Robert Leeds v. Perry Russell ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MARC LEEDS, No. 21-16813
Petitioner-Appellee, D.C. No.
3:15-cv-00261-
v. LRH-CLB
PERRY RUSSELL; ATTORNEY
GENERAL FOR THE STATE OF OPINION
NEVADA,
Respondents-Appellants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted April 10, 2023
San Francisco, California
Filed July 26, 2023
Before: Richard A. Paez, Richard R. Clifton, and Holly A.
Thomas, Circuit Judges.
Opinion by Judge Paez
2 LEEDS V. RUSSELL
SUMMARY *
Habeas Corpus
The panel affirmed the district court’s judgment granting
Robert Leeds’s 28 U.S.C. § 2254 habeas corpus petition
challenging his Nevada first-degree murder conviction for
killing William Scarborough.
Although Leeds resided at the house where the murder
occurred, the prosecution presented a felony-murder theory
at trial, alleging that Leeds committed the murder during the
course of a burglary because he entered the home’s garage
as he struggled with Scarborough. Leeds’s trial counsel
failed to argue that a person cannot burglarize his own home.
The jury’s general verdict form did not specify whether the
jury relied on the felony-murder theory or the State’s
alternative theory of willful, deliberate, and premeditated
murder to convict Leeds of first-degree murder.
Leeds sought state habeas relief, but his post-conviction
counsel failed to allege in the petition that trial counsel was
ineffective for failing to argue that Leeds could not
burglarize his own home. The claim was therefore
procedurally defaulted under Nevada law.
Applying Martinez v. Ryan, 566 U.S. 1 (2012), the
district court excused Leeds’s procedural default on the basis
of post-conviction counsel’s ineffective assistance and the
resulting prejudice to Leeds. The district court then granted
relief on the merits of the underlying trial-level ineffective
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEEDS V. RUSSELL 3
assistance of counsel (IAC) claim, finding that Leeds’s trial
counsel performed ineffectively under Strickland v.
Washington, 466 U.S. 668 (1984), by failing to raise the
burglary argument and prevent the use of the felony-murder
theory.
The panel agreed with the district court.
The panel held that Leeds established a basis to excuse
the procedural default of his claim because (1) Leeds’s trial-
counsel IAC claim is substantial and therefore satisfies
Martinez’s prejudice requirement; and (2) Leeds’s post-
conviction counsel provided ineffective assistance under
Strickland, meeting the Martinez cause requirement.
The panel held that Leeds is entitled to relief on the
merits because (1) trial counsel’s failure to raise the
objectively important burglary argument constituted
deficient performance; and (2) there is a reasonable
probability that the result of the proceeding would have been
different without the use of the felony-murder rule, such that
the deficient performance prejudiced Leeds.
4 LEEDS V. RUSSELL
COUNSEL
Michael J. Bongard (argued), Deputy Attorney General,
Office of the Nevada Attorney General; Ely, Nevada; Sheryl
Serreze, Deputy Attorney General; Aaron D. Ford, Attorney
General of Nevada; Office of the Nevada Attorney General;
Carson City, Nevada; for Respondents-Appellants.
Alicia R. Intriago (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender,
District of Nevada; Federal Public Defender’s Office of Las
Vegas; Las Vegas, Nevada; for Petitioner-Appellee.
OPINION
PAEZ, Circuit Judge:
The State of Nevada appeals the grant of Petitioner
Robert Leeds’s 28 U.S.C. § 2254 petition for a writ of habeas
corpus. In 2006, a Nevada jury convicted Leeds of first-
degree murder for killing William Scarborough. Although
Leeds resided at the house where the murder occurred, the
prosecution presented a felony-murder theory at trial,
alleging that Leeds committed the murder during the course
of a burglary because he entered the home’s garage as he
struggled with Scarborough. Leeds’s trial counsel failed to
argue that a person cannot burglarize his own home. The
jury’s general verdict form did not specify whether the jury
relied on the felony-murder theory or the State’s alternative
theory of willful, deliberate, and premeditated murder to
convict Leeds of first-degree murder.
Leeds later sought state habeas relief, but his post-
conviction counsel failed to allege in the petition that trial
LEEDS V. RUSSELL 5
counsel was ineffective for failing to argue that Leeds could
not burglarize his own home. The claim was therefore
procedurally defaulted under Nevada law. Leeds then filed
a habeas petition in federal district court, which the court
ultimately granted. The court, applying Martinez v. Ryan,
566 U.S. 1 (2012), first excused Leeds’s procedural default
on the basis of post-conviction counsel’s ineffective
assistance and the resulting prejudice to Leeds. The court
then granted relief on the merits of the underlying trial-level
ineffective assistance of counsel claim, finding that Leeds’s
trial counsel performed ineffectively under Strickland v.
Washington, 466 U.S. 668 (1984), by failing to raise the
burglary argument and prevent the use of the felony-murder
theory.
We agree with the district court and affirm. Leeds has
established a basis to excuse the procedural default of his
claim, and he is further entitled to relief because his trial
counsel provided constitutionally ineffective assistance.
I.
1.
Petitioner Robert Leeds and Sally Lane married in 1985.
Throughout their marriage, Leeds experienced mental
illness, including severe depression and bipolar disorder. In
2000, Lane moved to Canada to attend veterinary school.
Leeds moved in with Lane’s mother, but he became deeply
depressed and fell into a “comatose” state. After he had a
falling out with his mother-in-law, he joined his wife in
Canada. Four years later, Lane needed money for veterinary
school, but her family no longer approved of Leeds. Her
brother conditioned his financial assistance on her agreeing
to divorce Leeds. Lane filed for divorce in 2004. The
divorce became final in April 2005. Leeds and Lane,
6 LEEDS V. RUSSELL
however, continued to live together, share a dog and a car,
and have a “cooperative” relationship.
Lane graduated from veterinary school in June 2005. At
that time, Lane had some concerns about her and Leeds’s
relationship, but she continued to feel connected to Leeds.
The pair decided to move to Las Vegas together, where they
leased a home on Evening Song Avenue (“Evening Song
house”). Although only Lane’s name was on the lease, there
was “no doubt” that Leeds would be living there too. Leeds
never had a key to the house, but he did not need one because
they always left the back door open.
In September 2005, Lane started working at an animal
shelter and met William Scarborough, who euthanized
animals that had to be put down. Scarborough had been in
prison and had recovered from an alcohol and drug
addiction. Lane told Leeds about Scarborough, and Leeds
cautioned her to keep her distance given Scarborough’s job
and background. Leeds also worried Lane would begin an
emotional affair with Scarborough, as she was “vulnerable”
at work because she loved animals and did not like seeing
them euthanized. In mid-October, Scarborough and Lane
started rescuing some of the animals that were to be
euthanized. They became close and started a romantic
relationship towards the end of October. Also in October,
Lane told Leeds “a couple times” that “it would be better if
[they] were separated for a while,” but she did not leave him,
and he did not move out.
In November, Lane’s family planned to visit for
Thanksgiving. Because her family was unaware that Leeds
was still in her life, Lane told Leeds that they needed to move
his belongings out of the Evening Song house and that he
could not stay there while her family visited. The “only
LEEDS V. RUSSELL 7
purpose” Lane had in asking Leeds to leave for the holiday
was that her family not find out she still lived with him.
Leeds had started working as an English teacher, so Lane
took him to his office “to stay there temporarily,” beginning
on Wednesday of Thanksgiving week. Shortly before the
holiday, Leeds ran out of his psychiatric medications.
Lane spent Thanksgiving with her brother and
Scarborough, though her mother ultimately did not visit.
The day after Thanksgiving, Scarborough helped Lane buy
furniture and move it into the Evening Song house. While
they were out to dinner that night, Leeds called Lane’s
mother and learned that she was not visiting Lane. Leeds
went to the Evening Song house around 11 p.m. and let
himself in through the back door as usual. Leeds went
upstairs, saw the new futon bed, and “lost it” because he “felt
[like he] was walking in on a love nest in [his] own house.”
Around 2 a.m., Lane and Scarborough returned to the house.
Lane described Leeds as “devastated” and “hysterical.”
Leeds also said he was sobbing and felt like he was in a
nightmare. Leeds called 911, saying “something to the
effect that there is a convicted felon . . . [who] works at my
wife’s office[] and he has been . . . conning her all along.”
Lane also called 911 at Scarborough’s direction, saying that
her ex-husband was in the house.
The police arrived and separated Lane, Scarborough, and
Leeds. Lane told police that Leeds was “no longer staying
there,” “was physically out of the house, but he was . . . not
told he couldn’t come back,” and that Lane was hoping
Leeds would find his own place. The police explained that
Leeds “had the right to stay because he’d been living there”
and that Lane would need to get an eviction notice. Leeds
told the police he felt like dying because he was losing his
wife, and the police offered to take him back to his office to
8 LEEDS V. RUSSELL
“sleep this off.” Leeds went to his office, and Scarborough
stayed at the Evening Song house with Lane. Leeds called
the house twice, but Scarborough answered and said Lane
did not want to talk to him.
The next morning, Leeds came to the house and spoke to
Lane from the front porch. Leeds told Lane he was sorry for
his behavior the night before. He was apologetic. He was
holding cash, saying it was for rent. Leeds said he was going
to Florida to be with his family and that they could reconcile.
Lane was crying and “weakening,” and Scarborough told her
to “stay strong” in her decision to separate.
Ultimately, Scarborough offered Leeds a ride to the
airport, which he accepted. The men got in Scarborough’s
truck, which was in the driveway. Leeds then asked to hug
his dog, to hug Lane, to give Lane the money, to use a cell
phone, and to have a drink of water. At some point,
Scarborough became frustrated and got out of the truck.
Scarborough and Lane went up toward the garage to talk,
and Leeds remained near the truck on the phone with his
family.
Suddenly, Lane saw Leeds drop the phone and rush
toward Scarborough. The two men fell to the ground,
struggling, and rolled into the garage. Lane thought Leeds
was punching Scarborough, and she started hitting Leeds in
the back, trying to make him stop. Lane’s hand was injured.
She then saw blood on Scarborough’s face and saw Leeds
holding a knife, which Leeds testified he grabbed from
Scarborough. Leeds stabbed Scarborough in the chest and
said something to the effect of: “Die like the animals you
kill.” Scarborough fell to the ground. Leeds then went to
the truck, picked up a tire iron, came back, and hit
LEEDS V. RUSSELL 9
Scarborough in the head around eight times. 1 Leeds then left
through the gate of the housing community and attempted
suicide by cutting his wrists.
2.
The State of Nevada charged Leeds with murder with use
of a deadly weapon; attempted murder with use of a deadly
weapon; battery with use of a deadly weapon resulting in
substantial bodily harm; and burglary while in possession of
a deadly weapon. The burglary charge was included because
the prosecutor argued that Leeds intended “to assault, batter,
or murder” Scarborough when the two men entered the
garage during their struggle. At trial, the jury was instructed
that they could convict Leeds of first-degree murder based
on either a felony-murder theory (because of the burglary)
or a willful, deliberate, and premeditated theory. In closing
argument, the prosecutor explained that it did not matter if
the jurors agreed on one theory: they could convict Leeds of
first-degree murder as long as they all thought one of the two
theories applied.
The jury convicted Leeds on all four counts, although the
court later dismissed the battery count. The verdict form
does not specify which theory of murder the jury relied upon
to convict Leeds of first-degree murder. For the first-degree
murder count, Leeds was sentenced to twenty years to life,
with a consecutive twenty years to life for the use of a deadly
weapon. For the attempted murder count, he was sentenced
to six to twenty years, with a consecutive term of six to
twenty years for the use of a deadly weapon. Finally, for the
burglary count, Leeds was sentenced to a concurrent term of
1
At trial, a medical examiner testified that the cause of death was the
stab wounds to the chest, not the impact of the tire iron.
10 LEEDS V. RUSSELL
four to thirteen years. Leeds appealed his convictions, but
the Nevada Supreme Court ultimately affirmed. See Leeds
v. State, 281 P.3d 1194 (Nev. 2009) (unpublished table
opinion).
3.
Leeds then initiated state habeas proceedings. In
Nevada, a post-conviction collateral proceeding is the first
opportunity to raise ineffective assistance of counsel claims.
See Gibbons v. State, 634 P.2d 1214, 1216 (Nev. 1981)
(concluding that the “appropriate vehicle for presenting a
claim of ineffective assistance of counsel is through post-
conviction relief”). Leeds first filed a pro se habeas petition,
which was denied. The Nevada Supreme Court reversed and
remanded with instructions to appoint counsel. In July 2013,
Leeds’s state-appointed post-conviction counsel (“PCC”)
filed a supplemental petition alleging multiple errors by trial
counsel, but the petition did not include a claim that trial
counsel was ineffective for failing to challenge the felony-
murder theory on the ground that Leeds could not burglarize
his own home (the “burglary theory”). The state district
court denied his petition.
Leeds filed a timely appeal to the Nevada Supreme Court
in September 2014. For the first time, PCC asserted the
burglary theory, arguing that the felony-murder rule was
improperly applied, and citing United States Supreme Court
precedent mandating reversal in such situations. See Yates
v. United States, 354 U.S. 298, 312 (1957) (a verdict should
be set aside “in cases where the verdict is supportable on one
ground, but not on another, and it is impossible to tell which
ground the jury selected”), overruled on other grounds by
Burks v. United States, 437 U.S. 1 (1978). For support, PCC
cited the then-recently decided Nevada Supreme Court case
LEEDS V. RUSSELL 11
State v. White, 330 P.3d 482 (Nev. July 10, 2014), which
made clear that a person cannot burglarize his own home, id.
at 483. The Nevada Supreme Court, however, affirmed the
denial of the habeas petition and explicitly declined to
consider the burglary theory because this “ground for relief
was not raised in Leeds’ post-conviction petition for a writ
of habeas corpus or argued in the district court below.”
Because Leeds failed to raise the burglary theory before the
state district court, the claim was procedurally defaulted and
was never reviewed by a state court. See Nev. Rev. Stat.
§ 34.810(1)(b).
4.
Leeds next filed a petition for habeas relief in federal
district court under 28 U.S.C. § 2254. The State filed a
motion to dismiss, which was granted in part and denied in
part. The parties then briefed the remaining claims.
Relevant here is Ground Two, which alleged that “[t]rial
counsel was ineffective for failing to challenge the burglary
charge and felony murder theory on the ground that Mr.
Leeds could not burglarize his own home.”
The district court granted habeas relief as to Ground Two
in September 2021. It did not address the remaining
grounds. The court found that Leeds’s procedural default of
Ground Two was excused under Martinez. The court then
addressed the merits of the claim, finding that trial counsel
had performed ineffectively under Strickland. The State
timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 2253. Leeds’s
habeas petition is governed by the Anti-Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2254 (“AEDPA”).
12 LEEDS V. RUSSELL
We review de novo the district court’s decision on the habeas
petition, including questions of procedural default. Sexton
v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012). We also
review de novo claims of ineffective assistance of counsel
(“IAC”), which present mixed questions of law and fact.
Rogers v. Dzurenda, 25 F.4th 1171, 1180 (9th Cir. 2022).
Any factual findings made by the district court in evaluating
IAC claims are reviewed for clear error. See id. Because no
state court reviewed Leeds’s IAC claim, there is no special
deference under AEDPA. See id. at 1181.
Where, as here, a petitioner’s claim was procedurally
defaulted in a state habeas proceeding, he must show that the
default was excused in order for federal habeas review to
occur. See Martinez, 566 U.S. at 9–10 (explaining that
federal courts will not review the merits of a claim “that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule” unless an exception
applies). In short, a petitioner can only “obtain federal
review of a defaulted claim by showing cause for the default
and prejudice from a violation of federal law.” Id. at 10
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991))
(emphasis added).
III.
In Martinez, the Supreme Court recognized that attorney
error can establish cause to excuse procedural default of a
trial counsel IAC claim when the state requires a prisoner to
raise that claim for the first time in post-conviction
proceedings. 566 U.S. at 11–12, 14; accord Shinn v.
LEEDS V. RUSSELL 13
Ramirez, 142 S. Ct. 1718, 1733 (2022). 2 In states that
maintain such a requirement, the state habeas court is the
only court that will review the merits of a trial counsel IAC
claim. If a prisoner does not have adequate counsel in the
initial habeas proceeding, “[he] will have . . . difficulties
vindicating a substantial [IAC] claim,” since he will be
unable to “rely on a court opinion or the prior work of an
attorney addressing that claim.” Martinez, 566 U.S. at 11–
12 (citing Halbert v. Michigan, 545 U.S. 605, 619 (2005)).
Thus, to protect the prisoner’s “right to the effective
assistance of counsel at trial,” Martinez held that an effective
attorney is required in these initial-review collateral
proceedings, and ineffective assistance by post-conviction
counsel can establish cause for default. Id. at 12–14.
To show cause under Martinez, a petitioner must show
that “counsel in the initial-review collateral proceeding,
where the claim should have been raised, was ineffective
under the standards of Strickland v. Washington.” Id. at 14.
The Strickland standard requires the petitioner to show that
(1) PCC’s performance was deficient, and (2) PCC’s
deficient performance prejudiced the petitioner. Strickland,
466 U.S. at 687. To show prejudice under Martinez, “a
prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that
the claim has some merit.” Martinez, 566 U.S. at 14.
2
Although the Supreme Court’s recent decision in Shinn narrowed the
circumstances in which Martinez applies, that decision does not impact
this case because no new evidence is required to evaluate Leeds’s
claims. See Shinn, 142 S. Ct. at 1734 (“We now hold that, under
§ 2254(e)(2), a federal habeas court may not conduct an evidentiary
hearing or otherwise consider evidence beyond the state-court record
based on ineffective assistance of state postconviction counsel.”).
14 LEEDS V. RUSSELL
Because a petitioner must demonstrate both cause and
prejudice, courts can analyze the two requirements in any
order. See, e.g., Michaels v. Davis, 51 F.4th 904, 931 (9th
Cir. 2022) (addressing prejudice first); Djerf v. Ryan, 931
F.3d 870, 880–81 (9th Cir. 2019) (addressing only cause).
“Although the cause and prejudice requirements are
distinct, ‘there is considerable overlap between these
requirements, since each considers the strength and validity
of the underlying ineffective assistance claim.’” Michaels,
51 F.4th at 931 (quoting Djerf, 931 F.3d at 880); see
Dickinson v. Shinn, 2 F.4th 851, 858 n.3 (9th Cir. 2021)
(explaining that evaluating the second Strickland prong
during the Martinez cause analysis necessarily requires some
showing of the strength of the underlying trial counsel IAC
claim). Notably, the standard for evaluating the underlying
trial counsel IAC claim during the Martinez prejudice
analysis is not as stringent as that required when considering
the merits of the underlying claim. See Michaels, 51 F.4th
at 930 (“[A] conclusion on the merits of [a trial counsel IAC]
claim under Strickland holds a petitioner to a higher burden
than required in the Martinez procedural default context,
which only requires a showing that the [trial counsel IAC]
claim is ‘substantial.’”). Nonetheless, this “does not
diminish the requirement . . . that petitioner satisfy the
‘prejudice’ prong under Strickland in establishing
ineffective assistance by post-conviction counsel [during the
Martinez cause analysis].” Clabourne v. Ryan, 745 F.3d
362, 377 (9th Cir. 2014) (emphasis added), overruled on
other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir.
2015) (en banc).
Only when a federal court has determined that a
procedural default is excused under Martinez can it turn to
the merits of the underlying IAC claim. See Martinez, 566
LEEDS V. RUSSELL 15
U.S. at 17 (“A finding of cause and prejudice does not entitle
the prisoner to habeas relief. It merely allows a federal court
to consider the merits of a claim that otherwise would have
been procedurally defaulted.”); Michaels, 51 F.4th at 936.
With this framework in mind, we review Leeds’s claim.
IV.
We first address Martinez’s prejudice prong to determine
whether Leeds’s underlying trial counsel IAC claim is
substantial. We then turn back to Martinez’s cause prong
and evaluate whether Leeds’s PCC’s failure to raise a trial
counsel IAC claim based on the burglary theory constituted
ineffective assistance under Strickland. We conclude that
Leeds has demonstrated both cause and prejudice, excusing
his procedural default.
A. Leeds’s Trial Counsel IAC Claim Is Substantial
Under Martinez’s Prejudice Requirement
“To establish ‘prejudice’ under Martinez, the underlying
trial counsel IAC claim must also be ‘a substantial one,
which is to say . . . that the claim has some merit.’”
Michaels, 51 F.4th at 930–31 (quoting Martinez, 566 U.S. at
14). The Supreme Court has said little about the meaning of
“substantial,” but has cited as analogous the standard for
granting a certificate of appealability under 28 U.S.C.
§ 2253. See Martinez, 566 U.S. at 14 (citing Miller-El v.
Cockrell, 537 U.S. 322 (2003)). For a certificate of
appealability to issue, a habeas petitioner must show “that
reasonable jurists could debate whether the issue should
have been resolved in a different manner or that the claim
was adequate to deserve encouragement.” Apelt v. Ryan, 878
F.3d 800, 828 (9th Cir. 2017) (quotations omitted). Under
that standard, “[a] court should conduct a ‘general
16 LEEDS V. RUSSELL
assessment of the[] merits,’ but should not decline to issue a
certificate ‘merely because it believes the applicant will not
demonstrate an entitlement to relief.’” Cook v. Ryan, 688
F.3d 598, 610 n.13 (9th Cir. 2012) (alteration in original)
(quoting Miller-El, 537 U.S. at 336–37).
Leeds’s underlying claim is that his trial counsel
provided ineffective assistance by failing to argue that he
could not burglarize his own home, which could have
prevented the State from relying on the felony-murder rule
as a basis for seeking a first-degree murder conviction. He
argues that if the felony-murder rule had not been available,
the State could not have shown beyond a reasonable doubt
that he committed a willful, deliberate, and premeditated
murder, and that he therefore could not have been convicted
of first-degree murder. When considering whether trial
counsel was ineffective, we again use the Strickland
standard, though we do not apply it as strictly as if we were
considering the merits of the claim. See Michaels, 51 F.4th
at 930.
1. Trial Counsel Performed Deficiently
Under Strickland, “the proper standard for attorney
performance is that of reasonably effective assistance.” 466
U.S. at 687. “When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 687–88. This standard
means “simply reasonableness under prevailing professional
norms.” Id. at 688. That said, because it is easy to second-
guess counsel’s assistance in hindsight, “a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689. We “judge the reasonableness of counsel’s
LEEDS V. RUSSELL 17
challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Id. at 690.
Here, the State argues that Leeds’s counsel could not
have performed unreasonably by failing to argue in 2006 that
a person could not burglarize his own home because the
Nevada Supreme Court did not so rule until 2014. See
White, 330 P.3d at 486. It is true that White constituted the
first instance in which the court addressed that question, and
the reasonableness standard does not require counsel to
predict changes in the law. See Sophanthavong v.
Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (“Strickland
does not mandate prescience, only objectively reasonable
advice under prevailing professional norms.”). But just
because the issue was not definitively decided until 2014
does not mean it would have been reasonable for a defense
attorney not to make the burglary theory argument before
that date. As the Nevada Supreme Court explained in White,
Nevada’s burglary statute is subject to two
reasonable interpretations: (1) the Legislature
intended to revoke the common law rule that
burglary requires entry into the building of
another, or (2) the Legislature incorporated
the common law requirement by failing to
expressly include one’s own home as a
possible place of burglary.
330 P.3d at 484.
Because Nevada’s burglary statute was susceptible to
two interpretations, a reasonable counsel would have argued
for the interpretation that would preclude her client from
facing a felony-murder charge. In concluding that “one
cannot burglarize his own home so long as he has an absolute
18 LEEDS V. RUSSELL
right to enter the home,” id. at 485–86, the White court
considered the purposes of common law burglary, the
legislative intent of Nevada’s burglary statute, and
California’s approach to the issue. Id. at 485. These
arguments were available before White, and it does not take
the benefit of hindsight to realize the obvious strength of the
approach. 3
The Nevada Supreme Court confirmed as much in Weber
v. State, 132 Nev. 1043, 2016 WL 3524627 (Nev. 2016)
(unpublished disposition). There, with an excellent
perspective to evaluate professional standards for defense
counsel in that state, the Nevada Supreme Court allowed a
petitioner to go forward with the claim that his trial counsel
was ineffective because he failed to argue that the petitioner
could not have burglarized his own home even though the
counsel’s representation took place before White was
decided. Id. at *12. The Nevada Supreme Court explained:
“As White merely articulated the substantive law on burglary
as it has always been in Nevada, appellate counsel could
have challenged the burglary convictions and felony
aggravating circumstance [before White was decided].” Id.The burglary theory argument was also not far-fetched.
Nevada precedent supported the argument. In 1959, for
example, the Nevada Supreme Court explained that while
the codification of the Penal Code altered some elements of
common law crimes, the “common-law definition of
burglary is breaking and entering the dwelling house of
3
Indeed, Leeds’s counsel understood that felony murder was easier for
the State to prove than premeditation. She argued that the State should
not be able to rely on the felony-murder rule, though she did not argue
that it was inapplicable because Leeds could not burglarize his own
home.
LEEDS V. RUSSELL 19
another,” and while the legislature can alter a definition, “in
legislating on crimes the definitions of which have been so
well and commonly understood as the crime[] of
burglary . . . , the substitution will not be presumed unless
the intention is manifest.” Smith v. First Jud. Dist. Ct., 347
P.2d 526, 528–29 (Nev. 1959) (quoting State v. Petit, 72 P.
1021, 1022 (1903)). While the Nevada legislature may have
“expanded common law burglary in several respects, it has
at least retained the notion that . . . one cannot burglarize his
own home so long as he has an absolute right to enter the
home.” White, 330 P.3d at 486.
The laws of states with similar burglary statutes also
supported the burglary theory argument. In 1975, the
California Supreme Court established that a person cannot
burglarize his own home. See People v. Gauze, 542 P.2d
1365, 1367 (Cal. 1975). The California court considered the
California burglary statute, which is nearly identical to
Nevada’s statute, and concluded that—while there were two
reasonable interpretations—the purpose underlying
common law burglary (i.e., protection of one’s own home
from invasion) was not altered by the enactment of the Penal
Code. Id. at 1366–67. Leeds’s counsel could have looked
to California’s clear law, as the Nevada Supreme Court did
in White. See 330 P.3d at 484–86; see also Hobbs v. State,
251 P.3d 177, 179–80 (Nev. 2011) (considering California’s
caselaw interpreting its battery statute to interpret Nevada’s
similar statute).
Leeds’s counsel was “obliged to make, or at least to
evaluate, an argument that [wa]s sufficiently foreshadowed
in existing case law.” Bridges v. United States, 991 F.3d
793, 804 (7th Cir. 2021). Because Nevada law could always
have reasonably been interpreted to mean a person could not
burglarize his own home (as the Nevada Supreme Court
20 LEEDS V. RUSSELL
concluded in Weber), competent counsel would have been
expected to make that argument.
2. Trial Counsel’s Deficient Performance
Prejudiced Leeds
Because Leeds has made a strong showing that his trial
counsel performed deficiently, we next ask whether that
deficient performance prejudiced Leeds. In other words,
“the question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at
695. Here, the State argues that even if Leeds’s counsel
performed deficiently by failing to raise the burglary theory,
Leeds was not prejudiced for two reasons. First, the State
argues that Leeds cannot show that he had an unconditional
right to enter the Evening Song house, so he could have
burglarized the house and been found guilty of first-degree
murder under the felony-murder theory. Second, the State
argues that because there was overwhelming evidence that
the murder was willful, deliberate, and premeditated, a jury
would have found Leeds guilty of first-degree murder under
that theory alone.
We review the district court’s factual finding that Leeds
had “a right to enter the [Evening Song] home as a joint
occupant” for clear error. See Earp v. Davis, 881 F.3d 1135,
1142 (9th Cir. 2018). The State challenges this finding by
arguing that there are three possible times at which Leeds
did not have an unconditional right to enter. First, it argues
that Leeds never had an unconditional right to enter the
Evening Song house. Second, it argues that he “moved out
of the house on Wednesday,” three days before the murder.
Third, it argues that after Leeds was escorted off the property
by the police on Friday night (twelve hours before the
LEEDS V. RUSSELL 21
murder) and voluntarily took his remaining personal
belongings, any expectation he had of returning had been
extinguished.
All three arguments are unavailing. Leeds clearly lived
in the Evening Song house with Lane from the time they
moved in. It is true that Leeds was not listed on the lease,
did not pay rent, and did not have a key to the house. But
while these facts may be relevant considerations, they do not
entirely determine whether Leeds had a right to enter the
home. Cf. White, 330 P.3d at 486 (“[W]hile ownership may
be one factor to consider, the appropriate question is whether
the alleged burglar has an absolute, unconditional right to
enter the home.”). Lane testified multiple times that Leeds
lived at the house with her, that he did not need a key because
the back door was always open, and that it was never their
plan for Leeds to pay rent. She never testified that there was
any issue with their living arrangements, beyond her few
suggestions that he get a place of his own. When Leeds left
on Wednesday for the Thanksgiving holiday, both he and
Lane understood the situation to be temporary. A temporary
exit does not terminate an occupant’s absolute right to enter.
See id. at 486 (“Even though [defendant] orally agreed to
stay elsewhere during the week, he still maintained an
absolute right to enter the residence.”).
Leeds also did not give up his status as an occupant on
the night before the murder. Although the State argues
Leeds was “escorted off the property by the police” and that
he “voluntarily took all of his remaining personal belongings
with him,” this argument misstates the record. The police
told Lane that Leeds had a right to stay at the house because
he had been living there and she would need to evict him.
Leeds voluntarily went with the police to cool off. Nor did
Leeds collect all his property. He took his yoga mat and
22 LEEDS V. RUSSELL
laptop, but his other belongings remained at the house and in
the garage. The cases on which the State relies to argue
Leeds instantaneously gave up his occupancy are inapposite.
In both Sears and Ulloa, the defendants had fully separated
from their wives and permanently moved out of the homes
in question (for four months in Ulloa and for three weeks in
Sears). See People v. Sears, 401 P.2d 938, 944 (Cal. 1965),
overruled on other grounds by People v. Cahill, 853 P.2d
1037, 1059 n.17 (Cal. 1993); People v. Ulloa, 102 Cal. Rptr.
3d 743, 745 (Cal. Ct. App. 2009). Lane and Leeds had never
fully separated, and Leeds had never moved out. The district
court did not err when it assessed these facts to conclude that
Leeds had an unconditional right to enter the Evening Song
house.
We next consider the State’s argument that there was
overwhelming evidence that the murder was willful,
deliberate, and premeditated. We review this contention de
novo. Although the State presented evidence to support its
premeditation theory, Leeds countered this theory by
arguing that the case was about manslaughter. His counsel
pointed to record evidence suggesting a self-defense or heat-
of-passion killing. Because the jury had to reach a
unanimous verdict and the evidence towards any single
theory was not overwhelming, the district court correctly
concluded that a reasonable juror could have believed that
Leeds acted in the heat-of-passion or that the State had not
proved the premeditation theory beyond a reasonable doubt.
It is thus possible that the outcome of the trial would
have been different if trial counsel had raised the burglary
theory to preclude the use of the felony-murder rule. Instead,
the jury was instructed on both the felony-murder theory and
the willful, deliberate, and premeditated theory. In closing
argument, the State explicitly told the jury: “You don’t have
LEEDS V. RUSSELL 23
to agree on the theory. Remember, there’s two theories
that’ll get you to first degree murder in this case.” The
general verdict form does not tell us which theory each juror
relied upon, but we do know that the jury found Leeds guilty
of burglary, rendering it possible that at least one juror relied
on the felony-murder theory to find him guilty of first-degree
murder. Because the verdict must be unanimous, the
outcome of Leeds’s trial could have been different if only
“one juror would have struck a different balance.” Wiggins
v. Smith, 539 U.S. 510, 537 (2003). We find it likely that, if
the trial court had declined to instruct the jury on the felony-
murder theory, at least one juror may have not been
convinced beyond a reasonable doubt that Leeds—
distraught after discovering that his partner of twenty years
was moving on—committed a willful, deliberate, and
premeditated murder.
Leeds has thus shown that his trial counsel IAC claim is
substantial. In other words, the claim has “some merit” and
therefore satisfies Martinez’s prejudice requirement.
B. Leeds’s PCC Provided Ineffective Assistance Under
Strickland, Meeting the Martinez Cause Requirement
To show “cause” for his procedural default, Leeds must
demonstrate that, in failing to raise an IAC claim based on
trial counsel’s failure to assert the burglary theory, PCC was
ineffective under the Strickland standard. Martinez, 566
U.S. at 14. Strickland requires Leeds to show that (1) PCC’s
performance was deficient, and (2) PCC’s deficient
performance prejudiced Leeds. Strickland, 466 U.S. at 687.
While we reviewed trial counsel’s actions in our Martinez
prejudice analysis under a more relaxed standard, see
Michaels, 51 F.4th at 930, we apply the Strickland standard
24 LEEDS V. RUSSELL
with full force when considering PCC’s actions in the
Martinez cause analysis. See Clabourne, 745 F.3d at 377.
1. PCC Performed Deficiently
Again, the State argues that Leeds’s PCC could not have
performed deficiently in 2013 because White was not
decided until 2014. See White, 330 P.3d at 486. For the
same reasons we explained above, we reject this argument.
Although we evaluate PCC’s actions more stringently than
we evaluated trial counsel’s actions, see Clabourne, 745
F.3d at 377, our earlier analysis leads us to conclude that
PCC’s “representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687–88. We do not
“second-guess counsel’s assistance” in hindsight, id. at 689,
but rather recognize that it was unreasonable not to present
an argument that could have prevented the State from relying
on the felony-murder theory to obtain a first-degree murder
conviction.
As the Nevada Supreme Court explained, “White merely
articulated the substantive law on burglary as it has always
been in Nevada.” Weber, 2016 WL 3524627, at *12
(explaining that appellate counsel “could have” challenged
the burglary conviction before White, and PCC might have
performed unreasonably by failing to raise an IAC claim on
that basis). Just as trial counsel could have made the
burglary theory argument in 2006, PCC could have made the
argument in 2013 by relying on a common understanding of
the definition of “burglary,” basic statutory interpretation
principles, and the law of other states with similar criminal
statutes. The failure to do so was unreasonable. As we noted
above, counsel perform deficiently when they fail to “make,
or at least to evaluate, an argument that is sufficiently
LEEDS V. RUSSELL 25
foreshadowed in existing case law.” Bridges, 991 F.3d at
804.
While PCC filed a 60-page habeas petition that identified
many claims of error at the trial level, the thoroughness of
the petition does not negate PCC’s failure to recognize a
potentially dispositive claim. With felony-murder on the
table, the State only had to prove that Leeds committed
burglary, a much easier task than proving—beyond a
reasonable doubt—that Leeds committed a willful,
deliberate, and premeditated murder. Given those stakes,
trial counsel provided ineffective assistance by failing to
make the burglary theory argument, and PCC performed
deficiently by failing to recognize that error. See Michaels,
51 F.4th at 934 (“Had PC[C] performed adequately, they
would have recognized trial counsel’s conduct amounted to
ineffective assistance and raised the IAC claim in the first
habeas petition.”).
As the record shows, PCC did not raise the burglary
theory until White was decided, although the argument was
always available. Given the importance of the burglary
theory argument to Leeds’s case, counsel’s failure was
substantial. In short, a “failure to recognize a potentially
viable IAC claim is not a strategic decision.” Michaels, 51
F.4th 935. We therefore affirm the district court’s finding
that Leeds’s PCC performed deficiently because a
reasonably competent post-conviction counsel would have
recognized the trial counsel’s error in failing to advance the
burglary theory argument.
2. PCC’s Deficient Performance Prejudiced Leeds
Having concluded that PCC’s performance was
deficient, we consider Leeds’s argument that this deficient
performance prejudiced him, thereby meeting the second
26 LEEDS V. RUSSELL
Strickland prong and showing cause under Martinez. See
Martinez, 566 U.S. at 14; Strickland, 466 U.S. at 691. To
show prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. Moreover, the “question is not whether the
particular [post-conviction review] court would have
rendered a more favorable decision, but whether some
reasonable [post-conviction review] court might have done
so.” Michaels, 51 F.4th at 935 (citing Apelt, 878 F.3d 827).
Leeds must show that, if PCC had raised an IAC claim based
on trial counsel’s failure to argue the burglary theory, a
reasonable Nevada court could have granted his post-
conviction petition.
“Whether PC[C]’s ineffectiveness prejudiced [Leeds]
depends in part on the strength of his underlying trial counsel
IAC claim, Djerf, 931 F.3d at 880, and in part on the use
PC[C] could have made of that claim had it been properly
raised in the state habeas petition.” Michaels, 51 F.4th at
935; see also Dickinson, 2 F.4th at 858. If the underlying
IAC claim were meritless, PCC “would not be ineffective for
failure to raise an [IAC] claim with respect to trial counsel
who was not constitutionally ineffective.” Sexton, 679 F.3d
at 1157. As discussed above, Leeds’s trial counsel IAC
claim is substantial. The underlying claim here is strong,
because—since Leeds was found guilty of burglary and the
evidence of premeditated murder was not overwhelming—it
is likely that some jurors found Leeds guilty of first-degree
murder by relying on the felony-murder theory. If the
felony-murder theory had not been available to the jurors,
Leeds may not have been convicted of first-degree murder
LEEDS V. RUSSELL 27
at all. Thus, if trial counsel had recognized and asserted the
burglary theory, the outcome of Leeds’s trial may have been
different.
Given the strength of the underlying claim, it is likely
that PCC would have been able to rely on the IAC claim to
persuade a post-conviction review court that Leeds was
denied effective assistance when his trial counsel failed to
assert the burglary theory and thereby allowed the State to
prove its case under the easier felony-murder theory. Any
reasonable court would have seen the strength of the
burglary theory argument and its potential to avoid a first-
degree murder conviction. There is thus “a reasonable
probability that . . . the result of the [post-conviction]
proceeding would have been different” if PCC had not failed
to allege an IAC claim based on the burglary theory. See
Strickland, 466 U.S. at 694. Indeed, the “likelihood of a
different result [is] substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011) (describing
the Strickland prejudice standard).
In sum, we conclude that it is reasonably probable that a
Nevada court would have granted Leeds’s post-conviction
petition if PCC had properly asserted Ground Two. It is not
lost on us that Nevada’s Supreme Court has already
recognized a willingness to hear such claims. See Weber,
2016 WL 3524627. We thus conclude that PCC’s failure to
assert an IAC claim based on the burglary theory prejudiced
Leeds. Leeds has demonstrated that his PCC was ineffective
under Strickland, meeting Martinez’s cause requirement.
Because we conclude that Leeds has demonstrated cause
and prejudice under Martinez, we affirm the district court’s
conclusion to excuse the procedural default of Ground Two.
28 LEEDS V. RUSSELL
V.
After the district court concluded that Leeds’s procedural
default was excused, it reached the merits of Leeds’s trial
counsel IAC claim. See Martinez, 566 U.S. at 17 (explaining
that courts consider the merits of a claim only after excusing
procedural default). The court applied Strickland, concluded
that Leeds’s claim was successful, and granted habeas relief.
It is not entirely clear whether the State challenges the
district court’s decision on the merits of Leeds’s IAC claim.
The State’s briefing focuses primarily on the district court’s
finding of prejudice, both during the Strickland analysis in
the Martinez cause prong and in the Martinez prejudice
analysis. Nonetheless, we construe the State’s argument as
also challenging the district court’s merits determination.
We affirm. To succeed on his IAC claim, Leeds was
required to prove: “(1) that his counsel’s performance fell
below an objective standard of reasonableness (the deficient
performance prong); and (2) that there is a reasonable
probability of a more favorable outcome if counsel
performed effectively (the prejudice prong).” Rogers, 25
F.4th at 1181 (citing Strickland, 466 U.S. at 687–88). As we
have repeatedly discussed above, the burglary argument was
always available to counsel. Had counsel raised the burglary
argument, it is reasonably probable that the trial court would
not have allowed the State to rely on the felony-murder
theory as a basis for a first-degree murder conviction. Trial
counsel’s failure to raise this objectively important argument
constituted deficient performance.
We cannot determine whether the jury (or any juror)
relied on the felony-murder theory or the willful, deliberate,
and premeditated theory to convict Leeds of first-degree
murder, but we know the jury found him guilty of burglary.
LEEDS V. RUSSELL 29
See Yates, 354 U.S. at 312 (a verdict should be set aside “in
cases where the verdict is supportable on one ground, but not
on another, and it is impossible to tell which ground the jury
selected”). It is probable that at least one juror relied on the
felony-murder theory. Because the outcome of the trial
would have been different if even “one juror would have
struck a different balance,” Wiggins, 539 U.S. at 537, “there
is a reasonable probability that . . . the result of the
proceeding would have been different” without the use of the
felony-murder rule. Strickland, 466 U.S. at 694. Trial
counsel’s deficient performance thus prejudiced Leeds. The
district court therefore did not err in granting him habeas
relief.
VI.
For the foregoing reasons, we affirm the district court’s
judgment to excuse the procedural default and grant Leeds’s
habeas petition on the basis of Ground Two.
AFFIRMED.