F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S A R A H W E E D E

N , Petitioner-Appellant
,

v.

D E B O R A H K. J O H

N S O N , R espondent-Appellee. No. 14-17366

D .C. No. 2:13-cv-02667-J KS

OPI N I ON

A ppeal from the United States District Court for the Eastern District of California J ames K. Sing leton, District J udg e, Presiding

Arg ued and Submitted October 18, 2016 San F rancisco, California

F iled April 21, 2017

B efore: Consuelo M. Callahan and Andrew D. Hurwitz
, Circuit J udg es, and Donald W . Molloy
, * District J udg e

.

Opinion by

J udg e Hurwitz ; Dissent by

J udg e Callahan

* T h e H o n orab le Do n ald W

. Mo l lo y , Un ited States District Ju d g e f or th e District o f

Mo n tan a, sittin g b y

d esig n atio n

.W E E D E N V

. J O H

N S O N 2

SUMMARY * *

Habeas Corpus

The panel reversed the district court’s d e n i a l of Sarah W e e den’s habeas corpus petition challeng ing her California felony -murder conviction for her role in a bung led r obber y that occurred when she wa s fourteen, and r emanded for issuance of the writ.

W e ede n cl aimed that her trial counsel provided ineffective assistance by failing to se e k a psy cholog ical evaluation about the effect of her y o uth on her mental state. The panel held that the California Court of Appeal’s finding that counsel r endered adequate performance because he made

a tactical decision not to investig ate was contr ar y to, o r i n v olved an unreasonable application of, clearly e stablishe d Supreme Court law. The panel w rote that under Strickland v

. W ashington
, c ounsel’s investig ation must determin e trial strateg y , not the other wa y a ro u n d; and that W eeden’s counsel c ould not have reasonably c oncluded that obtaining

a psy c holog ical ex amination would c o nflict with h i s t rial strateg y without fi r s t knowing what such a n ex amination would reveal.

The panel held that had counsel presented to the jury the opinion o f Dr. L isa Perrine, Ph.D., a psy cholog ist w ho evaluated W eeden a fter the verdict, the probability of a different result is sufficient to undermine c onfidence in the

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W E E D E N V

. J O H

N S O N 3

outcome, and that counsel’s deficient performance therefore requires issuance of the writ.

Dissenting
, J u dg e Callahan wrote that the majority disreg ards the substantial deference federal courts o w e to both trial counsel and state courts, and e stablishes, in essence,

a per se rule r eg arding ex perts that will call into question
many constitutionally -sound state convictions.

COUNSEL

Charles M. B onneau, J r. (arg ued), Sacramen

t o , California, for Petitioner-Appellant.

C h r istina H itomi Simpson (arg ued), Deputy Attorne y General; Eric L

. Christoffersen, Supervising D eputy Attorney General; Michael P. F arrell, Senior Assistant A ttorney General; Office of the Attorney G eneral, Sacramento, California; for Respondent-Appellee.W E E D E N V

. J O H

N S O N 4

OP INION

HURW I TZ , Circuit J udg e:

Sarah W eeden was convicted in California state court of felony murder and sent e n ce d to twenty -nine y ears to life in prison for her role i n a b ung led robbery that occurred when she was fourteen. She was not present at the scen e o f the crime; the prosecution’s case rested o n e vidence o f her role in planning and facilitating the robbery

.

W e eden’s defense at trial consisted en t i r e l y of four character witnesses. Trial counsel did not seek an evaluation by a psy cholog ist or present ex pert testimony about the effect of W eeden’s y outh o n h er mental state. I n post-trial proceeding s, counsel claim ed t hat h e did not o btain an evaluation because the result mig ht not support h i s defense strateg y

.

I n a 28 U.S.C. § 2 2 54 h a b eas corpus petition, W eeden claimed that her trial counsel provided constitutionally ineffective assistance of counsel

. The state courts rejected this claim, finding that counsel’s refusal t o i nvestig ate psy cholog ical testimony was a reasonable strateg ic decision. The district court denied habeas relief; we reverse and order the district court to issue the writ.W E E D E N V

. J O H

N S O N 5

BACK G ROUND

A. Underlying F acts and Trial

I n J uly 2005, W eeden and three other fourteen-y ear-old
g irls were walking down the street w hen a car approa c hed. 1 I nside were four boy s, including tw e n ty -two-y ear-old Deovinesh Kumar and seventeen-y ear-old Navnil C h a nd. Kumar invited the g irls to “par ty ,” promising b eer a nd “weed.” The g irls declined, but one of them, A n ge la, g ave the boy s W e eden’s cell phone number. L ater that nig ht, W e e den and A ng ela met with two of their friends, fourteeny ear-old J ohn W

. and six teen-y ear-old Ry an Moore. W eeden told them ab out the interaction with Kumar and Chand. Moore sug g ested rob b i n g them; W eeden replied “y eah, we should.”

Day s later, W e e den told Ang ela that the robbe r y w o u ld take place at a p ark. Weeden asked J ohn to participate, but he refused. Moore told J ohn’s cousin, J a n ee H ill, of a plan to rob some “East I

ndian boy s” for “weed and money .”

On Aug ust 5, W eeden told Hill that the boy s she met h ad been “crank calling ” h er and inviting her to a motel. W eeden told Hill that Moore was g oing to rob the boy s. Hill warned that robberies can g o wrong ; W eeden responded “okay .”

That e v e n ing
, after calling W e eden, Chand told Kumar that the g ir l s they had e n c o untered in J uly would meet them

1 W e rel y o n th e Calif

o rn ia Co u rt o f A

p p eal’ s recitatio n o f th e

ev id en ce. S

ee Peo p le v. Melo n so n , No s. C0 6 1 3 5 2
, C0 6 1 8 0 0
, 2 0 1 3 W L 1 9 8 7 2 4 0 , at * 1

– 1 1 (Cal. Ct. A p p . May 1 5, 2 0 1 3 ), a s mo d ified o n den ia l

o f reh ’g (J u n e 1 4 , 2 0 1 3 ).W E E D E N V

. J O H

N S O N 6

at a park. Kumar drove to the p ark. While waiting in the car, Chand spoke on the phone to a g irl who said, “I ’ll be there in
two to three minutes.” Chand r e p l i e d, “ I ’m waiting for y ou over here by the park.”

At the same time, Moore w as with twenty -y ear-old Sirtice Melonson at a nearby p ark. Moore was o n t h e phone with Hill, w h o i n turn used a second phone to talk to W e eden. W e e den told Hill to ask Moore whether he saw the boy s’ car; Moore said no. W e eden directed Moore to a diffe r e n t p ark, where Moore saw a g old car. W eeden said “that’s them.”

M elonson approached the c ar, stuck a handg un in t h e window, and ordered Kumar and Chand to ex it. B efore they could comply
, the g un went off. K umar sped off amid f

urther
g unfire. Chand later died of a g unshot wound.

Phone records from that e vening confirm that: (1) Chand called W eeden repeatedly until the shooting
, (2) W eeden a nd Moore ex chang ed calls until approx imately twenty minutes before the shooting
, (3) W eeden was on the phone with Hill until the shooting
, and (4) Hill called Moore multiple times before and after the shooting

. Neither Hill nor Weeden was

near the park. Months later, W e ed e n sent tex t messag es to Moore a cknowledg ing that she knew about the robbery plan in advance but deny

ing that it was her idea.

The only d e f

ense evidence at trial came from four character wi t n e s s e s; e a ch testified that W eeden was not the
sort of p e rson who would p la n a robbery

. I n closing
arg ument, Weeden’s counsel asserted that Melonson decided
to commit the robbery without W eeden’s knowledg e. He also
urg ed the jury to consider Weeden’s ag e and manipulability :W E E D E N V

. J O H

N S O N 7

Try to p ut g lasses on o f a 14-y ear-old g irl.

. . . You’re easily manipulated.

. . . Bu t the Prosecution wants to charg e her as an adult, under adult stand a r d s. B ut y ou can take into

c o n sideration, put on those g lasses of a 1 4

- y ear-old g irl and tee, h e e , h ee, older boy s want to talk t o m e a n d what should I do a nd let’s send ‘em on a wild g ood [ sic] chase. That’s a 14-y ear-old g irl, it just is, and y ou g et to p ut those gl a s s e s o n. And it’s [ sic] easily

man i p u lated by older people when she stepped into this mess of vipers. A nd blaming her f or this is like blaming a child molest [ sic] victim. She’s 14. She don’t [ sic] know w hat she’s d o i n g. She g ets manipulated into sending these boy s out to g et stood up.

The jury found W eeden g uilty o f attempted robbery and firstdeg ree felony murder, b ut acquitted her of attempted murder. W e e den was sentenced to twenty -nine y ears to life in prison.

B. The New Trial Motion

Represented b y n e w counsel, W eeden moved for a new trial, claiming that her trial counsel was ineffective for failing
to investig a te or present psy c h o log ical evidence. I n support of the motion, W eeden submitted a psy cholog ical report from L isa Perrine, Ph.D., who evaluated W e e den after the verdict. Dr. Perrine opined that althoug h W eeden could comprehend the conce p t of robbery
, “it is ex tremely unlikely she would intend to commit robbery or knowing ly participate in one,” and “she would probably be slow to u nderstand that a robbery

w a s b eing c onsidered by others if their intentions were not clearly a rticulated.” D r

. P e r rine also found Weeden to beW E E D E N V

. J O H

N S O N 8

“quite passive and vulnerable to being manipulated b y

o t h ers,” and concluded she had “ serious cog nitive defici t s (for ex ample, 91% o f people her ag e function[ ed] intellectually at a hi g h e r level),” “well below a verag e lang uag e skills,” and “a strong tendency to miss important environmental cues.”

W e eden’s trial c o unsel stated in a declaration that he did
not investig at e p s y cholog ical testimony because he “did not consider a psy c holog ist’s opinion to be r elevant to the issues in this prosecution.” At a n evidentiary h earing
, trial counsel admitted that he had “contemplated” seeking a psy cholog ical evaluation, but did n ot do so because “reg ardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth.” Counsel also speculated the p r o secution mig ht have used the results of an ex amination
ag ainst W eeden:

Q: You didn’t know what the d octor w o uld conclude, thoug h. I s that rig ht?

A: No, that is true. T h a t is true. B ut – for i n stance, if the doctor were to conclude t h at she was completely immature for instance a nd

– and easy – e asily m a n ipulated, my concern would have been that the Prosecution would have used that to show t h a t she didn’t understand p erhaps the mag n itude o f a robbery
, but still participated i n i t

. So I h ad

some concern s t hat that could be twisted a nd turned ag ainst her.W E E D E N V

. J O H

N S O N 9

The state trial c ourt denied the new trial motion, characteriz ing counsel’s failure to obtain a psy cholog ical

ex a mination as a “sound tacti c al decision.”

C. Direct Appeal

The California Court of Appeal affi rmed W eeden’s conviction. The court disposed of W eeden’ s i n e ffective assistance claim in four par ag raphs. The first p arag raph recited the familiar leg al standard for e stablishing ineffective assistance of counsel set f orth in Strickland v. W

a shington
, 466 U.S

. 6 6 8
, 687–688 (1984). People v. Melonson
, N os. C061352, C061800, 2013 W L 1987240, at *21 (Cal. Ct. App. May 15, 2013), as modified on denial of reh’g ( J une 14, 2013). The second parag raph concluded that counsel made

a “ r e asonable tactical decision” not to seek a psy cholog ical

ex a mination because an ex amination “ mig ht undermine” his trial strateg y :

W e eden contends trial counsel’s decision
not to have her ex amined by a psy chol o g ist

was not a sound t actical decision. However, trial co unsel articulated a very reasonable tactical decision for not r e questing such an

ex a mination. I f the ex amination revealed W e ed e n w a s e a s i l y m a n i p u l a t e d
, t h e p r o secution could c laim this was evidence tha t althoug h W eeden did not u n derstand the
mag nitude of the robbe r y , she nonetheless
went along with it. I n e sse n c e , the

ex a mination mi gh t undermine the defense strateg y trial counsel was pursuing at trial.W E E D E N V

. J O H

N S O N 10

Id. Th e t h ird parag raph acknowledg ed W eeden’s arg ument that Dr. Perrine’s testimony mig ht have made a difference at trial, but, rather than determining whether the failure to pr e s e nt that testimony was prejudicial, the fourth p arag raph

r e i terated the risk that such testimony “mig ht w ell h a v e undermined” counsel’s trial strateg y :

I n addit ion, Weeden arg ues the lack o f
psy ch olog ical testimony on her lack o f specific intent ‘ undermines confidence in the
outcome of this trial.’ According to W e eden, the testimony o f Dr. Perrine would have raised a re a s o nable d oubt as to whether W e eden harbored a s p ecific intent to rob. Presented with Dr. Perrine’s testimony
, the jury would not ha

ve concluded Weeden joined in Melonson’s criminal intent to commit armed robbery

. Aga i n , trial counsel p ursued the defense that W eeden did n ot set up the robbery o r

a g ree to it. The testimony W eeden cl a i m s counsel w as ineffective in failing to present mi g ht well have undermined this defense. Among Dr. Perrine’s fi n d i ng s was that W e eden had a strong tendency to be a passive follower, whi c h m ig ht have led the jury to conclude she did not i n itiate the robbery but, sheep-l i k e, went along with it. W e find no ineffective assistance.

Id.W E E D E N V

. J O H

N S O N 11

Th e California Supreme Court summarily denied W e e den’s petition for review.

D. F ederal Habeas P e tition

W e eden then filed a 28 U.S.C. § 2 254 habea s co r p us petition in the United States District Court fo r the Eastern District of Cali fornia. That court denied the petition a nd declined to issue a certificate of ap p e a l a bility

. W eeden v

. Johnson
, No. 2:13-CV-02667-J K S, 2 014 W L 6808778, at *16–18, *27 ( E.D. Cal. Nov. 26, 2014). A panel of this court g ranted a certificate of appealability

. We have jurisdiction o f W e e den’s appeal under 28 U.S.C. § 1291 and § 2253(a).

D ISCUSSION

W e review the district court’s denial of W eeden’s h abeas
corpus petition de novo. Lambert v. Blodgett
, 393 F .3d 943, 964 (9th Cir. 2004). Under the Antiterror i sm and Effective Death Penalty Act o f 1 996 (“AEDPA”), habeas relief may not be g ranted “with respect to any claim that was adjudicated on th e merits in State court proceeding s” unless the state decision w as (1) “contrary to, or i n v olved an unreasonable application of, clearly established F ederal law, as determined by the Supreme Court of the U nited States,” or (2) “based on

an unreasonable determination of t h e facts in lig ht of the evidence presented in the State court proceeding .” 28 U .S.C. § 2254 (d). W e a

pply AEDPA’s standards to “the state court’s ‘ last r e asoned decision’ on the claim,” in this case the decision of the California Court of Appeal

. Edwards v

. Lamarque
, 4 75 F

. 3 d 1121, 1126 (9th Cir. 2007) ( e n b a n c ) (quoting Y

lst v. Nunnemaker
, 5 01 U.S. 7 97, 8 03–04 (1991)).W E E D E N V

. J O H

N S O N 12

A. Def icient P erf

orm ance

U n der the two-prong ed framework of Strickland
, t h e Six th Amendm ent g uarantee of counsel in a criminal proceeding is v iolated if “counsel’s performance was d eficient” and “the deficient performance prejudiced the defense.” 466 U.S. at 6 87. Our revi e w o f the Court o f Appeal’s holding that Weeden’s counsel was not deficient is “doubly ” deferential, because S trickland requires state courts to g ive d eference to choices made by counsel and AEDPA in
turn requires us to defer to the determinations of state courts. Harring t o n v. Richter
, 5 62 U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance , 556 U.S. 111, 123 (2009)).

Even under this demanding standard of revie w , w e

co n c l u de that the Court o f Appeal’s conclusion that W eeden’s trial counsel provided effective representation was “ contrary to, or involved an unreasonable a ppl i cation of,” clearly established Supreme Court law. 28 U.S.C. § 2 254(d)(1). The Supreme Court has repeatedly made plain that counsel h as the “duty to make reasonable investiga t i o ns or to make a reasonable decision that makes particular invest i ga tions
unnecessary .” Strickland
, 466 U.S. at 691; Kimmelm an v

. Morrison
, 477 U.S. 365, 384 ( 1986); W iggins v. Smith
, 539 U.S. 510, 521 (2003); Hinton v. Alabama
, 134 S

. Ct. 1081, 1088 (2014).

The Co urt of Appeal d id not identify any “reasonable decision” made by W eeden’s trial counsel that re n d er e d an investig ation of p sy cholog ical evidence “unnecessary

. ” Strickland
, 4 66 U.S. at 691. I nstead, it concluded that the choice not to investig ate p sy c holog ical evidence was a sound “tactical decision” because c ounsel f eared that the r e sults of

an ex pert e valuation mig ht u n dermine his trial strateg y

.W E E D E N V

. J O H

N S O N 13

Melonson
, 2013 W L 1987240, at *21. B ut that analy sis “puts the cart before the h o r s e

. ” Bemore v

. Chappell
, 788 F .3d 1 1 5 1
, 1167 (9th Cir. 2015), cert. denied sub nom. D avis v. Bemore
, 136 S. Ct. 1173 ( 2016). Counsel cannot justify a failure to investig a te simply by invoking strateg y

. The Supreme Court has squa r e l y rejected the “attempt to justify [ a] limited inve stig ation as reflecting a tactical judg ment.” W iggins
, 539 U .S. at 521; see also W illiams v. Tay l o r , 529 U.S. 362, 396 (2000) (failure to u ncover mitig ating evidence was “not justified b y a tactical decision” where counsel “did
not fulfill their oblig ation to conduct a thoroug h investig ation of the defendant’s b a c kg r ound”). Under St r i c k l a n d
, counsel’s investig ation must determine trial strateg y , not the other way around. E.g

. , Bemore
, 788 F .3d a t 1166–67; Reynoso v

. Giurbino
, 462 F .3d 1 099, 1112 (9th Cir. 2006); Phillips v

. W oodford
, 267 F .3d 966, 978 (9th Cir. 2001). W eeden’s counsel c ould not have reasonably c onclud e d that obtaining

a psy c holog ical ex amination would c o n f l i c t with his trial strateg y without first k

nowing what such a n e x amination would reveal. Equall y u n persuasive was counsel’s conclusion that the prosecution could have used the results o f

an ex amination a gainst W eeden. W hile a defendant must disclose ex p ert r eports sh e i n t e nds to r ely on a t trial, Cal. Penal Code § 1054.3(a), simply pro c u r i ng a report does not

mean it must b e produced, Sandeff e r v. Super. Ct.
, 22 Cal. Rptr. 2d 2 61, 264 (Ct. App. 1993 ) ; Hines v. Super. Ct.
, 25 Cal. Rptr. 2d 712, 715 (Ct. App. 1993).

The correct inquiry is not whether psy cholog ical evidence would have supported a preconceived trial s t rateg y , but whether W eeden’s counsel had a duty to investiga t e s u ch evidence in order to form a trial strateg y , considering “all the circumstances.” Strickland , 466 U.S. at 691. The answer is
y es. The prosecution’s felony murder theory required p r o o fW E E D E N V

. J O H

N S O N 14

that Weeden had “spe c i fi c intent to commit the underly ing felony ,” People v

. Jones
, 98 Cal. Rptr 2d. 724, 727 (Ct. App. 2000), so W eeden’s “ mental condition” was a n essential factor in deciding whet h er she “actually h a d the r equired

m e n t al states for the crime,” P eople v

. Steele
, 47 P.3d 2 2 5
, 2 40 (Cal. 2002). T he Supreme Court has repeatedly n oted
t h a t the mind of a fourteen-y ear-old is markedly les s developed than that of a n adult, see, e .g. , J.D.B. v. North Carolina
, 564 U.S. 261, 272–73 (2011); Graham v. Florida
, 560 U.S. 48, 68 (2010); Roper v. Simmons
, 543 U.S. 5 51, 569–70 (2005), and trial c o unsel described W e eden a s “unusually immature.” 2 Given the ex culpatory potential of
psy cholog ical evidenc e , counsel’s failure to investig ate “ig nored pertinent avenu e s for investig ation of which he should have been a

w are.” Porter v. McCollum
, 558 U.S. 30, 40 (2009).

Counsel’s performance was deficient because he failed to investig ate, a failure hig hlig hted by his later unreasonable justification for it. W e do not sug g est that counsel must investig ate p sy cholog ical e vidence in every case, or e ven the ordinary c ase. B ut the Supreme Court has m a d e c lear that

some “[ c] r iminal cases will arise where the only reasonable and available defense strateg y requires con s u l tation with

ex p erts.” Harrington
, 5 62 U .S. at 106. F or the reasons noted above, this was such a case. The Court of Appeal’s finding that counsel rendered adequate performance b ecause he made

a tactical decision not to investig ate was t h erefore “ contrary

2 Mo reo v er, sev eral w itn esses h eard W eed en talk in g ab o u t th e

r o b b ery in ad v an ce, ren d erin g co u n sel’ s arg u m en t th at W eed en w a s ig n o ran t of th e ro b b ery p lan q u ite w eak

. S ee Bemo re , 7 8 8 F.3 d a t 1 1 6 7 (co u n s el’ s du ty t o in v e s t i g a te m en tal h ealth d ef en se w as “ esp ecially critical” w h ere “ th e w eak n esses o f an alib i sh o u ld h av e b een k n o w n ”).W E E D E N V

. J O H

N S O N 15

to, or involved an unreasonable a pplicati o n of,” clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).

B. P rejudice

Counsel’s deficient performance justifies relief only if there is a “reasonable probability ” that the ju r y would have reached a d ifferent result if adequate representation had been afforded. Strick l a n d
, 466 U.S. at 694. A reasonable probability is o ne “sufficient to u ndermine confidence in the outcome.” Id. Althoug h counsel’s deficient performance
must have had more than a “conceivable effec t ” o n t he outcome, it need not have “more likely than not altered” the
outcome. Id

. a t 6 93. And, because the jury was required to reach a unanimous verdict on each count, the outcome could have differed if only “one juror would have struck a different balance.” W

iggins , 539 U.S. at 537. 3

Had the California Cour t o f Appeal f ound that trial counsel’s p erformance, even if deficie n t , did not meet the Strickland “ reasonable probability ” stan d a rd
, we w o uld o f

course be r equired to a fford t h at determination AEDPA def e r e nce. B ut the Court of Appeal made no such determination. Althoug h the state c ourt ackno w l e dg ed W e e den’s arg ument about prejudice, it pretermitted that point, simply reiterating its previous conclusion that counsel’s performance was not deficient:

3 “ T h e S trickla nd p rej u d ice an aly sis is co m plete in itself

; th ere is n o p lace f o r an ad d itio n al h arm less- erro r rev i ew .” Avila v. G a la za , 2 9 7 F.3 d 9 1 1
, 9 18 n .7 (9 th C i r

. 2 0 0 2 ) (alteratio n o m itted ) (q u o tin g Ja ckso n v. Ca ld ero n , 2 1 1 F.3 d 1 1 4 8, 1 1 5 4 n .2 (9 th Cir. 2 0 0 0 )).W E E D E N V

. J O H

N S O N 16

W e eden a r g ues the lack of psy cholog ical testimony on her lack of specifi c i ntent ‘undermines c onfidence in the o utcome of this trial.’ . . .

Ag ain, trial counsel pursued the d e fense that W eeden did n ot set up the robbery o r ag ree to it. The testimon y W e eden claims counsel w as ineffective in failing to present mig ht well h ave u ndermined this defense. Amo n g Dr. Perrine’s finding s was that W e eden had a strong tendency to be a passive f o l l ower, which mig ht have led the jury t o conclude she did not i n itiate the robbery but, sheep-like, went along with it. W e find no ineffective assistance.

Melonson , 2013 W L 1987240, at *21. B ecause the Court o f Appeal did n ot r each the issue of prejudic e , we address the issue de novo. Rompilla v. Beard
, 545 U.S. 374, 390 (2005) (ex amining prejudice de novo where state court did not reach the issue); W

iggins
, 539 U.S. at 534 (same); see also Porter
, 558 U.S

. at 39 (ex amining deficient performance de novo where state c ourt did not reach the issue); Miles v. Ryan
, 713 F .3d 477, 489–90 (9th Cir. 2013) (same).

Even a ssuming
, as the dissent sug g ests, that the Court o f Appeal reached the p rejudice i s s u e b y speculating that Dr. Perrine’s testimony “mig ht have” led the jury to t h e s a me result, Dissent a t 35, the state court then plainly a pplied the
wrong leg al standard. Strickland a sks whether the r e i s a “reasonable probability ” o f a different result, not whether the jury “mig ht have” reached the same result. 466 U.S. at 694. And, when the state c ourt a p plie s a n i ncorrect standard, ourW E E D E N V

. J O H

N S O N 17

prejudice analy sis is “unconstrained” by AEDPA d eference. W illiams v. Taylor , 529 U.S. 362, 405–06 (2000).

After evaluating W eede n , D r

. Perrine concluded that “it is ex tremely unlikely she would intend to commit robbery o r knowing ly p articipate in one,” that “she would proba bly be slow to understand that a robbery was being considered b y others if t h e i r intentions were not c learly a rticulated,” a

nd that she was “quite passive and v u lnerable to being manipulated b y o thers.” This testimony from a qualified

ex p ert “would have added an en t i r e l y new dimension to the jury ’s assessment” of the critical issue o f W eeden’s mens rea. Vega v. Ryan
, 757 F .3 d 9 6 0
, 974 (9th Cir. 2014) (quoting United States v. Kohring
, 637 F

. 3d 895, 905–06 (9th Cir. 2010)). Weeden was n o t at the crime scene a nd did not personally commit either the r obbery o r the murder. The state’s evidence of her intent was therefore presented throug h testimony by o thers a

bout what she sa i d a n d tex t messag e s

s e nt months after the events at issue. That evidence d i d n o t

o ffer the k ind of critical insig ht into the effect of W e e d e n ’s
y outh on her mental state that D r. Perrine’s c o n c lusions provided. 4 Moreover, althoug h the jury f ound W eeden g uilty of attempted robbery and first-deg r ee felony murder, she was acquitted of attempted murder. This frag mented verdict is an “additional indicator of prejudice.” Vega , 757 F .3d at 974.

The state surmises that, if Dr. Perrine had te stified, it would h ave presented rebuttal evidence. B ut the record contains n o such evidence. I n determining how omitted evidence would have altered the trial, “we may n o t i n v e nt

4 A lth o u g h W eed en ’ s co u n s el u rg ed th e j u ry to co n sid er h er ag e an d

m an ip u lab ility in h i s clo sin g arg u m en t, th e j u ry h ad scan t ev i den tiary b asis o n w h ich to d o so in th e ab sen ce o f ex p ert testim o n y

.W E E D E N V

. J O H

N S O N 18

arg uments the prosecution could have made.” H ardy v. Chappell
, 832 F .3d 11 2 8
, 1141 (9th Cir. 2016). The state also speculates that the jury would have assig ned little w eig ht
to Dr. Perrine’s testimony
, because her conclusions were based on interviews c onducted y e ars after the offense. W hile that criticism may suppor t a line o f c ross-ex amination at retrial, Dr. Perrine’s tes t imony is uncontradicted on the record before us, and is di re c t l y probative of a critical element in the case, W eeden’s mens rea.

Considering all t he circumstances of this case, we conclude that, had Dr. Perrine’s opinion been presented to the jury
, the probability of a differen t r e sult is “sufficient to undermine c onfidence in the outcome.” Strickland
, 466 U.S.
at 694. Counsel’s deficient performance therefore req u i r e s issuance of the writ.

C. The Dissent

W e add a brief rejoinder to the c o ncerns of our dissenting colleag ue. Contrary to her repeated a s s ertions, we do not today a dopt a “ per se rule.” Di s s e n t a t 20, 3 4–35. W e hold only that: (a) in a murder case involving a defendant w ho was fourteen y ears old at the time o f the crime; (b) in which mens

rea was critical g iven the defendant’s absence f rom the crime scene and the prosecution’s f elony murder theory ; (c) where the defendant’s tria l counsel declined to investig ate psy cholog ical testimony because h e f e ared what he mig ht learn; 5 (d) where the onl y ex pert psy cholog ical report in the

5 T h e d i ssen t p o in ts ou t th at W eed en ’ s trial co u n sel h ad “ ex p erien ce”

w ith m u rd er t rials an d “ arg u ab ly ex ecu ted h i s strateg y at trial ef f ectiv ely .” Dissen t at 3 3

. A t issu e, th o u g h
, is n o t h is p r e v i o u s e x p erien ce o r t rialW E E D E N V

. J O H

N S O N 19

post-conviction record concluded that the defendant was “ex tremely unlikely ” to h ave formed the requisite mens rea; 6 and (e) where the state court nonetheless concluded that the d e f e n d a n t r e c e i v e d ef

f e c t i v e a s s i s t a n c e b e c a u s e a psy cholog ical ex amination “mig ht” have undermined counsel’s preselected strateg y , 7 h abeas relief should issue. A contrary conclusion would reduce the Six th A mendment
g uaran t e e of effective representation of c ounsel to mere “sound and fury
, sig nify ing nothing .” W illiam Shakespeare, Macbeth , act 5, sc. 5.

CONCLUSION

W e reverse the judg ment of the district court and remand with instructions to g r ant the writ of habeas corpus u n l e s s W e e den is timely

retried. 8

p erf o rm an ce in g en era l
, bu t rath er h is “ p articu lar d ecisio n n o t to in v estig ate” p sy ch o lo g ical testim o n y

. S trickla n d , 4 6 6 U.S. at 6 9 1

.

6 T h e d issen t’ s sp ecu lativ e su g g estio n th at Dr. P errin e’ s test i m o n y

“ l ik ely w o u ld h av e in v ited th e Go v ern m en t t o call its ow n f o ren sic
p sy ch o lo g ist,” Dissen t at 3 8, is n ot g ro u n d ed in th e reco rd , an d it is w ell settled th at “ w e d o n o t ‘ ev alu ate al l t h e h y p o th etical reaso n s th at co u ld h av e su p p o rted ’ ” a stat e c o u rt’ s reaso n ed d ecisio n

. Cu ero v. Ca te , 8 2 7 F.3 d 8 7 9
, 8 8 4 (9 th Cir. 2 0 16 ) (q u o t in g Ca nn ed y v. Ad a ms , 70 6 F.3 d 1 1 4 8
, 1 1 5 7 (9 th Cir. 2 0 1 3 )).

7 T h e d issen t o f

f ers ad d itio n al p o ssib le j u stif icatio n s f or th e state

co u rt’ s co n clu sio n , in clu din g an arg u m en t th at d ef en s e co u n sel “c o u l d h av e reaso n ab ly b eliev ed th at h is tim e an d av ailab le reso u rces w ere b etter

s p e n t” elsew

h ere. Dissen t at 3 4

. B u t, w e rev iew o n ly th e state c o u r t ’s

reaso n ed d ecisio n

. Cu ero , 8 2 7 F.3 d at 8 8 4

.

8 B ecau se w e co n clu d e th at W eed en ’ s p etitio n sh o u ld b e g ran ted o n th e in ef f ectiv e assista nce o f co u n sel claim
, w e d o n o t reach h er claim of in stru ctio n al erro r.W E E D E N V

. J O H

N S O N 20

CAL L A HAN, Circuit J udg e, dissenting :

There is no deny ing that this case is trag ic: a y oung man’s life was stolen from him, a family was deprived of a son, a nd four y oung people made decisions that will dramatically alter the course of their lives. However, this trag edy is no ex cuse for making bad law, which is ex actly what the majority opinion does. I n its quest to free a 14-y ear-old g irl from the
consequences of a felony murder conviction, the majority disreg ards the substantial deference federal cou r t s owe to both trial c ounsel and state courts, and establishes, in essence,

a per se rule r eg ardin g ex perts that w ill call into question
many constitutionally -sound state convictions. B ecause such action is inconsistent with clearly established Supreme Court precedent and the Antiterrorism and Effective D eath Penalty Act of 1996 (“AEDPA”), I respectfully

dissent.

I. Background

The shooting and law enforcem e nt’s investigation

On A ug ust 5, 2005, 22-y ear-old De o v i n esh Kumar a nd 17-y ear-old Navnil Chand were shot b y 20-y ear-old Sirtice Melonson at a local park, apparently during a b otched robbery

. Chand later died from the wounds he sustained. At the time of the shooting
, Melonson was joined by 16-y ear-old R y a n Moore. Kumar and Chand apparently did not k n o w either Melonson or Moore. However, they did know 14-y earold W eeden, whom they h ad met the previous week when they r an into W eeden, A ng ela G
., and two other teenag e g irls. On the nig ht in question, Kumar and Chand p honed W eeden twenty -nine times—the last call b eing placed just m i nutes before the men were s h o t

. A c cording to Kumar, he a ndW E E D E N V

. J O H

N S O N 21

Chand went to the park to meet one of the teenag e g irls they had met the prior week.

W h i l e W eeden was not near the scene, she had been in

c o mmunication with Moore throug h out the nig ht, includ i n g

u p to twenty minutes before the shooting

. Additionally
, sho r t l y after W eeden received her first call from Chand, W e e den beg an ex chang ing calls with 17-y ear-old J anee Hill, which continued up to and after the shooting

. B esides talking
to Weeden, Hill also spoke telephonically with Moore off a nd

on during the nig ht in questio n

. None of the phone calls between the parties were recorded.

F ollowing the nig ht in q u e s t ion, Moore, at the behest o f law enforcement, se n t W e eden a number of tex t messag e s accusing W eeden of being responsible for t h e s h o o ting

. I n response, W eeden stated: “[ D ] is a i n ’t my fucking fault. Sirtice should [ sic] have done what he did. He broug ht y ou into that by doing that. This shit wasn’t my f ault, s o don’t

even fucking say it was.” W eeden went o n to say : “[ I ]t’s Ang ie’s fucking fault, dummy

. She da o n e that went to the

car and g ave t h e m m y number.” W hen Moore claimed that it was W e eden’s idea to rob the “hindus,” W e e den retorted with,“[ i] t wasn’t my fuckin g idea. I t was Ang ie’s, so shut up.” W h ile W eeden admitted t o M o ore that she knew “Sirtice was g oing to rob [ the men in the car ] ” a n d “that

s o m eo n e [ had] told [ her] to tell [ the men in the car] to me et [ her] at the p ark,” she maintained that “ [ she] didn’t set nuttin’ up.” W eeden also advised Moore that “[ i] f [ he] want[ ed] to g et out of this, [ he would] have to g ive up Ang ie’s name.”

I n addition to the pretex tual t e x t messag es, law enforcement interviewed 14-y ear-old A ng ela G., 14-y ear-old J ohn W
., and Hill, all three of w hom are related to each otherW E E D E N V

. J O H

N S O N 22

and to Moore. Ang ela G

. a p parently s t a t ed that, leading up to the incident, W eeden and Moore had talked about robbing
t he victims. J ohn W

. said that, prior to the shooting
, h e overheard W eeden telling A ng ela G

. that Moore was g oing to rob someone.

As f or Hill, she initially f

o oled the homicide detectives into believing that she w as someone other than who she was,

so the nig ht i n question was n ot discussed during her first
encounter with law enforcement. Hill lied about her identity because she had a traffic warr a n t a nd was a fraid that she would be arrested and t a k e n to juvenile hall if she told the detectives who she was. Eventually
, H ill did speak w ith law enforcement a n u m ber of times about the incident. At f irst, Hill indicated that Moore had n othing to do w ith the shooting and that the only thing W eeden had said to her on the nig ht in question was to call Moore’s phone and a sk “if he was there.” L ater, however, Hill told law enforc e m e n t that Moore h ad said to her a few day s before the shooting that h e was planning to rob someone. Hill also stated that, on the nig ht o f the shooting
, Weeden kept asking Hill to call Moore and p ass along certain messag es, such as w here to g o, how many g uy s he should ex pect to see, a nd what k i n d o f c a r to look for. Despite this, Hill denied k nowing that Melonson, Moore, a nd W e e den were intending to rob the victims because Moore h ad told her during one of h er c alls w ith him that n o robbery was g oing to occur.

Weeden’s trial

I n J anuary 2006, M e lonson, Moore, W eeden, and Hill

were charg ed with first deg ree murder for the death of Chand and attempted murder for t h e s h ooting of Kumar. B ecause Melonson had previously been c o n victed of felony homeW E E D E N V

. J O H

N S O N 23

invasion, he was also c harg ed with being a f elon in possession o f a firearm. L ater, Moore a nd Hill pleaded g uilty
to lesser charg es. I n ex chang e for Hills’ p l e a and testimony

a gainst the co-defendants, the first d eg ree murder a n d attempted murder c harg es ag ainst her were dropped and she

was allowed to plead g ui l ty to an offense that had a confinement cap of four y ears. Prior to trial, the People filed

an a mended information, adding the c harg e of attempted second deg ree robbery

ag ainst Melonson and W eeden.

On October 27, 2 008, the joint tria l f o r Melonson a

nd W e e den b e g an. Among other witnesses, the People called J ohn W

. J o hn W

. initially denied hearing W e eden talk about

a robbery

. However, in an about-face, J ohn W

. later testified

on direct ex amination that h e had heard Ang ie and W eeden planning a robbery

. J ohn W

. went on to say that the g irls h ad asked him to help with the robbery
, but he said no. W hile on the stand, Ang ie G. denied ever hearing any one, including W e e den, talk about a robbery

.

The Peo p le also introduced call log s f rom the nig ht in question. To discuss the content of the phone conversations, the People called Hill. On direct e x amination, Hill deflected the blame from herself and Moore and indicated that W e eden, the y oung est of the four defendants a nd a person who had no criminal backg round, w a s the impetus behind the botched robbery

. Accordin g t o Hill, W eeden initially told h er that

someone ke p t c r a n k calling her a nd that she was g oing to have the person beat up. However, W eeden later a l l e g e dly stated that she w a s going to have Moore rob the boy s w ho

were c rank calling her and that she and Moore were g oing to g et “ weed and money .” Hill claimed that she warned W e e den that “she shou l d n ’t do the r obbery because b ad thing s h appen with robberies.” Hill a lso discussed h owW E E D E N V

. J O H

N S O N 24

W e e den h a d her relay a number o f messag es to Moore that ultimately led Moore and Melonson to the victims’ location.

On cross ex amination, We e den’s trial attorney impeached Hill o n a number of g rounds: ( 1) h er plea ag reement that reduced her possible s en t e n c e from life to 4 y e ars; (2) the multiple lies Hill had told law enforcement when being interviewed about the shooting to protect Moore and herself; and (3) the fact that she h ad initially lied to law enforcement about who she was because she was afraid that she was g oing to be taken to juvenile hall for a traffic warrant.

Durin g W eeden’s case in chief, W eeden’s trial attorney called f o ur character witnesses who stated t h a t Weeden was not the ty p e of person to participate in a robbery

. F ollowing the presentation of the evidence, the jury was instructed that the first deg ree murder charg e was based on a felony murder theory and that the jury could convict W eeden of murder only i f it b elieved that she intended for the victims to be robbed. During closing arg uments, one of W e ede n ’ s trial attorney ’s central themes was that the People had failed to show bey ond

a r easonable doubt that W eeden directed Moor e t o the victims’ car to rob them, as opposed to some other reason, such as to scare them or have them beat up. Seven day s a fter the c lose of the c a s e , the jury found Weeden g uilty of first deg ree felony murder a

nd attempted second degr e e r obbery
, but not g uilty of a t t e mpted murder. 1 W eeden’s sentencing hearing was scheduled for approx imately two months later.

1 In co n trast, Melo n s o n w as co n v icted o f all ch arg es b ro u g h t ag ain st h im tw o d ay s af

ter th e j o in t

trial en d ed

.W E E D E N V

. J O H

N S O N 25

Post-trial

F ollowing the trial, W e e den released her trial a t t orney , who had represented her since at least J anuary 200 6, a nd retained new counsel. At the sentencing hearing
, W ee d e n ’s

new counsel indicated that h e intended to file a num b er o f motions, one of which was a motion f or a new trial based, in part, on the alleg a tion that W eeden’s trial attorney was ineffective for failing to have W eeden ex amined b y a forensic
psy cholog ist. The Superior C o u r t ex pressed skepticism o f W ee d en’s new counsel’s claim of ineffective assistance, stating that the trial attorney ’s performa n ce w as “ex cellent”

a nd “fabulous,” but nevertheless delay ed sentencing and set a hearing on counsel’s motions for the following month.

During the motion hearing
, W eeden’s trial attorney a nd L isa Perrine, Ph.D., a forensic psy cholog ist, testified. W hile

on the stand, W eeden’s trial attorney , w ho was a f ormer assistant district a ttorney that had litig a ted roug hly 100 cases during his 20-y ear career, including at least 10 murder trials, stated that he considered retaining a forensic psy cholog ist, but opted n o t to because he believed such testimony “wouldn’t necessarily h ave bee n h elpful.” Additionally
, he indicated that he believed such testimony could actually be harmful: “if the d octor were to c onclude that [ W e eden] was comp l e t el y immature for instance and – and easy – easily manipulated, my concern would h a v e been that the Prosecutio n w ould h ave used that to show that she didn’t understand pe r h aps the mag n itude of a robbery
, but still participated in it.” W eeden’s trial attorney also noted that he b e l i ev e d t h e w i t n e s s e s t e s t i fy i n g a b o u t W e e d e n ’s

“ i nvolvement and what was said p r ior to the robbery

. . . lacked credibility .”W E E D E N V

. J O H

N S O N 26

Dr. Per rine, w ho met with W eeden for a total o f 7 hours following her conviction, testified that she believed th at W e e den “probably had the understanding of what a robbery

was when she was ag e 1 4,” b u t , because W eeden “misses really important information in h er environment,” she “may
not p ut all the pieces t o gether and understand that a robbery is intended.” W hen initially asked if W eeden “ha[ d] enoug h information that she w as capable o f proces s i n g, t o share the intent with t h e perpetrator that the victim b e robbed,” Dr. Perrine answered, “I don’t k now.” However, after W eeden’s

new cou n sel told her that the co-defendants were older than W e eden, Dr. Perrine seeming ly chang ed her position a n d indicated that W eeden would not necessarily share the codefendants’ intent.

On cross ex amination, Dr. Perrine admitted that, b esides speaking with W eeden, W eeden’s parents, a n d W eeden’s teacher, the only evidence she r eviewed i n f orming her opinions was the presentence report. Thus
, Dr. Perrine did
not read the police reports in the case, the wi t nesses’
statements to law enforcement, the ph o n e records, the tex t messag es ex c h a n g ed between W eeden and Moore, o r the transcript from trial. According to Dr. Perrine, “even if [ she] had reviewed a ll of that information, [ she was] n o t at all sure that it would have made a whole lot of difference.”

I n addition to testimony
, W eeden’s new counsel also produced a declaration from Weed e n a n d an ex pert report from Dr. Perrine. I n her declaration, W eeden stated, a mong other thing s, that she did not know that Moore and Melonson intended to rob the victims

. A s for Dr. Perrine’s report, despite the fact that W eeden had never b een held back in her schooling
, enrolled in a special e ducation class, participate d in outpatient psy chother a p y , or reported any mental healthW E E D E N V

. J O H

N S O N 27

sy mptoms, Dr. Perrine opined that W eeden “ fu n c t i ons intellectually in the low averag e to borderline rang e with 91% of adolescents her ag e functioning at a hig her level.” Dr. Perrine’s report concluded that W eeden could likely comprehend the concept of r o bbery and that someone else intended to commit one, but that “it [ wa] s ex tremely unlikely she would intend to commit r obbery or knowing ly p articipate in one.”

After considering the evid ence in support of W eeden’s motion, a s well as the part i e s ’ b r iefing and oral arg uments, the Sup er i o r Court d enied W eeden’s claim that her trial attorney was ineffective. I t did so based on its findi n g that W e e den had failed to satisfy both p rong s of the Strickland v

. W ashington
, 466 U.S. 668 (1984), t est. Specifically
, the Superior Court found that Weeden’s trial attorney ’s decision
not to employ a f

orensic psy cholog ist was “a sou n d t a c t ical decision” because W e e den’s “intent d[ id] not appear to be at issue since she den[ ied] that she plann e d the robbery o r ag reed to it or had any conversation about it when she set the victim up.” The Superior Court also added that “it d[ id] not appear [ that trial counsel’s decision] ha[ d] been prejudicial in
any event.”

On direct appeal, W e eden’ s n e w counsel ag ain claimed that h i s predecessor was constitutionally ineffective b y “failing to p resent psy cholog ical testimony ” that W eeden was “[ i n ] capable of forming the intent to rob.” People v

. Melonson
, 2013 W L 1987240, at *20 (Cal. Ct. App. May 15, 2013), as m o d i

f ied on denial o

f reh’g (J une 14, 2013). The California Court of Appeal rejected this claim, stating :

W e eden contends trial c o unsel’s decision
not to have her ex am i n ed by a psy cholog istW E E D E N V

. J O H

N S O N 28

was not a sound tacti c a l decision. However,
t r ial c ounsel articulated a very reasonab l e tactical decision for not reque s t ing such an

ex a mination. I f t he ex amination revealed W e ed e n w a s e a s i l y m a n i p u l a t e d
, t h e prosecution could clai m t

h is was evidence that alt h o ug h W eeden did n ot understand the
mag nitude of the robbery
, s h e nonetheless
went along with it. I n es s e n c e, the

ex a mination mig ht u n dermine the defense strateg y trial counsel was pursuing at trial.

I n addition, Weeden arg ues the lack o f
psy cholog i cal testimony on her lack o f specific intent “ undermines confidence in the
outcome of this trial.” According to W e eden, the t e s timony of Dr. Perrine would have

r a i s e d a reasonable d oubt as to whether W e eden harbored a sp ecific intent to rob. Presented with Dr. Perrine’s testimony
, the jury would not have concluded W ee den joined in Melonson’s criminal intent to commit armed robbery

. Ag ain, trial coun s el p ursued the defense that W eeden did n ot set up the robbery o r

a g r ee to it. The testimony W eeden cla i m s counsel w as ineffective in failing to present mig ht well h ave u ndermined this defense. Among D r

. Perrine’s finding s was that W e eden had a strong tendency to be a passive f o l l ower, which mig ht have led the jury to

c o n clude she did not initiate the robbery but
,W E E D E N V

. J O H

N S O N 29

sheep-like, w e nt along with it. W e find no ineffective assistance.

Id. at *21.

The California Supreme Court summaril y denied W e e den’s petition for review. The District Court also denied W e e den’s habeas petition. See W eeden v. Johnson
, 2014 W L 6808778 (E.D. Cal. Nov. 26, 2014).

II. DISCUSSION

A federal habeas petition challeng ing state custody shall be denied “unless the state court’s adjudication of the claim[ ] resulted in a decision that was contrary to, or involv e d a n unreasonable application of, clearly established F ederal law,

as determined by the Supreme Court o f t he United S

tates

. ” 28 U.S.C. § 2254(d)(1) (emphasis add e d )

. “A decision is ‘contrary to’ Supreme Court precedent where ‘the state court arrives at a conclusion o pposite to that reache d b y t h e Supreme Court on a question o f law or if the s tate court decides a case differently than the Supreme Court h as on a set of materially indisting u ishable facts.’” Jones v. Harrington
, 829 F .3d 1128, 1135 (9th Cir. 2016) (alterations in orig inal omitted) (quoting W

illiams v. Taylor
, 529 U.S. 3 62, 413 (2000)). A state court unreasonably a p plies clearly established federal law if it “identifies the correct g overning leg al rule but unreasonably a p p l ies it to the facts of the particular state prisoner’s case.” W hite v. W oodall
, 1 34 S. Ct. 1697, 1 705 ( 2014) ( alteration in orig inal and internal quotation marks omitted). S tate court decisions a re to be measured “ag ainst [ the Supreme Court’s] precedents as of the time the state court renders its decision .” Greene v. Fisher
,W E E D E N V

. J O H

N S O N 30

132 S. Ct. 38, 44 (2 0 1 1 ) ( e mphasis in orig inal) (internal quotation marks omitted).

Here, the majority c o n cludes that the California Court o f Appeal’s finding that W eeden’s trial counsel’s performance

was adequate is “contrary t o , o r involved an unreasonable application of, clearly established Supreme Court law.” Maj. Op. 14–15 (internal quotation marks omitted). To be constitutionally ineffective, an atto rney ’s performance must not only be deficient, but the deficie n c y must a lso be prejudicial. See Strickland
, 466 U.S. at 687. “Surmounting Strickland ’s hig h bar is never a n easy task[ ,] ” P a d i l la v

. Kentucky
, 559 U.S. 3 56, 371 (2010), and is made “doubly ” hard when a federal court is r eviewing a state court’s application of Strickland
, Knowles v. Mirza y a nce , 556 U.S. 11 1
, 123 (2009). H ere, neither the record nor ex isting case l aw support g ranting habeas relief o n ineffective assista n c e g rounds. 2

A. The Calif

ornia Court o f Appeal’s determ inati o n t hat Weeden’s trial attorney’s perf orm ance w a s adequate is not contrary t o nor a n unreasonable application of c l e arly established Suprem e Court law

. According to the majority
, Weeden’s trial a t t o r ney was constitutionally ineffective by failing to h ave a psy cholog ical

ex a mination performed o n W eeden because “W eeden’s mental condition was an essential factor in deciding whether she actually had the required mental s t a t e s f or the [ charg ed]

2 W eed en also seek s h a bea s relief b ased o n t h e S u p erio r Co u rt’ s ref u sal to in stru ct th e j u ry o n Weed en ’ s ag e. A lth o u g h n o t reach ed b y th e

m aj o rity , I w o u ld d en

y relief o n th at g ro u n d as w ell.W E E D E N V

. J O H

N S O N 31

crime.” Maj. Op. 13–14 (internal quotation marks omitted). B u t w h a t S u p r e me Court p recedent mandates this conclusio n ? W h ile the majority is c orrect that an attorn e y has a “duty to

m a ke reasonable investig ations or to make a reason a b l e decision that makes p arti c ular investig ations unnecessary , ” S trickland
, 466 U.S. at 691, we are n ot to frame the i s s u e presented at a “hig h level of g enerality

. ” Lopez v. Smith
, 135 S. Ct. 1, 4 (2014) ( per curiam) (internal quotation marks

om i t t e d). Rather, when d eciding if a decision is c ontrary to established law, we m u st ask if a Supreme Court case addresses “the specific questi o n presented by this case,” W oods v. Donald
, 135 S. Ct. 1372, 1377 (2015) (per curiam), which here is whether a defendan t m u st be psy cholog ically

e x amined f

or the g u ilt phase o f a non-capital case in whi c h competency is not a n i s s u e

. No Supreme Court case has answered this question in the affirmative. T h erefore, the California Court of Appeal’s dete r m i nation that W eeden’s trial c ounsel’s decision n ot to request an ex aminati o n was a very reasonable tactical decision “[ can] not be contrary to any holding from [the Supreme Court] .” I d. ( internal quotation marks omitted).

Additionally
, the Cal i fo rnia Court of Appeal’s determination is not an unreasonable application of Supreme Court precedent. “ Th e Strickland standard is a g eneral one,

so the rang e of reasonable applications is substantial.” Harrington v. Richter
, 562 U.S. 86, 105 (2011)

. F urther, under AEDPA, “the question is n o t whether counsel’s actions

were reasonable,” b u t , rather, “whether there is any reasonable arg ument that counsel satisfied Strickland ’s deferential standard.” Id. a t 1 05. I n other words, “[ t] he state court decision must b e s o l a c k ing in justification that there

was a n error w ell understood and comprehended in ex isting law bey ond any possibility f o r fairminded disag reement.”W E E D E N V

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W oods v. Etherton
, 13 6 S

. C t. 1 1 49, 1151 (2016) (per curiam).

At a minimum, there could be f airminded disag reement about whether W eeden’s trial attorney ’s representatio n was adequate. An attorney provides effective assistance if their representation “does not fall below an objectiv e s t a ndard o f reasonableness in lig ht of prevailing professional norms.” Bobby v. Van Hook
, 558 U.S. 4, 7 (2009) (per curiam). Prevailing professional norms a r e ty pically distilled from standards d eveloped b y the A merican B ar Association (“AB A”). See W

igg i n s v. Smith
, 539 U.S. 510, 524 (2003) (noting that t h e Supreme Court has long referred to AB A standards as “g ui d es to determining w hat is reasonable” (internal quotation marks omitted)). The Criminal J u stice Standards f

or the Defense F unction published by the AB A do
not mention, much less require, psy cholog ical evaluations in non-capital cases, which is unlike what the A B A has said in the capital contex t. See AB A’s G uide lines for the Appointment a

nd Performance o f Defense Counsel in Death Penalty Cases, Guideline 4.1.A.1-2 ( r e v

. ed. 2003) (stating that a capital-defense team “should c ontain at l e as t o ne member qualified by training and ex pe r i e nce to screen individuals f

or the presence of mental or psy cholog ical disorders o r impairments”). Thus
, t h e California Court o f Appeal’s determination that W eeden’s trial attorney was effective is not inconsistent with any then-ex i s t i ng professional norm.

W h at’s more, a fairminded judg e, consideri ng all of the circumstances in this case, could believe that W eeden’s trial attorney ’s d ecision n ot to have W eeden e x amined was sound. W hen trial beg an, W eeden’s trial attorney had repres en t e d W e e den for over two and a half y ears. Thus, the attorney h adW E E D E N V

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sufficient time t o f

a miliariz e h imself with the case a nd his client a nd to f ormulate a defense s t r a teg y

. F urther, a fter litig ating approx imate l y 1 00 cases, including at least 10

mu r d er trials, W eeden’s trial attorney h a d the ex perience to make sound d e fense strateg ies. L ast, W e eden’s trial attorney arg uably ex e cuted his s t r a t e g y at trial effectively because W e e den was acquitted of a serious offense—attempted murder—and the Superior Court d escribed the trial attorney ’s performan c e as “ex cellent” and “fabulous.” As a r esult, reasonable minds could well b elieve that W eeden’s tr ial attorney was effective.

The majority ’s c o nclu s i on to the contrary is based o n an incomplete reading of Ha r r i n g t on v. Richter
, 562 U.S. 86 (2011). F irst, while the Harringt o n c ourt d id state that “[ c] riminal cases w ill arise where the onl y reasonable a nd available defense strateg y requir e s c o n s u l t a t ion with ex perts,” it qualified this observation by indicating that such cases a re “[ r] are.” 562 U.S. at 106. This case is not o ne of those rare

cases w her e t h e evidence ag a inst the defendant was so overwhelming or pointed so strong ly in one direction that the only reasonable d efense a v ailable was one that incorporated
psy cholog ical evidence. W eeden was not at the scene, there

was no phy sical evidence directly ty ing W eeden t o t he

c h a r g ed crimes, all of the co-defendants were older, a nd W e e den had no criminal r e cord. Plus, the People’s case heavily relied upon stateme n t s made by co-defendants o r relatives of the co-defendants, all of whom h a d made inconsistent statements. Thu s , e ach statement made by the People’s k ey w itnesses was challeng eable on the g round that its declarant was biased and/or untrustworthy

. A c cording ly
, this case is one where a r easonable a ttorney could choose to base his defense on the theory that the People’s evidence was insufficient to meet reasonable doubt’s string e nt requirement,W E E D E N V

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as oppo sed to g rasping for straws a n d claiming that his competent cl i e n t somehow lacked the ability to f orm the requisite intent. See id. at 109 (“To support a d efense
arg ument that the prosecution has n ot proved its c a s e it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that ex onerates.”).

Second, the majority ’ s r e ading of Harrington overlooks the case’s holding that an attorney d o e s n ot have to consult with every ex p ert “whose insi gh t mig ht possibly have been useful.” I

d. at 107. “An a ttorney can avoid act i v i t i e s that
appear distractive from more important duties.” Id. (internal quotation marks omitted). F u rther, an attorney ’s “attention to certain issues to the ex clusion of o thers” is “strong [ ly ] presum[ ed] ” to reflect a “trial tactic[ ] ra t h e r than sheer
neg lect.” Id. at 109 (internal quotation marks omitted).

Here, W eed en ’s trial attorney could have reasonably believed that his time and available re s o u r ces were better spent on the d efense theory that W e eden wa s u naware that Melonson and Moore intended to rob the victims than on the theory that she was incapable of intending for someone to be rob b e d

. T h e former theory w as not a clear loser, a s evidenced by the jury ’s partial acquittal. W h ile the majority
may h ave taken a different approach, “[ r ] eliance on the harsh lig ht of hindsig ht to cast d oubt on a trial that took place n ow

more th an [ 8] y ears ag o is precisely what Strickland a nd AEDPA seek to prevent.” Id. ( internal quotation marks omitted).

At bottom, the majority ’ s determination that W eeden is entitled to habeas relief can only be justified if there is a per

se rule that a defense attorney must seek a psy cholo g i c al evaluat i o n w h enever his or her client arg uably has someW E E D E N V

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m e n tal impairment, r eg a rdless of w hether the attorn e y believes suc h a

n evaluation will be valuable to the defense. However, no Supreme Court precedent e stablishes such a per

se rule. I n fact, such precedent indicates that t h e r e are few, if any , per se rules in the ineffective assistance co unsel
contex t: “[ r] a

re are the situations in which the wide la t i tude counsel must have in making tactical decisions will be limited in any o n e technique or approach.” Harrington , 562 U.S. at 106 (internal quotation mark s o m i tted). As a result, the majority errs in holding that California Court of Appeal acted contrary to or u nreasonably applied established Supreme Court precedent by finding W eeden’s trial attorney ’s performance adequate.

B. Even if Weeden’s trial attorney’s p e r fo r m a n c e was constitu t ionally def

icient, Weeden w as not prejudiced.

Realiz ing that it cannot clear the hig h hurdle AEDPA sets for the Strickland prejudice prong , the majority attempts an end-run around it by claiming that AEDPA deference d o e s not apply in this case because the California Court of Appeal did not a ddress prejudice. Maj. Op

. 1 5

. However, this is simply not true. F ar from pretermitting the analy sis, the California Court o f Appeal identified a specific harm that could have occurred had W eeden’s t r i al attorney introduced testimony from a forensic psy cholog ist: “Dr. Perr ine’s finding [ ] was that W eeden had a s trong tendency to be a passive f oll o w e r, which mig ht have led the jury to conclude she did not initiate the robbery but, sheep-like, we n t along with it.” Melonson
, 2 0 13 W L 1987240, at * 21. While the majority may disag ree with the California Court of Appeal’s

a ssessment, this disag reement does not chang e the fact thatW E E D E N V

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the state c ourt d id address the issue and that its determination is entitled to deference.

As f or the majority ’s claim that the California Co u r t o f Appeal applied the wrong leg a l standard, Maj. Op. 16–18, it
too does not hold water. L e ading up to its prejudice analy sis, the Court of A ppeal c o rrectly identified the g o v e rning leg al standard—reasonable probability

. See M elo n son , 2013 W L 1987240, at *21 (stating that the defendant must show that “it is reasonably probable that a m o re favorable result would have been reached a

bsent the deficient performance”). F urthermore, the Court of Appeal recited W eeden’s arg ument for why the reasonable p robability standard wa s met in her case—the l a c k of p sy cholog ical evidence “undermine[ d] confidence in the out come of th[ e] trial.” Id. Ag ainst this backdrop, the Court of Appeal’s observation that W eeden’s
psy cholog ical evidence “mig ht have” actua l l y hurt her case had it been offered does not indicate that it applied the wrong leg al standard. W hile the majority may prefer that the Court of Appeal had offered a more complete written analy sis for its no-prejudice finding
, the fact that i t d id not does not mean that its finding should receive any less d eferen ce

. See Johnson v. W

illiams
, 133 S. Ct. 1088, 1 095–96 ( 2013) (“The caseloads shouldered by many state appellate courts are very heavy
, and the opinions i s sued b y these courts must be read with that factor in mind.” (internal footnote omitted)).

Nonetheless, even if the majority were correct that w e a re to apply de novo review to the p rejudice prong in this ca s e, habeas relief should still be denied. Relief is w arranted only if the trial attorney ’s errors are “so serious as to depriv e the defendant of a fair tria l
, a t r i al whose result is reliable.” Harrington
, 562 U.S. at 104. “The li k e l i h o o d of a different result must be substantial, not just conceivable.” Id. at 112.W E E D E N V

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To say the least, the utility of calling a f o r en s i c psy cholog ist to discuss W eeden’s a ge, maturity
, o r intellig ence is q

uestionable. T o beg in with, the psy cholog ical evidence offered by W eeden’s new counsel was weak. A s noted in Dr. Perrine’s r ep o r t , W e eden had never been h eld back in her schooling
, enrolled in a special education c lass, participated in outpatient psy chotherapy
, or reported any mental health sy

mptoms. F u rthermore, Dr. P e r r i n e ’ s o p i n ions

were base d o n i ncomplete information. F or instance, Dr. Perrine h a d not r e v i e wed the tex ts ex chang ed b etween W e e den and Moore following the shooting
, which demonstrated that W eeden was no shrinking v iolet and was capable of try ing to d irect others’ a c t ivities—e.g

. , advising Moore that “ [ i] f [ he] want[ e d ] to g et out of this, [ he w ould] have to g ive up An gi e ’ s name.” Also, Dr. Perrine was

unaware of Hill’s alleg ed warning to W eeden just p rior to the shooting n ot to participate in the robbery because it could g o bad.

F urther diminishing the value of psy cholog ical evidence in this case is the f

act that, even w ithout it, the jury already had the information necessary to d e t e r mine, if it w anted to, that W eeden lacked the requisi t e mental condition to intend

a robbery

. The jury was aware of W ee den’s ag e at the time

o f the shooting and was instructed that it could use its “common sense and ex perie n c e” when evaluating the evidence. Thus, this case is f u n d a m entally different from those where the Supreme Court h as found that an attorney ’s failure to investig ate p rejudiced the defendant. See, e. g. , W iggins
, 5 39 U.S. at 534–35 (finding that the capital-murder defendant had been prej u d i ced during sentencing by his attorney ’s failure to uncover evidence that the defendant h ad “ex p e rienced severe privation and abuse in the f irst six y ears of his life” and had been “ phy sical[ ly ] torment[ e d]
, sex ual[ ly ]W E E D E N V

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m olest[ ed]
, and repeated[ ly ] r ape[ d] d uring his subsequen t y ears in foster care”).

I n a ddition to p sy cholo gi c a l evidence adding little value
to the defense, it mig h t well have b een harmful. As noted b y the California Court of Appeal, a psy cholog ist’s tes timony would have been susceptible to being usurped by the
prosec u t or, as it could be manipulated to establish that W e e den’s ag e made her more likely to eng ag e in or g o along with risky or illeg a l b e h av ior. A dditionally
, it likely would have invited the Government t o c a ll its own forensic
psy cholog ist and “ transform the c a s e into a battle of the

ex p erts.” Harrington
, 562 U.S. a t 108–09. I n lig ht of the tex t messag es between W eeden and Moore, as well as the fact that W e e den had never been h e l d b ack in her schooling o r reported any mental health sy m p t o m s, shifting the jury ’s focus from whether W eeden intende d f o r the victims to be robbed to w hether she had ability to intend a robbery likely would not have been in W eeden’s best interest.

Conclusion

The majority ’s apparent d e sire to save Sarah W eeden from the consequences of her f elony murder conviction is

u nderstandable—the result it reaches under AEDPA is not. W h ile the majority may disag ree w i t h California’s decision
to allow for the a d ult p rosecution of 14-y ear-olds, nothing
pr o h i bits the State from adopting such a policy

. W hat W e e den was entitled to under the law—a fair trial a nd competent c ounsel—she received. To be sure, it would be nice to mag ically u ndo Weeden’s decisio n to lure two unsuspecting victims into what proved to be a death t rap. U n fortunately
, we are federal judg es, not mag icians, and no do-over of the nig ht in question is forthcoming . As a result,W E E D E N V

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what we are stuck with is a conviction that has been reviewed and upheld by the California Court of Appeal

. T h e state court’s determinati o n is neither contrary to nor an unreasonable applicatio n of Supreme Court precedent, and, thus, there is no basis to a ff o r d W eeden habeas relief. B ecause the majority opinion reaches the opposite conclusion, I

respectfully

dissent.