F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J E S S E J A M E S A

N D R E W S , Petitioner-Appellant

,

v

.

R O N D A V I S , Acting W arden, Respondent-Appellee

. No. 09-99012

D.C. No. 2:02-CV-08969-R

J E S S E J A M E S A

N D R E W S , Petitioner-Appellee

,

v

.

R O N D A V I S , Acting W arden, Respondent-Appellant

. No. 09-99013

D.C. No. 2:02-CV-08969-R

OPI NI ON

A ppeal from the United States District Court for the Central District of California Manuel L . Real, District J u dg e, Presiding

Arg ued and Submitted J anuary 12, 2015—Pasadena, California

F iled Aug ust 5, 2015A N D R E W S V

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B efore: Sandra S. I kuta, N. Randy

Smith, and Mary H. Murg u ia, Circuit J udg es.

Opinion by J udg e I k

uta

SUMMARY *

Habeas Corpus/Death P e nalty

The panel dismissed as unripe the sole claim certified b y the district court for appeal, d enied a motion to ex pand the certificate of app e a l ab ility

, and reversed the district court’s
g rant of r elief on an ineffective assistance of counsel claim in

a case i n w hich J esse J ames Andrews challeng es his conviction and capital sentence for three murders.

T h e panel reversed the district court’s g rant of relie f o n Andrews ’ s c l aim that he was prejudiced by his counsel’s fail u r e to investig ate and present additional mitig ating evidence at the penalty phase o f his trial, because

, under 28 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably a p p l y Supreme Court p recedent in concluding that And r ew s was not prejudiced by any deficient performance.

B ec a u se California has no lethal injection protocol currently in place, the pan e l dismissed as unripe Andrews’s certified claim that California’s use of its lethal injection

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A N D R E W S V

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protocol to ex ecute him would violate his Eig hth A mendment rig hts.

The panel denied Andrews’s request to certify for appeal h i s uncertified claims of unconstitutional delay betw e e n sentencing and ex ecution, ineffective assistance of c o u n sel, failure to disclose material ex culpatory evide n ce and false testimony , and destruction of evidence.

The panel he l d that the district court did not a buse its discretion in deny ing Andrews’s motion for an evidentiary hearing

.

COUNSEL

Michael B urt (arg

ued), L a w Office of Michael B urt, San Fr a n c i s c o , C a l i f

o r n i a , fo r P e t itioner-Appellant / C r o s s

Appellee.

Xiomara Costel lo (arg

ued), Supervising Deputy Attorney General, Kamala D. Harris, A ttorney General o f California, Dane R. Gillette, Chief Assistant Attorney General, L ance E. W inters, Senior Assistant Attorney G eneral, Keith H. B orjon, Supervising Deputy Attorney General, A. Sc o t t H ay ward, Deputy A ttorney General, Sarah J

. F arhat, Deputy Attorney General, Shira Seig le Markovich, Deputy Attorney General, Edward C. D u Mont, Solicitor General, Gerald A. Eng ler, Chief Assistant Attorney Ge neral, Michael J

. Mong an, Deputy Solicitor Genera l

, J ames W illiam B ilderback I I
, Supervising Deputy Attorney General, L os Ang eles, California, for Respondent-Appellee/Cross-Appellant.A N D R E W S V

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OP INION

I KUTA, Circuit J udg e:

J esse J ames Andrews appeals from t h e district court’s denial o f a ll but o n e of the claims raised in his petition f or a wri t of h abeas corpus under 28 U .S.C. § 2254. The state cross-appeals the district court’s g rant of relief on Andrews’s claim that his counsel’s a ssistance was ineffective at the penalty p hase of his c apital m u r d e r t rial. W e dismiss a s unripe the c laim the district court c ertified for a p p eal, a nd deny Andrews’s motion to ex pand t h e certificate o f appealability to i n c lude uncertified claims. W e reverse its
g rant of rel i e f o n the ineffective assistance claim because, under 2 8 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably apply S u p r eme Court precedent in concluding that Andrews was n ot p rejudiced by any deficient performance by

his counsel.

I

A

On December 9, 1979, p o l i c e were called to a L os Ang eles apartment , w here they f ound the bodies of three murder victims. People v

. Andrews

, 776 P.2d 285, 2 88 (Cal. 1989). T he murder victims were Preston W heeler, who lived in the apartment, Patrice B randon, and Ronald C h i s m

. Id

. The California Supreme Court described the murder scene a s follows:

W h eeler had been stabbed i n the chest six times and shot in the neck at close rang e with either a .32– or .357– ca l i ber w eapon. HisA N D R E W S V

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face and head were br u i s e d, and his face h ad been slashed with a knife. B rand on a nd Chism had been strang led with w i re coat hang ers. The i r faces were b ruised, Chism’s

ex t e nsively

. B randon’s anus was ex tremely dilated, bruised, reddened a nd torn, consistent with the insertion of a penis shortly before her death. There was also red n e s s around the

o p e n ing of her vag ina, a nd vag inal samples

re v e a l e d t h e presence of semen a nd spermatoz oa. All thr ee victims were bound hand and foot.

Id

. Approx imately a y ear later, police a r rested Charles Sanders in connection with the murders. Id

. Sanders entered into a plea ag reement, in which he plead e d g uilty to three
counts of second d eg ree murder, admitted a g un enhancement, and ag r eed to cooperate w i t h the prosecution, in ex chang e for a sentence o f 17 y e ars to lif e i n prison. Id

. During his interrog ation by the p o l ice, Sanders g a ve both a tape-recorded and a written s t a t e ment. Id

. He also testified at Andrews’s trial, and described the crime as follows:

Sanders testified that he and [ Andre w s] devised a plan to rob Wheeler, a drug dealer. [ A n drews] a

rmed himself with a .357

m ag num a

nd g a ve Sanders a .38–or .32–caliber automatic. On the evening of the murder s , they visited their friend, Carol B r ooks, who l i v e d in the same apartment building as W heel er, and then w ent to W h eeler’s apartment. I n response to theirA N D R E W S V

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knocking

, W heeler, who apparently k n e w [ Andrews]

, let them in. Also insi d e the apartment was a w oman (Patr i ce B randon). After smoking some marijuana w ith W heeler, [ A ndrews] and Sanders drew their g uns. Sanders tied Wheeler and B r andon with belts and socks, put o n a pair of g loves, a nd beg an to search the apartment for drug s and money

. Ex cept for some powder on a saucer wh i ch
appear ed to be cocaine, the search was

u n s uccessful. [ A ndrews] qu e s t i o n e d Wh e e l e r , who den i e d having any drug s or money

. Say ing h e would make B r andon talk, [ Andrews] drag g ed her into the kitchen a nd closed the d o o r

. Sanders remained in the living room with W heeler.

Sanders h eard [ Andrews] hitting B randon a nd later heard sounds a s thoug h they were h aving

sex

. W hen [ Andrews] c ame out of the kitchen shor tly thereafter, Sanders saw B randon’s pants around her ankles.

[ Andrews ] p u t his g un in W heeler’s mouth. He threatened t o k ill W heeler and B randon unless W h eeler revealed the location of the drug s. W heel e r s a id the ‘dope’ was in the attic, a nd pointed out a trap door leading up to i t

. Sanders climbed into the attic. W hile i n the attic, S a n d e r s heard two shots. W hen he

came d o w n, [ Andrews] told him he had shot W h eeler because the la t t e r h ad tried to jump
out the window. Sanders asked i f W heeler

was dead. [ Andrews] r e sponded he wasA N D R E W S V

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‘standing rig ht up’ on W heeler when he fired the g un

. . . . W hen Sanders ask e d about B r andon, [ Andrews] r eplied he had killed her before leaving

the kitchen.

W h ile [ Andrews] a

nd Sanders w e re cleaning
up the apartment, Ronald Chism kno c k ed on the door and asked if every thing was all rig ht. [ Andrews] said W heeler was home a nd invited him inside. [Andrews] then hit Chism

o n the head, tied him up, and took him into the b athroom. Sanders saw [Andrews] sitting astride Chism’s back, joining and sep arating his c lenc h ed f

ists in a tug g ing motion, apparently strang li n g Chism. Sanders then

saw [ Andrews] g o into the kitchen and choke B r andon with a wire clothes hang er. W h en the two left the a

p artment, [ Andrews] g ave Sanders some money , say ing it was a ll he h ad found.

In re Andrews

, 52 P.3d 656, 658 (Cal. 200 2 ) ( a l terations, citations, and internal q

uotation m a r ks omitted). Andrews was eventually

arrested, and he was charg ed in J une 1982.

At trial, the jury heard Sanders’s testimony as well as the testimony of Carol B rooks. B rooks confirmed that Andrews

an d Sanders visited her o n the nig ht of the murders and told her about t heir plan to “ g et some money ” from W heeler. P e o ple v

. A ndrews

, 776 P.2d at 289. A week aft e r t h e incident, Sanders told her about his involvemen t i n t he murders. Id

. T hen, a few w eeks later, Andrews confessed to her that he shot W heeler, h ad sex with B randon, and took $300 during the robbery

. I d

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The prosecution also presented fing erprint evidence. Id

. Police ex p er t s analy

z ed 5 0 prints lifted from the apartment; three prints belong ed to Andrews. Id

. One fing erprint was found on a coffee table in W h e e l e r ’ s living room. I d

. Two palm p rints were found on the kitchen floor, on either side o f the spot where B randon’s body was found, the left palm print being about a foot from her body

.

The defense primarily focused on undermining Sanders’s credibility

. I

d

. Two jail inmates who had been incarcerated with Sanders testified. Id

. They stated that, wh i le Sanders

was incarcerated with them, he m ade statements sug g esting he planned t o lie about the murders to shift blame onto Andrews and away

from himself. Id

.

The jury deliberated for three day s before finding Andrews g uilty of murder. 1 The jury also found three special circumstances to be true. Two special circumstances r elated
to the o ffense conduct: (1) multiple murde r a n d robbery murder, ba sed on the murders of W heeler, B randon, a nd Chism, a n d t h e robbery of W h eeler, and 2) rape-murder, based on the r ape and murder of B randon. In re A n d rews , 52 P.3d a t 659. The thi r d special circumstance was Andrews’s conviction f

or mu rder of a g rocery store clerk in 1967. Id.

B o th th e p r o secutor and defense counsel made brief presentations at the penalty phase. The prosecutor presented evidence throug h a joint stipulation. Id

. H e noted that the jury had already found that Andrews had been conv icted o f murder in 1967. The parties also stipulated that Andrews h ad

1 A n d rew s w as co n v icted af t er h is seco n d trial, b ecau se th e j u ry f ailed
to reach a v erd ict in th e f irst trial.A N D R E W S V

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been convicted of armed r o bbery in May 19 6 8
, that he h ad been convicted of escape in November 1969, and that he h ad been convicted of robbery in J une 1977. Id

. The stipulation did not describe the facts o f t h e offenses u nderly ing these additional convictions. Th e prosecution also submitted photog raphs of the dead bodies of Patrice Br a n d o n a nd Ronald Chism as they were found by t h e p o l ice in the apartment; the photos had been e x cluded at the g uilt p hase on the g round they were unduly inflammatory

. Id

. F inally

, the parties stipulated that Andrews’s birth date was J uly 2, 1950. Id

.

The defense evidence c onsisted of two sworn statements that w ere read to the jury

. Id

. The statements described facts underly ing the incident in Septemb e r 1 9 66 that formed the basis of Andrews’s 1967 conviction f o r m u rder. A ccording
to the statements, Andrews and a 17-y ear-old companion, both of whom were a

rmed, a ttempted to rob a g rocery store, and the companion fired three shots, killing the g rocery store clerk. Id

.

I n his clos ing arg ument, defense counsel focused on mitig ating circumstances. He arg ued that Andrews’s crimes

were u nsophisticated, occur r e d several y ears apart, and all involved the unex p ected e scalation of a planned r obbery

. Id

. He p o inted o ut that Andrews was o nly 15 y ears old at the time of the murder o f the g rocery store clerk, and was n ot the shooter. Id

. He portray ed An drews’s conduct as less blameworthy because the murders occur red while Andrews, Sanders, Wheeler, and B randon were under the infl u en c e o f illeg a l d r u gs

. Id. at 659–60. F inally

, he emphasiz ed that other murderers had received life without t h e possibility o f parole despite the jury ’s finding of special circumstances, a nd despite more blameworthy c o n d uct. I d. at 659. He pointedA N D R E W S V

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out that in this very case, Sanders r eceived a sentence of only 17 y ears to life. Id. at 6 60. The prosecution made no rebuttal.

After one day of deliberations, the jury returned a verdict imposing the death penalty for e a c h of the three murder
counts. The court sentenced Andrews to death on th e t h r ee counts o n J u n e 8, 1 984. The California Supreme Court affirmed t h e conviction and sentence on direct appeal on Aug ust 3, 1989. People v. Andrews , 776 P.2d at 285, 288.

B

Andrews filed petitions f or state post-conviction relief, claiming

, among other thing s, that his c ounsel’s assistance

was ineffective at the penalty phase because counsel did not adequately investig ate and present mitig ating evidence. The California Supreme Court summarily denied a ll of Andrews’s claims, ex cept for his penalty phase ineffective assistance o f counsel claim.

The California Supreme Court appointed a referee to take evidence and make factual find i n gs on six questions r elated
to A ndrews’s penalty phase ineffective assistance o f counsel claim. In re Andrews

, 52 P.3d at 6 5 9

. Two o f the six questions are relevant to the question of whe t h e r Andrews

was p rejudiced by hi s counsel’s alleg edly ineffective assistance : “1. W hat mitig ating character and backg r ound

e v i dence c ould have been, but was not, presented by [ Andrews] ’s trial attorney s a t h is penalty trial? ” id. at 660, and “5. W hat evidence, damag ing to [ Andrews]

, but not presented by the prosecution at the g uilt o r p e nalty trials, would likely have been p r e s e n t ed in r ebuttal, if [ Andrews] had introduced any such mitig ating character and backg r oundA N D R E W S V

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evidence? ” id. at 664. 2 The referee r eceived the testimony o f

over 5 0 witnesses, which took place o ver the span of six
y ears, id. at 660, and issued a leng thy writ ten report of her finding s.

The California Supreme Court denied Andrews’s penalty phase ineffective assistance of counsel claim in a leng thy opinion. Id. at 656–76. I n its opinion, the court summariz ed the referee’s f

inding s. I n response to the first question

, the referee identified three broad categ ories of mitig ating evidenc e t hat were available b ut not presented to the jury : Andrews’s family backg round; the c o n ditions of his confinement in a juvenile reform school and in the Alabama prison sy ste m ; a n d his mental h ealth. Id. at 660. A s summariz e d in the cour t ’ s o pinion, the referee’s report included the f

ollowing inf

o rmation reg arding Andrews’s

2 T h e o th er f

o u r q u estio n s w ere:

2

. W h at in v est i g ativ e step s b y trial co u n sel, if an y , w o u l d h av e led to each su ch item o f in f o rm atio n ?

3

. W h at in v estig ativ e step s, if an y , did trial co u n sel tak e in an ef f o rt to g ath er m itig atin g ev id en ce to b e p resen t ed at th e p en alty

p h ase?

4

. W h at t actical o r f

in an cial co n strain t s, if an y , w eig h ed
ag ain st th e i nv e s tig atio n o r p resen tatio n o f m itig atin g ch aracter a n d back g ro u n d ev id en ce at th e p en alty
p h ase?

. . .

6

. D id [A n d rew s] h im s elf req u est th at eith er t h e in v estig atio n o r th e p resen tatio n o f m itig atin g ev id en ce at th e p en alty p h ase b e cu rtailed in an y m an n er? If so , w h at sp ecif ically d id [A n d rew s] req u est?

In re An d rews , 5 2 P .3 d at 6 59

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backg round. W hen he was very y o ung , Andrews’s alcoholic parents separated, and his mother left him to be raised by his
g randparents a

nd a u nt, in a larg e family home w ith his sibling s and cousins, located in a poor, seg reg ated neig hborhood o f Mobile, Alabama. Id

. The referee described Andrews’s g randfather as “lo ving

, benevolent, a nd responsible,” id.

, and the court added that Andrews’s mother
reg ularly sent money and clothing to her children a nd that Andrews’s upbring ing and early family life were “relatively stable and without serious privation or abuse,” id. at 670. W h en Andrews wa s a

r ound nine o r ten, his mother r eturned home to stay

. Id. at 6 6 0
, 670. She had children by another marriag e, of whom A ndrews was jealous. Id. at 660. Around that time Andrews’s g randfather, a “pivotal fig ure” in his life, died. Id. (internal q u o tation marks omitted). Andrews became withdrawn, skipped school, and at ag e 14, committed

car theft and was sent to a r efor m school known as Mt. Meig s, formally the Alabama I ndustrial School for Neg r o Children. Id

.

The conditions at Mt. Meig s, described succinctly by the
state court as “appalling ,” included “ beating s, brutality

, inadequate conditions and sex u a l p r e dators.” Id. at 660–61 (internal quotation marks omitted). According to the

r e f e r e e’s report, one witness described it as “a farming
oper a t i on and a penal c olony for children,” while others described “inhuman conditions, inadequate food and clothing and severe beating s,” with “ sticks, broom handles, tree limbs, and hoe handles

. . . or f

an belts.” Andrews w as released at ag e 16. Id. at 661.

W ithin three months of his release, in September 1 966, he and a companion were involved in the a ttempted robbery a nd murder of the g rocery store clerk that became one of the threeA N D R E W S V

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special circumstances in this capital case. See supra at 9; I n

re Andrews

, 52 P.3d at 661. T h e evidence showed that when Andrews and his companion were fleeing the scene in a tax i, they robbed the tax i driver a t gu n p o int. In re Andrews

, 52 P

. 3d at 661. The tax i driver testified he heard A n drews s a y “[ l] et’s shoot him.” Id. at 665 ( internal q uotation marks omitted). Andrews then fired at least two shot s a t t h e tax i driver. Id

. I n 1967, Andrews was convicted of murder based on the g rocery

store incident, and in 1968, he was convicted of armed r o b b e ry o f the tax i driver. Id. at 6 61 n .4. J ust before he turned 18, he w as committed to Alab a m a state prison. Id. at 661.

Summariz ing the r eferee’s f inding s about conditions in the four different prisons i n wh ich Andrews was confined over ten y ears, the California Supreme Court stated:

[ The referee] described conditions in these institutions as aby smal, characteriz ed b y

severe overcrowding

, racial seg reg ation, substandard facilities, n o separa t i o n of the toug her inmates from y oung er or smaller inmates, consta n t v iolence, the persistent threat of sex ual assaults and the constant pr e sence of sex ual pressure, the availability and n ecessity of weapons by all inma t es, a nd deg rading conditions in disciplinary modules. [ Andrews] not only received beating s but was also personally

subjected to sex ual assaults.

Id . (internal quotation marks omitted).

The court also noted that Andrews h ad b een involved in prison violence, including “the stabbing s of two inmates w hoA N D R E W S V

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had been threatening h i m

. ” Id

. (internal quotation marks omitted). However, A n d r e w s “was rarely the instig ator o f

v i o l ence,” w as “the prey rather than the predator” when h e

was involved, and was often a t ar g et of violence due to his

sma l l stature. Id

. at 662 (internal quotation marks omitted). He also “appeared to adjust well w hen the structure p ermitted and . . . w ould continue to do so” and, “when circumstances permitted, he tended to hold positions of responsibility

. ” Id

.

After his r elease from p rison in 1976, Andrews eng ag ed in an a t t e m p t e d r o bbery o f a laundry

. Id. at 661. I n this incident:

M o b ile Police Officer Pettis testified that o n March 23, 1 9 7 7
, he responded to a r obbery

ca l l

. Entering the store from which the c all
came, he and other officers saw [ And rews] holding a cry

ing y o ung woman h o stag e with

a cocked g un a t her head. H e told the officers
to leave and “continued to repeat, ‘Someone’s
g oing to g et shot, I ’m g oing to shoot

. ’” The officers withdrew. Ultimately

, [ Andrews]

surre ndered to the officers after releasing the
y oung woman and an o t h e r woman whom he had also held hostag e.

Id

. at 665. Andrews w as arrested f or the robbery

, but escaped from jail and fled to California. Id. at 661.

I n California, Andrews met Debra Pickett, with whom he had a stable relationship. Id. T he couple had a child, a nd Andrews held a job during this t ime. Id. B ut Andrews resumed using cocaine, left his job and family

, and then committed the three murders at issue here. Id.A N D R E W S V

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The referee also desc r i bed the testimony f rom mental health ex p erts that could have been presented at the penalty phase. Summariz ing the referee’s report, the California Supreme Court n o ted that the ex perts diag nosed And r e w s with a rang e of mental disorde r s , i n c luding attention deficit disorder, post traumatic stress disorder (PTSD), and m i l d to moderate o rg anic brain impairment, in part due to d r ug use and possibly

due to a head injury in prison. Id

. The ex perts opined that Andrews’s learning d i sability

, the adverse circumstances of his childhood, the impact of the correctional
sy stems, and the PTSD made his commission of the murders and sex u al assault more understandable and less morally culpable. Id. at 661–62. The ex perts g ave specific ex amples of how Andrews’s impairments and t h e b rutal conditions o f incarceration made it d ifficult for him to avoid g etting into
tr o u b l e w i t h the law. Id. at 661–62, 670. F or ex ample, o ne psy chiatrist testified that one of the v ictims had hurled an insulting slur a t Andrews a few day s before the murders, a nd Andrews’s PTSD would predispose him to o ve r react to the slur, which contributed to the ex pert’s c onclus ion that Andrews was “under the influence of ex treme mental o r emotional distress” when he committed the murders.

I n addressing the question whether the prosecutor would have introduced evidence damag ing to Andrews i n rebuttal, the referee found that the prosecution’s r ebuttal presentation could have included evidence about two of Andr e w s’s prior convictions. 3 I

d. at 664–65. First, d

uring the penalty phase

3 A n d rew s arg u ed th at th e p ro secu t o r testif ied h e w o u ld n o t h av e p u t on

a d d i t io n al ev id en ce, b u t th e Calif orn ia S u prem e Co u rt rej ected th is
arg u m en t, f

in d in g th at p resen tatio n o f th e m itig atin g ev id en ce w o u ld h av e p ro m p t ed th e p ro secu to r to sh if t th e f o cu s o f h i s p en alty p h ase case, p u tA N D R E W S V

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of Andrews’s trial, the jury was reminded of its special circumstance finding

, that Andrews h ad been co nvicted o f murder in 1967 fo r his involvement in the g rocery store robbery -murder in 1966

. I t also heard that Andrews was convicted of robbery in 1968, but it did not hear the facts on which the conviction was based, such as evi d ence that Andrews shot at the d

river of the g et-away tax i, which could have b een introduced as ag g ravating evidence. Id. a t 6 59, 664. T he prosecution could h ave introduced that evidence to show A ndrews’s g reater moral culpability for the incident. Id. at 664. Second, the p r osecution could have informed the jury about Andrews’s a ttempt to rob a laundry business following his release from priso n i n 1976, which involved holding two women hostag e, one with a g un to her head. Id

. at 661, 665.

F urther, the referee determined that the prosecution could have called its own mental health ex p erts to r ebut Andrews’s evidence. Id

. at 665. The state could have p resented ex pert testimony that Andrews did not suffer from PTSD, but rather suffered from antisocial personality disorder, resen t ed authority

, a

nd had a normal-rang e I Q o f 9 3

. Id

. A second

ex p ert would have testified t hat Andrews’s ability to hold a job and maintain a stable relationship with Debra Pickett before he committed the murders indicated he did not suffer from b rain damag e, and the planning and though t t h at went into the murders made it u nlikely that he was under the influence of drug s at the time. Id

.

After recounting the referee’s f inding s on these questions

as well as the o ther four quest i o n s , and resolving o bjections

o n ad d i t io n al w itn esses, an d u s e cro s s- ex am in atio n an d clo sin g arg u m en t to f u rth er d am ag e A n d rew s’ s m itig atio n case. Id . at 6 6 5

– 6 6.A N D R E W S V

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to the referee’s report, the California Supreme Court turned
to its analy sis of Andrews’s ineffective assistance o f counsel claim. I d

. at 6 6 7

. I t held that Andrews’s counsel’s performance was not d eficient during the penalty phase o f the trial becau s e Andrews’s counsel made a reasonable investig ation, under then

- ex isting p rofessional norms a nd Supreme Court precedent, and counse l also made a reasonable decision not to conduct a dditio n al investig ation. Id

. 667–71. I t then held that e ven i f c o unsel’s performance

were deficient, Andrews suffered n o p rejudice becaus e a different result was not re a sonably probable in lig ht of the severity of h is crimes, the f act that the jury mig ht view some of his mitig ating evidence as ag g ravating

, and the substantial rebuttal evidence that could have been presented. Id

. a t 671.

Andrews filed a h abeas petition in federal district court. His a mended petition raised 32 claim s, including multiple subclaims. I n a leng thy ruling o n the merits of the petition,
t h e d istrict court denied 31 claims, but g ranted relief on the claim that Andrews’s counsel were ineffective at the penalty phase of his trial for failing to invest i ga t e a nd present ad d i tional mitig ating evidence. Reviewing the evidence produced by the referee on this issue, the district court concluded that counsel had made “essentiall y no effort to in v e s t i g ate and put o n e v idence in mitig ation,” which

cons t i tuted deficient performance under Strickland

. The
court then ruled that counsel’s “failure to adequ a t ely investig ate and discover evidence of a life filled w i t h abuse and privation i s sufficient to e stablish p rejudice under Strickland ,” but the c ourt did not conside r w hether the California Supreme Court’s rejection of this ineffective assistance of counsel claim was “contrary to, or involved an

un r easonable application of” Strickland under 28 U .S.C. § 2254(d)(1). The court g ranted Andrews’s p e tition on thisA N D R E W S V

. D A

V I S 18

ineffective assistan c e of counsel claim, denied Andrews’s other 31 claims, and g ranted a cer tificate of appealability (COA) on Andrews’s claim that California’s lethal injection protocol violates the Eig hth Amendment (Claim 25).

Andrews timely appealed, challeng ing the district court’s denial of Claim 25 a

n d the d e nials of several uncertified claims. The state cross-appealed the district court’s g rant o f relief on A ndrews’s ineffective assis t ance of counsel c laim. After briefi n g on his appeal was complete, Andrews moved for permission to brief an additional uncertified claim, in which he seeks hab ea s r elief o n the g round that it would violate the Eig hth Am e n d m e n t to ex ecute h im after a long delay from t h e d ate o f his sentencing

. W e g r a nted the motion.

I I

W e review a d istrict court’s g rant or denial of h ab eas relief de novo. Moses v. Payne
, 555 F .3d 742, 750 (9th Cir. 2009).

A

The Anti t e rrorism and Effective Death Penalty A ct (AEDPA) a

pplies to Andrews’s federal habeas petition, which w as filed af

t e r A p ril 24, 1996. S

e e Lindh v. Murphy

, 521 U.S. 320, 322, 336 (1997). Under AEDPA, a c ourt may not g r ant a habeas petition “with respect to any claim that was adjudicated o n t he merits in State c ourt proceeding s,” 28 U.S.C. § 2254(d), un l e s s the state c ourt’s judg ment “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established F ederal law,

as determined by the Supreme Court of the United Stat e s,”A N D R E W S V

. D A

V I S 19

§ 2254(d)(1), or “was b a s e d on an unreasonable determination of the facts in lig ht of the evidence p re s e n ted in the State court proceeding ,” § 2254(d)(2). 4

Under § 2254(d)(1), the relevant Supreme Court precedent includes only the d ecisions in ex istence “as of the time the state c ourt renders its decision.” Gr e e n e v. Fisher

, 132 S. Ct. 38, 44 ( 2011) ( i nternal quotation marks a nd emphasis omitted); see also Cullen v. P i nholster

, 131 S. Ct. 1388, 1399 (2011) (“State-court decisi ons are measured
ag ainst [ t h e Supreme] Court’s precedents as of the time the
state court renders it s decision.” (internal quotation marks omitted)). Thus, Supreme Court cases d e cided after the state court’s deci s i o n are n ot clearly established p recedent under § 2254(d)(1) for purposes of evalu a t ing whether the state court reasonably applied such precedent.

A Supreme Court p r ecedent is not clearly established law under § 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court, W right v

. V an Patten
, 5 52 U.S. 120, 125–26 (2008) (per curiam), o r “ e s tablish[ es] a leg al principle that ‘clearly ex tends’” to the case before the state court, Moses
, 555 F .3d at 7 5 4 (alterations omitted) (quoting Van Patten
, 552 U.S. at 123); see also Care y v. Musladin

, 549 U.S. 70, 76–77 (2006) ( holding that Supreme Court cases evaluating state-sponsored courtroom conduct w ere not clearly established law g overning private acto r courtroom

co n d uct). “[ W ] hen a state court may draw a principled

4 Neith er p arty disp u tes th at th e claim s in th is case w ere “ ad j u d icated on th e m erits” b y th e Calif o rn ia Su prem e Co u rt, a n d th at its d ecisio n

co n stitu tes th e “l a st reaso n ed d ecisio n ” o f th e state co u rt w ith resp ect to th o se claim s

. S

ee Ch en ey v. W

a s h in g t o n , 61 4 F.3 d 9 8 7
, 9 9 3
, 9 95 (9 th Cir. 2 0 1 0 ).A N D R E W S V

. D A

V I S 20

distinction between the case before it an d Supreme Court caselaw, the law is not clearly established for the state-court case.” Murdoch v. Castro
, 6 09 F .3d 983, 991 (9th Cir. 2010). “[ I ] f a habeas court must ex tend a r a tionale before it can apply to the facts at hand, then b y definition the rationale was not clearly established at the time of the state-court decision.” W hi t e v

. W oodall

, 134 S. Ct. 1697, 1706 (2014) (internal quotation marks omitted). A principle is clearly e stablished law g o verning the case “if, and only if, it is so o bvious that a clearly established rule a pplies to a g iven set of facts t h at there c ould be no fairminded disag reement on the question.” Id. at 1706–07 (internal quotation marks omitted).

A state court d ecision is “contrary to” Supreme Court precedent if “the state court a pplies a rule that contradicts the
g overning law set forth in [Supreme Court] cases.” W illiams

v. Taylor

, 529 U.S. 3 6 2, 405 ( 200 0 )

. A n “unreasonable application” of Supreme Court precedent i s n o t one that is merely “inc o r r ect or e rroneous,” Lockyer v

. A n drade

, 538 U.S. 63, 75 (2003); see also W illia m s , 529 U .S. at 410; rather, “ [ t] he pivotal q

uestion is wh e ther the state court’s application of the [ relevant Supreme Cour t p r e c edent] was unreasonable ,” Harrin g t o n v. Richter

, 562 U.S. 86, 101 (2011) (emph a sis added). I f “‘fairminded jurists could disag ree’ on the correctness of the state court’s decision,” that decision is not unreasonable. Id. at 1 0 1 (quoting Y arborough

v

. Alvarado

, 541 U .S. 652, 664 (2004)). A state co u r t summary denial is an “unreasonable application” o f Supreme Court precedent only if “there was no reasonable basis,” id.
at 98, for the decision in lig h t of the “arg uments or theories [ that] . . . could have supported[ ] the state court’s decision,” id. at 102.A N D R E W S V

. D A

V I S 21

The Supreme Court has m a d e c lear that § 2254(d) sets forth a “hig hly deferential standard[ ,]

. . . which demands that
state-court decisions b e gi v e n the b enefit of the doubt.” P inholster

, 1 31 S. Ct. a t 1398 (internal quotation m a r k s omitted). “As amended by AEDPA, § 2254(d) stops short o f i m p o s ing a complete bar o n f ederal-court relitig ation of claims already rejected in state proceeding s,” but only “preserves authority to issue the writ i n cases where there is

no possibility f

airminded jurists could d isag ree that the state court’s decision conflicts with t h i s Court’s precedents” a nd “g oes no f urther.” Richter

, 562 U.S. at 102. “[ E] ven a strong

case f or relief do es n o t mean the state court’s contrary conclusion was u nreasonable.” Id. I n a nutshell, “[ i] f this standard is difficult to meet, that is because i t was meant to be.” Id. at 102.

B

The clearly established federal law for ineffective assistance of counsel claims, as deter m i n e d by the Supreme Court, is Strickland v. W

ashington

, 466 U.S. 668 (1984), a nd its prog eny

. See Pinholster

, 131 S

. C t

. a t 1403. S trickland concluded that, under the Six th Amendment, the accused has the rig ht to the ef

f e c t i v e a ssistance of counsel at trial a nd during capital sentencin g p roceeding s. 466 U.S. at 684–87. A p etitioner c l a i ming ineffective assistance of counsel must prove: (1) that “counsel’s performance was deficient,” a nd (2 ) t h at “ the deficient performance p rejudiced the d efense.” Id. at 687. “[ A] court need not determine whether counsel’s performance was d eficient before ex amining the prejudice suffered b y the defendant as a result of the alleg ed deficiencies.” Id. a t 697. Rather, “[ i] f it is easier to dispose of an ineffectiveness claim on the g round of lack of sufficient prejudice, which w e ex p ect w i l l o f t en be so, that courseA N D R E W S V

. D A

V I S 22

should be followed.” Id. I n short, a court need not addr ess the two Strickland p rong s in order; if ruling on the prejudice
prong more e fficiently resolves the case, r e a c h i n g the deficiency

prong is unnecessary

. Id.

I n determining whether a state court’s adjudication of an ineffective assista n c e of c o unsel claim w as an unreasonable application of Supreme Court precedent, we m ay consider how the Supreme Court itself has applied Strickland to other factual contex ts, but this is merely “illustrative of the proper application of [ S

trickland ’s] standards.” See W iggins v

. Smith

, 539 U.S. 510, 522 (2003); see a lso Pinholster

, 131 S. Ct. at 1407 n

. 1 7 ; Brian R. Means, Federal Habeas Manual § 3:29 ( 2014 )

. The Supreme Court has warned us not to d e rive “strict rules” from its cases apply ing Strickla n d d e

novo because “the Strickland test ‘of nece s s i t y requires a case-by -case ex amination of the evidence.’” Pinholster

, 131 S.Ct. at 1407 & n.17 (quoting W illiams

, 529 U.S. at 391). F urther, Supreme Court cases decided on de novo r eview “offer no g u idance with respect to w hether a state court has unreasonably determined that prejudice i s l a c k i n g ” or defense counsel was deficient, and so are not directly applicable to a federal court’s review under § 2254(d ) ( 1 ) of a h abeas petitioner’s claim that a state co u r t unreasonably a pplied Strickland

. Id. at 1411. I ndeed, a state court’s application o f Strickland may be objectively reasonable base d o n clearly established Supreme Court p recedent at the time o f i ts decision even if the Supreme Court’s subsequent applications of S trickland sug g est a d ifferent result. B y contrast, when the Supreme Court addresses the A E DPA question whether a state court’s adjudication o f an ineffective assistance o f counsel claim was an unreasonable application of Strickland

, its reasoning g uides a federal court’s AEDPA analy sis
reg ardless of when the opinion was issued.A N D R E W S V

. D A

V I S 23

The Supreme Court has provided g uidance for a pply ing Strickland to determine w hether counsel’s “deficient performance prejudiced the d efense,” S trickland

, 466 U .S. at 6 8 7
, a t the penalty phase of a capital case. To make t h i s prejudice determination, a court g enerally proceeds throug h three steps: (1) evaluating and weig hing the totalit y o f the

ava ilable mitig ation evidence, see W illiams

, 529 U.S. at 397–98; P inholster

, 131 S. Ct. at 1408–10; (2) evaluating a nd weig hing the ag g ravating evidence and a ny rebuttal evidence that c ould have been adduced by the g o v e rn m e n t had the mitig ating e vidence b een introduced, W illiams

, 529 U.S. at 397–98; Pinholster

, 131 S.Ct. a t 1408–10, and (3) reweig hing the evidence in ag g ravation ag a inst the totality of available mitig ating e v i d e n c e, see Sears v. Upton
, 561 U.S. 945, 955–56 (2010) (per c u r i a m); W iggins
, 539 U.S. at 534; W illiams

, 529 U.S. at 397–98, to determine “whether there is

a reasonable p robability that, absent the errors, the sentencer

. . . would have concluded that the b alance of ag g ravating a nd mitig ating circumstances did not w arrant death,” Strickland

, 466 U.S. a t 695. W e ex p lain the Supreme Court’s g uidance on each of these steps.

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 mitig ation evidence.” W illiams

, 529 U.S. at 397–98. The e v idence to be evaluated includes both evidence that was actual ly p resented at sentencing and e vidence that a competent a t t o r ney would have introduced. See W

iggins
, 539 U .S. at 534–35. W e may

assume that a competent attorn ey would have considered presenting all of the evidence adduced in post-convictionA N D R E W S V

. D A

V I S 24

proceeding s. See W

ong v. B elmontes

, 558 U.S. 15, 20 (2009) (per curiam).

Mitig a tion evidence is a broad categ o ry , as a jury must be permitted to consider all relevant mitig ating factors. Lockett

v. Ohio

, 4 3 8 U.S. 586, 608 (1978) (plurality opinion); Eddings v. Oklaho m a , 4 5 5 U.S. 104, 1 10–12 (1982). The Supreme Court h as iden t i fied several non-ex clusive categ ories of mitig ation e vidence, f ocusing primarily on evidence that aids the jury ’s e v a l u ation of a defendant’s moral culpability

. See W iggins
, 539 U.S. at 5 3 5

. F o r i n s t a n ce , e v i d e nce of a defendan t ’ s d i s a d v a n t a g e d backg round may lead a jury to conclude the defendant is “less culpable than defendants who have no such ex cuse.” Penry

v. Lynaugh

, 492 U.S. 302, 3 19 (1989) (internal quotation marks omitted), abrogated o n other grounds by Atkins v

. Virginia
, 536 U.S. 304 (2002). Thus, a defendant who had a childhood “filled with abuse and privation,” including being raised by p a r e n t s who were eventually imprisoned for criminal child neg lect, could influence a jury ’ s a p praisal o f the defendant’s moral culpability

. W illiams

, 529 U .S at 395, 398; see also W

iggins , 539 U.S. at 535 (mitig ating evidence included evidence that the d e f e n d a n t suffered severe privation and abuse as a child, had an alcoholic and absent mother, was phy sically and sex ually abused in foster care, and was homeless for a b rief period); Rompilla v. Bea r d

, 5 4 5 U.S. 374, 391–93 ( 2005) (mitig ating evidence includ e d evidence th a t t h e d efendant was raised in a slum by severely abusive, alcoholic p arents, who did not p rovide for him and isolated him).

Similarly

, evidence of a d efendant’s mental or emotional difficulties may lead a jury to concl u d e t h a t a defendant is less culpable than d efendant s without such difficulties.A N D R E W S V

. D A

V I S 25

Penry
, 492 U .S. at 319. F or i n s tance, evidence that a defendant is “borderline mentally retarded,” W illiams

, 5 29 U.S. at 396 (internal quotation marks omitted), or h a s

severe PTSD from military combat, see Porter v. McCollum

, 558 U .S. 30, 35–36 & n.4, 43–44 (2 0 0 9 )

, o r has severe learning and behavioral disabilities, frontal lobe injuries, a nd brain damag e from drug and alcohol a b u s e , see S ears , 561 U.S. at 948–49, is potentially mitig a ting evidence.

Evidence of conduct or behavior demonstrating t he defendant’s g ood character may also be mitig ating

. I n W illiams

, the Court g ave weig ht to evi d en c e that the defendant had turned himself in, alerted police to a previously undetected c rime, ex p ressed remorse, cooperated with police, and behaved well in prison. 529 U.S. a t 369, 396, 398

. I n Belmontes

, the Court noted mitig ation evidence that the defendant had maintained strong rela tionships with family members in spite of his terrible childhood, and that while in prison, h e assisted others throug h a prison relig ious prog ram and rose to second in command in a fir e c r e w

. 558 U.S. at 21.

After identify ing the evidence that the petitioner claims to be mitig a ting

, a c ourt must weig h its streng th by assessing its likely impact on a jury

. This weig h ing process includes evaluating w hether its impact on the jury m i gh t be
ag g r avating rather than mitig ating

. See Pinholster

, 1 31 S. Ct.
at 1410. The Supreme Court has indicated that c o u r ts can consider the f

ac t t h at mitig ation “may be in the ey e of the beholder,” and juries may find that some evidence offered a s mitig ation cuts the other way

. Burger v. Kemp
, 483 U.S. 776, 794 (198 7 ) ( a lterations and internal quotation marks omitted). I n Burger
, the Court noted that “[ o] n o n e hand, a jury could
react with sy

mpathy over the trag ic childhood” of theA N D R E W S V

. D A

V I S 26

defendant, while on the other hand, the same testimony could establish th e defendant’s “unpredictable propensity for violenc e ” that resulted in murder. I d. (internal quotation marks omitted). Similarly

, evidence of mental and emotional problems mig ht sug g est an increased likelihood that a defendant would be dang erous in the future. See Pinholster

, 131 S. Ct. at 1410 ( n o t ing that e v idence of the defendant’s family backg round, their substance abuse, and thei r mental health issues, was “by no means clearly mitig ating

, a s the jury mig ht have concluded that [ the defendant] was simply bey ond rehabilitation”). The Court has also observed that evidence of the defendant’s normal y outh mig ht, in the j ury ’ s ey es, estab l i s h greater moral culpability on the part o f the defendant. See Bell v. Cone , 535 U.S. 685, 701–02 (2002).

2

The s e cond step in determining whether counsel’s deficient p erformance prejudiced the defendant at the penalty phase is evaluating the weig ht of the a ggr av ating evidence and any rebuttal evidence that could have been adduced b y the g overnment had the mitig ating evidence been introduced. See W illiams

, 529 U.S. at 397–98; P inholster

, 131 S. Ct. at 1408–10. Ag g ravating evidence may in cl u de evidence relating to the circumsta n ces of the crime. Thus in Strickland

, the Court found the ag g ravating evidence to be “overwhelming ” where the defendant had repeatedly stabbed the three murder victims during a robbery

. 466 U.S. at 674, 700. Simila r l y , w h ere the record showed that the defendant had bludg eoned a woman to death with 15 to 20 blows of a steel d umbbell bar to steal g oods w orth a mere $100, the Supreme Court ag reed with the st ate court that the
ag g r avating evidence was “ simply overwhelming ” a nd determined that counsel’s failure to introduce c ertainA N D R E W S V

. D A

V I S 27

mitig ating evidence was not prejudicial. Belmontes

, 5 5 8 U.S.
at 15–16, 2 6–27 (internal quotation marks omitted). I n Bobby

v. Van Hook

, the Supreme Court g ave weig ht to evidence that the murder was committe d in the course of a scheme to rob homosex ual men by luring them into s ecluded setting s. 5 58 U.S. 4, 12–13 ( 2009) (per curiam). I n doing so, the Court clarified that the weig ht, not the number, of the
ag g r avating factors was important. I d.

Evidence a

b out a defendant’s prior criminal history is also
ag g r avating and can be introduced in rebuttal, and a severe crimina l h istory carries g reat weig ht. See W oodford v

. V isciotti
, 5 37 U.S. 19, 26–27 (2002) (criminal history that included “the kni fi n g o f one man, and the stabbing of a preg n ant w oman as she lay in bed try ing to protect her unborn baby ,” combined with the circu m s t a nces of the crime, was “overwhelming ” and “devastating ” a g g ravating evidence); accord Bel l

, 535 U.S. a t 700 & n.5 (defense counsel reasonably feared the prosecution would e licit information about defendant’s criminal history

, which included robberies, in rebuttal); Burger
, 483 U.S. a t 7 93 (defense counsel reasonably feared the prosec u tion would introduce the defendant’s juvenile criminal history in rebuttal, when he h ad

a clean a dult record). Evidence that a defend ant h ad previously committed anot h e r m urder may be “the most powerful imag inable ag g r avating evidence.” Belmontes

, 558 U.S. at 28 (internal quotation marks omitted).

Rebuttal evidence may also directly u ndermine the value of the mitig ation evidence. F or ex ample, the Supreme Court
not e d i n Pinholster that it would be “of questionable mitig ating value” for defense counsel to introduce e x p er t testimony diag nosing a defendant with bipolar mood disorder and seiz ure disorders, because such e v idence would inviteA N D R E W S V

. D A

V I S 28

r e b u t t al by a state e x pert, who could reject the diag nosis o f bipolar disorder and offer a d i f fe r ent d iag nosis of a

ntisocial personality disorder. Pinholster , 131 S. Ct. at 1396, 1410.

3

F in a l l y , the third step in determining whether counsel’s deficient p erformance prejudiced the defendant at the penalty phase is to “reweig

h the evidence in a gg ravation ag ainst the totality o f available mitig ating evidence,” W iggins
, 539 U.S.
at 534, in order to d etermi n e “w h e ther there is a reasonable
pr o bability that, absent the errors, the sentencer

. . . would have concluded that the balance of ag g ravating a nd mitig ating circumstances did not warrant d eath,” Strickland

, 466 U.S. at 695. A “reasonable p robability ” is a level of probability that “undermine[ s] confidence i n the outcome.” Id. at 694. However, counsel’s d eficient p erformance is not p r ejudicial merely because the court cannot “rule out” t h e possibility that the sentencer would have imposed a se n t e nce of life in prison instead of the death penalty

. Belm o n t e s , 5 58 U.S. at 20, 2 7 (internal quotation marks omit t e d); see also Richter

, 562 U.S. at 111 (“I n assessing prejudice under Strickland

, the question is not whether a court can b e certain coun s e l’s performance had no eff

e c t o n the outcome

. . . .”). Rather, “[ t] he likelihood of a different result must be substantial, not just conceivable.” Richter

, 562 U .S. at 112 (citing Strickland

, 466 U.S. at 693). Thus, “the difference between Strickland ’s prejudice standard a

n d a more-probable-than-not standard is slig ht and matters ‘only in the rarest case.’” Id. (quot i ng Strickland , 466 U.S. at 697).

The Court has f

ound a reasona

b l e probability of a different outcome when only scant and weak ag g ravating evidence could h ave been presented in rebuttal to strong lyA N D R E W S V

. D A

V I S 29

mitig ating evidence. See W ig g i n s , 539 U.S. at 534–36, 537–38 (holding that there was a reasonable probability

that the jur y w o uld have reached a different result at sentencing had it heard powerful m i tig ating evidence reg arding the defendant’s childhood backg round, when the state could have presented only weak rebut t al evidence). B y contrast, the Court has found n o prejudice when the ag g ravating evidence is overwhelming

, even thoug h the mitig atin g e v i dence is
st r ong

. See Visciotti
, 5 37 U.S. at 26–27 (holding that there

was no reasonable p robability of a different result when the mitig ating evidence, including the defendant’s “troubled family backg round” and p ossible s e i z ure d isorder, did not outweig h the “overwhelming ” ag g ravating factors, including the circumstances of the crime and potential rebuttal evidence of prior offenses).

I n r e weig hing ag g ravating and mit ig ating evidence, the Court has also ex amined whether mitig ating evidence would be merely cumulative or w ould have sig n ificantly altered the information provided to the sentencer. See Str i ck l a nd

, 466 U.S. at 699–700; Porter
, 558 U.S. at 41–42. I n Strickland

, the new information “would barely have altered” the picture presented at sente n c i n g , and the Court found no prejudice. 466 U.S. at 699–700. Similarly

, in B elmontes

, the Court concluded that merely cumulative evide n ce reg arding

a pe t itioner’s difficult childhood, and ex pert testimony

r e g arding a p etitioner’s mental state “seeking to ex plain h i s behavior, or putting it in some favorable contex t” would not outweig h the facts of a b rutal murder, a nd would be even less likely to outweig h evidence that the d efendant had committed

a prior murder. 558 U.S. at 2 2–24, 27–28. According ly

, the Court concluded that a

ny failu re of counsel to present additional mitig ating evidence was not prejudicial. Id. a t 27.A N D R E W S V

. D A

V I S 30

These Supreme Court opinions sug g est that under Strickland ’s prejudice prong , cumulative mitig a ting evidence does not support a co n c l u s ion that there would be a reasonable probability of a different outcome. New mitig ating evidence can support such a conclusion only if i t is suff i c i e n tly strong , and the known or additional
ag g r avating evidence is not overwhelming

.

C

I n lig ht of this g uidance, we now evaluate the California Supreme Court’s re

j ec tion of Andrews’s claim that he was prejudiced by h is counsel’s failure to investig ate and present additional mitig ating evidence at the penalt y p h a se of his trial. W e must determine whether this decision was “ contrary to, or involved an unreasonable application of,” Strickland o r other Supreme Court precedent in ex istence at the time of its opinion. § 2254(d)(1); see Pinholster , 131 S. Ct. at 1399.

I n considering whether any deficiency by Andrews’s counsel was prejudicial, the California Supreme Court correctly f

ollowed Strickland in asking whether, even if counsel was deficient, Andrews’s defense was not p rejudiced by any such deficiency because a different result was not reasonably probable. 5 See In r e A n drews

, 52 P.3d at 671

5 A n d rew s arg u es th at th e s t a t e co u rt f ailed t o ap p l y th e co rrect leg al
stan d ard estab lish ed in Ten na rd v. Dretke

, 5 42 U.S. 2 7 4 (2 00 4 ) an d S m ith

v. Texa s , 5 4 3 U.S. 3 7 (2 0 0 4 ), b ecau se it d ism i ssed A n d rew s ’ s m itig atin g

ev id en ce o n th e g r o u

n d th at th e ev id en ce w as n o t u n am b ig u o u sly

m itig atin g , a n d i m

p lied th at th ere m

u st b e so m e co n n ectio n b etw een th e

m itig atin g ev i d en ce n o t i n tro du ced at th e p en alty p h ase an d th e crim es. W e d isag ree. Ten n a rd an d S mith req u i re a sen ten cer to h av e th e

o p p o rtu n ity to co n sid er an d g iv e ef f ect to all relev an t m itig atin g ev id en ce, b u t d o n o t sp ecif

y w h at w eig h t th e sen ten cer m u s t g iv e s u ch ev id en ce.A N D R E W S V

. D A

V I S 31

(quoting S

trickland

, 466 U.S. a t 694). The California Supreme Court then re a s onably carried out the three steps indicated by Supreme Court opinions for evaluating prejudice at the penalty

phase.

1

The c ourt first considered t h e t o tality of the mitig ating

ev i d e n c e presented at trial, as well as what mitig a tion could have been presented by a comp e t en t attorney , based on the six -y ear review and report by t h e referee. See W illiams

, 529 U.S. at 397–98. T h e court reviewed all of the mitig ating evidence that Andrews presented, including Andrews’s family backgr o u n d

, In re A ndrews

, 52 P.3d at 660, 670, incarce r a t ion in Mt. Meig s and in A labama prisons, 6 id. at

S ee Ed din g s , 4 5 5 U.S. at 1 1 4 –1 5 (“ T h e sen ten cer

. . . m ay d eterm i n e th e

w eig h t to b e g iv en relev an t m itig atin g ev id en ce. B u t [co u rts] m ay n o t g iv e it n o w eig h t b y ex clu d in g s u ch ev id en ce f ro m th eir co n s i d eratio n .”). Here, th e C alif

o rn ia Su p rem e Co u

rt co rrectly co n si d e r ed all m itig atin g

ev id en c e b ef

o re w eig h in g its lik ely ef f ect o n a j u ry

. S

ee Pin h o lster

, 1 3 1 S. Ct. at 1 4 1 0

.

6 A n d rew s’ s claim th at t

h e state co u

rt f ailed t o co n sid er h is ex p erien ces at Mt. Meig s, is n o t su

p p o rted b y th e reco rd

. T h e state c o u rt d etailed A n d rew s’ s ex perien ces at Mt. Meig s w h en d iscu s sin g m itig atin g ev id en ce th at co u ld h av e b een p r e sen ted

, n o tin g th at “ [a]t Mt. Meig s, [A n d rew s]

en co u n tered ap p allin g co n d i tio n s” an d detailin g th e ref eree’ s f in d in g s th at A n d rew s w as “ w as su

b j ected to b eatin g s, b ru tality

, in ad eq u ate co n d itio n s

an d sex u al p red ato rs,” th at “ [h ]is p assiv en ess an d sm all p h y s iq u e cau s ed h im t o b e a targ et o f old er, to u g h er b o y s, f ro m w h o m n o p ro tectio n or sep aratio n w a s p ro v id ed ,” an d th at “ Mt. Meig s f ailed to pro v id e an y

m ean in g f u l reh ab ilitativ e o r ed u catio n al o p p o r tu n ities.” In re An drews

, 5 2 P.3 d at 66 0

– 6 1 (in tern al q u o tatio n m ark s o m itted ). T h e state co u rt also

n o ted th at ex pert testi m o n y w o u ld h av e ad d ressed h is d ru g u se at Mt. Meig s. Id

. at 6 6 1

. Mo reo v er, t h e state co u rt’ s u se o f th e t erm “ p riso nA N D R E W S V

. D A

V I S 32

6 6 0–61, 670–71, and mental health evidence, id. at 661–62
, 670, observi n g that the similar ty pes of mitig ating evidence have been considered in Supreme Court precedent, id. at 672–75; see Penry
, 4 92 U

. S

. at 3 1 9; W illiams

, 529 U.S. at 395–98.

The California Supreme Court then evaluated the streng th of this mitig ating evidence by c onsidering, among other thing s, whether it mig ht b e viewed by a jury as ag g ravating

. See Burger
, 483 U.S. at 7 93; Pinholster

, 131 S. Ct. at 1410. I t reasonably concluded that much of the evidence identified

as mitig ating “was not c onclusively and unam b i g uously mitig ating ,” and it evaluated the possibility that the evidence could b e rebutted or used to A ndrews’s d isadvantag e, or that

cross ex amination mig ht “deflate the mitig a t i n g impact” o f the e vidence. In re Andrews

, 52 P.3d at 670 & n.9. The court reasonably observed that a jury could hav e determined that A n d r ews’s f

amily backg round did not reduce his moral culpability

, g iven that Andrews was raised in a non-abusive, stable family situation. Id. a t 670; c f

. Bell

, 535 U

. S. at 701–02 (sug g esting that evidence of a normal y o u t h mig ht “cut the other way ”). The court rea s o n a bly concluded that “[ Andre w s ] did not suffer a home environment that would place his crimes in any understandable contex t or e x plain his resorting to crime every time he w as released or escaped from prison.” Id. at 670.

I n a ddition, the state court reasonably determined that the evidence reg arding the prison conditions was double-edg ed. On the one h and, the prison conditions evidence left it in “ no doubt [ that Andrews] endured horrifically demeaning a nd

co n d itio n s” in its o p in io n is co n sisten t w ith its u se in th e ref eree’ s rep o rt,

w h ere th e term

ref erred to co n d itio n s b o th

in p riso n an d Mt. Meig s.A N D R E W S V

. D A

V I S 33

deg rading circumstances.” Id

. O n the other hand, the evidence w ould be p resented primarily throug h the testimony of Andrews’s former f e llow inmates, who had serious criminal rec o r d s that c ould “draw[ ] an unfavorable comparison” w i t h Andrews. Id. at 671. “Many h ad themselves e ng ag ed in brutality while in prison and escaped with some f

requency , ” also similar to Andrews. Id

. Moreover, no matter h ow the prison conditions evidence was presented, “[ r] ather than eng endering sy mpathy

, the evidence could well have reinforced an impression of him as a person who had become desensitiz ed and inured to vio l en c e a nd disrespect for the law.” 7 Id. ; cf. Pinholster

, 131 S. Ct. a t 1410.

2

After assessing the weig ht of the mitig ating evidence a nd its likely impact on a jury

, the state court followed Supreme Court g uidance by turning to evaluate the w e i gh t of the
ag g r avating e vidence at trial, as well as any additional rebuttal evidence that c ould have been introduced. S e e W illiams

, 529 U.S. at 397–98; Belmontes

, 558 U.S

. a t 20, 24–28. Consistent with Supreme Court precedent, the state court considered the c ircumstances of Andre ws’s crime a nd the n ature of his prior criminal history

. T urning to the circumstances of the crimes, the state court stated that the murders showed a “ c allous disreg ard for human life.” In re

7 A n d rew s arg u es th at th e s t a t e c o u rt m ad e an u n reaso n ab le d eterm in atio n of th e facts, see § 2 2 5 4 (d )(2 ), in h o ld in g th at th e p riso n

co n d itio n s ev id en ce co u l d b e ag g rav atin g

. W e rej ect th is arg u m en t, b ecau se th e state co u rt’ s co n clu sio n is a reaso n ab le ap p licatio n o f t h e p rej u d ice stan d ard elab o rated b y S trickla n d an d its p ro g en y , n o t a f actu al f in d in g

. Cf. Pin h o lster , 1 3 1 S. Ct. at 1 4 1 0

.A N D R E W S V

. D A

V I S 34

Andrews

, 52 P.3d at 671; cf. Strickland

, 4 66 U.S. at 674, 700; Belmontes

, 558 U.S. at 15, 26–27

. Andrews did not impulsively r e act to a situation that g ot o u t of hand; r ather, he interacted with the vi ctims in a calm and normal manner before torturing

and killing them. In re Andrews , 52 P.3d at 671. He also did more than simply kill the victims. He raped and sodomiz e d B randon before murderin g her, and he also murdered W heeler a

nd Chism with “considerable violence

an d evident sang froid.” Id

. The state court also considered that, as rebuttal e v idence, the prosec u t i o n could have presented the details of Andrews’s criminal history

, cf. B ell

, 535 U.S. at 700 & n.5; Burger , 483 U.S. at 793, from which
t h e jury mig h t conclude Andrews was “ag g r essive a n d desensitiz e d to violence,” In re Andrews

, 52 P.3d at 669. The jury mig ht also hav e co n c luded that this “pattern o f criminality ” showed A ndrews “would pose a dang e r to others if h e w ere sentence d t o l i fe imprisonment.” 8 Id

. Also, the

8 A n drew s arg u es th at th e state co u rt’ s co n clu sio n th at th e ev id en ce g av e rise to th e in f

eren ce o f f

u tu re d an g ero u sn ess w as an u n reaso n ab le d eterm in atio n o f th e f

acts. He arg u es th at t

h e pri s o n s t a b b in g s, lau n d ry

ro b b ery , an d co n d itio n in g to v io len ce d u rin g h is priso n ex p erien ces d o n o t

su p p o r t su ch an in f

eren ce, p o in t in g to m itig atin g f acts f o u n d b y th e ref eree, in clu d i n g th at in so m e in cid en ts, A n d rew s w as d ef en d in g h im self
ag ain st i n m ates w

h o h ad b een th reaten i n g h im

. W e d i sag ree. T h e state

c o u r t co n sid ered th ese m itig atin g f acts (su ch as ev id en ce th at in priso n A n d rew s w as “ th e p rey rath er t h an t h e p r e d ato r” an d acted in self d ef en se), see In re An d

rews , 5 2 P .3 d at 6 6 0

– 6 1
, an d reaso n ab ly co n clu ded th at th e ev id en ce th at A n d rew s w as co n d it io n ed to v io len ce d u rin g h is
p riso n ex p erien ces w as an ag g rav atin g , n o t m i tig atin g , circu m stan ce, see Bu rg er , 4 8 3 U.S. at 7 9 3 (n otin g th at ev id en ce o f a p e t i tio n er’ s tro u bled f am ily b ack g ro u n d co u ld also “ su g g est v io len t ten d e n cies” th at co u ld af f ect th e j u ry

ad v ersely ). B ecau se th e state co u rt reaso n ab ly co n clu ded th at th e j u

ry co u ld h av e f

o u n d f u tu re d an g ero u sn ess ev en h ad th e

m itig atin g ev id en ce b een in tro d u ced

, th e state co u rt d i d n o t u n reaso n ab ly

a p p ly Su p rem e Co u rt p reced en t i n w eig h i n g h o w th e ev id en ce m i gh t im p act a j u ry

.A N D R E W S V

. D A

V I S 35

references to Andrews’s multiple escapes from prison mig ht have been “inflammatory .” Id

.

F inally

, the state court reasonably concluded that the
pro s ecution could have presented its own mental health

ex p erts in rebuttal, and could have used the mental h ea lth evi d e n ce to Andrews’s disadvantag e on cross e x amination. Id. at 6 7 0

. The court noted the referee’s finding s that prosecution ex perts could have testified that Andrews h ad normal intellig ence and did not suffer brain damag e, but h ad antisocial personality traits. 9 Id. ; c f. Pinholster

, 131 S. Ct. at 1396, 1410. Nor was the state court u n r e asonable in concluding that A n drews’s ex perts’ testimony could backfire. F or instance, the court noted that the “compelling ” testimony from one of Andrews’s ex pert psy c h iatric witnesses, opining that A ndrews’s p rison ex perience ca u s e d him to react with
rag e to perceived insults, could cause a jury to conclude that Andrews “was unable to c ontrol lethal impulse s o n the slig htest provocation.” In re Andrews

, 52 P.3d at 670; c f. Pinholster

, 131 S. Ct. at 1 410. F inally

, the presentation o f the mental h e a l t h evidence would have g iven the p rosecutor additional opportunities to repeat the circumstances of these crimes as well as Andrews’s past criminality

. In re Andrews

, 52 P.3d at 670.

9 An d r e w s arg u es th at th e state co u rt u n reaso n ab l y ap p lied Ed d in g s , 4 5 5 U .S. at 1 1 4

– 15
, i n co n clu d i n g t h at a d iag n o sis o f an tiso cial
p erso n ality d iso rd er is n o t m itig atin g

. Ed d in g s i s n o t o n p o in t, b ecau se i t

m erely h eld t

h at a co u rt can n o t p rev en t a j u ry f ro m h earin g s u ch ev id en ce. Id

. T h e state co u rt d id n o t u n reas o n a b ly ap p ly Ed d in g s , o r an y o th er S u p rem e Co u

rt p reced en t, b y o b serv in g th at ev id en ce th at A n d rew s h a d

an tiso cial p erso n a l i ty d iso rd er m ig h t m ak e h im less sy m p ath etic to th e j u ry

. In re An drews , 5 2 P .3 d at 6 7 0

– 7 1

.A N D R E W S V

. D A

V I S 36

3

After evaluating the mitig ating and ag g ravating evidence, the state court re-weigh e d it and a ssessed whether it was reasonably probable that

, i n t he absence of any deficient performance by counsel, the s e n tencer “would have

con cluded that the balance of a g g ravating and mitig ating circumstances di d n ot warrant death.” Strickland

, 466 U.S.
at 6 9 5; see In re Andrews

, 5 2 P.3d at 671–75. T he state court applied the r elevant Supreme Court p recedent, and concluded that Andrews was not “prejudiced by counsel’s r e j e c tion o f

a defense premised on evidence o f [ Andrews] ’s upbring ing

, the Alabama priso n c onditions he e x perienced, and his mental health in lig ht of the circu m s t a n ces of the crimes, g iven the ambig uous nature of s o me mitig ating evidence and the substantial potential for damag ing rebuttal.” Id. a t 671.

R e l ying on the Supreme Court’s decisions in W illiams and P orter , Andrews arg u es that the California S u p reme Court’s decision on t h e issue of prejudice was an unreasonable a

pplication o f Strickland. 1 0 I n W illiams

, the Supreme Court h eld that the state court applied the wrong leg al standard, 529 U.S. at 395–97, a nd so applied S

trickland de novo to the facts of that case, id. a t 397–98; see also P i n h o l ster , 131 S. Ct. at 1410–11. The state c ourt here discussed W

illiams at leng th and reasonably disting uished it

as having “substan t ially dissimilar facts.” In re Andrews

, 52 P.3d at 675. I n W

illiams

, for instance, the defense counsel could have introduced strong character evidence, 529 U .S. at

10 W h ile A n d rew s cites o th er Su p rem e Co u rt an d Nin th Circu it cases, h is
arg u m en t f

o cu s es p rim arily o n W

illia ms an d Po rter

. B ecau se o t h er cases cited b y A n d rew s are n o n

- b in din g , n ot f actu ally an alo g o u s, o r b oth

, w e d o

n o t ad d ress th em

h ere.A N D R E W S V

. D A

V I S 37

398, b ut no comparable evidence of g ood character w a s present in A n drews’s case. 1 1 T he defendant’s “nig htmarish childhood” in W

illiams , 529 U.S. at 395, 398, was far worse than Andrews’s relatively stable family backg round, see In re Andrews

, 52 P.3d at 674. Th e defendant in W illiams was “borderline mentally retarded,” 529 U.S. at 396, 398 (internal quotation marks omitted), while the p r osecution cou l d h ave presented evidence that Andrews was not mentally impaired, but rather had antisocial p ersonality traits, In re Andrews

, 52 P.3d at 6 7 0

. T h e only rebuttal evidence in W illiams was the defendant’s three juven i l e c o nvictions, 529 U.S. at 396, compared to Andrews’s robbery -murder, hostag e taking

, a nd history of escape from prison, In re A ndrews

, 52 P.3d at 675. F inally

, the circumstances of the crime in W illiams were less brutal than Andrew s ’s triple murder, id.

, because the defendant in W

illiams killed the severely inebriate d victim with one blow each to the chest and back after an arg ument, 529 U.S. at 367–68 & n.1. B ecause the facts of W illiams a re dissimilar, the Supreme Court’s determination in W illiams that counsel’s ineffective assistance w as prejudicial does not make the state court’s c ontrary conclusion here unreasonable. See Richter

, 562 U.S. a t 1 01–02; see also Pinholster

, 131 S. Ct. at 1410–11.

Andrews also arg u e s that the state court’s decision was unreasonable in lig ht of Porter

. Althoug h Porter was decided
y ears after the California Supr e m e Court’s opinion in this
case, we g ive i t careful consideration, because it provides direction f

or determining under AEDPA what constitutes an unreasonable application o f Strickland

. I n Porter
, the

11 A n d rew s p o in ts t o ev id en ce th at h e ap p eared to ad j u st w ell t o t h e A lab am a p riso n sy stem w h en co n ditio n s p erm itted

, b u t th is o bserv atio n is w eak er th an

th e ev id en ce in W

illia ms

. S ee 52 9 U.S. at 3 9 6

.A N D R E W S V

. D A

V I S 38

S u preme Court faulted the state court for failing to consi d e r all of the mitig ating evidence reg arding the defendant’s family backg round, mi l i tary service, and mental health issues. F or instance, the state court entirely d iscounted the effect that evidence of the defendant’s brain abnormality and cog nitive defects mig ht have on a jury

. See Porter
, 558 U .S. a t 42–44. F urther, the state c ourt unreasonably discounted mitig ating evidence of childhood a

buse and the defendant’s long record of military

service. Id. at 43–44. Apply ing AEDPA, P orter held that the state court had unreasonably applied S trickland when it held that counsel’s failure to introduce this substantial mitig ation evidence was not prejudicial. Id. at 44.

The state court’s determinations in Porter are not closely analog ous to the state court’s d eterminations in this c a se. Unlike the state court in P o r t er , the state court here

c o n sidered all mitig ation e vidence in the record a nd did n o t fail to consider or “discount to irre levance” sig nificant evidence. See Porter
, 558 U .S. at 43. The mit i ga t i on evidence in Porter
, including that the d e f e ndant served in “horrific” battles of the Korean W ar, suffere d childhood phy sical abuse, and had a brain abnormality

, see id. at 41, is less subject to rebuttal t h a n the mitig ation evidence in this
case, see In re Andrews

, 5 2 P.3d a t 670–71. U n like h ere, where the state’s mental health ex pert disagr e e d with the defense ex p e r ts’ conclusions a nd added a diag nosis o f antisocial personality disorder, see id. at 670, in Porter
, state

ex p erts could not r

ule out the defense ex perts’ mental health diag nosis, and the state court erred by failing to consider this evidence a t all, s ee 558 U.S. a t 36, 42–43. L ikewise, evidence tha t the defendant had g one AW OL did not diminish e vidence of his military service to “inconsequential proportions,” because our nation has a tradition of “according leniency to veterans,” and the evidence was “ consistent withA N D R E W S V

. D A

V I S 39

[ the] theory of mitig ation and [ did] not impeach or diminish the evidence of his service.” Id. at 43–44 (internal quotation marks omitted). Here, by contrast, the state court f ound that Andrews “endured horrific ally demeaning and d eg rading circumstances” in p rison before a cknowledg ing this evidence

was “ double-edg ed,” because it would also b ring befo r e t h e jury Andrews’s history o f

violence both in a

nd out of prison and his escapes, which would be e m p h a s iz ed by their similarity to many of the wi t n e s s e s w ho would testify for him. In r e Andrews

, 52 P.3d a t 670–71. F urther, while the
state c ourt here reasonably determined that the prosecution could introduce d a mag ing ag g ravating evidence, id. at 671, 675, in Porter
, the Supreme Cour t h e l d t hat the amount o f
ag g r avating evidence would be r ed u c e d

, because one o f the
ag g r avating factors was invalid, 5 5 8 U .S. at 4 2

. B ecause Porter is f

actually distinct f

rom this case, it has little b earing

on the question whether the state court unreasonably a pplied the prejudice prong

of S trickland. 1 2

Visciotti
, another Supreme Court cas e that provides direction for determining u nder A EDPA what constitutes an unreasonable a

pplication o f Strickland

, is more closely on point. I n Visciotti
, the Supreme C o u r t considered a state court’s r ejection of a defendant’s Strickland claim. 537 U.S.
at 2 6. The state c o u rt had weig hed the mitig ating evidence, incl u d i n g the defendant’s brain damag e, d ifficult family

12 A n d rew s also u rg es u s to ap p l y o u r recen t decisio n in Do e v. Ayers
, 7 8 2 F.3 d 4 2 5 (9 th Cir. 2 0 15 ), w h ere w e co n clu d ed th at th e d ef en d an t w as p rej u d iced by co u n sel’ s d ef icien t p erf

o rm an ce in f

ailin g t o in v estig ate an d
p resen t m itig atin g ev id en ce, in clu d in g ev id en ce o f h is rap e in priso n

. Do e

v. Ayers is n o t p ertin en t to o u r an aly sis h e r e b ecau se it is a p re- A EDP A

c ase th at d o es n ot ex am in e w h eth er th e state co u rt’ s co n clu sio n w as

u n reaso n ab le. S

ee id

. at 4 4 6
, n .3 1

. No r is Do e clearly estab lish ed law as d eterm in ed b y

th e Su p rem e Co u rt. S

ee § 2 25 4 (d )(1 ).A N D R E W S V

. D A

V I S 40

backg round, and possible seiz u r e disorder, ag ainst the
ag g r avating f

actors, including the circumstances of the crime ( t he cold-blooded killing of two v ictims during a robbe r y )

a n d his c riminal history of knifing a man and stab b i n g a preg n ant woman in bed “try ing to protect her u nborn baby

, ” and c oncluded that the d ef e n dant had suffered no prejudice. See id. at 25–26. After the defendant filed a habeas petition, the district court g rant e d r e l ief and we affirmed. W e reasoned that counsel’s defici en t p e r f o r m ance was prejudicial, because the “ ag g r avating f a c t ors were not overwhelming .” Id. at 2 1–22, 25 (quoting Vis c i otti v

. W oodford

, 288 F .3d 1097, 1 118 ( 9th Cir

. 2002)). The S u p r eme Court r eversed. I t ex plained that “under § 2254(d)(1), it is n ot enoug h to c onvince a federal h abeas
court that, in its independ ent judg ment, the state-court decision applied Strickland i n c o r r ectly .” Id. at 27 (internal quotation marks omitted). Rather

, “ [ t ] he f ederal h abeas scheme leaves primary responsibility with the state courts for these judg ments, and authoriz es federal

- court intervention only when a state-court decision is objectively unreasonable. I t is not that h ere.” Id. I n sum, the Court held that “[ w] hether

or not we would reach the same conclusion a s the California Supreme Court, we think a t the very least that the s t a te court’s contrary assessment was not ‘unreas o n a ble.’” Id. (quoting B ell

, 535 U.S. at 701) ( internal qu o t a t ion marks omitted).

Here, as in Visciotti
, the state court reweig hed Andrews’s mitig ating ev i d e nce a g ainst the brutal circumstances o f the crime and Andrews’s prior criminal history , and determined there w as no reasonable probability that the sentencer would determine that “the balance of ag g ravating and miti ga ting factors did not warrant imposition of the death penalty .” Id

. at 2 2 (internal quotation marks o m i tted). This decision wasA N D R E W S V

. D A

V I S 41

not o bjectively unreasonable, and the r e f ore we are bound to conclude tha t “ [ w] hether or not w e would reach the same conclusion,” we cannot say the California Supreme Court’s conclusion was an unrea sonable application o f Strickland

. See id. at 27.

B e cause the state court’s rejection of Andrews’s penalty phase ineffective assistance of counsel claim was not contrary to or an unreasonable application of S u p r eme Court
p r e cedent, we may not g rant relief on this clai m

. § 2254(d)(1). W e t h e refore reverse the district court’s contrary conclusion. 1 3

I I I

Having addressed the state’s cross-appeal, we n ow turn to Andrews’s appeal of the district court’s dismissal of his sole certified c l a i m (Claim 25) that California’s use of its lethal injection protocol to ex ecute him would violate his Eig hth Amendment rig hts. A ccording to the district co u r t , the California lethal injection protocol mirrored the Kentucky lethal injection protocol upheld by the Supreme Court ag ainst

an Eig hth Amendment c h alleng e in Baze v. Rees
, 553 U.S. 35 (2008). The court re a s o n ed that in lig ht of Baze ’s ruling

, it would be impossible for Andrews to succeed o n his challeng e t o C a l ifornia’s lethal injection p rotocol, and therefore r ejec t e d this claim.

13 B ecau se w e d ecid e A n drew s’ s claim o n prej u d ic e g ro u n d s, w e n eed

n o t ad d ress th e parties’ arg u m en ts reg ard in g w h eth e r co u

n sel’ s p erf o rm an ce w as d ef

icien t at th e pen alty p h a s e

. S t r i ckla n d

, 4 66 U.S. at 6 9 7 . W e also n eed n o t co n sid er th e ad d itio n al ag g rav atin g ev id en ce p u t f o rth b y th e s tate, w

h ich A n d rew s d isp u

tes, an d th eref

o re den y th e state’ s

m o tio n f o r j u d icial n o t ice o f

th ese ad d itio n al m aterials.A N D R E W S V

. D A

V I S 42

At the time the district court r u led in J uly 2009, California did not have a lethal injection protocol in place. As ex p lained in Sims v. Dep’t of Corrections
, the California Department o f Co r r ections and Rehabilitation (CDCR) has the responsibility for developing a procedure for ex ecutions by lethal injection. 216 Cal. A pp. 4th 1059, 1064 (2013). I n December 2 006, a federal district co u r t ruled that CDCR’s procedure v iolated the Eig hth Amendment prohibition ag ainst cruel and unusual punishment. I

d. (citing Morales v. Tilton

, 465 F

. Supp. 2d 9 7 2 ( N.D. Cal. 2006)). Althoug h the CDCR substantia l l y revised its protocol in 2 007, a state trial court invalidated the revised procedure on t h e g r o u nd that it violated the state’s administrative pr o c ed ure a ct. Id. After losing its appeal, CDCR promulga ted a new p rocedure, which took effect on Aug ust 29, 2010. Id. at 1064–65. I n response to a new leg al challeng e, a trial court ag ain invalidated t h e CDCR lethal injection procedure for failure t o comply with the state administrative procedure act and perm a n e ntly enjoined the CDCR from administering ex ecutions by lethal in j ection until i t p romulg ated new reg ulations. Id. at 1 066–67. This injunction was upheld on appeal. Id. at 1083–84. Andrews’s supplemental brief on appeal informed the court that California h ad no lethal injection p r o t ocol in place a s o f November 12, 2014, and the parties have not informed us of
any chang e since that date. Our research reveals none. 1 4

I t is premature to rule o n the constitutionality of a state’s lethal injectio n p r o t o col if the state does n ot have one in place. See Payton v. Cullen

, 658 F .3d 890, 893 ( 9 t h C ir.

1 4 P u rsu an t to a settlem en t ag reem en t ap p ro v ed b y a state co u rt in J u n e 2 0 1 5
, th e CDCR ag reed to beg in th e p ro cess of p ro m u lg atin g a n ew leth al in j ectio n p ro to co l. W

i n c h e l l v

. B e a r

d

, N o

. 3 4

- 2 01 4

- 8 0 0 0 19 6 8 (Cal. Su p er. Ct. J u n e 3 , 2 0 1 5 ).A N D R E W S V

. D A

V I S 43

2011). Therefore, the d istrict c o u rt erred in entertaining this claim, and we dismiss it as unripe. 1 5

I V

Andrews also r aises several unce r t i fied c laims based on the following leg a l theories: (1) unconstitutional delay between sentencing and ex e cution under Lackey v. Texas
, 514 U.S. 1045 (1995) (Stevens, J
., statement re s p e c ting denial of certiorari); (2) ineff e ctive assistance of counsel under Strickland ; (3) failure to disclose material ex culpatory evidence and false testimony under Brady v. M a r y l and

, 373 U.S. 8 3 (1963), a

nd Napue v. Illinois

, 360 U.S. 264, 269 ( 1 9 5 9 ); a nd (4) destruction of evidence in violation of d u e process under California v. Trombetta

, 467 U.S. 479 (1984),

an d i t s p r og eny

. He also raises uncertified c laims based on cumulative error and factual innocence.

W e first turn to the question w hether A n d r ews must obtain a COA for these claims under 2 8 U.S .C. § 2253(c). 1 6

15 In lig h t o f

th is h o l d in g , w e n eed n o t reach A n d rew s’ s claim s th at th e d istrict co u rt erred in d en y i n g h im an ev id en tiary h earin g o n Claim 2 5 or in d eclin in g to stay th is claim to allo w h im to rely o n ev id en ce p resen ted in Mo ra l es

.

16 Sectio n 2 2 53 (c) states:

(c ) ( 1 ) Un less a circu it j u stice o r j u d g e issu es a certif icate o f ap p ealab i lity

, an ap p eal m ay n o t b e tak en to th e co u rt o f

ap p eals f ro m

–
(A ) th e f in al o rd er in a h ab eas co rp u s p r o c eed in g in w h ich t h e d eten t io n co m

p lain ed o f a rises o u t of
p ro cess issu ed b y

a State co u rt; o rA N D R E W S V

. D A

V I S 44

Our analy sis of this question is g o verned b y Jennings v

. Stephens

, which considered w hether a habeas petitioner w ho obtained relief in the district court could defend this judg ment

on alternate g rounds without taking a cross-appeal and obtaining a COA. 135 S. Ct. 793, 7 98 (2015). Jennings h eld that a habeas petitioner in such c ircumstances need not take

a cross-appeal so long as the petitioner did not attempt to defend the district court’s judg ment o n a theory that seeks “to enlarg e his ri gh t s or lessen the State’s under the District Court’s judg ment g ranting habeas relie f

. ” I d. at 798, 801–02. 1 7 F urther, because “§ 2253(c) a pplies o nly when ‘an appeal’ is ‘taken to the court of appeals,’” id

. at 802 (quoting § 2 2 5 3 (c)), a p etitioner who does not have to take a crossappeal does not need a COA, id. Apply ing this rule, Jennings noted that the district court’s judg ment g ranting the p etitioner relief at the p enalty phase of his trial entitled him “ to release,
resente n c i ng , or commutation, at the State’s option.” I d. at 799. According ly

, “[ a] n y potential c l ai m that would have entitled [ the petitioner] to a new sentencing p r oceeding could

(B ) th e f in al o rd er i n a p ro ceed in g u n d er sectio n 2 2 5 5

. (2 ) A certif

icate o f ap p ealab ili t y m ay issu e u n der
p ara g rap h (1 ) o n ly if th e ap p lican t h as m ad e a

su bstan tial sh o w in g o f th e d en i al o f a co n stitu tio n al rig h t.

(3 ) T h e certif

icate o f ap p ealab ility u n d er p arag rap h (1 ) sh all in d icate w

h ich sp ecif

ic issu e o r issu es satisf

y th e sh ow in g req u ired b y

p arag rap h

(2 ).

17 Jen n in g

s w as n o n eth eless caref

u l to n o te th at a p etiti o n e r d ef en d in g h is j u d g m en t o n ap p eal w o u ld b e “ co n f in ed to th o se altern ativ e g ro u n d s p resen t in th e reco rd : h e m ay n o t sim p ly arg u e a n

y altern ativ e b asis,
reg ard less o f

its o rig in .” Jen n in g s, 1 3 5 S. Ct. at 8 0 0

.A N D R E W S V

. D A

V I S 45

have been advance d t o ‘urg e

. . . support’ of the judg ment,” id. at 80 0 ( last alteration in orig inal) (quoting United States

v. A m. Ry. Express Co. , 265 U.S. 425, 435 (1924)). Neither

a cross-appeal nor a COA would be required. Id. a t 800–02. B y contrast, “[ a] habeas a pplicant who has won resentencing

w o uld be required to take a cross-appeal in order to r a i s e a rejected c laim that would result in a new trial

. ” I d

. at 800. And “if a habeas applicant has w on retrial below, a claim that his condu c t was constitutionally bey ond the power of the State to punish would require cross-appeal.” Id. I n both such
cases, a COA would also have been r equired. S ee id. a t 802.

Here, Andrews won relief at the district court based on his theory of ineffective assistance of counsel during the penalty phase of his trial. The d istrict court ordered that “the State o f California shall, within 120 d a y s f ro m the entry of this J udg ment, either g r ant Petitioner a new p enalty phase trial, o r vacate the d eath sentence and resentence the Petitioner in accordance with California law and the United States Constitution.” A ccording ly

, Andrews’s righ ts under this judg ment were for a new penalty phas e t r ial or resentencing within a fix ed time, a

nd Andrews may urg e any potential claim present in the record th at would entitle him to a new penalty phase trial o r rese n tencing without taking a crossappeal or obtaining

a COA. See id. at 800–02.

B u t none of Andrews’s uncertified claims suppor t the district court’s judg ment. F ive of h is claims seek a n ew g u ilt phase trial ( his Strickland

, Brady / Napue
, Trombetta

, a

nd cumulative error claims, a n d a factual innocence claim). 1 8 A s

18 W h ile th e Su

p rem e Co u rt h as n o t ru led o n th e q u estio n w h eth er a freestan d in g claim o f f

actu al in n o c e n ce is co g n izab le in h ab eas, it h as

su g g ested th at su ccess o n s u ch a claim (if c o g n izab le) w o u l d en t itle aA N D R E W S V

. D A

V I S 46

ex p lained in Jennings
, because A ndrews wo n r esentencing

, he must take a cross-appeal and obtain a COA to raise a claim that results in a new trial. Id

. His Lackey claim seeks a ruling that the death penalty

cannot be constitutionally imposed on him. B ecause the district court’s order g ave the state the rig ht
to seek the death penalty at a new p enalty phase trial, Andrews’s Lackey a

nd factual innocence claims seek t o “lessen the State’s [ rig h ts] under the Dis t r i c t Court’s judg ment g ranting h a b e a s relief.” Id. at 798. Under Jennings
, A n d r ews must bring a cross-appeal and obtain a COA to raise these claims as well.

W e lack jurisdiction to consider uncertified claims unless

we determine that A ndrews “has made a substantial showing of the denial of a constitutional r i gh t ” a n d g rant a COA. 28 U.S.C. § 2253(c)(2); see also Ninth Circuit Rule 22-1(e) (“Uncer tified issues raised and desig nated [ in a petitioner’s opening brief] will be construed as a mo t i o n t o ex pand the COA

. . . .”). This standard r equires habeas p e t i t ioners to make a “showing that reasonable jurists could debate whether (or, for that matter, ag

ree that) the petition should have been resolved in a different manner or t h at the issues presented

were adequate to deserve encourag ement to proceed further.” Slack v

. McDaniel

, 529 U.S. 473, 484 (2000) (i n ternal quotatio n marks omitted). B ecause the statute is juris d i c t ional, it does not permit “full consideration of the factual or leg al bases adduced in support of t h e claims”; rather, courts may make only a “ t h r eshold inquiry ” to determine w hether the statutory standard is met. Miller-El v

. Cockrell

, 537 U.S. 322, 336 (2003). As the Supre me Court directed in Miller-El

, rather than “[ d] eciding the substance o f

p etitio n er to a n ew g u i l t p h a s e t rial. Herrera v. Co llin s , 5 0 6 U.S. 3 9 0
, 4 0 3 , 4 0 5 , 4 1 7 (1 9 9 3 ).A N D R E W S V

. D A

V I S 47

an a ppeal,” id. at 3 4 2, we “ look to the D i s t r i c t Court’s application of AEDPA to petitioner’s c onstitutional claims,” id. at 336, in lig ht of a “fair interpretation of the record,” id.
at 345, and ask whether “ reasonable jurists would find the district court’s assessment o f the constitutional c laims debatable or wrong ,” id. at 338.

A

W e f irst conside r Andrews’s claim that his ex e cution would violate t he Eig hth A mendment due to the long delay between his sentence and e x ecution. Andrews d i d not raise this claim in h is opening brief on appeal, but moved to file a supplemental b r ief r a ising this claim after a district court issued a decision h old i n g t hat under Furman v. Georgia
, 408 U.S. 238 (1972) a

nd Gr e gg v. Georgia
, 428 U.S. 153 (1976), California’s death p enalty sy stem violated the Eig hth Amendment because its “dy sfunctional administration” resulted in “inordinate and u npredictable” p e r iods of delay before ex e cution, such that ex ecutions do not serve a retributive or deterrent p urpose and will be arbitrary

. See Jones v

. Chappell

, 31 F

. Supp. 3 d 1050, 1 053, 1061–62, 1069 (C.D. Cal. 2014). W e g ranted his motion, a n d ordered the state to respond.

I n his brief, Andrews stated that he raised this c laim to the district court as Claim 26. I n Claim 26, Andrews had a rg u ed that ex e cuting him after 22 y e ars on death row would be cruel and unusual punishment in v i o l at ion of the Eig hth Amendment and would serve no retributive or det er re n t penolog ical purpose. Claim 26 also asserted that Andrews did not cause any unnecess a r y d elay s, b ut merely soug h t to vindicate his con s t itutional rig hts in a sy stem that producedA N D R E W S V

. D A

V I S 48

d elay s. Andrews ex hausted this claim by raising it to th e California Supreme Court, which summarily denied it.

The district court rejected this claim on the merits on the
g round that there has been no demonstration of “ any support in the American constitutional t r adition or in [ Supreme Court] precedent for the p ro p osition that a defendant can avail himself of the panoply o f a ppellate and collateral procedures and then complain when his e x ecution is delay ed,” a quote from Knight v

. Flori d a , 5 2 8 U .S. 990 (1999) (Thomas, J
., concurring in a d enial of c ertiorari), relied o n b y two N inth Circuit cases, Smith v

. Mahoney

, 611 F

. 3 d 978, 998 (9t h Cir. 2010), and A llen v. Ornoski

, 435 F .3d 946, 958 (9th Cir.2006), as evidence that no Supreme C o u

r t p r ecedent supports a claim of unconstitutional delay

.

On appeal, Andrews arg ues that the delay in carry ing out the death sentence makes California’s death penalty unconstitutional both o n its face and as applied to him. After discussing in detail Jones ’s reasoning a n d conclusion that the California death penalty sy stem is unconstitutional, Andrews
arg ues that no fairminded juri st could disag ree with such a

c o nclusion in his c ase, b ecause h e has been continuous l y confined under sentence of death for more than 30 y ears, a nd the d elay s a

re caused by f

actors outside h is c ontrol. Andrews also po i nts to separate statements by individual Supreme Court justices questioning the con stitutionality of the inherent delay in c api t a l cases. S e e , e.g. , Muhammad v

. Florida

, 134 S. Ct. 894 (2014) (B rey er, J
., dissenting from d e nial o f certiorari); Johnson v. B r edesen

, 558 U.S. 1 067 (2009) (Stevens, J
., joined by B rey er, J
., statement respecting denial of certiorari); L a c k

e y , 514 U.S. 1045 (Stevens, J
., statement respecting denial of certiorari) (stating that a prisoner’s claimA N D R E W S V

. D A

V I S 49

that h is 17 y ears o n d ea th row v iolates the Eig hth Amendment ’s p r ohibition a g ainst cruel and unusual punishment was “not without f oundation,” and en c ourag ing state and federal courts to consider the issue).

B e fore we can address this c laim, we must c o nsider several procedural hurdles. As a threshold matter, Andrews did not r aise this claim in his opening brief on appeal. W hile
we g enerally

deem a petitioner to have waived any issue not raised in an opening brief, see United States v. Ull ah

, 976 F .2d 509, 514 (9th Cir. 1992), w e recog niz e ex c e p t ions
to this g eneral rule. Such an e x ception is applicable here: the
state has fully briefed the issue and would suffer no prejudice. See id . Therefore, we conclude we may address this issue.

Nex t, the state arg ues that Andrews’s claim w as n ot fairly presented to the California Supreme C o urt o r the district court, a nd so is both unex hausted and w aived. “A federal
court may not g rant habeas relief to a state prisoner unless he has properly ex hausted his remedies in state court.” Dickens

v. Ryan
, 740 F

. 3d 1302, 1317 (9th Cir. 2014) (en banc) (quoting Peterson v. Lampert
, 319 F .3d 1153, 1155 (9th Cir. 2003) (en banc)). Ex haustion of constitutional c laims requires that the c l ai m s be “fairly presented” in state court, allowing the state courts an “opportunity to act on them.” Id.
at 1318 (alterations a n d i nternal q uotation marks omitted). To be f a i r l y presented in state c ourt, a claim must include: 1) “a statement of the facts that e ntitle the p etitioner to relief,” Gray v. Netherland

, 518 U.S. 152, 162–6 3 (1 9 9 6), and 2) citations “to either a federal or state case involving the leg al standard for a federal constitutional violation,” Castillo

v. McFadden

, 399 F .3d 993, 999 (9th Cir. 2005). “A claim h as not been fairly p resented in state court if new factual alleg ations either fundamentally alter the leg al claim alreadyA N D R E W S V

. D A

V I S 50

considered by the state court s , o r p l ace the case in a sig nificantly different and strong er evidentiary po s t u r e than it was when the state c o u rts considered it.” Dickens

, 740 F .3d
at 1318 (citations and internal quotation marks omitted). Two claims are distinct and must be separately ex hausted if the claims are based on the same facts, but are supported by dis t i n ct constitutional theories. See Gray
, 518 U.S. at 163–65. “[ G] eneral appeals to br oad constitutional principles, such as due p rocess, equal protection, and the rig ht
to a fair t r i a l

, are insufficient to establish ex haustion.” Hiivala v. W

ood

, 195 F .3d 1 0 98, 1106 ( 9th Cir. 1 9 9 9 )

. B ut when claims are “sufficiently related” or “intertwined” so that

r a i s i n g one c learly implies the other, ex hausting one claim will also ex h aust the related claim, so long a s t h e fa ilure to

ex p licitly raise the related claim was not a “strateg ic choice.” Lounsbury v. Thompson

, 374 F .3 d 7 8 5
, 788 (9th Cir. 2 004) (internal q

uotation marks omitted) (holding that e x h austion

o f a procedural challeng e to p e titioner’s competency determination ex hausted a substantive challeng e to the same d e termination, thoug h the two challeng es relied on two distinc t F ifth Amendment theories); see also W ooten v

. Kirkland , 540 F .3d 1019, 1025 (9th Cir. 2008).

The state asserts that there is a distincti o n between the
sort o f Eig hth Amendment claim that Andrews r a ised to the California Supreme Court and in district cour t (sometimes referre d t o as a Lackey claim), a nd the Eig hth A mendment cl a i m b ased on Jones he is raising here, such that the state courts lacked an opportunity to consider it. Specifically

, the
state arg ues that a Lackey claim is an individual ch a l l e n g e, based o n the theory that e x ecuting a prisoner who has spent many y ears on death row violates the prohibition on cruel a nd unusual punishment of that prisoner, while Jones was based

o n t he theory that the California sy stem itself creates t h eA N D R E W S V

. D A

V I S 51

constitutional in f

i r m ity

, because inordinate d elay makes the
sy stem arbitrary and unable to serve a deterrent o r retributive purpose, in violation of the Eig hth Amendment.

W e disag ree. A ndrews’s claim before the state c ourt, the d i strict court, and on appeal here is essentially th e s a m e constitutional claim: that his rig ht to b e free f r o m cruel a

nd unusual punishment u nder the Eig hth Amendment is v iolated by his leng thy incarceration while under a sentence of death. Andrews has not introduced any new facts or e vidence since he raised this arg ument to the state court. A n d r e w s’s supplemental brief points to J o n es ’s conclusion that there a re sy stemic d elay s in imposing the death penalty throug hout the California sy stem, but uses this conclusion t o support his L a ckey claim that “inherent delay in capital cases” r e n d e rs

ex e c utions unconstitutional. A c c ording ly

, Andrews’s references to Jones do not “fundamen t a l l y alter the leg al claim already considered by the stat e courts.” D ickens

, 740 F .3d at 1318 (internal quotation ma r ks omitted). W e therefore conclude that Andrews’s uncertified claim, a s briefed on appeal, is sufficiently r elated and intertwined with Claim 2 6 su c h that A ndrews’s ex haustion of Claim 26 likewise ex hausted h is c urrent challeng e. S e e Lounsbury

, 374 F

. 3d at 788. Moreover, Andrews raised this same claim
to the district court. A c cording ly

, Andrews ex hausted this delay claim and did not waive it.

W e now c onsider Andrews’s motion for a COA for this

c laim. T he district court denied Claim 26 because the st a t e court’s rejection of this claim was not an u n r easonable application of Supreme Court precedent. No reasonable jurist would f ind the district court’s r

uling debatable or wrong

. See S l ack

, 529 U.S. at 484. As we have previously state d

, n o clearly e stablished Supreme Court precedent h o lds thatA N D R E W S V

. D A

V I S 52

inordinate delay in the ex ecution of a ca p i t a l defendant constitutes c r u el and unusual punishment in violation of the Eig hth A mendment. Allen

, 435 F .3d at 958–6 0

. Andrews
arg ues that the state court’s rejecti o n o f h is delay claim is contrary to F

urman , 408 U.S

. a t 3 11–12 (W hite, J
., concurring ), and Gregg
, 428 U.S. at 188 (plurality opinion). Bu t these cases articulate a g e n eral Eig hth Amendmen t standard that the death penalty is unconstitutional if imposed arbitrari l y , o r if the penalty itself does not serve the penolog ical purposes of deterrence and retributi o n. These principles do not “squarely a d d r e s s [ ]” the specific issue raised by A ndrews’s delay claim, and w o u l d require a sig nificant ex tension of the rationale of Furman and Gregg to apply in this particular contex t. See Van Patten
, 552 U.S. at 125–26. T h erefore, the state court’s r ejection of Andrews’s delay claim was not an unreasonable ap p lication of F u rman

or Gregg
, and reasonable jurists would not dispute the district court’s co n clusion to that e ffect. See W oodall

, 134 S. Ct. at 1706–07.

B e cause Andrews has not made a “s u bstantial showing ” that his Ei gh th Amendment rig hts were violated, see 28 U.S.C. § 2253(c)(2), we deny a COA for this claim.

B

W e nex t turn to Andrews’s four uncertified c laims alleg ing that trial counsel were ineffective under S t r i ckland for failing to investig ate and present four cate go r i es o f evidence.

The first claim r elate s to the police’s investig ation o f suspects before Sanders w a s a r rested a nd ag reed to testify pursuant to a plea ag reement. During the investig ation,A N D R E W S V

. D A

V I S 53

police officers took statements from at least nine w itnesses and in f o r mally interviewed many others who provided information about activities in a n d around W h e eler’s apartment in the day s leading u p to the murders. According
to these statements, W h eeler’s d rug customers frequented his apartment, disturbances were a reg ular occurrence, a nd shooting s had occurred in the apartment. The police did not find any corroborating p h y sical o r testimo n ial evidence
sug g esting th a t a n y of these drug customers was the killer. W h en investi ga ting W heeler’s apartment, the police f ound fing erprints of individuals w h o had been seen in the apartment on the evening the murders occurred, but nothing linking them to the c ri m e

. The police arrested one d rug dealer who worked with W heeler, but ultimately released him. W hen interrog ated, this drug dealer d e n i e d murdering W h eeler, but told the p olice t h a t a M ex ican Mafia member had told him that the Mex ican Mafia had murdered W heeler. He did not provide any corroborating evidence to support this story

. Rely ing on this e vidence, Andrews claims that his trial counsel were ineffective f or f ailing to investig ate and present evidence that third parties, such as W heeler’s customers a nd fellow dealers, had the motive and opportunity to c ommit the murders due to their drug -related dealing s with W h e eler. The
stat e c o u r t summarily rejected this claim when it denied Andrews’s second s t a t e habeas petition. The district court denied relief on this claim.

W e c o n c lude that reasonable jurists would not find debatable or wrong the district court’s conclus i o n that this claim fails under Strickland and AEDPA. S e e Slack

, 5 2 9 U

. S. at 484. The e vidence a dduced at trial was overwhelming : Sanders, an ey ewitness, testified to the eventsA N D R E W S V

. D A

V I S 54

of the murders, B r ook s testified reg arding Andrews’s confession, a

n d the evidence established that Andrews’s palm
p r i n t s were found on either side o f B randon’s body

. In r e Andrews

, 5 2 P.3d at 658

. A ccording ly

, reasonable jurists would n ot debate the reasonableness of the state cour t’s conclusion that counsel’s failure to f urther investig ate t h e se suspect s did not prejudice Andrews’s defense. See Strickland , 466 U.S. at 694.

Second, Andrews arg u es that counsel were ineffective for failing to investig ate or present evidence that semen found on B randon’s b ody could not have c ome f rom Andr e w s. The district court’s conclusion that the state court did not unreasonably a p p ly 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 s l ides c ontaining

semen found on B randon’s b ody contai n b iolog ical markers that some people secrete a nd others d o n ot. Andrews does
not secrete these markers, but the reco r d i s silent as to whether B randon was a secretor. And r ews offers statistical evidence su g g esting that B randon was probably not a secretor, but the evidence is n o t c o nclusive. I ndeed, even other ex perts testify ing for Andrews noted that what minimal evidence the y o btained was subject to challeng e

. I n lig ht o f the ey ewitness testim o n y a b o u t Andrews’s involvement in the

m u rders, and his palm prints nex t to B randon’s b o d y , reasonable jurists would not dispute that the s t ate court reasonably concluded that any deficiency by defense counsel was not prejudicial.

Nex t, Andrews raises two claim s r elating to the police investig ation of fing erprint evidence f ound at W heeler’s apartment. As ex plained b y the state court on direct appeal,A N D R E W S V

. D A

V I S 55

two of the police’s fing erprint e x perts, Howard Sanshuck a nd Donald Keir, testified at trial that they compared 50 fing erprints found in W heeler’s apartment with Andrews’s fing erprints and p alm prints. People v. Andrews

, 776 P.2d at 2 8 9

. The two ex perts concluded that left and rig ht p a l m p rints on the kitchen floor on e ither side of B rando n ’ s b o d y belong ed to A ndrews. I d

. Sanshuck’s supervisor, J immy Cassel

, h a d previously reviewed the prints and initially label ed them as belong ing to W h eeler. Id

. Sanshuck discovered the error shortly before Andrews’s first trial. At
t h e s econd tria l

, C a s s e l s t a t e d t h a t t h e o r i gi n al misidentification was due to his efforts t o p r o ce ss the crime

scene information too q

uickly

, and testified that there was no similarity between the palm p rints found on the kitchen floor and W heeler’s prints. Id

. The three ex perts, Sanshuck, Keir,

an d Cassel, all testified at the second trial that Andrews’s palm prints matched the palm prints f ound on either side o f B randon’s body

. Id

. Andrews has never adduced any evidence to rebut this.

On appeal, Andrews claims that his coun s el were deficient in failing to investig ate t w o d ifferent lines o f defense. F irst, Andr ews claims that counsel performed deficiently by failing to p resent evidence t hat Andrews’s fing erprints could have been left in W heeler’s apartment d ue to his prior visits. Second, Andrews claims that counsel should h ave uncovered a n d used the police’s orig inal misidentification of h is palm prints. Andrews points to other reports in t h e r e c o rd which he claims shows that Keir and a third an a ly st, William L eo, also misidentified his fing erprints. The district court r e

j e c ted this claim. I n lig ht of the unrebutted evidence that the palm prints found o n either side of B randon’s body were Andrews’s prints, n o reasonable jurist would dispute the district court’s determination that theA N D R E W S V

. D A

V I S 56

s t a t e court could reasonably have concluded that counsel’ s handling of the fing erprint evidence d i d not prejudice Andrews’s defense. See Strickland , 466 U.S. at 694.

F inally

, Andrews claims that counsel were ineffective for failing to investig ate or present evidence reg arding his al i b i the nig ht of the murder. The record shows that Andrews g ave

a defense invest i ga t or the names o f two alibi witnesses a nd information on how to locate th em, but Andrews did not provide a ny affidavits f

rom these witnesses to the state court,

or any further information about the nature of their testimony

. The state court and district court rejected this claim. I n lig ht of th e d e t ailed testimony from Sanders and B rooks, the evidence o f Andrews’s palm prints on either side o f B randon’s b ody

, and the lack of any e videnc e r e ga r ding the al i b i wi tnesses, n o reasonable jurist would dispute that the

s tate court r easonably applied Strickland in concluding t h at counsel’s failure to further investig ate these witne sses was not prejudicial.

Andrews relies o n United States v. Valenzuela–Bernal for th e p roposition that he could establish his ineffective assistance of counsel claim without showing how his alibi witnesses would have testified, because he needed only show their testimony would be material a n d fa v orable to his defense. 458 U.S. 8 58
, 8 6 7 ( 1982). Therefore, Andrews claims, the state court erred in rejecting his Strickland c laim. The distri c t court r ejected this arg ument, and we ag ree. Valenzuela

- Bernal held that when the g o v ernment d eports aliens who could aid a criminal defendant in his d e f e n se, there is no violation of th e c riminal defendant’s rig ht to compulsory process u nder the Six th Amendment unless the defendant “make[ s] some plausible showing of how [ the alibi witness’s] testimony would have been both ma t er i al a ndA N D R E W S V

. D A

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favorable to his defense.” Id. This ruling does not “squarely address[ ] the issue,” Van Patten
, 552 U.S. at 125–26, o r “establish a leg al pri n ci p l e that clearly ex tends” to the question whether Andrews’s counsel’s failure to pursue the alibi w itnesses was ineffective assistance of counsel

, s ee Moses
, 5 55 F .3d at 754 (quoting V a n Patten
, 552 U.S. at 123) (alterations and int e r n a l q u o t a t i o n marks omitted). According ly

, the state court’s rejection of Andrews’s claim

was not an unreasonable appl i c ation of Valenzuela-Bernal. See W oodall , 134 S. Ct. at 1706–07.

I n sum, the state court did not u n r e a s onably a pply Stric k l a n d in concluding that Andrews did not create a “substantial, not just conce i v a ble” likelihood of a different result, o r that “any real p ossibility of [ A n d r e w s ’s] being acquitted was eclipsed by the remaining evidence pointing to g uilt,” R ichter

, 562 U.S. at 1 12–13; s ee also Strickland

, 466 U.S. at 695–96, and the district c o urt’s determination to this effect was not debatable. According ly

, Andrews has not made a “substantial showing of the denial of a constitutional rig ht,” 2 8 U.S.C. § 2253(c)(2), and we d e cline to issue a COA.

C

Andrews arg ues that the state court e rred in rejecting two claims t h at his rig hts under Brady were violated. Brady requires the state to disclose “evidence that is both favorable
to the accused and material either to g uilt or to punishment.” U.S. v. Bagley , 473 U.S. 667, 674 (1985) (internal quotation marks o mitted). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the r esult o f t h e proceeding would have been different.” Id. at 682. T hus, to establish a Brady violation, aA N D R E W S V

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defendant must prove: 1) “[ t] h e e v i dence at issue [ is] favorable to the accused, eith e r b e c a use it is ex c ulpatory

, o r because it is impeach i n g, ” 2 ) t h e evidence was “suppressed

. . . eithe r w i l lfully or inadvertently ,” a nd 3) prejudice resulted, meaning there is a reasonable probability that disclosing the e vidence to the defense would have chang ed the r e s u l t

. See Strickler v. Greene
, 5 27 U.S. 263, 281–82 (1999); Bagley

, 473 U.S. at 682.

A n d rews c laims the state suppressed two pieces o f evidence. F irst, he c o n ten d s t h at the p rosecution failed to disclose a c ase file maintained by the L os Ang eles Police Department, termed a “murder book,” which conta i n ed material evidence including the third party c ulpability and fing erprint evidenc e also advanced in support of his ineffective a ssistance of counsel claims. T h e state court could reasonably h a v e rejected this claim becaus e the state h ad provided counsel with a chronolog y of the police investig ation referring to much of the all eg edly suppressed murder book evidence. T he d istrict c ourt h e l d the state court’s conclusion was n ot an unreasonab le application o f Brady

. No reasonable jurist c o u ld disag ree with this conclusion, because the state court could r e a s o nably have concluded that the evidence was not suppressed under Brady

. See United States v. D upuy , 760 F .2d 1492, 1501 n.5 ( 9th Cir. 1985 ) ( h olding the g o vernment does not suppress evidence for purposes of Brady where “ t h e means of obtaining the

ex c u lpatory evidence [ was] pr o v ided to the defense”). Moreover, the state court could have reasonably c o n c l uded that the result of the proceeding w ould not hav e been different even if t h e e vidence had been disclosed to the defense. S

ee Strickler , 527 U.S. at 280.A N D R E W S V

. D A

V I S 59

F or the same reason, no reasonable jurist c o u l d disag r ee with the district court’s rejection of A ndrews’s second Brady claim, that the prosecution withheld the fact that B rooks was subject to charg es of welfar e f raud. The state court could have reasonably concluded t h at defense counsel h ad sufficient information to discover that charg es had been filed, because d e fense counsel knew that B rooks was being investig ated for w elfare fraud, and questioned her about it at trial, outside the presence of the jury

. S ee Dupuy
, 760 F .2d at 1501 n.5.

Andrews also raises claims under Napue
, which provides that the state may not “knowing ly use false evidence, i n c l u ding false testimony ” or “allow[ ] it to g o uncorrect e d when it a ppears.” 3 60 U.S. at 269. According to Andrews, the state knowing ly adduced fa l se testimony from two fing erprint ex perts, Keir and Sanshuck. F irst, Andrews notes that a rep o r t in the record, dated Aug ust 4, 1980, states that Keir r eviewed “fing ers” from a suspect named “ W alters” (the alias being used by Andrews at the time) and concludes that the prints were “not made.” This means, Andr ews a rg u es, that Keir lied i n i d e ntify ing the palm prints found b y B randon’s b ody as being from A ndrews, and also lied when he testified that he first ex amined Andrews’s palm prints in November 1983. The state asserts Keir did not testify falsely

, because the report r eferences fing erprints, while Keir testified
reg arding p alm prints. S e c o nd, Andrews arg ues that Sanshuck’s testimony that police p olicy d id not require photog raphs to be taken of prints on the surface from which they were lifted was false, because it contradict e d a L os Ang eles Police Department Homicide Manual, dated 1981. 1 9

19 T h e L os A n g eles P o l ice Dep artm en t Ho m icid e Man u al states in
p ertin en t p art:A N D R E W S V

. D A

V I S 60

The state arg ues that n o false informatio n was knowing ly presented, see id.

, because the h o m icide manual used permissive, not mandatory

, lang uag e, and b e c a u s e the manual’s statement d id not reflect the police departme n t’s actual practi c e , which was the subject of Sanshuck’s testimony

. The district court r ejected Andrews’s Napue claims, and n o reasonable jurist could disag ree that the state court c ould reject these claims based on the r easonable view of the facts offered by the s t a t e. See Taylor v. Maddox

, 366 F .3d 992, 999–1000 (9th Cir. 2004) (holding that under AEDPA, state court fact findin g m ust be not merely wrong , but “actually unreasonable” a nd without support in the record to warrant habeas relief).

D

Andrews makes three c laims b ased on the fact that between 1993 and 1995, all biolog ical evidence in this case

was destroy ed, ex cept for 50 fing erprint c a r d s, one vag inal slide, one oral slide, and one anal slide. His petition to the California Supreme Court claimed that the destruction of the evidence v iolated his due process rig hts under Trombetta a nd Arizona v. Y

oungblood

, a case that held that the g overnment’s “failure to preser

v e potentially u seful evidence” before trial does not violate a d e fendant’s due process rig hts unless the criminal defendant c a

n show that the g overnment acted in b ad faith. 4 88 U .S. 51, 58 (1988). A s Andrews ac k n o w l e d g es,

No te: (A ) P h o to g rap h in g P rin ts

P rin ts f o u n d at th e scen e o f a h o m i cid e sh ou ld b e p h o to g rap h ed

. T h e p ro ced u re is reco m m en d ed b ec a

u s e it is m u ch easier to in tro d u ce p rin t ev id en ce in to co u rt if th e p rin t h as b een p h o to g rap h ed

, as p arts o f th e o b j ect

w h ich carried th e p rin t m ay sh o w in th e p ictu re.A N D R E W S V

. D A

V I S 61

t h e S upreme Court has since h eld that cases assessing pre

conviction access to evidence, w h i c h would include Trombetta and Y

ou ngblood

, do not apply to cases where a defendant is denied a ccess to evidence a fter being convicted. See D i s t

. Attorney’s Office for the Third Judicial District v

. Osborne

, 557 U.S. 52, 61–62, 68– 6 9
, 7 4 (2009); see also Cress v. P a l m er , 4 84 F .3d 844, 853 (6th Cir. 2 007) (observing that “the Supreme Court has not clearly established that post-conviction destruction [ of evidence] is

a due process violation”). Therefore, the California Supreme Court did not unreasonably a pply Trombetta or Y

oungblood

. Andrews relies on Osborne to make a second claim, that the d e s truction of evidence violated his due process and Eig hth Amendment r ig hts. W e d o not consider whether the state court’s decision was c o ntrary to or an unreasonable application o f Osborne

, becaus e i t w as decided after the California Supreme Court ruled, and thus is not clearly established precedent for purposes of § 2254(d)(1). This theory was not briefed to the d istrict court, as the c a s e was d e cided between completion of briefing and the court’s decision. Andrews points to no clearly established p recedent in ex istence at the time the state court ruled that applies this principle, and therefore the d i s t r i c t court’s rejection of this claim was not debatable among fair minded jurists.

Andrews’s third c laim is that the destruction of evidence denied him access to the c o u rts t o v i ndicate a n underly ing claim o f factua l innocence. H owever, as the district court recog niz ed in rejecting this claim, he cites no Supreme Court precedent c learly establishing that destruction of evidence after a defendant is convicted violates a rig ht of access to the
courts. Christopher v. Harbury

, on which Andrews relies, is

n o t on point: it held that a plaintiff’s claim that g overnmen t officials misled her in connec t i o n with her husband’sA N D R E W S V

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disappearance did not state a constitutional denial of a cc e s s claim upon which r elief could be g r anted. 536 U.S. 4 03, 407, 415, 4 1 8–19 (2002). According ly

, no reasonable jurist could dispute that the district court correctly denied this claim.

E

I n lig ht o f t he above, we conclude that no reasonable jurist would disag ree with the district court in r e j ecting Andrews’s cumulative error claim. “[ T] h e fundamental question in determining w hether the combined effect of trial

errors violated a defendant’s d ue process rig hts is whether the

errors rendered the criminal defense ‘far less persuasive,’ a nd thereby h ad a ‘substantial an d injurious effect or influence’

on the jury ’s verdict.” Parle v

. Runnels

, 505 F .3d 922, 928 (9th Cir. 2007) (citation o m i t t e d ) (quoting Chambers v

. M i s sissippi
, 410 U.S. 284, 294 (1973) and Brecht v. Abrahamson

, 507 U.S. 619, 637 (1993)). W e ag ree with the district court that the California Supreme C o urt reasonably determined that any errors, in the ag gr e ga t e , d id not have such a substantial or injurious effe ct on the verdict. The cumulative result of the disputable errors identified b y Andrews would not have made his defense sig nificantly more persuasive, since his defens e f o cused on attacking the

cr e d i bility of Sanders and B rooks and challeng ing the fing erprint and palm print evidence. Reasonable jurists would not dispute the d istrict c ourt’s conclusion, so no COA is warranted.

Nor would any reasonable jurist disag ree 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 t hat Andrews’s introduction o f slides showing that biolog ical markers found in the semen onA N D R E W S V

. D A

V I S 63

B randon’s body had n ot been secreted by Andrews and may
not have bee n secreted b y B r andon, described above, was insufficient to “g o b ey ond demonstrating doubt about his
g uilt [ to] affirmatively p r ove that h e is probably innocent.” See Carriger v. S

tewart , 132 F .3d 463, 476 (9th Cir. 1 9 9 7 ) (en banc) ( observing that t he standard for establishing a freestanding c laim o f actual innocence is “‘ex traordinarily hig h,’ and that the showing [ for a successful clai m ] would have to be ‘truly persuasive.’” (quoting Herrera
, 506 U.S. at 417) (O’Connor, J
., c oncurring ) ). This claim does not merit a COA.

I n sum, beca u se the district court’s conclusions, under AEDPA review, are not d ebatable among reasonable jurists, Andrews fails to make the “ substantial showing of the denial of a constitutional rig ht” required for a COA to issue, and we deny h is request for one as to each of his uncertified claims.

V

Andrews contends that the district court e rred in deny ing his motion for an e videntiary hearin g o n 16 c laims (Claims 1–8, 15, 19–23, 2 5, and 32), which include all but o ne of the claims on appeal here. 2 0 W e review a district court’s denial of an evi dentiary hearing for an abuse of discretion, Sully v

. Ayers
, 725 F .3d 1 057, 1067 (9th Cir. 2013), and “may affirm the dis t r ict court’s decision on a ny g round supported b y the record, even if it differs from th e d i s trict court’s rationale,” id

. (internal q

uotation marks omitted). I n Pinholster

, the Supreme Court stated that “review under § 2 2 5 4 ( d )(1) is

2 0 He d id n o t seek an ev id en tiary h earin g o n Claim 2 6
, w h ich raised th e arg u m en t t

h at it w o u ld v io late th e Eig h th A m en d m en t to ex ecu t e h im af ter a lo n g d elay

.A N D R E W S V

. D A

V I S 64

l i mited to the record that was before the state court tha t adjudicated the claim o n the merits.” 131 S. Ct. at 1398. “[ A] n evidentiary hearing is pointless once the district court has determined that § 2254(d) precludes habeas relief.” Sully

, 725 F .3d at 1075; see Pi n h o l s t e r , 131 S. Ct. at 1 411 n.20 (“B ecause Pinholster has failed t o demonstrate that the adjudication of his claim based on the state-court record resulted in a decision ‘ contrary to’ or ‘ i n v o l v [ ing ] an unreasonable a

pplication’ of federal law, a writ o f h a beas

c o r p us ‘ shall not be g ranted’ and our analy sis is at an e n d

. ” (alteration in orig inal)). Accordin gly

, the district court did
not err in deny ing Andrews’s motion for an e videntia r y hearing

.

I n lig ht o f the foreg o ing

, we REVERSE the district court’s g r ant of relief, D I S M I S S the Eig hth A mendment lethal injection claim as u nripe, and DENY the petition for a COA of the uncertified claims.

REVERSED in part, DISMISSED in part, a nd P ETITION DENIED in part.