FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIO DINERO SESSOMS, No. 08-17790
Petitioner-Appellant, D.C. No.
v. 2:05-cv-01221-
D. L. RUNNELS, JAM-GGH
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
September 1, 2010—San Francisco, California
Filed June 3, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge B. Fletcher
7337
SESSOMS v. RUNNELS 7341
COUNSEL
Eric Weaver (argued), Albany, California, for petitioner-
appellant Tio Dinero Sessoms.
Edmund G. Brown, Attorney General of California, Michael
P. Farrell, Senior Assistant Attorney General, Charles A.
French, Supervising Deputy Attorney General, Jeffrey D.
Firestone (argued), Deputy Attorney General, Sacramento,
California, for respondent-appellee D. L. Runnels.
7342 SESSOMS v. RUNNELS
OPINION
TALLMAN, Circuit Judge:
Petitioner-Appellant Tio Dinero Sessoms, a California pris-
oner, appeals the district court’s denial of his habeas corpus
petition challenging his California felony murder conviction.
He argues predominately that he unequivocally asserted his
right to counsel when he asked Sacramento homicide detec-
tives whether he had a right to an attorney and subsequently
told those detectives that his father had asked him to inquire
about an attorney. He also argues that even if his requests
were ambiguous the detectives had an obligation to ask him
clarifying questions prior to continuing with their interroga-
tion. Finally, he argues that the detectives violated his right to
remain silent when they interviewed him without objection
five days after he invoked his right to remain silent to differ-
ent officers from a different police department after he was
arrested. He contends that he is entitled to federal habeas
relief because any of these claimed violations required the
California state courts to suppress the incriminating statement
he made after he expressly waived his Miranda rights.
Mindful that we must review this petition through the def-
erential lens of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, we disagree.
Though some of Sessoms’s claims admittedly raise a close
question as to how we may have ruled were we reviewing his
conviction without AEDPA deference, we cannot conclude
that the decisions of the California state courts1 were “con-
trary to, or an unreasonable application of,” established
1
The parties agree that the decision of the California Court of Appeal
on January 12, 2004, was the last reasoned decision in regard to Sessoms’s
first two claims. Because the state courts denied Sessoms’s third claim
without formal opinion or comment, we review that claim independently
under AEDPA. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.
2000) (independently reviewing the record to determine whether a state
court’s unexplained decision fell within the bounds of AEDPA).
SESSOMS v. RUNNELS 7343
United States Supreme Court precedent—the showing
AEDPA requires to permit relief. § 2254(d)(1). Because Ses-
soms cannot “show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagree-
ment,” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011),
we affirm the district court’s denial of habeas relief.
I
On October 20, 1999, Sessoms and two other men entered
the Sacramento, California, residence of Edward Sherriff to
commit a burglary. During the burglary, Sherriff was choked
and stabbed to death by one of Sessoms’s accomplices. The
men then fled the scene, taking cash, jewelry, and Sherriff’s
two vehicles with them.
Shortly thereafter, Sessoms traveled to Langston, Okla-
homa, where, at the urging of his father, he surrendered to
local police on November 15, 1999. Upon arrest, Langston
police officers read Sessoms his Miranda rights and asked
whether he wanted to “make a statement.” He declined. The
Langston police did not press Sessoms any further and trans-
ported him to a jail in Oklahoma City to await extradition to
California.
Five days later, on November 20, 1999, two Sacramento
city homicide detectives, Dick Woods and Pat Keller, arrived
in Oklahoma City to question and extradite Sessoms. Sessoms
was brought to an interview room where he waited to meet
with the detectives for the first time. He was not aware that
everything in the room was being video recorded. When the
detectives entered the room, Sessoms was pleasant and polite.
He told the detectives that he was glad they had arrived
safely. The detectives were likewise pleasant and polite.
Detective Woods joked that he hoped the return flight would
be just as good.
7344 SESSOMS v. RUNNELS
Woods then introduced himself and Detective Keller. When
Woods paused to read his notes, Sessoms made the first of the
two statements at issue, asking Woods whether he had the
right to have an attorney present during the interview. Specifi-
cally, he asked, “There wouldn’t be any possible way that I
could have a — a lawyer present while we do this?” He then
explained to the detectives that his father was concerned that
some officers might attempt to switch his words around after
the fact and that his father had therefore “asked me to ask you
guys — uh, get me a lawyer.” The detectives responded by
telling Sessoms that they could record the interview to allay
those concerns. Sessoms agreed. More importantly, though,
after setting up a recording device on the table, Woods
directly addressed Sessoms’s question regarding whether he
had a right to counsel. He told Sessoms that he did have the
right to have counsel present during the interview, but—
demonstrating his understanding as to what Sessoms was
asking—emphasized that Sessoms would need to decide
whether he wanted to claim that right.2
2
The black and white record stands in stark contrast to the dissent’s
attempts to color the detectives as tricksters bent on subverting at every
turn the polite overtures of Sessoms, who our colleague paints as “a naive
and relatively uneducated 19-year-old boy.” Dissent at 7369. Contrary to
the dissent’s convenient conclusion that the detectives understood Ses-
soms’s statements to be an invocation of the right to counsel, at 7369-70,
the record demonstrates the very opposite: immediately after Sessoms
made his statements—and without the benefit of intervening years to craft
a post hoc reconstruction—Detective Woods honestly answered Ses-
soms’s question, telling him that he did in fact have the right to an attor-
ney but “it’s up — for you to decide if you want the attorney or not.” Cf.
United States v. Pheaster, 544 F.2d 353, 368 (9th Cir. 1976) (“It is also
important to note that Pheaster’s statements came as a result of an objec-
tive, undistorted presentation of the extensive evidence against him, par-
ticularly the positive identification of his fingerprint on the ninth note. . . .
[T]he questioning did not really begin until Pheaster had clearly indicated
his willingness to cooperate.”). The dissent’s statement that “[Detective
Woods] reassured Sessoms that counsel was unnecessary,” Dissent at
7369, also finds no support in the actual videotaped record, which fully
captured Woods’s conversation with Sessoms.
SESSOMS v. RUNNELS 7345
Uh, I want to back up to your question you asked
about an attorney. Um, first, before you ask ques-
tions, uh, I’m going to tell you why we’re here, just
lay it out and be up-front. And then — then I’m
going to advise you of your rights. And then it’s up
— for you to decide if you want the attorney or not.
Thereafter, the detectives explained to Sessoms what infor-
mation they had and what the other two suspects had told
them. Notably, Woods told Sessoms that he was surprised by
the fact that neither of the other suspects had chosen to invoke
their rights. He told Sessoms that they would not take his
statement without an attorney if Sessoms wanted an attorney
and added that “all attorneys . . . will sometimes or usually
advise you not to make a statement.”3 He also reiterated to
Sessoms that it was Sessoms’s choice whether he wanted
counsel or not:
I’m not trying to take any rights away from you or
anything else. What I want to do, Tio, is advise you
of your rights, make sure you understand them. Then
you make the decision if you want to talk to us or
not. — It’s not for me to make, not for [Detective
Keller] to make; it’s — it’s for you to make. Um,
have you ever been advised of your rights before?
Detective Woods then read Sessoms his Miranda rights
verbatim from a form, while Sessoms read along silently from
3
Notwithstanding the recording of what Woods actually said, the dissent
argues that Woods was in fact telling Sessoms that a lawyer would only
hurt his interests and that “it was in his best interest not to obtain counsel.”
Dissent at 7370. Because it relies on that insinuation, it is therefore unsur-
prising that the dissent fails to even acknowledge, let alone address, the
fact that Woods told Sessoms no less than three times in the span of a few
minutes that Sessoms had a right to counsel and that, before the detectives
would speak to Sessoms further, he had to choose whether to claim that
right or waive it.
7346 SESSOMS v. RUNNELS
an additional copy of the text.4 Woods asked Sessoms if he
understood each distinct right. Sessoms stated that he did.
Woods then asked, “Okay. Having these rights in mind, do
you wish to talk to us now?” Sessoms shrugged. “That’s
solely up to you,” Woods added. After pausing to think, Ses-
soms replied simply, “Let’s talk.” He then fully confessed to
his involvement in the crime.
Prior to his trial, Sessoms sought to have his confession
suppressed, claiming he had “clearly and unequivocally
requested the assistance of an attorney.” The Sacramento
County Superior Court conducted an evidentiary hearing,
heard argument, and watched the videotape of the interview.
It concluded that Sessoms’s initial statement was not an asser-
tion of his rights but a question as to whether he even had
such a right. The court noted that following Sessoms’s ques-
tion, the officers did not ask about the incident until after Ses-
soms had received his complete Miranda warnings and had
waived his constitutional rights.
4
In light of this undisputable record fact, the dissent’s attempt, Dissent
at 7368-69, 7373 n.5, to engraft Doody v. Ryan, ___ F.3d ___, 2011 WL
1663551 (9th Cir. May 4, 2011), into its reasoning is puzzling. How
Detective Woods’s actions in any way conflict with Chief Judge Kozin-
ski’s admonition in Doody that “[i]t’s not too much to ask that police
recite [Miranda warnings] as prescribed by the Supreme Court, and not
augment them in a way that will obscure their meaning and undermine
their effect,” Dissent at 7373 n.5. (quoting Doody, 2011 WL 1663551, at
*39 (Kozinski, J., concurring)), is not evident and plainly demonstrates
why the dissent stands completely alone—not even joined by Sessoms—
in its position. Simply put, the detectives did not “take a butcher knife to
Miranda.” Id. at 7369. Rather, they provided Sessoms his Miranda rights
prior to any questioning, just as our precedent requires. Berghuis v. Thom-
pkins, 130 S. Ct. 2250, 2259 (2010) (“A suspect in custody must be . . .
‘warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attor-
ney one will be appointed for him prior to any questioning if he so
desires.’ ” (quoting Miranda, 384 U.S. at 479 (emphasis added)));
Pheaster, 544 F.2d at 368.
SESSOMS v. RUNNELS 7347
Eventually, a Sacramento County Superior Court jury
found Sessoms guilty of first degree murder,5 robbery, and
burglary. Prior to sentencing, Sessoms moved for a new trial,
alleging the trial court had erred in failing to suppress his
statement. The court again heard arguments and spent hours
reviewing the videotape and transcript before concluding that
Sessoms’s initial statement was a question, not a “direct
unequivocal request to be provided with an attorney on the
spot.” After denying the motion, the Superior Court sentenced
Sessoms to life in prison without the possibility of parole.
Sessoms appealed his conviction to the California Court of
Appeal, claiming that the trial court erred by failing to sup-
press his confession in light of his request for counsel. The
Court of Appeal affirmed the trial court, finding that neither
of Sessoms’s statements were sufficiently clear that a reason-
able police officer in the circumstances would have under-
stood the statement to be a request for counsel. People v.
Sessoms, No. C041139, 2004 WL 49720, at *3 (Cal. Ct. App.
Jan. 12, 2004) (citing Davis v. United States, 512 U.S. 452,
459 (1994), Edwards v. Arizona, 451 U.S. 477, 484-85
(1981), and Miranda v. Arizona, 384 U.S. 436, 474 (1966)).
Sessoms then filed multiple state habeas petitions, claiming
he had been deprived of the effective assistance of counsel.
Each was denied. He then filed the instant federal habeas peti-
tion, which the district court denied. Following the district
court’s issuance of a certificate of appealability for his claims,
Sessoms timely appealed. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we now affirm.
II
We review de novo a district court’s denial of a state pris-
oner’s petition for a writ of habeas corpus. Murdoch v. Cas-
5
The jury found that Sessoms acted as a major participant in the robbery
and burglary that resulted in Sherriff’s death and thus found him guilty
under a felony murder theory. See Cal. Penal Code § 190.2(a), (d).
7348 SESSOMS v. RUNNELS
tro, 609 F.3d 983, 989 (9th Cir. 2010) (en banc). Like the
district court, however, we recognize that because Sessoms’s
petition for habeas corpus was filed after the enactment of
AEDPA, our review is limited by 28 U.S.C. § 2254(d), which
applies to each of Sessoms’s claims. See Anderson v. Ter-
hune, 516 F.3d 781, 786-87 (9th Cir. 2008) (en banc) (analyz-
ing pursuant to § 2254(d) the state court’s determination that
the defendant did not unequivocally invoke his right to remain
silent); Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005)
(applying § 2254(d) to accused’s claim that he was denied
effective assistance of counsel).
Section 2254(d) provides that an application for a writ of
habeas corpus shall not be granted based on a claim adjudi-
cated on the merits in state court unless the adjudication either
(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.”
The Supreme Court has explained that clearly established
Federal law “refers to the holdings, as opposed to the dicta,
of this Court’s decisions as of the time of the relevant state-
court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003)
(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Addi-
tionally, the Court has emphasized that the “contrary to” and
“unreasonable application” clauses have distinct meanings.
Williams, 529 U.S. at 405. A “state-court decision can be
‘contrary to’ th[e] Court’s clearly established precedent . . . if
the state court arrives at a conclusion opposite to that reached
by th[e] Court on a question of law.” Id. A state-court deci-
sion would also be contrary to the “Court’s clearly established
precedent if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court
and nevertheless arrives at a result different from [that] prece-
dent.” Id. at 406.
SESSOMS v. RUNNELS 7349
In regard to the “unreasonable application” prong, the
Court specified that “[a] state-court decision that correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case certainly would
qualify as a decision ‘involv[ing] an unreasonable application
of . . . clearly established Federal law.’ ”6 Id. at 407-08 (alter-
ation in original). The Court has cautioned, however, that the
“ ‘unreasonable application’ clause requires the state-court
decision to be more than incorrect or erroneous.” Lockyer,
538 U.S. at 75 (rejecting the Ninth Circuit’s application of the
clear error standard); Williams, 529 U.S. at 410.
It is not enough that a federal habeas court, in its
“independent review of the legal question,” is left
with a “ ‘firm conviction’ ” that the state court was
“ ‘erroneous.’ ” We have held precisely the opposite:
“Under § 2254(d)(1)’s ‘unreasonable application’
clause, then, a federal habeas court may not issue the
writ simply because that court concludes in its inde-
pendent judgment that the relevant state-court deci-
sion applied clearly established federal law
erroneously or incorrectly.” Rather, that application
must be objectively unreasonable.
Lockyer, 538 U.S. at 75-76 (citations omitted); see also
Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam);
6
The Court also stated that a state court decision could be unreasonable
“if the state court either unreasonably extends a legal principle from our
precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.”
Williams, 529 U.S. at 407. However, the Court declined “to decide how
such ‘extension of legal principle’ cases should be treated under
§ 2254(d)(1),” id. at 408-09, and has since made clear that the absence of
controlling Supreme Court precedent effectively insulates a state court
decision from federal review under AEDPA, Wright v. Van Patten, 552
U.S. 120, 126 (2008) (per curiam) (“Because our cases give no clear
answer to the question presented, let alone one in [the accused’s] favor,
it cannot be said that the state court unreasonabl[y] appli[ed] clearly estab-
lished Federal law.” (citation and internal quotation marks omitted)).
7350 SESSOMS v. RUNNELS
Bell v. Cone, 535 U.S. 685, 698-99 (2002). And, most
recently in Richter, the Court took great pains to fully under-
score the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of
imposing a complete bar on federal court relitigation
of claims already rejected in state proceedings. Cf.
Felker v. Turpin, 518 U.S. 651, 664 (1996) (discuss-
ing AEDPA’s “modified res judicata rule” under
§ 2244). It preserves authority to issue the writ in
cases where there is no possibility fairminded jurists
could disagree that the state court’s decision con-
flicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus
is a “guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for ordi-
nary error correction through appeal. Jackson v. Vir-
ginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring in judgment). As a condition for obtain-
ing habeas corpus from a federal court, a state pris-
oner must show that the state court’s ruling on the
claim being presented in federal court was so lacking
in justification that there was an error well under-
stood and comprehended in existing law beyond any
possibility for fairminded disagreement.
131 S. Ct. at 786-87 (emphasis added); see also Lockyer, 538
U.S. at 75-76.
III
Having ascertained the standards by which we must review
the last reasoned decision of the state courts, see Avila v.
Galaza, 297 F.3d 911, 918 (9th Cir. 2002), we turn to the
merits of Sessoms’s three habeas claims. Because we con-
clude that none of the state courts’ decisions rose to the level
required by AEDPA to overturn them, we deny his claims for
federal habeas relief.
SESSOMS v. RUNNELS 7351
A
We first consider whether the determination of the Califor-
nia Court of Appeal that Sessoms did not unequivocally
invoke his right to counsel “was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagree-
ment.” Richter, 131 S. Ct. at 786-87.
[1] The question is a crucial one. If an accused invokes his
right to have counsel present during a custodial interrogation,
he may not be subjected to further questioning by the authori-
ties until a lawyer has been made available “unless the
accused himself initiates further communication, exchanges,
or conversations with the police.” Edwards, 451 U.S. at 484-
85. This rigid prophylactic rule comes with a caveat, however.
Before it applies, a court “must determine whether the
accused actually invoked his right to counsel.” Smith v. Illi-
nois, 469 U.S. 91, 95 (1984) (per curiam) (citing Edwards,
451 U.S. at 484-85, and Miranda, 384 U.S. at 444-45); see
also Davis, 512 U.S. at 459 (“Invocation of the Miranda right
to counsel ‘requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the
assistance of an attorney.’ But if a suspect makes a reference
to an attorney that is ambiguous or equivocal in that a reason-
able officer in light of the circumstances would have under-
stood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of ques-
tioning.” (internal citations omitted) (quoting and citing
McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (“[T]he likeli-
hood that a suspect would wish counsel to be present is not
the test for applicability of Edwards.” (emphasis in original)))).7
7
Because our opinion rests on the firm jurisprudential ground that only
an unequivocal invocation will do—a settled principle the Supreme Court
has reiterated time-and-time again—we are at a loss to understand what
“magic words” test troubles the dissent. Compare Smith, 469 U.S. at 95-
96 (concluding that ambiguous or equivocal statements do not suffice),
7352 SESSOMS v. RUNNELS
The California Court of Appeal determined that Sessoms’s
statements fell within the caveat—not the rule. Sessoms
believes otherwise. He argues that his statements raise a
“close question” as to whether he legally invoked his right to
counsel and that the state court erred in resolving that ques-
tion against him. On that basis, he asks us to grant him habeas
relief. To resolve whether we should accept his invitation, we
first, as a necessary prerequisite, identify the “clearly estab-
lished Federal law” governing his claim. We then examine
whether the decision of the California Court of Appeal was
“contrary to, or involved an unreasonable interpretation of,”
that Supreme Court precedent or “was based on an unreason-
able determination of the facts.” Ultimately, in light of the
eminently “difficult” bar posed by AEDPA, we cannot con-
clude that it was. E.g., Richter, 131 S. Ct. at 786-87; Yarbor-
ough v. Alvarado, 541 U.S. 652, 663-66 (2004) (concluding
AEDPA precluded relief because arguments existed to sup-
port the state court’s conclusion). We therefore decline to
grant Sessoms habeas relief.
1
[2] In the case at hand, neither party challenges the state
court’s reliance on specific language from Davis to fix the
appropriate legal standard by which to measure the equivocal-
ity of Sessoms’s statement:8
and Edwards, 451 U.S. at 486 (same), with Dissent at 7371. Rather than
presenting a problem of “wands” and “disappearing acts,” cf. Dissent at
7381, we think our disagreement results solely from a less enchanting real-
ity: the dissent’s failure to acknowledge that the Court in Davis did not
end its discussion of Miranda after its “at a minimum” statement but, as
demonstrated, went on to describe that it has always required an unambig-
uous or unequivocal statement. Davis, 512 U.S. at 459.
8
To determine the need for an unequivocal statement, the state court
turned to Supreme Court precedent, applying Davis, 512 U.S. at 459-62,
Edwards, 451 U.S. at 484-87, and Miranda, 384 U.S. at 474. Sessoms,
2004 WL 49720, at *2-3.
SESSOMS v. RUNNELS 7353
Although a suspect need not “speak with the dis-
crimination of an Oxford don,” he must articulate his
desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances
would understand the statement to be a request for
an attorney. If the statement fails to meet the requi-
site level of clarity, Edwards does not require that
the officers stop questioning the suspect.
Sessoms, 2004 WL 49720, at *3 (quoting Davis, 512 U.S. at
459 (citation omitted)). We recognize, however, that Davis’s
reach was explicitly limited by the Court to statements made
post-waiver. Davis, 512 U.S. at 460-61; accord United States
v. Rodriguez, 518 F.3d 1072, 1080 (9th Cir. 2008) (limiting
application of Davis to equivocal statements made post-
waiver). Because Sessoms’s statements were made prior to
his Miranda waiver, Davis cannot apply as “clearly estab-
lished Federal law” in this case.
Of course, our conclusion that Davis cannot serve as
“clearly established Federal law” does not ipso facto entitle
Sessoms to relief. Carey v. Musladin, 549 U.S. 70, 77 (2006)
(“Given the lack of holdings from this Court . . . it cannot be
said that the state court ‘unreasonabl[y] appli[ed] clearly
established Federal law.’ ” (alterations in original)); see also
DeWeaver v. Runnels, 556 F.3d 995, 1002 (9th Cir. 2009)
(“We . . . could not conclude that application of the Davis rule
to an invocation of the right to remain silent is contrary to or
an unreasonable application of Supreme Court precedent
where the Supreme Court has neither ‘squarely addresse[d]’
when an ambiguous statement amounts to an invocation of the
right to remain silent nor refused to extend the Davis rule to
an invocation of the right to remain silent.” (second alteration
in original) (citing Van Patten, 552 U.S. at 124-25)). To the
contrary, our system of justice depends on the ability of state
courts to serve as “laboratories for testing solutions to novel
legal problems.” Smith v. Robbins, 528 U.S. 259, 275 (2000)
(AEDPA case) (citation omitted).
7354 SESSOMS v. RUNNELS
In short, it is more in keeping with our status as a
court, and particularly with our status as a court in
a federal system, to avoid imposing a single solution
on the States from the top down. We should, and do,
evaluate [S]tate procedures one at a time, as they
come before us, while leaving ‘the more challenging
task of crafting appropriate procedures . . . to the lab-
oratory of the States in the first instance.’ We will
not cavalierly ‘imped[e] the States’ ability to serve
as laboratories for testing solutions to novel legal
problems.’
Id. (internal citations omitted). As the Supreme Court has
never held against application of the Davis standard to a situa-
tion like Sessoms’s, the state court’s application of that stan-
dard cannot violate the bounds of either the “contrary to” or
“unreasonable application” inquiries. See id.; Schriro v. Lan-
drigan, 550 U.S. 465, 478 (2007) (concluding that a state
court’s decision was not objectively unreasonable because the
Supreme Court had yet to speak on the issue). Simply put, one
cannot demonstrate that a decision is “contrary to, or an
unreasonable application of,” precedent that does not yet
exist.
Moreover, without Davis, we are unable to find any
Supreme Court precedent where the Court provided a legal
test for distinguishing equivocal from unequivocal pre-waiver
statements or even directly addressed the effect of an ambigu-
ous pre-waiver statement—a reality that is not surprising
given that pre-waiver statements are usually inadmissible and
individuals who desire counsel do not normally thereafter
waive their Miranda right to counsel. See Davis, 512 U.S. at
460-61 (“We recognize that requiring a clear assertion of the
right to counsel might disadvantage some suspects who—
because of fear, intimidation, lack of linguistic skills, or a
variety of other reasons—will not clearly articulate their right
to counsel although they actually want to have a lawyer pres-
ent. But the primary protection afforded suspects subject to
SESSOMS v. RUNNELS 7355
custodial interrogation is the Miranda warnings themselves
. . . . A suspect who knowingly and voluntarily waives his
right to counsel after having that right explained to him has
indicated his willingness to deal with the police unassisted.”
(emphasis added)). But cf. Dissent at 7381 (arguing that the
Court’s invocation standard “is not a rigorous one” and that
our reliance on Edwards creates a “particular injustice” for
the poor and less educated).
[3] Sessoms’s claim therefore hinges upon our determina-
tion that the decision of the California Court of Appeal was
“contrary to, or an unreasonable application of,” the general
Edwards standard that an accused must have “actually
invoked his right to counsel.” Smith, 469 U.S. at 95; see also
Edwards, 451 U.S. at 485. “[A]s th[e] Court has explained,”
this only makes Sessoms’s task that much more difficult:
“ ‘[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.’ ” Richter, 131 S. Ct. at 786
(second alteration in original) (emphasis added) (quoting Yar-
borough, 541 U.S. at 664).
2
Having identified the general Edwards “equivocality” stan-
dard as our North Star of “clearly established Federal law,”
we now review the state court’s course against the compass
of AEDPA.
We first consider whether the state court arrived at a con-
clusion opposite to that reached by the Court on a question of
law. See Williams, 529 U.S. at 405; see also Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam) (noting that a state-court
decision is not contrary to Supreme Court precedent for fail-
ure to cite that precedent “so long as neither the reasoning nor
the result of the state-court decision contradicts [it]”). We
hold that it did not.
7356 SESSOMS v. RUNNELS
[4] Quite appropriately, the state court concluded that an
unequivocal invocation was required. Compare Sessoms,
2004 WL 49720, at *2, with Smith, 469 U.S. at 95-97 (“This
case concerns the threshold inquiry: whether Smith invoked
his right to counsel in the first instance. On occasion, an
accused’s asserted request for counsel may be ambiguous or
equivocal. . . . [But n]either the State nor the courts below, for
example, have pointed to anything Smith previously had said
that might have cast doubt on the meaning of his statement
‘I’d like to do that’ upon learning that he had the right to his
counsel’s presence. Nor have they pointed to anything inher-
ent in the nature of Smith’s actual request for counsel that
reasonably would have suggested equivocation.” (emphasis
added)), id. at 98 (“Where nothing about the request for coun-
sel or the circumstances leading up to the request would ren-
der it ambiguous, all questioning must cease.” (emphasis
added)), and Edwards, 451 U.S. at 485 (“[I]t is inconsistent
with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has
clearly asserted his right to counsel.” (emphasis added)).
[5] In addition, the state court did not confront a set of
facts materially indistinguishable from a decision of the Court
and nevertheless arrive at a different result. Williams, 529
U.S. at 405. Logically, a legal determination as to whether an
attempted invocation was equivocal or not is plainly driven by
the particular facts of a case. See Robinson v. Borg, 918 F.2d
1387, 1390 (9th Cir. 1990). Sessoms has not provided, and we
cannot find, any example in Supreme Court precedent where
an individual uttered a materially indistinguishable statement
and the Court concluded that he or she had unequivocally
invoked his or her right to counsel.9 Cf. Sessoms, 2004 WL
9
The fact that only Supreme Court precedent binds state courts under
AEDPA also disposes of the dissent’s suggestion that Alvarez v. Gomez,
185 F.3d 995, 998 (9th Cir. 1999), binds our reasoning. Richter, 131 S. Ct.
at 786; Lockyer, 538 U.S. at 71. At best, circuit precedent may serve as
persuasive authority. Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir.
SESSOMS v. RUNNELS 7357
49720, at *3 (concluding that Sessoms’s statements were “le-
gally indistinguishable” from the statement in Davis10 that the
Supreme Court found ambiguous). Instead, the state court’s
decision appears, at worst, to fall directly within that class of
cases that the Supreme Court specifically excepted from run-
ning afoul of the “contrary to” inquiry:
On the other hand, a run-of-the-mill state-court
2003). But see Cullen v. Pinholster, 131 S. Ct. 1388, 1411 (2011) (“Those
cases [decided without regard for AEDPA] therefore offer no guidance
with respect to whether a state court has unreasonably determined that
prejudice is lacking.”). However, the persuasive merit of any particular
case can only be determined through comparison to the entire body of cir-
cuit case law—both ours and that of our sister circuits. Kessee v.
Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009) (“For purposes of
AEDPA review, however, a state court’s determination that is consistent
with many sister circuits’ interpretations of Supreme Court precedent,
even if inconsistent with our own view, is unlikely to be ‘contrary to, or
involve an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.’ ”); Clark, 331 F.3d at 1071 (“The very
fact that circuit courts have reached differing results on similar facts leads
inevitably to the conclusion that the Arizona court’s rejection of Clark’s
claim was not objectively unreasonable.”). As a quick of review of just our
own precedent demonstrates a disparity of outcomes under similar facts,
Alvarez does not aid our inquiry as to AEDPA unreasonableness. Kessee,
574 F.3d at 677; compare Alvarez, 185 F.3d at 998, with United States v.
Younger, 398 F.3d 1179, 1184, 1187-88 (9th Cir. 2005) (concluding that
the defendant’s pre-Miranda statement, “But, excuse me, if I am right, I
can have a lawyer present through all this, right?,” was not an unambigu-
ous request for counsel), and Clark, 331 F.3d at 1065, 1071-72 (conclud-
ing that neither the statement, “I think I would like to talk to a lawyer,”
nor “should I be telling you or should I talk to a lawyer?,” constituted an
unequivocal request for counsel).
10
In Davis, the petitioner stated, “Maybe I should talk to a lawyer.” 512
U.S. at 455. Like the Sacramento detectives here, the interviewing agents
in Davis were unsure if Davis was asking for a lawyer or merely making
a comment about a lawyer. Id. The agents told Davis that they did not
want to violate his rights, so if he was asking for a lawyer, they would stop
questioning him and get him a lawyer. Id. The Sacramento detectives did
exactly the same with Sessoms, and, like Davis, Sessoms chose to talk.
7358 SESSOMS v. RUNNELS
decision applying the correct legal rule from our
cases to the facts of a prisoner’s case would not fit
comfortably within § 2254(d)(1)’s “contrary to”
clause. Assume, for example, that a state-court deci-
sion on a prisoner’s ineffective-assistance claim cor-
rectly identifies Strickland as the controlling legal
authority and, applying that framework, rejects the
prisoner’s claim. Quite clearly, the state-court deci-
sion would be in accord with our decision in Strick-
land as to the legal prerequisites for establishing an
ineffective-assistance claim, even assuming the fed-
eral court considering the prisoner’s habeas applica-
tion might reach a different result applying the
Strickland framework itself. It is difficult, however,
to describe such a run-of-the-mill state-court deci-
sion as “diametrically different” from, “opposite in
character or nature” from, or “mutually opposed” to
Strickland, our clearly established precedent.
Although the state-court decision may be contrary to
the federal court’s conception of how Strickland
ought to be applied in that particular case, the deci-
sion is not “mutually opposed” to Strickland itself.
Williams, 529 U.S. at 406 (emphasis added).
[6] We next consider whether the state court’s decision
unreasonably applied Supreme Court precedent. The conclu-
sion of the California Court of Appeal was that “although
defendant twice explicitly referred to an attorney, neither
statement was an unequivocal or unambiguous request for
counsel.” Sessoms, 2004 WL 49720, at *3. It considered Ses-
soms’s first statement to be merely a question regarding
whether he was entitled to a lawyer—if he desired one. Id.
(comparing Sessoms’s statement to those of the defendant in
Davis, 512 U.S. at 455 (“Maybe I should talk to a lawyer”),
and People v. Crittenden, 885 P.2d 887, 908 (Cal. Ct. App.
1994) (“Did you say I could have a lawyer?”), which were
held ambiguous). It found his second statement even less suf-
SESSOMS v. RUNNELS 7359
ficient, considering it merely “a statement of [Sessoms’s]
father’s advice to him.” Id.
[7] Upon first impression, these determinations may seem
harsh—a bare reading of the black-and-white transcript does
raise a close question as to whether Sessoms legally invoked
his right to counsel. But see Yarborough, 541 U.S. at 664-65.
However, we recognize that, under AEDPA, we cannot sim-
ply “treat[ ] the unreasonableness question as a test of [our]
confidence in the result [we] would reach under de novo
review” or even a question of whether we have “little doubt”
that Sessoms has a valid claim. Richter, 131 S. Ct. at 786;
Woodford, 537 U.S. at 24-25 (“An ‘unreasonable application
of federal law is different from an incorrect application of fed-
eral law.’ ” (quoting Williams, 529 U.S. at 410)). Rather,
under AEDPA, we may only grant relief if we determine “that
the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter, 131
S. Ct. at 786-87; see Lockyer, 538 U.S. at 75-76. In making
that inquiry, we are bound to give due regard for the specific-
ity of the relevant standard set by the Court, Yarborough, 541
U.S. at 664, and cannot overlook arguments that would other-
wise justify the state court’s result, Richter, 131 S. Ct. at 786
(“Under § 2254(d), a habeas court must determine what argu-
ments or theories supported or, as here, could have supported,
the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those argu-
ments or theories are inconsistent with the holding in a prior
decision of this Court.”); Yarborough, 541 U.S. at 664-65
(detailing the facts supporting the state court’s decision and
concluding that these “differing indications” demonstrated
“that the state court’s application of [the Court’s] custody
standard was reasonable” because “it can be said that fair-
minded jurists could disagree over whether [the petitioner]
was in custody”). Under this eminently “difficult” standard,11
11
We fully agree with our dissenting colleague that “AEDPA’s ‘stan-
dard is demanding but not insatiable’ and ‘deference does not by defini-
7360 SESSOMS v. RUNNELS
Richter, 131 S. Ct. at 786, Sessoms simply cannot demon-
strate the requisite AEDPA unreasonableness—especially
when the conversation between Sessoms and the detectives is
colored with tone, inflection, body language, and the infinite
other minute qualities of demeanor and affect that cannot be
ascertained from words alone, but are plainly apparent on the
videotape evidence of what transpired.
[8] When Sessoms asks if he is entitled to an attorney, his
inflection, body language, and manner support the state
court’s conclusion that he was completely unaware if he even
had a right to counsel under the circumstances and was only
asking if he could request counsel. Sessoms’s second state-
ment is even further from the mark. While he makes clear to
the detectives that his father had advised him to ask for coun-
sel, he never indicates any desire to transform his father’s
advice into his own desire to have a lawyer present. Even
taken cumulatively, the statements could reasonably be inter-
preted to convey a question followed by an expression of Ses-
soms’s father’s advice to him—statements that do not
evidence an unequivocal desire for counsel. Cf. Yarborough,
541 U.S. at 664-66 (analyzing whether any facts supported
the state court’s decision). Moreover, at no other point did
Sessoms, once informed he could, indicate that he wanted to
tion preclude relief.’ ” Dissent at 7368-69 (some internal quotations
omitted) (quoting Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). Where
we differ is in our recognition that the Court has, since Miller-El, taken
great care to fully articulate the requirements necessary to satisfy AEDPA.
E.g., Richter, 131 S. Ct. at 785-86 (“As amended by AEDPA, § 2254(d)
stops short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.”); Yarborough, 541 U.S. at
660-66. Simply put, whereas the dissent relies on the Court’s broad
strokes, we apply its specific examples. Cf. United States v. Brewster, 408
U.S. 501, 516 (1972) (“Appellee’s contention for a broader interpretation
of the privilege draws essentially on the flavor of the rhetoric and the
sweep of the language used by courts, not on the precise words used in
any prior case, and surely not on the sense of those cases, fairly read.”).
SESSOMS v. RUNNELS 7361
claim his right to counsel.12 Rather, Sessoms ignored Woods’s
hints—that Woods was surprised that none of Sessoms’s
accomplices had asked for an attorney and that most attorneys
would tell a suspect to invoke his or her rights—and Miran-
da’s protections. He waived his rights and elected to speak to
the detectives.
[9] Upon this record, we have to agree with the district
court that the state court’s decision cannot be characterized as
objectively unreasonable. As we stated previously, any num-
ber of “fairminded” jurists may have answered the question
differently had it come before them outside the confines of
AEDPA review. Certainly, this issue, stripped of its habeas
posture, raises a “close question” under the general Edwards
standard. However, unlike Sessoms and our dissenting col-
league,13 we recognize that AEDPA requires more: “an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter, 131
S. Ct. at 786-87 (emphasis added) (“A state court’s determi-
nation that a claim lacks merit precludes federal habeas relief
12
We are cognizant of the Supreme Court’s holding in Smith, 469 U.S.
at 100, and reach our conclusions regarding Sessoms’s two statements
based solely on the clarity of the statements themselves. We emphasize
only that Sessoms never made any additional comments referencing coun-
sel after the detectives began recording the interview.
13
We respectfully reject our dissenting colleague’s accusation that we
only “pay lip service” to the Court’s directives. Unlike the dissent, we do
not “overlook[ ] arguments that would otherwise justify the state court’s
result . . . .” Richter, 131 S. Ct. at 786; Yarborough, 541 U.S. at 664-66.
But see Dissent at 7373-80 (failing to even consider arguments that sup-
port the California court’s decision). We do not evaluate the state’s result
under standards set by courts other than the Supreme Court. Richter, 131
S. Ct. at 786; see Pinholster, 131 S. Ct. at 1411. But see Dissent 7375-76
n.6; id. at 7380 n.10. And, we do not forget that the Edwards standard is
a general one. Compare Yarborough, 541 U.S. at 664 (“[E]valuating
whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations.”), with Edwards,
451 U.S. at 484-85. But see Dissent at 7371-72.
7362 SESSOMS v. RUNNELS
so long as ‘fairminded jurists could disagree’ on the correct-
ness of the state court’s decision.” (citing Yarborough, 541
U.S. at 664)). Here, that standard has not been met. Fair-
minded arguments exist to support the state court’s
determination—a conclusion evidenced by the fact that Ses-
soms himself labels the question “a close one.” Cf. Yarbor-
ough, 541 U.S. at 664-66. The state court’s conclusion is thus
secure behind the broad shield of AEDPA deference. Id.; see
also § 2254(d).
As neither party disputes the state court’s factual determi-
nation as to what was said during the interview, we have no
cause to address § 2254(d)(2). See Borg, 918 F.2d at 1390
(“Whether the suspect’s words constitute a request for counsel
is a legal determination . . . .” ) (citing Smith v. Endell, 860
F.2d 1528, 1532 n.3 (9th Cir. 1988) (“[T]he state court’s char-
acterization of Smith’s words is hardly a finding of fact. . . .
The constitutional effect of the dialogue is a legal question
. . . .”)).
[10] Because none of the § 2254(d) standards are met, we
cannot grant Sessoms federal habeas relief on this claim.
B
[11] Sessoms next argues that even if his statements were
ambiguous, the Sacramento detectives were limited to asking
clarifying questions prior to continuing with their interroga-
tion.14
This claim is dependent upon two assertions. First, it
requires that Davis be held inapplicable to this pre-waiver
context. Second, it depends on our agreement that the state
14
Because we conclude that the police were not under an obligation to
ask clarifying questions, we do not consider whether the subsequent fur-
nishment to Sessoms of his Miranda warnings and his express waiver sat-
isfy Rodriguez.
SESSOMS v. RUNNELS 7363
court was bound by our conclusion in Rodriguez that, as Ses-
soms asserts, police are “limited to questions seeking to clar-
ify the defendant’s intent” when confronted with ambiguous
requests for counsel made prior to the administration of
Miranda warnings and a defendant’s waiver of those rights.
Because we find no basis under AEDPA for requiring state
courts to adhere to precedent not established by the Supreme
Court, we cannot agree.
Plainly, if Davis applies to the record before us, Sessoms’s
claim fails.15 So, Sessoms reverses course, arguing that Davis
is inapplicable in this pre-waiver context. For the reasons
already discussed, we agree. Davis, 512 U.S. at 460-61;
accord Rodriguez, 518 F.3d at 1080. Contrary to Sessoms’s
assertions, however, the absence of Davis does not change the
outcome.
[12] Sessoms makes no attempt to clothe his argument
under the guise of Supreme Court authority. Rather, he cites
only our holding in Rodriguez to support his claim. Rodriguez
itself makes clear, though, that its holding is based solely on
Ninth Circuit precedent. Id. (“To the extent Nelson [v.
McCarthy, 637 F.2d 1291, 1296-97 (9th Cir. 1980),] requires
pre-waiver clarification of a suspect’s wishes concerning his
Miranda rights, it has not been superseded by Davis and
remains binding precedent.”). Because state courts are not
bound under AEDPA by precedent other than that established
by the Supreme Court, Rodriguez is immaterial to our review
of the state court’s decision to the extent Sessoms relies on it
to argue that clarifying questions were required.16 Compare
15
Under the circumstances present in Davis, the Supreme Court clearly
rejected the proposition that police are required to ask clarifying questions
when a suspect makes an ambiguous statement. 512 U.S. at 462 (“[W]e
are unwilling to create a third layer of prophylaxis to prevent police ques-
tioning when the suspect might want a lawyer.” (first emphasis added)).
16
Our dissenting colleague seizes upon our use of the word “immaterial”
to argue that we do not recognize Rodriguez’s persuasive value. Cf. Dis-
7364 SESSOMS v. RUNNELS
Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (hold-
ing that where the Supreme Court has expressly left an “open
question,” circuit precedent is immaterial and there is no
clearly established law for the state court to have unreason-
ably applied), with Davis, 512 U.S. at 461 (holding that an
objectively ambiguous request, made post waiver, does not
require police to ask clarifying questions), and Smith, 469
U.S. at 96 (reserving as an open question the issue of the
effect of an ambiguous statement preceding invocation or an
ambiguous request itself).
[13] As we find ourselves without any basis in “clearly
established Federal law” for Sessoms’s claim, we again
decline to grant Sessoms relief. See Knowles, 129 S. Ct. at
1419; Van Patten, 552 U.S. at 126.
C
[14] Sessoms’s final claim is that his trial counsel per-
formed ineffectively by choosing not to pursue a motion to
suppress Sessoms’s admission on the grounds that detectives
Woods and Keller17 failed to “scrupulously honor” his
sent at 7380 n.10. We believe our colleague misunderstands us. Rodriguez
is only “immaterial” to the extent Sessoms relies on it to contend that the
Sacramento detectives were required to ask him clarifying questions.
Rodriguez, 518 F.3d at 1080 (noting that the requirement is founded in cir-
cuit precedent, not Court precedent); see, e.g., Pinholster, 131 S. Ct. at
1411; Richter, 131 S. Ct. at 786-87; Lockyer, 538 U.S. at 75-76. To the
extent Rodriguez might otherwise persuade us of the limited applicability
of Davis’s standard for measuring equivocality, it suffers from the same
shortcomings previously described supra at note 9. Cf. DeWeaver, 556
F.3d at 1002; Anderson, 516 F.3d at 787 n.3 (en banc) (“We acknowledge
that Davis is an invocation of counsel case under Miranda, not a Fifth
Amendment right to silence case . . . . Nonetheless, the general principles
from cases involving the clarity of invocation of rights during custodial
interrogation are instructive as to common sense interpretation of lan-
guage.”).
17
Sessoms does not allege any impropriety on the part of the Langston
Police Department.
SESSOMS v. RUNNELS 7365
November 15 invocation of his right to remain silent when
they interviewed him on November 20.18 See Michigan v.
Mosley, 423 U.S. 96, 103-04 (1975).
In ordinary cases, a defendant bears the burden of convinc-
ing the reviewing court that his counsel’s performance fell
below an objective standard of reasonableness and that he was
prejudiced by such deficient performance. Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984). However, as this claim
comes before us under AEDPA review, Sessoms faces the
additional hurdle of § 2254(d). Pinholster, 131 S. Ct. at 1411;
Richter, 131 S. Ct. at 788; Premo v. Moore, 131 S. Ct. 733,
739-41 (2011); Earp, 431 F.3d at 1185; see also Delgado, 223
F.3d at 981-82. Because we find no basis in the record from
which to conclude that a Mosley motion could have suc-
ceeded, we conclude that Sessoms’s trial counsel did not per-
form ineffectively in choosing not to pursue it. We therefore
do not consider Sessoms’s claims regarding prejudice, as we
agree with the district court that § 2254(d) does not permit
issuance of the federal writ.
[15] In Mosley, the Supreme Court concluded that the “ad-
missibility of statements obtained after the person in custody
has decided to remain silent” depends on whether that per-
son’s “right to cut off questioning” was “scrupulously hon-
ored.” 423 U.S. at 104. The Court explained that this critical
“right to cut off questioning” is met when the person in cus-
tody “can control the time at which questioning occurs, the
subjects discussed, and the duration of the interrogation.” Id.
at 103-04. The Court thereafter distinguished the second inter-
18
We acknowledge that in his briefs to us, Sessoms expands the basis
of his claim to incorporate his purported invocation of his right to counsel
on November 20. We note, however, that the record is replete with exam-
ples of Sessoms’s trial counsel seeking to exclude Sessoms’s confession
on the basis of his claimed invocation of his right to counsel on that date.
We thus limit our review to Sessoms’s claims regarding whether his
November 15 invocation of his right to remain silent was “scrupulously
honored.”
7366 SESSOMS v. RUNNELS
rogation of Mosley from the circumstances of Westover v.
United States, 384 U.S. 436 (1966) (companion case to
Miranda), and found no violation. Mosley, 423 U.S. at 106-07
(“Here, by contrast, the police gave full ‘Miranda warnings’
to Mosley at the very outset of each interrogation, subjected
him to only a brief period of initial questioning, and sus-
pended questioning entirely for a significant period before
beginning the interrogation that led to his incriminating state-
ment.”).
[16] We conclude that the record in this case favors a simi-
lar result. Certainly, the mere fact that Sessoms had once
invoked his right to remain silent would not categorically bar
detectives Woods and Keller from trying to speak with him
five days later. Id. at 104-06. To the contrary, Mosley itself
permitted re-interview of the suspect a mere two hours after
he initially refused to speak to police. Id. In addition, Ses-
soms’s claim does not benefit from the Court’s description of
the elements of the right itself. Rather, the record plainly dem-
onstrates that Sessoms not only raised no objection to the
time, subject, or duration of the second interview that the
detectives failed to scrupulously honor, but appeared to initi-
ate and freely participate in the conversation.19 Given the
record in this case, we are hard pressed to see how Mosley is
even implicated.
[17] Perhaps recognizing the infirmity of his claim, Ses-
soms contends that his willingness to speak to the detectives
was immaterial because it was tainted by the detective’s fail-
ure to refresh his Miranda warnings at the immediate onset of
the second interview and their efforts to “cleverly, with tactics
19
When Woods began the interview, Sessoms interjected to ask about
the investigation and question whether he was entitled to a lawyer. While
Woods was setting up the recorder, Sessoms again initiated conversation,
asking whether it was necessary for police to have identified him through
the media. Finally, after Woods told Sessoms that prior to any questioning
regarding the crime, Sessoms would need to receive and waive his
Miranda rights, Sessoms chose to talk.
SESSOMS v. RUNNELS 7367
borne of experience, . . . overcome his invocation of his right
to silence . . . .” We are not persuaded. Though Sessoms’s
Miranda warnings were not refreshed at the immediate tem-
poral onset of the second interview, we do not see how this
transforms the interview into a Mosley violation. Berghuis,
130 S. Ct. at 2259; Pheaster, 544 F.2d at 368. The right artic-
ulated in Mosley was to “control the time at which question-
ing occurs, the subjects discussed, and the duration of the
interrogation.” 423 U.S. at 103-04. The record clearly indi-
cates that Sessoms had, and exercised, such control. Further-
more, the record demonstrates that, as in Mosley, the police
completely furnished the prophylactic safeguard of Miranda
warnings before questioning Sessoms about the circumstances
surrounding Sherriff’s death. Cf. id. at 98 (“Before question-
ing Mosley about this homicide, Detective Hill carefully
advised him of his ‘Miranda rights.’ ”); see also Berghuis,
130 S. Ct. at 2259.
[18] In regard to Sessoms’s claim that the detectives
coerced him into retreating from his position of silence, we
also cannot agree. Simply put, there is no support in the
record for his claim that he was coerced into retracting an
invocation he made to different officers from a different
department in a different city five days earlier. As has been
discussed, the record demonstrates that from the temporal
onset of the second interview Sessoms expressed no hint of a
desire to remain silent. To the contrary, he initiated much of
the pre-Miranda discourse. In addition, while Sessoms cer-
tainly possessed the ability to re-invoke his right to remain
silent after initiating his conversation with the detectives,
Miranda, 384 U.S. at 444-45, he never elected to do so.
Instead, upon receiving his Miranda warnings for a second
time prior to questioning, Sessoms chose to waive his rights,
stating, “Let’s talk.”
[19] In short, Sessoms’s counsel was not ineffective
because he was right. On November 15, Sessoms declined to
speak with the Langston police. He was not questioned again
7368 SESSOMS v. RUNNELS
until November 20. On that day, he elected not to invoke his
right to remain silent and instead made incriminating admis-
sions to Sacramento Detectives Woods and Keller. The fact
that he now regrets that choice does not transform his second
interview into something it was not—a Mosley violation. We
discern no evidence to support Sessoms’s claim that a Mosley
violation even occurred, let alone that he was deprived of
effective assistance of counsel when his trial counsel declined
to pursue it. As such, we certainly cannot conclude that the
decision of the state courts was contrary to, or an unreason-
able application of, established federal law. Premo, 131 S. Ct.
at 743; see § 2254(d). Sessoms is not entitled to the relief he
seeks.
IV
On the record before us, the district court properly con-
cluded that the denial of Sessoms’s claims by the state courts
of California did not warrant issuance of a writ of habeas cor-
pus under 28 U.S.C. § 2254.
AFFIRMED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
The Supreme Court has made clear that our review of a
petition for a writ of habeas corpus filed post-AEDPA is sig-
nificantly limited by 28 U.S.C. § 2254(d), see Harrington v.
Richter, 131 S. Ct. 770 (2011). Such review, however, is not
toothless. Harrington neither strips this court of the power to
review state court decisions grounded in federal constitutional
law, nor does it require that we “rubber stamp” such disposi-
tions. Indeed, the Court has expressly acknowledged that
AEDPA’s “standard is demanding but not insatiable” and
SESSOMS v. RUNNELS 7369
“ ‘deference does not by definition preclude relief.’ ” Miller-
El v. Dretke, 545 U.S. 231, 240 (2005) (alteration omitted)
(quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2002)). A
federal court’s role in reviewing writs of habeas corpus impli-
cating the fundamental rights of American citizens is a long-
standing and crucially important one, and rarely has there
been a case in which our obligation in discharging that role
was more clear than in this one. When the government
“take[s] a butcher knife to Miranda . . . a federal court can’t
sit idly by.” Doody v. Ryan,___ F.3d ___, 2011 WL 1663551,
at *38 (9th Cir. May 4, 2011) (Kozinski, C.J., concurring).
I.
Sessoms, a naive and relatively uneducated 19-year-old
boy, went, accompanied by his father, to turn himself in to the
police for a serious crime. Sessoms’s father left his son with
one clear admonition: he must ask for a lawyer before talking
to the police. At the police station, Sessoms was visited by
two Sacramento city homicide detectives. Before any mean-
ingful exchange took place, Sessoms followed his father’s
instructions and asked the detectives for an attorney. He first
asked, “There wouldn’t be any possible way that I could have
a — a lawyer present while we do this?” As Detective Woods
paused and stammered, Sessoms immediately reiterated his
desire for counsel, explaining “that’s what my dad asked me
to ask you guys — uh, give me a lawyer.” After requesting
a lawyer with these two statements, Sessoms explained his
concern that his words might be misrepresented if he did not
have an attorney present.
Instead of complying with Sessoms’s clear request for a
lawyer, Detective Woods, evidently realizing that such a
request had been made, dissuaded Sessoms from exercising
his right. The detective reassured Sessoms that counsel was
unnecessary because he was an “upfront and honest” guy who
would not try to play any “switch games” with Sessoms, and
7370 SESSOMS v. RUNNELS
because he would record the conversation.1 After starting the
recording device, Detective Woods informed Sessoms that
two other suspects had “waived [their] rights” and given state-
ments incriminating Sessoms, but that he understood that
there are “two sides to every story.” The detective advised
that a lawyer would probably prevent Sessoms from making
a statement and being able to tell the police his “version of it.”2
He then refused Sessoms’s request to call his father before
speaking to him, telling Sessoms that he was an “adult.” After
undermining the instructions that Sessoms had received from
his father and suggesting that it was in his best interest not to
obtain counsel in response to his clear request to do so, the
detective, for the first time, informed Sessoms of his Miranda
rights. Then, without being allowed to consult with his father,
Sessoms talked.
The state court’s decision not to suppress the confession
obtained under these circumstances does not withstand
AEDPA review. I disagree with the majority’s analysis of
whether the state court’s conclusion that Sessoms did not
invoke his right to counsel was unreasonable. Sessoms’s
statements constitute an invocation of the right to counsel
under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the
applicable precedent, and Davis v. United States, 512 U.S.
452, 459-60 (1994), the case applied by the state court.
Because the decision of the state court “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” Sessoms is entitled to habeas relief. 28 U.S.C.
§ 2254(d).
1
Detective Woods’s immediate response to Sessoms’s two statements
was “What — what we’re going to go is, um — I have one philosophy and
that’s, uh, be right up-front and be honest . . . and not . . . try to hide any-
thing from you, okay?” Sessoms then expressed the concerns that moti-
vated his desire for counsel, to which Detective Woods responded, “No,
we’re not playing no switch games or nothing else.”
2
This “advice” was given to Sessoms before the detective informed him
that he had a right to an attorney.
SESSOMS v. RUNNELS 7371
II.
I rest my dissent on the state court’s indefensible conclu-
sion that Sessoms’s statements did not constitute an invoca-
tion of the right to counsel. His two statements, which
together constitute an unambiguous request for a lawyer, meet
both the notably lenient Edwards standard and the post-
waiver standard set forth in Davis. The contrary holding,
endorsed by the majority, is an unreasonable application of
federal law. It eviscerates the Fifth Amendment and the mean-
ingful protections that Miranda affords.
A.
The holding in Edwards v. Arizona makes clear the unrea-
sonableness of the state court decision. As required by that
case, Sessoms “expressed his desire” for the assistance of
counsel, and was therefore “not subject to further interroga-
tion by the authorities until counsel [had] been made available
to him.” Edwards, 451 U.S. at 484-85. “Invocation of the
Miranda right to counsel ‘requires, at a minimum, some state-
ment that can reasonably be construed to be an expression of
a desire for the assistance of an attorney.’ ” Davis, 512 U.S.
at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178
(1991)); see also Miranda v. Arizona, 384 U.S. 436, 444-45
(1966) (holding that, if a suspect “indicates in any manner and
at any stage of the process that he wishes to consult with an
attorney before speaking[,] there can be no questioning”).
These decisions, which constitute clearly established Miranda
law, make clear that the standard for invocation of the right
to counsel is not a rigorous one. A suspect’s words are consid-
ered ambiguous only if “ordinary people would understand
them” to be so. Connecticut v. Barrett, 479 U.S. 523, 529
(1987). Notably, none of these cases sets forth a standard that
even remotely resembles a “magic words” test. Edwards,
Miranda, and McNeil instruct the court to determine whether
an accused’s statements, under a reasonable construction,
convey the desire to have counsel present; that is exactly what
7372 SESSOMS v. RUNNELS
Sessoms’s statements do. Despite the attempts of the state
court and the majority opinion to dissect Sessoms’s state-
ments to find any other possible meaning to his words, no
ordinary person would interpret his words as anything other
than a request for a lawyer. In fact, the detective plainly
understood that Sessoms had expressed a desire for counsel,
which is precisely why he responded by persuading him that
having a lawyer was a bad idea.3
Indeed, Sessoms’s statements also meet Davis’s post-
waiver requirement that a request for counsel be “unambigu-
ous.”4 The Davis standard requires neither grammatical cor-
rectness nor fluid phrasing. Davis acknowledges that “a
suspect need not speak with the discrimination of an Oxford
don,” 512 U.S. at 459, and, like its predecessors, makes no
mention of any particular “magic words.” Rather, Davis
requires only sufficient clarity so that “a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney.” Id.
Unquestionably, a reasonable police officer would, as the
detective did here, understand Sessoms’s statements to be a
request for counsel. He first politely requested to confer with
counsel — “There wouldn’t be any possible way that I could
have a – a lawyer present while we do this?” — and then
immediately clarified and reinforced his intention by stating
“give me a lawyer.” Neither Sessoms’s words nor his inten-
3
As the majority points out, the facts of this case are unique in that “in-
dividuals who desire counsel do not normally thereafter waive their
Miranda right to counsel.” This unlikely scenario presents itself here pre-
cisely because, after Sessoms expressed his desire for counsel, the request
was ignored and he was instead persuaded to forgo this right.
4
The suspect’s statement in Davis that was insufficient to restore the
right to counsel after it had been waived was “Maybe I should talk to a
lawyer.” 512 U.S. at 462. This statement, reflecting a measure of equivo-
cation on the part of the speaker, is entirely different in kind from Ses-
soms’s pre-waiver inquiry as to whether he could have a lawyer, followed
by the explanatory words “give me a lawyer.”
SESSOMS v. RUNNELS 7373
tion are in any way ambiguous. Indeed, the officer’s telling
response to Sessoms’s request bolsters the conclusion that it
meets the Davis standard. Upon being presented with the
request, Detective Woods stammered and then launched into
an explanation of why a lawyer was neither necessary nor
advisable. He did this because he understood that a lawyer is
exactly what Sessoms wanted.5 When Sessoms asked the
detective whether it would be possible for him to have an
attorney present during questioning, the only correct response
under Miranda was “yes.” Cf. United States v. Younger, 398
F.3d 1179, 1184 (9th Cir. 2005) (when a suspect asked “But,
excuse me, if I am right, I can have a lawyer present through
all this, right?,” the officers immediately responded “Yeah,”
and then read him his Miranda rights).
B.
In analyzing why habeas relief should be granted, I do not
simply rest on the conclusion that the state court reached the
5
Notably, in addition to his failure to honor Sessoms’s clearly stated
request for counsel, the detective’s subsequent attempt to dissuade Ses-
soms from consulting a lawyer raises a question as to whether Sessoms
was adequately advised of his Miranda rights. In a recent en banc deci-
sion, Doody v. Ryan, we emphasized that Miranda requires a defendant be
informed of his rights in a “clear and understandable” manner. Doody v.
Ryan, ___ F.3d ___, 2011 WL 1663551, at *13-14 (9th Cir. May 4, 2011).
As Chief Judge Kozinski notes in his concurrence, “[i]t’s not too much to
ask that police recite [Miranda warnings] as prescribed by the Supreme
Court, and not . . . obscure their meaning and undermine their effect.” Id.
at *38 (Kozinski, C.J., concurring).
As in Doody, the detective in this case deliberately downplayed the
importance of the right to counsel in persuading Sessoms that a lawyer
was not necessary. Clearly, the primary issue in this case is the adequacy
of Sessoms’s initial invocation, rather than the adequacy of the detective’s
subsequent advisement; Sessoms does not challenge the propriety of the
warnings. Nonetheless, that the detectives actively undermined Sessoms’s
understanding of his right only further indicates that their failure to pro-
vide him with counsel upon his initial request was deliberate, strategic,
and unlawful.
7374 SESSOMS v. RUNNELS
incorrect result. I readily accept the majority’s repeated chal-
lenge to demonstrate “that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagree-
ment.” Harrington, 131 S. Ct. at 786-87. “Fairminded” dis-
agreement is disagreement that is “unprejudiced, just, judicial,
[and] honest.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 816 (2002). The state court’s conclusion, and the
majority’s endorsement of it, are entirely without justification,
and therefore fail to withstand AEDPA review.
First, both the state court and the majority attempt to
obscure the clear nature of Sessoms’s request by breaking
apart his successive statements and attacking each one indi-
vidually. This analysis, however, ignores the fact that, as
reflected in the transcript and the video, these statements work
together as an expression of one complete thought. Sessoms
asked “There wouldn’t be any possible way that I could have
a — a lawyer present while we do this?” and then immedi-
ately explained “that’s what my dad asked me to ask you guys
— uh, give me a lawyer.” (emphasis added). “Give me a law-
yer,” therefore, refers back to and makes absolutely clear
what was expressed in the first, more polite, inquiry. When
the successive requests are read together and in light of one
another, there remains no reasonable argument to support the
state court’s conclusion. As spoken, Sessoms’s words are sub-
ject to only one rational interpretation — he was asking to
consult with a lawyer.
The state court entirely failed to consider what the state-
ments mean when read together, or precisely how Sessoms
conveyed them. This failure is fatal to the state court’s appli-
cation of Davis and Edwards, that is, to its assessment of how
a reasonable police officer would have understood Sessoms’s
statements, because the detectives did in fact hear both state-
ments, one immediately following the other. Nothing in
Miranda, Edwards, Davis, or any other case can be read to
SESSOMS v. RUNNELS 7375
support the contention that an invocation of the right to coun-
sel must be made in a single sentence, rather than in two suc-
cessive statements. The state court failed to appreciate the
clarity of the request in its entirety, instead breaking it apart
and unreasonably concluding that the pieces are inadequate.
If this failure is not itself reason enough to grant relief, the
attempts to undermine Sessoms’s individual statements are
also without merit. As to his first statement, “There wouldn’t
be any possible way that I could have a — a lawyer present
while we do this?”, the contention that Sessoms was inquiring
only as to whether he could request counsel is nothing more
than an irrelevant lesson in grammar. Both the state court and
the majority opinion pay mere lip service to the rule that a
criminal defendant need not speak with “the discrimination of
an Oxford don” and then proceed to attack the grammatical
structure of Sessoms’s sentence to conclude that he was ask-
ing a clarifying question rather than invoking his right.6
6
This reasoning runs directly afoul of Alvarez v. Gomez, 185 F.3d 995,
998 (9th Cir. 1999), where we construed the suspect’s statements (“[c]an
I get an attorney right now, man?”, “[y]ou can have an attorney right
now?”, and “[w]ell like right now you got one?”) to be unambiguous
requests for counsel rather than clarifying questions regarding the right to
counsel. Accord Clark v. Murphy, 331 F.3d 1062, 1070-72 (9th Cir. 2003)
(holding that the state court’s conclusion that a suspect did not unambigu-
ously request counsel was not unreasonable when, during a post-Miranda
interview, the suspect stated, “I think I would like to talk to a lawyer,”
after which the police stopped questioning him, left the room, and did not
resume questioning until the suspect explicitly said he did not want a law-
yer and wanted to continue talking). Although Alvarez does not serve as
“clearly established law” for purposes of AEDPA, it remains the law of
this circuit and serves as persuasive authority in evaluating on habeas
review the reasonableness of the state court’s application of federal law.
See Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008); Clark, 331 F.3d
at 1071 (identifying, under AEDPA review, Alvarez and other circuit cases
as possible persuasive authority).
The majority attempts to undermine the relevance of Alvarez by stating
in a footnote that “[a]t best, circuit precedent may serve as persuasive
authority,” and then citing Cullen v. Pinholster, 131 S. Ct. 1388, 1410-11
7376 SESSOMS v. RUNNELS
Though he may, understandably, have phrased the request
timidly, Sessoms nonetheless made clear to any reasonable
listener his desire to have counsel present during his conver-
sation with the police.
Apparently, the state court simply thought that Sessoms’s
wording was too polite. Because he inquired whether he could
ask for a lawyer, rather than demanding one, the court con-
cluded that he is not entitled to his Fifth Amendment right.7
If this or any other court demands such specificity and preci-
sion in invoking the right to counsel, particularly before it has
been knowingly waived, the right will operate for only those
educated individuals who have at their disposal the vocabu-
lary and self-assuredness of my colleagues in the majority.
This is precisely the standard for invocation that Davis
expressly forbids. 512 U.S. at 459. The state court’s error,
therefore, was “well understood and comprehended in exist-
ing law.” Richter, 131 S. Ct. at 786-87.
The second statement made by Sessoms was “that’s what
my dad asked me to ask you guys — uh, give me a lawyer.”
(2011) with a “But see” signal. Pinholster reasons only that the Supreme
Court cases that the lower court had relied upon offered limited guidance
as direct authority because they lacked the “doubly deferential” standard
of Strickland v. Washington, 466 U.S. 668 (1984), and AEDPA; it neither
addresses nor undermines the established principle that this circuit’s law,
whether decided under AEDPA or not, serves as persuasive authority as
to the reasonableness of a state court’s application of existing Supreme
Court precedent. Pinholster, 131 S. Ct. at 1410-11; see, e.g., Kessee v.
Mendoza-Powers, 574 F.3d 675, 677-78 (9th Cir. 2009); Clark, 331 F.3d
at 1071-72; Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000);
MacFarlane v. Walter, 179 F.3d 1131, 1138-39 (9th Cir. 1999).
7
To reiterate, Sessoms went on to explain his request when he immedi-
ately said, “that’s what my dad asked me to ask you guys — uh, give me
a lawyer.” (emphasis added). The rationale of the state court and the
majority is therefore meritless, as Sessoms did in fact make a more force-
ful request for counsel that referred back to and explained his initial polite
inquiry.
SESSOMS v. RUNNELS 7377
As explained above, this statement is plainly a clarification of
the request made in Sessoms’s first inquiry, i.e. to consult
with counsel. The assertion that, in so stating, Sessoms was
conveying the will of his father rather than his own is simply
incorrect when the statement is read with his first inquiry.
Furthermore, even in isolating Sessoms’s second statement
from his first, the state court was still faced with the magi-
cian’s task of convincing us that “give me a lawyer” does not
really mean “give me a lawyer.” The court failed, however,
to pull the rabbit out of its hat.
The situation presented is straightforward. A 19-year-old,
upon the advice and with the assistance of his father, turned
himself in to the police. His father instructed that, prior to
talking to the police, he should ask for counsel. In executing
these instructions to the best of his ability, the young man told
the police that his request was on the advice of his father. This
fact in no way affects the validity of the underlying request.
Indeed, Sessoms’s preface about his father’s advice, if any-
thing, reinforced and clarified that he was requesting counsel
pursuant to the instructions he had received. See Smith v. Illi-
nois, 469 U.S. 91, 96-97 (1984) (reversing a state court deci-
sion that failed to point to anything “inherent in the nature of
[the suspect’s] actual request for counsel that reasonably
would have suggested equivocation” other than the use of
“uh”, and noting that the suspect’s assertions that “she”
warned him that the police would “railroad” him and advised
him to get a lawyer before submitting to interrogation rein-
forced the clarity of the suspect’s invocation). The state
court’s reasoning cannot be squared with clearly established
law on this very issue.
Simply stated, when Sessoms said “give me a lawyer “ he
meant give me a lawyer, regardless of whether the request
was on the advice of his father, his priest, or his law school
professor. If any words could invoke the right to counsel
guaranteed by the Fifth Amendment, these are they — there
is no room for disagreement on this point. At the moment Ses-
7378 SESSOMS v. RUNNELS
soms uttered these words, the police should have ceased ques-
tioning and counsel should have been provided.8
The majority’s affirmation of what it calls a “harsh” appli-
cation of the law is an attempt to justify the state court’s inde-
fensible conclusion that this young man did not request
counsel before he was read his Miranda rights. The sugges-
tion that Sessoms’s “inflection, body language, and manner”
support the state court’s conclusion, despite what the tran-
script reflects, is perplexing. As I review the video, Sessoms’s
body language, demeanor, and tone of voice do nothing to
alter the clear thrust of his language. If anything, his posture
and the position of his arms indicate that perhaps he feels
scared — or just cold. It is as if the majority is curiously
attempting to resurrect the once-familiar maxim that “your
words said no but your body language said yes.”
Habeas relief should be granted not merely because the
state court’s application of Miranda law is incorrect. Rather,
relief should be granted because the state court’s reasoning is
contrary to the Supreme Court’s clear mandate that when a
suspect “expresses his desire” to have counsel present, ques-
tioning must cease. See Edwards, 451 U.S. at 484-85. Its rea-
soning cannot be reconciled with the instruction that a suspect
need not speak with the “discrimination of an Oxford don”
when making his request. See Davis, 512 U.S. at 459. Its rea-
soning is directly at odds with the Court’s direction that an
expression of reliance on the advice of a third party does not
create ambiguity, but rather reinforces the clarity of an invo-
cation. See Smith, 469 U.S. at 96 n.4. And its conclusion is
directly opposed to the Fifth Amendment itself, because an
irrational holding that “give me a lawyer” does not mean give
me a lawyer eviscerates the right to counsel completely.
8
That Sessoms continued to respond to the detectives’ questions after
requesting counsel has no bearing upon the validity of his initial invoca-
tion. “Under Miranda and Edwards . . . an accused’s postrequest
responses to further interrogation may not be used to cast doubt on the
clarity of his initial request for counsel.” Smith, 469 U.S. at 92.
SESSOMS v. RUNNELS 7379
III.
I also disagree with the state court’s decision to apply the
standard announced in Davis to the facts of this case. A state-
court decision is an unreasonable application of federal law
under AEDPA when it “unreasonably extends a legal princi-
ple from [Supreme Court] precedent to a new context where
it should not apply.” Williams v. Taylor, 529 U.S. 362, 407
(2000).9 The state court’s application of Davis to the pre-
waiver context is just such an unreasonable extension.
Davis held that, after a suspect has chosen to waive his
right to counsel, his subsequent request for counsel must be
unambiguous. 512 U.S. at 459. The Court was not silent on
the issue of whether its holding should apply in the pre-waiver
context. The articulated Davis holding is as follows: “[A]fter
a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney.” Id. (emphasis
added). The language and analysis of Davis itself, therefore,
compels the conclusion that its application is inappropriate in
the pre-waiver context. It addresses only what a suspect must
do to restore the right to counsel after it has been knowingly
disavowed, not the degree of clarity with which a suspect
must invoke the right in the first instance. Indeed, it is well
settled that “[i]nvocation and waiver [of Miranda rights] are
9
Williams, therefore, expressly acknowledges that AEDPA allows us to
evaluate whether the state court has unreasonably extended Supreme
Court precedent to a new context. This disposes of the majority’s sugges-
tion that, merely because the Supreme Court has never held against the
application of a particular legal principle to a specific factual circum-
stance, AEDPA review is foreclosed. Williams leaves open only the ques-
tion of whether an unreasonable extension of Supreme Court law falls
under the “unreasonable application” or the “contrary to” clause of
§ 2254(d)(1), noting that the analysis can, depending on the case, be
treated under both. 529 U.S. at 408. Regardless, Williams’s clear instruc-
tion that a state court may not unreasonably extend Supreme Court prece-
dent to a new context where it should not apply remains good law.
7380 SESSOMS v. RUNNELS
entirely distinct inquiries, and the two must not be blurred by
merging them together.” Smith, 469 U.S. at 98. In simply
reciting and applying the Davis test, the state court ignored
the reasoning and underlying facts that justified the rigor of
Davis’s approach. The manner in which the state court
applied Davis runs directly afoul of both Smith and Davis.10
Because Sessoms’s statements nonetheless satisfy the
Davis requirement for a post-waiver request, there is no need
to decide the question of whether Davis should have applied
at all. Therefore, though I believe the issue worth noting, I do
not rest my dissent on the state court’s decision to apply
Davis to the pre-waiver context.
10
This circuit has clearly held that Davis’s test is limited to the post-
waiver context. In United States v. Rodriguez, 518 F.3d 1072, 1078-79
(9th Cir. 2008), we examined the language in Davis and concluded that the
“clear statement” rule in Davis “addresses only the scope of invocations
of Miranda rights in a post-waiver context.” We further explained that
“Davis addressed what the suspect must do to restore his Miranda rights
after having already knowingly and voluntarily waived them. It did not
address what the police must obtain, in the initial waiver context, to begin
questioning.” Id. at 1079. Indeed, “[t]he existence of a prior waiver
explains how Davis can be reconciled with the Supreme Court’s historic
presumption against finding waiver of constitutional rights.” Id. We have
explicitly recognized, therefore, that Davis does depart in some measure
from precedent, and is therefore appropriately applied only in a limited
context.
The state court, nevertheless, applied Davis to the pre-waiver context.
Although I fully recognize that the law of this circuit does not bind state
courts, I reiterate the well-settled principle that our decisions may be used
as persuasive authority to determine if a state court’s decision is an “un-
reasonable application” of clearly established federal law, or whether the
law is “clearly established.” Mejia, 534 F.3d at 1042; Duhaime, 200 F.3d
at 600-01. Rodriguez fully explains why extending Davis to the post-
waiver context is unreasonable, and it is consistent with the decisions of
other jurisdictions. 518 F.3d at 1079 n.6. Rodriguez is not, as the majority
contends, “immaterial,” but rather serves as relevant, persuasive authority
on the issue of how Davis reasonably can be applied.
SESSOMS v. RUNNELS 7381
IV.
Though review under AEDPA is limited, it is not, as the
majority would have it, a nullity. “[W]here, as here, a state
court doesn’t act reasonably, deference comes to an end.”
Doody, 2011 WL 1663551, at *38 (Kozinski, C.J., concur-
ring). Edwards and Miranda establish that, once a suspect has
indicated a desire to consult with counsel, all questioning
must cease. Sessoms’s statements meet this standard, which
is not a rigorous one, as they do the post-waiver standard set
out in Davis. The state court and majority’s empty attacks on
Sessoms’s grammar, tone, and body language create unrea-
sonable and grossly prejudicial barriers to the invocation of
the right to an attorney that contravene clearly established
law.
Moreover, the majority’s holding creates particular injus-
tice for the poor and less educated, who often regard law
enforcement with uncertainty or timidity but for whom coun-
sel and representation are most critical. By waving its wand
and declaring the words “give me a lawyer” insufficient to
request a lawyer, the state court, with the help of the majority,
has made Miranda rights disappear. Sessoms’s habeas peti-
tion should be granted.