Sarah Weeden v. Deborah Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH WEEDEN, No. 14-17366

Petitioner-Appellant,

D.C. No.

v. 2:13-cv-02667-JKS

DEBORAH K. JOHNSON,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Eastern District of California

James K. Singleton, District Judge, Presiding

Argued and Submitted October 18, 2016

San Francisco, California

Filed April 21, 2017

Before: Consuelo M. Callahan and Andrew D. Hurwitz,

Circuit Judges, and Donald W. Molloy,* District Judge.

Opinion by Judge Hurwitz;

Dissent by Judge Callahan

*

The Honorable Donald W. Molloy, United States District Judge for

the District of Montana, sitting by designation.

2 WEEDEN V. JOHNSON

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

**

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

been prepared by court staff for the convenience of the reader.

WEEDEN V. JOHNSON 3

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.

COUNSEL

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.

4 WEEDEN V. JOHNSON

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.

WEEDEN V. JOHNSON 5

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

1

We rely on the California Court of Appeal’s recitation of the

evidence. See People v. Melonson, Nos. C061352, C061800, 2013 WL

1987240, at *1–11 (Cal. Ct. App. May 15, 2013), as modified on denial

of reh’g (June 14, 2013).

6 WEEDEN V. JOHNSON

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:

WEEDEN V. JOHNSON 7

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

8 WEEDEN V. JOHNSON

“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.

WEEDEN V. JOHNSON 9

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.

10 WEEDEN V. JOHNSON

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 not have concluded Weeden joined

in Melonson’s criminal intent to commit

armed robbery.

Again, trial counsel pursued the defense

that Weeden did not set up the robbery or

agree to it. The testimony Weeden claims

counsel was ineffective in failing to present

might well have undermined this defense.

Among Dr. Perrine’s findings was that

Weeden had a strong tendency to be a passive

follower, which might have led the jury to

conclude she did not initiate the robbery but,

sheep-like, went along with it. We find no

ineffective assistance.

Id.

WEEDEN V. JOHNSON 11

The California Supreme Court summarily denied

Weeden’s petition for review.

D. Federal Habeas Petition

Weeden then filed a 28 U.S.C. § 2254 habeas corpus

petition in the United States District Court for the Eastern

District of California. That court denied the petition and

declined to issue a certificate of appealability. Weeden v.

Johnson, No. 2:13-CV-02667-JKS, 2014 WL 6808778, at

*16–18, *27 (E.D. Cal. Nov. 26, 2014). A panel of this court

granted a certificate of appealability. We have jurisdiction of

Weeden’s appeal under 28 U.S.C. § 1291 and § 2253(a).

DISCUSSION

We review the district court’s denial of Weeden’s habeas

corpus petition de novo. Lambert v. Blodgett, 393 F.3d 943,

964 (9th Cir. 2004). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), habeas relief may not

be granted “with respect to any claim that was adjudicated on

the merits in State court proceedings” unless the state

decision was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” or (2) “based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). We apply AEDPA’s standards to “the state

court’s ‘last reasoned decision’ on the claim,” in this case the

decision of the California Court of Appeal. Edwards v.

Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)

(quoting Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)).

12 WEEDEN V. JOHNSON

A. Deficient Performance

Under the two-pronged framework of Strickland, the

Sixth Amendment guarantee of counsel in a criminal

proceeding is violated if “counsel’s performance was

deficient” and “the deficient performance prejudiced the

defense.” 466 U.S. at 687. Our review of the Court of

Appeal’s holding that Weeden’s counsel was not deficient is

“doubly” deferential, because Strickland requires state courts

to give deference to choices made by counsel and AEDPA in

turn requires us to defer to the determinations of state courts.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

Even under this demanding standard of review, we

conclude that the Court of Appeal’s conclusion that Weeden’s

trial counsel provided effective representation was “contrary

to, or involved an unreasonable application of,” clearly

established Supreme Court law. 28 U.S.C. § 2254(d)(1). The

Supreme Court has repeatedly made plain that counsel has the

“duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691; Kimmelman v.

Morrison, 477 U.S. 365, 384 (1986); Wiggins v. Smith, 539

U.S. 510, 521 (2003); Hinton v. Alabama, 134 S. Ct. 1081,

1088 (2014).

The Court of Appeal did not identify any “reasonable

decision” made by Weeden’s trial counsel that rendered an

investigation of psychological evidence “unnecessary.”

Strickland, 466 U.S. at 691. Instead, it concluded that the

choice not to investigate psychological evidence was a sound

“tactical decision” because counsel feared that the results of

an expert evaluation might undermine his trial strategy.

WEEDEN V. JOHNSON 13

Melonson, 2013 WL 1987240, at *21. But that analysis “puts

the cart before the horse.” Bemore v. Chappell, 788 F.3d

1151, 1167 (9th Cir. 2015), cert. denied sub nom. Davis v.

Bemore, 136 S. Ct. 1173 (2016). Counsel cannot justify a

failure to investigate simply by invoking strategy. The

Supreme Court has squarely rejected the “attempt to justify

[a] limited investigation as reflecting a tactical judgment.”

Wiggins, 539 U.S. at 521; see also Williams v. Taylor, 529

U.S. 362, 396 (2000) (failure to uncover mitigating evidence

was “not justified by a tactical decision” where counsel “did

not fulfill their obligation to conduct a thorough investigation

of the defendant’s background”). Under Strickland, counsel’s

investigation must determine trial strategy, not the other way

around. E.g., Bemore, 788 F.3d at 1166–67; Reynoso v.

Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006); Phillips v.

Woodford, 267 F.3d 966, 978 (9th Cir. 2001). 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. Equally unpersuasive was counsel’s

conclusion that the prosecution could have used the results of

an examination against Weeden. While a defendant must

disclose expert reports she intends to rely on at trial, Cal.

Penal Code § 1054.3(a), simply procuring a report does not

mean it must be produced, Sandeffer v. Super. Ct., 22 Cal.

Rptr. 2d 261, 264 (Ct. App. 1993); Hines v. Super. Ct., 25

Cal. Rptr. 2d 712, 715 (Ct. App. 1993).

The correct inquiry is not whether psychological evidence

would have supported a preconceived trial strategy, but

whether Weeden’s counsel had a duty to investigate such

evidence in order to form a trial strategy, considering “all the

circumstances.” Strickland, 466 U.S. at 691. The answer is

yes. The prosecution’s felony murder theory required proof

14 WEEDEN V. JOHNSON

that Weeden had “specific intent to commit the underlying

felony,” People v. Jones, 98 Cal. Rptr 2d. 724, 727 (Ct. App.

2000), so Weeden’s “mental condition” was an essential

factor in deciding whether she “actually had the required

mental states for the crime,” People v. Steele, 47 P.3d 225,

240 (Cal. 2002). The Supreme Court has repeatedly noted

that the mind of a fourteen-year-old is markedly less

developed than that of an 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. 551,

569–70 (2005), and trial counsel described Weeden as

“unusually immature.”2 Given the exculpatory potential of

psychological evidence, counsel’s failure to investigate

“ignored pertinent avenues for investigation of which he

should have been aware.” Porter v. McCollum, 558 U.S. 30,

40 (2009).

Counsel’s performance was deficient because he failed to

investigate, a failure highlighted by his later unreasonable

justification for it. We do not suggest that counsel must

investigate psychological evidence in every case, or even the

ordinary case. But the Supreme Court has made clear that

some “[c]riminal cases will arise where the only reasonable

and available defense strategy requires consultation with

experts.” Harrington, 562 U.S. at 106. For the reasons noted

above, this was such a case. The Court of Appeal’s finding

that counsel rendered adequate performance because he made

a tactical decision not to investigate was therefore “contrary

2

Moreover, several witnesses heard Weeden talking about the

robbery in advance, rendering counsel’s argument that Weeden was

ignorant of the robbery plan quite weak. See Bemore, 788 F.3d at 1167

(counsel’s duty to investigate mental health defense was “especially

critical” where “the weaknesses of an alibi should have been known”).

WEEDEN V. JOHNSON 15

to, or involved an unreasonable application of,” clearly

established Supreme Court law. 28 U.S.C. § 2254(d)(1).

B. Prejudice

Counsel’s deficient performance justifies relief only if

there is a “reasonable probability” that the jury would have

reached a different result if adequate representation had been

afforded. Strickland, 466 U.S. at 694. A reasonable

probability is one “sufficient to undermine confidence in the

outcome.” Id. Although counsel’s deficient performance

must have had more than a “conceivable effect” on the

outcome, it need not have “more likely than not altered” the

outcome. Id. at 693. 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.” Wiggins, 539 U.S. at 537.3

Had the California Court of Appeal found that trial

counsel’s performance, even if deficient, did not meet the

Strickland “reasonable probability” standard, we would of

course be required to afford that determination AEDPA

deference. But the Court of Appeal made no such

determination. Although the state court acknowledged

Weeden’s argument about prejudice, it pretermitted that

point, simply reiterating its previous conclusion that

counsel’s performance was not deficient:

3

“The Strickland prejudice analysis is complete in itself; there is no

place for an additional harmless-error review.” Avila v. Galaza, 297 F.3d

911, 918 n.7 (9th Cir. 2002) (alteration omitted) (quoting Jackson v.

Calderon, 211 F.3d 1148, 1154 n.2 (9th Cir. 2000)).

16 WEEDEN V. JOHNSON

Weeden argues the lack of psychological

testimony on her lack of specific intent

‘undermines confidence in the outcome of this

trial.’ . . .

Again, trial counsel pursued the defense

that Weeden did not set up the robbery or

agree to it. The testimony Weeden claims

counsel was ineffective in failing to present

might well have undermined this defense.

Among Dr. Perrine’s findings was that

Weeden had a strong tendency to be a passive

follower, which might have led the jury to

conclude she did not initiate the robbery but,

sheep-like, went along with it. We find no

ineffective assistance.

Melonson, 2013 WL 1987240, at *21. Because the Court of

Appeal did not reach the issue of prejudice, we address the

issue de novo. Rompilla v. Beard, 545 U.S. 374, 390 (2005)

(examining prejudice de novo where state court did not reach

the issue); Wiggins, 539 U.S. at 534 (same); see also Porter,

558 U.S. at 39 (examining deficient performance de novo

where state court did not reach the issue); Miles v. Ryan, 713

F.3d 477, 489–90 (9th Cir. 2013) (same).

Even assuming, as the dissent suggests, that the Court of

Appeal reached the prejudice issue by speculating that Dr.

Perrine’s testimony “might have” led the jury to the same

result, Dissent at 35, the state court then plainly applied the

wrong legal standard. Strickland asks whether there is a

“reasonable probability” of a different result, not whether the

jury “might have” reached the same result. 466 U.S. at 694.

And, when the state court applies an incorrect standard, our

WEEDEN V. JOHNSON 17

prejudice analysis is “unconstrained” by AEDPA deference.

Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

After evaluating Weeden, Dr. Perrine concluded that “it

is extremely unlikely she would intend to commit robbery or

knowingly participate in one,” that “she would probably be

slow to understand that a robbery was being considered by

others if their intentions were not clearly articulated,” and

that she was “quite passive and vulnerable to being

manipulated by others.” This testimony from a qualified

expert “would have added an entirely new dimension to the

jury’s assessment” of the critical issue of Weeden’s mens rea.

Vega v. Ryan, 757 F.3d 960, 974 (9th Cir. 2014) (quoting

United States v. Kohring, 637 F.3d 895, 905–06 (9th Cir.

2010)). Weeden was not at the crime scene and did not

personally commit either the robbery or the murder. The

state’s evidence of her intent was therefore presented through

testimony by others about what she said and text messages

sent months after the events at issue. That evidence did not

offer the kind of critical insight into the effect of Weeden’s

youth on her mental state that Dr. Perrine’s conclusions

provided.4 Moreover, although the jury found Weeden guilty

of attempted robbery and first-degree felony murder, she was

acquitted of attempted murder. This fragmented verdict is an

“additional indicator of prejudice.” Vega, 757 F.3d at 974.

The state surmises that, if Dr. Perrine had testified, it

would have presented rebuttal evidence. But the record

contains no such evidence. In determining how omitted

evidence would have altered the trial, “we may not invent

4

Although Weeden’s counsel urged the jury to consider her age and

manipulability in his closing argument, the jury had scant evidentiary

basis on which to do so in the absence of expert testimony.

18 WEEDEN V. JOHNSON

arguments the prosecution could have made.” Hardy v.

Chappell, 832 F.3d 1128, 1141 (9th Cir. 2016). The state

also speculates that the jury would have assigned little weight

to Dr. Perrine’s testimony, because her conclusions were

based on interviews conducted years after the offense. While

that criticism may support a line of cross-examination at

retrial, Dr. Perrine’s testimony is uncontradicted on the

record before us, and is directly probative of a critical

element in the case, Weeden’s mens rea.

Considering all the circumstances of this case, we

conclude that, had Dr. Perrine’s opinion been presented to the

jury, the probability of a different result is “sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S.

at 694. Counsel’s deficient performance therefore requires

issuance of the writ.

C. The Dissent

We add a brief rejoinder to the concerns of our dissenting

colleague. Contrary to her repeated assertions, we do not

today adopt a “per se rule.” Dissent at 20, 34–35. We hold

only that: (a) in a murder case involving a defendant who was

fourteen years old at the time of the crime; (b) in which mens

rea was critical given the defendant’s absence from the crime

scene and the prosecution’s felony murder theory; (c) where

the defendant’s trial counsel declined to investigate

psychological testimony because he feared what he might

learn;5 (d) where the only expert psychological report in the

5

The dissent points out that Weeden’s trial counsel had “experience”

with murder trials and “arguably executed his strategy at trial effectively.”

Dissent at 33. At issue, though, is not his previous experience or trial

WEEDEN V. JOHNSON 19

post-conviction record concluded that the defendant was

“extremely unlikely” to have formed the requisite mens rea;6

and (e) where the state court nonetheless concluded that the

defendant received effective assistance because a

psychological examination “might” have undermined

counsel’s preselected strategy,7 habeas relief should issue. A

contrary conclusion would reduce the Sixth Amendment

guarantee of effective representation of counsel to mere

“sound and fury, signifying nothing.” William Shakespeare,

Macbeth, act 5, sc. 5.

CONCLUSION

We reverse the judgment of the district court and remand

with instructions to grant the writ of habeas corpus unless

Weeden is timely retried.8

performance in general, but rather his “particular decision not to

investigate” psychological testimony. Strickland, 466 U.S. at 691.

6

The dissent’s speculative suggestion that Dr. Perrine’s testimony

“likely would have invited the Government to call its own forensic

psychologist,” Dissent at 38, is not grounded in the record, and it is well

settled that “we do not ‘evaluate all the hypothetical reasons that could

have supported’” a state court’s reasoned decision. Cuero v. Cate, 827

F.3d 879, 884 (9th Cir. 2016) (quoting Cannedy v. Adams, 706 F.3d 1148,

1157 (9th Cir. 2013)).

7

The dissent offers additional possible justifications for the state

court’s conclusion, including an argument that defense counsel “could

have reasonably believed that his time and available resources were better

spent” elsewhere. Dissent at 34. But, we review only the state court’s

reasoned decision. Cuero, 827 F.3d at 884.

8

Because we conclude that Weeden’s petition should be granted on

the ineffective assistance of counsel claim, we do not reach her claim of

instructional error.

20 WEEDEN V. JOHNSON

CALLAHAN, Circuit Judge, dissenting:

There is no denying that this case is tragic: a young man’s

life was stolen from him, a family was deprived of a son, and

four young people made decisions that will dramatically alter

the course of their lives. However, this tragedy is no excuse

for making bad law, which is exactly what the majority

opinion does. In its quest to free a 14-year-old girl from the

consequences of a felony murder conviction, 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. Because such

action is inconsistent with clearly established Supreme Court

precedent and the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), I respectfully dissent.

I. Background

The shooting and law enforcement’s investigation

On August 5, 2005, 22-year-old Deovinesh Kumar and

17-year-old Navnil Chand were shot by 20-year-old Sirtice

Melonson at a local park, apparently during a botched

robbery. Chand later died from the wounds he sustained. At

the time of the shooting, Melonson was joined by 16-year-old

Ryan Moore. Kumar and Chand apparently did not know

either Melonson or Moore. However, they did know 14-year-

old Weeden, whom they had met the previous week when

they ran into Weeden, Angela G., and two other teenage girls.

On the night in question, Kumar and Chand phoned Weeden

twenty-nine times—the last call being placed just minutes

before the men were shot. According to Kumar, he and

WEEDEN V. JOHNSON 21

Chand went to the park to meet one of the teenage girls they

had met the prior week.

While Weeden was not near the scene, she had been in

communication with Moore throughout the night, including

up to twenty minutes before the shooting. Additionally,

shortly after Weeden received her first call from Chand,

Weeden began exchanging calls with 17-year-old Janee Hill,

which continued up to and after the shooting. Besides talking

to Weeden, Hill also spoke telephonically with Moore off and

on during the night in question. None of the phone calls

between the parties were recorded.

Following the night in question, Moore, at the behest of

law enforcement, sent Weeden a number of text messages

accusing Weeden of being responsible for the shooting. In

response, Weeden stated: “[D]is ain’t my fucking fault.

Sirtice should [sic] have done what he did. He brought you

into that by doing that. This shit wasn’t my fault, so don’t

even fucking say it was.” Weeden went on to say: “[I]t’s

Angie’s fucking fault, dummy. She da one that went to the

car and gave them my number.” When Moore claimed that

it was Weeden’s idea to rob the “hindus,” Weeden retorted

with,“[i]t wasn’t my fucking idea. It was Angie’s, so shut

up.” While Weeden admitted to Moore that she knew

“Sirtice was going to rob [the men in the car]” and “that

someone [had] told [her] to tell [the men in the car] to meet

[her] at the park,” she maintained that “[she] didn’t set nuttin’

up.” Weeden also advised Moore that “[i]f [he] want[ed] to

get out of this, [he would] have to give up Angie’s name.”

In addition to the pretextual text messages, law

enforcement interviewed 14-year-old Angela G., 14-year-old

John W., and Hill, all three of whom are related to each other

22 WEEDEN V. JOHNSON

and to Moore. Angela G. apparently stated that, leading up

to the incident, Weeden and Moore had talked about robbing

the victims. John W. said that, prior to the shooting, he

overheard Weeden telling Angela G. that Moore was going to

rob someone.

As for Hill, she initially fooled the homicide detectives

into believing that she was someone other than who she was,

so the night in question was not discussed during her first

encounter with law enforcement. Hill lied about her identity

because she had a traffic warrant and was afraid that she

would be arrested and taken to juvenile hall if she told the

detectives who she was. Eventually, Hill did speak with law

enforcement a number of times about the incident. At first,

Hill indicated that Moore had nothing to do with the shooting

and that the only thing Weeden had said to her on the night in

question was to call Moore’s phone and ask “if he was there.”

Later, however, Hill told law enforcement that Moore had

said to her a few days before the shooting that he was

planning to rob someone. Hill also stated that, on the night of

the shooting, Weeden kept asking Hill to call Moore and pass

along certain messages, such as where to go, how many guys

he should expect to see, and what kind of car to look for.

Despite this, Hill denied knowing that Melonson, Moore, and

Weeden were intending to rob the victims because Moore had

told her during one of her calls with him that no robbery was

going to occur.

Weeden’s trial

In January 2006, Melonson, Moore, Weeden, and Hill

were charged with first degree murder for the death of Chand

and attempted murder for the shooting of Kumar. Because

Melonson had previously been convicted of felony home

WEEDEN V. JOHNSON 23

invasion, he was also charged with being a felon in

possession of a firearm. Later, Moore and Hill pleaded guilty

to lesser charges. In exchange for Hills’ plea and testimony

against the co-defendants, the first degree murder and

attempted murder charges against her were dropped and she

was allowed to plead guilty to an offense that had a

confinement cap of four years. Prior to trial, the People filed

an amended information, adding the charge of attempted

second degree robbery against Melonson and Weeden.

On October 27, 2008, the joint trial for Melonson and

Weeden began. Among other witnesses, the People called

John W. John W. initially denied hearing Weeden talk about

a robbery. However, in an about-face, John W. later testified

on direct examination that he had heard Angie and Weeden

planning a robbery. John W. went on to say that the girls had

asked him to help with the robbery, but he said no. While on

the stand, Angie G. denied ever hearing anyone, including

Weeden, talk about a robbery.

The People also introduced call logs from the night in

question. To discuss the content of the phone conversations,

the People called Hill. On direct examination, Hill deflected

the blame from herself and Moore and indicated that Weeden,

the youngest of the four defendants and a person who had no

criminal background, was the impetus behind the botched

robbery. According to Hill, Weeden initially told her that

someone kept crank calling her and that she was going to

have the person beat up. However, Weeden later allegedly

stated that she was going to have Moore rob the boys who

were crank calling her and that she and Moore were going to

get “weed and money.” Hill claimed that she warned

Weeden that “she shouldn’t do the robbery because bad

things happen with robberies.” Hill also discussed how

24 WEEDEN V. JOHNSON

Weeden had her relay a number of messages to Moore that

ultimately led Moore and Melonson to the victims’ location.

On cross examination, Weeden’s trial attorney impeached

Hill on a number of grounds: (1) her plea agreement that

reduced her possible sentence from life to 4 years; (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 had initially lied to law enforcement

about who she was because she was afraid that she was going

to be taken to juvenile hall for a traffic warrant.

During Weeden’s case in chief, Weeden’s trial attorney

called four character witnesses who stated that Weeden was

not the type of person to participate in a robbery. Following

the presentation of the evidence, the jury was instructed that

the first degree murder charge was based on a felony murder

theory and that the jury could convict Weeden of murder only

if it believed that she intended for the victims to be robbed.

During closing arguments, one of Weeden’s trial attorney’s

central themes was that the People had failed to show beyond

a reasonable doubt that Weeden directed Moore to the

victims’ car to rob them, as opposed to some other reason,

such as to scare them or have them beat up. Seven days after

the close of the case, the jury found Weeden guilty of first

degree felony murder and attempted second degree robbery,

but not guilty of attempted murder.1 Weeden’s sentencing

hearing was scheduled for approximately two months later.

1

In contrast, Melonson was convicted of all charges brought against

him two days after the joint trial ended.

WEEDEN V. JOHNSON 25

Post-trial

Following the trial, Weeden released her trial attorney,

who had represented her since at least January 2006, and

retained new counsel. At the sentencing hearing, Weeden’s

new counsel indicated that he intended to file a number of

motions, one of which was a motion for a new trial based, in

part, on the allegation that Weeden’s trial attorney was

ineffective for failing to have Weeden examined by a forensic

psychologist. The Superior Court expressed skepticism of

Weeden’s new counsel’s claim of ineffective assistance,

stating that the trial attorney’s performance was “excellent”

and “fabulous,” but nevertheless delayed sentencing and set

a hearing on counsel’s motions for the following month.

During the motion hearing, Weeden’s trial attorney and

Lisa Perrine, Ph.D., a forensic psychologist, testified. While

on the stand, Weeden’s trial attorney, who was a former

assistant district attorney that had litigated roughly 100 cases

during his 20-year career, including at least 10 murder trials,

stated that he considered retaining a forensic psychologist,

but opted not to because he believed such testimony

“wouldn’t necessarily have been helpful.” Additionally, he

indicated that he believed such testimony could actually be

harmful: “if the doctor were to conclude that [Weeden] 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.” Weeden’s trial attorney also noted that he

believed the witnesses testifying about Weeden’s

“involvement and what was said prior to the robbery . . .

lacked credibility.”

26 WEEDEN V. JOHNSON

Dr. Perrine, who met with Weeden for a total of 7 hours

following her conviction, testified that she believed that

Weeden “probably had the understanding of what a robbery

was when she was age 14,” but, because Weeden “misses

really important information in her environment,” she “may

not put all the pieces together and understand that a robbery

is intended.” When initially asked if Weeden “ha[d] enough

information that she was capable of processing, to share the

intent with the perpetrator that the victim be robbed,” Dr.

Perrine answered, “I don’t know.” However, after Weeden’s

new counsel told her that the co-defendants were older than

Weeden, Dr. Perrine seemingly changed her position and

indicated that Weeden would not necessarily share the co-

defendants’ intent.

On cross examination, Dr. Perrine admitted that, besides

speaking with Weeden, Weeden’s parents, and Weeden’s

teacher, the only evidence she reviewed in forming her

opinions was the presentence report. Thus, Dr. Perrine did

not read the police reports in the case, the witnesses’

statements to law enforcement, the phone records, the text

messages exchanged between Weeden and Moore, or the

transcript from trial. According to Dr. Perrine, “even if [she]

had reviewed all of that information, [she was] not at all sure

that it would have made a whole lot of difference.”

In addition to testimony, Weeden’s new counsel also

produced a declaration from Weeden and an expert report

from Dr. Perrine. In her declaration, Weeden stated, among

other things, that she did not know that Moore and Melonson

intended to rob the victims. As for Dr. Perrine’s report,

despite the fact that Weeden had never been held back in her

schooling, enrolled in a special education class, participated

in outpatient psychotherapy, or reported any mental health

WEEDEN V. JOHNSON 27

symptoms, Dr. Perrine opined that Weeden “functions

intellectually in the low average to borderline range with 91%

of adolescents her age functioning at a higher level.” Dr.

Perrine’s report concluded that Weeden could likely

comprehend the concept of robbery and that someone else

intended to commit one, but that “it [wa]s extremely unlikely

she would intend to commit robbery or knowingly participate

in one.”

After considering the evidence in support of Weeden’s

motion, as well as the parties’ briefing and oral arguments,

the Superior Court denied Weeden’s claim that her trial

attorney was ineffective. It did so based on its finding that

Weeden had failed to satisfy both prongs of the Strickland v.

Washington, 466 U.S. 668 (1984), test. Specifically, the

Superior Court found that Weeden’s trial attorney’s decision

not to employ a forensic psychologist was “a sound tactical

decision” because Weeden’s “intent d[id] not appear to be at

issue since she den[ied] that she planned the robbery or

agreed 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, Weeden’s new counsel again claimed

that his predecessor was constitutionally ineffective by

“failing to present psychological testimony” that Weeden was

“[in]capable of forming the intent to rob.” People v.

Melonson, 2013 WL 1987240, at *20 (Cal. Ct. App. May 15,

2013), as modified on denial of reh’g (June 14, 2013). The

California Court of Appeal rejected this claim, stating:

Weeden contends trial counsel’s decision

not to have her examined by a psychologist

28 WEEDEN V. JOHNSON

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.

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 not have concluded Weeden joined

in Melonson’s criminal intent to commit

armed robbery.

Again, trial counsel pursued the defense

that Weeden did not set up the robbery or

agree to it. The testimony Weeden claims

counsel was ineffective in failing to present

might well have undermined this defense.

Among Dr. Perrine’s findings was that

Weeden had a strong tendency to be a passive

follower, which might have led the jury to

conclude she did not initiate the robbery but,

WEEDEN V. JOHNSON 29

sheep-like, went along with it. We find no

ineffective assistance.

Id. at *21.

The California Supreme Court summarily denied

Weeden’s petition for review. The District Court also denied

Weeden’s habeas petition. See Weeden v. Johnson, 2014 WL

6808778 (E.D. Cal. Nov. 26, 2014).

II. DISCUSSION

A federal habeas petition challenging state custody shall

be denied “unless the state court’s adjudication of the claim[]

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1) (emphasis added). “A decision is

‘contrary to’ Supreme Court precedent where ‘the state court

arrives at a conclusion opposite to that reached by the

Supreme Court on a question of law or if the state court

decides a case differently than the Supreme Court has on a set

of materially indistinguishable facts.’” Jones v. Harrington,

829 F.3d 1128, 1135 (9th Cir. 2016) (alterations in original

omitted) (quoting Williams v. Taylor, 529 U.S. 362, 413

(2000)). A state court unreasonably applies clearly

established federal law if it “identifies the correct governing

legal rule but unreasonably applies it to the facts of the

particular state prisoner’s case.” White v. Woodall, 134 S. Ct.

1697, 1705 (2014) (alteration in original and internal

quotation marks omitted). State court decisions are to be

measured “against [the Supreme Court’s] precedents as of the

time the state court renders its decision.” Greene v. Fisher,

30 WEEDEN V. JOHNSON

132 S. Ct. 38, 44 (2011) (emphasis in original) (internal

quotation marks omitted).

Here, the majority concludes that the California Court of

Appeal’s finding that Weeden’s trial counsel’s performance

was adequate is “contrary to, or involved an unreasonable

application of, clearly established Supreme Court law.” Maj.

Op. 14–15 (internal quotation marks omitted). To be

constitutionally ineffective, an attorney’s performance must

not only be deficient, but the deficiency must also be

prejudicial. See Strickland, 466 U.S. at 687. “Surmounting

Strickland’s high bar is never an easy task[,]” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010), and is made “doubly”

hard when a federal court is reviewing a state court’s

application of Strickland, Knowles v. Mirzayance, 556 U.S.

111, 123 (2009). Here, neither the record nor existing case

law support granting habeas relief on ineffective assistance

grounds.2

A. The California Court of Appeal’s determination

that Weeden’s trial attorney’s performance was

adequate is not contrary to nor an unreasonable

application of clearly established Supreme Court

law.

According to the majority, Weeden’s trial attorney was

constitutionally ineffective by failing to have a psychological

examination performed on Weeden because “Weeden’s

mental condition was an essential factor in deciding whether

she actually had the required mental states for the [charged]

2

Weeden also seeks habeas relief based on the Superior Court’s

refusal to instruct the jury on Weeden’s age. Although not reached by the

majority, I would deny relief on that ground as well.

WEEDEN V. JOHNSON 31

crime.” Maj. Op. 13–14 (internal quotation marks omitted).

But what Supreme Court precedent mandates this conclusion?

While the majority is correct that an attorney has a “duty to

make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary,”

Strickland, 466 U.S. at 691, we are not to frame the issue

presented at a “high level of generality.” Lopez v. Smith, 135

S. Ct. 1, 4 (2014) (per curiam) (internal quotation marks

omitted). Rather, when deciding if a decision is contrary to

established law, we must ask if a Supreme Court case

addresses “the specific question presented by this case,”

Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam),

which here is whether a defendant must be psychologically

examined for the guilt phase of a non-capital case in which

competency is not an issue. No Supreme Court case has

answered this question in the affirmative. Therefore, the

California Court of Appeal’s determination that Weeden’s

trial counsel’s decision not to request an examination was a

very reasonable tactical decision “[can]not be contrary to any

holding from [the Supreme Court].” Id. (internal quotation

marks omitted).

Additionally, the California Court of Appeal’s

determination is not an unreasonable application of Supreme

Court precedent. “The Strickland standard is a general one,

so the range of reasonable applications is substantial.”

Harrington v. Richter, 562 U.S. 86, 105 (2011). Further,

under AEDPA, “the question is not whether counsel’s actions

were reasonable,” but, rather, “whether there is any

reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. at 105. In other words, “[t]he state

court decision must be so lacking in justification that there

was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

32 WEEDEN V. JOHNSON

Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per

curiam).

At a minimum, there could be fairminded disagreement

about whether Weeden’s trial attorney’s representation was

adequate. An attorney provides effective assistance if their

representation “does not fall below an objective standard of

reasonableness in light of prevailing professional norms.”

Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam).

Prevailing professional norms are typically distilled from

standards developed by the American Bar Association

(“ABA”). See Wiggins v. Smith, 539 U.S. 510, 524 (2003)

(noting that the Supreme Court has long referred to ABA

standards as “guides to determining what is reasonable”

(internal quotation marks omitted)). The Criminal Justice

Standards for the Defense Function published by the ABA do

not mention, much less require, psychological evaluations in

non-capital cases, which is unlike what the ABA has said in

the capital context. See ABA’s Guidelines for the

Appointment and Performance of Defense Counsel in Death

Penalty Cases, Guideline 4.1.A.1-2 (rev. ed. 2003) (stating

that a capital-defense team “should contain at least one

member qualified by training and experience to screen

individuals for the presence of mental or psychological

disorders or impairments”). Thus, the California Court of

Appeal’s determination that Weeden’s trial attorney was

effective is not inconsistent with any then-existing

professional norm.

What’s more, a fairminded judge, considering all of the

circumstances in this case, could believe that Weeden’s trial

attorney’s decision not to have Weeden examined was sound.

When trial began, Weeden’s trial attorney had represented

Weeden for over two and a half years. Thus, the attorney had

WEEDEN V. JOHNSON 33

sufficient time to familiarize himself with the case and his

client and to formulate a defense strategy. Further, after

litigating approximately 100 cases, including at least 10

murder trials, Weeden’s trial attorney had the experience to

make sound defense strategies. Last, Weeden’s trial attorney

arguably executed his strategy at trial effectively because

Weeden was acquitted of a serious offense—attempted

murder—and the Superior Court described the trial attorney’s

performance as “excellent” and “fabulous.” As a result,

reasonable minds could well believe that Weeden’s trial

attorney was effective.

The majority’s conclusion to the contrary is based on an

incomplete reading of Harrington v. Richter, 562 U.S. 86

(2011). First, while the Harrington court did state that

“[c]riminal cases will arise where the only reasonable and

available defense strategy requires consultation with experts,”

it qualified this observation by indicating that such cases are

“[r]are.” 562 U.S. at 106. This case is not one of those rare

cases where the evidence against the defendant was so

overwhelming or pointed so strongly in one direction that the

only reasonable defense available was one that incorporated

psychological evidence. Weeden was not at the scene, there

was no physical evidence directly tying Weeden to the

charged crimes, all of the co-defendants were older, and

Weeden had no criminal record. Plus, the People’s case

heavily relied upon statements made by co-defendants or

relatives of the co-defendants, all of whom had made

inconsistent statements. Thus, each statement made by the

People’s key witnesses was challengeable on the ground that

its declarant was biased and/or untrustworthy. Accordingly,

this case is one where a reasonable attorney could choose to

base his defense on the theory that the People’s evidence was

insufficient to meet reasonable doubt’s stringent requirement,

34 WEEDEN V. JOHNSON

as opposed to grasping for straws and claiming that his

competent client somehow lacked the ability to form the

requisite intent. See id. at 109 (“To support a defense

argument that the prosecution has not proved its case it

sometimes is better to try to cast pervasive suspicion of doubt

than to strive to prove a certainty that exonerates.”).

Second, the majority’s reading of Harrington overlooks

the case’s holding that an attorney does not have to consult

with every expert “whose insight might possibly have been

useful.” Id. at 107. “An attorney can avoid activities that

appear distractive from more important duties.” Id. (internal

quotation marks omitted). Further, an attorney’s “attention to

certain issues to the exclusion of others” is “strong[ly]

presum[ed]” to reflect a “trial tactic[] rather than sheer

neglect.” Id. at 109 (internal quotation marks omitted).

Here, Weeden’s trial attorney could have reasonably

believed that his time and available resources were better

spent on the defense theory that Weeden was unaware that

Melonson and Moore intended to rob the victims than on the

theory that she was incapable of intending for someone to be

robbed. The former theory was not a clear loser, as

evidenced by the jury’s partial acquittal. While the majority

may have taken a different approach, “[r]eliance on the harsh

light of hindsight to cast doubt on a trial that took place now

more than [8] years ago is precisely what Strickland and

AEDPA seek to prevent.” Id. (internal quotation marks

omitted).

At bottom, the majority’s determination that Weeden is

entitled to habeas relief can only be justified if there is a per

se rule that a defense attorney must seek a psychological

evaluation whenever his or her client arguably has some

WEEDEN V. JOHNSON 35

mental impairment, regardless of whether the attorney

believes such an evaluation will be valuable to the defense.

However, no Supreme Court precedent establishes such a per

se rule. In fact, such precedent indicates that there are few,

if any, per se rules in the ineffective assistance counsel

context: “[r]are are the situations in which the wide latitude

counsel must have in making tactical decisions will be limited

in any one technique or approach.” Harrington, 562 U.S. at

106 (internal quotation marks omitted). As a result, the

majority errs in holding that California Court of Appeal acted

contrary to or unreasonably applied established Supreme

Court precedent by finding Weeden’s trial attorney’s

performance adequate.

B. Even if Weeden’s trial attorney’s performance was

constitutionally deficient, Weeden was not

prejudiced.

Realizing that it cannot clear the high hurdle AEDPA sets

for the Strickland prejudice prong, the majority attempts an

end-run around it by claiming that AEDPA deference does

not apply in this case because the California Court of Appeal

did not address prejudice. Maj. Op. 15. However, this is

simply not true. Far from pretermitting the analysis, the

California Court of Appeal identified a specific harm that

could have occurred had Weeden’s trial attorney introduced

testimony from a forensic psychologist: “Dr. Perrine’s

finding[] was that Weeden had a strong tendency to be a

passive follower, which might have led the jury to conclude

she did not initiate the robbery but, sheep-like, went along

with it.” Melonson, 2013 WL 1987240, at *21. While the

majority may disagree with the California Court of Appeal’s

assessment, this disagreement does not change the fact that

36 WEEDEN V. JOHNSON

the state court did address the issue and that its determination

is entitled to deference.

As for the majority’s claim that the California Court of

Appeal applied the wrong legal standard, Maj. Op. 16–18, it

too does not hold water. Leading up to its prejudice analysis,

the Court of Appeal correctly identified the governing legal

standard—reasonable probability. See Melonson, 2013 WL

1987240, at *21 (stating that the defendant must show that “it

is reasonably probable that a more favorable result would

have been reached absent the deficient performance”).

Furthermore, the Court of Appeal recited Weeden’s argument

for why the reasonable probability standard was met in her

case—the lack of psychological evidence “undermine[d]

confidence in the outcome of th[e] trial.” Id. Against this

backdrop, the Court of Appeal’s observation that Weeden’s

psychological evidence “might have” actually hurt her case

had it been offered does not indicate that it applied the wrong

legal standard. While the majority may prefer that the Court

of Appeal had offered a more complete written analysis for its

no-prejudice finding, the fact that it did not does not mean

that its finding should receive any less deference. See

Johnson v. Williams, 133 S. Ct. 1088, 1095–96 (2013) (“The

caseloads shouldered by many state appellate courts are very

heavy, and the opinions issued by these courts must be read

with that factor in mind.” (internal footnote omitted)).

Nonetheless, even if the majority were correct that we are

to apply de novo review to the prejudice prong in this case,

habeas relief should still be denied. Relief is warranted only

if the trial attorney’s errors are “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”

Harrington, 562 U.S. at 104. “The likelihood of a different

result must be substantial, not just conceivable.” Id. at 112.

WEEDEN V. JOHNSON 37

To say the least, the utility of calling a forensic

psychologist to discuss Weeden’s age, maturity, or

intelligence is questionable. To begin with, the psychological

evidence offered by Weeden’s new counsel was weak. As

noted in Dr. Perrine’s report, Weeden had never been held

back in her schooling, enrolled in a special education class,

participated in outpatient psychotherapy, or reported any

mental health symptoms. Furthermore, Dr. Perrine’s opinions

were based on incomplete information. For instance, Dr.

Perrine had not reviewed the texts exchanged between

Weeden and Moore following the shooting, which

demonstrated that Weeden was no shrinking violet and was

capable of trying to direct others’ activities—e.g., advising

Moore that “[i]f [he] want[ed] to get out of this, [he would]

have to give up Angie’s name.” Also, Dr. Perrine was

unaware of Hill’s alleged warning to Weeden just prior to the

shooting not to participate in the robbery because it could go

bad.

Further diminishing the value of psychological evidence

in this case is the fact that, even without it, the jury already

had the information necessary to determine, if it wanted to,

that Weeden lacked the requisite mental condition to intend

a robbery. The jury was aware of Weeden’s age at the time

of the shooting and was instructed that it could use its

“common sense and experience” when evaluating the

evidence. Thus, this case is fundamentally different from

those where the Supreme Court has found that an attorney’s

failure to investigate prejudiced the defendant. See, e.g.,

Wiggins, 539 U.S. at 534–35 (finding that the capital-murder

defendant had been prejudiced during sentencing by his

attorney’s failure to uncover evidence that the defendant had

“experienced severe privation and abuse in the first six years

of his life” and had been “physical[ly] torment[ed], sexual[ly]

38 WEEDEN V. JOHNSON

molest[ed], and repeated[ly] rape[d] during his subsequent

years in foster care”).

In addition to psychological evidence adding little value

to the defense, it might well have been harmful. As noted by

the California Court of Appeal, a psychologist’s testimony

would have been susceptible to being usurped by the

prosecutor, as it could be manipulated to establish that

Weeden’s age made her more likely to engage in or go along

with risky or illegal behavior. Additionally, it likely would

have invited the Government to call its own forensic

psychologist and “transform the case into a battle of the

experts.” Harrington, 562 U.S. at 108–09. In light of the text

messages between Weeden and Moore, as well as the fact that

Weeden had never been held back in her schooling or

reported any mental health symptoms, shifting the jury’s

focus from whether Weeden intended for the victims to be

robbed to whether she had ability to intend a robbery likely

would not have been in Weeden’s best interest.

Conclusion

The majority’s apparent desire to save Sarah Weeden

from the consequences of her felony murder conviction is

understandable—the result it reaches under AEDPA is not.

While the majority may disagree with California’s decision

to allow for the adult prosecution of 14-year-olds, nothing

prohibits the State from adopting such a policy. What

Weeden was entitled to under the law—a fair trial and

competent counsel—she received. To be sure, it would be

nice to magically undo Weeden’s decision to lure two

unsuspecting victims into what proved to be a death trap.

Unfortunately, we are federal judges, not magicians, and no

do-over of the night in question is forthcoming. As a result,

WEEDEN V. JOHNSON 39

what we are stuck with is a conviction that has been reviewed

and upheld by the California Court of Appeal. The state

court’s determination is neither contrary to nor an

unreasonable application of Supreme Court precedent, and,

thus, there is no basis to afford Weeden habeas relief.

Because the majority opinion reaches the opposite

conclusion, I respectfully dissent.