                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID PATRICK ALFORD,                            No.   16-16247

              Petitioner-Appellee,               D.C. No. 3:14-cv-02904-JST

 v.
                                                 MEMORANDUM*
JOE A. LIZARRAGA, Warden,

              Respondent-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Jon S. Tigar, District Judge, Presiding

                      Argued and Submitted October 11, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, REINHARDT and O’MALLEY,** Circuit
Judges.

      1. Alford argues that his trial testimony, and his statements made during his

interrogation, should not be part of the harmless-error analysis because he might

not have testified had he not been obligated to explain his erroneously-admitted

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Kathleen M. O’Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
statements. Alford, however, never suggested to the state courts that the

introduction of the statements induced his trial testimony. Accordingly, this issue

was not presented to the state courts and the California Court of Appeal’s

harmless-error analysis was not contrary to Harrison v. United States, 392 U.S.

219 (1968).

      2. The statements made during Alford’s interrogation were inculpatory to

the extent that he placed himself with the victim and acknowledged doing

“something” that could expose him to penological consequences. However, as the

state court determined, his trial testimony provided the most compelling evidence

of second degree murder. He testified in great detail to the events in the car,

including striking the victim in the back of the head with a loaded gun. Our

harmless-error analysis is guided by, among other factors, “the overall strength of

the prosecution’s case.” Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011)

(citation omitted); see also Brecht v. Abrahamson, 507 U.S. 619, 639 (1993)

(finding harmlessness in part because “the State’s evidence of guilt was, if not

overwhelming, certainly weighty”). In light of Alford’s trial testimony, we are

compelled to conclude that the erroneous introduction of his statements made

during his interrogation did not have a “substantial and injurious effect or influence




                                           2
in determining the jury’s verdict.”1 Brecht, 507 U.S. at 637; see also Davis v.

Ayala, 135 S. Ct. 2187, 2198-99 (2015).

      REVERSED.




      1
        In any event, the prosecutor’s primary use of the statements Alford made
during interrogation was during the State’s closing argument and for the purpose of
impeaching Alford’s credibility. See Pollard v. Galaza, 290 F.3d 1030, 1033 (9th
Cir. 2002) (voluntary statements taken in violation of Miranda “may be used for
impeachment should the Defendant testify inconsistently”).
                                          3
                                                                         FILED
Alford v. Lizarraga, No. 16-16247
                                                                          DEC 12 2017
O’MALLEY, Circuit Judge, dissenting:                                  MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      I respectfully dissent from the panel’s disposition of this case. The district

court carefully considered the impact of the state’s use of statements elicited from

Alford in violation of Miranda v. Arizona, 384 U.S. 436 (1966). After a full review

of the record, the district court concluded that the introduction of Alford’s

interrogation statements had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).1

I agree. The fact that statements taken in violation of Miranda generally may be

introduced for impeachment purposes does not alter my conclusion that the

unconstitutional use of Alford’s statements at his trial was not harmless.

      First, it is not clear that the interrogation statements at issue actually would

have been admissible as impeachment evidence. The interrogation statements

appear to have been consistent with Alford’s statements at trial. The prosecutor’s

criticism of Alford’s interrogation statements was that they were less detailed than

      1
         “Because it is more stringent, the Brecht test ‘subsumes’ the
AEDPA/Chapman standard for review of a state court determination of a
constitutional violation.” Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2014)
(quoting Fry v. Pliler, 551 U.S. 112, 120 (2007)). As this court has explained, “[a]
determination that the [trial court’s] error resulted in ‘actual prejudice’ necessarily
means that the state court’s harmlessness determination was not merely incorrect,
but objectively unreasonable.” Id. (quoting Brecht, 507 U.S. at 637) (citing Davis
v. Ayala, 135 S. Ct. 2187, 2198–99 (2015)). “A federal habeas court therefore need
not formally apply both the Brecht test and the AEDPA standard; it is sufficient to
apply Brecht alone.” Id. (citing Fry, 551 U.S. at 120).

                                          1
the account Alford offered at trial, not that he had changed his story. The prosecutor

focused not on what Alford said during his interrogation, but what he did not say

once he had invoked his right to counsel.          Interrogation statements violating

Miranda only are admissible “should the Defendant testify inconsistently.” Pollard

v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). I do not think Alford did so here.

      Second, the majority does not dispute that the jury was never instructed that

the interrogation statements could not be used as substantive evidence of guilt,

which is required whenever such statements are proffered for impeachment

purposes. As the district court found, there is a very real possibility that the jury did

consider his statements as substantive evidence of guilt.           Indeed, they were

repeatedly implored to do just that by the prosecutor. During her closing argument,

the prosecutor argued at length that Alford’s demeanor and statements were

incongruous with how one “would expect somebody to behave if they had just killed

somebody by accident.” As set forth in the district court’s description of the record,

page after page of the prosecutor’s closing repeated this theme. Although the

prosecution introduced other substantive evidence of guilt, the interrogation

apparently loomed large in the jury’s decisionmaking because it asked to watch the

recorded interrogation on the third day of deliberation. I would find that the

introduction of the interrogation statements, in combination with the prosecutor’s

extensive use of those statements as substantive evidence of guilt, had a sufficiently


                                           2
large effect on the jury’s verdict—beyond the possible use of the interrogation as

impeachment evidence—to warrant habeas relief.

      Third, even if Alford did not exhaust an argument under Harrison v. United

States, 392 U.S. 219 (1968), that the erroneous introduction of his interrogation

statements induced his trial testimony, I believe the district court was correct to

consider the fact that Alford’s testimony might have differed if not for the

introduction of the interrogation. Alford argued that reliance on his testimony as

actually proffered was inappropriate. He made this argument in response to the

state’s contention that the introduction of his interrogation statements was harmless

because Alford’s trial testimony constituted sufficient evidence of guilt. Alford was

not raising a freestanding claim for habeas relief under Harrison; he was responding

to the state’s argument that its admitted substantive use of tainted testimony was

harmless. His point was that, even if he might have still testified at trial, the court

should not assume his testimony would have been elicited in the same way.

Exhaustion is simply not an issue for that argument. Thus, even if, as the district

court concluded, it is not clear whether Alford’s testimony was induced in its

entirety by the introduction of the interrogation statements, we must assume that the

introduction of those statements at the very least “affected [Alford’s] strategy” at

trial. Garcia v. Long, 808 F.3d 771, 784 (9th Cir. 2015). The district court

properly considered this effect in considering whether the admission was harmless.


                                          3
      The fact that the interrogation statements do not likely even qualify as

impeachment evidence, combined with the prosecutor’s undue emphasis on those

statements, the trial court’s failure to properly instruct the jury regarding the proper

purpose for which such statements may be considered, and the district court’s factual

finding that Alford’s testimony might well have differed in the absence of the state’s

constitutional violation, convince me that the district court reached the right

conclusion here. We should affirm.




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