                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT LEE SMITH,                                No. 11-56658

              Petitioner - Appellant,            D.C. No. 5:07-cv-00908-JSL-FFM

  v.
                                                 MEMORANDUM*
STUART SHERMAN,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted July 9, 2014
                              Pasadena, California

Before: BERZON and CLIFTON, Circuit Judges, and ROSENTHAL, District
Judge.**

       Robert Lee Smith appeals the district court’s order denying his petition for a

writ of habeas corpus challenging his California convictions for first-degree murder

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
and for using a firearm in the commission of a felony. A jury convicted Smith under

California Penal Code §§ 187 and 12022.5 for shooting and killing a convenience-

store owner while he and two accomplices robbed the store. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a). We affirm.

      Our review of Smith’s claims is highly deferential. Under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”) of 1996, a federal court cannot grant the

habeas relief Smith seeks unless he shows that the state court’s last reasoned

adjudication of his federal claims resulted in a decision that (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d); Harrington v. Richter, ––– U.S. ––––, 131

S. Ct. 770, 785 (2011).

      Smith contends that the state trial court violated his federal constitutional rights

by admitting into evidence two recordings. The first was of the confession Smith

gave, months after the robbery and shooting, during an interview by a police detective.

The second was of an inculpatory conversation Smith had later that day with his two

accomplices after they were all arrested and sitting together in a police car.




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        The state trial court did exclude inculpatory statements Smith made to the

detective before the Miranda warnings. Those statements placed Smith at the store

with a gun in his hand, but not the gun that shot the owner. During this part of the

interview, Smith denied that he was the shooter. Approximately thirty minutes after

the interview started, the police detective gave Smith Miranda warnings and

continued the interview. Smith then confessed that he and an accomplice robbed the

store at gunpoint while a third accomplice waited in a car, and that it was Smith who

shot and killed the store owner during the armed robbery.

       The trial court admitted the full confession that Smith made during the

interview after he was Mirandized. Smith contends that admitting the post-Miranda

statements violated Missouri v. Seibert, 542 U.S. 600 (2004). He also contends that

the Miranda violation made the conversation that took place hours later, after his

arrest, when he was placed in the police car with his two accomplices, inadmissible

under the fruit-of-the-poisonous tree doctrine set out in Wong Sun v. United States,

371 U.S. 471, 483–87 (1963).

       The state habeas courts summarily denied Smith’s collateral challenge. The

federal district court also denied relief. The district court held that admitting the post-

Miranda part of Smith’s confession to the police was improper under Missouri v.

Seibert, but that Smith’s statements to his accomplices in the police car were


                                            3
admissible. The district court concluded that these statements, in light of the other

inculpatory evidence presented at trial—including recorded, pretextual telephone calls

an informant placed to Smith ten days before the interview, during which Smith made

statements indicating that he no longer had the gun used in the killing—were

sufficiently inculpatory that Smith could not show prejudice from the erroneous

admission of his post-Miranda statements to the police detective.

      We agree that any error was harmless. There is no basis to find that the state-

court decision denying relief was contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme Court. Even if the

admission of the prior post-Miranda confession was error, there is no Supreme Court

case holding that the fruit-of-the-poisonous-tree doctrine applies to statements

obtained from such Miranda violations. In Oregon v. Elstad, 470 U.S. 298, 306–09

(1985), the Court emphasized that because Miranda’s protections “sweep[] more

broadly than the Fifth Amendment itself,” a Miranda violation may not amount to a

constitutional violation requiring suppression of its “fruits” under Wong Sun. See also

United States v. Patane, 542 U.S. 630, 643–44 (2004) (holding that the exclusionary

rule does not apply to the physical fruits of Miranda violations). Smith has not

pointed to any circuit court decision, let alone a Supreme Court decision, holding that

the fruit-of-the-poisonous-tree doctrine applies to require excluding the type of


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statements he made to his accomplices in the police car. This court cannot conclude

that the state court was unreasonable in denying relief based on the trial court’s

admission of those statements during the trial.

      In light of Smith’s statements in the police car, combined with the other

evidence in the case, Smith has not established that admitting his post-Miranda

confession “likely had a substantial and injurious impact on the verdict.” Sims v.

Brown, 425 F.3d 560, 570 (9th Cir. 2005) (quoting Taylor v. Maddox, 366 F.3d 992,

1016 (9th Cir. 2004) (explaining the harmless error standard of review for confessions

erroneously admitted at trial); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In

the conversation with his accomplices in the police car, Smith talked about having

“smoked” a person during the robbery and repeatedly said that he had confessed to

being the one who “did the busting.” The other evidence included witness testimony

that Smith had bragged at a party about committing the robbery and shooting the

owner. The evidence also included the recordings of pretextual telephone calls in

which Smith made incriminating statements about having and then discarding the

murder weapon. The jury heard from witnesses who were near the store when the

robbery and shooting occurred. Their testimony was consistent with the incriminating

statements Smith made in the police car. Because of Smith’s additional, recorded,

specific admissions to having committed the crime, as well as other, consistent


                                          5
evidence, there is no reasonable basis to conclude that the verdict would have been

different had the post-Miranda confession to the police detective been excluded.

      AFFIRMED.




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