The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition; the Magistrate Judge's Report and Recommendation ("R&R"); the Objections to the R&R filed on December 18, 2009;*fn1 and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.
Petitioner states that between June 3 and 4, 2000, detectives continued to question him, even though he had previously invoked his right to remain silent.
(Objections at 3.)*fn2 Petitioner also notes that the Court of Appeal referred to the police questioning in passing. (Id. (citing Lodged Document ("LD") 8 at 10 ("Detectives managed to elicit some additional information from defendant before terminating the interview.").) Petitioner contends that this post-invocation questioning violated his constitutional rights. (Objections at 3.)
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). "[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed. 2d 313 (1975).
Petitioner invoked his right to remain silent while being questioned by the police in the early morning hours of June 3, 2000. (LD 1 at 457, 504-05.) During the remainder of the interview, Petitioner nonetheless answered the police's additional questions. (Id. at 506-11.) The tape of the interview was played to the jury, and a transcript of the tape was given to the jury to assist them in understanding the tape. (LD 4 at 3018.)
Although Petitioner alluded to this questioning in his California briefing (LD 5 at 24 (Court of Appeal opening brief) & LD 10 at 12-13 (California Supreme Court petition for review)), Petitioner did not claim that any statements he made during this questioning should have been excluded at trial. Instead, he challenged only the admission of the statements he made to Jordan, the informant. (LD 5 at 31-32; LD 10 at 11.)*fn3
After Petitioner invoked his right to remain silent, the police asked the following questions and Petitioner made the following answers:
WHELAN: Would you like some more water?
PETITIONER: No, I'm not --
WHELAN: Would you like some coffee?
PETITIONER: I don't drink coffee. * * *
WHELAN: You don't want to talk to me anymore?
PETITIONER: Why should I? * * *
WHELAN: Let me ask you one thing about your shoes at the house. Are those the clothes at the motel, are those all yours?
PETITIONER: Not all of them.
WHELAN: Does it belong to somebody ...