Rainey v. Knowles, No. 4:2007cv00678 - Document 22 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 9/2/08. (scc, COURT STAFF) (Filed on 9/2/2008)
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Rainey v. Knowles Doc. 22 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 No. C 07-00678 CW CLYDE J. RAINEY, 5 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Plaintiff, 6 v. 7 MIKE KNOWLES, Warden, 8 Defendant. 9 / United States District Court For the Northern District of California 10 Petitioner Clyde J. Rainey, a state prisoner incarcerated at 11 Kern Valley State Prison, petitions the Court for a writ of habeas 12 corpus pursuant to 28 U.S.C. § 2254. Respondent Mike Knowles 13 opposes the petition. Having considered all of the papers filed by 14 the parties, the Court DENIES the petition. 15 BACKGROUND 16 I. Procedural History 17 On May 7, 1998, the district attorney filed an information in 18 Contra County superior court charging Petitioner with the murder of 19 twenty-year old Koupou Saechao. The information alleged that 20 Petitioner personally used a firearm and committed the murder while 21 he was engaged in or was an accomplice in the commission or 22 attempted commission of robbery. On May 4, 1999, after a seven day 23 trial, a jury found Petitioner guilty of first degree murder and 24 found the enhancement allegations to be true. On August 13, 1999, 25 the trial court sentenced Petitioner to a term of life without 26 possibility of parole, plus four years. On February 7, 2001, the 27 California court of appeal, in an unpublished opinion, affirmed the 28 Dockets.Justia.com 1 judgment. 2 without comment a petition for review. 3 sought a writ of habeas corpus in the Contra Costa County superior 4 court. 5 opinion, denied the petition. 6 California Supreme Court denied the petition without comment. United States District Court For the Northern District of California 7 On May 16, 2001, the California Supreme Court denied In March, 2001, Petitioner On March 28, 2005, the superior court, in a written The California appellate court and On February 1, 2007, Petitioner filed his federal petition for 8 writ of habeas corpus, making the following claims: (1) the trial 9 court’s failure to order a competency evaluation violated his right 10 to due process under the Fourteenth Amendment; (2) the admission of 11 his confession violated his right to due process under the 12 Fourteenth Amendment; (3) the failure to suppress his confession 13 violated Miranda v. Arizona because his waiver was not voluntary or 14 knowing and intelligent; (4) the admission of the video tape of his 15 conversation with his mother violated his right to privacy under 16 the Fourth Amendment;1 and (5) the suppression of exculpatory 17 evidence violated Brady v. Maryland. 18 II. Factual History 19 The following facts were found by the California court of 20 appeal. 21 shot twice in the back in front of his aunt’s apartment building in 22 North Richmond. 23 collapsed in her arms and said a “black guy” shot him. On October 31, 1996, twenty-year old Koupou Saechao was Saechao came to the door to his aunt’s apartment, He died 24 25 26 27 28 1 Citing Stone v. Powell, 428 U.S. 465 (1976), Respondent argues that this claim is not cognizable on federal habeas review. Stone held that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, it is not cognizable on habeas review. Id. at 494. Petitioner does not respond to this argument in his traverse. Therefore, the Court concludes he has conceded it and does not address it further. 2 1 four days later. 2 Petitioner, who is African American and was sixteen years old. 3 Petitioner first denied any involvement in the shooting, then said 4 that he and fourteen-year old Donald C. tried to rob Saechao and 5 that Donald shot Saechao when they found he had nothing for them to 6 steal. 7 Petitioner confessed to the police that he shot Saechao. 8 United States District Court For the Northern District of California 9 On November 6, 1996, the police arrested After talking with his mother at the police station, When being questioned by the police, Petitioner denied being a member of a gang or participating in the shooting as a gang 10 initiation. 11 guilty of manslaughter because he shot Saechao as part of a gang 12 initiation, not a robbery, and he suffers from developmental 13 limitations that impede his ability to premeditate. At trial, Petitioner’s defense was that he was only 14 15 LEGAL STANDARD A federal court may entertain a habeas petition from a state 16 prisoner "only on the ground that he is in custody in violation of 17 the Constitution or laws or treaties of the United States." 18 U.S.C. § 2254(a). 19 Penalty Act (AEDPA), a district court may not grant a petition 20 challenging a state conviction or sentence on the basis of a claim 21 that was reviewed on the merits in state court unless the state 22 court’s adjudication of the claim: "(1) resulted in a decision that 23 was contrary to, or involved an unreasonable application of, 24 clearly established federal law, as determined by the Supreme Court 25 of the United States; or (2) resulted in a decision that was based 26 on an unreasonable determination of the facts in light of the 27 evidence presented in the State court proceeding." 28 § 2254(d). 28 Under the Antiterrorism and Effective Death 28 U.S.C. A decision is contrary to clearly established federal 3 1 law if it fails to apply the correct controlling authority, or if 2 it applies the controlling authority to a case involving facts 3 materially indistinguishable from those in a controlling case, but 4 nonetheless reaches a different result. 5 1062, 1067 (9th Cir. 2003). 6 An unreasonable determination of the facts occurs where the 7 state court fails to consider and weigh highly probative, relevant 8 evidence, central to the petitioner’s claim, that was properly 9 presented and made part of the state court record. 10 United States District Court For the Northern District of California Clark v. Murphy, 331 F.3d Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). 11 Even if the state court's ruling is contrary to or an 12 unreasonable application of Supreme Court precedent, that error 13 justifies habeas relief only if the error resulted in "actual 14 prejudice." 15 other words, habeas relief may be granted only if the 16 constitutional error at issue had a "substantial and injurious 17 effect or influence in determining the jury's verdict." 18 638. 19 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In Id. at The only definitive source of clearly established federal law 20 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 21 of the time of the relevant state court decision. 22 Taylor, 529 U.S. 362, 412 (2000). 23 Williams v. To determine whether the state court’s decision is contrary 24 to, or involved an unreasonable application of, clearly established 25 law, a federal court looks to the decision of the highest state 26 court that addressed the merits of a petitioner’s claim in a 27 reasoned decision. 28 Cir. 2000). LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th If the state court only considered state law, the 4 1 federal court must ask whether state law, as explained by the state 2 court, is "contrary to" clearly established governing federal law. 3 Lockhart v. Terhune, 250 F.3d 1223, 1230 4 5 United States District Court For the Northern District of California 6 (9th Cir. 2001). DISCUSSION I. Competency Claim Petitioner argues that the trial court violated his due 7 process rights by failing to order a competency hearing because 8 there was substantial evidence that he was not competent to stand 9 trial. 10 A. State Appellate Court Opinion 11 The state appellate court relied upon California law which 12 provides that a mentally incompetent person cannot be tried and 13 defines mental incompetence as the inability to understand the 14 nature of the criminal proceedings or to assist counsel in the 15 conduct of a defense in a rational manner. 16 Code § 1367(a); People v. Hayes, 21 Cal. 4th 1211, 1281 (1999). 17 Under California law, when a trial court becomes aware of 18 substantial evidence which generates a doubt about whether the 19 defendant is competent to stand trial, the court must, on its own 20 motion, declare the doubt and suspend proceedings to hold a 21 competency hearing. 22 1415 (2000). See California Penal See People v. Castro, 78 Cal. App. 4th 1402, 23 The state court analyzed Petitioner’s claim as follows: 24 At trial, defense counsel never claimed that appellant was incompetent. Appellant argues on appeal that trial evidence of his developmental limitations, which was offered to refute allegations of premeditation, necessitated a competency hearing. Appellant goes so far as to argue that evidence of a developmental disability, standing alone, constitutes substantial evidence of incompetency to stand trial. Appellant offers his poor academic performance and low IQ test score of 75 as 25 26 27 28 5 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 substantial evidence of incompetency. But evidence of possible developmental disability is not necessarily evidence of incompetency. The relevant question is whether “as a result of . . . developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a)). Nothing in the record suggests the appellant was unable to understand the nature of the proceedings or to assist counsel. Appellant’s police station meeting with his mother demonstrates the contrary. Appellant spontaneously told his mother that he was going to go to prison because he shot a man, and that he would “probably do 25 years.” Appellant explained to his mother that he lied to the police in telling them that ‘his partner’ was the gunman, and tried to pass a lie detector test by being “cool and calm” and putting the shooting out of his mind. Appellant formulated a defense in speaking to his mother. Appellant said: “I’m going to say I’m handicapped when I go to court and stuff. I’m going to tell my lawyer I’m handicapped.” 12 . . . 13 14 15 16 17 18 19 20 [N]othing triggered the need for a competency hearing. Defense counsel never expressed a doubt as to appellant’s competence, and nothing in appellant’s speech or behavior suggested that he was incompetent. Indeed, as described above, appellant’s pretrial statements show an understanding of the proceedings and an ability to assist in his defense. Nor did the medical testimony suggest that appellant did not understand the proceedings or could not assist in his defense. While a clinical neuropsychologist testified that appellant has low intelligence, she also testified that appellant is not mentally retarded, “can think,” “can get through life,” knows right from wrong, and can work and live on his own. The trial court was not required to initiate competency proceedings. 21 Pet.’s Ex. A, People v. Rainey, A088153 (2001) at 3-4. 22 B. Applicable Federal Law 23 A criminal defendant may not be tried unless he is competent. 24 Godinez v. Moran, 509 U.S. 389, 396 (1993). The conviction of a 25 defendant while legally incompetent violates due process. 26 Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994). The 27 test for competence to stand trial is whether the defendant "has 28 6 1 sufficient present ability to consult with his lawyer with a 2 reasonable degree of rational understanding –- whether he has a 3 rational as well as factual understanding of the proceedings 4 against him." United States District Court For the Northern District of California 5 Dusky v. United States, 362 U.S. 402, 402 (1960). Due process requires a trial court to order a competency 6 hearing if the court has a good faith doubt concerning the 7 defendant's competence. 8 doubt about a defendant's competence arises only if there is 9 substantial evidence of incompetence. Cacoperdo, 37 F.3d at 510. Id. A good faith This standard is 10 “clearly established Federal law, as determined by the Supreme 11 Court” within the meaning of 28 U.S.C. § 2254(d)(1). 12 Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000) (citing Pate v. 13 Robinson, 383 U.S. 375, 385 (1966)). 14 15 Torres v. The state law applied by the court of appeal is not inconsistent with federal law. 16 C. Analysis 17 Petitioner argues that the appellate court’s decision was an 18 unreasonable application of established federal authority and was 19 based on an unreasonable determination of the facts because the 20 record contains substantial evidence of his incompetency. 21 Petitioner relies on the trial testimony of Dr. Nell Riley, a 22 neuropsychologist who performed a neuropsychological assessment of 23 Petitioner in 1998, when he was eighteen years old. 24 concluded that Petitioner suffered from very significant 25 neuropsychological impairments based on the fact that his IQ was 26 75, he was reading at the level of an average six-year old child, 27 had the vocabulary and math skills of a nine-year old child, and 28 had problems processing information. 7 Dr. Riley Reporter’s Transcript (RT) at 1 668-70. 2 of Petitioner’s brain was not functioning normally and that these 3 impairments may have been caused by complications at birth. 4 687-88. 5 that Petitioner could think, knew right from wrong, could work and 6 live on his own. 7 Petitioner’s visual memory was above average, his delayed memory, 8 the ability to keep the information in his brain over time, was 9 good, RT at 700, and he had the ability to understand that certain United States District Court For the Northern District of California 10 11 Dr. Riley testified that a brain scan showed that an area RT at However, Dr. Riley also testified that the tests showed RT at 690-91. She also testified that actions have reactions, RT at 723-24. There was no evidence at trial that Petitioner could not 12 understand or assist in his defense. 13 appellate court, there was evidence to the contrary in Petitioner’s 14 conversation with his mother and in Dr. Riley’s testimony. In fact, as noted by the 15 Therefore, the appellate court’s decision was not an 16 unreasonable application of Supreme Court authority or an 17 unreasonable determination of the facts in light of the evidence in 18 the record. 19 II. Claims Regarding Admission of Confession 20 Habeas relief is denied on this claim. Petitioner asserts that the admission of his confession at 21 trial violated his Fifth Amendment right to remain silent because 22 his Miranda waiver was ineffective and violated his Due Process 23 right to a fair trial because his confession was not voluntary. 24 A. State Appellate Court Opinion 25 The relevant portions of the state appellate court opinion are 26 27 28 as follows: In a pretrial motion, appellant claimed that his waiver of the right to remain silent was ineffective and that his confession was coerced. The trial court denied the 8 1 2 motion after reviewing the videotaped police interview, a psychological evaluation of appellant, and police testimony. Appellant renews his challenge to the confession on appeal. 3 1. The interrogation and confession. 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 Evidence at the suppression hearing established that appellant was arrested at his home at 7 a.m. on November 6, 1996, after his friend Donald identified him to police as the gunman. The police interview began at 10 a.m., after the police conducted a probation search of appellant’s home and transported him to a police facility with videotape capabilities. The police did not ask appellant any questions about the shooting while in transport. At the police station, appellant was placed in a small interview room with a table and three chairs. On videotape, Sergeant Celestre asked appellant if he had been arrested before and advised him of his rights. Appellant said he had been advised of his rights “[p]robably twice” on earlier occasions. The officer stated and explained appellant’s Miranda rights, and appellant said “I understand.” In response to the officer’s question if appellant wanted to talk about the allegations against him, appellant said “yeah,” and “I’ll talk.” 14 15 16 17 18 19 20 21 Sergeant Celestre, sometimes joined by Sergeant Daley, interviewed appellant. Appellant sat at the table in a relaxed pose. Sergeant Celestre told appellant that someone identified him as the person responsible for the killing of an Asian man during an attempted robbery. Initially, appellant denied any involvement in the shooting. Sometime before 11 a.m., the officer asked appellant if he wanted to take a lie detector test and appellant said yes. Appellant asked if he could first have something to eat, and the police gave appellant lunch. As appellant waited alone for lunch, he sang rap songs. 27 At about 11 a.m., following lunch, appellant took a polygraph test at the District Attorney’s office. Investigator Sjostrand explained the test to appellant and interviewed him before examining appellant with the polygraph. The investigator reviewed the test results and, with Sergeant Celestre present, told appellant that it was clear that appellant shot Saechao. Sergeant Celestre told appellant that appellant failed the test “all across the board” and said that he had someone willing to testify that appellant shot Saechao. Appellant changed his story, and said that he was involved in an attempted robbery and shooting but that Donald was the gunman. 28 The officer and appellant returned to the police station 22 23 24 25 26 9 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 around 2:45 p.m. Appellant continued to deny being the gunman. Sergeant Celestre took a break around 3:30 p.m. and Sergeant Daley continued the interview. Appellant’s mother had telephoned Sergeant Celestre, and the officer returned her call. Sergeant Celestre told her that appellant was going to be booked and asked her if she wanted to see her son. Appellant’s mother said yes. The police moved appellant to a larger interview room furnished with a sofa and chairs at 4:10 p.m. Appellant’s mother arrived at police headquarters around 4:50 p.m. and was taken to appellant. The police surreptitiously videotaped and monitored appellant’s meeting with his mother. Almost immediately after his mother entered the room, appellant confessed to her that he shot Saechao. His mother asked appellant: “Are you sure you did it? Don’t be lying for nobody. Don’t be trying to lie for nobody.” Appellant replied: “I did it.” Appellant explained to his mother that he lied to the police in telling them that “his partner” was the gunman, and tried to pass the lie detector test by being “cool and calm” and putting the shooting out of his mind. Appellant told her that he was “going to say I’m handicapped when I go to court and stuff. I’m going to tell my lawyer I’m handicapped.” 19 Sergeants Celestre and Daley entered the room. Sergeant Celestre did not tell appellant that the police had been listening to appellant’s conversation with his mother. Without referring to the surreptitiously recorded confession, the officer asked appellant: “Clyde, is there anything different you want to tell me now?” Appellant said “I did it.” Appellant confessed to the police officers that he shot Saechao during an attempted robbery. Appellant explained that everything he had described earlier about the robbery was true but that he, not Donald, “pulled the trigger.” 20 2. Appellant knowingly waived his Miranda rights. 21 . . . 22 Appellant knowingly waived his constitutional rights, judged under the totality of the circumstances. Sergeant Celestre explained appellant’s rights one-by-one, each time eliciting appellant’s unhesitant statement that he understood what he was told. The officer then asked appellant if he wanted to talk and appellant said “yeah” and “I’ll talk.” Appellant had experience with the police. He had been arrested at least twice earlier and advised of his rights on those occasions. Nothing in the record, either at the time of the waiver or at other points in the interrogation, suggests that appellant did not understand the nature of the rights he waived and the consequences of his waiver. 15 16 17 18 23 24 25 26 27 28 10 1 3. 2 . . . Appellant’s confession was not coerced. 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 We agree with the trial court that appellant’s confession was voluntary. The videotapes of the interrogation show no signs of police aggression in conduct or voice. Sergeant Celestre sat at the interview room table with a coffee mug and a pad of paper on which he wrote notes. The officer asked a question, waited for appellant’s response, then asked another question. Appellant showed no signs of fear, confusion or fatigue. Appellant sat calmly in his chair, sometimes leaning back and sometimes listening to questions with has hand propped under his chin. At one point, when alone in the room, appellant sang rap songs. Late in the day, Sergeant Celestre asked appellant “Have I treated you right? Have I shown you respect?,” and appellant said yes. Appellant later told Sergeant Daly: “You all are cool.” 11 12 13 14 15 16 17 Appellant’s will was not overborne. Appellant long denied participation in the shooting, and admitted limited complicity only after failing the polygraph test in an apparent effort to better fit his story to the test results. Appellant even bragged to his mother that he had lied to the police, but that he wanted to tell her the truth. After telling his mother that he shot Saechao, appellant confessed to the police without the police ever mentioning their surveillance of the meeting. Appellant claims that the police coercively used the polygraph test and the meeting with this mother to induce a confession, and that the police lied and falsely promised leniency. 18 19 20 21 22 23 24 25 26 27 28 A polygraph test is not inherently coercive, as appellant concedes. (People v. Brown (1981) 199 Cal. App. 3d 116, 127.) Nor was its use here coercive. Appellant willingly agreed to take the test, and it was conducted in a professional manner over a reasonable length of time. Appellant’s chief complaint seems to be Investigator Sjostrand’s statement to appellant that a polygraph machine can detect a lie, and did detect lies in appellant’s denial of involvement in the shooting. A polygraph examiner’s stated opinion that the test revealed that the suspect lied is not necessarily coercive. (See Id. at p. 127.) No coercive effect upon appellant is apparent. The polygraph test and the examiner’s statements did not produce an immediate confession. Appellant changed his story to admit being present at the shooting, but he continued to deny being the gunman until a couple hours later, after speaking with his mother. Appellant denied the accuracy of the polygraph test results, telling the examiner and Sergeant Celestre that the results were skewed by his nervousness. 11 1 2 3 4 10 Nor did the police use appellant’s mother as a coercive “instrument for confession extraction,” as appellant claims. The record is undisputed that appellant’s mother initiated contact with the police, and then freely accepted Sergeant Celestre’s offer to let her speak with her son before he was booked. The police did not instruct the mother how to act or converse with appellant; they simply gave her the option of seeing her son. We recognize that the police hoped that appellant would confess to his mother, and monitored their conversation for that purpose. But this plan falls far short of the coercive use of a suspect’s friends and family condemned by the courts. 11 . . . 12 19 Finally, the record does not support appellant’s claim that his confession was induced by police deception and false promises of leniency. Appellant asserts that Sergeant Celestre lied in telling him that the officer had “somebody that is willing to testify that you shot that man.” However, Sergeant Celestre did have someone who was willing – and did – identify appellant as the shooter. Donald told the police that appellant shot Saechao. Any deception was limited to the officer’s averment of the witness’s willingness to testify, but the officer said he believed that Donald could be brought to court as a witness, if necessary. The officer’s overstatement of his case was slight, and there is no evidence that the embellishment induced appellant’s confession. 20 . . . 21 Lastly, appellant’s claim of false promises of leniency is unsupported by the record. Sergeant Celestre simply told appellant that, if appellant was the gunman, he should say so now because it would be “worse” for the fact to be revealed later. The officer said: “And I’ll tell you straight up, you know, I ain’t going to sit here [sic] bullshit you and tell you I’m going to wave some magic wand and make all your problems disappear. But if you’re the one who pulled the trigger on dude, let’s get it out on the table now. [¶] . . . [¶] Because if it –if it comes out tomorrow or the day after that or next week, it’s just going to make it that much worse.” Sergeant Celestre did not promise leniency; he exhorted honesty. Police statements that “it would be better for the accused to tell the truth” do not render a subsequent 5 6 7 8 9 United States District Court For the Northern District of California Appellant also told his mother that he tried to pass the lie detector test by being “cool and calm” and putting the shooting out of his mind. The record simply does not support appellant’s claim that the polygraph test broke his will. 13 14 15 16 17 18 22 23 24 25 26 27 28 12 1 2 3 confession involuntary. (People v. Boyde (1988) 46 Cal. 3d 212, 238.) Appellant clearly did not confess with any expectation of leniency. Appellant told his mother that he would “probably do 25 years,” and never suggested that he was expecting that his confession would bring a lighter sentence. 4 Pet.’s Ex. A at 4-11. 5 B. Applicable Federal Law 6 1. Miranda 7 In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court 8 held that certain warnings must be given if a suspect's statement 9 made during custodial interrogation is to be admitted in evidence. United States District Court For the Northern District of California 10 Once properly advised of his rights, an accused may waive them 11 voluntarily, knowingly and intelligently. Id. at 475. 12 Voluntary means that the waiver was the product of free and 13 deliberate choice rather than intimidation, coercion or deception. 14 Colorado v. Spring, 479 U.S. 564, 573 (1987). Knowing and 15 intelligent means that the defendant was aware of "the nature of 16 the right being abandoned and the consequences of the decision to 17 abandon it." Id.; Moran v. Burbine, 475 U.S. 412, 421 (1986). 18 A valid waiver of Miranda rights depends upon the totality of 19 the circumstances, including the background, experience and conduct 20 of the defendant. United States v. Bernard S., 795 F.2d 749, 751 21 (9th Cir. 1986). In the case of juveniles, this includes 22 evaluation of the juvenile’s age, experience, education, background 23 and intelligence, and whether the juvenile has the capacity to 24 understand the warnings given him, the nature of his Fifth 25 Amendment rights and the consequences of waiving those rights. 26 Fare v. Michael C., 442 U.S. 707, 725 (1979). 27 Where a Miranda waiver is concerned, the voluntariness prong 28 13 1 and the knowing-and-intelligent prong are two separate inquiries; a 2 state court's finding that a Miranda waiver was knowing and 3 intelligent is a question of fact. 4 813, 820-24 (9th Cir. 1990), cert. denied, 502 U.S. 853 (1991). 5 Whether a waiver was made voluntarily presents a mixed question of 6 law and fact. Id. at 821-22; Miller v. Fenton, 474 U.S. at 116. 7 2. Due Process 8 Involuntary confessions in state criminal cases are 9 United States District Court For the Northern District of California Derrick v. Peterson, 924 F.2d inadmissible under the Fourteenth Amendment. Blackburn v. Alabama, 10 361 U.S. 199, 207 (1960). 11 evaluated by reviewing both the police conduct in extracting the 12 statements and the effect of that conduct on the suspect. 13 v. Fenton, 474 U.S. 104, 116 (1985); Colorado v. Connelly, 479 U.S. 14 157, 167 (1986) (coercive police activity is a necessary predicate 15 to the finding that a confession is not voluntary). 16 The voluntariness of a confession is Miller "The test is whether, considering the totality of the 17 circumstances, the government obtained the statement by physical or 18 psychological coercion or by improper inducement so that the 19 suspect's will was overborne." 20 U.S. 218, 226-27 (1973); see e.g., Cunningham v. Perez, 345 F.3d 21 802, 810-11 (9th Cir. 2003) (officer did not undermine plaintiff’s 22 free will where interrogation lasted for eight hours and officer 23 did not refuse to give break for food and water, officer suggested 24 cooperation could lead to treatment rather than prison, officer 25 made statement he had put people in prison for similar conduct, 26 officer denied plaintiff’s request to call therapist, and plaintiff 27 diagnosed with mental disorder and taking bi-polar medication); 28 Clark v. Murphy, 331 F.3d 1062, 1073 (9th Cir.), cert. denied, 540 Schneckloth v. Bustamonte, 412 14 1 U.S. 968 (2003) (holding that state court’s determination that 2 interrogation was non-coercive, where suspect was interrogated over 3 five-hour period in six by eight foot room without water or toilet, 4 was objectively reasonable application of Schneckloth). United States District Court For the Northern District of California 5 The suspect’s age may be taken into account in determining 6 whether a confession was voluntary. 7 992, 1015-16 (9th Cir. 2004) (finding confession involuntary where 8 petitioner, a sixteen-year-old, was interrogated for three hours in 9 the middle of the night without an attorney or parent, given no Taylor v. Maddox, 366 F.3d 10 food, offered no rest break, may or may not have been given water, 11 threatened by officer’s jabbing ring in his face and drawing 12 diagram of a grim future if he did not confess, and denied access 13 to telephone to contact attorney). 14 in the case of a juvenile, that the police indicate that a 15 cooperative attitude would be to the benefit of an accused unless 16 such remarks rise to the level of being threatening or coercive. 17 Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (quoting 18 Fare, 442 U.S. at 727). 19 20 21 However, it is not enough, even C. Analysis 1. Miranda Claim Petitioner claims his Miranda waiver was not voluntary, 22 intelligent or knowing because he was sixteen years old at the time 23 of the interrogation, is borderline retarded, has severe learning 24 problems, and suffers severe deficits in basic skills which cause 25 him to function on the level of an eight to ten year old child. 26 The record is devoid of any evidence that the police used 27 coercive, intimidating or deceptive tactics to motivate Petitioner 28 to waive his Miranda rights. Petitioner’s arguments focus on his 15 1 mental and intellectual deficiencies and resulting alleged 2 inability to understand the significance of the waiver, not on any 3 improper police tactics. 4 court’s decision was not contrary to or an unreasonable application 5 of established federal law. 6 In analyzing the intelligent-and-knowing prong of the Miranda 7 claim, the state court considered Miranda v. Arizona and Fare v. 8 Michael C., the two Supreme Court cases directly on point. 9 Therefore, the state court opinion was not contrary to established 10 United States District Court For the Northern District of California The Court concludes that the state 11 federal law. Fare held that the same totality-of-circumstances approach 12 applies whether the suspect is a juvenile or adult. 13 725-26. 14 Court noted: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 442 U.S. at Addressing the interrogation of a sixteen-year old, the The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights. They fully explained to respondent that he was being questioned in connection with a murder. They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights. There is no indication in the record that respondent failed to understand what the officers told him. . . . [¶] Further, no special factors indicate that respondent was unable to understand the nature of his actions. He was a 16 1/2year-old juvenile with considerable experience with the police. He had a record of several arrests. He had served time in a youth camp, and he had been on probation for several years. . . . There is no indication that he was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. On these facts, we think it clear that respondent voluntarily and knowingly waived his Fifth Amendment rights. Id. at 726-27. Here, the state appellate court looked at the totality of the 16 United States District Court For the Northern District of California 1 circumstances regarding Petitioner’s Miranda waiver and concluded 2 that nothing at the time of the waiver or during the interrogation 3 suggested that Petitioner did not understand the nature of the 4 rights he waived or the consequences of the waiver. 5 analysis shows that it took into consideration Petitioner’s age and 6 experience with the police in making its determination. 7 is correct that the court did not mention the fact that he had a 8 low IQ and learning disabilities. 9 even though Petitioner was far below his age level in reading and The court’s Petitioner However, the record shows that, 10 writing, his memory and ability to understand cause and effect were 11 good. 12 skills Petitioner possessed allowed him to understand the nature of 13 the rights he was waiving and the consequences of his waiver. 14 Thus, the appellate court’s denial of this claim was not an 15 unreasonable application of federal law nor an unreasonable finding 16 of facts based upon the evidence in the record. 17 based on the Miranda claim is denied. 18 19 See RT at 700, 724. It was reasonable to conclude that the Habeas relief 2. Due Process Claim Petitioner claims that, based upon his particular 20 characteristics and the details of the interrogation, his 21 confession was involuntary and thus, his due process rights to a 22 fair trial were violated by its admission into evidence at trial. 23 a. Petitioner’s Characteristics 24 Citing Haley v. Ohio, 332 U.S. 596, 599-600 (1948), Petitioner 25 claims his youth was a significant factor in evaluating whether his 26 confession was voluntary. 27 old boy from his home to police headquarters at midnight to 28 question him about his involvement in a murder. In Haley, the police took a fifteen-year 17 Id. at 598. He United States District Court For the Northern District of California 1 was questioned for five hours by at least five police officers who 2 interrogated him in relays of two or more at a time. 3 after the suspect confessed at about 5 a.m. did the police inform 4 him that he had the right to remain silent and the right to an 5 attorney. 6 process rights had been violated. 7 the suspect’s age, the Court based its conclusion on the facts that 8 he was not advised of his Fifth Amendment rights before the 9 interrogation began, and that he was questioned in the middle of 10 the night, non-stop, by a combination of five different officers. 11 Id. 12 attorney for three days and his mother for five days after his 13 confession, it found that the “callous attitude of the police 14 towards the safeguards which respect for ordinary standards of 15 human relationships compels that we take with a grain of salt their 16 present apologia that the five-hour grilling of this boy was 17 conducted in a fair and dispassionate manner.” 18 Id. Id. Only The Supreme Court concluded that the suspect’s due Id. at 600. But, in addition to Noting that the police prevented the suspect from seeing his Id. Although Petitioner was sixteen at the time of the police 19 interrogation, other circumstances the Court relied on in Haley 20 were absent here. 21 Miranda warning before the interrogation began and he had 22 experience with the police and police interrogations. 23 interrogation in Haley, Petitioner’s interrogation was videotaped 24 and, thus, the actions of the officers were visible to judicial 25 scrutiny. 26 mother for days after the interrogation. 27 court did not unreasonably apply Supreme Court authority by 28 arriving at a different result than the Haley Court. Most importantly, Petitioner was given his Unlike the Finally, Petitioner was not kept isolated from his 18 Therefore, the appellate United States District Court For the Northern District of California 1 Citing four Supreme Court cases, Petitioner argues that his 2 lack of intelligence and education were important factors that the 3 appellate court did not consider. 4 correct that the appellate court did not specifically mention his 5 mental ability in its opinion. 6 by Petitioner involved suspects who were mentally deficient, they 7 also involved other circumstances which established police 8 coercion. 9 suspect was uneducated and of low mentality, but also mentally ill As noted above, Petitioner is However, although the cases cited In Fikes v. Alabama, 352 U.S. 191, 193, 196 (1957), the 10 and highly suggestible. 11 except for sessions of questioning. 12 lawyer were barred in attempts to see him. 13 before a magistrate after his arrest as is required by Alabama law. 14 Id. at 194. He was kept in isolation for one week, Id. at 197. Id. His father and He was not taken 15 In Payne v. Arkansas, 356 U.S. 560, 567 (1958), in addition to 16 being mentally slow, the petitioner was arrested without a warrant, 17 was denied a State-required hearing before a magistrate at which he 18 would have been advised of his right to remain silent and his right 19 to counsel, was not advised of his right to remain silent or his 20 right to counsel, was held incommunicado for three days while 21 members of his family were turned away, was refused permission to 22 make even one telephone call, was denied food for long periods, and 23 was put in fear for his life by the chief of police who told him 24 that there would be thirty to forty people at the police station 25 who wanted to get him. 26 petitioner confessed after being exposed to the threat of mob 27 violence established that the confession was coerced. 28 The Court concluded that the fact that the Id. In Spano v. New York, 360 U.S. 315, 322 (1959), the petitioner 19 United States District Court For the Northern District of California 1 was a foreign-born, twenty-five year old man with only one-half 2 year of high school education and a history of emotional 3 instability. 4 law enforcement officials for eight hours during the night before 5 he confessed. 6 had retained, were ignored. 7 instructed Bruno, a fledgling police officer and the petitioner’s 8 childhood friend, to tell the petitioner untruthfully that, because 9 the petitioner had called Bruno before he had turned himself over 10 to the police, Bruno might lose his job, which would be disastrous 11 for his pregnant wife, three children and unborn child. 12 319. 13 this untruth. 14 was overborne by “official pressure, fatigue and sympathy falsely 15 aroused” by Bruno’s story. 16 He was subjected to questioning by at least fourteen Id. His repeated requests for his attorney, whom he Id. 322-23. Finally, the police Id. at The petitioner confessed after the fourth time Bruno told him Id. The Court concluded that the petitioner’s will Id. at 323. In Columbe v. Connecticut, 367 U.S. 568, 620 (1961), the 17 petitioner had an IQ of sixty-four and as a result was classified 18 as a “high moron.” 19 intimidated. 20 for approximately five days before he confessed; he was never 21 advised of his Fifth Amendment rights; he was confronted by his 22 wife, whom police had coached to ask him to tell the truth; his 23 thirteen-year old daughter was called upon in his presence to 24 recount incriminating circumstances; his requests for a lawyer were 25 ignored; and, instead of promptly being brought in front of a 26 magistrate as required by Connecticut law, he was taken to a police 27 court on a “palpable ruse of a breach-of-the-peace charge concocted 28 to give the police time to pursue their investigation.” He was suggestible and could be easily Id. at 621. In addition, he was in police custody 20 Id. at 1 627-31. 2 In each case, although the petitioner was mentally impaired, 3 there were many other circumstances establishing police coercion. 4 Therefore, the Court addresses whether the record here demonstrates 5 such coercion by the police. 6 b. Coercive Police Activity 7 8 United States District Court For the Northern District of California 9 1. Physical Circumstances of Interrogation Citing Spano, 360 U.S. at 322 and Ashcraft v. Tennessee, 322 U.S. 143, 153, (1944), Petitioner contends that the length, 10 continuity, location and circumstances of his interrogation help to 11 establish that his confession was coerced. 12 distinguishable. 13 These cases are As discussed above, in Spano, the suspect was questioned for 14 many hours by relays of officers while he was held incommunicado 15 and the police enlisted the cooperation of the suspect’s friend who 16 persuaded him to confess. 17 In Ashcraft, relays of officers, experienced investigators, 18 and highly trained lawyers questioned the suspect for thirty-six 19 hours during which time he was held incommunicado and was not 20 allowed to sleep or rest. 21 Spano, the interrogations were not videotaped. 22 360 U.S. at 325 (dissent). 23 322 U.S. at 153. In both Ashcraft and Id. at 149; Spano, In contrast, Petitioner was questioned by only three law 24 enforcement officials and the interrogation was videotaped and 25 viewed by the trial court and the appellate court. 26 found no signs of police aggression and no signs that Petitioner 27 was afraid, confused or fatigued during the course of the 28 interrogation. The courts Therefore, the circumstances of Petitioner’s 21 1 interrogation did not create the coercive atmosphere that the Court 2 found objectionable in Spano and Ashcraft. 3 United States District Court For the Northern District of California 4 2. Psychological Coercion Petitioner contends that the police used psychological 5 techniques that were condemned in Miranda. 6 correct that Miranda cited several interrogation techniques that 7 were developed for the purpose of obtaining a confession from a 8 suspect, it did not suggest that use of these techniques 9 constituted a violation of due process; it listed these techniques Although Petitioner is 10 to explain why, before a custodial interrogation began, it was 11 necessary for a suspect to be advised of his Fifth Amendment rights 12 to be silent and to be represented by an attorney. 13 U.S. at 449-456. 14 proposition that the psychological techniques used by the police 15 during his interrogation are unconstitutional. 16 claim is without merit. 17 Miranda, 384 Petitioner cites no federal authority for the Therefore, this 3. Polygraph Test 18 As noted above, Petitioner contends that the officers’ use of 19 the polygraph test was coercive because the operator told him that 20 the test could detect lies and that Petitioner had failed. 21 Petitioner relies on a federal case from the District of New Jersey 22 and a state case from New York. 23 requirement for establishing an unreasonable application of Supreme 24 Court authority. 25 These do not meet the AEDPA Petitioner faults the officers for explaining to him how the 26 test operated and for showing him how the test indicated he was 27 being untruthful, but doesn’t explain how this was coercive. 28 appellate court’s conclusion that the polygraph test was not 22 The 1 coercive was not contrary to or an unreasonable application of 2 federal law. 3 United States District Court For the Northern District of California 4 4. Use of Petitioner’s Mother Petitioner claims that the police used his mother as an 5 unwitting agent for coercing a confession from him. 6 Petitioner cites for this argument, Spano 360 U.S. at 323 and 7 Culombe, 367 U.S. at 630 are distinguishable. 8 Spano, the police asked the suspect’s childhood friend to extract a 9 confession from him by lying to him. The cases As noted above, in Spano, 360 U.S. at 323. In 10 Culombe, the suspect’s wife was asked to tell her husband to 11 confess and his thirteen-year old daughter was called upon in his 12 presence to recount incriminating circumstances. 13 at 630. 14 Culombe, 367 U.S. Here, the police did not instruct the mother in what to say. 15 Petitioner confessed to his mother almost immediately after she 16 entered the room. 17 police allowed Petitioner to see his mother cannot be construed as 18 using the mother to coerce a confession from Petitioner. 19 Under these circumstances, the fact that the 5. Police Deception, Threats and Promises of Leniency 20 Again citing Spano, 360 U.S. at 321-24, Petitioner claims that 21 the officers’ lies, threats and promises of leniency rendered his 22 confession involuntary. However, even the evidence Petitioner 23 cites shows that Officer Celestre was urging Petitioner to tell the 24 truth, not offering him leniency or making threats. 25 In sum, the appellate court’s decision that Petitioner’s 26 confession was not coerced was not contrary to or an unreasonable 27 application of established federal authority and habeas relief is 28 23 1 denied on this ground. 2 III. Brady Claim United States District Court For the Northern District of California 3 Petitioner claims that, prior to trial, the prosecution failed 4 to disclose to the defense exculpatory and material evidence of a 5 statement by Phillip Kendrick to San Pablo Police Department 6 Detective Mark Harrison that Petitioner did not shoot Saechao, but 7 that other individuals were responsible. 8 A. Superior Court Habeas Opinion 9 The superior court judge who had presided over Petitioner’s 10 trial considered his habeas petition. 11 hearing on the Brady claim and concluded that Kendrick’s statements 12 to the police constituted favorable exculpatory evidence that 13 should have been disclosed to the defense. 14 denied the Brady claim on the ground that there was not a 15 reasonable probability that, had the statements been disclosed, the 16 result of the proceeding would have been different. 17 Ex. C, In re Clyde James Rainey, on Habeas Corpus, No. 01442-2, 18 March 23, 2005 at 12, 14. 19 20 He held an evidentiary However, the court Petitioner’s 1. State Court’s Finding of Facts The habeas court noted that the defense theory at trial had 21 been that, although Petitioner did shoot Saechao, it was not a 22 special circumstances robbery-murder because Saechao’s wallet had 23 not been taken. 24 part of a gang initiation of a young man who wanted the respect and 25 status of membership. 26 defense and convicted him of the special circumstance murder during 27 the course of a robbery. 28 Instead, the defense argued that the killing was The jury did not believe Petitioner’s Ex. C. at 11. The court found that Detective Harrison was a qualified expert 24 United States District Court For the Northern District of California 1 in the area of gang identification and criminal street activity, 2 particularly in the area of North Richmond where the shooting of 3 Saechao occurred. 4 street gangs in this area were the Project Trojans (PJTs) and their 5 subset, Trojans in Training (TITs). 6 level sales of drugs and witnesses who testified against them had 7 been murdered. 8 snitch, they chose a close relative. 9 of the individuals in these gangs, including those individuals Detective Harrison testified that the dominant Both gangs engaged in street If the gangs were unable to murder the alleged Detective Harrison knew many 10 mentioned to him by Kendrick. 11 Kendrick, Detective Harrison knew that Petitioner and Donald Clark 12 were suspects in the shooting of Saechao. At the time of his interview with Ex. C at 3. 13 On July 21, 1997, Detective Harrison conducted a lengthy 14 interview with Kendrick regarding three murders he was suspected of 15 committing. 16 Harrison asked Kendrick about Petitioner, who was not a gang 17 member. 18 present on the night that Saechao was murdered. 19 Asian man tried to buy marijuana from an individual named Butter. 20 When the man paid for the marijuana, other people nearby saw that 21 he had a great deal of cash on him and tried to rob him. 22 following colloquy took place between Detective Harrison and 23 Kendrick: Kendrick was in the core group of PJTs. Detective Kendrick stated that he knew Petitioner and that he was He stated that an The 24 H: Now does Clyde do it or did Brian? 25 K: Brian D. and Donald shot him ‘cause Brian D. shot him one time in the back and from the back now, from the back . . . I seen Brian D. shoot one time from the back and I seen Donald shoot one time from the side. 26 27 H: Now you’re talking about Clyde? 28 25 1 2 3 United States District Court For the Northern District of California 4 K: Yeah, but I call him Donald though, and I seen them set him over, ‘cause when they shot, all the blood flew in Butter face and shit. Ex. C. at 3-4. At the evidentiary hearing before the state habeas court, 5 Kendrick testified that on October 31, 1996, he was hanging out on 6 Sixth and Grove in North Richmond. 7 Brian Williams (also known as Brian D.), Hassan Williams (also 8 known as Dust) and Petitioner. 9 Butter was not there. Also present were Donald Clark, Donald Clark was waving a gun. A car drove up, and an Asian man got out who 10 wanted to buy marijuana. 11 when Dust, Kendrick and Petitioner walked away. 12 around and saw Donald Clark, holding his gun in his hand, standing 13 over the Asian man. 14 Kendrick observed Donald Clark shoot him a second time. 15 saw Brian Williams shoot the Asian man; Brian Williams was just 16 standing next to Donald Clark. 17 Donald Clark was about to sell him some, Kendrick turned The Asian man was lying in the street and He never Kendrick continued that, on June 21, 1997, he had turned 18 himself in to the Richmond police on other matters. 19 interviewed by Detective Harrison. 20 Detective Harrison asked him about Petitioner’s involvement in a 21 shooting and that Kendrick had told him that Brian D. and Donald 22 Clark did the shooting. 23 to defense counsel’s investigator in January, 2001 and had said 24 that the shooting occurred on Fifth Street and that the Asian man 25 drove up in a cab. 26 the shooting occurring on Fifth Street and about the Asian man 27 driving up in a cab. 28 He was Kendrick recalled that Kendrick also testified that he had talked Kendrick testified that he had been wrong about On cross-examination by the prosecutor, Kendrick was asked why 26 United States District Court For the Northern District of California 1 he had told Detective Harrison in the June 21, 1997 interview that 2 Brian D. as well as Donald Clark shot Saechao. 3 “When Donald shot him, Brian D. was standing next to him, so I was 4 trying to say, you know what I’m saying, that Brian D. was right 5 next to him . . .” 6 asking him many questions and it had been going on for hours, so 7 that he was telling Detective Harrison what he wanted to hear. 8 Kendrick admitted that he did not know where the first shot hit 9 Saechao and that his statement that blood flew in Butter’s face was Kendrick replied: Kendrick also said that Detective Harrison was 10 untrue. 11 Harrison were made up. Kendrick admitted that parts of his statement to Detective 12 With respect to the question, “You mean Clyde?” and his 13 answer, “Yeah, but I call him Donald though,” Kendrick testified, 14 “I was trying to tell him that I said Donald, the one who did the 15 shooting, not Clyde, and it came out the wrong way.” 16 Kendrick also admitted that he had lied about several things 17 he told the defense investigator on January 17, 2001 and that he 18 was “mixing the truth with the false” because he did not trust the 19 investigator. 20 Ex. C at 6-8. At the evidentiary hearing, Elizabeth Harrigan, Petitioner’s 21 trial attorney, testified that she did not receive a copy of 22 Detective Harrison’s interview with Kendrick until years after 23 Petitioner’s trial. 24 evidence, her defense would have been that Donald Clark was the 25 shooter and that Petitioner’s confession was false, made to protect 26 himself from retaliation by the gang or out of loyalty to the gang. 27 Harrigan surmised that if Petitioner testified against the PJT gang 28 and was labeled a snitch, not only would his life be in danger, but Harrigan testified that if she had this 27 1 his whole family would potentially be in danger. 2 that because Petitioner was young, inexperienced and not too 3 intelligent, he would “take one for the gang.” 4 find the inconsistencies in Kendrick’s statements to be 5 insurmountable. 6 Kendrick as a witness at trial even though he was a convicted 7 felon, a murderer and gave different versions of what happened, 8 including admitted lies. 9 Ex. C. at 8-10. United States District Court For the Northern District of California 10 11 Harrigan thought Harrigan did not Harrigan also testified that she would have used 2. State Court’s Analysis As noted above, the court concluded that Kendrick’s statement 12 was exculpatory, that it was suppressed by the prosecution, but 13 that it was not material under Brady. 14 Kendrick had given three different versions of the shooting to law 15 enforcement officials. 16 Butter sold marijuana to Saecho and that Brian D and Donald Clark 17 shot Saechao. 18 habeas petition, Kendrick testified that Donald Clark fired one 19 shot at the victim and that Kendrick did not know who fired the 20 second shot. 21 he saw Donald Clark shoot the victim twice. The court emphasized that First, he had told Detective Harrison that In a January, 2001 declaration attached to the At the evidentiary hearing, Kendrick testified that 22 The court stated: 23 Kendrick’s veracity . . . troubles the court . . . Kendrick admitted at the OSC hearing2 that Butter was not at the scene and that he made up that story. At the OSC hearing he admitted he lied to Harrison and told Harrison what Harrison wanted to hear. He lied about the cab incident; he lied to counsel’s investigator. He purposefully mixed “the truth with the false.” The pattern is consistent, whether it be Harrison or 24 25 26 27 28 2 The evidentiary hearing. 28 1 counsel’s investigator; Kendrick in his own words was “mixing some of the truth with the false.” 2 3 4 5 Kendrick’s attempts to extricate himself from his lies are completely unconvincing. For example saying he calls Clyde “Donald” when he later testified that no one, including himself, calls Clyde “Donald.” Then there is the example of saying Brian D shot the victim when he meant to say Brian D was standing next to the victim. His testimony just does not stack up. 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The results of Kendrick’s handiwork are the inconsistent Statements set forth above. The court knows of no method by which the various Statements can be reconciled and the ultimate true version of the facts gleaned therefrom. It is for this reason, inter alia, that the court now finds that all the Kendrick Statements, including the Stipulation, set forth above are not trustworthy and completely lack any indicia of reliability. The court accepts petitioner’s version of the facts as set forth in his confession. Moreover, the court had an opportunity to observe Kendrick’s demeanor at the OSC hearing and now finds his testimony to be wholly wanting. The court appreciates that defense counsel would have executed a different trial strategy if she had the 1997 Kendrick statement. That strategy would have included using Kendrick as a witness. And that’s the rub: how many versions of the shooting would he have concocted by the time he testified. The court cannot say. But if he mixed the truth with the false, as is his custom and habit, the jury, following cross-examination of him, would have found that they had to face the same question the court just faced, namely what value, if any, to place in Kendrick’s testimony knowing that he was a liar. The jury’s answer to that question, however, is not a difficult one. The jury would have placed no value at all in his testimony. Jurors take their jobs very seriously and when they turn their intellects individually and collectively to Kendrick’s testimony, they will see it for what it is, to wit, some strange contrived ramblings of a convicted gangster. Moreover, that jury would have petitioner’s straightforward and plausible confession as a counterweight to Kendrick’s concoctions. Admittedly trial counsel would attempt to prove the confession was a false confession, but that strategy would be unavailing because petitioner was neither in the PJTs nor the TITs and therefore, had no reason to take one for the gang. In short, it would be extremely unlikely a jury would have been convinced of the claim that the confession was a false confession when they had petitioner’s voluntary confession to his mother and the videotaped confession to Lt. Celestre. 28 29 1 2 For all these reasons, the court now finds that there is not a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 3 Ex. C at 12-14. 4 B. Applicable Federal Law 5 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court 6 held that "the suppression by the prosecution of evidence favorable 7 to an accused upon request violates due process where the evidence 8 is material either to guilt or to punishment, irrespective of the 9 good faith or bad faith of the prosecution." Id. at 87. Evidence United States District Court For the Northern District of California 10 is material "if there is a reasonable probability that, had the 11 evidence been disclosed to the defense, the result of the 12 proceeding would have been different. A 'reasonable probability' 13 is a probability sufficient to undermine confidence in the 14 outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). 15 The Bagley standard of materiality “does not require demonstration 16 by a preponderance that disclosure of the suppressed evidence would 17 have resulted in the defendant’s acquittal.” Kyles v. Whitley, 514 18 U.S. 419, 434 (1995). “A reasonable probability of a different 19 result is shown when the government’s evidentiary suppression 20 ‘undermines confidence in the outcome of the trial.’” Id. (citing 21 Bagley, 473 U.S. at 678); United States v. Golb, 69 F.3d 1417, 1430 22 (9th Cir. 1995) (ultimate question is whether there is reasonable 23 probability that, had evidence been disclosed, result of proceeding 24 would have been different such that confidence in outcome is 25 undermined). 26 A finding that the undisclosed evidence is material under 27 Bagley “necessarily entails the conclusion that the suppression 28 30 1 must have had ‘substantial and injurious effect or influence in 2 determining the jury’s verdict’” under Brecht. 3 435. 4 C. Analysis 5 Petitioner argues that the state habeas court’s conclusion 6 that Kendrick’s testimony was not material was contrary to Supreme 7 Court authority because the court stated that there was “not a 8 reasonable probability that, had the evidence been disclosed to the 9 defense, the result of the proceeding would have been different.” 10 United States District Court For the Northern District of California Kyles, 514 U.S. at Petitioner argues, 11 The U.S. Supreme Court has repeatedly stated: To prove materiality, a defendant need not demonstrate that it is more likely than not that he would have received a different verdict with the evidence; rather, “[a] ‘reasonable probability’ of a different result is . . . shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995), quoting United States v. Bagley, 473 U.S. 667, 678 (1985). 12 13 14 15 16 Traverse at 33-34. 17 The state court used the standard in Bagley and Kyles did not 18 overturn or disapprove Bagley. 19 was providing further guidance for the “reasonable probability of a 20 different result” standard set forth in Bagley by distinguishing it 21 from a preponderance of the evidence standard. 22 434. 23 when the government’s suppression “undermines confidence in the 24 outcome of the trial.” 25 Therefore, the state court’s opinion was not contrary to 26 established Supreme Court authority. 27 28 Rather, in Kyles, the Supreme Court Kyles, 514 U.S. at The Court further explained that the Bagley standard was met Id. (citing Bagley, 473 U.S. at 678). Petitioner argues that, with Kendrick as a witness, Harrigan would have used the defense that Donald Clark, not Petitioner, was 31 1 the shooter, and that Petitioner falsely confessed to protect his 2 mother from gang retaliation. 3 Kendrick’s testimony, Harrigan’s only choice was to present the 4 weak defense that there were no special circumstances because 5 Petitioner did not shoot the victim in the course of a robbery, but 6 as a gang initiation. 7 denied the opportunity to present the stronger defense, he did not 8 receive a fair trial. 9 testimony to use the defense that his own confession was false and United States District Court For the Northern District of California 10 11 Petitioner argues that, without Petitioner argues that, because he was However, Petitioner did not need Kendrick’s that Petitioner did not shoot Saecho. Further, there are flaws in Petitioner’s argument that the 12 jury would have believed that he confessed falsely to protect his 13 mother. 14 credible witness, which the habeas court reasonably found was not 15 probable. 16 Kendrick’s demeanor during his testimony, that he was totally 17 unreliable as a witness. 18 jury would have observed the same demeanor that the court did. 19 Furthermore, Kendrick’s reason for lying, that he told Detective 20 Harrison what “he wanted to hear,” does not withstand scrutiny 21 because there was no indication that the detective wanted to hear 22 the version Kendrick told him. 23 be good reason for Kendrick’s lies to the defense investigator, and 24 Petitioner proffers no reason why Kendrick would have told 25 Detective Harrison one story and the investigator another; the 26 court’s conclusion that Kendrick’s custom and habit was to “mix the 27 truth with the false” is the most plausible. 28 First, the jury would have had to find that Kendrick was a The habeas court found, based on its own observations of Had Kendrick testified at the trial, the Furthermore, there does not seem to Second, the false confession explanation is implausible 32 1 because Petitioner could have maintained his original story that he 2 wasn’t at the scene of the crime and didn’t know what happened. 3 This version did not incriminate a gang member and thus would not 4 have drawn retaliation. 5 gang member Donald Clark was the shooter contradicts the theory 6 that he was afraid of gang retaliation. United States District Court For the Northern District of California 7 Third, his statement to the police that Petitioner argues that the state court unreasonably relied on 8 the fact that he “was neither in the PJTs nor the TITs and 9 therefore had no reason to take one for the gang” by falsely 10 confessing. 11 evidentiary hearing and at trial demonstrates that whether an 12 individual was a member of a gang was not relevant to whether that 13 individual would falsely confess because a cooperating witness 14 would have reason to fear a gang might harm a member of his family. 15 However, as discussed above, the court relied on other findings to 16 conclude that it was not reasonably probable that the jury would 17 have found his confession to be false. 18 Petitioner points out that expert testimony at the Petitioner also argues that, with Kendrick’s testimony in 19 evidence, Harrigan would have used Dr. Riley’s testimony to show 20 that Petitioner was very susceptible to fear and intimidation from 21 the PJTs and that he could easily have been swayed to confess 22 falsely to protect his mother, to whom he was very close. 23 Dr. Riley also testified that the personality tests she gave to 24 Petitioner indicated that he scored a little above average in the 25 category of independence as opposed to accommodating, that he 26 scored a little above average in the category of dominance, that he 27 scored at the top of the average range in the category of vigilance 28 as opposed to trusting, that he scored just over the average range 33 However, 1 for self-controlled as opposed to unrestrained, and he scored a 2 little above average in the category of rule-conscious as opposed 3 to expedient. 4 characteristics, it would not have been evident that Petitioner was 5 particularly susceptible to fear and intimidation. United States District Court For the Northern District of California 6 RT at 715-718. With these personality Based on the above, the state court was reasonable in finding 7 that Kendrick’s statement to the police was not material. 8 the court’s decision was not contrary to or an unreasonable 9 application of established federal authority nor was it based on an 10 unreasonable determination of the facts in light of the evidence in 11 the record. 12 13 14 Thus, CONCLUSION Based on the foregoing, the petition for writ of habeas corpus is DENIED. 15 16 IT IS SO ORDERED. 17 18 Dated: 9/2/08 CLAUDIA WILKEN United States District Judge 19 20 21 22 23 24 25 26 27 28 34