Kevin Jones, Jr. v. K. Harrington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN JONES, JR., No. 13-56360

Petitioner-Appellant,

D.C. No.

v. 2:10-cv-05071-GW-PLA

K. HARRINGTON,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted August 31, 2015

Pasadena, California

Filed July 22, 2016

Before: Alex Kozinski, Diarmuid F. O’Scannlain,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge O’Scannlain

2 JONES V. HARRINGTON

SUMMARY*

Habeas Corpus

The panel reversed the district court’s judgment denying

California state prisoner Kevin Jones’s habeas corpus petition

challenging his murder conviction, and remanded with

instructions to grant the writ, in a case in which Jones, after

hours of police questioning with little progress, told the

officers “I don’t want to talk no more.”

The panel held that any reasonable jurist would have to

conclude that when Jones said he did not want to talk “no

more,” he meant it, and that by continuing to interrogate

Jones after his invocation of his right to remain silent, the

officers squarely violated Miranda v. Arizona. The panel

wrote that the government cannot use against Jones anything

he said after his invocation, and held that allowing the state

to use his post-invocation statements against him, even to

argue that his initial invocation was ambiguous, is contrary to

clearly established Supreme Court case law.

Dissenting, Judge O’Scannlain wrote that whether one

believes that the California courts’ determination that Jones’s

statement was not unambiguous when considered in full

context to be correct or not, that determination rests on a

reasonable application of clearly established Supreme Court

law to the facts of the case and must therefore stand under the

deferential standard of review.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JONES V. HARRINGTON 3

COUNSEL

Kathryn A. Young (argued), Deputy Federal Public Defender;

Hilary Potashner, Federal Public Defender; Office of the

Federal Public Defender, Los Angeles, California; for

Petitioner-Appellant.

David Glassman (argued), Stephanie A. Miyoshi, and Ana R.

Duarte, Deputy Attorneys General; Lance E. Winters, Senior

Assistant Attorney General; Gerald A. Engler, Chief

Assistant Attorney General; Kamala D. Harris, Attorney

General of California; Office of the Attorney General, Los

Angeles, California; for Respondent-Appellee.

4 JONES V. HARRINGTON

OPINION

BYBEE, Circuit Judge:

The Los Angeles Police Department suspected that

defendant Kevin Jones was involved in a gang shooting that

left one person dead and two injured. Detectives picked

Jones up and began interrogating him. After hours of

questioning, and little progress, Jones finally told the officers

“I don’t want to talk no more.” Undeterred, the officers

continued questioning Jones, and eventually, he made a

number of incriminating statements. Jones’s statements were

the lynchpin of the state’s prosecution against him—and

Jones was convicted and sentenced to seventy-five years to

life.

On direct appeal, Jones contended that officers were

wrong to continue to interrogate him after he invoked his

right to remain silent, and that his incriminating statements

should not have been used against him. The California Court

of Appeal held that Jones did not unambiguously invoke his

right to remain silent, so no suppression was warranted. It

reasoned that after officers continued to interrogate Jones

with only a single follow-up question, he continued to talk

and made statements that cast some doubt on whether he had

actually invoked his right to remain silent.

But the Supreme Court has been clear on this point: When

a suspect invokes his right to silence, the officers’s

interrogation must cease. Period. See Miranda v. Arizona,

384 U.S. 436, 444 (1966). By continuing to interrogate Jones

after his invocation, the officers squarely violated Miranda.

That means the government cannot use against Jones

anything he said after his invocation. And that includes using

JONES V. HARRINGTON 5

Jones’s subsequent statements to “cast retrospective doubt on

the clarity of [his] initial request itself.” Smith v. Illinois,

469 U.S. 91, 98–99 (1984) (per curiam); see Davis v. United

States, 512 U.S. 452, 458 (1994); Miranda, 384 U.S. at 444.

Allowing the state to use Jones’s post-invocation statements

against him, even to argue that his initial invocation was

ambiguous, is thus contrary to clearly established Supreme

Court case law. Once Jones said he wished to remain silent,

even one question was one question too many.

We hold that any reasonable jurist would have to

conclude that when Jones said he did not want to talk “no

more,” he meant it. The Court of Appeal’s decision is both

contrary to and an unreasonable application of clearly

established Supreme Court law, and it is based on an

unreasonable determination of the facts. Further, given the

pivotal role Jones’s statements played at trial, the trial court’s

error was not harmless. We reverse the judgment of the

district court and remand with instructions to grant the writ.

I

A. The Shooting

In August of 2003, three teenagers—members of the

Eight Treys Gangster Crips—were stopped at a gas station

that bordered the territory of neighboring rival gang Westside

Rolling 90s Crips. A black Ford pulled up to the teens. An

African-American male wearing a Cleveland Indians cap

leaned out the passenger window and shouted, “F— [Eight

Treys]. This is Westside Rolling Crips.” The Ford then

drove off.

6 JONES V. HARRINGTON

The three teenagers finished pumping their gas, and

pulled out of the gas station into the intersection. Moments

later, the black car reappeared on their right side. The driver

of the black car, a “[l]ight skinned” African-American, made

a Rolling 90s gang sign, and then turned and said something

to his passenger. The passenger lifted himself onto the

window frame of his door. He leveled a semi-automatic

weapon at the teens, and opened fire. Two of the teens were

struck, along with a third person who was driving nearby.

One of the teens died from his wounds later that night.

On August 15, 2003, police officers stopped Jones, who

was driving his black two-door Ford Escort. The officers had

previously received a tip from an informant that Jones was a

member of the Rolling 90s who drove a car like the one

identified in the shootings. The police found a Cleveland

Indians cap in Jones’s car, and after impounding the car,

matched fingerprints on the outside door to a person who

belonged to a gang affiliated with the Rolling 90s. Police

brought Jones in for questioning that night.

B. The Interrogation

Jones was brought to the police station some time

between 9:00 and 9:40 p.m. He was read his Miranda rights

and interviewed later that night, beginning at 12:33 a.m., by

Detectives Kevin Jolivette and Bill Fallon. Jones was

nineteen years old, had graduated from technical school, and

worked full-time for UPS. The interview lasted between two

and three hours.

At the outset of the interview, Jones told the detectives

that he owned his black Ford Escort, and that no one else

drove it. He initially insisted that he had no knowledge of the

JONES V. HARRINGTON 7

shooting, and that on the day in question he had driven

straight home after finishing work.

The detectives lied to Jones, telling him they had

incriminating evidence which did not actually exist. The

detectives told Jones that witnesses had identified his car as

the one used in the shooting and that the car appeared on

surveillance video from the gas station. The detectives held

consistently to the ruse, insisting to Jones that they already

knew he and his car were involved with the shooting, and

implored him to come clean about his role. The police told

Jones that he would receive more lenient punishment if he

admitted to being only the driver rather than the shooter or

the person whose idea the shooting was.

Over the course of the interview, Jones’s story changed

several times. First, he told the police that he had no personal

knowledge of the shooting, and gave a somewhat inconsistent

story about how he learned of the shooting from a barber on

the street while driving home a few days after the shooting.

Jones stated that, on the day of the shooting, he came straight

home from work, parked his car at his house around 5:00 p.m.

or 5:30 p.m., and then walked to the gym. He stated that

around 6:45 he noticed his car was missing, but assumed it

would be returned, and went to the gym anyway. His

explanations for why he assumed the car would be returned

changed somewhat, but he said that by the time he got home

from the gym, the car was back. As detectives continued to

press Jones about his implausible story, the following

exchange occurred:

Jolivette: Kevin, do you think – why don’t

you stop this man.

8 JONES V. HARRINGTON

Jones: All right.

Jolivette: Stop this. The thing is you drove a

car, it shows that on the tape and that’s all I’m

going to put down, as far as what you were

doing. You drove the car. You just didn’t

know it was going to happen like that. Kevin,

sit up, man.

Jones: I don’t want to talk no more, man.

Jolivette: I understand that, but the bottom

line is –

Jones: You don’t want to hear what I’m

telling you.

Jolivette: I’m so sorry. I can’t – you’re

mumbling, you got to speak up. I got bad

hearing.

Jones: I’m telling you all.

From there, questioning continued as normal, and eventually

Jones made incriminating statements. Most importantly, he

admitted to driving the car during the shooting. He claimed

that a stranger with a gun jumped into his car, ordered him to

drive to the gas station, yelled at the teenagers, and then

hopped out of his car at the intersection and began shooting.

Officers arrested Jones a few days later and interviewed

him again. The detectives pressed him on the implausibility

of his earlier statements about driving a stranger to the

shooting, but Jones again stated that was what happened.

JONES V. HARRINGTON 9

C. The Trial

The case against Jones revolved around the statements he

made during the police interrogations. In her closing

argument, the prosecutor explained there were no witnesses:

“From the beginning, I had told you that there have been no

identifications of Mr. Jones. None of the surviving victims

were able to pick him out of the photographic lineup. None

of them came into court and ID'd Mr. Jones.” No physical

evidence connected Jones to the shooting. Indeed, witness

testimony cut in favor of Jones’s case: Witnesses stated that

the car involved in the shooting was different than Jones’s

car, and Jones’s baseball cap was different from the one

witnesses described.

Instead, the government relied on Jones’s statements.

During her opening statement, the prosecutor told the jury

that “you’re going to hear Jones’ own words which convict

him . . . of being the driver in this case.” The prosecutor

concluded “Through all of these lies, you will have his

admission that he drove in the shooting.” During closing

arguments the prosecutor again relied heavily on Jones’s

statements:

So what do you have? You have Mr. Jones by

his own words identifying himself as the

driver in this shooting . . . [H]e tells you he

was the driver in the shooting. And that’s it.

That’s all you need. That’s evidence beyond

a reasonable doubt that he is the driver in the

shooting . . . Once you review those tapes, if

you believe those tapes, that’s the end of the

inquiry for Mr. Jones. . . . So when you look

through Jone[’s] taped statements, his words

10 JONES V. HARRINGTON

convicting himself as the driver in the

shooting is all that you need. That is proof

beyond a reasonable doubt.

The jury convicted Jones of first degree murder, two

counts of attempted murder, two counts of shooting at an

occupied motor vehicle, and assault with a firearm. The trial

court sentenced Jones to five years, plus 75 years to life.

D. Post-Trial Review

Jones appealed to the California Court of Appeal. The

court affirmed his conviction in an unpublished decision. It

ruled on Jones’s Miranda argument in a single paragraph,

reasoning that Jones’s statement that he did not “want to talk

no more” was ambiguous in light of the statements he made

after:

At a single point, midway through the first

interview, appellant said, “I don't want to talk

no more, man.’ His next sentence, however,

was, ‘You don't want to hear what I'm telling

you.” Taken in context, considering [Jones’s]

willingness to talk with the detectives before

and after that point in the interview, [Jones]

was expressing frustration with the detectives’

refusal to believe him, rather than

unambiguously invoking his right to remain

silent.

The court thus relied on the fact that Jones’s next sentence

after saying he did not want to talk—made in response to

officers continuing to question him—made his initial

invocation ambiguous. Jones filed a petition for review with

JONES V. HARRINGTON 11

the California Supreme Court, which was denied without

comment.

Jones then filed a federal habeas petition. The magistrate

judge filed a Final Report and Recommendation—a report

summarily adopted by the district judge—recommending

denial of Jones’s petition. Because the district judge adopted

the magistrate judge’s report, we look to this report as the

decision. But curiously, in granting the certificate of

appealability, the district judge’s analysis suggested that the

State violated Miranda here. The district judge observed that

Jones’s statement was a “seemingly unambiguous” invocation

of his right to remain silent. “Petitioner said, ‘I don’t want to

talk no more, man.’ Aside from mentioning Miranda by

name, what could be clearer?”

Like the California Court of Appeal, the magistrate

judge’s report held Jones’s request was ambiguous in light of

the statements he made after invoking his right to silence.

The court also relied on the fact that Jones did not ask to

remain silent again after his initial invocation.

II

We review the district court’s denial of a habeas petition

de novo. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th Cir.

2008). The Anti-Terrorism and Effective Death Penalty Act

of 1996 (AEDPA) governs Jones’s petition. See Woodford v.

Garceau, 538 U.S. 202, 210 (2003). We may grant the

petition only if the state court’s adjudication of Jones’s claim

“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

“resulted in a decision that was based on an unreasonable

12 JONES V. HARRINGTON

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

A decision is “contrary to” Supreme Court precedent

where “the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). We may not

grant habeas relief unless the state court's determination “was

so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011). “[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.” Williams, 529 U.S. at 410

(emphasis removed). “A state court’s determination that a

claim lacks merit precludes federal habeas relief so long as

fair-minded jurists could disagree on the correctness of the

state court’s decision.” Richter, 562 U.S. at 101 (internal

quotation marks omitted). The standard is meant to be

“difficult to meet.” Id. at 102.

Similarly, the standard for finding that a state court made

an unreasonable determination of the facts is “daunting,” and

“will be satisfied in relatively few cases.” Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004). But we can “conclude

the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence.” Maxwell v. Roe,

628 F.3d 486, 503 (9th Cir. 2010). And where the state court

makes factual findings “under a misapprehension as to the

correct legal standard,” “the resulting factual determination

will be unreasonable and no presumption of correctness can

JONES V. HARRINGTON 13

attach to it.” Taylor, 366 F.3d at 1001; see also Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003).

In this case, the California Supreme Court summarily

denied review. Looking through to the last reasoned state

court decision, the California Court of Appeal’s decision will

serve as the focus of our analysis. See Cannedy v. Adams,

706 F.3d 1148, 1158 (9th Cir. 2013) amended on denial of

reh’g, 733 F.3d 794 (9th Cir. 2013).

III

The California Court of Appeal determined that Jones’s

statement that he “don’t want to talk no more” was made

ambiguous by statements he made later in the interrogation.

As we demonstrate in Part A, this determination was contrary

to and an unreasonable application of clearly established

Supreme Court law. 28 U.S.C. § 2254(d)(1). By continuing

to interrogate Jones after he had invoked his right to remain

silent, officers violated Miranda—which means the

government cannot use against Jones anything he said after

his invocation. This includes using Jones’s subsequent

statements to police to “cast retrospective doubt on the clarity

of the initial request itself.” Smith. 469 U.S. at 100. “To

permit the continuation of custodial interrogation” after

Jones’s invocation “would clearly frustrate the purposes of

Miranda.” Michigan v. Mosley, 423 U.S. 96, 102 (1975). To

the extent the California Court of Appeal read ambiguity into

Jones’s invocation—based on statements he made later—that

finding was “an unreasonable determination of the facts.”

28 U.S.C. § 2254(d)(2). Because we also conclude in Part B

14 JONES V. HARRINGTON

that the admission of this evidence at trial was prejudicial, we

reverse the district court’s decision denying the writ.1

A. Violation of clearly established law

1. Officers violated Miranda by continuing to

interrogate Jones after he invoked his right to remain

silent

The Supreme Court has made clear that once a person

being questioned “indicates in any manner that he does not

wish to be interrogated, the police may not question him.”

Miranda, 384 U.S. at 445. “The mere fact that he may have

answered some questions or volunteered some statements on

his own does not deprive him of the right to refrain from

answering any further inquiries.” Id. To make sure that we

understood this procedure, the Court repeated it: “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.” Id. at 473–74. “[A]ny statement

taken after the person invokes his privilege cannot be other

than the product of compulsion, subtle or otherwise.” Id. at

474. Once a person has “exercise[d] . . . his option to

terminate questioning[,] he can control the time at which

questioning occurs, the subjects discussed, and the duration

of the interrogation. . . . [T]he admissibility of statements

obtained after the person in custody has decided to remain

silent depends under Miranda on whether his right to cut off

questioning was scrupulously honored.” Mosley, 423 U.S. at

103–04 (internal quotation marks omitted).

1

Because we reverse on Miranda grounds, we need not reach Jones’s

alternative argument that his statements to police were involuntary. See

Dickerson v. United States, 530 U.S. 428, 433–34 (2000).

JONES V. HARRINGTON 15

The Supreme Court has left us with no doubt that this

prohibition on continued questioning is a “bright-line” rule,

“a prophylactic safeguard whose application does not turn on

whether coercion in fact was employed.” Id. at 98, 99 n.8.

“[C]onjecture and hair-splitting” is what “the Supreme Court

wanted to avoid when it fashioned the bright-line rule in

Miranda.” Anderson, 516 F.3d at 790; cf. Davis, 512 U.S. at

461 (noting that the benefit of a 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”).

Here, there is no doubt officers violated Miranda.

Certainly, Jones saying he “did not want to talk no more”

qualifies as “indicat[ing] in any manner that he does not wish

to be interrogated.” Miranda, 384 U.S. at 445 (emphasis

added). And there is no real dispute that officers continued

interrogating Jones. Officers knew well that he was invoking

his right, but continued to push him for more answers: “I

understand that but—.” No fairminded jurist could

reasonably interpret this statement to be “ceasing” the

interrogation. Id.

2. Jones’s invocation was not ambiguous under Berghuis

v. Thompkins

The Supreme Court recently added another layer to the

Miranda inquiry: Whether the suspect invoked his right to

remain silent unambiguously. Berghuis v. Thompkins,

560 U.S. 370, 381 (2010). Up until Thompkins, the right to

remain silent could be invoked in “any manner.” Miranda,

384 U.S. at 445. On the other hand, the right to counsel could

be invoked only “unambiguously.” Thompkins, 560 U.S. at

16 JONES V. HARRINGTON

381. In Thompkins, the Court clarified that the requirement

that the right to counsel be invoked “unambiguously” would

now be applied with respect to requests to remain silent. Id.

Because we must now apply the rules from right to counsel

cases to right to silence cases like Jones’s, we first walk

through the right to counsel caselaw.

In Miranda, the Court held that the right to remain silent

could be invoked “in any manner” and that the interrogation

must then “cease.” Miranda, 384 U.S. at 445. By contrast,

with respect to the right to counsel, Miranda announced a

slightly different rule: “If the individual states that he wants

an attorney, the interrogation must cease until an attorney is

present.” 384 U.S. at 474 (emphasis added). The scope of

the two rights was thus not coextensive—the Court in

Miranda was unequivocal on what officers must do when an

accused invoked his right to silence; it was not as clear what

they had to do when the right to counsel was invoked.

From there the caselaw diverged into two lines: One

addressing invocations of the right to silence, the other

addressing invocations of the right to counsel. In Michigan

v. Mosley, 423 U.S. 96 (1976), with respect to the right to

silence, the Court clarified that Miranda did not mean that

“once a person has indicated a desire to remain silent,

questioning may be resumed only when counsel is present,”

id. at 104 n.10, but repeated what Miranda had said: the

suspect’s “right to cut off questioning” must be “fully

respected,” id. at 104.

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

continued to develop the requirements for invocations of the

right to counsel. It held that “when an accused has invoked

his right to have counsel present during custodial

JONES V. HARRINGTON 17

interrogation, a valid waiver of that right cannot be

established by showing only that he responded to further

police-initiated custodial interrogation even if he has been

advised of his rights.” Id. at 484 (footnote omitted). This

was a change—a strengthening of the accused’s rights—in

the right to counsel: “Edwards established a new test for

when . . . waiver would be acceptable once the suspect had

invoked his right to counsel: the suspect had to initiate

subsequent communication.” Solem v. Stumes, 465 U.S. 638,

646 (1984). See id. at 648. This was different than the test

for the right to silence, which allowed police to continue

questioning after some delay. Mosley, 423 U.S. at 118.

Right to counsel cases then addressed the requirement at

issue in this case: How we determine that “the suspect [has]

unambiguously request[ed] counsel.” Davis v. United States,

512 U.S. 452, 459 (1994). This development in the right to

counsel context makes sense. Suspects can invoke their right

to remain silent in many ways. They may invoke their right

by simply remaining silent, or they may indicate in other

ways—including by words—that they do not want to talk

with police. By contrast, invoking the right to counsel cannot

be accomplished by silence or pantomime, but requires the

suspect to articulate specifically that she wants counsel. This

line of cases explained that an “ambiguous or equivocal”

request for counsel does not require police questioning to end

and places no limits on how the interrogation can be used

later. Id.

But the Court also held that the standard for invoking the

right to counsel unambiguously was not a demanding one. A

suspect need only invoke his rights “sufficiently clearly that

a reasonable police officer in the circumstances would

understand the statement to be [such] a request.” Id. at 459.

18 JONES V. HARRINGTON

He need not specifically reference his constitutional rights,

nor need he use any specific terminology. Id.

The Court clarified that in determining whether an

invocation of the right to counsel is ambiguous, “[u]nder

Miranda and Edwards, . . . an accused’s post request

responses to further interrogation may not be used to cast

doubt on the clarity of his initial request for counsel.” Smith,

469 U.S. at 92. Allowing the government to use these post-

request statements to “cast retrospective doubt” on prior

unambiguous invocations would give officers an incentive to

ignore invocations in the hopes that a suspect may be

persuaded to talk anyway. Id. at 100. “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 . . . .” Id.

at 99. Construing a person’s unambiguous invocation of his

Fifth Amendment rights by “looking to [his] subsequent

responses to continued police questioning” and whether

“considered in total, [his] statements were equivocal” is

“unprecedented and untenable.” Id. at 97 (emphasis

removed). Accordingly, “under 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. Such

subsequent statements are relevant only to the distinct

question of waiver.” Id. at 100.2

2

The dissent argues that we have unfairly attributed “sweeping

propositions” to Smith. But we and the dissent seem to agree on Smith’s

propositions. The dissent characterizes Smith’s holding as: “[O]nce a

suspect clearly invokes his right to counsel, officers may not continue to

question him.” Dissenting Op. at 36. Indeed, this is the same holding we

JONES V. HARRINGTON 19

Finally, in Thompkins, the Court noted it had “not yet

stated” whether the rules about ambiguity it had developed in

the context of invocations of the right to counsel should also

apply in the context of invocations of the right to silence.

Thompkins, 560 U.S. at 381. The Court held “there is no

principled reason to adopt different standards for determining

when an accused has invoked the Miranda right to remain

silent and the Miranda right to counsel as issue in Davis.” Id.

Thus, the Court held that the same “standards” about

rely on from Miranda: Once an “individual indicates in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.” Miranda, 384 U.S. at 473–74. Both cases

stand for the simple proposition that officers must stop questioning a

suspect once he unambiguously invokes his right to silence—and if they

do not—the suspect’s statements can no longer be used against him.

But the dissent appears to suggest something quite different. The

dissent argues for a standard that would permit officers to ask some

threshold number of questions before we find that officers have indeed not

“ceased” “interrogating.” The dissent makes much out of the fact that

“Detective Jolivette did not even get out a complete sentence.” Dissenting

Op. at 37. The dissent says that this is nothing like Smith where the

officers interrogated the suspect “at length” after his invocation. But the

dissent is suggesting we create a gray area about how much interrogation

is interrogation enough. And that is exactly what the Supreme Court told

us not to do when it made Miranda a “bright-line” rule. Smith, 469 U.S.

at 99 n.8. There can be no serious dispute that officers did not “cease”

their interrogation of Jones once he had unambiguously told them he

wanted to remain silent. And there the Miranda analysis must end.

The dissent also says our decision “would have sweeping

consequences for police officers.” Dissenting Op. at 38. But this parade

of horribles is baseless. The rule governing interrogations is the same

after this case as it was before—it comes straight from Miranda: If a

suspect unambiguously states he wants to remain silent, the officers must

stop interrogating. Full stop.

20 JONES V. HARRINGTON

ambiguity it had developed in Davis and its progeny should

now apply to invocations of the right to silence. Id.

The government and the dissent urge us to require that

Jones’s statements be “unambiguous” in light of Thompkins,

despite that this case came out long after the California

Supreme Court’s decision. Dissenting Op. at 26, 31.

Thompkins’s holding is nominally a new holding, see id. at

10–11, but in this context it is a holding in the government’s

favor because it clarified that invocations of the right to

remain silent must also be unambiguous. Under the

circumstances, we will apply Thompkins’s directive that the

same standards for finding ambiguity in the right to counsel

context should also apply to finding ambiguity in the right to

silence context.

But Thompkins does not change much: No fairminded

jurist could determine that Jones’s invocation was ambiguous.

First, Jones’s initial request to remain silent was

unambiguous on its face, and nothing about the prior context

of the statement made it ambiguous or equivocal. Jones

stated: “I don’t want to talk no more”; in other words, he did

not want to talk anymore. See Garcia v. Long, 808 F.3d 771,

773–74 (9th Cir. 2015) (holding that a suspect answering

“no” to the question “[d]o you wish to talk to me?” was an

unambiguous request to remain silent under Miranda). Jones

did not equivocate by using words such as “maybe” or

“might” or “I think.” See Anderson, 516 F.3d at 788; cf.

Smith, 469 U.S. at 96–97 (holding that nothing in the

statement “Uh, yeah. I’d like to do that” suggested

equivocation). Nor did anything Jones did or said leading up

to this statement make it ambiguous. During the

interrogation leading up to this point, Jones spoke little. Most

of the interrogation consisted of detectives repeatedly asking

JONES V. HARRINGTON 21

Jones questions, and Jones giving short, often one-word

answers. In any event, the fact that Jones spoke to officers

for a while before invoking his right to remain silent makes

no difference. The California Court of Appeal’s decision is

simply “contrary to” and “an unreasonable application” of

Miranda. 28 U.S.C. § 2254(d)(1); Miranda, 384 U.S. at

473–74 (holding that the right to remain silent can be invoked

“any time prior to or during questioning”).

The only statements that could cast any ambiguity on

Jones’s initial invocation were statements he made after the

fact. Indeed, the California Court of Appeal relied largely on

Jones’s statement made after officers continued interrogating

him, reasoning that because Jones made a follow-up

statement after only a single clarifying comment from

officers, his initial invocation was ambiguous. But it was

clearly established, when determining whether the invocation

of a constitutional right is ambiguous, that the California

courts could not look to post-invocation statements to “cast

retrospective doubt on the clarity of [Jones’s] initial request

itself.” Smith, 469 U.S. at 98–99.3 Officers continued to

3

The dissent argues that Smith v. Illinois, 469 U.S. 91 (1984), cannot

serve as “clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254 (d)(1), because Smith rested

on Miranda’s invocation of the right to counsel, not on Miranda’s

invocation of the right to silence. Dissenting Op. at 33–35. See Smith,

469 U.S. at 98-99 (discussing “the request for counsel”). The dissent

contends that only recently, in Thompkins, did the Supreme Court declare

the right to silence should be treated the same as the right to counsel.

According to the dissent, since Thompkins post-dates the California

decisions in this case, it cannot serve as the “clearly established Federal

law” required by AEDPA. Dissenting Op. at 34.

With respect, we think the dissent is wrong. The dissenting opinion

begins by quoting Thompkins. Dissenting Op. at 26; see also id. at 31.

22 JONES V. HARRINGTON

interrogate Jones after he had unambiguously asked to remain

silent. When Jones said “I don’t want to talk no more,” the

officer responded: “I understand that but—.” That means the

government cannot rely on Jones’s later statements to

establish that his earlier statement was ambiguous.

And the California court’s allusion to the fact that officers

only interrogated Jones briefly after his invocation is of no

matter. Even one question was one question too many.

When an “individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain silent,

the interrogation must cease.” Miranda, 384 U.S. at 473–74

(emphasis added).

Nor does it matter, as the California court and federal

district court seemed to suggest, that Jones did not repeat his

request to remain silent later in the interrogation: “Under

Miranda, the onus [is] not on [the suspect] to be persistent in

[his] demand to remain silent. Rather, the responsibility

f[alls] to the law enforcement officers to scrupulously respect

The dissent insists that we apply Thompkins to ensure that Jones invoked

his right to remain silent “unambiguously,” but the dissent doesn’t want

us to consider the Supreme Court’s earlier cases describing what

constitutes an ambiguous or unambiguous invocation. The dissent can’t

have it both ways. Either we apply Thompkins—and with it prior cases

such as Davis, Smith, Solem, Edwards, and Miranda on which it

builds—or we must ignore it. What we cannot do is say we are going to

apply Thompkins and then ignore the standard Thompkins tells us to apply

(the standards created in its right to counsel cases). If we ignore cases

such as Davis and Smith, what standards for ambiguity are we to apply?

Some new standard? That is exactly what Thompkins told us the Court

would not do: “there is no principled reason to adopt different standards

for determining when an accused has invoked the Miranda right to remain

silent and the Miranda right to counsel at issue in Davis.” Thompkins,

560 U.S. at 381.

JONES V. HARRINGTON 23

[his] demand.” United States v. Lafferty, 503 F.3d 293, 304

(3d Cir. 2007). Relying on the fact 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. A

statement taken after the suspect invoked his right to remain

silent ‘cannot be other than the product of compulsion, subtle

or otherwise.’” Anderson, 516 F.3d at 789–90 (quoting

Miranda, 384 U.S. at 474).

Although we give considerable deference to the state

courts, “AEDPA deference is not a rubber stamp.” Id. at 786

(citing Miller-El v. Dretke, 545 U.S. 231, 240, 265 (2005)).

The California Court of Appeal’s determination that Jones’s

statement “I don’t want to talk no more” was ambiguous

based on his responses to further questioning, was either “an

unreasonable determination of the facts,” 28 U.S.C.

§ 2254(d)(2), or an “unreasonable application” of Miranda,

id. § 2254(d)(1). By continuing to ask questions, the officers

failed to “scrupulously honor” Jones’s simple request. We

accordingly hold that 28 U.S.C. § 2254(d) does not bar

habeas review of Jones’s Miranda claim, and we conclude,

on de novo review, that Jones’s constitutional rights were

violated when his interrogation was used at trial.

B. Harmlessness

Miranda error does not entitle Jones to habeas relief if the

error was harmless. In AEDPA proceedings, we apply the

actual-prejudice standard set forth in Brecht v. Abrahamson,

507 U.S. 619 (1993). Under Brecht, habeas relief is only

available if the constitutional error had a “substantial and

injurious effect or influence” on the jury verdict or trial court

decision. Id. at 623 (quoting Kotteakos v. United States,

24 JONES V. HARRINGTON

328 U.S. 750, 776 (1946)). This standard is satisfied if the

record raises “grave doubts” about whether the error

influenced the jury’s decision. Davis v. Ayala, 135 S. Ct.

2187, 2203 (2015) (brackets omitted) (quoting O’Neal v.

McAninch, 513 U.S. 432, 436 (1995)).

Under AEDPA, we accord deference to a state court’s

harmlessness determination. Nevertheless, because the

Brecht standard that we apply on collateral review is “less

onerous” for the state than the “harmless beyond a reasonable

doubt” standard that state courts apply on direct review,

Brecht, 507 U.S. at 622–23, the Supreme Court has explained

that “it certainly makes no sense to require formal application

of both tests (AEDPA/Chapman and Brecht) when the latter

obviously subsumes the former,” Fry v. Pliler, 551 U.S. 112,

120 (2007). We therefore apply the Brecht test, but we do so

with due consideration of the state court’s reasons for

concluding that the error was harmless beyond a reasonable

doubt. Davis, 135 S. Ct. at 2198.

In Brecht, the Supreme Court determined that the state’s

improper use of the petitioner’s post-Miranda silence for

impeachment purposes was harmless. 507 U.S. at 638–39.

The state’s physical evidence against the defendant was

“weighty,” and the state’s references to the post-Miranda

evidence were “infrequent.” Id. at 639.

The same cannot be said here. Jones’s own incriminating

statements—made after he had invoked his right to

silence—formed the backbone of the government’s case.

Indeed, there was little other evidence before the jury. No

witnesses identified Jones in relation to the shooting.

Witnesses reported that a four-door vehicle with no body

damage had been driven in the drive-by; Jones drove a two-

JONES V. HARRINGTON 25

door vehicle with extensive body damage. The only evidence

linking Jones to the shooting consisted of an informant who

told detectives that Jones was involved with a rival gang, and

that Jones drove a vehicle the same color (black) as the one

used in the shooting. It is true that, prior to invoking his right

to silence, Jones made some confusing comments about his

whereabouts during the shooting, but that was weak tea

compared with Jones’s other words admitting to the crime.

Jones likely could not have been convicted without his

confession.

Importantly, the prosecutor repeatedly referred to Jones’s

incriminating statements, telling the jury that they could

convict beyond a reasonable doubt based only on his own

statements. The prejudice from a defendant’s confession

“cannot be soft pedaled.” Anderson, 516 F.3d at 792. “A

confession is like no other evidence”; it may be “the most . . .

damaging evidence that can be admitted” against a defendant.

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (internal

quotation marks omitted).

Exercising “extreme caution,” as we must, “before

determining that the admission of [a] confession at trial was

harmless,” id. at 296, we conclude that the admission of

Jones’s interrogation had a substantial and injurious effect on

the jury’s decision. Brecht, 507 U.S. at 637–38. In light of

our decision, we do not reach Jones’s remaining claims.

IV. CONCLUSION

The Supreme Court has repeatedly made clear that when

a suspect simply and unambiguously says he wants to remain

silent, police questioning must end. Under any reasonable

interpretation of the facts, Jones simply and unambiguously

26 JONES V. HARRINGTON

invoked that right. Clearly established Supreme Court law

required the suppression of Jones’s interrogation. The State

shall either release Jones or grant him a new trial.

REVERSED and REMANDED.

O’SCANNLAIN, Circuit Judge, dissenting:

A suspect who wishes to invoke his Fifth Amendment

right to silence must do so “unambiguously.” Berghuis v.

Thompkins, 560 U.S. 370, 381–82 (2010). Well into his

interrogation, the suspect in this case made a single statement

that, standing alone, might be characterized as an

unambiguous invocation of such right. The California courts

determined, however, that the suspect’s statement was not

unambiguous when considered in full context. Whether one

believes that determination to be correct or not, it

unquestionably rests on a reasonable application of clearly

established Supreme Court law to the facts of the case before

us—and it must therefore stand under our deferential standard

of review. See 28 U.S.C. § 2254(d); Cullen v. Pinholster,

563 U.S. 170, 181 (2011).

In reaching its conclusion to the contrary, the majority

faults the state court for failing to apply Supreme Court

precedent that post-dates the state court’s decision, attempts

to extend readily distinguishable Supreme Court precedent to

circumstances the Court has never considered, and ultimately

grants relief to Jones because the state court’s decision failed

to conform to the majority’s preferred view of the law—all of

which we are forbidden from doing under § 2254.

JONES V. HARRINGTON 27

I respectfully dissent.

I

A

Let’s begin by restating the relevant facts.

After he was identified as the potential driver in a gang-

related shooting that injured two teenagers and killed a third,

Kevin Jones, Jr. was brought in for questioning by the Los

Angeles Police Department. LAPD Detectives Kevin

Jolivette and Bill Fallon proceeded to interview Jones for a

period of a few hours, beginning shortly after midnight on

August 16, 2003. After being informed of his constitutional

rights, Jones spoke willingly with the detectives. Throughout

the interview, the detectives employed a ruse against Jones,

telling him that both eye witnesses and security-camera

footage identified his car as having been involved in the

drive-by shooting. The officers pressed Jones on both his and

his car’s whereabouts the night of the shooting, and they

urged him to admit his involvement in the crime.

Jones spoke at length with the detectives, and as the

majority recounts, his story changed considerably throughout

the course of the interview. After extensive interrogation,

Jones clung to the assertion that on the evening of the crime,

his car had gone missing for several hours, even though he

admitted that no one other than him used the car. Jones

insisted that he had noticed his car missing from its parking

space that evening, but for various reasons, he thought little

of it and simply assumed that the car would be returned to

him. Rather than investigate where his car had been taken,

Jones stated that he went to a nearby gym for a couple hours

28 JONES V. HARRINGTON

and—as luck would have it—when he returned home, his car

was back.

The detectives pressed Jones on the implausibility of this

story, leading eventually to the following exchange:

JOLIVETTE: Kevin, do you think – why

don’t you stop this man.

JONES: All right.

JOLIVETTE: Stop this. The thing is you

drove a car, it shows that on the tape, and

that’s all I’m going to put down, as far as

what you were doing. You drove the car. You

just didn’t know it was going to happen like

that. Kevin, sit up, man.

JONES: I don’t want to talk no more, man.

JOLIVETTE: I understand that, but the

bottom line is –

JONES You don’t want to hear what I’m

telling you.

JOLIVETTE: I’m so sorry. I can’t – you’re

mumbling, you got to speak up. I got bad

hearing.

JONES: I’m telling you all.

At that point, the questioning proceeded as it had for hours,

and in short order Jones admitted to driving the car during the

JONES V. HARRINGTON 29

shooting. He professed innocence, however, insisting that a

stranger had jumped into his car, ordered him to drive to the

scene of the shooting, and then jumped out of the car, firing

a gun at the victims. A few days later, police interviewed

Jones again, and he again insisted on this latest version of his

story.

B

Jones was prosecuted largely on the strength of his

incriminating statements and was found guilty by a jury of

first degree murder, two counts of attempted murder, and

other lesser crimes. Jones was sentenced to 75 years to life.

Jones appealed to the California Court of Appeal, arguing,

among other things, that his incriminating statements should

not have been introduced at trial, because they were obtained

in violation of his Fifth Amendment right to silence. The

California Court of Appeal disagreed, concluding that Jones’s

statement that he did not “want to talk no more” was

ambiguous in context and it thus did not require police to end

his interrogation. Jones filed a petition for review

challenging this conclusion with the California Supreme

Court, which the court denied without comment.

Jones then filed a federal habeas petition under 28 U.S.C.

§ 2254, which was denied by the district court. Jones timely

appealed.

II

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), we may grant relief only if the California

30 JONES V. HARRINGTON

Court of Appeal’s1 rejection of Jones’s right-to-silence claim

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States” or “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). Time and again,

the Supreme Court has reminded federal courts—and ours in

particular—that this standard is “difficult to meet” and

“highly deferential,” which “demands that state-court

decisions be given the benefit of the doubt.” Pinholster,

563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86,

102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(per curiam)).

A decision is “contrary to” clearly established law where

the state court “applies a rule that contradicts the governing

law set forth in [Supreme Court] cases” or where it “confronts

a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at

a result different from” the Court. Mitchell v. Esparza,

540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v.

Taylor, 529 U.S. 362, 405–06 (2000)). A state court

unreasonably applies clearly established federal law only if

its determination “was so lacking in justification that there

was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

Richter, 562 U.S. at 103. “[A]n unreasonable application of

1

Because the California Supreme Court summarily denied review, we

look through that denial to the reasoning given by the California Court of

Appeal when it denied Jones’s claim. See Cannedy v. Adams, 706 F.3d

1148, 1158 (9th Cir. 2013), amended on denial of reh’g, 733 F.3d 794 (9th

Cir. 2013).

JONES V. HARRINGTON 31

federal law is different from an incorrect application of

federal law.” Id. at 101 (quoting Williams, 529 U.S. at 410).

“A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s

decision.” Id. (internal quotation marks omitted).

A state-court decision “will not be overturned on factual

grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.” Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003) (emphasis added).

“While not impossible to meet, that is a daunting

standard—one that will be satisfied in relatively few cases,

especially because we must be particularly deferential to our

state-court colleagues.” Hernandez v. Holland, 750 F.3d 843,

857 (9th Cir. 2014) (internal quotation marks omitted). Thus,

a “state-court factual determination is not unreasonable

merely because the federal habeas court would have reached

a different conclusion in the first instance.” Wood v. Allen,

558 U.S. 290, 301 (2010).

III

All parties agree on the foundational principle underlying

this case: a suspect who seeks to invoke his Fifth Amendment

right to silence must do so unambiguously. See Thompkins,

560 U.S. at 381–82. Once he does, the suspect’s right to cut

off questioning must be “scrupulously honored,” Michigan v.

Mosley, 423 U.S. 96, 103–04 (1975) (internal quotation

marks omitted), and the “interrogation must cease,” Miranda

v. Arizona, 384 U.S. 436, 473–74 (1966). But interrogating

officers have no duty to heed a request that—either on its face

or in context—is “ambiguous or equivocal.” Thompkins,

560 U.S. at 381–82.

32 JONES V. HARRINGTON

The California Court of Appeal correctly acknowledged

this rule, and determined that, in context, Jones did not

unambiguously invoke his right to silence. The court

explained that immediately after Jones said he did not “want

to talk no more,” he continued, “You don’t want to hear what

I’m telling you.” The court opined that, “in context,

considering his willingness to talk with the detectives before

and after that point in the interview,” Jones was not

“unambiguously invoking his right to remain silent,” but

instead was “expressing frustration with the detectives’

refusal to believe him.”

There is little doubt that this factual conclusion—that, in

the full context of Jones’s interrogation, any invocation of his

right to silence was ambiguous—is reasonable on the record

before us. When strung together, Jones’s statements quite

reasonably read as the state court portrayed them: not as a

request for silence but as an expression of frustration by a

person who wished the police would believe his story. In the

pivotal exchange, Jones’s thoughts appear scattered and he

seems upset, cutting off Detective Jolivette mid-sentence.

Further, neither before nor after this exchange did Jones even

obliquely mention a desire for silence. Indeed, for all but one

isolated statement, Jones seemed perfectly willing to engage

the detectives. In context, it is not unreasonable to interpret

that singular, stand-out statement as something other than a

clear invocation of the right to remain silent. Under AEDPA,

that factual conclusion therefore must stand, unless it was

based on an unreasonable misapprehension of clearly

established law. See Wood, 558 U.S. at 301–04; Miller-El,

537 U.S. at 340.

The majority does not seriously contest this conclusion,

but instead asserts that clearly established law prohibited the

JONES V. HARRINGTON 33

state court from considering this full factual context when

evaluating the clarity of Jones’s statement. Specifically, the

majority holds that the state court could not find Jones’s

statement ambiguous based on anything Jones said after the

precise moment he uttered, “I don’t want to talk no more,

man.” See Maj. Op. at 4–5, 13–14. But the majority has

failed to identify any case—alone or in combination with

other cases—that clearly establishes anything of the sort.

A

The majority’s assertion that ambiguity can never be

provided by words a suspect says after he supposedly invokes

his right to silence stems, at bottom, from a single Supreme

Court case: Smith v. Illinois, 469 U.S. 91 (1984) (per curiam).

But the Court’s opinion in Smith has no bearing on the case

before us and, in any event, does not stand for the remarkable

proposition the majority attributes to it.

1

First, and most simply, at the time the state court issued

its decision, Smith—a case examining the right to

counsel—could not provide clearly established law for

Jones’s right-to-silence claim. In Miranda v. Arizona, the

Supreme Court held that, during an interrogation, police must

inform a suspect of both rights—his right to remain silent and

his right to have an attorney present—and that they must

cease all questioning upon the suspect’s invocation of either

right. 384 U.S. at 471–74. But, until last December, we had

refused to treat cases defining the standards for invoking one

right (e.g., the right to counsel) as clearly established law

governing the standards for invoking the other right (e.g., the

right to silence). See Garcia v. Long, 808 F.3d 771, 777 n.1

34 JONES V. HARRINGTON

(9th Cir. 2015); Anderson v. Terhune, 516 F.3d 781, 787 n.3

(9th Cir. 2008) (en banc); see also Bui v. DiPaolo, 170 F.3d

232, 239 (1st Cir. 1999) (right-to-counsel precedent did not

“authoritatively answer” question in a right-to-silence case,

even though the Supreme Court “likely would” apply the

same standard to both rights (internal quotation marks

omitted)).

We recently changed our interpretation only because of

intervening Supreme Court precedent. In 2010, the Supreme

Court considered whether past decisions that required an

invocation of the right to counsel to be unambiguous applied

equally to a suspect who sought to invoke his right to silence.

In Berghuis v. Thompkins, the Court held that the same

standards indeed do apply, explaining that it saw “no

principled reason to adopt different standards for determining

when” either right had been invoked. 560 U.S. at 381.

Accordingly, we recently held that, after Thompkins, right-to-

counsel precedent now may indeed provide clearly

established law in right-to-silence cases—despite our past

practice to the contrary. Garcia, 808 F.3d at 777 n.1.

But, critically, this development in the law occurred after

both the California Court of Appeal and the California

Supreme Court issued their decisions on Jones’s claim (in

2008). Under AEDPA, we may grant relief only if the state

court’s decision is irreconcilable with the law as clearly

established by the Supreme Court at the time the state court

acted. Greene v. Fisher, 132 S. Ct. 38, 44–45 (2011);

Pinholster, 563 U.S. at 182. Before Thompkins, it was

anything but clear that right-to-counsel cases governed right-

to-silence claims. That very question was at the heart of the

Supreme Court’s grant of certiorari in Thompkins. See

Thompkins, 560 U.S. at 381. Even if one agrees with the

JONES V. HARRINGTON 35

Court’s affirmative answer to that question, the point is that

the answer had never been given until Thompkins. See id.;

see also Anderson, 516 F.3d at 799 (Tallman, J., dissenting)

(“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.”). Acting before Thompkins, the state court cannot

possibly have failed reasonably to apply Smith’s right-to-

counsel holding to Jones’s right-to-silence claim. Indeed,

before Thompkins, not even our court would have evaluated

Jones’s claim under Smith. See Garcia, 808 F.3d at 777 n.1.

Accordingly, any supposed error related to Smith cannot be

a basis for upsetting the decision of the California Court of

Appeal.

2

Second, even if Smith did govern Jones’s right-to-silence

claim, that case does not remotely stand for the sweeping

propositions the majority attributes to it. Jones’s case is

nothing at all like Smith, and the state court’s refusal to

extend Smith to Jones’s situation is patently reasonable. In

short, even on its merits, Smith provides no basis on which to

grant relief in this case.

a

In Smith, at the outset of police questioning, the suspect

(Smith) stated that an unidentified woman told him to get an

attorney. 469 U.S. at 92. Shortly thereafter, when asked

whether he understood his right to have an attorney present,

Smith responded, “Uh, yeah. I’d like to do that.” Id. at 93.

Rather than stop so that Smith could contact an attorney, the

36 JONES V. HARRINGTON

officers continued to read his rights, and “then pressed him

again to answer their questions.” Id. After a somewhat

confused back-and-forth about his right to an attorney, Smith

ultimately agreed to speak without a lawyer present. Id. On

review before the Supreme Court, Smith argued that all

questioning should have ceased the moment he requested an

attorney the first time. The State countered that it was

unclear to the officers whether Smith actually wanted an

attorney given that he agreed to proceed without one after

further questioning.

The Supreme Court rejected the State’s argument, and

explained that once an unambiguous request for counsel has

been made, “an accused’s postrequest responses to further

interrogation may not be used to cast retrospective doubt on

the clarity of the initial request itself.” Id. at 100 (emphasis

omitted). This rule was needed to prevent officers from

“badgering or overreaching” to “wear down the accused and

persuade him to incriminate himself not withstanding his

earlier request for counsel’s assistance.” Id. at 98 (internal

quotation marks and alterations omitted). But questioning

need not end where the accused’s request “may be

characterized as ambiguous or equivocal as a result of events

preceding the request or of nuances inherent in the request

itself.” Id. at 99–100.

The rule of Smith is thus: once a suspect clearly invokes

his right to counsel, officers may not continue to question him

and use his answers to those questions to cast retrospective

doubt on the clarity of his initial invocation. That is,

ambiguity cannot be retroactively manufactured through the

suspect’s “postrequest responses to further interrogation.”

Id. at 100 (emphasis added). But Jones’s critical

statement—the utterance that the state court reasonably

JONES V. HARRINGTON 37

determined cast doubt on what Jones meant by “I don’t want

to talk no more”—was not a response to further

interrogation. Despite the majority’s many assertions to the

contrary, Maj. Op. at 4, 15, 21–23, the police did not ask

Jones a single question between his two statements. They did

not continue “interrogating” him at all. Indeed, Detective

Jolivette did not even get out a complete sentence—it is

anyone’s guess what that sentence was going to be—before

Jones cut him off to say, “You don’t want to hear what I’m

telling you.” Jolivette’s next comment was just to ask Jones

to speak louder because he was having trouble hearing him.

Jones then said, “I’m telling you all.” Only then—at which

point an officer quite reasonably may have been confused as

to whether Jones was seeking to remain silent—did

questioning continue. Jones never again hinted at a desire for

silence.

This is nothing at all like the situation in Smith, where

officers spoke to and questioned the suspect at length after he

requested an attorney. In Smith, the State contended that the

suspect’s earlier request was unclear based only on his

“responses to continued police questioning.” 469 U.S. at 97

(emphasis added). By contrast, the officers here asked Jones

nothing, they did not continue interrogating him, and they

certainly did not manufacture ambiguity by badgering Jones

or wearing him down. See id. at 98. Instead, Jones’s

statement was ambiguous immediately, as confirmed by

comments he made directly afterward. While those

comments came later in time (barely), they were not the

product of any “further interrogation” whatsoever. This

situation is patently—and certainly reasonably—

distinguishable from that in Smith.

38 JONES V. HARRINGTON

If the limitations of Smith were not already obvious on the

face of the Court’s analysis, the Court took additional care to

emphasize that its “decision [was] a narrow one.” Id. at 99.

That narrow decision did “not decide the circumstances in

which an accused’s request for counsel may be characterized

as ambiguous or equivocal as a result of events preceding the

request or of nuances inherent in the request itself.” Id. at

99–100. And Smith certainly does not preclude the California

courts from determining that Jones’s situation presents just

such a circumstance where the suspect’s “request itself” was

ambiguous. Even if on de novo review the majority would

reach a different result, the majority’s preferred interpretation

is certainly not “beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at 103.

b

The majority holds to the contrary only by misattributing

to Smith a sweeping rule that case in no way embraced. The

majority suggests that Smith’s prohibition against creating

ambiguity on the basis of “postrequest responses to further

interrogation” actually means that the police must disregard

anything the suspect happens to say at a moment in time after

he has arguably invoked his right to silence. See Maj. Op. at

4–5, 13–14. That is, even though context may render an

otherwise apparently clear statement ambiguous, the majority

concludes that such context can never be supplied by

something the suspect says after his supposed request for

silence.

The majority’s reading not only stretches Smith to its

breaking point, but it creates a rule that defies the basic logic

of human interaction and which would have sweeping

consequences for police officers. Consider, for example, a

JONES V. HARRINGTON 39

situation in which there is no interruption by a police officer

at all. Suppose that during an interrogation a suspect said,

“Man, I don’t even want to talk about this anymore.” Then,

after an uninterrupted pause, he continued, “This is so

frustrating. I’m answering all your questions, but you won’t

believe what I’m saying.” Must an officer plug his ears and

ignore the latter two sentences, merely because they came

after the first sentence? Of course not. Smith does not

compel such a result, and anyone who has ever held a

conversation would naturally reject it. Indeed, albeit in an

unpublished disposition, another panel of our court recently

held that Smith allows officers to take into account the totality

of just such a sequence. In United States v. Winsor, a suspect

stated, “I think I’d like an attorney,” which after a “couple

moments of silence,” he followed with, “Shouldn’t I have an

attorney here?” 549 F. App’x 630, 633 (9th Cir. 2013)

(mem.) (internal quotation marks omitted). Our court held

that the suspect’s two sentences—which the police did not

attempt to “engineer”—should be read together as a single

statement that, as a whole, was not an unambiguous request

for counsel. Id. Precedential or not, that decision certainly

reflects a reasonable interpretation of Smith, which, again, is

the low bar the State must clear.

And if Smith would allow an officer to consider two

separate but uninterrupted sentences together as a single

statement, we are left with a simple question: does Smith

mandate a different result merely because an officer manages

to eke out half a thought between the suspect’s two

sentences? As explained above, plainly not. Smith spoke of

“responses to further interrogation” and was concerned with

ambiguity manufactured through repeated questioning and

badgering. It says nothing for where, as here, an officer

40 JONES V. HARRINGTON

merely says something—but does not interrogate, question,

or badger—before the suspect continues talking.

The majority complains that such an interpretation of

Smith somehow obscures the “bright-line” prohibition against

continuing to interrogate a suspect after he has clearly

invoked his right to silence. See Maj. Op. at 19 n.2. The

majority claims that this interpretation would “create a gray

area about how much [continued] interrogation is

interrogation enough,” and would allow officers to continue

asking a suspect “some threshold number of questions.” Id.

Not so. I must emphasize once again: the police asked no

questions between Jones’s critical statements. The only

“threshold number of questions” needed to distinguish this

case from Smith is the simplest threshold of all: zero. If Jones

had been forced to respond to even a single question—that is,

if the police had continued to interrogate him at all—perhaps

that would raise more difficult considerations regarding the

precise limits of the rule set in Smith. Fortunately, in this

case we need to recognize only that what Smith prohibits is

“continued police questioning,” 469 U.S. at 97, and “further

interrogation,” id. at 100—neither of which happened here.

At best, the majority’s expansive rule represents an

extension of Smith to a situation not contemplated by the

Court in that case. Regardless how much the majority might

prefer such an extension, that is not cause for relief under

AEDPA. See White v. Woodall, 134 S. Ct. 1697, 1706 (2014)

(“[I]f a habeas court must extend a rationale before it can

apply to the facts at hand, then by definition the rationale was

not clearly established at the time of the state-court decision.”

(internal quotation marks omitted)). Fundamentally, the

question before us is not whether the majority’s expansive

reading of Smith is correct or incorrect; the only question we

JONES V. HARRINGTON 41

may consider is whether the state court could reasonably

interpret Smith more narrowly so as to distinguish it from the

situation before us. Quite obviously it could.2

B

Despite superficial attempts to do so, the majority cites no

case that bridges the analytical gaps left unfilled by Smith.

The majority asserts that Miranda v. Arizona itself clearly

established that the police could not take into account

anything Jones uttered after he said that he did not “want to

talk no more.” See Maj. Op. at 4, 14–15. Cherry-picking

quotations from Miranda, the majority argues that because

Jones indicated “in any manner” that he wished for silence,

the police were required to stop speaking to him. See Maj.

Op. at 14–15, 23 (quoting Miranda, 384 U.S. at 473–74).

2

Further, given the limitations of the record before us, I fail to see how

we could possibly conclude that it is unreasonable to characterize Jones’s

comments as one continuous statement. We do not have the benefit of an

audio recording, and thus we are left to guess just how rapid the exchange

between Jones and Jolivette was. As the author of today’s opinion

suggested at oral argument, one quite reasonable interpretation of our

limited record is that Jones and Jolivette spoke so quickly that they were

“stepping on each other’s lines.” That is, perhaps the exchange was so

rapid that Jones’s two statements came out “as almost one sentence that

has a little interruption in there.”

Of course, the transcript could be read in a way to make this a more

difficult case for the government—for example if we infer a dramatic

pause between when Jones and Jolivette spoke. But, once again, under

AEDPA we are not asked to determine what the best reading of the record

is (and certainly not what reading is most favorable to Jones). We are

tasked only with determining whether the state court’s view of the

exchange was reasonable. It was.

42 JONES V. HARRINGTON

But, despite the majority’s selective quotations, it is

decidedly not the law that police must cease speaking—or

even questioning—once a suspect indicates that he wishes for

silence “in any manner.” Rather, the manner in which the

suspect requests silence must be unambiguous; an

“ambiguous or equivocal” request will not do. Thompkins,

560 U.S. at 381–82. Thus, at least as subsequently clarified

by the Supreme Court, Miranda would better be described to

hold that questioning must stop whenever a suspect requests

silence “in any [unambiguous] manner.” Despite its best

efforts not to,3 the majority concedes as much. See Maj. Op.

3

The majority at times seems to suggest that our analysis should ignore

the Supreme Court’s holding in Thompkins that a suspect’s request for

silence must be unambiguous. See Maj. Op. at 20–21, 21–22 n.3. The

majority argues that, if AEDPA prevents Jones from basing his claim on

anything the Court wrote in Thompkins, see supra Part III.A.1, then the

government must likewise ignore any aspect of Thompkins that confirms

the correctness of the state court’s decision. See Maj. Op. at 21–22 n.3.

But we have every reason to treat the parties differently in this respect,

and the majority’s argument to the contrary would turn AEDPA on its

head.

AEDPA prohibits us from granting relief unless the state court

unreasonably applied federal law as clearly established at the time the

state court acted. See Greene, 132 S. Ct. at 44–45. Thus, Jones cannot

receive relief based on anything in Thompkins, because Thompkins came

after the state court’s decision in this case. See supra Part III.A.1. The

government, on the other hand, is asked only to show that the state court’s

decision was reasonable. To do that, the government has no need to rely

on Thompkins at all. Before Thompkins, we had held that it was at least

reasonable for a court to conclude that a request for silence must be

unambiguous, even if the Supreme Court had not clearly established as

much. See DeWeaver v. Runnels, 556 F.3d 995, 1001–02 (9th Cir. 2009).

Thus, in many ways, Thompkins is beside the point for the government in

this case.

JONES V. HARRINGTON 43

at 19 n.2 (“[Miranda and Smith] stand for the simple

proposition that officers must stop questioning a suspect once

he unambiguously invokes his right to silence . . . .”

(emphasis added)). But that simply returns us to the same

question we started with: what does it mean for a statement

to be unambiguous, and what sort of factual context may an

officer consider when interpreting the clarity of a statement?

On these questions, Miranda provides no guidance at all.

Completely beside the point, the majority makes much of

the Supreme Court’s commands in Miranda and in Michigan

v. Mosley that a valid request for silence must be

But, even if reference to Thompkins is not necessary to conclude that

the state court’s decision was reasonable, we may of course cite

Thompkins to underscore that conclusion. It would be the very antithesis

of deference for us to ignore the fact that state court’s conclusion about

ambiguity was later held by the Supreme Court to be correct. Given the

standard of review erected by AEDPA, there is no contradiction in

allowing the government to rely on a case even when Jones may not. Cf.

Lockhart v. Fretwell, 506 U.S. 364, 372–73 (1993) (state may take benefit

of new rules on collateral review even though petitioner may not).

Finally, I must observe that the majority and I have referenced

Thompkins for two very different reasons. I cite Thompkins merely to

confirm that the state court was right to conclude that Jones’s request for

silence needed to be unambiguous. The majority, however, seeks to use

Thompkins to sustain its otherwise unsupportable assertion that the state

court was compelled to follow all of the Supreme Court’s prior cases

discussing ambiguity in the right-to-counsel context. See Maj. Op. at

21–22 n.3. Again, before Thompkins, the Supreme Court had never held

that right-to-silence invocations are governed by the same standards as

right-to-counsel invocations. Even if the state court determined that both

invocations need to be “unambiguous,” it was by no means compelled also

to conclude that the standards governing ambiguity must be the same in

both contexts. As the majority itself points out, Maj. Op. at 16–17, there

could reasonably be different standards that govern each right (even if that

argument is now foreclosed by Thompkins).

44 JONES V. HARRINGTON

“scrupulously honored.” See Maj. Op. at 15, 23. It is true

that Miranda and Mosley state unequivocally that police

questioning must cease once the right to silence is invoked.

But that command simply instructs officers how to behave

once the right to silence has been unambiguously invoked.

This case is about whether the right was ever unambiguously

invoked, or more accurately, whether the state court

reasonably determined that any invocation was ambiguous in

context. Neither Miranda nor Mosley speak to that question.4

Finally, the majority reverts to what is becoming an old

habit of our court: citing federal circuit court cases to help

bolster an attempt to extend Supreme Court precedent under

federal habeas review. See Maj. Op. at 15, 20, 22–23, 25

(citing Garcia, 808 F.3d at 771; Anderson, 516 F.3d at 781;

United States v. Lafferty, 503 F.3d 293 (3d Cir. 2007)). This

we plainly cannot do. See Glebe v. Frost, 135 S. Ct. 429, 431

(2014) (per curiam); Lopez v. Smith, 135 S. Ct. 1, 4 (2014)

(per curiam); Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51

(2013) (per curiam). And even more, just like the majority’s

chosen Supreme Court cases, none of the Court of Appeals

cases cited by the majority actually holds that a court can

never infer ambiguity on the basis of statements made after a

4

In the same vein, the majority discusses standards for evaluating a

claim of waiver after the right to counsel has been invoked, as developed

by the Supreme Court in cases such as Edwards v. Arizona, 451 U.S. 477

(1981). See Maj. Op. at 16–17. Again, the case before us is strictly about

whether Jones ever invoked his right to silence unambiguously; it has

nothing to do with how we determine waiver after such an invocation has

occurred.

JONES V. HARRINGTON 45

supposedly clear request for silence.5 Even if these cases

were relevant under AEDPA review, they would not get the

majority to its preferred destination.

In sum, the majority’s rejection of the factual context

provided by Jones’s complete statements stems from an

overly broad reading of Smith that is unsupported by

reference to Miranda, Mosley, or any other case cited in the

majority’s opinion. Under AEDPA, the State court cannot be

faulted for failing to anticipate the majority’s de novo

extension of the law.

IV

In this case, the California Court of Appeal: (1) identified

the correct legal rule applicable to Jones’s right-to-silence

claim, (2) reasonably interpreted the facts underlying Jones’s

claim, and (3) reasonably applied that legal rule to those facts

in rejecting the claim. The majority does not identify a single

case—let alone a relevant Supreme Court case—that holds

to the contrary or that even contemplates the situation in

which Jones’s claim arose. Instead, the majority essentially

concludes that Supreme Court precedent ought to extend

farther than it currently does, and—as has unfortunately

5

Of the Court of Appeals cases, the majority relies most heavily on our

en banc decision in Anderson v. Terhune, a case inapposite on its facts.

There, officers ignored a suspect’s “clear and repeated invocations of his

right to remain silent” by feigning not to understand what he meant. See

516 F.3d at 785–86. Under AEDPA, we held that Miranda does not allow

officers to “manufacture[] [ambiguity] by straining to raise a question

regarding the intended scope of a facially unambiguous invocation of the

right to silence.” Id. at 787. This case says nothing for how a court must

interpret a one-time statement rendered ambiguous nearly immediately

afterward—and before police officers can even complete another sentence.

46 JONES V. HARRINGTON

become routine for our court—chastises the state court for

failing to predict and to adhere to the majority’s preferred

view of the law.

Because AEDPA prohibits federal courts from doing

exactly that, I respectfully dissent.