and Submitted En Banc September 25, 2018 Pasadena, California
from the United States District Court for the Central
District of California, No. 2:02-CV-08969-R Manuel L. Real,
District Judge, Presiding
Michael Burt (argued), Law Office of Michael Burt, San
Francisco, California, for
Xiomara Costello (argued), Keith H. Borjon, and James William
Bilderback II, Supervising Deputy Attorneys General; A. Scott
Hayward, Sarah J. Farhat, and Shira Siegle Markovich, Deputy
Attorneys General; Michael J. Mongan, Deputy Solicitor
General; Lance E. Winters and Ronald S. Matthias, Senior
Assistant Attorneys General; Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General; Edward C. DuMont,
Solicitor General; Xavier Becerra, Attorney General; Office
of the Attorney General, Los Angeles, California; for
Before: Sidney R. Thomas, Chief Judge, and Ronald M. Gould,
Marsha S. Berzon, Johnnie B. Rawlinson, Jay S. Bybee, N.
Randy Smith, Mary H. Murguia, Jacqueline H. Nguyen, Paul J.
Watford, John B. Owens and Michelle T. Friedland, Circuit
appeal and cross-appeal arising from Jesse Andrews's
habeas corpus petition challenging his California conviction
and death sentence on three counts of murder, the en banc
court affirmed the district court's grant of sentencing
relief based on ineffective assistance of counsel, dismissed
as unripe Andrews's Eighth Amendment claim challenging
California's lethal-injection protocol, and denied a
request to certify for appeal Andrews's uncertified
the performance prong in Strickland v. Washington,
466 U.S. 668 (1984), the en banc court held that the
California Supreme Court unreasonably applied clearly
established federal law in concluding that Andrews received
constitutionally adequate counsel at the penalty phase. The
en banc court held that the only reasonable interpretation of
Supreme Court precedent and the facts of this case lead to
the following conclusions: (1) that Andrews's attorneys
failed in their duty to undertake a reasonable investigation
at the penalty phase; (2) that their choices cannot be
rationalized as "strategic" or
"tactical;" and (3) that any reasonably competent
attorney would have discovered and introduced substantial and
compelling mitigating evidence that existed. The en banc
court held that no fair-minded jurist would conclude
Strickland's prejudice prong, the en banc court
held that the California Supreme Court's conclusion- that
Andrews suffered no prejudice from the omission of the
substantial and compelling evidence that his attorneys should
have introduced but didn't-was objectively unreasonable.
The en banc court held that, without having heard the
substantial and compelling mitigating evidence, the jury
could not fairly gauge Andrews's moral culpability at
sentencing, and that no fair-minded jurist would disagree.
in part and dissenting in part, Judge N.R. Smith, joined by
Judges Rawlinson and Owens, wrote that the majority
essentially evaluated the merits de novo rather than
with the appropriate deference under the Antiterrorism and
Effective Death Penalty Act; and that the California Supreme
Court reasonably concluded that Andrews was not prejudiced by
his counsel's deficient performance during sentencing.
MURGUIA, CIRCUIT JUDGE:
Andrews was sentenced to death by a jury that only knew the
State's view of him. He was, according to the prosecutor,
a "vicious animal." The jury, however, did not
know-because it was never told-anything about Andrews's
upbringing in a segregated and impoverished area of Mobile,
Alabama. Andrews's counsel did not tell the jury that
Andrews, as a child, had been confined at the Alabama
Industrial School for Negro Children known as "Mt.
Meigs"-a segregated, state-run institution that, in the
words of one witness, was a "slave camp for
children." The jury was not told that, during these
formative years, Andrews was repeatedly subject to brutal
abuse at the hands of his state custodians. It was not told
that, from the age of fourteen, Andrews was in the custody of
Alabama state institutions so degrading that federal courts
later found the conditions in those institutions violated the
Eighth Amendment's prohibition on cruel and unusual
punishment. Nor was the jury told that, in the view of mental
health experts, the severe abuse Andrews suffered made his
subsequent criminal behavior understandable and predictable.
short, Andrews's counsel did nothing to counterbalance
the prosecutor's view of their client or to portray
Andrews as a human being, albeit one who had committed
violent crimes. In fact, Andrews's counsel introduced
almost no evidence in mitigation at the penalty phase.
Despite this record of deficient representation, the
California Supreme Court concluded that, under Strickland
v. Washington, 466 U.S. 668 (1984), Andrews received
constitutionally adequate representation at the penalty
phase. That decision is fundamentally and objectively
it is unconscionable and unreasonable to uphold a sentence of
death when the jury never heard readily available mitigating
evidence of the magnitude present here. This is especially so
when, as here, counsel failed to present any
meaningful evidence in mitigation. Counsel's performance
at the penalty phase of Andrews's trial was so deficient
that it failed to "fulfill the role in the adversary
process that the [Sixth] Amendment envisions,"
undermining all confidence in the sentence. Id. at
sure, our deference to state court decisions is at its zenith
on federal habeas review. See Harrington v. Richter,
562 U.S. 86, 105 (2011). Indeed, federal courts are barred
from granting habeas relief as to state court convictions if
jurists of reason could debate the correctness of the state
court's decision, and a "state court must be granted
a deference and latitude that are not in operation when the
case involves review under the Strickland standard
itself." Id. at 101. That deference, however,
"does not by definition preclude relief."
Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 340 (2003).
case presents the type of "extreme malfunction"
in the operation of a state's criminal justice system
that justifies the intervention of a federal habeas court.
Richter, 562 U.S. at 102 (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,
concurring in judgment)). We therefore affirm the district
court's grant of sentencing relief based on Andrews's
ineffective assistance of counsel claim. The California
Supreme Court unreasonably applied clearly established
federal law when it concluded that Andrews received
constitutionally adequate representation at the penalty phase
of his trial. Unless the State elects to reprosecute the
penalty phase, the writ will issue.
facts of Andrews's crimes inspire little sympathy. In
December 1979, police were called to a Los Angeles apartment,
where officers located the bodies of three murder
victims-Preston Wheeler, Patrice Brandon, and Ronald Chism.
In re Andrews, 52 P.3d 656, 657 (Cal. 2002). Police
later arrested Charles Sanders in connection with the crime.
People v. Andrews, 776 P.2d 285, 288 (Cal. 1989).
Sanders entered a plea agreement and gave a statement
describing the murders and implicating Andrews. Id.
at 288-89. Andrews was arrested and charged in June 1982.
Id. at 295-96.
evidence presented at trial connecting Andrews to the murders
primarily consisted of Sanders's testimony, the testimony
of another witness, and fingerprint and palm print evidence.
In re Andrews, 52 P.3d at 658. Sanders testified
that he and Andrews devised a plan to rob Wheeler, a drug
dealer. Id. After entering Wheeler's apartment
and smoking marijuana with him, Sanders and Andrews drew
their weapons, tied up Wheeler and Brandon, and began to
search the apartment for drugs and money. Id. When
their search proved unfruitful, Andrews said that he would
"make Brandon talk," and he "dragged her into
the kitchen and closed the door." Id. (quoting
Andrews, 776 P.2d at 288). Sanders testified that he
heard Andrews "hitting Brandon and later heard sounds as
though they were having sex." Id.
Andrews came out of the kitchen, Sanders began searching for
drugs in the attic. Id. Sanders testified that he
then heard two shots and, when he came down from the attic,
Andrews told him he had shot Wheeler, at close range, because
Wheeler had tried to escape. Id. Sanders also
testified that Andrews told him he had killed Brandon before
leaving the kitchen. Id.
Sanders and Andrews were cleaning the apartment, Chism
"knocked on the door and asked if everything was all
right." Id. According to Sanders, Andrews
"then hit Chism on the head, tied him up, and took him
into the bathroom," where Andrews strangled him.
Id. (internal quotation mark omitted). Sanders then
saw Andrews reenter the kitchen and choke Brandon with a wire
clothes hanger. Id.
defense's guilt-phase strategy consisted primarily of
"attempts to undermine Sanders's credibility."
Andrews, 776 P.2d at 289. Two inmates who
had been in jail with Sanders testified that he made
statements suggesting that he planned to fabricate a story to
shift the blame for the murders to someone else. Id.
Andrews did not testify. Id.
jury deliberated for three days before finding Andrews guilty
of the first-degree murders of Wheeler, Brandon, and Chism.
Andrews was also convicted of rape, sodomy by a foreign
object, and robbery. In re Andrews, 52 P.3d at
658-59. And the jury found four special circumstances to be
true-prior murder, multiple murder, robbery-murder, and
rape-murder-making Andrews eligible for the death penalty.
Id. at 659.
penalty-phase presentations for both the prosecution and the
defense were limited. The prosecution's evidence
consisted of a stipulation and two exhibits. Id. The
exhibits were photographs of two of the victims that had been
excluded from the guilt phase because they were unduly
inflammatory. Id. The stipulation established
Andrews's birthday (showing that Andrews was twenty-nine
years old at the time of the murders), and that Andrews had
pleaded guilty in Alabama to the crimes of armed robbery,
escape, and robbery. Andrews, 776 P.2d at
300. The prosecution gave a short closing
presentation focused on the violent circumstances of the
crimes that repeatedly mentioned Andrews's prior
convictions for violent offenses.
defense's evidence, admitted by stipulation, consisted of
two "sworn statements describing the circumstances
surrounding [Andrews's] prior Alabama murder
conviction." Id. According to the statements,
Andrews and his accomplice "entered a grocery store and
announced a robbery. When the store clerk placed his hand
down the front of his apron, [Andrews's] companion fired
three gunshots, killing" the store clerk. Id.
calling no witnesses and introducing only a brief description
of Andrews's previous crimes into evidence, Andrews's
counsel gave a short, rambling closing statement-spanning
just nine pages of trial transcript.Counsel's statement
overwhelmingly focused on Andrews's age. In fact, counsel
repeatedly suggested that the "fact alone that [Andrews
was] only [twenty-nine] years old can be sufficient in
mitigation for you to consider. That alone."
Counsel's brief presentation also veered from topic to
topic-from the security at Folsom prison, to Andrews's
secondary role in his prior murder conviction, to the fact
that Sanders, as well as defendants in other high-profile
murders, did not receive death sentences for their crimes.
jury returned a death verdict on each of the three murder
counts. In re Andrews, 52 P.3d at 658-59. The
California Supreme Court affirmed the conviction and sentence
on direct appeal on August 3, 1989. Andrews, 776
P.2d at 285, 288.
later filed petitions for state post-conviction relief before
the California Supreme Court. One claim asserted that, at the
penalty phase of his trial, Andrews received ineffective
assistance from his counsel-Gerald Lenoir and Hal
Miller-based on their failure to investigate avenues of
mitigation and to present mitigation evidence. In re
Andrews, 52 P.3d at 659.
California Supreme Court appointed a state superior court
judge to conduct a reference hearing and to take evidence and
make findings of fact on a series of questions related to
Andrews's ineffective assistance of counsel claim.
Id. The referee received testimony from more than
fifty witnesses over multiple years. Id. at 660
referee determined that "[n]o character evidence and
virtually no mitigation was presented at the penalty
trial." However, through the use of "standard
investigative techniques" and "simple
persistence," Andrews's counsel could have
identified and presented a "large number of
witnesses" in mitigation, "painting an in-depth
portrait" of Andrews.
on the referee's findings, that portrait would have
revealed that Andrews was born and raised in a segregated and
poor part of Mobile, Alabama in the 1960s. In re
Andrews, 53 P.3d at 660. His parents were alcoholics who
separated soon after his birth, leaving Andrews and his
siblings in the care of his grandparents. Id. When
Andrews was approximately ten years old, his
grandfather-described by the referee as a "pivotal
figure" in his life-died. Id. (internal
quotation marks omitted). After his grandfather's death,
Andrews became "more withdrawn, [his] truancy increased
significantly, and he started to get involved in minor legal
scrapes." At age fourteen, as a result of his
involvement in a car theft, Andrews was committed to Mt.
Meigs. In re Andrews, 53 P.3d at 660.
conditions at Mt. Meigs were "appalling."
Id. A federal district court judge-who had
participated in litigation pertaining to the conditions at
Mt. Meigs before joining the bench-testified at the reference
hearing that "the institution was a penal colony for
children." Id. at 677 (Kennard, J., dissenting)
(internal quotation mark omitted). Another witness, a former
juvenile probation officer-who testified before Congress and
state legislatures about juvenile facilities around the
country-described Mt. Meigs as a "slave camp for
children." Id. (internal quotation marks
omitted). He testified that the children there were
"beaten all the time with, among other things,
broomsticks, mop handles, and fan belts" and that Mt.
Meigs was "by far, by far . . . the worst facility"
he had ever seen. Id. (internal quotation marks
former probation officer added that the children committed to
Mt. Meigs in the 1960s had "no chance of
rehabilitation" and "came out much worse" than
when they entered. Indeed, the institution was "not
designed for rehabilitation." There were "no
vocational programs, no counseling, and virtually no
education" available. In re Andrews, 53 P.3d at
677. Instead, children were "put to work in the fields,
picking cotton and tending vegetables." Id. At
night, there was little supervision, leading to "a lot
of sexual abuse of children." Id. (internal
quotation marks omitted).
of the witnesses who testified at the reference hearing had
been committed to Mt. Meigs, and seven were there at the same
time as Andrews. Id. Each testified to
"horrific conditions," describing beatings with
"sticks (sometimes lead-filled), bullwhips, and fan
belts, often for trivial matters." Id. These
witnesses repeated one particularly cruel example of abuse:
When a child was disobedient in the fields or failed to pick
his quota of cotton, an overseer would "poke a hole in
the ground and order him to lie down, to pull down his pants,
and to stick his penis into the hole. The overseer would then
beat the boy's thighs with a stick, often until the skin
burst open. One witness remembered seeing [Andrews] beaten in
this manner." Id.
1971, a federal district court in Alabama determined that
"the frequent and indiscriminate use of corporal
punishment" by school personnel at Mt. Meigs
demonstrated a "callous indifference to children's
safety," providing a basis for liability for cruel and
unusual punishment under the Eighth Amendment. Stockton
v. Ala. Indus. Sch. for Negro Child., No. 2834-N (M.D.
Ala. July 23, 1971) (order adopting proposed findings of fact
and conclusions of law dated July 19, 1971).
referee concluded, once Andrews entered Mt. Meigs at age
[h]is academic schooling from that point was virtually
nonexistent, and he was subjected to beatings, brutality,
inadequate conditions and sexual predators . . . . He was
rarely visited by family[, and his] passiveness and small
physique caused him to be a target of older, tougher boys,
from whom no protection or separation was provided.
of his young age and slight build, that targeting included
"substantial sexual pressure." In re
Andrews, 52 P.3d at 677 (Kennard, J., dissenting). And,
according to Andrews's mother, whatever "happened at
that industrial school  ruined [Andrews's] life."
his release from Mt. Meigs, Andrews "became withdrawn
and uncommunicative." In re Andrews, 53 P.3d at
661 (majority opinion). "Over his family's
objections, he began to associate with older, streetwise
boys, including Freddie Square, a more sophisticated young
man with manipulative and criminal tendencies."
Id. (internal quotation mark omitted). Just months
after his release from Mt. Meigs, "at Square's
instigation," Andrews and Square robbed a grocery store.
Id. During the robbery, Square shot and killed the
store clerk. Id. Shortly thereafter, Andrews was
convicted of murder and robbery for his role in the crime.
spent the next ten years in various jails and prisons
throughout the state. Id. The referee described the
conditions in Alabama as abysmal, characterized by severe
overcrowding, racial segregation,
substandard facilities, no separation of the tougher inmates
from younger or smaller inmates, constant violence, the
persistent threat of sexual assaults and the constant
presence of sexual pressure, the availability and necessity
of weapons by all inmates, and degrading conditions in
Id. (internal quotation marks omitted).
expert witness described the Alabama prison system at the
time as a "national disgrace" and as either
"the worst" or "among a handful of the
worst" prison systems in the United States. Id.
at 678 (Kennard, J., dissenting) (internal quotation marks
omitted). During the time Andrews was incarcerated in
Alabama, the prison conditions there, like the conditions in
Mt. Meigs, were found to violate the Eighth Amendment.
Id. at 676; see also Pugh v. Locke, 406
F.Supp. 318, 322-31 (M.D. Ala. 1976).
to the testimony of a former physician at one facility, the
"conditions at the overcrowded and rat-infested prisons
[were] 'so debilitating' that they deprived inmates
of 'any opportunity to rehabilitate themselves or even to
maintain the skills already possessed.'" In re
Andrews, 52 P.3d at 678 (Kennard, J., dissenting). When
Andrews entered the prison system, "it was newly
integrated and many of the [w]hite prison guards resented the
[b]lack prisoners, whom they called 'things' and
assaults in the prisons were common and, according to one
expert witness, "[t]he prevailing view among both staff
and inmates was that an inmate who was raped
'deserved' it because he was 'not man enough to
fight.'" Id. Although the precise details
were unclear, Andrews's post-conviction counsel presented
evidence at the state court hearing that Andrews was
"repeatedly raped in prison." Id. at
679-80 (reviewing testimony describing four separate sexual
assaults). Another witness, a former inmate in prison with
Andrews, described him as a "little sheep among wolves,
a baby among a bunch of grownups." Id. at 679
(internal quotation mark omitted).
yet, despite the violence surrounding Andrews, the referee
it was undisputed that [Andrews] was rarely the instigator of
violence. On the contrary, the evidence showed that he
avoided violence and appeared to adjust well when the
structure permitted and that he would continue to do so. His
small stature made him the target of more violent inmates in
virtually every institution in which he was housed. However,
when circumstances permitted, he tended to hold positions of
responsibility. To the extent that he was involved in prison
violence personally, the evidence remains consistent that he
was the prey rather than the predator.
Id. (quoting referee's findings).
the referee received "[e]xtensive psychiatric
testimony" from several expert witnesses who described
Andrews as suffering from a range of mental disorders,
including post-traumatic stress disorder and organic brain
impairment. Id. at 661-62 (majority opinion)
(internal quotation mark omitted). Those witnesses testified
that the impact of Andrews's experiences in Alabama's
correctional institutions "made his behavior
understandable and his reincarceration predictable."
Id. at 662 (quoting referee's findings).
hearing evidence about the investigative steps that were
required to uncover this background information, the referee
found none of it "called for any extraordinary efforts
beyond simple persistence." Id. (internal
quotation marks omitted). The referee categorized the
available mitigation evidence into three "general and
partially overlapping" areas: (1) "the
circumstances of [Andrews's] upbringing"; (2)
"the impact of the correctional facilities in
Alabama"; and (3) "the psychiatric aspects of
[Andrews's] history." Id. According to the
referee, counsel "could readily have learned about
[Andrews's] upbringing from their contact with his
mother" and other family members who were willing to
provide information or to testify. Id. "Several
areas of inquiry were available relating to [Andrews's]
experiences in the correctional system in Alabama,"
including review of court files of prior convictions, prison
records, and juvenile records. Id. (internal
quotation mark omitted). Standard "[l]egal research
would have produced information concerning lawsuits and
prison conditions that were a matter of public record as to
conditions in the penal system during that period of
time." As for the availability of Andrews's mental
health history, the "[r]outine appointment of
psychiatric experts" would have provided information to
dictate whether any additional steps were necessary. In
re Andrews, 52 P.3d at 662 (alteration in original)
(quoting referee's findings).
referee also described the insufficient investigative steps
that counsel actually took. She explained that Andrews's
counsel "made only 'limited' efforts to gather
penalty-phase evidence on [Andrews's] behalf."
Id. at 663. They did not use investigators at the
penalty phase, nor did they have Andrews "examined by a
psychologist, psychiatrist, or any other mental health
expert." Id. The referee also found that they
"were severely impeded" in their ability to
represent Andrews "by their heavy caseloads, conducting
back-to-back capital cases before and after"
Andrews's trial. Id. at 664 (quoting
counsel made two trips to Mobile as part of their
penalty-phase investigation, each lasting a single day. On
their first trip, counsel "spent time searching for
records" relating to Andrews at the courthouse and
"driving around  in taxis" looking for evidence
of Andrews's "good character and good deeds."
Id. at 663. On their second trip, Miller and Lenoir
again reviewed records from the Mobile County Courthouse.
Id. They then interviewed Andrews's mother
during a layover at the Pensacola airport. Id.
reference hearing, Miller initially testified that the first
trip to Alabama included three days of investigation of
Andrews's background. He changed that account after being
confronted with evidence that the lawyers were, in fact, in
New Orleans for most of the trip. In reality, the lawyers
spent a single day in Mobile, flying back to New Orleans that
same day. The dates of the trip coincided with Mardi Gras.
second trip to Alabama also began with a stop in New Orleans.
On the next day, counsel flew to Mobile to "check the
court records," then traveled to Pensacola to interview
Andrews's mother, then flew to Tampa-all in the same day.
After a day in Tampa, the lawyers then spent five days in
Miami. Neither New Orleans, Tampa, nor Miami have any
connection whatsoever to Andrews's case.
referee found that Miller and Lenoir's investigation was
limited in part by Andrews's opposition to his
family's participation in the penalty phase. In re
Andrews, 52 P.3d at 664. Miller testified that he had
concerns about introducing evidence of Andrews's
incarceration history, as he was "not generally
impressed with prisoners and did not want to trade 'good
acts' for 'bad acts.'" Id.
There were no other constraints to developing witnesses or a
mental health profile of Andrews. Id.
referee also made findings relating to evidence the
prosecution might have introduced in aggravation. She
concluded that, had Andrews's counsel attempted to
introduce evidence in mitigation, the prosecution could have
introduced additional facts about two of Andrews's prior
convictions. Id. at 664-65. With respect to
Andrews's prior murder conviction, a taxi driver could
have testified that after Andrews and Square escaped from the
scene, they robbed the driver at gunpoint and Andrews fired
at least two shots at the driver from thirty feet away.
Id. at 665. As for the robbery, a police officer
could have testified that Andrews held a young woman hostage
at the scene, threatening to shoot her and police officers.
Id. The referee also determined that the prosecution
was likely to call its own mental health experts to rebut
Andrews's. Id. at 670. However, the prosecutor
from Andrews's trial, who had become a state court judge
in the interim, "testified that if the defense had
presented evidence of the Alabama prison conditions he
probably would not have called rebuttal witnesses to
give details about petitioner's Alabama crimes."
Id. at 682 (Kennard, J., dissenting). The referee
did not, however, credit this testimony. Id. at
665-66 (majority opinion).
reviewing these findings, the California Supreme Court turned
to Andrews's claim that Miller and Lenoir provided
ineffective assistance of counsel at the penalty phase of his
the California Supreme Court held that Andrews's counsel
had not performed deficiently. See id. at 667-70.
The court acknowledged the referee's findings that
"simple persistence" would have yielded much of the
mitigation evidence presented at the reference hearing and
that Miller and Lenoir "could well have made a more
thorough investigation than [they] did." Id. at
668-69 (alteration in original). But, in the court's
view, Miller and Lenoir's failure to exercise that
persistence was excused by Andrews's request that his
family not be involved and his failure to volunteer
information about the abuse he had endured. Id. at
concluded that Miller and Lenoir's preliminary
investigation was reasonable, the California Supreme Court
then looked to the reasonableness of the strategy Miller and
Lenoir apparently adopted-portraying Andrews as a
"follower" and comparing Andrews's sentence to
the sentences imposed in other recent murder cases.
Id. at 669. The California Supreme Court concluded
this approach was reasonable. Id. at 669-71.
Although noting that the mitigating evidence Miller and
Lenoir failed to present at the penalty phase "leaves no
doubt [Andrews] endured horrifically demeaning and degrading
circumstances" in Alabama, id. at 671, the
court ventured that the evidence could have backfired because
it would have required counsel to call a series of inmates as
witnesses, "including one death row inmate, with serious
felony records for murder, rape, and armed robbery,"
id. at 670-71.
the California Supreme Court concluded that, "[f]or the
same reasons" it found Miller and Lenoir had not
performed deficiently, it also found Andrews had not been
prejudiced by Miller and Lenoir's performance.
Id. at 671. The court then denied Andrews's
habeas petition. Id. at 676.
justices of the California Supreme Court dissented,
id. at 676, 684, including Justice Kennard, who
authored the California Supreme Court's opinion affirming
Andrews's conviction and sentence on direct appeal,
People v. Andrews, 776 P.2d 285 (Cal. 1989). After
reviewing all the evidence adduced at the reference hearing,
the dissent concluded that it could not "put confidence
in the verdict of a jury that decided the case without
hearing the substantial mitigating evidence that competent
counsel could and should have presented." In re
Andrews, 52 P.3d at 684 (Kennard, J., dissenting)
(internal quotation mark omitted).
the California Supreme Court's denial of Andrews's
state habeas petition, Andrews filed a habeas petition in
federal district court. His amended petition included
thirty-two claims. The district court denied relief on
thirty-one of the thirty-two claims, but granted relief on
Andrews's penalty-phase ineffective assistance of counsel
claim. The district court also granted a certificate of
appealability for one claim: whether California's lethal
injection protocol violates the Eighth Amendment.
filed a timely appeal, seeking reversal of the district
court's denial of his challenge to California's
lethal injection protocol in addition to several uncertified
claims. The State cross-appealed the district court's
grant of relief on Andrews's ineffective assistance of
divided panel of this Court reversed the district court's
grant of relief, dismissed Andrews's challenge to the
lethal injection protocol as unripe, and otherwise denied the
petition. Andrews v. Davis, 866 F.3d 994 (9th Cir.
ordered the case reheard en banc. Andrews v. Davis,
888 F.3d 1020 (9th Cir. 2018).
review a district court's grant or denial of habeas
relief de novo. Sanders v. Cullen, 873 F.3d
778, 793 (9th Cir. 2017).
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, governs our
review of Andrews's petition. Under AEDPA, we look to the
last reasoned state court decision-here, the California
Supreme Court's decision-to address the merits of
Andrews's claims. Wilson v. Sellers, 138 S.Ct.
1188, 1192 (2018).
AEDPA, we must defer to that state court's decision with
respect to any claim adjudicated on the merits, see
28 U.S.C. § 2254(d), unless the adjudication of the
claim involved an "unreasonable application" of
clearly established federal law as determined by the Supreme
Court of the United States, id. §
2254(d)(1). A state court decision rests on an
"unreasonable application" of federal law where a
state court identifies the correct governing rule, but
unreasonably applies that rule to the facts of the
prisoner's case. Williams v. Taylor, 529 U.S.
362, 407-08 (2000).
unreasonable application must be "'objectively
unreasonable,' not merely wrong." White v.
Woodall, 572 U.S. 415, 419 (2014) (internal quotation
marks omitted). It is not enough that a federal habeas court
concludes "in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly." Lockyer v.
Andrade, 538 U.S. 63, 76 (2003) (internal quotation mark
omitted). Rather, the decision must be "so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement." Richter, 562 U.S. at
U.S.C. § 2254(d)(2), deference to a state court decision
is also not required where the decision is "based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." A
state court's factual findings are "presumed to be
correct," id. § 2254(e)(1), and the same
standard of unreasonableness under § 2254(d)(1) applies
under § 2254(d)(2), see Rice v. Collins, 546
U.S. 333, 339, 342 (2006). Unreasonable determinations of
material facts can occur "where the state court
plainly misapprehend[s] or misstate[s] the record in making
[its] findings" or where the state court "has
before it, yet apparently ignores, evidence that supports
petitioner's claim." Taylor v. Maddox, 366
F.3d 992, 1001 (9th Cir. 2004), cert. denied, 543
U.S. 1038 (2004), overruled on other grounds by Murray v.
Schriro, 745 F.3d 984, 999- 1000 (9th Cir. 2014).
v. Washington and its progeny constitute the clearly
established federal law governing claims of ineffective
assistance of counsel. Cullen v. Pinholster, 563
U.S. 170, 189 (2011) (citing Strickland, 466 U.S. at
668). Strickland recognizes that, under the Sixth
Amendment, the accused has a constitutional right to the
effective assistance of counsel at the guilt and penalty
phases of a capital trial. 466 U.S. at 684-87. To establish
ineffective assistance under Strickland, a prisoner
must demonstrate that: (1) counsel's "performance
was deficient"; and (2) counsel's "deficient
performance prejudiced the defense." Id. at
687. The "ultimate focus" of the
Strickland standard is "the fundamental
fairness of the proceeding whose result is being
challenged." Id. at 696.
establish deficient performance, a petitioner must show that
"counsel's representation fell below an objective
standard of reasonableness." Id. at 688.
"A court considering a claim of ineffective assistance
must apply a 'strong presumption' that counsel's
representation was within the 'wide range' of
reasonable professional assistance." Richter,
562 U.S. at 104 (quoting Strickland, 44 U.S. at
689). With respect to prejudice, a petitioner must
demonstrate that, "but for counsel's unprofessional
errors," there is a "reasonable probability"
that the "result of the proceeding would have been
different." Strickland, 466 U.S. at 694. In the
context of the penalty phase of a capital case, it is enough
to show "a reasonable probability that at least one
juror" would have recommended a sentence of life instead
of death. Wiggins v. Smith, 539 U.S. 510, 537
(2003). The likelihood of that result must be
"substantial, not just conceivable."
Richter, 562 U.S. at 112.
purposes of our review, the "only question that
matters" is whether the state court's decision
involved an unreasonable application of
Strickland's principles. See Andrade,
538 U.S. at 71. In any ineffectiveness case,
Strickland sets a high bar for relief.
Richter, 562 U.S. at 105. And, under AEDPA's
deferential standard, that bar is doubly difficult to clear.
this framework in mind, we turn to Andrews's claim that
he received ineffective assistance of counsel at the penalty
phase of his trial.
regard to Strickland's performance prong, the
California Supreme Court unreasonably applied clearly
established federal law in concluding Andrews received