FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MARC LEEDS, 

Petitioner-Appellee,

 v. 

PERRY RUSSELL; ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA, 

Respondents-Appellants.

No.21-16813 

D.C. No. 

3:15-cv-00261-

LRH-CLB 

OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted April 10, 2023

San Francisco, California

Filed July 26, 2023

Before: Richard A. Paez, Richard R. Clifton, and Holly A. 

Thomas, Circuit Judges.

Opinion by Judge Paez
2 LEEDS V. RUSSELL

SUMMARY*

Habeas Corpus 

The panel affirmed the district court’s judgment granting 

Robert Leeds’s 28 U.S.C. § 2254 habeas corpus petition 

challenging his Nevada first-degree murder conviction for 

killing William Scarborough. 

Although Leeds resided at the house where the murder 

occurred, the prosecution presented a felony-murder theory 

at trial, alleging that Leeds committed the murder during the 

course of a burglary because he entered the home’s garage 

as he struggled with Scarborough. Leeds’s trial counsel 

failed to argue that a person cannot burglarize his own home. 

The jury’s general verdict form did not specify whether the 

jury relied on the felony-murder theory or the State’s 

alternative theory of willful, deliberate, and premeditated 

murder to convict Leeds of first-degree murder. 

Leeds sought state habeas relief, but his post-conviction 

counsel failed to allege in the petition that trial counsel was 

ineffective for failing to argue that Leeds could not 

burglarize his own home. The claim was therefore 

procedurally defaulted under Nevada law.

Applying Martinez v. Ryan, 566 U.S. 1 (2012), the 

district court excused Leeds’s procedural default on the basis 

of post-conviction counsel’s ineffective assistance and the 

resulting prejudice to Leeds. The district court then granted 

relief on the merits of the underlying trial-level ineffective 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
LEEDS V. RUSSELL 3

assistance of counsel (IAC) claim, finding that Leeds’s trial 

counsel performed ineffectively under Strickland v. 

Washington, 466 U.S. 668 (1984), by failing to raise the 

burglary argument and prevent the use of the felony-murder 

theory.

The panel agreed with the district court.

The panel held that Leeds established a basis to excuse 

the procedural default of his claim because (1) Leeds’s trialcounsel IAC claim is substantial and therefore satisfies 

Martinez’s prejudice requirement; and (2) Leeds’s postconviction counsel provided ineffective assistance under 

Strickland, meeting the Martinez cause requirement.

The panel held that Leeds is entitled to relief on the 

merits because (1) trial counsel’s failure to raise the 

objectively important burglary argument constituted 

deficient performance; and (2) there is a reasonable 

probability that the result of the proceeding would have been 

different without the use of the felony-murder rule, such that 

the deficient performance prejudiced Leeds.
4 LEEDS V. RUSSELL

COUNSEL

Michael J. Bongard (argued), Deputy Attorney General, 

Office of the Nevada Attorney General; Ely, Nevada; Sheryl 

Serreze, Deputy Attorney General; Aaron D. Ford, Attorney 

General of Nevada; Office of the Nevada Attorney General; 

Carson City, Nevada; for Respondents-Appellants.

Alicia R. Intriago (argued), Assistant Federal Public 

Defender; Rene L. Valladares, Federal Public Defender, 

District of Nevada; Federal Public Defender’s Office of Las 

Vegas; Las Vegas, Nevada; for Petitioner-Appellee.

OPINION

PAEZ, Circuit Judge: 

The State of Nevada appeals the grant of Petitioner 

Robert Leeds’s 28 U.S.C. § 2254 petition for a writ of habeas 

corpus. In 2006, a Nevada jury convicted Leeds of firstdegree murder for killing William Scarborough. Although 

Leeds resided at the house where the murder occurred, the 

prosecution presented a felony-murder theory at trial, 

alleging that Leeds committed the murder during the course 

of a burglary because he entered the home’s garage as he 

struggled with Scarborough. Leeds’s trial counsel failed to 

argue that a person cannot burglarize his own home. The 

jury’s general verdict form did not specify whether the jury 

relied on the felony-murder theory or the State’s alternative 

theory of willful, deliberate, and premeditated murder to 

convict Leeds of first-degree murder. 

Leeds later sought state habeas relief, but his postconviction counsel failed to allege in the petition that trial 
LEEDS V. RUSSELL 5

counsel was ineffective for failing to argue that Leeds could 

not burglarize his own home. The claim was therefore 

procedurally defaulted under Nevada law. Leeds then filed 

a habeas petition in federal district court, which the court 

ultimately granted. The court, applying Martinez v. Ryan, 

566 U.S. 1 (2012), first excused Leeds’s procedural default 

on the basis of post-conviction counsel’s ineffective 

assistance and the resulting prejudice to Leeds. The court 

then granted relief on the merits of the underlying trial-level 

ineffective assistance of counsel claim, finding that Leeds’s 

trial counsel performed ineffectively under Strickland v. 

Washington, 466 U.S. 668 (1984), by failing to raise the 

burglary argument and prevent the use of the felony-murder

theory.

We agree with the district court and affirm. Leeds has 

established a basis to excuse the procedural default of his 

claim, and he is further entitled to relief because his trial 

counsel provided constitutionally ineffective assistance.

I.

1.

Petitioner Robert Leeds and Sally Lane married in 1985. 

Throughout their marriage, Leeds experienced mental 

illness, including severe depression and bipolar disorder. In 

2000, Lane moved to Canada to attend veterinary school. 

Leeds moved in with Lane’s mother, but he became deeply 

depressed and fell into a “comatose” state. After he had a 

falling out with his mother-in-law, he joined his wife in 

Canada. Four years later, Lane needed money for veterinary 

school, but her family no longer approved of Leeds. Her 

brother conditioned his financial assistance on her agreeing 

to divorce Leeds. Lane filed for divorce in 2004. The 

divorce became final in April 2005. Leeds and Lane, 
6 LEEDS V. RUSSELL

however, continued to live together, share a dog and a car, 

and have a “cooperative” relationship.

Lane graduated from veterinary school in June 2005. At 

that time, Lane had some concerns about her and Leeds’s 

relationship, but she continued to feel connected to Leeds. 

The pair decided to move to Las Vegas together, where they 

leased a home on Evening Song Avenue (“Evening Song 

house”). Although only Lane’s name was on the lease, there 

was “no doubt” that Leeds would be living there too. Leeds 

never had a key to the house, but he did not need one because 

they always left the back door open.

In September 2005, Lane started working at an animal 

shelter and met William Scarborough, who euthanized

animals that had to be put down. Scarborough had been in 

prison and had recovered from an alcohol and drug 

addiction. Lane told Leeds about Scarborough, and Leeds 

cautioned her to keep her distance given Scarborough’s job 

and background. Leeds also worried Lane would begin an 

emotional affair with Scarborough, as she was “vulnerable” 

at work because she loved animals and did not like seeing 

them euthanized. In mid-October, Scarborough and Lane 

started rescuing some of the animals that were to be 

euthanized. They became close and started a romantic 

relationship towards the end of October. Also in October, 

Lane told Leeds “a couple times” that “it would be better if 

[they] were separated for a while,” but she did not leave him,

and he did not move out.

In November, Lane’s family planned to visit for 

Thanksgiving. Because her family was unaware that Leeds 

was still in her life, Lane told Leeds that they needed to move 

his belongings out of the Evening Song house and that he 

could not stay there while her family visited. The “only 
LEEDS V. RUSSELL 7

purpose” Lane had in asking Leeds to leave for the holiday 

was that her family not find out she still lived with him. 

Leeds had started working as an English teacher, so Lane

took him to his office “to stay there temporarily,” beginning 

on Wednesday of Thanksgiving week. Shortly before the 

holiday, Leeds ran out of his psychiatric medications.

Lane spent Thanksgiving with her brother and 

Scarborough, though her mother ultimately did not visit. 

The day after Thanksgiving, Scarborough helped Lane buy 

furniture and move it into the Evening Song house. While 

they were out to dinner that night, Leeds called Lane’s 

mother and learned that she was not visiting Lane. Leeds 

went to the Evening Song house around 11 p.m. and let 

himself in through the back door as usual. Leeds went 

upstairs, saw the new futon bed, and “lost it” because he “felt 

[like he] was walking in on a love nest in [his] own house.” 

Around 2 a.m., Lane and Scarborough returned to the house. 

Lane described Leeds as “devastated” and “hysterical.” 

Leeds also said he was sobbing and felt like he was in a 

nightmare. Leeds called 911, saying “something to the 

effect that there is a convicted felon . . . [who] works at my 

wife’s office[] and he has been . . . conning her all along.” 

Lane also called 911 at Scarborough’s direction, saying that 

her ex-husband was in the house.

The police arrived and separated Lane, Scarborough, and 

Leeds. Lane told police that Leeds was “no longer staying 

there,” “was physically out of the house, but he was . . . not 

told he couldn’t come back,” and that Lane was hoping 

Leeds would find his own place. The police explained that 

Leeds “had the right to stay because he’d been living there” 

and that Lane would need to get an eviction notice. Leeds 

told the police he felt like dying because he was losing his 

wife, and the police offered to take him back to his office to 
8 LEEDS V. RUSSELL

“sleep this off.” Leeds went to his office, and Scarborough 

stayed at the Evening Song house with Lane. Leeds called 

the house twice, but Scarborough answered and said Lane

did not want to talk to him.

The next morning, Leeds came to the house and spoke to 

Lane from the front porch. Leeds told Lane he was sorry for 

his behavior the night before. He was apologetic. He was 

holding cash, saying it was for rent. Leeds said he was going 

to Florida to be with his family and that they could reconcile. 

Lane was crying and “weakening,” and Scarborough told her 

to “stay strong” in her decision to separate.

Ultimately, Scarborough offered Leeds a ride to the 

airport, which he accepted. The men got in Scarborough’s 

truck, which was in the driveway. Leeds then asked to hug 

his dog, to hug Lane, to give Lane the money, to use a cell 

phone, and to have a drink of water. At some point, 

Scarborough became frustrated and got out of the truck. 

Scarborough and Lane went up toward the garage to talk, 

and Leeds remained near the truck on the phone with his 

family.

Suddenly, Lane saw Leeds drop the phone and rush 

toward Scarborough. The two men fell to the ground, 

struggling, and rolled into the garage. Lane thought Leeds 

was punching Scarborough, and she started hitting Leeds in 

the back, trying to make him stop. Lane’s hand was injured. 

She then saw blood on Scarborough’s face and saw Leeds 

holding a knife, which Leeds testified he grabbed from 

Scarborough. Leeds stabbed Scarborough in the chest and 

said something to the effect of: “Die like the animals you 

kill.” Scarborough fell to the ground. Leeds then went to 

the truck, picked up a tire iron, came back, and hit 
LEEDS V. RUSSELL 9

Scarborough in the head around eight times.1 Leeds then left 

through the gate of the housing community and attempted 

suicide by cutting his wrists.

2.

The State of Nevada charged Leeds with murder with use 

of a deadly weapon; attempted murder with use of a deadly 

weapon; battery with use of a deadly weapon resulting in 

substantial bodily harm; and burglary while in possession of 

a deadly weapon. The burglary charge was included because 

the prosecutor argued that Leeds intended “to assault, batter, 

or murder” Scarborough when the two men entered the 

garage during their struggle. At trial, the jury was instructed 

that they could convict Leeds of first-degree murder based 

on either a felony-murder theory (because of the burglary) 

or a willful, deliberate, and premeditated theory. In closing 

argument, the prosecutor explained that it did not matter if 

the jurors agreed on one theory: they could convict Leeds of 

first-degree murder as long as they all thought one of the two

theories applied.

The jury convicted Leeds on all four counts, although the 

court later dismissed the battery count. The verdict form 

does not specify which theory of murder the jury relied upon 

to convict Leeds of first-degree murder. For the first-degree 

murder count, Leeds was sentenced to twenty years to life, 

with a consecutive twenty years to life for the use of a deadly 

weapon. For the attempted murder count, he was sentenced 

to six to twenty years, with a consecutive term of six to 

twenty years for the use of a deadly weapon. Finally, for the 

burglary count, Leeds was sentenced to a concurrent term of 

1 At trial, a medical examiner testified that the cause of death was the 

stab wounds to the chest, not the impact of the tire iron.
10 LEEDS V. RUSSELL

four to thirteen years. Leeds appealed his convictions, but 

the Nevada Supreme Court ultimately affirmed. See Leeds 

v. State, 281 P.3d 1194 (Nev. 2009) (unpublished table 

opinion).

3.

Leeds then initiated state habeas proceedings. In 

Nevada, a post-conviction collateral proceeding is the first 

opportunity to raise ineffective assistance of counsel claims. 

See Gibbons v. State, 634 P.2d 1214, 1216 (Nev. 1981) 

(concluding that the “appropriate vehicle for presenting a 

claim of ineffective assistance of counsel is through postconviction relief”). Leeds first filed a pro se habeas petition, 

which was denied. The Nevada Supreme Court reversed and 

remanded with instructions to appoint counsel. In July 2013, 

Leeds’s state-appointed post-conviction counsel (“PCC”) 

filed a supplemental petition alleging multiple errors by trial 

counsel, but the petition did not include a claim that trial 

counsel was ineffective for failing to challenge the felonymurder theory on the ground that Leeds could not burglarize 

his own home (the “burglary theory”). The state district 

court denied his petition.

Leeds filed a timely appeal to the Nevada Supreme Court 

in September 2014. For the first time, PCC asserted the 

burglary theory, arguing that the felony-murder rule was 

improperly applied, and citing United States Supreme Court 

precedent mandating reversal in such situations. See Yates 

v. United States, 354 U.S. 298, 312 (1957) (a verdict should 

be set aside “in cases where the verdict is supportable on one 

ground, but not on another, and it is impossible to tell which 

ground the jury selected”), overruled on other grounds by 

Burks v. United States, 437 U.S. 1 (1978). For support, PCC

cited the then-recently decided Nevada Supreme Court case 
LEEDS V. RUSSELL 11

State v. White, 330 P.3d 482 (Nev. July 10, 2014), which 

made clear that a person cannot burglarize his own home, id. 

at 483. The Nevada Supreme Court, however, affirmed the 

denial of the habeas petition and explicitly declined to 

consider the burglary theory because this “ground for relief 

was not raised in Leeds’ post-conviction petition for a writ 

of habeas corpus or argued in the district court below.” 

Because Leeds failed to raise the burglary theory before the 

state district court, the claim was procedurally defaulted and

was never reviewed by a state court. See Nev. Rev. Stat. 

§ 34.810(1)(b).

4.

Leeds next filed a petition for habeas relief in federal 

district court under 28 U.S.C. § 2254. The State filed a 

motion to dismiss, which was granted in part and denied in 

part. The parties then briefed the remaining claims. 

Relevant here is Ground Two, which alleged that “[t]rial 

counsel was ineffective for failing to challenge the burglary 

charge and felony murder theory on the ground that Mr. 

Leeds could not burglarize his own home.”

The district court granted habeas relief as to Ground Two 

in September 2021. It did not address the remaining 

grounds. The court found that Leeds’s procedural default of 

Ground Two was excused under Martinez. The court then 

addressed the merits of the claim, finding that trial counsel 

had performed ineffectively under Strickland. The State 

timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 2253. Leeds’s 

habeas petition is governed by the Anti-Terrorism and 

Effective Death Penalty Act, 28 U.S.C. § 2254 (“AEDPA”). 
12 LEEDS V. RUSSELL

We review de novo the district court’s decision on the habeas 

petition, including questions of procedural default. Sexton 

v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012). We also 

review de novo claims of ineffective assistance of counsel 

(“IAC”), which present mixed questions of law and fact. 

Rogers v. Dzurenda, 25 F.4th 1171, 1180 (9th Cir. 2022). 

Any factual findings made by the district court in evaluating 

IAC claims are reviewed for clear error. See id. Because no 

state court reviewed Leeds’s IAC claim, there is no special 

deference under AEDPA. See id. at 1181.

Where, as here, a petitioner’s claim was procedurally 

defaulted in a state habeas proceeding, he must show that the 

default was excused in order for federal habeas review to 

occur. See Martinez, 566 U.S. at 9–10 (explaining that 

federal courts will not review the merits of a claim “that a 

state court declined to hear because the prisoner failed to 

abide by a state procedural rule” unless an exception 

applies). In short, a petitioner can only “obtain federal

review of a defaulted claim by showing cause for the default 

and prejudice from a violation of federal law.” Id. at 10 

(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)) 

(emphasis added).

III.

In Martinez, the Supreme Court recognized that attorney 

error can establish cause to excuse procedural default of a 

trial counsel IAC claim when the state requires a prisoner to 

raise that claim for the first time in post-conviction 

proceedings. 566 U.S. at 11–12, 14; accord Shinn v. 
LEEDS V. RUSSELL 13

Ramirez, 142 S. Ct. 1718, 1733 (2022).2 In states that 

maintain such a requirement, the state habeas court is the 

only court that will review the merits of a trial counsel IAC 

claim. If a prisoner does not have adequate counsel in the

initial habeas proceeding, “[he] will have . . . difficulties 

vindicating a substantial [IAC] claim,” since he will be 

unable to “rely on a court opinion or the prior work of an 

attorney addressing that claim.” Martinez, 566 U.S. at 11–

12 (citing Halbert v. Michigan, 545 U.S. 605, 619 (2005)). 

Thus, to protect the prisoner’s “right to the effective 

assistance of counsel at trial,” Martinez held that an effective 

attorney is required in these initial-review collateral 

proceedings, and ineffective assistance by post-conviction 

counsel can establish cause for default. Id. at 12–14.

To show cause under Martinez, a petitioner must show 

that “counsel in the initial-review collateral proceeding, 

where the claim should have been raised, was ineffective 

under the standards of Strickland v. Washington.” Id. at 14. 

The Strickland standard requires the petitioner to show that 

(1) PCC’s performance was deficient, and (2) PCC’s 

deficient performance prejudiced the petitioner. Strickland, 

466 U.S. at 687. To show prejudice under Martinez, “a 

prisoner must also demonstrate that the underlying 

ineffective-assistance-of-trial-counsel claim is a substantial 

one, which is to say that the prisoner must demonstrate that 

the claim has some merit.” Martinez, 566 U.S. at 14. 

2 Although the Supreme Court’s recent decision in Shinn narrowed the 

circumstances in which Martinez applies, that decision does not impact 

this case because no new evidence is required to evaluate Leeds’s 

claims. See Shinn, 142 S. Ct. at 1734 (“We now hold that, under 

§ 2254(e)(2), a federal habeas court may not conduct an evidentiary 

hearing or otherwise consider evidence beyond the state-court record 

based on ineffective assistance of state postconviction counsel.”).
14 LEEDS V. RUSSELL

Because a petitioner must demonstrate both cause and 

prejudice, courts can analyze the two requirements in any 

order. See, e.g., Michaels v. Davis, 51 F.4th 904, 931 (9th 

Cir. 2022) (addressing prejudice first); Djerf v. Ryan, 931 

F.3d 870, 880–81 (9th Cir. 2019) (addressing only cause). 

“Although the cause and prejudice requirements are 

distinct, ‘there is considerable overlap between these 

requirements, since each considers the strength and validity 

of the underlying ineffective assistance claim.’” Michaels, 

51 F.4th at 931 (quoting Djerf, 931 F.3d at 880); see 

Dickinson v. Shinn, 2 F.4th 851, 858 n.3 (9th Cir. 2021)

(explaining that evaluating the second Strickland prong 

during the Martinez cause analysis necessarily requires some 

showing of the strength of the underlying trial counsel IAC 

claim). Notably, the standard for evaluating the underlying

trial counsel IAC claim during the Martinez prejudice 

analysis is not as stringent as that required when considering 

the merits of the underlying claim. See Michaels, 51 F.4th 

at 930 (“[A] conclusion on the merits of [a trial counsel IAC] 

claim under Strickland holds a petitioner to a higher burden 

than required in the Martinez procedural default context, 

which only requires a showing that the [trial counsel IAC] 

claim is ‘substantial.’”). Nonetheless, this “does not 

diminish the requirement . . . that petitioner satisfy the 

‘prejudice’ prong under Strickland in establishing 

ineffective assistance by post-conviction counsel [during the 

Martinez cause analysis].” Clabourne v. Ryan, 745 F.3d 

362, 377 (9th Cir. 2014) (emphasis added), overruled on 

other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 

2015) (en banc).

Only when a federal court has determined that a 

procedural default is excused under Martinez can it turn to 

the merits of the underlying IAC claim. See Martinez, 566 
LEEDS V. RUSSELL 15

U.S. at 17 (“A finding of cause and prejudice does not entitle 

the prisoner to habeas relief. It merely allows a federal court 

to consider the merits of a claim that otherwise would have 

been procedurally defaulted.”); Michaels, 51 F.4th at 936. 

With this framework in mind, we review Leeds’s claim.

IV.

We first address Martinez’s prejudice prong to determine 

whether Leeds’s underlying trial counsel IAC claim is 

substantial. We then turn back to Martinez’s cause prong 

and evaluate whether Leeds’s PCC’s failure to raise a trial 

counsel IAC claim based on the burglary theory constituted 

ineffective assistance under Strickland. We conclude that 

Leeds has demonstrated both cause and prejudice, excusing

his procedural default. 

A. Leeds’s Trial Counsel IAC Claim Is Substantial 

Under Martinez’s Prejudice Requirement

“To establish ‘prejudice’ under Martinez, the underlying 

trial counsel IAC claim must also be ‘a substantial one, 

which is to say . . . that the claim has some merit.’” 

Michaels, 51 F.4th at 930–31 (quoting Martinez, 566 U.S. at 

14). The Supreme Court has said little about the meaning of 

“substantial,” but has cited as analogous the standard for

granting a certificate of appealability under 28 U.S.C. 

§ 2253. See Martinez, 566 U.S. at 14 (citing Miller-El v. 

Cockrell, 537 U.S. 322 (2003)). For a certificate of 

appealability to issue, a habeas petitioner must show “that 

reasonable jurists could debate whether the issue should 

have been resolved in a different manner or that the claim 

was adequate to deserve encouragement.” Apelt v. Ryan, 878 

F.3d 800, 828 (9th Cir. 2017) (quotations omitted). Under 

that standard, “[a] court should conduct a ‘general 
16 LEEDS V. RUSSELL

assessment of the[] merits,’ but should not decline to issue a 

certificate ‘merely because it believes the applicant will not 

demonstrate an entitlement to relief.’” Cook v. Ryan, 688 

F.3d 598, 610 n.13 (9th Cir. 2012) (alteration in original) 

(quoting Miller-El, 537 U.S. at 336–37).

Leeds’s underlying claim is that his trial counsel 

provided ineffective assistance by failing to argue that he 

could not burglarize his own home, which could have 

prevented the State from relying on the felony-murder rule

as a basis for seeking a first-degree murder conviction. He 

argues that if the felony-murder rule had not been available, 

the State could not have shown beyond a reasonable doubt 

that he committed a willful, deliberate, and premeditated 

murder, and that he therefore could not have been convicted 

of first-degree murder. When considering whether trial 

counsel was ineffective, we again use the Strickland 

standard, though we do not apply it as strictly as if we were 

considering the merits of the claim. See Michaels, 51 F.4th 

at 930. 

1. Trial Counsel Performed Deficiently

Under Strickland, “the proper standard for attorney 

performance is that of reasonably effective assistance.” 466 

U.S. at 687. “When a convicted defendant complains of the 

ineffectiveness of counsel’s assistance, the defendant must 

show that counsel’s representation fell below an objective 

standard of reasonableness.” Id. at 687–88. This standard 

means “simply reasonableness under prevailing professional 

norms.” Id. at 688. That said, because it is easy to secondguess counsel’s assistance in hindsight, “a court must 

indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” 

Id. at 689. We “judge the reasonableness of counsel’s 
LEEDS V. RUSSELL 17

challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Id. at 690. 

Here, the State argues that Leeds’s counsel could not 

have performed unreasonably by failing to argue in 2006 that 

a person could not burglarize his own home because the 

Nevada Supreme Court did not so rule until 2014. See 

White, 330 P.3d at 486. It is true that White constituted the 

first instance in which the court addressed that question, and 

the reasonableness standard does not require counsel to 

predict changes in the law. See Sophanthavong v. 

Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (“Strickland 

does not mandate prescience, only objectively reasonable 

advice under prevailing professional norms.”). But just 

because the issue was not definitively decided until 2014

does not mean it would have been reasonable for a defense 

attorney not to make the burglary theory argument before 

that date. As the Nevada Supreme Court explained in White,

Nevada’s burglary statute is subject to two 

reasonable interpretations: (1) the Legislature 

intended to revoke the common law rule that 

burglary requires entry into the building of 

another, or (2) the Legislature incorporated 

the common law requirement by failing to 

expressly include one’s own home as a 

possible place of burglary.

330 P.3d at 484.

Because Nevada’s burglary statute was susceptible to

two interpretations, a reasonable counsel would have argued

for the interpretation that would preclude her client from 

facing a felony-murder charge. In concluding that “one 

cannot burglarize his own home so long as he has an absolute 
18 LEEDS V. RUSSELL

right to enter the home,” id. at 485–86, the White court 

considered the purposes of common law burglary, the 

legislative intent of Nevada’s burglary statute, and 

California’s approach to the issue. Id. at 485. These 

arguments were available before White, and it does not take 

the benefit of hindsight to realize the obvious strength of the 

approach.3

The Nevada Supreme Court confirmed as much in Weber 

v. State, 132 Nev. 1043, 2016 WL 3524627 (Nev. 2016)

(unpublished disposition). There, with an excellent 

perspective to evaluate professional standards for defense 

counsel in that state, the Nevada Supreme Court allowed a 

petitioner to go forward with the claim that his trial counsel 

was ineffective because he failed to argue that the petitioner

could not have burglarized his own home even though the 

counsel’s representation took place before White was 

decided. Id. at *12. The Nevada Supreme Court explained: 

“As White merely articulated the substantive law on burglary 

as it has always been in Nevada, appellate counsel could 

have challenged the burglary convictions and felony 

aggravating circumstance [before White was decided].” Id. 

The burglary theory argument was also not far-fetched. 

Nevada precedent supported the argument. In 1959, for 

example, the Nevada Supreme Court explained that while 

the codification of the Penal Code altered some elements of 

common law crimes, the “common-law definition of 

burglary is breaking and entering the dwelling house of 

3 Indeed, Leeds’s counsel understood that felony murder was easier for 

the State to prove than premeditation. She argued that the State should 

not be able to rely on the felony-murder rule, though she did not argue 

that it was inapplicable because Leeds could not burglarize his own 

home. 
LEEDS V. RUSSELL 19

another,” and while the legislature can alter a definition, “in 

legislating on crimes the definitions of which have been so 

well and commonly understood as the crime[] of 

burglary . . . , the substitution will not be presumed unless 

the intention is manifest.” Smith v. First Jud. Dist. Ct., 347

P.2d 526, 528–29 (Nev. 1959) (quoting State v. Petit, 72 P. 

1021, 1022 (1903)). While the Nevada legislature may have 

“expanded common law burglary in several respects, it has 

at least retained the notion that . . . one cannot burglarize his 

own home so long as he has an absolute right to enter the 

home.” White, 330 P.3d at 486.

The laws of states with similar burglary statutes also 

supported the burglary theory argument. In 1975, the 

California Supreme Court established that a person cannot 

burglarize his own home. See People v. Gauze, 542 P.2d 

1365, 1367 (Cal. 1975). The California court considered the 

California burglary statute, which is nearly identical to 

Nevada’s statute, and concluded that—while there were two 

reasonable interpretations—the purpose underlying 

common law burglary (i.e., protection of one’s own home 

from invasion) was not altered by the enactment of the Penal 

Code. Id. at 1366–67. Leeds’s counsel could have looked 

to California’s clear law, as the Nevada Supreme Court did 

in White. See 330 P.3d at 484–86; see also Hobbs v. State, 

251 P.3d 177, 179–80 (Nev. 2011) (considering California’s 

caselaw interpreting its battery statute to interpret Nevada’s 

similar statute).

Leeds’s counsel was “obliged to make, or at least to 

evaluate, an argument that [wa]s sufficiently foreshadowed 

in existing case law.” Bridges v. United States, 991 F.3d 

793, 804 (7th Cir. 2021). Because Nevada law could always 

have reasonably been interpreted to mean a person could not 

burglarize his own home (as the Nevada Supreme Court 
20 LEEDS V. RUSSELL

concluded in Weber), competent counsel would have been 

expected to make that argument.

2. Trial Counsel’s Deficient Performance 

Prejudiced Leeds

Because Leeds has made a strong showing that his trial 

counsel performed deficiently, we next ask whether that 

deficient performance prejudiced Leeds. In other words, 

“the question is whether there is a reasonable probability 

that, absent the errors, the factfinder would have had a 

reasonable doubt respecting guilt.” Strickland, 466 U.S. at 

695. Here, the State argues that even if Leeds’s counsel 

performed deficiently by failing to raise the burglary theory, 

Leeds was not prejudiced for two reasons. First, the State 

argues that Leeds cannot show that he had an unconditional 

right to enter the Evening Song house, so he could have 

burglarized the house and been found guilty of first-degree 

murder under the felony-murder theory. Second, the State 

argues that because there was overwhelming evidence that 

the murder was willful, deliberate, and premeditated, a jury 

would have found Leeds guilty of first-degree murder under 

that theory alone.

We review the district court’s factual finding that Leeds 

had “a right to enter the [Evening Song] home as a joint 

occupant” for clear error. See Earp v. Davis, 881 F.3d 1135, 

1142 (9th Cir. 2018). The State challenges this finding by 

arguing that there are three possible times at which Leeds 

did not have an unconditional right to enter. First, it argues

that Leeds never had an unconditional right to enter the 

Evening Song house. Second, it argues that he “moved out 

of the house on Wednesday,” three days before the murder. 

Third, it argues that after Leeds was escorted off the property 

by the police on Friday night (twelve hours before the 
LEEDS V. RUSSELL 21

murder) and voluntarily took his remaining personal 

belongings, any expectation he had of returning had been

extinguished.

All three arguments are unavailing. Leeds clearly lived 

in the Evening Song house with Lane from the time they 

moved in. It is true that Leeds was not listed on the lease, 

did not pay rent, and did not have a key to the house. But 

while these facts may be relevant considerations, they do not 

entirely determine whether Leeds had a right to enter the 

home. Cf. White, 330 P.3d at 486 (“[W]hile ownership may 

be one factor to consider, the appropriate question is whether 

the alleged burglar has an absolute, unconditional right to 

enter the home.”). Lane testified multiple times that Leeds 

lived at the house with her, that he did not need a key because 

the back door was always open, and that it was never their 

plan for Leeds to pay rent. She never testified that there was 

any issue with their living arrangements, beyond her few 

suggestions that he get a place of his own. When Leeds left 

on Wednesday for the Thanksgiving holiday, both he and 

Lane understood the situation to be temporary. A temporary 

exit does not terminate an occupant’s absolute right to enter. 

See id. at 486 (“Even though [defendant] orally agreed to 

stay elsewhere during the week, he still maintained an 

absolute right to enter the residence.”).

Leeds also did not give up his status as an occupant on 

the night before the murder. Although the State argues 

Leeds was “escorted off the property by the police” and that 

he “voluntarily took all of his remaining personal belongings 

with him,” this argument misstates the record. The police 

told Lane that Leeds had a right to stay at the house because 

he had been living there and she would need to evict him. 

Leeds voluntarily went with the police to cool off. Nor did 

Leeds collect all his property. He took his yoga mat and 
22 LEEDS V. RUSSELL

laptop, but his other belongings remained at the house and in 

the garage. The cases on which the State relies to argue 

Leeds instantaneously gave up his occupancy are inapposite. 

In both Sears and Ulloa, the defendants had fully separated 

from their wives and permanently moved out of the homes 

in question (for four months in Ulloa and for three weeks in 

Sears). See People v. Sears, 401 P.2d 938, 944 (Cal. 1965), 

overruled on other grounds by People v. Cahill, 853 P.2d 

1037, 1059 n.17 (Cal. 1993); People v. Ulloa, 102 Cal. Rptr. 

3d 743, 745 (Cal. Ct. App. 2009). Lane and Leeds had never 

fully separated, and Leeds had never moved out. The district 

court did not err when it assessed these facts to conclude that 

Leeds had an unconditional right to enter the Evening Song 

house.

We next consider the State’s argument that there was 

overwhelming evidence that the murder was willful, 

deliberate, and premeditated. We review this contention de 

novo. Although the State presented evidence to support its

premeditation theory, Leeds countered this theory by 

arguing that the case was about manslaughter. His counsel 

pointed to record evidence suggesting a self-defense or heatof-passion killing. Because the jury had to reach a 

unanimous verdict and the evidence towards any single 

theory was not overwhelming, the district court correctly 

concluded that a reasonable juror could have believed that 

Leeds acted in the heat-of-passion or that the State had not

proved the premeditation theory beyond a reasonable doubt.

It is thus possible that the outcome of the trial would 

have been different if trial counsel had raised the burglary 

theory to preclude the use of the felony-murder rule. Instead, 

the jury was instructed on both the felony-murder theory and

the willful, deliberate, and premeditated theory. In closing 

argument, the State explicitly told the jury: “You don’t have 
LEEDS V. RUSSELL 23

to agree on the theory. Remember, there’s two theories 

that’ll get you to first degree murder in this case.” The 

general verdict form does not tell us which theory each juror 

relied upon, but we do know that the jury found Leeds guilty 

of burglary, rendering it possible that at least one juror relied 

on the felony-murder theory to find him guilty of first-degree 

murder. Because the verdict must be unanimous, the 

outcome of Leeds’s trial could have been different if only 

“one juror would have struck a different balance.” Wiggins 

v. Smith, 539 U.S. 510, 537 (2003). We find it likely that, if 

the trial court had declined to instruct the jury on the felonymurder theory, at least one juror may have not been 

convinced beyond a reasonable doubt that Leeds—

distraught after discovering that his partner of twenty years 

was moving on—committed a willful, deliberate, and 

premeditated murder.

Leeds has thus shown that his trial counsel IAC claim is 

substantial. In other words, the claim has “some merit” and 

therefore satisfies Martinez’s prejudice requirement. 

B. Leeds’s PCC Provided Ineffective Assistance Under 

Strickland, Meeting the Martinez Cause Requirement

To show “cause” for his procedural default, Leeds must 

demonstrate that, in failing to raise an IAC claim based on 

trial counsel’s failure to assert the burglary theory, PCC was 

ineffective under the Strickland standard. Martinez, 566 

U.S. at 14. Strickland requires Leeds to show that (1) PCC’s 

performance was deficient, and (2) PCC’s deficient 

performance prejudiced Leeds. Strickland, 466 U.S. at 687. 

While we reviewed trial counsel’s actions in our Martinez

prejudice analysis under a more relaxed standard, see 

Michaels, 51 F.4th at 930, we apply the Strickland standard 
24 LEEDS V. RUSSELL

with full force when considering PCC’s actions in the 

Martinez cause analysis. See Clabourne, 745 F.3d at 377.

1. PCC Performed Deficiently

Again, the State argues that Leeds’s PCC could not have 

performed deficiently in 2013 because White was not 

decided until 2014. See White, 330 P.3d at 486. For the 

same reasons we explained above, we reject this argument. 

Although we evaluate PCC’s actions more stringently than 

we evaluated trial counsel’s actions, see Clabourne, 745 

F.3d at 377, our earlier analysis leads us to conclude that 

PCC’s “representation fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 687–88. We do not 

“second-guess counsel’s assistance” in hindsight, id. at 689, 

but rather recognize that it was unreasonable not to present

an argument that could have prevented the State from relying 

on the felony-murder theory to obtain a first-degree murder 

conviction.

As the Nevada Supreme Court explained, “White merely 

articulated the substantive law on burglary as it has always 

been in Nevada.” Weber, 2016 WL 3524627, at *12 

(explaining that appellate counsel “could have” challenged 

the burglary conviction before White, and PCC might have 

performed unreasonably by failing to raise an IAC claim on 

that basis). Just as trial counsel could have made the 

burglary theory argument in 2006, PCC could have made the 

argument in 2013 by relying on a common understanding of 

the definition of “burglary,” basic statutory interpretation 

principles, and the law of other states with similar criminal 

statutes. The failure to do so was unreasonable. As we noted 

above, counsel perform deficiently when they fail to “make, 

or at least to evaluate, an argument that is sufficiently 
LEEDS V. RUSSELL 25

foreshadowed in existing case law.” Bridges, 991 F.3d at 

804.

While PCC filed a 60-page habeas petition that identified 

many claims of error at the trial level, the thoroughness of 

the petition does not negate PCC’s failure to recognize a 

potentially dispositive claim. With felony-murder on the 

table, the State only had to prove that Leeds committed 

burglary, a much easier task than proving—beyond a 

reasonable doubt—that Leeds committed a willful, 

deliberate, and premeditated murder. Given those stakes, 

trial counsel provided ineffective assistance by failing to 

make the burglary theory argument, and PCC performed 

deficiently by failing to recognize that error. See Michaels, 

51 F.4th at 934 (“Had PC[C] performed adequately, they 

would have recognized trial counsel’s conduct amounted to 

ineffective assistance and raised the IAC claim in the first 

habeas petition.”).

As the record shows, PCC did not raise the burglary 

theory until White was decided, although the argument was 

always available. Given the importance of the burglary 

theory argument to Leeds’s case, counsel’s failure was 

substantial. In short, a “failure to recognize a potentially 

viable IAC claim is not a strategic decision.” Michaels, 51 

F.4th 935. We therefore affirm the district court’s finding 

that Leeds’s PCC performed deficiently because a 

reasonably competent post-conviction counsel would have 

recognized the trial counsel’s error in failing to advance the 

burglary theory argument.

2. PCC’s Deficient Performance Prejudiced Leeds

Having concluded that PCC’s performance was 

deficient, we consider Leeds’s argument that this deficient 

performance prejudiced him, thereby meeting the second 
26 LEEDS V. RUSSELL

Strickland prong and showing cause under Martinez. See 

Martinez, 566 U.S. at 14; Strickland, 466 U.S. at 691. To 

show 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. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.” Strickland, 466 

U.S. at 694. Moreover, the “question is not whether the

particular [post-conviction review] court would have 

rendered a more favorable decision, but whether some 

reasonable [post-conviction review] court might have done 

so.” Michaels, 51 F.4th at 935 (citing Apelt, 878 F.3d 827). 

Leeds must show that, if PCC had raised an IAC claim based 

on trial counsel’s failure to argue the burglary theory, a

reasonable Nevada court could have granted his postconviction petition.

“Whether PC[C]’s ineffectiveness prejudiced [Leeds] 

depends in part on the strength of his underlying trial counsel 

IAC claim, Djerf, 931 F.3d at 880, and in part on the use 

PC[C] could have made of that claim had it been properly 

raised in the state habeas petition.” Michaels, 51 F.4th at 

935; see also Dickinson, 2 F.4th at 858. If the underlying 

IAC claim were meritless, PCC “would not be ineffective for 

failure to raise an [IAC] claim with respect to trial counsel 

who was not constitutionally ineffective.” Sexton, 679 F.3d 

at 1157. As discussed above, Leeds’s trial counsel IAC 

claim is substantial. The underlying claim here is strong, 

because—since Leeds was found guilty of burglary and the 

evidence of premeditated murder was not overwhelming—it 

is likely that some jurors found Leeds guilty of first-degree 

murder by relying on the felony-murder theory. If the 

felony-murder theory had not been available to the jurors, 

Leeds may not have been convicted of first-degree murder 
LEEDS V. RUSSELL 27

at all. Thus, if trial counsel had recognized and asserted the 

burglary theory, the outcome of Leeds’s trial may have been 

different. 

Given the strength of the underlying claim, it is likely 

that PCC would have been able to rely on the IAC claim to 

persuade a post-conviction review court that Leeds was 

denied effective assistance when his trial counsel failed to 

assert the burglary theory and thereby allowed the State to 

prove its case under the easier felony-murder theory. Any 

reasonable court would have seen the strength of the 

burglary theory argument and its potential to avoid a firstdegree murder conviction. There is thus “a reasonable 

probability that . . . the result of the [post-conviction] 

proceeding would have been different” if PCC had not failed 

to allege an IAC claim based on the burglary theory. See 

Strickland, 466 U.S. at 694. Indeed, the “likelihood of a 

different result [is] substantial, not just conceivable.” 

Harrington v. Richter, 562 U.S. 86, 112 (2011) (describing 

the Strickland prejudice standard). 

In sum, we conclude that it is reasonably probable that a 

Nevada court would have granted Leeds’s post-conviction

petition if PCC had properly asserted Ground Two. It is not 

lost on us that Nevada’s Supreme Court has already 

recognized a willingness to hear such claims. See Weber, 

2016 WL 3524627. We thus conclude that PCC’s failure to 

assert an IAC claim based on the burglary theory prejudiced 

Leeds. Leeds has demonstrated that his PCC was ineffective 

under Strickland, meeting Martinez’s cause requirement. 

Because we conclude that Leeds has demonstrated cause 

and prejudice under Martinez, we affirm the district court’s 

conclusion to excuse the procedural default of Ground Two.
28 LEEDS V. RUSSELL

V.

After the district court concluded that Leeds’s procedural 

default was excused, it reached the merits of Leeds’s trial 

counsel IAC claim. See Martinez, 566 U.S. at 17 (explaining 

that courts consider the merits of a claim only after excusing 

procedural default). The court applied Strickland, concluded 

that Leeds’s claim was successful, and granted habeas relief. 

It is not entirely clear whether the State challenges the 

district court’s decision on the merits of Leeds’s IAC claim. 

The State’s briefing focuses primarily on the district court’s 

finding of prejudice, both during the Strickland analysis in 

the Martinez cause prong and in the Martinez prejudice 

analysis. Nonetheless, we construe the State’s argument as 

also challenging the district court’s merits determination. 

We affirm. To succeed on his IAC claim, Leeds was 

required to prove: “(1) that his counsel’s performance fell 

below an objective standard of reasonableness (the deficient 

performance prong); and (2) that there is a reasonable 

probability of a more favorable outcome if counsel 

performed effectively (the prejudice prong).” Rogers, 25 

F.4th at 1181 (citing Strickland, 466 U.S. at 687–88). As we 

have repeatedly discussed above, the burglary argument was 

always available to counsel. Had counsel raised the burglary 

argument, it is reasonably probable that the trial court would 

not have allowed the State to rely on the felony-murder 

theory as a basis for a first-degree murder conviction. Trial 

counsel’s failure to raise this objectively important argument 

constituted deficient performance.

We cannot determine whether the jury (or any juror)

relied on the felony-murder theory or the willful, deliberate, 

and premeditated theory to convict Leeds of first-degree 

murder, but we know the jury found him guilty of burglary. 
LEEDS V. RUSSELL 29

See Yates, 354 U.S. at 312 (a verdict should be set aside “in 

cases where the verdict is supportable on one ground, but not 

on another, and it is impossible to tell which ground the jury 

selected”). It is probable that at least one juror relied on the 

felony-murder theory. Because the outcome of the trial 

would have been different if even “one juror would have 

struck a different balance,” Wiggins, 539 U.S. at 537, “there 

is a reasonable probability that . . . the result of the 

proceeding would have been different” without the use of the 

felony-murder rule. Strickland, 466 U.S. at 694. Trial 

counsel’s deficient performance thus prejudiced Leeds. The 

district court therefore did not err in granting him habeas 

relief.

VI.

For the foregoing reasons, we affirm the district court’s 

judgment to excuse the procedural default and grant Leeds’s 

habeas petition on the basis of Ground Two. 

AFFIRMED.