                                                                          FILED
                            NOT FOR PUBLICATION
                                                                          MAY 19 2016

                     UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

 ANTHONY LAMAR ALLEN, SR.,

                Plaintiff-Appellant,        No. 14-35615

          v.                                D.C. No 2: 13-cv-00206-TOR

 BOB FERGUSON, Attorney General             MEMORANDUM*
 of the State of Washington,

                Defendant-Appellee.


                     Appeal from the United States District Court
                       for the Eastern District of Washington
                      Tomas O. Rice, District Judge, Presiding

                               Submitted May 4, 2016**
                                 Seattle, Washington

Before: GRABER and MURGUIA, Circuit Judges, and BURY, Senior District
Judge.***

            This case is REVERSED and REMANDED to the United States District



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable David C. Bury, United States Senior District Judge for
the District of Arizona, sitting by designation.
Court for the Eastern District of Washington, to consider, in the first instance, the

merits of sub-claims 2, 8 and 10.

         In sub-claim 2 of the habeas petition, Allen alleged that his trial counsel was

ineffective for failing to investigate his offender score during plea negotiations. This

claim was not procedurally defaulted because the state court’s application of

Washington’s particularized pleading requirement did not constitute an independent

and adequate state procedural reason to deny relief. The state court’s consideration

of the sufficiency of Allen’s Personal Restraint Petition was interwoven with the

merits of his federal constitutional claim. See Stewart v. Smith, 536 U.S. 856, 860

(2002) (per curiam) (cautioning that even if the procedural rule does not require a

ruling on the constitutional merits, if the state nevertheless rested its decision on the

merits, its ruling would be interwoven with federal law).

         This court grants a Certificate of Appealability for sub-claim 8 that trial

counsel was ineffective for failing to object to the prosecutor’s improper closing

arguments misstating Dr. Bass’ testimony and for sub-claim 10 that trial counsel

improperly elicited Allen’s prior convictions on direct examination. Jurists of reason

would debate the merits of sub-claims 2 and 10, and the district court erred in finding

these claims procedurally barred because they were considered on the merits by the

Washington Supreme Court. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).

         REVERSED and REMANDED.

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