Mark Bradford v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ALAN BRADFORD, Nos. 15-99018

Petitioner-Appellant/ 15-99019

Cross-Appellee,

D.C. No.

v. 2:97-cv-06221-

TJH

RON DAVIS, Warden, California

State Prison at San Quentin, OPINION

Respondent-Appellee/

Cross-Appellant.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted February 28, 2019

Pasadena, California

Filed May 3, 2019

Before: MILAN D. SMITH, JR., PAUL J. WATFORD,

and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2 BRADFORD V. DAVIS

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of habeas

relief as to one of Mark Alan Bradford’s claims regarding

his conviction, reversed the district court’s procedural-

default holding as to two claims regarding his conviction,

remanded for the district court to consider whether Bradford

established prejudice as to those two claims, and on the State

of California’s cross appeal, reversed the district court’s

grant of a conditional writ of habeas corpus as to Bradford’s

death sentence.

The panel held that California’s timeliness rule for

habeas petitions – pursuant to which the California Supreme

Court denied as untimely Bradford’s claims for prosecutorial

misconduct for suppression of toxicology test results

(Claim 4), prosecutorial misconduct for suppression of notes

from witness interviews conducted by police (Claim 6), and

ineffective assistance of counsel for failure to present a

mental state defense of intoxication (Claim 8) – was

adequate when Bradford filed his state habeas petition on

January 6, 2000. In so holding, the panel rejected Bradford’s

contention that the adequacy of the timeliness rule should be

analyzed as of June 3, 1996, the date upon which his claims

fell outside the 90-day timeliness presumption. The panel

wrote that this conclusion is not altered because Bradford did

not file a state habeas petition until after filing his federal

petition, and that, in order to obtain federal habeas review,

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BRADFORD V. DAVIS 3

Bradford must establish cause and prejudice to overcome his

procedural default.

The panel held that Bradford established cause to excuse

his default due to the confluence of several factors, including

actions by his counsel that constituted abandonment.

Applying Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), the

panel held that the California Supreme Court’s conclusory

denial of Bradford’s claims on the merits does not preclude

the district court from conducting the prejudice inquiry. The

panel held that Bradford cannot establish prejudice for Claim

6 because the statements contained in the undisclosed

interview notes were cumulative of evidence admitted at

trial, such that the panel could not say that there is a

reasonable probability that the trial result would have

differed had the notes been disclosed. The panel remanded

Claims 4 and 8 for the district court to conduct the prejudice

inquiry in the first instance.

On the government’s cross appeal from the district

court’s grant of a conditional writ as to the death sentence,

the panel held that the California Supreme Court’s

conclusions regarding the voluntariness and admissibility of

Bradford’s four post-arrest statements were not contrary to,

nor an unreasonable application of, federal law.

4 BRADFORD V. DAVIS

COUNSEL

Patricia A. Young (argued), John L. Littrell, and Margo A.

Rocconi, Deputy Public Defenders; Hilary Potashner,

Federal Public Defender; Office of the Federal Public

Defender, Los Angeles, California; for Petitioner-Appellant.

Xiomara Costello (argued), David E. Madeo, and A. Scott

Hayward, Deputy Attorneys General; Steven D. Matthews

and James William Bilderback II, Supervising Deputy

Attorneys General; Lance E. Winters, Senior Assistant

Attorney General; Gerald A. Engler, Chief Assistant

Attorney General; Xavier Becerra, Attorney General; Office

of the Attorney General, Los Angeles, California; for

Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Mark Alan Bradford was convicted of first-degree

murder, first-degree robbery, rape, and sodomy in

connection with the 1988 killing of Lynea Kokes. After a

jury found that he killed Kokes to prevent her from testifying

against him—a special circumstance permitting capital

punishment—Bradford received a death sentence. Bradford

filed a petition for a writ of habeas corpus in the district

court, which denied relief as to the conviction but

conditionally granted relief as to his death sentence absent a

new special circumstance trial. He appeals the district

court’s limited grant of habeas relief, and the State of

California cross appeals the grant of habeas relief. Bradford

also claims that the district court erred in finding some of his

claims procedurally barred.

BRADFORD V. DAVIS 5

Because we find that the California Supreme Court did

not unreasonably apply clearly established federal law and

that its holdings were not contrary to federal law, we vacate

the district court’s grant of habeas relief. But we also hold

that Bradford has shown cause to overcome the procedural

default of his claims for ineffective assistance of counsel and

prosecutorial misconduct for the suppression of his

toxicology test results, and remand for the district court to

consider whether Bradford has established prejudice as to

either claim. Finally, we decline to expand the certificate of

appealability to include Bradford’s uncertified claims.

BACKGROUND

I. Factual Background

A. Murder of Lynea Kokes

On the morning of April 18, 1988, Mark Bradford and

his then-roommate Randall Beerman began playing cards

and drinking alcohol in their apartment at Panorama City

Lodge (the Lodge) in California. Bradford consumed a

quart-and-a-half of Black Velvet Whiskey and a six-pack of

beer. Around 3:30 pm, the Lodge’s assistant manager,

Joseph Stevens, spoke to Bradford. Stevens told Bradford to

vacate his apartment because his rent was overdue; he also

accused him of breaking into the Lodge’s office.

That afternoon, Bradford helped Lynea Kokes (Kokes),

a new manager for the Lodge, move into her apartment.

Sometime after 5 p.m., Bradford called an ex-girlfriend, who

said that he could stay with her in Fresno, California.

Bradford told Beerman around 6 p.m. that he had been

accused of breaking into the Lodge’s office and had to leave.

6 BRADFORD V. DAVIS

At some point, Bradford vomited in the apartment

bathroom and cleaned it up with towels. While Bradford

cleaned the towels in the laundry room, Beerman saw a knife

handle on the bathroom floor. That evening, Beerman went

to the laundry room to put the towels in the dryer and saw a

bent knife blade.

Sometime after 8 p.m., Alexander Kokes entered his

apartment and found his wife’s body. Police and paramedics

called to the complex pronounced Kokes dead. Beerman

later spoke with detectives and showed them the knife blade

in the laundry room. He then let police into his apartment,

where they arrested Bradford. The police searched Bradford

and found a wooden knife handle, caked with a dried red

liquid. Detectives also found a suitcase containing Kokes’s

wallet and other items, and a duffel bag containing red-

stained clothing in Bradford’s room. Shortly after his arrest,

Bradford’s blood was drawn for toxicology testing.

Forensic evidence indicated that Kokes died from a

combination of strangulation and stab wounds. She had also

been raped and sodomized. Bradford’s fingerprint was

found in Kokes’s apartment, and the blood on Bradford’s

clothing tested positive for the presence of blood consistent

with Kokes’s.

B. Bradford’s Statements to the Police

Bradford was driven to the police station and made four

statements over the course of the next day-and-a-half. The

first statement, to Detectives Riehl and Arnold, was made at

around 5 a.m. on April 19, 1988. Around 7 a.m., while being

booked, Bradford made another statement to station officers.

The third statement was made to Detective Hooks at

9:30 a.m. Just over twenty-four hours later, Bradford asked

to speak with detectives, and made the fourth statement to

BRADFORD V. DAVIS 7

Detective Arnold. In each of these statements, Bradford

implicated himself in the murder of Kokes.

II. Procedural Background

A. State Trial

Bradford moved to suppress all four statements. The

trial court ruled that: (1) Bradford’s first statement was

obtained in violation of Miranda v. Arizona, 384 U.S. 436

(1966), but was voluntary; (2) his second statement was

voluntary and not the product of interrogation; (3) his third

statement was involuntary; and (4) his fourth statement was

self-initiated, voluntary, and not in violation of Miranda.

Thus, the trial court concluded that the second and fourth

statements were admissible, but the first and third statements

were not.

Bradford’s second statement was introduced at trial

through the testimony of station officer Synthia Gordon.

The audio tape of the fourth statement played in court, and

jurors received a transcript of the statement. Bradford’s

defense waived opening statement and presented no

witnesses.

The jury found Bradford guilty of first-degree murder,

first-degree robbery, rape, and sodomy. The jury also found

true the special circumstance that Bradford intentionally

killed Kokes to prevent her testimony in a criminal

proceeding. However, the jury found Bradford not guilty of

burglary, and found not true the special circumstances of

rape-murder, sodomy-murder, and burglary-murder.

At the penalty phase, Bradford presented the testimony

of several family friends, evidence that he was drunk on the

day of the murder, and expert testimony that he had a

8 BRADFORD V. DAVIS

condition that makes him unable to control his conduct when

he ingests even a small amount of alcohol. The prosecution,

in rebuttal, presented an expert who disputed the diagnosis

of the condition. At the conclusion of the penalty phase,

Bradford was sentenced to death.

B. Direct Appeal

The California Supreme Court appointed Jonathan

Milberg to represent Bradford on appeal and in state habeas

proceedings. On January 23, 1997, the California Supreme

Court affirmed both Bradford’s conviction and death

sentence. People v. Bradford, 929 P.2d 544 (1997)

(Bradford).

The court agreed with the trial court that all four of

Bradford’s statements were voluntary, but that the first and

third statements were inadmissible. The California Supreme

Court also determined that although the second portion of

the second statement should not have been admitted because

it violated Miranda, any error was harmless because the

entire fourth statement was properly admitted. The Supreme

Court of the United States denied Bradford’s petition for a

writ of certiorari on November 3, 1997. Bradford v.

California, 522 U.S. 953 (1997).

C. Initial State and Federal Habeas Proceedings

Milberg repeatedly requested extensions of time and

additional funds to prepare Bradford’s state habeas petition,

but he never filed the petition.

On September 15, 1997, the district court appointed the

Federal Public Defender (FPD) to represent Bradford in

federal habeas proceedings. Bradford filed his first federal

habeas petition on October 30, 1998. On August 22, 2000,

BRADFORD V. DAVIS 9

the district court stayed the case to permit Bradford to

withdraw his unexhausted claims and present them in state

court.

Prior to the grant of the stay, the FPD filed Bradford’s

initial state habeas petition on January 6, 2000, along with a

request to replace Milberg as state habeas counsel. Soon

after, Milberg moved to withdraw as counsel; the California

Supreme Court granted the motion and appointed the FPD.

The California Supreme Court summarily denied Bradford’s

initial state habeas petition on August 29, 2001, rejecting all

claims on the merits and some on procedural grounds.

Pertinent to this appeal, the court denied Bradford’s Claims

4 (prosecutorial misconduct for suppression of toxicology

test results), 6 (prosecutorial misconduct for suppression of

witness interview notes), and 8 (ineffective assistance of

counsel for failure to present a mental state defense of

intoxication) as untimely. 1

D. Subsequent Federal Habeas Proceedings

On November 29, 2001, Bradford filed an amended

habeas petition in the district court. Eventually, Bradford

moved for summary adjudication on Claim 1, his Miranda

claim. The court held that the California Supreme Court’s

decision was contrary to and based on an unreasonable

application of clearly established federal law, that all of

Bradford’s statements were involuntary, and that the

admission of the second and fourth statements was not

harmless. The district court granted partial summary

1

Bradford filed a second state habeas petition in September 2003,

which was denied in August 2007. None of the claims in that petition is

at issue here.

10 BRADFORD V. DAVIS

judgment in favor of Bradford, declining to overturn his

conviction but vacating the death sentence.

The district court subsequently denied Bradford’s

remaining claims. The court held that Claims 4, 6, and 8

were procedurally barred as untimely presented in the state

courts and that Claim 12—the cumulative error claim—was

meritless.

The district court entered judgment on December 4,

2015, granting relief only on Claim 1, vacating the death

sentence. The court issued a certificate of appealability

(COA) on Claims 2–11 but denied Bradford’s application to

expand the COA to include Claim 12 and the denial of relief

on the conviction under Claim 1.

Bradford raises on appeal only three of the certified

claims—Claims 4, 6, and 8—and requests that we expand

the COA for Claims 1 and 12. The State cross appeals the

district court’s grant of habeas relief on Claim 1.

JURISDICTION AND STANDARD OF REVIEW

Because Bradford filed his petition for habeas corpus

after the effective date of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), we have jurisdiction

over the certified claims and the State’s cross appeal

pursuant to 28 U.S.C. §§ 2253 and 2254.

We review the district court’s denial of a habeas claim

on state procedural grounds de novo. Fields v. Calderon,

125 F.3d 757, 759–60 (9th Cir. 1997). We also review de

novo the grant of habeas relief. Hartman v. Summers,

120 F.3d 157, 160 (9th Cir. 1997).

BRADFORD V. DAVIS 11

A habeas petitioner challenging a state court decision in

federal court must show that the last reasoned state court

decision was either (1) “contrary to, or involved an

unreasonable application of, clearly established Federal

law,” or (2) “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). “Clearly established

federal law” “refers to the holdings, as opposed to the dicta”

of Supreme Court decisions as of the time of the state court

decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

A state court unreasonably applies clearly established

law if it “correctly identifies the governing legal rule but

applies that rule unreasonably to the facts.” White v.

Woodall, 572 U.S. 415, 426 (2014). Relief under

§ 2254(d)(1) is available “if, and only if, it is so obvious that

a clearly established rule applies to a given set of facts that

there could be no ‘fairminded disagreement’ on the

question.” Id. at 427 (quoting Harrington v. Richter,

562 U.S. 86, 103 (2011)).

Alternatively, habeas relief is available if the last

reasoned state court decision is contrary to clearly

established federal law. A decision is contrary to clearly

established precedent “if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court]

cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Also,

when a state court “confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent

and arrives at a result opposite,” the decision is contrary to

Supreme Court precedent. Id.

ANALYSIS

We consider first whether Bradford must, and can,

overcome procedural default for Claims 4, 6, and 8. We then

12 BRADFORD V. DAVIS

analyze the State’s cross appeal of the grant of habeas relief

as to Claim 1. Finally, we consider whether to expand the

COA to include Bradford’s uncertified claims.

I. Procedural Default of Claims 4, 6, and 8

The California Supreme Court denied as untimely

Bradford’s claims for prosecutorial misconduct for

suppression of toxicology test results (Claim 4),

prosecutorial misconduct for suppression of witness

interview notes (Claim 6), and ineffective assistance of

counsel for failure to present a mental state defense of

intoxication (Claim 8).

Federal habeas review is unavailable “if the decision of

[the state] court rests on a state law ground that is

independent of the federal question and adequate to support

the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011)

(alteration in original). To qualify as an adequate procedural

ground, a state rule must be “firmly established and regularly

followed.” Id. at 316.

Although a state court’s denial that rests on an adequate

and independent state-law ground generally precludes

federal habeas relief, the Supreme Court has carved out an

exception to that rule. In Coleman v. Thompson, the Court

held that where the petitioner could “demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice,” federal habeas review will not be barred.

501 U.S. 722, 750 (1991).

The district court concluded that habeas review of

Claims 4, 6, and 8 was unavailable because California’s

timeliness rule was an adequate and independent state-law

BRADFORD V. DAVIS 13

ground, and that Bradford failed to establish cause to

overcome procedural default. 2

A. California’s Timeliness Rule

To preclude federal habeas review, a state-law ground

must be adequate—that is, it must be “firmly established and

regularly followed.” Walker, 562 U.S. at 316. In Walker,

the Supreme Court reversed our court and held that

California’s timeliness rule for habeas petitions, although

discretionary, met the firmly established criteria. Id. at 321–

22. The Court noted that the California Supreme Court

“framed the timeliness requirement for habeas petitioners in

a trilogy of cases.” Id. at 317 (citing In re Robbins, 959 P.2d

311 (Cal. 1998); In re Gallego, 959 P.2d 290 (Cal. 1998);

and In re Clark, 855 P.2d 729 (Cal. 1993)).

In the first of these cases, In re Clark, the California

Supreme Court explained the four-part framework that

constitutes California’s timeliness rule for habeas petitions.

The court acknowledged that its June 1989 publication of

timeliness standards for capital case petitions established a

presumption of timeliness for habeas petitions filed “within

90 days of the final due date for the filing of an appellant’s

reply brief.” 855 P.2d at 751. 3 A petitioner could also show

2

The district court found that Bradford could not establish cause

because he failed to comply with California’s timeliness requirements,

and because the FPD’s delay in filing his state petition was unjustified.

The question of cause, however, is “a question of federal law,” Murray

v. Carrier, 477 U.S. 478, 489 (1986) (emphasis added), and, as a result,

the district court erred in analyzing whether Bradford met the

justification requirements pursuant to California law.

3

California’s timeliness rule has since been amended to increase the

window of presumptive timeliness to 180 days. See In re Reno, 283 P.3d

14 BRADFORD V. DAVIS

that a presumptively untimely petition was filed without

substantial delay, that good cause justified a substantial

delay, or that the petition fits within several enumerated

exceptions. See id. at 751–61.

Bradford contends that the adequacy of the California

timeliness rule should be analyzed as of June 3, 1996, the

date upon which his claims fell outside the 90-day timeliness

presumption, and that pursuant to Walker, the California

timeliness rule was not adequate until 1998. The State

claims that Bradford’s default should be considered as of

January 6, 2000—when Bradford filed his state habeas

petition.

Where, as here, there are no issues concerning whether

the defendant had adequate notice of the timeliness rule, the

correct date is when the state habeas petition is filed. In

Clark, the California Supreme Court considered whether the

petitioner had established substantial delay at the time of

filing, where his first petition was filed almost two years

after the policies establishing the 90-day presumption

window were issued, and his second petition was filed five

months after the first one was filed. 855 P.2d at 750–51.

Our cases follow suit. In Morales v. Calderon, the

petitioner filed his first federal habeas petition on July 20,

1992; his first state habeas petition on December 16, 1992

(about three and a half years after the California Supreme

Court confirmed his convictions); and a supplemental state

petition later. 85 F.3d 1387, 1388 (9th Cir. 1996). The

California Supreme Court denied both of his state habeas

petitions on July 28, 1993. Id. We held that California’s

1181, 1208 (Cal. 2012) (citing Cal. Supreme Ct. Policies, policy 3, std.

1–1.1.).

BRADFORD V. DAVIS 15

timeliness rule was not adequate at “any time after Morales’s

convictions were affirmed and before he filed his first state

habeas petition.” Id. at 1393 (emphasis added). Similarly,

in Calderon v. U.S. Dist. Court, we found supported the

district court’s conclusion that the adequacy of the state

procedural rule was to be analyzed at the time the petitioner

filed his first state habeas petition in 1987. 103 F.3d 72, 75

(9th Cir. 1996). The court did not consider the petitioner’s

default as of 1989, when the California Supreme Court

denied his petition; in 1994 when he filed a second state

petition; or in 1995, when the second petition was denied.

Id.

Bradford filed his initial state habeas petition on January

6, 2000. By then, the California Supreme Court had decided

Clark, Robbins, and Gallego. 4 Indeed, Bradford concedes

that California’s timeliness rule was adequate as of 1998.

Accordingly, we hold that California’s timeliness rule

was adequate as of January 6, 2000, when Bradford filed his

state habeas petition. Our conclusion is not altered because

Bradford did not file a state habeas petition prior to filing his

federal petition. In Morales, the petitioner also did not file a

state habeas petition until after filing his petition in federal

4

We have recognized several times that pre-Clark the California

timeliness rule was not firmly established and therefore could not serve

as an independent and adequate state ground to support procedural

default. See, e.g., Calderon v. U.S. Dist. Court, 96 F.3d 1126, 1130 (9th

Cir. 1996) (holding that California’s timeliness requirements were not

consistently applied before Clark); Morales, 85 F.3d at 1391 (finding

“no discernible clear rule” for petitions filed outside the 90-day

presumption of timeliness window before Clark). We have not yet

expressed any opinion as to whether Clark sufficiently clarified the

timeliness rule such that it was firmly established from then on. It is

unnecessary to decide the question in this case.

16 BRADFORD V. DAVIS

court, but we still looked to the filing date of his first state

habeas petition. 85 F.3d at 1388. Bradford relies on our

decision in Calderon v. U.S. Dist. Court, 96 F.3d 1126 (9th

Cir. 1996), but it is inapposite. There, the petitioner filed his

federal habeas petition in 1991 and his first state petition on

May 27, 1994. Id. at 1128. Despite the petitioner filing his

state habeas petition in 1994, the parties appeared to agree

that any default “would have occurred before Clark was

decided,” and we therefore held that the timeliness rule did

not bar federal review. Id. at 1130–31. Here, the State has

not conceded that Bradford’s default occurred pre-Clark, nor

does Bradford advance this position.

Since Bradford does not argue that a failure to consider

his claims will result in a fundamental miscarriage of justice,

Bradford must establish cause and prejudice to overcome his

procedural default. See Coleman, 501 U.S. at 750. We

address that issue next.

B. Cause to Overcome Procedural Default

Cause “must be something external to the petitioner.”

Id. at 753. External factors include obstacles such as “a

showing that the factual or legal basis for a claim was not

reasonably available to counsel,” or that “interference by

officials . . . made compliance impracticable.” Murray v.

Carrier, 477 U.S. 478, 488 (1986) (internal citations

omitted).

“Attorney ignorance or inadvertence” is not cause.

Coleman, 501 U.S. at 753. But, “[a]ttorney error that

constitutes ineffective assistance of counsel is cause.” Id.

at 753–54. This is because when an attorney’s error

constitutes a violation of the prisoner’s right to counsel, the

BRADFORD V. DAVIS 17

error is “imputed to the State,” and is therefore an external

factor. Id. at 754. 5

Murray left open “whether counsel’s decision not to take

an appeal at all” might require a different standard. 477 U.S.

at 492. Coleman answered that question in the negative and

held that the same cause and prejudice standard applied to a

“failure to appeal at all.” 501 U.S. at 750. Later, Maples v.

Thomas clarified that when a default results from an attorney

abandoning his client without notice, the attorney’s “acts or

omissions [] ‘cannot fairly be attributed to [the client].’”

565 U.S. 266, 281 (2012) (second alteration in original)

(quoting Coleman, 501 U.S. at 753). In Maples, the

petitioner’s attorneys ceased their representation long before

Maples’s appeal was due, but because they had not formally

withdrawn, Maples did not receive any notice before his time

to appeal expired. Id. at 287–88. The Court held that Maples

had established cause to excuse his procedural default due to

his attorneys’ abandonment. Id. at 289.

Bradford contends that Milberg’s failure to file his state

habeas petition constitutes cause to excuse his default.

Bradford also points to the California Supreme Court’s

response to his request for an extension to file that there was

no “due date” for his state habeas petition as contributing to

the cause for default. The State argues that even if Bradford

could show cause until 1998—when the FPD filed his

5

By contrast, if a petitioner had no constitutional right to counsel,

he “must bear the burden of a failure to follow state procedural rules.”

Id. Thus, in Coleman, because the defendant had no right to counsel

during his state post-conviction proceedings, the Court held that any

attorney error that led to the default of his claims could not constitute

cause. Id. at 757.

18 BRADFORD V. DAVIS

federal petition—there is no justification for the FPD’s 15-

month delay in filing the state petition.

We find that Bradford has established cause due to the

confluence of several factors. First, despite Milberg’s filing

of multiple requests for extensions of time to file Bradford’s

habeas petition and requesting preparation funds, he never

filed a petition. Nor did Milberg withdraw so that Bradford

could obtain other counsel. Milberg’s actions clearly

constituted abandonment.

Second, the California Supreme Court did not grant

Bradford an extension to file his petition, informing him

instead this petition was not subject to a “due date.” While

that statement is technically true because California does not

employ a strict deadline, a petitioner must make a greater

showing to justify the delay once outside the presumptively

timely window, which an extension could have broadened.

See Clark, 855 P.2d at 752–53.

Third, the district court did not rule for over a year on

Bradford’s motion to stay his case in order to exhaust his

claims in state court. By the time the FPD filed Bradford’s

state petition on January 6, 2000, the district court still had

not decided the merits of his motion or identified which of

his claims were unexhausted.

And fourth, Milberg did not move to withdraw as

Bradford’s state habeas counsel until soon after the FPD

filed his state habeas petition. Only then did the California

Supreme Court grant Milberg’s motion and appoint the FPD

as Bradford’s state habeas counsel.

Based on these unique circumstances that caused the

delay in the filing of the state habeas petition, we find that

BRADFORD V. DAVIS 19

Bradford has satisfied the cause prong of the cause and

prejudice inquiry.

C. Prejudice to Overcome Procedural Default

To overcome procedural default, a petitioner must also

show “actual prejudice.” Coleman, 501 U.S. at 750. This

requires the petitioner to establish “not merely that the errors

at . . . trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting

his entire trial with error of constitutional dimensions.”

Murray, 477 U.S. at 494 (alteration in original).

The district court, having found that Bradford had not

established cause, never reached the question of prejudice.

On appeal, the State argues only that Bradford cannot

demonstrate prejudice because the California Supreme

Court considered each of his claims and denied them on the

merits in Bradford.

Our opinion in Apelt v. Ryan, 878 F.3d 800 (9th Cir.

2017), undermines the State’s argument. There, we

considered the effect on the cause and prejudice analysis of

a state court decision that both held that a claim was

procedurally barred and denied the claim on the merits. Id.

at 825. The state argued that because the state court had

denied a post-conviction relief (PCR) petition on the merits,

the petitioner could not show that the failure to raise these

claims was prejudicial. We rejected that argument and found

that the state court’s “determination [was] not in itself a

complete bar to federal habeas review—particularly where,

as here, the state court’s merits ruling on the PCR is a

conclusory alternate ruling.” Id. at 827.

The California Supreme Court’s decision on the merits

of Bradford’s claims was similarly conclusory, and the

20 BRADFORD V. DAVIS

underlying principle of Apelt applies. As Apelt

demonstrated, a federal court first considers whether the

petitioner meets the cause and prejudice standard to

overcome procedural default, and then undertakes

deferential review of the state court’s merits determination

of the claim. See id. at 828–34 (finding ineffective

petitioner’s trial counsel and sentencing counsel but

concluding that the state court’s decision to the contrary

regarding his trial counsel was not unreasonable). 6 Similarly

here, the district court is not precluded from conducting the

prejudice inquiry because the California Supreme Court

denied Bradford’s claims on the merits.

We find, however, that Bradford cannot establish

prejudice for Claim 6—that the prosecution suppressed

various notes from witness interviews conducted by the

police. Under Brady v. Maryland, the prosecution must

disclose exculpatory evidence to the defense. 373 U.S. 83,

87 (1963). To succeed on his Brady claim, Bradford must

prove that (1) the evidence is favorable to him, (2) the state

suppressed the evidence, and (3) prejudice ensued. See

Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The third

component of the Brady claim overlaps with the prejudice

inquiry here, because “unless [the] documents were

6

We emphasize that a state court’s merits denial should not preclude

the prejudice inquiry to overcome procedural default. Although they rely

on similar analyses, the two inquiries are, and must remain, separate. For

example, a federal court could determine that a petitioner meets the

Coleman standard and establishes cause and prejudice to overcome

default. Then, pursuant to federal habeas review, the court could

conclude that the state court’s decision was objectively unreasonable and

grant habeas relief. In such a situation, to hold at the outset that the state

court’s merits denial of the claim barred the prejudice inquiry for

procedural default would improperly shield the claim from federal

review.

BRADFORD V. DAVIS 21

‘material’ for Brady purposes, their suppression did not give

rise to sufficient prejudice to overcome the procedural

default.” Id. at 282. That is, there must be a “‘reasonable

probability’ that the result of the trial would have been

different if the suppressed documents had been disclosed to

the defense.” Id. at 289.

Bradford focuses on statements given to the police by

Freddie Maldonado, Jack Schwark, and Phil Hall—none of

which was provided to the defense in discovery. In their

interviews, Maldonado stated that Bradford was “real drunk”

as he helped Kokes move into her apartment; Schwark noted

that Bradford’s eyes were “red and glassy” and he smelled

of alcohol around 4:30 p.m. to 5 p.m.; and Hall said that

Bradford had a “weird look” in his eyes. These observations

might have assisted the defense in mounting a mental state

defense to negate the intent element of first-degree murder

and helped to impeach Hall, who testified at trial that

Bradford did not appear to be under the influence of anything

on the day of the offenses. See People v. Saille, 820 P.2d

588, 595 (Cal. 1991) (noting voluntary intoxication and

mental illness evidence are admissible on the issue of

whether the accused “actually formed a required specific

intent, premeditated, deliberated . . . when a specific intent

crime is charged”).

But, Beerman’s testimony that Bradford was drunk, and

evidence of the amount of alcohol that Bradford had

consumed, were introduced at trial. The statements from

these three other individuals in the apartment complex who

saw Bradford looking “drunk” or “weird” were thus

cumulative. We cannot say that there is a “reasonable

probability” the trial result would have differed had the

interview notes been disclosed. Strickler, 527 U.S. at 289.

22 BRADFORD V. DAVIS

While we remand Claims 4 and 8, and not Claim 6, for

the district court to conduct the prejudice inquiry in the first

instance, our decision to remand these two claims should not

be regarded as suggestive of their merits.

II. Voluntariness of Bradford’s Post-Arrest Statements

Over the course of about a day-and-a-half, after being

arrested, Bradford made four statements to the police on

April 19 and 20, 1988. During each, Bradford implicated

himself in the murder of Kokes by describing details of the

crime. 7

On direct appeal, Bradford challenged the admission of

his second and fourth statements. The California Supreme

Court held that although the second part of the second

statement had erroneously been admitted at trial as

substantive evidence, its admission constituted harmless

error because the fourth statement had been properly

admitted. Bradford, 929 P.2d at 564.

The district court, after conducting de novo review, held

that all of Bradford’s statements were involuntary, that the

California Supreme Court’s decision denying relief was

contrary to and based on an unreasonable application of

clearly established federal law, and that the admission of the

entire second and fourth statements was not harmless. The

district court granted habeas relief as to the special

7

The State requests that we take judicial notice of the audio-

recordings of Bradford’s first, third, and fourth statements to the police.

The California courts considered the recorded interviews in determining

the voluntariness of Bradford’s confessions. Bradford, 929 P.2d at 567.

Because the request is unopposed, we GRANT the request and take

judicial notice.

BRADFORD V. DAVIS 23

circumstance and penalty phase and vacated Bradford’s

death sentence. The State cross appeals from that decision.

Under Miranda, custodial interrogation of a defendant

must be preceded by the advice that he has the rights, among

others, to remain silent and to have an attorney present. If a

defendant requests counsel, “the interrogation must cease

until an attorney is present.” 384 U.S. at 474. If a defendant

invokes his right to counsel, a subsequent waiver must be

voluntary, knowing, and intelligent. Edwards v. Arizona,

451 U.S. 477, 482 (1981). It is insufficient to show “only

that [the defendant] responded to further police-initiated

custodial interrogation” to establish a waiver of counsel. Id.

at 484. Once a defendant requests counsel, he should not be

subject to further interrogation “until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the

police.” Id. at 484–85. Thus, Edwards established a

“prophylactic rule designed to prevent police from

badgering a defendant into waiving his previously asserted

Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350

(1990).

Statements obtained in violation of Miranda are

nonetheless admissible for impeachment if their

“trustworthiness . . . satisfies legal standards.” Mincey v.

Arizona, 437 U.S. 385, 397–98 (1978) (alteration in

original). But, “any” use of a defendant’s involuntary

statement is a denial of due process. Id. at 398. A voluntary

statement must be “the product of a rational intellect and a

free will.” Id. This voluntariness inquiry considers “all the

circumstances of the interrogation.” Id. at 401. Relevant

circumstances may include: a suspect’s age, education,

intelligence, physical health, and prior experience with the

criminal system; the length, location, and conditions of

24 BRADFORD V. DAVIS

detention; the length and nature of questioning; and the use

by law enforcement of any threats, punishments, or

inducements. See, e.g., Schneckloth v. Bustamonte, 412 U.S.

218, 226 (1973). The state bears the burden of proving by a

preponderance of the evidence that the defendant’s Miranda

waiver and confession were voluntary. Colorado v.

Connelly, 479 U.S. 157, 168 (1986).

A prior coerced confession can “taint” a subsequent one.

See Oregon v. Elstad, 470 U.S. 298, 310 (1985). In

conducting a taint analysis, the court considers “the time that

passes between confessions, the change in place of

interrogations, and the change in identity of the

interrogators.” Id.

An Edwards violation, however, does not on its own

render subsequent confessions involuntary. See Elstad,

470 U.S. 308–10. Contrary to Bradford’s argument, the

Supreme Court has not clearly established that a

presumption of involuntariness attaches to statements taken

in violation of Edwards, such that subsequent statements are

tainted. The Court has held that statements taken in violation

of Edwards may still be used for impeachment, Oregon v.

Hass, 420 U.S. 714, 722–23; see also Harvey, 494 U.S. at

350–51, which means that such statements are not presumed

to be involuntary by virtue of the Edwards violation alone.

See Hass, 420 U.S. at 722–23; Mincey, 437 U.S. at 398.

Although the California Supreme Court held that

Bradford’s first and third statements were inadmissible,

because the district court’s analysis of these statements

influenced its holding as to the second and fourth statements,

we review all four. The California Supreme Court provided

a detailed account of the four statements in Bradford, and we

recite here only those facts necessary to provide context for

our analysis. We hold that the California Supreme Court’s

BRADFORD V. DAVIS 25

conclusions were not contrary to, nor were they an

unreasonable application of, federal law.

A. Statement 1: Statements to Detective Riehl on

April 19, 1988

In the early morning of April 19, 1988, Detectives Riehl,

Arnold, and Coblentz interviewed Bradford on tape in the

Van Nuys police station. Bradford, 929 P.2d at 555. Soon

after obtaining Bradford’s background information,

Detective Riehl informed Bradford of his Miranda rights and

asked if he wanted to speak about “what happened last

night.” Bradford declined and requested a lawyer. Detective

Riehl then told Bradford they could go “off the record.”

Bradford soon agreed to discuss Kokes’s murder and

described his actions.

The California Supreme Court held that although the

police violated Miranda in obtaining Bradford’s first

statement, it was voluntary. Id. at 566. The court noted that

Bradford had been in custody “only . . . six hours” when he

made the statement. Id. Moreover, the court observed that

once the detectives told him they were “off the record,” he

demonstrated “no hesitation” in speaking with them, and his

voice exhibited no “stress” or “excitement.” Id. at 566–67.

The district court held that this conclusion was contrary to

and an unreasonable application of federal law because the

detectives continued to interrogate Bradford after he invoked

his right to counsel and made misleading statements

regarding potential defenses.

Under our required deferential review, we find that the

California Supreme Court’s totality of the circumstances

analysis was not an unreasonable application of federal law.

We find support for the court’s conclusions regarding

Bradford’s voice upon our review of the interview recording,

26 BRADFORD V. DAVIS

which demonstrates that Bradford’s tone remained steady

and flat. The district court found damning the fact that

Detective Riehl improperly suggested that Bradford would

be “stuck” if he waited to speak to an attorney and spoke

about potential mitigation defenses. But the California

Supreme Court noted these facts, and the record here

diverges significantly from others in which we have

determined that police engaged in coercive tactics. See, e.g.,

Cooper v. Dupnik, 963 F.2d 1220, 1243, 1248 (9th Cir.

1992) (describing involuntary statement where police

ignored repeated requests for counsel and badgered suspect

for four hours with “harsh and unrelenting” questioning until

he was “sobbing and pleading his innocence”), overruled on

other grounds by Chavez v. Martinez, 538 U.S. 760 (2003).

Despite Bradford’s unambiguous requests for a lawyer and

the interrogation extending beyond one hour, the California

Supreme Court’s holding that his statement was voluntary,

despite the Edwards violation, was not an unreasonable

application of the federal voluntariness analysis.

In addition, the California Supreme Court’s conclusion

was not contrary to clearly established federal law. The

California Supreme Court identified the relevant precedent

of Miranda, Edwards, and their progeny. The court also

correctly noted that an Edwards violation alone, without

further coercion or other circumstances, does not inherently

render the statement involuntary. Bradford, 929 P.2d at 566.

Therefore, the district court erred holding that Bradford’s

first statement was involuntary.

B. Statement 2: Booking Statement on April 19, 1988

The second statement consists of two exchanges

occurring on April 19, 1988 at approximately 7 a.m., while

Van Nuys station officers booked Bradford. When Officer

Denby fingerprinted Bradford, an unidentified detective

BRADFORD V. DAVIS 27

applying for a license told Bradford he looked “like a traffic

ticket” and asked, “Is it just a warrant?” Bradford

responded, “Murder.” The detective then left, and for about

two minutes neither Officer Gordon nor Officer Denby

spoke to Bradford. Then, when Officer Denby finished the

fingerprinting, Bradford—unprompted—told the officers

that he had helped Kokes move into her apartment, choked

her, left the apartment to clean up, and returned to kill her.

Officer Gordon then asked Bradford if he felt sorry, and the

officers proceeded to ask him several questions about the

crime. Neither officer informed Bradford of his Miranda

rights.

The reviewing courts divided the booking statement into

two parts when analyzing its admissibility and voluntariness,

and so do we. The first part consists of the remark from the

unidentified detective until the end of the officers’ silence.

The second part is the exchange between the officers and

Bradford during which the officers questioned him.

i. First part of the booking statement

Miranda and Edwards apply only to custodial

interrogation. See Miranda, 384 U.S. at 478–79; Edwards,

451 U.S. at 486 (“Absent such [custodial] interrogation,

there would have been no infringement of the right that

Edwards invoked.”); see also Arizona v. Roberson, 486 U.S.

675, 681 (1988) (observing that the “prophylactic

protections” of Miranda “are implemented by the

application of the Edwards corollary”). Custodial

interrogation is “questioning initiated by law enforcement

officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any

significant way.” 384 U.S. at 444. Yet not all statements

given by a person in custody are entitled to Miranda

protection. Rather, interrogation “must reflect a measure of

28 BRADFORD V. DAVIS

compulsion above and beyond that inherent in custody

itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). As

refined by Innis, police officers’ express questioning or its

functional equivalent—when they “should have known

[their words or actions] were reasonably likely to elicit an

incriminating response,” Id. at 302—constitute

interrogation.

In Innis, the defendant requested counsel after being

advised of his Miranda rights. Id. at 294. As he sat in a

patrol car en route to the station, the officers conversed about

a missing shotgun and their concern that nearby handicapped

children would find the gun and hurt themselves. Id. at 294–

95. The defendant “interrupted the conversation” and told

the officers to go back so that he could show them the gun’s

location. Id. at 295. The Court held that this exchange was

not an interrogation within the meaning of Miranda, because

it could not determine that the officers should have known

their “off hand remarks” were reasonably likely to elicit an

incriminating response. Id. at 303.

The California Supreme Court found that the first part of

Bradford’s second statement was admissible because the

detective’s statement was not an interrogation and so

Bradford’s response of “Murder” was not protected, and that

Bradford had voluntarily initiated a discussion about the

murder before the officers questioned him. Bradford,

929 P.2d at 562. The district court found involuntary this

portion of Bradford’s booking statement because it was the

direct result of the prior coercion and a “mere[] 45 minutes

after Bradford’s earlier coerced statement to Riehl.”

The California Supreme Court applied Innis and

determined that because neither the detective’s “casual

statement” nor his question was reasonably likely to elicit an

incriminating response, there had been no interrogation. Id.

BRADFORD V. DAVIS 29

That conclusion is not contrary to or an unreasonable

application of federal law. The detective directly questioned

Bradford, but there was no “measure of compulsion above

and beyond that inherent in custody itself” such that the

question transformed into an interrogation and Bradford’s

answer into “the product of interrogation.” Innis, 446 U.S.

at 299–300. Similarly, Bradford’s discussion of the murder

after the detective left was not the product of custodial

interrogation. Bradford’s volunteered statements were

unprompted by the officers. See Edwards, 451 U.S. at 485–

86 (noting that the police could have used incriminating

statements made by Edwards prior to his access to counsel if

they were “voluntary, volunteered statements”).

ii. Second part of the booking statement

The officers elicited the second part of the booking

statement during custodial interrogation, and the California

Supreme Court concluded that under the totality of the

circumstances, while Bradford had not knowingly and

intelligently waived his right to counsel, his statements were

voluntary. Bradford, 929 P.2d at 562–64. The California

Supreme Court held that any error in admission of this

statement was harmless “beyond a reasonable doubt,”

finding it duplicative of Bradford’s fourth statement and the

evidence of his guilt “overwhelming.” Bradford, 929 P.2d

at 564. Conversely, the district court held that the admission

of this portion of the booking statement did not constitute

harmless error because neither the fourth nor second

statements were voluntary.

Because we agree with the California Supreme Court

that Bradford’s first statement and the first part of the

booking statement were voluntary, there was no coercive

“taint” to stretch to the second part of the booking statement

to render it involuntary. See Elstad, 427 U.S. at 310.

30 BRADFORD V. DAVIS

Further, Bradford initiated this conversation with the

officers after saying “Murder,” and there is no evidence of

coercion or compulsion in that short exchange. See Cooper,

963 F.2d at 1248 (describing “hours of mistreatment and

what can fairly be described as sophisticated psychological

torture”). The California Supreme Court’s conclusion that

this part of the second statement was voluntary was not

unreasonable or contrary to federal law.

This part of the booking statement, though, was

introduced as substantive evidence at trial, despite the

officers’ failure to advise Bradford of his Miranda rights and

the absence of a waiver by Bradford of these rights. On

direct appeal, a constitutional trial error can be held excused

only if “it was harmless beyond a reasonable doubt.” Brecht

v. Abrahamson, 507 U.S. 619, 630 (1993). On habeas

review, by contrast, we must apply the “less onerous

standard” of whether the constitutional error “had substantial

and injurious effect or influence in determining the jury’s

verdict.” Id. at 637 (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)). “[T]he Brecht standard

‘subsumes’ the [§ 2254(d) requirements] when a federal

habeas petitioner contests a state court’s determination that

a constitutional error was harmless.” Davis v. Ayala, 135 S.

Ct. 2187, 2198 (2015) (quoting Fry v. Pliler, 551 U.S. 112,

120 (2007)).

Given the amount of detail Bradford offered in the fourth

statement, the second part of the booking statement was

plainly cumulative. As discussed below, we find that the

California Supreme Court did not unreasonably apply

federal law in determining that the fourth statement was

admissible. Thus, the admission of this portion of the

booking statement did not have a “substantial and injurious

effect” on the jury. Cooper v. Taylor, 103 F.3d 366, 370–71

BRADFORD V. DAVIS 31

(4th Cir. 1996) (en banc) (finding harmless the improper

admission of defendant’s third confession given that the

same and additional information was provided in two earlier,

admissible confessions).

C. Statement 3: Statements to Detective Hooks on

April 19, 1988

Bradford’s third statement occurred on April 19, 1988

beginning around 9:30 a.m. Bradford, 929 P.2d at 557.

Detective Hooks interviewed Bradford, and began by noting

that “it’s my understanding that you chose not to waive your

rights at this time, is that correct?” After a clarification,

Bradford answered that he wanted an attorney “to help me

out a little bit.” Despite this affirmation of Bradford’s

request for counsel, Detective Hooks proceeded to

interrogate him “off the record.” Bradford again described

Kokes’s murder and the aftermath.

The California Supreme Court, although correctly noting

that Detective Hooks’s conduct was “unethical and . . .

strongly disapproved,” found the third statement voluntary

because Bradford had been in custody approximately eleven

hours and had demonstrated no hesitation in speaking with

Detective Hooks. Bradford, 929 P.2d at 566–67. The

district court determined that Bradford’s third statement was

involuntary.

While the California Supreme Court’s observation that

Detective Hooks’s conduct was “unethical” seemingly flies

in the face of its conclusion that his tactics were not

impermissibly coercive, the court’s totality of the

circumstances conclusion is entitled to deference. Contrary

to the district court’s finding, this statement was not tainted

by a prior involuntary statement. And, as with the other

recorded interviews, Bradford betrayed no emotion in the

32 BRADFORD V. DAVIS

interview to signal his distress or discomfort. Cf. Henry v.

Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999) (describing

incoherent suspect as “shaken, confused, and frightened,

crying in parts and frequently asking for forgiveness” in

interrogation after officers made misleading comments that

nothing he said could be used against him). It was not

objectively unreasonable for the California Supreme Court

to determine that Bradford’s will was not overborne during

the interrogation. Cf. Mincey, 437 U.S. at 401–02 (“Mincey

was weakened by pain and shock, isolated from family,

friends, and legal counsel, and barely conscious, and his will

was simply overborne.”).

D. Statement 4: Statements to Detective Arnold on

April 20, 1988

Bradford’s fourth challenged statement occurred on the

morning of April 20, 1988. Bradford called Detective Hooks

and said that he wanted to put a statement on the record.

Bradford, 929 P.2d at 559. At approximately 10 a.m.,

Bradford met with Detective Arnold for the interrogation.

Id.

At the beginning, Detective Arnold asked why Bradford

wanted to speak to them, and Bradford responded, “I had

some questions and I’ll probably talk, I don’t know.” After

some back and forth, Detective Arnold said that if Bradford

wanted to give an “on the record statement,” he would

“readvise [him] of [his] constitutional rights.” Detective

Arnold then advised Bradford of his right to an attorney.

Next, Detective Arnold asked if Bradford understood that he

had the right to counsel, and Bradford affirmed that he did.

Subsequently, Detective Arnold queried whether Bradford

wanted to give up his right to an attorney, and Bradford

affirmed. Detective Arnold then accurately stated

Bradford’s Miranda rights, and asked if he wanted to “give

BRADFORD V. DAVIS 33

up your right to remain silent.” Bradford again stated,

“Yes.” Detective Arnold asked, “Yes?” thrice more, and

Bradford affirmed twice. Finally, Detective Arnold

repeated, “Ok – do you wish to give up your right to have an

attorney present during questioning.” Bradford responded,

“Yes.”

During the interview, Bradford described helping Kokes

move in, grabbing her throat and raping her, and hitting her

as she gasped for air. Bradford stated that he returned to his

room to shower because he “had blood all over me.” In his

room, he started thinking about “[i]f she was gonn [sic] live,

you know, and ratting me off.” Armed with a knife,

Bradford returned to Kokes’s apartment where he thought

she was still alive because she was “gasping for air.” He

then “rolled her over and slit her throat” twice. He also

stabbed her in the chest.

The California Supreme Court held that Bradford’s

statement to Detective Arnold was properly admitted

because it was voluntary and Bradford validly waived his

Miranda rights. Bradford, 929 P.2d at 569. The district

court found the voluntariness ruling contrary to and an

unreasonable application of federal law due to the lasting

taint of the three prior illegally-elicited statements.

The Supreme Court has been clear that a defendant who

has asserted his right to counsel may still subsequently waive

his Miranda rights. See Minnick v. Mississippi, 498 U.S.

146, 156 (1990) (“Edwards does not foreclose finding a

waiver of Fifth Amendment protections after counsel has

been requested, provided the accused has initiated the

conversation or discussions with the authorities.”); Edwards,

451 U.S. at 485 (noting an accused cannot be further

interrogated unless “the accused himself initiates further

communication . . . with the police”). Here, Bradford

34 BRADFORD V. DAVIS

initiated the interrogation by calling Detective Hooks and

requesting a meeting. This self-initiated interrogation is

clearly permissible under Edwards. The California Supreme

Court properly identified the next inquiry as whether

Bradford’s waiver of his right to counsel was knowing and

intelligent and found that it was. Bradford, 929 P.2d at 568–

69.

Because it reasonably concluded that Bradford’s prior

three statements were voluntary, the California Supreme

Court need not have considered whether any taint passed to

this fourth statement. Although the three separate

Miranda/Edwards violations may weigh against a finding of

voluntariness, no Supreme Court precedent directed the

California Supreme Court to find a subsequent involuntary

statement after three voluntary ones, albeit ones given in

violation of Miranda/Edwards. The California Supreme

Court also considered whether the previous interrogations

had “amounted to psychological coercion” to break down

Bradford’s resistance, and reasonably found that “no

coercive threats or promises” were made. Id. at 569. 8

Accordingly, the California Supreme Court’s holding

that Bradford’s fourth statement was voluntary was not

objectively unreasonable. Bradford initiated the fourth

interrogation more than twenty-four hours after the third

8

Bradford relies heavily on our pre-AEDPA case Collazo v. Estelle,

in which we held on de novo review that a police officer’s

psychologically coercive tactics rendered a defendant’s later Mirandized

confession involuntary where the officer threatened that it could be

worse for the defendant if he spoke to a lawyer, and continued

interrogation after the defendant requested counsel. 940 F.2d 411, 419–

20 (9th Cir. 1991) (en banc). While some similarities exist between

Bradford’s case and Collazo, our cases cannot serve as clearly

established law for the purposes of habeas review post-AEDPA.

BRADFORD V. DAVIS 35

one, and Detective Arnold’s numerous clarifications of

Bradford’s Miranda rights and Bradford’s several

affirmations of his waiver rendered the waiver knowing and

intelligent. Starkly absent from the record are coercive

tactics that could lead us to conclude that Bradford’s fourth

statement was involuntary or his waiver unknowing or

unintelligent.

E. Conclusion

None of the California Supreme Court’s conclusions

regarding the voluntariness and admissibility of Bradford’s

four post-arrest statements deserves to be disturbed on

federal habeas review. Accordingly, we reverse the district

court’s holding for Claim 1 and its grant of a conditional writ

based on its finding that the California Supreme Court’s

decision was contrary to or an unreasonable application of

clearly established federal law.

III. Expansion of the Certificate of Appealability

A “COA may not issue unless ‘the applicant has made a

substantial showing of the denial of a constitutional right’

. . . a demonstration that . . . includes showing that

reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a

different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’” Slack v.

McDaniel, 529 U.S. 473, 483–84 (2000) (internal citations

omitted).

We decline to issue a COA with respect to Bradford’s

claims that the district court erred in fashioning a limited

habeas remedy or not granting him a new trial, in light of our

conclusion above that the district court erred in granting

habeas relief on Bradford’s Claim 1. Because we remand

36 BRADFORD V. DAVIS

Claims 4 and 8 to the district court to address the issue of

prejudice, we decline to expand the COA at this time to

address the issue of cumulative prejudice. And, because we

conclude that Bradford was not prejudiced with respect to

the subject matter of Claim 6, we need not expand the COA

to consider cumulative prejudice arising from that claim.

CONCLUSION

Due to the circumstances that delayed the filing of his

state habeas petition, Bradford has established cause to

overcome procedural default. We reverse the district court’s

procedural default holding as to Claims 4 and 8 and remand

for the district court to conduct the prejudice prong analysis.

We find, however, that Bradford cannot establish prejudice

as to Claim 6 and affirm the denial of habeas relief on that

claim. As to the State’s cross appeal, we reverse the

conditional writ of habeas corpus as to Bradford’s death

sentence. Finally, we decline to expand the COA.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.