George Kayer v. David Shinn ( 2021 )

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NOT FOR PUBLICATION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
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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
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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.
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