                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 26 2015
JAMAAL JOHNSON,                                  No. 14-15339           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Petitioner - Appellant,            D.C. No. 3:10-cv-00610-RCJ-VPC

 v.
                                                 MEMORANDUM*
ADAM PAUL LAXALT,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted July 7, 2015
                            San Francisco, California

Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.

      Petitioner Jamaal Johnson appeals the district court’s denial of habeas relief

under 28 U.S.C. § 2254. Reviewing de novo, Clabourne v. Ryan, 745 F.3d 362,

370 (9th Cir. 2014), we affirm.


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
      1. The district court correctly denied habeas relief on Petitioner’s claims

alleging a violation of Brady v. Maryland, 373 U.S. 83 (1963). The Supreme

Court of Nevada reasonably concluded that, even assuming that the prosecution

wrongfully withheld impeachment evidence concerning witnesses DeMarco Parker

and Monique Morris, there was no "reasonable probability" that disclosure of the

information would, collectively or individually, have made a difference to the

outcome of Petitioner’s trial. Smith v. Cain, 132 S. Ct. 627, 630 (2012). Petitioner

confessed to the crime; Parker testified on both direct and cross-examination about

his criminal history and his desire to obtain leniency from both prosecutors by

testifying against Petitioner; and Morris’ testimony had little importance. The

additional evidence had no likelihood of changing the trial outcome.

      Petitioner contends that the prosecution continues to withhold five further

items of alleged Brady material. We are troubled by the State’s position that it

does not have access to those materials. The prosecution bears an obligation under

Brady to turn over all favorable materials within its actual or constructive

possession. Strickler v. Greene, 527 U.S. 263, 275 n.12 (1999). Despite that

unsettling fact, Petitioner must "first establish[] a basis for his claim that [the

sought-after documents] contain[] material evidence." Pennsylvania v. Ritchie,

480 U.S. 39, 58 n.15 (1987). Petitioner has failed to meet that burden, for the same


                                            2
reasons stated above: Given his confession, the impeachment of Parker that

occurred, and the insignificance of Morris’ testimony, the documents that

Petitioner now seeks do not raise the specter of a different outcome, had they been

disclosed.

      2. The district court correctly denied habeas relief on Petitioner’s claims

alleging a violation of Miranda v. Arizona, 384 U.S. 436 (1966). Petitioner

confessed after waiving his Miranda rights in an audio-recorded interview

conducted by Detective Hardy. Petitioner contends that (a) his confession was

coached and coerced; (b) his confession was the product of an impermissible two-

step "question first and warn later" interrogation strategy, Missouri v. Seibert, 542

U.S. 600, 611 (2004); and (c) his waiver of rights was not knowing and voluntary

because he understood his waiver to apply only to an unrelated stolen-car

investigation for which he had been arrested.

      In rejecting Petitioner’s first two arguments, the Supreme Court of Nevada

found that no interrogation took place before the recording began. To the contrary,

the record plainly demonstrates that a pre-interview took place, and the Supreme

Court of Nevada’s contrary conclusion rests on impermissible speculation, given

that the trial court never addressed this claim. We conclude that its determination

of the facts was "unreasonable." 28 U.S.C. § 2254(d)(2). Accordingly, we review


                                          3
de novo Petitioner’s first two Miranda-based claims. Frantz v. Hazey, 533 F.3d

724, 735–37 (9th Cir. 2008) (en banc).

      On de novo review, Petitioner’s claims fail. Petitioner has not pointed to

sufficient evidence in the record that Detective Hardy made inappropriate promises

to Petitioner or otherwise coached and coerced him into confessing. Similarly, the

record does not establish the facts needed for success on a claim under Seibert,

because nothing in the record establishes that Petitioner made inculpatory

statements during the pre-interview. Because Petitioner failed to request an

evidentiary hearing on these claims—before the state courts, the district court, or

this court in his opening brief—we will not remand for an evidentiary hearing.

See, e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011) ("Although state

prisoners may sometimes submit new evidence in federal court, AEDPA’s

statutory scheme is designed to strongly discourage them from doing so.").

      Finally, the Supreme Court of Nevada reasonably concluded that Petitioner’s

waiver of Miranda rights was knowing and voluntary. During the recorded

interview, Petitioner asked Detective Hardy if the waiver pertained to "this case

right here." Detective Hardy’s rambling answer that he did not know anything

about the unrelated stolen-car investigation was ambiguous. It reasonably could be

read as limiting the Miranda waiver to the stolen-car investigation, and it


                                          4
reasonably could be read as limiting the Miranda waiver to the homicide

investigation. The Supreme Court of Nevada concluded that Petitioner understood

that the waiver applied to the homicide investigation. We will not disturb the state

court’s choice among reasonable interpretations.

      AFFIRMED.




                                          5
                                                                          FILED
                                                                           AUG 26 2015
Johnson v. Laxalt, No. 14-15339
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
FRIEDMAN, District Judge, concurring in part and dissenting in part:

      I agree that Petitioner Johnson loses on two of his three Miranda claims —

that his confession was coached and coerced and that it was the product of a two-

step “question first and warn later” interrogation strategy. I respectfully disagree,

however, that it was reasonable for the Supreme Court of Nevada to find that

Johnson’s waiver of his Miranda rights was knowing and intelligent. I therefore

would reverse the district court’s denial of Johnson’s habeas corpus petition, and

remand with instructions that the writ issue.

      Johnson was arrested and taken into custody for possession of a stolen

vehicle and drug possession. He then was brought to the Homicide Office by the

arresting officers, who had received notice that Johnson was wanted for

questioning about a burglary and two murders. Johnson read the warnings he was

provided as printed on a “Rights of Persons Arrested” card, and he signed the card

to indicate his understanding of them. Within the first few minutes of the audio-

recorded interrogation, Homicide Detective Hardy asked Johnson to confirm that,

prior to the start of the interview, Johnson had read and signed the card, indicating

his understanding of his rights. Johnson responded “Yeah.” But then Johnson

asked whether “that’s pertaining to this case right here.” Detective Hardy

answered “No”; “you being under arrest has to do with whatever those other
officers brought you here for . . . you’re not under arrest for anything on the

homicide . . . .”

       The Supreme Court of Nevada concluded that “the recorded statement

clearly demonstrates Johnson’s knowledge that the police were investigating the

two murders, . . . that the Miranda warnings applied to any statements [Johnson

made] concerning them,” and that Johnson fully understood this. It is true that

Johnson knew the police were investigating the murders, but the record cannot

support the conclusion that Johnson understood that the Miranda warnings applied

to his interrogation about the homicides. The Supreme Court of Nevada’s

determination that Johnson comprehended the nature of his rights and the

consequences of his abandonment of those rights — being charged with murder

based on his own statements — ignores crucial evidence in the record and it

therefore does not bar Johnson’s claim for habeas relief. See 28 U.S.C.

§ 2254(d)(2); Milke v. Ryan, 711 F.3d 998, 1010 (9th Cir. 2013); Taylor v.

Maddox, 366 F.3d 992, 1008 (9th Cir. 2004).

       The full exchange between Detective Hardy and Johnson reads as follows:

       Detective Hardy: Okay, um, date and time of this interview is gonna be,

                          um, 12/16/01 at 2300 hours. Location of the interview is

                          the Homicide Office. Persons present during this

                          interview are Jamaal Johnson, Det. Sherwood, and


                                          2
                  myself, Det. Hardy. Um, Jamaal, you understand this

                  statement’s being tape recorded?

Jamaal Johnson:   Yeah.

Detective Hardy: Okay, and you understand that, uh, we’re gonna ask you

                  questions in reference to a double homicide that occurred

                  on Jackson Street, um, more specifically 205 Jackson,

                  apartment number one and it occurred on September

                  26th, where two individuals were killed, um, you

                  understand that that’s what we’re talking to you about?

Jamaal Johnson:   Yeah.

Detective Hardy: Okay, and that you, uh, also understand that you are

                  under arrest for some other charges tonight, um,

                  something to do with a vehicle, whatever they stopped

                  you for.

Jamaal Johnson:   I don’t know shit about that car though.

Detective Hardy: Okay, but, um, as far as what, what you’re under arrest

                  for, you’re not under arrest anything [sic] to do with this

                  case, do you understand that?

Jamaal Johnson:   Okay.

Detective Hardy: Is that right?


                                  3
Jamaal Johnson:    Yeah.

Detective Hardy: Okay, I mean as far as the double homicide, we haven’t

                   placed you under arrest, we’re not gonna place you under

                   arrest tonight for anything involving this homicide case.

                   We’re here to get your side of the story as to what

                   happened.

Jamaal Johnson:    All right.

Detective Hardy: Do you understand that?

Jamaal Johnson:    Yeah.

Detective Hardy: Okay, and, uh, with that, um, prior to us starting this

                   interview, you had read a Rights of Persons Arrested card

                   and you understand those rights, is that correct?

Jamaal Johnson:    Yeah.

Detective Hardy: Is there anything that you don’t understand about those?

Jamaal Johnson:    No, not really.

Detective Hardy: You’ve been shown those rights before.

Jamaal Johnson:    I mean . . . yeah.

Detective Hardy: On other cases, right?

Jamaal Johnson:    Yeah.




                                     4
      Detective Hardy: Okay and you signed that card saying you understand

                         those rights.

      Jamaal Johnson: Yeah and that’s, that’s pertaining to this case right

                         here?

      Detective Hardy: No.

      Jamaal Johnson:    Or . . .

      Detective Hardy: The, the, you being under arrest has to do with

                         whatever those other officers brought you here for.

      Jamaal Johnson: Oh, okay.

      Detective Hardy: Okay, whatever, whatever that whole incident was, I

                         don’t even know where it is [sic].

      Jamaal Johnson:    Oh, okay.

      Detective Hardy: You understand that?

      Jamaal Johnson:    Yeah.

      Detective Hardy: Okay, but you’re not under arrest for anything on the

                         homicide, okay?

      Jamaal Johnson:    All right.

Detective Hardy then launched into substantive questioning of Johnson about his

participation in the burglary and homicides.




                                         5
      My reading of the complete transcript of this exchange makes clear to me

that by asking Hardy about “this case right here,” Johnson was referring to the

homicide case rather than the stolen vehicle case. Just seconds earlier, Detective

Hardy had explained to Johnson that “as far as what, what you’re under arrest for,

you’re not under arrest anything [sic] to do with this case, do you understand

that?” Hardy then stated to Johnson that, “as far as the double homicide, we

haven’t placed you under arrest, we’re not gonna place you under arrest tonight for

anything involving this homicide case.” When Johnson then asked Detective

Hardy to clarify whether the Miranda warnings he had read “pertain[ed]” to

questioning about “this case,” Hardy answered “No.” And Hardy did not retract or

correct his statement to Johnson. Detective Hardy’s comments following his “No”

response, if anything, reinforced the idea that the Miranda warnings, written on a

“Rights of Persons Arrested” card, had no connection to the crimes for which

Johnson had not been arrested and about which he was soon to be questioned —

the homicides.

      With respect, the words in the transcript simply cannot be reconciled with

the Supreme Court of Nevada’s determination that “the recorded statement clearly

demonstrates Johnson’s knowledge . . . that the Miranda warnings applied to any

statements concerning [the homicides],” or its finding that any confusion was

“cleared up” by Detective Hardy. And if Johnson did not understand that the rights


                                         6
he had read — and the rights card he had signed — pertained to the homicide case,

then he did not know his statement could be used against him in a criminal

prosecution for murder. His decision to talk therefore was not made with “a full

awareness of both 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) (court

may find Miranda rights validly waived only if circumstances reveal “both an

uncoerced choice and the requisite level of comprehension”); see Berghuis v.

Thompkins, 560 U.S. 370, 384 (2010) (state must not only show that warning was

given and statement was uncoerced; it must also “make the additional showing that

the accused understood these rights”).

      “The courts must presume that a defendant did not waive his rights,” North

Carolina v. Butler, 441 U.S. 369, 373 (1979), and the prosecution shoulders the

heavy burden of proving that a defendant’s waiver was knowing and intelligent,

Thompkins, 560 U.S. at 383-84; Miranda v. Arizona, 384 U.S. 436, 475 (1966).

Johnson’s question to Hardy demonstrates that Johnson did not understand the

pertinence of the Miranda warnings to the homicide interrogation, and Hardy’s

response did not resolve Johnson’s lack of comprehension. In my view, the State

failed to carry its burden to prove that Johnson’s confession was the result of a

knowing and intelligent waiver of his privilege against self-incrimination and his




                                          7
right to counsel. The Supreme Court of Nevada’s decision to the contrary was not

just incorrect; it was unreasonable.

         The admission of Johnson’s recorded confession at trial therefore was error,

so “the question is whether the erroneously admitted evidence had a ‘substantial

and injurious effect or influence in determining the jury’s verdict.’” Ghent v.

Woodford, 279 F.3d 1121, 1127 (9th Cir. 2002) (quoting Brecht v. Abrahamson,

507 U.S. 619, 637 (1993)). In this case, how could it not? There was no physical

evidence linking Johnson to the burglary and the homicides. Apart from Johnson’s

confession, the most probative inculpatory evidence was the testimony of DeMarco

Parker, who participated in the crimes and who stated that Johnson was a co-

participant, and who had, at the time of his testimony, already pleaded guilty in

federal court and was awaiting sentencing. While Parker’s testimony was

significant, Johnson’s recorded confession unquestionably “had a substantial and

injurious effect or influence in determining the jury’s verdict.” Ghent, 279 F.3d at

1127. In my view, then, a writ of habeas corpus should issue, and at any new trial

the State would not be able to rely on Johnson’s recorded statement in its case in

chief.

         With that said, given the majority’s disposition of Johnson’s Miranda

claims, I agree that Johnson’s claims under Brady v. Maryland do not provide any

grounds for relief. But like my colleagues, I am troubled by the State’s insistence


                                           8
that it cannot access materials from the federal court case — a case that stemmed

from a joint task force investigation and in which a State prosecutor was deputized

as a Special Assistant United States Attorney.




                                         9
