                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, Warden,
            Respondent-Appellee.



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

RON DAVIS, Warden,
           Respondent-Appellant.         ORDER AND
                                          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 1, 2017
2                       ANDREWS V. DAVIS

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

                             Order;
                     Opinion by Judge Ikuta;
                    Dissent by Judge Murguia


                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel withdrew an opinion filed August 5, 2015;
denied as moot a petition for rehearing and petition for
rehearing en banc; and filed a superseding opinion in an
appeal and cross-appeal arising from Jesse James Andrews’s
conviction and capital sentence for three murders.

    The panel reversed the district court’s grant of relief on
Andrews’s ineffective-assistance claim that he was prejudiced
by his counsel’s failure to investigate and present additional
mitigating evidence at the penalty phase of his trial. The
panel held that 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.

    The panel dismissed as unripe the sole claim certified by
the district court for appeal – that California’s use of its lethal
injection protocol to execute Andrews would violate his


  *
    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

Eighth Amendment rights. The panel held that because no
new protocol was in place at the time the district court ruled
on the claim, the district court erred in entertaining the claim.

    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.

     Dissenting in part, Judge Murguia would affirm the
district court's order granting Andrews relief due to
ineffective assistance of counsel at the penalty phase of his
trial.
4                   ANDREWS V. DAVIS

                       COUNSEL

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

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


                         ORDER

    The opinion filed August 5, 2015, and reported at
798 F.3d 759, is withdrawn. Because the court’s opinion is
withdrawn, appellant/cross appellee’s petition for rehearing
and petition for rehearing en banc is moot. A superseding
opinion will be filed concurrently with this order. Further
petitions for rehearing and petitions for rehearing en banc
may be filed.
                     ANDREWS V. DAVIS                         5

                          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 the
district court’s 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
6                   ANDREWS V. DAVIS

       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
             ANDREWS V. DAVIS                      7

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
8                    ANDREWS V. DAVIS

       ‘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.
                        ANDREWS V. DAVIS                               9

    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.

    At the penalty phase, both the prosecutor and defense
counsel made brief presentations. 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.
10                   ANDREWS V. DAVIS

been convicted of armed robbery in May 1968, convicted of
escape in November 1969, and 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
out that in this very case, Sanders received a sentence of only
                     ANDREWS V. DAVIS                       11

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 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.

                              1

    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. Under California law,
“[b]ecause appellate courts are ill-suited to conduct
evidentiary hearings, it is customary for appellate courts to
appoint a referee to take evidence and make
recommendations as to the resolution of disputed factual
issues.” People v. Romero, 883 P.2d 388, 393 (Cal. 1994), as
modified on denial of reh’g (Jan. 5, 1995). While a referee’s
findings on factual questions are not binding on the California
Supreme Court, they “are entitled to great weight when
12                  ANDREWS V. DAVIS

supported by substantial evidence.” In re Johnson, 957 P.2d
299, 307 (Cal. 1998). The six questions provided to the
referee were:

       1. What mitigating character and background
       evidence could have been, but was not,
       presented by petitioner’s trial attorneys at his
       penalty trial?

       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?

       5. What evidence, damaging to petitioner, but
       not presented by the prosecution at the guilt or
       penalty trials, would likely have been
       presented in rebuttal, if petitioner had
       introduced any such mitigating character and
       background evidence?

       6. Did petitioner 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 petitioner request?
                    ANDREWS V. DAVIS                       13

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

    The referee received the testimony of more than
50 witnesses over the span of six years. Id. at 660. As a
threshold matter, the referee pointed out two factors that the
California Supreme Court should take into account in
evaluating the information obtained in the reference hearing.
First, the referee acknowledged that “[t]he length of time
available to develop, expand and refine the depth of the
evidence presented at this reference hearing obviously creates
an artificial setting and this court notes that the abundance
and massiveness of the evidence presented could not and
would not have been the same in an original trial.” Id. at 660
n.2. Among other things, “[s]trategic considerations alone
would have undoubtedly resulted in a greater refinement of
the quality of evidence presented.” Id. Second, the referee’s
consideration of counsel’s work was hindered by the fact that
the lead counsel, Gerard Lenoir, died before the referee
conducted the hearing, and only the secondary counsel,
Halvor Miller, was available. Id. at 663 n.7. Miller could not
recall the full scope of Lenoir’s investigation. Id. at 663.

    In her report, the referee provided one-paragraph
summaries and detailed factual findings in response to each
question. The California Supreme Court both summarized
the referee’s findings and explained the weight it gave to
these findings. Id. at 660–65.

     In response to the first question (what mitigating
character and background evidence could have been, but was
not, presented by petitioner’s trial attorneys at his penalty
trial), 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
14                  ANDREWS V. DAVIS

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 found
the following regarding Andrews’s 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 with children by another marriage,
of whom Andrews was jealous. Id. at 660, 670. Around that
time Andrews’s grandfather, a “pivotal figure” in his life,
died. Id. at 660 (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.

    Summarizing the referee’s report, the California Supreme
Court stated that “[a]t Mt. Meigs, petitioner encountered
appalling conditions.” Id. According to the referee’s report,
one witness described it as “a farming operation and a penal
colony for children,” while others described “inhuman
conditions, inadequate food and clothing and severe beatings”
with “sticks, broom handles, tree limbs, and hoe handles . . .
or fan belts.” Among other things, the referee found that
Andrews “was subjected to beatings, brutality, inadequate
conditions and sexual predators.” Id. at 661. Further, “[h]is
passiveness and small physique caused him to be a target of
                    ANDREWS V. DAVIS                       15

older, tougher boys, from whom no protection or separation
was provided.” Id.

    After his release from Mt. Meigs, Andrews began to
associate with Freddie Square, an older boy with
“manipulative and criminal tendencies.” Id. In September
1966, three months after Andrews’s release, Andrews and
Square entered a grocery store, drew guns, and announced
that they were conducting a robbery. Id. When “the store
clerk placed his hand down the front of his apron,” Square
shot the clerk, killing him. Id. Andrews “acted as a lookout
in the robbery, but played a more active role when he and
Square robbed a taxi driver during their getaway,” and used
the taxi as a getaway car. Id. At the reference hearing, Harry
Woodall, the driver of the stolen taxi, testified that Andrews
and Square robbed him at gunpoint. Id. at 665. While
pointing a gun at Woodall, Andrews twice said, “Let’s shoot
him.” Id. Andrews and Square stole Woodall’s wallet, then
ordered him out of the taxi and fired three shots at him;
Andrews fired at least two of the shots. 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. He
escaped from prison and was convicted of that offense in
1969. Id. at 659. He remained in prison until 1976.

    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,
16                  ANDREWS V. DAVIS

       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. at 661 (internal quotation marks omitted). The referee
stated that 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, “when circumstances permitted, he tended to hold
positions of responsibility.” Id. At the same time, however,
Andrews “was personally involved in violence, including the
stabbings of two inmates who had been threatening him.” Id.
at 661 (internal quotation marks and alterations omitted).

    Shortly after his release from prison in 1976, Andrews
engaged in an attempted robbery of a laundry. Id. According
to testimony at the reference hearing:

       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
                    ANDREWS V. DAVIS                       17

       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 and held in
Mobile County Jail. Id. at 661. After a failed attempt to
escape from the jail, he succeeded in escaping on his second
try, and fled to California. Id. at 661 & n.5.

    In California, Andrews met Debra Pickett, with whom he
had a stable relationship. Id. at 661. The couple had a child,
and Andrews held a job during this time. Id. But by
December 1979, Andrews had resumed using cocaine and
left his job and family. Id. Soon after, he committed the
three murders at issue here. Id.

    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 defense 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
defense 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 defense psychiatrist testified that Wheeler, one
18                   ANDREWS V. DAVIS

of the three victims in the December 1979 murders, had
called Andrews a “faggot” a few days before the murders
occurred, and Andrews’s PTSD would predispose him to
overreact to the slur. Id. at 680. The psychiatrist concluded
that Andrews was “affected by serious emotional disturbance
when he committed the murders.” Id.

     The California Supreme Court then recounted the
referee’s findings on questions two, three, and four. These
questions addressed the investigative steps trial counsel took
to gather mitigating evidence for the penalty phase, steps the
trial counsel could have taken to do so, and the constraints
that weighed against the trial counsel investigating or
presenting mitigating character and background evidence at
the penalty phase. Id. at 662–64. According to the referee,
trial counsel hired defense investigators for the guilt phase,
while the counsel themselves did the investigative work for
the penalty phase. Id. at 663. The trial counsel took two trips
to Mobile, one in 1983 and another in 1984. On the first trip,
they spent a day searching court records for Andrews’s prior
convictions and documents relating to his background. Id.
They also searched for relatives and potential witnesses in
Andrews’s neighborhood. Id. On the second trip, counsel
obtained information about Andrews’s prior murder
conviction at the county courthouse. Id. Counsel also
traveled to Pensacola, Florida, where they interviewed
Andrews’s mother. Id. During the course of the interview,
they obtained information that Andrews was a slow learner,
that his grandparents raised him, and that he started getting
into trouble as a teenager. Id. Miller remembered telling
Andrews’s mother that if he obtained Andrews’s permission
to obtain information from family members or other contacts,
he or Lenoir would contact her for further information. Id.
                     ANDREWS V. DAVIS                        19

    The California Supreme Court also summarized the
referee’s findings about the constraints placed on trial counsel
in conducting their penalty phase investigation, though the
death of Lenoir limited this aspect of the referee’s
investigation. Id. at 663–64. According to the referee, there
were tactical, rather than financial, constraints. Id. Miller
recalled the main tactical constraint as “the adamancy of
petitioner’s opposition to having his family, and in particular
his mother, testify at the trial.” Id. at 664. According to the
referee, “Mr. Miller was very consistent in his testimony
regarding petitioner’s refusal to cooperate in this area, and
this position is supported circumstantially by statements made
by petitioner as well as testimony from the prosecutor.” Id.
Miller stated that Andrews had threatened to disrupt the
proceedings if his directions were not followed, and both
counsel believed this threat was genuine. Id. “Acceding to
these wishes,” neither Miller nor Lenoir “pursued a full
investigation of petitioner’s background or family and never
learned the names of family members with one or two
exceptions.” Id.

    In addition to the constraints imposed by Andrews, the
referee found that counsel were concerned about the effects
of using prisoners as witnesses. Id. Miller doubted that
jurors would be impressed by the credibility and demeanor of
the prisoners, and he was concerned that calling prisoners as
witnesses would risk disclosure of Andrews’s misconduct in
prison. Id. The referee found that Andrews had been
involved in two stabbings of other inmates and had escaped
from custodial facilities on two occasions. Id. Further, the
referee found that the inmates who provided testimony at the
reference hearing had “substantial violent criminal records
and these offenses included a substantial number of escapes.”
Id. Finally, Miller testified that he and Lenoir decided not to
20                  ANDREWS V. DAVIS

present evidence about Andrews’s upbringing, because the
house and neighborhood in which Andrews grew up
resembled the house and neighborhood in which Miller was
raised, and so counsel thought a “poverty-presentation”
lacked viability. Id.

    The California Supreme Court also summarized the
referee’s views on additional investigative steps that counsel
could have taken. Id. at 662–63. The referee found that
obtaining information regarding the circumstances of
Andrews’s upbringing, the impact of the correctional
facilities in Alabama and Andrews’s adult experiences, and
the psychiatric aspects of Andrews’s history did not call for
“any extraordinary efforts beyond simple persistence.” Id. at
662. The referee believed that Andrews’s mother could have
provided more information about Andrews’s upbringing and
directed counsel to other family members and acquaintances
who could have provided general information regarding
schooling issues. Id. Counsel could have obtained addresses
and information about additional witnesses through publicly
available documents or through word of mouth. Id. The
referee also believed that “[s]everal areas of inquiry were
available relating to petitioner’s experiences in the
correctional system in Alabama.” Id. Counsel could have
obtained prison records from the juvenile and adult
correctional systems and could have contacted inmates
referenced in those records. Id. Or counsel could have
conducted “standard legal research of public records relating
to lawsuits involving these institutions.” Id. While
acknowledging that “petitioner’s cooperativeness was a
significant issue,” the referee found that counsel could have
developed the information presented at the reference hearing
“through outside sources in the absence of any cooperation
from the petitioner.” Id. at 663.
                     ANDREWS V. DAVIS                        21

    In addition, although there was “no significant written
history” in the area of mental health, and there was little
evidence of “family members having mental impairments,”
the referee found that counsel could have appointed
psychiatric experts. Id. at 662. The referee acknowledged
that “[a]ny such inquiry may not necessarily have resulted in
the availability of evidence of the diagnoses of organic brain
impairment, learning disorders, or of post traumatic stress
disorder.” Id. According to the referee, “[t]he quality of
standardized personality tests was not the same, the
knowledge of post traumatic stress disorder was in an infancy
stage, and the resulting diagnosis may not necessarily have
been favorable to the petitioner.” Id. at 662–63.

    In addressing question five (what evidence, damaging to
petitioner, but not presented by the prosecution at the guilt or
penalty trials, would likely have been presented in rebuttal, if
petitioner had introduced any such mitigating character and
background evidence), the referee found that the
prosecution’s rebuttal presentation could have included
evidence about two of Andrews’s prior convictions. Id. at
664. First, the prosecutor could have presented testimony
from the taxi driver in the 1968 robbery, who would have
testified he heard Andrews say “[l]et’s shoot him,” and then
fired at least two shots at him. Id. at 665. 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. The jury had
heard that Andrews was convicted of these offenses, but it did
not hear the facts on which the conviction was based; the
prosecutor could have introduced a complete description of
the underlying events as aggravating evidence, to show
22                   ANDREWS V. DAVIS

Andrews’s greater moral culpability for the rape and triple-
murder. Id. at 659, 664.

    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
state 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 strongly indicated
that he had not suffered brain damage. Id. In addition, the
expert would have testified that Andrews’s “behavior on the
night of the murders showed planning and thought, and it was
therefore unlikely that petitioner was under the influence of
PCP when he committed the murders.” Id.

    Finally, in response to question six (did petitioner himself
request that either the investigation or the presentation of
mitigating evidence at the penalty phase be curtailed in any
manner, and, if so, what specifically did petitioner request),
the referee concluded that there was no doubt that Andrews
“adamantly” refused to allow counsel to approach his mother
and family or to have them testify. Id. This conclusion was
based on the trial records and the consistent testimony of
witnesses at the reference hearing. Id. In response to specific
questioning from the trial court “regarding his reluctance to
have his mother called,” and in the face of the trial court’s
advice that his mother’s testimony would be valuable,
Andrews “was very precise in his response, telling the judge
that he fully understood and that this was his choice and no
one else’s.” Id. (emphasis omitted). The referee further
noted that the lead counsel, Lenoir, “represented on the
                          ANDREWS V. DAVIS                                23

record at trial that petitioner refused to have his mother called
and that he ‘had his reasons,’ which Mr. Lenoir did not wish
to disclose to the court.” Id. The referee also found that
“petitioner went so far as to threaten to disrupt the trial if his
mother were called.” Id. Andrews’s opposition to having
counsel involve his family was corroborated by his older
sister and uncontradicted by his mother.2 Id.

                                      2

    After considering “the record of the hearing, the referee’s
factual findings, and petitioner’s original trial,” the California
Supreme Court concluded that “petitioner received
constitutionally adequate representation, and any inadequacy
did not result in prejudice.” Id. at 659.

    In reaching this conclusion, the court began by stating the
requirements for an ineffective assistance of counsel claim
under Strickland v. Washington, 466 U.S. 668 (1984). First,
the court stated that “[t]o prove a claim of ineffective
assistance of counsel at the penalty phase trial, the petitioner
must establish that counsel’s performance [(1)] did not meet
an objective standard of reasonableness under prevailing
professional norms and [(2)] that he suffered prejudice
thereby.” In re Andrews, 52 P.3d at 667 (internal quotation
marks omitted).




 2
   At the reference hearing, Andrews disputed the finding that he did not
want his family involved, but the California Supreme Court noted that “the
referee credited Miller’s testimony that [Andrews] objected not only to his
mother’s involvement, but also to that of any relatives,” and gave the
referee’s credibility determination the “great weight” to which it is entitled
under California law. Id. at 667.
24                   ANDREWS V. DAVIS

     Turning first to the deficiency prong, the California
Supreme Court concluded that Andrews had not established
that his counsel’s performance was defective. Its reasoning
was as follows. Under Strickland, “the Supreme Court
specifically addressed counsel’s duty to investigate and made
clear courts should not equate effective assistance with
exhaustive investigation of potential mitigating evidence.”
Id. at 668. Any judicial scrutiny “must be highly deferential,”
and courts must avoid second guessing counsel’s assistance
and must “eliminate the distorting effects of hindsight.” Id.
at 667 (quoting Strickland, 466 U.S. at 689). Further, while
“counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary,” the Supreme Court made clear
that “a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.” Id. at
668 (quoting Strickland, 466 U.S. at 690–91). Moreover,
“valid strategic choices are possible even without extensive
investigative efforts.” Id. (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)). Finally, “[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the
defendant’s own statements or actions,” and may be “based,
quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.” Id.
(quoting Strickland, 466 U.S. at 691).

    Applying this deferential standard in light of the evidence
developed by the referee, the California Supreme Court
concluded that “counsel’s decision not to mount an all-out
investigation into petitioner’s background in search of
mitigating circumstances was supported by reasonable
professional judgment.” Id. at 669 (quoting Burger, 483 U.S.
at 794–95).
                         ANDREWS V. DAVIS                              25

    First, the California Supreme Court found that counsel
could have reasonably decided not to pursue information
from Andrews’s family in light of Andrews’s decision to
curtail such an investigation. The court noted that while “the
referee found that counsel could have discovered the
mitigating evidence presented at the reference hearing with
‘simple persistence,’” the evidence showed that Andrews
limited the investigation counsel could undertake by insisting
that counsel not involve his family. Id. at 668. Counsel were
within the range of professional competence in complying
with Andrews’s wishes, because under California law, “an
attorney representing a defendant at the penalty phase of a
capital case is not required to present potentially mitigating
evidence over the defendant’s objections.” Id. (quoting
People v. Kirkpatrick, 874 P.2d 248, 262 (Cal. 1994)).3

    Further, to the extent counsel interviewed Andrews’s
mother and attempted to contact family members despite
Andrews’s objection, the court found that counsel could have
reasonably concluded that the information they obtained was
not powerfully mitigating. Id. at 670. Andrews’s mother
“did not abandon him, but left him with an extended family
including his ‘loving and responsible’ grandfather, regularly

 3
    Despite the constraints imposed by Andrews, the California Supreme
Court found that Andrews’s counsel traveled to Mobile, Alabama twice
to search for relatives, potential witnesses, and legal documents, and also
traveled to Pensacola, Florida to interview Andrews’s mother. In re
Andrews, 52 P.3d at 663. The dissent concedes as much, Dissent at 97–98
n.1, so its finding that Andrews’s counsel conducted “virtually no penalty
phase investigation” is merely an expression of the dissent’s negative
evaluation of counsel’s efforts. Dissent at 97. But because the California
Supreme Court determined that counsel was reasonable in not pursuing
further information, the only question raised under the Antiterrorism and
Effective Death Penalty Act (AEDPA) is whether this was an objectively
unreasonable application of Strickland. See Richter, 562 U.S. at 101.
26                      ANDREWS V. DAVIS

sent money and clothing to her children, and returned several
years later to remain in the family home.” Id. The testimony
from family members generally showed Andrews’s early
upbringing and family life “to be relatively stable and without
serious privation or abuse. All but one of his siblings
completed high school, and only one had a minor brush with
the law.” Id. Counsel’s preliminary investigation showed
that Andrews’s childhood was not mitigating: “Miller viewed
petitioner’s childhood surroundings as unimpressive because
he found them comparable to his own.” Id. at 673. 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. Moreover, his stable conditions in California
could have led the jury to conclude that Andrews’s
“abandonment of his own son to pursue a cocaine habit and
his former criminal ways would belie the suggestion he
merited sympathy due to his parents’ drinking and
abandonment and his grandfather’s death.” Id. at 671.
“Under these circumstances, counsel could reasonably reject
a background mitigation strategy in favor of an alternate basis
to plead for petitioner’s life.” Id. at 673.

    Second, the California Supreme Court found that counsel
could have reasonably decided not to develop evidence
regarding the conditions of Andrews’s confinement. Id. at
670–71.4 Relying in part on the referee’s findings, the


  4
     Relying on the opinion of the dissenting Justice in the California
Supreme Court’s opinion in this case, In re Andrews, 52 P.3d at 681
(Kennard, J., dissenting), the dissent claims that Andrews’s attorneys
rendered ineffective assistance because they allegedly failed to ask
Andrews any questions regarding his prison conditions. Dissent at
100–101. But under AEDPA, we do not perform such a de novo review
of a petitioner’s Strickland claim; rather, we ask only whether the state
                     ANDREWS V. DAVIS                       27

California Supreme Court noted that while the conditions in
which Andrews had been incarcerated “leaves no doubt
petitioner endured horrifically demeaning and degrading
circumstances,” counsel could reasonably conclude that
introducing evidence about these conditions from former
inmates could have “proved a double-edged sword,” because
the jury could have had negative impressions of the witnesses
and the evidence that would color their views of Andrews.
Id. The witnesses testifying to the conditions under which
Andrews was incarcerated included “one death row inmate,
with serious felony records for murder, rape, and armed
robbery,” as well as many inmates who “had themselves
engaged in brutality while in prison and escaped with some
frequency.” Id. at 671. The jury could have drawn an
“unfavorable comparison” with Andrews in both cases, and
“[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.” Id. Moreover, the witnesses’ “criminal histories
would automatically subject them to impeachment.” Id. The
court also found that hearing such witnesses testify about
brutal conditions in Alabama would “raise the question of
why petitioner so readily resorted to crime when he escaped
the brutal and predatory conditions in Alabama and relocated
to California, where he found work and started a family.” Id.
Counsel could also reasonably conclude that having inmates
describe the Alabama prison conditions would “potentially
open the door to additional evidence of petitioner’s criminal




court’s application of Strickland was objectively unreasonable.
Harrington v. Richter, 562 U.S. 86, 101 (2011).
28                       ANDREWS V. DAVIS

past.” Id. at 673.5 Among other things, “evidence of prison
conditions could have led to the jury’s learning of petitioner’s
second escape from custody,” which could have “created a
danger defense counsel reasonably sought to avoid.” Id. at
669.6


 5
   The dissent erroneously argues that no reasonable counsel could have
decided to avoid the dangers of relying on prisoner testimony because “the
Mt. Meigs evidence was not dependent upon testimony from prisoners”
but rather could have been offered by the “experts and respected
observers” who testified at Andrews’s state court evidentiary hearing.
Dissent at 99–100, 102–103. In reaching this conclusion, the dissent
substitutes its de novo finding for the findings of the California Supreme
Court, which held that “whatever mitigating evidence may have been
disclosed by pursuing the conditions of incarceration petitioner
experienced, counsel knew such evidence would come primarily from the
testimony of petitioner’s fellow prisoners, many of whom were hardened
criminals with serious felony records.” In re Andrews, 52 P.3d at 668–69.
Under 28 U.S.C. § 2254(d)(2), a federal court “may not second-guess” a
state court’s factual findings unless the state court was “not merely wrong,
but actually unreasonable” in light of the record before it. Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004). The dissent could not
reasonably conclude that the California Supreme Court’s conclusion was
objectively unreasonable given that it is not clear that the “experts and
respected observers” who testified at the state court evidentiary hearing,
which occurred almost a decade after Andrews’s sentencing hearing,
would have been available to testify at Andrews’s sentencing hearing in
1984.
 6
   The dissent argues that the California Supreme Court was unreasonable
in excusing counsel’s failure to discover Mt. Meigs evidence based on
Andrews’s refusal to involve his family. Dissent at 99–100. This strained
reading of the California Supreme Court’s broad statement about
mitigating evidence is itself unreasonable. In fact, the California Supreme
Court never stated that there was a connection between family restrictions
and prison conditions. Rather, the court concluded that Andrews’s
restrictions on his family’s involvement would have limited counsel’s
ability to develop Andrews’s background and childhood. In re Andrews,
52 P.3d at 662 (noting that, if permitted, “[t]rial counsel could have
                         ANDREWS V. DAVIS                              29

    Third, the California Supreme Court found that counsel
could have reasonably decided not to introduce expert
testimony on Andrews’s mental health because “[t]he
prosecutor could have exploited the testimony of the mental
health experts to petitioner’s disadvantage.” Id. at 670. The
court noted that one of the experts at the reference hearing
testified “that convicts tend to react with rage to perceived
insults, behavior they find difficult to shed even when
discharged,” and while this may have explained Andrews’s
actions, “it does not necessarily create a sympathetic
impression” because “[t]he jury could just as readily infer
petitioner was unable to control lethal impulses on the
slightest provocation.” Id. Moreover, there would have been
a battle of the experts regarding whether Andrews had
suffered any brain damage at all. Id. And “[a]s the reference
hearing demonstrated, a mental health penalty defense would
also have given the prosecution several opportunities to
repeat the circumstances of the crime as well as petitioner’s
past criminality in questioning the experts on both direct and
cross-examination as to whether petitioner exhibited an
antisocial personality rather than some form of mental
impairment.” Id.

   Finally, the California Supreme Court concluded that
counsel had been reasonable in adopting the strategic


contacted petitioner’s family to develop his background and childhood”).
On the other hand, the California Supreme Court concluded that
“[e]vidence relating to the impact of the juvenile and adult correctional
systems could have been developed by obtaining prison records and
contacting inmates referenced in those records as well as conducting
standard legal research of public records relating to lawsuits involving
these institutions,” id. (emphasis added), and the main constraint on using
this evidence was “the inherent problems of calling prisoners as
witnesses,” id. at 664.
30                       ANDREWS V. DAVIS

approach of minimizing Andrews’s “culpability by
circumscribing his background and mitigating his criminal
responsibility.” Id. at 669. In implementing this strategy,
counsel portrayed Andrews as “a follower rather than
violently antisocial” and “urged the jury to consider in
mitigation the fact that others who had committed more
heinous multiple murders had been sentenced to life without
possibility of parole and that [Andrews’s co-defendant]
received a comparatively lighter sentence.” Id.7 According
to the California Supreme Court, this approach “not only
presented a reasonable case for sparing petitioner’s life under
the circumstances, but foreclosed the introduction of
substantial aggravating evidence in rebuttal or on cross-
examination that could have undermined the defense by
depicting petitioner as aggressive and desensitized to
violence.” Id. (citation omitted).8


 7
    The dissent criticizes the California Supreme Court for concluding that
Andrews’s counsel adopted a reasonable strategy by, among other things,
portraying Andrews as a follower who was less culpable than others.
Relying again on the dissenting California Supreme Court Justice, the
dissent claims that “the only evidence before the jury was that petitioner
was the instigator rather than a follower.” Dissent at 104 (quoting In re
Andrews, 52 P.3d at 682 (Kennard, J., dissenting)). Once again, the
dissent’s de novo fact finding is contrary to the California Supreme
Court’s reasonable conclusion based on evidence that the jury had before
it a stipulation regarding Andrews’s role in the 1966 grocery store robbery
which portrayed Andrews as a follower. In re Andrews, 52 P.3d at 659.
 8
   Andrews and the dissent argue that the prosecutor would not have put
on additional rebuttal evidence. Dissent at 107, 115. But the California
Supreme Court rejected this argument, finding that the presentation of
mitigating evidence would have prompted the prosecutor to shift the focus
of his penalty phase case, put on additional witnesses, and use cross-
examination and closing argument to further damage Andrews’s
mitigation case. In re Andrews, 52 P.3d at 665–66. Contrary to the
dissent, Dissent at 108 n.5, federal courts must defer to the state court’s
                         ANDREWS V. DAVIS                                31

    Given these valid reasons for not pursuing Andrews’s
background, and the fact that “a lengthy presentation of a
broad range of witnesses describing in detail various aspects
of petitioner’s background” would “have been atypical for a
penalty phase defense” at the time of the trial, id., the court
concluded that “counsel’s strategic decision to limit the scope
of their investigation of mitigating background evidence and
not to present such evidence at the penalty phase came within
‘the wide range of reasonable professional assistance,’” id. at
671 (quoting Strickland, 466 U.S. at 689).

                                     3

   The California Supreme Court next confirmed that this
conclusion was consistent with then clearly established


factual findings, see, e.g., 28 U.S.C. § 2254(e) (“In a proceeding instituted
by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct.”). The
California Supreme Court noted that it was “clear from the record that
much damaging testimony regarding petitioner’s own violent conduct in
prison and other circumstances desensitizing inmates to violence could
have, and undoubtedly would have, been elicited on cross-examination.”
Id. at 666. Among other evidence, the testimony of the taxi driver in the
1968 robbery would have rebutted witnesses who characterized petitioner
as a follower by “demonstrat[ing] petitioner could and did take the
initiative for violence” and the police officer’s testimony in the 1977
laundry robbery would have shown “petitioner’s lack of reluctance to use
violence to obtain his ends.” Id. The court therefore concluded that
“substantial evidence supports the referee’s finding that presenting the
mitigating evidence would have opened the door to damaging rebuttal.”
Id. In repeating Andrews’s claim that the prosecutor from Andrews’s trial
would not have introduced rebuttal witnesses had the defense presented
evidence of Andrews’s prison conditions, Dissent at 107, 115, the dissent
errs by conducting its own de novo review and failing to defer to the state
court’s factual findings under 28 U.S.C. § 2254(d)(2) and (e).
32                   ANDREWS V. DAVIS

Supreme Court precedent, Bell v. Cone, 535 U.S. 685 (2002),
Williams v. Taylor, 529 U.S. 362 (2000), and Burger v. Kemp,
483 U.S. 776 (1987). The court provided the following
reasoning. In Burger, the Supreme Court held that counsel
was not deficient even though he declined to present evidence
of the defendant’s neglectful, violent family or his mental and
emotional deficiencies, because: (1) introducing such
background evidence raised a risk that aggravating
information would be introduced, and (2) counsel had
adopted the reasonable strategy of minimizing his client’s
culpability in light of the co-defendant’s dominance. Id. at
672–73 (citing Burger, 483 U.S. at 791–94). The California
Supreme Court determined that Andrews’s counsel had even
more compelling justifications for not introducing
background evidence than Burger’s counsel, given that
Burger endured a worse childhood than Andrews, was a
teenager at the time of the murder, had committed only one
murder, and was not primarily responsible for the decision to
kill. Id. at 673.

    Next, the California Supreme Court turned to Bell v.
Cone, 535 U.S. 685 (2002). In re Andrews, 52 P.3d at 673.
In Bell, counsel provided no penalty phase evidence at all and
waived closing argument. Id. (citing Bell, 535 U.S. at 685).
The Supreme Court concluded that counsel’s strategy was
reasonable, because evidence of defendant’s normal
childhood might have been perceived negatively by the jury,
and because counsel’s decision to waive closing argument
prevented the lead prosecutor from depicting the defendant as
a heartless killer. Id. (citing Bell, 535 U.S. at 699–702). The
California Supreme Court noted that the counsel’s strategy in
Bell was similar to the strategy of Andrews’s counsel: by
providing little background information and giving only a
                        ANDREWS V. DAVIS                             33

brief closing argument, counsel could reduce damaging
rebuttal evidence. Id. at 673–74.

     Finally, the California Supreme Court considered
Williams v. Taylor, 529 U.S. 362 (2000), which held that
counsel rendered ineffective assistance of counsel by failing
to investigate defendant’s nightmarish childhood, borderline
mental retardation, and model behavior in prison. Id. at 674
(citing Williams, 529 U.S. at 395–96). The California
Supreme Court distinguished this case, noting that counsel’s
failure in Williams to investigate was not based on strategy,
as in Andrews’s case, but due to counsel’s erroneous
understanding of the law. Id. The state court also noted that
in Williams, there was no tactical reason to withhold evidence
and there was virtually no risk of damaging rebuttal, as in this
case. Id. at 674–75.

     The California Supreme Court therefore concluded that
then-existing Supreme Court precedent was consistent with
its conclusion that Andrews had not established that “in light
of all the circumstances, the identified acts or omissions of
counsel were outside the wide range of professionally
competent assistance.” Id. at 668 (internal quotation marks
and alterations omitted).9

 9
   The dissent argues that the California Supreme Court erred in relying
on Burger, Bell, and Williams in concluding that Andrews’s counsel were
not deficient. Dissent at 104–106, 110–111. This criticism is meritless,
however, because it is based on de novo review rather than the deference
required under AEDPA. For example, in concluding that “[t]he California
Supreme Court’s reliance on Burger is unreasonable,” Dissent at 104–105,
the dissent takes a de novo approach that is not permitted under AEDPA,
where a court must consider whether “fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme] Court’s
precedents,” Richter, 562 U.S. at 102. Similarly, instead of determining
whether any fairminded jurist could conclude there is a “principled
34                      ANDREWS V. DAVIS

                                   4

    The California Supreme Court next turned to the
prejudice prong. As explained in greater detail below, the
California Supreme Court determined, based on its review of
the evidence adduced at the reference hearing and the rebuttal
evidence that could have been introduced during the penalty
phase, that “it is not ‘reasonabl[y] proba[ble]’ petitioner was
prejudiced by counsel’s rejection of a defense premised on
evidence of petitioner’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 (quoting Strickland, 466 U.S.
at 694).

    “Having considered the record of the hearing, the
referee’s factual findings, and petitioner’s original trial,” the
California Supreme Court concluded that Andrews “received
constitutionally adequate representation, and any inadequacy
did not result in prejudice.” Id. at 659. Accordingly, the
California Supreme Court denied Andrews’s state habeas
petition. Id. at 676.




distinction,” Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir. 2010) (en
banc), between this case and Williams, the dissent misrepresents the
California Supreme Court as holding that “a virtually nonexistent penalty
phase investigation is reasonable so long as it is not based upon a
misunderstanding of the law,” and then rejects this absurd reading of
Williams. Dissent at 110–111. “[I]t is not apparent how the [dissent’s]
analysis would have been any different without AEDPA.” Richter,
562 U.S. at 101 (faulting the Ninth Circuit’s de novo approach to habeas
review).
                     ANDREWS V. DAVIS                         35

                               5

    After the California Supreme Court rejected Andrews’s
claims, 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
Andrews’s claim that his counsel were ineffective at the
penalty phase of his trial for failing to investigate and present
additional mitigating evidence. In reaching this conclusion,
the district court did not apply the standard mandated by the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Instead of determining whether the California Supreme
Court’s rejection of this ineffective assistance of counsel
claim was “contrary to, or involved an unreasonable
application of” Strickland, as required by 28 U.S.C.
§ 2254(d)(1), the district court reviewed the evidence
produced by the referee on this issue de novo and concluded
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.” Cf. Richter,
562 U.S. at 101 (criticizing the Ninth Circuit’s review of a
state court opinion under § 2254(d)(1) because it failed to
give the deference due under AEDPA). The court granted
Andrews’s petition on this 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
denials of Claim 25 and several uncertified claims. The state
36                       ANDREWS V. DAVIS

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 for 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

    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,”
§ 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).10


  10
    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).
                     ANDREWS V. DAVIS                         37

    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, 563 U.S.
170, 182 (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 Supreme Court precedent.

    A Supreme Court decision 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
distinction between the case before it and Supreme Court
caselaw, the law is not clearly established for the state-court
case.” Murdoch, 609 F.3d at 991. “[I]f a habeas court must
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
38                   ANDREWS V. DAVIS

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,
529 U.S. at 405. 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,” Richter,
562 U.S. 86 at 101 (emphasis added). “Under § 2254(d), a
habeas court must determine what arguments or theories
supported” the state court’s decision, id. at 102, and 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)).

    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, 563 U.S. at 181 (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
                     ANDREWS V. DAVIS                        39

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, 563 U.S. at 189. 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.

    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,
563 U.S. at 196 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,
563 U.S. at 196 & 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
40                   ANDREWS V. DAVIS

federal court’s review under § 2254(d)(1) of a habeas
petitioner’s claim that a state court unreasonably applied
Strickland. Id. at 202. 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 may guide a federal court’s AEDPA analysis
when the facts of the Supreme Court case (including the
prevailing professional norms at the time of the defendant’s
trial) are analogous to the case before the court.

    Under Strickland, deficient performance is performance
that falls “below an objective standard of reasonableness” and
is thus outside of “the range of competence demanded of
attorneys in criminal cases.” 466 U.S. at 687–88 (internal
quotation marks omitted). The objective measure of
counsel’s performance is “reasonableness under prevailing
professional norms.” Id. at 688. Therefore, counsel’s
performance is deficient only if it falls below the standard of
then prevailing professional norms at the time of the trial. Id.
In Pinholster, for instance, the Supreme Court rejected the
dissent’s argument that counsel’s performance was defective
where the dissent provided no evidence that counsel’s chosen
mitigation strategy was “inconsistent with the standard of
professional competence in capital cases that prevailed in Los
Angeles in 1984.” 563 U.S. at 196; see also Bobby v. Van
Hook, 558 U.S. 4, 8 (2009) (per curiam) (holding that the
Sixth Circuit had improperly relied on the much more
detailed 2003 ABA Guidelines “announced 18 years after
Van Hook went to trial”). Therefore, a court may not
                     ANDREWS V. DAVIS                        41

evaluate whether counsel’s performance fell below prevailing
professional conduct at the time of a defendant’s trial by
reference to Supreme Court opinions that rely on later-
developed professional norms.

    The Supreme Court has also 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. Illustrative
Supreme Court precedent indicates that 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, 563 U.S. at 197–202;
(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, 563 U.S. at
197–202, 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
42                   ANDREWS V. DAVIS

sentencing and evidence that a competent attorney would
have introduced. See Wiggins, 539 U.S. at 534–35. A court
may assume that a competent attorney would have considered
presenting all of the evidence adduced in post-conviction
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, evidence that a
defendant 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).
                     ANDREWS V. DAVIS                        43

    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.
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 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 the evidence’s impact on the jury might
be aggravating rather than mitigating. See Pinholster,
563 U.S. at 201–02. 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, 483 U.S. at
44                   ANDREWS V. DAVIS

794 (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
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,
563 U.S. at 201 (noting that evidence of the defendant’s
family background, his substance abuse, and his 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, 535 U.S. at 701–02.

                              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 the government could have
adduced had the mitigating evidence been introduced. See
Williams, 529 U.S. at 397–98; Pinholster, 563 U.S. at
197–202. 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 $100, the Supreme
                     ANDREWS V. DAVIS                       45

Court agreed with the state court that the aggravating
evidence was “simply overwhelming” and determined that
counsel’s failure to introduce certain mitigating evidence was
not prejudicial. Belmontes, 558 U.S. at 15–16, 26–27
(internal quotation marks omitted). In 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. at 12–13. 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
46                   ANDREWS V. DAVIS

testimony diagnosing a defendant with bipolar mood disorder
and seizure disorders, because such evidence would invite
rebuttal by a state expert, who could reject the diagnosis of
bipolar disorder and offer a different diagnosis of antisocial
personality disorder. Pinholster, 563 U.S. at 177, 201.

                              3

    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).
                    ANDREWS V. DAVIS                       47

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

Accordingly, the Court concluded that any failure of counsel
to present additional mitigating evidence was not prejudicial.
Id. at 27.

    These Supreme Court opinions illustrate 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. See Strickland, 466 U.S. at 697 (“[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.”). 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, 563 U.S. at 182–83.

    In considering whether any deficiency by Andrews’s
counsel was prejudicial, the California Supreme Court
correctly followed Strickland in asking whether, even if
counsel were deficient, Andrews’s defense was not
prejudiced by any such deficiency because a different result
was not reasonably probable. See In re Andrews, 52 P.3d at
671 (quoting Strickland, 466 U.S. at 694). The California
                         ANDREWS V. DAVIS                              49

Supreme Court then reasonably carried out the three steps
indicated by Supreme Court opinions for evaluating prejudice
under Strickland at the penalty phase.11

                                    1

    The court first considered the totality of the mitigating
evidence presented at trial, as well as what mitigating
evidence 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,12 id.

 11
    Andrews argues that the California Supreme Court failed to apply the
correct legal standard for determining whether counsel provided deficient
performance at the penalty phase. Specifically, Andrews argues that the
California Supreme Court failed to follow Tennard v. Dretke and Smith v.
Texas, which hold that evidence can be mitigating even if it is not
“uniquely severe” or does not have a “nexus” to the crime. 542 U.S. 274,
287 (2004); 543 U.S. 37, 44–45 (2004). This argument misconstrues the
California Supreme Court opinion. In determining that counsel could
have made a strategic decision not to present tangential evidence that
could cut both ways, the court expressly considered the purportedly
mitigating evidence. On its face, such an approach is not equivalent to
holding that certain evidence is per se not mitigating and declining to
consider it. Cf. 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.”).
 12
    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 subjected to beatings, brutality, inadequate conditions and
50                        ANDREWS V. DAVIS

at 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, 563 U.S. at 201–02.
The court 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


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
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                              51

time he was released or escaped from prison.” In re Andrews,
52 P.3d at 670.

    In addition, the California Supreme 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 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.”13 Id.; cf. Pinholster, 563 U.S. at
201–02.

    The dissent claims that the California Supreme Court was
unreasonable in concluding that the Mt. Meigs evidence
could have constituted a double-edged sword because “[t]he
jury already knew from Andrews’s heinous crimes of
conviction and from the stipulated prior convictions that
Andrews was antisocial and ‘had become desensitized and
inured to violence and disrespect for the law.’” Dissent at

    13
       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, 563 U.S. at 201–02.
52                   ANDREWS V. DAVIS

119–120. However, the dissent’s conclusion is factually
incorrect. Because the stipulation presented to the jury did
not describe the facts of each of the offenses underlying
Andrews’s prior convictions, the jury did not hear that
Andrews held a woman hostage with a gun to her head when
robbing a laundry business or that the taxi driver in the 1968
robbery heard Andrews say “[l]et’s shoot him” and then fired
at least two shots at him. See supra at 21–22. Accordingly,
the California Supreme Court did not err in concluding that
evidence of prison conditions was double-edged.

                               2

     Consistent with Supreme Court precedent, the California
Supreme Court not only assessed the weight of the mitigating
evidence and its likely impact on a jury but also evaluated 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. Turning to the circumstances of Andrews’s crimes,
the California Supreme Court stated that the murders showed
a “callous disregard for human life.” In re 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
                        ANDREWS V. DAVIS                              53

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

    Finally, the California Supreme 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




  14
     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.
54                       ANDREWS V. DAVIS

damage, but had antisocial personality traits.15 Id.; cf.
Pinholster, 563 U.S. at 173, 201. 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, 563 U.S. at 201–02.
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.

                                    3

    After evaluating the mitigating and aggravating evidence,
the California Supreme 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


  15
     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.
                        ANDREWS V. DAVIS                             55

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.” In re Andrews,
52 P.3d at 671. Indeed, the California Supreme Court
concluded that “[w]ith respect to the question of prejudice”
the record “contains no indication the jury was inclined to
sentence petitioner to life imprisonment and might have been
persuaded by additional or alternate mitigation evidence.” Id.
at 675–76. Accordingly, the California Supreme Court
reasonably concluded that even if counsel were deficient,
Andrews’s defense was not prejudiced by any such
deficiency. Id. Because this is not an objectively
unreasonable application of Strickland, the district court erred
in granting Andrews relief on this issue.

   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.16 We disagree.

    In Williams, the police found a man dead in his residence.
529 U.S. at 367. There was no indication of a struggle so
local officials concluded that the cause of death was alcohol
poisoning and closed the case. Id. The defendant, who had
been arrested for an unrelated offense, wrote a letter to the
police confessing he had killed a man by striking him in the
chest and back after an argument, thus “alerting police to a


 16
    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.
56                        ANDREWS V. DAVIS

crime they otherwise would never have discovered,
expressing remorse for his actions, and cooperating with the
police after that.” Id. at 367–68 & n.1, 398.17

    The defendant’s counsel began to prepare for the penalty
phase only a week before trial, and even then counsel did not
review defendant’s juvenile and social services records
because counsel incorrectly believed that state law barred
access to these records. Id. at 373, 395. Counsel thus failed
to discover documents that “graphically describe[d]
[defendant’s] nightmarish childhood.” Id. at 395. The
evidence showed that defendant’s “parents had been
imprisoned for the criminal neglect of [defendant] and his
siblings, that [defendant] had been severely and repeatedly
beaten by his father, that he had been committed to the
custody of the social services bureau for two years during his
parents’ incarceration (including one stint in an abusive foster
home), and then, after his parents were released from prison,
had been returned to his parents’ custody.” Id. The records

  17
      The dissent relies on Justice Rehnquist’s concurring and dissenting
opinion in Williams, which described additional aggravating factors
beyond the crime itself. See Dissent at 114–115 (stating that the jury
heard evidence that “Williams savagely beat an elderly woman, stole two
cars, set fire to a home, stabbed a man during a robbery, set fire to the city
jail, and confessed to having strong urges to choke other inmates and to
break a fellow prisoner’s jaw”) (citing Williams, 529 U.S. at 418
(Rehnquist, C.J., concurring in part and dissenting in part)). But under
AEDPA, neither concurring nor dissenting opinions, nor circuit court
decisions (particularly one reversed by the Supreme Court, see Dissent at
114–115), constitute clearly established Supreme Court precedent. See
Williams, 529 U.S. at 412 (stating that only the Supreme Court’s
“holdings, as opposed to the dicta” constitute clearly established Federal
law); Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (“As we have repeatedly
emphasized, however, circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court.’” (quoting
28 U.S.C. § 2254(d)(1))).
                      ANDREWS V. DAVIS                           57

revealed that defendant’s home had urine and feces on the
floor; defendant’s parents “were so intoxicated, they could
not find any clothes for the children, nor were they able to put
the clothes on them”; “[t]he children were all dirty and none
of them had on under-pants”; and in one instance “[t]he
children had to be put in Winslow Hospital, as four of them,
by that time, were definitely under the influence of whiskey.”
Id. at 395 n.19.

    Nor did counsel introduce other mitigating evidence
readily apparent from the record, such as the fact that
defendant was “borderline mentally retarded.” Id. at 396.
Counsel also failed to “seek prison records recording
[defendant’s] commendations for helping to crack a prison
drug ring and for returning a guard’s missing wallet, or the
testimony of prison officials who described [defendant] as
among the inmates ‘least likely to act in a violent, dangerous
or provocative way.’” Id. In addition, counsel failed to
return the phone call of a character witness who had offered
to testify “that he had visited [defendant] frequently when
[defendant] was incarcerated as part of a prison ministry
program, that [defendant] ‘seemed to thrive in a more
regimented and structured environment,’ and that [defendant]
was proud of the carpentry degree he earned while in prison.”
Id.

     Finally, at sentencing,“[t]he weight of defense counsel’s
closing . . . was devoted to explaining that it was difficult to
find a reason why the jury should spare [defendant’s] life.”
Id. at 369; see also id. at 369 n.2 (quoting defense counsel as
telling the jury “‘I will admit too that it is very difficult to ask
you to show mercy to a man who maybe has not shown much
mercy himself. I doubt very seriously that he thought much
about mercy when he was in [the victim’s] bedroom that
58                     ANDREWS V. DAVIS

night with him. . . . Admittedly it is very difficult to get us
and ask that you give this man mercy when he has shown so
little of it himself.’”). The Supreme Court held that the state
court applied the wrong legal standard in determining
prejudice because it required “a separate inquiry into
fundamental fairness,” id. at 393, even when the petitioner
showed there was a reasonable probability of a different
outcome, id. at 393–95. Therefore, the Court applied
Strickland de novo to these facts, id. at 397–98; see also
Pinholster, 563 U.S. at 202.

    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 regarding his exemplary conduct in prison,
529 U.S. at 398, but no comparable evidence of good
character was present in Andrews’s case.18 The defendant’s
“nightmarish childhood” in Williams, 529 U.S. at 395, 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. Although
the prosecutor in Williams could have introduced rebuttal
evidence that defendant had been “thrice committed to the
juvenile system—for aiding and abetting larceny when he
was 11 years old, for pulling a false fire alarm when he was


  18
     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.
                         ANDREWS V. DAVIS                              59

12, and for breaking and entering when he was 15,” 529 U.S.
at 396, such evidence has much less weight compared to
Andrews’s robbery-murder, hostage taking, and history of
escapes from prison, In re Andrews, 52 P.3d at 675. Finally,
the circumstances of the crime in Williams were less brutal
than Andrews’s rape and triple murder. Id.19 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, 563 U.S. at 202–03.

    Andrews also argues that the California Supreme 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 its prejudice analysis
careful consideration, because Porter considered prejudice
under AEDPA, and therefore provides direction for
determining what constitutes an unreasonable application of
the prejudice prong of Strickland under AEDPA.
Nevertheless, we conclude that Porter does not help Andrews
here.


 19
    The dissent fails to engage with these distinctions and the evidence at
issue. Instead, the dissent conducts a de novo review, and concludes that
the aggravating evidence admitted at trial and the evidence that could have
been offered in rebuttal against Andrews was “no greater than the
aggravating evidence in Williams.” Dissent at 115. The dissent
misunderstands our role. We must determine whether the California
Supreme Court’s application of Williams was objectively unreasonable
under 28 U.S.C. § 2254(d)(1), not whether we would have reached a
different result under de novo review. “In order for a state court’s
decision to be an unreasonable application of [the Supreme] Court’s case
law, the ruling must be objectively unreasonable, not merely wrong; even
clear error will not suffice.” Virginia v. LeBlanc, No. 16-1177, 2017 WL
2507375, at *3 (U.S. June 12, 2017) (internal quotation marks omitted).
60                  ANDREWS V. DAVIS

     In Porter, the defendant was convicted of two counts of
first-degree murder for shooting his former girlfriend and her
boyfriend. 558 U.S. at 31. The evidence suggested that “this
was a crime of passion” and “that [defendant] was drinking
heavily just hours before the murders.” Id. at 38. The
defendant was convicted of both murders, and the jury
recommended the death sentence. Id. at 32. The state
supreme court affirmed, but struck the “heinous, atrocious, or
cruel aggravating factor,” because the evidence was
“consistent with the hypothesis that [defendant’s] was a crime
of passion, not a crime that was meant to be deliberately and
extraordinarily painful.” Id. at 33.

    The defendant represented himself during the guilt phase,
id. at 32, and his counsel “had only one short meeting with
[defendant] regarding the penalty phase,” id. at 39. As the
Supreme Court explained, “counsel did not even take the first
step of interviewing witnesses or requesting records.” Id. As
a result, the defendant’s counsel failed to present evidence
about “(1) [defendant’s] heroic military service in two of the
most critical—and horrific—battles of the Korean War,” id.
at 41, which earned him two Purple Hearts, the Combat
Infantryman Badge, and other decorations, id. at 35; “(2) his
struggles to regain normality upon his return from war,” id.
at 41, which led to excessive drinking, id. at 36; “(3) his
childhood history of physical abuse,” id. at 41, during which
he was subjected to routine beatings and regularly watched
his father beating his mother, id. at 33; and “(4) his brain
abnormality, difficulty reading and writing, and limited
schooling,” id. at 41.

   The Supreme Court determined that the state court
unreasonably applied Strickland in holding that the defendant
was not prejudiced by counsel’s failure to introduce this
                     ANDREWS V. DAVIS                        61

mitigating evidence. The Court held that the mitigating
evidence was strong, while the weight of the evidence in
aggravation was less substantial. Id. The Court also held that
the state court was unreasonable in discounting the
defendant’s childhood abuse and military service. Id. at 43.
It was “unreasonable to conclude that [defendant’s] military
service would be reduced to inconsequential proportions,
simply because the jury would also have learned that
[defendant] went AWOL on more than one occasion.” Id.
(internal citation and quotation marks omitted). The Court
reasoned that “[o]ur Nation has a long tradition of according
leniency to veterans in recognition of their service, especially
for those who fought on the front lines as [defendant] did,”
and that the “relevance of [defendant’s] extensive combat
experience is not only that he served honorably under
extreme hardship and gruesome conditions, but also that the
jury might find mitigating the intense stress and mental and
emotional toll that combat took on [defendant].” Id. 43–44.
“To conclude otherwise,” the Court opined, “reflects a failure
to engage with what [defendant] actually went through in
Korea.” Id. at 44. Further, the Court held that the state court
was “unreasonable to discount to irrelevance the evidence of
[defendant’s] abusive childhood, especially when that kind of
history may have particular salience for a jury evaluating
[defendant’s] behavior in his relationship with [his former
girlfriend].” Id. at 43.

    The Court’s reasoning in Porter does not lead to the
conclusion that the California Supreme Court unreasonably
applied the prejudice prong of Strickland here. Unlike the
state court in Porter, the California Supreme Court
considered all mitigation evidence in the record and did not
fail to consider or “discount to irrelevance” significant
evidence. See id. The most important mitigation evidence in
62                       ANDREWS V. DAVIS

Porter, that the defendant served in “the most critical—and
horrific—battles of the Korean War,” see id. at 41, is far
stronger than the mitigation evidence at issue here.
Moreover, Andrews did not have an abusive home life, and
there is no evidence that his murders in this case were crimes
of passion for which childhood abuse would have “particular
salience for a jury” in evaluating his behavior. See id. at 43.

     Further, the aggravating circumstances in Porter were
different and less weighty than those in this case. Indeed,
Porter noted that the state court had stricken the “heinous,
atrocious, or cruel” aggravating factor because the evidence
in the record was “consistent with the hypothesis that Porter’s
was a crime of passion, not a crime that was meant to be
deliberately and extraordinarily painful,” id. at 33, while here
the California Supreme Court found that Andrews’s brutal
rape and strangulation of Brandon, and the shooting and
strangling deaths of the other victims, evidenced a “callous
disregard for human life” and were accomplished with
“considerable violence and evident sangfroid,” In re
Andrews, 52 P.3d at 671.20 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.21

  20
     The dissent claims that the prosecutor presented “a strong case in
aggravation” in Porter, and therefore the conclusion in Porter must apply
in this case. Dissent at 118. But unlike the case before us, Porter held
that the sentencing judge had misjudged the weight of the aggravating
evidence, and “the weight of evidence in aggravation is not as substantial
as the sentencing judge thought.” Porter, 558 U.S. at 41. The aggravating
evidence in this case cannot similarly be minimized.
 21
   Andrews also urges us to apply our 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
                         ANDREWS V. DAVIS                               63

    Woodford v. Visciotti, a Supreme Court case that provides
direction for determining under AEDPA what constitutes an
unreasonable application of Strickland, is more closely on
point.22 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
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.


present mitigating evidence, including evidence of his rape in prison. Doe
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 428, 446 n.31. Nor is Doe clearly established law as determined
by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
 22
    Although Visciotti was decided after the California Supreme Court’s
decision in this case, we give it careful consideration because it addresses
the AEDPA question whether a state court’s adjudication of an ineffective
assistance of counsel claim was an unreasonable application of Strickland.
See supra at 39–40; see also Dissent at 116–117 & n.9 (acknowledging
that Supreme Court opinions analyzing AEDPA are relevant to a circuit
court’s AEDPA analysis, regardless whether those opinions were decided
before or after the last reasoned opinion of the state court). The dissent
highlights that Visciotti was “decided after the California Supreme Court’s
decision in this case,” Dissent at 118, but given the dissent’s
acknowledgment that our consideration of a Supreme Court opinion
analyzing AEDPA is proper, the meaning of this emphasis is unclear.
64                      ANDREWS V. DAVIS

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
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 27.23


 23
    The fact that our decision in this case was originally unanimous, see
Andrews v. Davis, 798 F.3d 759 (9th Cir. 2015), and there have been no
relevant factual or legal developments since that time, underscores our
conclusion that fairminded jurists could hold that the state court’s
determination was not objectively unreasonable.
                        ANDREWS V. DAVIS                              65

    The dissent purports to recognize that “our deference to
state court decisions is at its zenith on federal habeas review,”
Dissent at 96, but fails to apply this standard. Here, the
California Supreme Court determined that there was not a
reasonable probability that the outcome would have been
different had the evidence adduced at the reference hearing
(along with the rebuttal evidence) been presented to the jury.
In re Andrews, 52 P.3d at 671, 675–76. The dissent does
not—and cannot—explain why the court’s conclusion is an
objectively unreasonable application of then-existing
Supreme Court precedent. The dissent points to Williams,
Dissent at 114–116, but makes no effort to explain the flaw
in the California Supreme Court’s “principled distinction” of
this case. Murdoch, 609 F.3d at 991; see supra at 58–59.
Nor does the dissent meaningfully engage with the facts of
Porter or dispute the numerous distinctions addressed above.
See supra at 59–62; Dissent at 116–118.24

    The dissent fails to address the pertinent question, which
“‘is not whether a federal court believes the state court’s
determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable—a
substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,


   24
      The dissent’s reliance on Wiggins and Rompilla to support its
Strickland analysis, see Dissent at 112–113, 117, is mistaken, because
these cases were decided after the California Supreme Court ruled. While
we may always consider the Supreme Court’s reasoning in applying
AEDPA, both Wiggins and Rompilla examined the prejudice prong of
Strickland de novo. Wiggins, 539 U.S. at 534; Rompilla, 545 U.S. at 390.
Therefore, these cases do not provide any guidance on the issue before us,
whether a state court’s determination that counsel’s deficiency was not
prejudicial was an unreasonable application of clearly established
Supreme Court precedent.
66                   ANDREWS V. DAVIS

550 U.S. 465, 473 (2007)). Instead, the dissent concludes
that the California Supreme Court unreasonably applied
Strickland based on the dissent’s own view that “at least one
juror” would be inclined to “spare Andrews’s life” if
evidence of the abuse at Mt. Meigs had been presented.
Dissent at 92; see id. at 92, 111, 120. This approach would
be wrong even under de novo review. The dissent’s limited
focus on a single piece of evidence fails to take into account
the totality of the mitigating and aggravating evidence in the
record. See Strickland, 466 U.S. at 695. In this context, the
dissent’s supposition that one juror would have been moved
amounts to little more than a mere possibility of a different
outcome, where the Supreme Court has made clear that “[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).

    The dissent’s errors are even more glaring on AEDPA
review. The Court has told us frequently and emphatically
that “[i]t is not enough that a federal habeas court, in its
independent review of the legal question, is left with a firm
conviction that the state court was erroneous.” Lockyer,
538 U.S. at 75 (internal quotation marks and citations
omitted). Rather, the state court’s decision “must be
objectively unreasonable,” id., considering “the totality of the
evidence before the judge or jury,” Strickland, 466 U.S. at
695. Here, rather than apply AEDPA deference, the dissent
steps into the shoes of the dissenting justice of the California
Supreme Court in this case, see Dissent at 98, 100–104,
107–108, 116, and applies Strickland de novo. Indeed, the
dissent even makes its own factual findings. See Dissent at
107, 115 (discounting the substantial rebuttal evidence that
would have been presented at sentencing on the ground that
the prosecutor from Andrews’s trial would not have
                        ANDREWS V. DAVIS                              67

introduced rebuttal witnesses had the defense presented
evidence of Andrews’s prison conditions, a factual conclusion
contrary to the determinations of the referee and the
California Supreme Court, see In re Andrews, 52 P.3d at
666). Such review is erroneous under AEDPA. In taking this
de novo approach, the dissent has failed to grapple with “the
only question that matters under § 2254(d)(1),” Lockyer,
538 U.S. at 71, whether the state court’s application of the
clearly established Supreme Court precedent was objectively
unreasonable.

   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.

                                   D

    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 697.25 Suffice it to
say, the dissent fails to conduct an AEDPA analysis of the
California Supreme Court’s determination that Andrews’s
attorney was not deficient under Strickland. Instead, as we
have previously noted, supra at 25 n.3, 26–27 n.4, 28 n.5,
28–29 n.6, 30 n.7, 30–31 n.8, 33–34 n.9, the dissent engages
in de novo review of both the facts and the law at issue, see


  25
     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.
68                   ANDREWS V. DAVIS

Dissent at 96–111, and relies on cases that were not clearly
established at the time of the California Supreme Court’s
ruling, see, e.g., Dissent at 100, 106 (relying on the deficiency
analysis of Porter, which was decided years after the
California Supreme Court’s opinion in this case and reviewed
the issue of deficiency de novo). And in reaching its de novo
conclusion that “any competent attorney would have
presented” the Mt. Meigs evidence, Dissent at 109, the
dissent ignores “the doubly deferential judicial review that
applies to a Strickland claim evaluated under the § 2254(d)(1)
standard,” Mirzayance, 556 U.S. at 123. Accordingly, the
dissent fails to raise any serious questions regarding the
California Supreme Court’s analysis of Strickland’s
deficiency prong.

                               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.

    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. Department of Corrections, the California
Department of Corrections and Rehabilitation (CDCR) has
                        ANDREWS V. DAVIS                             69

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.26
Because no new protocol was in place at the time the district
court ruled, the claim was unripe, and the district court erred
in entertaining it. See Payton v. Cullen, 658 F.3d 890, 893




  26
    After losing its appeal, CDCR promulgated a new procedure, which
took effect on August 29, 2010. Sims, 216 Cal. App. 4th 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. The CDCR proposed a new single-drug lethal injection protocol
in November 2015. Pursuant to California’s Administrative Procedure
Act (APA), the CDCR held a mandatory public comment period,
responded to each substantive comment, made any necessary changes, and
resubmitted the proposed protocol for additional public comment until
November 7, 2016. See Cal. Gov. Code §§ 11346–48. On December 28,
2016, the California Office of Administrative Law (OAL) rejected the
proposed lethal injunction protocol and stated that revisions may be
resubmitted within 120 days. In 2016, California voters approved the
Death Penalty Reform and Savings Act of 2016 (Proposition 66), which
amended state statute to provide that the state APA does not apply to
lethal injection protocols. The California Supreme Court stayed
“implementation of all provisions of Proposition 66” pending the
resolution of litigation challenging its implementation. Briggs v. Brown,
387 P.3d 1254, 1255 (Cal. 2017).
70                        ANDREWS V. DAVIS

(9th Cir. 2011).27 Andrews may renew his challenge when
California has finally approved its protocol. Id.

                                     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 trial 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).28



 27
    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.
 28
      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
                         ANDREWS V. DAVIS                            71

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,
801–02.29 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).
  29
     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.
72                      ANDREWS V. DAVIS

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).30 As


 30
    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
                        ANDREWS V. DAVIS                             73

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 state cannot constitutionally impose the death penalty
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 . . . .”). Habeas petitioners must 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,“[t]his
threshold question should be decided without ‘full
consideration of the factual or legal bases adduced in support
of the claims.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017)
(quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). As
the Supreme Court directed in Miller-El, rather than
“[d]eciding the substance of an appeal,” 537 U.S. at 342, we


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

“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.
While the Court has not specified “what procedures may be
appropriate in every case,” any procedures “employed at the
COA stage should be consonant with the limited nature of the
inquiry.” Buck, 137 S. Ct. at 774.

                               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. Jones
v. Chappell, 31 F. Supp. 3d 1050, 1053, 1061–62, 1069 (C.D.
Cal. 2014), rev’d sub nom. Jones v. Davis, 806 F.3d 538 (9th
Cir. 2015). We 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
                     ANDREWS V. DAVIS                        75

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
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)
76                   ANDREWS V. DAVIS

(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
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,”
                     ANDREWS V. DAVIS                        77

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 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
78                   ANDREWS V. DAVIS

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
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 that Andrews is raising a systemic challenge
to California’s administration of its death penalty system,
which would be a new and unexhausted claim. Rather,
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.
                     ANDREWS V. DAVIS                         79

    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 in the
AEDPA context, no clearly established Supreme Court
precedent holds that 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.

    We reached a similar determination in Jones v. Davis,
where we held that neither Furman nor Gregg established the
rule that the Eighth Amendment barred delays in resolving
post-conviction proceedings. See 806 F.3d at 551. In light of
the Supreme Court’s rule that “federal courts may not
consider novel constitutional theories on habeas review,” id.
at 541 (citing Teague v. Lane, 489 U.S. 288 (1989)), we
concluded that neither a Lackey claim nor a systemic
challenge to California’s death penalty system was
cognizable in federal habeas proceedings. Id. at 548, 552.
Because such claims are barred from habeas consideration
80                   ANDREWS V. DAVIS

under Teague, see id. at 548, 552, they are not clearly
established rules under 28 U.S.C. § 2254(d)(1). Schardt v.
Payne, 414 F.3d 1025, 1037 (9th Cir. 2005). 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. 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,
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
                     ANDREWS V. DAVIS                       81

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
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.
82                  ANDREWS V. DAVIS

     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,
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
                     ANDREWS V. DAVIS                        83

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
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
84                   ANDREWS V. DAVIS

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 to show
only that 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
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
                     ANDREWS V. DAVIS                       85

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
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.
86                   ANDREWS V. DAVIS

    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.

     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 V. DAVIS                             87

    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 1981.31
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


  31
      The Los Angeles Police Department Homicide Manual states in
pertinent part:

        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.
88                  ANDREWS V. DAVIS

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 Maddox, 366 F.3d at
999–1000 (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,
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 Dist. 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 V. DAVIS                        89

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
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
90                   ANDREWS V. DAVIS

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
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.
                        ANDREWS V. DAVIS                             91

    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.32 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
limited to the record that was before the state court that
adjudicated the claim on the merits.” 563 U.S. at 181. “[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, 563 U.S. at 203 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



 32
    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.
92                  ANDREWS V. DAVIS

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.



MURGUIA, Circuit Judge, dissenting in part:

   I respectfully dissent. I would affirm the district court’s
order granting Andrews relief due to ineffective assistance of
counsel at the penalty phase of his trial.

    Andrews was convicted of three heinous and appalling
murders. His prior crimes were violent and antisocial. But
due to defense counsel’s constitutionally inadequate penalty
phase investigation, the jurors who sentenced Andrews to
death never knew that he was subjected for two years as a
young teenager to brutal, inhumane, and degrading abuse by
his state custodians at Mt. Meigs, a segregated reform school
for “Negro children” in Alabama. Had counsel presented this
readily available mitigating evidence, there is a reasonable
probability that at least one juror would have been moved to
exercise mercy and spare Andrews’s life. Yet the California
Supreme Court denied relief in a 5-to-2 decision, concluding
that counsel’s performance was neither deficient nor
prejudicial. See In re Andrews, 52 P.3d 656 (Cal. 2002).
                     ANDREWS V. DAVIS                       93

    Fundamentally, it is unconscionable to sentence a man to
death absent consideration of mitigating evidence of this
magnitude, particularly where counsel failed to present any
meaningful mitigation evidence. Our “ultimate focus of
inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged.” Strickland v. Washington,
466 U.S. 668, 696 (1984). Under the standard of review
mandated by the Antiterrorism and Effective Death Penalty
Act (AEDPA), the “pivotal question is whether the state
court’s application of the Strickland standard was
unreasonable.” Harrington v. Richter, 562 U.S. 86, 101
(2011). The California Supreme Court’s determination that
counsel’s performance was neither deficient nor prejudicial
is not just wrong, it is unreasonable under the clearly
established law of Strickland and its progeny. Thus, even
under the deferential standard of the AEDPA, conditional
sentencing relief is warranted.

                               I

    Andrews was sent to the Alabama Industrial School for
Negro Children, later known as Mt. Meigs, in the mid-1960s,
after stealing a car. He had no prior history of violent crime.
He entered the school when he was 14. He left when he was
16.

    The California judge who conducted the state court
evidentiary hearing described Mt. Meigs as a “segregated
brutal institution near Montgomery, Alabama.” The state
court hearing judge found that the conditions at Mt. Meigs
were horrific, and that Andrews was personally subjected to
“beatings, brutality, inadequate conditions and sexual
predators.” Due to “his small stature and passive nature,”
Andrews was “the target for older boys’ depredations.” The
94                   ANDREWS V. DAVIS

California Supreme Court itself acknowledged that Andrews
personally endured “appalling” conditions at Mt. Meigs. See
Andrews, 52 P.3d. at 660.

     At the state court evidentiary hearing ordered by the
California Supreme Court, several outside observers
corroborated the accounts of abuse at Mt. Meigs. A United
States federal judge testified that Mt. Meigs, during the time
Andrews was there, was a “penal colony” that represented the
“absolute denial of basic and fundamental human rights to
[African-American] children.” A former state probation
officer described Mt. Meigs as a “slave camp” for children,
run by “illiterate overseers” who forced children to work in
the fields harvesting vegetables and picking cotton. The
children were “beaten all the time,” sometimes with
broomsticks, mop handles, and fan belts, and often severely
for minor infractions. Violence was pervasive and sexual
assaults were common. The state probation officer testified
that children committed to Mt. Meigs in the 1960s had no
chance of rehabilitation and “came out much worse” than
when they entered. The probation officer, who testified
before Congress and state legislatures about juvenile justice
facilities around the country, stated that Mt. Meigs was “by
far, by far . . . the worst facility” that he had seen.

     Despite being termed a “school,” Mt. Meigs provided
little to no education, counseling, or vocational programs to
the children in its custody. See Andrews, 52 P.3d at 677
(Kennard, J., dissenting). And in 1971, an Alabama district
court ordered extensive reforms at the institution after finding
that “corporal punishment was promiscuously employed by
the school’s personnel” and agreeing that “[w]hen officials of
a training school have condoned or permitted the frequent and
indiscriminate use of corporal punishment . . . they have
                     ANDREWS V. DAVIS                        95

demonstrated the callous indifference to children’s safety
which provides the basis for Eighth Amendment liability” as
cruel and unusual punishment. Order, Stockton v. Alabama
Industrial School for Negro Children, No. 2834-N (N.D. Ala.
July 23, 1971) (adopting proposed findings of fact and
conclusions of law); see also Crum v. State Training Sch. for
Girls, 413 F.2d 1348, 1349 (5th Cir. 1969) (ordering the
desegregation of Mt. Meigs after finding that it was “inferior
in every way” to similar schools for white children).

    Andrews was not spared. The state court record
chronicles in excruciatingly vivid detail the abuse he
personally suffered. When Andrews failed to pick enough
cotton, left the grass too high in the fields, or made a mistake
in the dining hall, he was whipped with a fan belt or beaten
with a stick. The record indicates that Andrews was beaten
so severely the skin on his thighs would “bust open.” On
other occasions Andrews and other wards at Mt. Meigs were
forced to pull down their pants, lie on the ground on their
stomachs, and place their penises in holes in the earth while
they were whipped. The judge who conducted the state court
evidentiary hearing found the evidence of abuse
“compelling.”

    The jury that sentenced Andrews to death heard none of
this evidence. Yet the California Supreme Court concluded
that counsel was not ineffective and, even if ineffective, there
was no reasonable probability of a different result at
sentencing had the jury heard the Mt. Meigs evidence.

    That decision is fundamentally and objectively
unreasonable. Consideration of a defendant’s life history is
a “constitutionally indispensable part of the process of
inflicting the penalty of death.” See Eddings v. Oklahoma,
96                   ANDREWS V. DAVIS

455 U.S. 104, 112 (1982) (quoting Woodson v. North
Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)). Yet
Andrews’s counsel presented almost no mitigating evidence
at sentencing. The Mt. Meigs evidence is not cumulative to
any other evidence presented during the trial or penalty phase.
The evidence was readily available. Its sympathetic nature is
patently obvious. And without consideration of the degrading
abuse that Andrews endured, the jury that sentenced Andrews
to death could not fairly “gauge his moral culpability.” See
Porter v. McCollum, 558 U.S. 30, 41 (2009) (per curiam).
Confidence in the sentencing outcome has been undermined.
See Strickland, 466 U.S. at 694.

     I recognize that our deference to state court decisions is
at its zenith on federal habeas review. See generally Richter,
562 U.S. at 104. Under the AEDPA, federal courts are barred
from granting habeas relief as to state court convictions if
jurists of reason could debate the correctness of the state
court’s decision. See id. at 101. “A state court must be
granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard
itself.” Id. Federal habeas relief is warranted, however, if
“the state court identifies the correct governing legal
principle” from the decisions of the Supreme Court but
unreasonably applies that principle to the facts of the
petitioner’s case. Williams v. Taylor, 529 U.S. 362, 413
(2000); see 28 U.S.C. § 2254(d)(1). This case meets that
stringent standard for collateral relief on federal habeas
review.

                              II

   Regarding Strickland's first prong, the California Supreme
Court unreasonably applied clearly established federal law in
                          ANDREWS V. DAVIS                                97

concluding that counsel’s performance at the penalty phase
was adequate.

    “[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
When counsel have not fulfilled “their obligation to conduct
a thorough investigation of the defendant’s background,”
their failure to identify and set forth substantial mitigating
evidence at sentencing cannot be justified as a “tactical
decision.” See Williams, 529 U.S. at 396 (citing 1 ABA
Standards for Criminal Justice 4–4.1, commentary, p. 4–55
(2d ed. 1980)); see also Wiggins v. Smith, 539 U.S. 510,
521–22 (2003).

    Andrews’s trial counsel conducted “virtually no penalty
phase investigation” and “did not call a single witness at the
penalty phase.” Andrews, 52 P.3d at 676 (Kennard, J.,
dissenting). Nor did counsel ask their investigators to do any
work on the penalty phase. Indeed, Andrews’s counsel made
no serious effort to discover mitigating evidence.1


 1
   The majority cites trips that Andrews’s counsel made to Alabama and
Florida as evidence that they conducted something other than a cursory
penalty phase investigation. Majority at 25 n.3. Yet by the lawyers’ own
account, their penalty phase investigation consisted of just three activities.
First, the lawyers spent a day in the Mobile courthouse pulling records of
Andrews’s prior convictions. One of the lawyers initially testified that
their trip to Alabama included three days of investigation. He changed
that account after being confronted with evidence that they were in New
Orleans for most of the time, flying to Mobile on a Saturday and returning
to New Orleans on the same day. New Orleans had no relation to the
case; the dates of the trip “coincided” with Mardi Gras celebrations.
Second, only after Andrews’s first trial ended in a hung jury, the lawyers
interviewed Andrews’s mother during a layover in the Pensacola airport,
after they briefly revisited the Mobile courthouse to examine records of
98                       ANDREWS V. DAVIS

    The state court judge who presided over the evidentiary
hearing expressly found that defense counsel could have
uncovered the Mt. Meigs evidence with “simple persistence”
and standard investigative techniques. See Andrews, 52 P.3d
at 680 (Kennard, J., dissenting); see also id. at 681 (noting
that routine legal research of public records would have
revealed lawsuits involving these Alabama institutions). The
California Supreme Court does not dispute that finding. See
Andrews, 52 P.3d at 668.

                                    A

   The California Supreme Court, however, excused
counsel’s failure to discover the Mt. Meigs evidence for a
number of unsupported and unsupportable reasons,
concluding that counsel’s investigation was constitutionally
adequate because: (1) Andrews did not want his family
involved; (2) Andrews did not tell counsel about the appalling
conditions he endured while confined at Mt. Meigs; (3) the
Mt. Meigs evidence could have backfired, for the evidence


Andrews’s prior convictions. The interview did not go into detail about
Andrews’s background, and the lawyers did not inquire about the names
or contact information of relatives or anybody else who knew Andrews
and could speak to his history. Third, the lawyers asserted that they spent
some time in Mobile during one of their two trips unsuccessfully
“look[ing] for evidence of Jesse’s character and good deeds.” The
lawyers, however, did not interview a single person, contact any of
Andrews’s family or friends, or look into Andrews’s institutional history.
Similarly, the two defense investigators testified that their efforts were
limited to the guilt phase, and that neither of Andrews’s attorneys asked
them to do any investigation into Andrews’s background for a possible
penalty phase. The California Supreme Court’s referee characterized
counsel’s “actual efforts” to gather mitigating evidence for the penalty
phase as “limited,” a characterization which in light of this record is
understated, if not overly generous.
                     ANDREWS V. DAVIS                         99

would have come primarily from prisoners; (4) counsel’s
limited investigation was reasonable because counsel had a
reasonable strategy at the penalty phase; and (5) the Mt.
Meigs evidence could have opened the door to more evidence
regarding Andrews’s prior acts of violence. Not one of these
rationales withstands scrutiny or excuses counsel’s failure to
perform a basic investigation into his client’s life history.

    (1) Andrews’s Refusal to Involve his Family.

    The California Supreme Court found counsel’s limited
investigation adequate partly because Andrews refused to
involve his family at the penalty phase. See Andrews, 52 P.3d
at 668. The California Supreme Court reasoned as follows:
“Although the referee found that counsel could have
discovered the mitigating evidence presented at the reference
hearing with ‘simple persistence,’ it is equally clear petitioner
insisted they not involve his family. ‘As we have repeatedly
explained, an attorney representing a defendant at the penalty
phase of a capital case is not required to present potentially
mitigating evidence over the defendant’s objections. . . .’” Id.
(quoting People v. Kirkpatrick, 874 P.2d 248 (Cal. 1994)).

    The California Supreme Court is correct that Andrews did
not want his family involved. And it is also correct that the
“reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or
actions.” See Strickland, 466 U.S. at 691. However,
excusing counsel’s failure to present the Mt. Meigs evidence
based upon Andrews’s refusal to involve his family is
unreasonable on its face for a simple reason: presenting the
Mt. Meigs evidence would not have required any
involvement by Andrews’s family. Instead, as accounted
herein, defense counsel could have introduced the Mt. Meigs
100                  ANDREWS V. DAVIS

evidence by admitting public records and by presenting the
testimony of numerous experts and respected observers.

    The state court’s rationale is also unreasonable in light of
the record before it. Andrews’s trial attorney testified at the
state court evidentiary hearing that Andrews imposed no
limitations on a penalty phase investigation into his
background, apart from not wanting to have his family testify.
The state court hearing judge found no obstacle to calling
witnesses who were not members of Andrews’s family.

    It was therefore unreasonable for the California Supreme
Court to excuse counsel’s failure to present the Mt. Meigs
evidence based upon Andrews’s refusal to involve his family.
See 28 U.S.C. § 2254(d)(2) (stating that federal habeas relief
is warranted if the state court decision was based upon an
unreasonable determination of facts in light of the evidence
presented in the state court proceeding); cf. Porter, 558 U.S.
at 40 (stating that counsel’s decision not to investigate must
reflect a “reasonable professional judgment,” even when the
client is “fatalistic or uncooperative”).

    (2) Andrews’s Failure to Tell Counsel About His Time
        at Mt. Meigs

    The California Supreme Court also faulted Andrews for
not telling trial counsel about the appalling conditions he
endured while at Mt. Meigs. See Andrews, 52 P.3d at 668
(“While counsel were aware petitioner had been incarcerated
in the Alabama prison system, he did not inform them of the
conditions he endured thereby alerting them to the need for
further investigation of possible mitigation.”). However, no
evidence in the record suggests that counsel ever asked
Andrews any questions that would have elicited that history.
                          ANDREWS V. DAVIS                                101

See Andrews, 52 P.3d at 681 (Kennard, J., dissenting) (stating
Andrews “did not withhold that information. His attorneys
never raised the subject.”).2 Nor is there any evidence that
Andrews, “described by one of his trial attorneys as ‘very
cooperative,’ would have refused to discuss his reform school
and prison experiences in Alabama had he been asked about
them.” Id.

    Given those facts, the California Supreme Court was
unreasonable in placing the burden on Andrews to
comprehend and offer mitigation theories at the penalty phase
of his own trial. Under clearly established Supreme Court
law, legal strategy is the duty and domain of learned counsel;
while a defendant “has the ultimate authority to make certain
fundamental decisions regarding the case, as to whether to
plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal,” legal strategy decisions are matters of
professional judgment that fall within counsel’s domain and
are the responsibility of counsel. See Jones v. Barnes,
463 U.S. 745, 751 (1983). And, as accounted above, the most
basic of investigations into Andrews’s life history would have
uncovered the evidence of the abuse he suffered. Cf.


 2
   The majority generally and repeatedly accuses the dissent of engaging
in a de novo review when evaluating whether the California Supreme
Court’s determinations were reasonable. Yet deference does not
eviscerate our duty to examine and evaluate the record to determine the
reasonableness of the state court’s conclusions. Further, in engaging in
that inquiry, it is entirely proper to look to a state court dissenting opinion
that may shed light on whether the state court majority’s determinations
were reasonable or unreasonable in light of the record as a whole. Facts
on federal habeas review are not limited to only the facts stated in the state
supreme court’s majority opinion. Cf. 28 U.S.C. § 2254(d)(2) (stating that
federal habeas relief is warranted if the state court decision “was based on
an unreasonable determination of the facts in light of the evidence
presented”).
102                     ANDREWS V. DAVIS

Williams, 529 U.S. at 395 (finding counsel deficient for
failing to review defendant’s juvenile records that “would
have uncovered extensive records graphically describing
[defendant’s] nightmarish childhood”).

     (3) The Reliance on Prisoners to Present the Mt.
         Meigs Evidence

    The California Supreme Court further concluded it was
reasonable for counsel not to present the Mt. Meigs evidence
because such evidence could have backfired as it “would
come primarily from the testimony of petitioner’s fellow
prisoners, many of whom were hardened criminals with
serious felony records.” See Andrews, 52 P.3d at 668–69.3

    However, the Mt. Meigs evidence was not dependent
upon testimony from prisoners. At Andrews’s state court
evidentiary hearing, “a federal district judge, a priest, a
college dean, a clinical psychologist, a longtime prison
doctor, and the regional director of the Federal Bureau of
Detention, all . . . gave powerfully effective testimony about
the shocking conditions at” Mt. Meigs. Andrews, 52 P.3d at
681 (Kennard, J., dissenting); e.g., id. at 677 (discussing

 3
   The California Supreme Court’s opinion often conflates the evidence
of abuse that Andrews suffered as a youth at Mt. Meigs with other
potential mitigating evidence he could have introduced regarding the
abuse he sustained as an adult in the Alabama prison system. Because
counsel’s failure to investigate and introduce the Mt. Meigs evidence,
standing alone, plainly rendered counsel’s performance deficient, I only
address the Mt. Meigs evidence. However, the dissent in the California
Supreme Court provides an accurate and thorough accounting of the
additional mitigating evidence that counsel could have introduced. See
Andrews, 52 P.3d at 676–80 (Kennard, J., dissenting) (describing
Andrews’s time in Alabama prisons that were later found to violate the
Eighth Amendment’s prohibition against cruel and unusual punishment).
                     ANDREWS V. DAVIS                      103

testimony of federal district court judge Ira Dement, who
referred to Mt. Meigs as a “penal colony for children”).

    In light of the state court record, it therefore was
unreasonable for the California Supreme Court to excuse
counsel’s failure to present the Mt. Meigs evidence on the
basis that such evidence would have primarily depended upon
the testimony of prisoners. See 28 U.S.C. § 2254(d)(2); see
also Wiggins, 539 U.S. at 528 (stating that “partial reliance on
an erroneous factual finding” can show “the unreasonableness
of the state court’s decision.”).

   (4) Counsel’s Penalty Strategy

    The California Supreme Court expressly acknowledged
that the record at the state court evidentiary hearing suggested
that counsel could have conducted a more thorough
investigation into Andrews’s background. See Andrews,
52 P.3d at 669. However, the California Supreme Court
ultimately concluded that counsel’s penalty phase
performance was adequate because counsel had decided upon
a reasonable strategy, one that apparently did not involve or
require any meaningful preliminary investigation into
Andrews’s social history. According to the California
Supreme Court, counsel presented a “reasonable case for
sparing petitioner’s life” by (1) portraying Andrews “as a
follower rather than as violently antisocial”; and (2) arguing
a death sentence was not warranted because “others who had
committed more heinous multiple murders” were not
sentenced to death and Andrews’s co-defendant Sanders had
received a lighter sentence. See id.

   The California Supreme Court’s decision is unreasonable
because neither strategy was supported by the evidence
104                  ANDREWS V. DAVIS

presented at trial. Further, the state court’s decision is
unreasonable because it ignores counsel’s “duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691.

    The evidence as to the crimes of conviction which
rendered Andrews death eligible belied the depiction of
Andrews as a follower, rendering counsel’s penalty phase
pitch to the jury contrary to the record, hollow, and false. See
Andrews, 52 P.3d at 682 (Kennard, J., dissenting) (“[T]hat
was a disastrous strategy, one no reasonably competent
attorney would have used”). Indeed, “the only evidence
before the jury was that petitioner was the instigator rather
than a follower.” Id. The “evidence showed that [Andrews]
was the leader and the perpetrator of the crimes while Sanders
was the follower; thus, jurors were not likely to be troubled
by Sanders’s lighter sentence.” Id.

    Given the evidence at trial, no reasonable argument can
be made that counsel’s strategy to depict Andrews as a
follower was reasonable, particularly when it was
unsupported by a basic investigation into Andrews’s
background to determine what other mitigating evidence was
available. See Bobby v. Van Hook, 130 S.Ct. 13, 17 (2009)
(stating that counsel must make “objectively reasonable
choices”) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479
(2000)); see Wiggins, 539 U.S. at 527 (“Strickland does not
establish that a cursory investigation automatically justifies
a tactical decision with respect to sentencing strategy.”).

    The California Supreme Court cited Burger v. Kemp,
483 U.S. 776 (1987), as supporting the proposition that it is
reasonable to forego mitigating evidence when it would open
                     ANDREWS V. DAVIS                     105

the door to rebuttal evidence which would contradict
counsel’s strategy of portraying defendant as the follower.
See Andrews, 52 P.3d at 673 (citing Burger, 483 U.S. at 793).
The California Supreme Court’s reliance on Burger is
unreasonable for two reasons. First, in Burger, defense
counsel performed a robust initial mitigation investigation
and spoke to a family member, a friend, and a psychologist to
learn about his client’s background. See Burger, 483 U.S. at
790–91. Based upon what Burger’s counsel learned, counsel
decided against pursuing a mitigation case relying on that
background, id. at 791, even though it turned out that further
investigation would have produced additional evidence that
defendant had “an exceptionally unhappy and unstable
childhood.” Id. at 789. As the Supreme Court concluded,
counsel’s initial investigation led him to make the
“reasonable decision that his client’s interest would not be
served by presenting this type of [mitigating] evidence.” Id.
at 791. The facts of this case are very different. Unlike
Burger’s defense counsel, Andrews’s attorneys never
performed any meaningful initial investigation into their
client’s background. Absent such an investigation, the
lawyers cannot be said to have made informed strategic
choices about how to proceed in a possible penalty phase of
trial.

    Second and relatedly, in Burger, counsel’s depiction of
his client as a follower was a reasonable strategy for it was
supported by the record. See Burger, 483 U.S. at 779 (noting
primary evidence at trial showed that Burger’s co-defendant
Stevens “was primarily responsible for the plan to kidnap the
[victim], the physical abuse of the victim, and the decision to
kill him”). In contrast, the evidence at Andrews’s trial
plainly showed that Andrews was not a follower, but the main
criminal actor. Thus, the California Supreme Court’s
106                  ANDREWS V. DAVIS

statement that “we reach the same conclusion on comparable
facts,” see Andrews, 52 P.3d at 673, is wrong for the facts in
Burger are not comparable. The California Supreme Court’s
reliance on Burger is unreasonable.

    The California Supreme Court also unreasonably applied
Supreme Court law when it cited Bell v. Cone, 535 U.S. 685
(2002), to support its conclusion that counsel reasonably
decided not to present evidence of Andrews’s background.
See Andrews, 52 P.3d at 673 (citing Cone, 535 U.S. at
699–700). Before noting that defense counsel saw the
neighborhood Andrews grew up in and considered it
unimpressive because it was comparable to counsel’s own,
the California Supreme Court cited Cone for the proposition
that counsel may reasonably decide not to present background
evidence when testimony about a defendant’s “normal youth”
might, in the eyes of the jury, be perceived negatively and cut
the other way. See id. However, all reasonable jurists would
agree that the years Andrews spent at Mt. Meigs were the
antithesis of a “normal youth.” The California Supreme
Court’s invocation of Cone, while simultaneously ignoring
that Andrews’s “youth” included his experience at Mt. Meigs,
was an objectively unreasonable application of Supreme
Court law. See Wiggins, 539 U.S. at 526–27 (observing that
the “strategic decision” offered “to justify counsel’s limited
pursuit of mitigating evidence resembles . . . a post hoc
rationalization of counsel’s conduct.”); cf. Porter, 558 U.S.
at 43 (concluding that state supreme court was “unreasonable
to discount to irrelevance the evidence of Porter’s abusive
childhood”).
                         ANDREWS V. DAVIS                               107

     (5) Opening the Door to Andrews’s Prior Acts of
         Violence.

    Finally, the California Supreme Court concluded
counsel’s failure to present the Mt. Meigs evidence, among
other mitigation evidence, was reasonable because such
evidence could have opened the door to more evidence
regarding Andrews’s prior acts of violence. See Andrews,
52 P.3d at 669 (stating that by not introducing the evidence,
counsel “foreclosed the introduction of substantial
aggravating evidence in rebuttal or on cross-examination that
could have undermined the defense by depicting petitioner as
aggressive and desensitized to violence”). The California
Supreme Court’s decision on this point is unreasonable for at
least two reasons.

    One, the prosecutor from Andrews’s trial, who in the
interim had become a superior court judge, “testified that if
the defense had presented evidence of the Alabama prison
conditions he probably would not have called rebuttal
witnesses to give details about petitioner’s Alabama crimes.”
See Andrews, 52 P.3d at 682 (Kennard, J., dissenting).4




 4
   It is also possible, if not likely, that a California court would not have
admitted evidence of prior offenses to rebut the mitigating evidence of
childhood abuse that Andrews suffered at Mt. Meigs. Cf. In re Lucas,
94 P.3d 477, 510 (Cal. 2004) (concluding, in a unanimous decision, that
mitigating evidence showing “that a defendant suffered abuse in childhood
generally does not open the door to evidence of [a] defendant’s prior
crimes or other misconduct”).
108                     ANDREWS V. DAVIS

    Two, even if the prosecutor had rebutted with more
evidence regarding Andrews’s prior violent crimes,5 the jury
already knew based upon Andrews’s heinous crimes of
conviction that he was “aggressive and desensitized to
violence.” The jury also knew, by stipulation, of Andrews’s
prior convictions for murder in 1967, armed robbery in 1968,
escape in 1969, and robbery in 1977 which the prosecution
introduced as aggravating factors at the penalty phase.6 More
evidence regarding Andrews’s prior convictions would have
reinforced what the jury already knew, namely that Andrews
committed heinous crimes and clearly was “aggressive and
desensitized to violence.”

    The clearly established law of Strickland itself supports
the conclusion that the California Supreme Court’s decision
was unreasonable. In Strickland, it was reasonable for
counsel not to present mitigating evidence that “would barely
have altered the sentencing profile” and could have opened
the door to prior convictions which counsel had successfully
moved to exclude. 466 U.S. at 699–700. So too in Darden


  5
   The majority accurately observes that the referee and the California
Supreme Court majority concluded that if trial counsel had presented the
Mt. Meigs evidence, the prosecutor would have introduced rebuttal
evidence. Majority at 30–31 n.8. But that finding fails to take into
account the plain statement by the former prosecutor—later a state court
judge—that he probably would not have responded with rebuttal evidence.
The referee and California Supreme Court decided not to take the former
prosecutor at his word and instead speculated about what the prosecutor
would have done. That decision was unreasonable. Cf. 28 U.S.C.
§ 2254(d)(2).
 6
   By stipulation, the jury knew that Andrews’s 1967 murder conviction
was for felony murder stemming from an incident when Andrews, then 16,
and an accomplice robbed a grocery store and the accomplice (not
Andrews) shot and killed a store clerk during the robbery.
                    ANDREWS V. DAVIS                      109

v. Wainwright, where counsel’s decision to present an
alternate strategy at sentencing was reasonable because
evidence regarding defendant’s background could have
opened the door to his prior convictions that had not
previously been admitted in evidence. See 477 U.S. 168, 186
(1986).

    In contrast, in cases where a defendant’s prior criminal
history is known to the jury, counsel performs unreasonably
in not presenting a range of persuasive mitigating evidence
about the defendant’s background that “no other source had
opened up.” See Rompilla v. Beard, 545 U.S. 374, 383, 390
(2005) (finding counsel ineffective when counsel knew the
prosecution would introduce at the penalty phase defendant’s
“significant history” of prior violent crimes, but counsel
nevertheless failed to review the readily available prior
conviction file and present mitigation evidence therefrom);
see also Williams, 529 U.S. at 368–69, 395 (finding counsel’s
performance deficient when the jury knew of Williams’s
extensive violent criminal history, and counsel failed to
review juvenile records that would have uncovered graphic
mitigating evidence of Williams’s “nightmarish childhood”).
At a minimum, counsel has a duty to conduct the necessary
investigation into his client’s background to learn the range
of mitigating evidence available. See Williams, 529 U.S. at
395–96.

                              B

    In sum, there was no conceivable tactical reason either to
forego the investigation into Andrews’s background or to
forego the presentation of the compelling Mt. Meigs
evidence. Any competent attorney would have concluded
that the Mt. Meigs evidence was the only evidence in this
110                    ANDREWS V. DAVIS

case that carried a substantial probability of a different
sentence. That evidence is critical precisely because it
provides the jury with a reason to extend mercy despite
Andrews’s heinous crimes. As such, any competent attorney
would have presented the evidence, argued that the abuse
Andrews suffered as a youth at the hands of his state
custodians explains why he is inured to violence, and urged
the jurors to spare Andrews’s life on that ground.7

    The California Supreme Court recognized that the United
States Supreme Court held in Williams that habeas relief was
warranted when counsel failed at the penalty phase to present
to the jury evidence of petitioner’s “nightmarish childhood,”
model behavior while imprisoned, and borderline retardation.
See Andrews, 52 P.3d at 674. The California Supreme Court,
however, distinguished Williams because, in that case,
counsel’s investigation was “essentially nonexistent due to an
incorrect understanding of the law.” See id. (citing Williams,
529 U.S. at 395–96). The California Supreme Court is
correct that in Williams, counsel’s failure to investigate was
based at least in part upon his incorrect understanding of the
law. But surely no reasonable jurist would read Williams as
holding that a virtually nonexistent penalty phase
investigation is reasonable so long as it is not based upon a
misunderstanding of the law. Indeed, the United States


  7
    The California Supreme Court suggested there was “no compelling
connection” between the un-presented mitigating evidence and the crimes
Andrews committed. Andrews, 52 P.3d at 672 (quoting In re Ross,
892 P.2d 1287, 1305 (Cal. 1995)). To the extent the California Supreme
Court suggested a causal nexus is required between mitigating evidence
and defendant’s crimes, the California Supreme Court’s decision was
contrary to Supreme Court law. See Skipper v. South Carolina, 476 U.S.
1, 4 (1986) (noting “well-established” principle that any relevant
mitigating evidence may be considered).
                      ANDREWS V. DAVIS                       111

Supreme Court does not read Williams so narrowly. In
Wiggins, the Supreme Court underscored that in Williams it
held the “failure to uncover and present voluminous
mitigating evidence at sentencing could not be justified as a
tactical decision . . . because counsel had not ‘fulfill[ed] their
obligation to conduct a thorough investigation of the
defendant's background.’” See Wiggins, 539 U.S. at 522
(quoting Williams, 529 U.S. at 396).

    The duty to conduct a thorough investigation of a capital
defendant’s background is imposed on counsel to prevent this
very circumstance: a man sentenced to death without
consideration of non-cumulative, readily available personal
history evidence of compelling mitigating value. The
California Supreme Court unreasonably applied clearly
established federal law when it concluded that defense
counsel’s performance was constitutionally adequate in this
case.

                               III

    Under Strickland’s second prong, the California Supreme
Court majority concluded that even if Andrews’s counsel
performed inadequately, Andrews suffered no prejudice from
the omission of the Mt. Meigs evidence at sentencing. That
conclusion too is based upon an objectively unreasonable
application of Strickland and its progeny.

    Under Strickland, a capital defendant suffers prejudice
from counsel’s deficient performance when “there is a
reasonable probability that, absent the errors [of counsel], the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. As Strickland clarified,
112                  ANDREWS V. DAVIS

“[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome,” not a probability that
the result “more likely than not” would have been different.
Id. at 693–94. For a state court considering a habeas petition
asserting ineffective assistance of counsel, the inquiry is
straightforward: counsel’s deficient performance prejudiced
the petitioner if he can show “a reasonable probability that at
least one juror” would have recommended a sentence of life
instead of death. Wiggins, 539 U.S. at 537. For a federal
court reviewing a habeas petition filed after the AEDPA’s
passage, the determinative question is whether the state
court’s finding that petitioner was not prejudiced was not just
error, but “was contrary to, or involved an unreasonable
application of, clearly established Federal law as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1); see Cullen v. Pinholster, 563 U.S. 170, 181
(2011).

    In this case, the California Supreme Court concluded
there was no reasonable probability of a life sentence even if
counsel had presented the mitigating evidence regarding
Andrews’s background. Unlike the majority, I would hold
that such a conclusion constitutes an unreasonable application
of federal law that was clearly established at the time of the
state court’s decision.

                              A

    Consideration of the defendant’s life history is a
“constitutionally indispensable part of the process of
inflicting the penalty of death.” Eddings, 455 U.S. at 112.
The abuse that Andrews suffered at Mt. Meigs epitomizes the
“kind of troubled history” that the Supreme Court repeatedly
has “declared relevant to assessing a defendant’s moral
                     ANDREWS V. DAVIS                      113

culpability.” Wiggins, 539 U.S. at 535; see also id. at 535–36
(holding a different sentencing outcome was reasonably
probable had defense counsel presented evidence that
Wiggins suffered early privation and abuse, as well as
physical torment, sexual molestation, and repeated rape in
foster care). Such evidence is “relevant because of the belief,
long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be
less culpable than defendants who have no such excuse.”
Boyde v. California, 494 U.S. 370, 382 (1990) (internal
quotations marks omitted).

    Without consideration of the compelling and readily
available Mt. Meigs evidence, Andrews’s moral culpability
could not be fairly gauged at sentencing. See Porter,
558 U.S. at 41. Indeed, the “benchmark” for assessing an
ineffective assistance claim is “whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. Here, counsel’s failure
to present the evidence of severe abuse that Andrews
suffered, combined with counsel’s failure to present any
substantial mitigation case at sentencing, deprived Andrews
of a fair sentencing proceeding and renders his death sentence
“unreliable.” See id. at 700. At bottom, it was unreasonable
for the California Supreme Court to conclude that if the jury
had heard the Mt. Meigs evidence, there is no reasonable
probability that even one juror would have recommended a
sentence of life instead of death.

    The majority disagrees and observes that the Supreme
Court “has found a reasonable probability of a different
outcome when scant and weak aggravating evidence could
114                  ANDREWS V. DAVIS

have been presented in rebuttal to strongly mitigating
evidence.” Majority at 47–47 (citing Wiggins, 539 U.S. at
534–36, 537–38). Yet the Supreme Court has also found a
reasonable probability of a different outcome when
aggravating evidence is substantial and mitigating evidence
is compelling. See Williams, 529 U.S. at 398; Porter,
558 U.S. at 40–44. Indeed, at the time of the California
Supreme Court’s decision in this case, no decision by the
United States Supreme Court had excused a failure to present
a compelling mitigation case where one was available.

     As the majority recognizes, Williams and Porter are
particularly instructive. In Williams, the Supreme Court held
there was a reasonable probability of a different result at
sentencing if counsel had presented evidence either of
defendant’s “nightmarish childhood” or his diminished
intellectual ability. See Williams, 529 U.S. at 398. Notably,
unlike in this case, Williams’s counsel actually presented
mitigating evidence, including testimony from two neighbors
and Williams’s mother, and “a taped excerpt of a statement
by a psychiatrist.” See id. at 369. Contrary to the majority’s
description of the case, the aggravating factors in Williams
were severe. Two prosecution expert witnesses testified at
sentencing “that there was a ‘high probability’ that Williams
would pose a serious continuing threat to society.” See id. at
368–69. And the jury heard evidence that in the months after
the murder for which Williams was sentenced to death,
“Williams savagely beat an elderly woman, stole two cars, set
fire to a home, stabbed a man during a robbery, set fire to the
city jail, and confessed to having strong urges to choke other
inmates and to break a fellow prisoner’s jaw.” Id. at 418
(Rehnquist, C.J., concurring in part and dissenting in part)
(quoting Williams v. Taylor, 163 F.3d 860, 868 (4th Cir.
1998), rev’d, 529 U.S. 362 (2000)); see id. at 368 (providing
                     ANDREWS V. DAVIS                       115

the majority’s description of the aggravating evidence,
including that Williams: had committed “two separate violent
assaults on elderly victims,” specifically setting a fire outside
one elderly victim’s house before attacking and robbing him,
and leaving the other elderly victim, a woman, in a
“vegetative state”; was convicted of arson for the fire he set
in the jail while awaiting trial; and had prior convictions for
armed robbery, burglary, and grand larceny).

    Despite these strong aggravating factors, the Supreme
Court held that Williams was prejudiced by his counsel’s
failure to introduce the undiscovered mitigation evidence.
Importantly for this case, the Court stated that the evidence
regarding Williams’s “nightmarish childhood” would have
been enough, standing alone, to sustain a finding of prejudice.
As the Court expressly held, “the graphic description of
Williams’ childhood, filled with abuse and privation, or the
reality that he was ‘borderline mentally retarded,’ might well
have influenced the jury’s appraisal of his moral culpability.”
See id. at 398 (emphasis added).

    Williams plainly supports the conclusion that the
California Supreme Court unreasonably applied clearly
established federal law in concluding that Andrews was not
prejudiced by his counsel’s failure to introduce evidence of
the extreme brutality that Andrews suffered as a youth. The
total evidence in aggravation, that which was admitted and
that which may have come in as rebuttal evidence concerning
Andrews’s prior violent crimes (which the prosecutor
testified at the state court hearing he probably would not have
introduced), was certainly no greater than the aggravating
evidence in Williams. Similar to Williams, the overlooked
mitigating evidence in Andrews’s case includes severe and
sustained physical, sexual, and psychological abuse.
116                      ANDREWS V. DAVIS

Andrews’s overlooked mitigating evidence is made even
stronger by the fact that the abuse at issue was inflicted in
large part at the hands of his state custodians and was broadly
corroborated by respected authorities, as previously
accounted.8

    The Supreme Court’s decision in Porter also
demonstrates the unreasonableness of the California Supreme
Court’s conclusion that Andrews was not prejudiced.
Although the Supreme Court decided Porter after the
California Supreme Court denied Andrews’s ineffective
assistance claim, Porter is still relevant to assessing prejudice
under 28 U.S.C. § 2254(d).9 See Wiggins, 539 U.S. at 522

 8
   The Supreme Court later stated that Williams offers “no guidance with
respect to whether a state court has unreasonably determined that
prejudice is lacking” because AEDPA deference was not applied to the
Strickland prejudice question in Williams. See Cullen v. Pinholster,
131 S.Ct. 1388, 1410–11 (2011) (citing Williams, 529 U.S. at 395–97); but
see Williams, 529 U.S. at 415–16 (O’Connor, J., concurring) (“I also agree
with the Court that, to the extent the Virginia Supreme Court did apply
Strickland, its application was unreasonable”). In any event, Williams was
decided two years before the California Supreme Court denied Andrews’s
habeas petition. Thus, at the time the California Supreme Court decided
Andrews’s ineffective assistance claim, Williams was highly relevant for
determining what omitted mitigating evidence is prejudicial under
Strickland. See Williams, 529 U.S. at 398 (“[T]he graphic description of
Williams’ childhood, filled with abuse and privation, or the reality that he
was ‘borderline mentally retarded,’ might well have influenced the jury’s
appraisal of his moral culpability.”); see also id. at 415 (O’Connor, J.,
concurring) (concluding that Williams was prejudiced by counsel’s failure
to present substantial mitigating evidence, including evidence of his
“nightmarish childhood,” and that the Virginia Supreme Court was
unreasonable in concluding otherwise).
     9
    The majority acknowledges that Porter is relevant to determining
whether the California Supreme Court unreasonably applied Strickland.
Majority at 59 (“Although Porter was decided years after the California
                          ANDREWS V. DAVIS                               117

(approving reliance on Supreme Court opinions issued after
the state court’s decision, when the merits of the claim were
governed by the holdings of Strickland).

    In Porter, due to counsel’s failure to adequately
investigate Porter’s background, the jury that sentenced him
to death never knew that he had been abused as a child and
was a decorated Korean War veteran suffering from post-
traumatic stress. See Porter, 558 U.S. at 40–44. The
Supreme Court held that the Florida Supreme Court was
unreasonable in concluding that Porter had not been
prejudiced at sentencing by the omission of this key personal
history evidence. The Supreme Court concluded that without
that evidence, the sentencer was unable to “accurately gauge”
the defendant’s “moral culpability” and habeas relief was
warranted because confidence in the sentencing outcome had
been undermined. See id. at 41; see also Rompilla, 545 U.S.
at 393 (stating that the relevant test is not whether the jury,
had it heard the omitted mitigating evidence, could still have
returned a verdict of death).10


Supreme Court’s opinion in this case, we give its prejudice analysis
careful consideration, because Porter considered prejudice under AEDPA,
and therefore provides direction for determining what constitutes an
unreasonable application of the prejudice prong of Strickland under
AEDPA.”).
  10
     The majority criticizes my reference to Rompilla, insisting Rompilla
“do[es] not provide any guidance on the issue before us, whether a state
court’s determination that counsel’s deficiency was not prejudicial was an
unreasonable application of clearly established Supreme Court precedent.”
Majority at 65 n.24. But I cite Rompilla for the well-established principle
that the Strickland test for prejudice does not turn on whether the jury still
could have returned a death sentence even if it had heard the mitigating
evidence. See Strickland, 466 U.S. at 694 (“The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional
118                     ANDREWS V. DAVIS

     As in Williams, the Supreme Court in Porter affirmed that
a strong case in aggravation does not preclude the conclusion
that a state court was unreasonable in denying habeas relief.
Porter stood convicted of two murders and faced
considerable evidence of premeditation, but the Supreme
Court nonetheless held it was objectively unreasonable for the
Florida Supreme Court to conclude that Porter had not been
prejudiced at sentencing by the omission of the mitigating
evidence. Porter, 558 U.S. at 31. The same conclusion
applies in Andrews’s case. Despite strong aggravating
evidence, there is a reasonable probability of a different result
at sentencing if the jury had heard the powerful evidence of
the abuse Andrews suffered as a youth. It is unreasonable to
conclude otherwise.

    The majority disagrees. Relying on the Supreme Court’s
opinion in Woodford v. Visciotti, 537 U.S. 19 (2002), decided
after the California Supreme Court’s decision in this case, the
majority insists it was not unreasonable to hold that Andrews
suffered no prejudice. Majority at 63–64. The majority is
mistaken. The balance of mitigating and aggravating factors
in Visciotti was dramatically different from the balance in
Andrews. In Visciotti, the potential mitigating evidence at
issue was expert testimony addressing the psychological
abuse that Visciotti suffered due to being raised in a
dysfunctional family. See Visciotti, 537 U.S. at 26. Visciotti
involved no allegations of physical or sexual abuse, and the
psychological abuse failed to approach what Andrews
experienced at Mt. Meigs. The aggravating evidence in


errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.”). The test is not whether counsel’s inadequate
performance “more likely than not altered the outcome in the case.” See
id. at 693.
                    ANDREWS V. DAVIS                      119

Visciotti included a prior offense in which Visciotti stabbed
“a pregnant woman as she lay in bed trying to protect her
unborn baby.” See id. Given the strong evidence in
aggravation and the relatively weak mitigating evidence, the
Supreme Court concluded it was not unreasonable for the
California Supreme Court to conclude that Visciotti was not
prejudiced by counsel’s failure to introduce the dysfunctional
family evidence. Id. at 26–27. In contrast, the facts of
Andrews’s case present a very different balance of factors
and compel a different result. The majority’s contention that
the Mt. Meigs evidence at most carries only the “mere
possibility of a different outcome,” Majority at 66, grossly
underestimates the mitigating force of that evidence. The Mt.
Meigs mitigating evidence in Andrews is extraordinarily
strong. The majority’s reliance on Visciotti is unfounded.

                              B

    The California Supreme Court also reasoned that
Andrews was not prejudiced because the Mt. Meigs evidence,
in addition to evidence of abuse Andrews suffered as an adult
in the Alabama prison system, is “not conclusively and
unambiguously mitigating” but “could equally have proved
a double-edged sword.” See Andrews, 52 P.3d at 670–71.
According to the California Supreme Court, “[r]ather than
engendering sympathy” such 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” or could have confirmed Andrews had “an antisocial
personality.” See id. at 671. That conclusion is unreasonable.

   The jury already knew from Andrews’s heinous crimes of
conviction and from the stipulated prior convictions that
Andrews was antisocial and “had become desensitized and
120                  ANDREWS V. DAVIS

inured to violence and disrespect for the law.” No person
considering Andrews’s crimes of conviction would conclude
otherwise. But the jurors knew absolutely nothing about
Andrews’s past that might explain the person he had become
and provide a basis for the exercise of mercy.

     The severe and sustained abuse that Andrews suffered at
Mt. Meigs provides such evidence. The California Supreme
Court agreed the evidence presented at the state court hearing
“leaves no doubt” Andrews “endured horrifically demeaning
and degrading circumstances.” See Andrews, 52 P.3d at 670.
Yet the jury that sentenced Andrews to death knew nothing
about those circumstances. Had the jury heard that for two
years as a teenager Andrews was subjected to brutal,
inhumane, and degrading abuse by his state custodians at a
segregated reform school for African-American children in
Alabama in the 1960s, there is a reasonable probability that
at least one juror would have been swayed to exercise mercy
and spare Andrews’s life. There is “too much mitigating
evidence that was not presented to now be ignored.” Porter,
558 U.S. at 44 (internal quotation marks omitted). No
reasonable person would conclude otherwise.

    The prejudice to Andrews caused by the omission of the
Mt. Meigs evidence at sentencing is compounded by the fact
that counsel presented no sympathetic mitigating evidence at
Andrews’s sentencing. Indeed, at the penalty phase of
Andrews’s trial, counsel called no witnesses and offered no
statements from psychologists, family, or friends. In short,
defense counsel presented almost nothing to counter the
prosecution’s portrayal of their client. The clearly established
law of Strickland recognizes that some errors by counsel will
have “pervasive effect . . . altering the entire evidentiary
                     ANDREWS V. DAVIS                      121

picture.” See Strickland, 466 U.S. at 695–96. Andrews is
such a case.

    It is unconscionable that Andrews should be sentenced to
death without consideration of the egregious abuse that he
suffered at Mt. Meigs. Had counsel presented the Mt. Meigs
evidence at sentencing, it is reasonably probable that at least
one juror would have been moved to exercise mercy and
spare Andrews’s life. It is objectively unreasonable, and a
legal fiction, to conclude otherwise.

                              IV

   The district court’s conditional grant of sentencing relief
should be affirmed. I respectfully dissent.
