Kayer v. Ryan, No. 09-99027 (9th Cir. 2019)
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Petitioner appealed the district court's denial of his motion for a writ of habeas corpus relief under 28 U.S.C. 2254(d). The Ninth Circuit, assuming without deciding that there was no procedural default and failure to exhaust, held that, although the Arizona Supreme Court erred in rejecting petitioner's proffered mental impairment mitigation evidence, the error was harmless because the state court made a reasonable determination of the facts in concluding that petitioner suffered from no mental impairment and thus did not violate Eddings v. Oklahoma, 455 U.S. 104 (1982).
However, the panel reversed in part and held that the Arizona Superior Court erred in holding that petitioner's Sixth Amendment right to counsel was not violated by his counsel's deficient performance at the penalty phase under Strickland v. Washington. Accordingly, the panel remanded with directions to grant the writ with respect to petitioner's sentence.
Court Description: Habeas Corpus / Death Penalty. The panel reversed in part and affirmed in part the district court’s judgment denying Arizona state prisoner George Russell Kayer’s habeas corpus petition, and remanded with directions to grant the writ with respect to Kayer’s death sentence. The panel held that the Arizona Supreme Court erred in rejecting Kayer’s proffered mental-impairment mitigation evidence on the ground that the alleged impairment did not have a causal nexus to the commission of the crime. The panel held that this erroneous ruling, which was an alternative holding, was harmless because the Arizona Supreme Court’s principal holding – that Kayer presented so little evidence of mental impairment that he failed to establish even the existence of any such impairment – was a reasonable determination of the facts. The panel reversed the district court’s denial of relief on Kayer’s claim that he was denied his Sixth Amendment right to effective assistance of counsel due to his attorneys’ inadequate mitigation investigation in preparation for his penalty phase hearing. The panel held that in failing to begin penalty-phase investigation promptly after they were appointed, Kayer’s attorneys’ representation fell below an objective standard of reasonableness; and that the conclusion of the state post-conviction-relief (PCR) court that Kayer’s KAYER V. RYAN 3 attorneys provided constitutionally adequate performance was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. The panel concluded that but for counsel’s deficient performance, there is a reasonable probability Kayer’s sentence would have been less than death, and that the state PCR court was unreasonable in concluding otherwise. The panel did not need to reach the question whether the sentencing court acted properly in denying a continuance, and agreed with the district court that none of the procedurally- defaulted claims Kayer sought to revive was substantial in the sense necessary to support a finding of cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012). The panel declined to certify two additional claims. Concurring in part and dissenting in part, Judge Owens disagreed that the death sentence must be reversed because he could not say that the Arizona PCR court acted unreasonably regarding prejudice in light of the aggravating and mitigating circumstances in this case.
The court issued a subsequent related opinion or order on December 18, 2019.
The court issued a subsequent related opinion or order on March 25, 2021.
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