Yun Liao v. Maurice Junious

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YUN HSENG LIAO, No. 14-55897

Petitioner-Appellant,

D.C. No.

v. 2:10-cv-05691-JGB-JCG

MAURICE JUNIOUS,

Respondent-Appellee. ORDER AND

OPINION

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted

October 23, 2015—Pasadena, California

Filed April 1, 2016

Before: Harry Pregerson and Stephen S. Trott, Circuit

Judges and William H. Stafford,* Senior District Judge.

Order;

Opinion by Judge Trott

*

The Honorable William H. Stafford, Jr., Senior District Judge for the

U.S. District Court for the Northern District of Florida, sitting by

designation.

2 LIAO V. JUNIOUS

SUMMARY**

Habeas Corpus

The panel (1) withdrew its opinion filed January 29, 2016;

(2) filed a new opinion reversing the district court’s denial of

California state prisoner Yun Hseng Liao’s habeas corpus

petition challenging his conviction for assaulting and

attempting with premeditation to kill his ex-girlfriend’s

teenage son, and remanding; and (3) dismissed as moot the

warden’s petition for rehearing en banc.

Liao’s unsuccessful defense was that the incident

happened while he was in a state of unconsciousness during

an episode of sleepwalking, and thus, that he lacked the intent

required for the crimes with which he was charged.

During further proceedings on Liao’s ineffective

assistance claim after newly discovered evidence revealed a

significant lapse on trial counsel’s part, the Superior Court

concluded that trial counsel’s performance had been

constitutionally defective by failing to secure medical

evidence to support Liao’s primary expert’s sleepwalking

opinion, but that counsel’s failure had not been prejudicial.

The panel concluded (1) that the Superior Court’s

decision that Liao suffered no prejudice was based on an

unreasonable determination of the facts and was objectively

unreasonable in its application of clearly established Federal

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LIAO V. JUNIOUS 3

constitutional law; and (2) that his conviction was an extreme

malfunction of justice.

COUNSEL

Dennis A. Fischer (argued) and John M. Bishop, Law office

of Dennis A. Fischer, Santa Monica, California, for

Petitioner-Appellant.

Ryan M. Smith (argued), Deputy Attorney General, Kamala

D. Harris, Attorney General of California, Gerald A. Engler,

Chief Assistant Attorney General, Lance E. Winters, Senior

Assistant Attorney General, and Kenneth C. Bryne,

Supervising Deputy Attorney General, Los Angeles,

California, for Respondent-Appellee.

ORDER

The Opinion filed January 29, 2016, is withdrawn. It may

not be cited as precedent by or to this court or any district

court of the Ninth Circuit.

The attached Opinion is filed simultaneously with this

Order.

Appellee Junious’s pending petition for rehearing en banc

is dismissed as moot.

SO ORDERED.

4 LIAO V. JUNIOUS

OPINION

TROTT, Senior Circuit Judge:

On June 16, 2003, a jury in the Superior Court of Los

Angeles County, California convicted appellant Yun Liao of

assaulting and attempting with premeditation to kill Henry

Chen, his ex-girlfriend Li’s teenage son. Liao admittedly hit

Chen three times on the head with a hammer at 4:00 a.m

while Chen was asleep. Liao’s unsuccessful defense was that

the incident happened while he was in a state of

unconsciousness during an episode of sleepwalking, and thus,

that he lacked the intent required for the crimes with which he

was charged. The court sentenced him to life in prison with

the possibility of parole, plus four years. Twelve years later,

he has served his time and is out of prison on parole.

Liao’s appeal as well as his pursuit of state habeas corpus

relief failed, but because of newly discovered evidence

revealing a significant lapse on his trial counsel’s part, the

California Court of Appeal returned his case to the Superior

Court for further proceedings on his claim of ineffectiveness

of counsel. The Court of Appeal ordered the California

Department of Corrections and Rehabilitation to show cause

why Liao’s conviction should not be set aside. After a

hearing, the Superior Court concluded in a decision spoken

from the bench that trial counsel’s performance had indeed

been constitutionally defective by failing to secure medical

evidence to support his primary expert’s sleepwalking

opinion – a conclusion with which the prosecution agreed.

The Superior Court found, however, that counsel’s failure had

not been prejudicial.

LIAO V. JUNIOUS 5

After unsuccessful attempts in state court to overturn the

Superior Court’s decision, Liao filed a petition for a writ of

habeas corpus in the Central District of California, alleging a

violation of his Sixth Amendment right to effective assistance

of counsel. In an order accepting the report and

recommendation of a magistrate judge agreeing with the

Superior Court, the district court denied Liao’s petition. He

appeals.

We have jurisdiction over this timely appeal pursuant to

28 U.S.C. §§ 1291 and 2253. Because we conclude (1) that

the Superior Court’s decision was based on an unreasonable

determination of the facts and objectively unreasonable in its

application of clearly established Federal constitutional law,

and (2) that his conviction was an extreme malfunction of

justice, we reverse.

I

Facts1

At about 4:00 a.m. on August 4, 2002, Henry Chen was

awakened by the sensation of three blows on his head. They

were inflicted by a household hammer, which Chen had left

on the floor of his room. He covered his head with his hands,

and in the dark sought his assailant, whom he pushed to the

ground. Chen then saw that it was Liao, and he asked Liao

what he was doing. Liao did not reply. Chen ran into his

mother Li’s room, passing his younger brother Danny, and

telling her Liao had hit him. She covered his head, and asked

1

We borrow these facts without attribution from the California Court of

Appeal’s unpublished decision. People v. Yun Hseng Liao, Second

Appellate District, No. B170596.

6 LIAO V. JUNIOUS

Liao to call the police. He stated he would go to jail, but after

several requests, he made the call. Li asked Liao why he hit

Chen. After repeatedly saying, “Why did I do it?” Liao

replied that he had been dreaming someone was hitting him,

and he had fought back.

As Chen walked outside to meet arriving paramedics,

Liao told him to say he had fallen down the stairs, because

otherwise he would go to jail.

Chen suffered three scalp lacerations, each over an inch

long, which were closed by staples, as well as a cut to his ear.

He also suffered a concussion, and both of his hands were

fractured. He remained at the hospital for about six hours.

The attending physician opined that Chen had received a

series of glancing but direct blows to the head. There was no

skull or brain damage. At the time of trial, Chen still

experienced headaches and dizziness, as well as some pain in

his hands.

Chen had known Liao for five years, during which time

Liao had been Li’s boyfriend, and had lived with her and her

sons for four years. In that time, Liao had never previously

struck Chen, although, according [to] Chen, he had hit Danny

once, and Li twice (out of Chen’s presence). Liao had shown

no animosity toward Chen, who believed Liao had attacked

him out of anger at Li.

On the night of the incident, Chen testified that Liao and

Li had had an argument in her room. Li then stopped a fight

between the brothers, and Liao told Chen not to make Li

angry. Before Chen went to bed around midnight, he saw

Liao, smoking a cigarette and staring out the sliding window

by the balcony. Chen testified that Liao smoked when he was

LIAO V. JUNIOUS 7

“stressed.” Danny went to sleep on the living room couch.

When awakened by the blows, Chen, who had been sleeping

face down, threw Liao off, and then saw him. Liao seemed

shocked, and stared at Chen, mouth open. Liao was holding

the hammer, raised, while leaning against a wall about seven

feet from Chen. Chen then asked Liao what he was doing,

and received no reply.

Danny had gone to sleep about 9:00 p.m. He was

awakened by the sound of three blows, like a hammer striking

a nail. He saw his brother bleeding profusely. Li asked Liao

to call the police. The first time he refused, saying that if he

went to jail this time it would cost him a lot of money to get

out. After a second request he did call, and he accompanied

Li to the hospital.

II

A.

Counsel’s Error

In preparation for Liao’s trial, his counsel hired Dr. Clete

Kushida, a Director of the Stanford University Center for

Human Research and a board certified physician at Stanford’s

Sleep Disorders Clinic. Dr. Kushida is also on the academic

faculty of the Stanford School of Medicine. After reviewing

the facts and circumstances of Liao’s unusual pre-dawn

behavior, Dr. Kushida recommended that Liao undergo a

medical examination and a “sleep study,” formally known as

polysomnogram.

Dr. Kushida put his recommendations in a letter dated

April 8, 2003. In the letter, Dr. Kushida said that “further

8 LIAO V. JUNIOUS

evaluation of Mr. Liao is warranted, with a consideration of

a sleepwalking diagnosis.” The inquiry would include “[a]n

evaluation conducted by a sleep specialist. This would entail

a review of Mr. Liao’s medical history and a physical

evaluation.” Dr. Kushida also recommended “[a]n overnight

polysomnogram (sleep study) conducted by an experienced

polysomnographic technologist, and reviewed by a sleep

specialist . . . an important component of the evaluation of an

individual with a diagnosis of sleepwalking.”

Because Liao was in custody, counsel filed a request with

the Superior Court for authorization to conduct the

procedures recommended by Dr. Kushida. On April 10,

2003, a court commissioner – not the trial judge – denied the

motion without prejudice. On April 25, 2003 counsel

promptly renewed his motion, supplementing it with a second

letter from Dr. Kushida dated April 22, 2003, reiterating the

necessity of a sleep study. We will discuss the content of this

second letter in more detail in part I B. of this opinion. The

commissioner took the matter under submission. When

counsel’s associate later called the court to inquire about the

status of the request, a court clerk erroneously told him that

the motion had been denied when in fact it had been granted

on May 1, 2003. On the commissioner’s Order, he wrote, “1.

To be completed prior to trial date – 2. Not to exceed $2500,”

followed by his signature. The approving Order, prepared by

counsel and signed by the court commissioner, lay

undiscovered in the court’s file until Liao’s conviction was on

appeal.

Instead of conducting any further inquiry into the status

of his motion, counsel proceeded to trial without the benefit

of the medical examination and study for which Dr. Kushida

LIAO V. JUNIOUS 9

had asked. During the trial, the absence of a sleep study

turned out to be the Achilles heel of Liao’s defense.

At all stages of the proceedings, California has conceded

that counsel’s failure to verify what the court clerk told his

associate over the phone amounted to constitutionally

ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984).

B.

The Effect at Liao’s Trial

of the Absence of a Sleep Study

The heart of Liao’s defense was lack of intent caused by

a sleep disorder. The Superior Court correctly articulated the

importance of this issue, saying,

The evidence in this case centered upon

the issue of consciousness. If Mr. Liao was,

in fact, in an unconscious state, under the law,

he would not be responsible for his act. An

unconsciousness would preclude an express

malice or the intent to kill. It would preclude

deliberation and premeditation because,

obviously, one cannot formulate an intent to

kill or deliberate or premeditated [sic] in an

unconscious state.

To establish Liao’s sleepwalking / lack of criminal intent

defense, counsel called Dr. Kushida as an expert witness.

When Dr. Kushida took the stand however, he did not have

any of the material referenced in his letter to rely on or to

support his opinion. He testified that because he did not have

10 LIAO V. JUNIOUS

what he had asked for, a sleep study and physical

examination, he could not diagnose Liao as a sleepwalker,

only render an opinion that he suffered from that condition.

The absence of this information enabled the prosecutor on

cross-examination to discredit Dr. Kushida’s testimony and

to render his opinion suspect. The prosecutor’s first question

was whether Dr. Kushida had interviewed the defendant. His

answer was no. The second question was whether he had

“conducted any sleep studies of the defendant,” to which Dr.

Kushida gave the same negative answer. The third question

was a statement: “So your opinion is based on – well,

obviously your opinion is not based on anything that the

defendant has told you or anything that you have observed in

studying his sleep patterns, correct?” Answer, “That is

correct.”

Over and over the prosecutor returned to the absence of

a sleep study and physical examination to support Dr.

Kushida’s testimony—an absence caused by counsel’s error.

On re-cross, she effectively bludgeoned Dr. Kushida with his

second pre-trial letter submitted to the court commissioner in

support of counsel’s motion, using his own words

recommending an examination and a sleep study.

Q: The Prosecutor A: Dr. Kushida

Q Doctor, directing your attention to your

letter to Mr. Donoghue, or his associate, dated

April the 22nd. I think you have a copy in

your hand?

A Yes, I do.

LIAO V. JUNIOUS 11

Q Do you state in that letter that

sleepwalking is suspected in Mr. Liao’s case

because of the following?

A Yes, I do.

Q Okay. Do you also state in that letter that

the above points raise clinical suspicion that

Mr. Liao’s behavior during the episode in

question is compatible with sleepwalking?

A Yes.

Q Okay. Do you also say in that letter that

further evaluation is warranted?

A Yes.

Q Do you continue to explain, specifically

on page 2 of your letter that an overnight

polysonogram [sic], a sleep study, is

warranted to further evaluate Mr. Liao’s

preliminary sleepwalking diagnosis?

A Yes.

Q And then do you give the rationale for a

sleep study in Mr. Liao’s case?

A Yes, I do.

Q And there are three different rationales,

correct?

12 LIAO V. JUNIOUS

A Yes.

Q You also state that it’s – a sleep study is

an objective test that is used to assess patients

with sleep disorders, correct?

A Yes, I do.

Q And the last sentence you say that in the

case of Mr. Liao the sleep study is an

important component in his evaluation for a

diagnosis of sleepwalking, correct?

A That is correct.

....

Q During my cross-examination did you say

that – did you testify that you could not

conclude that the defendant was a

sleepwalker, just that he may be a

sleepwalker?

A What I said was I could not make an

official diagnosis because official diagnosis

depends on actually clinically examining the

patient.

Q But you said that it was your opinion that

he may be a sleepwalker?

A Yes.

LIAO V. JUNIOUS 13

Q Okay. But – and it was also your opinion

that you needed to do a sleep study because it

was important to the diagnosis of him being a

sleepwalker, correct?

A At that time, yes.

....

Q Well, then why did you want to do a sleep

study as you stated in you letter and as I

thought you stated this morning?

A To rule out other potential causes that –

the main reason is that there are things that

can mimic sleepwalking and that is nocturnal

seizures or epilepsy. That’s the first point.

And that can really be confused with

sleepwalking and that’s easily treated by

putting the person on anticonvulsants. That’s

the first point.

The second point is looking at markers on

the sleep study because there are some

elements on the sleep study that you can find

that are non specific markers, you know, that

indicate that the person might have

sleepwalking. The third reason is to rule out

other sleep disorders such as sleep apnea or

periodic limb movements that can fragment

the sleep and trigger off a sleepwalking

episode. So that’s the reason. It’s more to

look at the etiology of the condition, the cause

of the condition.

14 LIAO V. JUNIOUS

....

Q And now you are saying that your opinion

is that he is a sleepwalker, correct?

A Correct.

Q That indicates to me that there has been a

change in opinion since you have been on the

witness stand from this morning.

A I would have to go back, look at exactly

what I said. But it’s my opinion that he is a

sleepwalker. At that time maybe perhaps I

was thinking about the actual diagnosis. And

just to reiterate, to actually make a diagnosis,

I would have to actually evaluate the patient.

If you were to ask me what my opinion is, my

opinion is he is a sleepwalker.

....

The Court: Doctor, tell us the difference

between your opinion and a medical

diagnosis.

The Witness: Yes. For medical diagnosis I

would actually have to see the patient, and,

you know, lay hands on the patient, physically

examine the patient. In terms of an opinion,

it’s based on material that I acquired about the

patient to actually make my opinion regarding

diagnosis. But I can’t actually say the word I

diagnose this patient as having a condition

LIAO V. JUNIOUS 15

without actually talking with the patient. But

to clarify, you know, based on the material

that I have received, you know, it is my

opinion that he is a sleepwalker. It’s just that

I can’t actually say I diagnosed the patient as

being a sleepwalker because I haven’t actually

physically evaluated the patient.

C.

Rebuttal

In rebuttal to Dr. Kushida’s vulnerable opinion testimony,

the prosecution called Dr. Kaushal Sharma, a physician board

certified in psychiatry. Dr. Sharma’s expertise was in

applying “knowledge and information about a suspected

sleepwalker to the forensic issue.” He admitted he had “not

run any sleep lab, therefore I would not call myself

exclusively an expert in the field of sleepwalking.” The

prosecution used Dr. Sharma to counter Dr. Kushida’s

opinion. She did, using the absence of a sleep study as her

weapon.

Q: Prosecutor A: Dr. Sharma

A I was given the task of looking over the

documents you described and helping,

initially, understanding a little bit more about

the sleep disorders including sleepwalking.

And I was given the task of looking at the

report or letters of two of my professional

colleagues and seeing if medically what they

had described based on the information they

had and whatever else they may have done

16 LIAO V. JUNIOUS

was the diagnosis consistent with the

information they had, and to tell you if I

agreed, in what aspect, and if I did not, in

what aspect.

Q And did – in that process have you also

formed your own opinion with regard to the

defendant’s mental status?

A Yes.

Q Let me just directly jump into whether or

not you believe the defendant is a sleepwalker

or has sleep disorders.

A Sleep disorders range from having

difficulty falling asleep. He may have that

problem in the jail. I don’t know for a fact.

But specifically about sleepwalking I believe

the information given to me is insufficient to

prove that he suffers from sleepwalking

disorder.

Q And any information – well, why is that?

A Any confirm ed di agnosis of

somnambulism, s-o-m-n-a-b-u-l-i-s-m [sic],

which is just the fancy term for sleepwalking,

requires that the person be subjected to sleep

lab tests where electrodes are placed on the

person’s brain and the brain’s activity, as well

as the activity of the eyes, because they move

at a rapid pace in certain phases of the sleep,

is detected. And then it’s seen if the person is

LIAO V. JUNIOUS 17

doing activity which is inconsistent with the

normal average sleep.

To the best of my knowledge the

defendant in this case was not given any such

sleep lab test. So that’s the one problem I

have and therefore I believe that there is

insufficient data.

On cross-examination, Dr. Sharma stuck to his guns.

Q: Defense Attorney A: Dr. Sharma

Q Now your opinion there is insufficient

information to determine a diagnosis whether

or not the defendant suffered from

sleepwalking. Is – what about as to an

opinion, a medical opinion as compared to a

medical diagnosis, is there a difference?

A Well, diagnosis – well, in many ways they

are. In the context, they are the same.

Diagnosis is an opinion.

Q Then are all opinions diagnoses?

A No, they are not.

Q So there is a difference?

A Yes.

18 LIAO V. JUNIOUS

Q So it’s possible for a doctor to reach – to

form an opinion without yet having a

diagnosis, is that correct?

A Sure. A doctor may have opinion that

there is no diagnosis.

Q Is it your opinion that a – it’s your

opinion, I believe you testified, that a

diagnosis requires that the person be subjected

to a sleep lab test, correct?

A In this context, yes.

D.

Jury Argument

Having set up her summation with the precision of a

surgeon, the prosecutor belittled and mocked Dr. Kushida’s

testimony when she addressed the jurors in final argument.

(Prosecutor) Dr. Kushida’s opinion, we have

three different things with Dr. Kushida. I

couldn’t believe the way he testified on the

stand, frankly, ladies and gentlemen. He says

that in his letters to the defense attorney

sleepwalking is suspected, you know, et

cetera, et cetera. This raises a clinical

suspicion. But the sleep study is very

important. The sleep study is very important.

Then when he comes to the stand and he

testifies in court he starts out and he says,

LIAO V. JUNIOUS 19

yeah, the defendant may be a sleepwalker.

But I mean [sic] need to do the sleep study in

order to diagnose him or in order to say that

he is a sleepwalker. This happened in direct

examination, in my cross-examination. But

when we come to the defendant’s or the

defense attorney’s redirect examination, what

does he say, he changes his testimony, right

here in front of us, in front our eyes. He says

the defendant is a sleepwalker. Oh, yeah,

with medical certainty. That means a doctor’s

guarantee, a stamp of medical approval. How

can you tell me that’s not a diagnosis. He

says with medical certainty. And sleep study

is not required contrary to what he said. Then

– and then let’s look – so, you know, these are

the doctors the defense is putting up and

asking you to be convinced. That’s

unreasonable, ladies and gentlemen. These

doctors have changed their testimony.

With regard to Dr. Sharma’s opinion, Dr.

Sharma is the only consistent doctor. His

duty was to review Dr. Kushida’s’s [sic]

opinions and letters, review Dr. Vicary’s

opinions and letters and his findings in that 8-

page report, review the preliminary hearing

transcript, the police reports, the evidence, so

on so forth, and tell us whether or not he

thought – whether or not he agreed with them.

And that was a major risk on my part because

he could have agreed with him. But you

know what, it defies these two doctors, defies

common sense. And Dr. Sharma told us that.

20 LIAO V. JUNIOUS

He said there is insufficient evidence that the

defendant is a sleepwalker. He was very – I

think very professional about that. He could

have said, you know, there is no evidence that

the defendant is a sleepwalker or I don’t think

the defendant is a sleepwalker for X, Y, and Z

reasons. But he tells us there is insufficient

evidence. Why? Because there was no sleep

study that was done, which is important.

(Emphasis added.)

III

The Sleep Study

On remand, the parties litigated in the Superior Court the

effect of Liao’s trial counsel’s failure to secure an

examination of his client and a sleep study. Before the

evidentiary hearing, Liao finally received his sleep study,

conducted in two phases by Dr. Milton Erman, a

distinguished fellow of both the American Psychiatric

Association and the American Academy of Sleep Medicine.

Dr. Erman completed his psychiatric residency in Boston at

Massachusetts General Hospital and a four-year fellowship at

Harvard Medical School before going on to practice his

specialty. In arriving at his diagnosis regarding Liao, Dr.

Erman consulted an expert from Stanford, Dr. Guilleminault.

Dr. Guilleminault is a world-renowned specialist in sleep

disorders who has created a proprietary computer scoring

technique called “power spectral analysis” which analyzes

objective data obtained from a patient during sleep studies.

LIAO V. JUNIOUS 21

Based on the objective and subjective data collected

during this detailed process, the doctors diagnosed Liao as a

somnambulist, or a sleepwalker. They supported their

collective opinion with their findings of sleep apnea, low

sleep efficiency, stress and turmoil leading up to the event,

E.E.G. results, a sleep hypnogram, significant nocturnal

oxygen desaturations, and abrupt arousals from sleep caused

by a lack of oxygen, all information Dr. Kushida did not

have. Arousals from sleep result when the brain realizes that

a person is not breathing. Sleep apnea arousals can produce

sleepwalking. Dr. Erman’s explanation was as follows:

But let me clarify one of the things I am not

sure we actually stated very clearly and that is

the relationship between sleep apnea and the

capacity to provoke arousal events that may

lead to an episode of sleepwalking.

When someone is experiencing a sleep

apnea event, they are suffocating. The airway

is closed off. The oxygen level is falling. The

levels of carbon dioxide in the body are rising,

and it is a stressor that typically will lead to

something very much like a classic fight-or-

flight response. So when the body recognizes

the body and brain recognizes this event is

going on after amorphizing a little bit, but the

event is ended by an arousal. If we don’t

arouse, we die. And that’s why people who

are on sedative medications or alcohol may

die from sleep apnea. This arousal is very

much akin to somebody poking with a stick.

This is the analogy I often use for patients

which explains why people with sleep apnea

22 LIAO V. JUNIOUS

are so tired because awakening repetitively

during the night.

The sleep apnea event can be a trigger in

susceptible individuals for these episodes of

sleepwalking. So the relevancy here as well is

that not only would it contribute to the sleep

deprivation that would increase the risk of the

apnea – of the sleepwalking event, it could

also serve as the specific trigger that would

cause the sleepwalking event.

Dr. Erman also testified that Liao’s behavior on the night

of the assault was consistent with not having been a “focused

assault that leads to injuries that might have been expected

had there been an intent to really seriously injure or kill, that

there was amnesia and confusion following the episode.”

Dr. Erman was appropriately skeptical of Liao’s

description of the events. To ensure that Liao was not

manufacturing a self-serving version of what happened on the

night in question, Dr. Erman gave him an occasion to do so,

but Liao stuck to his story:

(Dr. Erman) I actually gave him the

opportunity to embellish on the story because

to satisfy myself that this was an accurate

history that would be consistent with a non-

rem arousal disorder, I wanted to see whether

given the opportunity to embellish the report

to provide with more detail were there

monsters, were there dragons; and he didn’t

provide that, which to me was consistent with

the history and also consistent with his giving

LIAO V. JUNIOUS 23

the truthful account and not really providing

me with more gory details even when I gave

him the opportunity and suggested perhaps

those might have been present.

IV

Standard of Review

Although we review de novo a district court’s decision to

grant or to deny a 28 U.S.C. § 2254 habeas petition, our

review of a state court decision is quite deferential. In this

respect, we accept and assiduously apply the Warden’s

statement of our demanding standard of review.

As amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)

constitutes a “threshold restriction,” Renico v. Lett, 559 U.S.

766, 773 n.1 (2010), on federal habeas corpus relief as to state

prisoners that “bars relitigation of any claim ‘adjudicated on

the merits’ in state court” unless the claim meets one of the

statute’s two exceptions. Harrington v. Richter, 562 U.S. 86,

98 (2011). Under those exceptions, relief may be available if

the state court decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” or

(2) “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

Id. (quoting 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)

(“When a state court’s adjudication of a claim is dependent

24 LIAO V. JUNIOUS

on an antecedent unreasonable application of federal law, the

requirement set forth in § 2254(d)(1) is satisfied. A federal

court must then resolve the claim without the deference

AEDPA otherwise requires.”); see also Howard v. Clark,

608 F.3d 563, 571–72 (9th Cir. 2010); Frantz 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 rule that contradicts the governing law” as set

forth in Supreme Court opinions, or reaches a different

decision from a Supreme Court opinion when confronted with

materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 405–06 (2000). A state court engages in an

“unreasonable application” of federal law if it identifies the

correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies it to the facts of the

prisoner’s case. Id. at 413.

The inquiry under 28 U.S.C. § 2254(d)(1) is sharply

circumscribed. First, “clearly established federal law” is

limited to Supreme Court authority that “squarely addresses”

the claim at issue and provides a “clear answer.” Wright v.

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

Smith, 135 S. Ct. 1, 5–6 (2014) (per curiam) (grant of habeas

relief reversed where court relied heavily on circuit decisions

and the Supreme Court had failed to address the specific

question presented by that case); Marshall v. Rodgers, 133 S.

Ct. 1446, 1450–51 (2013) (federal habeas court may “look to

circuit precedent to ascertain whether [a federal appellate

court] has already held that the particular point in issue is

clearly established by Supreme Court precedent,” but may not

use lower court authority “to refine or sharpen a general

principle of Supreme Court jurisprudence into a specific legal

rule” or “to determine whether a particular rule of law is so

LIAO V. JUNIOUS 25

widely accepted among the Federal Circuits that it would, if

presented to [the Supreme] Court, be accepted as correct”);

Premo v. Moore, 562 U.S. 115, 127–28 (2011); Knowles v.

Mirzayance, 556 U.S. 111, 121–22 (2009); Carey v.

Musladin, 549 U.S. 70, 77 (2006). And, in light of the record

before the state court and the clearly established Supreme

Court precedent, the state court decision must have been

“objectively unreasonable,” and not merely incorrect in the

view of the federal court. Lett, 559 U.S. at 773; Richter,

562 U.S. at 101–02; see also Felkner v. Jackson, 562 U.S.

594, 597–98 (2011) (per curiam). “[E]ven a strong case for

relief does not mean the state court’s contrary conclusion was

unreasonable.” Richter, 562 U.S. at 102.

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

. . . because it was meant to be.” Id.; see also Burt v. Titlow,

134 S. Ct. 10, 15–16 (2013) (“Recognizing the duty and

ability of our state-court colleagues to adjudicate claims of

constitutional wrong, AEDPA erects a formidable barrier to

federal habeas relief for prisoners whose claims have been

adjudicated in state court.”). It “reflects the view that habeas

corpus is a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error

correction through appeal.” Richter, 562 U.S. at 102–03. To

that end, it precludes review of any claims previously rejected

on their merits by a state court except in the narrow category

of cases “where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with

[the Supreme] Court’s precedents.” Id. at 102. Accordingly,

to overcome the bar of § 2254(d), a petitioner is required to

show at the threshold that “the state court’s ruling on the

claim being presented in federal court was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

26 LIAO V. JUNIOUS

fairminded disagreement.” Id. at 103; see also Titlow, 134 S.

Ct. at 16 (“We will not lightly conclude that a State’s

criminal justice system has experienced the ‘extreme

malfunction’ for which federal habeas relief is the remedy.”)

(quoting Richter, 562 U.S. at 102) (alteration omitted);

Johnson v. Williams, 133 S. Ct. 1088, 1091, 1094 (2013)

(standard of § 2254(d) is “difficult to meet” and “sharply

limits the circumstances in which a federal court may issue a

writ of habeas corpus to a state prisoner whose claim was

‘adjudicated on the merits in State court proceedings’”)

(quoting 28 U.S.C. § 2254(d)).

Moreover,

[i]n a proceeding instituted by an application

for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State

court, a determination of a factual issue made

by a State court shall be presumed to be

correct. The applicant shall have the burden

of rebutting the presumption of correctness by

clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

As for whether or not Liao suffered prejudice because of

counsel’s error, our first task therefore is to determine

whether the Superior Court’s application of the prejudice

prong of Strickland as measured under § 2254(d) “was so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.” Richter, 562 U.S. 86 at 103.

Specifically, does the Superior Court’s conclusion that there

was not a reasonable probability that the missing evidence

LIAO V. JUNIOUS 27

would have resulted in a different result in Liao’s trial survive

this rigorous test?

V

Analysis

We begin our evaluation with the State’s admission

during oral argument of the obvious: Liao was unmistakably

prejudiced during his trial by the absence of both a sleep

study and the additional information sought by Dr. Kushida.

Counsel for the Warden agreed (1) that Dr. Kushida was

“clobbered” on cross-examination, (2) that “his credibility

was pretty much destroyed,” and (3) that Liao thereby

suffered prejudice during the trial in connection with the core

of his defense. We quote Deputy Attorney General Ryan

Smith’s answers to our questions.

Judge Pregerson: [Dr. Kushida’s] credibility

was pretty much destroyed

by the cross examination.

Mr. Smith: Yes, sir. . . .

Judge Trott: She [the prosecutor] used the

absence [of a sleep study] to

clobber the expert witness [Dr.

Kushida] . . .

Mr. Smith: Correct.

Judge Trott: Clobbered him.

28 LIAO V. JUNIOUS

Mr. Smith: Correct. The point would be

that still that the evidence of a

sleep study, which is what we

are looking at here, whether

the absence of that prejudiced

the petitioner in this case.

Judge Trott: It did in the trial.

Mr. Smith: It did in the trial because it

was absent then, but now

looking back [it did not].

Judge Trott: If we look at the trial it did

prejudice Liao.

Mr. Smith: Correct, but now that we know

what it is, it would not have

helped him.

Dr. Sharma’s rebuttal and the prosecutor’s summation prove

the incontestable validity of counsel’s concession regarding

the immediate effect of counsel’s error on the trial. What was

the fatal flaw according to Dr. Sharma? The lack of a sleep

study.

Then, the prosecutor vouched for Dr. Sharma’s testimony

in her summation to the jury, saying,

[Dr. Sharma] was very – I think he was very

professional about that. He could have said,

you know, there is no evidence that the

defendant is a sleepwalker or I don’t think the

defendant is a sleepwalker for X, Y, and Z

LIAO V. JUNIOUS 29

reasons. But he tells us there is insufficient

evidence. Why? Because there was no sleep

study that was done.

(Emphasis added.)

Why was there insufficient evidence to support Dr. Kushida’s

opinion and therefore Liao’s defense? Because of counsel’s

pre-trial error.

However, the warden’s counsel now describes Dr.

Erman’s sleep study as discrediting Dr. Kushida, not at all

supporting his opinion. Counsel argues that had this sleep

study been available during the trial, it would not have helped

Liao – to the contrary. Therefore, he argues Liao suffered no

prejudice.

Judge Trott: Is it your point now . . . that

the sleep studies themselves

would have been used to

destroy Dr. Kushida?

Mr. Smith: Yes, that’s absolutely correct,

your honor.

Judge Trott: That’s your point?

Mr. Smith: Yes, your Honor.

This counterintuitive argument, which is based on an

outlandish portrayal of Dr. Erman’s testimony, was not

articulated in the State’s responsive brief. It appears to have

been manufactured for oral argument. In fact, the State’s

argument in its brief is inconsistent with what it asserted to us

30 LIAO V. JUNIOUS

during oral argument. In its brief, the State says that because

“Dr. Kushida’s opinion was the same as Dr. Erman’s . . . ,”

Dr. Erman’s testimony was merely “cumulative” (emphasis

added). This is the same mistake made by the magistrate

judge, which we discuss in Section VII of this opinion.

Moreover, the State contradicts itself. Merely cumulative

information can hardly contradict the “same” information

from another source.

The State’s new argument is not only unconvincing, but

it is patently irreconcilable with and contradicted by the

record. Doctor Erman’s detailed testimony as quoted earlier

speaks for itself. Dr. Erman and Dr. Guilleminault looked at

the objective measurable results of the sleep study and

concluded that Liao was a sleepwalker. Their joint diagnosis

would not only have corroborated Dr. Kushida’s opinion, but

it was largely predicated on objective criteria that amounted

to direct medical evidence strongly tending to prove the

validity of Liao’s defense. This evidence was not just

corroborative, and certainly more than cumulative. It was

direct essential evidence of Liao’s asserted unconscious state

during the attack. It is inconceivable that the results of Dr.

Erman’s sleep study and testimony would have impeached

Dr. Kushida. Any argument to the contrary defies reason.

Moreover, if counsel had Dr. Erman’s and Dr.

Guilleminault’s testimony available at Liao’s trial, we firmly

believe that they would have likely been called as witnesses

before Dr. Kushida took the stand. Why? Because they had

what Dr. Kushida lacked: The objective results of a sleep

study.

The argument that the sleep study actually damaged Dr.

Kushida’s testimony is spurious to the point of being absurd.

To call this argument “unreasonable” is to be charitable. We

LIAO V. JUNIOUS 31

hesitate to be blunt, but AEDPA’s standard of review

demands more than polite disagreement. So be it. The

State’s claim that the prosecutor could have called Dr. Erman

as a witness to destroy Dr. Kushida is fatuous.

The Superior Court’s fact-driven finding that Liao

suffered no prejudice evinces additional consequential errors

which highlight the unreasonableness of its decision.

First, the court failed in its decision to acknowledge Dr.

Erman and Dr. Guilleminault’s sleepwalking diagnosis and

the objective evidence supporting it. Instead, the court

focused out of context on bits and pieces of Dr. Erman’s

testimony which the court regarded as diluting his diagnosis.

In so doing, the court omitted Dr. Erman’s explanation of

why these fragments did not erode his diagnosis. We can

only conclude that in considering Dr. Erman’s testimony, the

Superior Court did not recognize its full force and

importance.

Second, the court opined that the lay evidence of Liao’s

sleepwalking offered during the trial by his relatives, plus Dr.

Kushida’s belittled opinion, were sufficient to establish

Liao’s defense, making Dr. Erman’s evidence essentially

unnecessary. Equating lay testimony on a medical subject

with the testimony of two qualified doctors makes no sense,

none. One doubts that there is a lawyer alive who, with

doctors available to prove a medical condition, would use lay

witnesses instead, especially in a criminal trial where a

defendant needs only a reasonable doubt to prevail. Indeed,

the prosecutor pointed out not only the weaknesses in Liao’s

relatives’ testimonies, but that they were biased in his favor.

She told the jury, “These women have biases. But, you know,

what doesn’t have a bias is the evidence.” We agree, the

32 LIAO V. JUNIOUS

sleep study also would have had no bias. The Superior Court

may have been impressed with the relatives’ testimonies of

sleepwalking, but the prosecutor certainly was not. Neither

was the jury.

Third, the Superior Court inexplicably minimized the

devastating effect of the absence of a sleep study on Dr.

Kushida’s testimony, referencing instead Dr. Kushida’s

defensive claim that a sleep study was optional. The court

said, “The fact that Dr. Kushida was aggressively cross-

examined is not a basis to grant a second opportunity to

present its case but is something that happens in the search

for truth.” Liao doesn’t complain about aggressive cross-

examination per se, but that his counsel’s error made the

cross-examination brutally effective – as Dr. Sharma’s

rebuttal testimony undeniably demonstrates. We note that

without a study, Dr. Kushida was left with only an opinion,

not a diagnosis. Dr. Erman came forth with a diagnosis.

Moreover, the Superior Court did not even mention Dr.

Guilleminault, identified as the leading expert in his field.

Fourth, the Superior Court discredited the sleep study

because it did not produce an episode of actual sleepwalking

on Liao’s part. The court said, “Obviously, if the sleep study

had noted a full episode of sleepwalking, there would be no

question that the outcome probably would have been

different.” This comment and expectation ignored what Dr.

Kushida said in his April 8, 2003 letter to the court about

what the study might show: “However, it is very unlikely to

capture an actual sleepwalking episode by polysomnography

. . . .”

Dr. Erman agreed with Dr Kushida.

LIAO V. JUNIOUS 33

(Dr. Erman) [W]e typically don’t expect to

see the full episodes of arousal in patients

with good histories of these arousal disorders

when they’re in the lab. It’s very often as if

part of the brain is functioning to – to keep an

eye out on what is going on in these new

surroundings. When you add into that the

circumstances of someone who’s been

incarcerated who knows guards are outside

the room and who is shackled, the expectation

would be that this would lighten fragment

sleep; and we did see this, the sleep

efficiencies for the two studies we did were

both in the low range and 60% range. We

would ordinarily expect that to be in the high

80’s [sic] to low 90’s [sic].

The court simply discounted this unimpeached evidence and

improperly substituted its flawed understanding of the

expected results of a sleep study for those of qualified

doctors.

Fifth, in discussing the facts surrounding the early

morning attack, the court highlighted only those that might

prove Liao was conscious and aware of what he was doing,

omitting those that did not. From these selected facts, the

court concluded that in comparison to the defense, the

prosecutor’s case was strong. What the court did not discuss

were those contemporaneous facts offered by Henry Chen

and his mother that strongly implied that Liao was not aware

of what he was doing. As indicated in Part I of this opinion,

those facts are:

34 LIAO V. JUNIOUS

1) At midnight, just four hours before the attack, Li’s

sons Henry and Danny got into a fight. Liao helped

Li separate them, and when Li started to punish them,

Liao intervened on their behalf and asked her not to

do so.

2) Within seconds of the attack, when Chen asked Liao

what he was doing, Liao did not reply. Liao appeared

to be in shock.

Q What do you mean by that, he seemed to

be shocked?

A (Henry Chen) Like open his mouth and

just looking at me.

Q Sorry? Open mouth, and what else?

A (Henry Chen) And staring at me.

3) When Li asked Liao immediately after the attack why

he hit Chen, Liao repeatedly said, “Why did I do it?”

His answer was that he had a dream someone was

hitting him and he was fighting back.

4) Immediately after the attack, Liao assisted Li to tend

to her son’s wounds.

Q What was [Liao] doing?

A (Li) Nothing. Walking back and forth.

And also he was calling 911.

....

LIAO V. JUNIOUS 35

Q Was he helping you and your son that

evening?

A Yes.

Q And how was he helping you and your

son?

A He asked me to examine my son’s injury

and to put something over the injury to

stop the bleeding.

Q Did he seem concerned about your son

and his injury?

....

A Yes. He was trembling all over at seeing

my son’s bleeding.

5) Liao did not flee, he called the police and

accompanied Li and Chen to the hospital.

In other words, Dr. Erman and Dr. Guilleminault’s diagnosis

would not have existed in a vacuum, but would have served

to explain and to interpret Liao’s behavior that was not

consistent with trying to murder Li’s son with premeditation.

We are acutely aware that the Superior Court need not

have referred to or addressed in its statement of decision all

the facts weighing on this issue. But in this case, the facts

omitted from the court’s discussion are so glaring and

essential to a proper weighing and evaluation of the evidence

that when exposed and viewed in context, they render

36 LIAO V. JUNIOUS

objectively unreasonable the court’s conclusion that because

the prosecution had a strong case, Liao did not suffer any

prejudice. With all respect to our colleague on the Superior

Court, we do not see how any “fairminded jurist” could have

arrived at such a faulty determination. Davis v. Ayala,

135 S.Ct. 2187, 2199 (2015). We regret the use of such harsh

language, but as the State repeatedly demands, we must

adhere to the Supreme Court’s articulation of our strict

standard of review.

VI

The Superior Court’s fact-based decision that Liao

suffered no prejudice from his counsel’s error was not just

merely incorrect, but “objectively unreasonable.” Lett,

559 U.S. at 773; see also Richter, 562 U.S. at 101–02. What

is more, the Superior Court’s application of Strickland to the

facts of this case also was unreasonable as that term has been

construed in this context by the United States Supreme Court.

Thus, deference to the state’s decision is not applicable.

Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013).

Therefore, we look de novo at this issue.

From this perspective, we note that our precedent

recognizes that prejudice is established when, as Liao’s

counsel argues, “counsel’s error left the defense with

weaknesses that were exploited by the prosecution.”

In Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998), for

example, counsel’s error was his failure to call available

witnesses who could have corroborated his client’s alibi

defense. We said,

LIAO V. JUNIOUS 37

The district court concluded that the alibi

witnesses would not have helped Melvin at

trial because their testimony during the

evidentiary hearing was vague with regard to

time. Their testimony, however, was

consistent with Melvin’s account that he

arrived at Saunders’ house too early to have

participated in the shooting. Because their

testimony buttressed Melvin’s account on this

crucial point, it creates a reasonable

probability that the fact-finder would have

entertained a reasonable doubt concerning

guilt. As it was, without any corroborating

witnesses, Melvin’s bare testimony left him

without any effective defense.

Id. at 1157–58 (citations omitted).

We came to a similar conclusion in Luna v. Cambra,

306 F.3d 954 amended in 311 F.3d 928 (9th Cir. 2002),

another case involving a failure of trial counsel to call known

alibi witnesses to corroborate his client’s testimony. Citing

Brown, we determined that counsel’s error prejudiced Luna

because without corroborating witnesses, 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 precedents as they relate to this appeal

finds support in a recent Supreme Court case, Hinton v.

Alabama, 134 S. Ct. 1081 (2014). The Court said that a

defendant could well be prejudiced by his attorney’s failure

to secure an expert witness on a scientific issue if “there is a

reasonable probability that . . . [the] expert . . . would have

instilled in the jury a reasonable doubt as to [his client’s] guilt

38 LIAO V. JUNIOUS

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

about Dr. Erman.

VII

The magistrate judge’s decision was similarly flawed.

The decision erroneously labeled Dr. Erman’s testimony as

well as the results of the sleep study “merely cumulative.”

This label betrays a serious misunderstanding of the

difference between direct and corroborating evidence, on one

hand, and evidence that unnecessarily proves a point already

sufficiently established, on the other. Black’s Law Dictionary

defines cumulative evidence as “[a]dditional evidence that

supports a fact established by the existing evidence (esp. that

which does not need further support).” Evidence, Black’s

Law Dictionary (10th ed. 2014). Corroborative evidence, on

the other hand, is “[e]vidence that differs from but

strengthens or confirms what other evidence shows (esp. that

which needs support).” Id. Articulating these definitions

exposes the fatal error in degrading Dr. Erman’s and Dr.

Guilleminault’s input and the sleep study results to

unnecessary surplusage.

VIII

Contrary to the State’s claim that we are improperly

second-guessing a reasonable state court decision, we are not.

Neither are we merely quibbling or disagreeing with our state

court colleagues. We are simply performing the function that

federal law requires: To guard against the illegal and

unconstitutional confinement by a state of an individual

entitled to the benefits of the rule of law. Performing this

task, we conclude that the presumption of correctness

LIAO V. JUNIOUS 39

afforded to the state court’s decision has been shattered by

clear and convincing evidence.

Liao spent years in prison without having had a fair trial.

His attorney’s serious mistake, triggered by an equally

grievous error by a court clerk, eviscerated a viable defense

of unconsciousness. His conviction represents an extreme

malfunction of justice caused by a violation of his Sixth

Amendment right to competent and effective counsel, a

violation which the State does not dispute. This error was

anything and everything but harmless.

IX

Liao has served his time in prison and is currently on

parole. It is difficult to conceive of circumstances under

which the State would again take him before a jury.

Nevertheless, as is our practice and authority, we reverse the

decision of the District Court and remand with instructions to

grant a conditional writ of habeas corpus ordering Liao’s

release from all forms of custody unless the State of

California elects within 90 days of the issuance of the

mandate to retry him. Any such retrial shall commence

within a reasonable time thereafter to be set by the District

Court.

REVERSED AND REMANDED.