Jesse Andrews v. Ron Davis

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JESSE JAMES ANDREWS,                   Nos. 09-99012
            Petitioner-Appellant/           09-99013
                  Cross-Appellee,
                                          D.C. No.
                v.                    2:02-CV-08969-R

RON DAVIS,
             Respondent-Appellee/         OPINION
                 Cross-Appellant.

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

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

                Filed December 16, 2019

Before: Sidney R. Thomas, Chief Judge, and Ronald M.
Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Jay S.
Bybee, N. Randy Smith, Mary H. Murguia, Jacqueline H.
Nguyen, Paul J. Watford, John B. Owens and Michelle T.
               Friedland, Circuit Judges.

               Opinion by Judge Murguia;
       Partial Concurrence and Partial Dissent by
                   Judge N.R. Smith
2                      ANDREWS V. DAVIS

                          SUMMARY *


                Habeas Corpus/Death Penalty

    In an appeal and cross-appeal arising from Jesse
Andrews’s habeas corpus petition challenging his California
conviction and death sentence on three counts of murder, the
en banc court affirmed the district court’s grant of sentencing
relief based on ineffective assistance of counsel, dismissed
as unripe Andrews’s Eighth Amendment claim challenging
California’s lethal-injection protocol, and denied a request
to certify for appeal Andrews’s uncertified claims.

    Regarding the performance prong in Strickland v.
Washington, 

 (1984), the en banc court held that
the California Supreme Court unreasonably applied clearly
established federal law in concluding that Andrews received
constitutionally adequate counsel at the penalty phase. The
en banc court held that the only reasonable interpretation of
Supreme Court precedent and the facts of this case lead to
the following conclusions: (1) that Andrews’s attorneys
failed in their duty to undertake a reasonable investigation at
the penalty phase; (2) that their choices cannot be
rationalized as “strategic” or “tactical;” and (3) that any
reasonably competent attorney would have discovered and
introduced substantial and compelling mitigating evidence
that existed. The en banc court held that no fair-minded
jurist would conclude otherwise.

   Regarding Strickland’s prejudice prong, the en banc
court held that the California Supreme Court’s conclusion—

    *
      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

that Andrews suffered no prejudice from the omission of the
substantial and compelling evidence that his attorneys
should have introduced but didn’t—was objectively
unreasonable. The en banc court held that, without having
heard the substantial and compelling mitigating evidence,
the jury could not fairly gauge Andrews’s moral culpability
at sentencing, and that no fair-minded jurist would disagree.

    Concurring in part and dissenting in part, Judge N.R.
Smith, joined by Judges Rawlinson and Owens, wrote that
the majority essentially evaluated the merits de novo rather
than with the appropriate deference under the Antiterrorism
and Effective Death Penalty Act; and that the California
Supreme Court reasonably concluded that Andrews was not
prejudiced by his counsel’s deficient performance during
sentencing.


                        COUNSEL

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

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

                         OPINION

MURGUIA, Circuit Judge:

    Jesse Andrews was sentenced to death by a jury that only
knew the State’s view of him. He was, according to the
prosecutor, a “vicious animal.” The jury, however, did not
know—because it was never told—anything about
Andrews’s upbringing in a segregated and impoverished
area of Mobile, Alabama. Andrews’s counsel did not tell the
jury that Andrews, as a child, had been confined at the
Alabama Industrial School for Negro Children known as
“Mt. Meigs”—a segregated, state-run institution that, in the
words of one witness, was a “slave camp for children.” The
jury was not told that, during these formative years, Andrews
was repeatedly subject to brutal abuse at the hands of his
state custodians. It was not told that, from the age of
fourteen, Andrews was in the custody of Alabama state
institutions so degrading that federal courts later found the
conditions in those institutions violated the Eighth
Amendment’s prohibition on cruel and unusual punishment.
Nor was the jury told that, in the view of mental health
experts, the severe abuse Andrews suffered made his
subsequent criminal behavior understandable and
predictable.

    In short, Andrews’s counsel did nothing to
counterbalance the prosecutor’s view of their client or to
portray Andrews as a human being, albeit one who had
committed violent crimes. In fact, Andrews’s counsel
introduced almost no evidence in mitigation at the penalty
phase. Despite this record of deficient representation, the
California Supreme Court concluded that, under Strickland
v. Washington, 

 (1984), Andrews received
constitutionally adequate representation at the penalty phase.
                     ANDREWS V. DAVIS                         5

That decision       is   fundamentally      and     objectively
unreasonable.

    Indeed, it is unconscionable and unreasonable to uphold
a sentence of death when the jury never heard readily
available mitigating evidence of the magnitude present here.
This is especially so when, as here, counsel failed to present
any meaningful evidence in mitigation.               Counsel’s
performance at the penalty phase of Andrews’s trial was so
deficient that it failed to “fulfill the role in the adversary
process that the [Sixth] Amendment envisions,”
undermining all confidence in the sentence. 

.

    To be sure, our deference to state court decisions is at its
zenith on federal habeas review. See Harrington v. Richter,

 (2011). Indeed, federal courts are barred
from granting habeas relief as to state court convictions if
jurists of reason could debate the correctness of the state
court’s decision, and a “state court must be granted a
deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.” 

. That deference, however, “does not by definition
preclude relief.” Miller-El v. Cockrell, 

(2003).

    This case presents the type of “extreme malfunction[]”
in the operation of a state’s criminal justice system that
justifies the intervention of a federal habeas court. Richter,

 (quoting Jackson v. Virginia, 

,
332 n.5 (1979) (Stevens, J., concurring in judgment)). We
therefore affirm the district court’s grant of sentencing relief
based on Andrews’s ineffective assistance of counsel claim.
The California Supreme Court unreasonably applied clearly
established federal law when it concluded that Andrews
received constitutionally adequate representation at the
6                    ANDREWS V. DAVIS

penalty phase of his trial. Unless the State elects to
reprosecute the penalty phase, the writ will issue.

                              I

                              A

    The facts of Andrews’s crimes inspire little sympathy.
In December 1979, police were called to a Los Angeles
apartment, where officers located the bodies of three murder
victims—Preston Wheeler, Patrice Brandon, and Ronald
Chism. In re Andrews, 

 (Cal. 2002). Police
later arrested Charles Sanders in connection with the crime.
People v. Andrews, 

 (Cal. 1989). Sanders
entered a plea agreement and gave a statement describing the
murders and implicating Andrews. 

 at 288–89. Andrews
was arrested and charged in June 1982. 

 at 295–96.

    The evidence presented at trial connecting Andrews to
the murders primarily consisted of Sanders’s testimony, the
testimony of another witness, and fingerprint and palm print
evidence. In re Andrews, 

. Sanders testified
that he and Andrews devised a plan to rob Wheeler, a drug
dealer. 

 After entering Wheeler’s apartment and smoking
marijuana with him, Sanders and Andrews drew their
weapons, tied up Wheeler and Brandon, and began to search
the apartment for drugs and money. 

 When their search
proved unfruitful, Andrews said that he would “make
Brandon talk,” and he “dragged her into the kitchen and
closed the door.” 

 (quoting Andrews, 

).
Sanders testified that he heard Andrews “hitting Brandon
and later heard sounds as though they were having sex.” 

    After Andrews came out of the kitchen, Sanders began
searching for drugs in the attic. 

 Sanders testified that he
then heard two shots and, when he came down from the attic,
                     ANDREWS V. DAVIS                        7

Andrews told him he had shot Wheeler, at close range,
because Wheeler had tried to escape. 

 Sanders also
testified that Andrews told him he had killed Brandon before
leaving the kitchen. 

    While Sanders and Andrews were cleaning the
apartment, Chism “knocked on the door and asked if
everything was all right.” 

 According to Sanders,
Andrews “then hit Chism on the head, tied him up, and took
him into the bathroom,” where Andrews strangled him. 

(internal quotation mark omitted). Sanders then saw
Andrews reenter the kitchen and choke Brandon with a wire
clothes hanger. 

    The defense’s guilt-phase strategy consisted primarily of
“attempts to undermine Sanders’s credibility.” Andrews,

. Two inmates who had been in jail with
Sanders testified that he made statements suggesting that he
planned to fabricate a story to shift the blame for the murders
to someone else. 

 Andrews did not testify. 

    The jury deliberated for three days before finding
Andrews guilty of the first-degree murders of Wheeler,
Brandon, and Chism. Andrews was also convicted of rape,
sodomy by a foreign object, and robbery. In re Andrews, 52
P.3d at 658–59.         And the jury found four special
circumstances to be true—prior murder, multiple murder,
robbery-murder, and rape-murder—making Andrews
eligible for the death penalty. Id. at 659.

    The penalty-phase presentations for both the prosecution
and the defense were limited. The prosecution’s evidence
consisted of a stipulation and two exhibits. Id. The exhibits
were photographs of two of the victims that had been
excluded from the guilt phase because they were unduly
inflammatory. Id. The stipulation established Andrews’s
8                     ANDREWS V. DAVIS

birthday (showing that Andrews was twenty-nine years old
at the time of the murders), and that Andrews had pleaded
guilty in Alabama to the crimes of armed robbery, escape,
and robbery. Andrews, 

. The prosecution
gave a short closing presentation focused on the violent
circumstances of the crimes that repeatedly mentioned
Andrews’s prior convictions for violent offenses.

    The defense’s evidence, admitted by stipulation,
consisted of two “sworn statements describing the
circumstances surrounding [Andrews’s] prior Alabama
murder conviction.” 

 According to the statements,
Andrews and his accomplice “entered a grocery store and
announced a robbery. When the store clerk placed his hand
down the front of his apron, [Andrews’s] companion fired
three gunshots, killing” the store clerk. 

    After calling no witnesses and introducing only a brief
description of Andrews’s previous crimes into evidence,
Andrews’s counsel gave a short, rambling closing
statement—spanning just nine pages of trial transcript. 1
Counsel’s statement overwhelmingly focused on Andrews’s
age. In fact, counsel repeatedly suggested that the “fact
alone that [Andrews was] only [twenty-nine] years old can
be sufficient in mitigation for you to consider. That alone.”
Counsel’s brief presentation also veered from topic to
topic—from the security at Folsom prison, to Andrews’s
secondary role in his prior murder conviction, to the fact that
Sanders, as well as defendants in other high-profile murders,
did not receive death sentences for their crimes.

   The jury returned a death verdict on each of the three
murder counts. In re Andrews, 52 P.3d at 658–59. The

   1
     A copy of this portion of the trial transcript is attached as
Appendix A.
                        ANDREWS V. DAVIS                                9

California Supreme Court affirmed the conviction and
sentence on direct appeal on August 3, 1989. Andrews, 

.

                                   B

    Andrews later filed petitions for state post-conviction
relief before the California Supreme Court. One claim
asserted that, at the penalty phase of his trial, Andrews
received ineffective assistance from his counsel—Gerald
Lenoir and Hal Miller—based on their failure to investigate
avenues of mitigation and to present mitigation evidence. In
re Andrews, 

.

                                    1

    The California Supreme Court appointed a state superior
court judge to conduct a reference hearing 2 and to take
evidence and make findings of fact on a series of questions
related to Andrews’s ineffective assistance of counsel claim.

 The referee received testimony from more than fifty
witnesses over multiple years. 

 at 660 & n.2.

    The referee determined that “[n]o character evidence and
virtually no mitigation was presented at the penalty trial.”
However, through the use of “standard investigative
techniques” and “simple persistence,” Andrews’s counsel
     2
       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, 

 (Cal. 1994). The referee acts as “an impartial fact finder for [a
California appellate court].” In re Boyette, 

 (Cal. 2013)
(internal quotation marks omitted). Although the referee’s factual
findings are not binding on the court, the findings are “entitled to great
weight where supported by substantial evidence.” 

 (internal quotation
mark omitted).
10                  ANDREWS V. DAVIS

could have identified and presented a “large number of
witnesses” in mitigation, “painting an in-depth portrait” of
Andrews.

    Based on the referee’s findings, that portrait would have
revealed that Andrews was born and raised in a segregated
and poor part of Mobile, Alabama in the 1960s. In re
Andrews, 53 P.3d at 660. His parents were alcoholics who
separated soon after his birth, leaving Andrews and his
siblings in the care of his grandparents. Id. When Andrews
was approximately ten years old, his grandfather—described
by the referee as a “pivotal figure” in his life—died. Id.
(internal quotation marks omitted). After his grandfather’s
death, Andrews became “more withdrawn, [his] truancy
increased significantly, and he started to get involved in
minor legal scrapes.” At age fourteen, as a result of his
involvement in a car theft, Andrews was committed to Mt.
Meigs. In re Andrews, 53 P.3d at 660.

     The conditions at Mt. Meigs were “appalling.” Id. A
federal district court judge—who had participated in
litigation pertaining to the conditions at Mt. Meigs before
joining the bench—testified at the reference hearing that “the
institution was a penal colony for children.” Id. at 677
(Kennard, J., dissenting) (internal quotation mark omitted).
Another witness, a former juvenile probation officer—who
testified before Congress and state legislatures about
juvenile facilities around the country—described Mt. Meigs
as a “slave camp for children.” Id. (internal quotation marks
omitted). He testified that the children there were “beaten
all the time with, among other things, broomsticks, mop
handles, and fan belts” and that Mt. Meigs was “by far, by
far . . . the worst facility” he had ever seen. Id. (internal
quotation marks omitted).
                     ANDREWS V. DAVIS                        11

    The former probation officer added that the children
committed to Mt. Meigs in the 1960s had “no chance of
rehabilitation” and “came out much worse” than when they
entered. Indeed, the institution was “not designed for
rehabilitation.” There were “no vocational programs, no
counseling, and virtually no education” available. In re
Andrews, 53 P.3d at 677. Instead, children were “put to
work in the fields, picking cotton and tending vegetables.”
Id. At night, there was little supervision, leading to “a lot of
sexual abuse of children.” Id. (internal quotation marks
omitted).

     Thirteen of the witnesses who testified at the reference
hearing had been committed to Mt. Meigs, and seven were
there at the same time as Andrews. Id. Each testified to
“horrific conditions,” describing beatings with “sticks
(sometimes lead-filled), bullwhips, and fan belts, often for
trivial matters.” Id. These witnesses repeated one
particularly cruel example of abuse: When a child was
disobedient in the fields or failed to pick his quota of cotton,
an overseer would “poke a hole in the ground and order him
to lie down, to pull down his pants, and to stick his penis into
the hole. The overseer would then beat the boy’s thighs with
a stick, often until the skin burst open. One witness
remembered seeing [Andrews] beaten in this manner.” Id.

    In 1971, a federal district court in Alabama determined
that “the frequent and indiscriminate use of corporal
punishment” by school personnel at Mt. Meigs demonstrated
a “callous indifference to children’s safety,” providing a
basis for liability for cruel and unusual punishment under the
Eighth Amendment. Stockton v. Ala. Indus. Sch. for Negro
Child., No. 2834-N (M.D. Ala. July 23, 1971) (order
adopting proposed findings of fact and conclusions of law
dated July 19, 1971).
12                  ANDREWS V. DAVIS

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

       [h]is academic schooling from that point was
       virtually nonexistent, and he was subjected to
       beatings, brutality, inadequate conditions and
       sexual predators . . . . He was rarely visited
       by family[, and his] passiveness and small
       physique caused him to be a target of older,
       tougher boys, from whom no protection or
       separation was provided.

    Because of his young age and slight build, that targeting
included “substantial sexual pressure.” In re Andrews, 

 (Kennard, J., dissenting). And, according to
Andrews’s mother, whatever “happened at that industrial
school [] ruined [Andrews’s] life.”

    Following his release from Mt. Meigs, Andrews
“became withdrawn and uncommunicative.” In re Andrews,
53 P.3d at 661 (majority opinion). “Over his family’s
objections, he began to associate with older, streetwise boys,
including Freddie Square, a more sophisticated young man
with manipulative and criminal tendencies.” Id. (internal
quotation mark omitted). Just months after his release from
Mt. Meigs, “at Square’s instigation,” Andrews and Square
robbed a grocery store. Id. During the robbery, Square shot
and killed the store clerk. Id. Shortly thereafter, Andrews
was convicted of murder and robbery for his role in the
crime. Id.

    Andrews spent the next ten years in various jails and
prisons throughout the state. Id. The referee described the
conditions in Alabama as
                    ANDREWS V. DAVIS                       13

       abysmal,     characterized     by     severe
       overcrowding,        racial      segregation,
       substandard facilities, no separation of the
       tougher inmates from younger or smaller
       inmates, constant violence, the persistent
       threat of sexual assaults and the constant
       presence of sexual pressure, the availability
       and necessity of weapons by all inmates, and
       degrading conditions in disciplinary
       modules.

Id. (internal quotation marks omitted).

     One expert witness described the Alabama prison system
at the time as a “national disgrace” and as either “the worst”
or “among a handful of the worst” prison systems in the
United States. Id. at 678 (Kennard, J., dissenting) (internal
quotation marks omitted). During the time Andrews was
incarcerated in Alabama, the prison conditions there, like the
conditions in Mt. Meigs, were found to violate the Eighth
Amendment. Id. at 676; see also Pugh v. Locke, 

, 322–31 (M.D. Ala. 1976).

    According to the testimony of a former physician at one
facility, the “conditions at the overcrowded and rat-infested
prisons [were] ‘so debilitating’ that they deprived inmates of
‘any opportunity to rehabilitate themselves or even to
maintain the skills already possessed.’” In re Andrews, 

 (Kennard, J., dissenting). When Andrews
entered the prison system, “it was newly integrated and
many of the [w]hite prison guards resented the [b]lack
prisoners, whom they called ‘things’ and ‘niggers.’” 

   Sexual assaults in the prisons were common and,
according to one expert witness, “[t]he prevailing view
among both staff and inmates was that an inmate who was
14                   ANDREWS V. DAVIS

raped ‘deserved’ it because he was ‘not man enough to
fight.’” 

 Although the precise details were unclear,
Andrews’s post-conviction counsel presented evidence at
the state court hearing that Andrews was “repeatedly raped
in prison.” 

 at 679–80 (reviewing testimony describing
four separate sexual assaults). Another witness, a former
inmate in prison with Andrews, described him as a “little
sheep among wolves, a baby among a bunch of grownups.”

 (internal quotation mark omitted).

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

       it was undisputed that [Andrews] was rarely
       the instigator of violence. On the contrary,
       the evidence showed that he avoided violence
       and appeared to adjust well when the
       structure permitted and that he would
       continue to do so. His small stature made him
       the target of more violent inmates in virtually
       every institution in which he was housed.
       However, when circumstances permitted, he
       tended to hold positions of responsibility. To
       the extent that he was involved in prison
       violence personally, the evidence remains
       consistent that he was the prey rather than the
       predator.

 (quoting referee’s findings).

    Finally, the referee received “[e]xtensive psychiatric
testimony” from several expert witnesses who described
Andrews as suffering from a range of mental disorders,
including post-traumatic stress disorder and organic brain
impairment. 

 at 661–62 (majority opinion) (internal
quotation mark omitted). Those witnesses testified that the
                    ANDREWS V. DAVIS                       15

impact of Andrews’s experiences in Alabama’s correctional
institutions “made his behavior understandable and his
reincarceration predictable.” 

 at 662 (quoting referee’s
findings).

    After hearing evidence about the investigative steps that
were required to uncover this background information, the
referee found none of it “called for any extraordinary efforts
beyond simple persistence.” 

 (internal quotation marks
omitted). The referee categorized the available mitigation
evidence into three “general and partially overlapping”
areas: (1) “the circumstances of [Andrews’s] upbringing”;
(2) “the impact of the correctional facilities in Alabama”;
and (3) “the psychiatric aspects of [Andrews’s] history.” 

According to the referee, counsel “could readily have
learned about [Andrews’s] upbringing from their contact
with his mother” and other family members who were
willing to provide information or to testify. 

 “Several
areas of inquiry were available relating to [Andrews’s]
experiences in the correctional system in Alabama,”
including review of court files of prior convictions, prison
records, and juvenile records. 

 (internal quotation mark
omitted). Standard “[l]egal research would have produced
information concerning lawsuits and prison conditions that
were a matter of public record as to conditions in the penal
system during that period of time.” As for the availability of
Andrews’s mental health history, the “[r]outine appointment
of psychiatric experts” would have provided information to
dictate whether any additional steps were necessary. In re
Andrews, 

 (alteration in original) (quoting
referee’s findings).

    The referee also described the insufficient investigative
steps that counsel actually took. She explained that
Andrews’s counsel “made only ‘limited’ efforts to gather
16                    ANDREWS V. DAVIS

penalty-phase evidence on [Andrews’s] behalf.” 

.
They did not use investigators at the penalty phase, nor did
they have Andrews “examined by a psychologist,
psychiatrist, or any other mental health expert.” 

 The
referee also found that they “were severely impeded” in their
ability to represent Andrews “by their heavy caseloads,
conducting back-to-back capital cases before and after”
Andrews’s trial. 

 at 664 (quoting referee’s findings).

    Andrews’s counsel made two trips to Mobile as part of
their penalty-phase investigation, each lasting a single day.
On their first trip, counsel “spent time searching for records”
relating to Andrews at the courthouse and “driving around []
in taxis” looking for evidence of Andrews’s “good character
and good deeds.” 

. On their second trip, Miller
and Lenoir again reviewed records from the Mobile County
Courthouse. 

 They then interviewed Andrews’s mother
during a layover at the Pensacola airport. 

     At the reference hearing, Miller initially testified that the
first trip to Alabama included three days of investigation of
Andrews’s background. He changed that account after being
confronted with evidence that the lawyers were, in fact, in
New Orleans for most of the trip. In reality, the lawyers
spent a single day in Mobile, flying back to New Orleans that
same day. The dates of the trip coincided with Mardi Gras.

    The second trip to Alabama also began with a stop in
New Orleans. On the next day, counsel flew to Mobile to
“check[] the court records,” then traveled to Pensacola to
interview Andrews’s mother, then flew to Tampa—all in the
same day. After a day in Tampa, the lawyers then spent five
days in Miami. Neither New Orleans, Tampa, nor Miami
have any connection whatsoever to Andrews’s case.
                       ANDREWS V. DAVIS                             17

    The referee found that Miller and Lenoir’s investigation
was limited in part by Andrews’s opposition to his family’s
participation in the penalty phase. In re Andrews, 

. Miller testified that he had concerns about introducing
evidence of Andrews’s incarceration history, as he was “not
generally impressed with prisoners and did not want to trade
‘good acts’ for ‘bad acts.’” 3 

 There were no other
constraints to developing witnesses or a mental health profile
of Andrews. 

    The referee also made findings relating to evidence the
prosecution might have introduced in aggravation. She
concluded that, had Andrews’s counsel attempted to
introduce evidence in mitigation, the prosecution could have
introduced additional facts about two of Andrews’s prior
convictions. 

 at 664–65. With respect to Andrews’s prior
murder conviction, a taxi driver could have testified that
after Andrews and Square escaped from the scene, they
robbed the driver at gunpoint and Andrews fired at least two
shots at the driver from thirty feet away. 

. As for
the robbery, a police officer could have testified that
Andrews held a young woman hostage at the scene,
threatening to shoot her and police officers. 

 The referee
also determined that the prosecution was likely to call its
own mental health experts to rebut Andrews’s. 

.
However, the prosecutor from Andrews’s trial, who had
become a state court judge in the interim, “testified that if
the defense had presented evidence of the Alabama prison
conditions he probably would not have called rebuttal
witnesses to give details about petitioner’s Alabama crimes.”

 (Kennard, J., dissenting). The referee did not,


    3
      Andrews’s lead counsel, Lenoir, died before the referee conducted
the hearing. In re Andrews, 

 n.7. Thus, the referee only
received testimony from Miller.
18                  ANDREWS V. DAVIS

however, credit this testimony. 

 at 665–66 (majority
opinion).

                              2

   After reviewing these findings, the California Supreme
Court turned to Andrews’s claim that Miller and Lenoir
provided ineffective assistance of counsel at the penalty
phase of his trial.

    First, the California Supreme Court held that Andrews’s
counsel had not performed deficiently. See 

 at 667–70.
The court acknowledged the referee’s findings that “simple
persistence” would have yielded much of the mitigation
evidence presented at the reference hearing and that Miller
and Lenoir “could well have made a more thorough
investigation than [they] did.” 

 at 668–69 (alteration in
original). But, in the court’s view, Miller and Lenoir’s
failure to exercise that persistence was excused by
Andrews’s request that his family not be involved and his
failure to volunteer information about the abuse he had
endured. 

.

    Having concluded that Miller and Lenoir’s preliminary
investigation was reasonable, the California Supreme Court
then looked to the reasonableness of the strategy Miller and
Lenoir apparently adopted—portraying Andrews as a
“follower” and comparing Andrews’s sentence to the
sentences imposed in other recent murder cases. 

.
The California Supreme Court concluded this approach was
reasonable. 

 at 669–71. Although noting that the
mitigating evidence Miller and Lenoir failed to present at the
penalty phase “leaves no doubt [Andrews] endured
horrifically demeaning and degrading circumstances” in
Alabama, 

, the court ventured that the evidence
could have backfired because it would have required counsel
                     ANDREWS V. DAVIS                       19

to call a series of inmates as witnesses, “including one death
row inmate, with serious felony records for murder, rape,
and armed robbery,” 

 at 670–71.

    Second, the California Supreme Court concluded that,
“[f]or the same reasons” it found Miller and Lenoir had not
performed deficiently, it also found Andrews had not been
prejudiced by Miller and Lenoir’s performance. 

.
The court then denied Andrews’s habeas petition. 

.

     Two justices of the California Supreme Court dissented,

, including Justice Kennard, who authored the
California Supreme Court’s opinion affirming Andrews’s
conviction and sentence on direct appeal, People v. Andrews,

 (Cal. 1989). After reviewing all the evidence
adduced at the reference hearing, the dissent concluded that
it could not “put confidence in the verdict of a jury that
decided the case without hearing the substantial mitigating
evidence that competent counsel could and should have
presented.” In re Andrews, 

 (Kennard, J.,
dissenting) (internal quotation mark omitted).

                              C

    Following the California Supreme Court’s denial of
Andrews’s state habeas petition, Andrews filed a habeas
petition in federal district court. His amended petition
included thirty-two claims. The district court denied relief
on thirty-one of the thirty-two claims, but granted relief on
Andrews’s penalty-phase ineffective assistance of counsel
claim. The district court also granted a certificate of
appealability for one claim: whether California’s lethal
injection protocol violates the Eighth Amendment.

    Andrews filed a timely appeal, seeking reversal of the
district court’s denial of his challenge to California’s lethal
20                     ANDREWS V. DAVIS

injection protocol in addition to several uncertified claims.
The State cross-appealed the district court’s grant of relief
on Andrews’s ineffective assistance of counsel claim.

    A divided panel of this Court reversed the district court’s
grant of relief, dismissed Andrews’s challenge to the lethal
injection protocol as unripe, and otherwise denied the
petition. Andrews v. Davis, 

 (9th Cir. 2017).

   We ordered the case reheard en banc. Andrews v. Davis,

 (9th Cir. 2018).

                                 II

    We review a district court’s grant or denial of habeas
relief de novo. Sanders v. Cullen, 

 (9th
Cir. 2017).

   The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 

 Stat. 1214,
governs our review of Andrews’s petition. Under AEDPA,
we look to the last reasoned state court decision—here, the
California Supreme Court’s decision—to address the merits
of Andrews’s claims. Wilson v. Sellers, 

 (2018).

    Under AEDPA, we must defer to that state court’s
decision with respect to any claim adjudicated on the merits,
see 

(d), unless the adjudication of the claim
involved an “unreasonable application” of clearly
established federal law as determined by the Supreme Court
of the United States, 

 § 2254(d)(1). 4 A state court decision

     4
      Deference is also not required when a state court’s decision is
“contrary to” clearly established federal law as determined by the
Supreme Court of the United States. 

(d)(1). But, as
explained below, that situation is not present here.
                     ANDREWS V. DAVIS                       21

rests on an “unreasonable application” of federal law where
a state court identifies the correct governing rule, but
unreasonably applies that rule to the facts of the prisoner’s
case. Williams v. Taylor, 

, 407–08 (2000).

    An unreasonable application must be “‘objectively
unreasonable,’ not merely wrong.” White v. Woodall, 

 (2014) (internal quotation marks omitted). It
is not enough that a federal habeas court concludes “in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly.” Lockyer v. Andrade, 

 (2003)
(internal quotation mark omitted). Rather, the decision must
be “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 

.

    Under 

(d)(2), deference to a state court
decision is also not required where the decision is “based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” A state
court’s factual findings are “presumed to be correct,” 

§ 2254(e)(1), and the same standard of unreasonableness
under § 2254(d)(1) applies under § 2254(d)(2), see Rice v.
Collins, 

 (2006). Unreasonable
determinations of material facts can occur “where the state
court[] plainly misapprehend[s] or misstate[s] the record in
making [its] findings” or where the state court “has before it,
yet apparently ignores, evidence that supports petitioner’s
claim.” Taylor v. Maddox, 

 (9th Cir.
2004), cert. denied, 

 (2004), overruled on
other grounds by Murray v. Schriro, 

, 999–
1000 (9th Cir. 2014).
22                  ANDREWS V. DAVIS

    Strickland v. Washington and its progeny constitute the
clearly established federal law governing claims of
ineffective assistance of counsel. Cullen v. Pinholster, 

 (2011) (citing Strickland, 

).
Strickland recognizes that, under the Sixth Amendment, the
accused has a constitutional right to the effective assistance
of counsel at the guilt and penalty phases of a capital trial.
466 U.S. at 684–87. To establish ineffective assistance
under Strickland, a prisoner must demonstrate that:
(1) counsel’s “performance was deficient”; and (2) counsel’s
“deficient performance prejudiced the defense.” 

.
The “ultimate focus” of the Strickland standard is “the
fundamental fairness of the proceeding whose result is being
challenged.” 

.

     To establish deficient performance, a petitioner must
show that “counsel’s representation fell below an objective
standard of reasonableness.” 

. “A court
considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional
assistance.” Richter, 

 (quoting Strickland, 44
U.S. at 689). With respect to prejudice, a petitioner must
demonstrate that, “but for counsel’s unprofessional errors,”
there is a “reasonable probability” that the “result of the
proceeding would have been different.” Strickland, 

. In the context of the penalty phase of a capital case,
it is enough to show “a reasonable probability that at least
one juror” would have recommended a sentence of life
instead of death. Wiggins v. Smith, 

(2003). The likelihood of that result must be “substantial,
not just conceivable.” Richter, 

.

   For purposes of our review, the “only question that
matters” is whether the state court’s decision involved an
                        ANDREWS V. DAVIS                            23

unreasonable application of Strickland’s principles. See
Andrade, 

. In any ineffectiveness case,
Strickland sets a high bar for relief. Richter, 

.
And, under AEDPA’s deferential standard, that bar is doubly
difficult to clear. 

 5

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

                                  III

     With regard to Strickland’s performance prong, the
California Supreme Court unreasonably applied clearly
established federal law in concluding Andrews received
constitutionally adequate counsel at the penalty phase of his
trial.

    With their client’s life in the balance, Miller and Lenoir
performed almost no investigation at the penalty phase.
Compounding that error, they introduced almost no
mitigating evidence during the penalty phase, despite the
ready availability of “substantial and compelling” evidence.
In re Andrews, 

 (Kennard, J., dissenting).

    The Supreme Court 6 has recognized that reasonable
assistance will take a variety of forms. See Strickland, 466
U.S. at 688–89. Even so, it has never held that counsel may
forgo a thorough background investigation and wholly fail
to present evidence in mitigation where readily available,

    5
      Though our dissenting colleague repeatedly accuses us of engaging
in a de novo review of the California Supreme Court’s decision, we
understand the appropriate standard of review and apply it here.
     6
       All references to “the Supreme Court” throughout this opinion are
to the United States Supreme Court, not the California Supreme Court.
24                   ANDREWS V. DAVIS

compelling, and non-cumulative mitigating evidence exists.
Reading Strickland and its progeny to support such a
conclusion, as the California Supreme Court did here, was
objectively unreasonable.

                              A

    Clearly established federal law required Miller and
Lenoir to undertake a “reasonable investigation[]” in
preparation for the penalty phase. 

. While the
Court has made clear that the nature and scope of a given
investigation will vary based on the circumstances of the
case, 

 at 688–89, the “proper measure” of the adequacy of
an attorney’s investigation is “reasonableness under
prevailing professional norms,” 

. “American Bar
Association [(ABA)] standards and the like” are evidence of
those norms and “guides to determining what is
reasonable[.]” Id.; see also Rompilla v. Beard, 

 (2005).

    According to the ABA standards in effect at the time of
Andrews’s trial, defense counsel had a duty to conduct an
investigation designed to “explore all avenues leading to
facts relevant to the merits of the case and the penalty in the
event of conviction.” Standards for Criminal Justice § 4-4.1
(Am. Bar Ass’n 1980) (emphasis added). These standards
recognize that “[i]nvestigation is essential” to fulfilling
counsel’s “substantial and important” duty to raise
mitigating factors at sentencing. Id.; see also Wiggins, 539
U.S. at 524–25 (considering ABA standards).

   No fair-minded jurist would conclude that Miller and
Lenoir conducted the requisite “thorough investigation” of
Andrews’s background at the penalty phase. Williams, 

.    Indeed, Andrews’s counsel conducted
                     ANDREWS V. DAVIS                       25

“virtually no penalty phase investigation.” In re Andrews,

 (Kennard, J., dissenting).

    What little investigation did occur consisted of just three
elements: (1) reviewing files at the courthouse in Mobile;
(2) speaking with Andrews’s mother during a layover in an
airport; and (3) driving around Mobile. See 

(majority opinion). Although Miller and Lenoir hired
investigators to work on the guilt phase, neither investigator
did any penalty-phase work. 

 Nor were they asked to.
Miller and Lenoir failed to conduct “standard legal research”
concerning the Alabama institutions where Andrews was
confined as a child. 

. And Miller and Lenoir failed
to take the “[r]outine” step of having Andrews examined by
a psychologist, psychiatrist, or any other mental health
professional. 

 at 662–63 (alteration in original). As noted
above, the referee found that Miller and Lenoir failed to
exercise “simple persistence” and failed to use “standard
investigative techniques” in preparing for the penalty phase.

 (internal quotation marks omitted).

    Each of these steps should have been a standard
component of counsel’s penalty-phase investigation. And
even the most basic of investigations would have uncovered
evidence of the abuse Andrews suffered. See Williams, 529
U.S. at 395–96. No fair-minded jurist would conclude that
Miller and Lenoir’s penalty-phase investigation—one that
lacked “simple persistence,” “standard investigative
techniques,” “standard legal research,” and the “[r]outine”
appointment of expert assistance, In re Andrews, 

 (alteration in original) (internal quotation marks
omitted)—was reasonable. See Strickland, 466 U.S. at 690–
92; see also Williams, 

; Wiggins, 

; Porter v. McCollum, 

 (2009) (per
curiam); Rompilla, 

.
26                   ANDREWS V. DAVIS

    The California Supreme Court unreasonably applied the
Supreme Court’s decision in Williams to excuse Miller and
Lenoir’s failure to undertake a reasonable background
investigation. See In re Andrews, 52 P.3d at 674–75. In
Williams, counsel began preparing for sentencing one week
before trial.     

.        Due to counsel’s
misunderstanding of state law concerning access to juvenile
records, counsel failed to fully investigate his client’s early
life and background. 

 Had counsel performed the
requisite investigation, it would have disclosed a wealth of
potentially mitigating evidence—including evidence of
Williams’s “nightmarish” childhood, one “filled with abuse
and privation.” 

. Counsel also failed to
investigate other avenues for mitigation, such as evidence of
Williams’s intellectual disability and his good behavior
while incarcerated. 

. The Supreme Court held that
the failure to uncover this information “clearly
demonstrate[d] that trial counsel did not fulfill their
obligation to conduct a thorough investigation of the
defendant’s background.” 

 Therefore, the Supreme Court
concluded, the state court was unreasonable to conclude that
Williams’s counsel performed adequately under Strickland.

 397–98.

    In terms of Miller and Lenoir’s investigation, the most
substantial distinction between the facts of this case and
those of Williams is the reason counsel failed to uncover
information about their clients’ backgrounds. In Williams,
counsel misunderstood the law. 

. Here, no legal
misunderstanding stood in the way; Miller and Lenoir
simply failed to exercise “simple persistence,” failed to use
“standard investigatory techniques,” and failed to obtain the
“[r]outine” appointment of mental health experts. In re
Andrews, 

 (alteration in original). Any fair-
minded jurist would agree that counsel’s failures in Williams
                    ANDREWS V. DAVIS                       27

and here both reflect a failure to adhere to reasonable
professional standards. No reasonable jurist would conclude
that one is indicative of deficient performance and the other
is not.

                              B

    Rather than dispute the referee’s findings, the California
Supreme Court instead unreasonably and remarkably
excused Miller and Lenoir’s failure to perform an adequate
penalty-phase     investigation.         Despite    expressly
acknowledging that Miller and Lenoir could have performed
a more thorough investigation at the penalty phase, 

, the court nonetheless determined that Miller and
Lenoir’s decision to curtail their investigation was
reasonable because: (1) Andrews did not want his family
involved; (2) Andrews did not tell his counsel about the
abuse he suffered in the past; and (3) the Mt. Meigs evidence
would have required testimony from inmates, see 

 at 668–
69.

    Each of these justifications turns on an unreasonable
determination of the record before the California Supreme
Court. See 

(d)(2). These factual
determinations are not just incorrect; they are directly
contradicted by other evidence in the record. See Taylor,

.

   (1) Andrews’s refusal to involve his family.

   The California Supreme Court unreasonably excused
counsel’s failure to undertake a thorough penalty-phase
investigation because Andrews asked that his family not be
involved. See In re Andrews, 

.
28                   ANDREWS V. DAVIS

    This conclusion by the court is unreasonable for a simple
reason: As the referee concluded, counsel did not need
Andrews’s family to uncover evidence of the abuse he
suffered in Alabama. See 

. As the referee found,
evidence of the conditions at Mt. Meigs either “could have
been developed by obtaining prison records and contacting
inmates referenced in those records,” or by conducting
“standard legal research of public records relating to
lawsuits involving th[e] institution.” 

 (emphasis
added). Other than not involving his family, Andrews
imposed no limitation on counsel’s investigation, and the
referee found no obstacles to obtaining witnesses who were
not members of Andrews’s family. Id.; see 

(Kennard, J., dissenting).

    Moreover, notwithstanding Andrews’s request, counsel
interviewed Andrews’s mother. 

 (majority
opinion). She knew about Andrews’s history at Mt. Meigs
and could have provided insight about the effect it had on
him. 

 But trial counsel failed to ask any questions that
would have elicited this information. 

     (2) Andrews’s failure to tell counsel about his past.

   The California Supreme Court also unreasonably
excused Miller and Lenoir’s limited penalty-phase
investigation based on Andrews’s failure to affirmatively
volunteer information. See In re Andrews, 

.

    Andrews never told his attorneys about his past—nor
specifically about his time at Mt. Meigs. But nothing
suggests that counsel ever asked Andrews basic questions
designed to elicit their client’s life history. See 

(Kennard, J., dissenting) (“[Andrews] did not withhold that
information. His attorneys never raised the subject.”).
Regardless, as the referee explicitly found: “[A]ll of the
                     ANDREWS V. DAVIS                       29

information that was presented [at the reference hearing]
could have been developed through outside sources in the
absence of any cooperation from [Andrews].” 

(majority opinion) (alteration added) (internal quotation
mark omitted). The California Supreme Court did not
dispute this finding; it simply ignored it. See 

.

    The California Supreme Court’s reliance on Strickland
to excuse Miller and Lenoir’s failure to investigate their
client’s life history, see 

 was itself unreasonable.
Strickland recognizes that the reasonableness of counsel’s
investigation can be “influenced by the defendant’s own
statements or actions.” 

. That is, counsel can
reasonably make judgments based on what a defendant
actually says. 

 (defining reasonableness of investigation
based on “what the defendant has said” and what “a
defendant has given counsel reason to believe”). But neither
Strickland nor its progeny suggest that a client’s failure to
affirmatively volunteer information about his past relieves
counsel of the independent duty to investigate it—especially
when the record suggests counsel never bothered to ask. See
In re Andrews, 

 (Kennard, J., dissenting). In
fact, later Supreme Court decisions have explained that the
opposite is true. A client may be “fatalistic or uncooperative,
but that does not obviate the need for defense counsel to
conduct some sort of mitigation investigation.” Porter, 

.

    To read Strickland as requiring a defendant to, first,
know what mitigating evidence is, and, second, affirmatively
volunteer theories of mitigation, is objectively unreasonable.
Indeed, under clearly established federal law at the time, the
obligation to develop legal strategy was, and is, the
responsibility of counsel. See Jones v. Barnes, 

 (1983). The California Supreme Court’s apparent
30                  ANDREWS V. DAVIS

assignment of that responsibility to Andrews was objectively
unreasonable.

     (3) Reliance on the testimony of inmates.

    The California Supreme Court also unreasonably
concluded that counsel were justified in curtailing their
investigation into Andrews’s background because evidence
of Andrews’s treatment in the Alabama correctional system
would have required the use of testimony from inmates. See
In re Andrews, 52 P.3d. at 668–69.

    Again, this conclusion was directly contradicted by the
record. At the reference hearing, “a federal district judge, a
priest, a college dean, a clinical psychologist, a longtime
prison doctor, and the regional director for the Florida
Bureau of Detention, all . . . gave powerfully effective
testimony about the shocking conditions” Andrews endured
at Mt. Meigs and other Alabama institutions. Id. at 681
(Kennard, J., dissenting). The California Supreme Court’s
decision to ignore the compelling testimony these witnesses
could have provided was objectively unreasonable. See 

(d)(2).

    Taken as a whole, the California Supreme Court’s
reliance on a series of unsupported factual conclusions to
excuse counsel’s unreasonably limited investigation
amounts to the type of “‘post hoc rationalization’ for
counsel’s decisionmaking” the Supreme Court has cautioned
against. Richter, 

 (quoting Wiggins, 539 U.S.
at 526–27). Each of the California Supreme Court’s factual
determinations, individually and collectively, further
“highlights the unreasonableness of the state court’s
decision.” Wiggins, 

.
                    ANDREWS V. DAVIS                      31

                             C

    Having excused Miller and Lenoir’s investigation, the
California Supreme Court determined that Miller and Lenoir
chose their penalty-phase strategy “[i]nstead of a lengthy
presentation of a broad range of witnesses” documenting
Andrews’s background. In re Andrews, 

(emphasis added). But choosing a strategy implies the
weighing of competing approaches. Miller and Lenoir
simply did not know about Andrews’s background, so they
could not have intelligently chosen one strategy over
another. See 

 at 676–77 (Kennard, J., dissenting). Here,
counsel failed at the outset to investigate thoroughly,
rendering later penalty-phase decisions a product of
“inattention, not reasoned strategic judgment.” Wiggins,

. Only by unreasonably applying Strickland
and its progeny did the California Supreme Court conclude
counsel’s performance was adequate.

    In Strickland, the Supreme Court held it was reasonable
for counsel to fail to introduce evidence that would “barely
have altered the sentencing profile” and would have opened
the door to potentially damaging aggravating evidence. 

. So too in Darden v. Wainwright, counsel’s
decision to pursue an alternate strategy at sentencing was
reasonable because evidence regarding defendant’s
background could have opened the door to his prior
convictions, which had not been admitted in evidence. See

 (1986).

    That was not the situation confronted by Andrews’s
counsel. First, the evidence of Andrews’s “nightmarish
childhood” would have altered Andrews’s sentencing profile
substantially. As the Supreme Court has recognized,
omission of this type of critical mitigating evidence can
prejudice a capital defendant. See Williams, 

.
32                      ANDREWS V. DAVIS

Second, the jury already knew about Andrews’s prior
crimes. When a defendant’s prior criminal history is already
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, 

 (finding counsel
deficient 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). 7
No reasonable jurist would conclude otherwise. 8

   The California Supreme Court relied on the Supreme
Court’s decision in Burger v. Kemp, 

 (1987), to
conclude that counsel’s penalty-phase strategy—portraying
Andrews as a “follower” and arguing that others, including
Andrews’s co-defendant Sanders, had received lighter

     7
      Although the Supreme Court decided Rompilla after the California
Supreme Court denied Andrews’s habeas petition, Rompilla is still
relevant to assessing whether the court unreasonably applied Strickland
for purposes of AEDPA deference. See Wiggins, 

(approving reliance on Supreme Court opinions issued after state court’s
decisions where the merits are governed by Strickland). Rompilla is
particularly instructive in light of its application of AEDPA deference to
the deficient-performance analysis. See 

.
     8
      The fact that the jury did not hear details of Andrews’s prior
offenses has no bearing on the reasonableness of counsel’s decision to
forgo a case in mitigation. Had counsel’s choice “foreclosed the
introduction” of this evidence, as the California Supreme Court found,
In re Andrews, 

, that of course could have affected our
assessment of counsel’s strategy. But the California Supreme Court
made clear that the evidence of Andrews’s prior crimes would have been
admissible to rebut the defense case which was presented. 

.
The happenstance that the aggravating evidence was not presented is
therefore not attributable to counsel’s strategy and, because we assess a
lawyer’s choices “from counsel’s perspective at the time,” Strickland,

, it does not factor into our deficiency analysis.
                    ANDREWS V. DAVIS                       33

sentences—was a reasonable strategy. In re Andrews, 

.

    But “[t]his case is not at all like Burger.” 

(Kennard, J. dissenting). In Burger, the penalty-phase
strategy that counsel ultimately adopted—attempting to
minimize culpability by portraying his client as a follower—
was reasonable because it was supported by the record
before the jury. See 

 (noting evidence at trial
showed Burger’s co-defendant was primarily responsible for
the crime).

     Here, portraying Andrews as a follower was “a
disastrous strategy, one no reasonably competent attorney
would have used.” In re Andrews, 

 (Kennard,
J., dissenting). With regard to his crimes of conviction, “the
only evidence before the jury was that [Andrews] was the
instigator rather than a follower.” 

 Moreover, because the
evidence showed Andrews was the instigator and “Sanders
was the follower,” the “jurors were not likely to be troubled
by Sanders’s lighter sentence.” 

 It is objectively
unreasonable to conclude, as the California Supreme Court
did, that a penalty-phase strategy is reasonable when it is
directly contradicted by the evidence in the record.

    Further, in Burger, defense counsel performed a
reasonable initial mitigation investigation, speaking to a
family member, a friend, and a psychologist to learn about
his client’s background. See 483 U.S. at 790–91. By
contrast, counsel’s background investigation here only
consisted of speaking to Andrews’s mother, pulling court
files, and “driving around” Mobile looking for mitigating
evidence. In re Andrews, 

. Counsel failed to
speak to any other friends or family, failed to conduct
“standard legal research,” and failed to take the “[r]outine”
34                   ANDREWS V. DAVIS

step of having Andrews evaluated by a mental health
professional. 

 (alteration in original).

    The California Supreme Court observed that the
“defendant in Burger endured a worse childhood” than
Andrews. 

. But this conclusion, too, is
unreasonable. While the defendant in Burger had an
“exceptionally unhappy and unstable childhood,” 

, nothing suggests Burger endured anything
comparable to—let alone worse than—the violent beatings
and degrading physical abuse Andrews suffered as a child at
Mt. Meigs. Thus, contrary to the California Supreme
Court’s conclusion, Burger does not present “comparable
facts” to Andrews’s case. In re Andrews, 52 P.3d. at 673.

    The California Supreme Court also unreasonably applied
Bell v. Cone, 

 (2002), to support its conclusion
that Andrews’s counsel performed adequately. Though the
court correctly noted that counsel in Cone “presented no
penalty phase evidence and waived closing argument,” In re
Andrews, 

 (citing Cone, 535 U.S. at 699–702),
the court ignored the fact that, in Cone, defense counsel
actually introduced substantial mitigating evidence at the
guilt phase of the trial, see Cone, 

. “Because
the defense’s theory at the guilt phase was not guilty by
reason of insanity, [Cone’s] counsel was able to put before
the jury extensive testimony about what he believed to be the
most compelling mitigating evidence in the case . . . .” 

(emphasis added). This included testimony from Cone’s
mother about her son and the changes Cone underwent after
serving in the Vietnam War, among other humanizing
testimony. 

.

    Thus, the question in Cone was whether counsel was
deficient for failing to re-call those witnesses at the penalty
phase. 

 at 699–700. Because Cone’s jury heard this
                    ANDREWS V. DAVIS                      35

mitigating evidence at the guilt phase and was instructed to
consider it at sentencing, the Supreme Court determined
counsel’s decision not to reintroduce the mitigating evidence
was reasonable. 

 But Cone does not support the blanket
proposition, as the California Supreme Court apparently
concluded, that counsel can altogether forgo the introduction
of substantial mitigating evidence where such evidence in
fact exists. See In re Andrews, 

. That
interpretation of Cone is objectively unreasonable.

    The California Supreme Court also 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 

(referring to counsel’s remark that Andrews’s childhood
neighborhood was “comparable to his own”). 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 reliance on Cone, while
simultaneously ignoring the fact that Andrews’s youth
included his experience at Mt. Meigs, was objectively
unreasonable.

    If any doubt remained about the unreasonableness of the
California Supreme Court’s application of Strickland’s
deficiency prong, the court’s repeated, approving reliance on
the Fourth Circuit’s decision in Wiggins—a decision the
Supreme Court subsequently reversed—puts those doubts to
rest. See 

, 676 (citing Wiggins v.
36                      ANDREWS V. DAVIS

Corcoran, 

 (4th Cir. 2002), rev’d sub nom.
Wiggins v. Smith, 

 (2003)). 9

    In Wiggins, counsel’s investigation was limited to three
sources: (1) psychological testing; (2) a presentence report;
(3) and records from the Baltimore City Department of
Social Services. 

. Although Wiggins’s
attorneys had some cursory understanding of their client’s
background, their investigation failed to fully uncover
evidence of Wiggins’s “harsh childhood,” including
physical and sexual abuse as a child, and “sub-average
mental capacity.” Wiggins v. Corcoran, 

. Nevertheless, applying AEDPA deference, the Fourth
Circuit determined the Maryland state court’s application of
Strickland’s deficiency prong was not unreasonable
notwithstanding counsel’s failure to uncover and present
reasonably available and compelling mitigating evidence.
See 

 at 639–43. The Supreme Court reversed. Wiggins,

.

     Just as it had in Williams, the Court in Wiggins
recognized that counsel “abandon[ed] their investigation at
an unreasonable juncture,” thereby failing to conduct the
requisite, thorough background investigation Strickland
generally requires. 

 at 527–28. That failure, in turn, made
it “impossible” to provide a “fully informed decision with
respect to sentencing strategy.” 

 Even under AEDPA’s
deferential standard, the Supreme Court held that the
Maryland state court had unreasonably applied Strickland by

     9
      Although the Supreme Court’s decision in Wiggins was issued
after the California Supreme Court decided Andrews’s case, the
Supreme Court “made no new law” in resolving Wiggins’s federal
habeas petition. Wiggins, 

 (describing similar situation
in Williams). Wiggins is thus “illustrative of the proper application” of
the Strickland standard in a federal habeas case under AEDPA—an
application the Fourth Circuit performed improperly. 

                     ANDREWS V. DAVIS                       37

“deferring to counsel’s decision not to pursue a mitigation
case despite their unreasonable investigation.” 

.

    That the California Supreme Court saw the Fourth
Circuit’s decision—one subsequently reversed by the
Supreme Court for endorsing an improper application of
AEDPA to a Strickland claim—as providing substantial
support for its analysis should settle any doubt about the
reasonableness of the California Supreme Court’s own
application of the Strickland standard. Like the Maryland
state court and the Fourth Circuit, the California Supreme
Court unreasonably applied Strickland to excuse counsel’s
failures at the penalty phase.

    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 evidence
of compelling mitigating value. Here, the only reasonable
interpretation of Supreme Court precedent and the facts of
this case lead to the following conclusions: (1) that Miller
and Lenoir failed in their duty to undertake a reasonable
investigation at the penalty phase of Andrews’s trial; (2) that
Miller and Lenoir’s choices cannot be rationalized as
“strategic” or “tactical;” and (3) that any reasonably
competent attorney would have discovered and introduced
the substantial and compelling mitigating evidence that
existed. No fair-minded jurist would conclude otherwise.

                              IV

    Turning to Strickland’s prejudice prong, the California
Supreme Court concluded that Andrews suffered no
prejudice from the omission of the substantial and
compelling mitigating evidence that Miller and Lenoir could
have introduced, but did not. That conclusion, too, turns on
38                       ANDREWS V. DAVIS

an objectively unreasonable application of Strickland and its
progeny.

    In fact, the California Supreme Court hardly engaged in
the reweighing of evidence that Strickland’s prejudice
analysis requires. The totality of the California Supreme
Court’s prejudice analysis consisted of the following
assertion:

          For the same reasons [Andrews’s counsel
          were not deficient], 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.

In re Andrews, 

 (alterations in original)
(citation omitted). With the exception of a later aside about
the jury’s apparent unwillingness to entertain a life sentence,

 at 675–76, 10 the court said nothing more about prejudice.

    Strickland’s two prongs serve separate purposes. The
deficiency analysis looks to counsel’s adherence to
reasonable professional standards, see 466 U.S. at 689–91,

     10
       The California Supreme Court noted: “[T]he record here contains
no indication the jury was inclined to sentence petitioner to life
imprisonment and might have been persuaded by additional or alternate
mitigation evidence.” In re Andrews, 52 P.3d at 675–76. This approach,
however, is flatly contradicted by Strickland itself, which insists that the
prejudice determination should be unaffected by “evidence about the
[jury’s] actual process of decision.” 

.
                     ANDREWS V. DAVIS                       39

while prejudice looks to the weight of the available evidence
and its effect on the case, see 

 at 693–95. Though the
deficiency analysis may shed light on the prejudice analysis,
it is improper to simply conflate the two, as the California
Supreme Court largely did here. See Sears v. Upton, 

, 954 n.10, 955 (2010) (per curiam). Our dissenting
colleague’s insistence that the California Supreme Court
“rigorously” and “carefully” applied Strickland’s prejudice
analysis is especially odd given that the court dispensed with
its analysis in two sentences. See Dissent at 60, 76.

    Nevertheless, we assume the California Supreme Court’s
failure to actually engage in the prejudice inquiry, alone, is
insufficient to justify granting the writ. AEDPA demands
that “state-court decisions be given the benefit of the doubt,”
Cullen v. Pinholster, 

 (2011) (internal
quotation marks omitted), and a state court’s decision need
not cite or even be aware of controlling Supreme Court
precedent, so long as it does not contravene those
precedents, Early v. Packer, 

 (2002) (per
curiam).

    Even so, giving the California Supreme Court’s decision
all the deference it is due along with every benefit of the
doubt, only an unreasonable application of Strickland’s
principles could lead to the conclusion that Andrews was not
prejudiced by counsel’s deficient representation at the
penalty phase.

   The jurors who sentenced Andrews to death did so
“knowing hardly anything about him.” Porter, 

. Had the jury heard that Andrews—at an “extremely
vulnerable and sensitive age”—was subjected to brutal,
inhumane, and degrading abuse by his state custodians at a
segregated “penal colony” for African American children in
Alabama in the 1960s, In re Andrews, 

,
40                   ANDREWS V. DAVIS

there is a reasonable probability that at least one juror would
have been swayed to exercise mercy and spare Andrews’s
life, see Wiggins, 

.

    Without having heard this substantial and compelling
mitigating evidence, the jury could not fairly gauge
Andrews’s moral culpability at sentencing. See Porter, 

. No fair-minded jurist would disagree.

                               A

    Under clearly established federal law, consideration of
the defendant’s life history is a “constitutionally
indispensable part of the process of inflicting the penalty of
death.” Eddings v. Oklahoma, 

 (1982)
(internal quotation marks omitted).

    Though mitigating life history evidence does not excuse
heinous crimes, it places a defendant’s crimes in context,
allowing jurors to impose a sentence reflecting a “reasoned
moral response to the defendant’s background, character,
and crime.” Penry v. Lynaugh, 

 (1989)
(internal quotation marks omitted), abrogated on other
grounds by Atkins v. Virginia, 

 (2002).

    Evidence of abuse inflicted as a child is especially
mitigating, and its omission is thus particularly prejudicial.
“[Y]outh is more than a chronological fact. It is a time and
condition of life” that indelibly shapes a person. Eddings,

. A jury’s consideration of abuse and
disadvantage suffered during this formative time is
especially critical, given our society’s “long held” belief that
“defendants who commit criminal acts that are attributable
to a disadvantaged background . . . may be less culpable than
defendants who have no such excuse.” Boyde v. California,
                    ANDREWS V. DAVIS                      41

 (1990) (emphasis omitted) (internal
quotation marks omitted).

    At sentencing, Miller and Lenoir presented almost no
evidence in mitigation. “The only evidence before the jury”
was that Andrews “had killed three people” and that he “had
four prior felony convictions.” In re Andrews, 

 (Kennard, J., dissenting). The jury knew nothing about
Andrews’s background—not the “inhumane conditions” he
endured as a child at Mt. Meigs; not the “abysmal”
conditions in Alabama’s correctional system; not the views
of mental health experts, that these degrading experiences in
state institutions rendered Andrews’s later criminal behavior
understandable and predictable. 

    Indeed, this type of life history evidence—a background
of severe abuse, neglect, and disadvantage—is important to
a sentencer’s accurate determination of the defendant’s
moral culpability. See Wiggins, 539 U.S. at 534–35; Porter,

. Under clearly established law at the time,
the degrading abuse Andrews suffered at Mt. Meigs is
precisely the sort of “troubled history” the Supreme Court
has recognized as relevant in aiding the jury’s evaluation of
the defendant. Wiggins, 

 (citing Penry, 

).

     The California Supreme Court—to the extent it engaged
with any governing Supreme Court precedent in conducting
its prejudice analysis—did so in an objectively unreasonable
way. For example, in Williams, the Supreme Court held
there was a reasonable probability of a different result at
sentencing if counsel had presented evidence of defendant’s
“nightmarish childhood” or his intellectual disability. See

. But the California Supreme Court’s
conclusion that Williams was “plainly distinguishable” from
Andrews’s case turned on at least two objectively
42                      ANDREWS V. DAVIS

unreasonable analytical flaws. In re Andrews, 

.

    First, the California Supreme Court failed to
acknowledge the substantial aggravating evidence that
existed in Williams. The court suggested the aggravating
facts of Andrews’s “brutal triple murder” paled in
comparison to Williams, where “Williams turned himself in,
alert[ed] police to a crime they otherwise would never have
discovered, express[ed] remorse for his actions, and
cooperat[ed] with the police after that.” 

(alterations in original) (quoting Williams, 

).

    But distinguishing the two cases—by comparing the
aggravating facts of Andrews’s case to mitigating facts in
Williams—is objectively unreasonable. Indeed, comparison
of the actual aggravating facts in Williams shows that both
cases involved severe aggravation. In Williams, the jury
heard evidence that, in the months after the capital murder,
“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.” 

 (Rehnquist, C.J., concurring in part and
dissenting in part) (internal quotation marks omitted). 11 One
of Williams’s elderly victims was left in a vegetative state.

 (majority opinion) (internal quotation marks
omitted). And two expert witnesses testified for the
prosecution at sentencing “that there was a ‘high probability’
that Williams would pose a serious continuing threat to
society.” 

 at 368–69. Although the aggravating facts in
this case are undeniably severe, they are largely similar to

     11
       We cite to Chief Justice Rehnquist’s concurring opinion in
Williams for its vivid recitation of facts—not, as the dissent complains,
see Dissent at 88 n.9, for conclusions of law.
                        ANDREWS V. DAVIS                            43

those in Williams, not “plainly distinguishable,” as the
California Supreme Court unreasonably concluded. In re
Andrews, 

.

     The California Supreme Court also unreasonably
compared the mitigating facts of Williams to Andrews’s
case. According to the court, Williams had an “extremely
harsh family life, qualitatively worse than [Andrews’s]”
family life. 

 The court was correct that Williams’ family
life was far more abusive than Andrews’s was. However,
the court again ignored that Andrews’s childhood—in
particular, the years he spent at Mt. Meigs—was marked by
“inhumane” treatment and abuse, at least equal in magnitude
to that suffered by Williams. 12 

 (Kennard, J.,
dissenting). Additionally, the court ignored the fact that,
unlike in this case, Williams’s counsel actually presented
mitigating evidence, including testimony from Williams’s
mother, two neighbors, and a psychiatrist. Williams, 

.

    Under Williams, the California Supreme Court’s
prejudice analysis was unreasonable. Here, 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—is significant, just as in
Williams. And, as in Williams, the undiscovered and
unadmitted mitigating evidence in Andrews’s case includes
severe and sustained physical, sexual, and psychological
abuse during childhood—precisely the type of evidence the

    12
       The dissent emphasizes that Williams’s early childhood was more
difficult than Andrews’s, Dissent at 86—a point we acknowledge. That
concession, however, does not alter the fact that both Williams and
Andrews endured substantial abuse as children. It is that fact—abuse
during the “formative years of childhood and adolescence,” Eddings, 455
U.S. at 115–16—that matters for mitigation purposes, not the precise age
when the abuse occurred.
44                     ANDREWS V. DAVIS

Supreme Court has recognized is essential to a jury’s
informed appraisal of moral culpability at sentencing. See
Williams, 529 U.S. at 395–98; see also 

 at 415–16
(O’Connor, J., concurring).

    Although decided after the California Supreme Court
rendered its decision in Andrews, the Supreme Court’s
decision     in    Porter    further    demonstrates      the
unreasonableness of the California Supreme Court’s
conclusion. 13 There, 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 or
that he was a decorated Korean War veteran suffering from
post-traumatic stress disorder. See Porter, 558 U.S. at 40–
44. Even under AEDPA deference, the Supreme Court
concluded that the state court’s determination—that Porter
had not been prejudiced at sentencing by the omission of this
key life-history evidence—was unreasonable. See id. at 42.
The Supreme Court held that, without considering critical
mitigating evidence of the defendant’s background, the
sentencer was unable to accurately gauge the defendant’s
moral culpability. Id. at 41, 44. Habeas relief was thus
warranted because confidence in the sentence had been
undermined. Id. at 44; see also Rompilla, 

.

    As in Williams, the Supreme Court in Porter affirmed
that a strong case in aggravation does not preclude a finding
that a state court was unreasonable in denying habeas relief.
Porter stood convicted of two murders and faced

    13
       Porter, like Rompilla, was decided after the California Supreme
Court denied Andrews’s habeas petition. But for the reasons described
above, see supra note 7, the decision is nonetheless instructive,
especially in light of Porter’s application of AEDPA deference to the
prejudice question. 

.
                        ANDREWS V. DAVIS                             45

considerable evidence of premeditation, but the Supreme
Court nonetheless held the state court’s application of
Strickland was objectively unreasonable. Porter, 

. 14

   Thus, in Porter and in Williams, there was simply “too
much mitigating evidence that was not presented to now be
ignored.” 

 (internal quotation marks omitted). The
same is true here.

    The California Supreme Court’s conclusion to the
contrary—that Andrews was not prejudiced by the omission
of substantial and compelling mitigation evidence at
sentencing—was objectively unreasonable.

                                   B

    Had Miller and Lenoir performed competently, the
evidence counsel could have presented to the jury in
mitigation—particularly the evidence of Andrews’s abusive
and degrading treatment at Mt. Meigs—was “substantial and
compelling.” In re Andrews, 

 (Kennard, J.,
dissenting).

    Any reasonably competent attorney would have
presented the Mt. Meigs evidence to the jury. Mt. Meigs was
a “slave camp for children.” 

 (emphasis added)
(internal quotation marks omitted). There, at an “extremely
vulnerable and sensitive age,” Andrews was subjected to
“appalling” treatment, including “beatings, brutality,
inadequate conditions and sexual predators.” 

 at 660–62
(majority opinion). As the California Supreme Court
    14
       The dissent repeatedly attempts to paint the crimes at issue in
Porter as crimes of passion. Dissent at 89. In doing so, it overlooks the
jury’s finding that Porter’s two murders were “committed in a cold,
calculated, and premeditated manner.” 

.
46                     ANDREWS V. DAVIS

acknowledged, all the available evidence leaves “no doubt”
that, as a child, Andrews “endured horrifically demeaning
and degrading circumstances.” Id. at 670.

    Other mitigating evidence, though it did not rise to the
level of the Mt. Meigs evidence, nonetheless offered
additional mitigating value. Andrews’s later conditions of
confinement were “abysmal,” and witnesses testified that
Andrews was “personally subjected to sexual assaults” in
these institutions. Id. at 661 (internal quotation marks
omitted). Mental health experts could have provided
testimony explaining the relationship between the degrading
abuse suffered by Andrews in the state institutions and the
crimes he ultimately committed. Id. at 661–62. And
evidence of Andrews’s family background and the poor,
segregated circumstances of his youth could have helped
jurors understand the factors that might have contributed to
Andrews’s institutionalization at a young age. Id. at 660. 15

    Every jurist to review the facts of this case has
recognized the extraordinary nature of the mitigating
evidence that Andrews could have presented. The referee
described the mitigation evidence as “compelling.” Id. at
662. The California Supreme Court majority described the
conditions Andrews was subjected to in Alabama as
“horrifically demeaning and degrading.” Id. at 670. The two
dissenting justices described the mitigating evidence as
“substantial and compelling.” Id. at 680 (Kennard, J.,
dissenting). And the federal district court likewise observed
that the evidence of “the horrendous conditions at Mt.
Meigs, the abysmal conditions in the Alabama prisons, and
the violence and sexual privations inflicted upon” Andrews

     15
      Contrary to the dissent’s suggestion, see Dissent at 81 n.6, we
need not and do not rely on Andrews’s argument that the jury would have
viewed his behavior in prison as a mitigating factor.
                     ANDREWS V. DAVIS                       47

was “compelling.” Andrews v. Wong, No. 02-CV-8969-R,
slip. op. at 31 (C.D. Cal. July 27, 2009) (order granting in
part petition for writ of habeas corpus). We agree, and we
hold that the California Supreme Court was “unreasonable
to discount to irrelevance” mitigating evidence of the kind
present here. Porter, 

.

    Contrary to the state court’s reasoning, see In re
Andrews, 52 P.3d at 670–71, with which the dissent is in
apparent agreement, see Dissent at 77–82, concerns about
the possible double-edged nature of some of the mitigating
evidence or about possible rebuttal evidence do not diminish
the significance of the available evidence. As described
above, counsel could have presented the most substantial
mitigating evidence—the Mt. Meigs evidence—without the
testimony of inmates and without going into detail about
Andrews’s incarceration history, thus avoiding any concerns
about its “double-edged” nature. Additionally, aggravating
evidence about the specific details of Andrews’s past crimes
was of limited concern because 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 inured to violence and
disrespect for the law.” Id. at 671. The aggravating factors
in this case are, undoubtedly, substantial; no person
considering Andrews’s crimes of conviction would conclude
otherwise. The California Supreme Court accurately
observed that the “crimes evinced a callous disregard for
human life.” Id. But again, that is all the jurors knew about
Andrews. See Porter, 

. His counsel presented
next to nothing to counter the prosecution’s portrayal of their
client. Counsel called no witnesses and offered no
statements from family or friends. In short, counsel offered
no reason for the jury to exercise mercy.
48                    ANDREWS V. DAVIS

    Moreover, this is decidedly not a case where the new
mitigating evidence “would barely have altered the
sentencing profile,” Strickland, 

, or where the
new evidence “largely duplicated the mitigation evidence”
that had already been admitted, Pinholster, 

.
Here, nothing was done in mitigation—despite the existence
of a substantial and compelling mitigating case. Strickland
recognizes that some errors by counsel will have “pervasive
effect[,] . . . altering the entire evidentiary picture.” 466 U.S.
at 695–96. Counsel’s errors had such a pervasive effect here,
skewing the evidence at the penalty phase and depriving the
jury that sentenced Andrews to death from hearing critical
mitigating evidence. See id. at 696. Our conclusion—that
there is a reasonable probability that at least one juror would
have been swayed by this mitigating evidence,
notwithstanding possible rebuttal evidence—does not
overstep or neglect the limitations of our role as a federal
habeas court, as our dissenting colleague repeatedly insists.
Instead, our opinion recognizes only that Andrews’s
counsel’s failure to put on any case in mitigation at the
penalty phase of his capital trial—despite the ready
availability of substantial and compelling mitigating
evidence—represents the type of extreme malfunction in a
state’s criminal justice system that justifies federal court
intervention. We have an unflinching obligation to correct
constitutional errors of the magnitude present here. Under
clearly established Supreme Court precedent, trial counsel’s
failure deprived Andrews of a fair sentencing proceeding,
rendering Andrews’s death sentence “unreliable.” Id.

     Accordingly, the California Supreme Court was
objectively unreasonable in concluding there was no
reasonable probability that at least one juror in Andrews’s
trial—in Los Angeles, in 1984—would have been persuaded
that the violent and degrading abuse Andrews suffered as a
                        ANDREWS V. DAVIS                             49

child at the hands of his state custodians—in segregated
institutions in Alabama, in the mid-1960s—compelled some
measure of mercy and a sentence of life without the
possibility of parole, rather than death.

                                   V

    We therefore AFFIRM the district court’s grant of
sentencing relief, DISMISS the Eighth Amendment lethal
injection claim as unripe, 16 and DENY the request for a
COA of Andrews’s uncertified claims.




    16
       Because California’s lethal injection protocol was not 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, 

(9th Cir. 2011).
50   ANDREWS V. DAVIS




      APPENDIX A
                         ANDREWS V. DAVIS                                  51


Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 171 of 315




                                                               ER000412
52                       ANDREWS V. DAVIS


                                                                                 1991
Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 172 of 315




                                                               ER000413
                         ANDREWS V. DAVIS                                 53

                                                                              1992
Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 173 of 315




                                                               ER000414
54                       ANDREWS V. DAVIS


Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 174 of 315




                                                               ER000415
                         ANDREWS V. DAVIS                                  55


Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 175 of 315




                                                               ER000416
56                       ANDREWS V. DAVIS


                                                                                 1995
Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 176 of 315




                                                               ER000417
                         ANDREWS V. DAVIS                                  57


Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 177 of 315




                                                               ER000418
58                       ANDREWS V. DAVIS


Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 178 of 315




                                                               ER000419
                         ANDREWS V. DAVIS                                  59


                                                                              1998
Case: 09-99012   10/15/2014   ID: 9278330   DktEntry: 115-2   Page: 179 of 315




                                                               ER000420
60                      ANDREWS V. DAVIS

N.R. SMITH, Circuit Judge, concurring in part and
dissenting in part, with whom RAWLINSON and OWENS,
Circuit Judges, join:

    When will my colleagues quit ignoring the Supreme
Court’s repeated reminders to us that “[t]he role of a federal
habeas court is to ‘guard against extreme malfunctions in the
state criminal justice systems’”? Davis v. Ayala, 

 (2015) (quoting Harrington v. Richter, 

, 102–03 (2011)). That, under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), our role
on habeas review is a limited one?

    The California Supreme Court rigorously applied the test
for evaluating prejudice in this context and reasonably
concluded that Andrews was not prejudiced by his counsel’s
deficient performance during sentencing. 1 Because the
California Supreme Court’s conclusions regarding prejudice
were not “beyond any possibility for fairminded
disagreement,” Richter, 

, Andrews cannot
establish prejudice under Strickland v. Washington, 

 (1984). As the California Supreme Court did not
unreasonably apply Strickland or any other decision of the
United States Supreme Court, no “extreme malfunction”
occurred here. The majority errs in affirming the district
court’s grant of habeas relief.

   In granting this relief, the majority repeats the same
“fundamental errors that [the Supreme Court] has repeatedly
admonished [us] to avoid.” Sexton v. Beaudreaux, 

       In dissenting, I assume without deciding that Andrews’s attorney
was deficient during the penalty phase of his trial. Therefore, I limit my
discussion to the other essential element of Andrews’s ineffective
assistance of counsel claim: prejudice. Further, the majority correctly
determined that Andrews’s Eighth Amendment claim is not properly
before us, and that we need not reach Andrews’s uncertified claims.
                       ANDREWS V. DAVIS                             61

2555, 2560 (2018) (per curiam); see also id. (“[T]he Ninth
Circuit failed to assess Beaudreaux’s ineffectiveness claim
with the appropriate amount of deference. The Ninth Circuit
essentially evaluated the merits de novo, only tacking on a
perfunctory statement at the end of its analysis asserting that
the state court’s decision was unreasonable.”(emphasis in
original)). Because “there is at least one theory that could
have led a fairminded jurist to conclude” that Andrews was
not prejudiced by his counsel’s deficiencies, id. at 2259, the
California Supreme Court did not unreasonably apply
Strickland or any other clearly established federal law when
it denied Andrews’s ineffective assistance claim. 2

                                  I.

    A jury convicted Andrews of the murder of Preston
Wheeler, Patrice Brandon, and Ronald Chism. In re
Andrews, 

 (Cal. 2002). After hearing the
stipulated facts regarding Andrews’s criminal history during
the penalty phase, 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. 

 at 658–59.
The third special circumstance was Andrews’s conviction
for the murder of a grocery store clerk in 1967. 

.



    2
      This dissent incorporates much of Judge Ikuta’s well-reasoned
panel majority decision, which I wholeheartedly joined. In particular,
Section I & II largely repeats the relevant portions of the factual and
procedural background section that Judge Ikuta authored for the panel
majority. Likewise, Section III repeats many of the same arguments laid
out by Judge Ikuta in the panel majority’s decision. I am indebted to
Judge Ikuta’s hard work at the earlier stages of this appeal.
62                  ANDREWS V. DAVIS

    The penalty-phase presentations were brief. The
prosecution presented evidence through a joint stipulation.

 at 659–60. The stipulation provided that Andrews had
previously been convicted of: (a) murder in 1967; (b) armed
robbery in 1968; (c) escape in 1969; and (d) robbery in 1977.

. The stipulation did not describe the facts of the
offenses underlying these prior convictions.             The
prosecution also submitted photographs of Patrice Brandon
and Ronald Chism as they were found by the police in the
apartment; the photos “had been excluded from the guilt
phase on the ground that they were unduly inflammatory.”

    The defense evidence consisted of two sworn statements
that were read to the jury. 

 The statements described facts
underlying 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, which
killed the grocery store clerk. 

    In his closing argument, defense counsel focused on
mitigating circumstances. He argued that Andrews’s
previous crimes were unsophisticated, occurred years apart,
and all involved the unexpected escalation of a planned
robbery. 

 He pointed out that Andrews was only 16 years
old at the time of the murder of the grocery store clerk and
was not the shooter. 

 He portrayed Andrews’s conduct in
the instant case as less blameworthy, because the murders
occurred while Andrews, Andrews’s co-defendant Charles
Sanders, Wheeler, and Brandon were under the influence of
illegal drugs. 

 at 659–60. Finally, he emphasized that
murderers had received life without the possibility of parole
in other cases despite a jury’s finding of special
circumstances and despite more blameworthy conduct. 

                    ANDREWS V. DAVIS                       63

at 659. He also pointed out that, in this very case, Andrews’s
co-defendant Sanders received a sentence of only 17 years
to life. 

. The prosecution offered no rebuttal.

   After one day of deliberation, the jury returned a verdict
and imposed the death penalty for each of the three murder
counts. The California Supreme Court affirmed Andrews’s
conviction and his death sentences. See People v. Andrews,

 (Cal. 1989).

    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 denied all of Andrews’s claims,
except for his penalty phase ineffective assistance of counsel
claim. In re Andrews, 

. Then, the California
Supreme Court appointed a referee to take evidence and
make factual findings on six questions related to that claim.
Those questions are:

       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?
64                   ANDREWS V. DAVIS

       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?

    The referee received the testimony of more than 50
witnesses over the span of six years. 

. 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. 

 at 660–
65.

                              A.

    In response to the first question, the referee identified
three broad categories of mitigating character and
background evidence that was available but not presented to
the jury: (1) Andrews’s family background; (2) the
                    ANDREWS V. DAVIS                      65

conditions of his confinement in a juvenile reform school
and in the Alabama prison system; and (3) his mental health.

 at 660–62.

                             1.

    As for Andrews’s family background, the referee’s
report found that, when Andrews was very young, his
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. That family home was located
in a poor, segregated neighborhood of Mobile, Alabama. 

. The referee described Andrews’s grandfather as
“loving, benevolent, and responsible.” 

 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.” 

. When Andrews was around
nine or ten, his mother returned home with children from
another marriage, making Andrews jealous. 

.
Around that time Andrews’s grandfather, a “pivotal figure”
in his life, died. 

 Andrews became withdrawn, skipped
school, and committed car theft at age 14. For that crime, he
was sent to a reform school known as Mt. Meigs, formally
the Alabama Industrial School for Negro Children. Id.

                             2.

    As for the second category (the conditions at Mt. Meigs
and in the Alabama prison system), the California Supreme
Court recognized that “[a]t Mt. Meigs, [Andrews]
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 inhumane conditions, and severe beatings with,
“among other things, broomsticks, mop handles, and fan
66                  ANDREWS V. DAVIS

belts.” Id. at 677 (Kennard, J., dissenting). The California
Supreme Court also noted that the referee found that
Andrews “was subjected to beatings, brutality, inadequate
conditions and sexual predators.” Id. at 660–61.

    After his release from Mt. Meigs, Andrews began to
associate with Freddie Square, an older boy with
“manipulative and criminal tendencies.” Id. at 661. 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. Andrews was convicted
of murder (based on the grocery store incident) and later of
armed robbery (of the taxi driver). Id. at 661 n.4. Andrews
began serving his sentence in Alabama state prison just
before he turned 18. Id. at 661. He escaped from prison and
was convicted for that offense in 1969. Id. at 659. He
remained in prison until 1976.

   Summarizing the referee’s findings about the prison
conditions, the California Supreme Court stated:

       [The referee] described conditions in these
       institutions as abysmal, characterized by
       severe overcrowding, racial segregation,
       substandard facilities, no separation of the
       tougher inmates from younger or smaller
       inmates, constant violence, the persistent
       threat of sexual assaults and the constant
       presence of sexual pressure, the availability
       and necessity of weapons by all inmates, and
       degrading conditions in disciplinary
                    ANDREWS V. DAVIS                     67

       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,”
id. at 662, but had been “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. The
California Supreme Court noted the following testimony
concerning the incident:

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

Id. at 665. Andrews was arrested 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
68                      ANDREWS V. DAVIS

child, and Andrews held a job during this time. Id.
However, by late 1979, Andrews had resumed using cocaine
and left his job and family. Id. Soon after, he committed the
three murders at issue here. Id.

                                   3.

    Summarizing the third category of potentially mitigating
evidence not presented to the jury, the California Supreme
Court noted that defense experts had 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 several
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, and one concluded
that Andrews was “affected by serious emotional
disturbance when he committed the murders.” Id. at 680.

                                   B.

    In addressing question five 3 (“What evidence, damaging
to petitioner, but not presented by the prosecution at the guilt

     3
       The California Supreme Court also recounted the referee’s
findings on questions two, three, and four. These questions addressed
the investigative steps trial counsel could have and actually did take to
gather mitigating evidence for the penalty phase, and the constraints that
weighed against the trial counsel investigating or presenting mitigating
character and background evidence at the penalty phase. Because I do
                       ANDREWS V. DAVIS                           69

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
664–65.

    First, the prosecution 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,” after
which Andrews fired at least two shots at the driver. 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—a crime that involved
holding two women hostage, one with a gun to her head. Id.
The jury had heard that Andrews was convicted of these
offenses, but it did not hear the facts on which the
convictions were based; the prosecutor could have
introduced a complete description of the underlying events
as aggravating evidence to show Andrews’s greater moral
culpability for the rape and triple-murder.

    Further, if Andrews’s counsel had presented the expert
opinions regarding Andrews’s mental disorders, the referee
determined that the prosecution could have called its own
mental health experts to rebut Andrews’s evidence. Id. The
state could have presented expert testimony that Andrews
did not suffer from PTSD, but rather suffered from antisocial
personality disorder, that he 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

not address the issue of deficient performance here, I largely do not
address or discuss those findings.
70                   ANDREWS V. DAVIS

suffered brain damage. Id. In addition, a prosecution expert
would have testified that Andrews’s “behavior on the night
of the murders showed planning and thought, and it was
therefore unlikely that [Andrews] was under the influence of
PCP when he committed the murders.” Id.

                              C.

     Regarding 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,] [i]f so, what specifically did petitioner request?”), the
California Supreme Court noted that the referee had
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, Gerald Lenoir,
“represented on the record at trial that [Andrews] 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 “[Andrews] 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. Id.
                        ANDREWS V. DAVIS                              71

                                   II.

    As noted above, before ruling on Andrews’s ineffective
assistance claim, the California Supreme appointed a
referee, a retired judge, who conducted an extensive
investigative proceeding over the course of more than six
years, during which time she took testimony from more than
50 witnesses. At the conclusion of that proceeding, the
referee prepared and delivered to the California Supreme
Court a lengthy report that both summarized the evidence it
had taken and made factual findings concerning each of the
issues identified by the California Supreme Court’s
reference order.

    Andrews raised objections to many of the referee’s
findings. The court specifically addressed only two of
them, 4 namely the referee’s finding that: (1) the prosecutor
would have introduced rebuttal evidence if the defense had
offered the potentially mitigating evidence identified during
the course of the reference hearing; and (2) Andrews did not
want his family to testify during the penalty phase of his trial.
Id. at 665–67. The California Supreme Court overruled both
objections, finding them to be supported by both substantial
evidence and the credibility determinations drawn by the
referee based on the voluminous testimony the referee had
heard during the reference proceeding. Id. at 666–67. With
the objections addressed, the court recited and expressly
adopted many of the referee’s findings.

    After considering “the record of the hearing, the
referee’s factual findings, and petitioner’s original trial,” the

    4
      The California Supreme Court declined to rule on the remainder of
Andrews’s objections (or the objections to the referee’s findings raised
by the State), finding that the issues addressed by those other objections
were “not material to [its] resolution of the petition.” Id. at 665.
72                  ANDREWS V. DAVIS

California Supreme Court concluded that “[Andrews]
received constitutionally adequate representation, and any
inadequacy did not result in prejudice.” Id. at 659.
Regarding prejudice, the California Supreme Court
determined that, 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, “it is not
‘reasonably probable’ [Andrews] was prejudiced by
counsel’s rejection of a defense premised on evidence of
[Andrews]’s upbringing, the Alabama prison conditions he
experienced, and his mental health in light of the
circumstances of the crimes, given the ambiguous nature of
some mitigating evidence and the substantial potential for
damaging rebuttal.” Id. at 671 (alterations and citation
omitted) (quoting Strickland, 

).

    In particular, the court concluded that much of the
evidence identified by Andrews 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. 

 at 670 n.9. For example, the court 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. 

. The court therefore concluded that
“[Andrews] did not suffer a home environment that would
place his crimes in any understandable context or explain his
resorting to crime every time he was released or escaped
from prison.” 

    In addition, the California Supreme Court determined
that the evidence regarding the prison conditions was
essentially a double-edged sword. On the one hand, the
                   ANDREWS V. DAVIS                     73

prison conditions evidence left “no doubt [that Andrews]
endured      horrifically    demeaning    and     degrading
circumstances.” 

 at 670–71. 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. 

. “Many had
themselves engaged in brutality while in prison and escaped
with some frequency,” similar to Andrews. 

 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.” 

    The California Supreme Court concluded that, based on
the foregoing, any inadequacies in counsel’s performance
“did not result in prejudice.” Id. at 659. Accordingly, the
California Supreme Court denied Andrews’s state habeas
petition. Id. at 676. A federal habeas petition followed,
which was granted by the district court. It found that the
California Supreme Court had unreasonably applied existing
United States Supreme Court precedent concerning
ineffective assistance of counsel claims. This appeal
followed.

                           III.

   Under AEDPA, an application for a writ of habeas
corpus may not be granted:

       with respect to any claim that was
       adjudicated on the merits in State court
       proceedings unless the adjudication of the
       claim—(1) resulted in a decision that was
       contrary to, or involved an unreasonable
74                   ANDREWS V. DAVIS

       application of, clearly established Federal
       law, as determined by the Supreme Court of
       the United States; or (2) resulted in a decision
       that was based on an unreasonable
       determination of the facts in light of the
       evidence presented in the State court
       proceeding.

(d).

     This case involves the application of § 2254(d)(1) and
asks whether the state court’s decision was an unreasonable
application of Strickland. This is a highly deferential
standard. See Richter, 

 (“The standards
created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is
‘doubly’ so.”(citations omitted)); see also Cullen v.
Pinholster, 

 (2011) (noting that AEDPA
sets forth a “highly deferential standard . . . , which demands
that state-court decisions be given the benefit of the
doubt”(quoting Woodford v. Visciotti, 

(2002) (per curiam))). “As amended by AEDPA, § 2254(d)
stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings,”
and instead 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 [the
Supreme] Court’s precedents.” Richter, 

.

    “The pivotal question is whether the state court’s
application of the [relevant Supreme Court precedent] was
unreasonable.” 

. The Supreme Court has told us
“time and again that ‘an unreasonable application of federal
law is different from an incorrect application of federal
law.’” Pinholster, 

 (quoting Richter, 562
                     ANDREWS V. DAVIS                        75

U.S. at 101); see also Richter, 

 (“[E]ven a
strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.”).                Moreover, an
“unreasonable application” of Supreme Court precedent is
not one that is merely “incorrect or erroneous.” Lockyer v.
Andrade, 

 (2003); see also Williams v.
Taylor, 

 (2000). “Under § 2254(d), a
habeas court must determine what arguments or theories
supported” the state court’s decision, Richter, 

, and if “‘fairminded jurists could disagree’ on the
correctness of the state court’s decision,” that decision is not
unreasonable. 

 at 101 (quoting Yarborough v. Alvarado,

 (2004)); see also Beaudreaux, 138 S. Ct.
at 2559–60.

    Therefore, it does not matter whether we would have
reached a different result here than the California Supreme
Court. Rather, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 

. “If this standard is difficult to meet, that is because
it was meant to be.” 

.

    The clearly established federal law for ineffective
assistance of counsel claims, as determined by the Supreme
Court, is Strickland and its progeny. See Pinholster, 

; see also Richter, 

. 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 that: (1) “counsel’s performance was deficient,” and
(2) “the deficient performance prejudiced the defense.” 

76                     ANDREWS V. DAVIS

at 687. However, when a Strickland claim is considered
through AEDPA’s deferential lens, “[t]he likelihood of a
different result must be substantial, not just conceivable,” to
establish prejudice. Richter, 

 (citing
Strickland, 

).

    As previously indicated, I limit this analysis to the
second essential element of Andrews’s ineffective assistance
claim: prejudice. Determining whether counsel’s deficient
performance prejudiced the defense at the penalty phase of a
capital case generally proceeds through three steps. First,
the court must evaluate and weigh the totality of the
available mitigation evidence. See Williams, 529 U.S. at
397–98; Pinholster, 563 U.S. at 197–202. Second, the court
must evaluate and weigh the aggravating evidence and any
rebuttal evidence that could have been adduced by the
government had the mitigating evidence been introduced.
See Williams, 529 U.S. at 397–98; Pinholster, 563 U.S. at
197–202. Third, the court must re-weigh the evidence in
aggravation against the totality of available mitigating
evidence 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,

; see also Sears v. Upton, 

, 955–
56 (2010) (per curiam); Wiggins v. Smith, 

(2003). The California Supreme Court carefully applied this
framework and drew conclusions that are supported by the
evidence. 5 Let me explain.


     5
       The majority states that the California Supreme Court “dispensed
with its [prejudice] analysis in two sentences.” Maj. Op. at 39. The
majority also charges that court with “improper[ly] conflat[ing]” the
deficiency and prejudice analyses. 

 However, these statements
                         ANDREWS V. DAVIS                               77

                                    A.

    The California Supreme Court 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 factual findings made by
the referee at the conclusion of the referee’s six-year
investigation. See Williams, 529 U.S. at 397–98. The court
reviewed all of the mitigating evidence that Andrews
presented, including: Andrews’s family background,
incarceration in Mt. Meigs and in Alabama prisons, and
mental health evidence. See In re Andrews, 52 P.3d at 670–
71.

    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 v. Kemp, 

 (1987);
Pinholster, 563 U.S. at 201–02. As noted previously, the
court concluded that much of the evidence identified as
mitigating was not unambiguously mitigating, and the court

simply misrepresent the California Supreme Court’s analysis. For
example, the California Supreme Court spent page upon page discussing
the double-edged nature of the mitigating evidence defense counsel
could have introduced. See In re Andrews, 52 P.3d at 668–72. That the
California Supreme Court relied on this evidence in analyzing whether
defense counsel was deficient does not preclude the court from then
relying on that same evidence in its prejudice analysis; nor does it mean
that the court somehow conflated the two analyses merely because the
same evidence goes to each prong. Instead, Sears v. Upton—the case
the majority relies upon in making its assertion in this regard—simply
stands for the proposition that courts should not foreclose that a
potentially mitigating factor might satisfy one prong of the analysis just
because it fails to satisfy the other. See 

 n.10. Sears thus
in no way bars courts from relying on the same facts in conducting its
analysis of each prong of the ineffective assistance test, as the California
Supreme Court did in this case.
78                   ANDREWS V. DAVIS

also noted the possibility that the evidence could have been
rebutted or used to Andrews’s disadvantage. See In re
Andrews, 

 n.9.

    The California Supreme Court 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. 

. Based
on that observation, the court concluded that “[Andrews] did
not suffer a home environment that would place his crimes
in any understandable context or explain his resorting to
crime every time he was released or escaped from prison.”

 This conclusion was not unreasonable. Evidence of a
difficult upbringing can be useful in mitigation, but the
opposite is also true. See Bell v. Cone, 

, 701–
02 (2002) (observing that evidence of a normal youth might
“cut the other way”). At the very least, this determination
was not so lacking in justification that it was an error beyond
any fairminded disagreement. See Richter, 

.

    In addition, the California Supreme Court determined
that the evidence regarding the prison conditions was
double-edged. On the one hand, the prison conditions
evidence left “no doubt [that Andrews] endured horrifically
demeaning and degrading circumstances.” In re Andrews,

. 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.

. “Many had themselves engaged in brutality while
in prison and escaped with some frequency,” similar to
Andrews. 

 Though the majority notes that this
information could have been discovered through “standard
legal research” and a review of then existing lawsuits, Maj.
Op. at 25, it does not explain how this information, once
                    ANDREWS V. DAVIS                       79

discovered, could have been introduced without offering
similar unfavorable comparisons for the jury to draw. Even
if this evidence could be introduced through some means
other than inmate testimony, no matter how this evidence
was presented, “[r]ather than engendering sympathy, the
evidence could well have reinforced an impression of
[Andrews] as a person who had become desensitized and
inured to violence and disrespect for the law.” In re
Andrews, 

; cf. Pinholster, 563 U.S. at 201–02.

    The majority also claims that the California Supreme
Court was unreasonable in concluding that the Mt. Meigs
evidence could have cut both ways, 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.’” Maj. Op. at 47
(quoting In re Andrews, 

). However, the
majority mischaracterizes the evidence before the jury in this
proceeding. The stipulation presented to the jury did not
describe the facts of each of the offenses underlying
Andrews’s prior convictions. As a result, the jury did not
hear that Andrews held a woman hostage with a gun to her
head when robbing a laundry business. In re Andrews, 

. Nor did it hear that the taxi driver in the 1968
robbery heard Andrews say “[l]et’s shoot him,” after which
Andrews fired at least two shots at the driver. 

    These details, had they been introduced during the
sentencing proceeding to rebut testimony concerning the
conditions of Andrews’s confinement, could have further
underscored that Andrews was a repeat violent offender who
had long ago lost any respect for the law. The California
Supreme Court’s determination that evidence relating to Mt.
Meigs and the other facilities in which Andrews was
80                   ANDREWS V. DAVIS

incarcerated was not conclusively and unambiguously
mitigating and could cut both ways was thus not an
unreasonable determination, nor is it beyond the scope of
fairminded disagreement.

                              B.

    The California Supreme Court 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; Wong v. Belmontes, 

, 24–28 (2009) (per curiam). Based on that
assessment, the California Supreme Court determined that
the aggravating evidence introduced against Andrews was
overwhelming, even without considering the rebuttal
evidence that the prosecutor could have (but did not)
introduce during the sentencing proceeding.

    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, 

. 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.

 He also did more than simply kill the victims. He raped
and sodomized Brandon before killing her, and he killed
Wheeler and Chism with “considerable violence and evident
sangfroid.” 

    The California Supreme Court also noted that, as rebuttal
evidence, the prosecution could have presented the details of
Andrews’s criminal history, cf. Cone, 

 n.5;
Burger, 

, from which the jury might conclude
Andrews was “aggressive and desensitized to violence,” In
re Andrews, 

. The court also determined that
a jury may have concluded that this “pattern of criminality”
                        ANDREWS V. DAVIS                             81

showed Andrews “would pose a danger to others if he were
sentenced to life imprisonment.” 6 

 In light of these facts,
the California Supreme Court reasonably determined that the
government had produced significant evidence of numerous
extremely serious aggravating circumstances.

    The California Supreme Court further noted that, had
Andrews offered expert testimony suggesting that his prison
experience caused him to react with rage to perceived
insults, the prosecutor could have quite conceivably used
that same mental health evidence to Andrews’s disadvantage
on cross examination. 

. That is, such testimony
could have also plausibly convinced the jury that Andrews
“was unable to control lethal impulses on the slightest
provocation.” Id.; cf. Pinholster, 563 U.S. at 201–02.
Moreover, the presentation of the mental health evidence
would also have given the prosecutor additional
opportunities to repeat the circumstances of these crimes as
well as Andrews’s past criminality. In re Andrews, 

       Andrews argues that the California Supreme 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. I disagree. The California Supreme 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 id. at 679,
and reasonably concluded that evidence showing that Andrews was
conditioned to violence during his prison experiences was an
aggravating, not mitigating, circumstance. See Burger, 

(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 this evidence might impact a jury.
82                  ANDREWS V. DAVIS

at 670. Finally, the court also pointed out, based on the
referee’s findings, that prosecution experts could have
testified that Andrews had normal intelligence and did not
suffer brain damage, but had antisocial personality traits.
Id.; cf. Pinholster, 

.

    These findings are supported by the California Supreme
Court record. The California Supreme Court did not
unreasonably determine that the state was poised to
introduce rebuttal testimony that, if anything, could have
provided further evidence of aggravating circumstances or
considerations.

                            C.

    After evaluating the mitigating and aggravating
evidence, the California Supreme Court re-weighed 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, 

; see also In re Andrews,
52 P.3d at 671–76. The state court applied the relevant
Supreme Court precedent and concluded it was not
reasonably probable that Andrews was “prejudiced by
counsel’s rejection of a defense premised on evidence of
[Andrews]’s upbringing, the Alabama prison conditions he
experienced, and his mental health in light of the
circumstances of the crimes, given the ambiguous nature of
some mitigating evidence and the substantial potential for
damaging rebuttal.” 

. Accordingly, the California
Supreme Court concluded that, even if counsel were
deficient, Andrews’s defense was not prejudiced by any such
deficiency. 

                     ANDREWS V. DAVIS                       83

    The majority finds that this was an unreasonable
application of Strickland; the majority errs. Much as was the
case in Richter, the majority has “treated the
unreasonableness question as a test of its confidence in the
result it would reach under de novo review: Because the
Court of Appeals had little doubt that [Andrews’s]
Strickland claim had merit, the Court of Appeals concluded
the state court must have been unreasonable in rejecting it.”

 (emphasis in original). This is not the
appropriate test under AEDPA, a fact of which the Supreme
Court has reminded the Ninth Circuit on numerous
occasions. See, e.g., Beaudreaux, 138 S. Ct. at 2559–60;
Ayala, 

 (“[T]he members of the panel
majority misunderstood the role of a federal court in a habeas
case.”); Nevada v. Jackson, 

 (2013) (per
curiam) (“In thus collapsing the distinction between ‘an
unreasonable application of federal law’ and what a lower
court believes to be ‘an incorrect or erroneous application
of federal law,’ the Ninth Circuit’s approach would defeat
the substantial deference that AEDPA requires.” (citation
omitted)); Cavazos v. Smith, 

 (2011) (per
curiam) (same); Pinholster, 563 U.S. at 202–03 (“Even if the
Court of Appeals might have reached a different conclusion
as an initial matter, it was not an unreasonable application of
our precedent for the California Supreme Court to conclude
that Pinholster did not establish prejudice.”); Felkner v.
Jackson, 

 (2011) (per curiam) (same);
Premo v. Moore, 

 (2011) (same). Rather,
the majority should have applied this standard: Where, after
determining “what arguments or theories supported” the
state court’s decision, Richter, 

, “‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision,” that decision is not objectively unreasonable, 

at 101 (quoting Yarborough, 

).
84                   ANDREWS V. DAVIS

    And in this case, reasonable jurists could disagree on the
correctness of the conclusion drawn by the California
Supreme Court. The evidence that Andrews argues should
have been introduced at sentencing could have conceivably
persuaded the jury to impose a sentence other than death.
However, a mere possibility of a different outcome is not
enough. See Richter, 562 U.S. at 111–12. Rather than apply
the appropriate level of deference required under AEDPA,
the majority steps into the shoes of the dissenting justice of
the California Supreme Court in this case and essentially
applies Strickland de novo. Indeed, the majority even makes
its own factual findings when it determines that the
prosecution would not have introduced rebuttal witnesses
had the defense presented evidence of Andrews’s prison
conditions. Yet this finding discounts the substantial
rebuttal evidence that the California Supreme Court and the
referee found could have been introduced. See In re
Andrews, 52 P.3d at 665–66. Under AEDPA, such review
is erroneous. In taking this approach, the majority has
ignored “the only question that matters under § 2254(d)(1),”
Lockyer, 

, namely, whether the state court’s
application of the clearly established Supreme Court
precedent was objectively unreasonable.

    To make matters worse, the ink is barely dry on a
Supreme Court decision reminding our circuit that habeas
relief is not appropriate under AEDPA when a single theory
exists that supports the result adopted by the state court. See
Beaudreaux, 138 S. Ct. at 2559–60. Such a theory exists
here, and it was articulated by the California Supreme Court:
If introduced, the potentially mitigating evidence at issue
could quite possibly have had the opposite of the intended
effect, both because it paled in comparison to the nearly
overwhelming aggravating evidence adduced by the state
both during trial and at sentencing, and because its
                       ANDREWS V. DAVIS                             85

introduction would have offered the prosecutor an
opportunity to re-visit the gruesome nature of Andrews’s
crimes on cross-examination, and to introduce in rebuttal
some or all of the additional aggravating evidence it had in
its possession. As a result, the California Supreme Court
determined that it was not reasonably probable that a
different outcome would have occurred, but for counsel’s
errors.

    The majority purports to recognize AEDPA’s highly
deferential standard, but fails to apply it. Just because we
may have concluded otherwise had we been sitting on the
California Supreme Court, we do not have license to second
guess that court’s well-reasoned decision. Instead, because
fairminded jurists can disagree regarding the correctness of
the state court’s application of Strickland to Andrews’s
penalty phase ineffective assistance claim, we are bound by
AEDPA and binding Supreme Court precedent to conclude
that Andrews is not entitled to habeas relief on that issue.

                                  D.

   Andrews also argues that the California Supreme Court’s
decision unreasonably applies not only Strickland, but two
other Supreme Court decisions as well: Williams and Porter
v. McCollum, 

 (2009) (per curiam). 7
Unfortunately, the majority accepts this argument.


    7
       The majority also argues that the California Supreme Court
erroneously relied on the Supreme Court’s decision in Burger, though it
does so in the context of its discussion of counsel’s deficient
performance, not its discussion of prejudice. See Maj. Op. at 32–34.
Burger supports the California Supreme Court’s finding of no prejudice.
In Burger, the Supreme Court found that counsel was not deficient for
failing to present double-edged mitigating evidence that would have
86                      ANDREWS V. DAVIS

    The California Supreme Court discussed Williams at
length and distinguished it as having “substantially
dissimilar facts.” In re Andrews, 52 P.3d at 674–75. The
California Supreme Court correctly determined that
Andrews’s case and Williams are distinguishable.

    The majority suggests that Andrews’s childhood was
comparable to the “nightmarish childhood” described in
Williams, 

, largely due to Andrews’s
experiences at Mt. Meigs, Maj. Op. at 31, 43. The record
before us does not support such a conclusion. Had counsel
adequately investigated Williams’s background, he would
have discovered documents that “dramatically described
mistreatment, abuse, and neglect during [Williams’s] early
childhood,” 

 (emphasis added), before Williams
was removed (at least temporarily) from his abusive home at
age 11, 

. Andrews’s early childhood, in
contrast, was spent in a relatively stable and non-abusive
household, see In re Andrews, 

, a fact that the
majority has not even attempted to challenge or dispute.
Despite that stable upbringing, Andrews dropped out of
school and stole a car at the age of 14, after which he was
removed from home and placed in Mt. Meigs. Andrews
experienced appalling conditions and treatment at Mt.
Meigs, but his experiences at Mt. Meigs while a teen are
simply not the same as the abuse that Williams suffered at
so young an age at the hands of his parents. Thus, the

introduced damaging facts to the jury and suggested “violent
tendencies.” 483 U.S. at 793–95. The California Supreme Court reached
the same conclusion as Burger, i.e., that Andrews’s mitigating evidence
would negatively affect a jury because it would have allowed “the
introduction of substantial aggravating evidence . . . that could have
undermined the defense by depicting [Andrews] as aggressive and
desensitized to violence.” In re Andrews, 

 (citing Burger,
483 U.S. at 794–95). This conclusion was neither erroneous, nor was it
an unreasonable application of Burger.
                       ANDREWS V. DAVIS                           87

California Supreme Court reasonably determined that the
abuse described here is not comparable to the abuse and
“nightmarish childhood” described in Williams.

     Moreover, even assuming that the California Supreme
Court was essentially bound to conclude that the
mistreatment described here is the same as the mistreatment
described in Williams, there are a number of other reasons
why Williams and this case are distinguishable. First, in
Williams, defense counsel could have introduced strong
character evidence regarding his exemplary conduct in
prison, 

, but no comparable evidence of good
character was present in Andrews’s case. The defendant in
Williams was “borderline mentally retarded,” 

, while the prosecution could have presented evidence
that Andrews had an average IQ and antisocial personality
traits. In re Andrews, 

. Although the
prosecutor in Williams could have introduced rebuttal
evidence that the 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 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, 

. Finally,
the circumstances of the crime in Williams, where the
defendant admitted that he had killed a man by striking him
in the chest and back after an argument, were far less brutal
than Andrews’s rape and triple murder. 

 8


     8
       The majority suggests that the California Supreme Court
unreasonably compared the aggravating facts of Andrews’s case to
mitigating facts in Williams. Maj. Op. at 42. However, AEDPA requires
that, whenever possible, we must “read [the state court] decision to
88                       ANDREWS V. DAVIS

    The majority fails to engage with these distinctions and
the evidence at issue. Instead, the majority reviews this issue
de novo 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. Maj. Op. at 42–44. Once
again, the majority misapprehends our role under AEDPA.
We must determine whether the California Supreme Court’s
application of Williams was objectively unreasonable under

(d)(1), not whether we would have reached
a different result if we were in the California Supreme
Court’s position. “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, 

 (2017) (per curiam)
(quoting Woods v. Donald, 

, 1376 (2015) (per
curiam)). 9 Because the facts of Williams are dissimilar, the

comport with clearly established federal law.” Mann v. Ryan, 

 (9th Cir. 2016) (en banc). That can easily be done here. The
California Supreme Court drew this particular comparison to illustrate
why the facts at issue in Williams and the facts at issue here are distinct,
and thereby illustrate why these cases are distinguishable. As the
discussion above demonstrates, this determination is amply supported by
a careful reading of Williams and the facts of the case before us. The
majority errs when deciding that the California Supreme Court
unreasonably applied Williams on this basis.
     9
       The majority also relies on Justice Rehnquist’s opinion in
Williams, which described additional aggravating factors beyond the
crime itself. See Maj Op. at 42 (citing Williams, 

(Rehnquist, C.J., concurring in part and dissenting in part)). But under
AEDPA, neither concurring nor dissenting opinions, nor circuit court
decisions, constitute clearly established Supreme Court precedent. See
Williams, 

 (majority opinion) (stating that only the
Supreme Court’s “holdings, as opposed to the dicta” constitute clearly
                        ANDREWS V. DAVIS                             89

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. The majority
appears to agree, finding that (as in Porter) habeas relief is
appropriate here even though in both cases the prosecutor
presented “a strong case in aggravation.” Maj. Op. at 44.
These cases are not remotely comparable. For one thing, the
aggravating evidence in this case is considerably stronger
than the aggravating evidence that was at issue in Porter. A
jury convicted Porter of two murders and, following a
penalty phase trial, recommended a sentence of death for
each murder. Porter, 558 U.S. at 31–32. The Florida
Supreme Court affirmed, but also noted that the evidence
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, and also that Porter had
been “drinking heavily just hours before the murders,” id. at
38. Here, by contrast, there is no evidence showing that
Andrews’s crimes were committed in the heat of passion. To
the contrary, the California Supreme Court found that
Andrews did not impulsively react to a situation that got out
of hand; instead, he interacted with the victims in a calm and
normal manner before torturing them, raping Brandon, and
ultimately killing each of them in cold blood. See In re
Andrews, 

.




established Federal law); cf. Glebe v. Frost, 

, 24 (2014) (per
curiam) (“As we have repeatedly emphasized, however, circuit
precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court.’” (quoting 

(d)(1))).
90                      ANDREWS V. DAVIS

    Porter also strongly criticized the Florida Supreme
Court’s consideration of the potentially mitigating evidence
that was produced during the post-conviction relief
proceeding conducted there. 558 U.S. at 43 (observing that
the Florida Supreme Court had “discount[ed] to irrelevance
the evidence of Porter’s abusive childhood”). The California
Supreme Court did not repeat that same mistake here.
Further, the mitigation evidence produced here is not similar
to the evidence considered in Porter. The most important
mitigation evidence in Porter, that the defendant served in
“two of the most critical—and horrific—battles of the
Korean War,” see id. at 41, is far stronger than the mitigation
evidence at issue here. And Andrews did not have an
abusive home life, while Porter had a childhood history of
physical abuse, during which he was subjected to routine
beatings and regularly watched his father beating his mother.
Id. at 33. Moreover, there is no evidence that the murders
Andrews committed were crimes of passion for which
childhood abuse would have “particular salience for a jury”
in evaluating his behavior. See id. at 43. Because Porter is
factually distinct from this case, the majority errs in
determining that the state court unreasonably applied it in
connection with its determination that Andrews could not
establish prejudice under Strickland. 10


     10
        It is worth noting that the majority has overlooked a Supreme
Court decision that is a closer fit to the facts considered here by the
California Supreme Court: Woodford v. Visciotti, 

 (2002)
(per curiam). In Visciotti, the Supreme Court 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.” Id. In sum, the Court
                         ANDREWS V. DAVIS                              91

    The majority purports to recognize that “our deference
to state court decisions is at its zenith on federal habeas
review,” Maj. Op. at 5, but fails to apply this standard. Here,
the California Supreme Court determined that it was not
reasonably probable that the outcome would have been
different in this case 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 675–76.
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, AEDPA bars relief on that claim.

                                   IV.

    The majority frames its conclusions in the terms required
by AEDPA and declares that its prejudice findings are
beyond any fairminded disagreement. It simply never
explains why no reasonable jurist could come out the other
way. The majority yet again makes the same error that the
Supreme Court has repeatedly corrected in Ninth Circuit
jurisprudence. It essentially reviews the California Supreme
Court’s decision de novo and grants relief that is barred
under AEDPA. Applying the proper measure of deference,

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 Cone, 

). Here, as in Visciotti, the state court re-weighed 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. We must then conclude that
“[w]hether or not we would reach the same conclusion,” we simply
cannot say the California Supreme Court’s conclusion was an
unreasonable application of Strickland. See id. at 27.
92                 ANDREWS V. DAVIS

we can only conclude that the California Supreme Court did
not unreasonably apply Strickland when it rejected
Andrews’s penalty phase ineffective assistance of counsel
claims. We should reverse the district court’s grant of
habeas relief on Andrews’s penalty phase Strickland claim.