290 F.3d 1030 (9th Cir. 2002), 00-16210, Pollard v. Galaza

Docket Nº:00-16210.
Citation:290 F.3d 1030
Party Name:Jimmie Leon POLLARD, Petitioner-Appellant, v. George GALAZA, Respondent-Appellee.
Case Date:May 14, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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290 F.3d 1030 (9th Cir. 2002)

Jimmie Leon POLLARD, Petitioner-Appellant,


George GALAZA, Respondent-Appellee.

No. 00-16210.

United States Court of Appeals, Ninth Circuit

May 14, 2002

Argued and Submitted April 8, 2002.

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Rachelle Barbour, Federal Defender, Sacramento, CA, for the petitioner-appellant.

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Leah Ann Alcazar, Deputy Attorney General, Fresno, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, District Judge, Presiding. D.C. No. CV-97-05407-AWI.

Before: O'SCANNLAIN and TALLMAN, Circuit Judges, and KING, District Judge.[*]


KING, District Judge.

We must decide whether the state court correctly allowed the government to use a statement, obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at trial for impeachment purposes.


This case arises out of habeas petitioner Jimmie Leon Pollard's conviction in a California state court for second-degree murder and trespassing. After Pollard was arrested and taken into custody, he was held in the police station interview room. About three hours after his arrest, Pollard was sleeping when Detective Bob Stratton of the Bakersfield police awakened him for fingerprinting. After Pollard was fingerprinted at the lab, he was returned to the interview room. About fifteen minutes after that, Detective Stratton started to question him. Detective Stratton read Pollard his Miranda rights and Pollard stated that he understood his rights and that he did not want to speak to Detective Stratton. After a brief pause, Pollard initiated further conversation by asking Detective Stratton what happened. Detective Stratton informed Pollard that a man had been killed and that Pollard was seen leaving the apartment. Detective Stratton continued the conversation by asking questions, and Pollard would reply. Pollard proceeded to describe his activities on the night of the murder which were eventually used to impeach him during his trial.

During the interview Detective Stratton was wearing plain clothes with no visible firearm. Pollard was not handcuffed or otherwise physically restrained. Pollard and Detective Stratton were seated opposite each other separated by a small desk in the interview room. Although Detective Stratton initially thought Pollard was under the influence of a drug or alcohol, he concluded that Pollard was coherent and was carrying himself in a normal manner. Detective Stratton continued the conversation after Pollard stated twice that he did not want to speak to him because Pollard continued speaking to him, and because he knew that the statements could possibly be used later for impeachment.

During the trial, Pollard testified inconsistently from his statement to Detective Stratton. Over Pollard's objection, the government introduced portions of the earlier statement for the limited purpose of impeaching him. Pollard was convicted and sentenced to a prison term of nineteen years to life.


We review a district court's decision to deny habeas relief de novo. See Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir. 2001). We also consider the issue of whether a confession is voluntary or coerced de novo. See Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991); see also United States v. Doe, 170 F.3d 1162, 1168 (9th Cir. 1999). To prevail, Pollard must demonstrate that

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the state court's adjudication of the merits "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." Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001)(citing 28 U.S.C. § 2254(d)(1)). State court findings of fact are to be presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Zichko v. Idaho, 247 F,3d 1015, 1019 (9th Cir. 2001).


It is undisputed that Pollard's statement to Detective Stratton was taken in violation of Miranda. The issue before us is whether the statement was voluntary and therefore admissible for impeachment at trial. Although a statement, taken in violation of Miranda, may not be used substantively in the prosecution's case-in-chief, such a statement, if voluntary, may be used for impeachment should the Defendant testify inconsistently. See Hams v. New York, 401 U.S. 222, 224-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). "If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal 'obligation to speak truthfully and accurately.'" Michigan v. Harvey, 494 U.S. 344, 351,110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (quoting Hams, 401 U.S. at 225, 91 S.Ct. 643). The Supreme Court has consistently rejected arguments that would allow a defendant to "turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths." Id. (quoting Harris, 401 U.S. at 224, 91 S.Ct. 643). However, if the statement was procured such that it was involuntary, then the statement is excluded for all purposes. Michigan v. Harvey, 494 U.S. 344, 351, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir. 1999).


Pollard argues that he was groggy when he informed Detective Stratton that he did not want to speak, and that Detective Stratton "enticed" Pollard to make incriminating statements by asking about his drug and alcohol use before moving on to the facts surrounding the crime. Pollard also argues that the statement was per se involuntary because it was taken in the course of an intentional and deliberate violation of Miranda. The government maintains that the statement was voluntary since Detective Stratton did not make misrepresentations or use coercion sufficient to make the statement involuntary. We agree.

Under the Fourteenth Amendment, a confession is involuntary only if the police use coercive means to undermine the suspect's ability to exercise his free will. See Henry, 197 F.3d at 1026. In determining whether a statement is voluntary, the court looks at the surrounding circumstances and the combined effect of the entire course of the officer's conduct upon the defendant. See United States v. Polanco, 93 F.3d 555, 560 (9th Cir. 1996). The test of voluntariness is well-established: "Is the confession the product of an essentially free and unconstrained choice by its maker? . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the...

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