dissenting:
This case is before our en banc panel for a second time after the Supreme Court vacated our prior opinion and remanded for further consideration in light of Salinas v. Texas, — U.S. -, 138 S.Ct. 2174, 186 L.Ed.2d 376 (2013). I concur in Judge Murguia’s dissent. I write separately to stress that I read the Supreme Court’s remand for further consideration in light of Salinas as precluding the majority’s conclusion that Sessoms’s comments were so unambiguous as to render the California Court of Appeal’s opinion unreasonable.
Although Salinas concerned the right to remain silent rather than the right to counsel, Justice Alito’s plurality opinion in Salinas sets forth a controlling perspective.1 He first reiterated that “[t]he privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.”’ 133 S.Ct. at 2179 (quoting Garner v. United States, 424 U.S. 648, 658 n. 11, 96 S.Ct. 1178, 47 L.Ed.2d 370). He explained that the requirement that the privilege be clearly invoked:
ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U.S. 441, 448, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
133 S.Ct. at 2179. Justice Alito further elaborated that “[a] witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.”2 Id. at 2183.
The application of this perspective to Sessoms’s situation precludes a finding that the California Court of Appeal’s decision was “based on an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
*633The opinions in Salinas confirm that the Supreme Court had not previously ruled on the degree of certainty required for a pr e-Miranda request for counsel. Justice Alito saw Salinas’s unexplained silence in response to the prosecutor’s question as ambiguous. He does not deny that Salinas could have asserted his right against self-incrimination under the Fifth Amendment as his reason for declining to answer. Nor does he deny that if Salinas had invoked his rights under the Fifth Amendment, the prosecutor would have been barred at trial from commenting on Salinas’s silence.
The logic behind the determination that Salinas’s silence was ambiguous leads to the conclusion that Sessoms’s comments concerning counsel were also ambiguous. In both instances the defendants were at police stations. Although Salinas may not have been “in custody,” Sessoms had voluntarily placed himself in custody. In both instances, the officers had legitimate reasons for needing specificity. In Salinas, as noted, the officers could have considered grants of immunity. Similarly, with Sessoms, the officers might have considered grants of immunity and definitely needed to know whether under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), they were required to cease the interrogation even before they gave a Miranda warning.
As a practical matter, Salinas’s reason for not answering the officer’s question was more obvious than Sessoms’s intent. The officer asked Salinas whether his shotgun would match the shells recovered at the scene of the murder. Salinas, 133 S.Ct. at 2178. It is hard to imagine a question that more obviously calls for an incriminating answer. In contrast, as Judge Murguia’s dissent notes, Sessoms’s statements are in themselves ambiguous.3 In light of the case law cited by Judge Murguia, the California Court of Appeal’s decision that Sessoms’ statements were ambiguous cannot be considered “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
The majority, perhaps seeking to avoid this conclusion, purports to grant relief on the first prong of § 2254(d), holding that the California Court of Appeal “landed on an unreasonable application of clearly established federal law.” Maj. Op. at 629-30. The State court’s alleged failings were that it “analyzed each statement separately, [and] did not explore the context in which the statements were made.” Id.
The California Court of Appeal’s decision, however, speaks for itself. The court wrote:
“ ‘[A] statement either is such an assertion of the right to counsel or it is not.’ [Citation.] Although a suspect need not ‘speak with the discrimination of an Oxford don,’ [citation], 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 requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. [Citation.]” (Davis, supra, 512 U.S. at p. 459 [114 S.Ct. 2350].)
In the present case, although defendant twice explicitly referred to an attorney, neither statement was an unequivocal or *634unambiguous request for counsel. On the first occasion, defendant asked, “There wouldn’t be any possible way that I could have a ... lawyer present while we do this?” As the court found, this was a question, not an unambiguous request. Defendant’s second reference to an attorney was “Yeah, that’s what my dad asked me to ask' you guys ... uh, give me a lawyer.”
We find defendant’s first statement is legally indistinguishable from the equivocal remarks in Davis, “ ‘Maybe I should talk to a lawyer’ ” (Davis, supra, 512 U.S. at p. 455 [114 S.Ct. 2350]), and in People v. Crittenden (1994) 9 Cal.4th 88, 123 [36 Cal.Rptr.2d 474, 885 P.2d 887] (Crittenden), “ ‘Did you say I could have a lawyer?’ ” These equivocal remarks in Davis and Crittenden were not requests for counsel triggering the Edwards rule. (Davis, supra, 512 U.S. at p. 462 [114 S.Ct. 2350].) Similarly, “[i]n the present case, defendant did not unequivocally state that he wanted an attorney, but simply asked a question.” (Crittenden, supra, 9 Cal.4th at p. 130 [36 Cal.Rptr.2d 474, 885 P.2d 887].)
Nor was defendant’s second reference to an attorney an unequivocal request for an attorney. At best, it was a statement of his father’s advice to him. We cannot find such a statement to be “sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Davis, supra, 512 U.S. at p. 459 [114 S.Ct. 2350].)
People v. Sessoms, No. C041139, 2004 WL 49720 at *3 (Ca.Ct.App. Jan. 12, 2004) (citations as set forth in the original).
Indeed, the majority opinion appears to reflect a disagreement with the California Court of Appeal’s view of the facts, not its application of clear Federal law.4 The opinion states: “[t]he only reasonable interpretation of ‘give me a lawyer’ is that Sessoms was asking for a lawyer,” Maj. Op. at 627; “[v]iewed in the context of Sessoms’s prior request that the detectives make counsel available to him during the interrogation, it was unreasonable to hold that Sessoms’s second statement, ‘give me a lawyer,’ was an ambiguous request for counsel,” Maj Op. at 627; and “[t]here was no ambiguity regarding what Sessoms wanted: a lawyer.” Maj. Op. at 629. These appear to be disagreements with the State court’s view of the facts, not with the application of clear Federal law.
Critically, some of the reasons offered by the majority to support its conclusion were rejected by the Supreme Court in Salinas. The majority asserts that the “detectives understood that Sessoms was requesting counsel,” Maj. Op. at 626; and that the “detectives’ behavior confirms that — like any reasonable law enforcement officers — they understood that Sessoms was requesting counsel.” Maj Op. at 628. However, the plurality opinion in Salinas noted that the Court had “repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness.” 133 S.Ct. at 2181. Thus, as in Salinas, whether *635Sessoms’s statements were ambiguous does not turn on whether the detectives probably understood that Sessoms was requesting counsel.5
Furthermore, as Judge Murguia notes in her dissent, the detectives’ reaction was consistent with concerns that Sessoms might be invoking his right to counsel. As Justice Alito explained in Salinas, the Government is entitled to a clear invocation in order that it may consider curing “any potential self-incrimination through a grant of immunity.” 133 S.Ct. at 2179. Here, the detective did not ignore Sessoms statements, but returned to the subject, telling Sessoms “[i]f you said you didn’t want to make any statement without an attorney, we’re not really going to be able to talk to you.” In response, Sessoms did not ask for counsel. Nor is he claiming that he was pressured into an involuntary waiver. Rather, he asserts that his two statements were so clear as to require the immediate cessation of questioning. I do not read the Supreme Court’s opinions in Salinas, or Davis, as directing such a conclusion.
Because Supreme Court precedent does not compel a determination, either as a matter of law or fact, that Sessoms’s statements, either separately or together, constitute an unambiguous invocation of his right to counsel, we are compelled to deny him relief. “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). Indeed, recognizing the deference due to the California Court of Appeal’s determination is the most reasonable explanation for why the Supreme Court vacated our prior en banc opinion and remanded the case for consideration in light of Salinas. I would follow the Supreme Court’s advice rather than challenge it to order our compliance.
. Sessoms's claim would clearly fail under Justice Thomas’s concurring opinion, which Justice Scalia joined. Justice Thomas wrote: “In my view, Salmas' claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.” 133 S.Ct. at 2184.
. Justice Alito added the following footnote:
The dissent suggests that officials in this case had no "special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” Post, at 2186-2187 (opinion of BREYER, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment.
133 S.Ct. at 2183 n. 4. The majority appears to succumb to “judicial hypothesizing.”
. It might further be noted that as a practical matter, a suspect may, on occasion, benefit from waiving his Miranda rights in exchange for immunity or a bargained sentence. This reality supports the requirement that a request for counsel be unambiguous because a defendant may mention his Fifth Amendment rights as a negotiating tactic.
. The majority’s distinction between a determination of fact and the application of clearly established Federal law is less than clear. It notes that the California Court of Appeal identified "the governing Supreme Court precedents, Miranda, Edwards and Davis," but then opines that the court "unreasonably applied those precedents by analyzing Sessoms’s statements in isolation rather than collectively and in context.” Maj. Op. at 625. This suggests that where, as here, the underlying facts are not disputed, a determination of whether a suspect's statement concerning counsel is ambiguous is a question of law, not fact. This does not seem right.
. Such a test was implicitly rejected in cases such as Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ("Maybe I should talk to a lawyer.”); and United States v. Younger, 398 F.3d 1179, 1187 (9th Cir.2005) ("[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?”). In both instances, the officers probably understood the intent behind the defendants’ ambiguous statements.