FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ALAN BRADFORD,

Petitioner-Appellant/

Cross-Appellee,

v.

RON DAVIS, Warden, California 

State Prison at San Quentin,

Respondent-Appellee/

Cross-Appellant.

Nos. 15-99018

15-99019

D.C. No.

2:97-cv-06221-

TJH

OPINION

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted February 28, 2019

Pasadena, California

Filed May 3, 2019

Before: MILAN D. SMITH, JR., PAUL J. WATFORD, 

and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 BRADFORD V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of habeas 

relief as to one of Mark Alan Bradford’s claims regarding 

his conviction, reversed the district court’s proceduraldefault holding as to two claims regarding his conviction, 

remanded for the district court to consider whether Bradford 

established prejudice as to those two claims, and on the State 

of California’s cross appeal, reversed the district court’s 

grant of a conditional writ of habeas corpus as to Bradford’s 

death sentence.

The panel held that California’s timeliness rule for 

habeas petitions – pursuant to which the California Supreme 

Court denied as untimely Bradford’s claims for prosecutorial 

misconduct for suppression of toxicology test results 

(Claim 4), prosecutorial misconduct for suppression of notes 

from witness interviews conducted by police (Claim 6), and 

ineffective assistance of counsel for failure to present a 

mental state defense of intoxication (Claim 8) – was 

adequate when Bradford filed his state habeas petition on 

January 6, 2000. In so holding, the panel rejected Bradford’s 

contention that the adequacy of the timeliness rule should be 

analyzed as of June 3, 1996, the date upon which his claims 

fell outside the 90-day timeliness presumption. The panel 

wrote that this conclusion is not altered because Bradford did 

not file a state habeas petition until after filing his federal 

petition, and that, in order to obtain federal habeas review, 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BRADFORD V. DAVIS 3

Bradford must establish cause and prejudice to overcome his 

procedural default.

The panel held that Bradford established cause to excuse 

his default due to the confluence of several factors, including 

actions by his counsel that constituted abandonment. 

Applying Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), the 

panel held that the California Supreme Court’s conclusory 

denial of Bradford’s claims on the merits does not preclude 

the district court from conducting the prejudice inquiry. The 

panel held that Bradford cannot establish prejudice for Claim 

6 because the statements contained in the undisclosed 

interview notes were cumulative of evidence admitted at 

trial, such that the panel could not say that there is a 

reasonable probability that the trial result would have

differed had the notes been disclosed. The panel remanded 

Claims 4 and 8 for the district court to conduct the prejudice 

inquiry in the first instance.

On the government’s cross appeal from the district 

court’s grant of a conditional writ as to the death sentence, 

the panel held that the California Supreme Court’s 

conclusions regarding the voluntariness and admissibility of 

Bradford’s four post-arrest statements were not contrary to, 

nor an unreasonable application of, federal law.
4 BRADFORD V. DAVIS

COUNSEL

Patricia A. Young (argued), John L. Littrell, and Margo A. 

Rocconi, Deputy Public Defenders; Hilary Potashner, 

Federal Public Defender; Office of the Federal Public 

Defender, Los Angeles, California; for Petitioner-Appellant.

Xiomara Costello (argued), David E. Madeo, and A. Scott 

Hayward, Deputy Attorneys General; Steven D. Matthews

and James William Bilderback II, Supervising Deputy 

Attorneys General; Lance E. Winters, Senior Assistant 

Attorney General; Gerald A. Engler, Chief Assistant 

Attorney General; Xavier Becerra, Attorney General; Office 

of the Attorney General, Los Angeles, California; for 

Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Mark Alan Bradford was convicted of first-degree 

murder, first-degree robbery, rape, and sodomy in 

connection with the 1988 killing of Lynea Kokes. After a 

jury found that he killed Kokes to prevent her from testifying 

against him—a special circumstance permitting capital 

punishment—Bradford received a death sentence. Bradford 

filed a petition for a writ of habeas corpus in the district 

court, which denied relief as to the conviction but 

conditionally granted relief as to his death sentence absent a 

new special circumstance trial. He appeals the district 

court’s limited grant of habeas relief, and the State of 

California cross appeals the grant of habeas relief. Bradford 

also claims that the district court erred in finding some of his 

claims procedurally barred.
BRADFORD V. DAVIS 5

Because we find that the California Supreme Court did 

not unreasonably apply clearly established federal law and 

that its holdings were not contrary to federal law, we vacate 

the district court’s grant of habeas relief. But we also hold 

that Bradford has shown cause to overcome the procedural 

default of his claims for ineffective assistance of counsel and 

prosecutorial misconduct for the suppression of his 

toxicology test results, and remand for the district court to 

consider whether Bradford has established prejudice as to 

either claim. Finally, we decline to expand the certificate of 

appealability to include Bradford’s uncertified claims.

BACKGROUND

I. Factual Background

A. Murder of Lynea Kokes

On the morning of April 18, 1988, Mark Bradford and 

his then-roommate Randall Beerman began playing cards 

and drinking alcohol in their apartment at Panorama City 

Lodge (the Lodge) in California. Bradford consumed a 

quart-and-a-half of Black Velvet Whiskey and a six-pack of 

beer. Around 3:30 pm, the Lodge’s assistant manager, 

Joseph Stevens, spoke to Bradford. Stevens told Bradford to 

vacate his apartment because his rent was overdue; he also 

accused him of breaking into the Lodge’s office.

That afternoon, Bradford helped Lynea Kokes (Kokes), 

a new manager for the Lodge, move into her apartment. 

Sometime after 5 p.m., Bradford called an ex-girlfriend, who 

said that he could stay with her in Fresno, California. 

Bradford told Beerman around 6 p.m. that he had been 

accused of breaking into the Lodge’s office and had to leave.
6 BRADFORD V. DAVIS

At some point, Bradford vomited in the apartment 

bathroom and cleaned it up with towels. While Bradford 

cleaned the towels in the laundry room, Beerman saw a knife 

handle on the bathroom floor. That evening, Beerman went 

to the laundry room to put the towels in the dryer and saw a 

bent knife blade.

Sometime after 8 p.m., Alexander Kokes entered his 

apartment and found his wife’s body. Police and paramedics 

called to the complex pronounced Kokes dead. Beerman 

later spoke with detectives and showed them the knife blade 

in the laundry room. He then let police into his apartment, 

where they arrested Bradford. The police searched Bradford 

and found a wooden knife handle, caked with a dried red 

liquid. Detectives also found a suitcase containing Kokes’s 

wallet and other items, and a duffel bag containing redstained clothing in Bradford’s room. Shortly after his arrest, 

Bradford’s blood was drawn for toxicology testing.

Forensic evidence indicated that Kokes died from a 

combination of strangulation and stab wounds. She had also 

been raped and sodomized. Bradford’s fingerprint was 

found in Kokes’s apartment, and the blood on Bradford’s 

clothing tested positive for the presence of blood consistent 

with Kokes’s.

B. Bradford’s Statements to the Police

Bradford was driven to the police station and made four 

statements over the course of the next day-and-a-half. The 

first statement, to Detectives Riehl and Arnold, was made at 

around 5 a.m. on April 19, 1988. Around 7 a.m., while being 

booked, Bradford made another statement to station officers. 

The third statement was made to Detective Hooks at 

9:30 a.m. Just over twenty-four hours later, Bradford asked 

to speak with detectives, and made the fourth statement to 
BRADFORD V. DAVIS 7

Detective Arnold. In each of these statements, Bradford 

implicated himself in the murder of Kokes.

II. Procedural Background

A. State Trial

Bradford moved to suppress all four statements. The 

trial court ruled that: (1) Bradford’s first statement was 

obtained in violation of Miranda v. Arizona, 384 U.S. 436 

(1966), but was voluntary; (2) his second statement was 

voluntary and not the product of interrogation; (3) his third 

statement was involuntary; and (4) his fourth statement was 

self-initiated, voluntary, and not in violation of Miranda. 

Thus, the trial court concluded that the second and fourth 

statements were admissible, but the first and third statements 

were not.

Bradford’s second statement was introduced at trial 

through the testimony of station officer Synthia Gordon. 

The audio tape of the fourth statement played in court, and 

jurors received a transcript of the statement. Bradford’s 

defense waived opening statement and presented no 

witnesses.

The jury found Bradford guilty of first-degree murder, 

first-degree robbery, rape, and sodomy. The jury also found 

true the special circumstance that Bradford intentionally 

killed Kokes to prevent her testimony in a criminal 

proceeding. However, the jury found Bradford not guilty of 

burglary, and found not true the special circumstances of 

rape-murder, sodomy-murder, and burglary-murder.

At the penalty phase, Bradford presented the testimony 

of several family friends, evidence that he was drunk on the 

day of the murder, and expert testimony that he had a 
8 BRADFORD V. DAVIS

condition that makes him unable to control his conduct when 

he ingests even a small amount of alcohol. The prosecution, 

in rebuttal, presented an expert who disputed the diagnosis 

of the condition. At the conclusion of the penalty phase, 

Bradford was sentenced to death.

B. Direct Appeal

The California Supreme Court appointed Jonathan 

Milberg to represent Bradford on appeal and in state habeas 

proceedings. On January 23, 1997, the California Supreme 

Court affirmed both Bradford’s conviction and death 

sentence. People v. Bradford, 929 P.2d 544 (1997) 

(Bradford).

The court agreed with the trial court that all four of 

Bradford’s statements were voluntary, but that the first and 

third statements were inadmissible. The California Supreme 

Court also determined that although the second portion of 

the second statement should not have been admitted because 

it violated Miranda, any error was harmless because the 

entire fourth statement was properly admitted. The Supreme 

Court of the United States denied Bradford’s petition for a 

writ of certiorari on November 3, 1997. Bradford v. 

California, 522 U.S. 953 (1997).

C. Initial State and Federal Habeas Proceedings

Milberg repeatedly requested extensions of time and 

additional funds to prepare Bradford’s state habeas petition, 

but he never filed the petition.

On September 15, 1997, the district court appointed the 

Federal Public Defender (FPD) to represent Bradford in 

federal habeas proceedings. Bradford filed his first federal 

habeas petition on October 30, 1998. On August 22, 2000, 
BRADFORD V. DAVIS 9

the district court stayed the case to permit Bradford to 

withdraw his unexhausted claims and present them in state 

court.

Prior to the grant of the stay, the FPD filed Bradford’s 

initial state habeas petition on January 6, 2000, along with a 

request to replace Milberg as state habeas counsel. Soon 

after, Milberg moved to withdraw as counsel; the California 

Supreme Court granted the motion and appointed the FPD. 

The California Supreme Court summarily denied Bradford’s 

initial state habeas petition on August 29, 2001, rejecting all 

claims on the merits and some on procedural grounds. 

Pertinent to this appeal, the court denied Bradford’s Claims 

4 (prosecutorial misconduct for suppression of toxicology 

test results), 6 (prosecutorial misconduct for suppression of 

witness interview notes), and 8 (ineffective assistance of 

counsel for failure to present a mental state defense of 

intoxication) as untimely.1

D. Subsequent Federal Habeas Proceedings

On November 29, 2001, Bradford filed an amended 

habeas petition in the district court. Eventually, Bradford 

moved for summary adjudication on Claim 1, his Miranda

claim. The court held that the California Supreme Court’s 

decision was contrary to and based on an unreasonable 

application of clearly established federal law, that all of 

Bradford’s statements were involuntary, and that the 

admission of the second and fourth statements was not 

harmless. The district court granted partial summary 

 1 Bradford filed a second state habeas petition in September 2003, 

which was denied in August 2007. None of the claims in that petition is 

at issue here.
10 BRADFORD V. DAVIS

judgment in favor of Bradford, declining to overturn his 

conviction but vacating the death sentence.

The district court subsequently denied Bradford’s 

remaining claims. The court held that Claims 4, 6, and 8 

were procedurally barred as untimely presented in the state 

courts and that Claim 12—the cumulative error claim—was 

meritless.

The district court entered judgment on December 4, 

2015, granting relief only on Claim 1, vacating the death 

sentence. The court issued a certificate of appealability 

(COA) on Claims 2–11 but denied Bradford’s application to 

expand the COA to include Claim 12 and the denial of relief 

on the conviction under Claim 1.

Bradford raises on appeal only three of the certified 

claims—Claims 4, 6, and 8—and requests that we expand 

the COA for Claims 1 and 12. The State cross appeals the 

district court’s grant of habeas relief on Claim 1.

JURISDICTION AND STANDARD OF REVIEW

Because Bradford filed his petition for habeas corpus 

after the effective date of the Anti-Terrorism and Effective 

Death Penalty Act of 1996 (AEDPA), we have jurisdiction 

over the certified claims and the State’s cross appeal 

pursuant to 28 U.S.C. §§ 2253 and 2254.

We review the district court’s denial of a habeas claim 

on state procedural grounds de novo. Fields v. Calderon, 

125 F.3d 757, 759–60 (9th Cir. 1997). We also review de 

novo the grant of habeas relief. Hartman v. Summers, 

120 F.3d 157, 160 (9th Cir. 1997).
BRADFORD V. DAVIS 11

A habeas petitioner challenging a state court decision in 

federal court must show that the last reasoned state court 

decision was either (1) “contrary to, or involved an 

unreasonable application of, clearly established Federal 

law,” 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). “Clearly established 

federal law” “refers to the holdings, as opposed to the dicta” 

of Supreme Court decisions as of the time of the state court 

decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

A state court unreasonably applies clearly established 

law if it “correctly identifies the governing legal rule but 

applies that rule unreasonably to the facts.” White v. 

Woodall, 572 U.S. 415, 426 (2014). Relief under 

§ 2254(d)(1) is available “if, and only if, it is so obvious that 

a clearly established rule applies to a given set of facts that 

there could be no ‘fairminded disagreement’ on the 

question.” Id. at 427 (quoting Harrington v. Richter, 

562 U.S. 86, 103 (2011)).

Alternatively, habeas relief is available if the last 

reasoned state court decision is contrary to clearly 

established federal law. A decision is contrary to clearly 

established precedent “if the state court applies a rule that 

contradicts the governing law set forth in [Supreme Court] 

cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Also, 

when a state court “confronts facts that are materially 

indistinguishable from a relevant Supreme Court precedent 

and arrives at a result opposite,” the decision is contrary to 

Supreme Court precedent. Id.

ANALYSIS

We consider first whether Bradford must, and can, 

overcome procedural default for Claims 4, 6, and 8. We then 
12 BRADFORD V. DAVIS

analyze the State’s cross appeal of the grant of habeas relief 

as to Claim 1. Finally, we consider whether to expand the 

COA to include Bradford’s uncertified claims.

I. Procedural Default of Claims 4, 6, and 8

The California Supreme Court denied as untimely 

Bradford’s claims for prosecutorial misconduct for 

suppression of toxicology test results (Claim 4), 

prosecutorial misconduct for suppression of witness 

interview notes (Claim 6), and ineffective assistance of 

counsel for failure to present a mental state defense of 

intoxication (Claim 8).

Federal habeas review is unavailable “if the decision of 

[the state] court rests on a state law ground that is 

independent of the federal question and adequate to support 

the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011) 

(alteration in original). To qualify as an adequate procedural 

ground, a state rule must be “firmly established and regularly 

followed.” Id. at 316.

Although a state court’s denial that rests on an adequate 

and independent state-law ground generally precludes 

federal habeas relief, the Supreme Court has carved out an 

exception to that rule. In Coleman v. Thompson, the Court 

held that where the petitioner could “demonstrate cause for 

the default and actual prejudice as a result of the alleged 

violation of federal law, or demonstrate that failure to 

consider the claims will result in a fundamental miscarriage 

of justice,” federal habeas review will not be barred. 

501 U.S. 722, 750 (1991).

The district court concluded that habeas review of 

Claims 4, 6, and 8 was unavailable because California’s 

timeliness rule was an adequate and independent state-law 
BRADFORD V. DAVIS 13

ground, and that Bradford failed to establish cause to 

overcome procedural default.2

A. California’s Timeliness Rule

To preclude federal habeas review, a state-law ground 

must be adequate—that is, it must be “firmly established and 

regularly followed.” Walker, 562 U.S. at 316. In Walker, 

the Supreme Court reversed our court and held that 

California’s timeliness rule for habeas petitions, although 

discretionary, met the firmly established criteria. Id. at 321–

22. The Court noted that the California Supreme Court 

“framed the timeliness requirement for habeas petitioners in 

a trilogy of cases.” Id. at 317 (citing In re Robbins, 959 P.2d 

311 (Cal. 1998); In re Gallego, 959 P.2d 290 (Cal. 1998); 

and In re Clark, 855 P.2d 729 (Cal. 1993)).

In the first of these cases, In re Clark, the California 

Supreme Court explained the four-part framework that 

constitutes California’s timeliness rule for habeas petitions. 

The court acknowledged that its June 1989 publication of 

timeliness standards for capital case petitions established a 

presumption of timeliness for habeas petitions filed “within 

90 days of the final due date for the filing of an appellant’s 

reply brief.” 855 P.2d at 751.3 A petitioner could also show 

 2 The district court found that Bradford could not establish cause 

because he failed to comply with California’s timeliness requirements, 

and because the FPD’s delay in filing his state petition was unjustified. 

The question of cause, however, is “a question of federal law,” Murray 

v. Carrier, 477 U.S. 478, 489 (1986) (emphasis added), and, as a result, 

the district court erred in analyzing whether Bradford met the 

justification requirements pursuant to California law.

3 California’s timeliness rule has since been amended to increase the 

window of presumptive timeliness to 180 days. See In re Reno, 283 P.3d 
14 BRADFORD V. DAVIS

that a presumptively untimely petition was filed without 

substantial delay, that good cause justified a substantial 

delay, or that the petition fits within several enumerated 

exceptions. See id. at 751–61.

Bradford contends that the adequacy of the California 

timeliness rule should be analyzed as of June 3, 1996, the 

date upon which his claims fell outside the 90-day timeliness 

presumption, and that pursuant to Walker, the California 

timeliness rule was not adequate until 1998. The State 

claims that Bradford’s default should be considered as of 

January 6, 2000—when Bradford filed his state habeas 

petition.

Where, as here, there are no issues concerning whether 

the defendant had adequate notice of the timeliness rule, the 

correct date is when the state habeas petition is filed. In 

Clark, the California Supreme Court considered whether the

petitioner had established substantial delay at the time of 

filing, where his first petition was filed almost two years 

after the policies establishing the 90-day presumption 

window were issued, and his second petition was filed five 

months after the first one was filed. 855 P.2d at 750–51.

Our cases follow suit. In Morales v. Calderon, the 

petitioner filed his first federal habeas petition on July 20, 

1992; his first state habeas petition on December 16, 1992 

(about three and a half years after the California Supreme 

Court confirmed his convictions); and a supplemental state 

petition later. 85 F.3d 1387, 1388 (9th Cir. 1996). The 

California Supreme Court denied both of his state habeas 

petitions on July 28, 1993. Id. We held that California’s 

 

1181, 1208 (Cal. 2012) (citing Cal. Supreme Ct. Policies, policy 3, std. 

1–1.1.).
BRADFORD V. DAVIS 15

timeliness rule was not adequate at “any time after Morales’s 

convictions were affirmed and before he filed his first state 

habeas petition.” Id. at 1393 (emphasis added). Similarly, 

in Calderon v. U.S. Dist. Court, we found supported the 

district court’s conclusion that the adequacy of the state 

procedural rule was to be analyzed at the time the petitioner 

filed his first state habeas petition in 1987. 103 F.3d 72, 75 

(9th Cir. 1996). The court did not consider the petitioner’s 

default as of 1989, when the California Supreme Court 

denied his petition; in 1994 when he filed a second state 

petition; or in 1995, when the second petition was denied. 

Id.

Bradford filed his initial state habeas petition on January 

6, 2000. By then, the California Supreme Court had decided 

Clark, Robbins, and Gallego.

4 Indeed, Bradford concedes 

that California’s timeliness rule was adequate as of 1998.

Accordingly, we hold that California’s timeliness rule 

was adequate as of January 6, 2000, when Bradford filed his 

state habeas petition. Our conclusion is not altered because 

Bradford did not file a state habeas petition prior to filing his 

federal petition. In Morales, the petitioner also did not file a 

state habeas petition until after filing his petition in federal 

 4 We have recognized several times that pre-Clark the California 

timeliness rule was not firmly established and therefore could not serve 

as an independent and adequate state ground to support procedural 

default. See, e.g., Calderon v. U.S. Dist. Court, 96 F.3d 1126, 1130 (9th 

Cir. 1996) (holding that California’s timeliness requirements were not 

consistently applied before Clark); Morales, 85 F.3d at 1391 (finding 

“no discernible clear rule” for petitions filed outside the 90-day 

presumption of timeliness window before Clark). We have not yet 

expressed any opinion as to whether Clark sufficiently clarified the 

timeliness rule such that it was firmly established from then on. It is 

unnecessary to decide the question in this case.
16 BRADFORD V. DAVIS

court, but we still looked to the filing date of his first state 

habeas petition. 85 F.3d at 1388. Bradford relies on our 

decision in Calderon v. U.S. Dist. Court, 96 F.3d 1126 (9th 

Cir. 1996), but it is inapposite. There, the petitioner filed his 

federal habeas petition in 1991 and his first state petition on 

May 27, 1994. Id. at 1128. Despite the petitioner filing his 

state habeas petition in 1994, the parties appeared to agree 

that any default “would have occurred before Clark was 

decided,” and we therefore held that the timeliness rule did 

not bar federal review. Id. at 1130–31. Here, the State has 

not conceded that Bradford’s default occurred pre-Clark, nor 

does Bradford advance this position.

Since Bradford does not argue that a failure to consider 

his claims will result in a fundamental miscarriage of justice, 

Bradford must establish cause and prejudice to overcome his 

procedural default. See Coleman, 501 U.S. at 750. We 

address that issue next.

B. Cause to Overcome Procedural Default

Cause “must be something external to the petitioner.” 

Id. at 753. External factors include obstacles such as “a 

showing that the factual or legal basis for a claim was not 

reasonably available to counsel,” or that “interference by 

officials . . . made compliance impracticable.” Murray v. 

Carrier, 477 U.S. 478, 488 (1986) (internal citations 

omitted).

“Attorney ignorance or inadvertence” is not cause. 

Coleman, 501 U.S. at 753. But, “[a]ttorney error that 

constitutes ineffective assistance of counsel is cause.” Id.

at 753–54. This is because when an attorney’s error 

constitutes a violation of the prisoner’s right to counsel, the 
BRADFORD V. DAVIS 17

error is “imputed to the State,” and is therefore an external 

factor. Id. at 754.5

Murray left open “whether counsel’s decision not to take 

an appeal at all” might require a different standard. 477 U.S. 

at 492. Coleman answered that question in the negative and 

held that the same cause and prejudice standard applied to a 

“failure to appeal at all.” 501 U.S. at 750. Later, Maples v. 

Thomas clarified that when a default results from an attorney 

abandoning his client without notice, the attorney’s “acts or 

omissions [] ‘cannot fairly be attributed to [the client].’” 

565 U.S. 266, 281 (2012) (second alteration in original) 

(quoting Coleman, 501 U.S. at 753). In Maples, the 

petitioner’s attorneys ceased their representation long before 

Maples’s appeal was due, but because they had not formally 

withdrawn, Maples did not receive any notice before his time 

to appeal expired. Id. at 287–88. The Court held that Maples 

had established cause to excuse his procedural default due to 

his attorneys’ abandonment. Id. at 289.

Bradford contends that Milberg’s failure to file his state 

habeas petition constitutes cause to excuse his default. 

Bradford also points to the California Supreme Court’s 

response to his request for an extension to file that there was 

no “due date” for his state habeas petition as contributing to 

the cause for default. The State argues that even if Bradford 

could show cause until 1998—when the FPD filed his 

 5 By contrast, if a petitioner had no constitutional right to counsel, 

he “must bear the burden of a failure to follow state procedural rules.” 

Id. Thus, in Coleman, because the defendant had no right to counsel 

during his state post-conviction proceedings, the Court held that any 

attorney error that led to the default of his claims could not constitute 

cause. Id. at 757.
18 BRADFORD V. DAVIS

federal petition—there is no justification for the FPD’s 15-

month delay in filing the state petition.

We find that Bradford has established cause due to the 

confluence of several factors. First, despite Milberg’s filing 

of multiple requests for extensions of time to file Bradford’s 

habeas petition and requesting preparation funds, he never

filed a petition. Nor did Milberg withdraw so that Bradford 

could obtain other counsel. Milberg’s actions clearly 

constituted abandonment.

Second, the California Supreme Court did not grant 

Bradford an extension to file his petition, informing him 

instead this petition was not subject to a “due date.” While 

that statement is technically true because California does not 

employ a strict deadline, a petitioner must make a greater 

showing to justify the delay once outside the presumptively 

timely window, which an extension could have broadened. 

See Clark, 855 P.2d at 752–53.

Third, the district court did not rule for over a year on 

Bradford’s motion to stay his case in order to exhaust his 

claims in state court. By the time the FPD filed Bradford’s 

state petition on January 6, 2000, the district court still had 

not decided the merits of his motion or identified which of 

his claims were unexhausted.

And fourth, Milberg did not move to withdraw as 

Bradford’s state habeas counsel until soon after the FPD 

filed his state habeas petition. Only then did the California 

Supreme Court grant Milberg’s motion and appoint the FPD 

as Bradford’s state habeas counsel.

Based on these unique circumstances that caused the 

delay in the filing of the state habeas petition, we find that 
BRADFORD V. DAVIS 19

Bradford has satisfied the cause prong of the cause and 

prejudice inquiry.

C. Prejudice to Overcome Procedural Default

To overcome procedural default, a petitioner must also 

show “actual prejudice.” Coleman, 501 U.S. at 750. This 

requires the petitioner to establish “not merely that the errors 

at . . . trial created a possibility of prejudice, but that they 

worked to his actual and substantial disadvantage, infecting 

his entire trial with error of constitutional dimensions.” 

Murray, 477 U.S. at 494 (alteration in original).

The district court, having found that Bradford had not 

established cause, never reached the question of prejudice. 

On appeal, the State argues only that Bradford cannot 

demonstrate prejudice because the California Supreme 

Court considered each of his claims and denied them on the 

merits in Bradford.

Our opinion in Apelt v. Ryan, 878 F.3d 800 (9th Cir. 

2017), undermines the State’s argument. There, we 

considered the effect on the cause and prejudice analysis of 

a state court decision that both held that a claim was 

procedurally barred and denied the claim on the merits. Id.

at 825. The state argued that because the state court had 

denied a post-conviction relief (PCR) petition on the merits, 

the petitioner could not show that the failure to raise these 

claims was prejudicial. We rejected that argument and found 

that the state court’s “determination [was] not in itself a 

complete bar to federal habeas review—particularly where, 

as here, the state court’s merits ruling on the PCR is a 

conclusory alternate ruling.” Id. at 827.

The California Supreme Court’s decision on the merits 

of Bradford’s claims was similarly conclusory, and the 
20 BRADFORD V. DAVIS

underlying principle of Apelt applies. As Apelt

demonstrated, a federal court first considers whether the 

petitioner meets the cause and prejudice standard to 

overcome procedural default, and then undertakes 

deferential review of the state court’s merits determination 

of the claim. See id. at 828–34 (finding ineffective 

petitioner’s trial counsel and sentencing counsel but 

concluding that the state court’s decision to the contrary 

regarding his trial counsel was not unreasonable).6 Similarly 

here, the district court is not precluded from conducting the 

prejudice inquiry because the California Supreme Court 

denied Bradford’s claims on the merits.

We find, however, that Bradford cannot establish 

prejudice for Claim 6—that the prosecution suppressed 

various notes from witness interviews conducted by the 

police. Under Brady v. Maryland, the prosecution must 

disclose exculpatory evidence to the defense. 373 U.S. 83, 

87 (1963). To succeed on his Brady claim, Bradford must 

prove that (1) the evidence is favorable to him, (2) the state 

suppressed the evidence, and (3) prejudice ensued. See 

Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The third 

component of the Brady claim overlaps with the prejudice 

inquiry here, because “unless [the] documents were 

 6 We emphasize that a state court’s merits denial should not preclude 

the prejudice inquiry to overcome procedural default. Although they rely 

on similar analyses, the two inquiries are, and must remain, separate. For 

example, a federal court could determine that a petitioner meets the 

Coleman standard and establishes cause and prejudice to overcome 

default. Then, pursuant to federal habeas review, the court could 

conclude that the state court’s decision was objectively unreasonable and 

grant habeas relief. In such a situation, to hold at the outset that the state 

court’s merits denial of the claim barred the prejudice inquiry for 

procedural default would improperly shield the claim from federal 

review.
BRADFORD V. DAVIS 21

‘material’ for Brady purposes, their suppression did not give 

rise to sufficient prejudice to overcome the procedural 

default.” Id. at 282. That is, there must be a “‘reasonable 

probability’ that the result of the trial would have been 

different if the suppressed documents had been disclosed to 

the defense.” Id. at 289.

Bradford focuses on statements given to the police by 

Freddie Maldonado, Jack Schwark, and Phil Hall—none of 

which was provided to the defense in discovery. In their 

interviews, Maldonado stated that Bradford was “real drunk” 

as he helped Kokes move into her apartment; Schwark noted 

that Bradford’s eyes were “red and glassy” and he smelled 

of alcohol around 4:30 p.m. to 5 p.m.; and Hall said that 

Bradford had a “weird look” in his eyes. These observations 

might have assisted the defense in mounting a mental state 

defense to negate the intent element of first-degree murder 

and helped to impeach Hall, who testified at trial that 

Bradford did not appear to be under the influence of anything 

on the day of the offenses. See People v. Saille, 820 P.2d 

588, 595 (Cal. 1991) (noting voluntary intoxication and 

mental illness evidence are admissible on the issue of

whether the accused “actually formed a required specific 

intent, premeditated, deliberated . . . when a specific intent 

crime is charged”).

But, Beerman’s testimony that Bradford was drunk, and 

evidence of the amount of alcohol that Bradford had 

consumed, were introduced at trial. The statements from 

these three other individuals in the apartment complex who 

saw Bradford looking “drunk” or “weird” were thus 

cumulative. We cannot say that there is a “reasonable 

probability” the trial result would have differed had the 

interview notes been disclosed. Strickler, 527 U.S. at 289.
22 BRADFORD V. DAVIS

While we remand Claims 4 and 8, and not Claim 6, for 

the district court to conduct the prejudice inquiry in the first 

instance, our decision to remand these two claims should not 

be regarded as suggestive of their merits.

II. Voluntariness of Bradford’s Post-Arrest Statements

Over the course of about a day-and-a-half, after being 

arrested, Bradford made four statements to the police on 

April 19 and 20, 1988. During each, Bradford implicated 

himself in the murder of Kokes by describing details of the 

crime.7

On direct appeal, Bradford challenged the admission of 

his second and fourth statements. The California Supreme 

Court held that although the second part of the second 

statement had erroneously been admitted at trial as 

substantive evidence, its admission constituted harmless 

error because the fourth statement had been properly 

admitted. Bradford, 929 P.2d at 564.

The district court, after conducting de novo review, held 

that all of Bradford’s statements were involuntary, that the 

California Supreme Court’s decision denying relief was 

contrary to and based on an unreasonable application of 

clearly established federal law, and that the admission of the 

entire second and fourth statements was not harmless. The 

district court granted habeas relief as to the special 

 7 The State requests that we take judicial notice of the audiorecordings of Bradford’s first, third, and fourth statements to the police. 

The California courts considered the recorded interviews in determining 

the voluntariness of Bradford’s confessions. Bradford, 929 P.2d at 567. 

Because the request is unopposed, we GRANT the request and take 

judicial notice.
BRADFORD V. DAVIS 23

circumstance and penalty phase and vacated Bradford’s 

death sentence. The State cross appeals from that decision.

Under Miranda, custodial interrogation of a defendant 

must be preceded by the advice that he has the rights, among 

others, to remain silent and to have an attorney present. If a 

defendant requests counsel, “the interrogation must cease 

until an attorney is present.” 384 U.S. at 474. If a defendant 

invokes his right to counsel, a subsequent waiver must be 

voluntary, knowing, and intelligent. Edwards v. Arizona, 

451 U.S. 477, 482 (1981). It is insufficient to show “only 

that [the defendant] responded to further police-initiated 

custodial interrogation” to establish a waiver of counsel. Id.

at 484. Once a defendant requests counsel, he should not be 

subject to further interrogation “until counsel has been made 

available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the 

police.” Id. at 484–85. Thus, Edwards established a 

“prophylactic rule designed to prevent police from 

badgering a defendant into waiving his previously asserted 

Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350 

(1990).

Statements obtained in violation of Miranda are 

nonetheless admissible for impeachment if their 

“trustworthiness . . . satisfies legal standards.” Mincey v. 

Arizona, 437 U.S. 385, 397–98 (1978) (alteration in 

original). But, “any” use of a defendant’s involuntary 

statement is a denial of due process. Id. at 398. A voluntary 

statement must be “the product of a rational intellect and a 

free will.” Id. This voluntariness inquiry considers “all the 

circumstances of the interrogation.” Id. at 401. Relevant 

circumstances may include: a suspect’s age, education, 

intelligence, physical health, and prior experience with the 

criminal system; the length, location, and conditions of 
24 BRADFORD V. DAVIS

detention; the length and nature of questioning; and the use 

by law enforcement of any threats, punishments, or 

inducements. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 

218, 226 (1973). The state bears the burden of proving by a 

preponderance of the evidence that the defendant’s Miranda

waiver and confession were voluntary. Colorado v. 

Connelly, 479 U.S. 157, 168 (1986).

A prior coerced confession can “taint” a subsequent one. 

See Oregon v. Elstad, 470 U.S. 298, 310 (1985). In 

conducting a taint analysis, the court considers “the time that 

passes between confessions, the change in place of 

interrogations, and the change in identity of the 

interrogators.” Id.

An Edwards violation, however, does not on its own 

render subsequent confessions involuntary. See Elstad, 

470 U.S. 308–10. Contrary to Bradford’s argument, the 

Supreme Court has not clearly established that a 

presumption of involuntariness attaches to statements taken 

in violation of Edwards, such that subsequent statements are 

tainted. The Court has held that statements taken in violation 

of Edwards may still be used for impeachment, Oregon v. 

Hass, 420 U.S. 714, 722–23; see also Harvey, 494 U.S. at 

350–51, which means that such statements are not presumed 

to be involuntary by virtue of the Edwards violation alone. 

See Hass, 420 U.S. at 722–23; Mincey, 437 U.S. at 398.

Although the California Supreme Court held that 

Bradford’s first and third statements were inadmissible, 

because the district court’s analysis of these statements 

influenced its holding as to the second and fourth statements, 

we review all four. The California Supreme Court provided 

a detailed account of the four statements in Bradford, and we 

recite here only those facts necessary to provide context for 

our analysis. We hold that the California Supreme Court’s 
BRADFORD V. DAVIS 25

conclusions were not contrary to, nor were they an 

unreasonable application of, federal law.

A. Statement 1: Statements to Detective Riehl on 

April 19, 1988

In the early morning of April 19, 1988, Detectives Riehl, 

Arnold, and Coblentz interviewed Bradford on tape in the 

Van Nuys police station. Bradford, 929 P.2d at 555. Soon 

after obtaining Bradford’s background information, 

Detective Riehl informed Bradford of his Miranda rights and 

asked if he wanted to speak about “what happened last 

night.” Bradford declined and requested a lawyer. Detective 

Riehl then told Bradford they could go “off the record.” 

Bradford soon agreed to discuss Kokes’s murder and 

described his actions.

The California Supreme Court held that although the 

police violated Miranda in obtaining Bradford’s first 

statement, it was voluntary. Id. at 566. The court noted that 

Bradford had been in custody “only . . . six hours” when he 

made the statement. Id. Moreover, the court observed that 

once the detectives told him they were “off the record,” he 

demonstrated “no hesitation” in speaking with them, and his 

voice exhibited no “stress” or “excitement.” Id. at 566–67. 

The district court held that this conclusion was contrary to 

and an unreasonable application of federal law because the 

detectives continued to interrogate Bradford after he invoked 

his right to counsel and made misleading statements 

regarding potential defenses.

Under our required deferential review, we find that the 

California Supreme Court’s totality of the circumstances 

analysis was not an unreasonable application of federal law. 

We find support for the court’s conclusions regarding 

Bradford’s voice upon our review of the interview recording, 
26 BRADFORD V. DAVIS

which demonstrates that Bradford’s tone remained steady 

and flat. The district court found damning the fact that 

Detective Riehl improperly suggested that Bradford would 

be “stuck” if he waited to speak to an attorney and spoke 

about potential mitigation defenses. But the California 

Supreme Court noted these facts, and the record here 

diverges significantly from others in which we have 

determined that police engaged in coercive tactics. See, e.g., 

Cooper v. Dupnik, 963 F.2d 1220, 1243, 1248 (9th Cir. 

1992) (describing involuntary statement where police 

ignored repeated requests for counsel and badgered suspect 

for four hours with “harsh and unrelenting” questioning until 

he was “sobbing and pleading his innocence”), overruled on 

other grounds by Chavez v. Martinez, 538 U.S. 760 (2003). 

Despite Bradford’s unambiguous requests for a lawyer and 

the interrogation extending beyond one hour, the California 

Supreme Court’s holding that his statement was voluntary, 

despite the Edwards violation, was not an unreasonable 

application of the federal voluntariness analysis.

In addition, the California Supreme Court’s conclusion 

was not contrary to clearly established federal law. The 

California Supreme Court identified the relevant precedent 

of Miranda, Edwards, and their progeny. The court also 

correctly noted that an Edwards violation alone, without 

further coercion or other circumstances, does not inherently 

render the statement involuntary. Bradford, 929 P.2d at 566. 

Therefore, the district court erred holding that Bradford’s 

first statement was involuntary.

B. Statement 2: Booking Statement on April 19, 1988

The second statement consists of two exchanges 

occurring on April 19, 1988 at approximately 7 a.m., while 

Van Nuys station officers booked Bradford. When Officer 

Denby fingerprinted Bradford, an unidentified detective 
BRADFORD V. DAVIS 27

applying for a license told Bradford he looked “like a traffic 

ticket” and asked, “Is it just a warrant?” Bradford 

responded, “Murder.” The detective then left, and for about 

two minutes neither Officer Gordon nor Officer Denby 

spoke to Bradford. Then, when Officer Denby finished the 

fingerprinting, Bradford—unprompted—told the officers 

that he had helped Kokes move into her apartment, choked 

her, left the apartment to clean up, and returned to kill her. 

Officer Gordon then asked Bradford if he felt sorry, and the 

officers proceeded to ask him several questions about the 

crime. Neither officer informed Bradford of his Miranda

rights.

The reviewing courts divided the booking statement into 

two parts when analyzing its admissibility and voluntariness, 

and so do we. The first part consists of the remark from the 

unidentified detective until the end of the officers’ silence. 

The second part is the exchange between the officers and 

Bradford during which the officers questioned him.

i. First part of the booking statement

Miranda and Edwards apply only to custodial 

interrogation. See Miranda, 384 U.S. at 478–79; Edwards, 

451 U.S. at 486 (“Absent such [custodial] interrogation, 

there would have been no infringement of the right that 

Edwards invoked.”); see also Arizona v. Roberson, 486 U.S. 

675, 681 (1988) (observing that the “prophylactic 

protections” of Miranda “are implemented by the 

application of the Edwards corollary”). Custodial 

interrogation is “questioning initiated by law enforcement 

officers after a person has been taken into custody or 

otherwise deprived of his freedom of action in any 

significant way.” 384 U.S. at 444. Yet not all statements 

given by a person in custody are entitled to Miranda

protection. Rather, interrogation “must reflect a measure of 
28 BRADFORD V. DAVIS

compulsion above and beyond that inherent in custody 

itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). As 

refined by Innis, police officers’ express questioning or its 

functional equivalent—when they “should have known

[their words or actions] were reasonably likely to elicit an 

incriminating response,” Id. at 302—constitute 

interrogation.

In Innis, the defendant requested counsel after being 

advised of his Miranda rights. Id. at 294. As he sat in a 

patrol car en route to the station, the officers conversed about 

a missing shotgun and their concern that nearby handicapped 

children would find the gun and hurt themselves. Id. at 294–

95. The defendant “interrupted the conversation” and told 

the officers to go back so that he could show them the gun’s 

location. Id. at 295. The Court held that this exchange was 

not an interrogation within the meaning of Miranda, because 

it could not determine that the officers should have known 

their “off hand remarks” were reasonably likely to elicit an 

incriminating response. Id. at 303.

The California Supreme Court found that the first part of 

Bradford’s second statement was admissible because the 

detective’s statement was not an interrogation and so 

Bradford’s response of “Murder” was not protected, and that 

Bradford had voluntarily initiated a discussion about the 

murder before the officers questioned him. Bradford, 

929 P.2d at 562. The district court found involuntary this 

portion of Bradford’s booking statement because it was the 

direct result of the prior coercion and a “mere[] 45 minutes 

after Bradford’s earlier coerced statement to Riehl.” 

The California Supreme Court applied Innis and 

determined that because neither the detective’s “casual 

statement” nor his question was reasonably likely to elicit an 

incriminating response, there had been no interrogation. Id. 
BRADFORD V. DAVIS 29

That conclusion is not contrary to or an unreasonable 

application of federal law. The detective directly questioned 

Bradford, but there was no “measure of compulsion above 

and beyond that inherent in custody itself” such that the 

question transformed into an interrogation and Bradford’s 

answer into “the product of interrogation.” Innis, 446 U.S. 

at 299–300. Similarly, Bradford’s discussion of the murder 

after the detective left was not the product of custodial 

interrogation. Bradford’s volunteered statements were 

unprompted by the officers. See Edwards, 451 U.S. at 485–

86 (noting that the police could have used incriminating 

statements made by Edwards prior to his access to counsel if 

they were “voluntary, volunteered statements”).

ii. Second part of the booking statement

The officers elicited the second part of the booking 

statement during custodial interrogation, and the California 

Supreme Court concluded that under the totality of the 

circumstances, while Bradford had not knowingly and 

intelligently waived his right to counsel, his statements were 

voluntary. Bradford, 929 P.2d at 562–64. The California 

Supreme Court held that any error in admission of this 

statement was harmless “beyond a reasonable doubt,” 

finding it duplicative of Bradford’s fourth statement and the 

evidence of his guilt “overwhelming.” Bradford, 929 P.2d 

at 564. Conversely, the district court held that the admission 

of this portion of the booking statement did not constitute 

harmless error because neither the fourth nor second 

statements were voluntary.

Because we agree with the California Supreme Court 

that Bradford’s first statement and the first part of the 

booking statement were voluntary, there was no coercive 

“taint” to stretch to the second part of the booking statement 

to render it involuntary. See Elstad, 427 U.S. at 310. 
30 BRADFORD V. DAVIS

Further, Bradford initiated this conversation with the 

officers after saying “Murder,” and there is no evidence of 

coercion or compulsion in that short exchange. See Cooper, 

963 F.2d at 1248 (describing “hours of mistreatment and 

what can fairly be described as sophisticated psychological 

torture”). The California Supreme Court’s conclusion that 

this part of the second statement was voluntary was not 

unreasonable or contrary to federal law.

This part of the booking statement, though, was 

introduced as substantive evidence at trial, despite the 

officers’ failure to advise Bradford of his Miranda rights and 

the absence of a waiver by Bradford of these rights. On 

direct appeal, a constitutional trial error can be held excused 

only if “it was harmless beyond a reasonable doubt.” Brecht 

v. Abrahamson, 507 U.S. 619, 630 (1993). On habeas 

review, by contrast, we must apply the “less onerous 

standard” of whether the constitutional error “had substantial 

and injurious effect or influence in determining the jury’s 

verdict.” Id. at 637 (quoting Kotteakos v. United States, 

328 U.S. 750, 776 (1946)). “[T]he Brecht standard 

‘subsumes’ the [§ 2254(d) requirements] when a federal 

habeas petitioner contests a state court’s determination that 

a constitutional error was harmless.” Davis v. Ayala, 135 S. 

Ct. 2187, 2198 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 

120 (2007)).

Given the amount of detail Bradford offered in the fourth 

statement, the second part of the booking statement was 

plainly cumulative. As discussed below, we find that the 

California Supreme Court did not unreasonably apply 

federal law in determining that the fourth statement was 

admissible. Thus, the admission of this portion of the 

booking statement did not have a “substantial and injurious 

effect” on the jury. Cooper v. Taylor, 103 F.3d 366, 370–71 
BRADFORD V. DAVIS 31

(4th Cir. 1996) (en banc) (finding harmless the improper 

admission of defendant’s third confession given that the 

same and additional information was provided in two earlier, 

admissible confessions).

C. Statement 3: Statements to Detective Hooks on 

April 19, 1988

Bradford’s third statement occurred on April 19, 1988 

beginning around 9:30 a.m. Bradford, 929 P.2d at 557. 

Detective Hooks interviewed Bradford, and began by noting 

that “it’s my understanding that you chose not to waive your 

rights at this time, is that correct?” After a clarification, 

Bradford answered that he wanted an attorney “to help me 

out a little bit.” Despite this affirmation of Bradford’s 

request for counsel, Detective Hooks proceeded to 

interrogate him “off the record.” Bradford again described 

Kokes’s murder and the aftermath.

The California Supreme Court, although correctly noting 

that Detective Hooks’s conduct was “unethical and . . .

strongly disapproved,” found the third statement voluntary 

because Bradford had been in custody approximately eleven 

hours and had demonstrated no hesitation in speaking with 

Detective Hooks. Bradford, 929 P.2d at 566–67. The 

district court determined that Bradford’s third statement was 

involuntary.

While the California Supreme Court’s observation that 

Detective Hooks’s conduct was “unethical” seemingly flies 

in the face of its conclusion that his tactics were not 

impermissibly coercive, the court’s totality of the 

circumstances conclusion is entitled to deference. Contrary 

to the district court’s finding, this statement was not tainted 

by a prior involuntary statement. And, as with the other 

recorded interviews, Bradford betrayed no emotion in the 
32 BRADFORD V. DAVIS

interview to signal his distress or discomfort. Cf. Henry v. 

Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999) (describing 

incoherent suspect as “shaken, confused, and frightened, 

crying in parts and frequently asking for forgiveness” in 

interrogation after officers made misleading comments that 

nothing he said could be used against him). It was not 

objectively unreasonable for the California Supreme Court 

to determine that Bradford’s will was not overborne during 

the interrogation. Cf. Mincey, 437 U.S. at 401–02 (“Mincey 

was weakened by pain and shock, isolated from family, 

friends, and legal counsel, and barely conscious, and his will 

was simply overborne.”).

D. Statement 4: Statements to Detective Arnold on 

April 20, 1988

Bradford’s fourth challenged statement occurred on the 

morning of April 20, 1988. Bradford called Detective Hooks 

and said that he wanted to put a statement on the record. 

Bradford, 929 P.2d at 559. At approximately 10 a.m., 

Bradford met with Detective Arnold for the interrogation. 

Id.

At the beginning, Detective Arnold asked why Bradford 

wanted to speak to them, and Bradford responded, “I had 

some questions and I’ll probably talk, I don’t know.” After 

some back and forth, Detective Arnold said that if Bradford 

wanted to give an “on the record statement,” he would 

“readvise [him] of [his] constitutional rights.” Detective 

Arnold then advised Bradford of his right to an attorney. 

Next, Detective Arnold asked if Bradford understood that he 

had the right to counsel, and Bradford affirmed that he did. 

Subsequently, Detective Arnold queried whether Bradford 

wanted to give up his right to an attorney, and Bradford 

affirmed. Detective Arnold then accurately stated 

Bradford’s Miranda rights, and asked if he wanted to “give 
BRADFORD V. DAVIS 33

up your right to remain silent.” Bradford again stated, 

“Yes.” Detective Arnold asked, “Yes?” thrice more, and 

Bradford affirmed twice. Finally, Detective Arnold 

repeated, “Ok – do you wish to give up your right to have an 

attorney present during questioning.” Bradford responded, 

“Yes.”

During the interview, Bradford described helping Kokes 

move in, grabbing her throat and raping her, and hitting her 

as she gasped for air. Bradford stated that he returned to his 

room to shower because he “had blood all over me.” In his 

room, he started thinking about “[i]f she was gonn [sic] live, 

you know, and ratting me off.” Armed with a knife, 

Bradford returned to Kokes’s apartment where he thought 

she was still alive because she was “gasping for air.” He 

then “rolled her over and slit her throat” twice. He also 

stabbed her in the chest.

The California Supreme Court held that Bradford’s 

statement to Detective Arnold was properly admitted 

because it was voluntary and Bradford validly waived his 

Miranda rights. Bradford, 929 P.2d at 569. The district 

court found the voluntariness ruling contrary to and an 

unreasonable application of federal law due to the lasting 

taint of the three prior illegally-elicited statements.

The Supreme Court has been clear that a defendant who 

has asserted his right to counsel may still subsequently waive 

his Miranda rights. See Minnick v. Mississippi, 498 U.S. 

146, 156 (1990) (“Edwards does not foreclose finding a 

waiver of Fifth Amendment protections after counsel has 

been requested, provided the accused has initiated the 

conversation or discussions with the authorities.”); Edwards, 

451 U.S. at 485 (noting an accused cannot be further 

interrogated unless “the accused himself initiates further 

communication . . . with the police”). Here, Bradford 
34 BRADFORD V. DAVIS

initiated the interrogation by calling Detective Hooks and 

requesting a meeting. This self-initiated interrogation is 

clearly permissible under Edwards. The California Supreme 

Court properly identified the next inquiry as whether 

Bradford’s waiver of his right to counsel was knowing and 

intelligent and found that it was. Bradford, 929 P.2d at 568–

69.

Because it reasonably concluded that Bradford’s prior 

three statements were voluntary, the California Supreme 

Court need not have considered whether any taint passed to 

this fourth statement. Although the three separate 

Miranda/Edwards violations may weigh against a finding of 

voluntariness, no Supreme Court precedent directed the 

California Supreme Court to find a subsequent involuntary 

statement after three voluntary ones, albeit ones given in 

violation of Miranda/Edwards. The California Supreme 

Court also considered whether the previous interrogations 

had “amounted to psychological coercion” to break down 

Bradford’s resistance, and reasonably found that “no 

coercive threats or promises” were made. Id. at 569.8

Accordingly, the California Supreme Court’s holding 

that Bradford’s fourth statement was voluntary was not 

objectively unreasonable. Bradford initiated the fourth 

interrogation more than twenty-four hours after the third 

 8 Bradford relies heavily on our pre-AEDPA case Collazo v. Estelle,

in which we held on de novo review that a police officer’s 

psychologically coercive tactics rendered a defendant’s later Mirandized 

confession involuntary where the officer threatened that it could be 

worse for the defendant if he spoke to a lawyer, and continued 

interrogation after the defendant requested counsel. 940 F.2d 411, 419–

20 (9th Cir. 1991) (en banc). While some similarities exist between 

Bradford’s case and Collazo, our cases cannot serve as clearly 

established law for the purposes of habeas review post-AEDPA.
BRADFORD V. DAVIS 35

one, and Detective Arnold’s numerous clarifications of 

Bradford’s Miranda rights and Bradford’s several 

affirmations of his waiver rendered the waiver knowing and 

intelligent. Starkly absent from the record are coercive 

tactics that could lead us to conclude that Bradford’s fourth 

statement was involuntary or his waiver unknowing or 

unintelligent.

E. Conclusion

None of the California Supreme Court’s conclusions 

regarding the voluntariness and admissibility of Bradford’s 

four post-arrest statements deserves to be disturbed on 

federal habeas review. Accordingly, we reverse the district 

court’s holding for Claim 1 and its grant of a conditional writ 

based on its finding that the California Supreme Court’s 

decision was contrary to or an unreasonable application of 

clearly established federal law.

III. Expansion of the Certificate of Appealability

A “COA may not issue unless ‘the applicant has made a 

substantial showing of the denial of a constitutional right’ 

. . . a demonstration that . . . includes showing that 

reasonable jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a 

different manner or that the issues presented were ‘adequate 

to deserve encouragement to proceed further.’” Slack v. 

McDaniel, 529 U.S. 473, 483–84 (2000) (internal citations 

omitted).

We decline to issue a COA with respect to Bradford’s 

claims that the district court erred in fashioning a limited 

habeas remedy or not granting him a new trial, in light of our 

conclusion above that the district court erred in granting 

habeas relief on Bradford’s Claim 1. Because we remand 
36 BRADFORD V. DAVIS

Claims 4 and 8 to the district court to address the issue of 

prejudice, we decline to expand the COA at this time to 

address the issue of cumulative prejudice. And, because we 

conclude that Bradford was not prejudiced with respect to 

the subject matter of Claim 6, we need not expand the COA 

to consider cumulative prejudice arising from that claim.

CONCLUSION

Due to the circumstances that delayed the filing of his 

state habeas petition, Bradford has established cause to 

overcome procedural default. We reverse the district court’s 

procedural default holding as to Claims 4 and 8 and remand 

for the district court to conduct the prejudice prong analysis. 

We find, however, that Bradford cannot establish prejudice 

as to Claim 6 and affirm the denial of habeas relief on that 

claim. As to the State’s cross appeal, we reverse the 

conditional writ of habeas corpus as to Bradford’s death 

sentence. Finally, we decline to expand the COA.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.