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Varnum v. Kirkland

December 15, 2008



Petitioner, a state prisoner proceeding pro se, brings this application for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner challenges his first degree murder conviction in Siskiyou County, California, Case No. SCCRF00210. In four separate but related arguments, petitioner challenges the admission of his confession in trial court. He argues that the police violated his privilege against self-incrimination (claim 1) and his right to counsel (claim 4), resulting in an involuntary confession that was improperly admitted into evidence (claim 2). Finally, petitioner concludes that the alleged errors were not harmless beyond a reasonable doubt (claim 3). After careful consideration of the record and applicable law, it is recommended that the petition be denied.


The following facts are taken from the unpublished decision of the California Court of Appeal, Third District:

On October 30, 1999, Jeffrey Rasdal reported to the Klamath County Sheriff's Department that he witnessed defendant abusing his six-month-old daughter. At the time defendant, his girlfriend, and their daughter lived with Rasdal in a mobile home in Klamath Falls, Oregon. Defendant was arrested for child abuse on November 30, 1999, and was released the next day. After being released from custody, defendant moved out of Rasdal's mobile home and into a travel trailer next to his aunt's house in Klamath Falls. Defendant discovered on January 10, 2000, that Rasdal was the one who reported him for child abuse. The next day defendant went to Rasdal's mobile home and asked him to go for a ride. At defendant's direction Rasdal drove to the Red Rock Road area, in California, where Rasdal stopped to go to the bathroom. When Rasdal was finished, defendant walked up behind him and shot Rasdal in the back of the head. On January 21, 2000, detectives from the Siskiyou County Sheriff's Department first interviewed defendant. Defendant was informed that the interview was voluntary and he was not in custody. The interview lasted approximately three hours.

Detectives tried to interview defendant once again on January 28, 2000. Two detectives, Detective Krieger from the Klamath County and Detective Glines from Siskiyou County, went to defendant's trailer in an attempt to persuade defendant to return to the sheriff's station and give another statement. If defendant refused to come to the sheriff's station voluntarily, the detectives intended to arrest him. Initially, defendant refused to come out of his trailer. He told the detectives that he did not want to talk to anyone. Eventually, defendant left his trailer, walked to his aunt's house, and called his father. After completing the phone call, defendant began to walk back to his trailer. On the way back to the trailer defendant pointed at Krieger and said "Fuck you, talk to my lawyer."

Defendant was arrested and transported by a Klamath County deputy sheriff to the sheriff's station where Detective Sergeant Villani of Siskiyou County was waiting. Villani was informed of defendant's statement that the detectives could talk to his lawyer. Earlier Krieger had arrested defendant on charges of child abuse, and there was "bad blood" between the two of them. Villani questioned defendant to clarify whether he was refusing to talk with the Siskiyou County detectives or just the Oregon detectives. Villani explained to defendant that the Siskiyou County detectives were not investigating the child abuse charges, they just wanted to talk about Rasdal's murder. Defendant told Villani that his father said he should not say anything without an attorney. Villani informed the defendant that it was his right, not his father's.

Defendant then agreed to talk to the Siskiyou County detectives, and Villani read defendant his Miranda rights. ( Miranda v. Arizona (1966) 384 U.S. 436, 444-445 [16 L.Ed.2d 694, 706-707].) Defendant waived his rights and gave a statement. Defendant's interrogation lasted approximately six hours. Ultimately, defendant confessed he murdered Rasdal because Rasdal reported defendant for child abuse.

(Opinion at 2-4.*fn1

Petitioner was convicted of first degree murder. He was found to have committed the murder in order to prevent the testimony of a witness and found to have used a firearm. (Opinion at 1.) Petitioner was sentenced to life in prison without the possibility of parole to be served consecutive to an indeterminate term of 25 years to life, based on a sentence enhancement for using a firearm in commission of a murder. (Opinion at 1.) Petitioner's conviction was affirmed on appeal to the California Court of Appeal, Third District. (Opinion at 11.) The California Supreme Court denied review.*fn2 Petitioner filed a petition for writ of habeas corpus in the Siskiyou County Superior Court, which was denied without written opinion.*fn3 The opinion of the California Court of Appeal, Third District, is the last reasoned state court decision for AEDPA purposes.


An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Nor can habeas corpus be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the 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 proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, ...

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