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Weeden v. Johnson

United States Court of Appeals, Ninth Circuit

April 21, 2017

Sarah Weeden, Petitioner-Appellant,
v.
Deborah K. Johnson, Respondent-Appellee.

          Argued and Submitted October 18, 2016 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California, D.C. No. 2:13-cv-02667-JKS James K. Singleton, District Judge, Presiding

          Charles M. Bonneau, Jr. (argued), Sacramento, California, for Petitioner-Appellant.

          Christina Hitomi Simpson (argued), Deputy Attorney General; Eric L. Christoffersen, Supervising Deputy Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.

          Before: Consuelo M. Callahan and Andrew D. Hurwitz, Circuit Judges, and Donald W. Molloy, [*] District Judge.

         SUMMARY[**]

         Habeas Corpus

         The panel reversed the district court's denial of Sarah Weeden's habeas corpus petition challenging her California felony-murder conviction for her role in a bungled robbery that occurred when she was fourteen, and remanded for issuance of the writ.

         Weeden claimed that her trial counsel provided ineffective assistance by failing to seek a psychological evaluation about the effect of her youth on her mental state. The panel held that the California Court of Appeal's finding that counsel rendered adequate performance because he made a tactical decision not to investigate was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. The panel wrote that under Strickland v. Washington, counsel's investigation must determine trial strategy, not the other way around; and that Weeden's counsel could not have reasonably concluded that obtaining a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal.

         The panel held that had counsel presented to the jury the opinion of Dr. Lisa Perrine, Ph.D., a psychologist who evaluated Weeden after the verdict, the probability of a different result is sufficient to undermine confidence in the outcome, and that counsel's deficient performance therefore requires issuance of the writ.

         Dissenting, Judge Callahan wrote that the majority disregards the substantial deference federal courts owe to both trial counsel and state courts, and establishes, in essence, a per se rule regarding experts that will call into question many constitutionally-sound state convictions.

          OPINION

          HURWITZ, Circuit Judge:

         Sarah Weeden was convicted in California state court of felony murder and sentenced to twenty-nine years to life in prison for her role in a bungled robbery that occurred when she was fourteen. She was not present at the scene of the crime; the prosecution's case rested on evidence of her role in planning and facilitating the robbery.

         Weeden's defense at trial consisted entirely of four character witnesses. Trial counsel did not seek an evaluation by a psychologist or present expert testimony about the effect of Weeden's youth on her mental state. In post-trial proceedings, counsel claimed that he did not obtain an evaluation because the result might not support his defense strategy.

         In a 28 U.S.C. § 2254 habeas corpus petition, Weeden claimed that her trial counsel provided constitutionally ineffective assistance of counsel. The state courts rejected this claim, finding that counsel's refusal to investigate psychological testimony was a reasonable strategic decision. The district court denied habeas relief; we reverse and order the district court to issue the writ.

         BACKGROUND

         A. Underlying Facts and Trial

         In July 2005, Weeden and three other fourteen-year-old girls were walking down the street when a car approached.[1]Inside were four boys, including twenty-two-year-old Deovinesh Kumar and seventeen-year-old Navnil Chand. Kumar invited the girls to "party, " promising beer and "weed." The girls declined, but one of them, Angela, gave the boys Weeden's cell phone number. Later that night, Weeden and Angela met with two of their friends, fourteen-year-old John W. and sixteen-year-old Ryan Moore. Weeden told them about the interaction with Kumar and Chand. Moore suggested robbing them; Weeden replied "yeah, we should."

         Days later, Weeden told Angela that the robbery would take place at a park. Weeden asked John to participate, but he refused. Moore told John's cousin, Janee Hill, of a plan to rob some "East Indian boys" for "weed and money."

         On August 5, Weeden told Hill that the boys she met had been "crank calling" her and inviting her to a motel. Weeden told Hill that Moore was going to rob the boys. Hill warned that robberies can go wrong; Weeden responded "okay."

         That evening, after calling Weeden, Chand told Kumar that the girls they had encountered in July would meet them at a park. Kumar drove to the park. While waiting in the car, Chand spoke on the phone to a girl who said, "I'll be there in two to three minutes." Chand replied, "I'm waiting for you over here by the park."

         At the same time, Moore was with twenty-year-old Sirtice Melonson at a nearby park. Moore was on the phone with Hill, who in turn used a second phone to talk to Weeden. Weeden told Hill to ask Moore whether he saw the boys' car; Moore said no. Weeden directed Moore to a different park, where Moore saw a gold car. Weeden said "that's them."

         Melonson approached the car, stuck a handgun in the window, and ordered Kumar and Chand to exit. Before they could comply, the gun went off. Kumar sped off amid further gunfire. Chand later died of a gunshot wound.

         Phone records from that evening confirm that: (1) Chand called Weeden repeatedly until the shooting, (2) Weeden and Moore exchanged calls until approximately twenty minutes before the shooting, (3) Weeden 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, Weeden sent text messages to Moore acknowledging that she knew about the robbery plan in advance but denying that it was her idea.

         The only defense evidence at trial came from four character witnesses; each testified that Weeden was not the sort of person who would plan a robbery. In closing argument, Weeden's counsel asserted that Melonson decided to commit the robbery without Weeden's knowledge. He also urged the jury to consider Weeden's age and manipulability:

Try to put glasses on of a 14-year-old girl. . . . You're easily manipulated. . . . But the Prosecution wants to charge her as an adult, under adult standards. But you can take into consideration, put on those glasses of a 14-year-old girl and tee, hee, hee, older boys want to talk to me and what should I do and let's send 'em on a wild good [sic] chase. That's a 14-year-old girl, it just is, and you get to put those glasses on. And it's [sic] easily manipulated by older people when she stepped into this mess of vipers. And blaming her for this is like blaming a child molest [sic] victim. She's 14. She don't [sic] know what she's doing. She gets manipulated into sending these boys out to get stood up.

         The jury found Weeden guilty of attempted robbery and first-degree felony murder, but acquitted her of attempted murder. Weeden was sentenced to twenty-nine years to life in prison.

         B. The New Trial Motion

         Represented by new counsel, Weeden moved for a new trial, claiming that her trial counsel was ineffective for failing to investigate or present psychological evidence. In support of the motion, Weeden submitted a psychological report from Lisa Perrine, Ph.D., who evaluated Weeden after the verdict. Dr. Perrine opined that although Weeden could comprehend the concept of robbery, "it is extremely unlikely she would intend to commit robbery or knowingly participate in one, " and "she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated." Dr. Perrine also found Weeden to be "quite passive and vulnerable to being manipulated by others, " and concluded she had "serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level), " "well below average language skills, " and "a strong tendency to miss important environmental cues."

         Weeden's trial counsel stated in a declaration that he did not investigate psychological testimony because he "did not consider a psychologist's opinion to be relevant to the issues in this prosecution." At an evidentiary hearing, trial counsel admitted that he had "contemplated" seeking a psychological evaluation, but did not do so because "regardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth." Counsel also speculated the prosecution might have used the results of an examination against Weeden:

Q: You didn't know what the doctor would conclude, though. Is that right?
A: No, that is true. That is true. But - for instance, if the doctor were to conclude that she was completely immature for instance and - and easy - easily manipulated, my concern would have been that the Prosecution would have used that to show that she didn't understand perhaps the magnitude of a robbery, but still participated in it. So I had some concerns that that could be twisted and turned against her.

         The state trial court denied the new trial motion, characterizing counsel's failure to obtain a psychological examination as a "sound tactical decision."

         C. Direct Appeal

         The California Court of Appeal affirmed Weeden's conviction. The court disposed of Weeden's ineffective assistance claim in four paragraphs. The first paragraph recited the familiar legal standard for establishing ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687-688 (1984). People v. Melonson, Nos. C061352, C061800, 2013 WL 1987240, at *21 (Cal.Ct.App. May 15, 2013), as modified on denial of reh'g (June 14, 2013). The second paragraph concluded that counsel made a "reasonable tactical decision" not to seek a psychological examination because an examination "might undermine" his trial strategy:

Weeden contends trial counsel's decision not to have her examined by a psychologist was not a sound tactical decision. However, trial counsel articulated a very reasonable tactical decision for not requesting such an examination. If the examination revealed Weeden was easily manipulated, the prosecution could claim this was evidence that although Weeden did not understand the magnitude of the robbery, she nonetheless went along with it. In essence, the examination might undermine the defense strategy trial counsel was pursuing at trial.

Id. The third paragraph acknowledged Weeden's argument that Dr. Perrine's testimony might have made a difference at trial, but, rather than determining whether the failure to present that testimony was prejudicial, the fourth paragraph reiterated the risk that such testimony "might well have undermined" counsel's trial strategy:

In addition, Weeden argues the lack of psychological testimony on her lack of specific intent 'undermines confidence in the outcome of this trial.' According to Weeden, the testimony of Dr. Perrine would have raised a reasonable doubt as to whether Weeden harbored a specific intent to rob. Presented with Dr. Perrine's testimony, the jury would ...

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