dissenting:
With all due respect, I dissent from the majority opinion. In my view, the combination of constitutional errors committed at Bains’s trial “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
In the first place, I conclude that the Miranda violation occurred at or shortly after the beginning of the questioning of Bains at the police station, and that none of his statements made during the interrogation should have been admitted in evidence.1 The question to be answered in determining whether there is custody for purposes of Miranda is: “given th[e] circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The circumstances were that Bains had been home that morning when a search warrant was executed at his house. Police had later come to his workplace to question him, but he did not want to be questioned at work. It is not clear who suggested the police station, but in any event the police drove Bains there. At the station, he was placed in an interview room with two officers (two additional officers, one a lie detector operator, later took part). He was not informed that he was free to leave at any time. Before any substantial questioning occurred, the officers falsely informed Bains that Hidalgo, who had been arrested for the murder, had “pointed a finger” at Bains.2 Bains *980had not been many years in this country, and he had had no prior involvement with the criminal justice system. The transcript of the interrogation reveals considerable language difficulty. I conclude that, from the beginning of the questioning, a reasonable person in Bains’s position would not believe that he was free to terminate the interrogation, leave the closed-door interview room, and depart (without a car). And that reasonable person’s understanding, as it turns out, would have been wholly accurate: Bains was interrogated for six hours, and was denied permission to leave or call his wife.
The state court determined that the interrogation became custodial only after Bains made a rather confused reference to an attorney and questioning continued. But the obligation to honor Bains’s request for an attorney arises from Miranda, and depends upon Bains’s being in custody. His mention of an attorney did not create custody; the circumstances and surroundings did. Indeed, it is difficult to re-read Miranda without concluding that Bains’s interrogation is exactly the kind that Miranda had in mind when it required warnings. See Miranda v. Arizona, 384 U.S. 436, 449-58, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasizing effect of isolation in intimidating surroundings of station house). From the outset, a reasonable person in Bains’s position would have been “aware that questioning will continue until he provides his interrogators the answers they seek.” Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). It was thus Miranda error for the trial court to conclude that Bains was not in custody in the station house interview room during the extensive first part of his interrogation, which extends through 170 pages of transcript.
As the majority opinion holds, and I agree, there were three additional constitutional errors committed at Bains’s trial: (1) admission of hearsay testimony concerning Bains’s state of mind; (2) admission of hearsay testimony concerning threats made by other members of Bains’s family; and (3) argument (and, I would add, some testimony) emphasizing that violence is to be expected from Sikhs.
On the first two points, I have nothing to add to the cogent discussion in the majority opinion. With regard to the third error, I would add that testimony as well as argument went beyond constitutional bounds. A sheriffs department employee who had been raised as a Sikh testified as an expert on the Sikh culture. Bains did not object to testimony about the seriousness with which Sikhs regarded the marriage contract. He did object, however, to testimony of which the following exchange is an example:
Q. By virtue of your own roots within the Sikh community as well as your law enforcement experience in Sutter County, are you familiar with violence, the potential for violence, generally within the Sikh community based upon cultural values?
A. Yes.
Q. Can you tell the ladies and gentlemen of the jury whether these are cultural values within the Sikh community which, if violated or perceived to be violated, can be expected to have the potential for life-threatening violence?
A. Could be a number of things, something that transpired back in India and it’s carried over here to America, or could be a sour or bad marriage between the arranged marriages where the female is divorced and some type of action, I guess if you want to call it, has to be taken by the other party.
Q. I want to go in a little bit more detail, but as I understand it, at this point there are in general such as things, feuds between families which cause potential for violence to the extent that the feuds even follow the families across the ocean to the United States?
A Yes.
Q. And with respect to the traditional Sikh values as they arose in the Punjabi *981[sic] and have come to the United States, are there very strong feelings among the community concerning the topic of divorce?
A. Usually is, yes.
Q. Now, especially I want to direct your attention to a situation in which there’s been arranged marriage and of the two participants in the arranged marriage the wife continues to desire the marriage-wants the marriage to continue.
Under those circumstances if the husband were to decide, for whatever reason that he wanted, to terminate the marriage relationship and obtain a divorce, is that the type of behavior that, in your experience, could lead to violence and potentially deadly violence? A. Yes.
Although the witness later expl< -ned that violence did not always follow, die effect of this testimony is to cause the jury to focus on the proposition that, in his family situation, Bains was likely to have committed violence because he was a Sikh.
Then, in final argument, the prosecutor at several points reinforced this tendency. Among the many references to the different values and tendencies of Sikhs were the following:
... [AJnyone who is familiar with the Sikh culture, especially as it’s practiced by relatively conservative tradition-oriented and traditional Sikhs is going to find out that, unlike the culture here in the United States, if you do certain conduct with respect to a Sikh person’s female family member, look out. You can expect violence.
;!« * ❖ * * *
It’s a very traditional society in which those who conservatively follow its vast values and tenets can predictably be shown to-to acknowledge significance about several things. The wearing of a turban, the maintenance of a beard, and the carrying of a dagger. Was there some symbolic ritualistic meaning of the way Gurmeet Shergill was killed? Was he left dying in a pool of blood as a statement to the rest of the Sikh community by Bains? Is that a death that had significance far beyond your understanding as common lay persons from a cross-section of the American culture? Think about it.
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Everybody seems to agree that this is primitive killing amidst a bunch of sophisticated preparation. That’s going to remain the status of the case forever. Do you need a reasonable explanation? Other than every Sikh who reads about this case is going to understand that the Bains clan avenged their honor, they did what was expected of them.
The State does not contest the holding of the state appellate court that the references to the Sikh tendency toward violence constituted error. It argues only that the error was harmless, and the majority here agrees.
The egregiousness of the emphasis on Sikh tendencies toward violence weighs heavily in the balance, in my view. Moreover, because I conclude that Miranda was violated by admitting Bains’s statements made during the interrogation, I exclude those statements from the prosecution’s side of the harmless-error balancing process.3 In the absence of those statements, in which Bains denied contact with Hidalgo, the fact that telephone calls were made between Bains and Hidalgo loses its incriminating value. The most important remaining evidence against Bains is the $200 check from his wife to Hidalgo, and the telephone call from the victim Gurmeet’s house to Bains’s resi*982dence at a time when Gurmeet was arriving at the airport. The jury, however, rejected the special circumstance of murder committed for financial gain; it apparently concluded that the $200 had nothing to do with the murder. The one-minute telephone call from Gurmeet’s apartment to Bains’s residence, with contents or recipient unknown, an hour before Gurmeet arrived at the airport from India and ten days before his murder, is certainly adverse but not enough to sustain a conclusion that Bains would have been convicted if all of the constitutional errors had not occurred.
The state appellate court, in finding all errors harmless, concluded that there had been no Miranda violation. It also relied heavily on the testimony of Bains’s cellmate that Bains had confessed that he arranged the murder for $30,000. This testimony was even more suspect than most cellmate confessions; the cellmate’s testimony was so thoroughly impeached at trial that the prosecutor partially distanced himself from it in final argument, and the jury appears to have disregarded it in finding no financial gain special circumstance with regard to the murder. The cellmate confession is entitled to no weight in the harmless error balancing.
As the majority opinion points out, the state appellate court failed to apply the requisite Chapman standard of constitutional harmless error. See Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). I need not determine whether that failure affects our standard of review, for I conclude that the eombination of constitutional errors that occurred at Bains’s trial meets even the deferential standard of Brecht v. Abrahamson, 507 U.S. at 637, 113 S.Ct. 1710.4 The errors, considered together, “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (internal quotation marks omitted). The Miranda violation, the inflammatory evidence regarding the violent tendencies of Sikhs, and the hearsay violations of the confrontation clause, in my view, influenced the verdict in this case.
In order for us to overturn the state’s conviction on a legal ground decided by the state, AEDPA requires the state court’s adjudication to have “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.” 28 U.S.C. § 2254(d). That requirement is met in this case. The admission of Bains’s statements made during the station house interrogation was contrary to the Supreme Court’s decision in Miranda. In addition, the state’s failure to apply the Chapman harmless error standard on direct review is contrary to Chapman itself, as well as to Brecht. See Brecht, 507 U.S. at 636, 113 S.Ct. 1710 (.Brecht review on habeas is appropriate because state will have been required to conduct Chapman review); see also Jeffries v. Wood, 114 F.3d 1484, 1500-01 (9th Cir.1997) (en banc) (state failure to apply Chapman is adjudication.contrary to clearly established federal law as deter*983mined by Supreme Court, for purposes of AEDPA).
Thus Bains’s petition meets the standards set by both Brecht and' AEDPA. Accordingly, I would reverse the decision of the district court and would remand for issuance of the writ if, within a reasonable time, the State fails to initiate a new trial for Bains.
. Bains raised his Miranda claim at trial and in his habeas petition to the California Supreme Court, which tersely denied the petition "on the merits.” The State has not contended in the present appeal that Bains failed to exhaust his Miranda claim, or that it has been procedurally defaulted.
. It is true that in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Supreme Court stated that a false statement of incriminating evidence "has nothing to do with whether respondent was in custody for purposes of the Miranda rule.” Id. at 496, 97 S.Ct. 711. This statement, however, was made before the Supreme Court ruled that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Certainly a reasonable person would consider it a factor, in determining freedom to leave, that a witness had identified him or her to the police as the perpetrator of the murder that was under investigation.
. I note that the district court, upon initially ruling that there had been a Miranda violation, determined that the Brecht standard had been met and the writ should issue. The district court changed that determination only when it reconsidered its Miranda ruling and found no violation.
. The Eighth Circuit has ruled that, when the state court erroneously fails to review for harmless error under the Chapman standard, then the federal court on habeas review should judge harmlessness under the Chapman standard, not the more deferential Brecht standard. See, e.g., Harrington v. Iowa, 109 F.3d 1275, 1279 (8th Cir.1997). Other circuits have held that Brecht is the habeas standard even when the state courts have failed to apply Chapman. See Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir. 1996); Hogue v. Johnson, 131 F.3d 466, 499 (5th Cir.1997); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995). The Fifth Circuit has since observed that its rejection of the Chapman standard, while still binding in the Fifth Circuit, appears to be inconsistent with the underlying rationale of Brecht. See Barber v. Johnson, 145 F.3d 234, 236-37 (5th Cir.), cert. denied, — U.S. -, 119 S.Ct. 518, 142 L.Ed.2d 430 (1998); see also Crespin v. New Mexico, 144 F.3d 641, 649 n. 6 (10th Cir.) (argument that Chapman should apply has some merit, but Brewer binds panel and precludes application), cert. denied, - U.S. -, 119 S.Ct. 378, 142 L.Ed.2d 313 (1998).