9th Cir.;

The court of appeals granted in part a petition for writ of habeas corpus. The court held that the prosecutor’s withholding of material evidence and defense counsel’s constitutionally deficient pretrial investigation warranted granting habeas relief to a death row inmate.

A man robbed a jewelry store, fatally shooting the owner. The first officer on the scene, Gregory Branon, observed bloody shoeprints on the floor. He also spoke with the store owner, who was still alive. The owner described his assailant as a black adult male whose hair was “shoulder length,” “loosely curled,” and “wet.” Branon, who was African American, interpreted those words to mean a Jheri Curl, and used that term in his report. Based on a tip from Randy and Vanessa Wolfe, Paul Browning was arrested within hours. His clothing did not match the description provided by the decedent, his shoes did not match the bloody footprints, and his hair was in an Afro, and not a Jheri Curl. At trial, the prosecutor offered testimony that the bloody footprints could have been left by the technicians called to the scene, and that the decedent, who was Caucasian, might have misunderstood the meaning of the term Jheri Curl, and actually meant to say “Afro.” The prosecutor did not introduce, or disclose to the prosecution, Branon’s report, which included both his discovery of the footprints upon arriving at the crime scene and the actual words used by the decedent in describing his assailant’s hairstyle. The Wolfes testified at trial that Browning told them he had robbed the store. Browning was convicted of murder, robbery, burglary, and escape. He was sentenced to death. The judgment was upheld on appeal.

Browning sought state habeas relied, challenging the prosecutor’s multiple nondisclosures, including the benefits provided for the testimony of Randy Wolfe, who had a lengthy criminal history and who was himself facing criminal charges. Browning also challenged appointed counsel’s failure to investigate, including not interviewing the Wolfes. Browning thereafter petitioned the district court, which also denied relief.

The court of appeals reversed in part, holding that the Nevada Supreme Court’s unreasonably applied established Supreme Court precedent in rejecting Browning’s Brady and Strickland claims arising from (1) the prosecutor’s withholding of material evidence and (2) counsel’s constitutionally inadequate pretrial investigation and preparation. The prosecution evidence was far from overwhelming. There was a strong possibility that had the prosecution disclosed Branon’s report or the deal with Wolfe, or had defense counsel discovered any of the evidence through reasonable investigation, at least one juror would have harbored reasonable doubt. Browning would have so substantially benefited from that evidence that it was objectively unreasonable for the Nevada Supreme Court to conclude to the contrary. Because Browning offered no reason to call the validity of his escape conviction into question, he was not entitled to habeas relief as to that conviction. Judge Callahan dissented, finding the district court properly denied habeas relief.