* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HAROLD E. HOLMES, JR., Petitioner - Appellant,

v. DAVID R. MCKUNE; ATTORNEY GENERAL OF KANSAS, Respondents - Appellees. No. 01-3004 D.C. No. 97-CV-3134-DES (D. Kansas)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and MURPHY , Circuit Judges.

This appeal arises from the district court’s denial of a habeas petition under 28 U.S.C. § 2254. Harold Eugene Holmes, the petiti oner and appellant in this case, was convicted by a Kansas trial court in 1979 of rape, aggravated battery, and aggravated kidnapping. Following his convictio n and a direct appeal, Holmes initiated two state post-conviction proceedings arg uing ineffective assistance of counsel, which were denied. Both denials were appe aled to the Kansas Court of1 We expanded the COA to include the issue of wheth er trial counsel was

also ineffective for failing to object to hearsay hypnosis testimony. This claim may be procedurally barred, as conceded by Holmes’s counsel in a supplemental brief. Because, as discussed below, we conclude th at Holmes’s trial counsel’s failure to call alibi witnesses constituted ineffec tive assistance of counsel and prejudiced Holmes’s trial, however, we do not reachthe issue of whether trial counsel was also ineffective for failing to object to the hearsay hypnosis testimony.

2 Holmes’ release on parole on December 31, 2001, d oes not divest us of jurisdiction or render this action moot. The restr ictions on Holmes as part of his probation—including restriction to a particular res idence, mandatory meetings with a parole officer and participation in counseli ng, a requirement that the parole officer approve any job, and the risk of return to jail should parole conditions be violated—constitute sufficient restrictions on Holm es’s liberty such that he is “in custody” for habeas jurisdictional purposes, and hi s case is not moot. See Jones v. Cunningham , 371 U.S. 236, 242–43 (1963); see also Jago v. Van Curen , 454 U.S. 14, 21 n.3 (1981); Olson v. Hart , 965 F.2d 940, 942–43 (10th Cir. 1992) (“Probationary status is sufficiently ‘in custody’ pursuant to section 2254 to permit habeas relief.”). - 2 - Appeals, but Holmes did not obtain any relief in st ate court. On April 15, 1997, Holmes filed a petition for a writ of habeas corpus in the federal district court, again arguing that his trial counsel was ineffectiv e. Holmes’s federal habeas petition was dismissed by the district court, but the district court granted a certificate of appeala bility (“COA”) as to the issue of whether Holmes’s trial counsel was ineffective for failing to investigate Holmes’s alibi defense and interview potential witnesses. 1 We have jurisdiction over Holmes’s appeal pursuant to 28 U.S.C. § 1291, 2 and we reverse and grant habeas relief.- 3 - I Because our analysis in this case will ultimately d epend on a review of the evidence presented at trial, we provide here a thor ough overview of the events leading up to Holmes’s trial, the trial itself, and Holmes’s first post-conviction hearing. See Avery v. Alabama , 308 U.S. 444, 447 (1940) (“[W]here denial of the constitutional right to assistance of counsel i s asserted, its peculiar sacredness demands that we scrupulously review the record.”).
A On August 21, 1978, shortly after 9:30 p.m., a woman was assaulted by two African-American men near Coronado Junior High Scho ol in Wyandotte County, Kansas. After a struggle, the two men dragged the victim away from her vehicle into a wooded area, where one of the men proceeded to rape her. Pretending to be unconscious, the victim lay still while the two men continued to assault her. When the men left, the victim fled to a nearby hous e. At 10:48 p.m., police responded to a call from the house where the victim was waiting. Interviewed by a police officer, the victim described the taller assailant as being “approximately 20 to 30 years ol d, approximately six foot in height, weighing somewhere between 160 to 170 pound s, with a normal medium size natural hairdo.” (6 R. at 55.) The victim de scribed the shorter assailant as “approximately 20 to 25 years of age, approximately five foot eight to five foot- 4 -

ten inches in height, approximately 150 pounds, wit h a bushy . . . hairdo.” (6 id. ) Asked about the clothing worn by the assailants, th e victim could not give any description. Either before or after her interview with the polic e, the victim, an art teacher, prepared an abstract drawing of one of the assailants. After making the drawing, she wrote some comments on the side pointi ng out the assailant’s features. In these comments, she described his ear s as close to his head, his cheek bones as prominent, high, and somewhat delicate, hi s mouth as rectangular and wide but “not overly prominent,” his nose as delicate and straight but not flat, flaring out at the base to become wide, his eyes as large and rectangular without prominent folds, his forehead as small, thin, and h igh, and his eyebrows as straight. (6 id. at 111–12.) When the victim spoke to a detective at the police station the day after the rape, she provided further details on the appearanc e of the two assailants. She told the police that she thought the first individu al was about five foot eleven, because he was slightly taller than she was and she is five foot nine. She described the other assailant as shorter than her, with a “sloppy big Afro” the top of which was no higher than her eyes. (6 id. at 188.) On August 29, 1978, eight days after the rape, the police showed the victim a series of six photographs. Among them were photo graphs of Holmes, another- 5 -

male named Larry Kelly, and a boy named Willie Trip lett. The photographs of Holmes and Kelly were large mug shots, while the other photographs were smaller, obtained from Coronado Junior High. Looki ng at these photographs, the victim told the detective that Kelly “looked like t he tall suspect who raped her” and Triplett looked “similar to” one of the assaila nts. (6 id. at 225–26.) At trial, no one testified that the victim positively identif ied the mug shot of Holmes on this date. On October 4, 1978, the victim went to the police s tation to view a lineup. Holmes was one of the men in the lineup, wearing a gray jumpsuit similar to the one he had worn in the photograph already shown to the victim. Of the men in the lineup, Holmes was the only one whose photograp h had been previously shown to the victim. He attempted to exit the room , calling the procedure a “frame-up.” (6 id. at 196.) The victim, who had been shown a mug sho t of Holmes several weeks before, observed the men in th e lineup. She indicated on the lineup form that she recognized Holmes. The police interviewed Holmes on October 6. Holmes told the police that, on the evening of August 21, 1978, he played frisbe e near his house with several boys: Jake Carmack, Jake’s cousin Danny, Jim and B obby Bailey, a boy named John, and possibly Rick Alexander and Neil Phelps. Holmes stated that he played frisbee from 8:30 or 9:00 p.m. to 10:00 or 10:30 p. m., at which point the boys- 6 -

pooled their money to purchase marijuana. After Bo bby Bailey returned with the marijuana, explained Holmes, the boys went into the woods north of Holmes’s house and built a campfire. Holmes told the police that Jake Carmack, Danny, an d Bobby Bailey went camping with him. The boys left the campsite twice , once to get cigarettes and once to get food. After the boys went to Holmes’s house to get some food, they encountered a policeman, who told them to make sure they put out the fire. Holmes could not recall the exact time they saw the policeman. Holmes told the police that he found out about the rape in the loca l newspaper the next day, and was glad he had an alibi. Holmes stated that he di d not go to Coronado Junior High School, the site of the rape, at any point that evening. Holmes also denied going to Frank Harvey’s house or seeing Harvey, Ric ky Miller or Willie Triplett at any point during the evening of August 21. In the fall of 1978, Holmes shot and killed Miller, and Holmes was charged with voluntary manslaughter in conjunction with Mil ler’s death. A judge appointed Dave Boal, an attorney, to represent Holm es in conjunction with the manslaughter charge. While the manslaughter charge was still pending, Holmes was also charged with the rape, assault, and kidnap ping at Coronado Junior High, and he retained Boal to represent him in the rape c harge as well. At the time of3 A police detective testified that the victim had remembered the names

“Gene” and “Jerry” under hypnosis. (6 R. at 192.) Boal did not object to this (continued...) - 7 - his trial for rape, Holmes was eighteen years old a nd had a ninth-grade education. He had never before been involved in or attended a trial. Boal filed a notice of alibi in the rape case, and Holmes provided him with a list of several potential witnesses who were play ing frisbee with him on the evening of August 21. Boal, however, did not speakwith any of these potential witnesses, apparently relying on Holmes to bring th em to his office. Boal read the police statements of three of Holmes’s suggeste d alibi witnesses, and became “somewhat disenamored with the quality of his alibi defense.” (5 id. at 24–25.)
B At trial, the victim identified Holmes as the man w ho raped her. Comparing a photograph of Holmes to the comments sh e wrote next to her drawing of the primary assailant, the victim testif ied that her description matched the photograph. According to the victim, Holmes was the taller of t he two assailants. Although the victim referred to her pr imary assailant as “Mr. Holmes” throughout her testimony, the victim admitted that she had learned that name only after the incident. The victim testified that she had been hypnotized in an effort to recall her assailants’ names, but could not reca ll what name the smaller man had called the other assailant. 3 On cross-examination, the victim testified that i t3 (...continued)

hearsay testimony. Holmes’s middle name was Eugene , a fact pointed out by the prosecutor. - 8 - was dark at the time of the rape, although there wa s some artificial light and she could see. In order to corroborate the victim’s identification of Holmes, the State called Willie Triplett, a sixteen-year old boy and the cousin of Ricky Miller. Triplett said that he saw Holmes on the evening of August 21. Triplett testified that he arrived home at around 9:30 or 10:00 and ha d a phone conversation with Holmes, after which Holmes arrived at Triplett’s ho use and talked to him about the rape. According to Triplett, Holmes took a sho wer or bath “to get the blood off him.” (6 id. at 266.) Triplett testified that Holmes talked to him for about half an hour, until 10:45. Triplett claimed that, during this conversation, Ho lmes confessed to the Coronado Junior High rape in the presence of Triple tt and Miller. A week later, Triplett claimed, Holmes confessed again in the pre sence of Triplett and another boy named Frank Harvey. On cross-examination, Trip lett testifed that his cousin Miller had been about six foot two, while Holmes wa s five foot nine or five foot eight. Although he claimed not to be aware that th e victim had identified him as looking like one of the assailants, Triplett admitt ed to having heard that the victim “was picking out a lot of people.” (6 id. at 272–73.)- 9 -

In addition to Triplett, the State called a fifteen -year-old boy named Frank Harvey. Harvey denied having seen Holmes on the ni ght of August 21, but testified that he later asked Miller if it was “tru e that they did it, and he said yeah.” (6 id. at 278–79.) Harvey further claimed that he “kind of knew that [Holmes] was with [Miller]” during the attack becau se it “was being said.” (6 id. at 279.) On cross-examination, Harvey said he did not know who had told him that Holmes was involved in the rape. Nevertheless , the State called another witness, a police detective, who testified that Harvey had told him that Holmes had told Triplett that “they had committed the crim e.” (6 id. at 285.) Boal knew that Holmes had been in a long-standing f eud with Triplett and that Holmes had killed Triplett’s cousin. Neverthe less, Boal introduced no evidence concerning the circumstances of Miller’s d eath, because Boal feared it might prejudice the jury to know that Holmes was ch arged with manslaughter. A criminalist called by the State testified that bo th Holmes and the victim were secretors with type A blood, and that seminal fluid obtained after the rape was also from a person who was a type A secretor. This information allowed her to conclude that Holmes “could not be eliminated” a s the person who raped the victim. (6 id. at 149.) No testimony was introduced as to the pr oportion of African-American males who have type A blood.- 10 -

Conceding that Holmes had camped in the woods on Au gust 21, the State called three of the boys with whom Holmes had campe d. The State’s theory was that Holmes went camping with these boys afterhe had participated in the attack, in an attempt to create an alibi. Robert “Bobby” Bailey testified that he was with Ho lmes on August 21 and that they went camping in the woods near their home s at about ten o’clock. He said that the police came by at around eleven o’clo ck to check out a neighbor’s complaint about the campfire, and that he had been with Holmes “at least a couple hours” before then. (6 id. at 237.) To impeach his testimony, the prosecutor showed Bobby Bailey his police statement, in which he said that he had been with Holmes “about an hour” before the police arrived. (6 id. at 238–39.) On crossexamination, Boal elicited testimony that, accordin g to Bobby Bailey’s police statement, they had collected money for marijuana at about fifteen minutes until ten, that Holmes had been with him about fifteen mi nutes prior to that time, and that Bobby was sure that it was before ten when he first saw Holmes. This account suggested that Holmes could not have committed the rape shortly after 9:30, although Bobby Bailey’s confusion over how lo ng he had been with Holmes prior to the arrival of the police rendered his tes timony less credible. Next, James “Jim” Bailey testified that he, too, wa s with Holmes on August 21. He stated that they played frisbee before goin g to the woods, that he stayed in- 11 -

the woods about a half-hour and then left to go hom e for food, and that he saw the rest of the boys again playing frisbee after the po lice left. Jim Bailey did not testify that he smoked marijuana, and he explained that he was not present when the police came about the fire. Showing Jim Bailey his prior police statement, the prosecutor called attention to the fact that he had not previously told the detective that the group had also played frisbee before going to the woods. On crossexamination, Boal elicited testimony showing that t he detective had never asked Jim Bailey what time it was when he first saw Holme s. Jim Bailey’s testimony corroborated Holmes’s statement that he played fris bee before going camping. Because Jim Bailey did not testify as to the exact time he first saw Holmes, however, his testimony did not prove that Holmes co uld not have committed the
rape. James “Jake” Carmack testified that he also played frisbee with Holmes, Bobby and Jim Bailey, and Neil Phelps on August 21, and that they subsequently went camping in the woods. This account matched Ho lmes’s story. Carmack stated that, although he did not know exactly what time it was when he first saw Holmes, “the streetlights were about to come on, ki nd of a pink color, when I saw him walking up.” (6 id. at 248.) He also testified that the streetlights start coming on about twenty minutes before dark, suggest ing that he saw Holmes before the rape, which occurred shortly after 9:30.- 12 -

Carmack was then asked to read aloud his prior poli ce statement in which he estimated that the police talked with them aboutthe campfire at about 10:00 or 10:30 p.m. Carmack testified that he had been with Holmes “about two hours” prior to that time. (6 id. at 250.) This testimony was impeached with his pri or statement that he had been with Holmes “about an ho ur and a half” prior to the police visit. (6 id. at 251.) On cross-examination, Carmack explained that they played frisbee in front of John Viens’s house and that Carmack then asked Holmes if he wanted to go camping with him and some of the other boys. Carmack stated that they broke up logs for a fire, built the fire, and had returned to Viens’s house when the police arrived to tell th em not to leave the fire. Bobby Bailey and Jake Carmack, therefore, estimated that the police responded to the campfire sometime between ten and eleven o’clock. These estimates were demonstrated to be incorrect when th e State introduced a dispatch card showing that the police responded to a call ab out the campfire a minute before midnight. Holmes’s alibi defense thus depen ded on the testimony of two boys called by the State whose time estimates contr adicted the dispatch card. Boal called no alibi witnesses. Holmes was the onl y defense witness. Holmes essentially testified to the same facts give n in his prior police statement, adding that he went to his house and got permissionbefore camping with the boys. He also testified that a neighbor had become distur bed over the noise the- 13 -

boys were making as they were breaking up logs to b uild their campfire. He denied being with Triplett on August 21 and denied being present at any later conversation in which Harvey asked anyone about the rape. Holmes further testified that he wore his hair fairly short in Aug ust 1978 and never wore a sloppy Afro. On cross-examination, Holmes testified that Triplett and Harvey were lying or mistaken when they testified about conversations concerning the rape. The prosecutor asked Holmes about alleged discrepancies between his story and the testimony of Bobby and Jim Bailey and Jake Carmack. Boal did not offer any redirect, nor did he call any witnesses to corrobor ate Holmes’s testimony. In his closing argument, the prosecutor focused on the victim’s identification of Holmes as the taller assailant an d her drawing and description of the assailant. Asserting that the “only documented time,” other than the victim’s testimony, was on the police dispatch card, and not ing that the boys who testified Holmes went camping with them smoked marijuana thatnight (6 id. at 329), the prosecutor claimed that Holmes had “set up an alibi ,” but “the time differentials . . . are not there” (6 id. at 347). After the closing arguments, the jury deliberated f or two hours and then requested to hear Triplett’s testimony again. The next day, the jury deliberated for a little over two more hours before finding Hol mes guilty of all charges.- 14 - C On June 3, 1983, the state court held a post-convic tion hearing on Holmes’s claim of ineffective assistance of counsel. Boal w as called as the first witness, but did not recall much about Holmes’s case. Boal testified that he did not telephone or interview any of the alibi witnesses p rior to filing the notice of alibi defense or prior to trial, nor did he subpoena any of them for trial. His stated reasons for not doing so were twofold. First, Boal said that he relied on Holmes to bring the witnesses to his offi ce and that Holmes failed to do so. Second, he claimed that he had “no way of know ing whether or not the police interviewed witnesses beyond [the three boys the St ate called at trial],” and, after reading the three statements of these three boys, h e became “somewhat disenamored with the quality of [Holmes’s] alibi de fense.” (5 id . at 21–22, 24–25.) Boal said he “didn’t bother recalling” the three witnesses after the State rested because Holmes had told him that the three w itnesses would verify his alibi, but they had failed to do so at trial. (5 i d. at 22.) Boal had no other explanation for having failed to investigate and in terview witnesses not called by the State who could have testified about Holmes’s a ctivities on the night of the
rape. Boal stated that he could not remember the content of conversations with the defendant’s mother, Mrs. Holmes, could not reme mber whether he listed her4 According to the state, the defense did list Mrs. Holmes as an alibi

witness.

5 Counsel cautioned Mrs. Holmes not to reveal the s pecific details of her knowledge. - 15 - as an alibi witness, 4 and could not remember the defendant Holmes saying that he wanted her to testify on his behalf. Later, he rec anted and testified that his recollection was (“and this may not be accurate”) t hat he, Mrs. Holmes, and the defendant Holmes discussed calling her and determin ed that she would not be a witness. (5 id. at 18.) He could not remember, however, on what t hey had based that determination. Holmes’s mother also testified at the post-convicti on hearing. Mrs. Holmes asserted that Boal had told her that she might be n eeded as a witness and had her wait in the hall or at work during most of the tria l. She said that Boal never contacted her to testify about where Harold was the evening of the rape or told her why she was not needed as a witness. Mrs. Holm es testified that she knew where her son was from about 8:00 until 10:00 p.m. that night because she was “keeping an eye on him,” looking outside “every so often.” (5 id. at 50–51.) She stated that her son asked permission to “go somepla ce” at around 10:00 p.m. 5 (5 id. at 52.) Holmes was called as the next witness. He testifie d that, the day Boal was appointed as counsel for the rape case, he told Boa l that he did not commit the6 The court did not believe this testimony at the p ost-conviction hearing. - 16 - crime and gave him the names of the young men he wa s with on the evening of the rape. Holmes further testified that he had exp lained to Boal that Willie Triplett had been in a long-standing, violent feud with Holmes and that Holmes had shot and killed Triplett’s cousin Ricky Miller. Holmes explained that he had beaten up Triplett and that Triplett had threatened him with a shotgun. The State did not recall Boal to dispute any of this testimony. Holmes stated that, a month before the trial, he we nt to Boal’s office with a list of witness names and addresses, but Boal was n ot there. Holmes left the list with Boal’s secretary. According to Holmes, when i t became clear that Boal was not going to call any of his alibi witnesses, Boal told him that it was unnecessary because “[t]he State didn’t have a case” and “there was no way they could convict me on that.” 6 (5 id. at 64.) Neil Phelps White, also referred to as Neil Phelps, was the last witness at the hearing. He testified that on August 21 Holmes was playing frisbee with him, his brother Scott Phelps, Jake and Danny Carmack, and John Viens “about all afternoon” up until “around 10:00, 10:30.” (5 id. at 97.) Neil Phelps was never contacted by Boal to testify at the 1979 trial. He testified that he and several other boys had given statements to the police, but the State did not attempt to- 17 -

impeach his testimony with his prior police stateme nt, suggesting that the statement was consistent with his testimony at the post-conviction hearing. After hearing the evidence, the judge asked Holmes’ s counsel if he agreed that “an attorney has a right to rely upon his clie nt to do some of the leg work in getting witnesses in to talk to you before trial.” (5 id. at 114.) The court admonished Holmes for not having brought the witnes ses to Boal’s office prior to trial, stating, “It is somewhat difficult . . . in our community, for a white lawyer to go into a black community and try to find witnesses without some assistance.” (5 id. at 129.) When Holmes’s counsel told the court that it was a “white” community, and that Holmes’s was the only black fam ily, the court stated, “I just feel that Holmes had some obligation to assist in t his matter.” (5 id. ) The court then found that the three witnesses at trial did no t “materially assist the defendant in his alibi defense,” and that, after Boal read th eir statements, he may have determined that other witnesses “likewise would notassist the defendant and perhaps would even be detrimental to his defense.” (5 id. ) The state trial court denied post-conviction relief , and the Kansas Court of Appeals affirmed on appeal. Nine years later, Holm es brought another state postconviction proceeding, challenging hypnosis testimo ny introduced at trial and arguing that the judge in the first post-conviction proceeding was racially prejudiced. This second post-conviction proceeding was also unsuccessful, and- 18 -

the Kansas Court of Appeals refused to reconsider the issue of ineffective assistance of counsel. Finally, Holmes brought a p etition for habeas corpus in the federal district court, which was denied and is the subject of this appeal.
II Because Holmes filed his petition in federal court on April 15, 1997, the provisions of the Antiterrorism and Effective DeathPenalty Act of 1996 (“AEDPA”) govern this appeal. See Paxton v. Ward , 199 F.3d 1197, 1204 (10th Cir. 1999) (stating that AEDPA applies to habeas pe titions filed after April 24, 1996, regardless of the date of the criminal trial forming the basis of the conviction). Our standard of review depends on whe ther a particular claim was decided on the merits in state court. With regard to any claim that was “adjudicated on the merits in State court proceedin gs,” the writ of habeas corpus will not be granted unless the adjudication of thatclaim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supre me Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. 28 U.S.C. § 2254(d). In Williams v. Taylor , 529 U.S. 362 (2000), the Supreme Court commented on the meaning of § 2254(d)(1). With regard to the first clause of § 2254(d)(1), a- 19 -

state-court decision is “contrary to” the law estab lished by the Supreme Court if (1) “the state court applies a rule that contradict s the governing law set forth in [the Court’s] cases” or (2) “the state court confro nts a set of facts that are materially indistinguishable from a decision of [th e] Court and nevertheless arrives at a result different from [the Court’s] pr ecedent.” Id. at 405–06 (opinion of O’Connor, J.) (speaking for a majority of the Co urt). A state-court decision is an “unreasonable application” of Supreme Court prec edent if (1) “the state court identifies the correct governing legal rule from [t he] Court’s cases but unreasonably applies it to the facts of the particu lar state prisoner’s case,” or (2) “the state court either unreasonably extends a lega l principle from our precedent to a new context where it should not apply or unrea sonably refuses to extend that principle to a new context where it should apply.” Id. at 407. It is not sufficient if the state-court decision applied clearly establi shed law erroneously or incorrectly: “that application must also be unreaso nable.” Id. at 411. However, the petitioner need not show that “all reasonable j urists” would disagree with the state court’s decision. Id. at 409–10. Factual issues decided by the state courts are pres umed to be correct, and Holmes bears “the burden of rebutting the presumpti on of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). If a claim was not addressed by a state court, there is no adjudication of that claim, and we review the federal7Where there is no evidence that a state court did not address a particular

claim, we owe deference to the state court’s result . Aycox v. Lytle , 196 F.3d 1174, 1177 (10th Cir. 1999). If there is evidence that a particular claim was altogether not considered by the state court, howev er, we do not defer to the state court’s result with respect to that claim. See Duckett v. Mullin , 306 F.3d 982, 990–91 n.1 (10th Cir. 2002) (stating that, where th ere is “ample evidence” that the state court failed to consider a particular cla im altogether, “there is no result to which we can defer”). - 20 - district court’s legal determinations de novo and its factual findings for clear
error. See Romano v. Gibson , 278 F.3d 1145, 1150 (10th Cir. 2002). 7“Where the district court’s factual findings are based sol ely upon a review of the state court record, however, they are subject to this cou rt’s independent review.” Tyler v. Nelson , 163 F.3d 1222, 1226–27 (10th Cir. 1999). In this case, the federal district court did not hold an evidentiary hearing, basing its factual findings only on a review of the state court record. Thus, the f acts relied on by the district court are subject to our independent review.
A Holmes urges that his ineffective assistance of cou nsel claim should be evaluated according to the criteria enunciated by t he Court in Strickland v. Washington , 466 U.S. 668 (1984). Stricklandis also cited by the government, and its two-prong test was relied upon by the distr ict court. As was pointed out at oral argument by counsel for the government, howeve r, Stricklandwas decided by the Supreme Court four days afterMay 10, 1984, when the Kansas Court of- 21 -

Appeals decided Holmes’s appeal of his first post-c onviction proceeding. Thus, Stricklandwas not “clearly established federal law” when the Kansas Court of Appeals issued its first decision in Holmes’s case. Holmes did file a subsequent post-conviction proceeding, which was decided on ap peal by the Kansas Court of Appeals in 1993. This subsequent appellate decisio n, however, did not “reach[] the merits” of Holmes’s ineffective-assistance-of-c ounsel claim, reasoning that it had already been decided on the merits. Holmes v. State , No. 68,710, slip op. at 6 (Kan. Ct. App. July 30, 1993). As such, in analyzi ng the ruling of the Kansas Court of Appeals with respect to Holmes’s ineffecti ve-assistance-of-counsel claim, we must look to the federal law as establish ed by the Supreme Court prior to Strickland . Only if the 1984 decision of the Kansas Court of Appeals was “contrary to” or “an unreasonable application of” S upreme Court law as it existed prior to Stricklandmay we grant Holmes habeas relief. Long before Strickland , the Supreme Court recognized that the right to counsel is the right to effective assistance of cou nsel. See, e.g. , Cuyler v. Sullivan , 446 U.S. 335, 344 (1980) (“[T]he Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conducting trials at whichpersons who face incarceration must defend themselves without adequate legal assistance.”); McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970) (“It has long been- 22 -

recognized that the right to counsel is the right t o effective assistance of counsel.”). Moreover, the Court held that the righ t to effective assistance of counsel imposed upon the attorney the duty to condu ct an adequate investigation of the facts. See Powell v. Alabama , 287 U.S. 45, 58 (1932). When the Kansas Court of Appeals decided Holmes’s 1984 appeal, ther efore, it was “clearly established” Supreme Court law that the Sixth Amend ment guaranteed criminal defendants effective assistance of counsel, and that an attorney’s failure to investigate the facts constituted a violation of th is constitutional guarantee. Although the Supreme Court had made it clear long b efore Stricklandthat effective assistance of counsel was constitutionall y guaranteed in criminal cases, lower federal courts differed on the appropriate te st to determine whether a Sixth Amendment violation had occurred. A few years befo re Stricklandwas decided, three circuit courts still held that “the represent ation of a defendant will be deemed adequate as a matter of constitutional law u nless it was such as to make a mockery, a sham or a farce of the trial.” Maryland v. Marzullo , 435 U.S. 1011, 1011 (1978) (White, J., dissenting from the denial of certiorari) (quotation omitted) (citing cases from the First, Second, and Tenth Circuits). Other circuits employed a different articulation of the standard, requiring that defense counsel render “reasonably competent assistance.” Id. (quotation omitted) (citing cases from the D.C., Fifth, and Eighth Circuits).8 We will not speculate as to other possible tests that might have been

invented by a maverick state court before Stricklan d , because any test that set a higher threshold than the “mockery of justice” stan dard would not have been a reasonable application of Supreme Court precedent. As discussed below, we hold that the “mockery of justice” test was satisfied he re. - 23 - By the end of 1983, all the circuits had adopted th e “reasonably competent assistance” articulation of the standard. See Trapnell v. United States , 725 F.2d 149, 152–55 (2d Cir. 1983) (stating that “[t]he Sec ond Circuit is now the only circuit court that has . . . not embraced the ‘reas onably competent assistance’ standard,” and proceeding to adopt that articulatio n of the standard). Because the “reasonably competent assistance” standard was deve loped in the circuit courts, however, it was not “clearly established” by the Supreme Court until 1984, although the Court “indirectly” recognized the stan dard in McMann . See Strickland , 466 U.S. at 687. Even so, it was clearly established by the Supreme Court that effective assistance of counsel was required, and a state co urt could only have reasonably applied Supreme Court precedent before Stricklandby adopting one of the two prevailing interpretations or an equivalent test. 8 A defendant whose counsel bothmade a “mockery of justice” andfailed to render “reasonably competent assistance” would have receiv ed ineffective assistance under anyreasonable application of Supreme Court law. More over, when the two standards were compared in Strickland , the Supreme Court acknowledged that the divergent standards were applied identically in pra ctice. 466 U.S. at 696.- 24 -

We hold that, under either the “mockery of justice” standard or the “reasonably competent assistance” standard, Boal’s complete failure to interview and call any alibi witnesses constituted ineffectiv e assistance of counsel. Boal expected Holmes to bring the witnesses to his offic e, when the preparation of the defense was clearly his obligation. See Wainwright v. Sykes , 433 U.S. 72, 93 (1977) (“Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney.”) (Burger, C.J., concurring). H olmes’s entire defense rested on his alibi, and Boal made no effort to contact the w itnesses on Holmes’s list even by telephone. Defense counsel must always investig ate an alibi defense. See Powell , 287 U.S. at 58. If for no other reason, an inves tigation may reveal that the alibi defense is fabricated, in which case the attorney must withdraw from representation. Williams v. Florida , 399 U.S. 78, 105–06 (1970) (Burger, C.J., concurring) (discussing defense counsel’s obligatio ns when an alibi defense is discovered to be “contrived and fabricated”). Inst ead, Boal relied on police statements taken down for the purpose of inculpatin g Holmes, essentially delegating to the State his duties as defense couns el. Such delegation is impermissible. Boal’s conduct clearly falls short of what can be e xpected of a reasonably competent attorney. This was essentially the view of the federal district court, which stated that “[i]t may be assumed that it is u nreasonable for defense counsel9 Although the district court did not explicitly fi nd that Boal’s performance

was deficient, the court did state that “[o]n the r ecord currently before the court, it cannot be found that counsel made a reasonable d ecision that further investigation of Holmes’ alibi defense was unnecess ary.” Holmes v. McKune , 117 F. Supp. 2d. at 1111. The court ultimately rej ected Holmes’s ineffective assistance of counsel claim for failure to show pre judice. Id . at 1113. As discussed below, we conclude that Boal’s failure to interview and call alibi witnesses was indeed prejudicial. - 25 - not to attempt to contact alibi witnesses to ascert ain whether their testimony would aid the defense.” Holmes v. McKune , 117 F. Supp. 2d. 1096, 1109 (D. Kan. 2000). 9 Furthermore, given that Holmes’s alibi was the co rnerstone of his case, Boal’s failure to investigate Holmes’s alibi defense rendered the trial a mockery of justice. Holmes’s only defense was aban doned by his own attorney, leaving nothing but Holmes’s testimony to counter the State’s case against Holmes. Under any reasonable application of pre-StricklandSupreme Court law, therefore, Boal fell short of the standard required by the Sixth Amendment.
B In order to conclude that the Kansas Court of Appea ls unreasonably applied Supreme Court law, however, we must further examine whether Boal’s failure to call alibi witnesses prejudiced the defense. The i ssue of prejudice was not addressed by the Kansas state courts; consequently, there is no adjudication of that issue, and we review de novo the district court’s determination that there was10 In reaching its conclusion that Boal’s failure to call alibi witnesses did

not prejudice the defense, the district court viewe d the evidence “in the light most favorable to the State.” Holmes v. McKune , 117 F. Supp. 2d. at 1112. Viewing the evidence in a “light most favorable to the Stat e” is our standard for insufficiency-of-the-evidence claims, see, e.g. , Romano , 278 F.3d at 1154, and no such claim is at issue in the instant case. When w e review a claim that the evidence is insufficient, we are reevaluating evide nce that was already considered by the jury, and thus the government should be give n the benefit of the doubt. In such a case, given that the jury had the challenged evidence before it, we start from the presumption that the verdict was correct. By contrast, there is no reason to view evidence not presented at trial —such as the testimony of Mrs. Holmes and Neil Phelps—in the light most favorable to the gove rnment, because this evidence was never assessed by the jury and played no role i n the jury’s decision. Accordingly, the district court erred to the extentthat it evaluated evidence not presented at trial in the light most favorable to t he government. - 26 - no prejudice. 10
Under Strickland , in order for counsel’s performance to constitute ineffective assistance of counsel, counsel’s defici encies must have prejudiced the defense. 466 U.S. at 692. Prejudice was a require d component of ineffective assistance of counsel even before Strickland . In 1981, discussing prior cases on effective assistance of counsel, the Court stated t hat the “premise of our prior cases is that the constitutional infringement ident ified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense.” United State s v. Morrison , 449 U.S. 361, 365 (1981). Without a prejudicial impact on a crim inal proceeding, the Court held, “there is no basis for imposing a remedy.” I d. Thus, the 1984 ruling of the Kansas Court of Appeals can only be deemed an unrea sonable application of- 27 -

Supreme Court law if the failings of Holmes’s trial counsel prejudiced his defense. Although we are applying pre-Stricklandstandards, the prejudice requirement of Stricklandadded nothing new to the law as it stood at the ti me of Holmes’s first state collateral appeal. See Morrison , 449 U.S. at 365 (discussing the pre-Stricklandprejudice requirement); cf. Strickland , 466 U.S. at 697 (explaining that “only in the rarest case” would th e Stricklandtest alter the merit of an ineffectiveness claim). Other circuits, appl ying the Strickland standard on habeas review, have found that a failure to call ke y alibi witnesses was prejudicial to the defense. In Washington v. Smith , 219 F.3d 620 (7th Cir. 2000), the Seventh Circuit found prejudice when defense counse l failed to call three alibi witnesses who could have added “a great deal of sub stance and credibility” to the defendant’s alibi. Id. at 634–35. The court reached this result even tho ugh the defense did call two other individuals as alibi wit nesses. Id. at 625. In Luna v. Cambra , 306 F.3d 954, 961–62 (9th Cir. 2002), the Ninth C ircuit held that a failure to call the defendant’s mother and sister a s alibi witnesses was prejudicial, despite their family ties to the defendant. As discussed above, at his state post-conviction he aring, Holmes called four witnesses: Boal, Holmes’s mother, Holmes hims elf, and Neil Phelps. Holmes’s mother and Neil Phelps, neither of whom wa s called to testify at11 As the district court notes, Phelps’s assertion that he played frisbee with

Holmes “about all afternoon,” taken literally, seem s to conflict with Holmes’s (continued...) - 28 - Holmes’s trial, explained at the post-conviction he aring that they would have corroborated Holmes’s alibi. The testimony of Mrs. Holmes and Neil Phelps differed significantly from that of the boys called by the prosecution at trial, insofar as Mrs. Holmes and Neil Phelps testified on ly as to Holmes’s whereabouts before and during the time that the rape occurred. Noting that she was readily available to testify ather son’s trial, but was not called, Mrs. Holmes explained at the post-convi ction hearing that she knew where her son was until ten o’clock on the night of the rape because she “was keeping an eye on him.” (5 R. at 50.) Mrs. Holmes regularly looked out the window to check on her son from approximately sevenor eight o’clock to ten o’clock at night. Around ten o’clock, Holmes askedhis mother permission to “go someplace.” (5 id. at 52.) This testimony meant that Holmes could not have committed the rape shortly after 9:30. Had Mrs. Ho lmes been allowed to give this testimony at trial, it would therefore have corrobo rated her son’s alibi to the extent the jury believed her. Neil Phelps, a neighbor of Holmes, testified that h e played Frisbee with Holmes and several other boys “about all afternoon” on the day of the rape, until “around 10:00, 10:30.” 11 (5 id. at 97.) Phelps claimed that, to the best of his11 (...continued)

account of his activities on the afternoon the rape occurred. Holmes v. McKune , 117 F. Supp. 2d at 1113. It is probable, however, that Phelps simply meant “evening” rather than “afternoon.” A frisbee game that began in the afternoon and lasted until ten o’clock at night would have be en a very long frisbee game indeed. In any event, the importance of Phelps’s t estimony lies in his estimation of the time he last saw Holmes, not the length of t ime he was with Holmes prior to the time the rape occurred. - 29 - recollection, Holmes was with him the entire time h e was playing Frisbee. Phelps then “went to ask [his] mom,” presumably for permis sion to go camping with the other boys. (5 id. ) Phelps did not testify about what happened on t he night of the rape after he played frisbee with Holmes. Some time after the rape, Phelps gave a statement at the courthouse, but Boal never contacted him. Because Phelps claimed Holmes was with him until 10:00 or 1 0:30, his testimony implied that Holmes could not have committed the rape short ly after 9:30. Phelps’s testimony and that of Mrs. Holmes, if beli eved by the jury, would thus have corroborated Holmes’s alibi without refer ence to the arrival of the police at the campfire. Because Mrs. Holmes was th e petitioner’s mother, her testimony might have been discounted somewhat by th e jury. Phelps, however, was not a relative of Holmes, and his testimony wou ld have been less subject to attack by the prosecution. Unlike Bobby Bailey and Jake Carmack, Phelps did no t testify that he smoked marijuana on the night of the rape, and his memory of how long he spent12 Jim Bailey did not testify that he smoked marijua na with the other boys.

Jim Bailey, however, did not recall what time it wa s when he first saw Holmes or when he left the group, explaining that he did not wear a watch. His testimony, therefore, did not help Holmes establish an alibi, unlike that of Neil Phelps. - 30 - playing frisbee with Holmes was not impaired by anyeffects of the drug. During his closing argument, the prosecutor called attenti on to the fact that the boys who went camping with Holmes had been smoking marijuana , the prosecutor’s implication being that this might have affected the ir memory. 12 If Phelps had testified at trial as he did at the post-conviction hearing, the defense could have pointed to a witness who had a clear recollection o f the time he last saw Holmes and whose recollection was not affected by drug use

. Furthermore, no evidence was introduced at the post -conviction hearing suggesting that Phelps’s testimony contradicted his prior police statement. If the State could have impeached Phelps by pointing to in consistent statements given to the police, they would have done so at the post-con viction hearing. At trial, the prosecutor was able to discount the testimony of th e boys who testified as to Holmes’s whereabouts by referring to their police s tatements and reckoning back from the time the police arrived at the campsite. Because the police arrived after midnight, and two of the boys said in their police statements that Holmes had been with them “a bout an hour” or “an hour and a half” before the police arrived (6 id. at 239, 251), the prosecutor was able13 Two of the boys, Jim Bailey and Jake Carmack, did not testify as to the

exact time they stopped playing frisbee, and thus t heir testimony cannot conflict with that of Phelps. The other boy, Bobby Bailey, stated that the boys took up a collection to purchase marijuana at about fifteen m inutes to ten, which fits with Phelps’s testimony that he was with Holmes until ab out 10:00 or 10:30. - 31 - to assert that Holmes was with the boys only since about 10:30 or 10:15, after the rape occurred. This meant that the testimony of th e two boys did not prove that Holmes was with them at the time of the rape. Phel ps, by contrast, testified that he was with Holmes until about 10:00 or 10:30. Thu s, Phelps’s testimony did not contradict that of the three boys who testified at trial, 13 and Phelps established where Holmes was during the crucial hour from nine to ten o’clock. Phelps’s testimony, therefore, would have considerably strengthened Holmes’s case. In response to the prosecutor’s imp eachment of the three other boys who testified, Boal could have pointed to one witness (1) whose perception of time was unaffected by marijuana, and (2) who co uld vouch for Holmes’s whereabouts at the time of the rape without referen ce to the later arrival of the police at the campsite. Had Phelps testified, the defense could have respon ded more effectively to a statement by the prosecutor during closing argume nt that “[t]he time differentials involved are not there” for Holmes’s alibi (6 id. at 347). Likewise, the prosecution’s assertion that the “only document ed time,” other than the victim’s testimony, was on the police dispatch card (6 id. at 329) would have14 Although this point was made in Strickland , it applies equally well to

our pre-Stricklandanalysis. We “scrupulously review the record” in cases involving the constitutional right to counsel. Ave ry , 308 U.S. at 447 (1940). - 32 - carried less weight in the face of an unimpeachable recollection by Phelps. Phelps’s testimony would have been the cornerstone of Holmes’s alibi defense, had he been called to testify at trial. Instead, t he only alibi witnesses called were

state witnesses, and Boal had not spoken with any of the m prior to the trial. As discussed above, other circuits have held that afailure to call key alibi witnesses can be prejudicial even if the defense di dcall some alibi witnesses (as in Washington ) or the witnesses notcalled had family ties to the defendant (as in
Luna ). In the present case, only one witness had famil y ties to the defendant—Mrs. Holmes—and the three witnesses who d id testify to Holmes’s alibi were called by the state, not by the defense. Thus, the present case presents an even stronger case for prejudice than Washingtonor Luna

. In making a prejudice determination, the strength o r weakness of the State’s case is relevant. “[A] verdict or conclusi on only weakly supported by the record is more likely to have been affected by erro rs than one with overwhelming record support.” Strickland , 466 U.S. at 696. 14 If the State had made a stronger case against Holmes at trial, Boal’s failure to cal l Phelps as a witness might have been less prejudicial. The State’s case, however, was weak.- 33 -

First, the victim’s identification of Holmes was suspect. Factors to be considered in determining the reliability of a witn ess’s identification of a defendant include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accura cy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers , 409 U.S. 188, 199–200 (1972). Here, the victim’s only opportunity to view her assailants was under poor l ighting conditions. With regard to accuracy, the victim’s description of Hol mes as the taller of the two assailants conflicted with Willie Triplett’s testim ony that Miller was the other assailant, because Miller was taller than Holmes. Holmes also did not match her description of the shorter assailant with a sloppy Afro; uncontroverted evidence showed that Holmes wore his hair short in August of 1978. Moreover, several weeks elapsed between the rape and the victim’s fir st positive identification of Holmes, after she had already passed over his mug s hot in a photographic array. Accordingly, three of the factors that the Supreme Court has enunciated suggest that the victim’s testimony is unreliable. Only th e level of certainty demonstrated by the victim at trial weighs strongly in favor of giving credence to her identification of Holmes.- 34 -

Second, the other witnesses who testified that Holm es was involved in the rape were far from credible. Willie Triplett, who testified that Holmes confessed the rape to him, had conflicted motives: the victi m had identified Triplett’s photograph out of the array as appearing similar to one of the assailants. Triplett’s testimony not only inculpated Holmes—it exculpated himself. Frank Harvey’s testimony that Holmes was involved in the attack was based on a questionable inference from an alleged statement of the late Ricky Miller. On cross examination, Harvey said that he did not knowwho had told him Holmes was involved. Harvey’s testimony was unreliable he arsay. Apart from this questionable testimony, the State’s physical evidence established only that Holmes “could not be eliminat ed” as the perpetrator. (6 id. at 149.) Holmes and the assailant both had type A blood, but no indication was made as to what percentage of African-Americans hav e that blood type. Cf. United States v. Kearney , 420 F.2d 170, 171 (D.C. Cir. 1969) (noting that “ [t]ype A blood appears to be typical of about 35% of the A merican Negro population”). Seen in context, this evidence has little persuasiv e value. On balance, the State’s case against Holmes hung ona slender thread of unreliable and contradictory evidence. In the face of a case so weakly supported, Neil Phelps’s testimony would have considerably bol stered the defense. Mrs. Holmes’s testimony, taken in conjunction with that of Phelps, might also have15 Boal also failed to interview or call several oth er potential alibi

witnesses listed by Holmes—John Viens, Dan Carmack, Scott Phelps, and Mrs. Blacksher—who did not testify either at trial or atthe post-conviction hearing. Because we hold that the failure to call Mrs. Holme s and Neil Phelps was prejudicial, we need not consider whether Boal also prejudiced Holmes’s defense by not calling these other witnesses. - 35 - tilted the scales in favor of acquittal. Boal’s fa ilure to call anyalibi witnesses, relying only on the witnesses called by the State, is much more likely to have affected the trial when the weakness of the State’s case is taken into account. Reviewing the record de novo, therefore, we conclud e that Boal’s failure to interview and call Phelps and Mrs. Holmes was preju dicial to Holmes’s defense. 15 Because the decision of the Kansas Court of Appeals could not have been justified by a finding of no prejudice, their concl usion that Holmes received effective assistance of counsel was an “unreasonabl e application” of “clearly established Federal law, as determined by the Supre me Court of the United States.” 28 U.S.C. § 2254(d)(1). A writ of habeas corpus should have been issued by the district court.- 36 - III The judgment of the district court is REVERSED , and the case is
REMANDED with instructions to issue a writ of habeas corpus

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge