# Appendix — Cate v. Anderson (No. 07-1436) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1477%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text : Supreme Court U.S. 3 (}) 071436 MAY 15 2008 In the Supreme Court of the USfRIGROAL EME CLERK C. A. TERHUNE, Petitioner, V. JEROME ALVIN ANDERSON, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX PETITION FOR WRIT OF CERTIORARI EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MANUEL M. MEDEIROS State Solicitor General MICHAEL P. FARRELL Senior Assistant Attorney General DONALD E. DE NICOLA Deputy State Solicitor General RACHELLE A. NEWCOMB Deputy Attorney General STEPHEN G. HERNDON Supervising Deputy Attorney General Counsel of Record 1300 I Street, Suite 125 PO. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-0350 Fax: (916) 324-2960 Counsel for Petitioner Appendix A Appendix B Appendix C Appendix D Appendix E United States Court of Appeals for the Ninth Circuit, No. 04-17237, D.C. No. CV-00-002494-WBS, Opinion, filed February 15, 2008 United .States Court of Appeals for the Ninth Circuit, No. 94-17237, D.C. No. CV-00-002494-WBS, Opinion, filed November 8, 2006 In the United States District Court for the Eastern District of California, No. CIV S-00-2404 WBS DAD P, riaata224 & Recommendations, filed September 28, 2004 In the Court of Appeal of the State of California, Third Appellate District, No. C030610, Opinion, filed March 2, 2000 Superior Court of the State of California, County of Shasta, No. 97F5048, Memorandum of Decision on Motion to Suppress Evidence and Motion in Limine; Order, dated June 17, 1998 APPENDIX A FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JEROME ALVIN ANDERSON, No. 04-17237 Petitioner-Appellant, D.C. No. CV-00-002494- WBS C.A. TERHUNE, Warden, OPINION Respondeni-A ppellee. Appeal from the United States District Court for. the Kastern District of California William B. Shubb, Chief Judge, Presiding Argued and Submitted October 9, 2007—San Francisco, California Filed February 15, 2008 Before: Mary M. Schroeder, Stephen Reinhardt, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge McKeown; Concurrence by Judge Silverman; Partial Concurrence and Partial Dissent by Judge Bea; Dissent by Judge Tallman SUMMARY Criminal Law and Procedure/Habeas Corpus The court of appeals reversed a judgment of the district court. The court held that a state court unreasonably concluded that a defendant’s statements that “I don’t even wanna talk about this no more,” and “I plead the Fifth,” were ambiguous in context, and that the interrogating officer’s retort—“Plead the Fifth. What’s that?”—sought clarification. Appellant Jerome Anderson, who was convicted of special circumstance murder in California state court and denied state post-conviction relief, petitioned for a writ of habeas corpus in federal district court, claiming that he was denied both his constitutional right to remain silent and due process by the introduction of his involuntary confession into evidence, and by the exclusion of evidence of coercion in the interrogation process. The state court concluded that Anderson’s statements to police while in custody that “I don’t even wanna taik about this no more,” and “I plead the Fifth,” were ambiguous in context, and that the interrogating officer’s retort—“Plead the Fifth. What’s that?—sought clarification. Once Anderson stated “I’d like to have an attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, the officers subsequently concluded that Anderson wanted to reinitiate the discussion, and after three hours of further questioning, Anderson confessed. The district court denied Anderson’s petition. Anderson appealed. [1] Under Miranda, if an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [2] “Context” cannot be manufactured by straining to raise a question regarding the intended scope of a facially unambiguous invocation of the right to silence. [3] Nothing was ambiguous about the statement “I plead the Fifth.” “Ambiguity” means admitting more than one interpretation or reference or having a double meaning or reference. [4] Anderson did not equivocate in his invocation by using words such as “maybe” or “might” or “I think.” Anderson had already twice attempted to stop the police questioning using crystal-clear language: “I don’t want to talk about this no more,” and “Uh! I’m through with this,” and “I wanna be taken into custody.” Saying that he wanted to be taken into custody was an indication that Anderson did not want to talk about the murder or anything else. “Taking the Fifth” is as unequivocal as one can get in invoking the ritht to rem iin silent. [5] Police must scrupulously honor a suspect’s right to remain silent by immediately ceasing questioning when the suspect invokes this right. [6] Instead of scrupulously honoring the request, the interrogating officer decided to “play dumb” hoping to keep Anderson talking by inquiring, “Plead the Fifth. What’s that?” At best, the officer was mocking and provoking Anderson. [7] No reasonable officer could legitimately be in doubt about the meaning of “I plead the Fifth.” The state court’s characterization was a fanciful re-imagining of the colloquy between Anderson and the officer, and under the Antiterrorism and Effective Death Penalty Act (AEDPA), an unreasonable determination of the facts. [8] Where the initial request to stop the questioning is clear, the police may not create ambiguity in a defendant’s desire by continuing to question him or her about it. By parsing Anderson’s invocation into specific subjects,.the police failed to honor a decision of a person in custody to cut off questioning. [9] The state court’s decision to ignore an unambiguous declaration of the right to remain silent was an unreasonable application of Miranda. The state court’s labeling of Anderson’s statements as ambiguous and characterizing the officer’s response as a legitimate clarifying inquiry were unreasonable determinations of fact. [10] An accused’s post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. [11] All questioning must immediately cease once the right to remain silent is invoked, and any subsequent statements by the defendant in response to continued interrogation cannot be used to find a waiver or cast ambiguity on the earlier invocation. [12] The court of appeals could not simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s purported re-initiation of the interrogation. [13] The prejudice from Anderson’s confession could not be soft pedaled, and the error was not harmless. [14] The judgment of the district court is reversed and the case had to be remanded with instructions to grant the writ. Judge Silverman concurred, writing separately to state that, in its treatment of the state appellate court’s ruling that Anderson’s statements were ambiguous in context, the majority failed to observe that an unreasonable application of federal law is different from an incorrect application of federal law. Judge Bea concurred in part, and dissented in part, writing that, given that Anderson validly waived his right to counsel and his right to remain silent before he confessed, the admission of his confession was not error, and the state appellate court’s denial of habeas relief was not contrary to, nor an unreasonable application of, clearly established federal law. Judge Tallman dissented, writing that the majority fixated on the words “plead the Fifth,” lifted in isolation from a portion of the transcribed interview, without giving the required level of deference to the trial court’s findings of fact after an evidentiary hearing, which included the entire tape recording and the testimony of the interrogators; the state courts’ conclusion was not unreasonable. COUNSEL Charles M. Bonneau (argued), Sacramento, California, for the petitioner-appellant. Rachelle A. Newcomb, Deputy Attorney General (argued) and Edmund G. Brown, Jr., Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Michael P Farrell, Senior Assistant Attorney General; Stephen G. Herndon, Supervising Deputy Attorney General; Brian R. Means, Deputy Attorney General; Sacramento, California, for the respondent-appellee. Peter C. Pfaffenroth (argued), Jeffrey T. Green, Harold L. Rogers, Sidley Austin LLP, Washington, DC; Charles D. Weisselberg, University of California School of Law (Boalt Hall), Berkeley, California; David M. Porter, Sacramento, California; Sheryl Gordon McCloud, Seattle, Washington, for amicus curiae National Association of Criminal Defense Lawyers. OPINION McKEOWN, Circuit Judge: It is hkely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn’t take a trained linguist, a Ph.D., or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that “in popular parlance and even in legal literature, the term ‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163 (1955); accord In re Johnny V,, 149 Cal. Rptr. 180, 184, 188 (Cal. Ct. App. 1978) (holding that the statement “I’ll take the fifth” was an assertion of the Fifth Amendment privilege). More recently, the Court highlighted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). We granted a rehearing en banc” in this appeal from the district court’s denial of Jerome Alvin Anderson’s petition for writ of habeas corpus. Anderson challenges his conviction of special circumstances murder on the grounds that he was denied his constitutional right to remain silent and that admission of his involuntary confession into evidence violated his right to due process. Specifically, Anderson claims that he invoked his Fifth Amendment right to terminate his police interrogation and that the police officer’s continued questioning violated that right. Anderson twice attempted to stop police questioning, stating “I don’t even wanna talk about this 1. Anderson v. Terhune, 467 F.3d 1208 (9th Cir. 2006), reh’g en banc granted, 486 F.3d 1155 (9th Cir. 2007). no more,” and “Uh! I’m through with this.” After questioning continued, Anderson stated unequivocally, “IT plead the Fifth.” Instead of honoring this unambiguous invocation of the Fifth Amendment, the officer queried, “Plead the Fifth. What’s that?” and then continued the questioning, ultimately obtaining a confession. It is rare for the courts to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent. ‘ The state court held that Anderson’s statement, “I plead the Fifth,” was ambiguous and that the officer asked a legitimate clarifying question. Under even the narrowest construction of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (“AEDPA”), the state court erred in failing to recognize this constitutional violation. The continued questioning violated: the Supreme Court’s bright-line rule established in Miranda. Once a person invokes the right to remain silent, all questioning must cease: If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966); see also Michigan v. Mosley, 423 U.S. 96, 103 (1975) (explaining that once a defendant has invoked his right to remain silent, that right must be “scrupulously honored”) (quoting Miranda, 384 U.S. at 479). An examination of the interrogation transcript” reveals that the state court’s conclusion that Anderson’s invocation was ambiguous was an unreasonable application of Miranda and based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1), (2). Only one reasonable conclusion can be gleaned from his statements, especially his last declaration, “I plead the Fifth”: Anderson invoked his right to remain silent and wanted to end the interrogation. Constructing the officer’s statement, “Plead the Fifth? What’s that?”, as asking what Anderson meant is also an unreasonable determination of the facts. Id. § 2254(d)(2). These errors were not harmless and, accordingly, we reverse the judgment of the district court and remand with directions to grant the writ of habeas corpus. I BACKGROUND | Anderson and the victim, Robert Clark, were friends. On the morning of July 9, 1997, a mutual acquaintance, Patricia Kuykendall, discovered that her car had been stolen. Anderson and Kuykendall suspected that Clark was involved and later that morning confronted him at Kuykendall’s house. 2. Anderson filed a motion requesting that the en banc panel take judicial notice of the entire transcript of the interrogation. We asked the parties to clarify whether either the complete transcript or the audio tape of the interrogation was part of the record before the state appellate court. The answer is unclear, although it is undisputed that both were available to the court. Thus, we consider both to be part of the record in this appeal. Nonetheless, whether one considers the transcript of the audio tape, the result is the same. 10 Kuykendal! began yelling at Clark, but Anderson remained calm. When Clark denied that he stole the car, he appeared edgy and nervous. As Kuykendall left the room to call the police, Clark left the house. Anderson and Kuykendall’s roommate, Abe Santos, left ten minutes later, stating they were going to follow Clark. Clark’s body was discovered by the side of a road later that afternoon. He had been shot in the head four times. Investigators found a methamphetamine pipe lying between Clark’s arm and body. A cigarette lighter was resting on Clark’s stomach under his right hand. Pieces of a partially-eaten hamburger and a fresh cigarette butt were also near the body, as well as spent .22 caliber shell casings. The police asked Anderson to come in for an interview two days later, July 11. During the interview, Anderson explained that on the day of the murder he saw Clark at Kuykendall’s apartment in the morning, but that he and Santos left to buy some hamburgers, after which they went to Santos’s father’s house and to a car wash. The police took Anderson into custody for a parole violation on July 12. Four officers interviewed Anderson for approximately three and a half hours. Despite clear and repeated invocations of his right to remain silent, the officer continued to question Anderson about the murder: O’Connor: You act like you’re cryin’ like a baby, an’, you can’t cry for someone that was no good... an’ you killed him for 1} a good reason. Anderson: No, way. I — You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. That’s wrong. That’s wrong. O’Connor: Right now, you show your remorse. Immediately after this exchange, the officer continued to interrogate Anderson regarding his drug use on the day of the murder, including whether Anderson had used pipes. This questioning is significant because the murder victim was found with a pipe next to him. The entire conversation was about the murder. In response to this questioning, Anderson unambiguously indicated that he wanted to end the interrogation by stating that he was “through with this,” wanted to “be taken into custody” and “I plead the Fifth.” The relevant portion of the transcript is so extraordinary that it bears repeating. Anderson: Ihavenothin’ to worry about, nothin’ to hide. That’s why I show no remorse. Nothin’ to worry about, nothin’ to hide. He was my friend, - an’ there’s no way I would do it. No way I would do it. O’Connor: Were you high that day? Anderson: No, sir. I — probably was later on. Yes. O’Connor: Anderson: O’Cornor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: 12 Did you have any dope with you that ... that day? No, sir. No, dope at all? What do you smoke with? I smoke with my . . . my fingers. When y»u smoke your dope what do you do with that? How do you smoke that? You smoke it with pipes and stuff like that. Okay. What kind of pipes? Lines. What kind of pipes? N’ah ... I would —-I- Well, what kind of pipes? Uh! I’m through with this. I’m through. I wanna be taken in custody, with my parole... Well, you already are. I wanna know what kinda pipes you have? I plead the [FJifth. O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: ©’Connor: Anderson: 13 Plead the [F ]ifth. What’s that? No, you guys are wrong. You guys are wrong. You guys have -— I’ve tried to tell you everything I know. As far as I know, you guys are lying, uh, making things up, extenuating and that’s not right. It’s not right. We’re not makin’ anything up. Sir, sure you are. What are we makin’ up? You’re tellin’ me that I didn’t have tears in my eyes. Yeah. You’re tellin’ me, okay, that, uh, uh, Abe said I kilt (sic) him. That’s a lie. The questioning continued until Anderson asked for alawyer: “I’d like to have an attorney present.” At that juncture, an officer turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officers concluded that Anderson wanted to reinitiate the discussion. The further questioning, which took place over a three-hour period, led to a confession by Anderson. Anderson was convicted of special circumstances murder. On appeal, as in the trial court, he challenged the adiiissibility of his confession, arguing that it was 14 obtained in violation of Miranda and of his Fifth Amendment right to remain silent. ‘The California Court of Appeal rejected Anderson’s argument. The court concluded that Anderson’s invocation of his right to remain silent was ambiguous and that the officer asked a legitimate clarifying question when he responded to Anderson’s statement, “I plead the [Fjifth,” with “Plead the [FJifth. What’s that?” The state appellate court reasoned that Anderson could have been refusing to talk about his drug use, and did not intend to terminate the interview. The state court further held that Anderson waived any invocation of the right to silence or to counsel when he re-initiated the interrogation after the officers turned of the tape. Il. STANDARD OF REVIEW Under AEDPA, a writ of habeas corpus may not be granted unless the state court’s decision (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2). Although this standard requires us to give considerable deference to the state courts, AEDPA deference is not a rubber stamp. See Miller-Eil v. Dretke, 545 U.S. 231, 240, 265 (2005) (refusing to accept a state court’s “dismissive and strained interpretation” of the prisoner’s evidence on habeas review and, noting that “[dJeference does not by definition preclude relief”). The state court decision here collides with AEDPA on all grounds. It reflects both an unreasonable application of Miranda, which is 15 clearly established federal law, and an unreasonable determination of the facts. II. IN CONTRAVENTION OF MIRANDA, THE STATE COURT UNREASONABLY CONCLUDED THAT ANDERSON’S INVOCATION (“I PLEAD THE FIFTH”) WAS AMBIGUOUS [1] Following the issuance of Miranda in 1966 and the literally thousands of cases that repeat its rationale, we rarely have occasion to address a situation in which the defendant not only uses the facially unambiguous words “I plead the Fifth,” but surrounds that invocation with a clear desire not to talk any more. The state court accurately recognized that under Miranda, “if [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” 384 U.S. at 473-74, but then went on to eviscerate that conclusion by stating that the comments were “ambiguous in context”: In the present case, the defendant’s comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all. By asking defendant what he meant by pleading the fifth, the officer asked a legitimate clarifying question. [2] Using “context” to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law. It is not that context is unimportant, but it simply cannot 16 be manufactured by straining to raise a question regarding the intended scope of a facially unambiguous invocation of the right to silence. As the Supreme Court has observed, in invoking a constitutional right, “a suspect need not ‘speak with the discrimination of an Oxford don.’” Davis v. United States, 512 U.S. 452, 459 (1994)” (quoting id. at 476 (Souter, J., concurring in judgment)). Anderson would meet even this erudite standard. Miranda requires only that the suspect “indicate[] in any manner... that he wishes to remain silent.” Miranda, 384 U.S., at 473-74. {3] This is not a case where the officers or the court were left scratching their heads as to what Anderson meant.” Nothing was ambiguous about the statement “I plead the Fifth.” Ambiguity means “admitting more 3. We acknowledge that Davis is an invocation of counsel case under Miranda, not a Fifth Amendment right to silence case. We rely on Miranda and Mosley, not Davis, as “clearly established” law. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996) (declining to address whether Davis applies to right to silence cases). Nonetheless, the general principles from cases involving the clarity of invocation of rights during custodial interrogation are instructive as to common sense interpretation of language. 4. The trial court stated, “while the defendant articulated words that could, in the isolation [sic], be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview.” (emphasis added). Similarly, the state court of appeal stated, “In the present case, the defendant's comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.” (emphasis added). Obviously, the court recognized that “I plead the Fifth” was an invocation of the right to silence; it detected ambiguity only as to the scope of the invocation. } 17 than one interpretation or reference” or “having a double meaning or reference.” The New Shorter Oxford ' English Dictionary (1993). Even if the preliminary statements “I don’t even wanna talk about this no more” and “I’m through with this. I’m through. I wanna be taken in custody,” were viewed as somewhat equivocal—a dubious conclusion at best—“I plead the Fifth” left no room for doubt. | As we recently observed, “neither the Supreme Court nor this court has required that a suspect seeking to invoke his right to silence provide any statement more explicit or more technically-worded than ‘I have nothing to say.’” Arnold v. Runnels, 421 F3d 859, 865 (9th Cir. 2005). We went on to underscore that Arnold’s statement easily met the Fifth Amendment standard: “Indeed, it is difficult to imagine how much more clearly a layperson like Arnold could have expressed his desire to remain silent.” Jd. at 866. [4] Anderson did not equivocate in his invocation by using words such as “maybe” or “might” or “I think.” See id. at 865-66 (distinguishing cases in which the court concluded that a qualified invocation was ambiguous from cases in which the invocation of the right to silence was specific and unambiguous). Nor was there anything ambiguous in Anderson declaring, “I plead the Fifth.” Anderson had already twice attempted to stop the police questioning using crystal-clear language: “I don’t want to talk about this no more” and “Uh! I’m through with this. I’m through. I wanna be taken into custody ....” Saying that he wanted to be taken into custody was an indication that Anderson did not want to talk about the murder, his drug use, or anything else. Thus, the state court was unreasonable 18 in concluding that the invocation was ambiguous in context because the context, in fact, makes it clear that Anderson wanted to end the interrogation in all respects. Anderson had the right to end the interrogation at any point and the fact that Anderson had answered the officers’ questions for over two hours does not somehow undermine or cast doubt on an unambiguous invocation. Whether these were “statements of frustration,” as the government posited at oral argument, misses the point. A suspect can both be frustrated with an interrogation and seek to terminate it. “Taking the Fifth” is as unequivocal as one can get in invoking the right to remain silent. IV. THE STATE COURT’S CONCLUSION THAT THE OFFICER ASKED A LEGITIMATE CLARIFYING QUESTION WAS AN UNREASONABLE DETERMINATION OF THE FACTS [5] Anderson’s unambiguous, unequivocal invocation should have brought an immediate end to questioning. Notably, the Supreme Court’s commitment to Miranda’s fundamental tenet—that police must “scrupulously honor{]” a suspect’s right to remain silent by immediately ceasing questioning when the suspect invokes this right, 384 U.S. at 479 (emphasis added)-—has never wavered. See Mosley, 423 U.S. at 103 (Miranda’s “critical safeguard” is a “person’s ‘right to cut off questioning’”); see also Arizona v. Roberson, 486 U.S. 675, 683 (1988); Kolender v. Lawson, 461 U.S. 352, 368 n.6 (1983) (Brennan, J., concurring; cf. Dickerson, 530 U.S. at 440 (reaffirming constitutional requirement that “the exercise of [Miranda] rights must be fully honored”). 19 [6] Instead of scrupulously honoring the request, the interrogating officer decided to “play dumb,” hoping to keep Anderson talking by inquiring, “Plead the Fifth. What’s that?” This effort to keep the conversation going was almost comical. At best, the officer was mocking and provoking Anderson. The officer knew what “I plead the Fifth” meant. It is thus baffling that the state court determined that “[bly asking defendant what he meant by pleading the Fifth, the officers asked a legitimate clarifying question.” The need for clarification presumes some ambiguity or uncertainty. Nothing needed clarification. This situation brings to mind the phrase attributed to a Canadian judge—“won’t take no for an answer’—and - later popularized in county music as “What part of ‘no’ don’t you understand?”? What about the words “I plead the Fifth” is unclear, ambiguous, or confusing to a reasonable officer? Nothing. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (holding in the context of the invocation of the right to counsel that “[iJnterpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous”). Rather, the officer hoped Anderson would explain more about the murder, the exact topic Anderson did not want to talk about. The officer thought that continuing the interrogation was “reasonably likely to elicit an incriminating response” from Anderson. Rhode Island v. Innis, 446 U.S 291, 303 5. See The Phrase Finder, What part of no don’t you understand?, http://www.phrases.org.uk/meanings/what-part-of no. htm] (last visited Nov. 30, 2007); LORRIE MORGAN, What Part of No (words and music by Wayne Perry and Gerald Smith), on WATCH ME (BNA Records 1992). (1980). And he was right. In the right-to-counsel context, the Supreme Court has countenanced clarifying questions only to ascertain whether a suspect’s ambiguous or equivocal statement is actually an invocation of his Fifth Amendment right. See Davis, 512 US. at 461; Miranda, 384 US. at 445 (focusing only on the threshold question of whether the accused “indicate[d] in any manner that he d[id] not wish to be interrogated” when deciding whether police had honored the accused’s Fifth Amendment rights); cf. Smith v. Illinois, 469 U.S. 91, 95 (1984) (holding that “[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance”). Ignoring this principle, the state court found that the comments were ambiguous “because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.” [7] The state court’s rationale collapses beneath its own weight, because the officer’s comment showed that the interrogating officers did not believe that Anderson’s statement was ambiguous. The officer did not ask Anderson what subject he did not want to discuss; nor did any of his follow-up questioning address this topic. Similarly, the officer did not ask him if he wished to remain silent or whether he simply did not want to talk about the drug issue. The officer did not even ask Anderson what he meant. No reasonable officer could legitimately be in doubt about the meaning of “I plead the Fifth.” The state court’s characterization is a fanciful re-imagining of the colloquy between Anderson and the officer, and under AEDPA, an unreasonable determination of the facts. 21 The state court’s conclusion that “[i]t was the defendant, not the interrogators, who continued the discussion,” ignores the bedrock principle that the interrogators should have stopped all questioning.” A statement taken after the suspect invoked his right to remain silent “cannot be other than the product of compulsion, subtle or otherwise.” Miranda, 384 U.S. at 474. Finally, it makes no sense to split hairs and say that maybe, just maybe, Anderson wanted to talk about the murder and not about his drug use because, in fact, the drug use was inextricably intertwined with the murder. The victim’s body was found next to a methamphetamine pipe. Anderson’s drug use that day could well tie him to the murder. He was taken in for questioning about the murder, not on a potential drug charge. It is precisely this kind of conjecture and hair- splitting that the Supreme Court wanted to avoid when it fashioned the bright-line rule in Miranda. Cf. Davis, 512 US. at 461 (noting that, where the suspect asks for counsel, the benefit of the bright-line rule is the “clarity and ease of application” that “can be applied by officers in the real world without unduly hampering the gathering of information” by forcing them “to make difficult judgment calls” with a “threat of suppression if they guess wrong”). No guess work was required here. 6. As the Third Circuit aptly stated, “[uJnder Miranda, the onus was not on [the suspect] to be persistent in her demand to remain silent. Rather, the responsibility fell to the law enforcement officers to scrupulously respect her demand.” United States v. Lafferty, 503 F3d 293, 304(3d Cir. 2007). 22 Under the state court’s application of Miranda and its progeny, every time a suspect unequivocally invokes the right to remain silent, the police can ask follow-up questions to clarify whether he really, really wants to invoke the right and to parse the subject matter—“what “specifically do you not want to talk about?” Such a practice is tantamount to endless re-interrogation. The Sixth Circuit’s decision in McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001), where the defendant stated “I don’t want to talk about it,” illustrates the’ error of the state court’s approach: In the criminal proceeding against Tina McGraw, the state trial court declined to hold the confession inadmissible under Miranda since TinA ‘never demanded or requested to terminate the interview.’ Although Tina said that she did not want to talk about the rape itself, in other words, her confession that she assisted in the rape was held to be admissible under Miranda because she never said that she did not want to talk about subjects other than the rape. This, in our view, was an unreasonable application of Miranda and its progeny. Id. at 518. Here, the state court’s loose paraphrasing of the officer’s question—“Plead the [Fjifth. What’s that?”—as “asking defendant what he meant by pleading the Fifth” is unconvincing and an unreasonable determination of the facts. As the transcript reveals, the officer did not even pretend not to understand what Anderson meant. Instead, incredibly, he feigned ignorance of the Fifth Amendment. [8] Where the initial request to stop the questioning is clear, “the police may not create ambiguity in a defendant’s desire by continuing to question him or her about it.” Barrett, 479 U.S. at 535 n.5 (Brennan, J., concurring). By parsing Anderson’s invocation into specific subjects, “the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423 U.S. at 105-06. The net result is that such follow-up questions allowed the officer to avoid honoring the Fifth Amendment and, as in a right to counsel situation, enabled “the authorities through ‘badgerling]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional-—[to] wear down the accused and persuade him to incriminate himself.” Smith, 469 US. at 98. [9] Looking at this case through the AEDPA lens of deference, as we must, does nothing to change these conclusions. The state court’s decision to ignore an unambiguous declaration of the right to remain silent is un unreasonable application of Miranda, as was the decision to allow continued questioning. See Runnels, 421 F.3d at 867. Finally, the state court’s labeling of Anderson’s statements as ambiguous and characterizing the officer’s response as a legitimate clarifying inquiry were unreasonable determinations of fact. 24 V. THE STATE COURT’S DECISION WAS CONTRARY TO SUPREME COURT PRECEDENT BY FINDING A WAIVER BASED ON ANDERSON’S RESPONSES TO RE-INTERROGATION [10] The state appellate court attempted to bolster its conclusion about Anderson’s statements by claiming that he waived his right to remain silent in continuing to answer police questions after he stated, “I plead the Fifth”: [While words of invocation were spoken by the defendant, the court concludes that, in any case, he effectively waived the right to remain silent by what followed. ... By continuing to talk to the police officers, defendant demonstrated a willingness to continue to discuss the case. Put another way, the state court endorses the principle that once the officers ignored Anderson’s unequivocal invocation of the Fifth Amendment, their questioning kept him talking and resulted in a waiver of his right to remain silent. This analysis directly contravenes Supreme Court precedent: “(U]nder the clear logical force of settleD precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Smith, 469 U.S. at 100 (emphasis in origina]). [11] Smith mandates that all questioning must immediately cease once the right to remain silent is invoked, and that any subsequent statements by the defendant in response to continued interrogation cannot 25 be used to find a waiver or cast ambiguity on the earlier invocation. The Supreme Court’s somewhat lengthy recitation of this principle is particularly instructive in this case: | Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together. ... With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver “cannot be established by showing only that ithe accused] responded to further police-initiated custodial interrogation.” Using an accused’s subsequent responses to cast doubt on the adequacy of the initial request itself is even more intolerable. “No authority, and no logic, permits the interrogator to proceed... on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.” Id. at 98-99 (internal citations omitted) (emphasis, alteration and second ellipsis in original). We are not faced with a situation where there was a break in questioning after the Miranda invocation. 26 Instead, police simply continued the conversation up to the point that Anderson said, “Ud like to have an attorney present.” Only at that poimt did they stop the interrogation and turn off the recorder. But it was too late. [12] We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s purported re- | initiation of the interrogation. Doing so would eviscerate the mandate to “scrupulously honor[]” the invocation of Miranda rights. We understand the phrase “scrupulously honor” to have practical meaning. For the “right to remain silent” to have currency, there must be some silence. The interrogation must stop for some period of time. See Miranda, 384 US. at 473-74; Mosley, 423 U.S. at 103-04. Although the Supreme Court has yet to tell us how long the break in questioning must last, in this case there was no cessation at all. Because the interrogation was continuous to that point, we need not determine whether Anderson waived his right to counsel after viewing a videotape of his alleged accomplice nor do we need to address his coercion claim. [13] The prejudice from Anderson’s confession cannot be soft pedaled, and the error was not harmless. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The confession was central to the conviction: See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (“A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most .. . damaging evidence that can be admitted against him.” (internal quotation marks omitted)). Although deference must be given to state court determinations under AEDPA, we would be 27 abdicating our responsibility to abide by Supreme Court precedent and to police the Constitution’s boundaries were we to permit such an egregious violation of Miranda to go unchecked. [14] The judgment of the district court is reversed and the case is remanded with instructions to grant the writ. REVERSED AND REMANDED. SILVERMAN, Circuit Judge, with whom RAWLINSON, Circuit Judge, joins, concurring in the judgment: | The Supreme Court has taken pains to remind us that “[aJn unreasonable. application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (emphasis in original; quotation omitted). I write separately because I believe the majority opinion fails to observe this distinction,” id., in its treatment of the California Court of Appeal’s ruling that Anderson’s statements were “ambiguous in context.” I concur in the result because the California Court of Appeal rendered an unreasonable determination of the facts when it ruled that the officer’s feigned ignorance of the Fifth Amendment was a “legitimate clarifying question.” The first question we face is whether the state court acted contrary to or unreasonably applied Supreme Court law in holding that the police were entitled to clarify the statements Anderson made two hours into the interview. See 28 U.S.C. § 2254(d)(1). If Anderson 28 had said, “I plead the Fifth” immediately after having been read his rights, there would be no room for debate. The right to remain silent clearly would have been invoked. Here, however, after having been read his rights, Anderson answered questions for some two hours before making the statements now in issue. He indicated that he “don’t even wanna talk about this no more,” and in the next breath said, “We can talk about it later or whatever.” (Anderson says he does not argue that these statements were an unequivocal invocation of the right to remain silent.) He then proceeded to answer more questions. The conversation eventually turned to Anderson’s drug use. At that point, he said he was “through with this” and wanted to be “taken in custody,” even though he was already in custody. Then, when asked about his dope pipes, he said, “I plead the [F Jifth.” _ What did Anderson mean by asking to be “taken in custody,” in light of the fact that he was already in custody? What did he mean when he said he would “talk about it later or whatever?” Did Anderson’s “pleading the Fifth,” coming as it did after two hours of talking mean that he wanted to terminate the interview in its entirety, or was he referring to the immediate question? The California Court of Appeal ruled that Anderson’s statements “were ambiguous in context” and that the officers thus were justified in seeking clarification. This conclusion was not “contrary to” Supreme Court law, because the Supreme Court has held that officers have no obligation to stop questioning a suspect who has made an ambiguous or equivocal invocation of Miranda rights. Davis v. United States, 29 512 US. 452, 461-62 (1994). Indeed, the Supreme Court has specifically stated that when a suspect makes an ambiguous statement “it will often be good police practice” for interviewing officers to'ask “clarifying questions” about the suspect’s meaning. Id. at 461. Nor did the state court make an “unreasonable application” of this precedent in concluding that the officers were entitled to seek clarification from Anderson. The question before us is not whether we agree with the state court’s assessment of the ambiguity of Anderson’s statements, or even whether it is right or wrong, but only whether the court’s decision on that point was unreasonable. In my view, it was not unreasonable. It’s a different story when it comes to assessing the legitimacy of the “clarifying question” that the officer asked. Instead of asking Anderson what he intended to convey, the officer responded to Anderson’s “pleading the Fifth” by saying, “Plead the fifth. What’s that?” As to this, the California Court of Appeal ruled as follows: By asking defendant what he meant by pleading the fifth, the officer asked a legitimate clarifying question.” By any measure, this is an unreasonable determination of the facts. The problem with the California Court of Appeal’s ruling is that, in point of fact, the officer did not ask Anderson “what he meant.” Rather, he feigned ignorance of what the Fifth Amendment is. One of the stated reasons for Miranda’s requirement that officers inform suspects of their rights is to “show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.” Miranda v. Arizona, 384 U.S. 436, 468 (1966). Instead of asking a question aimed at clarifying Anderson’s meanings, the 30 officer pretended not to know about the very rights he informed Anderson of at the outset. The California Court of Appeal’s ruling that the officer asked a legitimate clarifying question is an unreasonable determination of the facts, and resulted in a decision that is contrary to Miranda. Having failed to clarify whether Anderson was exercising his right to terminate questioning, the officers could not lawfully continue the interview. Under Miranda, anything Anderson said after that point should have been suppressed. 384 US. at 479. It is for this reason that I would reverse the district court’s denial of the writ. BEA, Circuit Judge, concurring in part, dissenting in part: I concur in the majority’s holding that Anderson unambiguously invoked his privilege against self- incrimination under the Fifth Amendment to the United States Constitution. Anderson repeatedly invoked his right to remain silent—“I don’t even want to talk about this no more”; “I’m through with this” and “I plead the fifth”—yet the police did net honor Anderson’s right to remain silent until he finally requested an attorney. Only at that point did the police do what they should have done in the first—cease the interrogation.” Given that Anderson 1. Specifically. the conversation went as follows: Defendant Jerome Anderson: I’d like to have an attorney present. 3] requested that the interrogation cease three times in rapid succession, no reasonable officer could have understood anything other than that Anderson wanted the interrogation to stop. Further, I agree with Judge Silverman that Officer O’Connor’s response, “Plead the Fifth, what’s that?” was not a genuine attempt to clarify whether Anderson wanted to invoke his right to remain silent. Where I part company with the majority’s analysis is section V, where the majority concludes: We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s _ purported re-initiation of the interrogation. Doing so would eviscerate the mandate to “scrupulously honor[]” the invocation of Miranda rights. We understand the phrase “scrupulously honor” to have practical meaning. For the “right to remain silent” to have currency, there must be some silence. The interrogation must stop for some period of time. See Miranda, 384 U.S. at 473-74; Mosley, 423 U.S. at 103-04. Although the Supreme Lt. Harry Bishop: Okey [src] Detective Ron Clemens: OK fine. Anderson: Sorry, man. Bishop: No, don’t apologize. Detective Tom O’Connor: okay, 7-12-97, about 22:45, ten forty-five, uh, p.m. on Saturday. This is it. The police then turned the tape recorder off and stopped the interrogation. 32 Court has yet to tell us how long the break in questioning must last, in this case there was no cessation at all. Because the interrogation was continuous to that point, we need not determine whether Anderson waived his right to counsel after ° viewing a videotape of his alleged accomplice nor do we need to address his coercion claim. Majority Op. at 1397-98. The reason I disagree is that the record shows the police did stop the interrogation after Anderson requested an attorney, and before Anderson himself re- initiated the conversation, as explained below. All this occurred before Anderson confessed to the murder. Thus, I conclude it was not error at all to admit his confession at trial, and the California Court of Appeal’s denial of his petition for writ of habeas corpus was not contrary to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Approximately two hours and fifteen minutes into the interview, after Anderson was shown the videotape of his co-defendant Abe Santos saying Anderscn was the one who shot Robert Clark, Anderson said, “I’d like to have an attorney present.” The interrogating officers then did what they should have done back when Anderson first said, “I don’t even wanna talk about this no more”: they stepped the interrogation and turned the tape recorder off. Anderson had not confessed to the murder of Clark at this point. But then Anderson changed his mind and re- initiated the conversation himself. The police advised Anderson four separate times that they could not speak 33 with him because he had invoked his right to counsel, and five separate times Anderson insisted he wanted to talk to Lt. Harry Bishop saying in relevant part: Anderson: Oh, man, I want to talk to you. I need, I need to talk to you Harry. ... Okay, I-I was just jokin’. I don’t wanna talk—Or I want to talk to Harry, the bishop. You know the thing about the attorney, is... is wrong or whatever, I don’t need an attorney. Is that fair to say so [you] guys don’t get busted outta your jobs? ... I don’t want an attorney, I’ve changed my mind. The officers were careful to ask clarifying questions to discern whether Anderson was making a knowing, intelligent and voluntary waiver of his rights to counsel and to remain silent: Officer Brad McDonald: Okay. Has anybody in this room promised you anything? Anderson: No, sir. McDonald: Has anybody in this room threatened you for anything at all? Anderson: No, sir. McDonald: Do you feel intimidated by anybody in this room? Anderson: No, sir. McDonald: Do you feel that-Has anybody in Anderson: McDonald: Anderson: McDonald: Anderson: McDonald: Anderson: McDonald: Anderson: McDonald: Anderson: McDonald: this room, told you that if you didn’t talk with us, or you did talk to us, that something’ good was gonna happen? No, sir. Okay, so you’ve made the decision, that you want to talk to us and you do not want an attorney, is that correct? [Pause] Yes, sir. That’s absolutely correct, now you kinda hesitated a little bit... Well... You don’t want an attorney... Yes, sir. .. right herein this room .. . Yes, sir. .. right now, is that correct? Yes, sir. 3 Okay. An’ my name is Brad McDonald an’ these guys have probably told ya’ I’m the boss, right? 35 Anderson: Uh, no, sir, it’s not McDonald: Okay, but I am. Anderson: Okay. McDonald: Okay. Then I think we’re okay, I think he’s unlawyered [sic]. Now what do you want to talk to Harry about? Anderson: About ...I guess the murder of Robbie Clark. Anderson then eventually confessed to fatally shooting Robbie Clark. This was a clear waiver of both Anderson’s right to counsel, and his right to remain silent. Two cases are instructive. In Edwards v. Arizona, 451 U.S. 477, 481- 84 (1981), Edwards was convicted of robbery, burglary, and first-degree murder after his confession was entered into evidence. After being read his Miranda rights, Edwards stated, “I want an attorney before making a deal.” At that point, all questioning ceased. Id. at 479. The next day, two different detectives came to question Edwards in jail. When he was told they were there, Edwards told the jail guard, “he did not want to talk to anyone.” Jd. The guard told Edwards he was obligated to talk to the detectives. Jd. The detectives then advised Edwards of his Miranda rights again, and he agreed to talk to them, but said he did not want the discussion taped. Edwards then implicated himself in the crime after being confronted with the statement of 36 a co-defendant who had implicated him. Jd. The Arizona Supreme Court affirmed his conviction and held Edwards had invoked both his right to remain silent and his right to counsel, but had waived both rights when he voluntarily gave his statement to the detectives after they informed him again of his Miranda rights. Jd. at 480. The Supreme Court reversed and held the use of Edwards’s confession violated his Fifth Amendment rights as construed in Miranda. The Court held that when an accused requests an attorney, he may not be questioned unless an attorney has been made available or “the accused himself initiates further communication, exchanges, or conversation with the police.” Id. at 485. Any waiver after an invocation of the right to remain silent or the right to an attorney must not only be voluntary, but must also “constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.” Jd. at 482. Although the police appeared the day after Edwards had requested an attorney, the time elapsed between interrogations was not a factor the Court considered in determining the admissibility of his confession. The crucial factors were whether the second interrogation was initiated by Edwards (it was not); and, whether such initiation was voluntary (it was not, because the jail guard told Edwards he was required to speak to the police). On the other hand, the later case of Oregon uv. Bradshaw, 462 U.S. 1039, 1045-46 (1983), clarifies how an accused who has invoked his right to counsel can initiate a discussion and validly waive his rights to counsel and to remain silent. During the investigation 37 of the death of a person whose body had been found in Bradshaw’s wrecked pickup truck, Bradshaw was questioned at the police station. Bradshaw was advised of his Miranda rights. He was arrested for furnishing liquor to the victim, a minor, and again advised of his Miranda rights. Id. at 1041-42. Bradshaw denied he was driving the truck and asked for an attorney. Jd. Later that same day, while being transported in custody from the police station to a jail, Bradshaw asked a police officer, “Well, what is going to happen to me now?” Id. at 1042. The officer answered that Bradshaw did not have to talk to him and Bradshaw said he understood. They then discussed where Bradshaw was being taken and the offense with which he would be charged. The officer suggested that Bradshaw take a polygraph examination, which he did, after another reading of his Miranda rights. Id. When the polygraph examiner told Bradshaw he did not believe Bradshaw was telling the truth, Bradshaw recanted his earlier story and admitted that he had been driving the truck in question and that he had consumed a considerable amount of alcohol and passed out at the wheel of the truck before it left the highway. Jd. Bradshaw was charged with first-degree manslaughter, driving while under the influence of intoxicants, and driving while his license was revoked. His motion to suppress his statement was denied, and he was found guilty after a bench trial. Jd. The Oregon Court of Appeals reversed, holding the inquiry Bradshaw made of the police officer while being transferred to jail did not “initiate” a conversation with the officer and therefore the statements growing out of 38 this conversation should have been excluded from evidence under Edwards v. Arizona. Id. at1042-43. The Oregon Supreme Court denied review, without writing an opinion on the merits. On direct appeal, the Supreme Court reversed, holding that by asking “Well, what is going to happen to me now?”, Bradshaw “initiated” a further conversation. Id. at 1045. His statement evinced a willingness and a desire for a generalized discussion about the investigation. Id. Because there was no violation of the Edwards initiation rule, the next inquiry was whether, in light of the totality of the circumstances, Bradshaw made a knowing and intelligent waiver of his right to have counsel present. The trial court, based on its first-hand observation of the witnesses, found a waiver and the Supreme Court found no reason to dispute that finding. Id. at 1045-47. Here, Anderson himself initiated the conversation when, after being told by the police that they could no longer talk to him, he said, “Oh man, I want to talk to you. I need, I need to talk to you Harry [Lt. Bishop].” Anderson also made a knowing and intelligent waiver of his right to have counsel present when he said, “I don’t want an attorney; I’ve changed my mind” and he wanted to talk to the police officers “about the murder of Robbie Clark.” Itis unclear how long the interrogation was stopped after Anderson requested an attorney, and before Anderson asked to speak with Lt. Bishop. The record implies it did not appear to be a long period of time. 39 Although the Supreme Court has held the interrogation must stop for some period of time before a suspect can waive a properly invoked Miranda right, that amount of time has never been specified. In Bradshaw, we know the time was not long because when he re-initiated the conversation with the officer, Bradshaw was being transported from the police station to the jail shortly after he had requested an attorney. 462 U.S. at 1042. Even though not much time had elapsed since Bradshaw had requested an attorney, the Court had no problem finding Bradshaw was the one who re-initiated the conversation. There is no clearly established federal law mandating a particular amount of time the break in the interrogation must last. We have recently been reminded that where there is no such clearly established federal law, as determined by the Supreme Court of the United States, we are not allowed to invent such law. See Carey v. Musladin, 127 8S. Ct. 649, 653 (2006) Hence, the relevant fact here is that Anderson re- initiated the conversation, not the duration of the break in the conversation. Given that Anderson validly waived his right to counsel and his right to remain silent before he confessed, the admission of his confession was not error, and the California Court of Appeal’s denial of his petition for writ of habeas corpus was not contrary to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). For this reason, I respectfully dissent. TALLMAN, Circuit Judge, with whom CALLAHAN, Circuit Judge, joins, dissenting: 40 Lewis Carroll was right: “When I use a word . .. it means just what I choose it to mean, neither more nor less.” Lewis Carroll, Alice’s Adventures in Wonderland 163 (Donald J. Gray ed., W.W. Norton 1973) (1871). My colleagues in the majority fixate on the words “plead the Fifth” lifted in isolation from a portion of the transcribed interview without giving the required level of deference to the trial court’s findings of fact after an evidentiary hearing, which included the entire tape recording and the testimony of the interrogators. No one disputes that Jerome Alvin Anderson, a known felon on parole, admitted to killing his acquaintance and friend, Robert Clark: Anderson admitted, “I shot (Clari.].” Nor does anyone dispute that Anderson answered questions for nearly two and one-half hours before making the statement, “I plead the Fifth.” The California courts examined Anderson’s statement in the full context of his confession. Following an evidentiary hearing, the Shasta County Superior Court Judge made a factual finding that “while the defendant articulated words that could, in the isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview.” (Emphasis added). In affirming the trial court’s decision to deny Anderson’s motion to suppress his later confession because it was knowing and voluntary, the California Court of Appeal neither unreasonably applied clearly established Supreme Court precedent, nor made an unreasonable determination of facts. The state courts’ conclusion that Anderson’s comments were ambiguous in context was not an unreasonable application of clearly established Supreme Court precedent. Nor was their conclusion that the detective’s follow-up question, “Plead the Fifth. What’s 4] that?,” was a permissible clarification question an unreasonable determination of fact. I respectfully dissent. . I We may grant habeas relief only if the California Court of Appeal acted contrary to or unreasonably applied clearly established Supreme Court precedent, or made an unreasonable determination of facts. See 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003). “[C]learly established Federal law under § 2254(d)(1) [(the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’))] is the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer, 538 U.S. at 71-72 (internal quotation marks omitted). The Court has stated that a “state court decision is contrary to... clearly established [Supreme Court] precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme _ Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [its] precedent.” /d. at 73 (internal quotation marks omitted). There is an open question in Supreme Court jurisprudence on issues involving the invocation of a suspect’s Fifth Amendment right to remain silent. Clearly established Supreme Court precedent in the arena of the right to remain silent is Miranda v. ‘Arizona, 384 U.S. 436 (1966), and Michigan v. Mosley, 423 U.S. 96, 101 (1975). In Miranda, the Supreme Court held that “[{iJf [an] individual indicates in any 42 manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 385 U.S. at 473-74. Once a defendant has invoked his. right to remain silent, that right must be: “scrupulously honored.” Mosley, 423 U.S. at 103-04. While the Supreme Court has addressed the substance of the right to remain silent in Miranda and Mosley, at no time has the Court addressed how that right is to be invoked. In comparison, under clearly established Supreme Court precedent, a suspect’s statements to invoke his . Fifth Amendment right to counsel under Miranda must be clear and unequivocal. See Davis v. Alaska, 512 U.S. 452, 459 (1994). The determination of whether the suspect clearly invoked his right to counsel requires an objective inquiry. Jd. at 458-59. The suspect must, “at a minimum, [give] some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Jd. at 459 (internal quotation marks omitted). A statement is ambiguous when a “reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Jd. (first emphasis added). The United States Supreme Court has never declared its right to counsel principles applicable to invoking the right to silence, and under AEDPA that precedent was not “clearly established” when the California Court of Appeal rendered its decision. See Bui v. Dipaolo, 170 F.3d 232, 239 (1st, Cir. 1999) (recognizing that Davis was concerned only with the right to counsel, and not the right to remain silent). Indeed, in prior cases, we have declined to determine 43 whether the rule in-Davis when invoking the right to counsel applied with equal force to the right to remain silent. See Arnold v. Runnels, 421 F.3d 859, 866 n.8 (9th Cir. 2005); United States v. Soliz, 129 F.3d 499, 504 n.3 (1997), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc) (per curiam); Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996). Other circuits have made that leap. See, e.g., Arnold, 421 F.3d at 870 & n.1 (Callahan, J., dissenting) (collecting cases). | In circumstances where there is no “clear-cut Supreme Court rule that certain magic words automatically bring all questioning to a halt-regardless of the circumstances surrounding the interrogation,” Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir. 2006), reh’g en banc granted, 486 F.3d 1155 (2007), we simply canno’ say that the California Court of Appeal unreasonably applied clearly established Supreme Court precedent. See Carey v. Musladin, 127 S. Ct. 649, 654 (2006) (concluding that the state court’s determination was not an unreasonable application of Supreme Court precedent because there was no Supreme Court precedent addressing that area of law). Invoking the lyrics of a popular Country-Western song in lieu of Supreme Court authority is not good enough under AEDPA. Nor can we grant habeas relief because, when lacking clearly established Supreme Court precedent, - the California Court of Appeal looked to Supreme Court law in another context for guidance. In holding that Anderson’s statement was ambiguous, and that the detective’s follow-up question could reasonably be interpreted as a “legitimate clarifying question,” the 44 California Court of Appeal applied the Supreme Court’s precedent in Davis. It looked at the totality of the circumstances to determine that a reasonable officer could have understood only that Anderson may have intended to invoke his Fifth Amendment right to remain silent. See Davis, 512 U.S. at 459. Given the lack ofa holding from the Supreme Court addressing invocation of the Fifth Amendment right to remain silent, it cannot be said that the California Court of Appeal applied a standard that was “contrary to” clearly established Supreme Court precedent. Cf Musladin, 1275S. Ct. at 654. II Having failed to heed AEDPA and to acknowledge the lack of clearly established Supreme Court authority on invoking one’s Fifth Amendment right to silence, the majority proceeds to fault the California courts for considering Anderson’s statement in the context of the interview. Maj. Op. at 1389. Despite the majority’s misconceptions, we simply cannot pluck the words “I plead the Fifth” out of the transcript and declare we have an unambiguous statement. See Maj. Op. at 1389 (“Using ‘context’ to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law.”). It defies common sense to determine what an objectively reasonable officer would have understood without looking at the totality of the interview. See Davis, 512 US. at 459. As Judge Silverman aptly displays, see Silverman Concurrence at 1399, when considered in context, the state courts reasonably concluded that there is 45 ambiguity in Anderson’s statement.’ While the | majority may disagree with the conclusion, that is simply insufficient to declare the California Court of Appeal’s holding “unreasonable.” We have been told before that objectively unreasonable means something more than we think the state courts were wrong. “[A]n unreasonable application of federal law is different from an incorrect application.” Williams v. Taylor, 529 U.S. 362, 410 (2000); see also Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007) (stating that under AEDPA the petitioner must meet the “substantially higher threshold” of unre2sonableness); Brown v. Payton, 544 U.S. 133, 143 (2005) (denying AEDPA relief because “[e]ven on the assumption that [the state court’s] conclusion was incorrect, it was not unreasonable”); Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam) (“We may not grant respondent’s habeas petition .. . if the state court simply erred in concluding that the State’s errors were harmless. .. .”); Lockyer, 538 U.S. at 75 (reversing us because, by defining “unreasonable application” as “clear error,” we “fail[ed] to give proper deference to state courts by conflating error (even clear error) with unreasonableness”); Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam) (reversing us because we failed to observe the distinction between an incorrect application and an unreasonable application). Therefore, even if we could grant habeas relief in 1. Where I part company with my brother Silverman is in his conclusion that the sheriff's detective was being sarcastic and already understood what Anderson meant by “pleading the Fifth” when he asked for clarification. See infra, § III. In the face of the trial judge’s factual determination that an ambiguity existed triggering the detective’s justification for seeking clarification, AEDPA dictates that we defer to the trial court. 46 the absence of clearly established Supreme Court precedent, I would deny the petition. The California courts’ application of Davis and its finding of ambiguity was reasonable. iil The only other way to grant Anderson habeas relief requires the majority to overrule the California Court of Appeal’s factual finding. My colleagues have to find that the state court conclusion was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). But in considering Anderson’s motion to suppress, the Shasta County trial court considered live testimony from the interrogating officers and heard the audiotapes of the confession. The California Court of Appeal then adopted the trial court’s factual finding verbatim: Given the totality of the circumstances in this matter, the court concludes that while the defendant articulated words that could, in... isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview. The interrogating officer did not continue or reinitiate the interview by posing the question. “Plead the Fifth. What’s that?” The questions can reasonably be characterized as a request for clarification or confirmation that the defendant wished to assert his right to remain silent, and nothing more. What followed is important to a determination of the question. Specifically, the defendant launched off on a discourse and, ultimately, engaged in a debate 47 without making any reference to an invocation of the right to remain silent. It was the defendant, not the interrogators, who continued the discussion. Accordingly, while words of invocation were spoken by the defendant, the court concludes that, in any case, he effectively waived the right to remain silent by what followed. Moreover, the California Court of Appeal took note of an interrogating officer’s testimony during the hearing on the motion to suppress. “[T]he interrogating officer testified he believed that in saying, “I plead the Fifth[,]” [Anderson] was simply indicating an unwillingness to discuss the details of his drug use, and not a desire to terminate the interrogation.” This is not a situation where a suspect clearly states his or her intent (such as when a witness invokes his Fifth Amendment right to refuse to answer a specific question at trial). Cf. Arnold, 421 F.3d at 861-62 (finding that Arnold unequivocally invoked his right to remain silent when he told the officers that he did not want to talk on tape). Instead, in response to a direct question about his drug use, Anderson, after willingly answering questions about the murder for two and one- half hours, responded “I plead the Fifth.” The officers did not respond by asking Anderson more questions about his drug use. Rather, the officer asked, “Plead the Fifth. What’s that?” Having considered all of the evidence, the Shasta County Superior Court found as a matter of fact that Anderson did not intend to end the interview and that the officers asked a legitimate clarifying question. Anderson does not challenge the state court’s fact-finding process, and he has failed to rebut the trial court’s factual finding by clear and 48 convincing evidence, as he must under AEDPA. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). Admittedly, the detective could have phrased his clarifying question differently, and perhaps he should have.uttered it with less sarcasm, but a poorly-phrased question without more is not grounds to grant federal habeas corpus relief. AEDPA mandates comity and deference to California’s decision that Anderson’s confession was voluntary. Rejecting it, the majority decrees that a murderer “is to go free because the constable has blundered.” See People v. Defore, 242 N.Y. 13, 21 (1926) (Cardozo, J.). I respectfully dissent. APPENDIX B FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JEROME ALVIN ANDERSON, No. 04-17237 Petitioner-Appellant, D.C. No. CV-00-002494- WBS C.A. TERHUNE, Warden, OPINION Respondent-Appellee. V. Appeal from the United States District Court for the Eastern District of California William B. Shubb, Chief Judge, Presiding Submitted December 5, 2005* San Francisco, California Filed November 8, 2006 Before: Alex Kozinski and M. Margaret McKeown, Circuit Judges, and Michael R. Hogan** District Judge. Opinion by Judge Hogan; Dissent by Judge MeKeon —-- * This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P 34(a)(2). ** The Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation. SUMMARY Criminal Law and Procedure/Habeas Corpus The court of appeals affirmed a judgment of the district court. The court held that a state court’s conclusions that a defendant’s statements that “I don’t want to talk about this no more,” and “I plead the fifth,” were ambiguous; and that the interrogating officer’s retort—“Plead the fifth. What’s that?”-sought clarification, were not unreasonable under the Antiterrorism and Effective Death Penalty Act (AEDPA). Appellant Jerome Anderson, who was convicted of special circumstance murder in California state court and unsuccessful in his state court appeals, petitioned for a writ of habeas corpus in federal district court on the grounds that (1) he was denied his constitutional right to remain silent; and (2) he was denied due process by the introduction of his involuntary confession into evidence, and by the exclusion of evidence of coercion in the interrogation process. Anderson claimed that the interrogating officers coerced his confession because they withheld basic needs, such as cigarettes and warm clothing, until he agreed to talk. The state court concluded that Anderson’s statements to police while in custody that “I don’t want to talk about this no more,” and “I plead the fifth,” were ambiguous; and that the interrogating officer’s retort—“Plead the fifth. What’s that?”—sought clarification. Once Anderson stated “I'd like to have an attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, Anderson continued the conversation and asked what was going to happen to him. In response to the officers’ statements that they could not talk to him, Anderson clarified that he was just joking and stated “I don’t want an attorney.” The district court denied Anderson’s petition. Anderson appealed. [1] If a suspect indicates in any manner during questioning that he wishes to remain silent, interrogation must cease. Any statement taken after invocation of the privilege would constitute the product ‘ of compulsion. However, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants to invoke the privilege. [2] Anderson arguably invoked his right to remain silent on two occasions when he stated, “I don’t want to talk about this no more,” and, “I plead the fifth.” Anderson did not express a desire to remain silent in response to the clarifying question. [3] To reverse under AEDPA, the court of appeals would have to find that the state court’s factual findings were unreasonable, and Anderson rebutted them with clear and convincing evidence. Or, in the alternative, the court of appeals would have to hold that this determination was a question of law, and the state court’s decision unreasonably applied clearly established federal law. Namely, there would have to be some clear- cut Supreme Court rule that certain magic words automatically bring all questioning to a halt—regardless of the circumstances surrounding the interrogation. Here, neither was the case. [4] The state court found, for better or for worse, that Anderson’s attempted invocation of his right to remain silent was ambiguous and that the officer’s following question legitimately sought clarification. Absent a bright-line rule from the “ 9 + ‘ ., ond, — a a ree fa aa _ Ee ee I I ee A SE OC Ae Ea Supreme Court, the state-court conclusion was a reasonable determination of the facts. [5] Once Anderson stated “I’d like to have an attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, Anderson unilaterally continued the conversation and asked what was going to happen to him. Accordingly, the interrogating officers were not prohibited from further questioning. In response to the officers’ statements that they could not talk to him, Anderson clarified that he was just joking and stated “TI don’t want an attorney.” Therefore, Anderson validly waived his right to counsel. _ {6] The record did not support a finding of .an involuntary confession. [7] Anderson was not prevented from presenting evidence of the physical and psychological environment that yielded the confession. Exclusion of purported expert testimony of Anderson’s self-image and other aspects of the voluntariness of the confession, if error, was harmless. The judgment of the district court had to be affirmed. Judge McKeown dissented, writing that it was rare to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent; under even the narrowest construction of AEDPA, the state court erred in failing to recognize this constitutional violation. COUNSEL Charles M. Bonneau, Sacramento, California, for the petitioner-appellant. Bill Lockyer, Attorney General; Robert R. Anderson, Chief Assistant Attorney General; Mary Jo Graves, Senior Assistant Attorney General; Stephen G. Herndon, Supervising Deputy Attorney General; Brian R. Means, Supervising Deputy Attorney General; Craig S. Meyers, Deputy Attorney General; Sacramento, California, for the respondent-appellee. OPINION HOGAN, District Judge: Petitioner, Jerome Alvin Anderson, appeals the district court’s order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Anderson chailenges his conviction of special circumstance murder on the grounds that (1) he was denied his constitutional right to remain silent; and (2) he was denied due process by the introduction of his involuntary confession into evidence, and by the exclusion of the evidence of coercion in the interrogation process. Facts Anderson and the victim, Robert Clark, were friends. On the morning of July 9, 1997, a mutual acquaintance, Patricia Kuykendall, discovered that her car had been stolen. Anderson visited Kuykendall’s apartment that day and informed Kuykendall that Clark had a habit of borrowing cars, duplicating keys and stealing them later. Anderson left to bring Clark back to Kuykendall’s apartment. Kuykendall and petitioner confronted Clark about the car. Clark denied involvement in the theft. As Kuykendall called the police, Clark left. About ten minutes later, Anderson and Kuykendall’s roommate, Abe Santos, followed after Clark. About 12:30 or 1:00 p.m. on that afternoon, an employee at Carl’s Jr. waited on three people in a white Ford Mustang at the drive-through window. The employee identified Anderson as the driver. At about 1:05 p.m. witnesses noticed a white Mustang with black trim and tinted windows on East Stillwater Road. One witness specifically saw Anderson standing behind the car and two other men standing by the car. Clark’s body was discovered by the side of East Stillwater Road at about 2:30 p.m. He had been shot in the head four times. A methamphetamine pipe lay next to him, and a cigarette lighter was in his hand. Two pieces of hamburger and a fresh cigarette butt were also near the body, as well as spent .22 shell casings. Kuykendall’s key was discovered in Clark’s pocket. A search of defendant’s car, a white Ford Mustang with black trim and tinted windows, revealed that the tire tracks found near the body were similar to the tire tracks it made. The search also revealed two live .22 rim fire casings under the seats similar to the spent casing found near Clark’s body. An analysis of the clothes Anderson wore that day revealed that three small blood stains on his shorts were consistent with Clark’s DNA and inconsistent with Anderson’s or Santos’ DNA. Authorities took defendant into custody for a parole violation on July 12, 1997, at approximately 8:00 p.m. Officers interviewed Anderson for approximately three and ahalf hours. The interrogation included the following discussion with Detective O’Connor: O’Connor: You act like you’re cryin’ like a baby, an’, you can’t cry for someone that was no good... an’ you killed him for a good reason. Anderson: No, way. I — You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. That’s wrong. That’s wrong. O’Connor: Right now, you show your remorse. Anderson: Ihavenothin’ to worry about, nothin’ to hide. That’s why I show no remorse. Nothin’ to worry about, nothin’ to hide. He was my friend, an’ there’s no way I would do it. No way [ would do It. O’Connor: Were you high that day? Anderson: No, sir. I —- probably was later on. Yes. O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O’Connor: Anderson: O'Connor: Anderson: O’Connor: Anderson: Did you have any dope with you that ... that day? No, sir. No, dope at all? What do you smoke with? I smoke with my . . . my fingers. When you smoke your dope what do you do with that? How do you smoke that? You smoke it with pipes and stuff like that. : Okay. What kind of pipes? Lines. What kind of pipes? N’ah ... I would —I- Well, what kind of pipes? Uh! I’m through with this. I’m through. I wanna be taken in custody, with my parole... Well, you already are. I wanna know what kinda pipes you have? I plead the fifth. O’Connor: Plead the fifth. What’s that? Anderson: No, you guysare wrong. You guys are wrong. You guys have — I’ve tried to tell you everything I know. As far as I know, you guys are lying, uh, making things up, extenuating and that’s not right. It’s not right. [Door opens/Closes] O’Connor: We’re not makin’ anything up. Anderson: Sir, sure you are. O’Connor: What are we makin’ up? Anderson: You’re tellin’ me that I didn’t have tears in my eyes. O’Connor: Yeah. Anderson: You’re tellin’ me, okay, that, uh, uh, Abe said I kilt (sic) him. That’s a lie. Officers then showed Anderson a videotaped interview in which Abe Santos confessed to watching defendant shoot Clark. Defendant eventually confessed. Right to Remain Silent Anderson asserts that he was denied his constitutional right to remain silent during this exchange. The state court concluded that while the defendant articulated words that could, in isolation, be viewed as an invocation of his right to remain silent, 10 given the totality of the circumstances, the defendant did not intend to terminate the interview. The state appellate court quoted the reasoning provided by the trial court: The interrogating officer did not continue or reinitiate the interview by posing the question: “plead the fifth. What’s that?” The questions can reasonably be characterized as a request for clarification or confirmation that the defendant wished to assert his right to remain silent, and nothing more. What followed is important to a determination of the question. Specifically, the defendant launched off on a discourse and, ultimately engaged in a debate without making any reference to an invocation of the right to remain silent. [t was the defendant, not the interrogators, who continued the discussion. The appellate court further reasoned that “the interrogating officer testified he believed that in saying, ‘T plead the fifth’ defendant was simply indicating an unwillingness to discuss the details of his drug use, and not a desire to terminate the interregation.” [1] The state court thus determined that the detective’s further questioning was not inappropriate. In the present case, the defendant’s comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all. By asking defendant what he meant by pleading the fifth, the officer asked a legitimate clarifying question. If a suspect indicates in any manner during questioning that he wishes to remain silent, interrogation must cease. Miranda v. Arizona, 384 US. 436, 473-74, (1966). Any statement taken after invocation of the privilege would constitute the product of compulsion. Id. at 474. However, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants [to invoke the privilege].” Davis v. United States, 512 U.S. 452, 461 (1994) (holding that the statement, “Maybe I should talk to a lawyer,” is not necessarily a request for counsel). Clarifying questions “minimize the change of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement.” /d. “If the suspect’s statement is not unambiguous or unequivocal .. . the officers have no obligation to stop questioning.” Id. 461-62. [2] Here, Anderson arguably invoked his right to remain silent on two occasions. First, he stated, “I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more,” and then he stated, “I plead the fifth.” Anderson did not express a desire to remain silent in response to the clarifying question. As noted above, the state court concluded that Anderson’s comments were ambiguous and that the interrogating officer’s question sought clarification. These are the state-court determinations we must review on appeal. 1. Anderson does net argue that this was an unequivocal invocation of his right to remain silent. 12 If this case were not before us on 28 U.S.C. § 2254 habeas review, we might be writing a very different opinion. There’s definitely more than one way to interpret Detective O’Connor’s interrogation. And, the state court’s interpretation might not be the most plausible one. But in federal habeas proceedings under AEDPA.? great deference is given to state-court factual and legal determinations. To reverse under AEDPA, we would have to find the state-court conclusion to be “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see also Rice v. Collins, 126 S. Ct. 969, 974- 76 (2006) (holding that it was not unreasonable for a state court to determine that a prosecutor’s explanations were race-neutral for Batson purposes). Further, state-court factual findings must be “presumed to be correct,” and the habeas petitioner “must rebut] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miiler-El v. Drekte, 125 S. Ct. 2317, 2325 (2005). AEDPA similarly requires us to give considerable deference to a state appellate court’s legal judgments. In reviewing questions of law, we may not reverse under AEDPA unless the state court’s decision “was contrary 2. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996) (amending 28 U.S.C. § 2254.) AE DPA “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). 13 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). This inquiry is “straightforward.” Lockyer v. Andrade, 538 U.S. 63, 74-75 (2003). We look to the Supreme Court’s “holdings, as opposed to dicta,” to determine whether clearly established federal law exists. Williams v. Taylor, 529 U.S. 362, 412 (2000). And, if clearly established federal law applies, it’s not enough for the state court to incorrectly apply the law: “[A]Jn unreasonable application of federal law is.different from an incorrect application.” Id. at 409; see also id. at 411 (“[A] federal habeas court may not issue a writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”). [3] We’re thus left with only two ways to reverse: First, we would have to find that the state court’s factual findings were unreasonable, and petitioner rebutted them with clear and convincing evidence. Or, in the alternative, we would have to hold that this determination was a question of law, and the state court’s decision unreasonably applied clearly established federal law. Namely, there would have to be some clear- cut Supreme Court rule that certain magic words automatically bring all questioning to a halt—-regardless of the circumstances surrounding the interrogation. Here, neither is the case. [4] The state court found, for better or for worse, that Anderson’s attempted invocation of his right to remain silent was ambiguous and that the officer’s 14 following question legitimately sought clarification. Absent a bright-line rule from the Supreme Court, the state-court conclusion is a reasonable determination of the facts. Right to Counsel [5] Anderson also contends that he validly invoked his right to counsel and did not subsequently waive this right prior to the confession. Once Anderson stated “I’d like to have an attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, Anderson unilaterally continued the conversation and asked what was going to happen to him. Accordingly, the interrogating officers were not prohibited from further questioning. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (holding that the question, “Well, what is goirig to happen to me?” is enough to “initiate” conversation after requesting a lawyer). In response to the officers’ statements that they could not talk to him, Anderson clarified that he was just jokin[g|” and stated “I don’t want an attorney. I’ve changed my mind.” Therefore, Anderson validly waived his right to counsel. See Jd. at 1046. Coercion Claims {6} Anderson next argues that the interrogating officers coerced his confession because they withheld basic needs, such as cigarettes and warm clothing, until he agreed to talk, exploited his mental condition brought on by chronic drug use, threatened him with the death penalty and ignored his requests to remain siient. The record does not support a finding of an involuntary confession. See United States v. Coleman, 208 F.3d 786, 15 791 (9th Cir. 2000) (heroin withdrawal and physical discomfort not enough to establish involuntariness of confession); United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (promise to recommend leniency not enough). (7] Finally, Anderson argues that the trial court improperly excluded evidence of coercion. The state court reasonably concluded that the criminal trial court did not violate the holding of Crane v. Kentucky, 476 U.S. 683, 688-91 (1986). Petitioner was not prevented from presenting evidence of the physical and psychological environment that yielded the confession. Exclusion of purported expert testimony of petitioner’s self-image and other aspects of the voluntariness of the confession, if error, was harmless. * * * The standard of review is critical here. Under AEDPA, we must give deference to state-court factual and legal determinations, which in this case are reasonable in light of the evidence presented in the state-court proceedings and the lack of clearly established rederal law to the contrary. The district court’s judgment denying Anderson’s petition for writ of habeas corpus is therefore AFFIRMED. McKEOWN, Circuit Judge, dissenting: It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely 16 an exception.” From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal] defendant says, “I plead the Fifth,” it doesn’t take a trained linguist, a Ph.D., or a lawyer to know what he meant. Here, Anderson said, “J don’t even wanna talk about this no more,” “Uh! I’m through with this,” and “T plead the Fifth.” The officer did not stop questioning but instead responded, “Plead the Fifth. What’s that?”, continued the questioning, and ultimately obtained a confession. It is rare to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent. Under even the narrowest construction of AEDPA,” the state court erred in failing to recognize this constitutional 1. As early as 1955, the Supreme Court recognized that “in popular parlance and even legal literature, the term ‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163 (1955); accord In re Johnny V., 149 Cal. Rptr. 180, 184, 188 (Cal. Ct. App. 1978) (holding that the statement “I'll take the fifth” was an assertion of the Fifth Amendment privilege.) 2. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), a writ of habeas corpus may not be granted unless the state court’s decision (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 17 violation. I respectfully dissent from the majority’s view that there was some ambiguity in Anderson’s unequivocal invocation of the Fifth Amendment such that clarifying questicns were permitted. The continued questioning violated the Supreme Court’s bright-line rule established in Miranda v. Arizona. Once a person invokes the right to remain silent, all questioning must cease: If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. 384 U.S. 436, 473-74 (1966). The expansion of legitimate clarifying questions to cover this situation is contrary to, and an unreasonable application of, clear Supreme Court precedent. Additionally, even a cursory examination of the interrogation transcript reveals that the state court made an unreasonable determination of the facts in evaluating Anderson’s Miranda claim. Anderson’s invocation was not ambiguous, and only one reasonable conclusion can be gleaned from his statements, especially his last declaration, “I plead the Fifth:” he invoked his right to remain silent and wanted to end the interrogation. 18 I. THE INTERROGATION After an initial interview about the murder, Anderson was brought to the police station for further questioning. The relevant portion of the transcript is so extraordinary that it bears repeating. Despite clear and repeated invocations of his right to remain silent, the officers continued to question Anderson about the murder: _ Officer: | You act like you’re cryin’ like a baby, an’, you can’t cry for someone that was no good... an’ you killed him for a good reason. Anderson: No, way. I - You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. | That’s wrong. That’s wrong. Officer: | Right now, you show your remorse. Immediately after this exchange, the officer continued to interrogate Anderson regarding his drug use on the day of the murder, including whether Anderson had used pipes. This questioning is significant because the murder victim was found with a pipe next to him. The entire conversation was about the murder. In response to this questioning, Anderson unambiguously indicated that he wanted to end the interrogation by stating that he was “through with this,” wanted to “be taken into custody” and “I plead the Fifth”: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: 19 I have nothin’ to worry about, nothin’ to hide. That’s why I show no remorse. Nothin’ to worry about, nothin’ to hide. He was my friend, an’ there’s no way I would do it. No way I would do it. Were you high that day? No, sir. I -— probably was later on. Yes. Did you have any dope with you that ... that day? No, sir. No, dope at all? What do you smoke with? I smoke with my ... my fingers. When you smoke your dope what do you do with that? How do you smoke that? You smoke it with pipes and stuff like that. Okay. What kind of pipes? Lines. What kind of pipes? Anderson: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: Anderson: Officer: 20 N’ah...I would-—I- Well, what kind of pipes? Uh! I’m through with this. [I’m through. I wanna be taken in custody, with my parole... Well, you already are. I wanna know what kinda pipes you have? I plead the [F]ifth. Plead the [F]ifth. What’s that? No, you guys are wrong. You guys are wrong. You guys have — I’ve tried to tell you everything I know. As far as I know, you guys are lying, uh, making things up, extenuating and that’s not right. It’s not right. [Door opens/Closes] We’re not makin’ anything up. Sir, sure you are. What are we makin’ up? You’re tellin’ me that I didn’t have tears in my eyes. Yeah. 21 Anderson: You're tellin’ me, okay, that, uh, uh, Abe said I kilt (sic) him. That’s a lie. The questioning continued until Anderson asked for alawyer: “I’d like to have an attorney present.” At that juncture, the police turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officer concluded that Anderson wanted to reinitiate the discussion. The questioning, which took place over a three-hour period, led to a confession by Anderson. Il. IN CLEAR VIOLATION OF MIRANDA, THE STATE COURT UNREASONABLY CONCLUDED THAT ANDERSON’S INVOCATION (“I PLEAD THE FIFTH”) WAS AMBIGUOUS Against this backdrop, the state court accurately recognized that Anderson unambiguously invoked his right to remain silent when he stated, “I plead the Fifth,” but then went on to eviscerate that conclusion by stating that the comments were “ambiguous in context”: In the present case, the defendant’s comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all. By asking defendant what he meant by pleading the fifth, the officers asked a legitimate clarifying question. Using “context” to make an unambiguous invocation ambiguous defies both common sense and 22 established Supreme Court law. Although the Supreme Court has observed that in invoking a constitutional right, “a suspect need not ‘speak with the discrimination of an Oxford don,’” Davis v. United States, 512 U.S. 452, 459 (1994) (quoting id. at 476 (Souter, J., concurring)), Anderson would meet even this erudite standard. This is not a case where the officers or the court were left scratching their heads as to what Anderson meant. Nothing was ambiguous about the statement “I plead the Fifth.”” That invocation should have brought an immediate end to questioning. Miranda, 384 US. at 473. Instead of honoring the request, the interrogating officers decided to “play dumb,” hoping to keep Anderson talking by responding, “Plead the Fifth. What’s that?” The effort to keep the conversation going was almost comical. The officer knew what “I plead the Fifth” meant. It is baffling that the state court determined that “[b]y asking defendant what he meant by pleading the Fifth, the officers asked a legitimate clarifying question.” Nothing needed clarification. What about the words “I plead the Fifth” would be unclear, ambiguous, or confusing to a reasonable officer? See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (holding in the context of the invocation of the right to counsel that “[{iJnterpretation is only required where the defendant’s words, understood as ordinary people wv ould 3. See Arnold v. Runnels, 412 F.3d 859, 866 (9th Cir. 2005) (holding, with respect to a defendant who said that he did not want to talk on tape, that “it is difficult to imagine how much more clearly a layperson ... could have expressed his right to remain silent.”). understand them, are ambiguous”). Rather, the officer hoped Anderson would explain more about the murder, the exact topic he did not want to talk about. Thev knew that continuing the interrogation was “reasonably likely to elicit an incriminating response” from Anderson. Rhode Island v. Innis, 446 U.S. 291, 303 (1986). And they were right. The Supreme Court has countenanced clarifying questions only to ascertain whether the suspect actually invoked the right to remain silent. See, e.g., Miranda; 384 U.S. at 444-45 (focusing only on the threshold question of whether the accused “indicate[d] in any manner and at any stage or the process that he wish[ed] to consult with an attorney before speaking” when deciding whether police had honored their Fifth Amendment rights); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (focusing on whether accused had actually “expressed his desire” for, or “clearly asserted” his invocation of his Fifth Amendment rights); Smith v. Illinois, 469 U.S. 91, 95 (1984) (holding that “[t]hts case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance”). Ignoring this principle, the state court found that the comments were ambiguous “because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.” While the majority defers to this far-fetched reasoning, the rationale for the state court decision falls of its own weight. The police did not ask Anderson what subject he did not want to discuss; nor did any of their follow-up questioning address this topic. The state court’s characterization is a fanciful reimagining of the 24 colloquy between Anderson and the police, and under AEDPA, certainly an unreasonable determination of the facts. Significantly, the question can hardly be characterized as one to clarify or double-check whether Anderson invoked his right to remain silent, the only legitimate clarifying inquiry authorized by Supreme Court precedent. Smith, 469 U.S. at 95. The state court’s conclusion that “[iJt 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.” Miranda, 384 U.S. at 474. Finally, even taken on its own terms, the majority’s factual hair- splitting is mistaken. It makes no sense to split hairs and say that maybe, just maybe, Anderson wanted to talk about the murder and not about his drug use because, in fact, the drug use was inextricably intertwined with the murder. It is precisely this kind of hair-splitting that the Supreme Court wanted to avoid when it fashioned the bright-line rule in Miranda. Davis, 512 U.S. at 461 (noting that the benefit of the bright-line rule is the “clarity and ease of application” that can be applied by officers in the real world without “unduly hampering the gathering of information” by forcing them to make “difficult judgment calls” with a “threat of suppression if they guess wrong”). No guess work was required here. But under the majority’s interpretation of Miranda and its progeny, every time a suspect unequivocally invokes the right to remain silent, the police can ask follow-up questions to clarify whether he really, really wants to invoke the right and to parse the subject 25 matter—“what specifically do you not want to talk about?” The majority’s holding allows the police to turn the Fifth Amendment into a game of “Twenty Questions,” permitting the police to continue the interrogation and forcing the suspect to take a multiple choice quiz. Sucha practice is tantamount to endless re- interrogation. Where the initial request to stop the questioning is clear, “the police may not create ambiguity in a defendant’s desire by continuing to question him or her about it.” Barrett, 479 U.S. at 535 n.6 (Brennan, J., concurring). By parsing Anderson’s invocation into specific subjects, the police “failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Michigan v. Mosley, 423 U.S. 96, 105-06 (1975). The net result is that such follow-up questions allow “the authorities through ‘badgerl[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—[to] wear down the accused and persuade him to incriminate himself.” Smith, 469 US. at 98. Looking at this case through the AEDPA lens of deference does nothing to change my conclusions. The state court’s decision to ignore an unambiguous declaration of the right to remain silent is directly contrary to Miranda. To the extent the question is one of interpretation of Miranda and related Supreme Court precedent, the state court’s interpretation is flatly unreasonable. See Runnels, 421 F.3d at 867. And to characterize Anderson’s statements as ambiguous was certainly an unreasonable finding of fact. UI. THE STATE COURT ACTED CONTRARY TO SUPREME COURT PRECEDENT BY USING ANDERSON’S RESPONSES TO RE- INTERROGATION TO FIND A VALID WAIVER : The state appellate court attempted to bolster its conclusion about Anderson’s statements by claiming that he waived his right to remain silent in continuing to answer police questions after he stated, “I plead the Fifth”: By continuing to talk to the police officers, defendant demonstrated a willingness to continue to discuss the case .... Accordingly, while words of invocation were spoken by the defendant, the court concludes that, in any case, he effectively waived the right to remain silent by what followed. Put another way, the state court suggests that because the officers ignored Anderson’s unequivocal invocation of the Fifth Amendment, their questioning caused him to keep talking, resulting in a waiver of his right to remain silent. This analysis directly contravenes clear Supreme Court precedent, thereby providing another ground upon which to grant the writ under § 2254(d)(1). Smith mandates that all questioning must immediately cease once the right to remain silent is invoked, and that any subsequent statements by the defendant in response to continued interrogation cannot be used to find a waiver or cast ambiguity on the earlier invocation. The Supreme Court’s somewhat lengthy but crystal clear recitation of this principle bears repeating: Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together. .. . With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver “cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.” Using an accused’s subsequent responses to cast doubt on the adequacy of the initial request itself is even more intolerable. “No authority, and no logic, permits the interrogator to proceed ...on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.” Smith, 469 US. at 98-99 (internal citations omitted). The prejudice from Anderson’s confession cannot be soft pedaled, and the error was not harmless. Brecht v. Anderson, 507 U.S. 619, 623 (1993). I would grant the writ of habeas corpus. APPENDIX C FILED September 28 2004 Clerk, U.S. District Court Eastern District of California By Deputy Clerk IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JEROME ALVIN ANDERSON, Petitioner, No. CIV S-00-2404 WBS DAD P Vs. C. A. TERHUNE, Respondent. FINDINGS & RECOMMENDATIONS / Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. $2254. Petitioner challenges his 1998 conviction on the charge of special circumstance murder. He seeks relief on the grounds that: (1) he was denied his constitutional right to remain silent when interrogating officers ignored both his request to remain silent and his demand for an attorney and instead continued interrogating him; (2) he was denied due process by the introduction of his involuntary confession into evidence; (3) he was denied due process by the exclusion from his trial of evidence of coercion in the interrogation process; and (4) the California statute defining the special circumstance of lying in wait is unconstitutionally vague and overbroad. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner’s application for habeas corpus relief be denied. PROCEDURAL BACKGROUND On November 25, 1997, an information was filed in the Shasta County Superior Court charging petitioner with murder, in violation of California Penal Code § 187(a) (count [) and possession of a firearm by a felon, in violation of California Penal Code § 12021(a)(1) (count II). (Clerk’s Transcript on Appeal (CT) at 254- 55.) It was also alleged that: (1) petitioner had previously served two prior prison terms, within the meaning of California Penal Code § 667.5(b); (2) petitioner personally used a firearm during the commission of the murder, within the meaning of California Penal Code §§ 12022.5(a) and 1203.06(a)(1); (3) petitioner was armed with a firearm, within the meaning of California Penal Code § 12022(a)(1); (4) petitioner committed the murder while on parole, within the meaning of California Penal Code § 1203.085(b); and (5) petitioner committed the murder while lying in wait, within the meaning of California Penal Code § 190.2(a)(15). (Id, at 256-257.) On December 1, 1997, petitioner was arraigned and on January 5, 1998, he pled not guilty and denied all of the allegations against him. (Id. at 258, 352.) On March 26, 1998, petitioner filed a motion to dismiss the information based, in part, on the ground that his confession to police was involuntary. (Id. at 371-402.) The trial judge denied that motion on April 17, 1998. (Id. at 484.) On May 8, 1998, petitioner filed a motion in limine seeking to exclude from evidence his statements to police and a motion to suppress evidence obtained as a result of the search and seizure of his car. (Id. at 519, 611.) After a hearing at which the parties presented evidence, both motions were denied ina written opinion. (Id. at 663-65, 692-702.) Jury trial commenced on July 28, 1998. (Id. at 848.) On August 13, 1998, the jury found petitioner guilty on both counts and found true all of the special allegations against him. (ld. at 906-14, 1161-67.) Subsequently, petitioner was sentenced to life without the possibility of parole on Count I, three years in prison on Count IT, and a consecutive ten-year term for the firearm use allegation. (Id. at 1197-1200; Supplemental Clerk’s Transcript on Appeal (SCT) at 6-9.) On September 16, 1998 petitioner filed his Notice of Appeal. (CT at 1201.) On May 11, 1999, petitioner filed his opening brief on appeal. (Answer, Ex. A.) The appeal was denied by the California Court of Appeal for the Third Appellate District, by order dated March 3, 2000. (Answer, Ex. B.) On April 10, 2000, petitioner filed a petition for review in the California Supreme Court. (Answer, Ex. C.) That petition was summarily denied by order dated June 21, 2000. (Answer, Ex. D.) On November 9, 2000, petitioner filed a petition for writ of habeas corpus in this court. FACTUAL BACKGROUND” Patricia Kuykendall lived in Redding with Robyn Higgins and Robyn’s boyfriend, Abe Santos. On July 9, 1997, Kuykendall discovered her car had been stolen. Around 10 a.m., defendant visited Higgins and found out about Kuykendall’s car. Defendant told Kuykendall that Robert Clark had a habit of borrowing cars, duplicating the keys, then stealing the cars later. Defendant left Kuykendall’s house to get Clark and both returned to Kuykendall’s home a few minutes later. Once there, Clark was confronted and accused of taking Kuykendall’s car. Kuykendall yelled at Clark about her missing car. Defendant accused Clark of stealing Kuykendall’s car... Although Clark denied any involvement in the theft of the car, he appeared edgy and nervous. Kuykendall left the room to call the police around lla.m. As she did so, Clark, Santos, and defendant started toward the door. Clark left, and about 10 1. See Valerio v. Boise Cascade Corp., 80 FR.D. 626, 635 n.1 (N.D. Cal. 1978) Gudicial notice may be taken of court records), aff'd, 645 F2d 699 (9th Cir. 1981.) 2. The following summary is drawn from the March 2, 2000 opinion of the California Court of Appeal for the Third Appellate District (hereinafter Opinion), at pgs. 2-7, lodged on Feb. 5, 2C01, as Exhibit B to respondent’s Answer. These facts are fairly supported by the record. minutes later defendant and Santos left, stating they were going to follow Clark. Around 12:30 or 1 p.m., an employee at the Carl’s Jr. drive-through window waited on three people in a white Mustang. She gave them four hamburgers. She remembered them because they refused to look at her or talk to her. She identified defendant as the driver, and described what he had been wearing. She could only see the legs and feet of the back seat passenger. At around 1:05 PM. Christine Coffey, who lives on East Stillwater Road, left with her husband for an appointment. As they left she noticed a white Ford Mustang with black trim and tinted windows. Willis Neely was driving on East Stillwater Road around the same time and also saw the white Mustang. He saw defendant standing behind the car. He saw two other men standing by the car who appeared to be Hispanic, but was unable to identify either of them because they kept their: heads down. Neely drove back down East Stillwater about 20 minutes later and saw the car and the same three individuals. On both occasions, Neely made eye contact with defendant. Clark’s body was discovered by the side of East Stillwater Road about 2:30 p.m. He had been shot in the head four times. A methamphetamine pipe lay between his body and his left arm. A cigarette lighter was in his right hand. Two pieces ofa hamburger and afresh cigarette butt were about 10 feet fromn the body. In his pocket was a key to Kuykendall’s car. There were spent .22 shell casings near Clark’s feet. Officers investigating the scene found spinout tire track impressions about four feet from the body. The tire tracks were distinctive because the width of one of the tires was about one-half inch Jess than the other track. The same tires left impressions about 20 feet from the body. Near those tracks were Birkenstock-type sandal footprints. A search of defendant’s car, a white Ford Mustang with black trim and tinted windows, revealed that the tire tracks found near the body were similar to the distinctive tracks made by the tires on defendant’s car. The search also turned up two live .22 rim fire casings under the seats similar to the spent casings found near the body. Defendant was first questioned on July 11, 1997. Defendant maintained he had not seen Clark after Clark left Kuykendall’s house. He gave officers the clothing and shoes he had been wearing on June 9 —a pair of black shorts, a grayish tank top, and a pair of sandals. The clothing was eventually analyzed, and three small blood stains and a blood smear were found on the shorts. The stains found on the shorts were consistent with Clark’s DNA and inconsistent with either defendant’s or Santos’s DNA. Defendant was taken into custody for parole violation on July 12, 1997, at approximately 8 p.m. After reading him his rights, officers questioned him again about Clark’s killing. At first, defendant denied any involvement in Clark’s murder. After being shown portions of a videotaped interview in which Abe Sanios confessed to watch.ng defendant shoot Clark, defendant confessed. He admitted he initially planned to kil] Clark by himself, then decided to ask Santos to help. He and Santos picked up Clark as a convenience store and drove toward a wooded area. En route, they smoked methamphetamine using Clark’s pipe. They pulled over to the side of the road, and the three of them got out of the car and talked near the rear of the car. When defendant approached Clark, Clark “didn’t have a care in the world. Just, still gettin’ high.” Clark said “no matter how hard I try, to be friends with people, or to make people friends, they’re still not gonna like me.” Then defendant shot Clark while Clark was kneeling down.” 3. Defendant gave the following rather incoherent statement regarding motive: “They were always talkin’ about how - [Sigh] he deserved to be dead for all the stuff wrong he’s done to people, an’ how can a person think up such evil schemes and plans te people, stuff and get away with it. I just thought back about everything that’s happened to me, why would it happen to me, you know, um, my wife, my kids, an’ it ... How I could still be nice to people and try to help people out an’ now I'm in a messed up situation ... . an’ I just said to myself, fuck, I’m tired of helpin’ people, I’m always getting’ burnt for it, or hurt, or somethin’ comes up an’ you know, the same people don’t just, there’s no respect .... I just know it was tough but it wasn’t abnormal. Um, outside of the normal imagination, he was doin’ it and just scared the shit outta me. So, I said, man he’s gonna, he gonna get me killed, man. He’s gonna get me killed. By tryin’ to disguise himself, as me, usin’ my clothes I guess, while I was alseep an’ stuff. An’ I don’t know, man. Blame on the black man. Was always his thing, you know. Um, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1477%3A2. Public record. Not legal advice.