statutory mitigating circumstance.”).

Fourth, a comparison to other Arizona cases shows that
there is a reasonable probability that Kayer would not have
been sentenced to death if the mitigating evidence presented
to the PCR court had been presented to the sentencing court.
Cases in which the Arizona Supreme Court has imposed the
death penalty typically involve extreme behavior by the
defendant. Kayer’s case is unlike these cases. For example,
in State v. Cruz, 672 P.2d 470 (Ariz. 1983), defendant and
two accomplices robbed a married couple and the wife’s
mother. They bound the victims together on a bed, gagged
them, and shot all three in the head. They cut the throat of
one of the three victims. In State v. Chaney, 686 P.2d 1265
(Ariz. 1984), the defendant fired at least thirty shots with a
high-powered automatic rifle at a deputy sheriff while he sat
in a vehicle. One shot almost severed the deputy’s arm.
Another shot was fired at such close range that it left powder
burns on his body. In State v. Fisher, 686 P.2d 750 (Ariz.
1984), the defendant, in order to keep $500 in rent money he
had collected for the seventy-three-year-old victim, shattered
64 KAYER V. RYAN

her skull with three blows with a claw hammer. In State v.
Roscoe, 700 P.2d 1312 (Ariz. 1984), the defendant kidnapped
the victim, raped her vaginally and orally, strangled her, and
left her body in the desert.

Several cases in which the Arizona Supreme Court has
reversed a death penalty imposed by the trial court are similar
to Kayer’s case. For example, in State v. Stevens, 764 P.2d
724 (Ariz. 1988), the defendant robbed two people, shooting
and killing one of them. An aggravating circumstance was
killing for pecuniary gain. A mitigating circumstance was
mental impairment resulting from drug use. On de novo
review, the Arizona Supreme Court imposed a life sentence.
In State v. Rockwell, 775 P.2d 1069 (Ariz. 1989), defendant
stole money from the cash register at a truck stop and killed
an employee by shooting him in the back of the head. An
aggravating circumstance was killing for pecuniary gain. A
mitigating circumstance was a motorcycle accident when the
defendant was seventeen-years-old, causing “violent and
unpredictable behavior.” Id. at 1079. On de novo review, the
Arizona Supreme Court imposed a life sentence.

The Arizona Supreme Court case most closely on point is
State v. Brookover, 601 P.2d 1322 (Ariz. 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. As in Kayer’s case, the prosecutor had argued for
the statutory aggravator that the murder had been committed
in “an especially heinous, cruel or depraved manner,” but the
Court rejected the argument. Id. at 1325. An aggravating
 KAYER V. RYAN 65

circumstance was that Brookover had previously been
convicted of an offense “for which . . . a sentence of life
imprisonment or death was imposable.” Id. at 1323. The one
mitigating circumstance was mental impairment. The
Arizona Supreme Court set aside the death penalty that had
been imposed by the trial court:

We believe that the defendant’s mental
condition was not only a mitigating factor, but
a major and contributing cause of his conduct
which was “sufficiently substantial” to
outweigh the aggravating factor of
defendant’s prior conviction. Under the
circumstances, leniency is mandated.

Id. at 1326 (emphasis added).

The parallels between Brookover and Kayer’s case are
striking. In neither case was the killing committed in “an
especially heinous, cruel or depraved manner.” In both cases,
the one mitigating circumstance was the statutory mitigator
of mental impairment. In both cases, the killings were for
pecuniary gain. In 1979, pecuniary gain had not yet been
applied as a statutory mitigator beyond killings for hire, but
a year later the Arizona Supreme Court recognized that the
mitigator covered any killing for pecuniary gain. See State v.
Clark, 616 P.2d 888, 896 (Ariz. 1980); State v. Schad,
788 P.2d 1162, 1170–71 (Ariz. 1989) (applying Clark to a
murder that took place in 1978, a year before Brookover:
“Clark . . . merely recognized the pre-existing scope of
present law.”). Finally, in both cases, there was a statutory
aggravator for prior conviction of a serious offense.
However, when Brookover was sentenced, the statutory
aggravator required that the conviction have been for a crime
66 KAYER V. RYAN

for which the death penalty or life imprisonment could be
imposed. In Kayer’s case, the statutory aggravator required
less. It required only a conviction for a “serious crime,”
which in Kayer’s case was first degree burglary. On de novo
review of the evidence and sentence, the Arizona Supreme
Court sentenced Brookover to life imprisonment rather than
death. The Court held that leniency was “mandated.”
Brookover, 601 P.2d at 1326.

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, 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.

(iii) Disagreement with the Dissent

Our dissenting colleague concludes that we have not
given sufficient deference to the decisions of the Arizona
state court in this case. We recognize, as does our dissenting
colleague, that the standard under AEDPA is “highly
deferential” and “difficult to meet.” Harrington v. Richter,
562 U.S. 86, 102, 105 (2011) (citations omitted). The
standard is indeed high. As stated by the Supreme Court, the
precise standard in an ineffective assistance of counsel case
 KAYER V. RYAN 67

is that in order to set aside a state-court death sentence based
on new evidence, we must hold that the new evidence created
a “reasonable probability the sentence would have been
different,” and that the state court unreasonably determined
otherwise. Porter, 558 U.S. at 31.

Our colleague makes two related points. We respectfully
disagree with both of them.

First, our colleague contends that the Supreme Court’s
decision in Woodford v. Visciotti, 537 U.S. 19 (2002) (per
curiam), effectively determines the outcome in this case.
Visciotti cannot bear the weight our colleague places on it.

In Visciotti, defense counsel failed to perform an adequate
penalty-phase investigation. On state habeas, extensive new
mitigation evidence that defense counsel had not identified
was presented to a referee appointed by the California
Supreme Court. That Court engaged in a detailed analysis of
the new evidence and concluded that the failure to present
that evidence at sentencing did not prejudice Visciotti. In re
Visciotti, 926 P.2d 987 (Cal. 1996). Our court held that the
California Supreme Court had unreasonably concluded that
the new evidence did not establish a “reasonable probability”
of a different result at sentencing. Visciotti v. Woodford,
288 F.3d 1097, 1117–19 (9th Cir. 2002). The Supreme Court
reversed, emphasizing the care with which the California
Supreme Court had analyzed the new evidence and holding
that the Court was not “objectively unreasonable” in finding
no prejudice.

The facts in the two cases are similar, though, as our
colleague recognizes, they were somewhat less favorable to
Visciotti than they are to Kayer. But the cases arise in very
68 KAYER V. RYAN

different contexts. First, and most obviously, in our case we
ask what an Arizona rather than a California sentencing court
would have done. This is important because the statutes,
procedures, and case law in the two jurisdictions are different.
Second, in Visciotti there was a reasoned decision by the
California Supreme Court, but in our case there was no
reasoned decision by the Arizona Supreme Court. This is
critically important, given the Arizona capital sentencing
scheme at the time. Under Arizona law, the Arizona Supreme
Court was the ultimate sentencing court. On mandatory
direct appeal from a sentencing court, the Arizona Supreme
Court reviewed the evidence de novo and decided
independently whether to impose the death penalty. See, e.g.,
Kayer, 984 P.2d at 40–41.

In determining prejudice, therefore, we look to how the
Arizona Supreme Court would have assessed the new
evidence presented to the PCR court if that evidence had been
presented on direct appeal. We do not know how the Arizona
Supreme Court in Kayer’s case would have assessed on direct
appeal the evidence presented to the PCR court because that
evidence was not then in the record. Nor do we know how
the Arizona Supreme Court would have assessed that
evidence on collateral review because the Court denied
without explanation Kayer’s petition for review. The best we
can do is look at de novo sentencing decisions by the Arizona
Supreme Court in comparable cases. Those cases are the best
evidence of what the Court would have done if the new
mitigating evidence had been presented in Kayer’s direct
appeal.

Second, our colleague contends that we have not given
appropriate deference to the decision of the state PCR judge.
The PCR judge was also the sentencing judge. However,
 KAYER V. RYAN 69

“[t]he assessment of prejudice . . . should not depend on the
idiosyncracies of the particular decisionmaker[.]” Strickland,
466 U.S. at 695. “[T]he test for prejudice is an objective
one.” White v. Ryan, 895 F.3d 641, 670 (9th Cir. 2018). The
question is thus not what the PCR judge would have done in
light of the new evidence. The question, rather, is what the
ultimate sentencing authority, the Arizona Supreme Court,
would have done. We therefore must ask whether the PCR
judge was unreasonable in concluding that there was no
“reasonable probability” of a different result in the Arizona
Supreme Court if that Court had had before it the evidence
presented to the PCR court.

Unless we are to engage in sheer guesswork, the only way
to determine what the Arizona Supreme Court would have
done in light of Kayer’s new evidence is to look at what that
Court has done in comparable cases. We describe, above,
several decisions of that Court. One of them, Brookover, is
on all fours with Kayer’s case. The only difference is that
one of the statutory aggravators was stronger in Brookover.
The Arizona Supreme Court held in Brookover that leniency
was “mandated.”

Our colleague refuses to acknowledge the striking
parallels between Brookover and Kayer’s case, writing only:
“The majority’s reliance on State v. Brookover, 601 P.2d
1322 (Ariz. 1979), a forty-year-old case, ignores what the
state court did in this case.” Diss. Op. at 75 (emphasis
added). Our colleague maintains that we can safely ignore
Brookover because of its age (“a forty-year-old case”).

Our colleague misses the fact that when the Arizona
Supreme Court reviewed Kayer’s sentence de novo on direct
appeal, Brookover had been decided only twenty (not forty)
70 KAYER V. RYAN

years earlier. The Arizona Supreme Court in capital cases
routinely cites and treats as binding precedent its own
decisions from twenty years (and more) before. See, e.g.,
State v. Hedlund, 431 P.3d 181, 190 (Ariz. 2018) (discussing
and distinguishing State v. Graham, 660 P.2d 460 (Ariz.
1983); State v. Trostle, 951 P.2d 869, 885 (Ariz. 1997)
(discussing and relying on State v. Richmond, 560 P.2d 41,
52–53 (Ariz. 1976)). See also State v. Stuard, 863 P.2d 881,
902 (Ariz. 1993) (citing, inter alia, State v. Doss, 568 P.2d
1054, 1060 (Ariz. 1977), and writing, “Leniency is therefore
required”). Nothing in the practice of the Arizona Supreme
Court suggests that when it sentenced Kayer de novo in 1999,
it would have treated as less-than-binding a twenty-year-old
precedent. In that precedent— Brookover—the Arizona
Supreme Court had held, on facts less favorable to the
defendant than those in Kayer’s case, that a non-capital
sentence was “mandated.” Given Brookover’s holding that
“leniency” was “mandated,” it was unreasonable for the PCR
judge to conclude that in Kayer’s case there was no
“reasonable probability” that the Arizona Supreme Court on
direct appeal would have imposed a non-capital sentence.

IV. Other Certified Claims

Kayer asserts two additional certified claims with which
we may deal fairly quickly.

A. Continuance

Kayer argues that the sentencing court violated his Sixth
Amendment rights by acceding to his objection to a
continuation of his sentencing hearing. He argues that the
court should have disregarded his objection and instead
granted his attorneys’ request for a continuance. In light of
 KAYER V. RYAN 71

our holding, above, that the sentencing court unreasonably
concluded that Kayer’s attorneys performed effectively and,
in the alternative, if they performed ineffectively, that Kayer
suffered no prejudice, we need not reach the question whether
the court acted properly in denying the continuance.

B. Martinez

Kayer seeks to revive several procedurally barred guilt-
phase ineffective assistance of counsel claims by showing
cause and prejudice under Martinez v. Ryan, 566 U.S. 1
(2012). Post-conviction counsel’s ineffectiveness in failing
to raise a meritorious ineffective assistance of counsel claim
may constitute “cause” sufficient to overcome a procedural
bar. Id. at 17. To prevail, the petitioner must show that
(1) post-conviction counsel performed deficiently,
(2) effective counsel might have changed the result of the
post-conviction proceedings, and (3) the underlying
ineffectiveness claim was substantial. Pizzuto v. Ramirez,
783 F.3d 1171, 1178–79 (9th Cir. 2015). An evidentiary
hearing is appropriate if “such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief.”
Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016)
(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).

Kayer sought to revive several claims in the district court
and seeks to revive them here. The district court held that
none of the claims was substantial in the sense necessary to
support a finding of cause and prejudice under Martinez.
Upon review of the evidence, we agree with the district court.
72 KAYER V. RYAN

V. Uncertified Claims

Kayer seeks certification of two claims that the district
court declined to certify. We also decline to certify these
claims.

Conclusion

We reverse the decision of the district court with respect
to ineffective assistance of counsel at the penalty phase. We
otherwise affirm.

We remand to the district court with instructions to grant
the writ with respect to the penalty phase unless the State,
within a reasonable period, grants Kayer a rehearing with
respect to the penalty or vacates the sentence of death and
imposes a lesser sentence consistent with the law.

REVERSED in part, AFFIRMED in part, and
REMANDED with instructions.

OWENS, Circuit Judge, concurring in part and dissenting in
part:

While I agree with much of the majority’s decision, I part
ways as to its conclusion that we must reverse Kayer’s death
sentence. I cannot say that the Arizona PCR court acted
unreasonably regarding prejudice in light of the aggravating
and mitigating circumstances in this case.

The AEDPA standard is “highly deferential” and
“difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102,
 KAYER V. RYAN 73

105 (2011) (citations omitted). The petitioner must show that
the state court’s decision was “so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. at 103. In other words, AEDPA
“demands that state-court decisions be given the benefit of
the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).

The majority concludes that the aggravating factors
supporting imposition of Kayer’s death sentence were “not
overwhelming.” Majority Opinion 62. It focuses on the prior
serious offense aggravating factor as being “relatively weak,”
Majority Opinion 57, 63, but overlooks the strength of the
pecuniary gain aggravating factor. For that aggravator, the
defendant must have a financial “motive, cause, or impetus”
for the murder. State v. Kayer, 984 P.2d 31, 41 (Ariz. 1999)
(citation omitted). There is no dispute that Kayer had a
financial motive for killing Haas, doing so for a mere few
hundred dollars’ worth of cash and other items. See State v.
Soto-Fong, 928 P.2d 610, 632 (Ariz. 1996) (“Pecuniary gain
does not focus on whether the defendants were effective or
thorough robbers, but on whether their motive was financial
gain.”).

Moreover, the crime here was brutal, even if it did not rise
to the level of “especially heinous, cruel or depraved.” Kayer
decided to rob and kill Haas, and the next day shot Haas in
the head at point-blank range during a remote bathroom stop
on their drive home from a gambling trip. Kayer took Haas’s
wallet, watch, and jewelry. Kayer left Haas in the bushes and
drove away, but turned around upon realizing he had
forgotten to take Haas’s keys to loot his house. Kayer
74 KAYER V. RYAN

returned to the murder scene, retrieved the keys, and shot
Haas in the head again because he did not appear to be dead.

These facts are remarkably similar to Visciotti, where the
U.S. Supreme Court reversed our grant of habeas relief.
537 U.S. at 20. There, in a preplanned armed robbery, the
defendant and his co-worker shot two co-workers as they all
drove to a party and made a remote bathroom stop (one
victim died and one survived). Id. The defendant was
sentenced to death. Id. At the PCR stage, the California
Supreme Court determined that the defendant had not been
prejudiced by his counsel’s failure to introduce mitigating
evidence about his background. Id. at 21. In particular, the
California Supreme Court concluded that the mitigating
evidence was outweighed by “the circumstances of the crime
(a cold-blooded execution-style killing of one victim and
attempted execution-style killing of another, both during the
course of a preplanned armed robbery) coupled with the
aggravating evidence of prior offenses (the knifing of one
man, and the stabbing of a pregnant woman as she lay in bed
trying to protect her unborn baby).” Id. at 26. We held that
decision was objectively unreasonable and granted habeas
relief. Id. at 21–22.

The U.S. Supreme Court reversed, stating that we had
impermissibly “substituted [our] own judgment for that of the
state court, in contravention of” AEDPA. Id. at 25.
Likewise, here, the majority impermissibly substitutes its own
judgment that Kayer was prejudiced. Granted, the prior
offenses in Visciotti were more serious than Kayer’s prior
burglary conviction. However, the “federal habeas scheme
leaves primary responsibility with the state courts for these
judgments, and authorizes federal-court intervention only
when a state-court decision is objectively unreasonable. It is
 KAYER V. RYAN 75

not that here.” Id. at 27. The majority contends that Visciotti
is different because it took place in California, involved a
PCR decision by the state supreme court, and Arizona had a
distinct capital sentencing scheme at the time. Majority
Opinion 67–68. But those differences do not excuse AEDPA
deference to the Arizona PCR court’s decision here. See
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (reversing
Ninth Circuit in an Arizona capital case, and noting that
“[t]he question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially
higher threshold”).

Further, Kayer’s mitigation—mental illness, and
gambling and alcohol addiction—was hardly overwhelming;
we have denied habeas relief based on far worse mitigating
facts than this one. See, e.g., Apelt v. Ryan, 878 F.3d 800,
815–16 (9th Cir. 2017) (denying habeas relief even though
trial counsel failed to uncover mitigating evidence that the
defendant grew up very poor, had an alcoholic and violent
father who beat his children with an iron rod, was raped twice
as a child, and suffered from mental illness); Cain v.
Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying
habeas relief despite new mitigating evidence that the
defendant was severely beaten and punished by his
stepmother, had an untreated childhood head injury, and had
learning disabilities).

Here, we have an undisputedly strong aggravating factor,
an arguably weak one, and some mitigation, all of which the
Arizona PCR court reviewed. The majority’s reliance on
State v. Brookover, 601 P.2d 1322 (Ariz. 1979), a forty-year-
old case, ignores what the state court did in this case. The
U.S. Supreme Court has warned us again and again not to
76 KAYER V. RYAN

intrude on state court death sentences unless “so lacking in
justification” as to give rise to constitutional error “beyond
any possibility for fairminded disagreement.” Richter,
562 U.S. at 103. I fear that we have done so again, so I
respectfully dissent.