F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JAN 31 2003

PATRICK FISHER
Clerk

HAROLD E. HOLMES, JR.,

Petitioner - Appellant,
v.
DAVID R. MCKUNE; ATTORNEY
GENERAL OF KANSAS,

No. 01-3004
D.C. No. 97-CV-3134-DES
(D. Kansas)

Respondents - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.

This appeal arises from the district courts denial of a habeas petition under
28 U.S.C. 2254. Harold Eugene Holmes, the petitioner and appellant in this
case, was convicted by a Kansas trial court in 1979 of rape, aggravated battery,
and aggravated kidnapping. Following his conviction and a direct appeal, Holmes
initiated two state post-conviction proceedings arguing ineffective assistance of
counsel, which were denied. Both denials were appealed to the Kansas Court of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Appeals, but Holmes did not obtain any relief in state 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 ineffective.
Holmess federal habeas petition was dismissed by the district court, but
the district court granted a certificate of appealability (COA) as to the issue of
whether Holmess trial counsel was ineffective for failing to investigate Holmess
alibi defense and interview potential witnesses. 1 We have jurisdiction over
Holmess appeal pursuant to 28 U.S.C. 1291, 2 and we reverse and grant habeas
relief.

We expanded the COA to include the issue of whether trial counsel was
also ineffective for failing to object to hearsay hypnosis testimony. This claim
may be procedurally barred, as conceded by Holmess counsel in a supplemental
brief. Because, as discussed below, we conclude that Holmess trial counsels
failure to call alibi witnesses constituted ineffective assistance of counsel and
prejudiced Holmess trial, however, we do not reach the issue of whether trial
counsel was also ineffective for failing to object to the hearsay hypnosis
testimony.
1

Holmes release on parole on December 31, 2001, does not divest us of

jurisdiction or render this action moot. The restrictions on Holmes as part of his
probationincluding restriction to a particular residence, mandatory meetings
with a parole officer and participation in counseling, a requirement that the parole
officer approve any job, and the risk of return to jail should parole conditions be
violatedconstitute sufficient restrictions on Holmess liberty such that he is in
custody for habeas jurisdictional purposes, and his case is not moot. See Jones
v. Cunningham, 371 U.S. 236, 24243 (1963); see also Jago v. Van Curen, 454
U.S. 14, 21 n.3 (1981); Olson v. Hart, 965 F.2d 940, 94243 (10th Cir. 1992)
(Probationary status is sufficiently in custody pursuant to section 2254 to
permit habeas relief.).
2

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I
Because our analysis in this case will ultimately depend on a review of the
evidence presented at trial, we provide here a thorough overview of the events
leading up to Holmess trial, the trial itself, and Holmess 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 is 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 School 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 house.
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 old, approximately six foot in
height, weighing somewhere between 160 to 170 pounds, with a normal medium
size natural hairdo. (6 R. at 55.) The victim described the shorter assailant as
approximately 20 to 25 years of age, approximately five foot eight to five foot
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ten inches in height, approximately 150 pounds, with a bushy . . . hairdo. (6 id.)
Asked about the clothing worn by the assailants, the victim could not give any
description.
Either before or after her interview with the police, 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 pointing out the assailants
features. In these comments, she described his ears as close to his head, his cheek
bones as prominent, high, and somewhat delicate, his 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 high, and his eyebrows as
straight. (6 id. at 11112.)
When the victim spoke to a detective at the police station the day after the
rape, she provided further details on the appearance of the two assailants. She
told the police that she thought the first individual 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 photographs of Holmes, another
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male named Larry Kelly, and a boy named Willie Triplett. The photographs of
Holmes and Kelly were large mug shots, while the other photographs were
smaller, obtained from Coronado Junior High. Looking at these photographs, the
victim told the detective that Kelly looked like the tall suspect who raped her
and Triplett looked similar to one of the assailants. (6 id. at 22526.) At trial,
no one testified that the victim positively identified the mug shot of Holmes on
this date.
On October 4, 1978, the victim went to the police station 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 photograph 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 shot of
Holmes several weeks before, observed the men in the 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 frisbee near his house with several
boys: Jake Carmack, Jakes cousin Danny, Jim and Bobby 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
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pooled their money to purchase marijuana. After Bobby Bailey returned with the
marijuana, explained Holmes, the boys went into the woods north of Holmess
house and built a campfire.
Holmes told the police that Jake Carmack, Danny, and 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 Holmess 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 local newspaper the next day, and
was glad he had an alibi. Holmes stated that he did not go to Coronado Junior
High School, the site of the rape, at any point that evening. Holmes also denied
going to Frank Harveys house or seeing Harvey, Ricky 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 Millers death. A judge
appointed Dave Boal, an attorney, to represent Holmes in conjunction with the
manslaughter charge. While the manslaughter charge was still pending, Holmes
was also charged with the rape, assault, and kidnapping at Coronado Junior High,
and he retained Boal to represent him in the rape charge as well. At the time of

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his trial for rape, Holmes was eighteen years old and 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 playing frisbee with him on the
evening of August 21. Boal, however, did not speak with any of these potential
witnesses, apparently relying on Holmes to bring them to his office. Boal read
the police statements of three of Holmess suggested alibi witnesses, and became
somewhat disenamored with the quality of his alibi defense. (5 id. at 2425.)
B
At trial, the victim identified Holmes as the man who raped her.
Comparing a photograph of Holmes to the comments she wrote next to her
drawing of the primary assailant, the victim testified that her description matched
the photograph. According to the victim, Holmes was the taller of the two
assailants. Although the victim referred to her primary 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 recall what name the smaller man
had called the other assailant. 3 On cross-examination, the victim testified that it
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...)
3

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was dark at the time of the rape, although there was some artificial light and she
could see.
In order to corroborate the victims 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 had a phone conversation with
Holmes, after which Holmes arrived at Tripletts house and talked to him about
the rape. According to Triplett, Holmes took a shower 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, Holmes confessed to the
Coronado Junior High rape in the presence of Triplett and Miller. A week later,
Triplett claimed, Holmes confessed again in the presence of Triplett and another
boy named Frank Harvey. On cross-examination, Triplett testifed that his cousin
Miller had been about six foot two, while Holmes was five foot nine or five foot
eight. Although he claimed not to be aware that the victim had identified him as
looking like one of the assailants, Triplett admitted to having heard that the
victim was picking out a lot of people. (6 id. at 27273.)
(...continued)
hearsay testimony. Holmess middle name was Eugene, a fact pointed out by the
prosecutor.
3

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In addition to Triplett, the State called a fifteen-year-old boy named Frank

Harvey. Harvey denied having seen Holmes on the night of August 21, but
testified that he later asked Miller if it was true that they did it, and he said
yeah. (6 id. at 27879.) Harvey further claimed that he kind of knew that
[Holmes] was with [Miller] during the attack because 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 crime. (6 id. at 285.)
Boal knew that Holmes had been in a long-standing feud with Triplett and
that Holmes had killed Tripletts cousin. Nevertheless, Boal introduced no
evidence concerning the circumstances of Millers death, because Boal feared it
might prejudice the jury to know that Holmes was charged with manslaughter.
A criminalist called by the State testified that both 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 as the person who raped the
victim. (6 id. at 149.) No testimony was introduced as to the proportion of
African-American males who have type A blood.

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Conceding that Holmes had camped in the woods on August 21, the State
called three of the boys with whom Holmes had camped. The States theory was
that Holmes went camping with these boys after he had participated in the attack,
in an attempt to create an alibi.
Robert Bobby Bailey testified that he was with Holmes on August 21 and
that they went camping in the woods near their homes at about ten oclock. He
said that the police came by at around eleven oclock to check out a neighbors
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 23839.) On crossexamination, Boal elicited testimony that, according to Bobby Baileys police
statement, they had collected money for marijuana at about fifteen minutes until
ten, that Holmes had been with him about fifteen minutes 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 Baileys confusion over how long he had been with Holmes
prior to the arrival of the police rendered his testimony less credible.
Next, James Jim Bailey testified that he, too, was with Holmes on August
21. He stated that they played frisbee before going to the woods, that he stayed in
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the woods about a half-hour and then left to go home for food, and that he saw the
rest of the boys again playing frisbee after the police 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 the detective had never asked
Jim Bailey what time it was when he first saw Holmes. Jim Baileys testimony
corroborated Holmess statement that he played frisbee 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 could 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 Holmess 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, kind 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, suggesting that he saw Holmes
before the rape, which occurred shortly after 9:30.
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Carmack was then asked to read aloud his prior police statement in which
he estimated that the police talked with them about the 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 prior
statement that he had been with Holmes about an hour 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 Vienss 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 Vienss house when the police arrived to tell them not to leave the fire.
Bobby Bailey and Jake Carmack, therefore, estimated that the police
responded to the campfire sometime between ten and eleven oclock. These
estimates were demonstrated to be incorrect when the State introduced a dispatch
card showing that the police responded to a call about the campfire a minute
before midnight. Holmess alibi defense thus depended on the testimony of two
boys called by the State whose time estimates contradicted the dispatch card.
Boal called no alibi witnesses. Holmes was the only defense witness.
Holmes essentially testified to the same facts given in his prior police statement,
adding that he went to his house and got permission before camping with the
boys. He also testified that a neighbor had become disturbed over the noise the
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boys were making as they were breaking up logs to build 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 August 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 corroborate Holmess testimony.
In his closing argument, the prosecutor focused on the victims
identification of Holmes as the taller assailant and her drawing and description of
the assailant. Asserting that the only documented time, other than the victims
testimony, was on the police dispatch card, and noting that the boys who testified
Holmes went camping with them smoked marijuana that night (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 for two hours and then
requested to hear Tripletts testimony again. The next day, the jury deliberated
for a little over two more hours before finding Holmes guilty of all charges.
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C
On June 3, 1983, the state court held a post-conviction hearing on Holmess
claim of ineffective assistance of counsel. Boal was called as the first witness,
but did not recall much about Holmess case. Boal testified that he did not
telephone or interview any of the alibi witnesses prior 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 office and that Holmes failed to do
so. Second, he claimed that he had no way of knowing whether or not the police
interviewed witnesses beyond [the three boys the State called at trial], and, after
reading the three statements of these three boys, he became somewhat
disenamored with the quality of [Holmess] alibi defense. (5 id. at 2122,
2425.) Boal said he didnt bother recalling the three witnesses after the State
rested because Holmes had told him that the three witnesses would verify his
alibi, but they had failed to do so at trial. (5 id. at 22.) Boal had no other
explanation for having failed to investigate and interview witnesses not called by
the State who could have testified about Holmess activities on the night of the
rape.
Boal stated that he could not remember the content of conversations with
the defendants mother, Mrs. Holmes, could not remember whether he listed her
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as an alibi witness, 4 and could not remember the defendant Holmes saying that he
wanted her to testify on his behalf. Later, he recanted and testified that his
recollection was (and this may not be accurate) that he, Mrs. Holmes, and the
defendant Holmes discussed calling her and determined that she would not be a
witness. (5 id. at 18.) He could not remember, however, on what they had based
that determination.
Holmess mother also testified at the post-conviction hearing. Mrs. Holmes
asserted that Boal had told her that she might be needed as a witness and had her
wait in the hall or at work during most of the trial. 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. Holmes 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 5051.) She
stated that her son asked permission to go someplace at around 10:00 p.m. 5 (5
id. at 52.)
Holmes was called as the next witness. He testified that, the day Boal was
appointed as counsel for the rape case, he told Boal that he did not commit the

witness.

According to the state, the defense did list Mrs. Holmes as an alibi

Counsel cautioned Mrs. Holmes not to reveal the specific details of her
knowledge.
5

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crime and gave him the names of the young men he was with on the evening of
the rape. Holmes further testified that he had explained to Boal that Willie
Triplett had been in a long-standing, violent feud with Holmes and that Holmes
had shot and killed Tripletts 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 went to Boals office with a
list of witness names and addresses, but Boal was not there. Holmes left the list
with Boals secretary. According to Holmes, when it 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 didnt 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

The court did not believe this testimony at the post-conviction hearing.
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impeach his testimony with his prior police statement, suggesting that the
statement was consistent with his testimony at the post-conviction hearing.
After hearing the evidence, the judge asked Holmess counsel if he agreed
that an attorney has a right to rely upon his client 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 witnesses to Boals 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 Holmess counsel told the court that it was a white
community, and that Holmess was the only black family, the court stated, I just
feel that Holmes had some obligation to assist in this matter. (5 id.) The court
then found that the three witnesses at trial did not materially assist the defendant
in his alibi defense, and that, after Boal read their statements, he may have
determined that other witnesses likewise would not assist 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, Holmes brought another state postconviction proceeding, challenging hypnosis testimony 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
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the Kansas Court of Appeals refused to reconsider the issue of ineffective

assistance of counsel. Finally, Holmes brought a petition 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 Death Penalty 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 petitions 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 whether 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 proceedings, the writ of habeas corpus
will not be granted unless the adjudication of that claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
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
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state-court decision is contrary to the law established by the Supreme Court if

(1) the state court applies a rule that contradicts the governing law set forth in
[the Courts] cases or (2) the state court confronts a set of facts that are
materially indistinguishable from a decision of [the] Court and nevertheless
arrives at a result different from [the Courts] precedent. Id. at 40506 (opinion
of OConnor, J.) (speaking for a majority of the Court). A state-court decision is
an unreasonable application of Supreme Court precedent if (1) the state court
identifies the correct governing legal rule from [the] Courts cases but
unreasonably applies it to the facts of the particular state prisoners case, or (2)
the state court either unreasonably extends a legal principle from our precedent
to a new context where it should not apply or unreasonably 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 established law erroneously or
incorrectly: that application must also be unreasonable. Id. at 411. However,
the petitioner need not show that all reasonable jurists would disagree with the
state courts decision. Id. at 40910.
Factual issues decided by the state courts are presumed to be correct, and
Holmes bears the burden of rebutting the presumption 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 federal
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district courts 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 courts factual findings are based solely upon a review of the state
court record, however, they are subject to this courts independent review. Tyler
v. Nelson, 163 F.3d 1222, 122627 (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 facts relied on by the district
court are subject to our independent review.
A
Holmes urges that his ineffective assistance of counsel claim should be
evaluated according to the criteria enunciated by the Court in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland is also cited by the government,
and its two-prong test was relied upon by the district court. As was pointed out at
oral argument by counsel for the government, however, Strickland was decided by
the Supreme Court four days after May 10, 1984, when the Kansas Court of

Where there is no evidence that a state court did not address a particular
claim, we owe deference to the state courts 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, however, we do not defer to the state
courts result with respect to that claim. See Duckett v. Mullin, 306 F.3d 982,
99091 n.1 (10th Cir. 2002) (stating that, where there is ample evidence that
the state court failed to consider a particular claim altogether, there is no result
to which we can defer).
7

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Appeals decided Holmess appeal of his first post-conviction proceeding. Thus,

Strickland was not clearly established federal law when the Kansas Court of
Appeals issued its first decision in Holmess case. Holmes did file a subsequent
post-conviction proceeding, which was decided on appeal by the Kansas Court of
Appeals in 1993. This subsequent appellate decision, however, did not reach[]
the merits of Holmess ineffective-assistance-of-counsel 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 analyzing the ruling of the Kansas
Court of Appeals with respect to Holmess ineffective-assistance-of-counsel
claim, we must look to the federal law as established 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 Supreme Court law as it existed
prior to Strickland may we grant Holmes habeas relief.
Long before Strickland, the Supreme Court recognized that the right to
counsel is the right to effective assistance of counsel. 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 which persons 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
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recognized that the right to counsel is the right to effective assistance of

counsel.). Moreover, the Court held that the right to effective assistance of
counsel imposed upon the attorney the duty to conduct an adequate investigation
of the facts. See Powell v. Alabama, 287 U.S. 45, 58 (1932). When the Kansas
Court of Appeals decided Holmess 1984 appeal, therefore, it was clearly
established Supreme Court law that the Sixth Amendment guaranteed criminal
defendants effective assistance of counsel, and that an attorneys failure to
investigate the facts constituted a violation of this constitutional guarantee.
Although the Supreme Court had made it clear long before Strickland that
effective assistance of counsel was constitutionally guaranteed in criminal cases,
lower federal courts differed on the appropriate test to determine whether a Sixth
Amendment violation had occurred. A few years before Strickland was decided,
three circuit courts still held that the representation of a defendant will be
deemed adequate as a matter of constitutional law unless 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).
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By the end of 1983, all the circuits had adopted the reasonably competent
assistance articulation of the standard. See Trapnell v. United States, 725 F.2d
149, 15255 (2d Cir. 1983) (stating that [t]he Second Circuit is now the only
circuit court that has . . . not embraced the reasonably competent assistance
standard, and proceeding to adopt that articulation of the standard). Because the
reasonably competent assistance standard was developed in the circuit courts,
however, it was not clearly established by the Supreme Court until 1984,
although the Court indirectly recognized the standard 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 court could
only have reasonably applied Supreme Court precedent before Strickland by
adopting one of the two prevailing interpretations or an equivalent test. 8 A
defendant whose counsel both made a mockery of justice and failed to render
reasonably competent assistance would have received ineffective assistance
under any reasonable application of Supreme Court law. Moreover, when the two
standards were compared in Strickland, the Supreme Court acknowledged that the
divergent standards were applied identically in practice. 466 U.S. at 696.
We will not speculate as to other possible tests that might have been
invented by a maverick state court before Strickland, because any test that set a
higher threshold than the mockery of justice standard would not have been a
reasonable application of Supreme Court precedent. As discussed below, we hold
that the mockery of justice test was satisfied here.
8

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We hold that, under either the mockery of justice standard or the

reasonably competent assistance standard, Boals complete failure to interview
and call any alibi witnesses constituted ineffective assistance of counsel. Boal
expected Holmes to bring the witnesses to his office, 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). Holmess entire defense rested on
his alibi, and Boal made no effort to contact the witnesses on Holmess list even
by telephone. Defense counsel must always investigate an alibi defense. See
Powell, 287 U.S. at 58. If for no other reason, an investigation may reveal that
the alibi defense is fabricated, in which case the attorney must withdraw from
representation. Williams v. Florida, 399 U.S. 78, 10506 (1970) (Burger, C.J.,
concurring) (discussing defense counsels obligations when an alibi defense is
discovered to be contrived and fabricated). Instead, Boal relied on police
statements taken down for the purpose of inculpating Holmes, essentially
delegating to the State his duties as defense counsel. Such delegation is
impermissible.
Boals conduct clearly falls short of what can be expected 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 unreasonable for defense counsel
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not to attempt to contact alibi witnesses to ascertain whether their testimony

would aid the defense. Holmes v. McKune, 117 F. Supp. 2d. 1096, 1109 (D.
Kan. 2000). 9 Furthermore, given that Holmess alibi was the cornerstone of his
case, Boals failure to investigate Holmess alibi defense rendered the trial a
mockery of justice. Holmess only defense was abandoned by his own attorney,
leaving nothing but Holmess testimony to counter the States case against
Holmes. Under any reasonable application of pre-Strickland Supreme Court law,
therefore, Boal fell short of the standard required by the Sixth Amendment.
B
In order to conclude that the Kansas Court of Appeals unreasonably applied
Supreme Court law, however, we must further examine whether Boals failure to
call alibi witnesses prejudiced the defense. The issue 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 courts determination that there was

Although the district court did not explicitly find that Boals performance
was deficient, the court did state that [o]n the record currently before the court,
it cannot be found that counsel made a reasonable decision that further
investigation of Holmes alibi defense was unnecessary. Holmes v. McKune,
117 F. Supp. 2d. at 1111. The court ultimately rejected Holmess ineffective
assistance of counsel claim for failure to show prejudice. Id. at 1113. As
discussed below, we conclude that Boals failure to interview and call alibi
witnesses was indeed prejudicial.
9

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no prejudice. 10
Under Strickland, in order for counsels performance to constitute
ineffective assistance of counsel, counsels deficiencies must have prejudiced the
defense. 466 U.S. at 692. Prejudice was a required component of ineffective
assistance of counsel even before Strickland. In 1981, discussing prior cases on
effective assistance of counsel, the Court stated that the premise of our prior
cases is that the constitutional infringement identified has had or threatens some
adverse effect upon the effectiveness of counsels representation or has produced
some other prejudice to the defense. United States v. Morrison, 449 U.S. 361,
365 (1981). Without a prejudicial impact on a criminal proceeding, the Court
held, there is no basis for imposing a remedy. Id. Thus, the 1984 ruling of the
Kansas Court of Appeals can only be deemed an unreasonable application of
In reaching its conclusion that Boals failure to call alibi witnesses did
not prejudice the defense, the district court viewed 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 State 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 we review a claim that the
evidence is insufficient, we are reevaluating evidence that was already considered
by the jury, and thus the government should be given 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 trialsuch as the testimony of Mrs. Holmes and
Neil Phelpsin the light most favorable to the government, because this evidence
was never assessed by the jury and played no role in the jurys decision.
Accordingly, the district court erred to the extent that it evaluated evidence not
presented at trial in the light most favorable to the government.
10

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Supreme Court law if the failings of Holmess trial counsel prejudiced his
defense.
Although we are applying pre-Strickland standards, the prejudice
requirement of Strickland added nothing new to the law as it stood at the time of
Holmess first state collateral appeal. See Morrison, 449 U.S. at 365 (discussing
the pre-Strickland prejudice requirement); cf. Strickland, 466 U.S. at 697
(explaining that only in the rarest case would the Strickland test alter the merit
of an ineffectiveness claim). Other circuits, applying the Strickland standard on
habeas review, have found that a failure to call key 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 counsel failed to call three alibi
witnesses who could have added a great deal of substance and credibility to the
defendants alibi. Id. at 63435. The court reached this result even though the
defense did call two other individuals as alibi witnesses. Id. at 625. In Luna v.
Cambra, 306 F.3d 954, 96162 (9th Cir. 2002), the Ninth Circuit held that a
failure to call the defendants mother and sister as alibi witnesses was prejudicial,
despite their family ties to the defendant.
As discussed above, at his state post-conviction hearing, Holmes called
four witnesses: Boal, Holmess mother, Holmes himself, and Neil Phelps.
Holmess mother and Neil Phelps, neither of whom was called to testify at
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Holmess trial, explained at the post-conviction hearing that they would have
corroborated Holmess 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 only as to Holmess whereabouts
before and during the time that the rape occurred.
Noting that she was readily available to testify at her sons trial, but was
not called, Mrs. Holmes explained at the post-conviction hearing that she knew
where her son was until ten oclock 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 seven or eight oclock to ten
oclock at night. Around ten oclock, Holmes asked his 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. Holmes been allowed to give this
testimony at trial, it would therefore have corroborated her sons alibi to the
extent the jury believed her.
Neil Phelps, a neighbor of Holmes, testified that he 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 his
As the district court notes, Phelpss assertion that he played frisbee with
Holmes about all afternoon, taken literally, seems to conflict with Holmess
(continued...)
11

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recollection, Holmes was with him the entire time he was playing Frisbee. Phelps
then went to ask [his] mom, presumably for permission to go camping with the
other boys. (5 id.) Phelps did not testify about what happened on the 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 10:30, his testimony implied
that Holmes could not have committed the rape shortly after 9:30.
Phelpss testimony and that of Mrs. Holmes, if believed by the jury, would
thus have corroborated Holmess alibi without reference to the arrival of the
police at the campfire. Because Mrs. Holmes was the petitioners mother, her
testimony might have been discounted somewhat by the jury. Phelps, however,
was not a relative of Holmes, and his testimony would have been less subject to
attack by the prosecution.
Unlike Bobby Bailey and Jake Carmack, Phelps did not testify that he
smoked marijuana on the night of the rape, and his memory of how long he spent

(...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 oclock at night would have been a very long frisbee game
indeed. In any event, the importance of Phelpss testimony lies in his estimation
of the time he last saw Holmes, not the length of time he was with Holmes prior
to the time the rape occurred.
11

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playing frisbee with Holmes was not impaired by any effects of the drug. During
his closing argument, the prosecutor called attention to the fact that the boys who
went camping with Holmes had been smoking marijuana, the prosecutors
implication being that this might have affected their 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 of 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 Phelpss testimony contradicted his prior police statement. If the
State could have impeached Phelps by pointing to inconsistent statements given to
the police, they would have done so at the post-conviction hearing. At trial, the
prosecutor was able to discount the testimony of the boys who testified as to
Holmess whereabouts by referring to their police statements 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 about an hour or an hour
and a half before the police arrived (6 id. at 239, 251), the prosecutor was able

Jim Bailey did not testify that he smoked marijuana with the other boys.
Jim Bailey, however, did not recall what time it was 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.
12

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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 the two boys did not prove that
Holmes was with them at the time of the rape. Phelps, by contrast, testified that
he was with Holmes until about 10:00 or 10:30. Thus, Phelpss 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 oclock.
Phelpss testimony, therefore, would have considerably strengthened
Holmess case. In response to the prosecutors impeachment 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 could vouch for Holmess
whereabouts at the time of the rape without reference to the later arrival of the
police at the campsite.
Had Phelps testified, the defense could have responded more effectively to
a statement by the prosecutor during closing argument that [t]he time
differentials involved are not there for Holmess alibi (6 id. at 347). Likewise,
the prosecutions assertion that the only documented time, other than the
victims testimony, was on the police dispatch card (6 id. at 329) would have
Two of the boys, Jim Bailey and Jake Carmack, did not testify as to the
exact time they stopped playing frisbee, and thus their 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 minutes to ten, which fits with
Phelpss testimony that he was with Holmes until about 10:00 or 10:30.
13

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carried less weight in the face of an unimpeachable recollection by Phelps.

Phelpss testimony would have been the cornerstone of Holmess alibi defense,
had he been called to testify at trial. Instead, the only alibi witnesses called were
state witnesses, and Boal had not spoken with any of them prior to the trial.
As discussed above, other circuits have held that a failure to call key alibi
witnesses can be prejudicial even if the defense did call some alibi witnesses (as
in Washington) or the witnesses not called had family ties to the defendant (as in
Luna). In the present case, only one witness had family ties to the
defendantMrs. Holmesand the three witnesses who did testify to Holmess
alibi were called by the state, not by the defense. Thus, the present case presents
an even stronger case for prejudice than Washington or Luna.
In making a prejudice determination, the strength or weakness of the
States case is relevant. [A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors 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, Boals failure to call Phelps as a witness might have
been less prejudicial. The States case, however, was weak.

Although this point was made in Strickland, it applies equally well to

our pre-Strickland analysis. We scrupulously review the record in cases
involving the constitutional right to counsel. Avery, 308 U.S. at 447 (1940).
14

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First, the victims identification of Holmes was suspect. Factors to be

considered in determining the reliability of a witnesss 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 accuracy 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, 199200 (1972). Here, the victims only
opportunity to view her assailants was under poor lighting conditions. With
regard to accuracy, the victims description of Holmes as the taller of the two
assailants conflicted with Willie Tripletts testimony 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 victims first positive identification of
Holmes, after she had already passed over his mug shot in a photographic array.
Accordingly, three of the factors that the Supreme Court has enunciated suggest
that the victims testimony is unreliable. Only the level of certainty demonstrated
by the victim at trial weighs strongly in favor of giving credence to her
identification of Holmes.

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Second, the other witnesses who testified that Holmes was involved in the
rape were far from credible. Willie Triplett, who testified that Holmes confessed
the rape to him, had conflicted motives: the victim had identified Tripletts
photograph out of the array as appearing similar to one of the assailants.
Tripletts testimony not only inculpated Holmesit exculpated himself. Frank
Harveys 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 know who had told him Holmes
was involved. Harveys testimony was unreliable hearsay.
Apart from this questionable testimony, the States physical evidence
established only that Holmes could not be eliminated 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 have 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 American Negro population).
Seen in context, this evidence has little persuasive value.
On balance, the States case against Holmes hung on a slender thread of
unreliable and contradictory evidence. In the face of a case so weakly supported,
Neil Phelpss testimony would have considerably bolstered the defense. Mrs.
Holmess testimony, taken in conjunction with that of Phelps, might also have
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tilted the scales in favor of acquittal. Boals failure to call any alibi witnesses,
relying only on the witnesses called by the State, is much more likely to have
affected the trial when the weakness of the States case is taken into account.
Reviewing the record de novo, therefore, we conclude that Boals failure to
interview and call Phelps and Mrs. Holmes was prejudicial to Holmess defense. 15
Because the decision of the Kansas Court of Appeals could not have been
justified by a finding of no prejudice, their conclusion that Holmes received
effective assistance of counsel was an unreasonable application of clearly
established Federal law, as determined by the Supreme 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.

Boal also failed to interview or call several other potential alibi

witnesses listed by HolmesJohn Viens, Dan Carmack, Scott Phelps, and Mrs.
Blacksherwho did not testify either at trial or at the post-conviction hearing.
Because we hold that the failure to call Mrs. Holmes and Neil Phelps was
prejudicial, we need not consider whether Boal also prejudiced Holmess defense
by not calling these other witnesses.
15

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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

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