Argued and Submitted, November 4, 2013, Pasadena, California
As Corrected May 8, 2014.
Petition for certiorari filed at, 07/23/2014
[Copyrighted Material Omitted]
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Appeal from the United States District Court for the Central District of California. D.C. No. 2:07-cv-07036-DSF-AGR. Dale S. Fischer, District Judge, Presiding.
Michael Weinstein (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender's Office, Los Angeles, California, for Petitioner-Appellant.
Tannaz Kouhpainezhad (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Michael R. Johnsen, Supervising Deputy Attorney General, Los Angeles, California, for Respondent-Appellee.
Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea.
BEA, Circuit Judge
We must decide whether, in the context of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a mid-trial conversation between a court bailiff and a criminal defendant constituted an interrogation that must be preceded by a Miranda warning. We decide that the state court's determination that the conversation was not such an inquiry was reasonable.
Petitioner Nelson Hernandez seeks habeas relief from his state murder conviction on the ground that his right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was violated. During a recess in his trial, Hernandez had a conversation with the court bailiff. Hernandez made inculpatory statements about details of the crime. The trial court, over Hernandez' objections, ruled that the conversation was not an " interrogation" under Miranda and permitted the bailiff to testify to the jury about the statements. On direct appeal, the California Court of Appeal, in a reasoned decision, also held that the conversation was not an " interrogation" under Miranda . The Los Angeles County Superior Court, California Court of Appeal, and the California Supreme Court later denied Hernandez' state habeas petitions without opinion. The district court then denied Hernandez' federal habeas petition under AEDPA, holding that the California Court of Appeal on direct appeal did not apply Miranda unreasonably in its decision and that the decision was not based on an unreasonable determination of facts in state court proceedings. We affirm.
Underlying Facts and Trial
On January 12, 2002, John McMillian picked up his friend Marylin West from her evening shift at a grocery store in the Wilmington area of Los Angeles, with plans to drive her to dinner. West asked McMillian to bring her back to her apartment complex first so she could change out of her work uniform. McMillian obliged. He waited outside the complex in the driver's seat of the car while West went inside.
A short time later, around 9:30 p.m., West walked back outside toward the car. As she walked, a heavy-set Hispanic male in a dark, hooded sweatshirt approached her, riding a black and silver bike. Her walkway was well lighted; West stated at trial that she could see the man's face clearly, and identified Nelson Hernandez in court as the man she saw that night. West also testified that she had seen Hernandez in the apartment complex five to ten times before during the six months prior to that night and had spoken to him briefly on occasion. She testified that as she walked Hernandez began to follow her and asked her name, who the man in the car was, and where they were going.
As the two neared the car, a second, thinner Hispanic male joined them. When the three reached the car, according to West, Hernandez' attention turned to McMillian. West testified that she attempted to open the passenger door, but that Hernandez " had opened" it first, and that he stood " inside" of the opened door
on the passenger side. The two men began to ask McMillian who he was, where he was from, and if he " gang-banged."  McMillian looked straight ahead and replied that he did not " gang-bang" and did not live around there. According to West, the two men repeated their interrogation for some five minutes, while she pleaded with them to leave her friend alone. Meanwhile, a group of about fifteen Hispanic males gathered. An older man from the group approached and said something like " don't do it." At that point, according to West, Hernandez pulled the hood of his sweatshirt over his head, produced a gun, and began firing at McMillian. West ran and hid in some bushes; McMillian died at the scene. When police arrived, they took West to the station, where she identified Hernandez in two photo " six-packs." Hernandez, who at first could not be located, was arrested several months later and charged with first-degree murder.
At trial, Hernandez' defense was that he was a hundred miles away that night at a party and that West mistakenly identified him. As noted, West placed Hernandez at the scene. Despite West's inability on cross-examination to remember precise details about the murder, including whether Hernandez had piercings or marks, or the makeup of the crowd that gathered, she told the jury that there was no " uncertainty in [her] mind" that Hernandez was " the person who shot John McMillian." The jury evidently believed her.
Conversation with the Bailiff
After West's testimony the court took a morning recess. The bailiff, Sheriff's Deputy Donald Moore, escorted Hernandez out of the courtroom and back to a lockup cell. On the way there, Hernandez and Deputy Moore engaged in the conversation that forms the basis of this appeal.
Deputy Moore's version of the conversation was as follows: he led Hernandez to the lockup cell after West's testimony. After passing through the door from the courtroom toward the holding area, he asked Hernandez, " Are you going to testify?" Hernandez replied that he " had an alibi but that his attorney did not want him to use it." Moore said that " that was the end of" that " first conversation." The two were then silent for about " forty-five seconds to a minute" as they proceeded up some stairs to the lockup cell area. When they reached the landing at the top of the stairs, according to Deputy Moore, Hernandez initiated a " second conversation" on a " different topic" from the " topic as before that [we] had been discussing." To " initiate that conversation," Hernandez asked Moore " what [he] thought about [West's] testimony." Deputy Moore told Hernandez " I thought she was nervous and [the defense] attorney tripped her up a little bit." At this, according to Deputy Moore, Hernandez " immediately blurted out that 'the bitch couldn't recall anything. She opened the door, we didn't'--excuse
me--'she didn't open the door, we did.'"  Although Deputy Moore was at first " overwhelm[ed]" by the statement, and was initially unsure whether Hernandez said that " she" or " we" opened the door, Moore testified he was certain that one of the two statements--either " she" or " we" opened the door--was correct. Upon further reflection, Moore determined that Hernandez said " she didn't open the door; we did." Deputy Moore wrote that version of the statement down. That, stated Moore, was the " entire conversation." 
According to Moore, he asked the question " Are you going to testify?" only out of " curiosity," and " just to see" about the " length of the trial," " because the D.A.'s case was moving along pretty fast, and I took the assumption that the case was almost over." Moore also said it was his " preference" to talk to prisoners to let him " understand the defendant and how he's going to react in court" for " security purposes."
In Hernandez' version of the conversation, Moore asked no questions at all before Hernandez started talking first. Hernandez said that he started the conversation by asking Moore " How [do you] think my case is looking?" Moore responded, " I seen people walk on worse things than this." After the two got up the stairs to lockup, Hernandez, in reference to West, said " I think this girl's lying." Moore replied, " Why is that?" Hernandez answered " because in the police report it says that she stated she opened up the door. And then, of course, she said I opened up the door." Hernandez insisted that he did not say that " we" opened the door, or that " she" did, but was only pointing out that there was a discrepancy between West's testimony and the police report that quoted her.
After the conversation, Moore informed the court clerk and court reporter what had happened. (A detective, who was in the courtroom as a prosecution witness, also overheard what Moore told them). Moore then spoke to both counsel, and ultimately to the court. The judge relieved Moore from courtroom duty immediately and scheduled a hearing for the next morning, Friday, September 12, at 9:00 a.m., to determine what to do about the unexpected development. Scheduled prosecution testimony continued through the afternoon.
At the Friday morning hearing, the prosecutor said that he would call Moore as a witness. Defense counsel objected to Moore's proffered testimony and moved to exclude it. Defense counsel first argued that the judge could not " fairly judge the credibility" of the ...