Nelson v. Washington

concurring.

I concur in the result.

MEMORANDUM **

Arthur Nelson appeals the denial of his habeas petition based on a claim of ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we review the district court’s denial of the petition de novo. Taylor v. Maddox, 366 F.3d 992, 997 (9th Cir.2004). We reverse and remand to the district court with instructions to grant the petition.

Nelson’s ineffective assistance of counsel claim consists of two related strands: that his appointed counsel, Thomas Earl, was deficient for failing to investigate and challenge the state’s evidence that the child had been sexually abused (i.e., that any crime had been committed), and that the attorney was deficient for failing to investigate and present evidence that someone other than Nelson was the perpetrator of the abuse. The State argues that the first strand of Nelson’s ineffective assistance claim is procedurally defaulted. Nelson argues that it was not defaulted and, alternatively, that it can be considered under another theory. We need not resolve that issue because we are persuaded that Nelson was sufficiently prejudiced by the ineffective assistance he received regarding the identity of the…