Darious Mays v. Ken Clark

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DARIOUS A. MAYS, No. 12-17189
Petitioner-Appellant,
D.C. No.
v. 2:10-cv-00533-LKK-CHS

KEN CLARK, Warden,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted November 19, 2014
Submission Deferred January 8, 2015
Resubmitted December 8, 2015
San Francisco, California

Filed December 8, 2015

Before: Sidney R. Thomas, Chief Judge and Stephen
Reinhardt and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 MAYS V. CLARK

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of Darious
Antoine Mays’s habeas corpus petition challenging his
conviction for first-degree murder.

The panel held that the California Court of Appeal
unreasonably applied Miranda v. Arizona, 384 U.S. 436
(1966), and Davis v. United States, 512 U.S. 452 (1994),
when it concluded that Mays’s invocation of the right to
counsel was ambiguous or equivocal. The panel also held
that the California Court of Appeal contravened or
unreasonably applied Smith v. Illinois, 469 U.S. 91 (1984),
when it used Mays’s post-invocation responses to cast doubt
on the clarity of his request for counsel.

The panel held that although Mays’s inculpatory
statements were therefore improperly admitted at trial, the
California Court of Appeal’s harmlessness determination was
not objectively unreasonable, and that under the deferential
AEDPA standard of review, Mays is not entitled to habeas
relief.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MAYS V. CLARK 3

COUNSEL

Marylou Elin Hillberg (argued), Sebastopol, California, for
Petitioner-Appellant.

David Andrew Eldridge (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General; Michael P. Farrell,
Senior Assistant Attorney General; and Brian G. Smiley,
Supervising Deputy Attorney General, Office of the
California Attorney General, Sacramento, California, for
Respondent-Appellee.

OPINION

CHRISTEN, Circuit Judge:

At age 17, Darious Antoine Mays was charged with
murdering Sheppard Scott as Scott sat in his car at a drive-
through Jack In the Box restaurant. A detective conducted a
custodial interrogation of Mays. During the interrogation,
Mays requested a lawyer. Instead of ceasing the
interrogation, the detective continued to question Mays and
ultimately administered a fake polygraph test. When
confronted with fabricated test results, Mays admitted to
being present at the scene and to being one of two individuals
depicted in a security camera photograph of the crime scene.

The state trial court denied Mays’s motion to exclude his
statements. Mays was convicted of first-degree murder and
sentenced to life without possibility of parole. The California
Court of Appeal affirmed Mays’s conviction, reasoning that
his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
were not violated during the interrogation, and that even if
4 MAYS V. CLARK

they were, the admission of his statements at trial was
harmless beyond a reasonable doubt.

Mays petitioned the federal district court for habeas relief
under 28 U.S.C. § 2254. The district court concluded the
California Court of Appeal’s determination that no Miranda
violation occurred was an unreasonable application of
Supreme Court precedent, but also decided that the admission
of the statements was not prejudicial. We agree with the
district court’s reasoning and affirm the denial of Mays’s
habeas petition.

BACKGROUND1

In the early morning hours of January 24, 2005, Sheppard
Scott and his girlfriend, Yalandria Narcisse, were in a car at
a Jack In the Box drive-through waiting to order food.
People v. Mays, 95 Cal. Rptr. 3d 219, 223 (Cal. Ct. App.
2009). Surveillance cameras captured two individuals outside
an adjacent AM/PM store. Id. at 224. Witnesses agreed that
one was wearing an orange Orioles jacket. The other wore a
gray hooded sweatshirt. Id. at 223–24. Witnesses also

1
Under the Antiterrorism and Effective Death Penalty Act, “state court
findings of fact are presumed correct unless rebutted by clear and
convincing evidence.” Gonzales v. Pliler, 341 F.3d 897, 903 (9th Cir.
2003) (citing 28 U.S.C. § 2254(e)(1)). Both Mays and the State rely
heavily on the California Court of Appeal’s decision in framing the
underlying facts of the case, and we do the same. We note that the
California Court of Appeal’s opinion in this case was certified only for
partial publication. The “factual and procedural background” section,
which discusses the evidence adduced at Mays’s trial, was published, and
we have included reporter citations where we rely on it. The section of the
California Court of Appeal’s opinion addressing Mays’s interrogation and
his Miranda claim was not published but was included in the excerpts of
record for this case.
 MAYS V. CLARK 5

agreed that one of those two individuals shot Scott several
times. Id. at 224–25.

Mays was arrested in connection with the crime on the
afternoon of February 9, 2005. He was taken to the police
station and questioned by Detective Charles Husted. The
interview was videotaped.

I. The Interrogation

At the outset of the interview, Detective Husted read
Mays his Miranda rights and asked if Mays understood each
right. Mays’s responses were affirmative or inaudible.
Detective Husted then asked Mays if he knew why he was
being detained. Mays responded: “Because of the shit that
seen on the news. . . . My face is wanted for questioning for
a murder.” But Mays denied having any involvement in the
murder.

Detective Husted told Mays that witnesses had identified
him, and presented Mays with a photograph from an AM/PM
surveillance video of an individual wearing a gray sweatshirt.
Mays denied being depicted in the photo. He argued his nose
was shorter, and his only gray sweatshirt had “South Pole”
written on it. Detective Husted left the room and returned
with a different photo. Mays admitted to being the person
depicted in this photo, and Detective Husted told Mays this
photo was merely a photocopy of the first. Detective Husted
told Mays to stop lying. Mays responded: “Can you – can
you give me a lie detector test? I guarantee you I’ll pass a
hundred percent.” Detective Husted expressed doubt that
Mays could pass a polygraph test, and then the following
exchange ensued:
6 MAYS V. CLARK

MAYS: Look. Can I – can I call my dad so
I can have a lawyer come down ‘cause I’m –
I’m telling you, I’m –

DET. HUSTED: Call who?

MAYS: My – my step-dad ‘cause I’m – I’m
going to tell you I’m going to pass that test a
hundred percent.

DET. HUSTED: Okay. Well, we don’t need
your step-dad right now.

MAYS: I know. He got my lawyer.

DET. HUSTED: Who’s your lawyer?

MAYS: My – my step-dad got a lawyer for
me.

DET. HUSTED: Okay. So what do you want
to do with him?

MAYS: I’m going to – can – can you call
him and have my lawyer come down here?

DET. HUSTED: [Unintelligible.]

MAYS: I’m telling you – I’m telling you this
is not me.

DET. HUSTED: Well, it – you’ve been
identified.
 MAYS V. CLARK 7

MAYS: Can you give me a lie detector test?

DET. HUSTED: [Unintelligible.]

MAYS: I’ll guarantee you I’ll pass it.

DET. HUSTED: [Unintelligible.]

MAYS: What you all – and what you all
going to say then?

DET. HUSTED: Well, I don’t –

MAYS: What you all going to say when I
pass it?

DET. HUSTED: I don’t think you’ll pass.

MAYS: I guarantee you I’ll pass it.

DET. HUSTED: Well, I don’t – I don’t think
–

MAYS: Can I get one?

DET. HUSTED: Yeah. I will.

MAYS: Can I get one?

DET. HUSTED: Do you want – do you want
to make a statement about what happened?

MAYS: I’m telling you this is not me, sir.
8 MAYS V. CLARK

DET. HUSTED: Okay.

MAYS: I’m not – I’m not going to sit here
and lie to you.

DET. HUSTED: All right.

MAYS: You can give me a lie detector test,
and I’ll guarantee you I’ll pass it.

DET. HUSTED: And you weren’t out there?

MAYS: I was not up there. I was at Ramone
house. I’m going to tell you the whole night
that – what – what – what, ah, the night –

DET. HUSTED: Well, it’s up to you. I mean,
do you want the attorney down before you
make the statement or do you want to make a
statement and tell me what’s going on?

MAYS: I want a lie detector test.

DET HUSTED: Okay. I – it’s going to take
a minute for me to set that up.

MAYS: Sir.

DET. HUSTED: Do you want to tell me the
story or do you want me to [unintelligible]?

MAYS: I’m telling you – I’m telling you –
ask Ramone where I was the day that the sho
– that the stuff that happened. He going to tell
 MAYS V. CLARK 9

you I was at his house sleeping on the couch.
I was at his house for two weeks.

DET. HUSTED: I – I tri – I already asked
him that. He knows –

MAYS: I was at his house for two weeks
straight.

DET. HUSTED: Okay.

MAYS: And if I’m not there, I’m at – I’m at
my girl auntie house sleep. I’m telling you,
sir, this is not me at all.

DET. HUSTED: All right. Do you mind
answering some questions?

MAYS: Yes, sir.

Detective Husted proceeded to ask Mays several
questions, and Mays continued to deny any involvement in
the crime. Detective Husted left the room. When he
returned, the following exchange ensued:

DET. HUSTED: Looks like I may have found
somebody to do it for you. Okay? Give you
the polygraph. Still working on
[unintelligible]. But I just wanted to clarify
and make sure that I’m not violating your
Miranda Rights or anything like that. Um, do
you want to do the polygraph and talk to the
person? Answer the questions? Is that what
you want to do?
10 MAYS V. CLARK

MAYS: Yes, sir.

DET. HUSTED: Okay. Well, you – you had
mentioned something about your step-dad
having an attorney for you and so I said I
don’t want to violate your Miranda Rights
and do all that. But it seems like you’re being
cooperative, so I just want [to] get a clear idea
of where you’re coming from.

MAYS: Huh?

DET. HUSTED: I was – (cough) – excuse
me. I was getting some peanuts. I just want
to get a clear idea of where you’re coming
from. Do you want to talk to the polygraph
guy? Go through his questions?

MAYS: Yeah.

DET. HUSTED: So you’re willing to do that?

MAYS: Yes, sir.

DET. HUSTED: Okay. Let me go see if – if,
ah, he for sure can do it. And then, ah, we’ll
set you up. Is that okay?

Detective Husted left the room once again. When he
returned, he told Mays that he was still working on the
polygraph test and that his partner was talking to Mays’s
girlfriend. Detective Husted continued to question Mays, and
Mays continued to deny involvement in the crime and to
repeat his request for a lie detector test. Detective Husted
 MAYS V. CLARK 11

then brought Mays’s girlfriend in and permitted her to speak
with Mays alone in the interrogation room. When Detective
Husted returned, Mays asked to make a phone call. Detective
Husted left and another officer entered and asked whether
Mays wished to make a phone call. Mays told the officer he
wanted to call his mother, and the officer left.

Detective Husted returned and asked yet more questions.
Mays continued to deny involvement in the crime and again
repeated his request for a lie detector test. Detective Husted
left and returned, and Mays repeated his request for a phone
call. Detective Husted told Mays his mom might not be
available. Mays responded: “Can I – can I call my grandma
at least? I need – I need to call somebody.” Detective Husted
said he was trying to get someone to administer a polygraph
and could “[o]nly do one thing at a time.”

As it turns out, no polygraph examiner was available and
Detective Husted’s supervisor authorized a “mock polygraph”
test. “[T]he police placed on [Mays’s] body patches
connected to wires, pretended to administer a lie detector test,
fabricated written test results, showed [Mays] the fake results,
and told him the results showed he failed the test.” Id. at 226.
Mays expressed skepticism, and Detective Husted suggested
that perhaps Mays had been present at the crime and felt
responsible. Id. At this point, Mays changed his story and
made various inculpatory statements. The California Court
of Appeal summarized:

[Mays] then admitted he was present at the
shooting, and he was the person wearing the
gray sweatshirt in the AM/PM photo, but he
said he knew nothing about the shooting in
advance and did not participate. He said the
12 MAYS V. CLARK

shooter was the person in orange, whom [he]
had just met that day. The day after the
shooting, the shooter found [Mays] and
threatened him. [Mays] admitted gang
membership. [Mays], who cut his hair after
the shooting, first said his brother made him
cut it, but he did not remember why. [Mays]
immediately thereafter said he guessed the
reason was because his cousin said the
victim’s brother mistakenly thought [Mays]
was involved and was hunting for him.

Id. During questioning, Mays incorrectly identified the
passenger in the car as a male. Eventually, Detective Husted
revealed that three witnesses had identified the person in gray
as the shooter. Mays broke down crying, continued to insist
he did not shoot Scott, and asked for his mother. He said he
was going to kill himself. The interrogation ended when
Mays complained of chest pains and said he was born with a
hole in his heart.

II. Trial and Direct Appeal

Mays was charged with first-degree murder, with a
special circumstance of lying-in-wait and an enhancement for
personal discharge of a firearm causing death. Id. at 222–23.
Before trial, Mays moved in limine to exclude the inculpatory
statements he made to Detective Husted on the ground that
they were obtained in violation of Miranda. The trial court
denied the motion.
 MAYS V. CLARK 13

The California Court of Appeal described the evidence
adduced at Mays’s trial as follows:

Yalandria Narcisse testified she was the
victim’s girlfriend and was with him when he
was shot. Around 4:30 a.m. on January 24,
2005, they were in a car waiting to order food
at the Jack In The Box drive-through on
Norwood Avenue. Two persons standing
outside the adjacent “ampm” store asked if the
victim had any weed, and he said no. The
victim told Narcisse one of the two persons
insulted him, calling him a “bitch-ass nigger
or something.” She said she did not hear that.
The victim got out of the car and engaged in
an animated conversation with the two
persons, during which the victim stated a gang
affiliation. As the victim walked back to the
car, Narcisse saw one of the persons, dressed
in orange (an Orioles jacket), pass something
to the other person, who was dressed in a gray
hooded sweatshirt. The victim collected the
food and drove to the exit. Somebody yelled,
“hey, homey,” and the victim stopped the car.
The gray-clad male came up to the car and
said he wanted to apologize. The victim said
to forget about it. The person in gray held out
his hand to shake. The victim, still seated in
the car, held out his hand. The person in gray
pulled out a gun, fired several shots at the
victim, and ran off (following the person in
the orange jacket).
14 MAYS V. CLARK

Narcisse (and other witnesses) said the
shooter fired the gun with his right hand.
Defendant (and others) testified defendant is
left-handed. Narcisse testified, “The guy in
the gray sweater took out his hand, took out
his hand to shake, to shake [victim]
Sheppard’s and then Sheppard stuck out his
hand and when the guy pulled out his hand he
had a gun and he started shooting.” This
would only make sense if the shooter had the
gun in the hand other than the one he
extended to shake hands. Narcisse thought
the shooter had gold teeth (defendant does not
have and denies ever having worn gold teeth),
and from her seated position she thought the
shooter stood about 5 feet 1 inch tall
(defendant is 5 feet 7 inches tall).

Narcisse and the victim had been drinking
alcohol that night. The police did not
determine the extent of Narcisse’s drinking.
An autopsy revealed the victim, who had a
blood alcohol level of .11 percent, was shot
six times.

Surveillance cameras at AM/PM did not
capture images of the shooting but did capture
images of the persons wearing gray and
orange and shows one of them pointing at the
victim’s vehicle as it passes through the
AM/PM parking lot on its way to Jack In The
Box. The images of the suspects are not clear.
 MAYS V. CLARK 15

Id. at 223–24 (footnotes omitted). The California Court of
Appeal then described the testimony of various additional
witnesses who happened to be present that morning. The
witnesses supported Narcisse’s testimony that the shooter was
the male in the gray sweatshirt, but they were either unable to
identify the shooter or were unsure if it was Mays. See id. at
224–25. The California Court of Appeal continued:

The prosecution sought (over defense
objection) to conduct a conditional
examination of Tamara Schallenberg, a
neighbor who considers defendant like a son,
on the ground she had phobias precluding
testimony in open court. A psychiatry
resident who treated her testified Schallenberg
has a panic disorder with agoraphobia,
characterized by sudden onset of shortness of
breath, chest pain, dizziness, and extreme fear.
Schallenberg has reported passing out when a
panic attack brought on an asthma attack. The
doctor did not believe Schallenberg was
faking. The doctor said Schallenberg may be
able to testify if she takes a sedative, but the
risk was oversedation. The court allowed a
conditional examination of Schallenberg in a
courtroom, in the presence of the judge, court
staff, counsel for both sides, and defendant;
the jury and the public were excluded. The
conditional examination was videotaped. The
court found the witness’s infirmity made her
unavailable to testify in open court. The
videotaped conditional examination was
played for the jury in open court.
16 MAYS V. CLARK

In her conditional examination, Schallenberg
denied making statements to the police,
including identification of defendant and his
brother as the persons depicted in the AM/PM
photos. She testified that she told the officer
the person in the photo might be defendant,
but she was not sure. She testified she never
saw defendant wear a light gray sweatshirt.
She denied ever seeing defendant deal drugs
and denied that he ever said he was a gang
member. Schallenberg testified she has
known defendant since 1999, and he is like a
son to her. She admitted that one day in
January 2005, she received a phone call from
defendant’s mother around 5:00 a.m. As a
result of the call, Schallenberg went out
looking for defendant, but she did not find
him. The next day, she saw defendant and
asked him what was going on. Defendant said
he was with his brother at the AM/PM, and
his brother shot somebody. In her conditional
examination, Schallenberg said defendant
laughed when he told her, but it was a
“scared” laugh. Schallenberg also admitted
that she and defendant had a telephone
conversation while he was in jail, in which he
said the investigator said she should testify in
court that she made false statements to the
police because she was mad at defendant.

Detective Charles Husted testified about his
audiotaped interview of Schallenberg. He
showed Schallenberg the AM/PM photo, and
she stated without hesitation that the person in
 MAYS V. CLARK 17

the gray sweatshirt was defendant. Husted
asked how she knew, and she said she knew
because she knows him. She also recognized
his sweatshirt, which he wore all the time,
which had “South Pole” written on its back.
She also said the person in the orange Orioles
hat and jacket was defendant’s older brother
“Rico” (Deladier Montue). Husted said
Schallenberg said defendant laughed like “he
thought it was funny” when he told her about
his being at the AM/PM when his brother shot
someone. Husted said Schallenberg said
defendant said he was a gang member, and
she had seen him apparently selling drugs.

Id. at 225 (footnote omitted). After again describing
uncertain or inconsistent witness testimony regarding the
shooter’s identity, id. at 226, the Court of Appeal continued:

Defendant’s girlfriend, Judy Perez, testified
she never spoke with defendant about the
shooting. She denied telling the police that
defendant said his brother was involved.
After the prosecutor showed Perez portions of
her videotaped conversation with police, she
admitted she told them that defendant said his
brother was involved (though she did not
remember telling them that).

Detective Husted testified [about his
interrogation of defendant]. . . .

. . . The videotaped police interview of
defendant was played for the jury.
18 MAYS V. CLARK

Defendant testified at trial. He is left-handed.
He denied ever wearing jewelry or gold teeth
(as some witnesses described the shooter). He
denied shooting Sheppard Scott and denied
even being present when Scott was shot. He
claimed his inconsistent statements to the
police were false admissions given only
because he felt defeated after the fake lie
detector test, which he did not know was fake,
and he just said what the police wanted to
hear. Defendant admitted prior trips to
Juvenile Court for fleeing police officers
while driving; none of his prior misconduct
involved assault with a gun. He admitted
selling drugs and being a member of a street
gang.

The defense tried to call as a witness Marcos
Adams (also known as Marcus Adams), but
he invoked his Fifth Amendment and refused
to answer questions.

Id. at 226–27 (footnote omitted). The California Court of
Appeal also noted that the police seized a gray hooded
sweatshirt with “South Pole” lettering at the time they
arrested Mays, but stated “the People acknowledge
defendant’s South Pole sweatshirt is not the sweatshirt
depicted in the AM/PM photos.” Id. at 225 n.4.

The jury convicted Mays of first-degree murder and found
true the special circumstance and firearm enhancement. Id.
at 227. The trial court sentenced Mays to life without
possibility of parole for the special circumstance murder, plus
a consecutive term of 25 years to life for the firearm
 MAYS V. CLARK 19

enhancement. Id. Mays appealed, arguing, among other
things, that the trial court erred by admitting the inculpatory
statements he made to Detective Husted because they were
obtained in violation of Miranda. Id. at 222–23.

The California Court of Appeal affirmed Mays’s
conviction. The court ruled there was no Miranda violation
because Mays’s request for an attorney was equivocal. The
court also ruled that “[e]ven assuming for the sake of
argument that a Miranda violation occurred, it would not
require reversal of the judgment” because the error “was
harmless beyond a reasonable doubt.” The California
Supreme Court denied Mays’s petition for review. Mays also
raised his Miranda claims in a petition for a writ of habeas
corpus filed in California state court. That petition was also
denied.

III. Federal Habeas Petition

Mays filed a petition for a writ of habeas corpus in federal
district court on February 23, 2010. The district court held
the California Court of Appeal’s ruling that no Miranda
violation occurred was an unreasonable application of clearly
established federal law. It also concluded that “the state
court’s rejection of the [Miranda] claim should stand because
the state court’s finding of no prejudice is a reasonable
application of clearly established Supreme Court precedent.”
It denied the petition but granted a certificate of appealability
on the Miranda claim.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 2253. We review
the district court’s denial of Mays’s § 2254 habeas corpus
20 MAYS V. CLARK

petition de novo. Gonzalez v. Duncan, 551 F.3d 875, 879
(9th Cir. 2008). We examine the last reasoned state-court
decision, which in this case is the opinion of the California
Court of Appeal. See Van Lynn v. Farmon, 347 F.3d 735,
738 (9th Cir. 2003). On habeas review, the Antiterrorism and
Effective Death Penalty Act (AEDPA) prevents us from
granting Mays’s petition unless the California Court of
Appeal’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).

“‘Clearly established Federal law’ . . . is the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.” Lockyer v.
Andrade, 538 U.S. 63, 71–72 (2003). A state court decision
is “contrary to clearly established Federal law” if “the state
court applies a rule different from the governing law set forth
in [the Supreme Court’s] cases, or if it decides a case
differently than [the Supreme Court] ha[s] done on a set of
materially indistinguishable facts.” Bell v. Cone, 535 U.S.
685, 694 (2002). A state court decision is an “unreasonable
application of clearly established federal law” if “the state
court correctly identifies the governing legal principle . . . but
unreasonably applies it to the facts of the particular case.” Id.
The Supreme Court has stressed that the state court’s
application of clearly established federal law must be
“objectively unreasonable” to meet AEDPA’s demanding
standard. Williams v. Taylor, 529 U.S. 362, 409 (2000).
“[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Id. at 410.
 MAYS V. CLARK 21

DISCUSSION

I. The California Court of Appeal’s ruling that no
Miranda violation occurred was an unreasonable
application of clearly established Supreme Court
precedent.

In Miranda v. Arizona, the Supreme Court held that a
suspect in a custodial interrogation has the right to have
counsel present, and police must explain this right to the
suspect before questioning begins. 384 U.S. 436, 469–72
(1966). The suspect may waive his right to counsel,
“provided the waiver is made voluntarily, knowingly and
intelligently.” Id. at 444. Even after a waiver, however, if
the suspect requests counsel, all questioning must cease. Id.
at 444–45; see also Edwards v. Arizona, 451 U.S. 477,
484–85 (1981) (“[A]n accused, . . . having expressed his
desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations
with the police.”). If the police do not cease questioning, the
suspect’s “postrequest responses to further interrogation may
not be used to cast doubt on the clarity of his initial request
for counsel.” Smith v. Illinois, 469 U.S. 91, 92 (1984) (per
curiam).

In Davis v. United States, the Supreme Court clarified that
a suspect’s request for counsel must be unambiguous.
512 U.S. 452, 459 (1994). The Court explained that “if a
suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect
might be invoking the right to counsel,” cessation of
22 MAYS V. CLARK

questioning is not required. Id. For example, Davis’s
statement to agents—“Maybe I should talk to a lawyer”—was
not an unambiguous and unequivocal invocation of the right
to counsel, and therefore suppression of Davis’s subsequent
statements was not required. See id. at 462.

Here, the California Court of Appeal correctly identified
Davis as governing Supreme Court precedent. It explained
that Mays’s first mention of a lawyer was the statement:
“Look. Can I – can I call my dad so I can have a lawyer
come down ‘cause I’m – I’m telling you, I’m –.” The state
trial court found this first reference to a lawyer was
“inaudible from the perspective of Detective Husted,” and the
California Court of Appeal held its “own viewing of the
videotape satisfies us that it was reasonable that the detective
did not hear this first reference to a lawyer.” The state court
therefore focused on the following exchange:

MAYS: My – my step-dad got a lawyer for
me.

DET. HUSTED: Okay. So what do you want
to do with him?

MAYS: I’m going to – can – can you call
him and have my lawyer come down here?

DET. HUSTED: [Unintelligible.]

MAYS: I’m telling you – I’m telling you this
is not me.

The court held that Mays’s question—“[C]an you call him
and have my lawyer come down here”—was equivocal. The
 MAYS V. CLARK 23

court also observed that “less than a second” occurred
between this question and Mays’s subsequent
statement—“I’m telling you – I’m telling you this is not
me”—and noted that Detective Husted subsequently sought
“to clarify whether [Mays] wanted to talk to his lawyer or
whether he wanted the lie detector test that he kept
demanding.”

Like the district court, we conclude that the California
Court of Appeal applied Miranda and its progeny in an
objectively unreasonable manner. Despite Detective
Husted’s response, “Call who?,” we accept as true the state
court’s factual finding that Detective Husted did not hear
Mays’s first reference to a lawyer. See 28 U.S.C.
§ 2254(e)(1). “We, therefore, do not rely on th[is]
statement[] as part of the context relevant to whether a
reasonable law enforcement officer would have understood
[Mays’s] statements as unambiguous requests for counsel.”
Sessoms v. Grounds, 776 F.3d 615, 618 n.3 (9th Cir. 2015)
(en banc). We focus instead on Mays’s subsequent statement:
“My – my step-dad got a lawyer for me. . . . I’m going to –
can – can you call him and have my lawyer come down
here?”

Contrary to the California Court of Appeal’s ruling, there
is nothing ambiguous or equivocal about this statement: it is
plainly a request for a lawyer. A reasonable officer would
have understood that Mays’s father had retained a lawyer, and
Mays wanted the lawyer to be sent to the interrogation to
represent him.

We recently addressed a similar fact pattern in Sessoms v.
Grounds, where the defendant made two statements:
(1) “There wouldn’t be any possible way that I could have
24 MAYS V. CLARK

a—a lawyer present while we do this?”; and (2) “Yeah, that’s
what my dad asked me to ask you guys . . . uh, give me a
lawyer.” Id. at 617–18. We found each to be an
unambiguous request for counsel. See id. at 626–27. Of
particular relevance here, we explained with regard to the first
statement:

Unlike Davis, where the defendant asked,
“[m]aybe I should talk to a lawyer?,” Sessoms
was not asking whether he should speak to a
lawyer. Like the defendant in United States v.
Lee, 413 F.3d 622, 625 (7th Cir. 2005), who
asked, “[c]an I have a lawyer?”—which the
Seventh Circuit recognized as an unequivocal
request for counsel—Sessoms was
deferentially asking whether he could have a
lawyer. . . . There was no ambiguity in the
first request for counsel—Sessoms was
expressing his desire to speak to an attorney
....

Id. at 626. Like Sessoms, Mays asked for a lawyer. Also like
Sessoms, Mays phrased his request deferentially but
unambiguously.

The State argues that even if Mays’s request for an
attorney was unambiguous, the California Court of Appeal
reasonably concluded that his subsequent statement—“I’m
telling you – I’m telling you this is not me”—rendered his
request equivocal. But the California Court of Appeal’s
reliance on this and other postrequest statements to cast doubt
on the clarity of Mays’s previous request for a lawyer was
contrary to, or an unreasonable application of, the Supreme
 MAYS V. CLARK 25

Court’s decision in Smith v. Illinois, 469 U.S. at 92.2 Further,
Mays’s statement reiterating his innocence was in no way
inconsistent with his unambiguous request for a lawyer and
it cannot be interpreted as a suggestion that he had changed
his mind or was undecided about wanting counsel.

Once Mays invoked his right to counsel, Detective Husted
failed to immediately cease the interrogation as he was
required to do under clearly established Supreme Court
precedent.3 See Edwards, 451 U.S. at 484–85. Instead,
Detective Husted immediately provoked Mays by telling him
he had been identified and ultimately employed a mock
polygraph examination. It is not surprising Mays succumbed
to this pressure. See Miranda, 384 U.S. 436, 455 (1966)
(explaining that even without employing “the ‘third degree’”
or other coercive tactics, “the very fact of custodial

2
The Supreme Court in Smith reviewed a state court determination that
Smith’s request was ambiguous, id., but the Supreme Court did not
distinguish between ambiguity and equivocation. See, e.g., id. at 100
(“Our decision is a narrow one. We do not decide the circumstances in
which an accused’s request for counsel may be characterized as
ambiguous or equivocal as a result of events preceding the request or of
nuances inherent in the request itself, nor do we decide the consequences
of such ambiguity or equivocation.”) (emphasis added).
3
Because Detective Husted never ceased questioning Mays, we reject
the State’s alternative argument, under Oregon v. Bradshaw, 462 U.S.
1039 (1983), that Mays “reinitiated” the discussion thereby waiving his
previously-invoked right to counsel. See id. at 1044–46 (plurality opinion)
(explaining suspect’s post-invocation statements may be deemed waiver
of right to counsel only if police ceased questioning and suspect later
initiated further discussion about the investigation). And even were we to
consider Mays’s statement — “I’m telling you – I’m telling you this is not
me” — in context it did not “evince[] a willingness and a desire for a
generalized discussion about the investigation.” Id. at 1045–46.
26 MAYS V. CLARK

interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals”).

We conclude the California Court of Appeal unreasonably
applied Miranda and Davis when it concluded Mays’s
invocation of the right to counsel was ambiguous or
equivocal. We also conclude that the California Court of
Appeal contravened or unreasonably applied Smith when it
used Mays’s post-invocation responses to cast doubt on the
clarity of his request for counsel.

II. The California Court of Appeal’s finding that any
Miranda violation was harmless was not unreasonable
under AEDPA.

Although we conclude Mays’s inculpatory statements to
Detective Husted were obtained in violation of Miranda and
therefore improperly admitted at trial, we grant the writ only
if the error was not harmless. See Arizona v. Fulminante,
499 U.S. 279, 295 (1991); Sessoms, 776 F.3d 615, 629 (9th
Cir. 2015) (en banc).

On direct review, reversal is not required if the
prosecution can show the error “was harmless beyond a
reasonable doubt.” Fulminante, 499 U.S. at 295–96 (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). The
California Court of Appeal applied this standard and
concluded that the admission of Mays’s inculpatory
statements was harmless beyond a reasonable doubt for two
reasons: (1) the statements would have been admissible to
impeach Mays’s trial testimony even if they were obtained in
violation of Miranda; and (2) the other trial evidence was so
strong that Mays would have been convicted even if the
statements had not been admitted.
 MAYS V. CLARK 27

On collateral review, relief is appropriate “if the
prosecution cannot demonstrate harmlessness,” Davis v.
Ayala, 135 S. Ct. 2187, 2197 (2015), but an error is harmless
on collateral review unless it results in “actual prejudice,” id.
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
“Under th[e] [Brecht] test [for actual prejudice], relief is
proper only if the federal court has ‘grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s
verdict.’” Id. at 2197–98 (quoting O’Neal v. McAninch,
513 U.S. 432, 436 (1995)). Because it is more stringent, the
Brecht test “subsumes” the AEDPA/Chapman standard for
review of a state court determination of the harmlessness of
a constitutional violation. Fry v. Pliler, 551 U.S. 112, 120
(2007). A federal habeas court therefore need not formally
apply both the Brecht test and the AEDPA standard; it is
sufficient to apply Brecht alone. Id. A determination that the
error resulted in “actual prejudice,” Brecht, 507 U.S. at 637,
necessarily means that the state court’s harmlessness
determination was not merely incorrect, but objectively
unreasonable, Davis, 135 S. Ct. at 2198–99. A separate
AEDPA/Chapman determination is not required.

Mays argues that his trial testimony, and his inculpatory
statements that could have been used to impeach his trial
testimony, should not be part of the harmlessness calculus
because he might not have testified had he not been obligated
to explain his improperly-admitted statements. In Harrison
v. United States, the Supreme Court held that when a
defendant’s out-of-court confession is improperly admitted
into evidence at his trial, the defendant’s trial testimony may
not be used to support defendant’s conviction unless the
prosecution can show the confession did not induce the
testimony. 392 U.S. 219, 220–26 (1968); see also Lujan v.
28 MAYS V. CLARK

Garcia, 734 F.3d 917, 930 (9th Cir. 2013) (“Under the
Harrison exclusionary rule, when a criminal defendant’s trial
testimony is induced by the erroneous admission of his
out-of-court confession into evidence as part of the
government’s case-in-chief, that trial testimony cannot be
introduced in a subsequent prosecution, nor can it be used to
support the initial conviction on harmless error review,
because to do so would perpetuate the underlying
constitutional error.”). The California Court of Appeal
concluded Mays “would have testified even had his
interrogation statements not been admitted in evidence,
because he had to deny the strong independent evidence
linking him and his gray sweatshirt to the crime.” But it is
unclear whether the court placed the burden on the
government, as it was required to do under Harrison.

We need not resolve this question, however, because the
state court’s alternative holding that the jury would have
convicted Mays even without his inculpatory admissions was
not unreasonable within the meaning of AEDPA. We
acknowledge that although Mays’s statements were not a full
confession, they were very inculpatory: Mays admitted to
being the person in the gray sweatshirt at the scene of the
crime, a fact key to the prosecution’s case, because the
eyewitnesses identified the person in gray as the shooter.

But as the California Court of Appeal pointed out, there
was another piece of critical evidence identifying Mays as the
person in gray at the crime scene: Detective Husted’s
testimony concerning Tamara Schallenberg’s audiotaped
statements to him. As explained, Detective Husted testified
that when he showed the AM/PM photo to Schallenberg—a
neighbor who considered Mays like a son—Schallenberg
identified Mays as the person in the gray sweatshirt “without
 MAYS V. CLARK 29

hesitation.” Mays, 95 Cal. Rptr. 3d at 225. When asked how
she knew, “she said she knew because she knows him.” Id.
Although Schallenberg mistakenly believed the gray
sweatshirt depicted in the photo to be Mays’s “South Pole”
sweatshirt, her statements make clear she based her
identification not on the sweatshirt but on her personal
familiarity with Mays — a familiarity other witnesses lacked.
We agree with the California Court of Appeal that, although
Schallenberg in her conditional examination “tried to recant
the identification when she realized its effect on [Mays], . . .
[this] does not diminish the impact of her original statement.”
Additionally, in both her original statement and in her
conditional examination, Schallenberg said Mays told her he
was present at the crime scene.

In light of Schallenberg’s statements, the California Court
of Appeal’s harmlessness determination was not objectively
unreasonable. We hold, therefore, that under the deferential
AEDPA standard of review applicable to this case, Mays is
not entitled to relief on his habeas petition.4

4
We decline to expand the certificate of appealability to encompass the
uncertified issue raised in Mays’s opening brief: whether Mays’s
inculpatory statements to Detective Husted were involuntary because his
will was overborne. Like his Miranda claims, this claim is subject to
harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 295
(1991). Although reasonable jurists could disagree with the district
court’s conclusion that the inculpatory statements were not coerced, see
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), even if we were to
expand the certificate of appealability and decide this question in Mays’s
favor, we would conclude he is not entitled to relief because the
statements did not result in actual prejudice.
30 MAYS V. CLARK

CONCLUSION

The facts of this case are troubling. A 17-year-old with
minimal education invoked his right to counsel while being
questioned in connection with a murder. Instead of honoring
Mays’s request as required under Miranda and its progeny,
the police detective continued his questioning unabated,
administered a fake polygraph examination, and presented
Mays with fabricated results. Mays went on to make highly
incriminating statements that were used against him at trial.
But because the state court’s harmlessness determination was
not objectively unreasonable, we affirm the district court
order denying Mays’s habeas petition.

AFFIRMED.