and Submitted October 18, 2016 San Francisco, California
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
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
Before: Consuelo M. Callahan and Andrew D. Hurwitz, Circuit
Judges, and Donald W. Molloy, [*] District Judge.
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.
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
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.
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.
HURWITZ, Circuit Judge:
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.
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
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.
Underlying Facts and Trial
2005, Weeden and three other fourteen-year-old girls were
walking down the street when a car approached.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."
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
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
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."
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."
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.
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.
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.
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
New Trial Motion
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."
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.
state trial court denied the new trial motion, characterizing
counsel's failure to obtain a psychological examination
as a "sound tactical decision."
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
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 ...