Hoyt Crace v. Robert Herzog

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HOYT CRACE, No. 13-35650
Petitioner-Appellee,
D.C. No.
v. 3:12-cv-05672-RBL

ROBERT HERZOG,
Respondent-Appellant. OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued and Submitted
October 7, 2014—Seattle, Washington

Filed August 14, 2015

Before: Richard A. Paez, Jay S. Bybee,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Bybee;
Dissent by Judge Callahan
2 CRACE V. HERZOG

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s judgment granting
a habeas corpus petition brought by a Washington state
prisoner who was convicted by a jury of two misdemeanor
offenses and one count of attempted second degree assault, a
felony, and received a life sentence without the possibility of
parole under Washington’s three-strikes law.

Petitioner claimed that his trial counsel was deficient for
failing to request a jury instruction on “unlawful display of a
weapon,” a lesser included offense of second degree assault,
because, had he been convicted of unlawful display of a
weapon, rather than attempted second degree assault, he
would have avoided a third strike.

Agreeing with the Third Circuit, the panel held that the
Washington Supreme Court’s rejection of petitioner’s claim
under Strickland v. Washington was an unreasonable
application of clearly established federal law under the Anti-
Terrorism and Effective Death Penalty Act. The panel held
that, in determining whether there was a reasonable
probability that the outcome of the proceeding would have
been different if counsel had performed adequately,
Strickland’s prejudice prong required an assessment of the
likelihood that petitioner’s jury would have convicted only on
the lesser included offense, rather than an assessment of
whether sufficient evidence supported the jury’s verdict.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CRACE V. HERZOG 3

On de novo review, the panel concluded that petitioner’s
claim of ineffective assistance of counsel warranted relief.
The panel concluded that it was reasonably probable that, if
given an additional option, the jury would have convicted the
petitioner only of unlawful display of a weapon. The panel
also concluded that counsel’s failure to request the lesser
included offense instruction constituted deficient performance
under Strickland.

Dissenting, Judge Callahan wrote that the Washington
Supreme Court’s decision was not contrary to or an
unreasonable application of clearly established federal law,
and so AEDPA compelled deference to the state court.
Accordingly, she would reverse the district court’s grant of
habeas relief.

COUNSEL

Robert W. Ferguson, Attorney General, Paul D. Weisser
(argued), Senior Counsel, Attorney General’s Office,
Corrections Division, Olympia, Washington, for Respondent-
Appellant.

Jeffrey Erwin Ellis (argued), Law Offices of Alsept & Ellis,
Portland, Oregon, for Petitioner-Appellee.
4 CRACE V. HERZOG

OPINION

BYBEE, Circuit Judge:

In 2004, a Washington jury convicted Hoyt Crace of two
misdemeanor offenses and one count of attempted second-
degree assault—a felony—stemming from an incident in
which he brandished a sword at a police officer. The
attempted assault conviction constituted Crace’s third strike
under Washington’s three-strikes law, and he received a life
sentence without the possibility of parole.

After Crace’s conviction became final, he brought a claim
for postconviction relief under Strickland v. Washington,
466 U.S. 668 (1984), arguing that his trial counsel was
deficient for failing to request a jury instruction on “unlawful
display of a weapon,” a lesser included offense of second
degree assault. Had Crace been convicted of unlawful
display of a weapon, rather than attempted second-degree
assault, he would have avoided a third strike.

The Washington Supreme Court rejected Crace’s
Strickland claim. The court held that, because Crace’s jury
had found him guilty beyond a reasonable doubt of attempted
second-degree assault, Strickland required a reviewing court
to presume that the jury would have reached the same verdict
even if instructed on a lesser offense. In light of that
presumption, the court concluded that defense counsel’s
failure to request a lesser-included-offense instruction caused
no prejudice to Crace.

We hold that the Washington Supreme Court’s decision
was an unreasonable application of clearly established federal
law under AEDPA and, on de novo review, we conclude that
 CRACE V. HERZOG 5

Crace’s claim of ineffective assistance of counsel warrants
relief. We therefore affirm the district court’s judgment
granting Crace’s petition for a writ of habeas corpus.

I

Hoyt Crace spent the morning of August 16, 2003, doing
repairs to the windows of a mobile home owned by an
acquaintance of his in Tacoma, Washington.1 Crace was
living in this trailer while its owner was away. Sometime
around ten in the morning, a neighbor who lived in the same
trailer park came by and asked Crace if he ever “g[o]t high”;
Crace, who has a history of drug use, responded that he did.
The two began drinking together and, over the next several
hours, Crace consumed eight to ten alcoholic coolers, roughly
a gram of cocaine, two painkillers, and a “quarter piece” of
heroin. Around one or two in the afternoon, the neighbor
departed. Crace lay down to watch a video and soon fell
asleep.

Crace awoke around 2:00 a.m. in a panicked state. He
was “hearing voices and seeing things” and felt that someone
or something was “going to brutally murder” him and that he
needed to escape. He left the trailer where he was staying in
an attempt to locate the trailer of two women whom he knew,
where he hoped to find “safe haven” from his pursuers.

Crace mistakenly entered the trailer of a neighbor, Rita
Whitten. After screaming and then rifling through Whitten’s

1
We take this narrative from the various witnesses, including Crace,
who testified at trial. Our account derives from the testimony offered that
the jury might have credited. We do not adopt any particular theory of
what, in fact, occurred.
6 CRACE V. HERZOG

kitchen cabinets, he ran back outside. Crace eventually made
his way back to the trailer where he was staying; he went
inside, grabbed a sword off of the wall, and began running
down the street, screaming for help.

Theron Hardesty, a Pierce County sheriff’s deputy,
arrived at the trailer park around 2:30 a.m. after receiving a
call regarding a potential burglary. A resident informed
Hardesty that a man armed with a sword was at large in the
trailer park. Hardesty quickly located Crace, who was
jumping up and down in the middle of the street and
screaming.

Crace saw Hardesty’s flashlight beam and, although he
could not tell who was holding the flashlight, began running
towards it, “trying to find somebody to be around” for
protection. As Crace approached, Hardesty drew his handgun
and ordered Crace to drop the sword. Crace did not comply
immediately, but when he got within about 50 feet away from
Hardesty, he realized Hardesty was a police officer and
dropped the sword.

Hardesty then ordered Crace to get down on the ground.
Crace continued to run toward Hardesty, however, because he
feared that if he were to lie down in the middle of the street,
he would be killed. Crace ran until he was about seven feet
from Hardesty, at which point he complied with Hardesty’s
orders and got down on the ground.

Hardesty put Crace in handcuffs, placed him in the back
of his patrol car, and went to interview Rita Whitten. During
the interview, Hardesty heard bystanders “screaming” in the
parking lot, and he returned to find that Crace had kicked out
the left rear window of the car. Crace was terrified at having
 CRACE V. HERZOG 7

been left alone and had kicked out the window in a desperate
attempt to get Hardesty to return. Several additional deputies
arrived soon afterwards and helped restrain Crace. Hardesty
read Crace his Miranda rights, and Crace told him that he had
been chased by “four or five” pursuers. Hardesty determined
that Crace was “obviously on some type of street drug.”

Crace was subsequently charged with first-degree
criminal trespass, second-degree malicious mischief, and
second-degree assault. The trial court ordered an evaluation
of Crace’s competency to stand trial, and two
psychologists—one employed by the state and one by the
defense—examined Crace. The court found Crace
competent, and the case proceeded to trial. Crace’s theory of
defense at trial was that he suffered from diminished capacity
on the night of August 16 due to the influence of the alcohol
and drugs he had consumed, leaving him unable to form the
intent required for any of the charged offenses.

After the close of the evidence, the trial court instructed
the jury on the three charged offenses and on attempted
second-degree assault, a lesser included offense of second-
degree assault. The jury deadlocked on the second-degree
assault charge, but it convicted Crace of attempted second-
degree assault. It also convicted on first-degree criminal
trespass and second-degree malicious mischief. The latter
two offenses are misdemeanors, but the attempted second-
degree assault conviction—a felony—counted as Crace’s
third strike under Washington’s three-strikes law. Crace
received a life sentence without the possibility of parole for
that offense.

After the Washington courts affirmed his conviction on
direct appeal, Crace filed a “personal restraint petition” with
8 CRACE V. HERZOG

the Washington Court of Appeals, alleging, among other
things, that his trial attorney was ineffective for failing to
request a jury instruction on “unlawful display of a weapon,”
which is another lesser included offense of second-degree
assault.2 A conviction for unlawful display of a weapon,
which is a misdemeanor, would not have resulted in Crace’s
receiving a third strike.

The Court of Appeals initially denied Crace’s personal
restraint petition in an unpublished opinion. Crace moved for
reconsideration, and the court, in a divided opinion, granted
that motion and subsequently issued a new decision granting
Crace’s petition. In re Crace, 236 P.3d 914 (Wash. Ct. App.
2010), rev’d, 280 P.3d 1102 (Wash. 2012). The court applied
Strickland’s test for ineffective assistance of counsel and held
that Crace had satisfied both prongs of that test. First, the
court held that Crace’s trial counsel had performed
deficiently by failing to request an instruction on unlawful
display of a weapon, given that a conviction for that offense
rather than for attempted assault would have saved Crace
from a third strike and a life sentence. Id. at 930–31.
Second, it held that Crace had shown that he was prejudiced
by his counsel’s failure because, under Washington law,
Crace would have been entitled to an instruction on the
offense of unlawful display of a weapon if his attorney had
requested it, and there was a reasonable probability that the

2
A person commits the offense of unlawful display of a weapon by
“carry[ing]” or “display[ing] . . . any firearm, dagger, sword, knife or
other . . . weapon apparently capable of producing bodily harm, in a
manner, under circumstances, and at a time and place that either manifests
an intent to intimidate another or that warrants alarm for the safety of
other persons.” Wash. Rev. Code § 9.41.270(1) (emphasis added).
 CRACE V. HERZOG 9

outcome of the trial would have been different if that
additional instruction had been given. Id. at 931–33.

The state appealed, and the Washington Supreme Court
reversed by a vote of 7–2. In re Crace, 280 P.3d at 1102.
The high court did not decide whether Crace’s attorney’s
performance was deficient because it determined that Crace
could not satisfy Strickland’s prejudice prong. The court
explained that, when reviewing a claim of ineffective
assistance of counsel, it was required to “assume that the jury
would not have convicted the defendant unless the State had
met its burden of proof” and that “the availability of a
compromise verdict [thus] would not have changed the
outcome of the trial.” Id. at 1109. The court determined that,
“in light of” these presumptions and of the fact that there was
sufficient evidence to support the jury’s verdict, it could not
“say in all reasonable probability that counsel’s error . . .
contributed to Crace’s conviction on attempted second degree
assault.” Id.

Crace next filed a habeas corpus petition in the Western
District of Washington. A magistrate judge of that court
recommended granting Crace’s petition. The magistrate
judge agreed with the Washington Court of Appeals’
conclusion that Crace’s attorney’s performance had been
deficient. Turning to the issue of prejudice, she explained
that the Washington Supreme Court’s prejudice analysis
involved an “incomplete and unreasonable application of
Strickland.” She explained that the Washington Supreme
Court had “completely avoided the [prejudice] prong of
Strickland”; rather than analyzing “what difference an
instruction on the lesser crime of unlawful display of a
weapon would have had on the outcome of” the trial, the
Washington Supreme Court had simply assumed that such an
10 CRACE V. HERZOG

instruction would have made no difference. The magistrate
judge noted that, under such an approach, “no defendant
could ever show prejudice when counsel failed to offer a
lesser included offense instruction,” as long as sufficient
evidence supported the jury’s verdict. On de novo review,
she concluded that Crace had shown that he was prejudiced
by his attorney’s failure and recommended granting relief.

In a separate opinion resting on the same reasoning, the
district court adopted the magistrate judge’s Report and
Recommendation and granted Crace’s habeas corpus petition.
This appeal followed.

II

We review the district court’s order granting a writ of
habeas corpus de novo. Merolillo v. Yates, 663 F.3d 444, 453
(9th Cir. 2011). Our review of the Washington Supreme
Court’s decision, however, is constrained by AEDPA; we
must defer to that decision unless it was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). If we determine that
“the requirements of AEDPA have been met, we must also
determine, applying a de novo review standard, [that] there
has been a constitutional violation” before we may grant
habeas corpus relief. See Butler v. Curry, 528 F.3d 624, 641
(9th Cir. 2008).

III

The “clearly established” Supreme Court law at issue in
this case is Strickland v. Washington, in which the Court held
that a claim of ineffective assistance of counsel has “two
 CRACE V. HERZOG 11

components”: First, a defendant must show that his
attorney’s performance was “deficient,” in that it “fell below
an objective standard of reasonableness.” Strickland,
466 U.S. at 687–88. Second, he must show that he was
prejudiced by his attorney’s actions or omissions, by
demonstrating that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

We analyze the question of prejudice first, since it is the
only prong of Strickland that the Washington Supreme Court
addressed.

A. AEDPA Review of the Washington Supreme Court’s
Prejudice Determination

The Washington Supreme Court’s conclusion that Crace’s
attorney’s failure to request an instruction on unlawful
display of a weapon did not prejudice Crace was based on the
court’s holding in an earlier case, State v. Grier, 246 P.3d
1260 (Wash. 2011). In Grier, a defendant convicted of
second-degree murder argued on appeal that her trial counsel
had been ineffective by failing to request a jury instruction on
the lesser included offense of manslaughter. Id. at 1266. The
court rejected this claim on the grounds that the defendant
could not show any prejudice caused by her attorney’s failure.
Id. at 1274.

The Grier court quoted Strickland for the proposition that,
when analyzing prejudice, a reviewing court “should
presume, absent challenge to the judgment on grounds of
evidentiary insufficiency, that the judge or jury acted
according to law.” Id. at 1272 (quoting Strickland, 466 U.S.
at 694). The court interpreted this language to mean that it
12 CRACE V. HERZOG

was required to presume that the defendant’s jury had
convicted her of murder because the jury found that the
elements of murder had been proved beyond a reasonable
doubt. The court then concluded that, given that
presumption, it could also assume that “the availability of a
compromise verdict would not have changed the outcome” of
the trial, id. at 1274; if the jury had thought the defendant
guilty of murder beyond a reasonable doubt, it necessarily
would have reached the same verdict even if it had been
instructed on lesser included offenses.

In Crace’s case, the Washington Supreme Court applied
both of the presumptions “recognized in Grier.” It first
presumed that Crace’s jury must have found that each of the
elements of attempted second-degree assault had been proved
beyond a reasonable doubt when it convicted him. It then
determined that the evidence was sufficient to support such
a verdict and presumed, on that basis, that an instruction on
the lesser included offense of unlawful display of a weapon
would have made no difference to the outcome of the trial;
the jury would still have convicted Crace of attempted
second-degree assault even if it had been instructed on
another lesser included offense.

The Washington Supreme Court’s methodology is a
patently unreasonable application of Strickland, and its
decision in this case is thus unworthy of deference under
AEDPA. Strickland did instruct reviewing courts to presume
that trial juries act “according to law,” but the Washington
Supreme Court (both in Grier and in this case) has read far
more into that instruction than it fairly supports and, as a
result, has sanctioned an approach to Strickland that sidesteps
the reasonable-probability analysis that Strickland’s prejudice
prong explicitly requires.
 CRACE V. HERZOG 13

In counseling reviewing courts to presume that juries act
according to law, the Strickland Court sought to prohibit
lower courts from basing findings of prejudice on the
possibility of freak acts of “lawless[ness]” by judges and
juries that are outside the ordinary course of criminal justice.
The passage immediately following the language quoted in
Grier explains this point:

An assessment of the likelihood of a result
more favorable to the defendant must exclude
the possibility of arbitrariness, whimsy,
caprice, “nullification,” and the like. A
defendant has no entitlement to the luck of a
lawless decisionmaker, even if a lawless
decision cannot be reviewed.

466 U.S. at 695. In other words, a court may not find
Strickland prejudice by concluding that a different choice of
tactics by defense counsel could have persuaded the judge or
jury to make an arbitrary and improper decision in the
defendant’s favor. Rather, “[t]he assessment of prejudice
should proceed on the assumption that the decisionmaker is
reasonably, conscientiously, and impartially applying the
standards that govern the decision.” Id.

The Washington Supreme Court’s decisions in Grier and
in this case overextended the foregoing principle. That
principle forbids a reviewing court from finding prejudice by
speculating that, if the defendant is permitted to roll the dice
again, the jury might convict on a lesser included offense
merely as a means of jury nullification, without regard for
whether that verdict is consistent with the evidence. But it
does not require a court to presume—as the Washington
Supreme Court did—that, because a jury convicted the
14 CRACE V. HERZOG

defendant of a particular offense at trial, the jury could not
have convicted the defendant on a lesser included offense
based upon evidence that was consistent with the elements of
both. To think that a jury, if presented with the option, might
have convicted on a lesser included offense is not to suggest
that the jury would have ignored its instructions. On the
contrary, it would be perfectly consistent with those
instructions for the jury to conclude that the evidence
presented was a better fit for the lesser included offense. The
Washington Supreme Court thus was wrong to assume that,
because there was sufficient evidence to support the original
verdict, the jury necessarily would have reached the same
verdict even if instructed on an additional lesser included
offense.

As the Supreme Court has recognized in a related context,
a jury presented with only two options—convicting on a
single charged offense or acquitting the defendant
altogether—“is likely to resolve its doubts in favor of
conviction” even if it has reservations about one of the
elements of the charged offense, on the thinking that “the
defendant is plainly guilty of some offense.” Keeble v.
United States, 412 U.S. 205, 212–13 (1973) (construing the
Major Crimes Act of 1885 not to preclude lesser-included-
offense instructions, in order to avoid constitutional
concerns); see also Hopper v. Evans, 456 U.S. 605, 611
(1982). It is therefore perfectly plausible that a jury that
convicted on a particular offense at trial did so despite doubts
about the proof of that offense—doubts that, with “the
availability of a third option,” could have led it to convict on
a lesser included offense. See Keeble, 412 U.S. at 213.
Making this observation does not require us to speculate that
the jury would have acted “lawless[ly]” if instructed on an
additional, lesser included offense or to question the validity
 CRACE V. HERZOG 15

of the actual verdict. Rather, it merely involves
acknowledging that the jury could “rationally” have found
conviction on a lesser included offense to be the verdict best
supported by the evidence. See id.

In Grier (and, implicitly, in this case), the Washington
Supreme Court brushed Keeble aside as “inapposite in the
context of ineffective assistance of counsel.” Grier, 246 P.3d
at 1272. In that court’s view, applying Keeble’s reasoning in
a Strickland case requires a court to posit that “the jury would
not hold the State to its burden in the absence of a lesser
included offense instruction”—the kind of jury
“lawless[ness]” that Strickland precludes a court from
considering. Id. Not so. Keeble’s logic does not rest on the
proposition that juries deliberately and improperly choose to
convict in the absence of reasonable doubt. What Keeble
teaches us is that a lesser-included-offense instruction can
affect a jury’s perception of reasonable doubt: the same
scrupulous and conscientious jury that convicts on a greater
offense when that offense is the only one available could
decide to convict on a lesser included offense if given more
choices.3

3
The dissent is thus mistaken in claiming that “there is some tension”
between Strickland and Keeble and that fairminded jurists could
reasonably “resolve[]” this tension “in favor of Strickland.” Dissenting
Op. at 31–35 (citing Harrington v. Richter, 562 U.S. 86, 103, 105 (2011)).
Properly understood, Strickland and Keeble are entirely harmonious:
Strickland requires courts to presume that juries follow the law, and
Keeble acknowledges that a jury—even one following the law to the
letter—might reach a different verdict when presented with additional
options.

Our conviction on this point is not shaken by the dissent’s observation
that sixteen state-court judges, including the eight Washington judges who
ruled against Crace at various stages below, have agreed with its view of
16 CRACE V. HERZOG

Nothing in Strickland, therefore, forbids courts from
considering the possibility that a jury would have convicted
on a lesser included offense if given the option to do so.
Indeed, just the opposite is true: in ineffective-assistance
cases involving a failure to request a lesser-included-offense
instruction, Strickland requires a reviewing court to assess
the likelihood that the defendant’s jury would have convicted
only on the lesser included offense. Cf. Keeble, 412 U.S. at
213 (“We cannot say that the availability of a third option . . .
could not have resulted in a different verdict.”). Only by
performing that assessment can a court answer the question
expressly posed by Strickland: whether there is a reasonable
probability that, if the defendant’s lawyer had performed
adequately, the outcome of the proceeding would have been
different. Strickland, 466 U.S. at 694.4

Strickland and Keeble. Id. at 36 n.8. Although we do not impugn either
the character or the abilities of those judges, their rulings do not
automatically establish that “fairminded disagreement” on this question
is possible. The assessment of whether a question admits of fairminded
disagreement among jurists is not simply a matter of counting noses; after
all, in every federal habeas corpus case, there must be at least a few state-
court judges who have decided an issue adversely to the petitioner in order
for the case to come before us. Rather, a federal habeas court must decide
whether the applicable Supreme Court law leaves the issue raised by the
petitioner open or resolves it conclusively. We hold that Strickland and
Keeble demonstrate beyond doubt that the Washington Supreme Court’s
decision was wrong and that the requirements of AEDPA have therefore
been met.
4
Nothing we have said here affects a defense attorney’s ability to make
a strategic decision to forgo a lesser-included-offense instruction in order
to force the jury into an “all-or-nothing” decision. The reasonableness of
that decision would be examined under the performance prong of
Strickland.
 CRACE V. HERZOG 17

The Washington Supreme Court in essence converted
Strickland’s prejudice inquiry into a sufficiency-of-the-
evidence question—an entirely different inquiry separately
prescribed by Jackson v. Virginia, 443 U.S. 307, 324 (1979).
This is so because, under the Washington Supreme Court’s
approach, a defendant can only show Strickland prejudice
when the evidence is insufficient to support the jury’s
verdict—a circumstance in which the defendant does not need
to rely on Strickland at all because Jackson already provides
a basis for habeas relief. See id. (a petitioner “is entitled to
habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact could
have found proof of guilt beyond a reasonable doubt”). And
conversely, if the evidence is sufficient to support the verdict,
there is categorically no Strickland error, according to the
Washington Supreme Court’s logic. By reducing the
question to sufficiency of the evidence, the Washington
Supreme Court has focused on the wrong question here—one
that has nothing to do with Strickland.

In the only other reported court of appeals decision on this
issue that we have found, the Third Circuit came to the same
conclusion that we do. Breakiron v. Horn, 642 F.3d 126 (3d
Cir. 2011). In that case, a defendant convicted of robbery
raised an ineffective-assistance-of-counsel claim based on his
attorney’s failure to request an instruction on the lesser
included offense of theft. Id. at 136. The Pennsylvania
Supreme Court rejected that claim, reasoning that no
prejudice occurred because sufficient evidence supported the
jury’s conviction on the robbery charge. Id. at 139. The
Third Circuit held that this decision was an unreasonable
application of Strickland, explaining that Strickland required
a court to “weigh all the evidence of record . . . to determine
whether there was a reasonable probability that the jury
18 CRACE V. HERZOG

would have convicted [the defendant] only of theft if it had
been given that option. Merely noting that the evidence was
sufficient to convict does not accomplish that task.” Id. at
140.

So too here. By pronouncing as a matter of law that, as
long as there is sufficient evidence to support the jury’s
verdict, no prejudice results from a defense attorney’s failure
to request a lesser-included-offense instruction, the
Washington Supreme Court has licensed Washington courts
to avoid analyzing prejudice in the way that ?Strickland
requires.5 This approach to Strickland is not merely wrong,
but “objectively unreasonable” under AEDPA.

B. De Novo Prejudice Analysis

Having determined that the Washington Supreme Court’s
decision on prejudice should receive no AEDPA deference,
we consider the issue of prejudice de novo.

We note, first, that Crace was legally entitled to a lesser-
included-offense instruction on unlawful display of a weapon.
Under Washington law, “a defendant is entitled to an
instruction on a lesser included offense if two conditions are
met. First, each of the elements of the lesser offense must be
a necessary element of the offense charged.” State v.

5
The dissent notes that the Washington court recited the proper
Strickland test before applying it. Dissent at 38–39. But the court’s
application of the law—not its recitation of the legal standard—is what we
hold to be objectively unreasonable. The dissent also argues that we
should presume the state court did not err in applying clearly established
law. Id. at 39–40. While we agree with this general proposition, a
presumption cannot save the Washington court’s patently unreasonable
application of the law here.
 CRACE V. HERZOG 19

Workman, 584 P.2d 382, 385 (Wash. 1978). Second, “the
evidence must raise an inference that only the lesser
included/inferior degree offense was committed to the
exclusion of the charged offense.” State v. Fernandez-
Medina, 6 P.3d 1150, 1154 (Wash. 2000).

Both of these requirements are satisfied here. The
Washington courts have held that every element of unlawful
display of a weapon is a necessary element of second-degree
assault. State v. Ward, 104 P.3d 670, 672 (Wash. App. 2004),
abrogated on other grounds by Grier, 246 P.3d at 1271. And
as the Washington Court of Appeals concluded, there was
evidence to “support an inference that Crace only displayed
the sword and that he had no intent to create reasonable fear
or apprehension of bodily injury,” which is the specific intent
required for assault and attempted assault.

Crace testified that, when he grabbed his sword and ran
out into the street, he had no intent to harm anyone, but
simply was “scared” and “wanted people to come out.”
Crace’s actions when Deputy Hardesty arrived on the scene
did not clearly suggest that he intended to harm or frighten
Hardesty, and Crace testified that he lacked such intent.
Crace also presented testimony by a psychologist, Dr.
Vincent Gollogly, who explained that Crace’s mental
capacity had been so impaired on the night of August 16 that
he was not “able to realize the nature of what he was doing.”
Dr. Gollogly acknowledged that some of Crace’s actions
could be described as purposeful, but he explained that
Crace’s actions were not intentional because Crace had been
in the throes of a “substance induced psychotic disorder” that
affected his perceptions and prevented him from forming
20 CRACE V. HERZOG

criminal intent.6 Hardesty’s testimony that it was “obvious[]”
that Crace was under the influence of drugs that night
provided support for Dr. Gollogly’s assessment.

Based on Dr. Gollogly’s opinion and the testimony of
Crace and Hardesty, a jury could rationally choose to convict
Crace only of unlawful display of a weapon. Indeed, that
offense appears to be tailor-made to apply to Crace’s conduct
as he and Dr. Gollogly described it. See Wash. Rev. Code
§ 9.41.270(1) (prohibiting “carry[ing] . . . any . . . sword . . .
in a manner, under circumstances, and at a time and place that
either manifests an intent to intimidate another or that
warrants alarm for the safety of other persons” (emphasis
added)).

Because both factors of the Washington test are satisfied,
the trial court would have been obligated to instruct the jury
on the lesser included offense of unlawful display of a
weapon if Crace’s counsel had requested such an instruction.
And had that instruction been given, there is a reasonable
probability that the jury would have convicted Crace only of
that offense. As we have explained, the evidence could well
have led Crace’s jury to question whether he acted with the
specific intent required for attempted second-degree
assault—the only lesser included offense of second-degree
assault on which the jury was instructed and the only felony

6
Dr. Steven Marquez, the state’s psychologist, took the opposite
position, testifying that Crace showed an ability to engage in “goal-
directed” behavior at the time of his arrest and that he believed that Crace
was a malingerer whose account of his own mental state was not
completely credible. This testimony, although in conflict with Dr.
Gollogly’s, does nothing to alter our conclusion that there is at least a
reasonable probability that the jury would have convicted Crace only of
unlawful display of a weapon.
 CRACE V. HERZOG 21

of which Crace was convicted. See Wash. Rev. Code
§§ 9A.28.020(1), 9A.36.021(1). At trial, however, the jury’s
only option short of convicting on attempted assault was to
acquit Crace outright. The fact that the jury “resolve[d] its
doubts in favor of conviction” on attempted assault, rather
than in favor of acquittal, does not imply that it was firmly
convinced of Crace’s capacity to form criminal intent. See
Keeble, 412 U.S. at 212–13.

We think it reasonably probable that, if given an
additional option, the jury would have convicted Crace only
of unlawful display of a weapon—which, unlike assault and
attempted assault, has no intent requirement.7 See Wash.
Rev. Code § 9.41.270. This probability is “sufficient to
undermine [our] confidence in the outcome” of the trial and
satisfies the prejudice prong of Strickland. 466 U.S. at 694.8

7
Contrary to the dissent’s suggestion, Dissenting Op. at 44, our
prejudice analysis does not depend in any way on the assumption that the
jury knew about the sentencing consequences of the various possible
verdicts. We refer to the sentencing consequences of the different charges
only in connection with our conclusion that Crace’s attorney—who, unlike
the jury, either knew or should have known about the implications of the
charges under Washington’s three-strikes law—performed deficiently by
failing to request an instruction on unlawful display of a weapon. See Part
IV, infra.
8
The dissent argues that Schad v. Arizona, 501 U.S. 624 (1991),
compels a contrary conclusion. Dissenting Op. at 40–44. In Schad, the
Supreme Court held that no due process violation occurred at a murder
trial where the defendant’s jury was instructed on both first- and second-
degree murder but was not instructed on the lesser included offense of
robbery. (The defendant was convicted of first-degree murder). Schad,
501 U.S. at 648. The Court explained that because the jury had been
instructed on one lesser included offense—second-degree murder—it had
not been presented with an all-or-nothing choice between conviction on
first-degree murder and acquittal. Thus, the due process rule of Beck v.
22 CRACE V. HERZOG

IV

It remains for us to decide whether Crace’s attorney’s
failure to request the lesser-included-offense instruction
constituted deficient performance under Strickland. Because
the Washington Supreme Court explicitly declined to reach
this issue, we review it de novo. See, e.g., Rompilla v. Beard,
545 U.S. 374, 390 (2005); Reynoso v. Giurbino, 462 F.3d
1099, 1109 (9th Cir. 2006). We conclude that Crace’s
attorney’s performance was clearly deficient.

We are mindful that judicial review of an attorney’s
performance under Strickland must ordinarily be “highly
deferential” and incorporate a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance which, under the circumstances, might
be considered sound trial strategy.” United States v. Span,
75 F.3d 1383, 1387 (9th Cir. 1996). A trial attorney’s failure
to request a jury instruction receives no deference, however,

Alabama, 447 U.S. 625 (1980), which requires that a jury in a capital case
be instructed on a lesser included noncapital offense that is supported by
the evidence, was inapplicable. Schad, 501 U.S. at 645–48.

We do not agree with the dissent that Schad—which simply held that,
where one lesser included offense instruction has been given, a court need
not take the drastic step of vacating a conviction under Beck—establishes
that a conviction is per se “reliable” as long as one lesser included offense
instruction was given. Moreover, even if the dissent is right that, under
Schad’s logic, Crace’s conviction is marginally more “reliable” because
a lesser included instruction on attempted assault was given at his trial,
Dissenting Op. at 42, there remains a reasonable probability that Crace’s
jury would have convicted him only of unlawful display of a weapon if
instructed on that offense. That probability establishes that Crace was
prejudiced by his attorney’s failure to request such an instruction. See
Strickland, 466 U.S. at 694.
 CRACE V. HERZOG 23

when it is based on “a misunderstanding of the law” rather
than “a strategic decision to for[]go one defense in favor of
another.” See id. at 1390; accord Richards v. Quarterman,
566 F.3d 553, 569 (5th Cir. 2009) (finding ineffective
assistance of counsel based on failure to request lesser-
included-offense instruction, where such failure was
“deficient and not a strategic decision”); United States v.
Alferahin, 433 F.3d 1148, 1161 (9th Cir. 2006) (holding that
trial counsel was deficient, where he “did not intend
strategically to for[]go [a] materiality instruction” but rather
“had no idea that such an instruction was available to his
client as a matter of right”); United States ex rel. Barnard v.
Lane, 819 F.2d 798, 805 (7th Cir. 1987) (holding that failure
to request an instruction on a lesser included offense
constituted deficient performance, where such failure was not
within the “spectrum of counsel’s legitimate tactical
choices”).

Crace’s attorney’s failure to request the instruction was
neither strategic nor deliberate. In a declaration submitted to
the Washington Supreme Court, he explicitly stated that the
“only reason [he] did not offer a lesser included instruction
for unlawful display of a weapon was because [he] did not
consider it.” The Washington Supreme Court did not
consider this declaration because it did not reach the
performance prong of Strickland, but the declaration is
properly before us and the state has made no attempt to
dispute its assertions. We therefore conclude that Crace’s
counsel made no strategic decision to forgo a lesser included
offense instruction that commands our deference, and we
hold that his outright failure even to consider the possibility
of requesting a lesser included offense constituted deficient
performance.
24 CRACE V. HERZOG

Indeed, we would find that Crace’s attorney’s actions
were manifestly unreasonable even if we thought that he had
consciously chosen not to request the instruction. In certain
circumstances, it may be reasonable for a defense attorney to
opt for an “all-or-nothing” strategy, forcing the jury to choose
between convicting on a severe offense and acquitting the
defendant altogether. But once the trial court decided to
instruct the jury on one lesser included offense—i.e.,
attempted second-degree assault—there was no longer any
conceivable reason for Crace’s counsel not to request an
instruction on a second lesser included offense. An all-or-
nothing strategy was also clearly inappropriate in this case,
given that a conviction only for unlawful display of a weapon
would have spared Crace a third strike and thus decades of
prison time.

We conclude that Crace’s attorney’s performance “fell
below an objective standard of reasonableness.” Strickland,
466 U.S. at 687–88. Because Crace has satisfied both prongs
of Strickland, his conviction for attempted second-degree
assault cannot stand.

V

We hold that the Washington Supreme Court’s
application of Strickland was objectively unreasonable, which
removes its decision from the protection of AEDPA. We also
conclude, on de novo review, that Crace’s claim of ineffective
assistance of counsel merits habeas corpus relief. We
therefore affirm the judgment of the district court.

AFFIRMED.
 CRACE V. HERZOG 25

CALLAHAN, Circuit Judge, dissenting:

The Washington Supreme Court had to decide what
effect, if any, defense counsel’s failure to request a jury
instruction on a lesser included offense had on Crace’s
conviction for attempted assault. The Washington Supreme
Court held that because sufficient evidence supported Crace’s
conviction for attempted assault, the presence of a second
lesser included offense instruction would not have changed
the outcome of his trial. My review of the applicable
Supreme Court law and the conflicting decisions by other
courts on this issue compels me to conclude that the
Washington Supreme Court’s decision was not contrary to or
an unreasonable application of clearly established Supreme
Court law. See 28 U.S.C. § 2254(d)(1). Therefore, as
AEDPA compels us to defer to the state court, I respectfully
dissent.

I

Robert Crace is a persistent offender in Washington. His
rap sheet discloses a burglary in 1981, robbery in 1981, two
counts of robbery in 1988, robbery in 1991, burglary and
possession of stolen property in 1995, burglary in 1999, and
attempting to elude a police officer in 2002. The robberies in
1988 and 1991 were violent crimes that constituted “strikes”
under Washington’s three strikes law.

It is against this backdrop that we consider the largely
undisputed facts in this instant case: Crace was arrested again
in 2003 after he consumed several legal and illegal drugs and
ran toward a police officer with a drawn sword. He was
charged with second degree assault, first degree criminal
trespass, and second degree malicious mischief. At trial, the
26 CRACE V. HERZOG

jury was instructed on assault with a deadly weapon and its
lesser included offense, attempted assault with a deadly
weapon. That instruction read:

If you are not satisfied beyond a
reasonable doubt that the defendant is guilty
of Assault in the Second Degree, the
defendant may be found guilty of any lesser
crime, the commission of which is necessarily
included in the crime charged, if the evidence
is sufficient to establish the defendant’s guilt
of such lesser crime beyond a reasonable
doubt.

The crime of Assault in the Second
Degree necessarily includes the lesser crime
of Attempted Assault in the Second Degree.

When a crime has been proven against a
person and there exists a reasonable doubt as
to which of two or more crimes that person is
guilty, he or she shall be convicted only of the
lowest crime.

The jury was also instructed as to first degree criminal
trespass and second degree malicious mischief. The jury
deadlocked on assault but convicted Crace of attempted
assault with a deadly weapon. The jury also convicted Crace
of first degree criminal trespass and second degree malicious
mischief.

Trespass and malicious mischief are not felonies under
Washington state law, but assault and attempted assault are.
Thus, Crace’s conviction for attempted assault resulted in a
 CRACE V. HERZOG 27

third strike, and Crace was sentenced to life without the
possibility of parole under Washington’s three strikes law.1
Crace filed a direct appeal, which was unsuccessful.2

Crace then filed a personal restraint petition in
Washington State Court, asserting, among other things, that
his counsel was ineffective for failing to request a second
lesser included offense instruction for unlawful display of a
weapon. See Wash. Rev. Code § 9.41.270. A conviction of
unlawful display of a weapon would have been a gross
misdemeanor and would not have constituted Crace’s third
strike. Id. In an unpublished decision dated January 20,
2010, the Washington Court of Appeals denied Crace’s
petition, reasoning that the evidence did not support a lesser
included offense instruction. In re Crace, 154 Wash. App.
1016 (2010) (unpublished). However, on July 28, 2010, the

1
In November 1993, Washington state voters approved Initiative 593,
commonly referred to as the “three strikes law.” The law requires trial
courts to sentence “persistent offenders” to life imprisonment without
possibility of parole. A “persistent offender” is defined as one convicted
of three felonies considered a “most serious offense” under the Revised
Code of Washington § 9.94A.570. Despite vigorous debate about the
wisdom of three strikes laws, the law has been upheld against
constitutional challenge. See, e.g., State v. Manussier, 921 P.2d 473
(Wash. 1996) (en banc) (holding three strikes law is constitutional), cert.
denied, 520 U.S. 1201 (1997); State v. Thorne, 921 P.2d 514 (Wash.
1996); and State v. Rivers, 921 P.2d 495 (Wash. 1996).
2
On direct appeal, Crace challenged the sufficiency of the evidence of
his attempted assault conviction. The Washington Court of Appeal upheld
his conviction, reasoning that a jury could reasonably conclude that Crace
intended to hurt the officer or to instill fear of harm in him. State v.
Crace, 128 Wash. App. 1021 (2005) (unpublished). The court also noted
that he had waived objections to the second and third definitions of
assault. Id. at *6. Crace has not challenged these rulings in his habeas
petitions.
28 CRACE V. HERZOG

Court of Appeals reversed itself, holding that Crace’s counsel
was deficient for failing to request an instruction for the
lesser included offense of unlawful display of a weapon and
that Crace was prejudiced by his counsel’s failure. In re
Crace, 236 P.3d 914, 932–33 (Wash. Ct. App. 2010). One
judge dissented.

The Washington Supreme Court en banc reversed the
Court of Appeals in another divided opinion. The court
assumed, without holding, that the failure of Crace’s counsel
to request a lesser included offense instruction for unlawful
display of a weapon was deficient, but held that Crace could
not have been prejudiced. Because there was sufficient
evidence to convict Crace of the greater offense, attempted
assault, there was no reasonable probability that the outcome
would have been different had the lesser included offense
instruction had been given. Two judges dissented. In re
Crace, 280 P.3d 1102, 1110 (Wash. 2012).

Crace then filed this habeas petition in federal district
court. The district court granted relief, and the State3 timely
appealed.

II

The majority errs by failing to defer to the Washington
Supreme Court’s decision under AEDPA. Title 28 U.S.C.
§ 2254(d)(1) prohibits a court from granting an application
for a writ of habeas corpus unless the state court’s
“adjudication of the claim resulted in a decision that was
contrary to, or involved an unreasonable application of,

3
Respondent-Appellant is Robert Herzog, the Superintendent of the
Monroe Correctional Complex in Monroe, Washington.
 CRACE V. HERZOG 29

clearly established Federal law, as determined by the
Supreme Court of the United States.” The clearly established
law in this case includes Strickland v. Washington, 466 U.S.
668 (1984), which sets forth the standard governing
ineffective assistance of counsel claims in habeas
proceedings. Under Strickland, a claim of ineffective
assistance of counsel has two components. First, a defendant
must show that his attorney’s performance was “deficient,”
in that it “fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687–88. Second, he must show that
he was prejudiced by his attorney’s actions or omissions, by
demonstrating that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

Here, the Washington Supreme Court considered the
second prong of Strickland: whether Crace’s counsel’s failure
to request a jury instruction for a lesser included offense was
prejudicial such that a “reasonable probability” existed that,
if the instruction had been given, the result of the proceeding
would have been different.

Notably, the question presented to the Washington
Supreme Court differs from ineffective of assistance of
counsel claims in which habeas petitioners allege that they
have been prejudiced by their counsels’ failure to present
certain evidence. In those instances, the relevant question is
how the factual findings would have been affected if defense
counsel had introduced the additional evidence, considering
the “totality of the evidence before the judge or jury.”
Strickland, 466 U.S. 695–96. But Crace’s petition has
nothing to do with the evidence presented in his case. He
does not allege that he would have introduced any other
evidence to support his innocence. He does not allege that
30 CRACE V. HERZOG

the evidence was insufficient to support his conviction of
attempted assault. Nor does he contend that the jury was
erroneously instructed as to the law. Rather, he contends that
the jury should have been provided additional law: his
counsel failed to request a jury instruction on unlawful
display of a weapon, a lesser included offense.4 In this
context, the Washington Supreme Court found there was no
reasonable probability that the outcome would have been
different had the lesser included offense instruction been
given.

We, in turn, must determine, through the lens of AEDPA,
whether the Washington Supreme Court’s decision was
contrary to or an unreasonable application of Strickland. The
majority does not hold that the state court decision was
contrary to Strickland. Rather, the majority holds that the
Washington Supreme Court’s decision was an unreasonable
application of Strickland. Maj. Op. 4–5. Even if this were a
close issue, Supreme Court authority compels us to defer to
the state court decision. Davis v. Ayala, 135 S. Ct. 2187,
2198 (2015) (citing Harrington v. Richter, 562 U.S. 86, 101
(2011)). When evaluating a state court’s application of
federal law, the Supreme Court instructs:

Under § 2254(d), a habeas court must
determine what arguments or theories
supported or [] could have supported, the state
court’s decision; and then it must ask whether
it is possible fairminded jurists could disagree
that those arguments or theories are

4
As discussed in Part III, a jury instruction for unlawful display of a
weapon would have been Crace’s second jury instruction on a lesser
included offense, as the jury was already instructed on attempted assault.
 CRACE V. HERZOG 31

inconsistent with the holding in a prior
decision of this Court.

Harrington, 562 U.S. at 102; id. at 103 (“[T]he state court’s
ruling on the claim . . . [must be] so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.”).

The Washington Supreme Court’s decision is not
objectively unreasonable. As the majority notes, the
Washington Supreme Court relied on its previous decision in
State v. Grier, 246 P.3d 1206 (Wash. 2011) (en banc), cert.
denied, 135 S. Ct. 153 (2014). Grier interpreted Strickland
as providing that when analyzing prejudice a reviewing court
“should presume, absent challenge to the judgment on
grounds of evidentiary insufficiency, that the judge or jury
acted according to law.” Id. at 1272 (quoting Strickland,
466 U.S. at 694). In other words, Grier held that because the
jury had returned a guilty verdict, the court was required to
presume the jury had found each of the elements of second
degree murder had been proven beyond a reasonable doubt.
Id. at 1273.

Grier noted that Strickland’s holding that jurors are
presumed to follow the law is in tension with Keeble v.
United States, 412 U.S. 205 (1973), which recognized that
jurors may disregard the law. Grier, 246 P.3d at 1272–73.
At issue in Keeble was whether an Indian prosecuted under
the Major Crimes Act was entitled to a jury instruction on a
lesser included offense when that lesser offense was not one
of the crimes enumerated in the Act. 412 U.S. at 205–06.
The government argued that the Act prohibited inclusion of
a lesser included offense instruction and also suggested that
32 CRACE V. HERZOG

the defendant could actually benefit from the exclusion of a
lesser included offense instruction, as the omission might
result in acquittal. Id. at 209, 212–13. The Court, however,
held that the defendant was entitled to the lesser included
offense notwithstanding its omission in the Act noting:

True, if the prosecution has not established
beyond a reasonable doubt every element of
the offense charged, and if no lesser offense
instruction is offered, the jury must, as a
theoretical matter, return a verdict of
acquittal. But a defendant is entitled to a
lesser offense instruction—in this context or
any other—precisely because he should not be
exposed to the substantial risk that the jury’s
practice will diverge from theory. Where one
of the elements of the offense charged
remains in doubt, but the defendant is plainly
guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction. In
the case before us, for example, an intent to
commit serious bodily injury is a necessary
element of the crime with which petitioner
was charged, but not of the crime of simple
assault. Since the nature of petitioner’s intent
was very much in dispute at trial, the jury
could rationally have convicted him of simple
assault if that option had been presented. But
the jury was presented with only two options:
convicting the defendant of assault with intent
to commit great bodily injury, or acquitting
him outright. We cannot say that the
availability of a third option—convicting the
 CRACE V. HERZOG 33

defendant of simple assault—could not have
resulted in a different verdict.

Id. at 212–13.

Thus, the Washington Supreme Court could reasonably
find some tension in the Supreme Court guidance. Strickland
holds that a court is to assume that the jury follows the law
and, therefore, that juries only convict defendants if they find
all elements of a crime beyond a reasonable doubt, while
Keeble instructs that a defendant should not be exposed to the
substantial risk that a “jury’s practice will diverge from
theory” and “resolve its doubts in favor of conviction” where
the only other option is acquittal. Keeble, 412 U.S. at
212–13.

Grier resolved the tension between Strickland and Keeble
in favor of Strickland, the more recent Supreme Court
opinion. The Washington Supreme Court held that “Keeble
is inapposite in the context of ineffective assistance of
counsel” and “skews the Strickland standard” that presumes
jurors follow the law. Grier, 246 P.3d at 1273. The court
explained that the proposed instruction would have directed
the jury not to consider a lesser included offense if it was
convinced that the defendant was guilty of the greater
offense. Id. at 1272–73. Thus, because the jury returned a
guilty verdict on the greater offense of second degree murder,
a proposed instruction on manslaughter would not have
changed the result: Grier was not prejudiced. Id. at 1272–74.
Applying Grier’s holding here, the Washington Supreme
Court held that Crace had failed to demonstrate any prejudice
from his counsel’s failure to request a second lesser included
instruction on unlawful display of a weapon in light of his
34 CRACE V. HERZOG

conviction of the greater offense, attempted assault. In re
Crace, 280 P.3d at 1109.5

Similar positions have been espoused by the Supreme
Court of Florida in Sanders v. State, 946 So. 2d 953 (Fla.
2006), reh’g denied, and by Judge Wilson of the Supreme
Court of Missouri, albeit in a dissenting opinion, in McNeal
v. State, 412 S.W.3d 886 (Mo. 2013) (en banc), cert. denied
134 S. Ct. 2292 (May 19, 2014).6 In Sanders, the Florida
Supreme Court explained that “any finding of prejudice

5
Strickland informs us that if the petitioner challenges the sufficiency
of the evidence, then jurors are no longer presumed to follow the law.
466 U.S. at 694. Although Crace challenged the sufficiency of evidence
on direct appeal, he did not renew that argument in his habeas petitions.
Additionally, no direct evidence suggests that the jury did not follow the
law here.
6
Judge Wilson ably explained in his dissent in McNeal:

Because McNeal’s jury found him guilty of burglary
. . . there are only two ways to conclude that this lesser-
included offense instruction likely would have changed
the outcome . . . . They are: (1) that the jury did not
believe the evidence was sufficient to prove McNeal
guilty of burglary beyond a reasonable doubt but,
because it was placed in an all-or-nothing position by
the absence of the trespass instruction, the jury
improperly convicted McNeal despite its oath and the
court's instructions, or (2) that the jury did believe the
evidence was sufficient to prove McNeal guilty of
burglary beyond a reasonable doubt but, if it had been
given the lesser-included offense instruction, the jury
would have improperly ignored the evidence (as well as
its oath) and convicted McNeal of the lesser offense as
an act of leniency, grace, or other form of nullification.

McNeal, 412 S.W.3d at 895 (Wilson, J. dissenting).
 CRACE V. HERZOG 35

resulting from defense counsel’s failure to request an
instruction on lesser-included offenses necessarily would be
based on a faulty premise” that, “if given the choice, a jury
would violate its oath, disregard the law, and ignore the trial
court’s instructions.” Sanders, 946 So. 2d at 959. Because
Strickland prohibits this type of speculation, the court held
that the defendant was not prejudiced by a refusal to give an
instruction of a lesser included offense.7

Our case presents a similar situation. Crace’s jury found
him guilty of attempted assault. The only way a lesser
included instruction for unlawful display of a weapon could
have changed the outcome is if the jury improperly convicted
him of attempted assault or if the jury would have convicted
him of unlawful display of a weapon as an act of “leniency,
grace, or other form of nullification.” See McNeal,
412 S.W.3d at 895 (Wilson, J., dissenting).

The majority and the Third Circuit disagree with the
approach taken by the Washington Supreme Court, the
Florida Supreme Court, and Judge Wilson in Missouri. See
Maj. Op. and Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011).
But this only illustrates that fairminded jurists disagree on
whether counsel’s failure to request a lesser included offense
instruction prejudices the defendant. Therefore, the majority
has not shown that the Washington Supreme Court’s ruling
“‘was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Davis, 135 S. Ct.

7
The Eleventh Circuit, in an unpublished decision, has held that the
Florida Supreme Court’s reasoning in Sanders was not an unreasonable
application of Strickland. Santiago v. Sec’y, Fla. Dept. of Corr., 472 F.
App’x 888, 889 (11th Cir. 2012).
36 CRACE V. HERZOG

at 2199 (quoting Harrington, 562 U.S. at 103). Far from it:
fairminded jurists can and do disagree as to whether the
failure to request an instruction on a lesser included offense
can be prejudicial when the jury convicts on the greater
offense and there is no question as to the sufficiency of the
evidence.8 As the Supreme Court has not reconciled the
statements in Strickland and Keeble, it is not objectively
unreasonable for the Washington Supreme Court to read
Strickland as limiting Keeble.9 See Harrington, 562 U.S. at

8
A preliminary count reveals that judges who have considered this
issue—whether the failure to request an instruction on a lesser included
offense can be prejudicial when the jury convicts on the greater
offense—are equally divided. At least 16 judges would find that the
petitioner has not shown a reasonable probability that but for counsel’s
failure to request a lesser included offense instruction, the outcome of the
proceeding would have been different. See discussion infra; In re Crace,
280 P.3d at 1109–10 (seven judges in the majority); In re Crace, 236 P.3d
at 933 (one judge dissenting); Sanders, 847 So. 2d at 960 (five justices
concurring in opinion); McNeal, 412 S.W.3d at 893 (two judges
dissenting). But at least 16 others judges would. See Maj. Op.; Crace v.
Herzog, No. C12-5672 RBL/KLS, 2013 WL 3338498 (W.D. Wash. July
2, 2013) (district judge adopting magistrate judge’s recommendation of
grant of habeas relief); In re Crace, 280 P.3d. at 1110 (two Washington
Supreme Court justices dissenting); In re Crace, 236 P.3d at 933 (two
Washington appellate judges in majority); Breakiron, 642 F.3d at 128
(three circuit judges); McNeal, 412 S.W. 3d at 893 (five judges in
majority). Although not dispositive, the fact that so many other
conscientious jurists have reached the same conclusion as the Washington
Supreme Court certainly bears some relevance as to whether the state
court’s reasoning was “so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington, 562 U.S. at 103.
9
A somewhat similar, and hence instructive, situation confronted the
Supreme Court in Lockyer v. Andrade, 538 U.S. 63 (2003), in which the
Court held that it had not established a “clear or consistent path for courts
to follow” in determining “whether a particular sentence for a term of
 CRACE V. HERZOG 37

105 (“The Strickland standard is a general one, so the range
of reasonable applications is substantial.”).

The majority nonetheless suggests that the Washington
Supreme Court’s decision was unreasonable because it
converted Strickland’s prejudice inquiry into a sufficiency-of-
the-evidence question prescribed by Jackson v. Virginia, 443
U.S. 307 (1979). Maj. Op. 17. The majority’s conclusion is
based on the following text in the state court’s opinion:

Assuming without deciding that counsel was
deficient, consistent with Grier, we cannot say
in all reasonable probability that counsel’s
error—failure to seek the lesser included
offense—contributed to Crace’s conviction on
attempted second degree assault. There was
sufficient evidence from which a juror could
conclude Crace committed this offense.
Evidence established he intended to cause
Deputy Hardesty fear and apprehension. RP
at 143–45 (cross-examination of Crace
suggesting that he rushed the deputy thinking
Hardesty might be an assailant); RP at 208–17
(testimony from State’s psychologist
suggesting Crace was not only capable of
forming intent, but was also malingering,
which might have undermined his credibility
with the jury). Indeed, if failing to request the

years can violate the Eighth Amendment.” Id. at 72. Because the precise
contours of the Eighth Amendment’s disproportionality principle were
unclear, it was not objectively unreasonable for the California Court of
Appeals to conclude that a three strikes sentence of 50 years to life for
petty theft was not grossly disproportionate. Id. at 70, 75–77.
38 CRACE V. HERZOG

lesser-included instruction was deficient
performance, it occurred during an otherwise
strategic and tactically driven presentation by
counsel. In light of the presumptions we
recognized in Grier, it would be difficult to
show prejudice in such a context, and Crace
has failed to do so here.

In re Crace, 280 P.3d at 1109.

There is no dispute that the Washington court recited the
correct Strickland standard at length in the preceding sections
of the opinion. See, e.g., id. at 1106 (“Strickland arrived at a
measure of prejudice that requires the defendant to show a
‘reasonable probability’ that but for counsel’s deficient
representation, the outcome of the proceeding would have
been different.”); id. at 1107 (“Strickland’s test is ultimately
concerned with ‘the fundamental fairness of the proceeding
whose result is being challenged.’” (quoting Strickland,
466 U.S. at 696)); id. (“‘In every case the court should be
concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our
system counts on to produce just results.’” (quoting
Strickland, 466 U.S. at 696)).

In its application of Strickland, the Washington Supreme
Court considered the sufficiency of the evidence against
Crace for attempted assault and concluded it was presumptive
evidence that Crace could not show a reasonable probability
of a different outcome if the jury had been instructed on the
lesser included offense of unlawful display of a weapon. The
court’s review of the sufficiency of the evidence supporting
Crace’s conviction is not inconsistent with Strickland; to the
 CRACE V. HERZOG 39

contrary, the court would have been remiss if it did not
evaluate the sufficiency of the evidence supporting the
verdict. See Strickland, 466 U.S. at 695–96 (“[A] court
hearing an ineffectiveness claim must consider the totality of
the evidence before the judge or jury. . . . [A] verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support.”). Thus, the Washington
court’s consideration of the sufficiency of the evidence is not
enough to overcome the presumption that the court knew and
followed the applicable clearly established law. See
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(holding that a “readiness to attribute error is inconsistent
with the presumption that state courts know and follow the
law”); see also Woods v. Donald, 135 S. Ct. 1372, 1376
(2015) (per curiam); Poyson v. Ryan, 743 F.3d 1185, 1198–99
(9th Cir. 2013), cert. denied, 134 S. Ct. 2302 (2014).; Lopez
v. Schriro, 491 F.3d 1029, 1037 (9th Cir. 2007), cert denied,
128 S. Ct. 1227 (2008). Accordingly, I would hold the
court’s decision was a reasonable application of Strickland.10

10
The majority’s concern that the Washington Supreme Court created
a categorical rule such that no prejudice can ever be found for failing to
request a lesser included offense instruction if there is sufficient evidence
of the greater offense is overstated. See Maj. Op. 18. First, the court’s
language disclaims a categorical rule: “in light of the presumptions we
recognized in Grier, it would be difficult to show prejudice in such a
context, and Crace has failed to do so here.” In re Crace, 280 P.3d at
1109 (emphasis added). Second, even if the Washington Supreme Court
was creating a categorical rule, such a rule may be sound in these limited
circumstances in which the only error Crace asserts is that his counsel did
not request a jury instruction on a second lesser included offense when the
jury was already instructed as to one lesser included offense. See also
infra Part III.
40 CRACE V. HERZOG

As Supreme Court authority compels deference to the
decision of the Washington Supreme Court, I would reverse
the district court’s grant of habeas relief.11

III

The reasonableness of the Washington Supreme Court’s
perspective is buttressed by the fact that the jury was
presented with one lesser included offense instruction. This
enhances the verdict’s reliability and compels the conclusion
that the Washington Supreme Court decision was not
unreasonable. See Beck v. Alabama, 447 U.S. 625, 636
(1980); Schad v. Arizona, 501 U.S. 624, 645–47 (1991). Beck
concerned an Alabama statute that precluded giving the jury
any lesser included offense instructions in capital cases. Id.
at 628–29, n.3. The Court invalidated the statute, holding that
due process entitles a defendant to a lesser included offense
instruction in a capital case to protect against the risk of an
unwarranted conviction. Id. at 637 (“Such a risk cannot be
tolerated in a case in which the defendant’s life is at stake.”).

The Court subsequently limited Beck’s reach in Schad,
holding that, even in a capital case, a defendant is not entitled
to every lesser included offense jury instruction supported by
the evidence. 501 U.S. at 645–47. In Schad, the habeas

11
To be sure, some of my colleagues disagree with the Court’s
interpretation of AEDPA. See, e.g., Stephen R. Reinhardt, The Demise of
Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever
Increasing Limitations on the Development and Enforcement of
Constitutional Rights and Some Particularly Unfortunate Consequences,
113 Mich. L. Rev. 1219 (2015). But even those colleagues concede that
we are “bound to follow [the Court’s] rulings . . . because the system of
law that we so admire and respect contains a hierarchy in which the
Supreme Court rests at the top.” Id. at 1254.
 CRACE V. HERZOG 41

petitioner was charged with and convicted of first degree
murder and was sentenced to death. Id. at 629. Although the
jury was instructed on a lesser included offense of second
degree murder, the petitioner argued that he was entitled to a
jury instruction for a second lesser included offense, robbery.
Id. at 629, 645. The Court rejected this argument, explaining
that the defendant was not faced with an “all-or-nothing”
situation where the jury had to convict him of a capital crime
or acquit him.

The goal of the Beck rule, in other words, is to
eliminate the distortion of the factfinding
process that is created when the jury is forced
into an all-or-nothing choice between capital
murder and innocence. This central concern
of Beck simply is not implicated in the present
case, for petitioner’s jury was not faced with
an all-or-nothing choice between the offense
of conviction (capital murder) and innocence.

Id. at 646–47 (internal citations and quotation marks
omitted). Schad’s theory of defense at trial was that he
merely stole the victim’s property but did not murder him.
He complained that refusing a lesser included instruction for
robbery or theft deprived the jurors of the “opportunity to
return a verdict in conformity with their reasonable view of
the evidence.” Id. at 647. The Court rejected this argument:

[T]he fact that the jury’s “third option” was
second-degree murder rather than robbery
does not diminish the reliability of the jury’s
capital murder verdict. To accept the
contention advanced by petitioner and the
dissent, we would have to assume that a jury
42 CRACE V. HERZOG

unconvinced that petitioner was guilty of
either capital or second-degree murder, but
loath to acquit him completely (because it was
convinced he was guilty of robbery), might
choose capital murder rather than
second-degree murder as its means of keeping
him off the streets. Because we can see no
basis to assume such irrationality, we are
satisfied that the second-degree murder
instruction in this case sufficed to ensure the
verdict’s reliability.

Id. Thus, following Schad, once one lesser included offense
instruction is given, the risk of a compromise verdict is
diminished. See Murtishaw v. Woodford, 255 F.3d 926, 955
(9th Cir. 2001) (“Beck does not require trial courts to provide
sua sponte instructions on each theory that could justify a
lesser included offense. Rather, it merely requires courts to
provide instructions on the lesser included offenses, thus
preventing the State from forcing juries to make an ‘all or
nothing’ choice between acquittal and capital murder.”); cf.
People v. Horning, 102 P.3d 228, 252 (Cal. 2004) (“‘Beck’s
principles [are] satisfied if the jury [i]s provided some
noncapital third option between the capital charge and
acquittal.’”) (quoting People v. Sakarias, 995 P.2d 152 (Cal.
2000)).

Keeble, Beck, and Schad support the conclusion that
Crace’s conviction for attempted assault was not a
compromise verdict. Crace’s jury was not presented with an
“all-or-nothing choice” between conviction and innocence.
Rather, Crace’s jury was instructed on a number of potential
verdicts, including the greater offense of assault and the
lesser included offense of attempted assault, as well as
 CRACE V. HERZOG 43

malicious mischief and trespass. The jury’s mixed verdict,
acquitting Crace of assault, but finding him guilty of
attempted assault, mischief, and trespass suggests that it had
no misgivings about acquitting Crace when it deemed
appropriate to do so.12

Moreover, Crace’s counsel’s failure to request a second
lesser included offense instruction for unlawful display of a
weapon was not prejudicial because the jury was not
presented with the all-or-nothing choice contemplated in
Keeble and Beck. As the Supreme Court held in Schad,
where a jury has been instructed on both a greater and lesser
included offense, the conviction is reliable. 501 U.S. at
647–48.13 Reliability is the touchstone of Strickland’s
prejudice analysis. Williams v. Taylor, 529 U.S. 362, 393 n.
17 (2000) (Strickland’s prejudice component “focuses on the
question [of] whether counsel’s deficient performance renders
the result of the trial unreliable or the proceeding
fundamentally unfair”); cf. Kyles v. Whitley, 514 U.S. 419,
434 (1995) (“The question is not whether the defendant
would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a

12
Indeed, the jury’s inability to reach a verdict on assault may be the
result of the jury rejecting Crace’s defense that he lacked the requisite
intent required for both assault and attempted assault, and instead
determining that the government had not shown the required actus reus for
assault.
13
The majority dismisses Schad as a due process case that did not
squarely address ineffective assistance of counsel, but neither did Keeble.
In any event, the point is that Schad and Keeble shed light on the question
of whether the absence of a second lesser included offense instruction
renders Crace’s verdict unreliable. While the majority concludes to the
contrary, I would defer to the Washington Supreme Court’s reconciliation
of Keeble and Strickland in light of Beck and Schad.
44 CRACE V. HERZOG

fair trial, understood as a trial resulting in a verdict worthy of
confidence.”). Thus, there is no basis under Strickland to
conclude that if Crace’s counsel had requested another lesser
included offense instruction, the jury would have returned a
different verdict.

Even if I could agree that defense counsel’s failure to
request a jury instruction for one lesser included offense
created a reasonable probability that the outcome could be
different, I cannot agree with the majority that defense
counsel’s failure to request a second lesser included offense
instruction created a reasonable probability that the outcome
would have been different. Taken to its logical conclusion,
defense counsel would be obligated to request all potentially
relevant lesser included offense instructions to avoid a
compromise verdict. Therefore, I would hold that Crace has
not shown that the Washington Supreme Court decision was
unreasonable.

IV

The majority’s reluctance to accept that counsel’s failure
to request an instruction on the lesser included offense of
unlawful display of a weapon may reasonably be considered
harmless may stem from the stark fact that attempted assault
is a felony while unlawful display of a weapon is a
misdemeanor and, thus, not a “strike” under Washington’s
three strikes law. But the jury did not know the sentencing
consequences of its verdict on the various charges. Nor is
there any suggestion that if the jury had been provided with
an instruction for the lesser included offense of unlawful
display of a weapon that the jurors would have understood
 CRACE V. HERZOG 45

that charge to be a misdemeanor.14 Washington law prohibits
a jury from considering matters related to sentencing in non-
capital cases. See State v. Hicks, 181 P.3d 831, 836 (Wash.
2008) (en banc) (“[W]here the jury has no sentencing
function, it should not be informed on matters that relate only
to sentencing.”); see also Shannon v. United States, 512 U.S.
573, 579 (1994) (“[P]roviding jurors sentencing information
invites them to ponder matters that are not within their
province, distracts them from their factfinding
responsibilities, and creates a strong possibility of
confusion.”). In accordance with these principles, Crace’s
jury was instructed:

You have nothing whatever to do with any
punishment that might be imposed in case of
a violation of the law. The fact that
punishment may follow conviction cannot be
considered by you except insofar as it may
tend to make you careful.

You are officers of the court and must act
impartially and with an earnest desire to
determine and declare the proper verdict.
Throughout your deliberations you will permit
neither sympathy nor prejudice to influence
your verdict.15

14
Apparently one juror on Crace’s jury wrote an article in a local
newspaper about the experience, and said that she “came to consider the
possibility that Mr. Crace was facing a third strike” because she “had read
about the law and understood the process.” She, however, “did not
discuss [her third strike theory] with anyone else.” In re Crace, 236 P.3d
at 922.
15
There is no indication that Crace objected to this instruction.
46 CRACE V. HERZOG

Thus, the fact that Crace’s conviction for attempted assault
was a felony that triggered Washington’s three strikes law
neither undermines the jury’s verdict nor provides any
support for the argument that the verdict would have been
different if the jury was been instructed on another lesser
included offense that was a misdemeanor.

* * *

The wisdom of Washington’s three strikes law is not
before us, nor are we called upon to determine the correctness
of the Washington Supreme Court’s interpretation of
Strickland and Keeble. Rather, pursuant to AEDPA, we are
limited to inquiring whether the Washington Supreme Court’s
decision is unreasonable. Davis, 2015 WL 2473373, at *9.
I would find the Washington court’s interpretation of U.S.
Supreme Court opinions neither contrary to nor an
unreasonable application of clearly established law.
Fairminded jurists may conclude that the jury’s conviction of
Crace on the lesser included offense of attempted assault on
sufficient evidence renders his counsel’s failure to seek an
instruction on another lesser included offense harmless.

Accordingly, I respectfully dissent.