Argued and Submitted July 11, 2013.
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Keith H. Borjon (argued), Supervising Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Xiomara Costello, Deputy Attorney General, Los Angeles, CA, for Respondent-Appellant/Cross-Appellee.
Tracy J. Dressner (argued), La Crescenta, CA, for Petitioner-Appellee/Cross-Appellant.
Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:04-cv-01127-MMM-RCF.
Before: A. WALLACE TASHIMA and JAY S. BYBEE, Circuit Judges, and CATHY ANN BENCIVENGO, District Judge.[*]
BENCIVENGO, District Judge:
A California state court jury convicted Petitioner Reuben Kenneth Lujan of two counts of first-degree murder with special findings of using a deadly weapon, lying in wait, and conviction for multiple murders. Evidence supporting the convictions included Mr. Lujan's out-of-court custodial confession and his in-court testimonial confession at trial. The California Court of Appeal found that the custodial confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, the Court of Appeal also found that derivative evidence rules did not apply to exclude Mr. Lujan's testimonial confession. In light of the admissibility of Mr. Lujan's testimonial confession, the Court of Appeal concluded that the admission of the custodial confession constituted harmless error and affirmed the convictions. The Court of Appeal was not presented with, nor did it consider, the United States Supreme Court's opinion in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).
Pursuant to 28 U.S.C. § 2254, Mr. Lujan petitioned for federal habeas corpus relief from the convictions. The district court conditionally granted the petition, finding that the California Court of Appeal's harmless error determination conflicted with the clearly established Supreme Court precedent of Harrison. The district court issued a conditional writ directing Respondent Silvia Garcia, the former warden of Calipatria State Prison, to release Petitioner, unless the state timely initiates proceedings to either modify Petitioner's convictions to convictions for second-degree murder or retry Petitioner. Respondent filed a timely notice of appeal, and Mr. Lujan timely cross-appealed. For the reasons explained below, we affirm in part and vacate and remand in part the judgment granting the writ of habeas.
Monica Lujan, Petitioner's estranged wife, and Gilbert Madrigal, an off-duty deputy sheriff, were murdered in the early hours of August 16, 1998. Petitioner was arrested later that morning. Petitioner and Monica had separated four months earlier and on July 13, 1998, Monica told Petitioner she wanted a divorce. Petitioner habitually stalked and threatened Monica after their separation. He told her if she " wanted to play," she " would not win." He told her that their marriage would not
be over until he said it was, and if he could not have her, " we would have to wait and see."
When Monica threatened to get a restraining order, Petitioner responded, " Go ahead. That is, if you're still alive." Monica reported to the police that Petitioner had simulated shooting her— pantomiming a gun with his fingers and saying, " This is going to be you." She also reported that he had told her, " I'll kill you if you try to leave me." As a result of Monica's reports and Petitioner's repeated unannounced visits to her residence, Petitioner was arrested for making terrorist threats and stalking. One week before the killings, at approximately two o'clock in the morning, Petitioner again returned to Monica's residence and chased her inside.
Late on August 15, 1998, Petitioner drove by Monica's residence and saw her and Mr. Madrigal become " intimate" and enter his nearby house. Petitioner knew Mr. Madrigal was a police officer and had repeatedly questioned his (Petitioner's) son to determine if Monica was dating Mr. Madrigal or other men. While Monica and Mr. Madrigal were inside, Petitioner hid behind a truck in the driveway. When he heard them exit, he picked up a concrete block weighing fifteen pounds. He struck Mr. Madrigal with the block and then struck Monica repeatedly. Monica died at the scene; Mr. Madrigal died after spending a week in a coma. Petitioner later tossed the concrete block into the bushes and returned to his mother's home where he was residing. When Monica's father called the house to say Petitioner hurt Monica and " she did not make it," Petitioner told his mother to " go see how she is." Around the same time, Petitioner told his brother he had gotten into a fight with Monica and hurt her.
Once in custody, one of the detectives, without his printed Miranda warning card, advised Petitioner at 7:35 a.m. on August 16, 1998 as follows:
Your rights are you have the right to remain silent. Whatever we talk about, and you say, can be used in a court of law, against you. And if you don't have money to hire an attorney, one's appointed to represent you free of charge. So those are your rights.
If you have questions about the case, if you want to tell us about what happened tonight, we'll take your statement— take your statement from beginning to end. We'll give you an opportunity to explain your side of the story. And that's— that's what we're looking for. We're looking for the truth. So do you understand all that?
The first interview terminated at 9:05 a.m. A second audiotaped interview commenced some time later, and ended at 10:36 a.m.
Petitioner confessed to the murders during his third police interrogation, which commenced at 5:40 p.m. that evening. Prior to his confession, Petitioner had the following exchange with the detective:
[Petitioner]: Can I have an attorney present?
[Detective]: You want, you want an attorney present? You feel you need one?
[Petitioner]: Yes I do.
[Detective]: Okay. All right. If that's what you want to do, we'll do that.
[Petitioner]: Can I get one in here today?
[Detective]: I really doubt it. I mean, I'm going to be honest with you. It's Sunday evening. When you go to court in a couple of days there will be one appointed for you. That's the way the system is set up. If you have funds and you want to call and hire your own attorney. If you want to call and hire an attorney, that's fine.... If you want to make a statement without an attorney,
that's up to you. I doubt that if you hire an attorney they'll let you make a statement, they usually don't. That's the way it goes. So, that's your prerogative, that's your choice. Now, if you do want to talk to me without an attorney, that's your choice. You can just tell the jailor, " Hey, I'd like to talk to the detectives without an attorney present." Okay? That's your choice.
Petitioner would later make a custodial confession, admitting that he committed a brutal, surprise attack upon both victims with the concrete block.
Petitioner was tried for the murders in the Los Angeles Superior Court.  During a pretrial proceeding, Petitioner moved to suppress his custodial confession. The trial court allowed Petitioner's confession in the government's case-in-chief, despite finding the Miranda warning " incomplete." The trial judge further determined the confession was voluntary.
At trial, Petitioner testified to " explain the details of the offenses and the circumstances of his confession." Petitioner's trial counsel averred that Petitioner would not have testified but for the trial court denying his motion to suppress his custodial confession. Petitioner was convicted of two counts of first-degree murder with special findings of using a deadly weapon, lying in wait, and conviction for multiple murders.
The California Court of Appeal, on direct appeal, and the district court, on federal habeas review, separately found that Petitioner's custodial confession was obtained in violation of Miranda because he was not advised of his right to counsel before and during questioning. The California Court of Appeal found that while Petitioner's custodial confession should have been excluded at trial, its admission constituted harmless error because his trial testimony confirmed the same inculpatory facts. As it deemed the error to be harmless, the California Court of Appeal affirmed the convictions.
In reaching its decision, the Court of Appeal stated, " Defendant does not argue his confession was involuntary." The Court of Appeal also stated that there " is no contention nor evidence the August 16, 1998, Norwalk Sheriff's Station confession was involuntary; it merely resulted from a Miranda violation." The Court of Appeal also denied Mr. Lujan's petition for state habeas corpus relief. Both Mr. Lujan's direct and state habeas corpus appeals to the Supreme Court of California were summarily denied.
On federal habeas review in the district court, Magistrate Judge Rita C. Federman issued a thorough Final Report and Recommendation that recommended that the district court issue a conditional writ of habeas corpus ordering Respondent to release Petitioner or grant him a retrial. The magistrate judge agreed with the California Court of Appeal that the Miranda warning was defective, but concluded that the Court of Appeal's consideration of Petitioner's trial testimony in its harmless error analysis was contrary to clearly established federal law— the United States Supreme Court's holding in Harrison. The magistrate judge explained Harrison to stand for the principle that " when a defendant's trial testimony is induced by the erroneous admission of a confession into evidence, the trial testimony can not [ sic ] be introduced in a subsequent prosecution, nor can it be used to support the initial conviction on harmless error review,
because to do so would perpetuate the underlying constitutional error in the procurement of the confession."
The magistrate judge also noted that the record did not support the Court of Appeal's conclusion that Petitioner had failed to raise the voluntariness of his confession. The magistrate judge pointed to evidence in Petitioner's direct appeal, his habeas appeal, and his petition for review to the Supreme Court of California— all of which raised the issue— and noted that the parties litigated the issue during pretrial evidentiary hearings, as well. Nonetheless, the magistrate judge stated that the involuntariness question " does not appear to provide an alternate basis for federal habeas relief under § 2254(d)."
District Judge Morrow concurred and issued a thorough opinion adopting the magistrate judge's findings. The district court, however, supplemented the habeas remedy to allow Respondent to initiate proceedings to modify the convictions to convictions for second-degree murder, in lieu of release or retrial. While the district court agreed that the first-degree murder convictions and special circumstance findings did not result from harmless error, it found that the remaining evidence, after exclusion of Petitioner's custodial and testimonial confessions, was sufficient to establish convictions for second-degree murder.
STANDARD OF REVIEW
We review de novo a district court's decision to grant or deny habeas relief. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002). Since Petitioner filed his habeas petition in 2004, the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) applies. See Woodford v. Garceau, 538 U.S. 202, 207, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). We may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1), (2).
We must review the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir.2007), vacated in part on denial of reh'g en banc, 503 F.3d 822 (9th cir.2007) and rev'd and remanded on other grounds sub nom. Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009). We presume the state court's factual findings to be correct— " a presumption the petitioner has the burden of rebutting by clear and convincing evidence." Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir.2010). Even in the presence of error, the Court can only grant federal habeas relief if " the error had a ‘ substantial or injurious effect’ on the verdict." Parle v. Runnels, 387 F.3d 1030, 1034 (9th Cir.2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
We review de novo a district court's rulings on questions of law. Crittenden, 624 F.3d at 950. Factual findings and credibility determinations made by a district court in the context of granting or denying the petition are reviewed for clear error. Id. at 964. However, mixed questions of law and fact, including a district court's application of AEDPA, as well as its conclusion that the standards set forth in AEDPA are satisfied, are also reviewed de novo. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004).
Finally, we review a district court's ruling on the appropriate remedy in a habeas petition for abuse of discretion. Chioino v. ...