Filed: Jan. 31, 2020
Latest Update: Mar. 03, 2020
Summary: FILED JAN 31 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KENNETH KON, No. 18-55401 Petitioner-Appellant, D.C. No. 8:16-cv-00397-SVW-SK v. STUART SHERMAN, Warden, ORDER Respondent-Appellee. Before: BERZON and WATFORD, Circuit Judges, and WHALEY,* District Judge. Respondent’s Petition for Panel Rehearing, Docket Entry No. 41, is DENIED. The Memorandum Disposition filed December 13, 2019, Docket Entry No. 35, is WITHDRAWN and REPLACED by a n
Summary: FILED JAN 31 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KENNETH KON, No. 18-55401 Petitioner-Appellant, D.C. No. 8:16-cv-00397-SVW-SK v. STUART SHERMAN, Warden, ORDER Respondent-Appellee. Before: BERZON and WATFORD, Circuit Judges, and WHALEY,* District Judge. Respondent’s Petition for Panel Rehearing, Docket Entry No. 41, is DENIED. The Memorandum Disposition filed December 13, 2019, Docket Entry No. 35, is WITHDRAWN and REPLACED by a ne..
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FILED
JAN 31 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH KON, No. 18-55401
Petitioner-Appellant, D.C. No.
8:16-cv-00397-SVW-SK
v.
STUART SHERMAN, Warden, ORDER
Respondent-Appellee.
Before: BERZON and WATFORD, Circuit Judges, and WHALEY,* District
Judge.
Respondent’s Petition for Panel Rehearing, Docket Entry No. 41, is
DENIED. The Memorandum Disposition filed December 13, 2019, Docket Entry
No. 35, is WITHDRAWN and REPLACED by a new Memorandum Disposition
filed concurrently with this order.
*
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 31 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH KON, No. 18-55401
Petitioner-Appellant, D.C. No.
8:16-cv-00397-SVW-SK
v.
STUART SHERMAN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted November 15, 2019
Pasadena, California
Before: BERZON and WATFORD, Circuit Judges, and WHALEY,** District
Judge.
Kenneth Kon appeals from the denial of his petition for a writ of habeas
corpus. We granted a certificate of appealability on the sole issue of whether his
statements to the police were admitted in violation of his Fifth Amendment rights
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
under Miranda v. Arizona, 384 U.S. 436 (1966). We reverse and remand for an
evidentiary hearing on this discrete issue.
1. The parties dispute what standard of review should govern our
analysis. The Warden argues that the California Court of Appeal’s and Supreme
Court’s summary denials of Kon’s state petitions were adjudications “on the
merits” and therefore entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). However, the state
superior court issued a reasoned opinion denying Kon’s petition on purely
procedural grounds1 and nothing indicates the appellate courts’ subsequent
summary denials relied on different reasoning. In these situations, we “look
through” those summary denials and review the superior court’s decision. See
Wilson v. Sellers, 138 S. Ct. 1188, 1195-96 (2018); Ylst v. Nunnemaker,
501 U.S.
797, 803-04 (1991). Because the superior court did not reach the merits of Kon’s
claim here at issue—despite the fact that he properly presented it—AEDPA does
not apply and we review de novo. See Pirtle v. Morgan,
313 F.3d 1160, 1167 (9th
Cir. 2002).
2. Kon contends that he invoked his right to counsel on three
1
The Warden did not raise a procedural default defense before either the district
court or this court. At oral argument, counsel advised that this was a deliberate,
tactical decision. As a result, any procedural default defense has been waived. See
Wood v. Milyard, 566 U.S. 463, 472-74 (2012).
2 18-55401
occasions—first in the high school parking lot immediately after his arrest, then
twice more at the police station at the beginning of the recorded custodial
interrogation. He argues that the police ignored these requests, continued to
interrogate him, and elicited a confession, and that the admission of the recording
at trial violated his rights under the Fifth Amendment.
Given that a suspect only needs to ask for counsel once and does not need to
renew his or her request if interrogated again later, see Edwards v. Arizona, 451
U.S. 477, 482, 484-85 (1981), the key issue in this case is Kon’s first alleged
request. And here, Kon consistently alleged in his state and federal habeas petitions
that after the police arrested him in the high school parking lot, he “asked an
officer for a lawyer but was told that it was the end of the work day, none
available.” Because this allegation, if true, would entitle Kon to relief, and because
he has never been afforded a state or federal hearing on his claim, we conclude that
the district court erred in denying his request for an evidentiary hearing. See Hurles
v. Ryan,
752 F.3d 768, 791-92 (9th Cir. 2014); Earp v. Ornoski,
431 F.3d 1158,
1167 (9th Cir. 2005).
3. The Warden argues that even if the Fifth Amendment violation
occurred as alleged, it was nevertheless harmless because the jury also heard the
victim’s testimony and the recording of the covert telephone call conversation
between Kon and the victim’s mother.
3 18-55401
In habeas proceedings, relief is only available if the constitutional error had
a “substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In a case nearly identical to this
one, we held that the admission of a recorded confession met this standard when—
despite the victim’s detailed testimony—there was no physical evidence, the
defendant’s entire interrogation and apology letter were played for or read to the
jury, and the prosecutor relied heavily on the custodial statements in closing
argument. Garcia v. Long,
808 F.3d 771, 782-84 (9th Cir. 2015). The Warden
emphasizes that the jury also heard the recording of the covert telephone call
conversation between Kon and the victim’s mother. However, the statements Kon
made during this call were considerably less incriminating than the ones he made
during the custodial interrogation.2 He admitted to penetrating the victim—an
element of one of the offenses for which he was convicted, Cal. Pen. Code §
288.7(b)—in the confession only. Accordingly, we conclude that the Miranda
violation, if it occurred as alleged in the petition, had a substantial and injurious
effect on the jury’s decision with respect to Kon’s conviction for Sexual
Penetration With a Child 10 Years of Age or Younger, Cal. Pen. Code, § 288.7(b).
2
The Warden also argues that because Kon testified, his custodial statements were
still admissible for impeachment. While true, see, e.g., Bradford v. Davis,
923 F.3d
599, 615 (9th Cir. 2019), the prosecutor did not use Kon’s statements to impeach
him but rather used them as substantive evidence of his guilt.
4 18-55401
With respect to Kon’s conviction for Committing a Lewd or Lascivious Act
on a Child Under the Age of 14 Years, Cal. Pen. Code § 288(a), however, we
conclude that the admission of the covert telephone call conversation rendered the
alleged Miranda violation harmless. Thus, further habeas proceedings, including
the evidentiary hearing, shall be limited to reviewing the legality of Kon’s
detention only as it relates to his conviction for Sexual Penetration With a Child 10
Years of Age or Younger.
REVERSED and REMANDED for an evidentiary hearing.
5 18-55401
