Kayer v. Ryan

• Decision Date: 18 December 2019
• Docket Number: No. 09-99027,09-99027
• Citation: 944 F.3d 1147 (Mem)
• Parties: George Russell KAYER, Petitioner-Appellant, v. Charles L. RYAN, Director of the Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

944 F.3d 1147 (Mem)

George Russell KAYER, Petitioner-Appellant,

v.Charles L. RYAN, Director of the Arizona Department of Corrections, Respondent-Appellee.

No. 09-99027

United States Court of Appeals, Ninth Circuit.

Filed December 18, 2019

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.

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.

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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), until five years later. Under Arizona law, a sentencing judge balanced 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).

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 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 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...