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Jimmy Burton v. Warden G. Lewis


February 27, 2012


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 23, 2011. Respondent filed an Answer on October 14, 2011, contending that the Petition was partially unexhausted. On October 28, 2011, Petitioner filed a "Motion for Stay and Abeyance," conceding that the Petition was partially unexhausted, and moving for a stay of the Petition.

In an Order filed November 9, 2011, the Court denied Petitioner's motion for a stay. In the same Order, the Court afforded Petitioner the opportunity to dismiss the entire action without prejudice by filing, within thirty (30) days of the date of the Order, a "Notice of Voluntary Dismissal." The Order advised Petitioner that, in the event Petitioner elected not to file a "Notice of Voluntary Dismissal" within the requisite time period, the Court would order briefing on the merits of Petitioner's single exhausted claim (Ground One of the Petition).

Petitioner failed to file a "Notice of Voluntary Dismissal" within the allotted time, thereby electing to delete the unexhausted claims from the Petition and to proceed on the merits of his exhausted claim. Therefore, on December 21, 2011, the Court issued an Order requiring Respondent to file a Supplemental Answer addressing the merits of Petitioner's exhausted claim. On January 10, 2012, Respondent filed a Supplemental Answer. Petitioner did not file a Supplemental Reply within the allotted time.


A jury found Petitioner guilty of second degree murder, found true various gun enhancements, and found true the allegation that the offense was committed for the benefit of a criminal street gang (Reporter's Transcript ["R.T."] 5103-05; Clerk's Transcript ["C.T."] 451-53). Petitioner received a sentence of fifteen years to life (R.T. 5711-12; C.T. 485-86).

The California Court of Appeal affirmed (Respondent's Lodgment 5). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7).


Petitioner contends that the admission of Petitioner's jailhouse conversations allegedly violated the Confrontation Clause, California's hearsay rule, and Petitioner's constitutional right to remain silent.


The following summary is taken from the opinion of the California Court of Appeal in People v. Burton, 2010 WL 3749273 (Cal. App. Sept. 28, 2010). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

[Prosecution Case]

Desiree S. was 17 years old at the time of the shooting incident on the evening of June 4, 2007. She lived in Compton and was familiar with the Compton Transit Center, which was located on Willowbrook Avenue across from the Greyhound station. She was at the transit center at the time of the shooting. It was still light outside. Desiree arrived at the transit center after a train trip from Carson, and she had her bicycle with her. Desiree walked her bicycle from the train platform toward the bus station. As she approached a stop sign, an African-American male, similar to her age, came up and asked, "Can I see your bike real fast"? She replied that she had to go, walked away, and decided to ride home (northbound on Willowbrook) because she just missed the bus. She had seen the same male a handful of times before, standing in a group and offering to sell day passes. The male rode his bicycle across the street toward the Greyhound station.

Desiree crossed the street and was mounting her bicycle when she heard gunshots. She looked in the direction of the shots, toward the transit center, and saw the victim, Hardy, an African-American male, lying on the ground. She believed Hardy was a member of the Nutty Blocc Crips.*fn1 She had previously seen him at the train station, offering to sell train tickets or bus passes. Shortly before the shooting, Desiree had seen Hardy standing with a group in front of the Greyhound station.

Deputy Jose Racho and his partner responded to the transit center at approximately 7:00 p.m. Within five minutes, Deputy Racho saw fire department personnel treating Hardy, who was lying face down in front of the transit center's entrance. Hardy was transported to the hospital and pronounced dead shortly thereafter from two gunshot wounds to his back, one of which fatally penetrated his vital organs. Hardy suffered abrasions to his cheek and knee, and a laceration on his chin. There was a bullet lodged in the wall of the transit center, near the victim.

Examination of the two bullets showed they were fired from the same weapon-either a .38-caliber special semiautomatic or a .357-caliber magnum revolver. When Detective Q. Rodriguez arrived at the shooting scene, the paramedics had cut away clothing from the victim and transported him to the hospital. No weapon was found in the clothing. Additional investigation gave no indication that Hardy was armed.

Deputy John Orozco assisted other officers in containing the shooting scene and looking for witnesses. Desiree rode up to him on her bicycle. The deputy took her name and address and asked if she knew what had happened. She responded, "Semi, a little bit" and went home.*fn2 Later that evening, police officers went to her home and brought her to the station, accompanied by her father. She told the interviewing officer, Detective Shaun McCarthy, that the male who asked to use her bike was a twin.*fn3 She described him as being dark-skinned and could tell the twins apart because one had a scar on his face.*fn4 She had seen him and the victim at the station before, selling day passes on the platform.*fn5 Desiree had heard stories that the twins were "crazy and to look out for them." Desiree heard at least two gunshots, looked over, and saw Hardy fall to the ground.

The jury heard a recording of Desiree's interview with Detective McCarthy. In these prior statements, she related details of the shooting that she either denied or had forgotten at the time of trial.*fn6 Desiree said that on her way from the train to the bus stop, she walked her bicycle past a group of Acacia Blocc Crip members, whom she recognized as youths who typically sold day passes. The victim was from the Nutty Blocc Crips. The Acacia members were "hittin[g] up" passersby. She had "no doubt" the male who asked for her bike was from the Acacia group. The male returned to that group after she refused, and he traded bikes with someone else in that group. She heard someone in the group say, "Give it to me." The Acacia member who had asked her for her bicycle instead got the bicycle from his twin brother and rode across the street toward the victim. Another male from the Acacia group - not defendant's twin brother - went with him. Within a minute, she heard between two and five gunshots and saw the victim fall to the ground. All the Acacia members, except one, ran or rode away on bicycles. Desiree said the two brothers were identical twins, but one could be identified by a scar under his eye.

A second interview with Desiree took place at the station a few hours later. Her father was present. Detective Peter Hecht said that he and Desire [sic] viewed numerous photographs of potential suspects on his computer. She identified one photograph as being "one of the twins" who was present at the shooting, but not the shooter. She had previously rejected that photograph as being too dark in a photographic lineup shown to her by Detective McCarthy. She also identified another suspect from the computer and from a photographic lineup as someone who resembled the shooter, but she could not be sure. The shooter was the twin with the scar on his face. Desiree said the police did not pressure her to give information.

Desiree was interviewed again on July 31, 2007, by Detectives McCarthy and Rodriguez. At that time, she recalled hearing someone in the group of males with defendant say, "this nigga in our hood, you know, he got us fucked up" and "[s]omebody got to do it." The group of males argued about who would take the gun, before one of them handed it to a tall, skinny youth, who was "always with the guy with the scar." A few hours later, the detectives asked Desiree to view photographs to identify that person. She thought the photograph of Marcus Render resembled the one who handed over the gun, but she was only 70 percent certain.

Prior to that time, on July 9, 2007, at 10:00 p.m., Deputy Oscar Calderon arrested co-defendant Darius Djuan Oliver at the Metro Blue Line train station. Oliver was standing by the bicycle racks. When he saw the officers, he dropped a firearm and fled on a bicycle. The firearm was a .25-caliber Raven semiautomatic handgun. Oliver waived his Miranda rights.*fn7 He denied having a gun, but admitted being an active member of the Acacia Blocc Crips. Oliver's moniker was Tech. Oliver said that defendant (who had been previously arrested) was a member of the Almond Blocc Crips. The two knew each other and got along, having grown up together in the same neighborhood.

Detective Henry Aguilar took part in the search of defendant's residence on August 8, 2007, in which the officers recovered five .38-caliber "special" bullets from the garage. Detective Hecht found gang photographs. In one, defendant was making the hand sign of the Crips gang.

Detective Rodriguez testified that defendant was placed in an isolation jail cell equipped with a recording device. Render was placed in the cell with defendant. After some time, Render was replaced with Oliver and subsequently replaced with defendant's twin brother, James Burton. Their conversations were recorded surreptitiously. At one point, during a conversation between defendant and Oliver, the latter said he "heard the Greyhound do got cameras." Defendant agreed, adding that he had just talked to "Loco" -and the police "found bullets in his house."*fn8 Oliver asked, "How the fuck they know all of us was involved in that?" Defendant replied, "Somebody snitched at the train station."

In a conversation between defendant and Render, defendant said, "Tech did it. I can't lie." He asserted that somebody was "snitching at the train station." Defendant also said, "I'm like from Almond Bloc[c]." Defendant said that he "was at home" at the time of the incident. Render added that he "wasn't there. Damn. Somebody snitchin[g]. How the fuck they gonna know I was there?" Defendant replied, "Somebody at the train station." Defendant repeatedly denied being present. "I was not there, boy." The tape ended with defendant repeatedly protesting his innocence. In the subsequent conversation with defendant and Render, however, defendant said, "Damn, Cuz. I had to fuck up and go to that train station that nigger [sic]."

On September 27, 2007, Detectives McCarthy and Rodriguez interviewed defendant, who admitted seeing Hardy at the train station.*fn9 Defendant said that Render was his "other crime partner." Defendant and his brother are from the Almond Blocc Crips. The Acacia Blocc Crips and Nutty Blocc Crips are enemies; the victim was a member of the latter gang.

Defendant said he did not see the shooting because he was at the Greyhound station at the time. Defendant admitted being with Oliver that day. It was Oliver who gave the handgun to defendant after the shooting. Defendant took it home, and Oliver later took it back. Defendant insisted he did not shoot Hardy or see the shooting, but believed Oliver was the shooter. Defendant admitted being on a bicycle, but he was behind the bus station and heard five gunshots. The weapon was a brown and black .38-caliber handgun.

According to defendant's statement, Oliver admitted shooting Hardy because the two were members of rival gangs. At one point, defendant admitted riding his bicycle toward Hardy and saying, "what's up," but defendant rode back before the shots were fired. He rode away because he refused to assist Oliver in the shooting.

Detective Hecht testified as a gang expert. The Acacia Blocc Crips is a Compton street gang with approximately 80 members. Its territory is adjacent to the Compton Transit Center, which is neutral gang territory. The gang commits narcotics sales, assaults, carjackings, and murder. Oliver has a tattoo that insults the Nutty Blocc Crips.

The Almond Blocc Crips is another Compton gang, which is a subset of Acacia Blocc Crips, with approximately 15 members. Defendant is an active member of the Almond Blocc Crips, as is James. Render is an Almond Blocc Crip. Hardy was an active member of the Nutty Blocc Crips. For the past seven years, the two gangs had been "warring" with repeated shootings of rival members. In gang parlance, a "burner" is a gun. To snitch is to inform against a gang member or to cooperate with law enforcement against a gang member, and doing so, makes the person subject to gang attack. Gang members typically commit crimes with other gang members, rarely by themselves. Two weeks before the Hardy killing, there was a drive-by shooting by the Nutty Blocc Crips against an Acacia Blocc Crip. One of the victims was Oliver's brother.

Defense [Case]

Nicolas Quintero was at the transit center waiting for a bus when he heard gunshots and saw a white pickup truck driving southbound on Willowbrook on the wrong side of the street. Quintero took cover and did not see anyone inside the truck. He did not tell the police that there were two African-American males inside. Nor did he say that he saw the passenger shooting from the truck. However, Quintero stated (in Spanish) to one of the deputies that he saw two "male Black adults inside a white pickup truck" and the passenger was "shooting from the passenger side at the victim who was standing at the courtyard of the Compton Transit Center." Quintero told Detective Rodriguez that he could not identify the occupants of the pickup truck and saw no weapon.

Carlos Valenzuela was a security officer employed by the City of Compton. While on duty at the transit center, he heard gunshots as he prepared to lock up the transit center. From inside the transit center's main entrance, he saw Hardy run past him and fall to the ground. A white pickup truck sped past, going the wrong direction. He saw no one fleeing on a bicycle.

Oliver's mother testified that she had two other sons, Tyler and Tylan. Detective Hecht talked to Tyler in May 2007. While she was present, Tyler never told the officer that a Nutty Blocc Crip or "Little Mike" was the person who shot at him. She did not believe Tyler was a victim of a shooting. Professor Gregory Brown testified as a gang expert. He opined that a set of facts consistent with the prosecution case would not support a gang-motivated killing because the shooting was not preceded by a gang confrontation or threats, and nothing showed the shooter knew the victim was a member of a rival gang.

(Respondent's Lodgment 5, pp. 2-9; see People v. Burton, 2010 WL 3749273, at *1-5) (footnotes renumbered).


A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, U.S. , 132 S. Ct. 38, 44 (2011); Locker v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Locker v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).


Ground One of the Petition challenges the admission of Petitioner's jailhouse conversations as allegedly violative of Petitioner's right to confrontation and his right to remain silent. For the reasons discussed below, Petitioner is not entitled to habeas relief.

I. The Admission of Petitioner's Jailhouse Conversations Did Not Violate Petitioner's Right to Confrontation.

In Crawford v. Washington, 541 U.S. 36 (2004) ("Crawford"), the United States Supreme Court held that the Confrontation Clause bars admission of the "testimonial" statement of a witness who does not appear at trial, unless the witness is unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 53-54. The Crawford rule applies only to hearsay statements that are "testimonial." Crawford, 541 U.S. at 51; see Whorton v. Bockting, 549 U.S. 406, 420 (2007) ("The Confrontation Clause has no application" to non-testimonial statements); Davis v. Washington, 547 U.S. 813, 821 (2006) (under Crawford, "[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause").

At Petitioner's trial, the defense objected to the introduction of recordings of Petitioner's jailhouse conversations with Render, Oliver and Petitioner's brother James Burton (R.T. 2406, 2419). The trial court ruled the recordings admissible, subject to certain redactions (R.T. 2455-63). The court rejected the argument that admission of the recordings would violate Crawford, ruling that the recordings were not testimonial because "none of these people would have said any of these things if they knew that it was going to be used in litigation against them" (R.T. 2462-63). The Court of Appeal agreed, reasoning that, regardless of whether the police hoped to garner incriminating statements from the surreptitiously recorded conversations, the conversations were not the product of law enforcement questioning, and the participants in the conversations did not intend to make their statements to anyone connected with law enforcement (Respondent's Lodgment 5, p. 12-13; see People v. Burton, 2010 WL 3749272, at *7).*fn10

The state courts did not commit any constitutional error in rejecting Petitioner's confrontation claim. This claim fails because the surreptitiously recorded statements plainly were not "testimonial" within the meaning of Crawford. See Davis v. Washington, 547 U.S. at 825 (giving as examples of statements that "were clearly non-testimonial" "statements made unwittingly to a Government informant" and "statements from one prisoner to another"); United States v. Pelletier, 666 F.3d 1, 9-10 (1st Cir. 2011) (jailhouse statements by one inmate to another not testimonial); United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011) (co-defendant's unwittingly recorded statements to fellow prisoner held not testimonial); United States v. Smalls, 605 F.3d 765, 777-80 (10th Cir. 2010) (statement to informant whom declarant knew only as fellow inmate not testimonial); United States v. Watson, 525 F.3d 583, 589 (7th Cir.), cert. denied, 555 U.S. 1037 and 555 U.S. 1104 (2008) (secretly recorded private statement made to a confederate not testimonial); United States v. Navarro-Montes, 2011 WL 902098, at *1 (S.D. Cal. Mar. 16, 2011) (secretly recorded statements by defendant to jailhouse informant not testimonial).

To the extent Petitioner also argues that the admission of the surreptitiously recorded statements violated California's hearsay rule, such argument cannot entitle Petitioner to federal habeas relief. Mere errors in the application of state law are not cognizable on federal habeas review. Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) ("we have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus." Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011) (citation omitted).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's Confrontation Clause claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Hence, Petitioner is not entitled to federal habeas relief on this claim.

II. Petitioner's Claim that the Admission of the Jailhouse Conversations Violated Petitioner's Right to Remain Silent Does Not Merit Habeas Relief.

Under Doyle v. Ohio, 426 U.S. 610 (1976) ("Doyle"), a prosecutor's comment on a defendant's silence during interrogation after the defendant has received Miranda*fn11 warnings can violate Due Process. Doyle, 426 U. S. at 617-19; see Cook v. Schriro, 538 F.3d 1000, 1019 (9th Cir. 2008), cert. denied, 555 U.S. 1141 (2009).*fn12

Petitioner contends that the introduction of the adoptive admissions allegedly made by Petitioner during the jailhouse conversations violated Petitioner's right to remain silent (see Petition, attachment to Ground One, p. 5 of 11).

The trial court ruled that Petitioner's right to remain silent did not extend "to a right to remain silent to his fellow gang members and cellies" (R.T. 2514). The Court of Appeal agreed, ruling that surreptitious recordings such as those challenged by Petitioner do not qualify as custodial interrogations subject to Doyle (Respondent's Lodgment 5, p. 17; see People v. Burton, 2010 WL 3749273, at *10).

The United States Supreme Court has never addressed the issue of whether prosecutorial comment on a defendant's silence during conversations with private parties can violate the constitution. See Courtney v. Walker, 2011 WL 7144826, at *9 (C.D. Cal. Dec. 15, 2011), adopted, 2012 WL 366936 (C.D. Cal. Jan. 31, 2012) (noting the absence of clear Supreme Court authority on the issue). Some courts have refused to apply Doyle to a defendant's silence during conversations with private parties. See, e.g., Southerland v. Berghuis, 2006 WL 1007888 (E.D. Mich. Apr. 14, 2007) (Doyle is "limited to situations in which the defendant's silence was induced by the governmental assurances embodied in the Miranda warnings") (citation omitted); State v. Neeper, 160 N.H. 11, 14-15, 999 A.2d 251 (2010) ("the defendant's silence towards private parties is not constitutionally protected") (citation omitted); People v. Long, 316 Ill. App. 3d 919, 931, 250 Ill. Dec. 252, 738 N.E.2d 216 (2000) ("the rule of Doyle does not apply to silence toward private parties") (citation omitted).

In the absence of any clearly established Supreme Court authority on the issue, Petitioner is not entitled to habeas relief. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ("it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where United States Supreme Court had articulated no "controlling legal standard" on the issue).

California courts have held that Doyle does not apply to a defendant's silence in a conversation with a private party, absent some showing that the defendant's silence signified an assertion of the right to remain silent. See People v. Hollinquest, 190 Cal. App. 4th 1534, 1556, 119 Cal. Rptr. 3d 551 (2010), cert. denied, 132 S. Ct. 310 (2011); People v. Eshelman, 225 Cal. App. 3d 1513, 1520, 275 Cal. Rptr. 810 (1990); cf. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (suspect's silence does not by itself invoke the suspect's right to remain silent). Applying this standard in Franklin v. Duncan, 884 F. Supp. 1435 (N.D. Cal. 1995), aff'd, 70 F.3d 75 (9th Cir. 1995), the District Court held that a prosecutor's comment on the defendant's silence in response to statements made during a jailhouse conversation made by the victim did violate the constitution. Id. at 1446-47.*fn13 During the jailhouse conversation in Franklin, the defendant had pointed to a sign stating that conversations could be monitored. Id. at 1447. The District Court opined that the defendant thereby had invoked his right to remain silent. Id. at 1447 ("His pointing to the sign indicates that the desire not to talk to the government was his motivating factor in remaining silent."). The Ninth Circuit adopted the District Court's opinion. See Franklin v. Duncan, 70 F.3d 75, 76 (9th Cir. 1995) ("Franklin"). In a more recent opinion, however, the Ninth Circuit has stated that "Doyle . . . concerned the defendant's failure to explain his version of the underlying events to the arresting officer, not to private citizens." United States v. Tab, 259 Fed. App'x 684, 697 (9th Cir. 2007), cert. denied, 552 U.S. 1305 (2008) (citation omitted).

Even if the California standard applied in Franklin were applied herein (notwithstanding the absence of any clearly established Supreme Court authority on the issue*fn14 ), Petitioner's claim would still fail. Nothing in the record suggests that Petitioner knew at the time of his conversations with Render, Oliver and James Burton that those conversations were being recorded. Hence, any silence maintained by Petitioner during the conversations could not have signified that Petitioner's desire "not to talk to the government was his motivating factor in remaining silent." See Franklin v. Duncan, 884 F. Supp. at 1447 (original emphasis).

In light of the existing record and the authorities set forth above, this Court cannot deem unreasonable the California Court of Appeal's rejection of Petitioner's claim that the introduction of adoptive admissions violated Petitioner's constitutional right to remain silent. See 28 U.S.C. § 2254(d).


For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation;

(2) denying and dismissing the claims in Ground One of Petition with prejudice; and (3) denying and dismissing all other claims in the Petition without prejudice.


Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

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