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Adrian Reyes v. Greg Lewis


July 6, 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 Gary A. Feess, 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 May 3, 2012. Petitioner filed a supporting Memorandum on May 8, 2012. Respondent filed an Answer and a supporting Memorandum on June 5, 2012. Respondent also lodged several documents on June 5, 2012. Petitioner filed a Reply to the Answer on June 19, 2012.


An Information charged Petitioner with the first-degree murder of Derek Ochoa, and also made allegations related to firearm and gang enhancements (Clerk's Transcript ("C.T.") 129-31). At the outset of trial, Petitioner sought to suppress statements he had made to law enforcement on February 10, 2006 (C.T. 140-54). The challenged statements occurred during two different interrogations: (1) an interrogation occurring at the San Bernardino Sheriff's Department station (prior to which Petitioner did not receive any Miranda warnings); and (2) a subsequent interrogation occurring at the Riverside Police station (prior to which Petitioner did receive Miranda warnings) (id.).

Following an evidentiary hearing, the trial judge suppressed the non-Mirandized statements, finding that Petitioner had been in custody when he made those statements (Reporter's Transcript ("R.T.") 4-26). The trial judge refused to suppress the subsequent Mirandized statements, however (id.). The judge reasoned that under the "totality of the circumstances" Petitioner's statements had been voluntary, such that Petitioner's Mirandized statements were admissible (R.T. 26). At trial, the prosecution introduced a videotaped recording of Petitioner's Mirandized statements (R.T. 349-53

The jury found Petitioner guilty of first-degree murder (R.T. 451-52). The jury also found to be true the firearm and gang-related enhancement allegations (R.T. 451-52). Petitioner received a sentence of 25 years to life for the murder, plus an additional 25 years to life for the firearm enhancement (R.T. 464). The sentencing judge stayed an additional term of 25 years to life for the gang-related enhancement (id.).

On direct appeal, Petitioner argued, inter alia, that the trial court erred in failing to suppress Petitioner's Mirandized statements (Lodgment 2). Petitioner also argued that his sentence of 50 years to life is unconstitutionally disproportionate to his crime (id.). Petitioner made similar claims in a petition for writ of habeas corpus filed with the California Court of Appeal (Lodgment 3). This petition included a transcript of a law enforcement interrogation of Petitioner occurring on February 9, 2006 (the day before Petitioner made the statements that were introduced at trial) (id.).

After declining to consolidate the direct appeal with the habeas petition, the Court of Appeal affirmed the judgment in a reasoned opinion and denied the habeas petition summarily (Lodgments 8, 9). In the reasoned opinion, the Court of Appeal applied a "totality of the circumstances" standard to conclude that Petitioner's statements were voluntary (Lodgment 8, pp. 13-26). The Court of Appeal recited that, among the factors to be considered as part of the totality of the circumstances, "are the crucial element of police coercion; the length of the interrogation; its location; its continuity; and the defendant's maturity, education, physical condition, and mental health" (Lodgment 8, p. 14).

In a petition for review and a separate petition for writ of habeas corpus, Petitioner raised with the California Supreme Court the same claims previously rejected by the California Court of Appeal (Lodgments 12, 17). By orders filed November 17, 2010, and March 30, 2011, the California Supreme Court summarily denied both petitions (Lodgments 13, 18).


At approximately 4:00 p.m. on January 11, 2006, an armed individual emerged from a silver Toyota Camry, shot a 16-year-old pedestrian named Derek Ochoa at least three times, and yelled "Delhi" (the name of an Orange County gang) (R.T. 77-78, 94, 96, 98-100, 147, 149-50, 162-63, 176-80, 194-97). Ochoa had claimed to be a member of a gang that was an enemy of the Delhi gang (R.T. 140-150, 152). Ochoa died as a result of the shooting (R.T. 196-200). The fatal bullet had struck Ochoa in the right side of his back (R.T. 196).

Law enforcement investigators eventually came to suspect that Petitioner, then 15 years old, had been involved in the shooting. The investigators evidently developed this suspicion because: Petitioner personally had suffered a gang-related assault shortly before the shooting; Petitioner had drawings with the word "Delhi" in his bedroom; Petitioner had moved from his family residence shortly after the shooting of Ochoa; and Petitioner had made cellphone calls to Andres Munoz after the assault on Petitioner (R.T. 272-79, 280, 285, 296-302). Andres Munoz was a high school student to whose residence investigators had traced the silver Toyota Camry involved in the shooting, and Munoz also had Delhi gang paraphernalia in his bedroom (R.T. 214-44).

Law enforcement officials interrogated Petitioner on January 13, 2006, February 9, 2006, and February 10, 2006. The Court summarizes some of the more relevant aspects of these interrogations below.*fn1

I. January 13, 2006

On January 13, 2006, Detective James Brandt questioned Petitioner at the home of Petitioner's aunt. Brandt mentioned Derek Ochoa, but most of the discussion concerned the gang-related assault Petitioner had suffered shortly before the shooting of Ochoa. Petitioner said he had moved from his family home because of the assault, admitted he knew that Delhi was a "group in Santa Ana," and claimed that his Delhi-related drawings had something to do with Petitioner's desire for a career in tattooing. Petitioner admitted knowing Ochoa in school, but claimed he did not have any problem with Ochoa. Petitioner said he thought the 5150 Riverside gang, which supposedly does not like people from Orange County, may have been responsible for the assault on Petitioner.

II. February 9, 2006

Between 5:20 a.m. and 5:30 a.m. on February 9, 2006, a SWAT team served a search warrant where Petitioner was residing (R.T. 218, 227). Before the residence was secured, Petitioner was detained and handcuffed. When the residence was secured, the cuffs were removed and Petitioner was allowed to eat breakfast. Brandt told Petitioner that Petitioner was not under arrest, but that Brandt would like to ask Petitioner questions at the station house. Petitioner agreed, and he was taken to the station house (C.T. 94-95).

At the station house on February 9, 2006, Brandt and Detective R. Wheeler questioned Petitioner. They told Petitioner he was not under arrest. Petitioner said he hoped that he could make things easier for the detectives. The detectives told Petitioner they had some information connecting Petitioner to the homicide, including records of Petitioner's cellphone calls, the car involved, and witnesses who observed people in the car. Petitioner repeatedly denied any involvement in the homicide, and claimed to have been at his home at the time. When the detectives expressed disbelief, Petitioner suggested, "Don't you guys have a lie detector or something? I, I was in my house" (Lodgment 17, page 13 of transcript). According to the transcript, the recording contains some sounds of "coughing" and "sniffing."

While answering repetitious questioning, Petitioner eventually appeared to succeed in correcting the detectives' timeline of events. The detectives mistakenly had believed that Petitioner's assault and Ochoa's shooting had occurred on the same day, when in fact the assault on Petitioner had occurred the day before the shooting of Ochoa.

The detectives urged Petitioner to "be a man" and admit culpability in Ochoa's shooting (Lodgment 17, page 43 of transcript). The detectives also suggested a mitigating scenario according to which Petitioner merely happened to be in the car at the scene of the shooting and had been surprised when other people in the car shot Ochoa. Petitioner continued to maintain his innocence. The detectives offered Petitioner water, and Petitioner apparently accepted. The detectives suggested that Petitioner was a good person, with a loving family, but that Petitioner was not being honest.

The detectives falsely represented that witnesses had identified Petitioner as having been at the scene of the crime. At one point, Petitioner said "I don't really want to say nothing no more. . . . Trying to cooperate here," after which Brandt asked a few more questions (Lodgment 17, page 51 of transcript). Petitioner then said "Stop asking me questions," to which Brandt responded, "No, I'm not gonna stop asking you questions" (Lodgment 17, page 52 of transcript). The questioning continued very briefly, and unproductively. Brandt then asked if Petitioner would be willing to take a lie detector test, and Petitioner said he would. Shortly thereafter, Petitioner also said "You guys stop asking me . . . kinda questions," to which Wheeler responded "We got to find out what happened man" (Lodgment 17, page 54). Petitioner said "Stop asking this kind of stuff man." (Id.)

Wheeler confirmed that Plaintiff's age was 15, and then told Petitioner that Petitioner's one and only hope was to "be straight," suggesting that a jury would see right through Petitioner's false claims of innocence (Lodgment 17, pages 54-55). Wheeler stated, "Give me something to write down in my report about how you were there, about how you know what happened. You have to [sic] it, it's the only chance you got right now is to be heard. After that, nobody's gonna care a thing about what you got to say" (Lodgment 17, pages 55-56). Wheeler referred again to Petitioner's loving family and suggested that Petitioner own up to his mistakes. Petitioner continued to deny that he knew anything about the shooting.

Brandt suggested that perhaps Ochoa had said something he should not have said, and Brandt asked if Ochoa had reached for his pockets. Petitioner claimed to be afraid of "nothing," and continued to say that he did not know anything about the shooting (Lodgment 17, page 63). Brandt represented that if the interrogation ended, Brandt would not come back, and would go to the D.A.'s office and win the case against Petitioner. Brandt then said "Last chance," to which Petitioner responded, "I don't know nothing man" (Lodgment 17, page 64). The entire February 9, 2006 interrogation comprises 64 pages of transcript.

III. February 10, 2006 (San Bernardino)

After sleeping overnight in his home, Petitioner was returned to the San Bernardino County Sheriff's station by Detectives Brandt and M. Medici mid-morning on February 10, 2006, so Petitioner could take a polygraph examination. Petitioner's parents reportedly had given consent for the polygraph examination. The San Bernardino Sheriff's polygrapher, Robert Heard, questioned Petitioner initially. After the conclusion of the polygraph examination, Brandt and Medici questioned Petitioner at the same location. These events took place in an interview room over a period of approximately two and a half hours. Petitioner was seated at a chair by a table. There were no restraints, no gun pointing and no yelling. There were no physical abuses or verbal threats. No one showed Petitioner any gory photographs of Ochoa. Petitioner was not stripped or put into jail clothing. Petitioner was predominantly responsive to the questioning, although he intermittently indicated that he did not want to answer further questions. Petitioner was not given any Miranda warnings while at the San Bernardino County Sheriff's station.

Before actually administering the polygraph examination to Petitioner, Heard and Petitioner engaged in a dialogue concerning polygraph examinations, Heard's experience, Petitioner's ambition to be a firefighter and other matters. Petitioner said he had slept for approximately six hours the previous night. Heard denied any intention of tricking Petitioner. Heard asked questions concerning Ochoa, and Petitioner denied planning or participating in Ochoa's death.

When presented with a consent form for the polygraph examination, Petitioner claimed not to understand what the terms "duress" and "coercion" meant, but denied that he was being forced to take the examination and denied that anyone had threatened to do something to him if he refused to take the examination. Petitioner also apparently needed Heard's help understanding the term "immunity." Heard explained the consent form appropriately and indicated that Heard would give the polygraph results to the Riverside Police Department. Petitioner agreed to take the examination, signing a form stating, inter alia, "I understand that I could not be forced to take the test by anyone and I have the right, at any time, to leave the examination room" (C.T. 294). Heard offered a bathroom break, which Petitioner declined. After a "dry run" in which Petitioner again denied planning or participating in Ochoa's death, Heard began the actual polygraph examination. During the examination, Petitioner repeatedly denied planning or participating in Ochoa's death.

Almost immediately after concluding the polygraph examination, Heard advised Petitioner that Petitioner had failed. Heard told Petitioner that Heard had no doubt Petitioner was present when Ochoa was shot. Heard asked Petitioner what had happened and Petitioner admitted that he and others were "cruising through there and um, a lot of people saw it, cause like we, were cruising through there. We didn't have no gun though, and um, (clears his throat) he had some trouble with those guys form [sic] 18th Street" (C.T. 253). Heard accused Petitioner of "dancing around" and reiterated that he wanted to know what really happened. Petitioner said "it wasn't me or my cousin that shot him," but it was "those guys from 18th Street" (C.T. 253-54). Petitioner admitted that "We were around there." (C.T. 254). Heard told Petitioner "That's not gonna work . . . I know you were there, and I know the shooter was in your car or got out a your car because witnesses, a whole bunch of witnesses say three people in the car" (C.T. 254). Heard said he had been told Petitioner was a nice young man and Heard said only good people get the job of firefighter. Heard said he was going to give Petitioner a chance to talk. Petitioner claimed that only he and his cousin were in the car, not three people. Heard expressed skepticism, and suggested "Even if you were the shooter, if you were doing it in self defense, that's, the, that can, the detectives can work with that" (C.T. 254-55). Petitioner claimed that neither he nor his cousin did the shooting. Heard also suggested a scenario in which Petitioner may have been looking to "thump" somebody in retaliation for the previous assault and then something happened that Petitioner didn't have any control over (C.T. 257). After Heard interrupted an answer by Petitioner, the following exchange occurred:

PETITIONER: I don't wanna talk about this no more. HEARD: You don't wanna talk about this anymore? PETITIONER: No.

HEARD: Is that how you want to leave it? PETITIONER: Yeah.

(C.T. 257).

Heard continued to ask questions for a few more minutes. When Petitioner asked Heard what would happen if Petitioner did not say anything, Heard indicated that the investigation nevertheless would continue. Heard suggested a scenario in which Petitioner was looking to "smack somebody around" and had someone else with him who Petitioner knew had a gun (C.T. 258). Heard said that he knew there were three people in the car but he did not know who did the shooting. Heard said "If it wasn't you, you should give it up. If it was you, and it was self defense you should say hey" (C.T. 259). Petitioner said, "But it was me or if it wasn't, everybody in the car's still gonna go 25 years . . . and, and life. . . . Even if I say anything or if I don't, everybody, that they got on the list is gonna do 25 years in prison" (C.T. 259-60). When Heard asked whether it was someone in the car who did the shooting, Petitioner said "No, I don't wanna talk about this" (C.T. 260).

Petitioner admitted to Heard that there were three people in the car (C.T. 262). Petitioner told Heard that the cousin who was in the car with Petitioner was cousin Andy (C.T. 262-63). Petitioner said Andy was driving (C.T. 263). When asked whether the third person in the car was the shooter or whether Petitioner was the shooter, Petitioner said "I don't know. I won't talk about this." (C.T. 263). When asked "Okay, is that how you wanna leave it?" Petitioner responded "I don't know, yeah, I guess." (Id.) Heard continued to ask questions, and suggested to Petitioner that the truth might help him with the district attorney. Heard stated to Petitioner

Decent young man, wants to be a firefighter, dangerous job, and loves his mother, loves his family. Adrian, I can't tell you what's gonna happen because you know what? I don't know. I don't know what's gonna happen because you haven't told me what happened out there. You told me there's three in the car and, and then you kind a stop, and then you ask me, that you tell me I'm going to state prison for, I, I, said 25 to life or something like that. Fifteen year olds don't go to state prison, Adrian.

(C.T. 265-66). Petitioner then said "I know, but I've got a go to juvenile hall" (C.T. 265-66).

Heard told Petitioner, "And if you were the shooter and it was in self defense because he said something stupid coming at you, well that's, that's fine, they, they can work with that" (C.T. 267). Heard mentioned, apparently as the consequence of an alternative scenario, going "to state prison for 25 to life or something like that," but Heard said he did not have an answer to Petitioner's question: "So if I say who the shooter was, I'm still gonna go to jail?" (C.T. 268). Heard also said that he did not have the answer to Petitioner's question: "Well, if I say who it was then two of us are gonna just go home?" (C.T. 269).

Petitioner asked for some time. Heard offered to wait outside, but Petitioner said "No, it's alright" (C.T. 269). Heard asked Petitioner on what side of the car the shooting occurred, and Petitioner responded "Oh, not that I know, you know, so don't ask any question" (C.T. 270). Heard asked if Petitioner wanted to be alone, and Petitioner responded "No, it's just, just don't ask any questions." (Id.). When Heard said he was not just going to sit there and do nothing, Petitioner said "Can we just call the detectives?" (Id.).

Shortly thereafter, in the same room, Brandt and Medici questioned Petitioner. When Brandt asked whether Petitioner was "in the front passenger," Petitioner stated "No, I'll say nothing, man" (C.T. 273). Petitioner refused to identify the other person in the car and suggested that everybody "still got a go time in jail" (C.T. 272-73). Detective Brandt responded "No, but, I mean the time in jail thing, it may be minimal or it, it may be a lot, but like we told you yesterday, uh, people have, you have to tell the, the truth" (C.T. 273).

Petitioner said that his biggest concern was going to jail for a long time. The following exchange then occurred:

BRANDT: Okay. How long you think you would go to jail for?

PETITIONER: I don't know. Like it's a murder, probably like 25 years.

BRANDT: Yeah? How old are you?


BRANDT: How many 15 year olds do you know that go to jail for 25 years?




BRANDT: Okay, so why would you be any different?

PETITIONER: I don't know.

(C.T. 274).

Brandt asked Petitioner if Ochoa had anything in his hands or had reached for his pockets. Petitioner said he did not know. Brandt falsely represented to Petitioner that Ochoa had a gun in Ochoa's pocket and suggested that if Petitioner had believed Ochoa was going for a gun in Ochoa's pocket, "there's an explanation as to what happened" (C.T. 275). But, Brandt continued, if the shooting was a cold blooded thing that Petitioner did not feel bad about, it would look bad. (Id.). Petitioner claimed Ochoa "always had a gun" (C.T. 276).

Brandt suggested that Ochoa had been throwing rocks at the car. Petitioner then said that Ochoa "was just running up to the car" and was reaching for his pockets, that Ochoa always used to take a 45 gun to school and was always saying that he was going to shoot everybody (C.T. 277-78). Petitioner said that his cousin was the driver and had nothing to do with it, that Ochoa "just ran up to us," that everybody knew Ochoa always had a gun, that Ochoa was reaching for a gun in his pocket, had a grip on it, that Petitioner was scared and that Petitioner "just shot" (C.T. 279). Petitioner admitted he had been in the back seat, had gotten mad, and had opened the door to get Ochoa to back up before shooting Ochoa (C.T. 280). Petitioner denied chasing Ochoa down and shooting him again, claiming that he just shot Ochoa from close by the car, got back in the car, and took off (C.T. 281).

On further questioning, Petitioner identified the third person in the car as "Victor" (C.T. 283). Petitioner contended during the remainder of the questioning that the three had been driving around, looking for a guy from Riverside, but not intending to shoot anyone, just intending to hit someone in retaliation for the assault on Petitioner. The detectives expressed disbelief, but Petitioner admitted no other intent, even after being told that Ochoa in fact did not have a gun. Petitioner also denied that anyone yelled "Delhi" (or "Dell High") when Ochoa was shot. Petitioner claimed that Ochoa took drugs. Petitioner said he thought Ochoa was on drugs, had a gun and was running up to Petitioner. Late in the interrogation, Petitioner continued to evidence an understanding that he could do "25 years to life" if he had meant to shoot Ochoa (C.T. 305). Petitioner consistently denied that the shooting was gang related.

IV. February 10, 2006 (Riverside)

Following the transportation of Petitioner to the Riverside Police Department, Brandt and Medici resumed questioning Petitioner after administering Miranda warnings. Brandt asked Petitioner "Can we talk about stuff we talked about earlier today?" Petitioner responded "Yeah" (C.T. 314). Petitioner then answered a number of additional questions concerning what had happened the day before the shooting, as well as what had happened the day of the shooting. In addition to repeating the information Petitioner previously had divulged, Petitioner indicated that the gun held six bullets, that he probably took the gun trying to show off, and he had placed the gun in his pocket. Petitioner also stated that when he and the others were driving around on the day of the shooting, they had asked other people if they were "5150" (C.T. 323).

Petitioner continued to deny that he ever intended to use the gun. He said that he recognized Ochoa and said "What's up fool?" and then Ochoa "looked like he smiled and then like he wasn't sure. And he just ran up to the car and like grow balls and shit or something," and Petitioner got scared and shot (C.T. 324). Petitioner said he was not sure if Ochoa was throwing rocks but he was "throwing shit" (C.T. 324).

Petitioner said that Ochoa did not say anything, but just looked at them and ran up to the car and put his hand on his pocket (C.T. 327-28). Petitioner was in the back seat on the driver's side. Petitioner claimed not to know how many times he shot the gun. Petitioner said that Ochoa was in the street when first shot and then Ochoa walked back toward the sidewalk. Ochoa reportedly was backing away toward the sidewalk with his hands in his pockets after the first shot. Petitioner said he went home after the shooting, leaving the gun in the car. Petitioner claimed that it looked like Ochoa had a grip like he was going to pull a gun out, so Petitioner shot. Petitioner said that less than a month earlier Ochoa was flashing a 45 at school. Petitioner claimed to have previously seen Ochoa high on crystal meth. Petitioner claimed Ochoa was running with his hand out toward the car and threw something like a cup at the car. Petitioner claimed he opened the car door to get Ochoa to back away. Petitioner later said Ochoa was throwing a rock or a cup, ran toward the car putting his hand in his pocket and reaching out. "I opened the door.

He stood back. I jumped out and I just shot" (C.T. 350).

The detectives told Petitioner that the toxicology reports on Ochoa indicated Ochoa did not have any alcohol or drugs in his system other than perhaps some marijuana, and also told Petitioner that Ochoa did not have a gun (C.T. 354). Brandt told Petitioner that witnesses said Ochoa's hands were visible. (Id.).

Brandt said "I don't think you shot him in self-defense. I think you shot him cause you were pissed. I think he fronted you guys off and you didn't wanna be clowned and you shot him." (C.T. 355). Brandt urged Petitioner to be completely honest. Despite additional questioning, in which Brandt argued that the distances had been such as to make Petitioner's self-defense story physically impossible, Petitioner stuck to that story. Petitioner also continued to deny that anyone had said "Delhi" at the time of the shooting. Petitioner said that he had OC tattoos on his legs and also had a tattoo of 714. When Brandt asked Petitioner how long Petitioner had had the OC tattoos, Petitioner stated "Man, I don't want to tell you nothing man. You're fucked up. . . . You're like, you're just trying to get me busted, fool. Trying to get me 25 years and shit." (C.T. 360-61). Petitioner complained that the detectives were accusing him of "putting in work" for a gang. Petitioner asked to call his mother. Medici offered Petitioner food and told Petitioner that he would be taken to juvenile hall where he would have access to a telephone. Medici put handcuffs on Petitioner, which Medici readjusted at Petitioner's request. Petitioner indicated that food from McDonald's was okay with him (C.T. 363).


Petitioner contends that the statements he made during the interrogations in San Bernardino were involuntary, such that the state court should have excluded as tainted the Mirandized statements Petitioner later made during the interrogation in Riverside. Respondent contends that the statements Petitioner made in San Bernardino were voluntary and, even if involuntary, did not taint the statements later made in Riverside. Petitioner contends, and Respondent denies, that the California Court of Appeal's refusal to consolidate the direct appeal with the petition for writ of habeas corpus violated Petitioner's constitutional rights. Petitioner contends, and Respondent denies, that Petitioner's sentence is unconstitutionally disproportionate to his crime.


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), as amended by the "Anti-Terrorism and Effective Death Penalty Act of 1996" ("AEDPA"); 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, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63 (2003). Only United States Supreme Court precedent can constitute "clearly established Federal law" within the meaning of section 2254; "Circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court'" and "therefore cannot form the basis for habeas relief. . . ." Parker v. Matthews, 2012 WL 2076341, at *6 (U.S. June 11, 2012).

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." Locyker 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, 190 (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 on the claim or claims presented. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert. denied, 130 S. Ct. 183 (2009). Where there exists only a summary denial of a claim, "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. at 786; accord Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).


For the reasons discussed below, the Court should deny and dismiss the Petition with prejudice.

I. Claim of Involuntariness

The Due Process Clause of the Fourteenth Amendment bars evidence of involuntary confessions. Miller v. Fenton, 474 U.S. 104, 109 (1985). Courts must analyze the "totality of the circumstances" to determine whether a confession was involuntary. Withrow v. Williams, 507 U.S. 680, 693 (1993).

The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Culombe v. Connecticut, 367 U.S. 568, 602 (1961); see Dickerson v. United States, 530 U.S. 428, 434 (2000) (the court must examine "whether a defendant's will was overborne by the circumstances surrounding the giving of the confession"). To be admissible, statements need not have been "voluntary in the sense that [defendants] wanted to make them or that they were completely spontaneous, like a confession to a priest, lawyer, or a psychiatrist." Stein v. New York, 346 U.S. 156, 186 (1953), overruled on other grounds by Jackson v. Denno, 378 U.S. 368 (1964). "[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986).

[A] confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation. . . . [N]either the body nor mind of an accused may be twisted until he breaks. . . .

But asking questions is not the lash or the rack. . . .

Culombe v. Connecticut, 367 U.S. at 576, 584, 588.

Factors to be considered in analyzing the "totality of the circumstances" include the length and location of the interrogation, the failure of police to advise the accused of his or her rights, and the maturity, education, physical condition and mental health of the accused. See Withrow v. Williams, 507 U.S. at 693-94. In regard to maturity, the Supreme Court "has emphasized that admissions and confessions of juveniles require special caution." In re Gault, 387 U.S. 1, 45 (1967). "[T]he greatest care must be taken to assure that [a juvenile's] admission was voluntary," in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair."

Id. at 55; see also Haley v. Ohio, 332 U.S. 596 (1948); cf. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2406 (2011) (in a case decided after the state courts ruled in the present case, the Supreme Court held "that so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer," the child's age is to be considered in the analysis of whether the child was in "custody" for purposes of Miranda).

In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court held that an initial failure to administer Miranda warnings, "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's . . . free will" does not, without more, "taint" subsequent statements obtained after giving Miranda warnings and obtaining defendant's waiver of Miranda rights. Id. at 309-10. The Court rejected the contention that such statements must be excluded as the "fruit of the poisonous tree" under the "taint" doctrine first articulated in Wong Sun v. United States, 371 U.S. 471 (1963), and applied in cases such as Brown v. Illinois, 422 U.S. 590 (1975). Oregon v. Elstad, 470 U.S. at 305-06. Rather, "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions which precluded admission of the earlier statement." Id. at 313.

Oregon v. Elstad holds that the "fruit of the poisonous tree" doctrine "does not operate in the Miranda context in the same way that it does in the Fourth Amendment context." United States v. Orso, 266 F.3d 1030, 1034 (9th Cir. 2001) (en banc), cert. denied, 537 U.S. 828 (2002) (citation and footnote omitted), abrogated in part by Missouri v. Seibert, 542 U.S. 600 (2004) (as recognized in United States v. Williams, 435 F.3d 1148, 1161 (9th Cir. 2006)).

That is, even though the earlier statement from the suspect was elicited in violation of Miranda, so long as the earlier statement was not involuntary due to unconstitutional coercion, the subsequent, voluntary, warned statement was still admissible, without regard to whether it was 'tainted' by the earlier statement. [citation]. Only if the unwarned statement was involuntary due to unconstitutional coercion could the warned statement be suppressed as 'tainted fruit.'


United States v. Orso, 266 F.3d at 1035.*fn2 In Oregon v. Elstad, the Supreme Court specifically disapproved application of a "break in the stream of events" analysis where the first statement, although unwarned, was not coerced. Oregon v. Elstad, 470 U.S. at 310-11. If, however, the earlier statement was involuntary, the subsequent warned statement must be suppressed unless "sufficiently attenuated to permit the use of the evidence under the ['taint'] standards announced in Brown [v. Illinois, 422 U.S. 590 (1975)]." United States v. Wauneka, 770 F.2d 1434, 1440 (9th Cir. 1985).

In the present case, Petitioner argues that the statements he made on February 10, 2006, were the involuntary product of coercion by law enforcement. In his arguments, Petitioner emphasizes particular factors, including his youth, multiple statements indicating he did not wish to answer further questions, misrepresentations by law enforcement regarding the state of the evidence, misrepresentations by law enforcement regarding potential punishment and the benefits of cooperation, "tough talk" by law enforcement including telling Petitioner he had failed the polygraph examination, and suggestions by law enforcement of possibly mitigating factual scenarios. As discussed below, none of these factors is necessarily dispositive of the voluntariness analysis.

Petitioner's youth is not necessarily dispositive of the voluntariness analysis. See, e.g., United States ex rel. Richardson v. Vitek, 395 F.2d 478, 480 (7th Cir. 1968) (circumstances that the accused was 15 years old and had no attorney when questioned "in themselves do not render the statement involuntary as a matter of law. . . ."); Smith v. Sullivan, 1 F. Supp. 2d 206 (W.D.N.Y. 1998) (confession of 13 year old following hours of police interrogation held voluntary). In Hardaway v. Young, 302 F.3d 757, 767 (7th Cir. 2002), cert. denied, 538 U.S. 979 (2003), the Seventh Circuit observed that the United States Supreme Court has made "quite clear that all juvenile confessions are to be assessed under the totality of the circumstances standard," and that courts may not impose a per se rule that an uncounseled confession of a 14 year old necessarily is involuntary.

Petitioner's intermittent refusals to answer further questions are not necessarily dispositive of the voluntariness analysis. "The mere fact that police officers improperly question a suspect after he invokes his right to remain silent during a custodial interrogation does not render his subsequent statements the product of coercion." Parsad v. Greiner, 337 F.3d 175, 184 (2d Cir.), cert. denied, 540 U.S. 1091 (2003); accord United States v. Murdoch, 667 F.3d 1302 (D.C. Cir. 2012).

Law enforcement misrepresentations regarding the state of the evidence against the suspect are not necessarily coercive. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969); Pollard v. Galaza, 290 F.3d 1030, 1034 (9th Cir.), cert. denied, 537 U.S. 981 (2002); Amaya-Ruiz v. Stewart, 121 F.3d 486, 495 (9th Cir. 1997), cert. denied, 522 U.S. 1130 (1998); see also Bhimji v. Adams, 2009 WL 6381306, at *14 (C.D. Cal. Dec. 18, 2009), adopted, 2010 WL 1678174 (C.D. Cal. Apr. 20, 2010) ("though petitioner correctly notes that the detectives misrepresented the evidence against petitioner in order to induce him to talk, the use of such a ruse does not constitute coercion").

Law enforcement misrepresentations regarding potential punishment, or suggestions of leniency, do not necessarily render involuntary a subsequent confession. The Supreme Court "has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness." Oregon v. Elstad, 470 U.S. at 316. False representations regarding the nature or length of criminal punishment do not necessarily impugn the voluntariness of a suspect's later statements. See United States v. Montgomery, 555 F.3d 623, 627-30 (7th Cir.), cert. denied, 129 S. Ct. 2413 (2009) (underestimate of potential maximum sentence); Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (law enforcement officers "misrepresented the serious potential legal consequences [the juvenile] would face were he to admit involvement," but such "trickery" did not constitute coercion); Smith v. Bowersox, 311 F.3d 915, 917, 922-23 (8th Cir.), cert. denied, 540 U.S. 893 (2003) (detectives falsely implied that the suspect would not receive the death penalty, but state courts permissibly concluded that confession was voluntary). In particular, where the false representation regarding punishment, or the promise of leniency, is neither tied to the confession nor causally related to the confession, the ensuing confession can be voluntary. See, e.g., United States v. Montgomery, 555 F.3d at 629-30 (false representation regarding potential punishment was "not tied to any confession or statement on Montgomery's part. Heiser did not promise Montgomery that he would not receive a ten year sentence if he confessed; he said that Montgomery would not receive ten years from the federal system. . . . The information that Heiser gave him was inaccurate, but Montgomery was not promised a ten year sentence if he confessed or made a statement."); United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (promises do not render a subsequent confession involuntary unless the promises were "sufficiently compelling to overbear the suspect's will in light of all attendant circumstances").

There also is nothing necessarily coercive about "talking toughly" or representing to a suspect that the suspect failed a polygraph examination. See, e.g., Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.), cert. denied, 510 U.S. 822 (1993) ("It was not improper to inform Jenner that her polygraph test results indicated deception"); United States v. Wolf, 813 F.2d 970, 975 (9th Cir. 1987) ("The fact that Vasquez accused Wolf of lying does not automatically render the questioning coercive, as an interrogator can legitimately express his disbelief at a defendant's story in order to elicit further comments or explanations."); Rainey v. Knowles, 2008 WL 4104285, at *13 (N.D. Cal. Sept. 2, 2008), aff'd, 386 Fed. App'x 605 (9th Cir.), cert. denied, 131 S. Ct. 611 (2010) (polygraph examiner told 16-year-old mentally impaired suspect that the test could detect lies and that the suspect had failed); Yepez v. McGrath, 2007 WL 3146977, at *3 (N.D. Cal. Oct. 25, 2007) (officer told juvenile suspect "You need to be man enough to stand up and be responsible for what occurred. Down the road, believe it or not, it's gonna help you. It really will. . . .

[Y]ou need to come clean with us.").

Law enforcement officers also may suggest mitigating scenarios without rendering involuntary a subsequent confession. See, e.g., Brown v. Horell, 644 F.3d 969, 976 (9th Cir.), cert. denied, 132 S. Ct. 593 (2011) (detective induced confession in part by suggesting that the victim might have had a gun or might have tried to hurt the suspect in some way; federal habeas relief denied); Jenner v. Smith, 982 F.2d at 334 (investigator appeared to suggest a mental defense of disassociative identity disorder to a crying mother suspected of having murdered her three-year-old daughter, but the court found "no improperly coercive questioning tactics"); Thlang v. Jacquez, 2012 WL 33052, at *4-10 (E.D. Cal. Jan. 6, 2012) (detective suggested to suspect in a shooting case, "you could just be the guy that was in the car and you don't know what the hell's going on and somebody starts shooting . . . Be a witness rather than a suspect in this thing . . . I don't want to see you go to prison man and I'm not lying to you . . . I can't do anything for you when you're sitting here telling to me that I wasn't in the Camaro when in fact everybody knows you were, you understand that. I truly don't think you are the shooter and I want you, I'd rather use you as a witness than, than, than a suspect. . . ."; suspect admitted he was sitting in the Camaro when the shooting occurred; jury found suspect guilty of first-degree murder with gang-related enhancements, rejecting the suspect's defense that "he had no idea that the shooting was likely to occur"; district court denied federal habeas relief for lack of coercion); People v. Holloway, 33 Cal. 4th 96, 116, 14 Cal. Rptr. 3d 212, 91 P.3d 164 (2004), cert. denied, 543 U.S. 1156 (2005) (state court found confession voluntary notwithstanding interrogator's suggestions "that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could 'make a lot of difference'"); cf. Ortiz v. Lamarque, 2006 WL 3388539, at *5 (E.D. Cal. Nov. 22, 2006) (investigator advised suspect that, if the suspect told the truth, "I guarantee you, you'll be looked at in a better light"; federal habeas relief denied).

Of course, the evaluation for voluntariness requires consideration of the "totality of the circumstances," not merely consideration of particular factors in isolation. See Reck v. Pate, 367 U.S. 433, 440 (1961) (in resolving the voluntariness issue, "all the circumstances attendant upon the confession must be taken into account"). Accordingly, the above discussion does not necessarily demonstrate that Petitioner's statements were voluntary. In fact, a court reasonably might conclude that Petitioner's statements were involuntary, given the factors in combination such as: Petitioner's age; his relative lack of experience with the justice system; the initial lack of Miranda warnings; the continuation of questioning despite Petitioner's indications that he no longer wished to answer questions; misrepresentations regarding state prison; misrepresentations regarding the state of the evidence; the lack of direct participation by any friendly adult; and law enforcement's appeals to emotion, including references to Petitioner's mother and siblings.

On the other hand, many relevant factors also point toward the opposite conclusion. A court reasonably might conclude that Petitioner's will was never "overborne" by coercion, i.e., that Petitioner's statements were voluntary under the totality of the circumstances. In this regard, relevant considerations also include the following: the questioning on February 10 lasted less than four hours;*fn3 the questioning took place during daylight hours; Petitioner's parents evidently consented to the polygraph examination, an examination Petitioner himself initially suggested; Petitioner was not unresponsive during the vast majority of the questioning but responded to almost all questions, sometimes deftly and sometimes expansively; despite his youth, Petitioner verbally parried with the detectives, even succeeding in correcting the detectives on factual points; Petitioner had an understanding of the penalty for murder and, even after law enforcement misrepresentations regarding 15 year olds and state prison, continued to manifest an understanding that culpability for the shooting could bring a sentence of 25 years to life; Petitioner was offered water, and eventually food; Petitioner had slept in his home the night before the February 10 interrogations; Petitioner was not stripped or made to wear jail clothing; Petitioner was not restrained during the questioning; the interrogators did not yell, physically abuse or verbally threaten Petitioner; Petitioner plainly is not of substandard intelligence; there is little or no evidence of overt emotional display by Petitioner on February 10 (although sounds of "sniffing" were made by someone on February 9); Petitioner was not shown any disturbing photographs of the victim; although the detectives suggested mitigating scenarios, these scenarios were not calculated to (or likely to) persuade a person uninvolved in the shooting of Ochoa to confess to having shot Ochoa; and despite the cumulation of all of the alleged "coercion" by law enforcement, Petitioner adamantly maintained a self-defense story and refused to admit several facts the detectives appeared very much to have wanted to induce Petitioner to admit, e.g., the fact that the word "Delhi" was shouted at the time of the shooting, the fact that Petitioner was "putting in work" for a gang when he shot Ochoa, and the fact that Petitioner had taken the gun with him for purposes other than merely to show off the gun to Petitioner's cousin and friend.*fn4

The closeness and difficulty of the voluntariness analysis in the present case is not uncommon. "The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused." Haynes v. Washington, 373 U.S. 503, 515 (1963).

[W]hether a confession of a lad of fifteen is "voluntary" and as such admissible, or "coerced" and thus wanting in due process, is not a matter of mathematical determination. Essentially it invites psychological judgment -psychological judgment that reflects deep, even if inarticulate, feelings of our society.

Haley v. Ohio, 332 U.S. 596 (1948) (Frankfurter, J., concurring) ("Haley"); cf. Culombe v. Connecticut, 367 U.S. 568, 601 (1961) ("It is impossible for this Court, in enforcing the Fourteenth Amendment, to attempt precisely to delimit, or to surround with specific, all inclusive restrictions, the power of interrogation allowed to state law enforcement officers in obtaining confessions").

The difficulty of "line drawing" and the imprecision of a standard which requires consideration of the "totality of the circumstances" to determine whether a suspect's "will was overborne" inevitably affect the nature of federal habeas review. A federal habeas court drawing these lines and applying this standard should be extremely circumspect before concluding that a state court's voluntariness ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." See Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (explicating the standard for granting habeas relief to state prisoners). As the United States Supreme Court held in a habeas case involving the standard for analyzing whether a person is in "custody" for purposes of Miranda:

[T]he range of reasonable judgment [within the meaning of 28 U.S.C. section 2254(d)] can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("Yarborough") (emphasis added). The standard for evaluating voluntariness is a "general" rule within the meaning of Yarborough, and thus the standard affords state courts "more leeway" in their "case-by-case determinations." See Wheaton v. McDaniel, 2009 WL 2709360, at *2 (D. Nev. Aug. 25, 2009), aff'd, 412 Fed. App'x 965 (9th Cir), cert. denied, 132 S. Ct. 132 (2011); McGuire v. Crosby, 2005 WL 1278853, at *4 (N.D. Fla. May 27, 2005); see also Doody v. Ryan, 649 F.3d 986, 1025 (9th Cir. 2011) (Kozinski, J., concurring) ("Doody").

Given the generality of the standard, the closeness and difficulty of the voluntariness analysis, and the constricting nature of the AEDPA standard of review, habeas relief should be denied on Petitioner's claim that law enforcement coercion overbore his will and rendered his February 10 statements involuntary. The state courts' rulings on this claim were not "so lacking in justification as to be error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." See Brown v. Horell, 644 F.3d 969, 980-82 (9th Cir.), cert. denied, 132 S. Ct. 593 (2011) (habeas relief denied even though Ninth Circuit concluded that a polygraph examiner had coerced a confession from a 21 year old of limited education "by conditioning his ability to be with his child on his decision to cooperate with the police"; court noted that other courts have not unanimously concluded that exploiting an accused's relationships to induce cooperation renders the resulting confession involuntary); Etherly v. Davis, 619 F.3d 654 (7th Cir. 2010), cert. denied, 131 S. Ct. 1577 (2011) (denying habeas relief where 15-year-old murder suspect of "borderline intellectual functioning" and no criminal background underwent a custodial examination in the absence of any friendly adult participation and was told he had a "moral obligation" to cooperate); Hardaway v. Young, 302 F.3d 757, 768 (7th Cir. 2002), cert. denied, 538 U.S. 979 (2003) (suspect was 14 years old and lacked a friendly adult presence during an intermittent custodial interrogation that lasted an entire day; Seventh Circuit reversed the district court's grant of habeas relief because, "[e]ven assuming that the weighing of factors by the Illinois state courts in this case was incorrect, the balance is close enough that, in the final analysis, it is not unreasonable").*fn5

Cases in which the United States Supreme Court has granted relief in connection with custodial interrogations of juvenile suspects are distinguishable from the present case. In Haley, a 15-year-old suspect was questioned at police headquarters between midnight and 5:00 a.m. by five or six police officers in "relays of one or two each." Justice Frankfurter's concurrence, rather than a plurality opinion, provided the imprecise holding in Haley:*fn6

The answer [to the voluntariness question] . . . depends on an evaluation of psychological factors, or, more accurately stated, upon the persuasive feeling of society regarding such psychological factors. Unfortunately, we cannot draw upon any formulated expression of the existence of such feeling. Nor are there available experts on such matters to guide the judicial judgment. Our Constitutional system makes it the Court's duty to interpret those feelings of society to which the Due Process Clause gives legal protection. Because of their inherent vagueness the tests by which we are to be guided are most unsatisfactory, but such as they are we must apply them. . .

Unhappily we have neither physical nor intellectual weights and measures by which judicial judgment can determine when pressures in securing a confession reach the coercive intensity that calls for the exclusion of a statement so secured. . . . . In concluding that a statement is not voluntary which results from pressures such as were exerted in this case to make a lad of fifteen talk when the Constitution gave him the right to keep silent and when the situation was so contrived that appreciation of his rights and thereby the means of asserting them were effectively withheld from him by the police, I do not believe I express a merely personal bias against such a procedure. Such a finding, I believe, reflects those fundamental notions of fairness and justice in the determination of guilt or innocence which lie embedded in the feelings of the American people and are enshrined in the Due Process Clause of the Fourteenth Amendment Id. at 605-07. In Gallegos v. Colorado, 370 U.S. 49 (1962) ("Gallegos"), the police had detained a 14-year-old suspect for five days while his mother unsuccessfully tried to see him. Perhaps most significantly, the Supreme Court decided Gallegos (as well as Haley) without the profound constraints of the AEDPA standard of review.

A divided Ninth Circuit en banc court recently granted habeas relief under the AEDPA standard of review in Doody. There, from 9:25 p.m. until 10:00 a.m. the next day, a "tag team" of detectives continuously and relentlessly had interrogated a sleep-deprived and almost wholly unresponsive 15-year-old non-native suspect while the suspect sat in a straight-back chair without even a table on which to lean. Petitioner's circumstances were far different, and far less coercive, than those of the beleaguered suspect in Doody. The Doody decision does not require a different result herein.*fn7

II. Claims Regarding the Refusal to Consolidate the Direct Appeal and the Habeas Corpus Petition

Petitioner argues that the California Court of Appeal should have consolidated his direct appeal and his habeas corpus petition such that, among other things, a transcript of the February 9, 2006 interrogation could have been available in the direct appeal. After the refusal to consolidate, the California Court of Appeal affirmed the judgment in a reasoned decision that did not discuss the February 9 transcript and denied the habeas petition in an order that did not discuss anything. The California Supreme Court summarily denied both review and habeas relief. Contrary to Petitioner's argument, the state courts' failure to consolidate cannot warrant federal habeas relief.

Federal habeas relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on federal habeas review. Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions"); accord Pulley v. Harris, 465 U.S. 37, 41 (1984).

The Ninth Circuit "has specifically stated that federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999); see Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989) (holding that allegations of error in state's post-conviction review are not addressable through habeas corpus proceedings). More specifically, the summary nature of a state court's ruling on a habeas corpus petition does not offend the federal constitution. See, e.g., Owens v. Nool, 2010 WL 144364 (N.D. Cal. Jan. 5, 2010) (dismissing habeas petitioner's claim that the California Court of Appeal "erred in failing to state, in a written opinion, its reasons for denying petitioner's petition"); Stewart v. Sisto, 2008 WL 5178835, at *1 (E.D. Cal. Dec. 10, 2008) ("there is no federal constitutional prohibition preventing state courts from disposing of [the petitioner's] post-conviction claims in a summary fashion. Nor is there a federal requirement that state courts consider post-conviction claims with a full discussion of the merits").*fn8

In any event, habeas relief for a non-structural error is available only if the error had a "substantial and injurious effect or influence" on the outcome of the state proceeding. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). The California Court of Appeal's decision to determine Petitioner's involuntariness claims on appeal and on habeas corpus, rather than in a single appeal/habeas corpus proceeding, had no substantial or injurious effect or influence on the outcome of the post-conviction proceedings.*fn9

III. Claim of Disproportionality

Petitioner argues that his sentence of 50 years to life is unconstitutionally disproportionate to his crime of first-degree murder by firearm. Petitioner argues that his sentence "is the equivalent of a sentence of life without the possibility of parole" and "should be reduced to no more than 25 years to life" (Reply at 13). Petitioner's arguments lack merit.

The Eighth Amendment forbids the imposition of "cruel and unusual punishments." United States Constitution, Amend. VIII. In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court upheld a sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277 (1983), the Court struck down a sentence of life without the possibility of parole for uttering a "no account" check for $100, "one of the most passive felonies a person could commit," where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957 (1991) ("Harmelin"), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine. In a concurring opinion, Justice Kennedy opined that a non-capital sentence could violate the Eighth Amendment if it were grossly disproportionate to the crime. Id. at 996-1009. Justice Kennedy articulated a test whereunder the court first conducts a threshold review of the gravity of the offense and the severity of the sentence to determine whether the case is the "rare" case in which this analysis supports an inference of gross disproportionality. Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). If such an inference arises, the court thereafter compares the challenged sentence with those received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions. Id.

In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs. In Lockyer v. Andrade, 538 U.S. 63 (2003) ("Andrade"), the Court upheld, under the AEDPA standard of review, the California Court of Appeal's determination that a sentence of fifty years to life for two non-violent petty thefts with a prior theft-related conviction was not disproportionate. Andrade, 538 U.S. at 66-67.

In Andrade the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as 'clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.

In 2010, the Supreme Court expressly adopted Justice Kennedy's approach in Harmelin. See Graham v. Florida, 130 S. Ct. 2011, 2022 (2010); see Norris v. Morgan, 622 F.3d 1276, 1287 n.12 (9th Cir. 2010), cert. denied, 131 S. Ct. 1557 (2011). Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [the] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d 123, 129 (9th Cir.), cert. denied, 506 U.S. 858 (1992) (citations and quotations omitted); see Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the 'exceedingly rare' and 'extreme' case") (citations omitted); Harmelin, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Norris v. Morgan, 622 F.3d at 1287 ("the Supreme Court has uniformly applied - and thus given meaning to - the gross disproportionality principle by consistently measuring the relationship between the severity of the punishment inflicted upon the offender and the nature and number of offenses committed . . ."); Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence").

Furthermore, this Court may not grant habeas relief on Petitioner's disproportionality claim unless the state courts' rejection that claim was contrary to, or an objectively unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). For this purpose, the applicable law is the law clearly established by the United States Supreme Court no later than March 30, 2011, the date of the California Supreme Court's most recent decision on the merits of the disproportionality claim. See Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011); Andrade, 538 U.S. at 71-72.

Petitioner's disproportionality claim fails because, under the clearly established Supreme Court law existing as of March 30, 2011, it was not unreasonable to conclude that the claim failed at the threshold level of the Harmelin analysis. It was then reasonable to conclude that, even given Petitioner's youth, a comparison of the gravity of Petitioner's crime with his sentence did not make Petitioner's case one of the "rare" cases supporting an inference of gross disproportionality.

In Solem v. Helm, 463 U.S. at 290 n.15, the Supreme Court observed that "clearly no sentence of imprisonment would be disproportionate for [felony murder]." In Harris v. Wright, 93 F.3d 581, 583-85 (9th Cir. 1996), the Ninth Circuit upheld a sentence of life without parole for a 15-year-old murderer. The Ninth Circuit then noted the absence of any state consensus against imposing mandatory life without parole for offenders who commit their crimes before the age of 16. In Windham v. Merkle, 163 F.3d 1092, 1106-07 (9th Cir. 1998), the Ninth Circuit upheld the constitutionality of a life sentence for aiding and abetting a second-degree murder. In Tanner v. McDaniel, 493 F.3d 1135, 1144-45 (9th Cir.), cert. denied, 552 U.S. 1068 (2007), the Ninth Circuit indicated that a disproportionality challenge to a sentence of life without parole did "not qualify as a non-frivolous ground for appeal," because it was "clear beyond argument, however, that the sentence Tanner received [of life without parole for first-degree] murder and for the use of a deadly weapon in its commission would not be cruel and unusual by any court in the United States" (citations omitted). In Delatorre v. Haws, 2011 WL 2471027 (E.D. Cal. June 20, 2011), the Eastern District of California denied habeas relief to a petitioner sentenced to 50 years to life plus three additional consecutive life sentences for aiding and abetting a gang-related murder when he was barely 14 years of age.

Moreover, courts have upheld sentences of life without the possibility of parole*fn10 for crimes far less heinous than Petitioner's crime. See Harmelin (life without possibility of parole for possession of 672 grams of cocaine); United States v. Jensen, 425 F.3d 698 (9th Cir. 2005), cert. denied, 547 U.S. 1056 (2006) (life without possibility of parole for possession of methamphetamine with intent to distribute); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991) (life without possibility of parole for possession of cocaine with intent to distribute); Terrebonne v. Butler, 848 F.2d 500 (5th Cir. 1988), cert. denied, 489 U.S. 1020 (1989) (life without possibility of parole for 21-year-old heroin addict who delivered packets of heroin to an undercover officer); Holley v. Smith, 792 F.2d 1046, 1051-52 (11th Cir. 1986), cert. denied, 481 U.S. 1020 (1987) (life without possibility of parole for recidivist robber); Holmes v. Valadez, 2005 WL 3113085, at *8-9 (N.D. Cal., Nov. 21, 2005) (ninety years to life for two first degree-burglary convictions for recidivist burglar).

The Andrade decision also appears to foreclose the possibility of a successful disproportionality claim in the present case. In Andrade, the Supreme Court acknowledged: "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. Because of this lack of clarity, the Andrade Court found not unreasonable a California court's affirmance of a sentence of 50 years to life for two petty thefts with a prior theft-related conviction. Id. The same lack of clarity would prevent this Court from concluding that the state appellate courts' refusals to interfere with Petitioner's sentence was "contrary to" or an "unreasonable application of" "clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d).

Not until after the state courts' rulings in the present case did the United States Supreme Court clearly establish that the federal constitution places any restriction on state legislatures' prescription of non-capital sentences for juvenile murders. See Miller v. Alabama, 2012 WL 2368659 (U.S. June 25, 2012) ("Miller"). The United States Supreme Court previously had recognized constitutional restrictions on state legislatures' sentencing prescriptions of capital punishment for juveniles convicted of murder, and life imprisonment without the possibility of parole for juveniles convicted of non-homicide offenses. See Graham v. Florida, 130 S. Ct. at 2011; Roper v. Simmons, 543 U.S. 551 (2005). Only in Miller, however, did the United States Supreme Court hold that a state legislature may not prescribe mandatory sentences of life without the possibility of parole for juvenile murderers. The Miller decision does not affect the result in the present case, both because Miller was decided after the state courts ruled in Petitioner's case and because, unlike the juvenile murderers in Miller, Petitioner did not receive a mandatory sentence of life without the possibility of parole.

In sum, the California courts' rejection of Petitioner's disproportionality 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. 770, 785-87 (2011). Thus, Petitioner is not entitled to federal habeas relief on his disproportionality claim.*fn11


For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.*fn12


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.


NO. ED CV 12-691-GAF(E)

ADRIAN REYES, ) Petitioner, v. GREG LEWIS, Warden, Pelican Bay State Prison, Respondent.


Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.


DATED: ___________________________, 2012.



NO. ED CV 12-691-GAF(E)

ADRIAN REYES, ) Petitioner, )) v. ) GREG LEWIS, Warden, ) Pelican Bay State Prison, Respondent.


Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed without prejudice.

DATED: ____________________________, 2012.


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