SUPREME COURT OF THE UNITED STATES
DAVID SHINN, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS
v. GEORGE RUSSELL KAYER
on petition for writ of certiorari to the
united states court of appeals for the ninth circuit
No. 19–1302. Decided December 14, 2020
Per Curiam.
The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) restricts the power of federal courts to grant
writs of habeas corpus based on claims that were “adjudicated on
the merits” by a state court. 28 U. S. C. §2254(d). When
a state court has applied clearly established federal law to
reasonably determined facts in the process of adjudicating a claim
on the merits
, a federal habeas court may not disturb the
state court’s decision unless its error lies “beyond any
possibility for fairminded disagreement.”
Harrington v.
Richter,
562 U.S.
86, 103 (2011). In this case, the Court of Appeals erred in
ordering issuance of a writ of habeas corpus despite ample room for
reasonable disagreement about the prisoner’s
ineffective-assistance-of-counsel claim. In so doing, the Court of
Appeals clearly violated this Court’s AEDPA jurisprudence. We
therefore grant the petition for certiorari and vacate the judgment
below.
I
A
Respondent George Kayer murdered Delbert Haas
in 1994. Haas, Kayer, and Lisa Kester were on a trip to gamble in
Laughlin, Nevada. While there, Kayer borrowed money from Haas and
lost it gambling. Kayer then devised a plan to rob Haas, but Kester
questioned whether he could get away with robbing someone he knew.
Kayer responded, “ ‘I guess I’ll just have to kill
him.’ ”
State v.
Kayer, 194 Ariz. 423, 428, 984
P.2d 31, 36 (1999). While the three drove home, Kayer took a detour
to a secluded area and stopped on the side of a dirt road. After
Haas exited the vehicle to urinate, Kayer grabbed a gun, sneaked up
to him, and shot him pointblank in the head. After dragging Haas’
body into some bushes, Kayer stole his wallet, watch, and jewelry,
and drove away. Kayer soon realized that he had forgotten to take
Haas’ house keys, and he therefore returned to the scene of the
crime. Fearing that Haas might not be dead, Kayer shot him in the
head again while retrieving his keys. Subsequently, Kayer stole a
variety of firearms and other things of value from Haas’ home after
instructing Kester to use a police scanner to look out for police
activity. The two sold many of the stolen items under aliases, but
Kayer was arrested after Kester went to the police. After a jury
trial before Judge William T. Kiger, Kayer was found guilty of
premeditated first-degree murder and related offenses.
After being found guilty, Kayer “made clear his
desire to expedite the sentencing process.”
Id., at 429, 984
P. 2d, at 37. He refused to fully cooperate with a mitigation
specialist. When Kayer’s counsel stated that the specialist needed
more time to evaluate Kayer’s case, Kayer refused to agree to a
continuance, and the trial court ruled him competent to make that
choice. At sentencing, the judge again asked Kayer whether he would
like more time for investigation, but Kayer “refused the offer and
stated he would not cooperate with [the specialist] no matter how
long sentencing was delayed.”
Id., at 429–430, 984
P. 2d, at 37–38.
The court proceeded to sentencing. At that time,
Arizona law required a judge, not a jury, to determine whether
certain aggravating circumstances had been established, and a judge
was authorized to impose a sentence of death only if at least one
such aggravating circumstance was shown and there was no mitigating
circumstance that was sufficient to call for leniency. See Ariz.
Rev. Stat. Ann. §13–703 (Supp. 1998); cf.
Ring v.
Arizona,
536 U.S.
584, 609 (2002) (subsequently requiring juries “to find an
aggravating circumstance necessary for imposition of the death
penalty”). In Kayer’s case, the judge found that the State had
proved two aggravating factors beyond a reasonable doubt. First,
the court concluded that Kayer had been “previously convicted of a
serious offense,” §13–703(F)(2), based on his conviction for
first-degree burglary in 1981, see §13–703(H)(9);
Kayer, 194
Ariz., at 433, 984 P. 2d, at 41. Second, it determined that
Kayer murdered Haas for “pecuniary gain,” see §13–703(F)(5). On the
other side of the balance, the court found that Kayer had
demonstrated only one nonstatutory mitigator: his importance in his
son’s life. Weighing the aggravating and mitigating factors, Judge
Kiger sentenced Kayer to death, and the Arizona Supreme Court
affirmed his conviction and sentence.
B
Kayer subsequently filed a petition for
postconviction relief in Arizona Superior Court. Among his many
claims, Kayer argued that he received ineffective assistance of
counsel because his attorneys failed to investigate mitigating
circumstances at the outset of the criminal proceedings. The
sentencing judge held a 9-day evidentiary hearing.
Kayer’s evidence at the hearing broke down into
four main categories: evidence that he was addicted to alcohol and
gambling; evidence that he had suffered a heart attack about six
weeks before the murder; evidence of mental illness, including a
diagnosis of bipolar disorder; and evidence that members of his
family had suffered from similar addictions and illnesses in the
past and that this had affected his childhood. See
Kayer v.
Ryan, 923 F.3d 692, 708–713 (CA9 2019) (describing evidence
in detail).
The court denied relief after applying the
familiar two-part test from
Strickland v.
Washington,
466 U.S.
668 (1984). The court found that trial counsel’s performance
was not deficient because Kayer had refused to cooperate with his
mitigation team’s efforts to gather more mitigation evidence. And,
in the alternative, the court held that “
if there had been a
finding that the performance prong of the
Strickland
standard had been met, . . . no prejudice to the
defendant can be found.” App. to Pet. for Cert. 189. The court
added that “[i]n stating this conclusion[, it] ha[d] considered the
assertion of mental illness, physical illness, jail conditions,
childhood development, and any alcohol or gambling addictions.”
Ibid. The Arizona Supreme Court denied Kayer’s petition to
review the denial of postconviction relief.
State v.
Kayer, No. CR–07–0163–PC (Nov. 7, 2007).
C
Kayer then filed an unsuccessful habeas
petition in Federal District Court. See 28 U. S. C.
§2254. Relevant here, the District Court rejected Kayer’s
ineffective-assistance claim for failure to show prejudice. As an
initial matter, the court concluded that Kayer could not “show
prejudice because he waived an extension of the sentencing date and
thereby waived presentation of the full-scale mitigation case.”
Kayer v.
Ryan, 2009 WL 3352188, *21 (D Ariz., Oct.
19, 2009) (citing
Schriro v.
Landrigan,
550 U.S.
465 (2007)). Moreover, the court reasoned that Kayer’s
mitigation evidence “fell short of the type of mitigation
information that would have influenced the sentencing decision.”
2009 WL 3352188, *21.
A divided Ninth Circuit panel reversed. On the
question of trial counsel’s performance, the panel rejected the
state court’s judgment because, in the judgment of the panel,
Kayer’s attorneys should have begun to pursue mitigation evidence
promptly after their appointment. And on the question of prejudice,
the court conducted its own review of the evidence and found that
trial counsel’s alleged failings likely affected Kayer’s sentence.
Based on a “comparison of Kayer’s case with other Arizona cases,”
the panel drew two conclusions: first, that “the evidence he
presented to the [state postconviction] court was sufficient to
establish a statutory mitigating circumstance” of mental
impairment, 923 F. 3d, at 718, and second, that there was a
reasonable probability that the Arizona Supreme Court would have
vacated Kayer’s death sentence on direct review had it been
presented with the mitigating evidence offered at the state
postconviction relief hearing. For these reasons, the panel
majority found that “there is a reasonable probability Kayer’s
sentence would have been less than death, and that the state
[postconviction] court was unreasonable in concluding otherwise.”
Id., at 723.
Judge Owens dissented in relevant part,
explaining that the Arizona postconviction court had not
unreasonably applied federal law in light of the aggravating and
mitigating circumstances in this case. In his view, Kayer’s
mitigating evidence was “hardly overwhelming,” and he argued that
the majority had given short shrift to the “undisputedly strong
aggravating factor” of pecuniary gain.
Id., at 727. The
majority’s holding, he concluded, resulted from “impermissibly
substitut[ing] its own judgment that Kayer was prejudiced” for that
of the state court.
Ibid.
Arizona then sought, and the Ninth Circuit
denied, rehearing en banc. Judge Bea authored a dissent from the
denial of en banc review, which was joined by 11 other judges. See
Kayer v.
Ryan, 944 F.3d 1147, 1156 (2019). Judge Bea
asserted that “the panel majority cast aside . . .
AEDPA’s highly deferential standard of review.”
Id., at
1158. Instead, he wrote, the panel majority had applied a
“de-novo-masquerading-as-deference approach” that the “Supreme
Court has repeatedly condemned.”
Id., at 1168; see also
id., at 1157, n. 1 (citing 14 cases since 2002 in which
this Court has reversed the Ninth Circuit’s application of AEDPA).
Under AEDPA and this Court’s precedent, he contended, “there [was]
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.”
Id., at 1164. The mitigating impact
of Kayer’s new evidence was, at best, “highly debatable.”
Id., at 1169 (internal quotation marks omitted). Applying
the proper standard of review, Judge Bea explained that “it [was]
possible that fairminded jurists could find [Kayer’s] evidence
insufficient to establish a reasonable probability of a
different outcome.”
Id., at 1168 (citing
Richter, 562
U. S., at 102).
After the denial of rehearing en banc, Arizona
filed a petition for certiorari in this Court.
II
A
Kayer asserts that his death sentence was
imposed in violation of his Sixth Amendment right to effective
assistance of counsel. As the state court recognized, this Court’s
decision in
Strickland v.
Washington,
466 U.S.
668 (1984), provides the proper framework for assessing that
claim. Under
Strickland, Kayer must show that his counsel
provided “deficient” performance that “prejudiced the defense.”
Id., at 687. In the capital sentencing context, the
prejudice inquiry asks “whether there is a reasonable probability
that, absent the errors, the sentencer—including an appellate
court, to the extent it independently reweighs the evidence—would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.”
Id., at 695. The
Strickland standard is “highly demanding.”
Kimmelman
v.
Morrison,
477 U.S.
365, 382 (1986). A reasonable probability means a
“ ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.”
Cullen v.
Pinholster,
563 U.S.
170, 189 (2011) (quoting
Richter, 562 U. S., at
112).
When an ineffective-assistance-of-counsel claim
is presented in a federal habeas petition, a state prisoner faces
additional burdens. Among other things, no relief may be granted
“with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim,” as
relevant here, “resulted in a decision that 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).
Here, the state court applied “the correct
governing legal principle . . . to the facts of the
prisoner’s case,”
Lockyer v.
Andrade,
538 U.S.
63, 75 (2003) (internal quotation marks omitted), so the
question is whether its decision involved an “unreasonable
application of ” this Court’s precedent. To meet that
standard, a prisoner must show far more than that the state court’s
decision was “merely wrong” or “even clear error.”
Virginia
v.
LeBlanc, 582 U. S. ___, ___ (2017) (
per
curiam) (slip op., at 3) (internal quotation marks omitted).
The prisoner must show that the state court’s decision is so
obviously wrong that its error lies “beyond any possibility for
fairminded disagreement.”
Richter, 562 U. S., at 103.
Congress “meant” this standard to be “difficult to meet.”
Id., at 102.
We have recognized the special importance of the
AEDPA framework in cases involving
Strickland claims.
Ineffective -assistance claims can function “as a way to escape
rules of waiver and forfeiture,”
Richter, 562 U. S., at
105, and they can drag federal courts into resolving questions of
state law. Moreover, we have recognized that “the more general the
rule, the more leeway state courts have.”
Sexton v.
Beaudreaux, 585 U. S. ___, ___ (2018) (
per
curiam) (slip op., at 8) (quoting
Renico v.
Lett,
559 U.S.
766, 776 (2010); quotation modified). “[B]ecause the
Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not
satisfied that standard.”
Knowles v.
Mirzayance,
556 U.S.
111, 123 (2009).
B
The Ninth Circuit resolved this case in a
manner fundamentally inconsistent with AEDPA. Most striking, the
panel “essentially evaluated the merits
de novo, only
tacking on a perfunctory statement at the end of its analysis
asserting that the state court’s decision was unreasonable.”
Beaudreaux, 585 U. S., at ___ (slip op., at 7); see
Richter, 562 U. S., at 101–102. In other words, it
appears “to have treated the unreasonableness question as a test of
its confidence in the result it would reach under
de novo
review.”
Id., at 102. More specifically, the panel concluded
de novo that “there is a reasonable probability Kayer’s
sentence would have been less than death,” and then simply appended
the statement that “the state [postconviction review] court was
unreasonable in concluding otherwise.” 923 F. 3d, at 723.
Indeed, the panel repeatedly reached conclusions—such as that the
“evidence presented to the [postconviction] court established the
statutory mitigating circumstance of mental impairment,”
id., at 719, and that there was a “causal connection between
Kayer’s mental impairment and the crime,”
ibid.—without ever
framing the relevant question as whether a fairminded jurist could
reach a different conclusion.
Applying the proper standard of review, we
vacate the Court of Appeals’ judgment. Judge Kiger found that Kayer
had failed to show deficient performance and, assuming deficient
performance, that he failed to show prejudice.[
1] Federal courts may not disturb the judgments of
state courts unless “
each ground supporting the state court
decision is examined and found to be unreasonable.”
Wetzel
v.
Lambert,
565 U.S.
520, 525 (2012) (
per curiam). Thus, if a fairminded
jurist could agree with either Judge Kiger’s deficiency or
prejudice holding, the reasonableness of the other is “beside the
point.”
Id., at 524; see
Parker v.
Matthews,
567 U.S.
37, 42 (2012) (
per curiam) (“[I]t is irrelevant
[whether] the court also invoked a ground of questionable
validity”);
Richter, 562 U. S., at 102.
We focus on the state court’s prejudice
determination. Insofar as the state court offered its conclusion on
the prejudice question without articulating its reasoning
supporting that conclusion, we “must determine what arguments or
theories . . . could have supported the state court’s”
determination that Kayer failed to show prejudice.
Id., at
102. Then we must assess whether “ ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision” if
based on one of those arguments or theories.
Id., at 101
(quoting
Yarborough v.
Alvarado,
541 U.S.
652, 664 (2004)); see
Pinholster, 563 U. S., at
188.
Perhaps the most probable reason for Judge
Kiger’s no-prejudice determination is simply that the new
mitigation evidence offered in the postconviction proceeding did
not create a substantial likelihood of a different sentencing
outcome. The Ninth Circuit generally considered that possibility,
but in so doing impermissibly “substituted its own judgment for
that of the state court” instead of applying deferential review.
Woodford v.
Visciotti,
537 U.S.
19, 25 (2002) (
per curiam).[
2] It characterized Kayer’s prior-offense aggravator
(first-degree burglary) as “relatively weak” in comparison with
other offenses that qualified under the Arizona capital sentencing
law. 923 F. 3d, at 718. And on the other side of the balance,
it attributed considerable weight to evidence that it viewed as
showing that Kayer’s “capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law
was significantly impaired.” Ariz. Rev. Stat. Ann.
§13–703(G)(1).
Perhaps some jurists would share those views,
but that is not the relevant standard. The question is whether a
fairminded jurist could take a different view. See
Visciotti, 537 U. S., at 24–27; see also
Pinholster, 563 U. S., at 200–202. And the answer is
yes. For one thing, a fairminded jurist might differently evaluate
the effect of Kayer’s prior-offense aggravator (let alone the
pecuniary gain aggravator). Arizona first-degree burglary required
as an element that he or an accomplice was “armed with explosives,
a deadly weapon or a dangerous instrument.” Ariz. Rev. Stat. Ann.
§13–1508(A) (1978). And Judge Kiger determined that Kayer “was
armed with a .41 caliber handgun” during his prior offense.
Excerpts of Record in No. 09–99027 (CA9), p. 935. A fairminded
jurist could see Kayer’s past conviction as having substantial
weight in the context of this murder by shooting.
Fairminded jurists also could take a different
view of Kayer’s mitigating evidence. Kayer offered evidence that he
suffered from bipolar disorder and untreated drinking and gambling
addictions at the time of the crime, but reasonable jurists could
debate the extent to which these factors significantly impaired his
ability to appreciate the wrongfulness of his conduct or to conform
his conduct to the law at the time of the murder. For example, the
record reveals that Kayer had extensive opportunities to consider
his actions—planning the murder in advance, driving his victim to a
remote area, and subsequently returning to the murder scene and
shooting the victim in the head a second time. Moreover, Kayer’s
planning of the murder, efforts to hide the body, interactions with
Kester before and after the murder, and attempts to profit from his
crimes using an alias display a measure of control and
intentionality. On this record, a fairminded jurist reasonably
could conclude that Kayer’s evidence of mental impairment, in the
words of Judge Owens, was “hardly overwhelming.” 923 F. 3d, at
727; see also 944 F. 3d, at 1168–1171 (Bea, J., dissenting
from denial of rehearing en banc).
Kayer counters that his claim is unusually
strong because the Arizona Supreme Court would have “independently
reweigh[ed] the evidence” on direct appeal.
Strickland, 466
U. S., at 695. In his view, the similarity between his
postconviction case and judgments that the State Supreme Court has
issued in other cases on direct review supports his
Strickland claim. Arizona responds that the State Supreme
Court would not have reweighed the evidence in the manner
contemplated by
Strickland. And it asks this Court to hold
that past state judgments on direct review are categorically
irrelevant to AEDPA review.
We need not address these broad questions in
order to resolve this case. Even if Arizona’s sentencing practices
involved reweighing evidence on direct appeal, capital sentencing
requires “an
individualized determination on the basis of
the character of the individual and the circumstances of the
crime.”
Zant v.
Stephens,
462
U.S. 862, 879 (1983). For present purposes, it suffices to say
that, because the facts in each capital sentencing case are unique,
the weighing of aggravating and mitigating evidence in a prior
published decision is unlikely to provide clear guidance about how
a state court would weigh the evidence in a later case.
Kayer, like the panel below, focuses his
argument on the Arizona Supreme Court’s decision in
State v.
Brookover, 124 Ariz. 38,
601 P.2d 1322 (1979), but that decision falls far short of
placing the state court’s prejudice determination in this case
beyond the realm of fairminded disagreement. In
Brookover,
there was only one aggravating circumstance (a prior conviction for
a serious offense), whereas Kayer’s sentencing involved two
statutory aggravators.[
3] And
as for the mitigating evidence in
Brookover, while it is far
from clear exactly what mitigating evidence influenced the court’s
individualized sentencing determination, the opinion refers to
evidence that appears significantly different from that in this
case. The
Brookover opinion refers to evidence of a
“ ‘neurological lesion’ ” of a type that caused “ ‘a
relinquishment of one’s self autonomy.’ ”
Id., at 41,
601 P. 2d, at 1325. By contrast, a reasonable jurist could
view Kayer’s mitigation evidence in a different light for the
reasons explained above. In these circumstances, the
Brookover decision does not come close to showing the sort
of “extreme malfunctio[n] in the state criminal justice syste[m]”
that would permit federal court intervention.
Richter, 562
U. S., at 102 (internal quotation marks omitted).
* * *
Under AEDPA, state courts play the leading
role in assessing challenges to state sentences based on federal
law. A state court heard Kayer’s evidence and concluded that he
failed to show prejudice. The court below exceeded its authority in
rejecting that determination, which was not so obviously wrong as
to be “beyond any possibility for fairminded disagreement.”
Id., at 103. Under §2254(d), that is “ ‘the only
question that matters.’ ”
Id., at 102.
We grant the petition for a writ of certiorari,
vacate the judgment of the United States Court of Appeals for the
Ninth Circuit, and remand the case to that court for further
proceedings consistent with this opinion.
It is so ordered.
Justice Breyer, Justice Sotomayor, and Justice
Kagan dissent.