Opposition Brief — Timothy Filson, Warden, et al., Petitioners v. Paul L. Browning
Supreme Court briefApr 27, 2018
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No. 17-1390
CAPITAL CASE
IN THE
Supreme Court of the United States
________
TIMOTHY FILSON, WARDEN, et al.,
Petitioners,
v.
PAUL BROWNING,
Respondent.
__________
On Petition for Writ of Certiorari to
The United States Court of Appeals for the Ninth Circuit
__________
RESPONDENT’S APPENDIX - VOLUME 1
__________
*Timothy K. Ford
MacDONALD HOAGUE & BAYLESS
705 2nd Avenue, Suite 1500
Seattle, WA 98104
(206) 622-1604
Mark A. Larrañaga
Jacqueline K. Walsh
WALSH & LARRAÑAGA
705 2nd Avenue, Suite 501
Seattle, WA 98104
(206) 325-7900
Attorneys for Respondent
*Counsel of Record
i.
RESPONDENT’S APPENDIX
TABLE OF CONTENTS
VOLUME I
Appendix A
Appellant Browning’s Opening Brief,1
United States Court of Appeals for the Ninth Circuit
(September 9, 2015) …………………………………………….
RApp 1
Appendix B
Appellee Warden’s Answering Brief,
United States Court of Appeals for the Ninth Circuit
(February, 2016) ………………………………………………... RApp 109
Appendix C
Appellant Browning’s Reply Brief,
United States Court of Appeals for the Ninth Circuit
(May 16, 2016) …………………………………………………. RApp 189
VOLUME 2
Appendix D
Appellee Warden’s Supplemental Answering Brief
(Regarding Uncertified Issues)
United States Court of Appeals for the Ninth Circuit
(January 26, 2017) ……………………………………………… RApp 260
Appendix E
Appellant Browning’s Supplemental Reply Brief
Regarding Uncertified Issues,
United States Court of Appeals for the Ninth Circuit
(February 9, 2017) ……………………………………………… RApp 289
1
Tables of Authorities and certificates have been removed from all Briefs in this Appendix.
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No. 15-99002
CAPITAL CASE
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL LEWIS BROWNING,
Appellant,
v.
RENEE BAKER, Warden,
Respondent.
APPELLANT’S OPENING BRIEF
Appeal from the United States District Court for the District of Nevada
Hon. Robert C. Jones
TIMOTHY K. FORD, WSBA #5986
MacDONALD HOAGUE & BAYLESS
705 2nd Avenue, Suite 1500
Seattle, WA 98104
(206) 622-1604
MARK A. LARRAÑAGA, WSBA #22715
JACQUELINE K. WALSH, WSBA #21651
WALSH & LARRAÑAGA
705 2nd Avenue, Suite 501
Seattle, WA 98104
(206) 325-7900
ATTORNEYS FOR APPELLANT
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TABLE OF CONTENTS
Page
JURISDICTION ………………………………………………………………… 1
ISSUES PRESENTED ………………………………………………………….. 1
STATEMENT OF THE CASE …………………………………………………. 3
STATEMENT OF FACTS ……………………………………………………… 5
The crime and police investigation …………………..………………….. . 5
The proceedings in state court ………………………...…………………. 12
Pretrial proceedings …………………………..……...…………… 13
The trial ………...……………………………..……….…………. 14
The state postconviction proceedings …………..…...……………. 24
The federal proceedings below ………………………………….………. 26
STANDARD OF REVIEW …………………………………………….……… 27
ARGUMENT ………………………………………………………………….. 29
I.
BROWNING WAS DENIED DUE PROCESS OF LAW WHEN
THE PROSECUTION CONCEALED EXCULPATORY
INFORMATION AND PRESENTED MISLEADING TESTIMONY
REGARDING BLOODY SHOEPRINTS AT THE SCENE, WHICH
WERE NOT BROWNING’S AND LIKELY WERE THE
MURDERER’S ………………………………………………………… 29
A.
The Nevada Supreme Court’s finding that the bloody shoeprints were
present before police and medics entered the crime scene cannot be
disregarded in federal habeas ………………………..…………………. 32
i
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B.
The fact that the bloody shoeprints were present before police and
medics entered the crime scene requires the writ to be granted on
Browning’s Brady claim ……………………………………...………… 33
1.
The Nevada Supreme Court’s statement that the truth about
the shoeprints did not have to be disclosed because it could
have been discovered by the defense was contrary to or an
unreasonable application of clearly established Supreme
Court law ……………………………………………………….… 35
2.
The Nevada Supreme Court’s statement it “already concluded”
the truth about the bloody shoeprints was not “material” under
Brady warrants no deference under 28 U.S.C. §2254(d) ………… 38
a.
The Nevada Supreme Court’s statement was not an
adjudication of the merits of the Brady/materiality issue …. 39
b.
If the Nevada Supreme Court’s statement was an
adjudication of the merits of Brady/materiality, it was
an unreasonable application of clearly established
Supreme Court law on that subject ………………….……. 41
3.
The District Court erroneously deferred to the Nevada Supreme
Court’s disposition of this claim and added error of its own ……. 44
4.
On the entire record of this case, there is at least a reasonable
probability that disclosure of the truth about the bloody
shoeprints would have led to Browning’s acquittal ……………... 46
a.
The evidence of Browning’s guilt presented at trial was
far from overwhelming …………………………………… 47
The identification testimony ………….……………….….. 48
Browning’s alleged admissions ……………………….…. . 50
Browning and the jewelry ……….…….……………….…. 50
The fingerprints in the store …………...….…………..…… 51
ii
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b.
The facts now known provide numerous new reasons to
doubt the reliability of Browning’s conviction …….……… 52
Contrary to what the jury was told, there was no blood or
trace evidence on Browning’s person or clothes …...……… 52
Contrary to what the jury was told, the victim said the
killer’s murderer hair was “loosely curled,” “shoulder
length” and “wet looking,” and none of those phrases fit
Browning ………………………….………………………. 53
Contrary to what the jury was told, the victim’s widow
never identified Browning as the murderer ………………... 54
The state’s two star witnesses, Randall and Vanessa
Wolfe, were police informants who had the jewelry
from the robbery and profited from their testimony
against Browning ……………………..…………………… 55
Contrary to what the jury was told, the knife the
prosecution claimed was the murder weapon was not
linked to the crime .……………………………....………... 56
Contrary to what the jury was told, the Casio watch with
Browning’s thumbprint on it was not taken in the robbery .. 57
Contrary to what the jury was told, Browning had no
heroin in his system on his arrest, and Marsha Gaylord
was not in jail ………………………………..……………. 58
Marsha Gaylord could have explained Browning’s
fingerprints in the jewelry store ..………………………….. 60
The prosecutor argued that the presumption of innocence
is a “farce” and a “façade …………………………………. 61
c.
In light of all known evidence now of record, disclosure
of the bloody shoeprints would have produced a different
result ………………………………………………………. 62
iii
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C.
The fact the bloody shoeprints were present before police and medics
entered the crime scene requires the writ to be granted, or a hearing
held, on Browning’s Napue claim ………………………..…………….. 63
1.
The Napue claim turned on different factual issues and a
different prejudice standard from the Brady claim ………………. 64
2.
The District Court erred in summarily denying the Napue
claim ……………………………………………………………… 65
a.
Substantial evidence indicates that both the prosecutor
and his main police witness knew the truth about the
bloody shoeprints ………………………………………….. 65
b.
The District Court wrongly denied discovery and an
evidentiary hearing on this claim ………..………………... 67
c.
There is a reasonable probability that the prosecution’s
misleading testimony and argument regarding the bloody
shoeprints could have affected the verdict ………………… 69
II.
BROWNING WAS DENIED DUE PROCESS WHEN THE
GOVERNMENT CONCEALED EXCULPATORY INFORMATION
REGARDING THE CREDIBILITY OF RANDALL WOLFE ………… 70
A.
The undisclosed impeachment was not cumulative of what the
jury heard ……………………………………………………………….. 73
B.
The Nevada Supreme Court unreasonably held the failure to disclose
evidence impeaching Randy Wolfe’s credibility was not prejudicial ……74
III.
BROWNING WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL BY HIS TRIAL LAWYER’S FAILURE TO
INVESTIGATE AND PREPARE FOR TRIAL, WHICH ALLOWED
THE JURY TO BE MISLED REGARDING THE SOURCE OF THE
BLOODY SHOEPRINTS, THE VICTIM’S DESCRIPTION OF HIS
MURDERER, THE ALLEGED MURDER WEAPON, AND THE
CREDIBILITY AND INVOLVEMENT OF BROWNING’S
PRIMARY ACCUSERS ……………………………………………….. 76
iv
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A.
Browning’s court appointed trial counsel failed to do basic
pretrial investigation ………………………………………………..….. 77
The failure to interview Officer Branon ………….…….…….… 77
The failure to interview Randall and Vanessa Wolfe ….…..…… 81
B.
Browning was prejudiced by his trial counsel’s ineffectiveness …........ 84
MOTION TO EXPAND CERTIFICATE OF APPEALABILITY …………... 86
IV.
BROWNING WAS DENIED HIS SIXTH AMENDMENT RIGHT
TO TRIAL BY JURY BY THE TRIAL COURT’S FAILURE TO
INSTRUCT ON THE ELEMENT OF DELIBERATION IN FIRST
DEGREE MURDER …………………………………………………… 86
V.
BROWNING WAS DENIED DUE PROCESS BY THE
PROSECUTOR’S MISCONDUCT IN ARGUMENT TO THE
JURY …………………………………………………………………… 91
A.
The prosecutor falsely told the jury that the victim’s blood was on
Browning’s jacket ……………………………………………………… 91
B.
The prosecutor told the jury the presumption of innocence is a
“farce” and a “façade ………………………………………………….. 94
VI.
BROWNING WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL BY HIS TRIAL LAWYER’S WHOLESALE
FAILURE TO INVESTIGATE AND PREPARE FOR TRIAL ………. 97
CONCLUSION ………………………………………………………………. 102
v
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JURISDICTION
The District Court had jurisdiction over this petition for habeas corpus under
28 U.S.C. § 2254. The District Court's Judgment was entered on August 1, 2014.
1ER 14. A timely FRCP 59 Motion was denied on January 13, 2015. 1ER 13.
Notice of Appeal was filed on February 5, 2015. See 7ER 1711.
The District Court granted a Certificate of Appealability on five issues. 1ER
74. This Court has authority to decide these issues under 28 U.S.C. §§ 1291 and
2253. Pursuant to Circuit Rule 22-1(e), Appellant moves for a Certificate on three
issues the District Court declined to certify. See Arguments IV-VI, below.
ISSUES PRESENTED
Certified Issues
1.
Whether Browning’s due process rights under Brady v. Maryland
were violated by the prosecution’s concealment of evidence that bloody shoeprints
at the murder scene—concededly not Browning’s—were made before police and
medics arrived, likely by the true murderer.
2.
Whether Browning’s due process rights under Napue v. Illinois were
violated by the prosecution’s misleading evidence and argument to the jury that the
bloody shoeprints were probably made by police or medics, not the murderer.
1
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3.
Whether Browning’s due process rights under Giglio v. United States
were violated by the prosecution’s concealment of evidence impeaching informant
Randall Wolfe.
4.
Whether Browning’s right to effective trial counsel was violated by
his lawyer’s failure to learn and inform his jury that (a) the bloody shoeprints at the
scene were made before police and medics arrived, likely by the true killer; (b)
the victim gave police a description of the killer that did not match Browning; (c)
forensic analysis contradicts the prosecution’s claim that Browning’s knife was the
murder weapon; and (d) the prosecution’s key witnesses at trial were serial police
informants who were rewarded for their testimony against Browning.
Uncertified Issues
5.
Whether Browning’s right to jury trial was violated by the omission of
the element of deliberation from jury instructions defining first degree murder.
6.
Whether Browning’s right to due process was violated by the
prosecutor’s false argument to the jury that the victim’s blood was on his jacket.
7.
Whether Browning’s right to due process was violated by the
prosecutor’s argument to the jury that the presumption of innocence is a “farce”
and, “in this case,” a “façade.”
8.
Whether Browning was denied effective assistance of counsel by his
lawyer’s wholesale failure to investigate and present a defense.
2
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STATEMENT OF THE CASE
This is an appeal from an order of the United States District Court for the
District of Nevada summarily dismissing a habeas corpus petition filed by Paul
Lewis Browning, a state prisoner under sentence of death for a robbery-murder.
This is an actual innocence case. Browning has always maintained that he is
innocent of the murder and was framed by two police informants. The record is full
of evidence—mostly uncovered long after Browning’s trial—supporting his claim.
The victim was a jewelry store owner who was stabbed to death. Bloody
shoeprints led from the body to toward the door where the killer fled.
The shoeprints were not Browning’s. The prosecution led the jury to
believe the prints were made by police or medics, but withheld evidence
that they were already present when police arrived, and so likely were
made by the killer. See Argument I, below.
The two key prosecution witnesses were indeed longtime, repeat police
informants, who, unbeknownst to Browning’s jury, were rewarded for
their testimony against Browning. See Argument II, below.
The only physical evidence allegedly tying Browning to the killing was a
spot of blood on a jacket. The prosecutor told the jury it was the victim’s
blood and that alone conclusively proved Browning guilty. But in state
habeas, Browning proved, and the State conceded, the blood on the jacket
was not the victim’s. See Argument V A, below.
The dying victim gave police a description of the murderer that did not
match Browning. At trial, the prosecution obscured and discounted this
by misrepresenting the description and who gave it. This, too, was only
exposed in state habeas proceedings. See Argument I B 4 b and
Argument III, below.
3
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The list goes on. See Argument I B 4, below. Many of the errors and
misrepresentations were acknowledged by the Nevada Supreme Court. But that
court held all the constitutional defects it recognized were nonprejudicial because
of the supposedly “overwhelming” evidence of Browning’s guilt. See 1ER 187220, 269-275.
This “overwhelming” evidence originally included the alleged spot of the
victim’s blood on Browning’s jacket. See 3ER 898-900; 4ER 1034. When
Browning proved the blood was not the victim’s, the Nevada Supreme Court fell
back on a trio of the most common sources of wrongful criminal convictions:
police informants, cross-racial identifications, and questionable forensic evidence.1
See 1ER 153-154, 219.
1
“[R]esearch has identified seven central categories of sources [of
convictions of the innocent] … (1) mistaken eyewitness identification; (2) false
confessions; (3) tunnel vision; (4) informant testimony; (5) imperfect forensic
science; (6) prosecutorial misconduct; and (7) inadequate defense representation.
… [T]he literature also discusses the potential role of race effects, media effects,
and the failure of postconviction remedies.” J. Gould and R. Leo, 100 Years Later:
Wrongful Convictions After a Century of Research, 100 J. CRIM. LAW & CRIM.
825, 841 (2010); accord, A. Kozinski, Preface: Criminal Law 2.0, 44 GEO. L.J. iii,
iv, xxx, xxxiii (2015) (describing mistaken eyewitness identification, flawed
forensic evidence, “serial informants,” prosecutorial misconduct); B. Scheck et al.,
ACTUAL INNOCENCE 246 (2000); S.R. Gross, et al., Exonerations in the United
States, 1989-2003, 95 J.CRIM.L.& CRIM. 523, 551 (2005); S. Guerra Thompson, et
al., AMERICAN JUSTICE IN THE AGE OF INNOCENCE 9-42, 195-234 (2011).
The only common cause of wrongful convictions not present in this case is a
false confession: Paul Browning has always said he is innocent of this crime.
4
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The District Court below deferred to all the Nevada courts’ rulings—
including some not actually made, see pages 63-64, below—and dismissed
Browning’s federal habeas petition summarily, without allowing discovery, an
evidentiary hearing, or oral argument. See 1ER 15, 121-132. Sua sponte,
however, it granted Certificates of Appealability on five of Browning’s
constitutional claims, which are the main focus of this appeal. 1ER 74.
STATEMENT OF FACTS
The Amended Petition (2ER 301ff),2 the state record, and the record below,
show the following:
The crime and police investigation
The Nevada Supreme Court described the crime for which Paul Browning
was convicted and sentenced to death, as follows:
On November 8, 1985, Hugo Elsen was stabbed to death during
a robbery of his jewelry store in Las Vegas. His wife, Josy Elsen, was
in the back of the store when he was attacked. Hearing noises, she
went into the showroom and saw a black man wearing a blue cap
squatting over her husband holding a knife. She fled out the back door
2
Because the petition below was summarily dismissed, the “facts alleged in
the petition should be presumed as true unless they are patently false,” Fuentez v.
Brown, 256 F. App'x 966, 967 (9th Cir 2007) (citing Blackledge v. Allison, 431
U.S. 63, 75–76 (1977)), or unless they contradict reasonable factual determinations
made in state court, Murray v. Schriro, 745 F.3d 984, 998 (9th Cir 2014).
Except where otherwise noted, the factual statements in this Brief are based
on findings and statements of fact by the Nevada courts or the District Court
below, found in the first volume of the Excerpt of Record (“1ER”); or on
allegations in the Amended Petition (2ER 300ff) and supporting documents.
5
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to the neighboring store and asked the employees there to call the
police. She and a neighboring employee, Debra Coe, then returned to
the jewelry store where Coe placed a pillow under Elsen’s head and
covered him with a blanket. Two to four minutes later help arrived.
Elsen soon died, after giving a very brief description of the perpetrator
as a black man wearing a blue cap with loose curled wet hair.
1ER 188.
Las Vegas Police Officer Gregory Branon was the first officer to arrive and
one of the first to enter the crime scene. 1ER 24-25, 193; 2ER 408; 6ER 1457.
He found Mr. Elsen, who had been stabbed six times, lying in a pool of blood.
1ER 16; 2ER 408-409. He also saw bloody shoeprints with a man-sized tennis
shoe tread that led from the northeast corner of the store (where Mr. Elsen was
found) toward the entrance door, from which Mrs. Elsen later told police she saw
the killer escape. 1ER 27; 2ER 373-375, n.39, 546; 4ER 981; 5ER 1241; 6ER
1654, 1659.
Officer Branon also took Mr. Elsen’s “brief description” of the killer as a
black man wearing a blue cap with hair that was “shoulder length,” “loose curled”
“wet” looking hair. 6ER 1461-1462; see 1ER 44.3 Officer Branon said Mr. Elsen
was “lucid” as he gave the description. 6ER 1459. But in his report (and his
testimony at Browning’s trial), Officer Branon used the shorthand term “geri
3
Mr. Elsen said the killer’s hair was “shoulder length,” as well as “loose
curled” and “wet.” 6ER 1461-1462. The Nevada Supreme Court’s opinion left out
“shoulder length.” See 1ER 44, 188.
6
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curled type hair” to describe what Mr. Elsen had told him. 4ER 1000; see 3ER 832
(“Jeri-type curl”); 6ER 1461-1462.
While the police were investigating, a man named Randy Wolfe approached
the crime scene and said he had information about the robbery. 1ER 16; 1ER 189.
Wolfe was a heroin user and a repeat police informant. 1ER 35, 2ER 311. He said
that a man, later identified as Paul Browning, was in his hotel room at the nearby
Normandy Hotel with stolen jewelry and Wolfe’s wife, Vanessa. 3ER 759.
Vanessa Wolfe was a heroin addict and a prostitute who, like her husband, had
long been an informant for the Las Vegas police. 3ER 789-790; 4ER 1019.
The police went to the Wolfes’ hotel room, which was just a few blocks
from the crime scene. 2ER 413. Wolfe called his wife to have her leave the room
before the police got there. See 4ER 1026.
The police got to the Wolfes’ hotel room just over a half hour after the
robbery. 2ER 413; 4ER 1019. They kicked in the door and found Paul Browning.
See 4ER 1027. Browning didn’t have loose curled shoulder length wet hair. 1ER
193. Nor was he wearing a blue jacket or a blue cap, and no such cap or jacket
was found in the Wolfes’ room.4 1ER 274, n.3 (“Browning was not wearing the
4
Vanessa Wolfe showed police a blue baseball-type cap in a dumpster
outside the hotel (1ER 16), but there was conflicting testimony about whether it
was the hat the witnesses saw. One of the identification witnesses, Debra Coe, said
it looked like the hat she saw. 2ER 410; 3ER 696. So did Mrs. Elsen. 3ER 665.
Another identification witness, Charles Woods, said the hat he saw was a beret, not
7
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clothing described by the witnesses.”); see Dkt. 83-17 at 41 (inventory).
Browning’s person was searched and had no blood on his body, clothing or shoes.
2ER 318-319; 4ER 1010. Nor were there any scratches, cuts or injuries as would
be expected from a violent struggle, anywhere on his hands or body. 2ER 318319; 7ER 1703. Browning surrendered to the police without incident and
consented to a search of his own hotel room. 1ER 16; see 4ER 1025.
The search of Browning’s hotel room produced no hat, weapon, clothing,
jewelry, or anything relating to the robbery or murder. See 2ER 350; 4ER 102024. However, in the initial search of the Wolfes’ hotel room, where Browning was
arrested, the police found several items of jewelry stolen in the robbery, along with
two long velveteen jewelry cases. 1ER 16; 4ER 1020-22. The jewelry cases and
the stolen jewelry were not on or near Browning’s person5 and none of it bore his
fingerprints. 1ER 210; see note 8, below. The search of the Wolfes’ hotel room
a baseball cap with writing on it. 3ER 714. Another witness, William Hoffman,
said he saw a blue billed cap with writing, but not the one in evidence. 3ER 84243. The cap from the dumpster had hairs and a “possible blood-like substance” on
it, but when it was tested, nothing was found. 4ER 974-75, 1022.
5
See 2ER 350; 4ER 1020-22. The opinions of the Nevada Supreme Court
and the District Court below state at several points that Browning was found “in
possession of” or “surrounded by” the stolen jewelry. See 1ER 16, 210, 216, 219.
The record does not fairly support these statements. The only stolen items found in
the room with Browning were a few watches on the floor, several feet away from
where he was sitting (either in a chair, see 4ER 1027, or on the edge of the bed,
3ER 749), and single ring found on a table. See 2ER 350; 4ER 1020, 1031. Most
of the jewelry taken in the robbery turned up later, in the possession of Vanessa
and Randy Wolfe. 2 ER 322; see 3 ER 763-764; 4ER 1023.
8
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also turned up a tan jacket and a used black Casio watch with a broken plastic
band. 1ER 16; 1ER 70.6
Browning was taken from the Wolfes’ hotel room to the crime scene, where
he was shown to three possible witnesses in a “one man show-up procedure” which
the Nevada Supreme Court understatedly acknowledged “may have been
suggestive under the circumstances of this case.” 1ER 273. The police pulled
Browning, who is African-American, from the backseat of a patrol car with no
shirt on and his hands cuffed behind his back, so the witnesses could identify him.
1ER 42; 2ER 364-366. Two of the witnesses—all of whom were white—did.
One of the witnesses who identified Browning was Deborah Coe, the
adjoining business owner who came to Mrs. Elsen’s aid. After the show-up, Mrs.
Coe gave a statement in which she said that she had looked out a dark tinted
window and saw a black man about 6 feet tall, 27-years old, medium color,
moustache, with curly hair just past the ears, wearing blue jeans, a dark blue
6
The Casio watch had Browning’s thumbprint on it (2 ER 372, 400, 563)
and the prosecution argued that proved Browning’s connection to the stolen
jewelry (3ER 871). But the watch was never connected to the jewelry store, was
not part of the stolen jewelry returned to Mrs. Elsen, and was not admitted as
evidence at Browning’s trial. 2 ER 400; Dkt. 59-40, p. 23. Browning said the
Casio watch was his, and described it. 2 ER 400-401. In state habeas the court
noted the Casio watch was worn and was missing the number one on the watch’s
face. Dkt. 59-150, p.24.
9
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windbreaker coat and a blue hat, running by the store. 1ER 16; 2ER 364-367.7
Coe said it “[l]ooked like [the man] ran by [the victim’s] door and it didn’t look
like he came out of it …. It looked like he must’ve ran past it.” 2ER 365; 3ER
704. She didn’t see anything in his hands. 2ER 367. After the show-up, Mrs. Coe
said that Browning “resembled” the man she saw outside the store, but that she
“won’t point a finger at him because I can’t be positive.” 2ER 366; 4ER 991.
Asked whether she could be “more sure in [her] mind,” Coe responded “No, 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.” 2ER 367; 4ER 992.
The other witness who identified Browning at the show-up was Charles
Woods. Mr. Woods told officers that he and another man, Raymond Wagner, were
standing outside near the store when a black male came toward them at a slow jog.
1ER 16; 2ER 410. He said the man was wearing a beret-like hat (not a baseball
cap) and, although he was “[w]ithin touching distance” of the man, he did not see
blood on him and did not see he was carrying anything. 3ER 714, 718-719. A
police officer told Mr. Woods “they have a suspect” and asked him to “stick
Mrs. Coe originally told a police officer something about a man who was
“blonde” who she “assumed … was white”. 2ER 367, n.36; 4ER 989. This
statement was not recorded and Browning’s jury never heard about it. 2ER 367
and n.36; 3ER 677-709.
7
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around and identify him” 3ER 716. When Browning was brought back for the
show-up, Woods said he was the man outside the store. 1ER 16; 2ER 410.
The third witness at the show-up was Brad Hoffman, another adjacent
business owner. Mr. Hoffman said he saw a person outside the store about 20
minutes before the robbery (3ER 839) whom he described as “Cuban,” about 5’7”, with a slight build, wearing a Levi’s shirt and a blue baseball cap. 3ER 835.
He said Browning was not the person that he saw. 3ER 838-39.
Josy Elsen, the victim’s widow, was unable to provide a detailed description
of the man she saw, except that he was black and she recalled a blue cap. 1ER 38;
see 3ER 663. When, a few weeks later, she was shown a photographic line-up,
Mrs. Elsen said
she did not think that she would be able to identify the subject, that
she only saw him for a very slight moment from the side and that she
could readily recognize the blue cap he was wearing, however never
saw him full face and did not think she would be able to pick him out.
2ER 376; see 4ER 997. She was nonetheless shown an array of twelve photos,
including one of Browning. 2ER 376; see 4ER 996-997, 1003-1008. She did not
pick Browning but picked two other men who did not resemble him. 2ER 376-377;
4ER 996-998.
Hours after Browning’s arrest, the Wolfes handed over to police additional
jewelry—some sixty-five (65) pieces in all—that they said police had missed in
two searches of their one-room apartment. 1ER 142; 2ER 322; 4ER 1023. That
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still was not all of the jewelry that was taken, however. 1ER 142; 2ER 322.
Martha Haygard, the manager of the Normandy Hotel, testified at trial, consistent
with her pretrial statements, that she saw the Wolfes wearing large amounts of
jewelry days after the crime. Dkt. 59-38, p. 23-24; see 6ER 1504-05. Randy Wolfe
first denied, and then admitted, that he took some of the jewelry, and he apparently
wore some of it to Browning’s preliminary hearing. 2ER 322; 3ER 775; 5ER 127778. In state habeas, Browning proffered a witness who said he went with Wolfe to
sell some of the stolen jewelry he had kept, as well. 2ER 320; 6ER1588.
Police investigators found 23 latent fingerprints at the scene, two of which
their analyst said matched Browning. 1ER 189; 3ER 641-45; 5ER 1227. Neither
of the two prints were in blood and there was no indication of their age. 3ER 645,
652; 5ER 1232-33. The police did not try to match these or any of the other
fingerprints to anyone other than Browning. 3ER651-652; 5ER 1246-1250.8
The proceedings in state court
Because the Clark County Public Defender’s office had represented the
Wolfes, Randall Pike, a former Clark County deputy prosecutor, was appointed to
represent Browning. 2ER 306; 5ER 1267. Pike spent less than twelve (12) hours
The prosecutor argued at trial that the print was on a piece of shard from
the working side of the counter. 3ER 872. In state habeas, Browning’s lawyers
called a latent print examiner and crime scene analyst who said it was possible for
the print to be left on that surface by a person leaning over the case or standing in
front it (5ER 1234-1239), as Browning said he had done while in the store with his
girlfriend Marsha Gaylord, a day or so before the robbery. See 6ER 1636.
8
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on all his factual and investigative preparation for trial. 2ER 306-307. Pike was
authorized an investigator, Martin Schopp, but made little use of him. 2ER 307;
see 6ER 1499 - 1502. Schopp told Pike months before trial that the investigation
was inadequate, and he needed additional authorization to continue the
investigation, but he never got it. 2ER 307-308; 6ER 1493-1504, 1509.
Prior to trial, Pike talked to Marsha Gaylord, Browning’s girlfriend, who
knew Vanessa Wolfe from prostitution. 5ER 1275; 3ER 791. Gaylord told Pike
that she had been with Browning at the jewelry store, the day before the robbery;
that she wasn’t in jail as Randy Wolfe had claimed; and that she knew the Wolfes
had a friend she thought was Cuban and had hair matching Mr. Elsen’s description.
See 5ER 1280; 6ER 1636-1638. However, Pike did not subpoena Gaylord and
she disappeared after the prosecution secured an early trial continuance. See 2ER
361; 1266-67; 1ER 200, 2ER 319-320. See page 61, below.
Pretrial proceedings
The original trial date was set for March 3, 1986, with a calendar call on
February 27, 1986. 2ER 323; see 4ER 908. At the calendar call, the prosecution
said it was not ready to proceed and asked for a continuance. Defense counsel
Pike objected and said he was ready to proceed. 2ER 323; 4ER 912. The judge
ordered the lead trial prosecutor on the Browning’s case, Daniel Seaton, to appear
the next day to address the matter. Seaton did so, and claimed he needed a
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continuance to “try to locate our witnesses.” 1ER 297. The defense again objected
and pointed out that there was no sworn testimony that the witnesses were
unavailable, which Nevada law required. 1ER 297-98. It was later learned that the
witnesses, Randy and Vanessa Wolfe, had been in the same judge’s courtroom the
same week, testifying for the same prosecutor’s office in another case. 9 5ER
1147-1154. The judge overruled Browning’s objection and continued the trial.
1ER 299.
As a result, Browning’s trial was delayed for over nine months (1ER 284286; 2ER 323-24) while Pike sought relief in the Nevada Supreme Court and
federal district court, through a habeas petition. See 1ER 294, 283-292. The
motions and petition were denied on the ground that Browning had not shown the
prosecution was continued by the State in bad faith and that he would be
irreparably injured by waiting until after trial. 1ER 290-91.
The trial
Browning’s trial began December 9, 1986. The prosecution challenged the
only two African-American jurors called, so the jury was all white. 1ER 271.
9
The case on which the Wolfes were testifying was State v. Gerald Morell,
Clark Cty. No. C72592. See 2 ER 319; 6ER 1579-1586. On February 27, 1986—
the day of the continuance request in Browning’s case—Morell was acquitted by a
jury. 2 ER 499, 588; 6ER1579-86. The acquittal came despite the Wolfes’
testimony Morrell committed the charged crime in their presence —which Vanessa
Wolfe tried to corroborate (much as she did in Browning’s case) by giving police a
knife she said she was given by Morrell. 3ER 803-806; 6ER 1580.
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In opening statement, defense counsel Pike told the jury about the
“footprints left at the scene in Mr. Elsen’s blood [that] did not match the footprints
of Paul Lewis Browning when he was arrested. Did not match.” 3ER 622-623.
The prosecutor did not mention the bloody prints in his opening, (3ER 602-619),
but he countered the defense argument with the first prosecution witness, David
Horn, an identification specialist with the Las Vegas Metropolitan Police
Department. 3ER 626. Spec. Horn confirmed that the prints did not match
Browning’s shoes, but said he did not investigate them because (as the District
Court summarized his testimony) the prints were “likely left by paramedics or off
duty detectives.” 1ER 26; 3ER 637-640.10
“Randy and Vanessa Wolfe [were] the State’s key witnesses.” 1ER 34.
Both testified that Browning had confessed to them that he had killed someone.
3ER 750, 757, 804. Vanessa Wolfe said she found Browning on the bed with a
quantity of jewelry. 1ER 16.11 She said Browning had asked her to dispose of the
blue hat and a knife, and she helped him cut the tags off some jewelry. 1ER 16;
3ER 805 - 810. She gave police a knife that the prosecution later suggested was
In fact, the bloody prints were there before the police or paramedics
entered the scene. 1 ER 25; see Argument I, below.
10
11
Neither Browning nor the jewelry were on the bed when the police
arrived, however. See note 5, above.
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the murder weapon, although no forensic evidence—blood, trace evidence, or
fingerprints—linked it to the crime or to Browning. 2ER 315-17.12
In cross-examination, defense counsel asked both Wolfes whether they
received any benefit for their testimony. 3ER 773-74, 823. Randall Wolfe denied
receiving any benefits other than a slight reduction of an unrelated charge. 1ER
36; 2ER 342; 3ER 773-774, 783. The prosecutor had him repeat this on re-direct.
3ER 787.13 It was later learned that, between the time of Browning’s arrest and
trial, Randall Wolfe was charged with at least two felonies and several
misdemeanors. 2ER 342; 6ER 1520-1549. After he testified in Browning’s case,
prosecutor Seaton got Wolfe probation, rather than a possible 5-year sentence on
those charges. 2ER 343; 6ER 1526 - 1527, 1531-1533. He also helped Wolfe get
a job, as a reward for his testimony against Browning. 1ER 36. See Argument II,
below.
12
In the District Court below, Browning’s lawyers submitted a statement
from a defense forensic examiner who, from a review of documentation, noted that
the knife did not fit all Mr. Elsen’s wounds, there was none of the residue on the
knife that would be expected from a stabbing, and there was organic material at the
base of blade, indicating that the knife had not been washed in a way that would
remove such evidence from it. 6ER 1665-66.
13
Pretrial, prosecutor Seaton responded to defense requests for disclosure of
any incentives given Randy Wolfe by saying “I can tell the Court categorically at
this time … there has never been any plea bargaining with Randy Wolfe regarding
this case.” 2ER 341-342; 4ER 933.
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When the defense asked Vanessa Wolfe if she received anything for her
testimony, the prosecutor objected on the ground the question was unfounded.
3ER 823. Mrs. Wolfe testified that she did not receive any benefits for her
testimony. 3ER 823-824. On redirect, the prosecutor had her specify that the only
consideration she received for her testimony was a $25.00 witness fee and $15.00
for food. 2ER 345; 3ER 827-828. After trial, it was learned Mrs. Wolfe had been
arrested ten (10) different times between Browning’s arrest and trial and the Clark
County District Attorney’s office declined to file all but one of those charges. 2ER
345-346; 6ER 1550 - 1569. In the one incident for which she was charged, Wolfe
punched and bit the arresting officer. 2ER 345-346, n.22; 6ER 1563-1565. After
Browning was sentenced, the charge against Mrs. Wolfe for that assault and
battery was reduced to misdemeanor attempted escape and she received a fine of
$1,000. 2ER 345-346, n.22; 6ER 1568-1569.
The most sympathetic trial witness was Josy Elsen. Prosecutor Seaton led
her through an ambiguous identification of Browning as the man she saw kneeling
over her husband with a knife. 3ER 663-65. Although Mrs. Elsen had seen
Browning in some eighteen prior court appearances after she failed to pick him
from the photo show-up (1ER 274; 2ER 378-79), she testified “I saw him only
from the side, you know. Like I say, had a blue cap on. I saw this hair a little bit
puffed in the back. . . That’s all I saw.” 3ER 663. The prosecutor then asked:
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Prosecutor: Is he here?
Witness:
He is here.
3ER 663. The trial court interjected and asked Mrs. Elsen what “he” was wearing
and indicated for “the record” she had identified Browning. 3ER 664. Browning
was the only African-American male in the court room. 1ER 38.
During closing argument Seaton told the jury Mrs. Elsen’s identification was
“as good as you can ask for”:
Mrs. Elsen identified Browning. . . She sat up here and told you
this horrendous tale, and she pointed over at Mr. Browning and she
said – points right at him – “That’s the man who was kneeling over
my husband.” Is that a face which will be indelibly etched in her
mind the rest of her life? Will she ever forget the face of the man who
took her husband away from her? I think not. That identification is as
good as you can ask for.
3ER 868 (emphasis added). Post-trial, however, the State conceded and
affirmatively argued that Mrs. Elsen never actually made a positive identification
of Browning, before or during trial. 1ER 199; 2ER 314, n.11.
The prosecution also called Mrs. Coe and Mr. Woods, both of whom
identified Browning sitting in the courtroom, as they had at the one-man show-up.
3ER 699-701, 716-718. The defense countered with Mr. Hoffman, who repeated
that Browning was not the man he saw outside the store before the robbery, who he
again said was “Cuban.” 3ER 837-838.
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An identification specialist with the Las Vegas Metropolitan Police
Department testified about the two fingerprints found in the shop that were alleged
to match Browning’s. 3ER 643. He testified that the prints were located on a
countertop and from a glass shard. 3ER 643-44. A Las Vegas Police criminalist
testified that the spot on the tan jacket found in the Wolfes’ room with Browning
was type B blood, the same as Mr. Elsen’s, while Browning has type O blood.
1ER 213; 2ER 309.14
Although Officer Branon was the officer who first entered the scene15 and
took Hugo Elsen’s description of his attacker (1ER 43-44), the prosecution did not
call him as a witness. Defense counsel Pike did—but did so without first
interviewing him or having him interviewed. 1ER 44; 2ER 317; 6ER 1473. As a
result, Branon’s direct testimony simply repeated his report about the description
of the murderer he “received”:
Q.
[defense counsel Pike] What was the description that you had?
A.
The description we received was black male, adult in his late twenties,
wearing a blue baseball cap, blue windbreaker-type jacket, blue
14
In state habeas, DNA testing on this spot showed, and the State stipulated,
the spot of blood was not Mr. Elsen’s. See pages 53-54, below.
15
The Nevada Supreme Court referred to Branon as “the first officer on the
crime scene” (1ER 193), but the District Court pointed out that one or two other
officers were with him when he entered. 1 ER 29-30. Nothing indicated, and
neither court found, that any officer or medic entered the scene before Branon,
however.
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Levi's. He was medium complexioned, bore a mustache and what was
described as a shoulder length Jeri-type curl.
Q.
Could you describe what Jeri curl hair looks like, if you know.
***
THE WITNESS: … you can tell it is chemically treated. It's got a wet,
shiny look to it.
3ER 831- 33. Prosecutor Seaton—who made a practice of personally interviewing
witnesses before trial, see 6ER 1408—asked Officer Branon no questions. 3ER
833. The jury therefore never heard the truth about the description—that it was
given by Hugo Elsen himself, and that Mr. Elsen’s actual description was that the
killer, unlike Paul Browning, had hair that was “loose curled,” “shoulder length”
and looked “wet.”16
In his rebuttal argument to the jury, Seaton relied upon Branon’s editorial
addition of the term “jeri-curl” to discount the significance of the discrepancy
between the unattributed description and Browning’s appearance: “Couldn’t
someone, some white person, not really knowing the true definition of Jeri curl, …
16
The Nevada Supreme Court at one point said “Officer Branon testified at
trial that he received from the dying Elsen a description of the killer ….” 1ER 44,
193 (emphasis added). The District Court quotes this (1ER 44), but the italicized
portion is clearly incorrect: remarkably, at Browning’s trial, Officer Branon never
said who the description came from (see 3ER 831-33) and neither did any other
witness.
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tell the officer that it looks to them like a Jeri-curl?. . . So I don’t think there is
anything to this Jeri curl business…” 3ER 894-9517 (emphasis added).
Officer Branon’s report did not mention the bloody shoeprints he saw at the
scene (1ER 26-27; 4ER 999-1003), and defense counsel Pike asked him no
questions about them. 3ER 830-34. As noted above, prosecutor Seaton asked
Officer Branon no questions at all. Id. As a result, in closing argument, defense
counsel Pike’s answer to Horn’s testimony about the likely source of the bloody
prints was a vague, indirect criticism of the police investigation. See 3ER 880.
Prosecutor Seaton did not bother to answer this argument. 3ER 891-900.
Instead, he told the jury that they could not assume that Paul Browning was like
“you and me” because he was a heroin addict, and that was the motive for the
robbery murder. 1ER 59; 2ER 349; 3ER 873.18 The only witness who said that
Browning was a heroin addict was Randy Wolfe. 1ER 197-98. Though the jury
was never told of it, a drug screen done at Browning’s arrest showed there was no
heroin in his system. 2ER 349; 4ER 977.
17
The Nevada Supreme Court and District Court similarly misread the
record when they said “the prosecutor argued that it was understandable if a white
person, such as the victim, incorrectly used the term “jeri-curl” to describe
Browning’s hair.” 1ER 44, 193 (emphasis added). The prosecutor never said or
suggested the description came from “the victim.” See 3ER 894-95.
The prosecutor’s arguments to the jury mentioned heroin six times, drugs
six times, “addict” twice. 3ER 603, 604, 605, 610, 855, 865, 873, 874, 899.
18
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Prosecutor Seaton also told the jury in closing that the presumption of
innocence was a “farce” and “in this case” it was a “façade”:
Now we are talking about when that wonderful constitutional
element called the presumption of innocence, we are now talking
about piercing that veil, dropping that façade because, in fact, as a
person sits in a courtroom he may not be innocent. He may be guilty.
He 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.
3ER 846 (emphasis added).19
Prosecutor Seaton’s final rebuttal argument was brief and devastating. It
began with more references to Browning’s alleged heroin use and criticisms of
defense counsel’s failure to support his factual arguments—particularly the claim
Marsha Gaylord had disappeared and was not available to testify for Browning.20
19
The Nevada Supreme Court’s appeal decision said the reference to the
presumption of innocence as a “farce” was “outrageous” misconduct but was not
reversible because of the “overwhelming evidence” of guilt. 1ER 64. See
Argument V A, below.
20
And I think this just points out a typical weakness of the defense’s
position in a very weak case, and this is, that is Marsha in jail, Mr.
Pike wants to know, and why didn’t I bring in jail records. I don’t
have to bring in jail records. I had testimony that she was in jail.
Randy Wolfe said that Marsha Gaylord was in jail.
3ER 892. The prosecution stipulated in state habeas that Gaylord was not “in jail”,
but was arrested on the night before the murder, and released the next morning.
5ER 1109.
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But he quickly and dramatically concluded by telling the jury that the blood on the
jacket was the victim’s and this singular fact provided Mr. Browning guilty:
The jacket that had Hugo Elsen’s blood on it that Paul
Browning was wearing when he killed him. This proves his guilt as
much as anything … [Y]ou don’t have to spend five minutes in the
deliberation room. Come back in here and tell me he’s guilty. It’s as
simple as that.
3ER 899-900. The jury did as Seaton suggested, convicting Browning on all
counts and then sentencing him to death. 1ER 189-190.21
Browning was assigned a new appointed lawyer on appeal. See 4ER 1032.
The Nevada Supreme Court’s appeal decision recognized several errors, including
prosecutor Seaton’s “outrageous” arguments denigrating the presumption of
innocence. 1ER 269-275. However, it found any constitutional errors were
harmless because of the “overwhelming” evidence of Browning’s guilt. Id.
The Nevada court’s opinion did not specify the evidence it found
“overwhelming,” but during oral argument the Justices emphasized the knife, the
“bloodstained garments” and the testimony of Josy Elsen. See 4ER 1034, 1037-38.
Years later, in postconviction and habeas proceedings, DNA testing showed that
the blood on the only “bloodstained garment” in the case—the jacket found in the
At the conclusion of the guilt phase of trial, the trial court instructed the
jury that Nevada first degree murder is defined as “the willful, deliberate and
premeditated killing of another human,” but its instructions omitted the essential
element of “deliberation.” 2ER 382-383; 4ER 943; see Argument IV, below.
21
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Wolfes’ hotel room with Browning—was not Hugo Elsen’s blood (1ER 33, 257259); the prosecution conceded that Josy Elsen never actually identified Browning
at trial (1ER 199; 2ER 314 n.11); and forensic evidence cast further doubt on
whether the knife could have been connected to the murder (6ER 1665-66).
The state postconviction proceedings.
Browning’s case lingered in state court for nearly twelve years (see 1ER 5),
before he was afforded a state habeas evidentiary hearing before Judge Joseph
Pavilikowski, the same judge who presided at his trial. 2ER 390. At this hearing,
Officer Branon testified for the first time that the bloody shoeprints at the crime
scene were there before the first officers entered. 1ER 24; 6ER1471-1472. Officer
Branon said that he told this to the “general detail detectives” (6ER 1472) and
“would have” told Spec. Horn as well. 2ER 309; 6ER 1472. Forensic testing
indicated the prints were too big to have been left by either Mrs. Coe or Mrs.
Elsen. 1ER 25; 6ER 1654-59. They were the only two people – besides the killer
and the victim – who had been in the store before the police arrived. See 3ER 69294.
Officer Branon’s postconviction testimony also revealed the truth about the
description of the murderer he “received” from Hugo Elsen. Officer Branon said
that, given Mr. Elsen’s “lucid” description of his assailant, he was “surprised” to
learn Browning was arrested. 6ER 1468.
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As noted above, also at the postconviction hearing, DNA testing showed that
the spot on the jacket which the prosecutor told the jury was “Hugo Elsen’s blood,”
was not Mr. Elsen’s after all. 1ER 33, 257-259.
Despite this, Judge Pavlikowski dismissed the state habeas petition in a two
page Order that simply said “The Court finds insufficient evidence to grant a new
trial in this matter in light of the Nevada Supreme Court's prior rulings as to the
overwhelming evidence to support the jury's verdict in this case.” 1ER 255-56.
Browning appealed—and over Browning’s objection, briefing was suspended and
the case was remanded for additional findings. 1ER 253-54. Seven days after the
objection to the remand was overruled (1ER 254), Judge Pavlikowski signed 29
pages of Findings and Conclusions prepared by the Clark County District
Attorney. 1ER 223-251.
In argument on the state habeas appeal, the Deputy Clark County District
Attorney conceded his office was responsible for the nondisclosure of Officer
Branon’s testimony about the bloody shoeprints. 7ER 1691. But he argued that it
didn’t matter because, even if the prints were not made by the police or medics (as
the prosecution had argued at trial), he said they were “probably” made by Mrs.
Coe. 7ER 1691.
The Nevada Supreme Court affirmed the dismissal of the state habeas
petition with respect to all Browning’s guilt phase claims. 1ER 187-220.
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However, it remanded for resentencing, based on a finding that Browning’s direct
appeal counsel was ineffective for failing to the challenge the “depravity of mind”
aggravator on which his death sentence was partly based. 1ER 203-208, 220.
Judge Pavlikowski presided over the resentencing. He ruled out any
evidence challenging the trial testimony—even the testimony that had been proven
false during state habeas. See 1ER 144-152; 2ER 391-402. Browning was again
sentenced to death and the Nevada Supreme Court again affirmed on appeal. 1ER
139-172. Certiorari was denied on March 23, 2009. 1ER 137.
The federal proceedings below
Browning filed the initial habeas corpus petition below pro se, in 2005. Dkt.
1. Due to the extraordinary delays in the state proceedings to date, he requested
and the District Court granted leave to proceed with his guilt phase claims despite
the pendency of the resentencing. 1ER 175-79. Through new counsel, Browning
amended the federal habeas petition and filed motions for discovery, expansion of
the record, and an evidentiary hearing—or, in the alternative, summary judgment
on his Brady claim regarding the bloody shoeprints. 1ER 121-32; 2ER 496, 498,
538, 542, 570.
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Respondent opposed Browning’s motions and District Court denied them
all. 1ER 132.22 Browning then asked for oral argument on the petition (2ER 570)
but the District Court denied that as well, in an Order that found a number of the
claims in the petition were unexhausted and required Browning to abandon them,
go back to state court, or risk dismissal of his entire petition. 1ER 118-120.
Browning objected and sought rehearing, but his objections were overruled. 1ER
84. Browning agreed to abandon the claims the court found unexhausted,
preserving his right to challenge the exhaustion ruling on appeal. See 1ER 20-21.
The District Court then issued an order dismissing all Browning’s remaining
claims on the merits, but granting a Certificate of Appealability on five of them.
1ER 74. Browning again moved for rehearing, but that was denied (1ER 13) and
this appeal followed. See 7ER 1711, 1737.
STANDARD OF REVIEW
This Court reviews the summary dismissal of a habeas corpus petition de
novo. Smith v. Mahoney, 611 F.3d 978, 995 (9th Cir. 2010). District Court
rulings on discovery and evidentiary hearings are reviewed for abuse of discretion.
Id. at 997. District Court factual findings are reviewed for clear error, but
22
The discovery motion denied by the District Court asked for, among other
things, leave to submit requests for admission regarding the facts found by the
Nevada state courts. See 2ER 498, 505-537.
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decisions on mixed questions are reviewed de novo. Lopez v. Thompson, 202 F.3d
1110, 1116 (9th Cir 2000) (en banc).
A state court’s finding of fact is presumed correct, whether it favors the
petitioner or the State. 28 U.S.C. § 2254(e); Burden v. Zant, 498 U.S. 433, 436-37
(1991) (per curiam); Sivak v. Hardison, 658 F.3d 898, 911 (9th Cir 2011). State
courts’ rulings on legal issues they adjudicate on the merits are entitled to
deference, unless the rulings are contrary to or involved an unreasonable
application of clearly established Supreme Court law, or were based on an
unreasonable determination of facts in light of the evidence presented in state
proceedings. 28 U.S.C. § 2254(d)(1) & (2); Cullen v. Pinholster, 563 U.S. 170
(2011).
A decision is contrary to clearly established federal law if it fails to apply the
correct controlling Supreme Court authority, Williams v. Taylor, 529 U.S. 362,
413-14 (2000) (opinion of Justice O’Connor), or it applies a rule in such a way that
its “decision would be ‘diametrically different,’ ‘opposite in character or nature,’
and ‘mutually opposed’ to … clearly established precedent,” id. at 406. A decision
is an unreasonable application of established law if the state court applies a correct
legal principle in a manner that is “objectively unreasonable.” Lockyer v. Andrade,
538 U.S. 63, 75 (2003).
28
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Circuit precedent regarding an issue can be considered “for the limited
purpose of assessing what constitutes ‘clearly established’ Supreme Court law and
whether the state court applied that law unreasonably.” Woods v. Sinclair, 764
F.3d 1109, 1121 (9th Cir 2014) cert. denied 135 S. Ct. 2311 (2015).
ARGUMENT
I.
BROWNING WAS DENIED DUE PROCESS OF LAW WHEN THE
PROSECUTION CONCEALED EXCULPATORY INFORMATION
AND PRESENTED MISLEADING TESTIMONY REGARDING
BLOODY SHOEPRINTS AT THE SCENE, WHICH WERE NOT
BROWNING’S AND LIKELY WERE THE MURDERER’S.
Bloody shoeprints led from Hugo Elsen’s body toward the front door of the
shop—the door from which Mrs. Elsen told police she saw the murderer escape.
1ER 27; 2ER 374-375, n. 39; 4ER 981. The bloody prints did not match Paul
Browning’s shoes (1ER 25, 194; 4ER 1015), and there was no blood on Browning
or his shoes or clothes when he was arrested minutes after the crime. 2ER 318319; 4ER 1010.
In opening statement to the jury, Browning’s defense pointed to this as
evidence the murderer was someone else. 3ER 622-623. The prosecution
countered with the testimony of Las Vegas Police Specialist David Horn, who
testified “in essence, that the bloody shoeprints were likely left by paramedics or
off duty detectives.” 1ER 26; see 3ER 637-640. The tactic worked: in closing,
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defense counsel was reduced to a general criticism of the police investigation (see
3ER 880-881)—which the prosecutor didn’t bother to answer.
Years after Browning was convicted, in his state habeas proceedings, Officer
Gregory Branon testified (as the District Court summarized) “that he was the first
at the scene, [23] and when he arrived the bloody shoeprints were already there.”
1ER 26; see 6ER 1456-57. Officer Branon acknowledged that he did not disclose
that fact in his police report but said he “had mentioned it to the general detail
detectives there” and “would have mentioned [this] … to Criminalistics Specialist
Horn when he got there” as well. 1ER 27; 6ER 1472.24
23
The District Court appears to have improperly failed to presume the
correctness of a state court finding when it questioned Officer Branon’s testimony
that “he was first at the scene” (although the Nevada Supreme Court accepted that
as fact, see 1 ER 193), citing evidence that one or two other officers entered the
crime scene with him. 1 ER 29-30. However, Officer Branon never claimed he
went in alone but always said he waited for backup before entering. See 1 ER 30;
6ER 1456-57. The other officers’ testimony is consistent with this. See 1 ER 30.
There is no evidence any officer or medic entered the crime scene before Officer
Branon saw the bloody footprints there.
24
The District Court focuses on Branon’s testimony that he “would have”
told Horn about the shoeprints, but overlooks his statement that he did tell the
“general detail detectives,” including the criminalistic specialist Horn, at the scene.
5ER 1472. The State acknowledged this in its State habeas Answer. Dkt. 59-177,
pg. 27 of 31, lines 16-20 (Branon “indicated that he only informed the detectives
involved in the case….”)
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No witness or other evidence in the state habeas hearing contradicted what
Officer Branon said, and there was forensic testimony supporting it.25 The Nevada
Supreme Court therefore said in its habeas appeal decision that it is “evident that
the prints were present before police and paramedics arrived.” 1ER 195.26
In argument on the state habeas appeal, the State conceded it was the
prosecutor’s responsibility to disclose Officer Branon’s observations to the
defense. See 7ER 1691. The Nevada Supreme Court nonetheless rejected
Browning’s Brady claim. See Argument IB1, below. It did not separately address
Browning’s separate claim that the false and misleading prosecution testimony
about the prints violated due process under the principles of Napue v. Illinois, 360
U.S. 264 (1959). See Argument I C, below.
In federal court below, after Respondent answered, Browning moved for
summary judgment in his favor on the basis of both claims. Dkt. 132; see 2ER
542-46. In the alternative, he asked for discovery and an evidentiary hearing on
whether Officer Branon’s observations were conveyed to Spec. Horn or trial
Dr. Michael Sweedo, a crime scene analyst, testified at the postconviction
hearing that based on the placement of the victim’s body and the amount of blood
on the floor, the prints must have been left before the body was found. 5ER 125455.
25
See also 1ER 194 (“the prints did not match Browning's shoes and could
not have been left by paramedics” …); 1ER 216 (accepting the “fact … that bloody
shoeprints near the victim were already present when the first police officer arrived
at the crime scene”).
26
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prosecutor Seaton. See 2ER 498,505,538,542. The District Court denied the
discovery requests (1ER 121-32) and summarily dismissed both claims, finding the
Nevada Supreme Courts’ decisions rejecting them were “reasonable.” 1ER 132.
However, the District Court granted Certificates of Appealability on both issues.
1ER 6, 74.
A.
The Nevada Supreme Court’s finding that the bloody shoeprints were
present before police and medics entered the crime scene cannot be
disregarded in federal habeas.
“Under § 2254(d)(2), a federal court ‘may not second-guess a state court's
fact-finding process unless, after review of the state-court record, it determines that
the state court was not merely wrong, but actually unreasonable.’” Cunningham v.
Wong, 704 F.3d 1143, 1164 (9th Cir. 2013) (quoting Taylor v. Maddox, 366 F.3d
992, 999 (9th Cir. 2004)). A state court’s finding of fact is “entitled to a
presumption of correctness” whether it is made by a trial or appellate court, and
whether it favors the petitioner or the State. Sivak, 658 F.3d at 911; see Burden,
498 U.S. at 436-37; Nora v. Frank, 488 F.3d 187, 200-03 (3rd Cir. 2007); Bland v.
Department of Corrections, 20 F.3d 1469, 1474 (9th Cir 1994).
No evidence counters the presumption that the Nevada Supreme Court was
correct to credit Officer Branon’s testimony that the bloody prints were present
before police or medics entered the crime scene. Although the District Court
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expressed skepticism about some aspects of Officer Branon’s testimony,27 it gave
no reason to reject this finding, and it did not do so. Analysis of Browning’s
claims therefore must proceed from the factual premise that, contrary to what the
jury was led to believe, it is evident that the bloody prints were made before the
police or paramedics arrived.
B.
The fact that the bloody shoeprints were present before police and
medics entered the crime scene requires the writ to be granted on
Browning’s Brady claim.
By rejecting Browning’s Brady claim despite its finding about the bloody
shoeprints, the Nevada Supreme Court contradicted and unreasonably applied
clearly established Supreme Court law.
Brady requires the state to disclose “evidence that is both favorable to
the accused and material either to guilt or to punishment.” U.S. v.
Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)
(internal quotation marks omitted). 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.” Id. at
682. Thus, to establish a Brady violation, a defendant must prove: 1)
“[t]he 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 probability that disclosing the
evidence to the defense would have changed the result. See Strickler
27
See note 24, above. The District Court paradoxically discounted Officer
Branon’s testimony by noting that “despite the importance of such information to
the investigation of Hugo Elsen’s murder, that information [regarding the
shoeprints] does not appear in Officer Branon’s three page police report.” 1ER 2627. Almost by definition, much the same thing could be said with regard to any
Brady violation.
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v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286
(1999); Bagley, 473 U.S. at 682.
Andrews v. Davis, ___ F.3d ___, 2015 WL 4636957 at *25 (9th Cir Aug. 5, 2015).
The fact bloody shoeprints at this murder scene were made by someone
who was there before the first responders—someone who wore man-sized tennis
shoes and was not Paul Browning—was a matter of “obvious importance,” as
the District Court recognized. 1ER 26. It “substantially undermined the state’s
… theory,” Benn v. Lambert, 283 F.3d 1040, 1062 (9th Cir 2002), that the
shoeprints provided no reason to doubt Browning was the murderer.28
The State’s concession to the Nevada Supreme Court that it was the
prosecution’s responsibility to disclose to the defense what Officer Branon saw,
7ER 1691, was clearly correct. The disclosure duty imposed by Brady and
Kyles v. Whitley, 514 U.S. 419 (1995) is “broad” and a “prosecutor must
presume in favor of disclosure, and resolve … doubts about the exculpatory
nature of a document in favor of producing it.” Amado, 758 F.3d at 1136
(citing United States v. Agurs, 427 U.S. 97, 108 (1976)).
28
In rejecting Browning’s claim that his lawyer was ineffective for failing to
investigate the bloody prints, the Nevada Supreme Court suggested they might
have been made by Mrs. Elsen “and/or” Mrs. Coe, rather than the first responders.
1ER 25, 195. However, even if that was a possibility (and all the evidence
indicates otherwise, see note 32, below), the fact that the prints were present before
police arrived and thus could not be linked to the first responders was exculpatory
and should have been disclosed, because it “tends to prove the innocence of the
defendant,” Amado v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir 2014), even if it
does not do so conclusively.
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The Nevada Supreme Court did not question the exculpatory nature of
this evidence, but rejected Browning’s Brady claim regarding the bloody
shoeprints by saying the following:
Browning contends that the State withheld the fact, discussed earlier,
that bloody shoeprints near the victim were already present when the
first police officer arrived at the crime scene. We have already
concluded this information was not material in rejecting Browning’s
contention that his trial counsel was ineffective. We further conclude
that under Brady the State did not withhold this information because it
was reasonably available to the defense, as Browning acknowledges
by claiming that his counsel should have interviewed the officer and
discovered it.
1ER 216 (italics added). The first of these italicized statements reflected a flawed
and unreasonable view of Brady’s materiality standard. The second is contrary to
clearly established Supreme Court law. We address the second statement first.
1.
The Nevada Supreme Court’s statement that the truth about the
shoeprints did not have to be disclosed because it could have been
discovered by the defense was contrary to or an unreasonable
application of clearly established Supreme Court law.
This Court recently held that a state court ruling indistinguishable from the
second italicized statement quoted above—a ruling that a Brady claim requires a
showing of “an inability [of the defense] to discover and produce the evidence at
trial, with the exercise of due diligence”—was “contrary to ... clearly established
Federal law, as determined by the Supreme Court….” Amado, 758 F.3d at 1136
(internal quotation marks omitted). “[D]efense counsel may rely on the
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prosecutor's obligation to produce that which Brady and Giglio require him to
produce.” Id.
The [state court’s] … requirement of due diligence would flip that
obligation, and enable a prosecutor to excuse his failure by arguing
that defense counsel could have found the information himself. The
proposition is contrary to federal law as clearly established by the
Supreme Court, see Early, 537 U.S. at 8, 123 S.Ct. 362, and unsound
public policy…. No Brady case discusses such a requirement, and
none should be imposed.
Id. at 1136-37. This is not new law. The rule that prosecutors have an
“affirmative duty to disclose evidence favorable to a defendant” can be traced “to
early 20th-century strictures against misrepresentation and is of course most
prominently associated with th[e Supreme] Court’s decision in Brady.” Kyles, 514
U.S. at 432. “A rule . . . declaring ‘prosecutor may hide, defendant must seek,’ is
not tenable in a system constitutionally bound to accord defendants due process.”
Banks v. Dretke, 540 U.S. 668, 696 (2004).29
Petitioner agrees that an effective defense lawyer would have done more
than Browning’s did to find the truth about the shoeprints (and many other
things). See Arguments III and VI, below. But the prosecutor’s affirmative
duty existed without a defense request. Kyles, 514 U.S. at 433.
Accord, e.g., Gantt v. Roe, 389 F.3d 908, 912-913 (9th Cir 2004) (“While
the defense could have been more diligent—and, indeed, the defense lawyer’s
failure to investigate … is part of the petitioner’s ineffective assistance of counsel
claim—this does not absolve the prosecution of its Brady responsibilities,” citing
Banks v. Dretke, supra); Benn v. Lambert, 283 F.3d at 1061 (citing Paradis v.
Arave, 130 F.3d 385 (9th Cir 1997)).
29
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This is not a case where the exculpatory information was known to the
defendant or available from public records, or where defense counsel was given
“notice as to potential Brady material and given the opportunity to seek it out
….” Amado, 758 F.3d at 1137. Nothing given to Browning or his defense
counsel before trial suggested the bloody prints were there before the police and
firefighters—and nothing suggested Officer Branon could attest to that fact. To
the contrary, Officer Branon’s police report said nothing about the shoeprints at
all. See 1ER 26.
The Nevada Supreme Court held that, despite this, there was no
withholding because defense counsel “should have interviewed the officer and
discovered” when the prints were made. 1ER 216. That statement is contrary to
or involves an unreasonable application of the clearly established Brady law
cited above. It also forgets the Nevada court’s own rejection of Browning’s
ineffectiveness claim on the ground that defense counsel reasonably “feared that
investigation might establish that the prints had been left by police or
paramedics, rather than some unidentified person.” 1ER 194. If the prosecution
had complied with its obligations under Brady, defense counsel would not have
had that fear. That makes the nondisclosure more prejudicial to Browning, not
less.
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To the extent Nevada’s rejection of this Brady claim was based on the
premise that the truth about the bloody prints was “reasonably available” to the
defense, it was contrary to clearly established Supreme Court law and deserves
no deference under 28 U.S.C. §2254(d)(1) or (2).
2.
The Nevada Supreme Court’s statement it “already concluded”
the truth about the bloody shoeprints was not “material” under
Brady warrants no deference under 28 U.S.C. §2254(d).
The Nevada Supreme Court gave an alternate reason for rejecting this
Brady claim: “We have already concluded this information” [“that bloody
shoeprints near the victim were already present”] “was not material in rejecting
Browning’s contention that his trial counsel was ineffective.” 1ER 216. The
referenced passage “already” addressing the materiality issue in the ineffective
counsel claim reads, in full, as follows:
Because the prints did not match Browning's shoes and could not have
been left by paramedics, who arrived after Officer Branon, Browning
argues that this information indicated that another person committed
the murder. We conclude that this information was not material and
that trial counsel acted reasonably. Counsel explained at the
evidentiary hearing that once he determined that the shoeprints did not
match Browning's shoes, he chose not to investigate the prints further.
He feared that investigation might establish that the prints had been
left by police or paramedics, rather than some unidentified person. As
long as the source of the prints was unknown, counsel could argue to
the jury that the actual murderer had left them. Although it is now
evident that the prints were present before police and paramedics
arrived, counsel's basic reasoning remains sound because the bloody
shoeprints were likely left by Mrs. Elsen and/or Coe, who were with
Elsen before the first officer arrived.
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Counsel made a reasonable, tactical decision to leave the
source of the prints uncertain.
1ER 194-95. This passage does not qualify as an “adjudication of the merits” of
the issue of Brady materiality; and if it did, it would be an unreasonable one.
Either way, it was not entitled to the deference the District Court gave it.
a.
The Nevada Supreme Court’s statement was not an
adjudication of the merits of the Brady/materiality issue.
The presumption that a state court adjudicated the merits of a federal
constitutional claim presented to it is “strong” but not irrebuttable. Johnson v.
Williams, 133 S. Ct. 1088, 1096 (2013). “[T]he presumption … may be
rebutted” by the content or context of the reference to the claim in the relevant
state decision. Id. For example, an issue is not “adjudicated” where it is
“simply mentioned in passing in a footnote or buried in a string cite[.]” Id. Nor
are the merits of an issue adjudicated by a state court’s factually erroneous
statement that it adjudicated the same issue previously. Cone v. Bell, 556 U.S.
449, 466 (2009). And a state court’s decision based on one element of a twopart constitutional claim is not an “adjudication of the merits” of the other.30
30
See, e.g., Shelton v. Marshall, ___ F.3d ___, 2015 WL 4664530 at *7
(reviewing materiality element of Brady claim de novo because state court did not
clearly address it); cf. Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“Because the
state courts found the representation adequate, they never reached the issue of
prejudice, and so we examine this element of the Strickland claim de novo.”);
Porter v. McCollum, 558 U.S. 30, 39 (2009) (same); see also Harris v. Thompson,
698 F.3d 609, 624 (7th Cir. 2012) (collecting cases).
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The content and context of the Nevada Supreme Court’s reference to
Brady materiality rebut the presumption of adjudication here. The Nevada
court’s statement it had “already concluded this information was not material”
(1ER 216), like the ruling of the Tennessee court at issue in Cone v. Bell, supra,
“rested on a false premise” that the court had already passed on the merits of the
claim, when in fact it hadn’t. See 556 U.S. at 466.
As the passage quoted just above makes clear, the state court’s rejection
of this aspect of Browning’s ineffective assistance claim focused on the defense
counsel’s alleged tactical decision not to investigate the bloody prints. 1ER
194-95. Obviously, that has nothing to do with materiality under Brady.
Though a defense lawyer may make “a reasonable, tactical decision” to forego
an investigation that might or might not turn up exculpatory evidence, police
and prosecutors cannot make a “reasonable, tactical decision” not to disclose
such evidence to the defense.
Although the paragraph in which the Nevada court rejected this aspect of
the ineffective assistance contains the passing phrase “this information was not
material” (1ER 194), that cannot be an adjudication of Brady materiality. The
test for materiality under Brady is whether “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Bagley, 473 U.S. at 682. The Nevada Supreme
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Court applied that test to other aspects of Browning’s Brady and ineffective
assistance claims (1ER 194, 215, 216), but said nothing of the kind with regard
to the bloody shoeprints. Compare 1ER 194-95, 216.
Moreover, the Brady/materiality question turns in part on the likely
impact of “disclosure of the suppressed evidence to competent counsel ….”
Kyles, 514 U.S. at 441. The Nevada Supreme Court never came close to
considering that. The oblique cross-reference to its conclusory use of the word
“material” in a different context therefore should not be treated as an
adjudication of the merits of the Brady materiality issue under §2254(d).
b.
If the Nevada Supreme Court’s statement was an
adjudication of the merits of Brady/materiality, it was an
unreasonable application of clearly established Supreme
Court law on that subject.
If the Nevada Supreme Court’s postconviction opinion was an
adjudication of the merits of the Brady/materiality issue, it was contrary to
clearly established law. As noted above, it did not include any consideration of
the likelihood that disclosure of the truth about the shoeprints would have led to
a different result—alone or developed by competent counsel. Nor did it
consider the impact it would have had on the jury together with the other
undisclosed and undiscovered exculpatory evidence. See 1ER 194-95, 216.
That is what Kyles requires; and it is what the Nevada Supreme Court did in
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addressing some of Browning’s other Brady and ineffectiveness claims.31
“[W]hile the state court initially identified this as the correct legal principle for
determining whether suppressed evidence was material, its statements …
dismissing the materiality [of this evidence] … miss the point.” Goudy v.
Basinger, 604 F.3d 394, 400 (7th Cir. 2010).
The materiality of this nondisclosure under Brady is not reasonably
diminished by the statement that defense counsel’s “reasoning” for not
investigating the prints “remains sound because the bloody shoeprints were
likely left by Mrs. Elsen and/or Coe.” 1ER 195. That was not a finding about
what would have resulted from disclosure and investigation of the prints—and if
it had been, it would be an unreasonable one. The suggestion that the prints
were left by Mrs. Elsen “and/or” Mrs. Coe (1ER 195) is baseless and therefore
31
See 1 ER 219: “Several of Browning's claims establish some prejudicial
effect: the failure of trial counsel to discover and present the evidence that the
victim's description of the perpetrator's hair did not match Browning's hair,
counsel's failure to object to the prosecutor's improper statement linking Browning
to prostitution, the prosecutor's failure to divulge that Wolfe received benefits for
his testimony, and the unfounded inference that the blood on Browning's coat
could have been the victim's. The question is: if we consider these factors
cumulatively, is there a reasonable probability that Browning would not have been
convicted of first-degree murder?” (Italics added.) The state court did not
similarly consider the cumulative impact of a list of facts including the bloody
prints.
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unreasonable under § 2254(d)(2).32 See Wiggins v. Smith, 539 U.S. 510, 528
(2003) (factual assumption without record support unreasonable). Moreover, as
the Supreme Court has explained, speculation about a possible interpretation of
evidence that was not presented to the jury is an unreasonable basis for
determining that the evidence was not material. Smith v. Cain, __ U.S. ___, 132
S. Ct. 627, 630 (2012) (“A reason that the jury could have disbelieved …
undisclosed [evidence] … gives us no confidence that it would have done so.”
[Original emphasis]); see also Kyles, 514 U.S. at 434-35 (“A defendant need not
demonstrate that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict.”).
[S]tatements repeatedly dismissing the materiality of evidence on the
basis that it “does not mean that [the defendant] … was not the other
shooter,” miss the point.… [These] statements … would require that
[the defendant] … prove the new evidence necessarily “would have”
established his innocence. Placing this burden on [the defendant]
32
As the District Court noted, the available evidence on the subject
suggests “that the bloody shoeprints likely were not left by Mrs. Elsen or Mrs.
Coe.” 1ER 25 (emphasis added). No witness testified the prints were made by
Mrs. Elsen or Mrs. Coe and the prosecutor never so argued at trial. “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.” Miller-El v. Cockrell, 537 U.S. 322, 345 (2003) (quoting Norris
v. Alabama, 294 U.S. 587, 594-595 (1935)). The bloody prints were of mansized tennis shoes (1ER 27), and they “led away from the bloodstained areas
towards the east, front door” (1ER 27; 3ER 637), while Mrs. Elsen and Mrs. Coe
both left out the back. 3ER 661, 666, 692,695. Moreover, forensic examination
submitted in federal habeas without objection confirmed the prints were not
made by either of the women. 6ER 1654-1659.
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…was “diametrically different,” Taylor, 529 U.S. at 406, than the
clearly established principle laid out in Kyles, 514 U.S. at 434, Bagley,
473 U.S. at 682, and Agurs, 427 U.S. at 112-14.
Goudy, 604 F.3d at 400; accord, Paradis v. Arave, 240 F.3d 1169, 1177 (9th
Cir 2001). If what Officer Branon saw had been disclosed, the prosecutor
no doubt would have tried to come up with an argument to discount its
significance. Even if the jury could have accepted some such argument, it
cannot be said that the jury necessarily would have done so, considering the
bloody shoeprints “in the context of the entire record,” Agurs, 427 U.S. at
112. The Nevada courts never purported to say otherwise.
As we show in Part I B 4 below, if the Nevada court had applied the
proper constitutional analysis, it could not reasonably have failed to
conclude that this nondisclosure, combined with all the other defects in this
trial, undermines confidence in Paul Browning’s conviction. But the
Nevada Supreme Court didn’t conduct that analysis, so its decision rejecting
this claim is not entitled to deference.
3.
The District Court erroneously deferred to the Nevada Supreme
Court’s disposition of this claim and added error of its own.
Without regard to the above, the District Court summarily dismissed
Browning’s Brady claim on the ground that the Nevada Supreme Court’s
rejection of it was “reasonable.” 1ER 26. As we have just shown, that
deference was misplaced. And the District Court compounded that error by
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adding rationales of its own for rejecting this Brady claim: that Branon’s
testimony about the prints “was not given until the evidentiary hearing in 1999,
fourteen years after trial”; that the “information does not appear in Officer
Branon’s three-page police report”; and that “there is no credible evidence that
Officer Branon told anyone this information before the 1999 evidentiary
hearing.” 1ER 26-27.
The first two of these points support Browning’s Brady claim rather than
undermines it. Many, if not most, Brady claims involve important facts left out
of police reports and only revealed long after trial. See note 27, above. The
third point reflects an equally fundamental misunderstanding of the law this
Court recently summarized in another habeas case from Nevada:
To satisfy its duty [under Brady], the State must disclose evidence
known to the prosecutor as well as evidence “ ‘known only to police
investigators and not to the prosecutor.’ ” [Strickler v. Greene, 527
U.S. 263 (1999)] at 280–81 (citing Kyles v. Whitley, 514 U.S. 419,
438 (1995)). Thus, the prosecutor has an obligation “to learn of any
favorable evidence known to the others acting on the government's
behalf in [the] case, including the police.” Id. at 281 (citing Kyles, 514
U.S. at 437).
Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir 2015); see also Carrillo v. Los
Angeles, __ F.3d __, 2015 WL 5024010 (9th Cir Aug. 26, 2015) (holding that
clearly established law in 1984 “compelled prosecutors to disclose evidence
favorable to the accused, even when that evidence was known only to the police
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and not to the prosecutor.” [quoting Jackson v. Brown, 513 F.3d 1057, 1074 (9th
Cir 2008)]).
It is undisputed that the exculpatory evidence here—the fact the bloody
shoeprints were there before the first responders—was known to Officer Branon, at
least. Officer Branon’s testimony that he told the “detail detectives” at the scene
and “would have” told Spec. Horn, was undisputed; and there is circumstantial
evidence that prosecutor Seaton knew about it, as well. See Argument I C, below.
But as the passage quoted just above makes clear—and as the State conceded in
argument to the Nevada Supreme Court—none of that was necessary to establish a
Brady violation. The undisputed fact that one officer knew was enough. The
District Court was wrong to rule otherwise.
4.
On the entire record of this case, there is at least a reasonable
probability that disclosure of the truth about the bloody
shoeprints would have led to Browning’s acquittal.
The only remaining question is materiality. The answer to that question is
the same whether reviewed de novo or through the lens of AEDPA deference.
When the truth about the bloody shoeprints is considered with all the other
exculpatory evidence kept from the jury at trial, and balanced against the
evidence of guilt, no fair-minded jurist could have confidence in the accuracy of
the verdict in this case. That is the ultimate test of materiality. See Kyles, 514
U.S. at 436; Jackson, 513 F.3d at 1076.
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By itself, bloody shoeprints that are not the defendant’s left at a murder
scene at a time when no one was there but the murderer could give rise to
reasonable doubt in almost any case. But it is only one of many reasons to
doubt Paul Browning’s guilt that his jury never heard. Weighed together,
against the scant and questionable evidence implicating Browning, there is much
more than a reasonable probability the result of this trial would have been
different if this evidence had been disclosed.
a.
The evidence of Browning’s guilt presented at trial
was far from overwhelming.
In upholding Browning’s conviction on appeal, the Nevada Supreme
Court found several constitutional errors insufficiently prejudicial on the ground
the evidence of guilt was “overwhelming.” 1ER 210-13, 270, 272. Its appellate
opinion did not say what evidence led it to that conclusion, but during oral
argument the questions from the Justices pointed to Josy Elsen’s alleged
identification, the fingerprint in the store, the knife, and the “bloodstained
garments.” 4ER 1034, 1037-38. In its habeas appeal opinion—after it was
proved that the victim’s blood was not on the only “bloodstained garment”
allegedly linking Browning to the murder, the tan jacket—the Nevada court
repeated its statement from direct appeal that the evidence was “overwhelming”
and specified four things: Browning’s “fingerprints at the crime scene,
identification by three witnesses placing him at or near the crimes, his
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admissions of guilt to the Wolfes, and his presence in a hotel room surrounded
by the stolen jewelry.” 1ER 219; see also 1ER 153.
On its face, this evidence pales in comparison to that which courts have
properly found strong enough to render a Brady violation harmless.33 To the
contrary, most of it is the very type of evidence that has been shown to be most
commonly associated with erroneous convictions. See note 1, above.
The identification testimony
“[R]esearch shows that eyewitness identifications are highly unreliable,
especially where the witness and the perpetrator are of different races.”
Kozinski, Criminal Law 2.0, 44 GEO. L.J. at iii (footnotes omitted);
33
Compare, e.g., Runningeagle v. Ryan, 686 F.3d 758, 770-71 (9th Cir
2012) (“police found [defendant’s] palm print on the clothes dryer next to the
victims' bodies and matched [his] shoes with the bloody shoeprints found at the
house;” “[defendant] discussed the crimes several times before his arrest and told
his girlfriend … whom he showed … the property stolen from the [victims] …
that ‘he had been in a fight with two people and had hit them “full-force;”’” [w]hen
the police arrested [him] … they found the … stolen property;” a codefendant
testified and described his crime in detail; and the undisclosed evidence would “not
[have] materially detracted from the overwhelming evidence of …guilt”);
Hamilton v. Ayers, 583 F.3d 1100, 1110-1112 (9th Cir 2009) (defendant bought
murder weapon, had insurance motive, two coconspirators testified he hired them
to commit murder, and “[t]he suppressed evidence and possible falsehoods
pertained to the details of collateral matters with which the jury was well
acquainted.”); Hendricks v. Zenon, 993 F.2d 664, 667-68 (9th Cir 1993) (victim
told police defendant assaulted her; police found defendant with car matching
description, “blood spatters and a tire iron with blood on it in the car,” and matched
tire prints to the scene).
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“[E]yewitness recollections are highly susceptible to distortion by post event
information or social cues.” Perry v. New Hampshire, 132 S. Ct. 716, 739
(2012) (dissenting opinion).
Erroneous eyewitness identifications are one of
the most common causes of wrongful convictions. See note 1, above.
There were three identification witnesses in this case—other than the
victim’s widow, Josy Elsen, whom the State later conceded never really
identified Paul Browning. See page 54, below. All three witnesses (like Mrs.
Elsen) were white, and Browning is African American. All three first saw
Browning in a one man show-up the Nevada court acknowledged may have
been “suggestive.” 1ER 273. Two of the three witnesses—one of whom said
she thinks black people “all look the same,” see 3ER 684—said Browning was
the man they saw outside the store after the murder. The third witness said he
saw someone else—whom he said was a “Cuban”—in front of the store, a few
minutes before the crime. 3ER 835.
This was hardly a component of “overwhelming evidence.” Any juror or
judge aware of the facts regarding eyewitness identification—which Browning’s
lawyers put on in state habeas (5ER 1156ff), but the Nevada Supreme Court
ignored—would give this little weight.
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Browning’s alleged admissions
The Wolfes’ uncorroborated testimony that Browning admitted the crime
was only as good as their word. Even the Nevada Supreme Court acknowledged
that there were many reasons to doubt the Wolfes’ credibility. 1ER 215-16. In
addition, as discussed below, the Wolfes were later revealed to be long time
police informers who profited by their testimony. See Argument II, below.
“Serial informants” are another of the most common causes of wrongful
convictions. Kozinski, 44 GEO. L.REV. at xxx; note 1, above. The record is
replete with evidence suggesting the Wolfes—much like the informant-witness
“Beanie” in Kyles, see 514 U.S. at 429-30—were themselves involved in the
crime, along with their nameless “Cuban” associate. An alleged admission
testified to by such a witness hardly adds anything to an “overwhelming” case
for guilt.
Browning and the jewelry
The Wolfes testified that they had left Browning in their hotel room, alone
with some of the stolen jewelry, before they brought the police there. See 3ER
756-61, 814. When the police kicked in the door, Browning and the jewelry
were there, but none of the jewelry was on or near his person, none bore his
fingerprints, and none was in his room when the police later searched it. See
page 7-8, above. The fact he was in the Wolfes’ room with the jewelry was as
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consistent with the possibility he was framed by the Wolfes as with the
prosecution’s contention he was the murderer. Circumstantial evidence
consistent with both innocence and guilt hardly makes an “overwhelming”
prosecution case.
The fingerprints in the store
The only objective evidence linking Browning to the crime scene was
testimony that two of his fingerprints—along with some 23 others—were found
in the store. But fingerprints, too, can be much less probative than they seem.
See Kozinski, 44 GEO. L.REV. at iv. The prints here were in a place a customer
in the store could reach; and there was no way to tell when they were made.
5ER 1234-37. Forensic testimony submitted below without objection debunked
the prosecution’s claim that the prints were in a place where customers (which
Browning admitted he had been) could not reach. 6ER 1235-1237.
Inconsistent cross racial identifications, the testimony of two apparently
involved police informants, and inconclusive forensic evidence hardly add up to
“overwhelming” proof of guilt. That is probably why prosecutor Seaton focused
his final argument to the jury on the later-discredited claim that the victim’s
blood was on Browning’s jacket. 3ER 899-900. The rest of the prosecution’s
evidence provides little reason for confidence in the jury’s verdict, in light of the
truth about the bloody shoeprints. That would be so, even if that had been the
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only later-exposed flaw in the prosecution’s case. But it wasn’t; there were
many more.
b.
The facts now known provide numerous new reasons to
doubt the reliability of Browning’s conviction.
The list of additional reasons to have grave doubts about the jury’s
verdict, found and developed since Browning’s trial, is long.
Contrary to what the jury was told, there was no blood or
trace evidence on Browning’s person or clothes.
“The materiality of evidence ‘is best understood by taking the word of the
prosecutor.’” Shelton, 2015 WL at *9 (quoting Kyles, 514 U.S. at 444 and
citing Banks, 540 U.S. at 700, and Horton v. Mayle, 408 F.3d 570, 579 (9th Cir
2005)). Prosecutor Seaton’s dramatic rebuttal argument to the jury made clear
the central importance of the false claim that “Hugo Elsen’s blood” was on a
jacket Paul Browning wore: He said the jury should convict in “five minutes”
based on that alone. See 3ER 899-900. The argument was crucial because
common sense and forensic experience indicate a person who stabs another six
times is likely to have the victim’s blood on him—and except for the alleged
spot of Mr. Elsen’s blood on the jacket, which the State has now conceded was
not Mr. Elsen’s (1ER 257-67), Paul Browning had none.
When the post-trial revelations about the bloody shoeprints and the blood
on the jacket are weighed against the scant evidence of guilt, there can be little
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confidence in the jury’s verdict in this case. But there are many more reasons to
doubt it than those.
Contrary to what the jury was told, the victim said the killer’s
hair was “loosely curled,” “shoulder length” and “wet
looking,” and none of those phrases fit Browning.
“There is no more dramatic circumstance in a criminal case … than when
the victim … manages to identify the murderer before dying.” 34 It is hardly less
dramatic when the victim gives a description of the killer that does not match the
accused. Hugo Elsen’s dying description of his murderer did not match Paul
Browning, in a key and most vivid respect: he said the killer’s hair was “loosely
curled,” “shoulder length,” and “wet looking.” 1ER 45; 6ER 1461-1462. That
description pointed away from Browning (who had a full “Afro” haircut that
was neither loose, nor wet looking, nor shoulder length, see page 7) and toward
the Cuban associate of the Wolfes who the defense said committed the crime.
But obfuscation by the prosecution and the ineffectiveness of defense counsel
combined to keep both the source of the description and the words used from
Browning’s jury. See pages 77-78, below.
34
T. Ryan, “The Case of the Dying Declaration,” THE SENTINEL 5/29/14
(http://www.thesentinel.com/mont/index.php?option=com_k2&view=item&id=46
9:the-case-of-the-dying-declaration&Itemid=752, last visited 9/9/15).
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Contrary to what the jury was told, the victim’s widow never
identified Browning as the murderer.
Lay jurors give unjustified credence to eyewitness identification
testimony.35 The prosecution in Browning’s case took full advantage of this
with regard to the alleged identification testimony of Josy Elsen, the widow of
the victim. As quoted above, Seaton told the jury in closing “she pointed over at
Mr. Browning and she said—points right at him—‘That’s the man who was
kneeling over my husband’…. That identification is as good as you can ask for.”
3ER 868. That conclusion was not true and no reasonable lawyer could have
believed it to be true. See pages 17-18, above. Indeed, when in state habeas
Browning asked for appointment of an expert to confirm it was not true, the
prosecution admitted “Ms. Elsen did not positively identify defendant.” See
2ER 314, n.11; 2ER 563-64 and n.6 (quoting Dkt. 59-163 at 14-16). So the jury
was misled about this as well—and so were the Nevada Supreme Court Justices
who relied on Mrs. Elsen’s testimony to uphold Browning’s conviction on
appeal. 4ER 1037-38.
35
“[J]urors routinely overestimate the accuracy of eyewitness identifications
….” Perry, 132 S. Ct. at 739 (dissenting opinion of Justice Sotomayor) (footnotes
omitted); accord, Kozinski, 44 GEO. L.J. at iii; see note 1, above; 5ER 1156ff.
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The state’s two “star” witnesses, Randall and Vanessa Wolfe,
were police informants who had the jewelry from the robbery
and profited from their testimony against Browning.
Vanessa and Randall Wolfe were the kind of “’make-or-break’
witness[es]” whose “testimony was the centerpiece of the prosecution's case”
because “nearly all of the other evidence against [the defendant] … was
circumstantial.” Maxwell v. Roe, 628 F.3d 486, 508 (9th Cir 2010). The Wolfes
were the only witnesses who testified that Browning confessed to the crime, and
a ‘“confession is probably the most probative and damaging evidence that can
be admitted’” against a criminal defendant. Doody v. Ryan, 649 F.3d 986, 1023
(9th Cir 2011) (quoting Arizona v. Fulminante, 499 U.S. 279, 296 (1991)). All
the stolen goods were in the Wolfes’ hotel room, and the Wolfes claimed the
jewelry they belatedly handed over to police was hidden by Browning (3ER
762-63), and Vanessa Wolfe gave police the knife that was supposedly the
murder weapon and a cap which the prosecution said the murderer wore. 1ER
142, 189.
The prosecution therefore had the Wolfes tell the jury over and over they
had nothing to gain and were not being rewarded for their testimony. See 3ER
785-787, 827-828. But it was not true—as the Wolfes, who both were
experienced police informers, doubtless knew. In its opinion on Browning’s
postconviction appeal, the Nevada Supreme Court acknowledged:
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At trial, [Randy] Wolfe denied receiving or expecting any benefits
for his testimony. However, at that time 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; he also admitted that he later
helped Wolfe acquire a job.
1ER 215; see page 16, above; Argument II, below. Vanessa Wolfe, too, was “a
defendant in a separate criminal prosecution” while she was acting as a witness
against Browning. In fact, she was arrested some ten times for prostitution and
once for assaulting a police officer—but all the prostitution charges were
dropped and the assault was reduced to a misdemeanor and a fine, after she
testified against Browning. See 2ER 345-46; 6ER 1550-1569; page 17, above.
Again, Browning’s jury knew none of this—another reason there can be
no confidence in their verdict in light of what has now been disclosed.
Contrary to what the jury was told, the knife the prosecution
claimed was the murder weapon was not linked to the crime.
Any murder prosecution is hampered without a murder weapon. The
prosecution was able to compensate for that problem in its case with a knife
given to police by Vanessa Wolfe, which she said Paul Browning gave her. 1ER
189; 3ER 807-09. Forensic examination of the knife found no blood or trace
evidence tying it to the murder, or to Browning, but based on testimony that Mr.
Elsen’s wounds were consistent with that having been made by that knife
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(among any number of others, see 2ER 315-16) prosecutor Seaton told the jury
it was “a terribly incriminating piece of evidence.” 3ER 873.
Browning’s trial counsel Randall Pike did not consult or present the
testimony of a forensic expert (or any other kind of expert) regarding this
allegation (or any other). However, in the District Court, Browning’s federal
defenders submitted an expert declaration36 that concluded, based on autopsy
photographs, the pathologist’s testimony and an examination of the knife, that
the “wounds sustained by Mr. Elsen do not coherently coincide” with its shape
and dimensions. 6ER 1665-66.37 He also noted the absence of trace evidence,
or evidence of cleaning, that would be expected if the knife was used in a
stabbing. Id.; see note 12, above. That is yet another reason to doubt
Browning’s guilt which his jury never heard.
Contrary to what the jury was told, the Casio watch with
Browning’s thumbprint on it was not taken in the robbery.
There was no forensic evidence tying Browning to the stolen jewelry,
either. See pages 8-9, above. But the prosecutor had a solution for this
problem, as well: Browning’s thumbprint was on a Casio watch that was in the
36
Because the materiality issue was not adjudicated by the state court,
consideration of this additional evidence in federal habeas was not precluded by
Cullen v. Pinholster. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir 2014).
37
According to the autopsy, one of the wounds was 5 inches deep. 6ER
1636. The knife Vanessa Wolfe gave police was only 3 ½ inches long. Id.
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room where he was arrested. See 3ER 617, 871. The watch was never admitted
into evidence because there was no proof it was stolen—and in fact, it was
obviously used and had only half a wristband. See 2ER 400-401, 563; Dkt. 59150, p. 24. That did not prevent prosecutor Seaton from putting it near the top
of his list of evidence he claimed proved Browning guilty, and saying “if there is
anyone who doubts as to whether or not he at least handled those items of
jewelry, we know that he did because his fingerprints was [sic] on the Casio
watch.” 3ER 871. But as the Nevada Supreme Court later acknowledged, the
“watch … was never linked to the crimes.” 1ER 210.
So while the prosecution claimed that Browning took the jewelry out of
its case, carried it to the Normandy Hotel, and removed sales tags from it (along
with Vanessa Wolfe), his fingerprints were not on a single piece of the stolen
jewelry—just this one old, broken watch. That is another reason confidence in
this verdict cannot be maintained.
Contrary to what the jury was told, Browning had no heroin in
his system on his arrest, and Marsha Gaylord was not in jail.
“When identity is in question, motive is key.” House v. Bell, 547 U.S.
518, 540 (2006). The prosecution’s motive theory was “Browning committed
the robbery to bail his girlfriend, Marsha Gaylord, out of jail so she could
prostitute herself and give him the proceeds to purchase drugs.” 1ER 193; see
3ER 855. The source of this unsavory story—which was sure to prejudice
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Browning in the all-white jury’s eyes—was Randy Wolfe. 3ER 753-55. Wolfe
testified he knew this was so because Browning told him that was why he
committed the robbery, and Browning had been trying to bail Gaylord out “prior
to that a couple of days.” 3ER 755. This not only supplied motive but gave the
prosecution an opening to tie Browning to drugs and prostitution—which it did,
though the Nevada Supreme Court said the reference to prostitution was
“improper” (1ER 198) 38 and Browning’s lawyer failed to object. Id.
Again, the prosecution’s argument was built on demonstrable falsehoods.
Marsha Gaylord had only been arrested late the night before the murder—not a
“couple of days” prior, as Randy Wolfe said—and she got out of jail the next
morning. See 6ER 1593. And Browning—who Wolfe said was hopelessly
addicted, and who Seaton told the jury “shot the life of Hugo Elsen right up his
arm” (3ER 847)—had no heroin in his system at the time of his arrest. See page
21, above.
The Nevada Supreme Court shrugged all this off, saying “Browning's
precise motive for the crimes was not crucial to the State's case.” 1ER 193. But
whether motive was “key,” as the Court said in House said, or “not crucial,” it
was something to which a reasonable juror could, and likely would, give weight.
The Nevada Supreme Court found there was “no evidence that Browning
was involved in pimping or pandering prostitution.” Id.
38
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And the “precise motive” that Wolfe came up with enabled the prosecution to
appeal to the racial fears and stereotypes of an all white jury.39 These untruths,
and the potential appeal to race prejudice they carried, are still more reasons
confidence in this verdict cannot be maintained. 40
Marsha Gaylord could have explained Browning’s fingerprints
in the jewelry store.
Marsha Gaylord appears to be the only potential witness defense counsel
Pike actually interviewed before trial. 5ER 1275. Pike testified that Gaylord
was prepared to be a witness before the prosecution got its trial continuance, and
she would have testified that she and Browning were in the jewelry store a day
prior to the homicide, explaining the presence of his fingerprints there. 5ER
1276-77. Gaylord would have also testified the Wolfes were acquainted with a
39
See 2 ER 385 and n.44; 3ER 604 (“[T]hey would send their wives or
girlfriends out for prostitution and shoot heroin in their arms;”); 3 ER 855: (“This
man whose girlfriend prostituted for him;” “[T]he way to get drugs was to have
Marsha Gaylord out of jail so that he she [sic] could go out on the streets … and
get the money that way.”)
40
The fact Seaton made this racially provocative, false argument to an all
white jury is another aspect of “the context of the entire record,” Agurs, 427 U.S. at
112, that should be considered, particularly in light of the growing evidence of “the
potential role of race effects” in wrongful convictions. J. Gould and R. Leo, 100 J.
CRIM. LAW & CRIM. at 841. See e.g., M. Johnson, et al., “African Americans
Wrongly Convicted of Sexual Assault Against Whites: Eyewitness Error and Other
Case Features,” J. OF ETHNICITY IN CRIM. JUST. Volume 11, Issue 4 277-294
(2013); Johnson, M.B. Sex, Race, & Wrongful Conviction, THE CRIME REPORT,
10/03/13 http://www.thecrimereport. org /news/ articles /2013-10-sex-race-andwrongful-conviction (last visited 9/9/15).
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black Cuban male who had shoulder length jeri-curl style hair. 5ER 1280; 6ER
1637-1638. And she could have confirmed that (as records later showed) she
had not been in jail for any length of time before the day of the murder and was
released that morning. 2ER 328; 6ER 1593; 6ER 1638.
Defense counsel Pike—a former prosecutor—testified in the state habeas
hearing Gaylord’s testimony would have been “potentially exonerating” (5ER
1282), but she left town after the prosecution’s continuance and was
unavailable. Whether that was attributable to counsel’s ineffective failure to
secure her presence or the prosecutor’s subterfuge to obtain a continuance (2ER
325, 361), should be considerated in the prejudice calculus.
The prosecutor argued that the presumption of innocence is a
“farce” and a “facade.”
Because the ultimate question is one of confidence in the verdict, “[t]he
context of the entire record” in which materiality is evaluated, Agurs, 427 U.S.
at 112, should include the way the jury was told to reach that verdict.
Browning’s jury was told by prosecutor Seaton that the presumption of
innocence is a “façade,” and he had shown “the farce of that presumption” in
this case. 1ER 63. We submit below that these statements, which the Nevada
Supreme Court correctly called “outrageous” (1ER 272n1), were sufficiently so
to warrant habeas relief by themselves. See Argument V B. But even if not,
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they provide another reason there can be no confidence in the integrity and
reliability of Browning’s conviction.
c.
In light of all known the evidence now of record, disclosure of the
bloody shoeprints would have produced a different result.
It is a rare, lucky defense counsel who can tell a jury in a murder case:
“These must be the killer’s bloody footprints, and they are not my client’s.” Or:
“The victim gave a lucid description of the killer that my client didn’t match.”
Or: “This was a violent and bloody crime and there was no trace of blood or
anything on my client.” Or: “The victim’s blood on the jacket which the
prosecutor told you convicts my client by itself isn’t the victim’s at all.” Or:
“The witnesses who say my client did this are long time police informers who
were the ones who actually had and kept the stolen jewelry, and they tried to
frame another man by giving police a knife just last spring.”
Paul Browning’s defense counsel should have been able to say, and to
prove, not just one of these things, but all of them, and more. But he couldn’t
and he didn’t—because of the prosecution’s concealment and his own
ineffectiveness. All this must be considered in determining whether confidence
in the jury’s verdict in this case reasonably can be maintained. Considering it
all, it cannot be.
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C.
The fact the bloody shoeprints were present before police and medics
entered the crime scene requires the writ to be granted, or a hearing
held, on Browning’s Napue claim.
Although Browning also claimed in state habeas that the prosecution’s
testimony and argument about the bloody shoeprints violated the separate due
process principles of Napue (see 1ER 101), the state courts did not address that
claim. Accordingly, they made no findings regarding whether Officer Branon
told Spec. Horn about when he saw the shoeprints, or whether prosecutor Seaton
knew the truth about when the prints were made. Because of that, those issues
are subject to de novo review in federal habeas, and the evidentiary restrictions
of 28 U.S.C. §2254(d)(2) don’t apply to Browning’s Napue claim. See Amado,
758 F.3d at 1130; Murray, 745 F.3d at 1000 (“After Pinholster, a federal habeas
court may consider new evidence only on de novo review…”)
The petition below alleged that both Spec. Horn and prosecutor Seaton
knew what Branon saw (see 2ER 338-39) and Browning moved for discovery
and an evidentiary hearing to support that allegation. 2ER 304, 500, 581. But
the District Court dismissed the claim summarily, holding that the Nevada
Supreme Court’s rejection of the claim was “reasonable.” 1ER 27-31.
That was plainly error. The Nevada courts never adjudicated this claim—
and if they had, on this record they could not have rejected it without
contravening or unreasonably applying established Supreme Court law.
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1.
The Napue claim turned on different factual issues and a different
prejudice standard from the Brady claim.
The due process principles of Napue are different from, and older than,
those of Brady v. Maryland. Napue holds “a conviction obtained through use of
false evidence, known to be such by representatives of the State, must fall under
the Fourteenth Amendment” and “[t]he same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected when it
appears.” 360 U.S. at 269.
“False impressions” as well as outright lies violate Napue’s due process
principles. See Hayes v. Brown, 399 F.3d 972, 983 (9th Cir. 2005) (discussing
Alcorta v. Texas, 355 U.S. 28 (1957)); see also Miller v. Pate, 386 U.S. 1 (1967)
(due process violated by references to “bloody shorts” when prosecutor knew
stains on shorts were paint). So does testimony that a prosecutor should have
known was false through reasonable investigation.
Napue applies whenever a prosecution “‘knew or should have known
that the testimony was false.’ ” Hayes v. Brown, 399 F.3d 972, 984
(9th Cir2005) (en banc) (quoting United States v. Zuno–Arce, 339
F.3d 886, 889 (9th Cir2003)). … [T]he prosecutor has a clear Brady
obligation to investigate whether the police have evidence favorable
to the defendant. Kyles, 514 U.S. at 438…. If the prosecutor has a
duty to investigate and disclose favorable evidence known only to the
police, he “should know” when a witness testifies falsely about such
evidence….
Jackson, 513 F.3d at 1075. Napue’s prejudice standard is significantly different
from Brady’s, as well.
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“In contrast [to a Brady claim], under Napue, … a conviction … is
“set aside whenever there is ‘any reasonable likelihood that the false
testimony could have affected the judgment of the jury.’ ” Although
“Napue does not create a ‘per se rule of reversal[,]’ ” “[w]e have gone
so far as to say that ‘if it is established that the government knowingly
permitted the introduction of false testimony reversal is virtually
automatic.’ ”
Sivak, 658 F.3d at 912 (quoting Jackson and Hayes, 399 F.3d at 985) (original
emphasis).
The Nevada courts never applied Napue or its standards to this claim.
The District Court wrongly deferred to a decision the state courts never made.
2.
The District Court erred by summarily denying the Napue claim.
a.
Substantial evidence indicates that both the prosecutor and
his main police witness knew the truth about the bloody
shoeprints.
There are good reasons to believe that Dan Seaton, the trial prosecutor,
knew the bloody shoeprints were present before police and paramedics arrived.
Seaton testified he made a practice of personally interviewing “all
potentially relevant witnesses prior to trial.” 6ER 1408. 41 It is not plausible that
in such interviews he would not have been told when the bloody prints were
there by Officer Branon, or by any of the other officers who first entered the
crime scene with him, or by Spec. Horn, or by the “detail detectives” Officer
Seaton usually took notes during witness interviews. 6ER 1408.
Browning’s lawyers sought discovery of those notes in the state habeas hearing,
but it was denied and the notes were filed under seal. 5ER 1145-46. They are not
part of the federal court record.
41
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Branon says he talked to about them.
In addition, despite Officer Branon’s central role in the case, Seaton did
not call him as a witness—and when the defense did, Seaton conspicuously
asked him no questions, alone among all the percipient witnesses. See 3ER 833.
That is circumstantial evidence Seaton knew Branon’s testimony could hurt the
State’s case. Cf. Miller-El v. Dretke, 545 U.S. 231, 239-41 (2004) (prosecutor’s
racial motivation can be inferred from comparative juror questioning); Boyd v.
Newland, 467 F.3d 1139, 1144 (9th Cir 2004) (same). That is hardly
implausible: Seaton had an extensive history of prosecutorial misconduct. See,
e.g., Santillanes v. State, 104 Nev. 699, 703, 765 P.2d 1147 (1988) (directing the
District Attorney of Clark County to take action to assure that “Mr. Seaton's
prosecutorial misconduct, so frequently repeated heretofore, does not again
recur.”); Dkts. 71-72 (records of alleged Brady violations by Clark County
District Attorney’s office).
Though we submit it is apparent here, Seaton’s subjective knowledge and
intent to mislead is not essential to this claim. “[T]he duty to correct false evidence
under Napue extends to evidence not known to be false by a particular prosecutor
but known to be false by the government.” Phillips v. Ornoski, 673 F.3d 1168,
1187 (9th Cir 2012) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).
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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.
Jackson, 513 F.3d at 1075 (original emphasis).
Seaton aside, the preponderance of evidence indicates Spec. Horn, the scene
investigator, knew the prints were present before police arrived. Officer Branon
testified he “would have” told Horn and in fact he did tell the “detail detectives” on
the scene, one of whom was Horn. 6ER 1472; see note 24, above. Part of Horn’s
job was to gather information from other detectives and officers on the scene (3ER
627), some of whom would have seen the prints were there before anyone went in,
as Branon did. Yet Horn speculated to the jury that the prints were left by medics
or police, when he knew or should have known otherwise.
The clear preponderance of available evidence shows that Horn knew and
Seaton “knew or should have known,” Hayes, 399 F.3d at 984, that the impression
created by Horn’s testimony about the bloody footprints was false.
b.
The District Court wrongly denied discovery and an
evidentiary hearing on this claim.
To the extent there was any material question about who knew or should
have known the truth about the bloody prints, Browning moved the District Court
to resolve those issues through discovery and an evidentiary hearing. 2ER 304,
500, 581. The District Court denied the discovery motions, saying “the state courts
ruled on th[e] claims” regarding the bloody shoeprints, and the discovery “should
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have been done in state court.” 1ER 129, 132. This was doubly incorrect.
Browning’s state habeas lawyers did seek discovery relevant to the Napue claim—
of Seaton’s interview notes—and it was denied. 5ER 1103, 1145-47. And as
noted above, the state courts never “ruled on” the Napue claim, at all.
Moreover, the relevant inquiry regarding whether Browning should be able
to further develop the factual basis for this claim in federal court was not what his
state lawyers “should have” done, but whether
the applicant “failed” to develop the factual basis for the claim in state
court. In this context, “failed” “connotes some omission, fault, or
negligence on the part of the person who has failed to do something.”
Williams, 529 U.S. at 431–32. If the petitioner is not at fault (as
defined for purposes of § 2254(e)(1)), we evaluate the propriety of an
evidentiary hearing under the factors prescribed by Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other
grounds, Keeney v. Tamayo–Reyes, 504 U.S. 1, 5, 112 S.Ct. 1715, 118
L.Ed.2d 318 (1992). Earp v. Ornoski, 431 F.3d 1158, 1166 (9th
Cir2005).
If the court determines that the applicant did fail to develop the factual
basis for a claim in state court, the district court can hold an
evidentiary hearing only if … the claim … [is] based on facts that
“could not have been previously discovered through the exercise of
due diligence,” §2254(e)(2)(A)(ii) … [and] “the facts underlying the
claim would be sufficient to establish by clear and convincing
evidence that but for the constitutional error, no reasonable fact finder
would have found applicant guilty ….”
Kemp v. Ryan, 638 F.3d 1245, 1258 (9th Cir 2011). Browning asked for leave to
prove that he could meet these standards—that he did not “fail to develop” this
evidence, and that the now-available proof of his innocence is strong enough to
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excuse any such failure if there were one. See 2ER 540, 580. But the District
Court never considered these standards.
c.
There is a reasonable probability that the prosecution’s
misleading testimony and argument regarding the bloody
shoeprints could have affected the verdict.
As noted above, where the prosecution has offered false or misleading
testimony, reversal is the norm, “virtually automatic.” Sivak, 658 F.3d at 912.
Even if that were not true, reversal would be required here. The
prosecution’s false testimony here gutted a powerful defense argument—that the
bloody footprints at the scene must have been the murderer’s, and were not Paul
Browning’s. Though he featured this fact in opening, defense counsel virtually
abandoned it after Horn’s testimony—not asking Branon or any witness about it,
and retreating to a lame criticism of the police investigation on the subject in
closing. Compare 3ER 622-23 with 3ER 880-81.
Particularly in light of the weakness of the prosecution’s case (see pages 4853, above), and in light of the many other now-available reasons to doubt
Browning’s guilt (pages 53-65, above), the probability that the false testimony
“could” have affected this verdict cannot be dismissed.42 It requires reversal of
Paul Browning’s conviction.
42
The Nevada Supreme Court’s speculation that the footprints could have
been made by Mrs. Elsen or Ms. Coe is irrelevant to the Napue issue, not only
because the available evidence refutes it (see note 32, above), but also because that
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II.
BROWNING WAS DENIED DUE PROCESS WHEN THE
GOVERNMENT CONCEALED EXCULPATORY INFORMATION
REGARDING THE CREDIBILITY OF RANDALL WOLFE.
The Nevada Supreme Court called Randall Wolfe “an important witness for
the State” and said he and his wife Vanessa were “the State’s key witnesses.” 1ER
195, 215. That was certainly true.
Randy Wolfe was Browning’s original accuser. He testified for the
prosecution at Browning’s preliminary hearing and trial. 3ER 775. He was also the
sole source of for the prosecution’s allegation that Browning was a heroin addict
(1ER 192), which it said was the motive for the robbery murder and a reason
Browning could not be expected to act like “[y]ou and me.” See 3ER 873.
He claimed that Browning had confessed the robbery and the murder to him,
3ER 750—a claim the prosecution unsurprisingly emphasized in its arguments to
the jury. 3ER 874. Wolfe’s claim that Browning confessed was one of the four
items that the Nevada Supreme Court pointed to in its tally of the “overwhelming”
evidence of Browning’s guilt. See 1ER 219.
Because of that, Wolfe’s credibility, his relationship with the prosecution,
and the incentives he was being given for testifying, were centrally relevant at trial.
Just before trial began, defense counsel moved for a continuance because he had
suggestion was never made at the trial and so cannot impact what “could have
affected the judgment of the jury.”
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learned Wolfe had been permitted to enter a guilty plea to a charge of attempt to
sell a stolen credit card, and suspected a deal. 4ER 931-33. In response,
prosecutor Seaton said “I can tell the Court categorically . . . there has never been
any plea bargaining with Randy Wolfe regarding this case.” Id. pg. 4. So the
continuance was denied. Id.
At trial, Wolfe testified that he had, in fact, been allowed to enter a plea of
guilty to a reduced charge of “attempted” possession of a stolen credit card. 3ER
743. On re-direct, prosecutor Seaton asked Wolfe “Have you ever received
anything for your testimony here today,” “and have I or anyone else indicated to
you that [the five year sentence on the stolen property charge] … might be
diminished in some respect?” 3ER 787. Wolfe answered “no” to both questions.
Id.
In state habeas, however, it came to light that prior to Browning’s trial,
Wolfe was charged with at least two other felonies and several misdemeanors,
which disappeared after he testified. 2ER 342; 6ER 1520, 1545. Also in state
habeas the prosecution acknowledged that “both the Wolfes were informants”
(5ER 1109), and Browning’s lawyers submitted a transcript showing Wolfe’s
sentencing judge said Seaton had told him in chambers that Wolfe had been
“helpful” to him on “several occasions.” 6 ER 1327. Seaton denied this was true
(6ER 1441-42), but he admitted that he had engaged in “off the record plea
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bargaining” with potential informants (6ER 1446-48), and that he did speak with
the sentencing judge in Wolfe’s case after he testified against Browning (6ER
1444).
In fact, it was the very day that Paul Browning was formally sentenced to
death that Seaton met with Wolfe’s sentencing judge, and convinced the judge
Wolfe “deserves something positive” for being “a witness in a recent trial” and
being “somewhat helpful to [Seaton] on several occasions.” 6ER 1527. As a
result, Wolfe got probation, while his codefendants received four and five year
prison sentences, which is what the prosecution had recommended for Wolfe as
well. 6ER 1524-1535, 1542. At Wolfe’s request, Seaton also later facilitated
getting him a job. 6ER 1413.
Based on these revelations, the Nevada Supreme Court held: “[T]he
prosecutor withheld information regarding benefits given to an important witness
for the State, Randall Wolfe. . . 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.” 1ER 215. The state court nonetheless found no
reasonable probability of a different outcome.
Wolfe's credibility was extensively challenged at trial. The jury was made
aware that he had initially kept some of the stolen jewelry in this case for
himself and lied under oath about doing so. On cross-examination, defense
counsel also established that Wolfe had a history of heroin and other illegal
drug use and had used heroin just four days before testifying, had stolen
property and pimped his wife to support his drug use, had three prior felony
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convictions, and still faced sentencing for one of those convictions. Thus,
though the jurors were not told that Wolfe would receive benefits for his
testimony, he was stiffly impeached on other grounds.
1ER 215-16. The court also considered the prejudice issue in light of the
cumulative effect of some—but not all—of the errors at Browning’s trial:
the failure of trial counsel to discover and present the evidence that the
victim's description of the perpetrator's hair did not match Browning's hair,
counsel's failure to object to the prosecutor's improper statement linking
Browning to prostitution, the prosecutor's failure to divulge that Wolfe
received benefits for his testimony, and the unfounded inference that the
blood on Browning's coat could have been the victim's. The question is: if
we consider these factors cumulatively, is there a reasonable probability that
Browning would not have been convicted of first-degree murder? We
conclude that there is no such reasonable probability. The evidence of
Browning's guilt remains overwhelming.
1ER 219. The District Court found these decisions “not objectively unreasonable.”
1ER 37. But they were, for two reasons.
A.
The undisclosed impeachment was not cumulative of what the jury heard.
The fact that a witness is receiving benefits for his testimony is uniquely
impeaching. See, e.g., Maxwell v. Roe, 628 F.3d 486, 510 (9th Cir 2010), quoting
Benn v. Lambert, 283 F.3d 1040, 1058 (9th Cir 2002) (“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.”).
Undisclosed evidence about a witness’ history as an informant has a separate
impeachment value. Banks, 540 U.S. at 698; United States v. Shaffer, 789 F.2d
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682, 688-89 (9th Cir 1986); see also Maxwell, 628 F.3d at 511 (quoting Benn, 283
F.3d at 1058). This is particularly so here, because the fact Wolfe was an
informant gave credence to the defense theory that the police ignored the signs that
they were involved in the murder, and let them get away with it.
The Nevada court was clearly correct that the reward given Wolfe should
have been disclosed. The fact he had been an informant for Seaton and the police
should have been as well.
B.
The Nevada Supreme Court unreasonably held the failure to disclose
evidence impeaching Randy Wolfe’s credibility was not prejudicial.
Although it correctly recognized that the prosecutor’s rewards to Randy
Wolfe should have been disclosed, the Nevada Supreme Court unreasonably found
no prejudice.
It is long since clearly established that impeachment evidence is material and
not cumulative if it is “of a different character than evidence already known to the
defense.” United States v. Wilkes, 662 F.3d 524, 535 (9th Cir 2011) (citing United
States v. Kohring, 637 F.3d 895, 904 (9th Cir 2010)), and “‘would have provided
the defense with a new and different ground of impeachment,’” Silva v. Brown,
416 F.3d 980, 989 (9th Cir 2005) (quoting Benn, 283 F.3d at 1056). See also
Banks, 540 U.S. at 702–03; Shelton v. Marshall, 2015 WL 4664530 at *11
(AEDPA case); Gonzalez v. Wong, 667 F.3d 965, 984 (9th Cir 2011), cert. denied
133 S.Ct. 135 (2012) (same); Sivak, 658 F.3d at 915; Jackson, 513 F.3d at 1077.
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Unsupported speculation by defense counsel, or even evidence that a witness is
hoping for a reward from the prosecution, is no substitute for proof he is actually
getting one. See Jackson, 513 F.3d at 1077; Phillips, 673 F.3d at 1196.
Although the jury was told that Randy Wolfe was a drug addict with a
criminal record, and defense counsel insinuated he was an informant and was
hoping for leniency in his upcoming sentencing, the jury was never told about
Seaton’s practice of “off the record” plea bargaining, or his intention to put in a
word with Wolfe’s sentencing judge, or what that word would be. In fact, Wolfe
was facing five years or more in prison but got probation. This was much stronger
impeachment than anything Browning’s defense counsel managed to muster.
Given Randy Wolfe’s uniquely central role in the prosecution’s case—
accuser, alleged confessor, possible suspect, possessor of the stolen goods—a
thorough evaluation of his credibility could not have been more important. The
prosecution’s failure to disclose this impeachment of him, considered in light of all
the things that undermine confidence in this verdict (including the truth about the
bloody shoeprints, which the Nevada Supreme Court left out of its analysis) could,
with reasonable probability, have led to a different verdict in this case. The
District Court erred in holding otherwise.
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III.
BROWNING WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL BY HIS TRIAL LAWYER’S FAILURE TO
INVESTIGATE AND PREPARE FOR TRIAL, WHICH ALLOWED
THE JURY TO BE MISLED REGARDING THE SOURCE OF THE
BLOODY SHOEPRINTS, THE VICTIM’S DESCRIPTION OF HIS
MURDERER, THE ALLEGED MURDER WEAPON, AND THE
CREDIBILITY AND INVOLVEMENT OF BROWNING’S PRIMARY
ACCUSERS.
Browning’s Amended Petition made a single claim regarding his trial
counsel’s pretrial investigation and preparation: “Petitioner’s court appointed
trial counsel, Randall Pike, failed to do the investigation necessary to confront
the prosecution‘s case or to prepare and present the defense case at trial.” 2ER
306ff. That was the same claim made in state habeas: “Browning claims first
that his trial counsel failed to properly investigate the facts of this case.” 1ER
192. Over objection, the District Court treated this not as a single claim but as
an assemblage of separate criticisms of the harm caused by trial counsel’s
failure. 1ER 93, 94-99. It denied relief on each of the separate parts of the
claim it identified, but granted a Certificate of Appealability on three of them.
1ER 74.
In this Brief, Petitioner moves to expand the Certificate to include his
entire trial level ineffectiveness claim, as it was made. See Argument VI,
below. Even as it was viewed by the District Court, relief should be granted on
the basis of those three aspects of the ineffectiveness claim.
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A.
Browning’s court appointed trial counsel failed to do basic
pretrial investigation.
Sixth Amendment ineffective assistance of counsel claims are governed
by Strickland v. Washington, 466 U.S. 668 (1984). “Under Strickland … we first
determine whether counsel's representation ‘fell below an objective standard of
reasonableness.’ Then we ask whether ‘there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different.’” Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014) (quoting
Padilla v. Kentucky, 559 U.S. 356, 366 (2010) and Strickland, 466 U.S. at 688,
694).
The failure to interview Officer Branon
The Nevada Supreme Court found that defense counsel Pike made several
“unprofessional errors,” one of which involves an aspect of Browning’s
ineffective assistance claim on which the District Court granted a Certificate:
The state court held because Pike “failed to interview … Officer Gregory
Branon” and learn the truth about Hugo Elsen’s description of the murderer,
“trial counsel was deficient, but that this deficiency alone was not prejudicial.”
1ER 193-94. The District Court deferred to this conclusion. 1ER 44. The
finding of deficiency was clearly correct. Failure to interview a key percipient
witness alone can be ineffective, and failure to interview a witness who counsel
knows will testify at trial, because counsel intends to call him, is even more so.
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See Jackson v. Calderon, 211 F.3d 1148, 1160 (9th Cir 2000) (“We assume that
it ordinarily falls below the Strickland level of required competence to put a
witness on the stand without interviewing him"); cf. Rompilla, 545 U.S. at 383
(failure to examine prior conviction file that defense counsel knew the
prosecution would use at trial was ineffective).
Contradictorily, however, the Nevada court held Pike was not ineffective
for failing to learn that Officer Branon saw the bloody shoeprints at the crime
scene before the police or medics entered. 1ER 195. The District Court said
that conclusion was “reasonable” as well (1ER 25), even though it involved the
very same inaction—the failure to interview Officer Branon before calling him
as a witness—which the state court had just found to be “deficient.” 1ER 194.
The Nevada Supreme Court held otherwise regarding the bloody shoeprints,
saying Pike made a “tactical” decision “to leave the source of the prints
uncertain” because he “feared that investigation might establish that the prints
had been left by police or paramedics.” 1ER 194-95.
Even strategic decisions made by defense counsel must be “sound,”
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986), however, and this alleged
tactic makes no sense. The prosecution had its explanation for the shoeprints and
presented it to the jury (through Spec. Horn) two days before Officer Branon
was called to testify. See 3ER 626, 830. The defense had no answer to this, and
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was sure to lose the point without one. There was no reason to believe that if
Officer Branon was simply asked what he saw when he entered Mr. Elsen’s
shop, his answer would further bolster the prosecution’s theory.
Not even Pike, who had no shortage of excuses for his other failings,
claimed that was why he didn’t put that question (or any other) to Officer
Branon, before calling him. What Pike said was that he feared it could backfire
if, for example, he “interviewed the ambulance driver” and “they had shoes that
matched the track.” 5ER 1325. There was no similar danger in asking Officer
Branon to describe the crime scene—and if there had been, it would have been
foolhardy to call him to the stand without finding out about it. “‘[C]ounsel's
anticipation of what a potential witness would say does not excuse the failure to
find out.’” Pavel v. Hollins, 261 F.3d 210, 221 (2d Cir. 2001) (quoting United
States v. Moore, 554 F.2d 1086, 1093 (D.C.Cir.1976)).
For all these reasons, this aspect of the Nevada Supreme Court’s decision
was objectively unreasonable.43 It cannot have been both “deficient” and
43
The Nevada Supreme Court also said that “[a]lthough it is now evident
that the prints were present before police and paramedics arrived, counsel’s basic
reasoning remains sound because the bloody shoeprints were likely left by Mrs.
Elsen and/or Coe ….” 1ER 195. But Pike never said this, all available evidence
contradicted it, and the prosecution never argued it until oral argument in the state
habeas appeal. See 7ER 1691. Moreover, as the District Court noted, all the now
available evidence indicates “that the bloody shoeprints likely were not left by
Mrs. Elsen or Mrs. Coe ….” 1ER 25; see 6ER 1654-59; note 32, above.
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effective to call Officer Branon to the stand without finding out what he might
say. Pike himself never claimed to have made a strategic decision not to do so,44
and such a strategy would have made no sense.
And interviewing Officer Branon was only one of the ways Pike could
have learned, and showed the jury, the true significance of the bloody prints.
Since the prints were there, the other officers who made the first entry must have
seen them too; but Pike never interviewed them, either. Nor did he or his
investigator speak to Officer Horn, whom he knew the prosecution would call to
testify about the scene, and who he knew had knowledge of the prints. See 4ER
1012, 1015; cf. Rompilla, 545 U.S. at 383-84 (counsel has duty to examine
evidence he knows the State will offer at trial). Even if the other officers and
Horn did not admit what they saw, Pike would have learned that Horn was going
to speculate that the prints were made by officers or medics—exploding any
hope he might have had that he could win by trying to avoid the subject, and
eliminating any “tactical” reason not to inquire further of Officer Branon.
44
Pike’s state habeas testimony on this point is revealing of his approach to
Browning’s defense: “In a criminal defense case it is overcasting a shadow of a
doubt, as opposed to proving.” 5ER 1325. That may explain why he told the trial
court he was “ready to go” on February 27, 1986 (4ER 912) when he had done no
investigation at all and spent only 24 hours total on the case. 6ER 1571. It is also
consistent with the fact he spent less than a dozen hours on all types of factual
investigation in the year that ultimately elapsed before trial, didn’t hire or consult
any experts of any kind, and didn’t even fully use the investigative services
available to him. See 3ER 306-08; 6ER 1495, 1510, 1514-5.
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“There are countless ways to provide effective assistance in any given
case.” Strickland, 466 U.S. at 689. No doubt there are a number of other
investigative approaches Pike could have taken that would have uncovered this
fact. The problem is he took none of them, so the truth on this critical point
never came out.
The failure to interview Randall and Vanessa Wolfe
Pike had a different excuse for his failure to interview or investigate the
prosecution’s two key witnesses, Randall and Vanessa Wolfe, which the Nevada
Supreme Court also uncritically accepted:
Counsel testified that to avoid becoming a witness himself, he had a policy
of not personally interviewing witnesses. Instead, he had his investigator
conduct all interviews. This is a reasonable tactic. The investigator gathered
enough information to permit trial counsel to adequately cross-examine the
Wolfes on their version of events, their drug usage, their informer status,
their lying, and their convictions and arrests. Therefore, Browning has failed
to show that counsel was ineffective.
1ER 195. This, too, was objectively unreasonable. Counsel’s tactical claim,
even if believed, provides no rational explanation for this failure. As quoted,
counsel’s alleged tactic was “he had his investigator conduct all interviews.”
But Pike denied the request of his assigned investigator, Martin Schopp, to
interview the Wolfes. 6ER 1509. A tactical decision to have an investigator
conduct interviews cannot rationally justify not having an investigator conduct
interviews.
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Furthermore, the record doesn’t support the statement that trial counsel
cross-examined the Wolfes on “their informer status, their lying, their
convictions and arrests.” Pike never asked either of the Wolfes—or any other
witness—a single question about their history as informants. See 3ER 740-829.
Pike called the Wolfes “informers” in argument to the jury (3ER 623), but he
presented no evidence to back up the accusation. The only “lying” Pike asked
either of the Wolfes about—a lie Randy Wolfe told at Browning’s preliminary
hearing, about wearing stolen jewelry to court, 3ER 775—was brought out by
the prosecutor, not the defense, see 3ER 766. And although Pike asked about
some of the Wolfe’s prior convictions and arrests, he only scratched the surface,
and missed the most significant charges apparently dropped and reduced in
consideration of the Wolfes’ testimony in Browning’s case. See Argument II,
above; 3ER 772, 774. Indeed, Pike knew so little he was unable to overcome a
foundation objection to questions about the consideration Vanessa Wolfe was
quite obviously getting from the prosecution. See 3ER 823; page 17, above.
There was no sound strategic reason for the failure to interview or
investigate the Wolfes. Pike’s investigator urged him to do so, but was rebuffed.
6ER 1494, 1497, 1509, 1513-1514. This aspect of Pike’s investigation (or lack
thereof) was classic ineffective assistance. See Cargle v. Mullin, 317 F.3d 1196
1216 (10th Cir. 2003) (trial attorney was ineffective for failing to investigate
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adequately whether a witness had a deal with prosecutors); Reynoso v.
Giurbino, 462 F.3d 1099, 1115 (9th Cir 2006) (counsel's investigation and
preparation for trial were objectively unreasonable in light of her knowledge
about the reward and the absence of any explanation for her failure to interview
the two crucial eyewitnesses on that subject).
Again, there were other ways Pike could have prepared to impeach the
Wolfes’ damning testimony—but he didn’t utilize them either. He could have
authorized completion of the investigation of other defendants the Wolfes had
informed on, as the investigator recommended. See 6ER 1509, 1579. He could
have had a forensic examination performed on the knife Vanessa Wolfe claimed
was the murder weapon. 2ER 315-17; see 6ER 1665-1666. He could have
found and called a witness who said he went with Randy Wolfe to sell some of
the stolen jewelry. 2ER 320; 6ER 1509, 1587-89. He could have done more
than just write the prosecutor a two sentence letter asking for the Wolfes’
“scopes,” or criminal records, and “pending actions.” See 4ER 1030. But he
did none of these things.
/
/
/
/
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B.
Browning was prejudiced by his trial counsel’s ineffectiveness.
The Nevada Supreme Court considered the prejudicial effect of only one of
these aspects of Pike’s deficient performance,45 the failure to interview Officer
Branon and thereby “discover and present the evidence that the victim's description
of the perpetrator's hair did not match Browning's hair.” 1ER 194, 219. It found
this failure to be insufficiently prejudicial on its own, or considered in conjunction
with the few other errors by trial counsel and the prosecution it recognized. Id.
The District Court did not specifically address the reasonableness of this
conclusion, but included the failure to learn the truth about Hugo Elsen’s
description of the murderer in its own list of “alleged errors, whether actual or
assumed” which it concluded “taken cumulatively, did not cause the sort of
prejudice to Browning necessary to warrant habeas corpus relief.” 1ER 68-69.
Notably, neither court included in these lists of errors the failure to discover
what Officer Branon belatedly revealed about the bloody shoeprints. The Nevada
court’s conclusion was based on an untenable premise that the evidence against
Browning was “overwhelming,” even after the prosecution’s most powerful and
45
The Nevada Supreme Court also said, in reference to the broader claim
that “trial counsel failed to properly investigate the facts of this case,” that
“Browning largely fails to specify what evidence would have been revealed by
additional investigation and how the lack of any evidence prejudiced him.” 1ER
192. This statement did not reasonably reflect the record. Browning’s state habeas
corpus appeal brief contained some 21 pages of specifications of the prejudicial
effect of Pike’s ineffectiveness. See Dkt. 59, Exh. 232, pgs. 39–60; Dkt. 131 at 1721.
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objective piece of evidence—what the prosecutor said was “Hugo Elsen’s blood”
on Browning’s jacket—was eliminated. 1ER 219. The District Court did not
explain the basis for its conclusion that the cumulative prejudice was not sufficient
to “warrant habeas corpus relief.” 1ER 68-69.
As shown above, neither of those conclusions can fairly be sustained.
Considering the full range of errors now admitted and facts now known—including
the truth about the bloody footprints, which neither court considered—the
prejudice to Browning’s defense cannot reasonably be denied.46 If the jury had
known that there was no easy explanation for the bloody footprints, and that the
victim’s blood was not on Browning or any of his clothing, and that Browning’s
fingerprints were nowhere on the jewelry, and that the knife was not the murder
weapon, and that the Wolfes were informants and Randy Wolfe was lying about
Marsha Gaylord being in jail, and that Browning had been in the store with
Gaylord just the day before, this would have been a completely different trial. The
jury heard Pike say a few of those things, but he proved none of them, because his
attitude toward criminal defense was “overcasting a shadow of a doubt, as opposed
to proving.” 5ER 1325. That was classic ineffective assistance warranting
reversal of this conviction.
46
Because the Nevada Supreme Court never considered the prejudicial
effect of Pike’s failure to learn the truth about the bloody footprints, that aspect of
its prejudice determination is not entitled to §2254(d)(2) deference. See note 30,
above.
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MOTION TO EXPAND CERTIFICATE OF APPEALABILITY
The Court should additionally grant a Certificate of Appealability, and relief,
on the following claims.
IV.
BROWNING WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
TRIAL BY JURY BY THE TRIAL COURT’S FAILURE TO
INSTRUCT ON THE ELEMENT OF DELIBERATION IN FIRST
DEGREE MURDER.
The jury that convicted Browning of first degree murder was given an
instruction defining the elements of that crime (see 4ER 943) which used the
exact language this Court has twice held unconstitutional because it omits the
separate element of deliberation. See Riley v. McDaniel, 786 F.3d 719, 724 (9th
Cir 2015); Polk v. Sandoval, 503 F.3d 903, 910 (9th Cir 2007). Browning’s
Petition challenged his conviction on that basis (2ER 382-86), but the District
Court found the issue unexhausted and denied a Certificate of Appealability.
1ER 4-6, 115-16, 119.
A Certificate should issue permitting review of an issue which has been
dismissed on procedural grounds if “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and … whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
It obviously is more than “debatable”—it is the law of this Circuit—that
“the use of [this] … instruction violated the Due Process Clause” because it
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“‘relieved the state of the burden of proof on whether the killing was deliberate
as well as premeditated.’” Riley, 786 F.3d at 724 (quoting Polk, 503 F.3d at
910). Since the Nevada courts did not adjudicate the merits of this legal issue, it
is before this Court de novo, and Riley and Polk control.
The remaining question is whether the District Court was inarguably
correct in its exhaustion ruling. It was not, for several reasons.
First, Browning’s state remedies were exhausted because they were “no
longer available, regardless of the reason for their unavailability.” Woodford v.
Ngo, 548 U.S. 81, 92-93 (2006). In Nevada, jury instructions not objected to at
trial or on appeal cannot be challenged in state habeas, Stewart v. Warden, 94
Nev. 516, 517, 579 P.2d 1244 (1978), and a statute of limitations requires state
habeas petitions to be filed within one year after the remittitur on direct appeal.
NRS 34.726(1); see Loveland v. Hatcher, 231 F.3d 640, 642–43 (9th Cir 2000).
That deadline passed in August 1989. See 1ER 268 (8/16/88 denial of rehearing
on appeal).
Because of this, the District Court should have analyzed the issue not as
an issue of exhaustion but one of procedural default. “Exhaustion and
procedural default are distinct concepts in the habeas context.” Franklin v.
Johnson, 290 F.3d 1223, 1230 (9th Cir 2002). The Respondent’s Answer did
not allege this claim was procedurally defaulted but rested on exhaustion. See
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2ER 486-87. It thereby waived any default argument it might have had.
“[P]rocedural default is a defense that state is obligated to raise, is waived by
failure to assert, and is not jurisdictional requirement….” Ward v. Chavez, 678
F.3d 1042, 1052 n.6 (9th Cir 2012) (citing Trest v. Cain, 522 U.S. 87, 89
(1997)); see also id. (citing Francis v. Rison, 894 F.2d 353 (9th Cir 1990))
(holding “the Government waived procedural default defense that it failed to
raise, despite the Government's asserting failure to exhaust argument”).47
Even if the District Court was correct in treating this as an exhaustion
issue, the procedural aspect of its ruling was debatable. Much like the petitioner
in Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997), cited with approval in
Custer v. Hill, 378 F.3d 968, 974-75 (9th Cir 2004), Paul Browning went to
extraordinary lengths trying to make his appointed counsel preserve all his
47
Moreover, even if the State established a default, Browning could have
excused it by showing cause and prejudice or a fundamental miscarriage of
justice. Robinson v. Schriro, 595 F.3d 1086, 1100 n.10 (9th Cir. 2010).
Though the record on this is undeveloped, Browning asked the District Court for
leave to develop it (see 2ER 539-541), and there is plainly a basis on which
Browning could establish both cause, in his appellate lawyer’s ineffectiveness,
see Murray v. Carrier, 477 U.S. 478, 488 (1986), and a miscarriage of justice,
because of the strength of the now-available evidence raising doubts about his
guilt, see Schlup v. Delo, 513 U.S. 298 (1995). If the default defense is not
waived, the case should be remanded so he can make these showings. See, e.g.,
Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir. 1982) (reversing decision claim
was “unexhausted” and remanding for determination of “cause” and
“prejudice”); cf. Woods, 764 F.3d at 1139 (remanding so District Court can
consider cause and prejudice in the first instance).
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constitutional claims. Like Clemmons, he moved for leave to file a pro se brief
in his habeas appeal, and informed the Nevada Supreme Court that “several
substantive claims of error integral to a full and fair review have been omitted
against my specific wishes and consent.” 7ER 1677. Like the state court in
Clemmons, the Nevada Supreme Court turned him down. 1ER 221-22.
Browning later took the extra step of filing a Petition for Extraordinary Relief,
which raised the premeditation instruction issue as its first ground for relief.
7ER 1704. The Nevada Supreme Court had discretion to rule on the merits of
that Petition, Chambers v. McDaniel, 549 F.3d 1191, 1196 (9th Cir 2008), but
for unexplained reasons chose not to do so. 1ER 185. Under Clemmons, that
should have been enough to satisfy the exhaustion requirement.
In addition, exhaustion of state remedies is excused “if the [state]
corrective process is so clearly deficient as to render futile any effort to obtain
relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (citing Wilwording v.
Swenson, 404 U.S. 249, 250 (1971)). Neither the District Court nor the
Respondent have pointed to any case in which the Nevada Supreme Court has
reversed a conviction based on an unconstitutional jury instruction, in a
successive state habeas petition. To the contrary, the Nevada court has
repeatedly refused to entertain such arguments, with regard to this very issue.
See, e.g, Lisle v. State, ___ Nev. ___, 351 P.3d 725, 729 (2015), and cases there
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cited. The exhaustion doctrine does not require resort to purely conjectural state
remedies. See Russell v. Rolfs, 893 F.2d 1033, 1037-38 (9th Cir 1990). Nor
does it require futile presentations to state courts of issues they have recently
rejected, at least when there is no reason to believe “the [state] courts would
have decided petitioner’s case differently.” Lynce v. Mathis, 519 U.S. 433, 436
n.4 (1997).
“The futility exception applies when … the highest state court has
recently decided the same legal question adversely to the petitioner.” Fisher v.
Texas, 169 F.3d 295, 303 (5th Cir. 1999). The Nevada Supreme Court has
recently and repeatedly refused to grant relief, on both substantive and
procedural grounds, on this exact constitutional claim. See Nika v. State, 124
Nev. 1272, 1279-87, 198 P.3d 839 (2008); Byford v. State, 116 Nev. 215, 236–
37, 994 P.2d 700, 714–15 (2000).
Finally, “[i]nordinate, unjustifiable delay in a state-court collateral
proceeding excuses the requirement of petitioners to exhaust their state-court
remedies before seeking federal habeas corpus relief.” Jackson v. Duckworth,
112 F.3d 878, 881 (7th Cir. 1997); accord, Phillips v. Vasquez, 56 F.3d 1030,
1033-38 (9th Cir 1995); Story v. Kindt, 26 F.3d 402, 404-07 (3rd Cir. 1994).
When the District Court ruled on exhaustion, Browning’s case was 28 years old
and had spent 23 years in state court. His original state habeas petition was filed
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in 1989 and not finally resolved until 2004. The state petition languished in the
state district court for a dozen years for reasons never explained. See 1ER 5;
1ER 191, n. 2.48 To require Browning to run that decades-long gauntlet again,
with no realistic hope of convincing the Nevada Supreme Court to change its
mind on this issue, would be the epitome of futility.
A Certificate should issue and relief should be granted on this claim.
V.
BROWNING WAS DENIED DUE PROCESS BY THE
PROSECUTOR’S MISCONDUCT IN ARGUMENT TO THE JURY.
A Certificate should also be granted, and Browning’s convictions reversed,
because of prosecutorial misconduct so severe as to deny due process.
A.
The prosecutor falsely told the jury that the victim’s blood was on
Browning’s jacket.
At trial, prosecutor Seaton made a dramatic final argument to the jury. He
said that “Hugo Elsen’s blood” was on a tan jacket49 found in the Wolfes’ room,
and then he showed the jury a picture of Browning wearing that jacket. 2ER 309310, 341. He then told the jury that this was so damning “you don’t need to spend
five minutes in the deliberation room. Come back in here and tell me he’s guilty.
48
Eight and a half years ago, in 2007, the District Court found the lengthy
delay in the state proceedings was exceptional enough to militate against federal
absention while Browning’s resentencing appeal was pending. 1ER 178.
49
Although witnesses from the crime scene testified that the perpetrator was
wearing a blue jacket, the jacket introduced at trial alleged to have belonged to
Browning was tan. 2ER 309, n.6.
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It’s as simple as that.” 2ER 309-310, 341; 3ER 899. In state habeas, this was
proved to be untrue: the blood on the jacket did not belong to the victim. 1ER 33.
The Nevada Supreme Court concluded this was not prosecutorial
misconduct because “although the prosecutor was wrong that the blood belonged
to the victim, the evidence he relied on was not false: the blood on the coat was the
same type as the victim’s.” 1ER 33; 1ER 214. The District Court found that
ruling reasonable. 1ER 33.
It clearly was not. Although “the evidence he relied on was not false,”
Seaton’s argument was. There is a difference between a person’s blood type and a
person’s actual blood. A forensic expert who testified under oath that the blood on
a jacket was “the victim’s blood,” based on a test showing only that it was the
victim’s blood type, would commit perjury. “The evidence relied on” would not
be false, but the testimony
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