Shinn v. Kayer

OCTOBER TERM, 2020 111

Syllabus

SHINN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. 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 After being found guilty of first-degree murder by an Arizona jury, re- spondent George Kayer sought “to expedite the sentencing process” and refused to fully cooperate with a mitigation specialist. Arizona law at that time authorized a judge to impose a sentence of death upon the showing of at least one qualifying aggravating circumstance and no miti- gating circumstance sufficient to call for leniency. See Ariz. Rev. Stat. Ann. § 13–703. At sentencing, the judge found that the State had proved two aggravating factors beyond a reasonable doubt and that Kayer had demonstrated only one nonstatutory mitigating factor: Weighing those factors, the trial judge sentenced Kayer to death, and the Arizona Supreme Court affirmed. Kayer subsequently filed a petition for postconviction relief in Arizona

Superior Court in which he argued that he had received ineffective as- sistance of counsel because his attorneys failed to investigate mitigating circumstances. Following a 9-day evidentiary hearing, the state court applied Strickland v. Washington, 466 U. S. 668, and denied relief. The court concluded that trial counsel's performance was not deficient given Kayer's refusal to cooperate and, in the alternative, that Kayer would have suffered no prejudice even if his counsel's performance had been deficient. The Arizona Supreme Court denied Kayer's petition for fur- ther review. Kayer then filed a habeas petition in Federal District Court. The District Court rejected Kayer's ineffective-assistance claim, but a divided Ninth Circuit panel reversed, holding that Kayer's attorneys should have begun to pursue mitigation evidence promptly after their appointment and that trial counsel's alleged failings likely affected Kayer's sentence. Held: The court below erred in ordering issuance of a writ of habeas cor- pus despite ample room for reasonable disagreement about the prison- er's ineffective-assistance-of-counsel claim. Pp. 117–124. (a) Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), state courts play the leading role in assessing challenges to state sentences based on federal law. A federal habeas court may not disturb a state-court adjudication applying the correct legal stand- ard unless it is so obviously wrong that its error lies “beyond any possi-

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bility for fairminded disagreement.” Harrington v. Richter, 562 U. S. 86, 103. Because the state court here appropriately assessed Kayer's ineffective assistance claim under Strickland v. Washington, 466 U. S. 668, the Court examines only whether the state court's decision involved an “unreasonable application of ” this Court's precedent, 28 U. S. C. § 2254(d). And because Strickland provides a general standard, the state court has great latitude “to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U. S. 111, 123. Pp. 117–119. (b) The Ninth Circuit's decision conflicts with AEDPA and the Court's precedents. The state court's judgment must stand if a fair- minded jurist could agree with either of its alternative holdings on defi- cient performance and prejudice. The state court's finding that Kayer failed to show prejudice is sufficient for present purposes. The most probable reason for the state court's no-prejudice determination is sim- ply that the new mitigation evidence offered in the postconviction pro- ceeding did not create a substantial likelihood of a different sentencing outcome. Reasonable jurists could debate that conclusion, but it is not obviously wrong or beyond the possibility for fairminded disagreement. Kayer relies on State v. Brookover, 124 Ariz. 38—a decision vacating a death sentence in a different capital case—but capital sentencing neces-

sarily involves an individualized determination, and prior decisions on that topic are unlikely to provide clear guidance about how courts would weigh evidence in other cases. Here, the Brookover decision falls far short of placing the state court's prejudice determination beyond the realm of fairminded disagreement. Pp. 119–124. Certiorari granted; 923 F. 3d 692, vacated and remanded.

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 “adjudi- cated 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 adjudi- cating 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

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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 pe- tition 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 gam- ble 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 special- ist. When Kayer's counsel stated that the specialist needed

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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 cooper- ate 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 cer- tain 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) (subse- quently requiring juries “to find an aggravating circum- stance 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 mitiga- tor: his importance in his son's life. Weighing the aggravat- ing and mitigating factors, Judge Kiger sentenced Kayer to death, and the Arizona Supreme Court affirmed his convic- tion and sentence. B Kayer subsequently filed a petition for postconviction re- lief in Arizona Superior Court. Among his many claims, Kayer argued that he received ineffective assistance of coun- sel because his attorneys failed to investigate mitigating cir-

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cumstances 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 gam- bling; evidence that he had suffered a heart attack about six weeks before the murder; evidence of mental illness, includ- ing a diagnosis of bipolar disorder; and evidence that mem- bers 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) (de- scribing 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] con- sidered the assertion of mental illness, physical illness, jail conditions, childhood development, and any alcohol or gam- bling addictions.” Ibid. The Arizona Supreme Court de- nied 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)

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(citing Schriro v. Landrigan, 550 U. S. 465 (2007)). More- over, 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, Kay- er's attorneys should have begun to pursue mitigation evi- dence promptly after their appointment. And on the ques- tion 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 Kay- er's case with other Arizona cases,” the panel drew two con- clusions: 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 [postcon- viction] court was unreasonable in concluding otherwise.” Id., at 723. Judge Owens dissented in relevant part, explaining that the Arizona postconviction court had not unreasonably ap- plied 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 ma- jority's holding, he concluded, resulted from “impermissibly substitut[ing] its own judgment that Kayer was prejudiced” for that of the state court. Ibid.

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Arizona then sought, and the Ninth Circuit denied, rehear- ing 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 as- serted that “the panel majority cast aside . . . AEDPA's highly deferential standard of review.” Id., at 1158. In- stead, 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 rea- sonable jurist could conclude that Kayer was not in fact prej- udiced 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 rea- sonable 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 peti- tion for certiorari in this Court.

II A Kayer asserts that his death sentence was imposed in vio- lation of his Sixth Amendment right to effective assistance of counsel. As the state court recognized, this Court's deci- sion in Strickland v. Washington, 466 U. S. 668 (1984), pro- vides the proper framework for assessing that claim. Under Strickland, Kayer must show that his counsel provided “de- ficient” 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

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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 mitigat- ing 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 proba- bility 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 pre- sented 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 adjudica- tion of the claim,” as relevant here, “resulted in a decision that was contrary to, or involved an unreasonable applica- tion 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. 91, 94 (2017) (per curiam) (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 fair- minded disagreement.” Richter, 562 U. S., at 103. Con- gress “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

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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. Beau- dreaux, 585 U. S. –––, ––– (2018) (per curiam) (quoting Re- nico 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 funda- mentally 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 assert- ing that the state court's decision was unreasonable.” Beau-

dreaux, 585 U. S., at –––; see Richter, 562 U. S., at 101–102. In other words, it appears “to have treated the unreason- ableness question as a test of its confidence in the result it would reach under de novo review.” Id., at 102. More spe- cifically, the panel concluded de novo that “there is a reason- able 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 con- cluding otherwise.” 923 F. 3d, at 723. Indeed, the panel repeatedly reached conclusions—such as that the “evidence presented to the [postconviction] court established the statu- tory mitigating circumstance of mental impairment,” id., at 719, and that there was a “causal connection between Kay- er'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 defi-

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cient performance, that he failed to show prejudice.1 Fed- eral 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. Lam- bert, 565 U. S. 520, 525 (2012) (per curiam). Thus, if a fair- minded jurist could agree with either Judge Kiger's defi- ciency 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 preju- dice question without articulating its reasoning supporting that conclusion, we “must determine what arguments or the- ories . . . could have supported the state court's” determina- tion 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 Pin- holster, 563 U. S., at 188.

1 Section 2254 calls for review of the “last state-court adjudication on the merits.” Greene v. Fisher, 565 U. S. 34, 40 (2011). The Ninth Circuit treated the Superior Court's decision, rather than the Arizona Supreme Court's denial of review, as the last state-court adjudication on the merits. Unreasoned dispositions by appellate courts sometimes qualify as adjudi- cations on the merits. In those cases, we apply a rebuttable presumption that the appellate court's decision rested on the same grounds as the rea- soned decision of a lower court. See Wilson v. Sellers, 584 U. S. ––– (2018). We may assume without deciding that the Arizona Supreme Court's denial of discretionary review was not a merits adjudication be- cause we conclude that the Superior Court did not unreasonably apply federal law. In these circumstances, there would be no need to consider whether an unreasoned decision of a higher court may have rested on different grounds than the decision of a lower court.

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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 out- come. The Ninth Circuit generally considered that possibil- ity, but in so doing impermissibly “substituted its own judg- ment 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 Ari- zona 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 im- paired.” 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 fair- minded 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). Ari- zona 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– 2 In its efforts to distinguish Woodford v. Visciotti, 537 U. S. 19, the panel found it “critically important” that Visciotti involved postconviction review by a State Supreme Court. The panel emphasized that here, by contrast, it did not “know how the Arizona Supreme Court would have assessed [the new] evidence on collateral review because the Court denied without explanation Kayer's petition for review.” Kayer v. Ryan, 923 F. 3d 692, 724 (2019). But the lower court and the parties have not identi- fied anything in AEDPA or this Court's precedents permitting reduced deference to merits decisions of lower state courts. See 28 U. S. C. § 2254.

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1508(A) (1978). And Judge Kiger determined that Kayer “was armed with a .41 caliber handgun” during his prior of- fense. Excerpts of Record in No. 09–99027 (CA9), p. 935. A fairminded jurist could see Kayer's past conviction as hav- ing substantial weight in the context of this murder by shooting. Fairminded jurists also could take a different view of Kay- er'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 sig- nificantly 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 re- mote area, and subsequently returning to the murder scene

and shooting the victim in the head a second time. More- over, 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 evi- dence 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 rehear- ing en banc). Kayer counters that his claim is unusually strong because the Arizona Supreme Court would have “independently re- weigh[ed] the evidence” on direct appeal. Strickland, 466 U. S., at 695. In his view, the similarity between his post- conviction 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

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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 in- volved reweighing evidence on direct appeal, capital sentenc- ing 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 sen- tencing 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 indi- vidualized sentencing determination, the opinion refers to evidence that appears significantly different from that in this case. The Brookover opinion refers to evidence of a “ `neu- rological 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

3 The Ninth Circuit brushed past this distinction, reasoning that the Ari- zona Supreme Court could have found a pecuniary gain aggravating factor based on the facts of Brookover. But that does not change the fact that the Brookover court did not weigh any second aggravating factor in reach- ing its decision. See 124 Ariz., at 41–42, 601 P. 2d, at 1325–1326.

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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 quo- tation marks omitted). * * * Under AEDPA, state courts play the leading role in as- sessing 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 au- thority in rejecting that determination, which was not so obviously wrong as to be “beyond any possibility for fair- minded 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.