                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ADAM LEE LOPEZ,                                  No.     15-56068

              Petitioner-Appellant,              D.C. No.
                                                 5:13-cv-01196-DOC-MAN
 v.

JANDA,                                           MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                             Submitted July 13, 2018**
                               Pasadena, California

Before: IKUTA and N.R. SMITH, Circuit Judges, and MCNAMEE,*** Senior
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
      Petitioner Adam Lopez appeals the district court’s denial of his habeas

corpus petition. Lopez was convicted of attempted murder of a law enforcement

officer. However, he contends that he is entitled to habeas relief, because the state

court unreasonably applied Miranda v. Arizona, 384 U.S. 436 (1966). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

      “We review de novo the district court’s decision to grant or deny a petition

for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004). “Because [Lopez] filed his federal habeas petition after April 24, 1996, his

petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987, 993 (9th

Cir. 2010). Under AEDPA, we must deny habeas relief with respect to any claim

adjudicated on the merits in a state court proceeding unless the proceeding “(1)

resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d).

      “[A] suspect subject to custodial interrogation has the right to consult with

an attorney and to have counsel present during questioning.” Davis v. United


      1
          Lopez’s renewed motion to file a late reply brief, Dkt. 62, is DENIED.
                                           2
States, 512 U.S. 452, 457 (1994). “[I]f a suspect requests counsel at any time

during the interview, he is not subject to further questioning until a lawyer has

been made available or the suspect himself reinitiates conversation.” Id. at 458.

“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.” Id. at 459 (quotation marks and citation omitted). “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, [Supreme Court] precedents do

not require the cessation of questioning.”2 Id.

       Lopez argues that the state court unreasonably applied this precedent when

it determined that he did not unambiguously request counsel. However, our court



      2
         In Sessoms v. Runnels, the en banc panel initially determined that the
“unambiguous invocation” rule in Davis applied “only after a suspect has been
informed of his Miranda rights.” 691 F.3d 1054, 1062 (9th Cir. 2012), cert.
granted, judgment vacated sub nom. Grounds v. Sessoms, 570 U.S. 928 (2013).
The Supreme Court granted certiorari, vacated, and remanded in light of Salinas v.
Texas, 570 U.S. 178, 186-87 (2013) (holding that in order to benefit from the Fifth
Amendment right to remain silent, a suspect must expressly invoke the
constitutional privilege). Based on Salinas, the en banc panel in Sessoms
“assum[ed] that the clear invocation requirement of Davis applie[d] to” pre-
Miranda warning cases. Sessoms v. Grounds, 776 F.3d 615, 621 (9th Cir. 2015)
(en banc). Thus, the state court did not err in applying the unambiguous invocation
rule in a pre-Miranda waiver (but post-Miranda warning) context.
                                           3
has already rejected a similar argument under similar circumstances, namely, in

determining on habeas review whether a state court’s decision on whether a

defendant had made an unambiguous request for counsel was an unreasonable

application of Supreme Court precedent. In Clark v. Murphy, 331 F.3d 1062, 1065

(9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63,

71 (2003), the suspect stated “I think I would like to talk to a lawyer.” The panel

determined that it was not unreasonable for the state court to conclude that the

inclusion of the phrase “I think” made the suspect’s statement ambiguous. Id. at

1071-72. “While only the Supreme Court’s precedents are binding on the [state]

court, and only those precedents need be reasonably applied, we may look for

guidance to circuit precedents.” Id. at 1070. There is very little daylight between

the suspect’s statement in Clark and Lopez’s statement to Detective Porter. Instead

of saying “I think I would like to talk to a lawyer,” Lopez said “I guess I’ll wait

until an attorney’s present or something.” A principled and articulable difference

between the phrases “I think” and “I guess” escapes us. Further, Lopez added the

qualifier “or something” to the end of his statement. What that “something” would

have been is unclear, but that unclarity lends additional support to the state court’s

determination that Lopez’s statement was ambiguous. Perhaps Lopez is right; he

may have been trying to invoke his right to counsel in a very deferential manner.


                                           4
Unfortunately for Lopez, it is not his intent that matters; it is whether his statement

would have been unambiguous to a reasonable officer. Davis, 512 U.S. at 459.

Thus, guided by Clark, the state court’s determination that Lopez’s statement

contained ambiguity was not an unreasonable application of any Supreme Court

precedent.

      Lopez argues that the statements made by Detective Porter amounted to

coercion, but the Supreme Court has made clear that even a lengthy interrogation

(by itself) is not coercive. Berghuis v. Thompkins, 560 U.S. 370, 386-87 (2010).

Something more is required. For example, it is not coercive when a suspect is

placed in a straight-backed chair and repeatedly questioned for three hours before

eventually answering the interrogators questions. Id. Rather, “facts indicating

coercion [include] an incapacitated and sedated suspect, sleep and food

deprivation, and threats.” Id. at 387. Here, Detective Porter’s statements do not rise

to the level of “coercion.” Detective Porter made no threat and repeatedly reminded

Lopez that he had “the absolute right” to not answer his questions. ER 116-18. We

likewise reject Lopez’s argument that Detective Porter cajoled him into waiving

his rights. Although Detective Porter’s statements encouraged Lopez to answer his

questions, the state court did not unreasonably apply Supreme Court precedent in




                                           5
determining that Detective Porter’s statements did not rise to the level of coercion

or cajoling.

      AFFIRMED.




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