F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

Y U N H S E N G L I A O , Petitioner-Appellant
,

v.

M A U R I C E J U N I O U S , R espondent-Appellee

. No. 14-55897

D.C. No. 2:10-cv-05691-J GB -J CG

OPI NI ON

A ppeal from the United States District Court for the Central District of California J esus G. B ernal, District J udg e , Presiding

Arg ued and Submitted October 23, 2015—Pasadena, California

F iled J anuary

29, 2016

B efore: Harry

Preg e rson and Stephen S. Trott, Circuit J udg es and W illiam H. Stafford, * Senior District J udg e.

O pinion by J udg e Trott

* T h e Ho n o rab le W illiam H. Staf f ord
, J r., Sen io r District Ju d g e f o r th e U.S. District Co u rt f

o r t h e N o rth ern District o f Flo rid a, s ittin g b y d esig n atio n

.L I A O V

. J U N I O U S 2

SUMMARY * *

Habeas Corpus

The panel reversed the district court’s denial of California state prisoner Yun Hseng L i ao’s habeas corpus petition challeng ing his conviction for assaulting and attempting with premeditation to k ill h is ex -g irlfriend’s teenag e son, a nd remanded.

L iao’s unsuccessful defense w as that th e incident happened while he was in a state o f unconsciousness during

an episode of sleepwalking
, and thus, that he lacked the intent required for the crimes with which he was charg ed.

During further p roceeding s on L iao’s ine f f ective assistance claim after n ewly discovered evidence revealed a
s i gn i ficant lapse on trial counsel’s part, the Superior Court concluded that trial c ounsel’s performance h a d been

cons t itutionally defective by failing to secure medical

e vidence to support L iao’s primary ex pert’s sleepwalkin g opinion, but that counsel’s failure had not been prejudicial.

The panel concluded that the Superior Cour t ’ s decision that L iao suffered no prejudice was based on an unreasonable determination of the fact s a nd was o bjectively unreasonable in its application of clearly established F ederal constitutional law.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L I A O V

. J U N I O U S 3

COUNSEL

Dennis A. F ischer (arg

ued) and J ohn M. B ishop, L aw office of Dennis A. F ischer, Santa Moni c a , California, for Petitioner-Appellant.

Ry an M. Smith ( arg ued), D eputy A ttorn e y General, Kamala D. Harris, Attorney General of California, Gerald A

. Eng ler, Chief Assistant Attorney General, L ance E. W inters, Senior A s sistant Attorney General, and Kenneth C. B ry n e, Supervising Dep uty Attorney General, L os Ang eles, California, for Respondent-Appellee.

OP INION

TROTT, Senior Circuit J udg e:

On J une 1 6
, 2003, a jury in the Superior Court of L os Ang eles County
, California convicted appellant Yun L iao o f assaulting and attempting with premeditation to kill Henry Chen, his ex -g irlfriend L i’s teenag e son. L iao admittedly hit Chen three times on the h ead w i t h a h ammer at 4:00 a.m while Chen was asleep. L iao’s unsuccessful defense was that
t h e incident happened while he w as in a state of unconsciousness during an e p isode of sleepwalking
, and thus, that he lacked the intent r equired f or the c rimes with which he was charg ed. The court sentenced him to life in prison with the possibility of parole, plus four y ears. Twelve y ears later, he has served his time and is out of prison on parole.

L iao’s appeal as well as his pursuit of state h abeas corpus relief failed, but because of newly d iscovered evidence

r e v ealing a sig nificant lapse on his trial counsel’s part, t h eL I A O V

. J U N I O U S 4

California Court of Appeal r e turned h is case to the Superior Court f or further proceeding s on his claim of ineffectiveness of counsel. T he C o u rt of Appeal ordered the California Department of Corrections and Rehabilitation to show cause why L iao’s c onviction shoul d not be set aside. After a hearing
, the Superior Court c o ncluded in a decision s p oken from the bench that trial c ounsel’s performance h ad i n d eed been constitutionally defective by failing t o secure medical evidence to support his p rimary ex pert’s sleepwalking opinion

– a conclusion with w h i c h the prosecution ag r eed. The Superior Court found, however, that counsel’s f a i lure h ad not been prejudicial.

After unsuccessful attempts in state court to overturn the Superior Court’s decision, L iao filed a p etition for a writ o f habeas c orpus in the Central District of California, alleg ing a violation of his Six th Amendment r ig ht to effective assistance of counsel. I n an o rder accepting t h e r e port a nd recommendation of a mag istrate judg e ag reeing w i t h the Superior Court, the district court d enied L iao’s petition. He appeals.

W e have jurisdiction over this timely appeal pursua n t to 28 U.S.C. §§ 1291 and 2253. B ecause we conclude that the Superior Court’s decision was (1) based on an unreasonable determinatio n o f the facts, and (2) objectively unreasonable in its application of clearly established F ederal constitutional law, we reverse.L I A O V

. J U N I O U S 5

I

F acts 1

At about 4:00 a

. m

. o n A ug ust 4, 2 002, Henry Chen was awakened by the sensation of three blows on his head. They

were inflicted by a househ o l d hammer, w hich Chen had left

on the floor o f his room. He covered his head with his hands, and in the da r k soug ht his assailant, w hom h e pushed to the g round. Chen then saw that it was L iao, and he a s k e d L iao what he was doing

. L iao did not reply

. Chen r an into his mother L i’s room, p as s i n g his y oung er brother Danny
, a nd telling her L iao had hit him. She covered his head, and asked L iao to c all the police. He stated he would g o to jail, but a fter several requests, he made the call. L i asked L iao why he hit Chen. After r epeating
, “W hy did I do it? ” L iao replied that he had been dreaming someone was h i t ting him, a nd he h ad foug h t back.

As Chen walked outside to meet arriv i n g paramedics, L iao told him to say he had fallen d o wn t h e stairs, because otherwise he would g o to jail.

C hen suffered three scalp lacerations, each over an in c h long
, w hich were closed by staples, as well as a cut to his ear. He also suffered a concussion, and both of hi s h an ds were fractur e d

. He remained at the hospital for about six h ours. The attending phy sician o pined that Chen had received a series of g lancing b u t direct blows to the head. There was no skull o r brain d a mag e. At the time of trial, Chen still

1 We bo rro w th ese f

acts w ith o u t attrib u

tio n f ro m th e Calif

o rn ia Co u rt of A p peal’ s u n

p u b lish ed d ecisio n

. Peo

p le v. Yu n Hsen g Lia o , S e c o n d A p pellate District, No . B 1 70 5 9 6

.L I A O V

. J U N I O U S 6

ex p erienced headaches and diz z iness, as well as some p a in in his hands.

Chen had known L iao for f i v e y ears, during which time L iao had been L i’s b oy friend, and h ad lived with h er a nd her

sons for four y ears. I n that time, L iao had never previously struck Chen, a lthoug h, a c cording [ to] Chen, he had h it Danny
once, and L i twice (out of Chen’s p resence). L iao had shown

no animos i t y toward Chen, w ho believed L iao had a ttacked him out of ang er at L i.

On the nig h t of the incident, Chen testified that L iao a nd L i had had a

n arg ument in her room. L i then stopped a fig ht between the broth e r s, and L iao told Chen not to make L i ang ry

. B efore Chen w e n t to b ed around midnig h t, he saw L iao, smoking a cig arette and staring o ut the sliding w indow by the balcony

. Chen testified that L iao smoked when he was “stressed.” D anny went to sleep on the l iving room couch. W h en a wakened by the blows, Chen, who had been sleeping face down, threw L iao off, and then saw h i m

. L i a o seemed shocked, and stared at Chen, mouth open. L iao was holding the hammer, raised, while leaning a g ainst a wall about seven feet from Chen. Chen then asked L iao what he was d o i n g, and received no reply

.

Dan n y h a d g one to sleep about 9 :00 p.m. H e was awakened by the sound of three blows, like a hammer striking

a nail. He saw his brother bleeding profusely

. L i asked L iao to call the police. The f

irst time he refused, say

ing that if he went to jail this time it would cost him a lot of money to g et out. After a second request he did call, and he accompanied L i to the hospital.L I A O V

. J U N I O U S 7

II

A.

Counsel’s Error

I n preparation f

or L iao’s trial, h is counsel hired Dr. Clete Kushida, a Director of the S t a nford University Center for Human Research and a board certified phy sician at Stanford’s Sleep Disorders Clinic. Dr. K ushida is also o n the academic faculty o f the Stanford School of Medicine. After reviewing the facts and circumstances of L iao’s unusual pre-da wn b e havior, Dr. Kushida recommended that L iao underg o a medical ex amination and a “sleep study ,” formally known a s poly somnog ram.

Dr. Kushida put his recommendations in a letter dated A p r il 8, 2003. I n the letter, Dr. Kushida said that “further evaluation o f Mr. L iao is warranted, with a con s i d e r ation o f a sleepwalking diag n o sis.” The inquiry would include “[ a] n evaluation conducted by a sleep specialist. This would entail

a r eview of Mr. L iao’s medic a l h i s tory and a phy sical evaluation.” Dr. Kushida also recommended “[ a] n overnig ht poly somnog ram (sleep study ) conducted by a n e x p erienced poly somnog raphic technolog ist, and r ev iewed by a sleep specialist

. . . a

n important component of the evaluation of an individual with a diag nosis of sleepwalking .”

B e cause L iao was in c u stody
, counsel filed a request with the Superior Court for authoriz ation to conduct the procedures recommended b y Dr. Kushida. O n April 10, 2003, a court commissioner – n ot the trial judg e

– denied the motion wi t h out prejudice. On April 25, 2003 counsel promptly renewed h is motion, supplementing it with a secondL I A O V

. J U N I O U S 8

letter from Dr. Kushida dated April 22, 2003, reiterating the necessity of a sleep study

. We will discuss the content o f this second letter in more d etail in part B

. o f t h i s opinion. The

co m m i s s ioner took the matter under submission. W h en counsel’s a ssociate later called the court to inquire about the status of the request, a court clerk erroneously told hi m t h at the motion had been denied when in fact it had been g ranted

on May 1
, 2003. On the c ommissioner’s Order, he wrote, “1. To be c ompleted prior to trial date - 2. Not to ex ceed $2500,” followed by his sig nature. The approving Order, prepared b y counsel and sign ed by the court commissioner, lay undiscovered in the court’s file until L iao’s conviction w as on appeal.

I nstead of conducting any further i nquiry into the status of his motion, counsel proceeded to trial without the benefit of the medical ex amination and study for which Dr. Kushida had asked. During the trial, the absenc e of a sleep study turned out to be the Achilles heel of L iao’s defense.

At all stag es of the proceeding s, California h a s conceded that counsel’s failure to verify wha t t h e court c lerk told his associate over the phone amounted to c o nstitutionally ineffective assistance u nder Strickland v. W a shington
, 466 U.S. 668 (1984).

B.

The Ef f ect at Liao’s Trial of the Absence of a Sleep Study

To establish L iao’s sleepwalking / lack of criminal intent defense, counsel called Dr. Kushida as an ex p ert wit ness. W h en Dr

. Kushida took the stand however, he had none o fL I A O V

. J U N I O U S 9

the material referenced in his letter to rely on or to support his opinion. He testified that becaus e h e d i d not have what he had asked for, a sleep s t udy a nd phy sical ex amination, he could not diag nose L iao as a sleepwalker, o n ly ren d e r an opinion that he suffered from that condition.

The absence of this information enabled the prosecutor to discredit Dr. Kushida’s testimony on cross-ex amination a

nd to r ender h is opinion suspect. The prosecutor’s f irst question

was whether Dr. Kushida had interviewed the d efendant. His

answer was no. The second question w as w heth er he h ad “conducted a

ny sleep studies of the defendant,” to which Dr. Kushida g a ve the same neg a tive answer. The third question

was a sta t ement: “So y our opinion is based on

– well, obviously y our opinion is n o t based on any thing that the defendant has told y ou or any thing that y ou h ave observed in study ing his sleep patterns, corr e c t? ” Answer, “That is correct.”

Over and over the prosecutor r eturned to the ab s e n c e o f

a sleep study a

nd p h y s ical ex amination to support Dr. Kushida’s testimony

— an a bsence caused by counsel’s error. On re-cross, she effectively hammered Dr. Kushida with his second p re-trial letter submitted to the court commissioner in support of counsel’s motion, using his ow n words recommending

an ex amination and a sleep study

. Q: The Prosecutor A: Dr. Kushida

Q Doctor, directing y our a ttention to y our letter to Mr. Donog h ue, or h is associate, dated April th e 2 2 n d

. I think y ou h ave a copy in
y our hand?L I A O V

. J U N I O U S 10

A Yes, I

do.

Q Do y o u s t ate in that letter that sleepwalking i s suspected in Mr. L iao’s case because of the following ?

A Yes, I do.

Q Okay

. Do y ou a lso state in that letter that the above points raise cl i nical suspicion that Mr

. L iao’s behavior d

uring the episode in question is compatible with sleepwalking ?

A Yes.

Q Ok a y

. D o y o u also say in that letter that further evaluation is warranted?

A Yes.

Q Do y ou continue to ex plain, specifica l ly

on pag e 2 of y our letter t hat a n o v ernig ht poly sonog ram [ s i c]
, a sleep study
, is

wa rranted to further e valuate Mr. L iao’s preliminary

sleepwalking diag nosis?

A Yes.

Q And then do y ou g ive the rationale fo r a sleep study

in Mr. L iao’s case?

A Yes, I do.L I A O V

. J U N I O U S 11

Q And there a

re three differen t rationales, correct?

A Yes.

Q You a lso state that it’s – a s l e e p study is

an objective test that is used to assess patients with sleep disorders, correct?

A Yes, I do.

Q And the last sentence y o u s a y that in the

case of M r

. L iao the sleep study is an im p o r tant component in his evaluation for a diag nosis of sleepwalking , correct?

A That is correct.

. . . . Q During my cross-ex amination did y ou say t h a t – did y ou testify that y o u c ould n o t

c o n c l u d e t h a t t h e d e f e n d a n t w a s a sleepwalker, j u s t that he may be a sleepwalker?

A W h at I s a id was I could n ot make an official diag nosis because offic i a l diag nosis depends on actually clinicall y ex amining the patient.

Q B u t y ou said that it was y our opinion that he may be a sleepwalker?L I A O V

. J U N I O U S 12

A Yes.

Q Okay

. B u t – a

nd it was also y our opinion that y ou needed to do a sleep study because it

was important to the diag nosis of him being a sleepwalker, correct?

A At that time, y es.

. . . . Q W e ll, then w hy did y ou want to do a sleep

s t udy a s y ou stated in y o u letter and as I thoug ht y ou stated this morning ?

A To rule out other potential c au s e s that

– the main reason is that the r e a re thing s that

can mimic sleepwalking and that is nocturnal

s e i z ures or epilepsy

. That’s the first p o int

. And that can really be confuse d w ith sleepwalking and that’s easily treated b y putting the person on anticonvulsants. That’s the first point.

The second point is looking at markers on the sleep study becaus e t h ere are some elements on the sleep study that y ou can find that are non specific markers, y ou know, that i n dicate tha t t h e p e r s o n m i gh t h a v e sleepwalking

. The thi r d reason is to rule out other sleep disorders such as sleep apnea o r periodic limb movements that can frag me nt the sleep a

nd trig g er off a sleepwalk ing ep i s o d e

. So that’s the reason. I t’s more toL I A O V

. J U N I O U S 13

look at the etiolog y of the condition, the cause of the condition.

. . . . Q And now y o u are say ing that y our opinion is that he is a sleepwalker, correct?

A Correct.

Q That indicates to me that there has been a chang e in opinion since y ou h ave been on the witness stand from this morning

.

A I would have to g o back, lo o k a t ex actly what I said. B ut it’s my opinion that he is a sleepwalker. A t that time may be perhap s I

was thinking about the actual diag nosis. And just to reiterate, to actually make a diag nosis, I would have to actually evaluate the patient. I f y ou were to ask me what my opinion is, my opinion is he is a sleepwalker.

. . . .
The Court: Doctor
, tell us the difference between y our opinio n and a medical diag nosis.

The W itness: Yes. F o r medical diag n o s i s I would actually have to see the patient, a n d,
y ou know, lay hands on the patient, phy sically

ex a mine the patient. I n t e r ms of an opinion, it’s based on material that I acquired about theL I A O V

. J U N I O U S 14

patient to actually make my opinion reg arding diag nosis. B ut I can’t actually say the word I diag nose this patient as ha ving a condition without actually talking with the patient. B ut t o clarify
, y ou know, based on the materia l that I have r e c e ived, y ou know, it is my opinion that he is a sleepwalker. I t’s just that I can’t actually sa y I d i ag nosed the patient a s being a sleepwalker because I haven’t actually phy sically

evaluated the patient.

C.

Rebuttal

I n rebuttal to Dr. Kushida’s vulnerable opinion testimony
, the p r o secution called D r. Kaushal Sharma, a phy sician board certified in p sy chiatry

. Dr. Sharma’ s e x p ertise was in

a p p ly ing “knowledg e and information about a suspected sleepwalker to the f

orensic issue.” H e admitted he had “not

run any sleep lab, therefore I wo u l d n o t call my self

ex c lusively an ex p ert in the field of sleepwalking .” The pro s e c u tion used Dr. Sharma to counter Dr. Kushida’s opinion. He did, using the a b s ence o f a sleep study a s his weapon.
Q: Prosecutor A: Dr. Sharma

A I was g iven the task of looking over the documents y ou described and h elping
, initially
, understanding a little bit more about the slee p disorders including sleepwalking

. And I was g iven the task of loo k i n g at the report or letters of tw o o f my professionalL I A O V

. J U N I O U S 15

colleag ues and seeing i f medically what they h a d d escribed based on the information th e y had a nd whatever else they m a y h a ve d o ne
was the diagnosis consistent with the inf ormation they had, and to tell y ou if I ag reed, in what aspect, and if I did not, in what aspect.

Q And did – in that process have y o u also formed y our own opinion with rega r d t o the defendant’s mental status?

A Yes.

Q L et me just directly jump into whether o r not y ou believe the defendant is a sleepwalker or has sleep disorders.

A Sleep disorders range from h aving diffic u lty f

alling asleep. He may have that p r o b l e m in the jail. I d on’t know for a fact

. B u t specifically a bout sleepwalking I believe
t h e information g iven to me is insufficient t o prove that he suffers from s l e epwalking disorder.

Q And any

information – well, why

is that?

A A n y c o n f i r m e d d i a g n o s i s o f somnambulism, s-o-m-n- a -b-u-l-i-s-m [ sic]
, which is just the fancy term for sleepwalking
, requires that the p ers o n b e subjected to sleep lab t e s t s where electrodes are placed o n the person’s brain a

nd the brain’s activity
, as wellL I A O V

. J U N I O U S 16

as the activity of the e y es, because they move at a r apid pace in certain phases o f the sleep, is detected. And then it’s seen if the person is doing activity wh ich is inconsistent with the normal averag e sleep.

To the best of m y knowledg e the defendant in this case was n ot g iven any such sleep lab test. So that’s the one problem I have and therefore I believe tha t there is insufficient data.

On cross-ex amination, Dr. Sharma stuck to his g uns.
Q: Defense Attorney A: Dr. Sharma

Q Now y our opinion t h ere is insufficient information to determine a diag nosis whether

o r n o t t h e d e fe n d a n t s u f f e r e d f r o m sleepwalking

. I s – what about as to an opinion, a medical opinion as com p ared to a medical diag nosis, is there a difference?

A W e ll, diag nosis – well, in many way s they

are. I n the contex t, they are the sa me. Diag nosis is an opinion.

Q Then are all opinions diag noses?

A No, they

are not.

Q So there is a difference?

A Yes.L I A O V

. J U N I O U S 17

Q So it’s possible for a doctor to reach – to form an opin i o n without y e t having a diag nosis, is that correct?

A Sure. A doc tor may have opinion that there is no diag nosis.

Q I s it y our opinion that a

– i t’s y our opinion, I believe y ou testified, that a diag nosis requires that the person be subjected to a sleep lab test, correct?

A I n this contex t, y es.

D.

Jury Argum ent

Having set up her summa t i on with the precision of a surg eon, the p rosecutor b elittled and m o c k ed Dr. Kushida’s testimony in final arg ument.
(Prose c utor) Dr. Kushida’s opinion, we have three different thing s with Dr. Ku s hida. I couldn’t b el ieve the way he testified on the stand, frankly
, ladies and g e n tlemen. H e say s that in his letters to the defense a t t o rney sleepwalking is susp e c ted, y ou know, et cetera, et cetera. This raises a c l i n ical suspicion. B u t t he sleep study is very important. The sleep study is very important.

T h e n when he c omes to the stand an d h e te s t i f ies in court he starts o ut and he say s,L I A O V

. J U N I O U S 18

y e ah, the defendant may be a sleepwalker. B u t I mean [ sic] need to do the sleep study in order to diag n ose h im or in order to s a y that he is a sleepwalk e r. This happened in direct

ex a mination, in my c ross-ex amination. B ut wh e n we come to the defendant’s or the defense attorney ’s redirect ex amination, w hat does h e say , he chang es his testim ony , rig ht here in front of us, in front our ey es. He say s the defendant is a sleepwalker. Oh, y eah, with medical certainty

. That means a doctor’s g uarantee, a stamp o f medical approval. H ow
can y ou tell me t hat’s not a diag nosis. He say s with medical certainty . And sleep study is not required contrary to what h e said. Then

– and then let’s look – so, y ou know, these a re the doctors the defense is putting up a nd asking y o u to be convinced. That’s unreasonable, lad i e s and g entlemen. These doctors have chang ed their testimony

.

W ith reg a rd to Dr. Sharma’s opinion, Dr. Sharma is the o n l y consistent doctor. His du t y w as to review Dr. Kushida’s’s [ sic] opinions and letters, review Dr. Vicary ’s opinions and letters and his finding s in that 8

- pag e report, r eview the preliminary hearing transcript, the police reports, the evidence, so
on so forth, and tell us w hether or not he thoug ht – whether or not he ag reed with them. And that was a major r isk on my part because he c ould hav e a gr eed with him. B ut y ou know what, it defies these two doctors, defies

common sense. A nd Dr. Sharma told us that.L I A O V

. J U N I O U S 19

He said there is insufficient evidence that the defe n d a n t i s a sleepwalker. He was very – I think very professional a

bout that. He could have said, y ou know, there is no e vidence that the d efendant is a sleepwalker or I don’t think the defendant is a sleepwalker for X, Y, and Z

r e asons. B ut he tells us there is insufficie n t evidence. Why ? B ecause there was no sleep study that was done, which is important.

III

The Sleep Study

The e ffect on L iao’s trial of counsel’s failure to secure an
ex a mination and a sleep study was litig ated on remand in an evidentiary hearing in the Superi o r Court. B efore the hearing
, L iao finally received his sleep study
, cond u c t ed in two phases b y Dr. Milton Erman, a dist i n gu i s h ed fellow o f both the A merican Psy chiatric Association and the American Academy of Sleep Medicine. Dr. Erman completed h is psy chiatric residency in B oston at Massachusetts G eneral Hospital and a four-y e ar fellowship at Harvard Medical School before g oing on to p ractice his specialty

. I n arriving
at his diag nosis r e ga r d ing L iao, Dr. Erman consulted an
ex p ert from Stanford, Dr. Guilleminault. Dr. Guilleminault is a world-renowned specialist in sleep disorders who has created a p roprietary computer s c o ring technique called “power spectral analy sis” which analyz e s objective data obtained from a patient during sleep studies.

B a sed o n the objective a nd subjective data collect ed during this detailed process, the doctors diag nosed L iao as a somnambulist, or a sleepwalker. They supported theirL I A O V

. J U N I O U S 20

c o llective opinion with their finding s of sleep a pnea, lo w sleep efficiency
, stress a

nd turmoil leading up to the event, E.E.G. results, a sleep hy pnog ram, sig nificant n o c turnal

ox y g en desaturations, a

nd abrupt a

rousals from sleep c aused by a lack of ox y g en, all information Dr. Kushida did n o t have. Arousals from sleep result when the brain realiz es that a person is not breathing . Sleep apnea arousals can produce sleepwalking . Dr. Erman’s ex planation was as follows:

B u t let me clarify o ne of the thing s I am not

sure we actually stated very clearly and that is the relati o n ship between sleep apnea and the capacity to provoke arousal events that may lead to an episode of sleepwalking

.

W h en someone is ex periencing a sleep apnea event, they are suffocating

. The airway is closed off. The ox y g en level is falling

. The levels o f c arbon d iox ide in the b ody are rising
, and it is a stressor that ty pically will lead to something very much like a classi c f i g ht-orflig ht response. So when the body recog niz e s the b o d y and brain recog niz es this event is g oing on after amorphiz ing a little bit, but the event is ended by an arousal. I f w e d o n ’t
arouse, we die. And tha t ’s why people who

are on sedati ve medications or alcohol may die from sleep apnea. T his arousal is very much a kin to somebody poking with a stick. This is the a n al og y I o ften use for patients which ex pla i n s why people with sleep a pnea
are so t i r e d because awakening repetitively during the nig ht.L I A O V

. J U N I O U S 21

The sleep apnea e vent can be a trig g er in susceptible i n dividuals for these episodes o f sleepwalking

. So the relevancy here a s w ell is that not o nly would it co n t r ibute to the sleep deprivation that would increase the risk of the apnea

– of the sleepwalking e vent, it could al s o s erve as the specific trig g er that would cause the sleepwalking

event.

Dr. Erman also testified that L iao’s b ehavior on the nig ht of the assault was c onsistent with not having been a “focused assault that leads to i njuries that mig ht have been ex pected had there been an intent to really seriously injure or kill, that there was amnesia and confusion following the episode.”

Dr. Erman was appropriately s k e p tical of L iao’s description of the events. To e n s u re that L iao was not manufacturing a self-serving version of what happened on the nig ht in question, Dr. Erman g ave him an occasion to do so, but L iao stuck to his story :
(Dr. Erman) I a c t u a l l y g a v e h i m t h e opportunity to embellish on the story because to satisfy my self that this was an a c c urate history t h at would be consistent with a nonrem arousal disorder, I wanted to see whether g iven t h e opportunity to embellish the report to p rovide with more d etail were there monster s , were there drag ons; a nd he didn’t provide that, which to me was c onsistent with the history and also consistent with his g iving
t he truthful account and not really provid i n g
me with more g ory details e ven when I g aveL I A O V

. J U N I O U S 22

h im the opportunity and sug g ested perhaps those mig ht have been present.

IV

Standard of

Review

Althoug h we review de novo a district court’s decision to g rant or t o d eny a 28 U.S.C. § 2254 habeas petition, our review of a state court decision is quite defer en t i a l

. I n this respect, we accept and assiduously apply the W arden’s statement of our demanding standard of review.

As amende d by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 22 5 4 ( d ) constitutes a “threshold r e striction,” Renico v

. Lett
, 559 U.S. 766, 773 n.1 (2010), o n federal habeas corpus relief as to state prisoners that “bars relitig a tion of any claim ‘adjudicated on the merits’ in state court” unless the claim meets one o f the statute’s two ex ceptions. Harrington v. Richter
, 562 U.S. 86, 98 (2011). Under those e x ceptions, r elief may be available if the state court decision was (1) “c ontrary to, o r involved an unreasonable application of, clearly established F ederal law,

as determined by the Supreme Court of the United States,” o r (2) “based on an unreaso n a b l e determination of the f acts in lig ht of the e vidence p resented in the State court proceeding

. ” Id. (qu o t i n g 28 U.S.C. § 2254(d)). Only if a petitioner can survive this threshold review as to claims previously rejected

on their merits by a state court is a federal court permitted to reach the merits of a petitioner’s claims, reviewing them de

novo. See Panetti v. Quarterman , 551 U .S. 930, 953 (2007) (“W h e n a s tate court’s a djudication of a claim is dependent

on an antecedent unreasonable application of f ederal law, the requirement set forth in § 2254(d)(1) is satisfied. A federalL I A O V

. J U N I O U S 23

court m u s t t hen resolve the claim without the deference AEDPA o therwise requires.”); see als o H o ward v. Clark
, 608 F .3d 5 6 3, 5 71–72 (9th Cir. 2010); Frant z v

. Hazey
, 533 F .3d 724, 735–36 (9th Cir. 2008) (en banc).

A state court decision is “contrary to” federal law only if it “applies a r

u l e that contradicts the g overning law” as set forth in Supreme Court opinions, or reache s a d i fferent decision from a Supreme Court opinion when confro n t e d w ith materially i n d isting u ishable facts. W illiams v. Taylor
, 529 U .S. 362, 405–06 (2000). A state court eng ag es in an “u n r e asonable application” of federal law if it identifies the correct g overning leg al principle f rom the Su p r e m e Court’s decisions b u t unreasonably applie s i t t o the facts of the prisoner’s case. Id. at 413.

T he inquiry under 2 8 U.S.C. § 2 254(d)(1) is shar p l y circumscribed. F irst, “clearly e stablished federal law” is limited to Supreme Court a uthority that “squarely addresses” the claim at issue and provides a “ clear answer.” W right v

. Van Patten
, 552 U.S. 120, 125–26 (2008); see also Lopez v

. Smith
, 135 S. Ct. 1, 5

– 6 (2014) (per curiam) (g rant of h abeas relief reversed where court relied heavily on circuit decisions and the Supreme Court had failed to address the specif i c question presented by that case); Marshall v. Rodgers
, 133 S. Ct. 1446, 1450–51 ( 2013) (federal habeas court may “look to circuit precedent t o ascertain whether [ a federal appellate court] has already held that the particular point in issue is clearly established by Supreme Court precedent,” b u t may not

use lower court authority “to refine or sharpen a ge n e r al principle o f Supreme Court jurisprudence into a specific leg al rule” or “ to d etermine wh et her a particular rule of law is so widely accepted among the F ederal Circuits that it would, if p resented to [ the Supreme] Court, be accepted a s correct ”) ;L I A O V

. J U N I O U S 24

Premo v

. M

oore , 5 6 2 U .S. 115, 127–28 (2011); Knowles v

. Mirzayanc e , 5 56 U .S. 111, 1 21–22 (2009); Carey v

. Musladin
, 549 U.S. 70, 77 (2006). And, in lig ht of the record b e f ore the state court a

n d the clearly established Sup r e m e Court precedent, the state court d ecision must h ave b e en “objectively u nreasona

b l e,” and not merely incorrect in the view of the federal c o u r t

. Lett
, 559 U.S. at 773; Richter
, 562 U .S. at 101–02; see a ls o F e lkner v. Jackson
, 562 U.S. 594, 597–98 ( 2 0 1 1 ) ( per curiam). “[ E ] ven a strong case for relief d oes not mean the state court’s contrary c onclusion was unreasonable.” Richter , 562 U.S. at 102.

The standard set forth in § 2254 ( d ) is “difficult to meet

. . . because it was meant to b e.” Id. ; see also Burt v. Titlow
, 134 S. Ct. 10, 15–1 6 ( 2 0 1 3 ) ( “Recog n iz ing the duty a nd ability of our state-court colleag ues to adjudicate claims o f constitutional wrong , AEDPA erects a form i d a ble b arrier to federal habeas relief for prisoners whos e c l aims have been adjudicated in state court.”). I t “reflects the view that h abeas corpus is a g u ard ag ainst ex treme malfunctions in the state criminal justice sy stems, n ot a substitu t e for ordinary error correction throug h appeal.” Richter
, 562 U.S. a t 102–03. T o that end, it precludes review of any claims previously rejected

on their merits by a state court ex cept in the narrow categ ory of cases “where there is no possi b i l ity fairminded jurists could d i sag ree that the state court’s decision conflicts with [ the Supreme] Court’s p recedents.” Id. a t 102. A c cording ly
, to overcome the bar o f § 2 2 54(d), a petitioner is re q u i red to show at the t h r es h old that “the state court’s ruling on the claim being pres e n t e d in federal court was so lacking in justification that there was an error well underst o o d a nd comprehended in e x isting law bey ond any possibility f o r fairminded disag reement.” Id. at 103; see also Titlow
, 134 S. Ct. at 1 6 (“W e will not lig htly conclude that a State’sL I A O V

. J U N I O U S 25

criminal justice sy st e m has ex p e r ienced the ‘ex treme malfunction’ for which federal habeas relief is the remedy .”) (quoting Richter
, 5 62 U .S. a t 1 02) ( alteration o m i t ted); Johnson v

. W

illiams
, 1 33 S. Ct. 1088, 1091, 1094 (2013) (standard of § 2254(d) is “difficult to meet” and “ sh arply limits the circumstances in which a federal court may issue a writ of habeas corpus to a s t ate prisoner whose claim was ‘adjud i c a ted on the merits in State court proceeding s’”) (quoting 28 U.S.C. § 2254(d)).

As for whether or n ot L iao suffered prejudice b ecause o f counsel’s error, our first task t h er e fore is to determine whether the Superior Court’s app l i c a t ion o f the prejudice prong of Strickla n d as measured under § 2254(d) “was so lacking in justification that there w as an e rror w ell u nderstood and comprehended in ex isting law bey ond any possibility for fairminded disag reement.” Richter
, 562 U.S. 86 at 103. Specifically
, d oes the Superior Court’s conclusion that there

was n ot a reasonable p robability that t h e missing evidence would have resulted in a different result in L iao’s trial survive this rig orous test?

V

Analysis

W e b eg in our evaluation w ith the state’s candi d a d m i ssion
at oral a rg umen t of the o bvious: D uring the trial, L iao was unmistakably prejudiced by the a bsence of both a sleep study and the additional information soug ht by Dr. Ku s h i d a

. Counsel for the W arden ag r eed (1) that Dr. Kushida was “clobbered” on cross-ex amination, and (2) that L iao thereby suffered p r ejudice during the trial in connection with the core of h is defense. W e have no doubt w hatsoever that this is true.L I A O V

. J U N I O U S 26

Dr. Sharma’s r ebuttal and the prosecutor’s summation prove the incontestable validity of c ounsel’s admission. W hat was the fat a l f l a w according to Dr. Sharma? The lack of a sleep study

. T hen, the prosecu t o r vouched for Dr. Sharma’s testimony in her summation to the jury , say ing
, [ Dr. Sharma] wa s v e r y – I think he was very professional about that. He could have said,
y ou know, there is no evidence that the defendant is a sleepwalker or I don’t think the defendant is a sleepw alker for X, Y, and Z

reasons. Bu t h e tells u s there is insufficient evidence

. W hy ? Because there was no sleep study that was done

. (Emphasis added).

W h y was there insufficient evidence to support Dr. Kushida’s opinion and therefore L iao’s defense? B ecause of counsel’s pre-trial error.

However, counsel describes the sleep study we now have fro m D r

. Erman a s impeaching Dr. Kushida, not at all supporting his opinion

. F rom this characteriz ation, counsel arg ues that had this sleep study b een available d uring the trial, it would not ha ve helped L iao – to the contrary

. Therefore, he arg

ues L iao suffered no prejudice.

T h i s a r g ument is unconvincing and patently irrec o n c i l a b l e with the r ecord. Doctor Erman’s d etailed testimony as quoted earlie r s p e a ks for itself. Dr. Erman and Dr. Guilleminault looked at the objective measurable r esults of the sleep study

an d concluded that L iao was a sleepwalker. Their joint diag nosis would not only have corroborated D r. Kushida’sL I A O V

. J U N I O U S 27

opinion, but it was predicated o n objective criteria that amounted to d irect medical evidence strong ly tending to prove t h e v a l i dity of L iao’s d efense. This evidence was not just c orroborative, and cert a inly more than cumulative. I t

was direct essential evidence of L iao’s asserted u n conscious state during the attack. I t is inconceivable that the r e sults of Dr. Erman’s sleep study and testimony would have impeached Dr. Kushida. Any arg ument to th e c o n trary is flatly unreasonable. Moreover, if counsel had Dr

. E r man’s and Dr. Guilleminault’s testimon y a vailable at L iao’s trial,

we f irmly believe that they

would have likely been called a s witnesses before Dr. Kushida took the stand. W hy ? B ecause they had what Dr. Kushida lacked: The objective r esults of a sleep study

.
The Superior Court’s fact-driven finding t h a t L iao suffered no prejudice evinces additional consequential errors which hig hlig h t the unreasonableness of its decision.

F irst, the court failed in its decisio n t o a cknowledg e Dr. Erman and D r. Guilleminault’s sleepwalking di a gn o sis a nd the objective evidence supporting it. I n s t e ad, the court focused out o f contex t on bits and pieces of Dr. Er m a n ’s testimony w hich the court r eg a rded a s diluting his diag nosis. I n so doing
, the court ig nored D r. Erman’s e x p l a n ation o f why these frag ments did not erode his diag nosis.

Second, th e c o u r t opined that the lay evidence of L iao’s sleepwalking o ffered during the trial by his relatives, plus Dr. Kushida’s belittled opinion, were sufficient to e s tablish L iao’s defense, making Dr. Erman’s evidence e ss entially unnecessary

. Equating lay testimony on a medical s u b j e ct with the testimony of two qualified doctors makes no sense. O n e doubts that there is a lawy er alive who, with d oc t o rsL I A O V

. J U N I O U S 28

a v a i lable to prove a medical condition, would u se l a y witnesses instead, es p ecially in a criminal trial where a defendant needs only a reasonable doubt to prevail. I ndeed, the prosecutor pointed out not o nly the weaknesses in L iao’s relatives’ testimonies, but that they were biased in his favor. She told the jury
, “These women have biases. B ut, y ou k now, what doesn’t have a bias is the evidence.” W e ag ree, the sleep study also w ould have had no bias. The Superior Court may have been impressed with the relatives’ testimonies o f sleepwalking
, but the prosecutor certainly was n ot. Neither was the jury

.
Third
, t he Superior Court inex plicably brushed off the penetrating effect of the a bsence o f a sleep study on Dr. Kushida ’ s t estimony
, referencing instead Dr. Kushida’s claim that a sleep study was optional. The court said, “The fact that Dr. Kushida w as ag g ressively cross-ex amin ed i s not a basis to g rant a second opportunity to pre s e n t its case but is something that happens in the search for truth.” L iao d oesn’t complain about a g g ressive cross-ex amination per se, b ut that h is counsel’s error made the cross-ex amination bruta l l y effective – a s Dr. Sharma’s rebuttal test imony undeniably demonstrates. W e note that without a study
, Dr. Kushida was left with o nly a

n opinion, not a diag nosis. Dr. Erman came forth with a diag nosis. Moreover, the Superior Court did not

even mention Dr. Guilleminault, identified as t h e leading

ex p ert in his field.

F ourth, t h e S u perior Court discredited the sleep study because it did not produce an episode of actual sleepwalking

on L iao’s part. The court said, “Obviously
, if the sleep study had n o t e d a full episode of sleepwalking
, there w ould b e no q u estion that the outcome probably would h ave b e e n different.” This comment and ex pectation ig nored what Dr.L I A O V

. J U N I O U S 29

Kushida said in his April 8, 2003 let t e r t o the court about what the study mig ht show: “Howeve r , it is very unlikely to capture an actual sleepwalking episode by poly somnog raphy . . . .”

Dr. Erman ag

reed with Dr Kushida.

(Dr. E rm an) [ W] e ty

pically don’t ex p ect to

see the full episodes o f arousal in patients with g o od histories of these arousal disorders when they ’ re in the lab. I t’s very o f ten as if part of the brain is functioning to – to keep an ey e out on what i s go ing o n in these new surrounding s. W hen y ou a dd into that the circumstance s o f someone who’s been inc arcerated w ho knows g uards are outside the room and who is shackled, the ex pectation would be that this w ould ligh t e n frag ment sleep; and we did see this, the sle e p efficiencies for the two studies we did were both in the low ra n ge a n d 60% rang e. W e would ordinarily

ex pect that to be in the hig h 80' s [ sic] to low 90' s [ sic]

.

T h e c o urt simply overlooked this evidence and improperly substituted its u nderstanding of the ex pected r esults of a sleep study for those of qualified doctors.

F ifth, in discussing the facts surrounding the e arly morning a ttack, the court h ig hlig hted only those that mig ht prove L iao was cons c i o us and aware of what h e was doing
, omitting those that did n o t

. F rom these selective facts, the court concluded that in comparison to the defense, the prosecutor’s case was strong

. W h at the court overlooked a ndL I A O V

. J U N I O U S 30

did not discuss were those c o ntemporaneous facts offered b y Henry C h e n a nd his mother that sug g ested L iao was not

aware of what he was doing

. As i n d i c ated in Part I of this opinion, those facts are:

1) At midnig ht, just four h o u r s before the a ttack, L i’s

sons Henry and Danny g ot into a fig ht. L iao helped L i separate them, and when L i started to punish them, L iao intervened on their behalf and asked her not to do so.

2) W ithin seconds of the attack, when Chen asked L iao what he was doing
, L iao d id not reply

. L iao a ppeared to be in shock.

Q. W h at do y ou mean b y that, he seemed to be shocked?

A. (Henry Chen ) L ike open his mouth a nd just looking at me.

Q. Sorry ? Open mouth, and what else?

A. (Henry

Chen) And staringat me.
3) W h en L i asked L iao immediately after the attack why he hit Chen, L iao repeatedly said, “W hy did I d o it? ” His a nswer was that he had a dream someone was hitting him and he was fig hting back.

4) I mmediately

after the attack, L iao assisted L i to tend to her son’s wounds.

Q. W h at was [ L iao] doing ?L I A O V

. J U N I O U S 31

A. ( L i ) Nothing

. W a lking back and forth. And also he was calling

911.

. . . . Q. W a s he helping y o u and y our s o n that evening ?

A. Yes.

Q. And how was he helping y ou and y our son?

A. He asked me to ex amine my son’s injury

a n d t o p ut something over the injury to stop the bleeding

. Q. Did h e s eem c oncerned a bout y our son and his injury ?

. . . .

A. Yes. He was tre mbling all over at seeing my son’s bleeding

. 5) L iao di d n o t flee, he called the police a nd accompanied L i and Chen to the hospital.

I n other words, Dr. Erman a n d Dr. Guilleminault’s diag nosis would not have ex isted in a v acuum, but would hav e served to ex plain and to interpret L iao’s behavior that was not consistent with try ing to murder L i’s son with premeditation.L I A O V

. J U N I O U S 32

VI

W e c onclude that the S u

p e r i o r C o u

r t’s fact-based decision th a t L iao suffered no prejudice from his counsel’s error was not just merely incorrect, b ut “objectively unreasona b le.” Lett
, 559 U.S. at 773; see also Richter
, 562 U.S. at 1 0 1

– 02. W h at is more, the Superior Court’s application of S trickland to the facts of this case was demonstrably unreaso n able a s that term h as been c onstrued in this c ontex t by t h e U n i t e d States Supreme Court.

According ly
, d eference to the state’s decisi o n is not applicable. Milke v. Ryan
, 711 F .3d 998, 1008 (9th Cir. 2013). Thus, we l o o k d e n o vo at this issue. F rom this perspective, we note t h at our p recedent recog n iz es that prejudice is established w hen, as L iao’s counsel a rg u es, “counsel’s error left the defense with weaknesse s that were
ex p loited by the prosecution.”

I n Brown v

. Myers
, 1 37 F .3d 1154 (9th Cir. 1998), for

ex a mple, counsel’s error was his f ailure to call available witnesses who could have corroborated his client ’ s alibi defense. W e said,

The district c o urt co n cluded that the alibi witne s ses would not have helped Melvin at trial because their testimo n y during the evidentiary

hearing was v ag u e with reg ard to time. Their testimon y , h owever, was consistent w i th Melvin’s account that he arrived at Saunders’ house too early to have participated in the shooting

. B ecause their testimony buttressed Melvin’s account on this crucial point, it creates a re asonableL I A O V

. J U N I O U S 33

probability t h a t the fact-finder would have entertained a reasonable doubt co ncerning g uilt. As it w as, without any c o r roborating witnesses, Me l v i n’s bare testimony left him without any

effective defense.

Id. at 1157–58 (citations omitted).

W e came to a similar conclusion in Lu n a v. Cambra
, 306 F .3d 954 amended in 3 11 F .3d 928 ( 9th Cir. 2002), another case involving a failure o f trial counsel to call known alibi witnesses to corroborate his client’s testimony

. Citing Brown
, w e determined that c ounse l ’s error prejudiced L u na because w ithout corroborating w itnesses, his “bare testimony left him without any effective defense.” Luna
, 306 F .3d at 961 (quoting Brown , 137 F .3d at 1158).

The validity of our p recedents a s they relate to this appeal finds support in a r ecent Supreme Court ca s e, Hinton v

. Alabama
, 134 S. Ct. 1081 (2014). T he Court sai d t h at a defendant could well be prejudiced by h i s attorney ’s failure to secure an ex

pert witness on a scientific issue if “there is a reasonable probability that

. . . [ the] ex pert

. . . would have instilled in the jury a reasonable d oubt as to [ his client’s] g u ilt

. . . .” Id. at 1089. The Court could easily have been talking about Dr. Erman.

The mag istrate judg e’s decisi o n was similarly flawed. The decision erroneously labeled Dr. Erman’s tes t i mony a s well as t he results of the sleep study “merely cumulative.” This label betray s a serious misunderst a n d ing of the difference between direct and corroborating evidence, on o ne hand, and evidence that u nnecessarily proves a p oint already sufficiently established, on the other. B lack’s L aw DictionaryL I A O V

. J U N I O U S 34

d e f i nes cumulative evidence as “[ a] dditional evidence tha t supports a fact established by the ex isting evidence (esp. that which does not need fu r t h er support).” Evidence, B lack’s L aw Dictionary (10th ed. 2 0 14). Corroborative evidence, on the o ther han d
, i s “[ e] vidence that differs from but streng thens or confirms w hat other evidence shows (esp. that which needs support).” Id. Articulating these definitions

ex p ose s t h e fatal error in deg r ading Dr. Erman’s and Dr. Guill e m inault’s input and the sleep study results to unnecessary

surplusag e.

The heart of L iao’s defense was lack of intent caused by

a sleep disorder. The Superior Court correctly articulated the importance of this issue, say ing

The e vidence in this case centered upon the issue of consciousness. I f Mr. L iao was, in fact, in an unconscious state, under the law, he would not b e r espons i b l e for his act. An unconsciousn e s s would preclude an ex press malice or the intent to kill. I t would preclude deliberation and p remeditation b e cause,
o b v i o usly
, o ne cannot formulate an intent t o kill or deliberate or p re meditated [ sic] in an unconscious state.

Counsel’s error le ft L i a o ’s defense weak and preg nable. I t would not have been so with the evidence the ju r y did not hear because of counsel’s mistake.

VII

L iao has served his time in prison an d i s currently on parole. I t is d ifficult to c o n ceive of circumstances un d erL I A O V

. J U N I O U S 35

w hich the State w ould a g ain take him before a j u ry

. Nevertheless, a s is our p ractice and a u thority
, we reverse the decision of the District Court and remand with instructions to g rant a conditional w ri t of habeas corpus ordering L iao’s release from all f

orms of custody u nless the State o f California elects within 90 day s o f t h e issuance of the mandate to retry h im. Any such retrial shall commence within a r e a sonable time thereafter to b e set by the District Court.

REVERSED AND REMANDED.