Jesse Andrews v. Kevin Chappell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JESSE JAMES ANDREWS, No. 09-99012
Petitioner-Appellant,
D.C. No.
v. 2:02-CV-08969-R

RON DAVIS, Acting Warden,
Respondent-Appellee.

JESSE JAMES ANDREWS, No. 09-99013
Petitioner-Appellee,
D.C. No.
v. 2:02-CV-08969-R

RON DAVIS, Acting Warden,
Respondent-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted
January 12, 2015—Pasadena, California

Filed August 5, 2015
2 ANDREWS V. DAVIS

Before: Sandra S. Ikuta, N. Randy Smith,
and Mary H. Murguia, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Habeas Corpus/Death Penalty

The panel dismissed as unripe the sole claim certified by
the district court for appeal, denied a motion to expand the
certificate of appealability, and reversed the district court’s
grant of relief on an ineffective assistance of counsel claim in
a case in which Jesse James Andrews challenges his
conviction and capital sentence for three murders.

The panel reversed the district court’s grant of relief on
Andrews’s claim that he was prejudiced by his counsel’s
failure to investigate and present additional mitigating
evidence at the penalty phase of his trial, because, under
28 U.S.C. § 2254(d)(1), the California Supreme Court did not
unreasonably apply Supreme Court precedent in concluding
that Andrews was not prejudiced by any deficient
performance.

Because California has no lethal injection protocol
currently in place, the panel dismissed as unripe Andrews’s
certified claim that California’s use of its lethal injection

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ANDREWS V. DAVIS 3

protocol to execute him would violate his Eighth Amendment
rights.

The panel denied Andrews’s request to certify for appeal
his uncertified claims of unconstitutional delay between
sentencing and execution, ineffective assistance of counsel,
failure to disclose material exculpatory evidence and false
testimony, and destruction of evidence.

The panel held that the district court did not abuse its
discretion in denying Andrews’s motion for an evidentiary
hearing.

COUNSEL

Michael Burt (argued), Law Office of Michael Burt, San
Francisco, California, for Petitioner-Appellant/Cross-
Appellee.

Xiomara Costello (argued), Supervising Deputy Attorney
General, Kamala D. Harris, Attorney General of California,
Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Keith H. Borjon,
Supervising Deputy Attorney General, A. Scott Hayward,
Deputy Attorney General, Sarah J. Farhat, Deputy Attorney
General, Shira Seigle Markovich, Deputy Attorney General,
Edward C. DuMont, Solicitor General, Gerald A. Engler,
Chief Assistant Attorney General, Michael J. Mongan,
Deputy Solicitor General, James William Bilderback II,
Supervising Deputy Attorney General, Los Angeles,
California, for Respondent-Appellee/Cross-Appellant.
4 ANDREWS V. DAVIS

OPINION

IKUTA, Circuit Judge:

Jesse James Andrews appeals from the district court’s
denial of all but one of the claims raised in his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. The state
cross-appeals the district court’s grant of relief on Andrews’s
claim that his counsel’s assistance was ineffective at the
penalty phase of his capital murder trial. We dismiss as
unripe the claim the district court certified for appeal, and
deny Andrews’s motion to expand the certificate of
appealability to include uncertified claims. We reverse its
grant of relief on the ineffective assistance claim because,
under 28 U.S.C. § 2254(d)(1), the California Supreme Court
did not unreasonably apply Supreme Court precedent in
concluding that Andrews was not prejudiced by any deficient
performance by his counsel.

I

A

On December 9, 1979, police were called to a Los
Angeles apartment, where they found the bodies of three
murder victims. People v. Andrews, 776 P.2d 285, 288 (Cal.
1989). The murder victims were Preston Wheeler, who lived
in the apartment, Patrice Brandon, and Ronald Chism. Id.
The California Supreme Court described the murder scene as
follows:

Wheeler had been stabbed in the chest six
times and shot in the neck at close range with
either a .32– or .357– caliber weapon. His
 ANDREWS V. DAVIS 5

face and head were bruised, and his face had
been slashed with a knife. Brandon and
Chism had been strangled with wire coat
hangers. Their faces were bruised, Chism’s
extensively. Brandon’s anus was extremely
dilated, bruised, reddened and torn, consistent
with the insertion of a penis shortly before her
death. There was also redness around the
opening of her vagina, and vaginal samples
revealed the presence of semen and
spermatozoa. All three victims were bound
hand and foot.

Id.

Approximately a year later, police arrested Charles
Sanders in connection with the murders. Id. Sanders entered
into a plea agreement, in which he pleaded guilty to three
counts of second degree murder, admitted a gun
enhancement, and agreed to cooperate with the prosecution,
in exchange for a sentence of 17 years to life in prison. Id.
During his interrogation by the police, Sanders gave both a
tape-recorded and a written statement. Id. He also testified
at Andrews’s trial, and described the crime as follows:

Sanders testified that he and [Andrews]
devised a plan to rob Wheeler, a drug dealer.
[Andrews] armed himself with a .357
magnum and gave Sanders a .38–or
.32–caliber automatic. On the evening of the
murders, they visited their friend, Carol
Brooks, who lived in the same apartment
building as Wheeler, and then went to
Wheeler’s apartment. In response to their
6 ANDREWS V. DAVIS

knocking, Wheeler, who apparently knew
[Andrews], let them in. Also inside the
apartment was a woman (Patrice Brandon).
After smoking some marijuana with Wheeler,
[Andrews] and Sanders drew their guns.
Sanders tied Wheeler and Brandon with belts
and socks, put on a pair of gloves, and began
to search the apartment for drugs and money.
Except for some powder on a saucer which
appeared to be cocaine, the search was
unsuccessful. [Andrews] questioned Wheeler,
who denied having any drugs or money.
Saying he would make Brandon talk,
[Andrews] dragged her into the kitchen and
closed the door. Sanders remained in the
living room with Wheeler.

Sanders heard [Andrews] hitting Brandon and
later heard sounds as though they were having
sex. When [Andrews] came out of the kitchen
shortly thereafter, Sanders saw Brandon’s
pants around her ankles.

[Andrews] put his gun in Wheeler’s mouth.
He threatened to kill Wheeler and Brandon
unless Wheeler revealed the location of the
drugs. Wheeler said the ‘dope’ was in the
attic, and pointed out a trap door leading up to
it. Sanders climbed into the attic. While in
the attic, Sanders heard two shots. When he
came down, [Andrews] told him he had shot
Wheeler because the latter had tried to jump
out the window. Sanders asked if Wheeler
was dead. [Andrews] responded he was
 ANDREWS V. DAVIS 7

‘standing right up’ on Wheeler when he fired
the gun . . . . When Sanders asked about
Brandon, [Andrews] replied he had killed her
before leaving the kitchen.

While [Andrews] and Sanders were cleaning
up the apartment, Ronald Chism knocked on
the door and asked if everything was all right.
[Andrews] said Wheeler was home and
invited him inside. [Andrews] then hit Chism
on the head, tied him up, and took him into
the bathroom. Sanders saw [Andrews] sitting
astride Chism’s back, joining and separating
his clenched fists in a tugging motion,
apparently strangling Chism. Sanders then
saw [Andrews] go into the kitchen and choke
Brandon with a wire clothes hanger. When
the two left the apartment, [Andrews] gave
Sanders some money, saying it was all he had
found.

In re Andrews, 52 P.3d 656, 658 (Cal. 2002) (alterations,
citations, and internal quotation marks omitted). Andrews
was eventually arrested, and he was charged in June 1982.

At trial, the jury heard Sanders’s testimony as well as the
testimony of Carol Brooks. Brooks confirmed that Andrews
and Sanders visited her on the night of the murders and told
her about their plan to “get some money” from Wheeler.
People v. Andrews, 776 P.2d at 289. A week after the
incident, Sanders told her about his involvement in the
murders. Id. Then, a few weeks later, Andrews confessed to
her that he shot Wheeler, had sex with Brandon, and took
$300 during the robbery. Id.
8 ANDREWS V. DAVIS

The prosecution also presented fingerprint evidence. Id.
Police experts analyzed 50 prints lifted from the apartment;
three prints belonged to Andrews. Id. One fingerprint was
found on a coffee table in Wheeler’s living room. Id. Two
palm prints were found on the kitchen floor, on either side of
the spot where Brandon’s body was found, the left palm print
being about a foot from her body.

The defense primarily focused on undermining Sanders’s
credibility. Id. Two jail inmates who had been incarcerated
with Sanders testified. Id. They stated that, while Sanders
was incarcerated with them, he made statements suggesting
he planned to lie about the murders to shift blame onto
Andrews and away from himself. Id.

The jury deliberated for three days before finding
Andrews guilty of murder.1 The jury also found three special
circumstances to be true. Two special circumstances related
to the offense conduct: (1) multiple murder and robbery
murder, based on the murders of Wheeler, Brandon, and
Chism, and the robbery of Wheeler, and 2) rape-murder,
based on the rape and murder of Brandon. In re Andrews,
52 P.3d at 659. The third special circumstance was
Andrews’s conviction for murder of a grocery store clerk in
1967. Id.

Both the prosecutor and defense counsel made brief
presentations at the penalty phase. The prosecutor presented
evidence through a joint stipulation. Id. He noted that the
jury had already found that Andrews had been convicted of
murder in 1967. The parties also stipulated that Andrews had

1
Andrews was convicted after his second trial, because the jury failed
to reach a verdict in the first trial.
 ANDREWS V. DAVIS 9

been convicted of armed robbery in May 1968, that he had
been convicted of escape in November 1969, and that he had
been convicted of robbery in June 1977. Id. The stipulation
did not describe the facts of the offenses underlying these
additional convictions. The prosecution also submitted
photographs of the dead bodies of Patrice Brandon and
Ronald Chism as they were found by the police in the
apartment; the photos had been excluded at the guilt phase on
the ground they were unduly inflammatory. Id. Finally, the
parties stipulated that Andrews’s birth date was July 2, 1950.
Id.

The defense evidence consisted of two sworn statements
that were read to the jury. Id. The statements described facts
underlying the incident in September 1966 that formed the
basis of Andrews’s 1967 conviction for murder. According
to the statements, Andrews and a 17-year-old companion,
both of whom were armed, attempted to rob a grocery store,
and the companion fired three shots, killing the grocery store
clerk. Id.

In his closing argument, defense counsel focused on
mitigating circumstances. He argued that Andrews’s crimes
were unsophisticated, occurred several years apart, and all
involved the unexpected escalation of a planned robbery. Id.
He pointed out that Andrews was only 15 years old at the
time of the murder of the grocery store clerk, and was not the
shooter. Id. He portrayed Andrews’s conduct as less
blameworthy because the murders occurred while Andrews,
Sanders, Wheeler, and Brandon were under the influence of
illegal drugs. Id. at 659–60. Finally, he emphasized that
other murderers had received life without the possibility of
parole despite the jury’s finding of special circumstances, and
despite more blameworthy conduct. Id. at 659. He pointed
10 ANDREWS V. DAVIS

out that in this very case, Sanders received a sentence of only
17 years to life. Id. at 660. The prosecution made no
rebuttal.

After one day of deliberations, the jury returned a verdict
imposing the death penalty for each of the three murder
counts. The court sentenced Andrews to death on the three
counts on June 8, 1984. The California Supreme Court
affirmed the conviction and sentence on direct appeal on
August 3, 1989. People v. Andrews, 776 P.2d at 285, 288.

B

Andrews filed petitions for state post-conviction relief,
claiming, among other things, that his counsel’s assistance
was ineffective at the penalty phase because counsel did not
adequately investigate and present mitigating evidence. The
California Supreme Court summarily denied all of Andrews’s
claims, except for his penalty phase ineffective assistance of
counsel claim.

The California Supreme Court appointed a referee to take
evidence and make factual findings on six questions related
to Andrews’s penalty phase ineffective assistance of counsel
claim. In re Andrews, 52 P.3d at 659. Two of the six
questions are relevant to the question of whether Andrews
was prejudiced by his counsel’s allegedly ineffective
assistance: “1. What mitigating character and background
evidence could have been, but was not, presented by
[Andrews]’s trial attorneys at his penalty trial?” id. at 660,
and “5. What evidence, damaging to [Andrews], but not
presented by the prosecution at the guilt or penalty trials,
would likely have been presented in rebuttal, if [Andrews]
had introduced any such mitigating character and background
 ANDREWS V. DAVIS 11

evidence?” id. at 664.2 The referee received the testimony of
over 50 witnesses, which took place over the span of six
years, id. at 660, and issued a lengthy written report of her
findings.

The California Supreme Court denied Andrews’s penalty
phase ineffective assistance of counsel claim in a lengthy
opinion. Id. at 656–76. In its opinion, the court summarized
the referee’s findings. In response to the first question, the
referee identified three broad categories of mitigating
evidence that were available but not presented to the jury:
Andrews’s family background; the conditions of his
confinement in a juvenile reform school and in the Alabama
prison system; and his mental health. Id. at 660. As
summarized in the court’s opinion, the referee’s report
included the following information regarding Andrews’s

2
The other four questions were:

2. What investigative steps by trial counsel, if any,
would have led to each such item of information?

3. What investigative steps, if any, did trial counsel take
in an effort to gather mitigating evidence to be
presented at the penalty phase?

4. What tactical or financial constraints, if any, weighed
against the investigation or presentation of mitigating
character and background evidence at the penalty
phase? . . .

6. Did [Andrews] himself request that either the
investigation or the presentation of mitigating evidence
at the penalty phase be curtailed in any manner? If so,
what specifically did [Andrews] request?

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

background. When he was very young, Andrews’s alcoholic
parents separated, and his mother left him to be raised by his
grandparents and aunt, in a large family home with his
siblings and cousins, located in a poor, segregated
neighborhood of Mobile, Alabama. Id. The referee described
Andrews’s grandfather as “loving, benevolent, and
responsible,” id., and the court added that Andrews’s mother
regularly sent money and clothing to her children and that
Andrews’s upbringing and early family life were “relatively
stable and without serious privation or abuse,” id. at 670.
When Andrews was around nine or ten, his mother returned
home to stay. Id. at 660, 670. She had children by another
marriage, of whom Andrews was jealous. Id. at 660. Around
that time Andrews’s grandfather, a “pivotal figure” in his life,
died. Id. (internal quotation marks omitted). Andrews
became withdrawn, skipped school, and at age 14, committed
car theft and was sent to a reform school known as Mt.
Meigs, formally the Alabama Industrial School for Negro
Children. Id.

The conditions at Mt. Meigs, described succinctly by the
state court as “appalling,” included “beatings, brutality,
inadequate conditions and sexual predators.” Id. at 660–61
(internal quotation marks omitted). According to the
referee’s report, one witness described it as “a farming
operation and a penal colony for children,” while others
described “inhuman conditions, inadequate food and clothing
and severe beatings,” with “sticks, broom handles, tree limbs,
and hoe handles . . . or fan belts.” Andrews was released at
age 16. Id. at 661.

Within three months of his release, in September 1966, he
and a companion were involved in the attempted robbery and
murder of the grocery store clerk that became one of the three
 ANDREWS V. DAVIS 13

special circumstances in this capital case. See supra at 9; In
re Andrews, 52 P.3d at 661. The evidence showed that when
Andrews and his companion were fleeing the scene in a taxi,
they robbed the taxi driver at gunpoint. In re Andrews, 52
P.3d at 661. The taxi driver testified he heard Andrews say
“[l]et’s shoot him.” Id. at 665 (internal quotation marks
omitted). Andrews then fired at least two shots at the taxi
driver. Id. In 1967, Andrews was convicted of murder based
on the grocery store incident, and in 1968, he was convicted
of armed robbery of the taxi driver. Id. at 661 n.4. Just
before he turned 18, he was committed to Alabama state
prison. Id. at 661.

Summarizing the referee’s findings about conditions in
the four different prisons in which Andrews was confined
over ten years, the California Supreme Court stated:

[The referee] described conditions in these
institutions as abysmal, characterized by
severe overcrowding, racial segregation,
substandard facilities, no separation of the
tougher inmates from younger or smaller
inmates, constant violence, the persistent
threat of sexual assaults and the constant
presence of sexual pressure, the availability
and necessity of weapons by all inmates, and
degrading conditions in disciplinary modules.
[Andrews] not only received beatings but was
also personally subjected to sexual assaults.

Id. (internal quotation marks omitted).

The court also noted that Andrews had been involved in
prison violence, including “the stabbings of two inmates who
14 ANDREWS V. DAVIS

had been threatening him.” Id. (internal quotation marks
omitted). However, Andrews “was rarely the instigator of
violence,” was “the prey rather than the predator” when he
was involved, and was often a target of violence due to his
small stature. Id. at 662 (internal quotation marks omitted).
He also “appeared to adjust well when the structure permitted
and . . . would continue to do so” and, “when circumstances
permitted, he tended to hold positions of responsibility.” Id.

After his release from prison in 1976, Andrews engaged
in an attempted robbery of a laundry. Id. at 661. In this
incident:

Mobile Police Officer Pettis testified that on
March 23, 1977, he responded to a robbery
call. Entering the store from which the call
came, he and other officers saw [Andrews]
holding a crying young woman hostage with
a cocked gun at her head. He told the officers
to leave and “continued to repeat, ‘Someone’s
going to get shot, I’m going to shoot.’” The
officers withdrew. Ultimately, [Andrews]
surrendered to the officers after releasing the
young woman and another woman whom he
had also held hostage.

Id. at 665. Andrews was arrested for the robbery, but escaped
from jail and fled to California. Id. at 661.

In California, Andrews met Debra Pickett, with whom he
had a stable relationship. Id. The couple had a child, and
Andrews held a job during this time. Id. But Andrews
resumed using cocaine, left his job and family, and then
committed the three murders at issue here. Id.
 ANDREWS V. DAVIS 15

The referee also described the testimony from mental
health experts that could have been presented at the penalty
phase. Summarizing the referee’s report, the California
Supreme Court noted that the experts diagnosed Andrews
with a range of mental disorders, including attention deficit
disorder, post traumatic stress disorder (PTSD), and mild to
moderate organic brain impairment, in part due to drug use
and possibly due to a head injury in prison. Id. The experts
opined that Andrews’s learning disability, the adverse
circumstances of his childhood, the impact of the correctional
systems, and the PTSD made his commission of the murders
and sexual assault more understandable and less morally
culpable. Id. at 661–62. The experts gave specific examples
of how Andrews’s impairments and the brutal conditions of
incarceration made it difficult for him to avoid getting into
trouble with the law. Id. at 661–62, 670. For example, one
psychiatrist testified that one of the victims had hurled an
insulting slur at Andrews a few days before the murders, and
Andrews’s PTSD would predispose him to overreact to the
slur, which contributed to the expert’s conclusion that
Andrews was “under the influence of extreme mental or
emotional distress” when he committed the murders.

In addressing the question whether the prosecutor would
have introduced evidence damaging to Andrews in rebuttal,
the referee found that the prosecution’s rebuttal presentation
could have included evidence about two of Andrews’s prior
convictions.3 Id. at 664–65. First, during the penalty phase

3
Andrews argued that the prosecutor testified he would not have put on
additional evidence, but the California Supreme Court rejected this
argument, finding that presentation of the mitigating evidence would have
prompted the prosecutor to shift the focus of his penalty phase case, put
16 ANDREWS V. DAVIS

of Andrews’s trial, the jury was reminded of its special
circumstance finding, that Andrews had been convicted of
murder in 1967 for his involvement in the grocery store
robbery-murder in 1966. It also heard that Andrews was
convicted of robbery in 1968, but it did not hear the facts on
which the conviction was based, such as evidence that
Andrews shot at the driver of the get-away taxi, which could
have been introduced as aggravating evidence. Id. at 659,
664. The prosecution could have introduced that evidence to
show Andrews’s greater moral culpability for the incident.
Id. at 664. Second, the prosecution could have informed the
jury about Andrews’s attempt to rob a laundry business
following his release from prison in 1976, which involved
holding two women hostage, one with a gun to her head. Id.
at 661, 665.

Further, the referee determined that the prosecution could
have called its own mental health experts to rebut Andrews’s
evidence. Id. at 665. The state could have presented expert
testimony that Andrews did not suffer from PTSD, but rather
suffered from antisocial personality disorder, resented
authority, and had a normal-range IQ of 93. Id. A second
expert would have testified that Andrews’s ability to hold a
job and maintain a stable relationship with Debra Pickett
before he committed the murders indicated he did not suffer
from brain damage, and the planning and thought that went
into the murders made it unlikely that he was under the
influence of drugs at the time. Id.

After recounting the referee’s findings on these questions
as well as the other four questions, and resolving objections

on additional witnesses, and use cross-examination and closing argument
to further damage Andrews’s mitigation case. Id. at 665–66.
 ANDREWS V. DAVIS 17

to the referee’s report, the California Supreme Court turned
to its analysis of Andrews’s ineffective assistance of counsel
claim. Id. at 667. It held that Andrews’s counsel’s
performance was not deficient during the penalty phase of the
trial because Andrews’s counsel made a reasonable
investigation, under then-existing professional norms and
Supreme Court precedent, and counsel also made a
reasonable decision not to conduct additional investigation.
Id. 667–71. It then held that even if counsel’s performance
were deficient, Andrews suffered no prejudice because a
different result was not reasonably probable in light of the
severity of his crimes, the fact that the jury might view some
of his mitigating evidence as aggravating, and the substantial
rebuttal evidence that could have been presented. Id. at 671.

Andrews filed a habeas petition in federal district court.
His amended petition raised 32 claims, including multiple
subclaims. In a lengthy ruling on the merits of the petition,
the district court denied 31 claims, but granted relief on the
claim that Andrews’s counsel were ineffective at the penalty
phase of his trial for failing to investigate and present
additional mitigating evidence. Reviewing the evidence
produced by the referee on this issue, the district court
concluded that counsel had made “essentially no effort to
investigate and put on evidence in mitigation,” which
constituted deficient performance under Strickland. The
court then ruled that counsel’s “failure to adequately
investigate and discover evidence of a life filled with abuse
and privation is sufficient to establish prejudice under
Strickland,” but the court did not consider whether the
California Supreme Court’s rejection of this ineffective
assistance of counsel claim was “contrary to, or involved an
unreasonable application of” Strickland under 28 U.S.C.
§ 2254(d)(1). The court granted Andrews’s petition on this
18 ANDREWS V. DAVIS

ineffective assistance of counsel claim, denied Andrews’s
other 31 claims, and granted a certificate of appealability
(COA) on Andrews’s claim that California’s lethal injection
protocol violates the Eighth Amendment (Claim 25).

Andrews timely appealed, challenging the district court’s
denial of Claim 25 and the denials of several uncertified
claims. The state cross-appealed the district court’s grant of
relief on Andrews’s ineffective assistance of counsel claim.
After briefing on his appeal was complete, Andrews moved
for permission to brief an additional uncertified claim, in
which he seeks habeas relief on the ground that it would
violate the Eighth Amendment to execute him after a long
delay from the date of his sentencing. We granted the
motion.

II

We review a district court’s grant or denial of habeas
relief de novo. Moses v. Payne, 555 F.3d 742, 750 (9th Cir.
2009).

A

The Antiterrorism and Effective Death Penalty Act
(AEDPA) applies to Andrews’s federal habeas petition,
which was filed after April 24, 1996. See Lindh v. Murphy,
521 U.S. 320, 322, 336 (1997). Under AEDPA, a court may
not grant a habeas petition “with respect to any claim that was
adjudicated on the merits in State court proceedings,”
28 U.S.C. § 2254(d), unless the state court’s judgment
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
 ANDREWS V. DAVIS 19

§ 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” § 2254(d)(2).4

Under § 2254(d)(1), the relevant Supreme Court
precedent includes only the decisions in existence “as of the
time the state court renders its decision.” Greene v. Fisher,
132 S. Ct. 38, 44 (2011) (internal quotation marks and
emphasis omitted); see also Cullen v. Pinholster, 131 S. Ct.
1388, 1399 (2011) (“State-court decisions are measured
against [the Supreme] Court’s precedents as of the time the
state court renders its decision.” (internal quotation marks
omitted)). Thus, Supreme Court cases decided after the state
court’s decision are not clearly established precedent under
§ 2254(d)(1) for purposes of evaluating whether the state
court reasonably applied such precedent.

A Supreme Court precedent is not clearly established law
under § 2254(d)(1) unless it “squarely addresses the issue” in
the case before the state court, Wright v. Van Patten, 552 U.S.
120, 125–26 (2008) (per curiam), or “establish[es] a legal
principle that ‘clearly extends’” to the case before the state
court, Moses, 555 F.3d at 754 (alterations omitted) (quoting
Van Patten, 552 U.S. at 123); see also Carey v. Musladin,
549 U.S. 70, 76–77 (2006) (holding that Supreme Court cases
evaluating state-sponsored courtroom conduct were not
clearly established law governing private actor courtroom
conduct). “[W]hen a state court may draw a principled

4
Neither party disputes that the claims in this case were “adjudicated on
the merits” by the California Supreme Court, and that its decision
constitutes the “last reasoned decision” of the state court with respect to
those claims. See Cheney v. Washington, 614 F.3d 987, 993, 995 (9th Cir.
2010).
20 ANDREWS V. DAVIS

distinction between the case before it and Supreme Court
caselaw, the law is not clearly established for the state-court
case.” Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir. 2010).
“[I]f a habeas court must extend a rationale before it can
apply to the facts at hand, then by definition the rationale was
not clearly established at the time of the state-court decision.”
White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (internal
quotation marks omitted). A principle is clearly established
law governing the case “if, and only if, it is so obvious that a
clearly established rule applies to a given set of facts that
there could be no fairminded disagreement on the question.”
Id. at 1706–07 (internal quotation marks omitted).

A state court decision is “contrary to” Supreme Court
precedent if “the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases.” Williams
v. Taylor, 529 U.S. 362, 405 (2000). An “unreasonable
application” of Supreme Court precedent is not one that is
merely “incorrect or erroneous,” Lockyer v. Andrade,
538 U.S. 63, 75 (2003); see also Williams, 529 U.S. at 410;
rather, “[t]he pivotal question is whether the state court’s
application of the [relevant Supreme Court precedent] was
unreasonable,” Harrington v. Richter, 562 U.S. 86, 101
(2011) (emphasis added). If “‘fairminded jurists could
disagree’ on the correctness of the state court’s decision,” that
decision is not unreasonable. Id. at 101 (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). A state court
summary denial is an “unreasonable application” of Supreme
Court precedent only if “there was no reasonable basis,” id.
at 98, for the decision in light of the “arguments or theories
[that] . . . could have supported[] the state court’s decision,”
id. at 102.
 ANDREWS V. DAVIS 21

The Supreme Court has made clear that § 2254(d) sets
forth a “highly deferential standard[,] . . . which demands that
state-court decisions be given the benefit of the doubt.”
Pinholster, 131 S. Ct. at 1398 (internal quotation marks
omitted). “As amended by AEDPA, § 2254(d) stops short of
imposing a complete bar on federal-court relitigation of
claims already rejected in state proceedings,” but only
“preserves authority to issue the writ in cases where there is
no possibility fairminded jurists could disagree that the state
court’s decision conflicts with this Court’s precedents” and
“goes no further.” Richter, 562 U.S. at 102. “[E]ven a strong
case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. In a nutshell, “[i]f this
standard is difficult to meet, that is because it was meant to
be.” Id. at 102.

B

The clearly established federal law for ineffective
assistance of counsel claims, as determined by the Supreme
Court, is Strickland v. Washington, 466 U.S. 668 (1984), and
its progeny. See Pinholster, 131 S. Ct. at 1403. Strickland
concluded that, under the Sixth Amendment, the accused has
the right to the effective assistance of counsel at trial and
during capital sentencing proceedings. 466 U.S. at 684–87.
A petitioner claiming ineffective assistance of counsel must
prove: (1) that “counsel’s performance was deficient,” and
(2) that “the deficient performance prejudiced the defense.”
Id. at 687. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.” Id. at 697. Rather, “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
22 ANDREWS V. DAVIS

should be followed.” Id. In short, a court need not address
the two Strickland prongs in order; if ruling on the prejudice
prong more efficiently resolves the case, reaching the
deficiency prong is unnecessary. Id.

In determining whether a state court’s adjudication of an
ineffective assistance of counsel claim was an unreasonable
application of Supreme Court precedent, we may consider
how the Supreme Court itself has applied Strickland to other
factual contexts, but this is merely “illustrative of the proper
application of [Strickland’s] standards.” See Wiggins v.
Smith, 539 U.S. 510, 522 (2003); see also Pinholster, 131 S.
Ct. at 1407 n.17; Brian R. Means, Federal Habeas Manual
§ 3:29 (2014). The Supreme Court has warned us not to
derive “strict rules” from its cases applying Strickland de
novo because “the Strickland test ‘of necessity requires a
case-by-case examination of the evidence.’” Pinholster, 131
S.Ct. at 1407 & n.17 (quoting Williams, 529 U.S. at 391).
Further, Supreme Court cases decided on de novo review
“offer no guidance with respect to whether a state court has
unreasonably determined that prejudice is lacking” or defense
counsel was deficient, and so are not directly applicable to a
federal court’s review under § 2254(d)(1) of a habeas
petitioner’s claim that a state court unreasonably applied
Strickland. Id. at 1411. Indeed, a state court’s application of
Strickland may be objectively reasonable based on clearly
established Supreme Court precedent at the time of its
decision even if the Supreme Court’s subsequent applications
of Strickland suggest a different result. By contrast, when the
Supreme Court addresses the AEDPA question whether a
state court’s adjudication of an ineffective assistance of
counsel claim was an unreasonable application of Strickland,
its reasoning guides a federal court’s AEDPA analysis
regardless of when the opinion was issued.
 ANDREWS V. DAVIS 23

The Supreme Court has provided guidance for applying
Strickland to determine whether counsel’s “deficient
performance prejudiced the defense,” Strickland, 466 U.S. at
687, at the penalty phase of a capital case. To make this
prejudice determination, a court generally proceeds through
three steps: (1) evaluating and weighing the totality of the
available mitigation evidence, see Williams, 529 U.S. at
397–98; Pinholster, 131 S. Ct. at 1408–10; (2) evaluating and
weighing the aggravating evidence and any rebuttal evidence
that could have been adduced by the government had the
mitigating evidence been introduced, Williams, 529 U.S. at
397–98; Pinholster, 131 S.Ct. at 1408–10, and (3) reweighing
the evidence in aggravation against the totality of available
mitigating evidence, see Sears v. Upton, 561 U.S. 945,
955–56 (2010) (per curiam); Wiggins, 539 U.S. at 534;
Williams, 529 U.S. at 397–98, to determine “whether there is
a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death,” Strickland,
466 U.S. at 695. We explain the Supreme Court’s guidance
on each of these steps.

1

The first step in determining whether counsel’s deficient
performance prejudiced the defendant at the penalty phase is
evaluating “the totality of the available mitigation evidence.”
Williams, 529 U.S. at 397–98. The evidence to be evaluated
includes both evidence that was actually presented at
sentencing and evidence that a competent attorney would
have introduced. See Wiggins, 539 U.S. at 534–35. We may
assume that a competent attorney would have considered
presenting all of the evidence adduced in post-conviction
24 ANDREWS V. DAVIS

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

Mitigation evidence is a broad category, as a jury must be
permitted to consider all relevant mitigating factors. Lockett
v. Ohio, 438 U.S. 586, 608 (1978) (plurality opinion);
Eddings v. Oklahoma, 455 U.S. 104, 110–12 (1982). The
Supreme Court has identified several non-exclusive
categories of mitigation evidence, focusing primarily on
evidence that aids the jury’s evaluation of a defendant’s
moral culpability. See Wiggins, 539 U.S. at 535. For
instance, evidence of a defendant’s disadvantaged
background may lead a jury to conclude the defendant is “less
culpable than defendants who have no such excuse.” Penry
v. Lynaugh, 492 U.S. 302, 319 (1989) (internal quotation
marks omitted), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002). Thus, a defendant who had a
childhood “filled with abuse and privation,” including being
raised by parents who were eventually imprisoned for
criminal child neglect, could influence a jury’s appraisal of
the defendant’s moral culpability. Williams, 529 U.S at 395,
398; see also Wiggins, 539 U.S. at 535 (mitigating evidence
included evidence that the defendant suffered severe privation
and abuse as a child, had an alcoholic and absent mother, was
physically and sexually abused in foster care, and was
homeless for a brief period); Rompilla v. Beard, 545 U.S.
374, 391–93 (2005) (mitigating evidence included evidence
that the defendant was raised in a slum by severely abusive,
alcoholic parents, who did not provide for him and isolated
him).

Similarly, evidence of a defendant’s mental or emotional
difficulties may lead a jury to conclude that a defendant is
less culpable than defendants without such difficulties.
 ANDREWS V. DAVIS 25

Penry, 492 U.S. at 319. For instance, evidence that a
defendant is “borderline mentally retarded,” Williams,
529 U.S. at 396 (internal quotation marks omitted), or has
severe PTSD from military combat, see Porter v. McCollum,
558 U.S. 30, 35–36 & n.4, 43–44 (2009), or has severe
learning and behavioral disabilities, frontal lobe injuries, and
brain damage from drug and alcohol abuse, see Sears,
561 U.S. at 948–49, is potentially mitigating evidence.

Evidence of conduct or behavior demonstrating the
defendant’s good character may also be mitigating. In
Williams, the Court gave weight to evidence that the
defendant had turned himself in, alerted police to a previously
undetected crime, expressed remorse, cooperated with police,
and behaved well in prison. 529 U.S. at 369, 396, 398. In
Belmontes, the Court noted mitigation evidence that the
defendant had maintained strong relationships with family
members in spite of his terrible childhood, and that while in
prison, he assisted others through a prison religious program
and rose to second in command in a fire crew. 558 U.S. at
21.

After identifying the evidence that the petitioner claims to
be mitigating, a court must weigh its strength by assessing its
likely impact on a jury. This weighing process includes
evaluating whether its impact on the jury might be
aggravating rather than mitigating. See Pinholster, 131 S. Ct.
at 1410. The Supreme Court has indicated that courts can
consider the fact that mitigation “may be in the eye of the
beholder,” and juries may find that some evidence offered as
mitigation cuts the other way. Burger v. Kemp, 483 U.S. 776,
794 (1987) (alterations and internal quotation marks omitted).
In Burger, the Court noted that “[o]n one hand, a jury could
react with sympathy over the tragic childhood” of the
26 ANDREWS V. DAVIS

defendant, while on the other hand, the same testimony could
establish the defendant’s “unpredictable propensity for
violence” that resulted in murder. Id. (internal quotation
marks omitted). Similarly, evidence of mental and emotional
problems might suggest an increased likelihood that a
defendant would be dangerous in the future. See Pinholster,
131 S. Ct. at 1410 (noting that evidence of the defendant’s
family background, their substance abuse, and their mental
health issues, was “by no means clearly mitigating, as the jury
might have concluded that [the defendant] was simply beyond
rehabilitation”). The Court has also observed that evidence
of the defendant’s normal youth might, in the jury’s eyes,
establish greater moral culpability on the part of the
defendant. See Bell v. Cone, 535 U.S. 685, 701–02 (2002).

2

The second step in determining whether counsel’s
deficient performance prejudiced the defendant at the penalty
phase is evaluating the weight of the aggravating evidence
and any rebuttal evidence that could have been adduced by
the government had the mitigating evidence been introduced.
See Williams, 529 U.S. at 397–98; Pinholster, 131 S. Ct. at
1408–10. Aggravating evidence may include evidence
relating to the circumstances of the crime. Thus in
Strickland, the Court found the aggravating evidence to be
“overwhelming” where the defendant had repeatedly stabbed
the three murder victims during a robbery. 466 U.S. at 674,
700. Similarly, where the record showed that the defendant
had bludgeoned a woman to death with 15 to 20 blows of a
steel dumbbell bar to steal goods worth a mere $100, the
Supreme Court agreed with the state court that the
aggravating evidence was “simply overwhelming” and
determined that counsel’s failure to introduce certain
 ANDREWS V. DAVIS 27

mitigating evidence was not prejudicial. Belmontes, 558 U.S.
at 15–16, 26–27 (internal quotation marks omitted). In Bobby
v. Van Hook, the Supreme Court gave weight to evidence that
the murder was committed in the course of a scheme to rob
homosexual men by luring them into secluded settings.
558 U.S. 4, 12–13 (2009) (per curiam). In doing so, the
Court clarified that the weight, not the number, of the
aggravating factors was important. Id.

Evidence about a defendant’s prior criminal history is also
aggravating and can be introduced in rebuttal, and a severe
criminal history carries great weight. See Woodford v.
Visciotti, 537 U.S. 19, 26–27 (2002) (criminal history that
included “the knifing of one man, and the stabbing of a
pregnant woman as she lay in bed trying to protect her unborn
baby,” combined with the circumstances of the crime, was
“overwhelming” and “devastating” aggravating evidence);
accord Bell, 535 U.S. at 700 & n.5 (defense counsel
reasonably feared the prosecution would elicit information
about defendant’s criminal history, which included robberies,
in rebuttal); Burger, 483 U.S. at 793 (defense counsel
reasonably feared the prosecution would introduce the
defendant’s juvenile criminal history in rebuttal, when he had
a clean adult record). Evidence that a defendant had
previously committed another murder may be “the most
powerful imaginable aggravating evidence.” Belmontes,
558 U.S. at 28 (internal quotation marks omitted).

Rebuttal evidence may also directly undermine the value
of the mitigation evidence. For example, the Supreme Court
noted in Pinholster that it would be “of questionable
mitigating value” for defense counsel to introduce expert
testimony diagnosing a defendant with bipolar mood disorder
and seizure disorders, because such evidence would invite
28 ANDREWS V. DAVIS

rebuttal by a state expert, who could reject the diagnosis of
bipolar disorder and offer a different diagnosis of antisocial
personality disorder. Pinholster, 131 S. Ct. at 1396, 1410.

3

Finally, the third step in determining whether counsel’s
deficient performance prejudiced the defendant at the penalty
phase is to “reweigh the evidence in aggravation against the
totality of available mitigating evidence,” Wiggins, 539 U.S.
at 534, in order to determine “whether there is a reasonable
probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death,” Strickland, 466 U.S. at
695. A “reasonable probability” is a level of probability that
“undermine[s] confidence in the outcome.” Id. at 694.
However, counsel’s deficient performance is not prejudicial
merely because the court cannot “rule out” the possibility
that the sentencer would have imposed a sentence of life in
prison instead of the death penalty. Belmontes, 558 U.S. at
20, 27 (internal quotation marks omitted); see also Richter,
562 U.S. at 111 (“In assessing prejudice under Strickland, the
question is not whether a court can be certain counsel’s
performance had no effect on the outcome . . . .”). Rather,
“[t]he likelihood of a different result must be substantial, not
just conceivable.” Richter, 562 U.S. at 112 (citing Strickland,
466 U.S. at 693). Thus, “the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is
slight and matters ‘only in the rarest case.’” Id. (quoting
Strickland, 466 U.S. at 697).

The Court has found a reasonable probability of a
different outcome when only scant and weak aggravating
evidence could have been presented in rebuttal to strongly
 ANDREWS V. DAVIS 29

mitigating evidence. See Wiggins, 539 U.S. at 534–36,
537–38 (holding that there was a reasonable probability that
the jury would have reached a different result at sentencing
had it heard powerful mitigating evidence regarding the
defendant’s childhood background, when the state could have
presented only weak rebuttal evidence). By contrast, the
Court has found no prejudice when the aggravating evidence
is overwhelming, even though the mitigating evidence is
strong. See Visciotti, 537 U.S. at 26–27 (holding that there
was no reasonable probability of a different result when the
mitigating evidence, including the defendant’s “troubled
family background” and possible seizure disorder, did not
outweigh the “overwhelming” aggravating factors, including
the circumstances of the crime and potential rebuttal evidence
of prior offenses).

In reweighing aggravating and mitigating evidence, the
Court has also examined whether mitigating evidence would
be merely cumulative or would have significantly altered the
information provided to the sentencer. See Strickland,
466 U.S. at 699–700; Porter, 558 U.S. at 41–42. In
Strickland, the new information “would barely have altered”
the picture presented at sentencing, and the Court found no
prejudice. 466 U.S. at 699–700. Similarly, in Belmontes, the
Court concluded that merely cumulative evidence regarding
a petitioner’s difficult childhood, and expert testimony
regarding a petitioner’s mental state “seeking to explain his
behavior, or putting it in some favorable context” would not
outweigh the facts of a brutal murder, and would be even less
likely to outweigh evidence that the defendant had committed
a prior murder. 558 U.S. at 22–24, 27–28. Accordingly, the
Court concluded that any failure of counsel to present
additional mitigating evidence was not prejudicial. Id. at 27.
30 ANDREWS V. DAVIS

These Supreme Court opinions suggest that under
Strickland’s prejudice prong, cumulative mitigating evidence
does not support a conclusion that there would be a
reasonable probability of a different outcome. New
mitigating evidence can support such a conclusion only if it
is sufficiently strong, and the known or additional
aggravating evidence is not overwhelming.

C

In light of this guidance, we now evaluate the California
Supreme Court’s rejection of Andrews’s claim that he was
prejudiced by his counsel’s failure to investigate and present
additional mitigating evidence at the penalty phase of his
trial. We must determine whether this decision was “contrary
to, or involved an unreasonable application of,” Strickland or
other Supreme Court precedent in existence at the time of its
opinion. § 2254(d)(1); see Pinholster, 131 S. Ct. at 1399.

In considering whether any deficiency by Andrews’s
counsel was prejudicial, the California Supreme Court
correctly followed Strickland in asking whether, even if
counsel was deficient, Andrews’s defense was not prejudiced
by any such deficiency because a different result was not
reasonably probable.5 See In re Andrews, 52 P.3d at 671

5
Andrews argues that the state court failed to apply the correct legal
standard established in Tennard v. Dretke, 542 U.S. 274 (2004) and Smith
v. Texas, 543 U.S. 37 (2004), because it dismissed Andrews’s mitigating
evidence on the ground that the evidence was not unambiguously
mitigating, and implied that there must be some connection between the
mitigating evidence not introduced at the penalty phase and the crimes.
We disagree. Tennard and Smith require a sentencer to have the
opportunity to consider and give effect to all relevant mitigating evidence,
but do not specify what weight the sentencer must give such evidence.
 ANDREWS V. DAVIS 31

(quoting Strickland, 466 U.S. at 694). The California
Supreme Court then reasonably carried out the three steps
indicated by Supreme Court opinions for evaluating prejudice
at the penalty phase.

1

The court first considered the totality of the mitigating
evidence presented at trial, as well as what mitigation could
have been presented by a competent attorney, based on the
six-year review and report by the referee. See Williams,
529 U.S. at 397–98. The court reviewed all of the mitigating
evidence that Andrews presented, including Andrews’s
family background, In re Andrews, 52 P.3d at 660, 670,
incarceration in Mt. Meigs and in Alabama prisons,6 id. at

See Eddings, 455 U.S. at 114–15 (“The sentencer . . . may determine the
weight to be given relevant mitigating evidence. But [courts] may not give
it no weight by excluding such evidence from their consideration.”).
Here, the California Supreme Court correctly considered all mitigating
evidence before weighing its likely effect on a jury. See Pinholster,
131 S. Ct. at 1410.
6
Andrews’s claim that the state court failed to consider his experiences
at Mt. Meigs, is not supported by the record. The state court detailed
Andrews’s experiences at Mt. Meigs when discussing mitigating evidence
that could have been presented, noting that “[a]t Mt. Meigs, [Andrews]
encountered appalling conditions” and detailing the referee’s findings that
Andrews was “was subjected to beatings, brutality, inadequate conditions
and sexual predators,” that “[h]is passiveness and small physique caused
him to be a target of older, tougher boys, from whom no protection or
separation was provided,” and that “Mt. Meigs failed to provide any
meaningful rehabilitative or educational opportunities.” In re Andrews,
52 P.3d at 660–61 (internal quotation marks omitted). The state court also
noted that expert testimony would have addressed his drug use at Mt.
Meigs. Id. at 661. Moreover, the state court’s use of the term “prison
32 ANDREWS V. DAVIS

660–61, 670–71, and mental health evidence, id. at 661–62,
670, observing that the similar types of mitigating evidence
have been considered in Supreme Court precedent, id. at
672–75; see Penry, 492 U.S. at 319; Williams, 529 U.S. at
395–98.

The California Supreme Court then evaluated the strength
of this mitigating evidence by considering, among other
things, whether it might be viewed by a jury as aggravating.
See Burger, 483 U.S. at 793; Pinholster, 131 S. Ct. at 1410.
It reasonably concluded that much of the evidence identified
as mitigating “was not conclusively and unambiguously
mitigating,” and it evaluated the possibility that the evidence
could be rebutted or used to Andrews’s disadvantage, or that
cross examination might “deflate the mitigating impact” of
the evidence. In re Andrews, 52 P.3d at 670 & n.9. The court
reasonably observed that a jury could have determined that
Andrews’s family background did not reduce his moral
culpability, given that Andrews was raised in a non-abusive,
stable family situation. Id. at 670; cf. Bell, 535 U.S. at
701–02 (suggesting that evidence of a normal youth might
“cut the other way”). The court reasonably concluded that
“[Andrews] did not suffer a home environment that would
place his crimes in any understandable context or explain his
resorting to crime every time he was released or escaped from
prison.” Id. at 670.

In addition, the state court reasonably determined that the
evidence regarding the prison conditions was double-edged.
On the one hand, the prison conditions evidence left it in “no
doubt [that Andrews] endured horrifically demeaning and

conditions” in its opinion is consistent with its use in the referee’s report,
where the term referred to conditions both in prison and Mt. Meigs.
 ANDREWS V. DAVIS 33

degrading circumstances.” Id. On the other hand, the
evidence would be presented primarily through the testimony
of Andrews’s former fellow inmates, who had serious
criminal records that could “draw[] an unfavorable
comparison” with Andrews. Id. at 671. “Many had
themselves engaged in brutality while in prison and escaped
with some frequency,” also similar to Andrews. Id.
Moreover, no matter how the prison conditions evidence was
presented, “[r]ather than engendering sympathy, the evidence
could well have reinforced an impression of him as a person
who had become desensitized and inured to violence and
disrespect for the law.”7 Id.; cf. Pinholster, 131 S. Ct. at
1410.

2

After assessing the weight of the mitigating evidence and
its likely impact on a jury, the state court followed Supreme
Court guidance by turning to evaluate the weight of the
aggravating evidence at trial, as well as any additional
rebuttal evidence that could have been introduced. See
Williams, 529 U.S. at 397–98; Belmontes, 558 U.S. at 20,
24–28. Consistent with Supreme Court precedent, the state
court considered the circumstances of Andrews’s crime and
the nature of his prior criminal history. Turning to the
circumstances of the crimes, the state court stated that the
murders showed a “callous disregard for human life.” In re

7
Andrews argues that the state court made an unreasonable
determination of the facts, see § 2254(d)(2), in holding that the prison
conditions evidence could be aggravating. We reject this argument,
because the state court’s conclusion is a reasonable application of the
prejudice standard elaborated by Strickland and its progeny, not a factual
finding. Cf. Pinholster, 131 S. Ct. at 1410.
34 ANDREWS V. DAVIS

Andrews, 52 P.3d at 671; cf. Strickland, 466 U.S. at 674, 700;
Belmontes, 558 U.S. at 15, 26–27. Andrews did not
impulsively react to a situation that got out of hand; rather, he
interacted with the victims in a calm and normal manner
before torturing and killing them. In re Andrews, 52 P.3d at
671. He also did more than simply kill the victims. He raped
and sodomized Brandon before murdering her, and he also
murdered Wheeler and Chism with “considerable violence
and evident sangfroid.” Id. The state court also considered
that, as rebuttal evidence, the prosecution could have
presented the details of Andrews’s criminal history, cf. Bell,
535 U.S. at 700 & n.5; Burger, 483 U.S. at 793, from which
the jury might conclude Andrews was “aggressive and
desensitized to violence,” In re Andrews, 52 P.3d at 669. The
jury might also have concluded that this “pattern of
criminality” showed Andrews “would pose a danger to others
if he were sentenced to life imprisonment.”8 Id. Also, the

8
Andrews argues that the state court’s conclusion that the evidence gave
rise to the inference of future dangerousness was an unreasonable
determination of the facts. He argues that the prison stabbings, laundry
robbery, and conditioning to violence during his prison experiences do not
support such an inference, pointing to mitigating facts found by the
referee, including that in some incidents, Andrews was defending himself
against inmates who had been threatening him. We disagree. The state
court considered these mitigating facts (such as evidence that in prison
Andrews was “the prey rather than the predator” and acted in self
defense), see In re Andrews, 52 P.3d at 660–61, and reasonably concluded
that the evidence that Andrews was conditioned to violence during his
prison experiences was an aggravating, not mitigating, circumstance, see
Burger, 483 U.S. at 793 (noting that evidence of a petitioner’s troubled
family background could also “suggest violent tendencies” that could
affect the jury adversely). Because the state court reasonably concluded
that the jury could have found future dangerousness even had the
mitigating evidence been introduced, the state court did not unreasonably
apply Supreme Court precedent in weighing how the evidence might
impact a jury.
 ANDREWS V. DAVIS 35

references to Andrews’s multiple escapes from prison might
have been “inflammatory.” Id.

Finally, the state court reasonably concluded that the
prosecution could have presented its own mental health
experts in rebuttal, and could have used the mental health
evidence to Andrews’s disadvantage on cross examination.
Id. at 670. The court noted the referee’s findings that
prosecution experts could have testified that Andrews had
normal intelligence and did not suffer brain damage, but had
antisocial personality traits.9 Id.; cf. Pinholster, 131 S. Ct. at
1396, 1410. Nor was the state court unreasonable in
concluding that Andrews’s experts’ testimony could backfire.
For instance, the court noted that the “compelling” testimony
from one of Andrews’s expert psychiatric witnesses, opining
that Andrews’s prison experience caused him to react with
rage to perceived insults, could cause a jury to conclude that
Andrews “was unable to control lethal impulses on the
slightest provocation.” In re Andrews, 52 P.3d at 670; cf.
Pinholster, 131 S. Ct. at 1410. Finally, the presentation of the
mental health evidence would have given the prosecutor
additional opportunities to repeat the circumstances of these
crimes as well as Andrews’s past criminality. In re Andrews,
52 P.3d at 670.

9
Andrews argues that the state court unreasonably applied Eddings,
455 U.S. at 114–15, in concluding that a diagnosis of antisocial
personality disorder is not mitigating. Eddings is not on point, because it
merely held that a court cannot prevent a jury from hearing such evidence.
Id. The state court did not unreasonably apply Eddings, or any other
Supreme Court precedent, by observing that evidence that Andrews had
antisocial personality disorder might make him less sympathetic to the
jury. In re Andrews, 52 P.3d at 670–71.
36 ANDREWS V. DAVIS

3

After evaluating the mitigating and aggravating evidence,
the state court re-weighed it and assessed whether it was
reasonably probable that, in the absence of any deficient
performance by counsel, the sentencer “would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S.
at 695; see In re Andrews, 52 P.3d at 671–75. The state court
applied the relevant Supreme Court precedent, and concluded
that Andrews was not “prejudiced by counsel’s rejection of
a defense premised on evidence of [Andrews]’s upbringing,
the Alabama prison conditions he experienced, and his mental
health in light of the circumstances of the crimes, given the
ambiguous nature of some mitigating evidence and the
substantial potential for damaging rebuttal.” Id. at 671.

Relying on the Supreme Court’s decisions in Williams
and Porter, Andrews argues that the California Supreme
Court’s decision on the issue of prejudice was an
unreasonable application of Strickland.10 In Williams, the
Supreme Court held that the state court applied the wrong
legal standard, 529 U.S. at 395–97, and so applied Strickland
de novo to the facts of that case, id. at 397–98; see also
Pinholster, 131 S. Ct. at 1410–11. The state court here
discussed Williams at length and reasonably distinguished it
as having “substantially dissimilar facts.” In re Andrews,
52 P.3d at 675. In Williams, for instance, the defense counsel
could have introduced strong character evidence, 529 U.S. at

10
While Andrews cites other Supreme Court and Ninth Circuit cases, his
argument focuses primarily on Williams and Porter. Because other cases
cited by Andrews are non-binding, not factually analogous, or both, we do
not address them here.
 ANDREWS V. DAVIS 37

398, but no comparable evidence of good character was
present in Andrews’s case.11 The defendant’s “nightmarish
childhood” in Williams, 529 U.S. at 395, 398, was far worse
than Andrews’s relatively stable family background, see In re
Andrews, 52 P.3d at 674. The defendant in Williams was
“borderline mentally retarded,” 529 U.S. at 396, 398 (internal
quotation marks omitted), while the prosecution could have
presented evidence that Andrews was not mentally impaired,
but rather had antisocial personality traits, In re Andrews,
52 P.3d at 670. The only rebuttal evidence in Williams was
the defendant’s three juvenile convictions, 529 U.S. at 396,
compared to Andrews’s robbery-murder, hostage taking, and
history of escape from prison, In re Andrews, 52 P.3d at 675.
Finally, the circumstances of the crime in Williams were less
brutal than Andrews’s triple murder, id., because the
defendant in Williams killed the severely inebriated victim
with one blow each to the chest and back after an argument,
529 U.S. at 367–68 & n.1. Because the facts of Williams are
dissimilar, the Supreme Court’s determination in Williams
that counsel’s ineffective assistance was prejudicial does not
make the state court’s contrary conclusion here unreasonable.
See Richter, 562 U.S. at 101–02; see also Pinholster, 131 S.
Ct. at 1410–11.

Andrews also argues that the state court’s decision was
unreasonable in light of Porter. Although Porter was decided
years after the California Supreme Court’s opinion in this
case, we give it careful consideration, because it provides
direction for determining under AEDPA what constitutes an
unreasonable application of Strickland. In Porter, the

11
Andrews points to evidence that he appeared to adjust well to the
Alabama prison system when conditions permitted, but this observation
is weaker than the evidence in Williams. See 529 U.S. at 396.
38 ANDREWS V. DAVIS

Supreme Court faulted the state court for failing to consider
all of the mitigating evidence regarding the defendant’s
family background, military service, and mental health issues.
For instance, the state court entirely discounted the effect that
evidence of the defendant’s brain abnormality and cognitive
defects might have on a jury. See Porter, 558 U.S. at 42–44.
Further, the state court unreasonably discounted mitigating
evidence of childhood abuse and the defendant’s long record
of military service. Id. at 43–44. Applying AEDPA, Porter
held that the state court had unreasonably applied Strickland
when it held that counsel’s failure to introduce this substantial
mitigation evidence was not prejudicial. Id. at 44.

The state court’s determinations in Porter are not closely
analogous to the state court’s determinations in this case.
Unlike the state court in Porter, the state court here
considered all mitigation evidence in the record and did not
fail to consider or “discount to irrelevance” significant
evidence. See Porter, 558 U.S. at 43. The mitigation
evidence in Porter, including that the defendant served in
“horrific” battles of the Korean War, suffered childhood
physical abuse, and had a brain abnormality, see id. at 41, is
less subject to rebuttal than the mitigation evidence in this
case, see In re Andrews, 52 P.3d at 670–71. Unlike here,
where the state’s mental health expert disagreed with the
defense experts’ conclusions and added a diagnosis of
antisocial personality disorder, see id. at 670, in Porter, state
experts could not rule out the defense experts’ mental health
diagnosis, and the state court erred by failing to consider this
evidence at all, see 558 U.S. at 36, 42–43. Likewise,
evidence that the defendant had gone AWOL did not
diminish evidence of his military service to “inconsequential
proportions,” because our nation has a tradition of “according
leniency to veterans,” and the evidence was “consistent with
 ANDREWS V. DAVIS 39

[the] theory of mitigation and [did] not impeach or diminish
the evidence of his service.” Id. at 43–44 (internal quotation
marks omitted). Here, by contrast, the state court found that
Andrews “endured horrifically demeaning and degrading
circumstances” in prison before acknowledging this evidence
was “double-edged,” because it would also bring before the
jury Andrews’s history of violence both in and out of prison
and his escapes, which would be emphasized by their
similarity to many of the witnesses who would testify for
him. In re Andrews, 52 P.3d at 670–71. Further, while the
state court here reasonably determined that the prosecution
could introduce damaging aggravating evidence, id. at 671,
675, in Porter, the Supreme Court held that the amount of
aggravating evidence would be reduced, because one of the
aggravating factors was invalid, 558 U.S. at 42. Because
Porter is factually distinct from this case, it has little bearing
on the question whether the state court unreasonably applied
the prejudice prong of Strickland.12

Visciotti, another Supreme Court case that provides
direction for determining under AEDPA what constitutes an
unreasonable application of Strickland, is more closely on
point. In Visciotti, the Supreme Court considered a state
court’s rejection of a defendant’s Strickland claim. 537 U.S.
at 26. The state court had weighed the mitigating evidence,
including the defendant’s brain damage, difficult family

12
Andrews also urges us to apply our recent decision in Doe v. Ayers,
782 F.3d 425 (9th Cir. 2015), where we concluded that the defendant was
prejudiced by counsel’s deficient performance in failing to investigate and
present mitigating evidence, including evidence of his rape in prison. Doe
v. Ayers is not pertinent to our analysis here because it is a pre-AEDPA
case that does not examine whether the state court’s conclusion was
unreasonable. See id. at 446, n.31. Nor is Doe clearly established law as
determined by the Supreme Court. See § 2254(d)(1).
40 ANDREWS V. DAVIS

background, and possible seizure disorder, against the
aggravating factors, including the circumstances of the crime
(the cold-blooded killing of two victims during a robbery)
and his criminal history of knifing a man and stabbing a
pregnant woman in bed “trying to protect her unborn baby,”
and concluded that the defendant had suffered no prejudice.
See id. at 25–26. After the defendant filed a habeas petition,
the district court granted relief and we affirmed. We
reasoned that counsel’s deficient performance was
prejudicial, because the “aggravating factors were not
overwhelming.” Id. at 21–22, 25 (quoting Visciotti v.
Woodford, 288 F.3d 1097, 1118 (9th Cir. 2002)). The
Supreme Court reversed. It explained that “under
§ 2254(d)(1), it is not enough to convince a federal habeas
court that, in its independent judgment, the state-court
decision applied Strickland incorrectly.” Id. at 27 (internal
quotation marks omitted). Rather, “[t]he federal habeas
scheme leaves primary responsibility with the state courts for
these judgments, and authorizes federal-court intervention
only when a state-court decision is objectively unreasonable.
It is not that here.” Id. In sum, the Court held that “[w]hether
or not we would reach the same conclusion as the California
Supreme Court, we think at the very least that the state
court’s contrary assessment was not ‘unreasonable.’” Id.
(quoting Bell, 535 U.S. at 701) (internal quotation marks
omitted).

Here, as in Visciotti, the state court reweighed Andrews’s
mitigating evidence against the brutal circumstances of the
crime and Andrews’s prior criminal history, and determined
there was no reasonable probability that the sentencer would
determine that “the balance of aggravating and mitigating
factors did not warrant imposition of the death penalty.” Id.
at 22 (internal quotation marks omitted). This decision was
 ANDREWS V. DAVIS 41

not objectively unreasonable, and therefore we are bound to
conclude that “[w]hether or not we would reach the same
conclusion,” we cannot say the California Supreme Court’s
conclusion was an unreasonable application of Strickland.
See id. at 27.

Because the state court’s rejection of Andrews’s penalty
phase ineffective assistance of counsel claim was not contrary
to or an unreasonable application of Supreme Court
precedent, we may not grant relief on this claim.
§ 2254(d)(1). We therefore reverse the district court’s
contrary conclusion.13

III

Having addressed the state’s cross-appeal, we now turn to
Andrews’s appeal of the district court’s dismissal of his sole
certified claim (Claim 25) that California’s use of its lethal
injection protocol to execute him would violate his Eighth
Amendment rights. According to the district court, the
California lethal injection protocol mirrored the Kentucky
lethal injection protocol upheld by the Supreme Court against
an Eighth Amendment challenge in Baze v. Rees, 553 U.S. 35
(2008). The court reasoned that in light of Baze’s ruling, it
would be impossible for Andrews to succeed on his challenge
to California’s lethal injection protocol, and therefore rejected
this claim.

13
Because we decide Andrews’s claim on prejudice grounds, we need
not address the parties’ arguments regarding whether counsel’s
performance was deficient at the penalty phase. Strickland, 466 U.S. at
697. We also need not consider the additional aggravating evidence put
forth by the state, which Andrews disputes, and therefore deny the state’s
motion for judicial notice of these additional materials.
42 ANDREWS V. DAVIS

At the time the district court ruled in July 2009, California
did not have a lethal injection protocol in place. As explained
in Sims v. Dep’t of Corrections, the California Department of
Corrections and Rehabilitation (CDCR) has the responsibility
for developing a procedure for executions by lethal injection.
216 Cal. App. 4th 1059, 1064 (2013). In December 2006, a
federal district court ruled that CDCR’s procedure violated
the Eighth Amendment prohibition against cruel and unusual
punishment. Id. (citing Morales v. Tilton, 465 F. Supp. 2d
972 (N.D. Cal. 2006)). Although the CDCR substantially
revised its protocol in 2007, a state trial court invalidated the
revised procedure on the ground that it violated the state’s
administrative procedure act. Id. After losing its appeal,
CDCR promulgated a new procedure, which took effect on
August 29, 2010. Id. at 1064–65. In response to a new legal
challenge, a trial court again invalidated the CDCR lethal
injection procedure for failure to comply with the state
administrative procedure act and permanently enjoined the
CDCR from administering executions by lethal injection until
it promulgated new regulations. Id. at 1066–67. This
injunction was upheld on appeal. Id. at 1083–84. Andrews’s
supplemental brief on appeal informed the court that
California had no lethal injection protocol in place as of
November 12, 2014, and the parties have not informed us of
any change since that date. Our research reveals none.14

It is premature to rule on the constitutionality of a state’s
lethal injection protocol if the state does not have one in
place. See Payton v. Cullen, 658 F.3d 890, 893 (9th Cir.

14
Pursuant to a settlement agreement approved by a state court in June
2015, the CDCR agreed to begin the process of promulgating a new lethal
injection protocol. Winchell v. Beard, No. 34-2014-80001968 (Cal. Super.
Ct. June 3, 2015).
 ANDREWS V. DAVIS 43

2011). Therefore, the district court erred in entertaining this
claim, and we dismiss it as unripe.15

IV

Andrews also raises several uncertified claims based on
the following legal theories: (1) unconstitutional delay
between sentencing and execution under Lackey v. Texas,
514 U.S. 1045 (1995) (Stevens, J., statement respecting
denial of certiorari); (2) ineffective assistance of counsel
under Strickland; (3) failure to disclose material exculpatory
evidence and false testimony under Brady v. Maryland,
373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264, 269
(1959); and (4) destruction of evidence in violation of due
process under California v. Trombetta, 467 U.S. 479 (1984),
and its progeny. He also raises uncertified claims based on
cumulative error and factual innocence.

We first turn to the question whether Andrews must
obtain a COA for these claims under 28 U.S.C. § 2253(c).16

15
In light of this holding, we need not reach Andrews’s claims that the
district court erred in denying him an evidentiary hearing on Claim 25 or
in declining to stay this claim to allow him to rely on evidence presented
in Morales.
16
Section 2253(c) states:

(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken
to the court of appeals from–

(A) the final order in a habeas corpus proceeding
in which the detention complained of arises out of
process issued by a State court; or
44 ANDREWS V. DAVIS

Our analysis of this question is governed by Jennings v.
Stephens, which considered whether a habeas petitioner who
obtained relief in the district court could defend this judgment
on alternate grounds without taking a cross-appeal and
obtaining a COA. 135 S. Ct. 793, 798 (2015). Jennings held
that a habeas petitioner in such circumstances need not take
a cross-appeal so long as the petitioner did not attempt to
defend the district court’s judgment on a theory that seeks “to
enlarge his rights or lessen the State’s under the District
Court’s judgment granting habeas relief.” Id. at 798,
801–02.17 Further, because “§ 2253(c) applies only when ‘an
appeal’ is ‘taken to the court of appeals,’” id. at 802 (quoting
§ 2253(c)), a petitioner who does not have to take a cross-
appeal does not need a COA, id. Applying this rule, Jennings
noted that the district court’s judgment granting the petitioner
relief at the penalty phase of his trial entitled him “to release,
resentencing, or commutation, at the State’s option.” Id. at
799. Accordingly, “[a]ny potential claim that would have
entitled [the petitioner] to a new sentencing proceeding could

(B) the final order in a proceeding under section
2255.

(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
right.

(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).
17
Jennings was nonetheless careful to note that a petitioner defending
his judgment on appeal would be “confined to those alternative grounds
present in the record: he may not simply argue any alternative basis,
regardless of its origin.” Jennings, 135 S. Ct. at 800.
 ANDREWS V. DAVIS 45

have been advanced to ‘urge . . . support’ of the judgment,”
id. at 800 (last alteration in original) (quoting United States
v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). Neither
a cross-appeal nor a COA would be required. Id. at 800–02.
By contrast, “[a] habeas applicant who has won resentencing
would be required to take a cross-appeal in order to raise a
rejected claim that would result in a new trial.” Id. at 800.
And “if a habeas applicant has won retrial below, a claim that
his conduct was constitutionally beyond the power of the
State to punish would require cross-appeal.” Id. In both such
cases, a COA would also have been required. See id. at 802.

Here, Andrews won relief at the district court based on his
theory of ineffective assistance of counsel during the penalty
phase of his trial. The district court ordered that “the State of
California shall, within 120 days from the entry of this
Judgment, either grant Petitioner a new penalty phase trial, or
vacate the death sentence and resentence the Petitioner in
accordance with California law and the United States
Constitution.” Accordingly, Andrews’s rights under this
judgment were for a new penalty phase trial or resentencing
within a fixed time, and Andrews may urge any potential
claim present in the record that would entitle him to a new
penalty phase trial or resentencing without taking a cross-
appeal or obtaining a COA. See id. at 800–02.

But none of Andrews’s uncertified claims support the
district court’s judgment. Five of his claims seek a new guilt
phase trial (his Strickland, Brady/Napue, Trombetta, and
cumulative error claims, and a factual innocence claim).18 As

18
While the Supreme Court has not ruled on the question whether a free-
standing claim of factual innocence is cognizable in habeas, it has
suggested that success on such a claim (if cognizable) would entitle a
46 ANDREWS V. DAVIS

explained in Jennings, because Andrews won resentencing,
he must take a cross-appeal and obtain a COA to raise a claim
that results in a new trial. Id. His Lackey claim seeks a ruling
that the death penalty cannot be constitutionally imposed on
him. Because the district court’s order gave the state the right
to seek the death penalty at a new penalty phase trial,
Andrews’s Lackey and factual innocence claims seek to
“lessen the State’s [rights] under the District Court’s
judgment granting habeas relief.” Id. at 798. Under
Jennings, Andrews must bring a cross-appeal and obtain a
COA to raise these claims as well.

We lack jurisdiction to consider uncertified claims unless
we determine that Andrews “has made a substantial showing
of the denial of a constitutional right” and grant a COA.
28 U.S.C. § 2253(c)(2); see also Ninth Circuit Rule 22-1(e)
(“Uncertified issues raised and designated [in a petitioner’s
opening brief] will be construed as a motion to expand the
COA . . . .”). This standard requires habeas petitioners to
make a “showing that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted). Because the statute is
jurisdictional, it does not permit “full consideration of the
factual or legal bases adduced in support of the claims”;
rather, courts may make only a “threshold inquiry” to
determine whether the statutory standard is met. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). As the Supreme Court
directed in Miller-El, rather than “[d]eciding the substance of

petitioner to a new guilt phase trial. Herrera v. Collins, 506 U.S. 390,
403, 405, 417 (1993).
 ANDREWS V. DAVIS 47

an appeal,” id. at 342, we “look to the District Court’s
application of AEDPA to petitioner’s constitutional claims,”
id. at 336, in light of a “fair interpretation of the record,” id.
at 345, and ask whether “reasonable jurists would find the
district court’s assessment of the constitutional claims
debatable or wrong,” id. at 338.

A

We first consider Andrews’s claim that his execution
would violate the Eighth Amendment due to the long delay
between his sentence and execution. Andrews did not raise
this claim in his opening brief on appeal, but moved to file a
supplemental brief raising this claim after a district court
issued a decision holding that under Furman v. Georgia,
408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153
(1976), California’s death penalty system violated the Eighth
Amendment because its “dysfunctional administration”
resulted in “inordinate and unpredictable” periods of delay
before execution, such that executions do not serve a
retributive or deterrent purpose and will be arbitrary. See
Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1061–62, 1069
(C.D. Cal. 2014). We granted his motion, and ordered the
state to respond.

In his brief, Andrews stated that he raised this claim to the
district court as Claim 26. In Claim 26, Andrews had argued
that executing him after 22 years on death row would be cruel
and unusual punishment in violation of the Eighth
Amendment and would serve no retributive or deterrent
penological purpose. Claim 26 also asserted that Andrews
did not cause any unnecessary delays, but merely sought to
vindicate his constitutional rights in a system that produced
48 ANDREWS V. DAVIS

delays. Andrews exhausted this claim by raising it to the
California Supreme Court, which summarily denied it.

The district court rejected this claim on the merits on the
ground that there has been no demonstration of “any support
in the American constitutional tradition or in [Supreme
Court] precedent for the proposition that a defendant can
avail himself of the panoply of appellate and collateral
procedures and then complain when his execution is
delayed,” a quote from Knight v. Florida, 528 U.S. 990
(1999) (Thomas, J., concurring in a denial of certiorari),
relied on by two Ninth Circuit cases, Smith v. Mahoney,
611 F.3d 978, 998 (9th Cir. 2010), and Allen v. Ornoski,
435 F.3d 946, 958 (9th Cir.2006), as evidence that no
Supreme Court precedent supports a claim of unconstitutional
delay.

On appeal, Andrews argues that the delay in carrying out
the death sentence makes California’s death penalty
unconstitutional both on its face and as applied to him. After
discussing in detail Jones’s reasoning and conclusion that the
California death penalty system is unconstitutional, Andrews
argues that no fairminded jurist could disagree with such a
conclusion in his case, because he has been continuously
confined under sentence of death for more than 30 years, and
the delays are caused by factors outside his control. Andrews
also points to separate statements by individual Supreme
Court justices questioning the constitutionality of the inherent
delay in capital cases. See, e.g., Muhammad v. Florida,
134 S. Ct. 894 (2014) (Breyer, J., dissenting from denial of
certiorari); Johnson v. Bredesen, 558 U.S. 1067 (2009)
(Stevens, J., joined by Breyer, J., statement respecting denial
of certiorari); Lackey, 514 U.S. 1045 (Stevens, J., statement
respecting denial of certiorari) (stating that a prisoner’s claim
 ANDREWS V. DAVIS 49

that his 17 years on death row violates the Eighth
Amendment’s prohibition against cruel and unusual
punishment was “not without foundation,” and encouraging
state and federal courts to consider the issue).

Before we can address this claim, we must consider
several procedural hurdles. As a threshold matter, Andrews
did not raise this claim in his opening brief on appeal. While
we generally deem a petitioner to have waived any issue not
raised in an opening brief, see United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992), we recognize exceptions
to this general rule. Such an exception is applicable here: the
state has fully briefed the issue and would suffer no prejudice.
See id. Therefore, we conclude we may address this issue.

Next, the state argues that Andrews’s claim was not fairly
presented to the California Supreme Court or the district
court, and so is both unexhausted and waived. “A federal
court may not grant habeas relief to a state prisoner unless he
has properly exhausted his remedies in state court.” Dickens
v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en banc)
(quoting Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir.
2003) (en banc)). Exhaustion of constitutional claims
requires that the claims be “fairly presented” in state court,
allowing the state courts an “opportunity to act on them.” Id.
at 1318 (alterations and internal quotation marks omitted).
To be fairly presented in state court, a claim must include:
1) “a statement of the facts that entitle the petitioner to
relief,” Gray v. Netherland, 518 U.S. 152, 162–63 (1996),
and 2) citations “to either a federal or state case involving the
legal standard for a federal constitutional violation,” Castillo
v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). “A claim
has not been fairly presented in state court if new factual
allegations either fundamentally alter the legal claim already
50 ANDREWS V. DAVIS

considered by the state courts, or place the case in a
significantly different and stronger evidentiary posture than
it was when the state courts considered it.” Dickens, 740 F.3d
at 1318 (citations and internal quotation marks omitted). Two
claims are distinct and must be separately exhausted if the
claims are based on the same facts, but are supported by
distinct constitutional theories. See Gray, 518 U.S. at
163–65. “[G]eneral appeals to broad constitutional
principles, such as due process, equal protection, and the right
to a fair trial, are insufficient to establish exhaustion.”
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). But
when claims are “sufficiently related” or “intertwined” so that
raising one clearly implies the other, exhausting one claim
will also exhaust the related claim, so long as the failure to
explicitly raise the related claim was not a “strategic choice.”
Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004)
(internal quotation marks omitted) (holding that exhaustion
of a procedural challenge to petitioner’s competency
determination exhausted a substantive challenge to the same
determination, though the two challenges relied on two
distinct Fifth Amendment theories); see also Wooten v.
Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008).

The state asserts that there is a distinction between the
sort of Eighth Amendment claim that Andrews raised to the
California Supreme Court and in district court (sometimes
referred to as a Lackey claim), and the Eighth Amendment
claim based on Jones he is raising here, such that the state
courts lacked an opportunity to consider it. Specifically, the
state argues that a Lackey claim is an individual challenge,
based on the theory that executing a prisoner who has spent
many years on death row violates the prohibition on cruel and
unusual punishment of that prisoner, while Jones was based
on the theory that the California system itself creates the
 ANDREWS V. DAVIS 51

constitutional infirmity, because inordinate delay makes the
system arbitrary and unable to serve a deterrent or retributive
purpose, in violation of the Eighth Amendment.

We disagree. Andrews’s claim before the state court, the
district court, and on appeal here is essentially the same
constitutional claim: that his right to be free from cruel and
unusual punishment under the Eighth Amendment is violated
by his lengthy incarceration while under a sentence of death.
Andrews has not introduced any new facts or evidence since
he raised this argument to the state court. Andrews’s
supplemental brief points to Jones’s conclusion that there are
systemic delays in imposing the death penalty throughout the
California system, but uses this conclusion to support his
Lackey claim that “inherent delay in capital cases” renders
executions unconstitutional. Accordingly, Andrews’s
references to Jones do not “fundamentally alter the legal
claim already considered by the state courts.” Dickens,
740 F.3d at 1318 (internal quotation marks omitted). We
therefore conclude that Andrews’s uncertified claim, as
briefed on appeal, is sufficiently related and intertwined with
Claim 26 such that Andrews’s exhaustion of Claim 26
likewise exhausted his current challenge. See Lounsbury,
374 F.3d at 788. Moreover, Andrews raised this same claim
to the district court. Accordingly, Andrews exhausted this
delay claim and did not waive it.

We now consider Andrews’s motion for a COA for this
claim. The district court denied Claim 26 because the state
court’s rejection of this claim was not an unreasonable
application of Supreme Court precedent. No reasonable jurist
would find the district court’s ruling debatable or wrong. See
Slack, 529 U.S. at 484. As we have previously stated, no
clearly established Supreme Court precedent holds that
52 ANDREWS V. DAVIS

inordinate delay in the execution of a capital defendant
constitutes cruel and unusual punishment in violation of the
Eighth Amendment. Allen, 435 F.3d at 958–60. Andrews
argues that the state court’s rejection of his delay claim is
contrary to Furman, 408 U.S. at 311–12 (White, J.,
concurring), and Gregg, 428 U.S. at 188 (plurality opinion).
But these cases articulate a general Eighth Amendment
standard that the death penalty is unconstitutional if imposed
arbitrarily, or if the penalty itself does not serve the
penological purposes of deterrence and retribution. These
principles do not “squarely address[]” the specific issue
raised by Andrews’s delay claim, and would require a
significant extension of the rationale of Furman and Gregg to
apply in this particular context. See Van Patten, 552 U.S. at
125–26. Therefore, the state court’s rejection of Andrews’s
delay claim was not an unreasonable application of Furman
or Gregg, and reasonable jurists would not dispute the district
court’s conclusion to that effect. See Woodall, 134 S. Ct. at
1706–07.

Because Andrews has not made a “substantial showing”
that his Eighth Amendment rights were violated, see
28 U.S.C. § 2253(c)(2), we deny a COA for this claim.

B

We next turn to Andrews’s four uncertified claims
alleging that trial counsel were ineffective under Strickland
for failing to investigate and present four categories of
evidence.

The first claim relates to the police’s investigation of
suspects before Sanders was arrested and agreed to testify
pursuant to a plea agreement. During the investigation,
 ANDREWS V. DAVIS 53

police officers took statements from at least nine witnesses
and informally interviewed many others who provided
information about activities in and around Wheeler’s
apartment in the days leading up to the murders. According
to these statements, Wheeler’s drug customers frequented his
apartment, disturbances were a regular occurrence, and
shootings had occurred in the apartment. The police did not
find any corroborating physical or testimonial evidence
suggesting that any of these drug customers was the killer.
When investigating Wheeler’s apartment, the police found
fingerprints of individuals who had been seen in the
apartment on the evening the murders occurred, but nothing
linking them to the crime. The police arrested one drug
dealer who worked with Wheeler, but ultimately released
him. When interrogated, this drug dealer denied murdering
Wheeler, but told the police that a Mexican Mafia member
had told him that the Mexican Mafia had murdered Wheeler.
He did not provide any corroborating evidence to support this
story.

Relying on this evidence, Andrews claims that his trial
counsel were ineffective for failing to investigate and present
evidence that third parties, such as Wheeler’s customers and
fellow dealers, had the motive and opportunity to commit the
murders due to their drug-related dealings with Wheeler. The
state court summarily rejected this claim when it denied
Andrews’s second state habeas petition. The district court
denied relief on this claim.

We conclude that reasonable jurists would not find
debatable or wrong the district court’s conclusion that this
claim fails under Strickland and AEDPA. See Slack,
529 U.S. at 484. The evidence adduced at trial was
overwhelming: Sanders, an eyewitness, testified to the events
54 ANDREWS V. DAVIS

of the murders, Brooks testified regarding Andrews’s
confession, and the evidence established that Andrews’s palm
prints were found on either side of Brandon’s body. In re
Andrews, 52 P.3d at 658. Accordingly, reasonable jurists
would not debate the reasonableness of the state court’s
conclusion that counsel’s failure to further investigate these
suspects did not prejudice Andrews’s defense. See
Strickland, 466 U.S. at 694.

Second, Andrews argues that counsel were ineffective for
failing to investigate or present evidence that semen found on
Brandon’s body could not have come from Andrews. The
district court’s conclusion that the state court did not
unreasonably apply Strickland in rejecting this claim is not
debatable, because the state court could reasonably conclude
that counsel’s failure to introduce such evidence was not
prejudicial. The record shows only that slides containing
semen found on Brandon’s body contain biological markers
that some people secrete and others do not. Andrews does
not secrete these markers, but the record is silent as to
whether Brandon was a secretor. Andrews offers statistical
evidence suggesting that Brandon was probably not a
secretor, but the evidence is not conclusive. Indeed, even
other experts testifying for Andrews noted that what minimal
evidence they obtained was subject to challenge. In light of
the eyewitness testimony about Andrews’s involvement in the
murders, and his palm prints next to Brandon’s body,
reasonable jurists would not dispute that the state court
reasonably concluded that any deficiency by defense counsel
was not prejudicial.

Next, Andrews raises two claims relating to the police
investigation of fingerprint evidence found at Wheeler’s
apartment. As explained by the state court on direct appeal,
 ANDREWS V. DAVIS 55

two of the police’s fingerprint experts, Howard Sanshuck and
Donald Keir, testified at trial that they compared 50
fingerprints found in Wheeler’s apartment with Andrews’s
fingerprints and palm prints. People v. Andrews, 776 P.2d at
289. The two experts concluded that left and right palm
prints on the kitchen floor on either side of Brandon’s body
belonged to Andrews. Id. Sanshuck’s supervisor, Jimmy
Cassel, had previously reviewed the prints and initially
labeled them as belonging to Wheeler. Id. Sanshuck
discovered the error shortly before Andrews’s first trial. At
the second trial, Cassel stated that the original
misidentification was due to his efforts to process the crime
scene information too quickly, and testified that there was no
similarity between the palm prints found on the kitchen floor
and Wheeler’s prints. Id. The three experts, Sanshuck, Keir,
and Cassel, all testified at the second trial that Andrews’s
palm prints matched the palm prints found on either side of
Brandon’s body. Id. Andrews has never adduced any
evidence to rebut this.

On appeal, Andrews claims that his counsel were
deficient in failing to investigate two different lines of
defense. First, Andrews claims that counsel performed
deficiently by failing to present evidence that Andrews’s
fingerprints could have been left in Wheeler’s apartment due
to his prior visits. Second, Andrews claims that counsel
should have uncovered and used the police’s original
misidentification of his palm prints. Andrews points to other
reports in the record which he claims shows that Keir and a
third analyst, William Leo, also misidentified his fingerprints.
The district court rejected this claim. In light of the
unrebutted evidence that the palm prints found on either side
of Brandon’s body were Andrews’s prints, no reasonable
jurist would dispute the district court’s determination that the
56 ANDREWS V. DAVIS

state court could reasonably have concluded that counsel’s
handling of the fingerprint evidence did not prejudice
Andrews’s defense. See Strickland, 466 U.S. at 694.

Finally, Andrews claims that counsel were ineffective for
failing to investigate or present evidence regarding his alibi
the night of the murder. The record shows that Andrews gave
a defense investigator the names of two alibi witnesses and
information on how to locate them, but Andrews did not
provide any affidavits from these witnesses to the state court,
or any further information about the nature of their testimony.
The state court and district court rejected this claim. In light
of the detailed testimony from Sanders and Brooks, the
evidence of Andrews’s palm prints on either side of
Brandon’s body, and the lack of any evidence regarding the
alibi witnesses, no reasonable jurist would dispute that the
state court reasonably applied Strickland in concluding that
counsel’s failure to further investigate these witnesses was
not prejudicial.

Andrews relies on United States v. Valenzuela–Bernal for
the proposition that he could establish his ineffective
assistance of counsel claim without showing how his alibi
witnesses would have testified, because he needed only show
their testimony would be material and favorable to his
defense. 458 U.S. 858, 867 (1982). Therefore, Andrews
claims, the state court erred in rejecting his Strickland claim.
The district court rejected this argument, and we agree.
Valenzuela-Bernal held that when the government deports
aliens who could aid a criminal defendant in his defense,
there is no violation of the criminal defendant’s right to
compulsory process under the Sixth Amendment unless the
defendant “make[s] some plausible showing of how [the alibi
witness’s] testimony would have been both material and
 ANDREWS V. DAVIS 57

favorable to his defense.” Id. This ruling does not “squarely
address[] the issue,” Van Patten, 552 U.S. at 125–26, or
“establish a legal principle that clearly extends” to the
question whether Andrews’s counsel’s failure to pursue the
alibi witnesses was ineffective assistance of counsel, see
Moses, 555 F.3d at 754 (quoting Van Patten, 552 U.S. at 123)
(alterations and internal quotation marks omitted).
Accordingly, the state court’s rejection of Andrews’s claim
was not an unreasonable application of Valenzuela-Bernal.
See Woodall, 134 S. Ct. at 1706–07.

In sum, the state court did not unreasonably apply
Strickland in concluding that Andrews did not create a
“substantial, not just conceivable” likelihood of a different
result, or that “any real possibility of [Andrews’s] being
acquitted was eclipsed by the remaining evidence pointing to
guilt,” Richter, 562 U.S. at 112–13; see also Strickland,
466 U.S. at 695–96, and the district court’s determination to
this effect was not debatable. Accordingly, Andrews has not
made a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), and we decline to issue a
COA.

C

Andrews argues that the state court erred in rejecting two
claims that his rights under Brady were violated. Brady
requires the state to disclose “evidence that is both favorable
to the accused and material either to guilt or to punishment.”
U.S. v. Bagley, 473 U.S. 667, 674 (1985) (internal quotation
marks omitted). Evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Id. at 682. Thus, to establish a Brady violation, a
58 ANDREWS V. DAVIS

defendant must prove: 1) “[t]he evidence at issue [is]
favorable to the accused, either because it is exculpatory, or
because it is impeaching,” 2) the evidence was
“suppressed . . . either willfully or inadvertently,” and
3) prejudice resulted, meaning there is a reasonable
probability that disclosing the evidence to the defense would
have changed the result. See Strickler v. Greene, 527 U.S.
263, 281–82 (1999); Bagley, 473 U.S. at 682.

Andrews claims the state suppressed two pieces of
evidence. First, he contends that the prosecution failed to
disclose a case file maintained by the Los Angeles Police
Department, termed a “murder book,” which contained
material evidence including the third party culpability and
fingerprint evidence also advanced in support of his
ineffective assistance of counsel claims. The state court
could reasonably have rejected this claim because the state
had provided counsel with a chronology of the police
investigation referring to much of the allegedly suppressed
murder book evidence. The district court held the state
court’s conclusion was not an unreasonable application of
Brady. No reasonable jurist could disagree with this
conclusion, because the state court could reasonably have
concluded that the evidence was not suppressed under Brady.
See United States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir.
1985) (holding the government does not suppress evidence
for purposes of Brady where “the means of obtaining the
exculpatory evidence [was] provided to the defense”).
Moreover, the state court could have reasonably concluded
that the result of the proceeding would not have been
different even if the evidence had been disclosed to the
defense. See Strickler, 527 U.S. at 280.
 ANDREWS V. DAVIS 59

For the same reason, no reasonable jurist could disagree
with the district court’s rejection of Andrews’s second Brady
claim, that the prosecution withheld the fact that Brooks was
subject to charges of welfare fraud. The state court could
have reasonably concluded that defense counsel had
sufficient information to discover that charges had been filed,
because defense counsel knew that Brooks was being
investigated for welfare fraud, and questioned her about it at
trial, outside the presence of the jury. See Dupuy, 760 F.2d
at 1501 n.5.

Andrews also raises claims under Napue, which provides
that the state may not “knowingly use false evidence,
including false testimony” or “allow[] it to go uncorrected
when it appears.” 360 U.S. at 269. According to Andrews,
the state knowingly adduced false testimony from two
fingerprint experts, Keir and Sanshuck. First, Andrews notes
that a report in the record, dated August 4, 1980, states that
Keir reviewed “fingers” from a suspect named “Walters” (the
alias being used by Andrews at the time) and concludes that
the prints were “not made.” This means, Andrews argues,
that Keir lied in identifying the palm prints found by
Brandon’s body as being from Andrews, and also lied when
he testified that he first examined Andrews’s palm prints in
November 1983. The state asserts Keir did not testify falsely,
because the report references fingerprints, while Keir testified
regarding palm prints. Second, Andrews argues that
Sanshuck’s testimony that police policy did not require
photographs to be taken of prints on the surface from which
they were lifted was false, because it contradicted a Los
Angeles Police Department Homicide Manual, dated 1981.19

19
The Los Angeles Police Department Homicide Manual states in
pertinent part:
60 ANDREWS V. DAVIS

The state argues that no false information was knowingly
presented, see id., because the homicide manual used
permissive, not mandatory, language, and because the
manual’s statement did not reflect the police department’s
actual practice, which was the subject of Sanshuck’s
testimony. The district court rejected Andrews’s Napue
claims, and no reasonable jurist could disagree that the state
court could reject these claims based on the reasonable view
of the facts offered by the state. See Taylor v. Maddox,
366 F.3d 992, 999–1000 (9th Cir. 2004) (holding that under
AEDPA, state court fact finding must be not merely wrong,
but “actually unreasonable” and without support in the record
to warrant habeas relief).

D

Andrews makes three claims based on the fact that
between 1993 and 1995, all biological evidence in this case
was destroyed, except for 50 fingerprint cards, one vaginal
slide, one oral slide, and one anal slide. His petition to the
California Supreme Court claimed that the destruction of the
evidence violated his due process rights under Trombetta and
Arizona v. Youngblood, a case that held that the government’s
“failure to preserve potentially useful evidence” before trial
does not violate a defendant’s due process rights unless the
criminal defendant can show that the government acted in bad
faith. 488 U.S. 51, 58 (1988). As Andrews acknowledges,

Note: (A) Photographing Prints

Prints found at the scene of a homicide should be
photographed. The procedure is recommended because
it is much easier to introduce print evidence into court
if the print has been photographed, as parts of the object
which carried the print may show in the picture.
 ANDREWS V. DAVIS 61

the Supreme Court has since held that cases assessing pre-
conviction access to evidence, which would include
Trombetta and Youngblood, do not apply to cases where a
defendant is denied access to evidence after being convicted.
See Dist. Attorney’s Office for the Third Judicial District v.
Osborne, 557 U.S. 52, 61–62, 68–69, 74 (2009); see also
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007)
(observing that “the Supreme Court has not clearly
established that post-conviction destruction [of evidence] is
a due process violation”). Therefore, the California Supreme
Court did not unreasonably apply Trombetta or Youngblood.
Andrews relies on Osborne to make a second claim, that the
destruction of evidence violated his due process and Eighth
Amendment rights. We do not consider whether the state
court’s decision was contrary to or an unreasonable
application of Osborne, because it was decided after the
California Supreme Court ruled, and thus is not clearly
established precedent for purposes of § 2254(d)(1). This
theory was not briefed to the district court, as the case was
decided between completion of briefing and the court’s
decision. Andrews points to no clearly established precedent
in existence at the time the state court ruled that applies this
principle, and therefore the district court’s rejection of this
claim was not debatable among fair minded jurists.

Andrews’s third claim is that the destruction of evidence
denied him access to the courts to vindicate an underlying
claim of factual innocence. However, as the district court
recognized in rejecting this claim, he cites no Supreme Court
precedent clearly establishing that destruction of evidence
after a defendant is convicted violates a right of access to the
courts. Christopher v. Harbury, on which Andrews relies, is
not on point: it held that a plaintiff’s claim that government
officials misled her in connection with her husband’s
62 ANDREWS V. DAVIS

disappearance did not state a constitutional denial of access
claim upon which relief could be granted. 536 U.S. 403, 407,
415, 418–19 (2002). Accordingly, no reasonable jurist could
dispute that the district court correctly denied this claim.

E

In light of the above, we conclude that no reasonable
jurist would disagree with the district court in rejecting
Andrews’s cumulative error claim. “[T]he fundamental
question in determining whether the combined effect of trial
errors violated a defendant’s due process rights is whether the
errors rendered the criminal defense ‘far less persuasive,’ and
thereby had a ‘substantial and injurious effect or influence’
on the jury’s verdict.” Parle v. Runnels, 505 F.3d 922, 928
(9th Cir. 2007) (citation omitted) (quoting Chambers v.
Mississippi, 410 U.S. 284, 294 (1973) and Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). We agree with the
district court that the California Supreme Court reasonably
determined that any errors, in the aggregate, did not have
such a substantial or injurious effect on the verdict. The
cumulative result of the disputable errors identified by
Andrews would not have made his defense significantly more
persuasive, since his defense focused on attacking the
credibility of Sanders and Brooks and challenging the
fingerprint and palm print evidence. Reasonable jurists
would not dispute the district court’s conclusion, so no COA
is warranted.

Nor would any reasonable jurist disagree with the district
court’s conclusion that the state court did not err in rejecting
Andrews’s factual innocence claim. The state court could
have reasonably concluded that Andrews’s introduction of
slides showing that biological markers found in the semen on
 ANDREWS V. DAVIS 63

Brandon’s body had not been secreted by Andrews and may
not have been secreted by Brandon, described above, was
insufficient to “go beyond demonstrating doubt about his
guilt [to] affirmatively prove that he is probably innocent.”
See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)
(en banc) (observing that the standard for establishing a
freestanding claim of actual innocence is “‘extraordinarily
high,’ and that the showing [for a successful claim] would
have to be ‘truly persuasive.’” (quoting Herrera, 506 U.S. at
417) (O’Connor, J., concurring)). This claim does not merit
a COA.

In sum, because the district court’s conclusions, under
AEDPA review, are not debatable among reasonable jurists,
Andrews fails to make the “substantial showing of the denial
of a constitutional right” required for a COA to issue, and we
deny his request for one as to each of his uncertified claims.

V

Andrews contends that the district court erred in denying
his motion for an evidentiary hearing on 16 claims (Claims
1–8, 15, 19–23, 25, and 32), which include all but one of the
claims on appeal here.20 We review a district court’s denial
of an evidentiary hearing for an abuse of discretion, Sully v.
Ayers, 725 F.3d 1057, 1067 (9th Cir. 2013), and “may affirm
the district court’s decision on any ground supported by the
record, even if it differs from the district court’s rationale,”
id. (internal quotation marks omitted). In Pinholster, the
Supreme Court stated that “review under § 2254(d)(1) is

20
He did not seek an evidentiary hearing on Claim 26, which raised the
argument that it would violate the Eighth Amendment to execute him after
a long delay.
64 ANDREWS V. DAVIS

limited to the record that was before the state court that
adjudicated the claim on the merits.” 131 S. Ct. at 1398.
“[A]n evidentiary hearing is pointless once the district court
has determined that § 2254(d) precludes habeas relief.” Sully,
725 F.3d at 1075; see Pinholster, 131 S. Ct. at 1411 n.20
(“Because Pinholster has failed to demonstrate that the
adjudication of his claim based on the state-court record
resulted in a decision ‘contrary to’ or ‘involv[ing] an
unreasonable application’ of federal law, a writ of habeas
corpus ‘shall not be granted’ and our analysis is at an end.”
(alteration in original)). Accordingly, the district court did
not err in denying Andrews’s motion for an evidentiary
hearing.

In light of the foregoing, we REVERSE the district
court’s grant of relief, DISMISS the Eighth Amendment
lethal injection claim as unripe, and DENY the petition for a
COA of the uncertified claims.

REVERSED in part, DISMISSED in part, and
PETITION DENIED in part.