Full opinion text
W. FLETCHER, Circuit Judge: George Russell Kayer was convicted of first degree murder and sentenced to death in Arizona Superior Court in 1997. During a brief penalty-phase hearing, Kayer's counsel argued as a mitigating circumstance that Kayer suffered from mental illness and was a substance abuser, but provided very little evidence to support the argument. The judge held that Kayer had not established any mental impairment due to mental illness or substance abuse. He sentenced Kayer to death. On direct appeal, the Arizona Supreme Court performed an independent review of Kayer's death sentence, as required under Arizona law. The Court found two statutory aggravating circumstances-a previous conviction of a "serious offense" in 1981, and "pecuniary gain" as a motivation for the murder. State v. Kayer , 194 Ariz. 423, 984 P.2d 31, 41-42 (1999). The Court found one non-statutory mitigating circumstance-Kayer's importance in the life of his son. Id. at 42. After weighing the two aggravating circumstances against the one mitigating circumstance, the Arizona Supreme Court affirmed Kayer's death sentence. As he had in the trial court, Kayer argued in the Arizona Supreme Court for a mitigating circumstance based on mental impairment due to mental illness and/or substance abuse. The Court refused to find a mitigating circumstance based on mental impairment, as either a statutory or non-statutory mitigator. First, the Court refused to find that such impairment existed at all. In the view of the Court, the existence of such impairment was merely speculative. Second, in the alternative, the Court held that even if there had been non-speculative evidence of the existence of such impairment, Kayer had failed to establish a "causal nexus" between the alleged impairment and the murder. In a post-conviction relief ("PCR") proceeding in Arizona Superior Court, Kayer argued that his trial counsel had provided ineffective assistance at the penalty phase. Kayer presented evidence in the PCR court that his trial counsel had performed little investigation of mitigating circumstances. He also presented extensive evidence of mental impairment due to mental illness and substance abuse which, he contended, competent counsel would have discovered and presented to the sentencing court. The PCR court denied relief, holding that Kayer's counsel had not been ineffective, and that, in any event, any deficiencies in his counsel's performance did not prejudice Kayer. The Arizona Supreme Court declined review without comment. Kayer then sought federal habeas corpus. The district court denied relief. On appeal to us, Kayer makes two claims with which we are centrally concerned. First, Kayer claims that the Arizona Supreme Court on direct appeal violated his Eighth Amendment right to be free of cruel and unusual punishment by applying its unconstitutional "causal nexus" test to his proffered mitigating evidence of mental illness and substance abuse. See Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ; McKinney v. Ryan , 813 F.3d 798 (9th Cir. 2015) (en banc). Second, Kayer claims that the Arizona Superior Court on post-conviction review erred in holding that his Sixth Amendment right to counsel was not violated by his counsel's deficient performance at the penalty phase. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons that follow, we decline to grant relief on Kayer's Eddings causal-nexus claim but grant relief on his Strickland ineffective-assistance-of-counsel claim. We reverse the judgment of the district court and remand with directions to grant the writ with respect to Kayer's sentence. I. Factual and Procedural History A. Factual History Lisa Kester approached a security guard at a Las Vegas hotel on December 12, 1994, to report that her boyfriend, George Russell Kayer, had killed Delbert Haas in Yavapai County, Arizona, ten days earlier. State v. Kayer , 194 Ariz. 423, 984 P.2d 31, 35 (1999). Kester was arrested and interrogated. The following account of the events leading up to and culminating in Haas's murder is largely based on Kester's narrative at trial, as summarized by the Arizona Supreme Court on direct appeal. On November 30, 1994, Kayer, Kester, and Haas traveled in Haas's van from Arizona to Nevada on a gambling trip. The three of them spent their first night sharing a room at a hotel in Laughlin, Nevada. Kayer told Haas that night that he had "won big" during the day using a special gambling system. Kayer knew that Haas had recently received money from an insurance settlement. He convinced Haas to lend him about $ 100. The next day, Kayer lost all the money Haas had lent him. Kayer lied to Haas, telling him that he had again "won big," id . at 36, but that someone had stolen his money. Kester asked Kayer what he planned to do now that he was out of cash. Kester testified that Kayer replied that he would rob Haas. Kester pointed out that Haas would easily identify Kayer as the thief. According to Kester, Kayer responded, "I guess I'll just have to kill him." Id. On December 2, Kayer, Kester, and Haas drove back to Arizona. Kester recounted in a pretrial interview that the three of them consumed a case of beer during the several-hour drive. Haas argued with Kayer about how Kayer would repay him. During a stop to buy snacks and use the bathroom, Kayer pulled a gun from beneath a seat in the van and put it in his pants. He asked Kester if she was "going to be all right with this." Id . Kester responded that she wanted Kayer to warn her before he pulled the trigger. Kayer, who was driving, left the main highway, purporting to take a shortcut. He stopped the van by the side of a back road. Haas got out of the van and walked toward the back to urinate. Kester started to get out of the van, but Kayer stopped her, motioning to her with the gun. Through the back window of the van, Kester saw Kayer walk up behind Haas and shoot him in the head while he was urinating. Kayer dragged Haas's body into the bushes; took Haas's wallet, watch and jewelry; got back in the van; and drove away with Kester. Kayer realized that he had forgotten to get Haas's house keys and drove back to where they had left his body. Kayer got out of the van to retrieve the keys, but returned and asked for the gun, saying that Haas did not appear to be dead. Kayer went back to Haas's body, and Kester heard a second shot. Kayer and Kester drove to Haas's home in Arizona and stole several items to pawn and sell at flea markets. They spent the next week pawning and selling the stolen property and gambling with the proceeds. Ten days after the murder, Kester approached a security guard in Las Vegas and reported that Kayer had killed Haas. She was taken into custody. Kayer was taken into custody soon afterwards. Kayer and Kester were indicted for first degree murder on December 29, 1994. The State initially announced that it would seek the death penalty against both of them. In September 1995, Kester entered into a plea agreement under which the State agreed not to seek the death penalty and, further, to limit dramatically her potential sentence. Under the agreement, Kester would receive, at worst, a six-and-a-half-year prison sentence. At best, she would be sentenced to probation. In exchange, Kester agreed to testify truthfully at Kayer's trial, consistent with her previous statement to the police. Kester testified as promised. After Kayer was convicted, Kester was sentenced to three years probation. B. Procedural History 1. Trial, Conviction, and Sentencing The jury convicted Kayer of first degree murder on March 26, 1997. Kayer's "aggravation/mitigation hearing" took place on July 8, 1997. His attorneys put on five witnesses. Their testimony was finished before noon. First, Jerry Stoller, a "detention officer" who worked in the law library of the county jail, testified that Kayer was always "very busy" when at the library, always taking "the full three hours." When asked if Kayer's "conduct has always been good," Stoller responded, "In my presence, yes." Second, Cherie Rottau, Kayer's seventy-six-year-old mother, testified that Kayer had been generally well behaved during high school. She testified that Kayer's father had died when he was in kindergarten and that she had not remarried until after Kayer had graduated from high school. She recounted that when Kayer was a teenager, he had shot two jackrabbits at her sister's house in the country. Afterwards, "He said, 'You know, that's not right to go out there and kill things.' He said, 'I'll never kill another thing as long as I live.' And to my knowledge, he hasn't." She testified that she did not have "any concerns about him until he was older," when he was nineteen and had already graduated from high school. "I noticed a change in him.... [H]e would work 24 hours and then when he'd get to sleep he'd sleep a long time, ... [W]hen he was happy he was real happy." "[W]hen he gets depressed, he just gets down at the bottom of the well, and when he's happy, ... there's nothing he can't do when he's happy. And he does accomplish a lot." She testified that Kayer's fourteen-year-old son had been "dropped" in the delivery room, and that he had "difficulties with school and certain other developmental things." She testified that Kayer and his son were "real close" and that Kayer had been "active in trying to get ... educational assistance" for his son. Third, Kayer's older half-sister, Jean Hopson, testified that Kayer's father (her stepfather) had drinking and gambling problems, and that Kayer had the same problems, beginning in his early twenties. She testified, "[H]e was a happy kid as a school kid, and I think his problems started when he was in the service, and shortly afterwards, getting married." She testified, further, that Kayer had "[h]ighs and lows." "We did have a family discussion one time, and he ... was diagnosed, I guess, as a bipolar manic-depressive, or something like that." "I believe [he was diagnosed] at the VA hospital. At one point, he checked himself in." "He is supposed to be on lithium now, but he read up on the side effects of lithium, how it can affect your liver and different body organs, and he will not take it." "I don't really totally understand the bipolar manic-depressive. I understand it enough to know that there are ups and downs[.]" Fourth, Mary Durand, who had just been hired as a mitigation specialist for Kayer, testified: In a normal mitigation case you would spend probably 100 hours at a minimum with the client, developing a rapport, learning information, taking a social history, gaining his confidence or her confidence so that you can get them to share with you things that are sometimes extraordinarily painful, sometimes things they don't want to relive, sometimes things they have buried and merely don't remember until other people start giving anecdotal evidence. Durand testified that she had been able to interview Kayer only twice, for a total of six or seven hours. Durand testified that although she had been able to interview some of Kayer's family members, the only documentary evidence she had been able to obtain was Kayer's "criminal court records from his prior involvements with the law." She had not been able "to get any of the psychiatric records from any of his stays at psychiatric hospitals around the country." She "didn't get any of his school records, medical records, any of his military records." Based on the information she was able to obtain, Durand testified that there was a "family history on both sides of alcoholism"; that there was a "history of mental illness"; and that Kayer was slow to develop as a child. She testified that Kayer "was allegedly diagnosed as a manic-depressive and was having such a manic state and then such a severely depressive state while he was in the military that he was allowed to get out of his military enlistment honorably, but under medical conditions[.]" When asked whether she had sufficient information "to give any sort of reliable opinions to the judge as far as mitigating elements," Durand responded: I would certainly not be qualified to give a medical opinion about a diagnosis of a psychiatric condition, and I do not feel comfortable giving an opinion about the length, breadth and depth of any other issue I have spoken to, because I have not been able to do my investigation. I do believe they exist. I do not know to what degree, for what length, and what duration, and how serious. (Emphasis added.) After Durand finished her testimony, the judge noted that sentencing was scheduled for July 15, a week later. He asked Kayer whether he wished more time for further investigation: Do you want more time? By asking you the question, I'm basically saying if you tell me right now that you've considered it, and you want more time, I'm prepared to give you more time. But I think you are an intelligent individual. You know what she's just testified to.... You got the information, you got the intelligence, you've talked to counsel, you've heard Ms. Durand. Your call. Kayer replied that he did not want more time. Finally, Kayer's son testified. His testimony took only eleven lines of transcript. At sentencing on July 15, the trial judge held that the state had established two statutory aggravating circumstances-that Kayer had been previously convicted of a "serious offense" and that the murder was committed for "pecuniary gain." However, the judge refused to find as an additional aggravating circumstance that the murder was committed in "an especially heinous, cruel or depraved manner." He explained: The pathologist was not able to testify anything ... as to the suffering of [the] victim in this case, so that would be the necessary finding as far as cruelty. As to heinous and depraved, that deals with your thoughts and conduct surrounding the murder and the events afterward. As I read the case law and the description, I do not find that the evidence presented rises beyond a reasonable doubt as far as proving heinous and depraved.... The trial judge found that Kayer had established only one mitigating circumstance-the non-statutory mitigator that Kayer had "become an important figure in the life of his son." The judge held that he could not find mental impairment as a mitigating circumstance. He stated, "I must find it by a preponderance of the evidence. I simply cannot. It has not been presented in any way, shape or form that would rise to that level." The judge concluded that Kayer's relationship with his son did not outweigh his prior conviction and his pecuniary motive for killing Haas. He sentenced Kayer to death. 2. Direct Appeal Kayer appealed to the Arizona Supreme Court. See Ariz. Rev. Stat. § 13-4031 (1997); State v. Kayer , 194 Ariz. 423, 984 P.2d 31 (1999). That Court conducted an independent review of Kayer's death sentence, in accordance with Arizona law. On direct review, the Arizona Supreme Court found the same two statutory aggravating circumstances that the trial court had found-prior conviction of a serious offense and commission of murder for pecuniary gain. It also found the same non-statutory mitigating circumstance as the trial court-Kayer's "importance in the life" of his son. As he had to the trial court, Kayer argued to the Arizona Supreme Court that he had a mental impairment that qualified as either a statutory or a non-statutory mitigating circumstance. First, Kayer argued that his mental impairment qualified as a statutory mitigation circumstance under Arizona Revised Statutes § 3-703(G)(1) (as it was then numbered), which required that the "defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of [the] law [be] significantly impaired, but not so impaired as to constitute a defense to prosecution." Kayer , 984 P.2d at 45. Kayer argued that "his history of mental illness, including a history of suicide ideation, a history of alcoholism in his family, and his own polysubstance abuse, establishes the existence of this mitigating factor under the preponderance standard." Id. The Arizona Supreme Court disagreed. It held that Kayer had presented insufficient evidence to establish the existence of any mental impairment whatsoever. The Court wrote that Kayer "did not establish as threshold evidence the existence of any of these factors, let alone their influence on preventing him from conforming his conduct to the law or appreciating the wrongfulness of his conduct." Id. The Court also held, in the alternative, that Kayer had failed to establish a "causal nexus" between the alleged impairment and the murder. Second, Kayer argued that his mental impairment qualified as a non-statutory mitigation circumstance. The Court held, as it had with respect to statutory mitigation, that Kayer had failed to present sufficient evidence to establish the existence of any impairment. The Court discounted Durand's tentative conclusions, writing that "Durand speculated that defendant suffered from mental difficulties." Id. at 46. The Court concluded, "[T]he record shows that the existence of impairment, from any source, is at best speculative." Id . In the alternative, the Court concluded that Kayer had failed to establish a causal nexus: Further, in addition to offering equivocal evidence of mental impairment, defendant offered no evidence to show the requisite causal nexus that mental impairment affected his judgment or his actions at the time of the murder. Id. After an independent weighing of the two aggravating circumstances and the one mitigating circumstance, the Arizona Supreme Court affirmed Kayer's death sentence. 3. Post-Conviction Proceedings Kayer filed a post-conviction relief ("PCR") petition in Arizona Superior Court. See Ariz. R. Crim. P. 32.1. In accordance with Arizona law, Kayer's trial judge presided over his PCR proceedings. Kayer claimed that the "trial court and the Arizona Supreme Court incorrectly applied United States Supreme Court law when they required [that] mitigating factors have a 'causal nexus' to the crime," in violation of Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The state responded that Kayer had procedurally defaulted his causal nexus Eddings claim "by not raising it in his direct appeal, or in a motion for reconsideration." The PCR court agreed, concluding that Kayer had procedurally defaulted this claim under Arizona Rule of Criminal Procedure 32.2(a)(3). Kayer also claimed that his Sixth Amendment right to counsel was violated when his trial counsel failed to conduct a constitutionally adequate mitigation investigation. The PCR court conducted a nine-day evidentiary hearing at the end of March 2006, during which Kayer's attorneys presented witnesses and documentary evidence showing the mitigation evidence that Kayer's trial attorneys could have uncovered had they performed a constitutionally adequate investigation. We describe this evidence in detail below. See infra , Section IV. The PCR court issued a very brief written decision on May 8, 2006, rejecting Kayer's Sixth Amendment ineffective assistance claim. The court concluded that Kayer had "voluntarily prohibited his attorneys from further pursuing and presenting any possible mitigating evidence." It concluded, in the alternative, that if deficient performance under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), had been shown, "no prejudice to the defendant can be found." The Arizona Supreme Court denied without explanation Kayer's Petition for Review of the Superior Court's denial of post-conviction relief. 4. Federal Habeas Petition On December 3, 2007, Kayer filed a timely petition in federal district court for a writ of habeas corpus under 28 U.S.C. § 2254(d). The district court denied relief, and Kayer appealed to this court. We remanded to the district court to give Kayer an opportunity to establish cause and prejudice pursuant to Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), for his counsel's procedural default in state court. The district court again denied relief. This appeal followed. II. Standard of Review "We review the district court's denial of [a] § 2254 habeas corpus petition de novo." Deck v. Jenkins , 814 F.3d 954, 977 (9th Cir. 2016). Kayer's habeas petition is subject to the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy , 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, "[w]e review the last reasoned state court opinion." Musladin v. Lamarque , 555 F.3d 830, 834 (9th Cir. 2009). In this case, that opinion is the written order of the state PCR court. AEDPA provides that where a state court has adjudicated a claim on the merits, relief may be granted only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or if the state court decision rests on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). "[A] state-court decision is contrary to [Supreme Court] precedent if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law ... [or] if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite] result...." Williams v. Taylor , 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court unreasonably applies Supreme Court precedent "if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Mann v. Ryan , 828 F.3d 1143, 1151 (9th Cir. 2016) (en banc) (alteration omitted) (quoting Williams , 529 U.S. at 413, 120 S.Ct. 1495 ). "[W]e may only hold that a state court's decision was based on an unreasonable determination of the facts if 'we are convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.' " Murray v. Schriro , 745 F.3d 984, 999 (9th Cir. 2014) (quoting Taylor v. Maddox , 366 F.3d 992, 1000 (9th Cir. 2004) ). Neither of these standards "require[s] citation of [Supreme Court] cases ... [or] even require[s] awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). We review de novo an exhausted claim that a state court has failed to decide on the merits. See Pirtle v. Morgan , 313 F.3d 1160, 1167 (9th Cir. 2002). We may not grant habeas relief if an error in state court was harmless. See Brecht v. Abrahamson , 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). III. Causal Nexus and Ineffective Assistance of Counsel There are four certified questions before us. The first two are the most important. First, Kayer contends that the trial court and the Arizona Supreme Court on direct appeal violated Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), by applying an unconstitutional "causal nexus" test under which a circumstance is not mitigating unless causally connected to the commission of the crime. Eddings held under the Eighth Amendment that a sentencer may not "refuse to consider, as a matter of law , any relevant mitigating evidence." Id. at 113, 102 S.Ct. 869 (emphasis in original). Second, Kayer contends that the Arizona PCR court erred in holding that his right to counsel under the Sixth Amendment under Strickland had not been violated. We consider these two questions in turn. A. Causal Nexus Kayer contends that the trial court and the Arizona Supreme Court violated Eddings . The State responds that Kayer procedurally defaulted and failed to exhaust his Eddings claim. In the alternative, the State contends on the merits that the Arizona Supreme Court did not violate Eddings . 1. Procedural Default and Exhaustion If Kayer procedurally defaulted and did not properly exhaust his causal nexus claim under Eddings , we may not grant his habeas petition on this claim. 28 U.S.C. § 2254(b)(1)(A), (c) ; Wainwright v. Sykes , 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). It is a close question whether Kayer has procedurally defaulted and failed to exhaust his Eddings claim. Because we conclude that if we reach Kayer's Eddings claim we must deny it on the merits, we will assume without deciding that there was no procedural default and failure to exhaust. 2. Merits We held in McKinney v. Ryan , 813 F.3d 798, 802, 821 (9th Cir. 2015) (en banc), that the Arizona Supreme Court's "causal nexus" rule, which "forbade as a matter of law giving weight to mitigating evidence ... unless the background or mental condition was causally connected to the crime," violated Eddings . Our opinion in McKinney included a long string cite of cases in which the Arizona Supreme Court had applied its unconstitutional causal nexus test. The string cite included the Court's affirmance of Kayer's death sentence on direct appeal. See McKinney , 813 F.3d at 816 (citing Kayer , 984 P.2d at 46 ). In explaining its conclusion that Kayer's alleged "mental impairment" was not a mitigating circumstance, the Arizona Supreme Court on direct appeal wrote that Kayer "offered no evidence to show the requisite causal nexus that mental impairment affected his judgment or his actions at the time of the murder." Kayer , 984 P.2d at 46 (emphasis added). The emphasized language shows that the Arizona Supreme Court viewed causal nexus as a prerequisite to the existence of a mitigating circumstance-not merely, as the state argues, as a factor bearing on the weight to be accorded to a mitigating circumstance. The Court therefore erred in rejecting Kayer's proffered mental impairment evidence on the ground that the alleged impairment did not have a causal nexus to the commission of the crime. See McKinney , 813 F.3d at 821. However, we cannot grant habeas relief if a constitutional error was harmless. See Brecht , 507 U.S. at 637, 113 S.Ct. 1710. Here, the error was harmless. The Arizona Supreme Court's causal nexus ruling was an alternative holding. The Court's principal holding was that Kayer had presented so little evidence of mental impairment that he had failed to establish even the existence of any such impairment. See Kayer , 984 P.2d at 46. We recounted above the scant evidence of mental impairment presented by Kayer's counsel during the penalty phase. Based on the evidence then before it, the Arizona Supreme Court made a reasonable determination of the facts in concluding that Kayer suffered from no mental impairment. 28 U.S.C. § 2254(d)(2). B. Ineffective Assistance of Counsel Kayer also contends that he was denied his Sixth Amendment right to effective assistance of counsel due to his attorneys' inadequate mitigation investigation in preparation for his penalty phase hearing. See Wiggins v. Smith , 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Kayer argued to the state PCR court, and continues to argue here, that his defense attorneys should have taken steps to investigate mitigation evidence beginning at the time of their appointment. Kayer presented to the PCR court evidence relating to both deficient performance and prejudice. 1. Deficient Performance a. Linda Williamson Kayer was indicted on December 29, 1994. Linda Williamson was appointed to represent him in January 1995. Williamson was then in her fourth year as a lawyer. She testified in the state PCR court that after graduating from law school she had worked for the Maricopa County Public Defender's office for three years. While there she had "participated in" "at least" six criminal trials. In December 1993, she left that office and moved to Prescott, Arizona, in Yavapai County. After arriving in Prescott, she worked for eight months for a criminal attorney and did one "misdemeanor DUI." She then began work as a contract attorney for the county. When Williamson got the contract to represent Kayer shortly thereafter, she had never represented a client in a murder case, let alone a capital case. Williamson testified in the PCR court that Kayer told her that he had not killed Haas. Williamson's paralegal's billing records reflect that this interview took place around February 1995, about a month after Williamson was appointed. After interviewing Kester, Williamson concluded that a jury was likely to credit her account rather than Kayer's, and that Kayer's chance of acquittal if Kester testified was "slim to none." She testified, "I did not see this case as fact-wise being favorable to Mr. Kayer in any way, shape, or form." Williamson testified that she concluded that the best guilt-phase strategy was to delay and to hope that Kester "would implode and not become the star witness for the state." Kester had previously suffered from drug addiction and she was pregnant with Kayer's child. Williamson hoped that Kester might again succumb to addiction, and that she might disappear or decide not to testify because of her personal relationship with Kayer. Williamson testified that she asked a more experienced attorney, James Bond, to "second chair" the case. Williamson testified that she engaged Bond to help her with the trial rather than with pre-trial preparation. Bond testified in the PCR court that he billed no time on the case and knew almost nothing about it. The record is unclear as to whether Bond even entered an appearance on Kayer's behalf. The county compensated Williamson at a very low rate. She testified that the county paid a lump sum of less than $ 500.00 for the first 80 hours of work, and at a rate of $ 40.00 per hour after that. Williamson billed a total of 122 hours, including the first 80 hours. Williamson had the assistance of a retired detective who worked as an investigator, though he was billed as a paralegal because he did not have an investigator's license. Williamson testified that the investigator "did a lot of investigation to find out what the State's case [was]." Williamson represented Kayer for seventeen and a half months. She visited Kayer infrequently, once allowing eight to ten months to elapse between visits. She did no preparation for a penalty phase trial. She testified, "I can absolutely tell you there was no focus on mitigation as far as penalty phase." Williamson testified that she never consulted a mitigation expert. When asked whether her decision not to investigate mitigation was strategic, she testified, "I don't know if it was strategic." "I can't tell you specifically that I ever thought about mitigation pretrial." Her investigator spent no time preparing for the penalty phase. On June 21, 1996, Williamson was allowed to withdraw from representing Kayer on the ground that the attorney-client relationship had broken down. b. David Stoller and Marc Victor David Stoller was appointed to replace Williamson at the end of June 1996. Before becoming a defense attorney, Stoller had worked for a number of years as a prosecutor. He testified in the PCR court that as a prosecutor he had tried "probably" forty to fifty felony cases, including one death penalty case. He also had done "some post-conviction relief matters that were death penalty as a prosecutor," and had done two post-conviction matters as a defense counsel. He had never defended a capital case as trial counsel. Stoller worked on his own for three and a half months. He had no paralegal and he did much of his own secretarial work. Some secretarial work was hired out on a piece-work basis. On September 17, 1996, at the request of Kayer, Marc Victor was appointed as second chair. Victor had graduated from law school two years earlier, in the spring of 1994. Victor had formed a relationship with Kayer while representing him in a "prison contraband" case that arose while Kayer was being held in county jail awaiting trial in his capital case. Stoller testified in the PCR court that no mitigation investigation had been done before he was appointed to represent Kayer. He found the guilt-phase work done by Williamson's investigator unhelpful. He testified, "I was going to have to redo, re-plow the ground myself." Stoller testified that he nonetheless did not "initially" "seek the assistance of investigative services" when he was appointed to represent Kayer. Without consulting Stoller, Kayer's family had hired an investigator with their own money. Stoller spoke with that investigator several times on the telephone. He testified that he also found the work of that investigator unhelpful. Stoller never asked the investigator to do any mitigation investigation. Victor testified in the PCR court that when he came on the case in mid-September 1996 very little had been done. When he first got the case file, it was "a disaster." "I was appalled. I felt that a lot of time had passed. Very little was done and I frankly was embarrassed that I now was an attorney on a case that was so disorganized[.]" Victor filed a "blizzard of motions" in January 1997. At that point, a little more than two years after Kayer's indictment for capital murder and six months after Stoller had been appointed to represent him, no mitigation investigation had been done. One of Victor's motions, filed on January 15, sought funds for two investigators-a "general purpose" investigator, and a mitigation investigator. The motion was granted on February 24 as to the general purpose investigator, but was "deferred" as to the mitigation investigator "unless and until there was a guilty finding in the case." Victor testified that the deferral "put a halt to our mitigation efforts.... That would have been less of a problem had I been involved in this case from the very beginning, and then could have had a more reasonable opportunity to maybe both do a mitigation workup myself, as well as prepare motions and get ready for the guilt phase." "[G]iven the circumstances [that] the case had substantially languished for an unreasonable length of time at the time I got involved[,] ... [the deferral] was devastating to our ability to undertake mitigation." Neither Stoller nor Victor sought rehearing of the motion for funds for a mitigation investigator. Nor did they appeal the court's deferral of the motion. Victor testified in the PCR court that, in his view, early investigation of mitigation evidence was less important at that time than it later became, after the Supreme Court decided Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requiring jury sentencing in capital cases. Victor was asked, "Would you agree ... that counsel must begin mitigation investigation immediately upon an appointment to a capital case?" Victor responded, "[T]he answer today is a little different than the answer at the time that I was representing Mr. Kayer, where in Arizona, at least, the court made [the sentencing decision]. The reason that's important is because there is at least availability of much more time from the guilt phase to the sentencing phase, with the judge sentencing." Trial began on March 5, two weeks after the deferral of the motion for funds for mitigation investigation. The jury returned a verdict of guilty on March 26. The court scheduled Kayer's sentencing hearing for May 27. On April 8, funds were authorized for a mitigation investigator. According to Stoller's records, his first substantive conversation with the investigator, Mary Durand, was on May 14, more than a month later, though Stoller testified that he may have talked to her earlier: "Well, I had notes between April 9th and May 14th-whether they were lost-I can't believe I did nothing during this period, but I know that I spoke to her at length on the evening of May 14th and I think I may have had other contacts." Durand first met with Kayer on May 21, a week after the conversation with Stoller and six days before the original date for the sentencing hearing. c. Mary Durand When Mary Durand testified at Kayer's sentencing hearing, she had already worked as a mitigation specialist on almost one hundred capital cases. When she testified in the PCR court, she had worked on one hundred and fifty. She testified in the PCR court that to her knowledge no mitigation specialist in Arizona had worked on more capital cases. Durand testified in the PCR court that spending a substantial amount of time with a capital defendant, beginning very early in the case, is essential in order to build trust. Most capital defendants "believe, at least initially, that the pursuit of a mitigation case is necessarily a concession of guilt." Durand testified that the "time required to develop rapport and trust with a capital client typically takes a hundred hours." She testified, "When you spend time talking to them, if you have the proper amount of time, every occasion but one, in capital cases that I have done, I have gotten the client's permission to do what I need to do." Durand wrote in an affidavit filed in the PCR court, "[T]o investigate and develop the mitigating factors in a capital case may well require up to 1500 hours," including "200 plus hours (40 hours a month for five months) to interview, review and consult with the client." Durand testified that it is important to begin mitigation investigation early: "You work with them to help them understand what mitigation is, why it's important[.]" She testified further: One of the most important things that you do in mitigation is get all the records that you possibly can, documents that you can have in your hand. And part of that is because many clients who have head injuries, high fevers, brain damage of any kind, accidents and mental illness, don't remember incidents that occurred, or remember them incorrectly. So I try not to talk to clients about important issues in their life until I have the records. Durand testified in the PCR court that her first substantive conversation with Stoller was on May 14. She was emphatic that she had had no substantive conversation with Stoller before that date. When Stoller talked to Durand on May 14, the penalty phase hearing may already have been rescheduled from May 27 to June 24 or 25. (The hearing was ultimately held on July 8.) Durand testified that Stoller did not tell her during their conversation that the penalty phase hearing was imminent and that time was of the essence. Durand testified that she met with Kayer twice for a total of seven hours, on May 21 and June 5. Durand learned from Kayer when they met on May 21 that the hearing was imminent. Durand's first meeting with Kayer was a "cold call." She testified, "I had no documents. I had nothing." At that meeting on May 21, Kayer "show[ed] an initial reluctance to allow [her] to pursue mitigation." However, he was willing to provide the names of his mother and sister, along with addresses and phone numbers. He also told Durand that he believed his mother would have some records, though, as it turned out, his mother was unable to locate any records when Durand went to see her. At the first meeting on May 21, Durand persuaded Kayer to sign releases, enabling her to request documents relevant to mitigation. Durand promptly sent requests, accompanied by the releases, to the institutions holding the documents, even though it was likely that few (perhaps none) of the requested documents would be provided in time for the penalty phase hearing. She testified, "I sent [the releases] to all the places that I believed there might be records." None of the school, mental health, and military records sought by Durand were provided by the date of the hearing on July 8. When Kayer met Durand on May 21, he had never heard the term "mitigation." Durand testified that Kayer "was extremely unhappy when he realized that [a mitigation investigation] should have been started the day he was arrested or indicted, and that the two and a half years he'd already been in the jail could have been used to do the mitigation." She testified: I explained what I did in broad terms. He said that he had never heard the term [mitigation] before. Had no idea what it meant.... We talked at great length about mitigation. He had lots of questions. But everything came back to time; "How much time will that take?" And I said, "Well, might take six or eight months just to get the military records." His response was, "You don't have six to eight months because I don't have six to eight months." And I could not get him past that. Kayer allowed Durand to involve his mother and sister and was willing to sign releases. However, Kayer was adamant that he did not want to pursue mitigation research that would involve substantial delay. Kayer did not have "six to eight months" because, Durand testified, he "wanted desperately to get out of the Yavapai County Jail." She testified, "He hadn't been getting his medications [for his heart condition]." Further, and more important, "[H]e was terrified that he was going to be killed, that he would lose his life in that facility." There had already been a murder in the jail, and Kayer "had been assaulted and hospitalized in the jail infirmary for his injuries." Durand's contemporaneous notes of her interviews with Kayer recorded, "Afraid he'll lose his life here." On June 6, the day after Durand's second meeting with Kayer, the trial court held a case management meeting. Durand was traveling and was unable to attend. Kayer and Victor were present; Stoller appeared by telephone. Stoller informed the court that Kayer "simply did not want to be in the County jail system any longer" and that he opposed any continuance. Kayer told the court that he did not believe that Durand would be able to discover any useful mitigation information. Kayer stated: [F]rom what I understand in my conversation with Mary Durand, she is talking about a fetal alcohol syndrome that possibly existed. She hasn't had the opportunity to investigate it, and some minor areas and details in my life that I personally can't see how they would relate to mitigation in this case.... I'm saying I don't see anything here of substantial value.... I don't feel the lack of Mary Durand's mitigation is going to be a major factor in the decision [whether I am sentenced to death]. The court indicated that it might be willing to continue the date of the penalty phase hearing for perhaps thirty days and asked Kayer if he wanted a continuance: [I]f I do move it, I'm not about to move it anywhere near 180 days off. I'm probably not even thinking seriously about 90 days off. I'm thinking maybe I could be talked into an additional 30 days, something like that, if there was some specific purpose. Based on his belief that Durand would not be able to discover useful information, Kayer opposed any continuance: Believe me, if I thought that-that Miss Durand had valid evidence that should be presented in front of this Court, I'd be scratching and clawing and asking for 180 days as well. I'm not in favor of any more continuances. Does that answer your question? d. Keith Rohman Keith Rohman testified as a mitigation specialist in the PCR court. Rohman had done mitigation work in capital cases for many years. He was a licensed private investigator and Adjunct Professor at Loyola Law School in Los Angeles. He testified in the PCR court: "[O]ne of the very first steps in any capital mitigation representation is to meet the client, start to establish a relationship with the client and attempt the process of collecting a life history, information that might be relevant.... [T]hat first meeting is really critical because it is [the] spot where you start the process of educating the client." Rohman testified that a "significant number," of capital defendants initially resist mitigation investigations, "[a]nd so it takes some time to work through[.]" Rohman testified that an additional reason to start mitigation investigation "from day 1" is that information learned in the investigation can sometimes help at the guilt phase of the case. Rohman testified that this "protocol and practice" in the "field of mitigation" had been well established by 1995, when Kayer was indicted. e. Larry Hammond Larry Hammond testified in the PCR court on behalf of Kayer. At the time of his testimony, Hammond had practiced law for thirty-six years. After graduation from law school, he had been a law clerk to Justices Hugo Black and Lewis Powell. He had been a founding board member of the Arizona Capital Representation Project in 1989, and had continued as a board member since then. He had been Chair of the State Bar Indigent Defense Task Force, paying particular attention to representation in capital cases, since the mid-1990s. He had been appointed in the late 1990s by the Arizona Supreme Court to serve on the Post-Conviction Relief Appointment Committee, whose function was to "screen applicants for appointment to undertake work as post-conviction relief counsel in capital cases." Hammond's Phoenix law firm had had at least one active capital case in the office at all times since 1981, and he had been the "lawyer primarily responsible for all of them." He had been lead counsel in ten capital cases. In three of those cases, he had been lead counsel from start to finish-two cases in Arizona state court in 1991 and 1994, and one case in federal court in Arizona in 2005. Hammond's testimony focused on the standard for effective assistance of counsel in capital cases that had been established by 1995, when Kayer was indicted. Specifically, Hammond testified that the standard of practice he described was based on ABA guidelines from 1989 and other sources from that period. "[T]he information that I provided [in my testimony today] was well known in Arizona and elsewhere from as far back as the 1980s." Hammond testified that in a capital case "it is of critical importance to develop both the guilt-innocence side of the case and the sentencing side of the case from the beginning." Hammond testified, consistently with Durand, that capital defendants initially resist doing mitigation research at the beginning of a case. In part, defendants "instinctively" believe that mitigation will become relevant only after conviction, and they want their attorneys to focus on the guilt-innocence side of the case. Further, defendants are "embarrassed" and do not want to involve people such as "family members and their high school basketball coaches and people who they have known growing up." Still further, conditions in county jails are not conducive to effective communication: A client is "there for 19 months or 20 months or two years waiting for trial. So dealing with a client and explaining to a client why mitigation is important in that environment can be doubly difficult." Finally, "most people charged with capital crimes have some form of what I would call a mental health issue or problem." Hammond testified that a capital defendant's initial resistance is almost always overcome when a client is properly advised at the beginning of the case: [I]n case after case after case the opening experience-not just with me and my clients-but with the other defendants facing death ... was what I described earlier. This resistance. But eventually for virtually every one, virtually every one of those defendants, they began to see that the mitigation part of the case was important. Hammond specifically addressed the need to educate judges, as well as clients, about the importance of getting an early start on mitigation work. He testified, "[A] mere denial of either the client to wanting to do mitigation or the court to providing the resources cannot be the end of the conversation." "[T]here is an inherent logic and simplicity in getting the resources necessary for capital defense. And in cases all across the country once the case is laid out, once the explanation is given to good judges about what is necessary and why it's necessary, the experience is that good judges say: 'I understand that and now we will work together to make it happen.' " Hammond also specifically addressed Victor's view that getting an early start on mitigation work was less important during the pre- Ring period when judges rather than juries determined sentences in capital cases in Arizona. Hammond was unequivocal that Victor was incorrect: The need for the development of a mitigation case is no different in Arizona prior to Ring than it is after Ring .... [T]he concept that a lawyer can simply wait until after the guilt phase to begin doing mitigation is simply wrong.... If you knew nothing else other than that a capital defense lawyer said "I can defer all mitigation until after the trial", that lawyer is acting at a level far below what is deemed acceptable under any kind of a Strickland analysis for lawyers in Arizona or in any of the other six or seven states that prior to Ring had judge sentencing. 2. Prejudice Kayer's post-conviction counsel presented extensive mitigation evidence in the PCR court. His post-conviction counsel contended that his trial attorneys could have uncovered and presented this evidence at his sentencing hearing if they had performed a proper mitigation investigation. a. Personal and Family History Kayer was born in Long Beach, California, in August 1954. In the first of many moves, the family moved to Denver when he was two. Kayer's father left the family shortly after arriving in Denver. He never returned to the family. He died of a heart attack at age thirty-nine. After his father left the family, Kayer, his older stepsister, and his mother moved to Bloomington, California. According to his mother and his uncle, Kayer was slow to walk. He had poor balance and fell frequently. His mother recounted that "he always had bruises ... on his head and body." His uncle recounted that his mother was afraid to take him shopping because he was "covered with bruises." According to his uncle, he was slow at all his developmental stages. His mother recounted that Kayer had great trouble falling asleep. Kayer was dyslexic. In an interview with Mark Goff, an investigator for Keith Rohman, Kayer stated that he was good with numbers, but that "[t]o this day he has to write things three or four times to get the spelling right." Kayer recounted in the interview that "[i]n school he flunked English, but got A's in everything else." (As will be seen in a moment, Kayer's recounting of his school grades was inaccurate to the point of being delusional.) Kayer told Goff that at age seven he came to believe (and then continued to believe) that he had come to earth from another planet. Kayer and his mother moved to Arkansas after ninth grade. Kayer began using drugs when he was sixteen. He told Goff that he would "smoke weed almost every day," and would usually use speed on the weekends. He recounted "Speed works good for a night owl." Kayer would sometimes use LSD. Some of Kayer's high school grades are in the record. In the fall of the ninth grade in Fontana, California, he got one B (in Drafting), five Cs, and one D (in English). In the spring, he got two Bs (in Typing and PE), one C, two Ds, and two Fs (in History and English). In fall of the tenth grade in Morrilton, Arkansas, he got one C (in English), four Ds, and one F (in Algebra). In the spring, he got one B (in Speech), two Ds, and two Fs (in English and PE). Kayer left high school, in Seligman, Arizona, without graduating, leaving either at the end of his junior year or part way through his senior year. After leaving high school, Kayer enlisted in the Navy. He was seventeen years old. Within eight months, he had two "unauthorized absences" ("UAs"). He was arrested and jailed in Texas at the end of his first UA. He returned voluntarily from his second UA "in order to see a psychiatrist." In May 1973, after his second UA, Kayer was referred to Bethesda Naval Hospital with a diagnosis of "schizoid personality." He was held there for a little more than three weeks. Kayer was discharged from Bethesda with a diagnosis of "passive-aggressive personality." In a written evaluation at discharge, Lieutenant Commander M. D. Fitz, head of the "Enlisted Psychiatric Service," characterized Kayer's "impairment" as "severe." Fitz wrote, "In view of the severity of his personality disorder it is recommended that he be administratively separated from the service." After his release from the Navy, Kayer returned to Arizona. At various times, he attended Yuma Community College, Arizona State University, and Arizona Western College, but received no degrees. In his interview with Goff, Kayer stated that he never got a degree because he believed he could make more money buying and selling jewelry than with a degree. Kayer had two unsuccessful marriages in his early twenties. Kayer's second marriage was to an Afghan woman. Kayer maintained in his interview with Goff that her uncle was "the deposed king of Afghanistan." When Kayer was twenty-five or twenty-six, he met Cindy Seitzberg. Kayer and Seitzberg never married, but they lived together for several years. They had a son, Tao, who was dropped in the delivery room and suffered permanent brain damage. About six months after Tao's birth, Seitzberg began work as a stripper while Kayer stayed home to take care of Tao. When Tao was about one, Seitzberg left Kayer. Kayer's half-sister Jean Hopson testified in the PCR court, "[Cindy] had brought [Tao] to my mother's and asked if she would like to keep him for the weekend, and my mother said 'yes.' And we never saw her again." Hopson and Kayer's mother became co-guardians of Tao. Beginning in his mid-twenties, Kayer began committing property crimes. He first committed a series of burglaries with a friend, Peter Decell. They were caught, and Kayer served a short time in jail in Arizona. Shortly after his release from jail, Kayer was arrested for burglary in Arkansas. Later, when she was pregnant with Tao, Seitzberg served as a lookout for Kayer while he committed burglaries. Kayer continued committing burglaries well into his thirties. Interspersed with his burglaries, Kayer worked as a photographer, a salesperson for a satellite communications company, a hazardous waste remover, and a buyer, maker and seller of jewelry. He never held a job for a sustained period. His cousin, Barbara Rogers, testified at the PCR hearing, "[H]e had trouble with holding ... a job.... He had trouble working for others.... [H]e had a lot of emotional problems, depression." Kayer began drinking alcohol regularly when he was about twenty-one, and soon became a very heavy drinker. Peter Decell recounted that during their time together Kayer would drink beer "for breakfast, lunch and dinner." Kayer reported that when he was twenty-five he was drinking half a quart of bourbon a day. When Kayer checked himself into a Veterans Administration hospital at age thirty-five, Dr. A. Rodriguez reported that Kayer was "acutely intoxicated." "He presented himself with a very strong odor of alcohol, and it was very difficult for him to get his thoughts together because of alcohol intoxication. The patient had been drinking continuously and heavily for the past seven years[.]" Sometime in his twenties, Kayer became a compulsive gambler. His half-sister Jean Hopson testified that he had a "gambling addiction." Kayer told Hopson that he had a gambling "system." Kayer's cousin, Barbara Rogers, testified that her close girlfriend dated Kayer for a time, and that when the girlfriend and Kayer went to Las Vegas, "she could not get him away from the ... gambling table. He would not leave." In his mid-thirties, while in prison in Arizona on a burglary conviction, Kayer engaged in illegal bookmaking. After release and while on "house arrest," Kayer took off his ankle bracelet and flew to Las Vegas to gamble. Kayer turned himself in after he had lost all his money. He was sentenced to an additional nineteen months for violation of parole. Beginning shortly after his release from the Navy at age eighteen, Kayer experienced severe mood swings. His mother and sister both described his mood swings in their testimony at his sentencing hearing. See supra at 696-67. Barbara Rogers testified in the PCR court about Kayer's "manic behavior." As an example, she described a trip Kayer decided to take, "out-of-the-blue when it wasn't prepared, it wasn't a good time." "I kept telling him no. And he was just real excited about it, wouldn't stop talking about it." In her interview with Goff, Seitzberg recounted, "I would stay up with him at night and ... would see mood swings.... [He] would either work [at something] all out, or do nothing." In 1983, shortly after the birth of his son Tao, Kayer went voluntarily to a VA hospital. Kayer was twenty-nine. He was observed to be "agitated" and "tearful." Kayer is quoted on the VA form as saying, "I just want to know what's wrong." The form records: "P: to see MD." Immediately below, a doctor with an illegible signature wrote, "Pt is depressed with some suicidal ideation" and "diagnosis: adjustment disorder with depressed mood." Six years later, in 1989, Kayer checked himself into a VA hospital, where he was kept for eighteen days. Dr. A. Rodriguez wrote on the VA form that Kayer had been "admitted ... with depression and suicidal ideation." "He admitted to suicidal and homicidal ideations towards his girlfriend [who had just left him] and her boyfriend, but didn't plan to do anything to them while he is in the hospital, and wanted some help." Dr. Rodriquez wrote that Kayer "showed bipolar traits." At the time of discharge, Kayer was "not considered to be a danger to himself or others." At discharge, he was prescribed one month's supply of lithium, a standard medication for bipolar disorder. In 1990, Kayer was referred to a VA "Day Treatment Center" for therapy, with a "provisional diagnosis" of "Personality Disorder/Bipolar." Kayer told a probation officer in 1990 that until he was diagnosed during his stay at the VA hospital in 1989 "he had no idea what was wrong with him." Kayer had a history on both sides of the family of alcoholism, compulsive gambling, and mental illness. Kayer's father, who left the family when Kayer was two and died at age thirty-nine of a heart attack, was an alcoholic and compulsive gambler. One witness testified at the PCR hearing that Kayer's father "wasn't happy unless he was gambling." On his mother's side, Kayer's Aunt Opal Irene Marchman (one of his mother's three sisters) testified about herself in the PCR court, "I have [heard voices] all my life. My grandpa heard voices. It runs in the family." She testified that Kayer heard voices, too: "I was just telling him about my life and he said 'I thought it was normal[.] I hear voices, too.' " She testified, further, that alcoholism and depression "run[ ] in the family." Kayer's Aunt Ona Mae Tanner (another of his mother's sisters) was an alcoholic with severe mood swings. Ona Mae's daughter, Jean Reilly, was an alcoholic and compulsive gambler who was first diagnosed as schizophrenic and then as bipolar (manic depressive). Jean Reilly's niece, Barbara Rogers, testified in the PCR court that Jean had "electric shock therapy" after a "nervous breakdown." Jean's daughter, Constance Stabile, testified, "[A]bout every year [Jean] would get manic, very manic an