Kayer v. Ryan

• Citation: 923 F.3d 692
• Decision Date: 13 May 2019
• Docket Number: No. 09-99027,09-99027
• Parties: George Russell KAYER, Petitioner-Appellant, v. Charles L. RYAN, Warden, Director of the Arizona Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

923 F.3d 692

George Russell KAYER, Petitioner-Appellant,
v.
Charles L. RYAN, Warden, Director of the Arizona Department of Corrections, Respondent-Appellee.

No. 09-99027

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2018 Pasadena, California
Filed May 13, 2019

W. FLETCHER, Circuit Judge:

George Russell Kayer was convicted of first degree murder and sentenced to death in Arizona Superior Court in 1997. During a brief penalty-phase hearing, Kayer’s counsel argued as a mitigating circumstance that Kayer suffered from mental illness and was a substance abuser, but provided very little evidence to support the argument. The judge held that Kayer had not established any mental impairment due to mental illness or substance abuse. He sentenced Kayer to death.

On direct appeal, the Arizona Supreme Court performed an independent review of Kayer's death sentence, as required under Arizona law. The Court found two statutory aggravating circumstances—a previous conviction of a "serious offense" in 1981, and "pecuniary gain" as a motivation for the murder. State v. Kayer , 194 Ariz. 423, 984 P.2d 31, 41–42 (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

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at all. In the view of the Court, the existence of such impairment was merely speculative. Second, in the alternative, the Court held that even if there had been non-speculative evidence of the existence of such impairment, Kayer had failed to establish a "causal nexus" between the alleged impairment and the murder.

In a post-conviction relief ("PCR") proceeding in Arizona Superior Court, Kayer argued that his trial counsel had provided ineffective assistance at the penalty phase. Kayer presented evidence in the PCR court that his trial counsel had performed little investigation of mitigating circumstances. He also presented extensive evidence of mental impairment due to mental illness and substance abuse which, he contended, competent counsel would have discovered and presented to the sentencing court. The PCR court denied relief, holding that Kayer's counsel had not been ineffective, and that, in any event, any deficiencies in his counsel's performance did not prejudice Kayer. The Arizona Supreme Court declined review without comment.

Kayer then sought federal habeas corpus. The district court denied relief. On appeal to us, Kayer makes two claims with which we are centrally concerned. First, Kayer claims that the Arizona Supreme Court on direct appeal violated his Eighth Amendment right to be free of cruel and unusual punishment by applying its unconstitutional "causal nexus" test to his proffered mitigating evidence of mental illness and substance abuse. See Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ; McKinney v. Ryan , 813 F.3d 798 (9th Cir. 2015) (en banc). Second, Kayer claims that the Arizona Superior Court on post-conviction review erred in holding that his Sixth Amendment right to counsel was not violated by his counsel's deficient performance at the penalty phase. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 , 194 Ariz. 423, 984 P.2d 31, 35 (1999). Kester was arrested and interrogated. The following account of the events leading up to and culminating in Haas's murder is largely based on Kester's narrative at trial, as summarized by the Arizona Supreme Court on direct appeal.

On November 30, 1994, Kayer, Kester, and Haas traveled in Haas's van from Arizona to Nevada on a gambling trip. The three of them spent their first night sharing a room at a hotel in Laughlin, Nevada. Kayer told Haas that night that he had "won big" during the day using a special gambling system. Kayer knew that Haas had recently received money from an insurance settlement. He convinced Haas to lend him about $ 100.

The next day, Kayer lost all the money Haas had lent him. Kayer lied to Haas, telling him that he had again "won big," id . at 36, but that someone had stolen his money. Kester asked Kayer what he planned to do now that he was out of cash. Kester testified that Kayer replied that he would rob Haas. Kester pointed out that

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Haas would easily identify Kayer as the thief. According to Kester, Kayer responded, "I guess I'll just have to kill him." Id.

On December 2, Kayer, Kester, and Haas drove back to Arizona. Kester recounted in a pretrial interview that the three of them consumed a case of beer during the several-hour drive. Haas argued with Kayer about how Kayer would repay him. During a stop to buy snacks and use the bathroom, Kayer pulled a gun from beneath a seat in the van and put it in his pants. He asked Kester if she was "going to be all right with this." Id . Kester responded that she wanted Kayer to warn her before he pulled the trigger.

Kayer, who was driving, left the main highway, purporting to take a shortcut. He stopped the van by the side of a back road. Haas got out of the van and walked toward the back to urinate. Kester started to get out of the van, but Kayer stopped her, motioning to her with the gun. Through the back window of the van, Kester saw Kayer walk up behind Haas and shoot him in the head while he was urinating.

Kayer dragged Haas's body into the bushes; took Haas's wallet, watch and jewelry; got back in the van; and drove away with Kester. Kayer realized that he had forgotten to get Haas's house keys and drove back to where they had left his body. Kayer got out of the van to retrieve the keys, but returned and asked for the gun, saying that Haas did not appear to be dead. Kayer went back to Haas's body, and Kester heard a second shot.

Kayer and Kester drove to Haas's home in Arizona and stole several items to pawn and sell at flea markets. They spent the next week pawning and selling the stolen property and gambling with the proceeds. Ten days after the murder, Kester approached a security guard in Las Vegas and reported that Kayer had killed Haas. She was taken into custody. Kayer was taken into custody soon afterwards.

Kayer and Kester were indicted for first degree murder on December 29, 1994. The State initially announced that it would seek the death penalty against both of them. In September 1995, Kester entered into a plea agreement under which the State agreed not to seek the death penalty and, further, to limit dramatically her potential sentence. Under the agreement, Kester would receive, at worst, a six-and-a-half-year prison sentence. At best, she would be sentenced to probation. In exchange, Kester agreed to testify truthfully at Kayer's trial, consistent with her previous statement to the police. Kester testified as promised. After Kayer was convicted, Kester was sentenced to three years probation.

B. Procedural History

1. Trial, Conviction, and Sentencing

The jury convicted Kayer of first degree murder on March 26, 1997. Kayer's "aggravation/mitigation hearing" took place on July 8, 1997. His attorneys put on five witnesses. Their testimony was finished before noon.

First, Jerry Stoller, a "detention officer" who worked in the law library of the county jail, testified that Kayer was always "very busy" when at the library, always taking "the full three hours." When asked if Kayer's "conduct has always been good," Stoller responded, "In my presence, yes."

Second, Cherie Rottau, Kayer's seventy-six-year-old mother, testified that Kayer had been generally well behaved during high school. She testified that Kayer's father had died when he was in kindergarten and that she had not remarried until after Kayer had graduated from high school. She recounted that when Kayer was a teenager, he had shot two jackrabbits at

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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...