Andrews v. Davis, 080117 FED9, 09-99012

Docket Nº:09-99012, 09-99013
Opinion Judge:IKUTA, Circuit Judge.
Party Name:Jesse James Andrews, Petitioner-Appellant, v. Ron Davis, Warden, Respondent-Appellee. Jesse James Andrews, Petitioner-Appellee, v. Ron Davis, Warden, Respondent-Appellant.
Attorney: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. ...
Judge Panel:Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges. MURGUIA, Circuit Judge, dissenting in part.
Case Date:August 01, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Jesse James Andrews, Petitioner-Appellant,

v.

Ron Davis, Warden, Respondent-Appellee.

Jesse James Andrews, Petitioner-Appellee,

v.

Ron Davis, Warden, Respondent-Appellant.

Nos. 09-99012, 09-99013

United States Court of Appeals, Ninth Circuit

August 1, 2017

          Argued and Submitted January 12, 2015-Pasadena, California

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

          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.

         SUMMARY[*]

         Habeas Corpus/Death Penalty

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

         The panel reversed the district court's grant of relief on Andrews's ineffective-assistance claim that he was prejudiced by his counsel's failure to investigate and present additional mitigating evidence at the penalty phase of his trial. The panel held that under 28 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably apply Supreme Court precedent in concluding that Andrews was not prejudiced by any deficient performance.

         The panel dismissed as unripe the sole claim certified by the district court for appeal - that California's use of its lethal injection protocol to execute Andrews would violate his Eighth Amendment rights. The panel held that because no new protocol was in place at the time the district court ruled on the claim, the district court erred in entertaining the claim.

         The panel denied Andrews's request to certify for appeal his uncertified claims of unconstitutional delay between sentencing and execution, ineffective assistance of counsel, failure to disclose material exculpatory evidence and false testimony, and destruction of evidence.

         The panel held that the district court did not abuse its discretion in denying Andrews's motion for an evidentiary hearing.

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

         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, 776 P.2d 285, 288 (Cal. 1989). The murder victims were Preston Wheeler, who lived in the apartment, Patrice Brandon, and Ronald Chism. Id. The California Supreme Court described the murder scene as follows: Wheeler had been stabbed in the chest six times and shot in the neck at close range with either a .32- or .357- caliber weapon. His 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, 52 P.3d 656, 658 (Cal. 2002) (alterations, citations, and internal quotation marks omitted). Andrews was eventually arrested, and he was charged in June 1982.

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

         The prosecution also presented...

To continue reading

FREE SIGN UP