Mark Bradford v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARK ALAN BRADFORD, Nos. 15-99018
Petitioner-Appellant/ 15-99019
Cross-Appellee,
D.C. No.
v. 2:97-cv-06221-
TJH
RON DAVIS, Warden, California
State Prison at San Quentin, OPINION
Respondent-Appellee/
Cross-Appellant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding

Argued and Submitted February 28, 2019
Pasadena, California

Filed May 3, 2019

Before: MILAN D. SMITH, JR., PAUL J. WATFORD,
and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 BRADFORD V. DAVIS

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of habeas
relief as to one of Mark Alan Bradford’s claims regarding
his conviction, reversed the district court’s procedural-
default holding as to two claims regarding his conviction,
remanded for the district court to consider whether Bradford
established prejudice as to those two claims, and on the State
of California’s cross appeal, reversed the district court’s
grant of a conditional writ of habeas corpus as to Bradford’s
death sentence.

The panel held that California’s timeliness rule for
habeas petitions – pursuant to which the California Supreme
Court denied as untimely Bradford’s claims for prosecutorial
misconduct for suppression of toxicology test results
(Claim 4), prosecutorial misconduct for suppression of notes
from witness interviews conducted by police (Claim 6), and
ineffective assistance of counsel for failure to present a
mental state defense of intoxication (Claim 8) – was
adequate when Bradford filed his state habeas petition on
January 6, 2000. In so holding, the panel rejected Bradford’s
contention that the adequacy of the timeliness rule should be
analyzed as of June 3, 1996, the date upon which his claims
fell outside the 90-day timeliness presumption. The panel
wrote that this conclusion is not altered because Bradford did
not file a state habeas petition until after filing his federal
petition, and that, in order to obtain federal habeas review,

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

Bradford must establish cause and prejudice to overcome his
procedural default.

The panel held that Bradford established cause to excuse
his default due to the confluence of several factors, including
actions by his counsel that constituted abandonment.
Applying Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), the
panel held that the California Supreme Court’s conclusory
denial of Bradford’s claims on the merits does not preclude
the district court from conducting the prejudice inquiry. The
panel held that Bradford cannot establish prejudice for Claim
6 because the statements contained in the undisclosed
interview notes were cumulative of evidence admitted at
trial, such that the panel could not say that there is a
reasonable probability that the trial result would have
differed had the notes been disclosed. The panel remanded
Claims 4 and 8 for the district court to conduct the prejudice
inquiry in the first instance.

On the government’s cross appeal from the district
court’s grant of a conditional writ as to the death sentence,
the panel held that the California Supreme Court’s
conclusions regarding the voluntariness and admissibility of
Bradford’s four post-arrest statements were not contrary to,
nor an unreasonable application of, federal law.
4 BRADFORD V. DAVIS

COUNSEL

Patricia A. Young (argued), John L. Littrell, and Margo A.
Rocconi, Deputy Public Defenders; Hilary Potashner,
Federal Public Defender; Office of the Federal Public
Defender, Los Angeles, California; for Petitioner-Appellant.

Xiomara Costello (argued), David E. Madeo, and A. Scott
Hayward, Deputy Attorneys General; Steven D. Matthews
and James William Bilderback II, Supervising Deputy
Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Xavier Becerra, Attorney General; Office
of the Attorney General, Los Angeles, California; for
Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Mark Alan Bradford was convicted of first-degree
murder, first-degree robbery, rape, and sodomy in
connection with the 1988 killing of Lynea Kokes. After a
jury found that he killed Kokes to prevent her from testifying
against him—a special circumstance permitting capital
punishment—Bradford received a death sentence. Bradford
filed a petition for a writ of habeas corpus in the district
court, which denied relief as to the conviction but
conditionally granted relief as to his death sentence absent a
new special circumstance trial. He appeals the district
court’s limited grant of habeas relief, and the State of
California cross appeals the grant of habeas relief. Bradford
also claims that the district court erred in finding some of his
claims procedurally barred.
 BRADFORD V. DAVIS 5

Because we find that the California Supreme Court did
not unreasonably apply clearly established federal law and
that its holdings were not contrary to federal law, we vacate
the district court’s grant of habeas relief. But we also hold
that Bradford has shown cause to overcome the procedural
default of his claims for ineffective assistance of counsel and
prosecutorial misconduct for the suppression of his
toxicology test results, and remand for the district court to
consider whether Bradford has established prejudice as to
either claim. Finally, we decline to expand the certificate of
appealability to include Bradford’s uncertified claims.

BACKGROUND

I. Factual Background

A. Murder of Lynea Kokes

On the morning of April 18, 1988, Mark Bradford and
his then-roommate Randall Beerman began playing cards
and drinking alcohol in their apartment at Panorama City
Lodge (the Lodge) in California. Bradford consumed a
quart-and-a-half of Black Velvet Whiskey and a six-pack of
beer. Around 3:30 pm, the Lodge’s assistant manager,
Joseph Stevens, spoke to Bradford. Stevens told Bradford to
vacate his apartment because his rent was overdue; he also
accused him of breaking into the Lodge’s office.

That afternoon, Bradford helped Lynea Kokes (Kokes),
a new manager for the Lodge, move into her apartment.
Sometime after 5 p.m., Bradford called an ex-girlfriend, who
said that he could stay with her in Fresno, California.
Bradford told Beerman around 6 p.m. that he had been
accused of breaking into the Lodge’s office and had to leave.
6 BRADFORD V. DAVIS

At some point, Bradford vomited in the apartment
bathroom and cleaned it up with towels. While Bradford
cleaned the towels in the laundry room, Beerman saw a knife
handle on the bathroom floor. That evening, Beerman went
to the laundry room to put the towels in the dryer and saw a
bent knife blade.

Sometime after 8 p.m., Alexander Kokes entered his
apartment and found his wife’s body. Police and paramedics
called to the complex pronounced Kokes dead. Beerman
later spoke with detectives and showed them the knife blade
in the laundry room. He then let police into his apartment,
where they arrested Bradford. The police searched Bradford
and found a wooden knife handle, caked with a dried red
liquid. Detectives also found a suitcase containing Kokes’s
wallet and other items, and a duffel bag containing red-
stained clothing in Bradford’s room. Shortly after his arrest,
Bradford’s blood was drawn for toxicology testing.

Forensic evidence indicated that Kokes died from a
combination of strangulation and stab wounds. She had also
been raped and sodomized. Bradford’s fingerprint was
found in Kokes’s apartment, and the blood on Bradford’s
clothing tested positive for the presence of blood consistent
with Kokes’s.

B. Bradford’s Statements to the Police

Bradford was driven to the police station and made four
statements over the course of the next day-and-a-half. The
first statement, to Detectives Riehl and Arnold, was made at
around 5 a.m. on April 19, 1988. Around 7 a.m., while being
booked, Bradford made another statement to station officers.
The third statement was made to Detective Hooks at
9:30 a.m. Just over twenty-four hours later, Bradford asked
to speak with detectives, and made the fourth statement to
 BRADFORD V. DAVIS 7

Detective Arnold. In each of these statements, Bradford
implicated himself in the murder of Kokes.

II. Procedural Background

A. State Trial

Bradford moved to suppress all four statements. The
trial court ruled that: (1) Bradford’s first statement was
obtained in violation of Miranda v. Arizona, 384 U.S. 436
(1966), but was voluntary; (2) his second statement was
voluntary and not the product of interrogation; (3) his third
statement was involuntary; and (4) his fourth statement was
self-initiated, voluntary, and not in violation of Miranda.
Thus, the trial court concluded that the second and fourth
statements were admissible, but the first and third statements
were not.

Bradford’s second statement was introduced at trial
through the testimony of station officer Synthia Gordon.
The audio tape of the fourth statement played in court, and
jurors received a transcript of the statement. Bradford’s
defense waived opening statement and presented no
witnesses.

The jury found Bradford guilty of first-degree murder,
first-degree robbery, rape, and sodomy. The jury also found
true the special circumstance that Bradford intentionally
killed Kokes to prevent her testimony in a criminal
proceeding. However, the jury found Bradford not guilty of
burglary, and found not true the special circumstances of
rape-murder, sodomy-murder, and burglary-murder.

At the penalty phase, Bradford presented the testimony
of several family friends, evidence that he was drunk on the
day of the murder, and expert testimony that he had a
8 BRADFORD V. DAVIS

condition that makes him unable to control his conduct when
he ingests even a small amount of alcohol. The prosecution,
in rebuttal, presented an expert who disputed the diagnosis
of the condition. At the conclusion of the penalty phase,
Bradford was sentenced to death.

B. Direct Appeal

The California Supreme Court appointed Jonathan
Milberg to represent Bradford on appeal and in state habeas
proceedings. On January 23, 1997, the California Supreme
Court affirmed both Bradford’s conviction and death
sentence. People v. Bradford, 929 P.2d 544 (1997)
(Bradford).

The court agreed with the trial court that all four of
Bradford’s statements were voluntary, but that the first and
third statements were inadmissible. The California Supreme
Court also determined that although the second portion of
the second statement should not have been admitted because
it violated Miranda, any error was harmless because the
entire fourth statement was properly admitted. The Supreme
Court of the United States denied Bradford’s petition for a
writ of certiorari on November 3, 1997. Bradford v.
California, 522 U.S. 953 (1997).

C. Initial State and Federal Habeas Proceedings

Milberg repeatedly requested extensions of time and
additional funds to prepare Bradford’s state habeas petition,
but he never filed the petition.

On September 15, 1997, the district court appointed the
Federal Public Defender (FPD) to represent Bradford in
federal habeas proceedings. Bradford filed his first federal
habeas petition on October 30, 1998. On August 22, 2000,
 BRADFORD V. DAVIS 9

the district court stayed the case to permit Bradford to
withdraw his unexhausted claims and present them in state
court.

Prior to the grant of the stay, the FPD filed Bradford’s
initial state habeas petition on January 6, 2000, along with a
request to replace Milberg as state habeas counsel. Soon
after, Milberg moved to withdraw as counsel; the California
Supreme Court granted the motion and appointed the FPD.
The California Supreme Court summarily denied Bradford’s
initial state habeas petition on August 29, 2001, rejecting all
claims on the merits and some on procedural grounds.
Pertinent to this appeal, the court denied Bradford’s Claims
4 (prosecutorial misconduct for suppression of toxicology
test results), 6 (prosecutorial misconduct for suppression of
witness interview notes), and 8 (ineffective assistance of
counsel for failure to present a mental state defense of
intoxication) as untimely. 1

D. Subsequent Federal Habeas Proceedings

On November 29, 2001, Bradford filed an amended
habeas petition in the district court. Eventually, Bradford
moved for summary adjudication on Claim 1, his Miranda
claim. The court held that the California Supreme Court’s
decision was contrary to and based on an unreasonable
application of clearly established federal law, that all of
Bradford’s statements were involuntary, and that the
admission of the second and fourth statements was not
harmless. The district court granted partial summary

1
Bradford filed a second state habeas petition in September 2003,
which was denied in August 2007. None of the claims in that petition is
at issue here.
10 BRADFORD V. DAVIS

judgment in favor of Bradford, declining to overturn his
conviction but vacating the death sentence.

The district court subsequently denied Bradford’s
remaining claims. The court held that Claims 4, 6, and 8
were procedurally barred as untimely presented in the state
courts and that Claim 12—the cumulative error claim—was
meritless.

The district court entered judgment on December 4,
2015, granting relief only on Claim 1, vacating the death
sentence. The court issued a certificate of appealability
(COA) on Claims 2–11 but denied Bradford’s application to
expand the COA to include Claim 12 and the denial of relief
on the conviction under Claim 1.

Bradford raises on appeal only three of the certified
claims—Claims 4, 6, and 8—and requests that we expand
the COA for Claims 1 and 12. The State cross appeals the
district court’s grant of habeas relief on Claim 1.

JURISDICTION AND STANDARD OF REVIEW

Because Bradford filed his petition for habeas corpus
after the effective date of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA), we have jurisdiction
over the certified claims and the State’s cross appeal
pursuant to 28 U.S.C. §§ 2253 and 2254.

We review the district court’s denial of a habeas claim
on state procedural grounds de novo. Fields v. Calderon,
125 F.3d 757, 759–60 (9th Cir. 1997). We also review de
novo the grant of habeas relief. Hartman v. Summers,
120 F.3d 157, 160 (9th Cir. 1997).
 BRADFORD V. DAVIS 11

A habeas petitioner challenging a state court decision in
federal court must show that the last reasoned state court
decision was either (1) “contrary to, or involved an
unreasonable application of, clearly established Federal
law,” or (2) “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “Clearly established
federal law” “refers to the holdings, as opposed to the dicta”
of Supreme Court decisions as of the time of the state court
decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

A state court unreasonably applies clearly established
law if it “correctly identifies the governing legal rule but
applies that rule unreasonably to the facts.” White v.
Woodall, 572 U.S. 415, 426 (2014). Relief under
§ 2254(d)(1) is available “if, and only if, it is so obvious that
a clearly established rule applies to a given set of facts that
there could be no ‘fairminded disagreement’ on the
question.” Id. at 427 (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)).

Alternatively, habeas relief is available if the last
reasoned state court decision is contrary to clearly
established federal law. A decision is contrary to clearly
established precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Also,
when a state court “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite,” the decision is contrary to
Supreme Court precedent. Id.

ANALYSIS

We consider first whether Bradford must, and can,
overcome procedural default for Claims 4, 6, and 8. We then
12 BRADFORD V. DAVIS

analyze the State’s cross appeal of the grant of habeas relief
as to Claim 1. Finally, we consider whether to expand the
COA to include Bradford’s uncertified claims.

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

The California Supreme Court denied as untimely
Bradford’s claims for prosecutorial misconduct for
suppression of toxicology test results (Claim 4),
prosecutorial misconduct for suppression of witness
interview notes (Claim 6), and ineffective assistance of
counsel for failure to present a mental state defense of
intoxication (Claim 8).

Federal habeas review is unavailable “if the decision of
[the state] court rests on a state law ground that is
independent of the federal question and adequate to support
the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011)
(alteration in original). To qualify as an adequate procedural
ground, a state rule must be “firmly established and regularly
followed.” Id. at 316.

Although a state court’s denial that rests on an adequate
and independent state-law ground generally precludes
federal habeas relief, the Supreme Court has carved out an
exception to that rule. In Coleman v. Thompson, the Court
held that where the petitioner could “demonstrate cause for
the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice,” federal habeas review will not be barred.
501 U.S. 722, 750 (1991).

The district court concluded that habeas review of
Claims 4, 6, and 8 was unavailable because California’s
timeliness rule was an adequate and independent state-law
 BRADFORD V. DAVIS 13

ground, and that Bradford failed to establish cause to
overcome procedural default. 2

A. California’s Timeliness Rule

To preclude federal habeas review, a state-law ground
must be adequate—that is, it must be “firmly established and
regularly followed.” Walker, 562 U.S. at 316. In Walker,
the Supreme Court reversed our court and held that
California’s timeliness rule for habeas petitions, although
discretionary, met the firmly established criteria. Id. at 321–
22. The Court noted that the California Supreme Court
“framed the timeliness requirement for habeas petitioners in
a trilogy of cases.” Id. at 317 (citing In re Robbins, 959 P.2d
311 (Cal. 1998); In re Gallego, 959 P.2d 290 (Cal. 1998);
and In re Clark, 855 P.2d 729 (Cal. 1993)).

In the first of these cases, In re Clark, the California
Supreme Court explained the four-part framework that
constitutes California’s timeliness rule for habeas petitions.
The court acknowledged that its June 1989 publication of
timeliness standards for capital case petitions established a
presumption of timeliness for habeas petitions filed “within
90 days of the final due date for the filing of an appellant’s
reply brief.” 855 P.2d at 751. 3 A petitioner could also show

2
The district court found that Bradford could not establish cause
because he failed to comply with California’s timeliness requirements,
and because the FPD’s delay in filing his state petition was unjustified.
The question of cause, however, is “a question of federal law,” Murray
v. Carrier, 477 U.S. 478, 489 (1986) (emphasis added), and, as a result,
the district court erred in analyzing whether Bradford met the
justification requirements pursuant to California law.
3
California’s timeliness rule has since been amended to increase the
window of presumptive timeliness to 180 days. See In re Reno, 283 P.3d
14 BRADFORD V. DAVIS

that a presumptively untimely petition was filed without
substantial delay, that good cause justified a substantial
delay, or that the petition fits within several enumerated
exceptions. See id. at 751–61.

Bradford contends that the adequacy of the California
timeliness rule should be analyzed as of June 3, 1996, the
date upon which his claims fell outside the 90-day timeliness
presumption, and that pursuant to Walker, the California
timeliness rule was not adequate until 1998. The State
claims that Bradford’s default should be considered as of
January 6, 2000—when Bradford filed his state habeas
petition.

Where, as here, there are no issues concerning whether
the defendant had adequate notice of the timeliness rule, the
correct date is when the state habeas petition is filed. In
Clark, the California Supreme Court considered whether the
petitioner had established substantial delay at the time of
filing, where his first petition was filed almost two years
after the policies establishing the 90-day presumption
window were issued, and his second petition was filed five
months after the first one was filed. 855 P.2d at 750–51.

Our cases follow suit. In Morales v. Calderon, the
petitioner filed his first federal habeas petition on July 20,
1992; his first state habeas petition on December 16, 1992
(about three and a half years after the California Supreme
Court confirmed his convictions); and a supplemental state
petition later. 85 F.3d 1387, 1388 (9th Cir. 1996). The
California Supreme Court denied both of his state habeas
petitions on July 28, 1993. Id. We held that California’s

1181, 1208 (Cal. 2012) (citing Cal. Supreme Ct. Policies, policy 3, std.
1–1.1.).
 BRADFORD V. DAVIS 15

timeliness rule was not adequate at “any time after Morales’s
convictions were affirmed and before he filed his first state
habeas petition.” Id. at 1393 (emphasis added). Similarly,
in Calderon v. U.S. Dist. Court, we found supported the
district court’s conclusion that the adequacy of the state
procedural rule was to be analyzed at the time the petitioner
filed his first state habeas petition in 1987. 103 F.3d 72, 75
(9th Cir. 1996). The court did not consider the petitioner’s
default as of 1989, when the California Supreme Court
denied his petition; in 1994 when he filed a second state
petition; or in 1995, when the second petition was denied.
Id.

Bradford filed his initial state habeas petition on January
6, 2000. By then, the California Supreme Court had decided
Clark, Robbins, and Gallego. 4 Indeed, Bradford concedes
that California’s timeliness rule was adequate as of 1998.

Accordingly, we hold that California’s timeliness rule
was adequate as of January 6, 2000, when Bradford filed his
state habeas petition. Our conclusion is not altered because
Bradford did not file a state habeas petition prior to filing his
federal petition. In Morales, the petitioner also did not file a
state habeas petition until after filing his petition in federal

4
We have recognized several times that pre-Clark the California
timeliness rule was not firmly established and therefore could not serve
as an independent and adequate state ground to support procedural
default. See, e.g., Calderon v. U.S. Dist. Court, 96 F.3d 1126, 1130 (9th
Cir. 1996) (holding that California’s timeliness requirements were not
consistently applied before Clark); Morales, 85 F.3d at 1391 (finding
“no discernible clear rule” for petitions filed outside the 90-day
presumption of timeliness window before Clark). We have not yet
expressed any opinion as to whether Clark sufficiently clarified the
timeliness rule such that it was firmly established from then on. It is
unnecessary to decide the question in this case.
16 BRADFORD V. DAVIS

court, but we still looked to the filing date of his first state
habeas petition. 85 F.3d at 1388. Bradford relies on our
decision in Calderon v. U.S. Dist. Court, 96 F.3d 1126 (9th
Cir. 1996), but it is inapposite. There, the petitioner filed his
federal habeas petition in 1991 and his first state petition on
May 27, 1994. Id. at 1128. Despite the petitioner filing his
state habeas petition in 1994, the parties appeared to agree
that any default “would have occurred before Clark was
decided,” and we therefore held that the timeliness rule did
not bar federal review. Id. at 1130–31. Here, the State has
not conceded that Bradford’s default occurred pre-Clark, nor
does Bradford advance this position.

Since Bradford does not argue that a failure to consider
his claims will result in a fundamental miscarriage of justice,
Bradford must establish cause and prejudice to overcome his
procedural default. See Coleman, 501 U.S. at 750. We
address that issue next.

B. Cause to Overcome Procedural Default

Cause “must be something external to the petitioner.”
Id. at 753. External factors include obstacles such as “a
showing that the factual or legal basis for a claim was not
reasonably available to counsel,” or that “interference by
officials . . . made compliance impracticable.” Murray v.
Carrier, 477 U.S. 478, 488 (1986) (internal citations
omitted).

“Attorney ignorance or inadvertence” is not cause.
Coleman, 501 U.S. at 753. But, “[a]ttorney error that
constitutes ineffective assistance of counsel is cause.” Id.
at 753–54. This is because when an attorney’s error
constitutes a violation of the prisoner’s right to counsel, the
 BRADFORD V. DAVIS 17

error is “imputed to the State,” and is therefore an external
factor. Id. at 754. 5

Murray left open “whether counsel’s decision not to take
an appeal at all” might require a different standard. 477 U.S.
at 492. Coleman answered that question in the negative and
held that the same cause and prejudice standard applied to a
“failure to appeal at all.” 501 U.S. at 750. Later, Maples v.
Thomas clarified that when a default results from an attorney
abandoning his client without notice, the attorney’s “acts or
omissions [] ‘cannot fairly be attributed to [the client].’”
565 U.S. 266, 281 (2012) (second alteration in original)
(quoting Coleman, 501 U.S. at 753). In Maples, the
petitioner’s attorneys ceased their representation long before
Maples’s appeal was due, but because they had not formally
withdrawn, Maples did not receive any notice before his time
to appeal expired. Id. at 287–88. The Court held that Maples
had established cause to excuse his procedural default due to
his attorneys’ abandonment. Id. at 289.

Bradford contends that Milberg’s failure to file his state
habeas petition constitutes cause to excuse his default.
Bradford also points to the California Supreme Court’s
response to his request for an extension to file that there was
no “due date” for his state habeas petition as contributing to
the cause for default. The State argues that even if Bradford
could show cause until 1998—when the FPD filed his

5
By contrast, if a petitioner had no constitutional right to counsel,
he “must bear the burden of a failure to follow state procedural rules.”
Id. Thus, in Coleman, because the defendant had no right to counsel
during his state post-conviction proceedings, the Court held that any
attorney error that led to the default of his claims could not constitute
cause. Id. at 757.
18 BRADFORD V. DAVIS

federal petition—there is no justification for the FPD’s 15-
month delay in filing the state petition.

We find that Bradford has established cause due to the
confluence of several factors. First, despite Milberg’s filing
of multiple requests for extensions of time to file Bradford’s
habeas petition and requesting preparation funds, he never
filed a petition. Nor did Milberg withdraw so that Bradford
could obtain other counsel. Milberg’s actions clearly
constituted abandonment.

Second, the California Supreme Court did not grant
Bradford an extension to file his petition, informing him
instead this petition was not subject to a “due date.” While
that statement is technically true because California does not
employ a strict deadline, a petitioner must make a greater
showing to justify the delay once outside the presumptively
timely window, which an extension could have broadened.
See Clark, 855 P.2d at 752–53.

Third, the district court did not rule for over a year on
Bradford’s motion to stay his case in order to exhaust his
claims in state court. By the time the FPD filed Bradford’s
state petition on January 6, 2000, the district court still had
not decided the merits of his motion or identified which of
his claims were unexhausted.

And fourth, Milberg did not move to withdraw as
Bradford’s state habeas counsel until soon after the FPD
filed his state habeas petition. Only then did the California
Supreme Court grant Milberg’s motion and appoint the FPD
as Bradford’s state habeas counsel.

Based on these unique circumstances that caused the
delay in the filing of the state habeas petition, we find that
 BRADFORD V. DAVIS 19

Bradford has satisfied the cause prong of the cause and
prejudice inquiry.

C. Prejudice to Overcome Procedural Default

To overcome procedural default, a petitioner must also
show “actual prejudice.” Coleman, 501 U.S. at 750. This
requires the petitioner to establish “not merely that the errors
at . . . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.”
Murray, 477 U.S. at 494 (alteration in original).

The district court, having found that Bradford had not
established cause, never reached the question of prejudice.
On appeal, the State argues only that Bradford cannot
demonstrate prejudice because the California Supreme
Court considered each of his claims and denied them on the
merits in Bradford.

Our opinion in Apelt v. Ryan, 878 F.3d 800 (9th Cir.
2017), undermines the State’s argument. There, we
considered the effect on the cause and prejudice analysis of
a state court decision that both held that a claim was
procedurally barred and denied the claim on the merits. Id.
at 825. The state argued that because the state court had
denied a post-conviction relief (PCR) petition on the merits,
the petitioner could not show that the failure to raise these
claims was prejudicial. We rejected that argument and found
that the state court’s “determination [was] not in itself a
complete bar to federal habeas review—particularly where,
as here, the state court’s merits ruling on the PCR is a
conclusory alternate ruling.” Id. at 827.

The California Supreme Court’s decision on the merits
of Bradford’s claims was similarly conclusory, and the
20 BRADFORD V. DAVIS

underlying principle of Apelt applies. As Apelt
demonstrated, a federal court first considers whether the
petitioner meets the cause and prejudice standard to
overcome procedural default, and then undertakes
deferential review of the state court’s merits determination
of the claim. See id. at 828–34 (finding ineffective
petitioner’s trial counsel and sentencing counsel but
concluding that the state court’s decision to the contrary
regarding his trial counsel was not unreasonable). 6 Similarly
here, the district court is not precluded from conducting the
prejudice inquiry because the California Supreme Court
denied Bradford’s claims on the merits.

We find, however, that Bradford cannot establish
prejudice for Claim 6—that the prosecution suppressed
various notes from witness interviews conducted by the
police. Under Brady v. Maryland, the prosecution must
disclose exculpatory evidence to the defense. 373 U.S. 83,
87 (1963). To succeed on his Brady claim, Bradford must
prove that (1) the evidence is favorable to him, (2) the state
suppressed the evidence, and (3) prejudice ensued. See
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The third
component of the Brady claim overlaps with the prejudice
inquiry here, because “unless [the] documents were

6
We emphasize that a state court’s merits denial should not preclude
the prejudice inquiry to overcome procedural default. Although they rely
on similar analyses, the two inquiries are, and must remain, separate. For
example, a federal court could determine that a petitioner meets the
Coleman standard and establishes cause and prejudice to overcome
default. Then, pursuant to federal habeas review, the court could
conclude that the state court’s decision was objectively unreasonable and
grant habeas relief. In such a situation, to hold at the outset that the state
court’s merits denial of the claim barred the prejudice inquiry for
procedural default would improperly shield the claim from federal
review.
 BRADFORD V. DAVIS 21

‘material’ for Brady purposes, their suppression did not give
rise to sufficient prejudice to overcome the procedural
default.” Id. at 282. That is, there must be a “‘reasonable
probability’ that the result of the trial would have been
different if the suppressed documents had been disclosed to
the defense.” Id. at 289.

Bradford focuses on statements given to the police by
Freddie Maldonado, Jack Schwark, and Phil Hall—none of
which was provided to the defense in discovery. In their
interviews, Maldonado stated that Bradford was “real drunk”
as he helped Kokes move into her apartment; Schwark noted
that Bradford’s eyes were “red and glassy” and he smelled
of alcohol around 4:30 p.m. to 5 p.m.; and Hall said that
Bradford had a “weird look” in his eyes. These observations
might have assisted the defense in mounting a mental state
defense to negate the intent element of first-degree murder
and helped to impeach Hall, who testified at trial that
Bradford did not appear to be under the influence of anything
on the day of the offenses. See People v. Saille, 820 P.2d
588, 595 (Cal. 1991) (noting voluntary intoxication and
mental illness evidence are admissible on the issue of
whether the accused “actually formed a required specific
intent, premeditated, deliberated . . . when a specific intent
crime is charged”).

But, Beerman’s testimony that Bradford was drunk, and
evidence of the amount of alcohol that Bradford had
consumed, were introduced at trial. The statements from
these three other individuals in the apartment complex who
saw Bradford looking “drunk” or “weird” were thus
cumulative. We cannot say that there is a “reasonable
probability” the trial result would have differed had the
interview notes been disclosed. Strickler, 527 U.S. at 289.
22 BRADFORD V. DAVIS

While we remand Claims 4 and 8, and not Claim 6, for
the district court to conduct the prejudice inquiry in the first
instance, our decision to remand these two claims should not
be regarded as suggestive of their merits.

II. Voluntariness of Bradford’s Post-Arrest Statements

Over the course of about a day-and-a-half, after being
arrested, Bradford made four statements to the police on
April 19 and 20, 1988. During each, Bradford implicated
himself in the murder of Kokes by describing details of the
crime. 7

On direct appeal, Bradford challenged the admission of
his second and fourth statements. The California Supreme
Court held that although the second part of the second
statement had erroneously been admitted at trial as
substantive evidence, its admission constituted harmless
error because the fourth statement had been properly
admitted. Bradford, 929 P.2d at 564.

The district court, after conducting de novo review, held
that all of Bradford’s statements were involuntary, that the
California Supreme Court’s decision denying relief was
contrary to and based on an unreasonable application of
clearly established federal law, and that the admission of the
entire second and fourth statements was not harmless. The
district court granted habeas relief as to the special

7
The State requests that we take judicial notice of the audio-
recordings of Bradford’s first, third, and fourth statements to the police.
The California courts considered the recorded interviews in determining
the voluntariness of Bradford’s confessions. Bradford, 929 P.2d at 567.
Because the request is unopposed, we GRANT the request and take
judicial notice.
 BRADFORD V. DAVIS 23

circumstance and penalty phase and vacated Bradford’s
death sentence. The State cross appeals from that decision.

Under Miranda, custodial interrogation of a defendant
must be preceded by the advice that he has the rights, among
others, to remain silent and to have an attorney present. If a
defendant requests counsel, “the interrogation must cease
until an attorney is present.” 384 U.S. at 474. If a defendant
invokes his right to counsel, a subsequent waiver must be
voluntary, knowing, and intelligent. Edwards v. Arizona,
451 U.S. 477, 482 (1981). It is insufficient to show “only
that [the defendant] responded to further police-initiated
custodial interrogation” to establish a waiver of counsel. Id.
at 484. Once a defendant requests counsel, he should not be
subject to further interrogation “until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the
police.” Id. at 484–85. Thus, Edwards established a
“prophylactic rule designed to prevent police from
badgering a defendant into waiving his previously asserted
Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350
(1990).

Statements obtained in violation of Miranda are
nonetheless admissible for impeachment if their
“trustworthiness . . . satisfies legal standards.” Mincey v.
Arizona, 437 U.S. 385, 397–98 (1978) (alteration in
original). But, “any” use of a defendant’s involuntary
statement is a denial of due process. Id. at 398. A voluntary
statement must be “the product of a rational intellect and a
free will.” Id. This voluntariness inquiry considers “all the
circumstances of the interrogation.” Id. at 401. Relevant
circumstances may include: a suspect’s age, education,
intelligence, physical health, and prior experience with the
criminal system; the length, location, and conditions of
24 BRADFORD V. DAVIS

detention; the length and nature of questioning; and the use
by law enforcement of any threats, punishments, or
inducements. See, e.g., Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973). The state bears the burden of proving by a
preponderance of the evidence that the defendant’s Miranda
waiver and confession were voluntary. Colorado v.
Connelly, 479 U.S. 157, 168 (1986).

A prior coerced confession can “taint” a subsequent one.
See Oregon v. Elstad, 470 U.S. 298, 310 (1985). In
conducting a taint analysis, the court considers “the time that
passes between confessions, the change in place of
interrogations, and the change in identity of the
interrogators.” Id.

An Edwards violation, however, does not on its own
render subsequent confessions involuntary. See Elstad,
470 U.S. 308–10. Contrary to Bradford’s argument, the
Supreme Court has not clearly established that a
presumption of involuntariness attaches to statements taken
in violation of Edwards, such that subsequent statements are
tainted. The Court has held that statements taken in violation
of Edwards may still be used for impeachment, Oregon v.
Hass, 420 U.S. 714, 722–23; see also Harvey, 494 U.S. at
350–51, which means that such statements are not presumed
to be involuntary by virtue of the Edwards violation alone.
See Hass, 420 U.S. at 722–23; Mincey, 437 U.S. at 398.

Although the California Supreme Court held that
Bradford’s first and third statements were inadmissible,
because the district court’s analysis of these statements
influenced its holding as to the second and fourth statements,
we review all four. The California Supreme Court provided
a detailed account of the four statements in Bradford, and we
recite here only those facts necessary to provide context for
our analysis. We hold that the California Supreme Court’s
 BRADFORD V. DAVIS 25

conclusions were not contrary to, nor were they an
unreasonable application of, federal law.

A. Statement 1: Statements to Detective Riehl on
April 19, 1988

In the early morning of April 19, 1988, Detectives Riehl,
Arnold, and Coblentz interviewed Bradford on tape in the
Van Nuys police station. Bradford, 929 P.2d at 555. Soon
after obtaining Bradford’s background information,
Detective Riehl informed Bradford of his Miranda rights and
asked if he wanted to speak about “what happened last
night.” Bradford declined and requested a lawyer. Detective
Riehl then told Bradford they could go “off the record.”
Bradford soon agreed to discuss Kokes’s murder and
described his actions.

The California Supreme Court held that although the
police violated Miranda in obtaining Bradford’s first
statement, it was voluntary. Id. at 566. The court noted that
Bradford had been in custody “only . . . six hours” when he
made the statement. Id. Moreover, the court observed that
once the detectives told him they were “off the record,” he
demonstrated “no hesitation” in speaking with them, and his
voice exhibited no “stress” or “excitement.” Id. at 566–67.
The district court held that this conclusion was contrary to
and an unreasonable application of federal law because the
detectives continued to interrogate Bradford after he invoked
his right to counsel and made misleading statements
regarding potential defenses.

Under our required deferential review, we find that the
California Supreme Court’s totality of the circumstances
analysis was not an unreasonable application of federal law.
We find support for the court’s conclusions regarding
Bradford’s voice upon our review of the interview recording,
26 BRADFORD V. DAVIS

which demonstrates that Bradford’s tone remained steady
and flat. The district court found damning the fact that
Detective Riehl improperly suggested that Bradford would
be “stuck” if he waited to speak to an attorney and spoke
about potential mitigation defenses. But the California
Supreme Court noted these facts, and the record here
diverges significantly from others in which we have
determined that police engaged in coercive tactics. See, e.g.,
Cooper v. Dupnik, 963 F.2d 1220, 1243, 1248 (9th Cir.
1992) (describing involuntary statement where police
ignored repeated requests for counsel and badgered suspect
for four hours with “harsh and unrelenting” questioning until
he was “sobbing and pleading his innocence”), overruled on
other grounds by Chavez v. Martinez, 538 U.S. 760 (2003).
Despite Bradford’s unambiguous requests for a lawyer and
the interrogation extending beyond one hour, the California
Supreme Court’s holding that his statement was voluntary,
despite the Edwards violation, was not an unreasonable
application of the federal voluntariness analysis.

In addition, the California Supreme Court’s conclusion
was not contrary to clearly established federal law. The
California Supreme Court identified the relevant precedent
of Miranda, Edwards, and their progeny. The court also
correctly noted that an Edwards violation alone, without
further coercion or other circumstances, does not inherently
render the statement involuntary. Bradford, 929 P.2d at 566.
Therefore, the district court erred holding that Bradford’s
first statement was involuntary.

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

The second statement consists of two exchanges
occurring on April 19, 1988 at approximately 7 a.m., while
Van Nuys station officers booked Bradford. When Officer
Denby fingerprinted Bradford, an unidentified detective
 BRADFORD V. DAVIS 27

applying for a license told Bradford he looked “like a traffic
ticket” and asked, “Is it just a warrant?” Bradford
responded, “Murder.” The detective then left, and for about
two minutes neither Officer Gordon nor Officer Denby
spoke to Bradford. Then, when Officer Denby finished the
fingerprinting, Bradford—unprompted—told the officers
that he had helped Kokes move into her apartment, choked
her, left the apartment to clean up, and returned to kill her.
Officer Gordon then asked Bradford if he felt sorry, and the
officers proceeded to ask him several questions about the
crime. Neither officer informed Bradford of his Miranda
rights.

The reviewing courts divided the booking statement into
two parts when analyzing its admissibility and voluntariness,
and so do we. The first part consists of the remark from the
unidentified detective until the end of the officers’ silence.
The second part is the exchange between the officers and
Bradford during which the officers questioned him.

i. First part of the booking statement

Miranda and Edwards apply only to custodial
interrogation. See Miranda, 384 U.S. at 478–79; Edwards,
451 U.S. at 486 (“Absent such [custodial] interrogation,
there would have been no infringement of the right that
Edwards invoked.”); see also Arizona v. Roberson, 486 U.S.
675, 681 (1988) (observing that the “prophylactic
protections” of Miranda “are implemented by the
application of the Edwards corollary”). Custodial
interrogation is “questioning initiated by law enforcement
officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any
significant way.” 384 U.S. at 444. Yet not all statements
given by a person in custody are entitled to Miranda
protection. Rather, interrogation “must reflect a measure of
28 BRADFORD V. DAVIS

compulsion above and beyond that inherent in custody
itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). As
refined by Innis, police officers’ express questioning or its
functional equivalent—when they “should have known
[their words or actions] were reasonably likely to elicit an
incriminating response,” Id. at 302—constitute
interrogation.

In Innis, the defendant requested counsel after being
advised of his Miranda rights. Id. at 294. As he sat in a
patrol car en route to the station, the officers conversed about
a missing shotgun and their concern that nearby handicapped
children would find the gun and hurt themselves. Id. at 294–
95. The defendant “interrupted the conversation” and told
the officers to go back so that he could show them the gun’s
location. Id. at 295. The Court held that this exchange was
not an interrogation within the meaning of Miranda, because
it could not determine that the officers should have known
their “off hand remarks” were reasonably likely to elicit an
incriminating response. Id. at 303.

The California Supreme Court found that the first part of
Bradford’s second statement was admissible because the
detective’s statement was not an interrogation and so
Bradford’s response of “Murder” was not protected, and that
Bradford had voluntarily initiated a discussion about the
murder before the officers questioned him. Bradford,
929 P.2d at 562. The district court found involuntary this
portion of Bradford’s booking statement because it was the
direct result of the prior coercion and a “mere[] 45 minutes
after Bradford’s earlier coerced statement to Riehl.”

The California Supreme Court applied Innis and
determined that because neither the detective’s “casual
statement” nor his question was reasonably likely to elicit an
incriminating response, there had been no interrogation. Id.
 BRADFORD V. DAVIS 29

That conclusion is not contrary to or an unreasonable
application of federal law. The detective directly questioned
Bradford, but there was no “measure of compulsion above
and beyond that inherent in custody itself” such that the
question transformed into an interrogation and Bradford’s
answer into “the product of interrogation.” Innis, 446 U.S.
at 299–300. Similarly, Bradford’s discussion of the murder
after the detective left was not the product of custodial
interrogation. Bradford’s volunteered statements were
unprompted by the officers. See Edwards, 451 U.S. at 485–
86 (noting that the police could have used incriminating
statements made by Edwards prior to his access to counsel if
they were “voluntary, volunteered statements”).

ii. Second part of the booking statement

The officers elicited the second part of the booking
statement during custodial interrogation, and the California
Supreme Court concluded that under the totality of the
circumstances, while Bradford had not knowingly and
intelligently waived his right to counsel, his statements were
voluntary. Bradford, 929 P.2d at 562–64. The California
Supreme Court held that any error in admission of this
statement was harmless “beyond a reasonable doubt,”
finding it duplicative of Bradford’s fourth statement and the
evidence of his guilt “overwhelming.” Bradford, 929 P.2d
at 564. Conversely, the district court held that the admission
of this portion of the booking statement did not constitute
harmless error because neither the fourth nor second
statements were voluntary.

Because we agree with the California Supreme Court
that Bradford’s first statement and the first part of the
booking statement were voluntary, there was no coercive
“taint” to stretch to the second part of the booking statement
to render it involuntary. See Elstad, 427 U.S. at 310.
30 BRADFORD V. DAVIS

Further, Bradford initiated this conversation with the
officers after saying “Murder,” and there is no evidence of
coercion or compulsion in that short exchange. See Cooper,
963 F.2d at 1248 (describing “hours of mistreatment and
what can fairly be described as sophisticated psychological
torture”). The California Supreme Court’s conclusion that
this part of the second statement was voluntary was not
unreasonable or contrary to federal law.

This part of the booking statement, though, was
introduced as substantive evidence at trial, despite the
officers’ failure to advise Bradford of his Miranda rights and
the absence of a waiver by Bradford of these rights. On
direct appeal, a constitutional trial error can be held excused
only if “it was harmless beyond a reasonable doubt.” Brecht
v. Abrahamson, 507 U.S. 619, 630 (1993). On habeas
review, by contrast, we must apply the “less onerous
standard” of whether the constitutional error “had substantial
and injurious effect or influence in determining the jury’s
verdict.” Id. at 637 (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). “[T]he Brecht standard
‘subsumes’ the [§ 2254(d) requirements] when a federal
habeas petitioner contests a state court’s determination that
a constitutional error was harmless.” Davis v. Ayala, 135 S.
Ct. 2187, 2198 (2015) (quoting Fry v. Pliler, 551 U.S. 112,
120 (2007)).

Given the amount of detail Bradford offered in the fourth
statement, the second part of the booking statement was
plainly cumulative. As discussed below, we find that the
California Supreme Court did not unreasonably apply
federal law in determining that the fourth statement was
admissible. Thus, the admission of this portion of the
booking statement did not have a “substantial and injurious
effect” on the jury. Cooper v. Taylor, 103 F.3d 366, 370–71
 BRADFORD V. DAVIS 31

(4th Cir. 1996) (en banc) (finding harmless the improper
admission of defendant’s third confession given that the
same and additional information was provided in two earlier,
admissible confessions).

C. Statement 3: Statements to Detective Hooks on
April 19, 1988

Bradford’s third statement occurred on April 19, 1988
beginning around 9:30 a.m. Bradford, 929 P.2d at 557.
Detective Hooks interviewed Bradford, and began by noting
that “it’s my understanding that you chose not to waive your
rights at this time, is that correct?” After a clarification,
Bradford answered that he wanted an attorney “to help me
out a little bit.” Despite this affirmation of Bradford’s
request for counsel, Detective Hooks proceeded to
interrogate him “off the record.” Bradford again described
Kokes’s murder and the aftermath.

The California Supreme Court, although correctly noting
that Detective Hooks’s conduct was “unethical and . . .
strongly disapproved,” found the third statement voluntary
because Bradford had been in custody approximately eleven
hours and had demonstrated no hesitation in speaking with
Detective Hooks. Bradford, 929 P.2d at 566–67. The
district court determined that Bradford’s third statement was
involuntary.

While the California Supreme Court’s observation that
Detective Hooks’s conduct was “unethical” seemingly flies
in the face of its conclusion that his tactics were not
impermissibly coercive, the court’s totality of the
circumstances conclusion is entitled to deference. Contrary
to the district court’s finding, this statement was not tainted
by a prior involuntary statement. And, as with the other
recorded interviews, Bradford betrayed no emotion in the
32 BRADFORD V. DAVIS

interview to signal his distress or discomfort. Cf. Henry v.
Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999) (describing
incoherent suspect as “shaken, confused, and frightened,
crying in parts and frequently asking for forgiveness” in
interrogation after officers made misleading comments that
nothing he said could be used against him). It was not
objectively unreasonable for the California Supreme Court
to determine that Bradford’s will was not overborne during
the interrogation. Cf. Mincey, 437 U.S. at 401–02 (“Mincey
was weakened by pain and shock, isolated from family,
friends, and legal counsel, and barely conscious, and his will
was simply overborne.”).

D. Statement 4: Statements to Detective Arnold on
April 20, 1988

Bradford’s fourth challenged statement occurred on the
morning of April 20, 1988. Bradford called Detective Hooks
and said that he wanted to put a statement on the record.
Bradford, 929 P.2d at 559. At approximately 10 a.m.,
Bradford met with Detective Arnold for the interrogation.
Id.

At the beginning, Detective Arnold asked why Bradford
wanted to speak to them, and Bradford responded, “I had
some questions and I’ll probably talk, I don’t know.” After
some back and forth, Detective Arnold said that if Bradford
wanted to give an “on the record statement,” he would
“readvise [him] of [his] constitutional rights.” Detective
Arnold then advised Bradford of his right to an attorney.
Next, Detective Arnold asked if Bradford understood that he
had the right to counsel, and Bradford affirmed that he did.
Subsequently, Detective Arnold queried whether Bradford
wanted to give up his right to an attorney, and Bradford
affirmed. Detective Arnold then accurately stated
Bradford’s Miranda rights, and asked if he wanted to “give
 BRADFORD V. DAVIS 33

up your right to remain silent.” Bradford again stated,
“Yes.” Detective Arnold asked, “Yes?” thrice more, and
Bradford affirmed twice. Finally, Detective Arnold
repeated, “Ok – do you wish to give up your right to have an
attorney present during questioning.” Bradford responded,
“Yes.”

During the interview, Bradford described helping Kokes
move in, grabbing her throat and raping her, and hitting her
as she gasped for air. Bradford stated that he returned to his
room to shower because he “had blood all over me.” In his
room, he started thinking about “[i]f she was gonn [sic] live,
you know, and ratting me off.” Armed with a knife,
Bradford returned to Kokes’s apartment where he thought
she was still alive because she was “gasping for air.” He
then “rolled her over and slit her throat” twice. He also
stabbed her in the chest.

The California Supreme Court held that Bradford’s
statement to Detective Arnold was properly admitted
because it was voluntary and Bradford validly waived his
Miranda rights. Bradford, 929 P.2d at 569. The district
court found the voluntariness ruling contrary to and an
unreasonable application of federal law due to the lasting
taint of the three prior illegally-elicited statements.

The Supreme Court has been clear that a defendant who
has asserted his right to counsel may still subsequently waive
his Miranda rights. See Minnick v. Mississippi, 498 U.S.
146, 156 (1990) (“Edwards does not foreclose finding a
waiver of Fifth Amendment protections after counsel has
been requested, provided the accused has initiated the
conversation or discussions with the authorities.”); Edwards,
451 U.S. at 485 (noting an accused cannot be further
interrogated unless “the accused himself initiates further
communication . . . with the police”). Here, Bradford
34 BRADFORD V. DAVIS

initiated the interrogation by calling Detective Hooks and
requesting a meeting. This self-initiated interrogation is
clearly permissible under Edwards. The California Supreme
Court properly identified the next inquiry as whether
Bradford’s waiver of his right to counsel was knowing and
intelligent and found that it was. Bradford, 929 P.2d at 568–
69.

Because it reasonably concluded that Bradford’s prior
three statements were voluntary, the California Supreme
Court need not have considered whether any taint passed to
this fourth statement. Although the three separate
Miranda/Edwards violations may weigh against a finding of
voluntariness, no Supreme Court precedent directed the
California Supreme Court to find a subsequent involuntary
statement after three voluntary ones, albeit ones given in
violation of Miranda/Edwards. The California Supreme
Court also considered whether the previous interrogations
had “amounted to psychological coercion” to break down
Bradford’s resistance, and reasonably found that “no
coercive threats or promises” were made. Id. at 569. 8

Accordingly, the California Supreme Court’s holding
that Bradford’s fourth statement was voluntary was not
objectively unreasonable. Bradford initiated the fourth
interrogation more than twenty-four hours after the third

8
Bradford relies heavily on our pre-AEDPA case Collazo v. Estelle,
in which we held on de novo review that a police officer’s
psychologically coercive tactics rendered a defendant’s later Mirandized
confession involuntary where the officer threatened that it could be
worse for the defendant if he spoke to a lawyer, and continued
interrogation after the defendant requested counsel. 940 F.2d 411, 419–
20 (9th Cir. 1991) (en banc). While some similarities exist between
Bradford’s case and Collazo, our cases cannot serve as clearly
established law for the purposes of habeas review post-AEDPA.
 BRADFORD V. DAVIS 35

one, and Detective Arnold’s numerous clarifications of
Bradford’s Miranda rights and Bradford’s several
affirmations of his waiver rendered the waiver knowing and
intelligent. Starkly absent from the record are coercive
tactics that could lead us to conclude that Bradford’s fourth
statement was involuntary or his waiver unknowing or
unintelligent.

E. Conclusion

None of the California Supreme Court’s conclusions
regarding the voluntariness and admissibility of Bradford’s
four post-arrest statements deserves to be disturbed on
federal habeas review. Accordingly, we reverse the district
court’s holding for Claim 1 and its grant of a conditional writ
based on its finding that the California Supreme Court’s
decision was contrary to or an unreasonable application of
clearly established federal law.

III. Expansion of the Certificate of Appealability

A “COA may not issue unless ‘the applicant has made a
substantial showing of the denial of a constitutional right’
. . . a demonstration that . . . includes showing that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000) (internal citations
omitted).

We decline to issue a COA with respect to Bradford’s
claims that the district court erred in fashioning a limited
habeas remedy or not granting him a new trial, in light of our
conclusion above that the district court erred in granting
habeas relief on Bradford’s Claim 1. Because we remand
36 BRADFORD V. DAVIS

Claims 4 and 8 to the district court to address the issue of
prejudice, we decline to expand the COA at this time to
address the issue of cumulative prejudice. And, because we
conclude that Bradford was not prejudiced with respect to
the subject matter of Claim 6, we need not expand the COA
to consider cumulative prejudice arising from that claim.

CONCLUSION

Due to the circumstances that delayed the filing of his
state habeas petition, Bradford has established cause to
overcome procedural default. We reverse the district court’s
procedural default holding as to Claims 4 and 8 and remand
for the district court to conduct the prejudice prong analysis.
We find, however, that Bradford cannot establish prejudice
as to Claim 6 and affirm the denial of habeas relief on that
claim. As to the State’s cross appeal, we reverse the
conditional writ of habeas corpus as to Bradford’s death
sentence. Finally, we decline to expand the COA.

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.