Andrews v. Davis

• Citation: 798 F.3d 759
• Decision Date: 05 August 2015
• Docket Number: 09–99013.,Nos. 09–99012,s. 09–99012
• Parties: Jesse James ANDREWS, Petitioner–Appellant, v. Ron DAVIS, Acting Warden, Respondent–Appellee. Jesse James Andrews, Petitioner–Appellee, v. Ron Davis, Acting Warden, Respondent–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

798 F.3d 759

Jesse James ANDREWS, Petitioner–Appellant
v.
Ron DAVIS, Acting Warden, Respondent–Appellee.

Jesse James Andrews, Petitioner–Appellee
v.
Ron Davis, Acting Warden, Respondent–Appellant.

Nos. 09–99012
09–99013.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 2015.
Filed Aug. 5, 2015.

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

Xiomara Costello (argued and briefed), Supervising Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, Sarah J. Farhat, Deputy Attorney General, Shira Seigle Markovich, Deputy Attorney General, Edward C. DuMont,

798 F.3d 766

Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Michael J. Mongan, Deputy Solicitor General, James William Bilderback II, Supervising Deputy Attorney General, Los Angeles, CA, for Respondent–Appellee/Cross–Appellant.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:02–CV–08969–R.

Before: SANDRA S. IKUTA, N. RANDY SMITH, and MARY H. MURGUIA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

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

I

A

On December 9, 1979, police were called to a Los Angeles apartment, where they found the bodies of three murder victims. People v. Andrews, 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285, 288 (1989). The murder victims were Preston Wheeler, who lived in the apartment, Patrice Brandon, and Ronald Chism. Id. The California Supreme Court described the murder scene as follows:

Wheeler had been stabbed in the chest six times and shot in the neck at close range with either a .32– or .357—caliber weapon. His face and head were bruised, and his face had been slashed with a knife. Brandon and Chism had been strangled with wire coat hangers. Their faces were bruised, Chism's extensively. Brandon's anus was extremely dilated, bruised, reddened and torn, consistent with the insertion of a penis shortly before her death. There was also redness around the opening of her vagina, and vaginal samples revealed the presence of semen and spermatozoa. All three victims were bound hand and foot.

Id.

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

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

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

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

[Andrews] put his gun in Wheeler's mouth. He threatened to kill Wheeler and Brandon unless Wheeler revealed the location of the drugs. Wheeler said the ‘dope’ was in the attic, and pointed out a trap door leading up to it. Sanders climbed into the attic. While in the attic, Sanders heard two shots. When he came down, [Andrews] told him he had shot Wheeler because the latter had tried to jump out the window. Sanders asked if Wheeler was dead. [Andrews] responded he was ‘standing right up’ on Wheeler when he fired the gun.... When Sanders asked about Brandon, [Andrews] replied he had killed her before leaving the kitchen.

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

In re Andrews, 28 Cal.4th 1234, 124 Cal.Rptr.2d 473, 52 P.3d 656, 658 (2002) (alterations, citations, and internal quotation marks omitted). Andrews was eventually arrested, and he was charged in June 1982.

At trial, the jury heard Sanders's testimony as well as the testimony of Carol Brooks. Brooks confirmed that Andrews and Sanders visited her on the night of the murders and told her about their plan to “get some money” from Wheeler. People v. Andrews, 260 Cal.Rptr. 583, 776 P.2d at 289. A week after the incident, Sanders told her about his involvement in the murders. Id. Then, a few weeks later, Andrews confessed to her that he shot Wheeler, had sex with Brandon, and took $300 during the robbery. Id.

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

The defense primarily focused on undermining Sanders's credibility. Id. Two jail inmates who had been incarcerated with Sanders testified. Id. They stated that, while Sanders was incarcerated with them, he made statements suggesting he planned

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to lie about the murders to shift blame onto Andrews and away from himself. Id.

The jury deliberated for three days before finding Andrews guilty of murder.¹ The jury also found three special circumstances to be true. Two special circumstances related to the offense conduct: (1) multiple murder and robbery murder, based on the murders of Wheeler, Brandon, and Chism, and the robbery of Wheeler, and (2) rape-murder, based on the rape and murder of Brandon. In re Andrews, 124 Cal.Rptr.2d 473, 52 P.3d at 659. The third special circumstance was Andrews's conviction for murder of a grocery store clerk in 1967.Id.

Both the prosecutor and defense counsel made brief presentations at the penalty phase. The prosecutor presented evidence through a joint stipulation. Id. He noted that the jury had already found that Andrews had been convicted of murder in 1967. The parties also stipulated that Andrews had been convicted of armed robbery in May 1968, that he had been convicted of escape in November 1969, and that he had been convicted of robbery in June 1977. Id. The stipulation did not describe the facts of the offenses underlying these additional convictions. The prosecution also submitted photographs of the dead bodies of Patrice Brandon and Ronald Chism as they were found by the police in the apartment; the photos had been excluded at the guilt phase on the ground they were unduly inflammatory. Id. Finally, the parties...