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Browning v. Baker

United States Court of Appeals, Ninth Circuit

November 3, 2017

Paul L. Browning, Petitioner-Appellant,
Renee Baker, Warden; Adam Paul Laxalt, Attorney General of the State of Nevada, Respondents-Appellees.

          Argued and Submitted March 16, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Nevada D.C. No. 3:05-cv-00087-RCJ-WGC, Robert Clive Jones, Senior District Judge, Presiding

          Timothy K. Ford (argued) and Tiffany Cartwright, MacDonald Hoague & Bayless, Seattle, Washington; Mark A. Larrañaga and Jacqueline K. Walsh, Walsh & Larrañaga, Seattle, Washington; for Petitioner-Appellant.

          Victor-Hugo Schulze II (argued), Senior Deputy Attorney General; Thom Gover, Chief Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

          Maureen P. Alger and Lori R. Mason, Cooley LLP, Palo Alto, California; Reed A. Smith, Cooley LLP, New York, New York; for Amicus Curiae The Innocence Network.

          Before: Kim McLane Wardlaw, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

          SUMMARY [*]

         Habeas Corpus

         The panel filed an order in which (1) Judges Wardlaw and Gould amended their September 20, 2017, majority opinion in Paul Browning's appeal from the denial of his habeas corpus petition; (2) Judge Callahan objected to any basis for expanding the COA, and stood by her dissent; and (3) the panel denied a Petition for Panel Rehearing.

         In the opinion, the panel affirmed the district court's denial of Browning's habeas corpus petition as to his escape conviction; reversed the district court's denial of the petition as to Browning's convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings.

         Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959). The panel held that an officer's shoeprint observation, a witness's expectation of a benefit for his testimony, and the precise description of the assailant's hairstyle received from the victim were all favorable to Browning under Brady. The panel held that Browning's Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada's decision that a police officer's knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness's expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Browning. The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent. The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Browning's Brady claims.

         Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation. Granting Browning's motion to expand the certificate of appealability, and explaining that the court considers counsel's conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular "claims" that counsel's failure to investigate particular avenues of evidence were deficient. The panel held that Browning's trial counsel unreasonably failed to investigate Browning's case, and that the Supreme Court of Nevada unreasonably concluded that Browning failed to prove just that. The panel amended the opinion to state that because Browning's ineffective of assistance of counsel claims succeed on other grounds, it need not address other alleged deficiencies argued by Browning in support of an expansion of the COA. The panel held that the Supreme Court of Nevada's conclusion that any deficient performance did not prejudice Browning was objectively unreasonable.

          The panel concluded that Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon. The panel wrote that Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

         Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Browning's ineffective assistance of counsel claim as well as his claims under Brady and Napue.


         Judges Wardlaw and Gould AMEND their majority opinion in the above captioned case filed September 20, 2017 as follows:

         The paragraph on page 55 of the slip opinion that begins with the sentence <Finally, Browning lists in a footnote of his brief a litany of other asserted deficiencies in Pike's representation.> shall be deleted in its entirety and replaced with the following language:

         <Finally, in arguing for an expansion of the COA, Browning lists a number of other alleged deficiencies in Pike's representation. Because we find that Browning's ineffective assistance of counsel claim succeeds on other grounds, we do not here assess these other alleged deficiencies.>

         Existing footnote 19 shall be inserted in its entirety after <Pike's representation.> in the above-inserted text.

         Judge Callahan objects to any basis for expanding the COA, does not concur in amending the majority opinion, and stands by her dissent.

         Judges Wardlaw, Gould, and Callahan vote to deny the Petition for Panel Rehearing.

         The Petition for Panel Rehearing is DENIED. No further petitions for panel rehearing or rehearing en banc will be accepted.

         IT IS SO ORDERED.


          GOULD, Circuit Judge

         Nevada state prisoner Paul Browning appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 1986, a Nevada jury found Browning guilty of four crimes involving the robbery and murder of Hugo Elsen in a Las Vegas jewelry store. The jury sentenced Browning to death.

         In his habeas corpus petition, Browning challenges his convictions. He asserts that he is entitled to habeas relief on two grounds: prosecutorial misconduct and ineffective assistance of trial counsel ("IAC"). Browning contends that the prosecutor in his case withheld material evidence favorable to the defense and presented false and misleading evidence at trial. He also contends that his trial counsel's pretrial investigation and preparation were constitutionally inadequate. The Supreme Court of Nevada previously rejected these claims.

         Under this procedural posture, a federal court's role is limited. Our role is only "to guard against extreme malfunctions in the state criminal justice systems." Davis v. Ayala, 135 S.Ct. 2187, 2202 (2015) (internal quotation marks omitted). In Paul Browning's case, a mixture of disturbing prosecutorial misconduct and woefully inadequate assistance of counsel produced just that. Because the Supreme Court of Nevada unreasonably applied clearly established Supreme Court precedent in denying some of Browning's claims, we reverse the district court's denial of habeas relief and remand for further proceedings.


         We start with the factual background: Between 4:00 p.m. and 4:30 p.m. on November 8, 1985, Hugo Elsen was stabbed to death during a robbery of the jewelry store he operated with his wife, Josy Elsen. Soon after this brutal murder, police officers arrested Paul Browning as the primary suspect. Browning was staying at the Normandy Motel, located a few blocks from the Elsens' store. The state charged Browning with (1) burglary, (2) robbery with the use of a deadly weapon, (3) murder with the use of a deadly weapon, and (4) escape. Because the public defenders' office was representing a potential witness in Browning's case, the court appointed former Clark County prosecutor Randall Pike to represent Browning. At the time of his appointment, Pike had been practicing as a defense attorney for less than a year. He represented in a state habeas proceeding that Browning may have been his first capital defendant.[1]

         Browning pleaded not guilty. The court scheduled trial for March 3, 1986. A week before that date, the prosecution requested a continuance, explaining that it was not prepared to begin trial because someone in its office had written the wrong trial date in the case file. Over the defense's objection, the court granted the continuance. Because of the delay, Browning sought dismissal of his case from the Supreme Court of Nevada and federal court. He was unsuccessful. In the meantime, Pike lost contact with Browning's girlfriend, Marsha Gaylord-an essential witness for Browning's trial defense, according to Pike. Trial commenced on December 9, 1986, with Gaylord still unreachable.


         The prosecution's first witness was Josy Elsen, the spouse of the victim. Josy testified that in the late afternoon of November 8, 1985, she was napping in a back room of the jewelry store when she heard commotion in the showroom. She awoke, entered the showroom, and saw a black man with a blue cap holding a knife and kneeling over Hugo. Hugo and the assailant were in the opposite corner of the room, and a showcase stood between them and Josy. All Josy could see was the side of the assailant's head and hair that "puffed" out of the back of his cap. Josy at once ran through the back door of the jewelry store, knocked on the window of an office next door, and asked the occupants to call the police. Debra Coe, an employee in that office, then accompanied Josy back into the jewelry store through the back entrance; victim Hugo was lying in the same corner in a pool of blood, but the assailant was gone. Later that night, police brought spouse Josy to a station, where she positively identified many pieces of jewelry as coming from her store. At trial, Josy identified a picture of a blue hat with the word "Hollywood" written on the front as the one she saw the assailant wearing in the showroom.

         Josy testified that in December 1985, a month after Hugo's murder, police called her back to the station and presented her with a photographic lineup of twelve black men. The officers placed Browning's picture-taken in November 1985-in the "#5" position. According to an officer's report, Josy "immediately" explained to the officers that she thought she would not be able to identify the assailant because "she only saw him for a very slight moment from the side." Nonetheless, Josy examined the photos and stated that the men in photos #1, #6, and #11 had hair "somewhat like" the assailant's. She did not then indicate any recognition of Browning's photo. Yet at trial, when Josy was asked to identify the man who had killed Hugo, she said that, although she had a limited view of the assailant, she was certain that it was Browning.

         The prosecution also called a business neighbor and witness, Debra Coe. Coe testified that when Josy Elsen frantically arrived at Coe's office, Coe ran to the front window to see if she could see anyone leaving the Elsens' store. Coe saw a man run by her office from the direction of the jewelry shop, but later that day told the officers that the man had not come out of the Elsens' store and instead "must have run past it." She told the officers that it was "hard for [her] to see how he could've come out of the door and was running at the angles he was at." She initially told the officers that the man she saw was white, but in a later interview the same day said he was "definitely black." In the interview, Coe stated, "when I see a black person, that they all look the same." At trial, Coe described the man as black, about six feet tall and 27 years old, with a mustache and hair sticking out about an inch beyond a blue cap. She also said he was wearing Levi's and a dark blue jacket. When asked at trial if she truly believed that all black people "look the same, " Coe said she did not. Coe admitted, however, that she did not "really know any black persons personally."

         Coe testified that later on the evening of November 8, an officer asked her to accompany him around the corner to "identify the man that they had picked up." Coe obliged, and a minute or two later, an officer pulled up in a police vehicle. The police first showed her someone whom Coe stated was "definitely not" the man she had seen. The officers then presented Browning, who was shirtless and in handcuffs. Browning had a large Afro-style haircut. Coe indicated to the officers that she "thought" Browning was the person she had seen running by her office, but she "would have been able to identify him better if he had the hat on and the jacket." According to Coe, during the showup, Browning's hair was "pressed down" as if he had been wearing a hat.

         At trial, Coe testified that she was now "sure" Browning was the man she had seen running by her office on November 8, 1985. When Pike asked her how, a year after her equivocal identification on the night of the crime, she was so sure that it was Browning that she had seen, Coe stated that she had "had time to think about it." Coe also identified the blue "Hollywood" hat as the one worn by the man who ran by her office.

         The prosecution also called Charles Woods, who in 1985 operated a jewelry store three doors down from the Elsens' store. Woods was standing outside his store with a friend around 4:30 p.m. when he saw a man jogging towards him. The man was not holding anything, and had no blood on him. The man passed Woods within touching distance. Woods told police that the man he saw was about six-feet tall, slim, muscular, about 180 pounds, and was wearing dark pants, a light-colored shirt, and a "darker color" hat. When shown a picture of the Hollywood hat at trial, Woods said that it was not the hat he saw the man wearing, which was more of a "beret sort of thing."

         Woods testified that the officers at the scene asked him to join Coe at the nearby corner to "stick around and identify" a suspect. When police presented Woods with a shirtless and handcuffed Browning, Woods identified Browning as the man who ran by Woods earlier that day.

          The prosecution then called Randy Wolfe. Randy and his wife, Vanessa Wolfe, lived in the same motel where Browning was staying. Randy testified that between 4:00 p.m. and 4:30 p.m. on November 8, 1985, he was working on his landlady's car when Browning yelled his name from the motel's upper level. Randy went upstairs and found Browning in the Wolfes' apartment sitting on the bed and wearing a tan windbreaker and the Hollywood hat. Jewelry had been dumped on the bed. According to Randy Wolfe, Browning told Randy that he had just robbed a jewelry store and thought he had killed someone. Browning also told Randy that he planned to use the jewelry to get Gaylord out of jail. Randy told Browning that he wanted nothing to do with the murder, and was going to go finish working on his landlady's car and then get some heroin. Browning asked if Randy would get some heroin for him too. On his way down the stairs, Randy encountered Vanessa, whom he instructed to keep Browning "cool" while Randy found the police. Randy then located the crime scene and led several officers back to his apartment. Randy testified that when the officers got there, they promptly arrested Browning, and that after they removed Browning from the apartment, Randy found a cup under his sink filled with additional jewelry.

         Randy Wolfe made several admissions during his testimony that bore on his credibility. He admitted that he and Vanessa were addicted to heroin and cocaine, and that he would break into cars to support their habits. He had prior convictions for selling a controlled substance and prison escape. He also admitted that he had kept some of the jewelry he claimed he found under his sink, and lied during Browning's preliminary hearing by stating that he did not keep any of it.

          Before the time of Browning's trial, Randy had been charged with possession of stolen property, a charge unrelated to the Elsens' stolen jewelry. Prior to Randy's testimony at trial in Browning's case, the state permitted Randy to plead to a lesser charge of attempted possession of stolen property, for which he faced one to five years in prison. Despite Randy Wolfe's failure to appear in court almost thirty times in the past, he was released on his own recognizance before Browning's trial. Randy Wolfe testified, however, that he had not received "anything" for his testimony against Browning, and that no one had promised that his sentence might be "diminished" if he testified. The prosecutor in Browning's case, Daniel Seaton, was not the prosecutor in Randy's case.

         The prosecution next called Vanessa Wolfe. Around 1977, Vanessa and Gaylord, Browning's girlfriend at the time of the murder, had lived in southern California, where they ran con games and "bilk[ed] people out of their money." At the time of Browning's trial, Vanessa worked as a prostitute in Las Vegas. On the afternoon of November 8, 1985, Vanessa was bringing a client to the Wolfes' apartment when she encountered Randy on the stairs. Randy told Vanessa about what Browning had done, and that Browning was going to take Vanessa hostage if Randy called the police. Vanessa then entered the apartment. Browning was inside, shaking water off of a knife. The Hollywood hat and tan windbreaker were on the floor. Browning instructed Vanessa to throw the knife and hat on the roof, but instead she put the knife in a pizza box under the stairs and threw the hat in a dumpster. Police arrived soon after.

         Officer David Radcliffe also testified for the prosecution. He said that he arrived at the Elsens' store to find Hugo Elsen conscious, but in an "extremely serious" condition. Hugo told Radcliffe that a black man wearing a blue baseball cap had stabbed him. Radcliffe then joined some officers standing outside of the storefront, and soon after, Randy Wolfe approached him. Radcliffe had known Randy for several years because Randy was a regular narcotics user. Randy led Radcliffe and several other officers to Randy's apartment, which the officers forcibly entered. Inside, they found Browning sitting on the corner of the bed. Pieces of jewelry were scattered along the floor on the opposite side of the room from the bed.

         The prosecution also called several forensics specialists to testify about evidence at the crime scene. Identification specialist David Horn testified that three of the showcase counters in the store had been "disturbed, " and that the merchant-side sliding glass of one of the showcases had been broken. Horn lifted "approximately twenty some odd" fingerprints from the scene. Two were most relevant: one from the top glass of one of the counters, and another from a fragment of the counter's broken sliding-glass door. A different fingerprint examiner concluded that these two prints matched Browning's.

         Horn also testified that he observed bloody tennis shoe-style shoeprints leading away from the corner where Hugo was lying and towards the store's front door. After leaving the scene, Horn compared the shoeprints to the loafers Browning was wearing when he was arrested; they did not match. Horn testified that paramedics and off-duty officers often wear tennis shoes at crime scenes, so he did not think any further investigation into the source of the shoeprints was necessary.

          State criminalist Minoru Aoki testified that Hugo had Type B blood. Blood had been found on the tan jacket that was lying on the floor in the Wolfes' apartment, and it too was type B. Aoki did not test Randy Wolfe or Vanessa Wolfe's blood type.

         Pathologist Giles Green testified that the knife recovered from the pizza box under the stairs at the Normandy Motel was "consistent" with the wound configurations in Hugo's body, but "nothing about that knife t[old him] that the knife made those wounds."

         Browning's trial counsel, Randall Pike, called three witnesses. First was Bradley Hoffman, who operated a store two doors down from the Elsens' store. Hoffman testified that around 4:00 p.m. on the day of the crime, he saw a man walking down the street towards the Elsens' store. The man was Cuban, "probably five seven, slight build, " and wearing Levi's jeans, the shirt that Hoffman vaguely recalled as plaid, and a blue baseball cap. Later that night, officers brought Hoffman to the showup with Coe and Woods, and presented him with a shirtless Browning. Hoffman stated that Browning's hair, a "medium sized Afro, " did not appear as though Browning had recently been wearing a hat. He also stated at trial that the Hollywood hat was not the one worn by the man he saw walking towards the Elsens' store.

         Pike also called Officer Gregory Branon, who testified that he was "one of the first two officers" to arrive at the scene. Branon received a description of the suspect: a "black male, adult in his late twenties, wearing a blue baseball cap, blue windbreaker-type jacket, blue Levi's[, ] . . . medium complexioned, bore a mustache and what was described as a shoulder length J[h]eri-type curl." Pike did not ask Branon who gave him that description.

         Last, Pike called Annie Yates-a hair stylist-who testified to the difference between a Jheri Curl (the assailant's hairstyle as described to Officer Branon), and an Afro (Browning's hairstyle on November 8, 1985). Yates stated that a Jheri Curl requires the use of chemicals, whereas an Afro does not. Pike presented Yates with the twelve-person photographic array previously shown to Josy Elsen, which had Browning at position #5. Yates stated that pictures #1, #2, #4, and #10 had Jheri Curls.

         In his closing, Seaton laid out his theory: Browning robbed the jewelry store to bail Gaylord out of jail because he relied on her prostitution income to feed his heroin addition. Seaton's closing argument was incendiary, but Pike rarely objected. Seaton began by characterizing the presumption of innocence as follows:

Now we are talking about that wonderful constitutional element called the presumption of innocence, we are now talking about piercing that veil, dropping that facade because, in fact, as a person sits in a courtroom he may not be innocent. He may be guilty.
[Browning] has the presumption of innocence. And, of course, it is one when his guilt is shown that the farce of that presumption is known and it's been done in this case.

         Seaton gave the following description of Browning's murder of Hugo Elsen:

[Browning, t]his man whose girlfriend prostituted for him so he could get drugs, money to get drugs, this man who took heroin, he wanted Randy Wolfe to get him to cop some heroin for him after the murder. He shot the life of Hugo Elsen right up his arm. That's what he was doing that day. That's what we have here.

         Seaton also described Josy Elsen's identification of Browning at trial as "as good as you can ask for." Anticipating that Pike would argue that Browning's hair on the night of the murder (an Afro) did not match the assailant's hairstyle as described to Officer Branon (a Jheri Curl), Seaton explained that Officer Branon received the description from "some white person" who did not understand "the true definition" of a Jheri Curl. Seaton concluded by saying that it was the jury's "duty to go out, decide that and come back in here and tell [Browning] just exactly that, that he's the one that has to pay for these crimes."

         Pike's closing argument set forth a theory that the Wolfes' friend, a Cuban man, committed the robbery-murder, and the Wolfes were now framing Browning.

          The jury found Browning guilty on all four counts[2] and sentenced him to death. Browning directly appealed to the Supreme Court of Nevada, which affirmed. Browning v. State, 757 P.2d 351 (Nev. 1988).


         Browning filed a petition for a writ of habeas corpus in Nevada state district court, arguing in relevant part that Seaton had withheld exculpatory evidence from the defense and that Pike was ineffective by failing to perform an adequate investigation before trial. The petition included three new pieces of evidence. First, the state stipulated that post-conviction DNA analysis had proven that the blood on the tan windbreaker found in the Wolfes' apartment did not belong to Hugo Elsen. Second, a forensics report indicated that Hugo Elsen's wounds did not "coherently coincide" with the knife found in the pizza box under the stairs at the Normandy Motel. Third, a forensics report suggested that the bloody shoeprints were too large to belong to Josy Elsen or Debra Coe.

         The Nevada district court held an evidentiary hearing, at which attorneys Jason Isaacs and Daniel Lamb represented Browning. Robert Shomer, a forensic psychologist, testified that Josy Elsen's identification of Browning as the assailant was questionable because (1) her in-court identification of Browning was 14 months after the incident; (2) the stress of the moment might have made her memory more vivid, but no more accurate; (3) the in-court identification was extremely suggestive because Browning was the sole available "choice"; (4) cross-racial identifications are unreliable (Josy is white, Browning is black); and (5) Josy's observation of Browning's picture during the photo array in December 1985 may have implanted Browning's face in Josy's memory and prompted a false in-court identification. Shomer also criticized Coe's identification, explaining that (1) the 14-month gap between Coe's observations and the trial likely distorted her memory; (2) Coe initially reported to the police that the man she saw did not appear to come from the Elsens' store, and Shomer suggested that Coe probably did not focus intently on his characteristics; (3) Coe had reported to the police that the man she saw was white, but one of the officers' statements to Coe that the suspect was black might have impacted Coe's memory; and (4) given the highly suggestive procedures of the in-person showup on the night of November 8, 1985, Coe's identification was, at best, equivocal. Finally, Shomer criticized Woods's identification because (1) Woods stated that he saw nothing notable about the man who ran towards him on the afternoon of November 8, 1985, suggesting that Woods did not pay close attention to the man's appearance; and (2) the showup was particularly suggestive in light of the officers' telling Woods that they had a suspect whom they wanted Woods to identify.

         Browning's counsel then called Michael Sweedo, a fingerprint examiner and crime scene analyst, to give his opinion on the officers' forensic investigation. Sweedo testified that Browning's fingerprints on the showcase glass could have been the result of Browning leaning over the case. Sweedo noted that it was unusual that there were no other identifications on the remaining twenty-some latent prints lifted from the crime scene. Sweedo also said that it was abnormal that the officers did not investigate the source of the bloody shoeprints.

         Browning's attorneys then called Pike, Browning's trial counsel. Pike told the court that Marsha Gaylord would have testified to two crucial pieces of evidence that never came out at trial: (1) Gaylord and Browning had been in the Elsens' store prior to November 8, 1985, which could have explained the presence of Browning's fingerprints in the store; and (2) the Wolfes had a friend that was of Cuban descent. Pike could not call Gaylord as a witness, however, because she "disappeared" after the initial trial continuance. Pike asserted that he tried to locate Gaylord by using Martin Schopp, his investigator. Other than Browning himself, Gaylord was the only person who knew that Browning had been in the Elsens' store before November 8, 1985.

         Pike then described his investigation of Browning's case. He explained that although he visited the Elsens' store after it was cleaned and reopened to the public, he never went when it was a crime scene. Pike explained that, to avoid becoming a witness himself, he had Schopp conduct all witness interviews. Pike did not have Schopp interview the Wolfes before trial, despite Pike's knowing that the Wolfes were "long time informants." Pike suggested that any inquiry into whether the Wolfes were receiving a benefit for their testimonies would have been futile because, in 1986, plea bargaining was "informal, " and "basically, there were a lot of things that were done just with passive agreement." At some point prior to trial, Pike was told that the Wolfes had falsely accused a man named Jerold Morell of assaulting Vanessa with a knife, but Pike could not recall making any attempt to locate Morell.

         Pike did not retain a fingerprint expert because, as a former prosecutor, he "knew" all of the state's forensics witnesses and relied on informal conversations with them. Pike said that he could trust the state's main fingerprints expert to be "straight" with him.

         Pike did not conduct any investigation into the source of the bloody shoeprints, and never authorized any interviews to determine when the responding officers observed the shoeprints. He explained that if he investigated the shoeprints' source and determined that they belonged to one of the paramedics, he would not be able to argue that the shoeprints exculpated Browning as the murderer. Pike characterized his overall trial strategy as "overcasting a shadow of doubt, as opposed to proving" Browning's innocence.

         Before trial, Pike was told that a man named Thomas Stamps had information suggesting that Randy Wolfe and another man, Mike Hines, were attempting to sell some of the jewelry stolen from the Elsens' store. Pike could not recall why he did not have Schopp interview Stamps. Pike also could not recall why he did not instruct Schopp to interview Martha Haygard (the Wolfes' landlady), who had seen the Wolfes with a Cuban individual. Nor could Pike recall why he had not followed up on Coe's initial statement to the police that the man whom she saw running by her office was white, not black.

         Investigator Martin Schopp also testified at the state habeas hearing. Schopp performed "substantially all the investigative work" for Browning's defense. Schopp, however, did not have autonomy-Pike directed all of his inquiries. While the court appointed Schopp soon after Browning's arrest, Schopp was not contacted to perform any work until five months later, when Browning himself reached out. Schopp testified that such a significant delay was unusual and likely allowed evidence to get cold. Pike did not give Schopp a discovery file until August 1986-ten months after Browning's arrest-and the file included only police reports and a voluntary statement by Randy Wolfe. Pike gave Schopp no other information to create a foundation for his investigation. Schopp performed a total of 12 hours of investigative services for Pike-a number Schopp thought was low under the circumstances. Pike limited Schopp's investigation by denying Schopp's requests for additional investigation funds. Schopp and Pike spoke no more than five times, and each time only briefly.

         Shopp explained that after preparing a preliminary report-which included a statement from Haygard that she saw the Wolfes wearing "big gold wedding bands" after the robbery-he felt that there were various other leads to follow. He requested that Pike permit him to interview the Wolfes and Thomas Stamps. He also wanted to interview Jerold Morell, who had told Pike that the Wolfes falsely accused him of sexually assaulting Vanessa with a knife. (A jury acquitted Morrell of those accusations.) Pike denied each of these investigation requests. Pike also never asked Schopp to interview any police officers or detectives. In Schopp's opinion, the investigation into Browning's case was never "completed."

         Browning's state habeas counsel also called prosecutor Daniel Seaton. Seaton testified that after Browning was convicted of the robbery-murder, Seaton gave Randy Wolfe two concrete benefits. First, he helped Randy get a drywalling job. Second, and more importantly, before Randy was sentenced on his conviction for attempted possession of stolen property, Seaton spoke to the sentencing judge on Randy's behalf. At Randy's sentencing hearing, the judge explained that Seaton had told him that Randy was "a witness in a recent trial, " and in light of Randy's being "somewhat helpful" to the prosecution on "several occasions, " Seaton felt Randy "deserve[d] something positive for doing that." The judge later noted that Seaton told him that Randy "more than fulfilled his obligation" in Browning's trial "and as a matter of fact put himself in some jeopardy and deserves something for it." In light of Seaton's statements to the sentencing judge, the prosecution in Randy's case withdrew its recommendation of five years imprisonment. The judge imposed only probation.

         At the state habeas hearing, Seaton testified that he never promised Randy any benefits in exchange for his testimony against Browning, and decided to speak to Randy's sentencing judge only after Browning was convicted. Seaton admitted, however, that he had engaged in off-the-record plea bargaining in the past in at least one other case. Seaton also admitted that after he learned that the Wolfes kept some of the Elsens' stolen jewelry, Seaton did not impound the jewelry or instruct anyone else to do so. Nor did the state prosecute the Wolfes with any crime relating to the jewelry they kept.

         Browning's state habeas counsel also called Officer Branon. Branon testified that he and another officer were the first to arrive at the crime scene-before paramedics or other officers entered the Elsens' store. Upon arrival, Branon immediately noticed bloody shoeprints on the floor. Branon encountered Hugo Elsen lying in the corner of the store. Hugo was scared, but lucid. In Branon's original report, he wrote that the assailant had a Jheri Curl-type hairstyle. As noted above, Branon never explained at Browning's trial who gave him that description, and the speaker was not revealed. During the state habeas hearing, however, Branon explained that it was victim Hugo Elsen himself who had given the description. Branon also testified that Hugo did not use the term "Jheri Curl" when describing the assailant; rather, Hugo described the assailant's hair as shoulder length, loosely curled, and wet. It was Branon-who is black-who first used the term Jheri Curl to describe the assailant's hair. When shown pictures and a video of Browning from the night of November 8, 1985, Branon stated that Browning's hair was a "four inch Afro with braids on top of it, " and could not be described as a Jheri Curl or shoulder length, loosely curled, and wet. The revealed testimony about the victim's description of the murderer's hair raised a critical identification issue.

         Finally, Browning himself testified at his state habeas hearing. He told the court that on November 8, 1985, around 4:00 p.m., he was walking down the street when he saw Randy Wolfe driving a yellow Datsun. Browning asked Wolfe for a ride downtown, and as he approached, a Cuban man-whom Browning knew as Randy's friend-pushed Browning out of the way and entered the car. The Cuban man was wearing both the Hollywood hat and tan jacket found in the Wolfes' apartment when Browning was arrested. Randy told Browning to meet him back at the Wolfes' motel room, and then drove off.


         The state district court denied Browning's habeas petition on December 7, 2001, and filed its findings of fact and conclusions of law on October 24, 2002. Browning appealed to the Supreme Court of Nevada, which on June 10, 2004 affirmed the denial of Browning's challenge to his convictions, but reversed the district court's denial of Browning's challenge to his sentence. Browning v. State, 91 P.3d 39 (Nev. 2004). On remand, a jury again sentenced Browning to death. Browning appealed to the Supreme Court of Nevada, which affirmed. Browning v. State, 188 P.3d 60 (Nev. 2008). The United States Supreme Court denied a subsequent petition for a writ of certiorari. Browning v. Nevada, 556 U.S. 1134 (2009).

         While he was being resentenced, Browning filed a petition for a writ of habeas corpus in the United States District Court for the District of Nevada. On November 28, 2011, Browning filed his Fifth Amended Petition, the operative version before our court now. After Browning abandoned several unexhausted claims, the district court denied Browning's petition in full on August 1, 2014. The district court granted Certificates of Appealability ("COA") on the following issues: (1) whether the prosecution's failure to produce evidence relating to the bloody shoeprints constituted a violation of Browning's rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and/or Napue v. Illinois, 360 U.S. 264 (1959); (2) whether evidence impeaching Randy Wolfe's credibility was withheld in violation of Browning's rights under Brady; and (3) whether Pike was ineffective in light of his failure to investigate the source of the bloody shoeprints, Hugo Elsen's description of the assailant, and the credibility of Browning's accusers. Browning timely appealed.[3]


         We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and "review de novo the district court's dismissal of a habeas petition." Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), if a state court adjudicates a petitioner's federal law claim on the merits, a federal court may grant habeas relief only if the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).[4]

          "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000). "A state court's decision can involve an unreasonable application of Federal law if it either [(1)] correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or [(2)] extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002) (internal quotation marks omitted).

         Browning asks that we review some of his claims de novo rather than with deference to the Supreme Court of Nevada. He contends that the Supreme Court of Nevada's rulings were not on the merits, and that its reasoning was based on standards contrary to federal law. See 28 U.S.C. § 2254(d). Because we hold that Browning is entitled to relief based on an unreasonable application of United States Supreme Court precedent, we need not, and do not, address whether the Supreme Court of Nevada's decisions were on the merits or contrary to federal law.


         Under Brady, prosecutors are responsible for disclosing "evidence that is both favorable to the accused and material either to guilt or to punishment." United States v. Bagley, 473 U.S. 667, 674 (1985) (internal quotation marks omitted). The failure to turn over such evidence violates due process. Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (per curiam). The prosecutor's duty to disclose material evidence favorable to the defense "is applicable even though there has been no request by the accused, and . . . encompasses impeachment evidence as well as exculpatory evidence." Strickler v. Greene, 527 U.S. 263, 280 (1999) (citation omitted).

         Under Napue, convictions obtained through the use of false testimony also violate due process. 360 U.S. at 269. A violation occurs whether the prosecutor solicits false statements or merely allows false testimony to go uncorrected. Id. The constitutional prohibition applies even when the testimony is relevant only to a witness's credibility, id., and where the testimony misrepresents the truth, see Miller v. Pate, 386 U.S. 1, 6 (1967) (prosecutor "deliberately misrepresented the truth" by presenting testimony that shorts with large reddish-brown stains tested positive for blood, while leaving out that the stains were made by paint).

         For claims under Brady, the prosecutor's personal knowledge does not define the limits of constitutional liability. Brady imposes a duty on prosecutors to learn of material exculpatory and impeachment evidence in the possession of state agents, such as police officers. See Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) ("Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not to the prosecutor.'" (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995))).

          In the Ninth Circuit, the same is true for claims under Napue. First, in Giglio v. United States, the Supreme Court held that it would impute to an entire prosecution office one prosecutor's knowledge that a government witness's testimony was false, even though the prosecutor with knowledge of the false testimony was not the trial attorney on the case. 405 U.S. 150, 154 (1972). Then, in Jackson v. Brown, we applied the same principle to police officers with knowledge that trial testimony offered by the government was false, holding that "Napue and Giglio make perfectly clear that the constitutional prohibition on the 'knowing' use of perjured testimony applies when any of the State's representatives would know the testimony was false." 513 F.3d 1057, 1075 (9th Cir. 2008).

         However, the dispositive question on the Napue claim here is what "clearly established Federal law, as determined by the Supreme Court of the United States, " says on the issue. See 28 U.S.C. § 2254(d)(1). We recently answered that question. Despite our holding in Jackson, we held in Reis-Campos v. Biter that "it is not clearly established that a police officer's knowledge of false testimony may be attributed to the prosecution under Napue." 832 F.3d 968, 977 (9th Cir. 2016).

         As the habeas petition in Jackson was filed before AEDPA's effective date, Jackson did not directly address whether there was clearly established Supreme Court precedent as required by 28 U.S.C. § 2254(d)(1). As such, Reis-Campos-a case decided under the AEDPA standard-is controlling on that question. See 832 F.3d at 973.

         The district court granted a COA as to whether the prosecution violated (1) Brady or Napue with respect to Officer Branon's undisclosed observation of the bloody shoeprints, and (2) Brady with respect to evidence of an undisclosed benefit for Randy Wolfe's testimony. We expand the COA to include a third claim: whether the prosecutor violated Brady by not disclosing the actual description that Hugo Elsen gave to Officer Branon of the assailant's hair.[5] We first address whether each piece of evidence was exculpatory, triggering a potential duty to disclose under Brady, and for the shoeprint evidence, whether it involved the prosecution's knowing presentation of misleading testimony in violation of Napue. We then turn to materiality.


&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The bloody shoeprints. At trial, Browning argued that the bloody shoeprints-which did not match the shoes Browning was wearing when he was arrested-demonstrated that someone else committed the murder. The prosecution responded with Officer Horn's testimony that responding paramedics and off-duty detectives often wear tennis shoes at crime scenes, misleadingly suggesting that the shoeprints came from them. But during the state habeas hearing, Branon testified that he and Officer Robertson were the first responders at the store, before the paramedics or other officers, and that the shoeprints were there when he arrived. Branon's observation of the shoeprints was directly contrary to Horn's suggestion that paramedics or other officers left the prints. Had Branon's observation been disclosed, Browning could have used that evidence to bolster his contention that the shoeprints were left by the real killer. This makes Branon's observation exculpatory ...

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