Browning v. Baker

875 F.3d 444

Paul L. BROWNING, Petitioner–Appellant,

v.Renee BAKER, Warden; Adam Paul Laxalt, Attorney General of the State of Nevada, Respondents–Appellees.

No. 15-99002

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2017 San Francisco, California

Filed September 20, 2017

Amended November 3, 2017

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.

ORDER

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

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

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

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

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

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

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

IT IS SO ORDERED.

Dissent by Judge Callahan

OPINION

GOULD, Circuit Judge:

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

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

Under this procedural posture, a federal court's role is limited. Our role is only "to guard against extreme malfunctions in the state criminal justice systems." Davis v. Ayala , ––– U.S. ––––, 135 S.Ct. 2187, 2202, 192 L.Ed.2d 323 (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.

I

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

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

A

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

Josy testified that in December 1985, a month after Hugo's murder, police called her back to the station and presented her with a photographic lineup of twelve black men. The officers placed Browning's picture—taken in November 1985—in the "#5" position. According to an officer's report, Josy "immediately" explained to the officers that she thought she would not be able to identify the assailant because "she only saw him for a very slight moment from the side." Nonetheless, Josy examined the photos and stated that the men in photos #1, #6, and #11 had hair "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....