                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


  JESSIE RODRIGUEZ,                             No. 12-56594
          Petitioner-Appellant,
                                                D.C. No.
                  v.                     2:10-cv-08842-JAK-JPR

  MIKE MCDONALD, Warden,
       Respondent-Appellee.                       OPINION


        Appeal from the United States District Court
           for the Central District of California
        John A. Kronstadt, District Judge, Presiding

              Argued and Submitted May 9, 2017
                    Pasadena, California

                   Filed September 29, 2017

   Before: Harry Pregerson and Michelle T. Friedland,
   Circuit Judges, and Robert S. Lasnik, * District Judge.

                    Opinion by Judge Lasnik




    *
      The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2                  RODRIGUEZ V. MCDONALD

                          SUMMARY **


                         Habeas Corpus

    The panel reversed the district court’s judgment denying
Jessie Rodriguez’s habeas corpus petition challenging his
conviction for second-degree murder and attempted murder,
and remanded, in a case in which Rodriguez, who was
fourteen years old at the time detectives interviewed and
arrested him, argued that his written confession was obtained
in violation of Miranda v. Arizona.

    After reviewing the record available to the state courts,
including a videotape of the interview and transcript of that
videotape, the panel held that the California Court of
Appeal’s determination that the detectives honored
Rodriguez’s invocation of his right to counsel was
unreasonable. Having concluded that the state court’s
decision was based on an unreasonable determination of
facts, the panel reviewed the legal issues de novo, and held
that the government failed to meet its heavy burden of
showing that Rodriguez’s subsequent waiver of his right to
counsel was knowing, intelligent, and voluntary. The panel
held that the admission of Rodriguez’s confession was not
harmless, and that Rodriguez is therefore entitled to habeas
relief.




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

                          COUNSEL

Tony Faryar Farmani (argued), Farmani APLC, Rancho
Santa Fe, California, for Petitioner-Appellant.

Ryan M. Smith (argued), Deputy Attorney General; Kenneth
C. Byrne, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.


                           OPINION

LASNIK, District Judge:

   When Jessie Rodriguez was fourteen years old, a
California jury found him guilty of second-degree murder
and attempted murder. Because the government relied on a
coerced waiver of the right to counsel to secure this
conviction, we grant Mr. Rodriguez’s request for relief under
28 U.S.C. § 2254.

                       I. BACKGROUND

    On the evening of February 23, 2005, while Manuel
Penaloza and Cynthia Portillo were walking near Gabanzo
Park in Los Angeles, a brown minivan slowed and
approached them. 1 Mr. Penaloza saw two men in the van,
the driver and a passenger. The passenger asked the couple,

    1
      The California Court of Appeal referred to a Gabanzo Park. We
are not aware of any such park in the Los Angeles area. There is,
however, a Garvanza Park near where the shooting occurred.
4               RODRIGUEZ V. MCDONALD

“Where are you from?” Mr. Penaloza understood this
question as a gang challenge – a demand to know what gang
Mr. Penaloza was affiliated with. He truthfully replied that
he was from the Drifters gang. Instantly, shots were fired
from inside the van. Mr. Penaloza was wounded in the
shoulder, and Ms. Portillo was shot in the head. Mr.
Penaloza panicked and fled. Ms. Portillo did not survive.
People v. Rodriguez, No. B194159, 2007 WL 4465197, at
*1 (Cal. App. Dep’t Super. Ct. Dec. 21, 2007). Roughly two
hours later, Officer Carlos Langarica of the Los Angeles
Police Department saw a brown van driving in Highland
Park. By that time, he had received reports of the Gabanzo
Park drive-by shooting and another such shooting that night.
Because the van matched the description of the shooter’s
vehicle, Officer Langarica stopped the van. Id. at *2.

    Angel Gomez was the van’s driver; Richard Powell was
the passenger. Two fully loaded handguns were recovered
from the van, a .22 caliber revolver and a .25 caliber semi-
automatic. Ammunition for those weapons was also
recovered, along with an expended cartridge case and a
leather glove. A live bullet was found in Mr. Powell’s
pocket. Id.

     Detective Luis Rivera interviewed Mr. Gomez and Mr.
Powell. Mr. Gomez and Mr. Powell implicated a person
named “Husky” in the shooting.             Detective Rivera
determined that “Husky” was the gang moniker of Jessie
Rodriguez. He obtained a photograph of Mr. Rodriguez and
placed it in a six-pack photographic lineup, which he showed
to the shooting victim Mr. Penaloza. Mr. Penaloza was very
uncooperative. He pointed to two photographs – including
Mr. Rodriguez’s photograph – and said, “One of those two
is the person who shot me. There. Now you know.” Id.
                  RODRIGUEZ V. MCDONALD                     5

    Over a month later, on the morning of March 28, 2005,
Detective Rivera and his partner, Detective Jose Carrillo,
arrested Mr. Rodriguez at the juvenile probation camp where
he was then living and brought him to the local police station
for an interview. Id. At the time of his arrest and interview,
Mr. Rodriguez was fourteen years old. He had completed
ninth grade.

    This interview was videotaped and transcribed. The
following exchanges are excerpted from that transcript.

   Before the officers delivered Miranda warnings to Mr.
Rodriguez, they questioned him about his name, address,
family, schooling, and juvenile record. They also asked
whether he had any nicknames or tattoos:

       Officer:        And you’re from Highland
                       Park?

       Rodriguez:      Yeah.

       Officer:        And what do they call you?

       Rodriguez:      Chubs.

       Officer:        Chubs, C-H-U-B-S. Anything
                       else?

       Rodriguez:      No.

       Officer:        You don’t have any other lead
                       names? That’s the only lead
                       name you have?

       Rodriguez:      Yeah.
6              RODRIGUEZ V. MCDONALD

    Officer:       Cause I’m looking at your
                   sheet here and it shows that
                   you have a lot of nicknames.

    Rodriguez:     [Inaudible]

    Officer:       What other names do they say
                   that they call you?

    Rodriguez:     Just Chubs.

    Officer:       I know, but what other names
                   do you know that they call
                   you?

    Rodriguez:     Just that, Chubs.

    Officer:       Don’t they call you Husky?

    Rodriguez:     No.

    Officer:       That’s on your rap sheet.

    Rodriguez:     I know, cause that’s like a
                   long time ago [inaudible].

    [....]

    Officer:       Do you have any tattoos?

    Rodriguez:     Yeah, on my arm.

    Officer:       Let me see what you have.
                   HIP. That’s fairly new.
           RODRIGUEZ V. MCDONALD              7

Officer:       Who did it?

Rodriguez:     My friend.

Officer:       Huh?

Rodriguez:     My friend.

Officer:       What’s your friend’s name?

Rodriguez:     Victor.

Officer:       Victor what?

Rodriguez:     Victor Rigosa or something
               like that.

Officer:       Victor Rigosa.

Rodriguez:     Yeah, something like that.

Officer:       Is he in HIP too?

Rodriguez:     No.

Officer:       [Inaudible] What else do you
               got?

Rodriguez:     That’s it.

Officer:       Let me se [sic] your upper
               arm? How about your other
               arm? Do you have anything
               on your other arm?
8              RODRIGUEZ V. MCDONALD

    Rodriguez:     No.

    Officer:       That tattoos [sic] about what,
                   three, four weeks old?

    Rodriguez:     No.

    Officer:       Yeah.

    Rodriguez:     Three months ago.

    Officer:       Three months ago, no, that’s
                   more than that that’s –

    Officer:       Let me see that again?

    Rodriguez:     [Inaudible]

    Officer:       [Inaudible]

    Officer:       [Inaudible]

    Rodriguez:     [Inaudible]

    Officer:       That is not.

    Officer:       They did a lousy job. Was he
                   high? Was he drunk or what?
                   How long till they finish it.

    Rodriguez:     It is finished.

    Officer:       That’s finished?

    Rodriguez:     Yeah.
                  RODRIGUEZ V. MCDONALD                 9

       Officer:       [Inaudible]

       Rodriguez:     [Inaudible]

       Officer:       Don’t tell me you paid for that
                      man?

       Rodriguez:     No.

       Officer:       Man, that tattoo couldn’t be
                      no more than a month.

       Officer:       That’s his first tattoo.

       Rodriguez:     You don’t believe me?

       Officer:       You got it. I’ve seen – I’ve
                      seen a lot of tattoos over the
                      years.

       Rodriguez:     [Inaudible] I got it in early
                      December somewhere like
                      that.

   After briefly asking Mr. Rodriguez whether he ever wore
a mustache or a goatee, the officers delivered Miranda
warnings as follows:

       Officer:       Jessie, we want to talk to you
                      but because you belong to the
                      camp okay, [there are] certain
                      procedures that the camp and
                      the juvenile courts feels that
                      we must do. Now, because
                      we want to talk to you about
10              RODRIGUEZ V. MCDONALD

                    certain incidents, I have to
                    advise you [of] your rights.
                    You’ve heard these before,
                    right? Okay.

     Rodriguez:     Uh-huh.

     Officer:       Okay. You know what, I have
                    to read them to you anyway
                    regardless of whether you
                    know them or not. You have
                    the right to remain silent, do
                    you understand?

     Rodriguez:     Yes.

     Officer:       Anything you say can be used
                    against you in a court, do you
                    understand?

     Rodriguez:     Yes.

     Officer:       You have the right of the
                    presence of an attorney before
                    and during any questioning,
                    do you understand?

     Rodriguez:     Yes.

     Officer:       If you cannot afford an
                    attorney one will be appointed
                    for you free of charge before
                    any questioning, if you want,
                    do you understand?
                  RODRIGUEZ V. MCDONALD                 11

       Rodriguez:     Yes.

       Officer:       Okay.

    The officers then questioned Mr. Rodriguez about his
involvement in the drive-by shooting.         The officers
repeatedly suggested that Mr. Rodriguez had been riding in
the van with Angel Gomez, and that Mr. Gomez had
pressured him to shoot Mr. Penaloza to prove his loyalty to
the Highland Park gang. Mr. Rodriguez repeatedly denied
being in the van during the shooting. In response, the
officers repeatedly accused Mr. Rodriguez of lying and told
him that others had already implicated him in the shooting.
They showed Mr. Rodriguez pictures of Angel Gomez and
Richard Powell, and told him that they knew the two men
went by “Vamps” and “Away,” respectively. They told Mr.
Rodriguez that Mr. Penaloza had claimed that he saw both
“Away” and Mr. Rodriguez at the scene of the crime, and
that “Away” had already told the officers what happened.

   Eventually, Mr. Rodriguez asked for an attorney:

       Rodriguez:     Can I speak to an attorney?

       Officer:       Whatever you want.

       Rodriguez:     Can I speak to an attorney?

       Officer:       You tell me what you want.

       Rodriguez:     That is what I want.

       Officer:       That’s fine bro we stop
                      because we can’t talk to you
                      anymore, okay, so.
12              RODRIGUEZ V. MCDONALD

     Officer:       You’re going to be charged
                    with murder today.

     Rodriguez:     Why?

     Officer:       Why?

     Officer:       We already told you why,
                    man, we’ve already told you
                    why. Remember when we
                    came in we told you we were
                    investigating. This is what’s
                    been said about you. We
                    asked you to tell us the truth;
                    you were going to tell us what
                    happened? That’s what we
                    meant tell us what’s – tell us
                    what’s going on, so we can
                    put – so we can put your story
                    on paper. That is the reason
                    we’re asking you this. If you
                    want to talk to an attorney you
                    can talk to an attorney. To us
                    we’re just doing our job.

     Officer:       If you don’t want to talk to us
                    just tell us you don’t want to
                    talk to us if you don’t, that’s
                    it.

     Officer:       Yeah. I mean, you know, it’s
                    nothing personal here, bro,
                    we’re just doing our job, man,
                    that’s all, okay. Like I said,
                    you tell me now that’s exactly
           RODRIGUEZ V. MCDONALD                  13

               what I’m gone put on paper
               that’s exactly what I can do
               for you, man, that’s it – that’s
               it. We can go on to other
               cases and other things. We’ll
               just see you in court. I just
               want you to remember that I
               tried to give you the
               opportunity. I tried to give
               you the opportunity to
               straighten things out.

Officer:       Do you know Easy from
               Highland Park? You don’t
               know him?

Rodriguez:     No.

Officer:       You don’t know him? This
               one here?      [Shows Mr.
               Rodriguez a photograph] You
               don’t know him?

Rodriguez:     No.

Officer:       The girl that died, that’s his
               girlfriend.

Officer:       [Inaudible]

Officer:       Yeah, I guess we can. I got to
               take him downtown and
               process him.
14              RODRIGUEZ V. MCDONALD

     Rodriguez:     You’re not going to charge
                    me?

     Officer:       You[’re] going to East Lake.

     Rodriguez:     What am I going to East Lake
                    for?

     Officer:       Cause they’re going to charge
                    you with murder.

     Officer:       When you get charged with a
                    crime, they take you to East
                    Lake it’s up to East Lake to
                    send you [back up] here, man,
                    okay. Like I said, I ain’t got
                    nothing personal here my bro,
                    you know [Inaudible].

     Officer:       [Inaudible] take him down
                    and fingerprint him and all
                    that.

     Rodriguez:     Can I get my [inaudible] the
                    one I was wearing [inaudible].

     Officer:       We’re going to keep it. We’re
                    going to keep those.

     Officer:       You’ll get them back later.

     Rodriguez:     All right.

     Officer:       You want some water?
                RODRIGUEZ V. MCDONALD                     15

       Rodriguez:     Yeah.

The recording concludes at that point.

    The California Court of Appeal summarized the rest of
the proceedings as follows:

       [Mr. Rodriguez] was transported to the
       central station for fingerprinting and
       photographing. He was then returned to the
       local station, while the detectives completed
       their reports. After doing so, they took [Mr.
       Rodriguez] to a juvenile facility.

       Shortly after their arrival, while in the intake
       area of the juvenile facility, [Mr. Rodriguez]
       asked Detective Rivera, “what’s going to
       happen?” The detective replied that the case
       was going to be presented to the prosecutor’s
       office. [Mr. Rodriguez] then requested the
       detective’s business card, explaining that he
       might want “to talk” to the detective. In
       response, Detective Rivera explained that
       because [Mr. Rodriguez] had invoked his
       right to counsel, the detective could not speak
       to him until [Mr. Rodriguez] had spoken to
       an attorney, unless [Mr. Rodriguez] “changed
       his mind” about exercising his right to
       counsel. [Mr. Rodriguez] replied that he
       wanted to talk to the detective. Detective
       Rivera requested an interview room and a
       tape recorder, but no such device was
       available. Once inside the interview room,
       [Mr. Rodriguez] narrated what happened
       during the shooting incident.           At the
16               RODRIGUEZ V. MCDONALD

       detective’s request, [Mr. Rodriguez] wrote
       his own statement, which was admitted in
       evidence.

2007 WL 4465197, at *2–3. In that statement, Mr.
Rodriguez confessed to shooting Mr. Penaloza at the urging
of Mr. Gomez.

    In January 2006, on the government’s motion, the
Juvenile Division of the Los Angeles County Superior Court
held a fitness hearing to determine whether Mr. Rodriguez
was “a fit or proper subject to be dealt with under juvenile
court law” or whether he should be tried as an adult. At that
hearing, the court reviewed a May 2005 report from a
psychologist who had interviewed Mr. Rodriguez and
concluded that he had “border-line intelligence functioning,”
which rendered him particularly “susceptible to the
influence of others.” The psychologist reported that Mr.
Rodriguez had an I.Q. of seventy-seven, meaning that he was
“quite limited intellectually,” and that he tested at a fourth-
or fifth-grade academic level though he had completed ninth
grade. The report predicted that this intellectual limitation
“will prevent him from making good decisions as he is likely
to be more concrete than abstract in his problem solving
capacity.”

    The report further noted that Mr. Rodriguez exhibited
“symptoms related to [Attention Deficit Hyperactivity
Disorder]” and that he had been “placed on medication . . .
to help him concentrate” while residing at the juvenile camp.
According to the report, “[t]he literature shows that
individuals who suffer from the disorder tend to not do well
with respect to making good decisions.” At the end of the
hearing, the court concluded that Mr. Rodriguez was not fit
                 RODRIGUEZ V. MCDONALD                     17

for adjudication in juvenile court and referred the matter for
prosecution under the general law.

    In April 2006, Mr. Rodriguez was charged by
information in Los Angeles County Superior Court. The
information charged Mr. Rodriguez with the murder of Ms.
Portillo (in violation of Cal. Penal Code § 187(a)) and with
the attempted murder of Mr. Penaloza (in violation of Cal.
Penal Code §§ 664/187(a)). As to both counts, the
information charged Mr. Rodriguez with causing great
bodily injury or death by intentionally discharging a firearm
(under Cal. Penal Code § 12022.53(d)), and with acting for
the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote
criminal conduct by gang members (under Cal. Penal Code
§ 186.22(b)(1)(C)).

    Mr. Rodriguez’s jury trial took place in early September
2006. On September 7, 2006, the court held a hearing on
Mr. Rodriguez’s motion to suppress his confession on the
grounds that it was obtained in violation of Miranda v.
Arizona, 384 U.S. 436 (1966), and the due process clause.
The transcript of the videotaped police interview was
admitted into evidence. Both parties agreed that Mr.
Rodriguez had invoked his right to counsel by asking twice,
“Can I speak to an attorney?”

     The parties’ accounts of what followed, however,
differed. Detective Rivera testified that he and Detective
Carrillo had ceased their interrogation once Mr. Rodriguez
invoked his right to counsel, and that Mr. Rodriguez had
initiated the second interview by asking for a business card
at the juvenile detention center. Mr. Rodriguez testified that
the detectives had continued to discuss the case with him
after he requested a lawyer; that they pressured him to give
a statement by promising to keep his case in juvenile court if
18              RODRIGUEZ V. MCDONALD

he cooperated; that Detective Rivera handed him the
business card and invited him to talk; and that the detectives
told him what to say in his eventual written confession.

   From the bench, the court denied Mr. Rodriguez’s
motion to suppress:

       I am going to deny the motion. . . . The
       defendant did invoke his right to an attorney
       and the detectives honored that. I agree with
       the prosecution. This is a credibility situation
       that is presented to the court. Who do I
       believe?

       Well, do I believe the detective or do I believe
       Mr. Rodriguez on some of these critical
       points? And frankly, I found Mr. Rodriguez
       to be less than credible on many things,
       including how he came to make certain
       statements in the written document that has
       been marked as People’s 1. And the fact that
       he made statements that are difficult for the
       court to accept regarding what was said in
       that document I think colors all of his
       testimony.

       I found the detective’s testimony to be
       believable. It would have been better had
       there been a tape recording of the reinitiation
       of the interrogation. But the case law is
       settled that statements volunteered not in
       response to an interrogation are admissible
       against the defendant even after the initial
       assertion of the right to remain silent. I think
       that’s what we have here.
                RODRIGUEZ V. MCDONALD                      19

       And, frankly, I think the evidence is very
       persuasive that the defendant initiated the
       discussion of the case after invoking his
       rights at the Eastlake facility. And proceeded
       then to sit down and write out what is – I
       agree with you, [defense counsel] – this is a
       confession. And I do not find credibility to
       the statement that the detectives told him to
       write certain portions of this.

       It’s just not very believable in the way the
       evidence was presented by the defendant
       today. And particularly since there are some
       statements in here about how he shot at the
       direction of others and the other things that
       are here, that Angel told me shoot him, shoot
       him, certainly rings true based on what little
       the court knows about the case.

       In any event, I feel that the evidence is more
       than persuasive that the defendant’s
       constitutional rights were not violated. And
       the statement will be admitted.

    At trial, the government played the videotape of the
detectives’ first interview with Mr. Rodriguez, including the
portions preceding the Miranda warnings, and gave the jury
a partially redacted transcript of the video to aid their
understanding. In opening and closing, the government
relied both on Mr. Rodriguez’s videotaped interview and on
Mr. Rodriguez’s written statement as evidence of his guilt.
The government emphasized Mr. Rodriguez’s tattoo and
argued that he had received it in late February 2005 – just as
the detectives had suggested during the interview – as a
badge after proving his loyalty to the gang by shooting Mr.
20               RODRIGUEZ V. MCDONALD

Penaloza and Ms. Portillo. The government presented no
physical evidence linking Mr. Rodriguez to the shooting.

    On September 13, 2006, during their deliberations, the
jury sent out the following note:

       “Imaginary doubt” is not reasonable doubt, as
       per the instructions. A concern has been
       raised over the credibility of the confession
       and whether the defendant may have felt
       pressured, not necessarily by the detectives,
       but by his situation to confess to a crime that
       he did not commit. However, there has been
       no evidence submitted to substantiate this
       conjecture. Is this concern or suspicion
       “imaginary doubt.”? If you cannot answer
       this question, then what is the legal definition
       of “imaginary doubt”?

In response to this question, the court re-read its instructions
on presumption of innocence, reasonable doubt, and what
constitutes evidence. The jury also asked the court about its
instruction providing that the defendant may not be
convicted based on his out-of-court statements alone. The
court re-read that instruction and explained that “That
language goes to whether or not there was a crime. That is
up to the jury to decide if there was evidence in the case
separate and apart from the defendant’s statement that a
crime, and in this case – the two charged crimes are murder
and attempted murder – if a murder and attempted murder
were committed.”

   Later that day, the jury returned its verdict, finding Mr.
Rodriguez guilty of second-degree murder and attempted
murder. The jury further found that, as to both offenses, Mr.
Rodriguez had intentionally discharged a firearm, causing
                 RODRIGUEZ V. MCDONALD                      21

great bodily injury or death, and had acted for the benefit of
a criminal street gang. On September 26, 2006, Mr.
Rodriguez was sentenced to eighty-four years to life in
prison.

    Mr. Rodriguez timely appealed, arguing that his written
confession had been erroneously admitted in violation of
Miranda. On December 21, 2007, the California Court of
Appeal affirmed Mr. Rodriguez’s conviction. 2007 WL
4465197, at *10. The Supreme Court of California granted,
then summarily dismissed, Mr. Rodriguez’s petition for
direct review.       Mr. Rodriguez unsuccessfully sought
collateral relief in state court.

    On November 17, 2010, Mr. Rodriguez filed a petition
under 28 U.S.C. § 2254 in the U.S. District Court for the
Central District of California.         On the report and
recommendation of the magistrate judge, the district court
denied that petition and denied a certificate of appealability.
Mr. Rodriguez timely appealed, and on September 5, 2013,
this court granted a certificate of appealability as to the
question whether Mr. Rodriguez’s confession was obtained
in violation of Miranda or the due process clause.

        II. JURISDICTION AND STANDARD OF
                    REVIEW

    We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s decision to deny a petition
for habeas relief under 28 U.S.C. § 2254. Arredondo v.
Ortiz, 365 F.3d 778, 781 (9th Cir. 2004). Because Mr.
Rodriguez’s petition was filed after 1996, the amendments
to Section 2254 under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) apply. Id.
22              RODRIGUEZ V. MCDONALD

    Under AEDPA, this court may not grant habeas relief to
a state prisoner on the basis of claims previously adjudicated
on the merits in state-court proceedings unless the last
reasoned decision from the state court system – here, the
decision of the California Court of Appeal – either (1) “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) “was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Harrington v. Richter, 562 U.S. 86, 97–98 (2011) (quoting
28 U.S.C. § 2254(d)).

    “A state court’s factual findings are unreasonable if
‘reasonable minds reviewing the record’ could not agree
with them.” Ayala v. Chappell, 829 F.3d 1081, 1094 (9th
Cir. 2016) (quoting Brumfield v. Cain, 135 S. Ct. 2269, 2277
(2015)). If, considering only the record before the state
court, we determine that the state court’s decision was based
on an unreasonable determination of the facts, we next
evaluate the petitioner’s legal claim de novo, and we may
consider evidence presented for the first time in federal
court. See Crittenden v. Chappell, 804 F.3d 998, 1010–11
(9th Cir. 2015) (quoting Hurles v. Ryan, 752 F.3d 768, 778
(9th Cir. 2014)). Still, even then, the state court’s factual
findings are entitled to a presumption of correctness that can
be overcome only by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1); Crittenden, 804 F.3d at 1011.

                      III. DISCUSSION

    Mr. Rodriguez argues – as he has since September 2006
– that his written confession was obtained in violation of
Miranda. We agree. The California Court of Appeal
unreasonably determined that the detectives had honored
Mr. Rodriguez’s invocation of his right to counsel. In turn,
                 RODRIGUEZ V. MCDONALD                      23

the Court of Appeal erroneously concluded that Mr.
Rodriguez’s subsequent waiver of his right to counsel was
knowing, intelligent, and voluntary. There is a presumption
against waiver, and the government bears the burden of
proving that a supposed waiver was valid. Because the
government has not overcome that presumption, and because
we cannot conclude that the admission of Mr. Rodriguez’s
confession was harmless, Mr. Rodriguez is entitled to habeas
relief.

A. Unreasonable Determination of the Facts

    On habeas review, the state court’s factual findings are
entitled to a presumption of correctness, and may not be
overturned unless rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke,
545 U.S. 231, 240 (2005); Doody v. Ryan, 649 F.3d 986,
1002 (9th Cir. 2011) (en banc). Moreover, we cannot find
that the state court made an unreasonable determination of
the facts unless we are “convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record” before the state court. Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004).

    Mr. Rodriguez argues that the state courts erroneously
credited Detective Rivera’s account of Mr. Rodriguez’s
detention and interrogations over Mr. Rodriguez’s, and
attaches to his federal habeas petition a declaration
summarizing his version of events in more detail. Because
this court’s review of the state court’s factual determinations
under Section 2254(d)(2) is limited to the evidence presented
in the state court proceeding, Mr. Rodriguez has not shown
by clear and convincing evidence that the state courts’
credibility determinations were unreasonable. Accordingly,
this court is bound for the most part by the factual findings
24                RODRIGUEZ V. MCDONALD

of the California Court of Appeal and the Los Angeles
County Superior Court, as those findings are based on those
credibility determinations and in turn on Detective Rivera’s
account of the events in question.

    The court may make an exception, however, for the
portion of the detention memorialized by the videotape and
transcript. See Doody, 649 F.3d at 1009 (“The audiotapes of
Doody’s interrogation are dispositive in this case, as we are
not consigned to an evaluation of a cold record, or limited to
reliance on the detectives’ testimony.”); Juan H. v. Allen,
408 F.3d 1262, 1271 (9th Cir. 2005) (“[B]ecause we have a
videotape of the challenged interrogation, there is no
mystery about any communications that related to
Miranda’s requirements.”). That videotape and transcript
rebut by clear and convincing evidence the state courts’
factual determination that the detectives honored Mr.
Rodriguez’s invocation of his right to counsel – a factual
determination that, on the record before the state trial court,
was unreasonable.

    In this case, it is undisputed that Mr. Rodriguez invoked
his right to counsel. Instead of immediately ceasing their
interrogation, however, the detectives told Mr. Rodriguez
that he was “going to be charged with murder today,” and to
“remember that [they] tried to give [Mr. Rodriguez] the
opportunity . . . to straighten things out.” One of the
detectives then explicitly asked Mr. Rodriguez about the
case:

       Officer:        Do you know Easy from
                       Highland Park? You don’t
                       know him?

       Rodriguez:      No.
                  RODRIGUEZ V. MCDONALD                    25

       Officer:        You don’t know him? This
                       one here? You don’t know
                       him?

       Rodriguez:      No.

       Officer:        The girl that died, that’s his
                       girlfriend.

This “express questioning” was clearly custodial
interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300–
02 (1980) (defining interrogation as either “express
questioning” or “words or actions on the part of police
officers that they should have known were reasonably likely
to elicit an incriminating response”); id. at 302 n.8 (“Any
knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of
persuasion might be an important factor in determining
whether the police should have known that their words or
actions were reasonably likely to elicit an incriminating
response from the suspect.”). The detectives did not honor
Mr. Rodriguez’s invocation of his right to counsel.

     The state trial court, however, simply characterized this
exchange as: “The defendant did invoke his right to an
attorney and the detectives honored that.” Effectively, the
trial court appeared to credit Detective Rivera’s suppression
hearing testimony that he “cease[d the] interrogation” after
Mr. Rodriguez invoked, over Mr. Rodriguez’s testimony
that the detectives “continue[d] to talk to [him],” without
regard to the transcript of the interview, which was in
evidence during the suppression hearing. On direct appeal,
rather than reversing this finding as unsupported by the
evidence, the California Court of Appeal “defer[red] to [the
trial court’s] findings that the detectives ceased questioning
26               RODRIGUEZ V. MCDONALD

upon defendant’s invocation in the first interview” and
concluded that the detectives “honored defendant’s
invocation” and “stopped the interview.”

    The videotape and transcript of Mr. Rodriguez’s
interview constitute clear and convincing evidence sufficient
to rebut the state courts’ factual finding that the detectives
honored Mr. Rodriguez’s invocation of his right to counsel
by immediately ceasing their interrogation. See 28 U.S.C.
§ 2254(e)(1). After reviewing the record available to the
state courts, including the videotape of the interrogation and
the transcript of that videotape, no appellate panel could
reasonably conclude otherwise. See Taylor, 366 F.3d at
1000. Accordingly, 28 U.S.C. § 2254(d)(2)’s bar is
overcome.

B. De Novo Review of Mr. Rodriguez’s Miranda Claim

    Once we have concluded that the state court’s decision
was based on an unreasonable determination of facts under
28 U.S.C. § 2254(d)(2), we review the legal issues de novo.
See Hurles, 752 F.3d at 778. Doing so, we conclude that Mr.
Rodriguez did not validly waive his previously invoked right
to counsel.

    In Miranda v. Arizona, 384 U.S. 436 (1966), the
Supreme Court held that the Fifth and Fourteenth
Amendments’ prohibition against compelled self-
incrimination requires that an accused be informed of his
right to have counsel present during custodial interrogation.
Id. at 471. If the suspect states that he wants an attorney, the
interrogation must cease until an attorney is present. Id. at
474. “If the interrogation continues without the presence of
an attorney and a statement is taken, a heavy burden rests on
the government to demonstrate that the defendant knowingly
and intelligently waived his privilege against self-
                 RODRIGUEZ V. MCDONALD                      27

incrimination and his right to retained or appointed counsel.”
Id. at 475.

    In Edwards v. Arizona, 451 U.S. 477 (1981), the
Supreme Court further specified that once an accused has
invoked his right to counsel, he may not be subject to further
interrogation 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.
This rule is “designed to prevent police from badgering a
defendant into waiving his previously asserted Miranda
rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990).

    Edwards also established that “when an accused has
invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further
police-initiated custodial interrogation even if he has been
advised of his rights.” 451 U.S. at 484. That is, a finding
that a post-invocation admission is voluntary is not sufficient
to demonstrate waiver. Id. at 483–84. Rather, for an
uncounseled post-invocation statement to be admissible, the
court must also find that the suspect first waived his right to
counsel knowingly, intelligently, and voluntarily. Id. at
482–84. “A valid waiver of counsel rights should not be
inferred from the mere response by the accused to overt or
more subtle forms of interrogation or other efforts to elicit
incriminating information.” Id. at 484 n.8.

    In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the
Supreme Court reiterated this latter Edwards rule: “even if
a [post-invocation] conversation . . . is initiated by the
accused, where reinterrogation follows, the burden remains
upon the prosecution to show that subsequent events
indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation.” Id. at 1044
28               RODRIGUEZ V. MCDONALD

(Rehnquist, J., plurality opinion). A plurality of the Supreme
Court criticized the Oregon Court of Appeals for erroneously
“thinking that an ‘initiation’ of a conversation or discussion
by an accused not only satisfied the Edwards rule, but ex
proprio vigore sufficed to show a waiver of the previously
asserted right to counsel. The inquiries are separate, and
clarity of application is not gained by melding them
together.” Id. at 1045 (Rehnquist, J., plurality opinion); see
also id. at 1048–49 (Powell, J., concurring) (recognizing that
eight justices agree that Edwards requires separate
consideration of (1) initiation, and (2) knowing, intelligent,
and voluntary waiver); Smith v. Illinois, 469 U.S. 91, 95
(1984) (per curiam) (recognizing two-step analysis of
initiation and waiver).

    Finally, in Arizona v. Roberson, 486 U.S. 675 (1988), the
Supreme Court cited Edwards for the proposition that “if a
suspect believes that he is not capable of undergoing such
questioning without advice of counsel, then it is presumed
that any subsequent waiver that has come at the authorities’
behest, and not at the suspect’s own instigation, is itself the
product of the ‘inherently compelling pressures’ [of
custodial interrogation] and not the purely voluntary choice
of the suspect.” Id. at 681 (emphasis added).

    Waiver of the right to counsel must be done knowingly,
intelligently, and voluntarily. Miranda, 384 U.S. at 475.
That is, it must be “voluntary in the sense that it was the
product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and it “must have been
made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
The validity of a waiver depends in each case “upon the
particular facts and circumstances surrounding [the] case,
                 RODRIGUEZ V. MCDONALD                      29

including the background, experience, and conduct of the
accused.” Edwards, 451 U.S. at 482 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). Where the suspect is a
minor, the analysis necessarily considers his “age,
experience, education, background, and intelligence, and . . .
whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and the
consequences of waiving those rights.” Fare v. Michael C.,
442 U.S. 707, 725 (1979). There is a presumption against
waiver, and the government bears the heavy burden of
showing that a waiver was valid. See North Carolina v.
Butler, 441 U.S. 369, 373 (1979); see also Berghuis v.
Thompkins, 560 U.S. 370, 384 (2010) (clarifying “that this
‘heavy burden’ is . . . the burden to establish waiver by a
preponderance of the evidence” (citing Colorado v.
Connelly, 479 U.S. 157, 168 (1986)).

    The government failed to meet that burden in its
prosecution of Mr. Rodriguez. The voluntariness of a
suspect’s waiver – like the voluntariness of a subsequent
confession – is assessed by examining both the police
methods used to produce the waiver and the individual
characteristics of the suspect to determine whether the
suspect’s will was overborne. See Collazo v. Estelle,
940 F.2d 411, 415–16 (9th Cir. 1991) (en banc); see also
Connelly, 479 U.S. at 520–21 (”[M]ental condition is surely
relevant to an individual’s susceptibility to police
coercion”).     We address Mr. Rodriguez’s individual
characteristics first.

    In the context of the requisite waiver analysis, Mr.
Rodriguez’s youth is impossible to ignore. Mr. Rodriguez
was fourteen years old at the time of his arrest and interview.
As the Supreme Court has repeatedly recognized, youth are
particularly susceptible to pressure from police. See, e.g.,
30               RODRIGUEZ V. MCDONALD

J.D.B. v. North Carolina, 564 U.S. 261, 272–73 (2011) (“[A]
reasonable child subjected to police questioning will
sometimes feel pressured to submit when a reasonable adult
would feel free to go”); Gallegos v. Colorado, 370 U.S. 49,
52–54 (1962) (stating that a juvenile “cannot be compared
with an adult in full possession of his senses and
knowledgeable of the consequences of his admissions” for
purposes of determining whether a confession was obtained
in violation of due process); Haley v. Ohio, 332 U.S. 596,
599–600 (1948) (plurality opinion) (“What transpired would
make us pause for careful inquiry if a mature man were
involved[, a]nd when, as here, a mere child—an easy victim
of the law—is before us, special care in scrutinizing the
record must be used”).

    In Haley, for example, the Supreme Court emphasized
that the voluntariness of a fifteen-year-old boy’s waiver and
confession “cannot be judged by the more exacting standards
of maturity. That which would leave a man cold and
unimpressed can overawe and overwhelm a lad in his early
teens.” 332 U.S. at 599. And in Gallegos v. Colorado,
370 U.S. 49 (1962), the Court recognized that “a 14-year-old
boy, no matter how sophisticated, is unlikely to have any
conception of what will confront him when he is made
accessible only to the police. . . . He cannot be compared
with an adult in full possession of his senses and
knowledgeable of the consequences of his admissions.” Id.
at 54. These cases instruct that the voluntariness of a child’s
confession or waiver cannot be properly assessed without
attention to his age. Cf. J.D.B., 564 U.S. at 265 (holding that
“a child’s age properly informs the Miranda custody
analysis”). In this case, Mr. Rodriguez’s youth rendered him
unusually vulnerable to police coercion.
                    RODRIGUEZ V. MCDONALD                            31

     At the time of his interrogation, Mr. Rodriguez was not
only young; he also had Attention Deficit Hyperactivity
Disorder and a “borderline” I.Q. of seventy-seven. An I.Q.
“between 70 and 75 or lower . . . is typically considered the
cutoff I.Q. score for the intellectual function prong of the
mental retardation definition.” Atkins v. Virginia, 536 U.S.
304, 309 n.5 (2002) (citing 2 Kaplan & Sadock’s
Comprehensive Textbook of Psychiatry 2952 (B. Sadock &
V. Sadock eds. 7th ed. 2000)). Like youth,“mental condition
is surely relevant to an individual’s susceptibility to police
coercion.” Connelly, 479 U.S. at 165; see also United States
v. Garibay, 143 F.3d 534, 538 (9th Cir. 1998) (“[a]
defendant’s mental capacity directly bears upon the question
whether he understood the meaning of his Miranda rights
and the significance of waiving his constitutional rights”
(first citing Derrick v. Peterson, 924 F.2d 813, 817–24 (9th
Cir. 1990), overruled on other grounds by United States v.
Preston, 751 F.3d 1008 (9th Cir. 2014) (en banc); then citing
United States v. Glover, 596 F.2d 857, 865 (9th Cir. 1979));
cf. Preston, 751 F.3d at 1022 (“It simply ‘takes less’ in terms
of sophisticated police interrogation techniques ‘to interfere
with the deliberative processes of one whose capacity for
rational choice is limited than it takes to affect the
deliberative processes of one whose capacity is not so
limited’” (quoting Smith v. Duckworth, 910 F.2d 1492, 1497
(7th Cir. 1990)). Accordingly, Mr. Rodriguez’s age and
intellectual limitations made him susceptible to suggestion
and coercion. 2


     2
       This case is unlike United States v. Bernard S., 795 F.2d 749 (9th
Cir. 1986), where we affirmed the validity of a seventeen-year-old
suspect’s waiver. In Bernard S., the suspect was accompanied by his
mother during the interrogation, but Mr. Rodriguez faced two
experienced officers alone. He did not sign a waiver of his rights. And
32                 RODRIGUEZ V. MCDONALD

    Turning to the other prong of the voluntariness inquiry,
the tactics employed by police in this case further support
the conclusion that Mr. Rodriguez’s confession was not
voluntary. The officers suggested to Mr. Rodriguez that
cooperation would result in leniency: they told him they
would take “what you tell us” to the district attorney “and
say, hey man, you know what, this guy – we think – he’s –
you know, he’s 14 maybe there was a little bit of influence
from the other guys the older guys, you know, he still – we
can still save him he’s not an entirely bad dude.” Even more
explicitly, they suggested that cooperating was the only way
to “save [his] life”: “I mean, that’s it what’s done is done,
but this is like the rest of your life now, this is the difference,
you[’re] only 14, man. It’s not like you[’re] 18, 19 and you
know, you’re 14 years old, man, you can still save your life.
You still have a lifetime.” Further: “You got a chance to set
things right, take responsibility for what you did, and then
whatever happens happens but be assured that what we
would like to do is talk to the district attorney tell him that
you were cooperative and being truthful and [accept] the
responsibility.”

    After Mr. Rodriguez asked for a lawyer, the officers
continued to pressure him. Though Mr. Rodriguez had
repeatedly denied participating in the shooting, the officers
told him he would be charged with murder later that day,
increasing the urgency of cooperation. An officer reminded
Mr. Rodriguez that they had “tried to give [him] the
opportunity to straighten things out,” recalling the officers’
earlier promises of leniency.


at fourteen years old, with A.D.H.D. and a “borderline” I.Q., he was
more likely to be susceptible to coercive influence than the seventeen-
year-old suspect in Bernard S. See 795 F.2d at 752–53.
                    RODRIGUEZ V. MCDONALD                              33

    This is precisely the type of threat that we have held
makes a subsequent reinitiation of interrogation involuntary.
In Collazo v. Estelle, 940 F.2d 411, 413–14 (9th Cir. 1990)
(en banc), the defendant initially refused to waive his
Miranda rights and instead asked to speak with a lawyer. He
did not initiate further discussion or otherwise change his
mind until the police responded that “it ‘might be worse’ for
him if he talked to an attorney, and that it was in his interest
to talk to them without one.” Id. at 413. He then confessed
to the crime for which he had been charged. Id. at 414. We
held that this tactic was coercive, reasoning that the officer’s
“words were calculated to pressure Collazo into changing his
mind.” Id. at 416; see also id. at 419 (“overreaching
behavior violated not only Miranda, but also the general
Constitutional prohibition against coercive interrogation
practices likely to result in involuntary responses”).

    Similarly here, by suggesting to Mr. Rodriguez that he
would be imminently charged with murder but that
cooperation would result in more lenient treatment from the
court, the probation office, and from the police themselves,
the officers “effectively told [Mr. Rodriguez] he would be
penalized if he exercised rights guaranteed to him under the
Constitution of the United States.” Id. at 417. 3


    3
       Although it is generally not unconstitutional for officers to lie as
an interrogation technique, we note that Detectives Rivera and Carrillo
employed sophisticated interrogation techniques that likely helped
overcome Mr. Rodriguez’s will. Before Mr. Rodriguez’s invocation of
his right to counsel, the officers repeatedly told Mr. Rodriguez that they
had already talked to the other men involved and that those men had told
them the whole story. The officers then proceeded to feed Mr. Rodriguez
details about the shooting. They framed their questions to present Mr.
Rodriguez with a choice between two alternative factual narratives.
Either Mr. Rodriguez was a “bad dude” who killed in cold blood, or he
34                  RODRIGUEZ V. MCDONALD

    Because this pressure followed Mr. Rodriguez’s
invocation of his right to counsel, it constituted “badgering”
in direct violation of Miranda and Edwards. See Miranda,
384 U.S. at 474; Edwards, 451 U.S. at 484–85; Harvey,
494 U.S. at 350; Bradshaw, 462 U.S. at 1044. “At a point
where the law required [the officer] to back off, he did not
‘scrupulously honor’ [Mr. Rodriguez’s] right to cut off
questioning; he stepped on it.” Collazo, 940 F.2d at 417.
Particularly in light of Mr. Rodriguez’s special
vulnerabilities to coercion, see Preston, 751 F.3d at 1020,
we hold that these coercive police tactics overbore Mr.
Rodriguez’s will, and that his waiver of his previously
invoked right to counsel was not voluntary.

    Neither are we convinced that Mr. Rodriguez fully
grasped the meaning of his Miranda rights by the time he
purported to waive them post-invocation. While Mr.
Rodriguez’s request for counsel demonstrates that he


was a young, scared kid who shot Mr. Penaloza and Ms. Portillo under
pressure from older gang members.

     When Mr. Rodriguez answered in a way that conflicted with the
officers’ narrative, they accused Mr. Rodriguez of lying and told him that
“nobody likes a liar, man, the judges [don’t] like liars, the probation
department doesn’t like liars, police don’t like the liars.” When Mr.
Rodriguez changed his story to fit the officers’ narrative, by contrast,
they praised him. Pressuring a suspect “to change answers inconsistent
with guilt and adopt answers evidencing guilt instead” is a police tactic
particularly likely to cause an intellectually disabled suspect to “shift”
his answers “to conform to the perceived desires of the interrogator.”
See Miranda, 384 U.S. at 448 (“[C]oercion can be mental as well as
physical”); cf. Preston, 751 F.3d at 1024 (quoting Stanley L. Brodsky &
Allyson D. Bennett, Psychological Assessments of Confessions and
Suggestibility in Mentally Retarded Suspects, 33 J. PSYCHIATRY & L.
359, 363 (2005)).
                     RODRIGUEZ V. MCDONALD                               35

understood the content and importance of his Miranda
rights, see Juan H., 408 F.3d at 1272, the officers’
subsequent failure to honor that invocation effectively
amended the content of the Miranda warnings they had
previously delivered. Though Mr. Rodriguez was told that
he had the right to “the presence of an attorney before and
during any questioning,” when Mr. Rodriguez asked for an
attorney to assist him, no attorney was contacted. Instead,
the officers immediately continued to question Mr.
Rodriguez, directly contradicting the earlier warning that
Mr. Rodriguez had the right to an attorney during
questioning, if he wanted one. The officers told Mr.
Rodriguez that he was going to be taken to Eastlake and
charged with murder that very day. Over the next several
hours, as Mr. Rodriguez remained in police custody, no
attorney was ever even contacted, let alone provided to Mr.
Rodriguez. 4

    Finally, as the officers were booking Mr. Rodriguez into
a juvenile detention facility – having impressed upon him
that he would imminently be charged with murder – Mr.
Rodriguez asked Detective Rivera what was going to happen
next. Though Detective Rivera explained that he could not
speak to him until Mr. Rodriguez had spoken to an attorney,
anyone in Mr. Rodriguez’s shoes would have understood
that no attorney would arrive before he was charged with

    4
      Mr. Rodriguez continues to argue that he did not re-initiate
conversation with the officers – that, rather, the officers continued to
badger him during the car ride to Eastlake. But absent additional
corroborating evidence beyond Mr. Rodriguez’s declaration and
suppression hearing testimony, we cannot say that Mr. Rodriguez’s
evidence on this point provides the necessary clear and convincing
evidence to rebut the state court’s factual finding that the officers did not
continue to interrogate Mr. Rodriguez on the way to Eastlake. See 28
U.S.C. § 2254(e)(1).
36                RODRIGUEZ V. MCDONALD

murder. Given what the officers had told him, Mr.
Rodriguez also would have believed that speaking to
Detective Rivera without counsel was his last, best chance
to help himself. Thus, when Detective Rivera told him that
he could “chang[e] his mind” about exercising his right to
counsel, Mr. Rodriguez’s subsequent waiver was not “made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Moran, 475 U.S. at 421.

    The danger that a suspect could be pressured to rescind
an earlier invocation of the right to counsel is exactly the
constitutional hazard that Edwards aimed to prevent.
Edwards is a “bright-line rule,” expressing the “‘relatively
rigid requirement that interrogation must cease’” through
“clear and unequivocal” guidelines to law enforcement.
Roberson, 486 U.S. at 681–82 (quoting Fare, 442 U.S. at
718. Under Edwards, police must give even greater
deference to an invocation of the right to counsel than to a
decision to remain silent, which itself must be “scrupulously
honored”: a suspect’s request for counsel, unlike a decision
to end questioning, raises the presumption that the suspect
“is unable to proceed without a lawyer’s advice.” Roberson,
486 U.S. at 683 (citing Michigan v. Mosley, 423 U.S. 96, 110
n.2 (1975) (White, J., concurring)). When officers fail to
“scrupulously honor” a suspect’s invocation of the right to
counsel, the suspect’s subsequent waiver of that right – and
any confession that follows – is presumptively invalid.
Roberson, 486 U.S. at 681; see also Miranda, 384 U.S. at
476. Mr. Rodriguez’s waiver and confession present the
case in point. 5


     The state trial court in this case did not even ask whether Mr.
     5

Rodriguez’s post-invocation waiver was knowing, intelligent, and
                    RODRIGUEZ V. MCDONALD                             37

C. Prejudice

    Harmless error review applies to the introduction of Mr.
Rodriguez’s illegally obtained confession. Sessoms v.
Grounds, 776 F.3d 615, 629 (9th Cir. 2015) (en banc) (citing
Arizona v. Fulminante, 499 U.S. 279, 295 (1991)). Reversal
on collateral review is appropriate only if this court has
“grave doubt about whether a trial error of federal law had
‘substantial and injurious effect or influence in determining
the jury’s verdict.’” Davis v. Ayala, 135 S. Ct. 2187, 2197–
98 (2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436
(1995)).

    In this case, where there was no physical evidence
linking Mr. Rodriguez to the crime, where the government
highlighted Mr. Rodriguez’s confession in both opening and
closing argument, and where the jury sent out a note
specifically expressing doubt about the validity of the
confession, we are gravely concerned that admission of that
confession did substantially and injuriously influence the
jury. See Taylor, 366 F.3d at 1017 (“Certainly, confessions
have profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if
told to do so.” (quoting Fulminante, 499 U.S. at 296)).

    In particular, we note the government’s reliance in
closing argument on a theory first suggested by Detectives
Rivera and Carrillo during their interview with Mr.
Rodriguez: the theory that Mr. Rodriguez had received his

voluntary. Just as in Edwards itself, the state court did not “undert[ake]
to focus on whether [Mr. Rodriguez] understood his right to counsel and
intelligently and knowingly relinquished it.” 451 U.S. at 484. Thus, as
in Edwards, “[i]t is . . . apparent that the decision below misunderstood
the requirement for finding a valid waiver of the right to counsel, once
invoked.” Id.
38              RODRIGUEZ V. MCDONALD

tattoo no more than one month prior – that is, immediately
after the shooting – as confirmation that he had proven
himself loyal to the gang. The portion of the videotaped
interview where the detectives questioned Mr. Rodriguez
about the age of his tattoo was played for the jury, even
though this questioning preceded the Miranda warnings.
Paired with this evidence, admission of Mr. Rodriguez’s
coerced confession, in which he admitted to shooting Mr.
Penaloza because he was a member of the Drifters, likely
had a substantial and injurious influence on the jury’s
evaluation whether Mr. Rodriguez had acted for the benefit
of a “criminal street gang.” Proof of this allegation resulted
in a mandatory additional term of ten years, to be served
consecutively. See Cal. Penal Code § 186.22(b)(1)(C).
Altogether, admission of his confession cost Mr. Rodriguez
eighty-four years in prison: the very “lifetime” that, in
exchange for Mr. Rodriguez’s cooperation, the detectives
had offered to save.

                     IV. CONCLUSION

    It is clear that, in this case, a boy who invoked his
constitutional right to the assistance of counsel was denied
this assistance, and then was badgered into confessing
murder. Accordingly, we REVERSE and REMAND.
Unless the State of California elects to retry Mr. Rodriguez
within a reasonable time, the district court shall grant Mr.
Rodriguez’s habeas petition under 28 U.S.C. § 2254.
