Nelson Hernandez v. Kim Holland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NELSON HERNANDEZ, No. 11-55337
Petitioner-Appellant,
D.C. No.
v. 2:07-cv-07036-DSF-AGR

KIM HOLLAND, Warden,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding

Argued and Submitted
November 4, 2013—Pasadena, California

Filed April 24, 2014

Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea
2 HERNANDEZ V. HOLLAND

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition alleging a violation
of Miranda v. Arizona, 384 U.S. 436 (1966), based on a mid-
trial conversation between petitioner and a court bailiff.

During a recess in his trial, petitioner had a conversation
with a court bailiff during which he made inculpatory
statements about the details of the crime. The trial court
ruled that the conversation was not an “interrogation” and
permitted the bailiff to testify to the jury. The panel held
that this determination did not involve an unreasonable
application of Miranda or its Supreme Court progeny. The
panel also held that, despite respondent’s failure to brief the
issue, the deferential standard of review under the Anti-
Terrorism and Effective Death Penalty Act cannot be waived.

COUNSEL

Michael Weinstein (argued), Deputy Federal Public
Defender; Sean K. Kennedy, Federal Public Defender’s
Office, Los Angeles, California, for Petitioner-Appellant.

Tannaz Kouhpainezhad (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Dane R.
Gillette, Chief Assistant Attorney General; Lance E. Winters,

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

Senior Assistant Attorney General; Michael R. Johnsen,
Supervising Deputy Attorney General, Los Angeles,
California, for Respondent-Appellee.

OPINION

BEA, Circuit Judge:

We must decide whether, in the context of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, a mid-trial conversation between
a court bailiff and a criminal defendant constituted an
interrogation that must be preceded by a Miranda warning.
We decide that the state court’s determination that the
conversation was not such an inquiry was reasonable.

Petitioner Nelson Hernandez seeks habeas relief from his
state murder conviction on the ground that his right against
self-incrimination under Miranda v. Arizona, 384 U.S. 436
(1966), was violated. During a recess in his trial, Hernandez
had a conversation with the court bailiff. Hernandez made
inculpatory statements about details of the crime. The trial
court, over Hernandez’ objections, ruled that the conversation
was not an “interrogation” under Miranda and permitted the
bailiff to testify to the jury about the statements. On direct
appeal, the California Court of Appeal, in a reasoned
decision, also held that the conversation was not an
“interrogation” under Miranda. The Los Angeles County
Superior Court, California Court of Appeal, and the
California Supreme Court later denied Hernandez’ state
habeas petitions without opinion. The district court then
denied Hernandez’ federal habeas petition under AEDPA,
holding that the California Court of Appeal on direct appeal
4 HERNANDEZ V. HOLLAND

did not apply Miranda unreasonably in its decision and that
the decision was not based on an unreasonable determination
of facts in state court proceedings. We affirm.

Underlying Facts and Trial

On January 12, 2002, John McMillian picked up his
friend Marylin West from her evening shift at a grocery store
in the Wilmington area of Los Angeles, with plans to drive
her to dinner. West asked McMillian to bring her back to her
apartment complex first so she could change out of her work
uniform. McMillian obliged. He waited outside the complex
in the driver’s seat of the car while West went inside.

A short time later, around 9:30 p.m., West walked back
outside toward the car. As she walked, a heavy-set Hispanic
male in a dark, hooded sweatshirt approached her, riding a
black and silver bike. Her walkway was well lighted; West
stated at trial that she could see the man’s face clearly, and
identified Nelson Hernandez in court as the man she saw that
night. West also testified that she had seen Hernandez in the
apartment complex five to ten times before during the six
months prior to that night and had spoken to him briefly on
occasion. She testified that as she walked Hernandez began
to follow her and asked her name, who the man in the car
was, and where they were going.

As the two neared the car, a second, thinner Hispanic
male joined them. When the three reached the car, according
to West, Hernandez’ attention turned to McMillian. West
testified that she attempted to open the passenger door, but
that Hernandez “had opened” it first, and that he stood
 HERNANDEZ V. HOLLAND 5

“inside” of the opened door on the passenger side.1 The two
men began to ask McMillian who he was, where he was from,
and if he “gang-banged.”2 McMillian looked straight ahead
and replied that he did not “gang-bang” and did not live
around there. According to West, the two men repeated their
interrogation for some five minutes, while she pleaded with
them to leave her friend alone. Meanwhile, a group of about
fifteen Hispanic males gathered. An older man from the
group approached and said something like “don’t do it.” At
that point, according to West, Hernandez pulled the hood of
his sweatshirt over his head, produced a gun, and began firing
at McMillian. West ran and hid in some bushes; McMillian
died at the scene. When police arrived, they took West to the
station, where she identified Hernandez in two photo “six-
packs.” Hernandez, who at first could not be located, was
arrested several months later and charged with first-degree
murder.

At trial, Hernandez’ defense was that he was a hundred
miles away that night at a party and that West mistakenly
identified him. As noted, West placed Hernandez at the
scene. Despite West’s inability on cross-examination to
remember precise details about the murder, including whether
Hernandez had piercings or marks, or the makeup of the

1
On cross examination, West repeated that Hernandez opened the
passenger door of the car. This seemingly insignificant detail was the
subject of the critical portion of the conversation that Hernandez had with
the bailiff shortly after West’s testimony. As discussed below, who
opened the door matters not; that Hernandez was there, instead of 100
miles away at a party, matters a great deal.
2
McMillian was African-American and was in an area controlled by a
Hispanic street gang, the “Westside Wilmas.” Police officers testified that
Hernandez was a member of the gang; his gang name was “Humpty.”
6 HERNANDEZ V. HOLLAND

crowd that gathered, she told the jury that there was no
“uncertainty in [her] mind” that Hernandez was “the person
who shot John McMillian.” The jury evidently believed her.3

Conversation with the Bailiff

After West’s testimony the court took a morning recess.
The bailiff, Sheriff’s Deputy Donald Moore, escorted
Hernandez out of the courtroom and back to a lockup cell.
On the way there, Hernandez and Deputy Moore engaged in
the conversation that forms the basis of this appeal.

Deputy Moore’s version of the conversation was as
follows: he led Hernandez to the lockup cell after West’s
testimony. After passing through the door from the
courtroom toward the holding area, he asked Hernandez, “Are
you going to testify?” Hernandez replied that he “had an alibi
but that his attorney did not want him to use it.” Moore said
that “that was the end of” that “first conversation.” The two
were then silent for about “forty-five seconds to a minute” as
they proceeded up some stairs to the lockup cell area. When
they reached the landing at the top of the stairs, according to
Deputy Moore, Hernandez initiated a “second conversation”
on a “different topic” from the “topic as before that [we] had
been discussing.” To “initiate that conversation,” Hernandez
asked Moore “what [he] thought about [West’s] testimony.”
Deputy Moore told Hernandez “I thought she was nervous
and [the defense] attorney tripped her up a little bit.” At this,
according to Deputy Moore, Hernandez “immediately blurted
out that ‘the bitch couldn’t recall anything. She opened the
door, we didn’t’—excuse me—‘she didn’t open the door, we

3
They believed West, despite her impeachment with a criminal record
of forgery, providing a false financial statement, and grand theft.
 HERNANDEZ V. HOLLAND 7

did.’”4 Although Deputy Moore was at first “overwhelm[ed]”
by the statement, and was initially unsure whether Hernandez
said that “she” or “we”opened the door, Moore testified he
was certain that one of the two statements—either “she” or
“we” opened the door—was correct. Upon further reflection,
Moore determined that Hernandez said “she didn’t open the
door; we did.” Deputy Moore wrote that version of the
statement down. That, stated Moore, was the “entire
conversation.”5

According to Moore, he asked the question “Are you
going to testify?” only out of “curiosity,” and “just to see”
about the “length of the trial,” “because the D.A.’s case was
moving along pretty fast, and I took the assumption that the
case was almost over.” Moore also said it was his
“preference” to talk to prisoners to let him “understand the
defendant and how he’s going to react in court” for “security
purposes.”

In Hernandez’ version of the conversation, Moore asked
no questions at all before Hernandez started talking first.6

4
West, as stated above, had testified that Hernandez opened the car
door.
5
Moore admitted that he never gave Hernandez Miranda warnings at
any point.
6
When asked at the suppression hearing by his own defense counsel,
“Do you think it’s accurate that, when you walked behind the east door,
[Moore was] the first one that said something to you?,” Hernandez said
“no.” When defense counsel asked “did you say anything to him first?”
Hernandez answered “yes.” Hernandez testified that he heard Moore at
some point say “Are you going to testify?” but repeated that Moore was
not the first to speak. On Hernandez’ cross-examination, the following
exchange took place:
8 HERNANDEZ V. HOLLAND

Hernandez said that he started the conversation by asking
Moore “How [do you] think my case is looking?” Moore
responded, “I seen people walk on worse[] things than this.”
After the two got up the stairs to lockup, Hernandez, in
reference to West, said “I think this girl’s lying.” Moore
replied, “Why is that?” Hernandez answered “because in the
police report it says that she stated she opened up the door.
And then, of course, she said I opened up the door.”
Hernandez insisted that he did not say that “we” opened the
door, or that “she” did, but was only pointing out that there
was a discrepancy between West’s testimony and the police
report that quoted her.

Suppression Hearing

After the conversation, Moore informed the court clerk
and court reporter what had happened. (A detective, who was
in the courtroom as a prosecution witness, also overheard
what Moore told them). Moore then spoke to both counsel,
and ultimately to the court. The judge relieved Moore from
courtroom duty immediately and scheduled a hearing for the
next morning, Friday, September 12, at 9:00 a.m., to

[Prosecutor]: Sir, it’s your testimony that you initiated
the conversation with Deputy Moore?

A. Did I start the conversation first?

Q. Yes.

A. Yes.

Q. Deputy Moore did not. That is your testimony,
right?

A. Yes.
 HERNANDEZ V. HOLLAND 9

determine what to do about the unexpected development.
Scheduled prosecution testimony continued through the
afternoon.

At the Friday morning hearing, the prosecutor said that he
would call Moore as a witness. Defense counsel objected to
Moore’s proffered testimony and moved to exclude it.
Defense counsel first argued that the judge could not “fairly
judge the credibility” of the bailiff in an evidentiary hearing
because of their relationship, and that the judge should recuse
himself. Defense counsel also requested a continuance so he
could consider whether to file a Pitchess motion7 and so he
could investigate what happened in the conversation. The
judge stated that a continuance would result in a certain
mistrial because the jury was scheduled to sit only for three
more days. But the court deferred ruling for the morning,
ordered Moore to make a written report about the

7
A Pitchess motion asks for “access to records of complaints, or
investigations of complaints, or discipline imposed as a result of those
investigations” of “law enforcement and custodial personnel.” See
Pitchess v. Superior Court, 555 P.2d 305 (Cal. 1974), superseded by Cal.
Penal Code §§ 832.7, 832.8, Cal. Evid. Code §§ 1043–1045. The motion
must include an affidavit “showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief that
the governmental agency identified has the records or information from
the records.” Cal. Evid. Code § 1043(b)(3). The “materiality” prong can
be “satisfied by general allegations which establish some cause for
discovery,” but must be “requested with adequate specificity to preclude
the possibility that defendant is engaging in a ‘fishing expedition.’” City
of Santa Cruz v. Mun. Court, 260 Cal. Rptr. 520, 526 (Cal. 1989) (citation
omitted). Once good cause is shown, the court then makes an in camera
examination of the records to see whether they are relevant to the
“pending litigation,” but with instructions that the court is to take into
careful account the “privacy interests” of the officer. Cal. Evid. Code
§ 1045.
10 HERNANDEZ V. HOLLAND

conversation, and scheduled an evidentiary hearing for the
afternoon to determine whether Hernandez’ Miranda rights
were violated. Previously scheduled prosecution testimony
then continued.

At the afternoon hearing, defense counsel renewed his
request for a continuance until the next Monday, citing
“potential conflict issues” with himself and people in his
office and “potential for my testimony.”8 The court denied
the request, reasoning that if it granted a continuance it would
“lose this jury” because their decision was scheduled to be
rendered by Tuesday afternoon, and the prosecution had not
yet closed its case. The judge also refused to recuse himself.
Moore then testified about the conversation. Defense counsel
asked permission to call the court reporter, the court clerk,
and the detective who were present when Moore first reported
the conversation.9 The court denied the requests without

8
Counsel did not mention a Pitchess motion as a reason for his renewed
request for a continuance. Nor did he explain what the “potential conflict”
might be. Further, he made no proffer as to the subject matter of any of
his potential testimony.
9
It was apparently only during the course of Deputy Moore’s testimony
that defense counsel learned that Moore reported the conversation to the
clerk, court reporter, and detective. Defense counsel asked Moore on
cross-examination which people he told “about the statement” “She didn’t
open the door, we did.” Moore said he told the clerk, and that the court
reporter and detective were present. Defense counsel, however, did not
ask Moore what exactly he told the clerk, other than that Moore told her
“about the statement.” Counsel did not request a recess to interview the
potential witnesses. Further, counsel made no proffer of proof that he
intended to adduce from these persons. Counsel evidently did not know
what the witnesses might say; he asked to call the reporter because “I’d
like to hear what she has to say.” The court denied the request.
 HERNANDEZ V. HOLLAND 11

explanation. Hernandez then testified to his version of the
conversation.

Trial Court Ruling: No Miranda Interrogation

The court then heard counsels’ argument on the motion to
suppress Deputy Moore’s testimony. Defense counsel stated
that he wanted the court to exclude Moore’s testimony
“notwithstanding the fact that both my client and the deputy
have essentially testified that it was a consensual, non-
interrogation style encounter” because “the circumstances and
the unusual relationship that exist between a jailer and a
person in custody are inherently—create a situation that is
inherently similar to an interrogation.” The prosecutor
responded that “there was clearly no Miranda violation as
there was no interrogation as required by the custodial
interrogation aspects of Miranda.” The court agreed with the
prosecutor:

I’m satisfied there’s no Miranda violations.
There was no interrogation. There was one
question according to the bailiff—but I don’t
think it had anything to do with this statement,
nor did it have anything really to do with this
case except for scheduling, and so I find no
Miranda violation.

The court also stated “I don’t think it’s my role here to
determine which interpretation should be given to the words
that were spoken or even make a determination as to what
words were spoken. That’s a jury function.”

The judge accordingly permitted Deputy Moore to testify
to the jury, with the instruction directly after Moore’s
12 HERNANDEZ V. HOLLAND

testimony that the jury was not to give Moore’s testimony any
extra weight because he was the court’s bailiff. Moore
admitted to the jury that there were “two possibilities” of who
Hernandez said opened the car door, but settled on “she
didn’t open the door. We did.” After Moore’s testimony,
which obviously placed Hernandez at the scene no matter
who he said opened the car door, and thus bolstered West’s
identification of Hernandez, the state rested. Hernandez did
not take the stand in his case-in-chief, wherein two alibi
witnesses—including his mother—said he was at a party in
another city that night. The jury convicted.

Post-conviction Proceedings

On direct appeal, the California Court of Appeal affirmed
the conviction and held, in a reasoned decision, that there had
been no Miranda interrogation because “the bailiff’s neutral
question was not the functional equivalent of interrogation
because it was not the type of question likely to elicit an
incriminating response.” The California Supreme Court
denied review without opinion.

After Hernandez’ state habeas petitions were denied,
Hernandez filed a pro se 28 U.S.C. § 2254 federal habeas
petition, in part on the ground that the trial court erred in
allowing Moore to testify. The district court denied the
petition because, under AEDPA, there had been no
unreasonable application of federal precedent or unreasonable
finding of fact in permitting Moore’s testimony. We granted
Hernandez a certificate of appealability on the following
issue: “whether appellant’s rights, under Miranda v. Arizona,
384 U.S. 436 (1966), were violated by the trial court’s
admission of the court bailiff’s testimony.” We now affirm.
 HERNANDEZ V. HOLLAND 13

Standard of Review

AEDPA bars the relitigation in federal court of any
habeas claim that was “adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d). There are two
narrow exceptions: a petitioner may bring an adjudicated
habeas claim if 1) the state court’s adjudication of the claim
has “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” or 2) the adjudication “resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” Id.
A federal court must analyze the “last reasoned decision” of
the state court—here, the California Court of Appeal opinion
that rejected Hernandez’ state direct appeal. Ylst v.
Nunnemaker, 501 U.S. 797, 804–06 (1991); Delgadillo v.
Woodford, 527 F.3d 919, 925 (9th Cir. 2008). We review de
novo a district court’s decision to deny a state convict’s
federal habeas petition. Bribiesca v. Galaza, 215 F.3d 1015,
1018 (9th Cir. 2000).

Discussion

Under AEDPA, Hernandez must show either 1) that the
California Court of Appeal’s decision on direct appeal was an
unreasonable application of federal law, as “clearly
established” by Supreme Court precedent, or 2) that its
decision rested on an underlying unreasonable determination
of fact. Hernandez argues that both statutory grounds are
met. First, he asserts that the California Court of Appeal’s
application of Miranda and of Rhode Island v. Innis, 446 U.S.
291 (1980) to find that the conversation with the bailiff was
not an “interrogation” was objectively unreasonable. Second,
14 HERNANDEZ V. HOLLAND

he argues that the trial court’s fact-finding process in
allowing Moore to testify was so defective—an un-recused
judge, denial of continuance, refusal to hear the clerk,
reporter, and detective—that the Court of Appeal’s decision
rested on an unreasonable determination of fact. Third,
Hernandez argues that those procedural deficiencies were so
egregious as to be themselves an objectively unreasonable
application of federal law. The Warden has made our task
more difficult by briefing only Hernandez’ first contention:
that Deputy Moore improperly interrogated him to produce
the incriminatory admission. We accordingly attend to that
contention first, then turn to the other two arguments and
discuss the result of the Warden’s failure to brief those issues.

I. The California Court of Appeal did not unreasonably
apply Miranda or its Supreme Court progeny.

For a “federal court to find a state court’s application of
[Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003). Instead, the
application must have been “‘objectively unreasonable.’” Id.
AEDPA thus precludes a federal court from granting habeas
relief if “fairminded jurists could disagree” whether the state
court incorrectly applied federal Supreme Court precedent.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

The precedents at issue here are Miranda and its Supreme
Court progeny. They forbid a prosecutor from using
statements “stemming from custodial interrogation of the
defendant unless [he] demonstrates the use of procedural
safeguards” such as the familiar Miranda warnings: that the
accused has the right to remain silent, to consult with an
attorney, and to have his counsel present with him during
 HERNANDEZ V. HOLLAND 15

questioning. 384 U.S. at 444. The parties here do not dispute
that Hernandez was in “custody” for Miranda purposes or
that Deputy Moore never gave Hernandez Miranda warnings.
Instead, the question is whether the California Court of
Appeal was “objectively unreasonable” when it found that the
conversation between the two did not amount to an
“interrogation” under federal Supreme Court precedent.

The Supreme Court has instructed that an “interrogation”
is “any words or actions on the part of the police . . . that the
police should know are reasonably likely to elicit an
incriminating response from the suspect.” Innis, 446 U.S. at
300–01 (1980) (footnote omitted).10 Nevertheless,
“‘[v]olunteered statements of any kind are not barred by the
Fifth Amendment.’” Id. at 300, quoting Miranda, 384 U.S.
at 478); see also United States v. Sherwood, 98 F.3d 402, 409
(9th Cir. 1996) (“‘Spontaneous’ or ‘volunteered’ confessions
of a suspect in custody are admissible despite the absence of
a prior Miranda warning.”).

As the district court noted below, Hernandez initiated a
second conversation by asking Moore a question after the two

10
In Innis, two officers arrested a robbery suspect and put him in the
back seat of the patrol car. As they drove to the police station, the officers
engaged in a conversation within Innis’ hearing about the missing weapon,
which the officers stated was being searched for in an area near a school
for handicapped children. One officer expressed to the other his concern
that a child could be hurt by the missing firearm. At this, Innis
“interrupted the conversation, stating that the officers should turn the car
around so he could show them where the gun was located.” 446 U.S. at
295. The Supreme Court held that the officers’ conversation did not
amount to “interrogation” because the officers had no reason to know that
their “conversation was reasonably likely to elicit an incriminating
response from” Innis. Id. at 302.
16 HERNANDEZ V. HOLLAND

walked up the stairs and were on a different topic. Hernandez
v. Hedgpeth, CV-07-7036-DSF-AGR, 2011 WL 488402 at *8
(C.D. Cal. 2011) report and recommendation adopted, CV
07-7036-DSF AGR, 2011 WL 503530 (C.D. Cal. Feb. 7,
2011), citing Miranda, 384 U.S. at 478.

Assuming that Deputy Moore’s version of events is
correct,11 there was a gap of some forty-five seconds to a
minute between Moore’s question “Are you going to testify?”
and Hernandez’ question “What did you think of [West’s]
testimony?” To be sure, it would be reasonable to conclude
that the walk up the stairs was only a pause in an extended
discussion that Deputy Moore—and not Hernandez, again
assuming Hernandez’ version is wrong—started about the
case. But it is also reasonable to see two conversations, the
second initiated by Hernandez, followed by Hernandez’
“spontaneous” and “volunteered” “blurt[ing] out” that West
“couldn’t remember anything.” It is particularly reasonable
to see two conversations because Hernandez changed topics
after the walk up the stairs: from himself and his own un-used
alibi to West and her veracity. In light of Supreme Court
precedent about volunteered or spontaneous statements, the
California Court of Appeal was not thus “unreasonable” in its
determination that there was no “interrogation” and that
Hernandez’ inculpatory diatribe as to West was volunteered.

More important, we cannot say that the California Court
of Appeal was unreasonable when it found that Moore’s
question was not itself an “interrogation.” The Court of
Appeal specifically applied Innis to Hernandez’ facts, and

11
If Hernandez’ own version of events is correct, Moore said nothing
until Hernandez spontaneously initiated the entire conversation.
Hernandez chose not to testify to his version before the jury.
 HERNANDEZ V. HOLLAND 17

found that Deputy Moore’s question “Are you going to
testify?” was a “neutral question which called only for an
equally neutral answer. [Hernandez], for example, could
have answered ‘Yes,’ ‘No’ or ‘Maybe.’” People v.
Hernandez, B170634, 2004 WL 2428700 at *8–9 (Cal. Ct.
App. 2004) (unpublished).

Of course, no matter Moore’s claim that his reason for
asking the question was merely to check the timing of the
trial, Innis demands that we ask whether Moore “should have
known” that his question “Are you going to testify?”12 was
“reasonably likely to evoke an incriminating response.”
Innis, 446 U.S. at 301. To be sure, it would not be
unreasonable to take Moore’s question as prying for
information about the crime, the equivalent of “She says
you’re guilty—what’s your side of the story?” Such a
question, so construed, might be reasonably likely to provoke
an incriminating response.

However, we think that it would also be reasonable to
conclude that the question was “neutral,” a request simply to
know whether Hernandez would take the stand, just as
Hernandez clearly took it when he answered that he indeed
would not testify. Moreover, it would be reasonable to find
that Moore neither could nor should have known that his
question would elicit an incriminating statement. Moore was
aware, having been the bailiff during opening statements and
West’s cross-examination, that Hernandez’ entire trial
strategy was to claim mistaken identification. It would be
reasonable to conclude that Moore could never expect that his
simple question would prompt Hernandez to correct the

12
Again assuming, contrary to Hernandez’ testimony, that Moore, and
not Hernandez, initiated the conversation with this question.
18 HERNANDEZ V. HOLLAND

details of West’s testimony as a claimed percipient witness to
West’s actions at the scene of the crime. The possibility of
such a response would be so unlikely as to take any officer
completely aback—just as Moore said happened. See Innis,
446 U.S. at 302–03 (holding that, “under the circumstances,”
including the officers’ lack of knowledge that Innis might
respond with concern for handicapped children, the officers’
comments about the murder weapon were not “particularly
‘evocative’”). We therefore again cannot say that the
California Court of Appeal was unreasonable in its
application of clearly established Supreme Court precedent
when it determined that Deputy Moore did not “interrogate”
Hernandez.

Hernandez suggests four reasons why he nevertheless was
interrogated. None is availing. First, Hernandez argues that
his youth (nineteen at the time) “made him more susceptible
to the coercive pressures of interrogations” when the deputy
“confronted” him. He cites J.D.B. v. North Carolina, 131 S.
Ct. 2394 (2011), for the proposition that the Supreme Court
has acknowledged that “juveniles do not have the mental,
physical, and emotional ability to deal with the coercive
pressures of interrogations as well as adults can.” But J.D.B.
was about whether “the Miranda custody analysis includes
consideration of a juvenile suspect’s age.” J.D.B., 131 S. Ct.
at 2401 (emphasis added). A Miranda custody
analysis—whether Hernandez would have felt “free to leave,”
id. at 2399—is not in question here. Instead, the question
here is whether Hernandez was being interrogated at all;
Hernandez has given no reason why his youth affected
Moore’s knowledge that his question had any possibility of
leading Hernandez to talk about who opened the car door, and
who was there to observe the event. See Innis, 446 U.S. at
302 (“There is nothing in the record to suggest that the
 HERNANDEZ V. HOLLAND 19

officers were aware that the respondent was peculiarly
susceptible to an appeal to his conscience . . . .”). It was
therefore again not objectively unreasonable for the
California Court of Appeal to see the question as neutral,
even if it considered Hernandez’ youth.

Second, Hernandez argues that the “timing of the
encounter” turned the conversation into an interrogation
because he had just been “confronted” with a witness who
accused him of murder. Hernandez argues that he was being
“forced to answer a law enforcement officer’s question”
during the “heat of trial,” meaning, presumably, that the
question was in effect a cross-examination. But neither
version of the conversation reveals anything resembling
coercion. And even if Hernandez’ view is reasonable, it does
not make the alternate view that the question was “neutral”
unreasonable beyond the agreement of fairminded jurists.
And again, all that assumes that Moore’s version of the
conversation—and not Hernandez’ own—is accurate. If
Hernandez’ version is accurate, Hernandez initiated whatever
conversation took place, and his question could not
reasonably be interpreted as a request that he be interrogated.

Third, Hernandez argues that the “physical setting” turned
the encounter into an interrogation: “isolated, handcuffed, and
alone, he was confronted by a presumably armed deputy
sheriff” and by the “evidence against him.” But the
defendant in Innis, for example, was found not to have been
interrogated even though he was confined in the back seat of
a police car and was “confronted” by two armed officers who
were driving him to a police station while talking about the
murder weapon. 446 U.S. at 294–95. And it bears repeating
that Hernandez’ own testimony was that he pressed the issue
on Deputy Moore.
20 HERNANDEZ V. HOLLAND

Fourth, Hernandez argues that “[a]ny defendant could
reasonably interpret [Moore’s] question . . . as an inquiry to
see what they thought of the evidence the prosecutor had just
introduced at trial” and thus was a question that was
reasonably likely to elicit an incriminatory response. We
have already largely addressed this point. There is nothing
unreasonable in construing Deputy Moore’s question exactly
as Hernandez wishes. But neither would a court be
objectively unreasonable in construing it as a neutral
question, with an unreasonably low probability of evoking the
response, in effect, “That’s not how it was; I was there.”13

In sum, while we might have found differently had we
been the trial judge or the California Court of Appeal, the
Court of Appeal was not “objectively unreasonable” when it
found no Miranda interrogation. The district court was
accordingly correct that it could not grant relief under
AEDPA on this theory. We turn to Hernandez’ other theories
of relief, but pause first to discuss a disturbing error on this
appeal by the Warden.

13
Hernandez’ supplemental citation to U.S. v. Hunter, 708 F.3d 938 (7th
Cir. 2013), only makes the Warden’s point. In Hunter, the suspect was in
the hospital after being shot by police while fleeing a felony, and asked an
officer to call his mother, father, and a lawyer. The officer asked “What
do you want me to tell these people?,” which prompted an incriminating
response. The Seventh Circuit held that the question was an interrogation
and an “invitation to disaster,” and rhetorically asked “what answer could
[Hunter] give . . . that would not be incriminatory?” Id. at 947–48. The
answer to the same rhetorical question in Hernandez’ case, however, could
be just what the California Court of Appeal reasonably said: when Moore
asked “Are you going to testify?,” Hernandez could have answered “Yes,”
“No,” or “Maybe”—and then initiated nothing further—or answer as he
did: “I have an alibi but my attorney doesn’t want me to use it.” None of
these responsive answers would have placed him at the crime scene when
McMillian was shot to death.
 HERNANDEZ V. HOLLAND 21

II. Respondent’s failure to brief and AEDPA

Hernandez briefed fully his three theories of relief:
unreasonable application of Miranda, deficient fact-finding
at the trial court level, and unreasonable application of federal
law because of that deficient fact-finding. The Warden,
however, briefed a response only to the first theory and
ignored the other two theories entirely. Hernandez in his
reply brief pointed out that silence and argued that the
Warden waived the two unanswered issues, that AEDPA
accordingly did not apply to bar relief, and thus that he was
entitled to a review of the Miranda issue de novo and without
AEDPA’s “objectively unreasonable” standard of review.14
At oral argument, the panel questioned Respondent’s attorney
about her failure to brief. Counsel repeatedly apologized, but
offered no reason why the oversight happened.

This court then ordered supplemental briefing on the
following questions: “1) Can the State waive the argument
that the [AEDPA] standard of review applies; and 2) If so,
should the court exercise its discretion to treat the State’s
failure to brief this issue as a waiver and thus review the
merits of Appellant’s claims de novo?” The parties filed
letter briefs. After review, we conclude that—despite the
Warden’s counsel’s unexplained and unexcused error—did
not waive AEDPA’s standard of review, nor did the failure to
brief constitute concession or waiver of the legal issues at
stake.

14
See Maxwell v. Roe, 628 F.3d 486, 494–95 (9th Cir. 2010) (“[W]hen
a state court adjudication is based on an antecedent unreasonable
determination of fact, we proceed to consider the petitioner’s related claim
de novo.”).
22 HERNANDEZ V. HOLLAND

a. There has been no waiver of AEDPA’s standard of
review.

The week before this panel heard oral argument in this
case, the Ninth Circuit handed down an opinion in another
AEDPA case, Amado v. Gonzalez, 734 F.3d 936 (9th Cir.
Oct. 30, 2013). Neither party in that case addressed the
proper standard of review in its briefs, but we held that we
had “the obligation to apply the correct standard, for the
[AEDPA standard] is non-waivable.” Id. at 946; see also Eze
v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003) (“AEDPA’s
standard of review . . . is not a procedural defense, but a
standard of general applicability for all petitions filed by state
prisoners after the statute’s effective date presenting claims
that have been adjudicated on the merits by a state court.”).
Thus, as both parties agreed in their letter briefs, the AEDPA
standard of review itself cannot be waived.

b. The panel will address Hernandez’ theories.

Hernandez nevertheless urges in his letter brief that we
hold that the Warden has waived any argument that the trial
court’s decision did not rest on an unreasonable determination
of the facts, or that the Warden by silence has conceded that
the trial court’s decision rested on unreasonable
determination of the facts or unreasonable application of law
under 28 U.S.C. § 2254(d). Accordingly, Hernandez again
asks us to review the state court adjudication of the Miranda
question de novo, without AEPDA’s standard of review.

But even if the Warden by silence conceded that AEDPA
does not bar issuance of the writ, such concession cannot bind
us. See United States v. Miller, 822 F.2d 828, 832 (9th Cir.
1987) (holding that appeals panel cannot be “bound by the
 HERNANDEZ V. HOLLAND 23

government’s ‘erroneous view of the law’”) (citations
omitted).15 We will evaluate for ourselves AEDPA’s
directives to determine whether we must view the sole issue
posed by the Certificate of Appealability—whether
Hernandez’ Miranda rights were violated by the admission of
Moore’s testimony—through AEDPA’s deferential lens.16

15
See also Leslie v. Attorney Gen. of U.S., 611 F.3d 171, 174 n.2 (3d
Cir. 2010) (chastising government for arguing in appellee’s brief only
jurisdiction and not responding to the merits of petitioner’s opening brief
that argued that his due process rights were violated by deficient notice of
a removal hearing, which “fail[ed] to assist the Court in evaluating the
specifics of Petitioner’s arguments [and] required the Court to conduct a
special, searching analysis of Petitioner’s contentions,” but making “clear
that the answering party’s dereliction, as here, could not constitute a
waiver because, in the final analysis, it is for the Court to evaluate the
issues presented by the appellant or petitioner,” and construing the failure
to argue as a failure to brief, the remedy for which under Fed. R. App. P.
31(c) was waiver of oral argument on the issue).
16
But we should not have to do so without the assistance of one of the
parties. We, like the Leslie court, express our displeasure with the
Warden’s lawyers in this case. As the Supreme Court has cogently
explained, we “rely on the parties to frame the issues for decision and to
assign to courts the role of neutral arbiter of matters the parties present
. . . . [A]s a general rule, ‘[o]ur adversary system is designed around the
premise that the parties know what is best for them, and are responsible
for advancing the facts and arguments entitling them to relief.’” Greenlaw
v. United States, 554 U.S. 237, 243–44 (2008) (internal quotation marks
omitted).
24 HERNANDEZ V. HOLLAND

III. There was no “unreasonable determination of the
facts.”

a. Standards of review

A state court’s decision is based on unreasonable
determination of the facts under §2254(d)(2) if the state
court’s findings are “unsupported by sufficient evidence,” if
the “process employed by the state court is defective,” or “if
no finding was made by the state court at all.” Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004). While “not
impossible to meet,” that is a “daunting standard—one that
will be satisfied in relatively few cases,” especially because
we must be “particularly deferential to our state-court
colleagues.” Id. at 1000. Thus,

before we can determine that the state-court
factfinding process is defective in some
material way, or perhaps non-existent, we
must more than merely doubt whether the
process operated properly. Rather, we must
be satisfied that any appellate court to whom
the defect is pointed out would be
unreasonable in holding that the state court’s
fact-finding process was adequate.

Id. (emphasis added). That is because § 2254(d) “reflects the
view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation
omitted).
 HERNANDEZ V. HOLLAND 25

b. Hernandez’ claims.

Hernandez argues that the suppression hearing on Deputy
Moore’s testimony was defective and inadequate for three
reasons: 1) the trial court held the admissibility hearing on
Moore’s testimony in an “unreasonably short time frame” and
should have granted a continuance, 2) the judge did not
recuse himself before the hearing even though he had worked
with Moore for two years, and 3) the judge did not allow
“necessary and appropriate” witnesses—the clerk, reporter,
and detective to whom Moore reported the conversation with
Hernandez—to testify. Additionally, Hernandez argues that
the fact-finding process was so defective for those three
reasons that the trial court (and Court of Appeal)
unreasonably applied clearly established federal precedent
that requires “minimum procedures” for the “ascertainment
of the truth” that provide a “constitutionally adequate
opportunity to be heard.” Panetti v. Quarterman, 551 U.S.
930, 949, 952, 954 (2007) (citation omitted).

Hernandez’ pro se petition states that he should be
granted relief because “[a]llowing the bailiff to testify” was
“prejudicial error for [multiple] reasons as was a denial of
continuance or a mistrial.” Hernandez stated on his petition
form that he had brought the claim up on direct appeal to the
California Court of Appeal. Hernandez therefore has clearly
presented us with the lack of continuance issue. However,
although we construe pro se petitions liberally, Allen v.
Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005), lack of
recusal appears to be an entirely new theory in this appeal. It
was mentioned briefly in the trial court, but was distinctly
argued neither in the district court nor in the California Court
of Appeal on direct appeal. We therefore do not address it.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As
26 HERNANDEZ V. HOLLAND

a general rule, we will not consider arguments that are raised
for the first time on appeal.”); Picard v. Connor, 404 U.S.
270, 275 (1971) (holding that a claim is exhausted for federal
habeas purposes if it “has been fairly presented to the state
courts”).

Additionally, it is not clear that the court staff witnesses
issue was squarely argued to the district court—there is no
mention of it in the court’s decision.17 (Hernandez did,
however, raise it clearly in the California Court of Appeal.)
Nevertheless, even if issue is properly preserved, we hold that
neither the trial court’s denial of a continuance nor its refusal
to call the courtroom witnesses constituted an unreasonable
determination of the facts.

c. Failure to grant a continuance did not result in an
“unreasonable determination” of fact.

Both the California Court of Appeal and the district court
considered the trial judge’s failure to grant a continuance to
allow the defense to pursue the goals vaguely stated. They
concluded, respectively, that there was no abuse of discretion
or unreasonable application of law or unreasonable finding of
fact. People v. Hernandez, B170634, 2004 WL 2428700, at
*10 (Cal. Ct. App. 2004); Hernandez v. Hedgpeth,
CV-07-7036-DSF-AGR, 2011 WL 488402, at *8–9 (C.D.
Cal. 2011). The district court was correct. “There are no
mechanical tests for deciding when a denial of a continuance

17
See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir. 1995)
(holding that an “argument must be raised sufficiently for the trial court
to rule on it” and that “nowhere in the district court’s opinion does the
issue . . . appear, which is further indication that [appellant] did not raise
the issue with the district court”).
 HERNANDEZ V. HOLLAND 27

is so arbitrary as to violate due process. The answer must be
found in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time the
request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589
(1964); see also Morris v. Slappy, 461 U.S. 1, 11–12 (1983)
(“[B]road discretion must be granted trial courts on matters
of continuances; only an unreasoning and arbitrary ‘insistence
upon expeditiousness in the face of a justifiable request for
delay’” would violate a constitutional right) (quoting Ungar,
376 U.S. at 589).

At the first hearing after the court discovered the
conversation between Moore and Hernandez, on Friday
morning, defense counsel asked for a continuance to get a
report from Moore of what happened. The court ordered
Moore to provide one. Counsel then suggested that he
needed a continuance to make a Pitchess motion. But Moore
had been a deputy for only three years, and had been the
court’s bailiff for the past two of those three. Both Moore
and the judge made clear that nothing like this had ever
happened before. The court therefore reasonably considered
that a continuance to go through the process of a Pitchess
motion would likely reveal nothing and weighed that against
the strong likelihood of a mistrial.18 The decision not to grant
the continuance in the face of trial scheduling was therefore
not “unreasoning” or “arbitrary.” Morris, 461 U.S. at 11–12.

18
As it turned out, Hernandez did not contradict Deputy Moore’s
version of the conversation in any way that would have altered the critical
conclusion that Deputy Moore did not interrogate Hernandez. Thus,
anything in Moore’s file that might have impeached him would not have
made a difference to that discrete issue. Whether a history of false
accusations of prisoners would have made a difference to Deputy Moore’s
credibility to the jury about the content of Hernandez’ statement about the
car door is beyond the scope of our Certificate of Appealability.
28 HERNANDEZ V. HOLLAND

Counsel also asked for a continuance at the evidentiary
hearing itself at noon because he or colleagues in his office
might have some “conflicts” he needed to investigate, that
there were “serious issues regarding my representation,” and
that he might even need to testify. But counsel did not state
the nature of the “conflict” or the “serious issues,” nor did he
explain what he would need to testify about. Nor did he
request an ex parte hearing to give some substance to his
conclusory claims. Rather, he then proceeded anyway. We
therefore have no basis to consider the court unreasonable on
this point.

Finally, counsel asked for a continuance because he had
not had time to investigate the facts. But both Deputy Moore
and Hernandez were thoroughly examined and cross-
examined at the hearing, and, critically, differed on the facts
only in two material ways. Deputy Moore candidly stated
that he started the entire conversation with “Are you going to
testify?”; Hernandez insisted that he, Hernandez, started the
conversation himself by asking “How do you think my case
is looking?” The two also did not agree about the content of
Hernandez’ statement about the car door, but that was not
relevant to the issue whether there was an interrogation.
Thus, a continuance for investigation over the weekend could
have added no relevant facts to the only question before the
court at the hearing: was the conversation between the
testifying conversants an interrogation within the meaning of
Miranda? The factfinding process of the trial court was
adequate to answer that question. The trial court therefore
also did not unreasonably misapply applicable federal due-
process precedent by depriving Hernandez of “minimum
procedures” for the “ascertainment of the truth” or a
“constitutionally adequate opportunity to be heard.” Panetti,
551 U.S. at 949, 952, 954. We accordingly cannot say on this
 HERNANDEZ V. HOLLAND 29

issue that the trial court’s findings were “unsupported by
sufficient evidence,” or based on a “defective” process, nor
that § 2254(d)’s “daunting” standard has been overcome.
Taylor, 366 F.3d at 999, 1000.

d. Failure to call witnesses.

Under the Due Process Clause of the Fourteenth
Amendment, criminal defendants must be afforded a
meaningful opportunity to present a complete defense.
California v. Trombetta, 467 U.S. 479, 485 (1984). The Sixth
Amendment, as incorporated by the Fourteenth Amendment,
grants an accused the right to call witnesses in his favor.
Rock v. Arkansas, 483 U.S. 44, 52 (1987).19 But it is

normally within the power of the State to
regulate procedures under which its laws are
carried out, including the burden of producing
evidence and the burden of persuasion, and its
decision in this regard is not subject to
proscription under the Due Process Clause
unless it offends some principle of justice so
rooted in the traditions and conscience of our
people as to be ranked as fundamental.

Patterson v. New York, 432 U.S. 197, 201–02 (1977) (internal
quotation marks omitted); see also Crane v. Kentucky,
476 U.S. 683, 690 (1986) (“[W]e have never questioned the
power of States to exclude evidence through the application
of evidentiary rules that themselves serve the interests of
fairness and reliability even if the defendant would prefer to

19
We note that a California judge can order persons within his presence
to testify, without the service of subpoena. See Cal. Evid. Code § 770.
30 HERNANDEZ V. HOLLAND

see that evidence admitted.”). Furthermore, to make out a
constitutional violation, a petitioner must “at least make some
plausible showing of how [a witness’] testimony would have
been both material and favorable to his defense.” United
States v. Valenzuela-Bernal, 458 U.S. 858, 859 (1982).

Thus, to violate AEDPA, Hernandez would have to make
a plausible showing that some disallowed evidence would
have aided him and that the trial court in disallowing it
misapplied some Supreme Court-decreed “fundamental”
“principle of justice,” Patterson, 432 U.S. at 201–02, or
rendered the evidentiary hearing “unsupported by sufficient
evidence,” or “defective,” to the point that “any appellate
court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding
process was adequate.” Taylor, 366 F.3d at 999, 1000
(emphasis added).

At the afternoon hearing, Hernandez wished to call the
court reporter, the court clerk, and a detective who was also
a trial witness. These three heard Deputy Moore report
something about his conversation with Hernandez. Defense
counsel attempted to call these witnesses, but the court
refused, without explanation. Hernandez argues that the court
should not have refused him the right to call these “necessary
and appropriate” witnesses. Doing so, Hernandez argues,
resulted in his “being deprived of an opportunity to present
relevant and perhaps exculpatory evidence.” He points out
that the witnesses were all present, and asserts that examining
them would not have “greatly expanded” the hearing.

The California Court of Appeal inferred, however, that
the testimony of the extra witnesses would have been
cumulative. A California trial judge has broad discretion to
 HERNANDEZ V. HOLLAND 31

exclude cumulative evidence. Cal. Evid. Code § 352(a).
Moore testified in the hearing and in front of the jury to both
versions of Hernandez’ statement—“she” or “we” opened the
car door—and admitted that at first he could not remember
which was accurate. Thus, the California Court of Appeal
reasoned, no matter which version of Hernandez’ statement
the bailiff reported to the court staff witnesses, all versions
placed Hernandez at the scene of the crime, and not 100 miles
away.

Given the great importance of Deputy Moore’s testimony,
of course, the court would have been reasonable to allow the
witnesses. But a reasonable appellate court could also find,
as the Court of Appeal did, that their testimony would have
been cumulative under well-settled rules of evidence and thus
not necessary to the court’s factfinding on Miranda.
Hernandez heard Moore testify and was asked at the
suppression hearing whether Moore’s testimony was
accurate. Given this chance, Hernandez corrected only the
points that he, Hernandez, spoke first, and then disputed
precisely what he had said about the car door. Once
Hernandez testified essentially to the same facts as Moore as
to the discrete Miranda question, there would be little the
three witnesses could likely add except to repeat the same
story that Moore told them.20 Defense counsel also did not

20
It is true that the court denied defense counsel’s request for the
witnesses right before or during Hernandez’ testimony at the hearing.
(The detective walked into the courtroom a few seconds into Hernandez’
direct examination.) But had Hernandez vehemently disputed Moore’s
testimony on any point material to whether there was an interrogation,
defense counsel would have been on firm ground to renew his requests.
Instead, counsel admitted that both Hernandez and Deputy Moore “have
essentially testified that it was a consensual, non-interrogation style
encounter”—even if counsel then immediately argued that the “jailer”
32 HERNANDEZ V. HOLLAND

ask for a recess to interview the three witnesses to find out
what Deputy Moore might have said to them so that he could
proffer what the witnesses might say and why it would be
useful.21 For that matter, defense counsel did not press
Deputy Moore on cross-examination about the details of
what, precisely, he reported to the witnesses. Instead, counsel
asked Deputy Moore only when and to whom he spoke
“about the statement,” but did not search for inconsistencies
in the content of what Moore told the witnesses.

Thus, we cannot say the court’s handling of the hearing
was so “defective” or unreasonably “unsupported” by
sufficient evidence on the Miranda question that no appeals
court could support it. Nor has Hernandez shown that the
hearing violated any “fundamental” principle of justice or
deprived him of a “meaningful opportunity” to present a
complete defense on that question.22 Therefore, the trial court

relationship in and of itself rendered the conversation “inherently similar
to an interrogation.” That argument stemmed from the obvious fact of
Hernandez’ custody, not any testimony at the hearing.
21
We note that at no point—direct appeal, state habeas, or district court
habeas—has Hernandez proffered any evidence of what the three
witnesses would have testified had they been called. Hence, Hernandez
has shown no prejudice to the extent he claims a violation of his Sixth
Amendment right to call witnesses in his favor. See Valenzuela-Bernal,
458 U.S. at 867 (holding that, while a criminal defendant cannot be
deprived of his right to call witnesses in his favor “arbitrarily,” the
defendant “must at least make some plausible showing of how [the
proposed witness’] testimony would have been both material and
favorable to his defense”).
22
Again, to the extent that the witnesses might have clarified to the jury
anything relevant about the content of what Moore said that Hernandez
 HERNANDEZ V. HOLLAND 33

was not unreasonable in its factfinding, nor did the trial court
(or the California Court of Appeal) unreasonably apply
clearly established Supreme Court precedent. While the trial
court’s decisions could be second-guessed, they were not an
“extreme malfunction[]” for which habeas should be a
“substitute for ordinary error correction through appeal.”
Harrington, 131 S. Ct. at 786 (internal quotation marks
omitted). (Indeed, the California Court of Appeal found no
abuse of discretion on this point.) Nor, finally, has
Hernandez raised a plausible inference of prejudice. As a
result, AEDPA’s deferential standard applies, and bars the
relief that Hernandez seeks.

Conclusion

The California Court of Appeal was not unreasonable in
its application of Miranda and did not base its decision on
unreasonable factual determinations. Despite the Warden’s
failure to brief the issue, AEDPA’s deferential standard of
review still applies. Accordingly, we AFFIRM the district
court’s denial of habeas relief per 28 U.S.C. § 2254(d).

said about the car door, that is beyond the scope of our Certificate of
Appealability.