Jesse Andrews v. Kevin Chappell

therefore, not control Chavaria-Angel, is divisibility analy- where circumstance n ling here. “straightforward” because is sis (or single 475.992(l)(a) out a ‘indi- § “sets summarize, 475.992(l)(a) § is over- To visible’) single, define of elements set “delivery,” in its definition broad Mathis, 2248. Solicita- crime.” S.Ct. may not categorical approach the modified statutory alter- an enumerated tion is not 475.992(l)(a) § is indi- applied because is, in- attempt but delivery native to respect an “at- whether with ' visible meaning stead, included within accomplished solicitation. tempt” Sargent, 822 See alternatives. those listed Therefore, we hold a conviction deliver- is therefore indi- The statute P.2d at 728. 475.992(l)(a) § is not an ing heroin under an “at- respect whether visible with felony. petition aggravated Sandoval’s by solicitation. accomplished tempt” is granted. previ argues government we AND REMANDED. GRANTED 475.992(l)(a) qualify as § ously held felony the modified aggravated an under citing United States

categorical approach, Chavaria-Angel, 1177-78

v. 323 F.3d ease, 2003).

(9th we affirmed Cir. de

the district court’s conclusion delivery offense

fendant’s 475.992 aggravated was an a controlled substance ANDREWS, Petitioner- James Jesse of uncertified felony on a review based Appellant, See. id. Oregon state records. v. However, rested 1177-78. decision Descamps, rejected the method DAVIS, Warden, Respondent- Ron 2286-91, applied Appellee. per approach without categorical modified Jesse James Petitioner- analysis. Cha forming any divisibility See Appellee, varia-Angel, at 1177-78. The 323 F.3d on what the focused analysis improperly actually opposed did defendant' Davis, Warden, Respondent- Ron was convict crime of which the defendant Appellant. (focusing on the evidence Compare ed. id.

supporting finding the defendant sold 09-99012,No. 09-99013 No. substances), Descamps, _ controlled Appeals, States Court United (calling this method S.Ct. at 2287 Ninth Circuit. approach, which''turns “modified factual” inquiry into evi an “elements-based January Argued and Submitted one”). opinion dence-based did 2015—Pasadena, California convicting jury, when consider whether a August Filed delivery of a controlled sub defendant stance, unanimously choose must between including delivery,

alternative methods Chavaria-Angel, 323 F.3d

solicitation. See require Descamps and Mathis

at 1177-78. Mathis, 136 inquiries.

these

2256-57; at 2286-91. Descamps, 133 S.Ct. - An- appeal; deny -and certified for expand motion to the certificate

drews’s claims. to include appealability uncertified (argued), Law Office Michael Burt grant of district court’s the' We reverse California, Francisco, Burt, San Michael claim on the ineffective assistance - relief Petitioner-Appellant/Cross-Appellee. for 2254(d)(1), because, § under U.S.C. J. (argued), Sarah Costello Xiomara Supreme Court did not unrea- Markovich, and A. Farhat, Seigle Shira precedent sonably apply Court' Attorneys Deputy Gener- Hayward, Scott preju- concluding that Andrews was Winters, Assistant al; E. Senior Lance by his performance any deficient diced General; 'Borjon, H. Keith Su- Attorney counsel. Genpral; Dane Attorney pervising Deputy Engler, Chief and A. R. Gillette Gerald I General; C. Attorneys Edward Assistant J; General; DuMont, Michael Solicitor A General; James Mongan, Deputy Solicitor 9,1979, police On December were called II, Depu- Supervising Bilderback William they Angeles apartment, to a Los where General; of the Attor- ty Attorney Office California; victims. General, found the bodies murder Angeles, three ney Los People Respondent-Appellee/Cross-Appellant. Cal.3d Cal. (1989). Rptr. IKUTA, N. S. Before: SANDRA victims, Wheeler, Preston murder were SMITH, H. and MARY RANDY Bran apartment, in the Patrice who lived MURGUIA, Judges. Circuit Chism. Id. The California don, Ronald murder Court described the by Judge MURGUIA Dissent scene as follows: ORDER been chest had stabbed Wheeler in. 5, 2015, opinion August filed shot neck at close times and six. reported 798 F.3d withdrawn. range either .357-caliber with .32- withdrawn, opinion court’s- Because the bruised, His were weapon. and head face for re- appellant/cross appellee’s petition slashed, his face been with rehearing hearing petition en banc knife. and Chism had been Brandon opinion A be filed superseding is moot. will strangled hangers. coat with wire Their concurrently peti- Further order. bruised, extensively. fаces were Chism’s rehearing for re- petitions tions for dilated, extremely anus was Brandon’s banc hearing en filed. - torn, bruised,, reddened and consistent penis shortly insertion of with the OPINION her death. There also red- before IKUTA, Judge: Circuit opening of her vagina, ness around appeals Jesse James vaginal samples pres- revealed the of all but one of the district court’s denial semen and All spermatozoa. ence of petition for a writ claims raised foot. victims were hand and three bound corpus habeas under 28 U.S.C. cross-appeals the district court’s The state later, year ar- Approximately police claim that his grant of relief Andrews’s Charles Sanders connection with rested ineffective at the counsel’s assistance was Id. Sanders entered into a the murders. his trial. phase capital murder agreement, pleaded guilty he unripe plea the claim the district which dismiss as We murder, degree three counts second attic, climbed into the attic. While in the enhancement, gun agreed admitted and Sanders shots. heard two When he came cooperate prosecution, with the in ex- down, him told he [Andrews] had shot change years for a sentence of 17 life Wheeler because the latter had tried to Id. prison. During interrogation by his jump out the window. Sanders asked if police, gave tape-recorded Sanders both a Wheeler was responded dead. [Andrews] and written statement. Id. He also testi- he ‘standing right up’ on Wheeler trial, fied at Andrews’s and described the when he gun.... fired the When Sand- crime as follows: Brandon, ers asked about re- [Andrews] Sanders testified that he and [Andrews] plied he had killed her before leaving Wheeler, a plan drug devised to rob the kitchen. dealer. [Andrews] armed himself with a While [Andrews] and Sanders were magnum gave .357 and Sanders a .38- or cleaning up apartment, 'the Ronald .32-caliber automatic. evening On the Chism knocked on the door and if asked murders, Mend, they visited their everything right. was all said [Andrews] Brooks, Carol who lived the same home Wheeler was and him in- invited Wheeler, apartment building as side. then hit [Andrews] Chism then apartment. went Wheeler’s head, him up, tied and took him into the Wheeler, response knocking, to their bathroom. Sanders saw sit- [Andrews] [Andrews],, apparently who knew let inside, ting back, joining astride Chism’s Aso apartment them in. was a (Patrice separating his Brandon). fists clenched woman tugging Ater smok- motion, Wheeler, apparently marijuana strangling some Chism. [An- guns. go and Sanders then drews] drew their Sanders saw into the [Andrews] Sanders tied Wheeler and Brandon with kitchen and choke Brandon with a wire socks, put pair gloves, belts and on a hanger. clothes When the two left the n began apartment to search the apartment, gave [Andrews] Sanders drugs money. Except pow- some money, saying some it was all he had appeared-to der on a saucer which found. cocaine, the search was unsuccessful. Andrews, In re 28 Cal.4th Cal. Wheeler, questioned [Andrews] who de- (alter Rptr.2d (2002) 52 P.3d having any drugs money. nied Saying , ations, citations, quotation and internal talk, he would make [Andrews] Brandon omitted). marks eventually Andrews was dragged her into the kitchen and closed arrested, charged and he in June 1982. the door. Sanders living remained trial, At jury testi heard Sanders’s room with Wheeler. mony testimony as well as’ the of Carol hitting heard Bran- [Andrews] Sanders Brooks. Brooks confirmed Andrews though don and later heard sounds as night her on Sanders visited they having were sex. When [Andrews] plan murders her about their and told came out of kitchen shortly thereaf- People money’,’ some “get Wheeler. ter, pants saw Sanders Brandon’s Cal.Rptr. P.2d at her ankles. around incident, 289. A after the week Sanders put gun his [Andrews] in Wheeler’s told her in the about mur involvement mouth. He to kill threatened Wheeler Then, later, Id. ders. few weeks and Brandon unless Wheeler revealed Wheeler, to her that he shot confessed drugs. location of said Wheeler attic, Brandon, during ‘dope’ pointed was in the sex with and took $300 trap leading out a up robbеry. door to it. Sanders prose- The finger- ing these additional convictions. presented

The also prosecution analyzed experts Id. Police of the print photographs cution- also evidence. submitted apartment; the three prints lifted from Ron- of Patrice Brandon and dead bodies fin- Id. One belonged to Andrews. prints police they ald Chism were found as in table coffee gerprint found was been apartment; photos in had prints palm Id. Two living room. Wheeler’s guilt phase ground on the excluded at floor, were, on either found on the kitchen they unduly inflammatory. Id. Final- were body was spot of the Brandon’s side where ly, parties that Andrews’s stipulated found, print about a palm being the left 2,1950. July birth date was Id. (cid:127) body. foot from her of The evidence consisted two defense under- primarily .on The defense focused that read sworn statements were jail mining credibility. Id. Two Sanders’s jury. Id. The facts statements described with been incarcerated inmates who had underlying September the incident that, They Id. stated testified. Sanders the basis of Andrews’s that formed them, Sanders was incarcerated while According to the conviction murder. suggesting planned made statements he he statements, 17-year-old Andrews to shift blame to lie about the murders armed, companion, both of were at- from himself. Id. whom away onto Andrews and store, tempted to and the grocery rob days for three be- The deliberated jury shots, companion- killing fired three of finding guilty murder.1 fore Andrews grocery store clerk. Id. circum- special also three The found jury special circum- stances be true. Two closing argument, defense counsel (1) the offense conduct: stances related’to He focused on circumstances. murder, robbery multiple murder and crimes were unso Andrews’s arguecj Wheeler, of Bran- on the murders baséd apart, phisticated, years occurred several Chism, don, robbery of Wheel- and the unexpected escalation all involved (2) er, rape on the rape-murder, based out planned robbery. pointed of. a Id. He re of Brandon. In and murder only years old at the 473, 52 at 659. Cal.Rptr.2d P.3d The grocery of store time murder the. special third circumstance was clerk, He not the Id. and was shooter. grocery conviction for of a store murder less portrayed conduct clerk in Id. oc blameworthy the murders because penalty phase, prosecu- At the both the Wheeler, Andrews, Sanders, curred while tor brief presen- and defense counsel made and Brandon were under influence prosecutor tations. The Id., illegal drugs. through joint stipulation. Id. He noted emphasized Finally, at 659-60. he jury already An- had found life other murderers had received drews convicted been murder parole despite possibility without parties An- stipulated also circumstances, jury’s finding special drews had been convicted of rob- armed despite blameworthy more conduct. May 1968, bery escape convicted pointed 52 P.3d 659-60. He robbery November and convicted case, very that in this out Sanders received stipulation June 1977. Id. did years to underly- only describe the of the offenses life. Id. facts sentence trial, 1. Andrews his second first convicted after tri- al, jury because a verdict in failed reach

1005 659-60. prosecution P.3d at The 1. What mitigating character and back- no rebuttal. made ground been, evidence could have but not, presented by petitioner’s trial day deliberations, of After one the jury attorneys penalty at his trial? imposing returned a pen- verdict the death- 2. investigative What alty steps for of trial by each the three coun- murder counts. sel, if any, would have The court to led to each sentenced death such on 8, item of information? June 1984. The Supreme California Court affirmed the conviction and sentence investigative 3. What steps, if any, did 3, on on appeal August direct People trial counsel take in gather an effort Andrews, v. Cal.Rptr. 583, 260 776 P.2d mitigating evidence be presented 285, 288. penalty phase? constraints, What tactical or financial B any, if weighed against investigation petitions post- Andrews filed for- state- or presentation of character relief, claiming, conviction among, other background evidence at penalty things, that his counsel’s assistance phase? ineffective at the phase penalty because evidence, 5. What damaging petition- counsel not adequately investigate did er, presented but not prosecution present mitigating evidence. The Califor- guilt trials, or penalty likely would nia summarily of denied all rebuttal, presented have been if peti- claims, except tioner any such mitigat- introduced phase ineffective assistance ing character background evidence? claim. petitioner 6. Did himself request investigation either the or presenta- n —4 tion of mitigating evidence at penal- appointed California ty phase be curtailed manner? If to take referee and make factu so, specifically what petitioner did re- findings al on questions six related to An quest? penalty phase drews’s ineffective assis Andrews, In re Cal.Rptr.2d 124 tance counsel claim. In re P.3d at 659. Cal.Rptr.2d 52 P.3d at 659. Under The referee testimony received the law, “[bjecause California appellate courts more than span witnesses over the are ill-suited evidentiary conduct hear years. 124 Cal.Rptr.2d six P.3d ings, it is customary appellate courts to matter, at 660. As a threshold the referee appoint a referee take evidence and pointed out two factors that the California make as to recommendations the resolu Supreme Court into should take account in of disputed tion People factual issues.” evaluating the information obtained Romero, Cal.Rptr.2d 270, Cal.4th First, hearing. ac reference referee (1994), 883 P.2d on modified (Jan. length 5, 1995). knowledged “[t]he time reh’g denial While a develop, expand available findings and refine questions referee’s on factual are depth of presented the evidence binding Court, they hearing obviously reference great weight “are creates ar entitled to an supported setting when tificial by substantial and this evidence.” court notes that the Johnson, In re 18 Cal.4th Cal. abundance evi massiveness (1998). Rptr.2d 957 P.2d dence questions provided six to the referee were: have been the same in original trial.” “relatively early family n.2. life stable at 660 were Cal.Rptr.2d P.3d

Id. 124 abuse,” id. things, “[s]trategic privation consider serious Among without other undoubtedly re When ations .alone would .670. the.quali ten, refinement greater in a moth sulted .or his was around nine Andrews Second, Id. presented.” ty by home another er returned with .children work consideration counsel’s referee’s jealous. marriage, of Andrews was whom fact that lead hindered was at Cal.Rptr.2d Id. 124 P.3d Lenoir, counsel, died before the Gerard grandfa 670. Around that time Andrews’s hearing,. only and conducted referee life, ther, “pivotal figure” in his died. Id. a Miller, counsel, was secondary Halvor (inter at 660 Cal.Rptr.2d P.3d Cal.Rptr.2d 52 P.3d available. Id. omitted). Andrews be quotation nal marks full Could recall the 663 n.7. Miller school, withdrawn, skipped came and investigation. Id. Cal. Lenoir’s scope of car theft and was sent age committed at 663. 52 P.3d Rptr.2d Meigs, Mt. to a school known as reform one- provided referee report, In her Industrial School formally the Alabama detailed summaries and factual paragraph Negro Id. Children. question.

findings response each Summarizing report, the referee’s Court both summa Supreme. California Supreme' “[a]t Court statéd that findings explained and rized the referee’s appall- Meigs, petitioner Mt. encountered findings. Id. gave it to these weight According Id. the refer- conditions'.” 473, 52 P.3d at 660-65. Cal.Rptr.2d “a report, one witness described as ee’s (what question first response to the colony farming penal and a operation background and evi mitigating character children,” “inhuman while others described not, been, pre but was dence could conditions, inadequate clothing and food attorneys trial at his petitioner’s sented by “sticks, broom beatings” with and severe trial), three the referee identified handles, limbs, handles ... or tree and hoe categories broad things, the referee Among fan belts.” other were available but subjected to found that" Andrews “was background; family jury: Andrews’s beatings, inadequate conditions brutality, in juve of his confinement the conditions predators.” Cal.Rptr.2d sexual Id. and and the Alabama nile reform school Further, passive- “[h]is P.3d his mental health. Id. prison system; and him to physique small caused ness and 473, 52 P.3d at As Cal.Rptr.2d older, from target tougher boys, whom opinion, the in the court’s ref summarized protection separation provided.” regarding following found the report eree’s Id. background. very When he was Andrews’s An- Meigs, After his release Mt.. sepa young, parents alcoholic with began associate Freddie drews rated, his mother left him to be raised and boy “manipulative Square, older large in a grandparents and aunt by his September Id. In and criminal tendencies.” cousins, siblings his family home with months re- three after Andrews’s segregated neighborhood poor, in a located Mobile,' n Alabama; lease, gro- Square entered a Andrews and Id. de The referee store, guns, and cery announced drew grandfather “loving, scribed Andrews’s conducting robbery. Id. they were When id., benevolent, responsible,” his hand down the placed “the store clerk regu mother added clerk, Square shot the clothing apron,” chil front his larly money and to her sent as a look- killing him. Id. Andrews “acted upbringing and and that Andrews’s dren robbery, played violence,” out but a more the instigator of prey “the Square active role when he and robbed rather than predator” when- he was taxi during getaway,” driver their involved, and was often a target of violence getaway used the taxi as At car. due small stature. Id. 124 Cal. Woodall, hearing, reference Harry Rptr.2d (internal 52 P.3d at 662 quo taxi, driver the stolen that An testified omitted). tation marks He “appeared also Square drews gunpoint. robbed him at adjust well when the permit structure Id. 124 and, ted” “when permitted, circumstances pointing Woodall, a gun While he positions tended to hold of responsibili said, twice “Let’s shoot him.” Id. Andrews ty.”-- time, Id. At however, the same An Square wallet, stole Woodall’s then personally violence, drews “was in involved him out of ordered the taxi and fired three including stabbings the of two inmates who him; shots Andrews at least two of fired threatening- had been him.” Id. 124 Cal. 1967, the shots. Id. In Andrews was con 473, Rptr.2d (internal 52 at 661 'quo P.3d victed grocery murder based on the omitted). tation marks and alterations incident, 1968, store in and he convict Shortly after his prison release from in robbery ed armed of the taxi driver. Id. 1976, engaged attempted in' an 473, Cal.Rptr.2d 124 52 at 661 P.3d n.4. robbery of laundry. a' According Id. to Just before he turned he was commit testimony at the hearing: reference to ted Alabama prison. Id. 124 Cal. Mobile Police Officer Pettis testified Rptr.2d escaped P.3d at He 661. 23,1977, that on March responded he prison and was convicted that of robbery Entering the store from call.. in 1969. Cal.Rptr.2d fense Id. 124 came, which the call he and other offi- P.3d at prison 659. He in remained until [Andrews], cers saw holding a crying 1976. young hostage woman with a gun cocked Summarizing findings referee’s at her head. He told the officers to leave about conditions in four pris- different repeat, and “continued to go- ‘Someone’s ons which Andrews was confined over shot, ing -get I’m.going to shoot.’” years, ten The officers Ultimately, withdrew. [An- stated: drews] surrendered the officers after [The described referee] conditions in releasing young and woman another these abysmal, institutions as character- woman hostage. whom had also he held by overcrowding, ized severe seg- racial Id. 124 Cal.Rptr.2d P.3d regation, facilities, no sepa- substandard robbery Andrews was for arrested tougher ration of the inmates from County held Mobile Jail. Id. 124 Cal. inmates, younger or smaller constant vi- Rptr.2d 52 P.3d at 661. After a failed olence, persistent threat of sexual attеmpt escape jail, from the he suc assaults presence and the constant escaping on his try, ceeded second sexual pressure, availability and ne- to California., fled Id. 124 Cal.Rptr.2d cessity inmates,- of weapons by all P.3d at & n.5. degrading in disciplinary conditions mo- only dules. received beat- [Andrews] California, Andrews met Debra Pick- ings personally subjected but was also to ett, whom he had stable relation- sexual assaults. ship. Cal.Rptr.2d Id. 124 52 P.3d at child, Cal.Rptr.2d couple Id. P.3d had a and Andrews (internal omitted). quotation job marks held a during this time. Id. But referee stated that rarely Andrews “was December Andrews had resumed us- cocaine, job. gating background family. left-his Id. character and penalty Cal.Rptr.2d Id. after, phase. committed the three mur- Soon he - According to 662-64. here. Id ders at issue referee, hired defense trial counsel investi- testimony also described The referee gators guilt for the coun- phase, while experts that could have from mental health the-investigative sel themselves did work penalty phase. been at the Sum phase. for the Id. report, referee’s the Califor marizing the took 663. The trial counsel P.3d at noted nia that defense ex Supreme Court Mobile, trips to one in two and anoth- perts range Andrews with a diagnosed they trip, spent er in the first 1984. On disorders, including attention defi mental day searching records disorder, cit traumatic stress post disorder prior relating and documents convictions (PTSD), organic and mild moderate They to his also background. Id. searched part drug impairment, use brain due potential in An- relatives and witnesses prison. possibly injury to head due Id. On neighborhood. drews’s second experts opined An The defense trip, information counsel obtained about disability, learning cir the adverse drews’s conviction at prior murder childhood, impact of of his cumstances also county courthouse. Id. Counsel trav- systems, the the PTSD correctional and Pensacola, Florida, they to in- eled where and his commission of murders made Id. During mother. terviewed Andrews’s more and sexual assault understandable interview, they the course obtained Id. morally culpable. Cal.Rptr.2d less information was that Andrews a slow experts gave 661-62. The P.3d learner, him, grandparents his raised that im specific examples how Andrews’s getting and that into trouble as he started of in pairments brutal and the conditions teenager, telling Id. Miller remembered it difficult for him to carceration made that if he Andrews’s mother obtained An- Id. getting into trouble 'with the law. avoid permission information drews’s to obtain Cal.Rptr.2d 52 P.3d contacts, or other family from members he one For defense example, psychiatrist or Lenoir her would contact further Wheeler, one three that of the testified information. Id. murders, in the victims December 1979' The sum also days “faggot” a few called Andrews findings marized about the the referee’s occurred, An the murders before and on counsel placed constraints in con trial him predispose PTSD would drews’s ducting phase investigation, penalty their Cal.Rptr.2d to the Id. 124 overreact slur. though of Lenoir death limited this con psychiatrist The 52 P.3d at 680. investigation. aspect of the referee’s Id. by seri that was cluded “affected Cal.Rptr.2d 663-64. com ous emotional he disturbance when referee, there According to the were tacti Id. mitted murders.” cal, financial, rather than constraints. Id. (cid:127) re- The California Court’then main tactical constraint Miller recalled the findings referee’s questions on counted petitioner’s opposition as “the adamaricy two, three, ad- questions four. These and having family, particular in his his and investigative coun- steps mother, dressed the trial Id. testify the trial.” Cal. sel gather mitigating took to Rptr.2d According 52 P.3d at phase, steps referee, very counsel trial Miller consis “Mr. so, con- testimony regarding petitioner’s could in have taken do tent area, weighed against cooperate trial this straints that refusal this circumstantially by position supported investigating presenting miti- Simple by persistence.” made as well Id. 124 petitioner statements 473, 52 P.3d testimony prosecutor.” from the Id. at 662. referee Miller believed mother have thieatened to could Andrews had provid stated about ed more information up if his disrupt the'proceedings directions bringing and counsel to followed, directed other were counsel be and both family acquaintances members who 'genuine. threat was Id. lieved “Acced general. provided have wishes,” information ing to these Miller neither nor regarding schooling issues. Id. Counsel “pursued investigation Lenoir a full of pe could have obtained addresses infor family background or titioner’s never mation about witnesses through additional family members learned names publicly through documents or available exceptions.” two one or Id. word of mouth. Id. referee also be In addition to imposed the constraints “[sjeveral lieved areas inquiry were found that coun- referee relating petitioner’s available experi sel were concerned about the effects system ences the correctional in Ala prisoners as using witnesses. Id. Miller bama.” .Id. Counsel could have obtained jurors impressed by doubted juvenile prison records from the and adult credibility prison- demeanor systems correctional and could con ers, calling and he was concerned tacted inmates referenced those rec prisoners as risk disclo- witnesses would ords. Id. Or counsel could have conducted prison. sure of Andrews’s misconduct legal public “standard research of records Id. The referee found that Andrews had relating involving to lawsuits these institu stabbings been involved two other acknowledging tions.” Id. “peti While escaped and had inmates custodial cooperativeness significant tioner’s Further, facilities two occasions. issue,” the referee found counsel who provid- referee found the inmates developed could the pre have information testimony hearing, at the ed reference had hearing “through the sented reference violent criminal records and “substantial of any coop outside in the sources absence these offenses a substantial num- included petitioner.” eration from the Id. 124 Cal. escapes.” Finally, ber of Id. Miller testified Rptr.2d at 663. 52 P.3d Lenoir not to present that he and decided addition, In sig- although there was “no upbringing, be- evidence about Andrews’s history” in of nificant written the area neighborhood cause the house and in health, mental there was little evi- grew up resembled the which having mental dence members “family neighborhood in which Miller house impairments,” found that coun- the referee raised, thought “pov- and so was counsel psychiatric could ex- appointed sel have n /& viability. erty-presentation” lacked perts. Cal.Rptr.2d Id. 124 52 P.3d at Court also sum “[a]ny acknowledged referee on the referee’s additional marized views necessarily re- inquiry have may such not investigative steps that could have availability in of evidence of the the sulted Cal.Rptr.2d Id. 124 52 P.3d taken. diagnoses organic impairment, brain obtaining 662-63. The referee found that post disorders, or learning traumatic regarding information the circumstances According to the ref- stress disorder.” Id. impact upbringing, eree, of the Andrews’s person- quality of standardized “[t]he same, An in Alabama and correctional facilities ality the knowl- tests was not experiences, psychi edge adult and the post drews’s traumatic stress disorder was diag- aspects history resulting did infancy stage, atric not in beyond necessarily nosis have been favor- “any extraordinary call for efforts ability to that Andrews’s Id. Cal.Rptr.2d have testified petitioner.” to the able n joba and maintain stable relation hold 52 P.3d at 662-63. Pickett before he commit ship Debra (what evi addressing question five In strongly he the murders indicated ted dence, pre but damaging petitioner, Id. In ad damage. brain had not suffered guilt or prosecution at the by the sented dition, expert hаve testified that would trials, pre likely have been penalty would night “behavior rebuttal, intro petitioner if in sented thought, planning and murders showed character and any such duced petition unlikely that and it was therefore evidence), found the referee background of PCP when under the influence er was presenta prosecution’s rebuttal Id. he committed the murders.” about tion could have included Id. prior (did convictions. two Andrews’s response question six Finally, First, Cal.Rptr.2d P.3d request that either the himself petitioner presented testimony prosecutor could have or of miti- investigation presentation robbery, in the 1968 from the taxi driver phase at. be gating evidence An he heard who have testified manner, and, would so, if what curtailed him,” shoot and then say drews “[l]et’s request), the ref- petitioner specifically did- him. shots at least two fired there was doubt eree concluded Second, 473, 52 at 665. Cal.Rptr.2d P.3d to allow “adamantly” refused that Andrews informed the prosecution could have family his mother approach counsel to attempt to rob a jury about Andrews’s Id. This conclusion testify. them have following his release laundry business on the trial records based was holding two which involved prison testimony of witnesses at consistent gun her hostage, one with women Id. hearing. spe- response reference Id. head. “re- from the trial court questioning cific had heard that Andrews jury 665. The mother his reluctance to have his garding offenses, but did convicted of these was called,” of the trial court’s the face conviction on which the hear the facts testimony that his mother’s advice based; in prosecutor valuable, very precise Andrews “was of the un complete description troduced a fully telling judge that he response, evidence, to derlying aggravating events his choice and that understood culpability greater moral Andrews’s show omitted). (emphasis one else’s.” Id. and no triple-murder. Id. rape for the The referee further noted that the lead 659, 664. Cal.Rptr.2d 473, 52 P.3d at counsel, Lenoir, “represented on rec- petitioner at trial that refused to ord have' Further, determined that the referee his mother called that he ‘had his its own prosecution could have caked reasons,’ to Lenoir not wish Mr. did which to experts rebut mental health Andrews’s the court.” Id. The referee also disclose to 473, 52 Id. Cal.Rptr.2d P.3d evidence. “petitioner that went so found far The state could if disrupt the his threaten- to trial mother not testimony that did expert Andrews Id. Andrews’s opposition PTSD, were called.” from but rather suffered suffer disorder, family involve his was cor- having from re personality antisocial sister and uncontra- normal-range by his older roborated sented and had authority, Id. by IQ of 93. Id. A second state expert his mother.2 dicted hearing, disputed "the referee Miller’s testi noted credited 2. At the reference family finding objected only his mony he did not want to his [Andrews] ‘ involved, Supreme Court California but the particular investigations unnecessary,” the n Supreme Court particu made clear that “a considering After “the record lar decision- investigate must be hearing, the findings, referee’s factual directly assessed reasonableness -all trial,” petitioner’s original the California circumstances, applying heavy meas Supreme Court concluded that “petitioner ure judgments.” deference counsel’s constitutionally adequate repre- received Id. 124 Cal.Rptr.2d 52 P.3d at 668 sentation, inadequacy not re- did (quoting Strickland, 690-91, 466 U.S. at prejudice.” 124 Cal.Rptr.2d sult Id. 2052). Moreover, 104 S.Ct. strategic “valid 52 P.3d at 659. possible choices are even without extensive conclusion, reaching the court investigative efforts.” Id. (quoting Burger began by stating requirements for an 776, 794, 107 Kemp, v. ineffective assistance of counsel claim un- (1987)). 97 L.Ed.2d Finally, rea “[t]he Washington, der Strickland sonableness counsel’s may actions he (1984). 104 S.Ct. 80 L.Ed.2d 674 or substantially by determined influenced First, prove the court stated “[t]o the defendant’s own statements or ac claim of ineffective assistance counsel at tions,” “based, quite be properly, trial, penalty phase petitioner must stratégic by informed choices made (1) performance establish that counsel’s [ ] defendant and on supplied by information objective did not meet an of rea- standard Strickland, (quoting defendant.” Id. under prevailing professional sonableness 2052). 466 U.S. at (2) that prejudice ] norms and he [ suffered Applying . this deferential standard in thereby.” In re 124 Cal.Rptr.2d light developed of.the (internal quotation referee, Supreme the California Court con omitted). marks cluded that “counsel’s decision not Turning deficiency prong, first investigation mount an petition all-out into Court concluded background er’s of mitigating search that Andrews had not established supported by circumstances was reason performance counsel’s was defective. Its Cal.Rptr.2d professional judgment.” able Id. 124 reasoning was as follows. Under Strick (quoting Burg P.3d at 47 land, specifically “the Court- ad er, 3114). 483 U.S. at duty dressed to investigate counsel’s First, the California equate made clear courts should effec reasonably found that counsel could have investiga tive assistance with' exhaustive n pursue decided not to potential tion of information evidence.” family light de- Any P.3d at 668. judicial cision to scrutiny highly investigation.- “must curtail such an deferen tial,” guess and courts must noted that while “the found avoid second referee ing counsel’s assistance and must “elimi counsel could the mit- have discovered distorting nate hindsight.” igating effects of at the refer- 473, 124 Cal.Rptr.2d hearing ‘simple persistence,’” P.3d at 667 Id. with ence Strickland, 689, (quoting 466 U.S. at 104 the evidence that showed Andrews limited 2052). Further, while has investigation “counsel counsel could undertake duty to make investigations by insisting or not that counsel involve his 473, to make a family. Cal.Rptr.2d reasonable decision that makes Id. at P.3d involvement, mother's relatives,” any but also to is entitled under law: Id. 124 Cal. California gave credibility and referee's Rptr.2d 52 P.3d at 667. "great weight” determination the to which it mitigating: not range of Andrews’s childhood' Counsel within 668. were petitioner’s childhood sur “Miller viewed competence complying professional he roundings unimpressive because wishes, under Califor because Andrews’s comparable his law, representing them own.” attorney defen found to nia “an 473, 52 An Cal.Rptr.2d P.3d 673. phase capital of a case at the dant home environment miti “did not suffer a present drews required potentially not to any crimes objec place that would his under over the defendant’s gating evidence resorting explain or his People Kirkpatrick, standable context (quoting tions.” Id. to crime time he was released Cal.Rptr.2d every 874 P.2d 7 Cal.4th Cal.Rptr.2d (1994)).3 escaped prison.” Id. 124 from Moreover, 473, 52 his stable 670. P.3d Fui-ther, inter to the extent counsel have led the conditions in California could attempted mother and Andrews’s viewed jury to conclude Andrews’s “abandon An despite family contact members pursue ment of his own son cocaine the court found objection, drews’s ways criminal habit his former and concluded reasonably counsel could have sympathy suggestion he belie merited they that the information obtained drinking to his and parents’ abandon due mitigating. Cal.Rptr.2d Id. 124 powerfully grandfather’s his death.” Id. ment and mother “did 52 P.3d at 670. Cal.Rptr.2d 52 P.3d “Under 671. him, but him with ah left abandon circumstances, these counsel could reason including ‘loving his family extended mitigation ably reject background strate grandfather, regularly sent responsible’ plead -basis to gy in an alternate favor children, money clothing to her petitioner’s Cal.Rptr.2d life.” Id. 124 years remain in several later to returned P.3d 673. testimony family Id. The home.” Second, California family generally An members showed reasonably that counsel could have early upbringing family life found- drews’s develop regarding not to decided relatively “to be stable and serious without Andrews’s confinement. privation or All one of his sib but conditions abuse. school, Id. 124 52 P.3d at 670-71.4 lings completed high only one findings, Relying part on the referee’s a minor Id. Coun brush with law.” Supreme Court the California preliminary investigation sel’s showed noted Richter, Despite application of imposed An Strickland. constraints drews, Court found the California 131 S.Ct. 770. Mobile, that Andrews's counsel traveled relatives, poten- Alabama twice search dissenting Relying opinion on the n documents, witnesses, legal also tial aiid Supreme Court’s Justice in the California Pensacola, interview Florida to traveled case, Andrews, opinion in this In re Cal. Andrews's mother. 124 Cal. In re J., (Kennard, Rptr.2d at 681 Rptr.2d con P.3d at 663. The dissent dissenting), the dissent claims much, n.1, cedes as Dissent so its at 1048-49 attorneys be rendered ineffective assistance finding that conducted Andrews’s -counsel allegedly they cause failed ask Andrews "virtually penalty phase investigation” regarding prison questions conditions. negative expression of the dissent’s merely AEDPA, we do not Dissent at 1050. But under evaluation of counsel’s Dissent at efforts. petition perform de novo of a such a review 1048. But because claim; rather, only ask- er’s we Strickland Court determined that counsel was reason application court's of Strick whether the state information, pursuing able in further ,was Harrington objectively land unreasonable. only, question raised- the Antiterrorism under Richter, 86, 101, (AEDPA) v. Penalty Effective Death Act and (2011). objectively whether this was an unreasonable L.Ed.2d while the conditions in which Andrews son who had had become desensitized and in (cid:127)no peti- been incarcerated “leaves doubt ured to violence disrespect and for the Id. horrifically Moreover, tioner demeaning endured and law.” the witnesses’ “crimi circumstances,” degrading counsel could nal histories would automatically subject reasonably introducing conclude that impeachment.” them to Id. The court also evi- dence these about .from former hearing conditions found that such -witnesses testify “proved inmates could have a double- about brutal conditions in Alabama would sword,” edged jury because the could question have “raise the petitioner why so negative impressions readily the witnesses resorted to crime when he escaped and the evidence that color their predatory would brutal and conditions Ala Id, views The Andrews. witnesses testi- bama California, and relocated to where he fying to the conditions under An- which found work and Id. family.” started a drews was incarcerated “one included Counsel could also reasonably conclude inmate, death row with felony having rec- serious inmates describe Alabama murder, ords for rape, prison and rob- armed conditions “potentially open bery,” as many well as inmates who “had the door to additional of petition engaged themselves Id. 124 Cal.Rptr.2d brutality past.” while er’s criminal prison escaped frequency.” with some -52 Among P.3d at -673.5 things, other Id. 124 Cal.Rptr.2d prison “evidence of conditions could have jury could jury’s led to learning have drawn “unfavora- of petitioner’s comparison” ble both from escape custody,” second which could “[rjather cases, engendering than danger “created a defense counsel sympathy, the evidence reasonably sought could well have avoid.” Cal. impression per- Rptr.2d 473, reinforced an of him as a 52 P.3d at 669.6 erroneously argues 5. The given dissent rea that it is not clear that the sonable counsel have decided to "experts respected avoid observers” who testi dangers relying prisoner testimony evidentiary hearing, fied at the state court Meigs' because "the Mt. evidence was not which occurred almost a decade An after dependent upon testimony prisoners” sentencing hearing, drews's would have been by’the but rather could have been offéred testify sentencing available to at Andrews’s "experts respected observers” who testi hearing in 1984. fied at Andrews’s court evidentiary hear argues 6. The dissent that the ing. California Su Dissent at In reaching 1050-51. preme conclusion, excusing unreasonable in the dissent substitutes its de Meigs counsel's to discover finding failure Mt. evi findings novo for the of the California Court, dence based on Andrews’s refusal to Supreme- involve which held that ‍​‌‌​​‌​‌​​​‌‌‌​‌​‌‌​​​​‌‌​‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌​​​‌‍"whatever family. his Dissent mitigating at 1049-50. This strained have been disclosed reading by pursuing of the California Court's the conditions of incarceration petitioner experienced, broad statement about evidence is knew such ev fact, itself idence primarily would come unreasonable. In Su from the testi preme mony petitioner's prisoners, many fellow never stated there was a whom family were connection hardened criminals with between restrictions and serious Andrews, Rather, felony prison records.” In re 124 Cal. conditions. the court conclud Rptr.2d ed family’s P.3d at 668-69. Under 28 restrictions on his 2254(d)(2), "may U.S.C. a federal court involvement would have limited counsel’s second-guess” findings ability develop background state court’s factual wrong, unless the state merely "not childhood. In re actually light that, but unreasonable” of the rec (noting permitted, 52 P.3d at 662 if Maddox, Taylor before "[tjrial ord it. 366 F.3d petition counsel could have contacted (9th 2004). Cir. dissent family develop background .could not er’s childhood.”). reasonably hand, conclude that the California Su On Califor the other preme objectively Court’s conclusion was un nia Court concluded that ”[e]vi- petitioner exhibited ination as to whether Third, California than some rather reasonably personality antisocial counsel could have found n Id. impairment.” form of expert testimony mental not to decided introduce health because “[t]he mental on Andrews’s Supreme’ Court Finally, the California exploited have the testi prosecutor could that counsel had been reason concluded experts.to peti health mony of the mental adopting strategic approach able disadvantage.” Cal.Rptr.2d Id. 124 tioner’s cir minimizing “culpability by noted 52 P.3d at 670. The mitigating cumscribing background and his hearing at the experts of the one reference Id. Cal. responsibility.” criminal' his react with “that convicts tend to testified implement 669. In 52 P.3d at Rptr.2d insults, they behavior rage perceived to An portrayed strategy, this counsel to even shed when dis find difficult violently than as.“a follower rather drews this have ex charged,” and while “urged jury to antisocial” consider actions, “it does not plained Andrews’s mitigation the fact that others who had a, sympathetic necessarily impres create multiple more heinous murders committed just jury sion” “[t]he -could .as possibil been to life without because had sentenced to was unable con readily petitioner infer ity parole and that co-defen [Andrews’s lethal, provo slightest on the impulses trol lighter comparatively sentence.” dant] received Moreover, have there would According cation.” to the California Id. experts regarding Court, of the only “not approach been battle this had suffered brain sparing whether a reasonable case refereijce circumstances, damage at Id. And petitioner’s “[a]s all. life under the. demonstrated, a mental health of substan hearing foreclosed the but introduction given would also have or on penalty aggravating defense tial rebuttal opportunities repeat prosecution several cross-examination could have under by depicting petitioner crime as as well mined the defense the- circumstances criminality questioning aggressive vio past as and desensitized petitioner’s (citation omitted).8 lence.” Id. experts on both direct cross-exam (Kennard, J., again, juvenile dissenting)). Once relating impact dence finding contrary systems could dissent’s de novo fact correctional have and adult developed by obtaining prison the California Court’s reasonable records been jury evidence that the contacting in those conclusion based on inmates referenced stipulation regarding- An conducting legal before it a as standard records as well robbery relating grocery drews’s role in the 1966 store publiс records research lawsuits institutions,” re (emphasis portrayed Andrews as follower. involving which In these id. Andrews, added), using Cal.Rptr.2d 52 P.3d at 659. and main constraint this problems of call evidence was "the inherent witnesses,” ing prisoners Cal. id. argue Andrews and the dissent Rptr.2d at 664. 52 P.3d prosecutor put on would not have additional Dissent at 1057. But rebuttal evidence. rejected Supreme Court the California Su- the California The dissent criticizes ; concluding argument, finding presentation preme Court for that Andrews’s wpuld prompted the strategy by, adopted a reasonable prosecutor things, portraying shift the focus of among Andrews as a other witnesses, case, culpable phase put on less than others. additional who was follower closing argument dissenting again Su Relying on the use cross-examination Justice, mitigation damage case. the dissent claims that to further preme Court Cal.Rptr.2d 52 P.3d only jury re evidence before the was that "the dissent, Contrary Dissent at instigator 665-66. to the rather petitioner was than n.5, - courts must defer to (quoting 1053-54 federal Dissent In re follower.” drews, An see, findings, e.g., court’s factual at 682 1015 Given these reasons for not pursu ducing valid background such raised a . ing background, the fact risk aggravating information would be (cid:127) lengthy presentation that “a of a (2) broad introduced, and adopted counsel had range describing witnesses var detail strategy reasonable of minimizing his aspects ious of petitioner’s background” culpability light client’s of the co-defen “have atypical penalty would been for a dant’s 473, dominance. Id. 124 Cal.Rptr.2d phase trial, id., defense” at the time 52 at (citing P.3d 672-73 Burger, 483 U.S. concluded that “counsel’s strate 3114). 107 S.Ct. The California gic to scope decision limit the of their Supreme Court determined that Andrews’s investigation of mitigating background evi counsel had even more compelling justifi present dence and to such cations for not introducing background evi penalty phase ‘the came within wide Burger’s counsel, dence than given that range of professional assist Burger endured worse than childhood ” ance,’ 473, id. 124 52 Cal.Rptr.2d Andrews, a teenager.at was the time of the (quoting Strickland, 689, 466 U.S. murder, only murder, had committed one 2052). S.Ct. primarily was not responsible for the 473, decision to kill. 124 Cal.Rptr.2d Id. P.3d at 673. The Supreme California Court next con Next, Supreme California Court firmed this conclusion was consistent Cone, turned Bell v. U.S. clearly then Supreme established (2002). S.Ct L.Ed.2d In re precedent, Cone, Court Bell v. 124 Cal.Rptr.2d 52 P.3d at 122 S.Ct. 152 L.Ed.2d 914 Bell, In provided (2002), Taylor, Williams U.S. phase evidence at all closing and waived (2000), 120 S.Ct. L.Ed.2d 389 argument. Bell, (citing 535 U.S. at Burger v. Kemp, 483 U.S. 1843). Court con- (1987). 97 L.Ed.2d 638 The court cluded strategy that counsel’s was reason- provided following reasoning. Burg In able, er, because evidence of nor- defendant’s Court held that counsel mal might perceived childhood was not deficient been though even he declined negatively present by jury, evidence of the and because ne coun- defendant’s glectful, violent family closing argument his mental sel’s decision to waive deficiencies, (l) emotional 'intro prevented prosecutor because: from depict- lead 2254(e) (“In § proceeding petitioner U.S.C. instituted did take the initiative for by application corpus for a police writ habeas violence" testimony and the officer’s by person custody pursuant judg- robbery to the laundry the 1977 would have shown court, ment “petitioner’s of a State a determination of a lack of reluctance to use violence by factual issue made State court shall obtain ends.” Id. The court therefore correct.”). presumed to be The California Su- supports concluded that "substantial evidence preme Court .finding presenting noted that it "clear from the referee’s . the miti- damaging testimony regard- gating record that much opened evidence would have the door ing petitioner’s prison damaging violent repeating own conduct rebuttal.” Id. An- desensitizing and other prosecutor circumstances in- drews’s claim from An- have, matеs violence could and undoubted- drews's trial would not re- have introduced n have, ly would been elicited cross-exami- buttal witnesses had the defense conditions, nation.” Id. 124 prison 52 P.3d at evidence of Andrews’s Dis- evidence, 1053, 1057, Among testimony other by sent at the dissent errs con- robbery the taxi driver in the ducting failing its own de novo review and have rebutted who findings witnesses characterized defer to the state court’s factual un- petitioner 2254(d)(2) (e). "demonstrat[ing] as a follower der 28 U.S.C. a heartless killer. Id. precedent consistent with its the defendant Bell, 699-702, 122 (citing conclusion that estab 1843). “in light noted of all the lished that circum Bell stances, strategy counsel’s in was that the acts omissions of identified strategy coun similar to the of range Andrews’s were outside wide of counsel Id, background infor by providing little professionally competent sel: assistance.” closing ar giving only (inter 473, mation and brief Cal.Rptr.2d 52 668 124 P.3dat gument, damaging counsel could reduce alterations omitt quotation nal marks and Id. 124 Cal.Rptr.2d 473, ed).9 evidence. rebuttal 52 at 673-74. P.3d 4 Finally, Supreme Court California Supreme The California Court next Taylor, Williams considered prong, turned As ex prejudice 389 120 S.Ct. 146 L.Ed.2d below, greater plained in the Califor detail (2000), held that which counsel rendered determined, Supreme nia Court based on of by failing ineffective assistance counsel of the its review evidence adduced nightmarish

to investigate defendant’s hearing and rebuttal reference evi childhood, retardation, borderline mental dence that could been introduced Id. 124 Cal. in prison. model behavior and “it during penalty phase, that is not 473, 52 Rptr.2d (citing P.3d at 674 proba[ble]’ ‘reasonably] petitioner was Williams, 395-96, 529 U.S. at rejection prejudiced counsel’s a de 1495). Supreme The California dis Court premised petitioner’s on evidence of fense case, tinguished noting this that counsel’s prison upbringing, the conditions Alabama to investigate not failure Williams experienced, he health mental case, strategy, as in on based Andrews’s crimes, light of the circumstances of but counsel’s erroneous understand due given ambiguous nature of some miti Id. ing of the law. The state court also Williams, gating poten evidence and the substantial was no tacti that in noted there rebuttal.” Id. damaging 124 tial cal Cal. withhold evidence and there reason Rptr.2d rebuttal, (quoting 52 P.3d at 671 damaging risk of virtually Strickland, Id. 466 U.S. at S.Ct. Cal.Rptr.2d in this case. 2052). P.3d 674-75. Supreme “Having the record

The California considered of the therefore findings, then-existing Supreme hearing, factual concluded referee’s argues Similarly; determining Su- The dissent the California instead wheth- Bell, Burger, any preme relying jurist erred in er fairminded conclude there could distinction,” concluding "principled is that Andrews’s Murdoch v. Cas- and Williams (9th tro, 2010) (en 1051— 609 F.3d Cir. counsel were not Dissent at deficient. 1054-55, banc), meritless, Williams, This how- criticism is case between this ever, misrepresents Supreme is the California because it based on de novo review dissent holding virtually required the deference under Court as that “a rather than nonexistent example, concluding phase investigation For is so AEDPA. long upon is California reliance on as it Court’s based misunderstand- “[t]he law,” unreasonable,” rejects Burger is then Dissent at absurd reading de approach the dissent takes a novo Dissent at "[I]t Williams. 1054-55. AEDPA, permitted apparent analysis under where a how [dissent's] jurists consider been different without AED- must whether "fairminded would have Richter, disagree that the court’s 562 U.S. at decision PA.” prece- (faulting approach Supreme] Circuit’s novo conflicts with Court’s the Ninth de [the dents,” review). Richter, 562 habeas U.S. at claim, trial,” original petitioner’s California tance denied claims, other granted Court concluded Andrews certificate (COA) constitutionally adequate repre- appealability “received on Andrews’s claim sentation, any inadequacy injection did not re- California’s protocol lethal (Claim Eighth violates the Cal.Rptr.2d Amendment prejudice.” sult 25). Accordingly, at 659. P.3d Court denied state ha- timely appealed, challenging Id. рetition. beas the district court’s denials Claim and at 676. several uncertified claims. The state cross- appealed grant the district court’s relief on Andrews’s ineffective assistance of Supreme After the California Court re- briefing claim. After on his appeal claims, jected Andrews’s filed complete, was for permis- Andrews moved petition in habeas district federal court. to brief sion an additional uncertified claim claims, petition His in- amended raised ground for habeas on the relief it cluding multiple subclaims. Eighth violate Amendment him long delay execute after a from the In a lengthy ruling on the nierits of the of his sentencing. granted date We petition, the district court denied 31 motion. claims, granted but relief .on Andrews’s claim his counsel were ineffective at II trial for phase failing grant We a district court’s review

investigate present additional mitigat- or denial of habeas relief de novo. Moses v. reaching conclusion, evidence. Payne, (9th 2009). F.3d Cir. court not apply the district the stan- did by Antiterrorism dard mandated A (AEDPA). Act Penalty Effective Death In- AEDPA determining applies stead whether the Califor- to Andrews’s federal Supreme rejection petition, nia Court’s was filed after April this inef- habeas which Murphy, 1996. Lindh v. fective assistance of counsel claim' was to, 322, 336, “contrary or an involved unreasonable 117 S.Ct. L.Ed.2d Strickland, (1997). AEDPA, required as application by of’ court Under 2254(d)(1), § grant petition respect 28 U.S.C. district court “with habeas by adjudicated claim on produced reviewed the evidence on proceedings,” referee this issue de novo and merits State conclud- court 2254(d), § to adequately counsel’s “failure U.S.C. unless the state ed court’s investigate judgment evidence of a life decision that discover “resulted to, contrary or' privation filled abuse and sufficient unreasonable involved of, Strickland.” prejudice application under clearly to establish established Federal Richter, law, Supreme by 131 S.Ct. as determined Court U.S. at Cf. States,” 2254(d)(1), § (criticizing the Ninth Circuit’s review a of the United 2254(d)(1) § opinion “was on determina- state court under be- based an unreasonable of the give tion of the in light cause failed deference due facts AEDPA). granted proceeding,” court The court An- under the State 2254(d)(2).10 § petition this ineffective assis- drews’s party "last disputes

10. Neither that the claims in reasoned deci decision constitutes "adjudicated respect were on the this case merits” sion” of the state court with to those Court, Supreme the California and that its (2014) (internal 1706, 188 quo 2254(d)(1),' L.Ed.2d 698 § Under relevant omitted). only A precedent-includes principle Court tation marks clear “as of the time “if, the decisions in existence ly governing law the case established court its decision.” the state rendérs if, clearly it is so that a only obvious Fisher, 34, 132 565 U.S. Greene applies given rule to a set established (2011) (internal quota 181 L.Ed.2d 336 rio fairminded facts that there omitted); emphasis tion marks see also question.” on the disagreement 170, 182, 131 Pinholster, Cullen v. 563 U.S. (internal quotation omit 1706-07 marks (2011) (“State- S.Ct L.Ed.2d ted). against [the court decisions are measured court is “con A state decision Supreme] precedents Court’s precedent if trary to” “the its the state court decision.” time renders applies rule that contradicts state omitted)). (internal Thus, quotation marks forth in governing [Supreme law set Supreme Court decided cases after Williams, cases.” clearly Court] estab state court’s are decision “unreasopable 2254(d)(1) 1495. An precedent applica lished under evaluating whether purposes is not precedent tion” reasonably Supreme that, Court applied, court merely “incorrect or one errone precedent. 75, Andrade, 63, ous,” Lockyer v. 538 U.S. 1166, (2003); 155 144 see 123 L.Ed.2d S.Ct. Supreme A Court decision is Williams, 410, 529 at also 120 S.Ct. U.S. 2254(d)(1) § clearly under established law rather, 1495; pivotal question “[t]he “squarely it unless addresses issue” application whether the state court’s court, Wright v. the case before the state Court Supreme precedent] was [relevant Patten, 120, 552 128 Van U.S. 101, unreasonable,” Richter, 562 86 U.S. at (2008) 743, (per 169 583 S.Ct. L.Ed.2d 770, (emphasis 624 131 178 L.Ed.2d curiam), legal principle a or “establish[es] S.Ct. ” that, added). 2254(d), § a “Under habeas court to the case before ‘clearly extends’ court, Moses, arguments F.3d 754 or state at must determine theo what 555 (alterations omitted) Patten, (quoting decision, Van the state supported” ries court’s “ 743); 123, see also 552 at 128 S.Ct. 770, U.S. if id. at 131 S.Ct. ‘fairmind- Musladin, 76-77, 127 Carey v. 549 U.S. disagree’ jurists ed could on the correct (2006) (holding 166 482 S.Ct. L.Ed.2d decision,” state court’s ness the' evaluating Supreme cases .Court unreasonable, is not id. at decision state-sponsored conduct were courtroom (quoting Yarborough 770 v. Alvara S.Ct. clearly governing pri established law 652, 664, do, S.Ct. actor a “[W]hen vate courtroom- conduct^ (2004)). L.Ed.2d 938 principled state court draw a distinc Supreme Court made has case tion between the before and Su 2254(d) § “highly a clear that sets forth caselaw, clearly is not preme Court the law ..., standard which demands deferential for the state-court case.” Mur established given that state-court the ben decisions doch, 609 a “[I]f habeas F.3d Pinholster, efit the doubt.” U.S. it can apply a rationale before must extend (internal quotation 131 S.Ct. hand, by facts then definition omitted). AEDPA, by marks “As amended clearly rationale established at the 2254(d) § stops imposing short a com time of White v. the state-court decision.” — Woodall, —, 1697, plete relitigation on U.S. S.Ct. bar federal-court 2010). 987, 993, (9th Cheney Washington, F.3d claims. See Cir. land already rejected claims proceed state ‘of necessity requires test case-by- ”

ings,” only “preserves but authority is case examination of the evidence.’ Pin writ in sue the cases where is no there holster, n.17, 563 U.S. at 196 & 131 S.Ct. possibility jurists dis fairminded Williams, (quoting 529 U.S. at agree that the state court’s decision con 1495). Further, Supreme Court precedents” flicts with this Court’s cases decided on de novo review “offer ho Richter, “goes no further.” 562 U.S. at guidance respect whether “[Ejven a strong S.Ct. 770. case for unreasonably court has determined that not mean relief the state court’s con does prejudice is lacking” defense counsel trary conclusion was unreasonable.” Id. deficient, not directly and so are appli nutshell, this standard is difficult to “[i]f cable to a federal court’s under review meet, that is because it was meant be.” 2254(d)(1) petitioner’s of a habeas claim 102,131 Id. S.Ct. 770. unreasonably .that state court applied Strickland. Id. In S.Ct. 1388. B deed, a of Strick application state court’s clearly federal established land may be objectively reasonable based law ineffective assistance of counsel clearly established claims, determined precedent at the time of if its decision even Court, Washington, is Strickland v. subsequent applica Court’s 80 L.Ed.2d 674 tions of Strickland suggest re different Pinholster, (1984), progeny. and' its contrast, By sult. the Supreme when 189,131 Strickland 563 U.S. at question addresses the AEDPA whether a that, concluded under the Sixth Amend state court’s adjudication an ineffective ment, right the accused has the to the assistance of claim counsel was an unrea effective assistance of counsel at trial and Strickland, sonable of application its rea during capital sentencing proceedings. 466 684-87, 104 soning may guide U.S. at A a federal court’s AED- petitioner S.Ct. 2052. claiming ineffective assistance of counsel PA analysis when facts Supreme (1) prove: perform must that “counsel’s (including Court prevailing pro case deficient,” (2) norms, ance was defi “the fessional of at the time the defen performance prejudiced cient the defense.” trial)- analogous dant’s are the case be Id. at 104 2052. S.Ct. fore the court. In determining whether a state court’s Strickland, Under deficient adjudication of an ineffective assistance of performance performance is that falls “be claim was an applica unreasonable objective low an of standard reasonable Supreme tion of precedent, may Court we of of range ness” is thus outsidе “the Supreme consider how the has Court itself competence attorneys in demanded applied Strickland to other factual con " 687-88, criminal cases.” 466 at 104 U.S. texts, merely but this is “illustrative of the (internal quotation S.Ct. 2052 marks omit proper application of stan [Strickland’s] ted).'The objective measure counsel’s Smith, Wiggins dards.” See v. 539 U.S. performance pre “reasonableness under is 510, 522, 123 S.Ct. 156 L.Ed.2d 471 norms.” Id. at vailing professional 688, 104 Pinholster, (2003); see also at 196 U.S. Therefore, perform S.Ct. 2052. counsel’s n.17, 131 1388; Means, Fed S.Ct. Brian R. only ance deficient if it' falls below the eral Habeas Manual (2014). 3:29 The prevailing professional standard of then Supreme Court has warned us not to de rive “strict rules” from norms at trial. applying its cases time Pinholster, Strickland de novo because “the Stride- instance, argument rejected would have concluded that balance dissent’s performance counsel’s was defective where aggravating mitigating and- circumstances provided evidence that the dissent Strickland, death,” did warrant strategy mitigation chosen counsel’s explain U.S. at S.Ct. We profes with the standard “inconsistent guidance Court’s on each these competence capital cases that sional steps. Angeles 563 U.S. prevailed Los 1984.” 1388; Bobby v. 131 S.Ct. see also at Hook, 558 U.S. S.Ct. Van step determining The first curiam) (2009) (per (holding L.Ed.2d performance whether counsel’s deficient improperly re Circuit that the Sixth prejudiced penalty the defendant 2003 ABA on much more detailed lied totality of phase evaluating “the years after Van “announced 18 Guidelines mitigation Williams, available evidence.” trial”). Therefore, a court Hook went 397-98, 529 U.S. at S.Ct. per counsel’s may evaluate whether to be both evaluated includes prevailing professional fell below formance actually presented evidence that was of a defendant’s trial at the time conduct sentencing competent and evidence that opinions reference attorney Wiggins, See have introduced. later-developed professional rely 39 U.S. S.Ct. 2527. norms. 5 competent A court assume that at provided Supreme Court has also torney presenting would have considered to deter guidance applying Strickland post-con all of the evidence adduced perform “deficient whether counsel’s mine Wong v. Belm proceedings. viction defense,” Strickland, prejudiced ance ontes, 15, 20, 558 U.S. 2052, at U.S. curiam). (2009) (per 175 L.Ed.2d 328 phase capital case. Illustrative precedent indicates that a Supreme Court Mitigation is a broad cat generally proceeds through three egory, jury permitted as a must be (1) weighing to steps: evaluating and consider all relevant factors. evidence, tality mitigation of the available Ohio, Lockett Williams, 397-98, 120 see S.Ct. 2954, (1978)(plurality opin 57 L.Ed.2d 973 Pinholster, 197-202, 1495; 131 563 at U.S. ion); Oklahoma, 104, v. Eddings 455 U.S. (2) 1388; evaluating weighing and S.Ct. 110-12, (1982). 869, 102 1 S.Ct. L.Ed.2d 71 aggravating evidence rebuttal evi and Court has identified several dence that could been adduced have categories mitigation non-exclusive evi mitigating government evidence dence, focusing primarily on evidence that introduced, Williams, 529 U.S. at been jury’s aids of a defendant’s evaluation S.Ct. 1495; Pinholster, 397-98, 120 563 culpability. Wiggins, moral 539 at See U.S. 1388, (3) 197-202, at 131 U.S. S.Ct. 535, instance, 123 S.Ct. evidence For aggravation in reweighing the evidence disadvantaged background of a defendant’s totality against the of available may jury a to conclude the defendant lead evidence, see 945, Upton, 561 U.S. Sears v. culpable is “less than who defendants 955-56, 3259, 130 S.Ct. 177 L.Ed.2d 1025 Lynaugh, Penry no such excuse.” v. 492 (2010) curiam); (per 539 U.S. Wiggins, at 319, 2934, 302, 109 106 U.S. S.Ct. L.Ed.2d 2527; Williams, 123 529 U.S. S.Ct. at (internal (1989) marks quotation 256 omit 397-98, 120 S.Ct. determine ted), abrogated grounds by At there is a on other probability “whether that, errors, 304, 122 Virginia, absent the the sentencer ... kins v. 536 U.S. S.Ct.

1021 (2002). Thus, 153 montes, 335 L.Ed.2d evi mitigation noted evi that a dence defendant had a childhood dence that the defendant had maintained privation,” including “filled with abuse and strong relationships family with members being by parents raised who were eventu spite childhood, his terrible and that ally imprisoned for criminal neglect, child prison, while in he assisted through others jury’s appraisal could influence a prison a religious program and rose Williams, culpability. defendant’s moral second in command a fire crew. U.S. 395, 398, 1495; U.S 120 S.Ct. see 21, 130 S.Ct. 383. Wiggins, 539 U.S. at also 123 S.Ct. (mitigating evidence evi included After identifying the evidence defendant, dence that the suffered severe the petitioner mitigating; claims to be child, privation and as a abuse had an weigh strength must its by assessing mother, alcoholic physical and absent likely impact its on jury. weighing This ly care, sexually abused foster (cid:127) process evaluating includes whether period); was homeless Rompilla for brief impact evidence’s on jury might be Beard, 374, 391-93, 545 U.S. 125 S.Ct. aggravating mitigating. than rather (2005) (mitigating L.Ed.2d 360 Pinholster, 201-02, 563 U.S. at 131 S.Ct. evidence evidence the defen included 1388. The Supreme Court has indicated in a by severely dant was raised slum that courts can consider fact that miti abusive, parents, pro alcoholic who did gation “may beholder,” eye him). for him vide and isolated juries may find that some evidence of Similarly, a defendant’s mitigation offered cuts way. the other mental or emotional difficulties lead a Burger, U.S. S.Ct. jury to conclude less a defendant (alterations quotation and internal marks culpable than defendants such without dif- omitted). In Burger, the Court noted that Penry, ficulties. U.S. hand, jury one could react “[o]n instance, For that a defen- sympathy tragic over the childhood” retarded,” mentally dant is “borderline defendant, hand, while the other Williams, 529 U.S. at testimony same establish the defen (internal quotation omitted), marks or has dant’s “unpredictable propensity vio military combat, from severe PTSD see (inter lence” that resulted murder. McCollum, Porter v. 35-36 & omitted). quotation nal marks n.4, Similarly, 43-44, 175 L.Ed.2d 398 (2009), evidence mental problems and emotional learning has severe behav- disabilities, might suggest ioral frontal injuries, lobe increased likelihood that damage brain drug dangerous and alcohol defendant would be in the abuse, Sears, Pinholster, see future. See 563 U.S. at 3259, is potentially mitigating. S.Ct. (noting S.Ct. 1388 that evidence of the family background, defendant’s his sub Evidence or behavior conduct demon abuse, issues, stance and his mental health strating good the defendant’s character “by clearly mitigating, was means as Williams, may mitigating. also be In the jury might the concluded [the gave weight Court to evidence that the simply beyond defendant] in, was rehabilita defendant had turned himself alerted tion”). pplice has also previously crime, to a Court undetected .observed remorse, expressed cooperated youth evidence the police, with defendant’s normal prison, and behaved in might, jury’s well 529 in eyes, greater at the establish U.S. 369, 396, 398, 120 1495. In S.Ct. Bel culpability part moral on the of the defen

1022 701-02, man, pregnant of a Bell, stabbing 122 at of one and'the 535 U.S. dant. See 1843. trying protect in lay bed to she woman S.Ct. cir baby,” combined with the her unborn crime, cumstances “overwhelm n “devastating” aggravating evi ing” and in step second determin n.5, Bell, dence); accord at 700 & U.S. perform deficient counsel’s whether (defense reasonably counsel S.Ct. 1843 pen the at the prejudiced defendant ance infor prosecution would elicit feared the evaluating weight the the alty phase history, criminal mation about defendant’s rebuttal evi aggravating evidence robberies, rebuttal); in ad included could have which government that the dence S.Ct. 3114 Burger, been 483 U.S. at mitigating the evidence duced had 397-98, Williams, (defense 529 U.S. at counsel feared reasonably introduced. n 1495; Pinholster, .defen prosecution 563 U.S. introduce the S.Ct. 1 rebuttal, 197-202, Aggravating history evi in juvenile 1388. criminal dant’s S.Ct. record). to relating may include evidence a clean adult Evi dence when he had Thus, previously of the crime. circumstances that a had dence defendant Strickland, aggrava found the may th'e Court be “the committed another murder “overwhelming” where to be ting imaginable aggravating evidence evi most powerful had stabbed the Belmontes, the defendant repeatedly 558 U.S. dence.” during robbery. (internal victims three murder marks omit quotatiоn S.Ct. 383 S.Ct, 674, 700, 104 Simi ted). larly, the record showed where directly un- Rebuttal also bludgeoned a woman defendant mitigation value of evi- dermine the 15 to 20 dumb blows steel death Supreme' For Court example, the dence. $100, goods worth steal bell bar “of that it would be noted Pinholster agreed with the Supreme Court state questionable mitigating value” defense “simply aggravating evidence was testimony expert di- introduce that coun overwhelming” and determined bipolar agnosing a defendant with mood to introduce certain failure sel’s disorders, seizure because disorder and Belmontes, prejudicial. by invite rebuttal such evidence would 26-27, 15-16, S.Ct. reject diagno- expert, who omitted). (internal marks quotation Van offer a different bipolar sis disorder and Hook, gave weight to personality disorder. diagnosis of antisocial the murder was committed evidence that 177, 201, Pinholster, 563 U.S. at course of a rob homosex scheme luring them into set ual secluded men 13. In tings. 558 U.S. so, doing clarified determining step The third number, of aggravating weight, performance counsel’s whether deficient important. factors was at the prejudiced the defendant aggra phase “reweigh the evidencem pri- about defendant’s Evidence miti against totality of available history aggravating is also and vation or criminal rebuttal, evidence,” 539 U.S. at gating can introduced and severe Wiggins, n great weight. in order determine history carries 123 S.Ct. criminal See Visciotti, probability 26-27, is a reasonable 537 U.S. “whether there Woodford errors, (2002) that, ... the sentencer 154 L.Ed.2d absent 123 279 S.Ct. of that the balance (criminal have concluded history knifing that included “the would 1023 family mitigating background” circumstances dant’s aggravating and “troubled and Strickland, death,” disorder, not warrant 466 possible outweigh seizure did not did A 104 “reasonable factors, at U.S. S.Ct. “overwhelming” aggravating probability probability” a level including the circumstances of the crime n in the confidence outcome.” “undermine[s] potential prior rebuttal evidence of However, Id. at 104 coun offenses). S.Ct. performance prejudi is not sel’s deficient In reweighing aggravating mitigat merely cannot “rule cial because ing evidence, the Court has also examined the possibility that the sentencer out” mitigating whether evidence would be of life imposed have a

would sentence merely or signifi cumulative would have Bel penalty. instead prison death cantly information provided altered the montes, 558 at 130 S.Ct. 383 U.S. Strickland, the sentencer. See at U.S. (internal omitted); quotation marks see 699-700, 2052; Porter, 104 S.Ct. 558 U.S. Richter, also at S.Ct. 770 U.S. 41-42, Strickland, at 447. In S.Ct. Strickland, (“In assessing prejudice under barely new information “would have al can is not a court be question whether picture tered” the at presented sentencing, no performance counsel’s had ef certain prejudice. the Court no found 466 U.S. ”). Rather, fect on the outcome.... “[t]he 699-700, 104 Similarly, at S.Ct. 2052. likelihood a result must be different Belmontes, Court concluded that mere Richter, substantial, just conceivable.” ly regarding peti cumulative evidence (citing U.S. at childhood, expert tioner’s difficult tes Strickland, 104 S.Ct. U.S. timony regarding petitioner’s mental 2052). Thus, between “the difference behavior, “seeking explain or Strickland’s prejudice standard and a it in putting some favorable context” would more-probable-than-not is slight standard outweigh unlikely to facts ” case.’ ‘only matters the rarest murder, would brutal arid be even less Strickland, (quoting 466 U.S. likely outweigh that the evidence defen 2052). a prior had committed dant murder. prob- The Court has a reasonable found 22-24, 27-28, S.Ct. 383. Ac of a when ability outcome scant different cordingly, the Court concluded that aggravating evidence could have and weak present failure additiónal'mit- presented strongly mit- been rebuttal prejudicial. Id. igating evidence was not Wiggins, See evidence. 539 U.S. at igating 27, 130 S.Ct. 383. 534-36, 537-38, (holding 123 S.Ct. opinions These illustrate .Court probability there reasonable prejudice prong, that under Strickland’s jury á that the have reached differ- -mitigating does not cumulative evidence pоw- sentencing result at ent heard support a conclusion that there would abe regarding mitigating erful evidence de- probability reasonable a different out- background, when the fendant’s childhood mitigating come. can sup- New only state could weak re- if only such a it is suffi- port conclusion evidence). contrast, By the Court buttal ciently strong, the known additional aggrava- found no has when prejudice overwhelming. is not aggravating evidence overwhelming, ting evidence is even though mitigating strong. c Visdotti, In light guidarice, of this we now evalu- (holding that there rejec- Court’s ate probability result when the different evidence, preju- including the tion of claim that he was defen- 1024 Strickland, 694, 104 466 at S.Ct. U.S. ‍​‌‌​​‌​‌​​​‌‌‌​‌​‌‌​​​​‌‌​‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌​​​‌‍investigate ing failure by his counsel’s

diced 2052). Supreme Court then The California mitigating evidence present additional in his trial. See steps out three reasonably carried the penalty phase at the Strickland, opinions for by Supreme 104 S.Ct. 2052 Court 466 at dicated U.S. under Strickland at (“[A] prejudice whether evaluating need not determine was deficient before performance penalty phase.11 the counsel’s prejudice by suffered examining the 1 alleged of the aas result defendant defi ciencies.”), whether must determine We to The court first considered to, or “contrary involved this decision was mitigating evidence tality of,” Strickland application an unreasonable trial, mitigating evi at as well what Supreme Court exis precedent or other presented by a could have been dence opinion. tence at time its six-year attorney, on the competent based Pinholster, see 2254(d)(1); 563 U.S. by the referee. report review 182-83, 131 S.Ct. 1388. Williams, 397-98, 120 529 mitigat The court reviewed all 1495. deficiency considering In whether presented, in ing evidence Andrews prejudicial, counsel was In background, family cluding Andrews’s correctly fol California Court Andrews, re Cal.Rptr.2d P.3d at 124 whether, Strickland even asking lowed Meigs and deficient, in Mt. incarceratipn if counsel Andrews’s de were prisons,12 id. 124 Cal.Rptr.2d by any defi prejudiced not such fense Alabama 660-61, 670-71, 52 and mental P.3d at not ciency a different result was because Andrews, evidence, id. Cal.Rptr.2d probable. See In re health reasonably 661-62, 670, observing (quot Cal.Rptr.2d P.3d at 671 argues court failed 12. Andrews’s claim that state the California Su legal apply Meigs, preme experiences correct Mt. is Court failed to his consider determining whether counsel standard for supported by The state court not the record. performance provided at the deficient Meigs experiences at Mt. detailed Andrews's argues phase. Specifically, Andrews that the discussing mitigating evidence that when follow failed noting presented, “[a]t have been Texas, which v. Dretke and Smith v. Tennard Meigs, appalling encountered [Andrews] Mt. mitigating even if it can be hold that evidence detailing referee's find conditions” and “uniquely severe” or does not have a is beatings, ings subjected to “was that Andrews U.S, 274, 287, "nexus” to the crime. brutality, inadequate and sexual conditions (2004); L.Ed.2d S.Ct. 37, predators,” passiveness and small “[h]is 44-45, L.Ed.2d older, target be a physique him to caused (2004). argument misconstrues Cali This protection tougher boys, from whom opinion. In determin fornia separation provided,” and that “Mt. strategic made that counsel could have meaningful Meigs provide any reha failed tangential present decision not opportunities.” re or educational bilitative ways, expressly both the court that could cut Cal.Rptr.2d 52 P.3d at mitigating purportedly evi considered omitted). (internal quotation marks 660-61 face, approach such is not dence. On its expert testimo court also noted that The state holding equivalent to that certain evidence ny drug at Mt. have addressed use mitigating declining per consid se Meigs. 52 P.3d Id. 124 Eddings, 455 er it. U.S. at Cf. Moreover, ,., court's use (“The may sentencer determine its, opinion "prison term conditions” weight given to be relevant ,its report, in the use referee's consistent give it no But [courts] evidence. conditions both in where the term referred to excluding weight by such from their consideration.”). Meigs. prison and Mt. 1025 types of mitigating evidence left similar have conditions it in “no evidence doubt in Supreme prece horrifically been considered Court [that Andrews] endured de id. dent, 124 Cal.Rptr.2d meaning at and degrading P.3d circumstances.” 672-75; hand, Penry, see 109 Id. U.S. On the at the other evidence would 2934; Williams, 395-98, at primarily through 529 U.S. S.Ct. be the testi mony 1495. inmates, former S.Ct. Andrews’s fellow criminal who had' records serious that The Court Supreme California then comparison” could an “draw[ ] unfavorable strength mitigating of this evaluated the Id. Cal.Rptr.2d 473, with Andrews. by considering, among other evidence “Many- at 671. themselves en it things, might be viewed by whether a in prison in gaged brutality while and es Burger, See aggravating. jury 483 U.S. frequency,” caped with also similar some Pinholster, 3114; at S.Ct. 563 U.S. Moreover, Andrews. Id. matter how 201-02, at 131 S.Ct. 1388. The rea court prison pre the conditions evidence was sonably much of concluded that' the evi sented, sympa engendering “[r]ather than dence identified as “was not n thy, could the evidence well rein have conclusively unambiguously mitigat and n of him impression person as a forced ing,” possibility that evaluated who had become desensitized -inured or the evidence could be rebutted used to disrespect violence and law.”13 or disadvantage, that cross Andrews’s ex Id.; Pinholster, 201-02, might the mitigating amination cf. “deflate 1388. Andrews, In re impact” evidence. 670 & n.9. Cal.Rptr.2d 52 P.3d that The claims dissent California reasonably court that jury observed in Court con- was unreasonable have could determined cluding Meigs that the Mt. evidence could

family background his mor not reduce did double-edged constituted' be- sword culpability, given al that Andrews was already cause knew from An- jury “[t]hé non-abusive, family raised situa stable drews’s crimes conviction heinous 124 Cal.Rptr.2d 52 P.3d at tion. prior from stipulated convictions that Bell, 701-02, 670; 535 U.S. at cf. Andrews was' antisocial ‘had become (suggesting that of a normal inured violence and desensitized and ” might way”). youth “cut other Dissent disrespect the law.’ at .1059. reasonably concluded that “[An However, dissent’s conclusion is factu- not suffer drews] a home environment did ally stipulation pre- incorrect. Because his under place crimes jury sented to the did describe the explain resorting standable context underlying facts each of the offenses every to crime time he was released or convictions, prior jury did re In escaped prison.” held hear Andrews a woman hos- 670. P.3d at tage head when gun robbing to her addition, laundry or that the taxi business driver reasonably that the robbery say evi the 1968 heard determined then -regarding prison “[l]et’s conditions shoot him” and dence fired least hand, supra two shots at him. double-edged. prison Ac- On the one application argues 13. Andrews the state court made is a conclusion facts, prejudice an unreasonable determination standard elaborated Strickland and, 2254(d)(2), holding prison .progeny, finding. its a factual see Cf. Pinholster, aggravating. We conditions evidence reject argument, the state court’s because Chism murdered also Wheeler he the California cordingly, violence and evident “considerable of with concluding not err did court also consid Id. The state sangfroid.” double-edged. was prison conditions evidence, that, prose the as rebuttal ered presented the details 'have cution could Bell, 535 history, criminal -prece Supreme Court Andrews’s with Consistent cf. 1843; n.5, Burger, 122 S.Ct. not at & dent, U.S. the California 793, 107 which S.Ct. from mitigating at weight of the 483 U.S. the only assessed “ag might Andrews was jury the conclude jury but likely impact on a its evidence and violence,” In to desensitized gressive and aggrava of the weight the also evaluated 473, 52 Andrews, at Cal.Rptr.2d P.3d re trial, as addi at as well ting. evidence jury might also have concluded 669. The that could have evidence tional rebuttal criminality” showed “pattern that See Williams, U.S. at introduced. been “would, if danger to others pose a Belmontes, Andrews 1495; 397-98, 120 S.Ct. imprisonment.”14 to life were sentenced he Turning 20, 24-28, 130 to 383. S.Ct. Also, to mul references Andrews’s Id. the crimes, the of Andrews’s the circumstances prison might from been stated,that escapes tiple “inflammatory.” Id. disregard a “callous murders showed Andrews, 124 In re Cal. human life.” Supreme Court Finally, the California Strickland, 671; Rptr.2d prosecution that reasonably concluded cf. 2052; 674, 700, 104 Bel S.Ct. 466 U.S. at mental presented its could have own 15, 26-27, montes, rebuttal, 558 U.S. experts and could have health to not react impulsively did 383. An Andrews mental health evidence-to used the hand; rather, he got out that on cross examina disadvantage situation drews’s calm victims in a Cal.Rptr.2d 52 P.3d interacted with Id. tion.. torturing findings kill normal The court the referee’s manner before 670. noted pould Andrews, that, Cal.Rptr.2d prosecution experts have testi re ing them. In intelligence normal more than that Andrews had 671. He also did fied P.3d at damage, but had raped so not suffer brain He and did simply kill the victims. Id.; Pin her, personality traits.15 murdering antisocial before Brandon domized cf. (not Burger, 483 U.S. at 107 S.Ct. 3114 argues con that the state court's 14. Andrews n petitioner’s gave of a troubled rise to the that evidence evidence clusion that ' "suggest background also family could violent dangerousness was an un inference of future jury tendencies” that could affect adverse He ar determination facts. reasonably con ly). court stabbings, laundry Because gues prison rob found future during could have conditioning juiy cluded that bery, violence his to n mitigating evi dangeropsness even had the support such an prison experiences do introduced, the state court did inference, been dence mitigating pointing facts found precedent unreasonably apply Supreme Court referee, including in some inci ''by might weighing impact a the evidence how dents, defending against himself was Andrews jury- threatening him. We been inmates who had these disagree. court considered The state (such pris argues court unrea mitigating that the state facts Eddings, prey sonably applied 455 U.S. at rather than on Andrews was "the defense), concluding diagnosis self see In re predator” acted in Andrews, personality miti disorder 52 P.3d at of antisocial point, 66.0-61, gating. Eddings not on because it reasonably concluded that the merely prevent jury held that a court cannot was conditioned evidence that Andrews hearing such evidence. The state experiences during prison violence circumstance, unreasonably Eddings, apply did not- mitigating, see aggravating, not holster, crimes, given ambig cumstances of the uous nature some was the state court unreason 1388. Nor potential damaging and the substantial concluding experts’ able re rebuttal.” 124 Cal.Rptr.2d instance, could For testimony backfire. Indeed, P.3d at the California that the “compelling” court noted testimo Supreme Court concluded that re “[w]ith expert ny psychiat from one Andrews’s spect question of prejudice” witnesses, opining pris ric record jury “contains indication the him experience caused to react petitioner inclined sentence im life insults, perceived cause a rage prisonment might persuad and have been jury to conclude that unable Andrews “was by or mitigation ed alternate additional impulses slightest to control lethal on the Cal.Rptr.2d 473, Id. evidence.” Cal.Rptr.2d Andrews, provocation.” In re Accordingly^ Su 675-76. Pinholster, 670; 52 P.3d at cf. 47 preme reasonably Court that concluded 201-02, 131 Finally, 563 U.S. at S.Ct. 1388. deficient, even if counsel were of evi presentation the mental health prejudiced not by any such defense given prosecutor dence would deficiency. Id. Because this objec not an the cir opportunities repeat to additional of Strick tively application unreasonable as An cumstances these crimes as well land, granting the district erred in Andrews, In re criminality. past drews’s on this Andrews relief issue. Cal.Rptr.2d P.3d at 670. Relying Supreme on the Court’s deci- Porter, Williams sions in and argues Supreme the California evaluating ag mitigating and After on of prejudice Court’s the issue decision evidence, the California Su gravating application was an unreasonable of Strick- preme re-weighed it Court and assessed land.16 We disagree. that, reasonably probable whether was Williams, police In found any perform in the absence deficient man in his dead residence. U.S. at counsel, by “would ance sentencer 1495. There was no indication aggra have concluded balance local officials struggle so concluded vating and circumstances did poisoning of death was alcohol cause Strickland, not death.” 466 U.S. at warrant defendant, the case. Id. and closed Andrews, 695, 104 2052; see In re for who arrested had been unrelated Cal.Rptr.2d P.3d at 671-75. offense, con police wrote letter applied state court the relevant by a man him fessing striking he had killed An and precedent, Court concluded back argument, the chest and after an counsel’s “prejudiced by drews was police they thus to a “alerting crime other of a on rejection premised defense evi discovered, wise never have ex [Andrewsj’s the Ala dence actions, coop for pressing his remorse and upbringing, prison .experienced, bama he Id. erating police conditions after the. that.” n.1, light mental health in of the-cir and his 367-68 & S.Ct. 1495.17 by precedent, primarily ob on Williams and Porter. Because other non-binding, serving other cited that evidence that Andrews had anti cases Andrews áre both, analogous, might factually him or personality social disorder make we do jury. sympathetic to them here. less In re address 52 P.3d at 670-71. Rehnquist’s 17. The relies on Justice dissent n concurring dissenting opinion Andrews cites other 16. While cases, Williams, argument aggra- Circuit his focuses which described additional Ninth mentally retarded.” Id. at pre “borderline began The defendant’s only a to “seek phase week 1495. Counsel also failed pare for trial, counsel did not recording then even prison [defendant’s] before records juvenile and social ser pris- defendant’s review to crack a helping commendations incorrectly counsel- vices records because returning guard’s drug ring law barred access that state believed wallet, testimony prison or missing 373, 395, 120 S.Ct. records. Id. these as [defendant]- officials who described to discover thus docu 1495. Counsel failed in a likely act among ‘least the inmates “graphically deseribe[d] [defen ments that violent, way.’” dangerous provocative nightmarish Id. childhood.” dant’s] addition, to return counsel failed evidence showed 120 S.Ct. 1495. The had witness who call of a phone character imprisoned had “parents been defendant’s testify “that had [de- he visited offered to neglect for the [defendant] criminal frequently [defendant] when fendant] been se siblings, that [defendant] ministry prison part of a incarcerated father, by his verely and beaten repeatedly ‘seemed program, [defendant] custody that he had been committed regimented struc- thrive a more years of the social for two services bureau environment,’ that [defendant] tured and (including during parents’ incarceration degree he proud carpentry of the was home), in one stint and an abusive foster in prison.” earned while then, from parents after his were released weight of sentencing, Finally, “[t]he at parents’ returned to his prison, had been ... closing was devoted defense counsel’s custody.” that Id. The records revealed to explaining to it was find difficult feces on home had urine and defendant’s why jury spare [defen- reason should floor;. so parents “were defendant’s 369, 1495; see 120 life.” Id. at S.Ct. dant’s] intoxicated, find they could not clothes n.2, 1495 (quoting 120 also id. at 369 S.Ct. children, to they put able nor were “ T telling jury will defense counsel as them”; children “[t]he the clothes were very you too that it is difficult to ask admit dirty on under all and none them had maybe has mercy to man who to show pants”; in instance children “[t]he and one I Hospital, mercy as doubt put in four shown much Winslow himself. them, time, definitely un by thought were about very seriously that he much whiskey.” Id. 395 the influence of at der in bed- mercy [the victim’s] when he was n.19, 120 1495. S.Ct. Admittedly night him.... room that very get us ask it is difficult mitigat- introduce

Nor did other mercy, has you give this when he man’ ing readily apparent from the himself.’”). of it The Su- record, shown so little the fact that was such as defendant Court, Dissent at 1056— vating beyond by see the crime itself. See factors 57), clearly established (stating jury heard constitute Dissent 1057 at Williams, precedent. at savagely 529 U.S. beat an el Courj; 412, "Williams woman, cars, (stating Only the 1495 derly fire to a S.Ct. two set stole home, "holdings, opposed during robbery, to the set Court’s stabbed a man clearly established Federal city jail, having constitute fire to and confessed dicta” - U.S. -, 135 S.Ct. Frost, law); strong urges Glebe v. choke other inmates 429, (2014) ("As 431, we jaw”) (citing L.Ed.2d prisoner’s a fellow break however, Williams, repeatedly emphasized, circuit 529 U.S. at S.Ct. iclearly C.J., precedent does not estab concurring part (Rehnquist, in and dis constitute law, AEDPA, Su Federal as determined senting neither lished part)). in But under ” preme (quoting U.S.C. Court.’ concurring dissenting opinions, nor cir nor 2254(d)(1))). (particularly one reversed court decisions cuit ap at preme Although prosecutor held that the 670. in wrong in plied legal- standard deter Williams could have introduced rebuttal prejudice mining required because “a evidence that defendant had been “thrice inquiry into separate juvenile system—for fundamental fair committed aid ness,” 393, 120 id. even abetting larceny S.Ct. when he when was old, petitioner years showed there was a reason for pulling a false fire alarm probability outcome, able a different when id. he was and for breaking and 393-95, Therefore, 15,” entering S.Ct. he when was applied Strickland de novo to these S.Ct. such evidence has much 397-98, 120 facts, 1495; id. at see weight compared also less to Andrews’s rob Pinholster, bery-murder, 563 U.S. at hostage taking, history of escapes prison, Andrews, In re The state court here discussed Cal.Rptr.2d 52 P.3d at 675. Finally, length reasonably Williams distin circumstances crime Williams guished having “substantially it as dissimi less were brutal than rape lar facts.” In re triple murder. Id.19 Because the facts of Williams, 52 P.3d at for in dissimilar, Williams are the Supreme stance, the counsel could have in defense Court’s determination Williams that strong troduced. evidence re character counsel’s ineffective assistance preju garding his exemplary prison, conduct dicial does not make the state court’s con 120 S.Ct. but no trary conclusion here unreasonable. See good comparable evidence of character Richter, 770; 562 U.S. at present case.18The de Pinholster, 202-03, 131 see also 563 U.S. at “nightmarish fendant’s childhood” S.Ct. Williams, 395, 1495, at 120 S.Ct. U.S. argues far Andrews relatively was worse also the California than see Court’s family background, stable In re decision was unreason- An drews, 473, able Cal.Rptr.2d light Although in of P.3d at 674. Porter. Porter in years The defendant was “border was decided after the California Williams Su- retarded,” 396, case, preme line in mentally opinion give this U.S. at Court’s we (internal quotation prejudice consideration, S.Ct. 1495 its analysis careful omitted),' marks prosecution while prejudice Porter considered because under the AEDPA, could have An provides evidence that and therefore direction mentally impaired, was' not for determining drews but what constitutes an unrea- traits, rather had personality application prejudice antisocial prong In sonable re -of AEDPA. Strickland under Neverthe- points ap- 18. Andrews to evidence he sent our role. misunderstands We must deter peared adjust prison to well to Alabama mine whether the the California Court’s system permitted, application when objectively conditions but this of was Williams unrea 2254(d)(1), the weaker than in observation evidence sonable 28 U.S.C. under not 396, 120 Williams. See 529 U.S. S.Ct. we whether reached different would "In under de novo review. for a result order engage state court’s to be an 19. The dissent fails decision unreasonable to these dis with Instead, application Supreme] tinctions and Court’s [the the evidence issue. case law, review, ruling objectively dissent novo bе conducts a must unreason de and able, aggravating wrong; merely concludes not even clear error evidence will ad — LeBlanc, Virginia mitted trial and the evidence that could suffice.” —, —, against have been offered in rebuttal Andrews S.Ct. L.Ed.2d (internal (2017) greater aggravating quotation "no was than the evi 2017 WL 2507375 omitted). dence Williams." Dissent at 1057. The dis marks determined that help less, that Porter does conclude we unreasonably applied Strick- state court here. was not that the defendant holding land Porter, was convicted defendant failure introduce by counsel’s prejudiced first-degree murder counts of two held The Court mitigating evidence. boy girlfriend and her former shooting his strong, was evidence 130 S.Ct. 447. friend. 558 U.S. aggra- weight of the evidence while that' “this was a crime suggested Id. The Court was less substantial.' vation “that was [defendant] passion” court was unrea- also that the state held just hours before the heavily drinking discounting the defendant’s sonable 38, 130 447. The Id. at murders.” murders, military service. Id. at abuse and of both childhood convicted was defendant n yvas It the death sen 130- “unreasonable S.Ct. 447. jury recommended military 447. The state service that [defendant’s] Id. conclude tence. affirmed, but struck the supreme inconsequential pro- would be reduced atrocious, aggravating or cruel “heinous, jury simply portions, because “consis- factor,” because went [defendant] also have learned hypothesis [defendant’s] tént with Id. than one occasion.” more AWOL crime that passion, a crime (internal quotation marks citation deliberately extraor was meant omitted). that “[o]ur The Court reasoned Id. at 130 S.Ct. 447. painful.” dinarily according long tradition of Nation has leniency recognition their represented himself veterans dur The defendant service, fought on id. at whó phase, especially those ing guilt did,” only short “had one meet front lines as' [defendant] regarding [defendant] exten- [defendant’s] that the “relevance As the 130 S.Ct. 447. phase,” id. at experience only that he is not sive combat explained, “counsel did not Supreme Court hardship honorably extreme served under step interviewing first take the even conditions, also that the but and gruesome As a witnesses or requesting records.” might mitigating the intense jury find result, failed the defendant’s counsel toll that and mental and emotional stress “(1) [defendant’s] about present evidence Id. at took on [defendant].” combat in of the most military service two heroic otherwise,” the “To S.Ct. 447. conclude of the Kore critical—and horrific—battles to engage opined, Court “reflects failure 41, 447, War,” at Í30 S.Ct. which an id. actually went [defendant] with what Hearts, Purple the Com him two earned 44, through in Korea.” Id. at 130 S.Ct. 447. Infantryman Badge, and other decora bat Further, state Court held that the the 447; “(2) tions, 35, his id. at 130 S.Ct. to discount court was “unreasonable normality upon struggles regain his re of the [defendant’s] irrelevance evidence 447, wár,” at 130 S.Ct. turn id.. childhood, especially' abusive when drinking, id. led to excessive at which sali- history may particular kind of “(3) 447; history his childhood of 130 S.Ct. jury evaluating [defendant’s] for a ence id, abuse,” physical for- relationship [his in his behavior subjected to he was routine during which girlfriend].” Id. at 130 S.Ct. 447. mer regularly watched his beatings and father reasoning in Porter Court’s does mother, 33,130 447; The id. at beating his S.Ct. conclusion that the Califor- not lead to the “(4) abnormality, difficulty his brain and unreasonably applied Supreme nia Court reading writing, and limited school and here. 41,130 prong of Strickland prejudice the ing,” id. at S.Ct. 447. Porter,- -447, in Cali- the court the while here California Unlike state the Su preme miti- considered all Court found that fornia Court Andrews’s brutal rape Brandon, strangulation in the did of gation evidence record and and and shooting strangling fail or “discount irrelevance” of deaths consider significant victims, See id. The most other evidence. im- evidenced a “callous disre Porter, gard in mitigation evidence for human portant -life” were accom plished in “the criti- the defendant most with “considerable violence ev served Korean sangfrоid,” cal—and horrific—battles of the ident In re 124 Cal. War,” Rptr.2d see id. is far 52 P.3d at 671.20 Because stronger mitigation factually .case, than the at Porter distinct from this Moreover, did, issue here. it bearing has little on question .the wheth life, have an is no er unreasonably applied abusive home and there the state court prejudice that his murders in this case prong Strickland.21 crimes of passion were which childhood Visciotti, Supreme Woodford “particular for a abuse would have salience provides case that direction determin- id. at jury” evaluating behavior. See AEDPA what under constitutes an un- 43,130 S.Ct. 447. Strickland, application Further, closely Visciotti, aggravating point.22 circumstances more weighty Supreme in Porter were and less state different considered a court’s Indeed, rejection than those case. Porter of a defendant’s this Strickland claim. 26,'123 noted that the The state had stricken S.Ct. 357. state court “heinous, atrocious, aggravating weighed evidence, the mitigating cruel” had including factor because the record damage, the evidence defendant’s brain family hypothesis background, possible difficult was “consistent with disorder, passion, against not a the aggravating Porter’s was a crime seizure factors, deliberately' including’ was meant the circumstances of the crime (the painful,” killing 130 crime extraordinarily id. cold-blooded two vic- ' 'by prosecutor pre- dissent claims that lished law as determined , 2254(d)(1). strong aggravation” sented "a case in Port- 28 U.S.C. Court. See er, and therefore the conclusion in must Porter apply in this Dissent at 1058. unlike case. But (cid:127) 22.Although after was decided Visciotti us, case before' held that the sen- Porter Court’s decision tencing judge misjudged weight of the case, give we it careful consideration because evidence, aggravating weight "the evi- question the AEDPA whether a addresses aggravation dence in is not as substantial adjudication- court’s ineffective an as- Porter, sentencing judge thought.” of counsel sistance claim was unreason- aggravating U.S. at 130 S.Ct. 447. application supra able Strickland. similarly cannot mini- in this case 1019-20; 1057-58 & see also Dissent at n.9 mized. opinions (acknowledging Supreme Court that analyzing AEDPA to a are relevant circuit urges apply us deci 21. Andrews also our analysis, regardless whether court's AEDPA (9th Ayers, sion in Cir. Doe v. F.3d 425 opinions were before or after those decided 2015), where we that the defen concluded court). opinion the reasoned of the state last prejudiced dant was deficient counsel’s highlights The dissent that Visciotti was "de- performance failing investigate pres Supreme the California Court's evidence, cided mitigating including ent after case,” decision in this Dissent at but rape prison. pertinent Doe is not to our acknowledgment given dissent’s our the analysis pre-AEDPA it is case here a because opinion Supreme Court consideration that does not whether examine the meaning proper, the analyzing AEDPA is court’s conclusion was unreasonable. See id. emphasis is clearly at Nor is Doe estab this unclear. n.31. during robbery) probability criminal able that the sentencer would tims and his stabbing a knifing man aggravating balance of history determine that “the “trying protect bed not pregnant im woman factors did warrant the baby,” her unborn concluded penalty.” Id. at position the death prejudice. had suffered (internal defendant quotation 123 S.Ct. 357 marks 25-26, 123 defen id. at After the omitted). objectively This decision was petition, district habeas dant filed a unreasonable, we are and therefore bound relief, We granted we affirmed. “[wjhether or not we conclude that perform that counsel’s deficient reasoned conclusion,” reach we can would the same “aggra prejudicial, ance was because say Supreme the California Court’s overwhelming.” Id. vating were not factors application conclusion an unreasonable 21-22, 25, 123 S.Ct. Vis (quoting at 27, 123 of Strickland. See id. at 357.23 Woodford, 288 ciotti v. F.3d recognize The purports dissent (9th 2002)). Supreme re Cir. The Court “our court decisions is deference to state “under explained It versed. review,” its habeas at zenith on federal 2254(d)(1), enough it is not to convince to apply Dissent at fails but that, indepen federal habeas court its Here, Supreme standard. the California ap judgment, the state-court dent decision there was not determined 27,123 incorrectly.” plied Strickland Id. at probability that outcome S.Ct, (internal quotation omit marks different had the evi would have been ted). Rather, federal habeas scheme “[t]he hearing at the reference dence adduced responsibility primary leaves with the evidence) (along with rebuttal been au judgments, for these state courts presented to In re jury. only federal-court intervention thorizes at 675-76. objectively when a state-court decision is cannot—explain The dissent does not—and It is not that here.” Id. unreasonable. why objectively is an “[wjhether court’s conclusion sum, or not the Court held that then-existing application the same as the unreasonable we reach conclusion Court, Supreme California we think at dissent precedent. contrary Williams, 1056-58, very that the state points least court’s but Dissent assessment was ‘unreasonable.’” explain flaw in makes no effort to Court’s, Bell, (quoting “principled California omitted). 1843) (internal quotation marks Murdoch,. of this distinction” case. 991; supra Nor F.3d see at 1028-30. Visciotti, Here, state court dissent-meaningfully does the engage with reweighed mitigating evidence dispute facts of or against Porter numer the brutal circumstances See su prior ous distinctions above. crime and Andrews’s criminal histo addressed 1029-31; ry, pra there reason Dissent 1057-59.24 and determined was no mistaken, our see fact decision in Dissent at this case unanimous, Davis, originally see Andrews v. because were cases decided these after 2015), (9th Cir. F.3d and there have Supreme Court ruled. we While legal develop- relevant been no factual always Court’s consider time, since that our ments underscores con- AEDPA, applying Wiggins both reasoning in jurists fairminded hold clusion that that prejudice prong Rompilla examined the objec- the state court’s determination not was Wiggins, of novo. 539 de U.S. at Strickland tively unreasonable. 534, 2527; Rompilla, 123 545 U.S. at S.Ct. S.Ct, Therefore, 390, these do 125 cases Wiggins 24. The dissent’s reliance on provide guidance Rompilla support analysis, on its not the issue before Strickland

1033 unreasonable,” perti tively id., fails to dissent the considering address “the totality, which “.‘is not whether of evidence question, judge nent the before the Strickland, jury,” 695, court court’s federal believes the state 466 U.S. at 104 Here, apply under the stan rather than determination’ Strickland S.Ct. AED- deference, incorrect but that de PA steps dard ‘was whether the dissent into the dissenting sub of of justice termination was unreasonable—a shoes the the Cali stantially case, Knowles higher Supreme threshold.’” v. fornia in this see Court 111, 123, 1049, 1050-52, 1053-54, 1057-58 S.Ct. Mirzayance, Dissent at U.S. 1411, (2009) Indeed, (quoting applies 173 L.Ed.2d 251 de Strickland novo. 465, 473, Landrigan, the makes its Schriro U.S. even factual dissent own 1933, (2007)). (dis findings. 167 L.Ed.2d 836 at S.Ct. Dissent Instead, that counting dissent concludes the substantial rebuttal evidence Supreme unreasonably presented been California Court would have at sen ground applied tencing prosecutor Strickland based on the dissent’s on that the “at juror” least one would trial not own view Andrews’s would intro “spare if be inclined to Andrews’s life” duced rebuttal witnesses had defense Meigs evidence abuse at Mt. of prison Andrews’s 1046; conditions, see presented. at id. Dissent a factual conclusion contrary been approach This 1059-60. at of the referee the-determinations wrong Court, novo even re be under de see In re An Supreme drews, on a The dissent’s limited focus sin view. take

gle piece 666). into fails review is Such erroneous under totality account taking AEDPA. In approach, de novo aggravating evidence the record. See grapple dissent failed “the has Strickland, U.S. S.Ct. only question that matters under context, suppo 2052. In this the dissent’s 2254(d)(1),” § Lockyer, 538 U.S. at juror sition that ‍​‌‌​​‌​‌​​​‌‌‌​‌​‌‌​​​​‌‌​‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌​​​‌‍would have beеn one appli the state whether court’s amounts to little than moved clearly more cation of established outcome, possibility a different mere precedent objectively Court was unreason has where made Court able. a different “[t]he clear likelihood rejection the state Because court’s substantial, just must con

result be not penalty phase ineffective assis- Richter, ceivable.” U.S. at not contrary tance counsel claim was Strickland, (citing 466 U.S. at S.Ct. 770 application or an of Supreme unreasonable 2052). grant precedent, we not relief glar 2254(d)(1). The dissent’s errors are more even on this claim. We therefore AEDPA has ing on The Court told review. contrary reverse the district court’s con- frequently “[i]t us emphatically clusion. court, enough that a federal habeas D legal independent ques

its review of tion, left firm with a conviction decide claim Because we Lockyer, prejudice grounds, we need was erroneous.” address (internal arguments quota parties’ regarding 123 S.Ct. 1166 U.S. whether omitted). Rather, tion marks and citations deficient performance counsel’s was Strickland, 466 objec penalty phase. court’s the state decision “must us, application clearly a state court's whether determination unreasonable estab- deficiency precedent. prejudicial counsel’s lished

1034 (Claim 25) that certified it to the his sole say, 2052.25 Suffice claim injection proto use its lethal California’s analy AEDPA to conduct an dissent fails Eighth him would violate his col to execute Supreme Court’s de sis of the California rights. According the dis Amendment attorney was termination that court, injection the California lethal trict- Instead,- as under Strickland. deficient Kentucky lethal in protocol mirrored noted, supra at 1012 previously have we by Supreme jection protocol upheld 'the n.5, n.6, n.3, n.4, 1013-14 against Eighth Amendment chal n.9, n.7, en n.8, 1016 the dissent 1014-15 Rees, 35, in v. lenge Baze of both the facts gages in novo review de (2008). 170 L.Ed.2d 420 'issue, see at 1047- Dissent and the law light in of Baze’s rul court reasoned not clear were relies on cases'that ing, impossible it at the time of California ly established challenge on to California’s succeed see, e.g.,' ruling, Dissent Court’s injection protocol, and therefore re lethal deficiency on (relying 1052-53 jected this claim. Porter, analysis of which was decided in At the time the district court ruled years Court’s after California July did not have a lethal California opinion in this case tíie issue and reviewed explained As injection protocol place. of, novo). reaching its And de deficiency Corrections, Department' Sims v. “any competent novo conclusion de Department Corrections and presented” Mt. attorney would (CDCR) responsibil- has the Rehabilitation 1054,. evidence, Meigs Dissent at dis ity developing procedure for execu- doubly judi ignores “the deferential sent by injection. App. 4th tions lethal Cal. applies to a Strickland cial review that 1059, 1064, (2013). Cal.Rptr.3d In 2254(d)(1) claim evaluated under 2006, a federal court December district standard,” Mirzayance, 556 U.S. procedure ruled CDCR’s- violated Accordingly, the dissent 129 S.Ct. 1411. prohibition against Eighth Amendment' regard any questions fails to raise serious (citing punishment. cruel and unusual analy ing the California Court’s Tilton, F.Supp.2d Morales deficiency prong. sis Strickland’s 2006)). (N.D. .Although the CDCR Cal. substantially protocol its revised Ill court' invalidated the revised trial Having addressed state’s ground procedure violated turn cross-appeal, procedure we now the state’s administrative act. protocol place no new court’s dismissal M26 Because appeal the district lethal,injection promulgat cutions until it 25. We not consider also need additional state, 1066-67, put by the aggravating evidence regulations. forth Cal. ed Id. at new deny disputes, and therefore which Andrews injunction upheld on Rptr.3d 409. This judicial notice of these motion for 1083-84, the state's appeal. Cal.Rptr.3d Id. at 409. materials. additional propоsed single-drug CDCR a new lethal injection protocol in November Pursu promulgated losing appeal, CDCR 26. After its Administrative ant California's Procedure effect on Au procedure, new which took (APA), mandatory pubr CDCR held Act Sims, App. 4th at gust 216 Cal. responded period, lie comment to each sub response comment, necessary stantive madé again legal challenge, a trial newa changes, proposed pro resubmitted the proce injection CDCR lethal (cid:127)invalidated the public No tocol for comment until additional comply ad with the state dure for failure Gov, vember 2016. See Cal. Code permanently procedure ministrative act 28, administering §§ On December enjoined exe 11346-48. the CDCR from the n uncertifiedclaims ruled, at the time the district court on based cumulative er unripe, claim was and the district court ror and factual innocence. Payton in entertaining it. v. erred We first turn to question Cullen, 890, (9th 2011).27 658 F.3d Cir. whether Andrews obtain must a COA for may challenge Andrews renew his when these 2253(c).28 § claims under 28 U.S.C. finally approved protocol. California its has analysis Our of this question.is governed by Jennings Stephens, v. which considered whether a petitioner habeas who obtained

IV relief the district .in court could defend this also raises several uncertified judgment on grounds alternate without following legal claims based on the theo taking a crossrappeal obtaining a (1) ries: delay unconstitutional between — —, 793, 798, COA. U.S. 135 S.Ct. Lackey sentencing v. execution under (2015). 190 L.Ed.2d 662 Jennings held Texas, 1045, 1421, 514 U.S. petitioner habeas such circumstances (1995) J., (Stevens, L.Ed.2d statement need cross-appeal not take a long so as the certiorari); (2) respecting denial ineffec petitioner attempt did defend the tive assistance trial counsel under district judgment theory court’s on a Strickland-, (3) failure disclose material enlarge rights seeks “to or his- lessen the exculpatory testimony evidence and false State’s under judg the District Court’s Brady Maryland, 83, v. under 373 U.S. (S.Ct. granting ment Id. habeas relief.” 1963), 10 L.Ed.2d 215 Further, 2253(c) Illinois, “§ 801-02.29 Napue v. ap because plies only appeal’ (1959); (4) when ‘an- is ‘taken to 3 L.Ed.2d id. appeals,’” court of (quoting destruction evidence in at 802 violation of due Trombetta, 2253(c)), process v. petitioner under who does not have 81 L.Ed.2d take a cross-appeal does not need (1984), COA, and its progeny. id. rule, He also Jennings Applying raises not (c)(1) California Office of justice Law judge Administrative Unless a or circuit issues (OAL)rejected proposed injunction appealability, appeal may lethal certificate of protocol may appeals not be taken from— and stated that revisions (A) corpus the final order in a habeas days. resubmitted within 120 In Cali proceeding in which the com- approved detention Penalty fornia voters the Death Re plained process of arises out of issued Savings (Proposition form and Act of 2016 court; 66), State provide which amended state statute to (B) proceeding the final order in a under apply APA does not to lethal section 2255. injection protocols. The California (2) appealability may A certificate of issue stayed "implementation provi of all (1) paragraph only applicant under if the Proposition pending sions of 66” the resolu showing has made a substantial of the deni- litigation challenging tion of implementa its right. al — of a constitutional Brown, Cal.5th —, Briggs tion. (3) appealability The certificate of under (2017). 387 P.3d (1) paragraph specific shall indicate which satisfy showing required issue or issues light holding, of this we need reach (2). by paragraph Ahdrews’s claims that the district court erred denying evidentiary hearing him an on 29.Jennings was nonetheless careful to note declining stay Claim 25 or in this claim to petitioner defending judgment that a on rely allow him to appeal would be "confined to those alterna- record-, Morales. grounds present tive he basis, simply argue any regardless alternative 2253(c) 28. Section origin.” Jennings, states: of its 135 S.Ct. at 800. . grant But none Andrews’s uncertifiеd judgment court’s that the district ed judg- court’s penalty- support the claims the district petitioner the relief release, guilt him of his a new trial entitled “to ment. Five claims seek phase his commutation, (his Strickland, or the resentencing, Br'ady/Napue, phase trial Accordingly, option.” Trombetta, claims, Id. at 799. State’s error cumulative claim have “[a]ny potential claim).30 would enti a As ex- factual innocence sentencing to a new petitioner] tled [the Jennings, in plained because Andrews won to proceeding could have been advanced resentencing, cross-appeal he must take a (cid:127) id. at ‘urge support’ judgment,” ... a to raise a claim that and obtain COA (last (quoting original) in alteration Lackey in new trial. His claim results Id. a Co., 265 Ry. Express Am. United States v. ruling cannot consti- seeks a that the state 435, 44 68 L.Ed. S.Ct. U.S. impose penalty on tutionally the death (1924)). cross-appeal nor a Neither a COA him. district court’s order Because the By con required. would be Id. at 800-02. to gave right the state the seek death trast, won applicant who has “[a] habeas trial, An- phase penalty penalty at a new take a resentencing required be would Lackey innocence drews’s and factual rejected cross-appeal in order to raise a [rights] seek to claims “lessen State’s a Id. claim result in new trial.” that would grant- judgment the District Court’s under applicant a has won at 800. “if And habeas ing habeas relief.” Id. at 798. Under Jen- below, a claim his retrial conduct nings, must'bring cross-appeal Andrews a beyond constitutionally power claims as and obtain a COA raise these cross-ap punish require State well.' cases, peal.” -In such a COA would both jurisdiction to lack consid We required. See id. at 802. also been claims we determine er uncertified unless Here, at the district Andrews won relief made a Andrews “has substantial theory on his of ineffective based showing of a constitutional the denial of *during penalty of counsel assistance right” grant 28 U.S.C. COA. or- phase of his trial. The district court 2253(c)(2); Rule see also Circuit Ninth shall, “the dered that State (“Uncertified 224(e) issues raised and des entry of this days within 120 ignated petitioner’s opening brief] will [in Judgment, grant a new either Petitioner to.expand a motion construed as trial, penalty phase or vacate the death COA....”). petitioners must make Habeas sentence and resentence the Petitioner jurists could “showing law and accordance with California matter, (or, agree for that debate whether United States Constitution.” Accqrdingly, that) been re petition should have rights judgment this under or that the solved a different manner or penalty for a trial phase were new adequate issues were to deserve time, An- resentencing within a fixed encouragement proceed further.” Slack urge any pres- claim potential drews McDaniel, v. U.S. him to ent in the that would entitle record (2000) (internal quo L.Ed.2d 542 phase resentencing or a new trial omitted). marks Because the statute tation taking cross-appeal obtaining or without jurisdictional,“[t]his question See id. at 800-02. threshold COA. petitioner cognizable) on would entitle a to a While Court has ruled Collins, guilt phase question freestanding v. claim of new trial. Herrera whether a 390, 403, habeas, 405, 417, cognizable 113 S.Ct. factual innocence is’ U.S. (if (1993). suggested L.Ed.2d 203 that success on such a claim has 2015). motion, be decided consider granted without ‘full or should We legal adduced ation bases respond. factual dered the state ” Davis, v. the claims.’ Buck support in — brief, In his that he stated —, 759, 773, 197 U.S. raised claim the district court as (2017) (quoting L.Ed.2d Miller-El Claim Claim 26. In ar- Andrews had Cockrell, 322, 336, 123 gued executing him years after 22 (2003)). 154 L.Ed.2d 931 As the death row would be cruel and unusual Miller-El, than Court directed rather punishment Eighth violation “[deciding appeal,” the substance of an Amendment and would serve no retribu- 342, 123 1029, “look to 537 S.Ct. we U.S. tive penological or deterrent purpose. of AEDPA application the District Court’s Claim 26 also asserted Andrews did claims,” id. at petitioner’s constitutional any unnecessary delаys, cause but 336, 1029, light 123 in of a “fair S.Ct. merely sought vindicate his constitution- record,” 345, of id. interpretation al rights system delays. that produced in a 1029, and ask “reason 123 S.Ct. whether exhausted this by raising Andrews claim jurists able would the district court’s find Court, to the which of the constitutional claims assessment de it. summarily denied 338, wrong,” or 123 batable id. at S.Ct. . rejected court on district this claim specified the Court 1029. While has ground has procedures may in merits on there appropriate “what be case,” “employed every procedures “any been no of in support demonstration stage the COA should be consonant with the in American constitutional or tradition Buck, inquiry.” the limited nature of the [Supreme precedent propo Court] for the at 774. 137 S.Ct. sition that can of a defendant avail himself appellate the panoply pro and collateral

A complain then his cedures when execu and claim We first consider tion delayed,” quote Knight v. a Eighth his execution violate Florida, 990, 459, 120 145 528 U.S. S.Ct. delay due to long Amendment be (1999) (Thomas, J., concurring L.Ed.2d 370 his An tween sentence execution. and certiorari), in by a relied on two denial open did not raise in this claim his drews cases, Mahoney, Ninth Circuit Smith v. ing appeal, on to file brief but moved a (9th 978, 2010), 611 998 F.3d Cir. claim supplemental raising brief after Ornoski, (9th 946, Allen v. 435 F.3d 958 holding a court a issued decision district 2006), no Supreme Cir. evidence that Georgia, that under Furman v. 408 U.S. supports a of un precedent claim (1972) 2726, 33 346 L.Ed.2d delay. constitutional Gregg Georgia, v. 96 428 U.S. argues On de- appeal, -Andrews that the (1976), 49 Califor S.Ct. 859 L.Ed.2d lay carrying in out the death sentence penalty death system nia’s violated makes death unconsti- California’s Eighth “dysfunc Amendment its because applied face tutional both its and as tional administration” resulted “inordi discussing in rea- him. After detail Jones’s unpredictable” periods delay nate soning conclusion that the California execution, do before such executions unconstitutional, penalty system death pur serve retributive deterrent argues jurist that no fairminded Andrews arbitrary. Chap pose and will be Jones v. disagree with such conclusion F.Supp.3d pell, (C.D. case, 2014), continuously he has sub been Cal. rev’d nom. because Davis, (9th Jones v. 806 F.3d Cir. sentence for more confined under death presented” years, delays “fairly and the are caused the claims be than court, outside his control. by factors courts an allowing state the state separate statements indi points also to act Id. at 1318 “opportunity on them.” justices questioning vidual (alterations quotation marks internal constitutionality delay of the inherent omitted). To in state fairly presented See, e,g., cases. capital Muhammad (1) court, claim must “a state include: — U.S. —, 134 Florida, S.Ct. facts ment that entitle petitioner (2014) J., dissenting (Breyer, L.Ed.2d relief,” Netherland, Gray v. 518 U.S. certiorari); Bre Johnson v. from denial 162-63, 116 S.Ct. 135 L.Ed.2d desen, 1067, 130 (2) (1996), “to citations either (2009) J., (Stevens, joined by L.Ed.2d involving legal or state federal case J., Breyer, respecting statement denial of a federal constitutional viola standard for certiorari); Lackey, tion,” McFadden, Castillo v. 399 F.3d J., (Stevens, respect statement 2005). (9th has not Cir. “A claim been certiorari) (stating that denial fairly if factu new on death years claim that his 17 prisoner’s allegations fundamentally al alter either. pro the Eighth row violates Amendment’s by legal already claim considered against punish and unusual hibition cruel courts, place signifi or in a state the case foundation,” “not without ment evidentiary cantly stronger different and encouraging and federal courts than it was courts posture when the state issue). consider Dickens, it.” F.3d at 1318 considered 740 claim, we can we Before this address (citations quotation marks internal procedural consider hurdles. must several omitted). Two claims distinct and must are matter, threshold did not As a separately if claims are exhausted opening this claim his brief on raise facts, supported on the same but are based peti- we a appeal. generally While deem theories. See distinct constitutionаl tioner to have waived issue raised 116 Gray, 518 S.Ct. 2074. brief, opening see States v. an United appeals constitutional “[G]eneral to broad (9th 1992), Ullah, F.2d Cir. equal pro such as principles, process, due general recognize exceptions this we tection, trial, the right to a fair are exception applicable rule. here: Such exhaustion.” Hiiv insufficient establish fully state has the issue briefed Wood, (9th v. Cir. There- ala F.3d prejudice. suffer no See id. 1999), fore, may “sufficiently we when conclude we But claims are address raising issue. related” or “intertwined” so other, clearly implies exhausting one Next, argues the state exhaust, one claim will also the related fairly claim was not claim, long as to explicitly so the failure to the Court or California “strategic the related claim not a raise court, and so is both district unexhausted Lounsbury Thompson, choice.” 374 F.3d “A court and waived. federal (9th 2004) (internal quotation Cir. prisoner grant habeas relief to a state omitted) (holding that exhaustion marks properly he has rem unless his' exhausted com procedural challenge petitioner’s Ryan, edies in state court.” Dickens v. a sub (9th petency determination exhausted 2014) (en banc) 1302, 1317 F.3d Cir. challenge stantive to the same determina Lampert, Peterson v. (quoting F.3d (en tion, (9th 2003) banc)). though challenges relied on Ex two Cir. theories); requires of constitutional claims two distinct Fifth Amendment haustion Kirkland, Dickens, see also (internal Wooten v. 540 F.3d F.3d quota- (9th 2008). omitted). Cir. tion marks We therefore con- claim, clude that Andrews’s uncertified The state asserts that there a distinc- appeal, briefed on is sufficiently related tion Eighth between the sort of Amend- and intertwined with Claim such that ment claim that to' Andrews raised Andrews’s exhaustion of Claim 26 likewise Court and in district exhausted his current challenge. See (sometimes referred to as Lackey Lounsbury, Moreover, 374 F.3d at 788. claim), and Eighth Amendment claim Andrews raised this claim same here, on raising based Jones he is such district Accordingly, court. Andrews ex- the state courts opportunity lacked an delay hausted this claim and did not argues consider it. waive Specifically, the state it. Lackey claim is an chal- individual lenge, theory based on executing now consider mo We prisoner spent many who years has on tion for a COA for this claim. The district death row prohibition violates.the on cruel court denied Claim because the state punishment of that prisoner, and unusual rejection court’s of this claim was not an theory while Jones was based application unreasonable system- the- California itself creates the precedent. No jurist infirmity, constitutional because inordinate would find ruling the district court’s debat delay system arbitrary makes and un- Slack, or wrong. able 529 U.S. at able to serve deterrent retributive As previously 1595. we have stat purpose, in Eighth violation of the Amend- context, in ed clearly AEDPA es ment. tablished precedent holds disagree We is rais Andrews in delay inordinate execution a systemic ing challenge a to California’s capital defendant constitutes cruel un and administration of penalty system, its death usual punishment in Eighth violation of the which would be a new and unexhausted Allen, Amendment. 435 F.3d at 958-60. Rather, claim. claim Andrews’s before the argues Andrews that the court’s state re court, court, the district on ap and jection delay contrary his claim is to peal here is essentially the same constitu Furman, 311-12, U.S. right tional claim: that his to be free from (White, J., concurring), Gregg, and punishment cruel unusual and under the (plurality U.S. at opin Eighth by Amendment is violated his ion). general But these cases articulate lengthy incarceration while under sen Eighth Amendment standard tence death.- has not intro Andrews penalty death if unconstitutional im any duced new facts or since evidence he posed arbitrarily, or if penalty itself this argument raised to the state court. not does serve the penological purposes of Andrews’s supplemental points brief to deterrence princi and retribution. These Jones n systemic that there are conclusion ples “squarely do not spe address[ ]” delays in imposing the death claim, cific by delay issue raised Andrews’s throughout system, the California but uses significant require would extension conclusion support Lackey this to claim his rationale, Gregg of Furman and to delay “inherent in capital cases” ren in,this apply particular See context. Van ders executions unconstitutional. Accord Patten, 552 U.S. at 128 S.Ct. 743. ingly, Andrews’s references' to Jones do not “fundamentally legal alter We a similar claim reached determination in already Davis, considered the state courts.” v. Jones where we that neither held others, informally many Gregg the rule who nor established interviewed

Furman delays provided Amendment information about: Eighth that the barred activities proceedings. resolving post-conviction apartment around Wheeler’s light Su 806 F.3d at days leading up According the murders. rule preme that “federal Court’s courts statements, drug these cus- Wheeler’s novel constitutional theo not consider frequented apartment, distur- tomers review,” (citing on id. ries habeas occurrence, regular bances were a Lane, 489 Teague v. shootings apartment. occurred had (1989)), we conclud L.Ed.2d police any corroborating not find did sys Lackey nor neither claim ed that suggest- physical testimonial challenge penal temic California’s death drug of these customers was cognizable ty habeas system was federal investigating the killer. Wheeler’s When 548, 552. proceedings. Id. at Because such fingerprints of apartment, found police consider habeas claims are barred in the individuals .seen who been 548, 552, see Teague, id. at ation undér evening oc- apartment on the the murders clearly they not rules un are established curred, nothing linking them to the but 2254(d)(1). der Schardt U.S.C. one police drug arrested dealer crime. The (9th 2005). Payne, 414 F.3d Cir. Wheeler, ultimately who worked but Therefore, rejection of state court’s interrogated, him. this released When delay claim was not unrea Wheeler, drug murdering denied dealer Gregg, application Furman or sonable police but told that a Mexican Mafia dispute jurists not reasonable would him that member had told the Mexican ef court’s district conclusion He Mafia had murdered Wheeler. did Woodall, 134 fect. See S.Ct. at 1706-07. any corroborating sup- provide Therefore, rejection the state court’s port this story. delay claim an unrea evidence, Relying Gregg, application Furman or sonable claims that his trial counsel were ineffec- jurists dispute failing investigate present conclusion to that ef tive district court’s Woodall, 134 parties, See S.Ct. at 1706-07. such as fect. evidence that third Wheel- dealers, er’s customers and fellow had the has not Andrews made “sub- Because to commit opportunity motive and showing” Eighth that his Amend- stantial drug-related to dealings murders due their violated, rights ment were see 28 U.S.C. claim, court summarily The state with Wheeler. § 2253(c)(2), deny COAa for we this rejected An- this claim when denied B petition. drews’s second state habeas The district on court denied relief this claim. turn to Andrews’s four uncerti- nextWe trial alleging fied that claims were counsel reasonable We conclude that jurists failing Strickland for under to ineffective wrong would not find debatable investigate four present categories and that claim district court’s conclusion evidence. AEDPA, fails and See under Strickland Slack, 1595. The po The first claim to the relates evidence at .trial was overwhelm- adduced investigation suspects lice’s before Sanders, ing: eyewitness, testified to agreed to testify was arrested and Sanders murders, Brooks of the testified events pursuant plea agreement. During to confession, regarding Andrews’s and the investigation, police officers state took palm from at nine evidence that Andrews’s ments least witnesses established apartment on either prints found side Bran fingerprints were Andrews’s Andrews, body. In re 124 Cal. People prints. don’s palm Accordingly, 658. Rptr.2d Cal.Rptr. P.2d at The two jurists not reasonable debate experts that right palm concluded left and court’s conclu reasonableness prints on the on kitchen floor either side of failure to sion counsel’s further inves that body to belonged Andrews. Id. Brandon’s An suspects prejudice these tigate did supervisor, Jimmy Cassel,.had Sanshuck’s Strickland, drews’s defense. previously prints reviewed the initially them Wheeler. belonging labeled shortly Sanshuck discovered the error be Second, argues Andrews that fore Andrews’s first trial. At the to in second failing were ineffective trial, the original that vestigate or Cassel stated mis- present that semen evidence body on to his pro Brandon’s could not have due efforts to found identification was come from court’s Andrews. cess scene district the crime information too n that conclusion state court did not there quickly, and testified that was no Strickland unreasonably apply rejecting similarity palm prints between found debatable, this claim is not because on prints. kitchen floor and Wheeler’s reasonably state court conclude Sanshuck, Keir, Id. The three experts, failure to counsel’s such evidence introduce Cassel, all at the second trial testified only prejudicial. record was shows palm prints palm matched the containing on that slides semen found prints side found either Brandon’s biological contain body Brandon’s markers Id. Andrews body. has never adduced people some do secrete and others this. rebut not secrete these mark not. does Andrews On Andrews claims his appeal, ers, but the record silent toas whether failing counsel were deficient investi- awas secretor. Andrews offers Brandon defense, gate First, lines of two different suggesting statistical evidence that Bran performed that counsel secretor, Andrews claims probably don but the failing to Indeed, deficiently by present evidence is not conclusive. even fingerprints experts could have testifying other noted Andrews they apartment that what minimal evidence obtained due been left Wheeler’s subject challenge. In light Second, visits. Andrews claims prior in eyewitness testimony about Andrews’s uncovered counsel should have murders, his palm volvement police’s used the misidentification original, body, prints next Brandon’s points to palm prints,. of his other dispute that jurists would not the state reports in the record which he claims any reasonably court concluded that defi analyst, a third shows that Keir and Wil- ciency by counsel was prejudi defense not Leo, finger- liam also his misidentified cial. rejected prints. court The district this light of the claim. unrebutted In evidence Next, raises claims Andrews two on palm prints either of that found side relating investigation fin police to the of body prints, no Brandon’s were Andrews’s gerprint evidence found at Wheeler’s jurist dispute the would district reasonable explained by As court apartment. the state that court’s determination the state court police’s finger of appeal, on direct two reasonably . could have concluded that experts, Don print Howard Sanshuck and Keir, handling fingerprint counsel’s .evi- they ald testified at trial that com not prejudice dence pared fingerprints found Wheeler’s defense. did legal clearly that ex principle Strickland, 466 104 S.Ct. “establish U.S. question whether Andrews’s tends”: to alibi pursue wit counsel’s failure claims Finally, Andrews ineffective assistance of coun was nesses failing to in ineffective were Moses, sel, (quoting see 555 F.3d regarding present or evidence vestigate 123,128 743) Patten, 552 S.Ct. U.S. Van murder. The night of the alibi the (alterations marks quotation and internal gave defense that Andrews shows record omitted). Accordingly, the court’s re state alibi wit names two investigator the claim was not an un of Andrews’s jection to locate on how information nesses and application of Valenzuela-Ber- provide any them, not Andrews did but Woodall, 134 S.Ct. at nal. See 1706-07. state thé from these witnesses affidavits sum, cоurt not unrea- In state did court,' any further information about concluding sonably apply Strickland testimony. court of their The state nature “substantial, not create a did Andrews rejected this claim. court and district likelihood of differ- just conceivable” testimony Sand light of the detailed result, “any possibility of or that real ent Brooks, the evidence Andrews’s .ers [Andrews’s], being acquitted eclipsed of Brandon’s either side palm prints on remaining pointing by the regard lack of body, and the 112-13, Richter, 562 U.S. guilt,” witnesses, jurist no reasonable ing the alibi Strickland, 770; also 466 U.S. see S.Ct. court that the state reason dispute would the district 104 S.Ct. concluding ably. applied.Strickland this effect was court’s determination investigate to further counsel’s failure Accordingly, has not Andrews debatable. prejudicial. these witnesses showing of the denial “substantial made States v. Val United Andrews relies right,” 28 U.S.C. of a constitutional he proposition for the enzuela-Bernal 2253(c)(2), and we decline to issue assistance establish his ineffective COA. showing ali how his counsel claim without C testified, because have bi witnesses would their' testimo only to show he needed argues that the state to his ny material and favorable would be that his rejecting erred two claims court defense. 458 Brady Brady were rights under violated. (1982). Therefore, An 73 L.Ed.2d to disclose “evidence requires the state claims, in re court erred drews is both favorablé the accused claim] The district jecting his Strickland punishment.” or to guilt either to material we rejected argument, 667, 674, 105 Bagley, U.S. v. that when agree. held (1985) (internal Valenzuela-Bemal quo 87 L.Ed.2d who could government 'deports aliens omitted). is materi tation marks Evidence defense, in his that, criminal defendant aid a probability al “if is a reasonable there criminal defen is no violation there to the been disclosed had the evidence compulsory process under right defense, dant’s proceeding the result the defen Amendment unless Sixth Id. at been different.” showing violation, plausible Thus, some a Brady “make[s] dant to establish (1) testimony would alibi prove: witness’s] how [the “[t]he a defendant must evidence accused, favorable to both material and to the ei have been at issue favorable [is] not ruling does or because exculpatory, Id. This defense.” ther because (2) issue,” was impeaching,” Pat the the it is “squarely ] Van address[ evidence willfully or ... either inadver- ten, “suppressed or 552 U.S. (3) resulted, prejudice rejection mean court’s tently,” of Andrews’s second Bra- probability is a that claim, there dy prosecution the withheld the disclosing the to the evidence defense subject fact to charges Brooks was of changed have the result. See Stick would welfare court fraud. The state could have Greene, 281-82, 119 ler v. 527 U.S. reasonably concluded defense counsel 1936, 144 (1999);Bagley, L.Ed.2d 286 S.Ct. had sufficient information discover that 3375. S.Ct. filed, charges had been because defense counsel being knew that Brooks was inves- sup Andrews the state claims tigated fraud, First, questioned welfare pressed pieces two of evidence. he trial, her about it at prosecution presence failed to dis outside the contends the by case file maintained the Los the jury. close Dupuy, See 760 F.2d at 1501 Angeles Department, Police termed n.5. book,” “murder which contained material Andrews also raises claims under Na- including party culpabil the third evidence pue, which that the state provides not

ity fingerprint evidence also advanced evidence, “knowingly including use false support of his ineffective assistance of testimony” false it to go “allow[ ] uncor- claims. The state court rea counsel could rected it appears.” when 360 U.S. at sonably rejected have this claim because According Andrews, the provided the state had with a chro state knowingly false testimony adduced police investigation nology referring experts, from two fingerprint Keir and allegedly suppressed mur much First, Sanshuck. Andrews notes that a re- der evidence. The district court held book record, 4, 1980, port August dated court’s conclusion not an the state was “fingers” states that Keir from reviewed application Brady. unreasonable No rea (the suspect being named “Walters” alias jurist disagree sonable could this con time) by used Andrews at the and con- clusion, the state court rea could because cludes that prints were “not made.” sonably have concluded that the evidence means, argues, This Andrews that Keir suppressed Brady. under See Dupuy, identifying palm prints United States lied F.2d found (9th 1985) (holding gov n.5 being Cir. body Brandon’s as does not ernment suppress also lied when he testified he first Brady purposes “the means of where palm prints examined No- obtaining the exculpatory evidence [was] asserts vember 1983. The state Keir did defense”). Moreover, to the provided testify falsely, report because the ref- reasonably could have conclud fingerprints, erences while Keir testified proceeding ed that result Second, regarding palm prints.' if been différent even the evi argues testimony po- that Sanshuck’s had been dence disclosed defense. policy require photographs did not lice Stickler, 527 U.S. at taken of on the surface from prints be false, they which were lifted because it reason, Angeles Depart- For the contradicted a Police same no reason Los Manual, disagree ment able with the Homicide dated 1981.31The jurist district Angeles Department Los it is easier 31. The Police Homi- recommended because much n part: Manual states in pertinent cide print introduce into court if (A) print parts photographed, has been Photographing Note: Prints object print may Prints found at the scene of a homicide which carried photographed. procedure picture. show in should evi- post-conviction [of destruction false information no was argues state violation”). id., process see because There- knowingly presented, dence] is due fore, not not permissive, Supreme manual used Court did homicide the California language, and because the mandatory, unreasonably 'apply Young- Trombetta po- did not reflect statement to make manual’s blood. relies on Osborne which department’s practice, actual claim, lice of a second the destruction ' testimony. subject of Sanshuck’s was process his due evidence violated rejected Na- court district con- Eighth rights. We Amendment do claims, jurist could no reasonable pue court’s sider whether the state decision reject could disagree that the state court contrary to or an appli- unreasonable on the reasonable view claims based these Osborne, of it was decided cation because of the the state. See Mad- facts offered ruled, Supreme after Court the California dox, (holding that at 999-1000 F.3d clearly prece- and thus is established AEDPA, finding fact court under 2254(d)(1). purposes the- dent This “actually merely wrong, must be not but court, as ory was.not the district briefed support unreasonable” and without completion the case was decided between relief). habeas record warrant briefing An- court’s decision. clearly points to no established drews D precedent the time existence at Andrews makes three claims princi- this ruled that state court applies on the fact that 1993 and based between ple, rejec- and therefore the district court’s 1995, all biological in this case among tion this claim was not debatable destroyed, except fingerprint for -50 n fairminded jurists. cards, slide, slide, vaginal one oral one de- is that Andrews’s third claim petition one anal His to the slide. Califor him struction evidence denied access nia Court claimed that the de claim underlying the courts to vindicate an his due struction the evidence violated However, dis- innocence. as the factual process rights, under Trombetta and Ari rejecting recognized trict this court Youngblood, zоna v. case that held claim,- prece- Court he cites government’s preserve po “failure to establishing that clearly dent destruction tentially useful evidence” before trial does after a convicted defendant process not violate a defendant’s due right to the violates of access court's. rights unless the criminal defendant .can Harbury, An- Christopher v. on which government show that acted bad relies, point: drews is not on held that 51, 58, faith. 488 109 S.Ct. government claim that plaintiffs officials (1988). L.Ed.2d 281 As Andrews acknowl misled her connection with her hus- has edges, held since con- disappearance band’s did state a assessing pre-conviction that cases access upon claim of access stitutional denial evidence, would Trombet- include which granted. 536 U.S. which relief could be apply ta do not cases Youngblood, 403, 407, 415, 418-19, denied access evi where defendant (2002). Accordingly, no rea- L.Ed.2d At being after convicted. See Dist. dence jurist dispute the dis- sonable torney’s the Third Dist. Judicial Office correctly trict claim. denied 61-62, 68-69, Osborne, (2009); see L.Ed.2d E Palmer, also Cress v. 484 F.3d above, (6th 2007) light conclude we (observing Cir. that “the Su disagree jurist that -no has established preme not-clearly in rejecting district An claim of freestanding with the' court actual innocence is “ cumulative error fun ‘extraordinarily “[T]he drews’s high,’ claim. and that the show damental-question determining whether ing a [for successful have to claim] Would of trial violated the combined effect errors Herrera, be ‘truly persuasive.’” (quoting process is rights a due wheth 417, defendant’s 853) (O’Connor, 506 U.S. at 113 S.Ct. er errors the criminal de rendered J., concurring)). This claim does not merit persuasive,’ thereby less fense ‘far and a COA. injurious or influ effect ‘substantial sum, because the district con- court’s Runnels, jury’s v. on verdict.” Parle ence’ clusions, review, under AEDPA not are 2007) 922, (9th F.3d Cir. 5 among debatable jurists, reasonable An- omitted) (citation (quoting v. Chambers drews to make the fails “substantial show- Mississippi, 410 U.S. ing of right” denial constitutional (1973) Brecht 35 L.Ed.2d 297 v. issue, for a required deny COA and we

Abrahamson, 507 U.S. request for one as to his each of his uncer- (1993)). agree 123 L.Ed.2d 353 We tified claims. district with the court that the California reasonably Supreme Court determined V errors, in any aggregate, the. did not Andrews contends that the dis or injurious have such substantial effect trict in denying court erred his motion on verdict. The result cumulative evidentiary hearing on 16 claims disputable by An errors identified (Claims 15, 19-23, 32), which not drews would have his made defense appeal include all but one of the claims on significantly persuasive, more since his de here.32 review a district We court’s denial attacking credibility on focused fense evidentiary hearing of an an abuse challenging Brooks Sanders and discretion, Sully Ayers, v. 725 F.3d fingerprint palm print Rea evidence. (9th 2013), “may Cir. affirm the jurists dispute sonable dis any on ground sup district court’s decision conclusion, trict court’s so no is war COA record, ported by the if even it differs ranted. (in rationale,” from the district court’s id. jurist Nor would dis omitted). quotation ternal marks In Pin- agree the district conclusion court’s holster, stated that state court rejecting did err in 2254(d)(1) § “review under limited Andrews’s factual innocence claim. The that was before the court record state court could have reasonably conclud adjudicated the claim on the merits.” ed introduction slides that Andrews’s “[A]n 563 U.S. at S.Ct. 1388. biological showing that markers found evidentiary hearing pointless once the hqd on body semen Brandon’s not been district has determined by secreted Andrews and 2254(d) precludes Sully, habeas relief.” Brandon, been secreted described 1075; Pinholster, see F.3d above, “go beyond dem was insufficient n.20, (“Because Pin- at 203 131 S.Ct. 1388 onstrating guilt doubt about his affir [to] failed to that the holster has demonstrate prove that inno matively probably he is adjudication of claim on the Carriger Stewart, 132 based- cent.” See F.3d (9th 1997) banc) (en (observ Cir. state-court record resulted a decision establishing ‘contrary ‘involving] the standard for to’ an unreason hearing Eighth did evidentiary 32. He not seek an would violate exe- Amendment to long argument delay. whiсh cute Claim raised the him after law, inquiry a writ of Our focus of application’ dence. must able federal “ultimate granted’ ‘shall' not corpus pro be and on the fairness habeas fundamental (alteration is at an end.” in analysis ceeding being challenged.” whose our result is Accordingly, the district court original)). Washington, v. Strickland (1984). in motion denying not err did L.Ed.2d evidentiary hearing. for an Under the of review standard mandated by the Antiterrorism and Effective Death we REVERSE light foregoing, of the (AEDPA), “pivotal ques Act Penalty relief, grant court’s DIS- the district application tion is whether the state court’s injec- lethal Eighth Amendment MISS of the Strickland standard was unreason unripe, peti- as DENY and tion claim Richter, Harrington able.” a COA the uncertified claims. tion for (2011). 178 L.Ed.2d part, in DISMISSED in REVERSED The California Court’s determi part. part, PETITION DENIED performance nation that counsel’s was nei prejudicial just ther deficient nor is riot MURGUIA, Judge, dissenting Circuit wrong, clearly under the unreasonable part: law of prog established and its Strickland dissent. I affirm respectfully I would Thus, eny. even under the deferential stan granting court’s order Andrews re- district AEDPA, conditional dard sentenc to ineffective assistance of counsel lief due n ing relief is warranted. , penalty phase of his trial. at the . was convicted of three Andrews heinous I. n prior murders. His appalling crimes was Alabama Andrews sent to the In- violent antisocial. But due to were Children, Negro School for later dustrial constitutionally counsel’s inade defense mid-1960s, known as Meigs, Mt. phase investigation, quate penalty ju stealing prior after car. He had histo- rors who sentenced Andrews death nev ry of violent crime. He entered school subjected that he for er was two knew was when he was He left when he brutal, young teenager inhu years as a judge California who conducted the mane, degrading by abuse his state evidentiary hearing state court described Meigs, segregated at Mt. re custodians Meigs “segregated Mt. as a brutal institu- for in Ala “Negro form school children” Alabama;” Montgomery, tion near readily Had bama. hearing judge state court found that' the evidence, mitigating available there is a horrific, at Mt. Meigs conditions were probability least one subjected personally Andrews was juror have been moved to exercise “béatings, brutality, inadequate conditions mercy spare Yet Andrews’s life. predators.” Due to “his small and sexual Supreme Court relief denied nature,” passive stature and Andrews was decision, concluding a 5-to-2 that counsel’s target boys’ depredations.” “the older nor performance neither deficient itself The California ac- Andrews, In re prejudicial. See 28 Cal.4th knowledged persorially en- Cal.Rptr.2d P.3d 656 “appalling” Meigs. at’Mt. dured conditions (2002). 52 P.3d Fundamentally, it is . unconscionable at 660. sentence, a man to death absent consider evidentiary hearing At the state court magni ation of evidence of this Court, tude, particularly failed to ordered the California where counsel present any meaningful mitigation outside evi several observers corroborated Girls, Meigs. (5th of abuse at A Mt. United 413 F.2d accounts Cir. 1969) judge, federal (ordering testified Mt. the desegregation States Mt. during Meigs, Meigs the time Andrews was finding that it after was “inferior there, “penal represent- colony” that every way” to similar schools for white children). ed the “absolute denial of and funda- basic rights

mental human [African-Ameri- spared. Andrews was not The state A probation children.” can] former excruciatingly record chronicles in Meigs officer described Mt. “slave vivid the abuse he personally detail suf- children, camp” by run “illiterate over- fered. When Andrews- to pick failed in seers.” who forced children the work cotton, enough grass left in high- the too harvesting vegetables picking fields fields, the or dining made mistake the The all cotton. children “beaten' the were hall, whipped he was a fan or belt time,” broomsticks, mop sometimes with beaten with a stick. The record indicates handles, belts, severely and fan and often that was beaten severely Andrews so the perva- for minor infractions. was Violence thighs skin on his open.” On “bust sive and sexual assaults were common. other occasions and other Andrews wards probation The officer that testified at Mt. Meigs were to pull forced down Meigs children committed the Mt. their lie on pants, ground the on their no of 1960s had chance rehabilitation and stomachs, place penises their in holes much they “came out worse” than when were, they earth the The while whipped. officer, probation The entered. testi- who judge who the evi- conducted state court Congress legislatures fied before and state dentiary hearing found the of evidence justice juvenile about facilities around the “compelling.” abuse Meigs “by that was country, stated Mt. that, jury .sentenced to. Andrews far, far ... by facility” the that he worst of death heard none evidence. Yet had seen. Supreme Court California concluded that “school,” Despite being Mt. termed a and, if, counsel ‍​‌‌​​‌​‌​​​‌‌‌​‌​‌‌​​​​‌‌​‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌​​​‌‍not was ineffective even education, Meigs provided little to no coun ineffective, was no proba- there reasonable seling, programs or to the chil vocational a, bility sentencing different result at custody. in its 124 dren See Cal. jury Meigs heard the evi- Mt. 473, J., (Kennard, Rptr.2d at dence. dissenting). And in an. Alabama dis fundamentally That decision is ob trict court ordered extensive reforms jectively unreasonable. Consideration of finding “corporal the institution after history is a defendant’s life “constitutional punishment promiscuously employed was , ly indispensable part of process personnel” agreeing school’s inflicting penalty of Edd death.” See training school officials “[w]hen Oklahoma, ings v. U.S. permitted frequent or have condoned (1982) (quoting L.Ed.2d corporal punish and indiscriminate use Carolina, North Woodson v. they ment the cal ... demonstrated (1976) 2978, 49 96 S.Ct. safety L.Ed.2d lous indifference to children’s which (plurality opinion)). Yet provides Eighth basis for Amendment almost evidence liability” punishment. cruel and unusual Order, sentencing. Meigs The Mt. Stockton evidence is v. Alabama Industrial present cumulative to other Negro Children, 2834-N School No. (N.D. 23, 1971) trial or July pro during penalty phase. Ala. ed (adopting posed findings readily sympa fact and conclusions Its available. law); Training patently see also Crum v. State Sch. thetic nature is obvious. And II degrading consideration

without endured, jury abuse Regarding Strickland’s prong, first death fair sentenced Andrews unreasonably Porker See “gauge his ly culpability.” moral applied clearly federal established law McCollum, U.S. concluding performance that counsel’s curiam). (2009) (per 175 L.Ed.2d adequate. phase sentencing outcome has Confidence “[Cjounsel duty has a to make reason Strickland, See U.S. been undermined. investigations able amake 694, 104 S.Ct. 2052. particular investiga decision makes our to state recognize I deference unnecessary.”Strickland, tions 466 U.S. at zenith on federal court decisions is at'its counsel have When Richter, generally habeas review. obligation a thor “their conduct fulfilled S.Ct. 770. Under ough investigation of back the-defendant’s AEDPA, courts are federal barred identify to ground,” failure and set their court granting relief as to habéas state ' mitigating forth substantial evidence if of jurists debate convictions reason could sentencing justified be as a cannot “tactical the deci the of state court’s correctness Williams, decision.” See 529 U.S. at See id. “A state sion. 131 S.Ct.770. (citing 1 for 120 1495 ABA Standards granted a court must deference 4-4.1, 4- p. commentary, Criminal Justice operation the that latitude are when Wiggins see v. (2d 1980)); also 55 ed. Strickland the case involves review under Smith, 510, 521-22, relief Federal standard itself.” habeas 2527, 156 (2003). 471 L.Ed.2d warranted, however, if “the state court “vir trial counsel conducted Andrews’s governing prin the legal correct identifies tually penalty phase investigation” Supreme ciple” from the of the decisions single penalty “did not a at the call witness unreasonably applies prin Court but that Andrews, phase.” Cal.Rptr.2d 124 petitioner’s to the case. ciple facts (Kennard, J., dissenting). P.3d at Nor Taylor, v. 120 Williams investigators did counsel their to see (2000); ask do L.Ed.2d Indeed, 2254(d)(1). any penalty phase. the This case work on meets U.S.C. stringent on Andrews’s made no effort for relief counsel serious standard collateral habeas mitigating federal discover evidence.1 review. trip majority trips

1. The cites Andrews's “coincided” with Mardi Gras celebra- first, Second, only tions! after made to Alabama and Florida as evi- Andrews's trial they something hung jury, lawyers dence that other ended a interviewed conducted phase investigation. during layover in cursory penalty than a mother Majority lawyers’ aiiport, they briefly at 1012 n.3. Yet own after Pensacola' revisited account, penalty phase investigation courthouse to examine records their the Mobile First, just prior consisted three activities. Andrews's The convictions. interview lawyers spent day go back- the Mobile did into about Andrews's courthouse detail prior lawyers pulling ground, convic- about inquire records of and the did not lawyers initially One of tions. or information of testified the names contact relatives trip days anybody else who knew Alabama included three their Third, investigation, changed history. lawyers speak after He that account his being spent they they with some in Mobile time confronted asserted that time, unsuccessfully during trips New two were in Orleans most of the one of their flying Saturday returning "looking] on a Jesse's character Mobile evidence of however, day. The good lawyers, to New on the same New Or- did Orleans deeds.” and not case; single person, had no leans dates of relation interview contact (1) presided who over Andrews’s Refusal to Involve judge, his Family. hearing evidentiary expressly found defense counsel could uncovered The California Court found Meigs “simple per evidence with Mt. investigation counsel’s adequate limited investigative’tech sistence” standard partly refused" to because Andrews involve Andrews, Andrews, niques. Cal.Rptr.2d See family phase. See (Kennard, J., dissenting); at 680 P.3d Cal.Rptr.2d at 668. 12 see 52 P.3d at also id. reasoned as “Although (noting that routine follows: the referee research found’that legal mitigat counsel could have discovered the public would have revealed law records at the reference institutions). these involving suits Alabama hearing ‘simple persistence,’ Supreme Court The California does not equally petitioner clear insisted they not dispute finding. Cal. his family. involve ‘As repeatedly we have Rptr.2d 52 P.3d at explained, attorney representing a de fendant at penalty phase capital A case is required present potentially evidence over defendant’s Court, however, The California objectionsId. (quoting People excused counsel’s failure to discover the Kirkpatrick, 30 Cal.Rptr.2d 7 Cal.4th unsup- Mt. Meigs evidence for number (1994)). con-, reasons, ported unsupportable California is correct eluding investigation' that counsel’s family that his in Andrews did not want (1) constitutionally adequate because: An- correct volved. And it is also that involved; (2) family drews did not want his of counsel’s actions “reasonableness not tell counsel about Andrews did substantially or be determined influenced appalling he endured while con- conditions by or statements ac defendant’s own (3) Meigs; Meigs fined at the Mt. Mt. Strickland, tions.” See 466 U.S. n backfired, for the evi- evidence could have excusing However, counsel’s S.Ct primarily comé dence would have Meigs present to failure the Mt. evidence (4) prisoners; investiga- counsel’s limited to upon involve based Andrews’s refusal tion was counsel a reasonable because had family his on its face a unreasonable penalty phase; strategy at simple Meigs presenting reason: the Mt. (5) Meigs the Mt. evidence could have required any in evidence would not have opened regard- the door to more evidence Instead, family. by volvemеnt Andrews’s of prior acts violence. Not Andrews’s herein, counsel as accounted defense scrutiny of one these rationales withstands Meigs by introduced1the Mt. perform or failure to excuses counsel’s admitting public presenting records investigation basic into client’s life his- his of testimony experts numerous observers, respected tory. friends, background penalty phase. family or for a possible Andrews’s or look into An- history. Similarly, California Court’s drews’s referee institutional character- gather investigators two defense that their ized counsel’s efforts" testified to miti- “actual phase guilt phase, gating penalty evidence for the as “lim- were limited to efforts ited,” attorneys light that of Andrews’s asked characterization which of this neither understated, overly generous. any investigation record is if not

them to do into Andrews’s However, no evi possible mitigation.”). is also unrea- court’s rationale The state suggests in the record record before it. dence light sonable any questions that at the ever asked Andrews attorney trial testified An history. hearing An- would have elicited evidentiary state court drews, P.3d at 681 on penalty limitations no imposed drews (Kennard, J., dissenting) (stating background, Andrews into investigation phase His family information. wanting to>have his “did withhold apart from subject.”).2 Nor attorneys never raised the hearing judge testify. The state is there “de calling witnesses who to found obstacle attorneys family. by one his trial scribed not members were ‘very cooperative,’ would have refused It unreasonable-for was therefore prison expe school and discuss his reform excuse coun- in' asked Alabama he been riences Meigs the Mt. present evi- failure to sel’s them.” Id. about' upon Andrews’s refusal dence based facts, the California Given those Su family. See U.S.C. involve his placing Court was unreasonable 2254(d)(2) (stating preme habeas federal comprehend the burden if the state court deci- relief is warranted mitigation offer theories at the upon an unreasonable de- sion was based clearly trial. Under estab light phase his own facts the evidence termination of law, legal strategy Supreme Court proceeding); lished presented in the state court counsel; duty is the and domain learned Porter, 130 S.Ct. 447 cf. in- a defendant “has ultimate au counsel’s not to while (stating that decision thority to make certain fundamental pro- deci vestigate must reflect “reasonable case, regarding the as to whether the client sions judgment,” fessional even when his or guilty, jury, testify waive uncooperative”). plead is “fatalistic behalf, appeal,” legal or take an her own (2) Counsel Andrews’s Failure Tell. profes strategy decisions are matters Meigs. Mt. His Time at About that fall within counsel’s sional judgment responsibility of also are the coun Supreme domain and California Court Barnes, telling for not trial coun See Jones faulted Andrews sel. And, (1983). 77 L.Ed.2d appalling

sel about the he en 987 conditions Andrews, above, of in Meigs. as accounted the most basic dured while at Mt. See history into vestigations Andrews’s life Cal.Rptr.2d (“While of the petitioner have uncovered evidence counsel were had would aware Williams, 529 U.S. prison been in the Alabama abuse he suffered. incarcerated Cf. (finding system, not inform them of the counsel he did thereby alerting failing for to review defendant’s conditions he endured deficient juvenile uncov investigation records “would have the need further them majority generally light majority's repeatedly on whether ac- or engaging in a de novo were reasonable unreason- cuses the dissent of determinations light evaluating able in of the record as a whole. Facts review when whether Califor- Supreme were on federal habeas review are not limited nia Court's determinations only supreme stated the state reasonable. Yet deference does not eviscerate facts majority opinion. duty our to examine evaluate the record court’s' U.S.C. аnd’ Cf. 2254(d)(2) (stating that federal habeas relief to determine the reasonableness of the state Further, engaging if is warranted the state court decision "was court’s conclusions. entirely proper unreasonable inquiry, to look to a on an determination it is based light presented"). dissenting opinion of the evidence shed the facts state court graphically ered extensive records describ (stating that “partial reliance on an childhood”). nightmarish [defendant’s] erroneous factual finding” can show “the unreasonableness the state court’s deci- (3) . The Reliance Prisoners sion.”). Meigs Present the Mt. Evidence (4) Penalty Strategy Counsel’s Supreme The California Court further it concluded was reasonable for counsel The California Supreme expressly Court present Meigs not to the Mt. acknowledged that the record the state because such evidence could have back court evidentiary hearing suggested that have, primarily as it “would come from fired counsel could conducted a more thor- testimony of petitioner’s prisoners, fellow ough investigation into back- Andrews’s many of whom were hardened criminals ground. Andrews, 124Cal.Rptr.2d felony Andrews, with serious records.” See However, P.3d at 669. the California Cal.Rptr.2d 52 P.3d at 668-69.3 Supreme ultimately concluded penalty phase performance counsel’s However, the' Meigs Mt. evidence was n adequate because had decided counsel dependent upon testimony pris upon a reasonable strategy, one ap- At oners. Andrews’s state court evidentia- parently require did -any involve ry hearing, judge, “a federal a district meaningful preliminary investigation into dean, priest, college psycholo clinical history., ding Accor social doctor, gist, longtime prison and the Court, California pre- Bureau, regional of the director Federal sented a sparing peti- “reasonable case Detention, gave all ... powerfully effective (1) tioner’s life” by portraying Andrews testimony the shocking about conditions “as a violently follower rather than as Meigs. at” 12 Cal.Rptr.2d Mt. anti- social”; (2) arguing a death (Kennard, sentence J., 52 P.3d at 681 dissent was not warranted because “others .who ing); e.g., id. 52 P.3d multiple committed more heinous (discussing testimony mur- federal dis ders” were to death Dement, judge trict court Ira who referred sentenced Sanders had re- Meigs co-defendant “penal colony Mt. for chil dren”). lighter id. sentence. See ceived The- record, decision light Court’s state court strategy neither unreasonable because therefore was unreasonable for the Cali- supported by fornia the evidence excuse counsel’s Further, present failure to trial. the state court’s decision Meigs the Mt. on basis is- ignores the that such unreasonable it coun- would have because primarily depended upon “duty investiga- sel’s testimony of make reasonable 2254(d)(2); prisoners. See 28 tions or U.S.C. see to make a reasonable decision that 528, Wiggins, also investigations 539 U.S. at particular 123 S.Ct. makes unneces- However,- Supreme Meigs 3. The California opinion Court's of evidence. dissent ten conflates the provides evidence of abuse that An California an accu youth Meigs thorough accounting drews suffered as a at Mt. with rate and of the' addition potential mitigating mitigating other evidence he could al evidence that counsel could have Andreevs, regarding introduced he sus abuse introduced. See 124 473, J., (Kennard, prison tained as an adult in the Alabama 52 dissent 676-80 P.3d at system. ing) (describing counsel’s failure investi time Because Andrews’s in Alabama evidence, gate Meigs prisons introduce Mt. found to violate the that were later alone, standing plainly Eighth against prohibition rendered counsel’s Amendment’s cru deficient, performance only I punishment). address the Mt. el and unusual 1052 3114). 691, re Strickland, Court’s 104

sary.” at U.S. Burger on for two liance is unreasonable S.Ct. First, Burger, defense counsel reasons. the crimes of convic as to The evidence mitigation initial inves performed a robust eligi Andrews death tion which rendered member, a tigation spoke family to a depiction Andrews as a belied the ble friend, to learn about psychologist follower, phase rendering counsel’s penalty Burger, 483 background. his client’s See record, contrary to the pitch to jury 'the 790-91, 107 upon at 3114. Based U.S. S.Ct. Andrews, 124 hollow, See Cal. and false. learned, Burger’s de counsel what (Kennard, J., 473, Rptr.2d 52 P.3d mitigation against pursuing a case cided (“[T]hat dissenting) disastrous strat was a 791, relying background, id. at reasonably competent attorney egy, one 3114, though it turned out that S.Ct. even used”). Indeed, only evi “the would have further, produced investigation would have jury petitioner was before the dence “an evidence that defendant had additional a follower.” instigator rather than unhappy child exceptionally and unstable showed that [Andrews] Id. “evidence S.Ct. 3114. As the hood.” Id. of the perpetrator was the leader concluded, counsel’s initial Supreme Court follower; crimes while Sanders was investigation led him to make the “reason thus, jurors likely troubled were that his client’s interest able decision lighter by sentence.” Sanders’s presenting this by would not be served trial, evidence at no reason Given the type [mitigating] evidence.” Id. argument can counsel’s able be made that facts of this case are 107 S.Ct. 3114. The depict strategy to Andrews as a follower very Burger’s Unlike different. defense reasonable, particularly when was counsel, attorneys per never Andrews’s investigation into unsupported basic investigation any meaningful initial formed background to determine what background. into their Absent such client’s other evidence was' available. investigation, lawyers cannot be ' Hook, Bobby v. Van U.S. strategic to have said made informed (2009) (stat 13, 17, S.Ct. L.Ed.2d possible to-proceed choices about how trial; “objectively that counsel must'make penalty phase choices”) v. (quoting Roe relatedly, Burger, coun- Second and Flores-Ortega, 528 U.S. a follower depiction sel’s his client as (2000)); Wig see L.Ed.2d 985 strategy sup- was a reasonable it was gins, 539 U.S. at Burger, 483 ported by the record. See U.S. (“Strickland cur does not establish that (noting primary 107 S.Ct. 3114 sory investigation automatically justifies a Burger’s co- evidence at trial showed sentencing respect tactical decision respon- primarily defendant Stevens “was strategy.”). [victim], plan kidnap for the sible victim, Court cited The California physical abuse Kemp, 483 Burger him”). contrast, kill decision to evi- (1987), supporting plainly 97 L.Ed.2d trial showed dence follower, it is reasonable proposition but the Andrews was Thus, it forego mitigating when would California evidence criminal actor. main open evidence which reach Supreme rebuttal Court’s statement that “we door facts,” strategy por of comparable counsel’s the Same on would-contradict conclusion Andrews, 473, 52 Cal.Rptr.2d See An 124 P.3d traying defendant as the follower. see 673, drews, Burger are wrong 52 at at for the facts Cal.Rptr.2d 124 673 P.3d Supreme comparable. not The California (citing U.S. at Burger, 483

1053 Burger reliance on supreme Court’s is unreason- court was “unreasonable to able. discount to irrelevance the of evidence childhood”). Porter’s abusive Supreme

The California Court also un reasonably applied Supreme Court law (5) Opening the Door to Andrews’s Cone, when it cited Bell v. 535 U.S. Prior Acts Violence. (2002), 122 152 L.Ed.2d 914 Finally, the California Supreme Court support its conclusion that counsel reason concluded to present counsel’s failure ably present decided not evidence of evidence, Meigs Mt. among mitiga other Andrews, background. Andrews’s evidence, tion was reasonable because such Cal.Rptr.2d at (citing P.3d opened evidence could have the door to Cone, 699-700, 1843). at 535 U.S. more regarding evidence prior Andrews’s noting Before that defense counsel saw Andrews, acts violence. See 124 Cal. neighborhood grew lip Andrews in and Rptr.2d (stating thаt by it unimpressive considered because was evidence, introducing the counsel own, comparable to counsel’s the Califor “foreclosed the introduction of substantial Supreme nia Court cited Cone for the aggravating, evidence rebuttal proposition reasonably counsel cross-examination that could have under present background not to decide evidence by mined the depicting petitioner defense testimony when about a “nor defendant’s aggressive desensitized vio youth” mal might, eyes in the jury, lence”). The California Supreme Court’s perceived negatively and cut the other decision on this point is unreasonable for way. However, See id. all ju at least two reasons. agree years rists would that the One, prosecutor spent Meigs Mt. were antithesis of trial, interim,; inwho had become a su youth.” “normal Supreme California perior judge, “testified that if the Cone, Court’s invocation while simulta defense had neously ignoring “youth” that Andrews’s prison Alabama he probably conditions his experience included Meigs, Mt. called rebuttal witnesses objectively application, unreasonable give petitioner’s details about Alabama Wiggins, Court law. See Cal.Rptr.2d crimes.” See (observing S.Ct. 2527 (Kennard, J., P.3d at 682 dissenti the “strategic justify decision” offered “to ng).4 pursuit counsel’s limited evi mitigating Two, post dence ... a hoc rationaliza resembles even if the prosecutor had rebutted conduct.”); tion cf. Porter, of counsel’s regarding more evidence U.S. at (concluding prior crimes,5 S.Ct. 447 already violent the jury possible, likely, It is also if accurately that a Cali- 5. The majority observes .that fornia court would not have admitted evi- referee tire Court ma- ' prior mitigating jority dence of pre- offenses rebut the concluded that if trial evidence, Meigs evidence of abuse prosecutor childhood that Andrews sented the Mt. Lucas, Meigs. suffered at Mt. re would have introduced rebuttal evidence. Ma- Cf. n,8, jority finding Cal.4th 94 P.3d at 1014-15 But that fails to (2004) (concluding, plain a unanimous deci- take into statement account sion, showing prosecutor—later judge— "that a former a state court gener- defendant probably responded abuse in childhood he suffered would not have to, ally open does not the door evidence of .with rebuttal [a] evidence. The referee and Cali- prior defendant's duct"). crimes or miscon- fornia Court decided not to take the other prosecutor former word and instead (2005) 2456, 162 L.Ed.2d 360 Andrews's heinous S.Ct. upon based knew counsel (finding ineffective when counsel “aggres- that .-hewas of crimes conviction introduce prosecution the would knew jury to violence.” The sive desensitized “significant phase penalty the defendant’s knew, Andrews’s by stipulation, also crimes, but coun history” prior violent murder prior convictions to review the readi sel nevertheless failed escape robbery armed ly prior pres conviction available .file prosecution the in- robbery in which therefrom); see mitigation ent evidence factors at the aggravating troduced as. 368-69, 395, 120 Williams, 529 U.S. also regarding evidence phase.6 More (finding performance S.Ct. counsel’s prior convictions would have re- jury knew Williams’s deficient when n already knew, jury inforced what history, and violent criminal extensive committed namely that heinous Andrews juvenile records counsel failed to review “aggressive clearly was 'and crimes and miti graphic have uncovered would to violence.” desensitized “nightmarish gating evidence Williams’s " of Strick clearly established law childhood”). minimum, counsel has a At a the conclusion supports land itself investigation duty necessary conduct California‘Supreme Court’s decision was background learn the into client’s Strickland, it In mitigating reason available. See range unreasonable. evidence 395-96, Williams, present mitigating not to able for counsel barely 1495. have altered evidence that “would sentencing profile” and hаve could B prior convictions which opened door sum, tactical conceivable In there was successfully to exclude. counsel had moved forego investigation either to reason 2052. too So 466 U.S. background forego or to into Andrews’s Wainwright, counsel’s in Darden v. where compelling Mt. the presentation strategy at present an alternate decision attorney Any Meigs competent evidence. sentencing because evi was reasonable Meigs Mt. concluded that the would have regarding background defendant’s dence only was the evidence this case evidence prior to his opened the door probability that carried substantial previously been that had convictions That is critical different sentence. evidence See evidence. 477 U.S. admitted jury provides precisely because (1986). L.Ed.2d mercy despite An- a' reason to extend contrast, in a defendant’s In cases where such, com- crimes. As drews’s heinous history jury, known to prior criminal presented the petent attorney would have unreasonably pre in not performs evidence, argued that abuse Andrews mitigating

senting range persuasive of his youth as a at the hands suffered background about the defendant’s why explains he inured state custodians violence, opened up.” spare urged jurors that “no other source had 374, 383, 390, ground.7 Beard, life Rompilla v. drews) during prosecutor killed a store clerk shot and speculated about what the robbery. That decision have done. unreasonable. 2254(d)(2). 28 U.S.C. Cf. suggested The California' n compelling connection” be- jury there was “rio By stipulation, knew that Andrews's un-presented felony mur- tween murder conviction was (cid:127) the crimes committed. stemming incident when An- from an der (quoting drews, Cal.Rptr.2d 52 P.3d at 672 accomplice robbed a then Ross, (not accomplice An- re 10 Cal.4th grocery store and the recog compelling mitigating of Cali- Supreme California Court value. The

The Supreme Supreme the United States fornia unreasonably ap- nized Court held Williams that habeas relief plied clearly Court established federal when law at the was when counsel' failed warranted per- concluded defense counsel’s phase present jury evi constitutionally formance adequate petitioner’s “nightmarish child dence this case.

hood,” imprisoned, model while behavior retardation. See

and borderline Ill 52 P.3d at 674. The prong, Under Strickland’s second however, Court, Supreme California distin Supreme California Court con- majority case, because, Williams guished if per- cluded that even Andrews’s counsel investigation “essentially counsel’s inadequately, formed Andrews suffered no due to an under nonexistent incorrect prejudice from the omission the Mt. id. (citing See standing law.” Meigs sentencing. at That conclu- Williams, at 120 S.Ct. U.S. upon objectively sion too is un- based 1495). Supreme Court is application of Strickland reasonable Williams, failure correct that counsel’s progeny. its in part investigate was based at least Strickland, a capital Under defendant upon understanding, his incorrect prejudice suffers .from counsel’s deficient surely no would But reasonable jurist law. performance when “there is a reasonable holding virtually as that a read Williams that, probability absent [of errors penalty phase investigation is nonexistent counsel], the sentencer ... have would long upon so as it not based reasonable is Indeed, aggravating that the balance of misunderstanding of concluded the law. mitigating circumstances did not war- Supreme United States does Court Strickland, Wiggins, rant death.” so'narrowly. U.S. read Williams clarified, S.Ct. 2052. As Strickland in 104 Supreme “[a] underscored Williams it held the probability probability “failure uncover is a suf- mitigating evi present voluminous ficient to in the out- undermine confidence justified sentencing come,” dence be probability result not a counsel as a tactical decision ... because than not” been likely “more would have obligation to con had not their %lfill[ed] 693-94,104 For S.Ct. 2052. different. thorough investigation the defen duct a considering petition state court habeas Wiggins, background.’” dant’s counsel, asserting ineffective assistance (quoting 123 S.Ct. straightforward: inquiry counsel’s 1495). Williams, 529 U.S. at peti- prejudiced performance deficient if “a proba- tioner he can show reasonable duty thorough to conduct a investi- juror” bility that at least one background capital gation of defendant’s a sentence of life instead very recommended imposed prevent Wiggins, death. 539 U.S. circumstance: a man to death sentenced non-cumulative, reviewing For a federal a habe- consideration of without personal petition pas- filed after the readily history available AEDPA’s (1995)). Skipper 892 P.2d To Court law. See South Carolina, 1, 4, suggest- the California extent (1986) required mitigat- (noting ed a nexus is causal between L.Ed.2d “well-established” crimes, evi- principle the Cali- evidence and defendant’s relevant considered). contrary Court’s dence fornia decision was compelling of the is wheth Without.consideration

sage, question the determinative evidence, finding petitioner Meigs readily the court’s available Mt. er state error, just but prejudiced culpability was was Andrews’s moral to, or unreason contrary Porter, involved an sentencing. “was See fairly at gauged of, clearly application established able Indeed, the 130 447. 558 at U.S. S.Ct. by the Su law as Federal determined assessing for an “benchmark” .ineffective 28 of the States.” Court United preme con- is counsel’s claim “whether assistance 2254(d)(1); see Cullen v. Pinhol U.S.C. functioning proper, the so duct undermined ster, 563 U.S. S.Ct. process that the trial of the adversarial (2011). L.Ed.2d 557 having produced a cannot be on as relied case, Supreme In this Strickland, at just U.S. result.” no there was reasonable Court concluded Here, failure to counsel’s S.Ct. if sentence coun- of a life even probability present severe abuse the evidence mitigating sel had suffered, combined counsel’s Andrews background. Unlike regarding Andrews’s mitiga- present any substantial failure I hold that such a majority, would sentencing, deprived tion case at ap- constitutes unreasonable conclusion sentencing ren- proceeding of a fair clearly n law that was plication federal “unreliable.” See his death sentence ders time of the court’s at the established bottom, 700,104 2052. At was id. at S.Ct. , decision. . Supreme for the California unreasonable ’ jury if Court conclude A evidence, Meigs there is heard Mt. his life defendant’s Consideration juror probability that even one reasonable indispensable “constitutionally tory is a a sentence of recommended inflicting process part of life instead death. Eddings, 455 U.S. at of death.” majority disagrees that Andrews suf 869. The abuse and observes S.Ct. epitomizes the Meigs at “kind of “has fered Mt. found a rea history” that the troubled of a probability different outcome sonable to as repeatedly “declared relevant has aggravating evidence when scant and weak culpability.” sessing moral a defendant’s presented in been rebuttal could have 2527; at Wiggins, S.Ct. Majority mitigating evidence.” strongly (hold 535-36, 123 see also id. at S.Ct. U.S, 534-36, (citing Wiggins, sentencing outcome was a different 2527). Yet 123 S.Ct. reasonably probable had defense proba also a reasonable Court has found Wiggins suffered presented evidence that aggrava of a outcome when bility different abuse, physi well as privation and early ting evidence substantial molestation, torment, re sexual cal Williams, 529 compelling. See care). peated rape foster Such evidence 1495; Porter, U.S. belief, long held is “relevant because 40-44, 130 Indeed, at U.S. com society, that who by this defendants Supreme Court’s time of the California mit criminal acts are attributable case, in this no decision decision or to emotional disadvantaged background, Supreme Court had excused United States culpable be less problems, and mental mitigation compelling present failure such ex have no than who defendants case one available. where California, 494 cuse.” Boyde recognizes, (1990) majority Williams 1190, 108 As L.Ed.2d omitted). (internal particularly instructive. marks and’ Porter are quotations Williams, Supreme Court prior held robbery, there convictions armed bur of a probability glary, grand different larceny). if sentencing present counsel had result Despite strong aggravating these fac “night either ed evidence defendant’s tors, the Supreme Court held that childhood” or diminished marish intel prejudiced by Williams was his counsel’s Williams, ability. lectual U.S. at failure introduce the undiscovered miti Notably, 120 S.Ct. 1495. unlike this case, gation evidence. Importantly case, actually presented Williams’s counsel the Court stated that the regard evidence evidence, including mitigating testimony ing “nightmarish Williams’s childhood” mother, neighbors two and Williams’s enough, alone, would have been standing “a taped excerpt of a statement and a to sustain finding prejudice. a As the See id. psychiatrist.” at 120 S.Ct. held, expressly Court graphic “the descrip majority’s Contrary descrip to the childhood, tion Williams’ filled with case, tion of the the aggravating factors in privation, abuse reality and that he Two prosecution Williams were severe. retarded,’ ‘borderline-mentally might was expert at sentencing witnesses testified jury’s have appraisal well influenced there a ‘high probability’ “that was that See id. at moral culpability.” 120 pose continuing a serious Williams added). (emphasis S.Ct. 1495 id. at 368-69, See society.” to threat 120 Williams plainly supports the conclusion 1495. And jury heard S.Ct. evidence Supreme that' the California Court unrea- that months the murder for after in.the sonably applied clearly established federal death, Williams which was sentenced in law concluding that Andrews not was woman, savagely an elderly “Williams beat prejudiced by his counsel’s to intro- failure home, cars, a set stole two fire stabbed brutality duce of the extreme evidence that during city robbery, a man set fire youth. as suffered The total having strong urges and confessed to jail, in aggravation, which evidence that- was other and to to choke inmate's break a admitted that which and have come in prisoner’s jaw.” at fellow 120 S.Ct. concerning as rebuttal C.J., (Rehnquist, concurring in part 1495 (which prior, prosecutor violent crimes Williams dissenting part) (quoting hearing testified at the state court- he Taylor, (4th F.3d Cir. introduced), probably would was rev’d, 1998), S.Ct. than the certainly greater aggravating see id. (2000)); L.Ed.2d 389 Williams, Similar to evidence Williams. (providing majority’s de S.Ct. mitigating evidence in An- overlooked evidence, in scription aggravating committed, severe case drews’s includes sustained cluding that Williams: had “two sexual, psychological physical, abuse. separate violent vic elderly assaults on tims,” overlooked specifically setting a fire outside one stronger by the fact that the elderly attacking made even victim’s house before him, in large part inflicted robbing the other abuse at issue leaving elderly was victim, woman, state”; custodians “vegetative the hands his state and was by respected authori- was convicted of for the fire he corroborated broadly arson set ties, trial; jail awaiting previously in the while had accounted.8 Strickland, Supreme question in prejudice The later stated See Court Williams. Pinholster, guidance respect offers "no Williams 563 U.S. Cullen v. unreasonably 1388, 1410-11, (2011) (cit whether state court has deter L.Ed.2d 557 prejudice lacking” mined because Williams, 529 U.S. S.Ct. applied AEDPA deference was Court in Porter Supreme The held S.Ct. 447. decision Supreme Court’s was unreason- the Florida the unreasonableness also demonstrates Porter concluding had not able Court’s conclu- of the California sentencing by the omis- prejudiced at Al- been prejudiced. sion that Andrews key history Porter personal evidence. sion decided Supreme Court though the Supreme Court concluded with- Supreme .Court de- after .California evidence, un- the sentencer out that assistance ineffective nied Andrews’s . . “accurately gauge” the defendant’s assessing able to Porter claim, is still relevant 2254(d).9 culpability” and habeas relief was See “moral 28 U.S.C. prejudice under confidence the sen- because 2527 warranted- Wiggins, S.Ct. been undermined. tencing outcome (approving reliance 447; see also Rompilla, id.- court’s de- the state issued after opinions (stating of the claim were 545 U.S. at cision, the merits when Strickland). is not whether the relevant -test holdings by the governed mitigating it heard the omitted jury, had Porter, failure to to counsel’s due evidence, a could still have returned ver- back- investigate Porter’s adequately death).10 of dict him to 'jury sentenced ground, Williams, in Supreme As in Court abused that he had been never knew death ag- strong case in Porter affirmed Korean decorated and was child preclude not the conclusion gravation does suffering post-traumatic veteran War Porter, 40-44, was unreasonable at 130 that a state 558 U.S. stress. See case, give 1495); Williams, opinion in this we preme Court's its 529 U.S. at see but consideration, (“I J., (O’Connor, analysis be- concurring) prejudice careful 120 S.Ct. 1495 that, prejudice AED- cause Porter considered under agree the Court to the extent also with PA, provides for de- Supreme apply and therefore direction Virginia Court did Strick land, termining what constitutes an application unreasonable”),. In unreasonable was- its prong event, application prejudice of Strick- years two any was decided Williams AEDPA.”). Supreme denied land under California Court before the Thus, petition. the time Andrews’s habeas tat Supreme majority Court decided An criticizes my 10. The reference claim, Rompilla, insisting Rompilla pro- "do[es] drews’s ineffective assistance Williams us, determining guidance what on the issue before highly was relevant vide mitigating prejudicial evidence is un court's omitted a state determination that whether Williams, prejudicial deficiency 529 U.S. at was not was der See counsel's Strickland. description clearly graphic application of estab- unreasonable C'[T]he childhood, precedent.” Majority Williams’ filled abuse and lished reality Rompilla he was ‘border I for the privation, or the n.24. But cite 1032-33 retarded,’ might principle mentally well have influ the Strickland line well-established culpa appraisal moral jury’s prejudice of his on whether enced test for turn does bility.”); jury id. at 120 S.Ct. 1495 could have returned a death see also still J., (O’Connor, concurring) (concluding mitigating if it sentence even had heard the Strickland, prejudiced by failure Williams was counsel’s 466 U.S. evidence. evidence, (“The mitigating in present defendant must substantial S.Ct. 2052 show that, “nightmarish cluding probability child but for there is a reasonable hood,” errors, Virginia Supreme unprofessional and that the the result counsel’s otherwise). concluding A proceeding have been different. was unreasonable probability probability is a suffi- reasonable in the out- majority acknowledges to undermine confidence that Porter .cient 9. The n come.”). is not counsel’s determining The test whether whether the Califor- relevant likely inadequate performance than unreasonably applied “more Supreme Court nia ("Although case.” See id. Majority not altered the outcome Porter Strickland. 693, years California Su- decided after the contrast, denying habeas relief. con- Porter stood pres facts Andrews’s case victed of two murders and faced consider- a very ent different balance factors and of premeditation, able evidence but compel*a different majority’s result. The Supreme Court nonetheless held contention that the Mt. Meigs-evidence at objectively unreasonable the Florida most only carries the “mere possibility Supreme Court to conclude that Porter outcome,” different Majority at prejudiced had not been at sentencing by grossly underestimates the mitigating the omission of the evidence. force of that evidence. Meigs The Mt. miti Porter, S.Ct. 447. The gating evidence Andrews is extraоrdi applies same conclusion in Andrews’s case. narily strong. The majority’s reliance on Despite strong evidence, aggravating ' (cid:127) Visciotti is unfounded. probability there is of a dif- sentencing ferent result at if jury B powerful heard the evidence of the abuse The California Supreme Court álso rea- youth. suffered as a It is unrea- soned that Andrews was prejudiced sonable to conclude otherwise. evidence, because Meigs the Mt. in addi- majority disagrees. Relying on the tion'to abuse Andrews suffered opinion in Court’s Woodford as an adult prison Alabama system, Visciotti, ,and is “not conclusively unambiguously (2002), L.Ed.2d 279 decided the Cali after mitigating” but “could equally proved fornia Court’s decision in this double-edged a sword.” See case, majority it insists was unrea Cal.Rptr.2d 52 P.3d at Ac- 670-71. sonable to hold Andrews no suffered cording Court, to the Supreme California prejudice. Majority at major 1031-32. The “[rjather than' engendering sympathy” ity is mistaken. The of mitigating balance such evidence “could well reinforced aggravating and factors in Visciotti an impression of him as person who had dramatically different from balance become inured to desensitized and violence Visciotti, In potential Andrews. miti disrespect and the law” could have gating evidence at was expert issue testi addressing antisocial'per- confirmed Andrews had “an mony psychological abuse suffered, sonality.” that Visciotti to being Cal.Rptr.2d due See id. 124 raised Visciotti, in dysfunctional family. See 537 P.3d at That is conclusion unreason- 671. 26, 123 U.S. at S.Ct. 357. Visciotti involved able. abuse, allegations of physical or sexual jury The from already knew Andrews’s psychological and the ap abuse failed heinous,crimes of conviction proach experienced what Andrews at Mt. stipulated prior convictions Andrews Meigs. The aggravating evidence Vis- -was antisocial and “had become desensi- prior ciotti included offense which tized disrespect and inured to.violenee and pregnant Visciotti stabbed “a woman as for the An- person considering law.” No lay she trying protect bed her unborn con- drews’s crimes conviction would of, baby.” See id. strong Given evidence jurors clude otherwise. But the knew abso- aggravation and relatively weak miti lutely nothing past that about evidence, gating con might explain person he had become cluded was not unreasonable provide a basis for the exercise California Court to conclude , mercy. prejudiced

Visciotti was not by counsel’s dysfunctional failure to The introduce the fami severe and sustained abuse that ly evidence. Id. at Meigs provides Andrews at Mt. suffered and; unreasonable, legal fic objectively California

such evidence. tion, presented to conclude agreed the evidence otherwise. hearing doubt” “leaves no demeaning horrifically Andrews “endured IV circumstances.” degrading An- grant of court’s conditional The district drews, 52 P.3d at I sentencing should re- relief be affirmed. that sentenced Andrews jury Yet the dissent; spectfully circum- nothing those knew about death that for two jury Had heard stances. subject- teenager Andrews was aas

years inhumane, brutal,' degrading

ed segre- state custodians at a by

abuse for African-American

gated reform school 1960s, there is in the in Alabama

children least one probability POMONA, Plaintiff- CITY OF to exercise swayed juror would have been Appellant, life. There mercy spare Andrews’s “too much Porter, ignored.” now SQM AMERICA CORPO- NORTH (internal S.Ct. 447 Defendant-Appellee. RATION, omitted). No reasonable quotation marks person conclude otherwise. No. 15-56062 by caused prejudice Appeals, United States Court Meigs omission of Mt.' Circuit. Ninth , sentencing compounded the fact mitigat- presented no sympathetic Argued May Submitted In- sentencing. ing evidence at Pasadena, deed, phase of Andrews’s at the August Filed trial, and' of- no witnesses ‍​‌‌​​‌​‌​​​‌‌‌​‌​‌‌​​​​‌‌​‌‌‌‌‌​​‌​‌‌​​‌‌​‌‌​​​‌‍counsel called from psychologists, fered statements short,

family, or coun- friends. defense nothing counter

sel almost prosecution’s portrayal of their client. of Strickland clearly law established

recognizes that some counsel will errors ,.. altering the en- “pervasive have effect Strickland, evidentiary picture.” See

tire An- U.S. at S.Ct. 2052.

drews is such a case.

It is that Andrews unconscionable

should be con sentenced death without egregious

sideration abuse he Meigs. pre

suffered'at Mt. Had counsel Meigs

sented the Mt. sentenc

ing, reasonably that at probable least juror

one to exer been moved It mercy spare

cise life.

Case Details

Case Name: Jesse Andrews v. Kevin Chappell

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 1, 2017

Citation: 866 F.3d 994

Docket Number: 09-99012, 09-99013

Court Abbreviation: 9th Cir.