UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAYMOND ANTHONY LEWIS, No. 19-99001

Petitioner-Appellant, D.C. No. 1:03-cv-06775- v. LJO-SAB CHANCE ANDES, Acting Warden, San Quentin State Prison, OPINION

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted April 20, 2023 San Francisco, California

Filed March 12, 2024

Before: Mary H. Murguia, Chief Judge, and Morgan Christen and Daniel P. Collins, Circuit Judges.

Opinion by Judge Christen 2 LEWIS V. ANDES

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of a federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254 by Raymond Anthony Lewis, who was sentenced to death in 1991 after a California jury convicted him of the first-degree murder of Sandra Simms. Lewis’s certified claims involved only the penalty phase of his trial, where the State introduced evidence of Lewis’s aggravating prior criminal acts, including a confession he made as a juvenile to involvement in a prior murder. Lewis argued that the state trial court’s admission of his juvenile confession was unconstitutional, and that his trial counsel was ineffective in failing to present evidence of his innocence of the prior murder. Applying the deferential standard required by the Antiterrorism and Effective Death Penalty Act of 1996, the panel concluded that the California Supreme Court’s affirmance of the trial court’s admission of Lewis’s juvenile confession was not contrary to or an unreasonable application of federal law, that it was not based on unreasonable factual determinations, and that Lewis’s trial counsel’s litigation of the evidence of the prior murder did not fall below an objective standard of reasonableness. Lewis also contended that his trial counsel was constitutionally ineffective by failing to investigate, develop, and present certain mitigating evidence at the penalty phase of the Simms trial. Lewis argued that his trial * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LEWIS V. ANDES 3

counsel should have presented additional evidence of his family’s history, his rough upbringing, and his mental health issues. The panel concluded that Lewis failed to show that his trial counsel’s performance fell below an objectively reasonable standard. Rather, counsel made reasonable strategic decisions at the penalty phase to ask for the jury’s mercy and to appeal to any lingering doubt the jurors may have had about Lewis’s guilt. The panel also concluded that much of the evidence Lewis said his trial counsel was ineffective in not introducing would have been cumulative of evidence that his counsel did introduce. Lewis was eligible for the death penalty because the jury found that he had committed robbery in the course of the Simms murder. His uncertified claims attacked the sufficiency of the evidence of robbery based on the diminished mental capacity and inconsistent testimony of the State’s eyewitness to the Simms murder. The panel declined to grant a certificate of appealability on these claims because the eyewitness’s credibility was a question for the jury and his testimony was corroborated by several pieces of physical evidence.

COUNSEL Brian Abbington (argued) and Joan M. Fisher, and Brian Abbington, Assistant Federal Public Defenders; Heather E. William, Federal Defender; Federal Public Defender’s Office, Sacramento, California; Joseph Schlesinger, Assi