Wade Robertson v. Rise Pichon, et al

Filing

FILED OPINION (SIDNEY R. THOMAS, CARLOS T. BEA and SANDRA S. IKUTA) In support of this claim, Robertson moved belatedly to file supplemental excerpts of record cited in his reply brief. We deny the motion as moot. AFFIRMED. Judge: SRT Concurring, Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [10339464]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WADE ROBERTSON,
Petitioner-Appellant,

No. 15-16463
D.C. No.
5:10-cv-05027-EJD

v.
RISE JONES PICHON, Judge of
Santa Clara Superior Court;
ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted October 18, 2016
San Francisco, California
Filed March 2, 2017
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Chief Judge Thomas

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ROBERTSON V. PICHON
SUMMARY*

Habeas Corpus
The panel affirmed the district court’s denial of Wade
Robertson’s habeas corpus petition challenging his California
state conviction for driving under the influence of alcohol and
possession of a billy club.
Robertson contends that he was under arrest at the time a
police officer asked him to take a chemical test, that he was
therefore in custody at the time he unambiguously invoked
his right to counsel, and that the state court’s failure to
suppress his statements regarding the billy club during
subsequent questioning violated his Fifth Amendment rights
under Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards
v. Arizona, 451 U.S. 477 (1981).
The panel held that because the Supreme Court has not
addressed whether a defendant’s request for counsel in
response to a request to submit to a chemical test constitutes
an invocation of his Miranda rights for purposes of any future
custodial interrogations, the state court’s ruling that the
admission of Robertson’s statements did not violate Miranda
and Edwards is not objectively unreasonable.
Chief Judge Thomas concurred. He agreed that the
district court should be affirmed given the AEDPA standard
of review, but wrote that if the appeal were on direct review,
one might reach a different conclusion.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Marc J. Zilversmit (argued), San Francisco, California, for
Petitioner-Appellant.
Jill M. Thayer (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Office of
the Attorney General, San Francisco, California; for
Respondents-Appellees.

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OPINION

IKUTA, Circuit Judge:
Wade Robertson was found guilty by a California state
jury of driving under the influence of alcohol and possession
of a billy club and was sentenced to 12 days in jail and three
years on probation. Robertson appeals the district court’s
denial of his petition for a writ of habeas corpus.1 We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm.
I
The evening of April 27, 2006, Wade Robertson, was
celebrating with four others at Nola’s Restaurant in Palo Alto,
California. The group ordered 24 shots of liquor and six
mixed drinks over the course of four hours. In addition,
Robertson paid for a separate round of drinks with a $100
bill, and according to the waitress, told her to keep the
change.
Shortly after midnight, Robertson complained to the
manager on duty, Shiraz Qadri, that the waitress had failed to
return the change for the $100 bill. In order to avoid
problems, Qadri reduced Robertson’s credit card bill by $90.
Qadri testified that throughout this interaction, Robertson
1

We have jurisdiction over Robertson’s appeal because he filed his
petition while he was on probation. Probationary status qualifies as being
“in custody” for jurisdictional purposes, and a petitioner’s “subsequent
release from custody does not deprive the court of its jurisdiction.”
Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Further, because
Robertson is presumed to experience collateral consequences as a result
of his convictions, the case is not moot. See id.

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appeared intoxicated, with “dilated eyes, red face, red eyes”
and with alcohol on his breath. Qadri offered to call
Robertson’s group a cab. Robertson declined.
After Robertson left the restaurant, Qadri saw him walk
over to a white pickup truck. Agent Dan Ryan, a Palo Alto
police officer on patrol that evening, also saw Robertson
standing outside a parked pickup truck on the street near the
restaurant. As Robertson prepared to take off in the truck,
Qadri flagged down Agent Ryan and told him, “Hey, those
guys told me they were going to take a cab and they have
been drinking pretty heavily.”
Not long afterward, Agent Ryan saw the white truck make
an illegal left turn a few blocks away from the restaurant,
cutting off another vehicle. Agent Ryan followed the truck,
caught up to it when the driver pulled into a gas station, and
initiated a traffic stop. Robertson quickly exited the truck and
began walking towards the patrol vehicle. Once Robertson
got out of the truck, Agent Ryan recognized him from the
prior encounter. Agent Ryan recalled that Robertson “had an
odor of an alcoholic beverage on his breath.” According to
Agent Ryan, Robertson loudly and aggressively asked him
why he had been stopped, and denied that he had been
drinking. When Agent Ryan pointed out the smell of alcohol
on his breath, Robertson called him a liar.
At that point two additional officers, David Guy and Cole
Ghilarducci, arrived at the scene, and observed Agent Ryan
administering a series of field sobriety tests. Robertson

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performed poorly: the nystagmus gaze test2 indicated the
presence of blood alcohol, and he displayed poor
coordination and balance. Based on the field sobriety tests
and Robertson’s demeanor, Agent Ryan concluded that
Robertson had been driving under the influence of alcohol.
Officer Guy testified that he reached the same conclusion,
and that it was not a close call. When Officer Guy looked
into the white truck, he saw a billy club lying between the
driver and passenger seats. He collected the billy club for
evidence.
Agent Ryan arrested Robertson and took him to the police
department’s booking area. When Agent Ryan asked
Robertson to take a breath test, he refused. He also refused
to take a blood test. At that point, Agent Ryan gave
Robertson a form issued by the California Department of
Motor Vehicles, which provided the following information,
among other things:
1. You are required by state law to submit to
a chemical test to determine the alcohol
and/or drug content of your blood.
2. a. Because I believe you are under the
influence of alcohol, you have a choice of
taking a breath or blood test. . . .

2
According to the testimony, when administering a nystagmus gaze
test, an officer asks a person to track a finger or a pen using only his eyes,
without moving his head. Nystagmus is present when the iris of the eye
has a jerky or skipping movement as it moves left and right and suggests,
in most individuals, the presence of alcohol in the bloodstream.

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4. Refusal or failure to complete a test may be
used against you in court. Refusal or failure to
complete a test will also result in a fine and
imprisonment if this arrest results in a
conviction of driving under the influence.
5. You do not have the right to talk to an
attorney or have an attorney present before
stating whether you will submit to a test,
before deciding which test to take, or during
the test. . . .
After Robertson read the form, he told Agent Ryan that he
wanted to speak with his attorney before submitting to any
chemical test. Pointing to section 5 of the form (which
actually stated he did not have the right to an attorney),
Robertson said “See, I have the right to an attorney right here,
and I want my attorney.” Agent Ryan tried to correct this
misreading of section 5, but when Agent Ryan asked
Robertson again to take a breath test, Robertson replied,
“Absolutely not,” and in response to the request to take a
blood test, Robertson replied, “No, I will not take a blood
test.”
At some point during the booking process, Agent Ryan
gave Robertson Miranda warnings. After reading Robertson
his rights, Agent Ryan asked Robertson if the billy club that
Officer Guy found in Robertson’s truck belonged to him.
Robertson said, “[Y]es, it belonged in the truck.” He then
asked “if it was a misdemeanor to possess that in California?”
Agent Ryan told him it “could be charged either as a
misdemeanor or a felony,” and gave Robertson a copy of the
California Penal Code so he could read the law for himself.
Agent Ryan also administered a second series of field

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sobriety tests in the booking area. These tests, which were
recorded on videotape, showed that Robertson again
performed poorly.
Robertson was subsequently charged with two criminal
counts. First, he was charged with misdemeanor driving
under the influence of alcohol in violation of section 23152(a)
of the California Vehicle Code,3 along with an enhancement
for refusing to submit to a chemical test as provided under
section 23577 of the Vehicle Code (referred to here as a
“refusal enhancement”).4 Second, he was charged with

3

At the time of the offense, section 23152(a) of the California
Vehicle Code provided:
(a) It is unlawful for any person who is under the
influence of any alcoholic beverage or drug, or under
the combined influence of any alcoholic beverage and
drug, to drive a vehicle.
4

Section 23577 of the California Vehicle Code imposes various
penalties on any person convicted of a violation of Section 23152 or
23153 if “at the time of the arrest leading to that conviction that person
willfully refused a peace officer’s request to submit to, or willfully failed
to complete, the chemical test or tests pursuant to Section 23612.”
In turn, section 23612 of the California Vehicle Code provides, in
pertinent part:
(a)(1)(A) A person who drives a motor vehicle is
deemed to have given his or her consent to chemical
testing of his or her blood or breath for the purpose of
determining the alcoholic content of his or her blood, if
lawfully arrested for an offense allegedly committed in
violation of Section 23140, 23152, or 23153. If a blood
or breath test, or both, are unavailable, then paragraph
(2) of subdivision (d) applies. . . .

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misdemeanor possession of a billy club in violation of section
12020(a)(1) of the California Penal Code.5
Robertson filed a pretrial motion to suppress evidence
obtained during the traffic stop. Robertson argued that Agent
Ryan had not been directly behind Robertson’s truck. From
this fact, Robertson argued, it could be inferred that Agent
Ryan had not observed the illegal left turn and therefore, the
traffic stop was unlawful. To support this theory, two expert
witnesses testified that bank surveillance photographs of the
intersection where Robertson made the illegal left turn
showed that Agent Ryan’s police car was not immediately
behind Robertson’s truck. Robertson also called two
eyewitnesses to testify that Agent Ryan’s police car was not
behind his truck. The trial court denied the motion to
suppress. It stated that it did not credit the testimony of the
eyewitnesses, but did credit Agent Ryan’s testimony that he
personally observed Robertson’s illegal left turn.

(C) The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having
reasonable cause to believe the person was driving a
motor vehicle in violation of Section 23140, 23152, or
23153.
5

At the time of the offense, section 12020(a)(1) of the California
Penal Code provided, in pertinent part:
(a) Any person in this state who does any of the
following is punishable by imprisonment in a county
jail not exceeding one year or in the state prison:
(1) Manufactures or causes to be manufactured, imports
into the state, keeps for sale, or offers or exposes for
sale, or who gives, lends, or possesses any . . .
instrument or weapon of the kind commonly known as
a blackjack, slungshot, billy, sandclub, sap, or sandbag.

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Robertson subsequently filed a motion in limine to admit
into evidence the bank surveillance photographs and related
expert testimony at trial. The trial court denied the motion,
stating that the legality of the traffic stop had already been
fully litigated, but that it would allow Robertson to renew his
motion at trial to use the evidence to challenge Agent Ryan’s
credibility.
At trial, Agent Ryan testified regarding the traffic stop,
the field sobriety tests conducted at the scene, and the events
in the booking area in the police department. He also testified
that the billy club was similar to batons used by the Palo Alto
police department. Robertson’s trial counsel did not object to
the admission of these statements.
For the defense, Robertson’s counsel introduced
eyewitness testimony that Robertson had not been drinking
the night of April 27 and that he was not drunk when he left
the restaurant. A field sobriety expert testified that Agent
Ryan had improperly administered several of the field
sobriety tests. Robertson contended that the smell of his
breath was attributable to hypoglycemia. A licensed private
investigator testified that the billy club had nonviolent uses
such as checking tire pressure and serving as a handle for a
tire jack. Robertson attempted again to introduce the bank
surveillance photos to impeach Agent Ryan’s credibility, but
the court did not permit it, on the ground “that the probative
value is substantially outweighed by the undue consumption
of time.”
At the close of evidence, Robertson moved for a judgment
of acquittal on the charge of possessing a billy club in
violation of section 12020(a)(1) on the ground that the
evidence was insufficient to establish that Robertson knew

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that the billy club was a weapon or could be used as a
weapon. The trial court denied the motion, holding that the
evidence that Robertson had asked Agent Ryan whether
possession of the billy club was a misdemeanor showed that
Robertson knew the billy club was a weapon.
In closing argument, the prosecutor criticized Robertson’s
theory of the case, arguing:
Ladies and gentlemen, to find reasonable
doubt in this case you got to believe Shiraz
Qadri lied about a complete stranger; Agent
Ryan lied about a complete stranger that
night; Officer Guy lied about a complete
stranger that night; that defendant just can’t
follow instructions, that he just has horrible
balance, despite being a wrestler which
requires great balance. He lies about alcohol
for absolutely no reason. He had some good
reason not to blow besides guilt, and he was
willing to take the consequences for some
reason besides being guilty.
The trial court then charged the jury. With respect to the
refusal enhancement under section 23577 of the California
Vehicle Code, the court provided the following instruction:
If you find the defendant guilty of driving
under the influence of alcohol, you must then
decide whether the People have proved the
additional allegation that the defendant
willfully refused to submit to a chemical test
to determine blood alcohol content.

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To prove this allegation the People must
prove that:
1. A peace officer asked the defendant to
submit to a chemical test to determine
blood alcohol content;
2. The peace officer fully advised the
defendant of the requirement to submit to
a test and the consequences of not
submitting to a test;
AND
3. The defendant willfully refused to
submit to a test.

The court did not instruct the jury that it was required to find
that Robertson had been lawfully arrested.
The jury found Robertson guilty of driving under the
influence and of willfully refusing to submit to a chemical
test to determine blood alcohol content. It also convicted
Robertson of possession of a billy club. Robertson brought
a motion for a new trial, alleging (among other arguments)
that the admission of his statement that he knew the billy club
was in the truck, and his question whether possession was
illegal, violated his rights under Miranda v. Arizona, 384 U.S.
436 (1966). The trial court denied the motion.
On appeal to the Appellate Division of the Santa Clara
County Superior Court, Robertson argued that once he
invoked his right to counsel, Agent Ryan’s continued
questioning violated his rights under Edwards v. Arizona,

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451 U.S. 477 (1981), and therefore Robertson’s statements
about the billy club were inadmissible. The Appellate
Division rejected this argument, saying only “Appellant’s
statements did not violate Miranda.”6 The California Court
of Appeal summarily denied Robertson’s request to consider
this and other claims, and the California Supreme Court
summarily denied his petition for a writ of state habeas
corpus.
Robertson filed a petition for a writ of habeas corpus in
federal district court in November 2010. The district court
denied the petition, but granted a certificate of appealability
limited to Robertson’s claim that the trial court’s admission
of his statements regarding the billy club violated Edwards.
II
“We review de novo the district court’s denial of a § 2254
habeas petition.” Murdoch v. Castro, 609 F.3d 983, 989 (9th
Cir. 2010) (en banc) (plurality opinion). Under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a petition for habeas corpus pending before a
federal court “shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim” resulted in a decision
that either “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), or “was based on an unreasonable

6

The Appellate Division also denied Robertson’s subsequent
application to certify the case for decision by the California Court of
Appeal.

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determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2).
“The starting point for cases subject to § 2254(d)(1) is to
identify the ‘clearly established Federal law, as determined by
the Supreme Court of the United States.’” Marshall v.
Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting
28 U.S.C. § 2254(d)(1)). Clearly established federal law is
limited to “the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions,” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam) (quoting White v. Woodall,
134 S. Ct. 1697, 1702 (2014)), and “[c]ircuit precedent
cannot ‘refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that [the
Supreme Court] has not announced,’” Lopez v. Smith, 135 S.
Ct. 1, 4 (2014) (per curiam) (quoting Marshall, 133 S. Ct. at
1450). “[W]hen a Supreme Court decision does not ‘squarely
address[] the issue in th[e] case’ or establish a legal principle
that ‘clearly extend[s]’ to a new context to the extent required
by the Supreme Court in these recent decisions, it cannot be
said, under AEDPA, there is ‘clearly established’ Supreme
Court precedent addressing the issue before us, and so we
must defer to the state court’s decision.” Moses v. Payne,
555 F.3d 742, 754 (9th Cir. 2009) (second, third, and fourth
alterations in original) (citation omitted) (quoting Wright v.
Van Patten, 552 U.S. 120, 125 (2008)). Said otherwise,
“when a state court may draw a principled distinction
between the case before it and Supreme Court caselaw, the
law is not clearly established for the state-court case.”
Murdoch, 609 F.3d at 991.
Where there is clearly established Supreme Court
precedent on point, we may not hold a state court’s
application of that precedent to be unreasonable unless it is

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“‘objectively unreasonable,’ not merely wrong; even ‘clear
error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “[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, 24–25 (2002) (per curiam). “A state
court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Said
otherwise, “a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Woodall, 134 S. Ct. at 1702
(quoting Richter, 562 U.S. at 103). “AEDPA’s requirements
reflect a ‘presumption that state courts know and follow the
law,’” Donald, 135 S. Ct. at 1376 (quoting Visciotti, 537 U.S.
at 24), and its “highly deferential standard for evaluating
state-court rulings . . . demands that state-court decisions be
given the benefit of the doubt,” Cullen v. Pinholster, 563 U.S.
170, 181 (2011) (quoting Visciotti, 537 U.S. at 24).
III
On appeal, Robertson claims that the state trial court’s
failure to suppress his statements regarding the billy club
after Robertson stated “I want my attorney” violated his Fifth
Amendment rights under the principles set forth in Edwards,
451 U.S. 477. Robertson contends that he was under arrest at
the time Agent Ryan asked him to take a chemical test and
was therefore in custody at the time he unambiguously

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invoked his right to counsel. Accordingly, Robertson argues,
Agent Ryan’s subsequent questioning before counsel was
made available was directly contrary to Edwards, and
accordingly, the Appellate Division’s rejection of this claim
was an unreasonable application of Edwards.
A
To evaluate this claim, we begin with a review of
Edwards and other relevant Supreme Court precedent.
In Edwards, a defendant was arrested for robbery,
burglary, and first-degree murder, and was informed of his
rights at the police station as required by Miranda. 451 U.S.
at 478. After some preliminary negotiations with the police
about a plea bargain, the defendant said, “I want an attorney
before making a deal.” Id. at 479. The police stopped
questioning the defendant, but renewed interrogation the next
day. Id. In response to this interrogation, the defendant
ultimately confessed. Id. The state courts refused to suppress
his confession. Id. at 480.
The Supreme Court reversed. Id. As Edwards explained,
Miranda “determined that the Fifth and Fourteenth
Amendments’ prohibition against compelled selfincrimination required that custodial interrogation be
preceded by advice to the putative defendant that he has the
right to remain silent and also the right to the presence of an
attorney.” 451 U.S. at 481–82 (citing Miranda, 384 U.S. at
479). Edwards concluded that “additional safeguards are
necessary when the accused asks for counsel.” Id. at 484.
Therefore, Edwards adopted the prophylactic rule “that when
an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right

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cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has
been advised of his rights.” Id. When “an accused . . .
having expressed his desire to deal with the police only
through counsel,” he “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.”
Id. at 484–85. Because the defendant in Edwards had
invoked his Fifth Amendment right to counsel under
Miranda, and that right had been infringed by the police
returning to ask him more questions, the Court held that “the
fruits of the interrogation initiated by the police” could not be
used against him. Id. at 485.
The Supreme Court has indicated that there are limits on
a defendant’s rights under Miranda and Edwards. First, “the
special procedural safeguards outlined in Miranda are
required not where a suspect is simply taken into custody, but
rather where a suspect is subjected to interrogation,” Rhode
Island v. Innis, 446 U.S. 291, 300 (1980), and Edwards
reiterated that “[t]he Fifth Amendment right identified in
Miranda is the right to have counsel present at any custodial
interrogation,” 451 U.S. at 485–86.
“Absent such
interrogation, there would have been no infringement of the
right.” Id. Accordingly, any statements sought to be
suppressed must have been the product of interrogation.
The term “interrogation” has a specific meaning in this
context. The Court has clarified that not “all statements
obtained by the police after a person has been taken into
custody are to be considered the product of interrogation.”
Innis, 446 U.S. at 299. Rather, “Miranda safeguards come
into play whenever a person in custody is subjected to either

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express questioning or its functional equivalent.” Id. at
300–01. “‘[I]nterrogation,’ as conceptualized in the Miranda
opinion, must reflect a measure of compulsion above and
beyond that inherent in custody itself.” Id. at 300.
The Supreme Court has previously explained how
Miranda and Edwards apply to police requests that a
suspected drunk driver submit to chemical testing. In South
Dakota v. Neville, police stopped a suspected drunk driver,
who refused to take a blood-alcohol test. 459 U.S. 553, 555
(1983). The defendant “sought to suppress all evidence of his
refusal to take the blood-alcohol test,” and the state court
granted the suppression motion. Id. at 556. The Supreme
Court reversed, holding that Edwards’s prophylactic rule was
not implicated under these circumstances because “[i]n the
context of an arrest for driving while intoxicated, a police
inquiry of whether the suspect will take a blood-alcohol test
is not an interrogation within the meaning of Miranda.” Id.
at 564 n.15; see also Pennsylvania v. Muniz, 496 U.S. 582,
604 (1990) (holding that a defendant’s incriminating
utterances during the administration of three physical sobriety
tests and a breath test for blood-alcohol content at the police
station were not in response to custodial interrogation, and
that therefore the absence of Miranda warnings did not
require suppression of the statements at trial).7
The Court has noted a second limitation of Edwards’s
prophylactic rule. McNeil v. Wisconsin held that a

7
In Birchfield v. North Dakota, the Supreme Court held that “a breath
test, but not a blood test, may be administered as a search incident to a
lawful arrest for drunk driving.” 136 S. Ct. 2160, 2185 (2016). Because
Robertson refused to submit to a breath test and refused to submit to a
blood test, Birchfield does not affect our analysis.

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defendant’s invocation of the Sixth Amendment right to
counsel at his initial appearance before a court was specific
to the type of legal assistance required and to the specific
crime for which the defendant had invoked the right to
counsel. 501 U.S. 171, 178 (1991). The invocation of a Sixth
Amendment right as to one crime did not count as an
invocation of the Miranda-Edwards right to respond to
custodial interrogation only through counsel with respect to
a different crime. Id. Rather, Edwards “applies only when
the suspect ha[s] expressed his wish for the particular sort of
lawyerly assistance that is the subject of Miranda,” meaning
that the defendant must make “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.” Id. (quoting Edwards, 451 U.S.
at 484) (internal quotation marks and emphasis omitted). The
Court rejected the argument that a defendant could get around
the rule that the right to counsel is specific to the
circumstances by invoking Miranda and Edwards at a pretrial
hearing, stating that “we have . . . never held that a person can
invoke his Miranda rights anticipatorily, in a context other
than ‘custodial interrogation.’” McNeil, 501 U.S. at 182 n.3.
In other words, “[t]he fact that we have allowed the Miranda
right to counsel, once asserted, to be effective with respect to
future custodial interrogation does not necessarily mean that
we will allow it to be asserted initially outside the context of
custodial interrogation, with similar future effect.” Id.
In Bobby v. Dixon, the Supreme Court considered
McNeil’s limitation on the Edwards rule in the habeas

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context. 132 S. Ct. 26, 29 (2011) (per curiam).8 In Dixon, the
defendant had a “chance encounter” with the police at the
local police station, and refused to answer questions about a
crime without his lawyer present. Id. at 28. After being
arrested, interrogated, and released, the defendant returned to
the police station and stated that he talked to his attorney, and
wanted to confess. Id. The state court allowed the murder
confession to be admitted into evidence, but the Sixth Circuit
granted the defendant’s federal habeas petition on the basis
that the state court’s admission of his confession was an
unreasonable application of Miranda. Id. at 29. The
Supreme Court reversed, holding that the Sixth Circuit was
“plainly wrong” in holding that Miranda clearly established
that the defendant’s initial refusal to talk to the police without
a lawyer required the suppression of the subsequent
confession. Id. The Court noted that the defendant “was not
in custody during his chance encounter with police,” and “this
Court has ‘never held that a person can invoke his Miranda
rights anticipatorily, in a context other than custodial
interrogation.’” Id. (quoting McNeil, 501 U.S. at 171 n.3).
Reading these cases together, the Supreme Court has
made clear that a defendant has a Fifth Amendment right to
have counsel present at any custodial interrogation, and once
the defendant has invoked this right, the defendant “is not
subject to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself

8

Although “[s]tate-court decisions are measured against [the
Supreme] Court’s precedents as of ‘the time the state court renders its
decision,’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (quoting
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)), we are bound by the
Supreme Court’s AEDPA decisions regardless when the opinion was
issued.

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initiates further communication, exchanges, or conversations
with the police.” Edwards, 451 U.S. at 484–85. But if a
defendant is not in the context of custodial interrogation —
such as when a suspected drunk driver is asked by police to
submit to chemical testing — the safeguards of Miranda and
Edwards are inapplicable. This limitation of Edwards’s
prophylactic rule applies even if the defendant had previously
invoked Miranda and Edwards before being placed in a
custodial interrogation context.
B
In light of this analysis of the Supreme Court’s clearly
established precedent, we must determine whether, under
AEDPA’s deferential standard, the Appellate Division was
objectively unreasonable in determining that Robertson was
not entitled to the safeguards of Miranda and Edwards. We
conclude that the state court could have made a principled
distinction of these cases on two grounds.
First, although Robertson was under arrest and in custody
at the booking station, a state court could have reasonably
concluded that Agent Ryan’s request that Robertson submit
to chemical testing did not constitute custodial interrogation,
because such a request “[i]n the context of an arrest for
driving while intoxicated” does not constitute “an
interrogation within the meaning of Miranda.” Neville,
459 U.S. at 564 n.15; see also Muniz, 496 U.S. at 604.
Accordingly, a state court could reasonably conclude that
Robertson’s statement “I want my attorney” was an attempt
to “invoke his Miranda rights anticipatorily, in a context
other than ‘custodial interrogation.’” McNeil, 501 U.S. at 182
n.3. Because the Supreme Court has stated that it has never
answered the question whether a defendant can make such an

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anticipatory invocation, a state court’s conclusion that
Robertson’s anticipatory invocation of his right to counsel did
not trigger any rights under Edwards could not be an
unreasonable application of Supreme Court precedent. See
Donald, 135 S. Ct. at 1376.
Second, even though a police officer could infer that
Robertson’s statement that he would not submit to chemical
testing without a lawyer meant that Robertson also wanted a
lawyer for subsequent questioning, McNeil tells us that “the
likelihood that a suspect would wish counsel to be present is
not the test for applicability of Edwards,” 501 U.S. at 178
(emphasis omitted). Rather, the defendant must express “his
wish for the particular sort of lawyerly assistance that is the
subject of Miranda,” namely, “an expression of a desire for
the assistance of an attorney in dealing with custodial
interrogation by the police.” Id. A state court could
reasonably conclude that Robertson’s invocation of the right
to counsel in the context of responding to a request to submit
to chemical testing, did not express his desire for the
assistance of counsel in dealing with custodial interrogation.
Under AEDPA, we must defer to such a determination. See
Dixon, 132 S. Ct. at 29 (2011).
Robertson argues that such a conclusion is squarely
precluded by our decision in Sessoms v. Grounds, 776 F.3d
615 (9th Cir. 2015) (en banc). In Sessoms, a defendant in
police custody was interrogated by two police officers. Id. at
617. After the exchange of a few inconsequential remarks,
the defendant stated: “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 asked me to ask you guys . . . uh,
give me a lawyer.” Id. at 617–18 (second alteration in
original). Instead of treating this statement as the invocation

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of a right to counsel, the police told the defendant that having
a lawyer “would only hurt him,” and then read him his
Miranda rights. Id. at 619. The defendant waived his
Miranda rights and confessed to the crime. Id. The state
court rejected the defendant’s claim that police had violated
his Miranda rights on the ground that the defendant’s
statements were ambiguous, and therefore it was “not
‘sufficiently clear[ ] that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.’” Id. at 620 (alteration in original) (quoting
People v. Sessoms, No. C041139, 2004 WL 49720, at *3
(Cal. Ct. App. Jan. 12, 2004)). Accordingly, the state court
denied the defendant’s suppression motion. Sessoms rejected
this reasoning. It concluded that the case “involves a
custodial interrogation in which the defendant should have
been informed of his rights before he could knowingly waive
them,” id. at 621, that the defendant’s request for counsel was
unambiguous, and that the state court’s determination to the
contrary was “an unreasonable application of Supreme Court
precedent,” id. at 629.
According to Robertson, Sessoms is directly on point.
Like the defendant in that case, Robertson contends, he was
in custody, and made a request for counsel during his
preliminary interactions with Agent Ryan before formal
interrogation began (and before he was read his Miranda
rights). But there is a key difference between his situation
and the situation of the defendant in Sessoms: Sessoms held
that the defendant was in the context of a custodial
interrogation at the time he invoked his right to counsel. See
id. at 626. The central issue was the ambiguity of the
defendant’s request for counsel, not the timing of that request
or the purposes for which that request was made. See id. at
627–29. In this case, by contrast, the state court could

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reasonably conclude that Robertson was not in the context of
a custodial interrogation at the time he requested counsel.
Because Sessoms did not address the question raised by our
case, it is inapposite here.9
In sum, the Supreme Court has not addressed the question
whether a defendant’s request for counsel in response to a
request to submit to a chemical test constitutes an invocation
of his Miranda rights for purposes of any future custodial
interrogations. Therefore, we cannot say that the state court’s
ruling, that the admission of Robertson’s statements
regarding the billy club did not violate Miranda and Edwards,
is objectively unreasonable.10 We therefore affirm the district
court’s denial of Robertson’s petition.

9

For the same reason, Robertson’s reliance on Jones v. Harrington
does not help him. See 829 F.3d 1128, 1141 (9th Cir. 2016) (holding that
a state court’s determination that a defendant’s invocation of the right to
remain silent was ambiguous was an unreasonable application of Supreme
Court precedent where the defendant was subject to hours of custodial
interrogation, and stated “I don’t want to talk no more”).
10

Our analysis is not affected by Missouri v. Seibert, 542 U.S. 600
(2004). Under Justice Kennedy’s concurrence, which we have held to be
controlling, see United States v. Williams, 435 F.3d 1148, 1158 (9th Cir.
2006), “postwarning statements that are related to the substance of
prewarning statements must be excluded absent specific, curative steps”
if “an interrogator uses [a] deliberate, two-step strategy, predicated upon
violating Miranda during an extended interview,” Seibert, 542 U.S. at 621
(Kennedy, J., concurring in the judgment). Seibert is not implicated here:
Robertson makes no allegation that Agent Ryan employed a “deliberate,
two-step strategy” in order to circumvent Miranda, and Robertson’s
postwarning statements at issue here, regarding the billy club, do not relate
to the substance of statements Robertson made prewarning.

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IV
Robertson also raises five uncertified claims. “When a
brief includes uncertified issues, we may treat it as a request
to expand the scope of the certificate of appealability.”
Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008);
see Ninth Circuit Rule 22-1(e). Under AEDPA, a certificate
of appealability (COA) cannot be issued or expanded unless
“the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “We look to
the District Court’s application of AEDPA to [Robertson’s]
constitutional claims,” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003), and Robertson “must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong” in light of AEDPA,
id. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
First, Robertson contends that his trial counsel’s failure to
object to the admission of his statements regarding the billy
club amounted to ineffective assistance of counsel.11 A
petitioner claiming ineffective assistance of counsel must
show: (1) “that counsel’s performance was deficient” and
(2) “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). In
claiming that his counsel was deficient, Robertson points to
his trial counsel’s declaration, initially submitted with
Robertson’s motion for a new trial, stating that counsel did
not object to the admission of Robertson’s statements about
the billy club solely due to his mistaken belief that section

11

In support of this claim, Robertson moved belatedly to file
supplemental excerpts of record cited in his reply brief. We deny the
motion as moot.

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12020(a)(1) of the California Penal Code was a specific intent
crime, and the government had not established that Robertson
knew having a billy club was a crime. The trial court rejected
this contention on the ground that Robertson’s trial counsel
“may have believed that the objection would have been futile
or because it enabled the defendant to present to the jury his
statement that he did not know it was against the law to have
the baton.” The district court rejected this ineffective
assistance claim without comment.
No reasonable jurist would find the district court’s ruling
debatable, because the state court’s determination that the
counsel could have had strategic reasons for not objecting to
admission of Robertson’s statements was not an unreasonable
application of Strickland, which “mandates a ‘strong
presumption’ that counsel acted ‘for tactical reasons rather
than through sheer neglect.’” Demirdjian v. Gipson, 832 F.3d
1060, 1066–67 (9th Cir. 2016) (quoting Yarborough v.
Gentry, 540 U.S. 1, 8 (2003) (per curiam)). Trial counsel’s
post-hoc explanation that his decision was based on a legal
error is not dispositive, because Strickland “calls for an
inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.” Richter,
562 U.S. at 110.
Next, Robertson asserts that the Appellate Division’s
decision that the instructional error was harmless was an
unreasonable application of Chapman v. California, 386 U.S.
18 (1967). Robertson argued that the trial court’s instructions
on section 23577 (the enhancement based on his refusal to
submit to blood or breath alcohol test) missed an element of
the offense (that he had been lawfully arrested) and
contended that the trial court’s failure to sua sponte instruct
the jury on this element violated his rights under Apprendi v.

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New Jersey, 530 U.S. 466 (2000), to have the prosecution
prove every element of his offense beyond a reasonable
doubt. The Appellate Division held that any instructional
error was harmless, stating: “Because the jury found beyond
a reasonable doubt that the appellant had driven under the
influence of alcohol, the jury found that appellant’s arrest was
lawful.”
The district court’s rejection of Robertson’s constitutional
claim is not debatable. At trial, the state presented
overwhelming evidence that Agent Ryan had reasonable
cause to believe that Robertson had been driving under the
influence of alcohol and could cause bodily harm or property
damage, and therefore Robertson’s arrest was lawful. See
Cal. Veh. Code § 40300.5 (providing that “a peace officer
may, without a warrant, arrest a person when the officer has
reasonable cause to believe that the person had been driving
while under the influence of an alcoholic beverage” if “[t]he
person may cause injury to himself or herself or damage
property unless immediately arrested,” among other
situations). Even assuming the refusal enhancement contains
a lawful-arrest element, the Appellate Division could have
reasonably concluded that the trial court’s failure to instruct
the jury on that element was harmless under Chapman.
Robertson’s appeal to Brecht v. Abrahamson, 507 U.S. 619
(1993), is unavailing because “a petitioner ‘necessarily cannot
satisfy’ the Brecht requirement of showing that he was
‘actually prejudiced’ by the state court’s error . . . ‘if a
fairminded jurist could agree with the [state appellate court]
that [the alleged error] met the Chapman standard of
harmlessness.’” Sifuentes v. Brazelton, 825 F.3d 506, 535
(9th Cir. 2016) (first alteration in original) (quoting Davis v.
Ayala, 135 S. Ct. 2187, 2199(2015)).

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Robertson next argues that the Appellate Division
unreasonably applied Crane v. Kentucky, 476 U.S. 683
(1986), in determining that the trial court’s exclusion of
evidence relating to Agent Ryan’s credibility did not violate
his right to present a complete defense. The trial court had
excluded the bank surveillance photographs and related
expert testimony that had been previously admitted at the
suppression hearing, reasoning “that the probative value is
substantially outweighed by the undue consumption of time.”
See Cal. Evid. Code § 352.
We have previously held that a trial court’s exercise of
discretion to exclude evidence under a rule of evidence that
requires balancing probative value against prejudice could not
be an unreasonable application of clearly established
Supreme Court precedent, because the Court has never
addressed the question whether such a rule could violate a
defendant’s constitutional rights. See Moses, 555 F.3d at
758–59. No Supreme Court decision has established such a
rule since we reached this conclusion in Moses. Therefore,
no reasonable jurist could disagree with the district court’s
conclusion that the state court’s rejection of Robertson’s
Crane claim was not contrary to, or an unreasonable
application of, clearly established federal law.
Robertson also argues that the Appellate Division’s
conclusion that there was no showing of prosecutorial
misconduct was contrary to Darden v. Wainwright, 477 U.S.
168 (1986). Robertson claimed that the prosecutor engaged
in misconduct in telling the jury that “to find reasonable
doubt in this case you got to believe . . . [that Robertson] had
some good reason not to blow besides guilt, and he was
willing to take the consequences for some reason besides
being guilty.” The district court rejected this claim, and no

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reasonable jurist could disagree with this conclusion. Darden
instructs “that a prosecutor’s improper comments amount to
a constitutional violation if they ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process. ’” Deck v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2014)
(quoting Darden, 477 U.S. at 181). In making this
determination, a court may consider “(1) whether the
prosecutor’s comments manipulated or misstated the
evidence; (2) whether the trial court gave a curative
instruction; and (3) the weight of the evidence against the
accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th
Cir. 2005). Here, the state court could have reasonably found
that the trial was not infected with unfairness, given that the
prosecutor’s comments are best understood as characterizing
Robertson’s argument rather than misstating the evidence, the
trial court instructed jurors to disregard “attorneys’ comments
on the law” to the extent they conflicted with the court’s
instructions,, and the evidence against Robertson at trial was
overwhelming.12 See id.
Finally, Robertson argues that the Appellate Division’s
determination that section 12020 of the California Penal Code
does not violate the Second Amendment is an unreasonable
application of District of Columbia v. Heller, 554 U.S. 570
(2008). No reasonable jurist could disagree with the district
court’s rejection of this argument, given that the Supreme
12

Robertson’s reliance on Miller v. Pate, 386 U.S. 1 (1967), and
Alcorta v. Texas, 355 U.S. 28 (1957) (per curiam), is misplaced. No
reasonable jurist could disagree that the state court could have drawn a
principled distinction between this case on the one hand and Miller and
Alcorta on the other, as both of those cases involved the elicitation of false
testimony in the presentation of the prosecution’s case rather than a
characterization of the defendant’s theory of the case in closing
arguments. See Miller, 386 U.S. at 3–4; Alcorta, 355 U.S. at 29–30.

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Court has never ruled on whether there is a constitutional
right to possess a billy club. See id. at 574. Robertson’s
reliance on McDonald v. City of Chicago, 561 U.S. 742
(2010), and Caetano v. Massachusetts, 136 S. Ct. 1027
(2016) (per curiam), fails at the threshold. Neither McDonald
nor Caetano had been issued by the Supreme Court before the
Appellate Division affirmed Robertson’s convictions on
direct appeal in 2009, and therefore neither can constitute
“clearly established federal law . . . as of the time of the state
court decision,” Hedlund v. Ryan, 815 F.3d 1233, 1239 (9th
Cir. 2016) (quoting Clark v. Murphy, 331 F.3d 1062, 1069
(9th Cir. 2003)).13
AFFIRMED.

THOMAS, Chief Judge, concurring:
Given the standard of review required by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), I concur in the majority opinion. Because the
state of the law concerning pre-interrogation assertion of
Miranda rights is not “clearly established,” the state court
decision in this case was not “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. The Supreme Court has “never held that
a person can invoke his Miranda rights anticipatorily, in a

13

Of course, neither McDonald nor Caetano would aid Robertson
even had they been issued before the Appellate Division’s decision in
2009, as neither case addressed the constitutional right to possess a billy
club. See McDonald, 561 U.S. at 750; Caetano, 136 S. Ct. at 1027.

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context other than ‘custodial interrogation.’” McNeil v.
Wisconsin, 501 U.S. 171, 182 n.3 (1991). And a suspect’s
“refusal to take a [lawfully-requested] blood-alcohol test” is
neither a coerced act, nor is it “protected by the privilege
against self-incrimination.” South Dakota v. Neville,
459 U.S. 553, 564 (1983).
However, if this appeal were on direct review, one might
reach a different conclusion. The defendant anticipatorily
asserted his Miranda rights while in custody in connection
with the police request that he submit to a blood alcohol test.
Nevertheless, the police continued the questioning and, at
some point, provided a Miranda warning. This situation,
under Supreme Court jurisprudence, would present a
legitimate Miranda/Edwards issue on direct review. See
Missouri v. Seibert, 542 U.S. 600, 613–14 (2004) (“[W]hen
Miranda warnings are inserted in the midst of coordinated
and continuing interrogation, they are likely to mislead and
deprive a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of
abandoning them.”) (quoting Moran v. Burbine, 475 U.S.
412, 424 (1986)) (alterations omitted); Montejo v. Louisiana,
556 U.S. 778, 794–95 (2009) (explaining that once a
defendant has invoked his right to counsel, “not only must the
immediate contact end, but ‘badgering’ by later requests is
prohibited”) (citing Miranda v. Arizona, 384 U.S. 436 (1966);
Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v.
Mississippi, 498 U.S. 146 (1990)). But that question is for
another day, and it is unnecessary for us to opine on that
question here. On AEDPA review, I agree that the district
court should be affirmed, and I concur in the majority
opinion.