The opinion of the court was delivered by: Charlene H. Sorrentino United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Lloyd Phillip Locke is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He challenges the 2004 judgment of conviction entered in the Sacramento County Superior Court, case number 03F08925. Petitioner alleges that his custodial confession was illegally obtained. Specifically, he asserts that he invoked his right to silence during an exchange with Deputy Oania, after which Detective Bielcik improperly reinitiated questioning. Petitioner alleges that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and also that they were involuntary.
The following background summary was set forth in the unpublished opinion of the California Court of Appeal, Third District, case number C048693.*fn1
Following a fight with her father (the defendant), the 17-year-old victim reported he had assaulted her with a knife and a stick, had pointed guns at her, and had fired at least one of them. She drew a map of the house, identifying where the weapons could be found, and consented to a search of the house for weapons. She also told officers defendant had been sexually molesting her since she was five.
Deputies contacted defendant around 3:30 p.m. He admitted threatening his daughter with a knife and admitted drinking whisky after fighting with her. He had a strong odor of alcohol, spoke quickly, and moved from side to side as he spoke.
Placed under arrest for assault with a deadly weapon, making criminal threats, and child abuse, defendant consented to a search of the house for weapons.
When Deputy Oania read defendant his Miranda rights and asked if he understood them, defendant responded, "No." Deputy Oania checked the "No" box on the written Miranda advisement form next to the question, "Do you understand each of these rights I have explained to you?" and wrote "Oania" on the form. Deputy Oania did not question defendant further.
Deputies searched the house, located the knife and stick where both defendant and his daughter had indicated they could be found, found three firearms, and discovered bullet holes inside the residence.
Meanwhile, defendant remained in custody and Detective Bielcik, aware of the allegations of sexual abuse, pressed defendant to provide consent to an unrestricted search of the house. At approximately 7:20 p.m., defendant consented to an unrestricted search of the house.
Deputies conducted a second, complete search of the house between approximately 8:00 and 10:00 p.m., during which they seized homemade videotapes depicting sex acts.
Simultaneously, Detective Bielcik began to interview defendant. Defendant reported he had snorted $20 worth of crank at about 2:00 a.m. that morning, drank about four ounces of whiskey shortly after noon, smoked marijuana at about 3:00 in the afternoon, but stated he no longer felt under the influence of any substance. At about 9:30 p.m., Detective Bielcik re- Mirandized defendant. Bielcik "slowly" read the advisement form to defendant, who responded that he understood his rights. Defendant said, "I'll talk to you," signed the waiver form, and initialed statements that he understood his rights and, with those rights in mind, wished to speak to officers.
Defendant then told Detective Bielcik that he and the victim were consensual "sexual partners" and had engaged in sex acts "uncountable times," beginning when she was six and a half years old and continuing until the day before his arrest.*fn2 He was charged with 39 counts of sex offenses committed between 1991 and 2003 (including rape, lewd acts, and oral copulation), two counts of felony assault, and one count of making a criminal threat.
Defendant moved to suppress (1) the nonweapon evidence seized from his home and (2) his confession to Detective Bielcik, arguing that his statements and his second, unqualified consent to search were involuntary products of coercion by Detective Bielcik. He also asserted that he had invoked his right to remain silent when he received the first Miranda advisements from Deputy Oania, thereby rendering unlawful Detective Bielcik's reinitiating questioning.
After a hearing, the trial court granted defendant's motion to suppress evidence found in the second search of his house, on the ground defendant's unqualified consent to search his house was involuntary because defendant consented only after trying "no less than 28 times" to avoid doing so, thereby compelling the inference defendant "no longer felt free to decline the repeated requests[.]" But the court denied defendant's motion to suppress his statements to Detective Bielcik. The court noted that when defendant was first read his Miranda rights by Deputy Oania in the afternoon, he showed evidence of intoxication and neither invoked his right to remain silent nor requested an attorney. After several hours had passed and "the effects of the alcohol and drugs [were allowed] to dissipate," Detective Bielcik did not act improperly in re-Mirandizing defendant, or in taking his statement after defendant responded "I'll talk to you" and signed the waiver. (C048693 opinion at 1 -2.)
On December 21, 2004, petitioner pleaded no contest to four counts of committing forcible lewd acts on a child, two counts of committing non-forcible lewd acts on a child, and one count of making a criminal threat, during which he personally used a firearm.*fn3 In exchange, the prosecution agreed to dismiss the other 35 counts alleged in the information. Petitioner was sentenced to the stipulated sentence of 49 years. (C048693 opinion at 2.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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)). 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 ...