CHARLENE H. SORRENTINO, Magistrate Judge.
Mays, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is his first degree murder conviction in the Sacramento County Superior Court, case number 05F01223, for which he is serving life in prison without the possibility of parole.
Mays was charged with the first degree murder of Sheppard Scott, with a special circumstance of lying-in-wait and an enhancement for personal discharge of a firearm causing death. The state court of appeal summarized the evidence adduced at trial:
People v. Mays, 174 Cal.App.4th 156, 159-63 (3rd Dist. 2009) (footnote omitted).
On this evidence, a jury convicted Mays of first degree murder with a lying-in-wait special circumstance and a personal firearm discharge enhancement. The trial court denied the defense motion for new trial. Mays's age (17) precluded the death penalty and the court sentenced him to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive term of 25 years to life for the gun enhancement.
Mays appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in a partially published opinion. A petition for review to the California Supreme Court was denied.
Mays asserts five grounds for relief:
For the reasons that follow, these grounds are without merit and the petition should be denied.
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
Prospective juror D.S. was a 39-year-old female who lived in midtown Sacramento. She worked for the Department of Social Services in the unit dealing with the Interstate Compact for Placement of Children and had previously worked for eight years as a toll collector and office technician. She was single and a high school graduate. Her father was a real estate broker and her mother was retired. Her brother-in-law was a correctional officer.
D.S. said that she did not participate in any political movement, organization, or advocacy group. She said she did not communicate with any inmates and had never served on a jury. She would neither believe nor disbelieve a witness until she heard their reasoning. She had no unpleasant past experiences with law enforcement. Her sister was a burglary victim, but that would not affect her judgment as a juror. She said she had no problem with peace officer credibility and could be a fair juror. Her hobbies were snowboarding, bowling, and watching basketball games.
When questioned by defense counsel, she said she had no problem listening to others and no problem debating others. When questioned by the prosecutor, she said she did not watch television programs about the criminal justice system but was thinking about starting. She said her judgment would not be affected by expectations from outside the courtroom, and she would have no problem returning a guilty verdict if the evidence warranted it.
When the prosecutor gave advance notice of an intent to exercise his third peremptory challenge to excuse D.S., the defense made a Batson/Wheeler motion. The court stated for the record that the venire had included three Black persons, one of whom had been excused for cause (both parties agreed he should be excused due to his stated memory difficulties). That left D.S. and one other Black person who was ultimately seated as a juror. The trial court found a prima facie case for Batson/Wheeler challenge, but ultimately denied the motion.
The Equal Protection Clause prohibits a prosecutor from exercising peremptory challenges to strike a venire person on the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986). People v. Wheeler is "the California counterpart to Batson" (Yee v. Duncan, 463 F.3d 893, 896 (9th Cir. 2006)); however, the standards of Batson control this court's disposition of the case. Lewis v. Lewis, 321 F.3d 824, 827 & n.5 (9th Cir. 2003).
When a defendant asserts that a prosecutor's peremptory challenge is racially-motivated, a trial court applies a three-step process to evaluate the Batson claim. See Hernandez v. New York, 500 U.S. 353, 367 (1991). First, the defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96-97. Once a prima facie case is established, the burden shifts to the state to articulate a race-neutral explanation for the challenge. Id. at 97. In the third and final step, the trial court must determine whether defendant has carried his ultimate burden of proving purposeful discrimination by evaluating the prosecutor's reasons and making a credibility determination. McClain, 217 F.3d at 1220 (quoting Hernandez, 500 U.S. at 359); see also Batson, 476 U.S. at 98.
Where, as here, the trial court ruled on the ultimate question of intentional discrimination, the preliminary question of whether the defendant made a prima facie showing is moot. See Collins v. Rice, 365 F.3d 667, 677 n.6 (9th Cir. 2004) (overruled on other grounds) (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)). Proceeding directly to the issue of intentional discrimination, therefore, the prosecutor in this case said he found several "red flags" in D.S.'s questionnaire: She had a social worker type of job, was single, and lived in midtown. Also, she wore a "peace symbol button." The prosecutor concluded D.S. was "left of center" politically, and he did not want her to sit on the jury.
In denying the Batson/Wheeler motion, the trial court stated the prosecutor had displayed honesty in the past, and his explanation
(Augmented Reporter's Transcript ("RT" at 297.) The state appellate court found no grounds for reversal. People v. Mays, No. C057099, unpublished slip op. at 18 (Cal. Ct. App. 3rd Dist June 5, 2009).
As with any credibility determination, the observations of the trial court are of significant importance. Batson, 476 U.S. at 98 n.21; Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province, and we have stated that in the absence of exceptional circumstances, we would defer to the trial court." (internal quotations and citations omitted)); see also Lewis, 321 F.3d at 830. "Evidence in the record of objective reasons to strike a juror implies that racial bias did not motivate the prosecutor." Boyd v. Newland, 393 F.3d 1008, 1013 (9th Cir. 1987). If, however, review of the record undermines the prosecutor's stated reasons, or many of the stated reasons, the explanation may be deemed a pretext. Lewis, 321 F.3d at 830-31.
The fact that a prosecutor's reasons are "founded on nothing more than a trial lawyer's instincts about a prospective juror" does not diminish the scope of acceptable invocation of peremptory challenges, so long as they are the actual reasons for the prosecutor's actions." United States v. Power, 881 F.2d 733, 740 (1989) (quoting United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989)). "Excluding jurors because of their profession, or because they were acquitted in a prior case, or because of a poor attitude in answer to voir dire questions is wholly within the prosecutor's prerogative." United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987).
Here, there is support in the record for the state court's conclusion that the prosecutor's peremptory challenge was not based on D.S.'s race. The prosecutor expressed reasonable bases for the use of the challenge, and the stated reasons were "clear and reasonably specific," (Purkett v. Elem, 514 U.S. 765, 768-69 (1995)), as well as race-neutral. There is no evidence of pretext.
The prosecutor's concern about D.S.'s "social worker type of job" falls within the well-settled rule that both occupation and interest or experience in social service or similar fields are permissible, non-discriminatory reasons for exercising peremptory challenges. See Messiah v. Duncan, 435 F.3d 186, 200 (2nd Cir. 2006) ("full-time social service provider... might have more sympathy for a defendant" than other panelists) Hall v. Luebbers, 341 F.3d 706, 713 (8th Cir. 2003) ("Occupation is a permissible reason to defend against a Batson challenge, and being a social worker could be a legitimate basis to strike a prospective juror."), cert. denied, 541 U.S. 996, 124 S.Ct. 2031, 158 L.Ed.2d 505 (2004); United States v. Smith, 223 F.3d 554, 569 (7th Cir. 2000) (prosecutor's stated reason to strike a potential juror because she was "a social worker type" who would be "too sympathetic towards the defendants" found non-racial); United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987) ("Excluding jurors because of their profession ... is wholly within the prosecutor's prerogative.").
It further appears that the prosecutor's inference regarding D.S.'s political views was a valid basis for peremptory challenge. The United States Supreme Court has observed that it is appropriate for a party to "use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side." Holland v. Illinois, 493 U.S. 474, 481 (1990). Use of peremptory challenges in this manner is a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury. Id. at 484 (internal quotation marks omitted) (quoting Batson, 476 U.S. at 91); see also United States v. Prince, 647 F.3d 1257, 1261, 1263 (10th Cir. 2011) (declining to extend Batson to prohibit exclusions of jurors based on political or ideological beliefs such as their views on legalization of marijuana); United States v. Villarreal, 963 F.2d 725, 729 (5th Cir. 1992) ("Political belief is not the overt and immutable characteristic that race is, and we decline to extend the Batson line of cases to this case.").
Mays attacks the prosecutor's other stated reasons that D.S. was a single 39-year old woman and that she lived in midtown. While these additional pieces of information might not add meaningfully to a conclusion that D.S. was a social worker type who was left of center politically, they were nevertheless race neutral factors. When evaluating a prosecutor's stated reasons, a reviewing court may look at the record surrounding the disputed peremptory challenge cumulatively. See Miller-El v. Dretke, 545 U.S. 231, 265 (2005). Thus, as the state appellate court explained in this case,
People v. Mays, No. C057099, unpublished slip op. at 15.
Where, as here, no indication of pretext is apparent, comparative juror analysis can be a useful tool to evaluating the plausibility of a prosecutor's stated reasons in light of all the evidence. See Miller-El, 545 U.S. at 241 n.2; see also Kesser v. Cambra, 465 F.3d 351, 361 (9th Cir. 2006) ("in Miller-El, the [Supreme] Court made clear that the comparative analysis is required even when it was not requested or attempted in state court"). In this case, the state appellate court employed comparative juror analysis and found that no other prospective jurors were similarly situated to D.S.:
People v. Mays, No. C057099, unpublished slip op. 17-18. The state court further noted the prosecutor also used a peremptory challenge to excuse G.M., a non-Black potential juror who worked as a youth counselor and caseworker specialist for the Youth Authority. People v. Mays, No. C057099, unpublished slip op. at 14.
The state court's determination that no other panel members were similarly situated to D.S. was consistent with Supreme Court precedent and based on a reasonable determination of facts in the record. Mays fails to rebut the presumption of correctness of the state court's factual finding that the prosecutor in this case did not have discriminatory intent. See 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 341-41 (2006) (Even where "reasonable minds reviewing the record might disagree about the prosecutor's credibility, [ ] on habeas review that does not suffice to supercede the trial court's credibility determination."). For all the reasons discussed, rejection of this claim was not contrary to, or an unreasonable application of clearly established Supreme Court precedent.
As set forth, the prosecution moved to conduct a conditional examination of witness Schallenberg. The trial court held a hearing pursuant to section 402 of the California Evidence code in which a second-year psychiatry resident, Dr. Julie Young, testified Schallenberg has panic disorder and agoraphobia, causing sudden onsets of shortness of breath, chest pain, dizziness, and extreme fear. Her panic attacks can cause asthma attacks and in the past have caused her to pass out. The doctor opined there should be as few people as possible in the room if Schallenberg were to testify. In opposition, the defense put on evidence that Schallenberg previously had two meetings with the prosecution's investigator in a windowless room without suffering a panic attack. She also exhibited no signs of distress or shyness when she was questioned at her home. At one point she fetched what appeared to be an asthma inhaler but did not use it.
Over the defense's objection that Shallenberg's condition did not warrant a conditional examination, the trial court granted the motion and held a videotaped conditional examination of Schallenberg in a courtroom, with Mays, counsel, and the judge present, but excluding the jurors and the public. Shallenberg was subject to cross-examination by defense counsel.
After the conditional examination, the court found Schallenberg unavailable to testify at trial. The court stated on the record observations that Schallenberg was visibly trembling and shaking at various points during the protracted amount of time it took for her to adjust to the room and during the first few minutes of her testimony. (Her demeanor while adjusting to the room was not videotaped.) She displayed breathing difficulty and twice used her inhaler, which seemed to help. After a while, she seemed fine and was even "feisty" in her answers. The court said it had intended to do a "supplementary voir dire" before beginning her testimony, in order to determine whether or not she could testify in front of the jury, but based on the observations of the witness and the doctor's opinion, the court concluded it was not necessary and may have jeopardized getting the conditional examination. The court said the witness's ability to give "feisty" answers did not change the ruling because the ruling was based on the court's concern that she would suffer an attack and go into rapid breathing and pass out. Her ability to handle the conditional examination was credited in part to the measures taken, such as keeping to a minimum the number of people in the courtroom.
The videotape of Schallenberg's conditional testimony was played for the jury in open court. Mays claims this manner of presentation violated his Sixth Amendment right to a public trial as well as his due process rights under the Fifth and Fourteenth Amendments. He also contends state law prohibited conditional examination testimony in his case.
On appeal, the state court found no error in the trial court's use of Schallenberg's conditional examination testimony; this determination of state law is not reviewable here. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Mays further contends the state's failure to meet its own statutory requirements violated his procedural and substantive due process rights. This conclusory assertion, unsupported by further allegation, also fails. See Brown v. Allen, 344 U.S. 443, 458, n.6 (1953) (allegations of fact, rather than conclusory assertions, are required) (overruled on other grounds in Townsend v. Sain, 372 U.S. 293 (1963)); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (a petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process").
The Sixth Amendment guarantees a defendant the right to a public trial (Presley v. Georgia, 130 S.Ct. 721 (2010); Waller v. Georgia, 467 U.S. 39, 48, 49 n.9 (1984)), applicable to the states through the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273 (1948). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions...." Waller, 467 U.S. at 46 (internal quotations and citations omitted). For this reason, before totally closing any part of a trial to the public,
Presley, 130 S.Ct. at 724 (quoting Waller, 467 U.S. at 48); see also Press Enterprise v. Superior Court of Cal., 464 U.S. 501, 510-11 (1984); but see United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir. 1992) (holding that partial closures are subject to less stringent requirements than set forth in Waller). Because a violation of the right to a public trial is structural error, no specific prejudice need be shown in the case of a total closure. See Waller, 467 U.S. at 49-50. The right to a public trial is not absolute, however, and must give way in some cases to other interests essential to the fair administration of justice. See Id. at 45.
Although Supreme Court precedent provides the only relevant source of clearly established federal law for AEDPA purposes, circuit precedent can be "persuasive authority for purposes of determining whether particular state court decision is an `unreasonable application' of Supreme court law," and in ascertaining "what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). The Second Circuit has held that an unjustified closure that does not undermine the values furthered by the public trial guarantee does not violate the Sixth Amendment. Peterson v. Williams, 85 F.3d 39, 42-43 (2nd Cir. 1996). Several other circuits have relied on Peterson to determine whether a closure implicates an accused's right to a public trial. See, e.g., Braun v. Powell, 227 F.3d 908, 919 (7th cir. 2000); (applying Peterson to hold that the exclusion of a single excused juror from the trial did not implicate the right to a public trial); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994) (applying Peterson to hold that the brief and inadvertent closure of the courtroom did not implicate the Sixth Amendment). The Ninth Circuit has applied Peterson to hold that a trivial closure of routine jury administrative matters does not violate the Sixth Amendment where the closure does not "involve[ ] the values that the right to a public trial serves[.]" United States v. Ivester, 316 F.3d 955 (9th Cir. 2003) (citing Peterson, 85 F.3d at 43 and Waller, 467 U.S. at 46-47).
In this case, as to Mays's contention that the conditional examination violated his federal right to a public trial, the state court held:
People v. Mays, No. C057099, unpublished slip op. at 54.
Mays fails to identify any authority demonstrating that rejection of his claim in this manner was contrary to or an unreasonable application of Waller or other clearly established Supreme Court precedent. Even assuming, for the sake of argument, that Schallenberg's conditional examination constituted at least a partial closure, it was too trivial to implicate the Sixth Amendment. The conditional examination was relatively brief in duration. See Ivester, 316 F.3d at 960 ("very brief" closure to question jurors found too trivial to implicate the Sixth Amendment); Peterson, 85 F.3d at 43 (20 minute closure found too trivial). It was also limited to the testimony of a single witness. The conditional examination was taken because of the court's stated concern for the witness's health and also to ensure the witness's testimony could be received at trial where the court did not believe that the witness would otherwise be able to testify. Significantly, Schallenberg's conditional examination was recorded and played for the jury in open court, with no exclusion of the public.
Any partial closure, if there was one, was for a "substantial reason" and was narrowly tailored to satisfy the purposes for which the exclusion was ordered. Sherlock, 962 F.2d at 1356-57 (partial closure justified to protect victim witness who was apprehensive of testifying before the defendant's family); United States v. Eisner, 533 F.2d 987, 993-94 (6th Cir.), cert. denied, 429 U.S. 919 (1976) (partial closure justified to protect witness with fear of testifying in public). No relief is available.
Over Mays's objection, the trial court admitted statements he made to law enforcement after they allegedly failed to honor his request for counsel. Mays claims a violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Mays was interviewed by Detective Husted on February 9, 2005 regarding the AM/PM murder. Husted read Mays his Miranda rights and proceeded to interrogate him.
Mays said he understood he was in custody for the victim's murder, but he had nothing to do with it and was not present. Husted said witnesses had identified him. Mays denied being the person depicted in the photo from the AM/PM video and said he did not own a similarly-colored gray sweatshirt. Husted left the room and returned with a photo which Mays admitted was him. Husted said the second photo was merely a photocopy of the photo, darkened to make the sweatshirt look darker. Husted told Mays to stop lying. Mays asked for a lie detector test, which he guaranteed he would pass "a hundred percent." Husted expressed doubt. The following exchange ensued:
(CT at 2784-2787.) Mays continued to answer questions, denying involvement or presence at the crime scene. Husted left the room at one point and then returned.
(CT at 2800-01.) An examiner purported to administer a polygraph and told Mays that he failed. Mays then made various incriminating statements including that he was present at the scene of the murder.
After considering the taped interview in conjunction with the transcript during pretrial proceedings, the trial court gave its ruling and reasoning for admitting Mays's statements:
(RT at 240-41.) The trial court noted that Husted continued to attempt to "clarify" what Mays wanted and that Mays's responses were "inconsistent with the invocation by behavior." (RT at 242.) Relying on Husted's repeated attempts to clarify Mays's wishes and Mays's responses, the trial court ultimately concluded:
(RT at 243-44.)
On appeal, the state court held, first, that Mays's request for counsel was equivocal. The state appellate court found May's question, to be "analytically indistinguishable from the request for counsel made in [People v.] Roquemore," in which the second district of the California Court of Appeal found the statement "Can I call a lawyer or my mom to talk to you?" to be equivocal. People v. Mays, No. C057099, unpublished slip op. at 29. The state court further held:
People v. Mays, No. C057099, unpublished slip op. at 30. The state appellate concluded: "[c]onsidering all circumstances, we agree with the trial court that there was no Miranda violation." People v. Mays, No. C057099, unpublished slip op. at 31.
When a person in custody is subjected to interrogation, he must first be read his Miranda rights in order for the information obtained to be admissible in court. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). "Statements elicited in noncompliance with this rule may not be admitted for certain purposes in criminal trial." Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam).
Police are not required to obtain an express waiver of Miranda rights before proceeding with interrogation. North Carolina v. Butler, 441 U.S. 369, 373 (1979) (holding that courts can infer a waiver of Miranda rights "from the actions and words of the person interrogated"). If at any point during an interrogation a suspect invokes his right to counsel, however, all questioning must cease and may not resume in the absence of counsel unless the suspect himself waives the right by initiating further discussions. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Smith v. Illinois, 469 U.S. 91, 95 (1984).
Whether the accused has invoked his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452, 459 (1994). "A suspect must unambiguously request counsel." Id. He must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. At a minimum,
Id. (internal quotations and citations omitted). Utterances which include the words "might," "maybe," or "perhaps" are generally deemed ambiguous. E.g., Davis, 512 U.S. at 455 ("Maybe I should talk to a lawyer" held ambiguous); United States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005). If a request is ambiguous or equivocal police may, but are not required, to ask clarifying questions. Davis, 512 U.S. at 461-62; see also Connecticut v. Barrett, 479 U.S. 523, 534 ("[C]ircumstances may clarify an otherwise ambiguous [invocation].") (Brennan, J., concurring in judgment).
"[A] statement either is such an assertion of the right to counsel or it is not." Davis, 512 U.S. at 459 (quoting Smith, 469 U.S. at 97-98). For this reason, an accused's postrequest reponses to further police questioning cannot be used to cast doubt on the clarity of the initial request. Smith, 469 U.S. 91, 100 (1984) (explaining that subsequent statements are relevant only to the question whether the accused has waived the right he invoked).
Under Smith, it is irrelevant whether further police questioning seeks "clarifying" or "material" information. Smith, 469 U.S. at 98 ("Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.") (emphasis added). In Smith, the officer simply continued giving the suspect his Miranda rights and those continued questions were found to constitute impermissible "police-initiated custodial interrogation." Id. at 98.
In this case, therefore, if either or both of Mays's statements ["can I call my dad so I can have a lawyer come down...." or "can — can you call him and have my lawyer come down here?"] were an unequivocal request for counsel, then his subsequent statements returning to his theme of wanting take a lie detector test cannot be used to cast doubt on the clarity of his original request because the latter statements were made in response to clarifying questions by Husted.
As explained in Justice O'Connor's opinion for the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412-13 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts prior Supreme Court holdings. Whether the state court's decision in this case applied a legal rule contradictory to the holding of Smith hinges on whether Mays's made a request for counsel that was clear and unambiguous. This is because the holding of Smith was premised on the unambiguous assertion of the right to counsel: the Court emphasized its decision was "narrow" and did not address "the circumstances in which an accused's request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself," or the consequences of such ambiguity or equivocation. Smith, 469 U.S. at 99-100. Thus the issue is whether a reasonable argument exists that Mays's alleged request for counsel was "merely" a question or was otherwise ambiguous due to any preceding statements or nuances in the request itself, or whether it was a clear, unequivocal request for counsel. If Mays made a clear, unequivocal request for counsel, the state court's holding that his subsequent statements and the totality of circumstances rendered the request equivocal was contradictory to the holding of Smith.
The Ninth Circuit recently upheld as a reasonable application of clearly established Supreme Court precedent a state court's finding that a suspect's pre-Miranda waiver question whether he was entitled to a lawyer was not an actual invocation of the right to counsel. Sessoms v. Runnels, 650 F.3d 1276, 1288 (2011). In so holding, the Sessoms court noted:
Id. at 1288.
Sessoms, however, is distinguishable because there the accused asked whether he was entitled to a lawyer before he was advised of his Miranda right to that effect; in contrast, Mays had been advised of his Miranda rights and had given an implied waiver of those rights by continuing to talk to Husted. See Butler, 441 U.S. at 373 (suspect can implicitly waive Miranda rights). The standard of Davis that a suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney applies only to post-waiver requests. See Sessoms, 650 F.3d at 1283 (citing Davis, 512 U.S. at 460-61). The Sessoms court therefore applied as the relevant clearly established law the standard of Edwards that an accused must "actually invoke[ ] his right to counsel" (Edwards, 451 U.S. at 485), making the petitioner's burden in that case "that much more difficult." Sessoms, 650 U.S. at 1285.
This case is also different from Sessoms because it is undisputed that Husted read Mays his Miranda rights at the beginning of the interview in question and Mays indicated that he understood those rights. Thus a reasonable officer in Husted's position had no occasion to believe that Mays was actually unaware whether he could invoke his right to counsel such that his statements ["can I call my dad so I can have a lawyer come down...." or "can — can you call him and have my lawyer come down here?"] could be interpreted "merely" as questions. Nor were the statements otherwise ambiguous. See Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (three questions: "(1) Can I get an attorney right now, man?; (2) You can have attorney right now?; and (3) Well, like right now you got one?" constituted an unambiguous request for counsel because although phrased as questions, it was clear the suspect wanted an attorney "right now"); Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988) ("Can I talk to a lawyer" was clear invocation of the right to counsel); United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005) ("can I have a lawyer" and "could I get a lawyer" held unambiguous).
Here, Mays's statements "can I call my dad so I can have a lawyer come down," and further, "can — can you call him and have my lawyer come down here," should have both been "reasonably construed as an expression of a desire for the assistance of an attorney," and "a reasonable police officer in the circumstances would [have understood] the statement to be a request for an attorney." See McNeil v. Wisconsin, 501 U.S. 171, 178 (1991); Davis, 512 U.S. at 459. No "events preceding the request or [ ] nuances inherent in the request itself" made either of Mays's statements requesting counsel ambiguous. Smith, 469 U.S. at 100. Rather, he clearly asked Husted twice to call his step-dad for the purpose of having his lawyer "come down here." (CT at 2784-85.) When Husted asked Mays "Who's your lawyer?", Mays responded "my step-dad got a lawyer for me." Husted followed this up with "Okay. So what do you want to do with him?" Mays responded "I'm going to — can — can you call him and have my lawyer come down here?" These words were clear and understandable on the videotape.
Based on a viewing of the videotape and the words used, it is apparent that Mays made not one, but two unambiguous requests for counsel which were clear and understandable. His immediate and subsequent demands to take a lie detector test "may not be used to cast retrospective doubt on the clarity of [his] initial request." Smith, 469 U.S. at 100. Under Smith, it is irrelevant that, as the state court found, "less than a second occurs between [Mays]'s statement ["can you call [him] and have my lawyer come down here?"] and [Mays]'s next statement, "I'm telling you — I'm telling you this is not me." People v. Mays, No. C057099, unpublished slip op. at 22. It is further irrelevant that "[p]erhaps another second occurs between that statement of [Mays] and his next question, "Can you give me a lie detector test?" People v. Mays, No. C057099, unpublished slip op. at 22. Since Mays made an unequivocal request for counsel, Husted was obligated to cease all questioning, including questioning for "clarification" purposes. Smith, 469 U.S. at 98. When the state court relied on Mays's responses to Husted's "clarifying" inquiries and Mays's repeated demands for a lie detector test to render his request for counsel ambiguous or equivocal under the totality of circumstances, that was contrary to the holding of clearly established Supreme Court precedent. See Smith, 469 U.S. at 100; Fare v. Michael C., 442 U.S. 707, 719 (1979) (discussing the "rigid rule" that "an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease").
Regardless of whether Mays's statements should have been suppressed, however, the state court's rejection of the claim should stand because the state court's finding of no prejudice is a reasonable application of clearly established Supreme Court precedent. The state appellate court set forth a lengthy analysis rejecting Mays claim of prejudice:
People v. Mays, No. C057099, unpublished slip op. at 31-35. The state appellate court went on to address and reject Mays's argument, premised on state law, that the erroneous admission of statements obtained in violation of Miranda compelled his trial testimony. The state appellate court concluded that, assuming a Miranda violation occurred, it was harmless beyond a reasonable doubt." People v. Mays, No. C057099, unpublished slip op. at 39.
Granting a writ of habeas corpus for Miranda error is only required if the error was not harmless. See Arizona v. Fulminante, 499 U.S. 279, 292 (1991) (noting that the Courts of Appeals have uniformly held Miranda violations are subject to treatment as harmless error) see also Ghent v. Woodford, 279 F.3d 1121, 1126 (9th Cir. 2002). The rule of Chapman v. California, 386 U.S. 18, 24 (1967), applies; constitutional errors that are harmless beyond a reasonable doubt do not justify reversing a conviction. On habeas corpus review, a federal court must additionally assess the prejudicial impact of constitutional error in a state court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). Fry v. Pliler, 551 U.S. 112 (2007). The relevant question is whether the Miranda violation "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (internal quotation marks and citation omitted). Thus, in order to grant habeas corpus relief where a state court has determined that a constitutional error was harmless, a reviewing court must determine: (1) that the state court's decision was contrary to or an unreasonable application of Supreme Court harmless error precedent, and (2) that the petitioner suffered prejudice under Brecht from the constitutional error. Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005). Both of these tests must be satisfied before relief can be granted. Id.
As the state court discussed, Mays testified at trial that he was neither present during the shooting nor involved in it. His statement to the contrary that he was present at the scene wearing the gray hooded sweatshirt was admitted, as well as his statement that he knew police had not recovered the weapon. Although these statements were injurious to Mays's defense, they did not have a substantial effect on the verdict since there was other strong evidence that he was present at the scene of the crime, including "(1) Schallengberg's positive identification of [Mays] as the gray-shirted person in the AM/PM surveillance photo, [ ] (2) [Mays]'s statements to Schallenberg about his presence at the crime scene" (People v. Mays, No. C057099, unpublished slip op. at 35), and, to a lesser extent, identification by the other eyewitnesses.
In particular, Schallenberg testified that Mays told her he was present at the time of the shooting. (RT at 903.) When police showed Schallenberg a picture from the surveillance video she identified him as the individual in the gray sweatshirt. (RT at 1020-22.) Schallenberg was well acquainted with Mays and was not at all uncertain in her initial identification. That she later tried to recant the identification when she realized its effect on Mays, whom she considered to be like a son, does not diminish the impact of her original statement. On this record, Mays fails to demonstrate that the state court's finding of no prejudice was an unreasonable application of the Chapman standard. No relief is available.
After Mays's asked for and agreed to take the polygraph, Husted left the room, returned, asked more questions, brought in Mays's girlfriend and left the room while they talked. Husted returned. Mays asked to make a phone call. Husted said he would try to set up a phone, then changed the subject to getting the girlfriend home and left the room with the girlfriend.
A purported examiner administered a fake polygraph to Mays and showed him a graph of fabricated written results which the examiner said showed he was lying about not being involved. (Clerk's Transcript ("CT") at 2832-93.) Husted then continued to interrogate Mays. When Mays expressed disbelief that he had failed the polygraph, Husted suggested that maybe Mays had seen the crime and felt guilty about lying about his presence. As discussed, Mays then admitted he was present and that he was the person in the gray sweatshirt depicted in the AM/PM surveillance tape. Mays said he witnessed the shooting, which was committed by the person wearing orange whom he had met that night while smoking marijuana. Mays said he did not know the shooter's name or motive. Mays said had withheld this information because the shooter had made threats and knew where his family lived. (CT at 2877-2892.)
When Husted revealed that three witnesses said the shooter was the person dressed in gray, not orange, Mays insisted he did not shoot the victim, repeatedly asked to talk to his mother, and broke down crying. He said he wanted to say goodbye to his mother and kill himself. He continued to emphatically deny having shot the victim. The interrogation ended when Mays complained of chest pains and said he was born with a hole in his heart.
Mays claims his incriminating statements were coerced by the fake polygraph test and the fabricated documentary results. In the published portion of the decision on appeal, the state court examined the circumstances of the fake polygraph and found no grounds for reversal. People v. Mays, 174 Cal. App. 4th at 166-69.
The United States Constitution demands that confessions be made voluntarily in order to be admissible at trial. Lego v. Twomey, 404 U.S. 477, 478 (1972). A confession is voluntary if it is "the product of a rational intellect and a free will." Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)); see also Blackburn v. Alabama, 361 U.S. 199, 208 (1960). The test for voluntariness, however, is not a simple question of whether the suspect spoke of free will. Rather, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Under some circumstances, misrepresentations by police can render a confession invalid. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (confession coerced by officers' false statements that state financial aid for defendant's infant children would be cut off and her children taken from her if she did not cooperate); Spano v. New York, 360 U.S. 315, 323 (1959) (confession coerced where police instructed a friend of the accused to falsely state that petitioner's telephone call had gotten him into trouble, that his job was in jeopardy and that loss of his job would be disastrous to his three children, his wife, and his unborn child). However, "misrepresentations made by law enforcement in obtaining a statement, while reprehensible, does not necessarily constitute coercive conduct [sic]." Pollard v. Galaza, 290 F.3d 1030, 1034 (9th Cir. 2002). The fact that police engaged in trickery or misrepresentations, while relevant to the determination of admissibility, is insufficient on its own to render an otherwise voluntary confession inadmissible. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (confession admissible even though officer falsely told the suspect his accomplice had been captured and confessed); Amaya-Ruiz v. Stewart, 121 F.3d 486, 495 (9th Cir. 1997) (suspect falsely told he had been identified by an eyewitness).
Rather, a "totality of circumstances" test applies. Frazier, 394 U.S. at 739; Winthrow v. Williams, 507 U.S. 680, 711-12 (1993). The relevant question is whether it appears, by preponderance of the evidence, that petitioner's statements were the result of his will being overborne by coercive police conduct. Arizona v. Fulminante, 499 U.S. 279, 288 (1991) (whether suspect's statement is "the product of coercion" by law enforcement depends on whether his "will was overborne"); Connelly, 479 U.S. at 168 (reaffirming that "the voluntariness of a confession need only be established by a preponderance of the evidence"). Relevant factors to consider may include the youth of the accused, lack of education, low intelligence, lack of advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment such as deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also Yarborough v. Alvarado, 541 U.S. 652, 668 (2004).
Here, the state court reasoned, in part:
People v. Mays, 174 Cal. App.4th at 166-168 (some citations omitted).
Mays fails to demonstrate that the state court's finding of voluntariness was contrary to, or an unreasonable application of clearly established Supreme Court precedent. To the extent he argues it was the nature of the polygraph being fake that was coercive, the argument fails. As set forth, misrepresentations and trickery by the police are permissible under clearly established Supreme Court precedent and are only one factor of the totality of circumstances to be considered. Frazier, 394 U.S. at 739; Schneckloth, 412 U.S. 218. Considering the other factors, although Mays, at 17 years old, was relatively young, there is no evidence he lacked education or intelligence. He had been advised of his constitutional rights, which is "quite relevant to a finding of voluntariness." Frazier v. Cupp, 394 U.S. at 739 (1969) (citing Davis v. North Carolina, 384 U.S. 737, 740-41 (1966)). Finally, Mays was not deprived of food, sleep, or otherwise physically punished, and nothing about the length of detention or nature of questioning supports a finding of coercion. Under the circumstances of this case, use of a fake polygraph was not inherently coercive, and the state court's rejection of this claim was not contrary to, or an unreasonable application of clearly established Supreme Court precedent.
In a motion for a new trial, Mays asserted that the prosecution committed Brady error (see Brady v. Maryland, 373 U.S. 83 (1963)) by failing for more than a year to disclose to the defense a taped statement and report of police interviews with John Harris, a jail inmate. Harris allegedly implicated another person, Marcos Adams, in the AM/PM murder case. Police Detective Thomas Higgins reported the conversation to the prosecutor in Harris's case, but word did not reach the prosecutor in Mays's case. The information was not shared with Mays's defense until July 2007 (after his jury returned the guilty verdict in May 2007).
A hearing was held on the new trial motion, with live testimony later summarized by the court of appeal as follows:
People v. Mays, No. C057099, unpublished slip op. at 56-57.
Following argument by counsel, the trial court denied the motion for a new trial. In recognition of the closeness of the matter, the trial court detailed the facts supporting its reasoning. On appeal, the court summarized the trial court's findings and reasoning:
People v. Mays, No. C057099, unpublished slip op. at 58-59.
In Brady v. Maryland, the United States Supreme Court held that the suppression before trial of requested evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. 83 (1963). In the Brady context, "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). The relevant question is whether, without the information, the petitioner received a fair trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). The proper focus is whether the net effect of the undisclosed evidence undermined the outcome of the trial. Id. at 421, 436-37.
Here, Adams's alleged statements to Harris, as reported by Harris to detective Higgins, were not exculpatory for Mays. Evidence that Adams and a friend, both in black sweatshirts, ran up to Harris on the evening in question and asked for a getaway ride saying they had "handled business" or "got into it with some rickets" at "Jack In the Crack" does not undermine confidence in the verdict against Mays. This is especially true where Adams admitted to Mays's defense investigator that he (Adams) was the person in the orange jacket on the video tape. As the state court held, this evidence would likely have been seen by the jury to inculpate Mays to the extent it placed Adams at the scene as the accomplice, leaving Mays as the likely shooter. Although Adams told Mays's defense investigator that the shooter was someone named "Jon Jon," there was substantial evidence as discussed elsewhere herein that Mays was the person wearing the gray sweatshirt in the AM/PM surveillance tape that night.
On this record, there is no reasonable probability that the result of the proceeding would have been any different had Harris's statements to Higgins been made available to the defense. Cf. United States v. Sarno, 73 F.3d 1470, 1506-07 (9th Cir. 1995) (undisclosed evidence "tugs at loose threads hanging from the margins of the Government's case, but in no way challenges the bulk of the evidence on which the convictions rest"). The state court's rejection of Mays's Brady claim for lack of prejudice was consistent with, and a reasonable application of clearly established Supreme Court precedent.
Moreover, the state court made an explicit factual finding to which this court is bound (see 28 U.S.C. §§2254(e)(1)) that the defense was aware of evidence implicating Adams as a participant to the crime before trial. In this regard, Mays's brother had named Adams as a potential suspect, causing the defense investigator to interview Adams three months prior to trial at which time Adams admitted he was at the scene wearing the orange jacket. Since suppression by the government is a necessary element of a Brady claim (Moore v. Illinois, 408 U.S. 786, 794-95 (1972)), the Ninth Circuit has explained:
United States v. Dupuy, 760 F.2d 1492, 1502 n.5 (9th Cir. 1985); see also Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) ("There is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available ... from another source...." (internal quotation marks omitted)); United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997) ("Brady does not obligate the government to produce for [a defendant] evidence or information already known to him, or that he could have obtained from other sources by exercising reasonable diligence." (internal quotation marks omitted)); United States v. Torres, 129 F.3d 710, 717 (2nd Cir. 1997) ("It is well settled that evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known of the essential facts permitting him to take advantage of [that] evidence." (internal quotation marks omitted)). In this regard, witnesses of whom the defense is aware and to whom the defense "had as much access as the police" are not under the sole control of the government and therefore are not improperly kept from the defense in the Brady context. See Coe, 161 F.3d at 344. No relief is available.
For the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons discussed, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven days after service of the objections.