FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND ANTHONY LEWIS, No. 19-99001
Petitioner-Appellant, D.C. No.
1:03-cv-06775-
v. LJO-SAB
CHANCE ANDES, Acting Warden,
San Quentin State Prison, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 20, 2023
San Francisco, California
Filed March 12, 2024
Before: Mary H. Murguia, Chief Judge, and Morgan
Christen and Daniel P. Collins, Circuit Judges.
Opinion by Judge Christen
2 LEWIS V. ANDES
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of a federal
habeas corpus petition filed pursuant to 28 U.S.C. § 2254 by
Raymond Anthony Lewis, who was sentenced to death in
1991 after a California jury convicted him of the first-degree
murder of Sandra Simms.
Lewis’s certified claims involved only the penalty phase
of his trial, where the State introduced evidence of Lewis’s
aggravating prior criminal acts, including a confession he
made as a juvenile to involvement in a prior murder. Lewis
argued that the state trial court’s admission of his juvenile
confession was unconstitutional, and that his trial counsel
was ineffective in failing to present evidence of his
innocence of the prior murder. Applying the deferential
standard required by the Antiterrorism and Effective Death
Penalty Act of 1996, the panel concluded that the California
Supreme Court’s affirmance of the trial court’s admission of
Lewis’s juvenile confession was not contrary to or an
unreasonable application of federal law, that it was not based
on unreasonable factual determinations, and that Lewis’s
trial counsel’s litigation of the evidence of the prior murder
did not fall below an objective standard of reasonableness.
Lewis also contended that his trial counsel was
constitutionally ineffective by failing to investigate,
develop, and present certain mitigating evidence at the
penalty phase of the Simms trial. Lewis argued that his trial
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEWIS V. ANDES 3
counsel should have presented additional evidence of his
family’s history, his rough upbringing, and his mental health
issues. The panel concluded that Lewis failed to show that
his trial counsel’s performance fell below an objectively
reasonable standard. Rather, counsel made reasonable
strategic decisions at the penalty phase to ask for the jury’s
mercy and to appeal to any lingering doubt the jurors may
have had about Lewis’s guilt. The panel also concluded that
much of the evidence Lewis said his trial counsel was
ineffective in not introducing would have been cumulative
of evidence that his counsel did introduce.
Lewis was eligible for the death penalty because the jury
found that he had committed robbery in the course of the
Simms murder. His uncertified claims attacked the
sufficiency of the evidence of robbery based on the
diminished mental capacity and inconsistent testimony of
the State’s eyewitness to the Simms murder. The panel
declined to grant a certificate of appealability on these
claims because the eyewitness’s credibility was a question
for the jury and his testimony was corroborated by several
pieces of physical evidence.
COUNSEL
Brian Abbington (argued) and Joan M. Fisher, and Brian
Abbington, Assistant Federal Public Defenders; Heather E.
William, Federal Defender; Federal Public Defender’s
Office, Sacramento, California; Joseph Schlesinger,
Assistant Federal Public Defender, California Appellate
Project, San Francisco, California; for Petitioner-Appellant.
Jeffrey Firestone (argued) and Sean M. McCoy, and
Stephanie A. Mitchell, Deputy Attorneys General; Kenneth
4 LEWIS V. ANDES
N. Sokoler, Supervising Deputy Attorney General; James
W. Bilderback II, Senior Assistant Attorney General; Rob
Bonta, Attorney General of California; Office of the
California Attorney General, Sacramento, California; for
Respondent-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Raymond Anthony Lewis was sentenced to death in
1991 after a California jury convicted him of the first-degree
murder of Sandra Simms. Lewis appeals the district court’s
denial of his federal habeas corpus petition filed pursuant to
28 U.S.C. § 2254.
Lewis’s certified claims involve only the penalty phase
of his trial, where the State introduced evidence of Lewis’s
aggravating prior criminal acts, including a confession he
made as a juvenile to involvement in a prior murder. Lewis
seeks federal habeas relief on the ground that the state trial
court’s admission of his juvenile confession was
unconstitutional. He also argues that his trial counsel was
ineffective in failing to present evidence of his innocence of
the prior murder. The California Supreme Court affirmed
the trial court’s admission of the prior confession in a
reasoned decision.
We conclude that the California Supreme Court applied
the correct constitutional standard when it evaluated the
admissibility of Lewis’s juvenile confession at the Simms
murder trial and that Lewis has not identified any clearly
established federal law that the state court overlooked or
LEWIS V. ANDES 5
unreasonably applied. The state court also relied on
reasonable determinations of fact when it affirmed the
admission of Lewis’s prior confession. In trying to relitigate
the circumstances surrounding his juvenile confession,
Lewis asks us to ignore AEDPA’s deferential standard.
Lewis also contends that his trial counsel was
constitutionally ineffective by failing to investigate,
develop, and present certain mitigating evidence at the
penalty phase of the Simms trial. Lewis argues that his trial
counsel should have presented additional evidence of his
family’s history, his rough upbringing, and his mental health
issues. We conclude that Lewis failed to show that his trial
counsel’s performance fell below an objectively reasonable
standard. Rather, counsel made reasonable strategic
decisions at the penalty phase to ask for the jury’s mercy and
to appeal to any lingering doubt the jurors may have had
about Lewis’s guilt. We also conclude that much of the
evidence Lewis says his trial counsel was ineffective in not
introducing would have been cumulative of evidence that his
counsel did introduce.
Lewis was eligible for the death penalty because the jury
found that he had committed robbery in the course of the
Simms murder. His certified claims do not challenge that
finding, but his uncertified claims attack the sufficiency of
the evidence of robbery based on the diminished mental
capacity and inconsistent testimony of the State’s eyewitness
to the Simms murder. We decline to grant a certificate of
appealability (COA) on these claims because the
eyewitness’s credibility was a question for the jury and his
testimony was corroborated by several pieces of physical
evidence.
6 LEWIS V. ANDES
We affirm the district court’s denial of the petition for
writ of habeas corpus.
I
A
On June 6, 1988, in Fresno, California, Sandra Simms
was repeatedly beaten with a wooden two-by-four and
strangled to death. People v. Lewis, 28 P.3d 34, 46 (Cal.
2001). Earlier that night, Simms smoked cocaine with then-
26-year-old Lewis and Lewis’s girlfriend, Michelle Boggs,
at the boardinghouse where Lewis lived. Id. at 45. Simms
gave Lewis money to buy more drugs. Lewis left and met
up with Paul Pridgeon, and the two set out to find a dealer. 1
Id. Simms became concerned that Lewis had stolen her
money, and she went looking for Lewis. Id. When she found
him, Simms, Lewis, and Pridgeon went to buy more drugs.
Id.
Pridgeon was the prosecution’s main witness during the
guilt phase of the trial. Id. He testified that as the trio walked
down an alley toward Pridgeon’s apartment, Lewis picked
up a two-by-four and hit Simms’s head with it. Id. Pridgeon
described Simms falling to the ground and Lewis striking her
approximately six more times with the board. Id. Lewis
then grabbed her throat and strangled her. Id. He also ripped
open her blouse and took money from her bra. Id. Lewis
told Pridgeon that he would kill him if he told anyone what
Lewis had done, and the two men went to Pridgeon’s
apartment to smoke more cocaine. Id.
1
Lewis notes that the record includes an incorrect spelling of Pridgeon’s
name as “Pridgon.”
LEWIS V. ANDES 7
A passing motorist discovered Simms’s body and
reported it. Id. The Fresno police officer who responded
found Simms lying on her back in a pool of blood, with a
large cut on her face and “several razor-like cuts” on her
neck. Id. The officer found Simms’s blouse “partially open,
with the two top buttons ripped off,” and a $20 bill in her
bra. Id. at 45–46.
The next morning, Pridgeon went to the police. He told
them that Lewis had killed Simms, and he led a detective to
a chipped two-by-four that contained traces of human blood.
Id. at 46. A “wood splinter found in Simms’s hair fit the
chipped end of the two-by-four,” but testing of the blood on
the two-by-four was inconclusive. Id.
Police arrested Lewis that same morning at the
boardinghouse where he lived. A detective testified that
Lewis was wearing blue sweatpants and put on a green jacket
and a pair of women’s tennis shoes before they left the
boardinghouse for the police station. Id. There was blood
on the shoes that “matched Simms’s blood and that of
approximately 2 percent of the population.” Id. There was
also blood on the sweatpants and jacket, “but criminologists
could not determine if the blood was human blood.” Id.
A pathologist testified that Simms’s injuries were
consistent with being hit by a board and strangled. Id.
“[S]trangulation was the main cause of death, with cerebral
contusions from . . . basal skull fractures as a second or
contributing cause.” Id.
At trial, the defense case focused on attacking Pridgeon’s
credibility and challenging the reliability of the physical
evidence. Id. at 46–47. The defense presented expert
testimony “that Pridg[e]on suffered from mental disorders,
mild mental retardation, and substance abuse.” Id. at 46.
8 LEWIS V. ANDES
“Experts testified that Pridg[e]on’s capacity to perceive and
recollect Simms’s killing was impaired, and that he made up
information to fill in gaps in his memory.” Id. In rebuttal,
the State’s expert witness conceded that Pridgeon’s mental
capacity was at about the level of a seven-year-old.
Nevertheless, the State’s expert testified that Pridgeon had
the capacity to “relate the facts as he observed them” the
night Simms was killed.
The defense also identified inconsistencies between
Pridgeon’s testimony at trial and the testimony he gave at the
preliminary hearing. Id. at 47. For example, Pridgeon
testified at trial that he tried but failed to warn Simms that
Lewis was going to attack her and that Lewis strangled
Simms, but he did not mention these facts at the preliminary
hearing. 2 Id. at 49. Based on numerous inconsistencies,
defense counsel moved to strike all of Pridgeon’s testimony.
The trial court denied the motion to strike. Id.
Lewis testified on his own behalf at trial. Id. at 46. He
told the jury that the clothes and shoes he was wearing when
he was arrested were picked out by a detective and did not
belong to him. Id. at 47. Lewis also stated that he had seen
Pridgeon wearing the jacket and shoes. Id. Lewis denied
harming Simms and stated that he last saw her outside
Pridgeon’s apartment, where she got into a Cadillac with an
unknown man and said she would return in 20 to 25 minutes.
Id. at 46.
The jury deliberated for six days and on November 26,
1990, it found Lewis guilty of first-degree murder and
2
While Pridgeon did not explicitly state at the preliminary hearing that
Lewis strangled Simms, it appears he made gestures indicating that
Lewis “had both of his hands extended in a downward direction” during
the attack.
LEWIS V. ANDES 9
robbery. The jury also found that Lewis’s robbery of Simms
was a “special circumstance,” making him eligible for the
death penalty.
B
At the penalty phase, the State presented as factors in
aggravation evidence of Lewis’s prior crimes. As factors in
mitigation, the defense presented expert mental health
testimony, testimony from Lewis’s family about Lewis’s
character, and their pleas that he not be executed. Id. at 47–
48. The defense also presented evidence of Lewis’s positive
adjustment to incarceration. Id. at 48.
Lewis’s criminal history included his involvement in the
murder of A.Z. Rogers, which occurred in 1975 when Lewis
was 13 years and 7 months old. 3 Id. at 64. Rogers was the
brother of Lewis’s mother’s boyfriend. Id. at 48. The State’s
evidence showed that Lewis, “along with his two friends,
poured gasoline and threw a lighted match into the car in
which Rogers was sleeping.” Id. at 64. Rogers died from
smoke inhalation and second- and third-degree burns. Id.
At the Simms trial, the State sought to introduce
evidence of the Rogers murder to establish an aggravating
factor under California Penal Code § 190.3(b), which
instructs the jury to consider “[t]he presence or absence of
criminal activity by the defendant which involved the use or
attempted use of force or violence.” Evidence of Lewis’s
3
While the California Supreme Court’s opinion states that Lewis was 13
years and 9 months old, the murder occurred on April 28, 1975, and
Lewis was born on September 16, 1961, thus making him 13 years and
7 months old at the time. See id. at 64–65.
10 LEWIS V. ANDES
juvenile second-degree murder adjudication for killing
Rogers was not itself admitted. 4 Id. at 64.
Lewis first moved to exclude the State’s evidence of the
Rogers murder on the ground that there was insufficient
proof that he understood the wrongfulness of his acts at the
time of the murder. Id. The trial court rejected this
argument. Id. The court instead submitted the question to
the jury, which found beyond a reasonable doubt that Lewis
understood the wrongfulness of his acts during the Rogers
murder. Id. at 64–66. The California Supreme Court
affirmed the trial court’s ruling and held that “[t]here was
substantial evidence supporting the finding that defendant
knew the wrongfulness of his conduct at the time of the 1975
murder.” Id. at 66. Lewis does not challenge that conclusion
here.
Lewis also argued in the trial court that the confession he
made to an investigator, that he had poured gasoline and
thrown a lit match into Rogers’s car, was inadmissible at the
Simms trial because: (1) he did not knowingly and
intelligently waive his rights under Miranda v. Arizona, 384
U.S. 436 (1966), during the juvenile interrogation; and
(2) his confession was not voluntary. Id. at 64. Lewis
requested a hearing outside the jury’s presence for the
Simms trial court to consider the admissibility of Lewis’s
confession to the prior murder. Id. at 67. The court granted
Lewis’s hearing request and heard testimony from Lewis,
Investigator William Martin, and Detective Thomas Lean.
Id.
4
Lewis was tried in juvenile court for Rogers’s death. Id. at 64. The
juvenile court found that Lewis committed second-degree murder and
confined him to the California Youth Authority. Id.
LEWIS V. ANDES 11
Detective Lean testified to the court that, nine days after
Rogers’s death, he and Detective Arthur Christensen
brought Lewis to the police station for questioning, along
with the two boys who were with Lewis on the day of
Rogers’s death, Sylvester Green and Willis Randolph. Id.
Detective Lean testified that he read Lewis his Miranda
rights from a department-issued card. Id. at 68. The
detective asked if Lewis understood each of his rights and
whether he still wished to talk to the detectives. According
to Detective Lean, Lewis responded “yeah”—or “ya,” as it
was spelled in Detective Lean’s report—to both questions
without “any overt hesitation.” Id. at 68. Detective Lean
“did not recall” Lewis asking to speak with his mother
during the interrogation. Id.
Detective Lean recounted that Lewis first told the two
interrogating detectives that “he last saw Rogers when
Rogers was smoking a cigarette underneath the hood of his
car.” Id. at 67. Later, Detective Lean told Lewis “that arson
investigators determined the fire originated from inside the
car and not from under the hood.” Id. Detective Lean
testified that Lewis then provided a different version of what
happened the day Rogers died: Lewis said that he and
Sylvester Green were siphoning gas from Rogers’s car, and
Lewis threw the gas can at Green and it landed in the car. Id.
at 67–68. Lewis accidentally knocked a cigarette out of
Green’s hand and it also landed in the car, igniting the fire.
Id. at 68.
At that point in the interrogation, the detectives brought
in Investigator Martin to aid them. Id. Like Lewis,
Investigator Martin was a Black male, and the detectives
thought Lewis would better relate to Martin. Id. Investigator
Martin testified to the Simms trial court that he told Lewis
“that Rogers was a ‘nice man’ and ‘didn’t deserve to die that
12 LEWIS V. ANDES
way,’ and that ‘this was something that was horrible and
won’t go away.’” Id. According to Investigator Martin,
Lewis then admitted that he poured gas into Rogers’s car
while Rogers slept and then threw a lit match into the car.
Id. Lewis told the investigator that he lit the fire “because
Rogers had slapped him after he had tried to take Rogers’s
watch.” Id. Lewis’s confession was not reduced to a written
statement and was not audio or video recorded.
The Simms trial court also considered the testimony
Lewis gave at the preliminary hearing in the Simms case.
Lewis testified that he remembered being read his Miranda
rights when he was questioned about the Rogers murder, but
that he was scared and did not know what many of the words
meant. Id. Lewis “admitted he gave three or four different
stories regarding what happened” the day Rogers died, but
he “denied telling detectives that he and [Green] were
splashing each other with gas, which landed in the car, or
that he was wrestling with [Green] and accidentally flipped
a cigarette into the car, causing the fire.” Id. Lewis testified
that the detectives denied his requests to speak with his
mother, telling him he would have to wait. Id. at 68–70.
Lewis also testified that he stopped speaking with the
detectives after he asked to speak with his mother. But when
asked again about the sequence of events during the
interrogation, Lewis stated that he gave his statement to the
detectives both before and after he asked to speak to his
mother.
The Simms trial court denied Lewis’s motion to exclude
his juvenile confession from evidence. The court concluded
“that [Lewis’s] confession was voluntary, and that he had
made an intelligent and knowing waiver of his right to
counsel.” Id. at 65.
LEWIS V. ANDES 13
With Lewis’s motion denied, the State was permitted to
introduce to the jury its evidence of Lewis’s involvement in
Rogers’s death. A fire captain and a fire marshal both
testified that the fire was deliberately started. Id. at 64. An
eyewitness testified that she saw Lewis and two others
running away from the fire. Id. Investigator Martin testified
that Lewis confessed to pouring gasoline and throwing a lit
match into Rogers’s car. Id.
The State’s other aggravating evidence consisted of
Lewis’s involvement in three burglaries, including attacks
on two men and the robbery of an 81-year-old woman;
violent behavior against another inmate and an officer while
in jail; involvement “in a number of purse snatchings”; and
prior theft- and drug-related convictions. Id. at 47.
In mitigation, the defense offered testimony from two
expert witnesses. Dr. Callahan, a psychiatrist, testified that
Lewis suffered from antisocial personality disorder. Id.
Based on his review of records from Lewis’s prior mental
health examinations, Dr. Callahan concluded that Lewis had
been diagnosed with “paranoid schizophrenia with episodic
violent behavior, impaired judgment, and borderline
intelligence.” Id. Dr. Callahan further testified that Lewis
had not received proper treatment for his mental health
conditions, that Lewis “lived in a very unstructured and
unsupervised environment,” and “that a structured
environment and medication would help prevent [him] from
acting out violently.” Id. at 47–48. Dr. Adams, a
psychologist for the defense, testified that Lewis “met the
criteria for antisocial personality disorder.” Id. at 48.
Lewis’s family members testified on his behalf. His
mother expressed that “she loved her son and would be
extremely distraught if he were executed.” Id. Lewis’s sister
14 LEWIS V. ANDES
testified that her brother had changed while in jail, becoming
more religious, and “that she would miss [Lewis] very much
if he were executed.” Id. Lewis’s cousin also testified. She
told the jury that Lewis advised young people to stay off
drugs and that “she would miss him if he were executed.”
Id.
The defense also presented testimony from an employee
of the sheriff’s department, a correctional officer, and a jail
employee, all of whom testified that Lewis was respectful in
their interactions with him. Id. A death-row inmate testified
that Lewis could become a counselor to other inmates while
in prison. Id.
As to the Rogers murder, Odell Rogers, the brother of
the victim in the Rogers murder, testified that he “was not
afraid of” Lewis and that “he had warned [his brother A.Z.]
about carrying gas in his car because he smoked and used
matches.” Id.
In its closing argument, the defense urged the jury to
show sympathy and mercy to Lewis. “[D]efense counsel
stressed defendant’s troubled childhood, his diagnosis of
paranoid schizophrenia, and his lack of parental guidance.”
Id. at 67. Counsel also pointed to Lewis’s goal of becoming
an inmate counselor, the emotion he showed in the
courtroom, and his recent good behavior while incarcerated.
Counsel argued that Lewis’s recent good behavior showed
his increasing maturity. The defense also argued that the
jury should not consider the Rogers murder as an
aggravating factor because Lewis did not know the
wrongfulness of his conduct at the time. Counsel also tried
to invoke lingering doubt as to whether Lewis murdered
Simms by pointing out inconsistencies in the evidence and
suggesting that Pridgeon lied during his testimony.
LEWIS V. ANDES 15
The jury deliberated for four days during the penalty
phase before returning a verdict of death. The trial court
imposed that sentence.
C
Lewis filed a direct appeal. The California Supreme
Court affirmed his conviction and sentence in 2001. Id. at
64. In 2003, the California Supreme Court summarily
denied Lewis’s first state habeas petition. Lewis timely filed
a federal habeas petition under 28 U.S.C. § 2254 and a
second state habeas petition. The district court stayed
Lewis’s federal petition pending resolution of the second
state petition. In 2007, Lewis filed a third state habeas
petition. In 2008, Lewis filed the operative first amended
§ 2254 petition in the district court. The petition raised 33
claims. The California Supreme Court summarily denied
Lewis’s successive state habeas petitions in 2010, and the
district court found that Lewis’s 33 claims were exhausted.
The district court denied Lewis’s first amended petition
in 2018. The court denied claims 1 through 19 and 21
through 33 on the merits and denied claim 20 as premature. 5
Lewis filed a motion for reconsideration under Federal Rule
of Civil Procedure 59(e), which the district court denied.
The district court granted a COA only as to claims 14, 15,
16, 17, and 18. This appeal followed. Lewis challenges the
district court’s denial on the merits of his five certified
claims and the district court’s denial of a COA as to claims
2, 10, and 12.
5
In Claim 20, Lewis contends that California’s use of lethal injection to
execute him would constitute cruel and unusual punishment in violation
of the Eighth Amendment.
16 LEWIS V. ANDES
II
We review de novo a district court’s denial of habeas
relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.
2019). Because Lewis filed his federal habeas petition after
April 24, 1996, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) applies. See Pub. L. No. 104-
132, 110 Stat. 1214 (1996). AEDPA prohibits a federal
court from granting a petition for a writ of habeas corpus
unless the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or the state court’s decision “was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).
“In determining whether a state court decision is contrary
to federal law, we look to the state’s last reasoned
decision . . . as the basis for its judgment.” Avila v. Galaza,
297 F.3d 911, 918 (9th Cir. 2002). When there is no
reasoned state-court decision addressing a habeas claim,
there is a rebuttable presumption that the state court
adjudicated the claim on the merits. See Harrington v.
Richter, 562 U.S. 86, 99–100 (2011). In that circumstance,
federal courts must consider what arguments could have
supported the state court’s decision and then ask whether it
is possible that fairminded jurists could disagree that those
arguments or theories are inconsistent with a prior Supreme
Court holding. Id. at 102.
A state court’s decision is contrary to clearly established
federal law if it “‘applies a rule that contradicts the
governing law set forth in [Supreme Court] cases’ or if it
‘confronts a set of facts that are materially indistinguishable
LEWIS V. ANDES 17
from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [this] precedent.’” Cook v.
Kernan, 948 F.3d 952, 965 (9th Cir. 2020) (alterations in
original) (quoting Williams v. Taylor, 529 U.S. 362, 405–06
(2000)). “Clearly established federal law” refers to the
Supreme Court’s holdings “as of the time of the relevant
state-court decision.” Avena, 932 F.3d at 1247 (alterations
omitted) (quoting Lockyer v. Andrade, 538 U.S. 63, 71
(2003)). A state court’s decision is an unreasonable
application of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.” Williams, 529
U.S. at 407–08. A state court’s factual findings are
reasonable if “reasonable minds reviewing the record” could
agree with them. Brumfield v. Cain, 576 U.S. 305, 314
(2015) (alteration omitted) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)).
“Strickland v. Washington and its progeny constitute the
clearly established federal law governing claims of
ineffective assistance of counsel.” Andrews v. Davis, 944
F.3d 1092, 1107 (9th Cir. 2019) (en banc). To prevail on an
ineffective assistance of counsel (IAC) claim, a defendant
must establish that his counsel’s performance was
constitutionally deficient, and that “the deficient
performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Strickland’s
“deficient performance” prong requires a defendant to show
“that counsel’s representation fell below an objective
standard of reasonableness” such that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687–88. In evaluating a lawyer’s
performance, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
18 LEWIS V. ANDES
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Strickland’s
“prejudice” prong requires a defendant to show “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
Under AEDPA, the primary issue is whether the state
court adjudication of the Strickland claim was objectively
reasonable. Woods v. Sinclair, 764 F.3d 1109, 1131 (9th Cir.
2014) (citing Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105
(citations omitted). Thus, even if we would find, on de novo
review, that petitioner can satisfy both Strickland prongs,
“AEDPA requires that a federal court find the state court’s
contrary conclusions . . . objectively unreasonable before
granting habeas relief.” Woods, 764 F.3d at 1132.
III
A
We affirm the district court’s denial of Lewis’s certified
penalty-phase claims related to the admission of his
confession to the Rogers murder. Lewis contends that:
(1) his confession to the Rogers murder was involuntary,
uncounseled, and false, and his counsel in the Simms trial
was ineffective for failing to preserve Lewis’s claim that he
requested to speak with his mother while being interrogated
about the Rogers murder, which he asserts was tantamount
LEWIS V. ANDES 19
to a request for counsel; and (2) his counsel at the Simms
trial was ineffective by failing to present credible evidence
of his innocence of the Rogers murder. 6 We conclude that
the California Supreme Court’s affirmance of the trial
court’s admission of Lewis’s juvenile confession was not
contrary to or an unreasonable application of federal law,
that it was not based on unreasonable factual determinations,
and that Lewis’s trial counsel’s litigation of the Rogers
murder evidence did not fall below an objective standard of
reasonableness.
1
On direct appeal to the California Supreme Court, Lewis
claimed that his confession to the Rogers murder “was not a
product of his free will and his intelligent and knowing
waiver of his Fifth Amendment rights.” Lewis, 28 P.3d at
67. The California Supreme Court rejected these arguments,
holding that Lewis’s “confession was voluntary and
followed a knowing and intelligent waiver of his Miranda
rights.” Id. at 69. The California Supreme Court’s opinion
is the last reasoned decision addressing these arguments.
The California Supreme Court wrote that, “[t]o
determine whether a minor’s confession is voluntary, a court
must look at the totality of circumstances, including the
minor’s age, intelligence, education, experience, and
capacity to understand the meaning and consequences of the
given statement.” Id. at 68 (citing In re Eduardo G., 166
Cal. Rptr. 873, 879–80 (Cal. Ct. App. 1980) (citing Gallegos
v. Colorado, 370 U.S. 49 (1962))). Applying the totality-of-
the-circumstances test, the California Supreme Court
6
These arguments correspond to Claims 17 and 18 of Lewis’s first
amended petition.
20 LEWIS V. ANDES
determined that “Detective Lean’s testimony, which the trial
court clearly credited, supported the court’s finding that
[Lewis] intelligently and knowingly waived his rights before
voluntarily confessing,” and that “neither Detective Lean’s
nor Investigator Martin’s testimony was inherently so
improbable as to be unworthy of belief.” Id. at 69 (internal
quotation marks and citation omitted). The court rejected
Lewis’s “contention that his young age and low intelligence
precluded him from making a voluntary, knowing, and
intelligent waiver.” Id. “Although [Lewis] was less than 14
years old (and subsequent to the interviews was diagnosed a
paranoid schizophrenic), he participated in his conversations
with detectives, and indeed was keen enough to change his
story when Detective Lean revealed that the fire originated
from inside the car.” Id. Moreover, “[b]oth Detective Lean
and Investigator Martin testified that [Lewis] expressed no
confusion either before or during the interview.” Id. Lewis
also argued that the trial court did not consider that, as of the
time of his confession to the Rogers murder, he had had few
contacts with the police. Id. The California Supreme Court
concluded that this claim was “undermined by the
subsequent witness testimony that [Lewis] received various
citations and warnings from the police before 1975.” Id.
Finally, as to Lewis’s argument that he asserted his Fifth
Amendment right by requesting to speak to his mother
during the interrogation for the Rogers murder, the court
held that Lewis waived this claim by failing to raise it at trial.
Id. at 69–70.
We understand Lewis to challenge the admissibility of
his juvenile confession on due process grounds and as a
violation of Miranda. Lewis argues that the California
Supreme Court’s ruling that his confession was voluntary
“conflicts with clearly established federal law” because it
LEWIS V. ANDES 21
failed to account for Lewis’s youth and failed to analyze the
relevant factors as a whole. More specifically, he argues that
while the court “recited the general totality-of-circumstances
test, it never mentioned the Supreme Court’s additional
special-care requirement for juvenile confessions.” Lewis
further argues that the court improperly considered the
circumstances of his confession in isolation. Finally, in his
view, the California Supreme Court improperly placed the
burden on him to prove that his confession to the Rogers
murder was involuntary and unaccompanied by a valid
Miranda waiver. We are not persuaded.
Having carefully examined the record, we conclude that
the California Supreme Court’s determination that Lewis’s
confession was voluntary and involved a knowing and
intelligent waiver of his Miranda rights was not contrary to
clearly established federal law. The court applied the proper
totality-of-the-circumstances test for evaluating the
voluntariness of Lewis’s confession, see Withrow v.
Williams, 507 U.S. 680, 693 (1993), and acknowledged
authority holding that the “burden to establish whether [an]
accused’s statements are voluntary is greater if the accused
is a juvenile rather than an adult,” Lewis, 28 P.3d at 69 (citing
In re Anthony J., 166 Cal. Rptr. 238, 244 (Cal. Ct. App.
1980) (first citing In re Gault, 387 U.S. 1, 55 (1967); and
then citing Gallegos, 370 U.S. at 54)). Even if the court had
not included the latter citation, “[f]ederal courts are not free
to presume that a state court did not comply with
constitutional dictates on the basis of nothing more than a
lack of citation.” Bell v. Cone, 543 U.S. 447, 455 (2005).
Lewis relies on J.D.B. v. North Carolina, 564 U.S. 261,
268–69 (2011), to fault the California Supreme Court for
omitting the “premise that custodial interrogations are
inherently coercive especially where children—here a child
22 LEWIS V. ANDES
of color held in isolated custody without parent or counsel—
are involved.” J.D.B is of no help to Lewis because it was
decided a decade after the California Supreme Court
affirmed Lewis’s conviction and sentence. See Atwood v.
Ryan, 870 F.3d 1033, 1047 (9th Cir. 2017) (noting that
“Supreme Court cases decided after the state court’s decision
are not ‘clearly established Federal law’ under
§ 2254(d)(1)”). The California Supreme Court considered
Lewis’s “young age,” “low intelligence,” prior “encounters
with the police,” and “subsequent . . . diagnos[is of being] a
paranoid schizophrenic.” Lewis, 28 P.3d at 69. Nothing in
the court’s opinion suggests that it considered each factor
only in isolation, as Lewis argues. See id. Nor did the court
shift the burden to Lewis to show that his confession was
involuntary and unaccompanied by a valid Miranda waiver,
as Lewis contends. Instead, the court recognized that the
trial court “clearly credited” the testimony of the detectives
who were present when Lewis was questioned and
reasonably concluded there was no basis to reject the trial
court’s determination. Id.
To the extent Lewis argues that the California Supreme
Court’s totality-of-the-circumstances analysis was also an
unreasonable application of clearly established federal law,
that argument also fails. Lewis correctly points out that his
relative youth, the absence of an attorney or parent in the
interrogation room, and the mental health diagnoses he
received near the time of the 1975 interrogation are factors
that could support a conclusion that his Miranda waiver and
confession were not knowing and voluntary. See Fare v.
Michael C., 442 U.S. 707, 725 (1979); Gallegos, 370 U.S. at
54. But habeas review is “not a substitute for ordinary error
correction through appeal.” Harrington, 562 U.S. at 102–
03. Assessing this claim through the deferential lens
LEWIS V. ANDES 23
AEDPA requires, the state court reasonably relied on the
detectives’ testimony, which adequately supported the
finding that Lewis was advised of and understood his
Miranda rights, was not denied a request to speak to counsel
or a family member, did not appear upset or under the
influence of alcohol or drugs, had breaks during the
interrogation sessions, and was offered dinner. See
Berkemer v. McCarty, 468 U.S. 420, 433 & n.20 (1984);
Fare, 442 U.S. at 725. Investigator Martin, who witnessed
Lewis’s confession, testified that he appealed to Lewis’s
conscience, as opposed to employing intimidating tactics or
making threatening or coercive remarks. See Lewis, 28 P.3d
at 68; Fare, 442 U.S. at 727 (“The police did indeed indicate
that a cooperative attitude would be to respondent’s benefit,
but their remarks in this regard were far from threatening or
coercive.”); Ortiz v. Uribe, 671 F.3d 863, 872 (9th Cir. 2011)
(“[I]n the absence of threats or promises, mere psychological
appeals to a petitioner’s conscience [are] not enough to
overcome his or her will.” (citing Rupe v. Wood, 93 F.3d
1434, 1444 (9th Cir. 1996))). The California Supreme Court
did not unreasonably apply federal law in concluding that
Lewis’s confession to Rogers’s murder was voluntary and
that he knowingly and intelligently waived his Miranda
rights.
Lewis further contends that the California Supreme
Court erred by affirming the trial court’s admission of his
confession to the Rogers murder as an aggravating factor at
the penalty phase because the ruling “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” In
making this argument, Lewis relies on 28 U.S.C.
§ 2254(d)(2). We are not persuaded that any of the factual
issues Lewis identifies entitle him to relief.
24 LEWIS V. ANDES
Lewis first argues that the California Supreme Court’s
statement that Lewis and his two companions “were not
arrested but [were] under suspicion for Rogers’s death”
when the sheriff’s department brought them in for
questioning, Lewis, 28 P.3d at 67, is unreasonable in light of
Lewis being “held in isolation in holding cells and likely
handcuffed from morning until evening.” Lewis reads too
much into the state court’s statement, which—when read in
context—refers to the time period when Lewis was first
transported to the police station, not the duration of his stay
there. And even assuming the statement was erroneous,
Lewis fails to explain how it was material to the California
Supreme Court’s admissibility analysis. See id. at 68–69.
Second, Lewis challenges the California Supreme
Court’s observation that, after Detective Lean read Lewis his
Miranda rights and asked if he still wished to speak to the
detectives, Lewis, “[w]ithout any overt hesitation, . . . replied
yes, and did not express any confusion over the rights read
to him.” Id. at 68. Lewis stresses that the trial testimony
shows that he responded “ya” or “yeah,” not “yes,” and “the
revision of the actual response changes a 13-year old’s
answer into an adult’s.” Because the state court did not
purport to be quoting Lewis’s exact words and did not
discuss or attribute any adult-like sophistication to Lewis’s
response, Lewis fails to show that the court’s paraphrase was
unreasonable.
Third, Lewis argues the California Supreme Court
unreasonably determined that Lewis understood Detective
Lean’s Miranda warnings because it relied heavily on the
detective’s testimony, even though the detective was unable
to recall his conversation with Lewis and only testified as to
what he usually told juveniles when he questioned them.
This argument overlooks that Detective Lean testified at a
LEWIS V. ANDES 25
preliminary hearing held during the penalty phase of the
Simms trial in 1990 that he remembered advising Lewis of
his Miranda rights during the Rogers investigation in 1975
and recalled obtaining Lewis’s waiver, consistent with his
“custom and practice.” The California Supreme Court was
not unreasonable in relying on Detective Lean’s testimony,
which the trial court credited.
Next, Lewis contends the California Supreme Court
erroneously concluded that Lewis did not request to speak
with his mother during the police questioning by crediting
Detective Lean’s testimony over Lewis’s. Lewis argues that
Detective Lean’s testimony did not conflict with Lewis’s
testimony because the detective could not recall whether
Lewis asked for his mother or not. We disagree with Lewis’s
characterization of Detective Lean’s testimony. Detective
Lean testified that, “[t]o the best of my recollection, I know
if they asked to speak to their mother or father, or any other
blood relative, it was like asking for an attorney and we were
to stop our interview at that point. And I don’t recall that
ever being done.” It was not unreasonable for the state court
to rely on this testimony to determine that Lewis did not ask
to speak with his mother.
Lewis also takes issue with the California Supreme
Court’s statements that Lewis “was keen enough to change
his story when Detective Lean revealed that the fire
originated from inside the car,” that he was close to 14 years
old, that he “remained in the same room for the ongoing
interviews with the detectives and investigator,” and that he
“received various citations and warnings from the police
before 1975.” Lewis, 28 P.3d at 67, 69, 71. These facts are
supported by the evidence in the record. Further, regarding
Lewis’s age, the California Supreme Court actually weighed
Lewis’s youth in his favor. See id. at 69 (reasoning that,
26 LEWIS V. ANDES
“[a]lthough defendant was less than 14 years old,” other
factors supported the conclusion that he made “a voluntary,
knowing, and intelligent waiver”). 7
Lewis also argues that his trial counsel was ineffective
for failing to argue during the penalty phase of the Simms
trial that Lewis asserted his Fifth Amendment rights by
requesting to speak to his mother during his interrogation for
the Rogers murder. Lewis argues that his “request to speak
to his mother was tantamount to a request for counsel and it
should have terminated the interrogation.” Lewis relies on
People v. Burton, which held when “a minor is taken into
custody and is subjected to interrogation, without the
presence of an attorney, his request to see one of his parents,
made at any time prior to or during questioning, must, in the
absence of evidence demanding a contrary conclusion, be
construed to indicate that the minor suspect desires to invoke
his Fifth Amendment privilege.” 491 P.2d 793, 798 (Cal.
1971). The California Supreme Court deemed Lewis’s
Burton claim waived because Lewis raised it for the first
time on direct appeal. Lewis, 28 P.3d at 70 (citing People v.
Raley, 830 P.2d 712, 725 (Cal. 1992), as modified on denial
of reh’g (Aug. 13, 1992)). 8
7
In his reply brief, Lewis also faults the California Supreme Court’s
failure to acknowledge what he considers to be the most important
circumstance surrounding his confession, “the racial and racist
overtones[] impact in this case.” Lewis forfeited this argument by failing
to raise it in his opening brief. See Fauber v. Davis, 43 F.4th 987, 1002
(9th Cir. 2022) (citing United States v. Ullah, 976 F.2d 509, 514 (9th Cir.
1992)).
8
The State argued in its brief to our court that Burton is inapposite
because “by the time of Lewis’s 1990 trial, the Burton rule was no longer
good law.” However, at oral argument, the State conceded that Burton
is applicable here because it was good law at the time of Lewis’s 1975
LEWIS V. ANDES 27
Lewis fails to show that his trial counsel was
constitutionally ineffective in failing to make a Burton
objection during the penalty phase. Even assuming that his
counsel’s performance fell below an objectively reasonable
standard, Lewis fails to show how he was prejudiced.
Lewis’s testimony regarding whether he continued to speak
with the detectives investigating the Rogers murder, after he
asked to speak to his mother, was inconsistent. The trial
court credited the testimony of Detective Lean, who testified
that Lewis made no such request. Lewis cites no authority
that permits us to second-guess this credibility determination
within the confines of his federal habeas petition.
2
Lewis next argues that his trial counsel was ineffective
at the penalty phase of the Simms trial by failing to introduce
evidence that Lewis was innocent of the Rogers murder.
Lewis originally raised this claim in his first state habeas
petition, and the California Supreme Court summarily
denied it on the merits. In support of this claim, Lewis
argues that his trial counsel: (1) failed to adequately object
when Sylvester Green, one of Lewis’s companions on the
day of the Rogers murder, invoked his Fifth Amendment
right to silence during the penalty phase of the Simms trial;
(2) failed to call witnesses who would have testified that
Lewis had no reason to kill Rogers, Rogers was a heavy
drinker who often smoked cigarettes and slept in his car, and
Lewis and his companions ran toward the burning car rather
than away from it; and (3) failed to “adequately investigate,
develop and present available eyewitness and scientifically
interrogation. The State therefore argues that, assuming Lewis’s trial
counsel should have made a Burton objection, Lewis has not shown that
he was prejudiced by that error.
28 LEWIS V. ANDES
reliable evidence that Roger’s death was accidental, not
homicidal.” Lewis relies on declarations from two witnesses
to the fire and an expert declaration challenging the State’s
arson experts.
None of Lewis’s arguments establish that his trial
counsel’s performance fell below an objectively reasonable
standard. Defense counsel unsuccessfully objected to
Green’s invocation of his Fifth Amendment privilege during
the penalty phase. Lewis cites no authority showing that
defense counsel had a basis to make any further challenge to
Green’s privilege claim. 9
Lewis also argues that additional witness testimony
could have shown that he was innocent of the Rogers
murder, but the potential testimony he identifies would have
been largely cumulative of evidence the jury heard during
the Simms trial. See Babbitt v. Calderon, 151 F.3d 1170,
1174 (9th Cir. 1998), as amended (Aug. 27, 1998)
(concluding that counsel’s failure to present cumulative
testimony was not deficient). The little testimony that was
not cumulative would not have rebutted Lewis’s admitted
motive for igniting the fire that killed Rogers or the other
expert and lay testimony about the circumstances of
Rogers’s death. Lewis’s remaining evidence was not part of
9
During the penalty phase of the Simms trial, defense counsel called
Green to testify about what he witnessed the day Rogers was killed. On
the advice of counsel, Green invoked his Fifth Amendment privilege in
response to defense counsel’s questions. Defense counsel eventually
objected to Green’s refusal to say whether he remembered speaking to
the defense investigator. Based on the information Green told the
defense investigator, defense counsel argued that nothing Green would
testify to could be considered inculpatory. The trial court overruled the
objection. After Green continued to invoke the Fifth Amendment,
defense counsel passed the witness.
LEWIS V. ANDES 29
the state court record when the California Supreme Court
denied Lewis’s claim, and it cannot be considered in an
AEDPA review of that decision. See Cullen v. Pinholster,
563 U.S. 170, 181–82 (2011) (holding that federal courts
may not consider new evidence in reviewing a state court
decision under 28 U.S.C. § 2254(d)). Because Lewis has not
shown that his trial counsel’s litigation of the Rogers murder
evidence was deficient, we do not decide whether Lewis was
prejudiced by his counsel’s performance.
B
We also affirm the district court’s denial of Lewis’s
certified penalty-phase claims related to his trial counsel’s
presentation of mitigation evidence. Lewis contends that
counsel was constitutionally ineffective by failing to
investigate, develop, and present evidence of: Lewis’s
childhood abuse, neglect, and abandonment; positive aspects
of Lewis’s character and the role of substance abuse in his
life; and Lewis’s mental deficits. 10 Lewis raised these
claims in his first state habeas petition, and the California
Supreme Court summarily denied them on the merits. The
district court ruled that the state court’s decision did not run
afoul of AEDPA because the court reasonably could have
determined that: (1) counsel’s performance was not deficient
due to the generally cumulative and speculative nature of the
unpresented mitigation evidence; and (2) any deficient
performance was not prejudicial in light of the “substantial
aggravating circumstances” and the weakness of the
unpresented mitigation evidence.
10
These arguments correspond to Claims 14, 15, and 16 of Lewis’s first
amended petition.
30 LEWIS V. ANDES
We agree with the district court that the state court could
reasonably have determined that Lewis had not shown that
defense counsel’s presentation of mitigation evidence at the
penalty phase of the Simms trial was deficient, and even if it
were deficient, Lewis had not shown that it was prejudicial.
Lewis’s counsel made a reasonable strategic decision to
focus on mercy and lingering doubt about Lewis’s guilt
rather than his upbringing, and the evidence he contends his
trial counsel should have presented would have been either
cumulative or insufficient in light of the State’s aggravating
evidence.
Lewis contends that his trial counsel was ineffective in
presenting evidence of his troubled upbringing because,
“[t]hough there were numerous lay witnesses available . . . ,
counsel contacted only three witnesses – and failed to
adequately interview and prepare them to testify
meaningfully in mitigation.” Lewis also argues that his trial
counsel was ineffective by not presenting evidence about
Lewis’s familial and personal history with substance abuse,
including consulting mental health experts on the topic.
Lewis points to a long family history of alcoholism,
including his maternal grandmother and grandfather, his
maternal uncle, and his mother. Lewis further argues that
his trial counsel failed to present evidence that Lewis’s
childhood was marred by racial prejudice and child abuse.
Lewis contends his trial counsel’s failure to present this
evidence cannot be ascribed to a tactical decision because
“defense counsel did not investigate it so they knew nothing
of it.” Finally, Lewis contends that his trial counsel was
ineffective in failing to provide his penalty-phase mental
health experts with information about “Lewis’s psycho-
social, familial and substance abuse history.” He contends
that his trial counsel did not give his penalty-phase experts
LEWIS V. ANDES 31
information about his childhood exposure to lead and
pesticides, the possibility that he suffered from fetal alcohol
syndrome, or his injuries from colliding with a truck while
riding his bicycle as a child. Lewis’s post-conviction expert,
Dr. Karen Froming, faults Lewis’s penalty-phase experts for
ignoring Lewis’s abnormal electroencephalogram (EEG)
results from 1975 and for failing to administer the Wechsler
Adult Intelligence Scale III (WAIS III) test to determine
Lewis’s general intellectual level. Lewis also criticizes his
trial counsel for having him meet with the two experts for
the first time just days before the penalty phase began.
Lewis has not shown that his trial counsel was deficient
in investigating and presenting mitigation evidence at the
penalty phase. First, he fails to establish that his trial counsel
did not investigate his background to discover mitigation
evidence. About a year before trial, the defense investigator
began contacting Lewis’s “voluminous list of witnesses” for
both phases of the trial, and counsel sought and obtained a
continuance to allow for that investigation. The record
shows that the jury was told about almost all of the material
information Lewis faults his counsel for failing to investigate
and present, including his mother’s alcoholism and its effect
on his development, his family’s poverty, the lack of
supervision during his childhood, his history of substance
abuse, and his enrollment in college for a short period of
time. And in addition to interviewing Lewis, the defense’s
two penalty-phase experts reviewed Lewis’s medical
records, conducted tests, and consulted with other experts.
Lewis’s EEG from 1990 was “essentially normal,” and the
WAIS III test, which Dr. Froming says Lewis’s trial experts
should have administered in 1990, was not published until
1997, see Pruitt v. Neal, 788 F.3d 248, 258 n.1 (7th Cir.
2015). Lewis has not shown that his trial counsel’s
32 LEWIS V. ANDES
investigation and presentation of expert witness testimony
fell below an objectively reasonable standard.
As for the evidence not presented to the jury, Lewis fails
to show that this was not a result of a reasonable tactical
decision by his trial counsel. See Strickland, 466 U.S. at 690
(explaining that “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable”). While presenting some
evidence of his childhood, Lewis’s trial counsel chose to
focus on testimony from Lewis’s family asking the jury to
spare his life, which “is a valid approach to mitigation.”
Livaditis v. Davis, 933 F.3d 1036, 1048 (9th Cir. 2019).
Counsel also invoked lingering doubt, which “has been
recognized as an extremely effective argument for
defendants in capital cases.” Williams v. Woodford, 384
F.3d 567, 624 (9th Cir. 2002), as amended (Sept. 9, 2004)
(quoting Lockhart v. McCree, 476 U.S. 162, 181 (1986))
(internal quotation marks omitted). Given these tactical
choices, the California Supreme Court reasonably could
have concluded that Lewis’s counsel was not deficient at the
penalty phase.
Even assuming his trial counsel was deficient in
presenting mitigation evidence at the penalty phase, Lewis
fails to show how he was prejudiced by those decisions.
Much of the unpresented evidence would have been
cumulative of evidence the jury heard, and some of it would
not have been wholly favorable to Lewis. For example, one
witness declaration stated that Lewis was the favored child
in his family. Another declaration stated that Lewis began
stealing at an early age. Other unpresented evidence would
have been weak or speculative. Lewis offers no evidence
that he suffers mental health impairments due to fetal alcohol
syndrome, exposure to pesticides and lead, or his bicycle
LEWIS V. ANDES 33
collision with a truck. Dr. Froming writes only that, based
on Lewis’s family medical history, these factors possibly
affected Lewis’s mental condition.
In addition, the California Supreme Court could have
reasonably concluded that the balance of the mitigating and
aggravating evidence failed to show prejudice. The
unpresented evidence of Lewis’s upbringing does not show
the type of nightmarish childhood that has been grounds for
habeas relief in other cases, see Williams, 529 U.S. at 395,
and the aggravating evidence was strong, including the
circumstances of the Simms murder, Lewis’s involvement in
the Rogers murder, and Lewis’s convictions for home
invasion and robbery of an elderly woman. In sum, even
assuming Lewis’s trial counsel was deficient in failing to
present additional evidence at the penalty stage, the district
court did not err by finding that the California Supreme
Court reasonably could have concluded that Lewis was not
prejudiced by his counsel’s performance.
C
Lewis also raises three uncertified claims on appeal. To
obtain a COA on these claims, Lewis “must demonstrate that
reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). This standard requires
“something more than the absence of frivolity or the
existence of mere good faith on [the petitioner’s] part.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (internal
quotation marks and citation omitted). We ordered and
34 LEWIS V. ANDES
received supplemental briefing on these uncertified claims.
See 9th Cir. R. 22-1(f). 11
1
Lewis seeks a COA on Claims 2 and 10 of his first
amended petition. Claim 2 argues that Pridgeon’s testimony
was unreliable, unintelligible, and internally inconsistent
and was therefore insufficient under Jackson v. Virginia, 443
U.S. 307 (1979), to support Lewis’s convictions for first-
degree murder and robbery. Claim 10 similarly argues that
there was insufficient evidence to support the jury’s finding
that Lewis robbed Simms. On appeal, Lewis collapses
Claims 2 and 10 together and argues that Pridgeon’s
testimony was insufficient to support a robbery conviction,
felony murder based on robbery, and a robbery special
circumstance. 12
We deny a COA on Claims 2 and 10. For claims
challenging the sufficiency of the evidence, “the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Id. at 319 (emphasis in original).
11
The State argues that these claims are procedurally defaulted. We do
not see grounds to grant COAs on these claims. Even if we did, a
procedural default analysis is not required for claims that lack merit. See
Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals
courts are empowered to, and in some cases should, reach the merits of
habeas petitions if they are . . . clearly not meritorious despite an asserted
procedural bar.” (citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997))).
12
The jury was instructed on both premeditation and felony-murder
theories of first-degree murder. The jury issued a general verdict of first-
degree murder that did not specify whether it was based on premeditation
or on felony murder.
LEWIS V. ANDES 35
Whether Pridgeon’s testimony was credible was within the
exclusive province of the jury. See Long v. Johnson, 736
F.3d 891, 896 (9th Cir. 2013). Additionally, the jury
reasonably could have relied on the evidence that
corroborated Pridgeon’s description of how Simms was
murdered, including the blood evidence obtained from the
shoes Lewis was wearing when he was arrested, the
pathologist’s testimony about the nature of Simms’s injuries,
the damage to Simms’s blouse and the money found in her
bra, and the fact that Pridgeon led police to the discarded
murder weapon—a two-by-four that yielded blood evidence
and matched a wood chip taken from Simms’s hair. The jury
also reasonably could have relied on the expert testimony
that Pridgeon was capable of providing a generally accurate
account of what he had witnessed on the night Simms was
murdered even though he was cognitively impaired.
2
Lewis also seeks a COA on Claim 12, which alleges
there was juror misconduct based on two jurors’ reliance on
“the doctrine of everlasting life” when they voted to impose
the death penalty. The jury deliberated for four days at the
end of the penalty phase. Post-trial, a member of the jury
signed a declaration stating that, during penalty phase
deliberations, the jury foreperson “asked why people were
having a difficult time making a decision,” and one juror
replied that “she needed some time to make the right
decision, knew what was right, but was having difficulty in
voting.” In response, the foreperson allegedly “said he did
not know if it would help her, but what had helped him make
his decision was that [Lewis] had been exposed to Jesus
Christ and if that was in fact true [Lewis] would have
‘everlasting life’ regardless of what happened to him.”
36 LEWIS V. ANDES
The trial court denied Lewis’s motion to set aside the
verdict based on these statements. Lewis, 28 P.3d at 71. It
also denied Lewis’s alternative request for a hearing to
investigate juror misconduct. Id. On direct appeal, the
California Supreme Court held that “[t]he trial court
correctly determined that [Lewis’s] proffered evidence was
inadmissible” under California’s no-impeachment rule
because “[t]he exchange between [the two jurors] clearly
involved their decisionmaking processes.” Id. at 72 (citing
Cal. Evid. Code § 1150(a)). The court further concluded that
Lewis’s proffered evidence did not fit under an exception to
California’s no-impeachment rule for a juror’s consideration
of, or reference to, an extraneous source. Id. The district
court found that the California Supreme Court “was
reasonable in finding [the foreperson’s] statements did not
impermissibly influence sentence selection” because his
“statements reasonably could be seen as deliberative rather
than improper extrinsic evidence.” Lewis argues that the
California Supreme Court’s decision “was contrary to and
an unreasonable application of Mattox v. United States, 146
U.S. 140 (1892) and Remmer v. United States, 347 U.S. 227
(1954).” “The Mattox-Remmer framework set forth by the
Supreme Court governs juror misconduct claims involving
consideration of extraneous evidence during
deliberations . . . .” Kipp v. Davis, 971 F.3d 866, 881 (9th
Cir. 2020).
We deny a COA on Claim 12 because we are not
persuaded that reasonable jurists could find the district
court’s assessment of the California Supreme Court’s
decision “debatable or wrong.” Slack, 529 U.S. at 484. The
California Supreme Court reasoned that the foreperson’s
comments “did not improperly refer to an extraneous
source” because they merely reflected his “knowledge and
LEWIS V. ANDES 37
beliefs” based on his “everyday life and experience,” and
jurors sharing their personal religious beliefs during penalty
deliberations is not unexpected or improper. Id. at 72–73
(quoting People v. Riel, 998 P.2d 969, 1015 (Cal. 2000)).
Lewis fails to show that this conclusion was unreasonable.
The Mattox-Remmer framework applies only if an
extraneous source influenced the jury’s deliberations. See
Fields v. Brown, 503 F.3d 755, 779–80 (9th Cir. 2007) (en
banc). 13 Because Lewis fails to show that the California
Supreme Court was unreasonable in concluding that the jury
did not consider an extraneous source, we do not reach his
Mattox-Remmer argument.
Construed broadly, Lewis’s briefing also raises an
argument that the foreperson’s comments constituted
religious discrimination in violation of Lewis’s
constitutional rights. He cites no authority that supports this
argument. Lewis’s attempt to invoke Peña-Rodriguez v.
Colorado is misplaced because Peña-Rodriguez was
decided 16 years after the California Supreme Court
considered his juror-misconduct argument. See 580 U.S.
206, 225 (2017) (holding that the Sixth Amendment requires
an exception to the no-impeachment rule “where a juror
makes a clear statement that indicates he or she relied on
racial stereotypes or animus to convict a criminal
defendant”); see also Brown v. Davenport, 596 U.S. 118,
136 (2022) (“[S]tate-court decisions are measured against
13
Under the Mattox-Remmer framework, a court first asks whether the
extraneous evidence “was ‘possibly prejudicial.’” Godoy v. Spearman,
861 F.3d 956, 962 (9th Cir. 2017) (en banc) (quoting Mattox, 146 U.S.
at 150). If the court finds the possibility of prejudice, the extraneous
evidence is “deemed presumptively prejudicial,” and the burden shifts to
the State to show that the jury’s consideration of the extraneous evidence
was harmless. Id. (quoting Remmer, 347 U.S. at 229).
38 LEWIS V. ANDES
[the Supreme] Court’s precedents as of the time the state
court renders its decision and cannot be held unreasonable
only in light of later decided cases.” (internal quotation
marks and citation omitted)).
IV
The California Supreme Court reasonably rejected
Lewis’s claims that the admission of his confession to the
Rogers murder was unconstitutional and that his trial counsel
was ineffective in presenting mitigation evidence at the
penalty stage. Reviewing under AEDPA’s deferential
standard, we affirm the district court’s denial of Lewis’s first
amended petition for writ of habeas corpus.
AFFIRMED.