923 F.3d 692

OWENS, Circuit Judge, concurring in part and dissenting in part:
While I agree with much of the majority's decision, I part ways as to its conclusion that we must reverse Kayer's death sentence. I cannot say that the Arizona PCR court acted unreasonably regarding prejudice in light of the aggravating and mitigating circumstances in this case.
The AEDPA standard is "highly deferential" and "difficult to meet." Harrington v. Richter , 562 U.S. 86, 102, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citations omitted). The petitioner must show that the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id . at 103, 131 S.Ct. 770. In other words, AEDPA "demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).
The majority concludes that the aggravating factors supporting imposition of Kayer's death sentence were "not overwhelming." Majority Opinion 721. It focuses on the prior serious offense aggravating factor as being "relatively weak," Majority Opinion 718-19, 721-22, but overlooks the strength of the pecuniary gain aggravating factor. For that aggravator, the defendant must have a financial "motive, cause, or impetus" for the murder. State v. Kayer , 194 Ariz. 423, 984 P.2d 31, 41 (1999) (citation omitted). There is no dispute that Kayer had a financial motive for killing Haas, doing so for a mere few hundred dollars' worth of cash and other items. See State v. Soto-Fong , 928 P.2d 610, 632 (1996) ("Pecuniary gain does not focus on whether the defendants were effective or thorough robbers, but on whether their motive was financial gain.").
Moreover, the crime here was brutal, even if it did not rise to the level of "especially heinous, cruel or depraved." Kayer decided to rob and kill Haas, and the next day shot Haas in the head at point-blank range during a remote bathroom stop on their drive home from a gambling trip. Kayer took Haas's wallet, watch, and jewelry. Kayer left Haas in the bushes and drove away, but turned around upon realizing he had forgotten to take Haas's keys to loot his house. Kayer returned to the murder scene, retrieved the keys, and shot Haas in the head again because he did not appear to be dead.
These facts are remarkably similar to Visciotti , where the U.S. Supreme Court reversed our grant of habeas relief. 537 U.S. at 20, 123 S.Ct. 357. There, in a preplanned armed robbery, the defendant and his co-worker shot two co-workers as they all drove to a party and made a remote bathroom stop (one victim died and one survived). Id . The defendant was sentenced to death. Id . At the PCR stage, the California Supreme Court determined that the defendant had not been prejudiced by his counsel's failure to introduce mitigating evidence about his background. Id . at 21, 123 S.Ct. 357. In particular, the California Supreme Court concluded that the mitigating evidence was outweighed by "the circumstances of the crime (a cold-blooded execution-style killing of one victim and attempted execution-style killing of another, both during the course of a preplanned armed robbery) coupled with the aggravating evidence of prior offenses (the knifing of one man, and the stabbing of a pregnant woman as she lay in bed trying to protect her unborn baby)." Id . at 26, 123 S.Ct. 357. We held that decision was objectively unreasonable and granted habeas relief. Id . at 21-22, 123 S.Ct. 357.
The U.S. Supreme Court reversed, stating that we had impermissibly "substituted [our] own judgment for that of the state court, in contravention of" AEDPA. Id . at 25, 123 S.Ct. 357. Likewise, here, the majority impermissibly substitutes its own judgment that Kayer was prejudiced. Granted, the prior offenses in Visciotti were more serious than Kayer's prior burglary conviction. However, the "federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable. It is not that here." Id . at 27, 123 S.Ct. 357. The majority contends that Visciotti is different because it took place in California, involved a PCR decision by the state supreme court, and Arizona had a distinct capital sentencing scheme at the time. Majority Opinion 723-24. But those differences do not excuse AEDPA deference to the Arizona PCR court's decision here. See Schriro v. Landrigan , 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (reversing Ninth Circuit in an Arizona capital case, and noting that "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold").
Further, Kayer's mitigation-mental illness, and gambling and alcohol addiction-was hardly overwhelming; we have denied habeas relief based on far worse mitigating facts than this one. See, e.g. , Apelt v. Ryan , 878 F.3d 800, 815-16 (9th Cir. 2017) (denying habeas relief even though trial counsel failed to uncover mitigating evidence that the defendant grew up very poor, had an alcoholic and violent father who beat his children with an iron rod, was raped twice as a child, and suffered from mental illness); Cain v. Chappell , 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite new mitigating evidence that the defendant was severely beaten and punished by his stepmother, had an untreated childhood head injury, and had learning disabilities).
Here, we have an undisputedly strong aggravating factor, an arguably weak one, and some mitigation, all of which the Arizona PCR court reviewed. The majority's reliance on State v. Brookover , 124 Ariz. 38, 601 P.2d 1322 (1979), a forty-year-old case, ignores what the state court did in this case. The U.S. Supreme Court has warned us again and again not to intrude on state court death sentences unless "so lacking in justification" as to give rise to constitutional error "beyond any possibility for fairminded disagreement." Richter , 562 U.S. at 103, 131 S.Ct. 770. I fear that we have done so again, so I respectfully dissent.

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