Brown v. Ornoski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT GREENWOOD BROWN,  No. 05-99008

Petitioner-Appellant,

v.  D.C. No.

CV-94-08150-ABC

STEVEN W. ORNOSKI, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

June 14, 2007—San Francisco, California

Filed September 19, 2007

Before: Michael Daly Hawkins, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Hawkins

12605

12608 BROWN v. ORNOSKI

COUNSEL

Jan B. Norman, Los Angeles, California, for the petitioner-

appellant.

Barry J.T. Carlton, Supervising Deputy Attorney General, San

Diego, California, for the respondent-appellee.

BROWN v. ORNOSKI 12609

OPINION

HAWKINS, Circuit Judge:

Petitioner Albert Greenwood Brown, Jr. (“Brown”) was

convicted in California and sentenced to death for the rape

and murder of a fifteen-year-old girl. The district court denied

his petition for a writ of habeas corpus, but granted a certifi-

cate of appealability (“COA”) on two claims that Brown

received ineffective assistance of counsel in the sentencing

phase of his trial. We expanded the COA to include two addi-

tional claims, one also involving penalty phase ineffective

assistance of counsel, and another involving Brown’s claim

that lethal injection violates the Eighth Amendment. We

affirm the district court’s denial of the writ.

STATEMENT OF FACTS AND PROCEDURAL

HISTORY

On October 28, 1980, about 7:30 a.m., 15-year-old Susan

Jordan left her home to walk to Arlington High School. Peo-

ple v. Brown, 40 Cal. 3d 512, 522 (1985). She never arrived,

and efforts throughout the day to locate her were unsuccess-

ful. That evening, Susan’s mother answered the telephone and

a caller asked “Hello, Mrs. Jordan, Susie isn’t home from

school yet, is she?” Mrs. Jordan replied that she was not. The

voice then declared, “You will never see your daughter again.

You can find her body on the corner of Victoria and Gibson.”

At Mrs. Jordan’s request, the caller repeated the information,

then hung up. Within a half-hour, another call said, “On the

corner of Gibson and Victoria, fifth row, you will find a white

Caucasian body of a young girl in the orange grove.” Id.

While police officers were at the Jordan home later that

evening, a third call was received. The caller said, “You can

find Sue’s identification in a telephone booth at the Texaco

station at Arlington and Indiana.” Id. Officers were sent to the

Texaco station, where they discovered two Arlington High

12610 BROWN v. ORNOSKI

School identification cards belonging to Susan and a library

pouch from a book. Id. at 523.

Meanwhile, a police dog found Susan’s body lying face

down in the orange grove, with dirt piled up on both sides of

her head. The body was nude below the waist except for

socks, and Susan’s bra was partially pulled out from under her

blouse. Her jeans were located elsewhere in the grove. A

shoelace, apparently from one of her shoes, was wrapped

tightly around her neck. Homicide investigators found signs

of a struggle and indications that the body had been dragged

for some distance. Id. at 522-23.

About 9:30 p.m., another call was received at Susan’s

home, stating “In the tenth row, you’ll find the body.” The

Jordans were able to record this call. Two acquaintances of

Brown later identified the voice on the taped call as that of

Brown. Id. at 523, 525.

Early the next morning, the police set up roadblocks on the

streets near the grove and questioned passersby. Witnesses

recalled seeing a black man approaching Susan on the bike

trail, standing in the grove as she walked by, or following her.

Witnesses also reported seeing a brown Trans Am in the

vicinity on that date, which matched the description of

Brown’s car. Witnesses also described the man they had seen

in the area as wearing jogging clothes, some particularly

describing green running shorts and a green and white shirt.

Id. at 523.

The investigation quickly focused on Brown. About a week

after the murder, the authorities obtained a search warrant for

Brown’s residence. Inside the house, a telephone directory

was turned back to the page containing the Jordans’ listing.

There were newspaper articles about Susan’s death under

Brown’s bed, and two of her missing schoolbooks were found

in the den. The library pouch found in the telephone booth

had come from one of the books. Green running shorts and a

BROWN v. ORNOSKI 12611

green and white shirt were found in Brown’s work locker, and

undershorts found in the locker had semen stains. Id. at 523-

24. At trial, three witnesses positively identified Brown as the

man they saw near the grove on the day of Susan’s death. Id.

at 524.

Brown presented an alibi defense. His mother testified that

Brown was at home with her on the morning of October 28,

leaving the house for only about eight minutes to get milk,

and then leaving for work at 8:14 a.m. Id. at 525.

The jury convicted Brown of first degree murder and of the

special circumstance of murder in the course of rape. At the

penalty phase, the prosecution presented evidence that Brown

had previously raped a fourteen-year-old girl in her home as

she prepared to leave for school. Id. at 525. The defense pre-

sented psychiatric and background evidence suggesting that

Brown suffered severe emotional problems, including sexual

maladjustment and dysfunction. Id. at 525. Brown’s defense

psychiatrist opined that Brown killed Susan out of shame for

raping her, and that the phone calls indicated shame and a

desire to be caught. The psychiatrist opined that Brown was

not violent by nature, but was only a threat to women, and

that he would not present a problem if sentenced to life in

prison.

Several of Brown’s family members testified on his behalf.

Brown also took the stand, expressed remorse for the prior

rape, and asked the jury for mercy. Id. at 525. After deliberat-

ing for less than three hours, the jury returned a death verdict.

On direct appeal, the California Supreme Court affirmed

Brown’s conviction, but reversed the penalty based on what

it perceived as an improper jury instruction. Id. at 537-38.

However, the United States Supreme Court granted certiorari

and reversed the California Court, thus reinstating the death

penalty. California v. Brown, 479 U.S. 538, 539-43 (1987).

On remand, the California Supreme Court reversed again

12612 BROWN v. ORNOSKI

because the trial court had failed to make a proper record of

its denial of the motion for modification of the death penalty.

People v. Brown, 45 Cal. 3d 1247, 1263-64 (1988). The trial

court then made a proper determination on the record, which

was upheld by the California Supreme Court, and the United

States Supreme Court denied Brown’s petition for certiorari.

People v. Brown, 6 Cal. 4th 322 (1993).

Brown filed his federal habeas petition in May 1996, but it

contained many unexhausted claims. The district court stayed

proceedings, and Brown filed a habeas petition with the Cali-

fornia Supreme Court in November 1996, which was curso-

rily denied (on procedural grounds and on the merits) in an

unpublished opinion on June 3, 1999. Brown then filed a sec-

ond amended habeas petition in district court in August 1999.

The district court held an evidentiary hearing on two of

Brown’s claims involving penalty phase ineffective assistance

of counsel and then denied relief on all grounds.

The district court granted a COA on two ineffective assis-

tance of counsel issues—Claim 20, subparts (B) and (C)—and

denied Brown’s motion to expand the certificate. In an order

filed May 15, 2007, we expanded the COA to include

Brown’s Claim 20(A) (an additional claim of ineffective

assistance) and Claim 38 (a claim that lethal injection violates

the Eighth Amendment).

STANDARD OF REVIEW

The district court’s dismissal of the petition for a writ of

habeas corpus is reviewed de novo. Avila v. Galaza, 297 F.3d

911, 914 n.1 (9th Cir. 2002). The district court’s findings of

fact are reviewed for clear error. Allen v. Woodford, 395 F.3d

979, 992 (9th Cir. 2005).

Because Brown’s federal habeas petition was filed after

April 1, 1996, his action is governed by the Anti-Terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Under

BROWN v. ORNOSKI 12613

AEDPA, we defer to the last reasoned judgment by the state

courts and grant habeas relief only if the state decision was

“contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States” or the decision “was based on an

unreasonable determination of the facts in light of the evi-

dence presented in the state court proceeding.” 28 U.S.C.

§ 2254(d). To grant relief, we must determine that the state

court decision was “ ‘not only erroneous, but objectively

unreasonable.’ ” Middleton v. McNeil, 541 U.S. 433, 436

(2004) (quoting Yarborough v. Gentry, 540 U.S. 1, 5 (2003)

(per curiam)).

When the state court decides a claim on the merits, but does

not provide the reasoning for its decision, we undertake an

independent review of the record before that state court to

determine whether the state court decision was objectively

unreasonable. See Reynoso v. Giurbino, 462 F.3d 1099, 1109

(9th Cir. 2006); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.

2000). This review “is not de novo review of the constitu-

tional issue, but rather, the only method by which we can

determine whether a silent state court decision is objectively

unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th

Cir. 2003).

The state court decision is reviewed under the clearly estab-

lished law at the time of the state court decision. Stokes v.

Schriro, 465 F.3d 397, 401-02 (9th Cir. 2006). Clearly estab-

lished federal law as determined by the Supreme Court

includes only “ ‘the holdings, as opposed to dicta, of [the

Supreme] Court’s decisions.’ ” Carey v. Musladin, 127 S. Ct.

649, 653 (2006) (quoting Williams v. Taylor, 529 U.S. 362,

412 (2000)).

DISCUSSION

I. Penalty Phase Ineffective Assistance of Counsel1

1

The state argues that in evaluating this claim, this court should not con-

sider any of the evidence adduced at the district court’s evidentiary hear-

12614 BROWN v. ORNOSKI

A. Legal Standard

In addition to the deference granted to the state court’s

decision under AEDPA, we review ineffective assistance of

counsel claims in the deferential light of Strickland v. Wash-

ington, 466 U.S. 668 (1984). We must “indulge a strong pre-

sumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Id. at 689. To succeed on his claim, Brown must establish that

his counsel’s conduct fell below an objective standard of rea-

sonableness and that, but for counsel’s unprofessional errors,

there is a reasonable probability that the result of the proceed-

ing would have been different. Id. at 687, 694.

B. Claim 20(A)

Brown alleges his counsel was ineffective for failing ade-

quately to prepare his mental health expert, Dr. Summerour,

to testify. Brown contends that because Dr. Summerour had

developed negative information about Brown that could be

exposed during cross-examination, his counsel, Mr. Myers,

should not have called Dr. Summerour to testify at all.

The bulk of the information to which Brown objects came

from a life history that Dr. Summerour asked Brown to pre-

pare to aid in understanding his psychological makeup. In the

life history, Brown described his thoughts during the prior

rape of Kelly Porterfield. Brown related such thoughts as

“why should I let this grand opportunity go to waste” when

ing, unless this court first determines that the California Supreme Court’s

decision was an unreasonable application of clearly established federal

law, as determined by the Supreme Court. We need not address this issue

because we conclude that even considering the additional information

presented in district court, Brown’s claim still fails.

BROWN v. ORNOSKI 12615

he encountered Kelly in the home and “what the hell” when

deciding whether to ejaculate inside her. Brown’s history also

described the rape itself, indicating that “[w]hen I got ready

to ejaculate, her body motions changed and she was like giv-

ing in,” and “I asked her to put her leg around me and she

did.”

The relevant question is therefore whether reasonable coun-

sel, knowing the risk that this information would be brought

to light, would still call Dr. Summerour to testify. Although

Myers was clearly risking exposing this negative information

to the jury, the jury already knew about the Porterfield rape

from Kelly’s testimony. Myers needed at least to attempt to

offer some explanation to the jury for both the Susan Jordan

rape/murder and the prior rape of Kelly Porterfield.

In the penalty phase, the government pointed out that

Brown had not murdered Kelly Porterfield and had wound up

going to prison for that rape. The prosecutor suggested that

Brown learned from this mistake and murdered Susan Jordan

so there would be no witnesses to his crime. Dr. Summerour

provided some potentially beneficial information to dispel this

suggestion. Dr. Summerour concluded that Brown did not

have a sense of what is normal in the way of sexual attraction

and behavior, and that Brown’s problems may be partially

attributable to his mother, who had both physically and emo-

tionally abused him. Dr. Summerour indicated Brown had

complained his mother had spanked him so severely he could

not wear shorts to gym class. Dr. Summerour also testified

that Brown’s mother had told Brown that sex was dirty and

that he was not supposed to do “dirty things” with girls or his

fingers would fall off and one of his legs would get shorter.

Brown apparently had an uncle with some missing fingers and

believed this was what had happened to him.

Dr. Summerour explained that Brown suffered from severe

sexual dysfunction and was not able to have normal sexual

relations, being able to complete the act only if either he or

12616 BROWN v. ORNOSKI

the other person were completely in control. Dr. Summerour

also testified that Brown was basically in a state of arrested

development sexually, putting him roughly in an adolescent

stage, and that this probably explained his interest in young

girls.

Dr. Summerour also opined that Brown was not “antiso-

cial” or “sociopathic,” but actually could feel shame and

remorse for his actions, and that Brown did hold to some of

society’s values, such as working and education. Dr. Sum-

merour indicated that Brown’s feelings of shame were the

reason why Brown could not confront his victims. For exam-

ple, in the Kelly Porterfield rape trial, Brown had initially

pled not guilty, but when the time came for Kelly to testify,

Brown could not face her and pled guilty. Similarly, in the

penalty phase of this case, Brown refused to be present in the

courtroom when Kelly testified, and when Brown himself was

called to testify, he expressed regret that Kelly had suffered.

Dr. Summerour opined that Brown had killed Susan Jordan

out of shame for his actions and that Brown had left her face

down in the dirt so that he did not have to face her.

In addition, Dr. Summerour opined that Brown was suffer-

ing from a narcissistic personality disorder. Dr. Summerour

explained that this was an exaggerated self-love, which was

usually a compensation for feelings of inadequacy (in

Brown’s case, sexual impotency). He indicated that narcissis-

tic people often have a rich fantasy life and, in Brown’s case,

Brown imagined that he could somehow make things right

with Kelly Porterfield, make her fall in love with him, and

even marry him. Dr. Summerour explained that this disorder

may also have been why he made the phone calls on the eve-

ning of the murder — i.e., to get noticed and to be caught. Dr.

Summerour further testified that Brown had not received any

treatment for his sexual disorders while in prison for the

Porterfield rape.

[1] Although the picture painted by Dr. Summerour is not

a pretty one, it is significantly more sympathetic than the one

BROWN v. ORNOSKI 12617

portrayed by the government. Faced with horrific crimes

against teenage girls, it was not unreasonable for Myers to

conclude that some explanation that presented Brown as a

troubled individual, rather than a ruthless killer seeking to

avoid capture and compound the victim’s family’s pain, might

give Brown some hope for a life sentence.

[2] Myers himself testifies that he would do things differ-

ently if given a chance today but that, at the time, he believed

Dr. Summerour was capable, had a beneficial opinion about

Brown, and that perhaps his analysis would help the jury “see

Mr. Brown as human and might result in their showing some

mercy.” We do not judge counsel’s actions through the

twenty-twenty lens of hindsight, Edwards v. Lamarque, 475

F.3d 1121, 1127 (9th Cir. 2007) (en banc), and recognize

there are many different reasonable ways to try a case, id. at

1128. Although Myers’s decision to put Dr. Summerour on

the stand came with some risks, it came with benefits to

Brown as well, in an attempt to explain the genesis of his

behavior and portray him as more human and sympathetic to

the jury. These benefits were available only if Dr. Summerour

were called. We therefore agree with the district court that

Myers’s decision to have Dr. Summerour testify “might be

considered sound trial strategy,” Strickland, 466 U.S. at 689,

as a reasonable attorney could conclude that the positive out-

weighed the negative:

As the Court has previously ruled, counsel made a

reasonable strategic decision to present Dr. Sum-

merour’s opinions to the jury despite the baggage

involved. Summerour’s testimony was a major part

of the presentation in mitigation, portraying Peti-

tioner as an inhibited, sad figure with a fear of

women rather than as a vicious predator. The choice

to depict him as an ill man, at the mercy of his com-

plexes, was a reasonable strategic choice to try to

earn him sympathy and mercy.

12618 BROWN v. ORNOSKI

As such, we cannot say that it was objectively unreasonable

for the California Supreme Court to conclude Brown had not

satisfied the requirements of Strickland. We therefore affirm

the district court’s denial of Claim 20(A).

C. Claims 20(B) & (C)

Brown’s other ineffective assistance claims are so inter-

twined that they are best discussed together. Brown contends

that Myers was ineffective in the penalty phase because he

failed to conduct an adequate background investigation and

because, if this additional information had been presented to

a competently trained neuropsychologist (as opposed to a psy-

chiatrist), such an expert could have presented a more com-

pelling case to the jury.

1. Adequacy of Investigation

[3] “It is imperative that all relevant mitigating information

be unearthed for consideration at the capital sentencing

phase.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.

1999). In numerous cases, this court and the Supreme Court

have explained and reiterated this high standard for investiga-

tion in capital cases. See, e.g., Wiggins v. Smith, 539 U.S. 510,

533-34 (2003); Williams, 529 U.S. at 397; Stankewitz v.

Woodford, 365 F.3d 706, 719 (9th Cir. 2004); Wallace v.

Stewart, 184 F.3d 1112, 1116 (9th Cir. 1999).

Brown contends that Myers fell below this standard

because he failed to conduct an adequate background investi-

gation for the penalty phase. Myers interviewed Brown and

numerous family members about Brown’s childhood, but did

not specifically ask any of them about physical abuse. Myers

also did not obtain any of Brown’s military records, although

Brown indicated (and testified at the penalty phase) that he

had been disciplined for impersonating an officer. In addition,

Myers did not obtain any of Brown’s high school or college

records, relying on his impression that Brown was of normal

BROWN v. ORNOSKI 12619

literacy based on his ability to communicate, as well as the

life history Brown wrote for Dr. Summerour.

Brown argues that a more complete investigation would

have revealed that, while living with his great aunt for a year

or so around third grade, he (and his siblings) were beaten

with a broom handle. Brown’s military records reveal that he

was disciplined for being absent without leave (“AWOL”),

but do not indicate he had impersonated an officer. Brown’s

school transcripts reveal that he was doing rather poorly in

high school and that, although he had enrolled in a local com-

munity college, he had never completed a course. We con-

sider each of Brown’s allegations of deficiency in turn and in

relation to their potential impact on the sentencing proceed-

ing.

2. Additional Abuse by Aunt

[4] Even assuming Brown is correct that his counsel was

ineffective in failing to investigate childhood abuse, Brown

does not explain how the additional information about abuse

by his aunt could have altered the outcome of his penalty

phase hearing. To support his claim, he offers only his own

declaration that his aunt “used to beat me and all of the kids

with a broom handle. She was vicious.” Brown provides no

specifics as to the severity, duration, or frequency of these

beatings, nor does he offer the testimony of any family mem-

ber to corroborate his allegation.

Although childhood abuse can certainly constitute a miti-

gating factor, the jury in this case had already heard through

Dr. Summerour that Brown claimed he had been severely

spanked by his mother as a child — to the point of not being

able to expose his legs in gym class — and how her com-

ments to him about sex may have negatively impacted his

sexual development and resulted in his sexual dysfunction.

When asked about the alleged additional abuse by the aunt in

a deposition, Dr. Summerour explained that this was some-

12620 BROWN v. ORNOSKI

thing he would have probably told the jury about, to addition-

ally explain the etiology of Brown’s behaviors and problems,

but that the information would not have altered his basic diag-

nosis.

The state, on the other hand, had evidence that Brown had

recently raped another young girl [Kelly Porterfield] and had

also been involved in a voyeuristic sexual incident with a 12-

year-old girl before that. The rape and murder of Susan Jor-

dan was bad enough by itself, but it was also coupled with

taunting phone calls to torment her family. The jury deliber-

ated less than three hours before reaching a death verdict.

[5] At best, the additional information about childhood

abuse would have probably bolstered Summerour’s diagnosis,

but in light of the other information before the jury, there is

no reasonable probability that this information — particularly

in the vague manner presented by Brown — could have

resulted in a different outcome of the penalty phase of the

trial.

3. Military Records

[6] Brown also argues that he was prejudiced by Myers’s

failure to obtain his military records because the jury was

wrongly informed (by Brown) that he was disciplined for a

more severe offense than a simple AWOL. Even assuming

Myers was deficient in failing to verify Brown’s account,

Brown again cannot demonstrate prejudice. Brown’s explana-

tion at trial was that he impersonated an officer as a joke on

new recruits and that others played along with it. Thus, the

impersonation was not portrayed to be a “severe” offense to

the jury. Moreover, in light of Brown’s serious crimes that

were the true focus of the penalty phase, there is no reason-

able probability of a different outcome if the jury had known

BROWN v. ORNOSKI 12621

that Brown was only disciplined for being AWOL instead of

for impersonating an officer.2

4. School Records

Brown’s final claim is that his counsel should have

obtained his school records, which would have revealed poor

performance and, in turn, identified the need for psychologi-

cal testing, which would have revealed that Brown suffered

from dyslexia and attention deficit disorder (“ADD”). As

explained by Brown’s new expert, Dr. Stotland, in his decla-

ration and at the evidentiary hearing, Brown’s attention deficit

affects his learning, behavior, and decision-making, making

him impulsive. Dr. Stotland opines that Brown responds to

“stressful or complicated circumstances by repeating or

escalating his behavioral pattern even when his actions are

inappropriate or harmful,” and that Brown has “severe diffi-

culty inhibiting inappropriate behavior.”

In his deposition, Dr. Summerour — Brown’s trial expert

— explained that he did not pick up on Brown’s condition

based on his meetings with Brown or his review of Brown’s

life history, but that learning problems or other problems in

the classroom might have alerted him to the possibility of

ADD. He also agreed that ADD could have contributed to

impulse control problems and heightened frustration. Dr.

Summerour also testified that if he had known Brown suf-

fered from learning disabilities or ADD, he would have dis-

closed this to the jury, even though it would not have altered

his ultimate conclusions or diagnosis.

[7] Brown therefore has a good argument that his counsel’s

performance was deficient by failing adequately to investigate

Brown’s academic background and provide this relevant

2

Curiously, even at the federal court evidentiary hearing, Brown contin-

ued to assert that he had been disciplined for impersonating an officer,

notwithstanding the now-present military records.

12622 BROWN v. ORNOSKI

information to Dr. Summerour. See Williams v. Taylor, 529

U.S. 362, 370 (2000); Mayfield v. Woodford, 270 F.3d 915,

928 (9th Cir. 2001); Caro v. Woodford, 280 F.3d 1247 (9th

Cir. 2002). Once again, however, the question of prejudice

looms: was there a reasonable probability of a different out-

come if Brown’s school records had been available at the time

of the penalty phase?

[8] It is not clear whether, even if Myers had obtained the

school records and provided them to Dr. Summerour (or any

other mental health expert), Brown would have actually been

diagnosed with ADD. Dr. Summerour testified that at the time

of Brown’s trial in the early 1980’s, ADD was considered a

childhood disorder that was outgrown by adulthood. Thus,

although Dr. Summerour testified he could have probably

identified ADD today using current tests, in the early 1980’s,

the diagnosis “depended more upon observation of behavior

problems in children.” Dr. Stotland’s diagnosis of Brown in

1996-97 may be correct, but this does not mean that counsel’s

failure to obtain the academic records in 1981-82 actually hin-

dered the penalty phase mitigation presentation.

Even if Brown’s ADD could have been diagnosed in the

early 1980’s, there was little additional benefit to be gained

from Dr. Stotland’s testimony. In large part, both Dr. Sum-

merour and Dr. Stotland agreed that Brown had severe sexual

dysfunction that had stemmed from negative interactions with

his own mother and other women, and this was probably the

most explanatory or sympathetic evidence that could be put

before the jury. Dr. Stotland described Brown as having

“obsessive-compulsive” behavior, but also agreed that Dr.

Summerour’s diagnosis of narcissistic personality disorder

was not unreasonable and that Brown definitely had a prob-

lem with narcissistic personality traits. Dr. Summerour also

testified during the penalty phase that Brown was immature

BROWN v. ORNOSKI 12623

and had impulse control problems, which was consistent with

Dr. Stotland’s later observations.3

Even if Dr. Stotland could have, as Brown claims, pres-

ented a more “cohesive” explanation of Brown’s problems to

the jury, Brown had a mountain of aggravation to overcome,

including the prior rape of a young girl, the rape and murder

of the young victim in this case, and his tormenting phone

calls to the family following the event. The jury was also

aware from Brown’s own testimony that Brown professed

remorse over the prior rape of Kelly Porterfield, but remained

strangely silent as to Susan Jordan’s rape or murder.

[9] To be sure, horrific facts do not preclude a finding of

prejudice. See, e.g., Smith v. Stewart, 189 F.3d 1004, 1013

(9th Cir. 1999); Mak v. Bodgett, 970 F.2d 614, 620-21 (9th

Cir. 1992). But giving the state court decision the deference

it is due under AEDPA, we cannot say that the California

Supreme Court was objectively unreasonable in concluding

that Brown had not satisfied both prongs of Strickland. Dys-

lexia and ADD — assuming they could have even been diag-

nosed in adults in the early 1980’s — are somewhat common

disorders; although they add quantity to the mitigation case,

they add little in terms of quality. It is doubtful that this infor-

mation, even when explained by Dr. Stotland, would have

generated significantly more sympathy than the explanation

3

Indeed, we note that it is possible that Dr. Stotland — armed with all

the information Brown says should have been discovered — could have

actually been a more damaging witness than Dr. Summerour. Dr. Stotland

admitted during the evidentiary hearing that Brown definitely had antiso-

cial traits and that the telephone calls to Susan’s family after the murder

were consistent with an antisocial desire to torture someone, whereas Dr.

Summerour consistently testified that Brown was not antisocial or socio-

pathic. Dr. Stotland seemed to opine that the murder occurred as a result

of escalating, inappropriate reactions to the complicated sexual situation

Brown was involved in, and that Brown may have had anger against

women. Dr. Summerour, on the other hand, testified that Brown was moti-

vated by sexual urges rather than violence toward women, and explained

the murder as a consequence of shame.

12624 BROWN v. ORNOSKI

of Brown’s neurosis that was already given by Dr. Summerour,4

or, for that matter, that either of these explanations was going

to overcome the substantial aggravating case. We therefore

affirm the district court’s denial of the writ on this claim.

II. Cruel and Unusual Punishment

Brown also argues that lethal injection constitutes cruel and

unusual punishment in violation of the Eighth Amendment.

He alleges in his habeas petition that “lethal injection violates

the ban on cruel and unusual punishment because it does not

comport with evolving standards of decency, and it inflicts

pain that is cruel, wanton, and unnecessary.”

Brown raised this general challenge to lethal injection

before the California Supreme Court in his habeas petition,

and it was denied on the merits. In district court, Brown

adduced no evidence to further this claim and opted not to

brief the issue, essentially conceding it was foreclosed based

on “the current state of the law and record in the case.”

[10] On appeal, however, Brown attempts to rely on two

recent California district court decisions holding that the cur-

rent lethal injection protocol utilized by California violates the

Eighth Amendment: Morales v. Tilton, 465 F. Supp. 2d 972

(N.D. Cal. 2006) and Morales v. Hickman, 415 F. Supp. 2d

1037 (N.D. Cal. 2006). These cases are actually § 1983 cases,

and do not hold that lethal injection is cruel and unusual in

and of itself (as Brown’s petition alleges), but only that the

protocol as currently implemented in California may violate

the Eighth Amendment because the state does not have proce-

4

In his deposition, Dr. Summerour opined: “[I]n this case, I felt what

was important was that the man had evidence of shame and guilt and that

he hadn’t had the benefit of much treatment. And that was mitigating and

that was sympathetic. I think that’s much more sympathetic in my opinion

than saying he has a learning disorder and has attention deficit disorder.

That’s just my opinion.”

BROWN v. ORNOSKI 12625

dures in place to insure that inmates are unconscious (from an

initial and rather painless injection of sodium thiopental) prior

to injecting fatal doses of pancuronium bromide and potas-

sium chloride.

[11] Under AEDPA, however, we must analyze the Califor-

nia court’s conclusion in light of the clearly established fed-

eral law at the time of the state court decision. Stokes v.

Schriro, 465 F.3d 397, 401-02 (9th Cir. 2006). There is no

Supreme Court precedent holding lethal injection to be uncon-

stitutional, and there certainly was none in existence at the

time of the California Supreme Court’s denial of Brown’s

claim in 1999. Because on this record Brown cannot demon-

strate that the California Supreme Court’s denial was an

objectively unreasonable application of clearly established

Supreme Court precedent, we affirm the district court’s denial

of the writ on this claim.5

III. Uncertified Issues

A. Standard of Review

After the district court issued the COA as to Claims 20(B)

and (C), Brown asked this court to expand the COA to include

several additional claims. A motions panel denied this

request, but indicated Brown could brief these issues to the

merits panel, which he has done. We construe this additional

briefing as a further motion to expand the COA. Circuit Rule

22-1(e). To receive a COA on any of these issues, Brown

must demonstrate that “reasonable jurists would find the dis-

5

We do not view Brown’s habeas petition as stating an “as applied”

challenge to California’s lethal injection protocol. Brown is free, however,

to challenge the particular protocol used by the State of California in a

§ 1983 action, as did the petitioner in Morales, and need not raise this

issue in habeas proceedings for fear of waiver. See Hill v. McDonough,

126 S. Ct. 2096, 2102 (2006) (holding “as applied” challenge to a particu-

lar lethal injection protocol can be brought as a § 1983 action and is not

barred as a second or successive habeas petition).

12626 BROWN v. ORNOSKI

trict court’s assessment of the constitutional claims debatable

or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

B. Jurors Overhearing Comments Regarding Case

Brown claims he was deprived of his Fifth, Sixth, Eighth,

and Fourteenth Amendment rights because the state trial court

failed to declare a mistrial after four jurors overheard com-

ments regarding the case. It appears that during the guilt

phase of the trial, four jurors went to lunch together at a local

fast food restaurant. After they sat down, another group sat

down near them, which may have included some members of

Brown’s family and/or friends. This second group was talking

very loudly and made comments about the case the jurors

could overhear. The four jurors finished their lunch as quickly

as possible and did not discuss the case amongst themselves.

They returned to the courtroom and informed the judge what

had happened.

The judge communicated ex parte with the four jurors, and

there is no transcript of what occurred. He did, however, have

the jurors make “little reports” about what happened, which

were handwritten notes stapled to the minute order for Febru-

ary 1, 1982. These notes tell the same basic story — the group

went to eat, the second group sat down and was talking nois-

ily about the case, so the jurors decided to ignore them and

finish lunch as quickly as possible. Only one note appears to

describe the subject matter the other group was discussing —

“were witnesses expert or not, did kids [sic] testimony count,

etc.”

Following the incident, the court admonished the entire

jury on the record:

[I]t has come to my attention that from time to time

you might be placed in a position where there is

somebody in the vicinity talking about the case and

you can correctly ignore it and, of course, if you can,

BROWN v. ORNOSKI 12627

to avoid hearing anything that you can and if you

can, simply do your best to ignore it and try to treat

it as though you never heard anything. Put it out of

your mind. Stay with just what is received here in

court.

After the jury was dismissed for the day, the court informed

trial counsel what had occurred and made the notes available

for them to review:

There are some statements here from some of the

jurors and I think probably the best thing to do is

make them available for counsel at their conve-

nience. Some of the jurors heard some others talking

regarding the case and they ignored it and I have

[sic] them make a little report and so I will make that

available for counsel at your convenience . . . .

The record does not indicate that either counsel asked to

examine the jurors in more detail.

Brown now argues that the trial court erred by failing to

declare a mistrial sua sponte. Although a more developed

record would certainly make appellate review easier, the evi-

dence that was submitted about the incident in the form of the

“little reports” suggests that the encounter was relatively brief

and that the jurors did their best to ignore the comments and

minimize their exposure.

[12] The California Supreme Court was not objectively

unreasonable in denying Brown’s claim on the merits,

because Brown has not demonstrated that the alleged error

had a “substantial and injurious effect on the verdict.” Brecht

v. Abrahamson, 507 U.S. 619, 623 (1993). The jurors

promptly reported the incident to the trial judge and did not

discuss any comments they may have overheard among them-

selves. The trial court properly instructed the jury to disregard

any extraneous comments and to decide the case based only

12628 BROWN v. ORNOSKI

on the evidence at trial; juries are presumed to follow the

court’s instructions. Weeks v. Angelone, 528 U.S. 225, 234

(2000). Furthermore, considering the eye-witness testimony

and the extensive evidence found at Brown’s home and work

locker linking him to the crime, the guilt phase evidence

against Brown was overwhelming. Because the district court’s

assessment of this constitutional claim was neither wrong nor

debatable, we deny the COA on this claim.

C. Other Claims6

[13] In his 39th Claim for relief, Brown argues that the

death penalty is unconstitutionally arbitrary and that a defen-

dant’s socio-economic background influences who is sen-

tenced to death. In his 40th Claim for relief, he argues that the

death penalty is inherently unconstitutional because the con-

sistency required by Furman v. Georgia, 408 U.S. 238 (1972),

and the individual analysis required by Lockett v. Ohio, 438

U.S. 586 (1978), are irreconcilable. He concedes, however,

that there is no valid legal basis for either claim under existing

law. We therefore deny the COA on these claims as well

because, by his own admission, Brown cannot demonstrate

any clearly established Supreme Court precedent that was

misapplied by the California state court in denying his peti-

tion.

AFFIRMED.

6

At oral argument, Brown withdrew his request for a COA on Claim 35

— improper excusal of conscientious jurors — in light of the Supreme

Court’s recent decision in Uttecht v. Brown, 127 S. Ct. 2218 (2007).