Harvest

MEMORANDUM **

We affirm in part and reverse in part the district court’s denial of Harvest’s petition for habeas corpus.

I. Confession

The state court’s determination that the trial court properly admitted Harvest’s confession as to the murder of Vigil was not contrary to, nor an unreasonable application of, clearly established Supreme Court law. 1 A federal court may not issue a writ of habeas corpus unless it determines that the state court applied federal law in an unreasonable way, not just that the state court applied federal law erroneously or incorrectly. 2 In the present case, we cannot say that the state court was unreasonable in concluding that Harvest did not invoke his right to remain silent as to the Vigil murder. Nor was the state court’s decision unreasonable in finding that the earlier Miranda violation did not taint Harvest’s later confession as “fruit of the poisonous tree.”

It was not unreasonable for the state court to find that Harvest only expressed his reluctance to “snitch” on his co-accomplices and talk about the details of killing the homeless man, rather than invoking his right to silence. This finding had an adequate evidentiary basis in the…

I concur in the majority’s disposition, with the exception of Part III, to which I dissent. I cannot agree with that portion of the disposition that grants Harvest’s habeas petition. The majority found that the state courts unreasonably applied clearly established federal law in determining that Harvest’s Sixth Amendment rights were not violated by the admission of hearsay statements by Pittman, his co-defendant. Even assuming that the trial court erred in admitting Pittman’s statements, the evidence independently linking Harvest to Vigil’s murder was overwhelming. See Medina v. Hornung, 386 F.3d 872, 877 (9th Cir.2004) (“The overwhelming majority of trial errors are non-structural and do not trigger habeas relief unless the error resulted in substantial and injurious effect or influence in determining the jury’s verdict, or unless the judge is in grave doubt about the harmlessness of the error.”) Harvest confessed to stabbing Vigil at least once. Myers, one of Harvest’s co-defendants, testified that Harvest led the attack on Vigil by running up to the pickup truck so that by the time that Myers arrived, Harvest had pulled open the door and was stabbing Vigil, who was sitting in…