Weeden v. Johnson

Decision Date21 April 2017
Docket NumberNo. 14-17366,14-17366
Citation854 F.3d 1063
Parties Sarah WEEDEN, Petitioner–Appellant v. Deborah K. JOHNSON, Respondent–Appellee
CourtU.S. Court of Appeals — Ninth Circuit

854 F.3d 1063

Sarah WEEDEN, Petitioner–Appellant
v.
Deborah K. JOHNSON, Respondent–Appellee

No. 14-17366

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2016 San Francisco, California
Filed April 21, 2017


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

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

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

Dissent by Judge Callahan

OPINION

HURWITZ, Circuit Judge:

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

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

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

BACKGROUND

A Underlying Facts and Trial

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

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

854 F.3d 1067

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

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

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

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

Phone records from that evening confirm that: (1) Chand called Weeden repeatedly until the shooting, (2) Weeden and Moore exchanged calls until approximately twenty minutes before the shooting, (3) Weeden was on the phone with Hill until the shooting, and (4) Hill called Moore multiple times before and after the shooting. Neither Hill nor Weeden was near the park. Months later, Weeden sent text messages to Moore acknowledging that she knew about the robbery plan in advance but denying that it was her idea.

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

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

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

B. The New Trial Motion

Represented by new counsel, Weeden moved for a new trial, claiming that her trial counsel was ineffective for failing to investigate or present psychological evidence. In support of the motion, Weeden submitted a psychological report from Lisa Perrine, Ph.D., who evaluated Weeden after the verdict. Dr. Perrine opined that although Weeden could comprehend the concept of robbery, "it is extremely unlikely she would intend to commit robbery or knowingly participate in one," and "she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated." Dr. Perrine also found Weeden to be "quite passive and vulnerable to being manipulated by others," and concluded she

854 F.3d 1068

had "serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level)," "well below average language skills," and "a strong tendency to miss important environmental cues."

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

Q: You didn't know what the doctor would conclude, though. Is that right?

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

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

C. Direct Appeal

The California Court of Appeal affirmed Weeden's conviction. The court disposed of Weeden's ineffective assistance claim in four paragraphs. The first paragraph recited the familiar legal standard for establishing ineffective assistance of counsel set forth in Strickland v. Washington , 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Melonson , Nos. C061352, C061800, 2013 WL 1987240, at *21 (Cal. Ct. App. May 15, 2013), as modified on denial of reh'g (June 14, 2013). The second paragraph concluded that counsel made a "reasonable tactical decision" not to seek a psychological examination because an examination "might undermine" his trial strategy:

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

Id. The third paragraph acknowledged Weeden's argument that Dr. Perrine's...

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