                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DANIEL J. MARTINEZ,                   No. 15-16433
        Petitioner-Appellant,
                                       D.C. No.
             v.                  CV 11-0572 AWI-MJS

MATTHEW CATE,
      Respondent-Appellee.             OPINION


     Appeal from the United States District Court
         for the Eastern District of California
   Anthony W. Ishii, Senior District Judge, Presiding

        Argued and Submitted February 7, 2018
              San Francisco, California

               Filed September 11, 2018

  Before: Sidney R. Thomas, Chief Judge, A. Wallace
    Tashima and Morgan Christen, Circuit Judges.

              Opinion by Judge Tashima
2                        MARTINEZ V. CATE

                            SUMMARY*


                          Habeas Corpus

   The panel reversed the district court’s denial of Daniel J.
Martinez’s habeas corpus petition challenging his California
conviction for second-degree murder, and remanded.

    The panel held that the only reasonable interpretation of
what occurred between Martinez and an interrogating
detective is that the detective continued interrogating
Martinez after Martinez had clearly – and repeatedly –
invoked his right to counsel, and that the detective badgered
Martinez into waiving that right. The panel held that the
California Court of Appeal’s conclusion that the detective
ceased interrogation and that Martinez’s waiver of the right
to counsel was valid is an unreasonable application of
Miranda v. Arizona, 384 U.S. 436 (1966); Rhode Island v.
Innis, 446 U.S. 291 (1980); Edwards v. Arizona, 451 U.S. 477
(1981); and related cases. In light of the Edwards violation,
the panel further held that no reasonable court could have
concluded that the government overcame its burden to show
that Martinez’s subsequent waiver was valid. The panel had
grave doubts that the improper admission of Martinez’s
statements did not affect the verdict.




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

                         COUNSEL

Gary P. Burcham (argued), Burcham & Zugman, San Diego,
California, for Petitioner-Appellant.

Brian R. Means (argued), Deputy Attorney General; Tami
M. Krenzin, Supervising Deputy Attorney General; Michael
P. Farrell, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.


                          OPINION

TASHIMA, Circuit Judge:

    Once a suspect invokes his right to counsel during
custodial interrogation, the officer must immediately cease
questioning and honor that right. In this habeas proceeding,
we hold that the interrogating officer failed scrupulously to
honor the suspect’s right and that the California Court of
Appeal unreasonably applied clearly established law in
concluding otherwise. Further, we have grave doubts as to
whether the admission into evidence of the suspect’s
improperly-obtained statements influenced the jury’s verdict.
We thus reverse the district court's denial of habeas relief, and
remand for further proceedings consistent with this opinion.
4                        MARTINEZ V. CATE

                           BACKGROUND

I. Factual Background

    A. The Shooting

    On December 8, 2005, Petitioner Daniel Martinez and
Pablo Lopez had a neighborhood confrontation with Jefte and
Jair Garcia that left Jefte dead from a gunshot wound.1

    There are differing accounts of the shooting, but the basic
facts are as follows. Martinez and Lopez’s neighborhood
included residents claiming membership in the rival Norteño
and Sureño gangs. The Garcia brothers claimed Sureño
membership; Martinez and Lopez allegedly claimed Norteño.
On December 8, 2005, Martinez and Lopez knocked on a
companion’s door and retrieved a shotgun stored there. One
companion testified that Martinez asked for “the gauge,”
referring to the shotgun. Lopez put the gun behind his back
and started to walk down the driveway with Martinez. Two
companions from the house followed Lopez and Martinez.
Halfway down the driveway, Martinez and Lopez started
exchanging words with the Garcia brothers, who were across
the street. The brothers accused Lopez and Martinez of
tagging “YGL,” which stands for “Young Gangster Locos,”
on the sidewalk outside of the brothers’ house. Jefte took his
shirt off and walked to the middle of the street. Both of
Lopez and Martinez’s companions thought that Jefte wanted
to fight. Additionally, one of the companions testified that
Jair threatened, “I’ll peel your guys’ cap back,” meaning he
was going to shoot at them, but there was no consensus about

    1
      The facts are adopted from the California Court of Appeal’s decision
and, pursuant to 28 U.S.C. § 2254(e), presumed to be true.
                        MARTINEZ V. CATE                      5

whether the Garcia brothers referred to having a gun. The
two companions’ recollections also differed as to whether
Martinez said anything to Jefte or Lopez while Jefte was
shirtless in the middle of the street. One companion testified
that Jair reached behind his back during the confrontation.
The other companion did not hear the brothers threaten to
shoot at Lopez and Martinez, and did not see a weapon on the
Garcia brothers. Lopez eventually produced the shotgun
from behind his back and almost immediately fired it once.
Jefte was facing the weapon when he was shot. One of the
companions testified that Martinez had told Lopez to “[j]ust
do it” right before Lopez fired. Martinez, Lopez, and their
two companions ran.

   Afterwards, Martinez hid out at a nearby house and
bragged that he had “shot this fool, shot this scrap.”2 Two
days later, the police arrested Martinez.

   B. The Interrogation

   On December 10, 2005, at approximately 7:00 p.m.,
Detective Navarro interrogated Martinez. In the interview
room, Detective Navarro uncuffed Martinez, got him some
water, took some biographical information and said,

         I want to talk to you about the shooting last
         night or two nights ago . . . . I know what
         happened already OK . . . . I really want to
         get your side of the story. I only have one
         side of the story right now. OK. UH from the
         guys across the street, the Sureños.


   2
       “Scrap” may be a derogatory term for Sureño members.
6                   MARTINEZ V. CATE

Detective Navarro then read Martinez his Miranda rights.

    Immediately after hearing his Miranda rights, Martinez
asked, “I can have an attorney?” Detective Navarro clarified
whether Martinez wanted an attorney and Martinez stated, “I
would like to have an attorney.” Without a break, Detective
Navarro asked Martinez if he already had an attorney (yes),
what his attorney’s name was (Percy), whether Martinez had
already spoken to Percy (no), and whether Martinez would
talk “but with an attorney present?” To the last question,
Martinez replied “yeah [] cuz [sic] I don’t know much about
the law.” Detective Navarro then questioned Martinez about
Martinez’s father’s full name. After Martinez answered, the
following interaction took place:

       MARTINEZ: Alright. I’m willing to talk to
       you guys uh but just I would like to have an
       attorney present. That’s it.

       NAVARRO: Yeah, I don’t know if we could
       get a hold of him right now.

       MARTINEZ: Yeah.

       NAVARRO: All I wanted was your side of
       the story. That’s it. OK. So, I’m pretty much
       done with you then. Um, I guess I don’t know
       another option but to go ahead and book you.
       OK. Because

       MARTINEZ:        What am I being booked
       under?
                         MARTINEZ V. CATE                                7

         NAVARRO: Your3 going to be booked for
         murder because I only got one side of the
         story. OK.

         MARTINEZ: But how how’s he going to go
         about that. If we talk, once you get a hold of
         my uh attorney.

         NAVARRO: That’s the thing, I don’t know
         when were going to get a hold of him. Maybe
         I don’t know when he’s going I don’t know
         when your going to call him.

         MARTINEZ: I have to get a hold of him.

         NAVARRO: Huh?

         MARTINEZ: I have to get a hold of him?

         NAVARRO: Yeah.

         MARTINEZ:                   You       guys       don’t
         (unintelligible)

         NAVARRO: No. No, your going to have to
         call him and it’s going to have to be from jail.




    3
       The transcript of the interrogation contains several typographical
errors. Where we quote extensive portions of the transcript, we reproduce
the interrogation as recorded, rather than entering “[sic]” after each one.
Where the transcript included [sic] we have omitted the designation for
readability.
8                   MARTINEZ V. CATE

    After Martinez expressed frustration about the situation,
he asked the detective, “what did you want to talk to me
about?” At which point Detective Navarro said that he
wanted to talk about the shooting and asked if Martinez
“want[s] the attorney,” or whether Martinez did not care.
Martinez and Detective Navarro went back and forth a bit,
with the detective saying he wanted Martinez’s side of the
story and Martinez saying he did not want to go to jail and
that he would tell the truth if that “help[ed] [him] walk
away.”

    Without an attorney present, Detective Navarro continued
to interrogate Martinez. At trial, Detective Navarro testified
that he asked Martinez whether Martinez felt intimidated by
Jefte during the confrontation, and whether Martinez saw a
gun on Jefte. Detective Navarro testified that Martinez said
he did not feel threatened and did not see a gun.

II. Procedural Background

    A. Trial

    Martinez did not file a pre-trial motion to suppress the
statements from Detective Navarro’s interrogation. Instead,
during trial, the defense objected to admission of the
statements on Fifth Amendment grounds and the trial judge
held a sidebar with counsel to discuss the matter. The trial
judge concluded that although Martinez invoked the right to
counsel, Navarro ceased interrogation. Then, in the eyes of
the trial judge, Martinez reinitiated conversation and
voluntarily waived his previously-asserted right to counsel.
Specifically, the trial judge determined that questions about
Martinez’s attorney and about Martinez’s father were not
improper questions after Martinez’s invocation, but were
                     MARTINEZ V. CATE                        9

instead part of the booking process. Further, the trial judge
concluded that nothing that Detective Navarro said after
Martinez’s invocation was a “threat” that “would invalidate
[Martinez] changing his mind on the invocation.” The trial
judge did highlight Detective Navarro’s statement that he was
going to book Martinez “because [he] only got one side of the
story” as the most “critical” issue that “might jeopardize”
admission of Martinez’s responses. Nonetheless, the judge
concluded that the questions after Martinez’s invocation were
valid, and that Martinez’s change of heart was voluntary. The
trial judge refused to suppress the statements.

    During closing argument, the prosecution cited
Martinez’s responses to Detective Navarro’s questioning to
rebut a self-defense instruction. The prosecution argued that
Martinez’s statements that “he didn’t see a gun” and “didn’t
feel threatened” were “critical” to “self-defense and dropping
a murder [conviction] to manslaughter . . . .”

    The jury convicted Martinez of second-degree murder and
active gang participation but “also expressly found that
Martinez ‘did act intentionally, deliberately and with
premeditation.’”      Therefore, the jury did not accept
Martinez’s self-defense argument. Martinez was sentenced
to 40 years to life imprisonment.

   B. Direct Appeal

    On direct appeal, Martinez challenged the admission of
the statements. The California Court of Appeal reviewed the
interview transcript and affirmed the trial court’s ruling that
Martinez’s statement was admissible. The court focused its
analysis on whether Detective Navarro telling Martinez that
10                  MARTINEZ V. CATE

he would need to contact his lawyer from jail rendered his
waiver involuntary.

     First, citing Rhode Island v. Innis, 446 U.S. 291, 301
(1980), the Court of Appeal found that “once Navarro
clarified that Martinez was willing to talk to him, but wanted
an attorney present, interrogation ceased. The questions
Navarro asked concerning Martinez’s father did not constitute
interrogation.” Second, the court reasoned that “[i]t was
Martinez who then turned the subject back to having an
attorney present; we see nothing deceptive or coercive in
Navarro’s response that he did not know if they could get
hold of Martinez’s attorney.” Third, the court interpreted
Martinez’s “question about what he was being booked for” as
a reinitiation of the conversation with Detective Navarro.
Fourth, the court concluded that “[t]here was nothing
inappropriate or misleading in Navarro’s telling Martinez that
Martinez would have to call his lawyer from jail.” Finally,
the court noted that “[a]fter Martinez asked what Navarro
wanted to talk about, Navarro proceeded to make certain that
Martinez was waiving his right to counsel.” The court did not
explicitly discuss whether it considered Martinez’s waiver
voluntary, knowing, and intelligent, but this must have been
its conclusion.

   The California Supreme Court summarily denied
Martinez’s petition for review.

     C. Habeas Proceedings

    Martinez filed a petition for writ of habeas corpus in the
Stanislaus County Superior Court, which denied the petition,
“find[ing] that all the issues raised in the writ were
appropriately considered by the [California Court of Appeal],
                     MARTINEZ V. CATE                        11

or if not, could have been.” Subsequent petitions to the
California Court of Appeal and California Supreme Court
were summarily dismissed.

    Martinez then filed his federal habeas petition. A
magistrate judge issued Findings and Recommendations,
recommending that the district court deny Martinez’s claim
that “his Miranda rights were violated based on continued
questioning after he invoked his right to an attorney.” In
recommending that the district judge deny the petition, the
magistrate judge noted that the conversation between
Martinez and Detective Navarro “could be interpreted in
multiple ways.” On one hand, the magistrate judge wrote that
a “fair-minded jurist could find that the officer continued to
interrogate” Martinez after he had invoked his right to
counsel because “the officer may have used the coercive
pressure of booking Petitioner in jail to obtain a waiver of his
right to counsel.” On the other hand, the Findings and
Recommendations concluded that “the state court’s
determination is equally plausible. . . . [T]elling Petitioner
that if the interrogation were over, he would be booked is
informative in nature, and likewise may not be considered as
[continued] interrogation.”

     Somewhat contradicting the conclusion that the state
court’s determination was “equally plausible,” the magistrate
judge also “note[d] that the officer did more here than just
inform Petitioner that he was going to be booked.” In doing
so, the magistrate judge recognized that the officer may have
“create[d] the potential implication that if Petitioner was to
talk then he might not be booked.” Nevertheless, because
“fairminded jurists could disagree” over the interpretations,
the magistrate judge recommended denying the petition, but
granting a Certificate of Appealability.
12                   MARTINEZ V. CATE

   The district court adopted the Findings and
Recommendations denying the petition and issued a
Certificate of Appealability as to Martinez’s Miranda claim.

                   STANDARD OF REVIEW

    We review de novo the district court’s denial of
Martinez’s habeas petition, and we review the district court’s
findings of fact for clear error. See Hurles v. Ryan, 752 F.3d
768, 777 (9th Cir. 2014).

    When, as here, we conclude that a state court committed
a constitutional error during a criminal trial, we “must assess
the prejudicial impact of [the error] under the ‘substantial and
injurious effect’ standard set forth in Brecht v. Abrahamson,
507 U.S. 619 (1993).” Fry v. Pliler, 551 U.S. 112, 114
(2007). This is true even “when the state appellate court
failed to recognize the error and did not review it for
harmlessness.” Id.; see also Larson v. Palmateer, 515 F.3d
1057, 1064 (9th Cir. 2008).

    “In conducting our review, we look to the last reasoned
state-court decision.” Van Lynn v. Farmon, 347 F.3d 735,
738 (9th Cir. 2003). Here, the parties agree that the relevant
decision is the California Court of Appeal’s decision on direct
appeal.

                         DISCUSSION

    Martinez’s habeas petition is governed by the provisions
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
AEDPA “restricts the circumstances under which a federal
habeas court may grant relief to a state prisoner whose claim
                     MARTINEZ V. CATE                         13

has already been ‘adjudicated on the merits in State court.’”
Johnson v. Williams, 568 U.S. 289, 292 (2013) (quoting
28 U.S.C. § 2254(d)). Under AEDPA, this court may only
grant habeas relief if a state court’s decision was
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).

    We first consider whether to review Martinez’s claims de
novo or whether to accord the California court the required
deference. Decisions that are not “adjudicated on the merits”
are not subject to AEDPA deference. See Johnson, 568 U.S.
at 292. At oral argument, there was some discussion about
whether the state court `reached the merits of one of
Martinez’s arguments – namely, that Navarro continued
interrogation by telling Martinez that he would be booked
because he was not talking. But, Martinez had never
previously asserted that the state court failed to adjudicate his
claims on the merits and thereby abandoned the issue. See
Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009).
Regardless, there is a strong presumption that the California
Court of Appeal reached the merits of Martinez’s Miranda
claim and Martinez did not rebut this presumption. See
Johnson, 568 U.S. at 301–02. Further, just because the
California Court of Appeal did not explicitly state that the
booking comments were not interrogation, we presume it
concluded as much in remarking “[i]n our view, once Navarro
clarified that Martinez was willing to talk to him, but wanted
an attorney present, interrogation ceased.”
14                   MARTINEZ V. CATE

    Martinez also asserts that we should review his legal
claims de novo because the California Court of Appeal’s
decision was based on an unreasonable determination of
facts. We think the court reasonably determined the facts.
Martinez contends that the state court’s “focus was
improperly narrow” because it did not explicitly discuss
Navarro’s statements about booking Martinez based on his
unwillingness to talk. However, the Court of Appeal
included the relevant portion of the transcript in its decision
and presumptively read it. That the Court of Appeal did not
discuss Navarro’s statements about booking Martinez in its
analysis section is not a factual error; rather, the court made
a legal determination that those statements did not rise to the
level of interrogation. We therefore review the Court of
Appeal’s decision with the requisite AEDPA deference.

I. Miranda and its Progeny

    Miranda v. Arizona and its progeny provide the clearly
established law upon which Martinez’s petition is based.
Among the many safeguards that Miranda established for
criminal defendants, one is the express “right to have counsel
present” during a custodial interrogation. 384 U.S. 436, 469
(1966). Miranda described this right as “indispensable” to
the protection of the Fifth Amendment privilege against self-
incrimination. Id.

    Building on Miranda, Edwards v. Arizona set out the
analysis that courts must follow when a defendant has
invoked his right to counsel. 451 U.S. 477, 482–86 (1981).
First, Edwards explained that “waivers of counsel must not
only be voluntary, but must also constitute a knowing and
intelligent relinquishment or abandonment of a known right
or privilege.” Id. at 482. Edwards then held that “a valid
                     MARTINEZ V. CATE                        15

waiver of that right cannot be established by showing only
that [a suspect] responded to further police-initiated custodial
interrogation.” Id. at 484. Finally, Edwards established the
rule that once an accused invokes the right to 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. Arizona v.
Roberson then articulated some of the reasoning behind the
Miranda and Edwards rule:

       [I]f 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 . . . is itself the product of
       the inherently compelling pressures and not
       the purely voluntary choice of the suspect.

486 U.S. 675, 681 (1988) (internal quotation marks omitted).
This line of cases “thus established another prophylactic rule
designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights.” Michigan
v. Harvey, 494 U.S. 344, 350 (1990).

    The prophylactic rule set out in Edwards is limited by two
principles. First, the suspect can counteract his own
invocation of the right to counsel by “initiat[ing] further
communication, exchanges, or conversations with the police.”
Edwards, 451 U.S. at 485. A suspect “evinc[ing] a
willingness and a desire for a generalized discussion about
the investigation[,]” including asking “what is going to
happen to me now?” is sufficient to initiate further
discussions with the police. See Oregon v. Bradshaw,
16                   MARTINEZ V. CATE

462 U.S. 1039, 1045–46 (1983) (plurality opinion)
(Rehnquist, J.). But, initiating further discussions is not
sufficient to admit a defendant’s responses. “[I]f the accused
invoked his right to counsel, courts may admit his responses
to further questioning only on finding that he (a) initiated
further discussions with the police, and (b) knowingly and
intelligently waived the right he had invoked.” Smith v.
Illinois, 469 U.S. 91, 95 (1984) (per curiam) (citing Edwards,
451 U.S. at 485–86, n.9).

    Second, the rule in Edwards does not apply to all
interactions with the police – it applies only to custodial
interrogation. Edwards, 451 U.S. at 486. In other words, not
all communications with the police after a suspect has
invoked the right to counsel rise to the level of interrogation.
“‘Interrogation,’ as conceptualized in the Miranda opinion,
must reflect a measure of compulsion above and beyond that
inherent in custody itself.” Rhode Island v. Innis, 446 U.S.
291, 300 (1980). “[T]he Miranda safeguards come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent.” Id. at 300–01.

II. Martinez’s Miranda Claim

    The parties agree that Martinez unequivocally invoked his
right to counsel. We therefore review whether Detective
Navarro continued interrogating Martinez in violation of
Edwards, and whether Martinez’s statements are nonetheless
admissible. We hold that the only reasonable interpretation
of what occurred between Navarro and Martinez is that
Navarro continued interrogating Martinez after the suspect
had clearly – and repeatedly – invoked his right to counsel,
and that Navarro badgered Martinez into waiving that right.
The California Court of Appeal’s conclusion that Navarro
                     MARTINEZ V. CATE                       17

ceased interrogation and that Martinez’s waiver of the right
to counsel was valid is an unreasonable application of
Miranda, Innis, Edwards, and related cases. In light of the
Edwards violation, we further hold that no reasonable court
could have concluded that the government overcame its
burden to show that Martinez’s subsequent waiver was valid.

   A. Detective Navarro Continued Interrogation

       1. Express Questioning

   As noted above, Innis defined “interrogation” as either
express questioning or its functional equivalent. 446 U.S. at
300–01. We first review whether Martinez was subject to
express questioning that rose to the level of interrogation.

    Innis recognizes that not all questions constitute
interrogation. Specifically, Innis exempts words and actions
that are “normally attendant to arrest and custody” from the
definition of interrogation. Id. at 301. Thus, “[t]he so-called
‘booking questions exception’ exempts ‘from Miranda’s
coverage [express] questions to secure the biographical data
necessary to complete booking or pretrial services.’” United
States v. Williams, 842 F.3d 1143, 1147 (9th Cir. 2016)
(quoting Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)
(plurality opinion)). Questions about the defendant’s “name,
address, height, weight, eye color, date of birth, and current
age” fall within the Miranda exception. Muniz, 496 U.S. at
601.

   Immediately after Martinez requested an attorney,
Detective Navarro asked the defendant questions about
whether he already had a lawyer. Although these are express
questions, it is reasonable to conclude that the questions were
18                  MARTINEZ V. CATE

“attendant to arrest” and that a reasonable officer would not
have known that this line of questioning was “likely to elicit
an incriminating response.” Innis, 446 U.S. at 301.

    Likewise, the Court of Appeal’s conclusion that asking
about the name of Martinez’s father was not interrogation is
reasonable because Detective Navarro could have just been
eliciting biographical information. Therefore, a fairminded
jurist could conclude that these questions were attendant to
booking.

       2. Functional Equivalent of Express Questioning

    Next, we turn to whether Detective Navarro’s statements
after Martinez invoked his right to counsel constituted the
functional equivalent of express questioning. The functional
equivalent of interrogation is defined as “any words or
actions on the part of the police . . . that the police should
know are reasonably likely to elicit an incriminating response
from the suspect.” Id. This definition “focuses primarily
upon the perceptions of the suspect, rather than the intent of
the police,” but is an objective standard such that the police
“cannot be held accountable for the unforeseeable results of
their words or actions.” Id.

    After Detective Navarro told Martinez that he was not
sure if his lawyer was available, Detective Navarro stated,
“[a]ll I wanted was your side of the story. That’s it. OK. So,
I’m pretty much done with you then. Um, I guess I don’t
know another option but to go ahead and book you. OK.
Because . . . .” Martinez cut in, “[w]hat am I being booked
under?” to which Navarro replied “[y]our [sic] going to be
booked for murder because I only got one side of the story.
OK.”
                     MARTINEZ V. CATE                         19

    The California Court of Appeal did not explicitly analyze
whether Detective Navarro’s two statements about booking
Martinez constituted interrogation. Instead, the Court of
Appeal stated, “[i]n our view, once Navarro clarified that
Martinez was willing to talk to him, but wanted an attorney
present, interrogation ceased.” In the absence of any
reasoning from the state court, the magistrate judge’s
Findings and Recommendations attempted to provide the best
justification for the California court’s conclusion that the
statements about booking were not interrogation: “telling
Petitioner that if the interrogation were over, he would be
booked is informative in nature, and likewise may not be
considered as interrogation.” Under this justification,
Detective Navarro’s statements would be “attendant to arrest”
and exempted from the definition of interrogation. However,
this is an unreasonable application of the law to the facts
because it does not reflect the correct standard for
“interrogation” because it fails to consider the likely effect of
the words on the listening suspect – particularly the words
“[y]our [sic] going to be booked for murder because I only
got one side of the story.” Any reasonable officer would
know that these particular statements about booking would
likely elicit a response.

    We think the only reasonable interpretation of (1) “all I
wanted was your side of the story. That’s it. OK. So, I’m
pretty much done with you then. Um, I guess I don’t know
another option but to go ahead and book you. OK. Because,”
and (2) “your [sic] going to be booked for murder because I
only got one side of the story. OK,” is that the statements, in
context, constitute interrogation. Again, the magistrate judge
summed up the issue succinctly: “the officer did more here
than just inform Petitioner that he was going to be booked.
The officer’s statements . . . create the potential implication
20                       MARTINEZ V. CATE

that if Petitioner was to talk then he might not be booked.”
Our only issue with the magistrate judge’s observation is the
word “potential” – we would replace it with “inescapable.”

    The clearest evidence of the interrogating nature of
Detective Navarro’s statements is their plain language. By
stating, “your [sic] going to be booked for murder because I
only got one side of the story,” Detective Navarro causally
links Martinez’s assertion of his constitutional right to the
detective’s decision to book the suspect for murder. The
obvious implication of that linkage is that if Martinez were to
give his side of the story, by waiving his just-invoked right to
counsel, he will not be booked, or not be booked for murder.
At the very least, the detective should know that his statement
would be perceived this way and was “reasonably likely to
elicit an incriminating response.” See Innis, 446 U.S. at 302.

    Further, Detective Navarro’s statements to Martinez were
not definitive: “Im [sic] pretty much done with you then;” and
“I guess I don’t know another option but to go ahead and
book you.” (Emphasis added.) Saying that you are “pretty
much” done with someone or that you “guess you don’t know
another option” strongly implies that you are not completely
done with someone or that no other option exists. The
obvious implication is that Detective Navarro only had to
book Martinez if he did not give his side of the story.
Conversely, Navarro implied that, if Martinez gave his side
of the story, Navarro might have alternative options to
booking the suspect.4


     4
       Detective Navarro’s statements are also improper in that they
implied Martinez would be punished for asserting his constitutional right
to counsel. See Doyle v. Ohio, 426 U.S. 610, 618 (1976) (“while it is true
that the Miranda warnings contain no express assurance that silence will
                         MARTINEZ V. CATE                   21

    The State argues that Detective Navarro telling Martinez
that he was booking the suspect, or that he had no option but
to book the suspect, was merely “attendant to arrest and
custody,” and “inform[ed] [Martinez] of circumstances which
contribute[d] to an intelligent exercise of his judgment.”
However, this argument ignores the causal link in Navarro’s
statements. Telling Martinez that he was being booked
because he did not give his side of the story is different than
an officer setting out the charges and the evidence against the
suspect. See United States v. Moreno-Flores, 33 F.3d 1164,
1169 (9th Cir. 1994) (holding that an officer telling a suspect
that the police had seized 600 pounds of cocaine, that the
suspect was in serious trouble, and that the detective would
like to talk to the suspect after the suspect had spoken to an
attorney, was not interrogatory); see also Shedelbower v.
Estelle, 885 F.2d 570, 573 (9th Cir. 1989).

    The State also argues that Detective Navarro’s statements
about booking Martinez were just informational and were
“recounting what had occurred previously in their
conversation.” Beyond not offering any possible explanation
about why Navarro would need to recount the conversation,
this interpretation is also unreasonable because it ignores the
causal nature of Detective Navarro’s statements.

    We cannot ignore the implications of Navarro’s statement
because the Innis test explicitly calls for considering the
“perceptions of the suspect, rather than the intent of the
police.” 446 U.S. at 301. Thus, even if Detective Navarro
only intended to recount what had happened during the
conversation, and in no way thought that he was booking
Martinez because he did not give a statement, the court must


carry no penalty, such assurance is implicit”).
22                   MARTINEZ V. CATE

still consider how a suspect would perceive the statements.
The California Court of Appeal failed to do this. Further,
how a suspect reacts to a statement can provide evidence of
how the suspect perceived the statement.

    Here, Martinez responded as if he were being asked to
give a statement, and that by doing so he would be able to
avoid booking. After Navarro told Martinez “[y]our [sic]
going to be booked for murder because I only got one side of
the story,” Martinez responded “how’s he going to go about
that. If we talk once you get a hold of my uh attorney.” Later,
Martinez made multiple references to being willing to talk to
avoid jail:

       MARTINEZ: I just you know I’m tired of
       going back and forth to jail. And if that’s the
       charge I mean you go, you don’t get the
       choice to go back and forth you know so.

       NAVARRO: Uh hmm. It’s up to you. Do
       you want to talk or you want me to sit down?

       MARTINEZ: Yeah. I mean I’m willing to
       talk to you, you know what I mean but

       NAVARRO: With the truth?

       MARTINEZ: Shit, if that’s what helps me
       walk away.

       NAVARRO:         Your young man.        Just be
       honest.
                    MARTINEZ V. CATE                       23

       MARTINEZ: Honest, the truth I’m just
       trying to go through this and be able to walk
       home and

       NAVARRO: So do you want to talk to me so
       I could sit down or what do you want to do?

       MARTINEZ: Yeah.

       NAVARRO: Yeah. OK. You don’t you
       don’t want Percy then right now? Right?
       You don’t want Percy?

       MARTINEZ: Well, If I I mean

       NAVARRO: You don’t you don’t want an
       attorney right now? Your willing to talk to
       me right now? I want to clarify that.

       MARTINEZ: Yeah.

       NAVARRO: OK.

       MARTINEZ: I’m willing.

Martinez’s willingness to talk after Detective Navarro’s
statements, and Martinez’s multiple references to avoiding
jail, suggest that he perceived Detective Navarro’s statements
as suggestions that he might not be booked if he talked.

   Because Navarro continued to interrogate Martinez after
Martinez had invoked his right to counsel, Navarro violated
the clearly-established rule from Edwards. It was an
24                  MARTINEZ V. CATE

unreasonable application of Innis and Edwards to conclude
otherwise.

     B. Martinez’s Statements are not Admissible

    After finding an Edwards violation, we next assess
whether the incriminating statements were nonetheless
admissible. To be admissible, Martinez would (1) have
needed to initiate further communication with the police, and
(2) voluntarily, knowingly, and intelligently waived his
previously-invoked right.

    First we analyze whether Martinez initiated further
discussion with Navarro. The government argues that
Martinez initiated further conversation by asking, “[w]hat am
I being booked under?” The California Court of Appeal also
suggested that Martinez’s question may have “evinced a
willingness and a desire for a generalized discussion about
the investigation; it was not merely a necessary inquiry
arising out of the incidents of the custodial relationship. It
could reasonably have been interpreted by the officer as
relating generally to the investigation.” (Quoting Bradshaw,
462 U.S. at 1045–46.)

    No fairminded jurist could interpret Martinez’s statement
as a re-initiation of the conversation. For one, the
conversation between Navarro and Martinez never stopped.
Initiate means “to begin” and no reasonable jurist could
review the transcript of the interaction between Detective
Navarro and conclude that Martinez began the exchange
about being booked for murder. Initiate, Oxford English
Dictionary Online (3d ed. 2018). In fact, Detective Navarro
was mid-sentence when Martinez asked his question.
                     MARTINEZ V. CATE                       25

     Similarly, Martinez’s question “what did you want to talk
to me about?” also came in the same conversation. In every
other case where the Supreme Court has held that a defendant
initiated the communication with the police, there was some
break in questioning. See Bradshaw, 462 U.S. at 1042
(describing that “[t]he officer immediately terminated the
conversation” before the defendant initiated communication
“[s]ometime later”); Wyrick v. Fields, 459 U.S. 42, 44–45, 47
(1982) (per curiam) (holding that where a defendant was
released from custody, met with counsel, and requested a
polygraph examination, the defendant “initiated
interrogation”). Further, Martinez’s question was a direct
response to Navarro’s assertion that he had to book Martinez
because he would not talk. The detective’s statements linking
Martinez’s booking to his invocation of the right to counsel,
and the detective’s comments that Martinez would need to
call his own attorney from jail are exactly the type of
badgering that Edwards was crafted to prevent.

    Second, even if Martinez did reinitiate, his statements are
not admissible because in light of the Edwards violation it is
presumed that Martinez’s waiver of his right to counsel was
invalid. See Roberson, 486 U.S. at 681. The California Court
of Appeal did not explain its waiver analysis, simply stating
that “Navarro proceeded to make certain that Martinez was
waiving his right to counsel and did not want to have an
attorney, or his attorney, present.”

    No fairminded jurist could review this record, conclude
that the State overcame the Edwards presumption, and hold
that Martinez’s waiver was voluntary. First, Martinez’s
responses to Navarro’s questions in themselves do not
constitute a valid waiver. See Edwards, 451 U.S. at 484
(“[W]hen an accused has invoked his right to have counsel
26                   MARTINEZ V. CATE

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.”). Next, although
Navarro told Martinez that it was up to him to decide whether
to talk, the context of the encounter cannot be ignored. This
happened in the same conversation in which Navarro told
Martinez that he was being booked because he would not
talk, in the same conversation where Martinez expressed
multiple times that he wanted a lawyer, and in the same
conversation where Martinez said he was just trying to avoid
getting booked. Detective Navarro’s last two statements to
Martinez before he finally relented are illustrative:

        NAVARRO: Yeah. OK. You don’t you
        don’t want Percy then right now? Right?
        You don’t want Percy?

        MARTINEZ: Well, If I I mean

        NAVARRO: You don’t you don’t want an
        attorney right now? Your willing to talk to
        me right now? I want to clarify that.

Martinez’s response under Navarro’s pressure is still
equivocal: “[w]ell, if . . .” Martinez was still trying to assert
his right to counsel as Navarro peppered him with questions.
This is not indicative of a voluntary waiver.

    Navarro never honored Martinez’s invocation of his right
to counsel and kept talking until he got the answer he wanted.
He never gave Martinez more than a few moments.
Ultimately, because custodial interrogation never stopped, the
only reasonable interpretation of Navarro’s responses to
                     MARTINEZ V. CATE                        27

Martinez’s invocation of the right to counsel is that the
detective was “badgering [the] defendant into waiving his
previously asserted Miranda rights.” Harvey, 494 U.S. at
350. In light of the Edwards presumption, the only
reasonable conclusion is that Martinez’s waiver “c[a]me at
the authorities’ behest . . . [and] is itself the product of the
‘inherently compelling pressures’” of Navarro’s custodial
interrogation. See Roberson, 486 U.S. at 681.

III.   Prejudice

    Our conclusion that no reasonable jurist would have
found Martinez’s waiver valid does not end the inquiry.
Martinez is “not entitled to habeas relief based on trial error
unless [he] can establish that it resulted in actual prejudice.”
Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht,
507 U.S. at 637 (internal quotation marks omitted)). “Under
this test, relief is proper only if the federal court has ‘grave
doubt about whether a trial error of federal law had
“substantial and injurious effect or influence in determining
the jury’s verdict.”’” Id. at 2197–98 (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)).

    Martinez contends that the admission of his statements
that he (1) did not see a gun on the Garcia brothers, and
(2) did not feel threatened influenced the jury’s verdict
because they rebutted his self-defense argument.
Notwithstanding the admission of the statements, the State
counters that Martinez was not prejudiced because it
presented “overwhelming evidence” of Martinez’s guilt.
Additionally, the government contends that the admission of
the interrogation statements allowed Martinez to introduce
evidence that he was intoxicated, which could have lowered
Martinez’s level of intent.
28                  MARTINEZ V. CATE

   We at least have grave doubt whether the admission of
Martinez’s statements substantially affected the jury’s
verdict. During closing argument, the prosecutor stated:

       Daniel Martinez two days later, what critical,
       critical statement made by Daniel Martinez, to
       Detective Frank Navarro, “I didn’t see a gun.
       No, I didn’t feel threatened.” Critical
       statements made to the detective investigating
       the homicide which shoots the alibi in the
       foot. This is one of the two participants in the
       murder who says, “I didn’t see a gun and I
       didn’t feel threatened.” You must show
       eminent threat of death or bodily injury in
       order to justify shooting and killing somebody
       for self-defense.

       Imagine for a second if this instruction was
       not present. You heard this referenced at least
       three times. This was the – this instruction is
       applicable to self-defense and dropping a
       murder to manslaughter and a manslaughter to
       attempted voluntary manslaughter. It’s a
       defense.

The prosecutor continued, arguing that fear of some indefinite
future harm is not sufficient:

       That’s why that cannot be recognized as a
       valid self-defense. You cannot allow people to
       go out and kill by saying and justifying it: I
       have to. They’re going to get me, future harm.
       That’s why the law’s written the way it is.
                     MARTINEZ V. CATE                        29

       Daniel Martinez said, “I didn't see a gun, and
       I didn’t feel threatened.”

    The prosecutor’s focus on rebutting Martinez’s self
defense argument, and especially Martinez’s admission that
he did not feel threatened, demonstrates how important the
prosecutor thought this evidence was for the State’s case. In
fact, he called Martinez’s statements “critical” and repeated
them twice. If the prosecutor thought that the statements
were critical for his case, he must have believed that they
could have “substantially swayed” the jury. See Sessoms v.
Grounds, 776 F.3d 615, 630 (9th Cir. 2015) (en banc).
Further, returning to an argument in closing “again and again
and telling jurors it was ‘very important evidence’” bolsters
the likelihood that the evidence affected the jury. See id.; see
also Rodriguez, 872 F.3d at 926 (highlighting the prejudicial
effect of the government’s reliance in closing argument on a
theory first brought up during an improper interrogation).

    Just as important, “[t]he prejudice from [a defendant’s]
confession cannot be soft pedaled.” Anderson v. Terhue,
516 F.3d 781, 792 (9th Cir. 2008) (en banc). “A confession
is like no other evidence; it may be the most damaging
evidence that can be admitted against a defendant.” Garcia
v. Long, 808 F.3d 771, 782 (9th Cir. 2015) (internal
quotations and alterations omitted) (citing Arizona v.
Fulminante, 499 U.S. 279, 296 (1991)). As such, this court
must “[e]xercis[e] extreme caution . . . before determining
that the admission of a confession at trial was harmless.”
Jones v. Harrington, 829 F.3d 1128,1142 (9th Cir. 2016)
(internal quotation marks and alterations omitted (citing
Fulminante, 499 U.S. at 296)).
30                   MARTINEZ V. CATE

    The State’s arguments that the admission of the
statements did not prejudice Martinez do not soothe our
doubt. First, the State argues that “there was overwhelming
evidence of Petitioner’s guilt, including his bragging
confession [to a companion] that ‘I shot this fool, man. I
smoked his ass. Shot that fucking scrap.’” In bringing this
statement up during closing, the government asked and
answered, “[w]hat do gang members do after committing a
crime . . . gang members brag.” But, Martinez’s boasts say
nothing about whether he shot in self-defense. In fact,
Martinez did not even do any shooting – Lopez did –
meaning that Martinez’s entire statement could be empty
bragging, and we think it entirely reasonable that a jury could
so conclude. In other words, we do not think the bragging is
“overwhelming evidence” that Martinez did not feel
threatened.

    The prosecution’s other evidence that Martinez or Lopez
did not see a gun is weak. The prosecutor argued that Lopez
had time to come up with the story about seeing the revolver,
that Lopez’s statements to Detective Navarro were
inconsistent, that Jair Garcia said he did not have a gun on the
911 call, and that no gun was found on the Garcia brothers.
The prosecutor brought up these arguments at the same time
he was repeating Martinez’s statements in closing. But in the
absence of Martinez’s statements, the governments rebuttal
of self-defense is considerably weaker. For one, the time that
elapsed before Lopez told the detective that he saw a gun is
not evidence, it is an argument. Further, the fact that there
was no gun does not rebut the claim that Lopez or Martinez
thought they saw a gun, or that the Garcia brothers threatened
to shoot them. Detective Navarro testified that Lopez told
him he felt it was going to be “them or him” and was “scared
for is life.” Although the State introduced testimony from
                       MARTINEZ V. CATE                            31

one of the companions, who told the jury that he did not see
a gun on the Garcia brothers, the perceptions of that witness
were seriously undermined because he also said that Jefte
turned and ran when he saw Lopez’s gun, but the autopsy
showed that Jefte was facing Lopez when he was shot. In
sum, all of the other evidence rebutting self-defense is
equivocal or circumstantial. Martinez’s improperly-admitted
statements were clear and damning; they were the backbone
of the State’s argument against self-defense. Thus, we have
grave doubts that their admission did not affect the verdict.5

                          CONCLUSION

    It is clear that Navarro ignored Martinez’s express,
unequivocal, and repeated invocations of his right to counsel
and badgered him into waiving his rights. Accordingly, we
REVERSE and REMAND. Unless the State of California
elects to retry Martinez within a reasonable period of time to
be determined by the district court, the district court shall
issue the writ granting Martinez’s habeas petition.




    5
     We are not convinced by the State’s speculation that admission of
Martinez’s statements somehow helped him because it allowed him to
make a voluntary intoxication argument. There was no instruction about
voluntary intoxication and no discussion of it in closing argument.
