Sanders

concurring in part, dissenting in part.

I concur in my colleagues’ decision to grant Sanders’ habeas petition with respect to his conviction for Unlawful Discharge. I differ, however, as to the validity of his conviction of Felon in Possession of a Firearm.

My colleagues properly state the legal standard for determining prejudice: so long as there is a reasonable probability that the outcome would have been different, the petitioner has established prejudice under clearly established federal law. We differ on the application of that standard to Sanders’ Felon in Possession Conviction. Namely, it seems implausible to *782 me that the jury would have convicted Sanders on the Felon in Possession count had it credited Smith’s testimony and chosen not to convict on the Unlawful Discharge count.

Had the jury credited Smith’s testimony, it would have had reason to believe that Piotter instigated the fight with Sanders. It also would have had before it independent evidence supporting Sanders’ assertion that Piotter left the apartment in possession of a razor blade which he had drawn and threatened to use during the course of the fight. Assuming that the jury might have believed that…

MEMORANDUM *

Petitioner Richard Sanders appeals from the district court’s denial of his petition for writ of habeas corpus. Sanders was convicted in Oregon state court of the crimes of Felon in Possession of a Firearm and Unlawful Discharge of a Firearm. He claims that he received ineffective assistance of counsel because his trial attorney, *780 Peter Parnickis, failed to interview or call as a witness Velma Smith, the only non-party eyewitness to the alleged crimes. We apply AEDPA’s deferential standard of review, under which we may grant habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... was based on an unreasonable determination of the facts,” 28 U.S.C. § 2254 (d). We affirm in part and reverse in part.

1. With respect to Sanders’ conviction for Unlawful Discharge, we conclude that the state court’s application of clearly established federal law was “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003). The alleged unlawful discharge took place shortly after a…