               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


WALTER JOSEPH COOK III,                 No. 17-17257
             Petitioner-Appellant,
                                           D.C. No.
                v.                      3:15-cv-06343-
                                            WHA
SCOTT KERNAN,
            Respondent-Appellee.          OPINION

     Appeal from the United States District Court
       for the Northern District of California
      William Alsup, District Judge, Presiding

        Argued and Submitted March 27, 2019
             San Francisco, California

               Filed January 21, 2020

   Before: Consuelo M. Callahan, N. Randy Smith,
        and Mary H. Murguia, Circuit Judges.

             Opinion by Judge Callahan;
           Concurrence by Judge Callahan;
             Dissent by Judge Murguia
2                       COOK V. KERNAN

                          SUMMARY *


                         Habeas Corpus

    The panel affirmed the district court’s denial of Walter
Joseph Cook, III,’s 28 U.S.C. § 2254 habeas corpus petition
challenging his California state conviction for three counts
of first-degree murder, in an appeal in which Cook claimed,
inter alia, that the state’s reliance on his confession
prejudicially violated his constitutional rights.

    Cook asserted that his statements to police were
unlawfully obtained in two ways: that he was unable to
understand his Miranda rights from the outset of his
interrogation and thus did not knowingly and intelligently
waive them, and that his confessions were coerced based on
the totality of the circumstances as established by the
existing record.

    Applying AEDPA deference, the panel held that:

    •   based on the facts that Cook was repeatedly warned
        of his Miranda rights, expressly acknowledged the
        warnings, and offered coherent and knowing answers
        to the officers’ questions, the California Supreme
        Court had a reasonable basis to reject Cook’s
        challenge to the validity of his Miranda waiver.

    •   the California Supreme Court had a reasonable basis
        to conclude that Cook’s confession was voluntary

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

       because Cook fails to show how this conclusion
       under the totality of the circumstances is
       “inconsistent with the holding in a prior decision of
       the [United States] Supreme Court.”

    The panel held that Cook is not entitled under AEDPA
to an evidentiary hearing into his allegation that an officer
threatened him at gunpoint during his interview, and that the
district court did not abuse its discretion in denying his
request for one, because his failure to develop the factual
basis for the claim in state court proceedings was due to his
own lack of diligence.

    The panel addressed remaining claims in a concurrently
filed memorandum disposition.

    In a concurring opinion, Judge Callahan wrote that if the
panel had needed to reach the question of whether Cook was
prejudiced by the admission of his statements, she would
agree with the district court that the California Supreme
Court could have reasonably denied Cook’s claim on the
ground that any error was harmless.

    Dissenting, Judge Murguia disagreed with the majority’s
conclusion that the California Supreme Court could have
reasonably denied habeas relief on the basis that Cook
(1) knowingly and intelligently waived his Miranda rights;
and (2) suffered no prejudice from the improper admission
of his unlawfully obtained confession and other
incriminating statements.
4                     COOK V. KERNAN

                         COUNSEL

Cormac Early (argued), Jones Day, Washington, D.C.; Craig
Stewart and Kelsey Israel-Trummel, Jones Day, San
Francisco, California; for Petitioner-Appellant.

Sarah J. Farhat (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
San Francisco, California; for Respondent-Appellee.


                          OPINION

CALLAHAN, Circuit Judge:

    In 1994, a California jury convicted petitioner, Walter
Joseph Cook, III, of three counts of first-degree murder,
along with a special circumstance of multiple murders under
California law, and sentenced him to death. Following his
state habeas proceeding over a decade later, Cook’s sentence
was reduced to life without the possibility of parole on the
ground that he was intellectually disabled within the
meaning of Atkins v. Virginia, 536 U.S. 304 (2002). Cook
subsequently sought federal habeas relief from his
conviction on multiple grounds. The district court denied his
habeas petition but granted a certificate of appealability as to
four issues, only one of which we address in this opinion:
whether the state’s reliance on Cook’s taped confession
                        COOK V. KERNAN                            5

resulted in a prejudicial violation of his constitutional
rights. 1

    Cook’s claim is subject to review under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d). Applying the AEDPA
standard of review, we deny relief because the state habeas
court could have reasonably concluded that Cook’s
confession was not obtained in violation of his constitutional
rights.

                                 I.

                                A.

   Cook’s convictions emerge from three murders that
occurred over the span of four months in 1992 in East Palo
Alto, California, where Cook was a local dealer of crack
cocaine. 2

    The murder of Earnest Sadler occurred in the early
morning of February 9, 1992. Around 4:00 a.m., police
found Sadler’s body lying on the pavement in a residential
neighborhood in East Palo Alto. Sadler’s head was severely
battered, and three bloodstained and broken pieces of
wooden board were found nearby. Sadler’s distinctive shoe
prints were also visible on the damp soil in the front yard of
a nearby house. When officers initially interviewed the


    1
    We address Cook’s remaining claims in a concurrently filed
memorandum disposition.
    2
      The facts and evidence presented at trial in support of Cook’s
convictions are detailed at length in the California Supreme Court’s
opinion on direct review, People v. Cook, 139 P.3d 492 (Cal. 2006).
6                     COOK V. KERNAN

eleven occupants of the residence, none admitted to having
seen Sadler killed.

     It was only months later that several occupants of the
house and other witnesses admitted that they knew Cook had
beaten Sadler to death. Shawnte Early (who had been
Cook’s girlfriend at one point) told police that she saw Cook
beating Sadler with a stick while Sadler was on the ground,
and that she tried to intervene by coaxing Cook into her car
and driving him around the corner, only to have Cook jump
out of her car and resume his brutal attack on Sadler. At trial,
Early repudiated her taped interview, which was played for
the jury. Earnest Woodward, a resident of 2250 Menalto,
testified that he woke up that night to see Cook engaged in a
fistfight with Sadler, and Woodward told the combatants to
move down the street. Velisha Sorooshian testified that she
was sitting with Leonard Holt in her car, smoking a pipe of
crack cocaine, near 2250 Menalto that night when Cook
pulled alongside her and laughingly asked her to see if the
man lying in the street was all right. Shannon Senegal
(Cook’s cousin) testified that, the day after Sadler’s death,
Cook told him he had “beat someone down last night” and
identified his victim as Sadler. Woodward and Senegal were
either in custody or serving prison sentences at the time of
trial, and Sorooshian also had a criminal record.

    The murder of Michael Bettencourt occurred sometime
between midnight and 1:00 a.m. on February 14, 1992. A
group of drug dealers and friends was gathered on a
residential street in East Palo Alto, which was known as a
site for illegal drug sales. Bettencourt, an outsider
apparently wanting to buy drugs, arrived in the middle of the
street in his gold Thunderbird car and was immediately
surrounded by potential sellers, including Cook. Steven
Sims (another seller) stuck his arm through the open driver-
                     COOK V. KERNAN                        7

side window, but was jostled, causing him to drop his rock
of cocaine inside Bettencourt’s car. When Sims opened the
driver’s door to look for the fallen rock, he heard Cook—
who was standing behind him, holding a nine-millimeter
automatic pistol—tell Bettencourt to return the rock or pay
for it. Sims then heard Cook yell, “Get back, get back,” and
when Sims stepped away, he saw Cook shoot Bettencourt
once in the leg, pause, then unload the “clip in the nine,”
shooting Bettencourt repeatedly.

    Once he stopped shooting, Cook jumped into Nathan
Gardner’s car and rode for a few blocks before he got out.
During the short ride, Gardner asked Cook why he shot
Bettencourt, and Cook said it was because Bettencourt had
tried to “gaffle”—meaning to steal from—him. The next
day or so, when Sims encountered Cook again and asked
about the shooting, Cook replied that Bettencourt “should
have give[n] me my money or my rock back.” Bettencourt
was found by police, dead in his car, with the driver’s door
open. The responding officer was unable to obtain
information from anyone in the neighborhood about the
shooting. Numerous shell casings were found in the street
next to the car door, and a later forensic examination
determined that eleven of the shell casings had come from a
single gun.

    The murder of Ronald Morris occurred on the afternoon
of May 21, 1992. Cook, Senegal, and Lavert Branner were
hurriedly leaving the parking lot of University Liquors in a
Nova car (driven by Senegal) when they passed Sharoon
Reed and three of her friends, who were also leaving the
parking lot in their car. One of the men in the Nova told the
women to “hurry up and move,” and as the women slowed
their car to let the Nova pass, Cook displayed a gun to them.
The women followed the Nova at a distance as they headed
8                     COOK V. KERNAN

to a birthday party on East O’Keefe Street in honor of their
friend, Morris, also known as “Fat Man.”

    When the cars arrived on East O’Keefe, Morris had just
parked his car and hailed down the Nova. Senegal made a
U-turn and pulled the Nova next to Morris. As Senegal
began talking to Morris, Cook (who was in the front
passenger seat) suddenly leaned across Senegal and fired
multiple shots at Morris, announcing, “I told you I will get
your punk ass back.” According to Senegal, Cook harbored
a grudge against Morris based on an incident about a week
earlier, when an armed Morris had mocked Cook for being
unarmed. Reed testified that, from her viewpoint in the
women’s car, she overheard Morris say, “Damn, you all
strapped,” as he looked into the Nova, and then saw him
suddenly turn away just before multiple shots were fired.

     According to a pathologist at trial, Morris had five bullet
wounds in his heart and lungs, any one of which was
“potentially fatal.”     Various nine-millimeter cartridge
casings were recovered from the pavement where Morris
fell, and were later compared to the nine-millimeter casings
recovered from the Bettencourt murder. A San Mateo
County Sheriff's criminalist testified that he could not
determine with certainty whether both sets of casings had
come from the same weapon, possibly because those from
the earlier killing were aluminum while those from the later
killing were brass. A day after the Morris murder, Cook
threw his gun off the Dumbarton bridge and subsequently
left the area.

                              B.

   On June 26, 1992, Cook was arrested at his mother’s
home in Lawton, Oklahoma, on a California warrant. He
was transported to the local jail, where he was interviewed
                         COOK V. KERNAN                                9

by East Palo Alto Police Sergeant Gregory Eatmon and
Inspector Bruce Sabin of the San Mateo District Attorney’s
Office. The interview lasted approximately seven hours,
from around 7:00 p.m. that night to around 2:00 a.m. the next
morning.

    At the beginning of the interview, Inspector Sabin read
Cook his Miranda rights and then asked, “Do you
understand that Walter?” Cook responded, “Yeah.” Sabin
then asked, “Okay. Do you have any questions about that?
That’s a yes or no,” to which Cook responded, “No.” After
this confirmation from Cook, the investigators proceeded to
question Cook about his background, his family, and,
eventually, his whereabouts on the day of the Morris murder.
During these first few hours of his videotaped interview,
Cook generally appeared calm, even conversational at times,
as he answered the investigators’ questions; at other times,
he also seemed slightly confused, and his responses seemed
unfocused and difficult to follow. 3 When the investigators
began to question Cook about Morris, Cook initially
maintained that he was at his cousin’s house the night of the
murder and only heard about it after the fact.

    Almost two hours into the interview, around 8:57 p.m.,
the investigators shifted their approach to a more direct
verbal confrontation about the Morris murder. They told

     3
        When asked for his date of birth and age at the start of the
investigation, Cook stated that his birthdate was September 25, 1971
(which would have made him twenty years old), but then stated he was
nineteen years old when asked for his age. When Sabin pointed out the
inconsistency between his responses, Cook responded with, “that’s what,
what my mother told me, so.” The district court interpreted this colloquy
as one of the first “signs that Cook was either seriously confused, or
otherwise mentally incompetent.” Cook was actually eighteen years old
at the time of his interview.
10                    COOK V. KERNAN

Cook, “[E]verything you been giving us up till now has been
bullshit,” and claimed they had multiple witnesses,
fingerprint evidence, and shell casings all pinning him to the
murder. In an effort to persuade Cook to confess, the
investigators made statements such as: “[N]ow’s the time for
you to tell the truth son, the absolute truth”; “If Fat Man did
something to you that made you shoot him, we want to hear
that”; and, “[N]ot only you’re going to look like a killer, but
you’re going to look like a liar on top of it.” Cook responded
to these statements with mostly one-word responses,
eventually telling the investigators, “I really can’t say too
much about it ‘cause um, I’m not going to endanger my
family’s life.” The investigators continued to insist that
Cook “tell the truth,” until Cook finally stated:

       I don’t, anything I say would endanger my
       family life, I’d rather just, whatever’s going
       to happen to me is going to happen anyway.
       I’m either being . . . you know what I’m
       saying, if you got all this evidence on me,
       either way, I’d say whatever, yes or no, yes
       or no, I’ll either get the electric chair, 25 to
       life, so, you know what I’m saying, it didn’t,
       it really shouldn’t even matter what I say.

    At this point, Cook had not explicitly admitted to
shooting Morris, but the investigators continued to ask him
why he killed Morris and whether it was because Morris had
threatened him. Their questioning led Cook to discuss
various incidents where he had felt threatened by or
experienced conflict with Morris. Around 9:34 p.m., in
response to the investigator’s prompting, “[N]ot only is
[Morris] disrespecting you, but he’s threatening you for no
reason, you didn’t do anything to him, did you? Did you
ever do anything to him?,” Cook began to cry, replying, “No,
                        COOK V. KERNAN                            11

I never do nothing to nobody, I try to be everybody friend. I
can’t work ‘cause I live on another part.” As Sabin
continued to question Cook about the Morris shooting, Cook
tearfully reiterated his fears about endangering his family,
making statements such as: “I’m in for it regards if I say
something or not . . . if I tell you something, then, put my
family life in danger, I’d rather something just happen to
me”; “It shouldn’t really matter, whatever I say now, you
said I’m guilty . . . you got all this stuff that I’m in it, so . . .
regardless of what I say, you know what I’m saying, it’s not
going to happen . . . if you all plan on killing me or whatever
. . . I’m doing electric chair or 25 to life . . . it just don’t
matter now”; “And then, after I tell you all the truth,
whatever it is, who, you know what I’m saying, I got to face
the consequences of what happened to, what if somebody
kill my father and them.”

    At one point, Sabin asked Cook, “[A]re you telling us
you didn’t shoot this guy, is that what you’re saying?,” and
Cook answered, “I didn’t say I did or I didn’t.” Sabin and
Eatmon emphasized again all the evidence they had linking
Cook to the murder, and told Cook he only needed to explain
his motive. Cook finally responded, “The only thing I can
tell you, what the truth is, I remember, the last thing I
remember, he came up to the car and he, I forgot what he
said, and last thing I just like blanked out, that’s the last thing
I remember.” As the investigators pressed Cook for
additional detail, Cook admitted that he was in the car with
Branner and Senegal and had a gun with him, but continued
to maintain that he could not remember what happened after
Morris approached the car because he “blank[ed] out.”

    Cook did not provide substantially more information
after this admission, despite continued questioning over the
next two hours. At one point, Sabin expressed frustration
12                        COOK V. KERNAN

with Cook’s responses, stating, “I hate to say this Walter, I
really do, because we’ve come a long way . . . since when
you were totally telling us bullshit, okay . . . . But, if you
were sitting over here, being me, would you believe that?”
Cook responded, “That’s, that’s what happened, I’m telling
you, I’m telling you everything that I remember.”

    Around 11:13 p.m., in response to a question about why
he went to therapy as a child, Cook suddenly began to sob
loudly and talk about the physical abuse of his mother by his
father when he was younger. Faced with an increasingly
emotional Cook, Sabin and Eatmon offered him a drink and
unsuccessfully tried to reengage him in questions about
Morris. Instead of responding to questions about Morris,
however, Cook continued to discuss his abusive childhood,
while still crying and making statements such as: “I don’t
care, they can kill me, do whatever they want, I don’t care
no more”; “I hope they kill me or whatever, I don’t want to
worry about waking up every night, just thinking about got
to help my mother, and I can’t do nothing to stop it . . . let
them kill me, I don’t care, I have nothing to live for, nobody
even care about me anyway so, I mean, it’s better if I’m
gone”; “I don’t care what happens to me, kill me, I’d be more
of a big heavy burden.” By 11:38 p.m., the investigators
decided to take a break to allow Cook to calm down and
escorted him back to his cell. 4


     4
       In his state habeas petition, Cook alleged for the first time that,
during this half-hour break in his interview, Sergeant Eatmon threatened
him at gunpoint. According to Cook, as Eatmon escorted Cook from his
cell to the interrogation room, Eatmon pulled Cook into a restroom, held
a gun to Cook’s head, and threatened to harm him if he did not confess
to killing Bettencourt. Cook did not offer a sworn affidavit personally
attesting to this allegation in either his state or federal habeas petition,
nor do the affidavits from trial counsel in response to his ineffective
                        COOK V. KERNAN                            13

   The taped interview resumed around 12:10 a.m. Sabin
reminded Cook again of his Miranda rights:

        SABIN: Okay, Walter, when we initially
        started this interview we read you your
        Miranda rights, do you remember those?

        COOK: Uh-hum.

        SABIN: Okay. And you still want to talk to
        us is that correct?

        COOK: Yeah, it don’t matter.

        SABIN: Okay. I want you to understand
        that, if at some point in time you don’t want
        to talk to us anymore, say so, okay?
        Understand?

        COOK: Yes.

        SABIN: Okay. If you want us to stop at
        some point in time and take a break, say so
        with [sic] that alright?

        COOK: Uh-hum.

        SABIN: I want you to be totally comfortable
        with this, okay?



assistance of counsel claims mention this allegation. The California
Supreme Court denied Cook’s petition without granting his request for
an evidentiary hearing on this claim.
14                        COOK V. KERNAN

         COOK: Uh-hum.

Sabin then began questioning on the Bettencourt murder,
which led to a somewhat abrupt confession from Cook:

         SABIN: Alright. What we want to talk to
         you about Walter is an incident that happened
         on February 14th, 1992, on Alberni Street.
         Alberni near Jervis, do you have any idea
         what I’m talking about?

         COOK: Uh-hum.

         SABIN: Okay. Do you want to tell me what
         you know about it?

         COOK: Yeah, I did it, I actually don’t know
         why. And that’s all you need to know. Well,
         I don’t care.

Sabin pressed for more information, but Cook declined to
provide additional detail, asserting that he could not
remember or did not know what happened, but knew that he
committed the shooting. 5 The questioning continued until
about 1:42 a.m., when Eatmon gave Cook a glass of water
and aspirin at Cook’s request, and Sabin left to use the
restroom. Around 1:50 a.m., after Cook began coughing up

     5
       Cook’s responses to various questions included: “Well, the whole
plan is, everyone know that I did it or not, I did it so, you all can just
shoot me or whatever, it don’t matter.”; “Well, I don’t really know. The
only thing I know that I, I shot the dude, that’s all I know.”; “I don’t, I
don’t know what happened. Last thing I remember, I know I shot the
guy, that’s all I remember happening.”; “No, I don’t remember nothing.
The only thing, the only thing I remember, I know I shot the dude, that’s
all I remember.”
                      COOK V. KERNAN                        15

his aspirin, the investigators decided to terminate the
interrogation for the night.

    The interview resumed the next day around 12:49 p.m.
Sabin again asked Cook if he remembered “the Miranda
rights I read to you yesterday when we first met?” Cook
answered, “Um, not really.” Sabin then reread the Miranda
rights to Cook and asked if he had any questions. Cook
responded, “So, therefore that um, like, when you all talk to
me I’m supposed to have an attorney here or something?”
Sabin answered, “No, you have the right to have one here if
you want,” which prompted this exchange:

       COOK: Is that the only time you could have
       an attorney to be able, when you go to court?

       SABIN: You can have an attorney present
       any time during these, these proceedings.

       COOK: I didn’t know that.

       SABIN: Okay, well, do you remember me
       reading that off to you yesterday?

       COOK: Not really, but I remember you was
       reading something about my rights.

     Cook then told the investigators he wanted to talk to his
mother before he continued speaking with them. Sabin
asked Cook a few more questions as to whether he
understood his rights the day before. Cook answered, “No,
I, I didn’t know that . . . you could have a lawyer . . . while
you guys talk to me. I didn’t know that,” “I remember you
telling me that I didn’t, like to remain silent,” and “Yeah, I
thought I did [understand], but I guess I didn’t, I didn’t know
16                       COOK V. KERNAN

that like, when you guys talked to me that, I could have a
lawyer here.”

    After Cook was given an opportunity to talk to his
mother, he returned to the interview at 6:20 p.m. and
informed the investigators he did not want to talk to them
because his mother “told me I should wait till I get back to
California, we got to talk to my lawyer.” The officers
subsequently ended the interview. 6

                                  C.

    At the time of his arrest and interview, Cook was
eighteen years old. According to Dr. William Lynch, a
neuropsychologist who evaluated Cook prior to trial, Cook’s
“full scale” IQ was 89 and his intelligence was “low average
overall . . . with verbal and performance abilities falling at
the extreme low end of the average range.” Dr. Zakee
Matthews, a clinical psychologist who also evaluated Cook
prior to trial, opined that Cook suffered from PTSD. Neither
Dr. Lynch nor Dr. Matthews reviewed the transcripts or
videotape of Cook’s interrogation as part of their pre-trial
evaluations.

    Over a decade later, at the request of Cook’s state habeas
counsel, Dr. Matthews reviewed Cook’s videotaped
interview and opined that “it was extremely unlikely
Mr. Cook could have meaningfully understood the
admonition regarding his legal rights as expressed in the
language and manner used by the interrogating officers.”

     6
      On June 30, 1992, Cook submitted to another interview with two
different detectives from the San Mateo County Sheriffs’ Office, during
which he confessed to killing Earnest Sadler. Cook was not read his
Miranda warnings at this interview, and these statements pertaining to
Earnest Sadler were not used at trial.
                      COOK V. KERNAN                         17

According to Dr. Matthews, “Cook’s spontaneous questions
and comments . . . confirm that he did not have an adequate
comprehension of his rights necessary to make a knowing
and intelligent waiver.”

    In 1992, Dr. George Wilkinson was retained by the
defense team to perform a forensic pretrial evaluation of
Cook, which included a review of the audiotaped recordings
and “a half-hour videotape” of the interrogation. In his
pretrial evaluation, Dr. Wilkinson concluded that Cook “had
life-long attentional and learning disabilities that reduced his
performance even below his measured intelligence level of
borderline to low average.” He also noted “a pattern of
deficits affecting memory and information-processing that
rendered Mr. Cook vulnerable, particularly when under
stress, to becoming overwhelmed and confused. Individuals
with such impairments are dependent upon cues and
guidance from others to maintain a useful and functional
organization of information.” In 2005, at the request of state
habeas counsel, Dr. Wilkinson reviewed additional material
and rendered an updated opinion that, had he been asked to
do so at trial, he would have opined that “the circumstances
of     the      interrogation,   including       Mr.     Cook’s
neuropsychological and intellectual impairments and the
effects of his trauma-based symptoms, prevented him from
knowingly and intelligently understanding and waiving his
right to remain silent.”

   Two other mental health experts also evaluated Cook
years after trial and provided declarations in support of his
2005 state habeas petition. Dr. Myla Young concluded that
Cook’s full scale IQ was 83 with a “level of performance . . .
similar to that demonstrated by most children with an age
equivalence of 9.9 years.” Based on her testing, Dr. Young
concluded that “the impairments that Mr. Cook
18                   COOK V. KERNAN

demonstrates in 2004 would have been present at the time of
the offenses and his trial,” and noted that her conclusions
were “consistent with those reported by Dr. Lynch in 1994.”

    Dr. George Woods provided an extensive report in 2005,
stating that

       [Cook] is easily distracted by external stimuli
       and internal dialogue, cannot inhibit
       impulsive response selection or retrieve
       information     accurately,     and     readily
       incorporates cues, prompting and direction
       from others into his strategies for recalling
       information. Under the best of circumstances
       these cognitive deficits render Mr. Cook
       vulnerable      to      suggestibility     and
       confabulation, i.e., adopting a created or
       suggested memory to fill a void where only
       partial or no memory exists.

Dr. Woods further opined that “Cook’s repeated inability
spontaneously to offer details of events, to confidently
confirm or deny suggested details or to indicate other than a
lack of memory for events are strong indications that
independent recollection was not accessible to him.”
According to Dr. Woods, “The methods of interrogation and
Mr. Cook’s evolving acquiescence in acknowledging
possible, probable, or even actual involvement in the
offenses are accompanied by so many symptomatic signs of
dissociation and confabulation, the videotape could serve as
a didactic instrument for permitting clinicians to observe the
psychological dynamics that might lead to a false
confession.”
                     COOK V. KERNAN                        19

                             D.

    At Cook’s trial in 1994, the prosecution presented
multiple witnesses linking Cook to each murder, ballistics
evidence, and medical evidence, as well as Cook’s taped
confession to the Bettencourt and Morris murders. The jury
convicted Cook of three counts of first-degree murder in
violation of California Penal Code § 187, with a special
allegation of multiple murders under California Penal Code
§ 190.2(a)(3), amongst other offenses. A month later, the
jury returned a death verdict. In August 2006, the California
Supreme Court issued its opinion on direct appeal and
affirmed Cook’s convictions and death sentence in full.
People v. Cook, 139 P.3d 492 (Cal. 2006).

    In August 2005, while his appeal was still pending
review, Cook filed a habeas petition with the California
Supreme Court, raising seventeen claims, which included his
claim that the state’s reliance on his confession violated his
constitutional rights. The petition also raised a number of
new factual allegations, including the allegation that
Sergeant Eatmon had threatened Cook at gunpoint during the
interview, and requested an evidentiary hearing into the
allegations.

    On December 15, 2010, the California Supreme Court
issued its one-page decision on Cook’s habeas petition. The
California Supreme Court first ordered the Director of the
Department of Corrections and Rehabilitation to “show
cause in the San Mateo County Superior Court . . . why
petitioner’s death sentence should not be vacated and
petitioner sentenced to life without the possibility of parole
on the ground that he is mentally retarded within the
meaning of Atkins v. Virginia . . . .” It then summarily
denied “[a]ll of the remaining claims in the petition . . . on
the merits.” The California Supreme Court also invoked
20                        COOK V. KERNAN

procedural bars for a number of Cook’s claims, including the
claim that “his statements to police were obtained in
violation of his constitutional rights.”

    In November 2014, the San Mateo County Superior
Court found that Cook met diagnostic criteria for intellectual
disability within the meaning of Atkins, 536 U.S. 304,
vacated the death sentence, and resentenced Cook to life in
prison without the possibility of parole.

    In December 2015, Cook filed his federal habeas petition
with the district court, raising seven claims, each of which
had been previously raised in his state habeas petition. Cook
also moved the district court for an evidentiary hearing to
look “into all disputed issues of fact material to his Petition
for Habeas Corpus,” including his claim that Sergeant
Eatmon threatened him at gunpoint into confessing to the
Bettencourt murder.

    The district court denied Cook’s habeas petition. It
denied Cook’s motion for an evidentiary hearing because
“[a]ll issues presented by his petition can be resolved on the
record” and “[o]ther allegations would not entitle Cook to
relief even if proven true. . . .” In regard to Cook’s claims
pertaining to his statements to police, the district court
concluded that Cook’s Miranda waiver was not knowing and
intelligent, 7 but the admission of the confession at trial was



     7
      According to the district court, “[g]iven substantial evidence of
[Cook’s] inability to comprehend his rights, including his youth, low IQ,
psychological deficiencies, inability to follow verbal instructions,
dissociation, and his statements to interrogators that he did not
understand he had the right to have a lawyer present at his interrogation,
a contrary conclusion is unreasonable.”
                        COOK V. KERNAN                             21

not prejudicial because the remaining evidence still
supported the Morris and Bettencourt murder convictions. 8

                                 II.

   This court reviews de novo the district court’s denial of
habeas relief. Murray v. Schriro, 882 F.3d 778, 801 (9th Cir.
2018).

    As amended by AEDPA, 28 U.S.C. § 2254(d) requires
“highly deferential” review of state court adjudications,
“demand[ing] that state-court decisions be given the benefit
of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333
n.7 (1997)). A federal court’s authority to grant habeas relief
is limited to instances where the state court’s ruling was
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state
court adjudicated the claim on the merits, 28 U.S.C.
§ 2254(d)(1), or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
at the State court proceeding.” Id. § 2254(d)(2).

    The “contrary to” and “unreasonable application”
clauses of § 2254(d)(1) have independent meaning.
Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court’s decision is “contrary to” clearly established federal
law if it “applies a rule that contradicts the governing law set
forth in [Supreme Court] cases” or if it “confronts a set of
facts that are materially indistinguishable from a decision of

    8
      Having found a Miranda violation, but no prejudice, the district
court declined to reach the question of whether Cook’s confession was
involuntary.
22                    COOK V. KERNAN

[the Supreme] Court and nevertheless arrives at a result
different from [this] precedent.” Id. at 405–06.

    A state court’s decision is an “unreasonable application”
of clearly established federal law if it “correctly identifies
the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.” Id. at 407–08. “The
‘unreasonable application’ clause requires the state court
decision to be more than incorrect or erroneous”; it must be
“objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003) (quoting Williams, 529 U.S. at 410); see also
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The
question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable—a
substantially higher threshold.”) (citing Williams, 529 U.S.
at 410). In other words, “[a]s a condition for obtaining
habeas corpus [relief] from a federal court, a state prisoner
must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011).

    Similarly, in regard to claims under § 2254(d)(2), a state
court’s factual determination is not “unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen,
558 U.S. 290, 301 (2010). Even if “[r]easonable minds
reviewing the record might disagree” about a factual finding,
“on habeas review that does not suffice to supersede” the
state court’s determination. Rice v. Collins, 546 U.S. 333,
341–42 (2006).
                         COOK V. KERNAN                              23

                                  III.

    Cook claims that the state’s reliance on his confession
prejudicially violated his constitutional rights, because his
statements to police were unlawfully obtained in two ways.
First, Cook asserts he was unable to understand his Miranda
rights from the outset of his interrogation and thus did not
knowingly and intelligently waive them. Second, Cook
alleges that his confessions were coerced based on the
totality of the circumstances as established by the existing
record.

    The California Supreme Court summarily denied this
claim “on the merits.” 9 Despite the state court’s lack of
explanation for its denial of relief, our review is still subject
to AEDPA. See Cullen v. Pinholster, 563 U.S. 170, 187
(2011) (“Section 2254(d) applies even where there has been
a summary denial.”).

         Where a state court’s decision is
         unaccompanied by an explanation, the
         habeas petitioner’s burden still must be met
         by showing there was no reasonable basis for
         the state court to deny relief. This is so
         whether or not the state court reveals which
    9
      The California Supreme Court also found this claim procedurally
barred under In re Seaton, 95 P.3d 896 (Cal. 2004). While this court has
not yet squarely addressed whether In re Seaton provides an “adequate
and independent” state procedural rule that bars federal habeas review,
we need not decide this question given the state’s failure to plead the
existence of such a bar to Cook’s claim. See Bennett v. Mueller, 322 F.3d
573, 586 (9th Cir. 2003). In fact, at oral argument, the state expressly
asserted that no procedural bar applies to this claim. Accordingly, we
consider any procedural bar waived and proceed to review the merits of
Cook’s claims regarding the validity of his Miranda waiver and the
voluntariness of his confession under the AEDPA standard.
24                   COOK V. KERNAN

       of the elements in a multipart claim it found
       insufficient, for § 2254(d) applies when a
       ‘claim,’ not a component of one, has been
       adjudicated.

Richter, 562 U.S. at 98. Thus, in reviewing the California
Supreme Court’s summary denial of Cook’s claim, we must
determine: (1) “what arguments or theories supported or . . .
could have supported . . . the state court’s decision”; and
(2) “whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court.” Id.
at 102. Given this deferential standard, Cook is not entitled
to federal habeas relief on his claim because fairminded
jurists could disagree as to whether Cook’s confession was
obtained in violation of his constitutional rights.

                             A.

    Before proceeding with a custodial interrogation, a
suspect must be advised of his Miranda rights: that he “‘has
the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.’” Dickerson v. United States,
530 U.S. 428, 435 (2000) (quoting Miranda v. Arizona,
384 U.S. 436, 479 (1966)); see also Berghuis v. Thompkins,
560 U.S. 370, 380 (2010). A suspect’s waiver of these rights
is valid only if it is “voluntary, knowing and intelligent.”
Miranda, 384 U.S. at 479. Thus, the waiver inquiry “has two
distinct dimensions”—first, it must be “voluntary in the
sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception,” and
second, it must be “made with a full awareness of both the
                      COOK V. KERNAN                        25

nature of the right being abandoned and the consequences of
the decision to abandon it.” Thompkins, 560 U.S. at 382–83
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). A
waiver satisfies this two-part standard only “if the ‘totality
of the circumstances surrounding the interrogation’ reveal
both an uncoerced choice and the requisite level of
comprehension.” Burbine, 475 U.S. at 421 (quoting Fare v.
Michael C., 442 U.S. 707, 725 (1979)).

    On the night of Cook’s arrest and initial interview, he
was advised by police of his Miranda rights—three times in
fact. Each time, Cook readily affirmed that he understood
his rights and wanted to speak anyway, and did so without
any apparent form of intimidation, coercion, or deception
from the investigators providing the warnings. Each time
the investigators read or reminded Cook of his Miranda
rights during the interview, they also followed up with
additional questions to ensure that Cook understood the
rights he was read and wanted to waive them and proceed
with the questioning, which—from at least an objective
vantage point—Cook did. In that respect, the record
supports the conclusion that Cook’s Miranda waiver was
voluntary.

    However, the mere fact “that a Miranda warning was
given and the accused made an uncoerced statement, . . .
standing alone, is insufficient to demonstrate ‘a valid
waiver’ of Miranda rights.” Thompkins, 560 U.S. at 384
(quoting Miranda, 384 U.S. at 475). “The prosecution must
make the additional showing that the accused understood
these rights[,]” id., meaning that his waiver was also
knowing and intelligent. “The determination of whether
there has been an intelligent waiver . . . must depend, in each
case, upon the particular facts and circumstances
surrounding that case, including the background, experience,
26                   COOK V. KERNAN

and conduct of the accused.” Johnson v. Zerbst, 304 U.S.
458, 464 (1938). Here, the record evidence contains some
indication that Cook did not understand his right to have an
attorney present during his interrogation—and thus did not
knowingly and intelligently waive this particular right.
These factors include: the weight of the mental health
evidence regarding his cognitive inability to understand the
rights warnings; the occasional indications of his confusion
or lack of comprehension during the interview; and the
statements he made on the second day of his interview, when
he questioned whether he could have a lawyer present and
asserted that he did not previously understand this right.

    At the same time, “[t]he Constitution does not require
that a criminal suspect know and understand every possible
consequence of a waiver of the Fifth Amendment privilege.
The Fifth Amendment’s guarantee is both simpler and more
fundamental: A defendant may not be compelled to be a
witness against himself in any respect.” Colorado v. Spring,
479 U.S. 564, 574 (1987). The totality of Cook’s conduct,
particularly on the first day of his interview, as well as his
background and experience, support the conclusion that
Cook fundamentally understood his Fifth Amendment
rights. Cook had been arrested and been provided Miranda
warnings on several occasions in the past, which the
investigators confirmed at the beginning of the interview.
And throughout much of the interview, Cook was able to
respond coherently to the investigators’ questions. Based on
these factors, the government’s alternative interpretation of
the circumstances is reasonable: Cook “understood his rights
and agreed to speak with police without counsel but then
changed his mind the next day, proffering the self-serving
                         COOK V. KERNAN                              27

excuse that he had not earlier understood his right to
counsel.” 10

    Under AEDPA’s deferential standard of review, we must
keep in mind that review of Cook’s habeas action is “not a
substitute for ordinary error correction through appeal.”
Richter, 562 U.S. at 102–03. In order to grant relief, we are
required to find that no fairminded jurist could conclude that
Cook knowingly and voluntarily waived his Miranda rights.
Although there are certain facts in the record that may
support a finding that Cook did not fully and completely
understand his right to have an attorney present at his
interrogation, we must give even greater deference under
AEDPA when determining whether the case-specific
application of a general standard, such as the “totality of the
circumstances” test, provides a reasonable basis for a state
court decision. Based on the facts that Cook was repeatedly
warned of his Miranda rights, expressly acknowledged the
warnings, and offered coherent and knowing answers to the
officers’ questions, the California Supreme Court had a
reasonable basis to reject Cook’s challenge to the validity of
his Miranda waiver. 11


    10
       Given these circumstances, the dissent’s assertion that we find
“one-word verbal affirmations” sufficient to establish that Cook
understood the rights he was waiving obviously mischaracterizes our
decision. See Dissent at 48.
    11
       The dissent arrives at a contrary conclusion after conducting what
appears to be its “own independent inquiry into whether the state court
was correct as a de novo matter” under the guise of AEDPA review.
Yarborough v. Alvarado, 541 U.S. 652, 665 (2004). It is emphatically
not the role of a federal habeas court to “issue the writ simply because
that court concludes in its independent judgment that the state-court
decision applied [the law] incorrectly.” Id. (quoting Woodford v.
Visciotti, 537 U.S. 19, 24–25 (2002) (per curiam)).
28                   COOK V. KERNAN

                             B.

     We next address the voluntariness of Cook’s confession.
An involuntary or coerced confession is inadmissible at trial,
Lego v. Twomey, 404 U.S. 477, 478 (1972), because its
admission is a violation of a defendant’s right to due process
under the Fourteenth Amendment, Jackson v. Denno,
378 U.S. 368, 385–86 (1964). A confession is involuntary
if it is not “‘the product of a rational intellect and a free
will.’” Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir.
1989) (citation omitted). A “necessary predicate” to finding
a confession involuntary is that it was produced through
“coercive police activity.” Colorado v. Connelly, 479 U.S.
157, 167 (1986). Coercive police activity can be the result
of either “physical intimidation or psychological pressure.”
Townsend v. Sain, 372 U.S. 293, 307 (1963). Whether a
confession is involuntary must be analyzed within the
“totality of [the] circumstances.” Withrow v. Williams,
507 U.S. 680, 693 (1993). “The factors to be considered
include the degree of police coercion; the length, location
and continuity of the interrogation; and the defendant’s
maturity, education, physical condition, mental health, and
age.” Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011)
(citations omitted).

    Cook argues that the evidence in the existing record
establishes coercion, highlighting the expert opinions that
his statements to police were not voluntary based on his
mental capabilities at the time. Cook likens his situation to
United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) (en
banc), where we held that the 38-minute noncustodial
interview of an eighteen-year old with an IQ of 65 was
coercive and rendered his confession involuntary. Cook’s
IQ at the time of his interview ranged between 83 to 89,
which is notably higher than Preston’s. However, other
                      COOK V. KERNAN                        29

aspects of Cook’s interrogation are comparable to Preston’s,
such as their similar age and some of the descriptions of their
mental attributes—i.e., “easily confused” and “highly
suggestible and easy to manipulate.” Id. at 1022. Cook’s
investigators also employed some of the same interrogation
techniques that we noted “would be hard for a person of
Preston’s impaired intelligence to withstand or rationally
evaluate”—such as “alternative questioning, providing
suggestive details, and repetitious and insistent questions.”
Id. at 1025–26. Moreover, Cook’s custodial interrogation
also lasted around seven hours—far longer than the
noncustodial interview in Preston—during which Cook
became emotional at times and appeared physically
exhausted by the end. These factors, on de novo review,
could support the same conclusion we reached in Preston:
that the “subtle forms of psychological persuasion”
employed by the investigators were sufficiently coercive to
overcome Cook’s will. See id. at 1023 (quoting Connelly,
479 U.S. at 164).

    However, our opinion in Preston is not “clearly
established” Supreme Court precedent and thus not
controlling under AEDPA review. See Williams, 529 U.S.
at 412 (stating that the phrase “clearly established Federal
law” in § 2254(d)(1) “refers to the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time
of the relevant state-court decision”). Moreover, none of the
Supreme Court cases cited by Cook provide us with a
“materially indistinguishable” set of facts by which we can
determine whether the state court’s decision to deny relief in
Cook’s case ran contrary to clearly established federal law.
See id. at 405. Nor do we find that the state court’s
conclusion would be an unreasonable application of clearly
established federal law to the facts of Cook’s case. Indeed,
the “totality of the circumstances” test for voluntariness as
30                    COOK V. KERNAN

established by the Supreme Court is a fact-based analysis
that inherently allows for a wide range of reasonable
application. Since “[a]pplying a general standard to a
specific case can demand a substantial element of
judgment,” federal courts must provide even “more leeway”
under AEDPA in “evaluating whether a rule application was
unreasonable . . . in case-by-case determinations.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also
Richter, 562 U.S. at 101 (applying this greater degree of
deference in a case where the state court denied habeas relief
in a one-sentence summary order).

    Given this, Cook utterly fails to show how the conclusion
that his confession was voluntary under the totality of the
circumstances is “inconsistent with the holding in a prior
decision of the Supreme Court.” Richter, 562 U.S. at 102.
Cook’s case presents several circumstances that, taken
together, could reasonably support the finding that his
confession was voluntary. First, there is the apparent lack of
blatantly coercive police activity from the videotaped
interview. Aside from some of the suggestive or “repetitious
and insistent” questioning we earlier noted, the entire
interview contains little indication of coercion. In fact, the
investigators’ interactions with Cook throughout the
interview appear professional, calm, and even affable at
times. They did not raise their voices or threaten Cook or
make explicit promises of leniency for his confession, and
they offered him breaks, food, and water throughout the
interview. Second, Cook’s responses, taken as a whole,
could be reasonably viewed as a deliberate—and largely
successful—effort on his part to resist the officers’
interrogation tactics. Throughout the interview, Cook
manages to evade the officers’ repeated and varied attempts
to elicit specific admissions and inculpating details about the
crimes, often by providing non-responsive, diversionary
                           COOK V. KERNAN                                31

answers to their questions. When he does finally “confess,”
he makes only vague admissions to facts that minimize his
culpability for the crimes—for instance, his repeated claims
that he “blanked” out and does not remember actually
committing the murders.          Third, the circumstances
surrounding the crimes and Cook’s personal history—such
as his disposal of the murder weapon and flight to Oklahoma
after the Morris shooting, as well as his previous arrests and
experience with law enforcement—suggest that he could
appreciate the gravity of his situation and his actions and
could take affirmative measures to minimize or mask his
guilt.

   In light of the state court record, the California Supreme
Court had a reasonable basis to conclude that Cook’s
confession was voluntary.

                                     C.

    We finally address Cook’s request for an evidentiary
hearing into his allegation that Sergeant Eatmon threatened
him at gunpoint during his interview. As evidentiary support
for his factual claim, Cook cites to the videotaped
confession, in which he claims he makes indirect references
to Eatmon’s gunpoint threat, 12 and to his proffered evidence
“that Eatmon had a reputation for sadistic violence, and a
documented history of lying and lacking integrity.”
Although Cook presented this evidence along with a request
for an evidentiary hearing in his state habeas petition, the
California Supreme Court summarily denied his petition

    12
       Specifically, Cook points out that, minutes after Eatmon allegedly
threatened him and the interrogation resumed, he states, “[E]veryone
know that I did it or not, I did it so, you all can just shoot me or whatever
it don’t matter.”
32                    COOK V. KERNAN

without granting a hearing on this issue. According to Cook,
because the state court never afforded him an evidentiary
hearing to develop his claim, its fact-finding process was
deficient, and this court should review Cook’s claims de
novo. Alternatively, Cook asks us to “remand to the district
court for an evidentiary hearing on the allegation against
Eatmon.” Cook’s arguments essentially raise two separate
claims: (1) the state habeas court’s failure to make any
factual findings regarding the alleged gunpoint threat by
Sergeant Eatmon was, in itself, an “unreasonable
determination of the facts” under § 2254(d)(2), and (2) Cook
is otherwise entitled to a federal evidentiary hearing under
§ 2254(e)(2).

    To determine whether a petitioner is entitled to an
evidentiary hearing under § 2254(e)(2), a court must first
determine whether a factual basis exists in the record to
support the petitioner’s claim. Insyxiengmay v. Morgan,
403 F.3d 657, 669–70 (9th Cir. 2005) (quoting Baja v.
Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999)). If the
record contains a sufficient factual basis that “refutes the
applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary
hearing.” Landrigan, 550 U.S. at 474; see Pinholster,
563 U.S. at 171 (“[A] federal habeas court is ‘not required to
hold an evidentiary hearing’ when the state-court record
‘precludes habeas relief’ under § 2254(d)’s limitations.”)
(citation omitted). If the factual basis for a claim is
undeveloped or absent, the next inquiry is whether petitioner
“failed to develop” these facts in state court proceedings.
Insyxiengmay, 403 F.3d at 669–70. Only when a petitioner
demonstrates that he did not fail to develop the factual basis
for his claim in state court may a federal court proceed to
consider whether a hearing is appropriate or required under
the framework set forth in Townsend v. Sain. Id.
                      COOK V. KERNAN                        33

    Under this analytical framework, Cook is not entitled to
an evidentiary hearing. Cook’s failure to develop the factual
basis for his claim in state court proceedings was due to his
own lack of diligence. “Under the opening clause of
§ 2254(e)(2), a failure to develop the factual basis of a claim
is not established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams, 529 U.S. at 432; see Baja, 187 F.3d
at 1078. The standard for determining “diligence” is
whether a petitioner “made a reasonable attempt, in light of
the information available at the time, to investigate and
pursue claims in state court.” Williams, 529 U.S. at 435.
Absent unusual circumstances, diligence requires “that the
prisoner, at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law.” Id. at 437.
However, “a petitioner who ‘knew of the existence of []
information’ at the time of his state court proceedings, but
did not present it until federal habeas proceedings, ‘failed to
develop the factual basis for his claim diligently.’” Rhoades
v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting
Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.
2005)).

    Cook claims he was diligent simply because he requested
an evidentiary hearing in his 2005 habeas petition to the
California Supreme Court but was denied. However,
Sergeant Eatmon allegedly threatened Cook during his
interrogation in 1992, which was nearly two years prior to
his trial. Thus, Cook was aware of the facts underlying this
claim both prior to trial and long before he first raised it in
his habeas petition. Cook does not explain whether he
informed his counsel about this incident, or why this factual
allegation was not raised at trial or on appeal, except in the
context of his claim that his trial counsel was ineffective.
Cook’s counsel did not cross-examine Sergeant Eatmon on
34                     COOK V. KERNAN

this alleged threat, nor do they mention the incident in either
the motion to suppress the confession at trial, or in their 2005
state habeas affidavits—all of which suggests that Cook’s
counsel were unaware of Sergeant Eatmon’s alleged threat
during the interview because Cook never informed them.
Cook does not assert otherwise, nor does he proffer any
reason for why he should be absolved of his personal
responsibility for the diligent pursuit of his claims. Under
§ 2254(e)(2), we may not grant Cook an evidentiary
hearing—almost three decades after trial in federal habeas
court—to develop the factual basis of a claim that Cook
knew of before trial and failed to develop during his state
proceedings.

    For similar reasons, we also reject Cook’s claim that the
state habeas court’s denial of an evidentiary hearing into his
Sergeant Eatmon allegation was, in itself, an “unreasonable
determination of the facts” under § 2254(d)(2). We view
Cook’s argument here as essentially an “intrinsic” challenge
to the state court’s determination of fact under § 2254(d)(2),
which “may be based on a claim . . . ‘that no finding was
made by the state court at all,’ when it was required to make
a finding.” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir.
2014) (quoting Taylor v. Maddox, 366 F.3d 992, 999 (9th
Cir. 2004)). When performing an intrinsic review, we “may
only hold that a state court’s factfinding process is materially
defective if we are ‘satisfied that any appellate court to
whom the defect is pointed out would be unreasonable in
holding that the state court’s fact-finding process was
adequate.’” Id. (quoting Taylor, 366 F.3d at 1000). Cook
fails to overcome this standard because he does not show
how the state court was required to afford him an evidentiary
hearing to develop a factual allegation of which he was
aware, but did not raise, at trial. In short, Cook is not entitled
                     COOK V. KERNAN                       35

to an evidentiary hearing under AEDPA, and the district
court did abuse its discretion in denying his request.

                            IV.

    We affirm the district court’s denial of relief on Cook’s
claim that his confession was obtained in violation of his
constitutional rights. Based on the record, the state habeas
court had a reasonable basis for finding that Cook’s waiver
was knowing and intelligent, and that his confession was not
coerced and involuntary. In addition, Cook is not entitled to
an evidentiary hearing on the issue of the voluntariness of
his confession because he failed to timely develop in state
court the factual basis for his claim that Sergeant Eatmon
threatened him at gunpoint. The district court’s denial of
Cook’s habeas petition is AFFIRMED.



CALLAHAN, Circuit Judge, concurring:

    Because the state court could have reasonably denied
Cook’s claim on the ground that his Miranda waiver was
valid and his statements to police were voluntarily given, we
are compelled to deny relief under AEDPA and need not
reach the question of whether Cook was prejudiced by the
admission of his statements. But if we did, I would agree
with the district court that the California Supreme Court
could have reasonably denied Cook’s claim on the ground
that any error was harmless.

    “For reasons of finality, comity, and federalism, habeas
petitioners ‘are not entitled to habeas relief based on trial
error unless they can establish that it resulted in actual
prejudice.’” Davis v. Ayala, 135 S. Ct. 2187, 2197, 192 L.
Ed. 2d 323 (2015) (quoting Brecht v. Abrahamson, 507 U.S.
36                   COOK V. KERNAN

619, 637 (1993)). In testing for prejudice under AEDPA’s
deferential standard of review, “relief is proper only if” we
have “grave doubt about whether a trial error of federal law
had ‘substantial and injurious effect or influence in
determining the jury’s verdict.’” Id. at 2197–98 (quoting
O'Neal v. McAninch, 513 U.S. 432, 436 (1995)). This
standard “reflects the view that a ‘State is not to be put to
th[e] arduous task [of retrying a defendant] based on mere
speculation that the defendant was prejudiced by trial error;
the court must find that the defendant was actually
prejudiced by the error.’” Id. at 2198 (quoting Calderon v.
Coleman, 525 U.S. 141, 146 (1998) (per curiam)). Thus, to
warrant relief under AEDPA, Cook must show that he was
actually prejudiced by the admission of his statements at
trial—“a standard that he necessarily cannot satisfy if a
fairminded jurist could agree with the California Supreme
Court’s decision that [the error was harmless].” Id. at 2199.

    Given the totality of the record evidence, Cook is unable
to establish that his statements regarding the murders of
Bettencourt and Morris, if erroneously admitted, had
“substantial and injurious effect” on the jury’s findings of
guilt as to those murders. Brecht, 507 U.S. at 637. As the
dissent points out, a “defendant’s own confession is
probably the most probative and damaging evidence that can
be admitted against him.” Arizona v. Fulminante, 499 U.S.
279, 296 (1991) (citing Bruton v. United States, 391 U.S.
123, 139–40 (1968) (White, J., dissenting)). In Cook’s case
however, the equivocal statements he made in confessing to
the Bettencourt and Morris murders are not particularly
damning admissions of guilt. Even after seven hours of
questioning, Cook provided little detail as to why or how he
committed the murders, offering only vague accounts that he
was at each of the crime scenes with a weapon in hand and
“blanked out.” If anything, Cook’s admissions in his taped
                          COOK V. KERNAN                               37

interview provided evidence that mitigated his mental
culpability for the crimes, which his defense team
reasonably viewed as helpful to his case.

    Moreover, both the Bettencourt and Morris murders
were supported by several different sources of evidence—
including the corroborating testimonies of multiple
witnesses and forensic evidence—all of which consistently
demonstrated that Cook’s shootings of these victims
amounted to similar instances of unprovoked, cold-blooded
murder. The Bettencourt murder was witnessed by a large
group of individuals at the scene, and seven witnesses gave
statements to police that identified Cook as the shooter.
Likewise, the Morris murder was witnessed by the two other
inhabitants in Cook’s car, as well as the women in the car
behind them.

    The dissent claims that most of this evidence was “either
seriously compromised or inconclusive” based on witness
recantations at trial, bias and motives to fabricate, and some
inconsistencies in the evidence. 1 However, even without the


    1
      The dissent also argues that the admission of Cook’s confession
was prejudicial because it led to the trial court’s improper joinder of his
three murder charges, even though Cook himself does not raise this
argument in his habeas petition. In reviewing a state court’s summary
denial of a habeas claim under AEDPA, our task is to determine “what
arguments or theories . . . could have supported[] the state court’s
decision,” Harrington v. Richter, 562 U.S. 86, 102 (2011), not to search
for any arguments or theories that could have supported an opposite
conclusion and grant of relief. Even if we were to consider the question
of prejudice through the lens of an improper joinder claim, the California
Supreme Court reasonably found on direct appeal that the trial court’s
joinder of the charges was proper, and did so by relying on evidence that
was independent of Cook’s confession—i.e., the “substantial cross-
admissibility” of the ballistics evidence between the Bettencourt and
38                     COOK V. KERNAN

eyewitness accounts that were allegedly “compromised” by
bias or recantation, the record contains evidence from
unbiased sources sufficient to support the jury’s verdicts for
the two murders. For instance, in regard to the Morris
murder, Sharoon Reed—a neutral bystander eyewitness with
no apparent bias or motive to fabricate—provided an
account that corroborated the testimony of Senegal and
Branner. Similarly, Nathan Gardner, a bystander who
happened to be on Alberni Street when he saw Cook shoot
Bettencourt, gave Cook a ride from the murder scene and
testified that Cook explained that he shot Bettencourt
because Bettencourt had tried to “gaffle” him. Perhaps more
importantly, Cook’s various challenges to the witnesses’
credibility and other evidence were fully presented to and
weighed by the jury at trial. Ultimately, they do not
undermine the highly probative facts that multiple
witnesses—from different vantage points at each of the
crime scenes and with different relationships to Cook—
provided generally consistent accounts, which, along with
the ballistics evidence, clearly implicated Cook.

    In light of the weight of the evidence in the record, the
state habeas court could have reasonably denied Cook’s
claim on the basis that the admission of his confession did
not prejudice him at trial. Because Cook is unable to show
actual prejudice or that no fairminded jurist could agree with
the California Supreme Court’s rejection of his claim on the
basis of harmlessness, he is not entitled to relief under
AEDPA.




Morris murders, and the common eyewitness between the Morris and
Sadler murders. See People v. Cook, 139 P.3d 492, 505 (Cal. 2006).
                      COOK V. KERNAN                          39

MURGUIA, Circuit Judge, dissenting:

    I respectfully disagree with the majority’s conclusion
that the California Supreme Court could have reasonably
denied habeas relief on the basis that Cook (1) knowingly
and intelligently waived his Miranda rights; and (2) suffered
no prejudice from the improper admission of his unlawfully
obtained confession to the Bettencourt murder and other
incriminating statements. Accordingly, I would reverse the
district court’s denial of habeas relief.

    1. Standard of Review.

    Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a writ of habeas corpus may not be granted
unless the state court’s decision (1) 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)(1);
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding, id.
§ 2254(d)(2).

    “The state court unreasonably applies clearly established
federal law if it ‘either 1) correctly identifies the governing
rule but then applies it to a new set of facts in a way that is
objectively unreasonable, or 2) extends or fails to extend a
clearly established legal principle to a new context in a way
that is objectively unreasonable.’” DeWeaver v. Runnels,
556 F.3d 995, 997 (9th Cir. 2009) (quoting Hernandez v.
Small, 282 F.3d 1132, 1142 (9th Cir. 2002), and then citing
Williams v. Taylor, 529 U.S. 362, 408–09 (2000)); see also
Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016) (en
banc). “As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s
40                   COOK V. KERNAN

ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility of fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011); see also Metrish v.
Lancaster, 569 U.S. 351, 358 (2013).

    “Factual determinations by state courts are presumed
correct absent clear and convincing evidence to the contrary,
§ 2254(e)(1), and a decision adjudicated on the merits in a
state court and based on a factual determination will not be
overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-
court proceeding, § 2254(d)(2).” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003); Davis v. Ayala, 135 S. Ct. 2187,
2199–2200 (2015) (“State-court factual findings, . . . are
presumed correct; the petitioner has the burden of rebutting
the presumption by clear and convincing evidence.” (quoting
Rice v. Collins, 546 U.S. 333, 338–39 (2006))). “Even in the
context of federal habeas, …[d]eference does not by
definition preclude relief. A federal court can disagree with
a state court’s credibility determination and, when guided by
the AEDPA, conclude the decision was unreasonable or that
the factual premise was incorrect by clear and convincing
evidence.” Miller-El v. Cockrell, 537 U.S. at 340.

    Here, the California Supreme Court “denied on the
merits” all of Cook’s habeas claims—including that he did
not knowingly and intelligently waive his Miranda rights—
in a summary order, unaccompanied by an opinion
explaining the reasons relief was denied. “Section 2254(d)
applies even where there has been a summary denial.”
Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (citing
Richter, 562 U.S. at 98). “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
                      COOK V. KERNAN                         41

burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S.
at 98. Therefore, when the state court summarily denies a
petitioner habeas relief, “[u]nder § 2254(d), a habeas court
must determine what arguments or theories . . . could have
supported the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.” Id. at 102
(emphasis added); see also Wilson v. Sellers, 138 S. Ct.
1188, 1191–92 (2018) (“Deciding whether a state court’s
decision ‘involved’ an unreasonable application of federal
law or ‘was based on’ an unreasonable determination of fact
requires the federal habeas court to ‘train its attention on the
particular reasons—both legal and factual—why state courts
rejected a state prisoner’s federal claims,’ and to give
appropriate deference to that decision” (quoting Hittson v.
Chatman, 135 S.Ct. 2126, 2126 (2015) (Ginsburg, J.,
concurring in denial of certiorari) and then citing Richter,
562 U.S. at 101–102)); Johnson v. Williams, 568 U.S. 289,
293 (2013) (holding that where a state habeas court issues an
opinion that addresses some issues but does not expressly
address the federal habeas claim in question, that claim
“must be presumed to have been adjudicated on the merits
by the [state habeas court] . . . [and] the restrictive standard
of review set out in § 2254(d)(2) applies”).

    If we conclude that the state habeas court committed a
constitutional error during a criminal trial, we “must [then]
assess the prejudicial impact of the error under the
‘substantial and injurious effect’ standard set forth in Brecht
v. Abrahamson.” Fry v. Pliler, 551 U.S. 112, 114 (2007)
(quoting 507 U.S. 619 (1993)); see also Jones v. Harrington,
829 F.3d 1128, 1141 (9th Cir. 2016) (“In AEDPA
proceedings, [the court] appl[ies] the actual-prejudice
42                    COOK V. KERNAN

standard set forth [Brecht].”). “There must be more than a
‘reasonable possibility’ that the error was harmful.” Ayala,
135 S. Ct. at 2198 (quoting Brecht, 507 U.S. at 637). “[A]
‘State is not to be put to th[e] arduous task [of retrying a
defendant] based on mere speculation that the defendant was
prejudiced by trial error; the court must find that the
defendant was actually prejudiced by the error.’” Id.
(quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)
(per curiam)).

     2. The state habeas court’s summary conclusion
        that Cook knowingly and intelligently waived his
        Miranda rights was an unreasonable application
        of Thompkins and its progeny and relied on an
        unreasonable determination of the facts.

    The state habeas court’s summary order finding that
Cook knowingly and intelligently waived his Miranda rights
is an unreasonable application of Berghuis v. Thompkins,
560 U.S. 370, 384 (2010), which is clearly established
federal law, and relies on an unreasonable determination of
the facts. Therefore, the admission of Cook’s confession to
the Bettencourt murder and other incriminating statements
about the Morris murder constitutes an unconstitutional trial
error under AEDPA.

    I would affirm the district court’s well-supported finding
that Cook’s Miranda waiver was not knowing and intelligent
under Thompkins, “[g]iven substantial evidence of his
inability to comprehend his rights, including his youth, low
IQ, psychological deficiencies, inability to follow verbal
instructions, dissociation, and his statements to interrogators
that he did not understand he had the right to have a lawyer
present at his interrogation[.]”
                     COOK V. KERNAN                        43

    The Supreme Court has clearly established that a
Miranda waiver must be done knowingly and intelligently.
Thompkins, 560 U.S. at 383 (quoting Miranda v. Arizona,
384 U.S. 436, 475 (1966)). There is a well-established
presumption against waiver, North Carolina v. Butler,
441 U.S. 369, 373 (1979) (quoting Miranda, 384 U.S. 436,
475 (1966)), and the government bears the burden of
overcoming that presumption by introducing sufficient
evidence that, under the totality of the circumstances, Cook
was aware of “the nature of the right being abandoned and
the consequences of the decision to abandon it.” Moran v.
Burbine, 475 U.S. 412, 421 (1986); see also Thompkins,
560 U.S. at 384 (clarifying “that this ‘heavy burden’ is . . .
the burden to establish waiver by a preponderance of the
evidence” (citing Colorado v. Connelly, 479 U.S. 157, 168
(1986))). The government’s burden to make such a showing
“is great,” and we “must indulge every reasonable
presumption against waiver of fundamental constitutional
rights.” United States v. Heldt, 745 F.2d 1275, 1277 (9th
Cir.1984) (citing Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).

    There is no objectively reasonable basis for the
California Supreme Court’s holding that Cook, an
intellectually disabled man with severe mental illnesses, was
competent to fully understand and waive his Miranda rights.
Although the Supreme Court has never directly addressed
whether intellectually disabled and mentally ill defendants
can knowingly and intelligently waive their Fifth
Amendment rights, it would be unreasonable not to apply the
principles of Thompkins and its progeny to award habeas
relief in this case. See Williams, 529 U.S. at 407 (holding
that a state-court decision can be overturned by the federal
courts if the state “unreasonably refuses to extend [a]
principle to a new context where it should apply”); cf.
44                    COOK V. KERNAN

Bradley v. Duncan, 315 F.3d 1091, 1100–01 (9th Cir. 2002)
(holding that state court’s refusal to allow petitioner to put
on entrapment defense constituted unreasonable application
of federal law as it violated his “right to present a complete
and meaningful defense to the jury under the principles set
out in [Supreme Court cases]”).

    The majority advances what are the only four possible
reasons that could have supported the California Supreme
Court’s decision to summarily deny Cook’s claim that he did
not knowingly and intelligently waive his Miranda rights.
First, my colleagues state that Cook fully understood he was
waiving his Miranda rights because, at the outset of the
June 26, 1992 interrogation, he “readily affirmed that he
understood his rights and wanted to speak anyway.” Op.
at 25. Second, they reason that “throughout much of the
[June 26 interrogation], Cook was able to respond
coherently to the investigator’s questions.” Op. at 26. Third,
they submit that he “changed his mind the next day,
proffering the self-serving excuse that he had not earlier
understood his right to counsel.” Op. at 26–27. Finally, the
majority relies significantly on the fact that Cook had been
arrested and presumably read his Miranda rights in the past.
Op. at 26. None of these reasons “could have led a
fairminded jurist to conclude that” Cook knowingly and
intelligently waived his constitutional rights pursuant to
Thompkins and its progeny. Sexton v. Beaudreaux, 138
S. Ct. 2555, 2559 (2018) (citing Richter, 562 U.S. at 102).
In turn, I will address each of the majority’s misguided
reasons for denying habeas relief.

    First, I disagree with the majority’s unsupported holding
that one-word verbal affirmations are sufficient, considering
the totality of other circumstances involved here, to establish
that a man with Cook’s acute intellectual disability and
                         COOK V. KERNAN                              45

mental illnesses had a “full awareness of both the nature of
the right being abandoned and the consequences of the
decision to abandon it.” Thompkins, 560 U.S. at 382–83
(quoting Burbine, 475 U.S. at 421).

     It is undisputed that Cook verbally responded “yeah” and
“uh-hum” when asked if he understood his Miranda rights
at the outset of the June 26 seven-hour interrogation, during
which he confessed to the Bettencourt murder and made
other incriminating statements about the Morris murder. At
best, this “establishes that a Miranda warning was given and
the accused made an uncoerced statement,” which “standing
alone, is insufficient to demonstrate ‘a valid waiver’ of
Miranda rights.” Thompkins, 560 U.S. at 384 (quoting
Miranda, 384 U.S. at 475). “The prosecution must make the
additional showing that the accused understood these
rights.” Id. (citations omitted). Here, there is overwhelming
evidence that Cook did not understand his rights due to his
serious intellectual disability and mental illnesses. In fact,
at the direction of the California Supreme Court, the trial
court found that Cook was intellectually disabled within the
meaning of Atkins v. Virginia, 536 U.S. 304 (2002), vacating
his death penalty and imposing a sentence of life without the
possibility of parole. 1 Although not determinative, the state
trial court’s finding that Cook was intellectually disabled
under Atkins creates a strong presumption that Cook was
unable to understand his Miranda rights, and thus unable to
knowingly and intelligently waive them. See United States

    1
      The Supreme Court explicitly reasoned in Atkins that intellectually
disabled defendants are ineligible for the death penalty, in large part,
because they are very susceptible to offering false confessions. See
536 U.S. at 320 (citing Everington & Fulero, Competence to Confess:
Measuring Understanding and Suggestibility of Defendants with Mental
Retardation, 37 Mental Retardation 212, 212–213, 535 (1999)).
46                   COOK V. KERNAN

v. Garibay, 143 F.3d 534, 538 (9th Cir. 1998) (holding that
defendant could not have knowingly and intelligently
waived his Miranda rights because his “IQ is borderline
retarded” and he was unable “to understand oral
instructions”).

   In order to reach the opposite outcome, the state habeas
court and the majority completely—and erroneously—
overlook the uncontroverted expert testimony of Dr. Woods
and Dr. Wilkinson that Cook is “dependent upon cues and
guidance from others to maintain a useful and functional
organization of information”, “readily incorporates cues,
prompting and direction from others,” and is vulnerable to
“suggestibility and confabulation.” This uncontradicted
expert testimony conclusively establishes that Cook was
unable to understand his constitutional rights, even if he
made statements to the contrary.

     The state trial court’s determination that Cook is
intellectually disabled was also supported by an
overwhelming wealth of expert testimony that expanded on
the depth and severity of Cook’s intellectual disability.
Before trial, Doctor William Lynch, a neuropsychologist,
testified that Cook’s “verbal and performance abilities fall[]
at the extreme low-end of the Average range,” that he suffers
from a developmental learning disability involving reading
and writing, and that he had a “narrow, precarious attention
span that can be interrupted easily.” As a result, Cook “often
fails to apprehend complete messages (words, phrases or
numbers)” and “is apt to have difficulty with understanding
complex spoken and written speech.” Doctor Myla Young,
a clinical psychologist, also testified that Cook’s mental
function was “Borderline to Low Average” and that, even
though his general IQ was a very low 83, his performance on
the part of the test that measures his ability to process new
                      COOK V. KERNAN                        47

information resulted in a below-average IQ of 78.
Accordingly, Dr. Young concluded that Cook had a
cognitive “level of performance . . . similar to that
demonstrated by most children with an age equivalence of
9.9 years old.” Similarly, Dr. George Wilkinson, who
evaluated Cook, concluded that Cook “had life-long
attentional and learning disabilities that reduced his
performance even below his measured intelligence level of
borderline to below average.” In other words, all these
experts agreed that Cook is intellectually disabled to such a
degree that it was impossible for him to understand his
constitutional rights, let alone waive them.

    Mental health experts who evaluated Cook also testified
that, in addition to his low IQ, Cook suffers from grave
mental illnesses that prevented him from understanding the
rights he was giving up. Doctor George Woods, a
psychiatrist, diagnosed Cook with an organic brain disorder
that causes him to dissociate and to fail to recall information
and details. He also diagnosed Cook with post-traumatic
stress disorder (“PTSD”) and depression. According to
Dr. Woods, Cook “readily incorporates cues, prompting and
direction from others” and is vulnerable to “suggestibility
and confabulation.” Therefore, Dr. Woods concluded that
Cook satisfies the diagnostic criteria for “mental retardation”
if you couple these mental illnesses with his borderline
intellectual functioning. Given Cook’s cognitive and mental
disabilities, Doctor Zakee Matthews, a clinical psychiatrist
who reviewed the video recording of Cook’s interrogation,
also opined that “it was extremely unlikely Mr. Cook could
have meaningfully understood the admonition regarding his
legal rights as expressed in the language and manner used by
the interrogating officers.”
48                    COOK V. KERNAN

    The government never offered expert testimony to
contradict the opinions of the mental health experts who
unanimously testified that Cook’s intellectual disabilities
and severe mental illnesses prevented him from
understanding the rights he was giving up. See Garibay,
143 F.3d at 538 (finding no valid Miranda waiver because
“[t]he government presented no evidence to contradict the
fact that [the defendant] . . . is borderline retarded with
extremely low verbal-English comprehension skills”).
Therefore, there is no expert evidence in the record to
support the state habeas court’s summary denial or the
majority’s holding, which rely on the disproven assumption
that Cook was intellectually competent to knowingly and
intelligently waive his rights. See United States v. Glover,
596 F.2d 857, 865 (9th Cir. 1979) (upholding Miranda
waiver because the court properly relied on the prosecution’s
expert’s testimony “that [the defendant] was competent to
waive his rights if they were explained to him in simple
language”).

    In light of Cook’s significant intellectual disabilities and
mental illnesses, the majority’s contention that Cook’s one-
word affirmations at the outset of the June 26 interrogation
were enough for the California Supreme Court to deny
habeas relief defies common sense and federal law clearly
established by the Supreme Court in Thompkins and its
progeny. Rather, any fairminded jurist faithfully applying
those controlling precedents in this case would conclude that
Cook was so intellectually disabled and mentally ill that he
was unable to knowingly and intelligently waive his
constitutional rights.

   Second, the majority’s contention that Cook provided
coherent answers to the investigators’ questions during the
June 26, 1992 interrogation is an unreasonable
                          COOK V. KERNAN                               49

determination of the facts. To the contrary, the transcript and
videotape of the interrogation show that Cook is obviously
confused and distressed, and his responses are unfocused
and hard to follow. At the outset of the interrogation, for
example, Cook stated that his birthday was September 25,
1971 (which would have made him twenty years old) and
that he was nineteen years old. When Inspector Sabin
explained the contradiction between his answers, Cook
responded with “. . . that’s what, what my mother told me,
so.” But, Cook stated, he “knew for a fact” he was going to
be “twenty this year.” He was wrong about his birthday and
his age. Cook also did not know addresses of where he had
lived for the past five or six months; gave multiple
contradictory statements about dates and durations; did not
know the day of the week or what month it was; and failed
to remember how he got to Oklahoma. All this occurred
within the first couple of minutes of the June 26
interrogation.    The district court therefore correctly
interpreted this colloquy—the first set of questions after
Cook was Mirandized—as one of the first “signs that Cook
was either seriously confused, or otherwise mentally
incompetent.”

     Later in the interrogation, at round 9:34 p.m., in response
to lengthy and suggestive questions by Inspector Sabin about
what Morris said or did to trigger the shooting, Cook began
to cry, stating, “No, I never do nothing to nobody, I try to be
everybody friend. I can’t work ‘cause I live on another part
[of town].” As Inspector Sabin persisted with questions
about the Morris shooting, Cook continued to cry
uncontrollably and to reiterate incessantly that he was afraid
to endanger his family. 2 It is in this highly rambling and

    2
      Cook made increasingly paranoid statements about his family
being in danger: “I’m in for it regardless if I say something or not, if I,
50                         COOK V. KERNAN

distressed mental state that Cook made the incriminating
admissions that he was in the car with Branner and Senegal
the night of the Morris murder, had a gun with him, and
“blanked out” after Morris approached the vehicle. No
reasonable jurist could read this transcript or view this
videotape and conclude that Cook was responding
“coherently.”

    Cook’s distress and confusion got worse. At around
11:13 p.m., Cook was sobbing loudly when he disclosed that
his father used to beat his mother in response to Inspector
Sabin’s question about why he went to see a therapist when
he was younger. From this point, Cook became increasingly
emotional and incoherent. Sabin and Eatmon offered him a
drink, which he declined, and unsuccessfully tried to loop
back to questioning about Morris. While still crying
uncontrollably, Cook continued to talk about his abusive
childhood while making distressed and nonsensical
statements, such as: “I don’t care, they can kill me, do
whatever they want, I don’t care no more,”; “I hope they kill
me or whatever, I don’t want to worry about waking up every
night, just thinking about got to help my mother, and I can’t
do nothing to stop it . . . let them kill me, I don’t care, I have
nothing to live for, nobody even care about me anyway so, I
mean, it’s better if I’m gone”; and “I don’t care what happens
to me, kill me, I’d be more of a big heavy burden.” At

if I tell you something, then put my family life in danger, I’d rather
something just happen to me;” “It shouldn’t really matter, whatever I say
now, you said I’m guilty, you got, you got all this stuff that I’m in it, so
. . . regardless of what I say, you know what I’m saying, it’s not going to
happen, you know what I’m saying, if you all plan on killing me or
whatever . . . well, I’m doing electric chair or 25 to life . . . it’s, it just
don’t matter now;” “And then, after I tell you all the truth, whatever it is,
who, you know what I’m saying, I got to face the consequences of what
happened to, what if somebody kill my father and them.”
                      COOK V. KERNAN                         51

around 11:38 p.m., the investigators decided to take a break
for Cook to calm down and escorted Cook back to his cell.
When the taped interview resumed at around 12:10 a.m.,
Inspector Sabin reminded Cook of his Miranda rights and
then began questioning him about the Bettencourt murder.
But the break did not work, because Cook quickly became
very distressed, confused, and incoherent. This is when
Cook abruptly confessed to the Bettencourt murder. Cook’s
distress and confusion during the lengthy interrogation
escalated to the point that by the end he was violently
coughing and vomiting.

    The mental health experts who evaluated Cook
confirmed that Cook was confused, distressed, and
incoherent during the June 26 interrogation. Coupled with
Cook’s intellectual disability and mental illnesses, these
experts unanimously concluded that it was impossible for
him to understand his Miranda rights, let alone to knowingly
and intelligently waive them. “[B]ased on signs of
Mr. Cook’s impaired cognition, distractibility[,] and
dissociative tendencies during clinical assessments, and
similar signs appearing in the videotape,” Dr. Matthews
testified that “it is evident that [Cook’s] limited abilities to
attend to or comprehend minimally complex language were
overwhelmed during the commencement of the interview.”
Dr. Wilkinson agreed that “the circumstances of the
interrogation, including Mr. Cook’s neuropsychological and
intellectual impairments and the effects of his trauma-based
symptoms, prevented him from knowingly and intelligently
understanding and waiving his right to remain silent.”

   Therefore, the majority’s contention that Cook was
“coherent” throughout most of the June 26 interrogation is
simply unfounded. Such an unreasonable determination of
the facts in the record could not justify the California
52                   COOK V. KERNAN

Supreme Court’s denial of relief here. Rather, a fairminded
jurist reviewing the transcript and videotape of the
interrogation—and the expert evaluation of those
materials—would find that Cook was distressed, confused,
and incoherent throughout most of the interview, especially
when he confessed to the Bettencourt murder and made other
incriminating statements about the Morris murder.

    Third, the majority argues that the California Supreme
Court could have reasonably found that Cook conveniently
pretended that he did not understand his rights the day after
the June 26 interrogation as “a self-serving excuse” to
backtrack his prior waiver. Op. at 26–27. This conclusion
is also an unreasonable determination of the facts under
AEDPA.

    The day after his June 26 interrogation—during which
he confessed and made other incriminating statements—
Cook explicitly stated that he did not understand his
Miranda rights, including the right to have an attorney
present during questioning. When the investigators again
read his rights before the second interview, Cook asked,
“when you all talk to me, I’m supposed to have an attorney
here or something?” The officers clarified that he had the
right to have an attorney present. This led to the following
exchange:

       Cook: Is that the only time you could have an
       attorney to be able, when you go to court?

       Inspector Sabin: You can have an attorney
       present any time during these [] proceedings.

       Cook: I didn’t know that.
                     COOK V. KERNAN                        53

       Inspector Sabin: Okay, well, do you
       remember me reading that off to you
       yesterday?

       Cook: Not really, but I remember you was
       reading something about my rights.

At this juncture, Cook asked to speak with his mother and
refused to continue talking until he had done so. Inspector
Sabin then asked him a series of questions trying to surmise
what Cook had understood to be his Miranda rights when he
appeared to waive them the day before. Cook reiterated that
he “didn’t know that . . . when you guys talked to me that I
could have a lawyer here.” Cook then proceeded to meet
privately with his mother, after which he refused to continue
speaking to the investigators until he had a chance to talk to
a lawyer.

    The only objectively reasonable interpretation of this
exchange—given his intellectual disability and mental
illnesses—is that Cook did not understand his Miranda
rights until he had a chance to talk to his mother, well after
he confessed to the Bettencourt murder and made other
incriminating statements the night before. The majority’s
skepticism of Cook’s motives in asking these questions is
unreasonable, especially considering the undisputed
evidence that he was intellectually disabled and suffered
from grave mental illnesses. If anything, no fairminded
jurist would disagree that these questions are further
evidence that Cook did not truly understand his
constitutional rights the night before.

   Finally, the majority proclaims that Cook understood his
Miranda rights because he “[he] has been arrested and
provided Miranda waivers on several occasions in the past.”
54                    COOK V. KERNAN

Op. at 26. But the record clearly supports a finding that
Cook did not understand his Miranda rights at the time of
his previous arrests, either. As an initial matter, those arrests
occurred when he was a minor. More importantly, when
Inspector Sabin asked him if he had read and understood his
Miranda rights when he was arrested in the past, Cook
explained that “[he] didn’t know . . . when [] people come to
question you, you can have a lawyer present with you.”
Therefore, these past experiences “do not indicate that
[Cook] was familiar with his Miranda rights and his option
to waive those rights” based on his prior experiences with
law enforcement. Garibay, 143 F.3d at 539 (citing Cooper
v. Griffin, 455 F.3d 1142. 1144–45 (5th Cir. 1972)). The
majority’s contention otherwise is an unreasonable
determination of the facts and thus cannot justify the
California Supreme Court’s denial of habeas relief.

    In sum, under AEDPA, it was both “an unreasonable
application of clearly established federal law, as determined
by the Supreme Court of the United States” in Thompkins
and its progeny, and “an unreasonable determination of the
facts,” for the state habeas court to summarily conclude that
Cook’s Miranda waiver was knowing and intelligent despite
the overwhelming evidence to the contrary. 28 U.S.C.
§§ 2254(d)(1), (d)(2). Indeed, “there was no reasonable
basis for the state court to deny relief,” or for the majority to
conclude—contrary to uncontroverted expert testimony—
that a defendant who is intellectually disabled and suffers
from serious mental illnesses, is interrogated for seven
hours, and shows visible physical signs of extreme distress
and confusion, knowingly and intelligently waived his
                          COOK V. KERNAN                              55

Miranda rights. Richter, 562 U.S. at 98. No reasonable
fairminded jurist would conclude otherwise. 3 Id. at 103.

    3. The admission of Cook’s unlawfully obtained
       confession and other incriminating statements
       was harmful.

    The conclusion that no reasonable jurist would have
found Cook’s Miranda waiver valid does not end our
inquiry. Cook is “not entitled to habeas relief based on trial
error unless [he] can establish that it resulted in actual
prejudice.” Ayala, 135 S. Ct. at 2197 (2015) (quoting
Brecht, 507 U.S. at 637). The California Supreme Court’s
summary order denying habeas relief also failed to explicitly
address whether Cook was prejudiced by the improper
admission of his unlawfully obtained confession to the
Bettencourt murder and other incriminating statements
about the Morris murder. Nonetheless, “relief is proper only
if the federal court has ‘grave doubt about whether a trial
error of federal law had substantial and injurious effect or
influence in determining the jury’s verdict.’” Id. at 2197–98
(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).

    A “defendant’s own confession is probably the most
probative and damaging evidence that can be admitted
against him.” Fulminante, 499 U.S. 279, 296 (1991) (citing
Bruton v. United States, 391 U.S. 123, 139–40 (1968)
(White, J., dissenting)). “Certainly, confessions have
profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if
told to do so.” Id. Therefore, in order to deny Cook’s claim

    3
       Because Cook’s Miranda waiver was not done knowingly and
intelligently, we do not need to reach the issue of whether his confession
was involuntary or coerced.
56                   COOK V. KERNAN

on the basis that there was no prejudice, the California
Supreme Court “must be able to declare” that the admission
of Cook’s confession and other incriminating statements
“was harmless beyond a reasonable doubt.” Id. at 295 (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). In other
words, “[t]he prejudice from [a defendant’s] confession
cannot be soft pedaled.” Anderson v. Terhune, 16 F.3d 781,
792 (9th Cir. 2008) (en banc).

    Here, the unconstitutional admission of Cook’s
confession to the Bettencourt murder and other
incriminating statements at trial was harmful in two distinct
ways: (1) the trial court relied on these admissions to
impermissibly hold a single joint trial for the unrelated
murders of Sadler, Bettencourt, and Morris, in violation of
Cook’s due process rights; and (2) the confession was central
to his conviction because the other evidence against him was
inconsistent and highly compromised. Therefore, I “think
that the [admission of Cook’s unlawfully obtained
confession to the Bettencourt murder and other
incriminating statements about the Morris murder]
substantially influenced the jury’s decision” and I have no
doubt that it had an injurious effect on the jury’s verdict.
O’Neal, 513 U.S. at 436; see also Poyson v. Ryan, 879 F.3d
875, 891–92 (9th Cir.) (as amended), cert. denied, 138 S. Ct.
2652 (2018).

       a. The admission of Cook’s confession and other
          incriminating statements resulted in the
          harmful consolidation of the three unrelated
          murders into a single trial.

    The unconstitutional admission of Cook’s unlawfully
obtained confession to the Bettencourt murder and other
incriminating statements led the trial court to impermissibly
consolidate the three unrelated murders of Bettencourt,
                      COOK V. KERNAN                        57

Morris, and Sadler into a single trial, which “resulted in
prejudice so great as to deny [Cook] of his Fifth Amendment
right to a fair trial.” United States v. Lane, 474 U.S. 438, n.
8 (1986); see also Bean v. Calderon, 163 F.3d 1073, 1084
(9th Cir. 1998) (“The simultaneous trial of more than one
offense must actually render petitioner’s state trial
fundamentally unfair and hence, violative of due process
before relief pursuant to 28 U.S.C. § 2254 would be
appropriate” (quoting Featherstone v. Estelle, 948 F.2d
1497, 1503 (9th Cir. 1991)); Davis v. Woodford, 384 F.3d
628, 638 (9th Cir. 2004) (modifications in original) (holding
that there is a prejudicial constitutional violation where the
“simultaneous trial of more than one offense . . . actually
render[ed] petitioner’s state trial fundamentally unfair and
hence, violative of due process.” (quoting Sandoval v.
Calderon, 241 F.3d 765, 771–72 (9th Cir. 2001)).

    Cook’s joint trial for the three unrelated murders of
Bettencourt, Morris, and Sadler was highly prejudicial
because it allowed evidence admissible as to only one of the
murder charges to impermissibly “spillover” to the other
murder charges. “We have recognized that the risk of undue
prejudice is particularly great whenever joinder of counts
allows evidence of other crimes to be introduced in a trial
where the evidence would otherwise be inadmissible.” See
Sandoval, 241 F.3d at 772 (citing United States v. Lewis,
787 F.2d 1318, 1322 (9th Cir.1986)); Davis, 384 F.3d
at 638–39 (finding no prejudice to the defendant when
evidence was cross-admissible); Fields v. Woodford,
309 F.3d 1095, 1109–10 (9th Cir. 2002) (same); United
States v. Johnson, 820 F.2d 1065, 1070–71 (9th Cir. 1987)
(same). For example, of the fifteen witnesses who testified
at trial, only two—Shawnte Early and Shannon Senegal—
allegedly witnessed more than one of the murders, and none
of them allegedly witnessed all three murders. People v.
58                    COOK V. KERNAN

Cook, 139 P.3d 492, 502 (Cal. 2006). Similarly, the
ballistics evidence for the Bettencourt and Morris murders
was introduced together, even though the San Mateo
Sheriff’s Department was unable to confirm that the casings
and bullets recovered from both crime scenes originated
from the same weapon. Id. at 502. Most importantly,
Cook’s highly prejudicial and unlawfully obtained
confession, and other incriminating statements, were
introduced at the joint trial for all three murders, even though
they only pertained to the Bettencourt and Morris murders,
respectively. None of these statements had anything to do
with the Sadler murder.

     On direct appeal, the California Supreme Court
nonetheless affirmed the trial court’s finding that
“substantial cross-admissibility” of evidence existed
between the Bettencourt and Morris murders because “those
victims were killed by multiple shots fired from the same
gun, which [D]efendant admitted was his.” Id. at 505
(emphases added). But, as discussed above, a San Mateo
County Sheriff’s criminalist testified that it was impossible
to link the casings recovered from the Morris and
Bettencourt murders to the same gun, especially because no
gun was ever recovered. Op. at 8. Cook, 139 P.3d at 502.
Therefore, in order to link the gun to both murders, the
prosecution had to rely on Cook’s incriminating statements
that “he had used his [nine]-millimeter handgun to shoot
Bettencourt and that on the day after the Morris shooting he
had thrown the gun off the Dumbarton Bridge.” Id. These
incriminating statements should not have been admitted into
evidence, however, because they were unlawfully obtained
after Cook’s invalid Miranda waiver. Therefore, the state
trial court had no legitimate justification or good cause to try
these otherwise unrelated murders together. Lane, 474 U.S.
at 446 n. 8 (“[M]isjoinder would rise to the level of a
                        COOK V. KERNAN                            59

constitutional violation only if it results in prejudice so great
as to deny a defendant his Fifth Amendment right to a fair
trial.”); Bean, 163 F.3d at 1084 (holding that defendant was
highly prejudiced by the improper joint trial of otherwise
unrelated crimes).

    Moreover, “there was no cross-admissibility between
[the Sadler] murder and the [Bettencourt and Morris
murders]” because Sadler was beaten rather than shot. 4
Cook, 139 P.3d at 505. Therefore, in order to affirm the trial
court’s denial of Cook’s motion to sever the trial for the
Sadler murder, the California Supreme Court, on direct
appeal, had to summarily conclude that the joinder of the
Sadler murder did not prejudice Cook because the
Bettencourt and Morris murders had already been properly
joined into a single trial. Id. But the Morris and Bettencourt
murders were improperly joined using Cook’s unlawfully
obtained confession and other incriminating statements, so
the additional joinder of the Sadler murder—for which there
was no cross-admissibility of evidence—was also improper
and highly prejudicial.

    The reason the consolidation of the three unrelated
murders into a single trial was harmful is that “the jury could
not ‘reasonably [have been] expected to compartmentalize
the evidence so that evidence of one crime [did] not taint the
jury’s consideration of another crime.’” Bean 163 F.3d
at 1084 (quoting Johnson, 820 F.2d at 1071); United States
v. Douglass, 780 F.2d 1472, 1479 (9th Cir. 1986) (same).
We have long observed that “[i]t is much more difficult for
jurors to compartmentalize damaging information about one

    4
      Shawnte Early identified Cook as the man who repeatedly shot
Bettancourt and who beat Sadler with a stick. Cook, 139 P.3d at 505–
06. However, she repudiated her pretrial statements on the stand. Id.
60                     COOK V. KERNAN

defendant derived from joined counts, than it is to
compartmentalize evidence against separate defendants
joined for trial.” Lewis, 787 F.2d at 1322. Indeed, studies
show that “joinder of counts tends to prejudice jurors’
perceptions of the defendant and of the strength of the
evidence on both sides of the case.” Id. Cook was entitled,
under the Fifth Amendment, to three separate trials precisely
to ensure that the jury in each of those trials was able to fairly
evaluate the evidence of each unrelated murder, and not be
prejudiced by their inability to compartmentalize the
cumulative evidence of the other two murders. See Bean,
163 F.3d at 1084 (“As the joinder of the [] charges did in fact
prejudice [the defendant’s] trial on the latter counts, we
conclude that [the defendant’s] due process rights were
violated.”).

     Indeed, the jurors in Cook’s case admit, in no uncertain
terms, that they were unable to compartmentalize the
evidence because their perception of it was tainted by
Cook’s unlawfully obtained confession to the Bettencourt
murder and his incriminating statements about the Morris
murder. One juror stated: “[Cook] admitted to one of the
killings, so it seemed likely that he had done the other two.”
Another confirmed that “[a]fter hearing from all of these
witnesses in the guilt phase, we heard Walter’s confessions
about his involvement in the crimes,” notably failing to
distinguish between the Bettencourt murder and the other
two murders. In order to find that the admission of Cook’s
confession and other incriminating statements was harmless,
the state habeas court would have had to unreasonably
ignore these deeply troubling statements from the jury.

   Accordingly, because the jury unfairly considered the
cumulative evidence against Cook—rather than
compartmentalizing the evidence for each unrelated
                     COOK V. KERNAN                        61

murder—no fairminded jurist would disagree that the trial
court’s use of Cook’s confession to consolidate the three
unrelated murders into a single trial had a “substantial and
injurious effect or influence in determining the jury’s
verdict.” Bean, 163 F.3d at 1086 (quoting Brecht, 507 U.S
at 637). This impermissible joinder, on its own, is sufficient
to establish prejudice for purposes of granting Cook habeas
relief.

       b. The admission of Cook’s confession and other
          incriminating statements was harmful
          because the other evidence against Cook was
          inconclusive or highly compromised.

     Even assuming the improper misjoinder of the three
unrelated murders into a single trial did not prejudice Cook,
the admission of his unlawfully obtained confession and
other incriminating statements was not “harmless error”
because the other evidence against Cook was most likely
insufficient for the jury to convict him. Fulminante,
499 U.S. at 297 (reversing conviction and ordering a new
trial because “[o]ur review of the record leads us to conclude
that the State has failed to meet its burden of establishing,
beyond a reasonable doubt, that the admission of
[defendant’s] confession [] was harmless error”); Martinez
v. Cate, 903 F.3d 982, 999 (9th Cir. 2018) (“[Defendant’s]
improperly-admitted statements were clear and damning;
they were the backbone of the State’s argument against self-
defense. Thus, we have grave doubts that their admission
did not affect the verdict.”); Anderson, 516 F.3d at 792 (9th
Cir. 2008) (holding that “the error was not harmless[,]”
because “[t]he confession was central to the conviction”
(citing Brecht, 507 U.S. at 623, and then citing Fulminante,
499 U.S. at 296)).
62                   COOK V. KERNAN

    I will explain in turn how the other evidence of Cook’s
guilt for each of the three murders was inconclusive and
highly compromised.

               i. The Sadler murder

    For the Sadler murder, most of the evidence was
inconclusive or highly compromised. For example, the three
bystanders who testified against Cook—Ernest Woodard,
Shawnte Early, and Velisha Sorooshian—admitted that they
were coerced and threatened by the police in exchange for
their testimony incriminating Cook. Their testimony was
also inconclusive. Woodard never testified that he saw Cook
beat Sadler to death with a stick. Cook, 139 P.3d at 500–01.
Early recanted at trial, testifying that she did not remember
making the statement accusing Cook, that the statement was
untrue, and that the police coerced her to make it. Similarly,
Sorooshian admitted at trial that she could not remember the
details of her interview with detectives because she “ha[d]
been on crack so long.”

     The only other testimony against Cook was that of
Shannon Senegal, who claims that Cook told him he beat up
Sadler the day after the murder. But Senegal’s testimony is
highly unreliable given that he was a suspect to the Morris
killing, which means he had a strong incentive to see Cook
take the blame for both crimes. Cook, 139 P.23d at 501. In
fact, Senegal’s charge as an accessory to the Morris murder
was dropped for a misdemeanor count of giving false
information to a peace officer in exchange for his statement
incriminating Cook in the Sadler murder.

    There was also substantial forensic and testimonial
evidence that Thomas Young and his cousin Kenny Young,
not Cook, killed Sadler. Frankly, given this evidence, it is
baffling that the detectives investigating the Sadler murder
                     COOK V. KERNAN                        63

failed to interview Thomas Young until May 2, 1994—over
two years after Sadler’s death, and sixteen days into Cook’s
trial. Detectives never interviewed Kenny Young. This
means that the jury was never presented with the available
evidence against all the credible suspects to the murder; they
were only presented with highly compromised evidence of
Cook’s alleged involvement.

    Considering these serious evidentiary pitfalls,
fairminded jurists would have to agree that the jury had to
rely on Cook’s improperly admitted confession and other
incriminating statements to convict Cook of the Sadler
murder.

               ii. The Bettencourt murder.

     Virtually every piece of evidence of the Bettencourt
murder is either inconclusive or highly compromised. For
example, Tamika Asburry, Shawnte Early, Teresa Beasley,
and Darnell Earby, who gave statements to the police
identifying Cook as Bettencourt’s shooter, later recanted at
trial, stating that their statements had been coerced and
reflected what the police wanted them to say. Nathan
Gardner and Keith Johnson also testified that they saw Cook
shoot Bettencourt.        However, their testimony was
inconclusive because both witnesses initially admitted they
could not definitely identify Cook as Bettencourt’s shooter,
even though they both later testified that they did see Cook
shoot Bettencourt. Importantly, Gardner and Johnson
received lenient plea deals in unrelated charges for violent
drug crimes as a result of their testimony against Cook.

    The other witness who accused Cook of shooting
Bettencourt was Sims, who was the only other suspect to the
murder. Sims admitted that he was also on the scene selling
crack, and he was kneeling inside the victim’s car (where he
64                    COOK V. KERNAN

allegedly dropped a crack rock) moments before the
shooting began. In fact, there is compelling ballistics
evidence suggesting that the first shot could only have come
from Sims’s location, and that because every shot came from
the same gun, there is at least some probability that Sims, not
Cook, shot Bettencourt.

     Moreover, although Sims testified on the stand that he
hoped to receive a lighter sentence for his multiple parole
and drug charges in exchange for his testimony against
Cook, he neglected to share with defense counsel and the
jury that he had already received a very generous deal. In
fact, Inspector Sabin wrote to the Board of Prisons to ensure
that Sims was released on his own recognizance from a
prison sentence for parole violations on two occasions—July
1992 and May 1993. After Sims violated the terms of his
supervised release a third time, his probation officer,
Timothy Gatto, had to write to the San Mateo Superior Court
seeking a bench warrant, describing Sims as “clearly out of
control” and noting that “his veracity is questionable in all
matters.” Ultimately Sims secured a two-year get-out-of-
jail-free pass for his multiple parole violations and drug
offenses in exchange for his testimony incriminating Cook.
It is thus extremely problematic that the prosecution only
turned over Sabin’s letters to the Board of Prisons after
Sims’ trial testimony, and never turned over Gatto’s letter.
Had the prosecution turned over this key evidence showing
that Sims received special treatment in exchange for his
testimony against Cook, there is a reasonable probability that
the jury would have concluded that Sims seriously lacked
credibility. But the opposite happened. One of the jurors
explained that “there was one guy in particular we really
liked, a young man named Jap [Sims’s nickname],” who
“wanted to help the police with the case because he was
trying to turn his life around.”
                         COOK V. KERNAN                             65

    Therefore, the district court correctly found that the
witness statements identifying Cook as the Bettencourt
shooter were “compromised,” either due to alleged police
misconduct in feeding details or threatening the witnesses,
or because the witness was also a suspect and thus had a
motive to fabricate. Without the confession to the
Bettencourt murder, it is highly likely that the jury would
have viewed this evidence in a substantially less prejudicial
way.

                 iii. The Morris murder.

    The evidence for the Morris murder is even more
problematic. Two of the witnesses who testified that they
saw Cook shoot Morris—Lavert Branner and Shannon
Senegal—were themselves suspects and granted leniency by
the prosecution for testifying against Cook. 5 Furthermore,
there was strong forensic and testimonial evidence that
Branner or Senegal killed Morris, including testimony from
Monique Barrett, Lakishain Smith, and Tasha Bradford.

    In sum, the evidence against Cook for the Sadler,
Bettencourt, and Morris murders was so lacking that there is
“more than a ‘reasonable possibility’ that” the admission of
Cook’s confession to the Bettencourt murder and other
incriminating statements about the Morris murder was
“harmful” under Brecht. Ayala, 135 S. Ct. at 2198 (quoting
507 U.S. at 637). The prosecution’s case for all three
murders was otherwise flimsy and weak. In fact, without
Cook’s unlawfully obtained confession and other

    5
       It is highly problematic that the police waited over a year to
interview Branner and Senegal about the Morris killing given that they
were both natural suspects. The police spoke with Branner for the first
time in November 1993, and with Senegal in March 1994.
66                       COOK V. KERNAN

incriminating statements, the remaining evidence consists of
recanted, coerced, or otherwise compromised testimony, and
inconclusive ballistics evidence. Therefore, “absent the
confessions, it is unlikely that [Cook] would have been
prosecuted at all, because the physical evidence from the
scene and other circumstantial evidence would have been
insufficient to convict.” Fulminante, 499 U.S. at 297.

    Furthermore, because the trial court admitted the
unlawfully obtained confession and other incriminating
statements, Cook’s defense counsel was forced to
acknowledge that Cook shot Bettencourt, focusing their
efforts instead on establishing that Bettencourt’s killing was
at most second-degree murder because Cook had been
drinking heavily. Cook, 139 P.3d at 502. In other words,
had the confession and statements not been admissible, the
defense would not have had to acknowledge that Cook shot
Bettencourt. It is thus highly likely that Cook’s defense
counsel would have attempted to convince the jury that Cook
did not shoot Bettencourt, especially because the
prosecution’s case was otherwise unconvincing.

    Cook’s wrongfully admitted confession and other
incriminating statements were highly prejudicial. 6 In
Fulminante, the Supreme Court warned us, in no uncertain
terms, that we must “exercise extreme caution before
determining that the admission of a confession at trial was
harmless,” because confessions “may tempt the jury to rely
upon that evidence alone in reaching its decision.” 499 U.S.
at 296. Here, the inconclusive and highly compromised

     6
       Judge Callahan filed a concurrence, in which Judge Smith did not
join, arguing that “the state habeas court could have reasonably denied
Cook’s claim on the basis that the admission of his confession did not
prejudice him at trial.”
                     COOK V. KERNAN                       67

evidence in the record, coupled with the deeply troubling
post-trial statements of the jurors, give me—and should give
this Court—“grave doubt about whether [the impermissible
admission of Cook’s unlawfully obtained confession and
other admissions] had a substantial and injurious effect or
influence in determining the jury’s verdict.” Ayala, 135
S. Ct. at 2197–98 (quoting O’Neal, 513 U.S. at 436).

   4. Conclusion

   Cook is entitled to habeas relief because the California
Supreme Court’s summary ruling that he intelligently and
knowingly waived his Miranda rights involved an
unreasonable determination of the facts and an unreasonable
application of clearly established federal law, given that he
was not—indeed he could not be—“full[y] aware[] of both
the nature of the right being abandoned and the
consequences of the decision to abandon it.” Thompkins,
560 U.S. at 384 (quoting Burbine, 475 U.S. at 421).

    Furthermore, the record clearly shows that the admission
of Cook’s unlawfully obtained confession to the Bettencourt
murder and incriminating statements about the Morris
murder were harmful. First, the admission of these
unlawfully obtained incriminating statements resulted in a
fundamentally unfair joint trial of the three unrelated
murders of Sadler, Bettencourt, and Morris, during which
the jury failed to compartmentalize the evidence for each
crime, violating Cook’s due process rights. Second, the
record highlights that the prosecution’s other evidence of
Cook’s guilt was inconclusive or highly compromised,
which led the jury to rely heavily on Cook’s unlawfully
obtained incriminating statements to convict him.

   Accordingly, I respectfully dissent.
