Stephen Wayne ANDERSON, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee, 232 F.3d 1053

TROTT, Circuit Judge: Elizabeth Lyman was an 81 year old retired piano teacher. She lived by herself on Church Street in Bloomington, San Bernardino County, California. About one hour after midnight on Monday, May 26, 1980 — Memorial Day — petitioner Anderson, a 26-year old escapee from Utah State Prison, broke into Mrs. Lyman’s home* cut her phone line with a knife, and shot her in the face from a distance of 8 to 20 inches with his .45 caliber handgun as she lay in her bed.

Anderson then covered her dead body with a blanket, recovered the incriminating expelled casing from the hollowpoint bullet that killed her, and methodically ransacked her house for money. He found less than $100. Next, Anderson sat down in Mrs. Lyman’s kitchen to eat a dinner of noodles and eggs. His meal was interrupted, however, by deputy sheriffs called to the scene by a suspicious neighbor who had been awakened by barking dogs and had seen Anderson in Mrs. Lyman’s house through a window. The deputies arrested Anderson at 8:47 a.m. and took him to the San Bernardino Sheriffs Substation in Fontana.

Enter San Bernardino County Sheriffs Department Homicide Detail Detectives Wes Daw and Dennis O’Rourke. Daw and O’Rourke promptly advised Anderson of his Miranda rights, after which he freely and fully confessed to the burglary of Mrs. Lyman’s house and to shooting her. He repeated his confession three hours later at Lyman’s home during a filmed reenactment of the crime. Two days later, on May 28, he was interviewed at 6:55 p.m. by Dr.

Robert Flanagan, a psychiatrist employed by the California prison system, to whom he repeated his confession and who found him to be sane, oriented, and sober at the time of the offense, and competent to stand trial. Because of the holiday and other events, seventy-six hours elapsed between Anderson’s arrest and his arraignment on May 29,1980, at 1:10 p.m. A San Bernardino County jury convicted Anderson of first degree felony murder with special circumstances, finding that the murder of Elizabeth Lyman occurred during a burglary. The jury sentenced him to death.

The California Supreme Court affirmed the convictions but granted his request for a new special circumstances/penalty phase trial on the ground that the jury had erroneously not been asked (as required by California law) to determine whether the homicide was intentional. See People v. Anderson, 38 Cal.3d 58, 61, 210 Cal.Rptr. 777, 694 P.2d 1149, 1151 (1985). Such a finding was necessary at that time before a defendant could be eligible for capital punishment.

A second jury retrying special circumstances and the penalty phase of Anderson’s case years later concluded in 1986 that the murder of Elizabeth Lyman was intentional and again sentenced him to death. Eventually, having failed in state court to undo either his conviction or his final death sentence, see People v. Anderson, 52 Cal.3d 453, 485, 276 Cal.Rptr. 356, 801 P.2d 1107, 1125 (1990), Anderson went to federal district court with a petition for a writ of habeas corpus. After lengthy proceedings, which included an exhaustive evidentiary hearing, his numerous claims were denied.

He now comes to us on appeal from the denial with claims aimed at both his conviction and his sentence. The claims are as follows: 1) That the State violated the disclosure rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over to Anderson’s trial lawyers a brief tape-recorded interview taken on the day of his arrest in which he alleges he invoked his right to remain silent. 2) That the State violated his Fourth Amendment right by failing promptly to arraign him as required by County of Riverside v.

McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). 3) That the State trial court made improper comments to the penalty phase jury about the procedural history of the case, including comments that Anderson had previously been sentenced to death, but that the sentence had been overturned on appeal. 4) That the State trial court erred in failing to instruct the guilt-phase jurors on lesser included offenses. 5) That he was the victim of ineffective assistance of counsel. 6) That the penalty phase jurors prematurely began deliberations. 7) That the federal district court erred in refusing to limit the State’s use of privileged materials to federal habeas corpus proceedings.

This court has jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm the judgment of the district court. I Brady v. Maryland In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. The duty to disclose such evidence is applicable even though there has been no request by the accused, United States v.

Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); and the duty encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682, 105 S.Ct. 3375; see also Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

Because Brady does not require bad faith on the part of the prosecution for a violation of due process, the rule encompasses evidence “known only to police investigators and not to the prosecutor.” Kyles, 514 U.S. at 438, 115 S.Ct. 1555. In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. at 437,115 S.Ct. 1555.

We use a three-part test to measure whether a failure to disclose amounted to a Brady violation: (1) the evidence at issue must be “favorable” to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the suppressed evidence must be “material” under state law to the accused’s guilt or punishment—i.e., prejudice must have ensued. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also United States v. Cooper, 173 F.3d 1192, 1202 (9th Cir.1999).

Brady comes into play in this case because Daw and O’Rourke had a brief tape recorded conversation with Anderson between 7:04 a.m. and 7:07 a.m. on the day of his arrest, but neither the conversation, nor the existence of the tape, nor the substance of the discussion were disclosed to Anderson’s attorneys until April 1993, some 13 years after the murder of Elizabeth Lyman and long after Anderson’s trials and second sentence to death.

The brief conversation was occasioned by Anderson’s request during his initial confession to the Lyman crimes to talk to Daw and O’Rourke about other crimes which occurred not in California, but in Utah. Anderson argues that the unrevealed taped conversation demonstrates that he invoked his right to remain silent about two separate murders in Utah to which he confessed two days later to Salt Lake County Officers, and which were then used by the State at the penalty phases of his trial to convince the jury to sentence him to death.

He claims that the taped conversations contain exculpatory evidence that was both favorable and material because what he said to the detectives about his willingness to talk to Utah officials could have been used under California law to suppress those damaging confessions, and that without those damaging confessions, his sentence in this case might well have been different. To determine whether Anderson’s Brady claim has merit, we must start with the salient facts. They are as follows: Anderson was arrested at 3:47 a.m. on Memorial Day. He was transported to the Sheriffs Fontana Substation at 5:15 a.m.

At about 6:00 a.m., Daw and O’Rourke fully advised him of his Miranda rights. He waived his rights and confessed to the Lyman crimes. At some point during this process, and after he had been advised of and waived his Miranda rights, Anderson volunteered that he wanted to tell the detectives about other murders he had committed in Utah, unsolved crimes about which Daw and O’Rourke had no knowledge. They asked him to hold off until they talked to him about the Lyman homicide. The Lyman interview ended at 6:45 a.m.

Then, at 7:04 a.m., Daw and O’Rourke readvised Anderson of his rights on a fresh tape and gave him an opportunity to talk about the murders he had tried to tell them about earlier. Because what was said is central to our analysis of both Anderson’s Brady claim and his claim that his subsequent confessions were the product of an unreasonable delay in his arraignment, we lay out the entire taped interview as it occurred on that morning over 20 years ago: O’Rourke: All right, the time is zero-seven-oh-four hours: Date: 5/26/80. We are at the Fon-tana Substation ... Present reporting officer Sergeant Dennis M.

O’Rourke, Detective Wes Daw and Stephen Anderson.... Steve, we just interviewed you reference another case and ... you indicated that you wanted to talk to myself and Detective Daw about ... some other cases occurring in other jurisdictions and basically, I would assume they were in Salt Lake City, Utah; is that correct? Anderson: ... Yes. O’Rourke: All right. Prior to ... discussing those incidents with you, which ... myself and Wes Daw had no personal knowledge of any of those cases involved ... I want to again advise you of the same rights that I just advised you ... reference our case. All right.

You have the absolute right to remain silent. Anything you say can and will be used as evidence against you in a court of law. You have the right to consult with an attorney, to be represented by an attorney, to have an attorney present before and during questioning. If you cannot afford an attorney, one will be appointed by the court free of charge to represent you before and during questioning, if you desire. All right, Steve, do you understand the rights I’ve just explained to you? Anderson: Yes. O’Rourke: All right.

With those rights in mind, are you willing to talk to myself and Detective Daw about the cases that you ... have knowledge of in Salt Lake City, Utah? Anderson: hhhh ... ah.... Like ... ah ... I think I oughta think about it. O’Rourke: Okay. Anderson: O’Rourke: I mean I’m not ... playin’ around right now, I just ... got to thinkin’ about it, you know, what you told me ... Um-hmm. Anderson: ... Right now I better wait and see what they got— O’Rourke: Of what who has? Anderson: Salt Lake. O’Rourke: Okay. Fine. Anderson: I mean ah ...

I didn’t mean to run you on no blind or game or nothin’ but ah ... somethin’ clicked when you was talkin’, you know, maybe I oughta wait. O’Rourke: Okay. All right, just ... briefly, let me run something by you so that I — I’m straight in my mind ... that ... you had indicated ah ... about a — some sort of a contract hit up in Salt Lake City, Utah. Ah ... Our intentions at this point, Steve, are, we’re gonna ... we’ll be in contact with Salt Lake City— Anderson: Uh-huh. O’Rourke: —or whoever — but we’ll have a teletype out on you some time today— Anderson: Uh-huh.

O’Rourke: —later this afternoon ... using ... the various names that you’ve used ... ah ... and the weapon that we have which ... apparently is a weapon used in our ... h-homicide will be test-fired here and will be available to other agencies, you know, as far as comparison ... bullets — whatever they have — I don’t know. Neither does Wes. Anderson: Uh-huh.

O’Rourke: We have no knowledge ... of any of the other cases ... and ... the only reason I’m talking to you now — and Wes is — is the fact that you indicated, you know, you wanted ta ... tell us everything and I told you that hey, we were willing to sit and listen, you know, to whatever you wanted to tell us. I still am. Anderson: Ah. O’Rourke: —as far as that goes. But again, that’s a decision you have to make and ... we’re not gonna try to make it for ya, or force you in any way to make any statement to us at all. Anderson: I know.

O’Rourke: But if you feel that you better wait until you find out what they have, that’s— that’s totally up to you.— Anderson: I — Right now I’m gonna ... well, it’s — it’s ... I think right now ... silence is virtue because ... well, it’s ... just better right now for me to wait. O’Rourke: Okay. All right. We’re gonna terminate this interview.

Both Daw and O’Rourke understood Anderson’s statements about wanting to see what Salt Lake City authorities had before he continued to talk about crimes in Utah as a request to talk to authorities from that jurisdiction. [ER 2451; SER 2076] Daw testified that he did not interpret what Anderson said as an invocation of his right to remain silent. [ER 2450] Daw said that he “reviewed [sic] it as a conditional response that he would talk to us later.” [ER 2455] Accordingly, O’Rourke called the Salt Lake City Police Department, which referred him in turn to the Salt Lake County Sheriff’s Office and eventually to Sergeant Jerry Thompson of that agency.

Thompson was familiar with Anderson as a walk-away escapee from Utah State Prison, and had knowledge of the two Utah killings for which Anderson claimed responsibility. Two days later, on May 28, 1980, Thompson traveled to San Bernardino to talk to Anderson. Their taped conversation began shortly after noon, and it opened with the usual ritual: This is Detective Jerry THOMPSON of the Salt Lake County Sheriffs Office. The date is 5-28 of 1980, and the time is 1216 hours. I am conducting an interview with one Steven Wayne ANDERSON, DOB is July 8th of ’53. He also uses the alias of Felix SMITH.

Present during the interview is Tom GLASSER from the District Attorney’s Office from San Bernardino, California, Sergeant Dennis O’ROURKE from the San Bernardino County Sheriffs Office, and Detective Wes DAW from the San Bernardino County Sheriffs Office. Q. At this time, Felix, I know you been advised of your Miranda rights, but I’m gonna advise ’em to you again for your own protection. You have the right to remain silent. Anything you say will be used in court as evidence against you. You’re entitled to talk to an attorney now and have him present now or at any time during the questioning.

If you cannot afford an attorney, one will be appointed for you without cost. Do you desire to consult with an attorney first or have one during the interview? A. No. Q. Okay, having your rights in mind, do you desire to go ahead and talk to me? A. Yes. Q. Has anyone threatened you or promised you anything to make this statement? A. No. Following this advisement and waiver of both the right to counsel and the right to remain silent, Anderson confessed — in narrative form punctuated by clarifying questions — to two homicides.

The first homicide was what Anderson described as the contract killing of Timothy Glashien, a killing commissioned by drug traffickers after Anderson’s walkaway escape from Utah State Prison. Anderson said he shot Glashien four times with the same handgun he had used to kill Elizabeth Lyman, and that he was paid $1,000 for his efforts. Scientific tests later confirmed his statements about the weapon he used. The second homicide for which Anderson took credit was the earlier stabbing death in Utah State Prison of Robert Blundell, fellow inmate for whom Anderson said he had no use.

Anderson got into an argument with Blundell in the kitchen area over Blundell’s reputation as a snitch. Blundell responded to Anderson with a sexual threat, after which Blundell left the area “to get some milk for his coffee.” Anderson picked up a kitchen knife, followed Blundell, and stabbed him to death.

Anderson explained to Thompson that he killed Blundell because “he got in my face at the wrong time and probly [sic] caught me in the wrong mood you might say.” [Def-00096] At the conclusion of this interview, Anderson explained his motive and intent for initiating this contact with Utah authorities and for confessing to these additional homicides: Q. (Thompson): ... Have I or has anyone else threatened you in order to make this statement or promised you anything? A. (Anderson): No. Q. You done it on your own free will? A. Yes. Q. After having your rights in mind? A. Yes.

I’d just like to say that, uh, I did, I uh, made these statements simply to, uh, clear up the fact that a lot of people tvere suspected, of the crimes that shouldn’t have been suspected. And that I had been informed of it by various people that it should be cleared up because they didn’t have anything to do with it. And that’s my main purpose here with these crimes in Utah, (emphases added).

Anderson asserts that the 7:04 a.m. conversation he had with Daw and O’Rourke contained both favorable and material evidence that he could have used under California law to suppress his confessions to the Glashien and Blundell homicides. He argues that the failure to notify his attorneys of this information prior to his trial violated the Brady rule. We respectfully disagree. The California case Anderson primarily relies on to establish both the favorability and the materiality of this evidence is People v. Pettingill, 21 Cal.3d 231, 238, 145 Cal.Rptr. 861, 578 P.2d 108 (1978).

Pettin-gill in turn relied on the seminal California case of People v. Fioritto, 68 Cal.2d 714, 719-720, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), which spawned the so-called “Fior-itto rule.” Under Pettingill and the Fior-itto rule, once a suspect indicated that he wanted to assert his privilege against self-incrimination, all police-initiated custodial interrogation must cease; and, any statement made thereafter was deemed to be involuntary and inadmissible, even if preceded by full Miranda warnings and waivers. See Pettingill, 21 Cal.3d at 240, 145 Cal.Rptr. 861, 578 P.2d 108.

Pettingill explicitly rejected the rule established by the Supreme Court in Michigan v. Mosley, 423 U.S. 96, 104-06, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), which allows the reinitiation of questioning by police after a suspect invokes his rights so long as certain factors are present: 1) The original interrogation was promptly terminated; 2) The interrogation resumed only after a significant passage of time; 3) The suspect was given Miranda warnings again; 4) A different officer resumed the questioning; and 5) The subsequent interrogation was limited to a crime not the subject of the first interrogation.

Pettingill, 21 Cal.3d. at 247, 145 Cal.Rptr. 861, 578 P.2d 108. The State urges us to follow Mosley in deciding this case, but the State’s reliance on Mosley is plainly incorrect.

Although federal habeas corpus concerns itself with violations of the Constitution and federal law, the Brady rule relies for its determination of both favorability and materiality on state law, not federal law; and the California Supreme Court in Pet-tingill made it clear that it was rejecting the Mosley approach in favor of a stricter standard based not on the Constitution of the United States, but on the Constitution of the State of California. Id. at 247^18, 145 Cal.Rptr. 861, 578 P.2d 108.

Thus, to decide whether the undisclosed information was favorable and material, we must look to the controlling law of California. See Brady, 373 U.S. at 88-91, 83 S.Ct. 1194; Fryer v. Nix, 775 F.2d 979, 984 n. 5 (8th Cir.1985). There are two insurmountable problems with Anderson’s Brady claim. First, he formally presented it to the Supreme Court of California in his habeas petition, and it was rejected on January 3, 1996.

The factual and legal essence of the claim he brings to federal court was designated in his brief to California’s highest court as claims E., H., and I. and supported by Exhibits 28 and 29, a transcript of the May 26, 1980, disputed conversation, and a tape recording of it, respectively. After taking judicial notice “of the appellate record in the underlying appeals,” the California Supreme Court denied claims E.

H., and I “on the merits.” Thus, to the extent that a Brady claim looks to the relevant state law for answers to certain critical questions, we have those answers in an authoritative determination from the Supreme Court of California itself: On the merits, Anderson’s claim that the undisclosed and newly-discovered evidence violated Brady in that it was both favorable and material is groundless.

The second problem with Anderson’s Brady claim is that our independent review of it, which we undertake only because of its close connection to his delayed arraignment claim, clearly demonstrates to us — as it did to the district court — that Anderson did not invoke his right to silence during the May 26, 1980, conversation in question.

The district court factually determined after hearing all the evidence that Anderson simply told the officers that he would wait to talk to Salt Lake City authorities, not that he had changed his mind and decided after all not to follow through on his volunteered desire to reveal what he had done in Utah. To quote the district court, Anderson clearly conveyed a willingness to discuss other crimes if a condition was met, i.e. he found out what information the Utah authorities had. O’Rourke informed Anderson that he was going to contact the Utah authorities.

He told Anderson that he and Daw were only talking to Anderson because he told them that he wanted to talk about the other crimes, and reiterated that he did not have to talk to them at all.

O’Rourke then terminated the interview and arranged for Anderson to be interviewed by Thompson. [ER 03554] Given this understanding of the facts, the district court concluded that “any failure to disclose the substance of the 7:04 a.m. interrogation to the defense did not violate Brady as the information contained therein was not favorable to the defense and thus was not material.” [ER 03555] In other words, the information as evidence could not have been successfully used in state court to suppress Anderson’s confessions to Sergeant Thompson. Anderson at all times knowingly waived his right to an attorney.

He agreed to talk to Daw and O’Rourke about the Lyman homicide, and he volunteered a desire to go beyond that interview with respect to other crimes about which San Bernardino authorities had no knowledge. The record conclusively refutes the contention that Anderson retreated from his desire to talk in favor of invoking his right to remain silent. In fact, Anderson testified in the second penalty phase that he talked to the officers about the Glashien killing because he had a pre-existing agreement with his confederates to do so should he ever get arrested, which we shall discuss in greater detail in

Part II of this opinion. San Bernardino authorities scrupulously respected his request to delay the conversation Anderson initiated, and when Sergeant Thompson appeared on the scene, he opened the conversation with fresh Miranda warnings and three simple preliminary questions to Anderson: Q. Do you desire to consult with an attorney first or have one during the interview? A. No. Q. Okay. Having your rights in mind, do you desire to go ahead and talk to me? A. Yes. Q. Has anyone threatened you or promised you anything to make this statement? A. No.

Simply put, this case is not similar to Pettingill, to Fimitto, or to any of the cases upon which Pettingill relies. In Pettingill, the subsequent interrogating officer “conceded that defendant had previously done nothing to indicate a desire to talk to him.” 21 Cal.3d at 236, 145 Cal. Rptr. 861, 578 P.2d 108. Pettingill himself explained that he waived his right during the third interrogation only because he “just wanted to get them off my back.” Id. We are unable to find any cases or principle in relevant California law that prohibit police from talking to a suspect when the suspect wishes to talk.

Pettin-gill itself contemplates a different rule for cases where “it is the suspect who initiates the renewed conversation with the police .... ” Id. at 241 n. 4, 145 Cal.Rptr. 861, 578 P.2d 108. In those circumstances, the test is only whether any ensuing confession was “involuntary in the traditional sense,” i.e., “the product of improper threats or promises of leniency made by the police during the first interrogation.” Id. (citation omitted).

It was Anderson who initiated and caused the visit of Salt Lake authorities to talk to him, and Sergeant Thompson quite appropriately opened the conversation by clarifying and confirming that Anderson still wanted to talk. Anderson himself has offered no contradictory evidence on this issue, either by way of testimony, declaration, or affidavit. This investigation was remarkably free of any pressure or tactics designed to induce Anderson to talk. No promises of leniency or threats were used to get Anderson to open up. His waivers were manifestly knowing and intelligent, and his confessions were plainly voluntary.

Moreover, we can discern no improper motive on behalf of any authority in withholding the tape. The San Bernardino authorities’ view that it contained no useful information to either side was eminently reasonable even though they now recognize that the better practice would have been to include it in the discovery. II Arraignment Anderson was arrested at 3:47 a.m. on Monday, May 26, 1980. He was not arraigned until Thursday, May 29, 1980, some seventy-six hours after he was taken into custody. Relying on County of Riverside v.

McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), decided eleven years after his arrest, Anderson argues that the State violated his Fourth Amendment rights by detaining him for more than 48 hours prior to arraignment. Anderson maintains that because the State procured his confession to the Blundell and Glashien homicides (“May 28th confessions”) as well as the incriminating interview with Dr.

Flanagan (“Flanagan Interview”) more than 48 hours after arrest, the May 28th confessions and the Flanagan Interview were obtained in violation of the Fourth Amendment and, therefore, should be suppressed as “fruit of the poisonous tree.” 1. Is this Fourth Amendment claim Cognizable as Part of a Petition for Writ of Habeas Corpus? Ordinarily, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), would require that we not hear this claim in a federal habeas corpus proceeding because it arises from the Fourth Amendment.

To quote the Supreme Court, [WJhere the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Id. at 482, 96 S.Ct. 3037.

Here, however, and primarily because this particular Fourth Amendment claim did not even exist until years after Anderson’s arrest and trials, we conclude that he did not benefit from the “opportunity for full and fair litigation” of it in California’s courts to which he was entitled. See United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027-29 (7th Cir.1993) (review of Fourth Amendment claim not barred because petitioner did not have an opportunity to establish standing because of an unforeseeable procedural rule preventing the state court from reaching the merits of the claim).

The California Supreme Court denied the claim because it could have been, but was not, raised on appeal. We held in Park v. California, 202 F.3d 1146, 1152-53 (9th Cir.2000), of course, that such a denial in 1996 did routinely entail a review by the Supreme Court of California of possible federal claims, but we are persuaded on these facts and circumstances that this kind of review falls short of the quality of litigation opportunity described in Stone. Thus, we proceed to the claim itself. 2. Can Anderson Raise McLaughlin’s 48-Hour Rule as an Issue? In Gerstein v.

Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended detention following a warrantless arrest. Subsequently, in McLaughlin, the Court clarified its holding in Gerstein by defining “prompt.” Specifically, the Court held that “judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661.

The McLaughlin Court emphasized that this 48-Hour Rule is not absolute. As the Court explained: This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. Id.

If the probable cause determination does not occur within 48 hours, however, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57, 111 S.Ct. 1661. The Court cautioned that neither intervening weekends, nor the time required to consolidate pretrial proceedings qualifies as an “extraordinary circumstance.” Id. Three year’s later, the Court decided Powell v.

Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994), in which it held that McLaughlin applied retroactively to all cases pending on direct review or not yet final when McLaughlin was decided. Powell, 511 U.S. at 84-85, 114 S.Ct. 1280; see also Griffith, 479 U.S. at 328, 107 S.Ct. 708 (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct reviews or not yet final.”).

However, Poiuell specifically left open the question whether suppression is the appropriate remedy for a McLaughlin Fourth Amendment violation, see Powell, 511 U.S. at 85, 114 S.Ct. 1280, and the Supreme Court has not yet resolved this issue. Here, Anderson contends that he is entitled to raise a McLaughlin claim even though he did not raise a delayed arraignment claim of any kind in state court. He stakes his entitlement to such a delayed claim on the ground that his conviction was not final at the time McLaughlin was announced. Anderson is correct.

The Supreme Court rendered its decision in McLaughlin on May 13, 1991, but Anderson’s petition for certiorari in the United States Supreme Court was not denied until October 7, 1991, almost five months later. Thus, Anderson’s conviction was not final, see Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708, and McLaughlin’s 48 Hour-Rule applies. See Powell, 511 U.S. at 84-85, 114 S.Ct. 1280. The State asserts that McLaughlin cannot apply to this case because, unlike the appellant in Powell, Anderson did not raise a federal delayed arraignment claim until 1994, when he filed his initial habeas corpus petition.

We disagree. Relying on Griffith, the Powell Court held that the 48-Hour Rule would apply to all cases that were pending on direct review or not yet final when McLaughlin was decided. Id. at 84-85, 114 S.Ct. 1280. Clearly, the Court did not limit its holding to cases in which the appellant raised the delayed arraignment issue below. Accordingly, we conclude that the law allows Anderson to raise a delayed McLaughlin claim. The arguments made by the State do not dictate otherwise, although as we shall see, they do have an impact on the choice of a remedy in this case. 3.

Did the State Violate Anderson’s Fourth Amendment Rights? As discussed above, McLaughlin held that if the probable cause determination does not occur within 48 hours, the government has the burden of demonstrating the existence of a bona fide emergency or other extraordinary circumstance. McLaughlin, 500 U.S. at 57, 111 S.Ct. 1661. In this case, Anderson was arrested on May 26 at 3:47 a.m., but was not arraigned until the morning of May 29, approximately 76 hours later. As such, the State must furnish a valid excuse for this delay. Id. The State has not borne that burden.

The McLaughlin Court made clear that intervening weekends or holidays would not qualify as an extraordinary circumstance, so the State cannot argue that the delay was reasonable on the ground that May 26 was Memorial Day. Instead, the State maintains that: even if the delay was for the purpose of obtaining the Thompson confession and Flanagan evaluation, such were not impermissible reasons, and they did not render the delay “unreasonable”.... The confession Appellant made to Detective Jerry Thompson pertained solely to the Utah killings.

Those killings, in turn, assisted the prosecution in making the charging decision (i.e., capital case or not).

Under McLaughlin’s 48-Hour Rule, however, the delay was presumptively “unreasonable.” Furthermore, the State’s explanation that arraignment was delayed because law enforcement was collecting evidence about the Utah killings in order to aid in the decision whether to charge Anderson with a capital offense does not qualify as an “emergency or other extraordinary circumstance.” In fact, courts have held in recent cases that it is improper to delay arraignment in order to investigate the suspect’s participation in “additional crimes” (i.e., crimes that were not the basis for arrest). See United States v.

Davis, 174 F.3d 941, 945 (8th Cir.1999); Willis v. City of Chicago, 999 F.2d 284, 289 (7th Cir.1993). But see United States v. Sholola, 124 F.3d 803, 823 (7th Cir.1997) (Wood, J., concurring) (“I therefore regard the majority’s statement ... that the police may always hold an individual ‘while investigating other crimes that he may have committed, so long as they have sufficient evidence to justify holding the individual in custody in the first place,’ as inconsistent with the holding of Willis.”).

Moreover, as Anderson points out, California law does not require that special circumstances be charged at arraignment, and, in this case, the prosecution did not charge Anderson with a capital offense until two months after arraignment. Thus, because the State did not rebut the presumption that the 76 hour delay was unreasonable, we conclude that the State violated Anderson’s Fourth Amendment rights under McLaughlin. 4. What is the Appropriate Remedy for a McLaughlin Violation?

The next issue we must resolve is what the appropriate remedy is for a failure promptly to arraign an arrestee in connection with statements made by him past the time that the delay was reasonable. As indicated, the Supreme Court has not spoken on this subject, leaving it unresolved in Powell v. Nevada. As an initial matter, however, it is well settled that a McLaughlin violation arises from the Fourth Amendment. See McLaughlin, 500 U.S. at 47, 111 S.Ct. 1661; Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Although suppression of evidence has been a preferred remedy for a Fourth Amendment violation, see Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), it is not the automatic remedy for any such violation. See Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (“The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”) (quoting Illinois v.

Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The answer lies in the very purpose of the exclusionary rule; it is based in large part on the need, and the ability, to guide police conduct. See United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (exclusionary rule not applicable because police error not intentional). The Supreme Court demonstrated the application of this aspect of the exclusionary rule in New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). In Harris, the defendant made a statement after an warrantless in-home arrest.

Warrantless in-home arrests are of course illegal under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), although Harris’s arrest was supported by probable cause. The Court held that, because the statement was not made in the home and because police had probable cause to arrest, the statement was not subject to suppression.

Four years later in Powell, the Supreme Court framed the holding in Harris: “In Harris, we held that violation of the Fourth Amendment’s rule against warrantless arrests in a dwelling ... generally does not lead to the suppression of a post-arrest conviction.” 511 U.S. at 85 n. *, 114 S.Ct. 1280 (citation omitted).

But the Court went on to distinguish the McLaughlin situation from Harris, noting that McLaughlin “targets a different constitutional violation-failure to obtain authorization from a magistrate for a significant period of pretrial detention.” Based on the above analysis, we conclude that the appropriate remedy for a McLaughlin violation is the exclusion of the evidence in question — if it was “fruit of the poisonous tree.” This approach ensures that courts will not suppress evidence causally unrelated to the Fourth Amendment violation.

At the same time, this test protects the arraignment right in question by barring any exploitation of the delay that causally produces a statement. Our conclusion rests upon Brown v. Illinois, which explained the interplay between the Fourth and Fifth Amendments in the suppression context: Although, almost 90 years ago, the Court observed that the Fifth Amendment is in intimate relation with the Fourth, the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights.

Frequently, as here, rights under the two Amendments may appear to coalesce since the unreasonable searches and seizures condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment. The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.

It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion, of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation. Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains.

In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ] requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be sufficiently

an act of free will to purge the primary taint. Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment. Brown, 422 U.S. at 601-02, 95 S.Ct. 2254 (internal citations and quotation marks omitted) (emphasis added). Under the “fruit of the poisonous tree” test, the question is whether the confession was obtained by exploitation of the Fourth Amendment violation, or “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. 407. A confession obtained during an unreasonable detention is subject to suppression unless it “was sufficiently

an act of free tuill to purge the primary taint of the unlawful invasion.” Id. at 486, 83 S.Ct. 407 (emphasis added); see Powell v. State, 113 Nev. 41, 930 P.2d 1123, 1126 (Nev.1997) (“The government has the burden of showing a ‘sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.’ ”) (quoting Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)).

In Brown, the Supreme Court set forth the following factors for courts to consider in answering this question: (1) the presence or absence of Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04, 95 S.Ct. 2254.

In delineating the “fruit of the poisonous tree” analysis, the Brown Court stated also that the “voluntariness of the statement is a threshold requirement,” and that the government has the burden of proving the admissibility of the challenged confession. Id. at 604, 95 S.Ct. 2254. To summarize, courts utilizing the “fruit of the poisonous tree” test with respect to a subsequent statement must determine (1) whether the statement was voluntary, not simply whether it occurred during the detention, and (2) whether it was either (

a) the causal product of the violation, or (

b) sufficiently

an act of free will to delink it from the primary taint. 5. Were Anderson’s Confessions to Thompson Fruit of his Extended Detention? On this record, we conclude in Brown terms that the Utah confessions were not only voluntary, but also that they were uniquely the product of Anderson’s untainted free will, not the harvest of his extended incarceration before arraignment, and not the fruit of flagrant or inappropriately purposeful exploitation of any illegality. Drawing on our discussion in

Part I of this opinion about the context of these confessions, we so conclude for the following reasons. As a threshold matter before we get to the Brown factors, Anderson’s confessions were clearly voluntary. No one avulsed this information from him. In fact, when his attorney, Ames, was asked during the habeas evidentiary hearing about his client’s confessions to the Utah killings, Ames testified that Anderson had confirmed that his confessions to Thompson were not only free and voluntary, but volunteered: Q. (By Mr.

Gonzalez to Ames) Did you ask [Anderson] if any of the confessions or information he gave to the detectives was done in an involuntary manner? A. (By Mr. Ames) Yes. Q. And what did he say? A. He said no, he volunteered the information. Q. Did you ask him if he was ever coerced in any manner by any of these police officers involved in this case? A. He said he was not. As to the four Brown factors, our analysis is as follows: First, a fresh set of Miranda warnings was given to Anderson immediately before the Utah confessions.

He was then asked if he wanted to talk, and he answered, “Yes.” Not only did Anderson clearly waive his rights, but he confirmed that he was talking of his own free will, and that he had a pre-existing independent reason for injecting this subject into the San Ber-nardino investigation. This satisfies the first of Brown’s four attenuation factors. Second, it is clear that Brown’s “temporal proximity” factor weighs in Anderson’s favor. The confessions occurred at a time when, as we learned almost a decade after Anderson’s arrest, he should already have been arraigned.

Third, this case involves a distinctive set of facts and circumstances that sets it apart from the usual case in terms of whether a statement is causally linked to a violation. The distinction is this: Anderson volunteered a desire to tell the deputies about the Utah crimes. He did so soon after a lawful arrest, after advice of rights, and while his detention was plainly legal. The tree from which the fruit ultimately fell was a tree not only free of illegality or misconduct, but offered up by Anderson at a time prior to the arraignment violation.

The chain of causation actually started before the violation of his right to be arraigned. The San Bernardino deputies had no independent information about these crimes. Indeed, they were committed in a different jurisdiction. Anderson was not under arrest or under suspicion for these crimes when he said he wanted to discuss them. In fact, and according to Anderson’s trial testimony in 1986, the Utah confessions were the direct product of a pre-existing agreement he had with the people who had made successful his escape from the Utah State Prison.

The alleged agreement was to speak up and “take the rap” for the Glashien homicide if he ever got caught for some other crime. Here is how Anderson explained the agreement: Q. (By Mr. Glazier to Anderson) And you told us [on direct examination] that the debt you owed — well, tell us about that debt you owed and why you admitted to killing Glash-ien. A. When I escaped, walked away, however you want to look at it, from the Utah State Prison, they were looking for me, the law enforcement authorities were looking for me. And these people hid me. And they went through a lot.

They — in fact, one man’s house, I guess you can call it, raided because they thought I was there. And I stayed in the mountains in Mill Creek Canyon for several days. And they supplied me with what I needed and took care of me. And then eventually got me out of town when the heat died down. Q. Didn’t you tell us that you were asked to take — you were asked to take the rap for the Glashien killing by people in Utah, and you said yes, that if you were arrested— A. Yes. That’s what happened. Q. You testified to that? A. Yes. Just yesterday or the day before. Q.

Now, as a burglar you know the difference between the punishment for burglary and murder, don’t you? A. Yes, I do. Q. And yet because of that obligation, people had told you if you were arrested — and I assume that you’re talking about the possibility of being arrested for burglary because you didn’t anticipate killing anybody, did you? A. No. Q. So that if you were arrested for burglary, that as a good guy and to fulfill responsibility and the debt that you had, you were going to step up to the rap for a murder? A. Yes. Q.

And you told us that you were going to do that to fulfill that obligation just if you were arrested, regardless of what the charge was? Is that true? A. Yes. Q. But it was your understanding that they had said, “We want you to take the rap for it?” A. That was an agreement we had, yes. Q. But you didn’t ever go to law enforcement voluntarily and say, “I did it,” until you were captured, did you? A. No. I had no intention of doing that. No. Q. You weren’t going to be that generous, were you? A. No. Q. You were going to wait until somebody caught you.

And then at that point be the benefactor of those individuals up in Utah? A. Yes. (emphases added). Anderson contemporaneously alluded to this debt or obligation on May 28, 1980, at the close of his statement to Thompson: Q. (Thompson) ... Have I or has anyone else threatened you in order to make this statement or promised you anything? A. (Anderson) No. Q. You done it on your own free will? A. Yes. Q. After having your rights in mind? A. Yes.

I’d just like to say that, uh, I did, I uh, made these statements simply to, uh, clear up the fact that a lot of people were suspected of the crimes that shouldn’t had been suspected. And that I have been informed of it by various people that it should be cleared up because they didn’t have anything to do with it. And that’s my main purpose here with these crimes in Utah, (emphases added). After Thompson arrived on the scene and advised Anderson of his right to remain silent, and after Anderson said he did not want to consult an attorney or have one with him during the interview, Thompson asked Anderson, “Okay.

Having your rights in mind do you desire to go ahead and talk to me?” Anderson’s answer was, “Yes.” This exchange indicates without any doubt that Anderson remained steadfast in his pre-detention decision to exonerate his friends if and when he got caught. Whether he was telling the truth about his

part in Glashien’s murder, of course, was for the jury to decide. When Anderson said previously on May 26, 1980, that he wanted to wait to talk about the crimes in order to see what the Utah authorities had, he said, “Well, it’s just better right now for me to wait” — -not “I have changed my mind and decided not to talk.” As indicated earlier, this conduct was not the equivalent of an assertion of the right to remain silent as to the Utah crimes. To the contrary, Anderson was clearly in control of his own decisions and exercising untrammeled free will.

The delay, then, was occasioned by the time it took Thompson to arrive on the scene. This delay was attributable to Anderson’s behavior and desires, not to any misconduct on the part of any law enforcement officials. Anderson was the one who wanted to wait, not the deputies; and it was his request for delay that caused the confessions to occur during his extended detention.

The district court made the factual findings that Anderson’s statements during the 7:04 a.m. interview on May 26, 1980, “did not constitute an unequivocal assertion of the right to remain silent,” and that Anderson informed O’Rourke and Daw that “he would be willing to discuss the LUtah] crimes when he found out what the Salt Lake City authorities had.” [Er. 08554]. We believe these findings not only to be not clearly erroneous, but fully supported by the evidence developed during the evidentiary hearing. To conclude that a statement was volunteered is not just another way of saying that it was voluntary.

Certainly all volunteered statements are normally voluntary, but not all voluntary statements are volunteered — far from it. The definition of “to volunteer” is “to give up or offer to give up on one’s own initiative,” “to enter into or offer to enter into a venture of one’s own free will.” Webster’s II New Riverside University Dictionary (1984). This distinction is critical when the issue is whether

an act is sufficiently a matter of free will to be purged of the primary taint, such as the inquiry is here. Anderson’s independent and continuing purpose, however one might regard it, was freely discharged and causally unconnected to the detention on the San Bernardino murder. To reiterate, it is here that we find the tree from which the confessions fell as fruit, not in the failure promptly to arraign.

In Brown terms, his purpose in confessing to extraneous crimes — to become if a benefactor of his friends — was an intervening and continuing circumstance that manifestly outweighs and overrides the temporal proximity factor. The factor that caused him to talk about the Utah crimes was his capture, not the delayed arraignment. In terms of its particular facts and circumstances, this appears to be the situation the Supreme Court had in mind when it said in Brown, “It is entirely possible ... that persons arrested illegally may decide to confess as

an act of free will unaffected by the initial illegality.” Brown, 422 U.S. at 603, 95 S.Ct. 2254. Fourth, we are simply unable to identify any knowing and willful or flagrant constitutional misconduct to deter. Id. at 604, 95 S.Ct. 2254, (“The purpose and flagrancy of the official misconduct are all relevant.”) There may have existed a “but for” relationship between the extended detention and the confessions, which is debatable given Anderson’s overriding resolve to exonerate his friends as soon as he was caught, but no legally cognizable causal connection.

According to Ames and his client, Anderson had previously decided to confess to the Utah murder if he was ever arrested. Anderson fulfilled his promise by volunteering to speak about the Utah killing before any improper detention. The officers did delay his arraignment, but they did not do so in purposeful violation of a specific rule on the books at that time. To impose the exclusionary rule on this set of facts would not serve the rule’s purposes at all. Anderson did not raise until almost fourteen years after his first trial any Fourth Amendment delayed arraignment claim.

In fact, not until his appearance in federal court did he make it an issue. See People v. Anderson, 52 Cal.3d 453, 276 Cal.Rptr. 356, 801 P.2d 1107 (1990). All of this can easily be explained: He did not have a viable recognized federal claim of this kind until 1991 at the earliest. Ames testified at the evidentiary hearing in district court that he was well aware of California law that required a defendant to show prejudice over and above the delay in order to be entitled to relief. See People v. Turner, 8 Cal.4th 137, 175, 32 Cal.Rptr.2d 762, 878 P.2d 521 (1994); People v.

Harris, 28 Cal.3d 935, 953, 171 Cal.Rptr. 679, 623 P.2d 240 (1981). Ames testified that he chose not to try to suppress the Utah confessions because he believed that he could show no prejudice from the delay. The district court concluded that “Ames’s decision not to seek to suppress Anderson’s confession on delay in arraignment grounds was an informed strategic decision which the court will not second-guess.” [Er. 03557]. Deterrence best serves its remedial purpose when it serves as a remedy for a constitutional wrong which officers either knew or should have known was against the law.

To punish police (and society) twenty years after an event on the basis of rules not clearly defined and established at the time of the occurrence actually dis-serves the purpose of deterrence by rendering it irrational. See Leon, 468 U.S. at 908, 104 S.Ct. 8405, (“Indiscriminate application of the exclusionary rule ... may well generate] disrespect for the law and administration of justice.”). Moreover, we are now in the year 2000.

Law enforcement officers currently have many years of the McLaughlin rule under their collective belt, and we discount entirely that idea that the suppression of the confessions in this case will add to their education. This is especially so in a case where the source of the confession was solely the defendant’s gratuitous offering. Accordingly, Brown’s final factor weighs in favor of the State. In

summary, and in the words of Wong Sun, 371 U.S. at 488, 83 S.Ct. 407, this disputed evidence was obtained not by exploitation of any unconstitutional violation, but by means sufficiently attenuated from the illegality — Anderson’s manifest exercise of free will — so as to be untouched by any taint. See also United States v. Manuel, 706 F.2d 908, 911 (9th Cir.1983) (the voluntary nature of statements made after a questionable arrest and the lack of flagrant police misconduct or pressure to confess serve to attenuate any taint of previous illegality). As to the interview by Dr.

Flanagan, however, we come to a different intermediate conclusion, but not a different result. The Flanagan interview was not the product of Anderson’s free will. Its dual purpose was to elicit information from him that could be used against him at trial and to restrict his options by curtailing any mental defenses that he might have raised. The deputies took advantage of and exploited the delayed arraignment to generate this evidence, and we conclude that the causal link between the detention and the evidence required to invoke the exclusionary rule does exist.

Nevertheless, we conclude in the light of the entire record that the admission and use by the prosecutor of Dr. Flanagan’s testimony did not inflict any substantial or injurious damage to Anderson’s case because we are convinced that the doctor’s testimony “did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); United States v. Garibay, 143 F.3d 534, 539 (9th Cir.1998). Dr. Flanagan simply characterized Anderson’s behavior and described his personality.

The prosecution’s purpose in introducing this testimony was preemptively to remove any psychiatric or mental disease or defect defenses that the defense might offer. But here, the defense neither offered — nor for that matter intended to offer — such a defense. The reason for the defense’s decision to eschew any such defenses stemmed from Anderson’s adamant statements to Ames that he did not want to offer an insanity plea. Thus, Dr. Flanagan’s testimony about Anderson’s personality in no way interfered with the defense. Ames’s explanation for his failure to object to Dr.

Flanagan’s opinions at the second trial was, “I felt they didn’t hurt me at trial because my defense was not based on anything that he was giving an opinion on.... His opinions regarding diminished capacity, insanity, those sorts of things or what he was saying did not enter into any of the theories of the defense that I was going to present to the jury.” [SER 2425, 2426]. Moreover, Dr. Flanagan’s testimony was merely a shadow or a reflection of what was otherwise in the record, most of which came directly from Anderson himself in his detailed and clear-headed confessions to three separate murders.

Anderson told the detectives that he was either “born or trained to be a killer;” and that he “always wanted to be a killer.” Anderson, 52 Cal.3d at 465, 276 CaLRptr. 356, 801 P.2d 1107. It did not take Dr. Flanagan’s testimony that Anderson had an “anti-social personality” or that he was self-absorbed and impulsive to establish for the jury what they could already deduce. Dr.

Flanagan opined also that Anderson did not suffer from “any mental disease or defect that would substantially impair his capacity to appreciate the nature of his conduct....” This, too, the jury could easily extract from his confessions and his behavior. Measured against the State’s entire case and the nature of the defense, Dr. Flanagan’s testimony was patently insignificant. Ill Challenge to Comments on Procedural History of the Case Anderson’s next claim is that, under Caldwell v.

Mississippi 472 U.S. 320, 339-40, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the trial judge violated his constitutional rights during the second trial by commenting on the procedural history of the case in a way that diminishes the jurors’ responsibility for the sentencing decision. The State maintains, however, that because the California Supreme Court already denied this claim on procedural grounds, this court should not consider it. Although we ultimately conclude that Anderson’s Caldwell claim fañs, we believe that the claim is not procedurally defaulted, and that we must address the merits. 1.

Procedural Default “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 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.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added).

In this case, the California Supreme Court denied Anderson’s Caldwell claim on the ground that Anderson’s counsel failed to object to the trial judge’s comments, thereby waiving this claim. People v. Anderson, 52 Cal.3d 453, 468, 276 Cal.Rptr. 356, 801 P.2d 1107 (1990). Thus, if this waiver rule invoked by the Anderson court is “an independent and adequate state procedural rule,” then the Caldivell claim is procedurally defaulted. In order for a state procedural rule to be “adequate,” it “must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied.” Ford v.

Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). This means that the question is whether the state courts were regularly and consistently applying the relevant procedural default rule “at the time the claim should have been raised.” Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997). Here, the allegedly improper comments were made during Anderson’s second trial, which took place in late 1985 and early 1986, only about six months after the Supreme Court rendered its decision in Caldwell.

Not surprisingly, then, the “rule” that a defendant waives a Caldwell claim by failing to object when the comments are made was not “firmly established and regularly followed” at the time of Anderson’s second trial. In fact, it appears that this rule still is not consistently applied. See People v. Jackson, 13 Cal.4th 1164, 1238, 56 Cal.Rptr.2d 49, 920 P.2d 1254 (1996) (“The fact that defendant did not make a contemporaneous objection to the proseeution’s remarks does not bar him from raising a claim of Caldwell error on appeal.”); People v.

Clark, 5 Cal.4th 950, 1035, 22 Cal.Rptr.2d 689, 857 P.2d 1099 (1993) (“We have never required an objection to raise claims of error based upon Caldwell v. Mississippi”) (internal citations and quotation marks omitted); People v. Bittaker, 48 Cal.3d 1046, 1103, 259 Cal.Rptr. 630, 774 P.2d 659 (1989) (same). But see People v. Freeman, 8 Cal.4th 450, 523, 34 Cal.Rptr.2d 558, 882 P.2d 249 (1994) (holding Caldwell claim waived because there was no objection); People v. Poggi 45 Cal.3d 306, 340, 246 Cal.Rptr. 886, 753 P.2d 1082 (1988) (same).

Accordingly, we conclude that the waiver rule is not an adequate state ground to bar federal review of Anderson’s Caldwell claim. 2. Caldwell Claim In Caldivell, the Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell, 472 U.S. at 328-29, 105 S.Ct. 2633.

More recently, the Court has said that it “read[s] Caldwell as ‘relevant only to certain types of comment[s] — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.’ ” Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Thus, to establish a Caldwell violation, a defendant must show that the remarks to the jury “improperly described the role assigned to the jury by local law.” Dugger v.

Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); see also Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir.1992).

Here, Anderson’s Caldwell claim is based on the judge’s comments during voir dire at the beginning of Anderson’s second penalty phase trial (1) that Anderson’s prior death sentence was reversed because of “technical questions in connection of [sic] the penalty,” and (2) that the prior death sentence “went up automatically on appeal to the California Supreme Court, as all such cases do.” According to Anderson, these comments “misled the jury to believe that Anderson’s sentence would ultimately be decided by the same appeals court that had reversed the prior death sentence and with which the ultimate responsibility for sentencing lay.” This argument is unpersuasive.

While it is true that the judge made the comments Anderson complains about, such comments are insufficient to establish a Caldwell claim, particularly when viewed within the context of the entire trial. See Sawyer v. Butler, 881 F.2d 1273, 1286 (5th Cir.1989). On the first day of jury selection in Anderson’s retrial, the judge addressed the jury and said the following: There has been a previous trial of this matter and he has been convicted of first degree murder. But the matter has to be retried on the question of — on the technical questions in connection of [sic] the penalty. ER at 1436 (emphasis added).

However, the court then went on to explain in great detail why the California Supreme Court reversed Anderson’s death sentence. In this particular case, in the first trial, the jury found the defendant guilty of first degree murder.... They found true the allegation of special circumstances, and that allegation was that the killing was committed in the course of a first degree burglary. It’s what they called a felony murder rule, where if you kill somebody in the course of certain crimes, including first degree burglary, it’s automatically first degree murder.

And that was also a special circumstance which brought into play the death penalty- The jury then tried the penalty phase and they returned a verdict of death and the defendant was sentenced to death. However, about that time some of the rules applying to felony murder were changed. And so the Supreme Court sent it back for directions for us to retry the special circumstance issue and the penalty phase issue in light of the new rules.

The new rules require that before a special circumstance of felony murder can be found true, the district attorney must prove and the jury must specifically find that the killing was done intentionally. You see, under the old felony murder rule, even an accidental killing would bring into play the felony murder rule and the death penalty. But the Supreme Court said that no, in order for the death penalty to come into play — in other words, the special circumstance to be found to be true — the jury must have proof before them and they must be satisfied beyond a reasonable doubt that the killing was intentional.

ER at 1442-43. In light of this careful and deliberate explanation of the state supreme court’s legal reasoning, we conclude that the judge’s one-time use of the word “technical” in no way misled the jury, much less “in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Romano, 512 U.S. at 9, 114 S.Ct. 2004 (internal quotation marks omitted). Anderson argues also that the trial judge violated his Eighth Amendment rights when he told the jurors: So they had a penalty trial, penalty phase of trial.

And the jury returned a verdict indicating that the defendant should suffer the death penalty. That went up automatically on appeal to the California Supreme Court, as all such cases do. ER at 1474 (emphasis added). In making this argument, Anderson relies heavily on Justice O’Connor’s concurring opinion in Caldwell, where she said that “[l]ayper-sons cannot be expected to appreciate without explanation the limited nature of appellate review, especially in light of the reassuring picture of ‘automatic’ review evoked by the sentencing court and prosecutor in this case.” Caldwell, 472 U.S. at 343, 105 S.Ct. 2633.

Furthermore, Justice O’Connor warned that “[jjurors may harbor misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury’s sentence of death.” Id. at 342, 105 S.Ct. 2633. The relevant facts of Caldwell, however, differ markedly from the facts of this case. In Caldwell, the prosecutor argued the following during his closing: Ladies and gentlemen ... I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair.... I think the lawyers know better.

Now, they would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it_ For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it’s unfair and I don’t mind telling them so. Id. at 325-26,105 S.Ct. 2633.

Unlike in Caldwell, here, the judge’s comments about automatic appeal did not lead the jury “to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 329, 105 S.Ct. 2633. Quite to the contrary, the judge made it clear that the jurors must decide whether the special circumstance is true and, if so, whether Anderson deserved life imprisonment or death.

For example, with regard to the special circumstance, the judge said: So we’re going to have a .trial on the limited issue of whether or not at the time the defendant killed the elderly woman, shot and killed her, whether he intended to kill her. And there are a lot o[f] explanations, potential theoretical explanations other than intent to kill. For instance, accidental. Or maybe he was just shooting to scare her or something of this sort with no intent to kill her at all.

So the jury will hear all the evidence, what happened exactly in detail, and will have to make up their mind whether they are all twelve satisfied beyond a reasonable doubt that at the time of this shooting he intended to kill her. ER at 1475; 2RT at 950. Similarly, the court explicated that it was the jury’s responsibility to determine the appropriate penalty for Anderson. [I]f the jury finds he did intend to kill the woman he shot, then that makes him eligible for the two most severe penalties we have.

Either he can be imprisoned in State Prison for the rest of his natural life with no possibility of parole ever. Just he’ll die in prison. Or he can be put to death in the gas chamber. Those are the only two choices we have once we get to that point. 2RT at 950-52. Thus, considering the judge’s comment about automatic appeal in the context of the entire trial, it is clear that the remark did not “improperly de-scribe[ ] the role assigned to the jury....” Dugger, 489 U.S. at 407, 109 S.Ct. 1211. The law requires, rather unusually, that a jury select the penalty.

Ordinarily the jury is told not to even consider penalty.... So the jury, then, will be expected to make a decision between those two penalties based upon the evidence you’ve heard in both phases of the trial; that is, the circumstances of the killing and the background information about the Defendant himself. Finally, we conclude that Anderson suffered no prejudice from the trial judge’s remarks because he himself intended to tell the jury of his death row incarceration and experiences as part of what is known in California as a “Death Row redemption” defense.

This defense presents the defendant to the jury as a different person, a person rehabilitated by death row and thus no longer a candidate for death. As the California Supreme Court observed in deciphering Ames’s failure to object to the trial judge’s remarks, [I]t seems apparent that defense counsel herein had a tactical purpose for declining to object to the court’s disclosures regarding defendant’s death sentence and subsequent reversal on automatic appeal.

During the course of trial and in argument, counsel frequently referred to the prior death sentence and ... presented a ‘Death Row redemption’ defense stressing defendant’s changed attitude, reformed character and his many useful, redeemable skills. For example, counsel asked defendant whether his ‘thinking’ had changed during the five years since he was sentenced to death. Defendant replied that ‘the experience of being condemned to die made me grow up and realize that it was a serious matter. And I matured. And I realized there’s more to life than living and the life that I had lived.

And maybe I had a chance to change.’ Regarding the reference to the automatic appeal, it is true that ‘[a]s a general rule, the jury should not be advised regarding the availability of an appeal in death cases, because such information may dilute the jury’s sense of responsibility in fixing the penalty.’ But any reasonable juror, knowing that defendant was once sentenced to death and was now being retried for the same crimes, could easily infer that an appeal was available to him. We conclude that any error in the court’s pretrial disclosures was waived by counsel’s apparently tactical failure to object.

We further conclude that it is not reasonably possible defendant was prejudiced by those disclosures. People v. Anderson, 52 Cal.3d 453 at 468, 276 Cal.Rptr. 356, 801 P.2d 1107 (1990) (citations omitted). Accordingly, we reject Anderson’s Caldwell claim. IV Lack of Jury Instruction on Lesser-included Offenses Anderson’s third claim on appeal is that the district court erred in concluding that the state trial court correctly instructed the jury.

Specifically, Anderson argues that because he asserted a diminished capacity defense during the guilty phase of his first trial in 1981, the state court was also required to instruct the jury on lesser-included offenses to felony murder, and its failure to do so violated the Eighth Amendment as construed in Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This argument is unpersuasive. Federal review of an allegedly erroneous jury instruction challenged collaterally is extremely limited. Under Brecht v.

Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the standard for determining whether habeas relief should be granted in a 28 U.S.C. § 2254 petition is whether the alleged (non-structural) trial errors “had substantial and injurious effect or influence in determining the jury’s verdict.” See Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000) (Brecht standard should apply uniformly in all federal habeas corpus cases under 28 U.S.C. § 2254). Trial errors that do not meet this test are deemed harmless. Eslaminia v. White, 136 F.3d 1234, 1237 (9th Cir.1998).

This deferential standard is controlling here. Anderson claims that, under Beck, the state trial court was required to give a jury instruction on lesser-included offenses of felony murder in the guilt phase of his first trial. In Beck, the Supreme Court held that, in a capital case, due process requires the court to give a lesser included offense instruction if the evidence would support a conviction on that offense. 447 U.S. at 638, 100 S.Ct. 2382; see also Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

The challenged Alabama law at issue in Beck prohibited giving lesser included offense instructions in capital cases. 447 U.S. at 628-29, 100 S.Ct. 2382. Essentially, the Alabama law was an all-or-nothing rule that provided juries in capital cases with only two options: (1) find the defendant guilty of capital murder and automatically sentence the defendant to death, or (2) acquit the defendant. Id. at 642-43, 100 S.Ct. 2382. This rule, the Supreme Court held, provided for possibly unreliable results and was therefore constitutionally infirm. Id. at 637-38,100 S.Ct. 2382.

At Anderson’s first trial, there was evidence from his confessions and testimony by investigating officers that Anderson had consumed two half-pints of vodka the evening of the burglary. See ER at 1176-89. As such, because the state trial court found that there was “evidence of possible diminished capacity,” see ER at 1282, it gave a diminished capacity instruction to the jury. Id. Anderson argues that because the court gave this instruction, it was also required to instruct on lesser-included offenses to felony murder.

Otherwise, Anderson argues, the jury would be required to find Anderson guilty of both burglary and murder or, if the jury agreed that his capacity was diminished, to acquit him of both burglary and murder. Anderson asserts that this choice, without a third option to acquit of burglary, but convict on a charge of second-degree murder or manslaughter, violates Beck. Anderson’s case, however, is distinguishable from Beck for three reasons. First, Beck only applies to cases where the evidence would support a conviction on the lesser-included offense. 447 U.S. at 638, 100 S.Ct. 2382; see also Clabourne v.

Lewis, 64 F.3d 1373, 1380 (9th Cir.1995) (noting that it is plain error for the court to fail to give a lesser included instruction on second-degree murder in a capital case “where the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater”) (internal quotations omitted). Here, although Ames did not specifically request a lesser-included offense instruction, he did ask the court to tell the jury that the “defendant may be found guilty or not guilty of either or both of the offenses charged” — i.e., burglary and first-degree murder. 1RT at 2627.

This instruction was akin to a lesser-included offense instruction in that it would have allowed the jury to find Anderson innocent of burglary, but guilty of murder, which would have made Anderson ineligible for the death penalty.

The trial court refused to give the instruction requested by Ames, explaining that it was not warranted because “I know of no factual situation in this case where [the jury] could find that the defendant is innocent of burglary but guilty of murder.” Given Anderson’s confessions to the Lyman murder, which included several statements indicating that he knew exactly what he was doing on the night in question, and having independently reviewed the trial record, we cannot disagree with the trial court’s conclusion on this point. As such, the State has a persuasive argument that Beck does not apply to Anderson’s case.

Second, unlike Beck, at the time of Anderson’s trial, there was no California statute or law of any kind that prohibited instructions on lesser included offenses in capital cases, but not in non-capital ones. To quote from Hopkins v. Reeves, 524 U.S. 88, 96, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998), a recent Supreme Court case, California has not “erected an artificial barrier that restriet[s] its juries to a choice between conviction for a capital offense and acquittal.” Id. at 96, 118 S.Ct. 1895.

Third, in contrast to Beck, if the jury convicted Anderson of burglary and felony murder, a death sentence would not automatically ensue. In the Alabama law at issue in Beck, the judge had ultimate authority on sentencing, yet the jury was not told this. 447 U.S. at 639 n. 15, 100 S.Ct. 2382. Instead, the jury was instructed that it must impose the death sentence if it found the defendant guilty and was thus led to believe, by implication, that its sentence would be final. Id.

Here, despite its decision to convict Anderson of burglary and felony murder, the jury could have also decided, based on the evidence in the penalty phase, not to sentence Anderson to death. Thus, the extreme choice between a complete acquittal or a sentence of death condemned by the Supreme Court in Beck was not present in Anderson’s case. See Hopkins, 524 U.S. at 98-99, 118 S.Ct. 1895. Moreover, in Hopkins, the Court held that the Beck rule applies only to those offenses that have been deemed by the state to constitute lesser-included offenses of the charged crime. Id. at 90-91, 118 S.Ct. 1895.

The Court explained that the crucial distinction between Beck and Hopkins “is the distinction, between a State’s prohibiting instructions on offenses that state law recognizes as lesser included, and a State’s refusing to instruct on offenses that state law does not recognize as lesser included.” Id. at 99 n. 7, 118 S.Ct. 1895. The former is unconstitutional, while the latter is not. Id.

In Hopkins, the Court held that Nebraska was not constitutionally required to give an instruction on the non-capital charge of second-degree murder when the defendant was charged with the capital count of felony murder because, under Nebraska law, second-degree murder was n

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