Anderson v. Terhune

TALLMAN, Circuit Judge, with whom CALLAHAN, Circuit Judge,

joins, dissenting:

Lewis Carroll was right: “When I use a word ... it means just what I choose it to mean, neither more nor less.” Lewis Carroll, Alice’s Adventures in Wonderland 163 *798(Donald J. Gray ed., W.W. Norton 1973) (1871). My colleagues in the majority fixate on the words “plead the Fifth” lifted in isolation from a portion of the transcribed interview without giving the required level of deference to the trial court’s findings of fact after an evidentiary hearing, which included the entire tape recording and the testimony of the interrogators. No one disputes that Jerome Alvin Anderson, a known felon on parole, admitted to killing his acquaintance and friend, Robert Clark: Anderson admitted, “I shot [Clark].” Nor does anyone dispute that Anderson answered questions for nearly two and one-half hours before making the statement, “I plead the Fifth.”

The California courts examined Anderson’s statement in the full context of his confession. Following an evidentiary hearing, the Shasta County Superior Court Judge made a factual finding that “while the defendant articulated words that could, in the isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview.” (Emphasis added). In affirming the trial court’s decision to deny Anderson’s motion to suppress his later confession because it was knowing and voluntary, the California Court of Appeal neither unreasonably applied clearly established Supreme Court precedent, nor made an unreasonable determination of facts. The state courts’ conclusion that Anderson’s comments were ambiguous in context was not an unreasonable application of clearly established Supreme Court precedent. Nor was their conclusion that the detective’s follow-up question, “Plead the Fifth. What’s that?,” was a permissible clarification question an unreasonable determination of fact. I respectfully dissent.

I

We may grant habeas relief only if the California Court of Appeal acted contrary to or unreasonably applied clearly established Supreme Court precedent, or made an unreasonable determination of facts. See 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “[C]learly established Federal law under § 2254(d)(1) [ (the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’)) ] is the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166 (internal quotation marks omitted). The Court has stated that a “state court decision is contrary to ... clearly established [Supreme Court] precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [its] precedent.” Id. at 73, 123 S.Ct. 1166 (internal quotation marks omitted).

There is an open question in Supreme Court jurisprudence on issues involving the invocation of a suspect’s Fifth Amendment right to remain silent. Clearly established Supreme Court precedent in the arena of the right to remain silent is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96, 101, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In Miranda, the Supreme Court held that “[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74, 86 S.Ct. 1602. Once a defendant has invoked his right to remain silent, that right must be “scrupulously honored.” Mosley, 423 U.S. at 103-04, 96 S.Ct. 321. While the Su*799preme Court has addressed the substance of the right to remain silent in Miranda and Mosley, at no time has the Court addressed how that right is to be invoked.

In comparison, under clearly established. Supreme Court precedent, a suspect’s statements to invoke his Fifth Amendment right to counsel under Miranda must be clear and unequivocal. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The determination of whether the suspect clearly invoked his right to counsel requires an objective inquiry. Id. at 458-59, 114 S.Ct. 2350. The suspect must, “at a minimum, [give] some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Id. at 459, 114 S.Ct. 2350 (internal quotation marks omitted). A statement is ambiguous when a “reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Id. (first emphasis added).

The United States Supreme Court has never declared its right to counsel principles applicable to invoking the right to silence, and under AEDPA that precedent was not “clearly established” when the California Court of Appeal rendered its decision. See Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir.1999) (recognizing that Davis was concerned only with the right to counsel, and not the right to remain silent). Indeed, in prior cases, we have declined to determine whether the rule in Davis when invoking the right to counsel applied with equal force to the right to remain silent. See Arnold v. Runnels, 421 F.3d 859, 866 n. 8 (9th Cir.2005); United States v. Soliz, 129 F.3d 499, 504 n. 3 (1997), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir.2001) (en banc) (per curiam); Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996). Other circuits have made that leap. See, e.g., Arnold, 421 F.3d at 870 & n. 1 (Callahan, J., dissenting) (collecting cases).

In circumstances where there is no “clear-cut Supreme Court rule that certain magic words automatically bring all questioning to a halt — regardless of the circumstances surrounding the interrogation,” Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir.2006), reh’g en banc granted, 486 F.3d 1155 (2007), we simply cannot say that the California Court of Appeal unreasonably applied clearly established Supreme Court precedent. See Carey v. Musladin, — U.S. -, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006) (concluding that the state court’s determination was not an unreasonable application of Supreme Court precedent because there was no Supreme Court precedent addressing that area of law). Invoking the lyrics of a popular Country-Western song in lieu of Supreme Court authority is not good enough under AEDPA.

Nor can we grant habeas relief because, when lacking clearly established Supreme Court precedent, the California Court of Appeal looked to Supreme Court law in another context for guidance. In holding that Anderson’s statement was ambiguous, and that the detective’s follow-up question could reasonably be interpreted as a “legitimate clarifying question,” the California Court of Appeal applied the Supreme Court’s precedent in Davis. It looked at the totality of the circumstances to determine that a reasonable officer could have understood only that Anderson may have intended to invoke his Fifth Amendment right to remain silent. See Davis, 512 U.S. at 459, 114 S.Ct. 2350. Given the lack of a holding from the Supreme Court addressing invocation of the Fifth Amendment right to remain silent, it cannot be said that the California Court of Appeal *800applied a standard that was “contrary to” clearly established Supreme Court precedent. Cf Musladin, 127 S.Ct. at 654.

II

Having failed to heed AEDPA and to acknowledge the lack of clearly established Supreme Court authority on invoking one’s Fifth Amendment right to silence, the majority proceeds to fault the California courts for considering Anderson’s statement in the context of the interview. Maj. Op. at 787. Despite the majority’s misconceptions, we simply cannot pluck the words “I plead the Fifth” out of the transcript and declare we have an unambiguous statement. See Maj. Op. at 787 (“Using ‘context’ to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law.”). It defies common sense to determine what an objectively reasonable officer would have understood without looking at the totality of the interview. See Davis, 512 U.S. at 459, 114 S.Ct. 2350.

As Judge Silverman aptly displays, see Silverman Concurrence at 1399, when considered in context, the state courts reasonably concluded that there is ambiguity in Anderson’s statement.1 While the majority may disagree with the conclusion, that is simply insufficient to declare the California Court of Appeal’s holding “unreasonable.” We have been told before that objectively unreasonable means something more than we think the state courts were wrong. “[A]n unreasonable application of federal law is different from an incorrect application.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Schriro v. Landrigan, — U.S. -,- 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) (stating that under AEDPA the petitioner must meet the “substantially higher threshold” of unreasonableness); Brown v. Payton, 544 U.S. 133, 143, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (denying AEDPA relief because “[e]ven on the assumption that [the state court’s] conclusion was incorrect, it was not unreasonable”); Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (“We may not grant respondent’s habeas petition ... if the state court simply erred in concluding that the State’s errors were harmless. ...”); Lockyer, 538 U.S. at 75, 123 S.Ct. 1166 (reversing us because, by defining “unreasonable application” as “clear error,” we “fail[ed] to give proper deference to state courts by conflating error (even clear error) with unreasonableness”); Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (reversing us because we failed to observe the distinction between an incorrect application and an unreasonable application).

Therefore, even if we could grant habeas relief in the absence of clearly established Supreme Court precedent, I would deny the petition. The California courts’ application of Davis and its finding of ambiguity was reasonable.

Ill

The only other way to grant Anderson habeas relief requires the majority to overrule the California Court of Appeal’s factual finding. My colleagues have to find that the state court conclusion was “an unrea*801sonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). But in considering Anderson’s motion to suppress, the Shasta County trial court considered live testimony from the interrogating officers and heard the audiotapes of the confession. The California Court of Appeal then adopted the trial court’s factual finding verbatim:

Given the totality of the circumstances in this matter, the court concludes that while the defendant articulated words that could, in ... isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview. The interrogating officer did not continue or reinitiate the interview by posing the question. “Plead the Fifth. What’s that?” The questions can reasonably be characterized as a request for clarification or confirmation that the defendant wished to assert his right to remain silent, and nothing more. What followed is important to a determination of the question. Specifically, the defendant launched off on a discourse and, ultimately, engaged in a debate without making any reference to an invocation of the right to remain silent. It was the defendant, not the interrogators, who continued the discussion. Accordingly, while words of invocation were spoken by the defendant, the court concludes that, in any case, he effectively waived the right to remain silent by what followed.

Moreover, the California Court of Appeal took note of an interrogating officer’s testimony during the hearing on the motion to suppress. “[T]he interrogating officer testified he believed that in saying, “I plead the Fifth[,]” [Anderson] was simply indicating an unwillingness to discuss the details of his drug use, and not a desire to terminate the interrogation.”

This is not a situation where a suspect clearly states his or her intent (such as when a witness invokes his Fifth Amendment right to refuse to answer a specific question at trial). Cf. Arnold, 421 F.3d at 861-62 (finding that Arnold unequivocally invoked his right to remain silent when he told the officers that he did not want to talk on tape). Instead, in response to a direct question about his drug use, Anderson, after willingly answering questions about the murder for two and one-half hours, responded “I plead the Fifth.” The officers did not respond by asking Anderson more questions about his drug use. Rather, the officer asked, “Plead the Fifth. What’s that?” Having considered all of the evidence, the Shasta County Superior Court found as a matter of fact that Anderson did not intend to end the interview and that the officers asked a legitimate clarifying question. Anderson does not challenge the state court’s fact-finding process, and he has failed to rebut the trial court’s factual finding by clear and convincing evidence, as he must under AEDPA. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004) Admittedly, the detective could have phrased his clarifying question differently, and perhaps he should have uttered it with less sarcasm, but a poorly-phrased question without more is not grounds to grant federal habeas corpus relief.

AEDPA mandates comity and deference to California’s decision that Anderson’s confession was voluntary. Rejecting it, the majority decrees that a murderer “is to go free because the constable has blundered.” See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926) (Cardozo, J.).

I respectfully dissent.

. Where I part company with my brother Silverman is in his conclusion that the sheriffs detective was being sarcastic and already understood what Anderson meant by “pleading the Fifth'' when he asked for clarification. See infra, § III. In the face of the trial judge’s factual determination that an ambiguity existed triggering the detective's justification for seeking clarification, AEDPA dictates that we defer to the trial court.