NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 14 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
IAN CLIETT, No. 12-55146
Petitioner - Appellee, D.C. No. 2:05-cv-06616-SJO-JC
v.
MEMORANDUM *
L.E. SCRIBNER, WARDEN
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted July 11, 2012
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
Respondent-appellant L.E. Scribner appeals the district court’s conditional
grant of petitioner-appellee Ian Cliett’s petition for a writ of habeas corpus under
28 U.S.C. § 2254 based on his claim that incriminating statements he made during
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy Mark Burgess, United States District Judge
for the District of Alaska, sitting by designation.
a custodial interrogation were admitted at his trial in violation of Miranda v.
Arizona, 384 U.S. 436 (1966). We have jurisdiction under 28 U.S.C. § 2253, and
we affirm.
The California Court of Appeal’s decision finding ambiguity in Cliett’s
invocation based on his prior cooperation with the detectives was an unreasonable
application of clearly established federal law as recognized by our precedents. See
28 U.S.C. § 2254(d)(1). Supreme Court cases are the only definitive source of
“clearly established” federal law under the Antiterrorism and Effective Death
Penalty Act; however, “we must follow our cases that have determined what law is
clearly established.” Byrd v. Lewis, 566 F.3d 855, 860 n.5 (9th Cir. 2009)
(citations omitted).
A person in custody has the right to cut off questioning at any time, and an
invocation of that right must be “scrupulously honored.” Miranda, 384 U.S. at
479. When Cliett stated, “I choose to remain silent,” in direct response to the
detective’s inquiry about whether he was willing to talk, he unambiguously and
unequivocally invoked his right to remain silent. See Anderson v. Terhune, 516
F.3d 781, 787 (9th Cir.) (en banc) (“Using ‘context’ to transform an unambiguous
invocation into open-ended ambiguity defies both common sense and established
Supreme Court law.”), cert. denied, Cate v. Anderson, 555 U.S. 818 (2008); see
2
also Miranda, 384 U.S. at 445 (“The mere fact that [the suspect] may have
answered some questions or volunteered some statements on his own does not
deprive him of the right to refrain from answering any further inquiries . . . .”).
The detectives failed to scrupulously honor Cliett’s clear invocation by continuing
to question him about whether he was willing to talk. See Anderson, 516 F.3d at
790 (“Where the initial request to stop the questioning is clear, ‘the police may not
create ambiguity in a defendant’s desire by continuing to question him or her about
it.’” (citation omitted)).
The district court correctly held that the admission of Cliett’s post-arrest
statements “had substantial and injurious effect or influence in determining the
jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal
quotation marks and citation omitted). Cliett confessed that he was at the scene of
the murder and, more specifically, had entered rival gang territory at night with a
fellow gang member who he knew was seeking revenge. The prosecutor relied
heavily on Cliett’s admissions during opening and closing, and, as the district court
noted, the other evidence was “less than overwhelming.”
AFFIRMED.
3
FILED
Cliett v. Scribner, No. 12-55146 AUG 14 2012
MOLLY C. DWYER, CLERK
TALLMAN, Circuit Judge, with whom N.R. SMITH, Circuit Judge, and .S. C O U R T OF APPE ALS
U
BURGESS, District Judge, join, concurring:
The California Court of Appeal, viewing the entire record in context,
reasonably determined that the detectives made no effort to coerce, intimidate, or
harass Cliett into talking; the detectives were surprised when Cliett allegedly
invoked his right to remain silent in light of his prior cooperation and initial
indication that he was willing to talk; the detectives’ responses to the purported
invocation were “exclamations of surprise”; and, immediately after those
exclamations, Cliett stated, “I’ll talk,” and signed a written Miranda waiver. Based
on these factual determinations, I would hold that the Court of Appeal reasonably
concluded that, taken in context, Cliett failed to unambiguously and unequivocally
invoke his right to remain silent.
However, our prior precedents, dealing with a state court’s conclusion that
surrounding circumstances similar to those presented here make an invocation
ambiguous, hold that such a conclusion was contrary to and an unreasonable
application of clearly established Supreme Court authority. See Anderson v.
Terhune, 516 F.3d 781, 787 (9th Cir.) (en banc), cert. denied, Cate v. Anderson,
555 U.S. 818 (2008). As I have expressed in the past, I disagree not only with this
reading of Miranda and its progeny, but also with the utter lack of deference it
accords to state courts’ reasoned decisions. See, e.g., id. at 797–801 (Tallman, J.,
dissenting); Doody v. Ryan, 649 F.3d 986, 1029–30 (9th Cir.) (en banc) (Tallman,
J., dissenting), cert. denied, 132 S. Ct. 414 (2011). Nevertheless, I am bound by
our precedents to the extent that they have declared what constitutes clearly
established law. See, e.g., Byrd v. Lewis, 566 F.3d 855, 860 n.5 (9th Cir. 2009).
I therefore reluctantly concur.