“We have previously held that a trial court’s 6 exercise of discretion to exclude evidence under a rule of evidence that requires balancing 7 probative value against prejudice could not be an unreasonable application of clearly 8 established Supreme Court precedent, because the Court has never addressed the question 9 whether such a rule could violate a defendant’s constitutional rights.” (citing Moses, 555 10 F.3d at 758–59)
How later courts described this case
- “We have previously held that a trial court’s 6 exercise of discretion to exclude evidence under a rule of evidence that requires balancing 7 probative value against prejudice could not be an unreasonable application of clearly 8 established Supreme Court precedent, because the Court has never addressed the question 9 whether such a rule could violate a defendant’s constitutional rights.” (citing Moses, 555 10 F.3d at 758–59)
- “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[.]’” (quoting McNeil, 501 U.S. at 178 )
- “[T]he state court’s 14 determination that . . . counsel could have had strategic decisions for not objecting to admission of 15 [certain evidence] was not an unreasonable application of Strickland, which mandates a strong 16 presumption that counsel acted for tactical reasons rather than through sheer neglect.”
- “We have jurisdiction over 28 Robertson’s appeal because he filed his petition while he was on probation. Probationary status 1 | qualifies as being “in custody” for jurisdictional purposes”
Written by the judges who cited it.
The opinion
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 context other than ‘custodial interrogation.’ ” McNeil v. Wisconsin, 501 U.S. 171 , 182 n.3, 111 S.Ct. 2204 , 115 L.Ed.2d 158 (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 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (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 *1191 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 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004) (“[WJhen 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 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986)) (alterations omitted); Montejo v. Louisiana, 556 U.S. 778, 794-95 , 129 S.Ct. 2079 , 173 L.Ed.2d 955 (2009) (explaining that once a defendant has invoked his right to counsel, “not only must thq immediate contact end, but ‘badgering’ by later requests is prohibited”) (citing Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981); Minnick v. Mississippi, 498 U.S. 146 , 111 S.Ct. 486 , 112 L.Ed.2d 489 (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.