NOT FOR PUBLICATION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 APPEALS2 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 defere nce 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 grounds 1 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, 119 5

- 9 6 (2018) ; Ylst v. Nunnemaker , 501 U.S. 797, 803

- 04 (1991). B ecause 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 t hree

1 The Warden did not raise a procedural default defense before either the district court or this court. A t oral argument , counsel advised that this was a deliberate, tactical decision. A s a result , any procedural default defense ha s been waived

. See Wood v. Milyard , 566 U.S. 463, 47 2

- 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 cust odial 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, 48 4

- 8 5 (1981) , the key issue in this case is Kon’s first alleged request. And here , Kon consistently alleged in his state and federal habeas petition s
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 th is 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 becau se 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 eff ect 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 th is call w ere 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 subs tantial 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 custodi al 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 impeac h him but rather used them as substantive evidence of hi s guilt.