                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 01 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


KENNETH PAUL YORK,                               No.   16-15060

              Petitioner-Appellant,              D.C. No. 3:15-cv-01521-EMC

 v.
                                                 MEMORANDUM*
CLARK E. DUCART, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                    Argued and Submitted November 15, 2017
                            San Francisco, California

Before: BERZON and FRIEDLAND, Circuit Judges, and SESSIONS,** District
Judge.

      Kenneth York was convicted of first-degree murder for the killing of

Michael “Merlin” Fidler during a burglary. He seeks a writ of habeas corpus on



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
the basis of ineffective assistance of counsel (IAC). See Strickland v. Washington,

466 U.S. 668 (1984); 28 U.S.C. § 2254(d).

      1. The performance of York’s trial counsel was deficient. See Strickland,

466 U.S. at 687. His failure to review the prosecution’s evidence, and in turn to

introduce cell phone records that would have severely undermined the testimony of

the state’s key witness, fell “below an objective standard of reasonableness” and

“outside the wide range of professionally competent assistance.” Id. at 688, 690.

The California Supreme Court’s conclusion otherwise was “contrary to, or

involved an unreasonable application of, clearly established Federal law.” 28

U.S.C. § 2254(d)(1).1

      The cell phone records are significantly exculpatory. They contradict the

testimony of Junior Perez, the prosecution’s main witness linking York to the

crime. Perez provided a full before-and-after timeline of York’s supposed

involvement in the shooting, and was the only witness who provided direct,




      1
        The California Supreme Court denied York’s petition for post-conviction
relief without opinion, so we look to “what arguments or theories supported or, as
here, could have supported,” its decision. Harrington v. Richter, 562 U.S. 86, 102
(2011).
                                         2
firsthand testimony of York’s actions the night of the crime.2 The phone records

would strongly support a finding that York did not call Perez at 3 a.m. the morning

of the crime, as Perez testified.3 At the same time, they undercut Perez’s alibi and

raise questions of how he came to be in possession of a duffel bag containing

incriminating evidence. Had they been introduced, the records would have

bolstered the defense’s theory that Perez—not York—was the second intruder,

even if York was otherwise involved.4


      2
        Perez testified that York met and exchanged telephone numbers with Tyson
Morehead, who participated in the crime but has never been apprehended, the
afternoon before the burglary, after York had discussed robbing a drug dealer;
called Perez as he was staking out Fidler’s apartment complex several hours later;
called Perez over to his house at 3 a.m., told him that “shit went bad,” and gave
him a duffel bag full of clothing that York later burned; and told him again later in
private that “[s]hit went bad and the guy got shot.”
      3
         While not conclusive proof that York did not call Perez at 3 a.m., the
records—together with Perez’s trial testimony and other statements he made to
detectives—are weighty evidence that no such phone call was made. Perez told
police that he and York communicated exclusively by cell phone during this time.
Perez’s testimony that he had missed one or two calls from York before he called
him back on the night of the crime, would make no sense unless he received the
calls from a number he recognized. So while it is theoretically possible that York
called Perez from a different phone, that scenario runs entirely counter to Perez’s
own statements in the record.
      4
        The record suggests, and York’s brief does not dispute, that both Perez and
York were involved in the crime or its cover-up to some extent. Evidence of
York’s complicity does not, however, foreclose his claim that, but for his counsel’s
constitutionally significant failure to introduce probative evidence casting doubt
upon his guilt, he would not have been convicted of first-degree murder.
                                          3
      The Pleasant Hill police department subpoenaed York’s cell phone records

from Sprint Nextel, his service provider. At some point before or during trial, the

records were turned over to York’s counsel, who either did not look at them, or

forgot he had them, until after the jury had retired to deliberate. Even then, it

seems he did not review them closely enough to grasp their exculpatory value.

      Trial counsel’s failure to review the evidence obtained by law enforcement,

turned over to him by the prosecution, and later located in his own case file, was

deficient performance. “[C]ounsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691. Counsel’s investigation “should always include

efforts to secure information in the possession of the prosecution and law

enforcement authorities.” Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 1

ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)).5 Inherent in

“secur[ing]” that evidence is the obligation to review it—that is, to “make some




      5
        “Prevailing norms of practice as reflected in American Bar Association
standards and the like . . . are guides to determining what is reasonable, but they
are only guides.” Strickland, 466 U.S. at 688. The standards in place during
York’s trial are substantively identical to those quoted in Rompilla. See Rompilla,
545 U.S. at 387 n.6; ABA Standards for Criminal Justice, Prosecution Function
and Defense Function 4-4.1 (3d ed. 1993).
                                           4
effort to learn the information in the possession of [those] authorities.” Id. at 387

n.6 (emphasis added).

      No conceivable strategic judgment could explain counsel’s failure to review

the records.6 The state does not articulate one. Counsel’s failure to review the

exculpatory cell phone records was thus the result of neither “reasonable

investigations” nor “a reasonable decision that ma[de] particular investigations

unnecessary.” Strickland, 466 U.S. at 691; see Rompilla, 545 U.S. at 387. “The

record . . . underscores the unreasonableness of counsel’s conduct by suggesting

that [his] failure to investigate thoroughly resulted from inattention, not reasoned

strategic judgment.” Wiggins v. Smith, 539 U.S. 510, 526 (2003).

      As counsel’s incompetence in failing to locate the phone records in the

material disclosed by the prosecution is beyond reasonable dispute, the state

court’s conclusion that York did not show that counsel’s performance was

deficient under Strickland was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).7



      6
        Trial counsel declined to submit an affidavit to habeas counsel explaining
his decisions.
      7
       Because trial counsel’s performance with regard to the cell phone records
was deficient, we do not address whether his failure to investigate an alibi defense
was also deficient.
                                          5
      2. York was prejudiced by trial counsel’s failure to review the material

disclosed by the government and, in turn, to introduce the phone records at trial.

See Strickland, 466 U.S. at 692. Had counsel located and introduced them, the

phone records would have “alter[ed] the entire evidentiary picture” before the jury,

id. at 696, resulting in “a reasonable probability that . . . at least one juror would

have harbored a reasonable doubt” as to York’s guilt. Buck v. Davis, 137 S. Ct.

759, 776 (2017).

      The phone records would have shown that a key piece of Perez’s

testimony—the 3 a.m. phone call—quite likely did not happen. Beyond

discrediting Perez’s testimony, the records would have bolstered the defense’s

theory that Perez, not York, was the second intruder (along with Tyson Morehead).

If no early-morning phone call occurred, and no subsequent meeting with York,

the jury would be left to wonder why Perez (and his wife)8 invented those events,

whether he was actually at home and in bed the night of the crime, and how he

came to be in possession of a duffel bag full of potentially incriminating evidence

if York did not give it to him that night.




      8
        Lauren Lackey—Perez’s wife by the time of trial—also testified about the
3 a.m. phone call, so the phone records would have contradicted her testimony as
well.
                                             6
       Notably, the significance of potential cell phone records was clear to the jury

and the parties. During closing argument, the prosecutor told the jurors, “I wish

we had the telephone records to corroborate [Perez’s testimony about the phone

call.]” The prosecutor also referred to Lackey’s testimony, which corroborated

Perez’s account of the night, as an “alibi” for Perez, and placed special emphasis

on the call. One juror sent a note to the judge asking specifically whether “phone

records exist which confirm Mr. York called Jr. Perez” on the morning of the

crime. In a post-trial motion to the judge, York’s lawyer described phone records

as “the type of evidence that could push a juror one way or the other.”

       With Perez’s testimony severely undermined by the phone records, the

state’s case against York would have been “only weakly supported by the record.”

Hardy v. Chappell, 849 F.3d 803, 823 (9th Cir. 2016) (quoting Strickland, 466

U.S. at 696). “[N]o physical evidence whatsoever linked [York] to the crime.” Id.

at 824; see also Cannedy v. Adams, 706 F.3d 1148, 1164 (9th Cir. 2013). And the

evidence in the record was equivocal, secondhand, or subject to convincing

rebuttal.

       The testimony from the four Nevada City witnesses indicated that York was

probably involved in covering up the crime, but pointed no more to his direct

participation in the home invasion-murder than to Perez’s. Lenny Cabrera gave


                                          7
incriminating evidence about York, but Cabrera’s statements to detectives

regarding his close relationship with Perez, elicited on cross-examination, deprived

his testimony of the weight it might otherwise have had. James Connelly’s

tentative courtroom identification of York was inconsistent with the suspect

description he gave to police the night of the crime, which itself much more closely

matched Perez than it did York.9

      Tesse Perez testified that York essentially confessed his role in the crime to

her and provided details about the break-in. But a jury would have to balance this

specific testimony against her motive to lie to protect her brother, Junior Perez; her

complicated romantic history with York; and the other evidence impeaching her

presented by York at trial. The jury might well have viewed her testimony quite

skeptically had her brother’s and sister-in-law’s testimony and credibility been

undermined by the cell phone records. “The Strickland test is . . . not a sufficiency

of the evidence standard nor is it a substantial evidence standard.” Hardy, 849

F.3d at 824 n.9. “[C]onsider[ing] the totality of the evidence before the judge or

jury,” Strickland, 466 U.S. at 696, and how the phone records would have changed



      9
        The district court credited the sparse testimony given by Penny Morales,
but the statements of York’s to which she testified were too vague and lacking in
context to be significantly probative of York’s involvement in the home invasion-
murder.
                                          8
the evidentiary landscape before them, “there is a reasonable probability that the

unpresented evidence would have altered at least one juror’s assessment” of York’s

guilt, Vega v. Ryan, 757 F.3d 960, 974 (9th Cir. 2014) (quoting United States v.

Kohring, 637 F.3d 895, 906 (9th Cir. 2010)).

      In short, the phone records would have removed the linchpin of the state’s

case against York. The California Supreme Court’s assessment that York was not

prejudiced by this lapse was “an unreasonable application of[] clearly established

Federal law, as determined by the Supreme Court of the United States” in

Strickland. 28 U.S.C. § 2254(d)(1). The state’s case rested on Junior Perez’s

testimony; the evidence that trial counsel failed to locate and introduce would have

undone that testimony. While there was other testimony in the record supporting

York’s involvement, all of it was either equivocal or its credibility or reliability

was subject to significant challenge. Under those circumstances, no “fairminded

jurist could fail to acknowledge at least a reasonable probability of a different

outcome.” Cannedy, 706 F.3d at 1165.

      The judgment of the district court is REVERSED and the case is

REMANDED with instructions to grant the writ of habeas corpus.




                                           9
