FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE JAMES ANDREWS,

Petitioner-Appellant,

v.

RON DAVIS, Warden,

Respondent-Appellee.

No. 09-99012

D.C. No.

2:02-CV-08969-R

JESSE JAMES ANDREWS,

Petitioner-Appellee,

v.

RON DAVIS, Warden,

Respondent-Appellant.

No. 09-99013

D.C. No.

2:02-CV-08969-R

ORDER AND

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 1, 2017
2 ANDREWS V. DAVIS

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

and Mary H. Murguia, Circuit Judges.

Order;

Opinion by Judge Ikuta;

Dissent by Judge Murguia

SUMMARY*

Habeas Corpus/Death Penalty

The panel withdrew an opinion filed August 5, 2015;

denied as moot a petition for rehearing and petition for

rehearing en banc; and filed a superseding opinion in an

appeal and cross-appeal arising from Jesse James Andrews’s

conviction and capital sentence for three murders.

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

Andrews’s ineffective-assistance claimthat he was prejudiced

by his counsel’s failure to investigate and present additional

mitigating evidence at the penalty phase of his trial. The

panel held that under 28 U.S.C. § 2254(d)(1), the California

Supreme Court did not unreasonably apply Supreme Court

precedent in concluding that Andrews was not prejudiced by

any deficient performance.

The panel dismissed as unripe the sole claim certified by

the district court for appeal – that California’s use of its lethal

injection protocol to execute Andrews would violate his

* 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

Eighth Amendment rights. The panel held that because no

new protocol was in place at the time the district court ruled

on the claim, the district court erred in entertaining the claim.

The panel denied Andrews’s request to certify for appeal

his uncertified claims of unconstitutional delay between

sentencing and execution, ineffective assistance of counsel,

failure to disclose material exculpatory evidence and false

testimony, and destruction of evidence.

The panel held that the district court did not abuse its

discretion in denying Andrews’s motion for an evidentiary

hearing.

Dissenting in part, Judge Murguia would affirm the

district court's order granting Andrews relief due to

ineffective assistance of counsel at the penalty phase of his

trial.
4 ANDREWS V. DAVIS

COUNSEL

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

Francisco, California, for Petitioner-Appellant/CrossAppellee.

Xiomara Costello (argued), Sarah J. Farhat, Shira Seigle

Markovich, and A. Scott Hayward, Deputy Attorneys

General; Lance E. Winters, Senior Assistant Attorney

General; Keith H. Borjon, Supervising Deputy Attorney

General; Dane R. Gillette and Gerald A. Engler, Chief

Assistant Attorneys General; Edward C. DuMont, Solicitor

General; Michael J. Mongan, Deputy Solicitor General;

James William Bilderback II, Supervising Deputy Attorney

General; Office of the Attorney General, Los Angeles,

California; for Respondent-Appellee/Cross-Appellant.

ORDER

The opinion filed August 5, 2015, and reported at

798 F.3d 759, is withdrawn. Because the court’s opinion is

withdrawn, appellant/cross appellee’s petition for rehearing

and petition for rehearing en banc is moot. A superseding

opinion will be filed concurrently with this order. Further

petitions for rehearing and petitions for rehearing en banc

may be filed.
ANDREWS V. DAVIS 5

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 the

district court’s grant of relief on the ineffective assistance

claim because, under 28 U.S.C. § 2254(d)(1), the California

Supreme Court did not unreasonably apply Supreme Court

precedent in concluding that Andrews was not prejudiced by

any deficient performance by his counsel.

I

A

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

Angeles apartment, where they found the bodies of three

murder victims. People v. Andrews, 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
6 ANDREWS V. DAVIS

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
ANDREWS V. DAVIS 7

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] hitting Brandon and

later heard sounds as though they were having

sex. When [Andrews] came out of the kitchen

shortly thereafter, Sanders saw Brandon’s

pants around her ankles.

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

He threatened to kill Wheeler and Brandon

unless Wheeler revealed the location of the

drugs. Wheeler said the ‘dope’ was in the

attic, and pointed out a trap door leading up to

it. Sanders climbed into the attic. While in

the attic, Sanders heard two shots. When he

came down, [Andrews] told him he had shot

Wheeler because the latter had tried to jump

out the window. Sanders asked if Wheeler

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

‘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.
ANDREWS V. DAVIS 9

The prosecution also presented fingerprint evidence. Id. 

Police experts analyzed 50 prints lifted from the apartment;

three prints belonged to Andrews. Id. One fingerprint was

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

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

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

being about a foot from her body.

The defense primarily focused on undermining Sanders’s

credibility. Id. Two jail inmates who had been incarcerated

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

was incarcerated with them, he made statements suggesting

he planned to lie about the murders to shift blame onto

Andrews and away from himself. Id.

The jury deliberated for three days before finding

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

circumstances to be true. Two special circumstances related

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

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

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

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

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

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

1967. Id.

At the penalty phase, both the prosecutor and defense

counsel made brief presentations. The prosecutor presented

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

jury had already found that Andrews had been convicted of

murder in 1967. The parties also stipulated that Andrews had

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

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

been convicted of armed robbery in May 1968, convicted of

escape in November 1969, and convicted of robbery in June

1977. Id. The stipulation did not describe the facts of the

offenses underlying these additional convictions. The

prosecution also submitted photographs of the dead bodies of

Patrice Brandon and Ronald Chism as they were found by the

police in the apartment; the photos had been excluded at the

guilt phase on the ground theywere unduly inflammatory. Id. 

Finally, the parties stipulated that Andrews’s birth date was

July 2, 1950. Id.

The defense evidence consisted of two sworn statements

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

underlying the incident in September 1966 that formed the

basis of Andrews’s 1967 conviction for murder. According

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

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

and the companion fired three shots, killing the grocery store

clerk. Id.

In his closing argument, defense counsel focused on

mitigating circumstances. He argued that Andrews’s crimes

were unsophisticated, occurred several years apart, and all

involved the unexpected escalation of a planned robbery. Id. 

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

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

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

blameworthy because the murders occurred while Andrews,

Sanders, Wheeler, and Brandon were under the influence of

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

other murderers had received life without the possibility of

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

despite more blameworthy conduct. Id. at 659. He pointed

out that in this very case, Sanders received a sentence of only
ANDREWS V. DAVIS 11

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

rebuttal.

After one day of deliberations, the jury returned a verdict

imposing the death penalty for each of the three murder

counts. The court sentenced Andrews to death on June 8,

1984. The California Supreme Court affirmed the conviction

and sentence on direct appeal on August 3, 1989. People v.

Andrews, 776 P.2d at 285, 288.

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.

1

The California Supreme Court appointed a referee to take

evidence and make factual findings on six questions related

to Andrews’s penalty phase ineffective assistance of counsel

claim. In re Andrews, 52 P.3d at 659. Under California law,

“[b]ecause appellate courts are ill-suited to conduct

evidentiary hearings, it is customary for appellate courts to

appoint a referee to take evidence and make

recommendations as to the resolution of disputed factual

issues.” People v. Romero, 883 P.2d 388, 393 (Cal. 1994), as

modified on denial of reh’g (Jan. 5, 1995). While a referee’s

findings on factual questions are not binding on the California

Supreme Court, they “are entitled to great weight when
12 ANDREWS V. DAVIS

supported by substantial evidence.” In re Johnson, 957 P.2d

299, 307 (Cal. 1998). The six questions provided to the

referee were:

1. What mitigating character and background

evidence could have been, but was not,

presented by petitioner’s trial attorneys at his

penalty trial?

2. What investigative steps by trial counsel, if

any, would have led to each such item of

information?

3. What investigative steps, if any, did trial

counsel take in an effort to gather mitigating

evidence to be presented at the penalty phase?

4. What tactical or financial constraints, if

any, weighed against the investigation or

presentation of mitigating character and

background evidence at the penalty phase?

5. What evidence, damaging to petitioner, but

not presented by the prosecution at the guilt or

penalty trials, would likely have been

presented in rebuttal, if petitioner had

introduced any such mitigating character and

background evidence?

6. Did petitioner himself request that either

the investigation or the presentation of

mitigating evidence at the penalty phase be

curtailed in any manner? If so, what

specifically did petitioner request?
ANDREWS V. DAVIS 13

In re Andrews, 52 P.3d at 659.

The referee received the testimony of more than

50 witnesses over the span of six years. Id. at 660. As a

threshold matter, the referee pointed out two factors that the

California Supreme Court should take into account in

evaluating the information obtained in the reference hearing. 

First, the referee acknowledged that “[t]he length of time

available to develop, expand and refine the depth of the

evidence presented at this reference hearing obviously creates

an artificial setting and this court notes that the abundance

and massiveness of the evidence presented could not and

would not have been the same in an original trial.” Id. at 660

n.2. Among other things, “[s]trategic considerations alone

would have undoubtedly resulted in a greater refinement of

the quality of evidence presented.” Id. Second, the referee’s

consideration of counsel’s work was hindered by the fact that

the lead counsel, Gerard Lenoir, died before the referee

conducted the hearing, and only the secondary counsel,

Halvor Miller, was available. Id. at 663 n.7. Miller could not

recall the full scope of Lenoir’s investigation. Id. at 663.

In her report, the referee provided one-paragraph

summaries and detailed factual findings in response to each

question. The California Supreme Court both summarized

the referee’s findings and explained the weight it gave to

these findings. Id. at 660–65.

In response to the first question (what mitigating

character and background evidence could have been, but was

not, presented by petitioner’s trial attorneys at his penalty

trial), the referee identified three broad categories of

mitigating evidence that were available but not presented to

the jury: Andrews’s family background; the conditions of his
14 ANDREWS V. DAVIS

confinement in a juvenile reform school and in the Alabama

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

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

the following regarding Andrews’s background. When he

was very young, Andrews’s alcoholic parents separated, and

his mother left him to be raised by his grandparents and aunt

in a large family home with his siblings and cousins, located

in a poor, segregated neighborhood of Mobile, Alabama. Id. 

The referee described Andrews’s grandfather as “loving,

benevolent, and responsible,” id., and the court added that

Andrews’s mother regularly sent money and clothing to her

children and that Andrews’s upbringing and early family life

were “relatively stable and without serious privation or

abuse,” id. at 670. When Andrews was around nine or ten,

his mother returned home with children by another marriage,

of whom Andrews was jealous. Id. at 660, 670. Around that

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

died. Id. at 660 (internal quotation marks omitted). Andrews

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

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

Meigs, formally the Alabama Industrial School for Negro

Children. Id.

Summarizing the referee’s report, the California Supreme

Court stated that “[a]t Mt. Meigs, petitioner encountered

appalling conditions.” Id. According to the referee’s report,

one witness described it as “a farming operation and a penal

colony for children,” while others described “inhuman

conditions,inadequate food and clothing and severe beatings”

with “sticks, broom handles, tree limbs, and hoe handles . . .

or fan belts.” Among other things, the referee found that

Andrews “was subjected to beatings, brutality, inadequate

conditions and sexual predators.” Id. at 661. Further, “[h]is

passiveness and small physique caused him to be a target of
ANDREWS V. DAVIS 15

older, tougher boys, from whom no protection or separation

was provided.” Id.

After his release from Mt. Meigs, Andrews began to

associate with Freddie Square, an older boy with

“manipulative and criminal tendencies.” Id. In September

1966, three months after Andrews’s release, Andrews and

Square entered a grocery store, drew guns, and announced

that they were conducting a robbery. Id. When “the store

clerk placed his hand down the front of his apron,” Square

shot the clerk, killing him. Id. Andrews “acted as a lookout

in the robbery, but played a more active role when he and

Square robbed a taxi driver during their getaway,” and used

the taxi as a getaway car. Id. At the reference hearing, Harry

Woodall, the driver of the stolen taxi, testified that Andrews

and Square robbed him at gunpoint. Id. at 665. While

pointing a gun at Woodall, Andrews twice said, “Let’s shoot

him.” Id. Andrews and Square stole Woodall’s wallet, then

ordered him out of the taxi and fired three shots at him;

Andrews fired at least two of the shots. Id. In 1967,

Andrews was convicted of murder based on the grocery store

incident, and in 1968, he was convicted of armed robbery of

the taxi driver. Id. at 661 n.4. Just before he turned 18, he

was committed to Alabama state prison. Id. at 661. He

escaped from prison and was convicted of that offense in

1969. Id. at 659. He remained in prison until 1976.

Summarizing the referee’s findings about conditions in

the four different prisons in which Andrews was confined

over ten years, the California Supreme Court stated:

[The referee] described conditions in these

institutions as abysmal, characterized by

severe overcrowding, racial segregation,
16 ANDREWS V. DAVIS

substandard facilities, no separation of the

tougher inmates from younger or smaller

inmates, constant violence, the persistent

threat of sexual assaults and the constant

presence of sexual pressure, the availability

and necessity of weapons by all inmates, and

degrading conditions in disciplinary modules. 

[Andrews] not only received beatings but was

also personally subjected to sexual assaults.

Id. at 661 (internal quotation marks omitted). The referee

stated that Andrews “was rarely the instigator of violence,”

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

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

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

also “appeared to adjust well when the structure permitted”

and, “when circumstances permitted, he tended to hold

positions of responsibility.” Id. At the same time, however,

Andrews “was personally involved in violence, including the

stabbings of two inmates who had been threatening him.” Id.

at 661 (internal quotation marks and alterations omitted).

Shortly after his release from prison in 1976, Andrews

engaged in an attempted robbery of a laundry. Id. According

to testimony at the reference hearing:

Mobile Police Officer Pettis testified that on

March 23, 1977, he responded to a robbery

call. Entering the store from which the call

came, he and other officers saw [Andrews]

holding a crying young woman hostage with

a cocked gun at her head. He told the officers

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

going to get shot, I’m going to shoot.’” The
ANDREWS V. DAVIS 17

officers withdrew. Ultimately, [Andrews]

surrendered to the officers after releasing the

young woman and another woman whom he

had also held hostage.

Id. at 665. Andrews was arrested for the robbery and held in

Mobile County Jail. Id. at 661. After a failed attempt to

escape from the jail, he succeeded in escaping on his second

try, and fled to California. Id. at 661 & n.5.

In California, Andrews met Debra Pickett, with whom he

had a stable relationship. Id. at 661. The couple had a child,

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

December 1979, Andrews had resumed using cocaine and 

left his job and family. Id. Soon after, he committed the

three murders at issue here. Id.

The referee also described the testimony from mental

health experts that could have been presented at the penalty

phase. Summarizing the referee’s report, the California

Supreme Court noted that defense experts diagnosed

Andrews with a range of mental disorders, including attention

deficit disorder, post traumatic stress disorder (PTSD), and

mild to moderate organic brain impairment, in part due to

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

defense experts opined that Andrews’s learning disability, the

adverse circumstances of his childhood, the impact of the

correctional systems, and the PTSD made his commission of

the murders and sexual assault more understandable and less

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

examples of how Andrews’s impairments and the brutal

conditions of incarceration made it difficult for him to avoid

getting into trouble with the law. Id. at 661–62, 670. For

example, one defense psychiatrist testified that Wheeler, one
18 ANDREWS V. DAVIS

of the three victims in the December 1979 murders, had

called Andrews a “faggot” a few days before the murders

occurred, and Andrews’s PTSD would predispose him to

overreact to the slur. Id. at 680. The psychiatrist concluded

that Andrews was “affected by serious emotional disturbance

when he committed the murders.” Id.

The California Supreme Court then recounted the

referee’s findings on questions two, three, and four. These

questions addressed the investigative steps trial counsel took

to gather mitigating evidence for the penalty phase, steps the

trial counsel could have taken to do so, and the constraints

that weighed against the trial counsel investigating or

presenting mitigating character and background evidence at

the penalty phase. Id. at 662–64. According to the referee,

trial counsel hired defense investigators for the guilt phase,

while the counsel themselves did the investigative work for

the penalty phase. Id. at 663. The trial counsel took two trips

to Mobile, one in 1983 and another in 1984. On the first trip,

they spent a day searching court records for Andrews’s prior

convictions and documents relating to his background. Id.

They also searched for relatives and potential witnesses in

Andrews’s neighborhood. Id. On the second trip, counsel

obtained information about Andrews’s prior murder

conviction at the county courthouse. Id. Counsel also

traveled to Pensacola, Florida, where they interviewed

Andrews’s mother. Id. During the course of the interview,

they obtained information that Andrews was a slow learner,

that his grandparents raised him, and that he started getting

into trouble as a teenager. Id. Miller remembered telling

Andrews’s mother that if he obtained Andrews’s permission

to obtain information from familymembers or other contacts,

he or Lenoir would contact her for further information. Id.
ANDREWS V. DAVIS 19

The California Supreme Court also summarized the

referee’s findings about the constraints placed on trial counsel

in conducting their penalty phase investigation, though the

death of Lenoir limited this aspect of the referee’s

investigation. Id. at 663–64. According to the referee, there

were tactical, rather than financial, constraints. Id. Miller

recalled the main tactical constraint as “the adamancy of

petitioner’s opposition to having his family, and in particular

his mother, testify at the trial.” Id. at 664. According to the

referee, “Mr. Miller was very consistent in his testimony

regarding petitioner’s refusal to cooperate in this area, and

this position is supported circumstantiallybystatements made

by petitioner as well as testimony from the prosecutor.” Id.

Miller stated that Andrews had threatened to disrupt the

proceedings if his directions were not followed, and both

counsel believed this threat was genuine. Id. “Acceding to

these wishes,” neither Miller nor Lenoir “pursued a full

investigation of petitioner’s background or family and never

learned the names of family members with one or two

exceptions.” Id.

In addition to the constraints imposed by Andrews, the

referee found that counsel were concerned about the effects

of using prisoners as witnesses. Id. Miller doubted that

jurors would be impressed by the credibility and demeanor of

the prisoners, and he was concerned that calling prisoners as

witnesses would risk disclosure of Andrews’s misconduct in

prison. Id. The referee found that Andrews had been

involved in two stabbings of other inmates and had escaped

from custodial facilities on two occasions. Id. Further, the

referee found that the inmates who provided testimony at the

reference hearing had “substantial violent criminal records

and these offenses included a substantial number of escapes.” 

Id. Finally, Miller testified that he and Lenoir decided not to
20 ANDREWS V. DAVIS

present evidence about Andrews’s upbringing, because the

house and neighborhood in which Andrews grew up

resembled the house and neighborhood in which Miller was

raised, and so counsel thought a “poverty-presentation”

lacked viability. Id.

The California Supreme Court also summarized the

referee’s views on additional investigative steps that counsel

could have taken. Id. at 662–63. The referee found that

obtaining information regarding the circumstances of

Andrews’s upbringing, the impact of the correctional

facilities in Alabama and Andrews’s adult experiences, and

the psychiatric aspects of Andrews’s history did not call for

“any extraordinary efforts beyond simple persistence.” Id. at

662. The referee believed that Andrews’s mother could have

provided more information about Andrews’s upbringing and

directed counsel to other family members and acquaintances

who could have provided general information regarding

schooling issues. Id. Counsel could have obtained addresses

and information about additional witnesses through publicly

available documents or through word of mouth. Id. The

referee also believed that “[s]everal areas of inquiry were

available relating to petitioner’s experiences in the

correctional system in Alabama.” Id. Counsel could have

obtained prison records from the juvenile and adult

correctional systems and could have contacted inmates

referenced in those records. Id. Or counsel could have

conducted “standard legal research of public records relating

to lawsuits involving these institutions.” Id. While

acknowledging that “petitioner’s cooperativeness was a

significant issue,” the referee found that counsel could have

developed the information presented at the reference hearing

“through outside sources in the absence of any cooperation

from the petitioner.” Id. at 663.
ANDREWS V. DAVIS 21

In addition, although there was “no significant written

history” in the area of mental health, and there was little

evidence of “family members having mental impairments,”

the referee found that counsel could have appointed

psychiatric experts. Id. at 662. The referee acknowledged

that “[a]ny such inquiry may not necessarily have resulted in

the availability of evidence of the diagnoses of organic brain

impairment, learning disorders, or of post traumatic stress

disorder.” Id. According to the referee, “[t]he quality of

standardized personality tests was not the same, the

knowledge of post traumatic stress disorder was in an infancy

stage, and the resulting diagnosis may not necessarily have

been favorable to the petitioner.” Id. at 662–63.

In addressing question five (what evidence, damaging to

petitioner, but not presented by the prosecution at the guilt or

penalty trials, would likely have been presented in rebuttal, if

petitioner had introduced any such mitigating character and

background evidence), the referee found that the

prosecution’s rebuttal presentation could have included

evidence about two of Andrews’s prior convictions. Id. at

664. First, the prosecutor could have presented testimony

from the taxi driver in the 1968 robbery, who would have

testified he heard Andrews say “[l]et’s shoot him,” and then

fired at least two shots at him. Id. at 665. Second, the

prosecution could have informed the jury about Andrews’s

attempt to rob a laundry business following his release from

prison in 1976, which involved holding two women hostage,

one with a gun to her head. Id. at 661, 665. The jury had

heard that Andrews was convicted of these offenses, but it did

not hear the facts on which the conviction was based; the

prosecutor could have introduced a complete description of

the underlying events as aggravating evidence, to show
22 ANDREWS V. DAVIS

Andrews’s greater moral culpability for the rape and triplemurder. Id. at 659, 664.

Further, the referee determined that the prosecution could

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

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

testimony that Andrews did not suffer from PTSD, but rather

suffered from antisocial personality disorder, resented

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

state expert would have testified that Andrews’s ability to

hold a job and maintain a stable relationship with Debra

Pickett before he committed the murders strongly indicated

that he had not suffered brain damage. Id. In addition, the

expert would have testified that Andrews’s “behavior on the

night of the murders showed planning and thought, and it was

therefore unlikely that petitioner was under the influence of

PCP when he committed the murders.” Id.

Finally, in response to question six (did petitioner himself

request that either the investigation or the presentation of

mitigating evidence at the penalty phase be curtailed in any

manner, and, if so, what specifically did petitioner request),

the referee concluded that there was no doubt that Andrews

“adamantly” refused to allow counsel to approach his mother

and family or to have them testify. Id. This conclusion was

based on the trial records and the consistent testimony of

witnesses at the reference hearing. Id. In response to specific

questioning from the trial court “regarding his reluctance to

have his mother called,” and in the face of the trial court’s

advice that his mother’s testimony would be valuable,

Andrews “was very precise in his response, telling the judge

that he fully understood and that this was his choice and no

one else’s.” Id. (emphasis omitted). The referee further

noted that the lead counsel, Lenoir, “represented on the
ANDREWS V. DAVIS 23

record at trial that petitioner refused to have his mother called

and that he ‘had his reasons,’ which Mr. Lenoir did not wish

to disclose to the court.” Id. The referee also found that

“petitioner went so far as to threaten to disrupt the trial if his

mother were called.” Id. Andrews’s opposition to having

counsel involve his family was corroborated by his older

sister and uncontradicted by his mother.2

 Id.

2

After considering “the record of the hearing, the referee’s

factual findings, and petitioner’s original trial,” the California

Supreme Court concluded that “petitioner received

constitutionally adequate representation, and any inadequacy

did not result in prejudice.” Id. at 659.

In reaching this conclusion, the court began by stating the

requirements for an ineffective assistance of counsel claim

under Strickland v. Washington, 466 U.S. 668 (1984). First,

the court stated that “[t]o prove a claim of ineffective

assistance of counsel at the penalty phase trial, the petitioner

must establish that counsel’s performance [(1)] did not meet

an objective standard of reasonableness under prevailing

professional norms and [(2)] that he suffered prejudice

thereby.” In re Andrews, 52 P.3d at 667 (internal quotation

marks omitted).

2 At the reference hearing, Andrews disputed the finding that he did not

want his family involved, but the California Supreme Court noted that “the

referee credited Miller’s testimony that [Andrews] objected not only to his

mother’s involvement, but also to that of any relatives,” and gave the

referee’s credibility determination the “great weight” to which it is entitled

under California law. Id. at 667.
24 ANDREWS V. DAVIS

Turning first to the deficiency prong, the California

Supreme Court concluded that Andrews had not established

that his counsel’s performance was defective. Its reasoning

was as follows. Under Strickland, “the Supreme Court

specifically addressed counsel’s duty to investigate and made

clear courts should not equate effective assistance with

exhaustive investigation of potential mitigating evidence.” 

Id. at 668. Any judicial scrutiny “must be highly deferential,”

and courts must avoid second guessing counsel’s assistance

and must “eliminate the distorting effects of hindsight.” Id.

at 667 (quoting Strickland, 466 U.S. at 689). Further, while

“counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular

investigations unnecessary,” the Supreme Court made clear

that “a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying

a heavy measure of deference to counsel’s judgments.” Id. at

668 (quoting Strickland, 466 U.S. at 690–91). Moreover,

“valid strategic choices are possible even without extensive

investigative efforts.” Id. (quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Finally, “[t]he reasonableness of counsel’s

actions may be determined or substantially influenced by the

defendant’s own statements or actions,” and may be “based,

quite properly, on informed strategic choices made by the

defendant and on information supplied by the defendant.” Id.

(quoting Strickland, 466 U.S. at 691).

Applying this deferential standard in light of the evidence

developed by the referee, the California Supreme Court

concluded that “counsel’s decision not to mount an all-out

investigation into petitioner’s background in search of

mitigating circumstances was supported by reasonable

professional judgment.” Id. at 669 (quoting Burger, 483 U.S.

at 794–95).
ANDREWS V. DAVIS 25

First, the California Supreme Court found that counsel

could have reasonably decided not to pursue information

from Andrews’s family in light of Andrews’s decision to

curtail such an investigation. The court noted that while “the

referee found that counsel could have discovered the

mitigating evidence presented at the reference hearing with

‘simple persistence,’” the evidence showed that Andrews

limited the investigation counsel could undertake by insisting

that counsel not involve his family. Id. at 668. Counsel were

within the range of professional competence in complying

with Andrews’s wishes, because under California law, “an

attorney representing a defendant at the penalty phase of a

capital case is not required to present potentially mitigating

evidence over the defendant’s objections.” Id. (quoting

People v. Kirkpatrick, 874 P.2d 248, 262 (Cal. 1994)).3

Further, to the extent counsel interviewed Andrews’s

mother and attempted to contact family members despite

Andrews’s objection, the court found that counsel could have

reasonably concluded that the information they obtained was

not powerfully mitigating. Id. at 670. Andrews’s mother

“did not abandon him, but left him with an extended family

including his ‘loving and responsible’ grandfather, regularly

3

 Despite the constraints imposed by Andrews, the California Supreme

Court found that Andrews’s counsel traveled to Mobile, Alabama twice

to search for relatives, potential witnesses, and legal documents, and also

traveled to Pensacola, Florida to interview Andrews’s mother. In re

Andrews, 52 P.3d at 663. The dissent concedes as much, Dissent at 97–98

n.1, so its finding that Andrews’s counsel conducted “virtually no penalty

phase investigation” is merely an expression of the dissent’s negative

evaluation of counsel’s efforts. Dissent at 97. But because the California

Supreme Court determined that counsel was reasonable in not pursuing

further information, the only question raised under the Antiterrorism and

Effective Death Penalty Act (AEDPA) is whether this was an objectively

unreasonable application of Strickland. See Richter, 562 U.S. at 101.
26 ANDREWS V. DAVIS

sent money and clothing to her children, and returned several

years later to remain in the family home.” Id. The testimony

from family members generally showed Andrews’s early

upbringing and family life “to be relatively stable and without

serious privation or abuse. All but one of his siblings

completed high school, and only one had a minor brush with

the law.” Id. Counsel’s preliminary investigation showed

that Andrews’s childhood was not mitigating: “Miller viewed

petitioner’s childhood surroundings as unimpressive because

he found them comparable to his own.” Id. at 673. Andrews

“did not suffer a home environment that would place his

crimes in any understandable context or explain his resorting

to crime every time he was released or escaped from prison.” 

Id. at 670. Moreover, his stable conditions in California

could have led the jury to conclude that Andrews’s

“abandonment of his own son to pursue a cocaine habit and

his former criminal ways would belie the suggestion he

merited sympathy due to his parents’ drinking and

abandonment and his grandfather’s death.” Id. at 671. 

“Under these circumstances, counsel could reasonably reject

a background mitigation strategy in favor of an alternate basis

to plead for petitioner’s life.” Id. at 673.

Second, the California Supreme Court found that counsel

could have reasonably decided not to develop evidence

regarding the conditions of Andrews’s confinement. Id. at

670–71.4 Relying in part on the referee’s findings, the

4 Relying on the opinion of the dissenting Justice in the California

Supreme Court’s opinion in this case, In re Andrews, 52 P.3d at 681

(Kennard, J., dissenting), the dissent claims that Andrews’s attorneys

rendered ineffective assistance because they allegedly failed to ask

Andrews any questions regarding his prison conditions. Dissent at

100–101. But under AEDPA, we do not perform such a de novo review

of a petitioner’s Strickland claim; rather, we ask only whether the state
ANDREWS V. DAVIS 27

California Supreme Court noted that while the conditions in

which Andrews had been incarcerated “leaves no doubt

petitioner endured horrifically demeaning and degrading

circumstances,” counsel could reasonably conclude that

introducing evidence about these conditions from former

inmates could have “proved a double-edged sword,” because

the jury could have had negative impressions of the witnesses

and the evidence that would color their views of Andrews. 

Id. The witnesses testifying to the conditions under which

Andrews was incarcerated included “one death row inmate,

with serious felony records for murder, rape, and armed

robbery,” as well as many inmates who “had themselves

engaged in brutality while in prison and escaped with some

frequency.” Id. at 671. The jury could have drawn an

“unfavorable comparison” with Andrews in both cases, and

“[r]ather than engendering sympathy, the evidence could well

have reinforced an impression of him as a person who had

become desensitized and inured to violence and disrespect for

the law.” Id. Moreover, the witnesses’ “criminal histories

would automatically subject them to impeachment.” Id. The

court also found that hearing such witnesses testify about

brutal conditions in Alabama would “raise the question of

why petitioner so readily resorted to crime when he escaped

the brutal and predatory conditions in Alabama and relocated

to California, where he found work and started a family.” Id. 

Counsel could also reasonably conclude that having inmates

describe the Alabama prison conditions would “potentially

open the door to additional evidence of petitioner’s criminal

court’s application of Strickland was objectively unreasonable. 

Harrington v. Richter, 562 U.S. 86, 101 (2011).
28 ANDREWS V. DAVIS

past.” Id. at 673.5 Among other things, “evidence of prison

conditions could have led to the jury’s learning of petitioner’s

second escape from custody,” which could have “created a

danger defense counsel reasonably sought to avoid.” Id. at

669.6

5 The dissent erroneously argues that no reasonable counsel could have

decided to avoid the dangers ofrelying on prisoner testimony because “the

Mt. Meigs evidence was not dependent upon testimony from prisoners”

but rather could have been offered by the “experts and respected

observers” who testified at Andrews’s state court evidentiary hearing. 

Dissent at 99–100, 102–103. In reaching this conclusion, the dissent

substitutes its de novo finding for the findings of the California Supreme

Court, which held that “whatever mitigating evidence may have been

disclosed by pursuing the conditions of incarceration petitioner

experienced, counsel knew such evidence would come primarily from the

testimony of petitioner’s fellow prisoners, many of whom were hardened

criminals with serious felony records.” In re Andrews, 52 P.3d at 668–69. 

Under 28 U.S.C. § 2254(d)(2), a federal court “may not second-guess” a

state court’s factual findings unless the state court was “not merely wrong,

but actually unreasonable” in light of the record before it. Taylor v.

Maddox, 366 F.3d 992, 999 (9th Cir. 2004). The dissent could not

reasonably conclude that the California Supreme Court’s conclusion was

objectively unreasonable given that it is not clear that the “experts and

respected observers” who testified at the state court evidentiary hearing,

which occurred almost a decade after Andrews’s sentencing hearing,

would have been available to testify at Andrews’s sentencing hearing in

1984.

6 The dissent argues that the California Supreme Court was unreasonable

in excusing counsel’s failure to discover Mt. Meigs evidence based on

Andrews’s refusal to involve his family. Dissent at 99–100. This strained

reading of the California Supreme Court’s broad statement about

mitigating evidence is itself unreasonable. In fact, the California Supreme

Court never stated that there was a connection between family restrictions

and prison conditions. Rather, the court concluded that Andrews’s

restrictions on his family’s involvement would have limited counsel’s

ability to develop Andrews’s background and childhood. In re Andrews,

52 P.3d at 662 (noting that, if permitted, “[t]rial counsel could have
ANDREWS V. DAVIS 29

Third, the California Supreme Court found that counsel

could have reasonably decided not to introduce expert

testimony on Andrews’s mental health because “[t]he

prosecutor could have exploited the testimony of the mental

health experts to petitioner’s disadvantage.” Id. at 670. The

court noted that one of the experts at the reference hearing

testified “that convicts tend to react with rage to perceived

insults, behavior they find difficult to shed even when

discharged,” and while this may have explained Andrews’s

actions, “it does not necessarily create a sympathetic

impression” because “[t]he jury could just as readily infer

petitioner was unable to control lethal impulses on the

slightest provocation.” Id. Moreover, there would have been

a battle of the experts regarding whether Andrews had

suffered any brain damage at all. Id. And “[a]s the reference

hearing demonstrated, a mental health penalty defense would

also have given the prosecution several opportunities to

repeat the circumstances of the crime as well as petitioner’s

past criminality in questioning the experts on both direct and

cross-examination as to whether petitioner exhibited an

antisocial personality rather than some form of mental

impairment.” Id.

Finally, the California Supreme Court concluded that

counsel had been reasonable in adopting the strategic

contacted petitioner’s family to develop his background and childhood”). 

On the other hand, the California Supreme Court concluded that

“[e]vidence relating to the impact of the juvenile and adult correctional

systems could have been developed by obtaining prison records and

contacting inmates referenced in those records as well as conducting

standard legal research of public records relating to lawsuits involving

these institutions,” id. (emphasis added), and the main constraint on using

this evidence was “the inherent problems of calling prisoners as

witnesses,” id. at 664.
30 ANDREWS V. DAVIS

approach of minimizing Andrews’s “culpability by

circumscribing his background and mitigating his criminal

responsibility.” Id. at 669. In implementing this strategy,

counsel portrayed Andrews as “a follower rather than

violently antisocial” and “urged the jury to consider in

mitigation the fact that others who had committed more

heinous multiple murders had been sentenced to life without

possibility of parole and that [Andrews’s co-defendant]

received a comparatively lighter sentence.” Id.7 According

to the California Supreme Court, this approach “not only

presented a reasonable case for sparing petitioner’s life under

the circumstances, but foreclosed the introduction of

substantial aggravating evidence in rebuttal or on crossexamination that could have undermined the defense by

depicting petitioner as aggressive and desensitized to

violence.” Id. (citation omitted).8

7 The dissent criticizes the California Supreme Court for concluding that

Andrews’s counsel adopted a reasonable strategy by, among other things,

portraying Andrews as a follower who was less culpable than others. 

Relying again on the dissenting California Supreme Court Justice, the

dissent claims that “the only evidence before the jury was that petitioner

was the instigator rather than a follower.” Dissent at 104 (quoting In re

Andrews, 52 P.3d at 682 (Kennard, J., dissenting)). Once again, the

dissent’s de novo fact finding is contrary to the California Supreme

Court’s reasonable conclusion based on evidence that the jury had before

it a stipulation regarding Andrews’s role in the 1966 grocery store robbery

which portrayed Andrews as a follower. In re Andrews, 52 P.3d at 659.

8 Andrews and the dissent argue that the prosecutor would not have put

on additional rebuttal evidence. Dissent at 107, 115. But the California

Supreme Court rejected this argument, finding that the presentation of

mitigating evidence would have prompted the prosecutor to shift the focus

of his penalty phase case, put on additional witnesses, and use crossexamination and closing argument to further damage Andrews’s

mitigation case. In re Andrews, 52 P.3d at 665–66. Contrary to the

dissent, Dissent at 108 n.5, federal courts must defer to the state court’s
ANDREWS V. DAVIS 31

Given these valid reasons for not pursuing Andrews’s

background, and the fact that “a lengthy presentation of a

broad range of witnesses describing in detail various aspects

of petitioner’s background” would “have been atypical for a

penalty phase defense” at the time of the trial, id., the court

concluded that “counsel’s strategic decision to limit the scope

of their investigation of mitigating background evidence and

not to present such evidence at the penalty phase came within

‘the wide range of reasonable professional assistance,’” id. at

671 (quoting Strickland, 466 U.S. at 689).

3

The California Supreme Court next confirmed that this

conclusion was consistent with then clearly established

factual findings, see, e.g., 28 U.S.C. § 2254(e) (“In a proceeding instituted

by an application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be correct.”). The

California Supreme Court noted that it was “clear from the record that

much damaging testimony regarding petitioner’s own violent conduct in

prison and other circumstances desensitizing inmates to violence could

have, and undoubtedly would have, been elicited on cross-examination.” 

Id. at 666. Among other evidence, the testimony of the taxi driver in the

1968 robbery would have rebutted witnesses who characterized petitioner

as a follower by “demonstrat[ing] petitioner could and did take the

initiative for violence” and the police officer’s testimony in the 1977

laundry robbery would have shown “petitioner’s lack of reluctance to use

violence to obtain his ends.” Id. The court therefore concluded that

“substantial evidence supports the referee’s finding that presenting the

mitigating evidence would have opened the door to damaging rebuttal.” 

Id. In repeating Andrews’s claim that the prosecutor fromAndrews’s trial

would not have introduced rebuttal witnesses had the defense presented

evidence of Andrews’s prison conditions, Dissent at 107, 115, the dissent

errs by conducting its own de novo review and failing to defer to the state

court’s factual findings under 28 U.S.C. § 2254(d)(2) and (e).
32 ANDREWS V. DAVIS

Supreme Court precedent, Bell v. Cone, 535 U.S. 685 (2002),

Williams v. Taylor, 529 U.S. 362 (2000), and Burger v. Kemp,

483 U.S. 776 (1987). The court provided the following

reasoning. In Burger, the Supreme Court held that counsel

was not deficient even though he declined to present evidence

of the defendant’s neglectful, violent family or his mental and

emotional deficiencies, because: (1) introducing such

background evidence raised a risk that aggravating

information would be introduced, and (2) counsel had

adopted the reasonable strategy of minimizing his client’s

culpability in light of the co-defendant’s dominance. Id. at

672–73 (citing Burger, 483 U.S. at 791–94). The California

Supreme Court determined that Andrews’s counsel had even

more compelling justifications for not introducing

background evidence than Burger’s counsel, given that

Burger endured a worse childhood than Andrews, was a

teenager at the time of the murder, had committed only one

murder, and was not primarily responsible for the decision to

kill. Id. at 673.

Next, the California Supreme Court turned to Bell v.

Cone, 535 U.S. 685 (2002). In re Andrews, 52 P.3d at 673. 

In Bell, counsel provided no penalty phase evidence at all and

waived closing argument. Id. (citing Bell, 535 U.S. at 685). 

The Supreme Court concluded that counsel’s strategy was

reasonable, because evidence of defendant’s normal

childhood might have been perceived negatively by the jury,

and because counsel’s decision to waive closing argument

prevented the lead prosecutor from depicting the defendant as

a heartless killer. Id. (citing Bell, 535 U.S. at 699–702). The

California Supreme Court noted that the counsel’s strategy in

Bell was similar to the strategy of Andrews’s counsel: by

providing little background information and giving only a
ANDREWS V. DAVIS 33

brief closing argument, counsel could reduce damaging

rebuttal evidence. Id. at 673–74.

Finally, the California Supreme Court considered

Williams v. Taylor, 529 U.S. 362 (2000), which held that

counsel rendered ineffective assistance of counsel by failing

to investigate defendant’s nightmarish childhood, borderline

mental retardation, and model behavior in prison. Id. at 674

(citing Williams, 529 U.S. at 395–96). The California

Supreme Court distinguished this case, noting that counsel’s

failure in Williams to investigate was not based on strategy,

as in Andrews’s case, but due to counsel’s erroneous

understanding of the law. Id. The state court also noted that

in Williams, there was no tactical reason to withhold evidence

and there was virtually no risk of damaging rebuttal, as in this

case. Id. at 674–75.

The California Supreme Court therefore concluded that

then-existing Supreme Court precedent was consistent with

its conclusion that Andrews had not established that “in light

of all the circumstances, the identified acts or omissions of

counsel were outside the wide range of professionally

competent assistance.” Id. at 668 (internal quotation marks

and alterations omitted).9

9 The dissent argues that the California Supreme Court erred in relying

on Burger, Bell, and Williamsin concluding that Andrews’s counsel were

not deficient. Dissent at 104–106, 110–111. This criticism is meritless,

however, because it is based on de novo review rather than the deference

required under AEDPA. For example, in concluding that “[t]he California

Supreme Court’s reliance onBurger is unreasonable,” Dissent at 104–105,

the dissent takes a de novo approach that is not permitted under AEDPA,

where a court must consider whether “fairminded jurists could disagree

that the state court’s decision conflicts with [the Supreme] Court’s

precedents,” Richter, 562 U.S. at 102. Similarly, instead of determining

whether any fairminded jurist could conclude there is a “principled
34 ANDREWS V. DAVIS

4

The California Supreme Court next turned to the

prejudice prong. As explained in greater detail below, the

California Supreme Court determined, based on its review of

the evidence adduced at the reference hearing and the rebuttal

evidence that could have been introduced during the penalty

phase, that “it is not ‘reasonabl[y] proba[ble]’ petitioner was

prejudiced by counsel’s rejection of a defense premised on

evidence of petitioner’s upbringing, the Alabama prison

conditions he experienced, and his mental health in light of

the circumstances of the crimes, given the ambiguous nature

of some mitigating evidence and the substantial potential for

damaging rebuttal.” Id. at 671 (quoting Strickland, 466 U.S.

at 694).

“Having considered the record of the hearing, the

referee’s factual findings, and petitioner’s original trial,” the

California Supreme Court concluded that Andrews “received

constitutionally adequate representation, and any inadequacy

did not result in prejudice.” Id. at 659. Accordingly, the

California Supreme Court denied Andrews’s state habeas

petition. Id. at 676.

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

banc), between this case and Williams, the dissent misrepresents the

California Supreme Court as holding that “a virtually nonexistent penalty

phase investigation is reasonable so long as it is not based upon a

misunderstanding of the law,” and then rejects this absurd reading of

Williams. Dissent at 110–111. “[I]t is not apparent how the [dissent’s]

analysis would have been any different without AEDPA.” Richter,

562 U.S. at 101 (faulting the Ninth Circuit’s de novo approach to habeas

review).
ANDREWS V. DAVIS 35

5

After the California Supreme Court rejected Andrews’s

claims, Andrews filed a habeas petition in federal district

court. His amended petition raised 32 claims, including

multiple subclaims.

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

district court denied 31 claims, but granted relief on

Andrews’s claim that his counsel were ineffective at the

penalty phase of his trial for failing to investigate and present

additional mitigating evidence. In reaching this conclusion,

the district court did not apply the standard mandated by the

Antiterrorism and Effective Death Penalty Act (AEDPA). 

Instead of determining whether the California Supreme

Court’s rejection of this ineffective assistance of counsel

claim was “contrary to, or involved an unreasonable

application of” Strickland, as required by 28 U.S.C.

§ 2254(d)(1), the district court reviewed the evidence

produced by the referee on this issue de novo and concluded

that counsel’s “failure to adequately investigate and discover

evidence of a life filled with abuse and privation is sufficient

to establish prejudice under Strickland.” Cf. Richter,

562 U.S. at 101 (criticizing the Ninth Circuit’s review of a

state court opinion under § 2254(d)(1) because it failed to

give the deference due under AEDPA). The court granted

Andrews’s petition on this ineffective assistance of counsel

claim, denied Andrews’s other 31 claims, and granted a

certificate of appealability (COA) on Andrews’s claim that

California’s lethal injection protocol violates the Eighth

Amendment (Claim 25).

Andrews timely appealed, challenging the district court’s

denials of Claim 25 and several uncertified claims. The state
36 ANDREWS V. DAVIS

cross-appealed the district court’s grant of relief on

Andrews’s ineffective assistance of counsel claim. After

briefing on his appeal was complete, Andrews moved for

permission to brief an additional uncertified claim for habeas

relief on the ground that it would violate the Eighth

Amendment to execute him after a long delay from the date

of his sentencing. We granted the motion.

II

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

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

2009).

A

AEDPA applies to Andrews’s federal habeas petition,

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

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

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

adjudicated on the merits in State court proceedings,”

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

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

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”

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

determination of the facts in light of the evidence presented

in the State court proceeding,” § 2254(d)(2).10

10 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).
ANDREWS V. DAVIS 37

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

precedent includes only the decisions in existence “as of the

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

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

emphasis omitted); see also Cullen v. Pinholster, 563 U.S.

170, 182 (2011) (“State-court decisions are measured against

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

court renders its decision.” (internal quotation marks

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

court’s decision are not clearly established precedent under

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

court reasonably applied Supreme Court precedent.

A Supreme Court decision is not clearly established law

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

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

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

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

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

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

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

evaluating state-sponsored courtroom conduct were not

clearly established law governing private actor courtroom

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

distinction between the case before it and Supreme Court

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

case.” Murdoch, 609 F.3d at 991. “[I]f a habeas court must

extend a rationale before it can apply to the facts at hand, then

by definition the rationale was not clearly established at the

time of the state-court decision.” White v. Woodall, 134 S.

Ct. 1697, 1706 (2014) (internal quotation marks omitted). A

principle is clearly 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
38 ANDREWS V. DAVIS

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,

529 U.S. at 405. 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,” Richter,

562 U.S. 86 at 101 (emphasis added). “Under § 2254(d), a

habeas court must determine what arguments or theories

supported” the state court’s decision, id. at 102, and 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)).

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, 563 U.S. at 181 (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
ANDREWS V. DAVIS 39

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, 563 U.S. at 189. 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.

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,

563 U.S. at 196 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,

563 U.S. at 196 & 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
40 ANDREWS V. DAVIS

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

petitioner’s claim that a state court unreasonably applied

Strickland. Id. at 202. 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 may guide a federal court’s AEDPA analysis

when the facts of the Supreme Court case (including the

prevailing professional norms at the time of the defendant’s

trial) are analogous to the case before the court.

Under Strickland, deficient performance is performance

that falls “below an objective standard of reasonableness” and

is thus outside of “the range of competence demanded of

attorneys in criminal cases.” 466 U.S. at 687–88 (internal

quotation marks omitted). The objective measure of

counsel’s performance is “reasonableness under prevailing

professional norms.” Id. at 688. Therefore, counsel’s

performance is deficient only if it falls below the standard of

then prevailing professional norms at the time of the trial. Id. 

In Pinholster, for instance, the Supreme Court rejected the

dissent’s argument that counsel’s performance was defective

where the dissent provided no evidence that counsel’s chosen

mitigation strategy was “inconsistent with the standard of

professional competence in capital cases that prevailed in Los

Angeles in 1984.” 563 U.S. at 196; see also Bobby v. Van

Hook, 558 U.S. 4, 8 (2009) (per curiam) (holding that the

Sixth Circuit had improperly relied on the much more

detailed 2003 ABA Guidelines “announced 18 years after

Van Hook went to trial”). Therefore, a court may not
ANDREWS V. DAVIS 41

evaluate whether counsel’s performance fell below prevailing

professional conduct at the time of a defendant’s trial by

reference to Supreme Court opinions that rely on laterdeveloped professional norms.

The Supreme Court has also 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. Illustrative

Supreme Court precedent indicates that 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, 563 U.S. at 197–202;

(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, 563 U.S. at

197–202, 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
42 ANDREWS V. DAVIS

sentencing and evidence that a competent attorney would

have introduced. See Wiggins, 539 U.S. at 534–35. A court

may assume that a competent attorneywould have considered

presenting all of the evidence adduced in post-conviction

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, evidence that a

defendant 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 defendant

suffered 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).
ANDREWS V. DAVIS 43

Similarly, evidence of a defendant’s mental or emotional

difficulties may lead a jury to conclude that a defendant is

less culpable than defendants without such difficulties. 

Penry, 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 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 the evidence’s impact on the jury might

be aggravating rather than mitigating. See Pinholster,

563 U.S. at 201–02. 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, 483 U.S. at
44 ANDREWS V. DAVIS

794 (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

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,

563 U.S. at 201 (noting that evidence of the defendant’s

family background, his substance abuse, and his 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, 535 U.S. at 701–02.

2

The second step in determining whether counsel’s

deficient performance prejudiced the defendant at the penalty

phase is evaluating the weight of the aggravating evidence

and any rebuttal evidence that the government could have

adduced had the mitigating evidence been introduced. See

Williams, 529 U.S. at 397–98; Pinholster, 563 U.S. at

197–202. 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 $100, the Supreme
ANDREWS V. DAVIS 45

Court agreed with the state court that the aggravating

evidence was “simply overwhelming” and determined that

counsel’s failure to introduce certain mitigating evidence was

not prejudicial. Belmontes, 558 U.S. at 15–16, 26–27

(internal quotation marks omitted). In 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. at 12–13. 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
46 ANDREWS V. DAVIS

testimony diagnosing a defendant with bipolar mood disorder

and seizure disorders, because such evidence would invite

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

bipolar disorder and offer a different diagnosis of antisocial

personality disorder. Pinholster, 563 U.S. at 177, 201.

3

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).
ANDREWS V. DAVIS 47

The Court has found a reasonable probability of a

different outcome when scant and weak aggravating evidence

could have been presented in rebuttal to strongly mitigating

evidence. See Wiggins, 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 be

unlikely to 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. 
48 ANDREWS V. DAVIS

Accordingly, the Court concluded that any failure of counsel

to present additional mitigating evidence was not prejudicial.

Id. at 27.

These Supreme Court opinions illustrate that under

Strickland’s prejudice prong, cumulative mitigating evidence

does not support a conclusion that there would be a

reasonable probability of a different outcome. New

mitigating evidence can support such a conclusion only if it

is sufficiently strong, and the known or additional

aggravating evidence is not overwhelming.

C

In light of this 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. See Strickland, 466 U.S. at 697 (“[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.”). 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, 563 U.S. at 182–83.

In considering whether any deficiency by Andrews’s

counsel was prejudicial, the California Supreme Court

correctly followed Strickland in asking whether, even if

counsel were deficient, Andrews’s defense was not

prejudiced by any such deficiency because a different result

was not reasonably probable. See In re Andrews, 52 P.3d at

671 (quoting Strickland, 466 U.S. at 694). The California
ANDREWS V. DAVIS 49

Supreme Court then reasonably carried out the three steps

indicated bySupreme Court opinions for evaluating prejudice

under Strickland at the penalty phase.11

1

The court first considered the totality of the mitigating

evidence presented at trial, as well as what mitigating

evidence could have been presented by a competent attorney,

based on the six-year review and report by the referee. See

Williams, 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,12id.

11 Andrews argues that the California Supreme Court failed to apply the

correct legal standard for determining whether counsel provided deficient

performance at the penalty phase. Specifically, Andrews argues that the

California Supreme Court failed to follow Tennard v. Dretke and Smith v.

Texas, which hold that evidence can be mitigating even if it is not

“uniquely severe” or does not have a “nexus” to the crime. 542 U.S. 274,

287 (2004); 543 U.S. 37, 44–45 (2004). This argument misconstrues the

California Supreme Court opinion. In determining that counsel could

have made a strategic decision not to present tangential evidence that

could cut both ways, the court expressly considered the purportedly

mitigating evidence. On its face, such an approach is not equivalent to

holding that certain evidence is per se not mitigating and declining to

consider it. Cf. 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.”).

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

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

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

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

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

Andrews “was subjected to beatings, brutality, inadequate conditions and
50 ANDREWS V. DAVIS

at 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, 563 U.S. at 201–02. 

The court 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

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

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 51

time he was released or escaped from prison.” In re Andrews,

52 P.3d at 670.

In addition, the California Supreme Court reasonably

determined that the evidence regarding the prison conditions

was double-edged. On the one hand, the prison conditions

evidence left it in “no doubt [that Andrews] endured

horrifically demeaning and degrading circumstances.” Id. 

On the other hand, the evidence would be presented primarily

through the testimony of Andrews’s former fellow inmates,

who had serious criminal records that could “draw[] an

unfavorable comparison” with Andrews. Id. 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.”13Id.; cf. Pinholster, 563 U.S. at

201–02.

The dissent claims that the California Supreme Court was

unreasonable in concluding that the Mt. Meigs evidence

could have constituted a double-edged sword because “[t]he

jury already knew from Andrews’s heinous crimes of

conviction and from the stipulated prior convictions that

Andrews was antisocial and ‘had become desensitized and

inured to violence and disrespect for the law.’” Dissent at

13 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, 563 U.S. at 201–02.
52 ANDREWS V. DAVIS

119–120. However, the dissent’s conclusion is factually

incorrect. Because the stipulation presented to the jury did

not describe the facts of each of the offenses underlying

Andrews’s prior convictions, the jury did not hear that

Andrews held a woman hostage with a gun to her head when

robbing a laundry business or that the taxi driver in the 1968

robbery heard Andrews say “[l]et’s shoot him” and then fired

at least two shots at him. See supra at 21–22. Accordingly,

the California Supreme Court did not err in concluding that

evidence of prison conditions was double-edged.

2

Consistent with Supreme Court precedent, the California

Supreme Court not only assessed the weight of the mitigating

evidence and its likely impact on a jury but also evaluated the

weight of the aggravating evidence at trial, as well as any

additional rebuttal evidence that could have been introduced. 

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

24–28. Turning to the circumstances of Andrews’s crimes,

the California Supreme Court stated that the murders showed

a “callous disregard for human life.” In re 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
ANDREWS V. DAVIS 53

might conclude Andrews was “aggressive and desensitized to

violence,” In re Andrews, 52 P.3d at 669. The jurymight also

have concluded that this “pattern of criminality” showed

Andrews “would pose a danger to others if he were sentenced

to life imprisonment.”

14

Id. Also, the references to

Andrews’s multiple escapes from prison might have been

“inflammatory.” Id.

Finally, the California Supreme Court reasonably

concluded that the prosecution could have presented its own

mental health experts in rebuttal, and could have used the

mental health evidence to Andrews’s disadvantage on cross

examination. Id. 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

14 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.
54 ANDREWS V. DAVIS

damage, but had antisocial personality traits.15Id.; cf.

Pinholster, 563 U.S. at 173, 201. Nor was the state court

unreasonable in concluding that Andrews’s experts’

testimony could 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, 563 U.S. at 201–02. 

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.

3

After evaluating the mitigating and aggravating evidence,

the California Supreme Court re-weighed it and assessed

whether it was reasonablyprobable 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

15 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.
ANDREWS V. DAVIS 55

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.” In re Andrews,

52 P.3d at 671. Indeed, the California Supreme Court

concluded that “[w]ith respect to the question of prejudice”

the record “contains no indication the jury was inclined to

sentence petitioner to life imprisonment and might have been

persuaded byadditional or alternate mitigation evidence.” Id.

at 675–76. Accordingly, the California Supreme Court

reasonably concluded that even if counsel were deficient,

Andrews’s defense was not prejudiced by any such

deficiency. Id. Because this is not an objectively

unreasonable application of Strickland, the district court erred

in granting Andrews relief on this issue.

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.16 We disagree.

In Williams, the police found a man dead in his residence. 

529 U.S. at 367. There was no indication of a struggle so

local officials concluded that the cause of death was alcohol

poisoning and closed the case. Id. The defendant, who had

been arrested for an unrelated offense, wrote a letter to the

police confessing he had killed a man by striking him in the

chest and back after an argument, thus “alerting police to a

16 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.
56 ANDREWS V. DAVIS

crime they otherwise would never have discovered,

expressing remorse for his actions, and cooperating with the

police after that.” Id. at 367–68 & n.1, 398.17

The defendant’s counsel began to prepare for the penalty

phase only a week before trial, and even then counsel did not

review defendant’s juvenile and social services records

because counsel incorrectly believed that state law barred

access to these records. Id. at 373, 395. Counsel thus failed

to discover documents that “graphically describe[d]

[defendant’s] nightmarish childhood.” Id. at 395. The

evidence showed that defendant’s “parents had been

imprisoned for the criminal neglect of [defendant] and his

siblings, that [defendant] had been severely and repeatedly

beaten by his father, that he had been committed to the

custody of the social services bureau for two years during his

parents’ incarceration (including one stint in an abusive foster

home), and then, after his parents were released from prison,

had been returned to his parents’ custody.” Id. The records

17 The dissent relies on Justice Rehnquist’s concurring and dissenting

opinion in Williams, which described additional aggravating factors

beyond the crime itself. See Dissent at 114–115 (stating that the jury

heard evidence that “Williams savagely beat an elderly woman, stole two

cars, set fire to a home, stabbed a man during a robbery, set fire to the city

jail, and confessed to having strong urges to choke other inmates and to

break a fellow prisoner’s jaw”) (citing Williams, 529 U.S. at 418

(Rehnquist, C.J., concurring in part and dissenting in part)). But under

AEDPA, neither concurring nor dissenting opinions, nor circuit court

decisions (particularly one reversed by the Supreme Court, see Dissent at

114–115), constitute clearly established Supreme Court precedent. See

Williams, 529 U.S. at 412 (stating that only the Supreme Court’s

“holdings, as opposed to the dicta” constitute clearly established Federal

law); Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (“As we have repeatedly

emphasized, however, circuit precedent does not constitute ‘clearly

established Federal law, as determined by the Supreme Court.’” (quoting

28 U.S.C. § 2254(d)(1))).
ANDREWS V. DAVIS 57

revealed that defendant’s home had urine and feces on the

floor; defendant’s parents “were so intoxicated, they could

not find any clothes for the children, nor were they able to put

the clothes on them”; “[t]he children were all dirty and none

of them had on under-pants”; and in one instance “[t]he

children had to be put in Winslow Hospital, as four of them,

by that time, were definitely under the influence of whiskey.” 

Id. at 395 n.19.

Nor did counsel introduce other mitigating evidence

readily apparent from the record, such as the fact that

defendant was “borderline mentally retarded.” Id. at 396. 

Counsel also failed to “seek prison records recording

[defendant’s] commendations for helping to crack a prison

drug ring and for returning a guard’s missing wallet, or the

testimony of prison officials who described [defendant] as

among the inmates ‘least likely to act in a violent, dangerous

or provocative way.’” Id. In addition, counsel failed to

return the phone call of a character witness who had offered

to testify “that he had visited [defendant] frequently when

[defendant] was incarcerated as part of a prison ministry

program, that [defendant] ‘seemed to thrive in a more

regimented and structured environment,’ and that [defendant]

was proud of the carpentry degree he earned while in prison.” 

Id.

Finally, at sentencing,“[t]he weight of defense counsel’s

closing . . . was devoted to explaining that it was difficult to

find a reason why the jury should spare [defendant’s] life.” 

Id. at 369; see also id. at 369 n.2 (quoting defense counsel as

telling the jury “‘I will admit too that it is very difficult to ask

you to show mercy to a man who maybe has not shown much

mercy himself. I doubt very seriously that he thought much

about mercy when he was in [the victim’s] bedroom that
58 ANDREWS V. DAVIS

night with him. . . . Admittedly it is very difficult to get us

and ask that you give this man mercy when he has shown so

little of it himself.’”). The Supreme Court held that the state

court applied the wrong legal standard in determining

prejudice because it required “a separate inquiry into

fundamental fairness,” id. at 393, even when the petitioner

showed there was a reasonable probability of a different

outcome, id. at 393–95. Therefore, the Court applied

Strickland de novo to these facts, id. at 397–98; see also

Pinholster, 563 U.S. at 202.

The state court here discussed Williams at length and

reasonablydistinguished it as having “substantiallydissimilar

facts.” In re Andrews, 52 P.3d at 675. In Williams, for

instance, the defense counsel could have introduced strong

character evidence regarding his exemplaryconduct in prison,

529 U.S. at 398, but no comparable evidence of good

character was present in Andrews’s case.18 The defendant’s

“nightmarish childhood” in Williams, 529 U.S. at 395, 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. Although

the prosecutor in Williams could have introduced rebuttal

evidence that defendant had been “thrice committed to the

juvenile system—for aiding and abetting larceny when he

was 11 years old, for pulling a false fire alarm when he was

18 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.
ANDREWS V. DAVIS 59

12, and for breaking and entering when he was 15,” 529 U.S.

at 396, such evidence has much less weight compared to

Andrews’s robbery-murder, hostage taking, and history of

escapes from prison, In re Andrews, 52 P.3d at 675. Finally,

the circumstances of the crime in Williams were less brutal

than Andrews’s rape and triple murder. Id.19 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

contraryconclusion here unreasonable. See Richter, 562 U.S.

at 101–02; see also Pinholster, 563 U.S. at 202–03.

Andrews also argues that the California Supreme Court’s

decision was unreasonable in light of Porter. Although

Porter was decided years after the California Supreme

Court’s opinion in this case, we give its prejudice analysis

careful consideration, because Porter considered prejudice

under AEDPA, and therefore provides direction for

determining what constitutes an unreasonable application of

the prejudice prong of Strickland under AEDPA. 

Nevertheless, we conclude that Porter does not help Andrews

here.

19 The dissent fails to engage with these distinctions and the evidence at

issue. Instead, the dissent conducts a de novo review, and concludes that

the aggravating evidence admitted at trial and the evidence that could have

been offered in rebuttal against Andrews was “no greater than the

aggravating evidence in Williams.” Dissent at 115. The dissent

misunderstands our role. We must determine whether the California

Supreme Court’s application of Williams was objectively unreasonable

under 28 U.S.C. § 2254(d)(1), not whether we would have reached a

different result under de novo review. “In order for a state court’s

decision to be an unreasonable application of [the Supreme] Court’s case

law, the ruling must be objectively unreasonable, not merely wrong; even

clear error will not suffice.” Virginia v. LeBlanc, No. 16-1177, 2017 WL

2507375, at *3 (U.S. June 12, 2017) (internal quotation marks omitted).
60 ANDREWS V. DAVIS

In Porter, the defendant was convicted of two counts of

first-degree murder for shooting his former girlfriend and her

boyfriend. 558 U.S. at 31. The evidence suggested that “this

was a crime of passion” and “that [defendant] was drinking

heavily just hours before the murders.” Id. at 38. The

defendant was convicted of both murders, and the jury

recommended the death sentence. Id. at 32. The state

supreme court affirmed, but struck the “heinous, atrocious, or

cruel aggravating factor,” because the evidence was

“consistent with the hypothesis that [defendant’s]was a crime

of passion, not a crime that was meant to be deliberately and

extraordinarily painful.” Id. at 33.

The defendant represented himself during the guilt phase,

id. at 32, and his counsel “had only one short meeting with

[defendant] regarding the penalty phase,” id. at 39. As the

Supreme Court explained, “counsel did not even take the first

step of interviewing witnesses or requesting records.” Id. As

a result, the defendant’s counsel failed to present evidence

about “(1) [defendant’s] heroic military service in two of the

most critical—and horrific—battles of the Korean War,” id.

at 41, which earned him two Purple Hearts, the Combat

Infantryman Badge, and other decorations, id. at 35; “(2) his

struggles to regain normality upon his return from war,” id.

at 41, which led to excessive drinking, id. at 36; “(3) his

childhood history of physical abuse,” id. at 41, during which

he was subjected to routine beatings and regularly watched

his father beating his mother, id. at 33; and “(4) his brain

abnormality, difficulty reading and writing, and limited

schooling,” id. at 41.

The Supreme Court determined that the state court

unreasonablyapplied Strickland in holding that the defendant

was not prejudiced by counsel’s failure to introduce this
ANDREWS V. DAVIS 61

mitigating evidence. The Court held that the mitigating

evidence was strong, while the weight of the evidence in

aggravation was less substantial. Id. The Court also held that

the state court was unreasonable in discounting the

defendant’s childhood abuse and military service. Id. at 43. 

It was “unreasonable to conclude that [defendant’s] military

service would be reduced to inconsequential proportions,

simply because the jury would also have learned that

[defendant] went AWOL on more than one occasion.” Id.

(internal citation and quotation marks omitted). The Court

reasoned that “[o]ur Nation has a long tradition of according

leniency to veterans in recognition of their service, especially

for those who fought on the front lines as [defendant] did,”

and that the “relevance of [defendant’s] extensive combat

experience is not only that he served honorably under

extreme hardship and gruesome conditions, but also that the

jury might find mitigating the intense stress and mental and

emotional toll that combat took on [defendant].” Id. 43–44. 

“To conclude otherwise,” the Court opined, “reflects a failure

to engage with what [defendant] actually went through in

Korea.” Id. at 44. Further, the Court held that the state court

was “unreasonable to discount to irrelevance the evidence of

[defendant’s] abusive childhood, especiallywhen that kind of

history may have particular salience for a jury evaluating

[defendant’s] behavior in his relationship with [his former

girlfriend].” Id. at 43.

The Court’s reasoning in Porter does not lead to the

conclusion that the California Supreme Court unreasonably

applied the prejudice prong of Strickland here. Unlike the

state court in Porter, the California Supreme Court

considered all mitigation evidence in the record and did not

fail to consider or “discount to irrelevance” significant

evidence. See id. The most important mitigation evidence in
62 ANDREWS V. DAVIS

Porter, that the defendant served in “the most critical—and

horrific—battles of the Korean War,” see id. at 41, is far

stronger than the mitigation evidence at issue here. 

Moreover, Andrews did not have an abusive home life, and

there is no evidence that his murders in this case were crimes

of passion for which childhood abuse would have “particular

salience for a jury” in evaluating his behavior. See id. at 43.

Further, the aggravating circumstances in Porter were

different and less weighty than those in this case. Indeed,

Porter noted that the state court had stricken the “heinous,

atrocious, or cruel” aggravating factor because the evidence

in the record was “consistent with the hypothesis that Porter’s

was a crime of passion, not a crime that was meant to be

deliberately and extraordinarily painful,” id. at 33, while here

the California Supreme Court found that Andrews’s brutal

rape and strangulation of Brandon, and the shooting and

strangling deaths of the other victims, evidenced a “callous

disregard for human life” and were accomplished with

“considerable violence and evident sangfroid,” In re

Andrews, 52 P.3d at 671.20 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.21

20 The dissent claims that the prosecutor presented “a strong case in

aggravation” in Porter, and therefore the conclusion in Porter must apply

in this case. Dissent at 118. But unlike the case before us, Porter held

that the sentencing judge had misjudged the weight of the aggravating

evidence, and “the weight of evidence in aggravation is not as substantial

as the sentencing judge thought.” Porter, 558 U.S. at 41. The aggravating

evidence in this case cannot similarly be minimized.

21 Andrews also urges us to apply our 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
ANDREWS V. DAVIS 63

Woodford v. Visciotti, a Supreme Court case that provides

direction for determining under AEDPA what constitutes an

unreasonable application of Strickland, is more closely on

point.22In 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

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.

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

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 428, 446 n.31. Nor is Doe clearly established law as determined

by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

22 Although Visciotti was decided after the California Supreme Court’s

decision in this case, we give it careful consideration because it addresses

the AEDPA question whether a state court’s adjudication of an ineffective

assistance of counsel claimwas an unreasonable application of Strickland. 

See supra at 39–40; see also Dissent at 116–117 & n.9 (acknowledging

that Supreme Court opinions analyzing AEDPA are relevant to a circuit

court’s AEDPA analysis, regardless whether those opinions were decided

before or after the last reasoned opinion of the state court). The dissent

highlights that Visciottiwas “decided afterthe California Supreme Court’s

decision in this case,” Dissent at 118, but given the dissent’s

acknowledgment that our consideration of a Supreme Court opinion

analyzing AEDPA is proper, the meaning of this emphasis is unclear.
64 ANDREWS V. DAVIS

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

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 27.23

 

23 The fact that our decision in this case was originally unanimous, see

Andrews v. Davis, 798 F.3d 759 (9th Cir. 2015), and there have been no

relevant factual or legal developments since that time, underscores our

conclusion that fairminded jurists could hold that the state court’s

determination was not objectively unreasonable.
ANDREWS V. DAVIS 65

The dissent purports to recognize that “our deference to

state court decisions is at its zenith on federal habeas review,”

Dissent at 96, but fails to apply this standard. Here, the

California Supreme Court determined that there was not a

reasonable probability that the outcome would have been

different had the evidence adduced at the reference hearing

(along with the rebuttal evidence) been presented to the jury. 

In re Andrews, 52 P.3d at 671, 675–76. The dissent does

not—and cannot—explain why the court’s conclusion is an

objectively unreasonable application of then-existing

Supreme Court precedent. The dissent points to Williams,

Dissent at 114–116, but makes no effort to explain the flaw

in the California Supreme Court’s “principled distinction” of

this case. Murdoch, 609 F.3d at 991; see supra at 58–59. 

Nor does the dissent meaningfully engage with the facts of

Porter or dispute the numerous distinctions addressed above. 

See supra at 59–62; Dissent at 116–118.24

The dissent fails to address the pertinent question, which

“‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect

but whether that determination was unreasonable—a

substantially higher threshold.’” Knowles v. Mirzayance,

556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,

24 The dissent’s reliance on Wiggins and Rompilla to support its

Strickland analysis, see Dissent at 112–113, 117, is mistaken, because

these cases were decided after the California Supreme Court ruled. While

we may always consider the Supreme Court’s reasoning in applying

AEDPA, both Wiggins and Rompilla examined the prejudice prong of

Strickland de novo. Wiggins, 539 U.S. at 534; Rompilla, 545 U.S. at 390. 

Therefore, these cases do not provide any guidance on the issue before us,

whether a state court’s determination that counsel’s deficiency was not

prejudicial was an unreasonable application of clearly established

Supreme Court precedent.
66 ANDREWS V. DAVIS

550 U.S. 465, 473 (2007)). Instead, the dissent concludes

that the California Supreme Court unreasonably applied

Strickland based on the dissent’s own view that “at least one

juror” would be inclined to “spare Andrews’s life” if

evidence of the abuse at Mt. Meigs had been presented. 

Dissent at 92; see id. at 92, 111, 120. This approach would

be wrong even under de novo review. The dissent’s limited

focus on a single piece of evidence fails to take into account

the totality of the mitigating and aggravating evidence in the

record. See Strickland, 466 U.S. at 695. In this context, the

dissent’s supposition that one juror would have been moved

amounts to little more than a mere possibility of a different

outcome, where the Supreme Court has made clear that “[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).

The dissent’s errors are even more glaring on AEDPA

review. The Court has told us frequently and emphatically

that “[i]t is not enough that a federal habeas court, in its

independent review of the legal question, is left with a firm

conviction that the state court was erroneous.” Lockyer,

538 U.S. at 75 (internal quotation marks and citations

omitted). Rather, the state court’s decision “must be

objectively unreasonable,” id., considering “the totality of the

evidence before the judge or jury,” Strickland, 466 U.S. at

695. Here, rather than apply AEDPA deference, the dissent

steps into the shoes of the dissenting justice of the California

Supreme Court in this case, see Dissent at 98, 100–104,

107–108, 116, and applies Strickland de novo. Indeed, the

dissent even makes its own factual findings. See Dissent at

107, 115 (discounting the substantial rebuttal evidence that

would have been presented at sentencing on the ground that

the prosecutor from Andrews’s trial would not have
ANDREWS V. DAVIS 67

introduced rebuttal witnesses had the defense presented

evidence of Andrews’s prison conditions, a factual conclusion

contrary to the determinations of the referee and the

California Supreme Court, see In re Andrews, 52 P.3d at

666). Such review is erroneous under AEDPA. In taking this

de novo approach, the dissent has failed to grapple with “the

only question that matters under § 2254(d)(1),” Lockyer,

538 U.S. at 71, whether the state court’s application of the

clearly established Supreme Court precedent was objectively

unreasonable.

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

phase ineffective assistance of counsel claim was not contrary

to or an unreasonable application of Supreme Court

precedent, we may not grant relief on this claim. 

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

contrary conclusion.

D

Because we decide Andrews’s claim on prejudice

grounds, we need not address the parties’ arguments

regarding whether counsel’s performance was deficient at the

penalty phase. Strickland, 466 U.S. at 697.25 Suffice it to

say, the dissent fails to conduct an AEDPA analysis of the

California Supreme Court’s determination that Andrews’s

attorney was not deficient under Strickland. Instead, as we

have previously noted, supra at 25 n.3, 26–27 n.4, 28 n.5,

28–29 n.6, 30 n.7, 30–31 n.8, 33–34 n.9, the dissent engages

in de novo review of both the facts and the law at issue, see

25 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.
68 ANDREWS V. DAVIS

Dissent at 96–111, and relies on cases that were not clearly

established at the time of the California Supreme Court’s

ruling, see, e.g., Dissent at 100, 106 (relying on the deficiency

analysis of Porter, which was decided years after the

California Supreme Court’s opinion in this case and reviewed

the issue of deficiency de novo). And in reaching its de novo

conclusion that “any competent attorney would have

presented” the Mt. Meigs evidence, Dissent at 109, the

dissent ignores “the doubly deferential judicial review that

applies to a Strickland claim evaluated under the § 2254(d)(1)

standard,” Mirzayance, 556 U.S. at 123. Accordingly, the

dissent fails to raise any serious questions regarding the

California Supreme Court’s analysis of Strickland’s

deficiency prong.

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.

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

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

in Sims v. Department of Corrections, the California

Department of Corrections and Rehabilitation (CDCR) has
ANDREWS V. DAVIS 69

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.26

Because no new protocol was in place at the time the district

court ruled, the claim was unripe, and the district court erred

in entertaining it. See Payton v. Cullen, 658 F.3d 890, 893

26 After losing its appeal, CDCR promulgated a new procedure, which

took effect on August 29, 2010. Sims, 216 Cal. App. 4th 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 by lethal injection until it promulgated new

regulations. Id. at 1066–67. This injunction was upheld on appeal. Id. at

1083–84. The CDCR proposed a newsingle-drug lethal injection protocol

in November 2015. Pursuant to California’s Administrative Procedure

Act (APA), the CDCR held a mandatory public comment period,

responded to each substantive comment, made any necessary changes, and

resubmitted the proposed protocol for additional public comment until

November 7, 2016. See Cal. Gov. Code §§ 11346–48. On December 28,

2016, the California Office of Administrative Law (OAL) rejected the

proposed lethal injunction protocol and stated that revisions may be

resubmitted within 120 days. In 2016, California voters approved the

Death Penalty Reform and Savings Act of 2016 (Proposition 66), which

amended state statute to provide that the state APA does not apply to

lethal injection protocols. The California Supreme Court stayed

“implementation of all provisions of Proposition 66” pending the

resolution of litigation challenging its implementation. Briggs v. Brown,

387 P.3d 1254, 1255 (Cal. 2017).
70 ANDREWS V. DAVIS

(9th Cir. 2011).27 Andrews may renew his challenge when

California has finally approved its protocol. Id.

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 trial 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).28

 

27 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.

 

28 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
ANDREWS V. DAVIS 71

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,

801–02.29 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).

29 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.
72 ANDREWS V. DAVIS

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).30 As

30 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
ANDREWS V. DAVIS 73

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 state cannot constitutionally impose the death penalty

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 . . . .”). Habeas petitioners must make a “showing that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Slack v.

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

marks omitted). Because the statute is jurisdictional,“[t]his

threshold question should be decided without ‘full

consideration of the factual or legal bases adduced in support

of the claims.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017)

(quoting 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 an appeal,” 537 U.S. at 342, we

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

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

“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. 

While the Court has not specified “what procedures may be

appropriate in every case,” any procedures “employed at the

COA stage should be consonant with the limited nature of the

inquiry.” Buck, 137 S. Ct. at 774.

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. Jones

v. Chappell, 31 F. Supp. 3d 1050, 1053, 1061–62, 1069 (C.D.

Cal. 2014), rev’d sub nom. Jones v. Davis, 806 F.3d 538 (9th

Cir. 2015). 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
ANDREWS V. DAVIS 75

penological purpose. Claim 26 also asserted that Andrews

did not cause any unnecessary delays, but merely sought to

vindicate his constitutional rights in a system that produced

delays. Andrews exhausted this claim by raising it to the

California Supreme Court, which summarily denied it.

The district court rejected this claim on the merits on the

ground that there has been no demonstration of “any support

in the 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

Supreme Court 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)
76 ANDREWS V. DAVIS

(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

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,”
ANDREWS V. DAVIS 77

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 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 “sufficiently related” 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
78 ANDREWS V. DAVIS

many years on death row violates the prohibition on cruel and

unusual punishment of that prisoner, while Jones was based

on the theory that the California system itself creates the

constitutional infirmity, because inordinate delay makes the

system arbitrary and unable to serve a deterrent or retributive

purpose, in violation of the Eighth Amendment.

We disagree that Andrews is raising a systemic challenge

to California’s administration of its death penalty system,

which would be a new and unexhausted claim. Rather,

Andrews’s claim before the state court, the district court, and

on appeal here is essentially the same constitutional claim:

that his right to be free from cruel and unusual punishment

under the Eighth Amendment is violated by his lengthy

incarceration while under a sentence of death. Andrews has

not introduced any new facts or evidence since he raised this

argument to the state court. Andrews’s supplemental brief

points to Jones’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.
ANDREWS V. DAVIS 79

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 in the

AEDPA context, no clearly established Supreme Court

precedent holds that 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.

We reached a similar determination in Jones v. Davis,

where we held that neither Furman nor Gregg established the

rule that the Eighth Amendment barred delays in resolving

post-conviction proceedings. See 806 F.3d at 551. In light of

the Supreme Court’s rule that “federal courts may not

consider novel constitutional theories on habeas review,” id.

at 541 (citing Teague v. Lane, 489 U.S. 288 (1989)), we

concluded that neither a Lackey claim nor a systemic

challenge to California’s death penalty system was

cognizable in federal habeas proceedings. Id. at 548, 552. 

Because such claims are barred from habeas consideration
80 ANDREWS V. DAVIS

under Teague, see id. at 548, 552, they are not clearly

established rules under 28 U.S.C. § 2254(d)(1). Schardt v.

Payne, 414 F.3d 1025, 1037 (9th Cir. 2005). 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. Therefore, the

state court’s rejection of Andrews’s delay claim was not an

unreasonable application of Furman orGregg, 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,

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
ANDREWS V. DAVIS 81

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

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.
82 ANDREWS V. DAVIS

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 eyewitnesstestimonyabout 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,

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
ANDREWS V. DAVIS 83

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

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
84 ANDREWS V. DAVIS

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-Bernal for

the proposition that he could establish his ineffective

assistance of counsel claim without showing how his alibi

witnesses would have testified, because he needed to show

only that their testimony would be material and favorable to

his defense. 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

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
ANDREWS V. DAVIS 85

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

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.
86 ANDREWS V. DAVIS

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.

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 V. DAVIS 87

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 1981.31

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

31 The Los Angeles Police Department Homicide Manual states in

pertinent part:

Note: (A) Photographing Prints

Prints found at the scene of a homicide should be

photographed. The procedure is recommended because

it is much easier to introduce print evidence into court

ifthe print has been photographed, as parts ofthe object

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

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 Maddox, 366 F.3d at

999–1000 (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,

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 Dist. 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 V. DAVIS 89

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

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
90 ANDREWS V. DAVIS

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

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.
ANDREWS V. DAVIS 91

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.32 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

limited to the record that was before the state court that

adjudicated the claim on the merits.” 563 U.S. at 181. “[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, 563 U.S. at 203 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

32 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.
92 ANDREWS V. DAVIS

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.

MURGUIA, Circuit Judge, dissenting in part:

I respectfully dissent. I would affirm the district court’s

order granting Andrews relief due to ineffective assistance of

counsel at the penalty phase of his trial.

Andrews was convicted of three heinous and appalling

murders. His prior crimes were violent and antisocial. But

due to defense counsel’s constitutionally inadequate penalty

phase investigation, the jurors who sentenced Andrews to

death never knew that he was subjected for two years as a

young teenager to brutal, inhumane, and degrading abuse by

his state custodians at Mt. Meigs, a segregated reform school

for “Negro children” in Alabama. Had counsel presented this

readily available mitigating evidence, there is a reasonable

probability that at least one juror would have been moved to

exercise mercy and spare Andrews’s life. Yet the California

Supreme Court denied relief in a 5-to-2 decision, concluding

that counsel’s performance was neither deficient nor

prejudicial. See In re Andrews, 52 P.3d 656 (Cal. 2002).
ANDREWS V. DAVIS 93

Fundamentally, it is unconscionable to sentence a man to

death absent consideration of mitigating evidence of this

magnitude, particularly where counsel failed to present any

meaningful mitigation evidence. Our “ultimate focus of

inquirymust be on the fundamental fairness of the proceeding

whose result is being challenged.” Strickland v. Washington,

466 U.S. 668, 696 (1984). Under the standard of review

mandated by the Antiterrorism and Effective Death Penalty

Act (AEDPA), the “pivotal question is whether the state

court’s application of the Strickland standard was

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

(2011). The California Supreme Court’s determination that

counsel’s performance was neither deficient nor prejudicial

is not just wrong, it is unreasonable under the clearly

established law of Strickland and its progeny. Thus, even

under the deferential standard of the AEDPA, conditional

sentencing relief is warranted.

I

Andrews was sent to the Alabama Industrial School for

Negro Children, later known as Mt. Meigs, in the mid-1960s,

after stealing a car. He had no prior history of violent crime. 

He entered the school when he was 14. He left when he was

16.

The California judge who conducted the state court

evidentiary hearing described Mt. Meigs as a “segregated

brutal institution near Montgomery, Alabama.” The state

court hearing judge found that the conditions at Mt. Meigs

were horrific, and that Andrews was personally subjected to

“beatings, brutality, inadequate conditions and sexual

predators.” Due to “his small stature and passive nature,”

Andrews was “the target for older boys’ depredations.” The
94 ANDREWS V. DAVIS

California Supreme Court itself acknowledged that Andrews

personally endured “appalling” conditions at Mt. Meigs. See

Andrews, 52 P.3d. at 660.

At the state court evidentiary hearing ordered by the

California Supreme Court, several outside observers

corroborated the accounts of abuse at Mt. Meigs. A United

States federal judge testified that Mt. Meigs, during the time

Andrews was there, was a “penal colony” that represented the

“absolute denial of basic and fundamental human rights to

[African-American] children.” A former state probation

officer described Mt. Meigs as a “slave camp” for children,

run by “illiterate overseers” who forced children to work in

the fields harvesting vegetables and picking cotton. The

children were “beaten all the time,” sometimes with

broomsticks, mop handles, and fan belts, and often severely

for minor infractions. Violence was pervasive and sexual

assaults were common. The state probation officer testified

that children committed to Mt. Meigs in the 1960s had no

chance of rehabilitation and “came out much worse” than

when they entered. The probation officer, who testified

before Congress and state legislatures about juvenile justice

facilities around the country, stated that Mt. Meigs was “by

far, by far . . . the worst facility” that he had seen.

Despite being termed a “school,” Mt. Meigs provided

little to no education, counseling, or vocational programs to

the children in its custody. See Andrews, 52 P.3d at 677

(Kennard, J., dissenting). And in 1971, an Alabama district

court ordered extensive reforms at the institution after finding

that “corporal punishment was promiscuously employed by

the school’s personnel” and agreeing that “[w]hen officials of

a training school have condoned or permitted the frequent and

indiscriminate use of corporal punishment . . . they have
ANDREWS V. DAVIS 95

demonstrated the callous indifference to children’s safety

which provides the basis for Eighth Amendment liability” as

cruel and unusual punishment. Order, Stockton v. Alabama

Industrial School for Negro Children, No. 2834-N (N.D. Ala.

July 23, 1971) (adopting proposed findings of fact and

conclusions of law); see also Crum v. State Training Sch. for

Girls, 413 F.2d 1348, 1349 (5th Cir. 1969) (ordering the

desegregation of Mt. Meigs after finding that it was “inferior

in every way” to similar schools for white children).

Andrews was not spared. The state court record

chronicles in excruciatingly vivid detail the abuse he

personally suffered. When Andrews failed to pick enough

cotton, left the grass too high in the fields, or made a mistake

in the dining hall, he was whipped with a fan belt or beaten

with a stick. The record indicates that Andrews was beaten

so severely the skin on his thighs would “bust open.” On

other occasions Andrews and other wards at Mt. Meigs were

forced to pull down their pants, lie on the ground on their

stomachs, and place their penises in holes in the earth while

they were whipped. The judge who conducted the state court

evidentiary hearing found the evidence of abuse

“compelling.”

The jury that sentenced Andrews to death heard none of

this evidence. Yet the California Supreme Court concluded

that counsel was not ineffective and, even if ineffective, there

was no reasonable probability of a different result at

sentencing had the jury heard the Mt. Meigs evidence.

That decision is fundamentally and objectively

unreasonable. Consideration of a defendant’s life history is

a “constitutionally indispensable part of the process of

inflicting the penalty of death.” See Eddings v. Oklahoma,
96 ANDREWS V. DAVIS

455 U.S. 104, 112 (1982) (quoting Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)). Yet

Andrews’s counsel presented almost no mitigating evidence

at sentencing. The Mt. Meigs evidence is not cumulative to

any other evidence presented during the trial or penalty phase. 

The evidence was readily available. Its sympathetic nature is

patentlyobvious. And without consideration of the degrading

abuse that Andrews endured, the jury that sentenced Andrews

to death could not fairly “gauge his moral culpability.” See

Porter v. McCollum, 558 U.S. 30, 41 (2009) (per curiam). 

Confidence in the sentencing outcome has been undermined. 

See Strickland, 466 U.S. at 694.

I recognize that our deference to state court decisions is

at its zenith on federal habeas review. See generally Richter,

562 U.S. at 104. Under the AEDPA, federal courts are barred

from granting habeas relief as to state court convictions if

jurists of reason could debate the correctness of the state

court’s decision. See id. at 101. “A state court must be

granted a deference and latitude that are not in operation

when the case involves review under the Strickland standard

itself.” Id. Federal habeas relief is warranted, however, if

“the state court identifies the correct governing legal

principle” from the decisions of the Supreme Court but

unreasonably applies that principle to the facts of the

petitioner’s case. Williams v. Taylor, 529 U.S. 362, 413

(2000); see 28 U.S.C. § 2254(d)(1). This case meets that

stringent standard for collateral relief on federal habeas

review.

II

Regarding Strickland's first prong, the CaliforniaSupreme

Court unreasonably applied clearly established federal law in
ANDREWS V. DAVIS 97

concluding that counsel’s performance at the penalty phase

was adequate.

“[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691. 

When counsel have not fulfilled “their obligation to conduct

a thorough investigation of the defendant’s background,”

their failure to identify and set forth substantial mitigating

evidence at sentencing cannot be justified as a “tactical

decision.” See Williams, 529 U.S. at 396 (citing 1 ABA

Standards for Criminal Justice 4–4.1, commentary, p. 4–55

(2d ed. 1980)); see also Wiggins v. Smith, 539 U.S. 510,

521–22 (2003).

Andrews’s trial counsel conducted “virtually no penalty

phase investigation” and “did not call a single witness at the

penalty phase.” Andrews, 52 P.3d at 676 (Kennard, J.,

dissenting). Nor did counsel ask their investigators to do any

work on the penalty phase. Indeed, Andrews’s counsel made

no serious effort to discover mitigating evidence.1

1 The majority cites trips that Andrews’s counsel made to Alabama and

Florida as evidence that they conducted something other than a cursory

penalty phase investigation. Majority at 25 n.3. Yet by the lawyers’ own

account, their penalty phase investigation consisted ofjust three activities. 

First, the lawyers spent a day in the Mobile courthouse pulling records of

Andrews’s prior convictions. One of the lawyers initially testified that

their trip to Alabama included three days of investigation. He changed

that account after being confronted with evidence that they were in New

Orleans for most of the time, flying to Mobile on a Saturday and returning

to New Orleans on the same day. New Orleans had no relation to the

case; the dates of the trip “coincided” with Mardi Gras celebrations. 

Second, only after Andrews’s first trial ended in a hung jury, the lawyers

interviewed Andrews’s mother during a layover in the Pensacola airport,

after they briefly revisited the Mobile courthouse to examine records of
98 ANDREWS V. DAVIS

The state court judge who presided over the evidentiary

hearing expressly found that defense counsel could have

uncovered the Mt. Meigs evidence with “simple persistence”

and standard investigative techniques. See Andrews, 52 P.3d

at 680 (Kennard, J., dissenting); see also id. at 681 (noting

that routine legal research of public records would have

revealed lawsuits involving these Alabama institutions). The

California Supreme Court does not dispute that finding. See

Andrews, 52 P.3d at 668.

A

The California Supreme Court, however, excused

counsel’s failure to discover the Mt. Meigs evidence for a

number of unsupported and unsupportable reasons,

concluding that counsel’s investigation was constitutionally

adequate because: (1) Andrews did not want his family

involved; (2) Andrews did not tell counsel about the appalling

conditions he endured while confined at Mt. Meigs; (3) the

Mt. Meigs evidence could have backfired, for the evidence

Andrews’s prior convictions. The interview did not go into detail about

Andrews’s background, and the lawyers did not inquire about the names

or contact information of relatives or anybody else who knew Andrews

and could speak to his history. Third, the lawyers asserted that they spent

some time in Mobile during one of their two trips unsuccessfully

“look[ing] for evidence of Jesse’s character and good deeds.” The

lawyers, however, did not interview a single person, contact any of

Andrews’s family or friends, or look into Andrews’s institutional history. 

Similarly, the two defense investigators testified that their efforts were

limited to the guilt phase, and that neither of Andrews’s attorneys asked

them to do any investigation into Andrews’s background for a possible

penalty phase. The California Supreme Court’s referee characterized

counsel’s “actual efforts” to gather mitigating evidence for the penalty

phase as “limited,” a characterization which in light of this record is

understated, if not overly generous.
ANDREWS V. DAVIS 99

would have come primarily from prisoners; (4) counsel’s

limited investigation was reasonable because counsel had a

reasonable strategy at the penalty phase; and (5) the Mt.

Meigs evidence could have opened the door to more evidence

regarding Andrews’s prior acts of violence. Not one of these

rationales withstands scrutiny or excuses counsel’s failure to

perform a basic investigation into his client’s life history.

(1) Andrews’s Refusal to Involve his Family.

The California Supreme Court found counsel’s limited

investigation adequate partly because Andrews refused to

involve his family at the penalty phase. See Andrews, 52 P.3d

at 668. The California Supreme Court reasoned as follows: 

“Although the referee found that counsel could have

discovered the mitigating evidence presented at the reference

hearing with ‘simple persistence,’ it is equally clear petitioner

insisted they not involve his family. ‘As we have repeatedly

explained, an attorney representing a defendant at the penalty

phase of a capital case is not required to present potentially

mitigating evidence over the defendant’s objections. . . .’” Id.

(quoting People v. Kirkpatrick, 874 P.2d 248 (Cal. 1994)).

The California Supreme Court is correct that Andrews did

not want his family involved. And it is also correct that the

“reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or

actions.” See Strickland, 466 U.S. at 691. However,

excusing counsel’s failure to present the Mt. Meigs evidence

based upon Andrews’s refusal to involve his family is

unreasonable on its face for a simple reason: presenting the

Mt. Meigs evidence would not have required any

involvement by Andrews’s family. Instead, as accounted

herein, defense counsel could have introduced the Mt. Meigs
100 ANDREWS V. DAVIS

evidence by admitting public records and by presenting the

testimony of numerous experts and respected observers.

The state court’s rationale is also unreasonable in light of

the record before it. Andrews’s trial attorney testified at the

state court evidentiary hearing that Andrews imposed no

limitations on a penalty phase investigation into his

background, apart from not wanting to have his family testify. 

The state court hearing judge found no obstacle to calling

witnesses who were not members of Andrews’s family.

It was therefore unreasonable for the California Supreme

Court to excuse counsel’s failure to present the Mt. Meigs

evidence based upon Andrews’s refusal to involve his family. 

See 28 U.S.C. § 2254(d)(2) (stating that federal habeas relief

is warranted if the state court decision was based upon an

unreasonable determination of facts in light of the evidence

presented in the state court proceeding); cf. Porter, 558 U.S.

at 40 (stating that counsel’s decision not to investigate must

reflect a “reasonable professional judgment,” even when the

client is “fatalistic or uncooperative”).

(2) Andrews’s Failure to Tell Counsel About His Time

at Mt. Meigs

The California Supreme Court also faulted Andrews for

not telling trial counsel about the appalling conditions he

endured while at Mt. Meigs. See Andrews, 52 P.3d at 668

(“While counsel were aware petitioner had been incarcerated

in the Alabama prison system, he did not inform them of the

conditions he endured thereby alerting them to the need for

further investigation of possible mitigation.”). However, no

evidence in the record suggests that counsel ever asked

Andrews any questions that would have elicited that history. 
ANDREWS V. DAVIS 101

See Andrews, 52 P.3d at 681 (Kennard, J., dissenting) (stating

Andrews “did not withhold that information. His attorneys

never raised the subject.”).2 Nor is there any evidence that

Andrews, “described by one of his trial attorneys as ‘very

cooperative,’ would have refused to discuss his reform school

and prison experiences in Alabama had he been asked about

them.” Id.

Given those facts, the California Supreme Court was

unreasonable in placing the burden on Andrews to

comprehend and offer mitigation theories at the penalty phase

of his own trial. Under clearly established Supreme Court

law, legal strategy is the duty and domain of learned counsel;

while a defendant “has the ultimate authority to make certain

fundamental decisions regarding the case, as to whether to

plead guilty, waive a jury, testify in his or her own behalf, or

take an appeal,” legal strategy decisions are matters of

professional judgment that fall within counsel’s domain and

are the responsibility of counsel. See Jones v. Barnes,

463 U.S. 745, 751 (1983). And, as accounted above, the most

basic of investigations into Andrews’s life historywould have

uncovered the evidence of the abuse he suffered. Cf.

2 The majority generally and repeatedly accuses the dissent of engaging

in a de novo review when evaluating whether the California Supreme

Court’s determinations were reasonable. Yet deference does not

eviscerate our duty to examine and evaluate the record to determine the

reasonableness of the state court’s conclusions. Further, in engaging in

that inquiry, it is entirely proper to look to a state court dissenting opinion

that may shed light on whether the state court majority’s determinations

were reasonable or unreasonable in light of the record as a whole. Facts

on federal habeas review are not limited to only the facts stated in the state

supreme court’s majority opinion. Cf. 28 U.S.C. § 2254(d)(2) (stating that

federal habeas relief is warranted if the state court decision “was based on

an unreasonable determination of the facts in light of the evidence

presented”).
102 ANDREWS V. DAVIS

Williams, 529 U.S. at 395 (finding counsel deficient for

failing to review defendant’s juvenile records that “would

have uncovered extensive records graphically describing

[defendant’s] nightmarish childhood”).

(3) The Reliance on Prisoners to Present the Mt.

Meigs Evidence

The California Supreme Court further concluded it was

reasonable for counsel not to present the Mt. Meigs evidence

because such evidence could have backfired as it “would

come primarily from the testimony of petitioner’s fellow

prisoners, many of whom were hardened criminals with

serious felony records.” See Andrews, 52 P.3d at 668–69.3

However, the Mt. Meigs evidence was not dependent

upon testimony from prisoners. At Andrews’s state court

evidentiary hearing, “a federal district judge, a priest, a

college dean, a clinical psychologist, a longtime prison

doctor, and the regional director of the Federal Bureau of

Detention, all . . . gave powerfully effective testimony about

the shocking conditions at” Mt. Meigs. Andrews, 52 P.3d at

681 (Kennard, J., dissenting); e.g., id. at 677 (discussing

3

 The California Supreme Court’s opinion often conflates the evidence

of abuse that Andrews suffered as a youth at Mt. Meigs with other

potential mitigating evidence he could have introduced regarding the

abuse he sustained as an adult in the Alabama prison system. Because

counsel’s failure to investigate and introduce the Mt. Meigs evidence,

standing alone, plainly rendered counsel’s performance deficient, I only

address the Mt. Meigs evidence. However, the dissent in the California

Supreme Court provides an accurate and thorough accounting of the

additional mitigating evidence that counsel could have introduced. See

Andrews, 52 P.3d at 676–80 (Kennard, J., dissenting) (describing

Andrews’s time in Alabama prisons that were later found to violate the

Eighth Amendment’s prohibition against cruel and unusual punishment).
ANDREWS V. DAVIS 103

testimony of federal district court judge Ira Dement, who

referred to Mt. Meigs as a “penal colony for children”).

In light of the state court record, it therefore was

unreasonable for the California Supreme Court to excuse

counsel’s failure to present the Mt. Meigs evidence on the

basis that such evidence would have primarilydepended upon

the testimony of prisoners. See 28 U.S.C. § 2254(d)(2); see

also Wiggins, 539 U.S. at 528 (stating that “partial reliance on

an erroneous factual finding” can show “the unreasonableness

of the state court’s decision.”).

(4) Counsel’s Penalty Strategy

The California Supreme Court expressly acknowledged

that the record at the state court evidentiary hearing suggested

that counsel could have conducted a more thorough

investigation into Andrews’s background. See Andrews,

52 P.3d at 669. However, the California Supreme Court

ultimately concluded that counsel’s penalty phase

performance was adequate because counsel had decided upon

a reasonable strategy, one that apparently did not involve or

require any meaningful preliminary investigation into

Andrews’s social history. According to the California

Supreme Court, counsel presented a “reasonable case for

sparing petitioner’s life” by (1) portraying Andrews “as a

follower rather than as violently antisocial”; and (2) arguing

a death sentence was not warranted because “others who had

committed more heinous multiple murders” were not

sentenced to death and Andrews’s co-defendant Sanders had

received a lighter sentence. See id.

The California Supreme Court’s decision is unreasonable

because neither strategy was supported by the evidence
104 ANDREWS V. DAVIS

presented at trial. Further, the state court’s decision is

unreasonable because it ignores counsel’s “duty to make

reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” 

Strickland, 466 U.S. at 691.

The evidence as to the crimes of conviction which

rendered Andrews death eligible belied the depiction of

Andrews as a follower, rendering counsel’s penalty phase

pitch to the jury contrary to the record, hollow, and false. See

Andrews, 52 P.3d at 682 (Kennard, J., dissenting) (“[T]hat

was a disastrous strategy, one no reasonably competent

attorney would have used”). Indeed, “the only evidence

before the jury was that petitioner was the instigator rather

than a follower.” Id. The “evidence showed that [Andrews]

was the leader and the perpetrator of the crimes while Sanders

was the follower; thus, jurors were not likely to be troubled

by Sanders’s lighter sentence.” Id.

Given the evidence at trial, no reasonable argument can

be made that counsel’s strategy to depict Andrews as a

follower was reasonable, particularly when it was

unsupported by a basic investigation into Andrews’s

background to determine what other mitigating evidence was

available. See Bobby v. Van Hook, 130 S.Ct. 13, 17 (2009)

(stating that counsel must make “objectively reasonable

choices”) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479

(2000)); see Wiggins, 539 U.S. at 527 (“Strickland does not

establish that a cursory investigation automatically justifies

a tactical decision with respect to sentencing strategy.”).

The California Supreme Court cited Burger v. Kemp,

483 U.S. 776 (1987), as supporting the proposition that it is

reasonable to forego mitigating evidence when it would open
ANDREWS V. DAVIS 105

the door to rebuttal evidence which would contradict

counsel’s strategy of portraying defendant as the follower. 

See Andrews, 52 P.3d at 673 (citing Burger, 483 U.S. at 793). 

The California Supreme Court’s reliance on Burger is

unreasonable for two reasons. First, in Burger, defense

counsel performed a robust initial mitigation investigation

and spoke to a family member, a friend, and a psychologist to

learn about his client’s background. See Burger, 483 U.S. at

790–91. Based upon what Burger’s counsel learned, counsel

decided against pursuing a mitigation case relying on that

background, id. at 791, even though it turned out that further

investigation would have produced additional evidence that

defendant had “an exceptionally unhappy and unstable

childhood.” Id. at 789. As the Supreme Court concluded,

counsel’s initial investigation led him to make the

“reasonable decision that his client’s interest would not be

served by presenting this type of [mitigating] evidence.” Id.

at 791. The facts of this case are very different. Unlike

Burger’s defense counsel, Andrews’s attorneys never

performed any meaningful initial investigation into their

client’s background. Absent such an investigation, the

lawyers cannot be said to have made informed strategic

choices about how to proceed in a possible penalty phase of

trial.

Second and relatedly, in Burger, counsel’s depiction of

his client as a follower was a reasonable strategy for it was

supported by the record. See Burger, 483 U.S. at 779 (noting

primary evidence at trial showed that Burger’s co-defendant

Stevens “was primarily responsible for the plan to kidnap the

[victim], the physical abuse of the victim, and the decision to

kill him”). In contrast, the evidence at Andrews’s trial

plainly showed that Andrews was not a follower, but the main

criminal actor. Thus, the California Supreme Court’s
106 ANDREWS V. DAVIS

statement that “we reach the same conclusion on comparable

facts,” see Andrews, 52 P.3d at 673, is wrong for the facts in

Burger are not comparable. The California Supreme Court’s

reliance on Burger is unreasonable.

The California Supreme Court also unreasonably applied

Supreme Court law when it cited Bell v. Cone, 535 U.S. 685

(2002), to support its conclusion that counsel reasonably

decided not to present evidence of Andrews’s background. 

See Andrews, 52 P.3d at 673 (citing Cone, 535 U.S. at

699–700). Before noting that defense counsel saw the

neighborhood Andrews grew up in and considered it

unimpressive because it was comparable to counsel’s own,

the California Supreme Court cited Cone for the proposition

that counsel may reasonablydecide not to present background

evidence when testimony about a defendant’s “normal youth”

might, in the eyes of the jury, be perceived negatively and cut

the other way. See id. However, all reasonable jurists would

agree that the years Andrews spent at Mt. Meigs were the

antithesis of a “normal youth.” The California Supreme

Court’s invocation of Cone, while simultaneously ignoring

that Andrews’s “youth” included his experience at Mt. Meigs,

was an objectively unreasonable application of Supreme

Court law. See Wiggins, 539 U.S. at 526–27 (observing that

the “strategic decision” offered “to justify counsel’s limited

pursuit of mitigating evidence resembles . . . a post hoc

rationalization of counsel’s conduct.”); cf. Porter, 558 U.S.

at 43 (concluding that state supreme court was “unreasonable

to discount to irrelevance the evidence of Porter’s abusive

childhood”).
ANDREWS V. DAVIS 107

(5) Opening the Door to Andrews’s Prior Acts of

Violence.

Finally, the California Supreme Court concluded

counsel’s failure to present the Mt. Meigs evidence, among

other mitigation evidence, was reasonable because such

evidence could have opened the door to more evidence

regarding Andrews’s prior acts of violence. See Andrews,

52 P.3d at 669 (stating that by not introducing the evidence,

counsel “foreclosed the introduction of substantial

aggravating evidence in rebuttal or on cross-examination that

could have undermined the defense by depicting petitioner as

aggressive and desensitized to violence”). The California

Supreme Court’s decision on this point is unreasonable for at

least two reasons.

One, the prosecutor from Andrews’s trial, who in the

interim had become a superior court judge, “testified that if

the defense had presented evidence of the Alabama prison

conditions he probably would not have called rebuttal

witnesses to give details about petitioner’s Alabama crimes.” 

See Andrews, 52 P.3d at 682 (Kennard, J., dissenting).4

4

 It is also possible, if not likely, that a California court would not have

admitted evidence of prior offenses to rebut the mitigating evidence of

childhood abuse that Andrews suffered at Mt. Meigs. Cf. In re Lucas,

94 P.3d 477, 510 (Cal. 2004) (concluding, in a unanimous decision, that

mitigating evidence showing “that a defendant suffered abuse in childhood

generally does not open the door to evidence of [a] defendant’s prior

crimes or other misconduct”).
108 ANDREWS V. DAVIS

Two, even if the prosecutor had rebutted with more

evidence regarding Andrews’s prior violent crimes,5

the jury

already knew based upon Andrews’s heinous crimes of

conviction that he was “aggressive and desensitized to

violence.” The jury also knew, by stipulation, of Andrews’s

prior convictions for murder in 1967, armed robbery in 1968,

escape in 1969, and robbery in 1977 which the prosecution

introduced as aggravating factors at the penalty phase.6 More

evidence regarding Andrews’s prior convictions would have

reinforced what the jury already knew, namely that Andrews

committed heinous crimes and clearly was “aggressive and

desensitized to violence.”

The clearly established law of Strickland itself supports

the conclusion that the California Supreme Court’s decision

was unreasonable. In Strickland, it was reasonable for

counsel not to present mitigating evidence that “would barely

have altered the sentencing profile” and could have opened

the door to prior convictions which counsel had successfully

moved to exclude. 466 U.S. at 699–700. So too in Darden

5 The majority accurately observes that the referee and the California

Supreme Court majority concluded that if trial counsel had presented the

Mt. Meigs evidence, the prosecutor would have introduced rebuttal

evidence. Majority at 30–31 n.8. But that finding fails to take into

account the plain statement by the former prosecutor—later a state court

judge—that he probablywould not have responded with rebuttal evidence. 

The referee and California Supreme Court decided not to take the former

prosecutor at his word and instead speculated about what the prosecutor

would have done. That decision was unreasonable. Cf. 28 U.S.C.

§ 2254(d)(2).

6 By stipulation, the jury knew that Andrews’s 1967 murder conviction

was for felonymurder stemming from an incident when Andrews, then 16,

and an accomplice robbed a grocery store and the accomplice (not

Andrews) shot and killed a store clerk during the robbery.
ANDREWS V. DAVIS 109

v. Wainwright, where counsel’s decision to present an

alternate strategy at sentencing was reasonable because

evidence regarding defendant’s background could have

opened the door to his prior convictions that had not

previously been admitted in evidence. See 477 U.S. 168, 186

(1986).

In contrast, in cases where a defendant’s prior criminal

history is known to the jury, counsel performs unreasonably

in not presenting a range of persuasive mitigating evidence

about the defendant’s background that “no other source had

opened up.” See Rompilla v. Beard, 545 U.S. 374, 383, 390

(2005) (finding counsel ineffective when counsel knew the

prosecution would introduce at the penalty phase defendant’s

“significant history” of prior violent crimes, but counsel

nevertheless failed to review the readily available prior

conviction file and present mitigation evidence therefrom);

see also Williams, 529 U.S. at 368–69, 395 (finding counsel’s

performance deficient when the jury knew of Williams’s

extensive violent criminal history, and counsel failed to

review juvenile records that would have uncovered graphic

mitigating evidence of Williams’s “nightmarish childhood”). 

At a minimum, counsel has a duty to conduct the necessary

investigation into his client’s background to learn the range

of mitigating evidence available. See Williams, 529 U.S. at

395–96.

B

In sum, there was no conceivable tactical reason either to

forego the investigation into Andrews’s background or to

forego the presentation of the compelling Mt. Meigs

evidence. Any competent attorney would have concluded

that the Mt. Meigs evidence was the only evidence in this
110 ANDREWS V. DAVIS

case that carried a substantial probability of a different

sentence. That evidence is critical precisely because it

provides the jury with a reason to extend mercy despite

Andrews’s heinous crimes. As such, any competent attorney

would have presented the evidence, argued that the abuse

Andrews suffered as a youth at the hands of his state

custodians explains why he is inured to violence, and urged

the jurors to spare Andrews’s life on that ground.7

The California Supreme Court recognized that the United

States Supreme Court held in Williams that habeas relief was

warranted when counsel failed at the penalty phase to present

to the jury evidence of petitioner’s “nightmarish childhood,”

model behavior while imprisoned, and borderline retardation. 

See Andrews, 52 P.3d at 674. The California Supreme Court,

however, distinguished Williams because, in that case,

counsel’s investigation was “essentiallynonexistent due to an

incorrect understanding of the law.” See id. (citing Williams,

529 U.S. at 395–96). The California Supreme Court is

correct that in Williams, counsel’s failure to investigate was

based at least in part upon his incorrect understanding of the

law. But surely no reasonable jurist would read Williams as

holding that a virtually nonexistent penalty phase

investigation is reasonable so long as it is not based upon a

misunderstanding of the law. Indeed, the United States

7 The California Supreme Court suggested there was “no compelling

connection” between the un-presented mitigating evidence and the crimes

Andrews committed. Andrews, 52 P.3d at 672 (quoting In re Ross,

892 P.2d 1287, 1305 (Cal. 1995)). To the extent the California Supreme

Court suggested a causal nexus is required between mitigating evidence

and defendant’s crimes, the California Supreme Court’s decision was

contrary to Supreme Court law. See Skipper v. South Carolina, 476 U.S.

1, 4 (1986) (noting “well-established” principle that any relevant

mitigating evidence may be considered).
ANDREWS V. DAVIS 111

Supreme Court does not read Williams so narrowly. In

Wiggins, the Supreme Court underscored that in Williams it

held the “failure to uncover and present voluminous

mitigating evidence at sentencing could not be justified as a

tactical decision . . . because counsel had not ‘fulfill[ed] their

obligation to conduct a thorough investigation of the

defendant's background.’” See Wiggins, 539 U.S. at 522

(quoting Williams, 529 U.S. at 396).

The duty to conduct a thorough investigation of a capital

defendant’s background is imposed on counsel to prevent this

very circumstance: a man sentenced to death without

consideration of non-cumulative, readily available personal

history evidence of compelling mitigating value. The

California Supreme Court unreasonably applied clearly

established federal law when it concluded that defense

counsel’s performance was constitutionally adequate in this

case.

III

Under Strickland’s second prong, the California Supreme

Court majority concluded that even if Andrews’s counsel

performed inadequately, Andrews suffered no prejudice from

the omission of the Mt. Meigs evidence at sentencing. That

conclusion too is based upon an objectively unreasonable

application of Strickland and its progeny.

Under Strickland, a capital defendant suffers prejudice

from counsel’s deficient performance when “there is a

reasonable probability that, absent the errors [of counsel], the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death.” Strickland, 466 U.S. at 695. As Strickland clarified,
112 ANDREWS V. DAVIS

“[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome,” not a probability that

the result “more likely than not” would have been different. 

Id. at 693–94. For a state court considering a habeas petition

asserting ineffective assistance of counsel, the inquiry is

straightforward: counsel’s deficient performance prejudiced

the petitioner if he can show “a reasonable probability that at

least one juror” would have recommended a sentence of life

instead of death. Wiggins, 539 U.S. at 537. For a federal

court reviewing a habeas petition filed after the AEDPA’s

passage, the determinative question is whether the state

court’s finding that petitioner was not prejudiced was not just

error, but “was contrary to, or involved an unreasonable

application of, clearly established Federal law as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see Cullen v. Pinholster, 563 U.S. 170, 181

(2011).

In this case, the California Supreme Court concluded

there was no reasonable probability of a life sentence even if

counsel had presented the mitigating evidence regarding

Andrews’s background. Unlike the majority, I would hold

that such a conclusion constitutes an unreasonable application

of federal law that was clearly established at the time of the

state court’s decision.

A

Consideration of the defendant’s life history is a

“constitutionally indispensable part of the process of

inflicting the penalty of death.” Eddings, 455 U.S. at 112. 

The abuse that Andrews suffered at Mt. Meigs epitomizes the

“kind of troubled history” that the Supreme Court repeatedly

has “declared relevant to assessing a defendant’s moral
ANDREWS V. DAVIS 113

culpability.” Wiggins, 539 U.S. at 535; see also id. at 535–36

(holding a different sentencing outcome was reasonably

probable had defense counsel presented evidence that

Wiggins suffered early privation and abuse, as well as

physical torment, sexual molestation, and repeated rape in

foster care). Such evidence is “relevant because of the belief,

long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be

less culpable than defendants who have no such excuse.” 

Boyde v. California, 494 U.S. 370, 382 (1990) (internal

quotations marks omitted).

Without consideration of the compelling and readily

available Mt. Meigs evidence, Andrews’s moral culpability

could not be fairly gauged at sentencing. See Porter,

558 U.S. at 41. Indeed, the “benchmark” for assessing an

ineffective assistance claim is “whether counsel’s conduct so

undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686. Here, counsel’s failure

to present the evidence of severe abuse that Andrews

suffered, combined with counsel’s failure to present any

substantial mitigation case at sentencing, deprived Andrews

of a fair sentencing proceeding and renders his death sentence

“unreliable.” See id. at 700. At bottom, it was unreasonable

for the California Supreme Court to conclude that if the jury

had heard the Mt. Meigs evidence, there is no reasonable

probability that even one juror would have recommended a

sentence of life instead of death.

The majority disagrees and observes that the Supreme

Court “has found a reasonable probability of a different

outcome when scant and weak aggravating evidence could
114 ANDREWS V. DAVIS

have been presented in rebuttal to strongly mitigating

evidence.” Majority at 47–47 (citing Wiggins, 539 U.S. at

534–36, 537–38). Yet the Supreme Court has also found a

reasonable probability of a different outcome when

aggravating evidence is substantial and mitigating evidence

is compelling. See Williams, 529 U.S. at 398; Porter,

558 U.S. at 40–44. Indeed, at the time of the California

Supreme Court’s decision in this case, no decision by the

United States Supreme Court had excused a failure to present

a compelling mitigation case where one was available.

As the majority recognizes, Williams and Porter are

particularly instructive. In Williams, the Supreme Court held

there was a reasonable probability of a different result at

sentencing if counsel had presented evidence either of

defendant’s “nightmarish childhood” or his diminished

intellectual ability. See Williams, 529 U.S. at 398. Notably,

unlike in this case, Williams’s counsel actually presented

mitigating evidence, including testimony from two neighbors

and Williams’s mother, and “a taped excerpt of a statement

by a psychiatrist.” See id. at 369. Contrary to the majority’s

description of the case, the aggravating factors in Williams

were severe. Two prosecution expert witnesses testified at

sentencing “that there was a ‘high probability’ that Williams

would pose a serious continuing threat to society.” See id. at

368–69. And the jury heard evidence that in the months after

the murder for which Williams was sentenced to death,

“Williams savagely beat an elderlywoman, stole two cars, set

fire to a home, stabbed a man during a robbery, set fire to the

city jail, and confessed to having strong urges to choke other

inmates and to break a fellow prisoner’s jaw.” Id. at 418

(Rehnquist, C.J., concurring in part and dissenting in part)

(quoting Williams v. Taylor, 163 F.3d 860, 868 (4th Cir.

1998), rev’d, 529 U.S. 362 (2000)); see id. at 368 (providing
ANDREWS V. DAVIS 115

the majority’s description of the aggravating evidence,

including that Williams: had committed “two separate violent

assaults on elderly victims,” specifically setting a fire outside

one elderly victim’s house before attacking and robbing him,

and leaving the other elderly victim, a woman, in a

“vegetative state”; was convicted of arson for the fire he set

in the jail while awaiting trial; and had prior convictions for

armed robbery, burglary, and grand larceny).

Despite these strong aggravating factors, the Supreme

Court held that Williams was prejudiced by his counsel’s

failure to introduce the undiscovered mitigation evidence. 

Importantly for this case, the Court stated that the evidence

regarding Williams’s “nightmarish childhood” would have

been enough, standing alone, to sustain a finding of prejudice. 

As the Court expressly held, “the graphic description of

Williams’ childhood, filled with abuse and privation, or the

reality that he was ‘borderline mentally retarded,’ might well

have influenced the jury’s appraisal of his moral culpability.” 

See id. at 398 (emphasis added).

Williams plainly supports the conclusion that the

California Supreme Court unreasonably applied clearly

established federal law in concluding that Andrews was not

prejudiced by his counsel’s failure to introduce evidence of

the extreme brutality that Andrews suffered as a youth. The

total evidence in aggravation, that which was admitted and

that which may have come in as rebuttal evidence concerning

Andrews’s prior violent crimes (which the prosecutor

testified at the state court hearing he probably would not have

introduced), was certainly no greater than the aggravating

evidence in Williams. Similar to Williams, the overlooked

mitigating evidence in Andrews’s case includes severe and

sustained physical, sexual, and psychological abuse. 
116 ANDREWS V. DAVIS

Andrews’s overlooked mitigating evidence is made even

stronger by the fact that the abuse at issue was inflicted in

large part at the hands of his state custodians and was broadly

corroborated by respected authorities, as previously

accounted.8

The Supreme Court’s decision in Porter also

demonstrates the unreasonableness of the California Supreme

Court’s conclusion that Andrews was not prejudiced. 

Although the Supreme Court decided Porter after the

California Supreme Court denied Andrews’s ineffective

assistance claim, Porteris still relevant to assessing prejudice

under 28 U.S.C. § 2254(d).9

See Wiggins, 539 U.S. at 522

8 The Supreme Court later stated that Williams offers “no guidance with

respect to whether a state court has unreasonably determined that

prejudice is lacking” because AEDPA deference was not applied to the

Strickland prejudice question in Williams. See Cullen v. Pinholster,

131 S.Ct. 1388, 1410–11 (2011) (citingWilliams, 529U.S. at 395–97); but

see Williams, 529 U.S. at 415–16 (O’Connor, J., concurring) (“I also agree

with the Court that, to the extent the Virginia Supreme Court did apply

Strickland, its application was unreasonable”). In any event, Williamswas

decided two years before the California Supreme Court denied Andrews’s

habeas petition. Thus, at the time the California Supreme Court decided

Andrews’s ineffective assistance claim, Williams was highly relevant for

determining what omitted mitigating evidence is prejudicial under

Strickland. See Williams, 529 U.S. at 398 (“[T]he graphic description of

Williams’ childhood, filled with abuse and privation, or the reality that he

was ‘borderline mentally retarded,’ might well have influenced the jury’s

appraisal of his moral culpability.”); see also id. at 415 (O’Connor, J.,

concurring) (concluding that Williamswas prejudiced by counsel’sfailure

to present substantial mitigating evidence, including evidence of his

“nightmarish childhood,” and that the Virginia Supreme Court was

unreasonable in concluding otherwise).

9 The majority acknowledges that Porter is relevant to determining

whether the California Supreme Court unreasonably applied Strickland. 

Majority at 59 (“Although Porter was decided years after the California
ANDREWS V. DAVIS 117

(approving reliance on Supreme Court opinions issued after

the state court’s decision, when the merits of the claim were

governed by the holdings of Strickland).

In Porter, due to counsel’s failure to adequately

investigate Porter’s background, the jury that sentenced him

to death never knew that he had been abused as a child and

was a decorated Korean War veteran suffering from posttraumatic stress. See Porter, 558 U.S. at 40–44. The

Supreme Court held that the Florida Supreme Court was

unreasonable in concluding that Porter had not been

prejudiced at sentencing by the omission of this key personal

history evidence. The Supreme Court concluded that without

that evidence, the sentencer was unable to “accuratelygauge”

the defendant’s “moral culpability” and habeas relief was

warranted because confidence in the sentencing outcome had

been undermined. See id. at 41; see also Rompilla, 545 U.S.

at 393 (stating that the relevant test is not whether the jury,

had it heard the omitted mitigating evidence, could still have

returned a verdict of death).10

Supreme Court’s opinion in this case, we give its prejudice analysis

careful consideration, because Porter considered prejudice under AEDPA,

and therefore provides direction for determining what constitutes an

unreasonable application of the prejudice prong of Strickland under

AEDPA.”).

 

10 The majority criticizes my reference to Rompilla, insisting Rompilla

“do[es] not provide any guidance on the issue before us, whether a state

court’s determination that counsel’s deficiency was not prejudicial was an

unreasonable applicationof clearly established Supreme Court precedent.” 

Majority at 65 n.24. But I cite Rompilla for the well-established principle

that the Strickland test for prejudice does not turn on whether the jury still

could have returned a death sentence even if it had heard the mitigating

evidence. See Strickland, 466 U.S. at 694 (“The defendant must showthat

there is a reasonable probability that, but for counsel’s unprofessional
118 ANDREWS V. DAVIS

As in Williams, the Supreme Court in Porter affirmed that

a strong case in aggravation does not preclude the conclusion

that a state court was unreasonable in denying habeas relief. 

Porter stood convicted of two murders and faced

considerable evidence of premeditation, but the Supreme

Court nonetheless held it was objectivelyunreasonable for the

Florida Supreme Court to conclude that Porter had not been

prejudiced at sentencing by the omission of the mitigating

evidence. Porter, 558 U.S. at 31. The same conclusion

applies in Andrews’s case. Despite strong aggravating

evidence, there is a reasonable probability of a different result

at sentencing if the jury had heard the powerful evidence of

the abuse Andrews suffered as a youth. It is unreasonable to

conclude otherwise.

The majority disagrees. Relying on the Supreme Court’s

opinion in Woodford v. Visciotti, 537 U.S. 19 (2002), decided

afterthe California Supreme Court’s decision in this case, the

majority insists it was not unreasonable to hold that Andrews

suffered no prejudice. Majority at 63–64. The majority is

mistaken. The balance of mitigating and aggravating factors

in Visciotti was dramatically different from the balance in

Andrews. In Visciotti, the potential mitigating evidence at

issue was expert testimony addressing the psychological

abuse that Visciotti suffered due to being raised in a

dysfunctional family. See Visciotti, 537 U.S. at 26. Visciotti

involved no allegations of physical or sexual abuse, and the

psychological abuse failed to approach what Andrews

experienced at Mt. Meigs. The aggravating evidence in

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence

in the outcome.”). The test is not whether counsel’s inadequate

performance “more likely than not altered the outcome in the case.” See

id. at 693.
ANDREWS V. DAVIS 119

Visciotti included a prior offense in which Visciotti stabbed

“a pregnant woman as she lay in bed trying to protect her

unborn baby.” See id. Given the strong evidence in

aggravation and the relatively weak mitigating evidence, the

Supreme Court concluded it was not unreasonable for the

California Supreme Court to conclude that Visciotti was not

prejudiced by counsel’s failure to introduce the dysfunctional

family evidence. Id. at 26–27. In contrast, the facts of

Andrews’s case present a very different balance of factors

and compel a different result. The majority’s contention that

the Mt. Meigs evidence at most carries only the “mere

possibility of a different outcome,” Majority at 66, grossly

underestimates the mitigating force of that evidence. The Mt.

Meigs mitigating evidence in Andrews is extraordinarily

strong. The majority’s reliance on Visciotti is unfounded.

B

The California Supreme Court also reasoned that

Andrews was not prejudiced because the Mt. Meigs evidence,

in addition to evidence of abuse Andrews suffered as an adult

in the Alabama prison system, is “not conclusively and

unambiguously mitigating” but “could equally have proved

a double-edged sword.” See Andrews, 52 P.3d at 670–71. 

According to the California Supreme Court, “[r]ather than

engendering sympathy” such 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” or could have confirmed Andrews had “an antisocial

personality.” See id. at 671. That conclusion is unreasonable.

The jury already knew from Andrews’s heinous crimes of

conviction and from the stipulated prior convictions that

Andrews was antisocial and “had become desensitized and
120 ANDREWS V. DAVIS

inured to violence and disrespect for the law.” No person

considering Andrews’s crimes of conviction would conclude

otherwise. But the jurors knew absolutely nothing about

Andrews’s past that might explain the person he had become

and provide a basis for the exercise of mercy.

The severe and sustained abuse that Andrews suffered at

Mt. Meigs provides such evidence. The California Supreme

Court agreed the evidence presented at the state court hearing

“leaves no doubt” Andrews “endured horrifically demeaning

and degrading circumstances.” See Andrews, 52 P.3d at 670. 

Yet the jury that sentenced Andrews to death knew nothing

about those circumstances. Had the jury heard that for two

years as a teenager Andrews was subjected to brutal,

inhumane, and degrading abuse by his state custodians at a

segregated reform school for African-American children in

Alabama in the 1960s, there is a reasonable probability that

at least one juror would have been swayed to exercise mercy

and spare Andrews’s life. There is “too much mitigating

evidence that was not presented to now be ignored.” Porter,

558 U.S. at 44 (internal quotation marks omitted). No

reasonable person would conclude otherwise.

The prejudice to Andrews caused by the omission of the

Mt. Meigs evidence at sentencing is compounded by the fact

that counsel presented no sympathetic mitigating evidence at

Andrews’s sentencing. Indeed, at the penalty phase of

Andrews’s trial, counsel called no witnesses and offered no

statements from psychologists, family, or friends. In short,

defense counsel presented almost nothing to counter the

prosecution’s portrayal of their client. The clearlyestablished

law of Strickland recognizes that some errors by counsel will

have “pervasive effect . . . altering the entire evidentiary
ANDREWS V. DAVIS 121

picture.” See Strickland, 466 U.S. at 695–96. Andrews is

such a case.

It is unconscionable that Andrews should be sentenced to

death without consideration of the egregious abuse that he

suffered at Mt. Meigs. Had counsel presented the Mt. Meigs

evidence at sentencing, it is reasonably probable that at least

one juror would have been moved to exercise mercy and

spare Andrews’s life. It is objectively unreasonable, and a

legal fiction, to conclude otherwise.

IV

The district court’s conditional grant of sentencing relief

should be affirmed. I respectfully dissent.