Neri v. Hornbeak (550 F. Supp. 2d 1143, 2008)

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

FLORENCE-MARIE COOPER, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings and papers herein, including the Magistrate Judge’s Report and Recommendation. Objections to the Report and Recommendation have been filed by respondent. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered granting a conditional writ of habeas corpus as follows: Unless petitioner is brought to retrial within sixty (60) days of the date the Judgment herein becomes final (plus any additional delay authorized under State law), respondent shall discharge petitioner from all adverse consequences of her conviction in San Ber-nardino County Superior Court Case No. FVA015633.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order and the Judgment by United States mail on petitioner and counsel for respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Florence-Marie Cooper, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On September 25, 2007, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. In accordance with the Court’s Order Requiring Response to Petition and following two extensions of time, respondent filed an Answer to Petition, along with a supporting Memorandum of Points and Authorities (“Ans.Mem.”) on December 28, 2007. Petitioner did not file a Reply or seek an extension of time to do so.

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the Petition be granted.

PROCEDURAL HISTORY

On May 7, 2004, a San Bernardino County Superior Court jury found petitioner guilty of second degree murder and assault on a child under eight years of age causing death. (See 2 Clerk’s Transcript on Appeal [“CT”] 397-98; 4 Reporter’s Transcript on Appeal [“RT”] 905-06). On November 18, 2004, the trial court sentenced petitioner to state prison for an indeterminate term of 25 years to life. CSee 2 CT 437; 4 RT 948).

Petitioner appealed her conviction and sentence to the California Court of Appeal raising claims corresponding to both of the Grounds raised in the Petition herein. Concurrently therewith, petitioner filed a petition for writ of habeas corpus raising an unrelated ineffective assistance of counsel claim based on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), along with a claim generally corresponding to Ground Two of the Petition herein. (See Respondent’s Notice of Lodgment [“Lodgment”] Nos. 3, 6). In an unpublished decision filed on June 16, 2006, the California Court of Appeal rejected all of the claims raised on direct appeal and on habeas and affirmed the judgment. (See Respondent’s Notice of Lodgment [“Lodgment”] Nos. 3). Petitioner’s ensuing Petition for Review to the California Supreme Court raising all of the claims raised in the Court of Appeal was denied on August 30, 2006, without comment or citation of authority. (See Lodgment Nos. 8, 9).

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

The following summary is taken from the “Facts” section of the California Court of Appeal opinion (see Lodgment No. 7 at 3-6):

In August of 2001, [petitioner] had two children, Dana, who was 16 months old, and Maxwell, who was two years four months old. [Petitioner] lived in a one-bedroom apartment with her boyfriend, Noe Lugo, her two children, Noe’s parents and sister, Lucy. [Petitioner] had met Noe at night school, where both were taking classes to learn English. Apparently, at the time, [petitioner] was still married to Samuel Santiago. [¶] On the morning of August 13, 2001, Noe, who worked in the evenings, came home and noticed that Dana appeared to be sad. As usual, Noe went to sleep during the day. Later in the morning, while [petitioner] was taking a shower, Noe woke and heard Dana moaning.[ ] He noticed that Dana was having difficulty breathing. Noe knocked on the bathroom door and told [petitioner] that her daughter was sick. Dana became unconscious and [petitioner] attempted to give her mouth-to-mouth resuscitation. After telling Noe to call the ambulance, [petitioner] instead decided to drive Dana to the hospital. [¶] En route to the hospital, [petitioner] noticed an ambulance and flagged it down. The ambulance was occupied, but the emergency personnel called for another ambulance. [¶] Shortly after arriving at the hospital, the doctors announced that Dana was dead. The autopsy report indicated that Dana’s injuries were not accidental. Dr. Steven Trenkle, who performed the autopsy, noted acute fractures to Dana’s right fourth, fifth, sixth, and seventh ribs. He also noted that Dana had healing fractures of certain front and posterior ribs. Dana’s pancreas was completely torn, which likely occurred three to five days before her death. Her recent injuries and death were caused by tears to the liver, diaphragm, the mesentery of the bowel, right adrenal gland, and pancreas. Dr. Trenkle noticed that Dana had bled the majority of her blood volume into her abdominal cavity. The injuries were caused by a considerable amount of force, which could not have been inflicted accidentally or by a small child. The amount of force required would have been equivalent to a hard punch or a kick. [¶] Although there were other adults in the home, [petitioner] was the children’s primary caregiver. She was the only one who disciplined the children. She sometimes slapped her children on the mouth and hands and spanked their buttocks. During her police interview, [petitioner] explained that Dana was very clingy that morning and insisted on staying by her side. [Petitioner] pushed her away. When Dana refused to go to sleep, [petitioner] grabbed her by the hand, lifted her, and tossed her on her pillow. She landed on a plastic cup, which was on the bed. [Petitioner] denied hitting or kicking Dana in the stomach or having any intent to kill her daughter. [¶] [Petitioner] claimed that Noe was responsible for Dana’s injuries.

PETITIONER’S CLAIMS

1. Petitioner’s statements to Detective Ortiz were the product of an unlawful detention and were taken in violation of Miranda v. Arizona, 384 U.S. 436, 444, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (See Pet. 12-15; Pet. Memorandum of Points and Authorities [“Pet. Mem.”] at 12-32).

2. Requiring petitioner to sign a declaration during trial, and seizing and allowing the prosecutor to cross-examine petitioner about a marked-up draft of the declaration denied petitioner her rights to silence, to counsel, to a fair trial, and to freedom from unreasonable seizures; and trial counsel rendered ineffective assistance with respect to the declarations. (See Pet. at 9-11, 16-18; Pet. Mem. at 33-62).

STANDARD OF REVIEW

The standard of review applicable to petitioner’s claims herein is set forth in 28 U.S.C. § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

“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.”

Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Smith v. Patrick, 508 F.3d 1256, 1260 (9th Cir.2007).

Although a particular state court decision may be both “contrary to” and “an unreasonable application of’ controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” Williams, 529 U.S. at 406, 120 S.Ct. 1495. However, the state court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early, 537 U.S. at 8, 123 S.Ct. 362.

State court decisions that are not “contrary to” Supreme Court law may only be set aside on federal habeas review “if they are not merely erroneous, but ‘an unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable determination of the facts.’ ” Early, 537 U.S. at 11, 123 S.Ct. 362 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413, 120 S.Ct. 1495 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such-an “unreasonable application,” a petitioner must show that the state court’s application of Supreme Court law was “objectively unreasonable.” Visciotti, 537 U.S. at 24-27, 123 S.Ct. 357; Williams, 529 U.S. at 413, 120 S.Ct. 1495. An “unreasonable application” is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10, 120 S.Ct. 1495; see also Visciotti, 537 U.S. at 25, 123 S.Ct. 357; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

DISCUSSION

A. Habeas relief is not warranted with respect to petitioner’s claims based on the admission of statements allegedly resulting from an unlawful detention and Miranda violations.

1.' The proceedings in the State courts

a. petitioner’s motion to suppress

Prior to trial, petitioner’s counsel filed a motion to suppress inter alia the statements she made to Detective Ortiz on the grounds that they were the result of an “unlawful de facto arrest” in violation of the Fourth Amendment and a custodial interrogation without a valid Miranda waiver in violation of the Fifth Amendment. Petitioner further argued that her statements were involuntary under the Fourteenth Amendment. {See 1 CT 57-81). The prosecution filed an opposition to the motion. {See 1 CT 90-97). Following the filing of the opposition, defense counsel filed a declaration under petitioner’s name on June 16, 2003. Therein, petitioner stated in pertinent part:

“At about 7:00 a.m., the first Spanish speaking police officer — a female officer named Detective Mary Ortiz arrived at Arrowhead Regional Medical Center. Detective Ortiz approached me and I told her I wanted to go home. But, Detective Ortiz told me that I could not go home. Detective Ortiz told me I was going to be taken to the police station. [¶] Noe and I were then taken by police officers to a police car and driven to the police station by a female police officer, who did not speak Spanish. [¶] When Noe and I arrived at the police station, we were placed in a small room. A police officer was stationed at the door to the small room. I told the police officer I wanted to go home, but he did not speak Spanish. The police officer would not let us leave. [¶] Noe and I were kept in the small room at the police station all day long. According to the clock on the wall of the room, I was kept in this room from 8:30 AM until 6:00 PM. Whenever I got up to move around, the police officer would also get up. I asked to use the phone; but the police would not allow me to make any phone calls.” (1 CT 110).

A “CAD” Operations Report also submitted by petitioner corroborated petitioner’s claim that a police officer had been assigned to sit with her at the station. An entry on the log read: “[08/14/2001 08:45:54: BANDERSON] PER SIO FIND A RESERVE TO RESPOND TO 1019 TO SIT WITH THE POTENTIAL SUSPECTS.” (See 1 CT 128).

Among the other evidence submitted in support of petitioner’s motion was the Rialto Police Department “narrative report” of Detective Mary Ortiz. Therein, Ortiz stated that when she arrived at the hospital, “[she] then went to a waiting room and made contact with Vanessa Neri and Noe Lugo. [Ortiz] advised that [she] would be investigating the case and that [she] would need to talk to them at the police department. They both advised that they would go with [her], however, since officers had earlier towed their vehicle they were transported to the station by Ofcr. Day.” (See 1 CT 127).

In support of its opposition to the suppression motion, the prosecution submitted a declaration attesting that another district attorney had interviewed Deputy Coroner Kinney, who was called to the hospital on the night Dana died. (See 1 CT 104-05). The declaration was apparently intended to rebut the argument that petitioner had been detained at the hospital, or was subject to a de facto arrest. The prosecution did not submit any other declarations.

The videotape of Detective Ortiz’s interview with petitioner (in Spanish), along with a transcript of the interview translated into English also was before the trial court. Around 3:50 p.m. the day after Dana’s death, and after Detective Ortiz had attended Dana’s autopsy (see 1 CT 91:7-10), she took petitioner from the police lounge to an interrogation room and began questioning her. Ortiz did not give petitioner Miranda warnings at the outset of the interview. Ortiz told petitioner that someone had beaten Dana, that she had died of “internal blows,” and that her ribs were broken. (See 2 CT 480). Ortiz asked petitioner if she had gotten mad at Dana “yesterday.” Petitioner denied kicking or hitting Dana. (See 2 CT 482-84). Shortly before 5:30 p.m. (see CT 91:16), Ortiz asked petitioner if she had thrown Dana to the floor or against a piece of furniture. Petitioner replied that when Dana would not to go sleep, she would get mad, but she did not hit Dana. She told Dana to go to sleep and “would toss her to the pillow.” Ortiz said, “[I]t’s better that you explain what happened because it’s one thing if you want to kill your little girl, but it’s another if you got mad and did something that ... was an accident ... or because you were mad.” Petitioner responded, “No, I didn’t want to, I didn’t want to kill her. I didn’t want to kill her.” (See 2 CT 490). Ortiz asked petitioner what she thought could have happened. Petitioner responded, “I don’t think that, that if I, that I, from a, hit her or something, I don’t think I broke her ribs.” Petitioner explained that there was a plastic cup on the floor where Dana slept, and that she had thrown Dana on the pillow and laid down with her. Dana had landed face down. Ortiz suggested that petitioner might have thrown Dana down harder than she thought. When asked who else was in the room when petitioner threw Dana down, petitioner responded Maxwell and Noe, but Noe was asleep. At this point, Ortiz indicated she was going to step out of the room. Petitioner asked, “Do I stay here?” Ortiz replied, “Stay here.” (See 2 CT 491).

While Ortiz was out of the room, petitioner twice told Detective Hector Santana, “I need to leave.” She stated she was feeling frustrated inside. (See 2 CT 491-92). Santana informed Ortiz and when she came back into the interview room, she asked petitioner how she felt. There was an “inaudible response.” Ortiz inquired, “Why? You don’t feel well?” Petitioner responded, “Mmm hmm. I want to see my little boy (crying.) Will I be able to see him Friday?” (See 2 CT 492). Ortiz responded that she did not know because “we don’t know what’s happening here ... I have an idea of what, what happened with the little girl____ [I]t’s not fair to blame someone else if they didn’t do anything ... I have some questions that I want to ask you, but first I’m going to read you your rights.” (See 2 CT 492-93).

Ortiz then read petitioner her Miranda rights. (See 2 CT 493). Ortiz then asked petitioner if she was willing to continue speaking with her. The transcript reads “15 seconds of silence.” (See 2 CT 493). Ortiz asked petitioner to tell her again what had happened to the little girl the night before. Petitioner repeated that she bathed them, put pampers on them, gave them milk with “Quick” and put them to bed. Dana stood up twice when she was supposed to sleep, and petitioner grabbed her by the hand, picked her up, said “Go to bed,” and threw her on the pillow, where she landed on the little cup. When Ortiz asked petitioner if she had kicked Dana, she replied, “No, I don’t think so, no.” (See 2 CT 494). Petitioner denied hitting Dana in the stomach. Ortiz commented that petitioner was not the first mother to get mad at her children and hit them without realizing the force she was using. Petitioner replied, “(Crying), but I didn’t want to kill her or anything.” (See 2 CT 495). She later said, “If I did something ... to my little girl I didn’t do it with the intention of killing her.” (See 2 CT 504). She again repeated that she grabbed Dana by the arm, lifted her up, and threw her on the pillow. (See 2 CT 505). Petitioner denied ever hitting Dana with a closed hand, and when asked whether she had ever hit Dana with her foot, petitioner responded, “Uh, but not hard, not hard, on the diaper.” (See 2 CT 509). Ortiz told petitioner that she was going to be arrested. Petitioner asked, “I’m the only one going to jail?” Ortiz asked who else should go to jail. Petitioner responded, “I don’t want to blame anyone, but I don’t want to be responsible either (crying).” (See 2 CT 511). After some more questions, petitioner showed Ortiz how she had grabbed Dana by the arm and threw her to the pillow. She repeated that she had laid down with Dana, and stated that Dana did not cry and fell asleep. (See 2 CT 517-18).

Petitioner was arrested around 7:00 p.m. (See 1 CT 91, 2 CT 510, 518-19).

b. The hearing on the suppression motion

The trial court held a hearing on the suppression motion on June 18, 2003. (See 1 RT 9-26). At the hearing, the trial court indicated that it had reviewed the videotape of the interview of petitioner and read the English translation of the tape, and had read the points and authorities submitted by defense counsel, petitioner’s declaration, the People’s opposition to the motion, accompanied by the prosecutor’s declaration, and petitioner’s reply to the People’s opposition. The court also had read case law submitted by petitioner. By stipulation of the parties, the trial court heard no live testimony. (See 1 RT 24-25). The court found that no unreasonable seizure in violation of the Fourth Amendment had occurred; that no Miranda violation had occurred; that there was no illegal arrest in violation of the Due Process Clause of the 14th Amendment; and that petitioner’s statements were voluntary. The trial court reasoned in pertinent part:

“[U]nder the legal sense of compulsion, the [petitioner] and her boyfriend were not compelled to go to the police station in Rialto. They accepted a ride, if I may use that term, because the car in which they had gone to the hospital had been impounded for other reasons. They didn’t have a way to get to the Rialto Police Department otherwise. [¶] I have viewed the videotape ... This is a woman who is distraught. She was upset. She had just lost her daughter. She was in unfamiliar settings and surroundings. She was having to deal— unless Deputy Ortiz was there, Officer Ortiz, she was having to deal with people who did not speak her language. [¶] All of that together, none of that means that she was being illegally detained or that she was in custody under the 4th Amendment sense of custodial interrogation or 5th Amendment Miranda sense of custodial interrogation. [¶] At most, at most, the most that can be said is that at the point during the interview where she said, T need to go home now,’ or T need to go back to my son,’ that perhaps at that point this became a Terry Stop or a Terry Investigation. I’m not sure that I can go that far but I won’t go any further than that.” (1 RT 14-15).

The trial court indicated that it had made the parties “aware of the Court’s thinking” and would entertain further argument. During argument, defense counsel characterized Detective Ortiz’s initial statement to petitioner as “I need to talk to you at the police station.” The trial court apparently agreed, or at least acquiesced in defense counsel’s characterization. (See 1 RT 18). Defense counsel argued that “a 21-year-old Spanish-speaking girl whose baby has just passed away, she is supposed to say, I know I can leave? That — I don’t even have a car.” The trial court responded that “the fact that she didn’t have a car didn’t have anything to do with law enforcement having to do with this case. That car was impounded for other reasons.” (See 1 RT 18-19). Defense counsel agreed, but maintained that it was relevant to determine whether she went to the police station voluntarily “in the back seat of a police car.” The trial court found it “very clear that [once there] she was in the front lounge at the police department.” (See 1 RT 20). Defense counsel argued that “it is also very clear they called in an officer just to guard her, who sat with her from 7:00 a.m. until 6:00 p.m. — or at least 3:00 p.m., according to Detective Mary Ortiz,” and that the guard did not speak Spanish. Citing Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003), the trial court indicated that with respect to the Fourth and Fourteenth Amendment arguments, “you almost have to get to a Kaupp case before you find it in violation of the Constitution.” (See 1 RT 22). The trial court explained that with respect to the interview, it “found that interview for the most part to be very voluntary. She is very distraught. She is very upset” but it was not compelled testimony. (See 1 RT 23).

c. The California Court of Appeal opinion

On direct appeal, petitioner claimed that she was unlawfully detained from the time she was taken to the police station through and including her interview by Detective Ortiz; that Miranda advisements should have been given at the beginning of the interview with Detective Ortiz; that Detective Ortiz did not “scrupulously honor” petitioner’s request to terminate the interview; that the failure to terminate the interview vitiated the Miranda waiver obtained immediately thereafter; and that she was prejudiced by the admission at trial of her statements to Detective Ortiz. In rejecting petitioner’s claim, the California Court of Appeal reasoned in pertinent part as follows (see Lodgment No. 7 at 4-14):

Initial Encounter at [...] [the] Police Station

[A]s found by the court, [petitioner] and Noe willingly accompanied Detective Ortiz to the police station. Ortiz explained: ‘They advised that they wanted to speak to me. They wanted to find out what happened to Dana, and that they would be willing to come on their oum; however, they had no ride. [¶] So I provided a ride with another police officer to transport [Noe] and [petitioner] to the police department.’ At this point, the investigation had not focused on [petitioner]. Ortiz asked [petitioner], Noe, and Lucy to accompany her to the station. As Ortiz explained, all three went to the station of their oum accord. Because [petitioner] willingly accompanied Ortiz to the station, [petitioner’s] presence at the station was not the result of a detention.

At the station, [petitioner] was not detained during the initial questioning. ‘The Fourth Amendment does not prevent a person from agreeing to accompany officers to the police station and remain there for interrogation.’ [Citations omitted]. Even a long delay, as involved here, does not transform the consensual encounter to a detention where there is no evidence of any use or show of authority to restrict the individual’s liberty. [Citation omitted].

Here, [petitioner] and Noe waited for several hours as Detective Ortiz questioned Lucy and then attended the autopsy to determine the cause of Dana’s death. During that time, [petitioner] and Noe sat in the front lounge with a non-Spanish speaking officer, who was assigned to sit with them. In her declaration, [petitioner] stated that she had told the officer that she wanted to go home, but the officer refused to let them leave. The court impliedly rejected [petitioner’s] statement. Without [petitioner’s] declaration, there is no evidence that any of the officers told [petitioner] that she had to stay or used any force or show of authority to suggest that she had no right to leave.

Nothing else about the environment was coercive. She waited in a lounge, which Detective Ortiz described as a lunch room with a sofa and television. She was not alone, but sat in the lounge with Noe. The record suggests that she was offered something to eat. [Petitioner] even admitted that she slept during part of the time as she waited for Ortiz to return from the autopsy.

Moreover, when Detective Ortiz, who spoke Spanish, returned to the station and asked [petitioner] to answer some additional questions, [petitioner] was cooperative. Although [petitioner] contends that she wanted to leave, she did not express this desire to Ortiz. She instead voluntarily responded to Ortiz’s questions. The facts in this case indicate that Ortiz was simply beginning her investigation into Dana’s suspicious death and, as concerned family members, [petitioner], Noe, and Lucy were being cooperative with the investigation, both at the hospital and at the police station. The fact that [petitioner] was with another member of her household suggests that the environment was not coercive and that the investigation was not targeted specifically at her. During the interview, Ortiz even questioned [petitioner] whether another person, possibly Noe, was responsible for Dana’s injuries. Based on the facts, we conclude that the contact was not a detention, but a consensual encounter.

The Initial Interrogation

[Petitioner] contends that Detective Ortiz should have informed her of her Miranda rights before conducting the interview.

Under the federal Constitution, an individual who is subjected to a custodial police interrogation must be informed of his right to be silent and right to counsel. (See Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. 1602; [Citation omitted]). An interrogation is custodial when the individual has been taken into custody or is otherwise deprived of his freedom of movement. [Citation omitted]. In making this determination, we apply an objective test, namely, whether there was a formal arrest or a restraint on the individual’s freedom to the degree associated with formal arrest. [Citation omitted].

Because the facts indicated that the contact was not a detention up to this point, it is a foregone conclusion that the interrogation did not begin in a custodial setting. As discussed above, [petitioner] agreed to accompany Detective Ortiz to the police station and answer some additional questions. Despite the lengthy delay, [petitioner] waited in a relatively comfoHable environment and was not restricted from leaving. The consensual nature of the encounter did not change simply because Detective Ortiz took her to an interview room. As observed by the court, the initial conversation between [petitioner] and Ortiz continued to be consensual. [Petitioner] voluntarily responded to Ortiz’s questions. Under the circumstances, a reasonable person would not have believed that she was in custody or under arrest for Dana’s death.

We conclude that [petitioner] was not in custody for purposes of Miranda and, therefore, Detective Ortiz had no obligation to inform [petitioner] of her constitutional rights.

The Court of Appeal proceeded to deny petitioner’s claim that Detective Ortiz had failed to scrupulously honor the invocation of her right to remain silent when, after Ortiz stepped outside the room, petitioner told another officer that she needed to leave. The Court of Appeal determined that petitioner’s statement was an ambiguous invocation of her right to remain silent, and that Ortiz’s clarification questions following petitioner’s statement and her act of then giving petitioner Miranda warnings were proper. The Court of Appeal found no evidence that Ortiz tricked or coerced petitioner into surrendering her rights, and concluded that petitioner had knowingly and voluntarily waived her rights. (See Lodgment No. 7 at 11-14).

2. Petitioner’s Fourth Amendment Claim

In Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (emphasis added), the Supreme Court held that, where “the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at trial.” California provides criminal defendants with such a full and fair opportunity through the procedures of CaLPenal Code § 1538.5, which permits defendants to move to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir.1990); see also Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.), cert. denied, 464 U.S. 933, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983); Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.1977).

Here, the record reflects that prior to trial, the state trial court held a hearing on a motion by petitioner to suppress evidence (i.e., petitioner’s statements) obtained during an allegedly illegal seizure that violated her Fourth Amendment rights; that the trial court reviewed all relevant documents and pursuant to the stipulation of the parties did not take live testimony; that petitioner’s counsel was afforded the opportunity to be heard after the trial court indicated its tentative ruling; and that the trial court gave ample consideration to petitioner’s arguments. (See 1 CT 57-81; 1 RT 9-26).

In, determining whether there was a full and fair opportunity for litigation of a habeas petitioner’s Fourth Amendment claim, courts also consider the extent to which the claim was briefed before and considered by the state appellate courts. See Terrovona v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir.1990), cert. denied, 499 U.S. 979, 111 S.Ct. 1631, 113 L.Ed.2d 726 (1991); Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir.1981). Here, the record reflects that petitioner’s Fourth Amendment claim was briefed before and considered by the California Court of Appeal, which issued a reasoned decision rejecting the claim. (See Lodgment No. 3 at 12-32; Lodgment No. 7 at 4-14). The Fourth Amendment claim also was briefed before and considered by the California Supreme Court. (See Lodgment No. 8 at 4-10; Lodgment No. 9).

Thus, based on the Court’s own review of the record, the Court finds that petitioner did receive a full and fair opportunity to litigate her Fourth Amendment claim in the state courts. The Court therefore concurs with respondent that petitioner’s Fourth Amendment claim is not cognizable on federal habeas review since it is barred by Stone.

3. Petitioner’s Fifth Amendment (Miranda) claim

A suspect who is subject to custodial interrogation has the right to remain silent. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see also Dickerson v. United States, 530 U.S. 428, 442, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); United States v. Ross, 123 F.3d 1181, 1187 (9th Cir.1997), cert. denied, 522 U.S. 1066, 118 S.Ct. 733, 139 L.Ed.2d 670 (1998). “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” See Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir.1988). However, an officer’s obligation to give a suspect Miranda warnings before interrogation arises only when the individual is “in custody.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). To determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide “whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (internal quotation marks omitted); Yarborough v. Alvarado, 541 U.S. 652, 663, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). This determination “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323, 114 S.Ct. 1526.

Here, there are two components to petitioner’s Miranda claim. First, petitioner contends she should have been given Miranda advisements at the beginning of her interview with Detective Ortiz. Second, petitioner contends that Detective Ortiz did not “scrupulously honor” her request to terminate the interview, thereby vitiating the Miranda waiver obtained immediately thereafter. Petitioner maintains that the admission at trial of her statements to Detective Ortiz prejudiced her. (See Pet. 12-15; Pet. Mem. at 12-32).

a. The State courts’ determination that petitioner was not in custody at the start of her interview was objectively unreasonable.

As set forth above, in rejecting petitioner’s suppression motion, the trial court found that petitioner was not unlawfully detained, that petitioner was not compelled to go to the police station, and that her statements were voluntary. The California Court of Appeal found that “[bjecause the facts indicated that the contact was not a detention up to this point, it is a foregone conclusion that the interrogation did not begin in a custodial setting.” (See Lodgment No. 7 at 10). Petitioner, however, contends that she was in custody for Miranda purposes at the time that she was taken into the interview room when Detective Ortiz returned from the autopsy because she had been placed in a police station lounge with an officer specifically assigned to sit with her, and the officer “would not let [her] leave.” (See Pet. Mem. at 22 (citing petitioner’s declaration at 1 CT 110), 25).

The California Court of Appeal did identify the correct legal standard for evaluating whether an interrogation is custodial, citing People v. Ochoa, 19 Cal.4th 353, 401, 79 Cal.Rptr.2d 408, 966 P.2d 442 (1998), which in turn relied on Thompson v. Keo-hane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995) (The test for whether an individual is in custody is an objective one: the issue is whether there was a ‘formal arrest or restraint on free-dora of movement of the degree associated with a formal arrest’) (internal citations omitted). The determination of whether an individual is “in custody” for purposes of Miranda is a mixed question of law and fact; but, “the state trial court’s answers to the ‘scene-and-action-setting questions’ (i.e., the underlying factual questions) still are entitled to a presumption of correctness.” Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.) (quoting Keohane, 516 U.S. at 111-12, 116 S.Ct. 457), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000).

Here, the California Court of Appeal found that the trial court had “impliedly rejected” petitioner’s statement in her declaration that she had told the officer that she wanted to go home, but the officer refused to let them leave. (See Lodgment No. 7 at 9). However, that “implicit” credibility finding is not entitled to a presumption of correctness under Taylor v. Maddox, 366 F.3d 992 (9th Cir.), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004) because the State courts’ fact-finding process was defective. In Taylor, the Ninth Circuit clarified the interplay between 28 U.S.C. § 2254(d)(2) and (e)(1). The Ninth Circuit held that § 2254(d)(2) “most readily” applies where the petitioner challenges the state court’s findings or fact-finding processes entirely on the state record, and that only once the State court’s fact-finding process has survived intrinsic review, or where the petitioner does not raise an intrinsic challenge to the facts, are the State court findings dressed in a presumption of correctness. See Taylor, 366 F.3d at 999; see also Sarausad v. Porter, 479 F.3d 671, 699 n. 5 (9th Cir.2007) (“ § 2254(e)(1) does not apply to challenges brought under § 2254(d)(2)”). The Ninth Circuit described several scenarios where a State court’s fact-finding process itself is defective: where a State court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence; where the State court “plainly misapprehends or misstates the record” in making the findings; or where the State court had before it evidence that supports the petitioner’s claim, but where the State court “apparently ignores” that evidence. Id.

Here, the State courts’ fact-finding process with respect to the credibility of petitioner’s statements regarding what transpired at the police station prior to the commencement of her interview does not survive intrinsic review. In issuing its ruling, the trial court made no mention of the circumstances surrounding petitioner’s wait once she arrived at the police station. (See 1 RT 14-15). While the trial court vaguely acknowledged during argument defense counsel’s characterization of the officer as someone sent to “guard” petitioner while she waited at the station (see 1 RT 20), the trial court did not discuss petitioner’s specific allegations regarding what transpired while she sat with the officer in the lounge — i.e., that she asked to leave and was rebuffed, that when she got up, the officer got up, and that she asked to make phone calls but was denied. As noted above, by stipulation of the parties, the trial court here did not hear live testimony at the hearing on the suppression motion (see 1 RT 24-25), and thus had no basis for discrediting petitioner’s account based on her demeanor while testifying. In its opposition to the motion to suppress, the prosecution did not contest petitioner’s factual account of her wait at the station, and submitted no exhibits or declarations to contradict it. As the Ninth Circuit noted in Taylor, a negative inference can be drawn from the prosecution’s failure to produce, at least through declaration, the police officer who was assigned to sit with petitioner. See Taylor, 366 F.3d at 1013 n. 15 (noting that “it would be a fair inference here that the testimony of ... the officer [who had been involved in the custodial interrogation but whose testimony had not been presented] would have been unfavorable to the state.”).

Therefore, to the extent that the trial court even made an “implicit” credibility finding with respect to petitioner’s statements regarding what transpired at the police station prior to the commencement of petitioner’s interview, the Court finds that such “implicit” credibility finding was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Therefore, the State courts’ “implicit” credibility finding is not presumed correct. See Perez v. Rosario, 459 F.3d 943, 950 (9th Cir.2006). Under Taylor then, it is necessary to set aside the State courts’ findings and make new ones. See 366 F.3d at 1008. Since petitioner’s account of what transpired at the police station prior to the commencement of her interview was uncontradicted, the Court will credit it. Further, in light of petitioner’s account, the Court finds and concludes that the State courts’ determination that petitioner was not already in custody at the start of her interview was objectively unreasonable for the reasons discussed below.

In Alvarado, 541 U.S. at 655-56, 124 S.Ct. 2140, a 17-year-old suspect in a homicide was taken to the police station by his parents for questioning. The Supreme Court found that the State courts’ finding that he was not in custody did not involve an unreasonable application of clearly established Supreme Court law because ignoring for the moment the deferential standard under § 2254(d)(1), “fair-minded jurists could disagree over whether Alvarado was in custody.” Because of the “differing indications,” the State court’s application of the custody standard was reasonable. See id. at 665, 124 S.Ct. 2140. Here, by contrast, the Court finds that fair-minded jurists could not disagree over whether petitioner was in custody at the start of her interview. The factors that overwhelmingly favor a finding that petitioner was in custody are: petitioner was driven to the station by police because Lugo’s vehicle had been impounded by police precisely because of Dana’s suspicious death (see 1 RT 213), and thus petitioner’s level of control over her presence was minimal; she waited for more than seven hours to be interviewed by Detective Ortiz at the police station, guarded by a police officer who had been assigned to sit with her and Lugo from the time they arrived; petitioner was never told that she was free to leave and was never told she was not under arrest; petitioner asked to leave and was not allowed to leave; petitioner asked to use the phone and was not allowed to do so; every time petitioner got up in the police lounge, so did the officer guarding her; petitioner’s interview lasted some three hours, including an hour and a half before she was given Miranda warnings; although Ortiz did not threaten petitioner with arrest or prosecution, she repeatedly told her that someone was “lying” to her; that she needed to know the truth because someone “beat” that little girl; and that petitioner had “better ... explain what happened”; petitioner was never given an opportunity for a break during the interview except a de facto one when Detective Ortiz herself needed to attend to police business, and then, petitioner was instructed to “stay here”; and finally, petitioner was arrested at the conclusion of the interview. Compare United States v. Wauneka, 770 F.2d 1434, 1438-39 (9th Cir. 1985) (suspect in custody where he was transported to BIA office by two armed officers, was placed in large conference room with four to five officers who each questioned him, where officers were accusatory, questioning lasted over an hour, suspect broke down crying but questioning continued, he had no means of transportation, and he was not offered an opportunity to leave prior to confession); United States v. Ollie, 442 F.3d 1135, 1137-40 (8th Cir.2006) (parolee in custody where interview took place at police station, and although twice told he was not under arrest, his agreement to talk to police showed little more than an absence of resistance and response to pressure) with Mathiason, 429 U.S. at 494, 97 S.Ct. 711 (person not in custody where he comes voluntarily to the police station, is immediately informed that he was not under arrest, and is allowed to leave at the close of a half-hour interview); California v. Beheler, 463 U.S. 1121, 1121-22, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (same); and People v. Stansbury, 9 Cal.4th 824, 831-32, 889 P.2d 588, 38 Cal.Rptr.2d 394 (Cal.) (suspect not in custody when he was asked if he would come to police station and voluntarily agreed, was offered the choice of taking his own car or riding in the front seat of police car, was twice told police only wanted to question him as a “possible witness,” and where interview was brief and not accusatory), cert. denied, 516 U.S. 923, 116 S.Ct. 320, 133 L.Ed.2d 222 (1995).

The only factors weighing in favor of a finding that petitioner was not in custody are: she voluntarily agreed to go to the police station in the first instance; she was not told she was under arrest or threatened with arrest or prosecution; and she waited for her interview in an apparently fairly comfortable police lounge. However, these factors are not persuasive in light of the other circumstances. Though petitioner was not told she was under arrest, neither was she told that she was not under arrest or was free to leave, and in fact when she asked to leave, she was not allowed to do so. Indeed, she was not even allowed to make phone calls. That petitioner waited in a police lounge as opposed to being handcuffed to a chair in an interrogation room, for example, is of little import in light of the fact that she was guarded by a police officer for the duration of her seven-plus hour wait — one who got up every time she did. Finally, that petitioner voluntarily went to the police station is not itself sufficient to support a finding that she was not in custody once she arrived at the station and was subsequently guarded by an officer who would not let her leave. While the initial questioning of petitioner was more general in nature— geared toward eliciting background information, and only as the interview progressed did the questioning focus more on petitioner’s actions, this does not suggest petitioner was not in custody at the start of her interview. Whether police actually considered petitioner a suspect by the time she arrived at the station or by the time she was taken in for an interview is irrelevant when undisclosed; the only relevant inquiry is how a reasonable person in the suspect’s position would have understood his situation. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Stansbury, 511 U.S. at 324, 114 S.Ct. 1526.

Given the circumstances described supra, the Court finds that a reasonable person in petitioner’s position would not have felt free to leave while being guarded by a police officer in a police lounge for an entire day, particularly when the person had asked to leave and been rebuffed. Further, the Court finds that the kinds of restraints put on petitioner’s movement while she waited in the police lounge were “of the degree associated with a formal arrest.” See Stansbury, 511 U.S. at 322, 114 S.Ct. 1526. The Court therefore finds and concludes that petitioner’s constitutional rights under the Fifth Amendment were violated when she was not read her Miranda rights at the commencement of her interrogation, and that the State courts’ determination to the contrary was objectively unreasonable.

However, petitioner is not entitled to habeas relief on her Miranda claim unless the constitutional error had “substantial and injurious effect or influence in determining the jury’s verdict” under Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Sims v. Brown, 425 F.3d 560, 570 (9th Cir.2005) (applying Brecht to confession obtained in violation of Miranda), amended by 430 F.3d 1220 (9th Cir.2005), cert. denied, — U.S. —, 127 S.Ct. 62, 166 L.Ed.2d 56 (2006). Here, there is a preliminary determination to be made before the issue of prejudice can be decided: whether petitioner’s statement made after the Miranda warnings were given would have been admissible even though her unwarned statement was not.

b. Petitioner’s post-Miranda statement would have been admissible at trial nothwithstanding the Miranda violation.

For the following reasons, the Court finds and concludes that petitioner’s post-Miranda statement would have been admissible at trial notwithstanding the Miranda violation.

i. Detective Ortiz did not deliberately employ a two-step interrogation strategy to undermine Miranda.

In Missouri v. Seibert, 542 U.S. 600, 604, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the Supreme Court addressed the admissibility of a second confession made after Miranda warnings were given “midstream” during an interrogation, following an “unwarned” confession. At a hearing to exclude all of Seibert’s statements, the officer testified that he had made a “conscious decision” to withhold Miranda warnings, using a technique whereby he would “question first, then give the warnings, and then repeat the question ‘until [he] get[s] the answer that she’s already provided once.’ ” Id. at 605, 124 S.Ct. 2601. A plurality of the Supreme Court concluded that the postwarning statements were inadmissible. Id. at 617, 124 S.Ct. 2601. It held that the “threshold issue” when interrogators question first and warn later is whether it would “be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. at 611-12, 124 S.Ct. 2601. The Court found that in the circumstances exemplified here, the warnings could not have served their purpose. Rather, upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect’s likely reaction would be “perplexity about the reason for discussing rights at that point.” Worse yet, telling a suspect that anything he says could be used against him without expressly excepting the statement just given “could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail.” Seibert, 542 U.S. at 613, 124 S.Ct. 2601.

The plurality distinguished Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), wherein the Supreme Court had found a postwarning statement admissible where the suspect had made an earlier unwarned statement. Because the earlier admission in Elstad was made during a brief discussion in the suspect’s living room that resulted from the officer’s “innocent neglect” to Mirandize the defendant and did not determine the character of the later, warned confession made during a systematic interrogation, the warned confession was admissible. The plurality characterized the Elstad court’s reading of the living room conversation as a “good-faith Miranda mistake ... open to correction by careful warnings before systematic questioning in that particular case [and] posing no threat to the warn-fírst practice generally.” Seibert, 542 U.S. at 614-15, 124 S.Ct. 2601.

In his concurrence, Justice Kennedy felt the plurality’s conclusion that “whenever a two-stage interview occurs, admissibility of the postwarning statements should depend on “whether [the] Miranda warnings delivered midstream’ ” were effective, given the specific facts of the case, “cut[ ] too broadly.” Justice Kennedy argued that “the admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” (Emphasis added). If the deliberate two-step strategy was used, the postwarning statements relating to the pre-warning statements must be excluded unless curative measures were taken before the postwarn-ing statement was made. Seibert, 542 U.S. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring).

In Seibert, then, the Supreme Court did not set forth a “per se” inadmissibility rule regarding a second, postwarning statement following an unwarned statement. The Ninth Circuit has found Justice Kennedy’s concurrence in Seibert to be the Supreme Court’s holding “because it is the narrowest grounds with which the majority of the Court would agree.” United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir. 2006); see also United States v. Narvaez-Gomez, 489 F.3d 970, 973 (9th Cir.2007). The Ninth Circuit has found that “deliberateness” is shown where:

“objective evidence and any available subjective evidence, such as an officer’s testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning. Objective evidence includes the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.” Narvaez-Gomez, 489 F.3d at 973 (internal quotations omitted).

Here, although no State court had an occasion to consider whether the postwarn-ing statement would have been inadmissible under Seibert, there is evidence in the record on which that determination can be made. The objective evidence shows that petitioner was taken to the police station in a police vehicle following a lengthy wait at the hospital; petitioner waited in a police lounge for some seven-plus hours with a police officer assigned to sit with her; at nearly 4:00 p.m. the day after her daughter’s death, Detective Ortiz took her into an interrogation room and without Miranda warnings, questioned her for an hour and a half regarding her background, family, relationship with Lugo and his family, and what had happened to Dana; when petitioner made statements regarding having thrown Dana to the floor when Dana twice stood up the night she died, having gotten “mad” and frustrated with her kids, and having had no intent to kill Dana, Ortiz took a break and exited the room; within minutes, Ortiz returned to the room after petitioner indicated to another officer that she wanted to leave; Ortiz then gave petitioner Miranda warnings and continued to question her, asking her to “tell me again” what happened to the little girl the night before ... when you put her to bed, and making references to what petitioner had already stated (i.e., Dana did not want to go to sleep; “you grabbed her and threw her down”; “she landed face down,” etc.); and petitioner repeated her earlier statements, and then, when Ortiz and petitioner were briefly joined by another officer, petitioner demonstrated with a rag doll how she had thrown Dana down to the floor.

The subjective evidence includes Detective Ortiz’s testimony at trial. Ortiz testified that at the police station, she first interviewed Lugo’s sister, and then attended Dana’s autopsy, where she learned the cause of death was blunt force trauma to the abdominal area, which caused massive internal bleeding; and that after the autopsy, she interviewed petitioner in Spanish. (See 1 RT 214-17). Ortiz had additionally testified at the preliminary hearing that at the beginning of the interview with petitioner, she was not under arrest, but that she (Ortiz) gave her Miranda warnings during the interview. Ortiz testified: “During the initial conversation with her, she had stated she had simply put the child to sleep on the living room floor. As we continued to talk she then indicated that she had been angry and frustrated and that she had thrown the child down. When she started making those statements, I advised her of her right[s].” Ortiz agreed with the prosecutor’s characterization that she had given petitioner her Miranda rights out of “an abundance of caution.” (See 1 CT 17-18).

While the objective factors considered by the Court do tend to weigh in favor of a finding of “deliberateness,” the subjective factors do not. As set forth, Ortiz testified that she only gave petitioner Miranda warnings once she started making what Ortiz apparently decided were inculpatory statements, and she agreed with the prosecutor that it was out of “an abundance of caution.” According to Ortiz, petitioner was not formally under arrest when she was taken to the police station, when her interview began, or when she was advised of her Miranda rights (see 1 RT 213-14, 1 CT 6), and the evidence does not show that, at least in that first (pre-warning) interview, Ortiz was interviewing petitioner for the purpose of getting a confession out of her. (See 2 RT 419 (Ortiz testifying that the goal of an interrogation is not to get a confession, but to get the truth)). By the time she interviewed petitioner, although she knew the cause of death, she did not know who was responsible for Dana’s injuries. (See 2 CT 465, 478, 500-503, 507 (Ortiz asking petitioner about Lugo’s family members and whether they had ever done anything to the children, whether Dana had complained of injuries before, whether petitioner had heard Dana scream or cry before Lugo knocked on the door, and whether anyone at the home had a reason to lie to Ortiz)). On this record, the Court is not prepared to find that Detective Ortiz employed a two-step strategy to deliberately undermine Miranda.

ii. Petitioner’s postwaming statement was voluntary.

Under Justice Kennedy’s concurrence in Seibert, since Detective Ortiz did not deliberately employ a two-step interrogation strategy to undermine Miranda, the admissibility of petitioner’s postwarning statement would have been governed by the principles of Elstad. There, the Supreme Court held that, “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. [...]” 470 U.S. at 313, 105 S.Ct. 1285. The Ninth Circuit has held that “[t]he test for determining whether a confession is voluntary 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.’ ” Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir.1997), cert. denied, 522 U.S. 1130, 118 S.Ct. 1083, 140 L.Ed.2d 140 (1998); see also Henry v. Kenan, 197 F.3d 1021, 1026-27 (9th Cir. 1999) (“The test of voluntariness is well established: ‘Is the confession the product of an essentially free and unconstrained choice by its maker?’ ”).

Here, there is no evidence that police used deliberately coercive or improper tactics to obtain the initial unwarned statement from petitioner. Neither “the environment nor the manner of ‘interrogation’ ” was coercive. Elstad, 470 U.S. at 315, 105 S.Ct. 1285. Petitioner was held in a police lounge for several hours prior to questioning and though an officer was assigned to sit with her, she slept while she waited for Ortiz to return from Dana’s autopsy. There is no evidence that Ortiz used physical force against petitioner, that she threatened her in any way, or that she denied any of petitioner’s basic needs. In fact, when Ortiz took her into the interrogation room, the first thing she did was check on petitioner’s well-being. (See 2 CT 442 (Ortiz, at start of interview, asking whether petitioner had slept and eaten, and offering her water)). Ortiz’s repeated advisements to petitioner to tell the truth and her misrepresentations about other persons’ accounts do not amount to coercion. See Amaya-Ruiz, 121 F.3d at 494-95. The circumstances present here sim