Arnold v. Runnels

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GRADY ARNOLD,  No. 04-15194

Petitioner-Appellant,

v.  D.C. No.

CV-01-20810-JF

D.L. RUNNELS,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Northern District of California

Jeremy Fogel, District Judge, Presiding

Argued and Submitted

January 13, 2005—San Francisco, California

Filed August 24, 2005

Before: Myron H. Bright,* A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Bright;

Dissent by Judge Callahan

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation.

11385

11388 ARNOLD v. RUNNELS

COUNSEL

Amitai Schwartz, Esq., Elizabeth Letcher, Esq., Emeryville,

California, for the appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief

Assistant Attorney General, Gerald A. Engler, Senior Assis-

tant Attorney General, Peggy S. Ruffra, Supervising Deputy

Attorney General, Morris Beatus, Deputy Attorney General,

San Francisco, California, for the appellee.

ARNOLD v. RUNNELS 11389

OPINION

BRIGHT, Circuit Judge:

Grady Arnold, at age thirty-six, was sentenced by a Califor-

nia state court to serve a forty-one-year to life imprisonment

sentence as a third-strike offender, upon being convicted of

attempted armed robbery, possession of a firearm by a con-

victed felon, and shooting at an occupied building in violation

of the California Penal Code. His conviction was affirmed by

the state court of appeal. Following denial of review by the

Supreme Court of California, Arnold sought relief on several

grounds pro se through a writ of habeas corpus from the fed-

eral district court, under 28 U.S.C. § 2254. The court denied

the writ.1

We granted a certificate of appealability as to the sole ques-

tion of whether the trial court violated Arnold’s Fifth Amend-

ment rights by admitting a tape recording of certain utterances

Arnold made during an interrogation, even though Arnold had

said he did not want to talk on tape and responded to all sub-

stantive questions on tape by saying “no comment.”

Two critical facts control the outcome of this case: Arnold

unequivocally invoked his right not to speak on tape by say-

ing he did not want to talk on tape; further, he never thereafter

waived that right. Nonetheless, the interrogator turned the

tape recorder on and induced Arnold to respond to questions.

The trial court allowed Arnold’s “no comment” utterances to

be used against him. The Miranda2 rule requires a remand for

1

Arnold was tried in the Superior Court of the State of California in and

for the County of Alameda. His direct appeal was heard by the Court of

Appeal of the State of California, First Appellate District, Division Two.

His petition for habeas corpus was heard by the United States District

Court for the Northern District of California. Arnold is represented by

counsel in this appeal. He was also represented by (different) counsel in

the California Court of Appeal.

2

Miranda v. Arizona, 384 U.S. 436 (1966).

11390 ARNOLD v. RUNNELS

a new trial. Thus, we reverse the decision of the district court

and direct the issuance of the writ of habeas corpus.

I.

We review de novo the district court’s decision to grant or

deny a habeas petition under 28 U.S.C. § 2254. Leavitt v.

Arave, 371 F.3d 663, 668 (9th Cir. 2004). Under the Antiter-

rorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254(d), a petitioner must demonstrate that the state court’s

decision on the merits was contrary to, or involved an unrea-

sonable application of, clearly established federal law under

United States Supreme Court precedent, or that the decision

was based on an unreasonable determination of the facts.

Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003); Ramirez v.

Castro, 365 F.3d 755, 762 (9th Cir. 2004). State court find-

ings of fact are presumed to be correct unless the petitioner

rebuts the presumption with clear and convincing evidence.

Davis v. Woodford, 333 F.3d 982, 991 (9th Cir. 2003).

If the state courts thus unreasonably applied the law or

determined the facts, we must consider whether the error was

harmless, under the Kotteakos3 harmless error standard.

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

II.

Arnold argues that the state trial court violated his Fifth

Amendment rights by admitting into evidence a tape record-

ing of a portion of an interrogation. Police officers suspected

Arnold of participating in an attempted armed robbery that

occurred in September 1995. In July 1996 two officers inter-

rogated Arnold, who was in prison on an unrelated matter.

At the beginning of the interrogation, the primary interro-

gator advised Arnold of his rights under Miranda. Arnold

3

Kotteakos v. United States, 328 U.S. 750 (1946).

ARNOLD v. RUNNELS 11391

orally waived those rights and filled out and signed a “waiver

card.” That portion of the interrogation was not tape recorded.

Approximately thirty minutes into the interrogation, the pri-

mary interrogator indicated that he was going to tape record

part of the interrogation. Arnold said that he did not want to

talk on tape. Disregarding Arnold’s unequivocal statement,

the interrogator turned the tape recorder on and began asking

Arnold questions. After some prefatory remarks, the interro-

gator recited the facts of Arnold’s oral and written Miranda

waiver at the beginning of the interrogation and asked Arnold

if the recitation was correct. Arnold answered, “yeah.” The

interrogator then asked a series of substantive questions, to

each of which Arnold replied, “No comment.”

Notably, the interrogator did not ask Arnold if he was

waiving his right to refuse to speak on tape, and Arnold did

not waive that right. There was no talk of Miranda rights

beyond the statement of historical fact that Arnold had signed

the waiver card half an hour earlier.

These facts of the interrogation are clear — and uncontra-

dicted — from two sources in the record: the testimony of the

interrogating officer and the transcript of the tape recording.4

The officer testified about the tape recording as follows:

Q. At some point you actually did something with

the tape recorder which would indicate that you

were getting ready to start recording?

A. Yes.

Q. And when you did that, did Mr. Arnold have

any particular reaction?

4

We hereby grant Arnold’s unopposed motion to augment the record to

include a transcript of the taped portion of the interrogation.

11392 ARNOLD v. RUNNELS

A. He said he didn’t want to talk on-tape.

....

Q. Now, notwithstanding the fact that Mr. Arnold

told you he did not want to talk on-tape, did you

go ahead and activate the tape anyhow?

A. Yes.

Q. When you activated the tape, did you go over

again the admonishment and waiver of rights?

A. Yes.

Q. Did Mr. Arnold acknowledge on-tape that he

had agreed to waive his rights and talk to you?

A. Yes.

The transcript of the tape recording reads as follows:

4321 Testing. Testing. Yeah, today is, uh, July 12,

1996. It’s about twelve noon. I’m Sergeant Joseph

Aguirre of the Oakland Police Department Robbery

Unit presently in Susanville State Prison. Present

also is my partner, Sergeant Earl Sherman, and the

subject of the interview is Mr. Grady Arnold.

Grady, would you state your name and birth date for

the tape?

A: Grady Arnold, [unintelligible] eleven [unintelli-

gible].

Q: And, Grady, prior to turning the tape on, I filled

out the statement form with your name and

address and so forth, and, I advised you of your

ARNOLD v. RUNNELS 11393

rights. I advised you that you have the right to

remain silent, anything you say can be used

against you in a court of law. You have the

right to talk to a lawyer and have one present

while you are being questioned. If you cannot

afford a lawyer, one will be appointed to repre-

sent you for any questioning if you wish and I

asked you if you understand each of these rights

I’ve explained to you and you said, “yeah.” I

said, having these rights in mind, do you wish

to talk to us now and you said, “yeah.” I wrote

your responses here next to the questions and I

had you place your initials on the statement

form. Do you recall doing that?

A: Yeah.

Q: Okay. Now Grady, we were talking to you

about an attempted robbery that occurred up at

the Shell gas station at 2120 Montana, which

occurred on September 25, 1995 . . . about

11:30 at night . . . ah, under . . . it’s reported

under Oakland Police Department Report No.

95-91681. And, we asked you where you’d

been that day and you wanna tell us where you

started off?

A: No comment.

Q: ‘Kay. Did you tell us that you were at your

father’s house earlier in the day?

A: No comment.

Q: Grady, were you at the gas station?

A: No comment.

11394 ARNOLD v. RUNNELS

Q: Isn’t it true that you just finished telling us that

you’ve never been to the gas station that —

A: No comment.

Q: — you never touched anything, and that you’ve

never touched the gun? Is that true, Grady?

A: No comment.

Q: Grady, did you — you were telling us earlier

that you wanted to give a statement, have you

now changed your mind, Grady?

A: No comment.

Q: Do you want to give a statement or don’t you?

A: No comment, man.

Q: [other voice] So, Grady, what you’re saying . . .

any question we ask you at this time you’re

going to say no comment, is that correct?

A: No comment.

Q: No comment. Okay. Well, Grady, I’ll go ahead

and conclude the interview here, it’s uh, 12:03.

This tape recording was referred to by the prosecutor in his

opening statement, introduced into evidence, and highlighted

in the State’s closing argument.

III.

The state courts unreasonably applied Fifth Amendment

law as established by the Supreme Court. The state courts and

the federal district court (“prior courts”) essentially ignored

ARNOLD v. RUNNELS 11395

Arnold’s unequivocal statement that he did not want to talk on

tape. The prior courts did not hold that Arnold’s statement

was equivocal. They simply ignored the statement, instead

focusing entirely on Arnold’s “no comment” responses when

the interrogator turned the tape recorder on despite Arnold’s

clear statement that he didn’t want to talk on tape.5

[1] Any reasonable application of the law must begin by

recognizing that Arnold clearly and unequivocally invoked

his Miranda rights selectively, with respect to a tape-recorded

interrogation. See Connecticut v. Barrett, 479 U.S. 523, 529

(1987) (holding that a suspect can selectively invoke Miranda

rights as to a written statement, but waive them as to oral

interrogation; and explaining that the words of a Miranda

request will be “understood as ordinary people would under-

stand them”). See also Michigan v. Mosley, 423 U.S. 96, 103-

04 (1975); Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988).

Any reasonable application of the law must recognize that

Arnold’s statement precluded the interrogator from turning on

the tape recording during the interrogation. See Miranda, 384

U.S. at 473-74 (“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.”).

5

The state court of appeal noted that, “The sergeant then indicated that

he wanted to tape record appellant, and appellant stated that the [sic] did

not want to ‘talk on tape,’ ” but passed over this fact in silence. The fed-

eral district court fails even to mention this statement of Arnold’s,

although the court does refer to the court of appeal opinion as setting forth

the facts of the case.

No prior decision in this case has explained why Arnold’s first state-

ment can be ignored. It may be that the prior courts operated under the

mistaken impression that immediately after invoking the right, Arnold

waived it. The state court of appeal stated that after the interrogator turned

on the tape recorder, “Appellant reiterated his waiver of Miranda rights.”

It is clear from the record, however, that there was no new waiver, but

merely a statement that at the beginning of the interrogation — before

Arnold said he didn’t want to talk on tape — he had signed a waiver card.

11396 ARNOLD v. RUNNELS

[2] The dissenting opinion reasons that Arnold’s invocation

of his Fifth Amendment right was not unambiguous, analogiz-

ing this case, as the prior courts did, to Davis v. United States,

512 U.S. 452 (1994), a case involving the invocation of the

right to counsel. We have considered, but reject, this argu-

ment. The Supreme Court noted in Davis that “a suspect need

not speak with the discrimination of an Oxford don.” Id.

(internal quotations marks and citation omitted). The words of

the request will be “understood as ordinary people would

understand them.” Barrett, 479 U.S. at 529. Thus, in applying

Davis, neither the Supreme Court nor this court has required

that a suspect seeking to invoke his right to silence provide

any statement more explicit or more technically-worded than

“I have nothing to say.”

For example, applying Supreme Court case law, in United

States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001), we held

that the prosecution violated a defendant’s Fifth Amendment

right to silence under Miranda when it introduced at trial the

defendant’s post-arrest, pre-Miranda statement, “I have noth-

ing to say, I’m going to get the death penalty anyway.” Id. at

912.6 In Bushyhead, the government argued that Bushyhead

was not in fact silent, but rather, voluntarily chose to talk to

the agent. Id. We disagreed, reasoning that Bushyhead’s state-

ment constituted “the invocation of silence itself.” Id. Because

Bushyhead involved pre-Miranda silence, its reasoning

applies with even more force here, where the relevant state-

6

We are, of course, mindful of the fact that under 28 U.S.C. § 2254(d),

we cannot find constitutional error merely because a state court’s decision

conflicts with Ninth Circuit precedent. Our cases, however, “may be per-

suasive authority for purposes of determining whether a particular state

court decision is an ‘unreasonable application’ of Supreme Court law, and

also may help us determine what law is ‘clearly established.’ ” Duhaime

v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). It is in this light and

for this purpose that we discuss Ninth Circuit precedent.

ARNOLD v. RUNNELS 11397

ments occurred after Arnold had been given his Miranda warn-

ings.7

Indeed, we held, after Davis, that a suspect unequivocally

invoked his right to silence even when he responded affirma-

tively — when asked whether he desired to have his sworn

statement taken regarding his true citizenship and nationality

and his activity at the house — with, “Yes, regarding my . . .

citizenship.” United States v. Soliz, 129 F.3d 499, 504 (9th

Cir. 1997), overruled on other grounds by United States v.

Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc). We con-

cluded “that this statement constituted an unequivocal invoca-

tion of Soliz’s right to remain silent on all issues, except his

citizenship.” Id.

[3] In contrast, just as in Davis, where a suspect’s request

for counsel is qualified with words such as “maybe” or

“might,” we have concluded that the suspect did not unam-

biguously invoke his right to counsel. Thus, in Clark v. Mur-

phy, 331 F.3d 1062 (9th Cir. 2003), we held that the state

court’s conclusion that “I think I would like to talk to a law-

yer” was not an unambiguous request for counsel was not

contrary to clearly established federal law. Id. at 1072. Simi-

larly, in United States v. Doe, 60 F.3d 544 (9th Cir. 1995), we

concluded that “maybe he ought to see an attorney” was not

a clear and unambiguous request for counsel. Id. at 546. See

also United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir.

1994) (contrasting statements qualified with words such as

“maybe” with Cheely’s unequivocal refusal to waive his right

to counsel).

7

The Supreme Court consistently has explained that “Miranda warnings

contain an implied promise, rooted in the Constitution, that ‘silence will

carry no penalty.’ ” Wainwright v. Greenfield, 474 U.S. 284 (1986) (quot-

ing Doyle v. Ohio, 426 U.S. 610, 618 (1976)); South Dakota v. Neville,

459 U.S. 553, 565 (1983) (explaining that Doyle rests on “the fundamental

unfairness of implicitly assuring a suspect that his silence will not be used

against him and then using his silence to impeach an explanation subse-

quently offered at trial”).

11398 ARNOLD v. RUNNELS

[4] Here, Arnold’s statement that he didn’t want to talk on

tape was neither ambiguous nor equivocal. Indeed, the inter-

rogating officer agreed that Arnold “was specific, he didn’t

want to talk on tape.” Unlike in Clark, there is no evidence

that Arnold qualified that statement with words of equivoca-

tion such as “maybe” or “I think.” Arnold’s statement wasn’t

so equivocal or unclear that “a reasonable officer in light of

the circumstances would have understood only that the sus-

pect might be invoking” his right to remain silent. Davis, 512

U.S. at 459 (emphasis in the original).

[5] Indeed, it is difficult to imagine how much more clearly

a layperson like Arnold could have expressed his desire to

remain silent. See Barrett, 479 U.S. at 529 (explaining that the

words of a request for counsel will be “understood as ordinary

people would understand them”). Concluding that Arnold’s

statement was ambiguous and equivocal would suggest that a

suspect never invokes his right to silence unless he intones

some sort of talismanic phrase, such as “I invoke my right to

silence under the Fifth Amendment.” If the statements in

Bushyhead and Soliz constituted invocations of the right to

silence, then Arnold’s statement that he didn’t want to talk on

tape — which arguably was even less ambiguous than the

statements in those cases — likewise constituted an invoca-

tion of his right to silence.

[6] In sum, even under the rule set forth in Davis, Arnold’s

statement that he didn’t want to talk on tape was clear and unam-

biguous.8 Arnold’s statements were tantamount to silence and

the admission of those statements was a violation of Arnold’s

Fifth Amendment privilege against self-incrimination. See

Doyle, 426 U.S. at 618; United States v. Velarde-Gomez, 269

F.3d 1023, 1032-33 (9th Cir. 2001) (en banc) (holding that

8

We have left open the question of whether the rule in Davis, which

involved the invocation of the right to counsel, applies equally to the invo-

cation of the right to silence. See Soliz, 129 F.3d at 504 n.3; Evans v.

Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996).

ARNOLD v. RUNNELS 11399

evidence of suspect’s lack of physical or emotional reaction

when confronted with discovery of marijuana in his vehicle

was tantamount to evidence of silence).

Any reasonable application of the law would then require

the government to establish that after saying he didn’t want to

talk on tape, Arnold waived the right he had, moments earlier,

invoked. See id. at 475. On this record, it would be objec-

tively unreasonable to determine that Arnold had waived his

right not to talk on tape, moments after invoking that right —

for no evidence supports such an assertion. The interrogating

officer did not testify that Arnold waived his right not to talk

on tape. More importantly, the transcript of the tape recording

— which, according to the officer, contains the Miranda

exchange in question — shows that Arnold did not waive that

right. As the prosecutor acknowledged in his opening state-

ment, this exchange was merely a reminder that Arnold had

previously been advised of his rights.

[7] The sole fact the government could cite to establish that

Arnold waived his right not to talk on tape — if the prior

courts had held the government to its burden — is that, after

the interrogator turned on the tape recorder in clear violation

of Arnold’s unequivocally expressed right, Arnold said

“yeah” when the interrogator recited the time and place of the

interrogation and the fact of Arnold’s Miranda waiver of half

an hour earlier, and then said “no comment” and “no com-

ment, man” to every substantive question — including the

question, “Do you want to give a statement or don’t you?” It

beggars the imagination to suppose that these responses, when

the interrogator turned on the tape recording despite Arnold’s

clear statement that he didn’t want to talk on tape, show that

Arnold was waiving the right he had just invoked.

[8] Additionally, to prove that Arnold waived his right not

to talk on tape, the government would have to show that such

a waiver was knowing and voluntary. See id. No such show-

ing is possible here. Arnold said he didn’t want to talk on

11400 ARNOLD v. RUNNELS

tape. The interrogator responded by turning on the tape

recorder anyway. The officer’s action implied that Arnold had

no right to refuse to talk on tape. And in his summary, on

tape, of the Miranda warning he gave Arnold half an hour

earlier, the interrogator did not add the newly relevant fact

that Arnold had a right to refuse to talk on tape even though

he had earlier agreed to talk off-tape. Far from ensuring that

Arnold knew he had a right to refuse to talk on tape, the inter-

rogator’s actions emphatically implied that Arnold had no

such right.

[9] Any reasonable application of the law must conclude

that Arnold’s responses during the tape-recorded interrogation

could not be used against Arnold at trial. See id. at 468 n.37.9

IV.

[10] Having decided that the state courts unreasonably

applied the law, we must now determine whether that error is

harmless under the Kotteakos harmless error standard, which

applies to non-constitutional error in cases on direct review

but also to constitutional error in cases on collateral review,

such as we have here. Brecht, 507 U.S. at 623. Under this

standard, error is harmless if we can say with fair assurance

that it did not have a substantial effect, injurious to the defen-

dant, on the jury’s decision-making process. See id. at 631;

Kotteakos, 328 U.S. at 765, 776.

9

Even on the question that the prior courts mistakenly focused on —

Did the “no comment” responses unequivocally invoke Miranda rights?

— the courts’ determinations are objectively unreasonable. Comparing

this case to Davis and United States v. Nordling, 804 F.2d 1466 (9th Cir.

1986), the prior courts took the phrase “no comment” from its context and

considered whether, in the abstract, “no comment” is unambiguous. But

we cannot ignore Arnold’s first statement, and we do not encounter “no

comment” in the abstract, divorced from any context. This case is there-

fore unlike Davis or Nordling. In those cases, the suspects being interro-

gated made no unambiguous statement like Arnold’s statement that he

didn’t want to talk on tape.

ARNOLD v. RUNNELS 11401

In applying this standard, we do not, of course, make fac-

tual findings drawing on testimony from the jurors concerning

their decision-making process. We conduct a de novo review

of the record. Brecht, 507 U.S. at 642 (Stevens, J., concur-

ring). Upon this review, we attempt to discern “what effect

the error . . . reasonably may be taken to have had upon the

jury’s decision[,]” bearing in mind that “[t]he crucial thing is

the impact of the thing done wrong on the minds of other men

[and women], not on [our] own, in the total setting.” Kot-

teakos, 328 U.S. at 764. See also Brecht, 507 U.S. at 643 (Ste-

vens, J., concurring). This Circuit has held that we employ our

judgment in this regard independently, “without benefit of

such aids as presumptions or allocated burdens of proof.”

Mancuso v. Olivarez, 292 F.3d 939, 950 n.4 (9th Cir. 2002).

“[I]f [we] cannot say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error, it is impossible to conclude that substantial rights were

not affected.” Kotteakos, 328 U.S. at 765.

At trial in this case, the prosecutor emphasized the impor-

tance of the improperly admitted tape recording, offering it as

evidence that Arnold is a liar and specifically that Arnold’s

claim of innocence in this case is a lie. In his opening state-

ment, the prosecutor stated:

Well, Sergeant Aguirre decided that it was going

to be Mr. Arnold’s statement and so he wanted to

preserve it on the recording, on the tape. Sergeant

Aguirre reached over and started to turn on the tape

and Mr. Arnold said, “No, no, no, no, no, no, no. I’m

not going to talk to you on the tape. I don’t want to

be recorded.” Sergeant Aguirre told him, “Well, I’m

going to record this anyhow, what you have to say,

and preserve it on tape.”

He started the tape recorder, he reminded Mr.

Arnold that he had been advised of his rights, and

11402 ARNOLD v. RUNNELS

Mr. Arnold acknowledged that he had, and began to

ask questions about what had occurred at the Shell

station. Mr. Arnold’s response to every question on-

tape was, “No comment, no comment.”

During summation, the prosecutor made the following com-

ments:

So Mr. Arnold continues to deny and deny and

deny and deny. And Sergeant Aguirre decides he

wants to go in and memorialize that denial on tape.

Big red flag, tape recording. I don’t want nothing on

tape. I don’t want nothing reported. As long as it’s

just Grady’s words against Sergeant Aguirre, he

feels like they’re not going to believe him. When

they start putting it on tape, you realize you better be

careful what you say because it’s preserved forever.

So I don’t want to do that because I’m afraid,

because I know that I’m lying and I don’t want my

reply recorded because at some point in the future I

might be able to cook up some good story.

So what happened with [sic] when Sergeant

Aguirre goes on tape? No comment. Ever gone to

that gas station? No comment. He knows it. He

knows his business. No comment.

[11] Any effect the recording could have on the jury’s

decision-making process could only be injurious to Arnold.

And given the prosecutor’s emphasis on the tape in both his

opening statement and his closing argument, we cannot say

with fair assurance that the tape recording did not have a sub-

stantial injurious effect on the jury’s decision-making process.

The government argues that the error in admitting the tape

recording was harmless “because the evidence of guilt was

compelling,” that “the State presented devastating evidence

directly connecting [Arnold] to [the crime].” The govern-

ARNOLD v. RUNNELS 11403

ment’s argument misapprehends the Kotteakos harmless error

standard.10 The question posed for us by that standard is not

whether the evidence was sufficient or whether the jury would

have decided the same way even in the absence of the error.

The question is whether the error influenced the jury. See Kot-

teakos, 328 U.S. at 763-65; Brecht, 507 U.S. at 642-43 (Ste-

vens, J., concurring).

[12] In some circumstances, as in Brecht itself, we can say

with fair assurance that though there was error, it did not sub-

stantially influence the jury. Where the prosecutor specifically

emphasizes in his opening statement and his closing argument

evidence admitted in violation of a defendant’s Fifth Amend-

ment rights, we cannot say that evidence had no substantial

influence upon the jury.

[13] Additionally, the instruction on adoptive admissions

given to the jury — an instruction referring to statements

admitted in violation of Arnold’s Fifth Amendment privilege

— further persuades us that the erroneous admission of

Arnold’s statements substantially affected the jury. Where a

defendant’s failure to reply is based on his constitutional right

to remain silent, instructing the jury that it can treat the failure

to reply as an adoptive admission violates the Fifth Amend-

ment. Griffin v. California, 380 U.S. 609, 613 (1965); Frank-

lin v. Duncan, 70 F.3d 75, 76-77 (9th Cir. 1995) (concluding

that prosecutor’s reference to defendant’s post-Miranda

silence and trial court’s instructions that jury could construe

defendant’s silence as adoptive admission of truth of direct

accusation violated defendant’s Fifth Amendment privilege

against self-incrimination).

[14] Here, the jury instruction stated that the defendant’s

silence, “in the face of an accusation . . . charging [the defen-

10

While the point does not determine whether the error was harmless,

we do not accept the government’s characterization of the evidence

against Arnold as “compelling” or “devastating.”

11404 ARNOLD v. RUNNELS

dant] with the crime for which [he] is now on trial or tending

to connect him with its commission . . . may be considered

against him as indicating an admission that the accusation

thus made was true.” See Cal. Jury Instruction — Crim.

2.71.5. Arguably, the interrogating officer’s questions “tend-

[ed] to connect” Arnold with the commission of the crime for

which he was convicted — the questions mentioned the time

and location of the robbery, and asked whether Arnold had

stated he had never been to that gas station and never touched

the gun. By following the instruction on adoptive admission,

the jury would have treated Arnold’s silence as an admission

of the truth of the officer’s accusations. Whether Arnold’s

tape-recorded statement had a “substantial and injurious effect

or influence in determining the jury’s verdict,” Brecht, 507

U.S. at 623, depends in part on how much weight the jury

gave the adoptive admission under the trial court’s instruc-

tions. Given the adoptive admission instruction and the prose-

cution’s stressing of Arnold’s silence both in its opening

statement and in its closing arguments, we cannot say with

fair assurance that the state trial court’s erroneous admission

of Arnold’s tape-recorded statement did not have a substantial

and injurious effect upon the jury’s verdict.

V.

[15] Because the state courts unreasonably applied Fifth

Amendment law clearly established by the Supreme Court,

and the error was not harmless, we reverse the decision of the

district court. We direct that a conditional writ of habeas cor-

pus issue, requiring the State of California to release Arnold

from custody in this case, unless it grants him a new trial to

commence within a reasonable period of time to be deter-

mined by the district court.

REVERSED and REMANDED with directions.

ARNOLD v. RUNNELS 11405

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent.

The state courts did not unreasonably apply clearly estab-

lished federal law. “[C]learly established Federal law under

[28 U.S.C. § 2254(d)(1)] is the governing legal principle or

principles set forth by the Supreme Court at the time the state

court renders its decision.” Lockyer v. Andrade, 538 U.S. 63,

71-72 (2003). In Lockyer, the Supreme Court held, “[a] state

court decision is contrary to our clearly established precedent

if the state court applies a rule that contradicts the governing

law set forth in our cases or if the state court 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.” Id. at 73 (citations omitted).

Here, the state courts relied on Davis v. United States, 512

U.S. 452 (1994), in determining that Arnold did not unam-

biguously invoke his right to silence. Even though Davis deals

with invoking the right to counsel, the government posits that

it should extend to cases involving the right to silence because

there appears to be no Supreme Court decision directly on

point regarding the right to silence. Although the Ninth Cir-

cuit left this question open in Evans v. Demosthenes, 98 F.3d

1174, 1176 (9th Cir. 1996), several of our sister circuits have

extended Davis to cases involving the right to silence.1

Davis is instructive here because the factual circumstances

in this case are similar. In both cases, the question is whether

the suspect invoked Fifth Amendment rights such that police

1

E.g., James v. Marshall, 322 F.3d 103, 107 (1st Cir. 2003); Simmons

v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001); United States v. Hurst,

228 F.3d 751, 759-60 (6th Cir. 2000); United States v. Mikell, 102 F.3d

470, 476-77 (11th Cir. 1996); United States v. Banks, 78 F.3d 1190, 1197-

98 (7th Cir.), vacated on other grounds by Mills v. United States, 519 U.S.

990 (1996).

11406 ARNOLD v. RUNNELS

were required to stop their custodial interrogation. The major-

ity cites no Supreme Court decision directly on point regard-

ing invocation of the right to silence. Accordingly, the state

courts’ reliance on Davis for guidance in this case was reason-

able. This is all that needs to be decided under the applicable

AEDPA standard.

I would also find that the state courts’ determination that

Arnold did not unambiguously invoke the right to silence was

objectively reasonable in light of the evidence presented.

Arnold’s “no comment” responses were objectively ambigu-

ous. Indeed, when the interrogating officers asked Arnold on

tape whether he had changed his mind about giving a state-

ment, instead of simply answering “yes,” he responded “no

comment.” This response is ambiguous, much like Davis’s

comment, “Maybe I should talk to a lawyer.” Davis, 512 U.S.

at 455.

In determining whether Fifth Amendment rights were

invoked, “likelihood” is not enough. Id. at 459. A “law

enforcement officer may continue questioning until and

unless the suspect clearly requests” to invoke his Miranda

rights. Id. at 461. “The Edwards rule seeks to ‘maintain a deli-

cate balance between ensuring that suspects are properly insu-

lated against police overreaching while allowing the law

enforcement community to perform its duties effectively.’ ”

Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003), cert.

denied, 540 U.S. 968 (2003) (quoting Smith v. Endell, 860

F.2d 1528, 1537 (9th Cir. 1988)).2 Here, the state courts rea-

sonably determined that Arnold did not unequivocally invoke

his Fifth Amendment right to silence.

Even if the state courts erred, however, such error was

2

In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held

that if a suspect requests counsel at any time during the interview, he is

not subject to further questioning until a lawyer has been made available

or the suspect himself reinitiates conversation. Id. at 484-85.

ARNOLD v. RUNNELS 11407

harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).

The jury received the following evidence against Arnold: (1)

Arnold’s fingerprints were found on the window of the cash-

ier’s booth where the attempted robbery occurred; (2) Arnold

told the primary interrogator, Sergeant Aguirre, (before being

informed of the fingerprint evidence) that he had never been

to the station “in his entire life,” despite multiple attempts to

adduce from him possible reasons why he might have been

there; (3) Williams, who was with Arnold on the night in

question, had already been convicted and had served time for

the attempted robbery by the time he testified (i.e., he had

nothing to lose by implicating himself and another mysterious

participant instead of Arnold); and, (4) Williams testified that

(a) he was dating Arnold’s sister, (b) he did not want to testify

against Arnold, and (c) Arnold approached the booth and tried

to buy cigarettes on the night of the attempted robbery.

Finally, when Arnold and Williams were arrested just hours

after the attempted robbery, officers found a gun that was bal-

listically matched to the gun fired during the incident.

The majority suggests that whether Arnold’s tape-recorded

statement had a “substantial and injurious effect” on the jury’s

verdict depends in part on how much weight the jury gave the

adoptive admission instruction. Arnold’s defense, however,

did not rest solely on his silence — he produced three wit-

nesses who said he was not at the gas station when the

attempted robbery occurred. Nevertheless, his defense was

seriously undermined by the fact that Williams changed his

story twice after telling Sergeant Aguirre that Arnold had

actively planned and participated in the robbery, Williams

was an admitted heroin addict, and Williams admitted that he

had lied to the police regarding the events in question. Addi-

tionally, there was no evidence calling into question Sergeant

Aguirre’s testimony regarding the statement that Arnold vol-

untarily made before officers turned on the tape recorder.

The evidence to convict was overwhelming, notwithstand-

ing Arnold’s “no comment” responses. The error, if any, in

11408 ARNOLD v. RUNNELS

admitting the tape, was unlikely to have had a substantial and

injurious effect or influence in determining the jury’s verdict.

For these reasons, I would affirm the district court’s denial of

habeas relief.