Gill v. Martel

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 5/24/11 ORDERING Petitioner's request for discovery is DENIED; and Petitioner's request for an evidentiary hearing is DENIED. IT IS RECOMMENDED that the 7 Amended Petition for Writ of Habeas Corpus filed by Andrew Wright Gill be denied. Objections to F&R due w/in 21 days.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW WRIGHT GILL,

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Petitioner,
vs.
MICHAEL MARTEL,
Respondents.

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2: 09 - cv - 748 JAM TJB

ORDER, FINDINGS AND
RECOMMENDATIONS

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Petitioner, Andrew Wright Gill, is proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of sixty-four

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years and eight months to life imprisonment after being convicted by a jury of numerous crimes

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including: (1) kidnapping to commit spousal rape, rape by a foreign object and forcible oral

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copulation; (2) spousal rape; (3) rape by a foreign object; (4) forcible oral copulation; (5) making

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criminal threats; (6) attempted rape by a foreign object; (7) infliction of corporal injury on a

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spouse; (8) cutting a utility line; and (9) residential burglary. Petitioner raises four claims in his

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amended federal habeas petition; specifically: (1) the trial court erred when it denied Petitioner’s

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motion to disqualify the district attorney (“Claim I”); prosecutorial misconduct (“Claim II”); (3)

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the trial court erred in allowing Petitioner’s statement to police to be admitted into evidence
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(“Claim III”); and (4) Petitioner’s preliminary examination was held in violation of California

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Penal Code § 859(b) which violated Petitioner’s Constitutional rights (“Claim IV”). For the

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following reasons, Petitioner’s amended federal habeas petition should be denied.

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II. FACTUAL BACKGROUND1

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Mark Gantt had lived next door to the Gills for several years and
saw them every day or so. On the morning of January 31, 2004, he
met defendant for breakfast at Denny’s restaurant around 9:00 a.m.
Defendant was “very agitated” and told Gannt that T.G.
[Petitioners’ wife] would not let him back in the house. Gantt tried
to calm defendant and advised him to stay away from the house to
avoid causing more problems.

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Gannt met defendant later that morning at the Home Depot at
T.G.’s request. T.G. had given Gantt a suitcase, $50 and a note to
deliver to defendant. The gist of the note was “get a job, be
accountable, and talk to me.” Gantt collected a set of house keys
from defendant and returned them to T.G.

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Between noon and 1:00 p.m, Gantt observed that defendant had
parked his car in front of the house. Gantt spoke with T.G. on the
phone. She told him that she was afraid of what defendant might
do. Gantt went outside and spoke with defendant for 15 or 20
minutes. According to Gantt, defendant was very upset. Gantt
spoke with defendant a second time an hour later, describing
defendant as “very, very upset.”

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At that point, Gantt advised T.G. to call the police and called the
police himself. The police officers arrived around 4:00 p.m. and
spoke with both defendant and T.G. T.G. asked for an emergency
protective order, but the request was denied. The officers
suggested to defendant and T.G. that one of them leave in order to
avoid any further problems. Defendant responded that it was
unfair for him to leave. He told the officers that he intended to
wait in his car until T.G. allowed him back into the house.

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Defendant telephoned his house around dinnertime in an attempt to
resolve things with T.G., but she did not answer. Defendant left a
message indicating that, “there was going to be trouble” if T.G. did
not speak to him.

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Gantt met with defendant in front of the house for a third time later
that evening. He urged defendant to leave, but gave him a blanket

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The factual background is taken from the California Court of Appeal, Third Appellate
District opinion on direct appeal dated January 22, 2008 and filed in this court on June 8, 2010
by Respondent as Lodged Document 4 (hereinafter “Slip Op.”).
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in case he decided to stay. Defendant indicated that he planned to
stay at a friend’s house. Gantt checked around 11:00 p.m. and
defendant’s car was gone.

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The Assault and Kidnap of T.G.:

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Just after 1:00 a.m., T.G. heard a loud bang on the front door. [FN
2] She ran to the room of her 10-year-old son D.G., to look out the
front of the house. T.G. ran back to her bedroom and heard
another loud crash that sounded like glass breaking. She tried to
telephone Gantt but the line was dead.
[FN 2] T.G’s account of the events is taken from her trial
testimony, her interview with police detectives on February 1,
2004, and her interview with the deputy district attorneys on
February 10, 2004.

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A few seconds later, defendant walked into the bedroom, turned on
the lights, and said, “[S]urprise.” T.G. testified that defendant was
“really angry,” cursing and calling her a “f —ing bitch.”
Defendant grabbed T.G. by the hair and slapped her across the
mouth. He hit her again when she tried to get a Kleenex to wipe
her bloody lip. Defendant pulled T.G. around the room by her hair
and kicked her in the side when she fell to the ground. He dragged
T.G. to a futon couch near the window and told her that she had
“made the biggest mistake of [her] life,” and was going to “pay
tonight,” and was going to “die tonight.”

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T.G. testified that it was like defendant had “snapped” and it was
not the first time it had happened. She could recall three incidents
where he yelled and hit her.

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Defendant dragged T.G. from the bedroom to the garage. Once
there, defendant forced T.G. to lie face down on the floor and take
off all of her clothes. He put a rag in T.G.’s mouth and taped it in
place by wrapping duct tape around her head. Defendant
threatened to cut off T.G.’s right arm with a chainsaw.

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Defendant proceeded to sexually abuse T.G. in the garage. First,
defendant put his fist up her vagina. He then inserted a flashlight
in T.G.’s vagina and tried to insert it in her anus. Next, defendant
raped T.G. by inserting his penis in her vagina, but he stopped
before ejaculating.

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Defendant took T.G. back into the house and continued to threaten
T.G., stating, “you’re going to pay for what you did to me,” and
“You’re dying tonight.” Defendant asked T.G. if she wanted to say
goodbye to anyone.
Defendant put T.G. in the backseat of the family car, face down,
completely naked. He bound her feet together at the ankles and
tied her feet to her wrists with rope. Defendant drove toward
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Sacramento.

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Eventually, defendant reached back and removed the duct tape
from T.G.’s head and the gag from her mouth, tearing out pieces of
hair in the process. As they got closer to a snowy area, defendant
pulled off the road and got in the back seat with T.G. He forced
her to orally copulate him. He ejaculated in T.G.’s mouth and told
her to swallow it. T.G. cooperated because she was “scared to
death for [her] life.” At that point, defendant allowed T.G. to get
dressed and join him in the front seat of the car. However, he tied
her hands and feet together to prevent her from doing “something
stupid up front.”

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Now that T.G. was sitting upright in the seat, she saw that they
were close to Lake Tahoe. It was after 5:00 a.m. As they drove
toward Emerald Bay, defendant said, “I’m obviously going to have
to end my life today.” He told T.G. that she would have to give
something up, like a finger or a hand, so that she would “always
remember what [she had done] to [defendant].” When they
reached an area called Sugar Pine Camp, defendant parked the car
and unsuccessfully tried to kill himself with a hunting bow.
Around daylight, defendant drove out of the campground to a small
market. He left T.G. in the car while he brought a pack of
disposable razors and a banana and bottle of water for T.G.
Defendant told T.G. that he was going to take her home, but
changed his mind and drove back to the campground. He said, “I
can’t go home, I’ll go to jail . . . there’s a warrant for me, I can’t
wait for that.”

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Defendant and T.G. sat in the campground while defendant tried to
kill himself with a disposable razor. He also placed a plastic bag
over his head. These attempts at suicide also failed. According to
T.G., defendant appeared to realize that he did not want to kill
himself. He started toward home again and T.G. encouraged him.
As they were driving, defendant cried and apologized to T.G. for
causing her so much pain over the years.

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Defendant Turns Himself In:

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Back in Stockton, D.G, one of defendant’s and T.G’s sons,
knocked at Gantt’s door between 7:30 and 8:00 a.m. He told Gantt
that his mother was gone. Gantt and his adult son hurried to the
Gill residence. Finding parts of the house in disarray, signs of
forced entry, the family car missing, the outside telephone jack
removed, and defendant’s car parked around the corner, Gantt and
his son called the police.

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Detective Robert Molthen questioned the children, D.G. and C.G.,
about what had happened the night before. D.G. told Molthen that
he had heard a commotion or arguing in the middle of the night.
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During the interview with D.G., Molten [sic] also learned about a
prior incident of abuse. D.G. told the detective that when he was
five, he had seen defendant push T.G. onto a couch and throw
things at her.

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Defendant phoned home while Detective Molthen was at the Gill
residence. Molthen told defendant to go to the nearest police
station. Defendant allowed Molthen to speak with T.G. Molthen
asked T.G. if she was okay and she responded, “I don’t think so.”
Molthen then asked T.G. if she was being held against her will, and
she said, “[N]o.”
A few minutes later, defendant arrived at the police station in
Jackson. Defendant was still talking with Detective Molthen on
the cell phone when he told Jackson Police Officer Curt Campbell
that the Stockton police were looking for him. Molthen talked
with Campbell on defendant’s cell phone and told Campbell to
detain defendant and T.G. Molthen, his partner Detective Eduardo
Rodriguez, and two other officers headed for Jackson.
Meanwhile, Officer Campbell instructed defendant to sit on a
bench outside the police station. Campbell noticed fresh and dried
blood on defendant’s neck. When he asked defendant how the
injury occurred, defendant did not respond. Campbell also spoke
with T.G., who was sitting in the front passenger seat of the car.
T.G. told Campbell that defendant cut his neck with the blade from
a Bic razor. Campbell also noticed that T.G. had a bloody lip.
T.G. told him that defendant had hit her. Campbell retrieved a
plastic bag from the car that contained the razor blade and duct
tape with brown hair attached to it.

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Paramedics arrived and began to treat defendant’s and T.G.’s
injuries. T.G. stated to the paramedics or Campbell that defendant
had raped her.

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After the Stockton police officers arrived in Jackson, Campbell
gave the plastic bag to Detective Mark Reynolds. The bag
contained a 12-foot length of rope in addition to the razor blade
and duct tape. Reynolds and another officer transported defendant
back to Stockton in their car. They did not question defendant
during that trip.

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T.G.’s Pretrial Statements:

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Detective Molthen interviewed T.G. for approximately 30 minutes
in the back seat of his police car before they left Jackson. He and
Detective Rodriguez continued to interview her during the drive
from Jackson to the emergency room at San Joaquin County
General Hospital in Stockton.

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At the hospital, Rodriguez went through the Adult/Adolescent

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Sexual Assault Examination questionnaire with T.G., writing down
her responses. At no time did T.G. indicate that she had consented
to the sexual acts she listed on the form. Under the section marked
“assault history,” T.G. indicated that she had been assaulted that
day by defendant. In the section marked “methods employed by
assailants,” T.G. indicated that defendant had: (1) used a flashlight
as a weapon during the sexual assault; (2) threatened to kill her; (3)
punched and kicked her; (4) grabbed, held, and pinched her; (5)
physically restrained her with tape; and (6) caused her injuries
including a fat lip, a bruised left arm, a bruised right knee, a
bruised left eye and overall body pain. In the section of the form
marked “acts described by patient,” T.G. responded that defendant
had penetrated her vagina with his penis, his finger and a
flashlight. She also stated that defendant had tried to penetrate her
anus with the flashlight.. T.G. responded that she had orally
copulated defendant and he had ejaculated in her mouth.

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Later in the evening, T.G. met for five hours with Susan Sixkiller,
a victim advocate with the San Joaquin County District Attorney’s
Office. T.G. told Sixkiller that defendant had abducted her from
the house the night before, thrown her into a car, and raped her.
T.G. never stated or implied that the acts were committed with her
consent. She also told Sixkiller that defendant had bound her with
duct tape around her wrists, head and hair. T.G. described
defendant as having a glazed-over, evil look in his eyes that she
had never seen before.

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Ten days after the incident, T.G. spoke with Deputy District
Attorney Michael Mulvihill about the case. T.G. agreed to a taped
interview although she was under no obligation to do so. T.G. told
Mulvihill that defendant had started abusing her physically in
March 1993, a month after they were married. At no time during
the interview did T.G. tell Mulvihill that she had consented to any
of the sexual acts that occurred on the morning of February 1,
2004.

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Defendant’s Pretrial Statements:

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After they returned from the hospital, Detectives Molthen and
Rodriguez interviewed defendant at the police station. At the start
of the interview, defendant told the detectives that they could ask
him any question they wanted, but he was “not going to be very
forthcoming.” He admitted that he “flipped out” when T.G. asked
him to leave the house and that he “did her wrong.” However,
defendant stated multiple times that it was unfair for her to kick
him out of the house. Defendant indicated that he had wanted to
resolve things with T.G. that night and “couldn’t handle it” when
she stopped answering the telephone.

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Defendant stated that he would not talk about the specifics of what
happened because he did not want “to put it together” for the
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police. Defendant told Molthen and Rodriguez that he “left a
really wide trail” that night and admitted that he “was one hundred
percent wrong.” He continued, “[Y]ou guys got the story and
anything I add to it is just going to screw me even more.” Later,
defendant added, “The whole picture is there, you know it as well
as I do.”

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The detectives continued to question defendant about specifics.
When Rodriguez suggested that defendant’s silence about the
details of what happened might cause people to think that he was
trying to get away with his crimes, defendant responded that he
would, “be happy to corroborate [T.G.’s] deposition so that the
kids [would not] have to participate.” Defendant told Molthen and
Rodriguez that “[T.G.] [was] an honest person . . . and uh . . . she
gives it straight up.”
Eventually, defendant described details of the events of the night
before. He told the detectives about: (1) parking his car down the
street from the house so that T.G. and the neighbors would not
know he was there; (2) borrowing a screwdriver from a friend’s
house so that he could open the telephone box; (3) disconnecting
the telephone and calling from a nearby pay phone to make sure the
line was dead; (4) returning to the house and trying to break down
the front door; (5) removing the screen and entering through a
window on the side of the house; (6) screaming at T.G., saying
“this is what [you] get;” (7) pushing T.G. around and hitting her in
the bedroom; (8) dragging T.G. by her arm or hair into the garage;
(9) tying her up; (10) forcing her to have sex and sticking the
flashlight into her vagina; (11) threatening to cut off her body
parts; (12) putting a gag in her mouth; (13) using the computer
while T.G. lay face down on the carpet; (14) putting T.G. face
down in the back seat of the car, hog-tying her, and driving away to
get out of the county; and (15) having T.G. orally copulate him. At
the end of the interview, defendant stated, “I’ve been honest with
you, straight up.” He was comfortable with the fact that he had
corroborated T.G.’s description of what had happened.

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Defendant’s Testimony:
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At trial defendant testified that he never forced T.G. to have sex
against her will. He explained that he and T.G. “Had an agreement
that [they] would try anything.” According to defendant, they
trusted each other not to hurt the other and if T.G. ever said “uhuh” or “stop,” defendant would immediately stop what he was
doing. Defendant testified that the sex acts that occurred on
February 1, 2004, were “the same sexual things” that they had
“always done.” He stated that he and T.G. often inserted objects
into each other, took joy rides, had sex in different places, ripped
clothes off each other, and had sex out in the warm sun. Defendant
testified that they engaged in acts of bondage in the garage and the
rope found in the Volvo was purchased for that purpose.
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Defendant acknowledged that he was angry and yelled at T.G.
when he found her trying to make a phone call from their bedroom
early on the morning of February 1, 2004. He cried after striking
her and they exchanged “forgiveness.” Defendant testified that
while he and T.G. were talking, she started touching him in a
sexual manner. According to defendant, they went to the garage to
engage in a typical sexual game. Defendant stated that T.G. did a
striptease for him, and consented to being gagged and tied up. He
maintained that she consented to the subsequent sexual acts and to
leaving the house with him for a “joy ride.”
When questioned about his statements to police, defendant testified
that he “just told [the detectives] what they wanted to hear”
because he was frustrated, tired, hungry, and “just wanted it to be
over.” He denied coercing T.G. into testifying in a certain way.

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T.G.’s Testimony:
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T.G. testified for the defense, stating that defendant did not force
her to go anywhere with him, did not force her to have sex against
her will, and did not threaten her in anyway on February 1, 2004.

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(Slip Op. at p. 3-15.)
III. PROCEDURAL HISTORY

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After a jury trial, Petitioner was convicted of the charges outlined in supra Part I.

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Petitioner appealed to the California Court of Appeal, Third Appellate District. Petitioner raised

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several claims to the California Court of Appeal, including Claim I-III that he raises in his

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amended federal habeas petition. The California Court of Appeal affirmed the judgment on

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January 22, 2008 in a written opinion. Petitioner filed a petition for review to the California

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Supreme Court which included Claims I-III that he raises in his amended federal habeas petition.

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The California Supreme Court summarily denied the petition for review on April 30, 2008.

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Subsequently, Petitioner filed a state habeas petition in the Superior Court of California,

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County of San Joaquin in which he raised Claim IV that he raises in his amended federal habeas

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petition. The Superior Court denied the state habeas petition on April 27, 2009 in a written

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decision. Petitioner’s state habeas petitions to the California Court of Appeal and the California

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Supreme Court which also raised Claim IV were each summarily denied.
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Petitioner filed a federal habeas petition on March 18, 2009. He subsequently filed an

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amended federal habeas petition on December 28, 2009. Respondent answered the amended

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federal habeas petition on June 9, 2010. On July 2, 2010, Petitioner filed his traverse.

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IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state

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court can only be granted for violations of the Constitution or laws of the United States. See 28

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U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v.

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Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

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Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S.

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320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim

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decided on the merits in the state court proceedings unless the state court’s adjudication of the

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claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,

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clearly established federal law, as determined by the Supreme Court of the United States; or (2)

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resulted in a decision that was based on an unreasonable determination of the facts in light of the

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evidence presented in state court. See 28 U.S.C. 2254(d).

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As a threshold matter, this Court must “first decide what constitutes ‘clearly established

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Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,

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538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’

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under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court

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at the time the state court renders its decision.’” Id. at 71-72 (citations omitted). Under the

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unreasonable application clause, a federal habeas court making the unreasonable application

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inquiry should ask whether the state court’s application of clearly established federal law was

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“objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal

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court may not issue the writ simply because the court concludes in its independent judgment that

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the relevant state court decision applied clearly established federal law erroneously or incorrectly.
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Rather, that application must also be unreasonable.” Id. at 411. Although only Supreme Court

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law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in

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determining whether a state court decision is an objectively unreasonable application of clearly

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established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (“While only

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the Supreme Court’s precedents are binding . . . and only those precedents need be reasonably

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applied, we may look for guidance to circuit precedents.”).

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The first step in applying AEDPA’s standards is to “identify the state court decision that

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is appropriate for our review.” See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).

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When more than one court adjudicated Petitioner’s claims, a federal habeas court analyzes the

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last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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V. ANALYSIS OF PETITIONER’S CLAIMS

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A. Claim I

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In Claim I, Petitioner argues that the trial court violated his due process and fair trial

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rights when it denied a defense motion to disqualify the district attorney from prosecuting this

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case. Petitioner argues that the district attorney’s office had a personal bias towards him. The

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last reasoned decision on this Claim was from the California Court of Appeal on direct appeal

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which stated the following:

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Before trial, defendant moved to disqualify the entire San Joaquin
County District Attorney’s Office from prosecuting his case and to
appoint the Attorney General to assume prosecutorial duties in its
stead. [FN 3] Defendant argued that two deputy district attorneys
– Michael Mulvihill and Kristine Reed – “ha[d] taken a personal
interest in the case and ha[d] made a concerted effort to influence
the testimony of the alleged victim.” Defendant maintained that
after T.G. informed them that she consented to the acts charged,
Mulvihill and Reed “responded . . . by threatening her, demeaning
defense counsel and making other inappropriate statements.”
Citing this conduct, defendant asserted that a conflict of interest
existed which made it unlikely “that [he would] receive a fair
trial.” The court denied the motion. On appeal, defendant
contends that “Deputy District Attorneys Mulvihill and Reed
conducted a pretrial interview of [T.G] in which she was misled as
to what was in her best interests and that of her family, resulting in
a conflict of interest that makes it unlikely that [defendant]
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received a fair trial.” There is no merit in defendant’s contention.
[FN 3] Defendant acknowledged that although he sought recusal
of the entire San Joaquin County District Attorney’s Office in his
motion in the trial court, his argument on appeal “focuses on the
actions of the two deputies and compels the conclusion that they
should have been recused from the case, requiring reversal.

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A. T.G’s Pretrial Interview At The District Attorney’s Office:
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Defendant’s claim of conflict arises from Mulvihill’s and Reed’s
meeting with T.G. and her father at the district attorney’s offices on
February 10, 2004. [FN 4] Mulvihill testified that he spoke with
T.G. informally before he and Reed conducted the recorded
interview that the prosecution played for the jury at trial. Mulvihill
stated at the start of the recorded interview, “[W]e talked for about
an hour with you and your dad downstairs, just about, not about the
facts or anything right? We were just talking about general . . . .
[¶] . . . [¶] [p]rocedures and what’s going on in the case right now.
It’s my understanding that you’re up here today of your own free
will and you don’t . . . you [sic] freely volunteering to talk to . . .
us. We’re not forcing you to, is that right?” T.G. responded,
“That’s correct.”
[FN 4] Defendant also separately argues, after the fact, that the
manner in which District Attorney Reed questioned him at trial
“revealed a deep personal bias against [defendant] that reinforced
the fact that the trial court should have disqualified both her and
Mulvihill prior to trial.” We address this issue post.
Defendant filed T.G’s handwritten notes about the informal
meeting as an exhibit in support of his motion to disqualify, T.G.’s
notes read:
“*I was advised not to speak with the public defender
“*I was told public defender may show up at my door calling
himself PD – I need to be careful
“*I was told the public defender will ‘twist my words’ in court
“*I was told I had no rights as [defendant’s] wife to do anything
regarding this case
“*I was told that I had better hope that [defendant] takes the D.A.’s
first offer because they would just keep adding time if he did not
“*I stated that I do not want our boys [D.G. and C.G.] to be put on
the [witness] stand – Mr. Mulvihill told me that if they had to, they
would double [defendant’s] time
“*I stated I did not want the [criminal protective order”

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Mulvihill also prepared a memorandum of his informal meeting
with T.G. and her father on February 10, 2004, which differed from
T.G.’s account. Mulvihill indicated that he “explained the criminal
procedure process (arraignment, preliminary hearing, arraignment
on the information, pre-trial conference, readiness conference and
trial).” He also “explained [their] offers and how they are arrived
11

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3
4
5
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7
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9
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at and how they go up usually after each appearance.” After T.G.
stated she wanted to help defendant, Mulvihill spoke at length
emphasizing that it was the District Attorney’s Office, and not her,
that filed charges against defendant, but they wanted to hear
whatever she had to say.
Mulvihill testified that he told T.G. that “she [had] the right to
speak with and not speak with whoever [sic] she [wanted],” and
that his office was “only interested in the truth.” He told her that
she could talk to the defense attorney or his investigator but did not
have to talk with them. Mulvihill “informed her they have
different interests and in [his] experience often twist the statements
of witnesses to suit their needs.” However, Mulvihill assured T.G.
that he would not hold it against her if she chose to speak with the
defense team.
When T.G. asked that the criminal protective order be lifted,
Mulvihill explained his opposition. He also informed T.G. that she
could attend at the next court appearance and explain her position
to the judge.

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14
15
16
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20
21
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23
24

Section 1424 governs motions to disqualify the prosecution, and
states in pertinent part that, “[t]he motion may not be granted
unless the evidence shows that a conflict of interest exists that
would render it unlikely that the defendant would receive a fair
trial.” (§ 1424, subd. (a)(1).) The statute replaces the earlier rule
announced in People v. Superior Court (Greer) (1977) 19 Cal.3d
255, 266, 267, 269, which authorized recusal based on the mere
appearance of conflict. (People v. Breaux (1991) 1 Cal.4th 281,
294; People v. Lopez (1984) 155 Cal.App.3d 813, 824.) Section
1424 differs from the rule in Greer “in that it does not specify
whether the disqualifying conflict must be ‘actual’ or ‘apparent’
but requires that it be ‘of such gravity as to render it unlikely that
defendant will receive a fair trial unless recusal is ordered.’”
Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 199
(Millsap), quoting People v. Connor (1983) 34 Cal.3d 141, 147
(Connor).) In other words, section 1424 “does not allow
disqualification because participation of the prosecutor would be
unseemly, appear improper, or even reduce public confidence in
the criminal justice system. An actual likelihood of prejudice to
defendant must be shown. [Citation.]” (Millsap, supra, at p. 200.)
To prevail in a motion to disqualify the prosecution, defendant
must satisfy a two-part test: (1) whether a conflict of interest
exists; and (2) whether the conflict is “so grave as to render it
unlikely that defendant will receive fair treatment. [Citation.]”
(People v. Eubanks (1996) 14 Cal.4th 580, 594 (Eubanks).) The
burden of persuasion is on the party seeking recusal. (See People
v. Hamilton (1988) 46 Cal.3d 123, 140.)

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26

“Our review involves both the substantial evidence test and
examination for abuse of discretion. Factual issues are resolved
12

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2
3

under the substantial evidence test; whether there is substantial
evidence to support factual determinations reached by the trial
court. [Citations.] Once the pertinent factual issues are settled, the
question whether the trial court’s ruling should be upheld is
determined under the deferential abuse of discretion
test. [Citations.]” (Millsap, supra, 70 Cal.App.4th at p. 200.)

4
B. Analysis
5
6
7
8
9
10
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Here, the trial court made no findings on questions of evidentiary
fact – that is, whether there was a conflict of interest and whether
defendant was unlikely to receive a fair trial. (Eubanks, supra, 14
Cal.4th at p. 594.) The accounts offered by T.G. and Mulvihill
differed in the details of what was said in their informal meeting.
We will not reweigh the court’s implicit determination that
defendant failed to sustain his burden of persuasion on the two-part
test. Mulvihill’s description of the informal meeting with T.G.
supports a conclusion that he was simply informing T.G. about the
criminal process and did not demonstrate a conflict of interest or
bias. Accordingly, we conclude the court did not abuse its
discretion in denying the motion to disqualify Mulvihill, Reed or
the entire San Joaquin County District Attorney’s office.

12
13
14

(Slip Op. at p. 15-20.)
At the outset, to the extent that Petitioner relies on state law and the California

15

Constitution to support this Claim, it is not cognizable on federal habeas review. See Estelle v.

16

McGuire, 502 U.S. 62, 71-72 (1991).

17

“Due process guarantees that a criminal defendant will be treated with that fundamental

18

fairness essential to the very concept of justice.” United States v. Valenzuela-Bernal, 458 U.S.

19

858, 872 (1982) (internal quotation marks and citation omitted). Thus, “[i]n order to declare a

20

denial of it we must find that the absence of that fairness fatally infected the trial; the acts

21

complained of must be of such quality as necessarily prevents a fair trial.” Id. (internal quotation

22

marks and citation omitted).

23

Prosecutors are “traditionally accorded wide discretion . . . in the enforcement process.”

24

Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). Nonetheless, in Marshall, the Supreme Court

25

stated that, “[a] scheme injecting personal interest, financial or otherwise, into the enforcement

26

process may bring irrelevant or impermissible factors into the prosecutorial decision and in some
13

1

contexts raise serious constitutional questions.” Id. at 249-50. Additionally, the United States

2

Supreme Court has recognized that:

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6
7
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[a criminal prosecutor] is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he
is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilty shall not escape or innocence
suffer. He may prosecute with earnestness and vigor – indeed, he
should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one.

9
10
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Berger v. United States, 295 U.S. 78, 88 (1935).
Nonetheless, the standards of neutrality for prosecutors are not as demanding as those

12

applied to judicial or quasi-judicial officers. See Young v. United States ex rel. Vuitton et Fils

13

S.A., 481 U.S. 787, 810 (1987). Unlike judges who must always remain impartial, prosecutors

14

are partisan advocates who are permitted to be zealous in their enforcement of the law. See

15

Marshall, 446 U.S. at 248-50. Thus, a petitioner claiming that a prosecutor bore a personal bias

16

against him must demonstrate that the fairness of his trial was affected and that he was thus

17

prejudiced by the prosecutor’s involvement. See Dick v. Scroggy, 882 F.2d 192, 196-97 (6th

18

Cir. 1989) (“[W]e are not persuaded that Mr. Dick’s prosecution by a Commonwealth Attorney

19

who may have been less than disinterested constituted an irregularity ‘sufficiently fundamental’

20

to justify our setting aside the conviction in this case.”); Gallo v. Kernan, 933 F. Supp. 878, 885

21

(N.D. Cal. 1996) (denying habeas relief where it was claimed that prosecutor demonstrated an

22

improper personal and emotional bias against petitioner by taking unprecedented actions,

23

including visiting the victim in the hospital, attending the victim’s divorce proceedings and

24

taking positions adverse to petitioner, that the prosecutor had not taken in similar cases), aff’d,

25

141 F.3d 1175 (9th Cir. 1998).

26

In his amended federal habeas petition, Petitioner argues that the district attorneys had a
14

1

conflict of interest in this case due to their personal interest. Petitioner failed to make a showing

2

that the district attorneys harbored such extreme personal bias or prejudice against Petitioner

3

such that his due process rights were violated. The prosecutors proceeded against Petitioner after

4

statements implicating Petitioner in the charged crimes came not only from Petitioner’s wife, but

5

also from Petitioner himself in his statements to the police. Therefore, the prosecutors received

6

information from multiple sources regarding the circumstances that took place during January 31

7

- February 1, 2004 which gave rise to the charges against Petitioner. As the United States

8

Supreme Court has noted, the prosecutor is allowed to be zealous in his enforcement of the law.

9

See Marshall, 446 U.S. at 248-50. Petitioner failed to demonstrate that an alleged conflict of

10

interest on the part of the prosecutor prevented him from receiving a fair trial. Accordingly, the

11

state appellate court’s denial of this Claim was not an unreasonable application of clearly

12

established federal law nor did it result in a decision based on an unreasonable determination of

13

the facts. Therefore, Petitioner is not entitled to federal habeas relief on Claim I.

14

B. Claim II

15

In Claim II, Petitioner argues that the prosecutor committed misconduct during the trial

16

which violated his due process, fair trial and confrontation rights. The last reasoned decision on

17

this Claim came from the California Court of Appeal on direct appeal which stated the following:

18
19

Defendant argues that he is entitled to reversal because Deputy
District Attorney Reed committed misconduct when she asked
defendant during cross-examination whether he had cursed at her
during trial. There was no misconduct.

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22
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24
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“‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “‘A prosecutor’s . . . intemperate
behavior violates the federal Constitution when it comprises a
pattern of conduct “so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due
process.”’” [Citations.] Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves “‘“ the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill
(1998) 17 Cal.4th 800, 819.)

26
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Here the claim of misconduct involves Reed’s cross-examination
of defendant. In general, the prosecution has broad latitude when
cross-examining a defendant. “‘When a defendant voluntarily
testifies, the district attorney may fully amplify his testimony by
inquiring into the facts and circumstances surrounding his
assertions, or by introducing evidence through cross-examination
which explains or refutes his statements or the inferences which
may necessarily be drawn from them. [Citation.] A defendant
cannot, by testifying to a state of things contrary to and inconsistent
with the evidence of the prosecution, thus indirectly denying the
testimony against him, but without testifying expressly with
relation to the same facts, limit the cross-examination to the precise
facts concerning which he testifies. [Citation.]’ [Citation.]”
(People v. Chatman (2006) 38 Cal.4th 344, 382.) Although a
prosecutor may not intentionally elicit inadmissible testimony,
“merely eliciting evidence is not misconduct.” (Id. at pp. 379380.)
Reed’s questions to defendant were relevant and evinced an
attempt to impeach defendant’s testimony on cross-examination.
Moreover, nothing in Reed’s questioning was “‘“‘“so egregious
that it infect[ed] the trial with such unfairness as to make the
conviction a denial of due process.”’” [Citations.]’” (Hill, supra,
17 Cal.4th at p. 819.) We recount the exchange in its entirety:

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Q. [by Reed]: Now, when you spoke with the detectives, you told
them that there was a lot of bad stuff that happened that day on
February 1st of 2004?
A. [Defendant]: There was.
Q. You – your testimony is that the only thing that was bad was
you hitting your wife?
A. No. Cursing and screaming. And saying mean things to her.
And hitting her.
Q. All right.
A. We don’t allow that in our home, period.
Q. So you don’t curse?
A. No. We do not curse in our home.
Q. Do you curse at all?
A. Um, having been incarcerated for a year and a half with
criminals, every third word I hear is a curse word.
MS. REED: Objection. Non-responsive.
THE COURT: Sustained.
THE WITNESS: It’s pretty hard not to now.
THE COURT: So your answer is yes, you do curse?
THE WITNESS: What’s the question?
MS. REED: Q: Whether you curse.
A. Whether I curse now?
Q. Yes.
A. I have used vulgarity, yes, I have used curse words
lately. [¶] But no, we don’t use curse words at our home.
Q. So since February 1st of 2004, you now curse?
16

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A. A little bit, yeah. Too bad. The environment that you stuck me
in.
Q. All right. Haven’t you cursed at me numerous time when we
have been in court before?
A. I don’t recall.
Q. Said things like, ‘Fuck you,’ and, ‘Bitch,’ things like that?
[DEFENSE COUNSEL]: I’m going to object.
THE WITNESS: I don’t recall.
[DEFENSE COUNSEL]: Relevance, Judge.
THE COURT: Overruled.
THE WITNESS: Do you have – do you have some evidence?
MS. REED: Objection.
[DEFENSE COUNSEL]: Is Ms. Reed making herself a witness
now, judge?
THE WITNESS: Wow.
THE COURT: Wait, wait, wait. Stop. You can answer the
question, Mr. Gill. Have you said that?
THE WITNESS: What’s the question?
[DEFENSE COUNSEL]: I object.
THE COURT: Why don’t you re[-]ask the question.
MS. REED: Q. Since February 1st of 2004, have you cursed?
A. I have already answered that question.
THE COURT: The next question about you.
MS. REED: Q. Have you cursed at me since February 1st?
A. I have already answered that.
THE COURT: No, you didn’t.
THE WINTESS: Do you want to do a readback?
THE COURT: No, I don’t.
MS. REED: Q. Have you cursed at me since February 1st of 2004?
A. I don’t think so, no. [¶] And if you would have heard me
curse, it may have been in discussing something else.
Q. No, I’m talking about court proceedings when you’ve been in
custody in Department 25, and you have mouthed the words ‘fuck
you’ repeatedly at me during those court proceedings, multiple
court proceedings, also the word ‘bitch.’
A. Do you read lips now?
Q. Sir, I’m asking you whether or not you did that, yes or no?
A: I may have said something. Are you a lip reader now?
THE COURT: Mr. Gill, if you could recall my admonition that the
attorneys ask the questions –
THE WITNESS: The words that I said –
THE COURT: – and the witnesses give the answers.
THE WITNESS: I don’t know whether I did nor didn’t.”

23

Based on this record there was no misconduct.

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25
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(Slip Op. at p. 32-36.)
A criminal defendant’s due process rights are violated if prosecutorial misconduct renders
a trial “fundamentally unfair.” See Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) (citing
17

1

Darden v. Wainright, 477 U.S. 168, 183 (1986)). A habeas petition will be granted for

2

prosecutorial misconduct only when the misconduct “so infected the trial with unfairness as to

3

make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (internal

4

quotation marks and citation omitted). A claim of prosecutorial misconduct is analyzed under

5

the prejudice standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Karis v.

6

Calderon, 283 F.3d 1117, 1128 (9th Cir. 2002) (stating that a claim of prosecutorial misconduct

7

is analyzed under the standard set forth in Brecht). Specifically, the inquiry is whether the

8

prosecutorial misconduct had a substantial and injurious effect on the jury’s verdict. See

9

Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (finding no prejudice from prosecutorial

10

misconduct because it could not have had a substantial impact on the verdict).

11

The California Court of Appeal did not unreasonable apply clearly established federal

12

law. It articulated the relevant federal standard to determine whether the prosecutor’s actions

13

amounted to misconduct by so infecting the trial with unfairness so as to make the conviction a

14

denial of Petitioner’s due process rights and aptly applied this standard to this case. Furthermore,

15

its decision was not based on an unreasonable application of the facts in the record. It properly

16

outlined the colloquy that took place between Petitioner and Reed during cross-examination and

17

correctly found that the prosecutor’s questions were simply an attempt to impeach Petitioner’s

18

testimony. Therefore, the state appellate court’s decision did not run afoul of the standard

19

articulated in 28 U.S.C. § 2254(d).

20

Petitioner also failed to show that the prosecutor’s questions had a substantial and

21

injurious effect on the jury’s verdict, further warranting denying relief on this Claim. It is worth

22

noting that the jury was specifically instructed that statements made by the attorneys during trial

23

are not evidence and that the jury “must decide all questions of fact in this case from the evidence

24

received at trial and not from any other source.” (See Reporter’s Tr. at p. 1310.) The jury is

25

presumed to have followed these instructions. See Weeks v. Angelone, 528 U.S. 225, 234

26

(2000). Thus, any purported misconduct would be considered harmless as well.
18

1

Petitioner also argues that the prosecutor’s actions violated the Confrontation Clause

2

because through her questioning she acted as a witness whom Petitioner was not given the

3

opportunity to cross-examine. The Confrontation Clause of the Sixth Amendment specifically

4

provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

5

confronted with the witnesses against him.” U.S. CONST ., amend. VI. The “witnesses” to which

6

the Confrontation Clause refers include not only the witnesses testifying in court, but also certain

7

out of court declarants. See Crawford v. Washington, 541 U.S. 36, 50-51 (2004). Statements by

8

the prosecutor during trial were not evidence, as the jury was so instructed. For that reason, the

9

prosecutor’s questions did not invoke the Confrontation Clause of the Sixth Amendment.2

10

Therefore, for the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claim II.

11

C. Claim III

12

In Claim III, Petitioner argues that the trial court violated his rights to due process and

13

protection against self-incrimination when it admitted his statement to police which was

14

allegedly extracted during an illegal police interrogation. The last reasoned decision on this

15

Claim was from the California Court of Appeal on direct appeal which stated the following:

16

Defendant argues that the court violated his constitutional rights
when it denied his motion to suppress the statements he made to
police during the February 1, 2004, interview. Defendant contends
that the detectives ignored his multiple invocations of his Miranda
rights [FN 5] and used overbearing tactics to extract an involuntary
confession. We conclude that the court properly determined that
defendant voluntarily waived his Miranda rights.
[FN 5] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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19
20

A. Invocation of Miranda Rights Must Be Unambiguous:
21
“‘[U]nder the familiar requirements of Miranda, designed to assure
protection of the federal Constitution’s Fifth Amendment privilege
against self-incrimination under “inherently coercive”

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24
25
26

2

In his traverse, Petitioner argues that his Confrontation Clause argument requires de
novo review because the state courts never reached the merits of this argument. Even
assuming arguendo that de novo review does apply to this argument, Petitioner still would not be
entitled to federal habeas relief on his Confrontation Clause argument within Claim II for the
reasons described above.
19

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5
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7

circumstances, a suspect may not be subjected to custodial
interrogation unless he or she knowingly and intelligently has
waived the right to remain silent, to the presence of an attorney,
and to appointed counsel in the event the suspect is
indigent.’ [Citation.] ‘Once having invoked these rights, the
accused “is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.’” [Citations.] . . . [¶] If a suspect
indicates ‘in any manner and at any stage of the process,’ prior to
or during questioning, that he or she wishes to consult with an
attorney, the defendant may not be interrogated. [Citations.]”
(People v. Crittenden (1994) 9 Cal.4th 83, 129 (Crittenden), italics
omitted.)

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10
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The defendant’s request for counsel must be unambiguous. (Davis
v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371]
(Davis).) “‘[A] statement either is such an assertion of the right to
counsel or it is not.’ [Citation.] Although a suspect need not
‘speak with the discrimination of an Oxford don,’ [citation], he
must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” (Ibid.)
Thus, in Davis, the United States Supreme Court rejected the
defendant’s claim that he invoked his right to counsel by saying, an
hour and a half into the interview, “Maybe I should talk to a
lawyer.” (Id. at pp. 455, 462; see also Crittenden, supra, 9 Cal.4th
at pp. 124, 130 [“Did you say I could have a lawyer?” was not an
unequivocal request for counsel]; People v. Johnson (1993) 6
Cal.4th 1, 27, 30 [“[M]aybe I ought to talk to my lawyer, you might
be bluffing, you might not have enough to charge murder” was not
an unequivocal request for counsel].)

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21

When reviewing defendant’s challenge to the trial court’s denial of
his motion to suppress on the grounds the statements were obtained
in violation of Miranda, “we defer to the trial court’s resolution of
disputed facts, including the credibility of witnesses, if that
resolution is supported by substantial evidence. [Citation.]
Considering those facts, as found, together with the undisputed
facts, we independently determine whether the challenged
statement” was unlawfully obtained. (People v. Gurule (2002) 28
Cal.4th 557, 601.)

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26

Here, defendant asserts he invoked his right to remain silent 15
times. In general, these were instances where Rodriguez or
Molthen asked defendant a specific question and defendant
responded “I can’t answer that,” or “I really can’t say anything
about it,” or “there’s nothing I can say,” or “I’m not going to
answer that question,” or “if you guys can’t put it together . . . , I’m
not going to put it together for you.” In each instance, defendant
continued to answer other questions about the events of February 1,
20

1
2

2004. For this reason, the circumstances of this case differ from
Michigan v. Mosley (1975) 423 U.S. 96, 103-04 [46 L.Ed.2d 313,
322] where defendant declined to answer any questions about the
robberies at issue in the case.

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Defendant acknowledges that his purported invocation of the right
to remain silent “may have appeared equivocal at some points.”
Citing People v. Wash (1993) 6 Cal.4th 215, 238 (Wash), he
maintains that a suspect’s invocation of rights “does not have to be
unequivocal.” But the court in Wash found that similar language –
“‘I don’t know if I wanna talk anymore since it’s someone killed,
you know’” – was an expression of “uncertainty as to whether he
wished to continue.” (Ibid.) After considering the matter,
defendant in Wash clearly stated he wished to continue with the
interrogation. (Id. at p. 239.)
Here, in February 2005 Judge Van Oss examined the written
transcript of defendant’s statement line by line and found that
“[defendant] never made it clear that he wanted to invoke his
rights, or at least not to the point it was clear to the officer anyway.
And he never – even where he might have made it clear, even
where – I think I mentioned one of these earlier where it looked to
me like he probably had invoked his rights, he reinitiated on his
own the conversation. It wasn’t the police that did it.” The court
observed that defendant “indicat[ed] a desire” through the
interview to “clear this up,” while at the same time realizing that
“he probably [was] digging a hole for himself.” At another point
during the interview, defendant stated something to the effect of “I
know I’m throwing the Fifth Amendment out the door.” The court
found that “[t]he clear inference of that [statement was] I am
waiving my rights under the Fifth Amendment, and I know I’m
guilty so I don’t care about that.” On independent review, we
reach the same conclusion as the trial court. A reasonable police
officer would not have understood the cited statements to be
invocations of the right to remain silent. (Davis), supra, 512 U.S.
at p. 459 [129 L.Ed.2d at p. 371].)

19
B. A Miranda Waiver and Confession Must be Voluntary:
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26

A Miranda waiver must be knowing, intelligent and voluntary.
(Colorado v. Spring (1987) 479 U.S. 564, 573 [93 L.Ed.2d 954,
965].) There are two distinct dimensions to this requirement:
“‘[F]irst the relinquishment of the right must have been voluntary
in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that Miranda rights have been waived.’” (Ibid., quoting
21

1

Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410,
421].)

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Where, as here, defendant challenges his statements as coerced, we
view the totality of the circumstances surrounding the statements to
determine independently whether the prosecution has met its
burden and proved that the statements were voluntary. (Arizona v.
Fulminate (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315];
People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on
other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th
822, 829.) In making that determination, we consider factors such
as the length of the interrogation, its location, its continuity, and
the defendant’s sophistication, education, physical condition and
emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660
(Williams); In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)
“[A]ny factual findings by the trial court as to the circumstances
surrounding an admission or confession, including “‘the
characteristics of the accused and the details of the interrogation”
[citation],’ are subject to review under the deferential substantial
evidence standard. [Citation.]” (Williams, supra, 16 Cal.4th at p.
660.)
In this case, two different judges reviewed defendant’s interview
with law enforcement and both found his statement admissible.
After reviewing the written transcript, Judge Van Oss rejected
defendant’s claim of coercion. He found that “taking the statement
in context, there’s nothing to indicate that the defendant somehow
didn’t understand what he was doing. Certainly wasn’t in his best
interest, and he knew it wasn’t in his best interest, but he went
ahead and did it anyway because it was his choice. And he had the
right to make that choice . . . .”
Later, at the start of trial in June 2005, Judge Fox entertained a
motion for reconsideration to the extent it involved the review of
the videotape of defendant’s interrogation. She “was not looking
at the content of the statement, because Judge Van Oss ruled on
that. But [she] was looking at the tone and tenor, demeanor, and
body language, to see if there was anything there that would cause
[her] to grant other reconsideration.” She cited the length of the
interrogation, its location, the continuity, and defendant’s physical
condition and “did not see any indication that the officers were
intimidating the defendant, no indication that he was intimidated.
He participated in the interview, at times asking questions on his
own.” Judge Fox also found nothing in defendant’s age, education
or level of intelligence that raised any claim of coercion. Based on
these findings, which are supported by the evidence, we conclude
defendant’s statements were voluntary.
(Slip Op. at p. 21-27.)
As in his state filings, Petitioner raises two issues within this Claim; first he argues that
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the police ignored his right to remain silent on several occasions during the interrogation, and

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second, that the police exploited Petitioner’s unstable psychological state, hunger, fatigue and

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concern for his children in extracting an involuntary waiver of his Miranda rights. Both of these

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issues are considered in turn.

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i. Invocation of Right to Remain Silent

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After being read his Miranda rights at the beginning of the interrogation, Petitioner

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responded that he understood them and began to answer the questions posed to him by the police.

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(See Clerk’s Tr. at p. 844.) Petitioner lists multiple instances in his interrogation where he

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asserts that he invoked his right to remain silent and therefore the interrogation should have

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ceased. Those instances were the following:
RODRIGUEZ: Ok. At some point in the evening you go back to
your house. Can, can you tell us about that?
GILL: Um . . . . the . . . I left a really wide trail. Um, it’s huge.
And if you guys can’t put it together, you know, I’m not going to
put it together for you .
(Clerk’s Tr. at p. 849.)
RODRIGUEZ: Well . . . let me ask you this. How did you end up
with [your wife]? How did [your wife] end up in your car?
GILL: Didn’t . . . . I really can’t say anything about it.
RODRIGUEZ: Cause you don’t want or . . . ?
GILL: I don’t recall most of it. It’s kind of a blur. I feel like I was
. . . I, I don’t know. Um . . .
RODRIGUEZ: We’re, we’re just trying to figure out what
happened.
GILL: I did not plan . . . I’m not going to put a nail in my own
coffin and say, you know, what ever . . . so I have the right not to
say anything.
RODRIGUEZ: That’s true. That’s why I advised you of your
rights.
GILL: Right. You, you came in here and said . . . you . . . and you
said that the kids over heard something. I’m asking you questions
about that. You don’t want to provide an explanation, that’s your
choice. It’s going to be in the court record I guess.
RODRIGUEZ: Yeah. That’s true.
MOLTHEN: Like my partner was saying, Andrew, it’s going to be
your kids up on the stand, providing the information. It’s going to
be [D.G.] and [C.G.] and it’s going to be [your wife]. OK? And
they’re going to provide what, what they say, what they heard,
what they went through.
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GILL: OK.
MOLTHEN: And there’s going to be no side to your story.
GILL: What can I say.
MOLTHEN: Just because . . . we don’t want this report just to
have everything and then come, come down to . . .to your side of
the story and you say, I was on auto pilot.
GILL: There’s nothing I can say.
MOLTHEN: Did you feel what happened last night?
GILL: Huge.

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(Id. at p. 851-52.)

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MOLTHEN: I mean in . . . in the scheme of your life, is this the
worse [sic] thing you have ever done?
GILL: I can’t answer that.
MOLTHEN: Can’t answer that? Is it because you don’t want to or
you don’t think it is?
GILL: Cause I don’t want to.

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(Id. at p. 333.)3

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RODRIGUEZ: Did it at any point, last night, did you force [your
wife] to do anything?
GILL: I’m not going to answer that question.

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(Id. at p. 852.)

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RODRIGUEZ: See, that’s that’s the kind of stuff that we don’t
know. Cause all we’ve had so far is to hear her side of it.
GILL: That’s all. It’s . . . that’s all I need to say about it. I’m . . .
I’m freaked out about it and I, I really fell bad that she is not doing
well right now.
RODRIGUEZ: You feel bad for her or for yourself?
GILL: No, for her.
RODRIGUEZ: OK.
GILL: Me, I don’t, I don’t give a rat’s ass.

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(Id.)

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RODRIGUEZ: See that . . . that’s . . . I, I’ve never met you and
I’m not trying to judge you and I’m not going to judge you. That’s
. . . that’s not my job. Um, but, you know, uh, I’m here just trying
to do a job and . . .
GILL: Anything I say can and will be used against me in a court of
law.

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This section of Petitioner’s statement to police is redacted on the version of the
transcript supplied by the Respondent. Therefore, this colloquy is taken from Petitioner’s motion
to suppress the statement that Petitioner filed in the trial court.
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RODRIGUEZ: Exactly.
GILL: OK. I’m sorry. It is, it is very wide and obvious. You take
that.
MOLTHEN: It’s very obvious?
GILL: I left it. OK. I could have un-did it. I could have put it all
back together.

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(Id. at p. 853.)

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MOLTHEN: You, you know what she told us? She said it was
like being with two different . . . people. Pardon my voice, I have a
cold. She said it was like being with two different people. Her . . .
her . . . her . . . her trip with you last night. She said it was like, at
first she said it was being with a savage and then . . . and then all of
a sudden you slowly changed into the man . . . she married . . . fell
in love with, married and has kids with. It was . . .
GILL: I can’t answer the question.

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(Id. at p. 854.)

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RODRIGUEZ: What, what happened last night, is not that you
don’t remember, you just don’t want to talk about that? Is that fair
to say?
GILL: No. I . . . I remember pictures of justice and . . . I don’t
know why . . . I don’t know.
RODRIGUEZ: You remember going into the house?
GILL: I can’t answer that question.
RODRIGUEZ: Do you remember driving with her?
GILL: Oh yeah.

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(Id. at p. 855.)

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MOLTHEN: I’ve, I’ve driven through Jackson maybe once or
twice in my life so . . . I, I don’t really know.
GILL: And uh . . . you know, you guys got the story and anything I
add to it is just going to screw me even more. Um . . .
RODRIGUEZ: Well, what do you think should happen to you?
What do you think we should do with you?
GILL: I don’t know. I need some help. I hurt inside, and my head
hurts.

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(Id. at p. 860.)
MOLTHEN: There was a coffee table underneath the window that
your two kids discovered. Where there were items on there . . . a
picture frame, I think, a lamp that were knocked over on to the
ground. You know what happened there?
GILL: I don’t know. It, it . . . you could drive a truck through it
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my friends, you figure it out.
(Id. at p. 861.)

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RODRIGUEZ: Unless you tell us something that corroborate [sic]
what she said without us having to, to spoon feed it to you, you
know, that’s going to be up in the air. And like you said she’s a
good person.
GILL: What is the first line of the Miranda? To . . . I’m not so
freakin’ dumb.
RODRIGUEZ: You basically don’t want to say anything that’s
going to implicate you? Is that right?
GILL: I’m not . . . slam the door on myself. I, I don’t understand.
MOLTHEN: Are you hoping to get away with what you did?
GILL: No way.
MOLTHEN: No?
GILL: No.
MOLTHEN: Tell us what you did. It’s as, it’s as simple as that.
We know that you did it. Cause we talked to your wife and we
talked to your children ok. You said you would corroborate what
they said.
GILL: OK. I will sit down and corroborate . . .

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(Id. at p. 862.)

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RODRIGUEZ: Did you have sex with her?
GILL: Yeah.
RODRIGUEZ: Was that with consent?
GILL: I can’t answer that. I don’t know. I think so.

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(Id. at p. 867.)
Petitioner does not argue that he initially waived his right to remain silent. However, the

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police must cease questioning when the person clearly indicates he wants to stop

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answering. Miranda, 384 U.S. at 473-74. In Davis v. United States, 512 U.S. 452, 459 (1994),

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the Supreme Court stated that a suspect must unambiguously request counsel for the

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interrogation to cease. This rule has also been applied to require a suspect to unambiguously

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invoke his right to remain silent before police must cease questioning. See DeWeaver v.

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Runnels, 556 F.3d 995, 1001 (9th Cir. 2009). “[A]t a minimum, such invocation must not be so

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equivocal or unclear that a reasonable officer in light of the circumstances would have

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understood only that the suspect might be invoking his right to remain silent.” United States v.
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Shi, 525 F.3d 709, 729 (9th Cir. 2008) (internal quotation marks and citations omitted) (emphasis

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in original).

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As noted above, the California Court of Appeal determined that a reasonable police

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officer in the light of the circumstances would not have understood Petitioner’s statements listed

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above as invoking his right to remain silent. This conclusion was not an unreasonable

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application of clearly established federal law nor did it result in a decision that was based on an

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unreasonable determination of the facts in the record. Petitioner’s words as detailed above do not

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imply a request to terminate the interview and invoke Petitioner’s right to remain silent. Thus,

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Petitioner’s first argument within Claim III does not merit federal habeas relief.

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ii. Exploitation of Petitioner’s unstable psychological state, hunger, fatigue and
concern for his children

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Next, Petitioner lists several factors that were in play which made his waiver of his

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Miranda rights not voluntary. Petitioner notes that he had been awake for over thirty-four hours

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when the interrogation took place and that he had had nothing to eat and only coffee to drink for

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twenty-four hours leading up to the interrogation. He also notes that the police threatened to put

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his wife and children on the stand if he did not recount his version of events. Finally, Petitioner

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argues that the police delayed Petitioner from receiving medical attention. Based on all of these

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factors, Petitioner argues he could not have given a voluntary waiver of his Miranda rights.

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An interrogation statement must be suppressed when the totality of the circumstances

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demonstrates that the confession was involuntary. See DeWeaver, 556 F.3d at 1002-03 (citing

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Dickerson v. United States, 530 U.S. 428, 434 (2000)). The assessment of the totality of the

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circumstances may include consideration of the length and location of the interrogation;

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evaluation of the maturity, education, physical and mental condition of the defendant; and a

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determination of whether the defendant was properly advised of his Miranda rights. See

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Withrow v. Williams, 507 U.S. 680, 693-94 (1993). The police cannot extract a confession “by

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any sort of threats or violence, (or) . . . by any direct or implied promises, however slight, (or) by
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the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam). “A

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confession accompanied by physical violence is per se involuntary, while one accompanied by

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psychological coercion is not.” See United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir.

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2003).

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The interrogation does not suggest that Petitioner’s waiver of his Miranda rights was

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anything but knowing, voluntary and intelligent. Petitioner was read his Miranda rights at the

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start of the interrogation and he told the police that he understood them. For example, at one

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point during the interview, Petitioner repeated that anything he said could be used against him in

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a court of law. (See Clerk’s Tr. at p. 853.) Thus, Petitioner was clearly aware of the rights that

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he was waiving in speaking to the police during the interrogation. The interrogation transcript

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indicates Petitioner’s awareness of his rights and willingness to speak to the police and his

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purported fatigue and hunger did not make his waiver involuntary. Cf. Shackleford v. Hubbard,

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234 F.3d 1072, 1080 (9th Cir. 2000) (counsel not ineffective for failing to challenge a waiver of

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Miranda rights as involuntary based on defendant’s drug use, fatigue and mental deficiencies

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where evidence demonstrated defendant’s awareness of rights and willingness to speak with

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police). Thus, Petitioner is not entitled to federal habeas relief on this argument as well, and

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Claim III should be denied.

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D. Claim IV

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In Claim IV, Petitioner argues that the preliminary examination was held in violation of

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California Penal Code § 859b because it was not held within ten days of the arraignment thereby

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violating his Constitutional rights. The last reasoned decision on this Claim was from the

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Superior Court of California, San Joaquin County on Petitioner’s state habeas petition which

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stated the following:

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Petitioner contends that the Trial Court lacked subject matter
jurisdiction to try Petitioner because his Preliminary Examination
hearing was held in violation of Penal Code § 859(b) [sic], after the
10-day time limit, and that he did not waive time. The file
indicates that Petitioner was arraigned on Thursday, February 5,
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2004, and his initial Preliminary Examination was set for
Thursday, February 19, 2004.

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California Penal Code § 859b provides, in part: “Both the
defendant and the people have the right to a preliminary
examination at the earliest possible time, and unless both waive
that right or good cause for a continuance is found as provided for
in Section 1050, the preliminary examination shall be held within
10 court days of the date the defendant is arraigned or pleads,
whichever occurs later, . . . The magistrate shall dismiss the
complaint if the preliminary examination is set or continued more
than 60 days from the date of the arraignment, plea, or
reinstatement of criminal proceedings pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2, unless the
defendant personally waives his or her right to a preliminary
examination within the 60 days.” (Emphasis added.) A review of
a 2004 calendar indicates that Monday, February 16, 2004, was a
holiday and the Court was closed. Counting the actual “court
days” from February 5, 2004 to February 19, 2004, reflects that the
Petitioner’s Preliminary Examination hearing was set nine (9) court
days after he was initially arraigned, sufficiently within the
statutory time requirements.

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The Court’s Minute Order from the February 19, 2004, Preliminary
Examination hearing indicates that both “Defendant” and the
“People” waived time to continue the hearing to March 18, 2004.
Petitioner has failed to set forth any facts supporting the allegations
in the Petition with particularity. Vague or conclusory allegations
do not warrant habeas relief. [People v. Duvall (1995) 9 Cal.4th
464, 474, 37 Cal.Rptr2d 259.] Conclusory allegations are
insufficient to constitute a prima facie showing for habeas corpus
relief. [In re Bower (1985) 38 Cal.3d 865; 215 Cal. Rptr. 267, 700
P.2d 1269; People v. Jackson (1980) 28 Cal.3d 264; 168 Cal.Rptr.
603, 618 P.2d 149.] If no prima facie claim for relief is stated, or if
the claims asserted in the petition are procedurally barred, the court
will summarily deny the petition. [People v. Duvall (1995) 9
Cal.4th 464, 475, 37 Cal.Rptr.2d 259.]

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The Petition is DENIED.

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(Resp’t’s Lodged Doc. 8 at p. 1-2.)
The Ninth Circuit has noted that the preliminary hearing itself is not constitutionally

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mandated. See Peterson v. California, 604 F.3d 1166, 1169 (9th Cir. 2010); see also Ramirez v.

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Arizona, 437 F.2d 119, 119-20 (9th Cir. 1971) (per curiam) (“The Federal Constitution does not

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secure to a state court defendant a right to a preliminary hearing.”). Thus, Petitioner’s claim

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appears to only raise an issue of state law that is not cognizable under federal habeas review as
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the preliminary hearing itself is not constitutionally mandated. Furthermore, Petitioner waived

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time at the February 19, 2004 hearing, or within the ten day state designated limit, to March 18,

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2004 at which time the preliminary examination occurred.4 (See Clerk’s Tr. at p. 34.) Thus, for

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the foregoing reasons, Claim IV should be denied.

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VI. PETITIONER’S REQUESTS

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A. Request for Discovery

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Petitioner requests his jail records and the videotape of Petitioner in the interrogation

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room before and during the interrogation. (See Pet’r’s Am. Pet. at p. 73.) Parties to a habeas

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proceeding are not entitled to discovery as a matter of course. See Bracy v. Gramley, 520 U.S.

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899, 904 (1997). Rather, “[a] judge may, for good cause, authorize a party to conduct discovery

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under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Rule 6(a),

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Rules Governing § 2254 cases; see also Bracy, 520 U.S. at 904. Good cause is shown “where

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specific allegations before the court show reason to believe that the petitioner may, if the facts

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are fully developed, be able to demonstrate that he is . . . entitled to relief.” Id. at 908-09. In this

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case, Petitioner fails to show good cause to warrant his request for discovery such that the request

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will be denied.

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B. Request for an Evidentiary Hearing

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Petitioner also requests an evidentiary hearing. A court presented with a request for an

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evidentiary hearing must first determine whether a factual basis exists in the record to support

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petitioner’s claims, and if not, whether an evidentiary hearing “might be appropriate.” Baja v.

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Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166

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4

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Petitioner argues in his Petition that he did not waive time and that the February 19,
2004 minute order is ambiguous. The February 19, 2004 minute order is not ambiguous.
Petitioner relies on the fact that both the “time not waived” and “time waived” boxes are checked
off. However, the “time not waived” check mark is then crossed out. Further illustrating that
there is no ambiguity is the fact that the minute order does not check off which party did not
waive time, but checks off both the Defendant and the People as specifically waiving time.
(See Clerk’s Tr. at p. 34.) Petitioner’s after the fact declaration that he did not waive time does
not cast doubt on his waiver as indicated on the minute order.
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(9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has

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presented a “colorable claim for relief.” Earp, 431 F.3d at 1167 (citations omitted). To show

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that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would

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entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation

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marks and citation omitted). In this case, an evidentiary hearing is not warranted for the reasons

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in supra Part V which analyzed the Claims and determined that they should and can be denied on

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the current record. Thus, his request will be denied.

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VII. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s request for discovery is DENIED; and

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2.

Petitioner’s request for an evidentiary hearing is DENIED.

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For all of the foregoing reasons, IT IS RECOMMENDED that the amended petition for

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writ of habeas corpus be DENIED.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, any party may file written

17

objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he

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elects to file, Petitioner may address whether a certificate of appealability should issue in the

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event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules

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Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability

25

when it enters a final order adverse to the applicant).

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//
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DATED: May 24, 2011

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TIMOTHY J BOMMER
UNITED STATES MAGISTRATE JUDGE

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