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Andrews v. Davis

United States Court of Appeals, Ninth Circuit

December 16, 2019

Jesse James Andrews, Petitioner-Appellant/ Cross-Appellee,
Ron Davis, Respondent-Appellee/ Cross-Appellant.

          Argued and Submitted En Banc September 25, 2018 Pasadena, California

          Appeal 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 Petitioner-Appellant/Cross-Appellee.

          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 Respondent-Appellee.

          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 Judges.

         SUMMARY [*]

         Habeas Corpus/Death Penalty

         In an 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 claims.

         Regarding 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 otherwise.

         Regarding 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.

         Concurring 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.



         Jesse 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.

         In 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 unreasonable.

         Indeed, 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 688.

         To be 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).

         This 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.



         The 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.

         The 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.

         After 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.

         While 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.

         The 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.

         The 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.

         The 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.

         The 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.

         After 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.[1]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.

         The 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.


         Andrews 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.


         The California Supreme Court appointed a state superior court judge to conduct a reference hearing[2] 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 & n.2.

         The 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.

         Based 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.

         The 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 omitted).

         The 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).

         Thirteen 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.

         In 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).

         As the referee concluded, once Andrews entered Mt. Meigs at age fourteen,

[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.

         Because 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."

         Following 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. Id.

         Andrews 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 disciplinary modules.

Id. (internal quotation marks omitted).

         One 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).

         According 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 'niggers.'" Id.

         Sexual 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).

         And yet, despite the violence surrounding Andrews, the referee found that

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).

         Finally, 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).

         After 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).

         The 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 referee's findings).

         Andrews's 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.

         At the 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.

         The 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.

         The 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.'"[3] Id. There were no other constraints to developing witnesses or a mental health profile of Andrews. Id.

         The 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).


         After 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 trial.

         First, 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 668.

         Having 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.

         Second, 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.

         Two 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).


         Following 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.

         Andrews 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 counsel claim.

         A 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. 2017).

         We ordered the case reheard en banc. Andrews v. Davis, 888 F.3d 1020 (9th Cir. 2018).


         We review a district court's grant or denial of habeas relief de novo. Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017).

         The 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).

         Under 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).[4] 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).

         An 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 103.

         Under 8 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).

         Strickland 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.

         To 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.

         For 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. Id.[5]

         With this framework in mind, we turn to Andrews's claim that he received ineffective assistance of counsel at the penalty phase of his trial.


         With regard to Strickland's performance prong, the California Supreme Court unreasonably applied clearly established federal law in concluding Andrews received ...

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