Reuben Lujan v. Silvia Garcia

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REUBEN KENNETH LUJAN, Nos. 10-55637
Petitioner-Appellee – Cross- 10-55685
Appellant,
D.C. No.
v. 2:04-cv-01127-
MMM-RCF
SILVIA GARCIA, Warden
Respondent-Appellant – Cross-
Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding

Argued and Submitted
July 11, 2013—Pasadena, California

Filed October 29, 2013

Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and Cathy Ann Bencivengo, District Judge.*

Opinion by Judge Bencivengo

*
The Honorable Cathy Ann Bencivengo, District Judge for the U.S.
District Court for the Southern District of California, sitting by
designation.
2 LUJAN V. GARCIA

SUMMARY**

Habeas Corpus

The panel affirmed in part and vacated in part the district
court’s conditional grant of a 28 U.S.C. § 2254 habeas corpus
petition based on a violation of Miranda v. Arizona, 384 U.S.
436 (1966).

Petitioner confessed to two murders in a custodial
interview during which he was not advised of his right to
counsel before and during questioning. The panel held that
petitioner’s rights under Miranda v. Arizona, 384 U.S. 436
(1966), were violated, because the words used by law
enforcement during the custodial interview did not reasonably
convey to petitioner that he had the right to speak with an
attorney present at all times—before and during his custodial
interrogations.

Petitioner also confessed during his trial testimony. The
panel held that the state court decision upholding the
conviction, based on harmless error, violated Harrison v.
United States, 392 U.S. 219 (1968), which in turn held that
when a defendant’s trial testimony is induced by the
erroneous admission of a confession into evidence, the trial
testimony cannot be introduced in a subsequent prosecution,
nor can it be used to support the initial conviction on
harmless error review, because that would perpetuate the
underlying constitutional error in the procurement of the
confession.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 LUJAN V. GARCIA 3

The panel vacated the portion of the district court’s order
and judgment concluding that second-degree murder
convictions are an appropriate remedy (based on the evidence
after exclusion of the confessions), and remanded with
instructions that the district court may offer the option that
the state court make an independent determination as to
whether the convictions can be modified under state law.

The panel declined to address petitioner’s contention that
the confession was involuntary, because this inquiry was
neither appropriate nor necessary in light of the grant of
habeas relief.

COUNSEL

Keith H. Borjon (argued), Supervising Deputy Attorney
General, Kamala D. Harris, Attorney General of California,
Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Xiomara
Costello, Deputy Attorney General, Los Angeles, California,
for Respondent-Appellant/Cross-Appellee.

Tracy J. Dressner (argued), La Crescenta, California, for
Petitioner-Appellee/Cross-Appellant.

OPINION

BENCIVENGO, District Judge:

A California state court jury convicted Petitioner Reuben
Kenneth Lujan of two counts of first-degree murder with
special findings of using a deadly weapon, lying in wait, and
4 LUJAN V. GARCIA

conviction for multiple murders. Evidence supporting the
convictions included Mr. Lujan’s out-of-court custodial
confession and his in-court testimonial confession at trial.
The California Court of Appeal found that the custodial
confession was obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966). However, the Court of Appeal also
found that derivative evidence rules did not apply to exclude
Mr. Lujan’s testimonial confession. In light of the
admissibility of Mr. Lujan’s testimonial confession, the Court
of Appeal concluded that the admission of the custodial
confession constituted harmless error and affirmed the
convictions. The Court of Appeal was not presented with,
nor did it consider, the United States Supreme Court’s
opinion in Harrison v. United States, 392 U.S. 219 (1968).

Pursuant to 28 U.S.C. § 2254, Mr. Lujan petitioned for
federal habeas corpus relief from the convictions. The
district court conditionally granted the petition, finding that
the California Court of Appeal’s harmless error determination
conflicted with the clearly established Supreme Court
precedent of Harrison. The district court issued a conditional
writ directing Respondent Silvia Garcia, the former warden
of Calipatria State Prison, to release Petitioner, unless the
state timely initiates proceedings to either modify Petitioner’s
convictions to convictions for second-degree murder or retry
Petitioner. Respondent filed a timely notice of appeal, and
Mr. Lujan timely cross-appealed. For the reasons explained
below, we affirm in part and vacate and remand in part the
judgment granting the writ of habeas.

BACKGROUND

Monica Lujan, Petitioner’s estranged wife, and Gilbert
Madrigal, an off-duty deputy sheriff, were murdered in the
 LUJAN V. GARCIA 5

early hours of August 16, 1998. Petitioner was arrested later
that morning. Petitioner and Monica had separated four
months earlier and on July 13, 1998, Monica told Petitioner
she wanted a divorce. Petitioner habitually stalked and
threatened Monica after their separation. He told her if she
“wanted to play,” she “would not win.” He told her that their
marriage would not be over until he said it was, and if he
could not have her, “we would have to wait and see.”

When Monica threatened to get a restraining order,
Petitioner responded, “Go ahead. That is, if you’re still
alive.” Monica reported to the police that Petitioner had
simulated shooting her – pantomiming a gun with his fingers
and saying, “This is going to be you.” She also reported that
he had told her, “I’ll kill you if you try to leave me.” As a
result of Monica’s reports and Petitioner’s repeated
unannounced visits to her residence, Petitioner was arrested
for making terrorist threats and stalking. One week before
the killings, at approximately two o’clock in the morning,
Petitioner again returned to Monica’s residence and chased
her inside.

Late on August 15, 1998, Petitioner drove by Monica’s
residence and saw her and Mr. Madrigal become “intimate”
and enter his nearby house. Petitioner knew Mr. Madrigal
was a police officer and had repeatedly questioned his
(Petitioner’s) son to determine if Monica was dating Mr.
Madrigal or other men. While Monica and Mr. Madrigal
were inside, Petitioner hid behind a truck in the driveway.
When he heard them exit, he picked up a concrete block
weighing fifteen pounds. He struck Mr. Madrigal with the
block and then struck Monica repeatedly. Monica died at the
scene; Mr. Madrigal died after spending a week in a coma.
Petitioner later tossed the concrete block into the bushes and
6 LUJAN V. GARCIA

returned to his mother’s home where he was residing. When
Monica’s father called the house to say Petitioner hurt
Monica and “she did not make it,” Petitioner told his mother
to “go see how she is.” Around the same time, Petitioner told
his brother he had gotten into a fight with Monica and hurt
her.

Once in custody, one of the detectives, without his printed
Miranda warning card, advised Petitioner at 7:35 a.m. on
August 16, 1998 as follows:

Your rights are you have the right to remain
silent. Whatever we talk about, and you say,
can be used in a court of law, against you.
And if you don’t have money to hire an
attorney, one’s appointed to represent you free
of charge. So those are your rights.

If you have questions about the case, if you
want to tell us about what happened tonight,
we’ll take your statement – take your
statement from beginning to end. We’ll give
you an opportunity to explain your side of the
story. And that’s – that’s what we’re looking
for. We’re looking for the truth. So do you
understand all that?

The first interview terminated at 9:05 a.m. A second
audiotaped interview commenced some time later, and ended
at 10:36 a.m.

Petitioner confessed to the murders during his third police
interrogation, which commenced at 5:40 p.m. that evening.
 LUJAN V. GARCIA 7

Prior to his confession, Petitioner had the following exchange
with the detective:

[Petitioner]: Can I have an attorney present?

[Detective]: You want, you want an attorney
present? You feel you need one?

[Petitioner]: Yes I do.

[Detective]: Okay. All right. If that’s what
you want to do, we’ll do that.

[Petitioner]: Can I get one in here today?

[Detective]: I really doubt it. I mean, I’m
going to be honest with you. It’s Sunday
evening. When you go to court in a couple of
days there will be one appointed for you.
That’s the way the system is set up. If you
have funds and you want to call and hire your
own attorney. If you want to call and hire an
attorney, that’s fine. . . . If you want to make
a statement without an attorney, that’s up to
you. I doubt that if you hire an attorney
they’ll let you make a statement, they usually
don’t. That’s the way it goes. So, that’s your
prerogative, that’s your choice. Now, if you
do want to talk to me without an attorney,
that’s your choice. You can just tell the jailor,
“Hey, I’d like to talk to the detectives without
an attorney present.” Okay? That’s your
choice.
8 LUJAN V. GARCIA

Petitioner would later make a custodial confession, admitting
that he committed a brutal, surprise attack upon both victims
with the concrete block.

Petitioner was tried for the murders in the Los Angeles
Superior Court.1 During a pretrial proceeding, Petitioner
moved to suppress his custodial confession. The trial court
allowed Petitioner’s confession in the government’s case-in-
chief, despite finding the Miranda warning “incomplete.”
The trial judge further determined the confession was
voluntary.

At trial, Petitioner testified to “explain the details of the
offenses and the circumstances of his confession.”
Petitioner’s trial counsel averred that Petitioner would not
have testified but for the trial court denying his motion to
suppress his custodial confession. Petitioner was convicted
of two counts of first-degree murder with special findings of
using a deadly weapon, lying in wait, and conviction for
multiple murders.

The California Court of Appeal, on direct appeal, and the
district court, on federal habeas review, separately found that
Petitioner’s custodial confession was obtained in violation of
Miranda because he was not advised of his right to counsel
before and during questioning. The California Court of
Appeal found that while Petitioner’s custodial confession
should have been excluded at trial, its admission constituted
harmless error because his trial testimony confirmed the same
inculpatory facts. As it deemed the error to be harmless, the
California Court of Appeal affirmed the convictions.

1
This was his second trial; a previous jury found Petitioner guilty of one
count of stalking but hung on the two murder counts.
 LUJAN V. GARCIA 9

In reaching its decision, the Court of Appeal stated,
“Defendant does not argue his confession was involuntary.”
The Court of Appeal also stated that there “is no contention
nor evidence the August 16, 1998, Norwalk Sheriff’s Station
confession was involuntary; it merely resulted from a
Miranda violation.” The Court of Appeal also denied Mr.
Lujan’s petition for state habeas corpus relief. Both Mr.
Lujan’s direct and state habeas corpus appeals to the Supreme
Court of California were summarily denied.

On federal habeas review in the district court, Magistrate
Judge Rita C. Federman issued a thorough Final Report and
Recommendation that recommended that the district court
issue a conditional writ of habeas corpus ordering Respondent
to release Petitioner or grant him a retrial. The magistrate
judge agreed with the California Court of Appeal that the
Miranda warning was defective, but concluded that the Court
of Appeal’s consideration of Petitioner’s trial testimony in its
harmless error analysis was contrary to clearly established
federal law – the United States Supreme Court’s holding in
Harrison. The magistrate judge explained Harrison to stand
for the principle that “when a defendant’s trial testimony is
induced by the erroneous admission of a confession into
evidence, the trial testimony can not [sic] be introduced in a
subsequent prosecution, nor can it be used to support the
initial conviction on harmless error review, because to do so
would perpetuate the underlying constitutional error in the
procurement of the confession.”

The magistrate judge also noted that the record did not
support the Court of Appeal’s conclusion that Petitioner had
failed to raise the voluntariness of his confession. The
magistrate judge pointed to evidence in Petitioner’s direct
appeal, his habeas appeal, and his petition for review to the
10 LUJAN V. GARCIA

Supreme Court of California – all of which raised the issue –
and noted that the parties litigated the issue during pretrial
evidentiary hearings, as well. Nonetheless, the magistrate
judge stated that the involuntariness question “does not
appear to provide an alternate basis for federal habeas relief
under § 2254(d).”

District Judge Morrow concurred and issued a thorough
opinion adopting the magistrate judge’s findings. The district
court, however, supplemented the habeas remedy to allow
Respondent to initiate proceedings to modify the convictions
to convictions for second-degree murder, in lieu of release or
retrial. While the district court agreed that the first-degree
murder convictions and special circumstance findings did not
result from harmless error, it found that the remaining
evidence, after exclusion of Petitioner’s custodial and
testimonial confessions, was sufficient to establish
convictions for second-degree murder.

STANDARD OF REVIEW

We review de novo a district court’s decision to grant or
deny habeas relief. Benn v. Lambert, 283 F.3d 1040, 1051
(9th Cir. 2002). Since Petitioner filed his habeas petition in
2004, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) applies. See Woodford v. Garceau,
538 U.S. 202, 207 (2003). We may grant habeas relief only
if the state court adjudication was contrary to or an
unreasonable application of clearly established federal law, as
determined by the United States Supreme Court. See
28 U.S.C. § 2254(d)(1), (2).

We must review the last reasoned state court decision.
Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Sarausad
 LUJAN V. GARCIA 11

v. Porter, 479 F.3d 671, 677 (9th Cir. 2007), vacated in part
on denial of reh’g en banc, 503 F.3d 822 (9th cir. 2007) and
rev’d and remanded on other grounds sub nom. Waddington
v. Sarausad, 555 U.S. 179 (2009). We presume the state
court’s factual findings to be correct – “a presumption the
petitioner has the burden of rebutting by clear and convincing
evidence.” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir.
2010). Even in the presence of error, the Court can only grant
federal habeas relief if “the error had a ‘substantial or
injurious effect’ on the verdict.” Parle v. Runnels, 387 F.3d
1030, 1034 (9th Cir. 2004) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637–38 (1993)).

We review de novo a district court’s rulings on questions
of law. Crittenden, 624 F.3d at 950. Factual findings and
credibility determinations made by a district court in the
context of granting or denying the petition are reviewed for
clear error. Id. at 964. However, mixed questions of law and
fact, including a district court’s application of AEDPA, as
well as its conclusion that the standards set forth in AEDPA
are satisfied, are also reviewed de novo. Lambert v. Blodgett,
393 F.3d 943, 965 (9th Cir. 2004).

Finally, we review a district court’s ruling on the
appropriate remedy in a habeas petition for abuse of
discretion. Chioino v. Kernan, 581 F.3d 1182, 1184 (9th Cir.
2009).
12 LUJAN V. GARCIA

DISCUSSION

I. Harrison v. United States, 392 U.S. 219 (1968), Sets
Forth Clearly Established Federal Law

A. Harrison

Eddie Harrison was arrested on his eighteenth birthday for
a theft that occurred one day earlier. Harrison v. United
States (“Harrison I”), 359 F.2d 214, 219 (D.C. Cir. 1965) (en
banc). A few days later, police officers questioned Harrison
regarding a robbery and murder that occurred the week before
the aforementioned theft. The interrogation took place while
Harrison was in jail awaiting grand jury proceedings on the
theft charge. Id. at 219–20. Harrison made an oral statement
confessing to his and his co-conspirators’ plan to rob the
victim and to holding the shotgun involved. Id. at 220.
Several hours later, the officers recorded Harrison’s
confessions in writing. Id. at 222. The admission into
evidence of Harrison’s oral and written confessions led to his
conviction at trial.

A panel of the United States Court of Appeals for the
District of Columbia Circuit reviewed the admission by the
district court of Harrison’s confessions and reversed the
conviction. It held that Harrison’s written confession should
have been excluded under the rule of Mallory v. United
States, 354 U.S. 449 (1957), which required the exclusion of
confessions elicited during prolonged interrogation in
violation of the prompt arraignment requirement of Rule 5(a)
of the Federal Rules of Criminal Procedure. Id. at 220–22.
See also Mallory, 354 U.S. at 455–56. It also held that
Harrison’s oral statement was inadmissible under Killough v.
United States, 336 F.2d 929 (D.C. Cir. 1964). Killough held
 LUJAN V. GARCIA 13

that a confession made to a jail classification officer was not
admissible because the questioning was intended to serve
limited classification purposes and the prisoner was told that
any statements he made would not be used against him. Id.
at 931–32.

In its ruling, the panel declined to apply Harling v. United
States, 295 F.2d 161 (D.C. Cir. 1961) (en banc), in which the
D.C. Circuit held that admissions by a minor in juvenile
proceedings must be excluded in later adult criminal
proceedings. Id. at 163–64. It noted that regardless of
Harrison’s age, he was not incarcerated in connection with a
juvenile proceeding. Harrison I, 359 F.2d at 221.

The D.C. Circuit ordered rehearing en banc on the issue
of the admissibility of Harrison’s oral confession. Harrison
I, 359 F.2d at 223–29. Upon rehearing, the D.C. Circuit
extended Harling to require exclusion of any confession
made by a prisoner while within the exclusive jurisdiction of
the juvenile court. Id. The circuit court found that Harrison
had been within the exclusive jurisdiction of the juvenile
court from the moment he committed his crime until the
juvenile court waived jurisdiction. Id. at 227. As a result, the
D.C. Circuit remanded for a new trial. Id. at 229.

Because it could no longer rely on Harrison’s out-of-court
confessions, the government introduced portions of
Harrison’s testimony from the earlier trial during its case-in-
chief. Harrison v. United States (“Harrison II”), 387 F.2d
203, 208 (D.C. Cir. 1967), rev’d on other grounds, 392 U.S.
219 (1968). The D.C. Circuit held that reading Harrison’s
prior trial testimony into the record did not violate his rights.
In particular, it concluded that the “fruit of the poisonous
tree” doctrine was not applicable because the relationship
14 LUJAN V. GARCIA

between the erroneous admission of the jailhouse confessions
and Harrison’s subsequent trial testimony was so attenuated
as to dissipate any taint. Id. at 209–10.

The Supreme Court reversed. It held that “the same
principle that prohibits the use of confessions so procured
also prohibits the use of any testimony impelled thereby – the
fruit of the poisonous tree, to invoke a time-worn metaphor.”
Harrison, 392 U.S. at 222. The Supreme Court relied on the
general rule concerning the fruit of the poisonous tree
doctrine articulated in Silverthorne Lumber Co. v. United
States, 251 U.S. 385 (1920). It stated that the “‘essence of a
provision forbidding the acquisition of evidence in a certain
way is that not merely evidence so acquired shall not be used
before the Court but that it shall not be used at all.’”
Harrison, 392 U.S. at 222 (quoting Silverthorne, 251 U.S. at
392). The Court held that if Harrison had testified “in order
to overcome the impact of confessions illegally obtained and
hence improperly introduced, then his testimony was tainted
by the same illegality that rendered the confessions
themselves inadmissible.” Id. at 223. The Court placed the
burden on the government to show that its illegal action did
not induce Harrison’s testimony, and found the government
had not met that burden. Id. at 225.

B. Harrison Applies to the States

In evaluating the validity of Mr. Lujan’s convictions, the
California Court of Appeal conducted a harmful error
analysis that considered Mr. Lujan’s trial testimony as
independent evidence of his guilt. In reviewing Mr. Lujan’s
federal habeas petition, the district court concluded that this
analysis resulted in a decision that was contrary to the clearly
 LUJAN V. GARCIA 15

established federal law of Harrison. Respondent appeals this
determination.2

Respondent argues that, because the Supreme Court’s
decision in Harrison does not interpret any provision of
federal law applicable to the States, Harrison is not clearly
established federal law entitling Petitioner to federal habeas
relief. See 28 U.S.C. § 2254(d)(1). In Harrison, the
confessions were illegally procured according to rules
applicable only to federal prosecutions.3 For this reason,
Respondent argues that “Harrison was of non-constitutional
dimension applicable only to federal prosecutions.”

Harrison is not strictly a case holding that, under its
unique set of facts, the use of the defendant’s trial testimony
was unconstitutional. Rather, as evidenced by the Supreme
Court’s own characterization of the case, Harrison is a Fifth
Amendment case:

If the prosecution has actually violated the
defendant’s Fifth Amendment rights by
introducing an inadmissible confession at

2
The district court further applied the harmless error standard
announced in Brecht and concluded that the error was not harmless
“[b]ased on its substantial impact on the prosecution’s presentation of the
facts, on the proof of material elements of the charges, on the defense
strategy, and on the selection of the jury instructions given by the trial
court, it is clear the trial court’s error in admitting the confession had a
substantial and injurious effect on the jury’s verdict.” Respondent does
not appeal this determination. We therefore accept the district court’s
Brecht determination.
3
We note, however, that whether or not the confessions were illegally
procured was not an issue in dispute before the Supreme Court in
Harrison.
16 LUJAN V. GARCIA

trial, compelling the defendant to testify in
rebuttal, the rule announced in Harrison v.
United States[,] 392 U.S. 219[](1968),
precludes use of that testimony on retrial.

Oregon v. Elstad, 470 U.S. 298, 316–17 (1985). The
Supreme Court could not have been any plainer.

Harrison is clearly established federal law under
§ 2254(d)(1) because, as the district court explained in its
well-reasoned opinion, Harrison looked to constitutional
principles and case law to structure an exclusionary rule that
would safeguard the Fifth Amendment privilege against
compulsory self-incrimination. The Harrison exclusionary
rule applies to the case at bar because Mr. Lujan testified as
to his guilt at trial “in order to overcome the impact of
confessions illegally obtained and hence improperly
introduced” at trial. Harrison, 392 U.S. at 223. Where, as
here, such a causal link is shown, Harrison explains that the
inculpatory trial “testimony was tainted by the same illegality
that rendered the confessions themselves inadmissible.” Id.
Under the Harrison exclusionary rule, the defendant’s
inculpatory trial testimony, therefore, cannot be considered as
evidence of the defendant’s guilt to support a conviction.

Harrison created a clear exclusionary rule that, when
applicable, precludes the use of a defendant’s inculpatory trial
testimony to incriminate him in later proceedings. The
Supreme Court laid out the framework for deciding whether
its exclusionary rule applies as follows:

The question is not whether the petitioner
made a knowing decision to testify [at trial],
but why. If he did so in order to overcome the
 LUJAN V. GARCIA 17

impact of confessions illegally obtained and
hence improperly introduced, then his
testimony was tainted by the same illegality
that rendered the confessions themselves
inadmissible.

Id.

Respondent focuses on the dissenting opinions in
Harrison to argue that this rule does not apply to the States.
For example, Respondent points to Justice White’s dissenting
opinion, which states that the Harrison majority did not hold
that a defendant’s decision to testify in response to the
admission of an illegally obtained confession compels him to
be a witness against himself in violation of the Fifth
Amendment. Id. at 229 (White, J., dissenting). This
argument misses the point of the Harrison majority opinion.
The majority opinion outlines a “fruit of the illegally
procured confessions” exception to the “general evidentiary
rule that a defendant’s testimony at a former trial is
admissible in evidence against him in later proceedings.” Id.
at 221–22. The Fifth Amendment’s privilege against
compulsory self-incrimination is not waived when a
defendant’s testimony is impelled by the need to counter his
own out-of-court confession that was illegally obtained by
law enforcement and improperly admitted by the government
in its case-in-chief. Id. at 221–24.

As set forth in Harrison, a criminal defendant’s Fifth
Amendment constitutional protection against compulsory
self-incrimination is violated by the use of that defendant’s
inadmissible confession in the prosecutor’s case-in-chief. Id.
at 222–23 & n.9. When such a constitutional violation
occurs, Harrison requires that both the confession and, if
18 LUJAN V. GARCIA

induced by the unlawfully admitted confession, any
inculpatory trial testimony be excluded from later
proceedings.4 Id. at 222–24. The Supreme Court structured
its rule in this way so as to fully eradicate the Fifth
Amendment violation from later proceedings.

The Supreme Court reasoned that any testimonial
admission of guilt induced by such a Fifth Amendment
violation at trial must be excluded because to hold otherwise
would take away the essence of the privilege against
compulsory self-incrimination. Borrowing from its Fourth
Amendment case of Silverthorne, the Harrison court found
the following principle to fit within its Fifth Amendment
exclusionary rule framework:

[T]he ‘essence of a provision forbidding the
acquisition of evidence in a certain way is that
not merely evidence so acquired shall not be
used before the Court but that it shall not be
used at all.’

Id. at 222 (quoting Silverthorne, 251 U.S. at 392). The Court
further relied on a truncated portion of the following language
from People v. Spencer, 66 Cal. 2d 158 (1967), as support for
the Harrison exclusionary rule:

4
In Harrison, the burden rested with the government to show that its
illegal action did not induce the trial testimony at issue. 392 U.S. at 225.
Here, however, this burden and who properly bears it on federal habeas
review is not at issue. Petitioner provides evidence that he did not wish
to testify at trial in the event his out-of-court confession was suppressed.
Respondent does not provide any evidence to dispute this. Thus, we
presume that the unlawful admission of Petitioner’s out-of-court
confession impelled his trial testimony.
 LUJAN V. GARCIA 19

If the improper use of defendant’s
extrajudicial confession impelled his
testimonial admission of guilt, we could
hardly sustain his conviction on the theory
that his confession to the police, although
inadmissible, merely duplicated his
subsequent confession to the jury; in that
event we could not, in order to shield the
resulting conviction from reversal, separate
what he told the jury on the witness stand
from what he confessed to the police during
interrogation.

See Spencer, 66 Cal. 2d at 164 (holding defendant’s trial
testimony could not be considered on harmless error review
absent a sufficient showing that the defendant did not take the
stand as a result of the government’s use of an improper
confession in court); Harrison, 392 U.S. at 223–24.

In sum, Harrison focuses on how to cure a specific Fifth
Amendment violation – the unlawful admission of a criminal
defendant’s confession. The exclusionary rule outlined in
Harrison had nothing to do with the underlying reasons why
the unlawfully admitted confessions were inadmissible. What
mattered was that they were inadmissible. This is evident
from the Supreme Court’s discussion of the privilege against
compulsory self-incrimination as the principle that prohibits
the government’s use of a “wrongfully obtained” confession
against a defendant during the government’s case-in-chief.
See Harrison, 392 U.S. at 222. The Supreme Court held that
this “same principle . . . prohibits the use of any testimony
impelled” by the use of the wrongfully procured confession
at trial. Id. As set forth above, Harrison outlines a clear
exclusionary rule that applies to the States.
20 LUJAN V. GARCIA

C. Harrison Does Not Conflict with Motes v. United
States, 178 U.S. 458 (1900)

Respondent argues that Harrison does not set forth a
clearly established rule because it conflicts with Motes v.
United States, 178 U.S. 458 (1900).5

In Motes, the Supreme Court held that the trial court erred
in admitting the preliminary hearing testimony of a witness
(a former co-defendant) who had provided incriminating
evidence against the other defendants in a multi-defendant
trial involving a conspiracy to commit murder. Motes,
178 U.S. at 467. The defendants had the opportunity to cross-
examine the witness at the preliminary hearing. Id. at
470–71. Nevertheless, because the witness’ “absence . . . was
plainly to be attributed to the negligence of the prosecution,”
id. at 474, the trial court’s admission of the witness’ prior
testimony violated the defendants’ Sixth Amendment right to
be confronted with witnesses against them. Id. at 471–74.

As a result of the trial court’s error, the Supreme Court
reversed the convictions of all the defendants, except one who
had testified at trial. With respect to that defendant, the
Supreme Court found the error to be harmless because the
defendant’s trial testimony alone was enough to support the
conviction. Id. at 475–76. For this reason, the Court upheld
that defendant’s conviction, opining that reversal “would be
trifling with the administration of the criminal law.” Id. at
476.

5
Respondent did not present this argument to the California Court of
Appeal or the district court.
 LUJAN V. GARCIA 21

Respondent argues that Motes is in conflict with Harrison
because it recognizes that the fairness and accuracy of a
criminal trial is not compromised by an unconstitutional
admission of evidence when a defendant voluntarily testifies
to facts that fully support the jury’s verdict in the case. The
Motes decision, however, is clearly limited to the Sixth
Amendment issue then before the Supreme Court. See id. at
474 (“We are unwilling to hold it [(the admission of this
witness’ testimony)] to be consistent with the constitutional
requirement that an accused shall be confronted with
witnesses against him . . . . We need not decide more in the
present case.”).

Further, the Harrison decision does not conflict with the
holding in Motes. Indeed, the Supreme Court in Harrison
explicitly declined to extend its decision to situations like that
faced by the testifying defendant in Motes:

We have no occasion in this case to canvass
the complex and varied problems that arise
when the trial testimony of a witness other
than the accused is challenged as ‘the
evidentiary product of the poisoned tree.’ . . . .
we decide here only a case in which the
prosecution illegally introduced the
defendant’s confession in evidence against
him at trial in its case-in-chief.

Harrison, 392 U.S. at 223 n.9 (internal citations omitted).
Motes does not obscure the clear law established by Harrison.
22 LUJAN V. GARCIA

D. Harrison Remains Clearly Established Law
Subsequent to Oregon v. Elstad, 470 U.S. 298
(1985)

1. Elstad

In December 1981, $150,000 worth of art and furnishings
were stolen from an Oregon home. Elstad, 470 U.S. at 300.
A witness implicated an eighteen-year-old neighbor of the
victims, Michael Elstad. Id. Responding to the neighbor’s
tip, two officers went to Elstad’s home with a warrant for his
arrest. Id. While Officer McAllister spoke with Elstad’s
mother in another room, Officer Burke asked Elstad if he
knew why the officers were there. Id. at 301. Elstad said he
did not. The officer then asked Elstad if he knew a person by
the name of Gross. Id. Elstad said he did, and also that, “he
heard that there was a robbery at the Gross house.” Id.
Officer Burke told Elstad he “felt he was involved in that[.]”
Elstad looked at the officer and said, “Yes, I was there.” Id.

Elstad was transported to the Sheriff’s headquarters. One
hour later, Officer McAllister advised him of his Miranda
rights, reading from a standard card. Id. Elstad stated he
understood his rights, and, with them in mind, wished to
speak with the officers. Id. Elstad gave a full confession. Id.
The statement was typed, reviewed by Elstad, read back to
him for correction, and initialed and signed by Elstad and
both officers. Id.

At trial for first-degree burglary, Elstad’s counsel moved
to suppress his oral statement and signed confession, arguing
that the statement at his house “let the cat out of the bag,”
citing United States v. Bayer, 331 U.S. 532 (1947), and
tainted the subsequent confession as “fruit of the poisonous
 LUJAN V. GARCIA 23

tree,” citing Wong Sun v. United States, 371 U.S. 471 (1963).
Id. at 302.

The trial judge excluded Elstad’s in-home statement
because he had not been advised of his Miranda rights, but
allowed the written confession. Id. The court concluded
Elstad’s statement was “given freely, voluntarily and
knowingly” after he had waived his properly administered
rights. “[The written statement] was not tainted in any way
by the previous brief statement between [Elstad] and the
[officers] that had arrested him.” Id. Elstad was found guilty
and received a five year sentence. Id.

Elstad appealed to the Oregon Court of Appeals. The
Court of Appeals reversed his conviction, concluding that the
crucial constitutional inquiry was “whether there was a
sufficient break in the stream of events between [the]
inadmissible statement and the written confession to insulate
the latter statement from the effect of what went before.”
State v. Elstad, 658 P.2d 552, 554 (Or. Ct. App. 1983), rev’d,
470 U.S. 298 (1985). The Court of Appeals concluded that
“the coercive impact of the unconstitutionally obtained
statement remains, because in a defendant’s mind it has
sealed his fate. It is this impact that must be dissipated in
order to make a subsequent confession admissible.” Id. The
Court of Appeals identified lapse of time and change of place
from the original surroundings as the two most important
considerations as to whether the impact had been sufficiently
dissipated, and concluded that in Elstad’s case, exclusion of
the subsequent written confession was required. Id. at
554–55.

The Oregon Supreme Court declined review and the
United States Supreme Court granted certiorari to consider
24 LUJAN V. GARCIA

whether “the Self-Incrimination Clause of the Fifth
Amendment requires the suppression of a confession, made
after proper Miranda warnings and a valid waiver of rights,
solely because the police had obtained an earlier voluntary
but unwarned admission from the defendant.” Elstad,
470 U.S. at 303. Ultimately, the United States Supreme
Court held that “a suspect who has once responded to
unwarned yet uncoercive questioning is not thereby disabled
from waiving his rights and confessing after he has been
given the requisite Miranda warnings.” Id. at 318.

2. Elstad Does Not Undermine Harrison

Respondent argues that Harrison does not set forth a
clearly established rule because its entire rationale and
reasoning has been undermined by the subsequent Supreme
Court authority of Elstad. However, the Supreme Court in
Elstad confronted and rejected this argument. The Supreme
Court explained that it “has never embraced the theory”
pursued by the defendant in Elstad – “that a defendant’s
ignorance of the full consequences of his decisions vitiates
their voluntariness.” Id. at 316–17. The Court then
distinguished Harrison as precedent wherein the
government’s illegal actions – as opposed to the defendant’s
ignorance – vitiated the voluntariness of a confession:

If the prosecution has actually violated the
defendant’s Fifth Amendment rights by
introducing an inadmissible confession at
trial, compelling the defendant to testify in
rebuttal, the rule announced in Harrison v.
United States[,] 392 U.S. 219[](1968),
precludes use of that testimony on retrial.
 LUJAN V. GARCIA 25

Id. Thus, in distinguishing Elstad from Harrison, the
Supreme Court confirmed the Harrison exclusionary rule as
good constitutional law.

Elstad and Harrison are also distinguishable on their
facts. In Elstad, the Supreme Court addressed the scope of
the Miranda exclusionary rule in the context of multiple
confessions obtained from a suspect during a criminal
investigation. In Harrison, the Supreme Court outlined an
exclusionary rule to apply in the context of unlawfully
admitted confessions of the defendant in a criminal trial.
Accordingly, Elstad concerns the investigative stage of a
criminal proceeding whereas Harrison concerns the trial
stage. Both cases developed rules that safeguard the Fifth
Amendment’s prohibition of the use by the prosecution in its
case-in-chief of compelled testimony.

The opinions of Elstad and Harrison should not be
conflated to create ambiguity where there is none. Harrison
sets forth a clearly established rule that has not been
undermined by Elstad.

Under the Harrison exclusionary rule, when a criminal
defendant’s trial testimony is induced by the erroneous
admission of his out-of-court confession into evidence as part
of the government’s case-in-chief, that trial testimony cannot
be introduced in a subsequent prosecution, nor can it be used
to support the initial conviction on harmless error review,
because to do so would perpetuate the underlying
constitutional error. In the case at bar, the California Court
of Appeal’s harmless error analysis violated this rule and,
26 LUJAN V. GARCIA

thus, was contrary to clearly established federal law.6
Therefore, we affirm the district court’s determination that
federal habeas relief under 28 U.S.C. § 2254(d)(1) is
warranted.

II. Petitioner’s Rights Under Miranda Were Violated

Respondent argues that the discussion that Mr. Lujan had
with the police regarding his right to counsel satisfied
Miranda. “Miranda claims present mixed questions of law
and fact which we review de novo.” Sechrest v. Ignacio,
549 F.3d 789, 805 (9th Cir. 2008). Thus, we apply a de novo
standard in reviewing whether the district court and
California Court of Appeal properly concluded that
Petitioner’s rights under Miranda were violated.

In Miranda, the Supreme Court held that, because of the
inherently coercive nature of custodial interrogation, a person
must be advised of his or her constitutional rights, including
being advised prior to any questioning of the right to an
attorney and the right to remain silent. See Miranda,
384 U.S. at 444. “If the individual states that he wants an
attorney, the interrogation must cease until an attorney is
present.” Id. at 474. In such an instance, “[i]f the
interrogation continues without the presence of an attorney
and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and

6
Again, the parties do not dispute that, if Harrison is clear federal law
applicable to the States (which we so conclude), then the California Court
of Appeal’s decision affirming the conviction was contrary to or an
unreasonable application of clearly established federal law as set forth in
Harrison.
 LUJAN V. GARCIA 27

intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel.” Id. at 475.

Respondent argues that both the California Court of
Appeal and the district court mistakenly held law
enforcement to a standard higher than is required under
Supreme Court precedent by requiring an affirmative warning
that specifically states that the suspect has the right to counsel
before and during questioning.7 Respondent reads the
interrogation transcripts as communicating to Petitioner that
it was his “choice” and “prerogative” whether to speak with
or without an attorney present. Thus, according to
Respondent, Miranda was satisfied since “[d]ifferent words”
from those set forth in Miranda may be used by law
enforcement so long as they “communicate[] the same
essential message.” See Florida v. Powell, 559 U.S. 50, 64
(2010).

The problem here is that the words used by law
enforcement did not reasonably convey to Petitioner that he
had the right to speak with an attorney present at all times –
before and during his custodial interrogations. In the end, we
find that the “choice” communicated to Petitioner was that he
could speak without an attorney or he could remain silent
throughout his interrogations. Speaking with an attorney
present was not an option presented to Petitioner. Thus,
Miranda was never satisfied.

Before his first interrogation, Petitioner was told the
following regarding his Miranda rights:

7
Petitioner mistakenly asserts that Respondent did not challenge the
Court of Appeal’s Miranda ruling in the district court.
28 LUJAN V. GARCIA

Your rights are you have the right to remain
silent, whatever we talk about or you say can
be used in a court of law against you, and if
you don’t have money to hire an attorney
one’s appointed to represent you free of
charge. So, those are your rights. If you have
questions about the case, if you want to tell us
about what happened tonight, we’ll take your
statement, take your statement from beginning
to end. We’ll give you an opportunity to
explain your side of the story. That’s what
we’re looking for and we’re looking for the
truth. So you understand all that?

Petitioner did not receive any further advisements about his
right to counsel until his third interrogation.

Respondent argues that, during Petitioner’s third
interrogation, Detective Rodriguez provided an “enhanced
Miranda warning” that advised Petitioner above what the
Miranda warning itself provides by telling Petitioner that his
legal counsel would likely advise against making any
statements to the police. The detective advised Petitioner, “I
doubt that if you hire an attorney they’ll let you make a
statement, usually they don’t. That’s the way it goes. So,
that’s your prerogative, that’s your choice.” This advice did
not inform Mr. Lujan of his constitutional right to counsel.
It was improper, unauthorized legal advice. See Collazo v.
Estelle, 940 F.2d 411, 414, 418 (9th Cir. 1991) (holding
officer’s advice, which included, “a lawyer, he’s gonna say
forget it. You know, don’t talk to the police,” “demeaned the
pre-trial role of counsel articulated by the Supreme Court in
Miranda and its progeny. He did so by dispensing a one-
sided, unauthorized legal opinion regarding whether [the
 LUJAN V. GARCIA 29

suspect] should remain silent and exercise his right to
counsel. This advice adds yet another unacceptable dimension
to [the officer’s] methods.”).

Further, read in context, this advice was given to counter
Petitioner’s invocation of his right to counsel. The
purportedly enhanced Miranda warning came after
confronting Petitioner with letters written to Monica about
their marital problems, photographs of Monica and their
children, and purported blood evidence found at Petitioner’s
house, and after the following dialogue took place:

Sgt. Rodriguez: . . . . Everything comes back
to you. Everything says it’s you. People say
it’s you. The only person that’s still somewhat
in denial is you. . . . maybe you’re going to
need to look inside yourself. Like I told you
before, it’s very important that if there’s some
other side to this story, your side of the story
that we hear, it’s very important. . . . there
may be some other movements, other
mechanisms, other things that cause other
causal factors, other things that are involved
that we don’t know. Only you know and only
you can tell us. Only you can tell us, what you
were feeling at the time. Only you can tell us
how you really felt, if you felt provoked. If
there was something that was done that, took
you over the edge. All those kinds of issues –

Defendant: Can I have an attorney present?

Sgt. Rodriguez: You want, you want an
attorney present? You feel you need one?
30 LUJAN V. GARCIA

Defendant: Yes I do.

The interrogation should have ended there as Petitioner
invoked his right to counsel.

Instead, the detective pushed forward as if Petitioner’s
unequivocal invocation of the right to counsel was somehow
unclear, making statements like, “So like I said it’s up to you.
So want [sic] to make a statement without an attorney, that’s
up to you. I doubt that if you hire an attorney they’ll let you
make a statement,” and “Now, you’ve asked for an attorney,
so if you want to talk about this, you’ll have to tell me
without an attorney present.” Given a commonsense reading,
the record shows that law enforcement’s advisements overall
limited Petitioner’s right to counsel and did not directly or
indirectly fully communicate to Petitioner his right to counsel
at all times.

Respondent contends that any argument that the
detective’s “enhanced Miranda warning” did not clearly
convey to Petitioner his right to have counsel present during
any questioning runs afoul of Powell. Respondent argues that
the California Court of Appeal and the district court
interpreted the words of Detective Rodriguez in such a way
so as to come to the counterintuitive conclusion that counsel
would be whisked in and out of the interrogation between
questions. We disagree that the advisements at issue here
lead to such a conclusion.

In Powell, the following advisement was given:

You have the right to remain silent. If you
give up the right to remain silent, anything
you say can be used against you in court. You
 LUJAN V. GARCIA 31

have the right to talk to a lawyer before
answering any of our questions. If you cannot
afford to hire a lawyer, one will be appointed
for you without cost and before any
questioning. You have the right to use any of
these rights at any time you want during this
interview.

Powell, 559 U.S. at 54. The Supreme Court concluded that
the “warnings reasonably conveyed Powell’s right to have an
attorney present, not only at the outset of interrogation, but at
all times.” Id. at 62. The same cannot be said of the
warnings provided to Petitioner.

Accordingly, we affirm the district court’s and state
appellate court’s conclusion that law enforcement’s
communications with Petitioner did not comply with the
clearly established Supreme Court precedent of Miranda and
its progeny. Petitioner was never advised of his right to
counsel at all times.

III. The District Court’s Remedy

Petitioner argues that the district court erred in granting
the state the option to modify Petitioner’s convictions to
second-degree murder in lieu of releasing or retrying him.
Petitioner argues that only the habeas remedies of release or
retrial are appropriate in this case, as a trial judge may also
32 LUJAN V. GARCIA

instruct the jury on voluntary manslaughter in a retrial.8 For
reasons other than those argued by Petitioner, we remand.

We review the district court’s remedy for abuse of
discretion. Chioino, 581 F.3d at 1184. In general, “a district
court abuses its discretion when it makes an error of law,
when it rests its decision on clearly erroneous findings of fact,
or when we are left with a definite and firm conviction that
the district court committed a clear error of judgment.”
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012)
(en banc) (internal quotations and alteration omitted).

In habeas cases, federal courts have broad discretion in
conditioning a judgment granting relief. Hilton v. Braunskill,
481 U.S. 770, 775 (1987). “Federal courts are authorized,
under 28 U.S.C. § 2243, to dispose of habeas corpus matters
as law and justice require.” Id. (internal quotations omitted).
More specifically, a court may issue a conditional writ that
requires the state to release a petitioner unless it takes some
other remedial action, such as retrial of the petitioner.
Herrera v. Collins, 506 U.S. 390, 403 (1993); Braunskill,
481 U.S. at 775 (“[F]ederal courts may delay the release of a
successful habeas petitioner in order to provide the State an
opportunity to correct the constitutional violation found by
the court.”).

8
In California, voluntary manslaughter is the unlawful killing of a
human being, without malice, upon a sudden quarrel or heat of passion.
Cal. Penal Code § 192(a). The provocation – never simply the passion for
revenge – must suffice to cause an ordinary man of average disposition “to
act rashly or without due deliberation and reflection, and from this passion
rather than from judgment.” People v. Berry, 18 Cal. 3d 509, 515 (1976).
 LUJAN V. GARCIA 33

The United States Supreme Court recently provided
guidance on crafting a habeas remedy. In a case concerning
a Sixth Amendment violation, the Court stated:

[R]emedies should be ‘tailored to the injury
suffered from the constitutional violation and
should not unnecessarily infringe on
competing interests.’ Thus, a remedy must
‘neutralize the taint’ of a constitutional
violation, while at the same time not grant a
windfall to the defendant or needlessly
squander the considerable resources the State
properly invested in the criminal prosecution.

Lafler v. Cooper, 132 S. Ct. 1376, 1388–89 (2012) (quoting
United States v. Morrison, 449 U.S. 361, 364–65 (1981)).
We find it sensible that the Court’s guidance apply equally to
a Fifth Amendment remedy, as well.

Here, the district court fashioned its remedy in reliance on
Harvest v. Castro, 531 F.3d 737 (9th Cir. 2008), which it
believed supported the proposition that it could direct the
state to modify Petitioner’s convictions to second-degree
murder if the state chose not to release or retry him. See id.
at 740. Harvest was a rehearing of an unreported
memorandum disposition. The panel in Harvest referenced
without comment the previous panel’s remand order that
directed “‘the district court to order the state to release the
petitioner unless the state either modifies the conviction to
one for second degree murder or retries the petitioner.’” Id.
(quoting Harvest v. Castro, 121 F. App’x 216, 220 (9th Cir.
2005) (unpublished opinion)). Since the district court issued
its opinion relying on Harvest, however, we decided Douglas
34 LUJAN V. GARCIA

v. Jacquez, 626 F.3d 501 (9th Cir. 2010), which provides
guidance.

Douglas involved a habeas petitioner who had been
convicted of arson of an inhabited structure under California
Penal Code Section 451(b). The district court, on habeas
review, found insufficient evidence of inhabitation and
ordered the state to resentence the petitioner under California
Penal Code Section 451(c), for arson of a structure. Id. at
503. This Court vacated the order and remanded, holding that
“[t]he district court’s power under habeas corpus was either
immediately to vacate the prisoner’s arson sentence, or to
postpone such relief for a reasonable period to allow the state
court properly to sentence the prisoner.” Id. at 504. “Under
California law, a trial court can modify a jury verdict when
the trial evidence establishes that the defendant is not guilty
of the charged crime, but is guilty of a lesser included
offense.” Id. at 505 (citing Cal. Penal Code § 1181(6)).9 This
Court held that:

9
The California Penal Code provides:

When the verdict or finding is contrary to law or
evidence, but if the evidence shows the defendant to be
not guilty of the degree of the crime of which he was
convicted, but guilty of a lesser degree thereof, or of a
lesser crime included therein, the court may modify the
verdict, finding or judgment accordingly without
granting or ordering a new trial, and this power shall
extend to any court to which the cause may be
appealed.

Cal. Penal Code § 1181(6). California courts may also modify a
conviction to a lesser included offense in habeas proceedings. See In re
Bower, 700 P.2d 1269 (Cal. 1985).
 LUJAN V. GARCIA 35

[A] California state trial court can modify the
judgment from a conviction under § 451(b) to
a [lesser] conviction under § 451(c). . . .
Instead of directing the trial court to enter a
judgment under § 451(c), the district court
should have granted a conditional writ of
habeas corpus and ordered that [petitioner’s]
conviction under § 451(b) be vacated only if
the state court did not resentence him within
a reasonable time, such as 90 days. The state
court would thus have an opportunity to
correct its own constitutional error.

Id. (emphasis added).

We now apply Douglas’s holding to this case. The
district court determined that absent the improperly admitted
confession and testimony, the record supported a
modification of the convictions to second-degree murder
convictions and such a modification would be an appropriate
habeas remedy. We conclude that the district court correctly
concluded that it may provide the state trial court with the
general option of remedying the constitutional error through
a modification of the petitioner’s convictions. Id.; see also
Lafler, 132 S. Ct. at 1388–91. However, the district court
erred in specifically concluding that second-degree murder
convictions are an appropriate remedy here. The state court
made no such determination, and thus, that issue is not
properly before us on habeas review. Applying Douglas, we
leave to the state court the question of whether based on this
record a modification of the convictions to second-degree
murder is proper as a matter of law.
36 LUJAN V. GARCIA

Accordingly, we vacate the portions of the district court’s
order and judgment that conclude second-degree murder
convictions are an appropriate remedy. We remand this
habeas petition to the district court to modify its judgment
and issue a conditional writ in accordance with this opinion.
On remand, the district court’s judgment and writ may
include the option that the state court make an independent
determination as to whether the convictions can be modified
under state law.

IV. Voluntariness of Petitioner’s Confession

Petitioner now asks us to decide, or remand to the district
court to decide, whether his confession was involuntary in
addition to having been procured in violation of Miranda.
The district court declined to decide this issue, as the
magistrate judge determined it need not address alternative
grounds for the habeas relief already granted. We agree with
the district court’s reasoning. Having provided Petitioner
with federal habeas relief pursuant to 28 § U.S.C. 2254(d)
that removes the taint of the improperly admitted confession
and the testimony thereby impelled, an inquiry into the
voluntariness of Petitioner’s confession is neither appropriate
nor necessary at this point. See Blazak v. Ricketts, 971 F.2d
1408, 1413–14 (9th Cir. 1992) (holding that courts may avoid
resolution of all extraneous issues to preserve scarce judicial
resources); see also Missouri v. Seibert, 542 U.S. 600, 617
n.8 (2004) (“Because we find that the [Miranda] warnings
were inadequate, there is no need to assess the actual
voluntariness of the statement.”).

Further, the purpose of habeas remedies is to “‘put the
defendant back in the position he would have been in if the
[constitutional] violation never occurred.’” Nunes v. Mueller,
 LUJAN V. GARCIA 37

350 F.3d 1045, 1057 (9th Cir. 2003) (quoting United States
v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)); see also
Johnson v. Uribe, 682 F.3d 1238, 1244, opinion amended and
superceded on denial of reh’g, 700 F.3d 413 (9th Cir. 2012);
Chioino, 581 F.3d at 1184. Here, the remedy afforded to
Petitioner does just that – his improperly considered
confessions have been stripped from the record and cannot be
used in the government’s case-in-chief should Petitioner be
retried, nor can they be used as inculpatory evidence should
proceedings be initiated to modify his convictions in state
court. Nevertheless, Petitioner asks this Court to address the
issue of voluntariness because while “statements taken in
violation of only the prophylactic Miranda rules may not be
used in the prosecution’s case in chief, they are admissible to
impeach conflicting testimony by the defendant.” Harvey,
494 U.S. at 350. On the other hand, involuntary statements
may not come in at all. Mincey v. Arizona, 437 U.S. 385, 398
(1978).

Petitioner’s request is inconsistent with the record. Here,
Petitioner’s trial counsel declared under penalty of perjury
that Petitioner would not have testified absent the improper
admission of his custodial confession. As such, ruling now
on whether Petitioner’s custodial confession was involuntary
would not further the purpose of putting Petitioner back in the
position of a non-testifying criminal defendant – the position
he would have been in if the constitutional violation never
occurred. Rather, it would serve only to provide Petitioner a
potential advantage in the unlikely event this case is retried.

Accordingly, because the voluntariness issue is
extraneous to Petitioner’s request for federal habeas relief, we
decline to address it.
38 LUJAN V. GARCIA

CONCLUSION

We affirm the district court’s judgment insofar as it grants
Mr. Lujan’s Second Amended Petition pursuant to 28 U.S.C.
§ 2254, but vacate the judgment and conditional writ of
habeas corpus and remand with instructions to reissue the
judgment and writ consistent with this opinion.

Respondent Silvia Garcia shall bear costs in these cross-
appeals.

AFFIRMED in part, VACATED and REMANDED in
part.