Paul Browning v. Renee Baker

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL L. BROWNING, No. 15-99002
Petitioner-Appellant,
D.C. No.
v. 3:05-cv-00087-
RCJ-WGC
RENEE BAKER, Warden; ADAM PAUL
LAXALT, Attorney General of the
State of Nevada, ORDER AND
Respondents-Appellees. AMENDED
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Argued and Submitted March 16, 2017
San Francisco, California
Filed September 20, 2017
Amended November 3, 2017
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Consuelo M. Callahan, Circuit Judges.
Order;
Opinion by Judge Gould;
Dissent by Judge Callahan
2 BROWNING V. BAKER
SUMMARY*
Habeas Corpus
The panel filed an order in which (1) Judges Wardlaw and
Gould amended their September 20, 2017, majority opinion
in Paul Browning’s appeal from the denial of his habeas
corpus petition; (2) Judge Callahan objected to any basis for
expanding the COA, and stood by her dissent; and (3) the
panel denied a Petition for Panel Rehearing.
In the opinion, the panel affirmed the district court’s
denial of Browning’s habeas corpus petition as to his escape
conviction; reversed the district court’s denial of the petition
as to Browning’s convictions of burglary, robbery with the
use of a deadly weapon, and murder with the use of a deadly
weapon; and remanded for further proceedings.
Browning contended that the prosecutor withheld material
evidence favorable to the defense in violation of his
constitutional rights as described in Brady v. Maryland, 373
U.S. 83 (1963), and presented false and misleading evidence
at trial in violation of his constitutional rights as described in
Napue v. Illinois, 360 U.S. 264 (1959). The panel held that
an officer’s shoeprint observation, a witness’s expectation of
a benefit for his testimony, and the precise description of the
assailant’s hairstyle received from the victim were all
favorable to Browning under Brady. The panel held that
Browning’s Napue claim fails because it was not clearly
established at the time of Supreme Court of Nevada’s
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BROWNING V. BAKER 3
decision that a police officer’s knowledge of false or
misleading testimony would be imputed to the prosecution.
For the Brady evidence, except for the witness’s expectation
of a benefit for his testimony, the Supreme Court of Nevada
did not explicitly address whether this evidence was favorable
to Browning. The panel held that had the Supreme Court of
Nevada not viewed the evidence as favorable to the defense,
it would have been an unreasonable application of Supreme
Court precedent. The panel also held that it was an
objectively unreasonable application of Supreme Court
precedent to hold that the Brady materiality standard was not
met here, and therefore concluded that the district court
should have granted habeas relief on Browning’s Brady
claims.
Browning also contended that he was denied his right to
effective assistance of trial counsel due to inadequate pretrial
investigation and preparation. Granting Browning’s motion
to expand the certificate of appealability, and explaining that
the court considers counsel’s conduct as a whole to determine
whether it was constitutionally adequate, the panel wrote that
the district court erred by limiting the COA to particular
“claims” that counsel’s failure to investigate particular
avenues of evidence were deficient. The panel held that
Browning’s trial counsel unreasonably failed to investigate
Browning’s case, and that the Supreme Court of Nevada
unreasonably concluded that Browning failed to prove just
that. The panel amended the opinion to state that because
Browning’s ineffective of assistance of counsel claims
succeed on other grounds, it need not address other alleged
deficiencies argued by Browning in support of an expansion
of the COA. The panel held that the Supreme Court of
Nevada’s conclusion that any deficient performance did not
prejudice Browning was objectively unreasonable.
4 BROWNING V. BAKER
The panel concluded that Browning is entitled to a writ of
habeas corpus with respect to his convictions of burglary,
robbery with the use of a deadly weapon, and murder with the
use of a deadly weapon. The panel wrote that Browning is
not entitled to relief as to his escape conviction because he
offered no reason to call its validity into question.
Dissenting in part, Judge Callahan wrote that a
meaningful application of the deferential standard of review
under AEDPA compels the conclusion that the Nevada
Supreme Court was not objectively unreasonable in rejecting
Browning’s ineffective assistance of counsel claim as well as
his claims under Brady and Napue.
COUNSEL
Timothy K. Ford (argued) and Tiffany Cartwright,
MacDonald Hoague & Bayless, Seattle, Washington; Mark
A. Larrañaga and Jacqueline K. Walsh, Walsh & Larrañaga,
Seattle, Washington; for Petitioner-Appellant.
Victor-Hugo Schulze II (argued), Senior Deputy Attorney
General; Thom Gover, Chief Deputy Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Las Vegas, Nevada; for Respondents-Appellees.
Maureen P. Alger and Lori R. Mason, Cooley LLP, Palo Alto,
California; Reed A. Smith, Cooley LLP, New York, New
York; for Amicus Curiae The Innocence Network.
BROWNING V. BAKER 5
ORDER
Judges Wardlaw and Gould AMEND their majority
opinion in the above captioned case filed September 20, 2017
as follows:
The paragraph on page 55 of the slip opinion that begins
with the sentence shall be deleted in its entirety and replaced
with the following language:

Existing footnote 19 shall be inserted in its entirety after
in the above-inserted text.
Judge Callahan objects to any basis for expanding the
COA, does not concur in amending the majority opinion, and
stands by her dissent.
Judges Wardlaw, Gould, and Callahan vote to deny the
Petition for Panel Rehearing.
The Petition for Panel Rehearing is DENIED. No further
petitions for panel rehearing or rehearing en banc will be
accepted.
IT IS SO ORDERED.
6 BROWNING V. BAKER
OPINION
GOULD, Circuit Judge:
Nevada state prisoner Paul Browning appeals the district
court’s denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2254. In 1986, a Nevada jury found Browning
guilty of four crimes involving the robbery and murder of
Hugo Elsen in a Las Vegas jewelry store. The jury sentenced
Browning to death.
In his habeas corpus petition, Browning challenges his
convictions. He asserts that he is entitled to habeas relief on
two grounds: prosecutorial misconduct and ineffective
assistance of trial counsel (“IAC”). Browning contends that
the prosecutor in his case withheld material evidence
favorable to the defense and presented false and misleading
evidence at trial. He also contends that his trial counsel’s
pretrial investigation and preparation were constitutionally
inadequate. The Supreme Court of Nevada previously
rejected these claims.
Under this procedural posture, a federal court’s role is
limited. Our role is only “to guard against extreme
malfunctions in the state criminal justice systems.” Davis v.
Ayala, 135 S. Ct. 2187, 2202 (2015) (internal quotation marks
omitted). In Paul Browning’s case, a mixture of disturbing
prosecutorial misconduct and woefully inadequate assistance
of counsel produced just that. Because the Supreme Court of
Nevada unreasonably applied clearly established Supreme
Court precedent in denying some of Browning’s claims, we
reverse the district court’s denial of habeas relief and remand
for further proceedings.
BROWNING V. BAKER 7
I
We start with the factual background: Between 4:00 p.m.
and 4:30 p.m. on November 8, 1985, Hugo Elsen was stabbed
to death during a robbery of the jewelry store he operated
with his wife, Josy Elsen. Soon after this brutal murder,
police officers arrested Paul Browning as the primary suspect.
Browning was staying at the Normandy Motel, located a few
blocks from the Elsens’ store. The state charged Browning
with (1) burglary, (2) robbery with the use of a deadly
weapon, (3) murder with the use of a deadly weapon, and
(4) escape. Because the public defenders’ office was
representing a potential witness in Browning’s case, the court
appointed former Clark County prosecutor Randall Pike to
represent Browning. At the time of his appointment, Pike had
been practicing as a defense attorney for less than a year. He
represented in a state habeas proceeding that Browning may
have been his first capital defendant.1
Browning pleaded not guilty. The court scheduled trial
for March 3, 1986. A week before that date, the prosecution
requested a continuance, explaining that it was not prepared
to begin trial because someone in its office had written the
wrong trial date in the case file. Over the defense’s objection,
the court granted the continuance. Because of the delay,
Browning sought dismissal of his case from the Supreme
Court of Nevada and federal court. He was unsuccessful. In
the meantime, Pike lost contact with Browning’s girlfriend,
Marsha Gaylord—an essential witness for Browning’s trial
defense, according to Pike. Trial commenced on December
9, 1986, with Gaylord still unreachable.
1
In contrast, Pike had prosecuted four death penalty cases in his three
years working for the Clark County district attorney.
8 BROWNING V. BAKER
A
The prosecution’s first witness was Josy Elsen, the spouse
of the victim. Josy testified that in the late afternoon of
November 8, 1985, she was napping in a back room of the
jewelry store when she heard commotion in the showroom.
She awoke, entered the showroom, and saw a black man with
a blue cap holding a knife and kneeling over Hugo. Hugo and
the assailant were in the opposite corner of the room, and a
showcase stood between them and Josy. All Josy could see
was the side of the assailant’s head and hair that “puffed” out
of the back of his cap. Josy at once ran through the back door
of the jewelry store, knocked on the window of an office next
door, and asked the occupants to call the police. Debra Coe,
an employee in that office, then accompanied Josy back into
the jewelry store through the back entrance; victim Hugo was
lying in the same corner in a pool of blood, but the assailant
was gone. Later that night, police brought spouse Josy to a
station, where she positively identified many pieces of
jewelry as coming from her store. At trial, Josy identified a
picture of a blue hat with the word “Hollywood” written on
the front as the one she saw the assailant wearing in the
showroom.
Josy testified that in December 1985, a month after
Hugo’s murder, police called her back to the station and
presented her with a photographic lineup of twelve black
men. The officers placed Browning’s picture—taken in
November 1985—in the “#5” position. According to an
officer’s report, Josy “immediately” explained to the officers
that she thought she would not be able to identify the
assailant because “she only saw him for a very slight moment
from the side.” Nonetheless, Josy examined the photos and
stated that the men in photos #1, #6, and #11 had hair
BROWNING V. BAKER 9
“somewhat like” the assailant’s. She did not then indicate
any recognition of Browning’s photo. Yet at trial, when Josy
was asked to identify the man who had killed Hugo, she said
that, although she had a limited view of the assailant, she was
certain that it was Browning.
The prosecution also called a business neighbor and
witness, Debra Coe. Coe testified that when Josy Elsen
frantically arrived at Coe’s office, Coe ran to the front
window to see if she could see anyone leaving the Elsens’
store. Coe saw a man run by her office from the direction of
the jewelry shop, but later that day told the officers that the
man had not come out of the Elsens’ store and instead “must
have run past it.” She told the officers that it was “hard for
[her] to see how he could’ve come out of the door and was
running at the angles he was at.” She initially told the
officers that the man she saw was white, but in a later
interview the same day said he was “definitely black.” In the
interview, Coe stated, “when I see a black person, that they
all look the same.” At trial, Coe described the man as black,
about six feet tall and 27 years old, with a mustache and hair
sticking out about an inch beyond a blue cap. She also said
he was wearing Levi’s and a dark blue jacket. When asked at
trial if she truly believed that all black people “look the
same,” Coe said she did not. Coe admitted, however, that she
did not “really know any black persons personally.”
Coe testified that later on the evening of November 8, an
officer asked her to accompany him around the corner to
“identify the man that they had picked up.” Coe obliged, and
a minute or two later, an officer pulled up in a police vehicle.
The police first showed her someone whom Coe stated was
“definitely not” the man she had seen. The officers then
presented Browning, who was shirtless and in handcuffs.
10 BROWNING V. BAKER
Browning had a large Afro-style haircut. Coe indicated to the
officers that she “thought” Browning was the person she had
seen running by her office, but she “would have been able to
identify him better if he had the hat on and the jacket.”
According to Coe, during the showup, Browning’s hair was
“pressed down” as if he had been wearing a hat.
At trial, Coe testified that she was now “sure” Browning
was the man she had seen running by her office on November
8, 1985. When Pike asked her how, a year after her equivocal
identification on the night of the crime, she was so sure that
it was Browning that she had seen, Coe stated that she had
“had time to think about it.” Coe also identified the blue
“Hollywood” hat as the one worn by the man who ran by her
office.
The prosecution also called Charles Woods, who in 1985
operated a jewelry store three doors down from the Elsens’
store. Woods was standing outside his store with a friend
around 4:30 p.m. when he saw a man jogging towards him.
The man was not holding anything, and had no blood on him.
The man passed Woods within touching distance. Woods
told police that the man he saw was about six-feet tall, slim,
muscular, about 180 pounds, and was wearing dark pants, a
light-colored shirt, and a “darker color” hat. When shown a
picture of the Hollywood hat at trial, Woods said that it was
not the hat he saw the man wearing, which was more of a
“beret sort of thing.”
Woods testified that the officers at the scene asked him to
join Coe at the nearby corner to “stick around and identify”
a suspect. When police presented Woods with a shirtless and
handcuffed Browning, Woods identified Browning as the
man who ran by Woods earlier that day.
BROWNING V. BAKER 11
The prosecution then called Randy Wolfe. Randy and his
wife, Vanessa Wolfe, lived in the same motel where
Browning was staying. Randy testified that between
4:00 p.m. and 4:30 p.m. on November 8, 1985, he was
working on his landlady’s car when Browning yelled his
name from the motel’s upper level. Randy went upstairs and
found Browning in the Wolfes’ apartment sitting on the bed
and wearing a tan windbreaker and the Hollywood hat.
Jewelry had been dumped on the bed. According to Randy
Wolfe, Browning told Randy that he had just robbed a
jewelry store and thought he had killed someone. Browning
also told Randy that he planned to use the jewelry to get
Gaylord out of jail. Randy told Browning that he wanted
nothing to do with the murder, and was going to go finish
working on his landlady’s car and then get some heroin.
Browning asked if Randy would get some heroin for him too.
On his way down the stairs, Randy encountered Vanessa,
whom he instructed to keep Browning “cool” while Randy
found the police. Randy then located the crime scene and led
several officers back to his apartment. Randy testified that
when the officers got there, they promptly arrested Browning,
and that after they removed Browning from the apartment,
Randy found a cup under his sink filled with additional
jewelry.
Randy Wolfe made several admissions during his
testimony that bore on his credibility. He admitted that he
and Vanessa were addicted to heroin and cocaine, and that he
would break into cars to support their habits. He had prior
convictions for selling a controlled substance and prison
escape. He also admitted that he had kept some of the
jewelry he claimed he found under his sink, and lied during
Browning’s preliminary hearing by stating that he did not
keep any of it.
12 BROWNING V. BAKER
Before the time of Browning’s trial, Randy had been
charged with possession of stolen property, a charge
unrelated to the Elsens’ stolen jewelry. Prior to Randy’s
testimony at trial in Browning’s case, the state permitted
Randy to plead to a lesser charge of attempted possession of
stolen property, for which he faced one to five years in
prison. Despite Randy Wolfe’s failure to appear in court
almost thirty times in the past, he was released on his own
recognizance before Browning’s trial. Randy Wolfe testified,
however, that he had not received “anything” for his
testimony against Browning, and that no one had promised
that his sentence might be “diminished” if he testified. The
prosecutor in Browning’s case, Daniel Seaton, was not the
prosecutor in Randy’s case.
The prosecution next called Vanessa Wolfe. Around
1977, Vanessa and Gaylord, Browning’s girlfriend at the time
of the murder, had lived in southern California, where they
ran con games and “bilk[ed] people out of their money.” At
the time of Browning’s trial, Vanessa worked as a prostitute
in Las Vegas. On the afternoon of November 8, 1985,
Vanessa was bringing a client to the Wolfes’ apartment when
she encountered Randy on the stairs. Randy told Vanessa
about what Browning had done, and that Browning was going
to take Vanessa hostage if Randy called the police. Vanessa
then entered the apartment. Browning was inside, shaking
water off of a knife. The Hollywood hat and tan windbreaker
were on the floor. Browning instructed Vanessa to throw the
knife and hat on the roof, but instead she put the knife in a
pizza box under the stairs and threw the hat in a dumpster.
Police arrived soon after.
Officer David Radcliffe also testified for the prosecution.
He said that he arrived at the Elsens’ store to find Hugo Elsen
BROWNING V. BAKER 13
conscious, but in an “extremely serious” condition. Hugo
told Radcliffe that a black man wearing a blue baseball cap
had stabbed him. Radcliffe then joined some officers
standing outside of the storefront, and soon after, Randy
Wolfe approached him. Radcliffe had known Randy for
several years because Randy was a regular narcotics user.
Randy led Radcliffe and several other officers to Randy’s
apartment, which the officers forcibly entered. Inside, they
found Browning sitting on the corner of the bed. Pieces of
jewelry were scattered along the floor on the opposite side of
the room from the bed.
The prosecution also called several forensics specialists
to testify about evidence at the crime scene. Identification
specialist David Horn testified that three of the showcase
counters in the store had been “disturbed,” and that the
merchant-side sliding glass of one of the showcases had been
broken. Horn lifted “approximately twenty some odd”
fingerprints from the scene. Two were most relevant: one
from the top glass of one of the counters, and another from a
fragment of the counter’s broken sliding-glass door. A
different fingerprint examiner concluded that these two prints
matched Browning’s.
Horn also testified that he observed bloody tennis shoe-
style shoeprints leading away from the corner where Hugo
was lying and towards the store’s front door. After leaving
the scene, Horn compared the shoeprints to the loafers
Browning was wearing when he was arrested; they did not
match. Horn testified that paramedics and off-duty officers
often wear tennis shoes at crime scenes, so he did not think
any further investigation into the source of the shoeprints was
necessary.
14 BROWNING V. BAKER
State criminalist Minoru Aoki testified that Hugo had
Type B blood. Blood had been found on the tan jacket that
was lying on the floor in the Wolfes’ apartment, and it too
was type B. Aoki did not test Randy Wolfe or Vanessa
Wolfe’s blood type.
Pathologist Giles Green testified that the knife recovered
from the pizza box under the stairs at the Normandy Motel
was “consistent” with the wound configurations in Hugo’s
body, but “nothing about that knife t[old him] that the knife
made those wounds.”
Browning’s trial counsel, Randall Pike, called three
witnesses. First was Bradley Hoffman, who operated a store
two doors down from the Elsens’ store. Hoffman testified
that around 4:00 p.m. on the day of the crime, he saw a man
walking down the street towards the Elsens’ store. The man
was Cuban, “probably five seven, slight build,” and wearing
Levi’s jeans, the shirt that Hoffman vaguely recalled as plaid,
and a blue baseball cap. Later that night, officers brought
Hoffman to the showup with Coe and Woods, and presented
him with a shirtless Browning. Hoffman stated that
Browning’s hair, a “medium sized Afro,” did not appear as
though Browning had recently been wearing a hat. He also
stated at trial that the Hollywood hat was not the one worn by
the man he saw walking towards the Elsens’ store.
Pike also called Officer Gregory Branon, who testified
that he was “one of the first two officers” to arrive at the
scene. Branon received a description of the suspect: a “black
male, adult in his late twenties, wearing a blue baseball cap,
blue windbreaker-type jacket, blue Levi’s[,] . . . medium
complexioned, bore a mustache and what was described as a
BROWNING V. BAKER 15
shoulder length J[h]eri-type curl.” Pike did not ask Branon
who gave him that description.
Last, Pike called Annie Yates—a hair stylist—who
testified to the difference between a Jheri Curl (the assailant’s
hairstyle as described to Officer Branon), and an Afro
(Browning’s hairstyle on November 8, 1985). Yates stated
that a Jheri Curl requires the use of chemicals, whereas an
Afro does not. Pike presented Yates with the twelve-person
photographic array previously shown to Josy Elsen, which
had Browning at position #5. Yates stated that pictures #1,
#2, #4, and #10 had Jheri Curls.
In his closing, Seaton laid out his theory: Browning
robbed the jewelry store to bail Gaylord out of jail because he
relied on her prostitution income to feed his heroin addition.
Seaton’s closing argument was incendiary, but Pike rarely
objected. Seaton began by characterizing the presumption of
innocence as follows:
Now we are talking about that wonderful
constitutional element called the presumption
of innocence, we are now talking about
piercing that veil, dropping that facade
because, in fact, as a person sits in a
courtroom he may not be innocent. He may
be guilty.
[Browning] has the presumption of innocence.
And, of course, it is one when his guilt is
shown that the farce of that presumption is
known and it’s been done in this case.
16 BROWNING V. BAKER
Seaton gave the following description of Browning’s murder
of Hugo Elsen:
[Browning, t]his man whose girlfriend
prostituted for him so he could get drugs,
money to get drugs, this man who took heroin,
he wanted Randy Wolfe to get him to cop
some heroin for him after the murder. He shot
the life of Hugo Elsen right up his arm.
That’s what he was doing that day. That’s
what we have here.
Seaton also described Josy Elsen’s identification of Browning
at trial as “as good as you can ask for.” Anticipating that Pike
would argue that Browning’s hair on the night of the murder
(an Afro) did not match the assailant’s hairstyle as described
to Officer Branon (a Jheri Curl), Seaton explained that
Officer Branon received the description from “some white
person” who did not understand “the true definition” of a
Jheri Curl. Seaton concluded by saying that it was the jury’s
“duty to go out, decide that and come back in here and tell
[Browning] just exactly that, that he’s the one that has to pay
for these crimes.”
Pike’s closing argument set forth a theory that the
Wolfes’ friend, a Cuban man, committed the robbery-murder,
and the Wolfes were now framing Browning.
BROWNING V. BAKER 17
The jury found Browning guilty on all four counts2 and
sentenced him to death. Browning directly appealed to the
Supreme Court of Nevada, which affirmed. Browning v.
State, 757 P.2d 351 (Nev. 1988).
B
Browning filed a petition for a writ of habeas corpus in
Nevada state district court, arguing in relevant part that
Seaton had withheld exculpatory evidence from the defense
and that Pike was ineffective by failing to perform an
adequate investigation before trial. The petition included
three new pieces of evidence. First, the state stipulated that
post-conviction DNA analysis had proven that the blood on
the tan windbreaker found in the Wolfes’ apartment did not
belong to Hugo Elsen. Second, a forensics report indicated
that Hugo Elsen’s wounds did not “coherently coincide” with
the knife found in the pizza box under the stairs at the
Normandy Motel. Third, a forensics report suggested that the
bloody shoeprints were too large to belong to Josy Elsen or
Debra Coe.
The Nevada district court held an evidentiary hearing, at
which attorneys Jason Isaacs and Daniel Lamb represented
Browning. Robert Shomer, a forensic psychologist, testified
that Josy Elsen’s identification of Browning as the assailant
was questionable because (1) her in-court identification of
2
The prosecution also presented evidence that once Browning was
brought to the police station on the night of November 8, 1985, he escaped
from the interview room where he was being held. He was caught before
he left the police station building. As explained below, see Section V,
infra, because Browning’s petition provides no basis for challenging his
escape conviction, our analysis focuses only on his robbery- and murder-
related convictions.
18 BROWNING V. BAKER
Browning was 14 months after the incident; (2) the stress of
the moment might have made her memory more vivid, but no
more accurate; (3) the in-court identification was extremely
suggestive because Browning was the sole available
“choice”; (4) cross-racial identifications are unreliable (Josy
is white, Browning is black); and (5) Josy’s observation of
Browning’s picture during the photo array in December 1985
may have implanted Browning’s face in Josy’s memory and
prompted a false in-court identification. Shomer also
criticized Coe’s identification, explaining that (1) the 14-
month gap between Coe’s observations and the trial likely
distorted her memory; (2) Coe initially reported to the police
that the man she saw did not appear to come from the Elsens’
store, and Shomer suggested that Coe probably did not focus
intently on his characteristics; (3) Coe had reported to the
police that the man she saw was white, but one of the
officers’ statements to Coe that the suspect was black might
have impacted Coe’s memory; and (4) given the highly
suggestive procedures of the in-person showup on the night
of November 8, 1985, Coe’s identification was, at best,
equivocal. Finally, Shomer criticized Woods’s identification
because (1) Woods stated that he saw nothing notable about
the man who ran towards him on the afternoon of November
8, 1985, suggesting that Woods did not pay close attention to
the man’s appearance; and (2) the showup was particularly
suggestive in light of the officers’ telling Woods that they had
a suspect whom they wanted Woods to identify.
Browning’s counsel then called Michael Sweedo, a
fingerprint examiner and crime scene analyst, to give his
opinion on the officers’ forensic investigation. Sweedo
testified that Browning’s fingerprints on the showcase glass
could have been the result of Browning leaning over the case.
Sweedo noted that it was unusual that there were no other
BROWNING V. BAKER 19
identifications on the remaining twenty-some latent prints
lifted from the crime scene. Sweedo also said that it was
abnormal that the officers did not investigate the source of the
bloody shoeprints.
Browning’s attorneys then called Pike, Browning’s trial
counsel. Pike told the court that Marsha Gaylord would have
testified to two crucial pieces of evidence that never came out
at trial: (1) Gaylord and Browning had been in the Elsens’
store prior to November 8, 1985, which could have explained
the presence of Browning’s fingerprints in the store; and
(2) the Wolfes had a friend that was of Cuban descent. Pike
could not call Gaylord as a witness, however, because she
“disappeared” after the initial trial continuance. Pike asserted
that he tried to locate Gaylord by using Martin Schopp, his
investigator. Other than Browning himself, Gaylord was the
only person who knew that Browning had been in the Elsens’
store before November 8, 1985.
Pike then described his investigation of Browning’s case.
He explained that although he visited the Elsens’ store after
it was cleaned and reopened to the public, he never went
when it was a crime scene. Pike explained that, to avoid
becoming a witness himself, he had Schopp conduct all
witness interviews. Pike did not have Schopp interview the
Wolfes before trial, despite Pike’s knowing that the Wolfes
were “long time informants.” Pike suggested that any inquiry
into whether the Wolfes were receiving a benefit for their
testimonies would have been futile because, in 1986, plea
bargaining was “informal,” and “basically, there were a lot of
things that were done just with passive agreement.” At some
point prior to trial, Pike was told that the Wolfes had falsely
accused a man named Jerold Morell of assaulting Vanessa
20 BROWNING V. BAKER
with a knife, but Pike could not recall making any attempt to
locate Morell.
Pike did not retain a fingerprint expert because, as a
former prosecutor, he “knew” all of the state’s forensics
witnesses and relied on informal conversations with them.
Pike said that he could trust the state’s main fingerprints
expert to be “straight” with him.
Pike did not conduct any investigation into the source of
the bloody shoeprints, and never authorized any interviews to
determine when the responding officers observed the
shoeprints. He explained that if he investigated the
shoeprints’ source and determined that they belonged to one
of the paramedics, he would not be able to argue that the
shoeprints exculpated Browning as the murderer. Pike
characterized his overall trial strategy as “overcasting a
shadow of doubt, as opposed to proving” Browning’s
innocence.
Before trial, Pike was told that a man named Thomas
Stamps had information suggesting that Randy Wolfe and
another man, Mike Hines, were attempting to sell some of the
jewelry stolen from the Elsens’ store. Pike could not recall
why he did not have Schopp interview Stamps. Pike also
could not recall why he did not instruct Schopp to interview
Martha Haygard (the Wolfes’ landlady), who had seen the
Wolfes with a Cuban individual. Nor could Pike recall why
he had not followed up on Coe’s initial statement to the
police that the man whom she saw running by her office was
white, not black.
Investigator Martin Schopp also testified at the state
habeas hearing. Schopp performed “substantially all the
BROWNING V. BAKER 21
investigative work” for Browning’s defense. Schopp,
however, did not have autonomy—Pike directed all of his
inquiries. While the court appointed Schopp soon after
Browning’s arrest, Schopp was not contacted to perform any
work until five months later, when Browning himself reached
out. Schopp testified that such a significant delay was
unusual and likely allowed evidence to get cold. Pike did not
give Schopp a discovery file until August 1986—ten months
after Browning’s arrest—and the file included only police
reports and a voluntary statement by Randy Wolfe. Pike gave
Schopp no other information to create a foundation for his
investigation. Schopp performed a total of 12 hours of
investigative services for Pike—a number Schopp thought
was low under the circumstances. Pike limited Schopp’s
investigation by denying Schopp’s requests for additional
investigation funds. Schopp and Pike spoke no more than
five times, and each time only briefly.
Shopp explained that after preparing a preliminary
report—which included a statement from Haygard that she
saw the Wolfes wearing “big gold wedding bands” after the
robbery—he felt that there were various other leads to follow.
He requested that Pike permit him to interview the Wolfes
and Thomas Stamps. He also wanted to interview Jerold
Morell, who had told Pike that the Wolfes falsely accused
him of sexually assaulting Vanessa with a knife. (A jury
acquitted Morrell of those accusations.) Pike denied each of
these investigation requests. Pike also never asked Schopp to
interview any police officers or detectives. In Schopp’s
opinion, the investigation into Browning’s case was never
“completed.”
Browning’s state habeas counsel also called prosecutor
Daniel Seaton. Seaton testified that after Browning was
22 BROWNING V. BAKER
convicted of the robbery-murder, Seaton gave Randy Wolfe
two concrete benefits. First, he helped Randy get a
drywalling job. Second, and more importantly, before Randy
was sentenced on his conviction for attempted possession of
stolen property, Seaton spoke to the sentencing judge on
Randy’s behalf. At Randy’s sentencing hearing, the judge
explained that Seaton had told him that Randy was “a witness
in a recent trial,” and in light of Randy’s being “somewhat
helpful” to the prosecution on “several occasions,” Seaton felt
Randy “deserve[d] something positive for doing that.” The
judge later noted that Seaton told him that Randy “more than
fulfilled his obligation” in Browning’s trial “and as a matter
of fact put himself in some jeopardy and deserves something
for it.” In light of Seaton’s statements to the sentencing
judge, the prosecution in Randy’s case withdrew its
recommendation of five years imprisonment. The judge
imposed only probation.
At the state habeas hearing, Seaton testified that he never
promised Randy any benefits in exchange for his testimony
against Browning, and decided to speak to Randy’s
sentencing judge only after Browning was convicted. Seaton
admitted, however, that he had engaged in off-the-record plea
bargaining in the past in at least one other case. Seaton also
admitted that after he learned that the Wolfes kept some of
the Elsens’ stolen jewelry, Seaton did not impound the
jewelry or instruct anyone else to do so. Nor did the state
prosecute the Wolfes with any crime relating to the jewelry
they kept.
Browning’s state habeas counsel also called Officer
Branon. Branon testified that he and another officer were the
first to arrive at the crime scene—before paramedics or other
officers entered the Elsens’ store. Upon arrival, Branon
BROWNING V. BAKER 23
immediately noticed bloody shoeprints on the floor. Branon
encountered Hugo Elsen lying in the corner of the store.
Hugo was scared, but lucid. In Branon’s original report, he
wrote that the assailant had a Jheri Curl-type hairstyle. As
noted above, Branon never explained at Browning’s trial who
gave him that description, and the speaker was not revealed.
During the state habeas hearing, however, Branon explained
that it was victim Hugo Elsen himself who had given the
description. Branon also testified that Hugo did not use the
term “Jheri Curl” when describing the assailant; rather, Hugo
described the assailant’s hair as shoulder length, loosely
curled, and wet. It was Branon—who is black—who first
used the term Jheri Curl to describe the assailant’s hair.
When shown pictures and a video of Browning from the night
of November 8, 1985, Branon stated that Browning’s hair
was a “four inch Afro with braids on top of it,” and could not
be described as a Jheri Curl or shoulder length, loosely
curled, and wet. The revealed testimony about the victim’s
description of the murderer’s hair raised a critical
identification issue.
Finally, Browning himself testified at his state habeas
hearing. He told the court that on November 8, 1985, around
4:00 p.m., he was walking down the street when he saw
Randy Wolfe driving a yellow Datsun. Browning asked
Wolfe for a ride downtown, and as he approached, a Cuban
man—whom Browning knew as Randy’s friend—pushed
Browning out of the way and entered the car. The Cuban
man was wearing both the Hollywood hat and tan jacket
found in the Wolfes’ apartment when Browning was arrested.
Randy told Browning to meet him back at the Wolfes’ motel
room, and then drove off.
24 BROWNING V. BAKER
C
The state district court denied Browning’s habeas petition
on December 7, 2001, and filed its findings of fact and
conclusions of law on October 24, 2002. Browning appealed
to the Supreme Court of Nevada, which on June 10, 2004
affirmed the denial of Browning’s challenge to his
convictions, but reversed the district court’s denial of
Browning’s challenge to his sentence. Browning v. State,
91 P.3d 39 (Nev. 2004). On remand, a jury again sentenced
Browning to death. Browning appealed to the Supreme Court
of Nevada, which affirmed. Browning v. State, 188 P.3d 60(Nev. 2008). The United States Supreme Court denied a
subsequent petition for a writ of certiorari. Browning v.
Nevada, 556 U.S. 1134 (2009).
While he was being resentenced, Browning filed a
petition for a writ of habeas corpus in the United States
District Court for the District of Nevada. On November 28,
2011, Browning filed his Fifth Amended Petition, the
operative version before our court now. After Browning
abandoned several unexhausted claims, the district court
denied Browning’s petition in full on August 1, 2014. The
district court granted Certificates of Appealability (“COA”)
on the following issues: (1) whether the prosecution’s failure
to produce evidence relating to the bloody shoeprints
constituted a violation of Browning’s rights as described in
Brady v. Maryland, 373 U.S. 83 (1963), and/or Napue v.
Illinois, 360 U.S. 264 (1959); (2) whether evidence
impeaching Randy Wolfe’s credibility was withheld in
violation of Browning’s rights under Brady; and (3) whether
Pike was ineffective in light of his failure to investigate the
source of the bloody shoeprints, Hugo Elsen’s description of
BROWNING V. BAKER 25
the assailant, and the credibility of Browning’s accusers.
Browning timely appealed.3
II
We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a), and “review de novo the district court’s dismissal of
a habeas petition.” Runningeagle v. Ryan, 825 F.3d 970, 978
(9th Cir. 2016). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), if a state court adjudicates a
petitioner’s federal law claim on the merits, a federal court
may grant habeas relief only if the state court’s adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).4
3
Browning has moved for expansion of the COA to include three
additional issues. For the reasons set forth below, see Section IV.A, infra,
we GRANT Browning’s motion in part and expand the COA to include
the issue of whether Browning’s trial counsel was ineffective because of
his overall failure to investigate Browning’s case. Browning also seeks
to expand the COA to include: (1) whether the trial court improperly
instructed the jury on the element of deliberation, and (2) whether the
prosecutor’s statements during closing argument violated Browning’s
rights under the Due Process Clause. Because Browning has not “made
a substantial showing of the denial of a constitutional right” for either
issue, we DENY the motion in part as to those claims. 28 U.S.C.
§ 2253(c)(2).
4
As the dissent notes, this deferential AEDPA standard is
occasionally described as allowing habeas relief only when the state
court’s conclusions are so unreasonable that there is no “possibility of fair-
minded disagreement.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). The
existence of cases post-dating AEDPA where the Supreme Court has
granted habeas relief over dissent, however, suggest that this language is
not to be construed as requiring unanimity, or as suggesting that jurists
26 BROWNING V. BAKER
“[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Williams v.
Taylor, 529 U.S. 362, 410 (2000). “A state court’s decision
can involve an unreasonable application of Federal law if it
either [(1)] correctly identifies the governing rule but then
applies it to a new set of facts in a way that is objectively
unreasonable, or [(2)] extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable.” Hernandez v. Small, 282 F.3d
1132, 1142 (9th Cir. 2002) (internal quotation marks
omitted).
Browning asks that we review some of his claims de novo
rather than with deference to the Supreme Court of Nevada.
He contends that the Supreme Court of Nevada’s rulings were
not on the merits, and that its reasoning was based on
standards contrary to federal law. See 28 U.S.C. § 2254(d).
Because we hold that Browning is entitled to relief based on
an unreasonable application of United States Supreme Court
precedent, we need not, and do not, address whether the
Supreme Court of Nevada’s decisions were on the merits or
contrary to federal law.
III
Under Brady, prosecutors are responsible for disclosing
“evidence that is both favorable to the accused and material
who disagree with a grant of habeas relief are not fair-minded. See, e.g.,
Panetti v. Quarterman, 551 U.S. 930 (2007) (a 5–4 decision holding that
the state court unreasonably applied Ford v Wainright, 477 U.S. 399(1986)) and Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (a 5–4
decision holding that the state court unreasonably applied clearly
established Supreme Court precedents requiring a sentencing jury in a
capital case to be able to consider all mitigating evidence).
BROWNING V. BAKER 27
either to guilt or to punishment.” United States v. Bagley,
473 U.S. 667, 674 (1985) (internal quotation marks omitted).
The failure to turn over such evidence violates due process.
Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (per curiam).
The prosecutor’s duty to disclose material evidence favorable
to the defense “is applicable even though there has been no
request by the accused, and . . . encompasses impeachment
evidence as well as exculpatory evidence.” Strickler v.
Greene, 527 U.S. 263, 280 (1999) (citation omitted).
Under Napue, convictions obtained through the use of
false testimony also violate due process. 360 U.S. at 269. A
violation occurs whether the prosecutor solicits false
statements or merely allows false testimony to go
uncorrected. Id. The constitutional prohibition applies even
when the testimony is relevant only to a witness’s credibility,
id., and where the testimony misrepresents the truth, see
Miller v. Pate, 386 U.S. 1, 6 (1967) (prosecutor “deliberately
misrepresented the truth” by presenting testimony that shorts
with large reddish-brown stains tested positive for blood,
while leaving out that the stains were made by paint).
For claims under Brady, the prosecutor’s personal
knowledge does not define the limits of constitutional
liability. Brady imposes a duty on prosecutors to learn of
material exculpatory and impeachment evidence in the
possession of state agents, such as police officers. See
Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006)
(“Brady suppression occurs when the government fails to turn
over even evidence that is ‘known only to police investigators
and not to the prosecutor.’” (quoting Kyles v. Whitley,
514 U.S. 419, 438 (1995))).
28 BROWNING V. BAKER
In the Ninth Circuit, the same is true for claims under
Napue. First, in Giglio v. United States, the Supreme Court
held that it would impute to an entire prosecution office one
prosecutor’s knowledge that a government witness’s
testimony was false, even though the prosecutor with
knowledge of the false testimony was not the trial attorney on
the case. 405 U.S. 150, 154 (1972). Then, in Jackson v.
Brown, we applied the same principle to police officers with
knowledge that trial testimony offered by the government was
false, holding that “Napue and Giglio make perfectly clear
that the constitutional prohibition on the ‘knowing’ use of
perjured testimony applies when any of the State’s
representatives would know the testimony was false.”
513 F.3d 1057, 1075 (9th Cir. 2008).
However, the dispositive question on the Napue claim
here is what “clearly established Federal law, as determined
by the Supreme Court of the United States,” says on the issue.
See 28 U.S.C. § 2254(d)(1). We recently answered that
question. Despite our holding in Jackson, we held in Reis-
Campos v. Biter that “it is not clearly established that a police
officer’s knowledge of false testimony may be attributed to
the prosecution under Napue.” 832 F.3d 968, 977 (9th Cir.
2016).
As the habeas petition in Jackson was filed before
AEDPA’s effective date, Jackson did not directly address
whether there was clearly established Supreme Court
precedent as required by 28 U.S.C. § 2254(d)(1). As such,
Reis-Campos—a case decided under the AEDPA standard—is
controlling on that question. See 832 F.3d at 973.
The district court granted a COA as to whether the
prosecution violated (1) Brady or Napue with respect to
BROWNING V. BAKER 29
Officer Branon’s undisclosed observation of the bloody
shoeprints, and (2) Brady with respect to evidence of an
undisclosed benefit for Randy Wolfe’s testimony. We
expand the COA to include a third claim: whether the
prosecutor violated Brady by not disclosing the actual
description that Hugo Elsen gave to Officer Branon of the
assailant’s hair.5 We first address whether each piece of
evidence was exculpatory, triggering a potential duty to
disclose under Brady, and for the shoeprint evidence, whether
it involved the prosecution’s knowing presentation of
misleading testimony in violation of Napue. We then turn to
materiality.
A
The bloody shoeprints. At trial, Browning argued that the
bloody shoeprints—which did not match the shoes Browning
was wearing when he was arrested—demonstrated that
5
We expand the COA to cover this claim because we conclude that
reasonable jurists could disagree with the district court’s ruling that not
disclosing Hugo’s precise description of the hair did not violate Brady.
See Buck v. Davis, 137 S. Ct. 759, 773 (2017). As we explain in this
opinion, the prosecution’s failure to disclose that evidence was in violation
of Brady.
The state argues that we lack jurisdiction to expand the COA in this
manner because Browning did not explicitly include the hair description
issue in the section of his brief labeled “uncertified issues.” We disagree.
When the content of a brief covers an uncertified issue, “we may treat it
as a request to expand the scope of the certificate of appealability.”
Robertson v. Pichon, 849 F.3d 1173, 1187 (9th Cir. 2017) (quoting
Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008)). Though
Browning did not style his hair-description arguments as a request to
expand the COA, he nonetheless thoroughly discussed the issue. We
construe that discussion as a request to further expand the COA.
30 BROWNING V. BAKER
someone else committed the murder. The prosecution
responded with Officer Horn’s testimony that responding
paramedics and off-duty detectives often wear tennis shoes at
crime scenes, misleadingly suggesting that the shoeprints
came from them. But during the state habeas hearing, Branon
testified that he and Officer Robertson were the first
responders at the store, before the paramedics or other
officers, and that the shoeprints were there when he arrived.
Branon’s observation of the shoeprints was directly contrary
to Horn’s suggestion that paramedics or other officers left the
prints. Had Branon’s observation been disclosed, Browning
could have used that evidence to bolster his contention that
the shoeprints were left by the real killer. This makes
Branon’s observation exculpatory under Brady. See Kyles,
514 U.S. at 441 (undisclosed witness observation did not
match defendant, and so was exculpatory). And, under
Brady, Branon’s knowledge of the shoeprints is imputed to
the government as a whole. See Youngblood, 547 U.S. at869–70.
Browning contends that the prosecution’s handling of the
shoeprint evidence similarly implicates Napue. He asserts
that Branon’s observation, which was written in Branon’s
original report, made Horn’s testimony that paramedics or
off-duty detectives often wear tennis shoes misleading,
because it suggested a source of the shoeprints that could not
have been true. See Miller, 386 U.S. at 6–7. But there is no
evidence suggesting that the prosecution knew that Horn
misrepresented the truth. And, as we held in Reis-Campos, it
is not clearly established under Supreme Court precedent (and
was not clearly established under Supreme Court precedent
on June 10, 2004, the date of the Supreme Court of Nevada’s
decision rejecting Browning’s Napue claim) that the
prosecution had a duty to learn from Branon about his
BROWNING V. BAKER 31
observation. See 832 F.3d at 977. Browning contends that
the evidence suggests Horn knew that his testimony was
misleading. But this theory runs into the same obstacle: it is
not, and was not on June 10, 2004, clearly established that
Horn’s knowledge would be imputed to the prosecution. The
record before the Supreme Court of Nevada does not suggest
that the prosecution knew that Horn’s testimony was false or
misleading. As a result, Browning has not shown that the
Supreme Court of Nevada unreasonably applied clearly
established Supreme Court precedent in denying his Napue
claim.
Benefit for Randy Wolfe’s Testimony. When Pike learned
that Randy had been allowed to plead guilty in an unrelated
case to a lesser charge of attempted possession of stolen
property, Pike moved for a continuance in Browning’s case
to investigate whether Randy and Seaton had made a deal.
Seaton responded in court: “I can tell the court categorically
. . . there has never been any plea bargaining with Randy
Wolfe regarding this case.” At Browning’s trial, Randy
similarly testified that he had not been promised anything for
his testimony, including any promise of a more lenient
sentence on his recent conviction. But after Browning’s trial,
Seaton spoke with Randy’s sentencing judge on Randy’s
behalf. This led Randy’s prosecutor to withdraw his
recommendation of five years, and the judge to sentence
Randy to only probation. The Supreme Court of Nevada held
that this constituted withholding of impeachment evidence
favorable to Browning at his trial,6 Browning, 91 P.3d at54–55, and the state does not dispute that conclusion.
6
The Supreme Court of Nevada held that while impeachment
evidence was withheld, that information was not material. Browning,
91 P.3d at 55.
32 BROWNING V. BAKER
While the Supreme Court of Nevada explicitly concluded
that Seaton improperly withheld evidence in this context, it
never specified precisely what evidence the prosecution
should have disclosed. It stated:
[T]he prosecutor withheld information
regarding benefits given to an important
witness for the State, Randy Wolfe. . . . [A]t
th[e] time [of trial], Wolfe was the defendant
in a separate criminal prosecution, and the
prosecutor admitted at the post-conviction
evidentiary hearing that after Browning’s trial
he told the district judge assigned to Wolfe’s
case that Wolfe had helped in prosecuting
Browning . . . . Though the prosecutor
maintained that he acted unilaterally and
never made any deal with Wolfe, this
information still should have been disclosed
to the defense. Under Brady, even if the State
and a witness have not made an explicit
agreement, the State is required to disclose to
the defense any evidence implying an
agreement or an understanding.
Id. (citing Jimenez v. State, 918 P.2d 687, 694–95 (Nev.
1996)). The only way this information could be “evidence
implying an agreement or an understanding” would be if
Randy knew that Seaton was contemplating speaking to
Randy’s sentencing judge. If Randy did not know, then
Seaton’s intentions would have had no impact on Randy’s
motivations to tell the truth, or not, at trial. We therefore read
the Supreme Court of Nevada’s decision as concluding that
Randy knew that Seaton might help reduce his sentence if he
BROWNING V. BAKER 33
testified against Browning.7 It is that piece of
evidence—Randy’s expectation of a potential benefit in
exchange for his testimony—that constituted impeachment
evidence that should have been disclosed to Pike. See, e.g.,
Arizona v. Fulminante, 499 U.S. 279, 300 (1991)
(recognizing that benefits conferred by authorities may
motivate a witness to lie).
Hugo Elsen’s Description of the Killer’s Hair.
Browning’s hairstyle at the time of the robbery was an Afro.
At trial, Officer Branon testified that he received a
description of the suspect at the scene as sporting a “shoulder
length J[h]eri-type curl.” At closing, the prosecution argued
that whoever gave this description to Branon did not know
7
The dissent reasons that this determination by the Supreme Court of
Nevada was “not based on any facts in the record,” and that the Supreme
Court of Nevada therefore “engaged in an unreasonable determination of
the facts” in violation of 28 U.S.C. § 2254(d)(2). But at no point in this
case has the state challenged the Supreme Court of Nevada’s ruling on
that point. We also do not see how it could. The federal habeas statutes
provide a mechanism by which state prisoners can challenge on federal
grounds the authority behind their detention by state officers. They do not
provide a means for federal courts to engage in error correction of state
court rulings that favor defendants. The statutory language makes this
plain: 28 U.S.C. § 2254(d)(2) states that “[a]n application for a writ of
habeas corpus . . . shall not be granted with respect to any claim . . . unless
the adjudication of the claim . . . resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Also, 28 U.S.C. § 2254(e)(1)
states “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” These
statutory principles are limitations on federal courts’ power to grant
habeas relief. We do not understand how the dissent wrings from these
provisions an affirmative power to rule that a state court erred in doing too
little to justify its detention of a petitioner.
34 BROWNING V. BAKER
the difference between a Jheri Curl and an Afro. But during
the state habeas hearing, Branon testified that the description
he was given did not actually include the words “Jheri Curl.”
Rather, Hugo told him that the assailant’s hair was “shoulder
length,” “loosely curled,” and “wet.” Branon, who is African
American, then interpreted those words to mean a Jheri Curl,
and used that term in his original report.
Neither “Jheri Curl” nor “shoulder length,” “loosely
curled,” and “wet” are descriptions of an Afro. But only
“Jheri Curl” is susceptible to the argument that the speaker
could have seen an Afro and used the wrong term because he
was unfamiliar with African American hairstyles. Had the
prosecution disclosed before trial that victim Hugo Elsen’s
description of his assailant’s hair was not a “shoulder length
J[h]eri-type curl,” but “shoulder length,” “loosely curled,”
and “wet,” Browning could have easily refuted the
prosecution’s argument. This makes the exact words Hugo
used to describe his assailant evidence favorable to the
defense under Brady.8
8
The dissent calls this a “novel view” of Brady. According to the
dissent, our analysis “extends the state’s obligations into the murky zone
of interpretations of otherwise neutral facts.” But facts do not exist in a
vacuum. Their exculpatory value invariably depends on the
interpretations offered, and the theories pressed, by the parties. Consider,
for example, one of the pieces of Brady material in Kyles. 514 U.S. 419.
The prosecution in that case did not disclose to the defense a list of the
cars parked in the parking lot where the victim was killed, a list which did
not include the defendant’s car. Id. at 450. The Supreme Court held that
the list was exculpatory in part because the prosecution “argued to the
jury[] that the killer drove to the lot and left his car there.” Id. Had the
prosecution instead argued that the killer walked to the scene of the crime,
the list of cars would have had less exculpatory value to the defense.
Likewise here, the prosecution’s argument that the speaker did not know
the difference between a Jheri Curl and an Afro affected the exculpatory
BROWNING V. BAKER 35
We hold that Officer Branon’s shoeprint observation,
Randy’s understanding that Seaton was considering speaking
with Randy’s sentencing judge in exchange for Randy’s
testimony against Browning, and the precise hair description
Branon received from Hugo Elsen were all favorable to
Browning under Brady. We also hold that Browning’s Napue
claim fails because it was not clearly established at the time
of the Supreme Court of Nevada’s decision that a police
officer’s knowledge of false or misleading testimony would
be imputed to the prosecution.
For the Brady evidence, except for Randy’s expectation
of a benefit for his testimony, the Supreme Court of Nevada
did not explicitly address whether this evidence was favorable
to Browning. But in light of our above analysis, we hold that
had the Supreme Court of Nevada not viewed the evidence as
favorable to the defense, it would have been an unreasonable
application of Supreme Court precedent.
B
We turn now to materiality as an element of the Brady
claims. Under Brady, evidence is material “if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Bagley,
473 U.S. at 682. When there are multiple Brady claims, the
Supreme Court instructs that we consider materiality
“collectively.” Kyles, 514 U.S. at 436. We must imagine that
every piece of suppressed evidence had been disclosed, and
value of Hugo’s precise words. We offer a straightforward application of
clearly established Brady principles, not a “novel interpretation.”
36 BROWNING V. BAKER
then ask whether, assuming those disclosures, there is a
reasonable probability that the jury would have reached a
different result. See, e.g., Turner v. United States, 137 S. Ct.
1885, 1893 (2017); Cone v. Bell, 556 U.S. 449, 473–74
(2009).
Applying this procedure to the facts before us, and
incorporating AEDPA deference, we address the following
question: Imagine that the prosecution had disclosed (1) that
Officer Branon observed that the shoeprints existed before
paramedics or other officers arrived; (2) that Randy expected
a benefit for his testimony; and (3) that Hugo Elsen described
the assailant as having shoulder length, loosely curled, and
wet hair, rather than a Jheri Curl. Was it objectively
unreasonable for the Supreme Court of Nevada to conclude
that there was not a reasonable probability that the jury would
have reached a different result?
We conclude that the answer is yes. Officer Branon’s
undisclosed shoeprint observation disproves the prosecution’s
primary rebuttal against Browning’s strongest piece of
evidence that someone else killed Hugo. The undisclosed
evidence of a benefit for Randy’s testimony adds a powerful
reason to disbelieve him and his wife, the prosecution’s most
critical witnesses. And the undisclosed evidence of Hugo’s
exact dying words defeats the prosecution’s central argument
against its probativeness.
Also, the prosecution’s trial evidence was remarkably
weak. Its case relied on flawed identifications and the
Wolfes’ unreliable testimony. And the physical evidence was
just as consistent with Browning having been framed as with
him being the killer.
BROWNING V. BAKER 37
We conclude that it was an objectively unreasonable
application of Supreme Court precedent to hold that the
Brady materiality standard was not met here. Below, we
discuss materiality in more detail, analyzing the relevant
evidence at trial piece-by-piece, with an aim to showing the
probable ultimate effect on the jury’s decision.
The Bloody Shoeprints. Browning’s trial theory was that
someone else killed Hugo Elsen. The shoeprints leading from
Hugo to the front door lent strong support to this theory. But
Officer Horn’s testimony suggesting that paramedics or other
officers could have left the shoeprints gave the jury a reason
to disregard strong evidence raising questions of reasonable
doubt. Had the prosecution disclosed Branon’s observation
about the shoeprints, the source of several bloody shoeprints
would remain a mystery. This means the jury would have
been left with powerful evidence that Browning was not the
killer.
In its briefing, the state responds that Officer Branon’s
observation was not so helpful for Browning’s defense
because the shoeprints could have been made by Josy Elsen
or Debra Coe. But that is pure speculation. The prosecution
had the opportunity to offer at trial evidence that Josy or Coe
made the shoeprints, but either chose not to do so or did not
have such evidence. We cannot now assume such evidence
exists. See Miller-El v. Cockrell, 537 U.S. 322, 345 (2003)
(“Had there been evidence obtainable to contradict and
disprove the testimony offered by petitioner, it cannot be
assumed that the State would have refrained from introducing
it.” (internal quotation marks omitted)). In any event, as the
district court noted, it is unlikely that either Josy or Coe was
the source of the prints because there is no evidence that
either of them went anywhere near the store’s front door after
38 BROWNING V. BAKER
Hugo was stabbed. There are also photos in the trial record
of the shoeprints next to a ruler. Examining the photos as if
we were the jury viewing them as exhibits at trial, the
shoeprints appear to us larger than those of a typical woman’s
shoe.9
At oral argument, counsel for the state
proffered a different theory. He asserted that there
were in fact two sets of prints: one set around
Hugo Elsen’s body, and another leading from the body
to the front door. See Oral Arg., Browning v. Baker,
No. 15-99002 (Mar. 16, 2017) at 23:00–23:47,
https://www.youtube.com/watch?v=8va4fhOsWZ8. Counsel
argued that the shoeprints Officer Branon referred to in his
testimony were only those immediately surrounding Hugo’s
body, which Josy or Coe may have created while giving aid
to Hugo. Id. at 23:50–24:20. According to his theory, the
other prints—which led from the body to the front
door—were left later by paramedics. Id. at 24:22–24:55. But
the state did not raise this argument in its briefing before this
court (or apparently in any court); it has thus long been
9
In the state habeas proceeding, Browning argued the same point but
with expert testimony. He submitted a report from forensics examiner
Michael Sweedo that stated that the shoeprints were too big to have been
made by the typical woman’s tennis shoe. This evidence was not part of
the original trial record, and we are doubtful that we may consider it in
determining materiality under Brady. Nevertheless, we need not decide
the issue because the Brady violations here were material without
considering post-trial revelations.
BROWNING V. BAKER 39
forfeited. See Harger v. Dep’t of Labor, 569 F.3d 898, 904
n.9 (9th Cir. 2009); Fed. R. App. P. 28(b).10
A final possibility, one the parties do not discuss but that
the jury might have considered, was that Browning made the
shoeprints, but then changed his shoes before being arrested.
But like the theory that Josy or Coe left the prints, there is no
evidence to support this possibility. The prosecution never
found any such shoes in the Wolfes’ or Browning’s
apartments, nor any other shoe that matched the prints.
The bloody shoeprints were strong evidence that
Browning was not the killer. Had the prosecution disclosed
Branon’s observation, that strong evidence would have gone
unrebutted.
Benefit for Randy Wolfe’s Testimony. Randy and Vanessa
Wolfe were the prosecution’s most important witnesses.
They were the original accusers, the source of the alleged
murder knife, and the source of Browning’s alleged
confession. It is fair to say that had the jury not credited the
Wolfes’ testimony, Browning would not have been convicted.
10
Moreover, the record does not support this new theory. Counsel
seemed to derive the theory from the particular words chosen by Officers
Branon and Horn in describing the location of the shoeprints. At the state
habeas hearing, Branon testified that the shoeprints were “near” Hugo,
while Michael Sweedo, reading from Horn’s police report, stated that the
prints led from Hugo’s body to the front door. We are unpersuaded. A
description of shoeprints “near” a body could easily mean shoeprints
leading from that body to another part of the room. The state also presents
no other evidence, such as different tread patterns in the shoeprints, to
support the two-sets theory. And we have already explained why the
evidence does not support Josy or Coe having left any of the shoeprints.
40 BROWNING V. BAKER
The jury had plenty of reasons not to believe the Wolfes.
The Wolfes admitted that they used heroin and cocaine,11 that
Vanessa was a prostitute, and that Randy stole property.
Randy had prior convictions, including a recent conviction
for which he would soon be sentenced. Randy admitted to
keeping some of the stolen jewelry and lying about it at
Browning’s preliminary hearing. Vanessa testified that she
used to “bilk people out of their money.”
Given this mountain of evidence providing potential
reasons to doubt the Wolfes’ credibility, getting just one juror
to change his or her mind about the truth of the Wolfes’
testimony likely would not have required much. See Agurs,
427 U.S. at 113 (“[I]f the verdict is already of questionable
validity, additional evidence of relatively minor importance
might be sufficient to create a reasonable doubt.”).
Evidence suggesting that Randy was expecting leniency
in his sentencing in exchange for his testimony against
Browning could have accomplished this task. And, it could
have done so without being merely cumulative of the
impeachment evidence already in the record. Evidence that
Randy was expecting a benefit for his testimony would have
revealed that the Wolfes had a “direct, personal stake in
[Browning]’s conviction.” Id. at 683. The other
impeachment evidence concerning the Wolfes’ criminal
activity and penchant for lying suggested to the jury that the
Wolfes were untrustworthy. But evidence suggesting that
Randy had a personal stake in Browning’s conviction would
11
The Wolfes’ use of drugs is relevant to their credibility because it
indicates that in the past they engaged in illegal activity. However, that
the Wolfes were physically addicted to drugs is not here relevant to their
credibility. See United States v. Kizer, 569 F.2d 504, 506 (9th Cir. 1978).
BROWNING V. BAKER 41
have shown the jury why the Wolfes would lie in this
particular case. See Maxwell v. Roe, 628 F.3d 486, 510 (9th
Cir. 2010) (“The undisclosed benefits that the informant
received added significantly to the benefits that were
disclosed and certainly would have cast a shadow on the
informant’s credibility. Thus, their suppression was
material.” (internal quotation marks and alterations omitted)).
Such evidence would have been uniquely impeaching, and if
disclosed, may have broken the camel’s back and persuaded
the jury to disbelieve the Wolfes. Without the Wolfes, the
prosecution had no case.12
Hugo Elsen’s Description of the Assailant’s Hair. Had
the prosecution disclosed the precise words Hugo used to
describe his assailant’s hair, the prosecution’s argument that
the source of the description must not have known the
difference between a Jheri Curl and an Afro would have
failed, leaving the jury with no reason to disregard Hugo’s
description. Hugo’s precise description—wet, shoulder
length, and loosely curled—significantly undermines the case
against Browning. The description was markedly different
from Browning’s hair on the day of the murder—an
Afro—and, according to Branon, Hugo was lucid when he
gave it. Moreover, it was unlikely that Hugo was mistaken
about his description in light of Branon’s “meticulous”
12
The dissent contends that, when engaging in this analysis, “our role
is not to reweigh the evidence and make fresh credibility determinations.”
We disagree that this argument is controlling. To determine whether the
jury would have been swayed by additional evidence, we must put
ourselves in the shoes of the jurors and ask whether the same result would
be reached if presented with this new, hypothetical trial record. There is
no way to do that without making fresh credibility determinations,
particularly when the new evidence is impeachment evidence, and is
therefore relevant only because of its tendency to affect credibility.
42 BROWNING V. BAKER
questioning. Hugo also had the closest and most accurate
view of the assailant’s hair, while, as discussed below, every
other eyewitness identification was seriously flawed. Hugo’s
vivid description of a hairstyle so different from Browning’s
presented substantial reason to doubt that Browning was the
one who stabbed Hugo. If the jury no longer had reason to
reject that description, and the jury knew that the description
came from the victim, it would have raised grave doubt about
the prosecution’s theory of the case.
Identifications. The identifications presented at trial were
significantly flawed. Two of the three original positive
identifications were equivocal at best, and the officers’
presentation procedures were textbook examples of
suggestive techniques. See United States v. Wade, 388 U.S.
218, 228 (1967) (“A major factor contributing to the high
incidence of miscarriage of justice from mistaken
identification has been the degree of suggestion inherent in
the manner in which the prosecution presents the suspect to
witnesses for pretrial identification.”).
Josy Elsen saw only the side of the assailant’s head after
waking from a nap. She told officers it was unlikely that she
would be able to identify the assailant because she saw him
only for a moment, and never saw his face. During the photo
lineup, Josy pointed to three photos of men that were not
Browning, saying only that their hair resembled the
assailant’s. While Josy identified Browning at trial, it was
only after seeing Browning at more than a dozen preliminary
BROWNING V. BAKER 43
hearings, and at each he was presented as the accused. Josy’s
identification deserves, at most, minimal weight.13
Coe’s identification was not much better. An officer
presented Coe with Browning—who was shirtless and
handcuffed—and said, “We think we have a suspect. Is this
him?” At this point, Browning’s appearance, the officer’s
question, and the form of the showup rendered the procedures
highly suggestive and any resulting identification of little
evidentiary value. See Stovall v. Denno, 388 U.S. 293, 302
(1967) (“The practice of showing suspects singly to persons
for the purpose of identification, and not as part of a lineup,
has been widely condemned.”), abrogated on other grounds
by Griffith v. Kentucky, 479 U.S. 314 (1987). Coe then said
that she only “thought” Browning was whom she had seen
running by her office. This was despite initially telling police
that the man she saw was white and did not look as if he came
from the Elsens’ store. Coe also told police that “when [she]
see[s] a black person, [] they all look the same,” giving less
reason for confidence in her already uncertain identification.
Coe said at trial that after having had “time to think about it,”
she was sure that it was Browning that she saw. But her in-
court identification says far less than her equivocal
contemporaneous one. Cf. Gilbert v. California, 388 U.S.
13Browning argues that Josy never positively identified Browning at
trial, and that the state conceded as much during state habeas proceeding.
However, Browning has not provided the Court with any documentation
regarding the state’s supposed concession. The prosecution did
significantly overstate Josy’s identification, saying that she pointed at
Browning and said, “That’s the man who was kneeling over my husband,”
when in fact Josy had merely said that Browning was in the courtroom.
The identification was not, as Prosecutor Seaton maintained, “as good as
you can ask for.” Nevertheless, we agree with the trial court that Josy
identified Browning at trial.
44 BROWNING V. BAKER
263, 272 (1967) (tying admissibility of in-court identification
in part to the constitutionality of a pretrial identification).
Woods gave a positive identification of Browning at the
scene. But police used the same suggestive procedure they
did with Coe. They told Woods that they had a suspect and
then presented Browning wearing only pants, and not as part
of a multi-person lineup. Again, these procedures cast doubt
on the answer they produced.14
Not counting the far-after-the-fact and suggestive in-court
identifications, the only unequivocal identification of
Browning at the time of the crime was Woods’s, in response
to a suggestive, one-person showup. But even crediting
Woods’s identification, it tells us almost nothing about who
killed Hugo Elsen. Woods stated that he saw Browning
jogging towards him (and away from the Elsens’ store),
getting within touching distance. Browning was not carrying
anything and had no blood on him. We do not understand
how Woods’s identification and description of Browning—no
blood on him and nothing in his hands—would support an
inference that Browning had just brutally stabbed a man to
death and stolen 70 pieces of jewelry. The only thing that
Woods’s identification, if credited, proves is that Browning
14
Hoffman was subject to the same suggestive procedure as well, but
curiously, no party at trial squarely asked him whether Browning was the
same man he had seen earlier walking towards the Elsens’ store.
Nevertheless, Hoffman’s trial testimony hints at what his answer would
have been. He testified that the man he saw was wearing a hat, and that
Browning did not appear as though he had recently been wearing a hat.
Hoffman also told police that the man he saw was “Cuban,” supporting
Browning’s defense theory that the Wolfes and their Cuban friend framed
him for the murder.
BROWNING V. BAKER 45
was a few blocks from his residence around 4:30 p.m. on
November 8, 1985.
The Jewelry. When police arrested Browning in the
Wolfes’ apartment, they found many pieces of the stolen
jewelry in the same room as Browning. However, the rest of
the jewelry was turned over later by the Wolfes (except for
the items Randy kept for himself). There was no evidence at
trial that Browning’s fingerprints were on any of the stolen
jewelry. The jewelry evidence is just as consistent with the
Wolfes framing Browning for the murder as it is with
Browning being guilty.
Browning’s Appearance When Arrested. The Elsens,
Coe, Hoffman, and Woods gave somewhat similar
descriptions of the clothes on the man they saw. Josy and
Hugo Elsen both described a man wearing a blue cap. Coe
described a blue cap, Levi’s, and a dark blue jacket. Woods
described dark pants, a light-colored shirt, and a “darker
color” hat—a “beret sort of thing.” Hoffman described
Levi’s, a shirt that he vaguely recalled as plaid, and a blue
baseball cap. When police arrested Browning, he was not
wearing any jacket, any shirt, or any hat. The shoes
Browning was wearing did not match the bloody shoeprints
at the crime scene, and there was no evidence that Browning
had any blood on him. Police recovered a blue hat in the
dumpster outside the Normandy Motel, but again, this
discovery was just as consistent with the Wolfes being
responsible for the murder as Browning.
Fingerprints. Officer Horn lifted “twenty some odd”
fingerprints from the scene, two of which matched
Browning’s prints. One of Browning’s prints was from the
top glass of one of the disturbed counters, and the other was
46 BROWNING V. BAKER
from a fragment of the counter’s broken sliding-glass door.
However, the store was only two blocks from Browning’s
residence, and there was no evidence as to how long the
prints had been present. See Mikes v. Borg, 947 F.2d 353,
361 (9th Cir. 1991) (“[I]n a case resting upon the premise that
the defendant impressed his fingerprints on an object at the
time of the commission of the crime and supported solely by
evidence that the defendant’s fingerprints were found on that
object, the record must contain sufficient evidence . . . that
the defendant touched the object during the commission of the
crime.”). Browning could have visited the store at some
earlier point. Or he could have been involved in the robbery,
while someone else—say Randy Wolfe or the Wolfes’ Cuban
friend—committed the murder. Cf. Wearry, 136 S. Ct. at
1006 (“[T]he evidence the dissent cites suggests, at most, that
someone in Wearry’s group of friends may have committed
the crime, and that Wearry may have been involved in events
related to the murder after it occurred.”).
Steven Scarborough, who examined the fingerprints, also
testified that he compared the approximately twenty
fingerprints lifted from the scene against only Browning’s
and Hugo Elsen’s. This left no evidence about whether any
of the prints matched Randy or Vanessa Wolfe, or any other
possible suspect. Moreover, the prosecution did not present
any evidence that the fingerprints were bloody or that blood
was on the glass. Had Browning stabbed Hugo and then
broken the case and stolen the jewelry as the prosecution
suggested, the fingerprints likely would have had blood on
them.
The fingerprint evidence is probably the strongest
evidence against Browning. But it is by no means decisive,
and we conclude that it is not enough to avoid the otherwise
BROWNING V. BAKER 47
substantial reasonable doubt created by the shoeprint
evidence, the evidence that Randy expected a benefit for his
testimony, and Hugo’s description of the assailant’s hair.15
Blood-Spotted Jacket. Vanessa Wolfe identified a tan
windbreaker found in her apartment as belonging to
Browning. Criminalist Minoru Aoki testified that blood
found on the jacket was type B, the same blood type as Hugo
Elsen’s. The prosecution argued at trial that the jacket proved
that Browning was the killer. But Aoki’s testimony only
showed that the blood on the jacket was the same type as
Hugo Elsen’s (out of four types), not that there was a DNA
match.16 The jacket did not match any of the descriptions
given by the identification witnesses, who all said the jacket
they saw was blue. And even if the killer had worn the
jacket, there was no reason to believe that Browning was
wearing the jacket on November 8, 1985. The jacket was
found in the Wolfes’ apartment, tying it just as easily to
Randy or his Cuban friend as to Browning. The jacket was a
zero-sum for the prosecution’s case.
15
In the state habeas proceeding, Browning presented expert
testimony that it was possible that the print on top of the glass case could
have come from someone leaning over the case, and that the print found
on the shard of glass on the floor behind the counter could be consistent
with someone pushing the glass door open. Defense counsel Pike also
testified at the habeas hearing that he had planned to call Browning’s
girlfriend, Marsha Gaylord, to testify that she had been in the jewelry store
with Browning prior to the day of the crime, but that Pike was unable to
do so because Gaylord had disappeared. As already discussed, we grant
relief without deciding whether such post-trial evidence bears on
materiality under Brady.
16
In the state habeas proceeding, the parties stipulated that post-trial
DNA testing revealed that the blood on the jacket conclusively did not
belong to Hugo Elsen. Again, we do not rely on this post-trial evidence.
48 BROWNING V. BAKER
The Knife. Vanessa Wolfe testified that she saw Browning
shaking water off of a knife in her apartment, and that he
asked her to help get rid of it. But there was no blood or
fingerprints found on the knife, and apart from Vanessa’s
testimony, no other evidence tying the knife to the murder.
Dr. Giles Green testified that Hugo’s wounds could have been
made by the knife, but nothing made him think that that
particular knife was the murder weapon.17 Even if there had
been some physical evidence connecting the knife to the
murder, there was still no such evidence that Browning had
even touched it. Indeed, the knife, like the tan jacket, is just
as consistent with the Wolfes or a friend of theirs committing
the murder as with Browning being the killer. Outside of
Vanessa’s testimony, the knife adds nothing to the
prosecution’s case.
In sum, the jewelry, the knife, and the tan jacket all failed
to tie Browning to the murder. The identifications were
flawed and mostly equivocal. There were endless reasons to
distrust the Wolfes. When arrested, Browning was not
wearing any clothing described by the eyewitnesses, and
there was no evidence that Browning had any blood on him.
All the prosecution had left was the fingerprints. But even
with those, there was no evidence about how long the prints
had been present, and no evidence that the other prints from
the scene did not match either of the Wolfes or their Cuban
friend. The upshot is that the prosecution presented a
fundamentally weak case. Add Officer Branon’s observation
of the shoeprints, thus leaving unanswered significant
17
In the state habeas proceeding, Browning introduced a forensics
report indicating that Hugo Elsen’s wounds “do not coherently coincide”
with the knife found in the Wolfe’s apartment. We do not rely on this
evidence.
BROWNING V. BAKER 49
evidence that someone besides Browning, Josy, Coe, a
paramedic, or a police officer was in the store with Hugo
while he was bleeding; add evidence that the prosecution was
planning to help its best witness in an unrelated sentencing,
suggesting a motive for the witness and his wife to lie at trial;
add an unrebutted closeup description from the victim that
did not match the defendant; and that fundamentally weak
case collapses under the weight of its reasonable doubt.
“Even if the jury—armed with all of this new
evidence—could have voted to convict [Browning], we have
no confidence that it would have done so.” Wearry, 136 S.
Ct. at 1007 (internal quotation marks omitted). And yet
Browning sits on death row. We conclude that there is a
reasonable probability that had the concealed evidence not
been withheld, the jury would have reached a different result.
We also hold that this result is the only objectively
reasonable conclusion. Whatever confidence the Supreme
Court of Nevada found in Browning’s verdict, it was not a
confidence that was objectively reasonable. The strength of
the undisclosed evidence is too great, and the remainder of
the trial record too weak. “‘[F]airness’ cannot be stretched to
the point of calling this a fair trial.” Kyles, 514 U.S. at 454.
The district court should have granted habeas relief on
Browning’s Brady claims.
IV
Browning also asserts that he was denied his right to
effective assistance of trial counsel. To show a violation of
that right, Browning must demonstrate that (1) Pike’s
performance was deficient, and (2) that deficiency prejudiced
Browning. Strickland v. Washington, 466 U.S. 668, 687
(1984). Because AEDPA guides our review, we ask whether
50 BROWNING V. BAKER
the Supreme Court of Nevada “applied Strickland to the facts
of [t]his case in an objectively unreasonable manner.” Bell v.
Cone, 535 U.S. 685, 699 (2002). We conclude that it did.
A
We first clarify the scope of Browning’s IAC claim on
appeal. In its order, the district court limited the COA to
particular “claims” that Pike’s failure to investigate particular
avenues of evidence were deficient. The district court
granted COAs on whether Pike’s failure to investigate (1) the
source of the bloody shoeprint, (2) the Wolfes’ credibility as
witnesses, and/or (3) Hugo Elsen’s actual description of the
assailant to Officer Branon each constituted individual
instances of ineffective assistance of counsel. Limiting the
COA in this manner was error.
Browning is entitled to a COA if he “has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (emphasis added). Browning’s
habeas petition asserts that he was denied the constitutional
right of effective trial counsel. This right is a guarantee of
effective counsel in toto—it promises that counsel will
perform reasonably. While an individual claiming IAC “must
identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment,”
Strickland, 466 U.S. at 690, the court considers counsel’s
conduct as a whole to determine whether it was
constitutionally adequate, see, e.g., id; Wong v. Belmontes,
558 U.S. 15, 17 (2009) (“In light of the variety of
circumstances faced by defense counsel and the range of
legitimate decisions regarding how best to represent a
criminal defendant, the performance inquiry necessarily turns
on whether counsel’s assistance was reasonable considering
BROWNING V. BAKER 51
all the circumstances.” (internal quotation marks and
alterations omitted)). The district court distorted this inquiry
by separating Browning’s IAC argument into individual
“claims” of IAC corresponding to particular instances of
Pike’s conduct. This approach was misguided. Rather, the
IAC portion of the COA should have been crafted at a higher
level of generality.
Browning asks us to expand the COA to include whether
he “was denied effective assistance of counsel by his trial
lawyer’s wholesale failure to investigate and prepare for
trial.” Because this articulation more appropriately frames
the constitutional right Browning’s petition contends was
violated, and because—as explained below—he “has made a
substantial showing of the denial” of that right, 28 U.S.C.
§ 2253(c)(2), we GRANT his motion to expand the COA to
include that issue.
B
The first element of an IAC claim requires Browning to
show that his counsel’s performance was “deficient,” or more
precisely, “below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. Browning may not rely on
generalities in making this showing; he must point us to
specific instances of Pike’s conduct that demonstrate
incompetent performance. Id. at 690. Because Browning
asserts that Pike failed to adequately investigate the case,
Browning must show that Pike violated his “duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Id. at 691.
The ABA Standards for Criminal Justice in effect during
Browning’s trial, to which the Supreme Court has “long . . .
referred as guides to determining what is reasonable,”
52 BROWNING V. BAKER
Wiggins v. Smith, 539 U.S. 510, 524 (2003) (internal
quotation marks omitted), help clarify Pike’s investigatory
obligations. They included “the duty . . . to conduct a prompt
investigation of the circumstances of the case . . . includ[ing]
efforts to secure information in the possession of the
prosecution and law enforcement authorities.” ABA
Standards for Criminal Justice, Standard 4-4.1 (2d ed. 1980);
see also Summerlin v. Schriro, 427 F.3d 623, 629–30 (9th Cir.
2005) (en banc) (“The standards in effect at the time of
Summerlin’s trial [which occurred prior to Browning’s]
clearly described the criminal defense lawyer’s duty to
investigate . . .”).
We examine Pike’s performance in a “highly deferential”
manner, “indulg[ing] a strong presumption that [Pike’s]
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Moreover, because
we are operating under AEDPA deference, our review is
“doubly deferential[,] . . . tak[ing] a highly deferential look at
counsel’s performance, through the deferential lens of
§ 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)
(citation and internal quotation marks omitted). Browning
therefore must show more than “a strong case for relief”—he
must demonstrate that “there is no possibility fairminded
jurists could disagree that the state courts decision conflicts
with” Supreme Court precedent. Harrington v. Richter,
562 U.S. 86, 102 (2011). We conclude Browning has made
this showing.
Browning first points us to Pike’s failure to interview
Officer Branon prior to calling Branon to testify at trial. The
Supreme Court of Nevada concluded that this was deficient
performance, Browning, 91 P.3d at 46, and we agree. We
have previously assumed without deciding that “it ordinarily
BROWNING V. BAKER 53
falls below the Strickland level of required competence to put
a witness on the stand without interviewing him.” Jackson v.
Calderon, 211 F.3d 1148, 1160 (9th Cir. 2000). Because the
government does not challenge the Supreme Court of
Nevada’s conclusion on this point, we need not decide
whether failing to interview a witness before calling him to
the stand invariably constitutes objectively unreasonable
representation, and do not disturb the Supreme Court of
Nevada’s conclusion that it did in this case.
Browning also argues that Pike’s failure to investigate the
source of the bloody shoeprints constituted deficient
performance. At the state habeas hearing, Pike explained this
decision by noting that if he attempted to determine the
source of the shoeprints and discovered that the source was
paramedics or responding officers, he would disprove his
own theory that the prints were left by the assailant (who was
someone other than Browning). In other words, Pike
apparently chose not to investigate the source of the
shoeprints because he thought Browning was guilty, and thus
assumed the shoeprints had been left by paramedics and other
responders. The Supreme Court of Nevada held that this was
a reasonable tactic, explaining, “[a]s long as the source of the
prints was unknown, counsel could argue to the jury that the
actual murderer had left them.” Browning, 91 P.3d at 46.
On this issue, the Supreme Court of Nevada unreasonably
applied Strickland’s deficiency standard by blindly accepting
Pike’s strategy. “Counsel cannot justify a failure to
investigate simply by invoking strategy. . . . Under Strickland,
counsel’s investigation must determine strategy, not the other
way around.” Weeden v. Johnson, 854 F.3d 1063, 1070 (9th
Cir. 2017). Pike’s invocation of strategy here is an extreme
instance of strategy determining investigation. If a defense
54 BROWNING V. BAKER
attorney’s “fear of learning the truth” rendered every decision
not to investigate a reasonable tactic, even the most egregious
failures to investigate a client’s case would be protected from
constitutional scrutiny. Even worse, under the Supreme
Court of Nevada’s reasoning, a criminal defendant’s
entitlement to a reasonable investigation would depend on his
attorney’s uninformed, gut-based intuition about his client’s
guilt. In other words, according to the Supreme Court of
Nevada, if your criminal attorney does not believe your story,
your attorney need not investigate your case. The Sixth
Amendment required more in 1986, and still does today.
To be sure, a decision not to investigate particular facts
may be reasonable when the attorney has reason to believe
doing so would reveal inculpatory evidence. In Richter, for
example, the defendant argued that his attorney should have
had a blood expert test a pool of blood from the crime scene
to determine whether it was a mixture of two victims’ blood.
562 U.S. at 108. Such a result would have dramatically
bolstered the defense’s theory. See id. But the test could
have also disproved the defense’s theory by only detecting a
single blood source. See id. The Court explained that the
defendant’s attorney decided not to test the blood because he
“had reason to question the truth of his client’s account” in
light of the client’s prior false statements. Id. Because of the
“serious risk” that the test would expose the defense’s theory
“as an invention,” defense counsel’s decision was reasonable.
Id.Here, the facts are the opposite. Pike had no reason to
disbelieve Browning’s assertions that he had been framed by
the Wolfes. And more importantly, contrary to Pike’s fears,
there was little risk that investigation into the source of the
shoeprints could damage Browning’s defense theory. Had
BROWNING V. BAKER 55
Pike interviewed Branon before calling him to the stand, Pike
could have asked him whether paramedics or police officers
had entered the store before Branon’s arrival. If Branon’s
answer was “no,” this would have bolstered Browning’s
theory. But even if Branon had responded “yes,” Pike could
have decided then to inquire no further, and still would have
inflicted no harm on his theory. Pike thus had no reason to
fear that any inquiry into the source of the shoeprint would
damage his case. While “[a]n attorney need not pursue an
investigation that would be fruitless, much less one that might
be harmful to the defense,” id. at 108, the reverse is also true:
the obligation to investigate, recognized by Strickland, exists
when there is no reason to believe doing so would be fruitless
or harmful.18
Browning also asserts that Pike’s performance was
deficient because Pike never interviewed the Wolfes before
trial. When asked about this at the state habeas hearing, Pike
explained that he had a policy of never personally
interviewing witnesses to prevent becoming a witness
himself. Rather, he had Martin Schopp conduct all
interviews. The Supreme Court of Nevada concluded that
this was a reasonable strategy. Browning, 91 P.3d at 46.
There can be no doubt that Pike’s policy of not personally
interviewing witnesses was reasonable. But that policy in no
way explains why Pike rejected Schopp’s request to interview
18
Browning offers a different but related argument: the Supreme
Court of Nevada’s conclusion that Pike’s performance was deficient due
to his failure to interview Branon at all requires a holding that Pike was
deficient for not asking Branon about the shoeprints. Because there was
a deficiency in not interviewing Branon at all, we need not decide if any
particular questions were needed to be asked.
56 BROWNING V. BAKER
the Wolfes. Merely articulating a reasonable strategy in
response to a deficiency argument does not end the inquiry
when that strategy does not explain the decision itself. See
Wayne R. Lafave, et al., Criminal Procedure § 11.10(c), at
797 (6th ed. 2016) (“Of course, a decision apparently based
on a tactical judgment is not therefore rendered immune from
an incompetency challenge.”). Pike gave no explanation for
why Schopp could not conduct the interview himself. Yet the
Supreme Court of Nevada concluded that Pike’s no-personal-
interviews strategy explained his decision to not subject the
Wolfes to interviews. That conclusion makes no sense and is
objectively unreasonable.
Finally, in arguing for an expansion of the COA,
Browning lists a number of other alleged deficiencies in
Pike’s representation.19 Because we find that Browning’s
ineffective assistance of counsel claim succeeds on other
grounds, we do not here assess these other alleged
deficiencies.
Our IAC analysis is based on the fundamental obligations
of each attorney, and is not a product of hindsight. See Bell,
535 U.S. at 702. Pike had “countless ways” to investigate
19
These include: Pike’s not offering evidence at trial that Browning
had no blood, cuts, or scrapes on his body when he was arrested; failing
to secure Gaylord’s testimony; not challenging the prosecution’s assertion
that when they entered the Wolfes’ apartment Browning was “surrounded”
by jewelry; not objecting to the prosecutor’s improper closing statements;
not bringing out at trial that Browning had no heroin in his body when he
was arrested; not objecting to Seaton’s claim that the tan jacket had Hugo
Elsen’s blood on it; not presenting evidence demonstrating that Gaylord
was not in jail on November 8, 1985; never obtaining a forensic evaluation
of the knife; and never getting a witness to testify that Randy Wolfe tried
to sell the jewelry.
BROWNING V. BAKER 57
adequately Browning’s case. We do not limit him to just
“one technique or approach.” Richter, 562 U.S. at 106. And
to be sure, Pike’s “poking holes” and “casting shadows”
strategy could have been appropriate under the right
circumstances. See id. at 109 (“To support a defense
argument that the prosecution has not proved its case it
sometimes is better to try to cast pervasive suspicion of doubt
than to strive to prove a certainty that exonerates.”). But to
reach the conclusion that this strategy was reasonable, Pike
first had an obligation “to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
Here, Pike did neither. His failure to investigate what
happened on November 8, 1985, “so undermined the proper
functioning of the adversarial process that [Browning’s] trial
cannot be relied on as having produced a just result.” Id. at
686.
We conclude that Pike unreasonably failed to investigate
Browning’s case, and that the Supreme Court of Nevada
unreasonably concluded that Browning failed to prove just
that.
C
We now consider whether the unprofessional deficiencies
identified above prejudiced Browning. Despite its differing
terminology, prejudice in the IAC context mirrors the
materiality standard under Brady. We ask whether there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694; see Gentry v.
Sinclair, 705 F.3d 884, 906 (9th Cir. 2013) (“Brady
materiality and Strickland prejudice are the same.”). To meet
58 BROWNING V. BAKER
this standard, Browning must demonstrate a reasonable
probability that had Pike conducted an adequate investigation,
“at least one juror would have harbored reasonable doubt
about” Browning’s guilt. Buck v. Davis, 137 S. Ct. 759, 776
(2017). Because we defer to the Supreme Court of Nevada’s
decision under AEDPA, our ultimate inquiry is whether that
court’s conclusion that any deficient performance by Pike did
not prejudice Browning was objectively unreasonable. We
conclude that it was.
We have already explained in detail why the
prosecution’s case against Browning was quite weak. In fact,
because the standards of materiality for Brady and Strickland
are the same, our materiality analysis above is in large part
identical to the assessment of the prejudicial effect of Pike’s
ineffective assistance. But while we will not repeat that
analysis here, we cannot just incorporate the materiality
section above in its entirety. The evidence to consider in the
IAC context differs in one important aspect: even if Schopp
had interviewed the Wolfes, there is no reason to believe that
Randy would have made any mention of his expectation that
he would receive leniency in exchange for his testimony
against Browning. After all, Randy stated explicitly at
Browning’s trial that he was not anticipating any such benefit.
We therefore consider, for purposes of assessing prejudice in
the context of Browning’s IAC claim, the following facts that
would have been available to Browning had Pike engaged in
an adequate investigation: (1) that the shoeprints could not
have been created by a paramedic or responding officer, and
(2) that Hugo Elsen described his assailant not as having a
Jheri Curl, but as having shoulder-length, wet, loosely-curled
hair. As discussed above, this evidence would have had a
significant impact on Browning’s case. The bloody
shoeprints were the only evidence left in the store during the
BROWNING V. BAKER 59
period between the robbery and the arrival of the first-
responders, and the evidence does not support that the
shoeprints were left by Josy Elsen or Debra Coe . This leaves
Browning with evidence that someone else—not Browning,
not Josy, not Coe—was in the store with Hugo Elsen before
the arrival of the first-responders. Such evidence would have
been significantly and uniquely exculpatory. Cf. Richter,
562 U.S. at 112 (rejecting petitioner’s prejudice claim
because it “established nothing more than a theoretical
possibility” that petitioner’s defense theory was true);
Pinholster, 563 U.S. at 200–01 (rejecting petitioner’s
prejudice claim because the evidence at issue was duplicative
of other evidence presented to the jury).
And Hugo’s description of his assailant’s hair is powerful
evidence of Browning’s innocence. As stated above, Hugo’s
view and description of the assailant suffers from none of the
flaws inherent in each of the other eyewitness accounts
involved in this case. Officer Branon said it was not possible
that Hugo was mistaken about his description of the assailant.
And Woods’s description of Browning running towards him
on the sidewalk away from the Elsens’ store—with not a drop
of blood on him or a piece of jewelry in his hands—is, if
anything, supportive of Browning’s innocence.
As described in great detail above, the prosecution’s
evidence was far from overwhelming. There is a strong
possibility that had Pike offered the evidence he would have
obtained if he had made a reasonable investigation, at least
one juror would have harbored reasonable doubt. Browning
would have so substantially benefitted from that evidence that
it was objectively unreasonable for the Supreme Court of
Nevada to conclude to the contrary.
60 BROWNING V. BAKER
V
Our conclusions above regarding Browning’s claims
under Brady and Strickland involve only his convictions
relating to the robbery and murder of Hugo Elsen. They do
not affect the validity of his escape conviction. It is not clear
from Browning’s habeas petition whether he challenges his
escape conviction. But even assuming he means to challenge
that conviction, he has identified no exculpatory evidence
withheld that would have affected the jury’s decision to
convict him of escape under Nev. Rev. Stat. § 212.090. And
while Pike’s investigation into Browning’s case was
deficient, Browning points to no evidence that Pike would
have obtained had he reasonably investigated the case that
would have affected the jury’s decision on the escape count.
In sum, while Browning has demonstrated that he is entitled
to habeas relief from his murder- and robbery-related
convictions, he is not entitled to relief from his escape
conviction.
VI
The Supreme Court of Nevada’s denial of Browning’s
claims under Brady and Strickland constituted an
unreasonable application of clearly established Supreme
Court precedent. Browning is entitled to a writ of habeas
corpus with respect to his convictions of burglary, robbery
with the use of a deadly weapon, and murder with the use of
a deadly weapon. Because Browning has offered no reason
to call the validity of his escape conviction into question, he
is not entitled to habeas relief as to that conviction.
BROWNING V. BAKER 61
We AFFIRM in part, REVERSE in part, and
REMAND to the district court for further proceedings
consistent with this decision.
CALLAHAN, Circuit Judge, dissenting in part:
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) “circumscribe[s]” a federal court’s role in
reviewing a habeas claim that was “adjudicated on the merits
in State court proceedings.” Johnson v. Williams, 568 U.S.
289, 298 (2013) (quoting 28 U.S.C. § 2254(d)); Wiggins v.
Smith, 539 U.S. 510, 520 (2003). The Supreme Court has
made clear, time and again, that our task is limited to
deciding whether the state court was “objectively
unreasonable” in its application of federal law, as determined
by the United States Supreme Court, or in its determination
of the facts that were before the trial court. See Lockyear v.
Andrade, 538 U.S. 63, 75 (2003); see also Johnson, 133 S.
Ct. at 1094.
Today’s majority gives short shrift to the Supreme
Court’s admonitions. Along the way, it misapplies Supreme
Court case law, embarks on its own fact-finding mission, and
overrules the jury’s credibility determinations. A meaningful
application of our deferential standard of review under
AEDPA, by contrast, compels the conclusion that the Nevada
Supreme Court was not objectively unreasonable in rejecting
Browning’s Ineffective Assistance of Counsel (“IAC”) claim,
as well as his claims under Brady v. Maryland, 373 U.S. 83(1963) and Napue v. Illinois, 360 U.S. 264 (1959). I
62 BROWNING V. BAKER
respectfully dissent and would deny Browning’s habeas
petition.1
I. Background
Sometime between 4:00 p.m. and 4:30 p.m. on November
8, 1985, Hugo Elsen was stabbed to death inside his jewelry
store. In the course of the murder, the assailant smashed a
glass display case and stole some 72 pieces of jewelry.
The police immediately identified Browning as a suspect
based on eyewitness accounts and circumstantial evidence.
Three individuals identified Browning at or near the jewelry
store around the time of the murder. Hugo’s wife, Josy,
actually witnessed the murder. She saw a “black man with a
blue cap” raise a knife over Hugo. While she got only a side
view of the attacker, she noted that his hair “was a little bit
puffed out on the bottom” of his cap. That description was
consistent with Browning’s Afro-like hairstyle. Police later
recovered a blue cap with the word “Hollywood” on it in a
dumpster near Browning’s motel room. At trial, Josy
identified that cap as the one worn by the killer. Presented
with a photographic lineup approximately a month after the
murder, which included a photo of Browning, Josy did not
choose Browning’s photo. However, when confronted with
Browning in person at trial, Josy gave a positive identification
of Browning as the assailant.
After Josy witnessed the murder, she ran out the back of
the shop to the business next door and asked someone to call
the police. Debra Coe was in the neighboring office, located
1
I concur in the majority’s rejection of Browning’s Napue claim and
in its affirmance of his escape conviction.
BROWNING V. BAKER 63
just south of the Elsens’ store. When Josy told her that “there
was a man standing over Hugo with a knife,” Coe went to the
front of her office and saw a black man running “south.” Coe
identified the man as wearing a blue cap, a jacket, and Levi’s,
with hair sticking out about an inch from underneath the cap.
At trial, Coe identified the blue “Hollywood” cap—presented
as a state trial exhibit—as the one worn by the person she saw
run by her office.
Later the same day, the police presented Coe with two
men. She stated that the first man was “definitely not” the
person she saw. The police then presented Browning, who
was wearing no cap, shirt, or jacket. Coe said she “thought”
Browning was the person she saw run by her office, but that
she would have been more certain had he been wearing the
cap and jacket. She noted, however, that his hair was
“pressed down” as though he had been wearing a cap. When
asked if she could be “more sure in [her] mind,” Coe said
“[n]o, I wouldn’t think so, no . . . . they all look the same and
that’s just what I think when I see a black person, that they all
look the same.” Coe retracted this statement at trial,
testifying that she did not really think that all black people
looked the same. At trial, Coe positively identified Browning
as the man she saw run by her office.
Charles Woods owned a jewelry store three doors south
of the Elsens’ shop. At around 4:30 p.m., he was standing
outside the front of his store when he saw a black man
jogging toward him. The man was wearing a dark-colored,
“beret”-style cap, a light-colored shirt, and dark pants. Later
that day, the police presented Woods with Browning, as they
did with Coe, and Woods positively identified Browning as
the man he saw. He also positively identified Browning at
trial, though, unlike Josy and Coe, he testified that the hat
64 BROWNING V. BAKER
found near Browning was not the same one worn by
Browning.
Bradley Hoffman owned a store two doors from the
Elsens’. At trial, he testified that he saw a man walk by his
shop and approach the Elsens’ store about 20 minutes before
the robbery-murder. He described the man as a Cuban, with
a slight build, wearing Levi’s jeans and a blue baseball cap.
Like Coe and Woods, Hoffman was presented with Browning
by the police later that day. He stated that Browning was not
the man he saw. He also testified that the blue “Hollywood”
cap recovered by the police, and positively identified by Josy
and Coe, was not the cap worn by the man he saw.
Hugo also identified his assailant. Officer David
Radcliffe was one of the first officers on the scene. He found
Hugo lying in a pool of blood and in an “extremely serious”
condition. Hugo identified his attacker as “a black man
wearing a blue baseball cap.” Officer Gregory Branon also
arrived early on the scene, and he, too, received a description
of the attacker from Hugo. Hugo stated that the suspect was
a “black male” who was “wearing a blue baseball cap, blue
windbreaker-type jacket, blue Levi’s” and who had “shoulder
length” hair. At trial, Branon testified that the description he
received2 included a description of the attacker’s hair as a
“J[h]eri-type curl.”
Besides the eyewitness identifications, two
witnesses—Randy Wolfe and his wife, Vanessa—testified
that Browning confessed to them to committing the crime. At
the time, the Wolfes, as well as Browning and his girlfriend,
2
Branon did not identify Hugo as the source of the description until
post-conviction proceedings some 15 years later.
BROWNING V. BAKER 65
Marcia Gaylord, resided at the Normandy Motel. The two
couples were acquainted. According to Randy, shortly after
the robbery-murder, Randy found Browning in the Wolfes’
room, wearing a blue “Hollywood” cap and surrounded by
some of the stolen jewelry. Browning admitted to Randy to
stealing the jewelry and killing Hugo. Randy then left to get
the police, at which point Vanessa entered the room.
According to Vanessa, she found Browning with a knife, and
saw the “Hollywood” cap on the floor. Like Josy and Coe,
Vanessa identified the state’s trial exhibit as the cap she saw
near Browning.
According to Vanessa, Browning asked her to help him
dispose of the evidence. Vanessa threw his shirt and cap in
a dumpster and hid the knife in a small closet under the
stairway of the motel. The police later recovered the items.
At trial, expert testimony established that the knife was
“consistent” with Hugo’s wounds. Browning was arrested in
the Wolfes’ motel room approximately half an hour after the
murder. Several pieces of the stolen jewelry were in the room
with him, as well as a tan jacket.
The prosecution also presented physical evidence. The
tan jacket had blood on it, which was later identified as Type
B—Hugo’s blood type. Browning’s fingerprints were also
found at the crime scene. Identification Specialist David
Horn testified at trial that several of the showcase counters
had been “disturbed,” and that a glass door on the vendor’s
side of one of the counters was broken. Browning’s prints
were found on top of one of the counters and also on a
fragment from the vendor-side glass door, which is the
employee area.
66 BROWNING V. BAKER
Several pieces of exculpatory evidence were presented at
trial. Horn testified to finding bloody shoeprints leading from
Hugo’s body to the front door of the Elsens’ store. Those
prints were consistent with a tennis shoe and did not match
the shoes Browning was wearing at the time of his arrest.
Browning’s trial counsel, Randall Pike, also called a hairstyle
expert to testify to the difference between a Jheri curl and an
Afro. Branon had testified that the description he received
was of a person with “shoulder-length,” “J[h]eri curl” hair,
whereas Browning had an Afro-style haircut. Pike presented
the hairstylist with the same photographic lineup that the
police showed Josy. She stated that four of the photos
depicted individuals with Jheri curls—none of them was
Browning.
Finally, the jury was presented with substantial evidence
relevant to the Wolfes’ credibility. The jury knew that the
Wolfes were habitual heroin and cocaine users, that Vanessa
was a prostitute, that Randy had several prior convictions,
that Randy was awaiting sentencing in another case, that
Vanessa used to “bilk people out of their money,” that Randy
had kept some of the stolen jewelry, and that Randy had lied
under oath about doing so at a preliminary hearing.
Ultimately, the exculpatory evidence was not enough to
create reasonable doubt in any of the jurors’ minds. A
Nevada jury found Browning guilty of four counts related to
a robbery and murder at a Las Vegas jewelry store and
sentenced him to death. See Browning v. State, 757 P.2d 351(Nev. 1988).
BROWNING V. BAKER 67
II. Procedural History
In 2004, the Nevada Supreme Court affirmed Browning’s
conviction in a state habeas proceeding. Browning v. State,
91 P.3d 39 (Nev. 2004). Browning argued, as is relevant to
the instant appeal, that the prosecution withheld Brady
material—i.e., exculpatory evidence—and that his trial
counsel, Randall Pike, provided ineffective assistance for
failing to adequately investigate his case. See id. at 45, 54.
As is relevant here, Browning identified three pieces of
allegedly exculpatory evidence in the state court post-
conviction proceedings. First, he argued that the prosecution
should have disclosed Officer Branon’s observation that the
bloody shoeprints at the crime scene predated the arrival of
police and other first responders. Id. at 55. Second, he
argued that the prosecution should have disclosed that the
term “Jheri curl” came from a black police officer (Branon),
rather than the white victim. Id. Third, he claimed that the
prosecution withheld information regarding a benefit given to
Randy Wolfe.3 Id. at 54–55.
Browning also argued that Pike was ineffective for,
among other things, failing to interview Branon. Id. at 46.
Browning reasoned that had Pike done so, he would have
3
Pretrial, the prosecution stipulated that Randy was not promised
anything for his testimony, a point that Randy confirmed on the stand. See
Browning, 91 P.3d at 55; Trial Tr. at 4 (Dec. 8, 1986). During post-
conviction proceedings, Prosecutor Seaton admitted that after Browning’s
trial, he told the judge in a case in which Randy was the defendant that
Randy had helped with Browning’s trial. Id. Randy ended up receiving
probation for attempted possession of stolen property—a conviction that
could have resulted in a 5-year sentence. Seaton also helped Randy secure
a job. Id.68 BROWNING V. BAKER
discovered that the bloody shoeprints could not have been left
by first responders, and that Hugo’s description of his
attacker’s hair did not include the term “Jheri curl.” Id.Moreover, Browning argued that Pike should have
interviewed the Wolfes, as they were the prosecution’s key
witnesses. Id.The Nevada Supreme Court upheld Browning’s guilty
verdict.4 As to Browning’s IAC claim, the court ruled that it
was a reasonable trial strategy to not interview Branon to
discover his knowledge of the bloody shoeprints. Id. at 46.
Pike’s investigation was sufficient to determine that the prints
did not match Browning. Id. The court held that it was a
“reasonable, tactical decision to leave the source of the prints
uncertain.” Id. That way, Pike could argue that the real killer
was the source. Id. Had he investigated further, he may have
discovered that first responders were responsible for the
prints, thereby neutralizing this defense. Id.As for Pike’s failure to interview the Wolfes, the court
held that it was a reasonable tactic for Pike to delegate
witness interviews to his investigator, lest he interview
witnesses personally and risk becoming a percipient witness
himself. Id. Moreover, Pike’s investigator had “gathered
enough information to permit [Pike] to adequately cross-
examine the Wolfes on their version of events, their drug
usage, their informer status, their lying, and their convictions
and arrests.” Id.4
The Nevada Supreme Court reversed the district court’s denial of
Browning’s challenge to his sentence of death, Browning, 91 P.3d at 56,
but the jury subsequently reinstated the death sentence on remand and the
Nevada Supreme Court affirmed in Browning v. State, 188 P.3d 60 (Nev.
2008).
BROWNING V. BAKER 69
Finally, while the court concluded that Pike was deficient
for not discovering that “Jheri curl” was Branon’s term and
not Hugo’s, it held that this was not prejudicial because the
“issue of Browning’s hairstyle was extensively explored at
trial.” Id.As to Browning’s Brady claims, the Nevada Supreme
Court held that the prosecution should have disclosed the
benefit to Randy Wolfe. Id. at 54–55. The court reasoned
that, “[u]nder Brady, even if the State and a witness have not
made an explicit agreement, the State is required to disclose
to the defense any evidence implying agreement or an
understanding.” Id. at 55. Even so, the court ruled that there
was no “reasonable probability of a different result” had the
information been disclosed because Randy’s “credibility was
extensively challenged at trial.” Id. The court also rejected
Browning’s bloody shoeprint Brady claim, noting that it had
already deemed that information to be immaterial in the IAC
context, and that the information was available to the defense
had Pike interviewed Branon. Id. The court similarly
rejected Browning’s Brady claim regarding the hairstyle
evidence, noting that this information was, like the shoeprint
evidence, available to the defense. Id.
Finally, the Nevada Supreme Court considered whether
any errors, considered cumulatively, were prejudicial. Id. at
56. As is relevant here, the court considered Pike’s failure to
discover Hugo’s true description of the killer’s hair, and the
prosecution’s failure to turn over impeachment evidence
regarding Randy Wolfe. Id. It determined that there was no
“reasonable probability” that Browning would not have been
convicted but for the cumulative effect of the errors. Id. The
court reasoned that the “evidence of Browning’s guilt remains
overwhelming.” Id.
70 BROWNING V. BAKER
Browning filed a petition for a writ of habeas corpus in
the United States District Court for the District of Nevada.
On November 28, 2011, Browning filed his Fifth Amended
Petition, which is the petition before us. On August 1, 2014,
the district court denied Browning’s petition. The district
court granted Certificates of Appealability (“COA”) on the
issues of (i) whether the prosecution committed a Brady or
Napue violation by failing to turn over information regarding
the bloody shoeprints, (ii) whether the prosecution committed
a Brady violation by failing to turn over evidence of a benefit
to Randy Wolfe, and (iii) whether Pike provided ineffective
assistance by failing to investigate the source of the bloody
shoeprints, Hugo’s description of his attacker’s hair, and the
Wolfes’ credibility. Browning appealed.
III. Standard of Review
We review the district court’s decision de novo, while
applying AEDPA’s “highly deferential standards” to the last
reasoned state court decision—here, the Nevada Supreme
Court’s 2004 denial of post-conviction relief. Davis v. Ayala,
135 S. Ct. 2187, 2198 (2015); see Reis-Campos v. Biter,
832 F.3d 968, 973 (9th Cir. 2016), cert. denied, 137 S. Ct.
1447 (2017). The state court’s decision receives binding
deference unless it is “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” at
the time of the state court’s decision, or if it was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2); Wiggins, 539 U.S. at 520.
Surmounting AEDPA deference is “daunting.” Taylor v.
Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). This is by
BROWNING V. BAKER 71
design out of respect for state court proceedings, and is
“satisfied in relatively few cases.” Id.; see also Williams,
133 S. Ct. at 1094. “[AEDPA] reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 562 U.S.
86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S.
307, 332 n.5 (1979) (Stevens, J., concurring)). It is not
enough that a federal court determine, in its “independent
judgment,” that the “state-court decision applied clearly
established federal law erroneously or incorrectly . . . .
Rather, that application must be objectively unreasonable.”
Lockyear, 538 U.S. at, 75–76 (emphasis added and internal
citation omitted). Where “it is possible to read the state
court’s decision in a way that comports with clearly
established federal law . . . we must do so.” Mann v. Ryan,
828 F.3d 1143, 1157–58 (9th Cir. 2016). In other words, we
must uphold a state court determination even if we would
have concluded, on de novo review, that the state court
committed legal error, so long as a fair-minded jurist could
decide otherwise. See Lockyear, 538 U.S. at 75–76. To
overrule a state court’s decision requires that its ultimate
conclusion be so unreasonable that it there is no “possibility
for fairminded disagreement.” Ayala, 135 S. Ct. at 2199(internal quotation marks omitted). Finally, a federal court
may not review the facts of a case de novo; we must begin
with the “presumption” that the state court’s factual
determinations are correct. Taylor, 366 F.3d at 999.
IV. Browning’s Claims for Relief
Browning’s petition comes down to three pieces of
evidence: the description of the assailant provided by the
victim, Hugo Elsen; bloody shoeprints leading from Hugo’s
72 BROWNING V. BAKER
body; and the benefit received by Randy Wolfe for his
testimony. None of this evidence compels a finding that the
Nevada Supreme Court was objectively unreasonable in
rejecting Browning’s petition for post-conviction relief.
First, Hugo’s description of the killer was presented to the
jury, and the jury knew that the description conflicted with
other eyewitness testimony. That the jury did not know the
term “Jheri curl” was the testifying officer’s and not the
victim’s did not appreciably diminish this conflict. Second,
Pike’s ignorance of the fact that the bloody shoeprints
predated the arrival of first responders did not undercut his
defense that someone other than Browning committed the
murder because he did know that the prints did not match
Browning. And third, the jury was presented with a
cavalcade of impeachment evidence against Randy and
Vanessa Wolfe. That the jury did not know that the
prosecution would later help Randy secure a benefit for his
testimony against Browning—a fact that apparently Randy
did not even know—makes no difference because it was not
reasonably probative of his credibility. And even if it was,
the information was, at most, cumulative.
The weakness of the alleged exculpatory evidence is
enough to reject Browning’s habeas petition on its own. But
it positively blanches when set against the substantial
evidence inculpating Browning: his fingerprints were found
on the vendor’s side of a glass display case, which is off-
limits to customers; he was found by police with some of the
stolen jewelry; numerous eyewitnesses identified him; and he
confessed to the Wolfes.
BROWNING V. BAKER 73
a. Browning Fails to Establish a Brady Violation
Because the Purported Brady Evidence Is Either
Not Exculpatory or Not Material
The Nevada Supreme Court decided Browning’s Brady
claim on the merits. We therefore apply AEDPA’s
deferential standard of review, and may only find a Brady
violation if the state court’s decision was an objectively
unreasonable application of Supreme Court law or an
unreasonable determination of the facts. 28 U.S.C.
§ 2254(d)(1), (2).
Under Brady v. Maryland, the prosecution must disclose
“evidence that is both favorable to the accused and material
either to guilt or to punishment.” United States v. Bagley,
473 U.S. 667, 674 (1985) (internal quotation marks omitted).
“‘Evidence is material within the meaning of Brady when
there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been
different.’” Turner v. United States, 137 S. Ct. 1885, 1893
(2017) (quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)).
“‘A reasonable probability of a different result is one in
which the suppressed evidence undermines confidence in the
outcome of the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S.
419, 434 (1995)).
Thus, to establish a Brady violation, a
defendant must prove: 1) the evidence at issue
is favorable to the accused, either because it is
exculpatory, or because it is impeaching,
2) the evidence was suppressed . . . either
willfully or inadvertently, and 3) prejudice
resulted, meaning there is a reasonable
74 BROWNING V. BAKER
probability that disclosing the evidence to the
defense would have changed the result.
Andrews v. Davis, 798 F.3d 759, 793 (9th Cir. 2015) (internal
quotation marks and adjustments omitted) (citing Strickler v.
Greene, 527 U.S. 263, 281–82 (1999); Bagley, 473 U.S. at
682).
The Nevada Supreme Court reasonably concluded that no
Brady violation occurred because the hairstyle and
impeachment evidence is not exculpatory, and, while the
shoeprint evidence is exculpatory, a fair-minded jurist could
deem it immaterial when viewed collectively with the
abundant evidence of Browning’s guilt.
i. Whether the Purported Brady Material Is
Exculpatory
1. The Hairstyle Evidence
The jury did not know that Officer Branon received a
description of the assailant from the victim himself. Instead,
Branon recounted the description that Hugo gave him,
without identifying its source. He told the jury that
[t]he description we received was black male,
adult in his late twenties, wearing a blue
baseball cap, blue windbreaker-type jacket,
blue Levi’s. He was medium complexioned,
bore a mustache and what was described as a
shoulder length J[h]eri-type curl.
This was a mostly accurate reporting of Hugo’s dying
declaration, except that the term “J[h]eri-type curl” was
BROWNING V. BAKER 75
Branon’s, not Hugo’s. Browning argues that the
prosecution’s failure to turn over the fact that Branon’s
description came from the victim himself, and that the term
“J[h]eri-type curl” was Branon’s, not Hugo’s, was materially
exculpatory.
The Nevada Supreme Court held that no Brady violation
occurred because the exculpatory information was
“reasonably available to the defense.” Browning, 91 P.3d at
55. And, at any rate, the information did not give rise to a
“reasonable probability of a different result.” Browning,
91 P.3d at 46. This was because the “issue of Browning’s
hairstyle was extensively explored at trial.” Id.The Nevada Supreme Court’s conclusion was not
objectively unreasonable because a fair-minded jurist could
conclude that the hairstyle evidence was not exculpatory, let
alone materially so. See Ayala, 124 S. Ct. at 2199. The
majority concludes otherwise only by asserting a novel view
of Brady that extends the state’s obligations into the murky
zone of interpretations of otherwise neutral facts. That “Jheri
curl” was Branon’s term and not Hugo’s does not help
Browning. The only basis for deeming this information
potentially exculpatory is that Prosecutor Daniel Seaton
leveraged its purported source—Hugo, a white male—to
argue that the speaker probably confused the terms Afro and
Jheri curl. Seaton reasoned that the declarant was just “some
white person” who didn’t “really know[] the true definition
of J[h]eri-curl.” But while it is true that the source of the
term was a black male, the evidence itself is not exculpatory,
and the jury was free to disregard Seaton’s unsubstantiated
speculation as just that.
76 BROWNING V. BAKER
2. The Benefit to Randy Wolfe for His
Testimony
It is undisputed that the prosecution intervened on Randy
Wolfe’s behalf in a separate trial in which Randy was the
defendant after Randy testified in Browning’s trial. Yet the
Nevada Supreme Court determined that the prosecution
should have disclosed the benefit to the defense. Browning,
91 P.3d at 54–55. The court reasoned that “the State is
required to disclose to the defense any evidence implying an
agreement or an understanding.” Id.It appears that the Nevada Supreme Court’s determination
was not based on any facts in the record. Both Randy and
Prosecutor Seaton stated that there was no plea bargaining
with Randy Wolfe regarding Browning’s case, and Browning
points to nothing in the record showing that Randy expected
a benefit for his testimony. The Nevada Supreme Court
therefore erred in concluding that the evidence was
exculpatory. See Amado v. Gonzalez, 758 F.3d 1119, 1136
(9th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(2)) (state court
made an “unreasonable determination of the facts” where
“[t]here was nothing in the record that could support” its
finding).
The majority correctly notes that the evidence could only
be exculpatory if Randy actually expected a benefit for his
testimony that was not already disclosed. But the Nevada
Supreme Court never made such a finding. Under AEDPA,
we are not entitled to weave facts out of whole cloth just to
make sense of a state court’s determination. See id. Because
nothing in the record shows that any deal was
made—expressly or otherwise—between Seaton and Randy
BROWNING V. BAKER 77
at the time of trial, nothing was suppressed and no Brady
violation occurred.5
3. The Bloody Shoeprint Evidence
The jury knew that the bloody shoeprints leading from
Hugo’s body to the front of the Elsens’ store did not match
the loafers Browning wore at the time of his arrest. But post-
conviction testimony also established that Branon knew that
the shoeprints were present before first responders arrived at
the scene. Under Brady, that knowledge is imputed to the
prosecution as a whole. Kyles, 514 U.S. at 437–38 (the
“individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s
behalf in the case, including the police”). Yet Specialist Horn
testified that the prints were consistent with tennis shoes, and
noted that first responders often wear tennis shoes at crime
scenes. The jury was therefore left with the impression that
first responders may have left the shoeprints. That was false.
Moreover, the prosecution offered no evidence to suggest that
someone besides the true killer could have been the source of
5
The majority goes to great lengths in an attempt to shore up the
Nevada Supreme Court’s determination. Besides imputing to that court
a finding that it did not make, the majority argues that it doesn’t matter
anyway because federal courts are powerless to review a state court’s
findings that favor the habeas petitioner. But the federal habeas statutes
are only a one-way ratchet with respect to who may seek federal court
review. See 28 U.S.C. § 2254(a). While only a prisoner may invoke a
federal court’s jurisdiction to challenge his detention, nothing in the
habeas statutes prevents a federal court from reviewing the entire
record—including facts that the state court construed as favorable to the
petitioner—once it has properly asserted jurisdiction. The majority cites
no authority for the proposition that a state court’s factual (or legal) errors
are impervious to challenge in such a situation.
78 BROWNING V. BAKER
the prints. Evidence that the shoeprints were present before
the first responders arrived was therefore exculpatory.
ii. Whether the Purported Brady Evidence is
Material
The majority correctly notes that the three Brady claims
must be considered “collectively” to determine whether they
are material. Kyles, 514 U.S. at 436; Turner, 137 S. Ct. at
1895 (considering the “cumulative effect of the withheld
evidence”). Materiality is a determination of whether
disclosure of all pieces of exculpatory evidence, taken
together, gives rise to a “reasonable probability” of a different
outcome. See Cullen v. Pinholster, 563 U.S. 170, 189 (2011).
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.The majority concludes that the cumulative effect of three
pieces of evidence—Hugo’s description of his killer’s
hairstyle, the source of the bloody shoeprints, and the benefit
for Randy Wolfe’s testimony—tips the scales in favor of a
finding of materiality.6 The majority’s conclusion is not
compelled either by the evidence or binding Supreme Court
law.
6
Tellingly, the majority arrives at this conclusion only after sua
sponte expanding the certificate of appealability to include an alleged
Brady violation not even raised by Browning on appeal: Hugo’s
description of his assailant’s hairstyle. Considering our obligation to
consider Brady evidence cumulatively to determine its prejudicial effect,
it is unclear whether the majority could have found a Brady violation if the
certificate was limited to the two claims that Browning actually raised
before this court.
BROWNING V. BAKER 79
1. The majority errs by assuming that the benefit to Randy
Wolfe and the hairstyle evidence is Brady material. As
discussed (see Part IV.a.1, 2), both pieces of evidence are
reasonably viewed as not exculpatory and so withholding the
information has no material impact on the case. But even if
the hairstyle evidence could be deemed exculpatory because
its disclosure would have foreclosed Seaton’s argument that
“some white person” confused the terms “Jheri curl” and
“Afro,” it was not unreasonable for the Nevada Supreme
Court to deem it immaterial. The majority concedes that all
of the words Branon used to describe Browning’s hair are
inconsistent with an Afro—“Jheri curl,” “shoulder length,”
“loosely curled,” and “wet.” In other words, Branon’s use of
the term “Jheri curl” did nothing to diminish the conflict in
the eyewitness testimony that was squarely before the jury.7
On the one hand, Hugo described Browning as having wet,
shoulder-length hair. On the other, Josy and Coe described
the person they saw as having short hair that “puffed” or
stuck out the back of a blue cap. That the jury was also
exposed to the term “Jheri curl” does not somehow reconcile
these inconsistent accounts.
The term “Jheri curl” also lost its salience over the course
of the trial. Browning’s counsel presented a hairstyle expert,
Annie Yates, who testified to the difference between a Jheri
curl and an Afro. Pike then showed her a 12-person
photographic array and asked her to identify which persons
7
The majority suggests otherwise, asserting that the “precise words
Hugo used to describe his assailant’s hair” is material under Brady
because Hugo’s description of his assailant as having shoulder-length hair
“was markedly different from Browning’s hair on the day of the
murder—an Afro.” But the defense did know that Hugo’s description
included the term “shoulder-length hair,” and that information was
presented to the jury.
80 BROWNING V. BAKER
had Jheri curls. The array included a picture of Browning.
Yates stated that four of the persons had Jheri curls, none of
whom was Browning. The jury therefore knew that
Browning’s Afro hairstyle was inconsistent with a Jheri curl.
Accordingly, it was not objectively unreasonable for the
Nevada Supreme Court to reject the hairstyle Brady claim
because the hairstyle evidence was not materially
exculpatory.
Undeterred, the majority insists that the information was
critical to the defense because, it reasons, “Jheri curl” is the
only term “susceptible to the argument that the speaker could
have seen an Afro and used the wrong term because he was
unfamiliar with African American hairstyles.” But the fact
that Seaton leveraged the term’s relative obscurity to spin
speculation does not detract from the fact that a fair-minded
juror could reasonably dismiss such conjecture as unfounded.
See Ayala, 135 S. Ct. at 2199. Moreover, Seaton’s argument
makes no sense, because the description Branon
received—and which was before the jury—included the fact
that the assailant’s hair was “shoulder length.” Thus, even if
the jury entertained the far-fetched notion that the speaker
said “Jheri-curl” when he meant “Afro,” it was still faced
with a clear conflict in the evidence: was the assailant’s hair
shoulder-length or in an Afro?
2. As to the bloody shoeprint evidence, the majority
chides the Nevada Supreme Court for engaging in “pure
speculation” for suggesting that the prints were probably left
by Josy or Coe. To be sure, the evidence did not support such
a conclusion. But neither did it suggest otherwise. Under
AEDPA, our review is limited to the original trial record,
Pinholster, 563 U.S. at 181, and nothing in that record
indicates that the shoeprints were not those of Josy or Coe.
BROWNING V. BAKER 81
The majority buries this fundamental rule in a footnote, while
simultaneously embarking on its own fact-finding mission,
concluding that, based on its review of the images of the
shoeprints, “the shoeprints appear to us larger than those of
a typical woman’s shoe.” Tellingly, the majority cites no
expert testimony from the trial record to support its
observation—because there is none. Leading with its chin,
the majority commits double error under AEDPA: not only
does it draw its own evidentiary conclusions, see Taylor,
366 F.3d at 999, but it engages in the very “speculation” for
which it roundly criticizes the Nevada Supreme Court.
Limiting our review to the trial record, as we must, the
shoeprints’ provenance is unknown. What was known at the
time of trial, and what was presented to the jury, was the fact
that the shoeprints did not match Browning. In other words,
they pointed to someone else, which is consistent with the
defense’s theory that a black Cuban associate of the Wolfes
committed the crime. Had the defense known that the prints
predated the arrival of the first responders, its theory would
have been the same. And to the extent the information had
some exculpatory value by eliminating one innocuous
explanation for the prints (i.e., that they were left by first
responders), the record does not compel a conclusion that the
information was material. Indeed, even had the jury known
that first responders were not the source, it could have
reasonably inferred that the prints may have been left by a
person who was not the killer—e.g., Josy, Coe, or someone
else entirely. Either way, while the jury was left speculating
about the prints’ origin, it knew that they did not incriminate
Browning.
3. Finally, even if the shoeprint evidence, viewed in a
vacuum, was significant, it is reasonably deemed immaterial
82 BROWNING V. BAKER
when considered collectively with the evidence inculpating
Browning. We assess the combined effect of both
undisclosed exculpatory evidence and the evidence that was
before the jury as a whole in determining whether there is a
“reasonable probability” that disclosure of Brady material
would have changed the outcome. See Kyles, 514 U.S. at 437(materiality of Brady evidence is judged according to the “net
effect” of the evidence). As the Nevada Supreme Court
found, substantial evidence inculpated Browning:
• Browning’s fingerprints in the Elsens’ store.
Browning’s fingerprints were found on the disturbed
jewelry counter—both on the top side of the glass and on
a fragment from the broken sliding-glass door on the
vendor’s side of the display case. The majority
minimizes this fact, which it concedes is “probably the
strongest evidence against Browning,” by surmising
various innocent explanations: the fingerprints could have
predated the murder, Browning may have made the prints
during the commission of the crime but someone else
stabbed Hugo, or the other unidentified prints at the scene
could belong to the true killer. But the jury could have
easily drawn a contrary conclusion: the fact that
Browning’s prints were found on a piece of glass broken
in the commission of the robbery-murder, and on the
vendor’s side of the glass case, points to his guilt.
Combined with the other inculpatory evidence (discussed
below), this would not have been an unreasonable
inference. Cf. Mikes v. Borg, 947 F.2d 353, 361 (9th Cir.
1991) (fingerprints alone—absent evidence that they were
made “during the commission of the crime”—are
insufficient evidence of guilt where the government’s
case is “supported solely by evidence that the defendant’s
BROWNING V. BAKER 83
fingerprints were found on th[e] object” (emphasis
added)).
• The eyewitness identifications. Three eyewitnesses—
Josy, Coe, and Woods—identified Browning as the
person they saw in or near the Elsens’ store around the
time of the murder. The majority insists the
identifications were “flawed” because Josy and Coe were
at first equivocal, and the police used a suggestive “show
up” identification procedure at the crime scene. But the
majority ignores Josy’s testimony that the person she saw
raise a knife over her husband wore a blue “Hollywood”
cap with a “puff[]” of hair protruding out the bottom—an
account that fits with Coe’s description of the alleged
assailant, matches Browning’s hairstyle at the time of
his arrest, and is consistent with the fact that the same
blue cap was found in a dumpster outside the Wolfes’
motel room.8 Moreover, Woods’ contemporaneous
identification of Browning was unequivocal. A fair-
minded jurist could therefore reasonably conclude that the
identifications were strong evidence of Browning’s guilt.
• The jewelry in the motel room. Police officers
discovered Browning with some of the stolen jewelry in
the Wolfes’ motel room shortly after the murder. The
majority notes that Browning’s fingerprints were not
found on the stolen jewelry, and the rest of the loot was
later turned over by the Wolfes. But the jury knew these
8
The majority also does not acknowledge the fact that Coe’s
identification is consistent with Browning’s own admission that he was
walking south near the store. However, because Browning testified to this
fact only in post-conviction proceedings, I do not consider it in the Brady
analysis. See Pinholster, 563 U.S. at 181.
84 BROWNING V. BAKER
facts and was entitled to infer guilt from this evidence
when considered with the other evidence inculpating
Browning.
• Browning’s Confession to Randy and Vanessa Wolfe.
The Wolfes’ testimony was devastating to the defense.
According to the Wolfes, Browning confessed to them to
committing the robbery-murder, and then asked Vanessa
to help cover it up.
To be sure, the Wolfes’ testimony was susceptible to
substantial impeachment. They were habitual drug users
with prior convictions and a penchant for lying. But all
of this was presented to the jury. The jury learned that
Randy had a history of illegal drug use, used heroin four
days before testifying, stole property, used his wife’s
prostitution to support his drug use, lied under oath in
Browning’s case about keeping some of the stolen
jewelry, had three prior felony convictions, and was
awaiting sentencing in a pending case. The jury was
entitled to credit the Wolfes’ testimony notwithstanding
that the Wolfes were, by all accounts, thoroughly
unscrupulous characters.
Tellingly, the majority provides no support for the
suggestion that the jury could not have reasonably
believed the Wolfes. Instead, it speculates that perhaps
one more piece of exculpatory evidence—e.g., the source
of the bloody shoeprints—would have tipped the scales
for at least one juror. But our role is not to reweigh the
evidence and make fresh credibility determinations. See
Williams v. Ryan, 623 F.3d 1258, 1266 (9th Cir. 2010).
Because the jury was entitled to credit the Wolfes’
testimony, and because that testimony directly implicated
BROWNING V. BAKER 85
Browning as the murderer, a fair-minded jurist could have
concluded that Browning’s confession to the Wolfes was
strong evidence of his guilt.
• The Knife. Vanessa Wolfe testified that she found
Browning with a knife in her motel room, and that he
asked her to help him dispose of it. If the jury believed
her, this was compelling evidence inculpating Browning.
Moreover, at trial, a prosecution expert testified that
Hugo’s injuries were “consistent” with wounds made by
the knife, though he did not know whether the particular
knife recovered by the police was the actual murder
weapon.9
In sum, the jury had before it substantial evidence
inculpating Browning. The majority concludes otherwise
only by reweighing the evidence: by deciding that the Wolfes
were not credible, dismissing the eyewitness identifications
of Browning as “flawed,” and minimizing the highly
inculpatory fingerprint evidence.10 In so doing, the majority
9
In post-trial proceedings, the defense submitted an affidavit by Dr.
William Chisum in which Dr. Chisum determined that Hugo’s wounds did
not “coherently coincide” with those of the recovered knife. But that
testimony, at most, created a conflict in the evidence. And, at any rate, we
are limited to considering the evidence that was before the trial court. See
Pinholster, 563 U.S. at 181.
10
The jury likely also considered the tan jacket found with Browning
in the Wolfes’ motel room, and which the prosecution identified as the
jacket worn by Browning in a photograph shown to the jury. The jacket
had Type B blood on it, which is the same blood type as Hugo. Prosecutor
Seaton argued in his rebuttal closing argument that this “proves
[Browning’s] guilt probably as much as anything.” Post-conviction
forensic testing revealed, however, that the blood was not Hugo’s.
Seaton’s statement was therefore unfairly prejudicial. Even so, the jury
86 BROWNING V. BAKER
ignores the presumption owed to the Nevada Supreme
Court’s factual determinations and decides for itself the
strength of the case against Browning. See Taylor, 366 F.3d
at 1000. That is error. Considering the limited exculpatory
value of the shoeprint evidence, combined with the
substantial evidence pointing to Browning’s guilt, the jury
could have convicted Browning even if it was presented with
the purported Brady material. The Nevada Supreme Court
was therefore not objectively unreasonable in rejecting
Browning’s Brady claim.
b. Browning’s Ineffective Assistance of Counsel
Claim Fails Because the Nevada Supreme Court
Was Not Objectively Unreasonable in Concluding
That Pike Acted According to a Reasonable Trial
Strategy
To prevail on his IAC claim, Browning must show (i) that
his trial counsel’s assistance fell below an objective standard
of reasonableness, and (ii) that but for his counsel’s deficient
performance, there is a “reasonable probability that . . . the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 691–94 (1984);
accord Hinton v. Alabama, 134 S. Ct. 1081, 1087–88 (2014);
Wiggins, 539 U.S. at 521. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)
(internal quotation marks omitted). This is a rigorous
standard. The defendant must show both that “counsel made
errors so serious that counsel was not functioning as the
was not left with the unassailable impression that the blood was, in fact,
Hugo’s. Indeed, Seaton conceded that “[t]here are other people in this
world with B blood.”
BROWNING V. BAKER 87
‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and that the “deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687.
The Nevada Supreme Court decided Browning’s IAC
claim on the merits, and therefore our review is governed by
AEDPA’s deferential review standard. See Johnson, 133 S.
Ct. at 1094. Because we must also afford counsel’s
performance a presumption of reasonableness, Strickland,
466 U.S. at 690, claims of IAC under AEDPA are “doubly
deferential.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003).
When applying Strickland in the AEDPA context, the
question is “whether there is a reasonable argument that
counsel satisfied Strickland’s deferential standard, such that
the state court’s rejection of the IAC claim was not an
unreasonable application of Strickland.” Murray v. Schriro,
746 F.3d 418, 465–66 (9th Cir. 2014) (internal quotation
marks and citation omitted).
Browning contends that his trial counsel, Randall Pike,
provided ineffective assistance because he (i) did not
interview Officer Branon and learn about Hugo’s description
of his assailant’s hairstyle, (ii) did not investigate the source
of the bloody shoeprints; and (iii) did not interview the
Wolfes. The Nevada Supreme Court agreed on (i), but not on
(ii) or (iii). As to (i), the Nevada Supreme Court held that the
deficiency was not prejudicial because the hairstyle evidence
was “extensively explored at trial.”11 Browning, 91 P.3d at
46.
11
I agree with the majority that we must review Pike’s performance
as a whole, and that the district court erred in granting COAs only on
specific aspects of Pike’s alleged deficient performance. See 28 U.S.C.
§ 2253(c)(2); see also Wong v. Belmontes, 558 U.S. 15, 17 (2009).
88 BROWNING V. BAKER
i. The Hairstyle Evidence
The Nevada Supreme Court noted that, while Pike’s
performance in not discovering Hugo’s true description of his
assailant’s hair was deficient, the evidentiary conflict was
squarely before the jury. See id. It concluded that, in light of
the conflicting testimony, combined with the “strong
evidence of Browning’s guilt,” there was “no reasonable
probability of a different result if counsel had discovered and
presented the evidence that ‘j[h]eri-curl’ was the officer’s
term, not the victim’s.” Id.Under AEDPA, our task is to decide whether the Nevada
Supreme Court’s conclusion that Pike’s deficient
performance did not prejudice Browning’s defense was
objectively unreasonable. The majority concludes that it is,
noting that “Hugo’s description of his assailant’s hair is
powerful evidence of Browning’s innocence.” But, as
described in the context of Browning’s Brady claim (see Part
IV.a, supra), the jury did hear Hugo’s description of his
killer’s hair, and so the conflict between his account and the
accounts of Josy and Coe was squarely presented. The only
question is whether there exists a reasonable probability that
the jury would have acquitted Browning had it known that
“Jheri curl” was Branon’s term and not Hugo’s. For the
reasons already discussed, the Nevada Supreme Court’s
determination was not objectively unreasonable because the
hairstyle evidence could reasonably be viewed as not
exculpatory.
ii. The Bloody Shoeprint Evidence
The Nevada Supreme Court held that it was not deficient
performance for Pike to forgo investigating the actual source
BROWNING V. BAKER 89
of the bloody shoeprints. Id. at 46. In the post-conviction
proceeding, Pike explained that his decision was part of a
strategy to “overcast[] a shadow of a doubt,” by pointing to
someone else—a black Cuban associate of the Wolfes—as
the assailant. If he had investigated the true source of the
shoeprints, he may have discovered that someone other than
the killer—e.g., a first responder—was the true source, which
would have undercut this theory. The Nevada Supreme Court
reasoned that “[a]s long as the source of the prints was
unknown, [Pike] could argue to the jury that the actual
murderer had left them.” Browning, 91 P.3d at 46.
The Nevada Supreme Court was not objectively
unreasonable in concluding that Pike executed a reasonable
trial strategy based on his investigation of the evidence. An
attorney’s decision must be “evaluate[d] . . . from counsel’s
perspective at the time” of the decision, thereby
“eliminat[ing] the distorting effects of hindsight.” Strickland,
466 U.S. at 689. At the time of trial, Pike had gathered
enough information to know that the shoeprints did not match
his client. It was an open question whether first responders,
Josy, Coe, or someone else was the source. Interviewing first
responders about their shoes could have resulted in the
discovery that a first responder was the source. This is
therefore not, as the majority insists, an “extreme instance of
strategy determining investigation.” To the contrary, it is an
example of trial counsel making a “strategic choice[]” after
“less than complete investigation” that is rooted in a sound
theory of the defense. See Strickland, 466 U.S. at 690–91.
The majority relies on Weeden v. Johnson, 854 F.3d 1063(9th Cir. 2017), but that case is not on point. There, a split
panel of this court considered counsel’s failure to obtain a
psychological evaluation of the defendant. Id. at 1067–68.
90 BROWNING V. BAKER
The defendant had been convicted of attempted robbery and
first degree felony-murder after a botched robbery attempt
resulted in the victim’s death. Id. at 1067. Because the
defendant was not present at the crime scene, the prosecution
pressed the theory that she planned and facilitated the crime.
Id. at 1066, 1070. Thus, the defendant’s “mental condition
was an essential factor in deciding whether she actually had
the required mental states for the crime.” Id. at 1070. Yet
defense counsel did not pursue psychological evidence that
could have shown that the defendant lacked the requisite
mental capacity to plan the robbery. Id. at 1068–69. He
argued that it was a reasonable tactic to remain ignorant
because a psychological profile could have revealed that his
client was easily manipulated. Id. That may have given the
prosecution an opening to argue that even if the defendant
“did not understand the magnitude of the robbery, she
nonetheless went along with it.” Id. (internal quotation marks
omitted).
The court held that defense counsel had unreasonably
“put[] the cart before the horse” by allowing trial strategy to
dictate the scope of the investigation. Id. at 1070. While I
stand by my dissent in Weeden, even on the Weeden
majority’s own terms that case is distinguishable in relevant
part. There, counsel conducted no investigation on an issue
that was central to the prosecution’s burden of proof. See id.Here, by contrast, Pike collected enough information to know
that the shoeprints did not match his client, and this discovery
supported his trial strategy of arguing that someone else
committed the murder.
Moreover, unlike the defendant’s psychological
competency in Weeden, the importance of discovering the
source of the shoeprints was not evident until Branon
BROWNING V. BAKER 91
revealed—some 15 years later—that the prints predated his
arrival at the scene. At the time of trial, Pike knew that the
prints were exculpatory because they did not match his client,
and there was no reason to believe that someone other than
the true killer was the source. Indeed, Pike may have
reasonably assumed that first responders would have
exercised care to preserve the crime scene. The fact that first
responders did not make the prints only became relevant after
Horn’s testimony suggested that they may have been the
source. Whether Pike performed adequately is a measure of
his own actions in preparing for trial, not a function of
misleading testimony introduced by the prosecution. Had
Horn not testified about first responders’ shoe preferences,
Browning would have no claim of deficient performance
based on the shoeprint evidence. To the contrary, Pike made
clear to the jury the shoeprints’ exculpatory value.
The majority’s reasoning also creates a tension between
the prosecution’s Brady obligations and defense counsel’s
performance responsibilities. A Brady violation occurs where
the prosecution fails to turn over evidence requested by the
defense, or where it fails to “volunteer exculpatory evidence
never requested.” Kyles, 514 U.S. at 433 (emphasis added);
see Strickler, 527 U.S. at 280. The underlying premise is that
some evidence is discoverable by diligent inquiry, while other
evidence is not. The shoeprint evidence falls into the latter
category because, until Horn’s testimony, Pike reasonably did
not think to ask whether the prints were left by someone other
than the killer. Boiled down, Browning’s grievance reduces
to a Brady, not an IAC, claim.
Finally, in Weeden, even if counsel had obtained a
psychological report that was unfavorable to his theory of the
case, he was not required to disclose it to the prosecution.
92 BROWNING V. BAKER
854 F.3d at 1070. Nor would an adverse psychological
finding have precluded him from arguing, as he did, that the
defendant, a 14-year-old girl, could be “easily manipulated by
older people” because of her age. See id. at 1067 (internal
quotation marks omitted). Thus, he arguably had nothing to
lose but potentially much to gain by investigating his client’s
psychological profile. Here, by contrast, had Pike discovered
that first responders were actually responsible for the
shoeprints, this would have undercut his argument that a
black Cuban was the true killer.12
The majority’s reliance on Harrington v. Richter, a case
in which the Supreme Court rejected an IAC claim, is equally
puzzling. There, the Court—reversing an en banc decision of
this court—upheld a state court’s ruling that defense
counsel’s failure to test blood evidence was a reasonable trial
strategy. Richter, 562 U.S. at 107–08. Had defense counsel
tested the blood, he would have discovered—as post-
conviction results revealed—that the evidence supported the
defendant’s version of events. See id. But without the
benefit of hindsight, defense counsel faced two possible
outcomes from a blood test: a result that corroborated his
client’s account and one that undermined it. See id. at 108.
Faced with the “serious risk[]” of an adverse test result, the
12
To be sure, it appears that Pike never connected the shoeprints
directly to the enigmatic black Cuban. This renders his post-trial
explanation for not investigating the prints somewhat suspect. Even so,
our task is not to review Pike’s performance as if on a direct appeal or to
second-guess his intent at the time of trial. We may only reject the state
court’s determination if Pike’s decision cannot be construed by a fair-
minded jurist as a “sound trial strategy.” See Strickland, 466 U.S. at 689;
see also Richter, 562 U.S. at 110 (“Strickland . . . calls for an inquiry into
the objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind”).
BROWNING V. BAKER 93
Court held that the attorney was not required to “pursue an
investigation that . . . might be harmful to the defense.” Id.Pike faced a similar dilemma here. Investigating the
bloody shoeprints could have bolstered his theory—and
Browning’s account—that a black Cuban murdered Hugo, or
it could have undermined it.13 Only in the “harsh light of
hindsight” does Pike’s strategy appear unreasonable. As in
Richter, “[i]t was at least arguable that a reasonable attorney
could decide to forgo inquiry into the [shoeprint] evidence in
the circumstances here.” See Richter, 562 U.S. at 106.
The majority distinguishes Richter on the ground that
defense counsel there did not completely trust his client’s
13
The majority speculates that Pike had nothing to lose by
interviewing Branon because no matter what Branon said, that “still would
have inflicted no harm on [Pike’s] theory” that the black Cuban committed
the murder. Not necessarily. In response to a question about whether first
responders entered the store before Branon’s arrival, Pike could not have
ensured that Branon would answer with a simple “yes” and nothing more,
as the majority assumes. Branon may very well have elaborated, saying
something like: “Yes, and they’re the reason why there were bloody
shoeprints all over the place.” This observation also disposes of
Browning’s argument that Pike should have asked Branon about the prints
after Horn’s testimony indicated that they may have been left by first
responders. Browning suggests that, at that point, at worst Branon could
have confirmed Horn’s testimony. But Horn did not testify that the first
responders had made the prints. He only observed that first responders
wear tennis shoes to crime scenes. Thus, even after Horn’s testimony,
Pike could plausibly argue his black-Cuban-did-it theory. Had Pike asked
Branon about what he saw when he arrived at the scene, and had Branon
told him that the first responders were the source of the prints, Pike would
have had significantly less latitude to press this defense. All this is to say
that a fair-minded jurist could conclude that Pike was reasonable in
seeking to avoid obtaining the shoeprint information by not interviewing
Branon.
94 BROWNING V. BAKER
version of events. Id. at 108. According to the majority, this
distinction makes all the difference because, here, “Pike had
no reason to disbelieve Browning’s assertions that he had
been framed by the Wolfes.”14 But Richter does not teeter on
so thin a reed. That counsel there “had reason to question the
truth of his client’s account” was only one factor considered
by the Court. See id. at 108 (noting that “[e]ven apart from
th[e] danger” that the defendant was lying, testing the blood
could have “shift[ed] attention to esoteric matters of forensic
science, distract the jury from whether Johnson was telling
the truth, or transform the case into a battle of the experts”
(emphasis added)). Ultimately, the Court rejected the IAC
claim because defense counsel’s tactic was consistent with a
strategy of “try[ing] to cast pervasive suspicion of doubt
[rather] than to strive to prove a certainty that exonerates.”
Id. at 109. Same here. Pike, in his words, executed a strategy
of “overcasting a shadow of doubt, as opposed to proving.”
The Nevada Supreme Court’s determination that Pike’s
performance was not deficient for failing to discover the
shoeprint evidence was therefore not objectively
unreasonable. See Browning, 91 P.3d at 46.
14
The majority also makes the bald allegation that Pike “thought
Browning was guilty.” The record does not appear to support this
statement, yet it is key to the majority’s ominous warning that condoning
Pike’s strategy would result in blanket cover for attorneys who shirk their
investigatory obligations. The majority reasons that defense counsel need
merely cite a belief that their clients are untrustworthy to justify
conducting little or no investigation. This is a red herring: The issue is not
whether Pike believed Browning was guilty; it is whether Pike’s trial
strategy made sense. Had Pike’s decision to forgo further investigation of
the shoeprints’ provenance been untethered to any potential benefit to his
client, that decision may very well have constituted inadequate
performance. But, as explained, that is not the case.
BROWNING V. BAKER 95
iii. The Wolfes
The Nevada Supreme Court concluded that Pike acted
reasonably in not interviewing the Wolfes. Browning,
91 P.3d at 46. The court noted Pike’s policy of delegating the
responsibility of interviewing witnesses to his investigator
rather than conducting interviews himself, which could have
made Pike a percipient witness. Id. The court concluded that
this was a “reasonable tactic.” Id. But Pike’s investigator
never interviewed the Wolfes. While he sought permission
to do so, Pike denied his requests. The Nevada Supreme
Court’s conclusion that Browning “has failed to show that
counsel was ineffective” because it was “reasonable” to
delegate interview responsibility to an investigator was
therefore an unreasonable determination of the facts. See id.;
28 U.S.C. § 2254(d)(2).
Even so, the Nevada Supreme Court’s ultimate conclusion
was not unreasonable because Browning fails to show
prejudice. See Richter, 562 U.S. at 88. Assuming it was
deficient performance to not interview the Wolfes, it is
unclear how any additional information that Pike may have
uncovered would have likely changed the outcome of the
trial. As the majority correctly notes, the jury was presented
with a “mountain of evidence providing potential reasons to
doubt the Wolfes’ credibility.”15 The jury knew that the
Wolfes had a history of lying, stealing, drug use, and prior
convictions. Piling on one more bad act would have simply
added to the already formidable “mountain.” See Lewis v.
Cardwell, 609 F.2d 926, 928 (9th Cir. 1979) (counsel’s
15
The record indicates that Pike was told, prior to trial, that the
Wolfes had, on another occasion, falsely accused someone of committing
crimes against Vanessa Wolfe.
96 BROWNING V. BAKER
failure to discover impeachment evidence that was merely
cumulative did not prejudice the defendant).
Because Browning fails to show how interviewing the
Wolfes would have resulted in a “reasonable probability” of
a different outcome, the Nevada Supreme Court was not
objectively unreasonable in rejecting Browning’s IAC claim
on this ground.
V. Conclusion
The role of the federal judiciary in reviewing habeas
petitions from state courts is limited, and for good reason.
AEDPA, when properly applied, prevents federal courts from
unnecessarily intruding on states’ broad authority to
administer their own criminal justice systems. That is why
we are tasked with considering not whether we would decide
a case differently, but whether the state court’s determination
is beyond fair-minded debate. Today’s majority repeatedly
loses sight of this standard. In light of the substantial
evidence inculpating Paul Browning in Hugo Elsen’s murder,
the limited exculpatory value of the alleged Brady material,
and the fact that Pike’s representation reasonably did not
prejudice Browning’s defense, I would affirm the district
court’s denial of Browning’s petition for habeas relief. I
respectfully dissent.