Zachary Kelsey v. Tim Garrett ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZACHARY KELSEY, No. 22-15557
Petitioner-Appellant, D.C. No.
3:18-cv-00174-
v. MMD-CLB
TIM GARRETT; JAMES
DZURENDA; AARON D. FORD, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted December 9, 2022
San Francisco, California
Filed May 24, 2023
Before: Susan P. Graber, Ronald M. Gould, and Paul J.
Watford, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Graber
2 KELSEY V. GARRETT
SUMMARY*
Habeas Corpus
The panel reversed the district court’s denial of Nevada
prisoner Zachary Kelsey’s 28 U.S.C. § 2254 habeas corpus
petition challenging his conviction and 10-to-25-year
sentence for the second-degree murder of Jared Hyde, and
remanded for the district court to issue the writ.
In his habeas corpus petition, Kelsey claimed that he was
denied effective assistance of counsel as guaranteed under
the Sixth Amendment by his trial counsel, Scott Edwards,
waiving closing argument and failing to consult a forensic
pathologist expert.
The panel agreed with Kelsey that Edwards’ decision to
waive closing argument was not based on strategy and that
he was prejudiced by counsel’s waiver. Addressing
deficient performance, the panel wrote that neither reason
offered by Edwards during post-conviction proceedings
testimony—that he chose to waive closing argument to cut
off the possibility that the lead prosecutor would give a more
powerful rebuttal closing argument, and to preclude the
prosecutor from arguing for first-degree murder—is
supported by the record. The panel wrote that the record
likewise does not support respondents’ asserted
justification—never offered by Edwards—that the waiver
was a tactic to prevent co-defendants’ counsel from
presenting closing arguments that would shift blame to
Kelsey. The panel wrote that Edwards’ decision to waive
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KELSEY V. GARRETT 3
closing argument was also unreasonable under prevailing
professional norms. The panel held that Kelsey successfully
showed that he was prejudiced by Edwards’ waiver of
closing argument. Had Edwards made a closing argument,
he could have explained that Kelsey’s actions were not the
proximate cause of Hyde’s death and asked the jury to
convict, if at all, on a lesser offense. As this was a joint trial
with varying defense theories and degrees of culpability,
closing argument was a critical opportunity for Edwards to
distinguish and disentangle Kelsey’s culpability from that of
his co-defendants. Applying the Antiterrorism and Effective
Death Penalty Act (AEDPA), the panel held that Nevada
Court of Appeals unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), by accepting Edwards’
implausible explanations for waiving closing argument and
because there was a reasonable probability of a better
outcome for Kelsey if Edwards had given closing argument.
The panel also agreed with Kelsey that Edwards’
decision not to consult a forensic pathologist expert was not
based on strategy and that Kelsey was prejudiced by this
decision. The panel held that Edwards did not conduct a
reasonable investigation. The central issue at trial was the
cause of Hyde’s death, and Edwards’ defense theory was that
Kelsey was guilty at best of simple battery. But even though
he was not an expert in forensic pathology himself, Edwards
did not contact, consult with, or present, an expert
questioning whether Kelsey’s actions caused Hyde’s
death. The panel wrote that it was enough that Edwards
knew the testifying experts called by co-defendants’ counsel
would contradict his defense theory and nevertheless failed
to present countervailing expert testimony on that subject or
even consult with an expert to aid in his cross-examination
and trial preparation. Addressing prejudice, the panel wrote
4 KELSEY V. GARRETT
that it is reasonable to conclude that, presented with an
expert in disagreement with testifying experts, at least one
juror would have been swayed to have a reasonable doubt
because of the disagreeing expert, and that there is thus a
reasonable probability that the jury would have returned with
a different sentence. As the Nevada Court of Appeals did
not address whether Edwards was deficient for failing to
consult a forensic pathologist expert, the panel applied
AEDPA deference only to its analysis of the prejudice
prong. The panel held that the Nevada Court of Appeals’
and the state district court’s decisions involved an
unreasonable application of Strickland because they did not
accord appropriate weight to the potential force of
countervailing expert testimony in this case where causation
was so critical and because they failed to consider the
combined prejudicial effect of both deficiencies (waiver of
closing argument and failure to consult with an expert).
Dissenting, Judge Graber wrote that Edwards made
tactical decisions that neither fell below an objective
standard of reasonableness nor prejudiced Kelsey, and that
the state court’s denial of his habeas petition therefore was
not an unreasonable application of Strickland. She wrote
that in concluding that Edwards was ineffective because he
waived closing argument and because that decision
prejudiced Kelsey, the majority opinion fails to give proper
deference to the decisions of Kelsey’s trial counsel and to
the decision of the state court. She wrote that not only was
the decision to waive closing argument objectively
reasonable in the circumstances, it also is essentially the
same strategy that the Supreme Court approved in Bell v.
Cone, 535 U.S. 685 (2002). Concerning Edwards’ failure to
consult a forensic pathologist, Judge Graber wrote that
Edwards already possessed reports from two well-respected
KELSEY V. GARRETT 5
experts and both concluded that Kelsey’s actions could have
contributed directly to the victim’s death; that a third expert,
whom the majority chides Edwards for failing to call,
recognized that Kelsey’s actions could have been a
substantial factor in the victim’s death; and that Kelsey is
guilty of the crime of conviction even if his acts were only a
“substantial factor” in the killing. She wrote that this court
should not expand Strickland to stand for the proposition that
a defense attorney always must consult with an expert when
the government puts forth its own expert. She wrote that the
majority opinion also fails to explain precisely how
consultation with any forensic expert would have resulted in
a different outcome at trial.
COUNSEL
Kimberly Sandberg (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender,
District of Nevada; Public Defenders’ Office; Las Vegas,
Nevada; for Petitioner-Appellant.
Erica Berrett (argued), Deputy Attorney General; Office of
the Nevada Attorney General; Las Vegas, Nevada; Charles
L. Finlayson, Senior Deputy Attorney General; Aaron D.
Ford, Attorney General of Nevada; Office of the Nevada
Attorney General; Carson City, Nevada; for Respondents-
Appellees.
6 KELSEY V. GARRETT
OPINION
GOULD, Circuit Judge:
Zachary Kelsey appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition challenging his
conviction and 10-to-25-year sentence for the second-degree
murder of Jared Hyde. We reverse and remand.
At trial, Kelsey was tried with two co-defendants, Robert
Schnueringer and Andrue Jefferson, each of whom had their
own counsel. Kelsey’s trial counsel, Scott Edwards, did not
consult with or retain a forensic pathologist regarding
Hyde’s cause of death. Then, prompted by counsel for
Schnueringer, Edwards agreed to waive closing argument.
In post-trial proceedings, Edwards testified that he did not
consult a forensic pathologist because Schnueringer’s
attorney told him that he had talked to an expert and that her
opinion “wasn’t good.” Edwards stated that he agreed to
waive closing argument to avoid giving the prosecutor a
chance to argue for first-degree murder in rebuttal.
In his habeas corpus petition, Kelsey claimed that he was
denied effective assistance of counsel as guaranteed under
the Sixth Amendment. The state district court granted
Kelsey’s petition on the claim that his trial counsel was
ineffective in failing to give a closing argument, but the
Nevada Court of Appeals reversed. The federal district court
denied habeas relief. We have jurisdiction under 28 U.S.C.
§ 1291 and 28 U.S.C. § 2253; we reverse and order the
district court to issue the writ of habeas corpus.
KELSEY V. GARRETT 7
I. FACTUAL AND PROCEDURAL BACKGROUND
a. The death of Jared Hyde
On February 4, 2012, Kelsey went to a bonfire party
attended by forty to sixty individuals in their teens and early
twenties. During the party, fights broke out. One was
between Kelsey and Jared Hyde, the victim.
At trial, four individuals testified about the fight between
Kelsey and Hyde: three attendees of the bonfire party—Mike
Opperman, Brandon Nastaad, and Aubree Hawkinson—
along with Kelsey himself. Opperman, Nastaad, and
Hawkinson all testified that they saw Kelsey hit Hyde in his
face two to three times. Naastad testified that he saw Hyde
pulling Kelsey’s shirt off of him and then saw Kelsey punch
Hyde in the face three times. Opperman testified that
Kelsey’s hits knocked Hyde down. Kelsey testified that he
punched Hyde twice and only tried to kick him after Hyde
grabbed Kelsey’s shirt. Some witnesses of the fight testified
that Kelsey later bragged about wearing brass knuckles
during the fight, but no one testified that they actually saw
him wearing them. Hyde’s friend Tyler DePriest testified
that, after the fight between Kelsey and Hyde was over,
Hyde walked toward DePriest’s vehicle and told him, “I just
got rocked. Let’s get out of here, let’s go.”
As Hyde walked around to the passenger side of the car,
he was confronted by Schnueringer and Jefferson, who
asked if Hyde was “still talking smack,” and Hyde responded
that he was not. Hyde did not have his hands up to defend
himself when Schnueringer punched him in the head, the
sound of which witnesses compared to the crack of a
baseball bat. Hyde’s knees buckled and he fell to the ground.
While Hyde was unconscious on the ground, Jefferson
punched him in the head again. Schnueringer and Jefferson
8 KELSEY V. GARRETT
proceeded to stomp on Hyde’s head, while Jefferson
shouted, “I slept him. I slept him.” When a friend of Hyde’s
checked Hyde for a pulse, he did not find one. Hyde’s
friends drove him to the hospital. Hyde was not breathing
when they arrived at the hospital and efforts to resuscitate
him failed.
b. Expert Opinions
Dr. Ellen Clark performed Hyde’s autopsy and she
determined that “[t]he cause of death was bleeding into the
brain . . . due to blunt force trauma.” Dr. Clark explained
that “[t]here were multiple injuries to different parts of the
brain” such that she could not “identify one fatal impact site”
because “based upon the cumulative effect or the
compounding injury, any and all of the blows may have
contributed to causing death.” Dr. Clark consulted with Dr.
Bennet Omalu, a forensic pathologist, neuropathologist, and
a “recognized and leading expert in brain trauma,” to get his
opinion of Hyde’s cause of death. Similar to Dr. Clark, Dr.
Omalu testified about “repetitive traumatic brain injury,”
meaning “each and every repeated blow accentuates the
totality of all the blows” such that it cannot be determined
“which blow was the fatal blow.”
In sharp contrast, at Kelsey’s post-conviction hearing, a
pathologist named Dr. Amy Llewellyn testified that, after
reviewing Hyde’s autopsy report and photographs, Dr. Clark
and Dr. Omalu’s trial testimonies, and various witness
statements, she did not agree with Dr. Omalu’s conclusion
that every single hit necessarily contributed to Hyde’s death.
She testified that she thought, “to a reasonable degree of
medical certainty,” that it was the second attack by
Schnueringer and Jefferson that killed Hyde. That
conclusion accords with common sense. It is one thing for a
KELSEY V. GARRETT 9
teenager at a party to throw and land a punch to someone’s
head. But it is quite another thing, and clearly more extreme,
for two teenagers to repeatedly beat someone in the head
multiple times. There is a difference between a typical high
school fight of teenagers, and a savage, brutal beating
delivering repeated blows to a helpless victim’s head.
c. Prior State and Federal Proceedings
i. Nevada State Courts
On direct appeal, the Nevada Supreme Court affirmed
Kelsey’s judgment of conviction and sentence. Kelsey
sought post-conviction relief. The state district court granted
Kelsey’s petition on the claim that his trial counsel was
ineffective in failing to give a closing argument, but the
Nevada Court of Appeals reversed. Kelsey then pursued
relief in federal court.
ii. Federal Habeas Corpus
The United States District Court for the District of
Nevada denied Kelsey’s habeas petition and initially denied
him a certificate of appealability. Kelsey appealed, and we
granted a certificate of appealability with respect to whether
his trial counsel was ineffective. We also granted Kelsey’s
motion for remand because certain documents were not
submitted to, and thus not reviewed by, the district court. On
remand, the district court reaffirmed its prior denial of
Kelsey’s habeas petition, but it granted a certificate of
appealability for whether Kelsey’s trial counsel was
ineffective for (a) waiving closing argument and/or (b)
failing to consult with or retain an expert regarding the
victim’s cause of death.
10 KELSEY V. GARRETT
II. STANDARD OF REVIEW
We review a district court’s denial of a habeas petition
de novo. Godoy v. Spearman, 861 F.3d 956, 961-62 (9th Cir.
2017) (en banc). Because Kelsey filed his petition after
April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) applies to review of this petition.
See Summers v. Schriro, 481 F.3d 710, 712 (9th Cir. 2007).
Under AEDPA, when a state court has adjudicated a claim
on the merits, a federal court may grant habeas relief only if
the state court’s decision was: (1) “contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States;” or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). When the state
court does not reach a particular issue, § 2254 does not apply,
and we review that issue de novo. See Rompilla v. Beard,
545 U.S. 374, 390 (2005); see also Weeden v. Johnson, 854
F.3d 1063, 1071 (9th Cir. 2017) (“Because the [state court]
did not reach the issue of prejudice, we address the issue de
novo.”).
III. DISCUSSION
A defendant claiming ineffective assistance of counsel
(“IAC”) must demonstrate: (1) that counsel’s performance
was deficient and (2) that the defendant was prejudiced by
reason of counsel’s actions. Strickland v. Washington, 466
U.S. 668, 687-90 (1984).
Regarding the first prong, counsel’s performance was
deficient if it “fell below an objective standard of
reasonableness . . . . under prevailing professional norms.”
Id. at 688. There is a strong presumption that counsel
rendered adequate assistance, and “strategic choices made
KELSEY V. GARRETT 11
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at 690-
91. However, the purpose of these inquiries is to ensure that
criminal defendants receive a fair trial, so we analyze IAC
claims “considering all the circumstances.” Id. at 688-89.
Regarding the second prong, we consider “whether there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695. “A reasonable probability is one
‘sufficient to undermine confidence in the outcome,’ but is
‘less than the preponderance more-likely-than-not
standard.’” Lambright v. Schriro, 490 F.3d 1103, 1121 (9th
Cir. 2007) (quoting Summerlin v. Schriro, 427 F.3d 623,
640, 643 (9th Cir. 2005) (en banc)). It is not necessary to
show that counsel’s deficient conduct “more likely than not
altered the outcome in the case.” See Duncan v. Ornoski,
528 F.3d 1222, 1239 (9th Cir. 2008) (quoting Sanders v.
Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994)).
In addition to defining these standards, the Strickland
Court set guidance for their application, reminding lower
courts that, “[a]lthough [the Strickland standards] should
guide the process of decision, the ultimate focus of inquiry
must be on the fundamental fairness of the proceeding whose
result is being challenged.” 466 U.S. at 696.
There is a large amount of deference owed in this case.
Review of an IAC claim under § 2254(d) is “doubly
deferential,” requiring the court to apply AEDPA deference
on top of Strickland deference. Knowles v. Mirzayance, 556
U.S. 111, 123 (2009). However, a federal habeas court may
grant the writ if it concludes that the state court decision was
“contrary to” or “involved an unreasonable application of”
clearly established federal law. 28 U.S.C. § 2254(d)(1).
12 KELSEY V. GARRETT
“[C]ontrary to” means that “the state court applie[d] a rule
different from the governing law set forth in [the Supreme
Court’s] cases” or that it “decide[d] a case differently than
[the Supreme Court] ha[s] done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). “[U]nreasonable application” means that “the state
court identifie[d] the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applie[d]
that principle to the facts of the prisoner’s case.” Williams,
529 U.S. at 413.
a. Waiving closing argument
Kelsey argues that his trial counsel was ineffective for
waiving closing argument. He argues that Edwards’
decision to waive closing argument was not based on
strategy and that he was prejudiced by Edwards’ waiver. Id.We agree.
Edwards testified that the reason he waived closing
argument was because he did not think the junior
prosecutor’s closing argument was “the most vigorous
closing argument [he] had ever seen,” and he didn’t want to
give the more senior prosecutor an opportunity to argue for
first-degree murder in rebuttal. John Ohlson, counsel for
Kelsey’s co-defendant Schnueringer, was the one who
initially suggested waiving closing argument. Edwards,
understanding that all three attorneys had to waive closing to
keep the prosecution from getting a rebuttal, agreed to
Ohlson’s suggestion.
The state district court held that Edwards was deficient
for waiving closing argument and that the waiver prejudiced
Kelsey, but the Nevada Court of Appeals reversed. The
Nevada Court of Appeals’ reversal was based on its
KELSEY V. GARRETT 13
conclusion that while choosing to forgo closing argument
“may not have been the best option, it was a tactical
decision,” and that Kelsey failed to demonstrate prejudice.
i. Deficient performance
Closing arguments are a crucial part of trial. As the
Supreme Court emphasized in Herring v. New York, “no
aspect of such advocacy could be more important than the
opportunity finally to marshal the evidence for each side
before submission of the case to judgment.” 422 U.S. 853,
862 (1975). While “[c]losing arguments should ‘sharpen
and clarify the issues for resolution by the trier of fact,’ . . .
which issues to sharpen and how best to clarify them are
questions with many reasonable answers.” Yarborough v.
Gentry, 540 U.S. 1, 6 (2003) (per curiam) (quoting Herring,
422 U.S. at 862). As pointed out by Respondents, it is true
that sometimes it might make sense to “forgo closing
argument altogether.” Id. But even if waiving closing
argument can, in some cases, be a tactical decision, it was
not one in this case.
As a threshold matter, Kelsey’s co-defendants, Jefferson
and Schnueringer, presented defenses that were directly
adversarial to Kelsey’s, such that it was questionable for
Edwards to rely on Ohlson’s strategic assessment. At every
turn, Ohlson and Molezzo (counsel for Jefferson) sought to
inculpate Kelsey in order to exonerate their clients. Indeed,
Ohlson presented a theory of the case that was arguably even
more extreme than the State’s with respect to Kelsey’s
culpability, repeatedly emphasizing Kelsey’s alleged use of
brass knuckles.
During the Nevada post-conviction proceedings,
Edwards testified that he chose to waive closing argument to
cut off the possibility that the lead prosecutor would give a
14 KELSEY V. GARRETT
more powerful rebuttal closing argument and to preclude the
prosecutor from arguing for first-degree murder. Neither
reason is supported by the record. Edwards himself
acknowledged that the State never argued for first-degree
murder during its initial closing and could not have credibly
argued that Kelsey was guilty of first-degree murder in
rebuttal. As for the desire to avoid a more persuasive
rebuttal, there is no concrete indication in the record that the
lead prosecutor would be the person to argue the State’s
rebuttal, and, more importantly, there is no indication that
anything was left unsaid in the State’s initial closing
argument. As the Nevada district court emphasized in
granting Kelsey post-conviction relief, the prosecution’s
initial closing argument was not brief. It lasted for
approximately two hours, over which time the State
reviewed virtually every aspect of the trial in detail. Given
the length and comprehensiveness of the State’s initial
closing argument, it was entirely unreasonable to think that
the State had saved its best for last.
Respondents advance an additional reason that Edwards’
decision to waive closing argument was tactical, namely to
prevent Molezzo and Ohlson from presenting closing
arguments that would shift blame to Kelsey by highlighting
his alleged use of brass knuckles. But Edwards never
offered that as a reason justifying his decision to waive
closing argument, and the record does not support that
asserted justification in any event.
Although Ohlson attempted at trial to elicit testimony
that Kelsey had used brass knuckles and bragged about
killing Hyde, Ohlson testified during post-conviction
proceedings that the witnesses he put on the stand had been
thoroughly discredited by the end of the trial. In fact, Ohlson
testified that he had waived closing argument to avoid the
KELSEY V. GARRETT 15
possibility that the damage done to the credibility of those
witnesses would “rub off” on his client. During its closing
argument, the prosecution picked apart the credibility of
Ohlson’s witnesses, telling the jury that parts of their story
didn’t “make sense,” and that the brass knuckles testimony
was unfounded. Thus, any supposed desire to prevent
counsel for Kelsey’s co-defendants from presenting closing
arguments could not have supported Edwards’ decision to
waive closing argument on Kelsey’s behalf.
Bell v. Cone, on which Respondents rely, does not
change our conclusion. In that case, the Supreme Court held
that a Tennessee state court’s determination that counsel was
not ineffective for waiving closing argument during the
sentencing stage of proceedings did not involve an
unreasonable application of Strickland. 535 U.S. at 688-87.
The Court’s holding was based on an analysis of the
evidence defense counsel had presented during the guilt
stage of proceedings, how close in time the trial was to the
sentencing hearing, and the tactical choice with which
counsel was faced.
The petitioner in Bell was tried and convicted for the
brutal murder of an elderly couple. Id. at 689. The killings
culminated a “2-day crime rampage,” id., that also included
robbing a jewelry store, shooting a police officer, shooting a
citizen, and trying to hijack a car by attempting to shoot its
driver, id. There was “overwhelming physical and
testimonial evidence showing that [petitioner] had
perpetrated the crimes and killed the [victims] in a brutal and
callous fashion.” Id. The State had “near conclusive proof
of guilt on the murder charges as well as extensive evidence
demonstrating the cruelty of the killings.” Id. at 699.
16 KELSEY V. GARRETT
At trial, defense counsel conceded that Cone had
committed most of the acts in question but sought to prove
that he was not guilty by reason of insanity. Id. at 690.
Counsel presented extensive mitigating evidence during the
guilt stage of the proceedings. Id. Defense experts testified
to the petitioner’s post-traumatic stress disorder developed
while serving in Vietnam and to the petitioner’s chronic
amphetamine psychosis, hallucinations, and paranoia, which
affected his ability to obey the law. Id. Petitioner’s mother
testified that Vietnam had changed her son and spoke about
the deaths of his father and fiancée while he was serving an
eight-year prison sentence for robbery.
The day after the trial concluded, a three-hour sentencing
hearing took place. Id. The trial judge explicitly advised the
jury that even though the evidence at trial was insufficient to
establish an insanity defense, it could be considered as
mitigation evidence at sentencing. Id. at 691. According to
the Court, the prosecution’s evidence at sentencing was not
“particularly dramatic or impressive.” Id. at 701. And, at
the close of the hearing, the junior prosecuting attorney gave
a brief “low-key” closing, id. at 692, that “did not dwell on
any of the brutal aspects of the crime,” id. at 701.
Upon hearing that closing argument, defense counsel
waived his own closing argument to prevent the lead
prosecutor, who was regarded as “an extremely effective
advocate,” from arguing in rebuttal. Id. at 692. Defense
counsel’s choice to prevent the prosecution from
“depict[ing] his client as a heartless killer, just before the
jurors began deliberation,” id. at 702, the Court explained,
was reasonable—under those circumstances, counsel
reasonably could have relied “on the jurors’ familiarity with
the case and his opening plea for life made just a few hours
before,” id.KELSEY V. GARRETT 17
Respondents argue that the facts of this case are identical
to those in Bell, and that the outcome in Bell precludes relief
here. We disagree. Even assuming Edwards’ strategy was
similar to counsel’s strategy in Bell, a strategy that is
sufficient in one case can be deficient in another case. See
Strickland, 466 U.S. at 690 (explaining that courts must
assess reasonableness “in light of all the circumstances”).
In Bell, defense counsel’s waiver of closing argument
was a tactical decision because he knew that the lead
prosecutor was going to deliver the rebuttal and all he could
do on closing was repeat arguments from his opening
statement (which he had delivered only a “few hours
before”) and “impress upon the jurors the importance of
what he believed were less significant facts.” See 535 U.S.
at 701-02. By contrast, Edwards waived closing argument
only because Ohlson suggested that they do so—before their
conversation during the lunch break, Edwards had prepared
to give a closing. Edwards claimed that the “strategy”
behind waiving closing was to keep the prosecutor from
arguing first-degree murder, but Edwards acknowledged that
the junior prosecutor was “[n]ot at all” arguing for a first-
degree conviction for Kelsey in her approximately two-hour-
long opening remarks.
Further, unlike in Bell, Edwards’ defense was not
thorough without closing argument—Edwards had
purposefully left details out of his opening statement
(delivered over a week prior) because he planned to use
closing argument to “come back” to the jury to explain how
“[t]his is not a murder case, at least from Zach Kelsey’s
perspective.” Because he waived closing, Edwards also
gave up the ability to address the jury on the proximate
cause, misdemeanor battery, and involuntary manslaughter
instructions he had prepared, all of which were central to his
18 KELSEY V. GARRETT
theory of the defense. At trial, the only witness Edwards
called was Kelsey, and, unlike in Bell where defense counsel
had presented extensive mitigating evidence just the day
before, closing argument was the only opportunity for
Edwards to present his defense that Kelsey was not guilty of
second-degree murder and to differentiate Kelsey’s
culpability from that of Jefferson and Schnueringer. See
Herring, 422 U.S. at 862 (“[I]t is only after all the evidence
is in that counsel for the parties are in a position to present
their respective versions of the case as a whole.”).
Edwards’ decision to waive closing argument was also
unreasonable under prevailing professional norms. While
there is no ABA Guideline addressing the potential waiver
of closing argument, Ohlson and Edwards were both
seasoned defense attorneys at the time of Kelsey’s trial, and
thus, their experiences can give us some indication of the
profession’s “norms.” See Wiggins v. Smith, 539 U.S. 510,
523, 524-25 (2003) (looking to the ABA Guidelines to
define “prevailing professional norms.”). Before this trial,
Ohlson had defended more than 30 murder cases that went
to trial and Edwards had tried at least 20 cases to verdict as
a defense attorney. This trial was the first time that either
attorney had ever waived closing argument, and for
Edwards, “[it] might be the last.” Ohlson admitted that he
would not have waived closing argument if he were Kelsey’s
attorney.
In sum, the importance of closing argument to Kelsey’s
case cannot be overstated. While waiving closing argument
may have been a tactical choice for Ohlson, the purportedly
tactical reasons Edwards offered after the fact do not
withstand even moderate scrutiny and are not reasonable in
light of prevailing professional norms.
KELSEY V. GARRETT 19
ii. Prejudice
We hold that Kelsey successfully showed that he was
prejudiced by Edwards’ waiver of closing argument. Had
Edwards made a closing argument, he could have explained
that Kelsey’s actions were not the proximate cause of Hyde’s
death and asked the jury to convict, if at all, on a lesser
offense.
In Herring, the Supreme Court highlighted the
importance of closing arguments to the “adversary
factfinding process.” See 422 U.S. at 858 (“The right to the
assistance of counsel has thus been given a meaning that
ensures to the defense in a criminal trial the opportunity to
participate fully and fairly in the adversary factfinding
process. There can be no doubt that closing argument for the
defense is a basic element of the adversary factfinding
process in a criminal trial.”). Closing argument is all the
more important in a trial as lengthy as the one in this case,
which lasted for over seven days and included over twenty
witnesses and over fifty exhibits.
Here, taking into consideration the combined effect of
failing to consult an expert and waiving closing argument in
a joint trial, we conclude that Edwards “entirely failed” to
oppose the prosecution. Because he did not present an
expert of his own and did not give a closing argument, at no
point during trial did Edwards have an opportunity to
differentiate his client from the other defendants in the case
and argue for, ideally, simple battery or, at worst,
involuntary manslaughter. The jury received instructions on
the lesser offenses, but Edwards never explained them to the
jury, though he clearly intended to do so initially. In his
opening statement, Edwards told the jury that “after [they]
hear[d] all the evidence,” he was going to ask them to
20 KELSEY V. GARRETT
conclude that Kelsey did not murder Hyde. Edwards
promised that he would “come back” to the jury and “discuss
the evidence again,” but by waiving closing argument,
Edwards never did “come back” to the jury as he had
promised.
As this was a joint trial with varying defense theories and
degrees of culpability—unlike in Bell and Yarborough—
closing argument was a critical opportunity for Edwards to
distinguish and disentangle Kelsey’s culpability from that of
his co-defendants. Instead, by the end of the trial, Edwards’
defense seemed no different than those presented by counsel
for Kelsey’s co-defendants, despite their defense theories
being completely different. This was a grave deficiency in
the defense causing prejudice to Kelsey.
iii. AEDPA
The Nevada Court of Appeals correctly identified
Strickland as the relevant “clearly established federal law”
for an IAC claim, but the Nevada court then unreasonably
applied Strickland to Kelsey’s case.
First, as to the deficient performance prong of Strickland,
the Nevada court unreasonably applied Strickland when it
accepted Edwards’ implausible explanations for waiving
closing argument. Strickland requires courts to evaluate
counsel’s decisions for reasonableness in light of counsel’s
“perspective at the time of the alleged error . . . and in light
of all of the circumstances.” 466 U.S. at 689; see
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); see also
id. at 386 (noting that “counsel offered only implausible
explanations” for his challenged failure). Here, Edwards’
decision to waive closing argument was unreasonable for all
of the reasons stated above.
KELSEY V. GARRETT 21
Edwards said that he agreed to waive closing argument
because he did not want to give the prosecutor an
opportunity to argue for first-degree murder in rebuttal. The
Nevada court accepted this explanation as tactical in nature,
but it was implausible that the prosecution would argue for
first-degree murder in rebuttal. The junior prosecutor had
only advocated for second-degree murder during her two-
hour-long opening remarks and had “[n]ot at all” argued for
or suggested a first-degree murder conviction for Kelsey.
Similarly, the Nevada court reasoned that Edwards’ decision
was tactical because he feared that the State’s rebuttal would
be “much more persuasive,” but that fear is similarly
unsubstantiated given the exhaustive nature of the State’s
initial closing. The Nevada court unreasonably applied
Strickland by not evaluating Edwards’ decision to waive
closing argument for reasonableness.
Second, as to the prejudice prong, the Nevada court
unreasonably applied Strickland because there was a
“reasonable probability” of a better outcome for Kelsey if
Edwards had given closing argument. 466 U.S. at 694.
Edwards had prepared jury instructions regarding proximate
causation, simple battery, and involuntary manslaughter, but
as explained above, he waived the opportunity to explain
those instructions and to ask the jury to find Kelsey guilty of
one of these lesser offenses. Closing argument was
Edwards’ only chance to present his theory of the case to the
jury and to explain his jury instructions. If Edwards had not
given up this critical opportunity to address the jury, there is
a reasonable probability that the outcome of this case would
have been different for Kelsey, especially considering the
combined effect of failing to consult with an expert in a joint
trial with varying degrees of culpability.
22 KELSEY V. GARRETT
b. Not consulting a forensic pathologist expert
Kelsey argues that Edwards was ineffective for failing to
consult a forensic pathologist expert. He argues that
Edwards’ decision not to consult an expert was not based on
strategy and that he was prejudiced by this decision. Again,
we agree.
i. Deficient performance
“[Counsel] has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
“Strategic” choices made after “less than complete
investigation” are reasonable only to the extent that
“reasonable professional judgments support the limitations
on investigation.” Id. at 690-91; see also Harrington v.
Richter, 562 U.S. 86, 106 (2011) (“Criminal cases will arise
where the only reasonable and available defense strategy
requires consultation with experts or introduction of expert
evidence . . . .”); Duncan, 528 F.3d at 1235 (“[W]hen the
prosecutor’s expert witness testifies about pivotal evidence
or directly contradicts the defense theory, defense counsel’s
failure to present expert testimony on that matter may
constitute deficient performance.”); Jennings v. Woodford,
290 F.3d 1006, 1014 (9th Cir. 2002) (“[A]ttorneys have
considerable latitude to make strategic decisions about what
investigations to conduct once they have gathered sufficient
evidence upon which to base their tactical choices.”).
In Duncan v. Ornoski, we held that counsel’s
performance was deficient because he failed to consult an
expert on potentially exculpatory evidence. 528 F.3d at
1235. In the murder case, counsel’s defense theory was that
his client did not kill the victim. Id. However, without
consulting and presenting an expert, counsel was unable to
KELSEY V. GARRETT 23
either present specific evidence that his client was not the
murderer or advance a plausible alternative defense theory.
Id. We found counsel’s failure to consult an expert to be
particularly deficient because he did not have any
“knowledge or expertise” about the field of serology and
there were blood samples that, if tested, could have shown
Duncan was not the murderer. Id. Counsel had an
“increased” duty to seek the assistance of an expert because
the potentially exculpatory evidence to be gained from
consultation with an expert could have played a “central
role” at trial. Id. at 1236. Had counsel consulted an expert,
he would have been in a position to make strategic choices
about whether to share the expert’s findings, but without
expert consultation, he had “no basis on which to devise his
defense strategy.” Id.In Wiggins v. Smith, the Supreme Court held that the
petitioner’s counsel’s decision not to expand their
investigation beyond a presentence report and certain
records fell short of prevailing professional standards and
prejudiced the petitioner. 539 U.S. at 524. Counsel did not
present any additional mitigating evidence from the
petitioner’s background even though there was plenty of
mitigating evidence available. Id. at 525. The Court held
that counsel’s performance was deficient for conducting an
“unreasonable investigation.” Id. at 528. Counsel argued
that it was a tactical decision not to focus on the petitioner’s
background at sentencing, but the Court found that counsel
“were not in a position to make a reasonable strategic
choice . . . because the investigation supporting their choice
was unreasonable.” Id. at 536. The Court found counsel’s
investigation to be “incomplete” and the result of
“inattention, not reasoned strategic judgment.” Id. at 534.
24 KELSEY V. GARRETT
Here, Edwards did not conduct a reasonable
investigation. The central issue at trial was the cause of
Hyde’s death, and Edwards’ defense theory was that
“[Kelsey] was guilty at best of the lesser included offense of
simple battery and that he was not guilty of murder.” But
even though he was not an expert in forensic pathology
himself, Edwards did not contact, consult with, or present,
an expert questioning whether Kelsey’s actions caused
Hyde’s death. See Duncan, 528 F.3d at 1235-36. Like in
Duncan, where the potentially exculpatory blood evidence
could have played a “central role,” expert testimony like that
of Dr. Llewellyn or Dr. Terri Haddix, with whom Ohlson
had consulted, could have been central to Edwards’ defense
of Kelsey. Id. at 1236. This was clear to Ohlson, who
explained that he did not share the views of Dr. Haddix with
Edwards because he felt the information was “possibly
exculpatory to Mr. Edwards’ client, [but] was inculpatory to
Mr. Molezzo’s and more particularly to [his own] client.”
Respondents argue that Edwards was not ineffective because
Dr. Llewellyn’s testimony was not exculpatory, but there is
no requirement that potential information from the forgone
investigation be game-changing. It is enough that Edwards
knew the testifying experts—Dr. Clark and Dr. Omalu—
would contradict his defense theory and nevertheless failed
to present countervailing expert testimony on that subject or
even to consult with an expert to aid in his cross-examination
and trial preparation. See Duncan, 528 F.3d at 1235-36.
Edwards’ decision not to consult with a forensic
pathologist expert was unreasonable. Like in Wiggins,
where counsel was not in a position to make a strategic
decision, Edwards was not in a position to make a strategic
decision about presenting expert testimony because he did
not even contact or consult with an expert. See 539 U.S. at
KELSEY V. GARRETT 25
536. Had Edwards consulted with an expert and then
decided to not have that expert testify at trial, our analysis
would be different. But instead, Edwards simply relied upon
Ohlson’s assessment that Dr. Haddix’s expert opinion would
not be good for the defense. This was not a tactical decision
because Edwards had not gathered sufficient evidence to
make a sound strategic decision.
ii. Prejudice
In Duncan, we held that counsel’s failure to investigate
potentially exculpatory blood samples prejudiced his client
because had counsel conducted a proper investigation, “it is
likely that at least one juror would have had a reasonable
doubt” about his client’s guilt. 528 F.3d at 1244. We
reasoned that had counsel consulted an expert, he would
have been better prepared for aspects of trial such as the
cross-examination of the State’s expert. Id. at 1241.
Without expert consultation regarding the potentially
exculpatory evidence, all the physical evidence presented at
trial suggested that the defendant was guilty. Id. at 1246.
Because counsel did not consult with or call an expert, the
jury did not get to hear “convincing evidence” that would
have supported counsel’s defense theory. Id. at 1241.
During the state post-conviction proceedings, Dr.
Llewellyn testified that, to a reasonable degree of medical
certainty, Schnueringer and Jefferson’s attack caused
Hyde’s death. While she said it was possible that Kelsey’s
punches caused or contributed to Hyde’s death,
Schnueringer and Jefferson’s attack was the more probable
cause. Significantly, Dr. Llewellyn testified that all of
Hyde’s injuries could be attributed to Schnueringer and
Jefferson’s attack, but that she could not conclude that
Hyde’s injuries were caused solely by Kelsey. She testified
26 KELSEY V. GARRETT
that Schnueringer’s punch, which sounded like the crack of
a baseball bat, was a very severe blow, and that Hyde’s
injuries were consistent with stomping. She testified that
there were no distinctive marks on Hyde to indicate that he
had been hit with brass knuckles. Finally, she testified that
she disagreed with Dr. Omalu’s finding that every punch
necessarily contributed to Hyde’s death. This testimony
would have been powerful evidence for the jury, especially
when confronted with the witness testimony describing how
different Kelsey’s fight with Hyde was from the attack on
Hyde by Schnueringer and Jefferson.
The difference between: (a) presenting testimony by an
expert like Dr. Llewellyn or Dr. Haddix alongside the
testimonies of Dr. Clark and Dr. Omalu versus (b) only
presenting the testimonies of Dr. Clark and Dr. Omalu is
sufficient to undermine confidence in Kelsey’s conviction of
second-degree murder. Like in Duncan, where counsel’s
failure to consult an expert resulted in the jury not being able
to hear convincing evidence supporting counsel’s defense
theory, had Edwards presented a forensic pathologist expert
of his own, the jury would have heard about the difference
in injuries from face-to-face fights (like that between Kelsey
and Hyde) and more brutal attacks involving kicking
someone in the head while they are down (like Schnueringer
and Jefferson’s attack on Hyde). See 528 F.3d at 1241.
Even under Respondents’ version of the facts—that
Kelsey hit Hyde in the face twice and then kneed him in the
head twice after Hyde fell down—Dr. Llewellyn opined that
Kelsey’s actions were less likely than the actions of
Schnueringer and Jefferson to have caused the fatal bleeding
in Hyde’s brain. The jury did not get to hear this testimony.
Instead, like in Duncan, where the jury did not get to hear
about any physical evidence indicating the defendant’s
KELSEY V. GARRETT 27
innocence, they heard no disagreement with the opinions of
Dr. Clark and Dr. Omalu. It is reasonable to conclude that,
presented with an expert in disagreement with Dr. Clark and
Dr. Omalu, at least one juror would have been swayed to
have a reasonable doubt because of the disagreeing expert.
Thus, there is a reasonable probability that the jury would
have returned with a different sentence.
iii. AEDPA
The Nevada Court of Appeals did not address whether
Edwards was deficient for failing to consult a forensic
pathologist expert, so § 2254 deference is only owed to its
analysis of the prejudice prong. See Rompilla, 545 U.S. at
390. The Nevada Court of Appeals held that substantial
evidence supported the district court’s decision that “Kelsey
failed to demonstrate a reasonable probability of a different
outcome at trial had counsel presented an expert” because
Dr. Llewellyn “could not establish which arteries caused the
hemorrhaging in the victim’s brain and her testimony could
not be differentiated from that of the experts presented by
the State.”
The Nevada Court of Appeals’ and the state district
court’s decisions involved an unreasonable application of
clearly established federal law because they did not accord
appropriate weight to the potential force of countervailing
expert testimony in this case where causation was so critical
and because they failed to consider the combined prejudicial
effect of both deficiencies (waiver of closing argument and
failure to consult with an expert).
The Nevada courts’ analyses focused primarily on the
potential effect of Edwards’ failure to call Dr. Llewellyn
specifically. But Kelsey was not prejudiced solely by his
counsel’s failure to call Dr. Llewellyn; he was prejudiced by
28 KELSEY V. GARRETT
his counsel’s failure to contact, consult with, or call any
expert at all. There is, at least, a reasonable probability that
the outcome of this case would have been different if
Edwards had consulted with a forensic pathologist expert
because countervailing expert testimony could have been
exculpatory for Kelsey. Causation was the central issue at
trial, and a countervailing expert like Dr. Llewellyn could
have clearly explained the difference in injuries from
teenage fistfights and involuntary attacks.
The Nevada courts considered each instance of deficient
performance by counsel independently and did not consider
the combined prejudicial effect of the two deficiencies. This
was an unreasonable application of Strickland. The
prejudice prong of Strickland asks whether “the decision
reached would reasonably likely have been different absent
the errors.” 466 U.S. at 696. In addition to using “errors,”
i.e., the plural form of the word, it is clear that courts are to
consider the combined prejudicial effect of multiple errors
because the prejudice prong concerns the ultimate decision
at trial. In making decisions, courts consider the totality of
the evidence before the judge or jury, so it is clear that a
Strickland prejudice determination should be based upon the
total effect of all of counsel’s errors.
In this case, although Edwards’ defense was that Kelsey
was not the proximate cause of Hyde’s death and that he was
guilty at most of misdemeanor battery or involuntary
manslaughter, Edwards never presented that defense to the
jury. The jury never heard from a defense expert that
Kelsey’s blows were, to a reasonable degree of medical
certainty, not fatal. And at the end of the trial, the jury was
asked by the State to find all three defendants guilty of
second-degree murder, without any opposition from the
defense because Edwards waived closing argument at the
KELSEY V. GARRETT 29
behest of a clear adversary. While waiving closing might
have made sense for Jefferson and Schnueringer, it was
catastrophic for Kelsey, whose defense was premised on the
fact that his actions were entirely distinguishable from
Schnueringer and Jefferson’s. On these facts, we conclude
that, particularly given the combined effect of Edwards’
decision to waive closing argument, Kelsey was prejudiced
by Edwards’ failure to consult a forensic pathologist expert.
IV. CONCLUSION
REVERSED and REMANDED with instructions to
issue the writ of habeas corpus.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. Scott Edwards, trial counsel for
Petitioner Zachary Kelsey, made tactical decisions to waive
closing argument and to forgo consulting a forensic
pathologist. Those decisions neither fell below an objective
standard of reasonableness nor prejudiced Petitioner.
Therefore, the state court’s denial of Petitioner’s habeas
petition was not an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984). I would affirm.
A. Waiver of Closing Argument
The majority opinion concludes that Petitioner’s trial
counsel was ineffective because he waived closing argument
and because that decision prejudiced Petitioner. Maj. Op. at
9. But the majority opinion fails to give proper deference to
the decisions of Petitioner’s trial counsel and to the decision
of the state court. Under 28 U.S.C. § 2254(d), review of an
ineffective-assistance-of-counsel claim is “doubly
30 KELSEY V. GARRETT
deferential,” requiring deference under both the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
and Strickland. Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). Overcoming the deference owed under Strickland is
no easy task. “[E]ven if there is reason to think that [trial]
counsel’s conduct ‘was far from exemplary,’ a court still
may not grant relief if ‘[t]he record does not reveal’ that
counsel took an approach that no competent lawyer would
have chosen.” Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021)
(quoting Burt v. Titlow, 571 U.S. 12, 22–23
(2013))(emphasis added).
Edwards testified that he had prepared a closing
argument but decided to forgo it because the junior
prosecutor presented a lackluster closing argument. By
waiving closing argument, Edwards deprived the senior
prosecutor of the opportunity to give a compelling rebuttal.
Edwards reasonably was concerned about the jurors’ hearing
a rebuttal from the senior prosecutor, as Edwards had seen
him vigorously cross-examine defense witnesses throughout
trial.
The majority opinion suggests that Edwards’ strategy
was imprudent because it seemingly was informed by a
mistaken belief that the senior prosecutor would argue in
favor of a first-degree murder conviction for Petitioner—
even though the junior prosecutor had not done so in her
closing argument. Maj. Op. at 10–11, 15. Although
Edwards testified that the possibility of such an argument
“went into [his] calculation,” there is no indication that this
was his sole rationale. He reasonably did not want to open
the door for the senior prosecutor to make an argument about
anything that could harm his client, including, but not
limited to, first-degree murder. Although “[t]he right to
effective assistance [of counsel] extends to closing
KELSEY V. GARRETT 31
arguments,” counsel is entitled to “wide latitude in deciding
how best to represent a client.” Yarborough v. Gentry, 540
U.S. 1, 5–6 (2003) (per curiam). And, as the Supreme Court
has recognized, “it might sometimes make sense to forgo
closing argument altogether.” Id. at 6. Given the
circumstances, I cannot conclude that Edwards’ decision to
waive closing argument was a decision that “no competent
lawyer would have chosen.” Dunn, 141 S. Ct. at 2410.
Additionally, Edwards reasonably agreed to the proposal
by John Ohlson, defendant Robert Schnueringer’s attorney,
that all of the codefendants waive closing argument. Not
only was Edwards worried about the government’s giving a
persuasive rebuttal, he also had an interest in preventing the
codefendants from presenting a closing argument that could
hurt his client. The codefendants had argued that Petitioner
started the fight with the victim and used brass knuckles to
commit the most brutal part of the attack.1 Edwards already
felt “sandbagged” by Ohlson, who had attacked Petitioner’s
credibility by noting that Petitioner was associated with a
neo-Nazi movement and had bragged about killing the
victim. Given the demonstrated hostility of the
codefendants, Edwards made a legitimate strategic choice to
shield the jury from any reminder of the codefendants’
damaging accusations right before the jury began
deliberations. Contrary to the majority opinion’s
characterization of Edwards’ actions, he did not waive
closing argument “only because Ohlson suggested that they
do so.” Maj. Op. at 15.
1
Schnueringer presented three witnesses at trial—Aaron Simpson,
Zachary Fallen, and Zachary Smith—and each one testified that
Petitioner told them (a) that he had used brass knuckles in the fight and
(b) that the last person Petitioner had hit died.
32 KELSEY V. GARRETT
The majority opinion fairly notes that Edwards’ defense
might have been aided by a closing argument that explicitly
addressed issues like proximate cause. Maj. Op. at 15. But
that argument rests on the “distorting effects of hindsight.”
Strickland, 466 U.S. at 689. We “must judge the
reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. In my view, the decision to waive
closing argument was “precisely the sort of calculated risk
that lies at the heart of an advocate’s discretion.” Gentry,
540 U.S. at 9.
Petitioner also failed to demonstrate that Edwards’
waiver prejudiced him. The majority opinion asserts that,
had Edwards taken the opportunity to present a closing,
Petitioner’s culpability could have been distinguished from
his codefendants’. Maj. Op. at 15–16. But under Strickland,
“[t]he likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562 U.S. 86, 112
(2011). Even in the absence of a closing argument, Edwards
took advantage of his opening statement, his questioning of
witnesses, and his client’s own testimony to present a robust
defense. See Hovey v. Ayers, 458 F.3d 892, 906–07 (9th
Cir. 2006) (“Where counsel’s failure to oppose the
prosecution occurs only in isolated points during the trial, we
will not presume prejudice.”). Moreover, the court
instructed the jury to base its verdict on the evidence
presented at trial, not on the statements of counsel.
Even if Edwards’ decision to waive closing argument
was questionable, we also must apply the deference
mandated by AEDPA. Knowles, 556 U.S. at 121, 123. In
particular, federal habeas relief is not available whenever we
disagree with a state court’s decision. We may grant the writ
only if we conclude that the state court’s decision was
KELSEY V. GARRETT 33
“contrary to, or involved an unreasonable application of,
clearly established [f]ederal law.” 28 U.S.C. § 2254(d)(1).
Here, not only was the decision to waive closing
argument objectively reasonable in the circumstances, it also
is essentially the same strategy that the Supreme Court
approved in Bell v. Cone, 535 U.S. 685 (2002). As in Bell,
Edwards faced two options: he could give a closing
argument and thus give the lead prosecutor, who was very
persuasive, the chance to depict his client as a heartless killer
just before the jurors began deliberations, or he could
prevent the lead prosecutor from doing so by waiving his
own closing argument. See Bell, 535 U.S. at 701–02. The
Supreme Court held that “[n]either option . . . so clearly
outweigh[ed] the other that it was objectively unreasonable
for the [state court] to deem counsel’s choice to waive
argument a tactical decision about which competent lawyers
might disagree.” Id. at 702. The same is true here. Even if
Bell is distinguishable, the factual differences are not
significant enough to render unreasonable the Nevada state
court’s decision under Strickland.2 Thus, Petitioner has not
shown that the state court’s interpretation is “so obviously
wrong that its error lies ‘beyond any possibility for
2
Although the majority opinion distinguishes Bell by arguing that the
decisions of Cone’s trial counsel reflected tactical decision-making far
superior to that of Kelsey’s counsel, Maj. Op. at 15, the facts of Bell
reveal the opposite. Bell involved a death penalty case in which the need
for a competent closing argument was significantly more important. See
Bell, 535 U.S. at 714 (Stevens, J., dissenting) (“Perhaps that burden was
insurmountable, but the jury must have viewed the absence of any
argument in response to the State’s case for death as [trial counsel’s]
concession that no case for life could be made. A closing argument
provided the only chance to avoid the inevitable outcome of the
‘primrose path’—a death sentence.” (emphasis added)).
34 KELSEY V. GARRETT
fairminded disagreement.’” Shinn v. Kayer, 141 S. Ct. 517,
523 (2020) (per curiam) (quoting Richter, 562 U.S. at 103).
B. Failure to Consult a Forensic Pathology Expert
The majority opinion also argues that Edwards was
ineffective for failing to consult a forensic pathologist.3 Maj.
Op. at 20. Under Strickland, “attorneys have considerable
latitude to make strategic decisions about what
investigations to conduct once they have gathered sufficient
evidence upon which to base their tactical choices.”
Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002)
(emphasis omitted). Edwards already possessed reports
from two well-respected experts, and both concluded that
Petitioner’s actions could have contributed directly to the
victim’s death.4 The majority opinion chides Edwards for
failing to call a third expert, Dr. Amy Llewellyn. Maj. Op.
at 23–24. But Dr. Llewellyn never expressly disavowed the
prosecution’s theory that Petitioner’s attack contributed to
the victim’s death. Though Dr. Llewellyn’s testimony was
less damning than that of the prosecution’s experts, she
admitted that, if Petitioner knocked the victim down and
kneed him in the head, as the evidence showed he did, those
acts could cause “a concussion or an injury to the brain” and
“could cause the brain to bleed.” In other words, even Dr.
3
The Nevada Court of Appeals concluded that Petitioner failed to
demonstrate prejudice, without addressing the issue of deficient
performance. Accordingly, we review de novo whether Petitioner
demonstrated deficient performance. Tamplin v. Muniz, 894 F.3d 1076,
1083 (9th Cir. 2018).
4
At trial, Dr. Clark testified that she observed five separate areas of
bleeding on the victim’s brain. She concluded that the victim died from
the cumulative effect of the blows to his head. Dr. Omalu agreed with
Dr. Clark’s findings.
KELSEY V. GARRETT 35
Llewellyn recognized that Petitioner’s actions could have
been a substantial factor in the victim’s death. As will be
explained below, Petitioner is guilty of the crime of
conviction even if his acts were only a “substantial factor”
in the killing. And if Dr. Llewellyn’s opinion was indicative
of the testimony of other independent experts,5 Edwards
would have invested significant time and energy pursuing an
issue that ultimately would have proved fruitless.
In its analysis of the deficient-performance prong, the
majority opinion relies on Duncan v. Ornoski, 528 F.3d 1222(9th Cir. 2008), a case in which defense counsel’s failure to
consult an expert resulted in key exculpatory evidence going
unexplored. See id. at 1236 (holding that defense counsel’s
failure to consult an expert meant that he “had no basis upon
which to devise his defense strategy”). Unlike in Duncan,
Edwards’ failure to consult an expert did not deprive him of
a viable defense strategy. Edwards knew that causation
would be a major issue in the trial, and he skillfully cross-
examined witnesses in a way that suggested that the fatal
blows did not come from his client.
Consultation with an expert might have facilitated a
more elegant presentation of the defense’s theory. But
Edwards testified that, despite declining to consult with an
expert, he “didn’t feel like [he] was undermanned” when
5
The majority opinion refers to a hearsay statement attributed to Dr.
Haddix, who never testified, was never cross-examined, and never
authored an expert report. Maj. Op. at 23. But it is improper to rely on
that hearsay statement for the truth of the matter asserted. At the
deposition, Petitioner explicitly agreed that he was not offering that
statement for the truth of the matter asserted. And the record contains
no expert testimony suggesting that Petitioner’s actions were not a
substantial factor in the victim’s death.
36 KELSEY V. GARRETT
questioning the government’s experts. This court should not
expand Strickland to stand for the proposition that a defense
attorney always must consult with an expert when the
government puts forth its own expert. Cf. Richter, 562 U.S.
at 111 (“Strickland does not enact Newton’s third law for the
presentation of evidence, requiring for every prosecution
expert an equal and opposite expert from the defense.”).
The majority opinion also fails to explain precisely how
consultation with any forensic expert would have resulted in
a different outcome at trial. The government charged
Petitioner with open murder, which included second-degree
murder. Under Nevada law, Petitioner was guilty of second-
degree murder if he killed the victim and acted with
“reckless disregard of consequences and social duty,” Guy
v. State, 839 P.2d 578, 582–83 (Nev. 1992), or if he
committed an unlawful act that “naturally tends” to take the
life of a human being, Sheriff v. Morris, 659 P.2d 852, 858–
59 (Nev. 1983). The state court found that the medical
examiner who conducted the forensic autopsy “testified that
the first blow to [the victim’s] head could have been the fatal
blow.”6 Kelsey v. State, 130 Nev. 1204, 2014 WL 819465,
at *2 (Feb. 27, 2014). And the evidence is undisputed that
Petitioner delivered the first blows to the victim’s head. As
the state court found, Petitioner “struck [the victim] twice in
the head” even though the victim had his hands in the air at
the time and that Petitioner then “kneed him in the head
twice” as the victim fell to the ground. Id. at *1.
Although the majority opinion downplays the
significance of the harm inflicted by Petitioner, likening it to
6
Petitioner did not challenge the state court’s findings of fact, so those
facts are conclusive. 28 U.S.C. 2254(e)(1).
KELSEY V. GARRETT 37
a teenage squabble, the undisputed facts suggest that
Petitioner’s actions could have been just as damaging as the
“savage, brutal beating” delivered by Schnueringer and
Jefferson. Maj. Op. at. 5. As long as Petitioner’s acts were
a substantial factor in the victim’s death, the mere fact that
an expert could opine that he did not deliver the final fatal
blow does not absolve him of criminal liability. See
Etcheverry v. State, 821 P.2d 350, 351 (Nev. 1991) (per
curiam) (“[A]n intervening cause must be a superseding
cause, or the sole cause of the injury in order to completely
excuse the prior act.” (emphasis omitted)).
In sum, the state court reasonably concluded that
Petitioner failed to meet the requirements of Strickland as to
either the waiver of closing argument or the decision not to
consult a forensic pathology expert. I would affirm the
district court’s denial of habeas relief and, therefore, dissent.