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Bradford v. Davis

United States Court of Appeals, Ninth Circuit

May 3, 2019

Mark Alan Bradford, Petitioner-Appellant/ Cross-Appellee,
Ron Davis, Warden, California State Prison at San Quentin, Respondent-Appellee/ Cross-Appellant.

          Argued and Submitted February 28, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding D.C. No. 2:97-cv-06221-TJH

          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.

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


         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, 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.


          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.

         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.


         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.

         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 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 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, 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 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 ...

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