and Submitted January 12, 2015-Pasadena, California
from the United States District Court, No. 2:02-CV-08969-R,
2:02-CV-08969-R for the Central District of California Manuel
L. Real, District Judge, Presiding
Michael Burt (argued), Law Office of Michael Burt, San
Francisco, California, for
Xiomara Costello (argued), Sarah J. Farhat, Shira Seigle
Markovich, and A. Scott Hayward, Deputy Attorneys General;
Lance E. Winters, Senior Assistant Attorney General; Keith H.
Borjon, Supervising Deputy Attorney General; Dane R. Gillette
and Gerald A. Engler, Chief Assistant Attorneys General;
Edward C. DuMont, Solicitor General; Michael J. Mongan,
Deputy Solicitor General; James William Bilderback II,
Supervising Deputy Attorney General; Office of the Attorney
General, Los Angeles, California; for
Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia,
panel withdrew an opinion filed August 5, 2015; denied as
moot a petition for rehearing and petition for rehearing en
banc; and filed a superseding opinion in an appeal and
cross-appeal arising from Jesse James Andrews's
conviction and capital sentence for three murders.
panel reversed the district court's grant of relief on
Andrews's ineffective-assistance claim that he was
prejudiced by his counsel's failure to investigate and
present additional mitigating evidence at the penalty phase
of his trial. The panel held that under 28 U.S.C. §
2254(d)(1), the California Supreme Court did not unreasonably
apply Supreme Court precedent in concluding that Andrews was
not prejudiced by any deficient performance.
panel dismissed as unripe the sole claim certified by the
district court for appeal - that California's use of its
lethal injection protocol to execute Andrews would violate
his Eighth Amendment rights. The panel held that because no
new protocol was in place at the time the district court
ruled on the claim, the district court erred in entertaining
panel denied Andrews's request to certify for appeal his
uncertified claims of unconstitutional delay between
sentencing and execution, ineffective assistance of counsel,
failure to disclose material exculpatory evidence and false
testimony, and destruction of evidence.
panel held that the district court did not abuse its
discretion in denying Andrews's motion for an evidentiary
in part, Judge Murguia would affirm the district court's
order granting Andrews relief due to ineffective assistance
of counsel at the penalty phase of his trial.
opinion filed August 5, 2015, and reported at 798 F.3d 759,
is withdrawn. Because the court's opinion is withdrawn,
appellant/cross appellee's petition for rehearing and
petition for rehearing en banc is moot. A superseding opinion
will be filed concurrently with this order. Further petitions
for rehearing and petitions for rehearing en banc may be
James Andrews appeals from the district court's denial of
all but one of the claims raised in his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. The state
cross-appeals the district court's grant of relief on
Andrews's claim that his counsel's assistance was
ineffective at the penalty phase of his capital murder trial.
We dismiss as unripe the claim the district court certified
for appeal, and deny Andrews's motion to expand the
certificate of appealability to include uncertified claims.
We reverse the district court's grant of relief on the
ineffective assistance claim because, under 28 U.S.C. §
2254(d)(1), the California Supreme Court did not unreasonably
apply Supreme Court precedent in concluding that Andrews was
not prejudiced by any deficient performance by his counsel.
December 9, 1979, police were called to a Los Angeles
apartment, where they found the bodies of three murder
victims. People v. Andrews, 776 P.2d 285, 288 (Cal.
1989). The murder victims were Preston Wheeler, who lived in
the apartment, Patrice Brandon, and Ronald Chism.
Id. The California Supreme Court described the
murder scene as follows:
Wheeler had been stabbed in the chest six times and shot in
the neck at close range with either a .32- or .357- caliber
weapon. His face and head were bruised, and his face had been
slashed with a knife. Brandon and Chism had been strangled
with wire coat hangers. Their faces were bruised, Chism's
extensively. Brandon's anus was extremely dilated,
bruised, reddened and torn, consistent with the insertion of
a penis shortly before her death. There was also redness
around the opening of her vagina, and vaginal samples
revealed the presence of semen and spermatozoa. All three
victims were bound hand and foot.
a year later, police arrested Charles Sanders in connection
with the murders. Id. Sanders entered into a plea
agreement, in which he pleaded guilty to three counts of
second degree murder, admitted a gun enhancement, and agreed
to cooperate with the prosecution, in exchange for a sentence
of 17 years to life in prison. Id. During his
interrogation by the police, Sanders gave both a
tape-recorded and a written statement. Id. He also
testified at Andrews's trial, and described the crime as
Sanders testified that he and [Andrews] devised a plan to rob
Wheeler, a drug dealer. [Andrews] armed himself with a .357
magnum and gave Sanders a .38-or .32-caliber automatic. On
the evening of the murders, they visited their friend, Carol
Brooks, who lived in the same apartment building as Wheeler,
and then went to Wheeler's apartment. In response to
their knocking, Wheeler, who apparently knew [Andrews], let
them in. Also inside the apartment was a woman (Patrice
Brandon). After smoking some marijuana with Wheeler,
[Andrews] and Sanders drew their guns. Sanders tied Wheeler
and Brandon with belts and socks, put on a pair of gloves,
and began to search the apartment for drugs and money. Except
for some powder on a saucer which appeared to be cocaine, the
search was unsuccessful. [Andrews] questioned Wheeler, who
denied having any drugs or money. Saying he would make
Brandon talk, [Andrews] dragged her into the kitchen and
closed the door. Sanders remained in the living room with
Sanders heard [Andrews] hitting Brandon and later heard
sounds as though they were having sex. When [Andrews] came
out of the kitchen shortly thereafter, Sanders saw
Brandon's pants around her ankles.
[Andrews] put his gun in Wheeler's mouth. He threatened
to kill Wheeler and Brandon unless Wheeler revealed the
location of the drugs. Wheeler said the 'dope' was in
the attic, and pointed out a trap door leading up to it.
Sanders climbed into the attic. While in the attic, Sanders
heard two shots. When he came down, [Andrews] told him he had
shot Wheeler because the latter had tried to jump out the
window. Sanders asked if Wheeler was dead. [Andrews]
responded he was 'standing right up' on Wheeler when
he fired the gun . . . . When Sanders asked about Brandon,
[Andrews] replied he had killed her before leaving the
While [Andrews] and Sanders were cleaning up the apartment,
Ronald Chism knocked on the door and asked if everything was
all right. [Andrews] said Wheeler was home and invited him
inside. [Andrews] then hit Chism on the head, tied him up,
and took him into the bathroom. Sanders saw [Andrews] sitting
astride Chism's back, joining and separating his clenched
fists in a tugging motion, apparently strangling Chism.
Sanders then saw [Andrews] go into the kitchen and choke
Brandon with a wire clothes hanger. When the two left the
apartment, [Andrews] gave Sanders some money, saying it was
all he had found.
In re Andrews, 52 P.3d 656, 658 (Cal. 2002)
(alterations, citations, and internal quotation marks
omitted). Andrews was eventually arrested, and he was charged
in June 1982.
trial, the jury heard Sanders's testimony as well as the
testimony of Carol Brooks. Brooks confirmed that Andrews and
Sanders visited her on the night of the murders and told her
about their plan to "get some money" from Wheeler.
People v. Andrews, 776 P.2d at 289. A week after the
incident, Sanders told her about his involvement in the
murders. Id. Then, a few weeks later, Andrews
confessed to her that he shot Wheeler, had sex with Brandon,
and took $300 during the robbery. Id.
prosecution also presented fingerprint evidence. Id.
Police experts analyzed 50 prints lifted from the apartment;
three prints belonged to Andrews. Id. One
fingerprint was found on a coffee table in Wheeler's
living room. Id. Two palm prints were found on the
kitchen floor, on either side of the spot where Brandon's
body was found, the left palm print being about a foot from
defense primarily focused on undermining Sanders's
credibility. Id. Two jail inmates who had been
incarcerated with Sanders testified. Id. They stated
that, while Sanders was incarcerated with them, he made
statements suggesting he planned to lie about the murders to
shift blame onto Andrews and away from himself. Id.
jury deliberated for three days before finding Andrews guilty
of murder. The jury also found three special
circumstances to be true. Two special circumstances related
to the offense conduct: (1) multiple murder and robbery
murder, based on the murders of Wheeler, Brandon, and Chism,
and the robbery of Wheeler, and (2) rape-murder, based on the
rape and murder of Brandon. In re Andrews, 52 P.3d
at 659. The third special circumstance was Andrews's
conviction for murder of a grocery store clerk in 1967.
penalty phase, both the prosecutor and defense counsel made
brief presentations. The prosecutor presented evidence
through a joint stipulation. Id. He noted that the
jury had already found that Andrews had been convicted of
murder in 1967. The parties also stipulated that Andrews had
been convicted of armed robbery in May 1968, convicted of
escape in November 1969, and convicted of robbery in June
1977. Id. The stipulation did not describe the facts
of the offenses underlying these additional convictions. The
prosecution also submitted photographs of the dead bodies of
Patrice Brandon and Ronald Chism as they were found by the
police in the apartment; the photos had been excluded at the
guilt phase on the ground they were unduly inflammatory.
Id. Finally, the parties stipulated that
Andrews's birth date was July 2, 1950. Id.
defense evidence consisted of two sworn statements that were
read to the jury. Id. The statements described facts
underlying the incident in September 1966 that formed the
basis of Andrews's 1967 conviction for murder. According
to the statements, Andrews and a 17-year-old companion, both
of whom were armed, attempted to rob a grocery store, and the
companion fired three shots, killing the grocery store clerk.
closing argument, defense counsel focused on mitigating
circumstances. He argued that Andrews's crimes were
unsophisticated, occurred several years apart, and all
involved the unexpected escalation of a planned robbery.
Id. He pointed out that Andrews was only 15 years
old at the time of the murder of the grocery store clerk, and
was not the shooter. Id. He portrayed Andrews's
conduct as less blameworthy because the murders occurred
while Andrews, Sanders, Wheeler, and Brandon were under the
influence of illegal drugs. Id. at 659-60. Finally,
he emphasized that other murderers had received life without
the possibility of parole despite the jury's finding of
special circumstances, and despite more blameworthy conduct.
Id. at 659. He pointed out that in this very case,
Sanders received a sentence of only 17 years to life.
Id. at 660. The prosecution made no rebuttal.
one day of deliberations, the jury returned a verdict
imposing the death penalty for each of the three murder
counts. The court sentenced Andrews to death on June 8, 1984.
The California Supreme Court affirmed the conviction and
sentence on direct appeal on August 3, 1989. People v.
Andrews, 776 P.2d at 285, 288.
filed petitions for state post-conviction relief, claiming,
among other things, that his counsel's assistance was
ineffective at the penalty phase because counsel did not
adequately investigate and present mitigating evidence. The
California Supreme Court summarily denied all of
Andrews's claims, except for his penalty phase
ineffective assistance of counsel claim.
California Supreme Court appointed a referee to take evidence
and make factual findings on six questions related to
Andrews's penalty phase ineffective assistance of counsel
claim. In re Andrews, 52 P.3d at 659. Under
California law, "[b]ecause appellate courts are
ill-suited to conduct evidentiary hearings, it is customary
for appellate courts to appoint a referee to take evidence
and make recommendations as to the resolution of disputed
factual issues." People v. Romero, 883 P.2d
388, 393 (Cal. 1994), as modified on denial of
reh'g (Jan. 5, 1995). While a referee's findings
on factual questions are not binding on the California
Supreme Court, they "are entitled to great weight when
supported by substantial evidence." In re
Johnson, 957 P.2d 299, 307 (Cal. 1998). The six
questions provided to the referee were:
1.What mitigating character and background evidence could
have been, but was not, presented by petitioner's trial
attorneys at his penalty trial?
2.What investigative steps by trial counsel, if any, would
have led to each such item of information?
3.What investigative steps, if any, did trial counsel take in
an effort to gather mitigating evidence to be presented at
the penalty phase?
4. What tactical or financial constraints, if any, weighed
against the investigation or presentation of mitigating
character and background evidence at the penalty phase?
5.What evidence, damaging to petitioner, but not presented by
the prosecution at the guilt or penalty trials, would likely
have been presented in rebuttal, if petitioner had introduced
any such mitigating character and background evidence?
6.Did petitioner himself request that either the
investigation or the presentation of mitigating evidence at
the penalty phase be curtailed in any manner? If so, what
specifically did petitioner request?
In re Andrews, 52 P.3d at 659.
referee received the testimony of more than 50 witnesses over
the span of six years. Id. at 660. As a threshold
matter, the referee pointed out two factors that the
California Supreme Court should take into account in
evaluating the information obtained in the reference hearing.
First, the referee acknowledged that "[t]he length of
time available to develop, expand and refine the depth of the
evidence presented at this reference hearing obviously
creates an artificial setting and this court notes that the
abundance and massiveness of the evidence presented could not
and would not have been the same in an original trial."
Id. at 660 n.2. Among other things,
"[s]trategic considerations alone would have undoubtedly
resulted in a greater refinement of the quality of evidence
presented." Id. Second, the referee's
consideration of counsel's work was hindered by the fact
that the lead counsel, Gerard Lenoir, died before the referee
conducted the hearing, and only the secondary counsel, Halvor
Miller, was available. Id. at 663 n.7. Miller could
not recall the full scope of Lenoir's investigation.
Id. at 663.
report, the referee provided one-paragraph summaries and
detailed factual findings in response to each question. The
California Supreme Court both summarized the referee's
findings and explained the weight it gave to these findings.
Id. at 660-65.
response to the first question (what mitigating character and
background evidence could have been, but was not, presented
by petitioner's trial attorneys at his penalty trial),
the referee identified three broad categories of mitigating
evidence that were available but not presented to the jury:
Andrews's family background; the conditions of his
confinement in a juvenile reform school and in the Alabama
prison system; and his mental health. Id. at 660. As
summarized in the court's opinion, the referee's
report found the following regarding Andrews's
background. When he was very young, Andrews's alcoholic
parents separated, and his mother left him to be raised by
his grandparents and aunt in a large family home with his
siblings and cousins, located in a poor, segregated
neighborhood of Mobile, Alabama. Id. The referee
described Andrews's grandfather as "loving,
benevolent, and responsible, " id., and the
court added that Andrews's mother regularly sent money
and clothing to her children and that Andrews's
upbringing and early family life were "relatively stable
and without serious privation or abuse, " id.
at 670. When Andrews was around nine or ten, his mother
returned home with children by another marriage, of whom
Andrews was jealous. Id. at 660, 670. Around that
time Andrews's grandfather, a "pivotal figure"
in his life, died. Id. at 660 (internal quotation
marks omitted). Andrews became withdrawn, skipped school, and
at age 14, committed car theft and was sent to a reform
school known as Mt. Meigs, formally the Alabama Industrial
School for Negro Children. Id.
the referee's report, the California Supreme Court stated
that "[a]t Mt. Meigs, petitioner encountered appalling
conditions." Id. According to the referee's
report, one witness described it as "a farming operation
and a penal colony for children, " while others
described "inhuman conditions, inadequate food and
clothing and severe beatings" with "sticks, broom
handles, tree limbs, and hoe handles . . . or fan
belts." Among other things, the referee found that
Andrews "was subjected to beatings, brutality,
inadequate conditions and sexual predators."
Id. at 661. Further, "[h]is passiveness and
small physique caused him to be a target of older, tougher
boys, from whom no protection or separation was
his release from Mt. Meigs, Andrews began to associate with
Freddie Square, an older boy with "manipulative and
criminal tendencies." Id. In September 1966,
three months after Andrews's release, Andrews and Square
entered a grocery store, drew guns, and announced that they
were conducting a robbery. Id. When "the store
clerk placed his hand down the front of his apron, "
Square shot the clerk, killing him. Id. Andrews
"acted as a lookout in the robbery, but played a more
active role when he and Square robbed a taxi driver during
their getaway, " and used the taxi as a getaway car.
Id. At the reference hearing, Harry Woodall, the
driver of the stolen taxi, testified that Andrews and Square
robbed him at gunpoint. Id. at 665. While pointing a
gun at Woodall, Andrews twice said, "Let's shoot
him." Id. Andrews and Square stole
Woodall's wallet, then ordered him out of the taxi and
fired three shots at him; Andrews fired at least two of the
shots. Id. In 1967, Andrews was convicted of murder
based on the grocery store incident, and in 1968, he was
convicted of armed robbery of the taxi driver. Id.
at 661 n.4. Just before he turned 18, he was committed to
Alabama state prison. Id. at 661. He escaped from
prison and was convicted of that offense in 1969.
Id. at 659. He remained in prison until 1976.
the referee's findings about conditions in the four
different prisons in which Andrews was confined over ten
years, the California Supreme Court stated:
[The referee] described conditions in these institutions as
abysmal, characterized by severe overcrowding, racial
segregation, substandard facilities, no separation of the
tougher inmates from younger or smaller inmates, constant
violence, the persistent threat of sexual assaults and the
constant presence of sexual pressure, the availability and
necessity of weapons by all inmates, and degrading conditions
in disciplinary modules. [Andrews] not only received beatings
but was also personally subjected to sexual assaults.
Id. at 661 (internal quotation marks omitted). The
referee stated that Andrews "was rarely the instigator
of violence, " was "the prey rather than the
predator" when he was involved, and was often a target
of violence due to his small stature. Id. at 662
(internal quotation marks omitted). He also "appeared to
adjust well when the structure permitted" and,
"when circumstances permitted, he tended to hold
positions of responsibility." Id. At the same
time, however, Andrews "was personally involved in
violence, including the stabbings of two inmates who had been
threatening him." Id. at 661 (internal
quotation marks and alterations omitted).
after his release from prison in 1976, Andrews engaged in an
attempted robbery of a laundry. Id. According to
testimony at the reference hearing:
Mobile Police Officer Pettis testified that on March 23,
1977, he responded to a robbery call. Entering the store from
which the call came, he and other officers saw [Andrews]
holding a crying young woman hostage with a cocked gun at her
head. He told the officers to leave and "continued to
repeat, 'Someone's going to get shot, I'm going
to shoot.'" The officers withdrew. Ultimately,
[Andrews] surrendered to the officers after releasing the
young woman and another woman whom he had also held hostage.
Id. at 665. Andrews was arrested for the robbery and
held in Mobile County Jail. Id. at 661. After a
failed attempt to escape from the jail, he succeeded in
escaping on his second try, and fled to California.
Id. at 661 & n.5.
California, Andrews met Debra Pickett, with whom he had a
stable relationship. Id. at 661. The couple had a
child, and Andrews held a job during this time. Id.
But by December 1979, Andrews had resumed using cocaine and
left his job and family. Id. Soon after, he
committed the three murders at issue here. Id.
referee also described the testimony from mental health
experts that could have been presented at the penalty phase.
Summarizing the referee's report, the California Supreme
Court noted that defense experts diagnosed Andrews with a
range of mental disorders, including attention deficit
disorder, post traumatic stress disorder (PTSD), and mild to
moderate organic brain impairment, in part due to drug use
and possibly due to a head injury in prison. Id. The
defense experts opined that Andrews's learning
disability, the adverse circumstances of his childhood, the
impact of the correctional systems, and the PTSD made his
commission of the murders and sexual assault more
understandable and less morally culpable. Id. at
661-62. The experts gave specific examples of how
Andrews's impairments and the brutal conditions of
incarceration made it difficult for him to avoid getting into
trouble with the law. Id. at 661-62, 670. For
example, one defense psychiatrist testified that Wheeler, one
of the three victims in the December 1979 murders, had called
Andrews a "faggot" a few days before the murders
occurred, and Andrews's PTSD would predispose him to
overreact to the slur. Id. at 680. The psychiatrist
concluded that Andrews was "affected by serious
emotional disturbance when he committed the murders."
California Supreme Court then recounted the referee's
findings on questions two, three, and four. These questions
addressed the investigative steps trial counsel took to
gather mitigating evidence for the penalty phase, steps the
trial counsel could have taken to do so, and the
constraints that weighed against the trial counsel
investigating or presenting mitigating character and
background evidence at the penalty phase. Id. at
662-64. According to the referee, trial counsel hired defense
investigators for the guilt phase, while the counsel
themselves did the investigative work for the penalty phase.
Id. at 663. The trial counsel took two trips to
Mobile, one in 1983 and another in 1984. On the first trip,
they spent a day searching court records for Andrews's
prior convictions and documents relating to his background.
Id. They also searched for relatives and potential
witnesses in Andrews's neighborhood. Id. On the
second trip, counsel obtained information about Andrews's
prior murder conviction at the county courthouse.
Id. Counsel also traveled to Pensacola, Florida,
where they interviewed Andrews's mother. Id.
During the course of the interview, they obtained information
that Andrews was a slow learner, that his grandparents raised
him, and that he started getting into trouble as a teenager.
Id. Miller remembered telling Andrews's mother
that if he obtained Andrews's permission to obtain
information from family members or other contacts, he or
Lenoir would contact her for further information.
California Supreme Court also summarized the referee's
findings about the constraints placed on trial counsel in
conducting their penalty phase investigation, though the
death of Lenoir limited this aspect of the referee's
investigation. Id. at 663-64. According to the
referee, there were tactical, rather than financial,
constraints. Id. Miller recalled the main tactical
constraint as "the adamancy of petitioner's
opposition to having his family, and in particular his
mother, testify at the trial." Id. at 664.
According to the referee, "Mr. Miller was very
consistent in his testimony regarding petitioner's
refusal to cooperate in this area, and this position is
supported circumstantially by statements made by petitioner
as well as testimony from the prosecutor." Id.
Miller stated that Andrews had threatened to disrupt the
proceedings if his directions were not followed, and both
counsel believed this threat was genuine. Id.
"Acceding to these wishes, " neither Miller nor
Lenoir "pursued a full investigation of petitioner's
background or family and never learned the names of family
members with one or two exceptions." Id.
addition to the constraints imposed by Andrews, the referee
found that counsel were concerned about the effects of using
prisoners as witnesses. Id. Miller doubted that
jurors would be impressed by the credibility and demeanor of
the prisoners, and he was concerned that calling prisoners as
witnesses would risk disclosure of Andrews's misconduct
in prison. Id. The referee found that Andrews had
been involved in two stabbings of other inmates and had
escaped from custodial facilities on two occasions.
Id. Further, the referee found that the inmates who
provided testimony at the reference hearing had
"substantial violent criminal records and these offenses
included a substantial number of escapes." Id.
Finally, Miller testified that he and Lenoir decided not to
present evidence about Andrews's upbringing, because the
house and neighborhood in which Andrews grew up resembled the
house and neighborhood in which Miller was raised, and so
counsel thought a "poverty-presentation" lacked
California Supreme Court also summarized the referee's
views on additional investigative steps that counsel could
have taken. Id. at 662-63. The referee found that
obtaining information regarding the circumstances of
Andrews's upbringing, the impact of the correctional
facilities in Alabama and Andrews's adult experiences,
and the psychiatric aspects of Andrews's history did not
call for "any extraordinary efforts beyond simple
persistence." Id. at 662. The referee believed
that Andrews's mother could have provided more
information about Andrews's upbringing and directed
counsel to other family members and acquaintances who could
have provided general information regarding schooling issues.
Id. Counsel could have obtained addresses and
information about additional witnesses through publicly
available documents or through word of mouth. Id.
The referee also believed that "[s]everal areas of
inquiry were available relating to petitioner's
experiences in the correctional system in Alabama."
Id. Counsel could have obtained prison records from
the juvenile and adult correctional systems and could have
contacted inmates referenced in those records. Id.
Or counsel could have conducted "standard legal research
of public records relating to lawsuits involving these
institutions." Id. While acknowledging that
"petitioner's cooperativeness was a significant
issue, " the referee found that counsel could have
developed the information presented at the reference hearing
"through outside sources in the absence of any
cooperation from the petitioner." Id. at 663.
addition, although there was "no significant written
history" in the area of mental health, and there was
little evidence of "family members having mental
impairments, " the referee found that counsel could have
appointed psychiatric experts. Id. at 662. The
referee acknowledged that "[a]ny such inquiry may not
necessarily have resulted in the availability of evidence of
the diagnoses of organic brain impairment, learning
disorders, or of post traumatic stress disorder."
Id. According to the referee, "[t]he quality of
standardized personality tests was not the same, the
knowledge of post traumatic stress disorder was in an infancy
stage, and the resulting diagnosis may not necessarily have
been favorable to the petitioner." Id. at
addressing question five (what evidence, damaging to
petitioner, but not presented by the prosecution at the guilt
or penalty trials, would likely have been presented in
rebuttal, if petitioner had introduced any such mitigating
character and background evidence), the referee found that
the prosecution's rebuttal presentation could have
included evidence about two of Andrews's prior
convictions. Id. at 664. First, the prosecutor could
have presented testimony from the taxi driver in the 1968
robbery, who would have testified he heard Andrews say
"[l]et's shoot him, " and then fired at least
two shots at him. Id. at 665. Second, the
prosecution could have informed the jury about Andrews's
attempt to rob a laundry business following his release from
prison in 1976, which involved holding two women hostage, one
with a gun to her head. Id. at 661, 665. The jury
had heard that Andrews was convicted of these offenses, but
it did not hear the facts on which the conviction was based;
the prosecutor could have introduced a complete description
of the underlying events as aggravating evidence, to show
Andrews's greater moral culpability for the rape and
triple-murder. Id. at 659, 664.
the referee determined that the prosecution could have called
its own mental health experts to rebut Andrews's
evidence. Id. at 665. The state could have presented
expert testimony that Andrews did not suffer from PTSD, but
rather suffered from antisocial personality disorder,
resented authority, and had a normal-range IQ of 93.
Id. A second state expert would have testified that
Andrews's ability to hold a job and maintain a stable
relationship with Debra Pickett before he committed the
murders strongly indicated that he had not suffered brain
damage. Id. In addition, the expert would have
testified that Andrews's "behavior on the night of
the murders showed planning and thought, and it was therefore
unlikely that petitioner was under the influence of PCP when
he committed the murders." Id.
in response to question six (did petitioner himself request
that either the investigation or the presentation of
mitigating evidence at the penalty phase be curtailed in any
manner, and, if so, what specifically did petitioner
request), the referee concluded that there was no doubt that
Andrews "adamantly" refused to allow counsel to
approach his mother and family or to have them testify.
Id. This conclusion was based on the trial records
and the consistent testimony of witnesses at the reference
hearing. Id. In response to specific questioning
from the trial court "regarding his reluctance to have
his mother called, " and in the face of the trial
court's advice that his mother's testimony would be
valuable, Andrews "was very precise in his response,
telling the judge that he fully understood and that this was
his choice and no one else's." Id.
(emphasis omitted). The referee further noted that the lead
counsel, Lenoir, "represented on the record at trial
that petitioner refused to have his mother called and that he
'had his reasons, ' which Mr. Lenoir did not wish to
disclose to the court." Id. The referee also
found that "petitioner went so far as to threaten to
disrupt the trial if his mother were called."
Id. Andrews's opposition to having counsel
involve his family was corroborated by his older sister and
uncontradicted by his mother. Id.
considering "the record of the hearing, the
referee's factual findings, and petitioner's original
trial, " the California Supreme Court concluded that
"petitioner received constitutionally adequate
representation, and any inadequacy did not result in
prejudice." Id. at 659.
reaching this conclusion, the court began by stating the
requirements for an ineffective assistance of counsel claim
under Strickland v. Washington, 466 U.S. 668 (1984).
First, the court stated that "[t]o prove a claim of
ineffective assistance of counsel at the penalty phase trial,
the petitioner must establish that counsel's performance
[(1)] did not meet an objective standard of reasonableness
under prevailing professional norms and [(2)] that he
suffered prejudice thereby." In re Andrews, 52
P.3d at 667 (internal quotation marks omitted).
first to the deficiency prong, the California Supreme Court
concluded that Andrews had not established that his
counsel's performance was defective. Its reasoning was as
follows. Under Strickland, "the Supreme Court
specifically addressed counsel's duty to investigate and
made clear courts should not equate effective assistance with
exhaustive investigation of potential mitigating
evidence." Id. at 668. Any judicial scrutiny
"must be highly deferential, " and courts must
avoid second guessing counsel's assistance and must
"eliminate the distorting effects of hindsight."
Id. at 667 (quoting Strickland, 466 U.S. at
689). Further, while "counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary, " the
Supreme Court made clear that "a particular decision not
to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of
deference to counsel's judgments." Id. at
668 (quoting Strickland, 466 U.S. at 690-91).
Moreover, "valid strategic choices are possible even
without extensive investigative efforts." Id.
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Finally, "[t]he reasonableness of counsel's actions
may be determined or substantially influenced by the
defendant's own statements or actions, " and may be
"based, quite properly, on informed strategic choices
made by the defendant and on information supplied by the
defendant." Id. (quoting Strickland,
466 U.S. at 691).
this deferential standard in light of the evidence developed
by the referee, the California Supreme Court concluded that
"counsel's decision not to mount an all-out
investigation into petitioner's background in search of
mitigating circumstances was supported by reasonable
professional judgment." Id. at 669 (quoting
Burger, 483 U.S. at 794-95).
the California Supreme Court found that counsel could have
reasonably decided not to pursue information from
Andrews's family in light of Andrews's decision to
curtail such an investigation. The court noted that while
"the referee found that counsel could have discovered
the mitigating evidence presented at the reference hearing
with 'simple persistence, '" the evidence showed
that Andrews limited the investigation counsel could
undertake by insisting that counsel not involve his family.
Id. at 668. Counsel were within the range of
professional competence in complying with Andrews's
wishes, because under California law, "an attorney
representing a defendant at the penalty phase of a capital
case is not required to present potentially mitigating
evidence over the defendant's objections."
Id. (quoting People v. Kirkpatrick, 874
P.2d 248, 262 (Cal. 1994)).
to the extent counsel interviewed Andrews's mother and
attempted to contact family members despite Andrews's
objection, the court found that counsel could have reasonably
concluded that the information they obtained was not
powerfully mitigating. Id. at 670. Andrews's
mother "did not abandon him, but left him with an
extended family including his 'loving and
responsible' grandfather, regularly sent money and
clothing to her children, and returned several years later to
remain in the family home." Id. The testimony
from family members generally showed Andrews's early
upbringing and family life "to be relatively stable and
without serious privation or abuse. All but one of his
siblings completed high school, and only one had a minor
brush with the law." Id. Counsel's
preliminary investigation showed that Andrews's childhood
was not mitigating: "Miller viewed petitioner's
childhood surroundings as unimpressive because he found them
comparable to his own." Id. at 673. Andrews
"did not suffer a home environment that would place his
crimes in any understandable context or explain his resorting
to crime every time he was released or escaped from
prison." Id. at 670. Moreover, his stable
conditions in California could have led the jury to conclude
that Andrews's "abandonment of his own son to pursue
a cocaine habit and his former criminal ways would belie the
suggestion he merited sympathy due to his parents'
drinking and abandonment and his grandfather's
death." Id. at 671. "Under these
circumstances, counsel could reasonably reject a background
mitigation strategy in favor of an alternate basis to plead
for petitioner's life." Id. at 673.
the California Supreme Court found that counsel could have
reasonably decided not to develop evidence regarding the
conditions of Andrews's confinement. Id. at
670-71. Relying in part on the referee's
findings, the California Supreme Court noted that while the
conditions in which Andrews had been incarcerated
"leaves no doubt petitioner endured horrifically
demeaning and degrading circumstances, " counsel could
reasonably conclude that introducing evidence about these
conditions from former inmates could have "proved a
double-edged sword, " because the jury could have had
negative impressions of the witnesses and the evidence that
would color their views of Andrews. Id. The
witnesses testifying to the conditions under which Andrews
was incarcerated included "one death row inmate, with
serious felony records for murder, rape, and armed robbery,
" as well as many inmates who "had themselves
engaged in brutality while in prison and escaped with some
frequency." Id. at 671. The jury could have
drawn an "unfavorable comparison" with Andrews in
both cases, and "[r]ather than engendering sympathy, the
evidence could well have reinforced an impression of him as a
person who had become desensitized and inured to violence and
disrespect for the law." Id. Moreover, the
witnesses' "criminal histories would automatically
subject them to impeachment." Id. The court
also found that hearing such witnesses testify about brutal
conditions in Alabama would "raise the question of why
petitioner so readily resorted to crime when he escaped the
brutal and predatory conditions in Alabama and relocated to
California, where he found work and started a family."
Id. Counsel could also reasonably conclude that
having inmates describe the Alabama prison conditions would
"potentially open the door to additional evidence of
petitioner's criminal past." Id. at
Among other things, "evidence of prison conditions could
have led to the jury's learning of petitioner's
second escape from custody, " which could have
"created a danger defense counsel reasonably sought to
avoid." Id. At 669.
the California Supreme Court found that counsel could have
reasonably decided not to introduce expert testimony on
Andrews's mental health because "[t]he prosecutor
could have exploited the testimony of the mental health
experts to petitioner's disadvantage." Id.
at 670. The court noted that one of the experts at the
reference hearing testified "that convicts tend to react
with rage to perceived insults, behavior they find difficult
to shed even when discharged, " and while this may have
explained Andrews's actions, "it does not
necessarily create a sympathetic impression" because
"[t]he jury could just as readily infer petitioner was
unable to control lethal impulses on the slightest
provocation." Id. Moreover, there would have
been a battle of the experts regarding whether Andrews had
suffered any brain damage at all. Id. And "[a]s
the reference hearing demonstrated, a mental health penalty
defense would also have given the prosecution several
opportunities to repeat the circumstances of the crime as
well as petitioner's past criminality in questioning the
experts on both direct and cross-examination as to whether
petitioner exhibited an antisocial personality rather than
some form of mental impairment." Id.
the California Supreme Court concluded that counsel had been
reasonable in adopting the strategic approach of minimizing
Andrews's "culpability by circumscribing his
background and mitigating his criminal responsibility."
Id. at 669. In implementing this strategy, counsel
portrayed Andrews as "a follower rather than violently
antisocial" and "urged the jury to consider in
mitigation the fact that others who had committed more
heinous multiple murders had been sentenced to life without
possibility of parole and that [Andrews's co-defendant]
received a comparatively lighter sentence."
Id. According to the California Supreme Court,
this approach "not only presented a reasonable case for
sparing petitioner's life under the circumstances, but
foreclosed the introduction of substantial aggravating
evidence in rebuttal or on cross-examination that could have
undermined the defense by depicting petitioner as aggressive
and desensitized to violence." Id. (citation
these valid reasons for not pursuing Andrews's
background, and the fact that "a lengthy presentation of
a broad range of witnesses describing in detail various
aspects of petitioner's background" would "have
been atypical for a penalty phase defense" at the time
of the trial, id., the court concluded that
"counsel's strategic decision to limit the scope of
their investigation of mitigating background evidence and not
to present such evidence at the penalty phase came within
'the wide range of reasonable professional assistance,
'" id. at 671 (quoting Strickland,
466 U.S. at 689).
California Supreme Court next confirmed that this conclusion
was consistent with then clearly established Supreme Court
precedent, Bell v. Cone, 535 U.S. 685 (2002),
Williams v. Taylor, 529 U.S. 362 (2000), and
Burger v. Kemp, 483 U.S. 776 (1987). The court
provided the following reasoning. In Burger, the
Supreme Court held that counsel was not deficient even though
he declined to present evidence of the defendant's
neglectful, violent family or his mental and emotional
deficiencies, because: (1) introducing such background
evidence raised a risk that aggravating information would be
introduced, and (2) counsel had adopted the reasonable
strategy of minimizing his client's culpability in light
of the co-defendant's dominance. Id. at 672-73
(citing Burger, 483 U.S. at 791-94). The California
Supreme Court determined that Andrews's counsel had even
more compelling justifications for not introducing background
evidence than Burger's counsel, given that Burger endured
a worse childhood than Andrews, was a teenager at the time of
the murder, had committed only one murder, and was not
primarily responsible for the decision to kill. Id.
the California Supreme Court turned to Bell v. Cone,
535 U.S. 685 (2002). In re Andrews, 52 P.3d at 673.
In Bell, counsel provided no penalty phase evidence
at all and waived closing argument. Id. (citing
Bell, 535 U.S. at 685). The Supreme Court concluded
that counsel's strategy was reasonable, because evidence
of defendant's normal childhood might have been perceived
negatively by the jury, and because counsel's decision to
waive closing argument prevented the lead prosecutor from
depicting the defendant as a heartless killer. Id.
(citing Bell, 535 U.S. at 699-702). The California
Supreme Court noted that the counsel's strategy in
Bell was similar to the strategy of Andrews's
counsel: by providing little background information and
giving only a brief closing argument, counsel could reduce
damaging rebuttal evidence. Id. at 673-74.
the California Supreme Court considered Williams v.
Taylor, 529 U.S. 362 (2000), which held that counsel
rendered ineffective assistance of counsel by failing to
investigate defendant's nightmarish childhood, borderline
mental retardation, and model behavior in prison.
Id. at 674 (citing Williams, 529 U.S. at
395-96). The California Supreme Court distinguished this
case, noting that counsel's failure in Williams
to investigate was not based on strategy, as in Andrews's
case, but due to counsel's erroneous understanding of the
law. Id. The state court also noted that in
Williams, there was no tactical reason to withhold
evidence and there was virtually no risk of damaging
rebuttal, as in this case. Id. at 674-75.
California Supreme Court therefore concluded that
then-existing Supreme Court precedent was consistent with its
conclusion that Andrews had not established that "in
light of all the circumstances, the identified acts or
omissions of counsel were outside the wide range of
professionally competent assistance." Id. at
668 (internal quotation marks and alterations
California Supreme Court next turned to the prejudice prong.
As explained in greater detail below, the California Supreme
Court determined, based on its review of the evidence adduced
at the reference hearing and the rebuttal evidence that could
have been introduced during the penalty phase, that "it
is not 'reasonabl[y] proba[ble]' petitioner was
prejudiced by counsel's rejection of a defense premised
on evidence of petitioner's upbringing, the Alabama
prison conditions he experienced, and his mental health in
light of the circumstances of the crimes, given the ambiguous
nature of some mitigating evidence and the substantial
potential for damaging rebuttal." Id. at 671
(quoting Strickland, 466 U.S. at 694).
considered the record of the hearing, the referee's
factual findings, and petitioner's original trial, "
the California Supreme Court concluded that Andrews
"received constitutionally adequate representation, and
any inadequacy did not result in prejudice."
Id. at 659. Accordingly, the California Supreme
Court denied Andrews's state habeas petition.
Id. at 676.
the California Supreme Court rejected Andrews's claims,
Andrews filed a habeas petition in federal district court.
His amended petition raised 32 claims, including multiple
lengthy ruling on the merits of the petition, the district
court denied 31 claims, but granted relief on Andrews's
claim that his counsel were ineffective at the penalty phase
of his trial for failing to investigate and present
additional mitigating evidence. In reaching this conclusion,
the district court did not apply the standard mandated by the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Instead of determining whether the California Supreme
Court's rejection of this ineffective assistance of
counsel claim was "contrary to, or involved an
unreasonable application of" Strickland, as
required by 28 U.S.C. § 2254(d)(1), the district court
reviewed the evidence produced by the referee on this issue
de novo and concluded that counsel's "failure to
adequately investigate and discover evidence of a life filled
with abuse and privation is sufficient to establish prejudice
under Strickland." Cf. Richter, 562
U.S. at 101 (criticizing the Ninth Circuit's review of a
state court opinion under § 2254(d)(1) because it failed
to give the deference due under AEDPA). The court granted
Andrews's petition on this ineffective assistance of
counsel claim, denied Andrews's other 31 claims, and
granted a certificate of appealability (COA) on Andrews's
claim that California's lethal injection protocol
violates the Eighth Amendment (Claim 25).
timely appealed, challenging the district court's denials
of Claim 25 and several uncertified claims. The state
cross-appealed the district court's grant of relief on
Andrews's ineffective assistance of counsel claim. After
briefing on his appeal was complete, Andrews moved for
permission to brief an additional uncertified claim for
habeas relief on the ground that it would violate the Eighth
Amendment to execute him after a long delay from the date of
his sentencing. We granted the motion.
review a district court's grant or denial of habeas
relief de novo. Moses v. Payne, 555 F.3d 742, 750
(9th Cir. 2009).
applies to Andrews's federal habeas petition, which was
filed after April 24, 1996. See Lindh v. Murphy, 521
U.S. 320, 322, 336 (1997). Under AEDPA, a court may not grant
a habeas petition "with respect to any claim that was
adjudicated on the merits in State court proceedings, "
28 U.S.C. § 2254(d), unless the state court's
judgment "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States, " § 2254(d)(1), or "was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,
" § 2254(d)(2).
§ 2254(d)(1), the relevant Supreme Court precedent
includes only the decisions in existence "as of the time
the state court renders its decision." Greene v.
Fisher, 132 S.Ct. 38, 44 (2011) (internal quotation
marks and emphasis omitted); see also Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) ("State-court
decisions are measured against [the Supreme] Court's
precedents as of the time the state court renders its
decision." (internal quotation marks omitted)). Thus,
Supreme Court cases decided after the state court's
decision are not clearly established precedent under §
2254(d)(1) for purposes of evaluating whether the state court
reasonably applied Supreme Court precedent.
Supreme Court decision is not clearly established law under
§ 2254(d)(1) unless it "squarely addresses the
issue" in the case before the state court, Wright v.
Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam), or
"establish[es] a legal principle that 'clearly
extends'" to the case before the state court,
Moses, 555 F.3d at 754 (alterations omitted)
(quoting Van Patten, 552 U.S. at 123); see also
Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (holding
that Supreme Court cases evaluating state-sponsored courtroom
conduct were not clearly established law governing private
actor courtroom conduct). "[W]hen a state court may draw
a principled distinction between the case before it and
Supreme Court caselaw, the law is not clearly established for
the state-court case." Murdoch, 609 F.3d at
991. "[I]f a habeas court must extend a rationale before
it can apply to the facts at hand, then by definition the
rationale was not clearly established at the time of the
state-court decision." White v. Woodall, 134
S.Ct. 1697, 1706 (2014) (internal quotation marks omitted). A
principle is clearly ...