Andrews v. Davis, s. 09-99012

• Decision Date: 16 December 2019
• Docket Number: 09-99013,Nos. 09-99012,s. 09-99012
• Parties: Jesse James ANDREWS, Petitioner-Appellant/Cross-Appellee, v. Ron DAVIS, Respondent-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

944 F.3d 1092

Jesse James ANDREWS, Petitioner-Appellant/Cross-Appellee,
v.
Ron DAVIS, Respondent-Appellee/Cross-Appellant.

Nos. 09-99012
09-99013

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 25, 2018 Pasadena, California
Filed December 16, 2019

MURGUIA, Circuit Judge:

944 F.3d 1099

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 , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Andrews received constitutionally adequate representation at the penalty phase. 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. Id. at 688, 104 S.Ct. 2052.

To be sure, our deference to state court decisions is at its zenith on federal habeas review. See Harrington v. Richter , 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (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." Id. at 101, 131 S.Ct. 770. That deference, however, "does not by definition preclude relief." Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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 , 562 U.S. at 102, 131 S.Ct. 770 (quoting Jackson v. Virginia , 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 penalty phase of his trial. Unless the State elects to reprosecute the penalty phase, the writ will issue.

944 F.3d 1100

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 , 28 Cal.4th 1234, 124 Cal.Rptr.2d 473, 52 P.3d 656, 657 (2002). Police later arrested Charles Sanders in connection with the crime. People v. Andrews , 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285, 288 (1989). Sanders entered a plea agreement and gave a statement describing the murders and implicating Andrews. Id. , 260 Cal.Rptr. 583, 776 P.2d at 288–89. Andrews was arrested and charged in June 1982. Id., 260 Cal.Rptr. 583, 776 P.2d 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 , 124 Cal.Rptr.2d 473, 52 P.3d at 658. Sanders testified that he and Andrews devised a plan to rob Wheeler, a drug dealer. Id. 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. Id. When their search proved unfruitful, Andrews said that he would "make Brandon talk," and he "dragged her into the kitchen and closed the door." Id. (quoting Andrews , 260 Cal.Rptr. 583, 776 P.2d at 288 ). Sanders testified that he heard Andrews "hitting Brandon and later heard sounds as though they were having sex." Id.

After Andrews came out of the kitchen, Sanders began searching for drugs in the attic. Id. Sanders testified that he then heard two shots and, when he came down from the attic, Andrews told him he had shot Wheeler, at close range, because Wheeler had tried to escape. Id. Sanders also testified that Andrews told him he had killed Brandon before leaving the kitchen. Id.

While Sanders and Andrews were cleaning the apartment, Chism "knocked on the door and asked if everything was all right." Id. According to Sanders, Andrews "then hit Chism on the head, tied him up, and took him into the bathroom," where Andrews strangled him. Id. (internal quotation mark omitted). Sanders then saw Andrews reenter the kitchen and choke Brandon with a wire clothes hanger. Id.

The defense's guilt-phase strategy consisted primarily of "attempts to undermine Sanders's credibility." Andrews , 260 Cal.Rptr. 583, 776 P.2d at 289. 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. Id. Andrews did not testify. Id.

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 , 124 Cal.Rptr.2d 473, 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. , 124 Cal.Rptr.2d 473, 52 P.3d 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 birthday (showing that Andrews was twenty-nine years old at the

944 F.3d 1101

time of the murders), and that Andrews had pleaded guilty in Alabama to the crimes of armed robbery, escape, and robbery. Andrews , 260 Cal.Rptr. 583, 776 P.2d at 300. 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." Id. 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. Id.

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 , 124 Cal.Rptr.2d 473, 52 P.3d at 658–59. The California Supreme Court affirmed the conviction and sentence on direct appeal on August 3, 1989. Andrews , ...