and Submitted February 28, 2019 Pasadena, California
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.
Corpus / Death Penalty
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.
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.
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.
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.
SMITH, Circuit Judge:
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
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
Murder of Lynea Kokes
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.
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.
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.
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
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
Bradford's Statements to the Police
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.
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.
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.
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.
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.
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).
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).
Initial State and Federal Habeas Proceedings
repeatedly requested extensions of time and additional funds
to prepare Bradford's state habeas petition, but he never
filed the petition.
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.
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.
Subsequent Federal Habeas Proceedings
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
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.
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.
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 ...