Jennifer Lynn Mothershead v. DEBORAH JO WOFFORD, Superintendent, Washington Corrections Center for Women

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER LYNN MOTHERSHEAD,
Petitioner-Appellee,
v.
DEBORAH JO WOFFORD, Superintendent,
Washington Corrections Center for Women,
Respondent-Appellant.
No. 22-35756
D.C. No.
3:21-cv-05186-MJP-JRC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted August 23, 2023
Seattle, Washington
Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.
Deborah Jo Wofford, Superintendent of the Washington Corrections Center
for Women, appeals from the district court’s order granting an evidentiary hearing
in connection with Washington State prisoner Jennifer Lynn Mothershead’s
28 U.S.C. § 2254 habeas petition. We have jurisdiction over this interlocutory
appeal under 28 U.S.C. § 1292(b). We reverse and remand.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 12 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-35756
The district court erred in its predicate determination that Mothershead’s
claim was procedurally barred and not subject to review under § 2254(d). See ICTSI
Or., Inc. v. Int’l Longshore & Warehouse Union, 22 F.4th 1125, 1132–33 (9th Cir.
2022) (explaining interlocutory jurisdiction extends to issues material and
inextricably tied to order under review). The Washington Supreme Court rendered
the “last reasoned [state court] decision.” See Tamplin v. Muniz, 894 F.3d 1076,
1086 (9th Cir. 2018). Although the court noted that the Washington Court of
Appeals also denied Mothershead’s petition for failing to submit the necessary
affidavit regarding Dr. Pleus’s testimony, the Washington Supreme Court held that,
in light of the strength of the State’s case and the evidence presented at
Mothershead’s trial, the court of appeals properly concluded that “Mothershead
failed to show there is a reasonable probability the testimony of Dr. Pleus would
have altered the outcome.” The Washington Supreme Court did not clearly rely on
a procedural bar; accordingly, we treat its decision as a determination on the merits,
which is subject to review under § 2254(d). See Chambers v. McDaniel, 549 F.3d
1191, 1197 (9th Cir. 2008). Review under § 2254(d) is limited to the state court
record. See § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 180–81 (2011).
Therefore, we need not consider the potential application of § 2254(e)(2) or Shinn v.
Ramirez, 142 S. Ct. 1718 (2022).
REVERSED AND REMANDED.

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