Opinion
No. C 02-1576 VRW (PR)
November 17, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of first-degree murder with robbery-murder special circumstance; conspiracy to commit robbery; second degree robbery; and, as to murder and robbery, knowledge another principal was personally armed with a firearm. On March 20, 1998, the trial court sentenced petitioner to prison for life without the possibility of parole, with a consecutive two-year term.
On July 19, 2000, the California Court of Appeal affirmed petitioner's conviction. On November 1, 2000, the California Supreme Court denied review. And on April 2, 2001, the United States Supreme Court denied certiorari.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. In an order filed on July 10, 2002, the court found that the petition, when liberally construed, contained colorable claims under 28 U.S.C. § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show. cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
Robbery and Murder of David Lui
On November 13, 1994, Stanford graduate student David Liu died from a single gunshot wound. The .22 caliber bullet entered his back and perforated his aorta, lung, and liver. The shooting occurred in front of an apartment complex on Tanland Drive in Palo Alto. [Petitioner] was a former resident of the apartment complex.
Shortly before Liu was shot, high school student Young Hoon Kim saw two Black men standing next to his car, which was in the parking area of the apartment complex. Kim greeted the men, and one of them commented that Kim appeared to be scared. One of the men was wearing a baseball cap; the other was wearing a Raiders jacket. One was short (about 5'8" or 5'9") and chubby; the other was tall (about 6'2" or 6'3") and skinnier. Kim helped the police make a sketch of the shorter man, who he subsequently identified as Larry Paul. Evidence at trial established that [petitioner], who is Black, was 6'2" to 6'3" tall and weighed between 150 to 155 pounds.
Eighteen-year-old Zane Rogers lived on the second floor of the Tanland apartment complex. On the night of November 13, 1994, he heard scuffling outside. He looked out his window and saw Liu lying face down on the ground in front of a car. Two Black men were nearby: one was standing above the victim; the other was crouched down or kneeling. The standing man was holding a wallet and keys. He was kicking the victim. The crouching man was looking around. The standing man was about 6 feet tall, had very short hair, and was wearing a Raiders jacket. The crouching man was holding a gun and wearing a hat or a hood.
After the two men left, Rogers went outside. He saw Liu had been shot. He placed Liu on his side to let blood drain from his mouth, then ran to a nearby apartment, where Arnica and Annmarie Pasmore lived. Rogers told the Pasmores to call 9-1-1.
Robbery of Sergio Barajas
On October 22, 1994, a few weeks before the Liu robbery and homicide, Sergio Barajas was assaulted and robbed in front of a video store on University Avenue in East Palo Alto. Police found Barajas bleedine from a head wound. Barajas claimed two Black males had attacked and robbed him after he had parked his car.
Police investigated the Barajas robbery and Liu robbery/homicide as one of a series of similar robberies. During their investigation, they obtained information linking Larry Paul and [petitioner] to some of the robberies. The police discovered Larry Paul's bloody clothing in the apartment of Anita Landry.
[Petitioner's] Interviews with Police
San Mateo County Sheriff's Deputy Kenneth Jones and three other deputies went to [petitioner's] Redwood City residence at 7:30 a.m. on January 10, 1995. [Petitioner] agreed to come to the Hall of Justice. The deputies transported him to the Hall of Justice, where [petitioner] was placed in an 8-foot square interview room.
At 8:45 a.m., Deputy Jones and Sergeant Donald O'Keefe interviewed [petitioner] and recorded it on audio tape. Sergeant O'Keefe questioned [petitioner] only about the Barajas robbery. He knew that another detective would question [petitioner] about the Liu robbery/homicide later.
At the beginning of the interview, Sergeant O'Keefe read [petitioner] his Miranda rights. [Petitioner] indicated he understood those rights. Sergeant O'Keefe asked [petitioner], "And what we'd like to do is talk about a case that we're working, is that all right with you?" [Petitioner] replied, "Yes."
Sergeant O'Keefe mentioned that he knew that [petitioner] and Larry Paul had "palled around together in the past." He then specified that the police were investigating "a robbery case" that happened on October 22, 1994.
[Petitioner] indicated he had some knowledge of the Barajas robbery, but claimed he had been at his mother's house all day on October 22, 1994. He had called Larry Paul at about 7 or 8 p.m. that night. Paul said that the police were looking for them both because people were saying that the two of them were responsible for the robbery of two Mexicans. [Petitioner] subsequently spoke to Larry Paul's girlfriend, Trakeya, who said that Paul "had just robbed some Mexicans . . . for a bunch of weed."
[Petitioner] denied that he had ever robbed anyone or "done any licks" (robberies) with Larry Paul. Sergeant O'Keefe told [petitioner], "I don't think you're being truthful with us." He explained that two witnesses had seen [petitioner] with Larry Paul on the night of October 22, 1994. He told [petitioner] that he knew Paul was "a bad actor" and that he believed [petitioner] was "in the wrong place at the wrong time." He asked [petitioner] to "tell me what really happened." [Petitioner] continued to insist he did not leave his mother's nouse on the night of October 22, 1994.
Sergeant O'Keefe stated that he knew Paul was the one "who hit the Mexican," but that he also knew [petitioner] was present. He said, "[Y]ou can sit back and say, no I wasn't there, I wasn't there, and play that game. But that's not helping you any. That's not helping you clearing all this up. I mean, how are we gonna believe you, that you want to come clean, if you don't — you gotta work with us on this too. You gotta tell us how it went down." [Petitioner] replied, "I'm trying to."
Sergeant O'Keefe told [petitioner] that he did not believe the robbery was planned in advance. "I think what happened is that Larry, just decided to go do it. And there you are, you know, now you're in a bad position. So you gotta take off with him after this thing goes down. . . . I don't think you're the main guy. I really don't. But . . . we want to get information from you. . . . Cause Larry's gonna talk a different story. . . ."
Sergeant O'Keefe noted that Larry Paul had also been identified in a robbery at a Kentucky Fried Chicken. He asked [petitioner], "What's in your background?" [Petitioner] indicated that he had been in jail before and did not want to go back. Sergeant O'Keefe told [petitioner], "When something happens it's real tough to reverse it. . . . [W]e gotta cut our losses ana we gotta think, okay, what am I gonna do from here. Okay, do I really want to clean my life up, I got a small child, your girlfriend, right? ` He continued, "[Y]ou gotta think about them as well."
Sergeant O'Keefe reiterated that the police knew [petitioner] was present at the Barajas robbery and that he did not believe [petitioner] was "the main player in it." He encouraged [petitioner] to tell "your side of it" and reminded him that Paul would' do whatever he can do to help himself out."
[Petitioner] continued to deny any involvement in the Barajas robbery. Sergeant O'Keefe told him that he could see that [petitioner] was "not telling us the entire truth." He said he could see mat [petitioner] was trying to figure out whether being truthful would benefit him. He informed defendant that he could not "make you any deals or anything like that. All I can offer you is the opportunity to tell me how it went down with you. . . . All I need you to do is tell me what your part of it was, and what Larry's part of it was." Defendant said, "I told you, Larry told me that he came upon a lick, he had weed and that was it."
Sergeant O'Keefe told [petitioner], "We know you were there. . . . We know Larry Paul was there." He told [petitioner] that Larry Paul was "locked up," although in fact, Paul was not arrested until the following day. Sergeant O'Keefe asked, "What is he gonna say about [you]?" He asserted mat Paul "already has said something different." He said that Paul had told him "a little bit, enough to implicate himself and enough to implicate you." He indicated that he planned to speak further with Paul. He warned [petitioner] not to let Paul say that it was [petitioner's] idea to commit the robbery.
[Petitioner] reiterated that he only knew about the Barajas robbery from what Larry Paul had told him. Sergeant O'Keefe told defendant, "I can't make you any promises and I can't say, I'm gonna keep you out of jail. I can't do that. All I can do is offer you the opportunity to tell your side of the story. . . . [W]e wouldn't have you down here, we wouldn't have Larry in the next room."
Sergeant O'Keefe repeatedly reminded [petitioner] that a witness had identified him as being with Larry Paul right after the robbery. [Petitioner] still claimed he had been at his mother's house all day, and that "they can verify that." Sergeant O'Keefe told [petitioner], "I don't want you to put your family in a bad position" by asking them to cover for him. He told defendant that the police were trying to determine "what we're gonna do next" and that "it all depends . . . on your cooperation. It depends . . . on if you're really sincere enough to get this thing behind you and say, hey, I'm through with Larry Paul. . . . [H]e got me in trouble. . . . I got a child. . . . I got the girlfriend. . . ."
[Petitioner] still denied any involvement in the robbery. Sergeant O'Keefe provided further details about it: "Guy was getting out of his car, next thing you know, one guy comes up from behind, the other guy the front — ask him if he's got any dope. Next thing you know, whoosh, gets conked over the head." He also told defendant that Larry Paul was "saying a different story" and was "gonna try to save himself."
[Petitioner] insisted he was telling the truth and offered to take a lie detector test. Sergeant O'Keefe reiterated that a witness had identified [petitioner] as being with Larry Paul the night of the robbery at the apartment where Paul had left his bloody clothing. Sergeant O'Keefe reminded [petitioner] that [petitioner] had agreed to come in for the interview in order to "clear things up' and put the incident behind him. He asked [petitioner], "What were you referring to?" [Petitioner] replied, "The incident that happened." Sergeant O'Keefe asked, "[W]hy would you think you were in trouble for that?" [Petitioner] again explained that Paul had told him the police were looking for them both because "two Mexicans got robbed.
At that point, there was a 25-minute break in the interview. When it resumed, Sergeant O'Keefe stated, "[W]e've been off tape, we've been out of the room and everything and — and you mentioned to [Deputy Jones] here that you want to tell us what really happened." [Petitioner] replied, "Yeah." Sergeant O'Keefe continued, "Is that correct? Okay. Did we make you any threats or promises or anything, through this whole thing? We haven't threatened or promised you anything?" [Petitioner] replied, "No."
[Petitioner] then told the officers about his involvement in a robbery on Woodland Avenue in East Palo Alto. He explained that he and Larry Paul had been standing outside of their friend Anita's house when a car stopped in front of them. Paul approached the car, and the two men in the car indicated they wanted drugs. Paul went into the house and obtained some soap that had been chopped up to resemble narcotics. He gave it to the men in the car and the men gave him money. As Paul walked away, one of the men got out of the car and followed him, saying, "come here, come here, this ain't real." Paul turned around and hit the man with his fist, causing the man to fall onto the car and then onto the ground, where he bled and convulsed. Paul took the victim's wallet, and then he and defendant ran into Anita's house, where Paul changed his clothes.
Sergeant O'Keefe told [petitioner] that the details defendant had provided were consistent with a police report of the incident, but that they were investigating a different robbery, which had occurred on University Avenue and involved a Mexican victim who was hit with a pipe or shotgun and robbed of his wallet as he prepared to make a phone call. Defendant continued to deny any involvement in the Barajas robbery and reiterated that he had heard about it from Larry Paul.
Sergeant O'Keefe told [petitioner], "I think that you and Larry were involved in a couple of these, okay? And I'm not, what I'm not trying to do is, we're not trying to send you up the river. Okay, we're not trying to do that. Okay. We just need to clarify what is going on. I can't make you, all I can do, I could tell you right now that everything you told us is going to go in a report. We're going to say that you were cooperative and that, you know, you tried to help us out here."
Sergeant O'Keefe indicated that he wanted information about yet another roobery: "[T]here's one with a couple girls and a guy, their car broke down, okay, the same timeframe, a guy comes up, okay, and he takes what they think is a sawed-off shotgun out of underneath his jacket, okay. They rob him and . . . the guy with the gun waxed the guy." [Petitioner] stated, "That's all new. I don't know anything about it." He asserted that "if I really knew about it, I'd tell you
Sergeant O'Keefe told [petitioner] about information he had obtained from Trakeya. According to Trakeya, Larry Paul came over to her place after robbing Barajas and told her that he and [petitioner] had "licked this Mexican.' Sergeant O'Keefe also indicated that another witness had identified [petitioner] as being with Paul on the night of that incident. [Petitioner] still denied being involved.
The interview ended at 11:15 a.m. [Petitioner] remained in the interview room while Deputy Jones went out to a nearby delicatessen get some food for himself, Sergeant O'Keefe, and [petitioner].
Palo Alto Detective Michael Yore arrived at the Hall of Justice at some point during or after the interview. He had a fractured ankle and was using a cane to walk. He was carrying two large investigation binders, which he placed on the table in the second interview room.
Detective Yore spoke with Sergeant O'Keefe and Deputy Jones, who told him that [petitioner] had been read his Miranda rights, had agreed to talk, and had made some admissions to involvement in some robberies. Detective Yore asked Deputy Jones if he could introduce himself to [petitioner] while Deputy Jones went out to the delicatessen. [Petitioner] was brought in to the second interview room.
[Petitioner's] conversation with Detective Jones was not tape-recorded. At the beginning of the interview, Detective Yore informed [petitioner] that he was investigating a homicide. He tried to "make it very clear to [petitioner] that . . . this was not a continuing interview where he was to answer questions [but rather] . . . a completely different interview about a completely different crime. He said mat [petitioner] would have an opportunity to "discuss what really happened when Deputy Jones returned.
Detective Yore told [petitioner] that he "had put together a task force that had been following him [and Paul] for quite some time." He informed [petitioner] that he had learned facts about [petitioner's] "current movements and lifestyle and such," through the task force's surveillance. He said he knew that [petitioner] had not associated with Paul during the previous 30 days, and that a man named Vaytron Beverly was "out to get' [petitioner].
Detective Yore showed [petitioner] some of the materials in his investigation binders, including a "wanted poster, which included the sketch that Young Kim helped prepare after the Liu robbery/homicide. The poster also included descriptions of both suspects. Detective Yore stated that he believed [petitioner] was the second suspect and that Paul was the first suspect. He told him that the poster was going to be put on a billboard in the East Palo Alto area.
Detective Yore told [petitioner] that he had just spent the last three hours talking to Paul. He implied that Paul had confessed and had implicated [petitioner], stating "that it would not be unlike Larry Paul, when arrested, to blame the second person, rather than take any of the responsibility himself."
Detective Yore told [petitioner] several times throughout the 15-minute conversation "that I wanted to talk to him but I did not want him to talk back to me about anything until . . . the deputy got back When [petitioner] indicated that he was willing to talk, Detective Yore left the interview room and located Deputy Jones. They moved [petitioner] back into the first interview room so his interview could be tape-recorded.
The next interview began at about 2:20 p.m. and lasted until just before 3:00 p.m. Detective Yore began by asking [petitioner] to confirm that he had been read his Miranda rights, that he had waived his Miranda rights, that he had been offered the opportunity to make a phone call but declined to do so, and that he had not been made any promises. [Petitioner] confirmed each of those facts.
Detective Yore then asked [petitioner] to tell him what he knew about "a homicide that occurred in Palo Alto, the Tanland Apartments, on November thirteenth." [Petitioner] stated, "About a week after Halloween, um, there was a murder that I was involved in, but didn't . . . do nothing. There was a Chinese man that was shot by . . . Larry." Defendant continued: "I didn't know he was going to be shot. It, it didn't happen the way it was supposed to." He explained, "I just thought he's just gonna beat him up and just go run through his pockets like he did all the other times."
Detective Yore asked [petitioner] to confirm that he had previously admitted that "Larry had conducted three separate robberies with you present where he'd done the same thing. He'd hit somebody and taken their property." [Petitioner] said that was true. He then confirmed that he had been present, but not involved in, the Barajas robbery, the robbery of the three people with the broken-down car, and the robbery of the two men in the car in Woodland. [Petitioner] stated that Paul had not given [petitioner] any of the proceeds from any of the robberies.
[Petitioner] then provided information about the Liu robbery/homicide. He met Larry Paul about 4:30 p.m. They went to Paul's grandmother's house, where Paul obtained his gun. Paul told [petitioner] that he wanted to do a robbery. They walked over to the Tanland Apartment complex, where they interacted with Young Kim. [Petitioner] explained why Paul didn't want to rob Kim: "He has his own choice of people who he does it to."
[Petitioner] explained what he thought was going to happen: "My understanding was, we's just supposed to pull a lick. Not hurt no one." He went on: "Not hurt anyone in no kind of way. Um . . . he . . . robbed somebody, the Chinese man. He beat him. While I was standing there watching, and then he just, shot him. Shot the uh, Chinese man. For no reason after he's already beat up. After he really had beat him up."
[Petitioner] described what he was wearing at the time: a Miami hat, and a gray and maroon derby coat, similar to a Raiders jacket. Paul was wearing all black clothing. After the shooting, he asked Paul why he had shot Liu. Paul replied that he "just did it." Paul did not give [petitioner] any money from the robbery, or any of the items he took from Liu, which included a set of keys, a car alarm, and a wallet.
[Petitioner] indicated that he felt sorry that Liu had died. He expressed his wish that "it would of happened differently." He did not know whether or not Paul felt sorry for what he had done. He had not spoken with Paul since the homicide.
After the second taped interview concluded, at about 3:00 p.m., [petitioner] remained in the interview room. His girlfriend, Yetone Carothers, and their daughter, Reynecia, were permitted to go inside to see him. [Petitioner's] conversation with Carothers was surreptitiously tape-recorded.
After his conversation with Carothers, [petitioner] was interviewed again, beginning at 4:45 p.m., by Sergeant O'Keefe and Deputy Jones. This interview was also tape-recorded. The officers first asked [petitioner] if he remembered the rights they had read to him earlier. [Petitioner] confirmed that he did.
[Petitioner] then provided details about the Barajas robbery. He and Larry Paul had been at Anita Landry's house. Paul picked up a pipe and said, "I'm gonna try to find me a lick." They began to walk around the neighborhood, ending up at a video store on University Avenue. Paul had the pipe underneath his jacket. Barajas drove up in a pick-up truck, parked, and approached the telephone. Paul stated, "This is the lick." [Petitioner] looked around "to make sure it was okay" and then said, "it's cool." Paul walked up behind the victim and hit him in the head with the pipe several times. When the victim fell down, Paul looked through the pick-up truck and went through the victim's pockets. Paul and [petitioner] then returned to Landry's house, where Paul changed his clothes.
Next, [petitioner] provided information about the robbery of the three people with the broken-down car. He and Larry Paul had been standing in front of A-1 Liquors on University Avenue. Paul, who was armed with a gun, believed the victims "probably had money." He walked up to them and told them to "break themselves." He then began "pistol whipping" the male. Paul went through the male's pockets and threatened the females with his gun.
The officers asked [petitioner] what he was thinking when Paul committed the robberies and whether he had ever told Paul to stop. [Petitioner] explained: "I can't stop him. Can't say nothing to him. . . . He gets a rush off. Violence is him. . . ." [Petitioner] described an incident where Paul had beat up a "dope fiend that had ten dollars."
At the end of this interview, the officers asked [petitioner] whether "everything you've told us so far today, throughout the day, has been the truth.' [Petitioner] replied, "Yeah its the truth." He also confirmed that the officers had not "made any threats or promises." The interview ended at 5:25 p.m.
After the final interview, [petitioner] was taken to jail for booking. He was eventually charged, by information, with murder (count 1, [Cal Penal Code] § 187), conspiracy to commit robbery (count 2, §§ 182, subd. (a)(1), 211, 212.5, subd. (c)), and robbery (count 3, §§ 211, 212.5, subd. (b)). As to the murder charge, the information contained the special circumstance allegation of murder during the commission of a robbery (§ 190.2, subd. (a)(17)). As to the conpiracy charge, the information alleged two overt acts: going to 1091 Tanland Drive on November 13, 1994, and going to 1939 University Avenue on October 22, 1994. As to both the murder and the robbery charges, the information alleged that a principal was armed with a firearm (§ 12022, subd. (b)).
[Petitioner] subsequently pled no contest to charges of assault with a deadly weapon and second degree robbery of Barajas. As part of the plea bargain, charges related to the robbery on University were dropped.
Before trial, [petitioner] moved to suppress his confession.
At the motion to suppress his confession, [petitioner] testified that he had attended school through the 11th grade ana had been an average student. He had been arrested and convicted of narcotics offenses two times before being interviewed by the police on January 10, 1995.
[Petitioner] testified that while he sat in the interview room before the first interview, Deputy Jones "peeked in a few times." About five or ten minutes before the interview began, Deputy Jones stuck his head into the room and said, "Larry Paul."
[Petitioner] testified about his interaction with Detective Yore in between the first and second interviews. Detective Yore told him that Paul "had told him everything, that he was implicating me as the — the shooter, and that I should try and help myself.' Detective Yore said that "he wanted to give [Paul] the death penalty, that he didn't want him on the streets no more.' Detective Yore said that "he felt Larry was the shooter and I was just there, you know, just at the wrong place at the wrong time." Detective Yore told him that "the person that was not the shooter would not end up doing that much time, something around 2 years. He would get something like accessory or something." Detective Yore said that if [petitioner] did not talk to him, [petitioner] would "be the heavy, end up getting the death penalty and the charge[s] get stacked against me." [Petitioner] therefore decided to "[s]ay that I was just there to get the less time, to not be the heavy, avoid the death penalty."
According to [petitioner], Detective Yore said that "he knew about the past run-ins we had, he knew about Vaytron trying to shoot me and hold me up in front of the liquor store. He said that he wanted to handcuff me to a billboard and [let] Vaytron have his way with me and shoot me." [Petitioner] believed Detective Yore, and he felt nervous and scared.
Deputy Jones testified that he visited [petitioner] in jail the day after his arrest. [Petitioner] stated that he has confessed to the Liu robbery/murder because Detective Yore had threatened him: "if he didn't confess to the crimes [Detective Yore] would handcuff [petitioner] . . . to the billboard and let Vaytron Beverly shoot him."
[Petitioner] testified that Detective Yore provided him with some of the details about the Liu robbery/homicide. Detective Yore told him that the perpetrators had "[a] run-in with a Chinese Man . . . five minutes prior to when the incident had happened." Detective Yore also stated that the incident had occurred "around the pool area, in the carport."
On cross-examination, [petitioner] admitted that he had lied to Deputy Jones and Sergeant O'Keefe when he denied involvement in the Barajas robbery. He admitted that he had pled no contest to the robbery of Barajas. He also admitted that he told his girlfriend that Detective Yore said Vaytron Beverly was in custody.
[Petitioner] admitted that neither Deputy Jones nor Sergeant O'Keefe had pulled out a gun, threatened him, or raised their voice to him. They had given him food and drinks and allowed him to use the restroom. He had had "some sleep" the night before the interviews. Nothing about the interview room made him feel pressured in any way.
Professor Richard Ofshe, a sociology professor, testified at the motion to suppress [petitioner's] confession. Professor Ofshe had reviewed all of [petitioner's] recorded interviews, the recorded conversation between [petitioner] and Carothers, a transcript of Larry Paul's interrogation, the preliminary hearing transcript, the police reports, and the testimony of the other witnesses at the motion to suppress. He had also interviewed [petitioner] two times. He asserted that his testimony about police interrogation tactics would assist the trier of fact in determining the voluntariness and credibility of defendant's confession.
Professor Ofshe explained that police use different techniques during the interrogations. The various techniques are generally aimed at making the suspect believe that the police have overwhelming evidence of his or her guilt, thereby creating the perception that his situation is hopeless because he is going to be arrested, tried, and convicted.
According to Professor Ofshe, two such techniques were used in this case: the prisoner's dilemma and maximization/minimization tactics. The prisoner's dilemma occurs when two suspects are each told that the other suspect has confessed or will confess. Each suspect is told that the other suspect is going to "take the less significant role, the one that results .in less punishment." Each suspect is told to "confess if [the other suspect] really aid it." Professor Ofshe opined that Sergeant O'Keefe employed this tactic when he told defendant that Larry Paul was " `going to do whatever he can to help himself.' "
The maximization/minimization tactic is designed to give the suspect the expectation that he or she will be punished less severely if he or she agrees to a version of events put forth by the interrogator. Professor Ofshe opined that Sergeant O'Keefe employed this tactic when he told [petitioner] that he believed [petitioner] was simply present when Larry Paul committed the Barajas robbery.
Professor Ofshe ultimately expressed his opinion that [petitioner's] decision to confess was "responsive' to the tactics employed by the officers.
The trial court denied [petitioner's] motion to suppress his confession.
At trial, the [defense] focused on the reliability of [petitioner's] confession. Professor Ofshe testified, as he did at the motion to suppress, about various police tactics designed to elicit a confession from a suspect, including the prisoner's dilemma and maximization/minimization techniques. He did not offer an opinion about whether defendant's confession was in fact reliable.
[Petitioner's] mother, Alicia Agront, testified that [petitioner] and Yetone Carothers were watching videos at her house all day on November 13, 1994, the day of the Liu robbery/homicide. An investigator with the Santa Clara County Public Defender's Office testified that she made several unsuccessful attempts to contact Yetone Carothers and to subpoena her for trial.
[Petitioner] was convicted, as charged, of first degree murder (§ 187), conspiracy to commit robbery (§ 182, subd. (a)(1)), and second degree robbery (§§ 211, 212.5, subd. (b)). The jury found true the special circumstances allegation that [petitioner] committed the murder during a robbery (§ 190.2, subd. (a)(17)), and the allegation that a principal was armed with a firearm (§ 12022, subd. (d)) during the commission of the murder and the robbery. The trial court imposed a prison term of life without the possibility of parole for the murder, with a consecutive two-year term for the arming enhancement associated with that count. It stayed the terms for the remaining counts and enhancements pursuant to section 654.People v. Pereles, No HO 18342, slip op at 2-16 (Cal Ct App. July 19, 2000) (footnotes omitted) (Resp't Ex B).
DISCUSSION
A. Standard of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor. 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, 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." Id at 413.
"[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. Id at 411. Rather, that application must also be "objectively unreasonable." Id at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the relevant state-court decision. Id at 412; Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir 2003). While circuit law maybe "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises three colorable claims for relief under § 2254: (1) petitioner's confession was coerced and should have been suppressed; (2) the trial court violated petitioner's due process rights by excluding petitioner's statements made to Yetone Carothers during a break in his interrogation; and (3) petitioner's trial counsel was ineffective: (a) for failing to seek suppression of petitioner's confession on the ground that his Miranda waiver was based on an affirmative misrepresentation of the scope of the ensuing interrogation; and (b) for failing to raise applicable grounds for admission of petitioner's exculpatory statements.
1. Admission of Involuntary Confession
Petitioner claims that his confession made during the police interrogations on January 10, 1995 was involuntary and, accordingly, its admission was a violation of his due process rights. Petitioner specifically contends that his confession was rendered involuntary because it was the product of (a) implied promises of leniency, (b) the deception about Larry Paul being in custody, and (c) Detective Yore's threat to handcuff petitioner to a billboard and allow Vaytron Beverly to shoot him. Petitioner first made these arguments before the superior court in a motion to suppress. The superior court denied petitioner's motion to suppress his confession, and the court of appeals affirmed this denial.
It is clearly established under the Fourteenth Amendment that an involuntary confession in a state criminal case is inadmissible for any purpose, including impeachment. See Blackburn v. Alabama. 361 U.S. 199, 207 (1960); Henry v. Kernan, 197 F.3d 1021, 1028 (9th Cir 1999). The voluntariness of a confession is evaluated by reviewing both the police conduct in extracting the statements and the effect of that conduct on the suspect. See Miller v. Fenton, 474 U.S. 104, 116 (1985); Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir 1999). Absent police misconduct causally related to the confession, there is no basis for concluding that a confession was involuntary in violation of the Fourteenth Amendment. See Colorado v. Connelly, 479 U.S. 157, 167 (1986); Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir 1989).
To determine the voluntariness of a confession the court must consider the effect that the totality of the circumstances had upon the will of the defendant. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne."United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)).
The California Court of Appeal rejected petitioner's claim that his confession was involuntary. It explained:
[H]ere there were no implied or express promises of leniency. Sergeant `Keefe did not impliedly or expressly convey any benefit in exchange for [petitioner's] confession. * * * Here, Sergeant O'Keefe did nothing more than exhort [petitioner] to tell the truth when he asserted that [petitioner] was "not helping [himself] any" by denying involvement in the Barajas robbery, or when he asserted that [petitioner] should "cut [his] losses." When Sergeant O'Keefe stated that [petitioner] did not "want to go to jail," he was not promising [petitioner] mat he could avoid jail by confessing; he was asserting that it appeared [petitioner] was trying to avoid jail by denying any involvement. By telling [petitioner] that his cooperation would guide the police in their next actions, Sergeant O'Keefe was not implying that [petitioner's] cooperation would lead to any benefit; he was explaining that [petitioner's] cooperation would affect how the police proceeded with their investigation. Sergeant O'Keefe's statement that the police were not trying to send [petitioner] "up the river" came after he stated that he believed [petitioner] was involved in "a couple" of robberies with Paul; it implied only that the police were trying to determine [petitioner's] exact level of culpability rather than charge him with crimes he did not commit. Finally, Sergeant O'Keefe's reference to noting [petitioner's] cooperation and including the information obtained from defendant in a report did not constitute a promise of leniency, since the statement was preceded by the limitation "all I can do. . . ." The statement was unaccompanied by any implied or express promise of a benefit. In fact, Sergeant O'Keefe expressly told [petitioner] that he could not "make you any deals or anything like that," mat he could not "make you any promises/and that he could not "say, I'm gonna keep you out of jail.'People v. Pereles, No H018342, slip op at 21-22 (Cal Ct App. July 19, 2000). The court also found that the police's deception about Larry Paul being in custody, when considered in the totality of the circumstances, did not render petitioner's confession involuntary. Id at 22. Finally, the court upheld the finding that Detective Yore did not threaten to handcuff petitioner to a billboard and let Vaytron Beverly shoot him. Id. The court explained:
[Petitioner] notes that Detective Yore admitted bringing up Vayton Beverly's name. However, Detective Yore testified that he brought up Vaytron Beverly's name, and the fact that Beverly had a grudge against [petitioner], in order to show [petitioner] the knowledge they had gained after conducting investigation and surveillance.
Nothing in the record indicates Detective Yore lacked credibility. [Petitioner] notes that Detective Yore initiated the second taped interview by stating, "Let's, lets just go back to having you telling me in your own words." He contrasts this evidence with Detective Yore's testimony denying that he questioned defendant during the non-taped interview. We do not believe this casts doubt on Detective Yore's credibility. As the People point out, Detective Yore's comment is ambiguous, and suggests that Detective Yore had previously done the talking, rather than [petitioner] — which would be consistent with Detective Yore's testimony.
Lastly, [petitioner] also notes that at the beginning of the second taped interview, Detective Yore asked if any promises had been made to [petitioner], but failed to ask if any threats had been made. However, [petitioner] later confirmed that no threats or promises had been made by the police "at all."
Id. at 22-23.
The California Court of Appeal's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The court's determination that there were no implied or explicit promises of leniency or any threats made to petitioner was reasonable. Petitioner himself stated at the end of the interrogations that no promises had been made to him during the course of the interrogations. Clerk's Tr at 1265. It also was reasonable for the California Court of Appeal to conclude that the following statements by the investigating officers did not rise to the level that they overcame petitioner's free will: that petitioner was "not helping [himself] any" by denying involvement in the Barajas robbery; that petitioner should "cut [his] losses"; that petitioner did not want to put his family in a bad position; or that the officers were going to note petitioner's cooperation and include the information obtained from petitioner in a report. Cf United States v. Okafor, 285 F.3d 842, 846-47 (9th Cir 2002) (customs agent's statements to defendant that he would be subject to 10-20 years in prison and it would be to his benefit to cooperate with authorities, as well as customs agent's statement that he would let the government know if defendant cooperated, did not render subsequent confession involuntary); Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997) (encouraging a suspect to tell the truth is not coercion).
The state appellate court's determination that no threats were made to petitioner by Detective Yore also was reasonable. A state court's subsidiary factual conclusions in determining whether a confession is involuntary are entitled to a presumption of correctness. See Miller v. Fenton, 474 U.S. 104, 117 (1985); Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir 1996) (deferring to state appellate court's conclusion that challenged statement did not constitute a threat or promise). Petitioner does not overcome this presumption. See 28 U.S.C. § 2254(e)(1) (petitioner must present clear and convincing evidence to overcome presumption of correctness).
Finally, the state appellate court's determination that the officers' deception as to the custody of Larry Paul did not render petitioner's confession involuntary was a reasonable application of Supreme Court precedent. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (upholding the validity of a confession produced by the falsehood that defendant's accomplice had been apprehended and confessed).
In sum, the California Court of Appeal reasonably determined that the officers did not obtain petitioner's confession by physical or psychological coercion or by improper inducement to the extent that petitioner's will was overborne, which means that its ruling must stand. See Early v. Packer, 123 S Ct 362, 365 (2002). Petitioner is not entitled to federal habeas relief on his involuntary confession claim.
2. Exclusion of Petitioner's Exculpatory Statements
Petitioner claims that the trial court violated his due process rights ½ by excluding statements he made during a taped conversation with Yetone Carothers. The factual basis for this claim was set out by the California Court of Appeal:
In between the second and third taped interviews with the police, [petitioner] had a conversation with his girlfriend, Yetone Carothers, in the interview room. The conversation was surreptitiously tape-recorded.
[Petitioner] told Carothers that the police were "trying to say I did three robberies and a homicide and a murder, with [Larry Paul]. . . ." He asserted, "I'm gonna tell them I mean I was with none of them all them times I was at home, I was at my mom's house." He explained why he was going to admit being present at one robbery: "After a while they told me if I was just to come out and tell the truth, that [Larry Paul was] gonna get time, but they said (inaudible). . . . They said they got two witnesses."
Carothers opined that the witnesses were lying and "trying to get [Larry Paul] out or trouble." [Petitioner] agreed, but said that the police did not believe him: "I told them I didn't know nothin' about it. I don't know nothing about it. And then . . . it just got to the point that (inaudible)." He continued: "I said, fuck it. I said yeah, I was with him when he did it. Saying I did something when I didn't do it." Carothers asked [petitioner], "why are you doing this?" [Petitioner] responded, "There was nothing I could do."
[Petitioner] told Carothers that the police did not believe him because Larry Paul was telling them something different. He stated that the police were "talking about 25 to life" and the death penalty. He told Carothers that Detective Yore knew all about him, about the homicide on Woodland, and about the robbery in which Paul hit the victim with a pipe. He said that he had already admitted being with Paul during the homicide, explaining, "there was nothing I could do." He stated that the police wanted him to say that Paul did all the robberies before Paul said that [petitioner] did them.
Carothers encouraged [petitioner] to "[k]eep on saying no and fight it." [Petitioner] responded that he couldn't fight it, because witnesses were identifying him. Carothers commented, "You're making it seem like you know something though." [Petitioner] told her, "I had to make something up. . . . If not. . . . I 11 be the one doing 25 to life. They said I still might get 2 years or something
[Petitioner] told Carothers that he had "copped to one" robbery, telling the police that he was with Larry Paul. Carothers responded, "Oh, that's true. [¶] . . . [¶] But you were just with him." [Petitioner] then stated, "But all of them, but all three of them and the homicide I was there, I mean, taking part of the action." Carothers asked, "You weren't there in the homicide?" [Petitioner] replied, "But I said, I told them I was, right, that I had to something."
[Petitioner] explained why he admitted being present: "They would have caught on that I was lying. Then they would have just gave up and waited `til [Larry Paul] came home. They would have asked him the same questions they asked me. And [Paul] would say: `Yeah [petitioner] is the one. [Petitioner] was the one who did all the robberies.' "He continued: "I would have been the one doing all the time, to life instead of him."
When Carothers expressed her belief that [petitioner] had not done anything wrong, [petitioner] told her: "I mean, I didn't do nothin.' I was there all the times, I was there."
Carothers asked [petitioner] if the police were going to book him. [Petitioner] explained that at first, the police indicated he would be able to leave after coming down to the Hall of Justice, but that when he was read his rights, he knew he was "going to jail." He asserted that the police told him mat all he had to do was "just plea with assessment [sic]. . . ."
Carothers asked [petitioner] if he had told the police about "the problem you have with Vaytron [Beverly] . . .?" [Petitioner] replied, "No, they already know about all that. Earlier they were saying they were gonna put me on University and Bayshore, cuff me up to the billboard and let Vaytron (inaudible) and Vaytron (inaudible) let Vaytron loose on me." Carothers asked, "And let him do what?" Defendant explained, "Whatever shoot me or whatever. They know he wants to shoot me."
[Petitioner] and Carothers discussed the Liu robbery/homicide. She asked him about the "other Chinese man" who had "said hi to you." [Petitioner] explained that the police had asked why Larry Paul did not rob that man. Carothers asked, "And you were making all this up?" [Petitioner] said, "I had to "
Before trial, [petitioner] sought admission of his conversation with Carothers for purposes of the motion to suppress his confession. He also sought to have the conversation admitted as part of the defense case, and for use by Professor Ofshe. The trial court declined to admit the conversation for any of those purposes.People v. Pereles, No H018342, slip op at 25-27 (Cal Ct App. July 19, 2000).
Petitioner argued in the state superior court and in the court of appeal that his conversation with Carothers was admissible under the state of mind exception to the hearsay rule under California Evidence Code § 1250, and as a contemporaneous statement that explained petitioner's conduct during the interrogations under California Evidence Code § 1241. The state courts rejected petitioner's claims. Petitioner additionally argued before the court of appeal that exclusion of his statements by the trial court violated his rights to due process and to present a defense. The court of appeal rejected the claims.
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir 1991). But the Due Process Clause does not guarantee the right to introduce all relevant evidence. SeeMontana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. Id.
The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."Id at 43 (quoting Patterson v. New York. 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." Id. One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense.DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), andWashington v. Texas, 388 U.S. 14, 18-19(1967)).
When deciding whether the exclusion of evidence violates the due process right to a fair trial or the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or, merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia v Cambra, 281 F.3d 1032, 1037 (9th Cir 2002); Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000). The court must also give due weight to the state interests underlying the state evidentiary rules on which the exclusion was based. Miller v. Stagner, 757 F.2d 988, 995 (9th Cir 1985).
The California Court of Appeal rejected petitioner's due process and Sixth Amendment claims:
[Petitioner] has not demonstrated that application of the rules of evidence "deprived him of crucial evidence bearing persuasive assurances of trustworthiness." Moreover, [petitioner] was able to present evidence relevant to the question whether his confession was voluntary and to the question whether it was true or false. At the motion to suppress, he testified about Detective Yore's purported threat. At the motion to suppress and at trial, defendant presented an expert on police interrogations tactics. Thus, the trial court's exclusion of [petitioner's] conversation with Carothers "did not constitute a refusal to allow [petitioner] to present a defense, but merely rejected certain evidence concerning the defense."People v. Pereles. No H018342, slip op at 35 (Cal Ct App. July 19, 2000) (internal citations omitted).
Although petitioner's statements would have been a major part of petitioner's defense, and the trier of fact would have been capable of evaluating the statements, the California Court of Appeal's rejection of petitioner's claims was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Petitioner's statements to Carothers were not reliable. Petitioner made the statements at a time when he knew he was under suspicion, and he made the statements in an environment in which he reasonably could not expect privacy, an interrogation room. Because of the statements' unreliability the probative value of the statements is also minimal. Additionally, as noted by the state court of appeal, petitioner was allowed to present alternative evidence to show the purported relevancy of the conversation. Cf Drayden, 232 F.3d at 711 (no violation of due process where excluded statements not reliable and other relevant evidence was admitted).
At minimum, the state court of appeal's determination was reasonable, which means that it must stand. See Early v. Packer, 123 S Ct 362, 366 (2002). Petitioner is not entitled to federal habeas relief on his exclusion of evidence claim.
3. Ineffective Assistance of Counsel
Petitioner claims that he received ineffective assistance of counsel because trial counsel: (a) failed to seek suppression of petitioner's confession on the ground that his Miranda waiver was based on an affirmative misrepresentation as to the scope of the interrogation; and (b) failed to seek admission of petitioner's conversation with Yetone Carothers under the excited-utterance exception to the hearsay rule, or as evidence of petitioner's complete statements over the course of an interrogation.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v Washington, 466 U.S. 668, 686 (1984). `The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two elements. First, he must establish that counsel's performance was deficient, i e, that it fell below an "objective standard of reasonableness" under "prevailing professional norms." Id at 687-88. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id at 687. Judicial scrutiny of counsel's performance must be highly deferential, and a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id at 689. Second, petitioner must establish that he was prejudiced by counsel's deficient performance, i e, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability means a probability sufficient to undermine confidence in the outcome. Id.
a. Scope of Miranda Waiver
Petitioner claims that trial counsel was ineffective for failing to seek suppression of petitioner's confession on the ground that hisMiranda waiver was based on an affirmative misrepresentation by law enforcement officials as to the scope of the interrogation. Petitioner notes that the police officers who interrogated him told him they were "investigating a robbery," but subsequently questioned him about both the Barajas robbery and the Liu robbery/homicide.
The California Court of Appeal rejected petitioner's claim, on the ground that he did not prove either prong of the Strickland test. The court specifically determined that "trial counsel could reasonably conclude that it would be fruitless to argue for suppression of [petitioner's] statement based on a Miranda violation;" and that "it was not reasonably probable that trial counsel could have convinced the trial court that [petitioner] was affirmatively misled as to the scope of the interrogation." People v Pereles, No H018342, slip op at 25 (Cal Ct App. July 19, 2000). The court explained:
[Petitioner] notes that in [Colorado v Spring, 479 U.S. 564, 576, fn.8 (1987)], the United States Supreme Court left open the question whether "affirmative misrepresentation by law enforcement officials as to the scope of the interrogation" renders a Miranda waiver invalid. [Petitioner] contends that trial counsel had no valid reason for failing to make such an argument in this case.
In [Colorado v. Spring. 479 U.S. 5641, the court held that an officer's silence as to the subject matter 01 an interrogation does not equate to trickery sufficient to invalidate a defendant s Miranda waiver. The court explained: "The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. [Citations.] The Firth Amendment's guarantee is both simpler ana more fundamental: A defendant may not be compelled to be a witness against himself in any respect." [Id.] at 574.1 Thus, "a valid waiver does not require that an individual be informed of all information `useful' in making his decision or all information that `might . . . affec[t] his decision to confess.' [Citation.] `[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or standby his rights.'" [Id at 576.] The court found no evidence that the [petitioner] "misunderstood the consequences of speaking freely to law enforcement officials," and therefore concluded mat the [petitioner's] Miranda waiver had been knowingly and intelligently made. [Id at 575.]
Here, [petitioner] was informed that the interrogation concerned "a robbery case. The police did not specify which robbery case; thus, [petitioner] was not misled into believing that the questions would only concern the Barajas robbery, rather than the Liu robbery/homicide, or any other robbery. Nor were they required to specify which robbery in order to help defendent decide whether to waive his right to remain silent. [Colorado v. Spring, 479 US at 576.]People v. Pereles. No H018342, slip op at 24-25 (Cal Ct App. July 19, 2000). The California Court of Appeal reasonably determined that it would be fruitless for trial counsel to argue for suppression of petitioner's statements based on a Miranda violation. As noted by the Supreme Court in Colorado v. Spring, it is undecided under federal jurisprudence whether an affirmative misrepresentation as to the scope of an interrogation would invalidate a Miranda waiver. 479 US at 576. Furthermore, the court of appeal reasonably concluded that petitioner was not affirmatively mislead as to the scope of his Miranda waiver. Although petitioner was told that he would be questioned only, about "a robbery case," this was enough. The police were not required to disclose the scope of the interrogation in order for his Miranda waiver to be valid. See Colorado v. Spring, 479 US at 576.
Under these circumstances, the court of appeal reasonably concluded that it was not reasonably probable that the trial court would have granted counsel's motion to suppress. See Wilson v. Henry. 185 F.3d 986, 990 (9th Cir 1990) (to establish prejudice, petitioner must show that had his counsel filed the motion to suppress, it is reasonable that the trial court would have granted it as meritorious, and had the motion been granted, it is reasonable that there would have been an outcome more favorable to him). This determination is supported by the fact that there is no evidence that petitioner was mislead as to the nature of his Miranda rights. Petitioner was instructed that he had a right to speak with an attorney, that he had the right to remain silent and the consequences of waiving these rights. Petitioner also reiterated that he understood and waived these rights before each of the taped interrogations.
For these reasons, petitioner is not entitled to federal habeas relief on this claim of ineffective assistance of counsel. See 28 U.S.C. § 2254(d); Williams v. Taylor. 529 U.S. 362, 409 (2000).
b. Statements Made to Yetone Carothers
As noted earlier, petitioner's counsel unsuccessfully sought to introduce evidence of petitioner's conversation with Carothers under the hearsay exceptions covering statements proving state of mind and contemporaneous statements explaining conduct. Petitioner claims counsel was ineffective because he also should have sought to introduce petitioner's conversation with Carothers under the excited utterance exception to the hearsay rule, Cal Evid Code § 1240, and as evidence of petitioner's complete statements over the course of an interrogation, Cal Evid Code § 356.
The California Court of Appeal rejected petitioner's claim on the ground that petitioner could not show prejudice because it was not reasonably probable that the conversation would have been admitted under the cited sections of the California Evidence Code. People v Pereles. No H018342, slip op at 32-35 (Cal Ct App. July 19, 2000). This court is bound by the California Court of Appeal's interpretation of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Accordingly, under Strickland, petitioner's claim fails because petitioner has not shown that he was prejudiced by trial counsel's performance.
Petitioner also claims that counsel's performance was inadequate because counsel failed to seek admittance of a redacted version of the evidence of the conversation. The California Court of Appeal rejected this claim as well, stating: "Here, even assuming a reasonably competent attorney would have prepared a redacted version of the conversation for the trial court's review, it is not reasonably probable that the trial court would have admitted it." People v. Pereles. No H018342, slip op at 32 (Cal Ct App. July 19, 2000). The court noted that even a redacted version of the conversation would have failed to satisfy the requirements for admission under the California Evidence Code. Id. This court again is bound by the state appellate court's determination of state law, and, again, petitioner's claim fails because he cannot show prejudice under Strickland. See Lewis v. Jeffers. 497 US at 780.
In sum, petitioner is not entitled to federal habeas relief on any of his ineffective assitance of counsel claims. The state court's rejection of the claim was not an objectively unreasonable application ofStrickland, Williams. 529 US at 409.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of respondent.