FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. She challenges a 2008 judgment of conviction entered against her in the Sacramento Superior Court on charges of first degree murder with the special circumstance that the murder was committed during the course of a robbery; second degree robbery; attempted use of a forged access card; and use on four occasions of a forged access card. She seeks relief on the grounds that: (1) her Fourteenth Amendment right to due process was violated by the admission into evidence of her statements to police; (2) the admission into evidence of statements by her co-defendant's brother violated her Sixth Amendment right to confrontation of the witnesses against her; (3) her sentence constitutes cruel and unusual punishment; (4) her trial and appellate counsel rendered ineffective assistance; and (5) the cumulative effect of errors at her trial violated her right to due process.
Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Factual Background*fn1
Defendant Candice Lewis and co-defendant Eric Ramsey lured a 62-year-old victim to an area where they robbed him of his money and car and killed him by either strangling him or running him over with his car. They then used or attempted to use his credit card at various locations. Tried in front of dual juries, defendant and Ramsey were found guilty of first degree murder, second degree robbery, attempted use of a forged access card, and use on four occasions of a forged access card.*fn2 Defendant's jury found a felony-murder special circumstance to be true.
Sentenced to prison for 25 years to life, defendant appeals.*fn3 She contends the court should have excluded her statements during an initial interview with police as well as her statements thereafter, that is, statements made during a recorded conversation with Ramsey at the police station, their joint interview with the police, and their interview with the police at the crime scene. She claims that in the initial interview with the police, she did not voluntarily waive her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. She also claims that her statements were involuntary. We reject her claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2006, Detective Michael Lange interviewed defendant at the police station. The interview was recorded and shows the following: Defendant, who is young and pregnant, waits in a room for about an hour before the interview begins.*fn4 About 40 minutes into her wait, she is upset and knocks on the door. She wants to see a nurse, complaining that the baby is kicking. She explains the baby kicks when she feels stress. The detective lets her leave the room to walk around. She returns a short time later and says she is better. Defendant asks if the detective has spoken with her mother.
The detective responds that he had spoken with defendant's mother, that she knew that defendant was at the police station, and that she went to church but planned to return. Defendant did not ask to see or talk to her mother and responded, "Okay," to the detective's explanation. The detective then returns to start the interview. He states, "I have to read you your rights since you're down here at the police station." "I'm gonna read those rights to you and then we can -- and move on and talk." Defendant [sic] then reads defendant her rights pursuant to Miranda. Defendant responds "Un-huh" or nods affirmatively after each right. More than an hour into the interview, during which defendant is caught in one lie after another and confesses to the crimes, she asks if she is going to be able to talk to her mother. The detective responds that defendant's mother plans to call when she is finished at church. Defendant responds, "Oh, she's still in church?" The detective states that defendant's mother planned to call and he needed to leave to check his messages. Defendant states, "Okay." The detective returned and informed defendant that he and defendant's mother had traded messages. The detective then brings up an allusion defendant had made earlier that it was Ramsey's plan to rob the victim. Defendant states that while Ramsey mentioned such a plan, he never told her the details, and she assumed it was just talk. The detective then tells her that Ramsey told another officer she was the mastermind. The detective then tells defendant to think about that while he leaves the room to respond to a call from defendant's mother. He steps into the hall. When he returns, he tells defendant that her mother is concerned about defendant and the baby. The officer reiterates that Ramsey is "putting most of this on you." Defendant denies it was her idea. At the end of the interview, the detective has defendant write a letter of apology to the victim's family. Defendant asks if her mother was coming to the police station. The detective responds that defendant's mother will not be coming immediately but "know[s] what's going on." Defendant responds, "Okay." Apparently, while defendant was being interviewed by Detective Lange, Ramsey was interviewed by Detective Pat Higgins. After their individual interviews, defendant and Ramsey were interviewed together. Later, they sat together in the interview room with the tape running unbeknownst to them. Subsequently, they led the detectives to the crime scene where the interviews continued. Defendant was then transported to juvenile hall.
Prior to trial, defendant filed an in limine motion "to not allow [defendant]' s statement to law enforcement and all fruits of the statement."
After a hearing, the court found defendant understood her Miranda rights and waived them. The court therefore denied defendant's motion to suppress the statements.
II. Procedural Background
After the California Court of Appeal affirmed her judgment of conviction, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 5. Therein, she claimed that the trial court erred in denying her motion to suppress her statements to police. Id. On November 19, 2009, that petition was summarily denied. Resp.'s Lodg. Doc. 6.
On February 18, 2010, petitioner, proceeding in pro per, filed a petition for writ of habeas corpus in the Sacramento County Superior Court (Case No. 10F01060), claiming that the trial court improperly denied her motion to suppress her statements to police; and that the combination of her trial counsel's ineffective assistance, "cumulative error," and "prejudicial error by the court" violated her right to due process.*fn5 Resp.'s Lodg. Doc. 7. By order dated April 6, 2010, the Superior Court denied that petition on the grounds that petitioner's claim regarding her statements to police had been raised and rejected on appeal, and her claim of ineffective assistance of counsel was unsupported by any specific factual allegations. Resp.'s Lodg. Doc. 8.
On February 3, 2011, petitioner, now proceeding through counsel, filed another petition for writ of habeas corpus in the Sacramento County Superior Court (Case No. 11F00682). Resp.'s Lodg. Doc. 9. Therein, she claimed that: (1) the admission into evidence of statements by her co-defendant's brother violated her Sixth Amendment right to confrontation of the witnesses against her; (2) her sentence constitutes cruel and unusual punishment, in violation of the Eighth Amendment; (3) her trial and appellate counsel rendered ineffective assistance; and (4) the cumulative effect of the errors at her trial violated her Fourteenth Amendment right to due process. Id. By order dated March 7, 2011, the Superior Court denied that petition on the grounds that it was an impermissible successive petition, that it was untimely, that it sought to raise issues which could and should have been raised on appeal, and that the claims contained therein lacked merit in any event. Resp.'s Lodg. Doc. 10.
Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same four claims that she raised in her second habeas petition filed in the Superior Court. Dckt. 14-1 at 2-52. By order dated May 12, 2011, the Court of Appeal summarily denied that petition "on the merits," without issuing an order to show cause. Dckt. 14-2. On May 18, 2011, petitioner filed a petition for review in the California Supreme Court, raising the same four claims. Dckt. 14-3. The Supreme Court ordered respondent to file an answer to the petition, in which he should address:
Whether petitioner established a prima facie case for relief, such that this court should grant the petition for review, and transfer the matter to the Court of Appeal with instructions to issue an order to show cause.
Resp.'s Lodg. Doc. 17, at 1. After respondent filed his answer, the California Supreme Court summarily denied the petition for review. Id. at 2.
Petitioner commenced the instant action by filing a petition for writ of habeas corpus in this court on February 14, 2011.
III. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn6
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as '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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn7
A. Admissibility of Petitioner's Statements to Police
In petitioner's first ground for relief, she claims that her confession to police was involuntary.*fn8 Dckt. 2-1 at 8 (Pet.). She notes that at the time she was interrogated she was 16 years old and five months pregnant. Id. She argues that "no juvenile at that age has a grasp of the significance of his or her actions," and states that she herself did not fully understand her predicament. Id. at 10. She notes that during the course of the police interview she appeared to be in pain, especially prior to the interrogation when she was left alone in the room. Id. at 8. Petitioner argues that "her pregnancy is a matter that should have been given far more consideration than has been afforded to it by the courts thus far." Id. at 11. She notes that, at one point, she had to take a walk in the hallway in order to alleviate her discomfort. Id. at 8. She points out that during the interview she asked for a nurse "but was offered no medical attention." Id. at 11. Petitioner also notes that she told the interrogating officer she usually experienced pain when she was "stressed out." Id. She argues that "pregnant women have intense hormonal fluctuations that may distort their interpretation of their situation." Id. at 12.
Petitioner also notes that she asked the detective several times whether he had talked to her mother, and at one point asked whether she was going to talk to her mother. Id. at 8-9. She argues that the officer's responses to these questions were "designed to allay Ms. Lewis' concerns and preclude her from directly asking to speak to her mother." Id. at 9. Petitioner also argues that the officer failed to tell her mother that she was being interrogated for murder and that, if her mother had been told this, she "likely would have immediately sought the assistance of an attorney." Id. at 13.
Petitioner states that she had "virtually" no experience dealing with law enforcement or the criminal justice system, that she was "desperate and confused," and that she "did not evince any of the character traits of a mastermind or otherwise highly developed intellectual or emotional abilities." Id. at 10. Petitioner also notes that in the secretly recorded conversation between herself and co-defendant Ramsey after their joint interrogation, it is clear that she did not understand the gravity of her situation. Id. She states that the detective did not inform her of the seriousness of the consequences she faced, nor did he tell her that her interrogation involved a murder. Instead, he led her to believe that he was concerned about her truancy and the use of stolen credit cards. Id. at 10-11. Petitioner notes that it was not until the end of the interview that the detective informed her she had been arrested because of the murder. Petitioner argues that "the officer's decision not to immediately inform Ms. Lewis of the reason for her arrest also permitted him to elicit contradictory responses that were later used to impeach her at trial." Id. at 11. She asserts that "this sort of underhanded technique may be understandable when dealing with an adult, but not a child." Id.
Petitioner states that she and co-defendant Ramsey both believed that Ramsey was solely responsible for the murder. Id. She explains that her answers to the police interrogator were designed to "mitigate the harm that could befall Mr. Ramsey." Id. She further explains that she was a troubled child who had run away from home, experimented with drugs, and suffered from depression. Id. at 12. She states that the victim "had taken advantage of her vulnerability to obtain sexual favors from her." Id.
Finally, petitioner argues that her initial coerced police interrogation "directly precipitated the subsequent statements that she made when she was left alone in the room with Mr. Ramsey and when both defendants were taken by police to the crime scene." Id. She states that all of her statements to police should be suppressed as "fruit of the poisonous tree." Id.
1. Decision of the California Court of Appeal
The California Court of Appeal rejected all of these arguments, reasoning as follows:
Defendant contends the "[t]he totality of circumstances demonstrate that [she] did not voluntarily waive her Miranda rights" and that she did not voluntarily confess to police. She bases these contentions on similar arguments: she invoked her privilege against self-incrimination by asking to speak with her mother; she was young, pregnant, in pain, and naive; the detective's introductory comments "softened" the impact of the Miranda advisements; and the detective's lie that Ramsey had called her the mastermind of the crimes suggested "coercion." As we explain, we agree with the trial court the statements were properly admitted.
The determination of whether a Miranda waiver and a confession by a juvenile defendant was voluntary, knowing, and intelligent is based on the totality of circumstances. (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [61 L.Ed.2d 197, 212]; see People v. Neal (2003) 31 Cal.4th 63, 79, 84.) Here, the totality of circumstances demonstrates a voluntary, knowing, and intelligent waiver of Miranda and confession by defendant.
In the initial interrogation of defendant by Detective Lange, the detective admonished defendant of her Miranda rights. After reciting each right, he asked defendant if she understood the right, and she acknowledged either by words or by nodding that she did. There was nothing in the detective's introductory comments that would trick defendant into believing the reading of the rights was a mere technicality, that she was not required to respond, or that she was not allowed to exercise her rights.
Although defendant did not expressly waive her rights, her subsequent statements demonstrate an implied waiver. (People v. Cruz (2008) 44 Cal.4th 636, 667-668.) At the interview, defendant appeared intelligent and her answers were clear and responsive. Her youth and pregnancy did not impair her judgment. She did not request to see or speak to her mother. Instead, she asked whether she was going to talk to her mother at some point. This did not amount to an invocation of her rights. (See People v. Hector (2000) 83 Cal.App.4th 228, 237 [minor's request to speak to her parents is an indication the minor wishes to invoke her Miranda right].)
Defendant responded voluntarily to the detective's questions and confessed on her own. Nothing in the interview suggests the detective used any "physical or psychological pressure" to obtain defendant's statements; she "was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit" nor were there any improper promises. (People v. Whitson (1998) 17 Cal.4th 229, 248-249.) While the officer did lie to defendant with the mastermind comment, the use of deception by law enforcement is permissible when it is not likely to produce an untrue statement. (People v. Farnam (2002) 28 Cal.4th 107, 182-183.) There was nothing in the statement that would have induced defendant to confess absent her own free will.
Indeed, the portrait that emerged of defendant from the interrogation was of a criminally-sophisticated, intelligent 16-year-old who understood what the detective was telling her, who decided on her own she wanted to waive her Miranda rights and confess after being caught in one lie after another.
The trial court did not err in concluding defendant knowingly, intelligently, and voluntarily waived her rights under Miranda and confessed to police. The trial court therefore ruled correctly that defendant's statements during the initial interview and in subsequent interviews were admissible.
2. Applicable Legal Standards
The Fourteenth Amendment to the United States Constitution demands that confessions be made voluntarily. See Lego v. Twomey, 404 U.S. 477, 483-85 (1972). In determining whether a confession is voluntary, "the question is 'whether the defendant's will was overborne at the time he confessed.'" Haynes v. Washington, 373 U.S. 503, 513 (1963); see also Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997) (the test is "whether . . . the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne."). "The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en banc) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)); see also Pollard v Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002) ("Under the Fourteenth Amendment, a confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will."); Henry v. Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999). In the end, a reviewing court must ask: "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." Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir. 2011) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225--26 (1973)).
"There is no 'talismanic definition of 'voluntariness" that is 'mechanically applicable.'" Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003), overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Schneckloth, 412 U.S. at 224). Rather, voluntariness is to be determined in light of the totality of the circumstances. See Miller v. Fenton, 474 U.S. 104, 112 (1985). This includes consideration of both the characteristics of the petitioner and the details of the interrogation. Schneckloth, 412 U.S. at 226 (The court must examine "the factual circumstances surrounding the confession, assess [ ] the psychological impact on the accused, and evaluate [ ] the legal significance of how the accused reacted."). "The factors to be considered include the degree of police coercion; the length, location and continuity of the interrogation; and the defendant's maturity, education, physical condition, mental health, and age." Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011). See also United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003) ("Courts . . . often consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep."); Henry, 197 F.3d at 1026 ("[v]oluntariness depends on such factors as the surrounding circumstances and the combined effect of the entire course of the officers' conduct upon the defendant"). The totality-of-the-circumstances test to determine voluntariness applies "even where interrogation of juveniles is involved," because "[t]he totality approach ... mandates ... inquiry into all the circumstances surrounding the interrogation," such as "the juvenile's age, experience, education, background, and intelligence . . . ." Fare v. Michael C., 442 U.S. 707, 725 (1979).
"A confession is involuntary if coerced either by physical intimidation or psychological pressure." Haswood, 350 F.3d at 1027; United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) ("subtle psychological coercion suffices . . . at times more effectively 'to overbear a rational intellect and a free will' "). Officials cannot extract a confession "by any sort of threats or violence, nor . . . by any direct or implied promises, however slight, nor by the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). False promises or threats may render a confession invalid. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (confession found to be coerced by officers' false statements that state financial aid for defendant's infant children would be cut off, and her children taken from her, if she did not cooperate); Rogers v. Richmond, 365 U.S. 534, 541-45 (1961) (defendant's confession was coerced when it was obtained in response to a police threat to take defendant's wife into custody); Spano, 360 U.S. 315, 323 (1959) (confession found to be coerced where police instructed a friend of the accused to falsely state that petitioner's telephone call had gotten him into trouble, that his job was in jeopardy and that loss of his job would be disastrous to his three children, his wife and his unborn child). However, "misrepresentations made by law enforcement in obtaining a statement, while reprehensible, do not necessarily constitute coercive conduct." Pollard, 290 F.3d at 1034. Additionally, encouraging a suspect to tell the truth is not coercion. Amaya-Ruiz, 121 F.3d at 494. Nor is it coercive to recite potential penalties or sentences, including the potential penalties for lying to the interviewer. Haswood, 350 F.3d at 1029.
Finally, "[w]arnings and a waiver are not dispositive of a confession's voluntariness." Doody, 548 F.3d at 860. Compliance with Miranda does not conclusively establish the voluntariness of a subsequent confession. Berkemer v. McCarty, 468 U.S. 420, 433 n. 20 (1984). "Moreover, when analyzing the voluntariness of a confession following Miranda warnings, the delivered warnings, even if sufficient to satisfy Miranda"s prophylactic rule, must be ...