Anthony Lamar Allen, Sr. v. BOB FERGUSON, Attorney General of the State of Washington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY LAMAR ALLEN, SR.,
Plaintiff-Appellant,
v.
BOB FERGUSON, Attorney General
of the State of Washington,
Defendant-Appellee.
No. 14-35615
D.C. No 2: 13-cv-00206-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Tomas O. Rice, District Judge, Presiding
Submitted May 4, 2016**
Seattle, Washington
Before: GRABER and MURGUIA, Circuit Judges, and BURY, Senior District
Judge.***
This case is REVERSED and REMANDED to the United States District
FILED
MAY 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David C. Bury, United States Senior District Judge for
the District of Arizona, sitting by designation.

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Court for the Eastern District of Washington, to consider, in the first instance, the
merits of sub-claims 2, 8 and 10.
In sub-claim 2 of the habeas petition, Allen alleged that his trial counsel was
ineffective for failing to investigate his offender score during plea negotiations. This
claim was not procedurally defaulted because the state court’s application of
Washington’s particularized pleading requirement did not constitute an independent
and adequate state procedural reason to deny relief. The state court’s consideration
of the sufficiency of Allen’s Personal Restraint Petition was interwoven with the
merits of his federal constitutional claim. See Stewart v. Smith, 536 U.S. 856, 860
(2002) (per curiam) (cautioning that even if the procedural rule does not require a
ruling on the constitutional merits, if the state nevertheless rested its decision on the
merits, its ruling would be interwoven with federal law).
This court grants a Certificate of Appealability for sub-claim 8 that trial
counsel was ineffective for failing to object to the prosecutor’s improper closing
arguments misstating Dr. Bass’ testimony and for sub-claim 10 that trial counsel
improperly elicited Allen’s prior convictions on direct examination. Jurists of reason
would debate the merits of sub-claims 2 and 10, and the district court erred in finding
these claims procedurally barred because they were considered on the merits by the
Washington Supreme Court. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
REVERSED and REMANDED.
2

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