joins, concurring in the judgment:
The Supreme Court has taken pains to remind us that “[a]n unreasonable application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (emphasis in original; quotation omitted). I write separately because I believe the majority opinion fails to “observe this distinction,” id., in its treatment of the California Court of Appeal’s ruling that Anderson’s statements were “ambiguous in context.” I concur in the result because the California Court of Appeal rendered an unreasonable determination of the facts when it ruled that the officer’s feigned ignorance of the Fifth Amendment was a “legitimate clarifying question.”
The first question we face is whether the state court acted contrary to or unreasonably applied Supreme Court law in holding that the police were entitled to clarify the statements Anderson made two hours into the interview. See 28 U.S.C. § 2254(d)(1). If Anderson had said, “I plead the Fifth” immediately after having been read his rights, there would be no room for debate. The right to remain silent clearly would have been invoked. Here, however, after having been read his rights, Anderson answered questions for some two hours before making the statements now in issue. He indicated that he “don’t even wanna talk about this no more,” and in the next breath said, “We can talk about it later or whatever.” (Anderson says he does not *793argue that these statements were an unequivocal invocation of the right to remain silent.) He then proceeded to answer more questions. The conversation eventually turned to Anderson’s drug use. At that point, he said he was “through with this” and wanted to be “taken in custody,” even though he was already in custody. Then, when asked about his dope pipes, he said, “I plead the [F]ifth.”
What did Anderson mean by asking to be “taken in custody,” in light of the fact that he was already in custody? What did he mean when he said he would “talk about it later or whatever? ” Did Anderson’s “pleading the Fifth,” coming as it did after two hours of talking, mean that he wanted to terminate the interview in its entirety, or was he referring to the immediate question?
The California Court of Appeal ruled that Anderson’s statements “were ambiguous in context” and that the officers thus were justified in seeking clarification. This conclusion was not “contrary to” Supreme Court law, because the Supreme Court has held that officers have no obligation to stop questioning a suspect who has made an ambiguous or equivocal invocation of Miranda rights. Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Indeed, the Supreme Court has specifically stated that when a suspect makes an ambiguous statement “it will often be good police practice” for interviewing officers to ask “clarifying questions” about the suspect’s meaning. Id. at 461, 114 S.Ct. 2350.
Nor did the state court make an “unreasonable application” of this precedent in concluding that the officers were entitled to seek clarification from Anderson. The question before us is not whether we agree with the state court’s assessment of the ambiguity of Anderson’s statements, or even whether it is right or wrong, but only whether that court’s decision on that point was unreasonable. In my view, it was not unreasonable.
It’s a different story when it comes to assessing the legitimacy of the “clarifying question” that the officer asked. Instead of asking Anderson what he intended to convey, the officer responded to Anderson’s “pleading the Fifth” by saying, “Plead the fifth. What’s that?” As to this, the California Court of Appeal ruled as follows: “By asking defendant what he meant by pleading the fifth, the officer asked a legitimate clarifying question.” By any measure, this is an unreasonable determination of the facts. The problem with the California Court of Appeal’s ruling is that, in point of fact, the officer did not ask Anderson “what he meant.” Rather, he feigned ignorance of what the Fifth Amendment is. One of the stated reasons for Miranda’s requirement that officers inform suspects of their rights is to “show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.” Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Instead of asking a question aimed at clarifying Anderson’s meanings, the officer pretended not to know about the very rights he informed Anderson of at the outset.
The California Court of Appeal’s ruling that the officer asked a legitimate clarifying question is an unreasonable determination of the facts, and resulted in a decision that is contrary to Miranda. Having failed to clarify whether Anderson was exercising his right to terminate questioning, the officers could not lawfully continue the interview. Under Miranda, anything Anderson said after that point should have been suppressed. 384 U.S. at 479, 86 S.Ct. 1602. It is for this reason that I would reverse the district court’s denial of the writ.