Lujan v. Garcia, No. 10-55637 (10-29-13)(Bencivengo, D.J., with Tashima and Bybee).

The 9th affirms in part the granting of habeas relief in a first degree murder case. The police violated Miranda when they failed to advise the petitioner of his right to counsel during custodial interrogations. The interesting issue is the petitioner's subsequent statements made during trial testimony. The 9th affirms the suppression of such statements in the state's case in chief as "fruit of the poisonous tree." Such relief has not been undermined by Elstad or Supreme Court cases. The 9th did vacate the district court's relief, which was to give the state the option of release or reduction of the charges to second degree murder. The latter option -- reduction -- was not proposed by the state courts, and overstepped the admittedly broad powers of relief a district court has in shaping habeas relief. The district court fashioned the relief in reviewing the trial evidence, and this is inappropriate under the circumstances.