Wade Robertson v. Rise Pichon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WADE ROBERTSON, No. 15-16463

Petitioner-Appellant,

D.C. No.

v. 5:10-cv-05027-EJD

RISE JONES PICHON, Judge of

Santa Clara Superior Court; OPINION

ATTORNEY GENERAL OF THE

STATE OF CALIFORNIA,

Respondents-Appellees.

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted October 18, 2016

San Francisco, California

Filed March 2, 2017

Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Chief Judge Thomas

2 ROBERTSON V. PICHON

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of Wade

Robertson’s habeas corpus petition challenging his California

state conviction for driving under the influence of alcohol and

possession of a billy club.

Robertson contends that he was under arrest at the time a

police officer asked him to take a chemical test, that he was

therefore in custody at the time he unambiguously invoked

his right to counsel, and that the state court’s failure to

suppress his statements regarding the billy club during

subsequent questioning violated his Fifth Amendment rights

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

v. Arizona, 451 U.S. 477 (1981).

The panel held that because the Supreme Court has not

addressed whether a defendant’s request for counsel in

response to a request to submit to a chemical test constitutes

an invocation of his Miranda rights for purposes of any future

custodial interrogations, the state court’s ruling that the

admission of Robertson’s statements did not violate Miranda

and Edwards is not objectively unreasonable.

Chief Judge Thomas concurred. He agreed that the

district court should be affirmed given the AEDPA standard

of review, but wrote that if the appeal were on direct review,

one might reach a different conclusion.

*

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

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

ROBERTSON V. PICHON 3

COUNSEL

Marc J. Zilversmit (argued), San Francisco, California, for

Petitioner-Appellant.

Jill M. Thayer (argued), Deputy Attorney General; Peggy S.

Ruffra, Supervising Deputy Attorney General; Jeffrey M.

Laurence, Senior Assistant Attorney General; Office of

the Attorney General, San Francisco, California; for

Respondents-Appellees.

4 ROBERTSON V. PICHON

OPINION

IKUTA, Circuit Judge:

Wade Robertson was found guilty by a California state

jury of driving under the influence of alcohol and possession

of a billy club and was sentenced to 12 days in jail and three

years on probation. Robertson appeals the district court’s

denial of his petition for a writ of habeas corpus.1 We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm.

I

The evening of April 27, 2006, Wade Robertson, was

celebrating with four others at Nola’s Restaurant in Palo Alto,

California. The group ordered 24 shots of liquor and six

mixed drinks over the course of four hours. In addition,

Robertson paid for a separate round of drinks with a $100

bill, and according to the waitress, told her to keep the

change.

Shortly after midnight, Robertson complained to the

manager on duty, Shiraz Qadri, that the waitress had failed to

return the change for the $100 bill. In order to avoid

problems, Qadri reduced Robertson’s credit card bill by $90.

Qadri testified that throughout this interaction, Robertson

1

We have jurisdiction over Robertson’s appeal because he filed his

petition while he was on probation. Probationary status qualifies as being

“in custody” for jurisdictional purposes, and a petitioner’s “subsequent

release from custody does not deprive the court of its jurisdiction.”

Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Further, because

Robertson is presumed to experience collateral consequences as a result

of his convictions, the case is not moot. See id.

ROBERTSON V. PICHON 5

appeared intoxicated, with “dilated eyes, red face, red eyes”

and with alcohol on his breath. Qadri offered to call

Robertson’s group a cab. Robertson declined.

After Robertson left the restaurant, Qadri saw him walk

over to a white pickup truck. Agent Dan Ryan, a Palo Alto

police officer on patrol that evening, also saw Robertson

standing outside a parked pickup truck on the street near the

restaurant. As Robertson prepared to take off in the truck,

Qadri flagged down Agent Ryan and told him, “Hey, those

guys told me they were going to take a cab and they have

been drinking pretty heavily.”

Not long afterward, Agent Ryan saw the white truck make

an illegal left turn a few blocks away from the restaurant,

cutting off another vehicle. Agent Ryan followed the truck,

caught up to it when the driver pulled into a gas station, and

initiated a traffic stop. Robertson quickly exited the truck and

began walking towards the patrol vehicle. Once Robertson

got out of the truck, Agent Ryan recognized him from the

prior encounter. Agent Ryan recalled that Robertson “had an

odor of an alcoholic beverage on his breath.” According to

Agent Ryan, Robertson loudly and aggressively asked him

why he had been stopped, and denied that he had been

drinking. When Agent Ryan pointed out the smell of alcohol

on his breath, Robertson called him a liar.

At that point two additional officers, David Guy and Cole

Ghilarducci, arrived at the scene, and observed Agent Ryan

administering a series of field sobriety tests. Robertson

6 ROBERTSON V. PICHON

performed poorly: the nystagmus gaze test2 indicated the

presence of blood alcohol, and he displayed poor

coordination and balance. Based on the field sobriety tests

and Robertson’s demeanor, Agent Ryan concluded that

Robertson had been driving under the influence of alcohol.

Officer Guy testified that he reached the same conclusion,

and that it was not a close call. When Officer Guy looked

into the white truck, he saw a billy club lying between the

driver and passenger seats. He collected the billy club for

evidence.

Agent Ryan arrested Robertson and took him to the police

department’s booking area. When Agent Ryan asked

Robertson to take a breath test, he refused. He also refused

to take a blood test. At that point, Agent Ryan gave

Robertson a form issued by the California Department of

Motor Vehicles, which provided the following information,

among other things:

1. You are required by state law to submit to

a chemical test to determine the alcohol

and/or drug content of your blood.

2. a. Because I believe you are under the

influence of alcohol, you have a choice of

taking a breath or blood test. . . .

2

According to the testimony, when administering a nystagmus gaze

test, an officer asks a person to track a finger or a pen using only his eyes,

without moving his head. Nystagmus is present when the iris of the eye

has a jerky or skipping movement as it moves left and right and suggests,

in most individuals, the presence of alcohol in the bloodstream.

ROBERTSON V. PICHON 7

4. Refusal or failure to complete a test may be

used against you in court. Refusal or failure to

complete a test will also result in a fine and

imprisonment if this arrest results in a

conviction of driving under the influence.

5. You do not have the right to talk to an

attorney or have an attorney present before

stating whether you will submit to a test,

before deciding which test to take, or during

the test. . . .

After Robertson read the form, he told Agent Ryan that he

wanted to speak with his attorney before submitting to any

chemical test. Pointing to section 5 of the form (which

actually stated he did not have the right to an attorney),

Robertson said “See, I have the right to an attorney right here,

and I want my attorney.” Agent Ryan tried to correct this

misreading of section 5, but when Agent Ryan asked

Robertson again to take a breath test, Robertson replied,

“Absolutely not,” and in response to the request to take a

blood test, Robertson replied, “No, I will not take a blood

test.”

At some point during the booking process, Agent Ryan

gave Robertson Miranda warnings. After reading Robertson

his rights, Agent Ryan asked Robertson if the billy club that

Officer Guy found in Robertson’s truck belonged to him.

Robertson said, “[Y]es, it belonged in the truck.” He then

asked “if it was a misdemeanor to possess that in California?”

Agent Ryan told him it “could be charged either as a

misdemeanor or a felony,” and gave Robertson a copy of the

California Penal Code so he could read the law for himself.

Agent Ryan also administered a second series of field

8 ROBERTSON V. PICHON

sobriety tests in the booking area. These tests, which were

recorded on videotape, showed that Robertson again

performed poorly.

Robertson was subsequently charged with two criminal

counts. First, he was charged with misdemeanor driving

under the influence of alcohol in violation of section 23152(a)

of the California Vehicle Code,3 along with an enhancement

for refusing to submit to a chemical test as provided under

section 23577 of the Vehicle Code (referred to here as a

“refusal enhancement”).4 Second, he was charged with

3

At the time of the offense, section 23152(a) of the California

Vehicle Code provided:

(a) It is unlawful for any person who is under the

influence of any alcoholic beverage or drug, or under

the combined influence of any alcoholic beverage and

drug, to drive a vehicle.

4

Section 23577 of the California Vehicle Code imposes various

penalties on any person convicted of a violation of Section 23152 or

23153 if “at the time of the arrest leading to that conviction that person

willfully refused a peace officer’s request to submit to, or willfully failed

to complete, the chemical test or tests pursuant to Section 23612.”

In turn, section 23612 of the California Vehicle Code provides, in

pertinent part:

(a)(1)(A) A person who drives a motor vehicle is

deemed to have given his or her consent to chemical

testing of his or her blood or breath for the purpose of

determining the alcoholic content of his or her blood, if

lawfully arrested for an offense allegedly committed in

violation of Section 23140, 23152, or 23153. If a blood

or breath test, or both, are unavailable, then paragraph

(2) of subdivision (d) applies. . . .

ROBERTSON V. PICHON 9

misdemeanor possession of a billy club in violation of section

12020(a)(1) of the California Penal Code.5

Robertson filed a pretrial motion to suppress evidence

obtained during the traffic stop. Robertson argued that Agent

Ryan had not been directly behind Robertson’s truck. From

this fact, Robertson argued, it could be inferred that Agent

Ryan had not observed the illegal left turn and therefore, the

traffic stop was unlawful. To support this theory, two expert

witnesses testified that bank surveillance photographs of the

intersection where Robertson made the illegal left turn

showed that Agent Ryan’s police car was not immediately

behind Robertson’s truck. Robertson also called two

eyewitnesses to testify that Agent Ryan’s police car was not

behind his truck. The trial court denied the motion to

suppress. It stated that it did not credit the testimony of the

eyewitnesses, but did credit Agent Ryan’s testimony that he

personally observed Robertson’s illegal left turn.

(C) The testing shall be incidental to a lawful arrest and

administered at the direction of a peace officer having

reasonable cause to believe the person was driving a

motor vehicle in violation of Section 23140, 23152, or

23153.

5

At the time of the offense, section 12020(a)(1) of the California

Penal Code provided, in pertinent part:

(a) Any person in this state who does any of the

following is punishable by imprisonment in a county

jail not exceeding one year or in the state prison:

(1) Manufactures or causes to be manufactured, imports

into the state, keeps for sale, or offers or exposes for

sale, or who gives, lends, or possesses any . . .

instrument or weapon of the kind commonly known as

a blackjack, slungshot, billy, sandclub, sap, or sandbag.

10 ROBERTSON V. PICHON

Robertson subsequently filed a motion in limine to admit

into evidence the bank surveillance photographs and related

expert testimony at trial. The trial court denied the motion,

stating that the legality of the traffic stop had already been

fully litigated, but that it would allow Robertson to renew his

motion at trial to use the evidence to challenge Agent Ryan’s

credibility.

At trial, Agent Ryan testified regarding the traffic stop,

the field sobriety tests conducted at the scene, and the events

in the booking area in the police department. He also testified

that the billy club was similar to batons used by the Palo Alto

police department. Robertson’s trial counsel did not object to

the admission of these statements.

For the defense, Robertson’s counsel introduced

eyewitness testimony that Robertson had not been drinking

the night of April 27 and that he was not drunk when he left

the restaurant. A field sobriety expert testified that Agent

Ryan had improperly administered several of the field

sobriety tests. Robertson contended that the smell of his

breath was attributable to hypoglycemia. A licensed private

investigator testified that the billy club had nonviolent uses

such as checking tire pressure and serving as a handle for a

tire jack. Robertson attempted again to introduce the bank

surveillance photos to impeach Agent Ryan’s credibility, but

the court did not permit it, on the ground “that the probative

value is substantially outweighed by the undue consumption

of time.”

At the close of evidence, Robertson moved for a judgment

of acquittal on the charge of possessing a billy club in

violation of section 12020(a)(1) on the ground that the

evidence was insufficient to establish that Robertson knew

ROBERTSON V. PICHON 11

that the billy club was a weapon or could be used as a

weapon. The trial court denied the motion, holding that the

evidence that Robertson had asked Agent Ryan whether

possession of the billy club was a misdemeanor showed that

Robertson knew the billy club was a weapon.

In closing argument, the prosecutor criticized Robertson’s

theory of the case, arguing:

Ladies and gentlemen, to find reasonable

doubt in this case you got to believe Shiraz

Qadri lied about a complete stranger; Agent

Ryan lied about a complete stranger that

night; Officer Guy lied about a complete

stranger that night; that defendant just can’t

follow instructions, that he just has horrible

balance, despite being a wrestler which

requires great balance. He lies about alcohol

for absolutely no reason. He had some good

reason not to blow besides guilt, and he was

willing to take the consequences for some

reason besides being guilty.

The trial court then charged the jury. With respect to the

refusal enhancement under section 23577 of the California

Vehicle Code, the court provided the following instruction:

If you find the defendant guilty of driving

under the influence of alcohol, you must then

decide whether the People have proved the

additional allegation that the defendant

willfully refused to submit to a chemical test

to determine blood alcohol content.

12 ROBERTSON V. PICHON

To prove this allegation the People must

prove that:

1. A peace officer asked the defendant to

submit to a chemical test to determine

blood alcohol content;

2. The peace officer fully advised the

defendant of the requirement to submit to

a test and the consequences of not

submitting to a test;

AND

3. The defendant willfully refused to

submit to a test.

The court did not instruct the jury that it was required to find

that Robertson had been lawfully arrested.

The jury found Robertson guilty of driving under the

influence and of willfully refusing to submit to a chemical

test to determine blood alcohol content. It also convicted

Robertson of possession of a billy club. Robertson brought

a motion for a new trial, alleging (among other arguments)

that the admission of his statement that he knew the billy club

was in the truck, and his question whether possession was

illegal, violated his rights under Miranda v. Arizona, 384 U.S.

436 (1966). The trial court denied the motion.

On appeal to the Appellate Division of the Santa Clara

County Superior Court, Robertson argued that once he

invoked his right to counsel, Agent Ryan’s continued

questioning violated his rights under Edwards v. Arizona,

ROBERTSON V. PICHON 13

451 U.S. 477 (1981), and therefore Robertson’s statements

about the billy club were inadmissible. The Appellate

Division rejected this argument, saying only “Appellant’s

statements did not violate Miranda.”6 The California Court

of Appeal summarily denied Robertson’s request to consider

this and other claims, and the California Supreme Court

summarily denied his petition for a writ of state habeas

corpus.

Robertson filed a petition for a writ of habeas corpus in

federal district court in November 2010. The district court

denied the petition, but granted a certificate of appealability

limited to Robertson’s claim that the trial court’s admission

of his statements regarding the billy club violated Edwards.

II

“We review de novo the district court’s denial of a § 2254

habeas petition.” Murdoch v. Castro, 609 F.3d 983, 989 (9th

Cir. 2010) (en banc) (plurality opinion). Under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), a petition for habeas corpus pending before a

federal court “shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim” resulted in a decision

that either “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable

6

The Appellate Division also denied Robertson’s subsequent

application to certify the case for decision by the California Court of

Appeal.

14 ROBERTSON V. PICHON

determination of the facts in light of the evidence presented

in the State court proceeding,” id. § 2254(d)(2).

“The starting point for cases subject to § 2254(d)(1) is to

identify the ‘clearly established Federal law, as determined by

the Supreme Court of the United States.’” Marshall v.

Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting

28 U.S.C. § 2254(d)(1)). Clearly established federal law is

limited to “the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions,” Woods v. Donald, 135 S. Ct.

1372, 1376 (2015) (per curiam) (quoting White v. Woodall,

134 S. Ct. 1697, 1702 (2014)), and “[c]ircuit precedent

cannot ‘refine or sharpen a general principle of Supreme

Court jurisprudence into a specific legal rule that [the

Supreme Court] has not announced,’” Lopez v. Smith, 135 S.

Ct. 1, 4 (2014) (per curiam) (quoting Marshall, 133 S. Ct. at

1450). “[W]hen a Supreme Court decision does not ‘squarely

address[] the issue in th[e] case’ or establish a legal principle

that ‘clearly extend[s]’ to a new context to the extent required

by the Supreme Court in these recent decisions, it cannot be

said, under AEDPA, there is ‘clearly established’ Supreme

Court precedent addressing the issue before us, and so we

must defer to the state court’s decision.” Moses v. Payne,

555 F.3d 742, 754 (9th Cir. 2009) (second, third, and fourth

alterations in original) (citation omitted) (quoting Wright v.

Van Patten, 552 U.S. 120, 125 (2008)). Said otherwise,

“when a state court may draw a principled distinction

between the case before it and Supreme Court caselaw, the

law is not clearly established for the state-court case.”

Murdoch, 609 F.3d at 991.

Where there is clearly established Supreme Court

precedent on point, we may not hold a state court’s

application of that precedent to be unreasonable unless it is

ROBERTSON V. PICHON 15

“‘objectively unreasonable,’ not merely wrong; even ‘clear

error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting

Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “[A]

federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

state-court decision applied [the law] incorrectly.” Woodford

v. Visciotti, 537 U.S. 19, 24–25 (2002) (per curiam). “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.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Said

otherwise, “a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.” Woodall, 134 S. Ct. at 1702

(quoting Richter, 562 U.S. at 103). “AEDPA’s requirements

reflect a ‘presumption that state courts know and follow the

law,’” Donald, 135 S. Ct. at 1376 (quoting Visciotti, 537 U.S.

at 24), and its “highly deferential standard for evaluating

state-court rulings . . . demands that state-court decisions be

given the benefit of the doubt,” Cullen v. Pinholster, 563 U.S.

170, 181 (2011) (quoting Visciotti, 537 U.S. at 24).

III

On appeal, Robertson claims that the state trial court’s

failure to suppress his statements regarding the billy club

after Robertson stated “I want my attorney” violated his Fifth

Amendment rights under the principles set forth in Edwards,

451 U.S. 477. Robertson contends that he was under arrest at

the time Agent Ryan asked him to take a chemical test and

was therefore in custody at the time he unambiguously

16 ROBERTSON V. PICHON

invoked his right to counsel. Accordingly, Robertson argues,

Agent Ryan’s subsequent questioning before counsel was

made available was directly contrary to Edwards, and

accordingly, the Appellate Division’s rejection of this claim

was an unreasonable application of Edwards.

A

To evaluate this claim, we begin with a review of

Edwards and other relevant Supreme Court precedent.

In Edwards, a defendant was arrested for robbery,

burglary, and first-degree murder, and was informed of his

rights at the police station as required by Miranda. 451 U.S.

at 478. After some preliminary negotiations with the police

about a plea bargain, the defendant said, “I want an attorney

before making a deal.” Id. at 479. The police stopped

questioning the defendant, but renewed interrogation the next

day. Id. In response to this interrogation, the defendant

ultimately confessed. Id. The state courts refused to suppress

his confession. Id. at 480.

The Supreme Court reversed. Id. As Edwards explained,

Miranda “determined that the Fifth and Fourteenth

Amendments’ prohibition against compelled self-

incrimination required that custodial interrogation be

preceded by advice to the putative defendant that he has the

right to remain silent and also the right to the presence of an

attorney.” 451 U.S. at 481–82 (citing Miranda, 384 U.S. at

479). Edwards concluded that “additional safeguards are

necessary when the accused asks for counsel.” Id. at 484.

Therefore, Edwards adopted the prophylactic rule “that when

an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right

ROBERTSON V. PICHON 17

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. When “an accused . . .

having expressed his desire to deal with the police only

through counsel,” he “is not subject to further interrogation

by the authorities until counsel has been made available to

him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.”

Id. at 484–85. Because the defendant in Edwards had

invoked his Fifth Amendment right to counsel under

Miranda, and that right had been infringed by the police

returning to ask him more questions, the Court held that “the

fruits of the interrogation initiated by the police” could not be

used against him. Id. at 485.

The Supreme Court has indicated that there are limits on

a defendant’s rights under Miranda and Edwards. First, “the

special procedural safeguards outlined in Miranda are

required not where a suspect is simply taken into custody, but

rather where a suspect is subjected to interrogation,” Rhode

Island v. Innis, 446 U.S. 291, 300 (1980), and Edwards

reiterated that “[t]he Fifth Amendment right identified in

Miranda is the right to have counsel present at any custodial

interrogation,” 451 U.S. at 485–86. “Absent such

interrogation, there would have been no infringement of the

right.” Id. Accordingly, any statements sought to be

suppressed must have been the product of interrogation.

The term “interrogation” has a specific meaning in this

context. The Court has clarified that not “all statements

obtained by the police after a person has been taken into

custody are to be considered the product of interrogation.”

Innis, 446 U.S. at 299. Rather, “Miranda safeguards come

into play whenever a person in custody is subjected to either

18 ROBERTSON V. PICHON

express questioning or its functional equivalent.” Id. at

300–01. “‘[I]nterrogation,’ as conceptualized in the Miranda

opinion, must reflect a measure of compulsion above and

beyond that inherent in custody itself.” Id. at 300.

The Supreme Court has previously explained how

Miranda and Edwards apply to police requests that a

suspected drunk driver submit to chemical testing. In South

Dakota v. Neville, police stopped a suspected drunk driver,

who refused to take a blood-alcohol test. 459 U.S. 553, 555

(1983). The defendant “sought to suppress all evidence of his

refusal to take the blood-alcohol test,” and the state court

granted the suppression motion. Id. at 556. The Supreme

Court reversed, holding that Edwards’s prophylactic rule was

not implicated under these circumstances because “[i]n the

context of an arrest for driving while intoxicated, a police

inquiry of whether the suspect will take a blood-alcohol test

is not an interrogation within the meaning of Miranda.” Id.

at 564 n.15; see also Pennsylvania v. Muniz, 496 U.S. 582,

604 (1990) (holding that a defendant’s incriminating

utterances during the administration of three physical sobriety

tests and a breath test for blood-alcohol content at the police

station were not in response to custodial interrogation, and

that therefore the absence of Miranda warnings did not

require suppression of the statements at trial).7

The Court has noted a second limitation of Edwards’s

prophylactic rule. McNeil v. Wisconsin held that a

7

In Birchfield v. North Dakota, the Supreme Court held that “a breath

test, but not a blood test, may be administered as a search incident to a

lawful arrest for drunk driving.” 136 S. Ct. 2160, 2185 (2016). Because

Robertson refused to submit to a breath test and refused to submit to a

blood test, Birchfield does not affect our analysis.

ROBERTSON V. PICHON 19

defendant’s invocation of the Sixth Amendment right to

counsel at his initial appearance before a court was specific

to the type of legal assistance required and to the specific

crime for which the defendant had invoked the right to

counsel. 501 U.S. 171, 178 (1991). The invocation of a Sixth

Amendment right as to one crime did not count as an

invocation of the Miranda-Edwards right to respond to

custodial interrogation only through counsel with respect to

a different crime. Id. Rather, Edwards “applies only when

the suspect ha[s] expressed his wish for the particular sort of

lawyerly assistance that is the subject of Miranda,” meaning

that the defendant must make “some statement that can

reasonably be construed to be an expression of a desire for

the assistance of an attorney in dealing with custodial

interrogation by the police.” Id. (quoting Edwards, 451 U.S.

at 484) (internal quotation marks and emphasis omitted). The

Court rejected the argument that a defendant could get around

the rule that the right to counsel is specific to the

circumstances by invoking Miranda and Edwards at a pretrial

hearing, stating that “we have . . . never held that a person can

invoke his Miranda rights anticipatorily, in a context other

than ‘custodial interrogation.’” McNeil, 501 U.S. at 182 n.3.

In other words, “[t]he fact that we have allowed the Miranda

right to counsel, once asserted, to be effective with respect to

future custodial interrogation does not necessarily mean that

we will allow it to be asserted initially outside the context of

custodial interrogation, with similar future effect.” Id.

In Bobby v. Dixon, the Supreme Court considered

McNeil’s limitation on the Edwards rule in the habeas

20 ROBERTSON V. PICHON

context. 132 S. Ct. 26, 29 (2011) (per curiam).8 In Dixon, the

defendant had a “chance encounter” with the police at the

local police station, and refused to answer questions about a

crime without his lawyer present. Id. at 28. After being

arrested, interrogated, and released, the defendant returned to

the police station and stated that he talked to his attorney, and

wanted to confess. Id. The state court allowed the murder

confession to be admitted into evidence, but the Sixth Circuit

granted the defendant’s federal habeas petition on the basis

that the state court’s admission of his confession was an

unreasonable application of Miranda. Id. at 29. The

Supreme Court reversed, holding that the Sixth Circuit was

“plainly wrong” in holding that Miranda clearly established

that the defendant’s initial refusal to talk to the police without

a lawyer required the suppression of the subsequent

confession. Id. The Court noted that the defendant “was not

in custody during his chance encounter with police,” and “this

Court has ‘never held that a person can invoke his Miranda

rights anticipatorily, in a context other than custodial

interrogation.’” Id. (quoting McNeil, 501 U.S. at 171 n.3).

Reading these cases together, the Supreme Court has

made clear that a defendant has a Fifth Amendment right to

have counsel present at any custodial interrogation, and once

the defendant has invoked this right, the defendant “is not

subject to further interrogation by the authorities until counsel

has been made available to him, unless the accused himself

8

Although “[s]tate-court decisions are measured against [the

Supreme] Court’s precedents as of ‘the time the state court renders its

decision,’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (quoting

Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)), we are bound by the

Supreme Court’s AEDPA decisions regardless when the opinion was

issued.

ROBERTSON V. PICHON 21

initiates further communication, exchanges, or conversations

with the police.” Edwards, 451 U.S. at 484–85. But if a

defendant is not in the context of custodial interrogation —

such as when a suspected drunk driver is asked by police to

submit to chemical testing — the safeguards of Miranda and

Edwards are inapplicable. This limitation of Edwards’s

prophylactic rule applies even if the defendant had previously

invoked Miranda and Edwards before being placed in a

custodial interrogation context.

B

In light of this analysis of the Supreme Court’s clearly

established precedent, we must determine whether, under

AEDPA’s deferential standard, the Appellate Division was

objectively unreasonable in determining that Robertson was

not entitled to the safeguards of Miranda and Edwards. We

conclude that the state court could have made a principled

distinction of these cases on two grounds.

First, although Robertson was under arrest and in custody

at the booking station, a state court could have reasonably

concluded that Agent Ryan’s request that Robertson submit

to chemical testing did not constitute custodial interrogation,

because such a request “[i]n the context of an arrest for

driving while intoxicated” does not constitute “an

interrogation within the meaning of Miranda.” Neville,

459 U.S. at 564 n.15; see also Muniz, 496 U.S. at 604.

Accordingly, a state court could reasonably conclude that

Robertson’s statement “I want my attorney” was an attempt

to “invoke his Miranda rights anticipatorily, in a context

other than ‘custodial interrogation.’” McNeil, 501 U.S. at 182

n.3. Because the Supreme Court has stated that it has never

answered the question whether a defendant can make such an

22 ROBERTSON V. PICHON

anticipatory invocation, a state court’s conclusion that

Robertson’s anticipatory invocation of his right to counsel did

not trigger any rights under Edwards could not be an

unreasonable application of Supreme Court precedent. See

Donald, 135 S. Ct. at 1376.

Second, even though a police officer could infer that

Robertson’s statement that he would not submit to chemical

testing without a lawyer meant that Robertson also wanted a

lawyer for subsequent questioning, McNeil tells us that “the

likelihood that a suspect would wish counsel to be present is

not the test for applicability of Edwards,” 501 U.S. at 178

(emphasis omitted). Rather, the defendant must express “his

wish for the particular sort of lawyerly assistance that is the

subject of Miranda,” namely, “an expression of a desire for

the assistance of an attorney in dealing with custodial

interrogation by the police.” Id. A state court could

reasonably conclude that Robertson’s invocation of the right

to counsel in the context of responding to a request to submit

to chemical testing, did not express his desire for the

assistance of counsel in dealing with custodial interrogation.

Under AEDPA, we must defer to such a determination. See

Dixon, 132 S. Ct. at 29 (2011).

Robertson argues that such a conclusion is squarely

precluded by our decision in Sessoms v. Grounds, 776 F.3d

615 (9th Cir. 2015) (en banc). In Sessoms, a defendant in

police custody was interrogated by two police officers. Id. at

617. After the exchange of a few inconsequential remarks,

the defendant stated: “There wouldn’t be any possible way

that I could have a — a lawyer present while we do this? . . .

Yeah, that’s what my dad asked me to ask you guys . . . uh,

give me a lawyer.” Id. at 617–18 (second alteration in

original). Instead of treating this statement as the invocation

ROBERTSON V. PICHON 23

of a right to counsel, the police told the defendant that having

a lawyer “would only hurt him,” and then read him his

Miranda rights. Id. at 619. The defendant waived his

Miranda rights and confessed to the crime. Id. The state

court rejected the defendant’s claim that police had violated

his Miranda rights on the ground that the defendant’s

statements were ambiguous, and therefore it was “not

‘sufficiently clear[ ] that a reasonable police officer in the

circumstances would understand the statement to be a request

for an attorney.’” Id. at 620 (alteration in original) (quoting

People v. Sessoms, No. C041139, 2004 WL 49720, at *3

(Cal. Ct. App. Jan. 12, 2004)). Accordingly, the state court

denied the defendant’s suppression motion. Sessoms rejected

this reasoning. It concluded that the case “involves a

custodial interrogation in which the defendant should have

been informed of his rights before he could knowingly waive

them,” id. at 621, that the defendant’s request for counsel was

unambiguous, and that the state court’s determination to the

contrary was “an unreasonable application of Supreme Court

precedent,” id. at 629.

According to Robertson, Sessoms is directly on point.

Like the defendant in that case, Robertson contends, he was

in custody, and made a request for counsel during his

preliminary interactions with Agent Ryan before formal

interrogation began (and before he was read his Miranda

rights). But there is a key difference between his situation

and the situation of the defendant in Sessoms: Sessoms held

that the defendant was in the context of a custodial

interrogation at the time he invoked his right to counsel. See

id. at 626. The central issue was the ambiguity of the

defendant’s request for counsel, not the timing of that request

or the purposes for which that request was made. See id. at

627–29. In this case, by contrast, the state court could

24 ROBERTSON V. PICHON

reasonably conclude that Robertson was not in the context of

a custodial interrogation at the time he requested counsel.

Because Sessoms did not address the question raised by our

case, it is inapposite here.9

In sum, the Supreme Court has not addressed the question

whether a defendant’s request for counsel in response to a

request to submit to a chemical test constitutes an invocation

of his Miranda rights for purposes of any future custodial

interrogations. Therefore, we cannot say that the state court’s

ruling, that the admission of Robertson’s statements

regarding the billy club did not violate Miranda and Edwards,

is objectively unreasonable.10 We therefore affirm the district

court’s denial of Robertson’s petition.

9

For the same reason, Robertson’s reliance on Jones v. Harrington

does not help him. See 829 F.3d 1128, 1141 (9th Cir. 2016) (holding that

a state court’s determination that a defendant’s invocation of the right to

remain silent was ambiguous was an unreasonable application of Supreme

Court precedent where the defendant was subject to hours of custodial

interrogation, and stated “I don’t want to talk no more”).

10

Our analysis is not affected by Missouri v. Seibert, 542 U.S. 600

(2004). Under Justice Kennedy’s concurrence, which we have held to be

controlling, see United States v. Williams, 435 F.3d 1148, 1158 (9th Cir.

2006), “postwarning statements that are related to the substance of

prewarning statements must be excluded absent specific, curative steps”

if “an interrogator uses [a] deliberate, two-step strategy, predicated upon

violating Miranda during an extended interview,” Seibert, 542 U.S. at 621

(Kennedy, J., concurring in the judgment). Seibert is not implicated here:

Robertson makes no allegation that Agent Ryan employed a “deliberate,

two-step strategy” in order to circumvent Miranda, and Robertson’s

postwarning statements at issue here, regarding the billy club, do not relate

to the substance of statements Robertson made prewarning.

ROBERTSON V. PICHON 25

IV

Robertson also raises five uncertified claims. “When a

brief includes uncertified issues, we may treat it as a request

to expand the scope of the certificate of appealability.”

Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008);

see Ninth Circuit Rule 22-1(e). Under AEDPA, a certificate

of appealability (COA) cannot be issued or expanded unless

“the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). “We look to

the District Court’s application of AEDPA to [Robertson’s]

constitutional claims,” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003), and Robertson “must demonstrate that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong” in light of AEDPA,

id. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

First, Robertson contends that his trial counsel’s failure to

object to the admission of his statements regarding the billy

club amounted to ineffective assistance of counsel.11 A

petitioner claiming ineffective assistance of counsel must

show: (1) “that counsel’s performance was deficient” and

(2) “that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). In

claiming that his counsel was deficient, Robertson points to

his trial counsel’s declaration, initially submitted with

Robertson’s motion for a new trial, stating that counsel did

not object to the admission of Robertson’s statements about

the billy club solely due to his mistaken belief that section

11

In support of this claim, Robertson moved belatedly to file

supplemental excerpts of record cited in his reply brief. We deny the

motion as moot.

26 ROBERTSON V. PICHON

12020(a)(1) of the California Penal Code was a specific intent

crime, and the government had not established that Robertson

knew having a billy club was a crime. The trial court rejected

this contention on the ground that Robertson’s trial counsel

“may have believed that the objection would have been futile

or because it enabled the defendant to present to the jury his

statement that he did not know it was against the law to have

the baton.” The district court rejected this ineffective

assistance claim without comment.

No reasonable jurist would find the district court’s ruling

debatable, because the state court’s determination that the

counsel could have had strategic reasons for not objecting to

admission of Robertson’s statements was not an unreasonable

application of Strickland, which “mandates a ‘strong

presumption’ that counsel acted ‘for tactical reasons rather

than through sheer neglect.’” Demirdjian v. Gipson, 832 F.3d

1060, 1066–67 (9th Cir. 2016) (quoting Yarborough v.

Gentry, 540 U.S. 1, 8 (2003) (per curiam)). Trial counsel’s

post-hoc explanation that his decision was based on a legal

error is not dispositive, because Strickland “calls for an

inquiry into the objective reasonableness of counsel’s

performance, not counsel’s subjective state of mind.” Richter,

562 U.S. at 110.

Next, Robertson asserts that the Appellate Division’s

decision that the instructional error was harmless was an

unreasonable application of Chapman v. California, 386 U.S.

18 (1967). Robertson argued that the trial court’s instructions

on section 23577 (the enhancement based on his refusal to

submit to blood or breath alcohol test) missed an element of

the offense (that he had been lawfully arrested) and

contended that the trial court’s failure to sua sponte instruct

the jury on this element violated his rights under Apprendi v.

ROBERTSON V. PICHON 27

New Jersey, 530 U.S. 466 (2000), to have the prosecution

prove every element of his offense beyond a reasonable

doubt. The Appellate Division held that any instructional

error was harmless, stating: “Because the jury found beyond

a reasonable doubt that the appellant had driven under the

influence of alcohol, the jury found that appellant’s arrest was

lawful.”

The district court’s rejection of Robertson’s constitutional

claim is not debatable. At trial, the state presented

overwhelming evidence that Agent Ryan had reasonable

cause to believe that Robertson had been driving under the

influence of alcohol and could cause bodily harm or property

damage, and therefore Robertson’s arrest was lawful. See

Cal. Veh. Code § 40300.5 (providing that “a peace officer

may, without a warrant, arrest a person when the officer has

reasonable cause to believe that the person had been driving

while under the influence of an alcoholic beverage” if “[t]he

person may cause injury to himself or herself or damage

property unless immediately arrested,” among other

situations). Even assuming the refusal enhancement contains

a lawful-arrest element, the Appellate Division could have

reasonably concluded that the trial court’s failure to instruct

the jury on that element was harmless under Chapman.

Robertson’s appeal to Brecht v. Abrahamson, 507 U.S. 619

(1993), is unavailing because “a petitioner ‘necessarily cannot

satisfy’ the Brecht requirement of showing that he was

‘actually prejudiced’ by the state court’s error . . . ‘if a

fairminded jurist could agree with the [state appellate court]

that [the alleged error] met the Chapman standard of

harmlessness.’” Sifuentes v. Brazelton, 825 F.3d 506, 535

(9th Cir. 2016) (first alteration in original) (quoting Davis v.

Ayala, 135 S. Ct. 2187, 2199(2015)).

28 ROBERTSON V. PICHON

Robertson next argues that the Appellate Division

unreasonably applied Crane v. Kentucky, 476 U.S. 683

(1986), in determining that the trial court’s exclusion of

evidence relating to Agent Ryan’s credibility did not violate

his right to present a complete defense. The trial court had

excluded the bank surveillance photographs and related

expert testimony that had been previously admitted at the

suppression hearing, reasoning “that the probative value is

substantially outweighed by the undue consumption of time.”

See Cal. Evid. Code § 352.

We have previously held that a trial court’s exercise of

discretion to exclude evidence under a rule of evidence that

requires balancing probative value against prejudice could not

be an unreasonable application of clearly established

Supreme Court precedent, because the Court has never

addressed the question whether such a rule could violate a

defendant’s constitutional rights. See Moses, 555 F.3d at

758–59. No Supreme Court decision has established such a

rule since we reached this conclusion in Moses. Therefore,

no reasonable jurist could disagree with the district court’s

conclusion that the state court’s rejection of Robertson’s

Crane claim was not contrary to, or an unreasonable

application of, clearly established federal law.

Robertson also argues that the Appellate Division’s

conclusion that there was no showing of prosecutorial

misconduct was contrary to Darden v. Wainwright, 477 U.S.

168 (1986). Robertson claimed that the prosecutor engaged

in misconduct in telling the jury that “to find reasonable

doubt in this case you got to believe . . . [that Robertson] had

some good reason not to blow besides guilt, and he was

willing to take the consequences for some reason besides

being guilty.” The district court rejected this claim, and no

ROBERTSON V. PICHON 29

reasonable jurist could disagree with this conclusion. Darden

instructs “that a prosecutor’s improper comments amount to

a constitutional violation if they ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process. ’” Deck v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2014)

(quoting Darden, 477 U.S. at 181). In making this

determination, a court may consider “(1) whether the

prosecutor’s comments manipulated or misstated the

evidence; (2) whether the trial court gave a curative

instruction; and (3) the weight of the evidence against the

accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th

Cir. 2005). Here, the state court could have reasonably found

that the trial was not infected with unfairness, given that the

prosecutor’s comments are best understood as characterizing

Robertson’s argument rather than misstating the evidence, the

trial court instructed jurors to disregard “attorneys’ comments

on the law” to the extent they conflicted with the court’s

instructions,, and the evidence against Robertson at trial was

overwhelming.12 See id.

Finally, Robertson argues that the Appellate Division’s

determination that section 12020 of the California Penal Code

does not violate the Second Amendment is an unreasonable

application of District of Columbia v. Heller, 554 U.S. 570

(2008). No reasonable jurist could disagree with the district

court’s rejection of this argument, given that the Supreme

12

Robertson’s reliance on Miller v. Pate, 386 U.S. 1 (1967), and

Alcorta v. Texas, 355 U.S. 28 (1957) (per curiam), is misplaced. No

reasonable jurist could disagree that the state court could have drawn a

principled distinction between this case on the one hand and Miller and

Alcorta on the other, as both of those cases involved the elicitation of false

testimony in the presentation of the prosecution’s case rather than a

characterization of the defendant’s theory of the case in closing

arguments. See Miller, 386 U.S. at 3–4; Alcorta, 355 U.S. at 29–30.

30 ROBERTSON V. PICHON

Court has never ruled on whether there is a constitutional

right to possess a billy club. See id. at 574. Robertson’s

reliance on McDonald v. City of Chicago, 561 U.S. 742

(2010), and Caetano v. Massachusetts, 136 S. Ct. 1027

(2016) (per curiam), fails at the threshold. Neither McDonald

nor Caetano had been issued by the Supreme Court before the

Appellate Division affirmed Robertson’s convictions on

direct appeal in 2009, and therefore neither can constitute

“clearly established federal law . . . as of the time of the state

court decision,” Hedlund v. Ryan, 815 F.3d 1233, 1239 (9th

Cir. 2016) (quoting Clark v. Murphy, 331 F.3d 1062, 1069

(9th Cir. 2003)).13

AFFIRMED.

THOMAS, Chief Judge, concurring:

Given the standard of review required by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), I concur in the majority opinion. Because the

state of the law concerning pre-interrogation assertion of

Miranda rights is not “clearly established,” the state court

decision in this case was not “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254. The Supreme Court has “never held that

a person can invoke his Miranda rights anticipatorily, in a

13

Of course, neither McDonald nor Caetano would aid Robertson

even had they been issued before the Appellate Division’s decision in

2009, as neither case addressed the constitutional right to possess a billy

club. See McDonald, 561 U.S. at 750; Caetano, 136 S. Ct. at 1027.

ROBERTSON V. PICHON 31

context other than ‘custodial interrogation.’” McNeil v.

Wisconsin, 501 U.S. 171, 182 n.3 (1991). And a suspect’s

“refusal to take a [lawfully-requested] blood-alcohol test” is

neither a coerced act, nor is it “protected by the privilege

against self-incrimination.” South Dakota v. Neville,

459 U.S. 553, 564 (1983).

However, if this appeal were on direct review, one might

reach a different conclusion. The defendant anticipatorily

asserted his Miranda rights while in custody in connection

with the police request that he submit to a blood alcohol test.

Nevertheless, the police continued the questioning and, at

some point, provided a Miranda warning. This situation,

under Supreme Court jurisprudence, would present a

legitimate Miranda/Edwards issue on direct review. See

Missouri v. Seibert, 542 U.S. 600, 613–14 (2004) (“[W]hen

Miranda warnings are inserted in the midst of coordinated

and continuing interrogation, they are likely to mislead and

deprive a defendant of knowledge essential to his ability to

understand the nature of his rights and the consequences of

abandoning them.”) (quoting Moran v. Burbine, 475 U.S.

412, 424 (1986)) (alterations omitted); Montejo v. Louisiana,

556 U.S. 778, 794–95 (2009) (explaining that once a

defendant has invoked his right to counsel, “not only must the

immediate contact end, but ‘badgering’ by later requests is

prohibited”) (citing Miranda v. Arizona, 384 U.S. 436 (1966);

Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v.

Mississippi, 498 U.S. 146 (1990)). But that question is for

another day, and it is unnecessary for us to opine on that

question here. On AEDPA review, I agree that the district

court should be affirmed, and I concur in the majority

opinion.