F OR P UBLICATION



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

J E S S E J A M E S A

N D R E W S , Petitioner-Appellant

,

v

.

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

. No. 09-99012

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

J E S S E J A M E S A

N D R E W S , Petitioner-Appellee

,

v

.

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

. No. 09-99013

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

ORDER AND OPI NI ON

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

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

F iled Aug ust 1, 2017A N D R E W S V

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

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

Order; Opinion by

J udg e I k uta; Dissent by

J udg e Murg uia

SUMMARY *

Habeas Corpus/Death P e nalty

The panel withdrew an opinion f iled Aug ust 5, 2015; deni e d a s moot a petition for r ehearing and petition for reheari n g en banc; and filed a superseding opinion in an appeal and c ross-appeal arising f rom J esse J ames Andrews’s conviction and capital sentence for three murders.

The panel rever s e d t h e district court’s g rant of relief on Andrews’s ineffec t i v e

- a s s i s t a n c e c l a i m t

hat he was p rejudiced by his counsel’s failure to investig ate and present additional mitig at i n g evidence at the penalty phase of his trial. The panel held that under 28 U.S.C. § 2254(d)(1), the California Supreme Cour t d i d not unreasonably apply Supreme Court precedent in concluding that Andrews was not prejudiced b y any deficient performance.

The panel dismissed as unripe the sole claim certified b y the district court for appeal – that California’s use of its lethal injection protocol to ex e c u t e Andrews would violate his

* T h is su m m ary co n stitu

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

co u rt staf

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

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

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Eighth A mendment rig hts. The panel held that because no new protocol was in place at the time the district court ruled

on the claim, the district c ourt e rred in entertaining the c laim.

The panel denied Andrews’s request to certify for appeal his uncertified c l a i m s o f unconstitutional delay b etween sentencin g a nd ex e cution, ineffective assistance of counsel, failure to disclose material ex culpat o r y e vidence and false testimony , and destruction of evidence.

The panel held that the district c o u rt did not a buse its discretion in deny ing Andrews’s motion for an evidentiary hearing

. Dissenting in part, J udg e Murg uia would a f f irm the district court' s order g ranting Andrews re l i ef due to ineffective assistance of coun s e l at the penalty phase of his trial.A N D R E W S V

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COUNSEL

Michael B urt (arg

ued), L a w Office of Michael B urt, San F rancisco, C a l i f

o r n i a, f o r P e t i t i o n e r

- A p p e l l a n t / CrossAppellee.

Xiomara Costello (argu e d), Sarah J

. F arhat, Shira Seig le Markovich, and A. Scott Hay ward, Deputy Attorney s General; L a

nce E. W inters, Senior Assistant Attorney General; K eith H. B o rjon, Supervising Dep u t y Attorney G e n e ral; Dane R. Gillette and G erald A. Eng ler, Ch i e f Assistant Attorney s General; E dward C

. DuMont, Solicitor General; Michae l J

. Mong a n , Deputy Solicitor General; J ames W illiam B ilderback I I
, Supervising D e p uty Attorney General; O ffice of the A ttorney G eneral, L os Ang eles, California; for Respondent-Appellee/Cross-Appellant.

ORDER

The opin i o n f

iled Aug ust 5, 2015, and reported at 798 F.3d 759, is withdrawn. B ecause the court’s opinion is withdrawn, appellant/cross a ppellee’s petition for rehear i n g and petition f

or rehearing en b anc is moot. A superseding opinion will be filed concurrently with this or d e r. F urther petitions for rehearing and p etitions for rehearin g en banc
may be filed.A N D R E W S V

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OP INION

I KUTA, Circuit J udg e:

J esse J ames Andrews appeals from the district cou r t ’s denial o f a ll but o n e of the claims raised in his petition f or a writ of habeas corpus under 28 U .S.C. § 2254. The state cross-appeals the district court’s g rant of relief on Andrews’s claim that his counsel’s a ssistance was ineffective at the penalty p hase of his c apital murder trial. W e d i s m i s s a s unripe the cl aim the d istrict court certified for appeal, a nd deny Andrews’s motion to ex pand the certific a t e o f appealability to include u ncertified cl aims. W e reverse the district c o u rt’s g rant of relief on the ineffective assistance claim because, under 28 U.S.C. § 2254(d)(1), the California Supreme Court did n ot unreasonably apply S u p r e m e Court precedent in concluding that Andrews was not prejudiced b y any deficient performance by his counsel.

I

A

On December 9, 1979, p olice were c a l l e d to a L os Ang eles apartment, where they foun d t he bodies of three murder victims. People v. Andrews

, 776 P.2d 285, 2 88 (Cal. 1989). T he murder victims were Preston W heeler, who lived in the ap a r t m e nt, Patrice B randon, a n d Ronald Chism. Id

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

W h eeler had been stabbed in t he chest six times and shot in the neck at close rang e with either a .32– or .357– calib e r w eapon. HisA N D R E W S V

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face and head were bruised, a n d his face h ad been slashed with a knife. B rando n a nd Chism had been strang led with wi r e coat hang ers. Their fa ces were b ruised, Chism’s

ex tensi v ely

. B randon’s anus was ex tremely dilated, bruised, r eddened and torn, consistent with the insertion of a penis shortly before her death. There was also rednes s a r ound the openi n g of her vag ina, a nd vag inal samples

r e v e a l e d the presence of semen a n d spermatoz oa. All three v ictims were bound hand and foot.

Id

. Approx imately a y ear later, police arrested Char l e s Sanders in connection with the murders. Id

. Sanders entered in t o a plea a g reement, in w hich he pleaded g uilty to three
counts of second d eg r ee murde r, admitted a g un

e n hancement, and ag reed to cooperate with the prosecution, in ex ch an ge f

or a sentence of 17 y ears to life in prison. Id

. During his interrog ation by the p olice, Sanders g ave b o t h a tape-recorded and a written statement. Id

. H e als o t e s t ified at Andrews’s trial, and described the crime as follows:

Sanders testified that he and [ Andrew s] devised a plan t o rob Wheeler, a drug dealer. [ A n d r e w s ] a r m e d h i m s e l f w i t h a

. 3 57 mag num and g ave Sanders a .38–or .32–caliber automatic. On the evening of the murders, t h e y visited their friend, Carol B r ooks, who l i v e d in the same apartment building as W hee ler, and then w ent to W h eeler’s apartment. I n r e s ponse to theirA N D R E W S V

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knocking

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

, let them in. Also insid e t he apartment was a w oman (Patric e B randon). After smoking some marijuana w ith W heeler, [ A ndrews] and Sanders drew their g uns. Sanders tied W h eeler and B randon with belts and socks, put on a pair of g loves, and beg an to search the apartment for drug s and money

. E x c ept for some powder on a saucer whic h
appear ed to be cocaine, the search was

u n s u c c e s s ful. [ Andrews] question e d Wh e e l e r , who de n i e d having any drug s or money

. Say i n g he would make B r andon talk, [ Andrews] drag g ed her into the kitchen a nd closed the doo r

. S anders remained in the living room with W heeler.

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

sex

. W hen [ Andrews] c ame o ut of the kitchen shortly thereafter, Sanders saw B randon’s pants around her ankles.

[ Andrews] p u t h is g un in W heeler’s mouth. He threatened to k i ll W heeler and B randon unless W hee l e r revealed the location of the drug s. W heeler s a i d t he ‘dope’ was in the attic, a nd pointed out a trap door leading up to it. Sa n d ers climbed into the attic. W hile in the attic, Sanders h e a r d two shots. W hen he

came down

, [ Andrews] told him he had shot W h eeler because the latter h a d t r ied to jump
out the window. Sanders asked if W heeler

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

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‘standing rig ht u

p’ o n Wheeler when he fired the g un

. . . . W hen Sanders asked about B r andon, [ Andrews] r eplied h e h ad killed her before leaving

the kitchen.

W h ile [ Andrews] a

nd Sanders were cleaning
up the apartment, Ronald Chism knocke d on the door and asked if every thing was all rig ht. [ Andrews] said W hee l er was home a nd invited him inside. [ Andrews] then hit Chism

on the h ead, tied him up, and took him into the bathroom. Sanders saw [Andrews] sitting astride Chism’s back, joining and separatin g his c lench e d f

ists in a tug g ing motion, apparently strang ling C h i s m. Sanders then

saw [ Andrews] g o into the kitchen and choke Brandon with a wire clothes h ang er. W h e n the two left the a

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

In r e A n d

rews , 52 P.3d 656, 658 (Cal. 2002) (alterations, citations, and internal q

uotation marks omitted). Andr e w s was eventually

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

At trial, the jury h eard Sanders’s testimony as w ell as the testimony o f Carol B rooks. B r ooks confirmed that Andrews and Sanders visited her o n the nig ht of the murders and told her about their plan to “ g e t some money ” from W heeler. People v. A n d

r e w s , 776 P.2d at 2 89. A week after the incident, S a n d e rs told her about his involvement in the murders. Id

. Then, a few w eeks later, Andrews confessed to her that he shot W heeler, had sex with B ran d o n, and took $300 during the robbery

. I d

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The prosecution also presented fing erprint evidence. Id

. Police ex p erts analy

z ed 50 prints l i fted from the apartment; three prints belong ed to Andrews. Id

. One fing erprint was found on a coffee table in W heeler’s living r oom. I d

. T wo palm prints were found on the kitchen floor, on either side o f the spot where B randon’s body was found, the left palm print being about a foot from her body

.

The defense primarily focused on undermining Sanders’s credibility

. Id

. T wo jail inmates who had been incarcerated with Sander s testified. I

d

. They stated that, while Sanders

was incarcerated with them, he made statements sugge sting he planned to lie about the m u r ders to shift blame onto Andrews and away

from himself. Id

.

The j ury deliberated for three day s b e fore finding Andrews g uilty of murder. 1 The jury also found three special circumstances to be true. Two special circumstances r elated
to t h e o f fense conduct: ( 1) multiple murder and robbery murder, based on the murd ers of W heeler, B randon, a nd Chism, a nd the r o b bery of W heeler, and (2) rape-murder, based on t h e rape and murder of B randon. In re Andrews

, 52 P.3d a t 659. The third special ci r c u mstance was Andrews’s conviction f

or murder of a g rocery sto re clerk in 1967. Id.

At the penalty phase, both the pros e c u tor and defense counsel made brief presentations. The prosecutor presented evidenc e throug h a joint stipulation. Id

. He noted that the jury had al ready found that A ndrews had been convicted o f murder in 1967. The parties also stipulated that Andrews h ad

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

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been convicted of armed robbery in May 1968, convicted o f escape in November 1969, and convicted of robbery in J u ne 1977. I d

. The stipulation did not describe the f acts o f the offenses und e r ly ing these additional convictions. The prosecution also submitted photog raphs of the dead bodies o f Patrice B randon and Ronald Chism as they were found by the police in the apartment; the phot os had been ex cluded a t the
g uilt phase on the g round they were unduly inflammatory

. Id

. F inally

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

.

The defense evidence consisted of two sworn statements that were read to the jury

. Id

. The statements described facts

u nderlying the incident in September 1966 that forme d t h e b a sis of Andrews’s 1967 conviction for murder. Accor d i n g to the statements, Andrews and a 17-y ear-old companion, both of whom were armed, attempted to rob a g r ocery store, and the companion fired three shots, killing the g rocery store clerk. Id

.

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

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

. Id

. He pointed out that Andrews was o nly 15 y ears old at the time of the murder of the g r ocery store clerk, and was n ot the shooter. Id

. He portray ed A ndrews ’ s conduct as less blameworthy because the murders occurred while An drews, Sanders, W h e e l er, and B randon were under the influence o f illeg al drug s. Id. a t 659–60. Fi n a l l y , he emphasiz ed that other mur d e rers had received life without the possibility o f parole despite the jury ’s finding of special circumstances, a nd despite more blameworthy conduct. Id. at 659

. He pointed
out that in this very case, Sanders r eceived a sentence of onlyA N D R E W S V

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17 y ears to life. Id. a t 6 60. The prosecution made no rebuttal.

After one day of deliberations, the jury returned a verdict imposing the death penalty for each o f the t h r e e murder
counts. The court s e n t e n ced Andrews to death on J une 8, 1984. The California Supreme Court a ffirmed the conviction and sentence on direct appeal on Aug u s t 3
, 1989. People v

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

B

Andrews filed petitions f or state post-conviction re lief, claiming

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

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

1

The California Supreme Court appointed a r eferee to take evidence and make factual finding s on six questi o n s r elated
to A ndrews’s penalty phase ineffective assistance o f counsel claim. I n re Andrews

, 52 P.3d at 659. Under California law, “[ b] ecause appellate courts are ill-suited to conduct evidentiary he a ring s, it is customary for appellate courts to

a p p o i n t a r e f

e r e e t o t a k e e v i d e n c e a n d m a k e recommendations as to the resoluti o n o f disputed f actual issues.” P eople v. Romero
, 883 P.2d 388, 393 (Cal. 1994), as modified o n denial of reh’g (J an. 5, 1995). W hile a referee’s finding s on factual questions a r e not b inding o n the California Suprem e Court, they “are entitled to g reat weig ht whenA N D R E W S V

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supported by substantial evidence.” In re Johnson

, 957 P.2d 299, 3 0 7 (Cal. 1998). The six q uestions provided to the referee were:

1. W hat mitig ating character and backg round

ev i d ence c o uld have b een, but was not, presented by

petitioner’s trial attorney s at his penalty trial?

2. W hat investig ative steps by trial counsel, if
any , would have led to e ach s u ch item o f information?

3. W ha t i n vestig ative steps, if any , did trial counsel t a k e in an effort to g ather mitig ating evidence to be presented at the penalty phase?

4. W hat tactical or financial c o n straints, if
any , weig hed ag ainst th e i nvestig ation o r presentation o f mitig ati n g c h aracter a nd backg round evidence at the penalty phase?

5. What evidence, damag ing to petitioner, but
not presented by the p rosecution at the g uilt o r penalty trials, would l ikely have been presented in rebuttal, if petition e r h ad introduced a

ny such mitigating character a nd backg round evidence?

6. Did petitio n e r himself request that either the inves tig ation or the presentation o f mitig ating ev i dence at the penalty phase be curtailed i n a n y manner? I f so, w hat specifically

did petitioner request?A N D R E W S V

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

T h e referee r eceived the testimony of more tha n 50 witnesses over the span o f six y ears. Id. at 6 60. As a threshold matter, the referee pointed out two factors that the California Supreme Court should take i nto account in evaluating the information obtained in the reference hearing

. F irst, the r e fe r e e acknowledg ed that “[ t] he leng th of time available to develop, ex pan d and refine the depth of the evidence presented at this reference h earing obviously creates

an artifici a l setting and this court notes that the abundance and massiveness of the e v i d e n c e presented could n ot a nd would not h a ve been the same in an orig inal trial.” Id. at 660 n.2. A mong other t h i n g s, “[ s] trateg ic considerations alone would h av e undoubtedly r esulted in a g reater refinement o f the quality o f evidence presented.” Id. Second, the referee’s consideration of counsel’s w ork was hindered by the fact that the lead counsel, G erard L enoir, d ied before the refer e e conducted the h earing

, and only the secondary counsel, Halvor Miller, was available. Id. at 663 n.7. Miller c ould not recall the full scope of L e noir’s investig ation. Id. at 663.

I n her report, the referee provide d one-parag raph summaries and detailed factual finding s in respo n s e t o e ach question. The California Supreme C o urt both summariz ed the referee’s finding s and ex plained the weig ht it ga v e t o these finding s. Id. at 660–65.

I n response to the first question (what mitig ating character and backg round e vidence could have been, but was not, presented by petitioner’s trial attorney s at his p e n alty trial), the referee identified three bro a d ca teg o ries o f mitig ating evidence that were a v ailable but not presented t o the jury : Andrews’s family backg round; the conditions o f hisA N D R E W S V

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confinement in a juvenile reform school and in the Alabama
p r i s o n sy stem; and his mental h ealth. Id. at 660. A s summariz e d in the court’s o pinion, the r eferee’s report f ound the followin g r e g arding Andrews’s backg round. W hen he

was very y oung , Andrews’s a lcoholic parents separated, and his mother left him to be raised b y his g randparents and a unt in a larg e family home with h is sibling s and cousins, located in a poor, seg reg ated neig hborhood o f Mobile, Alabama. Id

. The refer e e d escribed A ndrews’s g randfather as “loving

, benevolent, and responsible,” i d

. , and the court added that Andrews’s mother reg ularly sent money and clothin g t o h er children and that Andrews’s upbring ing and early family life

were “relatively stable and without ser ious privation o r abuse,” id. at 670. W hen Andrews was around nine o r ten, his mother r eturned home with children by another marriag e , of whom Andrews was jealous. Id. a t 6 60, 670. Around that time A ndre w s ’s g randfather, a “pivotal fig ure” in his life, died. Id. at 660 (internal q uotation marks omitted). Andrews became withdrawn, skipped school, and at ag e 1 4, committed

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

.

Summariz ing the referee’s report, the California Supreme Court s t a ted that “[ a ] t Mt. Meig s, 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 d escribed “i n human conditi o n s , i n adequate food and clothing and severe beating s” with “sticks, broom handles, tree limbs, and hoe handles

. . . or fan belts.” Among o ther thing s, the referee f o u n d t hat Andrews “was s ubjected to beating s, brutality

, inadequate conditions a

nd sex ual p redators.” Id. at 661. F urther, “[ h] is passiveness and sm a l l p hy sique caused him to be a targ et o fA N D R E W S V

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older, toug her boy s , fr o m whom no protection or separation was provided.” Id.

After his release from M t

. Meig s, Andrews beg an to associa t e with F reddie Square, an older boy with “manipulative a n d criminal tendencies.” Id. I n September 1 9 66, three months after A ndrews’s release, Andrews a n d Square entered a g r ocery s t o r e , drew g uns, and announced that they w e r e c o n d u cting a robbery

. Id. W hen “the store clerk plac e d h i s h a

nd d own the front of his apron,” Square shot the clerk, killing him. Id. Andrews “acted as a lookout in the robbery

, b ut play ed a more active role when h e a n d Square r obbed a tax i d ri v er during their g etaway ,” and used the tax i as a g etaway c a

r. Id. At the reference hearing

, Harry W o odall, the driver o f the stolen tax i, testified that Andrews and Square robbed him at g unpoint. Id. at 6 6 5

. W h ile pointing a g un at W oodall, Andrews twice said, “L et’s shoot him.” Id. Andrews and Square stole Woodall’s wallet, then ordered him out of the tax i a n d fired three shots at him; Andrews f

i r e d at least two of the shots. Id. I n 1967, Andrews was convicted of murder based on the g rocery store incident, and in 1968, he was convicted of armed robbery of
t h e t ax i driver. I

d. at 6 61 n.4. J ust before he turne d 1 8
, h e

was c ommitted to Alabama stat e p r i s o n

. Id. at 661. He escaped from prison a n d w a s convicted of that offense in 1969. Id. at 659. He remained in prison until 1976.

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

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

severe overcrowding

, racial seg reg ation,A N D R E W S V

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substandard facilities, n o s ep aration of the toug her inmates from y oung er or sm aller inmates, constant violence, t h e persistent threat of sex ual assaults and the constant pres e nce of sex ual pressure, the availability and n ecessity of weapons by al l inmates, a nd deg rading c onditions in disciplinary modules. [ Andrews] not o nly received beating s but was also personally

subjected to sex ual assaults.

Id

. at 661 (internal quotati on marks o mitted). The referee stated that Andrews “ w as rarely the instig ator o f v iolence,”

was “the p r e y r ather than the predator” w hen h e was involved, and was often a targ e t of violence due to his small
stature. Id

. at 662 (interna l q u o t a t ion marks omitted). He also “appeare d to adjust well when the structure permitted”

a n d, “when circumstances permitted, he tended to ho l d positions of responsibility .” Id

. At the same time, however, Andrews “ was personally involved in violence, including the stabbing s of two inmates who had been threatening him.” Id

. at 661 (internal quotation marks and alterations omitted).

Shortly a fter his release from prison i n 1976, Andrews
eng ag ed in a

n attempted r obbery of a laundry

. Id. A ccording to testimony at the reference hearing :

Mobile Police Officer Pettis t e s t ified that on March 23, 1977, he responded to a r o b bery call. Entering the s t ore from which the c all
came, he and othe r officers saw [ Andrews] holding a cr y ing y oung woman hostag e with

a c ocked g un at her head. He told the officers
to leave and “continued to repeat, ‘Someone’s
g oing to get shot, I ’m g oing to shoot.’” TheA N D R E W S V

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officers withdrew. Ultimately

, [ Andrews] surrendered to the o fficers after releasing the
y oung w o m a n a

nd another woman whom he had also held hostag e.

Id

. at 665. A ndrews was arrested f or the robbery and held in Mobile County J ail. Id. a t 661. After a fa i l e d attempt to escape from the jail, h e succeeded in escaping on his second try , and fled to California. I d. at 661 & n.5.

I n California, Andrews met Debra Pickett, with whom he had a stable relationship. Id. at 661. The couple had a child, and Andrews hel d a j o b during this time. I d. B ut b y December 1979, Andrews had resumed using cocaine a nd left his job and f

a m i l y

. Id

. Soon after, he committed the three murders at issue here. Id.

The referee al s o described the testimony f rom mental health ex p erts that could have been presented at the penalty phase. Summariz ing the referee’s report, the California Supreme Court noted that defe n s e ex perts diag n osed Andrews with a rang e of mental disorders, including attention deficit disorder, post traumatic stress disorder ( P TSD), a nd mild t o m o d erate org anic brain impairment, in part d ue to drug use and possibly due to a head injury in prison. Id

. The defense ex p erts opined that Andrews’s learning disability

, the adverse c i rcumstances of his childhood, the impact of the correctional sy stems, and the PTSD made his commission o f the murders and sex ual assault more understandable and less morally culpab l e

. I

d. a t 661–62. The ex perts g ave specific

ex a mples of h ow Andrews’s impairments a nd the b rutal conditions of incarceration made it difficult f or him to avoid getting into trouble with the law. Id. a t 661–62, 670. F o r

ex a mple, one defense psy chiatrist testified that W h eeler, o neA N D R E W S V

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of the three victims in the December 1979 murders, h ad called Andrews a “ fag g ot” a f e w d a y s before the murders

occur r ed, and Andrews’s PTSD would predispose him to overreact to the slur. Id. at 6 80. The psy chiatrist concluded that Andrews was “affected by serious emotional disturbance when he committed the murders.” Id.

The California Supreme Court then recounted the

r e f e r ee’s finding s on questions two, three, and four. Thes e questions addressed the investig ative steps trial counsel took
to g ather mitig ating evidence f o r the penalty phase, steps the trial counsel could have taken to do so, and t h e constraints that weig hed ag ainst the tria l c ounsel investig a ting o r presen t i ng mitig ating c haracter a nd backg round evidence at the penalty phase. Id. at 662–64. Accordin g to the referee, trial counsel hired defense investig ators for the g u i lt phase, while the counsel themselves did the investig a tive work for the penalty phase. Id. at 6 63. The trial counsel took two trips
to Mobile, one in 1983 and another in 1 984. On the f irst trip, they spent a day searching court records for Andrews’s prior

c o n victions and documents relating to h is backg round. Id

. They also searched for relatives and potential w itnesses in Andr e ws’s neig hborhood. Id. On the second trip, counsel ob t a ined information about Andrews’s p rior murder conviction at the county courthous e

. Id. Counsel also
trav e l ed to Pensacola, F lorida, where they interviewed Andrews’s mother. Id. During the cour se of the interview, they obtained information that Andrews was a slow learner, that his g randparents raised him, and that he started g etting into trouble as a teenag e r. I d

. Miller remembered telling Andrews’s mother that if he obtained Andrews’s permission
to o btain information from f amily members or other contacts, he or L enoir would contact her for further information. Id.A N D R E W S V

. D A

V I S 19

The California Supreme Cour t a l so summariz e d the referee’s finding s about the constraints placed on trial counsel in conducting their penalty phase investig ation, thoug h the death o f L enoir l i m i t e d this aspect of the referee’s investig ation. Id. at 6 63–64. According to the referee, there

were tactical, rather than financial, constraints. I d

. Miller recalled the main tactical constraint as “the a d amancy o f petitioner’s o pposition to having his family

, and in particular his mother, testify

at the trial.” Id. a t 664. According to the referee, “Mr. Miller was very consistent in his t es t i m ony reg arding p etitioner’s r efusal to cooperate in this area, a nd this position is supported c i r c u m s t a ntially by statements made b y petitioner as well as testimony from the prosecutor.” I d

. Miller stated that Andrews h ad threatened t o disrupt the proceeding s if his directions were not followed, and b o t h counsel b elieved this th r e at w a s g enuine. Id. “Acceding to these wishes,” neither Miller nor L enoir “pursued a f ull investig ation of petitioner’s backg round or family and never learned the names o f family members with one or two

ex c e ptions.” Id.

I n a ddition to the constraints imposed b y Andrews, the referee found that counsel were concerned about the effects of using prisoners as witnesses. I d. Miller doubted t h at jurors would be impressed b y the c redibility a nd demeanor o f the prisoners, and he was concerned that calling prisoners a s witnesses would risk disclosure of Andrews’s misconduct in prison. Id. The referee f ound that Andrews h ad been involved in two stabbing s of other inmates and had escaped from c ustodial facilities on two occasions. Id. F urther, the referee f ound that the inmates who provided testimony at the reference hearing had “s u b stantial v iolent criminal records and these offenses included a substantial number of e scapes.” Id. F inally

, Miller testified that he and L enoir decided not toA N D R E W S V

. D A

V I S 20

pre sent evidence about Andrews’s u pbring ing

, because the house and neig hborhood in w h i ch Andrews g rew up resembled the house and n e ig hborhood in which Miller was raised, and so counsel thoug h t a “pover t y -presentation” lacked viability

. Id.

T h e California Supreme Court a lso summariz ed t h e referee’s views on additional investig ative steps that counsel could have taken. I

d

. at 6 62–63. The referee f ound that obtaining information reg ardin g the circumstances o f Andrews’s upbring ing

, the impact of the c o r r e ctional faciliti e s i n Alabama and A ndrews’s adult ex periences, a nd
t h e psy chiatric aspects of A ndrews’s history did n ot call f o r “any ex traordinary efforts b ey ond simple persistence.” Id. at 662. The referee believed that Andrews’s mother could have provided more information about Andrews’s upbring ing a nd directed c ounsel to other family members and acquaintances who cou ld have provided g eneral information reg arding schooling issues. I

d. Counsel could have obtained addresses and information about additional w itnesses throug h publicly available docu m ents or throug h word o f mouth. Id. The referee also believed that “[ s] everal areas o f inquiry we re

a v a ilable relating to petitioner’s e x periences in th e

corre c t i o n a l sy stem in Alabama.” I d. Counsel could have obtained pri s o n r ecords from the juvenile and adult correctional sy stems and co u ld have contacted inmates referenced in those r ecor d s

. I d. Or counsel could have conducted “standard leg a l r esearch of public records relating
to lawsuits involving the s e institutions.” Id. W hile acknowledg ing that “petitioner’s cooperativeness was a sig nificant issue,” the referee found that counsel cou l d h a v e developed the information presented at the reference h earing “throug h outside sources in the absence of any cooperation from the petitioner.” Id. at 663.A N D R E W S V

. D A

V I S 21

I n addition, althoug h th e r e w a s “no sig nificant written history ” in the area of mental health, and there was little evidence of “family members having m ental impairments,” the r eferee found that counsel could have appointed
psy chiatric ex perts. Id. at 662. The r eferee a cknowledg ed that “[ a ] ny such inquiry may not necessarily have resulted in the availability of evidence of the diag noses o f org anic brain impairment, learning disorders, or of p o s t traumatic stress d i s order.” Id. A ccording to the referee, “[ t] he q uality o f standardiz ed personality tests was n ot the same, the knowledg e of post traumatic stress disorder was in an infancy stag e, and the resulting d i a gn osis may not necessarily have been favorable to the petitioner.” Id. at 662–63.

I n addressing question five (what evidence, damag ing to petitioner, but not p resented by the p r osecution at the g uilt o r penalty trials, w ould likely have been p resented in r ebuttal, if petitio n er h ad introduced any such mitig ating character a nd b ackg round evidence), the referee f o u n d t h a t t h e prosecution’s rebuttal p resentation could h ave included

e vidence about two o f Andrews’s p rior convictions. Id. at 664. F irst, the prosecutor could have presented testimo n y from the tax i d river in the 1968 r obbery

, who would have testified he heard A ndrews say “[ l] et’s shoot him,” and then f ired at least two shots at him. Id. at 665. Second

, t h e prosecution could have informed the jury about Andrews’s attempt to rob a laundry business following his release from prison in 1 976, which involved holding two women hostag e , one w ith a g un to h er head. I d

. at 6 61, 665. The jury h ad heard that Andrews was convicted o f these offenses, b ut it did
not hear the facts o n which the conviction was based; the prosecutor could have introduced a complete de s cription o f
t h e underly ing events as ag g ravating evidence, to sho wA N D R E W S V

. D A

V I S 22

Andrews’s g reater moral c ulpability for t h e rape and triplemurder. Id. at 659, 664.

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

. at 665. The state could have p resented ex pert testimony that Andrews did n ot suffer f rom PTSD, but rather suff e red from antisocial personality disorder, r esented authority

, a n d h a d a normal-rang e I Q of 93. Id

. A second
state ex pert would have testifi e d t h at Andrews’s ability to hold a job a

nd maintain a stable r e l a t i o nship with Debra Pickett b e f

ore he committed the murders strong ly indicated
t h a t he had not suffered brain damag e. Id

. I n addition, t h e

ex p ert would have testified that Andrews’s “behavior on the nig ht o f the murders showed planning and thoug ht, and it was therefore unlikely that petitioner wa s under the influence o f PCP when he committed the murders.” Id.

F inally

, in response to question six (did petitioner himself
requ est that either the investig a tion or the presentation o f mitig ating evidence at the penalty phase be curtailed in an y manner, and, if so, what specifically did petitioner r equest),
t h e r eferee concluded that there was no doubt that Andr e w s “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 testim o n y o f witnesses a t the reference hearing

. Id. I n response to specific questioning from the trial court “reg arding his reluctance to have hi s mother called,” and in the face of the trial court’s advice th a t h i s mother’s testimony would be valuable, Andrews “was very p recise in h is response, telling the judg e that h e fully u nderstood and that this was his choice and no

one else’s.” Id. (emphasis omitted). The re f e r ee f urther noted that the lead counsel, L enoir, “represen t e d o n theA N D R E W S V

. D A

V I S 23

record at trial that p etitioner refused to have his mother called and that he ‘had his r easons,’ which Mr. L enoir did not wish
to disclose to the court.” Id. T h e referee also f o und that “petitioner went so far as to threaten to disrupt the trial if his mother were called.” I

d. Andrews’s opposi t i o n t o h aving counsel involve hi s family was c o r roborated by his older sister and uncontradicted by his mother. 2 Id.

2

After c onsidering “the record of the hearing

, the referee’s factual finding s, and p etitioner’s orig inal trial,” the California Supreme Cou r t concluded that “petitioner received constitutionally a dequate representation, and any inadequacy did not result in prejudice.” Id. at 659.

I n r eaching this conclusion, the court beg an by stating the require m e n ts f

or an ineffective assistance of counsel claim under S trickland v. W

ashington

, 466 U.S. 668 (1984). F irst, the c o urt stated that “[ t] o prove a c laim of ineffective assistance of c ounsel at the penalty phase trial, the p etitioner
must establish that counsel’s performance [ (1)] did n ot meet

an o bjective s tandard of reasonableness under prevailing professional norms and [ (2)] that he suffered prejudice thereby .” In re Andrews

, 52 P.3d at 66 7 ( i n ternal quotation marks omitted).

2 A t th e ref

eren ce h earin g , A n d rew s d isp u ted t h e f in d i n g th at h e d id n o t

w an t h is f am ily in v o lv ed

, b u t th e Calif o rn ia Su prem e Co u rt n o ted th at “ th e ref eree cred ited Miller’ s t estim o n y th at [A n d rew s ] o bj ected n ot o n ly to h is

m o th er’ s in v o lv em en t, b u t also t o th at o f an y relativ es,” an d g av e th e ref eree’ s cred i bility d eterm in atio n th e “ g reat w eig h t” to w h ich it is en titled

u n d er Calif

o rn ia law

. Id

. at 6 67

.A N D R E W S V

. D A

V I S 24

Turning first to the deficiency prong , the California Supreme Court concluded that Andrews had not e stablished that his counsel’s performanc e w a s defective. I ts r easoning

was as f ollows. Under Strickland

, “the S u preme Court specifically addressed counsel’s duty to investig ate and made clear courts shoul d n o t e quate effective assistance with

ex h austive investig ation of potential mitig ating evidence.” Id. at 6 68. Any judicial scrutiny “must be hig hly deferential,” and courts m u s t avoid second g u essing counsel’s assistance and must “eliminate the distorting effects of hindsig ht.” Id.
at 6 67 (quoting Strickland

, 466 U.S. at 689). F urther, while “counsel has a duty to ma k e reasonable investig ations or to make a reasonable d ecision that makes particular investig ations unnecessary ,” the Supreme Court made cl e ar that “a particular decision not to investig ate must b e directly assessed for reasonableness in a ll the circumstances, a pply ing

a heavy measure of deference to c ounsel’s judg ments.” Id. at 6 6 8 ( q uoting S trickland

, 466 U.S. at 690–91). Moreove r, “valid st r a teg ic c hoices are possible even without ex tensive investig ative efforts.” Id. ( quoting Burger v. Kemp
, 483 U.S. 776, 794 (1987)). F inally

, “[ 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 p r o p e rly

, on informed strateg ic choices made by the defendant and on information supplied by the defendant.” Id. (quoting Strickland , 466 U.S. at 691).

Apply ing this deferential standard in lig ht o f the evidence developed by the referee, t h e California Supreme Court concluded that “counsel’s decision not to mount a n a ll-out investig a t i o n into petitioner’s backg round in search o f mitig ating c i r cumstances was supported by reasonable professional judg ment.” Id. a t 669 (quoting Burger
, 4 83 U.S. at 794–95).A N D R E W S V

. D A

V I S 25

F irst, the California Supreme Court found tha t co u nsel could have reasonably decided n o t to pursue information from Andrews’s family in lig ht of Andrews’s decision to curtail such an investig ation. The c ourt noted that while “the referee found that counsel c o u ld have discovered the mitig ating evidence presented at the refere n c e hearing with ‘simple persistence,’” the evidence showed that Andrews limited the investig a tion counsel could undertake by insisting that c ounsel n o t involve his family

. Id. at 668. Counsel were within the rang e of profession al competence in comply ing with Andrews’s wishes, because u n der California law, “an attorney representing a d e f endant at the penalty phase of a capital case is n o t r equired to present potentially mitig ating evidence o ver the defendant’s obje c tions.” Id. (quoting People v. Kirkpatrick

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

F ur t h er, to the e x tent counsel interviewed Andrews’s

mo t h e r and attempted to contact f a mily members despite Andrews’s objection, the court found that counsel could have reasonably concluded that the information they o btained was

no t p o w e r fully mitig ating

. Id. at 6 70. Andrews’s mother

“ did not abandon him, but left him w ith an ex tended fami l y including h is ‘loving and responsible’ g randfather, reg ularly

3 Desp ite th e co n strain ts im p o sed b y A n d rew s, th e Calif

o rn ia S u p rem e Co u rt f o u n d th at A n d rew s ’ s co u n sel trav eled to M o b i l e , A lab am a tw i ce to search f

o r relativ es, p o ten tial w itn esses, an d leg al do cu m en ts, an d also
trav eled to Pen saco la, Flo rid a to i n t e r v iew A n d rew s’ s m o th er. In r e An d rews , 5 2 P .3 d at 6 6 3

. T h e d issen t co n ced es as m u ch

, Dissen t at 9 7

– 9 8

n .1
, s o its f

in d in g th at A n d rew s’ s co u n sel co n d u cted “ v irtu ally n o p en alty
p h ase in v estig atio n ” is m erely an ex pressio n o f th e d is s e n t’ s n eg ativ e

ev alu atio n o f co u n sel’ s ef f o rts. Dissen t at 97

. B u t b ecau se th e C alif o rn ia Su p rem e Co u rt d eterm in ed th at co u n sel w as reaso n ab le in n o t p u rsu in g f u rth er i n f o rm atio n , th e o n ly q u estio n raised u n d er th e A n titerro rism an d Ef f ectiv e Death P en alty A ct (A EDP A ) is w h eth er th is w as an ob

j ectiv ely

u n reaso n ab le ap p licatio n

o f Strickla n d

. S ee Rich ter , 5 6 2 U.S. at 1 0 1

.A N D R E W S V

. D A

V I S 26

sent money a

nd c lothing to her children, and returned several
y ears later to remain in the family home.” Id. The testimony from family members g enerally showed Andrews’s e arly upbring ing and family life “to be relatively stable and without serious privation or abuse. All but one of his sibling s completed hig h school, and only one had a minor brush with the law.” Id

. Counsel’s preliminary investig ation showed that Andrews’s childhood w as n ot mitig ating : “Miller viewed petitioner’s childhood surrounding s a s unimpressive because he found them comparable to his own.” Id. a t 673. Andrews “did not suffer a h ome environment that would place his crimes in any understandable contex t or ex plain his resorting
to crime every time he was released or escaped from prison.” Id. at 6 7 0

. 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 a nd h i s former criminal way s would belie the sug g esti o n h e

m erited sy

mpathy due to his p arents’ drinking a n d abandonme n t a n d his g randfather’s death.” Id. at 671. “Under these circumstances, counsel c ould reasonably reject

a backg r ound mitig ation strateg y in f avor of an alternate basis to plead for petitioner’s life.” Id. at 673.

Second, the California Supreme Court found that counsel could have r eason a b l y decided n ot to develop evidence
reg arding the conditions o f Andrews’s confinement. I d

. at 670–71. 4 Rely ing in part on the referee’s findin gs , t he

4 Rely i n g o n th e o pin io n of th e di ss e n t i n g J u stice in th e C alif o rn ia Su p rem e C o u rt’ s o p in io n in th is case, In re An d rews , 5 2 P .3 d at 6 8 1 (Ken n ard

, J

. , d issen tin g ), t h e d issen t claim s th at A n d rew s’ s atto rn ey s

ren d ered in ef

f ectiv e assistan ce b eca u se th ey alleg ed ly f ailed t o ask A n d rew s a n y q u estio n s reg ard in g h i s priso n co n d itio n s. Dissen t at 1 0 0

– 1 0 1 . B u

t u n d er A EDP A , w e d o n o t p erf o rm su ch a d e n ov o rev iew

o f a p etitio n er’ s S trickla n d claim ; rath er, w e a s k o n ly w h eth er th e stateA N D R E W S V

. D A

V I S 27

California Supreme Court noted that while the conditions in which Andrews had b een incarcerated “leaves no doubt petitioner endured horrifically de m eaning a nd d eg rading circumstances,” counsel could reasonably conclude that introducing evidence about these conditions from f ormer inmates c ould have “proved a d ouble-edg ed sword,” because the jury could have had neg ative impressions of the w itnesses and the evidence that would color their views o f Andrews. Id. The witnesses testify ing to t h e conditions under which Andrews was incarcerated inclu d e d “one death row inmate, with serious felony records f or murder, rape, and armed robbery ,” a s well as many inmates w ho “had themselves
eng ag ed i n b rutality while in prison and escaped with some frequency

. ” Id. at 6 71. Th e j u r y could have drawn an “unfavorable comparison” with Andrews in both c ases, a nd “[ r] ather than eng endering sy mpathy

, the evidence could w ell have reinforced an impression of him as a person wh o h ad become d esensitiz e d and inured to violence and disrespect for the law.” I

d

. Moreover, the witnesses’ “criminal histories would a utomatically subject them to impeachment.” Id. The

c o u r t also found that hearing such witnesses testify a bou t bru t a l c onditions in Alabama would “raise the q u estion o f why p e titioner so readily resorted to crime when he escaped the brutal and predatory c onditions 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 A labama p rison conditions would “potentially open the door to additional evidence of petitioner’s criminal

co u rt’ s ap p licatio n o f S trickla n d w as o b j ectiv ely u n reaso n ab le. Ha rrin g to n v. Rich ter , 5 62 U.S. 8 6 , 1 0 1 (2 01 1 ).A N D R E W S V

. D A

V I S 28

past.” Id. at 673. 5 Among other thing s, “evidence of prison conditions could have led to the jury ’s learning of petitioner’s second es c ape from custody ,” which could have “ created a dang er defense c ounsel r easonably soug ht to avoid

. ” I d

. at 669. 6

5 T h e d issen t erro n eo u sly arg u es th at n o reaso n ab le co u n sel co u ld h av e d ecid ed to av o id th e d an g ers o f rely in g o n p riso n er testim o n y b ecau s e “ th e Mt

. M e i g s ev id en ce w as n o t d ep en d en t u p o n testim o n y f

ro m p riso n ers” b u t r a t h e r c o u ld h av e been o f f ered b y th e “ ex p erts an d resp ected

o b serv ers” w

h o testif ied at A n d rew s’ s state co u rt ev i d en tiary h earin g

. Dissen t at 99

– 1 0 0
, 1 0 2

– 1 0 3

. In reach in g th is co n clu sio n , th e d issen t

su b stitu t es its d e n o v o f

in d in g f o r th e f in din g s o f th e Calif o rn ia S u p rem e Co u rt, w h ich h eld t

h at “ w h atev er m itig atin g ev id en c e m ay h av e b een d isclo sed b y p u rsu in g th e co n d itio n s o f i n carceratio n p etitio n er

ex p erien ced

, co u n sel k

n ew su ch ev id en ce w o u ld co m e p rim arily f ro m th e testim o n y o f p etitio n er’ s f ello w priso n ers, m an y o f w h o m w ere h ard en ed crim in als w i th serio u s f

elo n y reco rd s.” In re An drews

, 5 2 P .3 d at 6 6 8

– 6 9

. Un der 2 8 U .S.C. § 2 2 5 4 (d )(2 ), a f ed eral co u rt “ m ay n o t seco n d- g u ess” a state co u rt’ s f

actu al f in d in g s u n less th e state co u rt w as “ n o t m erely w ro n g , b u t actu ally u n reaso n a b l e” in lig h t o f t h e reco rd b ef

o re it. Ta

ylo r v. Ma d d ox , 3 6 6 F

. 3 d 9 9 2
, 99 9 (9 th Cir. 2 0 0 4 ). T h e d issen t co u ld n o t

reaso n ab ly co n clu d e th at t h e Calif o rn ia S u prem e Co u rt’ s co n clu s io n w as

o b j e c t iv ely u

n reaso n ab le g iv en th at it is n o t clear th at th e “ ex perts a n d
resp ected o bserv ers” w

h o testif ied at th e state co u rt ev id en tiary h earin g , w h ich o cc u rred alm o st a decad e af ter A n d rew s’ s s en ten cin g h earin g , w o u ld h av e b een av ailab l e to testif y at A n d rew s’ s sen ten cin g h earin g in 1 9 8 4

.

6 T h e d i ssen t arg u es th at th e C alif o rn ia Su p rem e Co u rt w as u n

reaso n ab le in ex cu sin g co u n sel’ s f

ailu re to d isco v er M t

. Meig s ev id en ce b ased on A n d rew s’ s ref

u sal to in v o lv e h is f

am ily

. Dissen t at 9 9

– 1 0 0

. T h is strain ed read in g o f t

h e Calif o rn ia S u prem e Co u r t ’ s b ro ad statem en t ab o u t

m itig atin g ev id en ce is itself u n reaso n ab l e. In f act, th e C alif

o rn ia S u p rem e Co u rt n ev er stated th at t

h ere w as a co n n ectio n b etw een f am ily restrictio n s

an d p riso n co n d itio n s. Rath er, th e co u rt co n clu d ed th at A n d rew s’ s restrictio n s on h i s f

am ily ’ s in v olv em en t w o u ld h av e lim ited co u n s el’ s ab ility t o d ev elo p An d

rews’s b a ckg ro u n d a n d ch ild h o o d

. In re An drews

, 5 2 P .3 d at 66 2 (n o tin g th at, if p erm i tted

, “ [t]rial co u n sel co u ld h av eA N D R E W S V

. D A

V I S 29

Third, the California Supreme Court found tha t counsel could have reasonably d e c i ded n o t to introduce ex pert testimony on Andrews’s mental he a l th because “[ t] he prosecutor could have ex ploited the testimony of the mental health ex perts to petitioner’s disadvantag e.” Id. at 670. The
court noted th at one of the ex perts at the reference h earing testified “that convicts tend to r eact w i t h r ag e to p erceived insu l t s , b ehavior they find difficult to shed even when discharg ed,” and while this may have ex plained Andrews’s

a c t ions, “ it does not necessarily create a sy mpathetic impression” because “[ t] he j u ry could just as readily infer petitioner was u nable to c ontrol lethal impulses on the slig htest provocation.” Id. Moreover, there would have been

a b attle of the ex perts r eg arding whether Andrews h ad suffered any brain damag e at all. Id. And “[ a] s the r e ference hearing demonstrated, a mental health penalty defense would also have g iven the prosecution several opportuniti e s to repeat the circumstance s of the crime as well as petitioner’s past criminality in questioning the ex perts on both direct a nd

cross-ex a m i n a tion as to whether p etitioner ex hibited an antisocial p ersonality r a t h e r than some form of mental impairment.” Id.

F inally

, the California Supr e m e Court concluded that counsel had been r e asonable in adopting the strateg ic

co n tacted p etitio n er’ s f

am ily to d ev elo p h i s b ack g ro u n d an d ch ild h o o d ”). On th e oth er h an d

, th e Calif o rn ia Su p rem e Co u rt co n clu d ed th at

“ [e]v i d en ce relatin g to th e im p act o f th e j u v en ile an d ad u l t c o r rectio n al
sy stem s co u l d h av e b een d ev elo p ed b y o b ta in in g p riso n r eco rd s a n d

co n ta ctin g i n m a t es ref

eren ced in th o se reco rd s as w ell as co n d u ctin g stan d ard leg al research o f pu b lic reco rd s re l atin g to law su its in v o lv in g th ese in s titu tio n s ,” id

. (em p h asis ad d ed ), an d t

h e m ain co n strain t o n u sin g t h is ev id en ce w as “ t

h e in h eren t p ro b lem s of callin g p riso n e r s a s

w itn esses,” id

. at 6 6 4

.A N D R E W S V

. D A

V I S 30

approach of minimiz ing Andr e ws’s “culpability b y circumscribing his backg round a n d mitig a ting his criminal
respon sibility .” Id. at 669. I n implementing this strateg y , counsel portray ed Andrews as “a follower rather than violently a

ntisocial” and “urg ed the jury to consider in mitig ation the fact that o t h e r s who had committed more heinous multiple murders had been sentenced to life without
poss i b ility of parole and that [ A ndrews’s co-defendant] received a comparatively lig hter sentence.” Id. 7 A c c o rding
to the California Supreme Cour t , this approach “not only presented a reasonable case for sparing petitioner’s life under the ci r cumstances, but foreclosed the introduction o f substantial ag g ravating evidence in rebuttal or on c rossex a mination that could h ave undermined the defense b y depicting petitioner as a g g ressive and desensitiz ed to violence.” Id. (citation omitted). 8

7 T h e d issen t criticizes th e Calif o rn ia S u prem e Co u rt f

o r co n clu d in g th at A n d rew s’ s co u n sel ad op ted a reaso n ab le s trateg y b y , am o n g o th er th i n g s, p o rtray in g A n d rew s as a f o llo w er w

h o w a s less cu lp ab le th an o t h ers. Rely in g ag ain o n th e d issen tin g C a l if orn ia Su p rem e Co u rt J u stice, th e d issen t claim s th at “ th e o n ly ev id en ce b ef o re th e j u ry w as th at p etitio n er

w as th e in stig ato r rath er th an a f o llo w er

. ” D i s sen t at 1 0 4 (q u o tin g In r e An d rews , 52 P .3 d at 6 8 2 (Ken na r d

, J
., d issen tin g )). On ce ag ain

, th e d issen t’ s de n o v o f

act f i n d in g is co n trary to th e Calif o r n i a Su p rem e Co u rt’ s reaso n ab le co n clu sio n b ased o n ev id en ce th at th e j u ry h ad b ef ore it a stip u latio n reg ard in g A n d rew s’ s ro le in th e 1 9 6 6 g ro cery sto re ro b b ery

w h ich p ortray ed A n d rew s as a f o llo w er. In re An d

rews , 5 2 P .3 d at 6 5 9.

8 A n d rew s an d th e d i ssen t arg u e th at th e p ro secu to r w o u ld n o t h av e p u t

o n ad d itio n al reb u ttal ev id en ce. Dissen t at 1 0 7 , 1 1 5. B u t th e C alif o rn ia Su p rem e Co u

rt rej ected th is arg u m en t , f in d i n g th at th e p resen tatio n of

m itig atin g ev id en ce w o u l d h av e pro m p ted th e p ro secu to r to sh i f t t h e f o cu s

o f h i s pen alty p h ase case, p u t o n ad d itio n al w itn esses, an d u se cro ssex am in atio n an d clo sin g arg u m en t t o fu rth er d am ag e A n d rew s’ s

m itig atio n case. In re An drews

, 5 2 P .3 d at 6 6 5

– 6 6

. Co n trary to th e d issen t, Dissen t at 1 0 8 n .5
, f ed eral co u rts m

u st d ef er to t h e state co u rt’ sA N D R E W S V

. D A

V I S 31

Given these valid reasons for n ot p u r s uing Andrews’s backg round, and th e f

a c t that “a leng thy presentation of a broad rang e of witnesses describing in detail various aspects of petitioner’s backg

round” would “have been aty pical f or a p e n a l t y phase defense” at the time o f the trial, id.

, the court concluded that “counsel’s strateg ic decision to limit the scope of their investig ation of mitig a ting backg round e vidence a nd
not to present such evidence at the penalty phase came within ‘the wide rang e of reasonable professional assistance,’” id. at 671 (quoting Strickland , 466 U.S. at 689).

3

The California Supreme C o u r t n ex t confirmed that this conclusion was consistent with then cle a rly e stablished

f actu al f in d i n g s, see, e.g

. , 2 8 U.S.C. § 2 2 5 4 (e) (“ In a p ro ceed in g i n stitu ted b y a n a p p l i c atio n f

o r a w rit o f h ab eas co rp u s b y a perso n in cu sto d y p u rsu an t to th e j u d g m en t o f a S t a t e co u rt, a d eterm in atio n of a f actu al issu e m ad e b y a State co u rt sh all b e p resu m ed to b e co rrect .”). T h e Calif o rn ia Su p rem e Co u rt n o t ed th at it w as “ clear f ro m t h e reco rd th at

m u ch d am ag in g testim on y reg ard i n g p etitio n er’ s o w n v io len t co n d u ct in
p riso n an d o th er circu m stan ces d esen s i t i z in g in m ates t o v io len ce co u ld h av e, an d u n d o u

b ted ly w ou ld h av e, b een elicited o n cro s s- ex am in atio n .” Id

. at 6 6 6

. A m o n g oth er ev i d en ce, th e testim o n y o f th e tax i d riv er in th e 1 9 6 8 ro b b ery w o u ld h av e reb u tted w itn esses w h o ch aracterized p etitio n er

as a f o llo w er b y “ d em on strat[in g ] p etitio n e r c o u ld an d d id tak e th e in itiativ e f

o r v io len ce” an d t

h e p o l i c e o ff

icer’ s testim o n y i n th e 1 9 7 7 lau n dry ro bb ery w o u ld h av e sh o w n “ p etitio n er’ s lack o f relu ctan ce to u s e

v io l e n c e t o o b tain h is en d s.” Id

. T h e co u rt th eref o re co n clu d ed th at

“ s u b stan tial ev id en ce su

p p o rts th e ref

eree’ s fi n d in g th at p resen tin g th e

m itig atin g ev id en ce w o u ld h av e o p en ed t h e d o or to d am ag in g reb u ttal.” Id

. In rep eatin g A

n d rew s’ s claim th at th e pro s ecu to r f ro m A n d rew s’ s t

rial

w o u ld n ot h av e in tro d u ced reb u ttal w i t n e s s es h ad th e def en s e p resen ted

ev id en ce o f A n d rew s’ s p riso n co n d itio n s, Dissen t at 1 0 7
, 1 1 5
, th e d issen t

errs b y co n d u ctin g its o w

n d e n o v o rev iew an d f

ailin g to d ef

er to t h e state

co u rt’ s f actu al f in d in g s u n d er 2 8 U.S.C. § 2 2 5 4 (d )(2 ) an d (e).A N D R E W S V

. D A

V I S 32

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

, 5 29 U.S. 362 (2000), and Burger v. Kemp
, 483 U.S. 776 (1987). The court provided the following reasoning

. I n B u r

g e r , the Supreme Court held that counsel

was not deficient even thoug h he declined to present evidence of the defendant’s n eg lectful, violent family or his mental a nd emotional defi c iencies, because: (1) introducing such backg round e vidence raised a risk t h a t ag g ravating information would b e introduced, and (2) counsel h ad adopted th e r easonable strateg y of minimiz ing his c lient’s culpability i n lig ht of the co-defendant’s dominance. Id. at 672–73 (citing Burger
, 4 8 3 U .S. a t 791–94). The California Supreme Court determined that Andrews’s counsel had even

more compelling justific at i o n s f o r n o t i n t r o d u c i ng backg round e vidence than B urg er’s counsel, g iven that B urg er e ndured a worse c h ildhood than Andrew s , w a s a tee n a g er a t the time of the murder, had committed only o ne murder, and was not primarily responsible for the decision to kill. Id. at 673.

Nex t, the California Supreme Court turned to Be l l v. Cone
, 5 35 U.S. 685 (2002). In re Andrews

, 52 P.3d at 67 3

. I n Bell

, counsel provided no p enalty phase evidence at all a nd waived closing arg ument. Id. ( citing B ell

, 535 U.S. at 685). The Supreme Court concluded that c o u n s e l’s strateg y was

reas o n able, because evidence of defendant’s normal childhood mig ht have been perceived neg atively by the jury

, and because c ounsel’s decisi o n t o w aive closing arg ument prevented the lead prosecutor from depicting the defendant a s

a heartless killer. Id. (citing Bell

, 535 U.S. at 699–702). The California Supreme Court noted that the counsel’s strateg y in Bell was simi l a r t o the strateg y of Andrews’s counsel: b y providing litt l e backg round information and g iving o nly aA N D R E W S V

. D A

V I S 33

brief closing a rg ument, counsel c ould reduce damag ing rebuttal evidence. Id. at 673–74.

F inally

, the California Supreme Cour t considered W illiams v. Tay l o r , 5 2 9 U.S. 362 (2000), which held that counsel rendered ineffective assistance of counsel by failing
to investig ate defendant’s n ig htmarish childhood, borderline mental retardation, and model behavior in prison. Id. at 674 (citing W illiams

, 529 U.S. at 395–96). The Cal i f ornia Supreme Court disting u ished this c ase, noting that counsel’s failure in W

i l l i a m s to investig ate was not based on strateg y , a s in Andrews’s case, but due to counsel’s erroneous understanding of the law. Id. The state court also noted that in W illiams

, there was no tactical reason to withhold evidence and there was virtually no risk of damag ing rebuttal, as in this

case. Id. at 674–75.

The Cal i fornia Supreme Court therefore concluded that then-ex isting Supreme Court precedent was consistent with its conclusion that Andrews had not established that “in lig ht of a l l t h e circumstances, the identified acts or omissions o f counsel w ere outside the wide rang e of prof e s s ionally competent assistance.” Id. at 668 (internal quot a tion marks and alterations omitted). 9

9 T h e d i s sen t arg u es th at th e Calif o rn ia Su p rem e Co u rt erred in rely in g

o n Bu rg er , Bell

, an d W

illia ms in co n clu d i n g th at A n d rew s’ s co u n sel w ere

n o t d ef icien t. Dissen t at 1 0 4

– 1 0 6 , 1 10

– 11 1

. T h is criticism is m eritless, h o w ev er, b ecau se it is b ased o n d e n o v o rev iew rath er th an th e d ef eren ce req u ired u n der A EDP A

. Fo r ex am

p l e, in co n clu din g th at “ [t]h e C alif o rn ia S u p rem e Co u rt’ s relian ce o n Bu rg er is u n reaso n ab le,” D issen t at 10 4 –1 0 5
, th e d issen t t ak es a d e n ov o ap p ro ach th at is n ot p erm i tted u n d er A EDP A
, w h ere a co u rt m

u st co n sid er w

h eth er “fa i rm in d ed j u rists co u ld d isag ree th at th e state co u rt’ s d ecisio n co n f licts w ith [th e Su

p rem e] Co u rt’ s p reced en ts,” Rich ter , 5 6 2 U.S. at 1 0 2. Sim ilarly , in stead o f d eterm in in g

w h eth er an y f

airm in d ed j u rist co u ld co n clu d e th ere is a “ p r i n c i pledA N D R E W S V

. D A

V I S 34

4

T h e California Supreme Court nex t turned to th e prejudice prong

. As ex plained in g reater detail below, the California Supreme Court determined, based on its review o f 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 ] p roba[ ble] ’ petitioner was prejudiced b y counsel’s rejection of a defense premised on evidence of pe t itioner’s upbring ing

, the Alabama prison conditions he ex perienced, and h is mental health in lig ht o f the circumstances of the crimes, g iven the ambig uous nature of some mitig a ting evidence and the substantial potential for damag ing r e buttal.” Id. at 671 (quoting S trickland

, 466 U.S. at 694).

“Having considered the record of the hearing

, the referee’s factual finding s, and petitioner’s orig inal trial,” the California Supreme Court c oncluded that Andrews “received constitutionally a dequate representation, and any inadequacy did not result in prejudice.” Id. at 659. According ly

, the California Supreme Court denie d A ndrews’s state h abeas petition. Id. at 676.

d istin ctio n ,” Mu rd

o ch v. Ca stro , 6 0 9 F.3 d 98 3
, 9 9 1 ( 9th Cir. 2 01 0 ) (en b an c), b etw een th is case an d W illia ms , th e d issen t m i srep resen t s th e Calif o rn ia Su p rem e Co u rt as h o ld in g th at “ a v irtu ally n o n ex isten t p en alty
p h ase i n v estig atio n is reaso n ab le so lo n g as it i s n o t b ased u p o n a

m isu n d ers t a n d i n g o f t

h e law ,” an d th en rej ects th is ab su rd read in g of W illia ms

. Dissen t at 1 10

– 1 1 1

. “ [I]t is n o t a p p a r e n t h o w th e [d issen t’ s]

an aly sis w o u ld h av e b een an y d if f eren t w ith o u t A EDP A .” Rich ter , 5 6 2 U.S. at 1 0 1 (f

au ltin g th e Nin th Circu it’ s d e n o v o ap p ro ach to h ab eas

rev iew ).A N D R E W S V

. D A

V I S 35

5

After the California Supreme Co u r t rejected Andrews’s claims, Andrews filed a habeas p etition in federa l d i s trict
court. H is ame n d e d petition r aised 32 claims, including multiple subclaims.

I n a leng thy r

uling on the merits of the petition, the district court denied 31 claims, b u t g ranted re lief on Andrews’s claim that his couns el were ineffective at the penalty phase of his trial for failing to investig ate and present addi t i onal mitig a ting e vidence. I n reaching this conclusion, the district court did not apply the standard mandated by the Antiterrorism and Effective D e a th Penalty Act (AEDPA). I nstead of determining whether th e C alifornia Supreme Court’s rejec t ion of this ineffective assistance of counsel claim w as “ co n trary to, or involved an unreasonable application o f” Strickland

, as required by 28 U .S.C. § 2254(d) ( 1 )

, the district c ourt r eviewed the evidence produced b y

the referee on this issue de novo and concluded that counsel’s “failure to adequately investig ate 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 (criticiz ing the Ninth Circu i t ’ s review o f a state court opinion under § 2254(d)(1) becaus e i t failed to g ive the deference due under A EDPA). T h e court g ranted Andrews’s petition on this in effective assistance of counsel claim, denied Andr e ws’s other 31 claims, and g ranted a certificate of a

ppealability ( COA) on Andrews’s c laim that California’s lethal injection p rotocol violates the Eig hth Amendment (Claim 25).

Andrews timely a

ppealed, c halleng ing the district court’s denials o f Claim 25 and several uncertified claims. T h e stateA N D R E W S V

. D A

V I S 36

cross-appealed the district court’s g rant of relief on Andrews’s ineffective assistance of c o un s e l claim. After brief i ng on h is appeal was complete, Andrews moved for permission to b rief a

n additional uncertified claim f or h abeas relief on the g round that it would violate the Ei gh th Amendment to ex ecute him after a long delay f ro m t h e date of his sentencing . W e g r anted the motion.

I I

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

A

AEDPA applies to Andrews’s f ederal habeas petition, which wa s f

i l ed after April 24, 1996. S e e Lindh v. Murphy

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

as det e rmined by the Supreme Court of the United States,” § 2254 (d ) ( 1 ), or “was based on an unreasonable determination of the f

a c t s in lig ht of the evidence presented in the State court proceeding ,” § 2254(d)(2). 1 0

10 Neith er p arty d isp u tes th at th e claim s in th i s c ase w ere “ ad j u d icated

o n th e m erits” b y th e C alif o rn ia Su p r e m e C o u rt, an d th at its d ecisio n

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

. S

ee Ch en ey v. W

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

. D A

V I S 37

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

the decisions in ex istence “as of the time the state c ourt renders its decision.” G r e ene v. Fisher

, 132 S. Ct. 3 8
, 44 (2011) (internal quotation marks a nd emphasis omitte d ) ; see also Cullen v

. Pinholster

, 563 U.S. 170, 1 8 2 (2011) (“State-court decisions a re measured ag ainst [ the Supreme] Court’s precedents as of the ti m e t h e state court renders its decision.” (internal q u otation marks omitted)). Thus, Supreme Court cases d e cided after the state court’s decision are n ot clearly established precedent u n d er § 2254(d)(1) for purposes of evaluating whether t h e state court reasonably applied Supreme Court precedent.

A Supreme Court decision is not c l e a rly established law under § 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court, W right v

. V an Patten
, 5 52 U.S. 120
, 125–26 (2008) (per curiam), or “establish[ es] a leg al principle that ‘clearly ex tends’” t o the case before the state court, Mo s e s , 555 F .3d at 7 54 (alterations omitted) (quoting V a n 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 conduc t w ere not clea r l y established law g overning p rivate actor courtroom conduct). “[ W ] hen a state court may draw a p r incipled distinction between t he 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

ex tend a rationale before it can apply to the f acts at hand, then by definition the rationale was n ot clearly established at t he time of the st ate-court decision.” W hite v. W oodall

, 1 34 S. Ct. 1 697, 1706 (2014) (internal quotation marks omitted). A principle is clearly established law g overning the case “if, a nd only if, it is so obvious that a clearly established rule applies
to a g iven set o f fa c t s that there could be no fairmindedA N D R E W S V

. D A

V I S 38

dis a greement on the q

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

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

, 529 U.S. at 405. An “unreasonable a pplication” of Supreme Cour t p r e c edent is not one that is merely “incorrect o r erroneous,” Lockyer v

. Andrade

, 538 U .S. 63, 75 ( 2 003); see also W illiams

, 529 U .S. at 4 10; rather, “[ t] he pivotal question is whether the state court’s application of the [ relevant S u p reme Court precedent] was unreasonable ,” Richter

, 562 U.S. 86 at 101 (emphasis added). “ Under § 2254 ( d), a habeas court must d etermine what a rg uments o r theories

s u p p orted” the state court’s decision, id. at 102, an d i f “‘fairminded jurists could disag ree’ on the correctness of the state court’s decision,” that d ecision is not unreasonable, id.

a t 101 (quoting Y

arborough v. Alvarado

, 541 U.S. 652, 66 4 (2004)).

T h e Supreme Court has made clear that § 2254(d) s e t s forth a “hig hly deferential standard

. . . , which demands that
stat e

- c o u rt d ecisions b e g iven the b enefit of the doubt.” Pinholster

, 563 U.S. at 181 (internal quotation marks omitted). “As amended by AEDPA, § 2254(d) stops short o f imposing a c omplete ba r o n federal-court r elitig ation o f claims already rejected in state proceeding s,” but only “prese r v e s authority to issue the writ in cases where there is

no possibility f

airminded jurists could disag ree that the state court’s decisi o n c o nflicts with this Court’s precedents” a nd “g oes n o further.” Richter

, 562 U.S. at 102. “[ E] ven a strong

case f or relief does n ot mean the state c o u r t ’s contrary conclusion was u nreasonable.” Id. I n a n u tshell, “[ i] f thisA N D R E W S V

. D A

V I S 39

s t a ndard is difficult to meet, that is b ecause it was meant to be.” Id. at 102.

B

The clearly establis hed federal law for ineffective assistance of c o u nsel claims, as determined by the Supreme Court, is Strickland v. W

a shington

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

. See Pinholster

, 563 U.S. at 189. S trickland concluded that, under the Six th Amendment, the accused has the rig ht t o t h e e ffective a ssistance of counsel at trial a nd during capital sentencing p roceeding s. 466 U.S. at 684–87. A p etitioner claiming ineffective a ssis t a n c e of counsel must prove: (1) that “counsel’s performance was deficient,” a nd (2) that “the d eficient perfo r m a nce p rejudiced the d efense.” Id. at 687.

I n determining whether a state court’s adjudication of an inef fective a ssistance of c o unsel claim w as an unreasonable applicati o n of Supreme Court p recedent, we may consider how the Supreme Court itself has a p p lied Strickland to other factual contex ts, but this is merely “ illustrative of the proper application of [ S

trickland ’s] standards.” See W iggins v

. Smith

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

, 563 U.S. a t 196 n .17; B rian R. Means, F e de r a l Habeas Manual § 3 :29 (2014). The Supreme Court has warned us not to derive “ stri c t ru l es” from its cases apply ing Strickland de

novo because “the Strickland test ‘of necessity re q u i r es a case-by -case ex amination of the e vidence.’” Pinholster

, 563 U.S. at 196 & n.17 (quoting W illiams , 529 U.S. at 391). F urther, Supreme Court cases decided on de novo r eview “offer no g u idance with respect to w hether a state court has unreasonably determined that prejudice i s l a c k i n g ” or defense counsel was deficient, and so are not directly applicable to aA N D R E W S V

. D A

V I S 40

federal court ’ s r eview under § 2254(d)(1) of a h abeas petitioner’s claim t hat a state court unreasonably a pplied Strickland

. I

d. at 202. I n deed, a state court’s application of Strickland may be objectively reasonable b a s e d on clearly established Supreme C o urt precedent at the time of its decision even if the Supreme Court’s subsequent applications of S trickland sug g est a d ifferent r esult. B y contrast, when the Supreme C o urt addresses the AEDPA question whether a state court ’ s adjudication of an ineffective assistance o f counsel claim was an unreasonable application of Strickland

, its reasoning may g u ide a federal c o u r t ’s AEDPA analy sis when the facts o f the Su p r em e Court case (including the prevailing professional norms at the time of the defendant’s trial) are analog ous to the case before the court.

Under Strickland

, deficient performance is p erformance that falls “below an objective standard of reasonableness” a nd i s t hus outside of “the r ang e of competence demanded o f

a t t o rney s in c riminal cases.” 466 U.S. at 687–88 (internal quotation marks o mitted). The objective measure o f counsel’s p erformance is “reasonableness under prevailing professional norms. ” I d. at 688. Therefore, counsel’s performance is deficient only if it falls below the standard o f then prevailing professional norms at the time of the trial. Id

. I n Pinholster

, for instance, the Supreme Cour t rejected the dissent’s arg ument that counsel’s performance was defective where the d issent provided no evidence that counsel’s chosen mitig ation strateg y was “inconsistent with the sta n d a r d o f professional competence in capital cases that prevailed in L os Ang eles in 1 9 8 4

. ” 5 63 U .S. at 196; see also Bobby v. Van Hook

, 558 U.S. 4, 8 (2009) (per curiam) ( holding that the Six th Circuit had improperly relied o n the much more d e tailed 2003 AB A Guidelines “announced 18 y ears afte r Van H ook went to trial”). Therefore, a court m ay notA N D R E W S V

. D A

V I S 41

evaluate whether counsel’s performance f e l l below prevailing professional c ondu c t a t the time of a defendant’s trial b y reference to Supreme Court opinion s t h at rely on laterdeveloped professional norms.

The Supreme Court h as also p rovided g uidance for apply ing Strickland to determine whethe r c o u n s e l ’ s “ d e f

icient performance prejudiced the defense,” S trickland

, 466 U .S. at 687, at the p enalty phase of a capital case. I llustrative Supreme Court precedent indica tes that a court g enerally proceeds throug h three steps: (1) evaluating and weig hing the totality of the available mitig a tion evidenc e , s e e W illiams

, 529 U.S. at 3 9 7–98; Pinholster

, 563 U.S. at 197–202; (2) evaluating and w eig hing the ag g ravating evidence and any rebuttal evidence that could have b een adduced by the
g overnment had the mitig ating evidence been i ntroduced, W illiams

, 529 U.S. at 397–98; Pinholster

, 563 U .S. at 197–202, and (3) reweig hing the e vidence in ag g ravatio n ag ainst the totality o f available mitig ating evidence, see Sears

v. Upton
, 561 U.S. 945, 955–56 (2010) (per curiam ); W i g g i n s , 539 U.S. at 534; W illiams

, 5 29 U.S. a t 397–98, t o determine “whether there is a reasonable probability tha t , absent the errors, the sentencer

. . . would have concluded that the balance of ag g r avating and mitig ating circumstances did
not warrant death,” Strickland

, 466 U.S. at 695. We e x plain the Supreme Court’s g u idance on each of these steps.

1

The first step in determining whether counsel’s deficient performance prejudiced the defendant at the penalty phase is evaluating “the totality of the available mitig ation evidence.” W illiams

, 529 U.S. at 397–98. The evidence to be evaluated includes both evidence that was actually pres ented atA N D R E W S V

. D A

V I S 42

sentencing and e vidence t h at a competent attorney would have introduced. See W

iggins
, 539 U.S. at 534–35. A court may assume that a competent attorney w ould have considered presenting all of the evidence adduced in post-conviction proceeding s. See W

ong v. Belmontes

, 5 58 U.S. 15, 20 (2009) (per curiam).

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

v

. Ohio

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

. Ok lahoma

, 455 U.S. 104, 1 10–12 (1982). The Supreme Court h as identified several non-ex c l u sive categ ories of mitig ation e vidence, f ocusing primarily on

e v idence that aids the jury ’s evaluation of a defend a n t ’s moral culpability

. See W iggins
, 53 9 U

. S. at 535. F o r instance, evi d e n c e o f a d e f e n d a n t ’ s d i s a d v a n tag ed backg round may lead a jury to conclude the defendant is “less

c ulpable than d efendants who have n o such e x cuse.” Penr y

v

. Lynaugh

, 492 U .S. 302, 319 (1989) (internal quotation marks omi tted), abrogated on other grounds by Atkins v

. Virginia
, 5 36 U.S. 304 (2002). Th u s , e vidence that a defendant had a childhood “filled with abuse and privation,” i ncluding being raised by parents who were eventuall y imprisoned for criminal child neg lect, could influence a jury ’s appraisal of the defendant’s moral culpability

. W illiams

, 529 U

. S at 395, 398; see also W iggins
, 539 U.S. at 535 (mitig ating evidence included evidence that the defendant suffered severe pr i v ation a nd abuse a s a child, had an alcoholic a

nd absent mother, wa s p h y sically and sex ually abused in f

ost er care, and was homeless for a brief period); Rompilla v. B eard

, 545 U.S. 374, 391–93 (2005) (mitig ating evidence included eviden c e that the defendant was raised in

a slum by severely abusive, alcoholic p arents , w ho did not provide for him and isolated him).A N D R E W S V

. D A

V I S 43

Similarly

, evidence of a d efendant’s mental or emotional difficulties may lead a jury to co n c l u d e that a defendant is less culp able than defendants without such difficulties. Penry
, 492 U. S

. a t 319. F or instance, evidence that a defendant is “borderline mentally retarded,” W illiams

, 529 U.S. at 39 6 ( internal quotation marks omitted), or has

severe PTSD from military combat, see Porter v. McCollum

, 558 U .S. 30, 35–36 & n. 4
, 4 3

– 4 4 (2009), or has severe learning and behavioral d isabilities, frontal lobe injuries, a nd brain damag e from drug and alc o h o l abuse, see S ears , 561 U.S. at 948–49, is potentially mitig a ting

.

Evidence of conduct or b e h avior demonstrating the defendant’s g ood character may also be mitig ating

. I n W illiams

, the Court g ave weig ht t o e v idence that the defendant had turned himself in, alerted police to a previously undetected c rime, ex p ressed remorse, c ooperated with police, and beh a v ed well in prison. 5 29 U.S. at 369, 396, 398. I n Belmontes

, the Court noted mitig ation evidence that the d efendant had maintained strong relationships with family members in spite of his terrible childhood, and that while in prison, he assisted others throug h a prison relig ious prog ram

a n d r ose to second in command in a f ire crew. 558 U.S. at 21.

After identify ing the evidence that the petitioner claims to be mitig ating

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

. This weig h ing process includes evaluating whether the evidence’s impact on the j u ry m i g ht be a ggr av ating rather than mitig a ting

. See Pinholster

, 563 U.S. at 2 0 1

– 0 2

. The Supreme Court has indicated that
courts c an c onsider the fact that mitig ation “may be in the ey e of the beholder,” and juries may find that s o m e evidence offered as mitig ation cuts the other way

. Burger
, 4 83 U.S. atA N D R E W S V

. D A

V I S 44

7 9 4 ( a lterations and internal quotation marks omitted). I n Burger
, the Court noted that “ [o] n one h and, a jury could
react with sy

mpathy over the trag ic childhood” of the defendant, while on the o ther hand, the same testimony could establish the defendant’s “unpredictable pro pensity for violence” that resulted in murder. Id. (in ternal quotation marks omitted). Similarly

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

, 563 U.S. a t 2 01 (noting that e vidence of the defendant’s family backg round, his substance abuse, and his mental health issues, was “by no means c learly mitig ating

, as the jury mig ht have concluded that [ the defendant] was simply bey ond rehabilitation”). The Court has also observed that evidence of th e defendant’s normal y outh mig ht, in the jury ’ s ey es, establish g reater moral culpability on the p a r t o f the defendant. See Bell , 535 U.S. at 701–02.

2

The second step in dete rm ining whether counsel’s deficient p erformance p rejudiced the defendant at the penalty
p h a s e is evaluating the weig ht o f the ag g ravating evide n c e and any rebuttal evidence that the g o vernment could have adduce d h ad the mitig ating e v idence been introduced. See W illiams

, 529 U.S. at 397– 9 8 ; P inholster

, 563 U.S. at 197–202. Ag g ravating evidence may inc l u d e evidence relating to the circumstances of the crime. T h us, in Strickland

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

. 466 U.S. at 674, 700. Similarly

, where t h e r e c ord showed that the defendant had bludg eoned a woman to d e a th w ith 15 to 20 blows of a steel dumbbell b a r t o steal g oods worth $100, the SupremeA N D R E W S V

. D A

V I S 45

Court ag reed with the state court that the ag g ravating

e v idence was “simply overwhelming ” and determined th at counsel’s failure to introduce certain mitig ating evidence was not prejudicial. Belmontes

, 558 U.S. at 1 5

– 1 6, 26–27 ( i n ternal quotation marks omitted). I n V a n Hook

, t h e Supreme Court g ave w eig ht to evidence that the murder was committed in the course o f a scheme to rob homosex ual men by luring them into secluded setting s. 558 U.S. at 12–13. I n doing so, the Court clarified that the weig ht, not the number, of the ag g ravating factors was important. Id.

Evidence about a defendan t ’s prior criminal history is also
ag g r avating and can be introduced in rebuttal, and a severe criminal history carries g reat w ei g h t

. See W oodford v

. Visciotti
, 537 U

. S. 19, 26–27 (2002) (criminal history that included “the knifing of one man, and the st a b b i n g of a preg n ant w oman as she lay in bed try ing to protect her unborn b a b y ,” combined with the circumstances of the crime, w a s “ove rw helming ” and “devastating ” ag g ravating evidence);

a ccord B ell

, 535 U.S. a t 700 & n.5 (defense couns el

r e asonably feared the prosecution w ould elicit informatio n about defendant’s criminal history

, which included robberies, in rebuttal); Burger
, 483 U.S. a t 7 93 (defense counsel reasonab l y f

eared the prosecution would introduce the defendant’s juvenile criminal history in rebuttal, when he h ad

a clean a dult record). Ev idence that a defendant h ad previousl y co m mitted another murder may be “the most powerful imag inable ag g r avating evidence.” Belmontes

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

Rebuttal evidence may also d irectly undermine the value of the mitig ation evidence. F or ex ample, the Supreme Court noted in Pinholster that it would be “ o f questionable mitig ating valu e ” fo r defense c ounsel to introduce ex pertA N D R E W S V

. D A

V I S 46

testimony diag nosing a defendant with bipolar mood disorder and seiz ure disorders, because such e v idence would invite rebutt a l b y a state ex pert, w ho c ould reject the diag nosis o f bipolar disorder and offer a d iffere n t d i a g nosis of a ntisocial personality disorder. Pinholster , 563 U.S. at 177, 201.

3

The third step in determining w hether counsel’s deficient performance prejudiced the defendant at the penalty phase is
to “reweig

h the evidence in a g g ravation a g ainst the totality o f available mitig ating evidence,” W iggins
, 539 U.S. at 534, in order to d etermine “ whether there is a reasonable probability that, absent the errors, the sentencer

. . . w ould have concluded that the b alance of ag g ravating and mitig ating circumstances did not warrant d eath,” Strickland

, 466 U.S. at 695. A “reasonable p robability ” is a level of probability that “u n dermine[ s] confidence in the outcome.” Id. at 694. Howe v e r, counsel’s deficient performance is not prejudicial merely b ecause the c o urt cannot “rule o ut” the p ossibility that the sentencer would have imposed a sentence of life in prison instead of the death penalty

. Belmontes

, 558 U.S. a t 2 0
, 2 7 (internal quotation marks omitted); see also Richter

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

, the question is n ot w hether a court can be certain counsel’s performance had no effect on the o utcome

. . . .”). Rather, “[ t] he likelihood of a d i f

f e rent result must be substantial, not just conceivable.” Richter

, 562 U.S. at 1 12 (citing Strickland

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

n d a more-probable-than-not standard is slig ht an d matters ‘only in the rarest c ase.’” Id. (quoting Strickland , 466 U.S. at 697).A N D R E W S V

. D A

V I S 47

The C o urt h as found a reasonable probability of a different outcome when scant and weak ag g ravating evidence could have been presented in rebuttal to strong ly mitig ating evidence. See W

iggins
, 539 U.S. at 534–36, 537–38 (holding that there was a reasonable probability that t h e jury would have r eached a d i f

f e rent result at sentencing had it heard powerful mitig ating evidence reg ar d i ng the defendant’s childhood backg round, when the state could hav e presented only weak rebuttal evidence). B y contrast, the Court has found no prejudice when the ag g ravating evidence is overwhelming

, even thoug h the mitig ating evidence is strong

. See Visciotti
, 537 U.S. a t 2 6–27 ( holding that there was no reasonable prob a b i lity of a different result when the mitig ating evidence, including the defendant’s “troubled f a mily b ackg round” and possible seiz ure disorder, did n o t outweig h the “overwhelming ” ag g ravating factors, including the circumstances of the crime and potential rebuttal evidence of prior offenses).

I n r e weig hing agg ravating and mitig ating evidence, the Court has also ex amined whether mitig ating evidence would be merely c umulative or would have sig nificantly altered the information provided to t h e s entencer. See Strickland

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

, the new information “would barely have altered” the picture presented at sentencing

, and t h e C o u r t found no prejudice. 466 U.S. at 699–700. Similarly

, in Belmontes

, the Court con c l u ded that merely cumulative evidence reg arding

a petitioner’s difficult childh o od, and ex pert testimony

r e garding a petitioner’s mental state “ seeking to ex p lain his behavior, or putting it in s o m e f a v orable contex t” would be unlikely to outweig h the facts of a brutal murder, and would be even less likely t o o u tweig h evidence that the defendant had c ommitted a prior murder. 5 5 8 U.S. at 22– 2 4
, 2 7 –28.A N D R E W S V

. D A

V I S 48

According ly

, the Court concluded that any failure o f counsel
to present additional mitig a ting evidence was not prejudicial. Id. at 27.

These Supreme Court opinions illustrate t hat under Strickland ’s prejudice prong , cumulative mitig a ting evidence does not support a conclusion tha t t h e r e would be a reasonable probability of a different outcome. New

m i tig ating evidence can support such a conclusion only if i t is sufficiently stron g, and the known or additional
ag g r avating evidence is not overwhelming

.

C

I n lig ht of this g uidance, we now evaluate the California Supreme Court’s rejection of A ndrews’s claim tha t h e was prejudiced by his counsel’s failure to investig ate and present ad d i t ional mitig ating e vidence at the penalty phase of his trial. See S

trickland

, 466 U.S. at 697 (“[ A] court need not determine whether counsel ’s performance was deficient before ex amining the prejudice suffered by the defendant a s

a result of the alleg ed deficiencies.”). W e must determine whether this decision w as “contrary t o , or involved an

unrea s onable application o f,” Strickland or other Supreme Court precedent in e x i stence a t the time of its opinion. § 2254(d)(1); see Pinholster , 563 U.S. at 182–83.

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

ollowed Strickland in asking whether, even if counsel were deficient, An d rews’s defense was not prej u d i c ed b y any such deficiency because a different result

was not reasonably p r obable. See In re Andrews

, 52 P.3d at 671 (quoting Strickland

, 466 U.S. at 694). The CaliforniaA N D R E W S V

. D A

V I S 49

Supreme Court then reasonably carried o u t the three steps indicated by Supreme Court o pinions for evaluating prejudice under Strickland

at the penalty

phase. 1 1

1

The c ourt first considered the totality of th e m i t i g ating evidence presented at trial, as well as what mitig ating evidence could have been p resented by a competent attorney , based on the six -y e ar r eview a nd report by the referee

. See W illiams

, 529 U.S. at 397–98. The court reviewed all of the mitig a t ing evidence that Andrews presented, including Andrews’s family backg round, In re A n drews

, 52 P.3d at 660, 670, incarceration in Mt. Meig s and in Alabama prisons, 1 2 id.

11 A n drew s arg u es th at t

h e Calif o rn ia Su p rem e Co u rt f

ailed to ap p l y th e

co rrect leg al stan d ard f

o r d eterm in i n g w

h eth er co u n sel p ro v id ed d ef icien t p erf o rm an ce at th e p en alty

p h ase. Sp ecif

ically , A n d rew s arg u es t

h at th e Calif o rn ia Su p rem e Co u rt f

ailed to f o llo w Ten n a rd v. Dretke an d S mith v. Texa s , w h i c h h o ld th at ev id en ce can b e m itig atin g ev en if it is n o t

“ u n iq u ely sev ere” o r d o es n o t h av e a “ n ex u s” to t h e crim e. 5 4 2 U .S. 2 7 4
, 2 8 7 (2 0 0 4); 5 4 3 U.S. 3 7
, 4 4

– 4 5 (2 0 0 4 ). T h is arg u m en t m isco n s tru es th e Calif o rn ia S u p rem e Co u rt o p in io n

. In d ete r m i n i n g th at co u n sel co u ld h av e m ad e a strateg ic d ecisio n n o t to p resen t tan g en tial ev id en ce th at

co u ld cu t b o th w ay s , th e co u rt ex p ressly co n sid ered th e p u rp o rted ly

m itig atin g ev i d en ce. On its f ace, su ch an a p p ro ach i s n o t eq u iv alen t to h o ld in g th at certain ev id en ce is p er s e n o t m itig ati n g an d d eclin in g to

co n si d e r i t

. C

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

. . . m ay d e t erm in e th e w eig h t to b e g iv en relev an t m itig atin g ev id en ce

. B u t [co u rts] m ay n o t g iv e i t n o w eig h t b y ex clu d in g s u ch ev i d en ce f ro m th eir

co n sid eratio n .”).

12 A n d rew s’ s claim th at th e state co u rt f ailed to co n sid er h is ex p erien ces at Mt. Meig s, i s n o t su

p p o rted b y th e reco rd

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

, n otin g th at “ [a]t Mt. Meig s, [ An d rew s]

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

b j ected t o beatin g s, b ru tality

, i n ad eq u ate co n d itio n s an dA N D R E W S V

. D A

V I S 50

at 660–61, 670–71, and mental health evidence, id. at 661–62, 670, observing that the similar ty p e s of mitig ating evidence have been considered in Supreme Court precedent, id. at 672–75; see Penry
, 4 92 U.S. at 319; W illia m s , 529 U.S. at 395–98.

The California Supreme Court then evaluated the streng th of t h is mitig ating evidence by considering

, among other
t h i ng s, w hether it mig h t be viewed by a jury as a g g ravating. See Burger
, 4 83 U .S. at 793; Pinholster

, 563 U.S. at 201–02. The c ourt reasonably concluded th a t m u ch of the evidence identified as mitig ating “was not conclusive l y and unambig uously mitig ati n g,” and it e valuated the possibility that the evidence could be rebutted o r use d t o Andrews’s disadvantag e , or that cross ex amination mig ht “deflate the mitig ating im p a c t ” o f the evidence. In re Andrews

, 52 P.3d
at 670 & n.9. The court reasonably o b served that a jury could have d etermined that Andrews’s family backg round did n ot redu c e his moral culpability

, g iven that Andrews was raised in a n on-abusive, stable f

amily situation. Id. at 670; cf. B ell

, 535 U.S

. a t 701–02 (sug g esting that evidence o f a normal
y outh mig ht “cut th e o t h e r way ”). The court reasonably

c oncluded that “[ Andrews] did not suffer a h o m e enviro n m e nt that would place his crimes in any understandable contex t or ex p lain his resorting to crime every

sex u al p red ato rs,” th at “ [h ]is p assiv en ess an d sm all p h y siq u e cau s ed h im
to b e a targ et o f o ld er, to u g h er bo y s, f ro m w h o m n o p ro tect i o n or sep aratio n w as p ro v id e d

, ” an d th at “ Mt. Meig s f ailed to pro v id e an y

m ean in g f u l reh ab ilitativ e o r ed u catio n al o p p o rtu n ities.” In r e An d re w s , 5 2 P.3 d at 66 0

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

n o ted th at ex pert testim o n y w o u l d h a ve ad d ressed h is d ru g u se at Mt. Meig s. Id

. at 6 6 1

. Mo reo v er, t h e state co u rt’ s u se o f th e term “ p r i so n

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

w h ere th e term

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

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

. D A

V I S 51

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

, 52 P.3d at 670.

I n addition, the California Supreme Court reasonably determined that the evidence reg arding the prison conditions

was double-edg e d. On the o ne hand, the pris o n conditions

e vidence left it in “no doubt [ that Andrews] endu r e d horrifically demeaning and deg rading circumstances.” Id

. On the other hand, the evidence would be presented p rimarily throug h the testimony o f Andrews’s former fellow i n mates, who had s e r i o us criminal records that could “draw[ ] an unfavorable comparison” with Andrews. Id. a t 671. “Many had themselves eng ag ed in bru t a l i t y while in prison a nd escaped w ith some frequency ,” also similar to Andrews. Id

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

, the evidence could well h ave reinforced an impression of him as a person wh o h a d become desensitiz ed and inured to violence a nd disrespect for the law.” 1 3 I d. ; cf. Pinholster

, 563 U.S. a t 201–02.

The dissent claims that the California Supreme Court was unreasonable in concluding that the Mt. Meig s evidence could have constituted a d ouble-edg ed sword because “[ t] he jury a lready knew from A ndrews’s heinou s crimes o f convict i on a

nd from the stipulated p rior convictions that Andrews was antisocial and ‘had become desensitiz ed a nd inured to violence and d isrespect fo r t h e law.’” Dissent at

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

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

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

. Cf. Pin h o lster , 5 6 3 U.S. at 2 0 1

– 0 2

.A N D R E W S V

. D A

V I S 52

119

– 120. However, the dissent’s conclusion is f actually incorrect. Be ca u s e the stipulation presented to the jury did
not describe the facts of each of the off e n ses underly

ing Andrews’s prior convictions, the jury d i d n o t hear that Andrews held a woman hostag e with a g un to her head when robbing a laundry b usiness or that the tax i 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. According ly

, the California Supreme Court did n ot err in concluding that evidence of prison conditions was double-edg ed.

2

Consistent with Supreme Court p recedent, the California Supreme Court not only assessed the weig ht of the mitig ating evidence a

nd its likely impact on a jury but also evaluated the weig ht of t h e ag g ravating evidence at trial, as well as any additional r ebuttal evidence that c o uld have been introduced. See W illiams

, 529 U.S. at 397–98; Belmontes

, 558 U.S. at 20, 2 4–28. Turning to the circumstances of Andrews’s crimes, the California Supreme Court stated that the murders showed

a “callous disreg ard for human life.” In re Andrews

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

trickland

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

, 558 U.S. a t 15, 26–27. Andrews d id n o t impulsively react to

a situation that g ot o ut of h a n d; rather, he interacted with the victims in a c alm a

nd normal manner b efore torturing a nd k i l l ing them. In re A n drews

, 52 P.3d a t 671. He a l s o d i d

more than simply kill the victims. He raped and s o d o miz ed B randon before murdering her, and he also murdered W h eeler and Chism with “considerable violence and e vident
sang f roid.” Id

. The state court also consider ed that, a s rebuttal evidence, the p r o s ecution could have presented the d etails of A ndrews’s criminal history

, cf. Bell

, 535 U.S. at 700 & n.5; Burger
, 4 83 U .S. at 793, from which the juryA N D R E W S V

. D A

V I S 53

mig ht conclude Andrews was “ag g ressive and desensitiz ed to violence,” In re Andrews

, 52 P.3d at 669. The jury mig h t also have conc l u ded that this “pattern of criminality ” showed Andrews “ would pose a dang er to others if he were sentenced
to life impriso n m e n t

. ” 1 4 Id

. Also, the references to Andrews’s multiple escapes fr o m prison mig h t have been “inflammatory .” Id

.

F inally

, the California Supreme Cou r t reasonably concluded that the prosecution could have presented its o wn mental he a l t h ex perts in rebuttal, and could have used the mental health e vidence to Andrews’s d isadvantag e o n c r o ss

ex a mination. Id. at 670. The court no t e d the referee’s finding s that p rose c u t i o n ex perts could have testified that Andrews had normal intellig e nce and did not s u f f e r brain

14 A n d rew s arg u es th at th e state co u rt’ s co n clu sio n th at th e ev id en ce g av e rise t o th e in f

eren ce o f fu t ur e d an g ero u s n ess w as an u n reaso n ab le d eterm in atio n o f th e f

acts. He arg u es th at t

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

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

su p p o r t su ch an in f

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

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

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

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

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

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

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

ry co u ld h av e f

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

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

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

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

.A N D R E W S V

. D A

V I S 54

damag e, but had antisocial personality t r a its. 1 5 Id. ; c f. Pinholster

, 563 U. S

. at 173, 201. N or was the state court

unreasona

b l e in concluding that A ndrews’s e x perts’
t e stimony could backfire. F or instance, the c ourt noted tha t the “compelling ” testimony from one o f Andre ws’s ex pert psy chiatric witnesses, opining that Andrews’s prison

ex p erience caused him to react with r ag e to perceived insults, could cause a j ury to conclude that A ndrews “ was u nable to control lethal impulses o n the slig htest provocation.” I n re Andrews

, 52 P.3d at 670; cf. Pinholster

, 563 U.S. a t 201–02. F inally

, the presentation of the mental health evidence would have g iven the prosecutor additional opportu n i ties 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 mitig ating and ag g ravating evidence, the C a l ifornia Supreme Court re-weig hed it and assessed whether it w as reasonably p robable that, in the absence of any deficient performance by counsel, the sentencer “would have concluded that the balance of a g g ravating and mitig ating circumstances did not warrant death.” S trickland

, 4 66 U.S.
at 695; see In re Andrews

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

15 A n d rew s a r g u es th at th e state co u rt u n reaso n ab ly ap p l ied Ed

d in g s , 4 5 5 U .S. at 1 1 4

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

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

m erely h eld t

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

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

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

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

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

– 7 1

.A N D R E W S V

. D A

V I S 55

a defense premised on evidence of [Andr e w s ] ’s upbring ing

, the Alabama prison conditions he e xp erienced, and his mental health i n l ig h t of the circumstances of the crimes, g iven the ambig uous nature o f some mitig ating evidence and the substantial potential for damag ing rebuttal.” In re Andrews

, 52 P.3d at 671. I n deed, the California Supreme Court concluded t h a t “[ w] ith respect to the question of prejudice” the record “contains no indication th e j u r y was inclined to sentence petitioner to life imprisonment a nd mig ht have been persuaded b y additional or alternate mitig ation evidence.” Id.
at 675–76. According ly

, the California Supreme Co u rt reasonably c oncluded that even if counsel were def i cient, Andrews’s defense was not p rejudiced by any such deficiency

. Id. B eca u se this is not a n objectively unreasonable application of Stricklan d

, the district court erred in g ranting Andrews relief on this issue.

Rely ing on the S u p reme Court’s decisions in W illiams and P orte r , Andrews arg ues that the California Supreme Court’s decision on the issue of prejudice was an unreasonable application of S trickland. 1 6 W e disag ree.

I n W illiams

, the police found a man dead in his residence. 5 2 9 U.S. at 367. There was no indication of a strug g l e s o local officials concluded that the cause of death was alcohol poisoning a

nd closed the case. Id. The d e f e n d ant, who h ad been arrested for a

n u nrelated offense, wrote a letter to the police c onfessing he had k i lled a man by striking him in the chest and back afte r a n arg ument, thus “alerting police to a

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

o cu s es p rim arily o n W

illia ms an d Po rter

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

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

, w e d o

n o t ad d ress th em

h ere.A N D R E W S V

. D A

V I S 56

cri m e they o therwise would never have d iscovered,

ex p ressing remorse for his actions, and cooperating with the police after that.” Id. at 367–68 & n.1, 398. 1 7

The defendant’s counsel beg an to prepare for the penalty phase only a week before trial, and even then counsel did not

r e view defendant’s juvenile and social services r e cord s because coun s el incorrectly believed that state law barred

access to these records. Id. at 373, 395. Counsel thus failed
to d iscover documents that “g raphically describe[ d] [ defendant’s] nig ht m a rish childhood.” Id. at 395. The evidence showed that defendant’s “parents had been impriso n e d f

o r the criminal neg lect of [ defendant] and his sibling s, that [ def

e n d a nt] h ad been severely and repeatedly beaten by his father, that he had been c o m m itted to the custody of the social services bureau for two y ears during his parents’ incarceration (including one stint in a n abusive foster home), and then, after his p arents were r eleased from prison, had b een returne d to his p arents’ custody .” Id. The records

17 T h e d issen t relies on Ju stice Reh n q u ist’ s co n c u r r in g an d d issen tin g

o p in io n in W

i llia ms , w

h ich d escr i b e d ad d itio n al ag g rav atin g f acto rs b ey o n d th e crim e itself

. S ee Dissen t at 1 1 4 –1 1 5 (stat i n g t h a t th e j u ry h eard ev id en ce t

h at “ W illiam s s av ag ely b eat an eld erly w om an , s to le tw o cars, set f ire to a h o m e, stab b ed a m an du rin g a ro b b ery , set f ire to th e city j a i l

, a n d co n f

essed to h av in g stro n g u rg es t o ch o k e o th er in m ates an d to b reak a f

ello w priso n er’ s j aw ”) ( citin g W illia ms , 5 2 9 U.S. at 4 1 8 (Reh n q u ist, C.J
., co n cu rrin g i n part an d dissen tin g i n p art)). B u t u n der A EDP A
, n eith er co n cu rrin g n o r d isse n t in g o p in io n s , n o r circu it co u rt d ecisio n s (p articu larly o n e rev ersed b y th e Su p rem e Co u rt, see Dissen t at 1 1 4

– 1 1 5 ), co n stitu

te clearly e s t a b lish ed Su

p rem e Co u rt p reced en t. S ee Willia ms , 5 2 9 U.S. at 4 1 2 (statin g th at o n ly th e Su p rem e Co u r t ’s

“ h o ld in g s, as o p p o sed to th e d icta” co n stitu te clearly estab lish ed Fed eral law ); Gleb e v. Fro st , 1 3 5 S. Ct. 4 2 9
, 4 31 (2 0 1 4) (“ A s w e h av e rep eated ly

e m p h a s ized

, h o w ev er, circu it p reced en t d oes n o t co n stitu te ‘ clearly estab lish ed Fed eral law

, as d eterm in ed b y th e Su p rem e Co u rt.’ ” (q u o tin g 2 8 U.S.C. § 2 2 5 4 (d )(1 ))).A N D R E W S V

. D A

V I S 57

revealed that defendant’s home had urin e and f eces on the floor; defendant’s parents “were so intox icated, they could
not find any c lothes for the children, nor w ere they able to put the clothes on them”; “[ t] he children were all dirty and none of them had on under-pants”; a n d in one inst a n ce “ [ t] he children had to be put in W inslow Hospital, as four o f them, by that time, were definitely under the influence of whiskey

. ” Id. at 395 n.19.

Nor did counsel intro d u c e o ther mitig ating evidence readily apparent f

r o m t h e record, such as the fact that defendan t w a s “borderline mentally retarded.” Id. a t 396. Counsel also fa i l e d to “seek p rison records recording [ defendant’s] commendations for helping to crack a p rison drug ring and for returning a gu a rd’s missing wallet, or the
test i m o n y of prison officials who described [ defendant] a s among the inmates ‘least likely to act in a violent, dang erous

or p r o v o c a tive way .’” Id. I n addition, counsel failed to return the phone call of a character witness who h a d offered
to t es t ify “that he had visited [defendant] frequently when [ defendant] was incarcerated as part of a prison ministry
prog r am, that [ defendant] ‘seemed to thrive in a more reg imented and structured environment,’ and that [ defendant]

was proud of the carpentry deg ree h e earned while in prison.” Id.

F inally

, at sentencing ,“[ t] he weig ht of d efense counsel’s closing

. . . was devoted to ex plaining that it was difficult to find a reason why t h e jury should spare [ defendant’s] life.” Id. at 369; see also id. at 369 n.2 (quoting defense c ounsel a s telling the jury “‘I will admit too that it is very difficult to ask
y ou to show mercy to a man w ho may be has not shown much
mercy himself. I dou b t v er y seriously that he thoug ht much about m e r c y when he was in [the victim’s] bedroom thatA N D R E W S V

. D A

V I S 58

nig ht with him.

. . . A dmittedly it is very d i f f i c u l t t o g et us and ask that y ou g ive this man mercy when he has shown so little of it himself.’”). The Supreme Court held that the state court applied the w rong leg al standard in d etermining prejudice because i t required “a separate inquiry into fundamental fairness,” id. at 393, even whe n t h e p etitioner showed there was a re a s o n able probability of a different outcome, id. at 393–95. T h e refore, the Court a pplied Strickland d e novo to these facts, id. at 397–98; see also Pinholster , 563 U.S. at 202.

The st at e c ourt here d iscussed W illiams at leng th a

nd reasonably disting uished it as having “ s u b stantially dissimilar f acts.” In re Andrews

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

, f o r instance, the defense c ounsel c o uld have introduced strong character e vidence reg arding his ex em p l a r y c o nduct in prison, 529 U.S. a t 398, but no comparable evidence of g ood character was present in Andrews’s case. 1 8 T he defendant’s “nig htmarish childhood” in W illiams

, 529 U.S. at 395, was far worse than Andrews’s relativ ely stable family backg round, s e e In re Andrews

, 52 P.3d at 674. The def e ndant in W

illiams was “borderline mentally retarded,” 529 U.S. a t 3 9 6
, 3 9 8 (internal quotation marks omitted), while the prosecution could have presented evidence that Andrews was n ot mentally impaired, but rather had a ntisocial personality traits, In re Andrews

, 5 2 P

. 3 d at 670. Althoug h the pros e c utor in W

illiams could have introduced rebuttal evidence that defendant had b een “thrice committed to the juvenile sy stem—for aiding and abetting larceny when he

was 1 1 y ears old, for pulling a false fire alarm when he was

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

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

th e ev id en ce in W

illia ms

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

.A N D R E W S V

. D A

V I S 59

12, and for breaking and e n tering when he was 15,” 529 U.S.
at 396, such evidence has much less w eig ht compared to Andrews’s robbery -murder, hostag e taking

, and h istory o f
escapes from prison, In re Andrews

, 52 P.3d at 675. F inally

, the circumstances of the crime in W illiams wer e less b rutal than Andrews’s r a p e and triple murder. Id. 1 9 B e cause the facts of W

illi a m s are dissimilar, the Supreme Court’s determination in W

illiams that counsel’s ineffective assistance w a s p rejudicial does not make the state court’s contrary c onclusion here unreasonable. See Richter

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

Andrews also arg ues that the California Supreme Court’s decision was unreasonable in lig ht o f Porter

. Althoug h Porter was decided y ears after th e C alifornia Supreme Court’s opinion in this c a s e , w e g ive its prejudice analy sis

car e ful consideration, because P orter considered prejudice

u n d er AEDPA, and therefore p rovides direction f o r determining what constitutes an unreasonable application of the pr e judice prong of Strickland under AEDPA. Nevertheless, we conclude that Porter d oes not help Andrews here.

1 9 T h e d issen t f

ails to en g ag e w ith t

h ese d istin ctio n s an d th e ev i d en ce at issu e. In s tead

, th e d issen t co n du cts a de n o v o rev iew

, an d co n clu d es th at th e ag g rav atin g ev id en ce ad m i tted at t rial an d th e ev id en ce th at co u ld h av e b e en o f f ered in reb u ttal ag ain st A n d rew s w as “ n o g reater th an t h e ag g rav atin g ev i d en ce in W illia m s

. ” Dissen t at 1 1 5

. T h e d issen t

m isu n d erstan d s o u r ro l e. W e m u st d eterm in e w

h eth er th e Ca lif

o rn ia Su p rem e Co u rt’ s ap p lic a tio n o f W illia ms w as o b

j ectiv ely u n

reaso n ab le

u n d er 2 8 U.S.C. § 2 25 4 (d )(1 ), n o t w h eth er w e w o u ld h av e reach ed a d if f eren t r e s u l t u n d er d e n o v o rev iew

. “ In ord er f o r a state co u rt’ s d ecisio n to b e an u n reaso n ab le ap p licatio n o f [th e Su p rem e] Co u

rt’ s case law

, th e ru lin g m

u st b e o b j ectiv ely u n reaso n ab le, n o t m erely w ro n g ; ev en clear erro r w ill n o t su f

f i ce.” Virg in ia v. LeBla n c , No

. 1 6

- 11 7 7
, 2 0 1 7 W L 2 5 0 7 3 7 5 , at * 3 (U.S. J u n e 1 2 , 2 01 7 ) (in tern al q u o tatio n m ark s o m itted ).A N D R E W S V

. D A

V I S 60

I n Porter
, the defendant w as c onvicted o f two counts o f first-deg ree murder for shooting his former g irlfriend and her boy friend. 558 U.S. at 31. The e vidence sug g ested that “this

was a crime of p a s sion” and “that [defendant] was drinking heavily just ho u r s before the murders.” I d. at 38. The defen d a nt was convicted of both murders, and the jury recommended the death sentence. I d

. a t 3 2

. The state supreme court affirmed, but struck the “heinous, atrocious, o r cruel ag g ravating factor,” because the evidence was “consistent with the hy

pothesis that [ defendant’s] was a crime of passion, not a crime that was meant to be deliberately a nd

ex traordinarily

painful.” Id. at 33.

The defendant r epresented himself during the g uilt phase, id. at 32, and h i s c o u n s el “had only one short meeting with [ defendant] reg arding th e p e n a lty phase,” id. at 39. As the Supreme Court ex plained, “ counsel did not even take the first step of interviewing witnesses or requesting records.” I d. A s

a result, t h e 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 h im two Purple Hearts, t h e C o mbat I nfantry man B adg e , a

nd other decorations, id. at 35; “(2) his strug g les to reg ain normality upon his retur n f r o m war,” id.
at 41, which led to ex cessive drinking

, id. a t 3 6; “(3) his childhood history of phy sical abuse,” id. at 41, during which he was subjected to r outine beating s and reg ularly w atched his father beating his m o t h e r , id. at 33; and “(4) his brain abnormality

, difficulty reading a nd writing

, and limited schooling ,” id . at 41.

The Supreme Court determined that the st a t e court unreasonably a

pplied Strickland in holding that the defendant

was not p rejudi c ed by c o unsel’s failure to introduce thisA N D R E W S V

. D A

V I S 61

mit i ga t i ng evidence. The Court held that the mitig ating eviden c e w as strong , w hile the w eig ht of the evidence in
ag g r avation was less substantial. Id. The Court a lso held that the state court was unreasonable in discounti n g the defendant’s childhood abuse and military service. Id

. a t 43. I t was “unreasonable to conclude that [ defendant’s] military service w ould be r edu c e d to inconsequential proportions, simply b e c a u se the jury w ould also have learned that [ defendant] went A W OL on more than one o ccasion

. ” Id. (internal citation and quotatio n marks omitted). The Court reasoned that “[ o] ur N ation has a long tradition of according leniency to veterans in r ecog n ition of their service, especially for those who foug ht on the front lines a s [ defendant] did,” and that the “relevance of [defendant’s] ex tensive c o m b at

ex p erience is not only that he se rved honorably under

ex treme hardship and g

ruesome conditions, but also that the jury mig ht find mit i ga t i n g the intense stress and mental a nd emotional toll that combat took on [ defendant] .” Id. 43–44. “To conclude otherwise,” the Court opined, “reflects a failure
to e n g ag e with what [ defendant] actually went throug h in Korea.” Id. at 44. F urther, the Court held that the state court

was “unreasonable to discount to irrelevance the evidence o f [ defendant’s] abusive childhood, especially when that kind o f history may have particular salience f or a jury evalua t i n g [ defendant’s] behavior in h is relationship wi t h [ h is f ormer g irlfriend] .” I

d. at 43.

The Court’s reasonin g i n Porter does not lead to the conclusion t h at the California Supreme Court unreasonably applied the p rejudice prong of Strickland here. Unlike the
state court in Porter
, the California S u p r e m e Court

cons i d er e d all mitig ation evidence in the record and did not fail to consid er o r “discount to irrelevance” sig nificant evidence. See id

. The most important mitig ation evidence inA N D R E W S V

. D A

V I S 62

P o r t e r , that the d efendant served in “the most critical—an d horrific—battles o f t h e Korean W ar,” see id. at 41, is far
stron g er than the mitig ation e vidence at issue h ere. Moreover, An d r ews did not have a n abusive home life, a

nd there is no evidence that his murders in this case were crimes of passion for which childhood abuse w ould have “particular salience f or a jury ” in evaluating his behavior. See id. at 43.

F urther, the ag g ravating circums t a n c es in P orter were d i f ferent and less weig hty than those in this case. I n d e ed

, Porter noted that the state court had stricken th e “ h e i nous, atrocious, or cruel” ag g r avating factor b eca u s e the evidence in the record was “consistent w ith the hy p othesis that Porter’s

was a crime of passion, not a crime that w a s meant to be deliberately and e x traordinarily painful,” id. at 33, while here the California Supreme Court found that Andrews’ s b rutal

r ape a nd strang ulation o f B randon, a n d the shooti n g a n d strang ling dea t hs o f the other v ictims, evidenced a “callous disreg ard for human life” a nd were accomplished with “considerable violence and evident s a n g f roid,” In re Andrews

, 52 P.3d at 671. 2 0 B ecause Porter is f actually d i s t i n c t from this case, it has little b earing on the questi o n whether the state c ourt unreasonably a pplied the prejud ice
prong of Strickland. 2 1

20 T h e dissen t claim s t

h at th e pro secu to r presen ted “ a stro n g case in
ag g rav atio n ” in Po rter , an d th eref ore th e co n clu sio n in Po rter m u st ap p ly in th is case. Dissen t at 1 1 8. B u t u n lik e th e case b ef

o re u s, Po rter h eld
t h at t h e sen ten cin g j u d g e h ad m isj u dg ed th e w eig h t o f th e ag g ra v a t i ng

ev id en ce, an d “ th e w eig h t o f ev id en ce i n ag g rav atio n is n o t as su b stan tial

as th e sen ten cin g j u d g e th ou g h t.” Po rter , 5 5 8 U .S. at 4 1

. T h e ag g rav atin g

ev id en ce in th is case can n o t sim i larly b e m in im ized

.

21 A n drew s also u rg es u s to ap p ly o u r decisio n in Do e v. Ayers
, 7 8 2 F.3 d 4 2 5 (9 th Cir. 2 01 5 ), w h ere w e c o n c l u d ed th at th e d ef en d an t w as p rej u d iced by co u n sel’ s d ef i cien t p erf o rm an ce in f

ailin g t o in v estig ate an dA N D R E W S V

. D A

V I S 63

W oodford v. Visciotti
, a Supreme Court case that provides direction f

or determining under AEDPA what constitutes an unreasonable a

pplication o f Strickland

, is more closely on point. 2 2 I n Visciotti
, the Suprem e C o u r t considered a state court’s r ejection of a defendant’s Strickland claim. 537 U.S.
at 2 6. The st a t e c o u rt had weig hed the mitig ating evidence, including the defenda n t ’ s brain damag e, d ifficult family backg round, and possible seiz ure disorde r, ag ainst the
ag g r avating f

actors, including the circumstances of the crime (the cold- b l o o ded killing o f two victims during a robbery ) and his criminal history of knifi n g a m a n and stabbing a preg n ant woman in bed “try ing to protect her u nborn baby

, ” and c oncluded that the d ef e n dant had suffered no prejudice. See id. at 25–26. After the defendant filed a habeas petition, the district court g r anted relief, and we affirmed. W e reasoned that c o u n s e l ’ s deficient performance was prejudicial, because the “ ag g r avating factors wer e n o t

ov er whelming .” Id. at 21–22, 25 (quoting Visciotti v

.

p resen t m itig atin g ev id en ce, in clu d in g ev id en ce of h is rap e in p riso n

. Do e is n o t p ertin en t t o o u r an aly sis h ere becau se it is a p re- A EDP A case th at d o es n o t ex am in e w

h eth er t h e state co u rt’ s co n clu sio n w as u n reaso n ab le. S ee id

. at 4 2 8
, 4 4 6 n .3 1

. No r is D o e clearly estab lish ed law as determ in ed b y th e Su p rem e Co u rt. S

ee 2 8 U.S.C. § 2 2 54 (d )(1 ).

2 2 A l th o u g h Viscio tti w as d ecid ed af ter th e Calif

o rn ia Su p rem e Co u rt’ s d ecisio n in th is case, w e g iv e it caref u l co n sid eratio n b ecau se it ad d resses th e A EDP A qu estio n w

h eth er a s tate co u rt’ s ad

j u d icatio n o f an in ef

f ectiv e assistan ce o f co u n sel claim w as an u n reaso n ab le ap p licatio n o f S t rickla n d

. S ee s u p ra at 3 9

– 4 0 ; see a lso Dissen t at 1 1 6

– 1 1 7 & n .9 (ack n o w l ed g in g th at Su p rem e Co u rt o pin i o n s a n a l y zin g A EDP A are relev an t to a circu i t

co u rt’ s A EDP A an aly sis, reg ard l ess w h eth er th o se o p in io n s w ere d ecid ed b ef o re o r af ter th e last reaso n ed o pin io n o f th e s t a t e c o ur t )

. T h e d issen t h ig h lig h ts th at Viscio tti w as “ d ecid ed a fter th e Calif

o rn ia Su p rem e Co u rt’ s d ecisio n in th is case,” D issen t at 1 1 8
, b u t g iv en th e d i ssen t’ s

a c k n o w led g m en t th at ou r co n s id eratio n o f a Su p rem e Co u rt o p i n i o n

an aly zin g A EDP A

is p ro per, th e m ean in g o f th is em p h asis is u

n clear.A N D R E W S V

. D A

V I S 64

W oodford

, 288 F .3d 1097, 1 118 ( 9th C i r. 2002)). The Supreme Court revers e d

. I t ex plained that “ under § 2254(d)(1), it is n ot enoug h to c onvince a federal h abeas
court that, in its independent judg ment, the state-court decision applied Strickland i n c o rrectly .” Id. at 27 (internal quotation marks om i t t e d ). Rather, “[ t] he f ederal h abeas scheme leaves primary responsibility with the state courts for these judg me n ts, a

nd authoriz e s federal-court intervention only when a state-court decision is objectively unreasonable. I t is not that here.” Id. I n sum, the Court held that “[ w] hether

or not we would reach the same conclusion as the California Supreme Court, we think a t the very l e a st that the state court’s contrary assessment was not ‘unreasonable.’ ” Id. (quoting B ell

, 535 U.S. at 701) ( internal quotation m a r k s omitted).

Here, as in Visciotti
, the state court reweig hed Andrews’s mitig at i n g e vidence a g ainst the brutal circumstances o f the crime and Andrews’s prior criminal history , and determined there w as n o reasonable probability that the sentencer would de t e rmine that “the balance of ag g ravating and mitig ating factors did not warrant imposition of the death penalty .” Id

. at 2 2 (internal quotation marks omitted). This d e c i sion was not o bjectively unreasonable, and therefore we a r e bound to conclude that “[ w] hether or not w e wo u ld reach the same conclus ion,” we cannot say the California Supreme Court’s conclusi on was an unreasonable application o f Strickland

. See id. at 27. 2 3

23 T h e f act th at o u r d ecisio n in th is case w as o rig in ally u n an im o u s, see An d rews v. Da vis , 7 9 8 F.3 d 7 5 9 (9 th Cir. 2 0 1 5 ), an d th ere h av e b een n o relev an t f actu al o r leg al d ev elo pm en ts sin ce t h at tim e, u n d ersco r e s ou r

co n clu sio n th at f

airm i n d e d j u rists co u ld h o ld th at th e state co u rt’ s d eterm in atio n

w as n o t o b

j ectiv ely u n reaso n ab le.A N D R E W S V

. D A

V I S 65

The d i ssent purports to recog niz e that “our deference to state court decisions is at its z enith on federal habeas review,” Dissent at 9 6, but fails to a p p ly this standard. He re , t h e California S u p r e m e Court determined that there w as not a reasonable probability that the outcome woul d have been different h ad the evidence adduced at the r e f e rence h earing (along with the rebuttal evidence) been p resented to the jury

. In re Andrews

, 5 2 P.3d a t 6 7 1, 675–76. The d issent does not—and ca nnot—ex plain why the court’s conclusion is an objectively unreasonable application of then-ex isting Supreme Court precedent. The d issent points to W i l l i a ms , Dissent at 114–116, b ut m a k e s n o effort to ex plain the flaw in the California Supreme Court’s “principled distinction” o f this case. Murdoch

, 609 F .3d at 991; see supra a t 5 8–59. Nor d o e s the dissent meaning f ully eng ag e with the facts o f Porter or dispute the numerous distinctions addressed above. See supra at 59–62; Dissent at 116–118. 2 4

The dissent fails to address the pertinent question, which

“ ‘ i s n ot whether a federal court believes the state court’s d e termination’ under the Strickland standard ‘was incorre ct but whether that determination was u nreasonable—a subs tantially hig her threshold.’” Knowles v. M irzayance
, 556 U.S. 111, 123 (2009) ( quo t i n g S chriro v

. Landrigan

,

24 T h e d issen t’ s relian ce o n W ig gin s an d Ro mp illa to su p p ort its S trickla n d an aly sis, see D issen t at 1 1 2

– 11 3
, 1 1 7
, i s m i stak en , b ecau s e th ese cases w ere d ecid ed af ter th e Calif

o rn ia Su p rem e Co u rt ru led

. W h i le

w e m ay alw ay s co n sid er th e Su p r e m e Co u rt’ s reaso n i n g in ap p ly in g A EDP A
, bo th W

ig g in s an d Ro m

p illa ex am in ed th e prej u d ice p ro n g of S trickla n d d e n ov o

. W

ig g in s , 5 3 9 U.S. at 5 3 4 ; Ro mp illa

, 5 4 5 U .S. at 3 9 0

. T h eref ore, t h ese cases d o n ot p ro v id e an y g u id an ce o n th e issu e bef o re u s,

w h eth er a state co u rt’ s d eterm in atio n th at co u n sel’ s d ef icien cy w as n o t p rej u d icial w as an u n reaso n ab le ap p li c a tio n o f clearly estab lish ed Su p rem e Co u rt p reced en t

.A N D R E W S V

. D A

V I S 66

550 U.S. 465, 473 ( 2 0 0 7 ))

. I nstead, the dissent concludes
t h a t the California Supreme Court unreasonably appli e d Strickland based on the d issent’s own view that “at least o ne juror” would be inclined to “spare Andre w s ’ s life” if evidence of the abu s e a t Mt. Meig s h ad been p resented. Dissent at 92; s e e id. at 92, 111, 120. This approach would be wrong even under de novo review. The dissent’s limited focus on a sing le piece of evidence fails to take into account the totality of the mitig a ting and ag g ravating evidence in the record. See Strickland

, 466 U.S. a t 695. I n this contex t, the dissent’s supposition that one juror would have been moved

amou n t s to little more than a mere p ossibility of a different outcome, where the Supreme Court has made clear that “[ t] he likeliho o d o f a d ifferent result must be substantial, not just conceivable.” R i chter

, 562 U.S. at 1 12 (citing Strickland

, 466 U.S. at 693).

The dissent’s errors ar e e v en more g laring on AEDPA review. The Court has told us frequently and emphatically that “ [ i ] t i s not enoug h that a f ederal habeas court, in its in d e p e ndent review of the leg al question, is left with a f irm

con v i ction that the state court was erroneous.” Lockyer

, 538 U.S. a t 75 ( internal quotation ma rks and citations omitted). Rather, the state court’s decisio n “must be objectively unreasonable,” id.

, c o nsidering “the totality of the evidence before the judg e or jury ,” Strick l a n d

, 466 U.S. at 695. Here, rather than apply AEDPA deference, the d i s s e nt steps into the shoes of the dissenting justice of the California S u preme Court in this case, see Dissent at 98, 100–104
, 107–108, 116, and applies Strickland de novo. I n d e e d

, the dissent even makes its o w n factual finding s. See Dissent at 107, 115 (discounting the substantial rebuttal evidence that would have been presented at sentencing on th e gr o und that the prosecutor from Andrews’s trial would not haveA N D R E W S V

. D A

V I S 67

introduced r ebuttal witn e s ses h ad the defense presented evidence of A n d

r e w s ’ s p r i s o n c onditions, a factual conclusion contrary to the d eterminations o f the referee a nd the California Supreme Court, see In re And r e w s , 52 P.3d at 666). Such review is erroneous under AEDPA. I n taking this de novo approach, the d issent has f ailed to g rapple with “the only question that ma t t ers under § 2 254(d)(1),” Lockyer

, 538 U

. S. a t 71, whether the state court’s application o f the clearly established Supreme Court precedent was objectively unreasonable.

B e cause the state court’s rejection of Andrews’s penalty phase ineffective assistance of counsel claim was not contrary to or an unreasonable ap p l i c ation o f Supreme Court
p recedent, we may not g rant relief on this cl a i m

. § 2254(d)(1). W e therefore reverse the district c o u r t ’s contrary conclusion.

D

B e cause we decide Andrews’s c l a i m on prejudice
g rounds, we need not add r e s s the parties’ arg uments reg arding whether counsel’s performance was deficient at the penalty phase. Strickland

, 466 U.S. at 697. 2 5 Suffice it to

s a y , the dissent fails to conduct an AEDPA analy sis o f t h e California Supreme Court’s determinatio n that Andrews’s attorney was not deficient un d er S trickland

. I nstead, as we have p reviously noted, supra at 25 n.3, 26–27 n.4, 2 8 n .5, 28–29 n.6, 30 n.7, 30–31 n

. 8
, 33–34 n.9, the dissent eng ag e s in de novo review o f both the f acts and the law at issue, see

25 W e also n eed n o t co n sid er th e ad d itio n al ag g rav atin g ev id e n c e p u t f o rth b y th e s tate, w

h ich A n d rew s d isp u

tes, an d th eref

o re den y th e state’ s

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

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

. D A

V I S 68

Dissent at 96–111, and r e lies on cases t h a t were not clearly established at the time of the Californi a S u p r eme Court’s ruling

, see, e.g. , Dissent a t 100, 106 ( rely ing on the deficiency analy sis of Porter
, which was decided y e a r s 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 “an y c ompetent attorney would have presented” the Mt. Meig s evidence, Disse n t a t 109, the d i ssent ig nores “the doubly deferential judicial review tha t applies to a Strickland claim evaluated under the § 2254(d)(1) standard,” M

irzayance
, 556 U.S. at 123. According ly

, the dissent fa i ls to raise a

n y serious q

uestions reg arding the California Supreme Court’s analy sis of Strickland ’s deficiency

prong

.

I I I

Having addressed the state’s cross-appeal, we n ow turn to Andrews’s appeal of the district court’s dismissal of his sole certified claim ( C l a im 25) that California’s use of its lethal injection protocol to ex ecute him would violate his Eig ht h Amendment rig hts. A c cording to the district court, the California lethal injection protocol mirrored the Kentucky lethal injection protocol upheld by the Supreme Court ag ainst

an Eig hth Amendment c h alleng e in Baze v. Rees
, 553 U.S. 35 (2008). The court reaso n e d t h a t in lig ht of Baze ’s ruling

, it would be impossible for Andrews to succeed on his challeng e t o California’s lethal injection protocol, and therefore re j e c t e d this claim.

At the time the district c ourt ruled in J uly 2 009, California did not h ave a lethal injection protocol in place. As ex p lained in Sims v. Department o f Corrections
, the California Department of Correction s an d Rehabilitation (CDCR) hasA N D R E W S V

. D A

V I S 69

the responsibility for developing a p ro c edure f or ex ecutions by lethal injection. 216 Cal. App. 4th 1059, 1064 (2013). I n December 2 006, a federal district court r u l e d t hat CDCR’s
p r o c e d u r e v iolated the E ig h th Amendment prohibiti o n a g a i n s t cruel a nd unusual punishment. Id. (citing Morales v. Tilton

, 465 F

. Supp. 2d 972 (N.D. Cal. 2006)). Althoug h the CDCR substantially revised its protocol in 2007
, a s tate trial court inva l i d a t ed the revised procedure on the g round that it violated the state’s administrativ e procedure act. Id. 2 6 B ecause no new protocol was in place at the time the district
court ruled, the claim was unripe, a nd the district court erred in entertaining it. S

ee Payton v. Cullen

, 6 5 8 F. 3 d 890, 893

26 A f ter lo sin g its ap p eal, CDCR pro m u lg ated a n ew p ro ced u re, w h ich
to o k ef f ect o n A u g u st 2 9
, 2 01 0

. Sims
, 2 1 6 Cal. A p p

. 4 th at 1 0 6 4– 6 5. In
resp on s e to a n ew leg al ch allen g e, a trial co u rt a g a i n in v alid ated th e CDCR leth al in

j ectio n pro ced u re fo r f

ailu re to co m

p ly w ith th e state ad m i n istrativ e p ro ced u re act an d p erm an en t l y e n j o in ed t h e CDCR f

ro m ad m i n isterin g ex ecu tio n s b y leth al i n j ectio n u n til it p ro m

u lg ated n ew reg u latio n s. Id

. at 1 0 6 6– 6 7

. T h is in j u n ctio n w as u

p h eld o n ap p eal. Id

. at 1 0 8 3

– 8 4

. T h e CDCR p ro p o sed a n ew sin g le- d ru g leth al in j ectio n p ro to co l in No v em b er 2 0 1 5

. P u rsu an t to C a l i fo rn ia’ s A d m in i strativ e P ro ced u re A ct (A P A ), th e CDCR h eld a m an dato ry p u b lic c o m m e n t p erio d

, resp on ded to each su

b stan tiv e co m

m en t, m ad e an y n ecessary ch an g es, an d

resu b m itted th e p ro p o sed p ro to co l f o r ad d itio n al p u

b lic c o m m en t u n t i l No v em b er 7, 20 1 6

. S

ee Cal. Go v

. Co d e § § 1 1 34 6

– 4 8

. On Decem b er 2 8
, 2 0 1 6
, th e Calif

o rn ia Of f ice o f A d m i n istrativ e L aw (OA L ) rej ected th e p ro p osed leth al in

j u n ctio n p ro to co l an d stated th at rev isio n s m a y b e

resu b m itted w ith in 1 2 0 d a y s

. In 2 0 1 6
, Calif o rn ia v oters ap p ro v ed th e Death P en alty Ref

o rm an d Sav in g s A ct o f 2 0 1 6 (P ro p o sitio n 6 6 ), w h ich

am en d ed s t a te statu te to p ro v id e t h at th e state A P A d o es n o t ap p l y to leth al in j ectio n p ro to co ls. T h e Calif o rn ia Su p rem e Co u rt st ay ed

“ i m p lem en tatio n o f all p ro v i s i o ns of P ro p o sitio n 6 6 ” p en din g th e

reso l u tio n o f litig atio n ch allen g in g its im plem en tatio n

. Brig

g s v. Bro wn , 3 8 7 P .3 d 1 2 5 4 , 1 2 5 5 (Cal. 2 0 1 7 ).A N D R E W S V

. D A

V I S 70

(9th Cir. 2011). 2 7 Andrews may renew his challeng e when California has finally

approved its protocol. Id.

I V

Andrews also r aises several uncertified claims b a s e d on the following leg al t heories: (1) unconstitutional delay between sentencing and ex e cution under Lackey v. Texas
, 514 U.S. 1 0 4 5 (1995) (Stevens, J
., statement respecting denial o f c ertiorari); (2) ineffective assistance of trial counsel under Strickland ; (3) failure to disclose material ex culpatory eviden c e a n d false testimony under Brady v. Maryland

, 373 U.S. 8 3 (1963), and Napue v

. Illinois

, 360 U.S. 264, 269 (1959); and (4) d es t r u ct i on of evidence in violation of d ue process under California v. Trombetta

, 467 U.S. 479 (1984), and its prog eny

. He als o r a i s e s uncertified c laims based on cumulative error and factual innocence.

W e fi r st turn to the q

uestion whether Andrews mus t obta in a COA for these claims under 28 U.S.C. § 2253(c). 2 8

27 In lig h t o f

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

.

28 Sectio n 2 2 53 (c) states:

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

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

ap p eals f ro m

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

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

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

. D A

V I S 71

Our a n aly sis of this question is g o verned by Jennings v

. Stephens

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

on alternate g rounds without taking a cross-appeal a nd obtaining a COA. 135 S. Ct. 793, 798 (2015). Jennings h eld 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 judg ment o n a theory that seeks “to enlarg e his r ig hts o r lessen the S t a t e’ s under the District C o u rt ’ s judg ment g ranting h abeas relief.” Id. a t 798, 801–02. 2 9 F urther, because “§ 2253(c) applies only when ‘an appeal’ is ‘taken to the court of appeals,’” id

. at 802 (quoting § 2253(c)), a petition er w h o does not have to take a crossappeal does not need a COA, id. Apply ing this rule, Jennings noted that the district court’s judg ment g ranting the p etitioner relief at the penalty phase of his trial entitled him “ to release, resentencing

, o r commutation, at the State’s option.” I d. at 7 9 9

. According ly

, “[ a ] ny potential claim that would hav e entitled [ the petitioner] to a new sentencing proceeding could

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

. (2 ) A certif

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

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

(3 ) T h e certif

icate o f ap p ealab ility u n d er p a rag rap h (1 ) s h all in d icat e w

h ich sp ecif

ic issu e o r issu es satisf

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

p arag rap h

(2 ).

29 Jen n in g

s w as n o n eth eless caref

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

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

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

.A N D R E W S V

. D A

V I S 72

have been advanced to ‘urg e

. . . suppo r t ’ of the judg ment,” id. at 800 (last alteration in ori gi n al) (quoting United States

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

a cross-appeal nor a COA would be required. Id. a t 800–02. B y contrast, “[ a] habeas applicant who has won resentencing would be requi r e d t o t a ke a cross-appeal in order to raise a rejected c l ai m t hat would r esult in a new trial.” Id. at 800. And “if a habeas applicant has w on retrial below, a claim that his conduct was constitutio n a l l y bey ond the power of the State to punish would require cross-appeal.” Id. I n both such
cases, a COA would also have been required. See id. a t 802.

Here, Andrews won relief at the district court based on his theory of ineffective a ssistance of counsel during the penalty phase of his trial. The district court ordered that “the State o f California shall, within 120 day s from the entry o f t h i s J udg ment, either g r ant Petitioner a new penalty phase trial, o r vacate the d eath sentence and resentence the Petitioner in accordance with Californi a law and the United States Cons t itution.” According ly

, Andrews’s rig h ts under this j u d g ment were for a new penalty p hase trial or resentenci n g within a fix ed time, a

nd Andrews may urg e any potential claim present in the record that would entitle him to a new penalty phase trial o r resentencing without taki n g a crossappeal or obtaining

a COA. See id. at 800–02.

B u t none o f Andrews’s u n certified claims support the district court’s judg ment. F ive of his claims seek a n ew g u ilt phase trial ( his Strickland

, Brady / Napue
, Trombetta

, a

nd cumulative error claims, and a factual innocence claim). 3 0 A s

30 W h ile th e Su

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

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

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

. D A

V I S 73

ex p l a i ned in J

ennings
, because Andrews won resentencing

, he must take a cross-appeal and o btain 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. B ecause the distri ct court’s order g ave the state the rig ht to seek the death penalty at a new penal ty p hase trial, Andrews’s Lack

ey and factual innocence claims seek to “les s e n the State’s [ rig h ts] under the District Court’s judg ment g ranting h abeas relief. ” Id

. at 798. Under Jennings
, A ndrews must bring a c ross-appeal and obtain a COA to raise these claims as well.

W e lack jurisdiction to consider uncertified claims unless

we determine that Andrews “has made a substantial showing

o f t h e d enial of a constitutional rig h t” and g rant a C O A

. 28 U.S.C. § 2 253(c)(2); see also Ninth Circuit Rule 22-1(e) (“Uncertified issues raised an d desig nated [ in a petitioner’s
op en i n g b r ief] will be construed as a motion to ex pand the COA

. . . .”). H abeas petitioners must make a “showing that reasonabl e j u r i sts could debate w hether (or, for that matter, ag ree that) th e p etition should have been resolved in a different manner or that the issues presented were ade q u ate to deserve encourag ement to p roceed further.” Slack v

. McDaniel

, 529 U.S. 4 73, 4 84 (2000) (internal q u o tation marks omitted). B e c ause the stat u t e is jurisdictional,“[ t] his threshold question should be decided without ‘ full consideration of the factual or leg al 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)). A s the Supreme Court d irected in Miller-El

, r at h e r than “[ d] eciding the substance of an appeal,” 537 U.S. at 342, we

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

. D A

V I S 74

“look to the District Court’s application of AEDPA to petitioner’s constitutional claims,” id. at 336, in li gh t o f a “fair interpretation of the record,” id. at 345, and ask whether “reasonable jurists would find the district court’s a ssessment of the constitutional claims d ebatable or wrong , ” id. a t 3 3 8

. W h ile the Court has not specified “what proc e d ures may be appropriate in every

case,” any p rocedures “employ ed a t the COA stag e should be consonant with the limited nature o f the inquiry .” Buck , 137 S. Ct. at 774.

A

W e f irst co nsider Andrews’s claim that his ex e cution would violate the Eig hth Amendment due to the long delay betwe e n his sentence and ex ecution. A ndrews did not raise this claim in h is opening brief o n a ppeal, but moved to file a supplemental brief r a i sing this claim after a district court i s s u e d a decision h olding that under Furman v. G eorgia
, 408 U.S. 2 38 (1972) and G regg v. Georgia
, 428 U.S. 153 (1976), California’s death p enalty sy stem violated the Eig hth Amendment because its “dy sfunctional administra tion” resulted in “inordinate and u npredictable” periods of d e l a y before ex ecution, such that ex ecutions do not serve a retributive or deterrent purpose and will b e a rbitrary

. 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 g ranted h is m o t i o n , a nd ordered the state to respond.

I n his brief, Andrews stated that he raised this claim to the district court as Claim 26. I n Claim 26, Andrews had a rg u ed that ex e cuting him after 22 y ears on death row would b e cruel and unus u a l p unishment in violation of the Eig hth Amendment and would serve no retributive or d e t e r r entA N D R E W S V

. D A

V I S 75

penolog ical purpose. Claim 26 also ass erted that Andrews did not cause any u n n e cessary d elay s, b ut merely soug h t to vindic at e his constitutional rig hts in a sy stem that produced delay s. Andrews ex hausted 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
g round that there has been no demonstration of “ any support in the Am e rican constitutional tradition or in [ Supreme Court] precedent for the p roposition that a defe n d a n t can avail himself of the panoply o f a ppellate and collateral procedures and then complain when his ex ecut i o n is delay ed,” a quote fro m K n i g h t v. Florida

, 528 U .S. 990 (1999) (Thomas, J
., concurring in a denial of certiorari), relied o n b y two Ninth Circuit cases, S m i t h v

. Mahoney

, 611 F

. 3 d 978, 998 (9th Cir. 2010), and Allen v. O rnoski

, 4 35 F .3d 946, 958 (9th Cir. 2006), a s evidence th a t n o Supreme Court p r e c e d e n

t supports a claim of unconstitutional delay

.

On appeal, Andrews arg ues that the delay in carry ing out the death sentence makes California’s death penalty unconstitutional both on its face and as applied to him. After discussing in detail Jones ’s reasoning and conclusion that the California death penalty sy stem is u nconstitutional, Andrews
arg ues that no fairminded jurist could dis ag ree with such a conclusion in his c ase, b ec a use he has been continuously confined under sentence of death for more than 30 y ears, a nd the delay s are caused by factors outside h is control. Andrews also points to separate statements by individual Supreme Court justices questi oning the constitutionality of the inherent delay in c apital cases. See, e.g. , Muha m m ad v

. Florida

, 1 34 S. Ct. 894 (2014) (B rey er, J
., dissenting from denial o f certio r a r i); Johnson v. Bredesen

, 558 U.S. 1 067 (2009)A N D R E W S V

. D A

V I S 76

(Stevens, J
., joined by B rey er, J
., statement respecting denial of certiorari ) ; L a ckey

, 514 U.S. 1045 (Stevens, J
., statement respecting denial of certiorari) (stating that a prisoner’s claim that h is 17 y ears on d ea t h r o w v iolates the Eig hth Amendment’s prohibitio n a g ainst cruel and unusual punishment was “no t without foundation,” and encourag ing state and federal courts to consider the issue).

Before we can a ddress this claim, we must conside r several procedural hurdles. As a threshold matter, Andrews did not r aise this claim in h is opening brief on appeal. W hile
we g enerally

deem a petitioner to have waived any issue not raised in an opening brief, s e e U nited States v. Ullah

, 976 F

. 2 d 5 0 9
, 514 (9th Cir. 1 992), we r ecog niz e ex ceptions
to this g eneral rule. Such an e x ception is applicable here: the
state has fully briefed the issue and would suffer no prejudice. See id . Therefore, we conclude we may address this issue.

Nex t, the state arg ues that Andrews’s claim was n ot fairly
p r e sented to the California Supreme Court o r the district

co u r t, and so is both unex hausted and waived. “A federal
court may not g rant habeas relief to a state prisoner unless he has properly ex hausted his remedies in state court.” Dickens

v. Ryan
, 740 F .3d 1 302, 1317 (9th Cir. 2014) (en banc) (quoting Peterson v. Lampert
, 319 F .3d 1153, 1155 (9th Cir. 2003 ) (en banc)). Ex haustion of constitutional c laims requires that t h e c l a i ms be “fairly presented” in state court, allowing the state courts an “opportunity to act on them.” Id.
at 1318 (alterations and internal q u o t ation marks omitted). To be fairly p r e s e n ted in state c ourt, a claim must include: (1) “a st a t e m e n t of the facts that entitle the petitioner to relief,” Gray v

. N

e therland

, 518 U.S. 152, 162–63 (1996), and (2) citations “to e i ther a federal or state case involving the leg a l standard f

o r a f ederal constitutional violation,”A N D R E W S V

. D A

V I S 77

Castillo v

. McFadden

, 399 F

. 3d 993, 999 (9th Cir. 2005). “A claim has not been fairly presented in s tate c ourt if new factual a lleg ations either fundamentally alter the leg al claim already considered by the state c our t s, o r place the case in a sig nificantly different and strong er evidentiary post u r e than it was when the state c o u rts considered it.” Dickens

, 740 F .3d
at 1318 (citations and internal quotation marks omitted). Two claims are distinct and must be separately ex hausted if the claims are based on the sam e f acts, but are supported b y distinct constitutional theori e s

. See Gray
, 518 U.S. at 163–65. “[ G] eneral appeals to bro ad constitutional principles, such as due p rocess, equal protection, and the rig ht
to a fair trial, are i n s u f f i cient to establish ex haustion.” Hiival a v

. W

ood

, 195 F .3d 1098, 1106 ( 9th Cir. 1999). B ut when claims are “ sufficiently related” or “intertwined” so that raising o ne c l e a r l y implies the other, ex hausting one claim will also ex h aust the related claim, so lon g a s t h e failure to

ex p licitly raise the related claim was not a “strateg ic choice.” L o u n s b u ry v. Thompson

, 374 F .3d 785, 788 (9th Cir. 2 004) ( i n t e r nal q uotation marks omitted) (holding that e x haustion of a procedural challeng e to petitioner’s compe t e n cy determination ex hausted a substantive challeng e to the same determination, thoug h the two challen ge s r elied on two distinct F ifth Amendment theories); see also W ooten v

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

The stat e asserts that there is a distinction between the
sort o f E i ghth Amendment claim that Andrews raised to the California Supreme Court and in district court (sometimes referred to as a Lackey claim), an d t h e Eig hth A mendment claim bas e d o n Jones he is raising here, such that the state courts lacked an opportunity to consider it. Specifically

, the

s t a t e a rg ues that a Lackey claim is an individual c halleng e, based on the theor y t hat e x ecuting a prisoner who has spentA N D R E W S V

. D A

V I S 78

many y ears on death r ow violates the prohibition on cruel a nd unusual punishment of that prisoner, while Jones was based

on the theory that the California sy stem itself crea t e s t h e constitutional infirmity

, b e cause inordinate d elay makes the
sy stem arbitrary and unable to serve a deterrent or retributive purpose, in violation of the Eig hth Amendment.

W e disag ree that Andrews is raising a sy stemic challeng e to California’s administration of i ts death penalty sy stem, which would be a new and unex h a u s t e d claim. Rather, Andrews’s claim before the state c ourt, the district court, a nd

on appeal here is essentially the same const i t u t ional claim: that his rig ht to b e f

r e e from c ruel and unusual punishment under the E ig hth Amendment is v iolated by his leng thy incarceration while under a sentence of death. Andrews has
not introduced any new facts or evidence since he raised this
argu ment to the state c ourt. Andrews’s supplemental brief points to J

ones ’s conclusion that there are sy stemic delay s in imposing the death penalty throug hout the California sy stem, b u t uses this conclusion to support his Lackey claim that “inherent delay in c a

pital cases” renders ex ecu t i o n s unconstitutional. A ccording ly

, Andrews’s references to Jone s d o not “fundamentally alter the leg al claim already considered by the state courts.” D ickens

, 740 F. 3 d at 1318 (internal quotation marks o mitted). W e therefore con clude that Andrews’s uncertified claim, a s briefed on appe a l, is sufficiently related and inte r t w i n e d with Claim 26 such that Andrews’s ex h austion of Claim 26 likewise e x haust e d his
current challeng e. See Lounsbury

, 374 F

. 3d at 788. Moreover, Andrews raised this same c l a i m to the district
court. According ly

, Andrews e x hausted this delay c laim a nd did not waive it.A N D R E W S V

. D A

V I S 79

W e now consider A ndrews’s motion for a COA for this claim. The district court denied C l a im 26 because the state court’s rejection of this claim wa s n o t an unreasonable application of Supreme Court precedent. No reasonable jurist would find the district court’s ruling d ebatable or wrong

. See Slack

, 529 U.S

. a t 484. As w e have previously stated in the AEDPA contex t, no clearly establi s h e d Supreme Court precedent holds that inordinate delay i n t he ex ecution of a capital defendant constitutes cruel a nd unusual punishment in

v iolation of the Eig hth Amendment. Allen

, 435 F .3d a t 958–60. Andrews arg ues that the state court’s r ejection of his delay cl aim is c ontrary to Furman
, 408 U.S. a t 311–12 (W hite, J
., concurring ), and Gregg
, 428 U.S. at 188 ( p lurality opinion). B ut these cases articulate a g eneral Eig hth A m e n d m e n t s t a n d a r d t h a t t h e d e a t h p e n a l t y i s unconstitutional if imposed arbitrarily

, or if the penalty itself does not serve the penolog ical purposes of d eterrence a nd retribution. These principles do not “squarely address[ ] ” the

s p e c ific issue raised by Andrews’s delay claim, and would require a sig nificant e x tension of the rationale of Furman a nd G r e g g to apply in this particular contex t. See V a n Patte n , 552 U.S. at 125–26.

W e reach e d a similar determination in Jones v. Davis
, where we held that neither Furman nor Gregg established the rule th a t the Eig hth Amendment barred delay s in resolving post-conviction proceeding s. See 806 F .3d at 551. I n lig ht o f the Supreme Court’s rule that “federal court s may not consider novel constitutional theories o n habeas review,” id.
at 5 4 1 (citing Teague v. Lane
, 489 U.S. 288 (1989)), we

c o n cluded that neither a Lackey claim n or a sy stemic challeng e to California’s death penalty sy st e m w a s cog niz able in federal h abeas p roceeding s. I d. at 548, 552. B ecause such claims are barred from habeas con s iderationA N D R E W S V

. D A

V I S 80

under Teague
, see id. at 5 4 8
, 552, they are not clearly

e s t a blished rules under 2 8 U.S.C. § 2254(d)(1). Schard t v. Payne
, 414 F .3d 1025, 1037 (9th Cir. 2005). Therefore, the
state court’s rejection o f Andrews’s delay claim w a s not an

u nreasonable application of Furman or Gregg
, a n d r e a s o n a

b l e jurists would not dispute the district court’s conclusion to that effect. S e e W oodall

, 134 S. Ct. at 1 706–07. Therefore, the
state court’s rejection o f Andrews’s d e lay claim was not an unreasonable application of Furman o r G r e g g , a n d r easonable jurists would not dispute the district court’s conclusion to that effect. See W

o odall , 134 S. Ct. at 1706–07.

B e cause And r ews has not made a “substantial showing ” that his Eig hth Amendm e n t rig hts were violated, see 28 U.S.C. § 2253(c)(2), we deny a COA for this claim.

B

W e nex t turn to Andrews’s four uncertified c laims alleg ing t h a t trial counsel were ineffective under S trickland fo r f a i ling to investig ate and present four categ ories o f evidence.

The first claim relates to the police’s investig ation o f

s uspects before Sanders was a rrested and ag reed to te s t i f y pursuant to a plea ag reement. During the investig ation, police officers took statements from at least nine w itnesses

a n d informally interviewed many others who provided information about activities in a n d around W heeler’s apartment in the day s leading up to the murders. A ccording
to these statements, W heeler’s drug c ustomers frequented his apartment, disturbances were a reg ular occurrence, a nd shooting s h ad occurred in the apartment. The police did not find any corroborating p h y sical or testimonial evidenceA N D R E W S V

. D A

V I S 81

s u gge s t ing that a

ny o f these drug customers was the k iller

. W h en i n v estig ating W heeler’s apartment, the police f ound fing e r p r i n ts of individuals w ho had been seen in the apartment on the evening the murders occurred, but nothing linking them to t h e crime. The police arrested one d rug dealer who worked with W heeler, but ultimately re leased him. W hen in t e r r o gated, this drug dealer denied murdering W h eeler, but told the p o l i c e t h at a Mex ican Mafia member had told him that the Mex ican Mafia had murdered W heeler. He did not provide any c o rroborating evidence to support this story

. Rely ing on this e vidence, Andrews claims that his trial counsel were ineffective for failing to investig ate and present evidence that third p arties, such as W heeler’s customers a nd fellow dealers, had the motive and opportunity to c ommit the murders due to their drug

- related dealing s with W h e eler. The

s t a t e court summarily rejected this c laim when it deni e d Andr e ws ’s second state habeas petition. The district court denied relief on this claim.

W e conclude that r easonable jurists would no t f i n d debatable or wrong the district court’s conclusio n t hat this

c l a i m fails under S

trickland a

nd A EDPA. See Slack

, 529 U.S. at 4 8 4

. The e vidence a dduced at trial was overwhelming : Sanders, an ey e witness, testified to the events of the mu rders, B rooks testified reg arding Andrews’s confession, and the evid e n ce established that Andrews’s palm prints were found o n either side of B randon’s b od y

. I n r e Andrews

, 5 2 P.3d at 6 58. A ccording ly

, reasonable jurists would n ot debate the reasonableness o f the state court’s conclusion that counsel’s failur e t o further investig ate these suspects d id not prejudice Andrews’s defense. See Strickland , 466 U.S. at 694.A N D R E W S V

. D A

V I S 82

Second, Andrews a

rg ues that counsel were ineffective for failing to investig ate o r present evidence that semen found on B randon’s b ody could not have co m e from Andrews. The district court’s conclusion that the state court did not unreasonably apply S t r i ckland in rejecting this claim is not debatable, because the state court could reasonably conclude that counsel’s failure to introduce such evid e nce was not prejudicial. The r ecord shows only that slides c ontaining

semen found on B randon’s b o d y c ontain biolog ical markers that some people secrete a nd others d o not. And r ews does
not secrete these markers, but the record is sile n t a s to whether B randon was a sec r e tor. Andrews offers statistical evidence sug g esting that B randon was probably not a secretor, but the e v i dence is n ot c o nclusive. I ndeed, even other ex p erts testify ing for Andrews noted that what minimal evidence they obtained was subject to c h alleng e

. I n lig ht o f the ey ewit n e s s t e s timony about Andrews’s involvement in the murders, and h i s p a l m prints nex t to B randon’s body

, r easonable jurists would not dispute that the state court reasonably concluded that any deficiency by defense counsel was not prejudicial.

Nex t, Andrews raises two claims relat i n g to the police investig ation of fing erprint evidence f ound at W heeler’s apartment. A s ex plained by the state court on direct appeal,
two of the police’s fing e rprint ex perts, Howard Sanshuck a nd Donald Keir, testified at trial that they compared 50 fing erprints found in W heeler’s apartment with Andrews’s fing erprints and palm prints. People v. Andrews

, 7 76 P.2d at 289. The two e x perts c oncluded th a t l e ft and rig ht palm prints on t h e k i t c hen floor on either side of B randon’s body belong ed to A n d

rews. Id

. Sanshuck’s supervisor, J immy Cassel, had previously reviewed the prints a n d initially labeled them as belong ing to W heel e r

. Id

. SanshuckA N D R E W S V

. D A

V I S 83

d i scovered the error shortly before Andrews’s first trial. At
t h e s e c o n d trial, Ca s s e l s t a t e d t h a t t h e o r i gi n al miside n t i f

i c a tion was due to his efforts to process the crime

scene information too quickly

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

. The three ex perts, Sanshuck, Keir, and Casse l, all testified at the second trial that Andrews’s palm prints matched the palm prints f ound on either side o f B randon’s body

. Id

. Andrews has never adduced any evidence to rebut this.

O n a ppeal, Andrews claims that his counsel were deficie n t i n failing to investig ate two different lines o f defense. F irst, Andrews c la ims that counsel performed deficiently by failing to p resent evidence that A ndre w s’s fing erprints could have been left in W heeler’s apartment d ue to his prior visits. Second, Andrews claims that couns el should h ave uncovered a n d used the police’s orig inal misidentification of his palm prints. Andrews p oints to other

r e p o r t s in the record which he claims shows that Keir and a third analy st, W illiam L e o , also misidentified his fing erprints. The distri ct c o urt rejected this claim. I n lig ht of the unrebutted evidence that the palm prints found o n either side of B randon’s body were Andrews’s prints, n o reasonable jurist would dispute the district court’s determination that the
state c ourt c ould r easonably have concluded that cou n s e l ’s handling of t h e fing erprint evidence did not prejudice Andrews’s defense. See Strickland , 466 U.S. at 694.

F inally

, Andrews claims that counsel were ineffective for failing to investig ate or present evidenc e r e garding his alibi the nig ht of the murder. The record shows that Andrews g ave

a defense investig ato r t h e names o f two alibi witnesses a nd inform a tion on how to locate them, but Andrews did notA N D R E W S V

. D A

V I S 84

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 c laim. I n lig ht of the detai l e d t estimony from Sanders and B rooks, the evidenc e o f Andrews’s palm prints on either side o f B randon’s b ody

, a n d t he lack of any evidence reg arding the alibi wit n e s s es , n o reasonable jurist would dispute that the
stat e c ourt reasonably a

p plied Strickland in concluding that counsel’s failure to further investig ate these witnesses wa s not prejudicial.

Andrews relies on United States v

. Valenzuela-Bernal for the p roposition that he could establish his ineffective assistance of counsel claim without showing how his alibi witnesses w ould have testified, because he needed to s h o w only that their testimony

would be material and favorable to his defense. 458 U.S. 8 58, 867 (1982). Therefore, Andrews claims, the state court erred in rejecting his Strickland c laim. T h e district court r ejected this arg ument, and we ag ree. Valenzuel a

- B e rnal h e ld that w hen the g overnment d eports al i e n s who c ould aid a criminal defendant in his defense,
t h ere is no violation of the criminal defendant’s rig ht t o compulsory process u nder the Six th Amendment unless the defendant “make[ s] some plausible showing of how [ the alibi

w i tness’s] testimony would have been both material a n d favorable to his defense.” Id. This ruling does not “squarely address[ ] the issue,” Van Patten
, 552 U.S. at 125–26, o r “establis h a l eg al p rinciple that clearly ex tends” to the question whether Andrews’s counsel’s failure to p u rsue the alibi w itnesses was ineffective assistance of co u n s el, see Moses
, 5 55 F .3d at 754 (quoting V a n Patten
, 552 U.S. at 123) ( a l t e ra t i o n s a n d internal quotation marks omitted). According ly

, the stat e court’s rejection of Andrews’s claimA N D R E W S V

. D A

V I S 85

was not an unreasonable application of V a l enzuela-Bernal. See W oodall , 134 S. Ct. at 1706–07.

I n sum, the state court d i d n o t unreasonably a pply Strickland in concl u d i n g that Andrews did not create a “substantial, not just conceivable” likelihood o f a different result, o r th a t “ a n y real p ossibility of [ Andrews’s] being acquitted was eclipsed b y the remaining evidence pointing to g uilt,” R ichter

, 562 U.S. at 1 12–13; see also S t r ickland

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

, Andrews has not made a “substantial showing of the denial of a constitutional rig ht,” 2 8 U.S.C. § 2253(c)(2), and we decline to i s sue a COA.

C

Andrews arg ues that the state court erred in r ejecting two

c l a ims that his rig hts under Brady were violated. Brady requires the state to disclose “evidence that is both favorable
to the accused and material either to g u ilt 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 r esu l t o f the proceeding would have been different.” Id. at 682. Thus, to establish a Brady violation, a defendant must prove: (1) “[ t] he evidence at i s s u e [ is] favora b l e t o the accused, either because it is ex c ulpatory

, o r because it is impeaching

, ” (2) the evidence was “suppressed

. . . e ither willfully o r inad v e rt en t ly ,” and (3) prejudice resulted, meaning there is a reasonab l e probability that disclosing th e e v i d e n ce to the defense w ould have chang ed the result. See Strickler v. Greene
, 527 U.S

. 2 6 3
, 2 81–82 (1999); Bagley , 473 U.S. at 682.A N D R E W S V

. D A

V I S 86

And r e w s claims the state suppressed two pieces o f evidence. F irst, he c o n tends that t h e p rosecution failed to disclose a c ase file maintained by the L o s Ang eles Police Department, termed a “murder book,” which con t ained material evidence including the third party c u lpability a nd fing erprint evidence also advanced in support of his ineffective as s i s t ance of c o u nsel claims. The state court could reasonably h a v e rejected this c l a im because the state had provided counse l w ith a chronolog y of the police investig ation referring to much of the alleg edly suppressed murder book evidence. T he d istri c t court h eld the state court’s conclusion was n ot an unreasonable applica tion o f Brady

. No reas o n ab le jurist could disag ree with this conclusion, because the state court could reasonably h a v e concluded that the evidence was not suppressed under Brady

. See United States v. D upuy , 760 F .2d 1 4 92, 1501 n.5 (9th Cir. 1985) ( h olding the g overnment does not suppress e vi d e n c e f o r purposes of Brady where “ the means of obtaining th e

ex c u lpatory evid e n ce [ w as] provided to the defense”). M o r e o v er, the state court c o uld have reasonably concluded that the result of the proceeding would not have been different e v e n if the evidence had been disclosed to the defense. S

ee Strickler , 527 U.S. at 280.

F or the same reason , n o r easonable jurist could disag r ee with the district court’s rejection of A ndrews’s second Brady claim, that the prosecution withheld the f act that B rooks was subject to charg es of welfare fraud. T h e state court could h ave reasonably concluded that defense counsel h a d sufficient information to discover that c harg es had been filed, because defense counsel knew t h a t B rooks was being investig ated for welfare fraud, and questioned her about it at trial, outside the presence of the jury

. S ee Dupuy
, 760 F .2d at 1501 n.5.A N D R E W S V

. D A

V I S 87

Andrews also raises claims under Napue
, which provides that the state may not “knowing ly use false evidence, including false testimony ” or “allow[ ] it to g o unco r r e c t e d when it a ppears.” 3 60 U.S. at 269. According to Andrews, the state knowing ly adduced false testimony from two fing erprint ex perts, Keir and Sanshuck. F irst, Andrews notes that a re p o r t in the record, dated Aug ust 4, 1980, states that Keir reviewed “fing ers” f

rom a suspect named “ W alters” (the alias being used by Andrews at the time) and concludes that the prints were “not made.” T his means, Andrews a rg u es, that Ke i r l i e d in identify ing the palm prints found b y B randon’s b ody as being from A ndrews, and also lied when he testified that he first ex amined Andrews’s palm prints in November 1983. The state asserts Keir did not testify falsely

, because the report r eferences fing erprints, while Keir testified
reg arding p alm prints. Second, Andrews arg ues t h at Sanshuck’s testimony that police policy did not r e q uire photog r aphs to be taken of prints on the surface from which
t h e y w e re lifted was false, because it contradicted a L os Ang eles Police Department Homicide Manual, dated 1981. 3 1 The sta t e arg ues that no f alse information was knowing ly
presen t e d

, see id.

, because the homicide manual used permissive, not m a n d a tory , lang u ag e , and because the manual’s statement d id not reflect the police departme n t’s

31 T h e L os A n g eles P o l ice Dep artm en t Ho m icid e Man u al states i n p ertin en t p art:

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

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

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

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

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

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

. D A

V I S 88

actual practice, which was the subj e c t of Sanshuck’s testimony

. The district cour t rejected Andrews’s Napue claims, and no reasonable jurist could disag ree that the state court c ould reject these claims based on the r easonable view of the facts offered by the state. See Maddox

, 3 6 6 F .3d at 999–1000 (holding that u nder AEDPA, st a t e court fact finding must be not merely wrong , bu t “ a ctually unreasonable ” a nd without support in the record to warrant habeas relief).

D

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

was destroy ed, e x c e pt for 50 fing erprint cards, one vag inal slide, one oral slide, and one anal slide. His petition to the California Supreme Court c laimed that the destruction of the evidence v iolated his due process rig hts u nder Trombetta a nd Arizona v. Y

oungblood

, a case that h eld that the g overnment’s “failure to pres e r ve potentially u seful evidence” before trial d o e s n ot v iolate a defendant’s due p rocess r ig hts unless th e criminal defendant can show that the g overnment acted in b ad fait h

. 4 8 8 U.S. 51, 5 8 (1988). As Andrews acknowledg es, t h e Supreme Court has since held that cases assessing p r e

conviction access to evidence, which wo u l d include Trombetta and Y

oungblood

, do not apply to cases where a defendant is denied access to evidence a fter being convicted. See Dist. Attorney’s Office for the T h i r d Judicial Dist. v

. O s b o r n e , 557 U.S. 5 2, 6 1–62, 68–69, 74 (2009); see als o Cress v

. Palme r , 4 8 4 F .3d 844, 853 (6th Cir. 2 007) (observing that “the Supreme Court has not clearly established that post-conviction destruction [ of evidence] is

a due process violation”). Therefore, the California Supreme Court d id not unreasonably apply Trombetta or Y oungblood

.A N D R E W S V

. D A

V I S 89

Andrews relies on Osborne to make a second claim, that the destruction of evidence violated h is due process and Ei gh th Amendment r ig hts. W e do not consi d e r w h e ther the state court’s decision was c o ntrary to or an unreasonable application o f O s b orne , because it w as decided after the California Supreme Court ruled, and thus is not clearly established precedent for purposes of § 2254( d ) (1). This theory was not briefed to the d i s t r ict c o urt, as the case was decided between completion of briefing and the c o urt’s decision. Andrews points to no clearly established p recedent in ex istence at the time the state court ruled that applies this principle, and therefore the d istrict court’s reje c t i o n of this claim was not debatable among fair minded jurists.

Andrews’s third claim is that the destruction of evidence deni e d h i m access to the c ourts to vindicate a n underly ing claim o f f

a c tual innocence. H owever, as the district court recog niz ed in rejecting this claim, he cites no Supreme Court
prec e d ent clearly establishing that destruction of evidence after a d e fendant is convicted violates a rig ht of access to the
courts. Christopher v

. Harbury

, on which Andrews relies, is

n o t on point: it held that a plaintiff’s c laim that g overnme n t

o f f i cials misled her in connection with her husband’ s disappearance did not state a constitution a l denial of access claim upon which r elief could be g r anted. 536 U.S. 4 03, 407, 415, 4 1 8–19 (2002). According ly

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

E

I n lig ht of the ab o v e, we conclude that no reasonable jurist would disag ree with the district court i n rejecting Andrews’s cumulative error claim. “[ T] h e fundamental question in determining w hether the combined effect of trialA N D R E W S V

. D A

V I S 90

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

errors rendered the criminal d efense ‘far less persuasive,’ a nd thereb y 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 C h a m b ers v

. Mississippi
, 410 U.S

. 2 8 4
, 294 (1973) and Brecht v

. Abrahamson

, 507 U.S. 619, 637 (1993)). W e ag ree with the district court that the California Su p r e me Court reasonably determined t h a t a n y errors, in the a g g reg ate, d id not have such a substantial or injurious effect on the verdict. The cumulative result of the disputable errors identified b y Andrews would not have made his defense sig nificantly more persuasive, since his d e fense focused on attacking the credibility of Sanders an d B rooks and challeng ing the fing erprint and palm print evidence. Reasonable jurists would not dispute the d istrict c ourt’s conclusion, so no COA is warranted.

Nor would any reasonable jurist d isag ree with the district court’s conclusion that the state c o urt did not err in rejecting An drews’s factual innocence claim. The state court could have reaso n a bly concluded that Andrews’s introduction o f slides showing that biolog ical markers found in the semen on B randon’s b ody had not been secreted by Andrews and may not have been secreted by B randon, described above, was insufficient to “g o b e y ond demonstrating doubt about his
g uilt [ to] affirmativ e ly prove that he is probably innocent.” See Carriger v. S

tewart , 132 F .3d 463, 476 (9th Ci r

. 1 997) (en banc) ( o bserving that the standard for establishing a freestanding c laim of a c tual i n n o c e nce is “‘ex traordinarily hig h,’ and that the showing [ for a successful c l a i m] would have to be ‘truly persuasive.’” (quoting H errera , 506 U.S. at 417) (O’Connor, J

. , concurring )). This claim does not merit a COA.A N D R E W S V

. D A

V I S 91

I n sum, because the dist r ict 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 rig ht” required for a COA to issue, and we deny h is request for one as to each of his uncertified claims.

V

Andrews contends that the district court e rred in deny ing his motion f

o r an evidentiary h earing on 16 c laims (Claims 1–8, 15, 19–23, 25, and 3 2), which include all but o ne of the claims on appeal here. 3 2 W e review a district court’s denial of an evidentiary hearing for an abuse of discretion, Sully v

. Ayers
, 725 F .3d 1057, 1 067 (9th Cir. 2013), and “may affirm the district court’s decision on a ny g round supported b y the record, even if it diffe rs f rom the district court’s rationale,” id

. (internal q

uotation marks omitted). I n Pinholster

, the S u p r e m e Court stated that “ r eview under § 2254(d)(1) i s l i m ited to the record that was before the state court that adjudicated the claim on the merits.” 563 U.S. at 181. “[ A] n

e v identiary hearing is pointless once the district court h a s d etermined that § 2254(d) p recludes habeas relief.” S u l l y , 725 F .3d at 1075; see Pinholster

, 563 U

. S

. at 203 n.20 (“B ecause Pinholster has fail e d to demonstrate that the adjudication of his claim based on the state-court record resulted in a decision ‘ contrary to’ or ‘i n v o lv[ ing ] an unreasonable a

pplication’ of federal law, a writ of h a b e a s corpus ‘shall n o t b e granted’ and our analy sis is at an end.” (alteration in orig inal)). According ly

, the distric t court did

3 2 He d id n o t seek an ev id en tiary h earin g o n Claim 2 6
, w h ich raised th e arg u m en t t

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

.A N D R E W S V

. D A

V I S 92

not err in deny ing Andrews’s motion for an e v i dentiary hearing

.

I n lig ht o f the foreg o in g , we REVERSE the district

c o urt’s g rant of relief, DI SMI SS the E ig hth Amend m e n t lethal injection claim as unripe, and DENY the petition for a COA of the uncertified claims.

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

MURGUI A, Circuit J udg e, dissenting in part:

I respectfully dissent. I would affirm t h e d istrict court’s order g ranting Andrews relief due to ineffective assistance o f counsel at the penalty phase of his trial.

Andrews was convicted of three heinous and appallin g murders. His p rior crimes were violent and antisocial. B ut due to defense counsel’s constitutionally inadequate penalty phase investig ation, the jur o rs who sentenced Andrews to death never knew tha t h e w a s subjected for two y ears as a y oung teenag er to brutal, inhumane, and deg rading abuse by his state custodians at Mt. Meig s, a seg reg ated reform school for “Neg ro children” in Alabama. Had counsel presented this readily available mitig ating evidence, t h ere is a reasonable probability

that at least o n e juror would have been moved to

ex e r cise mercy and spare Andrews’s life. Yet the California Supreme Court denied r elief in a 5-to-2 decision, concluding that counsel’s performance was n either deficient nor prejudicial. See In re Andrews , 52 P.3d 656 (Cal. 2002).A N D R E W S V

. D A

V I S 93

F undamentally

, it is u nconscionable to sentence a man to death absent consideration of mitig ating evidence of this
mag nitude, p articularly where counsel f ailed to pres e nt a ny meaning ful mitig ation e vidence. Our “u ltimate f ocus o f inquiry must be on the f

undamental fairness of the proceeding whose result is being challeng ed.” Strickland v. W a shington

, 4 6 6 U.S. 668, 696 (1984). Under the standard of revie w mandated by the Antiterrorism and E f fective De a th Penalty Act ( AEDP A )

, the “ pivotal question is whether the state court’s a

pplication of the Strickland standard was unreasonable.” Har r i n g t on v

. Richter

, 562 U.S. 86, 101 (2011)

. T he California Supreme Court’s determination that counsel’s performance w a s neither d eficient nor prejudicial is not just wrong , it is unreasona b le under the clearly estab l i shed law of Strickland and its prog eny

. T h us, even under the deferential standard o f the A EDPA, con ditional sentencing relief is warranted.

I

Andrews was sent to the Alabama I n d u s t r i al School for Neg ro Children, later known as Mt. Meig s, in the mid-1960s, after stealing a car. He had no prior history of violent crime. He entered the school when he was 1 4. H e left when he was 16.

The California judge w h o conducted the state court evidentiary hearing d escribe d Mt. Meig s as a “seg reg ated brutal institution near Montg o m e r y , Alabama.” The state court hearing judg e found that the c o n ditions at M t. Meig s

were horrific, and that Andrews was personally subjected to “beating s, brutality

, inadequate conditions an d s ex ual predators.” Due to “ his small stature and passive nature,” Andrews was “ the targ e t for older boy s’ depredations.” TheA N D R E W S V

. D A

V I S 94

California Supreme Court itself acknowledg e d that Andrews personally endured “appalling ” conditions a t Mt. Meig s. See Andrews , 52 P.3d

. at 660.

A t the state court evidentiary hearing ordered by t h e California Supreme C o u rt, several outside observers corroborated t h e a c c ounts of abuse a t Mt. Meig s. A United States f ederal judg e testified that Mt. Meig s, during the time Andrews was there, was a “penal colony ” that represented the “absolute denial of basic and fundamental human r i gh t s to [ African-American] c h ildren.” A f ormer state p robation officer described Mt. Mei gs a s a “ slave camp” f or children,

run by “illiterate overseers” who f orce d c h i l dren to work in the fields harvesting veg etables a nd picking c otton. T he children were “beaten all the time, ” s ometimes with broomsticks, m o p h a ndles, a nd fan belts, and often severely for minor infractions. Violence was pervasive and sex ual assaults were co m m on. The state probation officer testified
t h a t children committed to Mt. Meig s in the 1960s had no chance of rehabilitation and “came o ut much worse” than when th e y e n t ered. T he probation officer, who testified before Cong ress and state leg islatures about juvenile justice facilities a

round the country , stated that Mt. Me i gs w a s “by far, by far . . . the worst facility ” that he had seen.

Despite b e ing termed a “s c h ool,” Mt. Meig s provided little to no educatio n , c o u nseling

, or vocational prog r ams to the children in its custody

. S ee Andrews

, 52 P.3d a t 677 (Kennard, J
., disse n t i n g ). And in 1 971, an Alabama district
court o rdered ex tensive reforms at the institution after finding that “cor p o r al punishment was promiscuously employ e d b y the school’s p ersonnel” and ag reeing that “[ w] hen officials o f

a training school have condoned o r permitted the frequent a nd indiscriminate u s e of corporal punishment

. . . they haveA N D R E W S V

. D A

V I S 95

demonstrated the callous indifference to children’s safety which provides the basis for Eig h th A mendment liability ” a s cruel and unusual punishment. Order, Sto c k t o n v

. Alabama Industrial School

for Negro Children

, N o. 2834-N (N.D. Ala. J uly 23, 1971) (ado p ting p roposed finding s o f f act a nd conclusions of law); see also Crum v. State Training Sch. for Girls

, 413 F .2d 1348, 1 3 4 9 (5th Cir. 1969) (ordering the deseg reg ation of Mt. Meig s after finding that it w a s “inferior in every way ” to similar schools for white children).

Andrews was not spared. T h e s tate court record chronicles in e x c r

uciating ly vivid detail the abuse he personally suffered. W hen Andrews fail e d to pick enoug h cotton, left the g rass too h ig h in the f ields, or made a mistake in the dining hall, he was wh i p p e d wi t h a fan belt o r beaten with a stick. T h e record indicates that A ndrews was beaten

so severely the skin on his thig hs would “bust open.” On other occasions Andrews and other w ards at Mt. Meig s were forc e d t o p u l l down their pants, lie o n the g round on their stomachs, and place their penises in holes in the earth while they w ere whipped. The judg e who c onducted the state court

e v i d en t i a r y hearing fo u n d t h e e v i d e n c e o f a b u s e “compelling .”

T h e j ury that sentenced Andrews to death heard none o f this evidence. Yet the California Supreme Court con c l u d ed that counsel was not ineffective and, even if ineffective, there

was no reasonable p r o b a b ility of a different result at sentencing had the jury

heard the Mt. Meig s evidence.

That decision is fundamentall y and objectively unreasonable. Consideration of a defendant’s l i f e h istory is

a “constitutionally indispensable p art of the process o f inflicting the pen a l t y o f death.” S ee Eddings v. Oklahoma

,A N D R E W S V

. D A

V I S 96

455 U.S. 104, 112 (1982) (quo t i n g W oodson v. North Carolina

, 4 28 U.S. 280, 304 (1976) (plurality opinion)). Y et Andrews’s counsel presented almost no mitig ating evidence
at sentencing

. The Mt. Meig s evidence is not cumulative to any other evidence presented during the trial or penalty phase. The evidence was readily available. I ts sy mpathetic n ature is patently obvious. And w ithout c o nsideration o f the d eg rading abuse that Andrews endured, the jury that sentenced Andrews
to death could not fairly “g aug e his moral culpability .” See Porter v. McCollum

, 558 U.S. 3 0
, 41 ( 2009) (per curiam). Confidence in the sentencing outcome has been undermined. See Strickland , 466 U.S. at 694.

I reco gn i z e that our d eference to state court decisions is
at its z enith on federal habeas review. See generally Richter

, 562 U.S. at 1 04

. Under the AEDPA, federal courts are barred from g ranting habea s r e l i e f as to state court c onvictions if jurists o f r eason could debate the correctness of the state

c o u r t’s decision. See id. at 101. “A state court must be
gr a n ted a deference and latitude that are not in operation when the case involves r eview under the Strickland standard i t s e lf.” Id. F e deral habeas relief is w arranted, however, i f “the state court identif i e s the correct g overning leg al principle” f

rom the decisions o f the Supreme C o u rt but unreasonably applies that principl e to the facts of the petitio n e r’s case. W

illiams v. Taylor

, 529 U.S. 362, 413 (2000); see 2 8 U.S.C. § 2254(d)(1). T his case meets that string ent standard for c ollateral relief on federa l h a beas review.

I I

R e g a r d i n g S trickland ' s first prong , the Calif

o r n i a S u p r e m e Court unreasonably applied clearly established federal law inA N D R E W S V

. D A

V I S 97

concluding that c ou n s el ’s p erformance at the penalty phase was adequate.

“[ C] ounsel has a duty to make reasonabl e investig ations

or to make a reason able decision that makes particular investig ations unnecessary .” Strickland

, 466 U.S. at 691. W h en c ounsel have not fulfilled “their oblig ation to conduct

a thoroug h investig ation of the d efendant’s backg round,” their failure to identify a nd set forth substantial m i t i g ating evidence at sentencing cannot be justified as a “ tactical decision.” See W

il liams

, 529 U.S. a t 396 (citing 1 AB A Standards for Criminal J ustice 4 –4.1, commentary , p

. 4 –55 (2d ed. 1 980)); see a lso W iggins v. S

mi t h

, 5 3 9 U.S. 510, 521–22 (2003).

Andrews’s trial counsel conducted “virtually n o penalty phase investig ation” and “did not call a sing le witness a t the
pe n a lty phase.” Andrews

, 52 P.3d a t 676 (Kennard, J
., dissenting ). Nor did c ounsel ask their investig ators to d o any work on the penalty phase. I ndeed, A ndrews’s counsel made no serious effort to discover mitig ating evidence. 1

1 T h e m aj o rity cites trip s th at A n d rew s’ s co u n sel m ad e to A lab am a an d Flo rid a as ev id en c e t h a t th ey co n d u cted so m eth in g oth er th an a cu rso ry p en alty p h ase in v estig atio n

. Maj o rity at 25 n .3

. Yet b y th e law y ers’ o w n

acco u n t, th eir p en alty p h ase in v estig atio n co n sisted o f j u s t th ree activ ities. First, th e law

y ers sp en t a d ay i n th e Mo b ile co u rth o u se p u llin g reco rd s of A n d rew s’ s p r i o r c o n v ictio n s. O n e o f th e law y ers in itially testif

ied th at th eir trip t o A lab am a in clu d ed th ree d ay s o f in v estig atio n

. He ch an g ed th at acco u n t af

ter b ein g co n f

ro n ted w ith ev i d en ce th at th ey w ere in New Orlean s f o r m o st o f th e tim e, f

ly in g to Mo bile o n a Satu rd ay an d retu rn in g to New Orle an s on th e sam e d ay

. N ew Orlean s h ad n o relatio n to th e case; th e d ates o f th e trip “ co in cid ed ” w ith Mard i Gras celeb ratio n s. Seco n d

, o n ly af

t er A n d rew s ’ s f

i rst trial en d ed in a h u n g j u ry , th e law y ers in terv iew ed A n d rew s’ s m o t h er d u rin g a lay o v er in th e P en saco la airp o rt, af ter th ey brief

ly rev isited th e Mo b ile co ur t h o u se to ex am in e reco rd s ofA N D R E W S V

. D A

V I S 98

The state court judg e wh o p r e s ided over the evidentiary hearing ex pressly f

ound that d e fense counsel could have uncovered the Mt. Meig s evidence with “simple persistence” and standard investig ative techniques. See Andrews

, 52 P.3d
at 680 (Kennard, J
., dissenting ); see also id. at 681 ( n oting that routine leg al r esearch of p ublic 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, e x cused

counse l ’ s failure to discover the Mt. Meig s evidence f o r a numbe r o f unsupported and u nsupportable reasons, concluding that counsel’ s i nvestig ation was constitutionally

a dequate because: (1) A ndrews did not want his f a m i l y involved; (2) Andrews did n ot tell c ounsel about the appalling

c o n d i t i ons he endured while c onfined at Mt. Meig s; (3) the M t

. Meig s evidence could have backfired, for the evidence

A n d rew s’ s p rio r co n v ictio n s. T h e in terv iew d id n o t g o in to d etail ab o u t A n d rew s’ s b ack g ro u

n d, an d th e law

y ers d id n o t in q u ire ab o u t th e n am es

o r co n tact in f

o rm atio n o f relativ es o r an y b o d y else w

h o k n ew A n d rew s

an d co u ld sp eak to h is h isto ry

. T h ird

, th e law y ers asserted th at th ey sp en t

so m e tim e in Mo b ile du rin g o n e o f th eir tw o trip s u n su ccessf u lly “l o o k [in g ] f

or ev id en ce o f J esse’ s ch aracter an d g o o d deed s.” T h e law y ers, h o w ev er, did n o t in ter v iew a sin g le p erso n , co n tact an y of A n d rew s’ s f

am ily o r f rien d s, o r lo o k in to A n d rew s’ s in stitu t i on al h i s to ry

. Sim ilarly

, th e tw o d ef

en s e in v estig ato rs testif

ied th at th eir ef

f o rts w ere lim ite d t o th e g u ilt p h ase, an d th at n eith er o f A n d rew s’ s atto rn ey s ask ed th em t o d o a n

y in v estig atio n in to A n d rew s’ s b ack g ro u n d f o r a p o ssib le
p en alty p h ase. T h e C alif o rn ia Su p rem e Co u

rt’ s ref eree ch aracterized

co u n sel’ s “ actu al ef

f o rts” to g ath er m itig atin g ev id en ce f o r th e p en a l ty p h ase as “ lim ited ,” a ch aracterizatio n w h ich in lig h t o f th is reco rd is

u n d erstated , if

n o t o v erly

g en ero u s.A N D R E W S V

. D A

V I S 99

would h ave c ome primaril y from prisoners; (4) counsel’s limited investig at ion was r easonable because counsel had a reasonable strateg y a t the penalty phase; and (5) the Mt. Meig s evidence could have opened the door to more evidence
reg arding A ndrews’s prior acts of violence. N ot one of these rationales withstands scrutiny o r ex cuses counsel’s failure to perform a basic investig ation into his client’s life history

.
(1) Andrew s’s Ref

usal to Involve his F am ily.

The California Supreme Court f ound counse l ’ s limited investig ation adequate partly becaus e Andrews refused to involve his family at the p enalty phase. See Andrews

, 52 P.3d
at 668

. The California Supreme Court reasoned as follows: “Althoug h the referee found that co unsel could have discovered the mitig ating evidence presented at the r e ference hearing with ‘simple p ersistence,’ it is equally clear p etitioner insisted they n o t involve his family

. ‘As we have repeatedly

ex p lained, an attorney r epresenting a defendant at the penalty phase of a c apit al case is not required to present potentially mitig ating evidence over the d efendant’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 “reason a b leness of c ounsel’s actions may be determined o r substantially influenced by the defendant’s own statements o r actions.” See Strickland

, 466 U.S. a t 6 9 1. H o w e ver,

ex c u sing counsel’s failure to present the Mt. Meig s evidence based upo n Andrews’s refusal to involve his family is unreasonable on its face f or a simple reason: present i n g the Mt. Meig s evidence would not have required any involvement by Andr e w s’s family

. I nstead, as accounted herein, defense counsel could h ave introduced the Mt. Meig sA N D R E W S V

. D A

V I S 100

evidence by admitti n g p ublic records and by presenting the testimony of numerous ex p erts and respected observers.

The state court’s rationale is also unreasonable in lig h t o f the record before it. Andrews’s trial attorney testified a t the
state court evidentiary h earing that Andrews impo s e d no limitations on a penalty phase investig ation into his backg round, apart f

rom not wanting to have his family testify

. The state c o u rt hearing judg e found no obstacle to c alling witnesses who were not members of Andrews’s family

.

I t was therefore unreasonable for the California Supreme Court to ex cuse counsel’s failure to present the Mt. Meig s evidence b ased upon A ndrews’s refusal to involve his family

. See 28 U.S.C. § 2254(d)(2) (stating that federal habeas relief is w a r r a nted if the state court decision was based upon an unreasonable determ i n a tion of f acts in lig ht of the evidence presented in the state court p r oceeding ); cf. Porter
, 558 U.S.
at 4 0 (stating that couns el’s decision n ot to investig ate must reflect a “reasonable professional judg ment,” even when the client is “fatalistic or uncooperative”).

(2) Andrew s’s F ailure to Tell Counsel About His Tim e at Mt. Meigs

The California Supreme Cou r t also faulted Andrews for
not telling trial counsel about the a p p al l i ng conditions he endured while at Mt. Meig s. See Andrews

, 52 P.3d at 668 (“W hile counsel were a

ware petitioner had been incarcerated in the Alabama prison sy stem, he did not inform them of the conditions he endured there b y alerting them to the need for further investig ation of possible mitig ation.”). However, no evidence in the rec o r d sug g ests that counsel e ver asked Andrews any questions that would have elicited that history

.A N D R E W S V

. D A

V I S 101

See Andrews

, 52 P.3d at 681 ( Kennard, J

. , dissenting ) (stating Andrews “did not w i t hhold that information. His attorney s

never raised the subjec t

. ”). 2 Nor is there a ny evidence that Andrews, “descri bed by one o f his trial attorney s as ‘very cooperative,’ would have refused to discuss his reform school and prison ex periences in Alabama had he been asked about them.” Id.

Given th o se facts, the California Supreme Court was

unreas o n a b l e in placing the burden on Andrews to comprehend and offer mitig ation theories at the penalty phase of his o wn trial. Under clearly established Supreme Court law, leg al strateg y is the duty and domain of learned counsel; while a defendant “has the ultimate authority to make c ertain funda m e n t a l decisions reg arding the case, as to whether to plead g uilty

, w aive a jury

, testify in his or her own behalf, o r take an appeal,” leg al strateg y decisions are matte r s o f professional judg ment that fall within counsel’s domain and

a re the responsibility of counsel. See Jones v. B a rnes , 463 U.S. 745, 751 (1983). And, a s a c counted above, the most basic of investig a tions into Andrews’s life history would have uncovered the evidence of the abuse he suff e r e d

. Cf.

2 T h e m aj o rity g en erally an d rep eated l y accu ses th e d i ssen t o f en g ag in g in a d e n o v o rev iew w

h en ev alu atin g w

h eth er th e Calif

orn ia S u p rem e Co u rt’ s d eterm in atio n s w ere reaso n a b l e. Yet d ef eren ce d o es n o t

ev iscerate o u r du ty to ex am in e an d e v a l u ate t h e reco rd to d eterm in e th e

reaso n ab len e s s o f th e state co u rt’ s co n clu sio n s. Fu rth er, in en g ag in g in th at in q u iry

, it is en tirely pro p er to lo ok to a state co u rt d issen tin g o p in io n th at m ay sh ed lig h t on w

h eth er t h e s tate co u rt m aj o rity ’ s d eterm in atio n s

w ere reaso n ab le o r u n reaso n ab le in lig h t o f th e reco rd as a w h o l e. Facts

o n f ed eral h ab eas rev iew are n o t lim ited to o n l y th e f acts stated in th e state

su p rem e co u

rt’ s m aj o rity o p in io n

. Cf

. 2 8 U.S.C. § 2 2 5 4 (d )(2 ) (statin g th at f ed eral h ab eas relief is w arran ted if th e state co u rt d ecisio n “ w as b ased on

an u n reaso n ab le d eterm i n atio n o f t h e f acts in lig h t o f th e ev id en ce p resen t ed ”).A N D R E W S V

. D A

V I S 102

W il l i a ms , 529 U.S. at 3 95 (finding counsel deficient for failing to r e view defendant’s juvenile records that “ would have uncovered e x tensive r ecords graphically describing [ defendant’s] nig htmarish childhood”).

(3) The Reliance on P risoners to P resent t h e M t. Meigs Evidence

The California Supreme Court fur t h e r concluded it was reasonable f

or counsel not to present the Mt. Meig s evidence because such eviden ce c ould have backfired as it “ would

come primarily from the testimony of p et i tioner’s fellow prisoners, m a n y of whom were hardened criminals with serious felony

records.” See Andrews , 52 P.3d at 668–69. 3

However, the M t

. M eig s evidence was not dependent

u p on testimony from prisoners. At A ndrews’s state co u r t evidentiary hearing

, “a federal district judg e , a priest, a

c olleg e dean, a clinical psy cholog ist, a long time prison d o ctor, a nd the reg ional director of the F ederal B ureau of Detention, all . . . g ave powerfully effective testimony about the shocking conditions at” Mt. Meig s. Andrews

, 52 P.3d at 681 (Kennard, J
., dissenting ); e.g. , id. at 677 (di s c u s s ing

3 T h e Calif

o rn ia Su p rem e Co u rt’ s o pin i o n

o f ten co n f lates th e ev id en ce

o f ab u se th at A n d rew s su f f ered as a y o u th at Mt. Meig s w ith o th er p o ten ti a l m itig atin g ev id en ce h e co u l d h av e in tro d u ced reg ard in g th e ab u se h e su stain ed as an ad u lt i n th e A la b a m a p riso n sy stem

. B ecau s e

co u n s e l’ s f

ailu re to in v estig ate an d in tro d u ce th e Mt. Meig s ev id en ce, stan d in g alo n e, p lain ly ren dered co u n sel’ s p er fo r m a n ce d ef icien t, I o n ly ad d ress th e Mt. Meig s ev id en ce. Ho w ev er, th e d issen t in th e Ca l i fo r n i a Su p rem e Co u rt p ro v id e s a n a c cu rate an d th o ro u g h acco u n tin g o f th e ad d itio n al m i tig atin g ev id en ce th at co u n s e l c o u l d h av e in tro d u ced

. S ee An d rews , 5 2 P .3 d at 6 7 6

– 8 0 ( Ken n ard

, J
., d issen tin g ) (d escrib in g A n d rew s’ s tim e in Al ab am a p riso n s th at w ere later f o u n d to v io late th e Eig h th A m en d m en t’ s p ro h ib itio n ag ain st cru el an d u n u su al p u n ish m en t).A N D R E W S V

. D A

V I S 103

testimony of federal district c ourt jud ge I r a Dement, w ho referred to Mt. Meig s as a “penal colony for children”).

I n lig ht of the s t a te court record, it therefore was unreasonable for the California Supreme Cour t t o ex cuse counsel’s fail u re to p resent the Mt. Meig s e vidence on the basis that such evidence would have p rimarily depended upon the t e s t i m ony of prisoners. See 28 U.S.C. § 2254(d)(2); see also W iggins
, 539 U.S. at 528 (stating that “partial reliance on

a n erroneous factual finding ” can show “the unreasonab l e n e s s of the state court’s decision.”).

(4) Counsel’s P e nalty Strategy

The California Supreme Court ex pres s ly acknowledg ed that the record at the state court evidentiary h earing sug g ested that c ounsel could h ave conduc t e d a more thoroug h investig ation into Andrews’s backg round. See Andrews

, 52 P.3d a t 669. However, the California Supreme Court

u l t i m at el y c o n c l u d e d t h at counse l ’ s p e n a l t y p h a s e performance was adequate because counsel had decided upon

a r easonable strateg y , one that apparently did not invol v e o r

r e quire any meaning ful preliminary investig a tion int o Andrews’s social history

. According to the C a l ifornia Supreme Court, counsel presented a “ reasonable case for

s paring petitioner’s life” by (1) p ortray ing Andrews “ a s a follower rather than as violently antisocial”; and (2) arg

uing

a death sentence was not warranted because “others who h ad committed more heinous multiple murder s ” were not sentenced to death and Andrews’s co-defendant Sanders h ad received a lig

hter sentence. See id.

The California Supreme Court’s decision is unreasonable becaus e neither strateg y was supported by the evidenceA N D R E W S V

. D A

V I S 104

presented at trial. F urther, the state court’s decision i s unreasonable because it ig n or e s c o unsel’s “duty to make reasonable invest ig ations or to make a reasonable decision
t h a t m a k e s p a r t i c u l a r i n v e s t i g a t i o n s u n n e c e s s a r y

. ” Strickland , 466 U.S. at 691.

The evi d e nce as to the crimes of conviction which rend e re d Andrews d eath elig ible belied the depiction o f Andrews as a follower, rend e ring counsel’s p enalty 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 disastro u s strateg y , one no reasonably competent attorney would have used”). I n d e ed, “the only evidence before the jury was that petitioner w as the instig a t o r rather than a follower.” I

d

. 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 lig h ter sentence.” Id

.

Given the evidence a t trial, no r easonable arg ument can be made that counsel’s strateg y to depict Andrews as a follower was reas o nable, particularly when it was unsupported b y a basic investig ation into Andrews’s backg round to determine what other mitig ating evidence was available. S

ee Bobby v. Van Hook

, 130 S.Ct. 13, 17 ( 2 009) (stating that c ounsel must make “objectively reasonable choices”) (quoting Roe v. Flores-Ortega

, 528 U.S. 470, 479 (2000)); see W

iggins
, 539 U.S. at 52 7 (“ Strickland does not establish that a cursory investig ation automatically justifies a tactical decision with respect to sentencing strateg y

. ”).

The California Supreme Court c ited Burger v. Kemp
, 483 U.S. 776 (1987), a s supporting the p roposition that it is reasonable to foreg o mitig a ting evidence when it would openA N D R E W S V

. D A

V I S 105

the d oor to rebuttal e vidence which w ould contradict counsel’s strateg y of portray ing defendant as the follo w e r. See Andrews

, 52 P.3d at 673 (citing Burger
, 483 U .S. at 793). The California Supreme Court’s reliance on Burger is unreasonable fo r two reasons. F irst, in Burger
, defense counsel performed a robust initial mitig ati o n investig ation and spoke to a family member, a friend, and a psy cholog ist to learn a bout his client’s backg round. See Burger
, 483 U.S. at 790–91. B ased upon what B urg er’s counsel learned, counsel decided ag a inst pursuing a mitig ation case rely ing on that backg round, id. at 791, even thoug h it turned o ut that f urther investiga t ion would have produced a d ditional e vidence that defendant h a d “ an ex ceptionally unhappy and unstable childhood.” Id. at 789. As the Supreme Court concl u d ed

, counsel’s initial investig ation led h i m to make the “reasonable decision tha t h i s c lient’s interest would not be served by presenting this ty

pe of [ mitig ating ] evidence.” Id.
at 791. Th e f

acts of this case are very different. Unlike B urg er’s defense counsel, Andrews’s a t torney s never p erformed any meaning ful initial investig ation into their client’s backgr o und. A bsent such an investig ation, the lawy ers cannot be said to have m ade informed strateg ic choices about how to proceed in a p o ssible penalty p h ase o f trial.

Second and relatedly

, in Burger
, counse l ’ s d epiction o f his client as a follower was a reasonable strateg y for it was supported by the record

. See Burger
, 483 U.S. at 7 7 9 (noting primary evidence at trial showed that B urg er’s co-defendant Stevens “ was primarily responsible for the plan to kidnap the [ victim]

, the phy sical abuse of the victim, and the decision to kill him”). I n contrast, the evidence at Andrews’s trial plainly showed that Andrews was not a follower, but the main criminal a ctor. Thus, the California Supreme Court’sA N D R E W S V

. D A

V I S 106

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 a pplied Supreme Court law when it c ited Bell v. Cone
, 535 U.S. 685 (2002), to support its conclusion that counsel r easonably decided not to present evid e nce of A ndrews’s backg round. See Andrews

, 52 P.3d at 673 (citing Cone
, 5 3 5 U

. S. at 6 9 9

– 700). B efore noting that defense counsel saw t h e neig hborhood Andrews g rew up in and conside r ed it unimpressive because it was comparable to counsel’s own, the California Supreme Court cited Cone for the proposition that counsel may reasonably decide not to present backg r ound evidence when testimony about a defendant’s “normal y outh” mig ht, in the ey es of the jury

, be perceived neg atively and cut the other way

. See id

. H owever, a ll reasonable jurists would

a gr e e t h at the y e ars Andrews spent a t Mt. Meig s were the antithesi s of a “normal y outh.” The California Supreme Co u r t ’ s invocation of Cone
, while simultaneously ig noring that Andrews’s “y outh” included his ex perience a t Mt. Meig s,

was an objectively u nreasonable appli c ation of Supreme Court law. See W

iggins
, 539 U.S. at 526–27 (observing that the “strateg ic decision” o ffered “to justify counsel’s limited pursuit o f m itig ating evidence resembles

. . . a post h oc rationaliz ation of co u n sel’s conduct.”); cf. Porter
, 558 U.S.
at 43 (concluding that state supreme court was “unreasonable
to discount to irrelevance the ev i d e nce of Porter’s abusive childhood”).A N D R E W S V

. D A

V I S 107

(5) Opening the Door t o Andrew s’s P rior Acts of Violence.

F inally

, the California Supreme Court concluded counsel’s failu r e to present the Mt. Meig s evidence, a mong other mitig a tion evidence, was reasonable because such

e v i dence c ould have opened the door to more evide n c e reg arding Andrews’s p rior acts of v iolence. See Andrews

, 52 P.3d at 669 (stating t h at by not introducing the evidence, counsel “foreclosed t h e i n t r o d u c t i on of substantial
ag g r avating evidence in rebuttal or on cross-ex amination that could have u ndermined the defense b y depicting petitioner a s ag g r ess i v e and desensitiz ed to violence”). The California Supreme Court’s decision on this point is unreasonable for at least two reasons.

One
, t h e prosecutor from Andrews’s trial, who in the interim had b ecome a su p e r i o r court judg e, “testified that if
t h e d e f ense had presented evidence of the A labama prison conditions he probably w o uld n ot have called rebuttal witnesses to g ive details a bout petitioner’s Alabama crimes.” See Andrews , 52 P.3d at 682 (Kennard, J ., dissenting ). 4

4 It is also p ossib le, if n o t lik ely

, th at a Calif o rn ia co u rt w o u ld n o t h av e ad m i tted ev id en ce o f p rio r o f f en ses to reb u t th e m itig atin g e v i d e n c e of ch ild h o o d a b us e t h at A

n d rew s su f

f ered at Mt. Meig s. Cf. In re L u ca s , 9 4 P .3 d 4 77 , 5 10 (Cal. 2 0 0 4 ) (co n clu d in g , in a u n an im o u s d ecisio n , th at

m itig atin g ev id en ce sh o w in g “ t h at a d ef en d an t su f

f ered ab u se in ch ild h o o d
g en erally do es n ot o p e n th e d o o r to ev id en ce o f [a] d ef en d an t’ s p rio r crim es o r o th er m isco n d u ct”).A N D R E W S V

. D A

V I S 108

Two, e ven if the prosecutor h a d rebutted with more evidence reg arding Andrews’s prior violent crimes, 5 the jury already knew based upon Andrews’ s h einous crimes o f conviction t h a t h e was “ag g ressive and desensitiz ed to violence.” The jury also knew, by stipulation, of Andrews’s prior convictions for murder in 1967, a rmed robbery in 1968,
escape in 1969, and robbery in 1977 which the prosecution introduced as ag g ravating factors at the penalty phase. 6 More evidence reg arding Andrews’s prior convictions would have reinforced what the jury already knew, namely that Andrews committed heinous crimes and clea r l y w as “ag g ressive a nd desensitiz e d to violence.”

The clearly established law of Strickland itself sup p o rts the conclusion that the California Supreme Court’s decision

was unreasonable. I n Strickland

, it was r easonable for counsel not to present mitig ating evidence that “would barely ha v e altered the sentencing p rofile” and could have opened the door to prior convictions which counsel had successfully

m o v e d t o e x clude. 466 U .S. at 6 99–700. So too in Darden

5 T h e m aj o rity a c c u r a t e l y ob serv es th at th e ref eree an d th e C alif

o rn ia Su p rem e Co u rt m aj o rity co n clu d ed th at i f trial co u n sel h ad p resen ted th e Mt. Meig s ev id en ce, th e p ro secu t o r w o u ld h av e in tro du ced reb u ttal

ev id en ce. Maj o rity at 3 0

– 3 1 n .8

. Bu t th at f in d in g f ails to tak e in to

acco u n t th e p lain statem en t b y th e f o rm er p ro secu to r—later a state co u rt j u d g e—th at h e p ro b ab l y w o u ld n o t h av e resp o n d ed w ith reb u t t al ev id en ce. T h e ref eree an d Calif

o rn ia Su p rem e Co u rt d ecid ed n ot to tak e t h e f o rm er p ro secu to r at h is w o rd an d i n stead s p ecu lated ab o u t w h at th e p ro secu to r

w o u ld h av e d on e. T h at d e c i sio n w as u n reaso n ab l e. Cf

. 2 8 U.S.C. § 2 2 5 4(d )(2 ).

6 B y stip u latio n , th e j u ry k n ew th at A n drew s’ s 1 9 6 7 m u rd er co n v ictio n

w as f o r f elo n y m u rd er stem

m in g f ro m an in cid en t w

h en A n d rew s, t

h en 1 6
, a n d an acco m

plice ro b bed a g ro cery sto re an d th e acco m p lice ( n o t A n d rew s) sh o t an d k illed a sto re clerk d u rin g th e ro b b ery

.A N D R E W S V

. D A

V I S 109

v. W ainwright

, where c o unsel’s decision to present an alternate strateg y at sentenc i n g was reasonable because evide n ce reg a

rding defendant’s backg round could have opened the door to his prior convictions t h at had not previously been admitted in evidence. See 477 U.S. 168, 186 (1986).

I n c ontrast, in cases wh e r e a d efendant’s prior criminal history is known to the jury

, coun sel performs unreasonably in not presenting a rang e of pe r s u a s i v e mitig a ting evidence about the defendant’s backg round that “no other source h ad opened up.” See Rompilla v. Beard , 545 U.S. 374, 383, 390 (2005) ( finding counsel ineffective when counsel kn e w t h e prosecution would introduce at the penalty phase defendant’s “sig n ificant history ” of prior violent crimes, but counsel nevertheless failed to review the readily available pr i o r conviction file and present mitig ation evidence therefrom);

see also W

illiams

, 529 U.S. at 368–69, 395 (finding counsel’s performan c e d eficient when the jury knew of W illiams’s

ex tensive violent c r iminal history

, and counsel failed to

re v i ew juvenile records that would have uncovered g raphic mitig ating evidence of Williams’s “nig htmarish childhood”). At a m i nimum, counsel has a duty to conduct the necessary investig ation into h is client’s backg round t o learn the r ang e of mitig ating evidence available. See W i l l i a m s , 529 U.S. at 395–96.

B

I n sum, there was n o conceivable tactical reason either to foreg o the investig ation into Andrews ’ s backg round or to f o r eg o the p resentation of the compelling Mt. Meig s

e v i d e nce. Any competent attorney w ould have c onclude d that the Mt. Me i gs e v idence was the only evidence in thisA N D R E W S V

. D A

V I S 110

case that carried a substantial probability of a different
sentence. That evidence is critical pre c i s e l y because it provides the jury with a reason to ex t e nd mercy despite Andrews’s heinous crimes. As such, a ny competent attorney would have pres e n t e d the evidence, arg ued that the abuse Andre w s suffered as a y outh a t the hands of his state custodians ex plains why he is inured to v i o l ence, a nd urg ed the jurors to spare Andrews’s life on that g round. 7

The California Supreme Court r ecog niz ed that the United States Supreme Court held in W illiams that habeas relief was warranted when counsel failed at the penalty p hase to present to the jury evidence of petitioner’s “nig htmarish childhood,” model behavior while imprisoned, and borderline r etardation. See Andrews

, 5 2 P.3d at 674. The California Supreme Court, however, disting uished W illiams because, i n that c ase, counsel’s investig a tion was “essentially nonex istent due to an incorrect understanding of the law.” See id. (citing W illiams

, 529 U.S. at 395–96). The California Supreme Court is
correct that in W

i l l i a ms , counsel’s failure to investig ate was based a t least in part upon his incorrect understanding of the law. B ut surely no reasonable jurist w ould read W illiams as holding t h at a virtually nonex istent penalty phase investig ation is reasonable so long as it is not based upon a misunderstanding o f the law. I nde e d

, the United States

7 T h e Calif

o rn ia Su prem e Co u rt su gg ested th ere w as “ n o co m p ellin g

co n n ectio n ” b etw een th e u n

- p resen ted m itig atin g ev id en ce an d t h e crim es A n d rew s co m

m itted

. An d

rews , 5 2 P .3 d at 6 7 2 (q u otin g In re Ro ss , 8 9 2 P .2 d 1 2 8 7, 1 3 0 5 (Cal. 19 95 )). T o t h e ex ten t th e Calif

o rn i a S u p rem e Co u rt su g g e sted a cau sal n ex u s is req u ired b etw een m itig atin g ev id en ce

an d d ef en d an t’ s crim es, th e Calif o rn ia S u p r e m e Co u rt’ s d ecisio n w as

co n trary to Su

p rem e Co u rt law

. S

ee S kip p er v. So u th C

a ro lin a , 4 7 6 U .S. 1
, 4 (1 9 8 6 ) (n o tin g “ w ell- estab lish ed ” p rin cip le th at an y relev an t

m itig atin g ev id en ce m ay

b e co n sid ered ).A N D R E W S V

. D A

V I S 111

Supreme Court d o e s not read W illiams so n arrowly

. I n W iggins
, the Supre m e Court underscored that in W illiams it held the “failure to uncover and present voluminous

m i t i g ating evidence at sentencing could not be justified as a tactical decision

. . . because counsel had not ‘fulfill[ ed] their oblig ation to conduct a thoroug h investig ation of the d e f endant' s backg round.’” See W iggins
, 539 U.S. at 52 2 (quoting W

illiams , 529 U.S. at 396).

The duty to conduct a thoroug h investig ation of a capital defendant’s backg round is imposed on counsel to prevent this

v e r y c ircumstance: a man sentenced to death without consideration of non-cumulative, readily available personal history evidence o f comp e l l i n g mitig ating value. The California Supreme Court unreason ably applied clearly established federal law when it c o n cluded that defense counsel’s performance was c onstitutionally adequate in this

case.

I I I

Under Strickland ’s second prong , the California Supreme Court majority c oncluded t h at even if Andrews’s counsel performed inadequately

, Andrews suffered no prejudice from the omission of the Mt. Meig s evidence at sentencing

. That conclusion too is base d u pon a n objectively unreasonable application of Strickland

and its prog e ny

.

U n d er Strickland

, a c a

pital defendant suffers prejudic e from coun sel’s deficient performance when “there is a reasonable probability that, absent the e r rors [ o f counsel]

, the
sentencer

. . . would have concluded tha t the balance o f
ag g r avating and mitig ating circumstances di d not warrant death.” Strickland

, 4 6 6 U.S. at 695. As Strickland clarified,A N D R E W S V

. D A

V I S 112

“[ a] reasonable pro b ability is a probability sufficient to undermine c onfidence in the outcome,” not a probability that the result “more likely than n ot” would have b een different. Id

. at 693–94. F or a state court considering a habeas petition asserting ineffective assistance of counsel, t h e inquiry is straig htforward: counsel’s deficient performance p rejudiced the petitioner if he can show “a reasonable probability that at least one juror” would have recommended a sentence of life instead of death. W

iggins
, 5 39 U. S. at 537. F or a federal
court reviewing a habeas p etition filed after th e A EDPA’s
passag e, the determinative questi o n i s whether the state court’s finding that petitioner was not p rejudiced was not just
error, b ut “was contrary to, or involve d an unreasonable application of, clearly e stablished F ederal law as determined by the Supreme Court o f the U nited S t ates.” 28 U .S.C. § 2 2 5 4(d)(1); see Cullen v

. Pinholster

, 563 U.S. 170, 1 8 1 (2011).

I n this case, the California Supreme Court concluded there w as n o reasonable probability o f a life sentence even if counsel had pr e s ented the mitig ating evidence reg arding Andrews’s b ackg round. Unlike the majority

, I would hold that such a conclusion constitutes an unreasonable a p p l i c a tion of federal law that was clearly establishe d a t the time of the state court’s decision.

A

C o nsideration of the defendant’s life history is a “constitutionally indispensable p art of the p r ocess o f inflictin g t h e p enalty of death.” E ddings

, 455 U.S. at 112. The abuse that Andrews suffered at Mt. Meig s epitomiz es the “kind of troubled history ” that the Supreme Court repeatedly has “declared relevant t o a ssessing a defendant’s moralA N D R E W S V

. D A

V I S 113

culpability .” W

iggins
, 5 39 U.S. at 5 35; see also id. at 535–36 ( holding a d ifferent sentencing outcome was reasonab l y proba b l e had defense counsel presented evidence that W ig g ins suff

e r e d early privation and abuse, a s well a s phy sical tormen t , sex ual molestation, and r epeated rape in foster care). Such e vidence is “relevant b ecause of the belief, long held by t h i s society

, that defendants who commit criminal acts that are a ttributable to a d i sadvantag ed backg roun d

, o r to emotional and mental problems, may be less culpable t h an defendants who have no such excuse

. ” Boyde v. California

, 4 9 4 U.S. 370, 3 82 (1990) (internal quotations marks omitted).

W ithout consideration o f t he compelling and readily available Mt. Meig s evidence, Andrews’s moral culpability could not be fairly g aug ed at sentencing

. S e e Porter
, 5 5 8 U.S. a t 41. I ndeed, the “ benchmark” for assessing a n ineffective assistance c laim is “ whether c ounsel’s conduct so undermined the proper functioning of the adversarial process that t he trial cannot be relied on as having produced a just result.” S trickland

, 466 U.S. at 686. Here, counsel’s failure
to pre s e n t the evidence of severe abuse that Andrews suffered, com b i n ed with counsel’s failure to present any substantial mitig ation case at sentencing

, depri v ed 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. Meig s evidence, there is no reasonable probability that e ven one juror would have recommended a sentence of life instead of death.

The majority d isag rees a nd observes that the Supreme Court “has found a reasonable probability o f a different
outcom e w h e n scant and weak a g g ravating evidence couldA N D R E W S V

. D A

V I S 114

have b een presented in rebuttal to strong ly m i t i ga ting evidence.” Majority at 47–47 ( c iting W iggins
, 539 U.S. at 534–36, 5 3 7

– 3 8 )

. Yet the Supreme Court h as a lso found a reasonable probability o f a different o utcome when
ag g r avating evidence is substantial a n d mitig ating evidence is compelling

. See W

illia ms , 529 U.S. at 398; Porter
, 558 U.S. at 40–44. I ndeed, at the time of th e C a l i f o rnia Supreme Court’s decision in this case, no deci s i o n b y the United States Supreme Court had e x cused a failure to present a compelling mitig ation case where one was available.

As the majority recog niz es, W illiams and Porter a

re particularly instructive. I n W illiams

, the Supreme Court h eld there was a reasona

b l e p robability of a different result at sentencing if counsel h ad presented e v i dence e ither o f defendant’s “nig htmarish childhood” or his d iminished intellectual ability

. See W illiams

, 529 U.S. at 398. Notably

, un l i k e in this case, W illiams’s counsel actually presented mitig ating evidence, including testimony from two neig hbors

a n d W illiams’s mother, and “a taped ex cerpt of a statement by a psy chiatrist.” See id

. a t 369. Contrary to the majority ’s description o f the case, the ag g r avating factors in W i l l i a m s

were severe. Two prosecution e x pert w itnesses test i f i ed at sentencing “that there was a ‘ hig h probability ’ that W illiams would pose a serious continuing threat to society .” S ee id

. at 368–69. And the jury heard e vidence that in the months a fter the murder for which W illiams was s e n tenced to death, “W illiams savag ely beat an elderly woman, stole two cars, set fire to a h ome, stabbed a man during a robbery

, set fire to the city jail, and confessed to having strong urg es to choke other inmates and to break a f ellow p risoner’s jaw.” I d

. at 418 (Reh n q u ist, C.J
., concurring in part and dissenting in part) (quoting W

illiams v. Taylor

, 163 F .3d 860, 868 (4th Cir. 1998), rev’d

, 529 U.S. 362 (2000)); see id. at 368 ( providingA N D R E W S V

. D A

V I S 115

the majority ’s descripti o n of the ag g ravating evidence, including that Williams: had c ommitted “two separate violent assaults on elderly victims,” specifically setting a fire outside

one elderly victim’s h ouse before attacking and robbing him, and lea v ing the other elderly victim, a woman, in a “veg etative state” ; w a s c o n victed of arson for the fire he set in the jail while awaiting trial; and had prior convictions for armed robbery , burg lary , and g rand larceny ).

Despite these strong a g g ravating factors, t h e Supreme Court held that W illiams was prej u d iced by his counsel’s failure to introduce the undiscovered mitig ation evidence. I m p ortantly for this case, the Court stated that the evide n c e reg arding W illiams’s “nig htmarish c hildhood” would have been enoug h

, standing alone, to sustain a finding of prejudice. As the Court ex pressly held, “the g raphic description o f W illiams’ childhood

, filled w ith abuse a nd privation, or the reality that he was ‘borderline mentally r etarded,’ mig h t w ell have influenced the jury ’s appraisal of his moral c ulpability

. ” See id. at 398 (emphasis added).

W illiams plainly s u p p orts the conclusion that the California Supreme Court unreasonably applied clearl y

e s tablished federal law in concluding that Andrews was n o t prejudiced by his counsel’s f ailure to i n t roduce evidence o f the ex treme brutality

that Andrews suffered as a y outh. The total evidence in ag g ravation, that w hich was admit t e d a nd that which may have come in as rebuttal evidence concerning Andrews’s prior violent crimes ( w hich the p rosecutor testified at the state court hearing he probably would not have introduced), was certainly no g reater than the a ggravating evidence in W

illiams

. Similar to W

illiams

, th e overlooked mitig ating e vidence in Andrews’s c ase includes severe a nd sustained phy sical, sex u al, and p sy cholog ical abuse.A N D R E W S V

. D A

V I S 116

Andrews’s ove r looked mitig ating evidence is made even strong er by t h e f

a c t that the abuse at issue w as inflicted in larg e p art at the hands of his state custodians and was broadly corroborated by r e s pected authorities, a s previously accounted. 8

The Supreme Court’s d ecision in Porter also demonstrates the unreasonableness of t h e California Supreme Court’s conclusion that Andrews was not prejudiced. Althoug h the Supreme C ourt decided Porter after the California Supreme Court denied A ndrews’s ineffect i v e assistance claim, Porter is still r elevant to assessing prejudice under 28 U.S.C. § 2254 ( d). 9 See W iggins
, 539 U.S. at 522

8 T h e Su p rem e Co u rt later stated th at W illia ms o f f ers “ n o g u id an ce w i th
resp ect to w

h eth er a state co u rt h as u n reaso n ab ly d e t e rm in ed th at p rej u d ice is l a c k i n g ” b ecau se A EDP A d ef eren ce w as n o t ap p lied to th e S trickla n d prej u dice q u estio n in W i llia ms

. S

ee Cu llen v. Pin h o l

s t e r , 1 3 1 S.Ct. 1 3 8 8, 14 1 0

– 11 (2 0 1 1 ) (citin g W illia m s , 5 2 9 U

. S

. a t 3 9 5

– 9 7 ); bu t

see W illia ms , 52 9 U.S. at 4 1 5

– 1 6 (O’ Co n n o r, J
., co n cu rrin g ) (“ I also ag ree

w ith t h e Co u rt th at, to th e ex ten t th e Virg in i a Su p rem e Co u rt d id ap p ly S trickla n d

, its ap p licatio n w as u n reaso n ab le”). In an y ev en t, W illia ms w as d ecid ed tw o y ears b ef

o re th e Calif

o rn ia Su p rem e Co u rt d en ied A n d rew s’ s h ab eas p etitio n

. T h u s, at th e t im e th e Calif o rn ia Su p rem e Co u

rt d ecid ed A n d rew s’ s in ef

f ectiv e assistan ce claim

, W illia ms w as h ig h ly relev an t f or d eterm in in g w

h at o m itted m itig at i n g ev id en ce is p rej u d icial u n der S trickla n d

. See W

illia ms , 5 2 9 U.S. at 3 9 8 (“ [T ]h e g rap h ic d escrip tio n of W illiam s’ ch ild h o o d

, f

illed w ith ab u se an d p riv atio n , o r th e reality th at h e

w as ‘ b o rd erlin e m en tally retard ed ,’ m ig h t w ell h av e in f lu en ced th e j u ry ’ s ap p rais a l of h is m o ral cu lp ab ility .”); see a lso id

. at 4 1 5 (O’ Co n n o r, J
., co n cu rrin g ) (co n clu d in g th at W illiam s w as p rej u d iced b y co u n sel’ s f ailu re to p resen t su

b stan ti a l m itig atin g ev id en ce, in clu d i n g ev id en ce o f h is

“ n ig h t m arish ch ild h o od ,” an d th at th e Virg in ia Su p rem e Co u r t w as

u n reaso n ab le in co n clu din g o th erw ise).

9 T h e m aj o rity ack

n o w led g es th at Po rter is relev an t to d ete r m i n i ng

w h eth er th e Calif

o r n i a Su p rem e Co u rt u n

reaso n ab ly ap p lied S t

rickla n d

. Maj o rity at 59 (“ A lth o u g h Po rter w as d ecid e d y ears af t er th e C alif

o rn iaA N D R E W S V

. D A

V I S 117

(approving reliance o n S upreme Court o pinions issued a fter the state court’s decision, when the merits of the claim were
g overned by

the holding s of Strickland )

.

I n P orter , due to coun s e l ’ s failure to adequately investig ate Porter’s backg round, the jury that sentenced him
to death neve r k n e w t hat he had been a bused as a child a

nd

was a d e co rated Korean War veteran suffering from posttraumatic stress. See Porter
, 558 U.S. at 40–4 4

. The Supreme Court held that the F lorida Supre m e Court was unreasonable in concluding that Po r ter had n ot 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 “accurately g aug e” the defendant’s “moral culpability ” and habeas relief was warranted because c onfidence in the sentencing outcome h ad been undermined. See id

. at 41; see also Rompilla

, 545 U.S.
at 3 93 (stating that the relevant test is n ot w h e t h e r the jury

, had it heard the omitted mitig ating evidence, could still have returned a verdict of death). 1 0

S u p r e m e Co u rt’ s o p in io n in th is case, w e g iv e its p rej u d ice an aly s is

car e f u l c o n s i d e r a t i o n , b e cau s e Po rter co n sid ered p rej u d i ce u n d er A EDP A
, an d th eref

o re p ro v id es directio n f or determ in in g w

h at co n s t i t u tes an

u n reaso n a b l e ap p licatio n o f th e p rej u d ice p ro n g o f Strickla nd u n der A EDP A .”).

10 T h e m aj o rity

criticizes m y

ref eren ce to Ro m

p illa

, in sistin g Ro mp i lla

“ do [es] n o t pro v id e an y g u id an ce o n th e issu e b ef o re u s, w h eth er a state

co u rt’ s determ in atio n th at co u n sel’ s d ef icien cy w as n o t p rej u dicial w as an

u n reas o n a b l e a p p l i c a t i o n o f clearly estab lish ed Su p rem e C o u rt p reced en t.” Maj o rity at 6 5 n .2 4

. B u t I cite Ro mp i lla f o r th e w ell- estab lish ed p rin cip le th at th e Strickla nd test f

o r p rej u dice d o es n o t tu rn o n w h eth er th e j u ry still

c o u l d h av e retu rn ed a death sen ten ce ev en if it h ad h eard th e m itig a t i ng

ev id en ce. S

ee S t rickla n d

, 4 66 U.S. at 6 94 (“ T h e d ef en d an t m u st sh o w th at th ere is a reaso n ab le pro b ab ility th at, b u t fo r co u n sel’ s u n

p ro f essio n alA N D R E W S V

. D A

V I S 118

As in W

illiams

, the Supreme Court in Porter affirmed that

a strong case in ag g ravation does not preclude the conclusion that a state court was unreasonable in deny ing h a beas relief. Porter stood c onvict e d o f two murders and faced considerable evidence of premeditation, but t h e Supreme Court nonetheless h e ld it was objectively unreasonable for the F lorida Supre m e Court to conclude that Porter had not been prejudiced a t s e ntencing by the omission of the mitig ating evidence. P o r t e r , 558 U.S. at 31. The same conclusion

a p p lies in Andrews’s case. Despite strong ag g ravating evidence, there is a reasonable p robability of a different result
at sentencing if the jury had heard the powe r fu l e v idence o f the abuse Andrews suffered as a y outh. I t is unreasonable to conclude otherwise.

The majority disag r ees. Rely ing on the Supreme Court’s opinion in W

oodford v. Visciotti
, 537 U.S. 19 (2002), decided after the California Supreme Court’s decision in this c ase, the majority insists it was not unreasonable to hold that Andrews

s u f f e r ed no prejudice. Majority at 63–64. The majority is mistaken. The balance of mitig ating and ag g ravating f actors in Visciotti was dramatically different from the balance in Andrews

. I n Visciotti
, the p otential mitig ating e v i d ence at issue was ex pert testimony ad d r e ssing the psy cholog ical abuse that Visciotti suffered due to being r aised in a dy sfunctional f

amily

. See Visciotti
, 537 U.S. at 26. Visciotti involved no alleg ations of ph y s i c al or sex ual abuse, and the
p sy cholog ical abuse failed to approach what Andrews

ex p erienced at Mt. Meig s. Th e ag g ravating evidence in

erro rs, th e res u lt o f th e p ro ceed in g w o u ld h av e b een d if f eren t. A

reaso n ab le pro b ab ility i s a p ro bab ility s u f f icien t to u n d erm in e co n f

id en ce in th e o u tco m e.”). T h e test i s n o t w h eth er co u n sel’ s in ad eq u ate p erf o rm an ce “ m o re lik ely

th an n o t altered th e o u tco m e in th e case.” S ee id

. at 6 9 3

.A N D R E W S V

. D A

V I S 119

Visciotti included a p rior o ffense in which Visciotti stabbed “a preg nant woman as she lay in bed try ing to protect her unbor n b a b y

. ” See id. Given the strong evidence in
ag g r avation and the relatively weak mitig ating evidence, the Supreme Court c oncluded it w as not unreasonable for the California Supreme Court to conclude that Visciotti was not prejudiced by counsel’s failure to introduce the dy sfunctional family evide n ce

. I

d

. at 2 6–27. I n contrast, the facts o f Andrews’s c a se present a very different balance of f actors and compel a d ifferent result. The majority ’s contention that the Mt. Meig s evidence at most c a rries o nly the “m e re possibility of a different outcome,” Majorit y at 6 6, g rossly underestimates the mitig ating f orce of that evidence. The Mt. Meig s mitig ating evidence in Andre ws is ex traordinarily strong . The majority ’ s reliance on V isciotti is unfounded.

B

The Ca l i f

ornia Supreme Court also reasoned that Andrews was not prejudiced because the Mt. Meig s evidence, in addition to evidence of abuse Andrews suffered as an adult in the Alabama prison sy stem, i s “ not conclusively a nd unambig uously m itig ating ” but “could equally have proved

a double-edg ed sword.” See A n d r ews , 52 P.3d at 670–71. Accord i n g t o the California Supreme Court, “[ r] ather than
eng endering sy

mpathy ” such evidence “could well ha ve reinforced an impression of him as a person who had become desensitiz e d and inured to violence and disrespect f or the l a w ” or could have confirmed A ndrews had “ an antisocia l personality

. ” See id. at 671. That c onclusion is unreasonable.

The jury already k

new from Andrews’s heinous crimes o f conviction and from the stipulated p rior convictions that Andrews was antisocial a n d “had become desensitiz e d a ndA N D R E W S V

. D A

V I S 120

inured to v iolence a n d d i srespect for the law.” No person considering Andrews’s crimes of conviction would conclude otherwise

. B u t the jurors knew absolutely n othing about Andrews’s p ast that mig ht ex plain the person he had become and provide a basis for the ex ercise of mercy

.

The severe and sustained abuse that Andrews suffered at Mt. Meig s provides such evidence. The California Supreme Court ag reed the evidence presented at the state court h earing “leaves no doubt” A ndrews “ endured h orrifically demeaning and deg rading circumstances.” S ee Andrews

, 52 P.3d at 670. Yet the jury that sentenced A ndrews to death knew n o t h i ng about those circumstan c e s

. Had the jury heard that f or two
y ears as a teenag er An d r ew s w as subjected to brutal, inhum an e , an d deg rading abuse by his state custodians a t a seg reg ated reform school for African-American children in Alabama in the 1960 s , there is a r e a sonable probability that
at least one juror would have been sway ed to ex ercise mercy

a n d spare Andrews’s life. There is “too much mitig ating evidence that was n ot presented to now b e ig nored.” Porter
, 558 U.S. at 44 (interna l q uotation marks omitted). No reasonable person would conclude otherwise.

The prejudice to Andrews caused by the omission of the Mt. Meig s evidence a t sentencing is compounded by the fact that counsel presented no sy mpathetic mitig ating evidence at Andrews’s s e n t encing

. I ndeed, at the p enalty phase o f Andrews’s trial, counsel called no w itnesses and offered no stateme n t s from psy cholog ists, f amily

, or friends. I n short, defe n se counsel presented almost nothing to counter the prosecution’s portray al of their client. The clearly e stablished law of Strickland recog niz es that some errors by c ounsel will h a v e “ p ervasive effect

. . . altering the entire evidentiar yA N D R E W S V

. D A

V I S 121

picture.” See Stri c k l a n d

, 466 U.S. at 6 95–96. Andrews is such a case.

I t is unconscionable that A ndrews should be sentenced to death without c o n s i d eration of the eg reg ious abuse that he suffered at Mt. Meig s. Had counsel presented the Mt. Meig s evidence at sentencing

, it is reasonably probable that at least

one juror w ould have b e e n moved to ex ercise mercy a nd

s p a r e Andrews’s life. I t is objectively unreasonable, and a leg al fiction, to conclude otherwise.

I V

The district court’s conditional g rant of sentencing relief should be affirmed. I

respectfully dissent.