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Andrews v. Davis

United States Court of Appeals, Ninth Circuit

August 1, 2017

Jesse James Andrews, Petitioner-Appellant,
Ron Davis, Warden, Respondent-Appellee. Jesse James Andrews, Petitioner-Appellee,
Ron Davis, Warden, Respondent-Appellant.

          Argued and Submitted January 12, 2015-Pasadena, California

         Appeal 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 Petitioner-Appellant/Cross-Appellee.

          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 Respondent-Appellee/Cross-Appellant.

          Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges.


         Habeas Corpus/Death Penalty

         The 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.

         The 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.

         The 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 the claim.

         The 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.

         The panel held that the district court did not abuse its discretion in denying Andrews's motion for an evidentiary hearing.

         Dissenting 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.


         The 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 filed.


          IKUTA, Circuit Judge.

         Jesse 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.



         On 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.


         Approximately 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 follows:

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 Wheeler.
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 kitchen.
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.

         At 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.

         The 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 her body.

         The 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.

         The jury deliberated for three days before finding Andrews guilty of murder.[1] 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. Id.

         At the 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.

         The 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. Id.

         In his 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.

         After 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.


         Andrews 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.


         The 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.

         The 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.

         In her 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.

         In 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.

         Summarizing 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 provided." Id.

         After 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.

         Summarizing 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).

         Shortly 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.

         In 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.

         The 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." Id.

         The 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. Id.

         The 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.

         In 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 viability. Id.

         The 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.

         In 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 662-63.

         In 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.

         Further, 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.

         Finally, 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.[2] Id.


         After 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.

         In 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).

         Turning 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).

         Applying 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).

         First, 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)).[3]

         Further, 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.

         Second, 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.[4] 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 673.[5] 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.[6]

         Third, 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.

         Finally, 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.[7] 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 omitted).[8]

         Given 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).


         The 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. at 673.

         Next, 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.

         Finally, 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.

         The 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 omitted).[9]


         The 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).

         "Having 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.


         After 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 subclaims.

         In a 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).

         Andrews 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.


         We review a district court's grant or denial of habeas relief de novo. Moses v. Payne, 555 F.3d 742, 750 (9th Cir. 2009).


         AEDPA 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).[10]

         Under § 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.

         A 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 ...

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