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, Director
of the Arizona Department of ORDER
Corrections,
Respondent-Appellee.

Filed December 18, 2019

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

Order;
Concurrence by Judges W. Fletcher and Friedland;
Dissent by Judge Bea
2 KAYER V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

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

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

Judge Bea, joined by Judges Bybee, Callahan, M. Smith,
Ikuta, Owens, Bennett, R. Nelson, Bade, Collins, Lee, and
Bress, dissented from the denial of rehearing en banc. He
wrote that by any fair reading of the panel majority’s opinion,
it reviewed the post-conviction-review court’s decision de
novo as to whether an Arizona court, applying Arizona
precedent, would have granted relief—a radical approach
unwarranted under the Antiterrorism and Effective Death
Penalty Act. He also wrote that beyond the legal errors,
Kayer’s proposed mitigating evidence is hardly
overwhelming, and reasonable jurists could find that it did not

*
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

undermine confidence in the death sentence, providing no
basis for relief under AEDPA’s deferential standard.

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

ORDER

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

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

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

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

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

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

George Kayer shot and killed his friend Delbert Haas in
Arizona while returning from a gambling trip to Nevada.
Kayer, Lisa Kester (Kayer’s girlfriend), and Haas were in
Haas’s van. Kayer was driving. Kayer had already indicated
to Kester that he would kill Haas. The three of them had
consumed a case of beer during the several-hour drive. Kayer
took a back road and stopped the van. When Haas went to
the back of the van to urinate, Kayer shot him. Kayer and
Kester drove away, but returned when they realized Kayer
had not gotten Haas’s house keys. When they returned, Haas
did not appear to be dead. Kayer shot him again, killing him.
Ten days later, when Kayer and Kester returned to Nevada,
Kester approached a security guard at a Las Vegas hotel and
told him what had happened. Kayer and Kester were both
charged with capital murder. Kester testified against Kayer
in return for a reduced sentence of three years probation. Id.
at 695–96.
 KAYER V. RYAN 5

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

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

In Arizona at the time, capital sentences were imposed by
judges rather than juries. The Supreme Court would not
decide Ring v. Arizona, 536 U.S. 584 (2002), until five years
later. Under Arizona law, a sentencing judge balanced
6 KAYER V. RYAN

aggravating and mitigating circumstances. There were
specified statutory aggravating circumstances, but no non-
statutory aggravating circumstances. There were specified
statutory mitigating circumstances, but any other mitigating
circumstances could be considered as well. Statutory
mitigators were given greater weight than non-statutory
mitigators.

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

During this pre-Ring period, the Arizona Supreme Court
resentenced de novo in capital cases on direct appeal, giving
no deference to a sentencing decision of the trial judge. In its
de novo resentencing of Kayer in 1999, the Arizona Supreme
Court found the same two statutory aggravating factors and
the same single non-statutory mitigating factor. Like the
sentencing judge, it did not find the additional statutory
aggravating circumstance that the murder had been
committed in “an especially heinous, cruel or depraved
manner.” It sentenced Kayer to death. State v. Kayer, 194
Ariz. 423, 984 P.2d 31 (1999).
 KAYER V. RYAN 7

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

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

Kayer himself was slow to walk and fell often. As a
small boy, he had so many bruises on his body that his
mother would not take him out in public. He was dyslexic
and got very poor grades in school. He enlisted in the Navy
after high school but was quickly discharged with a mental
“impairment” described in the discharge papers as “severe.”
Id. at 709. He had two unsuccessful marriages in his early
twenties. He began committing property crimes in his mid-
twenties, and became a heavy drinker and compulsive
gambler. He checked himself into a VA hospital in his late
twenties, saying “I just want to know what’s wrong.” Id. at
710. Six years later, he again checked himself into a VA
hospital, where a doctor wrote that he “showed bipolar traits”
and prescribed lithium (a standard medication for bipolar
8 KAYER V. RYAN

disorder). He was given a “provisional diagnosis” of
“Personality Disorder/Bipolar.” Id. at 710–11. Kayer told a
probation officer a year later that until the second stay in the
VA hospital, “he had no idea what was wrong with him.” Id.
When Kayer was forty, he suffered a severe heart attack and
was admitted to a VA hospital. He checked himself out of
the hospital “against medical advice.” Id. He killed Haas six
weeks later.

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

The Arizona judge who presided over Kayer’s trial and
sentenced him to death also presided over his state PCR
proceeding. In a very brief order, the state PCR judge denied
Kayer’s IAC claim. He held that Kayer’s trial attorneys,
Williamson and Stoller, had provided professionally
competent service, despite the fact that Williamson did no
 KAYER V. RYAN 9

mitigation work whatsoever, and Stoller’s mitigation expert
did not even begin work until six days before the originally
scheduled sentencing hearing. Alternatively, the state PCR
judge held that Kayer had not shown prejudice: “This court
further concludes that if there had been a finding that the
performance prong of the Strickland standard had been met,
that no prejudice to the defendant can be found.” Id. at 714
(emphasis in the judge’s order). The Arizona Supreme Court
denied Kayer’s petition for review without explanation. Id.
at 700. The state PCR judge’s decision was therefore the last
reasoned state court decision.

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

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

I. Our Reasoning

There were three steps in our reasoning:

A. Step One

First, we compared the aggravators and mitigators at the
two different stages in state court:
10 KAYER V. RYAN

1. Sentencing Phase and Direct Appeal

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

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

The one non-statutory mitigator was Kayer’s importance
in the life of his son.
 KAYER V. RYAN 11

2. State PCR Proceeding

Based on the extensive evidence presented during the
state PCR proceeding, we concluded that Kayer had
established the statutory mitigator of mental impairment
under Arizona law: “The defendant’s capacity to appreciate
the wrongfulness of his conduct or to conform his conduct to
the requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.” ARIZ.
REV. STAT. § 13-703(G)(1). In order to reach that
conclusion, we analyzed Arizona Supreme Court cases in
which that statutory mitigator had been found. Kayer, 923
F.3d at 718 (providing as examples State v. Stevens, 158 Ariz.
595, 764 P.2d 724, 727–29 (1988) (long-term alcohol and
drug use); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 16–17
(1983) (long-term drug use)). The state PCR judge made no
finding, one way or the other, whether Kayer had established
the statutory mitigator of mental impairment. If he had made
a finding that Kayer had not established this statutory
mitigator, the finding would have been objectively
unreasonable, given the clear case law of the Arizona
Supreme Court.

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

B. Step Two

Second, we recited the established law for determining
prejudice in a Strickland IAC case under AEDPA. Under that
law, we do not look to what the initial sentencing judge
12 KAYER V. RYAN

would have done if the later-presented evidence had been
presented at the sentencing hearing. Instead, we look to the
probability of a different outcome in the Arizona Supreme
Court, which sentences de novo in capital cases. We filter the
Strickland standard through the lens of AEDPA to give
appropriate deference to the decision of the state PCR judge.
Kayer, 923 F.3d at 719–20.

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

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

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

it was objectively unreasonable [for the state
habeas court] to conclude there was no
reasonable probability the sentence would
have been different if the sentencing judge . . .
had heard the significant mitigation evidence
 KAYER V. RYAN 13

that [defendant’s trial] counsel neither
uncovered nor presented.

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

C. Step Three

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

In State v. Brookover, 124 Ariz. 38, 601 P.2d 1322
(1979), defendant Brookover had agreed to buy 750 pounds
of marijuana from the victim. When the marijuana was
delivered, Brookover shot the victim in order to avoid paying
for it. “The victim fell to the floor moaning and asked the
defendant what he had done. The defendant said ‘Don’t
worry . . . it will be over soon’ and shot him once more in the
back,” killing him. Id. at 1323. There were essentially the
same two statutory aggravators in Brookover’s case as in
Kayer’s case: (1) conviction for a prior “serious offense,”
though this aggravator, at the time of Brookover’s sentencing,
required the crime be one for which the death penalty could
be imposed; and (2) killing for pecuniary gain (recognized a
year later, retroactively, as a statutory aggravator). As in
Kayer’s case, the Brookover court rejected a statutory
aggravator of killing in “an especially heinous, cruel, or
depraved manner.” There was also the same mitigating factor
that in Kayer’s case had been established only after he
obtained competent counsel during the state court PCR
14 KAYER V. RYAN

proceedings: “mental impairment.” Unlike in Kayer’s case,
there was no additional mitigator in Brookover’s case. In its
de novo sentencing determination in Brookover, the Arizona
Supreme Court held that a death sentence could not be
imposed. It held, “Under the circumstances, leniency is
mandated.” Id. at 1326 (emphasis added).

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

Given the striking similarity between the facts of
Brookover and the facts of Kayer’s case, and given that the
Arizona Supreme Court had held in Brookover that a non-
capital sentence was “mandated,” we held that the state court
judge was “objectively unreasonable” in holding that there
was “no reasonable probability” that Kayer’s sentence would
have been different if the evidence presented to the PCR court
had been presented in the original sentencing hearing. We
wrote:
 KAYER V. RYAN 15

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

Kayer, 923 F.3d at 723.

II. Our Colleagues’ Dissent

Our dissenting colleagues make two arguments based on
mistakes of law.

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

[W]ho better to determine whether the new
evidence would have made a difference at
16 KAYER V. RYAN

sentencing than the judge who sentenced
Kayer to death. Judge Kiger presided over
both sentencing and the PCR proceedings, and
he concluded the new evidence would have
made no difference. His “unique knowledge
of the trial court proceedings”—including his
front-row seat to the presentation of evidence
showing Kayer’s brutal and venal
murder—“render[ed] him ‘ideally situated’”
to evaluate Kayer’s claim that the introduction
of new evidence would have changed the
sentencing outcome. Murray v. Schriro, 882
F.3d 778, 821 (9th Cir. 2018) (quoting
Landrigan, 550 U.S. at 476). This is not to
say that Judge Kiger is entitled to some sort of
super-deference simply because he sentenced
Kayer to death. But there is something
particularly troubling about the panel majority
affording no deference whatsoever to Judge
Kiger’s PCR court decision, as the last
reasoned state court opinion.

Dissent at 42–43 (emphasis added). They also write:

All this evidence was before the state PCR
court, which concluded that Kayer had not
been prejudiced by his trial counsel’s failure
to introduce this evidence in mitigation and
before sentencing. He should know, because
in Arizona the same judge who presides over
a defendant’s trial and sentencing also
presides over the PCR proceeding.

Id. at 41 (emphasis added).
 KAYER V. RYAN 17

In making their “he-should-know” argument, our
colleagues ignore clear Supreme Court law to the contrary.
Strickland itself—the foundation case—tells us not to give
deference to the prejudice determination of the state PCR
judge on the ground that he or she was also the sentencing
judge. Under AEDPA, we give deference to the decision of
the last reasoned state court decision. If that is the decision
of the state PCR judge at the trial court level, we of course
give deference to that decision. But the fact that the PCR
judge was also the sentencing judge is irrelevant to the
deference we should give to his or her prejudice
determination. The Court wrote:

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.

Strickland, 466 U.S. at 695.

Our colleagues’ reliance on Murray and Landrigan is
misplaced. In Murray, we held only that it does not violate
due process to have the same person act as both the trial judge
and PCR judge. Murray, 882 F.3d at 820–821. In
Landrigan, the Supreme Court held that the PCR judge, who
had also been the trial judge, was “ideally situated” to
evaluate a factual claim about what had been said during trial
in a colloquy between the judge and the defendant. Schriro v.
Landrigan, 550 U.S. 465, 476 (2007). Neither Murray nor
Landrigan even remotely support the proposition that we owe
18 KAYER V. RYAN

deference to a Strickland prejudice determination by the PCR
judge on the ground that he or she was also the trial judge.

Second, our colleagues argue that in determining
prejudice we should not have looked to precedential decisions
of the Arizona Supreme Court. Calling our approach a
“stunning error,” they write that

the panel majority . . . proposes that the
yardstick for whether there is a reasonable
probability Kayer would not have been
sentenced to death if the new evidence were
presented to the sentencing court is whether
this case is more like cases in which the
Arizona Supreme Court at one point affirmed
a death penalty imposed by the trial court
on direct de novo review or more like cases
in which the Arizona Supreme Court
reversed. . . . [This] mode of habeas review of
a Strickland claim [] is quite literally
unprecedented.

Dissent at 44–45 (emphasis in original).

As a factual matter, our colleagues are mistaken in saying
that this mode of analysis is “quite literally unprecedented.”
In White v. Ryan, 895 F.3d 641 (9th Cir. 2018)—another
Arizona capital case, which we discussed and applied in our
opinion—we spoke directly to this issue. Kayer, 923 F.3d at
720. We wrote in White that an analysis of prejudice at
sentencing must look to what the Arizona Supreme Court
would likely have done if the evidence has been presented to
it on direct appellate review. We faulted the state habeas
court for failing to perform this analysis. We wrote, “The
 KAYER V. RYAN 19

PCR court erred by . . . fail[ing] to consider the probability of
a different outcome in the Arizona Supreme Court.” Id. at
671.

As we pointed out in our en banc opinion in McKinney v.
Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), the Arizona
Supreme Court is conscientious in following its own
precedents. There, we wrote:

[T]he Arizona Supreme Court has a strong
view of stare decisis. The Court wrote in
White v. Bateman, 89 Ariz. 110, 358 P.2d 712,
714 (1961), for example, that its prior caselaw
“should be adhered to unless the reasons of
the prior decisions have ceased to exist or the
prior decision was clearly erroneous or
manifestly wrong.” See also Young v. Beck,
227 Ariz. 1, 251 P.3d 380, 385 (2011)
(“[S]tare decisis commands that ‘precedents
of the court should not be lightly overruled,’
and mere disagreement with those who
preceded us is not enough.” (quoting State v.
Salazar, 173 Ariz. 399, 416, 844 P.2d 566
(1992))); State ex rel. Woods v. Cohen, 173
Ariz. 497, 844 P.2d 1147, 1148 (1993)
(referring to a “healthy respect for stare
decisis”); State v. Williker, 107 Ariz. 611, 491
P.2d 465, 468 (1971) (referring to a “proper
respect for the theory of stare decisis”).

Id. at 826.

As a matter of law, our colleagues are also mistaken. At
all times relevant to our decision, the Arizona Supreme Court
20 KAYER V. RYAN

reviewed de novo on direct appeal all sentencing decisions in
capital cases. The prejudice question is necessarily the
following: Is there a reasonable possibility that there would
have been a different decision by the Arizona Supreme Court
if that court had seen the newly presented evidence on direct
appeal? The only way to answer that question is to compare
the evidence—including the newly presented evidence—to
the evidence in other cases reviewed by the Arizona Supreme
Court on direct appeal.

Our colleagues write further:

The [panel majority’s] rule is as misguided as
it is novel. For starters, [its] approach would
make federal habeas review of every
Strickland claim turn on the state in which the
petitioner was sentenced. So U.S. Supreme
Court habeas precedents that involve
California apparently could be distinguished
away in habeas appeals from Arizona, on the
sole ground that “we ask what an Arizona
rather than a California sentencing court
would have done.” [Kayer, 923 F.3d at 724.]
The panel majority appears untroubled by this
point, but its implications are striking: Their
approach—at least for Strickland
prejudice—transmutes “clearly established
Federal law, as determined by the Supreme
Court of the United States” into law as
determined by state supreme courts. 28
U.S.C. § 2254(d)(1).

Dissent at 45–46.
 KAYER V. RYAN 21

Our colleagues misunderstand the nature of an IAC claim.
IAC claims in § 2254 habeas petitions are often—even
usually—premised on the law of the particular state in which
the petitioner was convicted. If an attorney fails to make
what would have been a winning claim under state law, a
federal habeas court determines prejudice by asking what the
decision under that state law would likely have been if the
claim had been made. We do not look to the law of another
state or to federal law when the state court would never have
applied that law. For example, in an IAC claim where a
petitioner argues that counsel should have raised a claim in
Arizona state court under Arizona law, we do not ask what
California or federal law exists on the point, or what a
California or federal court would have done. The IAC claim
is based on what the Arizona court would have done under
Arizona law had the claim been presented. Our colleagues
are right that our approach would often have us look to state
law in addressing petitions raising IAC claims. But they are
mistaken in contending that the approach is “novel.” On the
contrary, it is the normal and uncontroversial approach.

III. Brookover

Our colleagues do not want to confront the Arizona
Supreme Court’s decision in Brookover. Both arguments just
reviewed are designed to persuade the reader that decisions
of the Arizona Supreme Court in capital cases, and Brookover
in particular, are irrelevant to the Strickland prejudice
question. Our colleagues would prefer to regard as the
controlling case a habeas challenge to a decision by the
California Supreme Court. Dissent at 54–56.
22 KAYER V. RYAN

Our colleagues discuss Brookover only briefly, and only
at the very end of their long dissent. They try to avoid the
effect of Brookover in two ways.

First, our colleagues point out that Brookover’s mental
impairment came from an “organic brain injury.” Id. at 53.
They compare Brookover’s impairment to what they
characterize as Kayer’s “self-administered ‘untreated
alcoholism and untreated pathological gambling.’” Id. In
thus referring to Kayer’s mental state, they ignore his
“severe” “mental impairment” when he was discharged from
the Navy as a very young man; his two stays in VA hospitals,
resulting in a bipolar diagnosis and lithium prescription; his
hearing voices, as described by his aunt; his delusional
beliefs, including the belief that he came from another planet;
and the extensive mental illness in his family. More
important, the Arizona Supreme Court concluded that
Brookover’s “mental impairment” was a statutory mitigator
because his “mental condition was . . . a major and
contributing cause of his conduct . . . .” Brookover, 601 P.2d
at 1326. There is nothing in the Court’s opinion specifying
that the cause of the impairment is relevant. The relevant fact
is the impairment itself.

Second, our colleagues dismiss Brookover as a case
decided “forty years ago.” Dissent at 44–45. When Kayer’s
case was decided on direct appeal by the Arizona Supreme
Court, Brookover was twenty (not forty) years old. We wrote
in our opinion:

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, 245
 KAYER V. RYAN 23

Ariz. 467, 431 P.3d 181, 190 (2018)
(discussing and distinguishing State v.
Graham, 135 Ariz. 209, 660 P.2d 460 (1983);
State v. Trostle, 191 Ariz. 4, 951 P.2d 869,
885 (1997) (discussing and relying on State v.
Richmond, 114 Ariz. 186, 560 P.2d 41, 52–53
(1976))). See also State v. Stuard, 176 Ariz.
589, 863 P.2d 881, 902 (1993) (citing, inter
alia, State v. Doss, 116 Ariz. 156, 568 P.2d
1054, 1060 (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.”

Kayer, 923 F.3d at 725.

IV. Summary

There are two things that differentiate this case from run-
of-the-mill IAC habeas cases under AEDPA.

First, this is not the usual case in which the evidence
presented in the state PCR proceeding was merely cumulative
of evidence already presented at the sentencing phase,
establishing more firmly an already established proposition.
Instead, this is a case in which new evidence established for
the first time the existence of a new and important mitigating
factor. The effect of the new evidence was to change the
24 KAYER V. RYAN

evidence in favor of mitigation, from one weak non-statutory
mitigator (importance in the life of Kayer’s son) to two
mitigators—the continuing non-statutory mitigator, plus the
new statutory mitigator of mental impairment. The two
mitigators must now be weighed against two existing,
relatively weak aggravators.

Second, this is an unusual case in that there is a state
supreme court decision in a capital case with strikingly
similar facts, in which the Court held that a non-capital
sentence was “mandated.” We did not hold, based on
Brookover, that the Arizona Supreme Court would
necessarily have held that a non-capital sentence was
“mandated.” But we did hold, based on Brookover, that it
was “objectively unreasonable” for the state PCR judge to
conclude that there was “no reasonable probability” of a
different sentence. Porter, 558 U.S. at 31.

Contrary to the contention of our dissenting colleagues,
we are acutely aware of the deference required under
AEDPA. Even after giving all appropriate deference to the
decision of the PCR judge, we concluded that habeas relief is
warranted.
 KAYER V. RYAN 25

BEA, Circuit Judge, joined by BYBEE, CALLAHAN,
M. SMITH, IKUTA, OWENS, BENNETT, R. NELSON,
BADE, COLLINS, LEE, and BRESS, Circuit Judges,
dissenting from the denial of rehearing en banc:

Like clockwork, practically on a yearly basis since the
Millennium, we have forced the Supreme Court to correct our
inability to apply the proper legal standards under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).1

1
See, e.g., Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018) (per
curiam) (finding “[t]he Ninth Circuit failed to [] apply” the proper
standard and instead “spent most of its opinion conducting a de novo
analysis”); Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per curiam) (finding
“several problems with the Ninth Circuit’s reasoning,” including that it
failed to recognize that “fairminded jurists could disagree” about how to
construe Supreme Court precedent); Davis v. Ayala, 135 S. Ct. 2187, 2193
(2015) (“The Ninth Circuit’s decision was based on the misapplication of
basic rules regarding harmless error.”); Lopez v. Smith, 574 U.S. 1, 6
(2014) (per curiam) (criticizing “the Ninth Circuit in particular” for
applying a legal standard nowhere found in AEDPA); Johnson v.
Williams, 568 U.S. 289, 297 (2013) (holding that “the Ninth Circuit
declined to apply the deferential standard of review” mandated by
AEDPA); Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam) (citation
omitted) (“When the deference to state court decisions required by
§ 2254(d) is applied to the state court’s already deferential review, there
can be no doubt of the Ninth Circuit’s error below.”); Felkner v. Jackson,
562 U.S. 594, 598 (2011) (per curiam) (explaining that “[t]here was
simply no basis for the Ninth Circuit” to grant habeas relief under
AEDPA’s highly deferential standard, “particularly in such a dismissive
manner”); Premo v. Moore, 562 U.S. 115, 123 (2011) (“The [Ninth
Circuit] was wrong to accord scant deference to counsel’s judgment, and
doubly wrong to conclude it would have been unreasonable to find that the
defense attorney qualified as counsel for Sixth Amendment purposes.”);
Harrington v. Richter, 562 U.S. 86, 92 (2011) (“[J]udicial disregard [for
the sound and established principles of when to issue a writ of habeas
corpus] is inherent in the opinion of the Court of Appeals for the Ninth
Circuit here under review.”); Knowles v. Mirzayance, 556 U.S. 111, 121
26 KAYER V. RYAN

A divided panel in this case took that tradition one step
further, though, by re-writing AEDPA entirely: to institute the
federal habeas court as a mere second state appellate court of
state law error review.

A divided panel in this federal habeas appeal granted
petitioner George Russell Kayer relief. Kayer v. Ryan, 923
F.3d 692, 726 (9th Cir. 2019). Kayer claimed that the
Arizona Superior Court erred in holding, on post-conviction
review (“PCR”), that the failure of Kayer’s trial counsel to
conduct an adequate penalty phase investigation did not
violate his Sixth Amendment right to counsel under
Strickland v. Washington, 466 U.S. 668 (1984).

Kayer was sentenced to death for the first-degree,
premeditated murder of an acquaintance over a minor debt
that Kayer owed the victim. Kayer shot the victim in the
head, stripped the victim’s body of any valuables, returned to
steal the victim’s house keys, shot the victim again for good
measure, ransacked the victim’s home, and pawned off the
loot. Kayer’s attorneys by all accounts did little investigation

(2009) (holding the Ninth Circuit’s erroneous issuance of a writ was
“based, in large measure, on its application of an improper standard of
review”); Uttecht v. Brown, 551 U.S. 1, 22 (2007) (finding “[t]he Court of
Appeals neglected to accord” the proper deference to the state trial court);
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The 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.”); Rice v. Collins, 546
U.S. 333, 342 (2006) (“[The Ninth Circuit’s] attempt to use a set of
debatable inferences to set aside the conclusion reached by the state court
does not satisfy AEDPA’s requirements for granting a writ of habeas
corpus.”); Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam)
(criticizing the Ninth Circuit for “substitut[ing] its own judgment for that
of the state court, in contravention of 28 U.S.C. § 2254(d)”).
 KAYER V. RYAN 27

for the penalty phase, and the panel majority concluded that
an adequate penalty phase investigation would have
uncovered evidence of Kayer’s “mental illness, and gambling
and alcohol addiction.” Kayer, 923 F.3d at 727 (Owens, J.,
concurring in part and dissenting in part). But even assuming
Kayer’s penalty-phase counsel was ineffective, the state PCR
court reasonably determined that Kayer’s counsel’s failure to
investigate did not prejudice Kayer. The state supreme court
denied review.

Reviewing the PCR court’s decision, the panel majority
cast aside (albeit with some lip service) AEDPA’s highly
deferential standard of review. By any fair reading of the
panel majority’s opinion, it reviewed the PCR court’s
decision de novo as to whether an Arizona court, applying
Arizona precedent, would have granted relief—a radical
approach unwarranted under AEDPA. In short, the panel
majority reasoned that because it believed there was a
reasonable probability Kayer’s sentence would have been less
than death if the evidence of mental impairment produced to
the PCR court were presented to the sentencing court, the
PCR court’s contrary finding was objectively unreasonable.
Taking the panel majority at its word, it views as objectively
unreasonable—and thus meritorious of a federal writ of
habeas corpus—that the PCR court reached a different
conclusion about prejudice than did the panel majority. That
is de novo review, plain and simple. As noted, and making
matters worse, the panel majority evaluated whether the state
court’s no-prejudice finding adhered to Arizona’s
inapplicable state law—not federal law.

Beyond the legal errors, Kayer’s proposed mitigating
evidence—relating mostly to his “untreated alcoholism and
untreated pathological gambling,” Kayer, 923 F.3d at 719,
28 KAYER V. RYAN

and absent any findings of organic brain damage—is hardly
overwhelming, and reasonable jurists could find that it did not
undermine confidence in the death sentence. As such, it
provides no basis for relief under AEDPA’s deferential
standard. As Judge Owens convincingly observed, given the
“brutal” manner in which Kayer killed the victim and the
“hardly overwhelming” mitigating evidence, ample room
remains for fairminded disagreement whether the failure of
Kayer’s counsel to investigate prejudiced him. Id.at 726–27
(Owens, J., concurring in part and dissenting in part).

Contrary to the panel majority’s opinion, AEDPA as
interpreted by the Supreme Court nowhere instructs that
entitlement to federal habeas relief turns on a de novo review
of whether an Arizona court in PCR proceedings adhered to
Arizona precedent regarding de novo review of death penalty
sentences. AEDPA instead requires that Kayer show that the
Arizona Superior Court’s PCR determination was “so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103.

From our position, the issue is not what we think the state
PCR court should have done to conform to Arizona law. The
issue is whether what the state PCR court in fact did (its
decision, not how it arrived at its decision) was objectively
unreasonable under the standard articulated in Harrington.
The Supreme Court has told us—specifically us—not to
“ignore[]” that this is literally “the only question that
matters.” Id. at 102 (quoting Lockyer v. Andrade, 538 U.S.
63, 71 (2003)). How the panel majority’s opinion could
outright ignore (and replace) this standard is
incomprehensible. We should have taken this case en banc
 KAYER V. RYAN 29

to correct the panel majority’s opinion’s errors before the
Supreme Court (again) does it for us.

I

George Russell Kayer was convicted of first-degree
murder for the death of Delbert Haas and sentenced to death
in Arizona Superior Court in 1997.

The series of events that led to Kayer’s conviction all
began with a gambling trip gone awry. In 1994, Kayer, his
girlfriend Lisa Kester, and pal Delbert Haas hopped in Haas’s
van to travel from Arizona to Nevada for a gambling trip.
The three spent their first night sharing a room at a hotel in
Laughlin, Nevada. Kayer that night told Haas that he had
“won big” during the day using a special gambling system.
This was apparently a lie, but Kayer knew Haas had recently
received money from an insurance settlement, and Kayer
used the lie to convince Haas to lend him about $100 in
gambling money.

The next day, Kayer of course lost Haas’s money
gambling. But Kayer lied to Haas again, this time fabricating
a story about how he had in fact “won big” but that someone
stole the winnings. In private, Kester asked Kayer what he
planned to do now that he was out of cash. Kayer replied that
he would rob Haas. Kester pointed out the obvious fact that
Haas would identify Kayer as the thief. According to Kester,
Kayer responded, “I guess I’ll just have to kill him.”

The following day, the trio drove back to Arizona,
consuming a case of beer between the three during the
several-hour drive. Haas and Kayer argued about Kayer’s
debt. During a stop to buy snacks and use the bathroom,
30 KAYER V. RYAN

Kayer pulled a gun from beneath a seat in the van and put it
in his pants. Kayer asked Kester if she was “going to be all
right with this.” Kester asked Kayer to warn her before he
pulled the trigger.

The three continued on their way. Kayer, who was
driving, left the main highway, telling his companions he was
taking a shortcut. Kayer stopped the van by the side of the
road, at which point Haas exited and walked toward the back
to urinate. Kester went to exit the van as well, but Kayer
stopped her, gesturing to the gun. Kester received her
warning. Through the back window of the van, Kester saw
Kayer walk up behind Haas and—as Kayer had planned to
do—shoot Haas 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. Back on the road, Kayer realized he forgot
to take Haas’s house keys and drove back to where he
dumped the body. Kayer exited the van to retrieve the keys
from Haas’s body, but then returned and asked for the gun.
Haas, Kayer said, did not appear to be dead. Kayer went back
to Haas’s body, and Kester heard a second shot. Kayer and
Kester then drove to Haas’s Arizona home and looted it.
They spent the next week pawning and selling items from
Haas’s home and gambling with the proceeds.

Ten days after the murder, Kester got cold feet and
approached a security guard at a Las Vegas hotel to report
Kayer’s murder of Haas. Kayer was indicted for, and
eventually convicted of, first-degree murder. During the
penalty phase hearing, Kayer’s counsel argued as mitigating
circumstances that Kayer suffered from mental illness and
substance abuse. But Kayer’s counsel adduced virtually no
 KAYER V. RYAN 31

evidence to support that argument. The judge2 held that
Kayer had not established any mental impairment and
sentenced him to death.

On direct appeal, the Arizona Supreme Court
independently reviewed and affirmed Kayer’s death sentence.
In Arizona, mitigating evidence can serve either as a statutory
or non-statutory mitigating factor, with greater weight due to
statutory factors. The Court refused to find a mitigating
circumstance based on mental impairment, either as a
statutory or non-statutory factor. The Court did find one non-
statutory mitigating circumstance (Kayer’s importance in his
son’s life), but held it was outweighed by two statutory
aggravating circumstances—a previous conviction of a
“serious offense” for first-degree burglary in 1981 and
“pecuniary gain” as motivation for the murder.

On state habeas review, Kayer argued that his trial
counsel provided ineffective assistance of counsel at the
penalty phase. Kayer presented evidence in his PCR
proceeding that his trial counsel performed little investigation
of mitigating circumstances. Had counsel properly
investigated, Kayer argued, trial counsel would have
discovered that: Kayer suffered from bipolar disorder and
“personality disorders”; 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”; Kayer’s father died when he was young, resulting
in “significant instability including frequent moves”; Kayer’s
“performance in school was not good”; Kayer was “having
difficulties with out of control pathological gambling” and
“extensive alcohol abuse” at the time of the murder; and, to

2
This ruling pre-dated Ring v. Arizona, 536 U.S. 584 (2002).
32 KAYER V. RYAN

top it all off, Kayer had suffered a heart attack weeks before
the murder, an “important source of emotional distress that
was likely exacerbating all his other problems.” Kayer, 923
F.3d at 713. The PCR court denied relief, holding that
Kayer’s counsel had not been ineffective, and that, in any
event, any deficiencies did not prejudice Kayer. The Arizona
Supreme Court denied review without comment.

Kayer then sought federal habeas relief. The district court
denied relief. Kayer appealed, contending, as relevant here,
that the Arizona PCR court erred in holding that his Sixth
Amendment right to counsel was not violated by his
counsel’s deficient performance at the penalty phase. A
divided panel reversed, holding that no reasonable jurist
could conclude that Kayer’s counsel had rendered effective
representation by failing to conduct a mitigation investigation
in preparation for the penalty phase, and that counsel’s failure
to investigate prejudiced Kayer.3 Judge Owens dissented as
to whether counsel’s failure prejudiced Kayer. A reasonable
jurist could find the purported mitigation evidence would not
have made a difference, Judge Owens reasoned, given the
“brutal” manner in which Kayer killed Haas and the “hardly
overwhelming” mitigating evidence. Id. at 726–27 (Owens,
J., concurring in part and dissenting in part).

3
Apparently, the following are thus unreasonable jurists: Arizona
Superior Court Judge William T. Kiger, the state PCR court judge; the five
members of the Arizona Supreme Court who denied Kayer’s petition for
review of Judge Kiger’s PCR decision; U.S. District Court Judge David
G. Campbell, who denied federal habeas relief; Judge Owens; and me.
 KAYER V. RYAN 33

II

The Court of Appeals reviews the district court’s denial
of a 28 U.S.C. § 2254 habeas corpus petition de novo. Deck
v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2016).

Because Kayer’s state conviction was entered after April
24, 1996, Kayer’s habeas petition is subject to AEDPA, under
which “[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 bars relitigation of any claim the state court
decided on the merits unless the state court’s determination
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). 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 v.
Taylor, 529 U.S. 362, 413 (2000)).

AEDPA’s standard is “highly deferential” and “difficult
to meet.” Harrington, 562 U.S. at 102, 105 (citations
omitted). To meet it, a 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. According to the Supreme Court, this is literally “the
only question that matters.” Id. at 102 (quoting Lockyer, 538
34 KAYER V. RYAN

U.S. at 71). In other words, AEDPA “demands that state-
court decisions be given the benefit of the doubt.” Visciotti,
537 U.S. at 24.

III

Kayer contends that the state PCR court’s review of his
Sixth Amendment claim involved an unreasonable
application of the Supreme Court’s decision in Strickland.
See 28 U.S.C. § 2254(d)(1). Specifically, Kayer contends
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. See Wiggins v. Smith, 539 U.S. 510, 521–22 (2003).

For the sake of argument, I assume the panel rightly
concluded that Kayer’s attorneys performed deficiently by
failing to conduct an adequate penalty phase investigation.4
But a habeas petitioner must establish both deficient
performance and “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. No
matter how inadequate Kayer’s attorneys may have been,
deficient performance alone is not enough to merit relief.
And “[a] reasonable probability is a probability sufficient to
undermine confidence in the [verdict].” Id. As is critical
here, after a state PCR court finds there was no reasonable
probability the result would have been different but for
counsel’s unprofessional errors, that finding must stand

4
Judge Owens appears to have concurred in this conclusion. See
Kayer, 923 F.3d at 727 (Owens, J., concurring in part and dissenting in
part).
 KAYER V. RYAN 35

unless it was “objectively unreasonable.” Porter v.
McCollum, 558 U.S. 30, 31 (2009) (per curiam).

IV

The discussion that follows proceeds in three steps. First,
I relate the mitigating evidence Kayer presented to the PCR
court. Second, I explain why the panel majority’s review of
the PCR court’s opinion applied a de novo review that flouts
AEDPA’s highly deferential standards. Third, I explain why
the mitigation evidence was not “sufficient to undermine
confidence in the [verdict],” Strickland, 466 U.S. at
694—certainly not “beyond any possibility for fairminded
disagreement,” Harrington, 562 U.S. at 103.

A

Personal Background. According to some, Kayer was
“slow to walk” and “slow at all developmental stages.”
Kayer was dyslexic and struggled in school. His high school
transcript is smattered with Cs, Ds, and Fs, though, also, with
the occasional Bs (in “Speech,” “Typing,” and “Drafting”).
Kayer left high school without graduating and enlisted in the
Navy. There, he had two “unauthorized absences” (“UAs”)
in eight months. He returned from his second UA “to see a
psychiatrist.” At Bethesda Naval Hospital, in May 1973 and
at the age of eighteen, Kayer was diagnosed with a “passive-
aggressive personality.” On discharge, his Lieutenant
Commander noted that he had a “sever[e] . . . personality
disorder.”

In his twenties, Kayer didn’t fare much better. He
bounced around Arizona state colleges but never graduated.
Kayer also “never held a job for a sustained period.”
36 KAYER V. RYAN

Throughout his twenties and thirties, he was a serial burglar
(arrested twice). He married twice in his early twenties, but
both ended in divorce. He then met Cindy Seitzberg, with
whom he fathered a son. His son was dropped in the delivery
room and suffered permanent brain damage. Seitzberg left a
year later, and Kayer’s half-sister and mother became his
infant son’s co-guardians.

Addictive Behavior. Throughout this period, Kayer
“smoke[d] weed almost every day” (beginning at sixteen),5
drank regularly (beginning in his early twenties), and became
a compulsive gambler (“[s]ometime in his twenties”). Kayer,
923 F.3d at 709–10. As to his alcohol abuse, a former
accomplice to his burglaries recounted that together they
would drink beer “for breakfast, lunch and dinner.” When
Kayer voluntarily checked himself into a Veterans
Administration (“VA”) hospital at the age of thirty-five, the
observing doctor reported that Kayer “had been drinking
continuously and heavily for the past seven years.” As to his
gambling, Kayer’s half-sister described his obsession with a
personal gambling “system” and countless trips to Las
Vegas—including, once, while on house arrest after release
for a burglary conviction. That time, Kayer turned himself in
after he lost all his money and was sentenced to an additional
nineteen months for violating parole.

Family History. Kayer came from a family of unsavory
characters. His father was an alcoholic and compulsive
gambler who left the family when Kayer was two and died at
age thirty-nine of a heart attack. On his mother’s side, one of

5
The panel majority opinion contains passing references to Kayer
“us[ing] speed on the weekends” and using LSD “sometimes” in his late
teens. Kayer, 923 F.3d at 709.
 KAYER V. RYAN 37

his aunts was “an alcoholic with severe mood swings,” and
another was an alcoholic who was “severely depressed.” One
of his cousins—diagnosed first as schizophrenic and then as
bipolar—“blew” her “entire retirement” in a single weekend
in Vegas. And that’s not to mention his Uncle John: “a thief,
a robber,” who “held his own family members at gunpoint
and knifepoint a few times.” Uncle John, one of Kayer’s
aunts testified, “hit his head in a creek in Oklahoma and he
just never did do too good after that.”

Despite the cast of characters circling Kayer’s youth,
there is no evidence Kayer was ever the subject of abuse,
either by beatings or sexual molestation. Nor is there any
evidence Kayer suffered organic brain damage from an
accident or some traumatic childhood event.

Mental Health. Kayer’s mother and sister testified before
the PCR court that Kayer experienced “severe mood
swings”—for example, proposing to take a trip “out-of-the
blue” when “it wasn’t a good time,” and “either work[ing] [at
something] all out, or do[ing] nothing.”

In 1983 and at the age of twenty-nine, Kayer voluntarily
went to a VA hospital. The doctor diagnosed him with an
“adjustment disorder with depressed mood.” Six years later,
he was “admitted . . . with depression and suicidal ideation”
after his then-girlfriend left him. Kayer was kept at the
hospital for eighteen days. The observing doctor wrote that
Kayer “showed bipolar traits,” but was not “considered to be
a danger to himself or others” at the time of discharge. A
year later, he was referred to a VA “Day Treatment Center”
with a “provisional diagnosis” of “Personality
Disorder/Bipolar.”
38 KAYER V. RYAN

Some evidence suggests Kayer held delusional beliefs and
heard voices. In an interview with a private investigator for
one of Kayer’s mitigation experts, Kayer stated that he came
to believe at age seven—and continues to believe—that he
came to earth from another planet. He also maintained, in the
same interview, that the uncle of Kayer’s second wife—an
Afghan woman—was “the deposed king of Afghanistan.”
Finally, one of Kayer’s aunts testified in the PCR court that
she has heard voices her entire life, and that Kayer too heard
voices: “I was just telling him about my life and he said ‘I
thought it was normal[.] I hear voices, too.’”

Professional Assessments. Three experts evaluated
Kayer in Arizona prison, after Kayer’s murder conviction.
First, Dr. Anne Herring met with Kayer in March 2005 (over
a decade after the murder), and administered a battery of
tests. Dr. Herring testified before the PCR court that Kayer
received average scores on all tests except for “one of the
more cognitively challenging” ones due to Kayer’s
“persist[ence] in applying incorrect concepts despite
receiving feedback.” Dr. Herring suggested that applying
such “incorrect concepts” is similar to deficits that “have
been associated with chronic heavy substance abuse,
traumatic brain injury, and with bipolar disorder.” 6

Next, Dr. Michael Sucher, a specialist in “alcohol and
drug addiction medicine,” met with Kayer in April 2005. Dr.
Sucher’s notes reflect that Kayer spent “probably one-quarter
to one-third” of his interview discussing his gambling
“system.” Dr. Sucher testified that Kayer had “untreated

6
But again, Dr. Herring did not cite to any record evidence, nor did
anything in the record reflect, that Kayer ever experienced traumatic brain
injury.
 KAYER V. RYAN 39

alcoholism and untreated pathological gambling.” And he
gave this incisive take: Gambling and drinking “often make
individuals who are so impaired do things that they would not
normally do.”

Finally, Dr. Barry Morenz twice interviewed Kayer in
March and April 2005 for a total of five and a half hours and
reviewed Kayer’s medical records. Dr. Morenz wrote in his
subsequent report that Kayer spent much of the interview
talking about his system for predicting winning lottery
numbers. Kayer explained that he believed in reincarnation
and that there is “residue in him from when Mars was
populated and perhaps populations from other worlds as
well.” Dr. Morenz characterized Kayer as “really
delusional,” and ultimately diagnosed Kayer with “Bipolar
type I disorder, hypomaniac; Alcohol dependence in a
controlled environment; Polysubstance abuse in a controlled
environment; Pathological gambling; Cognitive disorder not
otherwise specified.” And Dr. Morenz purported to offer an
account of Kayer’s conditions in 1994 that tied together the
various strands of evidence discussed above:

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
40 KAYER V. RYAN

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 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
 KAYER V. RYAN 41

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.

All this evidence was before the state PCR court, which
concluded that Kayer had not been prejudiced by his trial
counsel’s failure to introduce this evidence in mitigation and
before sentencing. He should know, because in Arizona the
same judge who presides over a defendant’s trial and
sentencing also presides over the PCR proceeding. After first
noting that counsel had performed adequately, the PCR court
noted: “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.” Kayer, 923 F.3d at 714 (quoting PCR court order).

B

As detailed below, there is no ignoring the obvious
conclusion that a reasonable jurist could conclude that Kayer
was not in fact prejudiced by his counsel’s failings in this
case, but broader legal errors permeate the panel majority’s
opinion, which counseled en banc correction.

As discussed above, but it bears repeating, AEDPA’s
standard of review is “highly deferential” and “difficult to
meet.” Harrington, 562 U.S. at 102, 105 (citations omitted).
Here, we must apply that strong deference and 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”
heard the mitigation evidence Kayer’s counsel presented to
42 KAYER V. RYAN

the PCR court. Porter, 558 U.S. at 31. Whether the PCR
court’s no-prejudice conclusion was objectively unreasonable
depends on whether it was “so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.

What standard did the panel majority apply? The panel
majority stated that in its own view (affording no deference
whatsoever), “the evidence [Kayer] presented to the PCR
court was sufficient to establish [an Arizona] statutory
mitigating circumstance” of mental impairment. Kayer, 923
F.3d at 718. Then (again, in its own view), the panel majority
posited that the sentencing court “would have added” the
Arizona statutory mitigating mental impairment to the
balance of aggravating and mitigating factors, and the
addition “could have changed the outcome of the sentencing
proceeding.” Id. at 718–20. Thus, in the majority’s
independent judgment, it pronounced “that there is a
reasonable probability Kayer’s sentence would have been less
than death” if the sentencing judge heard the mitigation
evidence. Id. at 723. And because the panel majority
believed there was such a probability, that alone meant “that
the state PCR court was unreasonable in concluding
otherwise.” Id. Again: “unreasonable in concluding
otherwise.” Id.

The panel majority’s opinion is de novo review, plain and
simple. Nothing in its review of the state PCR court’s
decision included any deference whatsoever, particularly the
high deference mandated by AEDPA. And the dearth of
deference is particularly unnerving here because who better
to determine whether the new evidence would have made a
difference at sentencing than the judge who sentenced Kayer
 KAYER V. RYAN 43

to death. Judge Kiger presided over both sentencing and the
PCR proceedings, and he concluded the new evidence would
have made no difference. His “unique knowledge of the trial
court proceedings”—including his front-row seat to the
presentation of evidence showing Kayer’s brutal and venal
murder—“render[ed] him ‘ideally situated’” to evaluate
Kayer’s claim that the introduction of new evidence would
have changed the sentencing outcome. Murray v. Schriro,
882 F.3d 778, 821 (9th Cir. 2018) (quoting Landrigan, 550
U.S. at 476).7 This is not to say that Judge Kiger is entitled
to some sort of super-deference simply because he sentenced
Kayer to death. But there is something particularly troubling
about the panel majority affording no deference whatsoever
to Judge Kiger’s PCR court decision, as the last reasoned
state court opinion.

In failing to accord the state PCR court decision any
deference whatsoever, the panel majority committed two
errors. First, the majority contended the PCR court is entitled
to no “special” deference—really, no deference at all—
because Strickland demands that PCR courts assess whether
there is a reasonable possibility that “the sentencer—
including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the
balance of the aggravating and mitigating factors did not
warrant death.” Kayer, 923 F.3d at 720 (quoting Strickland,
466 U.S. at 695). Put differently, the panel majority did not
defer to Judge Kiger’s analysis of whether there is a
reasonable possibility that new evidence would have resulted

7
Apparently, the panel majority here is not alone in improperly
second-guessing state court judges in this regard recently. See
Washington v. Ryan, 922 F.3d 419, 433–34 (9th Cir. 2019) (Callahan, J.,
dissenting).
44 KAYER V. RYAN

in a sentence less than death because Judge Kiger in his PCR
role must conduct this analysis in an objective and
independent manner. And Judge Kiger in his PCR role must
objectively consider what an independent reviewing court
might think. But just because Judge Kiger in his PCR role
here was required to “consider the probability of a different
outcome in the Arizona Supreme Court,” White v. Ryan, 895
F.3d 641, 671 (9th Cir. 2018), does not mean Judge Kiger
merits no deference at all in gauging whether the new
evidence would have made a difference.

The panel majority’s second, and more stunning error
concerns its discussion of the probability of a different
outcome in the Arizona Supreme Court. After just saying
that “we assess prejudice independent of the particular judge
or judges” to take away deference to Judge Kiger, the panel
majority then proposes that the yardstick for whether there is
a reasonable probability Kayer would not have been
sentenced to death if the new evidence were presented to the
sentencing court is whether this case is more like cases in
which the Arizona Supreme Court at one point affirmed a
death penalty imposed by the trial court on direct de novo
review or more like cases in which the Arizona Supreme
Court reversed. Kayer, 923 F.3d at 721–23. Purportedly
because Kayer’s case looks more like the reversals—and in
particular, State v. Brookover, 601 P.2d 1322 (Ariz. 1979) (in
banc)—the panel majority concludes that Kayer established
a reasonable probability of a different outcome.

The panel majority does not explain why it is appropriate
for AEDPA review to turn on Arizona Supreme Court
reversal trends on de novo review of direct appeals. Just
because the Arizona Supreme Court in Brookover reversed a
case with some similarities, but also with a glaring
 KAYER V. RYAN 45

dissimilarity (as discussed further below), forty years ago on
de novo review does not mean the PCR court’s conclusion
that in this case the new evidence would not have made a
difference is objectively unreasonable and beyond room for
fairminded disagreement. Harrington, 562 U.S. at 103.

Admittedly, the panel majority’s resort to the “best
evidence” of what the Arizona Supreme Court would have
done—its decisions—has a certain first-blush plausibility.
But by holding that the Arizona courts were objectively
unreasonable in failing to adopt this court’s analysis of
Arizona law, the panel majority employs a mode of habeas
review of a Strickland claim that is quite literally
unprecedented. The panel majority’s defense of its approach
cites not a single authority for the proposition that the
measure for federal habeas review of a state PCR court’s
Strickland-prejudice conclusion may be evaluated by
“look[ing] at de novo sentencing decisions by the [state]
Supreme Court in comparable cases.” Kayer, 923 F.3d at
724.

The rule is as misguided as it is novel. For starters, the
panel majority’s approach would make federal habeas review
of every Strickland claim turn on the state in which the
petitioner was sentenced. So U.S. Supreme Court habeas
precedents that involve California apparently could be
distinguished away in habeas appeals from Arizona, on the
sole ground that “we ask what an Arizona rather than a
California sentencing court would have done.” Id. The panel
majority appears untroubled by this point, but its implications
are striking: Their approach—at least for Strickland
prejudice—transmutes “clearly established Federal law, as
determined by the Supreme Court of the United States” into
46 KAYER V. RYAN

law as determined by state supreme courts. 28 U.S.C. § 2254(d)(1).

The panel majority’s approach is also impossible to
square with Judge W. Fletcher’s earlier en banc majority
opinion in McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015)
(en banc). There, McKinney was sentenced to death and his
sentence was affirmed by the Arizona Supreme Court. Id. at
802. McKinney filed a federal habeas petition, challenging
in relevant part his death sentence, because the state
courts—following Arizona Supreme Court precedent—
forbade consideration of certain mitigating evidence unless it
bore a “causal nexus to his crimes.” Id. at 803. And the en
banc panel granted McKinney’s writ with respect to his
sentence because Arizona’s “causal nexus” requirement was
contrary to clearly established federal law established in
Eddings v. Oklahoma, 455 U.S. 104, 114 (1982), which held
that a sentencer in a capital case may not refuse to consider as
a matter of law relevant mitigating evidence. Id. at 810.

Unlike here, the en banc majority in McKinney not once
queried whether the Arizona courts’ analysis of Arizona law
was based on an objectively reasonable reading of Arizona
precedent. Because unlike here, the en banc majority in
McKinney cited the proper standard of review set forth in
Harrington, which is that federal courts may grant relief
under AEDPA “only if the state court’s application of clearly
established federal law was objectively unreasonable, such
that fairminded jurists could not disagree that the arguments
or theories that supported the state court’s decision were
inconsistent with the holding in a prior decision of the
Supreme Court.” Id. at 811 (internal quotation marks,
citations, and brackets omitted).
 KAYER V. RYAN 47

How then did the panel majority here rationalize tethering
the propriety of the state PCR court’s no-prejudice finding to
a comparison of the facts with “de novo sentencing decisions
by the Arizona Supreme Court in comparable cases”? Kayer,
923 F.3d at 724. In short, it did not. Nor could it, unless the
panel majority meant to create a rule that under AEDPA,
adherence to state precedent is relevant (and mandatory)
when it leads to relief, but not when it leads to denial of
relief. See discussion supra of McKinney. It should go
without saying that AEDPA condones no such a rule. Rather,
federal courts should be concerned only with what the
Supreme Court has repeatedly instructed is “the only question
that matters”: whether “there is no possibility fairminded
jurists could disagree” that the Arizona decision itself
conflicts with federal precedent. Harrington, 562 U.S. at
102.

At a more fundamental level, the panel majority’s
approach is deeply anathema to AEDPA’s basic purpose.
“Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction
through appeal.” Id. at 102–03 (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in
judgment)). It is hard to see here how the panel majority’s
analysis differs at all from de novo review—indeed, a de
novo sentencing direct appeal analysis the Arizona Supreme
Court itself has already done in denying relief to Kayer.

It cannot be stressed enough just what the panel did
wrong. Rather than ask whether fairminded jurists could
disagree about whether the new mitigation evidence was
sufficient to undermine confidence in the outcome, the panel
majority began its inquiry by asking from scratch: “[W]as the
48 KAYER V. RYAN

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?” Kayer,
923 F.3d at 716. Looking to Arizona Supreme Court de novo
sentencing appeals, the panel majority then concluded that
those cases indeed “show[] 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.” Id. at 721. The
panel majority therefore held “there is a reasonable
probability Kayer’s sentence would have been less than
death, and”—almost as an afterthought—“that the state PCR
court was unreasonable in concluding otherwise.” Id. at 723.
(Here, of course, neglecting to mention that the standard is
whether the state PCR court was “objectively” unreasonable:
that its decision was one “beyond any possibility for
fairminded disagreement,” the “only question that matters.”
Harrington, 562 U.S. at 102–03.)

The Supreme Court has repeatedly condemned this de-
novo-masquerading-as-deference approach. In Harrington,
for example, the Court chastised the Ninth Circuit for
“treat[ing] the unreasonableness question as a test of its
confidence in the result it would reach under de novo
review.” 562 U.S. at 102. But that is precisely what the
panel majority did here. And if there were any remote doubt
about the impropriety of panel majority’s analysis, one need
only ask themselves if the following sounds familiar:

Here it is not apparent how the Court of
Appeals’ analysis would have been any
different without AEDPA. The court
explicitly conducted a de novo review; and
 KAYER V. RYAN 49

after finding a Strickland violation, it
declared, without further explanation, that the
state court’s decision to the contrary
constituted an unreasonable application of
Strickland. AEDPA demands more. Under
§ 2254(d), a habeas court must determine
what arguments or theories supported or, as
here, could have supported, the state court’s
decision; and then it must ask whether it is
possible fairminded jurists could disagree that
those arguments or theories are inconsistent
with the holding in a prior decision of this
Court. The opinion of the Court of Appeals
all but ignored the only question that matters
under § 2254(d)(1).

Id. at 101–02 (internal quotation marks and citations
omitted).

The panel majority’s approach evinces no deference: In
both the panel majority’s actual analysis and an Arizona
Supreme Court de novo sentencing direct review, the inquiry
begins and ends with “de novo sentencing decisions by the
Arizona Supreme Court in comparable cases.” Kayer, 923
F.3d at 724. It should go without saying that AEDPA does
not authorize Article III judges to role-play as super state
Supreme Court justices.8

8
As should be understood, the proper approach instead requires
federal courts to “presum[e] that state courts know and follow the law.”
Visciotti, 537 U.S. at 24. Federal courts must determine what arguments
supported or could have supported the state court’s decision, and ask
“whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision”
of the U.S. Supreme Court. Harrington, 562 U.S. at 102.
50 KAYER V. RYAN

C

As just discussed, the panel majority mangled the law in
reviewing de novo a state court decision and making out of
whole cloth a method of review that requires idiosyncratically
comparing a given case’s facts to past state supreme court
cases engaged in their own de novo review. If these errors
were not reason enough to take the case en banc, the panel
majority’s conclusions are clearly unwarranted under the
proper AEDPA framework.

Assuming that all of the mitigating evidence Kayer
presented in the PCR proceeding (and summarized above)
would have been introduced to the trial court, is it possible
that fairminded jurists could find that evidence insufficient to
establish a reasonable probability of a different outcome? See
Harrington, 562 U.S. at 102. Based on the above description
of the evidence alone, one would think the answer obvious.
As Judge Owens notes, Kayer’s crime was “brutal” and the
mitigation evidence “hardly overwhelming.” Kayer, 923 F.3d
at 726–27 (Owens, J., concurring in part and dissenting in
part). What is more, Kayer deliberated about committing the
brutal, venal crime before (twice) pulling the trigger.

Kayer killed Haas for a few hundred dollars’ worth of
cash and other items. He did so in a premeditated fashion,
telling his girlfriend that, unable to repay his minor gambling
debt to Haas, “I guess I’ll just have to kill him.” Kayer then
deliberately took Haas to a remote location, shot Haas in the
head at point-blank range, and stripped Haas’s body of
valuables. But even that wasn’t enough, apparently. Once on
the road, Kayer turned around to retrieve Haas’s house keys
from the body, to loot Haas’s home. After shooting Haas
again for good measure, Kayer took Haas’s keys and in an act
 KAYER V. RYAN 51

of increased venality, ransacked Haas’s home—before
spending the next week gambling and pawning off the loot.
And while Kayer’s girlfriend later thought better of what
happened and turned herself in, Kayer never looked back.

In the face of that brutal crime, “assuring the court that
genetics made him the way he is could not have been very
helpful.” Landrigan, 550 U.S. at 481. And that is indeed
what Kayer’s mitigation evidence amounts to—“mental
illness, and gambling and alcohol addiction.” Kayer, 923
F.3d at 727 (Owens, J., concurring in part and dissenting in
part). There is no evidence of childhood “severe privation
and abuse,” or “physical torment,” or sexual molestation—no
broken bones, concussions, hospitalization, or any kind of
serious or lasting injury from childhood abuse. Cf. Wiggins,
539 U.S. at 512; Williams, 529 U.S. at 370. Despite Dr.
Herring writing in her report that Kayer’s deficits were akin
to those associated with traumatic brain injury, nothing in the
record indicates that Kayer ever actually experienced any
traumatic brain injury.

Although Kayer started smoking weed at sixteen and
drinking in his twenties, his family did not appear to have
introduced him to alcohol or drugs. And he was not
hospitalized for drinking when he was very young. Cf.
Williams, 529 U.S. at 395 n.19. Notwithstanding descriptions
of Kayer as “slow,” there is no evidence Kayer suffered
organic brain damage, or has an IQ in the modern-day
equivalent of what was previously termed the “mentally
retarded range.” Cf. Rompilla v. Beard, 545 U.S. 374, 393
(2005); Wiggins, 539 U.S. at 535. Indeed, Dr. Herring
testified that Kayer’s results were “average” on all but one in
an extensive battery of psychiatric tests. On direct appeal,
Kayer even cited his “relatively high intelligence” as a
52 KAYER V. RYAN

mitigating factor. Arizona v. Kayer, 984 P.2d 31, 48 (Ariz.
1999) (en banc) (emphasis added).

Taking at face value Kayer’s evidence, “[w]hether, and to
what degree, [it] is mitigating is highly debatable.”
Pinholster v. Ayers, 590 F.3d 651, 715 (9th Cir. 2009)
(Kozinski, J., dissenting), rev’d sub nom. Cullen v.
Pinholster, 563 U.S. 170 (2011). For instance, one ordinarily
might think that evidence the defendant drinks and gambles
to excess would cast his character in a particularly
unfavorable light. Yet because “Kayer had been drinking
heavily on the day of the killing, and Kayer killed the victim
in order to obtain funds to continue gambling,” the panel
majority suggested, his alcoholism and pathological gambling
are especially mitigating. Kayer, 923 F.3d at 721. The panel
majority of course ignored that Kayer first planned to kill
Haas before the day of the killing and thus had time to change
his mind. This was a planned and brutal murder. Only a
jurist caught up in the throes of an “infatuation with
‘humanizing’ the defendant” could take seriously the panel
majority’s conclusions to the contrary. Pinholster, 590 F.3d
at 692 (Kozinski, J., dissenting).

Making matters worse, although the panel majority’s
unprecedented new standard of review that requires
comparing cases to state supreme court reversals is
unwarranted as a matter of law, the panel majority’s analysis
further errs by “overlook[ing] arguments that would
otherwise justify the state court’s result.” Harrington, 562
U.S. at 102. The panel majority relies heavily on Brookover
as its Arizona Supreme Court de-novo-reversal analogue.
There, defendant Brookover agreed to buy 750 pounds of
marijuana from the victim. Upon delivery, Brookover shot
 KAYER V. RYAN 53

the victim to avoid paying for it, and shot him once more in
the back when the victim fell to the floor.

There, as in Kayer’s case, the Arizona Supreme Court did
not find a statutory aggravating factor that the murder had
been committed in “an especially heinous, cruel, or depraved
manner.” Like Kayer, Brookover had been previously
convicted of a serious crime, and he committed the crime for
pecuniary gain. “The one mitigating circumstance was
mental impairment.” See Kayer, 923 F.3d at 722. The
Arizona Supreme Court set aside the death sentence imposed
by the trial court.

“The only difference,” says the panel majority, between
Brookover and Kayer’s case is “that one of the statutory
aggravators was stronger in Brookover”: Although the
Brookover opinion does not describe the prior conviction, the
statutory aggravator at the time required a crime “for which
the death penalty or life imprisonment could be imposed.” Id.
at 723–24. (Arizona later changed the statutory aggravator to
a prior conviction for a “serious crime”). Neither death nor
life imprisonment could be imposed for first-degree burglary,
Kayer’s prior conviction. Thus, the panel majority reasoned,
the reversal of Brookover’s sentence on worse facts compels
reversal of Kayer’s sentence on better facts.

But the panel majority’s mechanistic weighing of the
“statutory” and “non-statutory” mitigators elided obvious
distinctions between the cases. Just to take one: Brookover’s
mental impairment involved an organic brain injury: a “pre
existing” “neurological lesion” associated with serious “anti
social” behavior. Brookover, 601 P.2d at 1325. Kayer’s
claimed mitigating evidence was merely self-administered
“untreated alcoholism and untreated pathological gambling.”
54 KAYER V. RYAN

This is no trivial distinction. In countless cases finding
Strickland prejudice on federal habeas review for failing to
investigate at the penalty phase, the Supreme Court has found
particularly sympathetic claims of “organic brain damage”
and mental retardation, see Rompilla, 545 U.S at 392; “brain
damage” and “brain abnormality,” see Porter, 558 U.S. at 36;
and “frontal lobe brain damage,” with “bottom first
percentile” cognitive functioning, see Sears v. Upton, 561
U.S. 945, 946 (2010). Kayer, by contrast, has adduced no
evidence of such injury or functioning. A fairminded jurist
could reasonably distinguish Brookover on that ground alone.

Consider as well that (at least in the panel majority’s
view) Kayer’s mental impairment was so significant because
he was at least provisionally diagnosed bipolar, which
purportedly may have manifested “manic or hypomanic”
symptoms at the time of the murder. Kayer, 923 F.3d at 713.
But relying on Kayer’s bipolar disorder is not so simple. As
the panel majority noted, Kayer at one point was prescribed
lithium, the standard drug to treat the disorder. Id. at 719.
Evidence in the record, however, reflects that Kayer
intentionally refused to take the medication. See id. at 697.
Why couldn’t a fairminded jurist review that evidence and
reason that to the extent Kayer’s bipolar disorder in some
sense influenced Kayer’s decision to murder his friend, Kayer
should still be held responsible for his conduct because he
refused to medicate?

Finally, as Judge Owens’s dissent carefully explains,
Visciotti, 537 U.S. at 24, puts any lingering doubt to rest.
Kayer, 923 F.3d at 726–27 (Owens, J., concurring in part and
dissenting in part). “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
 KAYER V. RYAN 55

victim died and one survived).” Id. The defendant was
sentenced to death and, “[a]t the PCR stage, the California
Supreme Court determined that the defendant had not been
prejudiced by his counsel’s failure to introduce mitigating
evidence” of Visciotti’s brain damage and impulse disorder.
Id. at 727.

The California Supreme Court held 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).” Visciotti, 537 U.S. at 26.
The Ninth Circuit granted habeas relief. But the Supreme
Court summarily reversed, faulting the Ninth Circuit for
impermissibly “substitut[ing] its own judgment for that of the
state court.” Id. at 25. The Supreme Court had to remind the
Ninth Circuit that “[a]n unreasonable application of federal
law is different from an incorrect application of federal law.”
Id. (internal quotation marks omitted).

The panel majority freely admitted that the facts in
Visciotti “are similar” to Kayer’s, though it halfheartedly
distinguished Visciotti as a California (not Arizona) case.
Kayer, 923 F.3d at 724. This admission alone should have
decided this case. It strains credulity to suggest that Kayer’s
case marks an “extreme malfunction[] in the state criminal
justice system[],” Harrington, 562 U.S. at 102, when the facts
of his case admittedly resemble so starkly the facts of a case
in which the Ninth Circuit was reversed (summarily) by the
Supreme Court.
56 KAYER V. RYAN

Again, that this case is similar to Visciotti should be
enough by itself to demonstrate that fairminded jurists could
disagree whether the mitigation evidence would have
outweighed the aggravating evidence.

Perhaps the most telling indication of the panel majority’s
error in review by case-comparison is that the panel majority
rests its holding on an Arizona Supreme Court de novo
review reversal bearing “striking” parallels to this case.
Kayer, 923 F.3d at 722. To reach the opposite result, Judge
Owens too cites a precedent with “remarkably similar” facts.
Id. at 726 (Owens, J., concurring in part and dissenting in
part). The difference? The panel majority’s is a decades-old
Arizona Supreme Court de novo review of a sentencing
decision involving a defendant with organic brain damage, a
critical fact. Judge Owens’s is a Supreme Court summary
reversal of a Ninth Circuit habeas grant for one of errors the
majority now repeats. I’ll side with Judge Owens.

V

No one disputes Kayer has lived an unfortunate life. But
sympathy alone is not a basis to cast aside AEDPA in favor
of a novel de-novo-masquerading-as-deference approach
never sanctioned by the Supreme Court. And if that were not
bad enough, the panel majority’s de novo review fails as well.
AEDPA—as the Supreme Court has told us—does not permit
such conclusions. It is likely time for the Supreme Court to
remind us of AEDPA’s requirements. For these reasons, I
respectfully dissent from our court’s unwillingness to rehear
this case en banc.