NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JEFFREY WELLER, No. 23-35459
Petitioner-Appellant, D.C. No. 3:20-cv-05861-RAJ
v. MEMORANDUM* RONALD HAYNES,
Respondent-Appellee.
SANDRA WELLER, No. 23-35460
Petitioner-Appellant, D.C. No. 3:20-cv-05862-RAJ-TLF v.
DEBORAH JO WOFFORD,
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Argued and Submitted August 21, 2024 Seattle, Washington
Before: HAWKINS, McKEOWN, and DE ALBA, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Petitioners Jeffrey and Sandra Weller (“the Wellers”) appeal the district
court’s denial of their consolidated petition for habeas corpus alleging ineffective
assistance of trial counsel (“IAC”). We have jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253, reverse the district court’s denial of the petition, and remand with
instructions to conduct an evidentiary hearing.
1. In the last-reasoned state court decision, the Washington Supreme Court
Commissioner “clearly and expressly,” Harris v. Reed, 489 U.S. 255, 263 (1989)
(quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)), denied the Wellers’
petition on “independent and adequate,” Coleman v. Thompson, 501 U.S. 722,
729–30 (1991), state procedural grounds by invoking the inadequate briefing rule
of In re Rice, 828 P.2d 1086 (Wash. 1992). See Corbray v. Miller-Stout, 469 F.
App’x 558, 560 (9th Cir. 2012) (collecting state court cases to establish the
adequacy of the Rice rule); see also Tamplin v. Muniz, 894 F.3d 1076, 1082 (9th
Cir. 2018) (“Under AEDPA, we review the last reasoned state court opinion.”
(internal quotation and citation omitted) (cleaned up)).1
1 Respondents urge us to look past the Washington Supreme Court Commissioner’s ruling and consider the decision of the Washington Court of Appeals as an independent adjudication of the merits of the Wellers’ IAC claim that triggers review under the deferential standard of 28 U.S.C. § 2254(d). But looking past the last reasoned state court decision in this case, even if it were proper, would not yield a different result. While the Court of Appeals’ decision did not “clearly and expressly” cite Rice as the grounds for its denial of the Wellers’ petition, the Supreme Court Commissioner construed that decision as imposing a procedural bar because its reasoning was “consistent with this court’s
2 Citing, Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022), the district court
erroneously concluded that the Rice rule was not independent of federal law. But
Ochoa has no application to this case. It merely reaffirmed what the Supreme
Court and Ninth Circuit have held since 2011: that a summary denial “on the
merits” from the California Supreme Court constitutes an adjudication on the
merits within the meaning of 28 U.S.C. § 2254(d). See id. (citing Ninth Circuit
cases); Cullen v. Pinholster, 563 U.S. 170, 188 n.12 (2011). This case involves
neither California law nor a summary denial; nor is there a decision expressly “on
the merits.” Rather, the Washington Supreme Court invoked a procedural rule that
“enabl[es] courts to avoid the time and expense of [an evidentiary hearing] when
the petition, though facially adequate, has no apparent basis in provable fact”
because the petitioner has not “present[ed] evidence showing that his factual
allegations are based on more than speculation, conjecture, or inadmissible
hearsay.” Rice, 828 P.2d at 1092. In such cases, Washington courts refuse to
address the merits of the petition. In re Cook, 792 P.2d 506, 512 (Wash. 1990).
Accordingly, because the Washington Supreme Court’s application of the Rice rule
did not require an “antecedent ruling” on the merits of the Wellers’ IAC claim, it
holding in Rice regarding a petitioner’s evidentiary burden.” “When interpreting state law, we are bound to follow the decisions of the state’s highest court.” Paulson v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002). Accordingly, there is no independent adjudication on the merits in the state court record for us to consider.
3 was independent of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir.
2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
2. To overcome their procedural default, the Wellers must demonstrate
“cause for the default and prejudice from a violation of federal law.” Martinez v.
Ryan, 566 U.S. 1, 9–10 (2012). Because the Wellers did not have counsel during
their state post-conviction proceedings, and because Washington law requires
petitioners to raise IAC claims for the first time on collateral review, the Wellers
can establish cause for their default. See Rodney v. Filson, 916 F.3d 1254, 1260
(9th Cir. 2019) (“[A] petitioner who was not represented by post-conviction
counsel in his initial-review collateral proceeding is not required to make any
additional showing of prejudice over and above the requirement of showing a
substantial trial-level IAC claim.”); Woods v. Sinclair, 764 F.3d 1109, 1137 (9th
Cir. 2014) (citing State v. McFarland, 899 P.2d 1251, 1257 (Wash. 1995))
(recognizing that Washington law effectively prohibits raising IAC claims on
direct appeal). The Wellers, however, still must demonstrate prejudice by showing
that their IAC claim is “substantial,” or, in other words, “has some merit.”
Martinez, 566 U.S. at 14. If they can, then their underlying IAC claim will receive
de novo review. See Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)
(“When it is clear . . . that the state court has not decided an issue, we review that
question de novo.”). We remand for the district court to address the question of
4 prejudice and, if necessary, the merits of the underlying IAC claim in the first
instance. See Woods, 764 F.3d at 1137–38 (holding that “the substantiality and
ineffectiveness issues should be addressed in the first instance by the district court”
due to their “highly fact- and record-intensive” nature (quoting Detrich v. Ryan,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JEFFREY WELLER, No. 23-35459
Petitioner-Appellant, D.C. No. 3:20-cv-05861-RAJ
v. MEMORANDUM* RONALD HAYNES,
Respondent-Appellee.
SANDRA WELLER, No. 23-35460
Petitioner-Appellant, D.C. No. 3:20-cv-05862-RAJ-TLF v.
DEBORAH JO WOFFORD,
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Argued and Submitted August 21, 2024 Seattle, Washington
Before: HAWKINS, McKEOWN, and DE ALBA, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Petitioners Jeffrey and Sandra Weller (“the Wellers”) appeal the district
court’s denial of their consolidated petition for habeas corpus alleging ineffective
assistance of trial counsel (“IAC”). We have jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253, reverse the district court’s denial of the petition, and remand with
instructions to conduct an evidentiary hearing.
1. In the last-reasoned state court decision, the Washington Supreme Court
Commissioner “clearly and expressly,” Harris v. Reed, 489 U.S. 255, 263 (1989)
(quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)), denied the Wellers’
petition on “independent and adequate,” Coleman v. Thompson, 501 U.S. 722,
729–30 (1991), state procedural grounds by invoking the inadequate briefing rule
of In re Rice, 828 P.2d 1086 (Wash. 1992). See Corbray v. Miller-Stout, 469 F.
App’x 558, 560 (9th Cir. 2012) (collecting state court cases to establish the
adequacy of the Rice rule); see also Tamplin v. Muniz, 894 F.3d 1076, 1082 (9th
Cir. 2018) (“Under AEDPA, we review the last reasoned state court opinion.”
(internal quotation and citation omitted) (cleaned up)).1
1 Respondents urge us to look past the Washington Supreme Court Commissioner’s ruling and consider the decision of the Washington Court of Appeals as an independent adjudication of the merits of the Wellers’ IAC claim that triggers review under the deferential standard of 28 U.S.C. § 2254(d). But looking past the last reasoned state court decision in this case, even if it were proper, would not yield a different result. While the Court of Appeals’ decision did not “clearly and expressly” cite Rice as the grounds for its denial of the Wellers’ petition, the Supreme Court Commissioner construed that decision as imposing a procedural bar because its reasoning was “consistent with this court’s
2 Citing, Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022), the district court
erroneously concluded that the Rice rule was not independent of federal law. But
Ochoa has no application to this case. It merely reaffirmed what the Supreme
Court and Ninth Circuit have held since 2011: that a summary denial “on the
merits” from the California Supreme Court constitutes an adjudication on the
merits within the meaning of 28 U.S.C. § 2254(d). See id. (citing Ninth Circuit
cases); Cullen v. Pinholster, 563 U.S. 170, 188 n.12 (2011). This case involves
neither California law nor a summary denial; nor is there a decision expressly “on
the merits.” Rather, the Washington Supreme Court invoked a procedural rule that
“enabl[es] courts to avoid the time and expense of [an evidentiary hearing] when
the petition, though facially adequate, has no apparent basis in provable fact”
because the petitioner has not “present[ed] evidence showing that his factual
allegations are based on more than speculation, conjecture, or inadmissible
hearsay.” Rice, 828 P.2d at 1092. In such cases, Washington courts refuse to
address the merits of the petition. In re Cook, 792 P.2d 506, 512 (Wash. 1990).
Accordingly, because the Washington Supreme Court’s application of the Rice rule
did not require an “antecedent ruling” on the merits of the Wellers’ IAC claim, it
holding in Rice regarding a petitioner’s evidentiary burden.” “When interpreting state law, we are bound to follow the decisions of the state’s highest court.” Paulson v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002). Accordingly, there is no independent adjudication on the merits in the state court record for us to consider.
3 was independent of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir.
2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
2. To overcome their procedural default, the Wellers must demonstrate
“cause for the default and prejudice from a violation of federal law.” Martinez v.
Ryan, 566 U.S. 1, 9–10 (2012). Because the Wellers did not have counsel during
their state post-conviction proceedings, and because Washington law requires
petitioners to raise IAC claims for the first time on collateral review, the Wellers
can establish cause for their default. See Rodney v. Filson, 916 F.3d 1254, 1260
(9th Cir. 2019) (“[A] petitioner who was not represented by post-conviction
counsel in his initial-review collateral proceeding is not required to make any
additional showing of prejudice over and above the requirement of showing a
substantial trial-level IAC claim.”); Woods v. Sinclair, 764 F.3d 1109, 1137 (9th
Cir. 2014) (citing State v. McFarland, 899 P.2d 1251, 1257 (Wash. 1995))
(recognizing that Washington law effectively prohibits raising IAC claims on
direct appeal). The Wellers, however, still must demonstrate prejudice by showing
that their IAC claim is “substantial,” or, in other words, “has some merit.”
Martinez, 566 U.S. at 14. If they can, then their underlying IAC claim will receive
de novo review. See Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)
(“When it is clear . . . that the state court has not decided an issue, we review that
question de novo.”). We remand for the district court to address the question of
4 prejudice and, if necessary, the merits of the underlying IAC claim in the first
instance. See Woods, 764 F.3d at 1137–38 (holding that “the substantiality and
ineffectiveness issues should be addressed in the first instance by the district court”
due to their “highly fact- and record-intensive” nature (quoting Detrich v. Ryan,
740 F.3d 1237, 1262 (9th Cir. 2013) (Watford, J., concurring), overruled on other
grounds by Shinn v. Ramirez, 596 U.S. 366 (2022))).
3. On remand, the district court should conduct an evidentiary hearing
because the Wellers did not fail to develop the state court record within the
meaning of the opening clause of 28 U.S.C. § 2254(e)(2). The district court erred
by concluding otherwise, faulting the Wellers for not requesting funds in state
court to hire an expert. By consistently requesting appointment of an attorney,
seeking a state court evidentiary hearing, and supplying the state court with
declarations, letters, police reports, and medical records to support their claim, the
Wellers “made a reasonable attempt, in light of the information available at the
time, to investigate and pursue [their] claims in state court.” Williams v. Taylor,
529 U.S. 420, 435 (2000); see also Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir.
2014) (“A petitioner who has previously sought and been denied an evidentiary
hearing has not failed to develop the factual basis of his claim.”); Libberton v.
Ryan, 583 F.3d 1147, 1165 (9th Cir. 2009) (noting pro se petitioner’s diligence in
providing relevant, if incomplete, evidence to state court despite the denial of a
5 request for an evidentiary hearing and funds for an investigator).
Moreover, the Washington Supreme Court’s invocation of the Rice rule does
not bear on our assessment of whether the Wellers were diligent in developing the
state court record. The Rice rule applies equally to those petitioners who
negligently fail to present evidence to support their petitions and to those
petitioners who are unable to present supporting evidence because of some
impediment. See 828 P.2d at 1092–93. The Supreme Court, however, has
explicitly rejected this kind of no-fault diligence standard in the context of §
2254(e)(2)’s opening clause. Williams, 529 U.S. at 436. The Wellers’ pro se
efforts to augment the state court record from prison demonstrated diligence, and
there is no indication that their lack of success was a product of negligence. See
Martinez, 566 U.S. at 12 (“While confined to prison, the prisoner is in no position
to develop the evidentiary basis for a claim of ineffective assistance, which often
turns on evidence outside the trial record.”). For this reason, too, Shinn v. Ramirez
does not bar an evidentiary hearing. See 596 U.S. at 383 (“[A] state prisoner is
responsible for counsel’s negligent failure to develop the state postconviction
record.” (emphasis added)).
4. The district court’s order adopting the magistrate judge’s report and
recommendation was sufficient to satisfy its obligation to conduct de novo review
pursuant to 28 U.S.C. § 636(b)(1)(C). While the district court did not explicitly
6 indicate the standard of review it used, it stated that it “reviewed the report and
recommendation, the petition for writ of federal habeas corpus relief and the
remaining record.” Under our precedent, this was sufficient. See N. Am. Watch
Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 1986) (presuming
that the district court conducted de novo review when it indicated that it reviewed
the report and recommendation, the pleadings, and the record, even though it did
not explicitly use the term “de novo”).
REVERSED AND REMANDED.