Anderson v. Terhune

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEROME ALVIN ANDERSON,  No. 04-17237

Petitioner-Appellant,

v.  D.C. No.

CV-00-02494-WBS

C.A. TERHUNE, Director,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted

October 9, 2007—San Francisco, California

Filed February 15, 2008

Before: Mary M. Schroeder, Stephen Reinhardt,

Sidney R. Thomas, Barry G. Silverman,

M. Margaret McKeown, Kim McLane Wardlaw,

William A. Fletcher, Ronald M. Gould, Richard A. Paez,

Richard C. Tallman, Johnnie B. Rawlinson,

Richard R. Clifton, Consuelo M. Callahan, Carlos T. Bea,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Silverman;

Partial Concurrence and Partial Dissent by Judge Bea;

Dissent by Judge Tallman

1377

ANDERSON v. TERHUNE 1381

COUNSEL

Charles M. Bonneau (argued), Sacramento, California, for the

petitioner-appellant.

Rachelle A. Newcomb, Deputy Attorney General (argued)

and Edmund G. Brown, Jr., Attorney General; Dane R. Gil-

lette, Chief Assistant Attorney General; Michael P. Farrell,

Senior Assistant Attorney General; Stephen G. Herndon,

Supervising Deputy Attorney General; Brian R. Means, Dep-

uty Attorney General; Sacramento, California, for the

respondent-appellee.

Peter C. Pfaffenroth (argued), Jeffrey T. Green, Harold L.

Rogers, Sidley Austin LLP, Washington, DC; Charles D.

Weisselberg, University of California School of Law (Boalt

Hall), Berkeley, California; David M. Porter, Sacramento,

California; Sheryl Gordon McCloud, Seattle, Washington, for

amicus curiae National Association of Criminal Defense Law-

yers.

OPINION

McKEOWN, Circuit Judge:

It is likely that few Americans can profess fluency in the

Bill of Rights, but the Fifth Amendment is surely an excep-

tion. From television shows like “Law & Order” to movies

such as “Guys and Dolls,” we are steeped in the culture that

knows a person in custody has “the right to remain silent.”

Miranda is practically a household word. And surely, when a

criminal defendant says, “I plead the Fifth,” it doesn’t take a

trained linguist, a Ph.D, or a lawyer to know what he means.

Indeed, as early as 1955, the Supreme Court recognized that

“in popular parlance and even in legal literature, the term

‘Fifth Amendment’ in the context of our time is commonly

1382 ANDERSON v. TERHUNE

regarded as being synonymous with the privilege against self-

incrimination.” Quinn v. United States, 349 U.S. 155, 163

(1955); accord In re Johnny V., 149 Cal. Rptr. 180, 184, 188

(Cal. Ct. App. 1978) (holding that the statement “I’ll take the

fifth” was an assertion of the Fifth Amendment privilege).

More recently, the Court highlighted that “Miranda has

become embedded in routine police practice to the point

where the warnings have become part of our national culture.”

Dickerson v. United States, 530 U.S. 428, 443 (2000).

We granted rehearing en banc1 in this appeal from the dis-

trict court’s denial of Jerome Alvin Anderson’s petition for

writ of habeas corpus. Anderson challenges his conviction of

special circumstances murder on the grounds that he was

denied his constitutional right to remain silent and that admis-

sion of his involuntary confession into evidence violated his

right to due process. Specifically, Anderson claims that he

invoked his Fifth Amendment right to terminate his police

interrogation and that the police officer’s continued question-

ing violated that right.

Anderson twice attempted to stop police questioning, stat-

ing “I don’t even wanna talk about this no more,” and “Uh!

I’m through with this.” After questioning continued, Ander-

son stated unequivocally, “I plead the Fifth.” Instead of hon-

oring this unambiguous invocation of the Fifth Amendment,

the officer queried, “Plead the Fifth. What’s that?” and then

continued the questioning, ultimately obtaining a confession.

It is rare for the courts to see such a pristine invocation of the

Fifth Amendment and extraordinary to see such flagrant disre-

gard of the right to remain silent.

The state court held that Anderson’s statement, “I plead the

Fifth,” was ambiguous and that the officer asked a legitimate

clarifying question. Under even the narrowest construction of

1

Anderson v. Terhune, 467 F.3d 1208 (9th Cir. 2006), reh’g en banc

granted, 486 F.3d 1155 (9th Cir. 2007).

ANDERSON v. TERHUNE 1383

the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.

§ 2254(d) (“AEDPA”), the state court erred in failing to rec-

ognize this constitutional violation. The continued question-

ing violated the Supreme Court’s bright-line rule established

in Miranda. Once a person invokes the right to remain silent,

all questioning must cease:

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. At this

point he has shown that he intends to exercise his

Fifth Amendment privilege; any statement taken

after the person invokes his privilege cannot be other

than the product of compulsion, subtle or otherwise.

Miranda v. Arizona, 384 U.S. 436, 473-74 (1966); see also

Michigan v. Mosley, 423 U.S. 96, 103 (1975) (explaining that

once a defendant has invoked his right to remain silent, that

right must be “scrupulously honored”) (quoting Miranda, 384

U.S. at 479).

An examination of the interrogation transcript2 reveals that

the state court’s conclusion that Anderson’s invocation was

ambiguous was an unreasonable application of Miranda and

based on an unreasonable determination of the facts. See 28

U.S.C. § 2254(d)(1), (2). Only one reasonable conclusion can

be gleaned from his statements, especially his last declaration,

“I plead the Fifth”: Anderson invoked his right to remain

silent and wanted to end the interrogation. Construing the

officer’s statement, “Plead the Fifth? What’s that?”, as asking

2

Anderson filed a motion requesting that the en banc panel take judicial

notice of the entire transcript of the interrogation. We asked the parties to

clarify whether either the complete transcript or the audio tape of the inter-

rogation was part of the record before the state appellate court. The answer

is unclear, although it is undisputed that both were available to the court.

Thus, we consider both to be part of the record in this appeal. Nonetheless,

whether one considers the transcript or the audio tape, the result is the

same.

1384 ANDERSON v. TERHUNE

what Anderson meant is also an unreasonable determination

of the facts. Id. § 2254(d)(2). These errors were not harmless

and, accordingly, we reverse the judgment of the district court

and remand with directions to grant the writ of habeas corpus.

I. BACKGROUND

Anderson and the victim, Robert Clark, were friends. On

the morning of July 9, 1997, a mutual acquaintance, Patricia

Kuykendall, discovered that her car had been stolen. Ander-

son and Kuykendall suspected that Clark was involved and

later that morning confronted him at Kuykendall’s house.

Kuykendall began yelling at Clark, but Anderson remained

calm. When Clark denied that he stole the car, he appeared

edgy and nervous. As Kuykendall left the room to call the

police, Clark left the house. Anderson and Kuykendall’s

roommate, Abe Santos, left ten minutes later, stating they

were going to follow Clark.

Clark’s body was discovered by the side of a road later that

afternoon. He had been shot in the head four times. Investiga-

tors found a methamphetamine pipe lying between Clark’s

arm and body. A cigarette lighter was resting on Clark’s

stomach under his right hand. Pieces of a partially-eaten ham-

burger and a fresh cigarette butt were also near the body, as

well as spent .22 caliber shell casings.

The police asked Anderson to come in for an interview two

days later, July 11. During the interview, Anderson explained

that on the day of the murder he saw Clark at Kuykendall’s

apartment in the morning, but that he and Santos left to buy

some hamburgers, after which they went to Santos’s father’s

house and to a car wash.

The police took Anderson into custody for a parole viola-

tion on July 12. Four officers interviewed Anderson for

approximately three and a half hours. Despite clear and

ANDERSON v. TERHUNE 1385

repeated invocations of his right to remain silent, the officer

continued to question Anderson about the murder:

Officer: You act like you’re cryin’ like a baby, an’

you can’t cry for someone that was a no

good . . . an’ you killed him for a good

reason.

Anderson: No, way! No, way. I — You know what,

I don’t even wanna talk about this no

more. We can talk about it later or what-

ever. I don’t want to talk about this no

more. That’s wrong. That’s wrong.

Officer: Right now, you show your remorse.

Immediately after this exchange, the officer continued to

interrogate Anderson regarding his drug use on the day of the

murder, including whether Anderson had used pipes. This

questioning is significant because the murder victim was

found with a pipe next to him. The entire conversation was

about the murder. In response to this questioning, Anderson

unambiguously indicated that he wanted to end the interroga-

tion by stating that he was “through with this,” wanted to “be

taken into custody” and “I plead the Fifth.” The relevant por-

tion of the transcript is so extraordinary that it bears repeating.

Anderson: I have nothin’ to worry about, nothin’ to

hide. That’s why I show no remorse.

Nothin’ to worry about, nothin’ to hide.

He was my friend, an’ there’s no way I

would do it. No, way I would do it.

Officer: Were you high that day?

Anderson: No, sir. I — probably was later on. Yes.

Officer: Did you have any dope with you that . . .

that day?

1386 ANDERSON v. TERHUNE

Anderson: No, sir.

Officer: No, dope at all? What do you smoke

with?

Anderson: I smoke with my . . . my fingers.

Officer: When you smoke your dope what do you

do with that? How do you smoke that?

Anderson: You smoke it with pipes and stuff like

that.

Officer: Okay. What kind of pipes?

Anderson: Lines.

Officer: What kind of pipes?

Anderson: N’ah . . . I would — I —

Officer: Well, what kind of pipes?

Anderson: Uh! I’m through with this. I’m through.

I wanna be taken into custody, with my

parole . . .

Officer: Well, you already are. I wanna know

what kinda pipes you have?

Anderson: I plead the [F]ifth.

Officer: Plead the [F]ifth. What’s that?

Anderson: No, you guys are wrong. You guys are

wrong. You guys have—I’ve tried to tell

you everything I know. As far as I know,

you guys are lying, uh, making things up,

ANDERSON v. TERHUNE 1387

extenuating and that’s not right. It’s not

right.

Officer: We’re not makin’ anything up.

Anderson: Sir, sure you are.

Officer: What are we makin’ up?

Anderson: You’re tellin’ me that I didn’t have tears

in my eyes.

Officer: Yeah.

Anderson: You’re tellin’ me, okay, that, uh, uh, Abe

said I kilt him. That’s a lie.

The questioning continued until Anderson asked for a law-

yer: “I’d like to have an attorney present.” At that juncture,

an officer turned off the tape recorder and, somewhat suspi-

ciously, following this hiatus, the officers concluded that

Anderson wanted to reinitiate the discussion. The further

questioning, which took place over a three-hour period, led to

a confession by Anderson.

Anderson was convicted of special circumstances murder.

On appeal, as in the trial court, he challenged the admissibility

of his confession, arguing that it was obtained in violation of

Miranda and of his Fifth Amendment right to remain silent.

The California Court of Appeal rejected Anderson’s argu-

ment. The court concluded that Anderson’s invocation of his

right to remain silent was ambiguous and that the officer

asked a legitimate clarifying question when he responded to

Anderson’s statement, “I plead the [F]ifth,” with “Plead the

[F]ifth. What’s that?” The state appellate court reasoned that

Anderson could have been refusing to talk about his drug use,

and did not intend to terminate the interview. The state court

further held that Anderson waived any invocation of the right

1388 ANDERSON v. TERHUNE

to silence or to counsel when he re-initiated the interrogation

after the officers turned off the tape.

II. STANDARD OF REVIEW

Under AEDPA, a writ of habeas corpus may not be granted

unless the state court’s decision (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 proceeding.

28 U.S.C. § 2254(d)(1), (2). Although this standard requires

us to give considerable deference to the state courts, AEDPA

deference is not a rubber stamp. See Miller-El v. Dretke, 545

U.S. 231, 240, 265 (2005) (refusing to accept a state court’s

“dismissive and strained interpretation” of the prisoner’s evi-

dence on habeas review and, noting that “[d]eference does not

by definition preclude relief”). The state court decision here

collides with AEDPA on all grounds. It reflects both an

unreasonable application of Miranda, which is clearly estab-

lished federal law, and an unreasonable determination of the

facts.

III. IN Contravention of MIRANDA, THE STATE COURT

UNREASONABLY CONCLUDED THAT ANDERSON’S

INVOCATION (“I PLEAD THE FIFTH”) WAS AMBIGUOUS

[1] Following the issuance of Miranda in 1966 and the lit-

erally thousands of cases that repeat its rationale, we rarely

have occasion to address a situation in which the defendant

not only uses the facially unambiguous words “I plead the

Fifth,” but surrounds that invocation with a clear desire not to

talk any more. The state court accurately recognized that

under Miranda, “if [an] individual indicates in any manner, at

any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease,” 384 U.S. at 473-

ANDERSON v. TERHUNE 1389

74, but then went on to eviscerate that conclusion by stating

that the comments were “ambiguous in context”:

In the present case, the defendant’s comments were

ambiguous in context because they could have been

interpreted as not wanting officers to pursue the par-

ticulars of his drug use as opposed to not wanting to

continue the questioning at all. By asking defendant

what he meant by pleading the fifth, the officer

asked a legitimate clarifying question.

[2] Using “context” to transform an unambiguous invoca-

tion into open-ended ambiguity defies both common sense

and established Supreme Court law. It is not that context is

unimportant, but it simply cannot be manufactured by strain-

ing to raise a question regarding the intended scope of a

facially unambiguous invocation of the right to silence. As the

Supreme Court has observed, in invoking a constitutional

right, “a suspect need not ‘speak with the discrimination of an

Oxford don.’ ” Davis v. United States, 512 U.S. 452, 459 (1994)3

(quoting id. at 476 (Souter, J., concurring in judgment)).

Anderson would meet even this erudite standard. Miranda

requires only that the suspect “indicate[ ] in any manner . . .

that he wishes to remain silent.” Miranda, 384 U.S. at 473-74.

[3] This is not a case where the officers or the court were

left scratching their heads as to what Anderson meant.4 Noth-

3

We acknowledge that Davis is an invocation of counsel case under

Miranda, not a Fifth Amendment right to silence case. We rely on

Miranda and Mosley, not Davis, as “clearly established” law. See Evans

v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996) (declining to address

whether Davis applies to right to silence cases). Nonetheless, the general

principles from cases involving the clarity of invocation of rights during

custodial interrogation are instructive as to common sense interpretation

of language.

4

The trial court stated, “while the defendant articulated words that

could, in the isolation [sic], be viewed as an invocation of his right to

remain silent, the defendant did not intend to terminate the interview.”

1390 ANDERSON v. TERHUNE

ing was ambiguous about the statement “I plead the Fifth.”

Ambiguity means “admitting more than one interpretation or

reference” or “having a double meaning or reference.” The

New Shorter Oxford English Dictionary (1993). Even if the

preliminary statements “I don’t even wanna talk about this no

more” and “I’m through with this. I’m through. I wanna be

taken in custody,” were viewed as somewhat equivocal—a

dubious conclusion at best—“I plead the Fifth” left no room

for doubt.

As we recently observed, “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.’ ” Arnold v.

Runnels, 421 F.3d 859, 865 (9th Cir. 2005). We went on to

underscore that Arnold’s statement easily met the Fifth

Amendment standard: “Indeed, it is difficult to imagine how

much more clearly a layperson like Arnold could have

expressed his desire to remain silent.” Id. at 866.

[4] Anderson did not equivocate in his invocation by using

words such as “maybe” or “might” or “I think.” See id. at

865-66 (distinguishing cases in which the court concluded

that a qualified invocation was ambiguous from cases in

which the invocation of the right to silence was specific and

unambiguous). Nor was there anything ambiguous in Ander-

son declaring, “I plead the Fifth.” Anderson had already twice

attempted to stop the police questioning using crystal-clear

language: “I don’t want to talk about this no more” and “Uh!

I’m through with this. I’m through. I wanna be taken into cus-

(emphasis added). Similarly, the state court of appeal stated, “In the pres-

ent case, the defendant’s comments were ambiguous in context because

they could have been interpreted as not wanting officers to pursue the par-

ticulars of his drug use as opposed to not wanting to continue the ques-

tioning at all.” (emphasis added). Obviously, the court recognized that “I

plead the Fifth” was an invocation of the right to silence; it detected

ambiguity only as to the scope of the invocation.

ANDERSON v. TERHUNE 1391

tody . . . .” Saying that he wanted to be taken into custody was

an indication that Anderson did not want to talk about the

murder, his drug use, or anything else. Thus, the state court

was unreasonable in concluding that the invocation was

ambiguous in context because the context, in fact, makes it

clear that Anderson wanted to end the interrogation in all

respects. Anderson had the right to end the interrogation at

any point and the fact that Anderson had answered the offi-

cers’ questions for over two hours does not somehow under-

mine or cast doubt on an unambiguous invocation. Whether

these were “statements of frustration,” as the government pos-

ited at oral argument, misses the point. A suspect can both be

frustrated with an interrogation and seek to terminate it. “Tak-

ing the Fifth” is as unequivocal as one can get in invoking the

right to remain silent.

IV. THE STATE COURT’S CONCLUSION THAT THE OFFICER

ASKED A LEGITIMATE CLARIFYING QUESTION WAS AN

UNREASONABLE DETERMINATION OF THE FACTS

[5] Anderson’s unambiguous, unequivocal invocation

should have brought an immediate end to questioning. Nota-

bly, the Supreme Court’s commitment to Miranda’s funda-

mental tenet—that police must “scrupulously honor[ ]” a

suspect’s right to remain silent by immediately ceasing ques-

tioning when the suspect invokes this right, 384 U.S. at 479

(emphasis added)—has never wavered. See Mosley, 423 U.S.

at 103 (Miranda’s “critical safeguard” is “a person’s ‘right to

cut off questioning’ ”); see also Arizona v. Roberson, 486

U.S. 675, 683 (1988); Kolender v. Lawson, 461 U.S. 352, 368

n.6 (1983) (Brennan, J., concurring); cf. Dickerson, 530 U.S.

at 440 (reaffirming constitutional requirement that “the exer-

cise of [Miranda] rights must be fully honored”).

[6] Instead of scrupulously honoring the request, the inter-

rogating officer decided to “play dumb,” hoping to keep

Anderson talking by inquiring, “Plead the Fifth. What’s that?”

This effort to keep the conversation going was almost comi-

1392 ANDERSON v. TERHUNE

cal. At best, the officer was mocking and provoking Ander-

son. The officer knew what “I plead the Fifth” meant. It is

thus baffling that the state court determined that “[b]y asking

defendant what he meant by pleading the Fifth, the officers

asked a legitimate clarifying question.” The need for clarifica-

tion presumes some ambiguity or uncertainty. Nothing needed

clarification.

This situation brings to mind the phrase attributed to a

Canadian judge— “won’t take no for an answer”—and later

popularized in country music as “What part of ‘no’ don’t you

understand?”5 What about the words “I plead the Fifth” is

unclear, ambiguous, or confusing to a reasonable officer?

Nothing. See Connecticut v. Barrett, 479 U.S. 523, 529

(1987) (holding in the context of the invocation of the right

to counsel that “[i]nterpretation is only required where the

defendant’s words, understood as ordinary people would

understand them, are ambiguous”). Rather, the officer hoped

Anderson would explain more about the murder, the exact

topic Anderson did not want to talk about. The officer thought

that continuing the interrogation was “reasonably likely to

elicit an incriminating response” from Anderson. Rhode

Island v. Innis, 446 U.S. 291, 303 (1980). And he was right.

In the right-to-counsel context, the Supreme Court has

countenanced clarifying questions only to ascertain whether a

suspect’s ambiguous or equivocal statement is actually an

invocation of his Fifth Amendment right. See Davis, 512 U.S.

at 461; Miranda, 384 U.S. at 445 (focusing only on the

threshold question of whether the accused “indicate[d] in any

manner that he d[id] not wish to be interrogated” when decid-

ing whether police had honored the accused’s Fifth Amend-

ment rights); cf. Smith v. Illinois, 469 U.S. 91, 95 (1984)

5

See The Phrase Finder, What part of no don’t you understand?, http://

www.phrases.org.uk/meanings/what-part-of-no.html (last visited Nov. 30,

2007); LORRIE MORGAN, What Part of No (words and music by Wayne

Perry and Gerald Smith), on WATCH ME (BNA Records 1992).

ANDERSON v. TERHUNE 1393

(holding that “[t]his case concerns the threshold inquiry:

whether Smith invoked his right to counsel in the first

instance”). Ignoring this principle, the state court found that

the comments were ambiguous “because they could have been

interpreted as not wanting officers to pursue the particulars of

his drug use as opposed to not wanting to continue the ques-

tioning at all.”

[7] The state court’s rationale collapses beneath its own

weight, because the officer’s comment showed that the inter-

rogating officers did not believe that Anderson’s statement

was ambiguous. The officer did not ask Anderson what sub-

ject he did not want to discuss; nor did any of his follow-up

questioning address this topic. Similarly, the officer did not

ask him if he wished to remain silent or whether he simply did

not want to talk about the drug issue. The officer did not even

ask Anderson what he meant. No reasonable officer could

legitimately be in doubt about the meaning of “I plead the

Fifth.” The state court’s characterization is a fanciful re-

imagining of the colloquy between Anderson and the officer,

and under AEDPA, an unreasonable determination of the

facts.

The state court’s conclusion that “[i]t was the defendant,

not the interrogators, who continued the discussion,” ignores

the bedrock principle that the interrogators should have

stopped all questioning.6 A statement taken after the suspect

invoked his right to remain silent “cannot be other than the

product of compulsion, subtle or otherwise.” Miranda, 384

U.S. at 474.

Finally, it makes no sense to split hairs and say that maybe,

6

As the Third Circuit aptly stated, “[u]nder Miranda, the onus was not

on [the suspect] to be persistent in her demand to remain silent. Rather,

the responsibility fell to the law enforcement officers to scrupulously

respect her demand.” United States v. Lafferty, 503 F.3d 293, 304 (3d Cir.

2007).

1394 ANDERSON v. TERHUNE

just maybe, Anderson wanted to talk about the murder and not

about his drug use because, in fact, the drug use was inextri-

cably intertwined with the murder. The victim’s body was

found next to a methamphetamine pipe. Anderson’s drug use

that day could well tie him to the murder. He was taken in for

questioning about the murder, not on a potential drug charge.

It is precisely this kind of conjecture and hair-splitting that

the Supreme Court wanted to avoid when it fashioned the

bright-line rule in Miranda. Cf. Davis, 512 U.S. at 461 (noting

that, where the suspect asks for counsel, the benefit of the

bright-line rule is the “clarity and ease of application” that

“can be applied by officers in the real world without unduly

hampering the gathering of information” by forcing them “to

make difficult judgment calls” with a “threat of suppression

if they guess wrong”). No guess work was required here.

Under the state court’s application of Miranda and its prog-

eny, every time a suspect unequivocally invokes the right to

remain silent, the police can ask follow-up questions to clarify

whether he really, really wants to invoke the right and to

parse the subject matter—“what specifically do you not want

to talk about?” Such a practice is tantamount to endless re-

interrogation.

The Sixth Circuit’s decision in McGraw v. Holland, 257

F.3d 513 (6th Cir. 2001), where the defendant stated “I don’t

want to talk about it,” illustrates the error of the state court’s

approach:

In the criminal proceeding against Tina McGraw, the

state trial court declined to hold the confession inad-

missible under Miranda since Tina ‘never demanded

or requested to terminate the interview.’ Although

Tina said that she did not want to talk about the rape

itself, in other words, her confession that she assisted

in the rape was held to be admissible under Miranda

because she never said that she did not want to talk

ANDERSON v. TERHUNE 1395

about subjects other than the rape. This, in our view,

was an unreasonable application of Miranda and its

progeny.

Id. at 518.

Here, the state court’s loose paraphrasing of the officer’s

question—“Plead the [F]ifth. What’s that?”—as “asking

defendant what he meant by pleading the Fifth” is unconvinc-

ing and an unreasonable determination of the facts. As the

transcript reveals, the officer did not even pretend not to

understand what Anderson meant. Instead, incredibly, he

feigned ignorance of the Fifth Amendment.

[8] Where the initial request to stop the questioning is clear,

“the police may not create ambiguity in a defendant’s desire

by continuing to question him or her about it.” Barrett, 479

U.S. at 535 n.5 (Brennan, J., concurring). By parsing Ander-

son’s invocation into specific subjects, “the police failed to

honor a decision of a person in custody to cut off questioning,

either by refusing to discontinue the interrogation upon

request or by persisting in repeated efforts to wear down his

resistance and make him change his mind.” Mosley, 423 U.S.

at 105-06. The net result is that such follow-up questions

allowed the officer to avoid honoring the Fifth Amendment

and, as in a right to counsel situation, enabled “the authorities

through ‘badger[ing]’ or ‘overreaching’—explicit or subtle,

deliberate or unintentional—[to] wear down the accused and

persuade him to incriminate himself.” Smith, 469 U.S. at 98.

[9] Looking at this case through the AEDPA lens of defer-

ence, as we must, does nothing to change these conclusions.

The state court’s decision to ignore an unambiguous declara-

tion of the right to remain silent is an unreasonable applica-

tion of Miranda, as was the decision to allow continued

questioning. See Runnels, 421 F.3d at 867. Finally, the state

court’s labeling of Anderson’s statements as ambiguous and

1396 ANDERSON v. TERHUNE

characterizing the officer’s response as a legitimate clarifying

inquiry were unreasonable determinations of fact.

V. THE STATE COURT’S DECISION WAS CONTRARY TO

SUPREME COURT PRECEDENT BY FINDING A WAIVER BASED

ON ANDERSON’S RESPONSES TO RE-INTERROGATION

[10] The state appellate court attempted to bolster its con-

clusion about Anderson’s statements by claiming that he

waived his right to remain silent in continuing to answer

police questions after he stated, “I plead the Fifth”:

[W]hile words of invocation were spoken by the

defendant, the court concludes that, in any case, he

effectively waived the right to remain silent by what

followed. . . . By continuing to talk to the police offi-

cers, defendant demonstrated a willingness to con-

tinue to discuss the case

Put another way, the state court endorses the principle that

once the officers ignored Anderson’s unequivocal invocation

of the Fifth Amendment, their questioning kept him talking

and resulted in a waiver of his right to remain silent. This

analysis directly contravenes Supreme Court precedent:

“[U]nder the clear logical force of settled precedent, an

accused’s postrequest responses to further interrogation may

not be used to cast retrospective doubt on the clarity of the

initial request itself.” Smith, 469 U.S. at 100 (emphasis in

original).

[11] Smith mandates that all questioning must immediately

cease once the right to remain silent is invoked, and that any

subsequent statements by the defendant in response to contin-

ued interrogation cannot be used to find a waiver or cast

ambiguity on the earlier invocation. The Supreme Court’s

somewhat lengthy recitation of this principle is particularly

instructive in this case:

ANDERSON v. TERHUNE 1397

Where nothing about the request for counsel or the

circumstances leading up to the request would render

it ambiguous, all questioning must cease. In these

circumstances, an accused’s subsequent statements

are relevant only to the question whether the accused

waived the right he had invoked. Invocation and

waiver are entirely distinct inquiries, and the two

must not be blurred by merging them together. . . .

With respect to the waiver inquiry, we accordingly

have emphasized that a valid waiver “cannot be

established by showing only that [the accused]

responded to further police-initiated custodial inter-

rogation.” Using an accused’s subsequent responses

to cast doubt on the adequacy of the initial request

itself is even more intolerable. “No authority, and no

logic, permits the interrogator to proceed . . . on his

own terms and as if the defendant had requested

nothing, in the hope that the defendant might be

induced to say something casting retrospective doubt

on his initial statement that he wished to speak

through an attorney or not at all.”

Id. at 98-99 (internal citations omitted) (emphasis, alteration

and second ellipsis in original).

We are not faced with a situation where there was a break

in questioning after the Miranda invocation. Instead, police

simply continued the conversation up to the point that Ander-

son said, “I’d like to have an attorney present.” Only at that

point did they stop the interrogation and turn off the recorder.

But it was too late.

[12] We cannot simply suppress the portion of the interro-

gation that occurred after the invocation of the right to silence

and before Anderson’s purported re-initiation of the interroga-

tion. Doing so would eviscerate the mandate to “scrupulously

honor[ ]” the invocation of Miranda rights. We understand the

1398 ANDERSON v. TERHUNE

phrase “scrupulously honor” to have practical meaning. For

the “right to remain silent” to have currency, there must be

some silence. The interrogation must stop for some period of

time. See Miranda, 384 U.S. at 473-74; Mosley, 423 U.S. at

103-04. Although the Supreme Court has yet to tell us how

long the break in questioning must last, in this case there was

no cessation at all. Because the interrogation was continuous

to that point, we need not determine whether Anderson

waived his right to counsel after viewing a videotape of his

alleged accomplice nor do we need to address his coercion

claim.

[13] The prejudice from Anderson’s confession cannot be

soft pedaled, and the error was not harmless. Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993). The confession was

central to the conviction. See Arizona v. Fulminante, 499 U.S.

279, 296 (1991) (“A confession is like no other evidence.

Indeed, the defendant’s own confession is probably the most

. . . damaging evidence that can be admitted against him.”

(internal quotation marks omitted)). Although deference must

be given to state court determinations under AEDPA, we

would be abdicating our responsibility to abide by Supreme

Court precedent and to police the Constitution’s boundaries

were we to permit such an egregious violation of Miranda to

go unchecked.

[14] The judgment of the district court is reversed and the

case is remanded with instructions to grant the writ.

REVERSED AND REMANDED.

SILVERMAN, Circuit Judge, with whom RAWLINSON,

Circuit Judge, joins, concurring in the judgment:

The Supreme Court has taken pains to remind us that “[a]n

unreasonable application of federal law is different from an

ANDERSON v. TERHUNE 1399

incorrect application of federal law.” Woodford v. Visciotti,

537 U.S. 19, 25 (2002) (emphasis in original; quotation omit-

ted). I write separately because I believe the majority opinion

fails to “observe this distinction,” id., in its treatment of the

California Court of Appeal’s ruling that Anderson’s state-

ments were “ambiguous in context.” I concur in the result

because the California Court of Appeal rendered an unreason-

able determination of the facts when it ruled that the officer’s

feigned ignorance of the Fifth Amendment was a “legitimate

clarifying question.”

The first question we face is whether the state court acted

contrary to or unreasonably applied Supreme Court law in

holding that the police were entitled to clarify the statements

Anderson made two hours into the interview. See 28 U.S.C.

§ 2254 (d)(1). If Anderson had said, “I plead the Fifth” imme-

diately after having been read his rights, there would be no

room for debate. The right to remain silent clearly would have

been invoked. Here, however, after having been read his

rights, Anderson answered questions for some two hours

before making the statements now in issue. He indicated that

he “don’t even wanna talk about this no more,” and in the

next breath said, “We can talk about it later or whatever.”

(Anderson says he does not argue that these statements were

an unequivocal invocation of the right to remain silent.) He

then proceeded to answer more questions. The conversation

eventually turned to Anderson’s drug use. At that point, he

said he was “through with this” and wanted to be “taken in

custody,” even though he was already in custody. Then, when

asked about his dope pipes, he said, “I plead the [F]ifth.”

What did Anderson mean by asking to be “taken in custo-

dy,” in light of the fact that he was already in custody? What

did he mean when he said he would “talk about it later or

whatever?” Did Anderson’s “pleading the Fifth,” coming as

it did after two hours of talking, mean that he wanted to termi-

nate the interview in its entirety, or was he referring to the

immediate question?

1400 ANDERSON v. TERHUNE

The California Court of Appeal ruled that Anderson’s state-

ments “were ambiguous in context” and that the officers thus

were justified in seeking clarification. This conclusion was

not “contrary to” Supreme Court law, because the Supreme

Court has held that officers have no obligation to stop ques-

tioning a suspect who has made an ambiguous or equivocal

invocation of Miranda rights. Davis v. United States, 512 U.S.

452, 461- 62 (1994). Indeed, the Supreme Court has specifi-

cally stated that when a suspect makes an ambiguous state-

ment “it will often be good police practice” for interviewing

officers to ask “clarifying questions” about the suspect’s

meaning. Id. at 461.

Nor did the state court make an “unreasonable application”

of this precedent in concluding that the officers were entitled

to seek clarification from Anderson. The question before us

is not whether we agree with the state court’s assessment of

the ambiguity of Anderson’s statements, or even whether it is

right or wrong, but only whether that court’s decision on that

point was unreasonable. In my view, it was not unreasonable.

It’s a different story when it comes to assessing the legiti-

macy of the “clarifying question” that the officer asked.

Instead of asking Anderson what he intended to convey, the

officer responded to Anderson’s “pleading the Fifth” by say-

ing, “Plead the fifth. What’s that?” As to this, the California

Court of Appeal ruled as follows: “By asking defendant what

he meant by pleading the fifth, the officer asked a legitimate

clarifying question.” By any measure, this is an unreasonable

determination of the facts. The problem with the California

Court of Appeal’s ruling is that, in point of fact, the officer

did not ask Anderson “what he meant.” Rather, he feigned

ignorance of what the Fifth Amendment is. One of the stated

reasons for Miranda’s requirement that officers inform sus-

pects of their rights is to “show the individual that his interro-

gators are prepared to recognize his privilege should he

choose to exercise it.” Miranda v. Arizona, 384 U.S. 436, 468

(1966). Instead of asking a question aimed at clarifying

ANDERSON v. TERHUNE 1401

Anderson’s meanings, the officer pretended not to know

about the very rights he informed Anderson of at the outset.

The California Court of Appeal’s ruling that the officer

asked a legitimate clarifying question is an unreasonable

determination of the facts, and resulted in a decision that is

contrary to Miranda. Having failed to clarify whether Ander-

son was exercising his right to terminate questioning, the offi-

cers could not lawfully continue the interview. Under

Miranda, anything Anderson said after that point should have

been suppressed. 384 U.S. at 479. It is for this reason that I

would reverse the district court’s denial of the writ.

BEA, Circuit Judge, concurring in part, dissenting in part:

I concur in the majority’s holding that Anderson unambigu-

ously invoked his privilege against self-incrimination under

the Fifth Amendment to the United States Constitution.

Anderson repeatedly invoked his right to remain silent—“I

don’t even want to talk about this no more”; “I’m through

with this” and “I plead the fifth”—yet the police did not honor

Anderson’s right to remain silent until he finally requested an

attorney. Only at that point did the police do what they should

have done in the first place—cease the interrogation.1 Given

1

Specifically, the conversation went as follows:

Defendant Jerome Anderson: I’d like to have an attorney present.

Lt. Harry Bishop: Okey [sic]

Detective Ron Clemens: OK fine.

Anderson: Sorry, man.

Bishop: No, don’t apologize.

Detective Tom O’Connor: okay, 7-12-97, about 22:45, ten forty-

five, uh, p.m. on Saturday. This is it.

The police then turned the tape recorder off and stopped the interroga-

tion.

1402 ANDERSON v. TERHUNE

that Anderson requested that the interrogation cease three

times in rapid succession, no reasonable officer could have

understood anything other than that Anderson wanted the

interrogation to stop. Further, I agree with Judge Silverman

that Officer O’Connor’s response, “Plead the Fifth, what’s

that?” was not a genuine attempt to clarify whether Anderson

wanted to invoke his right to remain silent.

Where I part company with the majority’s analysis is sec-

tion V, where the majority concludes:

We cannot simply suppress the portion of the inter-

rogation that occurred after the invocation of the

right to silence and before Anderson’s purported re-

initiation of the interrogation. Doing so would evis-

cerate the mandate to “scrupulously honor[ ]” the

invocation of Miranda rights. We understand the

phrase “scrupulously honor” to have practical mean-

ing. For the “right to remain silent” to have currency,

there must be some silence. The interrogation must

stop for some period of time. See Miranda, 384 U.S.

at 473-74; Mosley, 423 U.S. at 103-04. Although the

Supreme Court has yet to tell us how long the break

in questioning must last, in this case there was no

cessation at all. Because the interrogation was con-

tinuous to that point, we need not determine whether

Anderson waived his right to counsel after viewing

a videotape of his alleged accomplice nor do we

need to address his coercion claim.

Majority Op. at 1397-98.

The reason I disagree is that the record shows the police did

stop the interrogation after Anderson requested an attorney,

and before Anderson himself re-initiated the conversation, as

explained below. All this occurred before Anderson confessed

to the murder. Thus, I conclude it was not error at all to admit

his confession at trial, and the California Court of Appeal’s

ANDERSON v. TERHUNE 1403

denial of his petition for writ of habeas corpus was not con-

trary to, nor an unreasonable application of, clearly estab-

lished federal law. 28 U.S.C. § 2254(d)(1).

Approximately two hours and fifteen minutes into the inter-

view, after Anderson was shown the videotape of his co-

defendant Abe Santos saying Anderson was the one who shot

Robert Clark, Anderson said, “I’d like to have an attorney

present.” The interrogating officers then did what they should

have done back when Anderson first said, “I don’t even

wanna talk about this no more”: they stopped the interroga-

tion and turned the tape recorder off. Anderson had not con-

fessed to the murder of Clark at this point.

But then Anderson changed his mind and re-initiated the

conversation himself. The police advised Anderson four sepa-

rate times that they could not speak with him because he had

invoked his right to counsel, and five separate times Anderson

insisted he wanted to talk to Lt. Harry Bishop saying, in rele-

vant part:

Anderson: Oh, man, I want to talk to you. I need, I

need to talk to you Harry. . . . Okay, I—I was just

jokin’. I don’t wanna talk—Or I want to talk to

Harry, the bishop. You know the thing about the

attorney, is . . . is wrong or whatever, I don’t need

an attorney. Is that fair to say so [you] guys don’t get

busted outta your jobs? . . . I don’t want an attorney,

I’ve changed my mind.

The officers were careful to ask clarifying questions to dis-

cern whether Anderson was making a knowing, intelligent

and voluntary waiver of his rights to counsel and to remain

silent:

Officer Brad McDonald: Okay. Has anybody in this

room promised you any-

thing?

1404 ANDERSON v. TERHUNE

Anderson: No, sir.

McDonald: Has anybody in this room threatened

you for anything at all?

Anderson: No, sir.

McDonald: Do you feel intimidated by anybody in

this room?

Anderson: No, sir.

McDonald: Do you feel that—Has anybody in this

room, told you that if you didn’t talk

with us, or you did talk to us, that

somethin’ good was gonna happen?

Anderson: No, sir.

McDonald: Okay, so you’ve made the decision,

that you want to talk to us and you do

not want an attorney, is that correct?

Anderson: [Pause] Yes, sir.

McDonald: That’s absolutely correct, now you

kinda hesitated a little bit . . .

Anderson: Well . . .

McDonald: You don’t want an attorney . . .

Anderson: Yes, sir.

McDonald: . . . right here in this room . . .

Anderson: Yes, sir.

ANDERSON v. TERHUNE 1405

McDonald: . . . right now, is that correct?

Anderson: Yes, sir.

McDonald: Okay. An’ my name is Brad McDon-

ald, an’ these guys have probably told

ya’ I’m the boss, right?

Anderson: Uh, no, sir, it’s not.

McDonald: Okay, but I am.

Anderson: Okay.

McDonald: Okay. Then I think we’re okay, I think

he’s unlawyered [sic]. Now what do

you want to talk to Harry about?

Anderson: About . . . I guess the murder of Rob-

bie Clark.

Anderson then eventually confessed to fatally shooting

Robbie Clark.

This was a clear waiver of both Anderson’s right to coun-

sel, and his right to remain silent. Two cases are instructive.

In Edwards v. Arizona, 451 U.S. 477, 481-84 (1981),

Edwards was convicted of robbery, burglary, and first-degree

murder after his confession was entered into evidence. After

being read his Miranda rights, Edwards stated, “I want an

attorney before making a deal.” At that point, all questioning

ceased. Id. at 479.

The next day, two different detectives came to question

Edwards in jail. When he was told they were there, Edwards

told the jail guard, “he did not want to talk to anyone.” Id. The

guard told Edwards he was obligated to talk to the detectives.

Id. The detectives then advised Edwards of his Miranda rights

1406 ANDERSON v. TERHUNE

again, and he agreed to talk to them, but said he did not want

the discussion taped. Edwards then implicated himself in the

crime after being confronted with the statement of a co-

defendant who had implicated him. Id.

The Arizona Supreme Court affirmed his conviction and

held Edwards had invoked both his right to remain silent and

his right to counsel, but had waived both rights when he vol-

untarily gave his statement to the detectives after they

informed him again of his Miranda rights. Id. at 480.

The Supreme Court reversed and held the use of Edwards’s

confession violated his Fifth Amendment rights as construed

in Miranda. The Court held that when an accused requests an

attorney, he may not be questioned unless an attorney has

been made available or “the accused himself initiates further

communication, exchanges, or conversation with the police.”

Id. at 485. Any waiver after an invocation of the right to

remain silent or the right to an attorney must not only be vol-

untary, but must also “constitute a knowing and intelligent

relinquishment or abandonment of a known right or privi-

lege.” Id. at 482. Although the police appeared the day after

Edwards had requested an attorney, the time elapsed between

interrogations was not a factor the Court considered in deter-

mining the admissibility of his confession. The crucial factors

were whether the second interrogation was initiated by

Edwards (it was not); and, whether such initiation was volun-

tary (it was not, because the jail guard told Edwards he was

required to speak to the police).

On the other hand, the later case of Oregon v. Bradshaw,

462 U.S. 1039, 1045-46 (1983), clarifies how an accused who

has invoked his right to counsel can initiate a discussion and

validly waive his rights to counsel and to remain silent. Dur-

ing the investigation of the death of a person whose body had

been found in Bradshaw’s wrecked pickup truck, Bradshaw

was questioned at the police station. Bradshaw was advised of

his Miranda rights. He was arrested for furnishing liquor to

ANDERSON v. TERHUNE 1407

the victim, a minor, and again advised of his Miranda rights.

Id. at 1041-42. Bradshaw denied he was driving the truck and

asked for an attorney. Id.

Later that same day, while being transported in custody

from the police station to a jail, Bradshaw asked a police offi-

cer, “Well, what is going to happen to me now?” Id. at 1042.

The officer answered that Bradshaw did not have to talk to

him and Bradshaw said he understood. They then discussed

where Bradshaw was being taken and the offense with which

he would be charged. The officer suggested that Bradshaw

take a polygraph examination, which he did, after another

reading of his Miranda rights. Id.

When the polygraph examiner told Bradshaw he did not

believe Bradshaw was telling the truth, Bradshaw recanted his

earlier story and admitted that he had been driving the truck

in question and that he had consumed a considerable amount

of alcohol and passed out at the wheel of the truck before it

left the highway. Id. Bradshaw was charged with first-degree

manslaughter, driving while under the influence of intoxi-

cants, and driving while his license was revoked. His motion

to suppress his statement was denied, and he was found guilty

after a bench trial. Id.

The Oregon Court of Appeals reversed, holding the inquiry

Bradshaw made of the police officer while being transferred

to jail did not “initiate” a conversation with the officer and

therefore the statements growing out of this conversation

should have been excluded from evidence under Edwards v.

Arizona. Id. at 1042-43. The Oregon Supreme Court denied

review, without writing an opinion on the merits.

On direct appeal, the Supreme Court reversed, holding that

by asking “Well, what is going to happen to me now?”, Brad-

shaw “initiated” a further conversation. Id. at 1045. His state-

ment evinced a willingness and a desire for a generalized

discussion about the investigation. Id.

1408 ANDERSON v. TERHUNE

Because there was no violation of the Edwards initiation

rule, the next inquiry was whether, in light of the totality of

the circumstances, Bradshaw made a knowing and intelligent

waiver of his right to have counsel present. The trial court,

based on its first-hand observation of the witnesses, found a

waiver and the Supreme Court found no reason to dispute that

finding. Id. at 1045-47.

Here, Anderson himself initiated the conversation when,

after being told by the police that they could no longer talk to

him, he said, “Oh, man, I want to talk to you. I need, I need

to talk to you Harry [Lt. Bishop].” Anderson also made a

knowing and intelligent waiver of his right to have counsel

present when he said, “I don’t want an attorney; I’ve changed

my mind” and he wanted to talk to the police officers “about

the murder of Robbie Clark.”

It is unclear how long the interrogation was stopped after

Anderson requested an attorney, and before Anderson asked

to speak with Lt. Bishop. The record implies it did not appear

to be a long period of time. Although the Supreme Court has

held the interrogation must stop for some period of time

before a suspect can waive a properly invoked Miranda right,

that amount of time has never been specified. In Bradshaw,

we know the time was not long because when he re-initiated

the conversation with the officer, Bradshaw was being trans-

ported from the police station to the jail shortly after he had

requested an attorney. 462 U.S. at 1042. Even though not

much time had elapsed since Bradshaw had requested an

attorney, the Court had no problem finding Bradshaw was the

one who re-initiated the conversation. There is no clearly

established federal law mandating a particular amount of time

the break in the interrogation must last. We have recently

been reminded that where there is no such clearly established

federal law, as determined by the Supreme Court of the

United States, we are not allowed to invent such law. See

Carey v. Musladin, 127 S. Ct. 649, 653 (2006) Hence, the rel-

ANDERSON v. TERHUNE 1409

evant fact here is that Anderson re-initiated the conversation,

not the duration of the break in the conversation.

Given that Anderson validly waived his right to counsel

and his right to remain silent before he confessed, the admis-

sion of his confession was not error, and the California Court

of Appeal’s denial of his petition for writ of habeas corpus

was not contrary to, nor an unreasonable application of,

clearly established federal law. 28 U.S.C. § 2254(d)(1). For

this reason, I respectfully dissent.

TALLMAN, Circuit Judge, with whom CALLAHAN, Circuit

Judge, joins, dissenting:

Lewis Carroll was right: “When I use a word . . . it means

just what I choose it to mean, neither more nor less.” Lewis

Carroll, Alice’s Adventures in Wonderland 163 (Donald J.

Gray ed., W.W. Norton 1973) (1871). My colleagues in the

majority fixate on the words “plead the Fifth” lifted in isola-

tion from a portion of the transcribed interview without giving

the required level of deference to the trial court’s findings of

fact after an evidentiary hearing, which included the entire

tape recording and the testimony of the interrogators. No one

disputes that Jerome Alvin Anderson, a known felon on

parole, admitted to killing his acquaintance and friend, Robert

Clark: Anderson admitted, “I shot [Clark].” Nor does anyone

dispute that Anderson answered questions for nearly two and

one-half hours before making the statement, “I plead the

Fifth.”

The California courts examined Anderson’s statement in

the full context of his confession. Following an evidentiary

hearing, the Shasta County Superior Court Judge made a fac-

tual finding that “while the defendant articulated words that

could, in the isolation, be viewed as an invocation of his right

to remain silent, the defendant did not intend to terminate the

1410 ANDERSON v. TERHUNE

interview.” (Emphasis added). In affirming the trial court’s

decision to deny Anderson’s motion to suppress his later con-

fession because it was knowing and voluntary, the California

Court of Appeal neither unreasonably applied clearly estab-

lished Supreme Court precedent, nor made an unreasonable

determination of facts. The state courts’ conclusion that

Anderson’s comments were ambiguous in context was not an

unreasonable application of clearly established Supreme

Court precedent. Nor was their conclusion that the detective’s

follow-up question, “Plead the Fifth. What’s that?,” was a

permissible clarification question an unreasonable determina-

tion of fact. I respectfully dissent.

I

We may grant habeas relief only if the California Court of

Appeal acted contrary to or unreasonably applied clearly

established Supreme Court precedent, or made an unreason-

able determination of facts. See 28 U.S.C. § 2254(d); Lockyer

v. Andrade, 538 U.S. 63, 70-73 (2003). “[C]learly established

Federal law under § 2254(d)(1) [(the Antiterrorism and Effec-

tive Death Penalty Act of 1996 (‘AEDPA’))] is the governing

legal principle or principles set forth by the Supreme Court at

the time the state court render[ed] its decision.” Lockyer, 538

U.S. at 71-72 (internal quotation marks omitted). The Court

has stated that a “state court decision is contrary to . . . clearly

established [Supreme Court] precedent if the state court

applies a rule that contradicts the governing law set forth in

[Supreme Court] cases or if the state court confronts a set of

facts that are materially indistinguishable from a decision of

[the] Court and nevertheless arrives at a result different from

[its] precedent.” Id. at 73 (internal quotation marks omitted).

There is an open question in Supreme Court jurisprudence

on issues involving the invocation of a suspect’s Fifth

Amendment right to remain silent. Clearly established

Supreme Court precedent in the arena of the right to remain

silent is Miranda v. Arizona, 384 U.S. 436 (1966), and Michi-

ANDERSON v. TERHUNE 1411

gan v. Mosley, 423 U.S. 96, 101 (1975). In Miranda, the

Supreme Court held that “[i]f [an] individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.” 384

U.S. at 473-74. Once a defendant has invoked his right to

remain silent, that right must be “scrupulously honored.”

Mosley, 423 U.S. at 103-04. While the Supreme Court has

addressed the substance of the right to remain silent in

Miranda and Mosley, at no time has the Court addressed how

that right is to be invoked.

In comparison, under clearly established Supreme Court

precedent, a suspect’s statements to invoke his Fifth Amend-

ment right to counsel under Miranda must be clear and

unequivocal. See Davis v. Alaska, 512 U.S. 452, 459 (1994).

The determination of whether the suspect clearly invoked his

right to counsel requires an objective inquiry. Id. at 458-59.

The suspect must, “at a minimum, [give] some statement that

can reasonably be construed to be an expression of a desire

for the assistance of an attorney.” Id. at 459 (internal quota-

tion marks omitted). A statement is ambiguous when a “rea-

sonable officer in light of the circumstances would have

understood only that the suspect might be invoking the right

to counsel.” Id. (first emphasis added).

The United States Supreme Court has never declared its

right to counsel principles applicable to invoking the right to

silence, and under AEDPA that precedent was not “clearly

established” when the California Court of Appeal rendered its

decision. See Bui v. Dipaolo, 170 F.3d 232, 239 (1st Cir.

1999) (recognizing that Davis was concerned only with the

right to counsel, and not the right to remain silent). Indeed, in

prior cases, we have declined to determine whether the rule

in Davis when invoking the right to counsel applied with

equal force to the right to remain silent. See Arnold v. Run-

nels, 421 F.3d 859, 866 n.8 (9th Cir. 2005); United States v.

Soliz, 129 F.3d 499, 504 n.3 (1997), overruled on other

grounds by United States v. Johnson, 256 F.3d 895 (9th Cir.

1412 ANDERSON v. TERHUNE

2001) (en banc) (per curiam); Evans v. Demosthenes, 98 F.3d

1174, 1176 (9th Cir. 1996). Other circuits have made that

leap. See, e.g., Arnold, 421 F.3d at 870 & n.1 (Callahan, J.,

dissenting) (collecting cases).

In circumstances where there is no “clear-cut Supreme

Court rule that certain magic words automatically bring all

questioning to a halt—regardless of the circumstances sur-

rounding the interrogation,” Anderson v. Terhune, 467 F.3d

1208, 1213 (9th Cir. 2006), reh’g en banc granted, 486 F.3d

1155 (2007), we simply cannot say that the California Court

of Appeal unreasonably applied clearly established Supreme

Court precedent. See Carey v. Musladin, 127 S. Ct. 649, 654

(2006) (concluding that the state court’s determination was

not an unreasonable application of Supreme Court precedent

because there was no Supreme Court precedent addressing

that area of law). Invoking the lyrics of a popular Country-

Western song in lieu of Supreme Court authority is not good

enough under AEDPA.

Nor can we grant habeas relief because, when lacking

clearly established Supreme Court precedent, the California

Court of Appeal looked to Supreme Court law in another con-

text for guidance. In holding that Anderson’s statement was

ambiguous, and that the detective’s follow-up question could

reasonably be interpreted as a “legitimate clarifying ques-

tion,” the California Court of Appeal applied the Supreme

Court’s precedent in Davis. It looked at the totality of the cir-

cumstances to determine that a reasonable officer could have

understood only that Anderson may have intended to invoke

his Fifth Amendment right to remain silent. See Davis, 512

U.S. at 459. Given the lack of a holding from the Supreme

Court addressing invocation of the Fifth Amendment right to

remain silent, it cannot be said that the California Court of

Appeal applied a standard that was “contrary to” clearly

established Supreme Court precedent. Cf. Musladin, 127

S. Ct. at 654.

ANDERSON v. TERHUNE 1413

II

Having failed to heed AEDPA and to acknowledge the lack

of clearly established Supreme Court authority on invoking

one’s Fifth Amendment right to silence, the majority proceeds

to fault the California courts for considering Anderson’s state-

ment in the context of the interview. Maj. Op. at 1389.

Despite the majority’s misconceptions, we simply cannot

pluck the words “I plead the Fifth” out of the transcript and

declare we have an unambiguous statement. See Maj. Op. at

1389 (“Using ‘context’ to transform an unambiguous invoca-

tion into open-ended ambiguity defies both common sense

and established Supreme Court law.”). It defies common

sense to determine what an objectively reasonable officer

would have understood without looking at the totality of the

interview. See Davis, 512 U.S. at 459.

As Judge Silverman aptly displays, see Silverman Concur-

rence at 1399, when considered in context, the state courts

reasonably concluded that there is ambiguity in Anderson’s

statement.1 While the majority may disagree with the conclu-

sion, that is simply insufficient to declare the California Court

of Appeal’s holding “unreasonable.” We have been told

before that objectively unreasonable means something more

than we think the state courts were wrong. “[A]n unreason-

able application of federal law is different from an incorrect

application.” Williams v. Taylor, 529 U.S. 362, 410 (2000);

see also Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007)

(stating that under AEDPA the petitioner must meet the “sub-

stantially higher threshold” of unreasonableness); Brown v.

Payton, 544 U.S. 133, 143 (2005) (denying AEDPA relief

1

Where I part company with my brother Silverman is in his conclusion

that the sheriff’s detective was being sarcastic and already understood

what Anderson meant by “pleading the Fifth” when he asked for clarifica-

tion. See infra, § III. In the face of the trial judge’s factual determination

that an ambiguity existed triggering the detective’s justification for seek-

ing clarification, AEDPA dictates that we defer to the trial court.

1414 ANDERSON v. TERHUNE

because “[e]ven on the assumption that [the state court’s] con-

clusion was incorrect, it was not unreasonable”); Mitchell v.

Esparza, 540 U.S. 12, 18 (2003) (per curiam) (“We may not

grant respondent’s habeas petition . . . if the state court simply

erred in concluding that the State’s errors were harmless.

. . .”); Lockyer, 538 U.S. at 75 (reversing us because, by

defining “unreasonable application” as “clear error,” we “fail-

[ed] to give proper deference to state courts by conflating

error (even clear error) with unreasonableness”); Woodford v.

Visciotti, 537 U.S. 19, 25 (2002) (per curiam) (reversing us

because we failed to observe the distinction between an incor-

rect application and an unreasonable application).

Therefore, even if we could grant habeas relief in the

absence of clearly established Supreme Court precedent, I

would deny the petition. The California courts’ application of

Davis and its finding of ambiguity was reasonable.

III

The only other way to grant Anderson habeas relief

requires the majority to overrule the California Court of

Appeal’s factual finding. My colleagues have to find that the

state court conclusion was “an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). But in considering

Anderson’s motion to suppress, the Shasta County trial court

considered live testimony from the interrogating officers and

heard the audiotapes of the confession. The California Court

of Appeal then adopted the trial court’s factual finding verba-

tim:

Given the totality of the circumstances in this matter,

the court concludes that while the defendant articu-

lated words that could, in . . . isolation, be viewed as

an invocation of his right to remain silent, the defen-

dant did not intend to terminate the interview. The

interrogating officer did not continue or reinitiate the

ANDERSON v. TERHUNE 1415

interview by posing the question. “Plead the Fifth.

What’s that?” The questions can reasonably be char-

acterized as a request for clarification or confirma-

tion that the defendant wished to assert his right to

remain silent, and nothing more. What followed is

important to a determination of the question. Specifi-

cally, the defendant launched off on a discourse and,

ultimately, engaged in a debate without making any

reference to an invocation of the right to remain

silent. It was the defendant, not the interrogators,

who continued the discussion. Accordingly, while

words of invocation were spoken by the defendant,

the court concludes that, in any case, he effectively

waived the right to remain silent by what followed.

Moreover, the California Court of Appeal took note of an

interrogating officer’s testimony during the hearing on the

motion to suppress. “[T]he interrogating officer testified he

believed that in saying, “I plead the Fifth[,]” [Anderson] was

simply indicating an unwillingness to discuss the details of his

drug use, and not a desire to terminate the interrogation.”

This is not a situation where a suspect clearly states his or

her intent (such as when a witness invokes his Fifth Amend-

ment right to refuse to answer a specific question at trial). Cf.

Arnold, 421 F.3d at 861-62 (finding that Arnold unequivo-

cally invoked his right to remain silent when he told the offi-

cers that he did not want to talk on tape). Instead, in response

to a direct question about his drug use, Anderson, after will-

ingly answering questions about the murder for two and one-

half hours, responded “I plead the Fifth.” The officers did not

respond by asking Anderson more questions about his drug

use. Rather, the officer asked, “Plead the Fifth. What’s that?”

Having considered all of the evidence, the Shasta County

Superior Court found as a matter of fact that Anderson did not

intend to end the interview and that the officers asked a legiti-

mate clarifying question. Anderson does not challenge the

state court’s fact-finding process, and he has failed to rebut

1416 ANDERSON v. TERHUNE

the trial court’s factual finding by clear and convincing evi-

dence, as he must under AEDPA. Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004) Admittedly, the detective could

have phrased his clarifying question differently, and perhaps

he should have uttered it with less sarcasm, but a poorly-

phrased question without more is not grounds to grant federal

habeas corpus relief.

AEDPA mandates comity and deference to California’s

decision that Anderson’s confession was voluntary. Rejecting

it, the majority decrees that a murderer “is to go free because

the constable has blundered.” See People v. Defore, 242 N.Y.

13, 21 (1926) (Cardozo, J.).

I respectfully dissent.