                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 29 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


KEVIN BENNETT,                                   No. 08-55700

              Petitioner - Appellant,            D.C. No. 2:05-CV-07953- JFW
                                                 (SS)
  v.

MATTHEW CATE,*                                   MEMORANDUM**

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                     Argued and Submitted December 7, 2010
                              Pasadena, California

Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior
District Judge.***


       *
             Respondent-Appellee Matthew Cate, Secretary of the California
Department of Corrections and Rehabilitation, has been substituted for his
predecessor, James Tilton, pursuant to Federal Rule of Appellate Procedure
43(c)(2).
       **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       ***
             The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
      Kevin Bennett, a California state prisoner serving a term of 51 years to life

following his jury conviction of second degree murder, appeals the denial of his

habeas petition. 28 U.S.C. § 2254. We certified two issues for appeal and appointed

counsel to assist him. We have jurisdiction under 28 U.S.C. § 1291and § 2253(a).

We conclude that the attorney’s incompetent performance seriously undermines the

reliability of the verdict. Strickland v. Washington, 466 U.S. 668, 686 (1984) (“The

benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.”). We reverse and remand

with instructions to grant a conditional writ of habeas corpus. Because we grant

relief on the first issue, we do not reach the second issue.

      A federal court may grant habeas relief only if the state court decision 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); Williams v. Taylor, 529 U.S. 362, 407 (2000). The Court reviews de

novo the District Court’s decision to grant or deny a writ of habeas corpus. Lewis v.

Mayle, 391 F.3d 989, 995 (9th Cir. 2004).

       The law governing the basic function of a criminal defense attorney to

investigate the facts is well established. Wiggins v. Smith, 539 U.S. 510, 521-22,


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525 (2003) (holding that counsel must investigate to make an informed decision

about strategy); Williams, 529 U.S. at 390; Strickland, 466 U.S. at 687, 690-91;

Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001). “[C]ounsel must, at a

minimum, conduct a reasonable investigation enabling him to make informed

decisions about how best to represent his client.” Sanders v. Ratelle, 21 F.3d 1446,

1456 (9th Cir. 1994).

      The attorney’s performance was objectively unreasonable. He failed to read

his own case file, as the blood evidence that bolstered Bennett’s self-defense theory

was in plain view in several police reports. Detective Tom Snyder drew a diagram

of the backyard area that indicated blood drops on and near the concrete patio.

Other officers mentioned the blood on and near the patio in their written reports.

Detective Dossey recorded Officer Linn’s observation of “small blood droplets in

the grass east of the patio.” Detective H. Rodriguez observed “additional drops of

blood on cement porch and grass approximately 10 feet east of the rear door to the

residence. It appears the drops were leading in a southeast direction.”

      The adversarial system does not function when defense counsel is unaware of

the core facts of the case. Counsel’s failure to notice blood evidence in several

police reports was unreasonable, especially in light of Bennett’s version of the

events. Strickland, 466 U.S. at 690-91 (holding that defendant’s statements to


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counsel are critical in determining whether further investigation is necessary). The

evidence counsel failed to present would have substantially bolstered Bennett’s

defense. Bennett testified that the victim ambushed him in the darkness just as

Bennett stepped out of the house. Yet counsel failed to question the police officers

about the blood on the patio and failed to consult with an expert (for example, to

substantiate the officer’s observation that the blood drops were leading toward the

backyard area). When the prosecutor questioned a police officer about blood on the

wall in the area across the yard where the victim fell, counsel was unprepared to ask

any follow-up questions. The attorney’s performance was deficient.

      “The defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; id. at 692-93 (“[A]

defendant need not show that counsel’s deficient conduct more likely than not

altered the outcome in the case.”); Alcala v. Woodford, 334 F.3d 862, 873 (9th Cir.

2003).

      We have no difficulty finding that the deficient performance was prejudicial.

As defense counsel stated during the motion for a new trial, the “whole case turned

on” whether the blood evidence substantiated Bennett’s testimony. See Moore v.


                                          4
Czerniak, 574 F.3d 1092, 1108 (9th Cir. 2009). Other evidence was consistent with

Bennett’s explanation; for example, the single knife wound to the front of the

victim’s chest and Sharon Kitagawa’s testimony. The prosecutor relied on the

chase as described by Paul Kitagawa’s testimony (though the police report of his

interview on the night of the stabbing did not contain that information) and the

blood stains found on the wall on the far side of the yard. The prosecutor argued

that Bennett, not Paul Kitagawa, lied on the stand.

      The jury asked questions about Bennett’s version of the events that revealed

the critical importance of the blood evidence. They asked to rehear the testimony of

Paul and Sharon; they asked “where was the body found – exact location in back

yard”; and “were there any blood stains on the patio? If so, where!” Frantz v.

Hazey, 533 F.3d 724, 742 (9th Cir. 2008) (en banc) (when “jury is troubled enough

to seek advice” the jury will seriously consider the trial court’s response to a

question). Here, the jury was misled by the response to their inquiry.1 Counsel’s



       1
       The trial judge asked counsel “[d]o we agree that there was no testimony as
to any blood found on the patio?” and both attorneys answered “yes.” Then the
judge restated “there was no blood?” and defense counsel added “or anywhere else
on the patio.” When the judge repeated the jury question “was there any blood
found on the back – on the patio,” defense counsel said “I would stipulate that.”
While the trial court correctly informed the jury there was no testimony about
blood on the patio (“nothing testified to about blood on patio”), the defense
attorney’s failure to investigate critical facts is apparent.

                                           5
error and lack of preparation directly impacted the jury’s deliberations. See

Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) (“When a jury makes

explicit its difficulties a trial judge should clear them away with concrete

accuracy.”).

      Because Bennett took the stand, it was critical to have any available objective

physical and forensic evidence to support his version. Riley v. Payne, 352 F.3d

1313, 1319-20 (9th Cir. 2003) (finding ineffective assistance of counsel when

attorney failed to investigate client’s self-defense explanation); Hart v. Gomez, 174

F.3d 1067, 1070 (9th Cir. 1999) (when attorney failed to investigate, “the jury was

left to decide, without benefit of supporting or corroborative evidence,” the

credibility of trial testimony); Brown v. Myers, 137 F.3d 1154, 1157-58 (9th Cir.

1998) (“[W]ithout any corroborating witnesses, [petitioner’s] bare testimony left

him without any effective defense.”).

      The jury could have convicted Bennett of a lesser included offense of

manslaughter or the trial court could have imposed a lower sentence. Daniels v.

Woodford, 428 F.3d 1181, 1209 (9th Cir. 2005). Certainly, there are problems with

Bennett’s case, but these factual problems do not excuse counsel’s failure to read

the police reports and look at diagrams that were the foundation of his client’s

defenses of self-defense and by accident. Bennett is not entitled to a perfect trial,


                                           6
but he is entitled to more than he received. Riley, 352 F.3d at 1325 (granting habeas

relief under Strickland because petitioner “did not get a fair shake from the legal

system”); Alcala, 334 F.3d at 872-74.

       The state court’s determination was an unreasonable application of the

Strickland standard. Riley, 352 F.3d at 1322-25. Bennett has established he was

deprived of his Sixth Amendment right to counsel.

       On remand, the district court shall enter judgment granting a conditional writ

of habeas corpus directing that Bennett be released from custody unless the State of

California begins trial proceedings against Bennett within a reasonable time as set

by the district court.

              REVERSED AND REMANDED.




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