Petition for Writ of Certiorari — Scott Speer, Superintendent, Stafford Creek Corrections Center, et al., Petitioners v. Jeffrey Weller, et al.

No. *

In the Supreme Court of the Gnited States

SCOTT SPEER AND CHARLOTTE HEADLEY,

SUPERINTENDENTS, STAFFORD CREEK CORRECTIONS

CENTER AND WASHINGTON CORRECTIONS CENTER FOR

WOMEN,

PETITIONERS,

v.

JEFFREY WELLER & SANDRA WELLER,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FoR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

PETER B. GONICK

1125 Washington Street SE ated el aii

Olympia, WA 98504-0100 ounsel of Recor

360-753-6200 JOHN J. SAMSON

Peter.Gonick@atg.wa.gov Senior Counsel

QUESTIONS PRESENTED

28 U.S.C. § 2254(d) bars habeas relief unless

the state court adjudication of the merits of a

claim was contrary to or an unreasonable application

of clearly established federal law. For claims of

ineffective assistance of counsel, Strickland v.

Washington, 466 U.S. 668 (1984), is the relevant

clearly established federal law. The Washington

courts expressly applied Strickland in this case, and

the district court denied relief, finding the state

court adjudication of the claim was reasonable.

On appeal, the Ninth Circuit remanded for an

evidentiary hearing, holding that the state courts

never adjudicated the merits of the claim. The

questions presented are:

1. Whether the state courts adjudicated the

merits of the claim for purposes of 28 U.S.C. § 2254(d)

when the state courts expressly cited to this Court’s

controlling precedent to deny the claim on collateral

review.

2. Whether the Ninth Circuit failed to

comply with 28 U.S.C. § 2254(e)(2) when it authorized

an evidentiary hearing without applying the

requirements of that statute.

li

PARTIES

The Petitioners are Scott Speer, the

Superintendent of the Stafford Creek Corrections

Center, and Charlotte Headley, the Superintendent

of the Washington Corrections Center for Women.

Superintendent Speer is the successor in office

to Ronald Haynes, who was formerly the custodian

of Mr. Weller, and Superintendent Headley is

the successor in office to Deborah Jo Wofford,

who was formerly the custodian of Mrs. Weller.

Superintendents Speer and Headley’ are

substituted pursuant to Rule 35.3.

The Respondents are Jeffrey Weller and

Sandra Weller, petitioners-appellants below.

iil

RELATED PROCEEDINGS

The following is a list of proceedings in state

and federal court directly related to this petition:

e Jeffrey Weller v. Ronald Haynes, and

Sandra Weller v. Deborah Wofford, United

States Court of Appeals for the Ninth Circuit,

No. 23-35459 and No. 23-35460, memorandum

opinion entered September 9, 2024, and order

denying rehearing entered October 11, 2024

° Jeffrey Weller v. Ronald Haynes, and

Sandra Weller v. Deborah Wofford, United

States District Court, Western District

of Washington, No. 3:20-cv-05861-RAJ-TLF

(consolidated with No. 3:20-cv-5862-RAJ-TLF),

judgment entered June 12, 2023

@ In re Personal Restraint Petitions of:

Jeffrey Weller and Sandra Weller, Washington

Supreme Court, No. 97453-5, final order

entered August 5, 2020

© In re Personal Restraint Petition of

Jeffrey Weller and In re Personal Restraint

Petition of Sandra Weller, Washington Court of

Appeals, No. 52289-6-II (consolidated with

No. 52302-7-ID, opinion entered July 2, 2019

® State v. Jeffrey Weller and Sandra

Weller, Washington Supreme Court,

No. 94296-0, order entered June 28, 2017

lv

e State v. Sandra Weller and State v.

Jeffrey Weller, Washington Court of

Appeals, No. 48056-5-II (consolidated with

No. 48106-5-II), opinion entered January 31,

2017

e State v. Jeffrey Weller and State v.

Sandra Weller, Washington Supreme Court,

No. 91406-1, order entered July 8, 2015

@ State v. Jeffrey Weller and State v.

Sandra Weller, Washington Court of Appeals,

No. 44726-6-II (consolidated No. 44733-9-ID),

opinion entered February 18, 2015

@ State v. Jeffrey Weller, Superior Court

of the State of Washington, Clark County,

Cause No. 11-1-01678-1, judgment entered

September 17, 2015

e State v. Sandra Weller, Superior Court

of the State of Washington, Clark County,

Cause No. 11-1-01679-1, judgment entered

September 17, 2015

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARL ...........

OPINIONS BELOW ...00 eee seeeeseeessesseneeeees

JURISDICTION 00... eee eeeeeeeesseeeeenseneeeeeeneeeeeeees

CONSTITUTIONAL AND

STATUTORY PROVISIONS .... eee ee eeeeeeeeeees

A. The Wellers Were Convicted on Multiple

Counts of Assaulting and Unlawfully

Imprisoning Their Children...................::::008

B. The State Courts on Collateral Review

Adjudicated the Merits of the Claim of

Ineffective Assistance of Counsel...................

C. The District Court Denied Relief Because

the State Court Adjudication of the Merits

of the Claim Was Not Unreasonable .............

D. The Ninth Circuit Ruled that the

State Courts Never Adjudicated

the Merits of the Claim ............. ccc ceee cece eee eee ees

REASONS FOR GRANTING THE PETITION .......

A. Congress Enacted AEDPA Specifically to

Limit a Federal Court’s Power to Review

Habeas Claims De Nou .0......cccccccceeceeceeceesceees

B. The Ninth Circuit Circumvented This

Limitation by Mischaracterizing the

State Court Adjudication of the Merits .........

K.

al

The Ninth Circuit Incorrectly Determined

that the State Courts Applied Only a State

Procedural Rule in Denying the Claim.......... 18

Even if the State Supreme Court Applied

a State Procedural Law, the Ninth Circuit

Should Have Reviewed the Lower Court

Adjudication of the Claim...................ccccceeeeees 23

The Ninth Circuit Failed to Apply the

Requirements of 28 U.S.C. § 2254(e)(2)......... 26

CONCLUSION sssssssscssovsssssssoevevscsssisseunmsensscesrunsecesesss 30

Vil

APPENDIX

Order (Oct. 11, 2024),

Weller v. Haynes and Weller v. Wofford,

United States Court of Appeals

for the Ninth Circuit,

No. 23-35459 and No. 23-35460...............:ccccceeseeeeeees la

Memorandum (Sept. 9, 2024),

Weller v. Haynes and Weller v. Wofford,

United States Court of Appeals

for the Ninth Circuit,

No. 28-35459 and No. 23-35460.............ccessssseesseeeeees 2a

Judgment in a Civil Case (June 12, 2023),

Weller v. Haynes and Weller v. Wofford,

United States District Court, W.D. Wash.,

No. 3:20-cv-05861-RAJ-TLF

(Consolidated w/ No. 3:20-cv-5862-RAJ-TLF).......... 8a

Order (June 12, 2023),

Weller & Weller v. Haynes & Wofford,

United States District Court, W.D. Wash.,

No. 3:20-cv-05861-RAJ-TLF

(Consolidated w/ No. 3:20-cv-5862-RAJ-TLF)........ 10a

Report and Recommendation (Mar. 7, 2023),

Weller v. Haynes and Weller v. Wofford,

United States District Court W.D. Wash.,

No. 3:20-cv-05861-RAJ-TLF

(Consolidated w/ No. 3:20-cv-5862-RAJ-TLF)........ 12a

Order (Aug. 5, 2020),

In re the Personal Restraint of Jeffrey Wayne Weller

& Sandra Doreen Weller aka Sandra Graf,

Washington Supreme Court, No. 97453-5.............. 39a

Vill

Ruling Denying Review (May 5, 2020),

In the Matter of the Personal Restraint of:

Jeffrey Wayne Weller &

Sandra Doreen Weller aka Sandra Graf,

Washington Supreme Court, No. 97458-5..............

Unpublished Opinion (July 2, 2019),

In the Matter of the Personal Restraint of

Jeffrey Wayne Weller and

Sandra Doreen Weller aka Sandra Graf,

Washington Court of Appeals, No. 52289-6-II

(consolidated w/ No. 52302-7-ID) .................00-

Part Published Opinion (Feb. 18, 2015),

State v. Jeffrey W. Weller and

State v. Sandra D. Weller,

Washington Court of Appeals,

Consolidated Nos. 44726-6-II and 44733-9-II

59a

1x

TABLE OF AUTHORITIES

Cases

Bell v. Cone

B35 U.S. 685 (2002)......eccecescecsececsessessessesesseeseeseeeee 14

Borden v. Allen

646 F.3d 785 (11th Cir. 2011)... eeseeeeeeee 22

Brown v. Davenport

596 U.S. 118 (2022)....ccccccecsesessessesesssesesseeseeeee 24-26

Brown v. Payton

544 U.S. 133 (2005)...c.ceccccecsecececcecsesseesesecsnesvesveneens 15

Burt v. Titlow

B71 U.S. 12 (2018) ..ccccccccecscsssecssesscsessessesesseeneseeneees 25

Coleman v. Thompson

BO1 U.S. 722 (1991) ..cccccccescsssesssseseceessestsseesecenseveees 18

Cullen v. Pinholster

563 U.S. 170 (2011)... eeeeeeecececeeeeeeeeeeeeeeeees 27-28

Daniel v. Comm’, Ala. Dep’t of Corr.

822 F.3d 1248 (11th Cir. 2016)...c.sc.ccccccesseseeeeseeee- 22

Dunn v. Reeves

594A U.S. 731 (2021) ..ccceccesecseseccecsesesessessesesseceeeeeeees 17

Early v. Packer

537 U.S. 3 (2002) .ccccccccsscsececsesesessessesessesesevsvesveseeves 16

Fama v. Comm’ of Corr. Servs.

235 F.3d 804 (2d Cir. 2000) ........... cee eeeeeeeeceeeeeeeeeees 19

Glebe v. Frost

B74 U.S. 21 (2014) vccccccscccsscesessessssesessessesestesessesesseees 5

Greene v. Fisher

565 U.S. 34 (2011)... eee ccccccccceeeeeeseeeeeneeeens 24, 26

Haight v. Jordan

59 F.4th 817 (6th Cir. 2028) .......... cc eeeeeceeeeeeeeeeeeees 19

Harrington v. Richter

B62 U.S. 86 (2011) ..scccccsecsscessessecsesessessseeseeseeees 13-16

Harris v. Reed

489 U.S. 255 (1989) ..cccccceccescecsesecsessesecsesecsscsecsesscens 18

Henderson v. Palmer

730 F.3d 554 (6th Cir. 2018)... eeeeeeeeees 20

Holland v. Jackson

B42 U.S. 649 (2004) ....ececcescecessesseseesessesees 14, 21-22

In re Rice

118 Wash. 2d 876,

828 P.2d 1086 (1992) ................ 9-11, 18, 20-22, 25

Jackson v. Virginia

443 U.S. 307 (1979) .cccsecsssecsesessesesssscsessssessestssesessee 15

Jermyn v. Horn

266 F.3d 257 (3d Cir. 2001) ...ccccccecsesecsesessesesseeeeeees 19

Jimenez v. Walker

458 F.3d 130 (2d Cir. 2006) ...............ccceeceeeeeeeeeeeees 19

Johnson v. Willtams

568 U.S. 289 (2013) ccsssscvsssmassncoasssssnssaserenesesaenes 15-17

Jones v. Sec’y, Fla. Dep’t of Corr.

834 F.3d 1299 (11th Cir. 2016)... eens 22

Kernan v. Hinojosa

578 U.S: 412 (201 6) sccceswsnssaseacssusnssnacesosensarssasssansrcorss 5

Lafler v. Cooper

BGG U.S. 156 (2012) ...ccccescecsecsessessessesecsessessesseesessee 25

xi

Lopez v. Smith

574 U.S. 1 (2014)... cc ccceeseesccceeessesesecsceesenees 5

Lott v. Trammell

705 F.3d 1167 (10th Cir. 2018)... eee 21

Martinez v. Ryan

566 U.S. 1 (2012)... ee cceccceecceeeeeeneeeees 10, 28-29

Mays v. Hines

592 U.S. 385 (2021)... ce eeeeeeeseeeees 4, 13-14, 23

Michigan v. Long

463 U.S. 1082 (1983) ssssicccasssssnsasceaneseceacsaesvacs caveats 18

Miller-El v. Dretke

545 U.S. 231 (2005)... eeeeeececeecceeenseseseesees 14

Murphy v. Royal

875 F.3d 896 (10th Cir. 2017),

aff'd sub nom. Sharp v. Murphy

591 U.S. 977 (2020)... ceceeeeeseeeeeceeceeeeeeeeeeeeeecs 22

Murray v. Carrier

ATT U.S. 478 (1986 ) ccucosusccrenavenccasssmaswsvexsecsentssaceaeoxs 29

Parker v. Matthews

567 U.S. 87 (2012)... ccceceseccsssesseeceesececccesereres 5

Pope v. Sec’y for Dep't of Corr.

680 F.3d 1271 (11th Cir. 2012)... eceeees 22

Premo v. Moore

G2 U.S. 115 (2011) .ceccccecsecsessecsessesessesecseseesecsesessees 23

Rice v. Collins

546 U.S. 8383 (2006)....... ccc eeeeeeeeeeeeccceeeeeeeecesseeeeees 14

Ruiz v. Stephens

728 F.3d 416 (5th Cir. 2018)... cece eeeeeeeeees 19

Xil

Sears v. Upton

561 U.S. 945 (2010) (per curiam) ...................e eee 23

Sexton v. Beaudreaux

585 U.S. 961 (2018) ...cccccecsecsscecsecsessesessesesseesessesses 4,5

Shinn v. Kayer

592 U.S. 111 (2020)... cee eee eens 4,5, 14, 23-24

Shinn v. Ramtrez

596 U.S. 866 (2022)........ccccccececeeeeeeeeeeeeeeeees 10, 27-29

Shoop v. Twyford

596 U.S. 811 (2022) sssssssccsssssxcczscssasccvascaasouscuezsaanes 28

State v. Weller

185 Wash. App. 913, 344 P.3d 695 (2015) ......ccsee00-- 1

State v. Weller

396 P.3d 337 (2017) scvsssssesssasssveusesescansceseasnsnascsseeswees 8

State v. Weller

352 P.3d 188 (2015) ........c ee eecceeececcecceseeseeeeeceeeseeeeeees 8

Stermer v. Warren

959 F.3d 704 (6th Cir. 2020)... ceceeeeeeeeeeeees 20

Strickland v. Washington

466 U.S. 668 (1984).....e.ses0e. 5, 8-9, 11, 17, 20, 23, 25

Uttecht v. Brown

BH1 U.S. 1 (2007)... eecceccecccsccceesesssesesseseeneees 13

Waddington v. Sarausad

555 U.S. 179 (2O09)...........ceececececceeceeeeeeeeeeeeeeess 13-14

Williams v. Taylor

O29 Wn) Os (ZOO) wscereracereusacoucceepeem emesis 4,14, 27

X1il

Wilson v. Sellers

B84 U.S. 122 (2018) ..ccccccsccecsesesscsesecsessesseseesesseseenee 23

Woodford v. Garceau

538 U.S. 202 (2003) wesuecsscssersesenssvevecssuvcoonsvesescevs 4,13

Woodford v. Visctottt

537 U.S. 19 (2002) (per curiam) ................ 15, 21-22

Woods v. Donald

575 U.S. 312 (2015) (per curiam) ...................eeeeee 25

Yarborough v. Gentry

540 U.S. 1 (2008)... eee eeceecccccccecceceeeeeseeeesenes 4

Constitutional Provisions

U.S. Const. amend. V1.0... cecccccceccceeeeceeeeeseeeeenees 2

Statutes

28 U.S.C. § 125.4(1) scarsssessacevasosaxcnssanmaverenunnensencecnoscesees 2

28 U.S.C. § 2254(d)........... 2-5, 10-13, 19, 22-24, 26-27

28 U.S.C. § 2254(d)(1).... ce eceeeceeeceeeeeeeenes 2,13

28 U.S.C. § 2254(d)(2). oe ccccccecccceeeeeeeeeeeeeeneees 2

28 U.S.C. § 2254(e)(2).ccceccecsssesseseese 3, 5, 10-12, 26-29

28 U.S.C. § 2254(e)(2)(A) .... eee eeeeeeeeeeeeeeeeeeeeeeeeees 3

28 U.S.C. § 2254(e)(2)(A)(1).......eeeeesteececeeeeeeeeeeeeeees 3

28 U.S.C. § 2254(e)(2)(A) (a1) «2... eeeeeeeeecceeeeeeeeeeeeeees 3

28 U.S.C. § 2254 (6) (2) (B) exes evsconasscrcocscumsuamevasmerewoges 3

Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132,

110 Stat. 1214 woe 3-6, 13, 15-16, 21-22

X1V

Rules

Wash. Rules of App. P. 16.11(b).................ccceseeeeeeeees 21

Other Authorities

Black’s Law Dictionary (9th ed. 2009)...............:0000+ 16

Webster’s New International Dictionary

(2d ed. 1954) ooo. eeeeeeeeessesesesesssssesseeeececeececeeeeeeees 16

PETITION FOR A WRIT OF CERTIORARI

Scott Speer, the Superintendent of the

Stafford Creek Corrections Center, and Charlotte

Headley, the Superintendent of the Washington

Corrections Center for Women, respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The memorandum opinion of the United States

Court of Appeals for the Ninth Circuit, and the order

denying rehearing, are unreported. App. la, 2a-7a.

The order of the United States District Court for

the Western District of Washington denying habeas

relief, and the report and recommendation of the

United States Magistrate Judge, are unreported.

App. 10a-1la, 12a-388a. The opinion of the Washington

Court of Appeals denying the personal restraint

petition, and the ruling of the Washington Supreme

Court denying review of that opinion, are unreported.

App. 39a, 40a-50a, 51a-58a. The opinion of the

Washington Court of Appeals on initial direct appeal

is published in part at State v. Weller, 185 Wash.

App. 918, 344 P.38d 695 (2015). App. 59a-82a. The

remaining opinions of the state courts on direct review

are not relevant to the issues raised in this petition.

JURISDICTION

The court of appeals entered its opinion on

September 9, 2024. App. 2a. The court of appeals

denied a timely petition for rehearing and rehearing

en banc on October 11, 2024. App. 1a. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Sixth Amendment to the United States

Constitution provides, in relevant part:

In all criminal prosecutions, the accused

shall enjoy the right .. . to have the Assistance

of Counsel for his defence.

28 U.S.C. § 2254(d) provides in relevant part:

An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any claim

that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim—

(1) 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; or

(2) resulted in a decision that was

based on an unreasonable determination

of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(e)(2) provides in relevant part:

If the applicant has failed to develop

the factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could

not have been previously discovered

through the exercise of due diligence;

and

(B) the facts underlying the claim would

be sufficient to establish by clear and

convincing evidence that but for constitutional

error, no reasonable factfinder would have

found the applicant guilty of the underlying

offense.

INTRODUCTION

The Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214 imposes two significant restraints on the

review of applications for writ of habeas corpus filed

by state prisoners. First, 28 U.S.C. § 2254(d) imposes

a precondition on any grant of relief with respect

to a claim that was adjudicated on the merits in

state court. Second, 28 U.S.C. § 2254(e)(2) bars any

evidentiary development in federal court if the

applicant failed to develop the factual record in state

court. Congress enacted these statutes specifically

to protect the finality of state court judgments by

significantly reforming habeas corpus _ review.

Woodford v. Garceau, 538 U.S. 202, 206 (20038).

AEDPA achieved this reform by expressly

limiting the power of the federal courts to grant relief

to state prisoners. Williams v. Taylor, 529 U.S. 362,

399 (2000). Under 28 U.S.C. § 2254(d), a federal court

may grant relief only if the state court adjudication

of the merits of a claim was contrary to or an

unreasonable application of clearly established

federal law or rested upon an_ unreasonable

determination of the facts, and the _ statutory

deference owed to the state court is “near its apex”

when a claim alleges ineffective assistance of counsel.

Sexton v. Beaudreaux, 585 U.S. 961, 968 (2018). The

review of such claims is “doubly deferential when it is

conducted through the lens of federal habeas.”

Yarborough v. Gentry, 540 U.S. 1, 5-6 (2008).

“Tf this rule means anything, it is that a

federal court must carefully consider all the reasons

and evidence supporting the state court’s decision.”

Mays v. Hines, 592 U.S. 385, 391 (2021). “Any

other approach would allow a federal court to

‘essentially evaluat[e] the merits de novo’ by omitting

inconvenient details from its analysis.” Id. at 392

(alteration in original) (quoting Shinn v. Kayer,

592 U.S. 111, 119 (2020)). Despite this clear statutory

mandate, the lower courts, and particularly the Ninth

Circuit, have demonstrated reluctance to enforce the

statute’s plain language, finding various avenues to

avoid complying with the highly deferential statutory

standard. This Court has had to repeatedly correct

the lower courts, often summarily, to reaffirm the

deference required by AEDPA. See, e.g., Kayer, 592

U.S. 111; Sexton, 585 U.S. 961; Kernan v. Hinojosa,

578 U.S. 412 (2016); Glebe v. Frost, 574 U.S. 21 (2014);

Lopez v. Smith, 574 U.S. 1 (2014); Parker v. Matthews,

567 U.S. 37 (2012).

Here, the Ninth Circuit has once again found a

way to avoid AEDPA’s deferential standards. Much

like in Kernan v. Hinojosa, the circuit court blatantly

refused to apply the statute simply by concluding—in

obvious contradiction to the state court opinions—

that the state courts never adjudicated the merits of

the claim. This Court should grant certiorari and

summarily reverse this decision.

Here, the Washington courts expressly cited

and applied the standard established in Strickland v.

Washington, 466 U.S. 668 (1984), and ruled that the

Wellers did not present the evidence necessary to

prove their claim under that standard. App. 46a-47a;

App. 55a. The Ninth Circuit, however, simply avoided

28 U.S.C. § 2254(d) by determining that the state

courts never adjudicated the merits of the claim.

Based on the state supreme court’s citation to a state

court opinion (a citation absent from the decision of

the state court of appeals), the Ninth Circuit ruled

that both state courts had applied “state procedural

grounds by invoking the inadequate briefing rule of In

re Rice, 828 P.2d 1086 (Wash. 1992),” App. 3a, and

therefore “there is no independent adjudication on the

merits in the state court record for us to consider.”

App. 3a-4a n.1. The Ninth Circuit then determined

that 28 U.S.C. § 2254(e)(2) did not apply because the

Wellers did not “fail to develop” the record in state

court. This contradicts the Ninth Circuit’s own logic,

because the procedural rule allegedly applied by the

state courts rested on the Wellers’ very failure to

present evidence in state court. App. 6a-7a. The Ninth

Circuit’s decision fails to apply the deferential AEDPA

standards, conflicts with the holdings of this Court,

and conflicts with the holdings of other circuit courts.

This Court should summarily reverse.

STATEMENT OF THE CASE

A. The Wellers Were Convicted on Multiple

Counts of Assaulting and Unlawfully

Imprisoning Their Children

The Wellers had six children under their care:

two 16-year-old twins adopted by Sandra Weller

(CW and CG), and four biological children of Jeffrey

or Sandra Weller. App. 60a. In early October 2011,

the twins CW and CG gave their therapist a note

that reported abuse by the Wellers. App. 60a. The

therapist reported the abuse to child protective

services, which investigated the matter. App. 60a.

The investigator visited the residence, interviewed

the Wellers, and determined that the twins were

unsafe. App. 61a. The investigator then called the

police. App. 61a.

Police officers arrived to determine whether to

remove the children from the home. App. 61a. The

officers talked with CW and CG, both of whom told

the officers the Wellers had repeatedly beaten them

with a board. App. 6la. When CG and CW began

looking for the board in the garage, the officers saw in

plain view a board leaning against the wall. App. 62a.

CG and CW told the officers that it was the board the

Wellers used to beat them. App. 62a. After the officers

picked up the board, they could see a groove worn into

the board, as well as discoloration on the board that

appeared consistent with dried blood. App. 62a. Based

upon these observations, the police officers removed

the twins and the other children from the Weller

residence. App. 62a. The prosecution subsequently

charged the Wellers with multiple counts of assault

and unlawful imprisonment for repeatedly beating

the children, depriving them of food, and locking them

in a room. App. 62a-63a.

The evidence at trial showed that, with

Sandra’s encouragement, Jeffrey Weller often hit the

children “with a board, which resulted in beatings so

ferocious that they drew blood and resulted in at least

one broken bone and permanent skin discoloration.”

App. 80a. The evidence also showed that the Wellers

repeatedly forced CG to remain locked in a filthy room

for most of the day. App. 81a. This occurred so often

“that her younger siblings cut a hole in between their

bedroom walls to pass food through to CG. Because

CG was unable to leave her room, her younger

siblings testified that they took it upon themselves to

procure food for her.” App. 81a. A forensic scientist

and treating physician corroborated the children’s

testimony about the extensive abuse and

imprisonment. App. 31a.

The jury convicted the Wellers as charged,

finding that the Wellers acted with deliberate cruelty

and as part of an ongoing pattern of abuse. App. 64a.

The judge sentenced Jeffrey Weller on eight counts of

varying levels of assault and one count of unlawful

imprisonment, and the judge sentenced Sandra

Weller on four counts of assault and one count of

unlawful imprisonment. App. 64a & n.4. Based upon

the aggravating factors, the judge sentenced the

Wellers to 240 months of confinement. App. 64a.

The Washington appellate courts affirmed the

convictions on appeal but remanded for resentencing

after invalidating one of the aggravating factors.

App. 60a; State v. Weller, 352 P.3d 188 (2015) (table).

On remand, the judge again imposed the 240-month

sentences. The Washington Court of Appeals affirmed

the sentences, and the Washington Supreme Court

denied review without comment. State v. Weller, 396

P.3d 337 (2017) (table).

B. The State Courts on Collateral Review

Adjudicated the Merits of the Claim of

Ineffective Assistance of Counsel

The Wellers then filed personal restraint

petitions, which the Washington Court of Appeals

consolidated. App. 51a. Among other things, the

Wellers raised the current claim of ineffective

assistance of counsel.! App. 55a. Denying the claim,

the state court cited to and applied Strickland,

466 U.S. 668. App. 55a. The court ruled, “[t]o establish

ineffective assistance of counsel, [Weller] must

demonstrate that her counsel’s performance fell below

an objective standard of reasonableness and that as a

result of that deficient performance, the result of her

case probably would have been different.” App. 55a

(citing Strickland, 466 U.S. at 687). The court

1 Having consolidated the petitions, the state court

allowed the Wellers to incorporate each other claims, and the

court addressed the merits of the Wellers’ current claim in a

single ruling, referring to it as “Sandra’s Issue 5.” App. 55a.

“presume|[d] strongly that trial counsel’s performance

was reasonable.” App. 55a. The court held, “[Weller]

does not show either deficient performance or

resulting prejudice.” App. 55a. The court added,

“(Weller] does not present evidence of what the other

witnesses would have said, what medical and mental

health experts would have said, that the officer’s

disciplinary history was of an impeaching nature, or

that witnesses improperly commented on the veracity

or credibility of other witnesses.” App. 55a. For this

reason, the court ruled, “Sandra does not demonstrate

ineffective assistance of trial counsel.” App. 55a.

Notably absent from the Washington Court of

Appeals’ decision was any discussion of a state

procedural rule or a citation to the state court opinion

of In re Rice, 118 Wash. 2d 876, 828 P.2d 1086 (1992).

Denying review, the Washington Supreme

Court also expressly cited to and applied the

Strickland standard to evaluate the claim. The

court stated that “[d]Jefense counsel is_ strongly

presumed to have rendered adequate assistance.”

App. 46a-47a (citing Strickland, 466 U.S. at 690). The

state supreme court noted that the Wellers “must

demonstrate that counsel’s representation fell below

an objective standard of reasonableness and that, but

for counsel’s unprofessional performance, there is a

reasonable probability the outcome of the trial would

have been different.” App. 47a. The court also noted

that the Wellers must satisfy both prongs of

Strickland to obtain relief. App. 47a.

Applying Strickland, the Washington Supreme

Court noted, “[t]he Court of Appeals held that

Ms. Weller failed to present sufficient evidence to

10

support her ineffective assistance of counsel claim

because she did not present evidence of what the

other witnesses would have said.” App. 47a. Because

the lower court’s analysis was consistent with the

Washington Supreme Court’s holding regarding a

petitioner's evidentiary burden, the supreme court

found “no basis for further review of this claim.”

App. 47a (citing Jn re Rice, 118 Wash. 2d at 886).

Although the Washington Supreme Court cited Rice,

the court did so for the evidentiary burden necessary

to prevail on the merits of a claim, not only on the

merits of this claim of ineffective assistance of counsel,

but also on the merits of a separate Brady claim. See

App. 44a-45a.

C. The District Court Denied Relief Because

the State Court Adjudication of the Merits

of the Claim Was Not Unreasonable

The Wellers then raised the claim in federal

court, presenting for the first time new evidence not

presented to the state courts. In response, the State

asserted that 28 U.S.C. § 2254(d) barred relief because

the state courts adjudicated the merits of the claim,

and that adjudication was not unreasonable. The

State also moved to strike the new evidence, arguing

that 28 U.S.C. § 2254(d) and (e)(2) precluded it. In

reply, the Wellers argued that they had procedurally

defaulted on the claim in state court, and that as a

result, they could present the new evidence under

Martinez v. Ryan, 566 U.S. 1 (2012) without satisfying

28 U.S.C. § 2254(d) and (e)(2). This Court then issued

Shinn v. Ramirez, 596 U.S. 366 (2022), in light of

which, the magistrate judge recommended that

the district court strike the new evidence and deny

11

the petition. App. 12a-38a. The magistrate judge

determined that the state court had adjudicated the

claim on the merits, and that the state court

adjudication was reasonable. App. 15a-3la. The

district court denied the petition. App. 10a-11a.

D. The Ninth Circuit Ruled that the State

Courts Never Adjudicated the Merits of

the Claim

Reversing the district court’s judgment and

remanding for an evidentiary hearing, the Ninth

Circuit did not apply 28 U.S.C. § 2254(d) or (e)(2).

Instead, the circuit court ruled that the state

courts had applied only “state procedural grounds

by invoking the inadequate briefing rule of In re Rice,

828 P.2d 1086 (Wash. 1992).” App. 3a. Ignoring the

express citation to Strickland by both state courts,

the Ninth Circuit concluded that 28 U.S.C. § 2254(d)

did not apply because “there is no independent

adjudication on the merits in the state court record for

us to consider.” App. 3a-4a n.1. In doing so, the Ninth

Circuit refused to acknowledge the merits decision by

the Washington Court of Appeals, even though that

state court had never cited to Rice. App. 3a-4a n.1.

The Ninth Circuit also determined that 28 U.S.C.

§ 2254(e)(2) did not apply to bar an evidentiary

hearing. Even though the procedural rule allegedly

applied by the state courts rested on the failure of the

Wellers to present evidence to support their claim,

the circuit court found that the Wellers did not “fail

to develop” the evidentiary record in state court.

App. 6a-7a.

12

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s refusal to respect the state

court adjudication and to properly apply 28 U.S.C.

§ 2254(d) and (e)(2) warrants this Court’s review. This

Court should grant the writ of certiorari and

summarily reverse for two reasons.

First, the Ninth Circuit circumvented the

requirements of 28 U.S.C. § 2254(d) by disregarding

the state court adjudication of the merits of the claim.

Despite the state courts’ express citation to the clearly

established standard for reviewing the merits of a

claim of ineffective assistance of counsel, the Ninth

Circuit determined the state courts applied only a

state procedural rule, and did not address the

merits of the claim. The Ninth Circuit thus completely

avoided the deference required by Congress when

reviewing habeas claims. The Ninth Circuit’s decision

conflicts with the holdings of this Court and other

circuit courts.

Second, the Ninth Circuit compounded the

harm in this case by then failing to properly apply

28 U.S.C. § 2254(e)(2). The Ninth Circuit determined

that the Wellers did not “fail to develop” the

evidentiary record in state court. But assuming

the state courts applied a procedural rule as the Ninth

Circuit concluded, the rule necessarily rested upon

the Wellers having failed to present evidence in state

court to support their claim. Thus, under the Ninth

Circuit’s own logic, the Wellers “failed to develop” the

record, and 28 U.S.C. § 2254(e)(2) applies in this case.

13

A. Congress Enacted AEDPA Specifically to

Limit a Federal Court’s Power to Review

Habeas Claims De Novo

AEDPA limits habeas review by imposing a

precondition on the grant of habeas relief with respect

to any claim adjudicated on the merits in the state

courts. 28 U.S.C. § 2254(d). The statute authorizes

the federal court to grant “habeas relief on a claim

‘adjudicated on the merits’ in state court only if the

decision ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as

determined by the Supreme Court of the United

States.” Waddington v. Sarausad, 555 U.S. 179,

190 (2009) (quoting 28 U.S.C. § 2254(d)(1)). AEDPA

protects the State’s sovereign interest in the finality

of judgments by creating “an independent, high

standard to be met before a federal court may issue a

writ of habeas corpus to set aside state-court rulings.”

Uttecht v. Brown, 551 U.S. 1, 10 (2007). Congress

enacted the statute specifically to avoid the significant

harm inflicted by extensive de novo habeas review.

Woodford, 538 U.S. at 206; Harrington v. Richter,

562 U.S. 86, 103 (2011).

Under the statute, “a federal court ‘shall not’

grant a writ of habeas corpus unless the earlier

decision took an ‘unreasonable’ view of the facts

or law.” Mays, 592 U.S. at 391 (quoting 28 U.S.C.

§ 2254(d)). “If this rule means anything, it is that a

federal court must carefully consider all the reasons

and evidence supporting the state court’s decision.”

Id. “Any other approach would allow a federal court to

14

399

‘essentially evaluat[e] the merits de novo’” by omitting

inconvenient details from its analysis.” Id. at 392

(alteration in original) (quoting Kayer, 592 US.

at 119).

A federal court may no longer grant the writ

simply because the court concludes in its independent

judgment that constitutional error has occurred.

Williams, 529 U.S. at 411; Bell v. Cone, 535 U.S. 685,

698-99 (2002). Rather, relief lies only if the state court

adjudication was unreasonable. Sarausad, 555 U.S.

at 190; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

The state court must have reached a legal conclusion

opposite to that reached by this Court, see Williams,

529 U.S. at 405, unreasonably applied the holdings of

the Supreme Court to the facts of the case, see Holland

v. Jackson, 542 U.S. 649, 652 (2004), or made a factual

determination where the evidence is “too powerful

to conclude anything but” the contrary of the

determination reached by the state court, Miller-El v.

Dretke, 545 U.S. 231, 265 (2005).

The statute bars relief unless no “fairminded

jurist” could agree on the correctness of the state

court’s decision. Harrington, 562 U.S. at 101. The

petitioner “must show that the state court’s ruling on

the claim being presented in federal court was so

lacking in justification that there was an error

well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”

Id. at 103. The petitioner bears the heavy burden of

showing “there was no reasonable basis for the state

court to deny relief.” Jd. at 98. “If this standard is

difficult to meet, that is because it was meant to be.”

Id. at 102. While not imposing a complete bar on a

federal court’s relitigation of claims already rejected

15

in state proceedings, the statute does impose a

modified res judicata rule that constrains the federal

court’s authority to substitute its judgment for that of

a state court. Id.

“Section 2254(d) reflects the view that habeas

corpus is a ‘guard against extreme malfunctions in

the state criminal justice systems,’ not a substitute

for ordinary error correction through appeal.”

Harrington, 562 U.S. at 102-03 (quoting Jackson v.

Virginia, 443 U.S. 307, 332 n.5 (1979)). The statute

“demands that state-court decisions be given the

benefit of the doubt.” Woodford v. Visctotti, 5387 U.S.

19, 24 (2002) (per curiam). The readiness to fault

the state court adjudication and to find reversible

constitutional error is inconsistent with AEDPA’s

highly deferential standard of review. Id.; Brown v.

Payton, 544 U.S. 138, 141-47 (2005).

B. The Ninth Circuit Circumvented This

Limitation by Mischaracterizing the State

Court Adjudication of the Merits

AEDPA imposes a presumption that the state

courts adjudicated the merits of the federal

claim. Harrington, 562 U.S. at 99. The federal courts

may not disregard a state court adjudication simply

because the state court did not provide a sufficiently

detailed analysis of the federal law governing a claim.

Johnson v. Williams, 568 U.S. 289, 297-98 (2013). As

this Court explained, “it is not the uniform practice of

busy state courts to discuss separately every single

claim to which a defendant makes even a passing

reference.” Id. at 298. The statute applies if the state

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