The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION REGARDING PETITION FOR HABEAS CORPUS THE MERITS OF THE [DOCKET 72]
This Court has Petitioner John W. Berge III's petition for habeas corpus pursuant to 28 U.S.C. § 2254 before it. Pro se, Berge filed a petition for federal habeas relief on December 12, 2005. (Doc. 1). Having been appointed counsel, Berge filed an amended petition on June 5, 2006. (Doc. 23). Out of ten claims presented in the amended petition, rather than contest their exhaustion, Berge withdrew two, (Doc. 55 at 4-5); eight were found to be exhausted in state court and ordered to be briefed on the merits, (Doc. 70).
Prior to seeking federal habeas relief, Berge was convicted of first-degree murder for shooting and killing Ernest Taylor, second-degree theft for stealing Taylor's shotgun and tampering with evidence for concealing the shotgun and firearm used to kill Taylor. Berge v. State, Nos. A-7142, 4254, 2000 WL 1058955, at *1 (Alaska App. Aug. 2, 2000) (Berge I). The Court of Appeals for the State of Alaska affirmed Berge's convictions in an unpublished memorandum decision. Id. Berge petitioned the Alaska Supreme Court for review of that decision on August 9, 2000. The Alaska Supreme Court denied the petition. (Doc. 68). Berge then filed an application for post-conviction relief alleging ineffective assistance of counsel at his trial. Berge v. State, No. A-8683, 2005 WL 901779, at *1 (Alaska App. Apr. 20, 2005) (Berge II). The Superior Court dismissed the application and Berge appealed to the Court of Appeals. Id. The Court of Appeals affirmed the dismissal in an unpublished memorandum decision. Id. Berge sought review of the Court of Appeals decision in a pro se application to the Alaska Supreme Court that was subsequently denied. (Doc. 46, Ex. 5).
The remaining eight claims on the merits have been renumbered 1-8: (1) that he was in custody when the troopers talked to him and therefore he should have been read his Miranda*fn1 warnings, and based on this purported violation his statement should have been suppressed, (Doc. 23 at 9); (2) that he received inadequate Miranda warnings, (Doc. 23 at 14); (3) that he did not waive his Miranda rights, (Doc. 23 at 15); (4) that his Sixth Amendment right to counsel arose when the complaint was filed against him and precluded the police from talking with him without counsel, (Doc. 23 at 9, 16); (5) that he had not waived his right to counsel before he talked to the police, (Doc. 23 at 18); (6) that the prosecutor at trial illegally commented on the fact that Berge exercised his right to remain silent, (Doc. 23, at 20-21, 34); (7) that his trial counsel was ineffective for not filing a motion to suppress Berge's statements that were recorded pursuant to a warrant, (Doc. 23, at 4); and (8) that his trial counsel was ineffective for not obtaining a ruling on a motion to suppress that was based on Berge's right-to-counsel argument, (Doc. 23, at 4).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. DISCOVERY OF THE CRIMES*fn2
Susan Dotson and Michael Horwath had last seen Ernest "Ernie" Taylor about July 14, 1997 at Taylor's float house in Dall Bay outside of Ketchikan. Berge I, 2000 WL 1058955, at *1. Taylor was expected to appear in town three days later but failed to do so. Id. Dotson returned to Dall Bay and noticed that Taylor's skiff was tied up in an unusual way, that items of Taylor's personal property were missing, and that there was no sign of Taylor or his dog. Id. Dotson and Horwath reported Taylor missing on August 8, 1997. Id.
A day after Dotson's report, a trooper confirmed that neither Taylor nor his dog were around Dall Bay and that there was no sign of recent activity at Taylor's float house. Id. On August 25, a trooper stopped in Dall Bay and found Taylor's decomposing body floating in the water. Id. On August 26, an autopsy was performed. Id. Several wounds were thought to be worm holes. Id. No foul play was suspected; Taylor's cause of death was concluded to be an accidental drowning. Id.
On August 27, Trooper Randall L. McPherron, aided by Dotson and Horwath, inventoried Taylor's property and discovered that many items of Taylor's property were missing: rifles, shotguns, photo albums, clothing and crab pots. Berge II, 2005 WL 901779, at *1.
B. BERGE'S ADMISSIONS OF GUILT
On September 8, Trooper Randall L. McPherron met with Bob Dickerson, a local resident who claimed to have information regarding the crimes surrounding Taylor's death. Berge I, 2000 WL 1058955, at *1. Dickerson said that he contacted the troopers when he realized that no one had found bullet holes in Taylor's body. Id. at *1. Dickerson informed Trooper McPherron that, prior to the discovery of Taylor's body, John W. Berge III, the Petitioner, had confided in Dickerson that he had shot and killed Taylor. Id. Dickerson also reported that Berge thought that Taylor's body was still in the water. Id. Dickerson also reported Berge claimed to have taken some guns from Taylor and subsequently to have buried these guns. Id.
On September 9, Trooper McPherron obtained a Glass warrant*fn3
to monitor and record a conversation between Dickerson and
Berge. Id. at *2. In the monitored and recorded conversation, Berge
admitted that he had shot and killed Taylor and Taylor's dog. Id.
Berge claimed that there were "four holes" in Taylor and that he
killed Taylor in "self-defense." Id. Taylor's body was later exhumed
and subjected to another autopsy. Id. Four entry bullet wounds were
C. THE TROOPERS' SEPTEMBER 14 INTERVIEW WITH BERGE
On September 14, Trooper McPherron obtained a warrant to arrest Berge for first-degree murder. Id. After getting the arrest warrant, Troopers McPherron and Oscar Siegfried, both dressed in civilian clothes, stopped Berge on the street and identified themselves as troopers. Id. They did not inform Berge that they had a warrant for his arrest. Berge II, 2005 WL 901779, at *2. They informed Berge that they were doing "follow up work" on Taylor's death. Id. Trooper McPherron asked if he and Siegfried could "have a little talk with" Berge to ascertain where Taylor might have been and what he may have been up to prior to his death. Id. McPherron then asked Berge to enter an unmarked trooper van to get out of the noise of the traffic. Berge I, 2000 WL 1058955, at *2. Before entering the van, Siegfried patted down Berge, telling him the procedure was routine and seizing the folding knife he found on Berge. Id. Berge sat in the front passenger seat, McPherron in the driver's seat and Siegfried behind Berge. Id.
Inside the van, the troopers asked Berge for his name, address and place of employment. Id. Berge responded with a brief description of how he met Taylor fishing, drank a beer with him and that he seemed like a "really nice guy." Id. Berge then stated that after visiting Taylor on and off for about three weeks he became wary of him. Id. He concluded that Taylor "had an act going," "was really strange," and that he was "dangerous." Id. Berge said that, upon discerning this, he "got the heck out of there" sometime in June. Id.
Trooper Siegfried stated that Taylor's family thought some of his property was missing and inquired if Berge had anything to do with the missing property. Id. The troopers then told Berge that they were going to advise him of his rights. Id. They told him it was "just routine." Id. McPherron read Berge these warnings:
I'll go ahead and read this to you. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions if you wish. Do you understand everything I just read to you right? Id. at *3. Berge requested that it be read again, to which McPherron complied. Id.
Read it again? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
Id. Berge responded with an "[O]kay." Id.
The troopers asked Berge several more questions which he answered. Id. The trooper then told Berge that he knew he shot Taylor. Id. Berge responded that "I've said all I have to say." Id. The troopers then raised the possibility that Berge killed Taylor in self-defense. Id. They asked to hear Berge's explanation of the events. Id. Berge responded that "I told you all I have to say." Id. Siegfried asked if Berge wanted to inform the troopers of anything else. Id. Berge responded negatively. Id. McPherron then played a portion of the conversation between Dickerson and Berge that had been record pursuant to the Glass warrant. Id. The troopers asked Berge a few more questions. Id. Berge responded, "I've got nothing more to say. If you're going to charge me, charge me. Get me a lawyer." Id. The troopers then ceased their questioning and arrested Berge. Id.
D. JUDICIAL PROCEEDINGS*fn4
Berge filed a pre-trial motion to suppress his statements to the troopers alleging that the troopers violated the Miranda rule and his Sixth Amendment right to counsel. Id. Following a hearing, the Superior Court judge issued a written decision denying the motion. Id. It was found that the interrogation was non-custodial and that Miranda was therefore inapplicable. Id. It was not decided if Berge waived his Miranda rights. Id. Also, Berge's Sixth Amendment claim was not discussed in the written decision. Id.
Three days before Berge's Superior Court trial, Berge moved for a protective order that, in part, requested that a portion of his statements to the troopers on September 14 be barred. Id. at *5. The court considered the proposed protective order during a break in jury selection. Id. The State announced that it did not oppose Berge's protective order and proposed that the tape recording of Berge's statement be stopped where Berge had requested in his protective order. Id. Berge's trial attorney said nothing and the court directed the State to stop the tape recording where Berge requested. Id. When the tape recording was offered in evidence by the State, Berge's attorney said that his objection was the same as "had been set forth in the motion to suppress and the evidentiary hearing and the argument." Id. He did not otherwise object to the portion of the tape that was played nor did he object when the prosecutor cross-examined Berge about his statement to the troopers that was recorded on the tape. Id.
In his appeal to the Court of Appeals of Alaska, Berge alleged that he was subjected to custodial interrogation before he was arrested by the Alaska State Troopers. Id. at *1. Though Berge was read his rights, he argued that the troopers' warnings were inadequate under Miranda and that, even if adequate, that he did not waive his rights. Id. The Court of Appeals did not reach the issue of whether Berge was in custody. Assuming for purposes of entertaining the appeal that Berge was in custody, the court noted that the warnings given to Berge satisfied the requirements of Miranda.*fn5 Id. at *3-4. Ultimately the Court of Appeals concluded that Berge voluntarily waived his Miranda rights and agreed to speak with the troopers after they warned him of his rights. Id. at *4.
Berge also appealed on the grounds that his Sixth Amendment right was violated, a claim that he raised alongside the Miranda claim in the motion to the Superior Court. Id. Berge conceded that the Superior Court did not rule on this issue. Id. The Court of Appeals held, citing Alaska state law precedent,*fn6 that because Berge did not obtain the trial court's ruling on the claim, that the claim was forfeited. Id.
In reference to Berge's recorded statement to the troopers, Berge argued to the Court of Appeals that he invoked his right to remain silent and admission of evidence about the exercise of that right was reversible error. Id. at *1. The Court of Appeals said that because Berge never objected on those grounds during trial that he must show plain error. Id. at *6. The court found no plain error because the record did not rule out the possibility that Berge's attorney made a tactical decision to allow the jury to hear the disputed evidence and to allow Berge to be cross-examined regarding the statements. Id. at *7.
Berge argued to the Court of Appeals that the Superior Court erroneously instructed the jury that self-defense was not an issue in this case. Id. at *1. The court rejected this argument. Id. at *7. In Berge I, the Court of Appeals affirmed the judgment of the Superior Court. Id. at *1.
3. Motion for Post-Conviction Relief and Subsequent Appeal
Following the Court of Appeals' decision of Berge's direct appeal, Berge filed a petition for post-conviction relief, asserting that he had received ineffective assistance from his trial attorney in ten different respects. Berge II, 2005 WL 901779, at *1. The Superior Court ultimately concluded that none of Berge's allegations stated a prima facie case of ineffective representation and dismissed Berge's petition. Id. He appealed the Superior Court decision to the Court of Appeals. Id. He asserted that four of his allegations of ineffective assistance were sufficiently pled to state a prima facie case. Id. The Court of Appeals held that Berge did not establish a prima facie case for post-conviction relief and upheld the judgment of the Superior Court. Id. at *15.
III. STANDARD OF REVIEW FOR HABEAS CORPUS RELIEF
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to those cases filed after its effective date, that of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The substantive facts of this matter occur after that date, therefore AEDPA law is applicable.
The AEDPA allows for federal habeas relief only when the claims were adjudicated on the merits in state court proceedings and are brought by petitioners in custody pursuant to the judgment of a state court. 28 U.S.C. § 2254(d). Habeas relief may be granted if the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Id. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523 (2000).
In considering a habeas corpus application, the reviewing court presumes the factual determinations of state courts to be correct. 28 U.S.C. § 2254(e)(1). If a petitioner disagrees with the presumption of correctness he has the burden of rebutting the presumption by clear and convincing evidence. Id.
In determining whether habeas relief is appropriate, the federal court must look to the last reasoned state-court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). When there is no reasoned decision supplied by the state court, the reviewing federal court is to conduct an "independent review of the record." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (citing Delgado v. Lewis, 223 F.3d 976, 981-982 (9th Cir. 2000)). Independent review is not de novo review but rather is deemed the only way to determine if a silent state-court decision is objectively unreasonable. Himes, 336 F.3d at 853. Many of the relevant statutory phrases have been defined by the Supreme Court. Knowledge of those definitions is crucial to applying the statute appropriately.
"Clearly established Federal law" refers to the holdings, not the dicta, of the Supreme Court's decisions that were in effect at the time of the relevant state-court decision. Williams, 539 U.S. at 412, 120 S.Ct. at 1523. In line with this, constitutional error may not be found because a state court's decision conflicts with the precedent of the Circuit Court of Appeals. See Arnold v. Runnels, 421 F.3d 859, 865 n.6 (9th Cir. 2005) (stating that, though Federal courts reviewing habeas petitions are not to bind state courts to Ninth Circuit precedent, the reviewing courts may look upon the precedent as persuasive authority).
A state-court decision may be "contrary to" clearly established federal law in two ways as defined by Williams. Id. at 405-06, 120 S.Ct. at 1519-20. First, the state-court decision may be contrary if the state court applied a rule that was not prescribed by the governing federal law. Id. at 405, 120 S.Ct. at 1519. Second, a state-court decision may also be contrary if the state court confronted a set of facts materially indistinguishable from a decision reached by the Supreme Court yet arrived at a different result. Id. at 406, 120 S.Ct. at 1519-20.
A state-court decision may be an "unreasonable application" of clearly established federal law in two ways.*fn7 Id. at 407, 120 S.Ct. at 1520. First, it would be an unreasonable application of federal law if a state court identified the governing legal rule but applied it to the facts unreasonably. Id. Second, a state-court decision would be an unreasonable application if the state court unreasonably extended a legal principle to a new context where it should not apply or unreasonably refused to extend a legal principle to a new context where it should apply. Id.
A determination of facts may be deemed "unreasonable" for a number of reasons. It could be unreasonable because no finding of fact was made though one should have been. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). A factual determination also could be unreasonable if a finding of fact was made but under an improper legal standard. Id. at 1001. A determination of facts may also be unreasonable for procedural reasons. See, id. (hypothesizing that failing to hold a hearing concerning the presentation of evidence would be unreasonable on procedural grounds if that hearing were required by law). Among the procedural pitfalls is the possibility that the state court misapprehends or misstates the record in making a finding of fact. Id. Yet another pitfall is when a court overlooks facts when making a finding, thereby leading to an unreasonable factual determination. Id.
IV. ANALYSIS OF BERGE'S CLAIMS
Prior to the enactment of AEDPA, federal courts entertaining a state prisoner's application for habeas relief exercised independent judgment when deciding both questions of federal law and questions of law and fact combined. Williams, 529 U.S. at 400, 120 S.Ct. at 1516. Essentially federal habeas courts owed no deference to a state court's resolution of such questions. Id. Now, under the AEDPA, as Berge's petition is, habeas relief may not be granted unless a state's adjudication of a claim resulted in a decision contrary to, or involved an unreasonable application of clearly established federal law, or was an unreasonable determination of the facts. 28 U.S.C. § 2254(d).Opposed to the pre-AEDPA standard of exercising independent judgment, the federal habeas court is to have a "highly deferential standard for evaluating state-court rulings."Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 2066 n.7 (1997). State-court decisions are to "be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360 (2002).
In his briefings in this matter, Berge appears to argue the error of the state court judgments. However, under current law, a petitioner is not to demonstrate that the determination of a factfinder was erroneous or incorrect but that the application of federal law was "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175 (2003).
B. MIRANDA CLAIMS (CLAIMS 1, 2 AND 3)
Claims 1 through 3 relate to Berge's claims of violations of Miranda v. Arizona.
1. Litigation in the Trial Court
Berge filed a pre-trial motion in the Superior Court to, among other requests, suppress the statements he made on September 14 to the troopers. (Doc. 92-6). He claimed that he was in custody and not initially advised of his constitutional rights. (Doc. 92-6 at 1). He also claimed that he did not make a knowing, intelligent and voluntary waiver of those rights. (Doc. 92-6 at 1). Superior Court Judge Thomas M. Jahnke denied the motion in a written four-page order. (Doc. 92-6).
Judge Jahnke found the Berge's encounter with the troopers was "clearly non-custodial as that term is defined in the cases." (Doc. 92-6 at 2). He observed that while there were several factors that could possible weigh in the favor of custody, that those factors were common to almost all police interrogations. (Doc. 92-6 at 2). Those factors were that the interviewers had been police, that the place of the interview was separate from the general public, and that Berge had been patted down before being ...