Andrews v. Davis

• Decision Date: 01 August 2017
• Docket Number: No. 09-99013,No. 09-99012,09-99012
• Citation: 866 F.3d 994
• Parties: Jesse James ANDREWS, Petitioner-Appellant, v. Ron DAVIS, Warden, Respondent-Appellee. Jesse James Andrews, Petitioner-Appellee, v. Ron Davis, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

866 F.3d 994

Jesse James ANDREWS, Petitioner-Appellant,

v.Ron DAVIS, Warden, Respondent-Appellee.

Jesse James Andrews, Petitioner-Appellee,

v.Ron Davis, Warden, Respondent-Appellant.

No. 09-99012

No. 09-99013

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2015—Pasadena, California

Filed August 1, 2017

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

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

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

Dissent by Judge Murguia

ORDER

The opinion filed August 5, 2015, and reported at 798 F.3d 759, is withdrawn. Because the court's opinion is withdrawn, appellant/cross appellee's petition for rehearing and petition for rehearing en banc is moot.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

OPINION

IKUTA, Circuit Judge:

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

I

A

On December 9, 1979, police were called to a Los Angeles apartment, where they found the bodies of three murder victims. People v. Andrews , 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, 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 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.

At the penalty phase, both the prosecutor and defense counsel made brief presentations. The prosecutor presented evidence through a joint stipulation. Id . He noted that the jury had already found that Andrews had been convicted of murder in 1967. The parties also stipulated that Andrews had been convicted of armed robbery in May 1968, convicted of escape in November 1969, and convicted of robbery in June 1977. Id . The stipulation did not describe the facts of the offenses underlying these additional convictions. The prosecution also submitted photographs of the dead bodies of Patrice Brandon and Ronald Chism as they were found by the police in the apartment; the photos had been excluded at the guilt phase on the ground they were unduly inflammatory. Id . Finally, the parties stipulated that Andrews's birth date was July 2, 1950. Id .

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

In his closing argument, defense counsel focused on mitigating circumstances. He argued that Andrews's crimes were unsophisticated, occurred several years apart, and all involved the unexpected escalation of a planned robbery. Id . He pointed out that Andrews was only 15 years old at the time of the murder of the grocery store clerk, and was not the shooter. Id . He portrayed Andrews's conduct as less blameworthy because the murders occurred while Andrews, Sanders, Wheeler, and Brandon were under the...