Andrew Brown v. Ron Broomfield

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW LAMONT BROWN, No. 21-99001

Petitioner-Appellant, D.C. No. 2:04-

cv-03931-JVS

v.

RONALD BROOMFIELD, Acting OPINION

Warden, San Quentin State Prison,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted September 10, 2025

San Francisco, California

Filed August 14, 2026

Before: Richard R. Clifton, Jacqueline H. Nguyen, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez

2 BROWN V. BROOMFIELD

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Andrew

Lamont Brown’s petition for a writ of habeas corpus under

28 U.S.C. § 2254 challenging his California conviction and

death sentence for first-degree murder.

The district court granted a certificate of appealability

(COA) as to Brown’s claims that he received ineffective

assistance of counsel during the penalty phase of his trial,

that he was incompetent to stand trial, and that he has an

intellectual disability that renders him ineligible for

execution under the Eighth Amendment. Brown sought to

expand the certificate of appealability to include three

additional claims. The panel applied the deferential standard

of review set forth in the Antiterrorism and Effective Death

Penalty Act (AEDPA).

Brown’s certified claim of ineffective assistance at the

penalty phase contained numerous subclaims raising two

general areas of concern: the failure to investigate and

present important mitigation and evidence, and the failure to

rebut uncharged acts introduced against Brown and to object

to evidence and arguments raised by state prosecutors.

• The panel held that the California Supreme Court

could have reasonably determined that Brown failed

to make a prima facie claim of ineffective assistance

because there was no evidence that trial counsel

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. BROOMFIELD 3

failed to investigate or make reasonable strategic

choices about Brown’s history of drug and alcohol

abuse; mental health conditions; family history of

abuse and neglect; gang ties; and poverty and

neighborhood history. Much of the new evidence

presented by Brown in his postconviction petitions

was cumulative of the evidence trial counsel already

presented at the penalty phase. Where trial counsel

did not present or focus on certain evidence, the

record reflects that these were strategic decisions by

trial counsel. Therefore, the California Supreme

Court could have reasonably concluded that trial

counsel did not render deficient performance. In

light of the doubly deferential standard of review

under AEDPA, the panel could not conclude that the

California Supreme Court’s rejection of Brown’s

ineffective assistance claim was objectively

unreasonable.

• The panel held that in view of the trial record in

which counsel presented several witnesses to refute

the State’s evidence that Brown perpetrated the

uncharged offenses, the California Supreme Court

reasonably rejected Brown’s claims that trial counsel

was ineffective for failing to call two individuals as

rebuttal witnesses; and that counsel was not deficient

in failing to present at the penalty phase certain of

Brown’s positive qualities, in failing to request a jury

instruction defining and clarifying life without

parole, or in failing to object to or rebut the

prosecutor’s argument at closing that Brown was a

“sociopath” who lacked remorse and would kill

again.

4 BROWN V. BROOMFIELD

• Because counsel’s performance was not deficient,

the panel did not address whether Brown was

prejudiced by any deficiency.

The panel held that based on the totality of the evidence,

the California Supreme Court did not make an unreasonable

factual determination that Brown failed to rebut the

presumption that he was competent to stand trial.

The panel held that the California Supreme Court

reasonably determined that Brown failed to make a prima

facie showing of intellectual disability under California’s

statutory test.

The panel declined to expand the COA to include three

uncertified claims in which Brown alleged (1) counsel’s

ineffective assistance at the guilt phase, (2) the

discriminatory exclusion of a prospective black juror, and

(3) the denial of a jury drawn from a fair cross-section of the

community.

COUNSEL

Saivandana Peterson (argued), Nicole Jeong, and Susel B.

Carrillo-Orellana, Deputy Federal Public Defenders;

Cuauhtémoc Ortega, Federal Public Defender; Office of the

Federal Public Defender, Los Angeles, California; for

Petitioner-Appellant.

Vincent P. LaPietra (argued) and Lise Jacobson, Deputy

Attorneys General; Holly D. Wilkens, Supervising Deputy

Attorney General; James W. Bilderback II, Senior Assistant

Attorney General; Rob Bonta, California Attorney General;

Office of the California Attorney General, San Diego,

California; for Respondent-Appellee.

BROWN V. BROOMFIELD 5

OPINION

SANCHEZ, Circuit Judge:

On March 5, 1992, Andrew Lamont Brown was

sentenced to death after a California jury convicted him of

first-degree murder and robbery and found true the special

circumstance that he had killed Christina Ramirez while

engaging in robbery and with the personal use of a firearm.

After Brown was denied relief on direct appeal and in state

post-conviction proceedings, he filed the instant petition for

writ of habeas corpus under 28 U.S.C. § 2254. The district

court denied his petition but granted a certificate of

appealability as to Brown’s claims that he had received

ineffective assistance of counsel during the penalty phase of

his trial, that he was incompetent to stand trial, and that he

has an intellectual disability that renders him ineligible for

execution under the Eighth Amendment. Brown challenges

the district court’s denial of habeas relief and seeks

to expand the certificate of appealability to include

three additional claims. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253. We affirm the district court’s

denial of Brown’s habeas petition and decline to expand the

certificate of appealability.

I. BACKGROUND

The facts, as set forth by the California Supreme Court

on direct review in People v. Brown, 73 P.3d 1137, 1147–53

(Cal. 2003), are summarized as follows.

A. Guilt Phase

In November 1988, Andrew Lamont Brown was

determined to steal deep-dish tire rims from a truck. At the

time, Brown was living “off and on” in a home with Mark

6 BROWN V. BROOMFIELD

Bender, Broderick Fields, Andrew White, Percell

McClendon, and others. Brown asked Levi Gardner if he

wanted to buy some deep-dish tire rims. Gardner replied that

he would have to see them before committing to the

purchase, and Brown said he could obtain some. Brown told

White that he “was going to do a jack move”—rob someone

at gunpoint—“to get some rims,” and invited White to join

him. White declined.

On November 11, 1988, Brown, Fields, Bender, and

McClendon drove around in Bender’s Oldsmobile Cutlass,

looking for deep-dish rims to steal. That night, seventeen-

year-old Christina Ramirez was driving her husband’s 1985

red Nissan truck which had a Kenwood brand stereo and

amplifier and distinctive deep-dish tire rims, each bearing

small decorative holes and painted red to match the truck.

Brown spotted Ramirez’s truck and exclaimed, “[t]hose are

the ones we need.” They made a U-turn and followed the

red truck for two traffic lights. Ramirez was driving alone

in the truck. When she stopped at a red light, Bender pulled

up behind her. According to McClendon’s testimony,

Brown jumped out carrying a .38-caliber pistol, ran to the

driver’s side of the red truck, and fired one shot through the

window, shattering it. Brown then pulled Ramirez out and

got into the truck from the driver’s side, while Fields got in

from the passenger side. The two cars left the scene.

Several individuals witnessed the incident. Juan

Williams, whose Mercedes Benz stopped directly behind

Bender’s Cutlass, described seeing a young Hispanic male

between five feet three inches and five feet six inches tall

running up to the driver’s side of the red truck, throwing the

victim from the truck, and driving off in it. Williams

testified that he did not see a second man enter the truck on

the passenger side, although a police officer later testified at

BROWN V. BROOMFIELD 7

trial that, on the night of the murder, Williams reported

seeing two men running up to the truck.

Rena Stanfill’s car was stopped at the red light behind

Williams’ Mercedes. Stanfill saw two men exit from a mid-

sized “American car” in front of the Mercedes and run to the

red pickup truck. According to Stanfill, an African

American man about five feet ten inches tall ran to the

driver’s side of the truck and pulled a woman out, dropping

her so that she struck the pavement face-first. 1 A second

man, who was either Hispanic or African American, jumped

into the passenger side of the truck. Stanfill saw the two men

leave the scene in the truck. Because she was driving with

her windows rolled up and radio on, Stanfill did not hear the

gunshot.

Ramirez suffered a single gunshot wound to the neck.

The bullet entered the left side of her neck, traveled

downward, and lodged in her spine. Ramirez died from her

injuries on December 21, 1988. The bullet retrieved from

her body was consistent with having been fired from a .38-

caliber handgun.

Around 11:45 pm that night, Mark Bender, Fields, and

McClendon arrived at Perry Bender’s home. Mark was

visibly upset and blurted out: “I know he shot her. I know

she is hurt bad.” Soon after, Brown arrived in Ramirez’s red

truck, playing loud music on the stereo. Brown had a .38-

caliber handgun. When Perry asked how he had obtained the

truck, Brown replied that he gotten it in Riverside and that

he “[s]moked the bitch.” Sometime between 11:00 p.m. and

1:00 a.m., Gardner’s brother saw Brown sitting in a red truck

1

Brown and Broderick Fields are both African American and stand

approximately six feet tall.

8 BROWN V. BROOMFIELD

with a camper shell and deep-dish rims in front of Harb’s

Liquor Store/Market, the stereo playing loudly. Brown

asked him to tell Levi Gardner that he had some “deeps” for

Gardner.

The next day, Brown offered to sell a single deep-dish

rim to Gardner for $50. The rim was painted red and had

circular holes in it. Gardner asked to see all four rims before

committing to the purchase, so they drove to a remote

location in the hills and came upon a red pickup truck down

a dirt road. The truck had deep-dish rims and was missing

one from the front. Gardner had a “bad feeling” about the

deal and declined to buy the rims. Brown offered to lower

the price if Gardner helped him remove the other three rims,

but Gardner declined.

Kevin Davis testified that he had seen the red truck in the

Mead Valley hills in November 1988, had seen Brown in a

liquor store parking lot with a rim matching those on

Ramirez’s truck, and had seen Brown with a .38-caliber

handgun. Brown offered to sell Davis a Kenwood brand car

stereo, amplifier, and speakers, but he declined.

The day after the robbery, Brown, White, and a crowd of

people gathered in front of a liquor store in the early evening.

According to White, Brown described to the group how he

had acquired the red pickup truck, stating he “smoked the

bitch” who was driving it. When the group expressed

skepticism, Brown swore it was true and invoked his gang,

Fruit Town, as proof. Brown asked White to help him

remove the rims. Although White had experience in such

matters as a car thief, he declined to help because he heard

that Brown had shot a person to obtain the truck.

Acting on a tip, the Riverside County Sheriff’s

Department located and towed Ramirez’s truck from the

BROWN V. BROOMFIELD 9

hills. It was missing one wheel and all of its stereo

components. Police found heavy scratch marks around the

lug nuts, which suggested that someone had tried to remove

the remaining wheels with the wrong tool. Blood was

discovered in the door jamb on the driver’s side. Brown

confronted Rick Kinney, an acquaintance, about the truck’s

disappearance, saying: “Where’s my truck at? I took that

truck that you’re riding around today, that red truck in the

hills, that was mine.”

Brown was charged with robbery and first degree murder

with special circumstances. At trial, defense counsel

presented a theory that Brown was not the shooter, relying

on the recollections of two eyewitnesses, Williams and

Stanfill, who initially recalled that the shooter was a

Hispanic man, not a Black man. Noting that Fields was

related to the Bender brothers, defense counsel asserted that

the other participants in the crime had closer relationships to

each other and suggested they were protecting themselves by

pointing the finger at Brown as the shooter.

The jury convicted Brown in 1992, finding true a special

circumstance allegation that Brown committed the murder

while engaged in the commission of a robbery, and two

enhancement allegations that Brown personally used a

firearm in the commission of his crimes.

B. Penalty Phase

1. Evidence in Aggravation

The State presented testimony from several witnesses

describing five other uncharged violent offenses allegedly

committed by Brown in the same year as the underlying

murder. Three of the alleged crimes involved a carjacking

or attempted carjacking by Brown and others using a .38-

10 BROWN V. BROOMFIELD

caliber handgun, and one of those robberies resulted in the

shooting death of a victim. The uncharged offenses are

discussed in more detail infra pp. 38–42.

The State also presented testimony from the victim’s

family. Susie Barraza, Christina Ramirez’s mother, testified

that Christina was seventeen years old when she was shot

and killed. Christina and her husband Joe had gotten married

less than a month before the crime, and their wedding

reception was scheduled for the day after the shooting. After

Christina’s death, her mother became afraid to venture out at

night and began therapy. Maria Ramirez, Christina’s

mother-in-law, testified that nothing was the same after

Christina’s death. Her son Joe became depressed, stopped

working, and obtained several guns. He stayed in his

bedroom for nearly a year, coming out only to eat and go to

the bathroom. After threatening suicide and displaying

anger, Joe was committed for observation and counseling.

Maria and her husband never strayed far from home in order

to keep watch over their son.

2. Evidence in Mitigation

Brown did not testify at the penalty phase but called

several witnesses to raise doubt about his involvement in the

uncharged offenses and to present evidence about his

childhood abuse and neglect, mental health issues and

substance abuse, and chaotic upbringing. Mitigation

witnesses included family and friends, a former Department

of Social Services (“DSS”) employee, a former principal,

and three expert witnesses.

Several witnesses testified to the severe physical and

psychological abuse Brown witnessed and experienced as a

child. Brown’s mother, Catherine Williams, testified that

she gave birth to him when she was sixteen years old. They

BROWN V. BROOMFIELD 11

lived with his father Oscar Brown, who often struck

Williams. Catherine left Oscar after he fired a gun at her

while she was holding Brown. Wesley Armstrong, Brown’s

uncle, testified that when Brown was five or six years old,

Armstrong went to Catherine’s apartment and found Brown

alone and apparently crying in a dark closet with the door

closed. Later, Brown appeared to be in pain and had bruises

and open wounds on his back, as though he had been

whipped with an electrical cord or clothes hanger. Brown

was later removed from his mother’s custody and placed

with a foster family and then with his grandmother, Lula

Armstrong McMaryion, under whose care he remained until

he turned 17 or 18 years old.

When Brown was in kindergarten, a school nurse filed a

report indicating that he had old scars on his back and the

front of his chest and thighs, some swollen and discolored

areas, old scars on and under the surface of his penis, and

scabs. Brown explained that his mother’s friend “RC” had

whipped him with an extension cord. The report noted that

his mother Catherine told Brown the whippings were good

for him.

Geneva Cofield, Brown’s foster parent, and her daughter

Kay testified that when five-year-old Brown came to live

with them, he looked unhealthy, malnourished, and had

physical injuries that covered most of his body. Some

injuries were old and some were new, and included cigarette

burns, wounds on his penis, back and buttocks, and injuries

that would take up to six weeks to heal. The injuries were

reportedly inflicted by Catherine’s then-boyfriend, “RC” or

Ricardo Laurie.

Defense expert psychiatrist Dr. Chin Choo testified that

when she was a psychiatry resident at the Martin Luther

12 BROWN V. BROOMFIELD

King Medical Center, she evaluated a seventeen-year-old

Brown who had been admitted to the emergency room. On

January 16, 1987, Brown was delusional, disoriented, and

psychotic, and stated that he had smoked Sherman cigarettes,

i.e., cigarettes laced with phencyclidine, or “PCP.” Dr. Choo

prescribed Haldol, a psychotropic drug used to correct

symptoms of psychosis but could not confirm that it was

administered. Hospital notes recorded that Brown said he

was paranoid, had used cocaine, and needed sleep. The next

day, Brown was alert and cooperative and admitted to drug

use. His behavior was consistent with someone coming

down from a psychotic state. Dr. Choo testified that

Brown’s psychosis could have been the result of his PCP

use.

Defense expert Dr. Nancy Kaser-Boyd, a clinical

psychologist, offered her opinion about the severity of

Brown’s childhood abuse, the effects from it, and the

treatments Brown should have received. To form her

opinion, she reviewed Brown’s DSS records, school records,

IQ testing done by neuropsychologist Dr. Vincent Nunno,

and interviews with family members. She also conducted

personal interviews of Brown and his family members. Dr.

Kaser-Boyd testified that Brown was one of the most

physically abused children she had ever seen. In addition to

the beatings and burnings, Brown was subjected to

psychological abuse, including being locked in a dark closet

and having his clothes taken away so he could not escape.

Dr. Kaser-Boyd opined that Brown showed symptoms of

posttraumatic stress disorder (“PTSD”) and explained that

children who have suffered a similar level of abuse and

trauma generally cannot develop normally either cognitively

or emotionally. Such children are at higher risk for drug and

BROWN V. BROOMFIELD 13

alcohol abuse and have a much greater degree of anxiety and

depression.

Brown’s background was consistent with his low school

performance and IQ. Tests revealed that his IQ of 77 was

within the borderline intelligence level between low average

and intellectually disabled. Brown attended six different

schools between seventh and eleventh grade because his

grandmother allowed him to switch school to be with his

friends. Dr. Kaser-Boyd opined that Brown should have

been placed in special education in light of his cognitive

deficits, hyperactivity, and the trauma he had suffered, but

his grandmother was not sophisticated enough to attend to

Brown’s special needs.

Dr. Kaser-Boyd also opined that with Brown’s history of

abuse and trauma, he needed long-term therapy. Though

Catherine was told that Brown was hyperactive, she never

sought treatment for him. Similarly, school and DSS

officials told his grandmother Lula that Brown needed

professional counseling, and needed to be placed in special

education and to receive treatment for his hyperactivity.

Lula did not follow up on these recommendations. Dr.

Kaser-Boyd testified that Brown did not have an available or

appropriate adult role model or mentor.

Defense expert Dr. James H. Johnson, Jr., geography

professor and director of the Center of Urban Poverty for Los

Angeles County at the University of California, Los

Angeles, testified about the educational, financial, and

professional disadvantages for young black males in

Compton where Brown grew up. Several witnesses also

testified about the dangerous neighborhood where Brown

was raised on Piru Street in Compton. The neighborhood

was a center of drug-dealing and gang activity, with daily

14 BROWN V. BROOMFIELD

shootings and other criminal activity. Brown and his

grandmother often slept on the floor because they were

afraid that gunshots would come through the windows.

3. Rebuttal Evidence and Closing Arguments

In rebuttal, the State presented Sandra Thomas, who met

Brown in 1987 and viewed him like a little brother. Brown

told her about the robberies he committed, like stealing a

Suzuki and a Nissan, stripping them down, and selling them.

Once she and Brown saw a Suzuki drive by and he said, “I’m

going to get that bitch . . . . I’m jacking that.” Thomas

described Brown as appearing happy when he talked about

robbing people.

In closing argument, the prosecutor reviewed the nature

and circumstances of the crime and reminded the jury that it

had rejected the defense’s argument at the guilt phase that

Brown was intoxicated on the night of Ramirez’s murder.

The prosecutor also explained that Brown would get excited

about robbing people, did not express remorse and instead

bragged about the murder, and made conscious decisions to

commit the murder and the uncharged crimes. The

prosecutor argued that Brown would be a danger to society

if he were sentenced to life without parole (“LWOP”), that

Brown “is not suffering from mental disease other than being

a sociopath,” and described Brown as a “sociopath on

substance abuse” who did not deserve sympathy or mercy.

The defense argued in closing that the jury should not

only be angry with Brown but also with the people who

failed him. Defense counsel explained that the murder and

the uncharged crimes were committed by the same group,

and because of Brown’s low IQ and early substance abuse,

it was unlikely that he was the ringleader. Counsel also

stated that it was not Brown’s choice to be abused, to grow

BROWN V. BROOMFIELD 15

up in a hopeless and violent neighborhood, and to receive

none of the adult guidance, education, or mental health

treatment he needed. Counsel explained that Brown’s

breakdown and hospitalization at the age of seventeen

marked the beginning of his involvement in the one-year

spree of uncharged crimes that ended in Ramirez’s death.

The case went to the jury the afternoon of March 4, 1992.

A verdict of death was returned the following day.

II. PROCEDURAL HISTORY

The California Supreme Court affirmed Brown’s

conviction and death sentence on direct appeal. Brown, 73

P.3d 1137. In 2004, the United States Supreme Court denied

certiorari. Brown v. California, 541 U.S. 1045 (2004).

Brown filed his first state postconviction petition in 2004.

Brown initiated this federal habeas proceeding on June

2, 2004, and filed his petition on May 16, 2005. The district

court stayed federal habeas proceedings so that Brown could

return to state court to exhaust his claims. Brown then filed

a second state postconviction petition. On May 23, 2008, the

California Supreme Court summarily denied both state

postconviction petitions.

Brown then filed an amended federal habeas petition

with the district court. On December 18, 2017, the district

court denied Brown’s motion for an evidentiary hearing, and

on February 4, 2021, the district court denied Brown’s

petition on the merits. Brown timely appealed.

III. STANDARD OF REVIEW

“We review a district court’s denial of habeas relief de

novo.” Grimes v. Phillips, 105 F.4th 1159, 1165 (9th Cir.

2024). Because Brown filed his federal petition after April

16 BROWN V. BROOMFIELD

24, 1996, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs our review. Id.; see 28 U.S.C.

§ 2254(d). Under AEDPA, we defer to a state court’s

decision on any claim that was adjudicated on the merits

unless Brown demonstrates that the state court’s decision

(1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or

(2) “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).

“We review the last reasoned state court decision.” Scott

v. Broomfield, 173 F.4th 1131, 1145 (9th Cir. 2026). Where

there has been a summary denial by the California Supreme

Court, we apply AEDPA deference to that determination.

See Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022)

(“[T]he California Supreme Court’s summary denial of [a

petitioner’s] claims—both certified and uncertified—is a

decision on the merits and thus entitled to AEDPA

deference.”); see also Cullen v. Pinholster, 563 U.S. 170,

187 (2011) (holding that AEDPA deference “applies even

where there has been a summary denial”). Under such

circumstance, “a habeas court must determine what

arguments or theories . . . could have supported [] the state

court’s decision . . . .” Harrington v. Richter, 562 U.S. 86,

102 (2011). “A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree’ on the correctness of the state court’s

decision.” Id. at 101 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

“Under California law, the California Supreme Court’s

summary denial of a habeas petition on the merits reflects

that court’s determination that ‘the claims made in th[e]

BROWN V. BROOMFIELD 17

petition do not state a prima facie case entitling the petitioner

to relief.’” Pinholster, 563 U.S. at 188 n.12 (quoting In re

Clark, 855 P.2d 729, 741 –42 (Cal. 1993)). The California

Supreme Court “generally assumes the allegations in the

petition to be true, but does not accept wholly conclusory

allegations, and will also review the record of the trial to

assess the merits of the petitioner’s claims.” Id. (cleaned

up); see also In re Figueroa, 412 P.3d 356, 364 (Cal. 2018)

(“This court evaluates a petition by asking whether,

assuming the petition’s factual allegations are true, the

petitioner would be entitled to relief. If no prima facie case

for relief is stated, the court will summarily deny the petition.

If, however, the court finds the factual allegations, taken as

true, establish a prima facie case for relief, the court will

issue an order to show cause.” (cleaned up)). For claims that

were summarily denied, our review is not limited to whether

the petitioner “had made out a prima facie case in his state

habeas petition”; instead, we must evaluate the petitioner’s

claims “in their entirety to determine whether the California

Supreme Court could reasonably reject those claims on the

merits.” Montiel v. Chappell, 43 F.4th 942, 957 n.13 (9th

Cir. 2022).

IV. CERTIFIED CLAIMS 2

A. Ineffective Assistance of Counsel at Penalty Phase—

Claim 36

Brown asserts a certified claim of ineffective assistance

of counsel at the penalty phase with numerous subclaims.

2

The State argues that Brown is procedurally barred from receiving

relief on his certified and uncertified claims. Because we do not find

grounds to afford relief on the merits of Brown’s claims, we decline to

address whether procedural default would otherwise apply. See Lewis v.

Andes, 95 F.4th 1166, 1185 n.11 (9th Cir. 2024); see also Franklin v.

18 BROWN V. BROOMFIELD

His claim raises two general areas of concern about trial

counsel’s alleged ineffectiveness: the failure to investigate

and present important mitigation evidence, and the failure to

rebut uncharged acts introduced against Brown and to object

to evidence and arguments raised by state prosecutors.

Below, we address each of these assertions and their

associated subclaims.

A defendant has a Sixth Amendment right to the

effective assistance of counsel at the guilt and penalty phases

of a capital trial. Strickland v. Washington, 466 U.S. 668,

684–87 (1984). To establish a claim of ineffective assistance

of counsel, a petitioner must show that (1) “counsel’s

performance was deficient,” and (2) “the deficient

performance prejudiced the defense.” Id. at 687. “The

benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Id. at 686.

To be deficient, a petitioner must show that his counsel’s

representation fell below an objective standard of

“reasonableness under prevailing professional norms.” Id.

at 688. Federal courts apply a strong presumption that

counsel’s representation was “within the wide range of

reasonable professional assistance.” Id. at 689. The

Supreme Court has not “articulate[d] specific guidelines for

appropriate attorney conduct” but has instructed that the

reasonableness of counsel’s actions is assessed under the

Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are

empowered to, and in some cases should, reach the merits of habeas

petitions if they are . . . clearly not meritorious despite an asserted

procedural bar.” (citing Lambrix v. Singletary, 520 U.S. 518, 525

(1997))).

BROWN V. BROOMFIELD 19

prevailing professional norms at the time of the challenged

actions, Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation

omitted), and in view of “counsel’s perspective at the time,”

Strickland, 466 U.S. at 689. “Counsel in a death-penalty

case has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations

unnecessary.” Scott, 173 F.4th at 1145 (quoting Andrus v.

Texas, 590 U.S. 806, 814 (2020) (per curiam)). As the

Supreme Court explains, “strategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices

made after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.”

Strickland, 466 U.S. at 690–91.

To establish prejudice, a petitioner “must show that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. “A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.” Id. “The likelihood of a different result must be

substantial, not just conceivable.” Richter, 562 U.S. at 112.

Review of ineffective assistance claims under § 2254(d)

is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009). “The question ‘is not whether a federal

court believes the state court’s determination’ under the

Strickland standard ‘was incorrect but whether [it] was

unreasonable—a substantially higher threshold.’” Id.

(alteration in original) (quoting Schriro v. Landrigan, 550

U.S. 465, 473 (2007)); see also Richter, 562 U.S. at 105

(“The question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”).

20 BROWN V. BROOMFIELD

1. Counsel’s Failure to Investigate and Present

Additional Mitigating Evidence at the Penalty

Phase

We begin with Brown’s claim that his trial counsel was

deficient by failing to investigate and present important

mitigating evidence during the penalty phase of his trial.

Specifically, Brown contends that despite having

information that would have caused competent counsel to

investigate further, counsel failed to investigate and present

evidence of Brown’s drug and alcohol addictions, his mental

decompensation in the year before the murder, history of

family sexual and physical abuse, poverty and

environmental conditions, and evidence that Brown was not

affiliated with any gang.

With his state postconviction petition, Brown submitted

three new expert declarations addressing evidence of

mitigation that, according to Brown, should have been

investigated and presented by trial counsel at the penalty

phase. Dr. June Clausen reviewed documents regarding

Brown’s social, family, educational, and medical histories

and provided a social history as well as psychological

assessments of Brown in 2005 and 2008. 3 Dr. Pablo Stewart,

a clinical and forensic psychiatrist, conducted a psychiatric

assessment of Brown in 2007 based on Brown’s documented

social, medical, and psychiatric history as well as two

interviews with Brown. Dr. Dale Watson, a psychologist

specializing in forensic psychology, conducted tests and

interviews of Brown in 2002 to evaluate his

neuropsychological functioning. The new mitigation

evidence also included lay witness declarations from family

3

Dr. Clausen did not interview Brown as part of her evaluation.

BROWN V. BROOMFIELD 21

and friends that supported the experts’ summaries of

Brown’s background.

Dr. Clausen examined Brown’s family history of

intergenerational neglect and child abuse. Brown’s mother

Catherine had inconsistent access to food and was beaten by

her stepfather Laurence. Catherine was also sexually abused

by Laurence. She became pregnant with Brown at 14 or 15

years old and was ill for most of her pregnancy and lacked

any prenatal care. Catherine eventually moved in with Oscar

Brown, who was physically abusive of both Catherine and

Brown.

Dr. Clausen observed that Brown’s early life was fraught

with violence, and he experienced physical abuse as well as

a deprivation of food, nurturing, and sense of stability.

Brown “suffered physical abuse and neglect at the hands of

his primary caretakers,” and was removed from Catherine’s

care after school officials reported that he had been

physically abused. He was placed into a foster home for

approximately nine months. Although Brown saw a

psychiatrist six times while in foster care, neither Catherine

nor his grandmother Lula followed up on recommendations

to treat Brown’s hyperactivity or seek professional

counseling for him.

Dr. Clausen also discussed the gang environment,

violence, and poverty prevalent in Compton during Brown’s

childhood living on Piru Street. Brown was often chased and

beaten by other children in the neighborhood, and appeared

to be a victim of gang bullying. The community and family

in which Brown was raised were poverty-stricken. For

example, Dr. Clausen noted Brown’s medical neglect and

lack of access to prescription medication from medical

providers to treat his conditions.

22 BROWN V. BROOMFIELD

Agreeing with Dr. Kaser-Boyd, Dr. Clausen opined that

“[n]o healthy and supportive adult was available” to guide

Brown. Brown was neglected in every way by his

caretakers, who lived in a chaotic environment and were not

able to attend to his basic needs. Dr. Clausen opined that it

was highly likely that Brown was also sexually abused by

Laurence, which contributed to his lack of faith in adults.

Because of the abuse and neglect, Brown’s “development

was arrested and his cognitive and emotional development

impeded.”

Childhood trauma also impacted Brown’s academic

performance and adolescent development. Brown attended

at least eight schools from kindergarten through eleventh

grade. The frequent change of schools and mental health

problems negatively impacted his school performance and

academic achievement. Brown received low test scores

through sixth grade and performed even worse in middle and

high school yet was permitted to progress on through grade

levels. Despite his poor academic performance, Brown was

never placed in special education classes.

Dr. Clausen also discussed Brown’s lifelong substance

abuse. Because Brown did not receive treatment despite

showing symptoms of PTSD in early childhood and major

depressive disorder in adolescence, he self-medicated with

drugs and alcohol. Brown began drinking alcohol when he

was around eight years old, using and selling marijuana and

PCP at age thirteen, and by age sixteen, he was charged with

felony possession of PCP and marijuana. Dr. Clausen

reviewed reports from friends and family detailing that by

the time Brown was sixteen, he was using large amounts of

PCP and cocaine and was acting “crazy.” Declarants

reported that Brown had developed addictions to alcohol,

marijuana, and cocaine and that he had become paranoid and

BROWN V. BROOMFIELD 23

delusional. He thought people were trying to kill him and

once tried to burn a tattoo from his body using a cigarette

lighter. Brown tried to sell cocaine to make money but often

used his own supply and would become desperate for more

and steal or start a fight to get money. Dr. Clausen

concluded that Brown’s symptoms were consistent with

anxiety disorder, mood disorder, psychotic disorder, and

polysubstance dependence. Brown was genetically

vulnerable to the development of psychiatric illnesses and

substance abuse issues, and according to Dr. Clausen,

Brown’s substance abuse likely exacerbated his mental

health conditions.

Dr. Stewart conducted a psychiatric assessment of

Brown in April and May 2007 to identify the significant

factors affecting his mental and psychological development

and functioning and to render an opinion as to Brown’s

mental state at the time of the murder. Like Dr. Clausen, Dr.

Stewart concluded that Brown was genetically vulnerable to

the development of psychiatric illnesses and substance abuse

issues based on the history of mental illness in his family.

Dr. Stewart also agreed that Brown’s substance abuse likely

exacerbated his mental health symptoms. Brown’s early use

of alcohol and drugs was a common type of self-medication

for survivors of childhood victimization. He noted that

marijuana in high doses, which Brown was allegedly taking,

when mixed with alcohol can cause hallucinations and

delusions and that cocaine and that PCP can cause full-

blown paranoid psychosis, agitation, and aggression.

Dr. Stewart opined that in 1987, the year before the

underlying offense, Brown’s “mental stability was

noticeably compromised and he appears to have been

decompensating at a fairly rapid rate. He began displaying

signs of acute mental and emotional disturbance, including

24 BROWN V. BROOMFIELD

depression, suicidality, extreme behavioral disorganization

consistent with psychosis, and illogical thoughts and

behavior.” Dr. Stewart noted Brown’s hospitalization in

January 1987 after attempting to drive off the road and that

he appeared to be in a delusional and psychotic state when

he presented at the emergency room. Dr. Stewart also noted

other psychotic episodes and extreme paranoia reported by

Brown’s family, including a return to the hospital the

following month after Brown shot himself in the foot and his

attempt to burn a tattoo from his body with a cigarette

lighter. By the summer of 1988, Brown was reportedly

drinking heavily, using cocaine and marijuana on a daily

basis, and regularly ingesting PCP.

Dr. Stewart concluded that at the time of the underlying

offense, Brown “was suffering from extreme mental and

emotional disturbances which may have compromised his

ability to appreciate the criminality of his conduct and to

conform his conduct to the requirements of the law.” His

mental functioning was substantially impaired by “(1) the

effects of stimulant-induced psychotic disorder, (2) his

history of severe trauma and symptoms consistent with

[PTSD], (3) chronic poly-substance abuse, and (4) likely

long-standing mild organic dysfunction, with significant

signs of executive function impairment.” Dr. Stewart

believed that when Brown committed each of the offenses

that the prosecutor introduced in aggravation at the penalty

phase, he was suffering from extreme mental and emotional

disturbances similar to those he was experiencing at the time

of the murder.

Dr. Watson reviewed previous neurological tests

administered to Brown in 1991 by neuropsychologist Dr.

Vincent Nunno, and conducted new testing in 2001 and 2002

to assess Brown’s neuropsychological functioning. In a

BROWN V. BROOMFIELD 25

neuropsychological battery test from 1991, Brown’s full

scale IQ score was 77, suggesting abnormal functioning of

the brain and potential learning disabilities. According to

Dr. Watson’s additional testing, Brown’s overall IQ fell

within the average range at a score of 90, but his

performance IQ was within the low average range, showing

neurological dysfunction.

Dr. Watson found Brown to be mildly neurocognitively

impaired with problems in higher order problem solving and

executive functions, which suggests some disruption of

frontal lobe functions. Dr. Watson explained that the

characterization of Brown’s impairments as “mild” means

that his neuropsychological functioning is “significantly

below average.” Dr. Watson concluded that “Brown likely

suffers from long-standing mild organic dysfunction, with

significant signs of executive function impairment.”

a. Failure to Present Evidence of Alcohol and

Substance Abuse

Brown sets forth a number of subclaims asserting that

trial counsel was deficient in failing to investigate and

present evidence during the penalty phase relevant to several

areas of mitigation. Brown’s first two subclaims are based

on counsel’s asserted failure to investigate and explain the

cause and effects of his early, excessive, and long-term

drinking and drug abuse. Brown relies upon Porter v.

McCollum, 558 U.S. 30 (2009) and Jackson v. Calderon, 211

F.3d 1148 (9th Cir. 2000) to support the argument that long-

term substance abuse is highly probative mitigating

evidence. He further relies upon Rompilla v. Beard, 545

U.S. 374 (2005), and Wiggins v. Smith, 539 U.S. 510 (2003),

in which the Court found prejudice as a result of counsel’s

26 BROWN V. BROOMFIELD

failure to adequately investigate and present mitigating

evidence.

These cases are distinguishable because the state court

record in those cases included evidence of the deficient

investigations performed by counsel. See Porter, 558 U.S.

at 39–40; Rompilla, 545 U.S. at 382–91; Wiggins, 539 U.S.

at 517–18, 524–28; Jackson, 211 F.3d at 1161–63. Here, in

contrast, Brown did not submit any declaration or evidence

to show the scope of counsel’s investigation, what avenues

of investigation were pursued, whether counsel failed to

follow up on any red flags, or whether counsel decided to

cease further investigation based on what was discovered.

More importantly, Brown cannot demonstrate that counsel

was unaware of or failed to investigate Brown’s substance

abuse history. The record instead supports a determination

that counsel conducted a reasonable investigation and made

strategic decisions about how to present Brown’s history of

drug and alcohol use to the jury at the penalty phase. See

Strickland, 466 U.S. at 690–91.

Counsel knew, based on defense investigator interviews,

that when Brown was living in Compton and Perris, he was

selling and smoking marijuana and PCP, using cocaine, and

drinking alcohol. Counsel presented evidence about

Brown’s alcohol and substance use through Dr. Kaser-Boyd

and Dr. Choo. Dr. Kaser-Boyd testified that Brown started

drinking “heavily” from the age of nine, and that his

substance abuse served to numb him to early abuse and

dysfunction within his family. She explained that as a result

of his childhood abuse and trauma, Brown showed

symptoms of PTSD, had difficulty developing normally, and

self-treated his anxiety and depression with drugs and

alcohol. Dr. Choo testified that Brown was in a psychotic

state when he was hospitalized after smoking cigarettes

BROWN V. BROOMFIELD 27

laced with PCP, and that his psychosis could have been the

result of his PCP use. There is thus no evidence in the record

that Brown’s trial counsel was unaware of or failed to

investigate Brown’s prior history of alcohol and drug use.

It is true that trial counsel did not focus extensively on

his substance abuse, as was presented in postconviction

reports from Dr. Clausen and Dr. Stewart. But tactical

considerations supported trial counsel’s apparent decision to

avoid doing so. During voir dire, several jurors specified

that they were “against all drug use” or had strong feelings

about the use of illegal drugs. As Brown himself recognizes,

his trial occurred at a time when large segments of society

believed that the prevalence of crack cocaine had given rise

to young, violent, and remorseless “super-predator[s].”

Rather than focus on Brown’s extensive alcohol and drug

abuse and drug dealing to support his addictions, counsel had

Dr. Kaser-Boyd emphasize that Brown used drugs and

alcohol to relieve the pain from his childhood trauma. Trial

counsel could have reasonably determined that highlighting

extensive drug and alcohol use would be harmful rather than

mitigating. See Mayfield v. Woodford, 270 F.3d 915, 931

n.17 (9th Cir. 2001) (en banc) (“We note that juries are

unlikely to favor defenses based on abuse of dangerous

drugs in evaluating a defendant’s culpability for violent

behavior.”); Strickland, 466 U.S. at 690 (“[S]trategic choices

made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable.”). For

these reasons, the California Supreme Court could have

reasonably determined that counsel reasonably investigated

and presented evidence about Brown’s drug and alcohol

abuse at the penalty phase.

28 BROWN V. BROOMFIELD

b. Failure to Present Evidence of Mental Health

Brown next asserts that trial counsel failed to investigate

known evidence of his mental conditions and failed to

present and explain his mental health issues beyond age five,

including those caused by his substance abuse and brain

damage. According to Brown, the evidence presented by

counsel was limited to Dr. Kaser-Boyd’s testimony about

Brown’s early childhood and omitted vital information about

his psychiatric decompensation in the two years leading up

to the underlying offense. Brown also argues that none of

the testifying experts had the requisite expertise to opine on

Brown’s mental illness, impairments, or addictions.

Contrary to Brown’s arguments, the record confirms that

counsel reasonably investigated and presented evidence

concerning Brown’s mental health issues and brain

condition at various points throughout his life through

qualified expert opinions. Dr. Choo described Brown’s

drug-induced psychotic episode which led to his admittance

to a hospital at age seventeen. Dr. Kaser-Boyd—a clinical

psychologist who specialized in psychological assessment

and family violence—also extensively testified to Brown’s

mental health issues.

Specifically, Dr. Kaser-Boyd testified that the abuse

Brown endured prevented him from developing trust in

adults, that Brown suffered secondary trauma because he

observed abuse by his mother’s male partners, and that his

trauma was exacerbated by the drug dealing and shootings

on Piru Street in Compton. Dr. Kaser-Boyd explained to the

jury that Brown’s childhood trauma and upbringing resulted

in developmental arrest, feelings of distrust and

vulnerability, self-treatment through drug use and alcohol,

PTSD, and lower school performance and IQ. In addition,

BROWN V. BROOMFIELD 29

counsel presented evidence that Brown was prescribed

mental health treatment but never received it.

Brown contends that trial counsel was aware of “clear

indicators” of brain damage, such as low academic

achievement, learning disabilities, hyperactivity, and low IQ

scores, but failed to present this evidence to the jury or to

experts. The record belies his claim. Trial counsel

investigated Brown’s brain condition by retaining another

expert, Dr. Nunno, who performed a variety of neurological

tests on Brown in 1991. That counsel retained but did not

present Dr. Nunno or his evaluation indicates that a strategic

choice was made, which is entitled to a “strong presumption”

of reasonableness. Richter, 562 U.S. at 104; see also Dunn

v. Reeves, 594 U.S. 731, 740 (2021) (per curiam)

(concluding under AEDPA that it was reasonable to find that

counsel did not perform deficiently when they failed to hire

a particular expert because “we simply do not know what

information and considerations emerged as counsel

reviewed the case and refined their strategy”).

Trial counsel also presented through Dr. Kaser-Boyd

that Brown had poor academic achievement, should have

been placed in special education to help with his

developmental delays in intellectual ability and attention

deficits, had hyperactivity, a history of severe abuse, and

possibly suffered from organic brain damage. Dr. Kaser-

Boyd also conveyed Dr. Nunno’s neurological findings from

1991 that Brown’s full scale IQ score was 77, his verbal IQ

score was 76, and his performance IQ score was 83, all

within average ranges. 4 In short, the record does not support

4

Contrary to Brown’s allegation, Dr. Kaser-Boyd did not recommend

further testing to determine if Brown suffered organic brain damage. She

testified that she was not qualified to assess organic brain damage but

30 BROWN V. BROOMFIELD

Brown’s assertion that trial counsel failed to investigate and

present evidence concerning brain damage and intellectual

deficits.

Brown also contends that counsel failed to adduce

evidence of his rapid mental decompensation in the two

years before the murder, as reflected in Brown’s drastic

behavioral changes, daily substance use, and multiple

delusional episodes. This presents a closer question, as

admitting such evidence at the penalty phase would not have

contradicted the defense theory that Brown suffered abuse,

had untreated trauma, self-medicated with drugs and

alcohol, had intellectual deficiencies, and was surrounded by

a hopeless environment, which led to a psychotic breakdown

at age seventeen. Such evidence could have allowed the jury

to understand that Brown was suffering from extreme mental

and emotional disturbances at the time he allegedly

committed the underlying murder and other violent

uncharged offenses introduced in aggravation by

prosecutors.

As previously discussed, however, it appears that

counsel strategically avoided focusing on Brown’s daily

drug use, selling drugs to support his addiction, and

increasingly erratic and paranoid behavior because such

evidence could have portrayed Brown in a more

unsympathetic and dangerous light. As the Supreme Court

explained in Pinholster, federal courts sitting in habeas must

“affirmatively entertain the range of possible reasons []

counsel may have had for proceeding as they did.” 563 U.S.

at 196 (internal quotation marks omitted). The record here

demonstrates that counsel presented two experts to testify

based on the results given by Dr. Nunno, there was an indication that

Brown could be brain damaged.

BROWN V. BROOMFIELD 31

about Brown’s mental health condition and brain

impairments at different points in his life, and retained but

ultimately did not use another expert (Dr. Nunno) for reasons

that are unclear. See Burt v. Titlow, 571 U.S. 12, 23 (2013)

(“It should go without saying that the absence of evidence

cannot overcome the ‘strong presumption that counsel’s

conduct [fell] within the wide range of reasonable

professional assistance.’” (alteration in original) (quoting

Strickland, 466 U.S. at 689)). These considerations as to how

to present Brown’s cognitive state to the jury reflected

strategic decisions made after counsel engaged in a

reasonable investigation and retention of experts. See Bell

v. Cone, 535 U.S. 685, 702 (2002). Under the

circumstances, we cannot conclude that the state court’s

dismissal of the ineffective assistance of counsel claim was

objectively unreasonable. See Miles v. Ryan, 713 F.3d 477,

487 (9th Cir. 2013) (“Because [counsel’s] decision not to

focus on drug addiction appears to have been motivated by

reasonable strategic concerns, that decision is deserving of

great deference under Strickland and Pinholster.”).

c. Failure to Present Evidence of Sexual and

Physical Abuse of Brown’s Mother

Brown’s fourth subclaim is that counsel failed to

adequately investigate and present evidence that Brown’s

grandmother Lula McMaryion and her partner, Laurence

McMaryion, sexually and physically abused his mother

Catherine for years and failed to follow up on the possibility

that Laurence could be Brown’s father. In Brown’s view,

such evidence contradicted counsel’s depiction of his

caregivers as mostly loving and benign.

Trial counsel introduced substantial evidence of abuse

and neglect by Brown’s caregivers. Several witnesses

32 BROWN V. BROOMFIELD

testified about Brown having new and old wounds and scars

when he was removed from his Catherine’s home, that

Catherine would steal Brown’s clothes and lock the door so

that he could not leave, that Ricardo Laurie burned Brown

with cigarettes and whipped him with electrical cords, that

Brown was once found locked in a dark closet, that Brown

was afraid to ask Catherine for food because he did not want

to get whipped, and that the injuries Brown sustained likely

occurred over a period of time indicating a pattern of abuse.

Dr. Kaser-Boyd testified that Brown was one of the most

physically abused children she had ever seen and had been

subjected to physical and psychological abuse that later

manifested in symptoms of PTSD.

As to Lula and Laurence’s abuse of Catherine

specifically, counsel presented testimony at the penalty

phase that Catherine was physically abused by Lula and

Laurence; that Laurence frequently physically abused Lula’s

children when they were younger and, at that time, was

emotionally unpredictable; and that Catherine eventually

sought and received therapy to deal with the abuse she

suffered. 5 Counsel also investigated whether Lula or

Laurence abused Brown and apparently did not obtain

information leading to a stronger possibility of physical or

sexual abuse.

Given the extensive evidence of Brown’s own abuse and

neglect, additional evidence of abuse suffered by Catherine

is largely cumulative of the evidence defense counsel

already introduced. Brown does not therefore demonstrate

that counsel’s investigation was deficient, nor that the

5

As Brown notes, counsel possessed information from defense

investigator interviews that Laurence had sexually abused Catherine.

That information was not presented during the penalty phase.

BROWN V. BROOMFIELD 33

decision to limit the evidence regarding multigenerational

abuse was unreasonable.

d. Failure to Present Poverty and Neighborhood

Evidence

Brown contends that while counsel knew that Brown

grew up in poverty, counsel should have further investigated

and presented the testimony of a social historian to better

explain Brown’s childhood home on Piru Street. Because

the record does not contain information to support the

allegation that counsel did not investigate or obtain

information regarding Brown’s family history of poverty

and neglect, Brown fails to demonstrate that counsel

performed deficiently. See Titlow, 571 U.S. at 23.

Contrary to Brown’s allegations, counsel did introduce

evidence of Compton’s decline when Brown lived with Lula

and Laurence as well as specific evidence of conditions on

Piru Street. Dr. Johnson testified about the violence

common in Compton and how the lack of opportunities

affected black males like Brown. His testimony described a

mass exodus from the loss of jobs in the city between 1975

and 1988, mass unemployment, and a sharp increase in

violent crimes. Additionally, trial counsel marked three

photos of Lula’s house on Piru Street, Catherine identified

them in her testimony, and the court admitted them into

evidence.

Brown faults trial counsel for presenting only generic

evidence from Dr. Johnson, but counsel also presented

specific testimony from Brown’s uncle Wesley Armstrong

and Lula. Brown’s uncle grew up in Compton but left in

1979 when he was 20 years old because it had started to

change into a place with frequent shootings and robberies.

Wesley testified that he would return to Compton almost

34 BROWN V. BROOMFIELD

every weekend and wanted Lula and Laurence to move from

Piru Street because it was too rough and they could not

safely walk to their mailbox or be in their yard. Lula also

testified that when Brown was growing up on Piru Street,

fighting and shootings were prolific in the neighborhood and

violence occurred on the street.

Because Brown does not specify other relevant evidence

that counsel neglected to discover, we are not persuaded that

counsel rendered a deficient portrait of life on Piru Street and

the community violence and poverty that Brown

experienced. The decision to present Dr. Johnson’s

testimony in lieu of a social historian does not suggest

deficiencies “so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687; see Sanchez v.

Davis, 994 F.3d 1129, 1148 (9th Cir. 2021) (“The choice of

what type of expert to use, however, is one of trial strategy

and deserves a heavy measure of deference.”) (internal

quotation marks omitted). Accordingly, the California

Supreme Court could have reasonably determined that these

conclusory assertions did not state a prima facie case of

ineffective assistance of counsel.

e. Failure to Present Evidence About Gang Non-

Affiliation

Brown’s next subclaim asserts that counsel was deficient

for not investigating and presenting evidence that Brown

was not a gang member and was in fact regularly victimized

by gangs. To support this claim, Brown points out that

counsel knew that Brown’s cousin had stated that Brown

was not affiliated with the “Bloods,” and that Lula permitted

Brown to switch schools often because he was unhappy with

the other children or felt threatened by the environment.

BROWN V. BROOMFIELD 35

However, the record supports a finding that counsel

conducted a reasonable investigation and decided not to

focus on gang affiliation.

Prior to trial, counsel had information that Brown

bragged about being a Fruit Town gang member and hung

out on the corner with gang members and dressed like them.

Before opening statements during the guilt phase, counsel

sought to exclude any mention of gangs as a strategic matter.

The prosecutor requested, however, that the trial court

permit limited gang testimony by allowing a witness to

testify in the guilt phase that when Brown bragged about

having “smoked the bitch,” Brown “was putting this on Fruit

Town,” his gang, which meant he was swearing an oath that

he was telling the truth. The trial court determined that those

limited statements were more probative than prejudicial and

permitted the prosecutor to introduce them. No other

evidence about gangs was presented during the guilt phase.

At the penalty phase, counsel did present evidence from

which it could be inferred that Brown was afraid of certain

gangs and changed schools because of his conflicts with

them.

Because introducing evidence about Brown’s

relationship with gangs would have opened the door for the

prosecution to introduce rebuttal evidence that Brown may

have been a gang member, counsel’s decision to not present

further evidence was a strategic choice that “falls within the

wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Based on the potential for

prejudice, this appears to be a situation where counsel

reasonably and strategically decided to minimize testimony

and evidence regarding Brown’s possible gang affiliation

rather than direct the jury to resolve the question of whether

Brown was a gang member. See Williams v. Woodford, 384

36 BROWN V. BROOMFIELD

F.3d 567, 618 (9th Cir. 2004) (determining that trial counsel

did not render ineffective assistance by failing to present

mitigation evidence that would have opened the door to

rebuttal evidence regarding gang membership).

f. Failure to Prepare and Examine Experts

Brown argues that counsel improperly selected experts

for the penalty phase and failed to adequately prepare and

examine them. He states that instead of calling Drs. Kaser-

Boyd, Choo, and Johnson, counsel should have hired a social

historian, and mental health and gang experts. Brown’s

argument hinges on the idea that if he had better experts, he

would have had a more favorable outcome.

However, the selection of the type of expert to use is

entitled to deference as a matter of trial strategy. See

Sanchez, 994 F.3d at 1148. Dr. Kaser-Boyd was a mental

health expert with expertise in forensic psychology, family

violence, and child abuse—areas central to Brown’s

mitigation theory. Dr. Choo testified because she was the

attending physician when Brown was hospitalized for a

psychotic episode. Dr. Johnson spoke to the socioeconomic,

educational, and professional hardships young black males

like Brown experienced growing up in Compton. And as

discussed, it was reasonable for counsel not to retain a gang

expert to avoid opening the door to prejudicial rebuttal

evidence concerning Brown’s possible gang affiliation.

Brown contends that trial counsel failed to prepare and

examine the experts, but he does not specify what counsel

should have done differently to prepare them. Moreover,

Brown’s argument that counsel’s investigation and

preparation caused his experts to undermine his defense

theory is belied by the record. Counsel’s mitigation strategy

was to show that Brown suffered a traumatic and abusive

BROWN V. BROOMFIELD 37

childhood and that despite recommendations for counseling

and signs that Brown struggled in school with a low IQ,

Brown never received the mental health treatment or

academic support that he needed. Instead, Brown grew up

in an area rife with violence and lack of opportunity, and as

a result of this chaotic environment, Brown self-medicated

with drugs and alcohol. Counsel argued that a combination

of these factors eventually caused Brown to have a psychotic

breakdown a year before the underlying offense. The three

experts at trial all supported this theory: Dr. Kaser-Boyd

spoke to Brown’s trauma and mental health issues resulting

from his childhood and why Brown resorted to drugs and

alcohol, Dr. Johnson spoke to the violence and economic

strife in Brown’s neighborhood in Compton, and Dr. Choo

described Brown’s psychiatric hospitalization.

***

In sum, the California Supreme Court could have

reasonably determined that Brown failed to make a prima

facie claim of ineffective assistance of counsel because there

was no evidence that trial counsel failed to investigate or

make reasonable strategic choices about Brown’s history of

drug and alcohol abuse; mental health conditions; family

history of abuse and neglect; gang ties; and poverty and

neighborhood history. As the State points out, much of the

new evidence presented by Brown in his postconviction

petitions was cumulative of the evidence trial counsel

already presented at the penalty phase. Where trial counsel

did not present or focus on certain evidence, such as Brown’s

chronic substance use, gang non-affiliation, or other

episodes of paranoid and erratic behavior, the record reflects

that these were strategic decisions by trial counsel.

Therefore, the California Supreme Court could have

reasonably concluded that trial counsel did not render

38 BROWN V. BROOMFIELD

deficient performance. See Strickland, 466 U.S. at 690. In

light of our “doubly deferential” standard of AEDPA review,

Knowles, 556 U.S. at 123, we cannot conclude that the

California Supreme Court’s rejection of Brown’s ineffective

assistance claim was objectively unreasonable.

2. Other Claims of Deficient Performance at the

Penalty Phase

Brown also contends that trial counsel was ineffective

for failing to: (a) rebut the uncharged acts introduced against

Brown during the penalty phase; and (b) failing to present

Brown’s positive qualities, failing to request an LWOP jury

instruction, and failing to object to closing arguments made

by the prosecution.

a. Failure to Rebut Evidence of Uncharged

Crimes

As evidence in aggravation, the State presented several

witnesses to testify about five uncharged violent offenses

allegedly committed by Brown in the year leading up to the

murder of Christina Ramirez.

On November 14, 1987, Brown was riding in a Chevy

Blazer with Willie Woods when they spotted a Suzuki

Samurai with deep-dish rims and followed the car to

Sunnymead Park (the “Sunnymead incident”). Danny Coria

drove the car with his friend Simon Mireles in the passenger

seat. Either Brown or Woods yelled at them to get out of the

car and fired a shot, striking Coria in the arm and breaking

it. Coria and Mireles fled on foot. Although Coria initially

identified Woods as the shooter at the preliminary hearing,

he was unsure by the time of trial who the shooter was.

Woods admitted at trial that he had pleaded guilty to

attempted murder and use of a gun and infliction of great

BROWN V. BROOMFIELD 39

bodily injury for the robbery, yet testified that Brown was

the shooter. 6

The next day, on November 15, 1987, Francisco Carillo

drove to Castle Park in Riverside with his brother and three

others. Carillo was driving a 1979 Grand Prix. At around

midnight, a Chevy Blazer driven by Woods and

accompanied by Brown and Kevin Davis pulled alongside

the Grand Prix. Brown jumped out of the car and shot

Carillo in the arm (“Castle Park incident”). The bullet

passed through his chest and heart, killing him. Davis

positively identified Brown as the shooter.

On January 12, 1988, Brown was living with his

girlfriend, Flecia Bennett, and their two children when an

argument ensued between the couple. Brown struck Bennett

in the mouth, drawing blood. Bennett responded by hitting

Brown in the head with a chair. Brown drew a .38-caliber

handgun, pointed it at Bennett’s face, and said, “Bitch, I’m

going to kill you.” Brown was not prosecuted because

Bennett dropped the charges. Bennett claimed that she did

not believe that Brown actually wanted to kill her.

On January 27, 1988, Brown brandished a large knife at

a hotel desk clerk, Sharon Lee Baker, demanding all her

money. After Baker convinced Brown to leave, he

threatened to come back with a gun and kill her. A few days

later, he came back with a woman and two children asking

6

The November 14 (Sunnymead incident) and November 15 (Castle

Park incident) crimes occurred in 1987, not 1988 as described in the

California Supreme Court’s opinion on direct appeal, Brown, 73 P.3d at

1150. Both parties describe these incidents as having occurred in

November 1987, and the district court’s order, Brown’s federal habeas

petition, the trial transcripts, and closing arguments confirm that both

incidents occurred in 1987.

40 BROWN V. BROOMFIELD

to rent a room. The police were called and arrested Brown.

Brown argues that he did not match the age or weight of the

attacker, and notes that Baker could not identify Brown in a

photographic lineup.

On November 5, 1988, six days before Christina

Ramirez was shot, Brown, Broderick Fields, Mark Bender,

and Percell McClendon were driving when they noticed an

Oldsmobile Cutlass Supreme with straight-lace rims at a gas

station. The car was occupied by two teenage girls, Gloria

Alonza 7 and Monica Rodriguez, while the driver Danny

Alcaraz was looking under the hood. Brown allegedly

pointed a .38-caliber handgun at the girls and ordered them

out of the car. After they fled, Brown and Fields got into the

car and drove away. McClendon testified against Brown and

identified him as the person who committed the carjacking.

The rims were recovered at Bender’s home and the

Oldsmobile was found in the hills with its tires and stereo

system missing.

Brown contends that trial counsel failed to investigate

and call Simon Mireles to impeach Wood’s testimony

concerning the Sunnymead robbery on November 14, 1987,

and to call Gloria Alonza to show that Brown did not commit

the robbery of the Oldsmobile on November 5, 1988. 8

Specifically, Brown argues that Mireles’s testimony would

have helped discredit Woods’s testimony that Brown shot

7

Some portions of the record refer to Gloria Alonza as Gloria Alonzo.

8

To the extent Brown argues that he was prejudiced because counsel

failed to impeach other witnesses to rebut the aggravators, he does not

provide specific details in support of these conclusory assertions. See

James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations

which are not supported by a statement of specific facts do not warrant

habeas relief.”).

BROWN V. BROOMFIELD 41

Coria, and that testimony by Alonza would have cast doubt

that Brown was involved because she excluded Brown from

a photo array presented by a defense investigator.

However, both of these potential witnesses would have

had minimal impact in rebutting the State’s evidence.

Mireles’s declaration stated that he could not identify either

perpetrator of the Sunnymead carjacking and did not know

who shot Coria. And while Alonza was able to provide a

description of the Black male holding the gun in the

November 5, 1988 robbery, the defense investigator reported

that Alonza “did not see the second male, whatsoever.” As

the district court noted, Alonza’s testimony would not have

excluded Brown from being the second male involved in the

robbery.

Trial counsel could have reasonably decided not to call

Mireles or Alonza to testify because their statements do not

foreclose the possibility that Brown was involved in either

robbery. Even if Alonza had testified that she did not believe

Brown was the man with the handgun, the impact of her

testimony would have been minimized by the contrary

testimony of McClendon, who testified that he was in the car

when Brown pointed a handgun at Alcarez, Rodriguez, and

Alonza and stole their vehicle.

In addition, trial counsel effectively cross-examined

several of the State’s witnesses and presented rebuttal

evidence that cast doubt on the State’s case. For example,

trial counsel painted Woods as a liar. Although Woods

testified that he did not have a gun or know of anyone with

a gun on the night of the Sunnymead incident, counsel

succeeded in getting the court to take judicial notice of

Woods’ plea colloquy in which he admitted that he

personally used a firearm against both Coria and Mireles in

42 BROWN V. BROOMFIELD

that robbery. Further, Woods admitted that he had lied to the

police about how the Suzuki was stolen, and lied to a

probation officer about his involvement in the crime.

Woods also testified about the Castle Park incident,

stating that the same gun was used by Brown in both crimes.

After Woods’s testimony, trial counsel called a ballistics

expert who testified that the bullets recovered from the

underlying murder, the Sunnymead incident, and the Castle

Park incident were all from different guns. Counsel also

elicited testimony from another witness to the Castle Park

incident, who testified that the gunman who shot Carillo was

right-handed. As the parties acknowledge, Brown is left-

handed.

As for the attempted robbery of hotel clerk Sharon Lee

Baker in January 1988, a police detective testified that Baker

gave police a description of the suspect that did not match

Brown at the time. The jury also heard that Baker was

unable to identify the robber in a photographic lineup. In

view of the trial record in which counsel presented several

witnesses to refute the State’s evidence that Brown

perpetrated the uncharged offenses, the California Supreme

Court reasonably rejected Brown’s claim that trial counsel

was ineffective for failing to call Mireles and Alonza as

rebuttal witnesses. Strickland, 466 U.S. at 699.

b. Failure to Present Brown’s Positive Qualities,

Request an LWOP instruction, or Object to

Closing Argument

Brown’s other allegations of ineffective assistance at the

penalty phase need only be addressed briefly. Brown argues

that counsel was ineffective for not presenting his positive

traits as a caring father and as someone with artistic talent.

We find little merit to this claim because prosecutors could

BROWN V. BROOMFIELD 43

have rebutted this evidence with harmful testimony that

Brown did not want to have anything to do with naming his

children, that Bennett gave up custody of one child because

Brown was using cocaine, and that Brown’s children did not

know him well. Evidence about Brown’s hobbies would

have had little persuasive weight to counteract the severity

of his crimes. As the district court correctly observed,

“[g]iven the heinous nature of the crime, and counsel’s

apparent strategy at the penalty phase, it cannot be said that

their failure to introduce this weak evidence of a redeeming

characteristic amounted to the kind of representational

failure that Strickland contemplates.” Thus, we cannot

conclude that counsel’s exclusion of these positive

characteristics amounted to any kind of “gross

incompetence” warranting habeas relief. Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986).

Brown next argues that counsel should have requested a

jury instruction defining LWOP and clarifying that LWOP

meant that a defendant would never be released from prison.

Such an instruction would have been unnecessary. The jury

here was instructed that the only two available punishments

for Brown was a sentence of death or confinement in state

prison for life without the possibility of parole. It is unclear

what additional clarification was needed or what such

clarification would have accomplished. See also People v.

Ochoa, 966 P.2d 442, 506 (Cal. 1998) (explaining that the

California Supreme Court has recognized that “confinement

in the state prison for [LWOP]” is a commonly understood

phrase and therefore does not require further instruction as

to its meaning).

Finally, Brown asserts that counsel was ineffective for

failing to object to or rebut the prosecutor’s argument at

closing that Brown was a “sociopath” who lacked remorse

44 BROWN V. BROOMFIELD

and would kill again. Because no evidence supported that

he was a sociopath, Brown argues, counsel’s failure to object

was unreasonable.

A prosecutor commits misconduct during closing

argument when he manipulates or misstates the evidence

presented at trial. Darden v. Wainwright, 477 U.S. 168,

181–82 (1986). As California law recognizes, advocates

may employ commonly used terms like “sociopath” in

closing argument that are not based on a scientific definition.

See People v. Friend, 211 P.3d 520, 579 (Cal. 2009)

(rejecting claim that counsel should have objected when the

prosecutor called the defendant a “sociopath” during

argument because “the prosecutor was using language in

common currency to describe his interpretation of the

evidence”). Reviewing the trial record in this case, the

prosecutor permissibly used the term “sociopath” in

reference to its everyday meaning and did not refer to a

scientific opinion. Because Dr. Kaser-Boyd acknowledged

that Brown displayed several characteristics of antisocial

personality disorder and explained that some factors, like

hyperactivity disorder, “predispose[] children to a variety of

problems . . . certainly not just sociopathy,” it would have

been reasonable for the prosecutor to harken back to this

testimony. 9

9

It would have also been reasonable for Brown’s trial counsel to decide

not to object in the middle of the prosecution’s closing argument. See

United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)

(“Because many lawyers refrain from objecting during opening

statement and closing argument, absent egregious misstatements, the

failure to object during closing argument and opening statement is within

the ‘wide range’ of permissible professional legal conduct.” (citation

omitted)); see also Ceja v. Stewart, 97 F.3d 1246, 1253–54 (9th Cir.

1996) (“Counsel are given latitude in the presentation of their closing

BROWN V. BROOMFIELD 45

California law also allows a prosecutor to argue that a

lack of remorse implies that the defendant might kill again.

See People v. Boyette, 58 P.3d 391, 434 (Cal. 2002) (finding

permissible the argument “that the facts of the crime showed

an absence of remorse and, from that absence, the jury could

infer defendant was a threat to kill again”). Several

witnesses testified that Brown had bragged to others about

shooting Ramirez, and therefore a reasonable inference

could be drawn that Brown lacked remorse and was capable

of killing again. Because these arguments were permissible

under existing caselaw and were based on evidence in the

record, counsel was not deficient for failing to object to the

prosecutor’s closing remarks. See Juan H. v. Allen, 408 F.3d

1262, 1273 (9th Cir. 2005) (holding that counsel cannot have

been deficient for failing to make a meritless objection).

c. Prejudice

Because we conclude that counsel’s performance was

not deficient, we need not address whether Brown was

prejudiced by any such deficiency. Demetrulias v. Davis, 14

F.4th 898, 915 (9th Cir. 2021); see also Strickland, 466 U.S.

at 697 (“Although we have discussed the performance

component of an ineffectiveness claim prior to the prejudice

component, there is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the

same order or even to address both components of the

inquiry if the defendant makes an insufficient showing on

one.”). And while Brown asserts cumulative error, because

he has not demonstrated ineffective assistance of counsel at

arguments, and courts must allow the prosecution to strike hard blows

based on the evidence presented and all reasonable inferences

therefrom.” (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir.

1993))).

46 BROWN V. BROOMFIELD

the penalty phase, no prejudice can cumulate. See McGill v.

Shinn, 16 F.4th 666, 685 (9th Cir. 2021) (“If there are no

errors, there is no need to consider their cumulative effect.”).

B. Incompetent to Stand Trial

Brown’s second certified claim is that his mental

impairments rendered him incompetent to stand trial. The

California Supreme Court summarily denied his claim,

determining that Brown had not demonstrated a prima facie

basis for relief. The California Supreme Court’s denial of

Brown’s incompetence claim without an evidentiary hearing

was not based on an unreasonable determination of the facts.

Due process prohibits the criminal trial of “a person

whose mental condition is such that he lacks the capacity to

understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his

defense.” Drope v. Missouri, 420 U.S. 162, 171 (1975).

“[T]he standard for competence to stand trial is whether the

defendant has ‘sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding’

and has ‘a rational as well as factual understanding of the

proceedings against him.’” Godinez v. Moran, 509 U.S. 389,

396 (1993) (quoting Dusky v. United States, 362 U.S. 402,

402 (1960) (per curiam)). In California, a criminal

defendant is presumed competent and bears the burden of

proving incompetency by a preponderance of the evidence.

See Cal. Pen. Code § 1369(c)(3); Medina v. California, 505

U.S. 437, 452–53 (1992). Factors relevant to a competency

determination include “evidence of a defendant’s irrational

behavior, his demeanor at trial, and any prior medical

opinion on competence to stand trial.” Drope, 420 U.S. at

180.

BROWN V. BROOMFIELD 47

Brown sought to establish his incompetence by

presenting evidence in state court of his “brain damage, low

intellectual functioning, mental disorders, and substance

abuse.” He pointed to Dr. Kaser-Boyd’s penalty-phase

testimony that, as a result of Brown’s severe childhood

trauma, he experienced “development arrest” in which “his

intellectual ability, his ability to think clearly and to learn

new things becomes limited.” Brown also relied on Dr.

Choo’s testimony about Brown’s involuntary hospitalization

in 1987. Brown was admitted to the emergency room after

attempting to steer a car off the freeway and appeared

disturbed, agitated, and disoriented. Dr. Choo observed that

Brown was “delusional” and “not in contact with reality,”

stating that “the Crips are after me.” Dr. Choo concluded

that Brown was psychotic and exhibited unpredictable

behaviors, and she prescribed Haldol and four-point

restraints for his protection.

Neither expert evaluated Brown for competence to stand

trial or connected their assessments to Brown’s ability to

consult with counsel or understand the nature of the

proceedings at the time of trial. Indeed, Dr. Choo noted that

just before Brown was released from the hospital, he was

mentally clear of the psychotic state and no longer exhibited

confusion. Dr. Choo further testified that his psychotic

behavior was consistent with his admitted PCP use. It was

not unreasonable for the California Supreme Court to

conclude that this evidence did not establish a prima facie

claim of incompetence. See Williams, 384 F.3d at 609

(giving little weight to mental health expert declarations in

part because they “do not describe how [defendant’s]

probable mental impairment interfered with his

understanding of the proceedings against him or with his

ability to assist counsel in presenting a defense”).

48 BROWN V. BROOMFIELD

Brown also relies upon post-conviction evidence of his

poor performance in school and Dr. Watson’s

neuropsychological testing showing brain damage and

intellectual deficits. Dr. Watson conducted further testing of

Brown in 2002 to assess his neurological functioning. Dr.

Watson concluded that Brown was “functioning within the

average range of intellectual ability overall,” and had a full

scale IQ of 90. His report noted, however, that Brown

showed “average to mildly impaired levels of functions” in

several neurocognitive domains, and showed “significant

signs of executive function impairment,” which meant he

had slow processing speed and difficulty with “higher-order

problem solving and abstract matters.” Even crediting these

conclusions as true, Brown’s weaknesses in processing

speed and abstract reasoning do not demonstrate that he was

incapable of assisting legal counsel or unable to comprehend

the proceedings against him. On the contrary, Dr. Watson

noted that during their three interviews in 2002, Brown was

friendly, cooperative, and fully oriented. Like the other

experts, Dr. Watson did not evaluate Brown for competence,

and the neurocognitive impairments he identified do not

establish his incompetence to stand trial. See, e.g., Atkins v.

Virginia, 536 U.S. 304, 318 (2002) (“Mentally retarded

persons frequently know the difference between right and

wrong and are competent to stand trial.”).

Brown also seeks to rely on Dr. Stewart’s post-

conviction psychiatric evaluation of Brown in 2007. Dr.

Stewart concluded that at the time of the offense, Brown’s

mental functioning had been substantially impaired by his

history of severe childhood trauma and chronic substance

abuse, a stimulant-induced psychotic disorder, and likely

mild organic brain dysfunction. Dr. Stewart concluded that

Brown “suffered striking and obvious signs of mental

BROWN V. BROOMFIELD 49

decompensation and psychiatric dysfunction” during this

time and that these psychiatric disturbances “may have

compromised his ability to appreciate the criminality of his

conduct and to conform his conduct to the requirements of

the law.” There is no indication from the report, however,

that these issues impacted Brown’s ability to assist in his

defense or understand the proceedings against him. See

United States v. Garza, 751 F.3d 1130, 1135 (9th Cir. 2014)

(emphasizing the need for a clear connection between mental

illness, even if severe, and “some failure by the defendant to

understand the proceedings or assist in his own defense”);

Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir. 2005)

(explaining that when paranoid delusions are not related to

counsel or any aspect of the trial, they do not indicate

incompetence). 10

On the contrary, the evidence in this case supports the

presumption that Brown was competent to stand trial. Under

the facts of this case, Brown approached Gardner about

buying deep-dish tire rims, then made a plan to steal them,

targeted Ramirez’s truck, shot her and stole her truck,

proceeded to sell the rims, and then bragged about the crime

on several different occasions. These circumstances suggest

that Brown was able to understand his situation and engage

in goal-oriented behavior. The police report from January

1989, which included quotes from Brown’s interview with

police, also showed that Brown was coherent, intelligible,

and rational. See Williams, 384 F.3d at 605–06 (finding

relevant that the transcripts of defendant’s police interview

10

For the same reasons, postconviction evidence that Brown’s family

and friends observed Brown’s increasing drug use and paranoid and self-

harming behavior in the two years leading up to the crime does not

support a finding that Brown was incompetent to stand trial.

50 BROWN V. BROOMFIELD

did not “evidence any bizarre or irrational behavior”). In

addition, Brown does not contest that neither his trial

attorney nor any co-counsel raised an issue about his

competence to stand trial. Although not dispositive, this

factor weighs against a finding of incompetence. See id. at

606 (“[D]efense counsel is in the best position to evaluate a

defendant’s competence and ability to render assistance.”

(quotation marks and brackets omitted)). Similarly, there is

no evidence that Brown behaved strangely in the courtroom

and the trial court did not raise any concerns about his

competence. We have “deem[ed] significant the fact that the

trial judge, government counsel, and [defendant’s] own

attorney did not perceive a reasonable cause to believe

[defendant] was incompetent.” Hernandez v. Ylst, 930 F.2d

714, 718 (9th Cir. 1991); see also Douglas v. Woodford, 316

F.3d 1079, 1094 (9th Cir. 2003) (noting that the defendant

“did not exhibit any strange behavior in the courtroom, nor

did the prosecutor or trial judge express any concerns about

his competence” and concluding that he was not entitled to

an evidentiary hearing on competence). Based on the totality

of the evidence, we conclude that the California Supreme

Court did not make an unreasonable factual determination

that Brown failed to rebut the presumption of competency.

C. Eighth Amendment Claim

Brown’s third certified claim is that he has an intellectual

disability that renders him ineligible for execution under the

Eighth Amendment. Brown points to (1) his pre-trial

neuropsychological testing with Dr. Nunno, which showed

“a general pattern of intellectual dysfunction and academic

skill deficiencies,” (2) Dr. Watson’s opinion that Brown had

“long-standing mild organic dysfunction, with significant

signs of executive function impairment,” and (3) his

BROWN V. BROOMFIELD 51

consistently low grades and recommendation for special

education services as indicators of adaptive deficits.

In Atkins v. Virginia, the Supreme Court held that it was

unconstitutional to execute an intellectually disabled person

and “le[ft] to the State[s] the task of developing appropriate

ways to enforce the constitutional restriction upon [their]

execution of sentences.” 536 U.S. 304, 317 (2002) (quoting

Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)).

Following Atkins’s instruction, the California legislature

adopted clinical definitions of intellectual disability, which

require (1) “significantly subaverage general intellectual

functioning,” and (2) “deficits in adaptive behavior” that

(3) “manifested before the end of the developmental period.”

Cal. Pen. Code § 1376(a)(1); accord Atkins, 536 U.S. at 318

(“[C]linical definitions of mental retardation require not only

subaverage intellectual functioning, but also significant

limitations in adaptive skills such as communication, self-

care, and self-direction that became manifest before age

18.”).

The California Supreme Court reasonably determined

that Brown failed to make a prima facie showing of

intellectual disability under California’s three-factor

statutory test. As an initial matter, Brown has adduced no

medical expert declaration concluding that Brown has an

intellectual disability, much less one that explains how any

organic brain damage or other deficit satisfies the statutory

standards. See Ochoa, 50 F.4th at 903 (rejecting the

“contention that Atkins bars the execution of individuals with

an impairment ‘equivalent’ to intellectual disability”).

Nor has Brown presented evidence that he has

“significantly subaverage general intellectual functioning”

under prong one of the Atkins test. Cal. Pen. Code

52 BROWN V. BROOMFIELD

§ 1376(a)(1); see Atkins, 536 U.S. at 318. Although there is

no fixed IQ cutoff to establish intellectual disability in

California, see In re Hawthorne, 105 P.3d 552, 557 (Cal.

2005), the range of IQ scores that “clinical sources consider

as satisfying Atkins prong one” is “approximately 65 to 75,”

Ochoa, 50 F.4th at 903; see also Atkins, 536 U.S. at 309 n.5

(“It is estimated that between 1 and 3 percent of the

population has an IQ between 70 and 75 or lower, which is

typically considered the cutoff IQ score for the intellectual

function prong of the mental retardation definition.”).

Brown obtained a full-scale IQ score of 77 from Dr.

Nunno’s testing in 1991, prior to trial. Reviewing those test

results, Dr. Kaser-Boyd testified that Brown’s overall

intellectual functioning was at the level of a twelve- or

thirteen-year-old, consistent with his school records. That

placed him in “borderline intelligence,” the area between

low average intelligence and intellectual disability. When

Brown was retested by Dr. Watson in 2002, he had a full-

scale IQ score of 90. Dr. Watson opined that “Brown is

functioning within the average range of intellectual ability.”

Specifically, Brown scored on the average or low average

range for Verbal IQ (37th percentile), Performance IQ (16th

percentile), Verbal Comprehension Index (34th percentile),

Perceptual Organization Index (23rd percentile), and

Working Memory Index (37th percentile), with his lowest

score registering at 76 in Processing Speed Index (5th

percentile). Brown’s two overall IQ scores, Dr. Watson’s

declaration, and Dr. Kaser-Boyd’s penalty-phase testimony

do not support a finding that Brown has significantly

subaverage intellectual functioning.

As for prong two of the Atkins test, the California

Supreme Court requires that a petitioner demonstrate

adaptive deficits consistent with the current clinical

BROWN V. BROOMFIELD 53

definition of intellectual disability, citing with approval

standards set by the American Psychiatric Association

(“APA”). Hawthorne, 105 P.3d at 556–57. These standards

require evidence of “significant limitations in adaptive

functioning in at least two of the following skill areas:

communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, functional

academic skills, work, leisure, health, and safety.” Id. at

557. Such assessment is generally derived from

standardized measurements. See Diagnostic and Statistical

Manual of Mental Disorders (“APA DSM-IV”) 80 (4th ed.

2000) (recognizing that adaptive functioning scales

“generally provide a clinical cutoff score that is a composite

of performance in a number of adaptive skill domains”).

Brown contends that he has met the APA standards and

highlights Dr. Watson’s opinion that Brown appeared to

have “mild neurocognitive impairments” and “learning

disabilities with deficits in spelling, arithmetic and reading

speed,” as reflected in his low grades and recommendation

for special education services. However, Dr. Watson’s

report did not purport to evaluate Brown’s adaptive behavior

through standardized measures, nor did Dr. Watson

conclude that Brown had significant limitations in adaptive

functioning, explain what those deficits were, or discuss how

Brown’s sociocultural background would affect that

assessment. See In re Lewis, 417 P.3d 756, 767 n.15 (Cal.

2018) (observing that significant limitations on adaptive

behavior are found using standardized testing). Although

Brown struggled in school, his poor academic performance

could be the result of many other factors—including

childhood abuse, PTSD symptoms, family and

environmental turmoil, and early substance use—rather than

intellectual disability. See, e.g., Pizzuto v. Yordy, 947 F.3d

54 BROWN V. BROOMFIELD

510, 531 (9th Cir. 2019) (“Although some of these records

show that [defendant] received low grades and was held

back, there are many reasons [he] may have performed

poorly in school, and no expert opined that this poor

performance was evidence of [intellectual disability].”).

With scant evidence as to whether Brown demonstrated

significantly subaverage general intellectual functioning or

was deficient in adaptive skills, the California Supreme

Court reasonably determined that Brown did not state a

prima facie claim for relief under Atkins.

V. Uncertified Claims

Brown seeks to expand the COA to include three

uncertified claims, alleging (1) counsel’s ineffective

assistance at the guilt phase, (2) the discriminatory exclusion

of a prospective black juror, and (3) the denial of a jury

drawn from a fair cross-section of the community. We may

not review Brown’s uncertified claims unless a COA is

granted. See 28 U.S.C. § 2253(c)(1)(A). A COA may issue

“only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. § 2253(c)(2). To obtain

a COA, Brown must show that “jurists of reason could

disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed

further.” Buck v. Davis, 580 U.S. 100, 115 (2017) (citation

omitted). “This threshold question should be decided

without ‘full consideration of the factual or legal bases

adduced in support of the claims.’” Id. (citation omitted).

For the reasons that follow, we decline to grant COAs as to

Brown’s uncertified claims.

BROWN V. BROOMFIELD 55

A. Ineffective Assistance of Counsel at the Guilt Phase—

Claims 7 & 11

Brown first argues that counsel was ineffective at the

guilt phase for failing to investigate his competency and

failing to present alternative mental state defenses. As

discussed, trial counsel did investigate Brown’s mental state

and did not ignore any indicia of his mental limitations. See

supra, pp. 29–31. In light of our evaluation of Brown’s

substantive incompetence claim, see supra Section IV.B, the

California Supreme Court’s denial of his ineffective

assistance of counsel claim based on counsel’s failure to

investigate his competency was not unreasonable. See Davis

v. Woodford, 384 F.3d 628, 647 (9th Cir. 2004) (holding that

because petitioner failed to establish incompetence, his

corresponding ineffective assistance of counsel claim also

fails).

Evidence in the record also supports the presumption that

counsel reasonably declined to pursue a Not Guilty by

Reason of Insanity plea or present a defense that Brown

could not form the specific intent to commit murder. The

facts of the crime suggested that Brown understood the

nature of his acts and was capable of planning and executing

goal-oriented behavior. Further, a mental state defense

would have contradicted the defense theory presented at trial

that Brown was not the shooter—a defense supported by

some inconsistency in witness statements. See Turk v.

White, 116 F.3d 1264, 1267 (9th Cir. 1997) (“[O]nce

[counsel] reasonably selected the self-defense theory, his

duty to investigate the competency defense, which directly

conflicted with the self-defense theory, ended.”). Because

reasonable jurists could not disagree with the district court’s

decision to deny these claims, we decline to expand the COA

56 BROWN V. BROOMFIELD

to include these uncertified issues. See Buck, 580 U.S. at

115.

B. Batson Claim—Uncertified Claim 2

Brown also seeks to expand the COA to challenge the

prosecutor’s use of a peremptory strike against a prospective

Black juror under Batson v. Kentucky, 476 U.S. 79 (1986).

We follow a three-part burden-shifting test for assessing a

Batson claim of racial discrimination in jury selection:

First, the defendant must make out a prima

facie case by showing that the totality of the

relevant facts gives rise to an inference of

discriminatory purpose. Second, once the

defendant has made out a prima facie case,

the burden shifts to the State to explain

adequately the racial exclusion by offering

permissible race-neutral justifications for the

strikes. Third, if a race-neutral explanation is

tendered, the trial court must then decide

whether the opponent of the strike has proved

purposeful racial discrimination.

Johnson v. California, 545 U.S. 162, 168 (2005) (cleaned

up).

The juror stated during voir dire that “a cold blooded

murder of someone is the only reason I’d vote for the death

penalty.” After the prosecutor explained the felony murder

rule, the juror maintained his reluctance to impose the death

penalty for an accidental shooting. He also showed

confusion about the death penalty standard, repeating his

belief that the prosecutor must prove the propriety of a death

sentence beyond a reasonable doubt and requiring multiple

BROWN V. BROOMFIELD 57

explanations by the trial judge before accepting the correct

standard. The prosecutor exercised a peremptory strike

against the juror and defense counsel raised a Batson

objection. On two different occasions, the trial court found

no prima facie showing of racial discrimination and noted

that the prosecutor had concerns with the juror during voir

dire and had unsuccessfully challenged him for cause. On

this record, Brown has not established that the California

Supreme Court’s denial of his Batson claim “was contrary

to[] or involved an unreasonable application of” Batson. 28

U.S.C. § 2254(d)(1).

As a final matter, Brown argues that we must look

through the California Supreme Court’s summary denial in

2008 to the last-reasoned trial court decision in 1991, during

which time California required a prima facie showing of “a

strong likelihood that such persons are being challenged

because of their group association rather than because of any

specific bias.” People v. Wheeler, 583 P.2d 748, 764 (Cal.

1978). In 2005, the Supreme Court rejected Wheeler’s

“strong likelihood” standard as inconsistent with Batson’s

“inference” requirement. Johnson, 545 U.S. at 173.

Although the trial court rendered its decision in 1991 when

Wheeler governed, the California Supreme Court summarily

denied Brown’s petition in 2008, after Johnson had clarified

the governing Batson prima facie standard. Where, as here,

there was an intervening change in law between the time of

the lower state court ruling and the California Supreme

Court decision, we presume that the California Supreme

Court followed the correct standard under Johnson and

Batson. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

Under these facts, the district court’s decision to deny

Brown’s Batson claim is not “debatable.” Buck, 580 U.S. at

116 (citation omitted).

58 BROWN V. BROOMFIELD

C. Sixth Amendment Fair-Cross-Section Claim—

Uncertified Claim 1

Finally, Brown seeks expansion of the COA to raise a

Sixth Amendment claim on his “right to be tried by an

impartial jury drawn from sources reflecting a fair cross

section of the community.” Berghuis v. Smith, 559 U.S. 314,

319 (2010). Brown argues that there was a systemic

underrepresentation of Black and Hispanic populations in

the Riverside County jury pool at the time of his trial.

To establish a prima facie violation of the fair cross-

section requirement, a defendant must show “(1) that the

group alleged to be excluded is a ‘distinctive’ group in the

community; (2) that the representation of this group in

venires from which juries are selected is not fair and

reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection

process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). To

make a prong two showing, Brown provided a declaration

by sociologist Dr. Edgar Butler, who compared the jury

venires in three unrelated trials in Riverside County in 1987

and 1988 with the underlying population in Riverside

County. However, Brown presented no statistics on the

racial composition of the venire from which his jury was

drawn in November 1991. Dr. Butler’s examination of three

prior trials cannot substitute for jury selection data at

Brown’s trial. Accordingly, reasonable jurists could not

disagree with the district court’s resolution of Brown’s Sixth

Amendment fair-cross-section claim. See Buck, 580 U.S. at

115.

BROWN V. BROOMFIELD 59

***

Because Brown failed to demonstrate that “jurists of

reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to

proceed further,” id. (citation omitted), we decline to grant

COAs for Brown’s three uncertified claims.

VI. CONCLUSION

Under AEDPA’s deferential standard of review, Brown

has not demonstrated that the California Supreme Court’s

summary denial of his claims “was contrary to, or involved

an unreasonable application of, clearly established Federal

law” or “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). Therefore, we must

affirm the district court’s judgment denying Brown federal

habeas relief.

AFFIRMED.