Willie Sampson v. Jack Palmer

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 06 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

WILLIE SAMPSON, No. 14-15648

Petitioner - Appellant, D.C. No. 3:11-cv-00019-LRH-

WGC

v.

JACK PALMER; NEVADA MEMORANDUM*

ATTORNEY GENERAL,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, Senior District Judge, Presiding

Argued and Submitted August 12, 2015 San Francisco, California

Before: KOZINSKI and TALLMAN, Circuit Judges, and RAYES,** District Judge.

Having determined that petitioner’s counsel was deficient for failing to

present Dr. Racoma’s testimony, the Nevada Supreme Court unreasonably applied

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Douglas L. Rayes, District Judge for the United States District Court for the District of Arizona, sitting by designation. page 2 Strickland v. Washington, 466 U.S. 668 (1984), in concluding that petitioner

wasn’t prejudiced by counsel’s deficiency.

1. The…

MEMORANDUM **

Having determined that petitioner’s counsel was deficient for failing to present Dr. Racoma’s testimony, the Nevada Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in concluding that petitioner wasn’t prejudiced by counsel’s deficiency.

1. The Nevada Supreme Court concluded that there was no reasonable probability that the outcome of the trial would have changed if Dr. Racoma had been *478 permitted to testify. Specifically, the court found that the jury had already heard whether oppositional defiant disorder (ODD) “could have affected [P.T.’s] ability to be truthful.” Although the jury heard that ODD can affect a child’s truthfulness, the jury did not hear that P.T. had been diagnosed with ODD. Dr. Racoma would have testified about that.

Moreover, the discussion at tidal of whether ODD affects truthfulness wasn’t clear. During cross examination, petitioner’s counsel asked Dr. Vergara, the emergency-room physician who treated P.T., whether her determination of P.T.’s truthfulness might change if she were informed that P.T. suffers fi’om ODD. Dr. Vergara said it wouldn’t necessarily change. Almost…

dissenting:

We stumble over the same stone yet again. In reversing the Nevada Supreme Court’s denial of habeas relief following a two-day evidentiary hearing, our court ignores the deferential provisions of the An-titerrorism and Effective Death Penalty Act (AÉDPA), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 *479 U.S.C. § 2241 et seq.). Because the majority impermissibly substitutes its own opinion for the Nevada Supreme Court’s finding of no prejudice under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), I respectfully dissent.

The issue before us is straightforward: Whether the Nevada Supreme Court rendered a decision that was contrary to, or involved an unreasonable application of, the Strickland standard. See 28 U.S.C. § 2254 (d)(1). Under the oft-cited Strick- . land test, a petitioner is required to show (1) trial counsel’s performance was deficient, and (2) that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . I agree with my colleagues’ finding with respect to the first prong — that the Nevada Supreme Court reasonably found Sampson’s trial counsel deficient. However, I…