NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EDUARDO NAVARETTE, No. 16-55630
Petitioner-Appellant, D.C. No.
2:14-cv-08457-PSG-MRW
v.
WILLIAM JOE SULLIVAN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted February 13, 2019
Pasadena, California
Before: FISHER, CALLAHAN and OWENS, Circuit Judges.
Eduardo Navarette appeals the denial of his 28 U.S.C. § 2254 habeas
petition. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see
Gulbrandson v. Ryan, 738 F.3d 976, 986 (9th Cir. 2013), and we affirm.
Under § 2254(d)(1), we may not grant habeas relief unless the California
Court of Appeal unreasonably applied Michigan v. Mosley, 423 U.S. 96 (1975).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
This standard is “difficult to meet” and is satisfied only “where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts
with [the Supreme] Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102
(2011). Navarette “must show that the state court’s ruling . . . was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 103.
Navarette has not met this standard. Under Mosley, 423 U.S. at 104, “the
admissibility of statements obtained after the person in custody has decided to
remain silent depends under Miranda on whether his ‘right to cut off questioning’
was ‘scrupulously honored.’” Here, a fairminded jurist could conclude that the
police scrupulously honored Navarette’s March 12 invocation of his right to cut off
questioning because: (1) he was provided full Miranda warnings on March 12; (2)
when he invoked his right to silence on March 12, the police immediately ceased
questioning; (3) the police thereafter did not engage in repeated attempts to
question him in order to wear down his resistance; (4) substantial time (two days)
elapsed between the March 12 invocation and the March 14 resumption of
questioning; (5) the March 12 questioning and the March 14 questioning were
conducted by different officers; (6) the police did not coerce Navarette to waive his
Miranda rights; (7) although the police did not provide Miranda warnings at the
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outset of the March 14 questioning, they did provide a full set of warnings (and
obtain his waiver) before questioning him specifically about the crimes themselves;
(8) Navarette’s confession came after the mid-questioning Miranda warnings; and
(9) although the two interviews involved the same crimes, courts applying Mosley
have accorded this factor little weight. See United States v. Hsu, 852 F.2d 407, 410
(9th Cir. 1988); Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir. 1987).
Although the police failed to give Miranda warnings at the outset of the
second interview, several federal circuit decisions have held – albeit on different
facts – that this failure is not necessarily dispositive under Mosley. See United
States v. Wyatt, 179 F.3d 532, 534, 538 (7th Cir. 1999); Weeks v. Angelone, 176
F.3d 249, 267-69 (4th Cir. 1999), aff’d on other grounds, 528 U.S. 225 (2000);
United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998); Kelly v. Lynaugh,
862 F.2d 1126, 1130-31 (5th Cir. 1988); United States v. Pugh, 25 F.3d 669, 672-
73 (8th Cir. 1994); Stumes v. Solem, 752 F.2d 317, 321 (8th Cir. 1985). The
California Court of Appeal therefore reasonably applied Mosley.
AFFIRMED.
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FILED
Navarette v. Sullivan, No. 16-55630
FEB 26 2019
FISHER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the memorandum disposition that the California Court of
Appeal did not unreasonably apply Michigan v. Mosley, 423 U.S. 96 (1975), within
the meaning of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d)(1). I write separately, however, to explain that,
were we to review Navarette’s claim de novo, I would hold that the police did not
scrupulously honor Navarette’s invocation of his right to cut off questioning, as
Mosley requires.
On March 12, 2011, Navarette was advised of his Miranda rights and
invoked his right to cut off questioning. On March 14, two police detectives
resumed questioning. They did not provide a fresh set of Miranda warnings at the
outset of the questioning, as Miranda requires. See Miranda v. Arizona, 384 U.S.
436, 467-68 (1966) (“At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and unequivocal terms that he has
the right to remain silent.”); Sessoms v. Grounds, 776 F.3d 615, 628 (9th Cir.
2015) (en banc) (“Interrogation does not begin once the officers get to the hard
questions. Miranda warnings are required before any interrogation begins.”); cf.
Mosley, 423 U.S. at 104 (“He was given full and complete Miranda warnings at
the outset of the second interrogation.”). The detectives instead advised Navarette
that they were aware that he had invoked his right to remain silent, but that they
intended to question him anyway. They told him, “You say when you are arrested
that you don’t want to say anything, but right now, we only have a form. This
form is not regarding the case; it is just a form regarding questions about your life,
your family, things like that.” They implied, in other words, that he did not have
the right to remain silent – exactly the opposite of what they should have said.
The two detectives then proceeded to question Navarette for 30 minutes
before providing Miranda warnings. The detectives later readily acknowledged
that this questioning was investigatory, which it plainly was. The detectives asked
an array of questions that were designed to – and likely to – elicit incriminatory
responses. They asked Navarette, for example, whether he had been arrested
before; whether he had “a gun” or a “weapon”; whether he used or sold drugs; the
contents of his jailhouse telephone conversation with his stepmother, a key
prosecution witness; a range of questions pertaining to his opportunity to commit
the alleged assaults – i.e., his school and work schedules and when he lived in the
home in which the assaults occurred; and the identity of potential witnesses for the
prosecution.
The two detectives, moreover, used the pre-Miranda questioning not only to
obtain useful information but also to condition Navarette to answering their
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questions and to ingratiate themselves to Navarette. They complimented him, for
example, for doing well in school, making the varsity soccer team, being a hard
worker and helping his mother and grandparents financially.
After 30 minutes, the detectives finally advised Navarette of his Miranda
rights. The detectives then obtained Navarette’s waiver of those rights and,
ultimately, a confession. The prosecution relied heavily on that confession at trial,
and Navarette was convicted.
The state implausibly suggests that this 30 minutes of questioning was
permissible under Miranda because it was not “interrogation.” Not so. To be sure,
the Supreme Court has recognized that interrogation does not include words or
actions on the part of the police that are “normally attendant to arrest and custody.”
Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This “‘routine booking question’
exception,” however, applies only to questioning conducted “to secure the
biographical data necessary to complete booking or pretrial services” – i.e.,
questions regarding a suspect’s “name, address, height, weight, eye color, date of
birth, and current age” that are “reasonably related to the police’s administrative
concerns.” Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990) (plurality
opinion) (internal quotation marks omitted). The exception does not apply to
questioning “conducted for an investigatory purpose and not for the booking
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process,” United States v. Poole, 794 F.2d 462, 466 (9th Cir. 1986) (as amended),
or “reasonably likely to elicit an incriminating response from the suspect,” United
States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981) (quoting Innis, 446 U.S. at
301). The questioning at issue here – investigatory, non-routine and likely to elicit
incriminating responses – falls well outside the routine booking question
exception.
The failure to provide warnings at the outset of the second interrogation
therefore violated Miranda, and this Miranda violation was intentional. As we
explained in United States v. Williams, 435 F.3d 1148, 1160 (9th Cir. 2006),
“[b]ecause law enforcement officers generally retain control over the timing of a
Miranda warning and giving the warning to a custodial suspect imposes only a
minimal burden, the officer’s deferral of the warning . . . supports an inference of
deliberateness.” Cf. Missouri v. Seibert, 542 U.S. 600, 620 (2004) (Kennedy, J.,
concurring) (recognizing a Miranda violation where “[t]he police used a two-step
questioning technique based on a deliberate violation of Miranda”).
The actions of the police in this case were not in keeping with Mosley.
Rather than scrupulously honoring Navarette’s right to cut off questioning, they
interrogated him outside of Miranda. They did so extensively and deliberately.
Accordingly, on de novo review, I would hold that the police obtained Navarette’s
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confession in violation of Mosley. I nonetheless concur in the decision of the court
because the California Court of Appeal’s contrary decision survives deferential
review under AEDPA.
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