George Kayer v. David Shinn

Opinion

FILED NOT FOR PUBLICATION MAR 25 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE RUSSELL KAYER, No. 09-99027

Petitioner-Appellant, D.C. No. 2:07-cv-02120-DGC

v. MEMORANDUM* DAVID SHINN, Director, Director of the Arizona Department of Corrections,

Respondent-Appellee.

On Remand from the United States Supreme Court

Before: W. FLETCHER, OWENS, and FRIEDLAND, Circuit Judges.

We previously granted Kayer habeas relief based on his claim of ineffective

assistance of counsel during the penalty phase of his proceedings. See Kayer v.

Ryan, 923 F.3d 692 (9th Cir. 2019). The Supreme Court granted certiorari and

vacated our decision. See Shinn v. Kayer, 141 S. Ct. 517 (2020) (per curiam).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Now on remand, we address the sole issue we declined to reach in our prior

opinion. We affirm the district court’s denial of Kayer’s writ of habeas corpus.

In our prior opinion, we declined to reach Kayer’s challenge to the

sentencing judge’s denial of a 90- or 180-day continuance of his mitigation hearing

for additional mitigation investigation, as had been requested by Kayer’s counsel.

See Kayer, 923 F.3d at 725. Although the judge was initially prepared to grant a

thirty-day continuance, he denied it following an extended colloquy during which

Kayer repeatedly expressed his opposition to a continuance. Kayer did not feel

that “mitigation [was] going to be a major factor in the [sentencing] decision.” In

response to the denial, Kayer’s counsel attempted, but was not permitted, to

withdraw on the basis that he was unable to “effectively put on [a] mitigation

case,” without the completed investigation. Both the judge and Kayer’s counsel

stated on the record that they believed Kayer understood the importance of the

mitigation evidence and the consequences of opposing the continuance. With

Kayer’s consent, the judge delayed the mitigation hearing by two weeks in order to

provide additional time for investigation without rescheduling the sentencing

hearing. During that mitigation hearing, the mitigation specialist testified about the

various avenues she intended to investigate if given additional time. The judge

again provided Kayer an opportunity to request a continuance for further

2 mitigation investigation. Kayer remained opposed to a continuance, and none was

granted.

On direct appeal, the Arizona Supreme Court concluded that Kayer was

competent when he opposed the continuance, and that the sentencing judge did not

err in deferring to Kayer’s waiver of additional mitigation investigation. Before

us, Kayer argues that the Arizona Supreme Court’s rejection of this claim was

based on an unreasonable determination of the facts or, alternatively, that the Court

unreasonably applied federal law as clearly established by the United States

Supreme Court in concluding that the sentencing judge’s decision did not deprive

Kayer of effective assistance of counsel. See 28 U.S.C. § 2254(d)(1)–(2). We

disagree.

First, the Arizona Supreme Court’s conclusion that Kayer was competent

when he opposed the continuance was not an unreasonable determination of the

facts within the meaning of § 2254(d)(2) because the record offers support for such

a conclusion. Both the judge and Kayer’s counsel believed Kayer understood the

consequences of not permitting additional mitigation investigation. Kayer had

multiple opportunities to support his counsel’s request for a continuance, including

shortly after the mitigation specialist’s testimony that she needed more time to

conduct an investigation, yet he declined to do so. Under AEDPA’s deferential

3 review, we cannot say the Arizona Supreme Court’s conclusion was objectively

unreasonable. See Pizzuto v. Yordy, 947 F.3d 510, 523 (9th Cir. 2019) (per

curiam).

Second, the Arizona Supreme Court’s rejection of this claim was not

contrary to, nor an unreasonable application of, federal law clearly established in a

decision of the United States Supreme Court, as is required under § 2254(d)(1).

Although Kayer directs us to Supreme Court opinions discussing the typical

division of labor between attorneys and their clients, he has not identified any

clearly established federal law prohibiting a sentencing judge, in the circumstances

of this case, from acceding to a defendant’s express wish to decline a continuance.

The district court’s denial of the writ of habeas corpus is therefore affirmed.

AFFIRMED.