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Browning v. Baker et al., 9th Circuit, filed 9/20/17: HABEAS WIN on Brady claim, and Trial Counsel Ineffectiveness re: Investigation.

September 22nd, 2017
Elizabeth Franklin-Best

It’s always stunning to see a win on habeas, so they’re important to analyze.  This opinion has a very strong dissent by Judge Callahan so there’s probably a good chance SCOTUS will look at this one carefully.  Frankly, they would even without a dissent. So, just know that there’s a dissent if you’re interested in using this case.

The victim was a jewelry store owner who was stabbed during daylight, and his wares were stolen by his killer.  At trial he was appointed a former prosecutor named Pike.  This was a capital case.  Pike had prosecuted four death penalty cases, but this was his first as a defense attorney.  He did not do a good job. In fact, during the state habeas proceeding, his investigator testified that Pike didn’t really let him do anything. He didn’t allow him to investigate the Wolfe’s, for example, who were key State witnesses with much reason to lie and pin this murder on their fellow drug-addicted buddy, Browning. And here’s a paragraph that just about sums up the quality of lawyer Pike was:

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

Man.  That paragraph tells me everything I need to know.

So, in addition to having a terrible lawyer, the State prosecutor failed to disclose a number of troubling facts. For example, he failed to disclose that he helped Wolfe get a job.  He also spoke on Wolfe’s behalf as Wolfe pleaded guilty to attempted possession of stolen property in an unrelated case.  He also admitted that he did not prosecute the Wolfe’s for having the jewelry that was clearly stolen from the victim’s store.  Nor did he impound that jewelry. The State also failed to disclose that the victim identified his assailant, shortly before he died, as having shoulder length, loosely curled, and wet hair.  Browning had an Afro.  The State also failed to produce evidence that a bloody footprint found near the victim was not consistent with Browning’s footwear.

The district court granted certificates of appealability (COA’s) on the following issues:  1) whether the prosecution’s failure to produce evidence relating to the blood shoeprints constituted a violation of Browning’s rights as described in Brady v. Maryland, 373 U.S. 264 (1973) and/ or Napue v. Illinois, 360 U.S. 264 (1959); 2) whether evidence impeaching Randy Wolfe’s credibility was withheld in violation of Browning’s rights under Brady; and 3) whether Pike was ineffective in light of his failure to investigate the source of the bloody shoeprints, the victim’s description of the assailant, and the credibility of Brown’s accusers.

Because this is a Friday afternoon, and this will be a short blog post, the long and short of it all is that the Court found the State did improperly suppress evidence that  was favorable to Browning, and that Pike was a terrible lawyer.  Also, the Court notes that the State’s case against Browning was really very weak which is why Browning was prejudiced by the government’s actions and his lawyer’s inactions.

Judge Callahan, who may just wear the most awesome shoes of any jurist on any bench, dissented, and in great detail.  In her opinion, the Court did not afford the proper amount of deference to the state court fact-finding and thus has run afoul of AEDPA.

I’m doubt this will be the last we hear of Browning’s case.

CONSULTATION FORM





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