United States v. Andrew Brown V. Ron Broomfield

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANDREW LAMONT BROWN,

Petitioner-Appellant,

v.

RONALD BROOMFIELD, Acting
Warden, San Quentin State Prison,

Respondent-Appellee.

No. 21-99001

D.C. No. 2:04-
cv-03931-JVS

OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted September 10, 2025
San Francisco, California

Filed August 14, 2026

Before: Richard R. Clifton, Jacqueline H. Nguyen, and
Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez

2 BROWN V. BROOMFIELD
SUMMARY
*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Andrew
Lamont Brown’s petition for a writ of habeas corpus under
28 U.S.C. § 2254 challenging his California conviction and
death sentence for first-degree murder.
The district court granted a certificate of appealability
(COA) as to Brown’s claims that he received ineffective
assistance of counsel during the penalty phase of his trial,
that he was incompetent to stand trial, and that he has an
intellectual disability that renders him ineligible for
execution under the Eighth Amendment. Brown sought to
expand the certificate of appealability to include three
additional claims. The panel applied the deferential standard
of review set forth in the Antiterrorism and Effective Death
Penalty Act (AEDPA).
Brown’s certified claim of ineffective assistance at the
penalty phase contained numerous subclaims raising two
general areas of concern: the failure to investigate and
present important mitigation and evidence, and the failure to
rebut uncharged acts introduced against Brown and to object
to evidence and arguments raised by state prosecutors.
• The panel held that the California Supreme Court
could have reasonably determined that Brown failed
to make a prima facie claim of ineffective assistance
because there was no evidence that trial counsel

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

BROWN V. BROOMFIELD 3

failed to investigate or make reasonable strategic
choices about Brown’s history of drug and alcohol
abuse; mental health conditions; family history of
abuse and neglect; gang ties; and poverty and
neighborhood history. Much of the new evidence
presented by Brown in his postconviction petitions
was cumulative of the evidence trial counsel already
presented at the penalty phase. Where trial counsel
did not present or focus on certain evidence, the
record reflects that these were strategic decisions by
trial counsel. Therefore, the California Supreme
Court could have reasonably concluded that trial
counsel did not render deficient performance. In
light of the doubly deferential standard of review
under AEDPA, the panel could not conclude that the
California Supreme Court’s rejection of Brown’s
ineffective assistance claim was objectively
unreasonable.
• The panel held that in view of the trial record in
which counsel presented several witnesses to refute
the State’s evidence that Brown perpetrated the
uncharged offenses, the California Supreme Court
reasonably rejected Brown’s claims that trial counsel
was ineffective for failing to call two individuals as
rebuttal witnesses; and that counsel was not deficient
in failing to present at the penalty phase certain of
Brown’s positive qualities, in failing to request a jury
instruction defining and clarifying life without
parole, or in failing to object to or rebut the
prosecutor’s argument at closing that Brown was a
“sociopath” who lacked remorse and would kill
again.

4 BROWN V. BROOMFIELD
• Because counsel’s performance was not deficient,
the panel did not address whether Brown was
prejudiced by any deficiency.
The panel held that based on the totality of the evidence,
the California Supreme Court did not make an unreasonable
factual determination that Brown failed to rebut the
presumption that he was competent to stand trial.
The panel held that the California Supreme Court
reasonably determined that Brown failed to make a prima
facie showing of intellectual disability under California’s
statutory test.
The panel declined to expand the COA to include three
uncertified claims in which Brown alleged (1) counsel’s
ineffective assistance at the guilt phase, (2) the
discriminatory exclusion of a prospective black juror, and
(3) the denial of a jury drawn from a fair cross-section of the
community.

COUNSEL
Saivandana Peterson (argued), Nicole Jeong, and Susel B.
Carrillo-Orellana, Deputy Federal Public Defenders;
Cuauhtémoc Ortega, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.
Vincent P. LaPietra (argued) and Lise Jacobson, Deputy
Attorneys General; Holly D. Wilkens, Supervising Deputy
Attorney General; James W. Bilderback II, Senior Assistant
Attorney General; Rob Bonta, California Attorney General;
Office of the California Attorney General, San Diego,
California; for Respondent-Appellee.

BROWN V. BROOMFIELD 5

OPINION

SANCHEZ, Circuit Judge:
On March 5, 1992, Andrew Lamont Brown was
sentenced to death after a California jury convicted him of
first-degree murder and robbery and found true the special
circumstance that he had killed Christina Ramirez while
engaging in robbery and with the personal use of a firearm.
After Brown was denied relief on direct appeal and in state
post-conviction proceedings, he filed the instant petition for
writ of habeas corpus under 28 U.S.C. § 2254. The district
court denied his petition but granted a certificate of
appealability as to Brown’s claims that he had received
ineffective assistance of counsel during the penalty phase of
his trial, that he was incompetent to stand trial, and that he
has an intellectual disability that renders him ineligible for
execution under the Eighth Amendment. Brown challenges
the district court’s denial of habeas relief and seeks
to expand the certificate of appealability to include
three additional claims. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253. We affirm the district court’s
denial of Brown’s habeas petition and decline to expand the
certificate of appealability.
I. BACKGROUND
The facts, as set forth by the California Supreme Court
on direct review in People v. Brown, 73 P.3d 1137, 1147–53
(Cal. 2003), are summarized as follows.
A. Guilt Phase
In November 1988, Andrew Lamont Brown was
determined to steal deep-dish tire rims from a truck. At the
time, Brown was living “off and on” in a home with Mark

6 BROWN V. BROOMFIELD
Bender, Broderick Fields, Andrew White, Percell
McClendon, and others. Brown asked Levi Gardner if he
wanted to buy some deep-dish tire rims. Gardner replied that
he would have to see them before committing to the
purchase, and Brown said he could obtain some. Brown told
White that he “was going to do a jack move”—rob someone
at gunpoint—“to get some rims,” and invited White to join
him. White declined.
On November 11, 1988, Brown, Fields, Bender, and
McClendon drove around in Bender’s Oldsmobile Cutlass,
looking for deep-dish rims to steal. That night, seventeen-
year-old Christina Ramirez was driving her husband’s 1985
red Nissan truck which had a Kenwood brand stereo and
amplifier and distinctive deep-dish tire rims, each bearing
small decorative holes and painted red to match the truck.
Brown spotted Ramirez’s truck and exclaimed, “[t]hose are
the ones we need.” They made a U-turn and followed the
red truck for two traffic lights. Ramirez was driving alone
in the truck. When she stopped at a red light, Bender pulled
up behind her. According to McClendon’s testimony,
Brown jumped out carrying a .38-caliber pistol, ran to the
driver’s side of the red truck, and fired one shot through the
window, shattering it. Brown then pulled Ramirez out and
got into the truck from the driver’s side, while Fields got in
from the passenger side. The two cars left the scene.
Several individuals witnessed the incident. Juan
Williams, whose Mercedes Benz stopped directly behind
Bender’s Cutlass, described seeing a young Hispanic male
between five feet three inches and five feet six inches tall
running up to the driver’s side of the red truck, throwing the
victim from the truck, and driving off in it. Williams
testified that he did not see a second man enter the truck on
the passenger side, although a police officer later testified at

BROWN V. BROOMFIELD 7

trial that, on the night of the murder, Williams reported
seeing two men running up to the truck.
Rena Stanfill’s car was stopped at the red light behind
Williams’ Mercedes. Stanfill saw two men exit from a mid-
sized “American car” in front of the Mercedes and run to the
red pickup truck. According to Stanfill, an African
American man about five feet ten inches tall ran to the
driver’s side of the truck and pulled a woman out, dropping
her so that she struck the pavement face-first.
1
A second
man, who was either Hispanic or African American, jumped
into the passenger side of the truck. Stanfill saw the two men
leave the scene in the truck. Because she was driving with
her windows rolled up and radio on, Stanfill did not hear the
gunshot.
Ramirez suffered a single gunshot wound to the neck.
The bullet entered the left side of her neck, traveled
downward, and lodged in her spine. Ramirez died from her
injuries on December 21, 1988. The bullet retrieved from
her body was consistent with having been fired from a .38-
caliber handgun.
Around 11:45 pm that night, Mark Bender, Fields, and
McClendon arrived at Perry Bender’s home. Mark was
visibly upset and blurted out: “I know he shot her. I know
she is hurt bad.” Soon after, Brown arrived in Ramirez’s red
truck, playing loud music on the stereo. Brown had a .38-
caliber handgun. When Perry asked how he had obtained the
truck, Brown replied that he gotten it in Riverside and that
he “[s]moked the bitch.” Sometime between 11:00 p.m. and
1:00 a.m., Gardner’s brother saw Brown sitting in a red truck

1
Brown and Broderick Fields are both African American and stand
approximately six feet tall.

8 BROWN V. BROOMFIELD
with a camper shell and deep-dish rims in front of Harb’s
Liquor Store/Market, the stereo playing loudly. Brown
asked him to tell Levi Gardner that he had some “deeps” for
Gardner.
The next day, Brown offered to sell a single deep-dish
rim to Gardner for $50. The rim was painted red and had
circular holes in it. Gardner asked to see all four rims before
committing to the purchase, so they drove to a remote
location in the hills and came upon a red pickup truck down
a dirt road. The truck had deep-dish rims and was missing
one from the front. Gardner had a “bad feeling” about the
deal and declined to buy the rims. Brown offered to lower
the price if Gardner helped him remove the other three rims,
but Gardner declined.
Kevin Davis testified that he had seen the red truck in the
Mead Valley hills in November 1988, had seen Brown in a
liquor store parking lot with a rim matching those on
Ramirez’s truck, and had seen Brown with a .38-caliber
handgun. Brown offered to sell Davis a Kenwood brand car
stereo, amplifier, and speakers, but he declined.
The day after the robbery, Brown, White, and a crowd of
people gathered in front of a liquor store in the early evening.
According to White, Brown described to the group how he
had acquired the red pickup truck, stating he “smoked the
bitch” who was driving it. When the group expressed
skepticism, Brown swore it was true and invoked his gang,
Fruit Town, as proof. Brown asked White to help him
remove the rims. Although White had experience in such
matters as a car thief, he declined to help because he heard
that Brown had shot a person to obtain the truck.
Acting on a tip, the Riverside County Sheriff’s
Department located and towed Ramirez’s truck from the

BROWN V. BROOMFIELD 9

hills. It was missing one wheel and all of its stereo
components. Police found heavy scratch marks around the
lug nuts, which suggested that someone had tried to remove
the remaining wheels with the wrong tool. Blood was
discovered in the door jamb on the driver’s side. Brown
confronted Rick Kinney, an acquaintance, about the truck’s
disappearance, saying: “Where’s my truck at? I took that
truck that you’re riding around today, that red truck in the
hills, that was mine.”
Brown was charged with robbery and first degree murder
with special circumstances. At trial, defense counsel
presented a theory that Brown was not the shooter, relying
on the recollections of two eyewitnesses, Williams and
Stanfill, who initially recalled that the shooter was a
Hispanic man, not a Black man. Noting that Fields was
related to the Bender brothers, defense counsel asserted that
the other participants in the crime had closer relationships to
each other and suggested they were protecting themselves by
pointing the finger at Brown as the shooter.
The jury convicted Brown in 1992, finding true a special
circumstance allegation that Brown committed the murder
while engaged in the commission of a robbery, and two
enhancement allegations that Brown personally used a
firearm in the commission of his crimes.
B. Penalty Phase
1. Evidence in Aggravation
The State presented testimony from several witnesses
describing five other uncharged violent offenses allegedly
committed by Brown in the same year as the underlying
murder. Three of the alleged crimes involved a carjacking
or attempted carjacking by Brown and others using a .38-

10 BROWN V. BROOMFIELD
caliber handgun, and one of those robberies resulted in the
shooting death of a victim. The uncharged offenses are
discussed in more detail infra pp. 38–42.
The State also presented testimony from the victim’s
family. Susie Barraza, Christina Ramirez’s mother, testified
that Christina was seventeen years old when she was shot
and killed. Christina and her husband Joe had gotten married
less than a month before the crime, and their wedding
reception was scheduled for the day after the shooting. After
Christina’s death, her mother became afraid to venture out at
night and began therapy. Maria Ramirez, Christina’s
mother-in-law, testified that nothing was the same after
Christina’s death. Her son Joe became depressed, stopped
working, and obtained several guns. He stayed in his
bedroom for nearly a year, coming out only to eat and go to
the bathroom. After threatening suicide and displaying
anger, Joe was committed for observation and counseling.
Maria and her husband never strayed far from home in order
to keep watch over their son.
2. Evidence in Mitigation
Brown did not testify at the penalty phase but called
several witnesses to raise doubt about his involvement in the
uncharged offenses and to present evidence about his
childhood abuse and neglect, mental health issues and
substance abuse, and chaotic upbringing. Mitigation
witnesses included family and friends, a former Department
of Social Services (“DSS”) employee, a former principal,
and three expert witnesses.
Several witnesses testified to the severe physical and
psychological abuse Brown witnessed and experienced as a
child. Brown’s mother, Catherine Williams, testified that
she gave birth to him when she was sixteen years old. They

BROWN V. BROOMFIELD 11

lived with his father Oscar Brown, who often struck
Williams. Catherine left Oscar after he fired a gun at her
while she was holding Brown. Wesley Armstrong, Brown’s
uncle, testified that when Brown was five or six years old,
Armstrong went to Catherine’s apartment and found Brown
alone and apparently crying in a dark closet with the door
closed. Later, Brown appeared to be in pain and had bruises
and open wounds on his back, as though he had been
whipped with an electrical cord or clothes hanger. Brown
was later removed from his mother’s custody and placed
with a foster family and then with his grandmother, Lula
Armstrong McMaryion, under whose care he remained until
he turned 17 or 18 years old.
When Brown was in kindergarten, a school nurse filed a
report indicating that he had old scars on his back and the
front of his chest and thighs, some swollen and discolored
areas, old scars on and under the surface of his penis, and
scabs. Brown explained that his mother’s friend “RC” had
whipped him with an extension cord. The report noted that
his mother Catherine told Brown the whippings were good
for him.
Geneva Cofield, Brown’s foster parent, and her daughter
Kay testified that when five-year-old Brown came to live
with them, he looked unhealthy, malnourished, and had
physical injuries that covered most of his body. Some
injuries were old and some were new, and included cigarette
burns, wounds on his penis, back and buttocks, and injuries
that would take up to six weeks to heal. The injuries were
reportedly inflicted by Catherine’s then-boyfriend, “RC” or
Ricardo Laurie.
Defense expert psychiatrist Dr. Chin Choo testified that
when she was a psychiatry resident at the Martin Luther

12 BROWN V. BROOMFIELD
King Medical Center, she evaluated a seventeen-year-old
Brown who had been admitted to the emergency room. On
January 16, 1987, Brown was delusional, disoriented, and
psychotic, and stated that he had smoked Sherman cigarettes,
i.e., cigarettes laced with phencyclidine, or “PCP.” Dr. Choo
prescribed Haldol, a psychotropic drug used to correct
symptoms of psychosis but could not confirm that it was
administered. Hospital notes recorded that Brown said he
was paranoid, had used cocaine, and needed sleep. The next
day, Brown was alert and cooperative and admitted to drug
use. His behavior was consistent with someone coming
down from a psychotic state. Dr. Choo testified that
Brown’s psychosis could have been the result of his PCP
use.
Defense expert Dr. Nancy Kaser-Boyd, a clinical
psychologist, offered her opinion about the severity of
Brown’s childhood abuse, the effects from it, and the
treatments Brown should have received. To form her
opinion, she reviewed Brown’s DSS records, school records,
IQ testing done by neuropsychologist Dr. Vincent Nunno,
and interviews with family members. She also conducted
personal interviews of Brown and his family members. Dr.
Kaser-Boyd testified that Brown was one of the most
physically abused children she had ever seen. In addition to
the beatings and burnings, Brown was subjected to
psychological abuse, including being locked in a dark closet
and having his clothes taken away so he could not escape.
Dr. Kaser-Boyd opined that Brown showed symptoms of
posttraumatic stress disorder (“PTSD”) and explained that
children who have suffered a similar level of abuse and
trauma generally cannot develop normally either cognitively
or emotionally. Such children are at higher risk for drug and

BROWN V. BROOMFIELD 13

alcohol abuse and have a much greater degree of anxiety and
depression.
Brown’s background was consistent with his low school
performance and IQ. Tests revealed that his IQ of 77 was
within the borderline intelligence level between low average
and intellectually disabled. Brown attended six different
schools between seventh and eleventh grade because his
grandmother allowed him to switch school to be with his
friends. Dr. Kaser-Boyd opined that Brown should have
been placed in special education in light of his cognitive
deficits, hyperactivity, and the trauma he had suffered, but
his grandmother was not sophisticated enough to attend to
Brown’s special needs.
Dr. Kaser-Boyd also opined that with Brown’s history of
abuse and trauma, he needed long-term therapy. Though
Catherine was told that Brown was hyperactive, she never
sought treatment for him. Similarly, school and DSS
officials told his grandmother Lula that Brown needed
professional counseling, and needed to be placed in special
education and to receive treatment for his hyperactivity.
Lula did not follow up on these recommendations. Dr.
Kaser-Boyd testified that Brown did not have an available or
appropriate adult role model or mentor.
Defense expert Dr. James H. Johnson, Jr., geography
professor and director of the Center of Urban Poverty for Los
Angeles County at the University of California, Los
Angeles, testified about the educational, financial, and
professional disadvantages for young black males in
Compton where Brown grew up. Several witnesses also
testified about the dangerous neighborhood where Brown
was raised on Piru Street in Compton. The neighborhood
was a center of drug-dealing and gang activity, with daily

14 BROWN V. BROOMFIELD
shootings and other criminal activity. Brown and his
grandmother often slept on the floor because they were
afraid that gunshots would come through the windows.
3. Rebuttal Evidence and Closing Arguments
In rebuttal, the State presented Sandra Thomas, who met
Brown in 1987 and viewed him like a little brother. Brown
told her about the robberies he committed, like stealing a
Suzuki and a Nissan, stripping them down, and selling them.
Once she and Brown saw a Suzuki drive by and he said, “I’m
going to get that bitch . . . . I’m jacking that.” Thomas
described Brown as appearing happy when he talked about
robbing people.
In closing argument, the prosecutor reviewed the nature
and circumstances of the crime and reminded the jury that it
had rejected the defense’s argument at the guilt phase that
Brown was intoxicated on the night of Ramirez’s murder.
The prosecutor also explained that Brown would get excited
about robbing people, did not express remorse and instead
bragged about the murder, and made conscious decisions to
commit the murder and the uncharged crimes. The
prosecutor argued that Brown would be a danger to society
if he were sentenced to life without parole (“LWOP”), that
Brown “is not suffering from mental disease other than being
a sociopath,” and described Brown as a “sociopath on
substance abuse” who did not deserve sympathy or mercy.
The defense argued in closing that the jury should not
only be angry with Brown but also with the people who
failed him. Defense counsel explained that the murder and
the uncharged crimes were committed by the same group,
and because of Brown’s low IQ and early substance abuse,
it was unlikely that he was the ringleader. Counsel also
stated that it was not Brown’s choice to be abused, to grow

BROWN V. BROOMFIELD 15

up in a hopeless and violent neighborhood, and to receive
none of the adult guidance, education, or mental health
treatment he needed. Counsel explained that Brown’s
breakdown and hospitalization at the age of seventeen
marked the beginning of his involvement in the one-year
spree of uncharged crimes that ended in Ramirez’s death.
The case went to the jury the afternoon of March 4, 1992.
A verdict of death was returned the following day.
II. PROCEDURAL HISTORY
The California Supreme Court affirmed Brown’s
conviction and death sentence on direct appeal. Brown, 73
P.3d 1137. In 2004, the United States Supreme Court denied
certiorari. Brown v. California, 541 U.S. 1045 (2004).
Brown filed his first state postconviction petition in 2004.
Brown initiated this federal habeas proceeding on June
2, 2004, and filed his petition on May 16, 2005. The district
court stayed federal habeas proceedings so that Brown could
return to state court to exhaust his claims. Brown then filed
a second state postconviction petition. On May 23, 2008, the
California Supreme Court summarily denied both state
postconviction petitions.
Brown then filed an amended federal habeas petition
with the district court. On December 18, 2017, the district
court denied Brown’s motion for an evidentiary hearing, and
on February 4, 2021, the district court denied Brown’s
petition on the merits. Brown timely appealed.
III. STANDARD OF REVIEW
“We review a district court’s denial of habeas relief de
novo.” Grimes v. Phillips, 105 F.4th 1159, 1165 (9th Cir.
2024). Because Brown filed his federal petition after April

16 BROWN V. BROOMFIELD
24, 1996, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs our review. Id.; see 28 U.S.C.
§ 2254(d). Under AEDPA, we defer to a state court’s
decision on any claim that was adjudicated on the merits
unless Brown demonstrates that the state court’s decision
(1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or
(2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2).
“We review the last reasoned state court decision.” Scott
v. Broomfield, 173 F.4th 1131, 1145 (9th Cir. 2026). Where
there has been a summary denial by the California Supreme
Court, we apply AEDPA deference to that determination.
See Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022)
(“[T]he California Supreme Court’s summary denial of [a
petitioner’s] claims—both certified and uncertified—is a
decision on the merits and thus entitled to AEDPA
deference.”); see also Cullen v. Pinholster, 563 U.S. 170,
187 (2011) (holding that AEDPA deference “applies even
where there has been a summary denial”). Under such
circumstance, “a habeas court must determine what
arguments or theories . . . could have supported [] the state
court’s decision . . . .” Harrington v. Richter, 562 U.S. 86,
102 (2011). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.” Id. at 101 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
“Under California law, the California Supreme Court’s
summary denial of a habeas petition on the merits reflects
that court’s determination that ‘the claims made in th[e]

BROWN V. BROOMFIELD 17

petition do not state a prima facie case entitling the petitioner
to relief.’” Pinholster, 563 U.S. at 188 n.12 (quoting In re
Clark, 855 P.2d 729, 741 –42 (Cal. 1993)). The California
Supreme Court “generally assumes the allegations in the
petition to be true, but does not accept wholly conclusory
allegations, and will also review the record of the trial to
assess the merits of the petitioner’s claims.” Id. (cleaned
up); see also In re Figueroa, 412 P.3d 356, 364 (Cal. 2018)
(“This court evaluates a petition by asking whether,
assuming the petition’s factual allegations are true, the
petitioner would be entitled to relief. If no prima facie case
for relief is stated, the court will summarily deny the petition.
If, however, the court finds the factual allegations, taken as
true, establish a prima facie case for relief, the court will
issue an order to show cause.” (cleaned up)). For claims that
were summarily denied, our review is not limited to whether
the petitioner “had made out a prima facie case in his state
habeas petition”; instead, we must evaluate the petitioner’s
claims “in their entirety to determine whether the California
Supreme Court could reasonably reject those claims on the
merits.” Montiel v. Chappell, 43 F.4th 942, 957 n.13 (9th
Cir. 2022).
IV. CERTIFIED CLAIMS
2

A. Ineffective Assistance of Counsel at Penalty Phase—
Claim 36
Brown asserts a certified claim of ineffective assistance
of counsel at the penalty phase with numerous subclaims.

2
The State argues that Brown is procedurally barred from receiving
relief on his certified and uncertified claims. Because we do not find
grounds to afford relief on the merits of Brown’s claims, we decline to
address whether procedural default would otherwise apply. See Lewis v.
Andes, 95 F.4th 1166, 1185 n.11 (9th Cir. 2024); see also Franklin v.

18 BROWN V. BROOMFIELD
His claim raises two general areas of concern about trial
counsel’s alleged ineffectiveness: the failure to investigate
and present important mitigation evidence, and the failure to
rebut uncharged acts introduced against Brown and to object
to evidence and arguments raised by state prosecutors.
Below, we address each of these assertions and their
associated subclaims.
A defendant has a Sixth Amendment right to the
effective assistance of counsel at the guilt and penalty phases
of a capital trial. Strickland v. Washington, 466 U.S. 668,
684–87 (1984). To establish a claim of ineffective assistance
of counsel, a petitioner must show that (1) “counsel’s
performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Id. at 687. “The
benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686.
To be deficient, a petitioner must show that his counsel’s
representation fell below an objective standard of
“reasonableness under prevailing professional norms.” Id.
at 688. Federal courts apply a strong presumption that
counsel’s representation was “within the wide range of
reasonable professional assistance.” Id. at 689. The
Supreme Court has not “articulate[d] specific guidelines for
appropriate attorney conduct” but has instructed that the
reasonableness of counsel’s actions is assessed under the

Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are
empowered to, and in some cases should, reach the merits of habeas
petitions if they are . . . clearly not meritorious despite an asserted
procedural bar.” (citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997))).

BROWN V. BROOMFIELD 19

prevailing professional norms at the time of the challenged
actions, Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation
omitted), and in view of “counsel’s perspective at the time,”
Strickland, 466 U.S. at 689. “Counsel in a death-penalty
case has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary.” Scott, 173 F.4th at 1145 (quoting Andrus v.
Texas, 590 U.S. 806, 814 (2020) (per curiam)). As the
Supreme Court explains, “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690–91.
To establish prejudice, a petitioner “must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 112.
Review of ineffective assistance claims under § 2254(d)
is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009). “The question ‘is not whether a federal
court believes the state court’s determination’ under the
Strickland standard ‘was incorrect but whether [it] was
unreasonable—a substantially higher threshold.’” Id.
(alteration in original) (quoting Schriro v. Landrigan, 550
U.S. 465, 473 (2007)); see also Richter, 562 U.S. at 105
(“The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.”).

20 BROWN V. BROOMFIELD
1. Counsel’s Failure to Investigate and Present
Additional Mitigating Evidence at the Penalty
Phase
We begin with Brown’s claim that his trial counsel was
deficient by failing to investigate and present important
mitigating evidence during the penalty phase of his trial.
Specifically, Brown contends that despite having
information that would have caused competent counsel to
investigate further, counsel failed to investigate and present
evidence of Brown’s drug and alcohol addictions, his mental
decompensation in the year before the murder, history of
family sexual and physical abuse, poverty and
environmental conditions, and evidence that Brown was not
affiliated with any gang.
With his state postconviction petition, Brown submitted
three new expert declarations addressing evidence of
mitigation that, according to Brown, should have been
investigated and presented by trial counsel at the penalty
phase. Dr. June Clausen reviewed documents regarding
Brown’s social, family, educational, and medical histories
and provided a social history as well as psychological
assessments of Brown in 2005 and 2008.
3
Dr. Pablo Stewart,
a clinical and forensic psychiatrist, conducted a psychiatric
assessment of Brown in 2007 based on Brown’s documented
social, medical, and psychiatric history as well as two
interviews with Brown. Dr. Dale Watson, a psychologist
specializing in forensic psychology, conducted tests and
interviews of Brown in 2002 to evaluate his
neuropsychological functioning. The new mitigation
evidence also included lay witness declarations from family

3
Dr. Clausen did not interview Brown as part of her evaluation.

BROWN V. BROOMFIELD 21

and friends that supported the experts’ summaries of
Brown’s background.
Dr. Clausen examined Brown’s family history of
intergenerational neglect and child abuse. Brown’s mother
Catherine had inconsistent access to food and was beaten by
her stepfather Laurence. Catherine was also sexually abused
by Laurence. She became pregnant with Brown at 14 or 15
years old and was ill for most of her pregnancy and lacked
any prenatal care. Catherine eventually moved in with Oscar
Brown, who was physically abusive of both Catherine and
Brown.
Dr. Clausen observed that Brown’s early life was fraught
with violence, and he experienced physical abuse as well as
a deprivation of food, nurturing, and sense of stability.
Brown “suffered physical abuse and neglect at the hands of
his primary caretakers,” and was removed from Catherine’s
care after school officials reported that he had been
physically abused. He was placed into a foster home for
approximately nine months. Although Brown saw a
psychiatrist six times while in foster care, neither Catherine
nor his grandmother Lula followed up on recommendations
to treat Brown’s hyperactivity or seek professional
counseling for him.
Dr. Clausen also discussed the gang environment,
violence, and poverty prevalent in Compton during Brown’s
childhood living on Piru Street. Brown was often chased and
beaten by other children in the neighborhood, and appeared
to be a victim of gang bullying. The community and family
in which Brown was raised were poverty-stricken. For
example, Dr. Clausen noted Brown’s medical neglect and
lack of access to prescription medication from medical
providers to treat his conditions.

22 BROWN V. BROOMFIELD
Agreeing with Dr. Kaser-Boyd, Dr. Clausen opined that
“[n]o healthy and supportive adult was available” to guide
Brown. Brown was neglected in every way by his
caretakers, who lived in a chaotic environment and were not
able to attend to his basic needs. Dr. Clausen opined that it
was highly likely that Brown was also sexually abused by
Laurence, which contributed to his lack of faith in adults.
Because of the abuse and neglect, Brown’s “development
was arrested and his cognitive and emotional development
impeded.”
Childhood trauma also impacted Brown’s academic
performance and adolescent development. Brown attended
at least eight schools from kindergarten through eleventh
grade. The frequent change of schools and mental health
problems negatively impacted his school performance and
academic achievement. Brown received low test scores
through sixth grade and performed even worse in middle and
high school yet was permitted to progress on through grade
levels. Despite his poor academic performance, Brown was
never placed in special education classes.
Dr. Clausen also discussed Brown’s lifelong substance
abuse. Because Brown did not receive treatment despite
showing symptoms of PTSD in early childhood and major
depressive disorder in adolescence, he self-medicated with
drugs and alcohol. Brown began drinking alcohol when he
was around eight years old, using and selling marijuana and
PCP at age thirteen, and by age sixteen, he was charged with
felony possession of PCP and marijuana. Dr. Clausen
reviewed reports from friends and family detailing that by
the time Brown was sixteen, he was using large amounts of
PCP and cocaine and was acting “crazy.” Declarants
reported that Brown had developed addictions to alcohol,
marijuana, and cocaine and that he had become paranoid and

BROWN V. BROOMFIELD 23

delusional. He thought people were trying to kill him and
once tried to burn a tattoo from his body using a cigarette
lighter. Brown tried to sell cocaine to make money but often
used his own supply and would become desperate for more
and steal or start a fight to get money. Dr. Clausen
concluded that Brown’s symptoms were consistent with
anxiety disorder, mood disorder, psychotic disorder, and
polysubstance dependence. Brown was genetically
vulnerable to the development of psychiatric illnesses and
substance abuse issues, and according to Dr. Clausen,
Brown’s substance abuse likely exacerbated his mental
health conditions.
Dr. Stewart conducted a psychiatric assessment of
Brown in April and May 2007 to identify the significant
factors affecting his mental and psychological development
and functioning and to render an opinion as to Brown’s
mental state at the time of the murder. Like Dr. Clausen, Dr.
Stewart concluded that Brown was genetically vulnerable to
the development of psychiatric illnesses and substance abuse
issues based on the history of mental illness in his family.
Dr. Stewart also agreed that Brown’s substance abuse likely
exacerbated his mental health symptoms. Brown’s early use
of alcohol and drugs was a common type of self-medication
for survivors of childhood victimization. He noted that
marijuana in high doses, which Brown was allegedly taking,
when mixed with alcohol can cause hallucinations and
delusions and that cocaine and that PCP can cause full-
blown paranoid psychosis, agitation, and aggression.
Dr. Stewart opined that in 1987, the year before the
underlying offense, Brown’s “mental stability was
noticeably compromised and he appears to have been
decompensating at a fairly rapid rate. He began displaying
signs of acute mental and emotional disturbance, including

24 BROWN V. BROOMFIELD
depression, suicidality, extreme behavioral disorganization
consistent with psychosis, and illogical thoughts and
behavior.” Dr. Stewart noted Brown’s hospitalization in
January 1987 after attempting to drive off the road and that
he appeared to be in a delusional and psychotic state when
he presented at the emergency room. Dr. Stewart also noted
other psychotic episodes and extreme paranoia reported by
Brown’s family, including a return to the hospital the
following month after Brown shot himself in the foot and his
attempt to burn a tattoo from his body with a cigarette
lighter. By the summer of 1988, Brown was reportedly
drinking heavily, using cocaine and marijuana on a daily
basis, and regularly ingesting PCP.
Dr. Stewart concluded that at the time of the underlying
offense, Brown “was suffering from extreme mental and
emotional disturbances which may have compromised his
ability to appreciate the criminality of his conduct and to
conform his conduct to the requirements of the law.” His
mental functioning was substantially impaired by “(1) the
effects of stimulant-induced psychotic disorder, (2) his
history of severe trauma and symptoms consistent with
[PTSD], (3) chronic poly-substance abuse, and (4) likely
long-standing mild organic dysfunction, with significant
signs of executive function impairment.” Dr. Stewart
believed that when Brown committed each of the offenses
that the prosecutor introduced in aggravation at the penalty
phase, he was suffering from extreme mental and emotional
disturbances similar to those he was experiencing at the time
of the murder.
Dr. Watson reviewed previous neurological tests
administered to Brown in 1991 by neuropsychologist Dr.
Vincent Nunno, and conducted new testing in 2001 and 2002
to assess Brown’s neuropsychological functioning. In a

BROWN V. BROOMFIELD 25

neuropsychological battery test from 1991, Brown’s full
scale IQ score was 77, suggesting abnormal functioning of
the brain and potential learning disabilities. According to
Dr. Watson’s additional testing, Brown’s overall IQ fell
within the average range at a score of 90, but his
performance IQ was within the low average range, showing
neurological dysfunction.
Dr. Watson found Brown to be mildly neurocognitively
impaired with problems in higher order problem solving and
executive functions, which suggests some disruption of
frontal lobe functions. Dr. Watson explained that the
characterization of Brown’s impairments as “mild” means
that his neuropsychological functioning is “significantly
below average.” Dr. Watson concluded that “Brown likely
suffers from long-standing mild organic dysfunction, with
significant signs of executive function impairment.”
a. Failure to Present Evidence of Alcohol and
Substance Abuse
Brown sets forth a number of subclaims asserting that
trial counsel was deficient in failing to investigate and
present evidence during the penalty phase relevant to several
areas of mitigation. Brown’s first two subclaims are based
on counsel’s asserted failure to investigate and explain the
cause and effects of his early, excessive, and long-term
drinking and drug abuse. Brown relies upon Porter v.
McCollum, 558 U.S. 30 (2009) and Jackson v. Calderon, 211
F.3d 1148 (9th Cir. 2000) to support the argument that long-
term substance abuse is highly probative mitigating
evidence. He further relies upon Rompilla v. Beard, 545
U.S. 374 (2005), and Wiggins v. Smith, 539 U.S. 510 (2003),
in which the Court found prejudice as a result of counsel’s

26 BROWN V. BROOMFIELD
failure to adequately investigate and present mitigating
evidence.
These cases are distinguishable because the state court
record in those cases included evidence of the deficient
investigations performed by counsel. See Porter, 558 U.S.
at 39–40; Rompilla, 545 U.S. at 382–91; Wiggins, 539 U.S.
at 517–18, 524–28; Jackson, 211 F.3d at 1161–63. Here, in
contrast, Brown did not submit any declaration or evidence
to show the scope of counsel’s investigation, what avenues
of investigation were pursued, whether counsel failed to
follow up on any red flags, or whether counsel decided to
cease further investigation based on what was discovered.
More importantly, Brown cannot demonstrate that counsel
was unaware of or failed to investigate Brown’s substance
abuse history. The record instead supports a determination
that counsel conducted a reasonable investigation and made
strategic decisions about how to present Brown’s history of
drug and alcohol use to the jury at the penalty phase. See
Strickland, 466 U.S. at 690–91.
Counsel knew, based on defense investigator interviews,
that when Brown was living in Compton and Perris, he was
selling and smoking marijuana and PCP, using cocaine, and
drinking alcohol. Counsel presented evidence about
Brown’s alcohol and substance use through Dr. Kaser-Boyd
and Dr. Choo. Dr. Kaser-Boyd testified that Brown started
drinking “heavily” from the age of nine, and that his
substance abuse served to numb him to early abuse and
dysfunction within his family. She explained that as a result
of his childhood abuse and trauma, Brown showed
symptoms of PTSD, had difficulty developing normally, and
self-treated his anxiety and depression with drugs and
alcohol. Dr. Choo testified that Brown was in a psychotic
state when he was hospitalized after smoking cigarettes

BROWN V. BROOMFIELD 27

laced with PCP, and that his psychosis could have been the
result of his PCP use. There is thus no evidence in the record
that Brown’s trial counsel was unaware of or failed to
investigate Brown’s prior history of alcohol and drug use.
It is true that trial counsel did not focus extensively on
his substance abuse, as was presented in postconviction
reports from Dr. Clausen and Dr. Stewart. But tactical
considerations supported trial counsel’s apparent decision to
avoid doing so. During voir dire, several jurors specified
that they were “against all drug use” or had strong feelings
about the use of illegal drugs. As Brown himself recognizes,
his trial occurred at a time when large segments of society
believed that the prevalence of crack cocaine had given rise
to young, violent, and remorseless “super-predator[s].”
Rather than focus on Brown’s extensive alcohol and drug
abuse and drug dealing to support his addictions, counsel had
Dr. Kaser-Boyd emphasize that Brown used drugs and
alcohol to relieve the pain from his childhood trauma. Trial
counsel could have reasonably determined that highlighting
extensive drug and alcohol use would be harmful rather than
mitigating. See Mayfield v. Woodford, 270 F.3d 915, 931
n.17 (9th Cir. 2001) (en banc) (“We note that juries are
unlikely to favor defenses based on abuse of dangerous
drugs in evaluating a defendant’s culpability for violent
behavior.”); Strickland, 466 U.S. at 690 (“[S]trategic choices
made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”). For
these reasons, the California Supreme Court could have
reasonably determined that counsel reasonably investigated
and presented evidence about Brown’s drug and alcohol
abuse at the penalty phase.

28 BROWN V. BROOMFIELD
b. Failure to Present Evidence of Mental Health
Brown next asserts that trial counsel failed to investigate
known evidence of his mental conditions and failed to
present and explain his mental health issues beyond age five,
including those caused by his substance abuse and brain
damage. According to Brown, the evidence presented by
counsel was limited to Dr. Kaser-Boyd’s testimony about
Brown’s early childhood and omitted vital information about
his psychiatric decompensation in the two years leading up
to the underlying offense. Brown also argues that none of
the testifying experts had the requisite expertise to opine on
Brown’s mental illness, impairments, or addictions.
Contrary to Brown’s arguments, the record confirms that
counsel reasonably investigated and presented evidence
concerning Brown’s mental health issues and brain
condition at various points throughout his life through
qualified expert opinions. Dr. Choo described Brown’s
drug-induced psychotic episode which led to his admittance
to a hospital at age seventeen. Dr. Kaser-Boyd—a clinical
psychologist who specialized in psychological assessment
and family violence—also extensively testified to Brown’s
mental health issues.
Specifically, Dr. Kaser-Boyd testified that the abuse
Brown endured prevented him from developing trust in
adults, that Brown suffered secondary trauma because he
observed abuse by his mother’s male partners, and that his
trauma was exacerbated by the drug dealing and shootings
on Piru Street in Compton. Dr. Kaser-Boyd explained to the
jury that Brown’s childhood trauma and upbringing resulted
in developmental arrest, feelings of distrust and
vulnerability, self-treatment through drug use and alcohol,
PTSD, and lower school performance and IQ. In addition,

BROWN V. BROOMFIELD 29

counsel presented evidence that Brown was prescribed
mental health treatment but never received it.
Brown contends that trial counsel was aware of “clear
indicators” of brain damage, such as low academic
achievement, learning disabilities, hyperactivity, and low IQ
scores, but failed to present this evidence to the jury or to
experts. The record belies his claim. Trial counsel
investigated Brown’s brain condition by retaining another
expert, Dr. Nunno, who performed a variety of neurological
tests on Brown in 1991. That counsel retained but did not
present Dr. Nunno or his evaluation indicates that a strategic
choice was made, which is entitled to a “strong presumption”
of reasonableness. Richter, 562 U.S. at 104; see also Dunn
v. Reeves, 594 U.S. 731, 740 (2021) (per curiam)
(concluding under AEDPA that it was reasonable to find that
counsel did not perform deficiently when they failed to hire
a particular expert because “we simply do not know what
information and considerations emerged as counsel
reviewed the case and refined their strategy”).
Trial counsel also presented through Dr. Kaser-Boyd
that Brown had poor academic achievement, should have
been placed in special education to help with his
developmental delays in intellectual ability and attention
deficits, had hyperactivity, a history of severe abuse, and
possibly suffered from organic brain damage. Dr. Kaser-
Boyd also conveyed Dr. Nunno’s neurological findings from
1991 that Brown’s full scale IQ score was 77, his verbal IQ
score was 76, and his performance IQ score was 83, all
within average ranges.
4
In short, the record does not support

4
Contrary to Brown’s allegation, Dr. Kaser-Boyd did not recommend
further testing to determine if Brown suffered organic brain damage. She
testified that she was not qualified to assess organic brain damage but

30 BROWN V. BROOMFIELD
Brown’s assertion that trial counsel failed to investigate and
present evidence concerning brain damage and intellectual
deficits.
Brown also contends that counsel failed to adduce
evidence of his rapid mental decompensation in the two
years before the murder, as reflected in Brown’s drastic
behavioral changes, daily substance use, and multiple
delusional episodes. This presents a closer question, as
admitting such evidence at the penalty phase would not have
contradicted the defense theory that Brown suffered abuse,
had untreated trauma, self-medicated with drugs and
alcohol, had intellectual deficiencies, and was surrounded by
a hopeless environment, which led to a psychotic breakdown
at age seventeen. Such evidence could have allowed the jury
to understand that Brown was suffering from extreme mental
and emotional disturbances at the time he allegedly
committed the underlying murder and other violent
uncharged offenses introduced in aggravation by
prosecutors.
As previously discussed, however, it appears that
counsel strategically avoided focusing on Brown’s daily
drug use, selling drugs to support his addiction, and
increasingly erratic and paranoid behavior because such
evidence could have portrayed Brown in a more
unsympathetic and dangerous light. As the Supreme Court
explained in Pinholster, federal courts sitting in habeas must
“affirmatively entertain the range of possible reasons []
counsel may have had for proceeding as they did.” 563 U.S.
at 196 (internal quotation marks omitted). The record here
demonstrates that counsel presented two experts to testify

based on the results given by Dr. Nunno, there was an indication that
Brown could be brain damaged.

BROWN V. BROOMFIELD 31

about Brown’s mental health condition and brain
impairments at different points in his life, and retained but
ultimately did not use another expert (Dr. Nunno) for reasons
that are unclear. See Burt v. Titlow, 571 U.S. 12, 23 (2013)
(“It should go without saying that the absence of evidence
cannot overcome the ‘strong presumption that counsel’s
conduct [fell] within the wide range of reasonable
professional assistance.’” (alteration in original) (quoting
Strickland, 466 U.S. at 689)). These considerations as to how
to present Brown’s cognitive state to the jury reflected
strategic decisions made after counsel engaged in a
reasonable investigation and retention of experts. See Bell
v. Cone, 535 U.S. 685, 702 (2002). Under the
circumstances, we cannot conclude that the state court’s
dismissal of the ineffective assistance of counsel claim was
objectively unreasonable. See Miles v. Ryan, 713 F.3d 477,
487 (9th Cir. 2013) (“Because [counsel’s] decision not to
focus on drug addiction appears to have been motivated by
reasonable strategic concerns, that decision is deserving of
great deference under Strickland and Pinholster.”).
c. Failure to Present Evidence of Sexual and
Physical Abuse of Brown’s Mother
Brown’s fourth subclaim is that counsel failed to
adequately investigate and present evidence that Brown’s
grandmother Lula McMaryion and her partner, Laurence
McMaryion, sexually and physically abused his mother
Catherine for years and failed to follow up on the possibility
that Laurence could be Brown’s father. In Brown’s view,
such evidence contradicted counsel’s depiction of his
caregivers as mostly loving and benign.
Trial counsel introduced substantial evidence of abuse
and neglect by Brown’s caregivers. Several witnesses

32 BROWN V. BROOMFIELD
testified about Brown having new and old wounds and scars
when he was removed from his Catherine’s home, that
Catherine would steal Brown’s clothes and lock the door so
that he could not leave, that Ricardo Laurie burned Brown
with cigarettes and whipped him with electrical cords, that
Brown was once found locked in a dark closet, that Brown
was afraid to ask Catherine for food because he did not want
to get whipped, and that the injuries Brown sustained likely
occurred over a period of time indicating a pattern of abuse.
Dr. Kaser-Boyd testified that Brown was one of the most
physically abused children she had ever seen and had been
subjected to physical and psychological abuse that later
manifested in symptoms of PTSD.
As to Lula and Laurence’s abuse of Catherine
specifically, counsel presented testimony at the penalty
phase that Catherine was physically abused by Lula and
Laurence; that Laurence frequently physically abused Lula’s
children when they were younger and, at that time, was
emotionally unpredictable; and that Catherine eventually
sought and received therapy to deal with the abuse she
suffered.
5
Counsel also investigated whether Lula or
Laurence abused Brown and apparently did not obtain
information leading to a stronger possibility of physical or
sexual abuse.
Given the extensive evidence of Brown’s own abuse and
neglect, additional evidence of abuse suffered by Catherine
is largely cumulative of the evidence defense counsel
already introduced. Brown does not therefore demonstrate
that counsel’s investigation was deficient, nor that the

5
As Brown notes, counsel possessed information from defense
investigator interviews that Laurence had sexually abused Catherine.
That information was not presented during the penalty phase.

BROWN V. BROOMFIELD 33

decision to limit the evidence regarding multigenerational
abuse was unreasonable.
d. Failure to Present Poverty and Neighborhood
Evidence
Brown contends that while counsel knew that Brown
grew up in poverty, counsel should have further investigated
and presented the testimony of a social historian to better
explain Brown’s childhood home on Piru Street. Because
the record does not contain information to support the
allegation that counsel did not investigate or obtain
information regarding Brown’s family history of poverty
and neglect, Brown fails to demonstrate that counsel
performed deficiently. See Titlow, 571 U.S. at 23.
Contrary to Brown’s allegations, counsel did introduce
evidence of Compton’s decline when Brown lived with Lula
and Laurence as well as specific evidence of conditions on
Piru Street. Dr. Johnson testified about the violence
common in Compton and how the lack of opportunities
affected black males like Brown. His testimony described a
mass exodus from the loss of jobs in the city between 1975
and 1988, mass unemployment, and a sharp increase in
violent crimes. Additionally, trial counsel marked three
photos of Lula’s house on Piru Street, Catherine identified
them in her testimony, and the court admitted them into
evidence.
Brown faults trial counsel for presenting only generic
evidence from Dr. Johnson, but counsel also presented
specific testimony from Brown’s uncle Wesley Armstrong
and Lula. Brown’s uncle grew up in Compton but left in
1979 when he was 20 years old because it had started to
change into a place with frequent shootings and robberies.
Wesley testified that he would return to Compton almost

34 BROWN V. BROOMFIELD
every weekend and wanted Lula and Laurence to move from
Piru Street because it was too rough and they could not
safely walk to their mailbox or be in their yard. Lula also
testified that when Brown was growing up on Piru Street,
fighting and shootings were prolific in the neighborhood and
violence occurred on the street.
Because Brown does not specify other relevant evidence
that counsel neglected to discover, we are not persuaded that
counsel rendered a deficient portrait of life on Piru Street and
the community violence and poverty that Brown
experienced. The decision to present Dr. Johnson’s
testimony in lieu of a social historian does not suggest
deficiencies “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687; see Sanchez v.
Davis, 994 F.3d 1129, 1148 (9th Cir. 2021) (“The choice of
what type of expert to use, however, is one of trial strategy
and deserves a heavy measure of deference.”) (internal
quotation marks omitted). Accordingly, the California
Supreme Court could have reasonably determined that these
conclusory assertions did not state a prima facie case of
ineffective assistance of counsel.
e. Failure to Present Evidence About Gang Non-
Affiliation
Brown’s next subclaim asserts that counsel was deficient
for not investigating and presenting evidence that Brown
was not a gang member and was in fact regularly victimized
by gangs. To support this claim, Brown points out that
counsel knew that Brown’s cousin had stated that Brown
was not affiliated with the “Bloods,” and that Lula permitted
Brown to switch schools often because he was unhappy with
the other children or felt threatened by the environment.

BROWN V. BROOMFIELD 35

However, the record supports a finding that counsel
conducted a reasonable investigation and decided not to
focus on gang affiliation.
Prior to trial, counsel had information that Brown
bragged about being a Fruit Town gang member and hung
out on the corner with gang members and dressed like them.
Before opening statements during the guilt phase, counsel
sought to exclude any mention of gangs as a strategic matter.
The prosecutor requested, however, that the trial court
permit limited gang testimony by allowing a witness to
testify in the guilt phase that when Brown bragged about
having “smoked the bitch,” Brown “was putting this on Fruit
Town,” his gang, which meant he was swearing an oath that
he was telling the truth. The trial court determined that those
limited statements were more probative than prejudicial and
permitted the prosecutor to introduce them. No other
evidence about gangs was presented during the guilt phase.
At the penalty phase, counsel did present evidence from
which it could be inferred that Brown was afraid of certain
gangs and changed schools because of his conflicts with
them.
Because introducing evidence about Brown’s
relationship with gangs would have opened the door for the
prosecution to introduce rebuttal evidence that Brown may
have been a gang member, counsel’s decision to not present
further evidence was a strategic choice that “falls within the
wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Based on the potential for
prejudice, this appears to be a situation where counsel
reasonably and strategically decided to minimize testimony
and evidence regarding Brown’s possible gang affiliation
rather than direct the jury to resolve the question of whether
Brown was a gang member. See Williams v. Woodford, 384

36 BROWN V. BROOMFIELD
F.3d 567, 618 (9th Cir. 2004) (determining that trial counsel
did not render ineffective assistance by failing to present
mitigation evidence that would have opened the door to
rebuttal evidence regarding gang membership).
f. Failure to Prepare and Examine Experts
Brown argues that counsel improperly selected experts
for the penalty phase and failed to adequately prepare and
examine them. He states that instead of calling Drs. Kaser-
Boyd, Choo, and Johnson, counsel should have hired a social
historian, and mental health and gang experts. Brown’s
argument hinges on the idea that if he had better experts, he
would have had a more favorable outcome.
However, the selection of the type of expert to use is
entitled to deference as a matter of trial strategy. See
Sanchez, 994 F.3d at 1148. Dr. Kaser-Boyd was a mental
health expert with expertise in forensic psychology, family
violence, and child abuse—areas central to Brown’s
mitigation theory. Dr. Choo testified because she was the
attending physician when Brown was hospitalized for a
psychotic episode. Dr. Johnson spoke to the socioeconomic,
educational, and professional hardships young black males
like Brown experienced growing up in Compton. And as
discussed, it was reasonable for counsel not to retain a gang
expert to avoid opening the door to prejudicial rebuttal
evidence concerning Brown’s possible gang affiliation.
Brown contends that trial counsel failed to prepare and
examine the experts, but he does not specify what counsel
should have done differently to prepare them. Moreover,
Brown’s argument that counsel’s investigation and
preparation caused his experts to undermine his defense
theory is belied by the record. Counsel’s mitigation strategy
was to show that Brown suffered a traumatic and abusive

BROWN V. BROOMFIELD 37

childhood and that despite recommendations for counseling
and signs that Brown struggled in school with a low IQ,
Brown never received the mental health treatment or
academic support that he needed. Instead, Brown grew up
in an area rife with violence and lack of opportunity, and as
a result of this chaotic environment, Brown self-medicated
with drugs and alcohol. Counsel argued that a combination
of these factors eventually caused Brown to have a psychotic
breakdown a year before the underlying offense. The three
experts at trial all supported this theory: Dr. Kaser-Boyd
spoke to Brown’s trauma and mental health issues resulting
from his childhood and why Brown resorted to drugs and
alcohol, Dr. Johnson spoke to the violence and economic
strife in Brown’s neighborhood in Compton, and Dr. Choo
described Brown’s psychiatric hospitalization.
***
In sum, the California Supreme Court could have
reasonably determined that Brown failed to make a prima
facie claim of ineffective assistance of counsel because there
was no evidence that trial counsel failed to investigate or
make reasonable strategic choices about Brown’s history of
drug and alcohol abuse; mental health conditions; family
history of abuse and neglect; gang ties; and poverty and
neighborhood history. As the State points out, much of the
new evidence presented by Brown in his postconviction
petitions was cumulative of the evidence trial counsel
already presented at the penalty phase. Where trial counsel
did not present or focus on certain evidence, such as Brown’s
chronic substance use, gang non-affiliation, or other
episodes of paranoid and erratic behavior, the record reflects
that these were strategic decisions by trial counsel.
Therefore, the California Supreme Court could have
reasonably concluded that trial counsel did not render

38 BROWN V. BROOMFIELD
deficient performance. See Strickland, 466 U.S. at 690. In
light of our “doubly deferential” standard of AEDPA review,
Knowles, 556 U.S. at 123, we cannot conclude that the
California Supreme Court’s rejection of Brown’s ineffective
assistance claim was objectively unreasonable.
2. Other Claims of Deficient Performance at the
Penalty Phase
Brown also contends that trial counsel was ineffective
for failing to: (a) rebut the uncharged acts introduced against
Brown during the penalty phase; and (b) failing to present
Brown’s positive qualities, failing to request an LWOP jury
instruction, and failing to object to closing arguments made
by the prosecution.
a. Failure to Rebut Evidence of Uncharged
Crimes
As evidence in aggravation, the State presented several
witnesses to testify about five uncharged violent offenses
allegedly committed by Brown in the year leading up to the
murder of Christina Ramirez.
On November 14, 1987, Brown was riding in a Chevy
Blazer with Willie Woods when they spotted a Suzuki
Samurai with deep-dish rims and followed the car to
Sunnymead Park (the “Sunnymead incident”). Danny Coria
drove the car with his friend Simon Mireles in the passenger
seat. Either Brown or Woods yelled at them to get out of the
car and fired a shot, striking Coria in the arm and breaking
it. Coria and Mireles fled on foot. Although Coria initially
identified Woods as the shooter at the preliminary hearing,
he was unsure by the time of trial who the shooter was.
Woods admitted at trial that he had pleaded guilty to
attempted murder and use of a gun and infliction of great

BROWN V. BROOMFIELD 39

bodily injury for the robbery, yet testified that Brown was
the shooter.
6

The next day, on November 15, 1987, Francisco Carillo
drove to Castle Park in Riverside with his brother and three
others. Carillo was driving a 1979 Grand Prix. At around
midnight, a Chevy Blazer driven by Woods and
accompanied by Brown and Kevin Davis pulled alongside
the Grand Prix. Brown jumped out of the car and shot
Carillo in the arm (“Castle Park incident”). The bullet
passed through his chest and heart, killing him. Davis
positively identified Brown as the shooter.
On January 12, 1988, Brown was living with his
girlfriend, Flecia Bennett, and their two children when an
argument ensued between the couple. Brown struck Bennett
in the mouth, drawing blood. Bennett responded by hitting
Brown in the head with a chair. Brown drew a .38-caliber
handgun, pointed it at Bennett’s face, and said, “Bitch, I’m
going to kill you.” Brown was not prosecuted because
Bennett dropped the charges. Bennett claimed that she did
not believe that Brown actually wanted to kill her.
On January 27, 1988, Brown brandished a large knife at
a hotel desk clerk, Sharon Lee Baker, demanding all her
money. After Baker convinced Brown to leave, he
threatened to come back with a gun and kill her. A few days
later, he came back with a woman and two children asking

6
The November 14 (Sunnymead incident) and November 15 (Castle
Park incident) crimes occurred in 1987, not 1988 as described in the
California Supreme Court’s opinion on direct appeal, Brown, 73 P.3d at
1150. Both parties describe these incidents as having occurred in
November 1987, and the district court’s order, Brown’s federal habeas
petition, the trial transcripts, and closing arguments confirm that both
incidents occurred in 1987.

40 BROWN V. BROOMFIELD
to rent a room. The police were called and arrested Brown.
Brown argues that he did not match the age or weight of the
attacker, and notes that Baker could not identify Brown in a
photographic lineup.
On November 5, 1988, six days before Christina
Ramirez was shot, Brown, Broderick Fields, Mark Bender,
and Percell McClendon were driving when they noticed an
Oldsmobile Cutlass Supreme with straight-lace rims at a gas
station. The car was occupied by two teenage girls, Gloria
Alonza
7
and Monica Rodriguez, while the driver Danny
Alcaraz was looking under the hood. Brown allegedly
pointed a .38-caliber handgun at the girls and ordered them
out of the car. After they fled, Brown and Fields got into the
car and drove away. McClendon testified against Brown and
identified him as the person who committed the carjacking.
The rims were recovered at Bender’s home and the
Oldsmobile was found in the hills with its tires and stereo
system missing.
Brown contends that trial counsel failed to investigate
and call Simon Mireles to impeach Wood’s testimony
concerning the Sunnymead robbery on November 14, 1987,
and to call Gloria Alonza to show that Brown did not commit
the robbery of the Oldsmobile on November 5, 1988.
8

Specifically, Brown argues that Mireles’s testimony would
have helped discredit Woods’s testimony that Brown shot

7
Some portions of the record refer to Gloria Alonza as Gloria Alonzo.
8
To the extent Brown argues that he was prejudiced because counsel
failed to impeach other witnesses to rebut the aggravators, he does not
provide specific details in support of these conclusory assertions. See
James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations
which are not supported by a statement of specific facts do not warrant
habeas relief.”).

BROWN V. BROOMFIELD 41

Coria, and that testimony by Alonza would have cast doubt
that Brown was involved because she excluded Brown from
a photo array presented by a defense investigator.
However, both of these potential witnesses would have
had minimal impact in rebutting the State’s evidence.
Mireles’s declaration stated that he could not identify either
perpetrator of the Sunnymead carjacking and did not know
who shot Coria. And while Alonza was able to provide a
description of the Black male holding the gun in the
November 5, 1988 robbery, the defense investigator reported
that Alonza “did not see the second male, whatsoever.” As
the district court noted, Alonza’s testimony would not have
excluded Brown from being the second male involved in the
robbery.
Trial counsel could have reasonably decided not to call
Mireles or Alonza to testify because their statements do not
foreclose the possibility that Brown was involved in either
robbery. Even if Alonza had testified that she did not believe
Brown was the man with the handgun, the impact of her
testimony would have been minimized by the contrary
testimony of McClendon, who testified that he was in the car
when Brown pointed a handgun at Alcarez, Rodriguez, and
Alonza and stole their vehicle.
In addition, trial counsel effectively cross-examined
several of the State’s witnesses and presented rebuttal
evidence that cast doubt on the State’s case. For example,
trial counsel painted Woods as a liar. Although Woods
testified that he did not have a gun or know of anyone with
a gun on the night of the Sunnymead incident, counsel
succeeded in getting the court to take judicial notice of
Woods’ plea colloquy in which he admitted that he
personally used a firearm against both Coria and Mireles in

42 BROWN V. BROOMFIELD
that robbery. Further, Woods admitted that he had lied to the
police about how the Suzuki was stolen, and lied to a
probation officer about his involvement in the crime.
Woods also testified about the Castle Park incident,
stating that the same gun was used by Brown in both crimes.
After Woods’s testimony, trial counsel called a ballistics
expert who testified that the bullets recovered from the
underlying murder, the Sunnymead incident, and the Castle
Park incident were all from different guns. Counsel also
elicited testimony from another witness to the Castle Park
incident, who testified that the gunman who shot Carillo was
right-handed. As the parties acknowledge, Brown is left-
handed.
As for the attempted robbery of hotel clerk Sharon Lee
Baker in January 1988, a police detective testified that Baker
gave police a description of the suspect that did not match
Brown at the time. The jury also heard that Baker was
unable to identify the robber in a photographic lineup. In
view of the trial record in which counsel presented several
witnesses to refute the State’s evidence that Brown
perpetrated the uncharged offenses, the California Supreme
Court reasonably rejected Brown’s claim that trial counsel
was ineffective for failing to call Mireles and Alonza as
rebuttal witnesses. Strickland, 466 U.S. at 699.
b. Failure to Present Brown’s Positive Qualities,
Request an LWOP instruction, or Object to
Closing Argument
Brown’s other allegations of ineffective assistance at the
penalty phase need only be addressed briefly. Brown argues
that counsel was ineffective for not presenting his positive
traits as a caring father and as someone with artistic talent.
We find little merit to this claim because prosecutors could

BROWN V. BROOMFIELD 43

have rebutted this evidence with harmful testimony that
Brown did not want to have anything to do with naming his
children, that Bennett gave up custody of one child because
Brown was using cocaine, and that Brown’s children did not
know him well. Evidence about Brown’s hobbies would
have had little persuasive weight to counteract the severity
of his crimes. As the district court correctly observed,
“[g]iven the heinous nature of the crime, and counsel’s
apparent strategy at the penalty phase, it cannot be said that
their failure to introduce this weak evidence of a redeeming
characteristic amounted to the kind of representational
failure that Strickland contemplates.” Thus, we cannot
conclude that counsel’s exclusion of these positive
characteristics amounted to any kind of “gross
incompetence” warranting habeas relief. Kimmelman v.
Morrison, 477 U.S. 365, 382 (1986).
Brown next argues that counsel should have requested a
jury instruction defining LWOP and clarifying that LWOP
meant that a defendant would never be released from prison.
Such an instruction would have been unnecessary. The jury
here was instructed that the only two available punishments
for Brown was a sentence of death or confinement in state
prison for life without the possibility of parole. It is unclear
what additional clarification was needed or what such
clarification would have accomplished. See also People v.
Ochoa, 966 P.2d 442, 506 (Cal. 1998) (explaining that the
California Supreme Court has recognized that “confinement
in the state prison for [LWOP]” is a commonly understood
phrase and therefore does not require further instruction as
to its meaning).
Finally, Brown asserts that counsel was ineffective for
failing to object to or rebut the prosecutor’s argument at
closing that Brown was a “sociopath” who lacked remorse

44 BROWN V. BROOMFIELD
and would kill again. Because no evidence supported that
he was a sociopath, Brown argues, counsel’s failure to object
was unreasonable.
A prosecutor commits misconduct during closing
argument when he manipulates or misstates the evidence
presented at trial. Darden v. Wainwright, 477 U.S. 168,
181–82 (1986). As California law recognizes, advocates
may employ commonly used terms like “sociopath” in
closing argument that are not based on a scientific definition.
See People v. Friend, 211 P.3d 520, 579 (Cal. 2009)
(rejecting claim that counsel should have objected when the
prosecutor called the defendant a “sociopath” during
argument because “the prosecutor was using language in
common currency to describe his interpretation of the
evidence”). Reviewing the trial record in this case, the
prosecutor permissibly used the term “sociopath” in
reference to its everyday meaning and did not refer to a
scientific opinion. Because Dr. Kaser-Boyd acknowledged
that Brown displayed several characteristics of antisocial
personality disorder and explained that some factors, like
hyperactivity disorder, “predispose[] children to a variety of
problems . . . certainly not just sociopathy,” it would have
been reasonable for the prosecutor to harken back to this
testimony.
9

9
It would have also been reasonable for Brown’s trial counsel to decide
not to object in the middle of the prosecution’s closing argument. See
United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)
(“Because many lawyers refrain from objecting during opening
statement and closing argument, absent egregious misstatements, the
failure to object during closing argument and opening statement is within
the ‘wide range’ of permissible professional legal conduct.” (citation
omitted)); see also Ceja v. Stewart, 97 F.3d 1246, 1253–54 (9th Cir.
1996) (“Counsel are given latitude in the presentation of their closing

BROWN V. BROOMFIELD 45

California law also allows a prosecutor to argue that a
lack of remorse implies that the defendant might kill again.
See People v. Boyette, 58 P.3d 391, 434 (Cal. 2002) (finding
permissible the argument “that the facts of the crime showed
an absence of remorse and, from that absence, the jury could
infer defendant was a threat to kill again”). Several
witnesses testified that Brown had bragged to others about
shooting Ramirez, and therefore a reasonable inference
could be drawn that Brown lacked remorse and was capable
of killing again. Because these arguments were permissible
under existing caselaw and were based on evidence in the
record, counsel was not deficient for failing to object to the
prosecutor’s closing remarks. See Juan H. v. Allen, 408 F.3d
1262, 1273 (9th Cir. 2005) (holding that counsel cannot have
been deficient for failing to make a meritless objection).
c. Prejudice
Because we conclude that counsel’s performance was
not deficient, we need not address whether Brown was
prejudiced by any such deficiency. Demetrulias v. Davis, 14
F.4th 898, 915 (9th Cir. 2021); see also Strickland, 466 U.S.
at 697 (“Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice
component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on
one.”). And while Brown asserts cumulative error, because
he has not demonstrated ineffective assistance of counsel at

arguments, and courts must allow the prosecution to strike hard blows
based on the evidence presented and all reasonable inferences
therefrom.” (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir.
1993))).

46 BROWN V. BROOMFIELD
the penalty phase, no prejudice can cumulate. See McGill v.
Shinn, 16 F.4th 666, 685 (9th Cir. 2021) (“If there are no
errors, there is no need to consider their cumulative effect.”).
B. Incompetent to Stand Trial
Brown’s second certified claim is that his mental
impairments rendered him incompetent to stand trial. The
California Supreme Court summarily denied his claim,
determining that Brown had not demonstrated a prima facie
basis for relief. The California Supreme Court’s denial of
Brown’s incompetence claim without an evidentiary hearing
was not based on an unreasonable determination of the facts.
Due process prohibits the criminal trial of “a person
whose mental condition is such that he lacks the capacity to
understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his
defense.” Drope v. Missouri, 420 U.S. 162, 171 (1975).
“[T]he standard for competence to stand trial is whether the
defendant has ‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’
and has ‘a rational as well as factual understanding of the
proceedings against him.’” Godinez v. Moran, 509 U.S. 389,
396 (1993) (quoting Dusky v. United States, 362 U.S. 402,
402 (1960) (per curiam)). In California, a criminal
defendant is presumed competent and bears the burden of
proving incompetency by a preponderance of the evidence.
See Cal. Pen. Code § 1369(c)(3); Medina v. California, 505
U.S. 437, 452–53 (1992). Factors relevant to a competency
determination include “evidence of a defendant’s irrational
behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial.” Drope, 420 U.S. at
180.

BROWN V. BROOMFIELD 47

Brown sought to establish his incompetence by
presenting evidence in state court of his “brain damage, low
intellectual functioning, mental disorders, and substance
abuse.” He pointed to Dr. Kaser-Boyd’s penalty-phase
testimony that, as a result of Brown’s severe childhood
trauma, he experienced “development arrest” in which “his
intellectual ability, his ability to think clearly and to learn
new things becomes limited.” Brown also relied on Dr.
Choo’s testimony about Brown’s involuntary hospitalization
in 1987. Brown was admitted to the emergency room after
attempting to steer a car off the freeway and appeared
disturbed, agitated, and disoriented. Dr. Choo observed that
Brown was “delusional” and “not in contact with reality,”
stating that “the Crips are after me.” Dr. Choo concluded
that Brown was psychotic and exhibited unpredictable
behaviors, and she prescribed Haldol and four-point
restraints for his protection.
Neither expert evaluated Brown for competence to stand
trial or connected their assessments to Brown’s ability to
consult with counsel or understand the nature of the
proceedings at the time of trial. Indeed, Dr. Choo noted that
just before Brown was released from the hospital, he was
mentally clear of the psychotic state and no longer exhibited
confusion. Dr. Choo further testified that his psychotic
behavior was consistent with his admitted PCP use. It was
not unreasonable for the California Supreme Court to
conclude that this evidence did not establish a prima facie
claim of incompetence. See Williams, 384 F.3d at 609
(giving little weight to mental health expert declarations in
part because they “do not describe how [defendant’s]
probable mental impairment interfered with his
understanding of the proceedings against him or with his
ability to assist counsel in presenting a defense”).

48 BROWN V. BROOMFIELD
Brown also relies upon post-conviction evidence of his
poor performance in school and Dr. Watson’s
neuropsychological testing showing brain damage and
intellectual deficits. Dr. Watson conducted further testing of
Brown in 2002 to assess his neurological functioning. Dr.
Watson concluded that Brown was “functioning within the
average range of intellectual ability overall,” and had a full
scale IQ of 90. His report noted, however, that Brown
showed “average to mildly impaired levels of functions” in
several neurocognitive domains, and showed “significant
signs of executive function impairment,” which meant he
had slow processing speed and difficulty with “higher-order
problem solving and abstract matters.” Even crediting these
conclusions as true, Brown’s weaknesses in processing
speed and abstract reasoning do not demonstrate that he was
incapable of assisting legal counsel or unable to comprehend
the proceedings against him. On the contrary, Dr. Watson
noted that during their three interviews in 2002, Brown was
friendly, cooperative, and fully oriented. Like the other
experts, Dr. Watson did not evaluate Brown for competence,
and the neurocognitive impairments he identified do not
establish his incompetence to stand trial. See, e.g., Atkins v.
Virginia, 536 U.S. 304, 318 (2002) (“Mentally retarded
persons frequently know the difference between right and
wrong and are competent to stand trial.”).
Brown also seeks to rely on Dr. Stewart’s post-
conviction psychiatric evaluation of Brown in 2007. Dr.
Stewart concluded that at the time of the offense, Brown’s
mental functioning had been substantially impaired by his
history of severe childhood trauma and chronic substance
abuse, a stimulant-induced psychotic disorder, and likely
mild organic brain dysfunction. Dr. Stewart concluded that
Brown “suffered striking and obvious signs of mental

BROWN V. BROOMFIELD 49

decompensation and psychiatric dysfunction” during this
time and that these psychiatric disturbances “may have
compromised his ability to appreciate the criminality of his
conduct and to conform his conduct to the requirements of
the law.” There is no indication from the report, however,
that these issues impacted Brown’s ability to assist in his
defense or understand the proceedings against him. See
United States v. Garza, 751 F.3d 1130, 1135 (9th Cir. 2014)
(emphasizing the need for a clear connection between mental
illness, even if severe, and “some failure by the defendant to
understand the proceedings or assist in his own defense”);
Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir. 2005)
(explaining that when paranoid delusions are not related to
counsel or any aspect of the trial, they do not indicate
incompetence).
10

On the contrary, the evidence in this case supports the
presumption that Brown was competent to stand trial. Under
the facts of this case, Brown approached Gardner about
buying deep-dish tire rims, then made a plan to steal them,
targeted Ramirez’s truck, shot her and stole her truck,
proceeded to sell the rims, and then bragged about the crime
on several different occasions. These circumstances suggest
that Brown was able to understand his situation and engage
in goal-oriented behavior. The police report from January
1989, which included quotes from Brown’s interview with
police, also showed that Brown was coherent, intelligible,
and rational. See Williams, 384 F.3d at 605–06 (finding
relevant that the transcripts of defendant’s police interview

10
For the same reasons, postconviction evidence that Brown’s family
and friends observed Brown’s increasing drug use and paranoid and self-
harming behavior in the two years leading up to the crime does not
support a finding that Brown was incompetent to stand trial.

50 BROWN V. BROOMFIELD
did not “evidence any bizarre or irrational behavior”). In
addition, Brown does not contest that neither his trial
attorney nor any co-counsel raised an issue about his
competence to stand trial. Although not dispositive, this
factor weighs against a finding of incompetence. See id. at
606 (“[D]efense counsel is in the best position to evaluate a
defendant’s competence and ability to render assistance.”
(quotation marks and brackets omitted)). Similarly, there is
no evidence that Brown behaved strangely in the courtroom
and the trial court did not raise any concerns about his
competence. We have “deem[ed] significant the fact that the
trial judge, government counsel, and [defendant’s] own
attorney did not perceive a reasonable cause to believe
[defendant] was incompetent.” Hernandez v. Ylst, 930 F.2d
714, 718 (9th Cir. 1991); see also Douglas v. Woodford, 316
F.3d 1079, 1094 (9th Cir. 2003) (noting that the defendant
“did not exhibit any strange behavior in the courtroom, nor
did the prosecutor or trial judge express any concerns about
his competence” and concluding that he was not entitled to
an evidentiary hearing on competence). Based on the totality
of the evidence, we conclude that the California Supreme
Court did not make an unreasonable factual determination
that Brown failed to rebut the presumption of competency.
C. Eighth Amendment Claim
Brown’s third certified claim is that he has an intellectual
disability that renders him ineligible for execution under the
Eighth Amendment. Brown points to (1) his pre-trial
neuropsychological testing with Dr. Nunno, which showed
“a general pattern of intellectual dysfunction and academic
skill deficiencies,” (2) Dr. Watson’s opinion that Brown had
“long-standing mild organic dysfunction, with significant
signs of executive function impairment,” and (3) his

BROWN V. BROOMFIELD 51

consistently low grades and recommendation for special
education services as indicators of adaptive deficits.
In Atkins v. Virginia, the Supreme Court held that it was
unconstitutional to execute an intellectually disabled person
and “le[ft] to the State[s] the task of developing appropriate
ways to enforce the constitutional restriction upon [their]
execution of sentences.” 536 U.S. 304, 317 (2002) (quoting
Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)).
Following Atkins’s instruction, the California legislature
adopted clinical definitions of intellectual disability, which
require (1) “significantly subaverage general intellectual
functioning,” and (2) “deficits in adaptive behavior” that
(3) “manifested before the end of the developmental period.”
Cal. Pen. Code § 1376(a)(1); accord Atkins, 536 U.S. at 318
(“[C]linical definitions of mental retardation require not only
subaverage intellectual functioning, but also significant
limitations in adaptive skills such as communication, self-
care, and self-direction that became manifest before age
18.”).
The California Supreme Court reasonably determined
that Brown failed to make a prima facie showing of
intellectual disability under California’s three-factor
statutory test. As an initial matter, Brown has adduced no
medical expert declaration concluding that Brown has an
intellectual disability, much less one that explains how any
organic brain damage or other deficit satisfies the statutory
standards. See Ochoa, 50 F.4th at 903 (rejecting the
“contention that Atkins bars the execution of individuals with
an impairment ‘equivalent’ to intellectual disability”).
Nor has Brown presented evidence that he has
“significantly subaverage general intellectual functioning”
under prong one of the Atkins test. Cal. Pen. Code

52 BROWN V. BROOMFIELD
§ 1376(a)(1); see Atkins, 536 U.S. at 318. Although there is
no fixed IQ cutoff to establish intellectual disability in
California, see In re Hawthorne, 105 P.3d 552, 557 (Cal.
2005), the range of IQ scores that “clinical sources consider
as satisfying Atkins prong one” is “approximately 65 to 75,”
Ochoa, 50 F.4th at 903; see also Atkins, 536 U.S. at 309 n.5
(“It is estimated that between 1 and 3 percent of the
population has an IQ between 70 and 75 or lower, which is
typically considered the cutoff IQ score for the intellectual
function prong of the mental retardation definition.”).
Brown obtained a full-scale IQ score of 77 from Dr.
Nunno’s testing in 1991, prior to trial. Reviewing those test
results, Dr. Kaser-Boyd testified that Brown’s overall
intellectual functioning was at the level of a twelve- or
thirteen-year-old, consistent with his school records. That
placed him in “borderline intelligence,” the area between
low average intelligence and intellectual disability. When
Brown was retested by Dr. Watson in 2002, he had a full-
scale IQ score of 90. Dr. Watson opined that “Brown is
functioning within the average range of intellectual ability.”
Specifically, Brown scored on the average or low average
range for Verbal IQ (37
th
percentile), Performance IQ (16
th

percentile), Verbal Comprehension Index (34
th
percentile),
Perceptual Organization Index (23
rd
percentile), and
Working Memory Index (37
th
percentile), with his lowest
score registering at 76 in Processing Speed Index (5
th

percentile). Brown’s two overall IQ scores, Dr. Watson’s
declaration, and Dr. Kaser-Boyd’s penalty-phase testimony
do not support a finding that Brown has significantly
subaverage intellectual functioning.
As for prong two of the Atkins test, the California
Supreme Court requires that a petitioner demonstrate
adaptive deficits consistent with the current clinical

BROWN V. BROOMFIELD 53

definition of intellectual disability, citing with approval
standards set by the American Psychiatric Association
(“APA”). Hawthorne, 105 P.3d at 556–57. These standards
require evidence of “significant limitations in adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.” Id. at
557. Such assessment is generally derived from
standardized measurements. See Diagnostic and Statistical
Manual of Mental Disorders (“APA DSM-IV”) 80 (4th ed.
2000) (recognizing that adaptive functioning scales
“generally provide a clinical cutoff score that is a composite
of performance in a number of adaptive skill domains”).
Brown contends that he has met the APA standards and
highlights Dr. Watson’s opinion that Brown appeared to
have “mild neurocognitive impairments” and “learning
disabilities with deficits in spelling, arithmetic and reading
speed,” as reflected in his low grades and recommendation
for special education services. However, Dr. Watson’s
report did not purport to evaluate Brown’s adaptive behavior
through standardized measures, nor did Dr. Watson
conclude that Brown had significant limitations in adaptive
functioning, explain what those deficits were, or discuss how
Brown’s sociocultural background would affect that
assessment. See In re Lewis, 417 P.3d 756, 767 n.15 (Cal.
2018) (observing that significant limitations on adaptive
behavior are found using standardized testing). Although
Brown struggled in school, his poor academic performance
could be the result of many other factors—including
childhood abuse, PTSD symptoms, family and
environmental turmoil, and early substance use—rather than
intellectual disability. See, e.g., Pizzuto v. Yordy, 947 F.3d

54 BROWN V. BROOMFIELD
510, 531 (9th Cir. 2019) (“Although some of these records
show that [defendant] received low grades and was held
back, there are many reasons [he] may have performed
poorly in school, and no expert opined that this poor
performance was evidence of [intellectual disability].”).
With scant evidence as to whether Brown demonstrated
significantly subaverage general intellectual functioning or
was deficient in adaptive skills, the California Supreme
Court reasonably determined that Brown did not state a
prima facie claim for relief under Atkins.
V. Uncertified Claims
Brown seeks to expand the COA to include three
uncertified claims, alleging (1) counsel’s ineffective
assistance at the guilt phase, (2) the discriminatory exclusion
of a prospective black juror, and (3) the denial of a jury
drawn from a fair cross-section of the community. We may
not review Brown’s uncertified claims unless a COA is
granted. See 28 U.S.C. § 2253(c)(1)(A). A COA may issue
“only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). To obtain
a COA, Brown must show that “jurists of reason could
disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Buck v. Davis, 580 U.S. 100, 115 (2017) (citation
omitted). “This threshold question should be decided
without ‘full consideration of the factual or legal bases
adduced in support of the claims.’” Id. (citation omitted).
For the reasons that follow, we decline to grant COAs as to
Brown’s uncertified claims.

BROWN V. BROOMFIELD 55

A. Ineffective Assistance of Counsel at the Guilt Phase—
Claims 7 & 11
Brown first argues that counsel was ineffective at the
guilt phase for failing to investigate his competency and
failing to present alternative mental state defenses. As
discussed, trial counsel did investigate Brown’s mental state
and did not ignore any indicia of his mental limitations. See
supra, pp. 29–31. In light of our evaluation of Brown’s
substantive incompetence claim, see supra Section IV.B, the
California Supreme Court’s denial of his ineffective
assistance of counsel claim based on counsel’s failure to
investigate his competency was not unreasonable. See Davis
v. Woodford, 384 F.3d 628, 647 (9th Cir. 2004) (holding that
because petitioner failed to establish incompetence, his
corresponding ineffective assistance of counsel claim also
fails).
Evidence in the record also supports the presumption that
counsel reasonably declined to pursue a Not Guilty by
Reason of Insanity plea or present a defense that Brown
could not form the specific intent to commit murder. The
facts of the crime suggested that Brown understood the
nature of his acts and was capable of planning and executing
goal-oriented behavior. Further, a mental state defense
would have contradicted the defense theory presented at trial
that Brown was not the shooter—a defense supported by
some inconsistency in witness statements. See Turk v.
White, 116 F.3d 1264, 1267 (9th Cir. 1997) (“[O]nce
[counsel] reasonably selected the self-defense theory, his
duty to investigate the competency defense, which directly
conflicted with the self-defense theory, ended.”). Because
reasonable jurists could not disagree with the district court’s
decision to deny these claims, we decline to expand the COA

56 BROWN V. BROOMFIELD
to include these uncertified issues. See Buck, 580 U.S. at
115.
B. Batson Claim—Uncertified Claim 2
Brown also seeks to expand the COA to challenge the
prosecutor’s use of a peremptory strike against a prospective
Black juror under Batson v. Kentucky, 476 U.S. 79 (1986).
We follow a three-part burden-shifting test for assessing a
Batson claim of racial discrimination in jury selection:
First, the defendant must make out a prima
facie case by showing that the totality of the
relevant facts gives rise to an inference of
discriminatory purpose. Second, once the
defendant has made out a prima facie case,
the burden shifts to the State to explain
adequately the racial exclusion by offering
permissible race-neutral justifications for the
strikes. Third, if a race-neutral explanation is
tendered, the trial court must then decide
whether the opponent of the strike has proved
purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168 (2005) (cleaned
up).
The juror stated during voir dire that “a cold blooded
murder of someone is the only reason I’d vote for the death
penalty.” After the prosecutor explained the felony murder
rule, the juror maintained his reluctance to impose the death
penalty for an accidental shooting. He also showed
confusion about the death penalty standard, repeating his
belief that the prosecutor must prove the propriety of a death
sentence beyond a reasonable doubt and requiring multiple

BROWN V. BROOMFIELD 57

explanations by the trial judge before accepting the correct
standard. The prosecutor exercised a peremptory strike
against the juror and defense counsel raised a Batson
objection. On two different occasions, the trial court found
no prima facie showing of racial discrimination and noted
that the prosecutor had concerns with the juror during voir
dire and had unsuccessfully challenged him for cause. On
this record, Brown has not established that the California
Supreme Court’s denial of his Batson claim “was contrary
to[] or involved an unreasonable application of” Batson. 28
U.S.C. § 2254(d)(1).
As a final matter, Brown argues that we must look
through the California Supreme Court’s summary denial in
2008 to the last-reasoned trial court decision in 1991, during
which time California required a prima facie showing of “a
strong likelihood that such persons are being challenged
because of their group association rather than because of any
specific bias.” People v. Wheeler, 583 P.2d 748, 764 (Cal.
1978). In 2005, the Supreme Court rejected Wheeler’s
“strong likelihood” standard as inconsistent with Batson’s
“inference” requirement. Johnson, 545 U.S. at 173.
Although the trial court rendered its decision in 1991 when
Wheeler governed, the California Supreme Court summarily
denied Brown’s petition in 2008, after Johnson had clarified
the governing Batson prima facie standard. Where, as here,
there was an intervening change in law between the time of
the lower state court ruling and the California Supreme
Court decision, we presume that the California Supreme
Court followed the correct standard under Johnson and
Batson. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
Under these facts, the district court’s decision to deny
Brown’s Batson claim is not “debatable.” Buck, 580 U.S. at
116 (citation omitted).

58 BROWN V. BROOMFIELD
C. Sixth Amendment Fair-Cross-Section Claim—
Uncertified Claim 1
Finally, Brown seeks expansion of the COA to raise a
Sixth Amendment claim on his “right to be tried by an
impartial jury drawn from sources reflecting a fair cross
section of the community.” Berghuis v. Smith, 559 U.S. 314,
319 (2010). Brown argues that there was a systemic
underrepresentation of Black and Hispanic populations in
the Riverside County jury pool at the time of his trial.
To establish a prima facie violation of the fair cross-
section requirement, a defendant must show “(1) that the
group alleged to be excluded is a ‘distinctive’ group in the
community; (2) that the representation of this group in
venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). To
make a prong two showing, Brown provided a declaration
by sociologist Dr. Edgar Butler, who compared the jury
venires in three unrelated trials in Riverside County in 1987
and 1988 with the underlying population in Riverside
County. However, Brown presented no statistics on the
racial composition of the venire from which his jury was
drawn in November 1991. Dr. Butler’s examination of three
prior trials cannot substitute for jury selection data at
Brown’s trial. Accordingly, reasonable jurists could not
disagree with the district court’s resolution of Brown’s Sixth
Amendment fair-cross-section claim. See Buck, 580 U.S. at
115.

BROWN V. BROOMFIELD 59

***
Because Brown failed to demonstrate that “jurists of
reason could disagree with the district court’s resolution of
his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further,” id. (citation omitted), we decline to grant
COAs for Brown’s three uncertified claims.
VI. CONCLUSION
Under AEDPA’s deferential standard of review, Brown
has not demonstrated that the California Supreme Court’s
summary denial of his claims “was contrary to, or involved
an unreasonable application of, clearly established Federal
law” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Therefore, we must
affirm the district court’s judgment denying Brown federal
habeas relief.
AFFIRMED.