George Kayer v. Charles L. Ryan, 923 F.3d 692

Background

Defendant George Russell Kayer was convicted of first-degree murder (1997) for killing Delbert Haas during a trip; jury found guilt and judge imposed death after finding two statutory aggravators (prior serious offense; pecuniary gain) and one non‑statutory mitigator (importance to his son).
At sentencing, defense presented minimal mitigation: family testimony, a mitigation specialist who had very limited time, and a short statement from the defendant and his son; the trial judge rejected mental‑impairment mitigation as unproven.
On direct appeal the Arizona Supreme Court affirmed the death sentence, finding no reliable evidence of mental impairment and alternatively holding no demonstrated causal nexus between any impairment and the crime.
In state post‑conviction (PCR) proceedings, Kayer produced extensive mitigation evidence (family history, VA psychiatric records, expert evaluations diagnosing bipolar disorder, alcohol dependence, pathological gambling, and cognitive problems) and argued his trial counsel provided ineffective assistance by failing to investigate mitigation early; the PCR court denied relief; Arizona Supreme Court denied review.
On federal habeas review the Ninth Circuit (majority) assumed the Eddings causal‑nexus claim could be reached but found any Eddings error harmless; it granted relief on Kayer’s Strickland claim, holding counsel unconstitutionally deficient for failing to timely investigate mitigation and that the new mitigation evidence created a reasonable probability of a different sentence; remanded with instructions to grant the writ unless the State re‑sentences or vacates death.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Arizona courts violated Eddings by requiring a causal nexus before considering mitigating evidence	Kayer: Arizona’s causal‑nexus rule unconstitutionally barred consideration of mitigation unless tied to the crime	State: No procedural default; even on merits, causal‑nexus was a weighting factor not a threshold	Majority: Arizona applied a categorical causal‑nexus rule (error), but any Eddings error was harmless because trial record lacked evidence of impairment at sentencing
Whether trial counsel provided ineffective assistance at penalty phase under Strickland by failing to investigate mitigation early	Kayer: Counsel failed to begin mitigation investigation upon appointment; extensive mitigation discovered later would have produced reasonable probability of different sentence	State: PCR judge found Kayer voluntarily prevented further mitigation and no prejudice; no reversible Strickland error	Majority: Counsel’s failure to timely investigate was objectively unreasonable and, given the substantial, noncumulative mitigation uncovered, Kayer established prejudice; grant habeas relief for sentencing
Whether Kayer would have cooperated with mitigation investigation if it had begun earlier	Kayer: Expert and mitigation testimony show defendants typically cooperate after rapport is built; Kayer would have cooperated	State: (implicitly) Kayer’s late‑stage refusals show lack of cooperation; funds might not have been available earlier	Held: Court finds it virtually certain Kayer would have cooperated and that counsel could have gathered critical records and interviewing even without early funding
Whether the PCR court’s prejudice finding is entitled to AEDPA deference	State: AEDPA imposes high deference; PCR judge (also sentencing judge) weighed mitigation and found no reasonable probability of different result	Kayer: Arizona Supreme Court on direct review would have independently weighed the new mitigation and could have imposed life	Held: Majority holds PCR court unreasonably applied Strickland/AEDPA given comparable Arizona precedents and the noncumulative nature of new mitigation evidence

Key Cases Cited

Eddings v. Oklahoma, 455 U.S. 104 (1982) (sentencer may not refuse as a matter of law to consider relevant mitigating evidence)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel: performance and prejudice)
Wiggins v. Smith, 539 U.S. 510 (2003) (counsel has duty to investigate defendant’s background for mitigation)
Rompilla v. Beard, 545 U.S. 374 (2005) (counsel’s failure to investigate conviction records pertinent to mitigation can be deficient performance)
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (Arizona’s causal‑nexus rule violated Eddings)
Porter v. McCollum, 558 U.S. 30 (2009) (prejudice inquiry under Strickland in AEDPA context: reasonable probability sentencing outcome would differ)
Williams v. Taylor, 529 U.S. 362 (2000) (counsel must conduct thorough investigation; AEDPA standards for unreasonable application)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless‑error standard in habeas review)
Woodford v. Visciotti, 537 U.S. 19 (2002) (Supreme Court reversed Ninth Circuit’s grant of habeas relief where state court’s prejudice analysis was not objectively unreasonable)
Martinez v. Ryan, 566 U.S. 1 (2012) (procedural default may be excused where ineffective assistance of post‑conviction counsel constitutes cause)