The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
I. Introduction and Summary
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus. Petitioner challenges his 2001 conviction for murder (Cal. Penal Code § 187(a)), robbery (Cal. Penal Code § 211), and burglary (Cal. Penal Code § 459), with the special circumstance that petitioner was engaged in the commission or attempted commission of the crimes of robbery and burglary when the murder took place. Petitioner is serving a sentence of life in prison without the possibility of parole and additional determinate terms totaling fifteen years.
This action is proceeding on the amended petition filed on May 5, 2006. Petitioner raises the following claims: (1) his trial counsel rendered ineffective assistance by failing to investigate and present evidence that his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), were violated by police officers during his interrogation; and (2) his rights under the Fifth, Sixth, and Fourteenth Amendments were violated when interrogating police officers ignored his unequivocal request for counsel.
In analyzing this close case, the undersigned emphasizes its closeness under the correct AEDPA standard of review -- unreasonableness in application of Supreme Court authority. The state court decision must be "jaw- dropping wrong" (i.e., even more than clear error) -- that after looking at all possible angles, the federal court asks rhetorically, what could the state courts possibly have been thinking in that no legitimate argument supports the state court finding when laid aside established Supreme Court authority. The undersigned knows that a petitioner will only rarely prevail under this standard as the state courts are as able to interpret binding precedent as well as the undersigned.
In their well written presentations, petitioner's counsel and respondent's counsel demonstrate that there are arguably legitimate, different legal resolutions to the issues presented. One can validly argue that the Court of Appeal got it wrong, and it might well have, but the undersigned cannot find that it was AEDPA unreasonable. While the issues presented task the brain, the jaw has not dropped.
With that said, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The AEDPA "worked substantial changes to the law of habeas corpus,"
establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In reviewing a state court's summary denial of a habeas petition, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590 (1991)).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record and supplementing it with bracketed material for context, the court finds this summary to be accurate and adopts it below.
Given the nature of the claims on appeal, a detailed recitation of the facts underlying defendant's convictions is not necessary. In short, defendant and two cohorts decided to rob Edward Sherriff. During the course of the robbery, one of the men choked Sherriff and then repeatedly stabbed him. In all, Sherriff was stabbed and slashed 24 times. The men stole cash, jewelry, and the victim's two vehicles.
Shortly thereafter, defendant left California for Oklahoma, where he ultimately turned himself in. [Petitioner was Mirandized by Oklahoma police after he turned himself into authorities on November 15, 1999; he refused to speak with the Oklahoma police at that time.] On November 19 or 20, 1999, [Sacramento] detectives interviewed defendant at a county jail in Oklahoma. The interview was videotaped. [fn] - Unbeknownst to petitioner, he was under video/audio surveillance from the time he entered the interrogation room. As the interview indicates, he was also separately audio recorded by the interrogating officers a short time into the actual introduction/questioning. The undersigned has personally viewed and listened to the pertinent parts of the video/audio tape.
Early in the interview, prior to being "Mirandized," the following conversation occurred:
"[DEFENDANT]: There wouldn't be any possible way that I could have a - a lawyer present while we do this?
"DET. WOODS: Well, uh, what I'll do is, um
"[DEFENDANT]: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.*fn1 "DET. WOODS: What - what we're going to do is, um - I have one philosophy and that's, uh, be right up - front and be honest, the same way we were with [two other suspects], and not bullshit you or try to hide anything from you, okay?
"[DEFENDANT]: Okay, sir my dad was worried about, about like, I'm not going to say how some detectives do it but like a lot of officers end up switching your words afterwords [ sic ]. "DET. WOODS: No, we're not playing no switch games or nothing else. In fact, if - if you wouldn't mind, I'd like to -
"[DEFENDANT]: So there-"DET. WOODS: - record whatever conversation we have and that way there will be no-you know, it's recorded and there-there's proof that we ain't playing no switch games or nothing else. Now, would you mind if I pulled out a recorder?
Officers did not stop the interview. However, they did not ask defendant any questions. Detective Woods told defendant he was being charged with homicide, robbery, and burglary, and that his cohorts had waived their rights and given statements to the police. The detective also indicated that if defendant told them he would not speak to officers without an attorney present, they would not be able to talk and get defendant's version of the events.
Detective Woods then told defendant he was going to advise him of his rights and make sure he understood those rights and then defendant could decide whether he wanted to speak with the detectives. Defendant asked if it would be possible for him to call his father; since he was over 18 years old, Detective Woods said no but that they could make arrangements when they were finished talking.
Detective Woods next advised defendant of his rights under Miranda. After having been fully advised of those rights, defendant indicated he understood them. Detective Woods then asked whether defendant wanted to talk to them now, and defendant said, "Let's talk." Defendant gave a lengthy statement to the police, in which he admitted his involvement in the robbery and murder.
Prior to trial, defendant sought to have his statement to the detectives suppressed, claiming he had "clearly and unequivocally requested the assistance of an attorney." The court conducted an evidentiary hearing on the motion, heard argument, and watched the videotape of the interview. The court denied the motion, finding that defendant's initial statement was not an assertion of his rights but a question. The court noted that following defendant's question, the officers did not ask him any questions until after defendant was Mirandized and waived those rights. Accordingly, the court concluded that "there was no [ Miranda ] violation, [and] that the officers were not required to terminate the interrogation."
The jury found defendant guilty of first degree murder and found the special circumstances allegations true; they also found him guilty of first degree robbery and first degree burglary.
Prior to sentencing, defendant filed a motion for a new trial, alleging the trial court had erred in failing to suppress his statements. The court again reviewed arguments from both sides, spent hours reviewing the videotape, and reviewed the transcript of the tape. The court reiterated its finding that defendant's initial statement to the officers about a lawyer was a question, not a "direct unequivocal request to be provided with an attorney on the spot." The court did not find that a reasonable officer would have heard defendant say get me a lawyer. It noted that even if a reasonable officer would have heard that, it was not an unequivocal request ...