REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
FEDERAL COURT PROCEEDINGS
Petitioner, who is now represented by counsel, filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" and an attached memorandum ("Pet. Mem.") on January 12, 2012. Respondent filed an Answer and a supporting memorandum on April 24, 2012, and concurrently lodged several documents. Petitioner filed a Reply to the Answer on July 23, 2012.1 This case was reassigned to Magistrate Judge Charles F. Eick on January 2, 2013.
STATE COURT PROCEEDINGS
A jury found Petitioner guilty of second degree murder, attempted murder, and street terrorism, for his participation in a gang-related shooting. (Clerk's Transcript ("C.T.") 385, 388, 391; Reporter's Transcript ("R.T.") 523-27). The jury found true the allegations that the crimes were committed for the benefit of a criminal street gang and that Petitioner vicariously discharged a firearm (C.T. 386-87, 389-90; R.T. 523-25). The trial court sentenced petitioner to 60 years to life (C.T. 471-72; R.T. 549-50).
Prior to trial, Petitioner filed a motion to suppress statements he made to police during two interviews, arguing alleged Miranda2 violations (R.T. 3; C.T. 220-34 (motion)). Petitioner argued that the police deliberately had used a two-step interview strategy like the strategy disapproved in Missouri v. Seibert, 542 U.S. 600 (2004) ("Seibert") (discussed below) (R.T. 62-63; C.T. 220-21, 229-34). According to Petitioner, the police deliberately withheld Miranda warnings during an initial interview in which Petitioner confessed to the crime and the police then repeated the interview questioning after Miranda warnings in order to elicit a second, warned confession (R.T. 62-63; C.T. 220-21, 229-34).3 The prosecution conceded that evidence of the first interview should be excluded from evidence but contended that evidence of the second interview was admissible (R.T. 3, 61-62; C.T. 53-60 (prosecution's opposition)).
After hearing testimony from one of the investigators who had interviewed Petitioner, the trial court found that the police had not used the deliberate two-step strategy forbidden in Seibert, and that Petitioner's second interview was voluntary, complied with Miranda, and could be admitted at trial. See R.T. 12-47, 64-66 (relying on Oregon v. Elstad, 470 U.S. 298, 314 (1985) ("Elstad") (also discussed below); C.T. 266.4 The trial court allowed the investigator to testify at trial regarding the incriminating statements Petitioner made during the second interview (R.T. 272-93, 298-310).
Petitioner argued on direct appeal, inter alia, that the trial court erred under Seibert in failing to suppress Petitioner's Mirandized statements (Respondent's Lodgments 3, 5). Petitioner also argued that his counsel was ineffective for assertedly failing to urge the trial court to: (1) review a complete transcript of the second interview, and (2) review whether the police used a deliberate two-step strategy under those factors specified in United States v. Williams, 435 F.3d 1148, 1159 (9th Cir. 2006) ("Williams"). See Respondent's Lodgment 3 at 30. Petitioner made similar claims in a petition for writ of habeas corpus filed with the California Court of Appeal (Respondent's Lodgment 6; see also Respondent's Lodgment 8 at p. 20 (noting same)). This petition included a complete transcript of the second interview of Petitioner (Respondent's Lodgment 7 (Appendix C)).
In a reasoned opinion, the Court of Appeal affirmed the judgment and denied the habeas petition (Respondent's Lodgment 8). The Court of Appeal concluded that substantial evidence supported the trial court's finding that the investigators who interviewed Petitioner did not deliberately use a two-step interrogation strategy to circumvent Miranda, as had occurred in Seibert (Respondent's Lodgment 8 at 19-20). The Court of Appeal also found that Petitioner's counsel was not ineffective because: (1) the trial court had read the Williams case; and (2) there was enough evidence for the trial court to understand that the first interview was complete and "left few inculpatory revelations for [Petitioner] to disclose in the second" (Respondent's Lodgment 8 at 22-23).
In a petition for review, Petitioner presented to the California Supreme Court the same claims previously rejected by the Court of Appeal (Respondent's Lodgment 9). The California Supreme Court summarily denied review on January 19, 2011 (Respondent's Lodgment 10). Petitioner presents the same claims in the present case.
SUMMARY OF EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Camino, 188 Cal.App.4th 1359, 1363-67 (2010) (lodged as Respondent's Lodgment 8). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
[Petitioner] and his fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang on September 30, 2007. Palacios, the lone shooter in [Petitioner's] group, was shot and killed by a bullet of unknown origin.
* * *
At trial, Corporal David Rondou testified to the following information divulged by [Petitioner] during the second interview.
[Petitioner] is a former Hard Times gang member with the moniker, "Tiny." On the night of the shooting, he went "bar hopping" with his nephew, Miguel Martinez. Later, with Martinez driving a white Chevy Camaro, they drove into the neighborhood claimed by Hard Times. There, they saw Palacios, whom [Petitioner] recognized as a Hard Times gang member.
The Camaro pulled up to Palacios. Palacios, not knowing [Petitioner] or Martinez, reached in his waistband for his gun. [Petitioner] introduced himself to Palacios, saying he [Petitioner] used to "kick it" with Palacios's brother, another Hard Times gang member. [Petitioner] told Palacios that Martinez was "Flaco" of the Lil Hood gang. Palacios got in the back seat of the Camaro and later displayed a .40-caliber handgun.
After drinking "a little bit," the threesome decided to drive to the neighborhood claimed by Lil Hood. There, they went to a small strip mall comprised of a 7-Eleven store and a Laundromat. [Petitioner] knew that, although the Lil Hood gang claimed this territory, the Barrio Small Town gang (BST) had been trying to take it over and had marked it with graffiti.
Two or three months earlier, at this mall, [Petitioner], Martinez, and another Lil Hood gang member had lost a fistfight against some BST members. [Petitioner] had "back[ed] up" Martinez in that fight.
Now, Martinez parked the Camaro near the 7-Eleven store and the threesome stood there drinking. From around the corner came three BST members, one of whom had been involved in the prior fistfight. [Petitioner] knew that these BST "guys" lived in a house "three or four [houses] down" the alley.
Martinez walked toward the BST members, "throwing his hands up . . . in a `what's up' kind of deal." [Petitioner] backed up Martinez by walking with him, thinking there would be "a physical altercation."
From behind them, Palacios fired his gun twice. The BST members ran back down the alley. Palacios said words like, "Let's go get them, let's go shoot them again." They got in the Camaro with Martinez driving, Palacios in the front passenger seat, and [Petitioner] in the back.
The Camaro drove into the alley, Martinez asked, "Where are they?" and turned off the car's headlights.
Palacios got out of the car, stood by the door, and started shooting. Martinez started to get out too, but retreated into the car at the sound of return gunfire. The Camaro backed out of the alley, leaving Palacios behind, alone on foot. Martinez and [Petitioner] circled the block, whistling and trying to find Palacios. After a couple of loops, they found him lying in a driveway. As Martinez started to get out of the Camaro, they heard sirens. Martinez jumped back in the Camaro, and he and [Petitioner] tried to flee the scene.
Other Evidence
A police officer dispatched to the scene at around 3:00 a.m. came upon a white Camaro suspiciously stopped in the middle of the street with its headlights off. The Camaro started to drive away with its lights still off. The officer initiated a "high risk" traffic stop. Martinez was the driver of the Camaro and [Petitioner] a passenger. No weapons were found on them or in the car.
On a driveway, Palacios lay facedown with a gun in his hand and no pulse. He had bled to death after a single bullet went into his left arm, through his chest, and out his right arm. About five bullet casings were found in the alley.
David, Adolfo, and Juanita Rodriguez are siblings who reside in a house "butting up to the alley." At around 3:00 a.m., David (a 19-year-old BST member) heard about five gunshots. At trial, David first testified that, upon hearing the gunshots, he did not go out to the alley and furthermore that he had never seen the white Camaro before. But in his police interview on the day of the shooting, David said he was awakened by the sound of gunfire, went out into the alley, and saw a car drive down the alley. When pressed at trial about which story was accurate, David said he saw a white car in the alley that night. He had seen that car in the neighborhood several times before that night and knew it was associated with Lil Hood. According to David, BST is not friendly with Lil Hood, but is friendly with Hard Times. David saw a male in a white shirt with a handgun walking toward the Camaro. He saw the car back out of the alley.
On cross-examination, David said he heard a group of about three "piasas" (people from Mexico) throw beer bottles at the Camaro and the male shooter. David did not know whether one of the piasas might have been shooting a gun.
When pressed on redirect, David agreed he told police he saw two people outside the Camaro, one in a white shirt who got into the car and the other shooting a gun.
Adolfo, who was 16 years old at the time of trial, testified that around 3:00 a.m. that day, a party had ended at his house. Adolfo and two friends went to the 7-Eleven store to buy cigarettes. They saw a white Camaro, heard shots, and "started running back." The shots came from the passenger side of the car. (In his police interview, Adolfo said the occupants of the car got out and threw gang signs, and one fired at him. At trial, Adolfo could not recall which version was correct.) Adolfo had seen the car pass through the alley behind his house on three or four prior occasions and associated it with Lil Hood. The occupants of the white Camaro had "tried to jump" Adolfo less than a month before the shooting.
Juanita, who was a 27-year-old mother at the time of trial, had seen the white Camaro in her neighborhood many times. A tall, skinny male known as Flaco owned it. That night, there was a family reunion at their house. Juanita was awakened at 3:00 a.m. by gunshots. She saw the white Camaro driving out of the alley onto a nearby street. She threw some beer bottles at the car.
On a prior occasion, two males named Flaco and Tiny had come to the house and pointed a gun at Juanita in front of her daughters. The men had been looking for Juanita's brothers. One man said he was from Lil Hood, the other from Hard Times. She told them she did not "gang bang."
Juanita testified that the Lil Hood gang member drove the Camaro on the night of the shooting. She identified the two males in photo lineups three days after the shooting. In a police interview a few days after the shooting, Juanita identified Martinez as occupying the Camaro seconds after the homicide and on the day prior to the shooting. She identified [Petitioner] as occupying the car less than eight hours before the homicide. At about 1:00 p.m., the day before the shooting, Juanita saw the car pass through her neighborhood several times. A couple of months earlier, her brother had been involved in a fight at the 7-Eleven store. Juanita had gone to the 7-Eleven store and confronted Martinez and [Petitioner]. Shortly after that, Martinez came to Juanita's house and continued the argument with Juanita.
A gang expert testified that the Lil Hood and BST gangs laid claim to the area where the crime occurred, with BST's claim based on the Rodriguez family being "well entrenched" in BST. Hard Times is associated with Lil Hood and therefore a rival of BST. The expert opined that, at the time of the crime, [Petitioner] and Palacios were active participants in Hard Times; Adolfo and Daniel in BST; and Martinez in Lil Hood. He opined that "hypothetically speaking," if Hard Times and Lil Hood gang members were beaten up by BST members in a fight, this would bring disrespect upon the Hard Times and Lil Hood gangs as well as upon the specific members involved in the fight. He further opined, hypothetically speaking, that if a couple of months later, several BST members were to walk up to two Hard Times members and one Lil Hood member, and one of the Hard Times members shot at the BST group, this would be an "act of retaliation."
See People v. Camino, 188 Cal.App.4th 1359, 1364-68 (2010) (internal footnotes omitted).
STANDARD OF REVIEW
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d), as amended by the "Anti-Terrorism and Effective Death Penalty Act of 1996" ("AEDPA"); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63 (2003). Only United States Supreme Court precedent can constitute "clearly established Federal law" within the meaning of section 2254; "circuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court'" and "therefore cannot form the basis for habeas relief. . . ." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012).
A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06. Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision on the claim or claims presented. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert. denied, 130 S.Ct. 183 (2009). Where there exists only a summary denial of a claim, "a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. at 786; accord Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011).
DISCUSSION
For the reasons discussed below, the Court should deny and dismiss the Petition with prejudice.
I. Petitioner's Claim that the Trial Court Erred in Admitting Evidence from Petitioner's Second Police Interview Does Not Merit Habeas Relief.
Petitioner contends, as he did in the state courts, that the trial court erred under Seibert in allowing the prosecution to admit evidence from Petitioner's second interview with police (Pet. Mem., pp. 18, 20-33; Reply, pp. 4-8). This contention does not merit habeas relief.
A. Governing Legal Principles
Miranda generally bars the use of statements elicited by custodial interrogation unless the person in custody first was informed of his or her constitutional rights. Miranda, 384 U.S. at 444; see also J.D.B. v. North Carolina, 131 S.Ct. 2394, 2401-02 (2011) and Florida v. Powell, 130 S.Ct. 1195, 1203-04 (2010) (generally discussing same). "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." Elstad, 470 U.S. at 307.
Where a confession is obtained after Miranda warnings, but also after an earlier, unwarned confession, the post-Miranda confession can be admissible, provided that the questioning was not coercive. Elstad, 470 U.S. at 312-14, 318.5 "[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. In such a case, "the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights." Id. at 314. The Elstad Court reasoned:
[A]bsent deliberately coercive or improper tactics in obtaining an initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of that earlier statement.
Id. at 314.
In Seibert, the police had deliberately used a "question first" strategy as a way to circumvent Miranda. Seibert, 542 U.S. at 605-06, 618.6 The rule of Seibert is found in the concurring opinion of Justice Kennedy. See United States v. Reyes-Bosque, 596 F.3d 1017, 1031 (9th Cir.), cert. denied, 131 S.Ct. 249 (2010) and 131 S.Ct. 898 (2011). The rule of Seibert provides that "where officers deliberately use a two-step interrogation strategy in which they elicit an unwarned confession, administer the Miranda warnings and obtain a waiver of Miranda rights, then elicit a repeated confession, the [trial] court must suppress post-warnings statements unless the interrogators take curative measures to apprise the defendant of his rights. If the use of the two-step method is not deliberate, however, the post-warning statements are admissible if they were voluntarily made." Id. (citations and quotations omitted; emphasis added); see also United States v. Shelter, 665 F.3d 1150, 1160 n.4 (9th Cir. 2011) ("[I]n the absence of a deliberate law enforcement decision to conduct an un-Mirandized interrogation in advance of one with Miranda warnings, a `careful and thorough administration of Miranda warnings serves to cure' a confession that would otherwise be inadmissible based on a theory that it was induced by a prior confession made in absence of Miranda warnings." (citing Seibert (Kennedy, J., concurring), and quoting Elstad) (emphasis added); Seibert, 542 U.S. at 622 (Kennedy, J., concurring).
Justice Kennedy's concurring opinion in Seibert "did not articulate how a court should determine whether an interrogator used a deliberate two-step strategy." Williams, 435 F.3d at 1158. In Williams, a direct appeal from a federal conviction, the Ninth Circuit stated that a court should examine whether "objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." Williams, 435 F.3d at 1159. According to Williams, relevant objective evidence includes "the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of pre- and postwarning statements." Id.7
B. Evidence Concerning the Circumstances of Petitioner's Interviews
The evidence adduced at the state court hearing demonstrated the following:
In the early morning hours of September 30, 2007, Homicide Detective David Rondou received a call that there had been a gang-related shooting (R.T. 13, 19, 25). Rondou spoke with responding patrol officers at the scene of the shooting and learned that the officers observed a white Camaro leaving the area where the decedent was found (R.T. 21, 30). The Camaro had a possible bullet hole in the driver's side door (R.T. 40-41). The two occupants of the car appeared to have been with the decedent or at least were associated with him, so they had been taken into custody and brought to the police station for questioning, and their car had been impounded (R.T. 21, 25, 30, 38, 40). Rondou testified that it was common practice in gang homicides for patrol officers to bring witnesses (as well as suspects) to the police station for interviews (R.T. 26). Rondou said he did not know at the time of the interviews that the Camaro had been stopped based on police speculation that the car had been involved in the shooting (R.T. 32-33).
Rondou attempted to identify the victim by name and determine who everyone was before interviews (R.T. 23-24). Rondou knew that Petitioner had prior gang involvement (R.T. 41). When Rondou began the interviews by questioning Martinez (who was driving the car), Rondou knew that someone had been shot and killed but did not know how the shooting happened (R.T. 23).
Martinez told Rondou that he had no idea what happened but admitted that he had been with the victim sometime during the evening of the shooting (R.T. 25). Rondou, along with Detective Rodriguez, then interviewed Petitioner for the first time for approximately 30 to 45 minutes (R.T. 26, 44). Rondou said that at the outset of the interview Rondou did not know whether Petitioner was a witness, a victim, a potential victim, or a suspect in the case (R.T. 26).
Through the first interview of Petitioner, Rondou learned that there had been two separate shootings that had led to the victim's death (R.T. 27). When Rondou realized Petitioner might have some criminal culpability, Rondou stopped the interview (R.T. 27-28). After a 30-minute break, Rondou went to a different interview room, Mirandized Petitioner, and asked Petitioner to state again what had taken place that evening (R.T. 28, 46).8
Rondou said he made no threats or promises, exerted no pressure, and was not confrontational in either interview (R.T. 28, 47). Rondou did admit to once having accused Petitioner of lying during the initial interview, however (R.T. 44). Petitioner indicated he understood his Miranda rights and acknowledged that such rights had been read to him previously (R.T. 28-29). Rondou said he did not intentionally withhold a Miranda advisement in order to obtain inculpatory statements (R.T. 29). Rondou did not recall ever hearing or being told that interrogations should occur without Miranda advisements to prevent defendants from testifying (R.T. 17-18).9
C. Summary of the Interviews
Petitioner's first interview began with the detectives asking Petitioner for his name, where he lived, and about Petitioner's piercings and gang tattoos (C.T. 478-80, 482). The detectives asked whether Petitioner had a nickname, if he was on probation or parole and for what, and asked if Petitioner had ever been busted for "gang stuff" (C.T. 481-82).
The detectives then asked if Petitioner knew why he was at the police station and Petitioner replied, "Yeah" (C.T. 483). They asked whether Petitioner knew "that kid," presumably Palacios, and if that night was the first time Petitioner had ever met Palacios (C.T. 483). Petitioner initially denied knowing Palacios, saying "I never seen him until we got there. We passed by and we seen somebody on the ground. So my nephew, [Martinez], we passed by and he tried to get off and boom, there come the cops so. . ." (C.T. 483). Rondou knew from interviewing Martinez that, according to Martinez, Palacios had been with Petitioner and Martinez (see R.T. 25), so Rondou continued:
RONDOU: That's weird.
CAMINO: Why is that?
RONDOU: Because your cousin said he was with your [sic] guys all night. You were with your cousin right?
CAMINO: He's my nephew
RONDOU: Or your nephew. . .
CAMINO: [unintelligible]
RONDOU: He said you guys were together. Evidently you're not ready to tell me the truth on what happened tonight, huh? Is that the case, Jose?
(PAUSE)
CAMINO: [unintelligible]
RONDOU: You know that kid got hurt real bad, right?
CAMINO: Yeah.
RONDOU: He ain't gonna make it. That's a young boy with a family, you know what I mean?
CAMINO: Yeah.
RONDOU: Mom is suffering, regardless of what choices he made. We still need to . . . figure out what took place, you know what I mean? We talked to enough people; we pretty much know what happened. . .
CAMINO: Uh huh.
RONDOU: But you were out there and you're . . . you're part of this whole thing, so. . .
CAMINO: Yeah.
RONDOU: We gotta get everybody's side of the story.
CAMINO: [unintelligible]
RONDOU: And we didn't start off on a great foot, did we?
CAMINO: No, we didn't.
RONDOU: So why don't we . . . why don't we . . . why don't we back up. Alright?
CAMINO: Uh huh.
RONDOU: What happened that night?
CAMINO: Well, I guess he got shot.
RONDOU: Tell me something I don't know, Jose.
CAMINO: (LAUGHED)
RONDOU: How did your night start out? Where'd you . . . where did you tie in with your . . . your nephew?
CAMINO: Oh. . . I mean. . .
RONDOU: [unintelligible] together. Start us back at the beginning.
CAMINO: Let's see . . . I went to work. Cleaned my van. Got back home like around . . . let me see what time it was, like around 1:30, 2:00.
RONDOU: In the afternoon?
CAMINO: Yeah.
RONDOU: Okay.
(C.T. 483-85).
With very few additional questions, Petitioner went on to describe the events that had occurred. See C.T. 485-90. The detectives then questioned Petitioner concerning the details of those events to discover whether Petitioner knew why Palacios had a gun (Petitioner said for protection from "Santa Nita"), whether Petitioner had touched or held Palacios's gun (Petitioner said he had not), the location of the men in relation to the rival gang members when the rivals initially walked by, and how the two separate shootings had occurred (C.T. 490-511). Rondou then asked Petitioner if he needed to use the restroom (C.T. 511). Petitioner said he needed a drink of water, and the interview stopped (C.T. 511).
At the outset of the second interview, Rondou asked Petitioner if he would mind looking at some photos to identify the rival gang members (Respondent's Lodgment 7, Appendix C, p. 1). Rondou then advised that, because of the incident that happened that evening and because "we got a kid who got hurt pretty bad out there," the detectives needed to read Petitioner his rights and would go over again "everything that happened" (id., p. 2; see also C.T. 476 (excerpt of same which was before the trial court)). Petitioner was read his Miranda rights and acknowledged understanding each right (Respondent's Lodgment 7, Appendix C at pp. 2-3). Rondou then said, "I just want to go over again with you, is that okay?" (Id. at 3). Petitioner replied, "Yeah" and said "No problem" (Id.). The detectives then questioned Petitioner in detail concerning the story Petitioner previously had related (Id. at 3-48). Petitioner answered all questions asked (Id.).
D. The State Courts' Finding That There Was No Seibert Violation Was Reasonable
As summarized above, the trial court found that the police had not used a deliberate two-step strategy, and that Petitioner's second interview complied with Miranda, was voluntary, and could be admitted at trial. See R.T. 64-66 (relying on Elstad). The trial court stated that the evidence Petitioner was a principal in the shooting was "not crystal clear" to the responding police officers (R.T. 63). Although acknowledging the relevance of the "objective evidence" mentioned in Williams, the trial court ultimately credited Detective Rondou's subjective testimony that he did not deliberately use a two-step process (R.T. 57, 63-66).10 The trial court found that Rondou behaved in a "professional way," making no threats or promises, and exerting no pressure during the interview (R.T. 65).
On review, the Court of Appeal found that substantial evidence supported the trial court's findings (Respondent's Lodgment 8 at 19-20). The Court of Appeal explained:
Rondou testified that he did not intentionally withhold Miranda warnings to obtain inculpatory statements in a second, Mirandized interview. He testified he made no threats or promises. The trial court found Rondou to be professional and, impliedly, credible. At the start of the first interview, the officers did not know under what circumstances [Petitioner] had been with Palacios at the time of his murder (or even, definitively, whether [Petitioner] had been with Palacios at all). Nor did they know about Palacios's gunshots at the 7-Eleven store or the prior fight a few months earlier at the Laundromat. Rondou testified it was not the police department's policy to Mirandize every potential witness or victim in a gang homicide case prior to interviewing them.
Nonetheless, this is a close case because of the continuity between the two interviews and because of the comprehensiveness of the first interview, which left "little, if anything, of incriminating potential left unsaid" (Seibert, supra, 542 U.S. at 616 (plur. opn.)), and which [Petitioner] describes as having "all the earmarkings of a classic custodial interrogation." Once the officers learned enough information to realize [Petitioner] was a suspect, they should have immediately terminated the interview. In the 34-page transcript of the first interview, [Petitioner] first disclosed Palacios's gunshots at the 7-Eleven store and the Camaro's entry into the alley on page 11, and the prior fight at the Laundromat on page 20. Giving the officers the benefit of the doubt, however, [Petitioner] was not a classic suspect; he was ultimately tried on a provocative acts theory of murder.11 In the latter two-thirds of the interview, Rondou often appeared to seek identifying and/or incriminating information about the BST shooters and Martinez, not necessarily about [Petitioner]. The trial court read the transcript of the first interview, as well as the relevant case law, and found, in part based on its observation of Rondou's demeanor at the hearing, that the officers did not deliberately circumvent Miranda — a factual finding supported by substantial evidence.
(Respondent's Lodgment 8 at 19-20).
Given the evidence before the state courts, this Court deems reasonable the state courts' factual determination that the police did not deliberately use a two-step interview strategy like that condemned in Seibert. See United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007) (concluding that deliberateness finding is a factual finding); see also 28 U.S.C. § 2254(d)(2). Detective Rondou steadfastly maintained that he did not deliberately use a two-step strategy. With regard to the circumstances surrounding the interrogations, it was not clear to the detectives at the beginning of the interview that Petitioner was a suspect. Petitioner was cooperative with the detectives, volunteering his initial account of what transpired with very little questioning. The detectives probably should have ceased unwarned questioning when they learned facts arguably supporting Petitioner's criminal culpability under the provocative acts doctrine. As the Court of Appeal aptly observed, however, Petitioner was not "a classic suspect"; the provocative acts doctrine is not a classic theory of criminal culpability. It is not unreasonable to believe that the thought of Petitioner's criminal culpability under the provocative acts doctrine was absent from the detectives' minds during the first interview. Most, if not all, of the Williams factors arguably weigh in favor of a finding of deliberateness. Yet, none of these factors, and none of the evidence before the state courts, necessarily demonstrates that Rondou was untruthful or that the police used a deliberate strategy to circumvent Miranda.
Petitioner essentially invites this Court to reweigh the objective and subjective evidence to conclude that the police deliberately used a two-step strategy to circumvent Miranda. See Pet. Mem., pp. 23-32; Reply, pp. 4-8. Under the applicable standard of review, the Court must decline this invitation. Even if this Court might have reached a different deliberateness determination in the first instance (a question this Court need not and does not answer), the result herein would remain the same. "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849 (2010) (where "[r]easonable minds reviewing the record might disagree," that does not "suffice to supercede the trial court's. . . determination.") (citation and internal quotations omitted); Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.), cert. denied, 543 U.S. 1038 (2004) ("a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable") (citations omitted). AEDPA "demands that state-court decisions be given the benefit of doubt." Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (citation omitted).
The state courts were in the best position to determine Rondou's credibility concerning whether he deliberately used a two-step interview strategy. The trial court observed Rondou's demeanor while he testified and read the interviews to the point Petitioner was Mirandized. This Court cannot properly revisit the state courts' credibility determination. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (federal habeas court has "no license to redetermine credibility of witnesses whose demeanor has been observed by the trial court, but not by them"); see also Lambert v. Blodgett, 393 F.3d 943, 976-78 & n.23 (9th Cir. 2004), cert. denied, 546 U.S. 963 (2005) (a federal court reviewing a state court conclusion on a mixed issue of fact and law, such as voluntariness of a confession, must separate legal conclusions from factual determinations and give full deference to findings of fact); Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (state court factual conclusions, such as whether police used threats or coercion, are entitled to presumption of correctness under 28 U.S.C. § 2254(d)).
Furthermore, Petitioner has not produced any "clear and convincing evidence" sufficient to rebut the presumption of correctness applicable to the state courts' deliberateness determination under 28 U.S.C. section 2254(e)(1). See Taylor v. Maddox, 366 F.3d at 999-1000 (once a state court's factfinding process survives intrinsic review under section 2254(d)(2), state court's findings are entitled to a presumption of correctness under section 2254(e)(1)).12
For the foregoing reasons, the state courts' rejection of Petitioner's claim that the trial court erred under Seibert in admitting evidence from Petitioner's second interview was not contrary to or an unreasonable application of clearly established Federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground One.
II. Petitioner's Claim that his Trial Counsel Rendered Ineffective Assistance Does Not Merit Habeas Relief.
Petitioner contends that his trial counsel was ineffective for allegedly failing to: (1) have the trial court review the transcripts from both of Petitioner's interviews, and (2) argue that the trial court should review the alleged deliberateness of the detectives' actions under the standards enunciated in Williams. See Pet. Mem., pp. 18-19, 33-42; Reply, pp. 8-10.
A. Governing Legal Principles
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 130 S.Ct. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.
B. Petitioner's Counsel Was Not Ineffective
Petitioner's counsel performed reasonably in connection with the suppression issues. With respect to the transcript issue, Petitioner's counsel did request that the trial court admit into evidence the combined transcripts from both interviews (R.T. 48). The trial court responded, "We have jurors coming in 10 minutes. It looks pretty thick." (R.T. 48). After some discussion, Petitioner's counsel asked for time to "regroup" to determine how best to proceed (R.T. 50). Later, the parties advised that they wanted the court to read the first interview, which was only 34 pages, and an initial page from the second interview leading up to the Miranda advisement, to assist in ruling on the motion in limine (R.T. 52-54; see also C.T. 477-511 (portions of interview transcripts)).
Counsel's request was not unreasonable. Given the trial court's comments regarding its limited time, Petitioner's counsel reasonably could have determined that any further request to have the trial court review the entirety of both interview transcripts would not have been successful. Rather than request again that the court review the transcript of the second interview, (which the parties had argued in their briefs was a recap of the first interview, as Petitioner continued to tell the officers the same story about what happened in greater detail (see C.T. 55, 64-65, 224-26 (briefing re same))), counsel presented to the court a portion of the second transcript showing that the officers told Petitioner they "again" would be going over "everything that happened." See C.T. 239 (excerpt). Counsel was not unreasonable for failing further to request that the trial court review the transcript in its entirety after the trial court had expressed its reluctance to do so. See Rupe v. Wood, 93 F.3d at 1445 ("the failure to take futile action can never be deficient performance"). Counsel's chosen strategy amply presented the Seibert issue to the trial court for determination.
Moreover, as the Court of Appeal reasonably found, Petitioner has not shown any reasonable probability that, had the trial court reviewed the entire transcript of the second interview or had the entire transcript been introduced into evidence, the trial court would have (or should have) ruled any differently on the deliberateness issue. The trial court clearly understood that objective evidence, such as the content of the second interview compared with the content of the first, was relevant to the trial court's consideration under Williams. Petitioner's counsel had argued, and the prosecution had acknowledged, that the content of both interviews overlapped and that Petitioner's story had remained the same. This circumstance and the other surrounding circumstances simply were not sufficient to persuade the trial court to find that the police had used a two-step interview deliberately in order to circumvent Miranda. The Court of Appeal reviewed the entire content of the second interview transcript and reasonably found that although the second transcript would have "more clearly demonstrated the overlapping content of the two interviews," the transcript was not necessary to a conclusion that the first interview was comprehensive and detailed — as relevant to the court's deliberateness determination. See Respondent's Lodgment 8, p. 22. Petitioner was not prejudiced by counsel's actions.
While Petitioner's counsel did not explicitly argue the Williams standards at the hearing before the trial court, there was no essential need for counsel to do so. At the hearing, the trial court quickly acknowledged that Williams instructed reviewing courts to consider objective evidence and any available subjective evidence in determining deliberateness. See R.T. 57 (trial court's comments). In finding no Seibert violation, the trial court explicitly noted that it found Williams "very persuasive" (R.T. 65). Moreover, counsel had argued in Petitioner's brief the objective factors relevant to the court's deliberateness determination. See C.T. 231-33 (arguing the facts in Petitioner's case concerning the completeness and detail of the questions in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second interview, the continuity of police personnel, and the degree to which interrogators treated the second round as continuous with the first). There is nothing in the record to suggest that had counsel argued the Williams factors differently the outcome would have been any different. The trial court clearly considered these factors but ultimately did not find the factors sufficiently persuasive in Petitioner's case to warrant a finding of deliberateness. On an even fuller record, the state appellate courts on collateral review reasonably reached the same conclusion.
For these reasons, Petitioner has failed to demonstrate that his counsel's performance was either unreasonable or prejudicial. The state courts' rejection of Petitioner's ineffectiveness claim was not "unreasonable" within the meaning of 28 U.S.C. section 2254(d). See Harrington v. Richter, 131 S. Ct. at 785-87.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.13
