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Dale Lloyd Cottrell v. Robert H. Trimble

July 25, 2012


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge



Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the parties' consent and the subsequent order of the Court filed on February 25, 2005, the matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 301. Pending before the Court is the first amended petition (FAP) for writ of habeas corpus, filed on September 26, 2007 (doc. 58).

I. Jurisdiction and Substitution of Respondent Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Plaintiff claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Fifth, Sixth, and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged.

Further, the conviction challenged arises out of the Madera County Superior Court (MCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

On February 4, 2005, Respondent's counsel filed a notice of appearance for Respondent James A. Yates, Warden of PVSP. Petitioner had thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Reference to the Adult Facilities Locator on the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that currently, P. D. Brazelton is the Acting Warden of PVSP. Fed. R. Civ. P. 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office. The Court therefore concludes that P. D. Brazelton, Acting Warden of the Pleasant Valley State Prison, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of James A. Yates.

In summary, the Court concludes that it has jurisdiction over this action and over Respondent Brazelton.

II. Procedural Summary

Petitioner is incarcerated at Pleasant Valley State Prison (PVSP), located in Coalinga, California, pursuant to a judgment of the Superior Court of California, County of Madera, of conviction following a jury trial of second degree murder (Cal. Pen. Code § 187(a)) with personal use of a firearm (Cal. Pen. Code §§ 1203.06(a)(1), 12022.5(a)). (Clerk's Transcript (CT), LD *fn1 17, 30.)

An initial preliminary hearing was held on February 18, 1998, at which Petitioner was represented by David Smothers.

(Unpaginated Supplement to habeas corpus petition [HC2, Cal. Supreme Ct. no. S115848] received Jan. 27, 2004, mot. to set aside information pursuant to Cal. Pen. Code § 995 at 2.) A motion to set aside the information made by Mr. Smothers was granted. (Id., decl. of David Smothers, Esq., dated April 30, 1999.) A second preliminary hearing was held on September 11, 1998, and Petitioner was held to answer. (LD 19.)

The trial commenced on January 19, 1999, and concluded on January 22, 1999. (RT (LD 20-21) 6, CT 30.) On June 18, 1999, the trial court denied a motion for a new trial in which Petitioner challenged the adequacy of his trial counsel's investigation and performance at trial. The ineffective assistance claim was based on counsel's alleged failure to 1) investigate and present forensic evidence, and 2) contact, investigate, and present as a witness Michael Avila, who could have testified to potentially impeaching statements made by a jailhouse informant, Rudy Sanchez, who had testified to Petitioner's extra-judicial admissions at Petitioner's trial.

On June 18, 1999, the court sentenced Petitioner to fifteen (15) years to life for second degree murder plus four (4) years for the personal use of a gun. (CT 206-208.) The four-year enhancement was stricken on June 25, 1999. (CT 210.)

Petitioner appealed to the California Court of Appeal, Fifth Appellate District (DCA) (no. F033539) on the grounds argued in the motion for a new trial, namely, that he had been denied his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel. (Appellant's Opening Brief (AOB), LD 1, 12-18.) During the pendency of the direct appeal in February 2001, Petitioner filed in the DCA a petition for writ of habeas corpus (no. F037604, HC1-DCA pet., LD 4 as supplemented on October 7, 2010) in which he raised the issues presented in the appeal concerning the ineffective assistance of trial counsel. Further, in the collateral proceeding, Petitioner presented statements from third parties that the informant, Rudy Sanchez, had recanted his testimony and had stated that he had been cooperating with the authorities in exchange for not being prosecuted for having used drugs during his incarceration in jail. (LD 5.) The DCA affirmed the conviction and denied the habeas petition in an opinion (DCA OP) on October 19, 2001. (Pet., Exs. Vol. II (doc. 3) Exh. ["Page"] I.)

Review by the California Supreme Court was summarily denied on January 3, 2002. (No. S102217, Pet., Ex. II (doc. 3).)

Petitioner commenced a second round of habeas review by filing on January 16, 2003, in the Madera County Superior Court (MCSC) a second habeas corpus petition (case no. CV 19645, HC2-MCSC, LD 8) in which he raised the issues he had raised in the first habeas petition filed in the DCA as well as ineffective assistance of trial and appellate counsel for failure to investigate and argue a violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights with respect to pretrial statements of Petitioner (admitted without objection at trial) alleged to have been involuntary and obtained without the appropriate Miranda protocol. (LD 8.) In support of the Madera petition, Petitioner submitted jail and hospital records. (Id.) The MCSC found insufficient justification for renewal of the issue of ineffective assistance of trial counsel on habeas corpus, citing to In re Harris, 5 Cal. 4th 813, 825, 829 (1993). The MCSC further stated that with respect to appellate counsel, Petitioner had failed to show entitlement to relief by a preponderance of the evidence. (Pet., Exs. Vol. II (doc. 3), Ex. III; Att. to FAP (doc. 59), 121-22.)

Petitioner continued his second round of state habeas by filing a habeas petition in the DCA (no. F042700) on March 23, 2003, raising the ineffective assistance of appellate counsel for not having raised claims of trial counsel's ineffectiveness, including the claims relating to Petitioner's pretrial statements, as well as a due process violation by the prosecution by failing to provide evidence regarding the informant pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (HC2-DCA, LD 10.) The petition was denied on April 3, 2003, without a statement of reasoning or authority. (Doc. 59, 124.)

Petitioner completed his second round of state habeas by filing a petition for writ of habeas corpus in the California Supreme Court on May 14, 2003, in which he raised the ineffective assistance of appellate counsel, the Brady issue, and admission of statements that were involuntary in violation of due process and obtained without Miranda protections. (Case no. S115848, HC2-CASC, LD 11.)

The record filed in this Court, including the California Supreme Court's docket as well as Respondent's supplementation and correction of the record filed in 2010, reflects that Petitioner filed numerous documents in the action, including an application to supplement the petition "Received" on August 7, 2003 (LD 12, 1; LD 14); a supplement to the petition to verify a previous supplement "Received" on January 12, 2004 (lodged as LD 31 by Respondent on October 7, 2010; LD 14); a memorandum to "CLARIFY MINOR CLERICAL 'NUMERICAL' MISLAYS IN SUPPLEMENT HABEAS CORPUS," "Received" on January 27, 2004 (lodged as LD 33 by Respondent on October 7, 2010; LD 14); supplemental exhibits to the petition "Received" on January 27, 2004 (lodged by Respondent as LD 32 on October 7, 2010; LD 14); a supplement to amend the petition and memorandum in support "Received" on February 2, 2004 (LD 13, LD 14); and Petitioner's application to supplement and to amend the petition "Received" on February 2, 2004 (lodged by Respondent as LD 34 on October 7, 2010; LD 14).

In his supplemental filings, Petitioner raised the following issues: 1) allegedly ineffective assistance of trial counsel by failing to investigate and present exculpatory forensic evidence in the form of an opinion of Stephen O'Clair, Senior Criminalist of the California department of Justice (DOJ), that the presence of the casing left in the chamber of the gun indicated a self-inflicted gunshot wound (LD 12, 13); 2) allegedly ineffective assistance of trial counsel in failing to present results of gunshot residue tests run on the victim as interpreted by Steven Dowell, a research criminalist, who found that the victim might have discharged a firearm or had her hands otherwise in an environment of gunshot residue, which Petitioner argued tended to show a self-inflicted wound (LD 12, 13); 3) allegedly ineffective assistance of trial counsel based on the failure to hire an expert to examine all the evidence, as Joseph Orantes, an expert hired for the motion for a new trial, had done and had concluded that the victim died of a self-inflicted contact wound (LD 12, 13); 4) allegedly ineffective assistance of trial counsel based on the failure to investigate and call Michael Avila as a witness to impeach Sanchez, the jailhouse informant (LD 12, 13); 5) a violation of Petitioner's Fifth and Fourteenth Amendment rights by the prosecution's failure to disclosed material favorable evidence, including a report concerning Sanchez's possession of cocaine in jail that provided a basis for a finding of bias, motive, and interest of Sanchez in testifying against Petitioner (LD 12, 13); 6) violation of Petitioner's rights to a fair trial and due process based on use of involuntary statements and statements made without Miranda warnings (LD 12, 13); 7) cumulative error based on violations of Petitioner's rights to due process, equal protection, fair trial, and effective assistance of trial counsel in violation of the Fifth, Sixth, and Fourteenth Amendments (LD 12, 13, 33); 8) allegedly ineffective assistance of trial counsel in failing to move to exclude Petitioner's pretrial statements (LD 12, 33); 9) allegedly ineffective assistance of appellate counsel in failing to raise issues concerning trial counsel's ineffective assistance, Brady error, and admission of Petitioner's post-trial statements (LD 12, 33); 10) cumulative error (LD 12, 33); and 11) insufficiency of the evidence to support the conviction (LD 13, 40).

Petitioner submitted in the supplemental filings the declaration of Stephen J. O'Clair and his summary report; Steven Dowell's report; the declaration and analysis of forensic analyst Joseph M. Orantes; the declaration of David Smothers; the declarations of Cheri Bodle and Steven Rosenlind; documents allegedly written by, or written upon by, the informant, Rudy Sanchez; reports from the Madera County Jail; and medical records from the hospital. (LD 12, 32.) Other exhibits were found in the original habeas petition filed in the action before the California Supreme Court. (LD 12.)

The Supreme Court denied the petition on June 16, 2004, without a statement of reasoning or authority. (Doc. 59 [S115848], 126; LD 14 (our docket doc. 17), 2.)

Petitioner filed the original petition in this Court on July 7, 2004, and Respondent filed a motion to dismiss on February 4, 2005, arguing that Petitioner had failed to exhaust his claims that his Fifth, Sixth, and Fourteenth Amendment rights had been violated by use of his involuntary statements. On March 29, 2005, the Court ruled that the record before the Court did not show that the California Supreme Court had failed to consider supplemental materials submitted to it in which the issue was raised; thus, the claims had been exhausted.

Respondent filed an answer on June 14, 2005. The matter was stayed from December 2, 2005, through October 16, 2007, to permit Petitioner to undertake further state court proceedings.

Petitioner commenced a third round of state habeas proceedings by filing a petition for writ of habeas corpus in the MCSC on November 3, 2005. (HC3-MCSC, doc. 36, 6 through doc. 36-1, 59.) On November 8, 2005, the MCSC ordered the Attorney General of the State of California to file a return to the petition, in which the court stated that Petitioner claimed 1) the prosecution withheld exculpatory evidence; 2) his attorney was ineffective for failing to request discovery and for failing to investigate the jailhouse informant; and 3) the cumulative effect of several errors deprived Petitioner of due process and resulted in a miscarriage of justice. (LD 23.) Respondent filed an answer (LD 24), and Petitioner filed a traverse and two amended traverses (LD 25-27).

By order dated October 27, 2006, and docketed on November 20, 2006, the MCSC denied the petition and made specific findings. (LD 28.) It found that Petitioner had not alleged sufficient facts to justify piecemeal presentation of successive and/or delayed claims, and thus the petition was denied. (LD 28, 2.) As to Brady error predicated on the prosecution's failure to disclose that 1) the informant worked for the prosecution, was wearing a wire, and was recording his conversations, and 2) a state crime lab report indicating there were no spermatozoa on a prepared slide from the murder victim's vaginal swab, the court found that Petitioner had not presented a verified, specific evidentiary basis for relief regarding the informant, and the evidence was insufficient to establish that the prosecution failed to disclose the lab report; even if not disclosed, the report would not have had any effect on the credibility of Petitioner's statements or other physical evidence that showed that Petitioner had sex with the victim shortly before she was killed; additional equivocal evidence that Petitioner might not have had sex with the victim was not material. (LD 28, 2.) Trial counsel's failure to discover recordings of Sanchez's conversations had not been shown to be prejudicial, and Petitioner's claim concerning counsel's failure to obtain information that the informant was in possession of drugs in jail in 1997 was untimely and had previously been rejected. (Id.) The claim of cumulative error was rejected because the court had found no legal error and concluded that Petitioner's factual allegations lacked credibility. (Id. at 3.)

On November 16, 2006, Petitioner continued with his third round of state habeas by filing a petition for writ of habeas corpus in the DCA (HC3-DCA) in which he raised the claims he had raised in the MCSC. (LD 29.) The DCA denied the petition and stated, "Petitioner is filing piecemeal petitions and the issue of Brady v. Marilyn (sic) (1963) 373 U.S. 83, is without merit. ( In re Clark (1993) 5 Cal.4th 750, 767-68.)" (LD 29.)

Petitioner filed a petition for review in the California Supreme Court on April 23, 2007. (LD 30.) On June 13, 2007, the Supreme Court denied the petition without a statement of reasoning or citation of authority. (LD 30.)

In September 2007, Petitioner filed in this proceeding the first amended petition (FAP) (doc. 58) with attachments (doc. 59) that is presently pending before the Court. In October 2007, the stay of this action was vacated, and a response to the petition was ordered to be filed. Respondent filed an answer to the FAP on June 5, 2008, in which it was admitted that most of Petitioner's grounds or claims were exhausted, none of the grounds was entirely procedurally barred or barred by non-retroactivity, and the petition was not barred by the statute of limitations. (Doc. 75, 4.) Petitioner filed a traverse on August 18, 2009. (Doc. 98.)

In response to directions from the Court, Respondent filed on October 7, 2010, corrections to the answer and a supplemental notice of lodging with respect to the petition filed in the California Supreme Court during the second round of state habeas proceedings.

III. Standard of Decision and Scope of Review Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.

Clearly established federal law refers to the holdings, as distinguished from the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.

A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render a state court's conclusions unreasonable. Id. In order to obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398.

In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness.

IV. Admission at Trial of Petitioner's Pretrial Statements in Violation of Petitioner's Fifth, Sixth, and

Fourteenth Amendment Rights

A. Introduction

Petitioner was convicted of having murdered Cathy Bonham, who died on the night of November 24, 1997, in Petitioner's presence and in his car of a gunshot wound inflicted at close range with a gun registered to Petitioner. (RT (LD 20-21) 8-9, 20-22.) There were no other eye-witnesses. Petitioner did not testify at trial, but law enforcement officers testified concerning extra-judicial statements made by Petitioner to them after Bonham's death.

Petitioner argues that introduction of these statements at trial violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the Constitution. He argues that some of the statements were involuntary or coerced because of his mental and medical condition, ingestion of medications and intoxicants, and law enforcement officers' alleged use of coercive tactics. He contends that some of the statements were taken in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966).

B. Decision on the Merits to Be Reviewed

In deciding the appropriate deference to be given to a state court decision, it must be determined whether the claim was adjudicated on the merits within the meaning of 28 U.S.C. § 2254(d), which limits habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings...." A state has adjudicated a claim on the merits within the meaning of § 2254(d) when it decides the petitioner's right to relief on the basis of the substance of the constitutional claim raised, rather than denying the claim because of a procedural or other rule precluding state court review of the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

A state court's denial of habeas relief without a statement of reasons is presumed to have been adjudicated on the merits in the absence of any indication or state law procedural principles to the contrary. Harrington v. Richter, 131 S.Ct. at 784-85. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. Id. at 785. Where a petitioner has failed to show that the California Supreme Court's decision did not involve a determination of the merits of his claim, a summary denial of relief will thus be considered to be an adjudication on the merits. Id.

Here, Petitioner's substantive claims concerning the admission of his pretrial statements were raised before the California Supreme Court. In denying the motion to dismiss these claims that was previously filed by Respondent in this action, this Court determined that Petitioner had presented the claims to the California Supreme Court in his second round of habeas corpus proceedings (HC2-CASC) in supplements to the petition that were stamped "Received." (Doc. 22, 5-7.) In the ruling on Respondent's motion to dismiss, this Court stated that whether the California Supreme Court actually ruled on Petitioner's claims was unclear. (Doc. 22, 6.)

The California Supreme Court denied the petition for writ of habeas corpus on June 16, 2004, without a statement of reasoning or authority. The decision of the California Supreme Court was not limited to procedural points and purported to be a decision on the petition as a whole. The Court concludes that it has not been shown that the California Supreme Court's decision did not involve a determination of the merits of Petitioner's claims. Pursuant to Harrington v. Richter, 131 S.Ct. at 784-85, it is concluded that the summary denial of Petitioner's petition (HC2-CASC) constituted an adjudication on the merits within the meaning of 28 U.S.C. § 2254(d)(1).

The California Supreme Court's denial of the petition for writ of habeas corpus on June 16, 2004, without a statement of reasoning or authority, was the last decision concerning Petitioner's pretrial statements. Where a state court has reached a decision on the merits but provides no reasoning for the decision, the Court will review the record to determine whether the state court decision was objectively unreasonable.

Cullen v. Pinholster, 131 S.Ct. 1388, 1402. The petitioner still has the burden to show that there was no reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S.Ct. at 784. The correct analysis has been described by the Supreme Court as follows:

[A} habeas court must determine what arguments or theories... could have supporte[d] 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.

Cullen v. Pinholster, 131 S.Ct. at 1402 (citing Harrington v. Richter, 131 S.Ct. at 786).

Accordingly, this Court will review the record to ascertain whether or not the California Supreme Court's decision denying habeas relief on the claims was objectively unreasonable.

C. Facts

Petitioner relies on facts contained in the reporter's transcript, the transcript of the preliminary hearing, the supplemental clerk's transcript, and hospital records. (FAP 20-22, 40-42, 65-69.) Petitioner likewise relied on these sources in the pertinent proceeding (no. S115848) before the California Supreme Court. *fn2

The trial transcript reflects the testimony of Madera County Sheriff's Office Community Service Officer Diana Rankin, who on November 25, 1997, at approximately 3:18 a.m., received a 9-1-1 telephone call from Petitioner, who asked that officers be dispatched to his home. (RT 18-19.)

1. Petitioner's Statement to Deputy Campbell at

Petitioner's Home (First Statement)

Madera County Deputy Sheriff Tolbert Campbell, Jr., testified at trial that upon being dispatched on November 25, 1997, for a possible suicide victim in a car, he arrived at Petitioner's residence at approximately 4:09 a.m. He found a dead female dressed in a long sweater that extended below the waist with nothing underneath; she was in the passenger seat of Petitioner's car, which was located at the back of Petitioner's residence. (RT 20-22.) A black plastic pistol was observed beside the decedent's left hip. (RT 35.)

Deputy Campbell smelled alcohol on Petitioner and observed slowness or sluggishness in his actions and talking, but the officer did not consider Petitioner to be under the influence at that point. Petitioner was lucid and was able clearly to articulate and to explain himself; he could talk coherently, pronounce words correctly, and follow a train of thought, although at times he seemed anxious, and the volume of his voice went up and down. He did seem to meditate or think about the answers to questions before answering. (RT 23-24, 32.)

Later in the conversation, Petitioner admitted that he was using prescription medication, and he had consumed a six-pack of beer in his car. (RT 24, 26, 32.) Petitioner said that the medication was Elavil, which he had taken for nine years; Petitioner remarked that he was very tolerant of its effects. (RT 39-40.) The deputy did not see Petitioner directly put medication in his mouth, but he did see Petitioner take an unknown number of pills out of a bottle of medication handed to him by the deputy. Petitioner had taken a nap before he took the medication, but Campbell denied that Petitioner passed out. When Petitioner awoke, Campbell noted in a report prepared within twenty-four hours of the incident that Petitioner was anxious and shaking uncontrollably. He also noted that the odor of alcohol was strong, Petitioner seemed sluggish, and he was confused about the timing of events. (RT 32, 38.)

When the deputy asked Petitioner to explain the circumstances of Bonham's death and to start early in the evening with respect to the incident, Petitioner said that on the twenty-fourth between 8:30 and 9:00 p.m., he had consumed a pitcher of beer at the Raymond General Store. His daughter informed him by telephone at about 10:30 pm. that she had spoken by telephone with Cathy Bonham, who wanted Petitioner to call her. (RT 24-25.) Petitioner called Bonham, declined her offer to come visit Petitioner, and told her that he wanted to be alone.

On his drive home, Petitioner stopped at a gate two miles south of his home, parked, and sat for about twenty minutes while drinking beer and writing a suicide letter to Connie, his estranged wife. (RT 24-26.) Bonham pulled up in her car, came up to his window, and began talking, but Petitioner told her to leave him alone, and he started up his car and drove about a quarter of a mile into a gated area. Bonham followed him, parked behind his car, exited her car, opened the passenger door of Petitioner's car, and sat down in the passenger side of Petitioner's car. Petitioner ignored her, continued writing and drinking, and eventually picked up a gun that was lying in his lap. (RT 25-26.)

Petitioner told Campbell that he pushed the magazine release button, let the magazine drop out about a quarter of an inch, pulled the slide to the rear, released the slide back forward, pushed the magazine back up into the back of the pistol, put the gun to his head, and stated, "I want to die. I really want to die." (RT 36.) He then pulled the trigger; nothing happened because the weapon was empty at that point, and since nothing had been put in the chamber, it just clicked. (RT 27.) He repeated the process and again put the gun to his head, when Bonham reached over, took the weapon from him, pulled the slide back on the weapon and chambered a round, let it go forward, placed the gun to the left side of her head with her left hand, stated, "I want to die, too," and pulled the trigger; the gun discharged, and Bonham slumped into the seat. (RT 27-28, 36.)

When Campbell asked Petitioner to explain the story again, Petitioner said that Bonham put the gun directly to her head; Petitioner omitted from his statement the fact that she had pulled the slide to the rear and chambered the round. (RT 37.) He also said that he got the gun from the center console of his car instead of from his lap. (RT 37.)

Petitioner told Campbell that fear caused him to drive out of the property to the gate and then to return to the decedent's car to try to drive it out of the property, but he could not drive both vehicles, so he drove his car home. He paced for a while, called his estranged wife, tried to cover the body with a sheet from his bed but decided that it did not look right, and threw out the sheet. (RT 29.)

Campbell was somewhat confused by Petitioner's account because most people are not left-handed, and most women do not commit suicide by shooting a weapon. (RT 33-34.)

The deputy initially took Petitioner to the Madera County Sheriff's Department, where Campbell observed that Petitioner was unsteady on his feet, and his speech was slurred; it was necessary to assist Petitioner out of the vehicle. At that point, Campbell believed that Petitioner needed medical attention, so he took Petitioner to the Madera Community Hospital. (RT 39.)

Petitioner alleged in the petition before the California Supreme Court that when officers began to arrive on November 25, he was still in shock and unaware of the passage of time. He was immediately detained in custody and guarded by officers, deprived of his freedom of action in every significant way, and not allowed to use his phone to call family or anyone for medical or legal help. (LD 11, 4.) He had begged on the 9-1-1 call not to talk about the incident any more. (LD 11, 4.) Further, Deputy Campbell had Petitioner repeat his statements many times and had him back up to different parts of his statements, which confused Petitioner. Petitioner alleged that his "nap" at his home was actually an instance of his having passed out from an overdose of Elavil. (LD 11, typed p. 18; LD 12, 10.) He alleged that it was obvious that he needed medical attention and had been suicidal earlier in the night, but they allowed him to take more medication. (LD 11, typed p. 19.) Petitioner alleged he was detained on the floor in his house in one spot while being guarded by officers. (Id. at typed pp. 19, 21.) Officers used leading questions, fed him suggestions, backed up the narrative, and badgered him. (Id. at typed p. 21.)

2. Statement to Detective Michael Molsbergen

at Petitioner's House (Second Statement) Detective Michael Molsbergen of the Madera County Sheriff's Office testified at trial that he arrived at Petitioner's house on November 25, 1997, at about 6:15 a.m. Deputy Campbell was still at the scene, which had been secured by additional officers. In the daylight Molsbergen observed Petitioner's car and the decedent; he confirmed Deputy Campbell's observations and further discovered a set of the decedent's car keys looped around the decedent's right thumb and a pair of shoes on the right floorboard near her feet. (RT 41-44, 63.)

Molsbergen went to the house to talk to Petitioner, who was asleep. Molsbergen woke him up, but it was not easy because Petitioner was kind of groggy. Right after Petitioner awoke, he was not well oriented, his mannerisms were sluggish, and his sense of time was not very good. He took two to four minutes to get his bearings; then between 6:30 and 7:00 a.m., the detective initiated an interview and spoke with Petitioner in his living room. (RT 48-49, 101-02.) The detective could not recall if he smelled alcohol on Petitioner. (RT 101.)

Early in the conversation, Petitioner told Molsbergen and Detective Bump, who was also present, that the decedent had tutored Petitioner's daughter, Jasmine. Petitioner said that while he was at the Raymond General Store drinking beer, he had discussed with Bonham the possibility of her coming up to Petitioner's place. (RT 50.)

When asked what happened, Petitioner said he had parked at the gate of property owned by Don English while feeling very depressed. He was writing a suicide note when Bonham arrived and got in the car. (RT 49-51.) Petitioner said he picked up his pistol, which he kept in the car, released the magazine of the gun, lowered it slightly from the locked position, pulled the slide back, released it, put the firearm to his own head, and pulled the trigger; the gun did not fire. Petitioner again pulled the slide, cocked the weapon, and put the gun to his head. Subsequently Bonham took the weapon from his hand and told him that he was not the one who should kill himself; rather, it was she. Petitioner told Bonham not to, but Bonham put the gun to her head, pulled the trigger, and the gun went off. (RT 51-52.)

In a panic, Petitioner drove to his house, arrived somewhere between 12:00 and 1:00 a.m., and called 9-1-1. (RT 52.) Molsbergen testified that the original 9-1-1 call came in about 3:20 a.m. Petitioner also said that he called his wife. (RT 52-53.)

Molsbergen saw that the bed in Petitioner's bedroom was devoid of sheets, blankets, or coverings of any kind, and there were no sheets in the dryer. When asked what happened to the bedding, Petitioner said he had burned it in a rock-lined barbecue pit by his house because although he had intended that the bedding cover the victim in case Jasmine came outside, it did not work very well, so he burned it. Molsbergen found some pieces of satin in the fire pit. (RT 53-54.)

3. Statement to Detective Molsbergen at the Hospital (Third Statement)

Molsbergen testified at trial that on November 26, 1997, at 1:15 a.m. at the hospital, he had a second conversation with Petitioner after Molsbergen informed Petitioner of his Miranda rights, and Petitioner stated that he understood his rights and agreed to speak with the detective. A tape and transcript of the interview were admitted at trial. (RT 63, 79; Clerk's Supp. Transcript (CST) [Tr. Exh. 36, LD 18], 1-15.) The detective testified that he received a call at about 12:45 a.m. from the deputy at the hospital, who reported that Petitioner said he wanted to make a statement. (RT 103.)

Petitioner gave a somewhat narrative statement that he had not expected Bonham to come up that night but did expect her to come up the next day. He stated that he put the gun to his head, pulled the trigger, and it did not go off; then Bonham took the gun, did the same, pulled the slide, let it go, and then put the gun to her head; however, Petitioner told the detective that this time he and she could see that a round had gone into the chamber, so Bonham fired the gun out of the window. Then Bonham lowered the magazine of the gun again, cycled the slide, put it to her head, stated, "See there's no round in the chamber now," and the gun fired. Petitioner said that when the gun discharged, he was reaching for the gun and said to let him check it or that she did not check it first for a round. Petitioner did not say that the decedent had made any other comments in the conversation. (RT 64-68; Clerk's Supp. Transcript (CST) [Tr. Exh. 36, LD 18], 2,7.)

Records from the Madera Community Hospital were before the California Supreme Court. (Pet., case no. S115848, LD 11.) They reflect that at 17:03 on November 25, 1997, Petitioner was admitted for an Elavil overdose; he was discharged on November 27, 1997, at 10:45. However, nurses' notes reflect a lavage procedure earlier at 11:04 on November 25, followed by removal of the tube at 11:10; Petitioner was lethargic and mumbled when answering questions. Thus, it may be inferred that Petitioner was actually being treated at the hospital long before 17:03. By 12:52, Petitioner responded to his name but did not make conversation. Results of one ECG performed on November 25 are not legible but suggest some abnormality (notation of "Otherwise normal ECG" is visible), but another ECG with a date of service of November 25 reflects a check mark next to "Normal ECG." (LD 8.)

On November 26, 1997, by 07:00, it was noted that Petitioner was awake, alert, and talkative; he expressed his innocence and his hope that the investigation would show his innocence. He continued to complain of seeing green spots. He was alert and awake at 10:30, and he was resting with only intermittent visions of green spots by 13:25. It was noted that the detective was there to speak with him at 13:40. At 16:05 and 17:45, Petitioner complained of green spots, sharp pain to the chest, and palpitations; he cried intermittently and spoke about his family. At 21:15, Petitioner was received from the emergency room with complaints of chest pain and seeing green spots since the morning; at 22:00, Petitioner was awakened for medication, and he complained of seeing green spots and of concern about the consequences of an overdose; he wanted to talk to a doctor. At 23:50, Petitioner slept with no apparent discomfort. The final diagnosis was drug overdose and chest pain.

The medical records reflect that Petitioner was prescribed Xanax, also called Alprazolam, from November 25 through 27 for anxiety. Notations concerning the drug appear next to the dates of November 25 and November 26, but the precise dates and times at which the drug was administered to him are not clearly and legibly set forth. *fn3

Petitioner also submitted what appear to be printed materials from unspecified sources concerning the general effects of Elavil (Amitriptyline) and Xanax (Alprazolam).

Petitioner alleged in his petition before the California Supreme Court that statements were recorded at the hospital after his emergency treatment and before he had fully recovered; he had been administered unknowingly and involuntarily a tranquilizer, and he did not have the mental capacity to waive his Miranda rights due to alcohol and an overdose of drugs that resulted in mental incapacity; Petitioner was not allowed to detoxify before undergoing interrogation by multiple officers. (LD ll, typed pp. 3, 15.)

Moldbergen admitted that he had said to Petitioner that his statement was pretty much the same story he had told before. (RT 119.)

4. Statement to Detectives Molsbergen and Bump at the Sheriff's Office (Fourth Statement)

Detective Molsbergen testified concerning a fourth statement, which was recorded, and a transcript of the recording was introduced in evidence at trial. When Petitioner was released from the hospital around noon on November 27, 1997, Molsbergen picked up Petitioner, brought him to the sheriff's office, and interviewed him for a third time there with Detective Chuck Bump from 12:20 p.m. until 1:03 p.m. (RT 80-81, 110; CST [Tr. Exh. 37, LD 18] 16-52.) Molsbergen testified that Petitioner had asked to speak again and initiated the conversation. The detective read Miranda rights to Petitioner, who agreed to talk and waived his rights. (RT 103, 80-81; CST 16.)

Petitioner said that at the general store where he was drinking beer, he called Bonham, who said she had called Jasmine to see about bringing Jasmine's math book home and was uncertain if she was coming up. (CST 16-17.) Petitioner was depressed about his wife, went to the English gate at about 9:30 or 10:00, and parked; he knew that Bonham would see him sitting there if she did come by, and they could drink beer together. He drank beer and wrote a note to his wife. After about a half hour or forty-five minutes, Bonham arrived. As was their custom when they would meet, they drove to a place where no one could see the two married persons drinking beer. Bonham wore a long sweater, and Petitioner did not know if she had anything under it; sometimes Bonham would come and meet him in a nightgown if it was late. (Id. at 17-18, 26.)

Petitioner said he did not know if he would have sex with her that night; he had sex with her two or a very few times before, but most of the time they would just fool around so she would not get pregnant. (Id. at 25, 44.) Cathy Bonham's husband, Jim, and Petitioner had argued, and Petitioner had not had sex with Cathy after that conversation, in which Petitioner had promised he would never be around her again; Petitioner estimated it had been a week and a half since he last had sex with her. (Id. at 44.)

Petitioner got out his gun and said he felt like committing suicide but would or could not do it because of Jasmine. He popped the clip, pulled it down a little bit, cocked it, and "(Inaudible)" to his head, saying that was just what he felt like doing to himself. (Id. at 19.) Bonham reminded Petitioner that he had to think of Jasmine, and she took the gun from him. He told her to wait a minute, but she said she knew what she was doing with a gun. Then she cocked it with a thumb and a finger and shot it out the window; she gave the gun back to Petitioner at his request.

Petitioner sat there with the clip, cocking it back and forth, and then he slid the clips close to the top so that it was not clipped; then he put it to his head again and said it was what he would do if he did not have his daughter. Bonham then said, "Let me show you what that looks like," and she took it and put it against her head. She said, "Doesn't this look terrible?" She pulled the trigger, and at once she had a blank look on her face, her arm fell down, a little bit of blood started trickling out of the hole where she was shot, and she fell to the side. (CST 18-19.)

Petitioner told Molsbergen and Bump that he could not remember how many times each person cocked the gun, but Bonham had shot the gun out the window. (Id. at 30.)

Petitioner felt panic, confirmed that Bonham was dead, drove home, called his wife to come get Jasmine, spoke with his father and sister, and told them someone had died. Petitioner said that despite having had several beers, he still knew what he was doing. (Id. at 19.) He started driving Bonham to the hospital and then returned to his house, drank more beer, and thought that he did not want his estranged wife, whom he wanted to have back, to know that he had had a relationship with Bonham, who was his wife's "old best friend." (Id. at 20.) Bonham had been in his bed watching TV with Petitioner a few days before, and Petitioner thought authorities might search the house and find "hair spray and whatever" and know that Bonham had been there. (Id. at 20.) Petitioner burned the sheets and everything on his bed with gasoline in a barbeque so his wife would not find out that Bonham had been in Petitioner's bed. (Id. at 21.)

Petitioner said that the gun had been lying crosswise on the seat and the console. Upon the arrival of his wife, Connie, and her companion, a person named "Spanky," Spanky went back to the car to confirm that Bonham was dead, and she admitted to Petitioner that she touched the gun but wiped if off. (Id. at 21.) Petitioner gave the note he had written to his wife. Petitioner instructed Connie and Spanky to report the shooting as soon as they got home, and then he reported it himself. (Id. at 22.)

Petitioner did not recall that at his home he had said that he had wrapped the decedent in the bed linens; he had taken Elavil before those questions were asked, and he was under the influence and falling asleep. (Id. at 34.) Petitioner said that he took an overdose of Elavil thirty-five to forty minutes before Molsbergen had talked with him, and that he had told the other officer that he took a handful in order to sleep. (Id. at 19, 40-41.) Petitioner had a pitcher of beer with his meal, returned and drank another pitcher over a long period of time, and then bought some beer. He had not taken medication that day. (Id. at 35-36.) Petitioner had taken Elavil for eight years for dizzy spells with irregular heartbeat; when he took Elavil, it would not change him or do anything to him except eliminate the spells. (Id. at 45-46.)

During the encounter, Molsbergen walked out a few times to get water and a tape; he did not recall if he was in the interview when Officer Bump accused Petitioner of having said he had shot out the window himself. (RT 107-08.)

Molsbergen testified at trial that at some point he told Petitioner about the decedent's car having been at Petitioner's home that night; Molsbergen thought it was possibly credible information when he questioned Petitioner, but he ultimately determined that it was not credible information. (RT 84.) Further, the absence of the bedding from Petitioner's bed originally had led officers to believe that the shooting could have occurred somewhere other than the vehicle. (Id. at 86.) It was questioned whether or not the decedent had been shot in the car, and Molsbergen presented that to Petitioner, who insisted that the shooing occurred in the vehicle. Ultimately, Molsbergen had no evidence to show that the shooting did not occur in the car. (Id. at 107.) He recalled saying to Petitioner that in the previous statement, Petitioner had said he fired the gun out the window once; however, Molsbergen had not heard that from Petitioner, was not sure where he obtained the information, did not intend to say something known to be untrue when he said it, had no evidence to support it, but had recalled it as having been said in one of the interviews. (Id. at 108-11.)

At trial Molsbergen testified that he recalled that Officer Bump had asked Petitioner to go to the sheriff's department for a nitrate specimen, a test for determining if a person has fired a handgun. (Id. at 112.) That test was not done on Petitioner. (Id.)

Petitioner alleged in his petition before the California Supreme Court that he was given Xanax and was under its influence when a recorded statement was taken, and when he was released from the hospital and a second recorded statement was taken. (LD 11, typed p. 16.) He alleged that a prison physician had reviewed his records and was shocked that statements of Petitioner were used in court because at an unspecified time, Petitioner was near possible heart failure. (LD 11, typed pp. 2-3.)

Petitioner alleged that after his stomach was lavaged and he experienced sinus tachycardia, he had blurred vision and saw green spots for three days; he opined that at the house he had confusion and hallucinations. (LD 11, typed p. 21.) When the statement was taken at the sheriff's office after Petitioner's release from the hospital, Petitioner did not have the mental capacity to waive his rights because he was under the influence of Xanax; he was fed numerous details that did not occur and told to believe them. (Id. at typed pp. 21-22.)

Petitioner alleges in the FAP that before the tape recorder was turned on, Molsbergen made knowingly false statements that the fatal shot could not have occurred in the car, forensics had proven there was not enough blood in the car, and the victim's car had been seen parked behind Petitioner's car at his house the night of the shooting. (FAP 68.)

5. Statement to Detective Molsbergen during the Walk-Through (Fifth Statement)

On December 2, 1997, Molsbergen interviewed Petitioner a fourth time during a walk-through at the scene of the shooting; the interview resulted from Petitioner's statement to District Attorney's investigator Fabian Benabente that Petitioner would like to go out and show the officers the scene. (RT 103, 109.) Molsbergen was within earshot of all that was said; he recalled telling Petitioner that the last time Petitioner had said that he fired the gun out the window once; however, the detective had not heard that from Petitioner but recalled it as having been said. (Id. at 108-09.) Another officer told Petitioner that the body could not have been dead in the car because of a lack of blood in the car. (Id. at 118.)

Detective Molsbergen had thought it possible that the shooting could have occurred somewhere other than in Petitioner's vehicle because of the burned bedding found in the barbeque outside Petitioner's house. (RT 85-86.) Molsbergen testified at trial that when interviewing a suspect, he tried to nail down the story. One tactic was trying to tell a suspect that something could not have been one way to see if they changed their story; however, he did not use that tactic in the present case or intentionally deceive Petitioner. He had information that the decedent's car had been at Petitioner's house earlier, but he had no physical evidence to support it; he confronted Petitioner with that statement, and Petitioner insisted the car was never at his house to his knowledge. The detective questioned whether or not the decedent was shot in the vehicle. (Id. at 105-06.) Molsbergen was not sure where he got the information that Petitioner had admitted to firing the gun out the window, but there was no evidence to support that. (Id. at 111.)

D. Analysis

The voluntariness of a confession is a legal question not entitled to a presumption of correctness, but a state court's findings of fact underlying the issue are entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). *fn4

Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1997). Here, the state court made no express findings.

In determining whether a statement or confession was involuntary and obtained in violation of the principles of due process of law protected by the Fifth and Fourteenth Amendments, a court examines whether a defendant's will was overborne by the circumstances surrounding the giving of the statement or confession. Dickerson v. United States, 530 U.S. 428, 434 (2000). A court considers the totality of all the surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Id. Thus, circumstances such as the nature and length of the questioning, the location of the questioning, the presence or absence of advice as to rights, the use of tactics such as fear or trickery, and the maturity, physical condition, mental health, and other circumstances of the accused are considered. Withrow v. Williams, 507 U.S. 680, 693-94 (1993). However, it is clearly established that coercive police activity is a necessary predicate to a 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).

1) The First Statement

Here, there were no circumstances of coercion during the first conversation with Deputy Campbell. Campbell asked Petitioner to repeat his story, but there is no evidence of prolonged interrogation or badgering. The deputy had arrived at about 4:00 a.m., had reviewed the physical evidence before talking to Petitioner, and then after the questions, Petitioner had taken a nap and was still asleep when Detective Molsbergen arrived at about 6:15 p.m. In view of the time frame and the vague, general nature of Petitioner's assertions of improper questioning, it is reasonable to conclude that Petitioner's allegations of prolonged, badgering interrogation were exaggerated or untrue. Compare, Colorado v. Connelly, 479 U.S. 157, 164 n. 1 (collecting cases reflecting more prolonged, repeated sessions of questioning accompanied by overt coercion or deprivation of necessities such as sleep, water, or food).

With respect to the location of the questioning in Petitioner's living room, Petitioner himself had called the authorities to his home, and the nature of the questioning was consistent with an initial and basic attempt to determine what had happened, to ascertain the location of the death, and to locate any evidence. Although Petitioner alleged that he was directed to remain in one place, Molsbergen testified that when he arrived at the home, he saw Petitioner on a couch or ottoman in the living room. The officers were obviously engaged in securing the scene. Under these circumstances, some restriction from roaming about the premises was not sufficient to reflect coercion of a type that would overbear one's will. Considering all the evidence, it is reasonable to conclude that Petitioner was not as restricted as he later claimed.

Although Petitioner had consumed, and smelled of, alcohol and was slow in talking and acting, Deputy Campbell observed that Petitioner did not appear to be under the influence because he was lucid, coherent, and capable of articulation. Considering his recent presence at the death of a friend, Petitioner's anxiety, thoughtfulness, and confusion as to the precise time were not inconsistent with a capacity to answer questions. Petitioner related the pertinent events in reasonable detail and in chronological order. Although Petitioner alleged very generally that his repeated requests to make telephone calls were rejected, any refusal to permit him to continue to make calls to his family while he was conversing with the officers was not necessarily coercive, but rather was consistent with a desire to secure the scene and prevent interference with the investigation.

With respect to Petitioner's taking medication, it is not unreasonable to conclude that because Deputy Campbell did not observe the number of pills that Petitioner took, the deputy was uncertain of the amount of medication consumed and the possible extent of the effect of the medication. Further, in light of Petitioner's comment to the responding officer that he had taken his medication for many years and was very tolerant of its effects, his taking his medication did not reasonably signal an overdose or any undue, underlying distress or mental limitation. Petitioner's sleeping around dawn was likewise reasonably interpreted as reflecting tiredness; it further reflects that he was at liberty to behave as he desired absent interference with the attempt to secure the scene and gather information. Petitioner's assertion that he passed out, as distinct from falling asleep, lacks support in the evidence and is inconsistent with his later awakening, remaining conscious, and giving another coherent statement at his home before subsequently exhibiting signs of being under the influence of medication.

Further, the Court notes that merely being under the influence of a medication does not constitute being coerced. Cf. United States v. Kelley, 952 F.2d 562, 565-66 (9th Cir. 1992), disapproved on other grounds in United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997) (being on the verge of heroin withdrawal was held insufficient to demonstrate involuntariness where the defendant exhibited the ability to think rationally and where there were no circumstances of coercion); United States v. Lewis, 833 F.2d 1380, 1384-86 (9th Cir. 1987) (statements taken at a hospital several hours after the defendant was administered a general anesthetic were held to be voluntary where the defendant purported to feel all right, was responsive, and demonstrated unimpaired recollection); United States v. Martin, 781 F.2d 671, 672-74 (9th Cir. 1993) (statements made to police at a hospital were voluntary despite a defendant's being in pain and under the influence of Demerol, a pain-killing medication, where he was conscious, relatively coherent during the questioning, and sat up and spoke freely).

After considering the circumstances surrounding Petitioner's statement, the Court concludes that Petitioner has not demonstrated that his first statement was coerced or involuntary.

2. The Second Statement

With respect to Detective Molsbergen's questioning of Petitioner at his home to obtain Petitioner's second statement, Molsbergen observed that when Petitioner awoke, he got his bearings after a few minutes. Molsbergen did not see him ingest the medication. Deputy Campbell testified that it was after Petitioner took a nap that he awoke, anxious and shaking, and proceeded to take some medication from a bottle. Thus, the facts reasonably support a conclusion that Petitioner was not yet suffering from a drug overdose at the time Molsbergen interviewed him at the house.

Further, Petitioner's assertion that he had taken medication and was suffering from an overdose when he spoke with the detectives at his home was made in his fourth statement taken at the sheriff's office. (LD 18, 19, 25-26.) A reasonable fact finder could conclude that by that time, Petitioner had been arrested and desired to undercut the validity or reliability of his previous statements

Petitioner was able to relate to Molsbergen the previous night's history from before 9:00 p.m. when he was at the store in Raymond until he arrived home and made telephone calls. It was not until Petitioner was arriving at the sheriff's office that Campbell observed him exhibiting an unsteady step and slurred speech. Considering all the circumstances at the house, it is reasonably concluded there was no prolonged questioning, deprivation of the necessities of life, or other conduct that could be considered coercive. Petitioner has not shown that his statement was coerced or involuntary.

3. The Third Statement

The first statement given at the hospital occurred at 1:15 a.m. on November 26, about fourteen hours after Petitioner's lavage at 11:04 on November 25, and a few hours before nurses' notes reflect that he was talkative, declaring his innocence, and expressing hope that investigation would demonstrate his innocence. (LD 18, 1; LD 11.) Although Petitioner alleges that he was deprived of sleep, the records show that after the lavage, Petitioner was lethargic; thereafter, there are no notes for the afternoon and evening of November 25. In the FAP, Petitioner himself stated that he slept after his emergency treatment, awoke for questioning by officers guarding him, and then slept again until 1:00 a.m. on November 26, when he was questioned. (FAP 69.) Although Petitioner categorized the sleep as "medically induced," the meaning of this assertion is unclear. Nevertheless, it appears even from his own allegations that he was not deprived of sleep in the approximately thirteen hours that passed between the lavage and the interrogation.

Petitioner asserts that he lacked capacity because he had been given a tranquilizer. Petitioner provides no details concerning his condition that would warrant a conclusion that having been administered Xanax rendered him incapable of giving a statement. Further, there is no expert testimony concerning the timing and dosage of any tranquilizers or the effect on Petitioner's state of mind at the time. The copies of printed material concerning the medications lack a foundation and, in any event, do not demonstrate the effect of the medications on Petitioner at the pertinent time.

In addition, the transcript of the recorded statement reflects that Petitioner acknowledged that his rights had been read to him, and he understood that he was being questioned; he then proceeded to answer questions without reservation. (LD 18, 1.) There is no indication that Petitioner was unwilling to give a statement; indeed, to the contrary, when Petitioner gave his fourth statement at the sheriff's office after release from the hospital, Petitioner had inquired about when it was that Petitioner allegedly had said that Petitioner himself had shot the gun out the window. In response, Detective Molsbergen said:

No, as a matter of fact, it's on the other side of that tape that you and I talked at the hospital after you called and said you wanted to talk to us. (LD 18, 15.) Petitioner replied:

Okay, I did not fire that gun out the window. (Id.) Petitioner did not take the opportunity to contradict Molsbergen's characterization of the earlier recorded statement as having been pursuant to Petitioner's invitation or suggestion. The Court concludes that the evidence reasonably supports a conclusion that Molsbergen was summoned to the hospital at Petitioner's behest.

Considering the responsive, detailed answers given by Petitioner during the questioning, Petitioner's documented condition a few hours after the questioning, his willingness to talk about the death and his expressions of innocence to persons in the vicinity, his demonstrated understanding of the interrogation process, and his acknowledgment that he had been read his rights, it is reasonably concluded that Petitioner understood his rights and willingly gave them up when he proceeded to answer questions.

A valid waiver of Miranda rights generally results in a finding of voluntariness of a confession following the waiver. DeWeaver v. Runnels, 556 F.3d 995, 1003 (9th Cir. 2009), cert. denied, 130 S.Ct. 183 (2009) (quoting Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) and Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)). Petitioner's recorded acknowledgment of having been read his rights and being willing to give a statement militate against a finding of coercion.

With respect to the nature of the questioning and of any representations made to Petitioner during the questioning, the questioning included inquiries regarding what happened as well as requests for details concerning his meeting with Bonham and the shooting and for explanations of his burning of the bedding and his delay in contacting authorities. Petitioner was asked about the inconsistency of his previous statement that the death occurred about 10:00 p.m., when the 9-1-1 call came after 3:00 a.m., which resulted in his admission that he was mixed up as to time. (LD 18, 3-4.) He was apparently confronted with photographs of burned items, and he denied having burned any pants. (Id. at 12.) Molsbergen stated that the victim's car was seen parked behind Petitioner's car at Petitioner's house, but Molsbergen later stated that he had no evidentiary basis for that assertion. Petitioner denied having parked Bonham's car there or knowing that it was there, although he indicated that it was possible that she had been there when he was not there. (Id. at 5-6, 9, 13.) The transcript does not indicate that any other misrepresentations of fact were made by the detective with respect to this statement.

Generally, confronting a person with the evidence against the person is not in itself coercive. United States v. Orso, 266 F.3d 1030, 1039 (9th Cir. 2001) (overruled on another point in Missouri v. Seibert, 540 U.S. 600 (2004)). Further, although a misrepresentation of fact made by an officer during questioning is a relevant circumstance, it is generally not sufficient in itself to render a statement involuntary; rather, the focus is on whether considering all the circumstances, the confession is the product of an essentially free and unconstrained choice by its maker. Frazier v. Cupp, 394 U.S. 731, 737-39 (1969) (misrepresentation that another party had confessed); Pollard v. Galaza, 290 F.3d 1030, 1033-34 (9th Cir. 2002).

Here, the misrepresentation concerning the presence of the victim's car at Petitioner's house was not critical to the pertinent transaction; Petitioner himself stated that it was possible that the car was there, but it would have been before he had arrived and without his knowledge. It thus does not logically tend to show coercion either on its own or in light of all the other circumstances.

In summary, Petitioner's assertions concerning his lack of capacity during the questioning at the hospital are vague and conclusional. There is no expert opinion testimony concerning Petitioner's actual state of mind at the pertinent time. General information regarding the effects of Xanax or Elavil lacks the specificity necessary to pinpoint the precise effect of drugs or alcohol on Petitioner at any specific time. It does appear that Petitioner continued to have green visions during his hospitalization, but no other records reflect symptoms that could possibly interfere with giving a statement. A review of the transcript shows that the questioning was not prolonged. Petitioner's answers were responsive and detailed; his only uncertainty or confusion was with the precise times of the events, which was understandable concerning Petitioner's anxiety and his ingestion of alcohol on the evening of the death.

The Court concludes that the totality of the circumstances attending Petitioner's first statement at the hospital do not demonstrate coercive conduct or that Petitioner's will was overborne. Compare, Mincey v. Arizona, 437 U.S. 385, 398-99 (1978) (confession held to be involuntary where the defendant had been seriously wounded just a few hours earlier and ultimately required a month's hospitalization, had been described by his doctor on arrival at the hospital as "depressed almost to the point of coma," had received some treatment but was still in the intensive care unit, complained of "unbearable" leg pain, was evidently confused and unable to think clearly about either the events in question or the circumstances of his interrogation, gave facially incoherent answers, repeatedly declined to answer questions without a lawyer, and was questioned while he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus); Henry v. Kiernan, 197 F.3d 1021, 1026-30 (9th Cir. 1999) (confession held to have been actively coerced and involuntary where the interrogation was continued for an hour after the defendant stated that he wanted counsel, police knew that the Miranda protocol had been violated and deliberately continued with the interrogation, the interrogator misrepresented the consequences of the statement by informing the defendant that any statement could not be used against him for any purpose, the statements were admitted as substantive evidence of guilt and not only as impeachment, and the defendant was rambling, unresponsive, confused, frightened, sobbing, and incoherent while making the statement).

4. The Fourth Statement

With respect to the statement taken upon Petitioner's release from the hospital, Petitioner was told that his statement was being recorded and would be transcribed, and he expressly acknowledged that he had been read his constitutional rights, his family had retained an attorney to represent him, and with that in mind, he wished to make a statement. (LD 18, 1-2.) This evidence strongly indicates that Petitioner's participation was voluntary.

The session lasted for forty minutes. (Id. at 1, 37.) Petitioner began by making a long, uninterrupted narrative statement (id. 1-7); he was then questioned concerning some details of his statement and his communications with the victim and with another woman. He was then confronted with his four different versions of the cocking and shooting of the gun, and Detective Bump stated that at the hospital, Petitioner had said to a deputy the other day that Petitioner had shot the gun out of the window. Petitioner denied having said that. (Id. at 14-15.) Petitioner stated that he did not remember how many times each person cocked the gun, but he remembered that it was Bonham who had shot the gun out the window. (Id. at 15.)

Petitioner argues that his statement was involuntary because of misrepresentations of fact made by the officers. However, Detective Molsbergen testified that he did not intentionally deceive Petitioner; he had information that the decedent's car had been at Petitioner's house but no physical information to support it, and Petitioner denied that the car had been there. (RT [LD 20] 106.) At one point it was questioned whether or not the decedent had been shot in the vehicle, and Molsbergen presented that to Petitioner, who insisted the shooting occurred in the vehicle. (Id. at 107.) The detective also had recalled that Petitioner had said that he shot the gun out the window, but Molsbergen admitted that he did not personally hear that and was not sure where he got that. (Id. at 109-11.)

The record does not require or substantially support a finding of intentional misrepresentation, but in any event, the matters misrepresented were not sufficient to constitute coercion or to cause Petitioner's will to be overborne. Petitioner was not misled as to matters essential to understanding the significance of his rights or the consequences of giving a statement. Cf., Moran v. Burbine, 475 U.S. 412, 423-24 (1986).

The Court concludes that the totality of the circumstances attending Petitioner's fourth statement do not demonstrate coercive conduct or that Petitioner's will was overborne. Considering all the circumstances, it is concluded that the evidence reasonably supports a conclusion that Petitioner's fourth statement was voluntary.

5. Fifth Statement

Petitioner's fifth statement was essentially consistent with his fourth statement. Petitioner argues that it was involuntary because of misrepresentations of fact made by the officers.

In view of all the circumstances, the Court concludes that Petitioner's fifth statement made at the walk-through on December 2 was likewise voluntary. The evidence supports a reasonable conclusion that Petitioner initiated the contact, was given his rights, and waived his rights. There are no indicia or circumstances of coercion.

In summary, consideration of the totality of the circumstances pursuant to the correct legal standard results in an objectively reasonable conclusion that Petitioner's statements were not involuntary or coerced. Petitioner has not shown that the state court's decision denying his petition was contrary to, or an unreasonable application of, clearly established federal law. Further, Petitioner has not shown that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

V. Alleged Violation of Petitioner's Miranda Rights Petitioner argues that the first two statements he gave at the house were taken in violation of the protocol established in Miranda v. Arizona, 384 U.S. 436 (1966) and thus were erroneously admitted in the prosecution's case-in-chief. Further, he argues that his later statements were inadmissible because of the preceding Miranda violations. *fn5

In order to implement the Fifth Amendment privilege against self-incrimination made binding upon the states by the Fourteenth Amendment, the Supreme Court has held that statements made in the course of interrogation while a person is in custody are not admissible in the prosecution's case-in-chief in a criminal case unless the defendant is advised that 1) he has the right to remain silent, 2) anything he says can be used against him in court, 3) he has a right to counsel before questioning and to counsel's presence during interrogation, 4) if he is indigent, counsel will be appointed for him before interrogation, and 5) the government demonstrates by affirmative evidence that the defendant voluntarily and intelligently waived his privilege against self-incrimination and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 468-75 (1966); Harris v. New York, 401 U.S. 222, 226 (1971).

However, the Court in Miranda v. Arizona expressly noted the following:

General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

Miranda, 384 U.S. 436, 468.

It is undisputed that Petitioner was not given his Miranda warnings and did not waive his rights before he made the statements to Deputy Campbell and Detective Molsbergen at his home in the early morning following the shooting.

Even if the atmosphere of an interrogation is coercive, Miranda warnings are required to be given only when one who is interrogated is restricted to the extent that he is in custody. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (holding that a suspect was not in custody when he voluntarily came to the police station at an officer's request, was told he was not under arrest and was falsely informed that his fingerprints had been discovered at the scene of a theft, confessed to having committed the theft after having been questioned for five minutes in an office with the door closed, and then departed after a half-hour interrogation); Orozco v. Texas, 394 U.S. 324, 325-27 (1969) (holding that a suspect was in custody where he was interrogated by four police officers who came to his boardinghouse and questioned him in his bedroom at 4:00 a.m. at a time when he was under arrest and not free to leave).

The Supreme Court has reiterated that the test for custody is "simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. at 495). In Beheler, the defendant invited officers to his home shortly after a companion's commission of a homicide in the defendant's presence, made statements to police and consented to a search of his home that resulted in authorities' finding the murder weapon, and then voluntarily accompanied officers to the police station; he was told he was not under arrest. He was interviewed at the station for thirty minutes after having been drinking and while emotionally distraught. He made a statement about the murder without being given Miranda warnings. He then returned home, and he was arrested five days later. After receiving Miranda warnings, he made a second statement and said that he had given his earlier statements voluntarily. Because the defendant's freedom was not restricted in any way, the Court held that he was not in custody at his home or during the interview at the station, and his statements were all admissible. 463 U.S. at 1123-24. The proximity of the questioning to the crime and the clear focus on him as a suspect did not render the interrogation custodial. Id. The Court found significant the fact that the defendant himself had invited the police to his home. Id. at 1125.

More recent cases direct that custody must be determined by how a reasonable person in the suspect's situation would perceive his circumstances. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). In Berkemer, it was held that a suspected drunk driver was not in custody when a police officer, who at the outset intended to arrest him, effected a traffic stop, questioned him, administered a field sobriety test, and elicited admissions that he had been drinking and ingesting a drug. There was no custody because the officer had not informed the driver of his intent to arrest him, and thus the officer's unexpressed intention did not bear upon the issue of custody. The Court stated, "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id.

In the instant case, this Court must thus examine all the objective circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action, Stansbury v. California, 511 U.S. 318, 322-23, 325 (1994), or, whether or not a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave, Thompson v. Keohane, 516 U.S. 99, 112 (1995).

Here, Petitioner himself called 9-1-1 and summoned authorities to his residence. Officers were then engaged in a preliminary investigation and were attempting to obtain information, determine the location of the shooting, and collect evidence. The questioning of Petitioner was not accusatory or prolonged. Petitioner was allowed to remain in his own living room, to rest, and even to sleep at will while the officers were present. Further, he was permitted to take medication as he chose. Although Petitioner claimed that he was required to stay on the floor of his living room and was not allowed to move, the state court could have considered the totality of the countervailing circumstances and could have reasonably determined that Petitioner was not as restricted in movement as he later claimed.

Further, a reasonable person in Petitioner's circumstances at his house could reasonably have believed that he was not suffering constraints tantamount to a formal arrest, but rather was simply restricted from roaming at large while the extent of the scene was being determined and while evidence was being collected. Although Petitioner failed to supply any details as to any requests to use the telephone, a reasonable person in the circumstances could have understood that a temporary cessation of the numerous calls Petitioner had already made to his family and friends that night was not indicative of a formal arrest, but rather was simply an incident of an ongoing investigation. Petitioner consistently gave the appearance of someone who welcomed the presence of the law enforcement officers and desired to reveal to them not only his version of the events with the decedent, but also other evidence that he believed would establish his innocence of any crime. Although Petitioner was slightly restricted, considering all the circumstances, a reasonable person would not have believed that he was under a formal arrest or that he was suffering a restriction of his freedom of movement tantamount to a formal arrest.

Because this case arises pursuant to 28 U.S.C. § 2254 (d)(1), this Court must determine whether a state court decision that Petitioner was not in custody would be contrary to, or involve an unreasonable application of, clearly established federal law, or a decision based on an unreasonable determination of the facts before it.

The present case is similar to Yarborough v. Alvarado, 541 U.S. 652, 663-667 (2004), where the state court had concluded that an inexperienced minor's two-hour interview at a police station, where he was brought by his legal guardians, was not custodial even though his parents were not allowed to be present because he was told it would be brief, was asked if he wanted breaks, and was allowed to leave at its conclusion. The Supreme Court in Yarborough found that the state court adjudication was not objectively unreasonable, emphasizing that fairminded jurists could disagree as to how to apply the very general test of custody, and that the subjective factors of a suspect's age and experience were given undue weight by the lower federal court that had found that the state court's determination was unreasonable. 541 U.S. at 666-69.

Here, the state court's application to the pertinent circumstances of clearly established federal law concerning custody for Miranda purposes was not objectively unreasonable. Fairminded jurists could disagree how to apply the very general test of custody to the circumstances presented at Petitioner's home. Likewise, its determination was not based on an unreasonable determination of the facts in light of the evidence before it.

Petitioner argues that because Miranda warnings were deliberately withheld at the time of his first two statements, his later waivers of his Miranda rights were ipso facto invalid. Petitioner relies on Missouri v. Seibert, 542 U.S. 600 (2004), *fn6 in which a plurality found that the giving of Miranda warnings and obtaining a waiver of rights was ineffective to establish a valid waiver where the waiver was preceded by an exhaustive custodial interrogation, which was proximate in time and similar in content, and was undertaken without giving Miranda rights.

Here, as the foregoing analysis reflects, Petitioner's unwarned statements were made when Petitioner was not in custody. The present case may thus be distinguished from Seibert.

Further, although Petitioner alleged in a conclusional fashion that the officers had intentionally withheld Miranda warnings at Petitioner's home in order to elicit incriminating statements before Petitioner understood his rights, there was no evidence before the state court of deliberate withholding of Miranda warnings. The state court could reasonably have found that the reason why no warnings were given at Petitioner's house was because the questioning there was not custodial.

In any event, Seibert was decided on June 28, 2004, or twelve days after June 16, 2004, the date on which the California Supreme Court denied Petitioner's habeas petition raising the pertinent issues. *fn7 Under §2254(d)(1), "clearly established Federal law, as determined by the Supreme Court of the United States" includes only the Supreme Court's decisions as of the time of the relevant state court adjudication on the merits.

Cullen v. Pinholster, 131 S.Ct. at 1399. Here, when the state court made the pertinent decision, Seibert had not been decided and ...

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