United States District Court, N.D. California.

Lorenzo NUNEZ, Petitioner,

v.

Rosie B. GARCIA, Warden, Respondent.

No. C 98-1345 SI. Aug. 15, 2001.

Opinion

ORDER GRANTING THIRD AMENDED PETITION FOR WRIT OF HABEAS CORPUS

ILLSTON, J.

*1 On June 14, 2001, the Court heard argument on the Third Amended Petition by Lorenzo Nunez for writ of habeas corpus. Having carefully considered the arguments of counsel and the papers and evidence submitted, the Court hereby GRANTS the petition for the reasons set forth below.

BACKGROUND

Petitioner Lorenzo Nunez (“Nunez”) is serving a term of 40 years to life at Centinela State Prison in Imperial, California,1 having been convicted of three counts of murder, attempted murder, assault with a firearm, residential burglary, conspiracy, residential robbery, unlawful assault weapon activity, and grand theft of a firearm. Answer to OSC at 1-2.

On November 16, 1994, Ramon Morales, his wife Martha, and her brother Fernando Martinez were robbed and killed in their residence in Salinas, California. The Morales’ 11-month-old daughter was also shot but survived.

Nunez was not present during the shootings and did not directly participate in the crimes, but had supplied two guns to the principal assailants a few days before the crimes were committed. The principals had fled to Mexico the same night of the crimes. Salinas police arrested and charged Nunez two days after the crimes.

Nunez alone was tried for the crimes. On July 18, 1995, following a six-day jury trial in Monterey County Superior Court, Nunez was convicted as an aider and abettor on three counts of murder, attempted murder, assault with a firearm, residential burglary, conspiracy, residential robbery, unlawful assault weapon activity, and grand theft of a firearm. Id. at 1-2.

A. Pertinent Facts

The following account of pertinent facts comes from Nunez’s memorandum in support of the Third Amended Petition and the unpublished opinion of the California Court of Appeal affirming Nunez’s conviction on direct appeal, People v. Nunez, No. 942212, slip op. (Nov. 25, 1996). See Exhibits in Supp. of Second Amended Petition, Ex. D at 8-19.

For approximately three months before the crimes, Nunez shared living quarters with Ramon Morales (“Ramon”) and his family. Nunez and Ramon were friends and were often found in each other’s company. Nunez helped Ramon construct chicken cages, and Ramon allowed Nunez to drive his car on a consistent basis. Ramon told Nunez that he would help pay to bring Nunez’s family over from Mexico.

Nunez is related to Francisco Antonio Sanchez (“Antonio”), one of the principal assailants in the crimes.2 Antonio and Ramon had a strained relationship stemming from when they lived and worked together. Antonio is a cousin of Joaquin Nunez (“Joaquin”) and Daniel Covarrubias (“Covarrubias”) (collectively the “three cousins”), the other two principal assailants, who had come up from Mexico a few days before the crimes.

Two days before the crimes, on Monday, November 14, 1994, Nunez gave Antonio and Joaquin two rifles which he had stolen from Ramon. Nunez maintains that he intended that the guns be sold in Mexico as he and Covarrubias had done before. Nunez met up with the three cousins later that evening as he was driving around town with a friend. He had his friend wait in their car as he spoke to Antonio for about half an hour in the latter’s car.

*2 Nunez did not sleep at Ramon’s home on the two nights between the time he gave the three cousins the guns and the evening of the crimes. He spent most of the time during these days with a friend or Ramon’s brother, Guillermo. It was unusual for Nunez to spend that much time away from Ramon. On the evening of the crimes, Nunez was at Guillermo’s home, where Ramon, his wife and their daughter were also visiting. At approximately mid-evening, Ramon received a page and stated that he needed to go home. He asked if Nunez wanted to come home with the family, but Nunez declined. Approximately 20 minutes after Ramon and his family left, Guillermo began to drive Nunez home. They stopped at a gas station where Nunez told Guillermo that two women they knew wanted to go dancing. On the way to pick up the women, Guillermo decided to stop by Ramon’s place, at which time the homicides had already occurred.

Nunez did not initially tell detectives that Ramon had more than one gun or that he had stolen two rifles from Ramon and supplied them to the three cousins. In a videotaped interview with detectives two days after the killings, Nunez finally admitted that he knew Antonio, Joaquin and Covarrubias and had supplied them with two rifles stolen from Ramon. Nunez claimed, however, that he intended for the guns to be sold in Mexico and denied having any knowledge that the three cousins would rob or shoot anyone. Evidence at the crime scene matched the guns used to kill the victims with the guns Nunez gave to the three cousins.

B. Procedural History

Although there was no direct evidence that Nunez had knowledge of the three cousins’ intentions when he supplied them the guns, a jury found that he aided and abetted the assailants and convicted him for all crimes committed by the principals. The conviction was affirmed on direct appeal, and the California Supreme Court denied review on March 12, 1997. Third Amended Petition ¶¶ 2, 3.

Nunez commenced this petition in pro se on March 5, 1998. He was appointed counsel and filed a Second Amended Petition on December 9, 1999, adding claims based on the following newly discovered evidence: Two days after Nunez’s sentencing on July 20, 1995, an investigator with the Monterey County Public Defenders Office received a videotaped statement by Covarrubias admitting his participation in the murders. Covarrubias also testified that Nunez was not involved in the crimes and did not know of the cousins’ plan, but instead had supplied the guns to be sold in Mexico. See Exhibits in Supp. of Third Amended Petition, Ex. E at 5-6.

In his state court habeas proceeding, initiated in the Superior Court in 1996, the court ruled that Covarrubias’ statements were hearsay, did not qualify as a statement against penal interest, but merely “set the stage for a claim of self defense ... while at the same time ‘helping a buddy.” ’ Id. at 1. The statement thus was of “questionable exoneration” and consequently “Does not undermine the entire structure of the case upon which the prosecution was based.” Id. at 2. On March 14, 2000, this Court granted Nunez’s motion to hold this action in abeyance pending state court exhaustion of these added claims. The claims were fully exhausted on March 29, 2000, after the California Supreme Court denied Nunez’s state petition for writ of habeas corpus. Id. at Ex. F ¶ 4.

*3 Having exhausted all state remedies, on April 28, 2000, Nunez filed a Third Amended Petition adding the newly discovered evidence under a claim of actual innocence. By order dated November 9, 2000, this Court dismissed the actual innocence claim. The Supreme Court has held that such claims are not cognizable in a federal habeas action: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860 (1993). Evidence of actual innocence instead can only serve as “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. 506 U.S. at 404, 113 S.Ct. at 862. See also Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868 (1995) (establishing appropriate use of evidence of actual innocence in a federal habeas proceeding). Thus, a petitioner relying on evidence of actual innocence must establish that there was constitutional error in his trial which “has probably resulted in the conviction of one who is actually innocent,” and that, “in light of the new evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998) (citations omitted). Because Nunez only asserted actual innocence as an independent claim rather than a claim pursuant to Schlup, this Court denied the claim as squarely prohibited by Herrera.

The remainder of Nunez’s Third Amended Petition, consisting of three claims for habeas relief, now comes before the Court for determination of the merits.

LEGAL STANDARD

A petition for writ of habeas corpus may be granted “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to this petition for habeas corpus, since it was filed after the AEDPA’s effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). In relevant part, 28 U.S.C. § 2254, as amended by AEDPA, states:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... (1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

*4 The Supreme Court recently explained that the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meaning:

A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases,” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” [citation]. A state court decision will be an “unreasonable application of” our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case .” [citation].

“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” [citation]. Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. [citation].

Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 2001 WL 589086,^*7 (June 4, 2001) (discussing Williams v. Taylor, 529 U.S. 362, 404-11, 120 S.Ct. 1495 (2000)). The Ninth Circuit further interprets the “unreasonable application” clause to call for clear error analysis:

Under AEDPA we must reverse a state court’s decision as involving an “unreasonable application” of clearly established federal law when our independent review of the legal question does not merely allow us ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves us with a “firm conviction” that one answer, the one rejected by the court, was correct and the other, the application of the federal law that the court adopted, was erroneous-in other words that clear error occurred.

Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.2000).

Assuming constitutional error occurred, habeas relief still cannot be granted unless the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 691, 623, 113 S.Ct. 1710, 1718 (1993). See also Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir.2000) (error which is harmless under Brecht analysis is not “contrary to” or “unreasonable application” of clearly established federal law); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000) (Brecht standard applies to all § 2254 cases).

DISCUSSION

The Third Amended Petition asserts three cognizable grounds for habeas corpus relief. First, Nunez alleges that the trial court committed constitutional error by excluding a specific witness statement on hearsay grounds, depriving him of due process and the opportunity to present his defense. Second, Nunez claims that the jury convicted him as an aider and abettor on insufficient evidence. Third, he alleges that the trial court deprived him of due process and violated his privilege against self-incrimination by erroneously admitting a videotaped police interrogation wherein Nunez confessed to stealing the guns from Ramon and supplying them to Antonio, Joaquin and Covarrubias.

A. Exclusion of Exculpatory Witness Testimony

*5 Jesus Rascon, a friend of Ramon’s, testified at trial about a conversation he had with Ramon and Nunez two days before the homicides. Nunez’s attorney attempted to ask Rascon whether, during that conversation, Ramon had told Nunez that he was going to Mexico in a couple of weeks to bring Nunez’s wife and daughter back with him. See RT (trial transcript, June 7, 1995) at 750. The trial court sustained an objection to the question because it called for a hearsay statement. Id. at 750-51. Defense counsel argued that the statement was not offered for the truth of the matter asserted but offered to show its effect on Nunez with respect to his lack of a motive to harm Ramon. The state appellate court upheld the trial court’s ruling, reasoning that “[u]nless [Nunez] thought that Ramon was telling the truth about his intent to reunite defendant with his family, it would not be probative of [Nunez’s] lack of motive.” Exhibits in Supp. of Second Amended Petition, Ex. D, at 30. Nunez contends that Rascon’s statement was vital to his defense, and its exclusion deprived him of due process and the right to present a defense.

A state court’s evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision. Estelle v. McGuire, 502 U.S. 62, 67, 68, 12 S.Ct. 475, 480 (1991); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.1999). See also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146 (1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.” ’) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528 (1984)). Even where evidence was erroneously admitted, federal habeas relief is available only if it appears that the evidentiary ruling was an error of such magnitude that the result is a denial of fundamental due process and the right to a fair trial. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471 (1962); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). The evidentiary error must have had a “substantial and injurious effect or influence in determining the jury’s verdict.” Lajoie v. Thompson, 217 F.3d 663, 673 (9th Cir.2000) (citing Brecht, 507 U.S. at 623, 113 S.Ct. at 1718).

Assuming the trial court’s ruling was error, this Court does not find that the exclusion of Rascon’s statement was a “denial of fundamental due process and the right to a fair trial.” Nunez argues that the statement was highly probative to his defense because it demonstrated that he lacked a motive to “offer[ ] up his friends to be murdered.” Memorandum in Supp. of Third Amended Petition 61. Nunez admits, however, that other evidence admitted at trial demonstrated that he and Ramon were friends, worked together, and that Ramon had helped Nunez considerably. Id. The evidence also showed that, when confronted by Ramon’s brother about his alleged involvement in the crimes, Nunez stated that he considered Ramon a father and could not harm him in any way. The effect of Rascon’s statement was cumulative to other evidence already presented.

*6 The Court is not persuaded by Nunez’s claim that Rascon’s statement was highly probative because “it would have established that Ramon was bringing Nunez’s family within two weeks of the date on which he was killed.” Id. Nunez’s conviction was not premised on his intent to assist the three cousins murder Ramon. It was enough to show that Nunez intended to assist the cousins rob Ramon, and in the commission of the robbery, it was a natural and probable consequence that Ramon and his family were killed. Thus, even if Nunez believed that Ramon was planning to bring his family from Mexico within two weeks, it was not necessarily inconsistent that Nunez could have harbored an intent to assist his cousins in robbing Ramon.

The trial court’s ruling excluding Rascon’s statement on hearsay grounds did not substantially affect the jury’s verdict. Accordingly, the Court DENIES Nunez’s claim that he was deprived of due process and the right to present a defense as a result of this evidentiary ruling.

B. Insufficiency of Evidence

Nunez’s second claim for habeas relief alleges that his conviction was procured on insufficient evidence. Nunez argues that the evidence does not support an inference that, as the California Court of Appeal held in denying his sufficiency of evidence claim on direct appeal, Nunez “delivered the rifles with knowledge that the cousins planned at least to rob Ramon and that [Nunez] did so with the intent to facilitate that crime.” Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 25.

In Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787 (1979), the Supreme Court announced the constitutional principle which Nunez invokes here: “an essential of the due process guaranteed by the Fourteenth Amendment [is] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” It is enough for purposes of withstanding a habeas challenge that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original). In making a sufficiency of the evidence determination, the entire evidentiary record must be considered in the light most favorable to the prosecution. McMillan v. Gomez, 19 F.3d 465, 468-69 (9th Cir.), cert. denied, 115 S.Ct. 170 (1994) (citations omitted). The government has no “affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt,” and furthermore, “if the record of historical facts supports conflicting inferences, [the reviewing court] must presume ‘that the trier of fact resolved any such conflicts in favor of the prosecution and ... must ‘defer to that resolution.” ’ Id.

Insufficient evidence claims are judged by looking at the elements of the crime under state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; Panther v. Hames, 991 F.2d 576, 581 (9th Cir.1993) (per curiam). Nunez’s conviction for murder followed from the jury’s finding that he aided and abetted the armed robbery.3 In order to be liable for aiding and abetting, “the law require[s] proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” People v. Beeman, 35 Cal.3d 547, 560 (1984).

*7 After the verdict was returned, Nunez moved for a new trial. Before denying the motion, the trial judge commented at length about the verdict, concluding that the evidence was “just barely” sufficient:

I can’t recall a murder case where a conviction’s been obtained or supported by any weaker evidence.

It’s a difficult case, because it was [a] heinous crime where three people are massacred, executed, and a little child is shot. And the actual killers have not been-people who actually did the shooting are not apprehended. It’s almost human nature to want to hold someone responsible versus that and the evidence, which, as we mentioned, is not the strongest circumstantial evidence case. If I had heard it as a court trial, I might well have come to a different conclusion than the jurors did.

[However,] [t]he test isn’t whether this Court would have reached a different conclusion, but the test is whether the evidence is sufficient.... I think it’s a close case. Whether the evidence is sufficient-I’m saying that for the appellate courts, because I think they should be aware that this [t]rial court feels that it is a very close case whether the evidence is sufficient.... But I do find that the evidence is sufficient to support the convictions, just barely.

Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 25-27.

The state appellate court affirmed this decision on direct appeal and determined that there was sufficient circumstantial evidence to allow the jury rationally to infer that Nunez had supplied the guns with the intent of encouraging or facilitating the robbery. See id. at 22-25. In coming to this decision, the appellate court reviewed the evidence “for indications of [Nunez’s] intent in supplying the rifles to the three cousins.” Id. at 22. According to the court, “[e]videntiary considerations which are probative of whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.” Id. (citing People v. Jones, 108 Cal.App.3d 9, 15 (1980)).

The appellate court recognized, as the trial judge had, that “there was no direct evidence here that [Nunez] discussed any crimes with the three killers.” Id. at 23. Proof of Nunez’s intent came only from circumstantial evidence. The appellate court noted that Nunez knew Ramon and Antonio were enemies, and from this inferred that Nunez must have known that he was “arming Ramon’s adversary.” Id. Furthermore, when Nunez supplied the guns to the cousins, he stated that they should purchase a missing magazine for one of the rifles the following day. The appellate court inferred from this that Nunez knew the cousins intended to use the rifles soon, and by suggesting that they purchase a magazine, Nunez had acted inconsistently with his asserted intention that the rifles be sold in Mexico. Id. Later that day, Nunez prevented a companion from listening in on his conversation with Antonio, suggesting that he had discussed an illegal plan with the cousins. Id.

*8 The appellate court also found Nunez’s behavior immediately after he had supplied the guns and after the crimes were committed to be probative of his intent to aid and abet the robbery. Id. at 23-24. Nunez avoided Ramon and his house during the two days after he supplied the guns, sleeping at a motel rather than at home. On the evening of the crimes, Nunez declined an invitation from Ramon to come home and attempted to dissuade Ramon’s brother from taking him home. After the crimes, Nunez concealed his connections with Ramon and the killers from Salinas police, lying about how many weapons Ramon owned and about stealing the guns from Ramon to supply them to Antonio.

The appellate court acknowledged that “any one of these instances of [Nunez’s] conduct, considered in isolation, might have a relatively innocent explanation .... [but][w]hen all these instances of defendant’s conduct are considered together with defendant supplying the rifles, the likelihood of an innocent explanation for any of them disappears.” Id. at 24. The appellate court consequently concluded, “[i]n light of this combination of circumstances, the only reasonable inference was that [Nunez] delivered the rifles with knowledge that the cousins planned at least to rob Ramon and that [Nunez] did so with the intent to facilitate that crime.” Id. at 24-25.

Nunez attacks the appellate court’s reasoning and holding by arguing that the evidence more rationally supports the conclusions that “[1] petitioner had given the guns to Antonio for the purpose of selling the stolen guns in Mexico and [2] had no knowledge of any planned robbery or murder.” Memorandum in Supp. of Third Amended Petition 41. Nunez meticulously analyzes the circumstantial evidence to illustrate that it supports the contrary inference that he did not aid and abet the robbery. See id. at 41-49. He argues that “[e]very single item of circumstantial evidence, cited by the state court in support of the finding of sufficient evidence of guilt, has a simpler, stronger, and more rational inference that points towards innocence.” Id. at 52. This may be so, and may explain the trial court’s statement that he “might well have come to a different conclusion than the jurors did.” Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 26. However, it is not enough to show that there are contrary inferences which are “simpler, stronger, and more rational” than what was actually decided. Nunez must demonstrate that no rational jury could draw the various inferences detailed by the state appellate court in support of a conviction.

Viewed in the light most favorable to the prosecution and drawing all inferences in the government’s favor, the Court concludes that the circumstantial evidence can support a conviction. The appellate court’s inferences, though stretched, were not mere speculation. Cf. United States v. Stauffer, 922 F.2d 508, 514 (9th Cir.1990) (“[M]ere suspicion or speculation does not rise to the level of sufficient evidence.”). Moreover, the fact that the inferences are drawn primarily from circumstantial evidence does not make them erroneous or unreasonable. See United States v. Kelly, 527 F .2d 961, 965 (9th Cir.1976) (circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from direct evidence).

*9 Giving due deference to the appellate court and the trier of fact, this Court cannot find that the state appellate court’s finding was erroneous under the high standards and presumptions applicable to federal habeas review of a claim for insufficiency of evidence. Under these standards, there was sufficient evidence to support the jury’s finding that Nunez aided and abetted the robbery and thus is liable for all of the crimes charged. Nunez’s insufficiency of evidence claim is accordingly DENIED.

C. Admission of the Videotaped Interrogation

In his third claim for habeas relief, Nunez challenges the admission of a videotaped interrogation wherein he admitted to stealing the rifles from Ramon and supplying them to the three cousins just prior to the homicides. Salinas police officers conducted several interviews with Nunez during the two days following the homicides. Nunez volunteered himself for all of the pre-arrest interrogations, including the one at issue, which occurred shortly after noon on Friday, November 18, 1994. Nunez was arrested immediately after this interrogation and made further incriminating statements during post-arrest interviews that same day. All of the interrogations on November 18, 1994 were videotaped.

Before trial, Nunez moved to suppress every videotape of the interrogations on the grounds that the interrogations were coercive and any statements Nunez made during the interrogations were involuntary. The trial court, after viewing all the videotapes, considered the motion under a totality of the circumstances test and found that all but one of the interrogations were coercive and thus inadmissible. RT (pre-trial motions hearing, June 1, 1995) at 6. The court noted that detectives made misrepresentations, engaged in “tough talk,” and physically and psychologically coerced Nunez. The court concluded that “there is nothing wrong about any one of these things, but I think when you put them all together, ... I can’t say that I can find that by a preponderance of the evidence that the statement was of the defendant’s own free will.” Id. at 5-6. Without any elaboration, however, the court stated that there was nothing “compelling” about the noon interrogation so that statements made therein were not involuntary.4 See id. at 6-7. The trial court declined to suppress the videotape of the noon interrogation, and during trial it was admitted in its entirety, with translated transcriptions for the jury and without any limiting instructions.

Nunez appealed this decision, arguing that his statements during the noon interrogation, like the statements in the other interviews, were not voluntarily given. Furthermore, Nunez contended that it was error to admit the videotape because it exposed the jury to false statements and opinions by the interrogators. The state appellate court affirmed Nunez’s conviction and held that, assuming the statements from the noon interrogation were involuntary and that it was error for the trial court to admit them, it was harmless error to admit the statements because they were cumulative to other evidence in the case.5 Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 38 (“[P]laying the videotaped interview added nothing to the prosecution’s case. What the videotape showed was also established by other evidence.”). In particular, the appellate court held that the “only unique probative aspect of the videotape was defendant’s acknowledgment of his theft of Ramon’s rifles. But this theft was amply proved by other evidence.” Id. at 40. With respect to Nunez’s argument of prejudice, the appellate court held:

*10 Defendant also contends that he was prejudiced because the jury heard certain statements by the detectives during this interrogation. There is no indication in the record that the detectives’ description of community sentiment would have caused the jurors to disobey their instruction to disregard, “passion, prejudice, public opinion or public feeling.” [citation]. There is no indication that the jury would have given more weight to the detectives’ reference to numerous unnamed witnesses than to the many witnesses who testified at trial.

Id. at 40-41.

Nunez continues to argue in this proceeding that the statements he gave at the noon interrogation were involuntary and were not of his own free will. It was therefore constitutional error, according to Nunez, to admit the videotape of the interrogation. Nunez further contends that such error was highly prejudicial because the jury was improperly exposed to statements and opinions by police detectives made during the interrogation. Consequently, Nunez urges that it was objectively unreasonable for the state appellate court to affirm his conviction and hold that any constitutional error arising from admission of the statements was harmless.

1. Coerciveness of the Interrogation

Before a criminal defendant’s statement can be used against him, due process requires that the government prove by a preponderance of the evidence that the statement was voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515 (1986); United States v. Guerrero, 847 F.2d 1363, 1365 (9th Cir.1988). A statement is voluntary if it is “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 209, 80 S.Ct. 274, 281 (1960). The applicable test is “whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.” Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir.1990). As the Supreme Court has put it:

“[T]he blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S., at 206, 80 S.Ct. at 279. Determination of whether a statement is involuntary “requires more than a mere color-matching of cases.” Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948. It requires careful evaluation of all the circumstances of the interrogation.

Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 2418 (1978). See also Miller v. Fenton, 474 U.S. 104, 109-110, 106 S.Ct. 445, 449 (1985); Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343 (1963); United States v. Miller, 984 F.2d 1028, 1031 (9th Cir.1993) (“The pivotal question in each case is whether the defendant’s will was overborne when the defendant confessed.”).6

Salinas police detectives Juan Ruiz (“Det.Ruiz”) and Tim McLaughlin (“Det.McLaughlin”) conducted the noon interrogation on November 18, 1994. It occurred over two sessions, separated by a half-hour intermission.7 The first segment of the interrogation lasted approximately 13 minutes and the second segment lasted 19 minutes. Nunez was questioned in a room approximately ten-by-ten feet in area. CT (testimony of Juan Ruiz at preliminary hearing, Jan. 25, 1995) at 359. He sat in a chair backed up against a wall while detectives Ruiz and McLaughlin sat in facing chairs approximately 2 feet in front of Nunez. Nunez did not speak English in the interview; Det. Ruiz translated questions and comments by Det. McLaughlin, who did not speak or understand Spanish.

*11 Det. Ruiz did not always present neutral and accurate translations, and at several moments interjected his own questions and comments. For instance, near the end of the first half of the interview, Det. Ruiz asked Nunez to remove a cap stating it was rude to wear a hat indoors. See Exhibits in Supp. of Second Amended Petition, Ex. A (transcript of noon interrogation) at bates no. 15. On numerous other occasions, Det. Ruiz admonished Nunez at length to cease lying and tell the truth because the police had ample evidence against him and it was the only way Nunez could help himself. See id. at bates nos. 26, 27, 30, 31.

The first half of the interrogation was unremarkable, consisting primarily of questions for background information and questions that were not related to the crimes. The detectives asked Nunez about his knowledge of a local drug dealer whom they suspected was involved with Ramon. The first segment ended with Det. McLaughlin announcing that he just received a call from a very important witness in the case. The detectives left Nunez alone with the video camera still running for approximately 30 minutes. Nunez did not leave his chair during this period, although there is no indication that he was forced to remain in the room. When the detectives came back, the interrogation shifted to a sudden and sharp accusatory tone.

Detective McLaughlin immediately announced that the results of the police investigation were conclusive that Nunez in fact had knowledge of and participated in Ramon’s murder. Id. at bates no. 16. This was a false statement. Waving a thick folder of papers, Det. McLaughlin also falsely told Nunez that numerous people had come forward and the police had sworn affidavits and sworn statements supporting the conclusion that Nunez knew about this. Id. at bates nos. 16-18, 30. He told Nunez that the community, even the criminals of Salinas, “were pissed off with what happened ... because of the baby.” Id. at bates no. 18-19. Moreover, Nunez was warned that everyone, including the police chief, urgently wanted someone to pay for the crimes, and right now, “you’re that person.” Id. at bates no. 19. The detectives explained that they did not think Nunez actually shot the victims, but “that doesn’t matter right now.” Id. at bates no. 19-20. Detective McLaughlin laid out Nunez’s predicament as follows:

Now the only person that is in custody so far is you. The three people who actually killed everybody are in Mexico. But know what the community wants somebody to pay. And even though you didn’t pulled the trigger you’re going to pay. And you better be honest with us.

Id. at bates no. 25-26. Speaking in Spanish, Det. Ruiz followed with this admonition:

This is the moment that you can, that you be honest with us you lied to me from the beginning you continued to lie to us this is the end of the lies and from hereon is going to have to be the truth. From hereon it has to be the truth sir we aren’t lying to you ok? We wouldn’t had put you under custody if what we’re telling wasn’t the truth all right?

*12 Id.

On more than two occasions, Det. McLaughlin warned that the detectives would leave and put Nunez in prison for the rest of his life if he persisted in lying. Id. at bates nos. 26, 30, 31. Det. McLaughlin warned, “If you lie to me we’re going to get up and we’re going to leave and we’re going to put you in prison for the rest of your life for a triple murder.” Id. at bates no. 30. Detective Ruiz then translated the statement as follows, “We’re, we’re tired of lies, if you lie to us we’ll leave ok? Because for lies, for lies is better that you don’t call me because you’re been disrespectful, you had been disrespectful from the beginning and you know that from man to man we aren’t disrespectful to anybody.” Id . Detective McLaughlin twice openly rejected Nunez’s response, calling one answer “a lot of bull.” Id at bates nos. 27, 28.

Throughout the interrogation, Det. Ruiz sat close to Nunez and spoke rapidly but did not raise his voice. Detective McLaughlin, on the other hand, displayed visible frustration and anger, pacing to and fro and often waving his finger or a folder in Nunez’s face. Detective McLaughlin consistently cut off Nunez with forceful admonitions for Nunez to stop lying and tell the truth. There were several instances when Nunez raised his hand to respond to statements being said, but was cut off by Det. McLaughlin.

Each of the methods employed by Detectives Ruiz and McLaughlin, considered in isolation, has been upheld against constitutional challenge.8 None of the noted cases, however, involves a set of circumstances that is squarely analogous to Nunez’s interrogation or that involves the use of all of these methods in conjunction. The cases therefore make for mostly incomplete comparisons under the totality of circumstances test.

The detectives’ tactics must rather be evaluated for their cumulative effect on Nunez. As courts have recognized, psychological coercion usually results from an aggregate of factors. See Guerrero, 847 F.2d at 1366 n. 2 (“Although an agent’s promise to communicate a suspect’s cooperation to the prosecutor does not render a subsequent confession involuntary, a suspect’s will may be overborne if this promise is accompanied by threats or other coercive practices.”); Tingle, 658 F.2d at 1336 (“[W]arnings that a lengthy prison term could be imposed, that Tingle had a lot at stake, that her cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for a while must be read together, as they were intended to be, and as they would reasonably be understood.”).

The detectives employed deception, calls to community sentiment and outrage, emotional and physical intimidation, and references to false evidence implicating Nunez in the crimes. Waving false witness statements and affidavits, the detectives averred that it was a foregone conclusion that Nunez was going to pay for the crimes even though he did not pull the trigger. They alluded to the community’s outrage and noted that Nunez was in a grave situation and stood to be severely punished to appease the community demand for retribution. Detectives Ruiz and McLaughlin created a highly stressful environment in which any reasonable person would feel coerced.

*13 In addition to the psychological ruse, the manner of the interrogation was also coercive. Detective McLaughlin was clearly in charge of the interrogation and, as the interpreter, Det. Ruiz served as a screen from the more aggressive and animated interrogator. Nunez was thus required to rely and depend on Det. Ruiz. However, Det. Ruiz acted as more than just a neutral interpreter-it was obvious that he was a detective on the case who had a stake in the outcome of the interrogation. His translations were hardly conventional, often including his own interjections and questions. During several tense moments, both detectives simultaneously barked at Nunez, one in English and the other in Spanish, as he sat unable to respond. Detective McLaughlin often paced the small room as Det. Ruiz leaned into Nunez. The detectives consistently cut Nunez off before he could respond to their statements. They exploited Nunez’s language vulnerability and used it to further frighten and confuse Nunez. Compare United States v. Toney, 579 F.Supp. 652, 656 (S.D.N.Y.1984) (“[The prosecutor] conducted the interview in English, but only after asking Negron in both Spanish and English which he understood. After he stated that he understood both, she advised him in Spanish that she would proceed in English, but that if he did not understand any question, she would obtain an interpreter for him. He responded that he understood everything.”).

Considering the totality of circumstances, the Court finds that Nunez’s interrogation was highly coercive. Nearly every aspect of the interrogation-the information provided to Nunez, the timing of particular revelations, the detectives’ body language, the demeanor and manner of questioning, and the physical and emotional environment-had the effect of manipulating Nunez’s responses. There is no doubt that any statement Nunez made in such a situation was involuntary and not the product of a rational mind. The trial court’s opposite conclusion was not only incorrect, but also an objectively unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.

There are few cases which present an analogous interrogation involving a comparably compound set of pressure tactics.9 The government relies on Amaya-Ruiz v. Stewart, 121 F.3d 486, 495 (9th Cir.1997), which did involve several factors. There, during a 40-minute interrogation in jail, the defendant confessed to stabbing a pregnant woman to death. He was questioned while wearing only a blanket and underwear, and he had been detained since 12:15 a.m. but was not questioned until 9:30 a.m. The defendant claimed that he had not slept or had anything to drink or eat throughout the night. He heard officers remarking to each other, “if he wants any forgiveness, he should tell the truth,” and “if he lies to us now it will be on the record for the rest of his life that he lied, and then he’ll never be able to say he was sorry because he lied at this time.” Furthermore, the officers falsely told the defendant that witnesses had seen him leaving the victim’s stolen truck.

*14 In analyzing the totality of circumstances in Amaya-Ruiz, the Ninth Circuit discounted the coercive force of many of the factors. The court noted that the police unclothed the defendant and gave him a blanket because his blood-stained clothing was taken as evidence. Furthermore, contrary to his allegations, the defendant was given coffee and a sandwich. The interrogating officers spoke in a voice that was “calm and not threatening.” Id. at 494. Thus, the court concluded that several of the alleged pressure tactics simply were not coercive. Id. Standing alone, the remaining factors-encouraging the defendant to tell the truth and misrepresenting the evidence-did not amount to such coercion as to overwhelm the defendant’s will. Id. (“Encouraging Amaya-Ruiz to tell the truth also did not amount to coercion.”); id. at 495 (“Misrepresentations linking a suspect to a crime or statements which inflate the extent of evidence against a suspect do not necessarily render a confession involuntary.”).

A more instructive case is United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), in which a confession was determined to be involuntary where the interrogating agent accused Tingle of lying, intimated that her accomplice had told the agent that Tingle was responsible for planning and executing the staged robbery under investigation, and “recited a virtual litany of the maximum penalties for the crimes of which Tingle was suspected, totaling 40 years imprisonment [ ] expressly stating, in a manner that could only be interpreted in light of the lengthy sentence he had described, that Tingle would not see her two-year-old child ‘for a while.” ’ Id. at 1333-34. Referring specifically to her child, the agent warned that Tingle had “a lot at stake” and told her that it would be in her best interest to cooperate and that her cooperation would be communicated to the prosecutor. Id. at 1334. The agent also told Tingle that if she failed to cooperate he would inform the prosecutor that she was “ ‘stubborn or hard-headed.” ’ Id. at 1336. Considering the totality of circumstances, the Ninth Circuit held that “the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time.” Id. at 1336.

The circumstances here similarly suggest but one conclusion-Dets. Ruiz and McLaughlin created a situation where Nunez felt compelled to save himself from the community’s need to punish these heinous crimes. The detectives led Nunez to believe that his only option was to reveal the extent of his participation in the crimes. Unlike the interrogation tactics employed in Amaya-Ruiz, none of the methods employed by Dets. Ruiz and McLaughlin had alternative purposes or justification. Here, the entire interrogation and everything the detectives did were designed for the singular purpose of extracting statements from Nunez.

*15 The trial court applied the totality of circumstances test when it evaluated Nunez’s pretrial motion to suppress all of the interrogations. The court recognized the various pressure tactics employed by Dets. McLaughlin and Ruiz in the noon interrogation. However, the court discussed these tactics in a broad sense, as though they were used throughout all of the interrogations. With very little reasoning, the trial court then distinguished the noon interrogation from the subsequent interrogations which it found to be coercive.10 There is no explanation why the same tactics and measures used in the noon interrogation, found in the subsequent post-arrest interrogations as well, did not also render the noon interrogation coercive. The trial court only explained that there was nothing “compelling” in the noon interrogation.

The trial court committed clear error when it ruled that the noon interrogation was not impermissibly coercive and admitted the videotape into evidence. Admission of the videotape therefore was an “unreasonable application” of established federal law. See Anthony v. Cambra, 236 F.3d 568, 578 (9th Cir.2000) (“In determining what constitutes an ‘unreasonable application’ of federal law, this court is guided by the doctrine of ‘clear error,’ which ‘generally allows for reversal only where the court of appeals is left with a definite and firm conviction that an error has been committed.”). To obtain habeas relief, however, Nunez must also demonstrate that this constitutional error had a “substantial and injurious effect” on the jury’s verdict.

2. Substantial and Injurious Effect

Habeas relief is warranted only if admitting Nunez’s statements caused a “substantial and injurious effect” on the outcome of the trial. Nunez must demonstrate that admission of the videotaped interrogation “so fatally infected the proceedings as to render them fundamentally unfair.” Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.2000) (en banc) (quoting Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991)); see also Alvarez v. Gomez, 185 F.3d 995, 998-99 (9th Cir.1999) (writ of habeas corpus must be granted where recorded confessions were wrongly admitted and without them the facts of the case are in equipoise as to whether there is sufficient evidence to support the conviction).

The state appellate court determined that any error arising from admission of the videotaped interrogation was harmless. See Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 38. Nunez’s statements from the interrogation revealed that he had stolen the guns from Ramon and supplied them to the three cousins. As the appellate court notes, a witness had already testified that Nunez supplied guns to the three cousins a few days before the killings. Moreover, there was circumstantial evidence that Nunez had stolen the guns from Ramon. Thus, the court held that “playing the videotaped interview added nothing to the prosecution’s case [because] [w]hat the videotape showed was also established by other evidence.” Id. at 39. Compare Laboa v. Calderon, 224 F.3d at 978 (“Given that the redacted confession essentially duplicated other evidence, that it never mentioned Laboa, and that neither party focused on the confession, the confession could not have had a substantial and injurious effect on the jury’s verdict.”).

*16 Nunez does not dispute that his inculpatory statements from the videotaped interrogation were cumulative to other evidence already presented. He rather argues that the state appellate court focused on the wrong question. Nunez claims that the substantial injurious effect resulted from what the detectives said in the interrogation, not what Nunez said. Nunez stresses that the jurors were exposed to “the spectacle of a video tape in which the investigating officers gave their personal opinion that Nunez was guilty which they backed up by deliberate lies, referring to non-existent evidence, evidence that not only was never put before the jury, it never existed.” See Memorandum in Supp. of Third Amended Petition 29.

The videotaped interrogation was shown to the jury in complete, unredacted form. See RT (trial transcript, June 9, 1995) at 1080. The jury was also provided a written transcript containing translations of the Spanish portions of the interrogation. All of Dets. Ruiz and McLaughlin’s questions, statements and reactions were exhibited. The jury saw the detectives’ repeated denials of Nunez’s answers and their relentless drilling for him to tell the truth when they were visibly dissatisfied with his responses. See, e.g., Exhibits in Supp. of Second Amended Petition, Ex. A (interrogation transcript) at bates no. 26 (Det. Ruiz: “Don’t lie, don’t start lying about the rifles, where did you get them, we know that you had them.”). Detective McLaughlin is also heard to state conclusively that Nunez was involved and that the priority was for him to help himself. See id. at bates no. 17 (“The fact whether or not you knew about this. We’re beyond that. But we got to get something working for you.”). He asked leading questions, further suggesting that the detectives already had strong proof of the very facts they sought from Nunez.

The jury heard Det. McLaughlin announce that the police had “spent hours and hours and hours on this investigation [involving] the entire detective division,” and had amassed sworn affidavits and sworn statements from “numerous, numerous people,” all conclusively proving that Nunez knew and participated in the homicides and robbery. Id. at bates nos. 16-17. The false references to inculpatory evidence were not made in passing but repeated forcefully as Det. McLaughlin waved a folder of papers to suggest that the evidence existed. Moreover, McLaughlin left no doubt that he was on top of the case, averring confidently at one point, “I know my stuff, hey, I know my stuff.... Do you see this, [waving file of papers] those are all the people I’ve talked to, I know my stuff.” Id. at bates no. 25. Viewing the entirety of the interrogation leaves the undeniable impression that the detectives had evidence that Nunez was involved and participated in the crimes and only sought confirmation from Nunez.

The Ninth Circuit sitting en banc in Dubria v. Smith, 224 F.3d 995 (9th Cir.2000), considered a similar situation in rejecting a deprivation of due process habeas claim. The jury in that case had also received an unredacted tape and transcript of a pre-arrest interview. Throughout the interview, detectives “challenged [the defendant] about his explanation of the events and repeatedly told him that no judge or jury would believe him if he stuck to his story.” Id. at 1000. The interrogation was admitted for the limited purpose of showing the defendant’s reaction and response when confronted with a toxicology report. However, the defendant argued that admitting the entire interrogation was prejudicial because “Detective Detar’s comments and questions contained statements of disbelief of [defendant’s] story, opinions concerning [his] guilt, elaborations of the police theory of [the victim’s] death, and references to [defendant’s] involvement in the crime.” Id. at 1001.11

*17 The defendant stressed that these statements came from the investigating officer, which makes them more prejudicial because the testimony of law enforcement officers always carries an aura of special reliability and trustworthiness. The Dubria court rejected this argument, holding that the proper question was to “examine officers’ statements in context to determine whether they fundamentally affect the fairness of the trial.” Id. at 1001. Viewed in its entirety and in proper context, the court determined that the tape recording presented only an “unremarkable interview”:

The questions and comments by Detective Detar placed [the defendant’s] answers in context, much like a prosecutor’s questions at trial. There was nothing in Detective Detar’s statements that suggested evidence or theories of the case that were not presented at trial.

Id. Furthermore, the court held that any prejudice caused by the statements was “specifically and timely corrected by the trial judge” with cautionary instructions administered immediately before and after introduction of the evidence.12 Id. at 1002. The Dubria court concluded that admission of the taped interview did not violate the defendant’s due process rights. Id. at 1003.

By contrast, Dets. Ruiz and McLaughlin’s questions, demeanor, reactions and statements did more than merely put Nunez’s answers in context. Their actions affirmatively implied that there was conclusive proof of Nunez’s participation in the crimes. Unlike in Dubria, the potential for prejudice here was not simply that there is an aura of reliability to a police officer’s opinions or theory of a case. Instead, the prejudice in this case arose from the detectives’ false assertions of “fact” and posturing establishing Nunez’s guilt. There was a real danger that Nunez’s jury believed the detectives’ statements on the videotape to have proven that Nunez was involved with or participated in the crimes by supplying the guns. This fact was the linchpin of the government’s case against Nunez, which was otherwise-as the trial court specifically noted-precariously balanced on equivocal circumstantial evidence.

Most importantly, the trial judge in Dubria was careful to give cautionary jury instructions immediately before and after the tape was played to the jury. Such an instruction was central to the Ninth Circuit’s holding that there was no substantial and injurious effect from admission of the tape. See Dubria, 224 F.3d at 1002. Here, the videotaped interrogation was simply played to the jury with absolutely no accompanying instruction. See RT (trial transcript, June 9, 1995) at 1080-81. There was a continuous shift from playing the videotape to continuation of witness testimony. The absence of any instruction here makes the prejudice from the statements and opinions by Dets. Ruiz and McLaughlin even more exacerbated. During final jury instructions, the trial court did make general references to evidence which could be applied to the videotape.13 However, there was no suggestion that these general instructions specifically applied to the videotape. The videotape was treated the same as all other evidence,14 and no attempt was made to mitigate the obvious prejudice from its admission.

*18 Admission of the videotape caused “a substantial and injurious effect or influence in determining the jury’s verdict,” depriving Nunez of his due process rights. Brecht v. Abrahamson, 507 U.S. at 623. The state appellate court’s contrary conclusion was without justification and clearly erroneous. In assessing prejudice, the appellate court focused most of its attention on the cumulative nature of Nunez’s statements from the interrogation. See Exhibits in Supp. of Second Amended Petition, Ex. D (slip opinion) at 39-40. It held, unsurprisingly, that admission of these statements was not prejudicial because independent evidence had already established that Nunez stole the guns from Ramon and supplied them to the three cousins. Id. at 40. As shown above, however, it was not the admission of Nunez’s statements that was prejudicial, and the appellate court’s emphasis on this aspect of the interrogation was misplaced.

The greater and more obvious prejudice from admitting the videotape was to expose the jury to the interrogators’ statements, opinions and actions. As to this issue, the appellate court rejected Nunez’s argument in one short paragraph, reasoning that there was “no indication in the record that the detectives’ description of community sentiment would have caused the jurors to disobey their instruction to disregard ‘passion, prejudice, public opinion or public feeling,” ’ nor “that the jury would have given more weight to the detectives’ reference to numerous unnamed witnesses than to the many witnesses who testified at trial.” Id. at 40-41. No serious attention was paid to the prejudice discussed in detail above, nor did the court consider the lack of a limiting instruction.

The appellate court rested its conclusion that admitting the videotape was harmless error on the finding that Nunez’s inculpatory statements from the videotape were cumulative to other evidence. It failed to account for the prejudice from the detectives’ statements and opinions, which were admitted wholesale and without limitation.. Although the appellate court applied the correct test, it came to a conclusion that was clearly erroneous.

This Court finds that the California Court of Appeal’s holding that admission of the entire videotape of Nunez’s noon interrogation was harmless error was an objectively unreasonable application of established federal law, as determined by the Supreme Court of the United States. Because the appellate court failed to recognize this due process violation and affirmed Nunez’s conviction, Nunez is being held in custody in violation of the Constitution and laws of the United States. Accordingly, the Court GRANTS Lorenzo Nunez’s petition for writ of habeas corpus.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Third Amended Petition for Writ of Habeas Corpus. [Docket No. 39]. Nunez’s conviction will be vacated unless the State of California re-tries petitioner within 90 days of the date of this order.

*19 IT IS SO ORDERED.