FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE JAMES ANDREWS,

Petitioner-Appellant,

v.

RON DAVIS, Acting Warden,

Respondent-Appellee.

No. 09-99012

D.C. No.

2:02-CV-08969-R

JESSE JAMES ANDREWS,

Petitioner-Appellee,

v.

RON DAVIS, Acting Warden,

Respondent-Appellant.

No. 09-99013

D.C. No.

2:02-CV-08969-R

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

January 12, 2015—Pasadena, California

Filed August 5, 2015
2 ANDREWS V. DAVIS

Before: Sandra S. Ikuta, N. Randy Smith,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Habeas Corpus/Death Penalty

The panel dismissed as unripe the sole claim certified by

the district court for appeal, denied a motion to expand the

certificate of appealability, and reversed the district court’s

grant of relief on an ineffective assistance of counsel claim in

a case in which Jesse James Andrews challenges his

conviction and capital sentence for three murders.

The panel reversed the district court’s grant of relief on

Andrews’s claim that he was prejudiced by his counsel’s

failure to investigate and present additional mitigating

evidence at the penalty phase of his trial, because, under

28 U.S.C. § 2254(d)(1), the California Supreme Court did not

unreasonably apply Supreme Court precedent in concluding

that Andrews was not prejudiced by any deficient

performance.

Because California has no lethal injection protocol

currently in place, the panel dismissed as unripe Andrews’s

certified claim that California’s use of its lethal injection

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ANDREWS V. DAVIS 3

protocol to execute him would violate his Eighth Amendment

rights.

The panel denied Andrews’s request to certify for appeal

his uncertified claims of unconstitutional delay between

sentencing and execution, ineffective assistance of counsel,

failure to disclose material exculpatory evidence and false

testimony, and destruction of evidence. 

The panel held that the district court did not abuse its

discretion in denying Andrews’s motion for an evidentiary

hearing. 

COUNSEL

Michael Burt (argued), Law Office of Michael Burt, San

Francisco, California, for Petitioner-Appellant/CrossAppellee.

Xiomara Costello (argued), Supervising Deputy Attorney

General, Kamala D. Harris, Attorney General of California,

Dane R. Gillette, Chief Assistant Attorney General, Lance E.

Winters, Senior Assistant AttorneyGeneral, Keith H. Borjon,

Supervising Deputy Attorney General, A. Scott Hayward,

Deputy Attorney General, Sarah J. Farhat, Deputy Attorney

General, Shira Seigle Markovich, Deputy Attorney General,

Edward C. DuMont, Solicitor General, Gerald A. Engler,

Chief Assistant Attorney General, Michael J. Mongan,

Deputy Solicitor General, James William Bilderback II,

Supervising Deputy Attorney General, Los Angeles,

California, for Respondent-Appellee/Cross-Appellant.
4 ANDREWS V. DAVIS

OPINION

IKUTA, Circuit Judge:

Jesse James Andrews appeals from the district court’s

denial of all but one of the claims raised in his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. The state

cross-appeals the district court’s grant of relief on Andrews’s

claim that his counsel’s assistance was ineffective at the

penalty phase of his capital murder trial. We dismiss as

unripe the claim the district court certified for appeal, and

deny Andrews’s motion to expand the certificate of

appealability to include uncertified claims. We reverse its

grant of relief on the ineffective assistance claim because,

under 28 U.S.C. § 2254(d)(1), the California Supreme Court

did not unreasonably apply Supreme Court precedent in

concluding that Andrews was not prejudiced by any deficient

performance by his counsel.

I

A

On December 9, 1979, police were called to a Los

Angeles apartment, where they found the bodies of three

murder victims. People v. Andrews, 776 P.2d 285, 288 (Cal.

1989). The murder victims were Preston Wheeler, who lived

in the apartment, Patrice Brandon, and Ronald Chism. Id. 

The California Supreme Court described the murder scene as

follows:

Wheeler had been stabbed in the chest six

times and shot in the neck at close range with

either a .32– or .357– caliber weapon. His
ANDREWS V. DAVIS 5

face and head were bruised, and his face had

been slashed with a knife. Brandon and

Chism had been strangled with wire coat

hangers. Their faces were bruised, Chism’s

extensively. Brandon’s anus was extremely

dilated, bruised, reddened and torn, consistent

with the insertion of a penis shortly before her

death. There was also redness around the

opening of her vagina, and vaginal samples

revealed the presence of semen and

spermatozoa. All three victims were bound

hand and foot.

Id.

Approximately a year later, police arrested Charles

Sanders in connection with the murders. Id. Sanders entered

into a plea agreement, in which he pleaded guilty to three

counts of second degree murder, admitted a gun

enhancement, and agreed to cooperate with the prosecution,

in exchange for a sentence of 17 years to life in prison. Id. 

During his interrogation by the police, Sanders gave both a

tape-recorded and a written statement. Id. He also testified

at Andrews’s trial, and described the crime as follows:

Sanders testified that he and [Andrews]

devised a plan to rob Wheeler, a drug dealer. 

[Andrews] armed himself with a .357

magnum and gave Sanders a .38–or

.32–caliber automatic. On the evening of the

murders, they visited their friend, Carol

Brooks, who lived in the same apartment

building as Wheeler, and then went to

Wheeler’s apartment. In response to their
6 ANDREWS V. DAVIS

knocking, Wheeler, who apparently knew

[Andrews], let them in. Also inside the

apartment was a woman (Patrice Brandon). 

After smoking some marijuana with Wheeler,

[Andrews] and Sanders drew their guns. 

Sanders tied Wheeler and Brandon with belts

and socks, put on a pair of gloves, and began

to search the apartment for drugs and money. 

Except for some powder on a saucer which

appeared to be cocaine, the search was

unsuccessful. [Andrews] questionedWheeler,

who denied having any drugs or money. 

Saying he would make Brandon talk,

[Andrews] dragged her into the kitchen and

closed the door. Sanders remained in the

living room with Wheeler.

Sanders heard [Andrews] hittingBrandon and

later heard sounds as though they were having

sex. When [Andrews] came out of the kitchen

shortly thereafter, Sanders saw Brandon’s

pants around her ankles.

[Andrews] put his gun in Wheeler’s mouth. 

He threatened to kill Wheeler and Brandon

unless Wheeler revealed the location of the

drugs. Wheeler said the ‘dope’ was in the

attic, and pointed out a trap door leading up to

it. Sanders climbed into the attic. While in

the attic, Sanders heard two shots. When he

came down, [Andrews] told him he had shot

Wheeler because the latter had tried to jump

out the window. Sanders asked if Wheeler

was dead. [Andrews] responded he was
ANDREWS V. DAVIS 7

‘standing right up’ on Wheeler when he fired

the gun . . . . When Sanders asked about

Brandon, [Andrews] replied he had killed her

before leaving the kitchen.

While [Andrews] and Sanders were cleaning

up the apartment, Ronald Chism knocked on

the door and asked if everything was all right. 

[Andrews] said Wheeler was home and

invited him inside. [Andrews] then hit Chism

on the head, tied him up, and took him into

the bathroom. Sanders saw [Andrews] sitting

astride Chism’s back, joining and separating

his clenched fists in a tugging motion,

apparently strangling Chism. Sanders then

saw [Andrews] go into the kitchen and choke

Brandon with a wire clothes hanger. When

the two left the apartment, [Andrews] gave

Sanders some money, saying it was all he had

found.

In re Andrews, 52 P.3d 656, 658 (Cal. 2002) (alterations,

citations, and internal quotation marks omitted). Andrews

was eventually arrested, and he was charged in June 1982.

At trial, the jury heard Sanders’s testimony as well as the

testimony of Carol Brooks. Brooks confirmed that Andrews

and Sanders visited her on the night of the murders and told

her about their plan to “get some money” from Wheeler. 

People v. Andrews, 776 P.2d at 289. A week after the

incident, Sanders told her about his involvement in the

murders. Id. Then, a few weeks later, Andrews confessed to

her that he shot Wheeler, had sex with Brandon, and took

$300 during the robbery. Id.
8 ANDREWS V. DAVIS

The prosecution also presented fingerprint evidence. Id. 

Police experts analyzed 50 prints lifted from the apartment;

three prints belonged to Andrews. Id. One fingerprint was

found on a coffee table in Wheeler’s living room. Id. Two

palm prints were found on the kitchen floor, on either side of

the spot where Brandon’s body was found, the left palm print

being about a foot from her body.

The defense primarily focused on undermining Sanders’s

credibility. Id. Two jail inmates who had been incarcerated

with Sanders testified. Id. They stated that, while Sanders

was incarcerated with them, he made statements suggesting

he planned to lie about the murders to shift blame onto

Andrews and away from himself. Id.

The jury deliberated for three days before finding

Andrews guilty of murder.1 The jury also found three special

circumstances to be true. Two special circumstances related

to the offense conduct: (1) multiple murder and robbery

murder, based on the murders of Wheeler, Brandon, and

Chism, and the robbery of Wheeler, and 2) rape-murder,

based on the rape and murder of Brandon. In re Andrews,

52 P.3d at 659. The third special circumstance was

Andrews’s conviction for murder of a grocery store clerk in

1967. Id.

Both the prosecutor and defense counsel made brief

presentations at the penalty phase. The prosecutor presented

evidence through a joint stipulation. Id. He noted that the

jury had already found that Andrews had been convicted of

murder in 1967. The parties also stipulated that Andrews had

1 Andrews was convicted after his second trial, because the jury failed

to reach a verdict in the first trial.
ANDREWS V. DAVIS 9

been convicted of armed robbery in May 1968, that he had

been convicted of escape in November 1969, and that he had

been convicted of robbery in June 1977. Id. The stipulation

did not describe the facts of the offenses underlying these

additional convictions. The prosecution also submitted

photographs of the dead bodies of Patrice Brandon and

Ronald Chism as they were found by the police in the

apartment; the photos had been excluded at the guilt phase on

the ground they were unduly inflammatory. Id. Finally, the

parties stipulated that Andrews’s birth date was July 2, 1950. 

Id.

The defense evidence consisted of two sworn statements

that were read to the jury. Id. The statements described facts

underlying the incident in September 1966 that formed the

basis of Andrews’s 1967 conviction for murder. According

to the statements, Andrews and a 17-year-old companion,

both of whom were armed, attempted to rob a grocery store,

and the companion fired three shots, killing the grocery store

clerk. Id.

In his closing argument, defense counsel focused on

mitigating circumstances. He argued that Andrews’s crimes

were unsophisticated, occurred several years apart, and all

involved the unexpected escalation of a planned robbery. Id. 

He pointed out that Andrews was only 15 years old at the

time of the murder of the grocery store clerk, and was not the

shooter. Id. He portrayed Andrews’s conduct as less

blameworthy because the murders occurred while Andrews,

Sanders, Wheeler, and Brandon were under the influence of

illegal drugs. Id. at 659–60. Finally, he emphasized that

other murderers had received life without the possibility of

parole despite the jury’s finding of special circumstances, and

despite more blameworthy conduct. Id. at 659. He pointed
10 ANDREWS V. DAVIS

out that in this very case, Sanders received a sentence of only

17 years to life. Id. at 660. The prosecution made no

rebuttal.

After one day of deliberations, the jury returned a verdict

imposing the death penalty for each of the three murder

counts. The court sentenced Andrews to death on the three

counts on June 8, 1984. The California Supreme Court

affirmed the conviction and sentence on direct appeal on

August 3, 1989. People v. Andrews, 776 P.2d at 285, 288.

B

Andrews filed petitions for state post-conviction relief,

claiming, among other things, that his counsel’s assistance

was ineffective at the penalty phase because counsel did not

adequately investigate and present mitigating evidence. The

California Supreme Court summarilydenied all of Andrews’s

claims, except for his penalty phase ineffective assistance of

counsel claim.

The California Supreme Court appointed a referee to take

evidence and make factual findings on six questions related

to Andrews’s penalty phase ineffective assistance of counsel

claim. In re Andrews, 52 P.3d at 659. Two of the six

questions are relevant to the question of whether Andrews

was prejudiced by his counsel’s allegedly ineffective

assistance: “1. What mitigating character and background

evidence could have been, but was not, presented by

[Andrews]’s trial attorneys at his penalty trial?” id. at 660,

and “5. What evidence, damaging to [Andrews], but not

presented by the prosecution at the guilt or penalty trials,

would likely have been presented in rebuttal, if [Andrews]

had introduced any such mitigating character and background
ANDREWS V. DAVIS 11

evidence?” id. at 664.2 The referee received the testimony of

over 50 witnesses, which took place over the span of six

years, id. at 660, and issued a lengthy written report of her

findings.

The California Supreme Court denied Andrews’s penalty

phase ineffective assistance of counsel claim in a lengthy

opinion. Id. at 656–76. In its opinion, the court summarized

the referee’s findings. In response to the first question, the

referee identified three broad categories of mitigating

evidence that were available but not presented to the jury:

Andrews’s family background; the conditions of his

confinement in a juvenile reform school and in the Alabama

prison system; and his mental health. Id. at 660. As

summarized in the court’s opinion, the referee’s report

included the following information regarding Andrews’s

 

2

 The other four questions were:

2. What investigative steps by trial counsel, if any,

would have led to each such item of information?

3. What investigative steps, if any, did trial counsel take

in an effort to gather mitigating evidence to be

presented at the penalty phase?

4. What tactical or financial constraints, if any, weighed

against the investigation or presentation of mitigating

character and background evidence at the penalty

phase? . . .

6. Did [Andrews] himself request that either the

investigation or the presentation of mitigating evidence

at the penalty phase be curtailed in any manner? If so,

what specifically did [Andrews] request?

In re Andrews, 52 P.3d at 659.
12 ANDREWS V. DAVIS

background. When he was very young, Andrews’s alcoholic

parents separated, and his mother left him to be raised by his

grandparents and aunt, in a large family home with his

siblings and cousins, located in a poor, segregated

neighborhood of Mobile, Alabama. Id. The referee described

Andrews’s grandfather as “loving, benevolent, and

responsible,” id., and the court added that Andrews’s mother

regularly sent money and clothing to her children and that

Andrews’s upbringing and early family life were “relatively

stable and without serious privation or abuse,” id. at 670. 

When Andrews was around nine or ten, his mother returned

home to stay. Id. at 660, 670. She had children by another

marriage, of whom Andrews was jealous. Id. at 660. Around

that time Andrews’s grandfather, a “pivotal figure” in his life,

died. Id. (internal quotation marks omitted). Andrews

became withdrawn, skipped school, and at age 14, committed

car theft and was sent to a reform school known as Mt.

Meigs, formally the Alabama Industrial School for Negro

Children. Id.

The conditions at Mt. Meigs, described succinctly by the

state court as “appalling,” included “beatings, brutality,

inadequate conditions and sexual predators.” Id. at 660–61

(internal quotation marks omitted). According to the

referee’s report, one witness described it as “a farming

operation and a penal colony for children,” while others

described “inhuman conditions, inadequate food and clothing

and severe beatings,” with “sticks, broom handles, tree limbs,

and hoe handles . . . or fan belts.” Andrews was released at

age 16. Id. at 661.

Within three months of his release, in September 1966, he

and a companion were involved in the attempted robbery and

murder of the grocery store clerk that became one of the three
ANDREWS V. DAVIS 13

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

re Andrews, 52 P.3d at 661. The evidence showed that when

Andrews and his companion were fleeing the scene in a taxi,

they robbed the taxi driver at gunpoint. In re Andrews, 52

P.3d at 661. The taxi driver testified he heard Andrews say

“[l]et’s shoot him.” Id. at 665 (internal quotation marks

omitted). Andrews then fired at least two shots at the taxi

driver. Id. In 1967, Andrews was convicted of murder based

on the grocery store incident, and in 1968, he was convicted

of armed robbery of the taxi driver. Id. at 661 n.4. Just

before he turned 18, he was committed to Alabama state

prison. Id. at 661.

Summarizing the referee’s findings about conditions in

the four different prisons in which Andrews was confined

over ten years, the California Supreme Court stated:

[The referee] described conditions in these

institutions as abysmal, characterized by

severe overcrowding, racial segregation,

substandard facilities, no separation of the

tougher inmates from younger or smaller

inmates, constant violence, the persistent

threat of sexual assaults and the constant

presence of sexual pressure, the availability

and necessity of weapons by all inmates, and

degrading conditions in disciplinary modules. 

[Andrews] not only received beatings but was

also personally subjected to sexual assaults.

Id. (internal quotation marks omitted).

The court also noted that Andrews had been involved in

prison violence, including “the stabbings of two inmates who
14 ANDREWS V. DAVIS

had been threatening him.” Id. (internal quotation marks

omitted). However, Andrews “was rarely the instigator of

violence,” was “the prey rather than the predator” when he

was involved, and was often a target of violence due to his

small stature. Id. at 662 (internal quotation marks omitted). 

He also “appeared to adjust well when the structure permitted

and . . . would continue to do so” and, “when circumstances

permitted, he tended to hold positions of responsibility.” Id.

After his release from prison in 1976, Andrews engaged

in an attempted robbery of a laundry. Id. at 661. In this

incident:

Mobile Police Officer Pettis testified that on

March 23, 1977, he responded to a robbery

call. Entering the store from which the call

came, he and other officers saw [Andrews]

holding a crying young woman hostage with

a cocked gun at her head. He told the officers

to leave and “continued to repeat, ‘Someone’s

going to get shot, I’m going to shoot.’” The

officers withdrew. Ultimately, [Andrews]

surrendered to the officers after releasing the

young woman and another woman whom he

had also held hostage.

Id. at 665. Andrews was arrested for the robbery, but escaped

from jail and fled to California. Id. at 661.

In California, Andrews met Debra Pickett, with whom he

had a stable relationship. Id. The couple had a child, and

Andrews held a job during this time. Id. But Andrews

resumed using cocaine, left his job and family, and then

committed the three murders at issue here. Id.
ANDREWS V. DAVIS 15

The referee also described the testimony from mental

health experts that could have been presented at the penalty

phase. Summarizing the referee’s report, the California

Supreme Court noted that the experts diagnosed Andrews

with a range of mental disorders, including attention deficit

disorder, post traumatic stress disorder (PTSD), and mild to

moderate organic brain impairment, in part due to drug use

and possibly due to a head injury in prison. Id. The experts

opined that Andrews’s learning disability, the adverse

circumstances of his childhood, the impact of the correctional

systems, and the PTSD made his commission of the murders

and sexual assault more understandable and less morally

culpable. Id. at 661–62. The experts gave specific examples

of how Andrews’s impairments and the brutal conditions of

incarceration made it difficult for him to avoid getting into

trouble with the law. Id. at 661–62, 670. For example, one

psychiatrist testified that one of the victims had hurled an

insulting slur at Andrews a few days before the murders, and

Andrews’s PTSD would predispose him to overreact to the

slur, which contributed to the expert’s conclusion that

Andrews was “under the influence of extreme mental or

emotional distress” when he committed the murders.

In addressing the question whether the prosecutor would

have introduced evidence damaging to Andrews in rebuttal,

the referee found that the prosecution’s rebuttal presentation

could have included evidence about two of Andrews’s prior

convictions.3Id. at 664–65. First, during the penalty phase

3 Andrews argued that the prosecutor testified he would not have put on

additional evidence, but the California Supreme Court rejected this

argument, finding that presentation of the mitigating evidence would have

prompted the prosecutor to shift the focus of his penalty phase case, put
16 ANDREWS V. DAVIS

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

circumstance finding, that Andrews had been convicted of

murder in 1967 for his involvement in the grocery store

robbery-murder in 1966. It 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 evidence that

Andrews shot at the driver of the get-away taxi, which could

have been introduced as aggravating evidence. Id. at 659,

664. The prosecution could have introduced that evidence to

show Andrews’s greater moral culpability for the incident. 

Id. at 664. Second, the prosecution could have informed the

jury about Andrews’s attempt to rob a laundry business

following his release from prison in 1976, which involved

holding two women hostage, one with a gun to her head. Id.

at 661, 665.

Further, the referee determined that the prosecution could

have called its own mental health experts to rebut Andrews’s

evidence. Id. at 665. The state could have presented expert

testimony that Andrews did not suffer from PTSD, but rather

suffered from antisocial personality disorder, resented

authority, and had a normal-range IQ of 93. Id. A second

expert would have testified that Andrews’s ability to hold a

job and maintain a stable relationship with Debra Pickett

before he committed the murders indicated he did not suffer

from brain damage, and the planning and thought that went

into the murders made it unlikely that he was under the

influence of drugs at the time. Id.

After recounting the referee’s findings on these questions

as well as the other four questions, and resolving objections

on additional witnesses, and use cross-examination and closing argument

to further damage Andrews’s mitigation case. Id. at 665–66.
ANDREWS V. DAVIS 17

to the referee’s report, the California Supreme Court turned

to its analysis of Andrews’s ineffective assistance of counsel

claim. Id. at 667. It held that Andrews’s counsel’s

performance was not deficient during the penalty phase of the

trial because Andrews’s counsel made a reasonable

investigation, under then-existing professional norms and

Supreme Court precedent, and counsel also made a

reasonable decision not to conduct additional investigation. 

Id. 667–71. It then held that even if counsel’s performance

were deficient, Andrews suffered no prejudice because a

different result was not reasonably probable in light of the

severity of his crimes, the fact that the jury might view some

of his mitigating evidence as aggravating, and the substantial

rebuttal evidence that could have been presented. Id. at 671.

Andrews filed a habeas petition in federal district court. 

His amended petition raised 32 claims, including multiple

subclaims. In a lengthy ruling on the merits of the petition,

the district court denied 31 claims, but granted relief on the

claim that Andrews’s counsel were ineffective at the penalty

phase of his trial for failing to investigate and present

additional mitigating evidence. Reviewing the evidence

produced by the referee on this issue, the district court

concluded that counsel had made “essentially no effort to

investigate and put on evidence in mitigation,” which

constituted deficient performance under Strickland. The

court then ruled that counsel’s “failure to adequately

investigate and discover evidence of a life filled with abuse

and privation is sufficient to establish prejudice under

Strickland,” but the court did not consider whether the

California Supreme Court’s rejection of this ineffective

assistance of counsel claim was “contrary to, or involved an

unreasonable application of” Strickland under 28 U.S.C.

§ 2254(d)(1). The court granted Andrews’s petition on this
18 ANDREWS V. DAVIS

ineffective assistance of counsel claim, denied Andrews’s

other 31 claims, and granted a certificate of appealability

(COA) on Andrews’s claim that California’s lethal injection

protocol violates the Eighth Amendment (Claim 25).

Andrews timely appealed, challenging the district court’s

denial of Claim 25 and the denials of several uncertified

claims. The state cross-appealed the district court’s grant of

relief on Andrews’s ineffective assistance of counsel claim. 

After briefing on his appeal was complete, Andrews moved

for permission to brief an additional uncertified claim, in

which he seeks habeas relief on the ground that it would

violate the Eighth Amendment to execute him after a long

delay from the date of his sentencing. We granted the

motion.

II

We review a district court’s grant or denial of habeas

relief de novo. Moses v. Payne, 555 F.3d 742, 750 (9th Cir.

2009).

A

The Antiterrorism and Effective Death Penalty Act

(AEDPA) applies to Andrews’s federal habeas petition,

which was filed after April 24, 1996. See Lindh v. Murphy,

521 U.S. 320, 322, 336 (1997). Under AEDPA, a court may

not grant a habeas petition “with respect to any claim that was

adjudicated on the merits in State court proceedings,”

28 U.S.C. § 2254(d), unless the state court’s judgment

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”
ANDREWS V. DAVIS 19

§ 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding,” § 2254(d)(2).4

Under § 2254(d)(1), the relevant Supreme Court

precedent includes only the decisions in existence “as of the

time the state court renders its decision.” Greene v. Fisher,

132 S. Ct. 38, 44 (2011) (internal quotation marks and

emphasis omitted); see also Cullen v. Pinholster, 131 S. Ct.

1388, 1399 (2011) (“State-court decisions are measured

against [the Supreme] Court’s precedents as of the time the

state court renders its decision.” (internal quotation marks

omitted)). Thus, Supreme Court cases decided after the state

court’s decision are not clearly established precedent under

§ 2254(d)(1) for purposes of evaluating whether the state

court reasonably applied such precedent.

A Supreme Court precedent is not clearly established law

under § 2254(d)(1) unless it “squarely addresses the issue” in

the case before the state court, Wright v. Van Patten, 552 U.S.

120, 125–26 (2008) (per curiam), or “establish[es] a legal

principle that ‘clearly extends’” to the case before the state

court, Moses, 555 F.3d at 754 (alterations omitted) (quoting

Van Patten, 552 U.S. at 123); see also Carey v. Musladin,

549 U.S. 70, 76–77 (2006) (holding that Supreme Court cases

evaluating state-sponsored courtroom conduct were not

clearly established law governing private actor courtroom

conduct). “[W]hen a state court may draw a principled

4 Neither party disputes that the claims in this case were “adjudicated on

the merits” by the California Supreme Court, and that its decision

constitutes the “last reasoned decision” of the state court with respect to

those claims. See Cheney v. Washington, 614 F.3d 987, 993, 995 (9thCir.

2010).
20 ANDREWS V. DAVIS

distinction between the case before it and Supreme Court

caselaw, the law is not clearly established for the state-court

case.” Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir. 2010). 

“[I]f a habeas court must extend a rationale before it can

apply to the facts at hand, then by definition the rationale was

not clearlyestablished at the time of the state-court decision.” 

White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (internal

quotation marks omitted). A principle is clearly established

law governing the case “if, and only if, it is so obvious that a

clearly established rule applies to a given set of facts that

there could be no fairminded disagreement on the question.” 

Id. at 1706–07 (internal quotation marks omitted).

A state court decision is “contrary to” Supreme Court

precedent if “the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases.” Williams

v. Taylor, 529 U.S. 362, 405 (2000). An “unreasonable

application” of Supreme Court precedent is not one that is

merely “incorrect or erroneous,” Lockyer v. Andrade,

538 U.S. 63, 75 (2003); see also Williams, 529 U.S. at 410;

rather, “[t]he pivotal question is whether the state court’s

application of the [relevant Supreme Court precedent] was

unreasonable,” Harrington v. Richter, 562 U.S. 86, 101

(2011) (emphasis added). If “‘fairminded jurists could

disagree’ on the correctness of the state court’s decision,” that

decision is not unreasonable. Id. at 101 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). A state court

summary denial is an “unreasonable application” of Supreme

Court precedent only if “there was no reasonable basis,” id.

at 98, for the decision in light of the “arguments or theories

[that] . . . could have supported[] the state court’s decision,”

id. at 102.
ANDREWS V. DAVIS 21

The Supreme Court has made clear that § 2254(d) sets

forth a “highly deferential standard[,] . . . which demands that

state-court decisions be given the benefit of the doubt.” 

Pinholster, 131 S. Ct. at 1398 (internal quotation marks

omitted). “As amended by AEDPA, § 2254(d) stops short of

imposing a complete bar on federal-court relitigation of

claims already rejected in state proceedings,” but only

“preserves authority to issue the writ in cases where there is

no possibility fairminded jurists could disagree that the state

court’s decision conflicts with this Court’s precedents” and

“goes no further.” Richter, 562 U.S. at 102. “[E]ven a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. In a nutshell, “[i]f this

standard is difficult to meet, that is because it was meant to

be.” Id. at 102.

B

The clearly established federal law for ineffective

assistance of counsel claims, as determined by the Supreme

Court, is Strickland v. Washington, 466 U.S. 668 (1984), and

its progeny. See Pinholster, 131 S. Ct. at 1403. Strickland

concluded that, under the Sixth Amendment, the accused has

the right to the effective assistance of counsel at trial and

during capital sentencing proceedings. 466 U.S. at 684–87. 

A petitioner claiming ineffective assistance of counsel must

prove: (1) that “counsel’s performance was deficient,” and

(2) that “the deficient performance prejudiced the defense.” 

Id. at 687. “[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged

deficiencies.” Id. at 697. Rather, “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course
22 ANDREWS V. DAVIS

should be followed.” Id. In short, a court need not address

the two Strickland prongs in order; if ruling on the prejudice

prong more efficiently resolves the case, reaching the

deficiency prong is unnecessary. Id.

In determining whether a state court’s adjudication of an

ineffective assistance of counsel claim was an unreasonable

application of Supreme Court precedent, we may consider

how the Supreme Court itself has applied Strickland to other

factual contexts, but this is merely “illustrative of the proper

application of [Strickland’s] standards.” See Wiggins v.

Smith, 539 U.S. 510, 522 (2003); see also Pinholster, 131 S.

Ct. at 1407 n.17; Brian R. Means, Federal Habeas Manual

§ 3:29 (2014). The Supreme Court has warned us not to

derive “strict rules” from its cases applying Strickland de

novo because “the Strickland test ‘of necessity requires a

case-by-case examination of the evidence.’” Pinholster, 131

S.Ct. at 1407 & n.17 (quoting Williams, 529 U.S. at 391). 

Further, Supreme Court cases decided on de novo review

“offer no guidance with respect to whether a state court has

unreasonably determined that prejudice islacking” or defense

counsel was deficient, and so are not directly applicable to a

federal court’s review under § 2254(d)(1) of a habeas

petitioner’s claim that a state court unreasonably applied

Strickland. Id. at 1411. Indeed, a state court’s application of

Strickland may be objectively reasonable based on clearly

established Supreme Court precedent at the time of its

decision even if the Supreme Court’s subsequent applications

of Strickland suggest a different result. By contrast, when the

Supreme Court addresses the AEDPA question whether a

state court’s adjudication of an ineffective assistance of

counsel claim was an unreasonable application of Strickland,

its reasoning guides a federal court’s AEDPA analysis

regardless of when the opinion was issued.
ANDREWS V. DAVIS 23

The Supreme Court has provided guidance for applying

Strickland to determine whether counsel’s “deficient

performance prejudiced the defense,” Strickland, 466 U.S. at

687, at the penalty phase of a capital case. To make this

prejudice determination, a court generally proceeds through

three steps: (1) evaluating and weighing the totality of the

available mitigation evidence, see Williams, 529 U.S. at

397–98; Pinholster, 131 S. Ct. at 1408–10; (2) evaluating and

weighing the aggravating evidence and any rebuttal evidence

that could have been adduced by the government had the

mitigating evidence been introduced, Williams, 529 U.S. at

397–98; Pinholster, 131 S.Ct. at 1408–10, and (3) reweighing

the evidence in aggravation against the totality of available

mitigating evidence, see Sears v. Upton, 561 U.S. 945,

955–56 (2010) (per curiam); Wiggins, 539 U.S. at 534;

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

a reasonable probability that, absent the errors, the sentencer

. . . would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death,” Strickland,

466 U.S. at 695. We explain the Supreme Court’s guidance

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 mitigation evidence.”

Williams, 529 U.S. at 397–98. The evidence to be evaluated

includes both evidence that was actually presented at

sentencing and evidence that a competent attorney would

have introduced. See Wiggins, 539 U.S. at 534–35. We may

assume that a competent attorney would have considered

presenting all of the evidence adduced in post-conviction
24 ANDREWS V. DAVIS

proceedings. See Wong v. Belmontes, 558 U.S. 15, 20 (2009)

(per curiam).

Mitigation evidence is a broad category, as a jury must be

permitted to consider all relevant mitigating factors. Lockett

v. Ohio, 438 U.S. 586, 608 (1978) (plurality opinion);

Eddings v. Oklahoma, 455 U.S. 104, 110–12 (1982). The

Supreme Court has identified several non-exclusive

categories of mitigation evidence, focusing primarily on

evidence that aids the jury’s evaluation of a defendant’s

moral culpability. See Wiggins, 539 U.S. at 535. For

instance, evidence of a defendant’s disadvantaged

background may lead a jury to conclude the defendant is “less

culpable than defendants who have no such excuse.” Penry

v. Lynaugh, 492 U.S. 302, 319 (1989) (internal quotation

marks omitted), abrogated on 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 parents who were eventually imprisoned for

criminal child neglect, could influence a jury’s appraisal of

the defendant’s moral culpability. Williams, 529 U.S at 395,

398; see also Wiggins, 539 U.S. at 535 (mitigating evidence

included evidence that the defendantsuffered severe privation

and abuse as a child, had an alcoholic and absent mother, was

physically and sexually abused in foster care, and was

homeless for a brief period); Rompilla v. Beard, 545 U.S.

374, 391–93 (2005) (mitigating evidence included evidence

that the defendant was raised in a slum by severely abusive,

alcoholic parents, who did not provide for him and isolated

him).

Similarly, evidence of a defendant’s mental or emotional

difficulties may lead a jury to conclude that a defendant is

less culpable than defendants without such difficulties. 
ANDREWS V. DAVIS 25

Penry, 492 U.S. at 319. For instance, evidence that a

defendant is “borderline mentally retarded,” Williams,

529 U.S. at 396 (internal quotation marks omitted), or has

severe PTSD from military combat, see Porter v. McCollum,

558 U.S. 30, 35–36 & n.4, 43–44 (2009), or has severe

learning and behavioral disabilities, frontal lobe injuries, and

brain damage from drug and alcohol abuse, see Sears,

561 U.S. at 948–49, is potentially mitigating evidence.

Evidence of conduct or behavior demonstrating the

defendant’s good character may also be mitigating. In

Williams, the Court gave weight to evidence that the

defendant had turned himself in, alerted police to a previously

undetected crime, expressed remorse, cooperated with police,

and behaved well in prison. 529 U.S. at 369, 396, 398. In

Belmontes, the Court noted mitigation evidence that the

defendant had maintained strong relationships with family

members in spite of his terrible childhood, and that while in

prison, he assisted others through a prison religious program

and rose to second in command in a fire crew. 558 U.S. at

21.

After identifying the evidence that the petitioner claims to

be mitigating, a court must weigh its strength by assessing its

likely impact on a jury. This weighing process includes

evaluating whether its impact on the jury might be

aggravating rather than mitigating. See Pinholster, 131 S. Ct.

at 1410. The Supreme Court has indicated that courts can

consider the fact that mitigation “may be in the eye of the

beholder,” and juries may find that some evidence offered as

mitigation cuts the other way. Burger v. Kemp, 483 U.S. 776,

794 (1987)(alterations and internal quotation marks omitted). 

In Burger, the Court noted that “[o]n one hand, a jury could

react with sympathy over the tragic childhood” of the
26 ANDREWS V. DAVIS

defendant, while on the other hand, the same testimony could

establish the defendant’s “unpredictable propensity for

violence” that resulted in murder. Id. (internal quotation

marks omitted). Similarly, evidence of mental and emotional

problems might suggest an increased likelihood that a

defendant would be dangerous in the future. See Pinholster,

131 S. Ct. at 1410 (noting that evidence of the defendant’s

family background, their substance abuse, and their mental

health issues, was “by no means clearlymitigating, as the jury

might have concluded that [the defendant]was simply beyond

rehabilitation”). The Court has also observed that evidence

of the defendant’s normal youth might, in the jury’s eyes,

establish greater moral culpability on the part of the

defendant. See Bell v. Cone, 535 U.S. 685, 701–02 (2002).

2

The second step in determining whether counsel’s

deficient performance prejudiced the defendant at the penalty

phase is evaluating the weight of the aggravating evidence

and any rebuttal evidence that could have been adduced by

the government had the mitigating evidence been introduced. 

See Williams, 529 U.S. at 397–98; Pinholster, 131 S. Ct. at

1408–10. Aggravating evidence may include evidence

relating to the circumstances of the crime. Thus in

Strickland, the Court found the aggravating evidence to be

“overwhelming” where the defendant had repeatedly stabbed

the three murder victims during a robbery. 466 U.S. at 674,

700. Similarly, where the record showed that the defendant

had bludgeoned a woman to death with 15 to 20 blows of a

steel dumbbell bar to steal goods worth a mere $100, the

Supreme Court agreed with the state court that the

aggravating evidence was “simply overwhelming” and

determined that counsel’s failure to introduce certain
ANDREWS V. DAVIS 27

mitigating evidence was not prejudicial. Belmontes, 558 U.S.

at 15–16, 26–27 (internal quotation marks omitted). In Bobby

v. Van Hook, the Supreme Court gave weight to evidence that

the murder was committed in the course of a scheme to rob

homosexual men by luring them into secluded settings. 

558 U.S. 4, 12–13 (2009) (per curiam). In doing so, the

Court clarified that the weight, not the number, of the

aggravating factors was important. Id.

Evidence about a defendant’s prior criminal historyis also

aggravating and can be introduced in rebuttal, and a severe

criminal history carries great weight. See Woodford v.

Visciotti, 537 U.S. 19, 26–27 (2002) (criminal history that

included “the knifing of one man, and the stabbing of a

pregnant woman as she lay in bed trying to protect her unborn

baby,” combined with the circumstances of the crime, was

“overwhelming” and “devastating” aggravating evidence);

accord Bell, 535 U.S. at 700 & n.5 (defense counsel

reasonably feared the prosecution would elicit information

about defendant’s criminal history, which included robberies,

in rebuttal); Burger, 483 U.S. at 793 (defense counsel

reasonably feared the prosecution would introduce the

defendant’s juvenile criminal history in rebuttal, when he had

a clean adult record). Evidence that a defendant had

previously committed another murder may be “the most

powerful imaginable aggravating evidence.” Belmontes,

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

Rebuttal evidence may also directly undermine the value

of the mitigation evidence. For example, the Supreme Court

noted in Pinholster that it would be “of questionable

mitigating value” for defense counsel to introduce expert

testimony diagnosing a defendant with bipolar mood disorder

and seizure disorders, because such evidence would invite
28 ANDREWS V. DAVIS

rebuttal by a state expert, who could reject the diagnosis of

bipolar disorder and offer a different diagnosis of antisocial

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

3

Finally, the third step in determining whether counsel’s

deficient performance prejudiced the defendant at the penalty

phase is to “reweigh the evidence in aggravation against the

totality of available mitigating evidence,” Wiggins, 539 U.S.

at 534, in order to determine “whether there is a reasonable

probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating

circumstances did not warrant death,” Strickland, 466 U.S. at

695. A “reasonable probability” is a level of probability that

“undermine[s] confidence in the outcome.” Id. at 694. 

However, counsel’s deficient performance is not prejudicial

merely because the court cannot “rule out” the possibility

that the sentencer would have imposed a sentence of life in

prison instead of the death penalty. Belmontes, 558 U.S. at

20, 27 (internal quotation marks omitted); see also Richter,

562 U.S. at 111 (“In assessing prejudice under Strickland, the

question is not whether a court can be certain counsel’s

performance had no effect on 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 and a more-probable-than-not standard is

slight and matters ‘only in the rarest case.’” Id. (quoting

Strickland, 466 U.S. at 697).

The Court has found a reasonable probability of a

different outcome when only scant and weak aggravating

evidence could have been presented in rebuttal to strongly
ANDREWS V. DAVIS 29

mitigating evidence. See Wiggins, 539 U.S. at 534–36,

537–38 (holding that there was a reasonable probability that

the jury would have reached a different result at sentencing

had it heard powerful mitigating evidence regarding the

defendant’s childhood background, when the state could have

presented only weak rebuttal evidence). By contrast, the

Court has found no prejudice when the aggravating evidence

is overwhelming, even though the mitigating evidence is

strong. See Visciotti, 537 U.S. at 26–27 (holding that there

was no reasonable probability of a different result when the

mitigating evidence, including the defendant’s “troubled

family background” and possible seizure disorder, did not

outweigh the “overwhelming” aggravating factors, including

the circumstances of the crime and potential rebuttal evidence

of prior offenses).

In reweighing aggravating and mitigating evidence, the

Court has also examined whether mitigating evidence would

be merely cumulative or would have significantly altered the

information provided to the sentencer. See Strickland,

466 U.S. at 699–700; Porter, 558 U.S. at 41–42. In

Strickland, the new information “would barely have altered”

the picture presented at sentencing, and the Court found no

prejudice. 466 U.S. at 699–700. Similarly, in Belmontes, the

Court concluded that merely cumulative evidence regarding

a petitioner’s difficult childhood, and expert testimony

regarding a petitioner’s mental state “seeking to explain his

behavior, or putting it in some favorable context” would not

outweigh the facts of a brutal murder, and would be even less

likely to outweigh evidence that the defendant had committed

a prior murder. 558 U.S. at 22–24, 27–28. Accordingly, the

Court concluded that any failure of counsel to present

additional mitigating evidence was not prejudicial. Id. at 27.
30 ANDREWS V. DAVIS

These Supreme Court opinions suggest that under

Strickland’s prejudice prong, cumulative mitigating evidence

does not support a conclusion that there would be a

reasonable probability of a different outcome. New

mitigating evidence can support such a conclusion only if it

is sufficiently strong, and the known or additional

aggravating evidence is not overwhelming.

C

In light of this guidance, we now evaluate the California

Supreme Court’s rejection of Andrews’s claim that he was

prejudiced by his counsel’s failure to investigate and present

additional mitigating evidence at the penalty phase of his

trial. We must determine whether this decision was “contrary

to, or involved an unreasonable application of,” Strickland or

other Supreme Court precedent in existence at the time of its

opinion. § 2254(d)(1); see Pinholster, 131 S. Ct. at 1399.

In considering whether any deficiency by Andrews’s

counsel was prejudicial, the California Supreme Court

correctly followed Strickland in asking whether, even if

counsel was deficient, Andrews’s defense was not prejudiced

by any such deficiency because a different result was not

reasonably probable.5See In re Andrews, 52 P.3d at 671

5 Andrews argues that the state court failed to apply the correct legal

standard established in Tennard v. Dretke, 542 U.S. 274 (2004) and Smith

v. Texas, 543 U.S. 37 (2004), because it dismissed Andrews’s mitigating

evidence on the ground that the evidence was not unambiguously

mitigating, and implied that there must be some connection between the

mitigating evidence not introduced at the penalty phase and the crimes. 

We disagree. Tennard and Smith require a sentencer to have the

opportunity to consider and give effect to all relevant mitigating evidence,

but do not specify what weight the sentencer must give such evidence. 
ANDREWS V. DAVIS 31

(quoting Strickland, 466 U.S. at 694). The California

Supreme Court then reasonably carried out the three steps

indicated bySupreme Court opinions for evaluating prejudice

at the penalty phase.

1

The court first considered the totality of the mitigating

evidence presented at trial, as well as what mitigation could

have been presented by a competent attorney, based on the

six-year review and report by the referee. See Williams,

529 U.S. at 397–98. The court reviewed all of the mitigating

evidence that Andrews presented, including Andrews’s

family background, In re Andrews, 52 P.3d at 660, 670,

incarceration in Mt. Meigs and in Alabama prisons,6id. at

See Eddings, 455 U.S. at 114–15 (“The sentencer . . . may determine the

weight to be given relevant mitigating evidence. But [courts] may not give

it no weight by excluding such evidence from their consideration.”). 

Here, the California Supreme Court correctly considered all mitigating

evidence before weighing its likely effect on a jury. See Pinholster,

131 S. Ct. at 1410.

6 Andrews’s claim that the state court failed to consider his experiences

at Mt. Meigs, is not supported by the record. The state court detailed

Andrews’s experiences at Mt. Meigs when discussing mitigating evidence

that could have been presented, noting that “[a]t Mt. Meigs, [Andrews]

encountered appalling conditions” and detailing the referee’s findings that

Andrews was “was subjected to beatings, brutality, inadequate conditions

and sexual predators,” that “[h]is passiveness and small physique caused

him to be a target of older, tougher boys, from whom no protection or

separation was provided,” and that “Mt. Meigs failed to provide any

meaningful rehabilitative or educational opportunities.” In re Andrews,

52 P.3d at 660–61 (internal quotation marks omitted). The state court also

noted that expert testimony would have addressed his drug use at Mt.

Meigs. Id. at 661. Moreover, the state court’s use of the term “prison
32 ANDREWS V. DAVIS

660–61, 670–71, and mental health evidence, id. at 661–62,

670, observing that the similar types of mitigating evidence

have been considered in Supreme Court precedent, id. at

672–75; see Penry, 492 U.S. at 319; Williams, 529 U.S. at

395–98.

The California Supreme Court then evaluated the strength

of this mitigating evidence by considering, among other

things, whether it might be viewed by a jury as aggravating. 

See Burger, 483 U.S. at 793; Pinholster, 131 S. Ct. at 1410. 

It reasonably concluded that much of the evidence identified

as mitigating “was not conclusively and unambiguously

mitigating,” and it evaluated the possibility that the evidence

could be rebutted or used to Andrews’s disadvantage, or that

cross examination might “deflate the mitigating impact” of

the evidence. In re Andrews, 52 P.3d at 670 & n.9. The court

reasonably observed that a jury could have determined that

Andrews’s family background did not reduce his moral

culpability, given that Andrews was raised in a non-abusive,

stable family situation. Id. at 670; cf. Bell, 535 U.S. at

701–02 (suggesting that evidence of a normal youth might

“cut the other way”). The court reasonably concluded that

“[Andrews] did not suffer a home environment that would

place his crimes in any understandable context or explain his

resorting to crime every time he was released or escaped from

prison.” Id. at 670.

In addition, the state court reasonably determined that the

evidence regarding the prison conditions was double-edged. 

On the one hand, the prison conditions evidence left it in “no

doubt [that Andrews] endured horrifically demeaning and

conditions” in its opinion is consistent with its use in the referee’s report,

where the term referred to conditions both in prison and Mt. Meigs.
ANDREWS V. DAVIS 33

degrading circumstances.” Id. On the other hand, the

evidence would be presented primarily through the testimony

of Andrews’s former fellow inmates, who had serious

criminal records that could “draw[] an unfavorable

comparison” with Andrews. Id. at 671. “Many had

themselves engaged in brutality while in prison and escaped

with some frequency,” also similar to Andrews. Id. 

Moreover, no matter how the prison conditions evidence was

presented, “[r]ather than engendering sympathy, the evidence

could well have reinforced an impression of him as a person

who had become desensitized and inured to violence and

disrespect for the law.”7Id.; cf. Pinholster, 131 S. Ct. at

1410.

2

After assessing the weight of the mitigating evidence and

its likely impact on a jury, the state court followed Supreme

Court guidance by turning to evaluate the weight of the

aggravating evidence at trial, as well as any additional

rebuttal evidence that could have been introduced. See

Williams, 529 U.S. at 397–98; Belmontes, 558 U.S. at 20,

24–28. Consistent with Supreme Court precedent, the state

court considered the circumstances of Andrews’s crime and

the nature of his prior criminal history. Turning to the

circumstances of the crimes, the state court stated that the

murders showed a “callous disregard for human life.” In re

7 Andrews argues that the state court made an unreasonable

determination of the facts, see § 2254(d)(2), in holding that the prison

conditions evidence could be aggravating. We reject this argument,

because the state court’s conclusion is a reasonable application of the

prejudice standard elaborated by Strickland and its progeny, not a factual

finding. Cf. Pinholster, 131 S. Ct. at 1410.
34 ANDREWS V. DAVIS

Andrews, 52 P.3d at 671; cf. Strickland, 466 U.S. at 674, 700;

Belmontes, 558 U.S. at 15, 26–27. Andrews did not

impulsively react to a situation that got out of hand; rather, he

interacted with the victims 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 sodomized Brandon before murdering her, and he also

murdered Wheeler and Chism with “considerable violence

and evident sangfroid.” Id. The state court also considered

that, as rebuttal evidence, the prosecution could have

presented the details of Andrews’s criminal history, cf. Bell,

535 U.S. at 700 & n.5; Burger, 483 U.S. at 793, from which

the jury might conclude Andrews was “aggressive and

desensitized to violence,” In re Andrews, 52 P.3d at 669. The

jury might also have concluded that this “pattern of

criminality” showed Andrews “would pose a danger to others

if he were sentenced to life imprisonment.”8Id. Also, the

8 Andrews argues that the state court’s conclusion that the evidence gave

rise to the inference of future dangerousness was an unreasonable

determination of the facts. He argues that the prison stabbings, laundry

robbery, and conditioning to violence during his prison experiences do not

support such an inference, pointing to mitigating facts found by the

referee, including that in some incidents, Andrews was defending himself

against inmates who had been threatening him. We disagree. The state

court considered these mitigating facts (such as evidence that in prison

Andrews was “the prey rather than the predator” and acted in self

defense), see In re Andrews, 52 P.3d at 660–61, and reasonably concluded

that the evidence that Andrews was conditioned to violence during his

prison experiences was an aggravating, not mitigating, circumstance, see

Burger, 483 U.S. at 793 (noting that evidence of a petitioner’s troubled

family background could also “suggest violent tendencies” that could

affect the jury adversely). Because the state court reasonably concluded

that the jury could have found future dangerousness even had the

mitigating evidence been introduced, the state court did not unreasonably

apply Supreme Court precedent in weighing how the evidence might

impact a jury.
ANDREWS V. DAVIS 35

references to Andrews’s multiple escapes from prison might

have been “inflammatory.” Id.

Finally, the state court reasonably concluded that the

prosecution could have presented its own mental health

experts in rebuttal, and could have used the mental health

evidence to Andrews’s disadvantage on cross examination. 

Id. at 670. The court noted the referee’s findings that

prosecution experts could have testified that Andrews had

normal intelligence and did not suffer brain damage, but had

antisocial personality traits.9

Id.; cf. Pinholster, 131 S. Ct. at

1396, 1410. Nor was the state court unreasonable in

concluding that Andrews’s experts’ testimonycould backfire. 

For instance, the court noted that the “compelling” testimony

from one of Andrews’s expert psychiatric witnesses, opining

that Andrews’s prison experience caused him to react with

rage to perceived insults, could cause a jury to conclude that

Andrews “was unable to control lethal impulses on the

slightest provocation.” In re Andrews, 52 P.3d at 670; cf.

Pinholster, 131 S. Ct. at 1410. Finally, the presentation of the

mental health evidence would have given the prosecutor

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 Andrews argues that the state court unreasonably applied Eddings,

455 U.S. at 114–15, in concluding that a diagnosis of antisocial

personality disorder is not mitigating. Eddings is not on point, because it

merely held that a court cannot prevent a jury from hearing such evidence. 

Id. The state court did not unreasonably apply Eddings, or any other

Supreme Court precedent, by observing that evidence that Andrews had

antisocial personality disorder might make him less sympathetic to the

jury. In re Andrews, 52 P.3d at 670–71.
36 ANDREWS V. DAVIS

3

After evaluating the mitigating and aggravating evidence,

the state court re-weighed it and assessed whether it was

reasonably probable that, in the absence of any deficient

performance by counsel, the sentencer “would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Strickland, 466 U.S.

at 695; see In re Andrews, 52 P.3d at 671–75. The state court

applied the relevant Supreme Court precedent, and concluded

that Andrews was not “prejudiced by counsel’s rejection of

a defense premised on evidence of [Andrews]’s upbringing,

the Alabama prison conditions he experienced, and his mental

health in light of the circumstances of the crimes, given the

ambiguous nature of some mitigating evidence and the

substantial potential for damaging rebuttal.” Id. at 671.

Relying on the Supreme Court’s decisions in Williams

and Porter, Andrews argues that the California Supreme

Court’s decision on the issue of prejudice was an

unreasonable application of Strickland.10In Williams, the

Supreme Court held that the state court applied the wrong

legal standard, 529 U.S. at 395–97, and so applied Strickland

de novo to the facts of that case, id. at 397–98; see also

Pinholster, 131 S. Ct. at 1410–11. The state court here

discussed Williams at length and reasonably distinguished it

as having “substantially dissimilar facts.” In re Andrews,

52 P.3d at 675. In Williams, for instance, the defense counsel

could have introduced strong character evidence, 529 U.S. at

10 While Andrews cites other Supreme Court and Ninth Circuit cases, his

argument focuses primarily on Williams and Porter. Because other cases

cited by Andrews are non-binding, not factually analogous, or both, we do

not address them here.
ANDREWS V. DAVIS 37

398, but no comparable evidence of good character was

present in Andrews’s case.11 The defendant’s “nightmarish

childhood” in Williams, 529 U.S. at 395, 398, was far worse

than Andrews’s relatively stable family background, see In re

Andrews, 52 P.3d at 674. The defendant in Williams was

“borderline mentally retarded,” 529 U.S. at 396, 398 (internal

quotation marks omitted), while the prosecution could have

presented evidence that Andrews was not mentally impaired,

but rather had antisocial personality traits, In re Andrews,

52 P.3d at 670. The only rebuttal evidence in Williams was

the defendant’s three juvenile convictions, 529 U.S. at 396,

compared to Andrews’s robbery-murder, hostage taking, and

history of escape from prison, In re Andrews, 52 P.3d at 675. 

Finally, the circumstances of the crime in Williams were less

brutal than Andrews’s triple murder, id., because the

defendant in Williams killed the severely inebriated victim

with one blow each to the chest and back after an argument,

529 U.S. at 367–68 & n.1. Because the facts of Williams are

dissimilar, the Supreme Court’s determination in Williams

that counsel’s ineffective assistance was prejudicial does not

make the state court’s contrary conclusion here unreasonable.

See Richter, 562 U.S. at 101–02; see also Pinholster, 131 S.

Ct. at 1410–11.

Andrews also argues that the state court’s decision was

unreasonable in light of Porter. AlthoughPorterwas decided

years after the California Supreme Court’s opinion in this

case, we give it careful consideration, because it provides

direction for determining under AEDPA what constitutes an

unreasonable application of Strickland. In Porter, the

11 Andrews points to evidence that he appeared to adjust well to the

Alabama prison system when conditions permitted, but this observation

is weaker than the evidence in Williams. See 529 U.S. at 396.
38 ANDREWS V. DAVIS

Supreme Court faulted the state court for failing to consider

all of the mitigating evidence regarding the defendant’s

familybackground, militaryservice, and mental health issues. 

For instance, the state court entirely discounted the effect that

evidence of the defendant’s brain abnormality and cognitive

defects might have on a jury. See Porter, 558 U.S. at 42–44. 

Further, the state court unreasonably discounted mitigating

evidence of childhood abuse and the defendant’s long record

of military service. Id. at 43–44. Applying AEDPA, Porter

held that the state court had unreasonably applied Strickland

when it held that counsel’s failure to introduce this substantial

mitigation evidence was not prejudicial. Id. at 44.

The state court’s determinations in Porter are not closely

analogous to the state court’s determinations in this case. 

Unlike the state court in Porter, the state court here

considered all mitigation evidence in the record and did not

fail to consider or “discount to irrelevance” significant

evidence. See Porter, 558 U.S. at 43. The mitigation

evidence in Porter, including that the defendant served in

“horrific” battles of the Korean War, suffered childhood

physical abuse, and had a brain abnormality, see id. at 41, is

less subject to rebuttal than the mitigation evidence in this

case, see In re Andrews, 52 P.3d at 670–71. Unlike here,

where the state’s mental health expert disagreed with the

defense experts’ conclusions and added a diagnosis of

antisocial personality disorder, see id. at 670, in Porter, state

experts could not rule out the defense experts’ mental health

diagnosis, and the state court erred by failing to consider this

evidence at all, see 558 U.S. at 36, 42–43. Likewise,

evidence that the defendant had gone AWOL did not

diminish evidence of his military service to “inconsequential

proportions,” because our nation has a tradition of “according

leniency to veterans,” and the evidence was “consistent with
ANDREWS V. DAVIS 39

[the] theory of mitigation 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 found that

Andrews “endured horrifically demeaning and degrading

circumstances” in prison before acknowledging this evidence

was “double-edged,” because it would also bring before the

jury Andrews’s history of violence both in and out of prison

and his escapes, which would be emphasized by their

similarity to many of the witnesses who would testify for

him. In re Andrews, 52 P.3d at 670–71. Further, while the

state court here reasonably determined that the prosecution

could introduce damaging aggravating evidence, id. at 671,

675, in Porter, the Supreme Court held that the amount of

aggravating evidence would be reduced, because one of the

aggravating factors was invalid, 558 U.S. at 42. Because

Porter is factually distinct from this case, it has little bearing

on the question whether the state court unreasonably applied

the prejudice prong of Strickland.12

Visciotti, another Supreme Court case that provides

direction for determining under AEDPA what constitutes an

unreasonable application of Strickland, is more closely on

point. In Visciotti, the Supreme Court considered a state

court’s rejection of a defendant’s Strickland claim. 537 U.S.

at 26. The state court had weighed the mitigating evidence,

including the defendant’s brain damage, difficult family

12 Andrews also urges us to apply our recent decision in Doe v. Ayers,

782 F.3d 425 (9th Cir. 2015), where we concluded that the defendant was

prejudiced by counsel’s deficient performance in failing to investigate and

present mitigating evidence, including evidence of his rape in prison. Doe

v. Ayers is not pertinent to our analysis here because it is a pre-AEDPA

case that does not examine whether the state court’s conclusion was

unreasonable. See id. at 446, n.31. Nor is Doe clearly established law as

determined by the Supreme Court. See § 2254(d)(1).
40 ANDREWS V. DAVIS

background, and possible seizure disorder, against the

aggravating factors, including the circumstances of the crime

(the cold-blooded killing of two victims during a robbery)

and his criminal history of knifing a man and stabbing a

pregnant woman in bed “trying to protect her unborn baby,”

and concluded that the defendant had suffered no prejudice. 

See id. at 25–26. After the defendant filed a habeas petition,

the district court granted relief and we affirmed. We

reasoned that counsel’s deficient performance was

prejudicial, because the “aggravating factors were not

overwhelming.” Id. at 21–22, 25 (quoting Visciotti v.

Woodford, 288 F.3d 1097, 1118 (9th Cir. 2002)). The

Supreme Court reversed. It explained that “under

§ 2254(d)(1), it is not enough to convince a federal habeas

court that, in its independent judgment, the state-court

decision applied Strickland incorrectly.” Id. at 27 (internal

quotation marks omitted). Rather, “[t]he federal habeas

scheme leaves primary responsibility with the state courts for

these judgments, and authorizes federal-court intervention

only when a state-court decision is objectively unreasonable. 

It is not that here.” Id. In sum, the Court held that “[w]hether

or not we would reach the same conclusion as the California

Supreme Court, we think at the very least that the state

court’s contrary assessment was not ‘unreasonable.’” Id.

(quoting Bell, 535 U.S. at 701) (internal quotation marks

omitted).

Here, as in Visciotti, the state court reweighed Andrews’s

mitigating evidence against the brutal circumstances of the

crime and Andrews’s prior criminal history, and determined

there was no reasonable probability that the sentencer would

determine that “the balance of aggravating and mitigating

factors did not warrant imposition of the death penalty.” Id.

at 22 (internal quotation marks omitted). This decision was
ANDREWS V. DAVIS 41

not objectively unreasonable, and therefore we are bound to

conclude that “[w]hether or not we would reach the same

conclusion,” we cannot say the California Supreme Court’s

conclusion was an unreasonable application of Strickland. 

See id. at 27.

Because the state court’s rejection of Andrews’s penalty

phase ineffective assistance of counsel claim was not contrary

to or an unreasonable application of Supreme Court

precedent, we may not grant relief on this claim. 

§ 2254(d)(1). We therefore reverse the district court’s

contrary conclusion.13

III

Having addressed the state’s cross-appeal, we now turn to

Andrews’s appeal of the district court’s dismissal of his sole

certified claim (Claim 25) that California’s use of its lethal

injection protocol to execute him would violate his Eighth

Amendment rights. According to the district court, the

California lethal injection protocol mirrored the Kentucky

lethal injection protocol upheld by the Supreme Court against

an Eighth Amendment challenge in Baze v. Rees, 553 U.S. 35

(2008). The court reasoned that in light of Baze’s ruling, it

would be impossible for Andrews to succeed on his challenge

toCalifornia’s lethal injection protocol, and therefore rejected

this claim.

13 Because we decide Andrews’s claim on prejudice grounds, we need

not address the parties’ arguments regarding whether counsel’s

performance was deficient at the penalty phase. Strickland, 466 U.S. at

697. We also need not consider the additional aggravating evidence put

forth by the state, which Andrews disputes, and therefore deny the state’s

motion for judicial notice of these additional materials.
42 ANDREWS V. DAVIS

At the time the district court ruled in July 2009, California

did not have a lethal injection protocol in place. As explained

in Sims v. Dep’t of Corrections, the California Department of

Corrections and Rehabilitation (CDCR) has the responsibility

for developing a procedure for executions by lethal injection. 

216 Cal. App. 4th 1059, 1064 (2013). In December 2006, a

federal district court ruled that CDCR’s procedure violated

the Eighth Amendment prohibition against cruel and unusual

punishment. Id. (citing Morales v. Tilton, 465 F. Supp. 2d

972 (N.D. Cal. 2006)). Although the CDCR substantially

revised its protocol in 2007, a state trial court invalidated the

revised procedure on the ground that it violated the state’s

administrative procedure act. Id. After losing its appeal,

CDCR promulgated a new procedure, which took effect on

August 29, 2010. Id. at 1064–65. In response to a new legal

challenge, a trial court again invalidated the CDCR lethal

injection procedure for failure to comply with the state

administrative procedure act and permanently enjoined the

CDCR from administering executions bylethal injection until

it promulgated new regulations. Id. at 1066–67. This

injunction was upheld on appeal. Id. at 1083–84. Andrews’s

supplemental brief on appeal informed the court that

California had no lethal injection protocol in place as of

November 12, 2014, and the parties have not informed us of

any change since that date. Our research reveals none.14

It is premature to rule on the constitutionality of a state’s

lethal injection protocol if the state does not have one in

place. See Payton v. Cullen, 658 F.3d 890, 893 (9th Cir.

14 Pursuant to a settlement agreement approved by a state court in June

2015, the CDCR agreed to begin the process of promulgating a new lethal

injection protocol. Winchell v.Beard,No. 34-2014-80001968 (Cal. Super.

Ct. June 3, 2015).
ANDREWS V. DAVIS 43

2011). Therefore, the district court erred in entertaining this

claim, and we dismiss it as unripe.15

IV

Andrews also raises several uncertified claims based on

the following legal theories: (1) unconstitutional delay

between sentencing and execution under Lackey v. Texas,

514 U.S. 1045 (1995) (Stevens, J., statement respecting

denial of certiorari); (2) ineffective assistance of counsel

under Strickland; (3) failure to disclose material exculpatory

evidence and false testimony under Brady v. Maryland,

373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264, 269

(1959); and (4) destruction of evidence in violation of due

process under California v. Trombetta, 467 U.S. 479 (1984),

and its progeny. He also raises uncertified claims based on

cumulative error and factual innocence.

We first turn to the question whether Andrews must

obtain a COA for these claims under 28 U.S.C. § 2253(c).16

 

15 In light of this holding, we need not reach Andrews’s claims that the

district court erred in denying him an evidentiary hearing on Claim 25 or

in declining to stay this claim to allow him to rely on evidence presented

in Morales.

 

16 Section 2253(c) states:

(c)(1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken

to the court of appeals from–

(A) the final order in a habeas corpus proceeding

in which the detention complained of arises out of

process issued by a State court; or
44 ANDREWS V. DAVIS

Our analysis of this question is governed by Jennings v.

Stephens, which considered whether a habeas petitioner who

obtained relief in the district court could defend this judgment

on alternate grounds without taking a cross-appeal and

obtaining a COA. 135 S. Ct. 793, 798 (2015). Jennings held

that a habeas petitioner in such circumstances need not take

a cross-appeal so long as the petitioner did not attempt to

defend the district court’s judgment on a theory that seeks “to

enlarge his rights or lessen the State’s under the District

Court’s judgment granting habeas relief.” Id. at 798,

801–02.17 Further, because “§ 2253(c) applies only when ‘an

appeal’ is ‘taken to the court of appeals,’” id. at 802 (quoting

§ 2253(c)), a petitioner who does not have to take a crossappeal does not need a COA, id. Applying this rule, Jennings

noted that the district court’s judgment granting the petitioner

relief at the penalty phase of his trial entitled him “to release,

resentencing, or commutation, at the State’s option.” Id. at

799. Accordingly, “[a]ny potential claim that would have

entitled [the petitioner] to a new sentencing proceeding could

(B) the final order in a proceeding under section

2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right.

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2).

17 Jennings was nonetheless careful to note that a petitioner defending

his judgment on appeal would be “confined to those alternative grounds

present in the record: he may not simply argue any alternative basis,

regardless of its origin.” Jennings, 135 S. Ct. at 800.
ANDREWS V. DAVIS 45

have been advanced to ‘urge . . . support’ of the judgment,”

id. at 800 (last alteration in original) (quoting United States

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

a cross-appeal nor a COA would be required. Id. at 800–02. 

By contrast, “[a] habeas applicant who has won resentencing

would be required to take a cross-appeal in order to raise a

rejected claim that would result in a new trial.” Id. at 800. 

And “if a habeas applicant has won retrial below, a claim that

his conduct was constitutionally beyond the power of the

State to punish would require cross-appeal.” Id. In both such

cases, a COA would also have been required. See id. at 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 district court ordered that “the State of

California shall, within 120 days from the entry of this

Judgment, either grant Petitioner a new penalty phase trial, or

vacate the death sentence and resentence the Petitioner in

accordance with California law and the United States

Constitution.” Accordingly, Andrews’s rights under this

judgment were for a new penalty phase trial or resentencing

within a fixed time, and Andrews may urge any potential

claim present in the record that would entitle him to a new

penalty phase trial or resentencing without taking a crossappeal or obtaining a COA. See id. at 800–02.

But none of Andrews’s uncertified claims support the

district court’s judgment. Five of his claims seek a new guilt

phase trial (his Strickland, Brady/Napue, Trombetta, and

cumulative error claims, and a factual innocence claim).18 As

18 While the Supreme Court has not ruled on the question whether a freestanding claim of factual innocence is cognizable in habeas, it has

suggested that success on such a claim (if cognizable) would entitle a
46 ANDREWS V. DAVIS

explained in Jennings, because Andrews won resentencing,

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. Because the district court’s order gave the state the right

to seek the death penalty at a new penalty phase trial,

Andrews’s Lackey and factual innocence claims seek to

“lessen the State’s [rights] under the District Court’s

judgment granting habeas relief.” Id. at 798. Under

Jennings, Andrews must bring a cross-appeal and obtain a

COA to raise these claims as well.

We lack jurisdiction to consider uncertified claims unless

we determine that Andrews “has made a substantial showing

of the denial of a constitutional right” and grant a COA. 

28 U.S.C. § 2253(c)(2); see also Ninth Circuit Rule 22-1(e)

(“Uncertified issues raised and designated [in a petitioner’s

opening brief] will be construed as a motion to expand the

COA . . . .”). This standard requires habeas petitioners to

make a “showing that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted). Because the statute is

jurisdictional, it does not permit “full consideration of the

factual or legal bases adduced in support of the claims”;

rather, courts may make only a “threshold inquiry” to

determine whether the statutory standard is met. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). As the Supreme Court

directed in Miller-El, rather than “[d]eciding the substance of

petitioner to a new guilt phase trial. Herrera v. Collins, 506 U.S. 390,

403, 405, 417 (1993).
ANDREWS V. DAVIS 47

an appeal,” id. at 342, we “look to the District Court’s

application of AEDPA to petitioner’s constitutional claims,”

id. at 336, in light of a “fair interpretation of the record,” id.

at 345, and ask whether “reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong,” id. at 338.

A

We first consider Andrews’s claim that his execution

would violate the Eighth Amendment due to the long delay

between his sentence and execution. Andrews did not raise

this claim in his opening brief on appeal, but moved to file a

supplemental brief raising this claim after a district court

issued a decision holding that under Furman v. Georgia,

408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153

(1976), California’s death penalty system violated the Eighth

Amendment because its “dysfunctional administration”

resulted in “inordinate and unpredictable” periods of delay

before execution, such that executions do not serve a

retributive or deterrent purpose and will be arbitrary. See

Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1061–62, 1069

(C.D. Cal. 2014). We granted his motion, and ordered the

state to respond.

In his brief, Andrews stated that he raised this claim to the

district court as Claim 26. In Claim 26, Andrews had argued

that executing him after 22 years on death row would be cruel

and unusual punishment in violation of the Eighth

Amendment and would serve no retributive or deterrent

penological purpose. Claim 26 also asserted that Andrews

did not cause any unnecessary delays, but merely sought to

vindicate his constitutional rights in a system that produced
48 ANDREWS V. DAVIS

delays. Andrews exhausted this claim by raising it to the

California Supreme Court, which summarily denied it.

The district court rejected this claim on the merits on the

ground that there has been no demonstration of “any support

in the American constitutional tradition or in [Supreme

Court] precedent for the proposition that a defendant can

avail himself of the panoply of appellate and collateral

procedures and then complain when his execution is

delayed,” a quote from Knight v. Florida, 528 U.S. 990

(1999) (Thomas, J., concurring in a denial of certiorari),

relied on by two Ninth Circuit cases, Smith v. Mahoney,

611 F.3d 978, 998 (9th Cir. 2010), and Allen v. Ornoski,

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

SupremeCourt precedent supports a claim of unconstitutional

delay.

On appeal, Andrews argues that the delay in carrying out

the death sentence makes California’s death penalty

unconstitutional both on its face and as applied to him. After

discussing in detail Jones’s reasoning and conclusion that the

California death penalty system is unconstitutional, Andrews

argues that no fairminded jurist could disagree with such a

conclusion in his case, because he has been continuously

confined under sentence of death for more than 30 years, and

the delays are caused by factors outside his control. Andrews

also points to separate statements by individual Supreme

Court justices questioning the constitutionality of the inherent

delay in capital cases. See, e.g., Muhammad v. Florida,

134 S. Ct. 894 (2014) (Breyer, J., dissenting from denial of

certiorari); Johnson v. Bredesen, 558 U.S. 1067 (2009)

(Stevens, J., joined by Breyer, J., statement respecting denial

of certiorari); Lackey, 514 U.S. 1045 (Stevens, J., statement

respecting denial of certiorari) (stating that a prisoner’s claim
ANDREWS V. DAVIS 49

that his 17 years on death row violates the Eighth

Amendment’s prohibition against cruel and unusual

punishment was “not without foundation,” and encouraging

state and federal courts to consider the issue).

Before we can address this claim, we must consider

several procedural hurdles. As a threshold matter, Andrews

did not raise this claim in his opening brief on appeal. While

we generally deem a petitioner to have waived any issue not

raised in an opening brief, see United States v. Ullah,

976 F.2d 509, 514 (9th Cir. 1992), we recognize exceptions

to this general rule. Such an exception 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.

Next, the state argues that Andrews’s claim was not fairly

presented to the California Supreme Court or the district

court, and so is both unexhausted and waived. “A federal

court may not grant habeas relief to a state prisoner unless he

has properly exhausted his remedies in state court.” Dickens

v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en banc)

(quoting Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir.

2003) (en banc)). Exhaustion of constitutional claims

requires that the claims be “fairly presented” in state court,

allowing the state courts an “opportunity to act on them.” Id.

at 1318 (alterations and internal quotation marks omitted). 

To be fairly presented in state court, a claim must include:

1) “a statement of the facts that entitle the petitioner to

relief,” Gray v. Netherland, 518 U.S. 152, 162–63 (1996),

and 2) citations “to either a federal or state case involving the

legal standard for a federal constitutional violation,” Castillo

v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). “A claim

has not been fairly presented in state court if new factual

allegations either fundamentally alter the legal claim already
50 ANDREWS V. DAVIS

considered by the state courts, or place the case in a

significantly different and stronger evidentiary posture than

it was when the state courts considered it.” Dickens, 740 F.3d

at 1318 (citations and internal quotation marks omitted). Two

claims are distinct and must be separately exhausted if the

claims are based on the same facts, but are supported by

distinct constitutional theories. See Gray, 518 U.S. at

163–65. “[G]eneral appeals to broad constitutional

principles, such as due process, equal protection, and the right

to a fair trial, are insufficient to establish exhaustion.” 

Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). But

when claims are “sufficientlyrelated” or “intertwined” so that

raising one clearly implies the other, exhausting one claim

will also exhaust the related claim, so long as the failure to

explicitly raise the related claim was not a “strategic choice.” 

Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004)

(internal quotation marks omitted) (holding that exhaustion

of a procedural challenge to petitioner’s competency

determination exhausted a substantive challenge to the same

determination, though the two challenges relied on two

distinct Fifth Amendment theories); see also Wooten v.

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

The state asserts that there is a distinction between the

sort of Eighth Amendment claim that Andrews raised to the

California Supreme Court and in district court (sometimes

referred to as a Lackey claim), and the Eighth Amendment

claim based on Jones he is raising here, such that the state

courts lacked an opportunity to consider it. Specifically, the

state argues that a Lackey claim is an individual challenge,

based on the theory that executing a prisoner who has spent

many years on death row violates the prohibition on cruel and

unusual punishment of that prisoner, while Jones was based

on the theory that the California system itself creates the
ANDREWS V. DAVIS 51

constitutional infirmity, because inordinate delay makes the

system arbitrary and unable to serve a deterrent or retributive

purpose, in violation of the Eighth Amendment.

We disagree. Andrews’s claim before the state court, the

district court, and on appeal here is essentially the same

constitutional claim: that his right to be free from cruel and

unusual punishment under the Eighth Amendment is violated

by his lengthy incarceration while under a sentence of death. 

Andrews has not introduced any new facts or evidence since

he raised this argument to the state court. Andrews’s

supplemental brief points to Jones’s conclusion that there are

systemic delays in imposing the death penalty throughout the

California system, but uses this conclusion to support his

Lackey claim that “inherent delay in capital cases” renders

executions unconstitutional. Accordingly, Andrews’s

references to Jones do not “fundamentally alter the legal

claim already considered by the state courts.” Dickens,

740 F.3d at 1318 (internal quotation marks omitted). We

therefore conclude that Andrews’s uncertified claim, as

briefed on appeal, is sufficiently related and intertwined with

Claim 26 such that Andrews’s exhaustion of Claim 26

likewise exhausted his current challenge. See Lounsbury,

374 F.3d at 788. Moreover, Andrews raised this same claim

to the district court. Accordingly, Andrews exhausted this

delay claim and did not waive it.

We now consider Andrews’s motion for a COA for this

claim. The district court denied Claim 26 because the state

court’s rejection of this claim was not an unreasonable

application of Supreme Court precedent. No reasonable jurist

would find the district court’s ruling debatable or wrong. See

Slack, 529 U.S. at 484. As we have previously stated, no

clearly established Supreme Court precedent holds that
52 ANDREWS V. DAVIS

inordinate delay in the execution of a capital defendant

constitutes cruel and unusual punishment in violation of the

Eighth Amendment. Allen, 435 F.3d at 958–60. Andrews

argues that the state court’s rejection of his delay claim is

contrary to Furman, 408 U.S. at 311–12 (White, J.,

concurring), and Gregg, 428 U.S. at 188 (plurality opinion). 

But these cases articulate a general Eighth Amendment

standard that the death penalty is unconstitutional if imposed

arbitrarily, or if the penalty itself does not serve the

penological purposes of deterrence and retribution. These

principles do not “squarely address[]” the specific issue

raised by Andrews’s delay claim, and would require a

significant extension of the rationale of Furman and Gregg to

apply in this particular context. See Van Patten, 552 U.S. at

125–26. Therefore, the state court’s rejection of Andrews’s

delay claim was not an unreasonable application of Furman

or Gregg, and reasonable jurists would not dispute the district

court’s conclusion to that effect. See Woodall, 134 S. Ct. at

1706–07.

Because Andrews has not made a “substantial showing”

that his Eighth Amendment rights were violated, see

28 U.S.C. § 2253(c)(2), we deny a COA for this claim.

B

We next turn to Andrews’s four uncertified claims

alleging that trial counsel were ineffective under Strickland

for failing to investigate and present four categories of

evidence.

The first claim relates to the police’s investigation of

suspects before Sanders was arrested and agreed to testify

pursuant to a plea agreement. During the investigation,
ANDREWS V. DAVIS 53

police officers took statements from at least nine witnesses

and informally interviewed many others who provided

information about activities in and around Wheeler’s

apartment in the days leading up to the murders. According

to these statements, Wheeler’s drug customers frequented his

apartment, disturbances were a regular occurrence, and

shootings had occurred in the apartment. The police did not

find any corroborating physical or testimonial evidence

suggesting that any of these drug customers was the killer. 

When investigating Wheeler’s apartment, the police found

fingerprints of individuals who had been seen in the

apartment on the evening the murders occurred, but nothing

linking them to the crime. The police arrested one drug

dealer who worked with Wheeler, but ultimately released

him. When interrogated, this drug dealer denied murdering

Wheeler, but told the police that a Mexican Mafia member

had told him that the Mexican Mafia had murdered Wheeler. 

He did not provide any corroborating evidence to support this

story.

Relying on this evidence, Andrews claims that his trial

counsel were ineffective for failing to investigate and present

evidence that third parties, such as Wheeler’s customers and

fellow dealers, had the motive and opportunity to commit the

murders due to their drug-related dealings with Wheeler. The

state court summarily rejected this claim when it denied

Andrews’s second state habeas petition. The district court

denied relief on this claim.

We conclude that reasonable jurists would not find

debatable or wrong the district court’s conclusion that this

claim fails under Strickland and AEDPA. See Slack,

529 U.S. at 484. The evidence adduced at trial was

overwhelming: Sanders, an eyewitness, testified to the events
54 ANDREWS V. DAVIS

of the murders, Brooks testified regarding Andrews’s

confession, and the evidence established that Andrews’s palm

prints were found on either side of Brandon’s body. In re

Andrews, 52 P.3d at 658. Accordingly, reasonable jurists

would not debate the reasonableness of the state court’s

conclusion that counsel’s failure to further investigate these

suspects did not prejudice Andrews’s defense. See

Strickland, 466 U.S. at 694.

Second, Andrews argues that counsel were ineffective for

failing to investigate or present evidence that semen found on

Brandon’s body could not have come from Andrews. The

district court’s conclusion that the state court did not

unreasonably apply Strickland in rejecting this claim is not

debatable, because the state court could reasonably conclude

that counsel’s failure to introduce such evidence was not

prejudicial. The record shows only that slides containing

semen found on Brandon’s body contain biological markers

that some people secrete and others do not. Andrews does

not secrete these markers, but the record is silent as to

whether Brandon was a secretor. Andrews offers statistical

evidence suggesting that Brandon was probably not a

secretor, but the evidence is not conclusive. Indeed, even

other experts testifying for Andrews noted that what minimal

evidence they obtained was subject to challenge. In light of

the eyewitness testimonyabout Andrews’s involvement in the

murders, and his palm prints next to Brandon’s body,

reasonable jurists would not dispute that the state court

reasonably concluded that any deficiency by defense counsel

was not prejudicial.

Next, Andrews raises two claims relating to the police

investigation of fingerprint evidence found at Wheeler’s

apartment. As explained by the state court on direct appeal,
ANDREWS V. DAVIS 55

two of the police’s fingerprint experts, Howard Sanshuck and

Donald Keir, testified at trial that they compared 50

fingerprints found in Wheeler’s apartment with Andrews’s

fingerprints and palm prints. People v. Andrews, 776 P.2d at

289. The two experts concluded that left and right palm

prints on the kitchen floor on either side of Brandon’s body

belonged to Andrews. Id. Sanshuck’s supervisor, Jimmy

Cassel, had previously reviewed the prints and initially

labeled them as belonging to Wheeler. Id. Sanshuck

discovered the error shortly before Andrews’s first trial. At

the second trial, Cassel stated that the original

misidentification was due to his efforts to process the crime

scene information too quickly, and testified that there was no

similarity between the palm prints found on the kitchen floor

and Wheeler’s prints. Id. The three experts, Sanshuck, Keir,

and Cassel, all testified at the second trial that Andrews’s

palm prints matched the palm prints found on either side of

Brandon’s body. Id. Andrews has never adduced any

evidence to rebut this.

On appeal, Andrews claims that his counsel were

deficient in failing to investigate two different lines of

defense. First, Andrews claims that counsel performed

deficiently by failing to present evidence that Andrews’s

fingerprints could have been left in Wheeler’s apartment due

to his prior visits. Second, Andrews claims that counsel

should have uncovered and used the police’s original

misidentification of his palm prints. Andrews points to other

reports in the record which he claims shows that Keir and a

third analyst, William Leo, also misidentified his fingerprints. 

The district court rejected this claim. In light of the

unrebutted evidence that the palm prints found on either side

of Brandon’s body were Andrews’s prints, no reasonable

jurist would dispute the district court’s determination that the
56 ANDREWS V. DAVIS

state court could reasonably have concluded that counsel’s

handling of the fingerprint evidence did not prejudice

Andrews’s defense. See Strickland, 466 U.S. at 694.

Finally, Andrews claims that counsel were ineffective for

failing to investigate or present evidence regarding his alibi

the night of the murder. The record shows that Andrews gave

a defense investigator the names of two alibi witnesses and

information on how to locate them, but Andrews did not

provide any affidavits from these witnesses to the state court,

or any further information about the nature of their testimony. 

The state court and district court rejected this claim. In light

of the detailed testimony from Sanders and Brooks, the

evidence of Andrews’s palm prints on either side of

Brandon’s body, and the lack of any evidence regarding the

alibi witnesses, no reasonable jurist would dispute that the

state court reasonably applied Strickland in concluding that

counsel’s failure to further investigate these witnesses was

not prejudicial.

Andrews relies on United States v. Valenzuela–Bernalfor

the proposition 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 and favorable to his

defense. 458 U.S. 858, 867 (1982). Therefore, Andrews

claims, the state court erred in rejecting his Strickland claim. 

The district court rejected this argument, and we agree. 

Valenzuela-Bernal held that when the government deports

aliens who could aid a criminal defendant in his defense,

there is no violation of the criminal defendant’s right to

compulsory process under the Sixth Amendment unless the

defendant “make[s]some plausible showing of how [the alibi

witness’s] testimony would have been both material and
ANDREWS V. DAVIS 57

favorable to his defense.” Id. This ruling does not “squarely

address[] the issue,” Van Patten, 552 U.S. at 125–26, or

“establish a legal principle that clearly extends” to the

question whether Andrews’s counsel’s failure to pursue the

alibi witnesses was ineffective assistance of counsel, see

Moses, 555 F.3d at 754 (quoting Van Patten, 552 U.S. at 123)

(alterations and internal quotation marks omitted). 

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

was not an unreasonable application of Valenzuela-Bernal. 

See Woodall, 134 S. Ct. at 1706–07.

In sum, the state court did not unreasonably apply

Strickland in concluding that Andrews did not create a

“substantial, not just conceivable” likelihood of a different

result, or that “any real possibility of [Andrews’s] being

acquitted was eclipsed by the remaining evidence pointing to

guilt,” Richter, 562 U.S. at 112–13; see also Strickland,

466 U.S. at 695–96, and the district court’s determination to

this effect was not debatable. Accordingly, Andrews has not

made a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), and we decline to issue a

COA.

C

Andrews argues that the state court erred in rejecting two

claims that his rights under Brady were violated. Brady

requires the state to disclose “evidence that is both favorable

to the accused and material either to guilt or to punishment.” 

U.S. v. Bagley, 473 U.S. 667, 674 (1985) (internal quotation

marks omitted). Evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Id. at 682. Thus, to establish a Brady violation, a
58 ANDREWS V. DAVIS

defendant must prove: 1) “[t]he evidence at issue [is]

favorable to the accused, either because it is exculpatory, or

because it is impeaching,” 2) the evidence was

“suppressed . . . either willfully or inadvertently,” and

3) prejudice resulted, meaning there is a reasonable

probability that disclosing the evidence to the defense would

have changed the result. See Strickler v. Greene, 527 U.S.

263, 281–82 (1999); Bagley, 473 U.S. at 682.

Andrews claims the state suppressed two pieces of

evidence. First, he contends that the prosecution failed to

disclose a case file maintained by the Los Angeles Police

Department, termed a “murder book,” which contained

material evidence including the third party culpability and

fingerprint evidence also advanced in support of his

ineffective assistance of counsel claims. The state court

could reasonably have rejected this claim because the state

had provided counsel with a chronology of the police

investigation referring to much of the allegedly suppressed

murder book evidence. The district court held the state

court’s conclusion was not an unreasonable application of

Brady. No reasonable jurist could disagree with this

conclusion, because the state court could reasonably have

concluded that the evidence was not suppressed under Brady. 

See United States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir.

1985) (holding the government does not suppress evidence

for purposes of Brady where “the means of obtaining the

exculpatory evidence [was] provided to the defense”). 

Moreover, the state court could have reasonably concluded

that the result of the proceeding would not have been

different even if the evidence had been disclosed to the

defense. See Strickler, 527 U.S. at 280.
ANDREWS V. DAVIS 59

For the same reason, no reasonable jurist could disagree

with the district court’s rejection of Andrews’s second Brady

claim, that the prosecution withheld the fact that Brooks was

subject to charges of welfare fraud. The state court could

have reasonably concluded that defense counsel had

sufficient information to discover that charges had been filed,

because defense counsel knew that Brooks was being

investigated for welfare fraud, and questioned her about it at

trial, outside the presence of the jury. See Dupuy, 760 F.2d

at 1501 n.5.

Andrews also raises claims under Napue, which provides

that the state may not “knowingly use false evidence,

including false testimony” or “allow[] it to go uncorrected

when it appears.” 360 U.S. at 269. According to Andrews,

the state knowingly adduced false testimony from two

fingerprint experts, Keir and Sanshuck. First, Andrews notes

that a report in the record, dated August 4, 1980, states that

Keir reviewed “fingers” from a suspect named “Walters” (the

alias being used by Andrews at the time) and concludes that

the prints were “not made.” This means, Andrews argues,

that Keir lied in identifying the palm prints found by

Brandon’s body as being from Andrews, and also lied when

he testified that he first examined Andrews’s palm prints in

November 1983. The state asserts Keir did not testify falsely,

because the report references fingerprints, while Keir testified

regarding palm prints. Second, Andrews argues that

Sanshuck’s testimony that police policy did not require

photographs to be taken of prints on the surface from which

they were lifted was false, because it contradicted a Los

Angeles Police Department Homicide Manual, dated 1981.19

19 The Los Angeles Police Department Homicide Manual states in

pertinent part:
60 ANDREWS V. DAVIS

The state argues that no false information was knowingly

presented, see id., because the homicide manual used

permissive, not mandatory, language, and because the

manual’s statement did not reflect the police department’s

actual practice, which was the subject of Sanshuck’s

testimony. The district court rejected Andrews’s Napue

claims, and no reasonable jurist could disagree that the state

court could reject these claims based on the reasonable view

of the facts offered by the state. See Taylor v. Maddox,

366 F.3d 992, 999–1000 (9th Cir. 2004) (holding that under

AEDPA, state court fact finding must be not merely wrong,

but “actually unreasonable” and without support in the record

to warrant habeas relief).

D

Andrews makes three claims based on the fact that

between 1993 and 1995, all biological evidence in this case

was destroyed, except for 50 fingerprint cards, one vaginal

slide, one oral slide, and one anal slide. His petition to the

California Supreme Court claimed that the destruction of the

evidence violated his due process rights under Trombetta and

Arizona v. Youngblood, a case that held that the government’s

“failure to preserve potentially useful evidence” before trial

does not violate a defendant’s due process rights unless the

criminal defendant can show that the government acted in bad

faith. 488 U.S. 51, 58 (1988). As Andrews acknowledges,

Note: (A) Photographing Prints

Prints found at the scene of a homicide should be

photographed. The procedure is recommended because

it is much easier to introduce print evidence into court

ifthe print has been photographed, as parts ofthe object

which carried the print may show in the picture.
ANDREWS V. DAVIS 61

the Supreme Court has since held that cases assessing preconviction access to evidence, which would include

Trombetta and Youngblood, do not apply to cases where a

defendant is denied access to evidence after being convicted. 

See Dist. Attorney’s Office for the Third Judicial District v.

Osborne, 557 U.S. 52, 61–62, 68–69, 74 (2009); see also

Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007)

(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 apply Trombetta or Youngblood. 

Andrews relies on Osborne to make a second claim, that the

destruction of evidence violated his due process and Eighth

Amendment rights. We do not consider whether the state

court’s decision was contrary to or an unreasonable

application of Osborne, because it was 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 district court, as the case was

decided between completion of briefing and the court’s

decision. Andrews points to no clearly established precedent

in existence at the time the state court ruled that applies this

principle, and therefore the district court’s rejection of this

claim was not debatable among fair minded jurists.

Andrews’s third claim is that the destruction of evidence

denied him access to the courts to vindicate an underlying

claim of factual innocence. However, as the district court

recognized in rejecting this claim, he cites no Supreme Court

precedent clearly establishing that destruction of evidence

after a defendant is convicted violates a right of access to the

courts. Christopher v. Harbury, on which Andrews relies, is

not on point: it held that a plaintiff’s claim that government

officials misled her in connection with her husband’s
62 ANDREWS V. DAVIS

disappearance did not state a constitutional denial of access

claim upon which relief could be granted. 536 U.S. 403, 407,

415, 418–19 (2002). Accordingly, no reasonable jurist could

dispute that the district court correctly denied this claim.

E

In light of the above, we conclude that no reasonable

jurist would disagree with the district court in rejecting

Andrews’s cumulative error claim. “[T]he fundamental

question in determining whether the combined effect of trial

errors violated a defendant’s due process rights is whether the

errors rendered the criminal defense ‘far less persuasive,’ and

thereby had a ‘substantial and injurious effect or influence’

on the jury’s verdict.” Parle v. Runnels, 505 F.3d 922, 928

(9th Cir. 2007) (citation omitted) (quoting Chambers v.

Mississippi, 410 U.S. 284, 294 (1973) and Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). We agree with the

district court that the California Supreme Court reasonably

determined that any errors, in the aggregate, did not have

such a substantial or injurious effect on the verdict. The

cumulative result of the disputable errors identified by

Andrews would not have made his defense significantlymore

persuasive, since his defense focused on attacking the

credibility of Sanders and Brooks and challenging the

fingerprint and palm print evidence. Reasonable jurists

would not dispute the district court’s conclusion, so no COA

is warranted.

Nor would any reasonable jurist disagree with the district

court’s conclusion that the state court did not err in rejecting

Andrews’s factual innocence claim. The state court could

have reasonably concluded that Andrews’s introduction of

slides showing that biological markers found in the semen on
ANDREWS V. DAVIS 63

Brandon’s body had not been secreted by Andrews and may

not have been secreted by Brandon, described above, was

insufficient to “go beyond demonstrating doubt about his

guilt [to] affirmatively prove that he is probably innocent.” 

See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)

(en banc) (observing that the standard for establishing a

freestanding claim of actual innocence is “‘extraordinarily

high,’ and that the showing [for a successful claim] would

have to be ‘truly persuasive.’” (quoting Herrera, 506 U.S. at

417) (O’Connor, J., concurring)). This claim does not merit

a COA.

In sum, because the district court’s conclusions, under

AEDPA review, are not debatable among reasonable jurists,

Andrews fails to make the “substantial showing of the denial

of a constitutional right” required for a COA to issue, and we

deny his request for one as to each of his uncertified claims.

V

Andrews contends that the district court erred in denying

his motion for an evidentiary hearing on 16 claims (Claims

1–8, 15, 19–23, 25, and 32), which include all but one of the

claims on appeal here.20 We review a district court’s denial

of an evidentiary hearing for an abuse of discretion, Sully v.

Ayers, 725 F.3d 1057, 1067 (9th Cir. 2013), and “may affirm

the district court’s decision on any ground supported by the

record, even if it differs from the district court’s rationale,”

id. (internal quotation marks omitted). In Pinholster, the

Supreme Court stated that “review under § 2254(d)(1) is

20 He did not seek an evidentiary hearing on Claim 26, which raised the

argument that it would violate the Eighth Amendment to execute him after

a long delay.
64 ANDREWS V. DAVIS

limited to the record that was before the state court that

adjudicated the claim on 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 Pinholster, 131 S. Ct. at 1411 n.20

(“Because Pinholster has failed to demonstrate that the

adjudication of his claim based on the state-court record

resulted in a decision ‘contrary to’ or ‘involv[ing] an

unreasonable application’ of federal law, a writ of habeas

corpus ‘shall not be granted’ and our analysis is at an end.”

(alteration in original)). Accordingly, the district court did

not err in denying Andrews’s motion for an evidentiary

hearing.

In light of the foregoing, we REVERSE the district

court’s grant of relief, DISMISS the Eighth Amendment

lethal injection claim as unripe, and DENY the petition for a

COA of the uncertified claims.

REVERSED in part, DISMISSED in part, and

PETITION DENIED in part.