Paul Browning v. Renee Baker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL L. BROWNING, No. 15-99002

Petitioner-Appellant,

D.C. No.

v. 3:05-cv-00087-

RCJ-WGC

RENEE BAKER, Warden; ADAM PAUL

LAXALT, Attorney General of the

State of Nevada, ORDER AND

Respondents-Appellees. AMENDED

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Senior District Judge, Presiding

Argued and Submitted March 16, 2017

San Francisco, California

Filed September 20, 2017

Amended November 3, 2017

Before: Kim McLane Wardlaw, Ronald M. Gould,

and Consuelo M. Callahan, Circuit Judges.

Order;

Opinion by Judge Gould;

Dissent by Judge Callahan

2 BROWNING V. BAKER

SUMMARY*

Habeas Corpus

The panel filed an order in which (1) Judges Wardlaw and

Gould amended their September 20, 2017, majority opinion

in Paul Browning’s appeal from the denial of his habeas

corpus petition; (2) Judge Callahan objected to any basis for

expanding the COA, and stood by her dissent; and (3) the

panel denied a Petition for Panel Rehearing.

In the opinion, the panel affirmed the district court’s

denial of Browning’s habeas corpus petition as to his escape

conviction; reversed the district court’s denial of the petition

as to Browning’s convictions of burglary, robbery with the

use of a deadly weapon, and murder with the use of a deadly

weapon; and remanded for further proceedings.

Browning contended that the prosecutor withheld material

evidence favorable to the defense in violation of his

constitutional rights as described in Brady v. Maryland, 373

U.S. 83 (1963), and presented false and misleading evidence

at trial in violation of his constitutional rights as described in

Napue v. Illinois, 360 U.S. 264 (1959). The panel held that

an officer’s shoeprint observation, a witness’s expectation of

a benefit for his testimony, and the precise description of the

assailant’s hairstyle received from the victim were all

favorable to Browning under Brady. The panel held that

Browning’s Napue claim fails because it was not clearly

established at the time of Supreme Court of Nevada’s

*

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

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

BROWNING V. BAKER 3

decision that a police officer’s knowledge of false or

misleading testimony would be imputed to the prosecution.

For the Brady evidence, except for the witness’s expectation

of a benefit for his testimony, the Supreme Court of Nevada

did not explicitly address whether this evidence was favorable

to Browning. The panel held that had the Supreme Court of

Nevada not viewed the evidence as favorable to the defense,

it would have been an unreasonable application of Supreme

Court precedent. The panel also held that it was an

objectively unreasonable application of Supreme Court

precedent to hold that the Brady materiality standard was not

met here, and therefore concluded that the district court

should have granted habeas relief on Browning’s Brady

claims.

Browning also contended that he was denied his right to

effective assistance of trial counsel due to inadequate pretrial

investigation and preparation. Granting Browning’s motion

to expand the certificate of appealability, and explaining that

the court considers counsel’s conduct as a whole to determine

whether it was constitutionally adequate, the panel wrote that

the district court erred by limiting the COA to particular

“claims” that counsel’s failure to investigate particular

avenues of evidence were deficient. The panel held that

Browning’s trial counsel unreasonably failed to investigate

Browning’s case, and that the Supreme Court of Nevada

unreasonably concluded that Browning failed to prove just

that. The panel amended the opinion to state that because

Browning’s ineffective of assistance of counsel claims

succeed on other grounds, it need not address other alleged

deficiencies argued by Browning in support of an expansion

of the COA. The panel held that the Supreme Court of

Nevada’s conclusion that any deficient performance did not

prejudice Browning was objectively unreasonable.

4 BROWNING V. BAKER

The panel concluded that Browning is entitled to a writ of

habeas corpus with respect to his convictions of burglary,

robbery with the use of a deadly weapon, and murder with the

use of a deadly weapon. The panel wrote that Browning is

not entitled to relief as to his escape conviction because he

offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a

meaningful application of the deferential standard of review

under AEDPA compels the conclusion that the Nevada

Supreme Court was not objectively unreasonable in rejecting

Browning’s ineffective assistance of counsel claim as well as

his claims under Brady and Napue.

COUNSEL

Timothy K. Ford (argued) and Tiffany Cartwright,

MacDonald Hoague & Bayless, Seattle, Washington; Mark

A. Larrañaga and Jacqueline K. Walsh, Walsh & Larrañaga,

Seattle, Washington; for Petitioner-Appellant.

Victor-Hugo Schulze II (argued), Senior Deputy Attorney

General; Thom Gover, Chief Deputy Attorney General;

Adam Paul Laxalt, Attorney General; Office of the Attorney

General, Las Vegas, Nevada; for Respondents-Appellees.

Maureen P. Alger and Lori R. Mason, Cooley LLP, Palo Alto,

California; Reed A. Smith, Cooley LLP, New York, New

York; for Amicus Curiae The Innocence Network.

BROWNING V. BAKER 5

ORDER

Judges Wardlaw and Gould AMEND their majority

opinion in the above captioned case filed September 20, 2017

as follows:

The paragraph on page 55 of the slip opinion that begins

with the sentence <Finally, Browning lists in a footnote of his

brief a litany of other asserted deficiencies in Pike’s

representation.> shall be deleted in its entirety and replaced

with the following language:

<Finally, in arguing for an expansion of the COA,

Browning lists a number of other alleged deficiencies in

Pike’s representation. Because we find that Browning’s

ineffective assistance of counsel claim succeeds on other

grounds, we do not here assess these other alleged

deficiencies.>

Existing footnote 19 shall be inserted in its entirety after

<Pike’s representation.> in the above-inserted text.

Judge Callahan objects to any basis for expanding the

COA, does not concur in amending the majority opinion, and

stands by her dissent.

Judges Wardlaw, Gould, and Callahan vote to deny the

Petition for Panel Rehearing.

The Petition for Panel Rehearing is DENIED. No further

petitions for panel rehearing or rehearing en banc will be

accepted.

IT IS SO ORDERED.

6 BROWNING V. BAKER

OPINION

GOULD, Circuit Judge:

Nevada state prisoner Paul Browning appeals the district

court’s denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2254. In 1986, a Nevada jury found Browning

guilty of four crimes involving the robbery and murder of

Hugo Elsen in a Las Vegas jewelry store. The jury sentenced

Browning to death.

In his habeas corpus petition, Browning challenges his

convictions. He asserts that he is entitled to habeas relief on

two grounds: prosecutorial misconduct and ineffective

assistance of trial counsel (“IAC”). Browning contends that

the prosecutor in his case withheld material evidence

favorable to the defense and presented false and misleading

evidence at trial. He also contends that his trial counsel’s

pretrial investigation and preparation were constitutionally

inadequate. The Supreme Court of Nevada previously

rejected these claims.

Under this procedural posture, a federal court’s role is

limited. Our role is only “to guard against extreme

malfunctions in the state criminal justice systems.” Davis v.

Ayala, 135 S. Ct. 2187, 2202 (2015) (internal quotation marks

omitted). In Paul Browning’s case, a mixture of disturbing

prosecutorial misconduct and woefully inadequate assistance

of counsel produced just that. Because the Supreme Court of

Nevada unreasonably applied clearly established Supreme

Court precedent in denying some of Browning’s claims, we

reverse the district court’s denial of habeas relief and remand

for further proceedings.

BROWNING V. BAKER 7

I

We start with the factual background: Between 4:00 p.m.

and 4:30 p.m. on November 8, 1985, Hugo Elsen was stabbed

to death during a robbery of the jewelry store he operated

with his wife, Josy Elsen. Soon after this brutal murder,

police officers arrested Paul Browning as the primary suspect.

Browning was staying at the Normandy Motel, located a few

blocks from the Elsens’ store. The state charged Browning

with (1) burglary, (2) robbery with the use of a deadly

weapon, (3) murder with the use of a deadly weapon, and

(4) escape. Because the public defenders’ office was

representing a potential witness in Browning’s case, the court

appointed former Clark County prosecutor Randall Pike to

represent Browning. At the time of his appointment, Pike had

been practicing as a defense attorney for less than a year. He

represented in a state habeas proceeding that Browning may

have been his first capital defendant.1

Browning pleaded not guilty. The court scheduled trial

for March 3, 1986. A week before that date, the prosecution

requested a continuance, explaining that it was not prepared

to begin trial because someone in its office had written the

wrong trial date in the case file. Over the defense’s objection,

the court granted the continuance. Because of the delay,

Browning sought dismissal of his case from the Supreme

Court of Nevada and federal court. He was unsuccessful. In

the meantime, Pike lost contact with Browning’s girlfriend,

Marsha Gaylord—an essential witness for Browning’s trial

defense, according to Pike. Trial commenced on December

9, 1986, with Gaylord still unreachable.

1

In contrast, Pike had prosecuted four death penalty cases in his three

years working for the Clark County district attorney.

8 BROWNING V. BAKER

A

The prosecution’s first witness was Josy Elsen, the spouse

of the victim. Josy testified that in the late afternoon of

November 8, 1985, she was napping in a back room of the

jewelry store when she heard commotion in the showroom.

She awoke, entered the showroom, and saw a black man with

a blue cap holding a knife and kneeling over Hugo. Hugo and

the assailant were in the opposite corner of the room, and a

showcase stood between them and Josy. All Josy could see

was the side of the assailant’s head and hair that “puffed” out

of the back of his cap. Josy at once ran through the back door

of the jewelry store, knocked on the window of an office next

door, and asked the occupants to call the police. Debra Coe,

an employee in that office, then accompanied Josy back into

the jewelry store through the back entrance; victim Hugo was

lying in the same corner in a pool of blood, but the assailant

was gone. Later that night, police brought spouse Josy to a

station, where she positively identified many pieces of

jewelry as coming from her store. At trial, Josy identified a

picture of a blue hat with the word “Hollywood” written on

the front as the one she saw the assailant wearing in the

showroom.

Josy testified that in December 1985, a month after

Hugo’s murder, police called her back to the station and

presented her with a photographic lineup of twelve black

men. The officers placed Browning’s picture—taken in

November 1985—in the “#5” position. According to an

officer’s report, Josy “immediately” explained to the officers

that she thought she would not be able to identify the

assailant because “she only saw him for a very slight moment

from the side.” Nonetheless, Josy examined the photos and

stated that the men in photos #1, #6, and #11 had hair

BROWNING V. BAKER 9

“somewhat like” the assailant’s. She did not then indicate

any recognition of Browning’s photo. Yet at trial, when Josy

was asked to identify the man who had killed Hugo, she said

that, although she had a limited view of the assailant, she was

certain that it was Browning.

The prosecution also called a business neighbor and

witness, Debra Coe. Coe testified that when Josy Elsen

frantically arrived at Coe’s office, Coe ran to the front

window to see if she could see anyone leaving the Elsens’

store. Coe saw a man run by her office from the direction of

the jewelry shop, but later that day told the officers that the

man had not come out of the Elsens’ store and instead “must

have run past it.” She told the officers that it was “hard for

[her] to see how he could’ve come out of the door and was

running at the angles he was at.” She initially told the

officers that the man she saw was white, but in a later

interview the same day said he was “definitely black.” In the

interview, Coe stated, “when I see a black person, that they

all look the same.” At trial, Coe described the man as black,

about six feet tall and 27 years old, with a mustache and hair

sticking out about an inch beyond a blue cap. She also said

he was wearing Levi’s and a dark blue jacket. When asked at

trial if she truly believed that all black people “look the

same,” Coe said she did not. Coe admitted, however, that she

did not “really know any black persons personally.”

Coe testified that later on the evening of November 8, an

officer asked her to accompany him around the corner to

“identify the man that they had picked up.” Coe obliged, and

a minute or two later, an officer pulled up in a police vehicle.

The police first showed her someone whom Coe stated was

“definitely not” the man she had seen. The officers then

presented Browning, who was shirtless and in handcuffs.

10 BROWNING V. BAKER

Browning had a large Afro-style haircut. Coe indicated to the

officers that she “thought” Browning was the person she had

seen running by her office, but she “would have been able to

identify him better if he had the hat on and the jacket.”

According to Coe, during the showup, Browning’s hair was

“pressed down” as if he had been wearing a hat.

At trial, Coe testified that she was now “sure” Browning

was the man she had seen running by her office on November

8, 1985. When Pike asked her how, a year after her equivocal

identification on the night of the crime, she was so sure that

it was Browning that she had seen, Coe stated that she had

“had time to think about it.” Coe also identified the blue

“Hollywood” hat as the one worn by the man who ran by her

office.

The prosecution also called Charles Woods, who in 1985

operated a jewelry store three doors down from the Elsens’

store. Woods was standing outside his store with a friend

around 4:30 p.m. when he saw a man jogging towards him.

The man was not holding anything, and had no blood on him.

The man passed Woods within touching distance. Woods

told police that the man he saw was about six-feet tall, slim,

muscular, about 180 pounds, and was wearing dark pants, a

light-colored shirt, and a “darker color” hat. When shown a

picture of the Hollywood hat at trial, Woods said that it was

not the hat he saw the man wearing, which was more of a

“beret sort of thing.”

Woods testified that the officers at the scene asked him to

join Coe at the nearby corner to “stick around and identify”

a suspect. When police presented Woods with a shirtless and

handcuffed Browning, Woods identified Browning as the

man who ran by Woods earlier that day.

BROWNING V. BAKER 11

The prosecution then called Randy Wolfe. Randy and his

wife, Vanessa Wolfe, lived in the same motel where

Browning was staying. Randy testified that between

4:00 p.m. and 4:30 p.m. on November 8, 1985, he was

working on his landlady’s car when Browning yelled his

name from the motel’s upper level. Randy went upstairs and

found Browning in the Wolfes’ apartment sitting on the bed

and wearing a tan windbreaker and the Hollywood hat.

Jewelry had been dumped on the bed. According to Randy

Wolfe, Browning told Randy that he had just robbed a

jewelry store and thought he had killed someone. Browning

also told Randy that he planned to use the jewelry to get

Gaylord out of jail. Randy told Browning that he wanted

nothing to do with the murder, and was going to go finish

working on his landlady’s car and then get some heroin.

Browning asked if Randy would get some heroin for him too.

On his way down the stairs, Randy encountered Vanessa,

whom he instructed to keep Browning “cool” while Randy

found the police. Randy then located the crime scene and led

several officers back to his apartment. Randy testified that

when the officers got there, they promptly arrested Browning,

and that after they removed Browning from the apartment,

Randy found a cup under his sink filled with additional

jewelry.

Randy Wolfe made several admissions during his

testimony that bore on his credibility. He admitted that he

and Vanessa were addicted to heroin and cocaine, and that he

would break into cars to support their habits. He had prior

convictions for selling a controlled substance and prison

escape. He also admitted that he had kept some of the

jewelry he claimed he found under his sink, and lied during

Browning’s preliminary hearing by stating that he did not

keep any of it.

12 BROWNING V. BAKER

Before the time of Browning’s trial, Randy had been

charged with possession of stolen property, a charge

unrelated to the Elsens’ stolen jewelry. Prior to Randy’s

testimony at trial in Browning’s case, the state permitted

Randy to plead to a lesser charge of attempted possession of

stolen property, for which he faced one to five years in

prison. Despite Randy Wolfe’s failure to appear in court

almost thirty times in the past, he was released on his own

recognizance before Browning’s trial. Randy Wolfe testified,

however, that he had not received “anything” for his

testimony against Browning, and that no one had promised

that his sentence might be “diminished” if he testified. The

prosecutor in Browning’s case, Daniel Seaton, was not the

prosecutor in Randy’s case.

The prosecution next called Vanessa Wolfe. Around

1977, Vanessa and Gaylord, Browning’s girlfriend at the time

of the murder, had lived in southern California, where they

ran con games and “bilk[ed] people out of their money.” At

the time of Browning’s trial, Vanessa worked as a prostitute

in Las Vegas. On the afternoon of November 8, 1985,

Vanessa was bringing a client to the Wolfes’ apartment when

she encountered Randy on the stairs. Randy told Vanessa

about what Browning had done, and that Browning was going

to take Vanessa hostage if Randy called the police. Vanessa

then entered the apartment. Browning was inside, shaking

water off of a knife. The Hollywood hat and tan windbreaker

were on the floor. Browning instructed Vanessa to throw the

knife and hat on the roof, but instead she put the knife in a

pizza box under the stairs and threw the hat in a dumpster.

Police arrived soon after.

Officer David Radcliffe also testified for the prosecution.

He said that he arrived at the Elsens’ store to find Hugo Elsen

BROWNING V. BAKER 13

conscious, but in an “extremely serious” condition. Hugo

told Radcliffe that a black man wearing a blue baseball cap

had stabbed him. Radcliffe then joined some officers

standing outside of the storefront, and soon after, Randy

Wolfe approached him. Radcliffe had known Randy for

several years because Randy was a regular narcotics user.

Randy led Radcliffe and several other officers to Randy’s

apartment, which the officers forcibly entered. Inside, they

found Browning sitting on the corner of the bed. Pieces of

jewelry were scattered along the floor on the opposite side of

the room from the bed.

The prosecution also called several forensics specialists

to testify about evidence at the crime scene. Identification

specialist David Horn testified that three of the showcase

counters in the store had been “disturbed,” and that the

merchant-side sliding glass of one of the showcases had been

broken. Horn lifted “approximately twenty some odd”

fingerprints from the scene. Two were most relevant: one

from the top glass of one of the counters, and another from a

fragment of the counter’s broken sliding-glass door. A

different fingerprint examiner concluded that these two prints

matched Browning’s.

Horn also testified that he observed bloody tennis shoe-

style shoeprints leading away from the corner where Hugo

was lying and towards the store’s front door. After leaving

the scene, Horn compared the shoeprints to the loafers

Browning was wearing when he was arrested; they did not

match. Horn testified that paramedics and off-duty officers

often wear tennis shoes at crime scenes, so he did not think

any further investigation into the source of the shoeprints was

necessary.

14 BROWNING V. BAKER

State criminalist Minoru Aoki testified that Hugo had

Type B blood. Blood had been found on the tan jacket that

was lying on the floor in the Wolfes’ apartment, and it too

was type B. Aoki did not test Randy Wolfe or Vanessa

Wolfe’s blood type.

Pathologist Giles Green testified that the knife recovered

from the pizza box under the stairs at the Normandy Motel

was “consistent” with the wound configurations in Hugo’s

body, but “nothing about that knife t[old him] that the knife

made those wounds.”

Browning’s trial counsel, Randall Pike, called three

witnesses. First was Bradley Hoffman, who operated a store

two doors down from the Elsens’ store. Hoffman testified

that around 4:00 p.m. on the day of the crime, he saw a man

walking down the street towards the Elsens’ store. The man

was Cuban, “probably five seven, slight build,” and wearing

Levi’s jeans, the shirt that Hoffman vaguely recalled as plaid,

and a blue baseball cap. Later that night, officers brought

Hoffman to the showup with Coe and Woods, and presented

him with a shirtless Browning. Hoffman stated that

Browning’s hair, a “medium sized Afro,” did not appear as

though Browning had recently been wearing a hat. He also

stated at trial that the Hollywood hat was not the one worn by

the man he saw walking towards the Elsens’ store.

Pike also called Officer Gregory Branon, who testified

that he was “one of the first two officers” to arrive at the

scene. Branon received a description of the suspect: a “black

male, adult in his late twenties, wearing a blue baseball cap,

blue windbreaker-type jacket, blue Levi’s[,] . . . medium

complexioned, bore a mustache and what was described as a

BROWNING V. BAKER 15

shoulder length J[h]eri-type curl.” Pike did not ask Branon

who gave him that description.

Last, Pike called Annie Yates—a hair stylist—who

testified to the difference between a Jheri Curl (the assailant’s

hairstyle as described to Officer Branon), and an Afro

(Browning’s hairstyle on November 8, 1985). Yates stated

that a Jheri Curl requires the use of chemicals, whereas an

Afro does not. Pike presented Yates with the twelve-person

photographic array previously shown to Josy Elsen, which

had Browning at position #5. Yates stated that pictures #1,

#2, #4, and #10 had Jheri Curls.

In his closing, Seaton laid out his theory: Browning

robbed the jewelry store to bail Gaylord out of jail because he

relied on her prostitution income to feed his heroin addition.

Seaton’s closing argument was incendiary, but Pike rarely

objected. Seaton began by characterizing the presumption of

innocence as follows:

Now we are talking about that wonderful

constitutional element called the presumption

of innocence, we are now talking about

piercing that veil, dropping that facade

because, in fact, as a person sits in a

courtroom he may not be innocent. He may

be guilty.

[Browning] has the presumption of innocence.

And, of course, it is one when his guilt is

shown that the farce of that presumption is

known and it’s been done in this case.

16 BROWNING V. BAKER

Seaton gave the following description of Browning’s murder

of Hugo Elsen:

[Browning, t]his man whose girlfriend

prostituted for him so he could get drugs,

money to get drugs, this man who took heroin,

he wanted Randy Wolfe to get him to cop

some heroin for him after the murder. He shot

the life of Hugo Elsen right up his arm.

That’s what he was doing that day. That’s

what we have here.

Seaton also described Josy Elsen’s identification of Browning

at trial as “as good as you can ask for.” Anticipating that Pike

would argue that Browning’s hair on the night of the murder

(an Afro) did not match the assailant’s hairstyle as described

to Officer Branon (a Jheri Curl), Seaton explained that

Officer Branon received the description from “some white

person” who did not understand “the true definition” of a

Jheri Curl. Seaton concluded by saying that it was the jury’s

“duty to go out, decide that and come back in here and tell

[Browning] just exactly that, that he’s the one that has to pay

for these crimes.”

Pike’s closing argument set forth a theory that the

Wolfes’ friend, a Cuban man, committed the robbery-murder,

and the Wolfes were now framing Browning.

BROWNING V. BAKER 17

The jury found Browning guilty on all four counts2 and

sentenced him to death. Browning directly appealed to the

Supreme Court of Nevada, which affirmed. Browning v.

State, 757 P.2d 351 (Nev. 1988).

B

Browning filed a petition for a writ of habeas corpus in

Nevada state district court, arguing in relevant part that

Seaton had withheld exculpatory evidence from the defense

and that Pike was ineffective by failing to perform an

adequate investigation before trial. The petition included

three new pieces of evidence. First, the state stipulated that

post-conviction DNA analysis had proven that the blood on

the tan windbreaker found in the Wolfes’ apartment did not

belong to Hugo Elsen. Second, a forensics report indicated

that Hugo Elsen’s wounds did not “coherently coincide” with

the knife found in the pizza box under the stairs at the

Normandy Motel. Third, a forensics report suggested that the

bloody shoeprints were too large to belong to Josy Elsen or

Debra Coe.

The Nevada district court held an evidentiary hearing, at

which attorneys Jason Isaacs and Daniel Lamb represented

Browning. Robert Shomer, a forensic psychologist, testified

that Josy Elsen’s identification of Browning as the assailant

was questionable because (1) her in-court identification of

2

The prosecution also presented evidence that once Browning was

brought to the police station on the night of November 8, 1985, he escaped

from the interview room where he was being held. He was caught before

he left the police station building. As explained below, see Section V,

infra, because Browning’s petition provides no basis for challenging his

escape conviction, our analysis focuses only on his robbery- and murder-

related convictions.

18 BROWNING V. BAKER

Browning was 14 months after the incident; (2) the stress of

the moment might have made her memory more vivid, but no

more accurate; (3) the in-court identification was extremely

suggestive because Browning was the sole available

“choice”; (4) cross-racial identifications are unreliable (Josy

is white, Browning is black); and (5) Josy’s observation of

Browning’s picture during the photo array in December 1985

may have implanted Browning’s face in Josy’s memory and

prompted a false in-court identification. Shomer also

criticized Coe’s identification, explaining that (1) the 14-

month gap between Coe’s observations and the trial likely

distorted her memory; (2) Coe initially reported to the police

that the man she saw did not appear to come from the Elsens’

store, and Shomer suggested that Coe probably did not focus

intently on his characteristics; (3) Coe had reported to the

police that the man she saw was white, but one of the

officers’ statements to Coe that the suspect was black might

have impacted Coe’s memory; and (4) given the highly

suggestive procedures of the in-person showup on the night

of November 8, 1985, Coe’s identification was, at best,

equivocal. Finally, Shomer criticized Woods’s identification

because (1) Woods stated that he saw nothing notable about

the man who ran towards him on the afternoon of November

8, 1985, suggesting that Woods did not pay close attention to

the man’s appearance; and (2) the showup was particularly

suggestive in light of the officers’ telling Woods that they had

a suspect whom they wanted Woods to identify.

Browning’s counsel then called Michael Sweedo, a

fingerprint examiner and crime scene analyst, to give his

opinion on the officers’ forensic investigation. Sweedo

testified that Browning’s fingerprints on the showcase glass

could have been the result of Browning leaning over the case.

Sweedo noted that it was unusual that there were no other

BROWNING V. BAKER 19

identifications on the remaining twenty-some latent prints

lifted from the crime scene. Sweedo also said that it was

abnormal that the officers did not investigate the source of the

bloody shoeprints.

Browning’s attorneys then called Pike, Browning’s trial

counsel. Pike told the court that Marsha Gaylord would have

testified to two crucial pieces of evidence that never came out

at trial: (1) Gaylord and Browning had been in the Elsens’

store prior to November 8, 1985, which could have explained

the presence of Browning’s fingerprints in the store; and

(2) the Wolfes had a friend that was of Cuban descent. Pike

could not call Gaylord as a witness, however, because she

“disappeared” after the initial trial continuance. Pike asserted

that he tried to locate Gaylord by using Martin Schopp, his

investigator. Other than Browning himself, Gaylord was the

only person who knew that Browning had been in the Elsens’

store before November 8, 1985.

Pike then described his investigation of Browning’s case.

He explained that although he visited the Elsens’ store after

it was cleaned and reopened to the public, he never went

when it was a crime scene. Pike explained that, to avoid

becoming a witness himself, he had Schopp conduct all

witness interviews. Pike did not have Schopp interview the

Wolfes before trial, despite Pike’s knowing that the Wolfes

were “long time informants.” Pike suggested that any inquiry

into whether the Wolfes were receiving a benefit for their

testimonies would have been futile because, in 1986, plea

bargaining was “informal,” and “basically, there were a lot of

things that were done just with passive agreement.” At some

point prior to trial, Pike was told that the Wolfes had falsely

accused a man named Jerold Morell of assaulting Vanessa

20 BROWNING V. BAKER

with a knife, but Pike could not recall making any attempt to

locate Morell.

Pike did not retain a fingerprint expert because, as a

former prosecutor, he “knew” all of the state’s forensics

witnesses and relied on informal conversations with them.

Pike said that he could trust the state’s main fingerprints

expert to be “straight” with him.

Pike did not conduct any investigation into the source of

the bloody shoeprints, and never authorized any interviews to

determine when the responding officers observed the

shoeprints. He explained that if he investigated the

shoeprints’ source and determined that they belonged to one

of the paramedics, he would not be able to argue that the

shoeprints exculpated Browning as the murderer. Pike

characterized his overall trial strategy as “overcasting a

shadow of doubt, as opposed to proving” Browning’s

innocence.

Before trial, Pike was told that a man named Thomas

Stamps had information suggesting that Randy Wolfe and

another man, Mike Hines, were attempting to sell some of the

jewelry stolen from the Elsens’ store. Pike could not recall

why he did not have Schopp interview Stamps. Pike also

could not recall why he did not instruct Schopp to interview

Martha Haygard (the Wolfes’ landlady), who had seen the

Wolfes with a Cuban individual. Nor could Pike recall why

he had not followed up on Coe’s initial statement to the

police that the man whom she saw running by her office was

white, not black.

Investigator Martin Schopp also testified at the state

habeas hearing. Schopp performed “substantially all the

BROWNING V. BAKER 21

investigative work” for Browning’s defense. Schopp,

however, did not have autonomy—Pike directed all of his

inquiries. While the court appointed Schopp soon after

Browning’s arrest, Schopp was not contacted to perform any

work until five months later, when Browning himself reached

out. Schopp testified that such a significant delay was

unusual and likely allowed evidence to get cold. Pike did not

give Schopp a discovery file until August 1986—ten months

after Browning’s arrest—and the file included only police

reports and a voluntary statement by Randy Wolfe. Pike gave

Schopp no other information to create a foundation for his

investigation. Schopp performed a total of 12 hours of

investigative services for Pike—a number Schopp thought

was low under the circumstances. Pike limited Schopp’s

investigation by denying Schopp’s requests for additional

investigation funds. Schopp and Pike spoke no more than

five times, and each time only briefly.

Shopp explained that after preparing a preliminary

report—which included a statement from Haygard that she

saw the Wolfes wearing “big gold wedding bands” after the

robbery—he felt that there were various other leads to follow.

He requested that Pike permit him to interview the Wolfes

and Thomas Stamps. He also wanted to interview Jerold

Morell, who had told Pike that the Wolfes falsely accused

him of sexually assaulting Vanessa with a knife. (A jury

acquitted Morrell of those accusations.) Pike denied each of

these investigation requests. Pike also never asked Schopp to

interview any police officers or detectives. In Schopp’s

opinion, the investigation into Browning’s case was never

“completed.”

Browning’s state habeas counsel also called prosecutor

Daniel Seaton. Seaton testified that after Browning was

22 BROWNING V. BAKER

convicted of the robbery-murder, Seaton gave Randy Wolfe

two concrete benefits. First, he helped Randy get a

drywalling job. Second, and more importantly, before Randy

was sentenced on his conviction for attempted possession of

stolen property, Seaton spoke to the sentencing judge on

Randy’s behalf. At Randy’s sentencing hearing, the judge

explained that Seaton had told him that Randy was “a witness

in a recent trial,” and in light of Randy’s being “somewhat

helpful” to the prosecution on “several occasions,” Seaton felt

Randy “deserve[d] something positive for doing that.” The

judge later noted that Seaton told him that Randy “more than

fulfilled his obligation” in Browning’s trial “and as a matter

of fact put himself in some jeopardy and deserves something

for it.” In light of Seaton’s statements to the sentencing

judge, the prosecution in Randy’s case withdrew its

recommendation of five years imprisonment. The judge

imposed only probation.

At the state habeas hearing, Seaton testified that he never

promised Randy any benefits in exchange for his testimony

against Browning, and decided to speak to Randy’s

sentencing judge only after Browning was convicted. Seaton

admitted, however, that he had engaged in off-the-record plea

bargaining in the past in at least one other case. Seaton also

admitted that after he learned that the Wolfes kept some of

the Elsens’ stolen jewelry, Seaton did not impound the

jewelry or instruct anyone else to do so. Nor did the state

prosecute the Wolfes with any crime relating to the jewelry

they kept.

Browning’s state habeas counsel also called Officer

Branon. Branon testified that he and another officer were the

first to arrive at the crime scene—before paramedics or other

officers entered the Elsens’ store. Upon arrival, Branon

BROWNING V. BAKER 23

immediately noticed bloody shoeprints on the floor. Branon

encountered Hugo Elsen lying in the corner of the store.

Hugo was scared, but lucid. In Branon’s original report, he

wrote that the assailant had a Jheri Curl-type hairstyle. As

noted above, Branon never explained at Browning’s trial who

gave him that description, and the speaker was not revealed.

During the state habeas hearing, however, Branon explained

that it was victim Hugo Elsen himself who had given the

description. Branon also testified that Hugo did not use the

term “Jheri Curl” when describing the assailant; rather, Hugo

described the assailant’s hair as shoulder length, loosely

curled, and wet. It was Branon—who is black—who first

used the term Jheri Curl to describe the assailant’s hair.

When shown pictures and a video of Browning from the night

of November 8, 1985, Branon stated that Browning’s hair

was a “four inch Afro with braids on top of it,” and could not

be described as a Jheri Curl or shoulder length, loosely

curled, and wet. The revealed testimony about the victim’s

description of the murderer’s hair raised a critical

identification issue.

Finally, Browning himself testified at his state habeas

hearing. He told the court that on November 8, 1985, around

4:00 p.m., he was walking down the street when he saw

Randy Wolfe driving a yellow Datsun. Browning asked

Wolfe for a ride downtown, and as he approached, a Cuban

man—whom Browning knew as Randy’s friend—pushed

Browning out of the way and entered the car. The Cuban

man was wearing both the Hollywood hat and tan jacket

found in the Wolfes’ apartment when Browning was arrested.

Randy told Browning to meet him back at the Wolfes’ motel

room, and then drove off.

24 BROWNING V. BAKER

C

The state district court denied Browning’s habeas petition

on December 7, 2001, and filed its findings of fact and

conclusions of law on October 24, 2002. Browning appealed

to the Supreme Court of Nevada, which on June 10, 2004

affirmed the denial of Browning’s challenge to his

convictions, but reversed the district court’s denial of

Browning’s challenge to his sentence. Browning v. State,

91 P.3d 39 (Nev. 2004). On remand, a jury again sentenced

Browning to death. Browning appealed to the Supreme Court

of Nevada, which affirmed. Browning v. State, 188 P.3d 60

(Nev. 2008). The United States Supreme Court denied a

subsequent petition for a writ of certiorari. Browning v.

Nevada, 556 U.S. 1134 (2009).

While he was being resentenced, Browning filed a

petition for a writ of habeas corpus in the United States

District Court for the District of Nevada. On November 28,

2011, Browning filed his Fifth Amended Petition, the

operative version before our court now. After Browning

abandoned several unexhausted claims, the district court

denied Browning’s petition in full on August 1, 2014. The

district court granted Certificates of Appealability (“COA”)

on the following issues: (1) whether the prosecution’s failure

to produce evidence relating to the bloody shoeprints

constituted a violation of Browning’s rights as described in

Brady v. Maryland, 373 U.S. 83 (1963), and/or Napue v.

Illinois, 360 U.S. 264 (1959); (2) whether evidence

impeaching Randy Wolfe’s credibility was withheld in

violation of Browning’s rights under Brady; and (3) whether

Pike was ineffective in light of his failure to investigate the

source of the bloody shoeprints, Hugo Elsen’s description of

BROWNING V. BAKER 25

the assailant, and the credibility of Browning’s accusers.

Browning timely appealed.3

II

We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), and “review de novo the district court’s dismissal of

a habeas petition.” Runningeagle v. Ryan, 825 F.3d 970, 978

(9th Cir. 2016). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), if a state court adjudicates a

petitioner’s federal law claim on the merits, a federal court

may grant habeas relief only if the state court’s adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).4

3

Browning has moved for expansion of the COA to include three

additional issues. For the reasons set forth below, see Section IV.A, infra,

we GRANT Browning’s motion in part and expand the COA to include

the issue of whether Browning’s trial counsel was ineffective because of

his overall failure to investigate Browning’s case. Browning also seeks

to expand the COA to include: (1) whether the trial court improperly

instructed the jury on the element of deliberation, and (2) whether the

prosecutor’s statements during closing argument violated Browning’s

rights under the Due Process Clause. Because Browning has not “made

a substantial showing of the denial of a constitutional right” for either

issue, we DENY the motion in part as to those claims. 28 U.S.C.

§ 2253(c)(2).

4

As the dissent notes, this deferential AEDPA standard is

occasionally described as allowing habeas relief only when the state

court’s conclusions are so unreasonable that there is no “possibility of fair-

minded disagreement.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). The

existence of cases post-dating AEDPA where the Supreme Court has

granted habeas relief over dissent, however, suggest that this language is

not to be construed as requiring unanimity, or as suggesting that jurists

26 BROWNING V. BAKER

“[A]n unreasonable application of federal law is different

from an incorrect application of federal law.” Williams v.

Taylor, 529 U.S. 362, 410 (2000). “A state court’s decision

can involve an unreasonable application of Federal law if it

either [(1)] correctly identifies the governing rule but then

applies it to a new set of facts in a way that is objectively

unreasonable, or [(2)] extends or fails to extend a clearly

established legal principle to a new context in a way that is

objectively unreasonable.” Hernandez v. Small, 282 F.3d

1132, 1142 (9th Cir. 2002) (internal quotation marks

omitted).

Browning asks that we review some of his claims de novo

rather than with deference to the Supreme Court of Nevada.

He contends that the Supreme Court of Nevada’s rulings were

not on the merits, and that its reasoning was based on

standards contrary to federal law. See 28 U.S.C. § 2254(d).

Because we hold that Browning is entitled to relief based on

an unreasonable application of United States Supreme Court

precedent, we need not, and do not, address whether the

Supreme Court of Nevada’s decisions were on the merits or

contrary to federal law.

III

Under Brady, prosecutors are responsible for disclosing

“evidence that is both favorable to the accused and material

who disagree with a grant of habeas relief are not fair-minded. See, e.g.,

Panetti v. Quarterman, 551 U.S. 930 (2007) (a 5–4 decision holding that

the state court unreasonably applied Ford v Wainright, 477 U.S. 399

(1986)) and Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (a 5–4

decision holding that the state court unreasonably applied clearly

established Supreme Court precedents requiring a sentencing jury in a

capital case to be able to consider all mitigating evidence).

BROWNING V. BAKER 27

either to guilt or to punishment.” United States v. Bagley,

473 U.S. 667, 674 (1985) (internal quotation marks omitted).

The failure to turn over such evidence violates due process.

Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (per curiam).

The prosecutor’s duty to disclose material evidence favorable

to the defense “is applicable even though there has been no

request by the accused, and . . . encompasses impeachment

evidence as well as exculpatory evidence.” Strickler v.

Greene, 527 U.S. 263, 280 (1999) (citation omitted).

Under Napue, convictions obtained through the use of

false testimony also violate due process. 360 U.S. at 269. A

violation occurs whether the prosecutor solicits false

statements or merely allows false testimony to go

uncorrected. Id. The constitutional prohibition applies even

when the testimony is relevant only to a witness’s credibility,

id., and where the testimony misrepresents the truth, see

Miller v. Pate, 386 U.S. 1, 6 (1967) (prosecutor “deliberately

misrepresented the truth” by presenting testimony that shorts

with large reddish-brown stains tested positive for blood,

while leaving out that the stains were made by paint).

For claims under Brady, the prosecutor’s personal

knowledge does not define the limits of constitutional

liability. Brady imposes a duty on prosecutors to learn of

material exculpatory and impeachment evidence in the

possession of state agents, such as police officers. See

Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006)

(“Brady suppression occurs when the government fails to turn

over even evidence that is ‘known only to police investigators

and not to the prosecutor.’” (quoting Kyles v. Whitley,

514 U.S. 419, 438 (1995))).

28 BROWNING V. BAKER

In the Ninth Circuit, the same is true for claims under

Napue. First, in Giglio v. United States, the Supreme Court

held that it would impute to an entire prosecution office one

prosecutor’s knowledge that a government witness’s

testimony was false, even though the prosecutor with

knowledge of the false testimony was not the trial attorney on

the case. 405 U.S. 150, 154 (1972). Then, in Jackson v.

Brown, we applied the same principle to police officers with

knowledge that trial testimony offered by the government was

false, holding that “Napue and Giglio make perfectly clear

that the constitutional prohibition on the ‘knowing’ use of

perjured testimony applies when any of the State’s

representatives would know the testimony was false.”

513 F.3d 1057, 1075 (9th Cir. 2008).

However, the dispositive question on the Napue claim

here is what “clearly established Federal law, as determined

by the Supreme Court of the United States,” says on the issue.

See 28 U.S.C. § 2254(d)(1). We recently answered that

question. Despite our holding in Jackson, we held in Reis-

Campos v. Biter that “it is not clearly established that a police

officer’s knowledge of false testimony may be attributed to

the prosecution under Napue.” 832 F.3d 968, 977 (9th Cir.

2016).

As the habeas petition in Jackson was filed before

AEDPA’s effective date, Jackson did not directly address

whether there was clearly established Supreme Court

precedent as required by 28 U.S.C. § 2254(d)(1). As such,

Reis-Campos—a case decided under the AEDPA standard—is

controlling on that question. See 832 F.3d at 973.

The district court granted a COA as to whether the

prosecution violated (1) Brady or Napue with respect to

BROWNING V. BAKER 29

Officer Branon’s undisclosed observation of the bloody

shoeprints, and (2) Brady with respect to evidence of an

undisclosed benefit for Randy Wolfe’s testimony. We

expand the COA to include a third claim: whether the

prosecutor violated Brady by not disclosing the actual

description that Hugo Elsen gave to Officer Branon of the

assailant’s hair.5 We first address whether each piece of

evidence was exculpatory, triggering a potential duty to

disclose under Brady, and for the shoeprint evidence, whether

it involved the prosecution’s knowing presentation of

misleading testimony in violation of Napue. We then turn to

materiality.

A

The bloody shoeprints. At trial, Browning argued that the

bloody shoeprints—which did not match the shoes Browning

was wearing when he was arrested—demonstrated that

5

We expand the COA to cover this claim because we conclude that

reasonable jurists could disagree with the district court’s ruling that not

disclosing Hugo’s precise description of the hair did not violate Brady.

See Buck v. Davis, 137 S. Ct. 759, 773 (2017). As we explain in this

opinion, the prosecution’s failure to disclose that evidence was in violation

of Brady.

The state argues that we lack jurisdiction to expand the COA in this

manner because Browning did not explicitly include the hair description

issue in the section of his brief labeled “uncertified issues.” We disagree.

When the content of a brief covers an uncertified issue, “we may treat it

as a request to expand the scope of the certificate of appealability.”

Robertson v. Pichon, 849 F.3d 1173, 1187 (9th Cir. 2017) (quoting

Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008)). Though

Browning did not style his hair-description arguments as a request to

expand the COA, he nonetheless thoroughly discussed the issue. We

construe that discussion as a request to further expand the COA.

30 BROWNING V. BAKER

someone else committed the murder. The prosecution

responded with Officer Horn’s testimony that responding

paramedics and off-duty detectives often wear tennis shoes at

crime scenes, misleadingly suggesting that the shoeprints

came from them. But during the state habeas hearing, Branon

testified that he and Officer Robertson were the first

responders at the store, before the paramedics or other

officers, and that the shoeprints were there when he arrived.

Branon’s observation of the shoeprints was directly contrary

to Horn’s suggestion that paramedics or other officers left the

prints. Had Branon’s observation been disclosed, Browning

could have used that evidence to bolster his contention that

the shoeprints were left by the real killer. This makes

Branon’s observation exculpatory under Brady. See Kyles,

514 U.S. at 441 (undisclosed witness observation did not

match defendant, and so was exculpatory). And, under

Brady, Branon’s knowledge of the shoeprints is imputed to

the government as a whole. See Youngblood, 547 U.S. at

869–70.

Browning contends that the prosecution’s handling of the

shoeprint evidence similarly implicates Napue. He asserts

that Branon’s observation, which was written in Branon’s

original report, made Horn’s testimony that paramedics or

off-duty detectives often wear tennis shoes misleading,

because it suggested a source of the shoeprints that could not

have been true. See Miller, 386 U.S. at 6–7. But there is no

evidence suggesting that the prosecution knew that Horn

misrepresented the truth. And, as we held in Reis-Campos, it

is not clearly established under Supreme Court precedent (and

was not clearly established under Supreme Court precedent

on June 10, 2004, the date of the Supreme Court of Nevada’s

decision rejecting Browning’s Napue claim) that the

prosecution had a duty to learn from Branon about his

BROWNING V. BAKER 31

observation. See 832 F.3d at 977. Browning contends that

the evidence suggests Horn knew that his testimony was

misleading. But this theory runs into the same obstacle: it is

not, and was not on June 10, 2004, clearly established that

Horn’s knowledge would be imputed to the prosecution. The

record before the Supreme Court of Nevada does not suggest

that the prosecution knew that Horn’s testimony was false or

misleading. As a result, Browning has not shown that the

Supreme Court of Nevada unreasonably applied clearly

established Supreme Court precedent in denying his Napue

claim.

Benefit for Randy Wolfe’s Testimony. When Pike learned

that Randy had been allowed to plead guilty in an unrelated

case to a lesser charge of attempted possession of stolen

property, Pike moved for a continuance in Browning’s case

to investigate whether Randy and Seaton had made a deal.

Seaton responded in court: “I can tell the court categorically

. . . there has never been any plea bargaining with Randy

Wolfe regarding this case.” At Browning’s trial, Randy

similarly testified that he had not been promised anything for

his testimony, including any promise of a more lenient

sentence on his recent conviction. But after Browning’s trial,

Seaton spoke with Randy’s sentencing judge on Randy’s

behalf. This led Randy’s prosecutor to withdraw his

recommendation of five years, and the judge to sentence

Randy to only probation. The Supreme Court of Nevada held

that this constituted withholding of impeachment evidence

favorable to Browning at his trial,6 Browning, 91 P.3d at

54–55, and the state does not dispute that conclusion.

6

The Supreme Court of Nevada held that while impeachment

evidence was withheld, that information was not material. Browning,

91 P.3d at 55.

32 BROWNING V. BAKER

While the Supreme Court of Nevada explicitly concluded

that Seaton improperly withheld evidence in this context, it

never specified precisely what evidence the prosecution

should have disclosed. It stated:

[T]he prosecutor withheld information

regarding benefits given to an important

witness for the State, Randy Wolfe. . . . [A]t

th[e] time [of trial], Wolfe was the defendant

in a separate criminal prosecution, and the

prosecutor admitted at the post-conviction

evidentiary hearing that after Browning’s trial

he told the district judge assigned to Wolfe’s

case that Wolfe had helped in prosecuting

Browning . . . . Though the prosecutor

maintained that he acted unilaterally and

never made any deal with Wolfe, this

information still should have been disclosed

to the defense. Under Brady, even if the State

and a witness have not made an explicit

agreement, the State is required to disclose to

the defense any evidence implying an

agreement or an understanding.

Id. (citing Jimenez v. State, 918 P.2d 687, 694–95 (Nev.

1996)). The only way this information could be “evidence

implying an agreement or an understanding” would be if

Randy knew that Seaton was contemplating speaking to

Randy’s sentencing judge. If Randy did not know, then

Seaton’s intentions would have had no impact on Randy’s

motivations to tell the truth, or not, at trial. We therefore read

the Supreme Court of Nevada’s decision as concluding that

Randy knew that Seaton might help reduce his sentence if he

BROWNING V. BAKER 33

testified against Browning.7 It is that piece of

evidence—Randy’s expectation of a potential benefit in

exchange for his testimony—that constituted impeachment

evidence that should have been disclosed to Pike. See, e.g.,

Arizona v. Fulminante, 499 U.S. 279, 300 (1991)

(recognizing that benefits conferred by authorities may

motivate a witness to lie).

Hugo Elsen’s Description of the Killer’s Hair.

Browning’s hairstyle at the time of the robbery was an Afro.

At trial, Officer Branon testified that he received a

description of the suspect at the scene as sporting a “shoulder

length J[h]eri-type curl.” At closing, the prosecution argued

that whoever gave this description to Branon did not know

7

The dissent reasons that this determination by the Supreme Court of

Nevada was “not based on any facts in the record,” and that the Supreme

Court of Nevada therefore “engaged in an unreasonable determination of

the facts” in violation of 28 U.S.C. § 2254(d)(2). But at no point in this

case has the state challenged the Supreme Court of Nevada’s ruling on

that point. We also do not see how it could. The federal habeas statutes

provide a mechanism by which state prisoners can challenge on federal

grounds the authority behind their detention by state officers. They do not

provide a means for federal courts to engage in error correction of state

court rulings that favor defendants. The statutory language makes this

plain: 28 U.S.C. § 2254(d)(2) states that “[a]n application for a writ of

habeas corpus . . . shall not be granted with respect to any claim . . . unless

the adjudication of the claim . . . resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Also, 28 U.S.C. § 2254(e)(1)

states “a determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence.” These

statutory principles are limitations on federal courts’ power to grant

habeas relief. We do not understand how the dissent wrings from these

provisions an affirmative power to rule that a state court erred in doing too

little to justify its detention of a petitioner.

34 BROWNING V. BAKER

the difference between a Jheri Curl and an Afro. But during

the state habeas hearing, Branon testified that the description

he was given did not actually include the words “Jheri Curl.”

Rather, Hugo told him that the assailant’s hair was “shoulder

length,” “loosely curled,” and “wet.” Branon, who is African

American, then interpreted those words to mean a Jheri Curl,

and used that term in his original report.

Neither “Jheri Curl” nor “shoulder length,” “loosely

curled,” and “wet” are descriptions of an Afro. But only

“Jheri Curl” is susceptible to the argument that the speaker

could have seen an Afro and used the wrong term because he

was unfamiliar with African American hairstyles. Had the

prosecution disclosed before trial that victim Hugo Elsen’s

description of his assailant’s hair was not a “shoulder length

J[h]eri-type curl,” but “shoulder length,” “loosely curled,”

and “wet,” Browning could have easily refuted the

prosecution’s argument. This makes the exact words Hugo

used to describe his assailant evidence favorable to the

defense under Brady.8

8

The dissent calls this a “novel view” of Brady. According to the

dissent, our analysis “extends the state’s obligations into the murky zone

of interpretations of otherwise neutral facts.” But facts do not exist in a

vacuum. Their exculpatory value invariably depends on the

interpretations offered, and the theories pressed, by the parties. Consider,

for example, one of the pieces of Brady material in Kyles. 514 U.S. 419.

The prosecution in that case did not disclose to the defense a list of the

cars parked in the parking lot where the victim was killed, a list which did

not include the defendant’s car. Id. at 450. The Supreme Court held that

the list was exculpatory in part because the prosecution “argued to the

jury[] that the killer drove to the lot and left his car there.” Id. Had the

prosecution instead argued that the killer walked to the scene of the crime,

the list of cars would have had less exculpatory value to the defense.

Likewise here, the prosecution’s argument that the speaker did not know

the difference between a Jheri Curl and an Afro affected the exculpatory

BROWNING V. BAKER 35

We hold that Officer Branon’s shoeprint observation,

Randy’s understanding that Seaton was considering speaking

with Randy’s sentencing judge in exchange for Randy’s

testimony against Browning, and the precise hair description

Branon received from Hugo Elsen were all favorable to

Browning under Brady. We also hold that Browning’s Napue

claim fails because it was not clearly established at the time

of the Supreme Court of Nevada’s decision that a police

officer’s knowledge of false or misleading testimony would

be imputed to the prosecution.

For the Brady evidence, except for Randy’s expectation

of a benefit for his testimony, the Supreme Court of Nevada

did not explicitly address whether this evidence was favorable

to Browning. But in light of our above analysis, we hold that

had the Supreme Court of Nevada not viewed the evidence as

favorable to the defense, it would have been an unreasonable

application of Supreme Court precedent.

B

We turn now to materiality as an element of the Brady

claims. Under Brady, evidence is material “if there is a

reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Bagley,

473 U.S. at 682. When there are multiple Brady claims, the

Supreme Court instructs that we consider materiality

“collectively.” Kyles, 514 U.S. at 436. We must imagine that

every piece of suppressed evidence had been disclosed, and

value of Hugo’s precise words. We offer a straightforward application of

clearly established Brady principles, not a “novel interpretation.”

36 BROWNING V. BAKER

then ask whether, assuming those disclosures, there is a

reasonable probability that the jury would have reached a

different result. See, e.g., Turner v. United States, 137 S. Ct.

1885, 1893 (2017); Cone v. Bell, 556 U.S. 449, 473–74

(2009).

Applying this procedure to the facts before us, and

incorporating AEDPA deference, we address the following

question: Imagine that the prosecution had disclosed (1) that

Officer Branon observed that the shoeprints existed before

paramedics or other officers arrived; (2) that Randy expected

a benefit for his testimony; and (3) that Hugo Elsen described

the assailant as having shoulder length, loosely curled, and

wet hair, rather than a Jheri Curl. Was it objectively

unreasonable for the Supreme Court of Nevada to conclude

that there was not a reasonable probability that the jury would

have reached a different result?

We conclude that the answer is yes. Officer Branon’s

undisclosed shoeprint observation disproves the prosecution’s

primary rebuttal against Browning’s strongest piece of

evidence that someone else killed Hugo. The undisclosed

evidence of a benefit for Randy’s testimony adds a powerful

reason to disbelieve him and his wife, the prosecution’s most

critical witnesses. And the undisclosed evidence of Hugo’s

exact dying words defeats the prosecution’s central argument

against its probativeness.

Also, the prosecution’s trial evidence was remarkably

weak. Its case relied on flawed identifications and the

Wolfes’ unreliable testimony. And the physical evidence was

just as consistent with Browning having been framed as with

him being the killer.

BROWNING V. BAKER 37

We conclude that it was an objectively unreasonable

application of Supreme Court precedent to hold that the

Brady materiality standard was not met here. Below, we

discuss materiality in more detail, analyzing the relevant

evidence at trial piece-by-piece, with an aim to showing the

probable ultimate effect on the jury’s decision.

The Bloody Shoeprints. Browning’s trial theory was that

someone else killed Hugo Elsen. The shoeprints leading from

Hugo to the front door lent strong support to this theory. But

Officer Horn’s testimony suggesting that paramedics or other

officers could have left the shoeprints gave the jury a reason

to disregard strong evidence raising questions of reasonable

doubt. Had the prosecution disclosed Branon’s observation

about the shoeprints, the source of several bloody shoeprints

would remain a mystery. This means the jury would have

been left with powerful evidence that Browning was not the

killer.

In its briefing, the state responds that Officer Branon’s

observation was not so helpful for Browning’s defense

because the shoeprints could have been made by Josy Elsen

or Debra Coe. But that is pure speculation. The prosecution

had the opportunity to offer at trial evidence that Josy or Coe

made the shoeprints, but either chose not to do so or did not

have such evidence. We cannot now assume such evidence

exists. See Miller-El v. Cockrell, 537 U.S. 322, 345 (2003)

(“Had there been evidence obtainable to contradict and

disprove the testimony offered by petitioner, it cannot be

assumed that the State would have refrained from introducing

it.” (internal quotation marks omitted)). In any event, as the

district court noted, it is unlikely that either Josy or Coe was

the source of the prints because there is no evidence that

either of them went anywhere near the store’s front door after

38 BROWNING V. BAKER

Hugo was stabbed. There are also photos in the trial record

of the shoeprints next to a ruler. Examining the photos as if

we were the jury viewing them as exhibits at trial, the

shoeprints appear to us larger than those of a typical woman’s

shoe.9

At oral argument, counsel for the state

proffered a different theory. He asserted that there

were in fact two sets of prints: one set around

Hugo Elsen’s body, and another leading from the body

to the front door. See Oral Arg., Browning v. Baker,

No. 15-99002 (Mar. 16, 2017) at 23:00–23:47,

https://www.youtube.com/watch?v=8va4fhOsWZ8. Counsel

argued that the shoeprints Officer Branon referred to in his

testimony were only those immediately surrounding Hugo’s

body, which Josy or Coe may have created while giving aid

to Hugo. Id. at 23:50–24:20. According to his theory, the

other prints—which led from the body to the front

door—were left later by paramedics. Id. at 24:22–24:55. But

the state did not raise this argument in its briefing before this

court (or apparently in any court); it has thus long been

9

In the state habeas proceeding, Browning argued the same point but

with expert testimony. He submitted a report from forensics examiner

Michael Sweedo that stated that the shoeprints were too big to have been

made by the typical woman’s tennis shoe. This evidence was not part of

the original trial record, and we are doubtful that we may consider it in

determining materiality under Brady. Nevertheless, we need not decide

the issue because the Brady violations here were material without

considering post-trial revelations.

BROWNING V. BAKER 39

forfeited. See Harger v. Dep’t of Labor, 569 F.3d 898, 904

n.9 (9th Cir. 2009); Fed. R. App. P. 28(b).10

A final possibility, one the parties do not discuss but that

the jury might have considered, was that Browning made the

shoeprints, but then changed his shoes before being arrested.

But like the theory that Josy or Coe left the prints, there is no

evidence to support this possibility. The prosecution never

found any such shoes in the Wolfes’ or Browning’s

apartments, nor any other shoe that matched the prints.

The bloody shoeprints were strong evidence that

Browning was not the killer. Had the prosecution disclosed

Branon’s observation, that strong evidence would have gone

unrebutted.

Benefit for Randy Wolfe’s Testimony. Randy and Vanessa

Wolfe were the prosecution’s most important witnesses.

They were the original accusers, the source of the alleged

murder knife, and the source of Browning’s alleged

confession. It is fair to say that had the jury not credited the

Wolfes’ testimony, Browning would not have been convicted.

10

Moreover, the record does not support this new theory. Counsel

seemed to derive the theory from the particular words chosen by Officers

Branon and Horn in describing the location of the shoeprints. At the state

habeas hearing, Branon testified that the shoeprints were “near” Hugo,

while Michael Sweedo, reading from Horn’s police report, stated that the

prints led from Hugo’s body to the front door. We are unpersuaded. A

description of shoeprints “near” a body could easily mean shoeprints

leading from that body to another part of the room. The state also presents

no other evidence, such as different tread patterns in the shoeprints, to

support the two-sets theory. And we have already explained why the

evidence does not support Josy or Coe having left any of the shoeprints.

40 BROWNING V. BAKER

The jury had plenty of reasons not to believe the Wolfes.

The Wolfes admitted that they used heroin and cocaine,11 that

Vanessa was a prostitute, and that Randy stole property.

Randy had prior convictions, including a recent conviction

for which he would soon be sentenced. Randy admitted to

keeping some of the stolen jewelry and lying about it at

Browning’s preliminary hearing. Vanessa testified that she

used to “bilk people out of their money.”

Given this mountain of evidence providing potential

reasons to doubt the Wolfes’ credibility, getting just one juror

to change his or her mind about the truth of the Wolfes’

testimony likely would not have required much. See Agurs,

427 U.S. at 113 (“[I]f the verdict is already of questionable

validity, additional evidence of relatively minor importance

might be sufficient to create a reasonable doubt.”).

Evidence suggesting that Randy was expecting leniency

in his sentencing in exchange for his testimony against

Browning could have accomplished this task. And, it could

have done so without being merely cumulative of the

impeachment evidence already in the record. Evidence that

Randy was expecting a benefit for his testimony would have

revealed that the Wolfes had a “direct, personal stake in

[Browning]’s conviction.” Id. at 683. The other

impeachment evidence concerning the Wolfes’ criminal

activity and penchant for lying suggested to the jury that the

Wolfes were untrustworthy. But evidence suggesting that

Randy had a personal stake in Browning’s conviction would

11

The Wolfes’ use of drugs is relevant to their credibility because it

indicates that in the past they engaged in illegal activity. However, that

the Wolfes were physically addicted to drugs is not here relevant to their

credibility. See United States v. Kizer, 569 F.2d 504, 506 (9th Cir. 1978).

BROWNING V. BAKER 41

have shown the jury why the Wolfes would lie in this

particular case. See Maxwell v. Roe, 628 F.3d 486, 510 (9th

Cir. 2010) (“The undisclosed benefits that the informant

received added significantly to the benefits that were

disclosed and certainly would have cast a shadow on the

informant’s credibility. Thus, their suppression was

material.” (internal quotation marks and alterations omitted)).

Such evidence would have been uniquely impeaching, and if

disclosed, may have broken the camel’s back and persuaded

the jury to disbelieve the Wolfes. Without the Wolfes, the

prosecution had no case.12

Hugo Elsen’s Description of the Assailant’s Hair. Had

the prosecution disclosed the precise words Hugo used to

describe his assailant’s hair, the prosecution’s argument that

the source of the description must not have known the

difference between a Jheri Curl and an Afro would have

failed, leaving the jury with no reason to disregard Hugo’s

description. Hugo’s precise description—wet, shoulder

length, and loosely curled—significantly undermines the case

against Browning. The description was markedly different

from Browning’s hair on the day of the murder—an

Afro—and, according to Branon, Hugo was lucid when he

gave it. Moreover, it was unlikely that Hugo was mistaken

about his description in light of Branon’s “meticulous”

12

The dissent contends that, when engaging in this analysis, “our role

is not to reweigh the evidence and make fresh credibility determinations.”

We disagree that this argument is controlling. To determine whether the

jury would have been swayed by additional evidence, we must put

ourselves in the shoes of the jurors and ask whether the same result would

be reached if presented with this new, hypothetical trial record. There is

no way to do that without making fresh credibility determinations,

particularly when the new evidence is impeachment evidence, and is

therefore relevant only because of its tendency to affect credibility.

42 BROWNING V. BAKER

questioning. Hugo also had the closest and most accurate

view of the assailant’s hair, while, as discussed below, every

other eyewitness identification was seriously flawed. Hugo’s

vivid description of a hairstyle so different from Browning’s

presented substantial reason to doubt that Browning was the

one who stabbed Hugo. If the jury no longer had reason to

reject that description, and the jury knew that the description

came from the victim, it would have raised grave doubt about

the prosecution’s theory of the case.

Identifications. The identifications presented at trial were

significantly flawed. Two of the three original positive

identifications were equivocal at best, and the officers’

presentation procedures were textbook examples of

suggestive techniques. See United States v. Wade, 388 U.S.

218, 228 (1967) (“A major factor contributing to the high

incidence of miscarriage of justice from mistaken

identification has been the degree of suggestion inherent in

the manner in which the prosecution presents the suspect to

witnesses for pretrial identification.”).

Josy Elsen saw only the side of the assailant’s head after

waking from a nap. She told officers it was unlikely that she

would be able to identify the assailant because she saw him

only for a moment, and never saw his face. During the photo

lineup, Josy pointed to three photos of men that were not

Browning, saying only that their hair resembled the

assailant’s. While Josy identified Browning at trial, it was

only after seeing Browning at more than a dozen preliminary

BROWNING V. BAKER 43

hearings, and at each he was presented as the accused. Josy’s

identification deserves, at most, minimal weight.13

Coe’s identification was not much better. An officer

presented Coe with Browning—who was shirtless and

handcuffed—and said, “We think we have a suspect. Is this

him?” At this point, Browning’s appearance, the officer’s

question, and the form of the showup rendered the procedures

highly suggestive and any resulting identification of little

evidentiary value. See Stovall v. Denno, 388 U.S. 293, 302

(1967) (“The practice of showing suspects singly to persons

for the purpose of identification, and not as part of a lineup,

has been widely condemned.”), abrogated on other grounds

by Griffith v. Kentucky, 479 U.S. 314 (1987). Coe then said

that she only “thought” Browning was whom she had seen

running by her office. This was despite initially telling police

that the man she saw was white and did not look as if he came

from the Elsens’ store. Coe also told police that “when [she]

see[s] a black person, [] they all look the same,” giving less

reason for confidence in her already uncertain identification.

Coe said at trial that after having had “time to think about it,”

she was sure that it was Browning that she saw. But her in-

court identification says far less than her equivocal

contemporaneous one. Cf. Gilbert v. California, 388 U.S.

13

Browning argues that Josy never positively identified Browning at

trial, and that the state conceded as much during state habeas proceeding.

However, Browning has not provided the Court with any documentation

regarding the state’s supposed concession. The prosecution did

significantly overstate Josy’s identification, saying that she pointed at

Browning and said, “That’s the man who was kneeling over my husband,”

when in fact Josy had merely said that Browning was in the courtroom.

The identification was not, as Prosecutor Seaton maintained, “as good as

you can ask for.” Nevertheless, we agree with the trial court that Josy

identified Browning at trial.

44 BROWNING V. BAKER

263, 272 (1967) (tying admissibility of in-court identification

in part to the constitutionality of a pretrial identification).

Woods gave a positive identification of Browning at the

scene. But police used the same suggestive procedure they

did with Coe. They told Woods that they had a suspect and

then presented Browning wearing only pants, and not as part

of a multi-person lineup. Again, these procedures cast doubt

on the answer they produced.14

Not counting the far-after-the-fact and suggestive in-court

identifications, the only unequivocal identification of

Browning at the time of the crime was Woods’s, in response

to a suggestive, one-person showup. But even crediting

Woods’s identification, it tells us almost nothing about who

killed Hugo Elsen. Woods stated that he saw Browning

jogging towards him (and away from the Elsens’ store),

getting within touching distance. Browning was not carrying

anything and had no blood on him. We do not understand

how Woods’s identification and description of Browning—no

blood on him and nothing in his hands—would support an

inference that Browning had just brutally stabbed a man to

death and stolen 70 pieces of jewelry. The only thing that

Woods’s identification, if credited, proves is that Browning

14

Hoffman was subject to the same suggestive procedure as well, but

curiously, no party at trial squarely asked him whether Browning was the

same man he had seen earlier walking towards the Elsens’ store.

Nevertheless, Hoffman’s trial testimony hints at what his answer would

have been. He testified that the man he saw was wearing a hat, and that

Browning did not appear as though he had recently been wearing a hat.

Hoffman also told police that the man he saw was “Cuban,” supporting

Browning’s defense theory that the Wolfes and their Cuban friend framed

him for the murder.

BROWNING V. BAKER 45

was a few blocks from his residence around 4:30 p.m. on

November 8, 1985.

The Jewelry. When police arrested Browning in the

Wolfes’ apartment, they found many pieces of the stolen

jewelry in the same room as Browning. However, the rest of

the jewelry was turned over later by the Wolfes (except for

the items Randy kept for himself). There was no evidence at

trial that Browning’s fingerprints were on any of the stolen

jewelry. The jewelry evidence is just as consistent with the

Wolfes framing Browning for the murder as it is with

Browning being guilty.

Browning’s Appearance When Arrested. The Elsens,

Coe, Hoffman, and Woods gave somewhat similar

descriptions of the clothes on the man they saw. Josy and

Hugo Elsen both described a man wearing a blue cap. Coe

described a blue cap, Levi’s, and a dark blue jacket. Woods

described dark pants, a light-colored shirt, and a “darker

color” hat—a “beret sort of thing.” Hoffman described

Levi’s, a shirt that he vaguely recalled as plaid, and a blue

baseball cap. When police arrested Browning, he was not

wearing any jacket, any shirt, or any hat. The shoes

Browning was wearing did not match the bloody shoeprints

at the crime scene, and there was no evidence that Browning

had any blood on him. Police recovered a blue hat in the

dumpster outside the Normandy Motel, but again, this

discovery was just as consistent with the Wolfes being

responsible for the murder as Browning.

Fingerprints. Officer Horn lifted “twenty some odd”

fingerprints from the scene, two of which matched

Browning’s prints. One of Browning’s prints was from the

top glass of one of the disturbed counters, and the other was

46 BROWNING V. BAKER

from a fragment of the counter’s broken sliding-glass door.

However, the store was only two blocks from Browning’s

residence, and there was no evidence as to how long the

prints had been present. See Mikes v. Borg, 947 F.2d 353,

361 (9th Cir. 1991) (“[I]n a case resting upon the premise that

the defendant impressed his fingerprints on an object at the

time of the commission of the crime and supported solely by

evidence that the defendant’s fingerprints were found on that

object, the record must contain sufficient evidence . . . that

the defendant touched the object during the commission of the

crime.”). Browning could have visited the store at some

earlier point. Or he could have been involved in the robbery,

while someone else—say Randy Wolfe or the Wolfes’ Cuban

friend—committed the murder. Cf. Wearry, 136 S. Ct. at

1006 (“[T]he evidence the dissent cites suggests, at most, that

someone in Wearry’s group of friends may have committed

the crime, and that Wearry may have been involved in events

related to the murder after it occurred.”).

Steven Scarborough, who examined the fingerprints, also

testified that he compared the approximately twenty

fingerprints lifted from the scene against only Browning’s

and Hugo Elsen’s. This left no evidence about whether any

of the prints matched Randy or Vanessa Wolfe, or any other

possible suspect. Moreover, the prosecution did not present

any evidence that the fingerprints were bloody or that blood

was on the glass. Had Browning stabbed Hugo and then

broken the case and stolen the jewelry as the prosecution

suggested, the fingerprints likely would have had blood on

them.

The fingerprint evidence is probably the strongest

evidence against Browning. But it is by no means decisive,

and we conclude that it is not enough to avoid the otherwise

BROWNING V. BAKER 47

substantial reasonable doubt created by the shoeprint

evidence, the evidence that Randy expected a benefit for his

testimony, and Hugo’s description of the assailant’s hair.15

Blood-Spotted Jacket. Vanessa Wolfe identified a tan

windbreaker found in her apartment as belonging to

Browning. Criminalist Minoru Aoki testified that blood

found on the jacket was type B, the same blood type as Hugo

Elsen’s. The prosecution argued at trial that the jacket proved

that Browning was the killer. But Aoki’s testimony only

showed that the blood on the jacket was the same type as

Hugo Elsen’s (out of four types), not that there was a DNA

match.16 The jacket did not match any of the descriptions

given by the identification witnesses, who all said the jacket

they saw was blue. And even if the killer had worn the

jacket, there was no reason to believe that Browning was

wearing the jacket on November 8, 1985. The jacket was

found in the Wolfes’ apartment, tying it just as easily to

Randy or his Cuban friend as to Browning. The jacket was a

zero-sum for the prosecution’s case.

15

In the state habeas proceeding, Browning presented expert

testimony that it was possible that the print on top of the glass case could

have come from someone leaning over the case, and that the print found

on the shard of glass on the floor behind the counter could be consistent

with someone pushing the glass door open. Defense counsel Pike also

testified at the habeas hearing that he had planned to call Browning’s

girlfriend, Marsha Gaylord, to testify that she had been in the jewelry store

with Browning prior to the day of the crime, but that Pike was unable to

do so because Gaylord had disappeared. As already discussed, we grant

relief without deciding whether such post-trial evidence bears on

materiality under Brady.

16

In the state habeas proceeding, the parties stipulated that post-trial

DNA testing revealed that the blood on the jacket conclusively did not

belong to Hugo Elsen. Again, we do not rely on this post-trial evidence.

48 BROWNING V. BAKER

The Knife. Vanessa Wolfe testified that she saw Browning

shaking water off of a knife in her apartment, and that he

asked her to help get rid of it. But there was no blood or

fingerprints found on the knife, and apart from Vanessa’s

testimony, no other evidence tying the knife to the murder.

Dr. Giles Green testified that Hugo’s wounds could have been

made by the knife, but nothing made him think that that

particular knife was the murder weapon.17 Even if there had

been some physical evidence connecting the knife to the

murder, there was still no such evidence that Browning had

even touched it. Indeed, the knife, like the tan jacket, is just

as consistent with the Wolfes or a friend of theirs committing

the murder as with Browning being the killer. Outside of

Vanessa’s testimony, the knife adds nothing to the

prosecution’s case.

In sum, the jewelry, the knife, and the tan jacket all failed

to tie Browning to the murder. The identifications were

flawed and mostly equivocal. There were endless reasons to

distrust the Wolfes. When arrested, Browning was not

wearing any clothing described by the eyewitnesses, and

there was no evidence that Browning had any blood on him.

All the prosecution had left was the fingerprints. But even

with those, there was no evidence about how long the prints

had been present, and no evidence that the other prints from

the scene did not match either of the Wolfes or their Cuban

friend. The upshot is that the prosecution presented a

fundamentally weak case. Add Officer Branon’s observation

of the shoeprints, thus leaving unanswered significant

17

In the state habeas proceeding, Browning introduced a forensics

report indicating that Hugo Elsen’s wounds “do not coherently coincide”

with the knife found in the Wolfe’s apartment. We do not rely on this

evidence.

BROWNING V. BAKER 49

evidence that someone besides Browning, Josy, Coe, a

paramedic, or a police officer was in the store with Hugo

while he was bleeding; add evidence that the prosecution was

planning to help its best witness in an unrelated sentencing,

suggesting a motive for the witness and his wife to lie at trial;

add an unrebutted closeup description from the victim that

did not match the defendant; and that fundamentally weak

case collapses under the weight of its reasonable doubt.

“Even if the jury—armed with all of this new

evidence—could have voted to convict [Browning], we have

no confidence that it would have done so.” Wearry, 136 S.

Ct. at 1007 (internal quotation marks omitted). And yet

Browning sits on death row. We conclude that there is a

reasonable probability that had the concealed evidence not

been withheld, the jury would have reached a different result.

We also hold that this result is the only objectively

reasonable conclusion. Whatever confidence the Supreme

Court of Nevada found in Browning’s verdict, it was not a

confidence that was objectively reasonable. The strength of

the undisclosed evidence is too great, and the remainder of

the trial record too weak. “‘[F]airness’ cannot be stretched to

the point of calling this a fair trial.” Kyles, 514 U.S. at 454.

The district court should have granted habeas relief on

Browning’s Brady claims.

IV

Browning also asserts that he was denied his right to

effective assistance of trial counsel. To show a violation of

that right, Browning must demonstrate that (1) Pike’s

performance was deficient, and (2) that deficiency prejudiced

Browning. Strickland v. Washington, 466 U.S. 668, 687

(1984). Because AEDPA guides our review, we ask whether

50 BROWNING V. BAKER

the Supreme Court of Nevada “applied Strickland to the facts

of [t]his case in an objectively unreasonable manner.” Bell v.

Cone, 535 U.S. 685, 699 (2002). We conclude that it did.

A

We first clarify the scope of Browning’s IAC claim on

appeal. In its order, the district court limited the COA to

particular “claims” that Pike’s failure to investigate particular

avenues of evidence were deficient. The district court

granted COAs on whether Pike’s failure to investigate (1) the

source of the bloody shoeprint, (2) the Wolfes’ credibility as

witnesses, and/or (3) Hugo Elsen’s actual description of the

assailant to Officer Branon each constituted individual

instances of ineffective assistance of counsel. Limiting the

COA in this manner was error.

Browning is entitled to a COA if he “has made a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (emphasis added). Browning’s

habeas petition asserts that he was denied the constitutional

right of effective trial counsel. This right is a guarantee of

effective counsel in toto—it promises that counsel will

perform reasonably. While an individual claiming IAC “must

identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment,”

Strickland, 466 U.S. at 690, the court considers counsel’s

conduct as a whole to determine whether it was

constitutionally adequate, see, e.g., id; Wong v. Belmontes,

558 U.S. 15, 17 (2009) (“In light of the variety of

circumstances faced by defense counsel and the range of

legitimate decisions regarding how best to represent a

criminal defendant, the performance inquiry necessarily turns

on whether counsel’s assistance was reasonable considering

BROWNING V. BAKER 51

all the circumstances.” (internal quotation marks and

alterations omitted)). The district court distorted this inquiry

by separating Browning’s IAC argument into individual

“claims” of IAC corresponding to particular instances of

Pike’s conduct. This approach was misguided. Rather, the

IAC portion of the COA should have been crafted at a higher

level of generality.

Browning asks us to expand the COA to include whether

he “was denied effective assistance of counsel by his trial

lawyer’s wholesale failure to investigate and prepare for

trial.” Because this articulation more appropriately frames

the constitutional right Browning’s petition contends was

violated, and because—as explained below—he “has made a

substantial showing of the denial” of that right, 28 U.S.C.

§ 2253(c)(2), we GRANT his motion to expand the COA to

include that issue.

B

The first element of an IAC claim requires Browning to

show that his counsel’s performance was “deficient,” or more

precisely, “below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Browning may not rely on

generalities in making this showing; he must point us to

specific instances of Pike’s conduct that demonstrate

incompetent performance. Id. at 690. Because Browning

asserts that Pike failed to adequately investigate the case,

Browning must show that Pike violated his “duty to make

reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Id. at 691.

The ABA Standards for Criminal Justice in effect during

Browning’s trial, to which the Supreme Court has “long . . .

referred as guides to determining what is reasonable,”

52 BROWNING V. BAKER

Wiggins v. Smith, 539 U.S. 510, 524 (2003) (internal

quotation marks omitted), help clarify Pike’s investigatory

obligations. They included “the duty . . . to conduct a prompt

investigation of the circumstances of the case . . . includ[ing]

efforts to secure information in the possession of the

prosecution and law enforcement authorities.” ABA

Standards for Criminal Justice, Standard 4-4.1 (2d ed. 1980);

see also Summerlin v. Schriro, 427 F.3d 623, 629–30 (9th Cir.

2005) (en banc) (“The standards in effect at the time of

Summerlin’s trial [which occurred prior to Browning’s]

clearly described the criminal defense lawyer’s duty to

investigate . . .”).

We examine Pike’s performance in a “highly deferential”

manner, “indulg[ing] a strong presumption that [Pike’s]

conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. Moreover, because

we are operating under AEDPA deference, our review is

“doubly deferential[,] . . . tak[ing] a highly deferential look at

counsel’s performance, through the deferential lens of

§ 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)

(citation and internal quotation marks omitted). Browning

therefore must show more than “a strong case for relief”—he

must demonstrate that “there is no possibility fairminded

jurists could disagree that the state courts decision conflicts

with” Supreme Court precedent. Harrington v. Richter,

562 U.S. 86, 102 (2011). We conclude Browning has made

this showing.

Browning first points us to Pike’s failure to interview

Officer Branon prior to calling Branon to testify at trial. The

Supreme Court of Nevada concluded that this was deficient

performance, Browning, 91 P.3d at 46, and we agree. We

have previously assumed without deciding that “it ordinarily

BROWNING V. BAKER 53

falls below the Strickland level of required competence to put

a witness on the stand without interviewing him.” Jackson v.

Calderon, 211 F.3d 1148, 1160 (9th Cir. 2000). Because the

government does not challenge the Supreme Court of

Nevada’s conclusion on this point, we need not decide

whether failing to interview a witness before calling him to

the stand invariably constitutes objectively unreasonable

representation, and do not disturb the Supreme Court of

Nevada’s conclusion that it did in this case.

Browning also argues that Pike’s failure to investigate the

source of the bloody shoeprints constituted deficient

performance. At the state habeas hearing, Pike explained this

decision by noting that if he attempted to determine the

source of the shoeprints and discovered that the source was

paramedics or responding officers, he would disprove his

own theory that the prints were left by the assailant (who was

someone other than Browning). In other words, Pike

apparently chose not to investigate the source of the

shoeprints because he thought Browning was guilty, and thus

assumed the shoeprints had been left by paramedics and other

responders. The Supreme Court of Nevada held that this was

a reasonable tactic, explaining, “[a]s long as the source of the

prints was unknown, counsel could argue to the jury that the

actual murderer had left them.” Browning, 91 P.3d at 46.

On this issue, the Supreme Court of Nevada unreasonably

applied Strickland’s deficiency standard by blindly accepting

Pike’s strategy. “Counsel cannot justify a failure to

investigate simply by invoking strategy. . . . Under Strickland,

counsel’s investigation must determine strategy, not the other

way around.” Weeden v. Johnson, 854 F.3d 1063, 1070 (9th

Cir. 2017). Pike’s invocation of strategy here is an extreme

instance of strategy determining investigation. If a defense

54 BROWNING V. BAKER

attorney’s “fear of learning the truth” rendered every decision

not to investigate a reasonable tactic, even the most egregious

failures to investigate a client’s case would be protected from

constitutional scrutiny. Even worse, under the Supreme

Court of Nevada’s reasoning, a criminal defendant’s

entitlement to a reasonable investigation would depend on his

attorney’s uninformed, gut-based intuition about his client’s

guilt. In other words, according to the Supreme Court of

Nevada, if your criminal attorney does not believe your story,

your attorney need not investigate your case. The Sixth

Amendment required more in 1986, and still does today.

To be sure, a decision not to investigate particular facts

may be reasonable when the attorney has reason to believe

doing so would reveal inculpatory evidence. In Richter, for

example, the defendant argued that his attorney should have

had a blood expert test a pool of blood from the crime scene

to determine whether it was a mixture of two victims’ blood.

562 U.S. at 108. Such a result would have dramatically

bolstered the defense’s theory. See id. But the test could

have also disproved the defense’s theory by only detecting a

single blood source. See id. The Court explained that the

defendant’s attorney decided not to test the blood because he

“had reason to question the truth of his client’s account” in

light of the client’s prior false statements. Id. Because of the

“serious risk” that the test would expose the defense’s theory

“as an invention,” defense counsel’s decision was reasonable.

Id.

Here, the facts are the opposite. Pike had no reason to

disbelieve Browning’s assertions that he had been framed by

the Wolfes. And more importantly, contrary to Pike’s fears,

there was little risk that investigation into the source of the

shoeprints could damage Browning’s defense theory. Had

BROWNING V. BAKER 55

Pike interviewed Branon before calling him to the stand, Pike

could have asked him whether paramedics or police officers

had entered the store before Branon’s arrival. If Branon’s

answer was “no,” this would have bolstered Browning’s

theory. But even if Branon had responded “yes,” Pike could

have decided then to inquire no further, and still would have

inflicted no harm on his theory. Pike thus had no reason to

fear that any inquiry into the source of the shoeprint would

damage his case. While “[a]n attorney need not pursue an

investigation that would be fruitless, much less one that might

be harmful to the defense,” id. at 108, the reverse is also true:

the obligation to investigate, recognized by Strickland, exists

when there is no reason to believe doing so would be fruitless

or harmful.18

Browning also asserts that Pike’s performance was

deficient because Pike never interviewed the Wolfes before

trial. When asked about this at the state habeas hearing, Pike

explained that he had a policy of never personally

interviewing witnesses to prevent becoming a witness

himself. Rather, he had Martin Schopp conduct all

interviews. The Supreme Court of Nevada concluded that

this was a reasonable strategy. Browning, 91 P.3d at 46.

There can be no doubt that Pike’s policy of not personally

interviewing witnesses was reasonable. But that policy in no

way explains why Pike rejected Schopp’s request to interview

18

Browning offers a different but related argument: the Supreme

Court of Nevada’s conclusion that Pike’s performance was deficient due

to his failure to interview Branon at all requires a holding that Pike was

deficient for not asking Branon about the shoeprints. Because there was

a deficiency in not interviewing Branon at all, we need not decide if any

particular questions were needed to be asked.

56 BROWNING V. BAKER

the Wolfes. Merely articulating a reasonable strategy in

response to a deficiency argument does not end the inquiry

when that strategy does not explain the decision itself. See

Wayne R. Lafave, et al., Criminal Procedure § 11.10(c), at

797 (6th ed. 2016) (“Of course, a decision apparently based

on a tactical judgment is not therefore rendered immune from

an incompetency challenge.”). Pike gave no explanation for

why Schopp could not conduct the interview himself. Yet the

Supreme Court of Nevada concluded that Pike’s no-personal-

interviews strategy explained his decision to not subject the

Wolfes to interviews. That conclusion makes no sense and is

objectively unreasonable.

Finally, in arguing for an expansion of the COA,

Browning lists a number of other alleged deficiencies in

Pike’s representation.19 Because we find that Browning’s

ineffective assistance of counsel claim succeeds on other

grounds, we do not here assess these other alleged

deficiencies.

Our IAC analysis is based on the fundamental obligations

of each attorney, and is not a product of hindsight. See Bell,

535 U.S. at 702. Pike had “countless ways” to investigate

19

These include: Pike’s not offering evidence at trial that Browning

had no blood, cuts, or scrapes on his body when he was arrested; failing

to secure Gaylord’s testimony; not challenging the prosecution’s assertion

that when they entered the Wolfes’ apartment Browning was “surrounded”

by jewelry; not objecting to the prosecutor’s improper closing statements;

not bringing out at trial that Browning had no heroin in his body when he

was arrested; not objecting to Seaton’s claim that the tan jacket had Hugo

Elsen’s blood on it; not presenting evidence demonstrating that Gaylord

was not in jail on November 8, 1985; never obtaining a forensic evaluation

of the knife; and never getting a witness to testify that Randy Wolfe tried

to sell the jewelry.

BROWNING V. BAKER 57

adequately Browning’s case. We do not limit him to just

“one technique or approach.” Richter, 562 U.S. at 106. And

to be sure, Pike’s “poking holes” and “casting shadows”

strategy could have been appropriate under the right

circumstances. See id. at 109 (“To support a defense

argument that the prosecution has not proved its case it

sometimes is better to try to cast pervasive suspicion of doubt

than to strive to prove a certainty that exonerates.”). But to

reach the conclusion that this strategy was reasonable, Pike

first had an obligation “to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691.

Here, Pike did neither. His failure to investigate what

happened on November 8, 1985, “so undermined the proper

functioning of the adversarial process that [Browning’s] trial

cannot be relied on as having produced a just result.” Id. at

686.

We conclude that Pike unreasonably failed to investigate

Browning’s case, and that the Supreme Court of Nevada

unreasonably concluded that Browning failed to prove just

that.

C

We now consider whether the unprofessional deficiencies

identified above prejudiced Browning. Despite its differing

terminology, prejudice in the IAC context mirrors the

materiality standard under Brady. We ask whether there is a

“reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been

different.” Strickland, 466 U.S. at 694; see Gentry v.

Sinclair, 705 F.3d 884, 906 (9th Cir. 2013) (“Brady

materiality and Strickland prejudice are the same.”). To meet

58 BROWNING V. BAKER

this standard, Browning must demonstrate a reasonable

probability that had Pike conducted an adequate investigation,

“at least one juror would have harbored reasonable doubt

about” Browning’s guilt. Buck v. Davis, 137 S. Ct. 759, 776

(2017). Because we defer to the Supreme Court of Nevada’s

decision under AEDPA, our ultimate inquiry is whether that

court’s conclusion that any deficient performance by Pike did

not prejudice Browning was objectively unreasonable. We

conclude that it was.

We have already explained in detail why the

prosecution’s case against Browning was quite weak. In fact,

because the standards of materiality for Brady and Strickland

are the same, our materiality analysis above is in large part

identical to the assessment of the prejudicial effect of Pike’s

ineffective assistance. But while we will not repeat that

analysis here, we cannot just incorporate the materiality

section above in its entirety. The evidence to consider in the

IAC context differs in one important aspect: even if Schopp

had interviewed the Wolfes, there is no reason to believe that

Randy would have made any mention of his expectation that

he would receive leniency in exchange for his testimony

against Browning. After all, Randy stated explicitly at

Browning’s trial that he was not anticipating any such benefit.

We therefore consider, for purposes of assessing prejudice in

the context of Browning’s IAC claim, the following facts that

would have been available to Browning had Pike engaged in

an adequate investigation: (1) that the shoeprints could not

have been created by a paramedic or responding officer, and

(2) that Hugo Elsen described his assailant not as having a

Jheri Curl, but as having shoulder-length, wet, loosely-curled

hair. As discussed above, this evidence would have had a

significant impact on Browning’s case. The bloody

shoeprints were the only evidence left in the store during the

BROWNING V. BAKER 59

period between the robbery and the arrival of the first-

responders, and the evidence does not support that the

shoeprints were left by Josy Elsen or Debra Coe . This leaves

Browning with evidence that someone else—not Browning,

not Josy, not Coe—was in the store with Hugo Elsen before

the arrival of the first-responders. Such evidence would have

been significantly and uniquely exculpatory. Cf. Richter,

562 U.S. at 112 (rejecting petitioner’s prejudice claim

because it “established nothing more than a theoretical

possibility” that petitioner’s defense theory was true);

Pinholster, 563 U.S. at 200–01 (rejecting petitioner’s

prejudice claim because the evidence at issue was duplicative

of other evidence presented to the jury).

And Hugo’s description of his assailant’s hair is powerful

evidence of Browning’s innocence. As stated above, Hugo’s

view and description of the assailant suffers from none of the

flaws inherent in each of the other eyewitness accounts

involved in this case. Officer Branon said it was not possible

that Hugo was mistaken about his description of the assailant.

And Woods’s description of Browning running towards him

on the sidewalk away from the Elsens’ store—with not a drop

of blood on him or a piece of jewelry in his hands—is, if

anything, supportive of Browning’s innocence.

As described in great detail above, the prosecution’s

evidence was far from overwhelming. There is a strong

possibility that had Pike offered the evidence he would have

obtained if he had made a reasonable investigation, at least

one juror would have harbored reasonable doubt. Browning

would have so substantially benefitted from that evidence that

it was objectively unreasonable for the Supreme Court of

Nevada to conclude to the contrary.

60 BROWNING V. BAKER

V

Our conclusions above regarding Browning’s claims

under Brady and Strickland involve only his convictions

relating to the robbery and murder of Hugo Elsen. They do

not affect the validity of his escape conviction. It is not clear

from Browning’s habeas petition whether he challenges his

escape conviction. But even assuming he means to challenge

that conviction, he has identified no exculpatory evidence

withheld that would have affected the jury’s decision to

convict him of escape under Nev. Rev. Stat. § 212.090. And

while Pike’s investigation into Browning’s case was

deficient, Browning points to no evidence that Pike would

have obtained had he reasonably investigated the case that

would have affected the jury’s decision on the escape count.

In sum, while Browning has demonstrated that he is entitled

to habeas relief from his murder- and robbery-related

convictions, he is not entitled to relief from his escape

conviction.

VI

The Supreme Court of Nevada’s denial of Browning’s

claims under Brady and Strickland constituted an

unreasonable application of clearly established Supreme

Court precedent. Browning is entitled to a writ of habeas

corpus with respect to his convictions of burglary, robbery

with the use of a deadly weapon, and murder with the use of

a deadly weapon. Because Browning has offered no reason

to call the validity of his escape conviction into question, he

is not entitled to habeas relief as to that conviction.

BROWNING V. BAKER 61

We AFFIRM in part, REVERSE in part, and

REMAND to the district court for further proceedings

consistent with this decision.

CALLAHAN, Circuit Judge, dissenting in part:

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) “circumscribe[s]” a federal court’s role in

reviewing a habeas claim that was “adjudicated on the merits

in State court proceedings.” Johnson v. Williams, 568 U.S.

289, 298 (2013) (quoting 28 U.S.C. § 2254(d)); Wiggins v.

Smith, 539 U.S. 510, 520 (2003). The Supreme Court has

made clear, time and again, that our task is limited to

deciding whether the state court was “objectively

unreasonable” in its application of federal law, as determined

by the United States Supreme Court, or in its determination

of the facts that were before the trial court. See Lockyear v.

Andrade, 538 U.S. 63, 75 (2003); see also Johnson, 133 S.

Ct. at 1094.

Today’s majority gives short shrift to the Supreme

Court’s admonitions. Along the way, it misapplies Supreme

Court case law, embarks on its own fact-finding mission, and

overrules the jury’s credibility determinations. A meaningful

application of our deferential standard of review under

AEDPA, by contrast, compels the conclusion that the Nevada

Supreme Court was not objectively unreasonable in rejecting

Browning’s Ineffective Assistance of Counsel (“IAC”) claim,

as well as his claims under Brady v. Maryland, 373 U.S. 83

(1963) and Napue v. Illinois, 360 U.S. 264 (1959). I

62 BROWNING V. BAKER

respectfully dissent and would deny Browning’s habeas

petition.1

I. Background

Sometime between 4:00 p.m. and 4:30 p.m. on November

8, 1985, Hugo Elsen was stabbed to death inside his jewelry

store. In the course of the murder, the assailant smashed a

glass display case and stole some 72 pieces of jewelry.

The police immediately identified Browning as a suspect

based on eyewitness accounts and circumstantial evidence.

Three individuals identified Browning at or near the jewelry

store around the time of the murder. Hugo’s wife, Josy,

actually witnessed the murder. She saw a “black man with a

blue cap” raise a knife over Hugo. While she got only a side

view of the attacker, she noted that his hair “was a little bit

puffed out on the bottom” of his cap. That description was

consistent with Browning’s Afro-like hairstyle. Police later

recovered a blue cap with the word “Hollywood” on it in a

dumpster near Browning’s motel room. At trial, Josy

identified that cap as the one worn by the killer. Presented

with a photographic lineup approximately a month after the

murder, which included a photo of Browning, Josy did not

choose Browning’s photo. However, when confronted with

Browning in person at trial, Josy gave a positive identification

of Browning as the assailant.

After Josy witnessed the murder, she ran out the back of

the shop to the business next door and asked someone to call

the police. Debra Coe was in the neighboring office, located

1

I concur in the majority’s rejection of Browning’s Napue claim and

in its affirmance of his escape conviction.

BROWNING V. BAKER 63

just south of the Elsens’ store. When Josy told her that “there

was a man standing over Hugo with a knife,” Coe went to the

front of her office and saw a black man running “south.” Coe

identified the man as wearing a blue cap, a jacket, and Levi’s,

with hair sticking out about an inch from underneath the cap.

At trial, Coe identified the blue “Hollywood” cap—presented

as a state trial exhibit—as the one worn by the person she saw

run by her office.

Later the same day, the police presented Coe with two

men. She stated that the first man was “definitely not” the

person she saw. The police then presented Browning, who

was wearing no cap, shirt, or jacket. Coe said she “thought”

Browning was the person she saw run by her office, but that

she would have been more certain had he been wearing the

cap and jacket. She noted, however, that his hair was

“pressed down” as though he had been wearing a cap. When

asked if she could be “more sure in [her] mind,” Coe said

“[n]o, I wouldn’t think so, no . . . . they all look the same and

that’s just what I think when I see a black person, that they all

look the same.” Coe retracted this statement at trial,

testifying that she did not really think that all black people

looked the same. At trial, Coe positively identified Browning

as the man she saw run by her office.

Charles Woods owned a jewelry store three doors south

of the Elsens’ shop. At around 4:30 p.m., he was standing

outside the front of his store when he saw a black man

jogging toward him. The man was wearing a dark-colored,

“beret”-style cap, a light-colored shirt, and dark pants. Later

that day, the police presented Woods with Browning, as they

did with Coe, and Woods positively identified Browning as

the man he saw. He also positively identified Browning at

trial, though, unlike Josy and Coe, he testified that the hat

64 BROWNING V. BAKER

found near Browning was not the same one worn by

Browning.

Bradley Hoffman owned a store two doors from the

Elsens’. At trial, he testified that he saw a man walk by his

shop and approach the Elsens’ store about 20 minutes before

the robbery-murder. He described the man as a Cuban, with

a slight build, wearing Levi’s jeans and a blue baseball cap.

Like Coe and Woods, Hoffman was presented with Browning

by the police later that day. He stated that Browning was not

the man he saw. He also testified that the blue “Hollywood”

cap recovered by the police, and positively identified by Josy

and Coe, was not the cap worn by the man he saw.

Hugo also identified his assailant. Officer David

Radcliffe was one of the first officers on the scene. He found

Hugo lying in a pool of blood and in an “extremely serious”

condition. Hugo identified his attacker as “a black man

wearing a blue baseball cap.” Officer Gregory Branon also

arrived early on the scene, and he, too, received a description

of the attacker from Hugo. Hugo stated that the suspect was

a “black male” who was “wearing a blue baseball cap, blue

windbreaker-type jacket, blue Levi’s” and who had “shoulder

length” hair. At trial, Branon testified that the description he

received2 included a description of the attacker’s hair as a

“J[h]eri-type curl.”

Besides the eyewitness identifications, two

witnesses—Randy Wolfe and his wife, Vanessa—testified

that Browning confessed to them to committing the crime. At

the time, the Wolfes, as well as Browning and his girlfriend,

2

Branon did not identify Hugo as the source of the description until

post-conviction proceedings some 15 years later.

BROWNING V. BAKER 65

Marcia Gaylord, resided at the Normandy Motel. The two

couples were acquainted. According to Randy, shortly after

the robbery-murder, Randy found Browning in the Wolfes’

room, wearing a blue “Hollywood” cap and surrounded by

some of the stolen jewelry. Browning admitted to Randy to

stealing the jewelry and killing Hugo. Randy then left to get

the police, at which point Vanessa entered the room.

According to Vanessa, she found Browning with a knife, and

saw the “Hollywood” cap on the floor. Like Josy and Coe,

Vanessa identified the state’s trial exhibit as the cap she saw

near Browning.

According to Vanessa, Browning asked her to help him

dispose of the evidence. Vanessa threw his shirt and cap in

a dumpster and hid the knife in a small closet under the

stairway of the motel. The police later recovered the items.

At trial, expert testimony established that the knife was

“consistent” with Hugo’s wounds. Browning was arrested in

the Wolfes’ motel room approximately half an hour after the

murder. Several pieces of the stolen jewelry were in the room

with him, as well as a tan jacket.

The prosecution also presented physical evidence. The

tan jacket had blood on it, which was later identified as Type

B—Hugo’s blood type. Browning’s fingerprints were also

found at the crime scene. Identification Specialist David

Horn testified at trial that several of the showcase counters

had been “disturbed,” and that a glass door on the vendor’s

side of one of the counters was broken. Browning’s prints

were found on top of one of the counters and also on a

fragment from the vendor-side glass door, which is the

employee area.

66 BROWNING V. BAKER

Several pieces of exculpatory evidence were presented at

trial. Horn testified to finding bloody shoeprints leading from

Hugo’s body to the front door of the Elsens’ store. Those

prints were consistent with a tennis shoe and did not match

the shoes Browning was wearing at the time of his arrest.

Browning’s trial counsel, Randall Pike, also called a hairstyle

expert to testify to the difference between a Jheri curl and an

Afro. Branon had testified that the description he received

was of a person with “shoulder-length,” “J[h]eri curl” hair,

whereas Browning had an Afro-style haircut. Pike presented

the hairstylist with the same photographic lineup that the

police showed Josy. She stated that four of the photos

depicted individuals with Jheri curls—none of them was

Browning.

Finally, the jury was presented with substantial evidence

relevant to the Wolfes’ credibility. The jury knew that the

Wolfes were habitual heroin and cocaine users, that Vanessa

was a prostitute, that Randy had several prior convictions,

that Randy was awaiting sentencing in another case, that

Vanessa used to “bilk people out of their money,” that Randy

had kept some of the stolen jewelry, and that Randy had lied

under oath about doing so at a preliminary hearing.

Ultimately, the exculpatory evidence was not enough to

create reasonable doubt in any of the jurors’ minds. A

Nevada jury found Browning guilty of four counts related to

a robbery and murder at a Las Vegas jewelry store and

sentenced him to death. See Browning v. State, 757 P.2d 351

(Nev. 1988).

BROWNING V. BAKER 67

II. Procedural History

In 2004, the Nevada Supreme Court affirmed Browning’s

conviction in a state habeas proceeding. Browning v. State,

91 P.3d 39 (Nev. 2004). Browning argued, as is relevant to

the instant appeal, that the prosecution withheld Brady

material—i.e., exculpatory evidence—and that his trial

counsel, Randall Pike, provided ineffective assistance for

failing to adequately investigate his case. See id. at 45, 54.

As is relevant here, Browning identified three pieces of

allegedly exculpatory evidence in the state court post-

conviction proceedings. First, he argued that the prosecution

should have disclosed Officer Branon’s observation that the

bloody shoeprints at the crime scene predated the arrival of

police and other first responders. Id. at 55. Second, he

argued that the prosecution should have disclosed that the

term “Jheri curl” came from a black police officer (Branon),

rather than the white victim. Id. Third, he claimed that the

prosecution withheld information regarding a benefit given to

Randy Wolfe.3 Id. at 54–55.

Browning also argued that Pike was ineffective for,

among other things, failing to interview Branon. Id. at 46.

Browning reasoned that had Pike done so, he would have

3

Pretrial, the prosecution stipulated that Randy was not promised

anything for his testimony, a point that Randy confirmed on the stand. See

Browning, 91 P.3d at 55; Trial Tr. at 4 (Dec. 8, 1986). During post-

conviction proceedings, Prosecutor Seaton admitted that after Browning’s

trial, he told the judge in a case in which Randy was the defendant that

Randy had helped with Browning’s trial. Id. Randy ended up receiving

probation for attempted possession of stolen property—a conviction that

could have resulted in a 5-year sentence. Seaton also helped Randy secure

a job. Id.

68 BROWNING V. BAKER

discovered that the bloody shoeprints could not have been left

by first responders, and that Hugo’s description of his

attacker’s hair did not include the term “Jheri curl.” Id.

Moreover, Browning argued that Pike should have

interviewed the Wolfes, as they were the prosecution’s key

witnesses. Id.

The Nevada Supreme Court upheld Browning’s guilty

verdict.4 As to Browning’s IAC claim, the court ruled that it

was a reasonable trial strategy to not interview Branon to

discover his knowledge of the bloody shoeprints. Id. at 46.

Pike’s investigation was sufficient to determine that the prints

did not match Browning. Id. The court held that it was a

“reasonable, tactical decision to leave the source of the prints

uncertain.” Id. That way, Pike could argue that the real killer

was the source. Id. Had he investigated further, he may have

discovered that first responders were responsible for the

prints, thereby neutralizing this defense. Id.

As for Pike’s failure to interview the Wolfes, the court

held that it was a reasonable tactic for Pike to delegate

witness interviews to his investigator, lest he interview

witnesses personally and risk becoming a percipient witness

himself. Id. Moreover, Pike’s investigator had “gathered

enough information to permit [Pike] to adequately cross-

examine the Wolfes on their version of events, their drug

usage, their informer status, their lying, and their convictions

and arrests.” Id.

4

The Nevada Supreme Court reversed the district court’s denial of

Browning’s challenge to his sentence of death, Browning, 91 P.3d at 56,

but the jury subsequently reinstated the death sentence on remand and the

Nevada Supreme Court affirmed in Browning v. State, 188 P.3d 60 (Nev.

2008).

BROWNING V. BAKER 69

Finally, while the court concluded that Pike was deficient

for not discovering that “Jheri curl” was Branon’s term and

not Hugo’s, it held that this was not prejudicial because the

“issue of Browning’s hairstyle was extensively explored at

trial.” Id.

As to Browning’s Brady claims, the Nevada Supreme

Court held that the prosecution should have disclosed the

benefit to Randy Wolfe. Id. at 54–55. The court reasoned

that, “[u]nder Brady, even if the State and a witness have not

made an explicit agreement, the State is required to disclose

to the defense any evidence implying agreement or an

understanding.” Id. at 55. Even so, the court ruled that there

was no “reasonable probability of a different result” had the

information been disclosed because Randy’s “credibility was

extensively challenged at trial.” Id. The court also rejected

Browning’s bloody shoeprint Brady claim, noting that it had

already deemed that information to be immaterial in the IAC

context, and that the information was available to the defense

had Pike interviewed Branon. Id. The court similarly

rejected Browning’s Brady claim regarding the hairstyle

evidence, noting that this information was, like the shoeprint

evidence, available to the defense. Id.

Finally, the Nevada Supreme Court considered whether

any errors, considered cumulatively, were prejudicial. Id. at

56. As is relevant here, the court considered Pike’s failure to

discover Hugo’s true description of the killer’s hair, and the

prosecution’s failure to turn over impeachment evidence

regarding Randy Wolfe. Id. It determined that there was no

“reasonable probability” that Browning would not have been

convicted but for the cumulative effect of the errors. Id. The

court reasoned that the “evidence of Browning’s guilt remains

overwhelming.” Id.

70 BROWNING V. BAKER

Browning filed a petition for a writ of habeas corpus in

the United States District Court for the District of Nevada.

On November 28, 2011, Browning filed his Fifth Amended

Petition, which is the petition before us. On August 1, 2014,

the district court denied Browning’s petition. The district

court granted Certificates of Appealability (“COA”) on the

issues of (i) whether the prosecution committed a Brady or

Napue violation by failing to turn over information regarding

the bloody shoeprints, (ii) whether the prosecution committed

a Brady violation by failing to turn over evidence of a benefit

to Randy Wolfe, and (iii) whether Pike provided ineffective

assistance by failing to investigate the source of the bloody

shoeprints, Hugo’s description of his attacker’s hair, and the

Wolfes’ credibility. Browning appealed.

III. Standard of Review

We review the district court’s decision de novo, while

applying AEDPA’s “highly deferential standards” to the last

reasoned state court decision—here, the Nevada Supreme

Court’s 2004 denial of post-conviction relief. Davis v. Ayala,

135 S. Ct. 2187, 2198 (2015); see Reis-Campos v. Biter,

832 F.3d 968, 973 (9th Cir. 2016), cert. denied, 137 S. Ct.

1447 (2017). The state court’s decision receives binding

deference unless it is “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States” at

the time of the state court’s decision, or if it was “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2); Wiggins, 539 U.S. at 520.

Surmounting AEDPA deference is “daunting.” Taylor v.

Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). This is by

BROWNING V. BAKER 71

design out of respect for state court proceedings, and is

“satisfied in relatively few cases.” Id.; see also Williams,

133 S. Ct. at 1094. “[AEDPA] reflects the view that habeas

corpus is a ‘guard against extreme malfunctions in the state

criminal justice systems,’ not a substitute for ordinary error

correction through appeal.” Harrington v. Richter, 562 U.S.

86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S.

307, 332 n.5 (1979) (Stevens, J., concurring)). It is not

enough that a federal court determine, in its “independent

judgment,” that the “state-court decision applied clearly

established federal law erroneously or incorrectly . . . .

Rather, that application must be objectively unreasonable.”

Lockyear, 538 U.S. at, 75–76 (emphasis added and internal

citation omitted). Where “it is possible to read the state

court’s decision in a way that comports with clearly

established federal law . . . we must do so.” Mann v. Ryan,

828 F.3d 1143, 1157–58 (9th Cir. 2016). In other words, we

must uphold a state court determination even if we would

have concluded, on de novo review, that the state court

committed legal error, so long as a fair-minded jurist could

decide otherwise. See Lockyear, 538 U.S. at 75–76. To

overrule a state court’s decision requires that its ultimate

conclusion be so unreasonable that it there is no “possibility

for fairminded disagreement.” Ayala, 135 S. Ct. at 2199

(internal quotation marks omitted). Finally, a federal court

may not review the facts of a case de novo; we must begin

with the “presumption” that the state court’s factual

determinations are correct. Taylor, 366 F.3d at 999.

IV. Browning’s Claims for Relief

Browning’s petition comes down to three pieces of

evidence: the description of the assailant provided by the

victim, Hugo Elsen; bloody shoeprints leading from Hugo’s

72 BROWNING V. BAKER

body; and the benefit received by Randy Wolfe for his

testimony. None of this evidence compels a finding that the

Nevada Supreme Court was objectively unreasonable in

rejecting Browning’s petition for post-conviction relief.

First, Hugo’s description of the killer was presented to the

jury, and the jury knew that the description conflicted with

other eyewitness testimony. That the jury did not know the

term “Jheri curl” was the testifying officer’s and not the

victim’s did not appreciably diminish this conflict. Second,

Pike’s ignorance of the fact that the bloody shoeprints

predated the arrival of first responders did not undercut his

defense that someone other than Browning committed the

murder because he did know that the prints did not match

Browning. And third, the jury was presented with a

cavalcade of impeachment evidence against Randy and

Vanessa Wolfe. That the jury did not know that the

prosecution would later help Randy secure a benefit for his

testimony against Browning—a fact that apparently Randy

did not even know—makes no difference because it was not

reasonably probative of his credibility. And even if it was,

the information was, at most, cumulative.

The weakness of the alleged exculpatory evidence is

enough to reject Browning’s habeas petition on its own. But

it positively blanches when set against the substantial

evidence inculpating Browning: his fingerprints were found

on the vendor’s side of a glass display case, which is off-

limits to customers; he was found by police with some of the

stolen jewelry; numerous eyewitnesses identified him; and he

confessed to the Wolfes.

BROWNING V. BAKER 73

a. Browning Fails to Establish a Brady Violation

Because the Purported Brady Evidence Is Either

Not Exculpatory or Not Material

The Nevada Supreme Court decided Browning’s Brady

claim on the merits. We therefore apply AEDPA’s

deferential standard of review, and may only find a Brady

violation if the state court’s decision was an objectively

unreasonable application of Supreme Court law or an

unreasonable determination of the facts. 28 U.S.C.

§ 2254(d)(1), (2).

Under Brady v. Maryland, the prosecution must disclose

“evidence that is both favorable to the accused and material

either to guilt or to punishment.” United States v. Bagley,

473 U.S. 667, 674 (1985) (internal quotation marks omitted).

“‘Evidence is material within the meaning of Brady when

there is a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have been

different.’” Turner v. United States, 137 S. Ct. 1885, 1893

(2017) (quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)).

“‘A reasonable probability of a different result is one in

which the suppressed evidence undermines confidence in the

outcome of the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S.

419, 434 (1995)).

Thus, to establish a Brady violation, a

defendant must prove: 1) the evidence at issue

is favorable to the accused, either because it is

exculpatory, or because it is impeaching,

2) the evidence was suppressed . . . either

willfully or inadvertently, and 3) prejudice

resulted, meaning there is a reasonable

74 BROWNING V. BAKER

probability that disclosing the evidence to the

defense would have changed the result.

Andrews v. Davis, 798 F.3d 759, 793 (9th Cir. 2015) (internal

quotation marks and adjustments omitted) (citing Strickler v.

Greene, 527 U.S. 263, 281–82 (1999); Bagley, 473 U.S. at

682).

The Nevada Supreme Court reasonably concluded that no

Brady violation occurred because the hairstyle and

impeachment evidence is not exculpatory, and, while the

shoeprint evidence is exculpatory, a fair-minded jurist could

deem it immaterial when viewed collectively with the

abundant evidence of Browning’s guilt.

i. Whether the Purported Brady Material Is

Exculpatory

1. The Hairstyle Evidence

The jury did not know that Officer Branon received a

description of the assailant from the victim himself. Instead,

Branon recounted the description that Hugo gave him,

without identifying its source. He told the jury that

[t]he description we received was black male,

adult in his late twenties, wearing a blue

baseball cap, blue windbreaker-type jacket,

blue Levi’s. He was medium complexioned,

bore a mustache and what was described as a

shoulder length J[h]eri-type curl.

This was a mostly accurate reporting of Hugo’s dying

declaration, except that the term “J[h]eri-type curl” was

BROWNING V. BAKER 75

Branon’s, not Hugo’s. Browning argues that the

prosecution’s failure to turn over the fact that Branon’s

description came from the victim himself, and that the term

“J[h]eri-type curl” was Branon’s, not Hugo’s, was materially

exculpatory.

The Nevada Supreme Court held that no Brady violation

occurred because the exculpatory information was

“reasonably available to the defense.” Browning, 91 P.3d at

55. And, at any rate, the information did not give rise to a

“reasonable probability of a different result.” Browning,

91 P.3d at 46. This was because the “issue of Browning’s

hairstyle was extensively explored at trial.” Id.

The Nevada Supreme Court’s conclusion was not

objectively unreasonable because a fair-minded jurist could

conclude that the hairstyle evidence was not exculpatory, let

alone materially so. See Ayala, 124 S. Ct. at 2199. The

majority concludes otherwise only by asserting a novel view

of Brady that extends the state’s obligations into the murky

zone of interpretations of otherwise neutral facts. That “Jheri

curl” was Branon’s term and not Hugo’s does not help

Browning. The only basis for deeming this information

potentially exculpatory is that Prosecutor Daniel Seaton

leveraged its purported source—Hugo, a white male—to

argue that the speaker probably confused the terms Afro and

Jheri curl. Seaton reasoned that the declarant was just “some

white person” who didn’t “really know[] the true definition

of J[h]eri-curl.” But while it is true that the source of the

term was a black male, the evidence itself is not exculpatory,

and the jury was free to disregard Seaton’s unsubstantiated

speculation as just that.

76 BROWNING V. BAKER

2. The Benefit to Randy Wolfe for His

Testimony

It is undisputed that the prosecution intervened on Randy

Wolfe’s behalf in a separate trial in which Randy was the

defendant after Randy testified in Browning’s trial. Yet the

Nevada Supreme Court determined that the prosecution

should have disclosed the benefit to the defense. Browning,

91 P.3d at 54–55. The court reasoned that “the State is

required to disclose to the defense any evidence implying an

agreement or an understanding.” Id.

It appears that the Nevada Supreme Court’s determination

was not based on any facts in the record. Both Randy and

Prosecutor Seaton stated that there was no plea bargaining

with Randy Wolfe regarding Browning’s case, and Browning

points to nothing in the record showing that Randy expected

a benefit for his testimony. The Nevada Supreme Court

therefore erred in concluding that the evidence was

exculpatory. See Amado v. Gonzalez, 758 F.3d 1119, 1136

(9th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(2)) (state court

made an “unreasonable determination of the facts” where

“[t]here was nothing in the record that could support” its

finding).

The majority correctly notes that the evidence could only

be exculpatory if Randy actually expected a benefit for his

testimony that was not already disclosed. But the Nevada

Supreme Court never made such a finding. Under AEDPA,

we are not entitled to weave facts out of whole cloth just to

make sense of a state court’s determination. See id. Because

nothing in the record shows that any deal was

made—expressly or otherwise—between Seaton and Randy

BROWNING V. BAKER 77

at the time of trial, nothing was suppressed and no Brady

violation occurred.5

3. The Bloody Shoeprint Evidence

The jury knew that the bloody shoeprints leading from

Hugo’s body to the front of the Elsens’ store did not match

the loafers Browning wore at the time of his arrest. But post-

conviction testimony also established that Branon knew that

the shoeprints were present before first responders arrived at

the scene. Under Brady, that knowledge is imputed to the

prosecution as a whole. Kyles, 514 U.S. at 437–38 (the

“individual prosecutor has a duty to learn of any favorable

evidence known to the others acting on the government’s

behalf in the case, including the police”). Yet Specialist Horn

testified that the prints were consistent with tennis shoes, and

noted that first responders often wear tennis shoes at crime

scenes. The jury was therefore left with the impression that

first responders may have left the shoeprints. That was false.

Moreover, the prosecution offered no evidence to suggest that

someone besides the true killer could have been the source of

5

The majority goes to great lengths in an attempt to shore up the

Nevada Supreme Court’s determination. Besides imputing to that court

a finding that it did not make, the majority argues that it doesn’t matter

anyway because federal courts are powerless to review a state court’s

findings that favor the habeas petitioner. But the federal habeas statutes

are only a one-way ratchet with respect to who may seek federal court

review. See 28 U.S.C. § 2254(a). While only a prisoner may invoke a

federal court’s jurisdiction to challenge his detention, nothing in the

habeas statutes prevents a federal court from reviewing the entire

record—including facts that the state court construed as favorable to the

petitioner—once it has properly asserted jurisdiction. The majority cites

no authority for the proposition that a state court’s factual (or legal) errors

are impervious to challenge in such a situation.

78 BROWNING V. BAKER

the prints. Evidence that the shoeprints were present before

the first responders arrived was therefore exculpatory.

ii. Whether the Purported Brady Evidence is

Material

The majority correctly notes that the three Brady claims

must be considered “collectively” to determine whether they

are material. Kyles, 514 U.S. at 436; Turner, 137 S. Ct. at

1895 (considering the “cumulative effect of the withheld

evidence”). Materiality is a determination of whether

disclosure of all pieces of exculpatory evidence, taken

together, gives rise to a “reasonable probability” of a different

outcome. See Cullen v. Pinholster, 563 U.S. 170, 189 (2011).

“A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

The majority concludes that the cumulative effect of three

pieces of evidence—Hugo’s description of his killer’s

hairstyle, the source of the bloody shoeprints, and the benefit

for Randy Wolfe’s testimony—tips the scales in favor of a

finding of materiality.6 The majority’s conclusion is not

compelled either by the evidence or binding Supreme Court

law.

6

Tellingly, the majority arrives at this conclusion only after sua

sponte expanding the certificate of appealability to include an alleged

Brady violation not even raised by Browning on appeal: Hugo’s

description of his assailant’s hairstyle. Considering our obligation to

consider Brady evidence cumulatively to determine its prejudicial effect,

it is unclear whether the majority could have found a Brady violation if the

certificate was limited to the two claims that Browning actually raised

before this court.

BROWNING V. BAKER 79

1. The majority errs by assuming that the benefit to Randy

Wolfe and the hairstyle evidence is Brady material. As

discussed (see Part IV.a.1, 2), both pieces of evidence are

reasonably viewed as not exculpatory and so withholding the

information has no material impact on the case. But even if

the hairstyle evidence could be deemed exculpatory because

its disclosure would have foreclosed Seaton’s argument that

“some white person” confused the terms “Jheri curl” and

“Afro,” it was not unreasonable for the Nevada Supreme

Court to deem it immaterial. The majority concedes that all

of the words Branon used to describe Browning’s hair are

inconsistent with an Afro—“Jheri curl,” “shoulder length,”

“loosely curled,” and “wet.” In other words, Branon’s use of

the term “Jheri curl” did nothing to diminish the conflict in

the eyewitness testimony that was squarely before the jury.7

On the one hand, Hugo described Browning as having wet,

shoulder-length hair. On the other, Josy and Coe described

the person they saw as having short hair that “puffed” or

stuck out the back of a blue cap. That the jury was also

exposed to the term “Jheri curl” does not somehow reconcile

these inconsistent accounts.

The term “Jheri curl” also lost its salience over the course

of the trial. Browning’s counsel presented a hairstyle expert,

Annie Yates, who testified to the difference between a Jheri

curl and an Afro. Pike then showed her a 12-person

photographic array and asked her to identify which persons

7

The majority suggests otherwise, asserting that the “precise words

Hugo used to describe his assailant’s hair” is material under Brady

because Hugo’s description of his assailant as having shoulder-length hair

“was markedly different from Browning’s hair on the day of the

murder—an Afro.” But the defense did know that Hugo’s description

included the term “shoulder-length hair,” and that information was

presented to the jury.

80 BROWNING V. BAKER

had Jheri curls. The array included a picture of Browning.

Yates stated that four of the persons had Jheri curls, none of

whom was Browning. The jury therefore knew that

Browning’s Afro hairstyle was inconsistent with a Jheri curl.

Accordingly, it was not objectively unreasonable for the

Nevada Supreme Court to reject the hairstyle Brady claim

because the hairstyle evidence was not materially

exculpatory.

Undeterred, the majority insists that the information was

critical to the defense because, it reasons, “Jheri curl” is the

only term “susceptible to the argument that the speaker could

have seen an Afro and used the wrong term because he was

unfamiliar with African American hairstyles.” But the fact

that Seaton leveraged the term’s relative obscurity to spin

speculation does not detract from the fact that a fair-minded

juror could reasonably dismiss such conjecture as unfounded.

See Ayala, 135 S. Ct. at 2199. Moreover, Seaton’s argument

makes no sense, because the description Branon

received—and which was before the jury—included the fact

that the assailant’s hair was “shoulder length.” Thus, even if

the jury entertained the far-fetched notion that the speaker

said “Jheri-curl” when he meant “Afro,” it was still faced

with a clear conflict in the evidence: was the assailant’s hair

shoulder-length or in an Afro?

2. As to the bloody shoeprint evidence, the majority

chides the Nevada Supreme Court for engaging in “pure

speculation” for suggesting that the prints were probably left

by Josy or Coe. To be sure, the evidence did not support such

a conclusion. But neither did it suggest otherwise. Under

AEDPA, our review is limited to the original trial record,

Pinholster, 563 U.S. at 181, and nothing in that record

indicates that the shoeprints were not those of Josy or Coe.

BROWNING V. BAKER 81

The majority buries this fundamental rule in a footnote, while

simultaneously embarking on its own fact-finding mission,

concluding that, based on its review of the images of the

shoeprints, “the shoeprints appear to us larger than those of

a typical woman’s shoe.” Tellingly, the majority cites no

expert testimony from the trial record to support its

observation—because there is none. Leading with its chin,

the majority commits double error under AEDPA: not only

does it draw its own evidentiary conclusions, see Taylor,

366 F.3d at 999, but it engages in the very “speculation” for

which it roundly criticizes the Nevada Supreme Court.

Limiting our review to the trial record, as we must, the

shoeprints’ provenance is unknown. What was known at the

time of trial, and what was presented to the jury, was the fact

that the shoeprints did not match Browning. In other words,

they pointed to someone else, which is consistent with the

defense’s theory that a black Cuban associate of the Wolfes

committed the crime. Had the defense known that the prints

predated the arrival of the first responders, its theory would

have been the same. And to the extent the information had

some exculpatory value by eliminating one innocuous

explanation for the prints (i.e., that they were left by first

responders), the record does not compel a conclusion that the

information was material. Indeed, even had the jury known

that first responders were not the source, it could have

reasonably inferred that the prints may have been left by a

person who was not the killer—e.g., Josy, Coe, or someone

else entirely. Either way, while the jury was left speculating

about the prints’ origin, it knew that they did not incriminate

Browning.

3. Finally, even if the shoeprint evidence, viewed in a

vacuum, was significant, it is reasonably deemed immaterial

82 BROWNING V. BAKER

when considered collectively with the evidence inculpating

Browning. We assess the combined effect of both

undisclosed exculpatory evidence and the evidence that was

before the jury as a whole in determining whether there is a

“reasonable probability” that disclosure of Brady material

would have changed the outcome. See Kyles, 514 U.S. at 437

(materiality of Brady evidence is judged according to the “net

effect” of the evidence). As the Nevada Supreme Court

found, substantial evidence inculpated Browning:

• Browning’s fingerprints in the Elsens’ store.

Browning’s fingerprints were found on the disturbed

jewelry counter—both on the top side of the glass and on

a fragment from the broken sliding-glass door on the

vendor’s side of the display case. The majority

minimizes this fact, which it concedes is “probably the

strongest evidence against Browning,” by surmising

various innocent explanations: the fingerprints could have

predated the murder, Browning may have made the prints

during the commission of the crime but someone else

stabbed Hugo, or the other unidentified prints at the scene

could belong to the true killer. But the jury could have

easily drawn a contrary conclusion: the fact that

Browning’s prints were found on a piece of glass broken

in the commission of the robbery-murder, and on the

vendor’s side of the glass case, points to his guilt.

Combined with the other inculpatory evidence (discussed

below), this would not have been an unreasonable

inference. Cf. Mikes v. Borg, 947 F.2d 353, 361 (9th Cir.

1991) (fingerprints alone—absent evidence that they were

made “during the commission of the crime”—are

insufficient evidence of guilt where the government’s

case is “supported solely by evidence that the defendant’s

BROWNING V. BAKER 83

fingerprints were found on th[e] object” (emphasis

added)).

• The eyewitness identifications. Three eyewitnesses—

Josy, Coe, and Woods—identified Browning as the

person they saw in or near the Elsens’ store around the

time of the murder. The majority insists the

identifications were “flawed” because Josy and Coe were

at first equivocal, and the police used a suggestive “show

up” identification procedure at the crime scene. But the

majority ignores Josy’s testimony that the person she saw

raise a knife over her husband wore a blue “Hollywood”

cap with a “puff[]” of hair protruding out the bottom—an

account that fits with Coe’s description of the alleged

assailant, matches Browning’s hairstyle at the time of

his arrest, and is consistent with the fact that the same

blue cap was found in a dumpster outside the Wolfes’

motel room.8 Moreover, Woods’ contemporaneous

identification of Browning was unequivocal. A fair-

minded jurist could therefore reasonably conclude that the

identifications were strong evidence of Browning’s guilt.

• The jewelry in the motel room. Police officers

discovered Browning with some of the stolen jewelry in

the Wolfes’ motel room shortly after the murder. The

majority notes that Browning’s fingerprints were not

found on the stolen jewelry, and the rest of the loot was

later turned over by the Wolfes. But the jury knew these

8

The majority also does not acknowledge the fact that Coe’s

identification is consistent with Browning’s own admission that he was

walking south near the store. However, because Browning testified to this

fact only in post-conviction proceedings, I do not consider it in the Brady

analysis. See Pinholster, 563 U.S. at 181.

84 BROWNING V. BAKER

facts and was entitled to infer guilt from this evidence

when considered with the other evidence inculpating

Browning.

• Browning’s Confession to Randy and Vanessa Wolfe.

The Wolfes’ testimony was devastating to the defense.

According to the Wolfes, Browning confessed to them to

committing the robbery-murder, and then asked Vanessa

to help cover it up.

To be sure, the Wolfes’ testimony was susceptible to

substantial impeachment. They were habitual drug users

with prior convictions and a penchant for lying. But all

of this was presented to the jury. The jury learned that

Randy had a history of illegal drug use, used heroin four

days before testifying, stole property, used his wife’s

prostitution to support his drug use, lied under oath in

Browning’s case about keeping some of the stolen

jewelry, had three prior felony convictions, and was

awaiting sentencing in a pending case. The jury was

entitled to credit the Wolfes’ testimony notwithstanding

that the Wolfes were, by all accounts, thoroughly

unscrupulous characters.

Tellingly, the majority provides no support for the

suggestion that the jury could not have reasonably

believed the Wolfes. Instead, it speculates that perhaps

one more piece of exculpatory evidence—e.g., the source

of the bloody shoeprints—would have tipped the scales

for at least one juror. But our role is not to reweigh the

evidence and make fresh credibility determinations. See

Williams v. Ryan, 623 F.3d 1258, 1266 (9th Cir. 2010).

Because the jury was entitled to credit the Wolfes’

testimony, and because that testimony directly implicated

BROWNING V. BAKER 85

Browning as the murderer, a fair-minded jurist could have

concluded that Browning’s confession to the Wolfes was

strong evidence of his guilt.

• The Knife. Vanessa Wolfe testified that she found

Browning with a knife in her motel room, and that he

asked her to help him dispose of it. If the jury believed

her, this was compelling evidence inculpating Browning.

Moreover, at trial, a prosecution expert testified that

Hugo’s injuries were “consistent” with wounds made by

the knife, though he did not know whether the particular

knife recovered by the police was the actual murder

weapon.9

In sum, the jury had before it substantial evidence

inculpating Browning. The majority concludes otherwise

only by reweighing the evidence: by deciding that the Wolfes

were not credible, dismissing the eyewitness identifications

of Browning as “flawed,” and minimizing the highly

inculpatory fingerprint evidence.10 In so doing, the majority

9

In post-trial proceedings, the defense submitted an affidavit by Dr.

William Chisum in which Dr. Chisum determined that Hugo’s wounds did

not “coherently coincide” with those of the recovered knife. But that

testimony, at most, created a conflict in the evidence. And, at any rate, we

are limited to considering the evidence that was before the trial court. See

Pinholster, 563 U.S. at 181.

10

The jury likely also considered the tan jacket found with Browning

in the Wolfes’ motel room, and which the prosecution identified as the

jacket worn by Browning in a photograph shown to the jury. The jacket

had Type B blood on it, which is the same blood type as Hugo. Prosecutor

Seaton argued in his rebuttal closing argument that this “proves

[Browning’s] guilt probably as much as anything.” Post-conviction

forensic testing revealed, however, that the blood was not Hugo’s.

Seaton’s statement was therefore unfairly prejudicial. Even so, the jury

86 BROWNING V. BAKER

ignores the presumption owed to the Nevada Supreme

Court’s factual determinations and decides for itself the

strength of the case against Browning. See Taylor, 366 F.3d

at 1000. That is error. Considering the limited exculpatory

value of the shoeprint evidence, combined with the

substantial evidence pointing to Browning’s guilt, the jury

could have convicted Browning even if it was presented with

the purported Brady material. The Nevada Supreme Court

was therefore not objectively unreasonable in rejecting

Browning’s Brady claim.

b. Browning’s Ineffective Assistance of Counsel

Claim Fails Because the Nevada Supreme Court

Was Not Objectively Unreasonable in Concluding

That Pike Acted According to a Reasonable Trial

Strategy

To prevail on his IAC claim, Browning must show (i) that

his trial counsel’s assistance fell below an objective standard

of reasonableness, and (ii) that but for his counsel’s deficient

performance, there is a “reasonable probability that . . . the

result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 691–94 (1984);

accord Hinton v. Alabama, 134 S. Ct. 1081, 1087–88 (2014);

Wiggins, 539 U.S. at 521. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)

(internal quotation marks omitted). This is a rigorous

standard. The defendant must show both that “counsel made

errors so serious that counsel was not functioning as the

was not left with the unassailable impression that the blood was, in fact,

Hugo’s. Indeed, Seaton conceded that “[t]here are other people in this

world with B blood.”

BROWNING V. BAKER 87

‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and that the “deficient performance prejudiced

the defense.” Strickland, 466 U.S. at 687.

The Nevada Supreme Court decided Browning’s IAC

claim on the merits, and therefore our review is governed by

AEDPA’s deferential review standard. See Johnson, 133 S.

Ct. at 1094. Because we must also afford counsel’s

performance a presumption of reasonableness, Strickland,

466 U.S. at 690, claims of IAC under AEDPA are “doubly

deferential.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

When applying Strickland in the AEDPA context, the

question is “whether there is a reasonable argument that

counsel satisfied Strickland’s deferential standard, such that

the state court’s rejection of the IAC claim was not an

unreasonable application of Strickland.” Murray v. Schriro,

746 F.3d 418, 465–66 (9th Cir. 2014) (internal quotation

marks and citation omitted).

Browning contends that his trial counsel, Randall Pike,

provided ineffective assistance because he (i) did not

interview Officer Branon and learn about Hugo’s description

of his assailant’s hairstyle, (ii) did not investigate the source

of the bloody shoeprints; and (iii) did not interview the

Wolfes. The Nevada Supreme Court agreed on (i), but not on

(ii) or (iii). As to (i), the Nevada Supreme Court held that the

deficiency was not prejudicial because the hairstyle evidence

was “extensively explored at trial.”11 Browning, 91 P.3d at

46.

11

I agree with the majority that we must review Pike’s performance

as a whole, and that the district court erred in granting COAs only on

specific aspects of Pike’s alleged deficient performance. See 28 U.S.C.

§ 2253(c)(2); see also Wong v. Belmontes, 558 U.S. 15, 17 (2009).

88 BROWNING V. BAKER

i. The Hairstyle Evidence

The Nevada Supreme Court noted that, while Pike’s

performance in not discovering Hugo’s true description of his

assailant’s hair was deficient, the evidentiary conflict was

squarely before the jury. See id. It concluded that, in light of

the conflicting testimony, combined with the “strong

evidence of Browning’s guilt,” there was “no reasonable

probability of a different result if counsel had discovered and

presented the evidence that ‘j[h]eri-curl’ was the officer’s

term, not the victim’s.” Id.

Under AEDPA, our task is to decide whether the Nevada

Supreme Court’s conclusion that Pike’s deficient

performance did not prejudice Browning’s defense was

objectively unreasonable. The majority concludes that it is,

noting that “Hugo’s description of his assailant’s hair is

powerful evidence of Browning’s innocence.” But, as

described in the context of Browning’s Brady claim (see Part

IV.a, supra), the jury did hear Hugo’s description of his

killer’s hair, and so the conflict between his account and the

accounts of Josy and Coe was squarely presented. The only

question is whether there exists a reasonable probability that

the jury would have acquitted Browning had it known that

“Jheri curl” was Branon’s term and not Hugo’s. For the

reasons already discussed, the Nevada Supreme Court’s

determination was not objectively unreasonable because the

hairstyle evidence could reasonably be viewed as not

exculpatory.

ii. The Bloody Shoeprint Evidence

The Nevada Supreme Court held that it was not deficient

performance for Pike to forgo investigating the actual source

BROWNING V. BAKER 89

of the bloody shoeprints. Id. at 46. In the post-conviction

proceeding, Pike explained that his decision was part of a

strategy to “overcast[] a shadow of a doubt,” by pointing to

someone else—a black Cuban associate of the Wolfes—as

the assailant. If he had investigated the true source of the

shoeprints, he may have discovered that someone other than

the killer—e.g., a first responder—was the true source, which

would have undercut this theory. The Nevada Supreme Court

reasoned that “[a]s long as the source of the prints was

unknown, [Pike] could argue to the jury that the actual

murderer had left them.” Browning, 91 P.3d at 46.

The Nevada Supreme Court was not objectively

unreasonable in concluding that Pike executed a reasonable

trial strategy based on his investigation of the evidence. An

attorney’s decision must be “evaluate[d] . . . from counsel’s

perspective at the time” of the decision, thereby

“eliminat[ing] the distorting effects of hindsight.” Strickland,

466 U.S. at 689. At the time of trial, Pike had gathered

enough information to know that the shoeprints did not match

his client. It was an open question whether first responders,

Josy, Coe, or someone else was the source. Interviewing

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