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Whitney v. Henry

March 15, 2007


The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge


By order filed November 16, 2004, the Ninth Circuit remanded Petitioner Arlene B. Whitney's petition for writ of habeas corpus. The Ninth Circuit remanded the case for reconsideration in light of Missouri v. Seibert, 542 U.S. 600 (2004). Following briefing and oral argument held on September 21, 2005, the Court denied the parties' cross-motions for summary judgment. However, it permitted discovery to ascertain whether, at the time of Whitney's confession, the Oceanside Police Department had a deliberate two-step interrogation strategy designed to circumvent Miranda. See id. at 621-22 (Kennedy, J., concurring); Docket # 74 (order granting application for issuance of subpoena). Respondent introduced the only additional evidence in the form of three declarations from the detectives involved in the investigation. No evidence of any Oceanside Police Department formal or informal custom or training designed to circumvent Miranda has been introduced.

Currently before the Court is Petitioner's motion for reconsideration of its previous denial of summary judgment regarding claims one and two of the habeas petition. Petitioner argues that Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006), and the Ninth Circuit interpretation of Seibert in United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), compel issuance of the writ. For the reasons discussed below, the motion is DENIED.


The Court incorporates by reference the facts as presented in Judge Brooks's Report and Recommendation ("R&R") filed October 19, 2000. See Docket # 29. By order filed January 18, 2002, this Court adopted in part and rejected in part Judge Brooks's R&R. While this Court agreed with Judge Brooks's analysis of the statute of limitations, exhaustion, and sufficiency of the evidence issues, it disagreed with his conclusion that the state court determination that the admission of Whitney's videotaped confessions was harmless error was a reasonable application of clearly established Supreme Court precedent. It found instead that the admission of these confessions, made both before and after administration of Miranda warnings, had a substantial and injurious effect on the jury's verdict. Nevertheless, the Court denied the petition because it found the post-Miranda statements admissible under Oregon v. Elstad, 470 U.S. 298 (1985). The Court granted Whitney a certificate of appealability, and on February 19, 2002, she filed a notice of appeal and a motion for appointment of counsel. This Court granted Petitioner's motion and appointed the Federal Defenders of San Diego to represent her.

On December 8, 2005, following remand and the Court's authorization of discovery, Whitney filed a motion for summary judgment regarding claim two of her petition, which contended that her post-Miranda confession should not have been admitted at trial. Whitney argued that the Miranda warning did not fully advise her of her rights. By order filed April 12, 2006, the Court denied the motion. See Docket # 88. Whitney filed the current motion for reconsideration on March 9, 2006.


The mater is presently before the Court on remand from the Ninth Circuit for reconsideration in light of Missouri v. Seibert. The Court previously denied Petitioner's motion for summary judgment without prejudice, but permitted discovery of Oceanside Police Department records requested by the parties relating to the training of Detective McDonough. Discovery has been completed and Petitioner now moves for reconsideration of her previous motion. All of the facts relating to the issue on remand are before the Court. Therefore, the Court can proceed to address the reconsideration of its previous judgment in light of Seibert as directed by the Ninth Circuit.

A. Applicability of Kaua and Van Lynn

Whitney first argues that the Court erred in its initial denial of the writ. She bases her argument on the decisions in Kaua, 436 F. 3d 1057, and Van Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003). Whitney interprets these cases to mean that the Court, in reviewing the state court decision, may only rely on reasoning offered by the state court in rejecting the Miranda claim. She contends this Court erred in finding that her post-Miranda statements were admissible because it is an impermissible alternative basis for denying the writ.

Kaua and Van Lynn are factually distinguishable, however. In Van Lynn, for example, the Ninth Circuit affirmed the grant of the petitioner's writ, declining to "invent an alternative rationale for the state court's decision which requires application of an entirely different and unrelated legal principle." 347 F.3d at 741. In Kaua, the Ninth Circuit held that the petitioner's sentence violated Apprendi because the state court found facts which increased the penalty for the crime beyond the statutory maximum. 436 F.3d at 1060. The court in Kaua dismissed respondent's arguments to the contrary, holding that its review was limited to the reasons given by the state court. Id. at 1061. Here, however, the state court clearly considered the Miranda issue.

In this Court's January 2002 order, the Court found that the California Court of Appeal's harmless error analysis was contrary to clearly established law. The Court concluded that admission of Whitney's confession could not have been harmless error.

However, this does not necessarily mean that an error was committed by the admission of the confession at trial. Rather, this Court further held that the Court of Appeal's determination that the admission of Whitney's confession was an error, even if harmless, was also contrary to clearly established federal law as announced in Elstad. Essentially, the decision of the California Court of Appeal included two holdings on the post-Miranda confession issue. It held that: (1) admission of the statement was error; and (2) such error was harmless beyond a reasonable doubt. This Court, in its prior ruling, reviewed both determinations and found both to be contrary to clearly established law of the United States Supreme Court. When both clear errors are remedied, the result is the denial of the Petitioner's writ. Unlike Kaua and ...

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