Brown v. Ornoski ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT GREENWOOD BROWN,  No. 05-99008
Petitioner-Appellant,
v.  D.C. No.
CV-94-08150-ABC
STEVEN W. ORNOSKI, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
June 14, 2007—San Francisco, California
Filed September 19, 2007
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Hawkins
12605
12608 BROWN v. ORNOSKI
COUNSEL
Jan B. Norman, Los Angeles, California, for the petitioner-
appellant.
Barry J.T. Carlton, Supervising Deputy Attorney General, San
Diego, California, for the respondent-appellee.
BROWN v. ORNOSKI 12609
OPINION
HAWKINS, Circuit Judge:
Petitioner Albert Greenwood Brown, Jr. (“Brown”) was
convicted in California and sentenced to death for the rape
and murder of a fifteen-year-old girl. The district court denied
his petition for a writ of habeas corpus, but granted a certifi-
cate of appealability (“COA”) on two claims that Brown
received ineffective assistance of counsel in the sentencing
phase of his trial. We expanded the COA to include two addi-
tional claims, one also involving penalty phase ineffective
assistance of counsel, and another involving Brown’s claim
that lethal injection violates the Eighth Amendment. We
affirm the district court’s denial of the writ.
STATEMENT OF FACTS AND PROCEDURAL
HISTORY
On October 28, 1980, about 7:30 a.m., 15-year-old Susan
Jordan left her home to walk to Arlington High School. Peo-
ple v. Brown, 40 Cal. 3d 512, 522 (1985). She never arrived,
and efforts throughout the day to locate her were unsuccess-
ful. That evening, Susan’s mother answered the telephone and
a caller asked “Hello, Mrs. Jordan, Susie isn’t home from
school yet, is she?” Mrs. Jordan replied that she was not. The
voice then declared, “You will never see your daughter again.
You can find her body on the corner of Victoria and Gibson.”
At Mrs. Jordan’s request, the caller repeated the information,
then hung up. Within a half-hour, another call said, “On the
corner of Gibson and Victoria, fifth row, you will find a white
Caucasian body of a young girl in the orange grove.” Id.While police officers were at the Jordan home later that
evening, a third call was received. The caller said, “You can
find Sue’s identification in a telephone booth at the Texaco
station at Arlington and Indiana.” Id. Officers were sent to the
Texaco station, where they discovered two Arlington High
12610 BROWN v. ORNOSKI
School identification cards belonging to Susan and a library
pouch from a book. Id. at 523.
Meanwhile, a police dog found Susan’s body lying face
down in the orange grove, with dirt piled up on both sides of
her head. The body was nude below the waist except for
socks, and Susan’s bra was partially pulled out from under her
blouse. Her jeans were located elsewhere in the grove. A
shoelace, apparently from one of her shoes, was wrapped
tightly around her neck. Homicide investigators found signs
of a struggle and indications that the body had been dragged
for some distance. Id. at 522-23.
About 9:30 p.m., another call was received at Susan’s
home, stating “In the tenth row, you’ll find the body.” The
Jordans were able to record this call. Two acquaintances of
Brown later identified the voice on the taped call as that of
Brown. Id. at 523, 525.
Early the next morning, the police set up roadblocks on the
streets near the grove and questioned passersby. Witnesses
recalled seeing a black man approaching Susan on the bike
trail, standing in the grove as she walked by, or following her.
Witnesses also reported seeing a brown Trans Am in the
vicinity on that date, which matched the description of
Brown’s car. Witnesses also described the man they had seen
in the area as wearing jogging clothes, some particularly
describing green running shorts and a green and white shirt.
Id. at 523.
The investigation quickly focused on Brown. About a week
after the murder, the authorities obtained a search warrant for
Brown’s residence. Inside the house, a telephone directory
was turned back to the page containing the Jordans’ listing.
There were newspaper articles about Susan’s death under
Brown’s bed, and two of her missing schoolbooks were found
in the den. The library pouch found in the telephone booth
had come from one of the books. Green running shorts and a
BROWN v. ORNOSKI 12611
green and white shirt were found in Brown’s work locker, and
undershorts found in the locker had semen stains. Id. at 523-
24. At trial, three witnesses positively identified Brown as the
man they saw near the grove on the day of Susan’s death. Id.
at 524.
Brown presented an alibi defense. His mother testified that
Brown was at home with her on the morning of October 28,
leaving the house for only about eight minutes to get milk,
and then leaving for work at 8:14 a.m. Id. at 525.
The jury convicted Brown of first degree murder and of the
special circumstance of murder in the course of rape. At the
penalty phase, the prosecution presented evidence that Brown
had previously raped a fourteen-year-old girl in her home as
she prepared to leave for school. Id. at 525. The defense pre-
sented psychiatric and background evidence suggesting that
Brown suffered severe emotional problems, including sexual
maladjustment and dysfunction. Id. at 525. Brown’s defense
psychiatrist opined that Brown killed Susan out of shame for
raping her, and that the phone calls indicated shame and a
desire to be caught. The psychiatrist opined that Brown was
not violent by nature, but was only a threat to women, and
that he would not present a problem if sentenced to life in
prison.
Several of Brown’s family members testified on his behalf.
Brown also took the stand, expressed remorse for the prior
rape, and asked the jury for mercy. Id. at 525. After deliberat-
ing for less than three hours, the jury returned a death verdict.
On direct appeal, the California Supreme Court affirmed
Brown’s conviction, but reversed the penalty based on what
it perceived as an improper jury instruction. Id. at 537-38.
However, the United States Supreme Court granted certiorari
and reversed the California Court, thus reinstating the death
penalty. California v. Brown, 479 U.S. 538, 539-43 (1987).
On remand, the California Supreme Court reversed again
12612 BROWN v. ORNOSKI
because the trial court had failed to make a proper record of
its denial of the motion for modification of the death penalty.
People v. Brown, 45 Cal. 3d 1247, 1263-64 (1988). The trial
court then made a proper determination on the record, which
was upheld by the California Supreme Court, and the United
States Supreme Court denied Brown’s petition for certiorari.
People v. Brown, 6 Cal. 4th 322 (1993).
Brown filed his federal habeas petition in May 1996, but it
contained many unexhausted claims. The district court stayed
proceedings, and Brown filed a habeas petition with the Cali-
fornia Supreme Court in November 1996, which was curso-
rily denied (on procedural grounds and on the merits) in an
unpublished opinion on June 3, 1999. Brown then filed a sec-
ond amended habeas petition in district court in August 1999.
The district court held an evidentiary hearing on two of
Brown’s claims involving penalty phase ineffective assistance
of counsel and then denied relief on all grounds.
The district court granted a COA on two ineffective assis-
tance of counsel issues—Claim 20, subparts (B) and (C)—and
denied Brown’s motion to expand the certificate. In an order
filed May 15, 2007, we expanded the COA to include
Brown’s Claim 20(A) (an additional claim of ineffective
assistance) and Claim 38 (a claim that lethal injection violates
the Eighth Amendment).
STANDARD OF REVIEW
The district court’s dismissal of the petition for a writ of
habeas corpus is reviewed de novo. Avila v. Galaza, 297 F.3d
911, 914 n.1 (9th Cir. 2002). The district court’s findings of
fact are reviewed for clear error. Allen v. Woodford, 395 F.3d
979, 992 (9th Cir. 2005).
Because Brown’s federal habeas petition was filed after
April 1, 1996, his action is governed by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under
BROWN v. ORNOSKI 12613
AEDPA, we defer to the last reasoned judgment by the state
courts and grant habeas relief only if the state decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States” or the decision “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the state court proceeding.” 28 U.S.C.
§ 2254(d). To grant relief, we must determine that the state
court decision was “ ‘not only erroneous, but objectively
unreasonable.’ ” Middleton v. McNeil, 541 U.S. 433, 436
(2004) (quoting Yarborough v. Gentry, 540 U.S. 1, 5 (2003)
(per curiam)).
When the state court decides a claim on the merits, but does
not provide the reasoning for its decision, we undertake an
independent review of the record before that state court to
determine whether the state court decision was objectively
unreasonable. See Reynoso v. Giurbino, 462 F.3d 1099, 1109
(9th Cir. 2006); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000). This review “is not de novo review of the constitu-
tional issue, but rather, the only method by which we can
determine whether a silent state court decision is objectively
unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th
Cir. 2003).
The state court decision is reviewed under the clearly estab-
lished law at the time of the state court decision. Stokes v.
Schriro, 465 F.3d 397, 401-02 (9th Cir. 2006). Clearly estab-
lished federal law as determined by the Supreme Court
includes only “ ‘the holdings, as opposed to dicta, of [the
Supreme] Court’s decisions.’ ” Carey v. Musladin, 127 S. Ct.
649, 653 (2006) (quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
DISCUSSION
I. Penalty Phase Ineffective Assistance of Counsel1
1
The state argues that in evaluating this claim, this court should not con-
sider any of the evidence adduced at the district court’s evidentiary hear-
12614 BROWN v. ORNOSKI
A. Legal Standard
In addition to the deference granted to the state court’s
decision under AEDPA, we review ineffective assistance of
counsel claims in the deferential light of Strickland v. Wash-
ington, 466 U.S. 668 (1984). We must “indulge a strong pre-
sumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689. To succeed on his claim, Brown must establish that
his counsel’s conduct fell below an objective standard of rea-
sonableness and that, but for counsel’s unprofessional errors,
there is a reasonable probability that the result of the proceed-
ing would have been different. Id. at 687, 694.
B. Claim 20(A)
Brown alleges his counsel was ineffective for failing ade-
quately to prepare his mental health expert, Dr. Summerour,
to testify. Brown contends that because Dr. Summerour had
developed negative information about Brown that could be
exposed during cross-examination, his counsel, Mr. Myers,
should not have called Dr. Summerour to testify at all.
The bulk of the information to which Brown objects came
from a life history that Dr. Summerour asked Brown to pre-
pare to aid in understanding his psychological makeup. In the
life history, Brown described his thoughts during the prior
rape of Kelly Porterfield. Brown related such thoughts as
“why should I let this grand opportunity go to waste” when
ing, unless this court first determines that the California Supreme Court’s
decision was an unreasonable application of clearly established federal
law, as determined by the Supreme Court. We need not address this issue
because we conclude that even considering the additional information
presented in district court, Brown’s claim still fails.
BROWN v. ORNOSKI 12615
he encountered Kelly in the home and “what the hell” when
deciding whether to ejaculate inside her. Brown’s history also
described the rape itself, indicating that “[w]hen I got ready
to ejaculate, her body motions changed and she was like giv-
ing in,” and “I asked her to put her leg around me and she
did.”
The relevant question is therefore whether reasonable coun-
sel, knowing the risk that this information would be brought
to light, would still call Dr. Summerour to testify. Although
Myers was clearly risking exposing this negative information
to the jury, the jury already knew about the Porterfield rape
from Kelly’s testimony. Myers needed at least to attempt to
offer some explanation to the jury for both the Susan Jordan
rape/murder and the prior rape of Kelly Porterfield.
In the penalty phase, the government pointed out that
Brown had not murdered Kelly Porterfield and had wound up
going to prison for that rape. The prosecutor suggested that
Brown learned from this mistake and murdered Susan Jordan
so there would be no witnesses to his crime. Dr. Summerour
provided some potentially beneficial information to dispel this
suggestion. Dr. Summerour concluded that Brown did not
have a sense of what is normal in the way of sexual attraction
and behavior, and that Brown’s problems may be partially
attributable to his mother, who had both physically and emo-
tionally abused him. Dr. Summerour indicated Brown had
complained his mother had spanked him so severely he could
not wear shorts to gym class. Dr. Summerour also testified
that Brown’s mother had told Brown that sex was dirty and
that he was not supposed to do “dirty things” with girls or his
fingers would fall off and one of his legs would get shorter.
Brown apparently had an uncle with some missing fingers and
believed this was what had happened to him.
Dr. Summerour explained that Brown suffered from severe
sexual dysfunction and was not able to have normal sexual
relations, being able to complete the act only if either he or
12616 BROWN v. ORNOSKI
the other person were completely in control. Dr. Summerour
also testified that Brown was basically in a state of arrested
development sexually, putting him roughly in an adolescent
stage, and that this probably explained his interest in young
girls.
Dr. Summerour also opined that Brown was not “antiso-
cial” or “sociopathic,” but actually could feel shame and
remorse for his actions, and that Brown did hold to some of
society’s values, such as working and education. Dr. Sum-
merour indicated that Brown’s feelings of shame were the
reason why Brown could not confront his victims. For exam-
ple, in the Kelly Porterfield rape trial, Brown had initially
pled not guilty, but when the time came for Kelly to testify,
Brown could not face her and pled guilty. Similarly, in the
penalty phase of this case, Brown refused to be present in the
courtroom when Kelly testified, and when Brown himself was
called to testify, he expressed regret that Kelly had suffered.
Dr. Summerour opined that Brown had killed Susan Jordan
out of shame for his actions and that Brown had left her face
down in the dirt so that he did not have to face her.
In addition, Dr. Summerour opined that Brown was suffer-
ing from a narcissistic personality disorder. Dr. Summerour
explained that this was an exaggerated self-love, which was
usually a compensation for feelings of inadequacy (in
Brown’s case, sexual impotency). He indicated that narcissis-
tic people often have a rich fantasy life and, in Brown’s case,
Brown imagined that he could somehow make things right
with Kelly Porterfield, make her fall in love with him, and
even marry him. Dr. Summerour explained that this disorder
may also have been why he made the phone calls on the eve-
ning of the murder — i.e., to get noticed and to be caught. Dr.
Summerour further testified that Brown had not received any
treatment for his sexual disorders while in prison for the
Porterfield rape.
[1] Although the picture painted by Dr. Summerour is not
a pretty one, it is significantly more sympathetic than the one
BROWN v. ORNOSKI 12617
portrayed by the government. Faced with horrific crimes
against teenage girls, it was not unreasonable for Myers to
conclude that some explanation that presented Brown as a
troubled individual, rather than a ruthless killer seeking to
avoid capture and compound the victim’s family’s pain, might
give Brown some hope for a life sentence.
[2] Myers himself testifies that he would do things differ-
ently if given a chance today but that, at the time, he believed
Dr. Summerour was capable, had a beneficial opinion about
Brown, and that perhaps his analysis would help the jury “see
Mr. Brown as human and might result in their showing some
mercy.” We do not judge counsel’s actions through the
twenty-twenty lens of hindsight, Edwards v. Lamarque, 475
F.3d 1121, 1127 (9th Cir. 2007) (en banc), and recognize
there are many different reasonable ways to try a case, id. at
1128. Although Myers’s decision to put Dr. Summerour on
the stand came with some risks, it came with benefits to
Brown as well, in an attempt to explain the genesis of his
behavior and portray him as more human and sympathetic to
the jury. These benefits were available only if Dr. Summerour
were called. We therefore agree with the district court that
Myers’s decision to have Dr. Summerour testify “might be
considered sound trial strategy,” Strickland, 466 U.S. at 689,
as a reasonable attorney could conclude that the positive out-
weighed the negative:
As the Court has previously ruled, counsel made a
reasonable strategic decision to present Dr. Sum-
merour’s opinions to the jury despite the baggage
involved. Summerour’s testimony was a major part
of the presentation in mitigation, portraying Peti-
tioner as an inhibited, sad figure with a fear of
women rather than as a vicious predator. The choice
to depict him as an ill man, at the mercy of his com-
plexes, was a reasonable strategic choice to try to
earn him sympathy and mercy.
12618 BROWN v. ORNOSKI
As such, we cannot say that it was objectively unreasonable
for the California Supreme Court to conclude Brown had not
satisfied the requirements of Strickland. We therefore affirm
the district court’s denial of Claim 20(A).
C. Claims 20(B) & (C)
Brown’s other ineffective assistance claims are so inter-
twined that they are best discussed together. Brown contends
that Myers was ineffective in the penalty phase because he
failed to conduct an adequate background investigation and
because, if this additional information had been presented to
a competently trained neuropsychologist (as opposed to a psy-
chiatrist), such an expert could have presented a more com-
pelling case to the jury.
1. Adequacy of Investigation
[3] “It is imperative that all relevant mitigating information
be unearthed for consideration at the capital sentencing
phase.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.
1999). In numerous cases, this court and the Supreme Court
have explained and reiterated this high standard for investiga-
tion in capital cases. See, e.g., Wiggins v. Smith, 539 U.S. 510,
533-34 (2003); Williams, 529 U.S. at 397; Stankewitz v.
Woodford, 365 F.3d 706, 719 (9th Cir. 2004); Wallace v.
Stewart, 184 F.3d 1112, 1116 (9th Cir. 1999).
Brown contends that Myers fell below this standard
because he failed to conduct an adequate background investi-
gation for the penalty phase. Myers interviewed Brown and
numerous family members about Brown’s childhood, but did
not specifically ask any of them about physical abuse. Myers
also did not obtain any of Brown’s military records, although
Brown indicated (and testified at the penalty phase) that he
had been disciplined for impersonating an officer. In addition,
Myers did not obtain any of Brown’s high school or college
records, relying on his impression that Brown was of normal
BROWN v. ORNOSKI 12619
literacy based on his ability to communicate, as well as the
life history Brown wrote for Dr. Summerour.
Brown argues that a more complete investigation would
have revealed that, while living with his great aunt for a year
or so around third grade, he (and his siblings) were beaten
with a broom handle. Brown’s military records reveal that he
was disciplined for being absent without leave (“AWOL”),
but do not indicate he had impersonated an officer. Brown’s
school transcripts reveal that he was doing rather poorly in
high school and that, although he had enrolled in a local com-
munity college, he had never completed a course. We con-
sider each of Brown’s allegations of deficiency in turn and in
relation to their potential impact on the sentencing proceed-
ing.
2. Additional Abuse by Aunt
[4] Even assuming Brown is correct that his counsel was
ineffective in failing to investigate childhood abuse, Brown
does not explain how the additional information about abuse
by his aunt could have altered the outcome of his penalty
phase hearing. To support his claim, he offers only his own
declaration that his aunt “used to beat me and all of the kids
with a broom handle. She was vicious.” Brown provides no
specifics as to the severity, duration, or frequency of these
beatings, nor does he offer the testimony of any family mem-
ber to corroborate his allegation.
Although childhood abuse can certainly constitute a miti-
gating factor, the jury in this case had already heard through
Dr. Summerour that Brown claimed he had been severely
spanked by his mother as a child — to the point of not being
able to expose his legs in gym class — and how her com-
ments to him about sex may have negatively impacted his
sexual development and resulted in his sexual dysfunction.
When asked about the alleged additional abuse by the aunt in
a deposition, Dr. Summerour explained that this was some-
12620 BROWN v. ORNOSKI
thing he would have probably told the jury about, to addition-
ally explain the etiology of Brown’s behaviors and problems,
but that the information would not have altered his basic diag-
nosis.
The state, on the other hand, had evidence that Brown had
recently raped another young girl [Kelly Porterfield] and had
also been involved in a voyeuristic sexual incident with a 12-
year-old girl before that. The rape and murder of Susan Jor-
dan was bad enough by itself, but it was also coupled with
taunting phone calls to torment her family. The jury deliber-
ated less than three hours before reaching a death verdict.
[5] At best, the additional information about childhood
abuse would have probably bolstered Summerour’s diagnosis,
but in light of the other information before the jury, there is
no reasonable probability that this information — particularly
in the vague manner presented by Brown — could have
resulted in a different outcome of the penalty phase of the
trial.
3. Military Records
[6] Brown also argues that he was prejudiced by Myers’s
failure to obtain his military records because the jury was
wrongly informed (by Brown) that he was disciplined for a
more severe offense than a simple AWOL. Even assuming
Myers was deficient in failing to verify Brown’s account,
Brown again cannot demonstrate prejudice. Brown’s explana-
tion at trial was that he impersonated an officer as a joke on
new recruits and that others played along with it. Thus, the
impersonation was not portrayed to be a “severe” offense to
the jury. Moreover, in light of Brown’s serious crimes that
were the true focus of the penalty phase, there is no reason-
able probability of a different outcome if the jury had known
BROWN v. ORNOSKI 12621
that Brown was only disciplined for being AWOL instead of
for impersonating an officer.2
4. School Records
Brown’s final claim is that his counsel should have
obtained his school records, which would have revealed poor
performance and, in turn, identified the need for psychologi-
cal testing, which would have revealed that Brown suffered
from dyslexia and attention deficit disorder (“ADD”). As
explained by Brown’s new expert, Dr. Stotland, in his decla-
ration and at the evidentiary hearing, Brown’s attention deficit
affects his learning, behavior, and decision-making, making
him impulsive. Dr. Stotland opines that Brown responds to
“stressful or complicated circumstances by repeating or
escalating his behavioral pattern even when his actions are
inappropriate or harmful,” and that Brown has “severe diffi-
culty inhibiting inappropriate behavior.”
In his deposition, Dr. Summerour — Brown’s trial expert
— explained that he did not pick up on Brown’s condition
based on his meetings with Brown or his review of Brown’s
life history, but that learning problems or other problems in
the classroom might have alerted him to the possibility of
ADD. He also agreed that ADD could have contributed to
impulse control problems and heightened frustration. Dr.
Summerour also testified that if he had known Brown suf-
fered from learning disabilities or ADD, he would have dis-
closed this to the jury, even though it would not have altered
his ultimate conclusions or diagnosis.
[7] Brown therefore has a good argument that his counsel’s
performance was deficient by failing adequately to investigate
Brown’s academic background and provide this relevant
2
Curiously, even at the federal court evidentiary hearing, Brown contin-
ued to assert that he had been disciplined for impersonating an officer,
notwithstanding the now-present military records.
12622 BROWN v. ORNOSKI
information to Dr. Summerour. See Williams v. Taylor, 529
U.S. 362, 370 (2000); Mayfield v. Woodford, 270 F.3d 915,
928 (9th Cir. 2001); Caro v. Woodford, 280 F.3d 1247 (9th
Cir. 2002). Once again, however, the question of prejudice
looms: was there a reasonable probability of a different out-
come if Brown’s school records had been available at the time
of the penalty phase?
[8] It is not clear whether, even if Myers had obtained the
school records and provided them to Dr. Summerour (or any
other mental health expert), Brown would have actually been
diagnosed with ADD. Dr. Summerour testified that at the time
of Brown’s trial in the early 1980’s, ADD was considered a
childhood disorder that was outgrown by adulthood. Thus,
although Dr. Summerour testified he could have probably
identified ADD today using current tests, in the early 1980’s,
the diagnosis “depended more upon observation of behavior
problems in children.” Dr. Stotland’s diagnosis of Brown in
1996-97 may be correct, but this does not mean that counsel’s
failure to obtain the academic records in 1981-82 actually hin-
dered the penalty phase mitigation presentation.
Even if Brown’s ADD could have been diagnosed in the
early 1980’s, there was little additional benefit to be gained
from Dr. Stotland’s testimony. In large part, both Dr. Sum-
merour and Dr. Stotland agreed that Brown had severe sexual
dysfunction that had stemmed from negative interactions with
his own mother and other women, and this was probably the
most explanatory or sympathetic evidence that could be put
before the jury. Dr. Stotland described Brown as having
“obsessive-compulsive” behavior, but also agreed that Dr.
Summerour’s diagnosis of narcissistic personality disorder
was not unreasonable and that Brown definitely had a prob-
lem with narcissistic personality traits. Dr. Summerour also
testified during the penalty phase that Brown was immature
BROWN v. ORNOSKI 12623
and had impulse control problems, which was consistent with
Dr. Stotland’s later observations.3
Even if Dr. Stotland could have, as Brown claims, pres-
ented a more “cohesive” explanation of Brown’s problems to
the jury, Brown had a mountain of aggravation to overcome,
including the prior rape of a young girl, the rape and murder
of the young victim in this case, and his tormenting phone
calls to the family following the event. The jury was also
aware from Brown’s own testimony that Brown professed
remorse over the prior rape of Kelly Porterfield, but remained
strangely silent as to Susan Jordan’s rape or murder.
[9] To be sure, horrific facts do not preclude a finding of
prejudice. See, e.g., Smith v. Stewart, 189 F.3d 1004, 1013
(9th Cir. 1999); Mak v. Bodgett, 970 F.2d 614, 620-21 (9th
Cir. 1992). But giving the state court decision the deference
it is due under AEDPA, we cannot say that the California
Supreme Court was objectively unreasonable in concluding
that Brown had not satisfied both prongs of Strickland. Dys-
lexia and ADD — assuming they could have even been diag-
nosed in adults in the early 1980’s — are somewhat common
disorders; although they add quantity to the mitigation case,
they add little in terms of quality. It is doubtful that this infor-
mation, even when explained by Dr. Stotland, would have
generated significantly more sympathy than the explanation
3
Indeed, we note that it is possible that Dr. Stotland — armed with all
the information Brown says should have been discovered — could have
actually been a more damaging witness than Dr. Summerour. Dr. Stotland
admitted during the evidentiary hearing that Brown definitely had antiso-
cial traits and that the telephone calls to Susan’s family after the murder
were consistent with an antisocial desire to torture someone, whereas Dr.
Summerour consistently testified that Brown was not antisocial or socio-
pathic. Dr. Stotland seemed to opine that the murder occurred as a result
of escalating, inappropriate reactions to the complicated sexual situation
Brown was involved in, and that Brown may have had anger against
women. Dr. Summerour, on the other hand, testified that Brown was moti-
vated by sexual urges rather than violence toward women, and explained
the murder as a consequence of shame.
12624 BROWN v. ORNOSKI
of Brown’s neurosis that was already given by Dr. Summerour,4
or, for that matter, that either of these explanations was going
to overcome the substantial aggravating case. We therefore
affirm the district court’s denial of the writ on this claim.
II. Cruel and Unusual Punishment
Brown also argues that lethal injection constitutes cruel and
unusual punishment in violation of the Eighth Amendment.
He alleges in his habeas petition that “lethal injection violates
the ban on cruel and unusual punishment because it does not
comport with evolving standards of decency, and it inflicts
pain that is cruel, wanton, and unnecessary.”
Brown raised this general challenge to lethal injection
before the California Supreme Court in his habeas petition,
and it was denied on the merits. In district court, Brown
adduced no evidence to further this claim and opted not to
brief the issue, essentially conceding it was foreclosed based
on “the current state of the law and record in the case.”
[10] On appeal, however, Brown attempts to rely on two
recent California district court decisions holding that the cur-
rent lethal injection protocol utilized by California violates the
Eighth Amendment: Morales v. Tilton, 465 F. Supp. 2d 972(N.D. Cal. 2006) and Morales v. Hickman, 415 F. Supp. 2d
1037 (N.D. Cal. 2006). These cases are actually § 1983 cases,
and do not hold that lethal injection is cruel and unusual in
and of itself (as Brown’s petition alleges), but only that the
protocol as currently implemented in California may violate
the Eighth Amendment because the state does not have proce-
4
In his deposition, Dr. Summerour opined: “[I]n this case, I felt what
was important was that the man had evidence of shame and guilt and that
he hadn’t had the benefit of much treatment. And that was mitigating and
that was sympathetic. I think that’s much more sympathetic in my opinion
than saying he has a learning disorder and has attention deficit disorder.
That’s just my opinion.”
BROWN v. ORNOSKI 12625
dures in place to insure that inmates are unconscious (from an
initial and rather painless injection of sodium thiopental) prior
to injecting fatal doses of pancuronium bromide and potas-
sium chloride.
[11] Under AEDPA, however, we must analyze the Califor-
nia court’s conclusion in light of the clearly established fed-
eral law at the time of the state court decision. Stokes v.
Schriro, 465 F.3d 397, 401-02 (9th Cir. 2006). There is no
Supreme Court precedent holding lethal injection to be uncon-
stitutional, and there certainly was none in existence at the
time of the California Supreme Court’s denial of Brown’s
claim in 1999. Because on this record Brown cannot demon-
strate that the California Supreme Court’s denial was an
objectively unreasonable application of clearly established
Supreme Court precedent, we affirm the district court’s denial
of the writ on this claim.5
III. Uncertified Issues
A. Standard of Review
After the district court issued the COA as to Claims 20(B)
and (C), Brown asked this court to expand the COA to include
several additional claims. A motions panel denied this
request, but indicated Brown could brief these issues to the
merits panel, which he has done. We construe this additional
briefing as a further motion to expand the COA. Circuit Rule
22-1(e). To receive a COA on any of these issues, Brown
must demonstrate that “reasonable jurists would find the dis-
5
We do not view Brown’s habeas petition as stating an “as applied”
challenge to California’s lethal injection protocol. Brown is free, however,
to challenge the particular protocol used by the State of California in a
§ 1983 action, as did the petitioner in Morales, and need not raise this
issue in habeas proceedings for fear of waiver. See Hill v. McDonough,
126 S. Ct. 2096, 2102 (2006) (holding “as applied” challenge to a particu-
lar lethal injection protocol can be brought as a § 1983 action and is not
barred as a second or successive habeas petition).
12626 BROWN v. ORNOSKI
trict court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
B. Jurors Overhearing Comments Regarding Case
Brown claims he was deprived of his Fifth, Sixth, Eighth,
and Fourteenth Amendment rights because the state trial court
failed to declare a mistrial after four jurors overheard com-
ments regarding the case. It appears that during the guilt
phase of the trial, four jurors went to lunch together at a local
fast food restaurant. After they sat down, another group sat
down near them, which may have included some members of
Brown’s family and/or friends. This second group was talking
very loudly and made comments about the case the jurors
could overhear. The four jurors finished their lunch as quickly
as possible and did not discuss the case amongst themselves.
They returned to the courtroom and informed the judge what
had happened.
The judge communicated ex parte with the four jurors, and
there is no transcript of what occurred. He did, however, have
the jurors make “little reports” about what happened, which
were handwritten notes stapled to the minute order for Febru-
ary 1, 1982. These notes tell the same basic story — the group
went to eat, the second group sat down and was talking nois-
ily about the case, so the jurors decided to ignore them and
finish lunch as quickly as possible. Only one note appears to
describe the subject matter the other group was discussing —
“were witnesses expert or not, did kids [sic] testimony count,
etc.”
Following the incident, the court admonished the entire
jury on the record:
[I]t has come to my attention that from time to time
you might be placed in a position where there is
somebody in the vicinity talking about the case and
you can correctly ignore it and, of course, if you can,
BROWN v. ORNOSKI 12627
to avoid hearing anything that you can and if you
can, simply do your best to ignore it and try to treat
it as though you never heard anything. Put it out of
your mind. Stay with just what is received here in
court.
After the jury was dismissed for the day, the court informed
trial counsel what had occurred and made the notes available
for them to review:
There are some statements here from some of the
jurors and I think probably the best thing to do is
make them available for counsel at their conve-
nience. Some of the jurors heard some others talking
regarding the case and they ignored it and I have
[sic] them make a little report and so I will make that
available for counsel at your convenience . . . .
The record does not indicate that either counsel asked to
examine the jurors in more detail.
Brown now argues that the trial court erred by failing to
declare a mistrial sua sponte. Although a more developed
record would certainly make appellate review easier, the evi-
dence that was submitted about the incident in the form of the
“little reports” suggests that the encounter was relatively brief
and that the jurors did their best to ignore the comments and
minimize their exposure.
[12] The California Supreme Court was not objectively
unreasonable in denying Brown’s claim on the merits,
because Brown has not demonstrated that the alleged error
had a “substantial and injurious effect on the verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993). The jurors
promptly reported the incident to the trial judge and did not
discuss any comments they may have overheard among them-
selves. The trial court properly instructed the jury to disregard
any extraneous comments and to decide the case based only
12628 BROWN v. ORNOSKI
on the evidence at trial; juries are presumed to follow the
court’s instructions. Weeks v. Angelone, 528 U.S. 225, 234
(2000). Furthermore, considering the eye-witness testimony
and the extensive evidence found at Brown’s home and work
locker linking him to the crime, the guilt phase evidence
against Brown was overwhelming. Because the district court’s
assessment of this constitutional claim was neither wrong nor
debatable, we deny the COA on this claim.
C. Other Claims6
[13] In his 39th Claim for relief, Brown argues that the
death penalty is unconstitutionally arbitrary and that a defen-
dant’s socio-economic background influences who is sen-
tenced to death. In his 40th Claim for relief, he argues that the
death penalty is inherently unconstitutional because the con-
sistency required by Furman v. Georgia, 408 U.S. 238 (1972),
and the individual analysis required by Lockett v. Ohio, 438
U.S. 586 (1978), are irreconcilable. He concedes, however,
that there is no valid legal basis for either claim under existing
law. We therefore deny the COA on these claims as well
because, by his own admission, Brown cannot demonstrate
any clearly established Supreme Court precedent that was
misapplied by the California state court in denying his peti-
tion.
AFFIRMED.
6
At oral argument, Brown withdrew his request for a COA on Claim 35
— improper excusal of conscientious jurors — in light of the Supreme
Court’s recent decision in Uttecht v. Brown, 127 S. Ct. 2218 (2007).