Lead Opinion
Dissent by
ORDER
The opinion filed August 5, 2015, and reported at
OPINION
Jesse James Andrews appeals from the district court’s denial of all but one of the claims raised in his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The state cross-appeals the district court’s grant of relief on Andrews’s claim that his counsel’s assistance was ineffective at the penalty phase of his capital murder trial. We dismiss as unripe the claim the district court - certified for appeal; -and deny Andrews’s motion to expand the certificate of appealability to include uncertified claims. We reverse the' district court’s grant of relief on the ineffective assistance claim because, under 28 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably apply Supreme Court' precedent in concluding that Andrews was not prejudiced by any deficient performance by his counsel.
I
A
On December 9,1979, police were called to a Los Angeles apartment, where they found the bodies of three murder victims. People v. Andrews,
Wheeler had been stabbed in. the chest six. times and shot in the neck at close range with either a .32- or .357-caliber weapon. His face and head were bruised, and his face had been slashed, with a knife. Brandon and Chism had been strangled with wire coat hangers. Their faces were bruised, Chism’s extensively. Brandon’s anus was extremely dilated, bruised,, reddened and torn, - consistent with the insertion of a penis shortly before her death. There was also redness around the opening of her vagina, and vaginal samples revealed the presence of semen and spermatozoa. All three victims were bound hand and foot.
Id.
Approximately a year later, police arrested Charles Sanders in connection with the murders. Id. Sanders entered into a plea agreement, in which he pleaded guilty
Sanders testified that he and [Andrews] devised a plan to rob Wheeler, a drug dealer. [Andrews] armed himself with a .357 magnum and gave Sanders a .38- or .32-caliber automatic. On the evening of the murders, they visited their Mend, Carol Brooks, who lived in the same apartment building as Wheeler, and then went to Wheeler’s apartment. In response to their knocking, Wheeler, who apparently knew [Andrews],, let them in. Aso inside, the apartment was a woman (Patrice Brandon). Ater smoking some marijuana with Wheeler, [Andrews] and Sanders drew their guns. Sanders tied Wheeler and Brandon with belts and socks, put on a pair of gloves, and began to search the apartment for drugs and money. Except for some powder on a saucer which appeared-to be cocaine, the search was unsuccessful. [Andrews] questioned Wheeler, who denied having any drugs or money. Saying he would make Brandon talk, [Andrews] dragged her into the kitchen and closed the door. Sanders remained in the living room with Wheeler.
Sanders heard [Andrews] hitting Brandon and later heard sounds as though they were having sex. When [Andrews] came out of the kitchen shortly thereafter, Sanders saw Brandon’s pants around her ankles.
[Andrews] put his gun in Wheeler’s mouth. He threatened to kill Wheeler and Brandon unless Wheeler revealed the location of the drugs. Wheeler said the ‘doрe’ was in the attic, and pointed out a trap door leading up to it. Sanders climbed into the attic. While in the attic, Sanders heard two shots. When he came down, [Andrews] told him he had shot Wheeler because the latter had tried to jump out the window. Sanders asked if Wheeler was dead. [Andrews] responded he was ‘standing right up’ on Wheeler when he fired the gun.... When Sanders asked about Brandon, [Andrews] replied he had killed her before leaving the kitchen.
While [Andrews] and Sanders were cleaning up 'the apartment, Ronald Chism knocked on the door and asked if everything was all right. [Andrews] said Wheeler was home and invited him inside. [Andrews] then hit Chism on the head, tied him up, and took him into the bathroom. Sanders saw [Andrews] sitting astride Chism’s back, joining and separating his clenched fists in a tugging motion, apparently strangling Chism. Sanders then saw [Andrews] go into the kitchen and choke Brandon with a wire clothes hanger. When the two left the apartment, ■ [Andrews] gave Sanders some money, saying it was all he had found.
In re Andrews,
At trial, the jury heard Sanders’s testimony as well as’ the testimony of Carol Brooks. Brooks confirmed that Andrews and Sanders visited her on the night of the murders and told her about their plan to “get some money’,’ from Wheeler. People v. Andrews,
The defense primarily focused .on undermining Sanders’s credibility. Id. Two jail inmates who had been incarcerated with Sanders testified. Id. They stated that, while Sanders was incarcerated with them, he made statements suggesting he planned to lie about the murders to shift blame onto Andrews and away from himself. Id.
The jury deliberated for three days before finding Andrews guilty of murder.
At the penalty phase, both the prosecutor and defense counsel made brief presentations. The prosecutor presented evidence through a joint stipulation. Id. He noted that the jury had already found that Andrews had been convicted of murder in 1967. The parties also stipulated that Andrews had been convicted of armed robbery in May 1968, convicted of escape in November 1969, and convicted of robbery in June 1977. Id. The stipulation did not describe the facts of the offenses underlying these additional convictions. The prosecution- also submitted photographs of the dead bodies of Patrice Brandon and Ronald Chism as they were found by the police in the apartment; the photos had been excluded at the guilt phase on the ground they were unduly inflammatory. Id. Finally, the parties stipulated that Andrews’s birth date was July 2,1950. Id.
The defense evidence consisted of two sworn statements that were read to the jury. Id. The statements described facts underlying the incident in September 1966 that formed the basis of Andrews’s 1967 conviction for murder. According to the statements, Andrews and a 17-year-old companion, both of whom were armed, attempted to rob a grocery store, and the companion- fired three shots, killing the grocery store clerk. Id.
In his closing argument, defense counsel focused on mitigating circumstances. He arguecj that Andrews’s crimes wеre unsophisticated, occurred several years apart, and all involved the unexpected escalation of. a planned robbery. Id. He pointed out that Andrews was only 15 years old at the time of the murder of the. grocery store clerk, and was not the shooter. Id. He portrayed Andrews’s conduct as less blameworthy because the murders occurred while Andrews, Sanders, Wheeler, and Brandon were under the influence of illegal drugs. Id.,
After one day of deliberations, the jury returned a verdict imposing the death- penalty for each of the three murder counts. The court sentenced Andrews to death on June 8, 1984. The California Supreme Court affirmed the conviction and sentence on direct appeal on August 3, 1989. People v. Andrews,
B
Andrews filed petitions for- state- post-conviction relief, claiming, among, other things, that his counsel’s assistance was ineffective at the penalty phase because counsel did not adequately investigate and present mitigating evidence. The California Supreme Court summarily denied all of Andrews’s claims, except for his penalty phase ineffective assistance of counsel claim.
⅜—4
The California Supreme Court appointed a referee to take evidence and make factual findings on six questions related to Andrews’s penalty phase ineffective assistance of counsel claim. In re Andrews,
1. What mitigating character and background evidence could have been, but was not, presented by petitioner’s trial attorneys at his penalty trial?
2. What investigative steps by trial counsel, if any, would have led to each such item of information?
3. What investigative steps, if any, did trial counsel take in an effort to gather mitigating evidence to be presented at the penalty phase?
4. What tactical or financial constraints, if any, weighed against the investigation or presentation of mitigating character and background evidence at the penalty phase?
5. What evidence, damaging to petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal, if petitioner had introduced any such mitigating character and background evidence?
6. Did petitioner himself request that either the investigation or the presentation of mitigating evidence at the penalty phase be curtailed in any manner? If so, what specifically did petitioner request?
In re Andrews,
The referee received the testimony of more than 50 witnesses over the span of six years. Id.
In her report, the referee provided one-paragraph summaries and detailed factual findings in response to each question. The California Supreme. Court both summarized the referee’s findings and explained the weight it gave to these findings. Id.
In response to the first question (what mitigating character and background evidence could have been, but was not, presented by petitioner’s trial attorneys at his penalty trial), the referee identified three broad categories of mitigating evidence that were available but not presented to the jury: Andrews’s family background; the conditions of his confinement in a juvenile reform school and in the Alabama prison system; and his mental health. Id.
Summarizing the referee’s report, the California Supreme' Court statéd that “[a]t Mt. Meigs, petitioner encountered appalling conditions'.” Id. According to the referee’s report, one witness described it as “a farming operation and a penal colony for children,” while others described “inhuman conditions, inadequate food and clothing and severe beatings” with “sticks, broom handles, tree limbs, and hoe handles ... or fan belts.” Among other things, the referee found that" Andrews “was subjected to beatings, brutality, inadequate conditions and sexual predators.” Id.
After his release from Mt.. Meigs, Andrews began to associate with Freddie Square, an older boy with “manipulative and criminal tendencies.” Id. In September 1966, three months after Andrews’s release, Andrews and Square entered a grocery store, drew guns, and announced that they were conducting a robbery. Id. When “the store clerk placed his hand down the front of his apron,” Square shot the clerk, killing him. Id. Andrews “acted as a look
Summarizing the referee’s findings about conditions in the four different prisons in which Andrews was confined over ten years, the California Supreme Court stated:
[The referee] described conditions in these institutions as abysmal, characterized by severe overcrowding, racial segregation, substandard facilities, no separation of the tougher inmates from younger or smaller inmates, constant violence, the persistent threat of sexual assaults and the constant presence of sexual pressure, the availability and necessity of weapons by all inmates,- and degrading conditions in disciplinary modules. [Andrews] not only received beatings but was also personally subjected to sexual assaults.
Id.
Shortly after his release from prison in 1976, Andrews engaged in' an attempted robbery of a' laundry. Id. According to testimony at the reference hearing:
Mobile Police Officer Pettis testified that on March 23,1977, he responded to a robbery call.. Entering the store from which the call came, he and other officers saw [Andrews], holding a crying young woman hostage with a cocked gun at her head. He told the officers to leave and “continued to repeat, ‘Someone’s going to -get shot, I’m.going to shoot.’” The officers withdrew. Ultimately, [Andrews] surrendered to the officers after releasing the young woman and another woman whom he had also held hostage.
Id.
In California, Andrews met Debra Pickett, with whom he had a stable relationship. Id.
The referee also described the testimony from mental health experts that could have been presented at the penalty phase. Summarizing the referee’s report, the California Supreme Court noted that defense experts diagnosed Andrews with a range of mental disorders, including attention deficit disorder, post traumatic stress disorder (PTSD), and mild to moderate organic brain impairment, in part due to drug use and possibly due to a head injury in prison. Id. The defense experts opined that Andrews’s learning disability, the adverse circumstances of his childhood, the impact of the correctional systems, and the PTSD made his commission of the murders and sexual assault more understandable and less morally culpable. Id.
• The California Supreme Court’then recounted the referee’s findings on questions two, three, and four. These questions addressed the investigative steps trial counsel took to gather mitigating evidence for the penalty phase, steps the trial counsel could have taken to do so, аnd the constraints that weighed against the trial counsel investigating or presenting mitigating character and background evidence at the penalty phase. Id.
The California Supreme Court also summarized the referee’s findings about the constraints placed on trial counsel in conducting their penalty phase investigation, though the death of Lenoir limited this aspect of the referee’s investigation. Id.
In addition to the constraints imposed by Andrews, the referee found that counsel were concerned about the effects of using prisoners as witnesses. Id. Miller doubted that jurors would be impressed by the credibility and demeanor of the prisoners, and he was concerned that calling prisoners as witnesses would risk disclosure of Andrews’s misconduct in prison. Id. The referee found that Andrews had been involved in two stabbings of other inmates and had escaped from custodial facilities on two occasions. Id. Further, the referee found that the inmates who provided testimony at the reference hearing, had “substantial violent criminal records and these offenses included a substantial number of escapes.” Id. Finally, Miller testified that he and Lenoir decided not to present evidence about Andrews’s upbringing, because the house and neighborhood in which Andrews grew up resembled the house and neighborhood in which Miller was raised, and so counsel thought a “poverty-presentation” lacked viability. ■/&
The California Supreme Court also summarized the referee’s views on additional investigative steps that counsel could have taken. Id.
In addition, although there was “no significant written history” in the area of mental health, and there was little evidence of “family members having mental impairments,” the referee found that counsel could have appointed psychiatric experts. Id.
In addressing question five (what evidence, damaging to petitioner, but not presented by the prosecution at the guilt or penalty trials, would likely have been presented in rebuttal, if petitioner had introduced any such mitigating character and background evidence), the referee found that the prosecution’s rebuttal presentation could have included evidence about two of Andrews’s prior convictions. Id.
Further, the referee determined that the prosecution could have caked its own mental health experts to rebut Andrews’s evidence. Id.
Finally, in response to question six (did petitioner himself request that either the investigation or the presentation of mitigating evidence at. the penalty phase be curtailed in any manner, and, if so, what specifically did- petitioner request), the rеferee concluded that there was no doubt that Andrews “adamantly” refused to allow counsel to approach his mother and family or to have them testify. Id. This conclusion was based on the trial records and the consistent testimony of witnesses at the reference hearing. Id. In response to specific questioning from the trial court “regarding his reluctance to have his mother called,” and in the face of the trial court’s advice that his mother’s testimony would be valuable, Andrews “was very precise in his response, telling the judge that he fully understood and that this was his choice and no one else’s.” Id. (emphasis omitted). The referee further noted that the lead counsel, Lenoir, “represented on the record at trial that petitioner refused to have' his mother called and that he ‘had his reasons,’ which Mr. Lenoir did not wish to disclose to the court.” Id. The referee also found that “petitioner went so far as to threaten- to disrupt the trial if his mother were called.” Id. Andrews’s opposition to having counsel involve his family was corroborated by his older sister and uncontra-dicted by his mother.
After considering ■ “the record of the hearing, the referee’s factual findings, and petitioner’s original trial,” the California Supreme Court concluded that “petitioner received constitutionally adequate representation, and any inadequacy did not result in prejudice.” Id.
In reaching this conclusion, the court began by stating the requirements for an ineffective assistance of counsel claim under Strickland v. Washington,
Turning first to the deficiency prong, the California Supreme Court concluded that Andrews had not established that his counsel’s performance was defective. Its reasoning was as follows. Under Strickland, “the Supreme Court- specifically addressed counsel’s duty to investigate and made clear courts should not equate effective assistance with' exhaustive investigation of potential mitigating evidence.” Id.
. Applying this deferential standard in light of.the evidence developed by the referee, the California Supreme Court concluded that “counsel’s decision not to mount an all-out investigation into petitioner’s background in search of mitigating circumstances was supported by reasonable professional judgment.” Id.
First, the California Supreme Court found that counsel could have reasonably decided not to pursue ■ information from Andrews’s family in light of Andrews’s decision to curtail such an investigation.- The court noted that while “the referee found that counsel could have discovered the mitigating evidence presented at the reference hearing with ‘simple persistence,’” the evidence showed that Andrews limited the investigation counsel could undertake by insisting that counsel not involve his family. Id.
Fui-ther, to the extent counsel interviewed Andrews’s mother and attempted to contact family members despite Andrews’s objection, the court found that counsel could have reasonably concluded that the information they obtained was not powerfully mitigating. Id.
Second, the California Supreme Court found- that counsel could have reasonably decided not to develop evidence regarding the conditions of Andrews’s confinement. Id.
Finally, the California Supreme’ Court concluded that counsel had been reasonable in adopting the strategic approach of minimizing Andrews’s “culpability by circumscribing his background and mitigating his criminal' responsibility.” Id.
3
The California Supreme Court next confirmed that this conclusion was consistent with then clearly established Supreme Court precedent, Bell v. Cone,
Next, the California Supreme Court turned to Bell v. Cone,
Finally, the California Supreme Court considered Williams v. Taylor,
The California Supreme Court therefore concluded that then-existing Supreme Court precedent was consistent with its conclusion that Andrews had not established that “in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance.” Id,
4
The California Supreme Court next turned to the prejudice prong, As explained in greater detail below, the California Supreme Court determined, based on its review of the evidence adduced at the reference hearing and the rebuttal evidence that could have been introduced during the penalty phase, that “it is not ‘reasonably] proba[ble]’ petitioner was prejudiced by counsel’s rejection of a defense premised on evidence of petitioner’s upbringing, the Alabama prison conditions he experienced, and his mental health in light of the circumstances of the crimes, given the ambiguous nature of some mitigating evidence and the substantial potential for damaging rebuttal.” Id.
“Having considered the record of the hearing, the referee’s factual findings, and
5
After the California Supreme Court rejected Andrews’s claims, Andrews filed a habeas petition in federal district court. His amended petition raised 32 claims, including multiple subclaims.
In a lengthy ruling on the nierits of the petition, the district court denied 31 claims, but granted relief .on Andrews’s claim that his counsel were ineffective at the penalty phase of his trial for failing to investigate and present additional mitigating evidence. In reaching this conclusion, the district court did not apply the standard mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA). Instead of determining whether the California Supreme Court’s rejection of this ineffective assistance of counsel claim' was “contrary to, or involved an unreasonable application of’ Strickland, as required by 28 U.S.C. § 2254(d)(1), the district court reviewed the evidence produced by the referee on this issue de novo and concluded that counsel’s “failure to adequately investigate and discover evidence of a life filled with abuse and privation is sufficient to establish prejudice under Strickland.” Cf. Richter,
Andrews timely appealed, challenging the district court’s denials of Claim 25 and several uncertified claims. The state cross-appealed the district court’s grant of relief on Andrews’s ineffective assistance of counsel claim. After briefing on his appeal was complete, Andrews moved for permission to brief an additional uncertified claim for habeas relief on the ground that it would violate the Eighth Amendment to execute him after a long delay from the date of his sentencing. We granted the motion.
II
We review a district court’s grant or denial of habeas relief de novo. Moses v. Payne,
A
AEDPA applies to Andrews’s federal habeas petition, which was filed after April 24, 1996. See Lindh v. Murphy,
A Supreme Court decision is not clearly established law under § 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court, Wright v. Van Patten,
A state court decision is “contrary to” Supreme Court precedent if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams,
The Supremе Court has made clear that § 2254(d) sets forth a “highly deferential standard ..., which demands that state-court decisions be given the benefit of the doubt.” Pinholster,
B
The clearly established federal law for ineffective assistance of counsel claims, as determined by the Supreme Court, is Strickland v. Washington,
In determining whether a state court’s adjudication of an ineffective assistance of counsel claim was an unreasonable application of Supreme Court precedent, we may consider how the Supreme Court itself has applied Strickland to other factual contexts, but this is merely “illustrative of " the proper application of [Strickland’s] standards.” See Wiggins v. Smith,
Under Strickland, deficient performance is performance that falls “below an objective standard of reasonableness” and is thus outside of “the range of competence demanded of attorneys in criminal cases.”
The Supreme Court has also provided guidance for applying Strickland to determine whether counsel’s “deficient performance prejudiced the defense,” Strickland,
1
The first step in determining whether counsel’s deficient performance prejudiced the defendant at the penalty phase is evaluating “the totality of the available mitigation evidence.” Williams,
Mitigation evidence is a broad category, as a jury must be permitted to consider all relevant mitigating factors. Lockett v. Ohio,
Similarly, evidence of a defendant’s mental or emotional difficulties may lead a jury to conclude that a defendant is less culpable than defendants without such difficulties. Penry,
Evidence of conduct or behavior demonstrating the defendant’s good character may also be mitigating. In Williams, the Court gave weight to evidence that the defendant had turned himself in, alerted pplice to a previously undetected crime, expressed remorse, cooperated with police, and behaved well in prison,
After identifying the evidence that the petitioner claims to be mitigating; a court must weigh its strength by assessing its likely impact on a jury. This weighing process • includes evaluating whether the evidence’s impact on the jury might be aggravating rather than mitigating. See Pinholster,
2
The second step in determining whether counsel’s deficient performance prejudiced the defendant at the penalty phase is evaluating the weight of the aggravating evidence and any rebuttal evidence that the government could have adduced had the mitigating evidence been introduced. See Williams,
Evidence about a defendant’s pri- or criminal history is also aggravating and can be introduced in rebuttal, and a severe criminal history carries great weight. See Woodford v. Visciotti,
Rebuttal evidence may also directly undermine the value of the mitigation evidence. For example, the Supreme' Court noted in Pinholster that it would be “of questionable mitigating value” for defense counsel to introduce expert testimony diagnosing a defendant with bipolar mood disorder and seizure disorders, because such evidence would invite rebuttal by a state expert, who could reject the diagnosis of bipolar disorder and offer a different diagnosis of antisocial personality disorder. Pinholster,
3
The third step in determining whether counsel’s deficient performance prejudiced the defendant at the pеnalty phase is to “reweigh the evidencem aggravation against the totality of available mitigating evidence,” Wiggins,
The Court has found a reasonable probability of a different outcome when scant and weak aggravating evidence could have been presented in rebuttal to strongly mitigating evidence. See Wiggins,
In reweighing aggravating and mitigating evidence, the Court has also examined whether mitigating evidence would be merely cumulative or would have significantly altered the information provided to the sentencer. See Strickland,
These Supreme .Court opinions illustrate that under Strickland’s prejudice prong, cumulative - mitigating evidence does not support a conclusion that there would be a reasonable probability of a different outcome. New mitigating evidence can support such a conclusion only if it is sufficiently strong, and the known or additional aggravating evidence is not overwhelming.
c
In light of this guidarice, we now evaluate the California Supreme Court’s rejection of Andrews’s claim that he was preju
In considering whether any deficiency by Andrews’s counsel was prejudicial, the California Supreme Court correctly followed Strickland in asking whether, even if counsel were deficient, Andrews’s defense was not prejudiced by any such deficiency because a different result was not reasonably probable. See In re Andrews,
1
The court first considered the totality of the mitigating evidence presented at trial, as well as what mitigating evidence could have been presented by a competent attorney, based on the six-year review and report by the referee. See Williams,
The California Supreme Court then evaluated the strength of this mitigating evidence by considering, among other things, whether it might be viewed by a jury as aggravating. See Burger,
In addition, the California Supreme Court reasonably determined that the evidence -regarding the prison conditions was double-edged. On the one hand, the prison conditions evidence left it in “no doubt [that Andrews] endured horrifically demeaning and degrading circumstances.” Id. On the other hand, the evidence would be presented primarily through the testimony of Andrews’s former fellow inmates, who had' serious criminal records that could “draw[ ] an unfavorable comparison” with Andrews. Id.
The dissent claims that the California Supreme Court was unreasonable in concluding that the Mt. Meigs evidence could have constituted' a double-edged sword because “[t]hé jury already knew from Andrews’s heinous crimes of conviction and from the stipulated prior convictions that Andrews was' antisocial and ‘had become desensitized and inured to violence and disrespect for the law.’ ” Dissent at .1059. However, the dissent’s conclusion is factually incorrect. Because the stipulation presented to the jury did not describe the facts of each of the offenses underlying Andrews’s prior convictions, the jury did not hear that Andrews held a woman hostage with a gun to her head when robbing a laundry business or that the taxi driver in the 1968 robbery heard Andrews say “[l]et’s shoot him” and then fired at least two shots at him. See supra at 1010. Ac
2
Consistent with Supreme Court -precedent, the California Supreme Court not only assessed the weight of the mitigating evidence and its likely impact on a jury but also evaluated the weight of the aggravating. evidence at trial, as well as any additional rebuttal evidence that could have been introduced. See Williams,
Finally, the California Supreme Court reasonably concluded that the prosecution could have presented its own mental health experts in rebuttal, and could have used the mental health evidence-to Andrews’s disadvantage on cross examination.. Id.
3
After evaluating the mitigating and aggravating evidence, the California Supreme Court re-weighed it and assessed whether it was reasonably probable that, in the absence of any deficient performance by counsel, the sentencer “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland,
Relying on the Supreme Court’s decisions in Williams and Porter, Andrews argues that the California Supreme Court’s decision on the issue of prejudice was an unreasonable application of Strickland.
In Williams, the police found a man dead in his residence.
Nor did counsel introduce other mitigating evidence readily apparent from the record, such as the fact that defendant was “borderline mentally retarded.” Id. at 396,
Finally, at sentencing, “[t]he weight of defense counsel’s closing ... was devoted to explaining that it was difficult to find a reason why the jury should spare [defendant’s] life.” Id. at 369,
The state court here discussed Williams at length and reasonably distinguished it as having “substantially dissimilar facts.” In re Andrews,
Andrews also argues that the California Supreme Court’s decision was unreasonable in light of Porter. Although Porter was decided years after the California Supreme Court’s opinion in this case, we give its prejudice analysis careful consideration, because Porter considered prejudice under AEDPA, and therefore provides direction for determining what constitutes an unreasonable application of the prejudice prong -of Strickland under AEDPA. Neverthe
In Porter, the defendant was convicted of two counts of first-degree murder for shooting his former girlfriend and her boyfriend.
The defendant represented himself during the guilt phase, id. at 32,
The Supreme Court determined that the state court unreasonably applied Strickland in holding that the defendant was not prejudiced by counsel’s failure to introduce this mitigating evidence. The Court held that the mitigating evidence was strong, while the weight of the evidence in aggravation was less substantial.' Id. The Court also held that the state court was unreasonable in discounting the defendant’s childhood abuse and military service. Id. at 43, 130- S.Ct. 447. It ■yvas “unreasonable to conclude that [defendant’s] military service would be reduced to inconsequential proportions, simply because the jury would also have learned that [defendant] went AWOL on more than one occasion.” Id. (internal citation and quotation marks omitted). The Court reasoned that “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those whó fought on the front lines as' [defendant] did,” and that the “relevance of [defendant’s] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [defendant].” Id. at 43-44,
The Court’s reasoning in Porter does not lead to the conclusion that the California Supreme Court unreasonably applied the prejudice prong of Strickland here.
Further, the aggravating circumstances in Porter were different and less weighty than those in this case. Indeed, Porter noted that the state court had stricken the “heinous, atrocious, or cruel” aggravating factor because the evidence in the record was “consistent with the hypothesis that Porter’s was a crime of passion, not a crime that was meant to be deliberately' and extraordinarily painful,” id. at 33, 130 S.Ct. -447, while here the California Supreme Court found that Andrews’s brutal rape and strangulation of Brandon, and the shooting and strangling deaths of the other victims, evidenced a “callous disregard for human -life” and were accomplished with “considerable violence and evident sangfroid,” In re Andrews,
Woodford v. Visciotti, a Supreme Court case that provides direction for determining under AEDPA what constitutes an unreasonable application of Strickland, is more closely on point.
Here, as in Visciotti, the state court reweighed Andrews’s mitigating evidence against the brutal circumstances of the crime and Andrews’s prior criminal history, and determined there was no reasonable probability that the sentencer would determine that “the balance of aggravating and mitigating factors did not warrant imposition of the death penalty.” Id. at 22,
The dissent purports to recognize that “our deference to state court decisions is at its zenith on federal habeas review,” Dissent at 1048, but fails to apply this standard. Here, the California Supreme Court determined that there was not a reasonable probability that the outcome would have been different had the evidence adduced at the reference hearing (along with the rebuttal evidence) been presented to the jury. In re Andrews,
The dissent’s errors are even more glaring on AEDPA review. The Court has told us frequently and emphatically that “[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.” Lockyer,
Because the state court’s rejection of Andrews’s penalty phase ineffective assistance of counsel claim was not contrary to or an unreasonable application of Supreme Court precedent, we may not grant relief on this claim. § 2254(d)(1). We therefore reverse the district court’s contrary conclusion.
D
Because we decide Andrews’s claim on prejudice grounds, we need not address the parties’ arguments regarding whether counsel’s performance was deficient at the penalty phase. Strickland,
Ill
Having addressed the state’s cross-appeal, we now turn to Andrews’s appeal of the district court’s dismissal of his sole certified claim (Claim 25) that California’s use of its lethal injection protocol to execute him would violate his Eighth Amendment rights. According to the district- court, the California lethal injection protocol mirrored the Kentucky lethal injection protocol upheld by 'the Supreme Court against an Eighth Amendment challenge in Baze v. Rees,
At the time the district court ruled in July 2009, California did not have a lethal injection protocol in place. As explained in Sims v. Department' of Corrections, the California Department of Corrections and Rehabilitation (CDCR) has the responsibility for developing a procedure for executions by lethal injection.
IV
Andrews also raises several uncertified claims based on the following legal theories: (1) unconstitutional delay between sentencing and execution under Lackey v. Texas,
We first turn to the question whether Andrews must obtain a COA for these claims under 28 U.S.C. § 2253(c).
Here, Andrews won relief at the district court based on his theоry of ineffective assistance of counsel * during the penalty phase of his trial. The district court ordered that “the State of California shall, within 120 days from the entry of this Judgment, either grant Petitioner a new penalty phase trial, or vacate the death sentence and resentence the Petitioner in accordance with California law and the United States Constitution.” Accqrdingly, Andrews’s rights under this judgment were for a new penalty phase trial or resentencing within a fixed time, and Andrews may urge any potential claim present in the record that would entitle him to a new penalty phase trial or resentencing without taking a cross-appeal or obtaining a COA. See id. at 800-02.
But none of Andrews’s uncertified claims support the district court’s judgment. Five of his claims seek a new guilt phase trial (his Strickland, Br'ady/Napue, Trombetta, and cumulative error claims, and a factual innocence claim).
We lack jurisdiction to consider uncertified claims unless we determine that Andrews “has made a substantial showing of the denial of a constitutional right” and grant a COA. 28 U.S.C. § 2253(c)(2); see also Ninth Circuit Rule 224(e) (“Uncertified issues raised and designated [in a petitioner’s opening brief] will be construed as a motion to.expand the COA....”). Habeas petitioners must make a “showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
A
We first consider Andrews’s claim that his execution would violate the Eighth Amendment due to the long delay between his sentence and execution. Andrews did not raise this claim in his opening brief on appeal, but moved to file a supplemental brief raising this claim after a district court issued a decision holding that under Furman v. Georgia,
In his brief, Andrews stated that he raised this claim to the district court as Claim 26. In Claim 26, Andrews had argued that executing him after 22 years on death row would be cruel and unusual punishment in violation of the Eighth Amendment and would serve no retributive or deterrent penological purpose. Claim 26 also asserted that Andrews did not cause any unnecessary delays, but merely sought to vindicate his constitutional rights in a system that produced delays. Andrews exhausted this claim by raising it to the California Supreme Court, which summarily denied it.
. The district court rejected this claim on the merits on the ground that there has been no demonstration of “any support in the Ameriсan constitutional tradition or in [Supreme Court] precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed,” a quote from Knight v. Florida,
On appeal, -Andrews argues that the delay in carrying out the death sentence makes California’s death penalty unconstitutional both on its face and as applied to him. After discussing in detail Jones’s reasoning and conclusion that the California death penalty system is unconstitutional, Andrews argues that no fairminded jurist could disagree with such a conclusion in his case, because he has been continuously confined under sentence of death for more
Before we can address this claim, we must consider several procedural hurdles. As a threshold matter, Andrews did not raise this claim in his opening brief on appeal. While we generally deem a petitioner to have waived any issue not raised in an opening brief, see United States v. Ullah,
Next, the state argues that Andrews’s claim was not fairly presented to the California Supreme Court or the district court, and so is both unexhausted and waived. “A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his' remedies in state court.” Dickens v. Ryan,
The state asserts that there is a distinction between the sort of Eighth Amendment claim that Andrews raised to' the California Supreme Court and in district court (sometimes referred to as a Lackey claim), and the Eighth Amendment claim based on Jones he is raising here, such that the state courts lacked an opportunity to consider it. Specifically, the state argues that a Lackey claim is an individual challenge, based on the theory that executing a prisoner who has spent many years on death row violates.the prohibition on cruel and unusual punishment of that prisoner, while Jones was based on the theory that the- California system- itself creates the constitutional infirmity, because inordinate delay makes the system arbitrary and unable to serve a deterrent or retributive purpose, in violation of the Eighth Amendment.
We disagree that Andrews is raising a systemic challenge to California’s administration of its death penalty system, which would be a new and unexhausted claim. Rather, Andrews’s claim before the state court, the district court, and on appeal here is essentially the same constitutional claim: that his right to be free from cruel and unusual punishment under the Eighth Amendment is violated by his lengthy incarceration while under a sentence of death.- Andrews has not introduced any new facts or evidence since he raised this argument to the state court. Andrews’s supplemental brief points to Jones ⅛ conclusion that there are systemic delays in imposing the death penalty throughout the California system, but uses this conclusion to support his Lackey claim that “inherent delay in capital cases” renders executions unconstitutional. Accordingly, Andrews’s references' to Jones do not “fundamentally alter the legal claim already considered by the state courts.” Dickens,
We now consider Andrews’s motion for a COA for this claim. The district court denied Claim 26 because the state court’s rejection of this claim was not an unreasonable application of Supreme Court precedent. No reasonable jurist would find the district court’s ruling debatable or wrong. See Slack,
We reached a similar determination in Jones v. Davis, where we held that neither
Because Andrews has not made a “substantial showing” that his Eighth Amendment rights were violated, see 28 U.S.C. § 2253(c)(2), we deny a COA for this claim,
B
We next turn to Andrews’s four uncerti-fied claims alleging that trial counsel were ineffective under Strickland for failing to investigate and present four categories of evidence.
The first claim relates to the police’s investigation of suspects before Sanders was arrested and agreed to testify pursuant to a plea agreement. During the investigation, police officers took statements from at least nine witnesses and informally interviewed many others, who provided information about: activities in and around Wheeler’s apartment in the days leading up to the murders. According to these statements, Wheeler’s drug customers frequented his apartment, disturbances were a regular occurrence, and shootings had occurred in the apartment. The police did not find any corroborating physical or testimonial evidence suggesting that any of these drug customers was the killer. When investigating Wheeler’s apartment, the police found fingerprints of individuals who had been .seen in the apartment on the evening the murders occurred, but nothing linking them to the crime. The police arrested one drug dealer who worked with Wheeler, but ultimately released him. When interrogated, this drug dealer denied murdering Wheeler, but told the police that a Mexican Mafia member had told him that the Mexican Mafia had murdered Wheeler. He did not provide any corroborating evidence to support this story.
Relying on this evidence, Andrews claims that his trial counsel were ineffective for failing to investigate and present evidence that third parties, such as Wheeler’s customers and fellow dealers, had the motive and opportunity to commit the murders due to their drug-related dealings with Wheeler. The state court summarily rejected this claim when it denied Andrews’s second state habeas petition. The district court denied relief on this claim.
We conclude that reasonable jurists would not find debatable or wrong the district court’s conclusion that this claim fails under Strickland and AEDPA, See Slack,
Second, Andrews argues that counsel were ineffective for failing to investigate or present evidence that semen found on Brandon’s body could not have come from Andrews. The district court’s conclusion that the state court did not unreasonably apply Strickland in rejecting this claim is not debatable, because the state court could reasonably conclude that counsel’s failure to introduce such evidence was not prejudicial. The record shows only that slides containing semen found on Brandon’s body contain biological markers that some people secrete and others do not. Andrews does not secrete these markers, but the record is silent as to whether Brandon was a secretor. Andrews offers statistical evidence suggesting that Brandon was probably not a secretor, but the evidence is not conclusive. Indeed, even other experts testifying for Andrews noted that what minimal evidence they obtained was subject to challenge. In light of the eyewitness testimony about Andrews’s involvement in the murders, and his palm prints next to Brandon’s body, reasonable jurists would not dispute that the state court reasonably concluded that any deficiency by defense counsel was not prejudicial.
Next, Andrews raises two claims relаting to the police investigation of fingerprint evidence found at Wheeler’s apartment. As explained by the state court on direct appeal, two of the police’s fingerprint experts, Howard Sanshuck and Donald Keir, testified at trial that they compared 50 fingerprints found in Wheeler’s apartment with Andrews’s fingerprints and palm prints. People v. Andrews,
On appeal, Andrews claims that his counsel were deficient in failing to investigate two different lines of defense, First, Andrews claims that counsel performed deficiently by failing to present evidence that Andrews’s fingerprints could have been left in Wheeler’s apartment due to his prior visits. Second, Andrews claims that counsel should have uncovered and used the police’s original, misidentification of his palm prints,. Andrews points to other reports in the record which he claims shows that Keir and a third analyst, William Leo, also misidentified his fingerprints. The district court rejected this claim. In light of the unrebutted evidence that the palm prints found on either side of Brandon’s body were Andrews’s prints, no reasonable jurist would dispute the district court’s determination that the state court could reasonably have concluded . that counsel’s handling of the fingerprint .evidence did not prejudice Andrews’s defense.
Finally, Andrews claims that counsel were ineffective for failing to investigate or present evidence regarding his alibi the night of the murder. The record shows that Andrews gave a defense investigator the names of two alibi witnesses and information on how to locate them, but Andrews did not provide any affidavits from these witnesses to thé state court,' or any further information about the nature of their testimony. The state court and district court rejected this claim. In light of the detailed testimony from Sand.ers and Brooks, the evidence of Andrews’s palm prints on either side of Brandon’s body, and the lack of any evidence regarding the alibi witnesses, no reasonable jurist would dispute that the state court reasonably. applied.Strickland in concluding that counsel’s failure to further investigate these witnesses was not prejudicial.
Andrews relies on United States v. Valenzuela-Bernal for the proposition that he could establish his ineffective assistance of counsel claim without showing how his alibi witnesses would have testified, because he needed to show only that their' testimony would be material and favorable to his defense.
In sum, the state court did not unreasonably apply Strickland in concluding that Andrews did not create a “substantial, not just conceivable” likelihood of a different rеsult, or that “any real possibility of [Andrews’s], being acquitted was eclipsed by the remaining evidence pointing to guilt,” Richter,
C
Andrews argues that the state court erred in rejecting two claims that his rights under Brady were violated. Brady requires the state to disclose “evidence that is both favorablé to the accused and material either to guilt or to punishment.” U.S. v. Bagley,
Andrews claims the state suppressed two pieces of evidence. First, he contends that the prosecution failed to disclose a case file maintained by the Los Angeles Police Department, termed a “murder book,” which contained material evidence including the third party culpability and fingerprint evidence also advanced in support of his ineffective assistance of counsel claims. The state court could reasonably have rejected this claim because the state had provided counsel with a chronology of the police investigation referring to much of the allegedly suppressed murder book evidence. The district court held the state court’s conclusion was not an unreasonable application of Brady. No reasonable jurist could disagree with this conclusion, because the state court could reasonably have concluded that the evidence was not suppressed under Brady. See United States v. Dupuy,
For the same reason, no reasonable jurist could disagree with the district court’s rejection of Andrews’s second Brady claim, that the prosecution withheld the fact that Brooks was subject to charges of welfare fraud. The state court could have reasonably concluded that defense counsel had sufficient information to discover that charges had been filed, because defense counsel knew that Brooks was being investigated for welfare fraud, and questioned her about it at trial, outside the presence of the jury. See Dupuy,
Andrews also raises claims under Na-pue, which provides that the state may not “knowingly use false evidence, including false testimony” or “allow[ ] it to go uncorrected when it appears.”
D
Andrews makes three claims based on the fact that between 1993 and 1995, all biological evidence in this case was destroyed, except for -50 fingerprint cards, one vaginal slide, one oral slide, and one anal slide. His petition to the California Supreme Court claimed that the destruction of the evidence violated his due process rights, under Trombetta and Arizona v. Youngblood, a case that held that the government’s “failure to preserve potentially useful evidence” before trial does not violate a defendant’s due process rights unless the criminal defendant .can show that the government acted in bad faith.
Andrews’s third claim is that the destruction of evidence denied him access to the courts to vindicate an underlying claim of factual innocence. However, as the district court recognized in rejecting this claim,- he cites no Supreme Court precedent clearly establishing that destruction of evidence after a defendant is convicted violates a right of access to the court's. Christopher v. Harbury, on which Andrews relies, is not on point: it held that a plaintiffs claim that government officials misled her in connection with her husband’s disappearance did not state a constitutional denial of access claim upon which relief could be granted.
E
In light of the above, we conclude that -no reasonable jurist would disagree
Nor would any reasonable jurist disagree with the district court’s conclusion that the state court did not err in rejecting Andrews’s factual innocence claim. The state court could have reasonably concluded that Andrews’s introduction of slides showing that biological markers found in the semen on Brandon’s body hqd not been secreted by Andrews and may not have been secreted by Brandon, described above, was insufficient to “go beyond demonstrating doubt about his guilt [to] affirmatively prove that he is probably innocent.” See Carriger v. Stewart,
In sum, because the district court’s conclusions, under AEDPA review, are not debatable among reasonable jurists, Andrews fails to make the “substantial showing of the denial of a constitutional right” required for a COA to issue, and we deny his request for one as to each of his uncer-tified claims.
V
Andrews contends that the district court erred in denying his motion for an evidentiary hearing on 16 claims (Claims 1-8, 15, 19-23, 25, and 32), which include all but one of the claims on appeal here.
In light of the foregoing, we REVERSE the district court’s grant of relief, DISMISS the Eighth Amendment lethal injection claim as unripe, and DENY the petition for a COA of the uncertified claims.
REVERSED in part, DISMISSED in part, and PETITION DENIED in part.
Notes
. Andrews was convicted after his second trial, because the jury failed to reach a verdict in the first trial,
. At the reference hearing, Andrews disputed the finding that he did not want his family ‘ involved, but the California Supreme Court noted that "the referee credited Miller’s testimony that [Andrews] objected not only to his
. Despite the constraints imposed by Andrews, the California Supreme Court found that Andrews's counsel traveled to Mobile, Alabama twice to search for relatives, poten- ■ tial witnesses, aiid legal documents, and also traveled to Pensacola, Florida to interview Andrews's mother. In re Andrews,
. Relying on the opinion of the dissenting Justice in the California Supreme Court’s opinion in this case, In re Andrews,
. The dissent erroneously argues that no reasonable counsel could have decided to avoid the dangers of relying on prisoner testimony because "the Mt. Meigs' evidence was not dependent upon testimony from prisoners” but rather could have been offéred by’the "experts and respected observers” who testified at Andrews’s state court evidentiary hearing. Dissent at 1049-50, 1050-51. In reaching this conclusion, the dissent substitutes its de novo finding for the findings of the California Supreme- Court, which held that "whatever mitigating evidence may have been disclosed by pursuing the conditions of incarceration petitioner experienced, counsel knew such evidence would come primarily from the testimony of petitioner's fellow prisoners, many of whom were hardened criminals with serious felony records.” In re Andrews,
. The dissent argues that the California Supreme Court was unreasonable in excusing counsel's failure to discover Mt. Meigs evidence based on Andrews’s refusal to involve his family. Dissent at 1049-50. This strained reading of the California Supreme Court's broad statement about mitigating evidence is itself unreasonable. In fact, the California Supreme Court never stated that there was a connection between family restrictions and prison conditions. Rather, the court concluded that Andrews’s restrictions on his family’s involvement would have limited counsel’s ability to develop Andrews’s background and childhood. In re Andrews,
. The dissent criticizes the California Su- ; preme Court for concluding that Andrews’s counsel adopted a reasonable strategy by, among other things, portraying Andrews as a follower who was less culpable than others. Relying again on the dissenting California Supreme Court Justice, the dissent claims that "the only evidence before the jury was that petitioner was the instigator rather than a - follower.” Dissent at 1052 (quoting In re Andrews,
. Andrews and the dissent argue that the prosecutor would not have put on additional rebuttal evidence. Dissent at 1053, 1057. But the California Supreme Court rejected this argument, finding that the presentation of mitigating evidence wpuld have prompted the prosecutor to shift the focus of his penalty phase case, put on additional witnesses, and use cross-examination and closing argument to further damage Andrews’s mitigation case. In re Andrews,
. The dissent argues that the California Supreme Court erred in relying on Burger, Bell, and Williams in concluding that Andrews’s counsel were not deficient. Dissent at 1051— 53, 1054-55, This criticism is meritless, however, because it is based on de novo review rather than the deference required under AEDPA. For example, in concluding that “[t]he California Supreme Court’s reliance on Burger is unreasonable,” Dissent at 1051-52, the dissent takes a de novo approach that is not permitted under AEDPA, where a court must consider whether "fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents,” Richter,
. Neither party disputes that the claims in this case were "adjudicated on the merits” by the California Supreme Court, and that its decision constitutes the "last reasoned decision” of the state court with respect to those
. Andrews argues that the California Supreme Court failed to apply the correct legal standard for determining whether counsel provided deficient performance at the penalty phase. Specifically, Andrews argues that the California Supreme Court failed to follow Tennard v. Dretke and Smith v. Texas, which hold that evidence can be mitigating even if it is not “uniquely severe” or does not have a "nexus” to the crime. 542 U.S, 274, 287,
. Andrews’s claim that the state court failed to consider his experiences at Mt. Meigs, is not supported by the record. The state court detailed Andrews's experiences at Mt. Meigs when discussing mitigating evidence that could have been presented, noting that “[a]t Mt. Meigs, [Andrews] encountered appalling conditions” and detailing the referee's findings that Andrews “was subjected to beatings, brutality, inadequate conditions and sexual predators,” that “[h]is passiveness and small physique caused him to be a target of older, tougher boys, from whom no protection or separation was provided,” and that “Mt. Meigs failed to provide any meaningful rehabilitative or educational opportunities.” In re Andrews,
. Andrews argues that the state court made an unreasonable determination of the facts, see § 2254(d)(2), in holding that the prison conditions evidence could be aggravating. We reject this argument, because the state court’s conclusion is a reasonable application of the prejudice standard elaborated by Strickland and, its .progeny, not a factual finding. Cf. Pinholster,
. Andrews argues that the state court's conclusion that the evidence gave rise to ■ the ' inference of future dangerousness was an unreasonable determination of the facts. He argues that the prison stabbings, laundry robbery, and conditioning to violence during his prison ■ experiences do not support such an inference, pointing to mitigating facts found ''by the referee, including that in some incidents, Andrews was defending himself against inmates who had been threatening him. We disagree. The state court considered these mitigating facts (such as evidence that in prison Andrews was "the prey rather than the predator” and acted in self defense), see In re Andrews,
. Andrews argues that the state court unreasonably applied Eddings,
. While Andrews cites other Supreme Court and Ninth Circuit cases, his argument focuses primarily on Williams and Porter. Because other cases cited by Andrews áre non-binding, not factually analogous, or both, we do not address them here.
. The dissent relies on Justice Rehnquist’s ■ concurring and dissenting opinion in Williams, which described additional aggra
. Andrews points to evidence that he appeared to adjust well to the Alabama prison system when conditions permitted, but this observation is weaker than the evidence in Williams. See
. The dissent fails to engage with these distinctions and the evidence at issue. Instead, the dissent conducts a de novo review, and concludes that the aggravating evidence admitted at trial and the evidence that could have been offered in rebuttal against Andrews was "no greater than the aggravating evidence in Williams." Dissent at 1057. The dissent misunderstands our role. We must determine whether the California Supreme Court’s application of Williams was objectively unreasonable under 28 U.S.C. § 2254(d)(1), not whether we would have reached a different result under de novo review. "In order for a state court’s decision to be an unreasonable application of [the Supreme] Court’s case law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, — U.S. —, —,
. The dissent claims that the prosecutor presented "a strong case in aggravation” in Porter, and therefore the conclusion in Porter must apply in this case. Dissent at 1058. But unlike the case before' us, Porter held that the sentencing judge had misjudged the weight of the aggravating evidence, and "the weight of evidence in aggravation is not as substantial as the sentencing judge thought.” Porter,
. Andrews also urges us to apply our decision in Doe v. Ayers,
.Although Visciotti was • decided after the California Supreme Court’s decision in this case, we give it careful consideration because it addresses the AEDPA question whether a state court’s adjudication- of an ineffective assistance of counsel claim was an unreasonable application of Strickland. See supra at 1019-20; see also Dissent at 1057-58 & n.9 (acknowledging that Supreme Court opinions analyzing AEDPA are relevant to a circuit court's AEDPA analysis, regardless whether those opinions were decided before or after the last reasoned opinion of the state court). The dissent highlights that Visciotti was "decided after the California Supreme Court's decision in this case,” Dissent at 1059, but given the dissent’s acknowledgment that our consideration of a Supreme Court opinion analyzing AEDPA is proper, the meaning of this emphasis is unclear.
. The fact that our decision in this case was originally unanimous, see Andrews v. Davis,
. The dissent’s reliance on Wiggins and Rompilla to support its Strickland analysis, see Dissent at 1055-56, 1058, is mistaken, because these cases were decided after the California Supreme Court ruled. While we may always consider the Supreme Court’s reasoning in applying AEDPA, both Wiggins and Rompilla examined the prejudice prong of Strickland de novo. Wiggins,
. We also need not consider the additional aggravating evidence put forth by the state, which Andrews disputes, and therefore deny the state's motion for judicial notice of these additional materials.
. After losing its appeal, CDCR promulgated a nеw procedure, which took effect on August 29, 2010. Sims,
. In light of this holding, we need not reach Ahdrews’s claims that the district court erred in denying him an evidentiary hearing on Claim 25 or in declining to stay this claim to allow him to rely on evidence presented in Morales.
. Section 2253(c) states:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
.Jennings was nonetheless careful to note that a petitioner defending his judgment on appeal would be "confined to those alternative grounds present in the record-, he may not simply argue any alternative basis, regardless . of its origin.” Jennings,
. While the Supreme Court has not ruled on the question whether a freestanding claim of factual innocence is’ cognizable in habeas, it has suggested that success on such a claim (if cognizable) would entitle a petitioner to a new guilt phase trial. Herrera v. Collins,
. The Los Angeles Police Department Homicide Manual states in pertinent part:
Note: (A) Photographing Prints
Prints found at the scene of a homicide should be photographed. The procedure is recommended because it is much easier to introduce print evidence into ■ court if the print has been photographed, as parts of the object which carried the print may show in the picture.
. He did not seek an evidentiary hearing on Claim 26, which raised the argument that it would violate the Eighth Amendment to execute him after a long delay.
Dissenting Opinion
dissenting in part:
I respectfully dissent. I would affirm the district court’s order granting Andrews relief due to ineffective assistance of counsel at the penalty phase of his trial. ,
. Andrews was convicted of three heinous ■and appalling murders. His prior crimes were violent and antisocial. But due to defense counsel’s constitutionally inadequate penalty phase investigation, the jurors who sentenced Andrews to death never knew that he was subjected for two years as a young teenager to brutal, inhumane, and degrading abuse by his state custodians at Mt. Meigs, a segregated reform school for “Negro children” in Alabama. Had counsel presented this readily available mitigating evidence, there is a reasonable probability that at least one juror would have been moved to exercise mercy and spare Andrews’s life. Yet the California Supreme Court denied relief in a 5-to-2 deсision, concluding that counsel’s performance was neither deficient nor prejudicial. See In re Andrews,
. Fundamentally, it is unconscionable to sentence, a man to death absent consideration of mitigating evidence of this magnitude, particularly where counsel failed to present any meaningful mitigation evidence. Our “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland v. Washington,
I.
Andrews was sent to the Alabama Industrial School for Negro Children, later known as Mt. Meigs, in the mid-1960s, after stealing a car. He had no prior history of violent crime. He entered the school when he was 14. He left when he was 16.
The California judge who conducted the state court evidentiary hearing described Mt. Meigs as a “segregated brutal institution near Montgomery, Alabama;” The state court hearing judge found that' the conditions at Mt. Meigs were horrific, and that Andrews was personally subjected to “béatings, brutality, inadequate conditions and sexual predators.” Due to “his small stature and passive nature,” Andrews was “the target for older boys’ depredations.” The California Supreme Court itself acknowledged that Andrews persorially endured “appalling” conditions at’Mt. Meigs. See Andrews,
At the state court evidentiary hearing ordered by the California Supreme Court, several outside observers corroborated the
Despite being termed a “school,” Mt. Meigs provided little to no education, counseling, or vocational programs to the children in its custody. See Andrews,
Andrews was not spared. The state court record chronicles in excruciatingly vivid detail the abuse he personally suffered. When Andrews- failed to pick enough cotton, left the grass too high- in the fields, or made a mistake in the dining hall, he was whipped with a fan belt or beaten with a stick. The record indicates that Andrews was beaten so severely the skin on his thighs would “bust open.” On other occasions Andrews and other wards at Mt. Meigs were forced to pull down their pants, lie on the ground on their stomachs, and place their penises in holes in the earth while they were, whipped. The judge who conducted the state court evi-dentiary hearing found the evidence of abuse “compelling.”
The jury that, .sentenced Andrews to. death heard none of this evidence. Yet the California Supreme Court concluded that counsel was not ineffective and, even if, ineffective, there was no reasonable probability of a, different result at sentencing had the jury heard the Mt. Meigs evidence.
That decision is fundamentally and objectively unreasonable. Consideration of a defendant’s life history is a “constitutionally indispensable part of the process , of inflicting the penalty of death.” See Eddings v. Oklahoma,
I recognize that our deference to state court decisions is at'its zenith on federal habeas review. See generally Richter,
II
Regarding Strickland’s first prong, the California Supreme Court unreasonably applied clearly established federal law in concluding that counsel’s performance at the penalty phase was adequate.
“[Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”Strickland,
Andrews’s trial counsel conducted “virtually no penalty phase investigation” and “did not call a single witness at the penalty phase.” Andrews,
A
The California Supreme Court, however, excused counsel’s failure to discover the Mt. Meigs evidence for a number of unsupported and unsupportable reasons, con-, eluding that counsel’s investigation' was constitutionally adequate because: (1) Andrews did not want his family involved; (2) Andrews did not tell counsel about the appalling conditions he endured while confined at Mt. Meigs; (3) the Mt. Meigs evidence could have backfired, for the evidence would have comé primarily from prisoners; (4) counsel’s limited investigation was reasonable because counsel had a reasonable strategy at the penalty phase; and (5) the Mt. Meigs evidence could have opened the door to more evidence regarding Andrews’s prior acts of violence. Not one of these rationales withstands scrutiny or excuses counsel’s failure to perform a basic investigation into his client’s life history.
(1) Andrews’s Refusal to Involve his Family.
The California Supreme Court found counsel’s limited investigation adequate partly because Andrews refused" to involve his family at the penalty phase. See Andrews, 12
The California Supreme Court is correct that Andrews did not want his family involved. And it is also correct that the “reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” See Strickland,
It was therefore unreasonable-for the California Supreme Court to excuse counsel’s failure to present the Mt. Meigs evidence based upon Andrews’s refusal to involve his family. See 28 U.S.C. § 2254(d)(2) (stating that federal habeas relief is warranted if the state court decision was based upon an unreasonable determination of facts in light of the evidence presented in the state court proceeding); cf. Porter,
(2) Andrews’s Failure to Tell. Counsel About His Time at Mt. Meigs.
The California Supreme Court also faulted Andrews for not telling trial counsel about the appalling conditions he endured while at Mt. Meigs. See Andrews,
Given those facts, the California Supreme Court was unreasonable in placing the burden on Andrews to comprehend and offer mitigatiоn theories at the penalty phase of his own trial. Under clearly established Supreme Court law, legal strategy is the duty and domain of learned counsel; while a defendant “has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal,” legal strategy decisions are matters of professional judgment that fall within counsel’s domain and are the responsibility of counsel. See Jones v. Barnes,
(3) The Reliance on Prisoners . to Present the Mt. Meigs Evidence
The California Supreme Court further concluded it was reasonable for counsel not to present the Mt. Meigs evidence because such evidence could have backfired as it “would come primarily from the testimony of petitioner’s fellow prisoners, many of whom were hardened criminals with serious felony records.” See Andrews,
However, the' Mt. Meigs evidence was not dependent upon testimony from prisoners. At Andrews’s state court evidentia-ry hearing, “a federal district judge, a priest, a college dean, a clinical psychologist, a longtime prison doctor, and the regional director of the Federal Bureau, of Detention, all ... gave powerfully effective testimony about the shocking conditions at” Mt. Meigs. Andrews,
In light of the state court record, it therefore was unreasonable for the California Supreme Court to excuse counsel’s failure to present the Mt. Meigs evidence on the basis that such evidence would have primarily depended upon the testimony of prisoners. See 28 U.S.C. § 2254(d)(2); see also Wiggins,
(4) Counsel’s Penalty Strategy
The California Supreme Court expressly acknowledged that the record at the state court evidentiary hearing suggested that counsel could have, conducted a more thorough investigation into Andrews’s background. See Andrews,
The- California Supreme Court’s decision is unreasonable because neither strategy was supported by the evidence presented at trial. Further, the state court’s decision is- unreasonable because it ignores counsel’s “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unneces
The evidence as to the crimes of conviction which rendered Andrews death eligible belied the depiction of Andrews as a follower, rendering counsel’s penalty phase pitch to 'the jury contrary to the record, hollow, and false. See Andrews,
Given the evidence at trial, no reasonable argument can be made that counsel’s strategy to depict Andrews as a follower was reasonable, particularly when it was unsupported by a basic investigation into Andrews’s background to determine what other mitigating evidence was' available. See Bobby v. Van Hook,
The California Supreme Court cited Burger v. Kemp,
Second and relatedly, in Burger, counsel’s depiction of his client as a follower was a reasonable strategy for it was supported by the record. See Burger,
The California Supreme Court also unreasonably applied Supreme Court law when it cited Bell v. Cone,
(5) Opening the Door to Andrews’s Prior Acts of Violence.
Finally, the California Supreme Court concluded counsel’s failure to present the Mt. Meigs evidence, among other mitigation evidence, was reasonable because such evidence could have opened the door to more evidence regarding Andrews’s prior acts of violence. See Andrews,
One, the prosecutor from Andrews’s trial, who in the interim,; had become a superior court judge, “testified that if the defense had presented evidence of the Alabama prison conditions he probably would not have called rebuttal witnesses to give details about petitioner’s Alabama crimes.” See Andrews,
Two, even if the prosecutor had rebutted with more evidence regarding Andrews’s prior violent crimes,
" The clearly established law of Strickland itself supports the conclusion that the California‘Supreme Court’s decision was unreasonable. In Strickland, it was reasonable for counsel not to present mitigating evidence that “would barely have altered the sentencing profile” and could have opened the door to prior convictions which counsel had successfully moved to exclude.
In contrast, in cases where a defendant’s prior criminal history is known to the jury, counsel performs unreasonably in not presenting a range of persuasive mitigating evidence about the defendant’s background that “no other source had opened up.” See Rompilla v. Beard,
B
In sum, there was no conceivable tactical reason either to forego the investigation into Andrews’s background or to forego the presentation of the compelling Mt. Meigs evidence. Any competent attorney would have concluded that the Mt. Meigs evidence was the only evidence in this case that carried a substantial probability of a different sentence. That evidence is critical precisely because it provides the jury with a' reason to extend mercy despite Andrews’s heinous crimes. As such, any competent attorney would have presented the evidence, argued that the abuse Andrews suffered as a youth at the hands of his state custodians explains why he is inured to violence, and urged thе jurors to spare Andrews’s life on that ground.
The duty to conduct a thorough investigation of a capital defendant’s background is imposed on counsel to prevent this very circumstance: a man sentenced to death without consideration of non-cumulative, readily available personal history evidence of compelling mitigating value. The California Supreme Court unreasonably applied clearly established federal law when it concluded that defense counsel’s performance was constitutionally adequate in this case.
Ill
Under Strickland’s second prong, the California Supreme Court majority concluded that even if Andrews’s counsel performed inadequately, Andrews suffered no prejudice from the omission of the Mt. Meigs evidence at sentencing. That conclusion too is based upon an objectively unreasonable application of Strickland and its progeny.
Under Strickland, a capital defendant suffers prejudice .from counsel’s deficient performance when “there is a reasonable probability that, absent the errors [of counsel], the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland,
In this case, the California Supreme Court concluded there was no reasonable probability of a life sentence even if counsel had presented the mitigating evidence regarding Andrews’s background. Unlike the majority, I would hold that such a conclusion constitutes an unreasonable application of federal law that was clearly established at the time of the state court’s decision. . ,
A
Consideration of the defendant’s life history is a “constitutionally indispensable part of the process of inflicting the penalty of death.” Eddings,
Without.consideration of the compelling and readily available Mt. Meigs evidence, Andrews’s moral culpability could not be fairly gauged at sentencing. See Porter,
The majority disagrees and observes that the Supreme Court “has found a reasonable probability of a different outcome when scant and weak aggravating evidence could have been presented in rebuttal to strongly mitigating evidence.” Majority at 1023 (citing Wiggins, 539 U.S, at 534-36, 537-38,
As the majority recognizes, Williams and’ Porter are particularly instructive. In
Despite these strong aggravating factors, the Supreme Court held that Williams was prejudiced by his counsel’s failure to introduce the undiscovered mitigation evidence. Importantly for this case, the Court stated that the evidence regarding Williams’s “nightmarish childhood” would have been enough, standing alone, to sustain a finding of prejudice. As the Court expressly held, “the graphic description of Williams’ childhood, filled with abuse and privation, or the reality that he was ‘borderline-mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” See id. at 398,
Williams plainly supports the conclusion that' the California Supreme Court unreasonably applied clearly established federal law in concluding that Andrews was not prejudiced by his counsel’s failure to introduce evidence of the extreme brutality that Andrews suffered as a youth. The total evidence in aggravation, that- which was admitted and that which may have come in as rebuttal evidence concerning Andrews’s prior, violent crimes (which the prosecutor testified at the state court- hearing he probably would not have introduced), was certainly no greater than the aggravating evidence in Williams. Similar to Williams, the overlooked mitigating evidence in Andrews’s case includes severe and sustained physical, sexual, and psychological abuse. Andrews’s overlooked mitigating evidence is made even stronger by the fact that the abuse at issue was inflicted in large part at the hands of his state custodians and was broadly corroborated by respected authorities, as previously accounted.
In Porter, due to counsel’s failure to adequately investigate Porter’s background, the 'jury that sentenced him to death never knew that he had been abused as a child and was a decorated Korean War veteran suffering from post-traumatic stress. See Porter,
As in Williams, the Supreme Court in Porter affirmed that a strong case in aggravation does not preclude the conclusion that a state court was unreasonable in
The majority disagrees. Relying on the Supreme Court’s opinion in Woodford v. Visciotti,
B
The California Supreme Court álso reasoned that Andrews was not prejudiced because the Mt. Meigs evidence, in addition'to evidence of abuse Andrews suffered as an adult in the Alabama prison system, is “not conclusively ,and unambiguously mitigating” but “could equally have proved a double-edged sword.” See Andrews,
The jury already knew from Andrews’s heinous,crimes of conviction and from the stipulated prior convictions that Andrews was - antisocial and “had become desensitized and inured to.violenee and disrespect for the law.” No person considering Andrews’s crimes of, conviction would conclude otherwise. But the jurors knew absolutely nothing about Andrews’s past that might explain the person he had become and provide a basis for the exercise of mercy. ,
The severe and sustained abuse that Andrews suffered at Mt. Meigs provides
The prejudice to Andrews caused by the omission of the Mt.' Meigs evidence at sentencing is compounded by the fact , that counsel presented no sympathetic mitigating evidence at Andrews’s sentencing. Indeed, at the penalty phase of Andrews’s trial, counsel called no witnesses and' offered no statements from psychologists, family, or friends. In short, defense counsel presented almost nothing to counter the prosecution’s portrayal of their client. The clearly established law of Strickland recognizes that some errors by counsel will have “pervasive effect ,.. altering the entire evidentiary picture.” See Strickland,
It is unconscionable that Andrews should be sentenced to death without consideration of the egregious abuse that he suffered'at Mt. Meigs. Had counsel presented the Mt. Meigs evidence at sentencing, it is reasonably probable that at least one juror would have been moved to exercise mercy and spare Andrews’s life. It is objectively unreasonable, and; a legal fiction, to conclude otherwise.
IV
The district court’s conditional grant of sentencing relief should be affirmed. I respectfully dissent;
. The majority cites trips that Andrews's counsel made to Alabama and Florida as evidence that they conducted something other than a cursory penalty phase investigation. Majority at 1012 n.3. Yet by the lawyers’ own account, their penalty phase investigation consisted of just three activities. First, the lawyers spent a day in the Mobile courthouse pulling records of Andrews’s prior convictions. One of the lawyers initially testified that their trip to Alabama included three days of investigation, He changed that account after being confronted with evidence that they were in New Orleans for most of the time, flying to Mobile on a Saturday and returning to New Orleans on the same day. New Orleans had no relation to the case; the dates of the trip “coincided” with Mardi Gras celebrations! Second, only after Andrews's first, trial ended in a hung jury, the lawyers interviewed Andrews’s mother during a layover in the Pensacola' aiiport, after they briefly revisited the Mobile courthouse to examine records of Andrews's prior convictions. The interview did not go into detail about Andrews's background, and the lawyers did not inquire about the names or contact information of relatives or anybody else who knew Andrews and could speak to his history. Third, the lawyers asserted that they spent some time in Mobile during one of their two trips unsuccessfully "looking] for evidence of Jesse's character and good deeds.” The lawyers, however, did not interview a single person, contact any of
. The majority generally and repeatedly accuses the dissent of engaging in a de novo review when evaluating whether the California Supreme Court's determinations were reasonable. Yet deference does not eviscerate our duty to examine and’ evaluate the record to determine the reasonableness of the state court’s conclusions. Further, in engaging in that inquiry, it is entirely proper to look to a state court dissenting opinion that may shed light on whether the state court majority's determinations were reasonable or unreasonable in light of the record as a whole. Facts on federal habeas review are not limited to only the facts stated in the state supreme court’s' majority opinion. Cf. 28 U.S.C. § 2254(d)(2) (stating that federal habeas relief is warranted if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented").
. The California Supreme Court's opinion often conflates the evidence of abuse that Andrews suffered as a youth at Mt. Meigs with other potential mitigating evidence he could have introduced regarding the abuse he sustained as an adult in the Alabama prison system. Because counsel’s failure to investigate and introduce the Mt. Meigs evidence, standing alone, plainly rendered counsel’s performance deficient, I only address the Mt. Meigs evidence. However,- the dissent in the California Supreme Court provides an accurate and thorough accounting of the' additional mitigating evidence that counsel could have introduced. See Andreevs,
. It is also possible, if not likely, that a Califоrnia court would not have admitted evidence of prior offenses to rebut the mitigating evidence of childhood abuse that Andrews suffered at Mt. Meigs. Cf. In re Lucas,
. The majority accurately observes .that the referee and tire California Supreme Court ma- ' jority concluded that if trial counsel had presented the Mt. Meigs evidence, the prosecutor would have introduced rebuttal evidence. Majority at 1014-15 n,8, But that finding fails to take into account the plain statement by the former prosecutor—later a state court judge— that he probably would not have responded .with rebuttal evidence. The referee and California Supreme Court decided not to take the former prosecutor at his word and instead
. ■ By stipulation, the jury knew that Andrews's 1967 murder conviction was for felony mur- • der stemming from an incident when Andrews, then 16, and an accomplice robbed a grocery store and the accomplice (not Andrews) shot and killed a store clerk during the robbery.
. The California' Supreme Court suggested there was “rio compelling connection” between the un-presented mitigating evidence and the crimes Andrews committed. Andrews,
. The Supreme Court later stated that Williams offers "no guidance with respect to whether a state court has unreasonably determined that prejudice is lacking” because AEDPA deference was not applied to the Strickland, prejudice question in Williams. See Cullen v. Pinholster,
. The majority acknowledges that Porter is relevant to determining whether the California Supreme Court unreasonably applied Strickland. Majority at 1029 ("Although Porter was decided years after the California Supreme Court's opinion in this case, we give its prejudice analysis careful consideration, because Porter considered prejudice under AED-PA, and therefore provides direction for determining what constitutes an unreasonable application of the prejudice prong of Strickland under AEDPA.”).
. The majority criticizes my reference to Rompilla, insisting Rompilla "do[es] not provide any guidance on the issue before us, whether a state court's determination that counsel's deficiency was not prejudicial was an unreasonable application of clearly established Supreme Court precedent.” Majority at 1032-33 n.24. But I cite Rompilla for the well-established principle that the Strickland test for prejudice does not turn on whether the jury still could have returned a death sentence even if it had heard the mitigating evidence. See Strickland,