Tio Sessoms v. D Runnel

Filing

FILED OPINION (ALEX KOZINSKI, MARY M. SCHROEDER, BETTY BINNS FLETCHER, BARRY G. SILVERMAN, KIM MCLANE WARDLAW, RAYMOND C. FISHER, RICHARD A. PAEZ, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., SANDRA S. IKUTA and MARY H. MURGUIA) REVERSED AND REMANDED. Opinion by Judge B. Fletcher; Concurrence by Judge Fisher; Dissent by Judge Murguia. FILED AND ENTERED JUDGMENT. [8288858]--[COURT UPDATE: Attached post judgment form. Resent NDA. 08/16/2012 by RY]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIO DINERO SESSOMS,
Petitioner-Appellant,
v.
D. L. RUNNELS,
Respondent-Appellee.





No. 08-17790
D.C. No.
2:05-cv-01221JAM-GGH
OPINION

Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
March 20, 2012—San Francisco, California
Filed August 16, 2012
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Betty B. Fletcher, Barry G. Silverman,
Kim McLane Wardlaw, Raymond C. Fisher,
Richard A. Paez, Consuelo M. Callahan, Milan D. Smith, Jr.,
Sandra S. Ikuta, and Mary H. Murguia, Circuit Judges.
Opinion by Judge B. Fletcher;
Concurrence by Judge Fisher;
Dissent by Judge Murguia

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SESSOMS v. RUNNELS

COUNSEL
Eric Weaver (argued), Albany, California, for petitionerappellant Tio Dinero Sessoms.
Edmund G. Brown, Attorney General of California, Michael
P. Farrell, Senior Assistant Attorney General, Charles A.
French, Supervising Deputy Attorney General, Jeffrey D.
Firestone (argued), Deputy Attorney General, Sacramento,
California, for respondent-appellee D. L. Runnels.
Peter C. Pfaffenroth, (argued), HL Rogers, Brian A. Fox, Sidley Austin LLP, Washington, D.C.; Mark E. Haddad, Douglas
A. Axel, Sidley Austin LLP, Los Angeles, California; David
M. Porter, Sacramento, California, for amicus National Association of Criminal Defense Lawyers.

OPINION
B. FLETCHER, Circuit Judge, with whom SCHROEDER,
WARDLAW, FISHER, PAEZ, and M. SMITH, Circuit
Judges, join in full:
Tio Sessoms, a nineteen-year-old black man, sat alone in an
eight-by-ten foot interrogation room. Five days earlier, on the

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advice of his father, Sessoms had turned himself in to the
local police. Before doing so, Sessoms’s father told his son:
you must ask for a lawyer before talking to the police.
Sessoms followed his father’s advice. When the two police
officers entered the interrogation room, Sessoms sat slouched
in his chair. He looked up and they exchanged brief pleasantries. Forty seconds after the officers entered the room and
before they read Sessoms his rights under Miranda v. Arizona, 384 U.S. 436 (1966), the following exchange occurred:
Sessoms:

There wouldn’t be any possible
way that I could have a — a lawyer present while we do this?

[Detective]:

Well, uh, what I’ll do is, um —

Sessoms:

Yeah, that’s what my dad asked
me to ask you guys . . . uh, give
me a lawyer.1

Instead of immediately ceasing the interrogation, the officers persevered and convinced Sessoms that the only way to
tell his side of the story was to speak to them without an attorney. Eventually, Sessoms agreed to talk and made incriminating statements.
We hold that the California Court of Appeal unreasonably
applied clearly established Supreme Court precedent when it
concluded that Sessoms was required under Davis v. United
States, 512 U.S. 452, 459 (1994), to unambiguously invoke
his right to counsel. We reverse the district court’s judgment
and remand with directions to grant a conditional writ of
habeas corpus.
1

The transcript of the colloquy says “Give me a lawyer,” but Detective
Woods, after comparing the transcript to the videotape, testified that Sessoms said “Get me a lawyer.” We find this distinction irrelevant to our
analysis.

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I.

Facts and Procedural History

On October 20, 1999, Sessoms and two others burglarized
Edward Sheriff’s home. During the burglary, one of Sessoms’s accomplices choked and repeatedly stabbed Sheriff.
Sessoms then fled from California to Oklahoma. There, at
his father’s urging, Sessoms surrendered to Oklahoma police
on November 15, 1999. His father advised him to ask for a
lawyer before talking to the police. Sessoms was in custody
for four days before being interrogated. On November 19 or
20, two police officers, Detectives Woods and Keller, flew
from California to Oklahoma to question Sessoms at the
county jail where he was being held.
The entire interrogation was videotaped. The video shows
Sessoms sitting alone, talking to himself and quietly saying,
“I’m not a criminal, but I got [inaudible]. They didn’t tell me
if I have a lawyer. I know I want to talk to a lawyer.”2 When
the detectives entered the room, the following exchange took
place:
Det. Woods:
Sessoms:

How you doing, all right. You
already know me.

Det. Woods:

You say . . .

Det. Keller:

Tio, Pat Keller.

Det. Woods:

You say Tio or Theo?

Sessoms:
2

. . . Tio, I’m Dick.

It — my name is pronounced Tio
because it’s Spanish.

Sessoms’s statements to himself were made prior to the detectives
entering the room and there is no evidence that any law enforcement officers heard these statements.

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Det. Woods:

Why don’t we swap corners here
for a minute, you guys? Go ahead
and sit here.

Sessoms:

So glad you fellows had a safe
flight.

Det. Woods:

Huh?

Sessoms:

I’m glad you fellows had a safe
flight out here.

Det. Keller:

So are we. Huh.

Det. Woods:

Well, we want a safe one back
too.

Sessoms:

Oh, you know [inaudible].

Det. Woods:

Yeah. Uh, we both, uh — both
from, uh, Sacramento PD and, uh
—

Sessoms:

There wouldn’t be any possible
way that I could have a — a lawyer present while we do this?

Det. Woods:

Well, uh, what I’ll do is, um —

Sessoms:

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Tio. Okay.

Det. Keller:

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Yeah, that’s what my dad asked
me to ask you guys . . . uh, give
me a lawyer.

Woods proceeded as though Sessoms said nothing. Instead
of ending the interrogation, Woods persuaded Sessoms that
having a lawyer was a bad idea. Sessoms explained that he

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was concerned that some police officers “end up switching
your words afterwards,” to which Woods responded that he
had no intention of playing any “switch games” and would
even tape record the conversation to allay Sessoms’s fears.
Woods then explained the situation: Sessoms and his two
accomplices were all being “charged with the same thing.”
Woods said he already knew “what happened” because Sessoms’s accomplices had waived their rights “and laid it out
from A to Z.” Woods reassured Sessoms that he believed that
Sessoms “did not participate in the stabbing,” but warned that
if Sessoms didn’t make a statement right then and there,
Woods wasn’t going to be able to “get his version of it”
because “most all attorneys — in fact, all attorneys — will
sometimes or usually advise you not to make a statement.” He
then said he didn’t really “need [Sessoms’s] statement to
make [the] case” anyway because he “already [had] two and
a half other complete statements,” reiterating that he already
“[knew] what happened.”
Only then—after telling Sessoms that having a lawyer
would only hurt him, and that invoking his right to counsel
would be futile because the police already knew what
happened—did the police even read Sessoms his rights under
Miranda. Sessoms eventually said “Let’s talk,” and proceeded
to implicate himself in the crime.
Prior to trial, Sessoms moved to suppress the incriminating
statements, arguing that he had clearly invoked his right to
counsel. The trial court denied the motion. Sessoms went to
trial and was convicted of murder, robbery, and burglary, with
the special circumstance that he was engaged in the commission or attempted commission of the crimes of robbery and
burglary when the murder occurred. He was sentenced to life
in prison without the possibility of parole.
Sessoms appealed to the California Court of Appeal. That
court analyzed Sessoms’s statements under the rule of Davis:
a request for counsel must be unequivocal or unambiguous.

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The state court then determined that Sessoms’s statements did
not satisfy Davis’s requirement. It found that “although [Sessoms] twice explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for
counsel.” People v. Sessoms, No. C041139, 2004 WL 49720,
at *3 (Cal. Ct. App. Jan. 12, 2004). According to the state
court, Sessoms’s first statement was “legally indistinguishable” from the statements made in Davis, 512 U.S. at 455
(“Maybe I should talk to a lawyer”) and People v. Crittenden,
9 Cal. 4th 83, 123-24 (“Did you say I could have a lawyer?”),
which were not unequivocal requests for an attorney. Sessoms, 2004 WL 49720, at *3. Sessoms’s second statement,
the state court continued, was also not an unequivocal request
for an attorney, but rather “[a]t best . . . a statement of his
father’s advice to him.” Id. Ultimately, the California Court
of Appeal concluded that Sessoms’s statements were equivocal and not “ ‘sufficiently clear[ ] that a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney.’ ” Id. (citing Davis, 512 U.S.
at 459).
Sessoms then filed a federal habeas petition. The district
court denied the petition but granted a certificate of appealability on his Miranda claim and his ineffective assistance of
counsel claim. A divided three-judge panel upheld the district
court’s denial of Sessoms’s habeas petition. The panel majority recognized that “[b]ecause Sessoms’s statements were
made prior to his Miranda waiver, Davis cannot apply as
‘clearly established Federal law’ in this case.” Sessoms v.
Runnels, 650 F.3d 1276, 1283 (9th Cir. 2011). But the panel
majority held that it was not unreasonable for the state court
to require an unambiguous request for counsel and concluded
that Sessoms’s request was ambiguous. Id. We granted
rehearing en banc. We now conclude that the state court’s
decision was an unreasonable application of clearly estab-

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lished federal law. We therefore reverse the district court’s
denial of habeas relief.3
II.

Standard of Review

We review de novo the district court’s denial of a petition
for a writ of habeas corpus brought under 28 U.S.C. § 2254.
Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010).
Because Sessoms’s habeas petition was filed after April 24,
1996, we apply AEDPA. Under AEDPA, Sessoms is entitled
to federal habeas relief if he can show that the state court’s
adjudication of the merits of his claim was “contrary to” thenestablished Supreme Court precedent; was “an unreasonable
application of” such law; or “was based on an unreasonable
determination of the facts” in light of the state court record.
28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770,
785 (2011).
A state court decision is “contrary to” clearly established
Supreme Court precedent if it (1) “applies a rule that contradicts the governing law set forth in [the Supreme Court’s]
cases”; or (2) reaches a different result on a “materially indistinguishable” set of facts. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A state-court decision involves an “unreasonable application” of clearly established federal law if the state
court (1) “identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the
facts of the . . . case”; or (2) “unreasonably extends a legal
principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Id. at
407.
This case illustrates the difficulty in defining the precise
contours of the “contrary to” and “unreasonable application”
3

Because we conclude that Sessoms is entitled to relief on his Miranda
claim, we need not address his ineffective assistance of counsel claim.

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prongs of § 2254(d)(1). Indeed, Williams itself recognized
that in many cases it will be “difficult to distinguish a decision involving an unreasonable extension of a legal principle,” warranting relief under the “unreasonable application”
clause “from a decision that arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law,”
warranting relief under the “contrary to” clause. Id. at 408
(internal quotation marks omitted). Deciding whether this
case falls into the unreasonable extension of legal principle or
incorrect choice of law category involves, as the Supreme
Court in Williams described, some “problems of precision.”
Id. Regardless, “it is clear that both [standards] are met when
the state court has failed to follow the law as set forth by the
Supreme Court.” Wade v. Terhune, 202 F.3d 1190, 1195 (9th
Cir. 2000). The state court decision is both contrary to and
involves an unreasonable application of Supreme Court precedent because it unreasonably extended the principle from
Davis to a new context where it should not apply and because
it analyzed Sessoms’s case using the incorrect legal framework.
III.

Discussion

We begin by identifying the Supreme Court’s applicable
legal principles. The landmark case of Miranda v. Arizona
established certain safeguards that must be afforded to a suspect in custody, including the right to have counsel present
during a custodial interrogation. 384 U.S. 436 (1966). The
Supreme Court has refined its analysis of the Miranda right
to counsel in a series of cases including, as relevant here,
Edwards v. Arizona, 451 U.S. 477 (1981), and United States
v. Davis, 512 U.S. 452 (1994).
A.
In Miranda, the Supreme Court established rules the police
must follow to ensure certain “basic” and “precious” rights
“enshrined in our Constitution.” 384 U.S. at 442. These rights

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include the Fifth Amendment’s guarantee that “No person . . .
shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. One of the Miranda
Court’s primary concerns was the temptation for law enforcement, operating with little or no supervision of their investigative actions, to overbear a defendant in an isolated
interrogation setting. 384 U.S. at 461. The Fifth Amendment
privilege, explained the Court, “protect[s] persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate
themselves.” Id. at 467.
Miranda recognized that overzealous police practices during a custodial interrogation create the potential for compulsion in violation of the Fifth Amendment. Id. at 455-58.
Indeed, some of the tactics of which Miranda warns were
employed by the interrogators in this case. After Sessoms
asked for an attorney, Woods persisted in his questioning. He
told Sessoms he already knew what happened, and that Sessoms’s accomplices had already confessed and laid it out
from A to Z, thereby “display[ing] an air of confidence in
[Sessoms’s] guilt” and appearing only to be “interest[ed] in
confirming certain details.” Id. at 450. Woods offered Sessoms a “legal excuse[ ]” and assured him that he knew Sessoms did not participate in the stabbing. See id. at 451-52. But
then Woods immediately reversed course, telling Sessoms
that he didn’t really need his statement to make the case anyway, because Sessoms’s accomplices had already talked,
thereby placing Sessoms “in a psychological state where his
story [was] but an elaboration of what the police purport[ed]
to know already—that he [was] guilty.” Id. at 450. Eventually, the officers, much like Miranda warns, overwhelmed
Sessoms and persuaded him “out of exercising his constitutional rights.” Id. at 455.
[1] In order to assure that the use of such psychological
tactics to exploit a suspect’s vulnerabilities did not run afoul
of the Fifth Amendment, Miranda set forth clear mandates:

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“[p]rior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right
to the presence of an attorney.” Id. at 444. If a suspect “indicates in any manner and at any stage of the process that he
wishes to consult with an attorney,” all questioning must cease.4
Id. at 444-45. These protective devices are necessary to dispel
the inherent compulsion of custodial interrogations and “to
insure that what was proclaimed in the Constitution had not
become but a form of words in the hands of government officials.” Id. at 444 (internal citation and quotation marks omitted).
Fifteen years later, in Edwards v. Arizona, the Supreme
Court reaffirmed the view that the “assertion of the right to
counsel was a significant event and that once exercised by the
accused, ‘the interrogation must cease until an attorney is
present.’ ” Edwards, 451 U.S. at 485 (quoting Miranda, 384
U.S. at 474). In Edwards, the suspect was arrested and taken
to the police station. Id. at 478. He requested counsel, at
which point all questioning ceased. Id. at 479. The next day,
the police visited Edwards in jail, but he told the jail guard
that he did not want to talk to anyone. Id. The guard told
Edwards that “he had to” talk to the police, and Edwards
eventually confessed. Id. The Supreme Court held that
Edwards’s Fifth Amendment rights were violated and “reconfirm[ed]” that a suspect, “having expressed his desire to deal
with the police only through counsel,”5 must not be “subject
4

The dissent cites this same passage, but then curiously, states that
Miranda says nothing about what the police must do when a suspect’s
invocation is ambiguous. But Miranda explicitly addresses this issue—a
suspect can request an attorney “in any manner.” 384 U.S. at 444-45
(emphasis added).
5
The dissent correctly states that under AEDPA, the holdings and not
the dicta constitutes clearly established federal law. Dissent at 9324. But
then the dissent goes on to rely on dicta from Edwards to support its conclusion that even Edwards requires a suspect to “clearly” assert his rights

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to further interrogation by the authorities until counsel has
been made available to him.” Id. at 484-85. The purpose of
the Edwards rule is “to prevent police from badgering a
defendant into waiving his previously asserted Miranda
rights,” Michigan v. Harvey, 494 U.S. 344, 350 (1990), and
to ensure that police “will not take advantage of the mounting
coercive pressures of prolonged police custody,” Maryland v.
Shatzer, 130 S. Ct. 1213, 1220 (2010) (internal citations and
quotation marks omitted).
The Supreme Court revisited the scope of Miranda and
Edwards in Davis v. United States. There, the Court confronted a scenario where Davis had executed a written waiver
of his rights and expressly agreed to speak to the police. 512
U.S. at 454-55. Only after being questioned for ninety minutes did Davis utter the words “[m]aybe I should talk to a lawyer.” Id. at 455. In deciding the case, the Supreme Court again
reaffirmed the fundamental principle that “if a suspect
requests counsel at any time during [a custodial] interview, he
is not [to be] subject to further questioning until a lawyer has
been made available or the suspect himself reinitiates conversation.” Id. at 458 (citing Edwards, 451 U.S. at 484-85).
[2] The Court went on to clarify, however, 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, our precedents do not require
to counsel. Dissent at 9327. Just as with the holding in Davis, see infra n.
5 and accompanying text, what is the holding in Edwards is unmistakable:
“We further hold that an accused, such as Edwards, 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.” 451 U.S. at 484. The
Edwards’s Court reference to the requirement that a suspect’s invocation
be “clear” is dicta and cannot be relied upon.

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the cessation of questioning.” Id. at 459. “Rather, the suspect
must unambiguously request counsel.” Id.6
The Court explained the reasoning behind this requirement
as follows:
A suspect who knowingly and voluntarily waives his
right to counsel after having that right explained to
him has indicated his willingness to deal with the
police unassisted. Although Edwards provides an
additional protection—if a suspect subsequently
requests an attorney, questioning must cease—it is
one that must be affirmatively invoked by the suspect.
Id. at 460-61. The Court ultimately concluded that the statement “[m]aybe I should talk to a lawyer” was not an unambiguous or unequivocal request for counsel. Id. at 462.
[3] But Davis clearly limits its holding to statements made
after a suspect has waived his Miranda rights: “We therefore
hold that, after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”7 Id. at 461 (emphasis added); see also United States v.
Rodriguez, 518 F.3d 1072, 1079 (9th Cir. 2008) (“Davis
addressed what the suspect must do to restore his Miranda
rights after having already knowingly and voluntarily waived
6

The dissent accuses us of misinterpreting Davis by “selectively lift[ing]” language to support the majority’s view. In light of the facts of the
case (after being Mirandized and talking to the police for more than an
hour, Davis made an unambiguous invocation) and Davis’s crystal clear
holding (requiring an unambiguous invocation “after a knowing and voluntary waiver of the Miranda rights,”), the only logical interpretation of
the passage quoted by the dissent is that an unambiguous statement is
required after waiver.
7
We rely on the Supreme Court’s holdings and we cannot imagine a
more clear holding than the one made here.

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them.”); 2 Wayne R. LaFave, et al., Criminal Procedure
§ 6.9(g), n. 185 (3d ed. 2007 & Supp. 2012) (“Davis is . . .
limited [to the post-waiver context].” (internal citations omitted)). When there has not been a knowing and voluntary
waiver, “[i]nvocation of the Miranda right to counsel
‘requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance
of an attorney,’ ” Davis, 512 U.S. at 459 (quoting McNeil v.
Wisconsin, 501 U.S. 171, 178 (1991)), but the assertion need
not be “unambiguous or unequivocal,” id. at 462. Thus, where
the suspect has not waived his rights, Davis’s rule is inapplicable. We therefore agree with Sessoms that the California
Court of Appeal unreasonably extended Davis to requests for
counsel that, like his, were made before a valid waiver of
Miranda rights. See Williams, 529 U.S. at 407.
The state argues, however, that the Supreme Court’s recent
decision in Berghuis v. Thompkins suggests that Davis applies
to all requests for counsel, whether pre- or post-waiver. 130
S. Ct. 2250 (2010). After being informed of his Miranda
rights, the suspect in Berghuis refused to sign a waiver form
and simply remained silent through almost three hours of
interrogation before making an incriminating statement. See
id. at 2255-27. The Supreme Court concluded that the suspect
never invoked his right to silence. Id. at 2260. Relying on
Davis, the Court held that an invocation of the right to remain
silent, like the right to counsel, must be unambiguous. Id. In
reaching that decision, the Court provided this description of
its holding in Davis:
In the context of invoking the Miranda right to counsel, the Court in Davis v. United States held that a
suspect must do so “unambiguously.” If an accused
makes a statement concerning the right to counsel
“that is ambiguous or equivocal” or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the
accused wants to invoke his or her Miranda rights.

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Id. at 2259-60 (internal citations omitted). As the state points
out, this description of Davis draws no distinction between
ambiguous statements made before or after Miranda rights
were waived.
Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both
Davis and Berghuis remains: Sessoms made his statements
before he was informed of his rights under Miranda. The
Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and
effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when
“the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the
choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of
his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S.
478 (1964)).
Both Davis and Berghuis recognize that the suspect must
be given Miranda warnings before any interrogation. In Berghuis, the Court wrote that it need not “add marginally” to
Miranda’s prophylactic protections by “[t]reating an ambiguous . . . statement as an invocation of Miranda rights,”
because “full comprehension of the rights to remain silent and
request an attorney are sufficient to dispel whatever coercion
is inherent in the interrogation process.” 130 S. Ct. at 2260.
Similarly, in Davis, the court emphasized that the “primary
protection afforded suspects subject to custodial interrogation
is the Miranda warnings themselves” and that, “after having
[those] right[s] explained to him,” a suspect must invoke his
rights “affirmatively.” 512 U.S. at 460-61 (emphasis added).
[4] In light of these instructions from the Supreme Court,
it is clear that Berghuis does not alter Davis’s requirement
that an unambiguous invocation can apply only after a suspect

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has been informed of his Miranda rights. Not only are the
Supreme Court cases on this point pellucid, their rationale
makes eminent sense. A person not aware of his rights cannot
be expected to clearly invoke them. Once, however, a suspect
has been read his Miranda rights, it is reasonable to ascribe
to him knowledge of those rights. If at some later point during
the custodial interrogation he decides that he wants an attorney, he should be held to a higher standard of clarity to
invoke that right. That is precisely what Davis concluded.
Thus, if a suspect invokes his rights before the Miranda warnings are given, the invocation must be analyzed under the rule
of Miranda and Edwards, not that of Davis. We therefore
conclude that the California Court of Appeal unreasonably
extended Davis’s clear invocation rule to a situation where it
does not apply. Sessoms requested an attorney before receiving a clear and complete statement of his rights and, therefore,
knowledge of his rights cannot be ascribed to him. In this circumstance, the clear invocation rule simply should not have
been applied.
[5] Because the California Court of Appeal unreasonably
applied clearly established Supreme Court precedent,
AEDPA’s restrictions do not apply. Panetti v. Quarterman,
551 U.S. 930 (2007) (stating that when “the requirement set
forth in § 2254(d)(1) is satisfied[, a] federal court must then
resolve the [constitutional] claim without the deference
AEDPA otherwise requires”); Frantz v. Hazey, 533 F.3d 724,
736-37 (9th Cir. 2008) (en banc) (“where the analysis on federal habeas . . . results in the conclusion that § 2254(d)(1) is
satisfied, then federal habeas courts must review the substantive constitutionality of the state custody de novo”). Therefore, using the correct legal framework we consider de novo
whether Sessoms invoked his right to counsel. Under
Miranda and Edwards, Sessoms could “indicate[ ] in any
manner and at any stage of the process that he wishe[d] to
consult with an attorney,” Miranda, 384 U.S. at 444-45, so
long as he “expressed his desire to deal with the police only
through counsel,” Edwards, 451 U.S. at 484; see also McNeil,

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501 U.S. at 178 (“It requires, at a minimum, some statement
that can reasonably be construed to be an expression of a
desire for the assistance of an attorney in dealing with custodial interrogation by the police.”). Sessoms’s statements easily meet this standard.
B.
Police officers spend their days interacting with ordinary
people in our cities and neighborhoods and are surely well
acquainted with how ordinary people speak. Recognizing this,
the Supreme Court has directed that a defendant’s words
should be “understood as ordinary people would understand
them.” Connecticut v. Barrett, 479 U.S. 523, 529 (1987).
[6] Here, any reasonable police officer (as indeed did these
officers) would understand that Sessoms expressed his desire
to have a lawyer present at his interrogation. Forty seconds
into the conversation, before any meaningful exchange took
place, Sessoms requested counsel twice in rapid succession.
First, Sessoms said “There wouldn’t be any possible way that
I could have a — a lawyer present while we do this?”
Although it was couched in a polite and diffident manner, the
meaning of Sessoms’s request was clear: he wanted a lawyer
then and there.
If there were any doubt (which there should not have been),
Sessoms immediately made a second statement: “Yeah, that’s
what my dad asked me to ask you guys . . . uh, give me a lawyer.” Simply put, the words “give me a lawyer” mean just
that: “give me a lawyer.”
Each of Sessoms’s statements, taken on its own, clearly
expresses his desire for an attorney. But when the two statements are taken together, that conclusion is indisputable.8
8

Both the state court and the dissent analyze Sessoms’s statements in
isolation but do not consider the meaning of the two statements together.

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Of course, the best test of how a reasonable police officer
would understand Sessoms’s request is how the actual police
officer in this case responded. That reaction is telling. Detective Woods’s response to Sessoms’s statements—informing
Sessoms that a lawyer would only prevent him from giving
his side of the story and that, in any event, invocation was
futile because the police already knew what happened—
shows that he knew Sessoms was requesting a lawyer, and he
wanted to do his best to talk Sessoms out of it. This desire is
understandable. Detective Woods had flown halfway across
the country to speak to Sessoms about a murder case, and it
was surely frustrating when Sessoms requested a lawyer only
forty seconds into the interrogation. But the “rigid prophylactic rule of Edwards” requires the police to cease questioning
immediately when a suspect requests counsel and forbids any
attempt to badger a suspect into waiving his previously
asserted rights. Davis, 512 U.S. at 458 (internal quotation
marks omitted); Harvey, 494 U.S. at 350.
The California Court of Appeal’s decision could only be
defended by “disregard[ing] . . . the ordinary meaning” of
Sessoms’s statements. Barrett, 479 U.S. at 530. This is forbidden by clearly established federal law. All that is required is
some expression of a desire for the assistance of an attorney
and Sessoms made his wishes sufficiently clear.
IV.

CONCLUSION

Davis’s requirement that a request for counsel be unambiguous does not apply to this case. The state court acted unreasonably by requiring Sessoms to unequivocally or
unambiguously invoke his right to counsel. Under Miranda
and Edwards, Sessoms invoked his right to counsel. Law
enforcement—those responsible for enforcing the rule of law
—may not disregard the constitutional safeguards imposed by
Miranda, which ensure the protection of the Fifth Amendment’s right against self-incrimination.

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[7] Upon hearing Sessoms’s request for an attorney, Detectives Woods and Keller were required to immediately terminate all questioning. See Miranda, 384 U.S. at 444-45. They
failed to do so. Therefore, Sessoms’s incriminating statements
were obtained in violation of Miranda and their admission at
Sessoms’s trial violated his clearly established rights under
the Fifth and Fourteenth Amendments. See Edwards, 451 U.S.
at 486-87.
[8] We reverse the district court’s denial of habeas relief
and remand with instructions to grant a conditional writ of
habeas corpus with directions that the state retry Sessoms
within a reasonable period, or release him.
REVERSED and REMANDED.

FISHER, Circuit Judge, with whom B. FLETCHER,
WARDLAW, and PAEZ, Circuit Judges, join, concurring:
I fully concur in the majority opinion. I also conclude, contrary to the dissent, that even if it were reasonable to apply the
more stringent standard of Davis v. United States, 512 U.S.
452 (1994), the California Court of Appeal unreasonably
applied that standard. For the reasons stated in the majority
opinion, the only reasonable conclusion was that Sessoms’
statements, taken together, unambiguously conveyed his
desire to have counsel present.

MURGUIA, Circuit Judge, with whom KOZINSKI, Chief
Judge, and SILVERMAN, CALLAHAN, and IKUTA, Circuit
Judges, join, dissenting:
I respectfully dissent. The majority invalidates a conviction
on the ground that the state court reached a decision that was

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contrary to and an unreasonable application of clearly established federal law. According to the majority, the California
Court of Appeal unreasonably applied Davis v. United States,
512 U.S. 452, 459 (1994), to the pre-waiver context. But the
majority eschews the high level of deference we owe a state
court under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254. A federal habeas court may
not grant relief unless no reasonable jurist could agree with
the state court’s determination. See Harrington v. Richter, 131
S. Ct. 770, 786 (2011). On the record before us, a reasonable
jurist could conclude not only that the Davis standard applies
to pre-Miranda statements, but also that Sessoms’s request
was ambiguous and equivocal. I would, therefore, affirm the
district court’s judgment denying relief.
I
Before the police read him his Miranda rights, Sessoms
said, “There wouldn’t be any possible way that I could have
a — a lawyer present while we do this? . . . Yeah, that’s what
my dad told me to ask you guys . . . uh, give me a lawyer.”
The majority holds the state court reached a decision that was
contrary to and an unreasonable application of clearly established federal law in concluding that if Sessoms wanted the
officers to stop the interrogation, he had to make a clear
request for counsel as required by Davis. Under AEDPA, Sessoms is only entitled to relief if the state court unreasonably
applied “clearly established federal law.” 28 U.S.C.
§ 2254(d)(1). “Clearly established Federal law” refers to the
holdings, not the dicta, of the Supreme Court as of the time
of the relevant state court’s decision. Lockyer v. Andrade, 538
U.S. 63, 71 (2003). The Supreme Court has never held that an
ambiguous request for counsel was enough to stop an interrogation. When the Supreme Court has had occasion to consider
the issue, it has either expressly declined to reach it, Smith v.
Illinois, 469 U.S. 91 (1984), or held that only an unambiguous
invocation requires police to terminate the interrogation.

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Davis, 512 U.S. at 460-61; Berghuis v. Thompkins, 130 S. Ct.
2250, 2260 (2010).
In Smith, the Supreme Court did not address the consequences of an ambiguous inquiry about counsel, because the
invocation in that case was clear. 469 U.S. at 99-100 (“We do
not decide the circumstances in which an accused’s request
for counsel may be characterized as ambiguous or equivocal
. . . .”). The Court found it unnecessary to resolve the conflict
in the lower courts on this point. Thus, Smith confirmed that
the consequences of an ambiguous request for counsel was an
unsettled question in Miranda’s wake, and that there was no
established law on point.
When the Supreme Court did reach the question in Davis,
it held that “if a suspect makes a reference to an attorney that
is ambiguous or equivocal . . . our precedents do not require
the cessation of questioning. Rather, the suspect must unambiguously request counsel.” 512 U.S. at 459 (emphasis
added). In expounding this rule, the Court in Davis reasoned
that “when the officers conducting the questioning reasonably
do not know whether the suspect wants a lawyer, a rule
requiring the immediate cessation of questioning ‘would
transform the Miranda safeguards into wholly irrational
obstacles to legitimate police investigative activity.’ ” Id. at
460 (quoting Michigan v. Mosley, 423 U.S. 96, 102 (1975)).
In applying this reasoning to the facts of the case, the Davis
court held that “after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at 461. While the Court noted that this rule
(requiring a suspect to clearly request an attorney) applied to
situations where the suspect had waived Miranda rights, the
Court did not specifically address whether or not the rule’s
applicability was confined to that period. Thus, it was not
contrary to established law or unreasonable for the California
Court of Appeal to apply the Davis rule to Sessoms’s case.

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In fact, the Supreme Court has recently confirmed that
Davis’s reasoning applies equally in the pre-waiver context.
Berghuis, 130 S. Ct. at 2260; see also United States v. Plugh,
648 F.3d 118, 124-25 (2d. Cir. 2011) (applying Davis to the
pre-waiver context in light of Berghuis); United States v. Doe,
170 F.3d 1162, 1166 (9th Cir. 1999) (applying Davis where
defendant asked about an attorney “before being read his
Miranda rights, before being interrogated and even before
biographical questioning”). The Berghuis Court, without qualification, held: “If an accused makes a statement concerning
the right to counsel ‘that is ambiguous or equivocal’ or makes
no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to
invoke his or her Miranda rights.” 130 S. Ct. at 2259-60
(quoting Davis, 512 U.S. at 461-62). The Court reiterated the
practical considerations underlying the rule:
There is good reason to require an accused who
wants to invoke his or her [Miranda rights] to do so
unambiguously. A requirement of an unambiguous
invocation of Miranda rights results in an objective
inquiry that avoid[s] difficulties of proof and . . .
provide[s] guidance to officers on how to proceed in
the face of ambiguity. If an ambiguous act, omission,
or statement could require police to end the interrogation, police would be required to make difficult
decisions about an accused’s unclear intent and face
the consequence of suppression if they guess wrong.
Suppression of a voluntary confession in these circumstances would place a significant burden on
society’s interest in prosecuting criminal activity.
Id. at 2260 (citations and internal quotation marks omitted).
Although Berghuis had not been decided at the time the state
court ruled on Sessoms’s claims, the holding confirms that it
was not unreasonable for the California Court of Appeal to
apply Davis in this case.

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The majority relies upon excerpted sentences from
Miranda-related precedent to suggest there is a Supreme
Court rule that says: Any statement by a suspect that could be
interpreted as a request for a lawyer is an invocation of the
right to counsel. The majority then suggests that the rulings
in Davis and Berghuis carved out narrow exceptions to this
“rule.” But the Supreme Court has never held that an ambiguous statement or question regarding counsel is enough to stop
an interrogation. While Miranda established that a suspect
could stop the questioning by “indicat[ing] in any manner and
at any stage of the process that he wishes to consult with an
attorney before speaking,” Miranda v. Arizona, 384 U.S. 436,
444-45 (1966), the decision did not address what the police
were supposed to do when the suspect’s “indication” was
ambiguous.
Similarly, Edwards v. Arizona, which held that a suspect
cannot be subjected to further questioning once he has “expressed his desire to deal with the police only through counsel,” says nothing about what constitutes a sufficient
expression of that desire. 451 U.S. 477, 484 (1981). Rather,
Edwards said that authorities may not continue to interrogate
a suspect who “has clearly asserted his right to counsel.” Id.
at 485 (emphasis added). This language suggests that an
unambiguous statement is required. See Davis, 512 U.S. at
460 (citing to this portion of Edwards to support point that
assertion must be clear and unambiguous). Edwards, of
course, does not provide much guidance on the issue of
ambiguity, because the suspect in that case plainly stated, “I
want an attorney before making a deal.” Id. at 479.
When the Supreme Court in McNeil v. Wisconsin said that
an invocation of the right to counsel “requires, at a minimum,
some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police,” 501 U.S. 171,
178 (1991), it was explaining why requesting legal representation for a bail hearing would not preclude a subsequent

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police interrogation. McNeil did not set out the standard for
assessing a suspect’s ambiguous inquiry about counsel at the
start of a custodial interrogation, as the majority implies.
The majority also suggests that its reliance on McNeil is
supported by Davis, stating:
When there has not been a knowing and voluntary
waiver, “[i]nvocation of the Miranda right to counsel
‘requires, at a minimum, some statement that can
reasonably be construed to be an expression of a
desire for the assistance of an attorney,’ ” Davis, 512
U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S.
171, 178 (1991)), but the assertion need not be “unambiguous or unequivocal,” id. at 462.
Maj. Op. at 9318. In addition to misconstruing McNeil, this
passage turns Davis on its head. Nowhere in Davis is there
any statement suggesting that “the assertion need not be
‘unambiguous or unequivocal.’ ” Indeed, this is made clear by
the very next line in Davis:
Invocation of the Miranda right to counsel “requires,
at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the
assistance of an attorney.” McNeil v. Wisconsin, 501
U.S., at 178. But 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, our precedents do
not require the cessation of questioning.
Davis, 512 U.S. at 459 (emphasis added). The problem with
the majority’s analysis becomes even more apparent looking
at the entire sentence from which it selectively lifts “unambiguous or unequivocal”: “If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers

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have no obligation to stop questioning him.” Id. at 461-62.
This sentence in no way supports the majority’s statement that
“the assertion need not be ‘unambiguous or unequivocal.’ ”
The Supreme Court has never held, in Davis or in any case,
that an ambiguous or equivocal statement regarding an attorney is sufficient to invoke a suspect’s right to counsel.
The majority criticizes the state court for applying Davis in
this case because Sessoms had not been read his Miranda
rights before he referenced a lawyer. Cf. United States v. Doe,
170 F.3d at 1166 (holding that “a statement concerning an
attorney made before interrogation begins is far less likely to
be a request for attorney assistance during interrogation than
a similar statement made during custodial interrogation”). The
majority points to the emphasis in Davis and Berghuis on the
protection provided by the Miranda warnings, as grounds for
requiring a lower standard of clarity in the pre-Miranda context. Davis, 512 U.S. at 460-61; Berghuis, 130 S. Ct. at 2260;
but see United States v. Doe, 170 F.3d at 1166. But here, after
Sessoms referenced a lawyer, the detective read Sessoms his
Miranda rights. Thus, Sessoms was Mirandized after he asked
about a lawyer, and, as such, was expressly advised of his
right to counsel. It was only after that advisement and Sessoms’s waiver that the police questioned him.
The majority asserts that the waiver only occurred because
the seasoned detective, aware that Sessoms might want a lawyer, used the brief time before he read Sessoms his Miranda
rights to pressure him into waiving them. Sessoms, however,
does not claim he was improperly coaxed into waiving his
Miranda rights; instead, he claims that he invoked his right to
counsel. And because the policy considerations emphasized
by the Supreme Court in Davis and Berghuis apply equally
before and after the Miranda rights have been read, it was not
unreasonable for the state court to require an unambiguous
request for counsel in this case.
Finally, and most importantly, the Supreme Court has never
held that a different standard applies prior to the reading of

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the Miranda rights. “ ‘[I]t is not an unreasonable application
of clearly established Federal law for a state court to decline
to apply a specific legal rule that has not been squarely established by this Court.’ ” Harrington, 131 S. Ct. at 786 (quoting
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
In these circumstances, I cannot conclude that the California Court of Appeal reached a decision that was contrary to
or an unreasonable application of clearly established federal
law in ruling that only an unambiguous invocation of the right
to counsel would have required the detectives to stop Sessoms’s interrogation. See Wright v. Van Patten, 552 U.S. 120,
126 (2008) (“Because our cases give no clear answer to the
question presented, let alone one in [petitioner’s] favor, it cannot be said that the state court unreasonably applied clearly
established Federal law.” (citations and internal quotation
marks omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006)
(“Given the lack of holdings from this Court . . . it cannot be
said that the state court unreasonably applied clearly established Federal law.”) (alterations and internal quotation marks
omitted); Yarborough v. Alvarado, 541 U.S. 652, 666-67
(2004) (holding that court was nowhere close to the mark in
ruling that the state court had unreasonably applied established federal law by failing to consider a suspect’s age when
determining custodial status, where “[the Supreme Court’s]
opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration”); DeWeaver v. Runnels, 556 F.3d 995, 1002 (9th Cir.
2009) (“We . . . could not conclude that application of the
Davis rule to an invocation of the right to remain silent is contrary to or an unreasonable application of Supreme Court precedent where the Supreme Court has neither squarely
addressed when an ambiguous statement amounts to an invocation of the right to remain silent nor refused to extend the
Davis rule to an invocation of the right to remain silent.”
(alterations and internal quotation marks omitted)).

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II
Having determined that it was not unreasonable to apply
Davis in this case, I also consider whether the state court was
objectively unreasonable in concluding that Sessoms’s statement was not an unambiguous request for counsel. Even if I
would have decided differently had I been on the California
Court of Appeal, the law is clear that “a federal habeas court
may not issue the writ simply because that court concludes in
its independent judgment that the state-court decision applied
[the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 2425 (2002). Our review is constrained, sometimes painfully so,
by AEDPA, which “preserves authority to issue the writ in
cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents. It goes no farther.” Harrington,
131 S. Ct. at 786.
Davis provides: “[I]f 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,
our precedents do not require the cessation of questioning.”
512 U.S. at 459. In this case, Sessoms first asked, “There
wouldn’t be any possible way that I could have a, a lawyer
present while we do this?” The California Court of Appeal
concluded that a reasonable police officer could have interpreted Sessoms’s first question as asking only whether he was
allowed to have a lawyer present, rather than actually requesting a lawyer. When reviewing a habeas petition from a state
court, this Court “must determine what arguments or theories
supported, or . . . could have supported, the state court’s decision; and then [we] must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme Court].” Harrington, 131 S. Ct. at 786.
The state court decision was not an objectively unreasonable application of Davis. Sessoms’s question, punctuated

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with hesitation, conditions, and phrased in the negative, is
subject to different interpretations and comparable to statements that this Court and other courts have found ambiguous.
Compare Davis, 512 U.S. at 455 (“Maybe I should talk to a
lawyer.”); 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?”); Clark v. Murphy, 331
F.3d 1062, 1065 (9th Cir. 2003) (“I think I would like to talk
to a lawyer.”), overruled on other grounds by Lockyer, 538
U.S. 63; United States v. Doe, 170 F.3d at 1166 (“What time
will I see a lawyer?”); Diaz v. Senkowski, 76 F.3d 61, 63-65
(2d Cir. 1996) (“I think I want a lawyer.”); Lord v. Duckworth, 29 F.3d 1216, 1218-21 (7th Cir. 1994) (“I can’t afford
a lawyer but is there any way I can get one?”); with Anderson
v. Terhune, 516 F.3d 781, 783 (9th Cir. 2008) (en banc) (“I
plead the fifth.”); Edwards, 451 U.S. at 479 (“I want an attorney before making this deal.”).
Sessoms also followed up his question with this statement:
“That’s what my dad told me to ask you guys. . . uh, give me
a lawyer.” It is unclear from this statement if Sessoms is
merely expressing his father’s opinion or if he is agreeing
with his father and he himself wants an attorney. Either interpretation is plausible. A reasonable jurist could conclude that
telling a detective “My dad told me to ask for a lawyer” is different than saying “I want an attorney.” Because it cannot be
said that no reasonable jurist would find either of Sessoms’s
statements, viewed individually or together, to be ambiguous
and equivocal, relief is barred by AEDPA.
The majority points to the detective’s reaction to Sessoms’s
question as evidence that the detective believed Sessoms
invoked his right to counsel. The officer stammered and, the
majority claims, proceeded to persuade Sessoms to waive his
right to counsel. The detective’s reaction, however, could easily have been that of an officer faced with a suspect who only
might have invoked his right to counsel and relayed his

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father’s advice at the start of an interrogation. The detective’s
answer supports this theory:
Uh, I want to back up to your question you asked
about an attorney. Um, first, before you ask questions, uh, I’m going to tell you why we’re here, just
lay it out and be up front. And then — then I’m
going to advise you of your rights. And then it’s up
— for you to decide if you want the attorney or not.
The majority believes the officers should have answered Sessoms’s question by simply saying “yes” and terminating the
interrogation. The majority claims that in the brief exchange
before Sessoms was read his Miranda rights, the detective
manipulated Sessoms into waiving his right to counsel. Again,
however, Sessoms is not claiming that he was pressured into
an involuntary waiver, but only that he asked for counsel,
which should have terminated the interrogation. “[T]he likelihood that a suspect would wish counsel to be present is not
the test for applicability of Edwards.” McNeil, 501 U.S. at
178. Unless Sessoms clearly invoked his right to counsel, the
police officers were not required to take any particular course
of action in response to his statements or questions. See
Davis, 512 U.S. at 460. As such, the majority’s focus on the
detective’s reaction at that stage is misplaced.
I acknowledge that this reasoning results in a harsh outcome for a nineteen-year-old who turned himself in, expressly
told the officers that his father wanted him to have a lawyer,
and may have been trying to be respectful when asking for
counsel. However, when it set out the rule in Davis, the
Supreme Court understood and accepted that a strict rule
would disadvantage certain individuals who wanted counsel:
We recognize that requiring a clear assertion of the
right to counsel might disadvantage some suspects
who — because of fear, intimidation, lack of linguistic skills, or a variety of other reasons — will not

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clearly articulate their right to counsel although they
actually want to have a lawyer present.
Davis, 512 at 460-61. The law is clear.
Could the police officers have assumed that Sessoms was
in fact asking for a lawyer? Yes. Was it objectively unreasonable for the California Court of Appeal to hold that a police
officer could have interpreted Sessoms’s statement as a possible request for a lawyer rather than an actual request for a
lawyer, which would not require the officer to stop the interrogation? I cannot say that it was. Because this Court is constrained by the deference mandated by AEDPA, even when
faced with a close case where it may have ruled differently
than the state court, I respectfully dissent.