Opinion
Case No. 03CV2361-BEN (POR).
February 27, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR A WRIT OF HABEAS CORPUS
I. INTRODUCTION.
A jury convicted CHARLES EDWARD STORM ("Petitioner" or "Storm") of murdering his wife (Gloria Andrade) with a knife. Storm admitted to a prior conviction, and was sentenced to 56 years-to-life. His conviction has been affirmed by the California Supreme Court. See, People v. Storm, 28 Cal. 4th 1007 (2002),cert. denied, 123 S.Ct. 899 (2003).
According to the trial evidence, Gloria died from multiple stab wounds to the throat, chest, and back.
Proceeding pro se, Storm has now filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his murder conviction on federal constitutional grounds. The Honorable Magistrate Judge Louise S. Porter issued a thorough and thoughtful Report and Recommendation ("Report"), recommending the Petition be denied. Storm objects to Judge Porter's findings. The Court has made a de novo review of the Report. See, 28U.S.C. § 636(b). For the reasons that follow, the Court adopts the Report in full. Accordingly, Storm is not entitled to habeas relief, and his Petition is DENIED.
Under 28 U.S.C. § 2254, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
II. STORM'S CLAIM.
Storm's claim is multi-faceted. Thus, some background facts are helpful. During the investigation of his wife's murder, Storm waived his rights under Miranda v. Arizona ("Miranda"), 384 U.S. 436 (1966) and voluntarily submitted to a polygraph test at the police station. During the test, Storm denied killing his wife. The polygraph operator informed Storm that the test results indicated a "greater than ninety-nine percent" probability that Storm was lying. The polygraph operator invited Storm to "chat" and "try [to] figure out what happened." Storm then said he wished to consult a lawyer before speaking further. Rather than cease questioning (as Miranda requires), the polygraph operator encouraged Storm to speak. Storm admitted killing his wife, claiming assisted suicide.No physical evidence linked Storm to the homicide, and given Storm's references to counsel, the police doubted Storm's statements were sufficient for arresting him. Storm thus was not arrested and left the police station. Storm was not placed under surveillance and was free to move about.
Two days later, detectives came to Storm's home. Storm invited them in. After assuring him that he would not then be arrested, the detectives interviewed Storm. The detectives did not give Storm fresh Miranda warnings because the setting was noncustodial. Storm again admitted killing his wife, providing more details of his assisted-suicide story. The detectives left as promised.
Storm was arrested the next morning. At trial, Storm's statements during the station interview were excluded, but his statements during the home interview were admitted. Specifically, the jury heard an audio recording of the home interview, in which Storm explained in detail how he helped his wife (Gloria) commit suicide.
Subsequent evidence suggested that the order of Gloria's wounds was different than Storm had indicated in his home interview. The evidence also suggested that on the day Gloria was killed she was offered a bookkeeping job. She was scheduled to start four days later, and was very happy about starting work.
Storm took the stand and changed his story. He testified he killed Gloria because, during an argument, she disparaged his sexual performance. Storm was convicted of first degree murder.
Storm then unsuccessfully challenged his conviction, arguing in state courts, as he does here, that the admission of the home interview was prejudicial error. Specifically, he argues the police violated Edwards v. Arizona ("Edwards"), 451 U.S. 477 (1981) when they continued to question him after he requested counsel. Under Edwards, once a suspect invokes his right to counsel further interrogation must cease until counsel is afforded, or until the suspect initiates further communication.See, Id. at 484-485 ("A suspect, having invoked [his right to counsel] is not subject to further interrogation by the police until counsel has been made available to him or her, unless the suspect personally `initiates further communication, exchanges, or conversations' with authorities."). This is commonly referred to as the Edwards "no-recontact" rule. Subsequent courts have held or assumed that the Edwards "no-recontact" rule applies only when a suspect is in continuous custody, or there was no break in custody. See also, McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) ("If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary. . . .") (Emphasis added). Thus, courts have found, that the no-recontact rule under "Edwards . . . does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinterrogated. U.S. v. Hines, 963 F.2d 255, 257 (9th Cir. 1992). This commonly referred to as the "break in custody exception."
Storm, however, argues the "break in custody exception" to theEdwards no-recontact rule is inapplicable here because the police ignored his request for counsel, his release was a pretext or ruse to avoid an earlier Miranda violation, and the police failed to give new Miranda warnings before questioning him at home. Storm also separately argues his statements were improperly admitted because they were tainted by, or the illegal fruits of, the original Miranda violation at the police station. This is so, Storm contends, because he had already "let the cat out of the bag" by confessing at the police station and thus had no incentive to remain silent. For the reasons that follow, and set forth in Judge Porter's Report, Storm's claim lacks merit. Thus, Storm is not entitled habeas relief.
III. STORM IS NOT ENTITLED TO HABEAS RELIEF.
A. Standard Of Review.
The Court's role in reviewing Judge Porter's Report is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id; see also, U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.").
Further, "[b]ecause [Storm's] Petition was filed after April 24, 1996, [the Court's] review is circumscribed by" the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").Earp v. Stokes, 423 F.3d 1024, 1031 (9th Cir. 2005).
"AEDPA imposes a highly deferential standard for evaluating state-court rulings." Boyd v. Newland, 393 F.3d 1008, 1012 (9th Cir. 2004) (Citations omitted). "The highly deferential standard for evaluating state-court rulings reflects a respect for state courts as part of a co-equal judiciary and as competent interpreters of federal law." Turney v. Pugh, 400 F.3d 1197, 1200 (9th Cir. 2005).
Under the AEDPA, the Court "may not disturb a state court's determination unless it `was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States' . . ."Id., quoting 28 U.S.C. § 2254(d) (1). See also, Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000).
Under the AEDPA, habeas relief may also be granted if the state court's ruling "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)(2). The claims presented here do not implicate this portion of the statute as they are "questions of law and mixed questions of law and fact. . . ." Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003). Moreover, "[t]o obtain federal habeas relief, [a petitioner] must first demonstrate that his case satisfies the condition set by § 2254(d)(1)." Williams v. Taylor, 529 U.S. 362, 403 (2000). Lastly, Storm does not provide any clear and contrary evidence showing that the state court's determination of facts was unreasonable. See, Miller-El v. Dretke, 125 S.Ct. 2317, 2325 (2005) (For purposes of Section 2254(d)(2), "we presume the [state] court's factual findings to be sound unless [petitioner] rebuts the `presumption of correctness by clear and convincing evidence.").
"[A] decision is `contrary to' clearly established federal law as determined by the Supreme Court if `the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Id., quoting, Williams v. Taylor, 529 U.S. at 405-06.
"A state court's decision can involve an `unreasonable application' of Federal law if it either: 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable."Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). In that regard, the state court's decision must be "something more than merely incorrect." Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1035 (9th Cir. 2005); see also, Lockyer v. Andrade, 538 U.S. 63, 75(2003). In other words, "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 v. Taylor, 529 U.S. at 411; see also, Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000) ("It is not enough for [the Court] to determine in [its] independent judgment that the state court decision was incorrect or erroneous — instead the important question is whether the state court's decision was `objectively unreasonable.'").
"`Clearly established Federal law'" is the "governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.'" Lockyer v. Andrade, 538 U.S. 63, 123 (2003). "The statutory language plainly restricts the source of clearly established law to the Supreme Court's jurisprudence." Lambert v. Blodgett, 393 F.3d at 974. Therefore, "[a] state court decision may not be overturned on habeas review, for example, because of a conflict with Ninth Circuit-based law. . . ." Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997); see also, Kane v. Garcia Espitia, 126 S.Ct. 407 (2005). By the same token, the state court's decision "does not even require awareness of [the Supreme Court's] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also, Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1035 (9th Cir. 2005).
"While Supreme Court precedent is the only authority that is controlling under AEDPA, [the Court may] look to Ninth Circuit case law as `persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (Citations and internal quotations omitted). See also, O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) (Holding that "to the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue."). Ninth Circuit precedent "may also help [the Court] determine what law is `clearly established.'" Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1034 (9th Cir. 2005).
"When applying this standard, [the Court] review[s] the last reasoned decision by a state court." Plumlee v. Sue del Papa, 426 F.3d 1095, 1102 (9th Cir. 2005); see also, Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004). That decision here was the California Supreme Court's published opinion. See, People v. Storm ("Storm"), 28 Cal. 4th 1007 (2002), cert. denied, 123 S.Ct. 899 (2003).
B. Discussion/Analysis.
1. California Supreme Court's Decision.
The California Supreme Court first agreed with the lower courts and found that Storm's statements during first police station interview were inadmissible. Storm, 24 Cal.4th at 1022 n. 5. The court also accepted Storm's concession that the second interview, which took place in his home, was non-custodial.
The court then addressed Edwards:
The United States Supreme Court has . . . described Edwards as providing that, once a suspect in custody invokes his Miranda right to counsel, his or her subsequent statements to police are presumed involuntary and inadmissible if obtained pursuant to an "encounter (initiated by the police) in the absence of counsel (assuming there has been no break in custody)."
While the high court has never directly addressed whether a break in custody vitiates the Edwards no-recontact rule, California cases uniformly have held or assumed that the rule barring police recontact after a Miranda request for counsel applies only during continuous custody. [California state court citations and footnote citing state and federal cases omitted] The instant Court of Appeal concurred in these decisions. It held that "(w)hen there is a break in custody of a sufficient length such that the suspect has time to consult with counsel or other advisors, the police may on their own initiative re-contact the suspect. This is so since the break in custody dissipates the inherently coercive effect of custody that is the basis for Miranda. (Citations)."
We agree. The bright-line rule of Edwards was "designed to protect an accused in police custody from being badgered by police officers" in an effort to wear the suspect down and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance. "If (the defendant, during custodial interrogation, invokes his or her Miranda right to counsel, but) the police (then) release the defendant, and if the defendant has a reasonable opportunity to contact his attorney," there appears no reason under Edwards to forbid subsequent police contact.
Once released, the suspect is no longer under the inherently compelling pressures of continuous custody where there is a reasonable possibility of wearing the suspect down by badgering police tactics to the point the suspect would waive the previously invoked right to counsel. A break in custody between the first and second interrogations also provides the suspect the opportunity to speak with an attorney, family member or any person the suspect cares to consult without police constraints. We therefore adopt the premise that a . . . break in custody where the defendant has a reasonable opportunity to contact his attorney [while free of custodial pressures] dissolves an Edwards . . . claim.Storm, 24 Cal.4th at 1023-24 (Citations and some quotations omitted; emphasis in original). The court emphasized the "narrow nature" of its ruling: "We conclude only that Edwards is not violated when the police recontact a suspect after a break in custody which gives the suspect reasonable time and opportunity, while free from coercive custodial pressures, to consult with counsel if he or she wishes to do so." Id. at 1024-25 (Emphasis in original).
The California Supreme Court then concluded that there was noEdwards violation because "the two-day midweek hiatus at issue . . . was amply sufficient to dissipate custodial pressures and permit [Storm] to consult counsel." Id. at 1025.
The state court also found that no facts supported that the break in custody here was merely a ruse or a pretext:
At the outset, there is no indication the police had an advance plan to disregard [Storm's] Miranda rights. On the contrary, [the lead detective's] undisputed testimony indicates he "belatedly realiz(ed) that (the station house interview) was tainted". . . by the failure to heed [Storm's] requests for counsel. [The detective] halted the interview in mid progress, consulted the district attorney's office, and concluded the interview should end. Because the police had no other evidence linking [Storm] to the homicide, [the detective] saw no legal basis to detain [Storm] further and concluded he had no choice but to release [Storm]. Thus, the record contains no hint that the police deliberately elicited an invalid confession in hopes it would help them obtain a valid confession after a break in custody, or that they released [Storm] for the purpose of manipulating the break-in-custody exception to their advantage.
But despite their mistakes at the station house, the police remained obligated to press their investigation of an unsolved homicide. So long as there was a true break in custody, affording [Storm] reasonable time and opportunity to consult counsel while free of custodial influences, the police thereafter had the right to recontact him without undue delay. Hence, no "bad faith" or "pretext" arises simply because Detective Rowe had formed such an intent at the time of [Storm's] release. Nor was [Storm] misled into a false sense of security. He knew he was the prime suspect, and the police said nothing to suggest he was permanently immune from further questioning. Indeed, before leaving the station house, [Storm] acknowledged [the detective's] warning that the matter was not concluded.
Thereafter, [Storm] remained at liberty, without interference by the police, for two midweek days, which gave him ample time and opportunity to rest, regroup, and obtain legal or other advice free of custodial pressure. He had the incentive to seek such help, and he had already indicated a desire for counsel's assistance. The authorities, in turn, took the risk that such a consultation would occur, and might effectively prevent them from obtaining defendant's further cooperation.
Detectives subsequently conducted a consensual interview at [Storm's] apartment, at which the incriminating statements here at issue were elicited. Because, as [Storm] himself concedes, this was a noncustodial interview, Miranda procedures did not apply, and the interviewers thus committed no ruse or pretext by failing to obtain a new Miranda waiver before they questioned him. We therefore reject any suggestion that the admissions elicited at his home were obtained by deceitful or improper means.Id. at 1026.
The California Supreme Court also rejected Storm's argument that "a break-in-custody exception to Edwards cannot apply unless the suspect received new Miranda warnings before responding to police questioning following the custodial lapse."Id. at 1027. The court reasoned "Miranda and Edwards apply only to custodial interrogation, and [Storm] concede[d] that the [second home interview] was noncustodial." Id. at 1027. Similarly, the court found that by withholding Miranda warnings, the detectives did not "mislead" Storm into believing that his home interview statements will not be used against him.Id. at 1027 fn. 9 ("[T]he trial court expressly found there was no `affirmative misleading', because the police simply said they would leave; they made no claims that `everything [would] be okay legally speaking.' We agree.").
Lastly, the California Supreme Court rejected Storm's contention that his statements at the second interview were inadmissible as "tainted fruits" of the originalMiranda/Edwards violation at the first interview ("the cat out of the bag theory"). The state court found that the United States Supreme Court in Oregon v. Elstad ("Elstad), 470 U.S. 298 (1985) had rejected the "tainted fruits" doctrine or the "cat out of the bag theory" in the Fifth Amendment context. Storm, 28 Cal.4th at 1031, citing Elstad, 470 U.S. at 308 ("[N]either the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness' testimony" and "[w]e believe that this reasoning applies with equal force when the alleged `fruit' of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused's own voluntary testimony. . . ."). The state court also found that, under Elstad, "a later statement obtained in compliance withMiranda, and without coercive methods of interrogation, is not to be presumed involuntary simply because the suspect has already incriminated himself." Id. at 1030, citing Elstad, 470 U.S. at 311 ("[T]his Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.").
The state court also recognized that Elstad specifically limited its holding to a Miranda violation, resulting from a mere failure to warn, and did not decide whether the same rule would apply where the "invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation." Id.,quoting, Elstad, 470 U.S. at 313, n. 3. The court, however, noted that though Storm's request for counsel was ignored, Elstad had also distinguished the situation where "deliberately coercive or improper tactics" were used in obtaining the first confession, and Elstad would have rejected a presumption of compulsion absent such tactics.Storm, 28 Cal.4th at 1030-31, quoting Elstad, 470 U.S. at 314. The state court then found that "despite any Edwards violation [during the first interview], the statements [Storm] made . . . were otherwise voluntary." Id. at 1035. Accordingly, the California Supreme Court upheld Storm's conviction.
2. The California Supreme Court's Decision Was Neither Contrary to, Nor an Unreasonable Application of, Supreme Court Law.
As noted, Storm is entitled to habeas relief if and only if the California Supreme Court's adjudication of his claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See, 28 U.S.C. § 2254(d). As Judge Porter found, no such showing has been made.
a. "Contrary to" clearly established federal law.
As noted above, "a [state court's] decision is `contrary to' clearly established federal law as determined by the Supreme Court if `the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Wade v. Terhune, 202 F.3d at 1195, quoting, Williams v. Taylor, 529 U.S. at 405-06. Judge Porter found that "there [was] no Supreme Court cases which [were] materially indistinguishable from [Storm's] situation", and that the "state court's ruling was not `diametrically different' than any governing law set forth in any Supreme Court cases, but was merely an application of that precedent in a context in which it had never been applied." Moreover, Judge Porter found that Storm's contentions were mainly "disagreement[s] with the extent to which [Supreme Court precedent] should be applied to his claims, and is not properly considered as an argument that the state court's adjudication of his claim was `contrary to' clearly established federal law." Judge Porter thus concluded Storm's claims are more properly considered under the "unreasonable application" prong of Section 2254 than the "contrary to" prong. The Court agrees.
Judge Porter's conclusions are correct under governing law, and Storm offers nothing in his Objections to warrant a different conclusion. See, Nunes v. Mueller, 350 F.3d 1045, 1053 (9th Cir. 2003) ("[Petitioner] is correct that the state court ruling was not `contrary to' clearly established Supreme Court law. It followed a California Supreme Court decision which sets forth the same requirements as [U.S. Supreme Court precedent] for demonstrating an ineffective assistance claim in the context of plea bargaining. And the United States Supreme Court has not examined a case whose facts provide sufficient comparability for us to conclude that the result reached by the state court was at odds with established Supreme Court case law."); see also, Baker v. City of Blaine, 221 F.3d 1108, 1111 (9th Cir. 2000) ("The state court identified the correct legal rule announced by the Supreme Court and applied it to the facts of [petitioner's] case. Thus the `unreasonable application of' prong applies."). Thus, the Court adopts Judge Porter's conclusion that the state court's ruling was not "contrary to" Supreme Court precedent, and that Storm's claims should be considered under the unreasonable application clause of Section 2254. The Court now turns to that analysis.
b. Unreasonable Application of Clearly Established Supreme Court law.
A state court's decision involves an unreasonable application of Supreme Court law, "if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413 (Quotation omitted). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the governing legal principle] incorrectly." Woodford v. Visciotti, 537 U.S. at 24-25. "Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. at 123; see also, Wiggins v. Smith, 539 U.S. 510 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). Under this standard, Storm is not entitled to habeas relief.
As Judge Porter found, Storm essentially complains that the California Supreme Court applied Elstad unreasonably by failing to apply the full "tainted fruits" doctrine or the "cat out of the bag theory" to his case. (See, Petition Points Authorities at 16-17, 23.). At the time of the state court's decision, it was clearly established that:
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), [the Court] established a number of prophylactic rights designed to counteract the "inherently compelling pressures" of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 86 S.Ct., at 1628.
In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), [the Court] established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation "until counsel has been made available to him," 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 — which means, [the Court] ha[s] most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990).McNeil v. Wisconsin, 501 U.S. at 177.
Four years after Edwards was decided, the Court in Elstad was called upon to "decide whether an initial failure of law enforcement officers to administer the warnings required byMiranda . . . without more, `taints' subsequent admissions made after a suspect has been fully advised of and has waived hisMiranda rights." Elstad, 470 U.S. at 300 (Citation omitted). The Court considered the argument that once a suspect has "let the cat out of the bag" by confessing, any further statements made by the suspect are necessarily a product of the prior confession, and held that:
It is settled law that "a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is `sufficiently an act of free will to purge the primary taint.'" Taylor v. Alabama, 457 U.S. 687, 690, 120 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982) (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).
But as we explained in Quarles and Tucker, a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the "fruits" doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. Dunaway v. New York, 442 U.S. 200, 216-217, 99 S.Ct. 2248, 2258-2259, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S., at 600-602, 95 S.Ct., at 2260-2261. . . . [¶] The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.
* * *
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.Elstad, 470 U.S. at 306-09.
Thus, while Elstad recognized that a Miranda violation may taint a later confession, it rejected a presumption of a taint flowing from an earlier failure to warn a suspect of his rights. In the end, the Court in Elstad announced that it was "not establishing a rigid rule," and identified the relevant inquiry as "whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the totality of the circumstances, including surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Id. at 318.
Recently, the Supreme Court has decided two cases, which demonstrate that the state court's ruling was not objectively unreasonable. See, U.S. v. Patane ("Patane"), 542 U.S. 630 (2004); Missouri v. Seibert, 542 U.S. 600 (2004).
In Patane, the defendant was interrogated without Miranda warnings. During the interrogation, the detective asked the defendant about a gun. Id. at 635. The defendant expressed his unwillingness to talk about the gun, but the detective persisted.Id. Eventually, the defendant revealed where the gun was. The detectives seized the gun, and defendant was convicted for being a convicted felon in possession of a firearm. Id.
The Supreme Court concluded that while the defendant's statements were inadmissible and unlawfully obtained, the resulting physical evidence (the gun) was admissible. Id. at 640. Most relevant here, Patane reconfirmed the Elstad's holding. Citing Elstad, the Supreme Court held:
More generally, the Miranda rule "does not require that the statements taken without complying with the rule and their fruits be discarded as inherently tainted," Elstad, 470 U.S., at 307, 105 S.Ct. 1285. Such a blanket suppression rule could not be justified by reference to the "Fifth Amendment goal of assuring trustworthy evidence" or by any deterrence rationale, id., at 308, 105 S.Ct. 1285, and would therefore fail our close-fit requirement.U.S. v. Patane, 542 U.S. at 639-640; see also id. at 634("[W]e believe that the Court's decision in Oregon v. Elstad, [is] instructive."). The Court continued:
police do not violate a suspect's constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, "[t]he exclusion of unwarned statements . . . is a complete and sufficient remedy" for any perceived Miranda violation. Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the "fruit of the poisonous tree" doctrine. . . .Id. at 642.
Thus, and as Patane confirms Elstad's holding, violation ofMiranda does not require suppression of the fruits of the suspect's statements unless those statements were a product of coercion.
The same day the Supreme Court decided Patane, it decidedMissouri v. Seibert, 542 U.S. 600 (2004). At issue in Seibert was the admissibility of a confession obtained by the use of a two-step interrogation strategy, termed "question-first." The strategy called for the deliberate withholding of the Miranda warning until the suspect confessed, followed by a Miranda warning and a repetition of the confession already given. 542 U.S. at 604, 609-11 (Souter, J., plurality opinion) ("This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation ofMiranda, the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement.").
The Court found that, under those circumstances, the Miranda warnings were ineffective because someone who had confessed a few minutes ago would not understand that he or she had a right to remain silent or have an attorney present during questioning about matters which he or she had just discussed with the police. See, Missouri v. Seibert, 542 U.S. at 614 ("[I]t would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply becauseMiranda warnings formally punctuate them in the middle.").
In so finding, the Seibert Court specifically reiteratedElstad's rejection of the "tainted fruits of the poisonous tree" doctrine or the "cat out of the back theory." Id. at 612. The Court explained:
Respondent Seibert argues that her second confession should be excluded from evidence under the doctrine known by the metaphor of the "fruit of the poisonous tree,". . . But the Court in Elstad rejected the . . . fruits doctrine for analyzing the admissibility of a subsequent warned confession following "an initial failure . . . to administer the warnings required by Miranda." Elstad, 470 U.S., at 300, 105 S.Ct. 1285. In Elstad, "a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will" did not "so tain[t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." Id., at 309, 105 S.Ct. 1285. Elstad held that "a suspect who has once responded to unwarned yet. uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id., at 318, 105 S.Ct. 1285.Id. The Court then distinguished Elstad:
The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.
At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying "we've been talking for a little while about what happened on Wednesday the twelfth, haven't we?" The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talkId.
Justice Kennedy concurred in Seibert, observing that Elstad continued to apply. Id. at 618, 620 ("In my view, Elstad was correct in its reasoning and its result."). According to Justice Kennedy, "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed." Id. at 622.
Significantly, Justice Kennedy found that
If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn.Id.
Against this backdrop, the state supreme court's refusal to apply the full "tainted fruits of the poisonous tree" doctrine or the "cat out of the bag theory", and find Storm's statements made at the second home interview inadmissible was not an unreasonable application of clearly established federal law. Elstad's rejection of that doctrine or theory has been twice confirmed. Under Seibert, to the extent the first and second confessions here are not "realistically seen as parts of a single, unwarned sequence of questioning," the Supreme Court has reiterated that the Elstad analysis is the correct one. As Judge Porter found, this was essentially the position the state supreme court took when it applied Elstad:
[Storm] arrived at the [police] station on his own, was treated courteously, was not deprived of human comforts or necessities, and was not worn down by lengthy interrogation. Though Redden did not honor [Storm's] request for counsel, Redden employed no interrogation techniques involving actual physical or psychological coercion. He merely offered a sympathetic ear and encouraged [Storm] to keep talking. [Footnote omitted]
Little encouragement was needed. Though emotional and disjointed, [Storm's] statement emerged in narrative form. Storm expressed an understanding of his predicament, and he tried on several occasions to restrain himself before more damage was done, but once told he had failed the polygraph examination, he displayed a manifest eagerness to unburden his conscience. He told Redden he should not have agreed to the test, because he knew he could not lie. He insisted at several points that he wanted to help the authorities close the case. Indeed, he seemed motivated in large part by a desire to put forth a self-serving version of his role in Andrade's death.
Before leaving the station . . ., [Storm] pressed Detective Rowe to contact witnesses who would corroborate his claims about Andrade's depressed mental state. He also told Rowe that while he wished he had not said anything, "I can't live with the guilt either." Thus, there seems no doubt that [Storm's] statements on November 19 stemmed not from police coercion but from his own troubled conscience, his assumption he would inevitably be caught, and a desire to minimize his culpability.
[Storm] points to his several complaints, during the [first] interview, that he had gotten no sleep the previous night. But [Storm's] lack of rest was not the result of state compulsion. We have little difficulty in concluding, as the trial court implicitly did, that [Storm's] [first station house] statement was voluntary.
The same is true of the [second home interview] statement. [Storm] stresses that he did not recontact the detectives between November 19 and November 21, but all other signs are that he spoke with them freely. On November 19, Detective Rowe had admonished him that the matter was not concluded. [Storm] had responded he realized this was so, and he had urged Rowe to investigate and confirm Andrade's suicidal depression. The trial court viewed this latter action as "clearly . . . an effort on (defendant's) part to reinitiate some contact with the police." Thereafter, [Storm] had been free for two days, with ample opportunity to consider his situation and seek help, including legal assistance, if he wished.
On November 21, the officer approached him at his home. As the trial court recited, "they knock(ed) at the door, (and) contact(ed) (defendant) who invite(d) them to come in and agree(d) to talk to them." "They (told) him they (would) leave . . . (a)t the conclusion of the interview, (and) they (did) leave, and he (was) free to go about his business." The interview itself lasted slightly over one hour. The detectives used no coercive tactics. As on November 19, [Storm] did most of the talking, while the officers interrupted only occasionally to clarify points he had made. In the interview transcript, [Storm] displays no agitation or hesitancy. He appears calm, prepared, and intent on presenting a coherent and sympathetic version of his claim that he assisted Andrade to commit suicide.
Moreover, [Storm] made clear on November 21 that he was not confessing simply because he had already incriminated himself on November 19. On the contrary, he said he assumed he had left telltale evidence behind, always knew he could not get away with it, and never really intended to escape, but attempted a feeble coverup only because of a human instinct for "self-preservation." Indeed, [Storm] remarked, "the first night you were here and said you'd probably want me to come down for a polygraph, . . . I knew it was over." (Italics added.) Under these circumstances, we are amply persuaded that [Storm's] November 21 statement, like the one have on November 19, was voluntary.Storm, 28 Cal.4th at 1035-36.
As required by Elstad, the state court considered the conduct of the police in continuing the interrogation after Storm had invoked his right to counsel and in conducting the interview in his home two days later where fresh Miranda warnings were not required, and reiterated: " we have found no evidence of ruse, subterfuge, or pretext in this case, and have limited our holding accordingly." Id. at 1038 (Emphasis in original). The state court's adjudication does not involve an unreasonable application of Elstad. As Elstad held absent "any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will," a Miranda violation will not taint "the investigatory process [such] that a subsequent voluntary and informed waiver is ineffective for some indeterminate period," and "the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." Elstad, 470 U.S. at 309.
Moreover, as Judge Porter found, the record supports the state court's conclusions. Specifically, Judge Porter found that "[t]he transcript of the first interview supports the state court's finding that the polygraph examiner employed no techniques involving coercion, that [Storm] understood his predicament and attempted to restrain himself but displayed an eagerness to unburden his conscience, and that he put forth a self-serving version of his role in his wife's death." The transcript also demonstrated, Judge Porter found, that Storm
indicated he understood he was going to have to at least face charges arising from assisting his wife's suicide, and he asked the polygraph examiner to make sure the detectives were aware that there were witnesses who could confirm his story that his wife was depressed and suicidal, and stated that the physical evidence would confirm that she did not struggle during her death. When the interview ended, detective Rowe told [Storm] he could not legally continue to speak to [Storm], and gave [Storm] a telephone number that [he] could use to contact Rowe if he wanted to discuss the case. [Storm] then identified the people who were able to confirm his wife's desire to commit suicide and said that he would keep Rowe informed of his whereabouts; [Storm] acknowledged Rowe's statement "don't think this is over with by any means," by replying: "It's not gonna be over until I'm laid to rest." As Detective Rowe was escorting [Storm] out of the interview room, Rowe stated: "Okay. Well uh, you know how to get a hold a me [sic] if you wanna talk," to which Petitioner immediately replied: "I really wish I could so you could just close the case but it's not that simple you know, I, I know I'm not gonna get away clean, I wish I hadn't said anything. But I can't live with the guilt either."
Judge Porter further found that,
the record support[ed] the state court's finding that the second interview was conducted in a non-custodial setting and the statements elicited during that interview were voluntary and were not the product of coercion. The transcript of the second interview demonstrates that, as the state court found, [Storm] did most of the talking and appeared prepared and intent on presenting a coherent and sympathetic version of his assisted suicide story. [Storm] was prompted to speak simply by Rowe's statement that "they just wanted to hear his side of the story," and was assured that the police would leave after the interview was over.
Significantly, Storm offers nothing in his Objections to rebut neither the state court's, nor Judge Porter's, factual findings. And as previously noted, it was his burden to do so with clear and convincing evidence. See, 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct."); U.S. v. Remsing, 874 F.2d at 617 ("If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law.").
Although the state supreme court dissenting Justices' position is well reasoned, it appears that they were for the most part laboring under the theory that the fruits of the poisonous tree doctrine could apply to Fifth Amendment violations. The dissenting Justices would have found that Storm's second confession should be "deemed" to be involuntary because two days was not a sufficient break for Storm, who had already "let the cat out of the bag," to recover from the "inherent pressures" arising from the initial Miranda violation, and because the record failed to indicated that he had actually contacted an attorney or conferred with friends or family. Storm, 28 Cal.4th at 1047-48 (Chin, J., dissenting, joined by George, C.J.).
Certainly, the dissent's viewpoint is a reasonable one. However, the Supreme Court in Elstad has determined that the fruits of a poisonous tree doctrine simply does not apply to Fifth Amendment violations. Moreover, the federal circuits, including the Ninth Circuit, have uniformly held that a suspect not being in continuous custody and having sufficient time and opportunity to consult counsel dissipate any presumption of unlawfulness. See, e.g., U.S. v. Hines, 963 F.2d at 257 ("[W]e [have] held that the Edwards rule does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinterrogated."); U.S. v. Harris, 221 F.3d at 1053 ("[W]e conclude that a three-hour break in time defeats Edwards protection, since Harris had ample opportunity to consult his family, friends, or a lawyer."); McFadden v. Garraghty, 820 F.2d 654, 660-61 (4th Cir. 1987);United States v. Barlow, 41 F.3d 935, 945-46 (5th Cir. 1994);United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982); United States v. Geittmann, 733 F.2d 1419, 1425 (10th Cir. 1984); Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir. 1988). This is true even "when [as here] the police wrongfully ignore a defendant's request for counsel. . . ." Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir. 1988); see also, McFadden v. Garraphty, 820 F.2d 654, 661 (4th Cir. 1987); U.S. v. Bautista, 145 F.3d 1140 (10th Cir. 1998).
That two of the seven Justices on the California Supreme Court came to a different conclusion certainly weighs in Storm's favor that his position is reasonable. However, it does not change this Court's determination that the finding of the majority of the state supreme court was itself objectively reasonable. See Early v. Packer, 537 U.S. 3, 10 (2002) (where, as here, "it is at least reasonable to conclude that [the state court's conclusion was reasonable] . . . the state court's determination to that effect must stand."); see also, Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003) ("[H]abeas relief should not be granted if the state court decision can be said to be one of several equally plausible outcomes."); Weighall v. Middle, 215 F.3d at 1062 ("It is not enough for [the Court] to determine in [its] independent judgment that the state court decision was incorrect or erroneous — instead the important question is whether the state court's decision was `objectively unreasonable.'").
The state supreme court's determinations that Storm's confessions were knowingly and voluntarily made, and that there were no coercive tactics used or any other circumstances calculated to undermine his free will, are objectively reasonable and are supported by the record. As a result, Storm has failed to demonstrate that the state supreme court's application of clearly established federal law was objectively unreasonable.
In his Objections, Storm cites United States v. Reilly, 224 F.3d 986 (9th Cir. 2000). That court held that "[c]ontinued questioning after the accused has requested counsel violates the accused's constitutional rights, and any evidence secured as a result of the unlawful questioning should be suppressed as the fruit of the illegal activity, otherwise known as the `fruit of the poisonous tree.'" U.S. v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000). However, as the above discussion demonstrates, the Supreme Court has discredited Reilly's holding not only inElstad, but also most recently in Patane and Seibert. Specifically, the Supreme Court has clearly established that the fruits of the poisonous tree doctrine that Wong Sun v. United States, 371 U.S. 471 (1963) held applies to Fourth Amendment violations, does not apply to Fifth Amendment violations. See, Elstad, 470 U.S. at 311 ("[T]his Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed."). Moreover, as noted above, "[a] state court decision may not be overturned on habeas review . . . because of a conflict with Ninth Circuit-based law. . . ." Moore v. Calderon, 108 F.3d at 264 (9th Cir. 1997); see also, Kane v. Garcia Espitia, 126 S.Ct. 407 (2005).
IV. CONCLUSION.
For the reasons set forth in Judge Porter's Report as well as the reasons stated above, the Court finds that the adjudication of Storm's claims by the state supreme court was not contrary to, and did not involve an unreasonable application, of clearly established federal law, and was not based on an unreasonable determination of the facts. Accordingly, Storm is not entitled to habeas relief. His Petition is DENIED. The Clerk shall close the file.SO ORDERED.