NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH KON, 

Petitioner-Appellant, 

 v. 

STUART SHERMAN, Warden, 

Respondent-Appellee.

No. 18-55401 

D.C. No. 

8:16-cv-00397-SVW-SK 

MEMORANDUM*

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.

FILED

DEC 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-55401 

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 grounds1and 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).
3 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.
4 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.

REVERSED and REMANDED for an evidentiary hearing.

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.