State court unreasonably applied U.S. Supreme Court precedent in denying capital defendant’s claim of prosecutorial misconduct under Brady. Browning was sentenced to death after a jury found him guilty of four crimes related to the robbery and murder of a jewelry store owner. The prosecution’s case depended in large part on the testimony of a witness (Randy) who claimed defendant asked him to help cover up the murder. The defense theory was that Randy’s Cuban friend was the true killer. After the Nevada Supreme Court affirmed his convictions, Browning sought state and federal habeas relief on prosecutorial misconduct and ineffective assistance of counsel grounds. The federal district court denied his petition and Browning appealed to the Ninth Circuit. Held: Reversed in part. Under Brady v. Maryland (1963) 373 U.S. 83, the prosecution’s suppression of favorable, material evidence from the defense violates due process. Evidence is material if there is a reasonable probability disclosure would have resulted in a different outcome. Here, the prosecutor failed to disclose evidence regarding bloody shoeprints at the crime scene, the benefit Randy received after trial in exchange for his testimony, and the victim’s exact description of the assailant’s hair (“wet,” “loose curls” versus a “Jheri-curl”), which did not match Browning’s Afro hairstyle. The shoeprint and hair evidence was favorable to the defense because it supported the defense theory that someone else killed the victim. The evidence that Randy expected a potential benefit in return for his testimony was favorable impeachment evidence because it explained why Randy might have been motivated to frame Browning for the murder. Considered collectively, the evidence was material because the prosecution’s case was weak and depended in large part on Randy and his girlfriend’s unreliable testimony, and the physical evidence was just as consistent with Browning being framed for murder as with him being the killer. The state court’s decision to the contrary was objectively unreasonable, and the district court should have granted relief on Browning’s Brady claims.
State court’s denial of defendant’s Napue claim did not involve unreasonable application of clearly established federal law. Under Napue v. Illinois (1959) 360 U.S. 264, a conviction obtained through the use of false testimony violates due process. A violation occurs where the prosecutor solicits false statements or merely allows false testimony to go uncorrected. Here, Browning argued that the police officer’s testimony concerning the bloody shoeprints implicated Napue because it left the jury with the mistaken impression the shoeprints were left by the first responders, even though (unbeknownst to the defense) another officer’s report indicated the shoeprints were there when the first responders arrived, which supported the defense theory someone else killed the victim. However, at the time the Nevada Supreme Court denied Browning’s claim, it was not clearly established under federal law that a police officer’s knowledge of false testimony may be attributed to the prosecution under Napue. (Reis-Campos v. Biter (9th Cir. 2016) 832 F.3d 968.) Because there was no evidence the prosecution knew at the time that the officer’s testimony about the shoeprints was misleading, the state court did not unreasonably apply clearly established Supreme Court precedent in denying defendant’s Napue claim.
State court’s denial of defendant’s IAC claim was based on unreasonable application of Strickland, where counsel failed to conduct adequate pretrial investigation. Browning argued he was denied his right to effective assistance of counsel (IAC) based on his trial counsel’s “wholesale failure to investigate and prepare for trial.” Considering trial counsel’s conduct as a whole, the court concluded that the Nevada Supreme Court applied Strickland to the facts of this case in an objectively unreasonable manner. To prove IAC, defendant must show trial counsel’s performance was deficient and that defendant was prejudiced by this deficiency. Here, Browning’s trial attorney called a police officer as a defense witness, but failed to interview the officer before trial, which invariably constitutes deficient performance. Counsel also failed to investigate the source of the bloody shoeprints. While counsel claimed that investigation might have disproved his theory that the prints were left by the true assailant, “[u]nder Strickland, counsel’s investigation must determine strategy, not the other way around.” While a decision not to investigate may be reasonable when counsel has reason to believe it would lead to inculpatory evidence, counsel had no reason to believe this in Browning’s case. Finally, counsel refused to allow his investigator to interview Randy and his girlfriend before trial. Counsel’s failure to investigate was prejudicial. The shoeprint evidence was uniquely exculpatory because it was evidence that someone other than defendant was in the jewelry store with the victim before the first-responders arrived, and the victim’s description of the assailant’s hair was powerful evidence of Browning’s innocence given the officer’s testimony that the victim was not mistaken about his description. Because the prosecution’s evidence was far from overwhelming, there is a strong possibility that, had this evidence been obtained through reasonable investigation, at least one juror would have had a reasonable doubt as to Browning’s guilt. [Editor’s Note: Judge Callahan dissented on the ground that the deferential standard of review under AEDPA compels the conclusion that the state court was not unreasonable in rejecting Browning’s IAC, Brady, and Napue claims].
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/15-99002.pdf
