                     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.
