UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TAUNO WAIDLA, Nos. 18-99001 18-99002 Petitioner-Appellee / Cross-Appellant, D.C. No. 2:01-cv- v. 00650-AG RONALD DAVIS, Warden, OPINION Respondent-Appellant / Cross-Appellee.

Appeals from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted March 1, 2023 Reargued and Submitted January 25, 2024 Pasadena, California

Filed December 23, 2024

Before: Kim McLane Wardlaw, Morgan B. Christen, and Eric D. Miller, Circuit Judges. * * The Honorable Paul J. Watford retired from the Ninth Circuit Court of Appeals on May 31, 2023. Judge Morgan B. Christen was drawn to 2 WAIDLA V. DAVIS

Per Curiam Opinion; Concurrence by Judge Christen; Partial Dissent by Judge Wardlaw

SUMMARY **

Habeas Corpus / Death Penalty

In the State of California’s appeal and Tauno Waidla’s cross-appeal from the district court’s judgment on Waidla’s habeas corpus petition challenging his California conviction and death sentence for a 1988 murder, the panel affirmed the district court’s denial of guilt-phase relief and reversed the district court’s grant of penalty-phase relief. Waidla cross-appealed the district court denial of relief on his two claims of guilt-phase error. Reviewing under 28 U.S.C. § 2254(d), the panel agreed with the district court’s assessment that Waidla’s claims lack merit. Waidla contended that his Fifth Amendment rights were violated when the State introduced his confession at trial. The trial court ruled that Waidla’s confession and pre- trial statements to the police were admissible because it found that, although Waidla had invoked his right to counsel, he later initiated dialogue with a detective. The California Supreme Court relied on Edwards v. Arizona, 451 U.S. 477 replace him on July 17, 2023 (Dkt. 94) while the Petition for Rehearing was pending. Judge Christen asked for oral argument and this appeal was reargued on January 25, 2024. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WAIDLA V. DAVIS 3

(1981), to conclude that, as a matter of law, Waidla’s question to a detective amounted to initiation of interrogation that constituted waiver of Miranda. The panel held that the California Supreme Court did not unreasonably apply Edwards and its progeny when it upheld the admission of Waidla’s pre-trial statements and confession, as fairminded jurists could conclude that law enforcement did not recommence interrogation in the sense relevant to the Edwards analysis. Waidla contended that counsel rendered ineffective assistance in four areas at the guilt phase: (1) investigating and litigating the motion to suppress Waidla’s confession; (2) counseling Waidla to recant his confession and testify to an alibi; (3) failing to investigate alternative defenses; and (4) failing to rebut the State’s expert testimony regarding the lifespan of fingerprints. The panel concluded that, as to the first and second alleged deficiencies, the California Supreme Court reasonably could have concluded that counsel met the performance standard set forth in Strickland v. Washington, 466 U.S. 668 (1984); and that the remaining alleged deficiencies did not prejudice Waidla. The State appealed the district court’s order granting penalty-phase relief on W