The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER SUPPLEMENTING AND AMENDING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all of the records and files herein, the Report and Recommendation of United States Magistrate Judge Rita Coyne Federman, and the objections filed by respondent. Based on its de novo determination of the issues presented, the court concurs with and adopts the findings and conclusions set forth in Judge Federman's Report and Recommendation as supplemented and amended by this order:
Respondent asserted three objections to Judge Federman's Report and Recommendation. The court considers each in turn.
A. Whether the Supreme Court's Decision in Harrison v. United States Constitutes Clearly Established Federal Law
Judge Federman found that, in concluding that the admission of petitioner's confession obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), was harmless error, the California Court of Appeal failed to consider the United States Supreme Court's opinion in Harrison v. United States, 392 U.S. 219 (1968), and thus reached a decision that was contrary to clearly established law. Respondent objects to this finding on the basis that Harrison is not a decision of constitutional law, but rather is dependent on certain federal rules or statutes that are not applicable in this case. Contrary to respondent's contention, Judge Federman concluded that Harrison had constitutional underpinnings. To resolve this question, a review of the complex factual and procedural background of Harrison is warranted.
Eddie Harrison was arrested on March 19, 1960 for a theft that occurred on March 18, 1960, Harrison's eighteenth birthday. Harrison v. United States ("Harrison I"), 359 F.2d 214, 219 (D.C. Cir. 1965). On March 21, 1960, police officers questioned Harrison regarding a robbery and murder that occurred on March 8, 1960, while Harrison was still a minor. The interrogation took place while Harrison was in jail awaiting grand jury proceedings on the theft charge. Id. at 219-20. The officers brought with them to the jail two alleged co-conspirators in the murder, each of whom had previously confessed, and each of whom recounted for Harrison his confession implicating Harrison as the shooter.*fn1 The officers asked Harrison if he wished to make a statement regarding the role each of the three co-conspirators had played in the robbery and homicide; Harrison said yes. Harrison made an oral statement regarding the co-conspirators' plan to rob the victim, and confessed to holding the shotgun; he said, however, that the victim had slammed a glass door shut, that the glass hit the shotgun, and that the shotgun unintentionally discharged. Id. at 220.*fn2 Several hours after Harrison's statement, officers returned to the jail with Harrison's co-conspirators and reduced Harrison's statement to writing. Id. at 222.
A panel of the D.C. Circuit Court of Appeals reviewed the admission by the district court of Harrison's confessions and issued a split decision.*fn3 Judge Donaher, writing for the panel, held that Harrison had not shown that his oral confession was involuntary, and concluded there was no due process violation as a result. Judge Donaher declined to apply Harling v. United States, 295 F.2d 161 (1961) (en banc), in which the D.C. Circuit held that admissions by a minor in juvenile proceedings must be excluded in later adult criminal proceedings. Id. at 163-64. Judge Donaher noted that, regardless of Harrison's age, he was not incarcerated in connection with a juvenile proceeding. Harrison I, 259 F.2d at 221. He held, however, that Harrison's written confession should have been excluded under the rule of Mallory v. United States, 354 U.S. 449 (1957), which required the exclusion of confessions elicited during prolonged interrogation in violation of the prompt arraignment requirement of Rule 5(a) of the Federal Rules of Criminal Procedure. Id. at 222. Judge Donaher also held than an unspecified but incriminating statement Harrison made to a jail classification officer was inadmissible under Killough v. United States, 336 F.2d 929 (D.C. Cir. 1964). The Killough court had held that a confession made to a jail classification officer was not admissible because the questioning was intended to serve limited classification purposes and the prisoner was told that any statements he made would not be used against him. Killough, 336 F.2d at 931-32. Judge Miller wrote separately and joined Judge Donaher's opinion to the extent it addressed Harling. He was otherwise silent regarding Harrison's confessions. Harrison I, 359 F.2d at 222 (Miller, J., concurring). Judge Washington concurred, but opined that all of Harrison's confessions were excludable under Harling. Id. (Washington, J., concurring).
Following the panel decision, the D.C. Circuit Court of Appeals ordered rehearing en banc on the issue of the admissibility of Harrison's oral confession. The en banc court extended Harling to require exclusion of any confession made by a prisoner while within the exclusive jurisdiction of the Juvenile Court. It found that Harrison had been within the exclusive jurisdiction of the Juvenile Court from the moment he committed his crime until the Juvenile Court waived jurisdiction. Harrison I, 359 F.2d at 223-29 (en banc).
As a result, the D.C. Circuit remanded Harrison's case for a third trial.*fn4 Because it could no longer rely on Harrison's out-of-court confessions, the government introduced portions of Harrison's testimony from the second trial during its case in chief. Harrison v. United States ("Harrison II"), 387 F.2d 203, 208 (D.C. Cir. 1967). The D.C. Circuit held that reading Harrison's prior testimony into the record did not violate his rights. In particular, it concluded that the "fruit of the poisonous tree" doctrine was not applicable because the relationship between the erroneous admission of the jailhouse confessions and Harrison's subsequent trial testimony was so attenuated as to dissipate any taint. Id. at 209-10.
The Supreme Court reversed, noting that "petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained...." It held that "the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby -- the fruit of the poisonous tree, to invoke a time-worn metaphor." Harrison v. United States, 392 U.S. 219, 222 (1968) (footnote omitted). The Supreme Court relied on the general rule concerning the fruit of the poisonous tree doctrine articulated in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). It stated that the "'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.'"
Harrison, 392 U.S. at 222 (quoting Silverthorne, 251 U.S. at 392).*fn5 The Court held that because Harrison had testified "in order to overcome the impact of confessions illegally obtained and hence improperly introduced,... his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." Id. at 223.
The exclusionary rule mandates that evidence derived from constitutional violations not be used at trial because illegally derived evidence is considered "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The exclusionary rule serves to deter constitutional violations by denying the government the benefit of those violations; as a result, "the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Segura v. United States, 468 U.S. 796, 804 (1984). As the Supreme Court in Wong Sun explained, it is important to determine whether the evidence in question derived directly from exploitation of the constitutional violation or whether it was obtained "by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488.
Both Wong Sun and Silverthorne concerned an underlying Fourth Amendment violation. In Michigan v. Tucker, 417 U.S. 433 (1974), the Supreme Court considered the scope of the exclusionary rule in light of Miranda and Wong Sun. It noted that the "Court [had] said in Miranda that statements taken in violation of the Miranda principles must not be used to prove the prosecution's case at trial," id. at 445, and considered how that rule applied to a situation in which the defendant's constitutional privilege against self-incrimination had not been infringed, but police had "departed... from the proplylactic standards later laid down by this Court in Miranda to safeguard that privilege." Id. at 446. Specifically, the police had used Tucker's nonMirandized confession to find another witness, whose testimony Tucker then sought to suppress. Id. at 437-38. The Court declined to exclude the witness' testimony, noting that Tucker's nonMirandized confession had been excluded, and that excluding the testimony of the third party witness would not "significantly augment[ ]" the deterrent effect of Miranda on police conduct. Id. at 447-48. Because the confession had been voluntary and thus had not been obtained in violation of the Fifth Amendment, the Court concluded that utilizing the fruits of the confession did not violate Wong Sun.
Some years later, the Court addressed the distinction between application of the exclusionary rule in the Fourth and Fifth Amendment contexts in Oregon v. Elstad, 470 U.S. 298 (1985). There it stated:
"[A] procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the 'fruits' doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits.... Where a Fourth Amendment violation 'taints' the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence.... Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation. "The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." Id. at 307-08 (footnotes omitted) (emphasis original).
Because a statement can be voluntary, as required by the Fifth Amendment, even if obtained in violation of Miranda, the Court held that the reasoning of Tucker "applie[d] with equal force when the alleged 'fruit' of a non-coercive Miranda violation [was] neither a witness nor an article of evidence but the accused's own voluntary testimony." Id. at 308. See also id. ("Since there was no actual infringement of the suspect's constitutional rights [in Tucker], the case was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed. In deciding 'how sweeping the judicially imposed consequences' of a failure to administer Miranda warnings should be, the Tucker Court noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness' testimony"). The Court therefore concluded that a subsequent Miranda "warning [given after the making of an unwarned statement] conveys the relevant information and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an 'act of free will.'" Id. at 311 (quoting Wong Sun, 371 U.S. at 486).*fn6
In reaching this result, the Court considered Elstad's argument that "he was unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him." Id. at 316 (emphasis original). The Court noted that it had never "embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness." Id. It noted, however, that "[i]f the prosecution has actually violated the defendant's Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison[ ] precludes use of that testimony on retrial. 'Having "released the spring" by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.'" Id. at 316-17 (quoting Harrison, 392 U.S. at 224-25).*fn7
It is clear from a review of Harrison and subsequent Supreme Court cases that Harrison announced a rule of clearly established federal law. The scope of this rule has been described by the Ninth Circuit as follows:
"A defendant's testimony in a prior trial is normally admissible in subsequent proceedings. Harrison states that an exception to this rule arises when the defendant's prior testimony was compelled by the need to counter evidence that was illegally obtained and improperly admitted." United States v. Mortensen, 860 F.2d 948, 951 (9th Cir. 1988).*fn8
See also Luna v. Massachusetts, 354 F.3d 108, 112 (1st Cir. 2004) ("The premise of Harrison was that the original confession (actually several confessions...) had been wrongfully obtained under federal law").
The Third Circuit has held that Harrison "mandate[s] what is essentially an exclusionary rule inquiry where there appears to be a link between a constitutional violation and a defendant's subsequent decision to take the stand." United States v. Pelullo, 173 F.3d 131, 136 (3d Cir. 1999). Thus, "when the prosecution introduces an inadmissible confession at trial and thereby compels the defendant to testify in rebuttal, use of the defendant's testimony at a later proceeding is barred." United States v. Baker, 850 F.2d 1365, 1370 (9th Cir. 1988).
The fact that the underlying confession in Harrison was illegally obtained not because it violated constitutional protections, but because it violated non-constitutional rules is beside the point. Harrison sweeps more broadly than respondent acknowledges: If a defendant testifies "in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony [is] tainted by the same illegality that rendered the confessions themselves inadmissible." Harrison, 392 U.S. at 222. The court need not determine whether the exclusionary rule announced in Harrison is constitutionally based. Respondent does not dispute the fact that Harrison articulates a rule of federal law; that rule "prohibits the use of any testimony impelled [by an illegal confession as] the fruit of the poisonous tree...." Harrison, 392 U.S. at 222 ("[T]he 'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all,'" quoting Silverthorne, 251 U.S. at 392). It would be anomalous if this exclusionary rule were to apply confessions obtained in violation of federal rules or statutes, but not to confessions obtained in violation of the federal Constitution or prophylactic rules adopted by the Supreme Court to safeguard constitutional rights.
Respondent's argument that § 2254(d)(1) applies only to clearly established constitutional law is misplaced. The plain text of the statute reveals the fallacy in the contention; it states that state court decisions must not be contrary to "clearly established Federal law." It does not limit the "contrary to" rule to constitutional principles only. Cf. Medellin v. Dretke, 544 U.S. 660, 680 (2005) (noting that "a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country" and consequently that a non-constitutional rule embodied in a treaty may constitute clearly established federal law under AEDPA); Rankins v. Murphy, 198 F.Supp.2d 3, 6 (D. Mass. 2002) (finding that statutory claims, such as a violation by the state court of the federal wiretap statute, may be cognizable under § 2254).
Respondent's reliance on Early v. Packer, 537 U.S. 3 (2002), is also misplaced. In Early, the Supreme Court overturned the Ninth Circuit's conclusion that clearly established federal law prohibited a state court from giving certain instructions to a jury that urged it to engage in further deliberations in order to reach a verdict. Although the Supreme Court had prohibited the giving of such instructions in federal court trials, a subsequent Supreme Court decision stated in dicta that the earlier opinions had been based on the Court's supervisory power over federal courts rather than any provision of the Constitution. Id. at 9-10 (citing Lowenfield v. Phelps, 484 U.S. 231, 239 n. 2 (1988)). Early is plainly distinguishable. Harrison did not rely on the Court's supervisory powers over federal courts in evaluating the scope of the exclusionary rule; rather, it relied on federal constitutional cases such as Silverthorne and Wong Sun. There is, moreover, no intervening dicta (as there was in Early) stating that Harrison is not based on federal law. To the contrary, the statement in Elstad, whether or not dicta,*fn9 establishes that Harrison's holding is a matter of clearly established federal law.
Consequently, having reviewed de novo the findings of Judge Federman, the court finds, for the reasons stated herein, that the California Court of Appeal's decision was contrary to clearly established Supreme Court precedent, and that petitioner's trial testimony was induced by the government's introduction of his confession.*fn10 For this reason, respondent's first objection is overruled.
At times a proposition advanced by the court will support the court's decision to grant judgment to the plaintiff or defendant, but indirectly or remotely. There is no line demarcating a clear boundary between holding and dictum. What separates holding from dictum is better seen as a zone, within which no confident determination can be made whether the proposition should be considered holding or dictum." Judge Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249, 1258 (2006).
In this case, it is not necessary for the court to determine whether Elstad's discussion of Harrison is dictum or holding. Plainly, if part of the holding, respondent's objection fails. Because the court finds that Harrison is clearly established federal law, however, the reference in Elstad, even if dictum, does not affect the result.
The court notes that, unlike the present case, the statement in Lowenfield that prior cases addressing jury instructions did not govern proceedings in state courts was plainly dicta. In two sentences in a footnote, the Court "note[d]" that Jenkins v. United States, 380 U.S. 445 (1965), was not a constitutional law case, but rather a case concerning the Supreme Court's supervisory powers. Id. at 239 n. 2. The Court then proceeded to analyze whether the state court's jury instruction was coercive, and its determination that it was not is the holding of the case. Id. at 241 ("We hold that on these facts the combination of the polling of the jury and the supplemental instruction was not 'coercive' in such a way as to deny petitioner any constitutional right"); cf. Leval, 81 N.Y.U. L. REV. at 1258 ("Nonetheless, to say that the distinction between holding and dictum is sometimes murky does not mean that it is always murky. In many instances there can be no doubt that the proposition in question played no role in the court's justification of its judgment"). Giventhe fact that its discussion of Jenkins was clearly dicta, Lowenfield indicates that the Supreme Court has used dicta regarding its past decisions to clarify whether or not a particular case presents a question of clearly established federal law binding on the state courts.
B. Respondent's Objection to Findings Regarding the Underlying Miranda Violation
1. Whether De Novo Review is Appropriate
Respondent also objects to Judge Federman's finding that respondent conceded the correctness of the California Court of Appeal's finding that petitioner's confession was obtained in violation of Miranda. She asserts that this state court finding, which favors petitioner, is subject to de novo review on federal habeas review. In her Report and Recommendation, Judge Federman noted that, even employing a de novo standard, she would find a violation.*fn11
In support of this objection, respondent cites Daniels v. Lafler, 501 F.3d 735 (6th Cir. 2007). There, a state trial court, frustrated by the fact that appointed counsel was not promptly preparing for trial, replaced the attorney on its own motion with a lawyer who could try the case on the trial date that had been set. Id. at 738. At the next hearing, defendant attempted to raise an objection, but was told he could speak only through his new appointed counsel. The attorney did not object. Id.
The Michigan Court of Appeals, the last state court to consider defendant's Sixth Amendment claim that he had been denied the right to counsel of choice, concluded that defendant had acquiesced in the replacement of counsel and that the trial court had good cause to replace counsel. Id. at 739. The state court also found, however, that, had this not been the case, it would have resolved the Sixth Amendment question in defendant's favor. Specifically, it stated that, had there not been consent, it would have applied the rule that "[a]fter adversary judicial proceedings have been initiated, a trial court's removal of a criminal defendant's appointed counsel for any reason other than gross incompetence, physical incapacity, or contumacious conduct violates the defendant's constitutional right to counsel." Id. at 739-40 (quoting People v. Daniels, No. 210014, 2000 WL 33406706, *3 (Mich. Ct. App. Oct. 3, 2000)). Given the state court's holding regarding consent, the Sixth Circuit characterized this finding as the "state court's treatment of an issue in a manner favorable to the petitioner but not dispositive of his claim for relief." Id. at 740. It stated:
"In this situation, we think that de novo review is appropriate. We should not apply AEDPA deference to the state court's pro-petitioner resolution of the issue because AEDPA's standard of review is 'a precondition to the grant of habeas relief ("a writ of habeas corpus... shall not be granted" unless the conditions of § 2254(d) are met), not an entitlement to it.' Fry v. Pliler, 551 U.S. 112[, 119] (2007). Nor should we apply AEDPA deference to a hypothetical ruling against the petitioner on the disputed constitutional question: 'AEDPA applies only to claims 'adjudicated on the merits in State court proceedings,' and the standard of review it mandates depends on an assessment of an actual decision made by the state court.' Eddleman v. McKee, 471 F.3d 576, 583 n. 3 (6th Cir. 2006) (emphasis in ...