                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GRADY ARNOLD,                                  No. 04-15194
              Petitioner-Appellant,
                v.                               D.C. No.
                                               CV-01-20810-JF
D.L. RUNNELS,
                                                 OPINION
            Respondent-Appellee.
                                         
        Appeal from the United States District Court
           for the Northern District of California
          Jeremy Fogel, District Judge, Presiding

                    Argued and Submitted
         January 13, 2005—San Francisco, California

                     Filed August 24, 2005

    Before: Myron H. Bright,* A. Wallace Tashima, and
           Consuelo M. Callahan, Circuit Judges.

                   Opinion by Judge Bright;
                   Dissent by Judge Callahan




   *The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

                               11385
11388               ARNOLD v. RUNNELS


                       COUNSEL

Amitai Schwartz, Esq., Elizabeth Letcher, Esq., Emeryville,
California, for the appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Gerald A. Engler, Senior Assis-
tant Attorney General, Peggy S. Ruffra, Supervising Deputy
Attorney General, Morris Beatus, Deputy Attorney General,
San Francisco, California, for the appellee.
                           ARNOLD v. RUNNELS                         11389
                               OPINION

BRIGHT, Circuit Judge:

   Grady Arnold, at age thirty-six, was sentenced by a Califor-
nia state court to serve a forty-one-year to life imprisonment
sentence as a third-strike offender, upon being convicted of
attempted armed robbery, possession of a firearm by a con-
victed felon, and shooting at an occupied building in violation
of the California Penal Code. His conviction was affirmed by
the state court of appeal. Following denial of review by the
Supreme Court of California, Arnold sought relief on several
grounds pro se through a writ of habeas corpus from the fed-
eral district court, under 28 U.S.C. § 2254. The court denied
the writ.1

   We granted a certificate of appealability as to the sole ques-
tion of whether the trial court violated Arnold’s Fifth Amend-
ment rights by admitting a tape recording of certain utterances
Arnold made during an interrogation, even though Arnold had
said he did not want to talk on tape and responded to all sub-
stantive questions on tape by saying “no comment.”

   Two critical facts control the outcome of this case: Arnold
unequivocally invoked his right not to speak on tape by say-
ing he did not want to talk on tape; further, he never thereafter
waived that right. Nonetheless, the interrogator turned the
tape recorder on and induced Arnold to respond to questions.
The trial court allowed Arnold’s “no comment” utterances to
be used against him. The Miranda2 rule requires a remand for
  1
     Arnold was tried in the Superior Court of the State of California in and
for the County of Alameda. His direct appeal was heard by the Court of
Appeal of the State of California, First Appellate District, Division Two.
His petition for habeas corpus was heard by the United States District
Court for the Northern District of California. Arnold is represented by
counsel in this appeal. He was also represented by (different) counsel in
the California Court of Appeal.
   2
     Miranda v. Arizona, 384 U.S. 436 (1966).
11390                   ARNOLD v. RUNNELS
a new trial. Thus, we reverse the decision of the district court
and direct the issuance of the writ of habeas corpus.

                                  I.

   We review de novo the district court’s decision to grant or
deny a habeas petition under 28 U.S.C. § 2254. Leavitt v.
Arave, 371 F.3d 663, 668 (9th Cir. 2004). Under the Antiter-
rorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d), a petitioner must demonstrate that the state court’s
decision on the merits was contrary to, or involved an unrea-
sonable application of, clearly established federal law under
United States Supreme Court precedent, or that the decision
was based on an unreasonable determination of the facts.
Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003); Ramirez v.
Castro, 365 F.3d 755, 762 (9th Cir. 2004). State court find-
ings of fact are presumed to be correct unless the petitioner
rebuts the presumption with clear and convincing evidence.
Davis v. Woodford, 333 F.3d 982, 991 (9th Cir. 2003).

  If the state courts thus unreasonably applied the law or
determined the facts, we must consider whether the error was
harmless, under the Kotteakos3 harmless error standard.
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

                                  II.

  Arnold argues that the state trial court violated his Fifth
Amendment rights by admitting into evidence a tape record-
ing of a portion of an interrogation. Police officers suspected
Arnold of participating in an attempted armed robbery that
occurred in September 1995. In July 1996 two officers inter-
rogated Arnold, who was in prison on an unrelated matter.

  At the beginning of the interrogation, the primary interro-
gator advised Arnold of his rights under Miranda. Arnold
  3
   Kotteakos v. United States, 328 U.S. 750 (1946).
                        ARNOLD v. RUNNELS                     11391
orally waived those rights and filled out and signed a “waiver
card.” That portion of the interrogation was not tape recorded.

   Approximately thirty minutes into the interrogation, the pri-
mary interrogator indicated that he was going to tape record
part of the interrogation. Arnold said that he did not want to
talk on tape. Disregarding Arnold’s unequivocal statement,
the interrogator turned the tape recorder on and began asking
Arnold questions. After some prefatory remarks, the interro-
gator recited the facts of Arnold’s oral and written Miranda
waiver at the beginning of the interrogation and asked Arnold
if the recitation was correct. Arnold answered, “yeah.” The
interrogator then asked a series of substantive questions, to
each of which Arnold replied, “No comment.”

   Notably, the interrogator did not ask Arnold if he was
waiving his right to refuse to speak on tape, and Arnold did
not waive that right. There was no talk of Miranda rights
beyond the statement of historical fact that Arnold had signed
the waiver card half an hour earlier.

   These facts of the interrogation are clear — and uncontra-
dicted — from two sources in the record: the testimony of the
interrogating officer and the transcript of the tape recording.4
The officer testified about the tape recording as follows:

      Q.   At some point you actually did something with
           the tape recorder which would indicate that you
           were getting ready to start recording?

      A.   Yes.

      Q.   And when you did that, did Mr. Arnold have
           any particular reaction?
  4
   We hereby grant Arnold’s unopposed motion to augment the record to
include a transcript of the taped portion of the interrogation.
11392                ARNOLD v. RUNNELS
    A.   He said he didn’t want to talk on-tape.

    ....

    Q.   Now, notwithstanding the fact that Mr. Arnold
         told you he did not want to talk on-tape, did you
         go ahead and activate the tape anyhow?

    A.   Yes.

    Q.   When you activated the tape, did you go over
         again the admonishment and waiver of rights?

    A.   Yes.

    Q.   Did Mr. Arnold acknowledge on-tape that he
         had agreed to waive his rights and talk to you?

    A.   Yes.

The transcript of the tape recording reads as follows:

    4321 Testing. Testing. Yeah, today is, uh, July 12,
    1996. It’s about twelve noon. I’m Sergeant Joseph
    Aguirre of the Oakland Police Department Robbery
    Unit presently in Susanville State Prison. Present
    also is my partner, Sergeant Earl Sherman, and the
    subject of the interview is Mr. Grady Arnold.

    Grady, would you state your name and birth date for
    the tape?

    A:   Grady Arnold, [unintelligible] eleven [unintelli-
         gible].

    Q:   And, Grady, prior to turning the tape on, I filled
         out the statement form with your name and
         address and so forth, and, I advised you of your
                 ARNOLD v. RUNNELS                   11393
     rights. I advised you that you have the right to
     remain silent, anything you say can be used
     against you in a court of law. You have the
     right to talk to a lawyer and have one present
     while you are being questioned. If you cannot
     afford a lawyer, one will be appointed to repre-
     sent you for any questioning if you wish and I
     asked you if you understand each of these rights
     I’ve explained to you and you said, “yeah.” I
     said, having these rights in mind, do you wish
     to talk to us now and you said, “yeah.” I wrote
     your responses here next to the questions and I
     had you place your initials on the statement
     form. Do you recall doing that?

A:   Yeah.

Q:   Okay. Now Grady, we were talking to you
     about an attempted robbery that occurred up at
     the Shell gas station at 2120 Montana, which
     occurred on September 25, 1995 . . . about
     11:30 at night . . . ah, under . . . it’s reported
     under Oakland Police Department Report No.
     95-91681. And, we asked you where you’d
     been that day and you wanna tell us where you
     started off?

A:   No comment.

Q:   ‘Kay. Did you tell us that you were at your
     father’s house earlier in the day?

A:   No comment.

Q:   Grady, were you at the gas station?

A:   No comment.
11394                 ARNOLD v. RUNNELS
    Q:   Isn’t it true that you just finished telling us that
         you’ve never been to the gas station that —

    A:   No comment.

    Q:   — you never touched anything, and that you’ve
         never touched the gun? Is that true, Grady?

    A:   No comment.

    Q:   Grady, did you — you were telling us earlier
         that you wanted to give a statement, have you
         now changed your mind, Grady?

    A:   No comment.

    Q:   Do you want to give a statement or don’t you?

    A:   No comment, man.

    Q:   [other voice] So, Grady, what you’re saying . . .
         any question we ask you at this time you’re
         going to say no comment, is that correct?

    A:   No comment.

    Q:   No comment. Okay. Well, Grady, I’ll go ahead
         and conclude the interview here, it’s uh, 12:03.

   This tape recording was referred to by the prosecutor in his
opening statement, introduced into evidence, and highlighted
in the State’s closing argument.

                              III.

   The state courts unreasonably applied Fifth Amendment
law as established by the Supreme Court. The state courts and
the federal district court (“prior courts”) essentially ignored
                           ARNOLD v. RUNNELS                          11395
Arnold’s unequivocal statement that he did not want to talk on
tape. The prior courts did not hold that Arnold’s statement
was equivocal. They simply ignored the statement, instead
focusing entirely on Arnold’s “no comment” responses when
the interrogator turned the tape recorder on despite Arnold’s
clear statement that he didn’t want to talk on tape.5

   [1] Any reasonable application of the law must begin by
recognizing that Arnold clearly and unequivocally invoked
his Miranda rights selectively, with respect to a tape-recorded
interrogation. See Connecticut v. Barrett, 479 U.S. 523, 529
(1987) (holding that a suspect can selectively invoke Miranda
rights as to a written statement, but waive them as to oral
interrogation; and explaining that the words of a Miranda
request will be “understood as ordinary people would under-
stand them”). See also Michigan v. Mosley, 423 U.S. 96, 103-
04 (1975); Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988).
Any reasonable application of the law must recognize that
Arnold’s statement precluded the interrogator from turning on
the tape recording during the interrogation. See Miranda, 384
U.S. at 473-74 (“If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.”).
  5
    The state court of appeal noted that, “The sergeant then indicated that
he wanted to tape record appellant, and appellant stated that the [sic] did
not want to ‘talk on tape,’ ” but passed over this fact in silence. The fed-
eral district court fails even to mention this statement of Arnold’s,
although the court does refer to the court of appeal opinion as setting forth
the facts of the case.
   No prior decision in this case has explained why Arnold’s first state-
ment can be ignored. It may be that the prior courts operated under the
mistaken impression that immediately after invoking the right, Arnold
waived it. The state court of appeal stated that after the interrogator turned
on the tape recorder, “Appellant reiterated his waiver of Miranda rights.”
It is clear from the record, however, that there was no new waiver, but
merely a statement that at the beginning of the interrogation — before
Arnold said he didn’t want to talk on tape — he had signed a waiver card.
11396                     ARNOLD v. RUNNELS
   [2] The dissenting opinion reasons that Arnold’s invocation
of his Fifth Amendment right was not unambiguous, analogiz-
ing this case, as the prior courts did, to Davis v. United States,
512 U.S. 452 (1994), a case involving the invocation of the
right to counsel. We have considered, but reject, this argu-
ment. The Supreme Court noted in Davis that “a suspect need
not speak with the discrimination of an Oxford don.” Id.
(internal quotations marks and citation omitted). The words of
the request will be “understood as ordinary people would
understand them.” Barrett, 479 U.S. at 529. Thus, in applying
Davis, neither the Supreme Court nor this court has required
that a suspect seeking to invoke his right to silence provide
any statement more explicit or more technically-worded than
“I have nothing to say.”

   For example, applying Supreme Court case law, in United
States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001), we held
that the prosecution violated a defendant’s Fifth Amendment
right to silence under Miranda when it introduced at trial the
defendant’s post-arrest, pre-Miranda statement, “I have noth-
ing to say, I’m going to get the death penalty anyway.” Id. at
912.6 In Bushyhead, the government argued that Bushyhead
was not in fact silent, but rather, voluntarily chose to talk to
the agent. Id. We disagreed, reasoning that Bushyhead’s state-
ment constituted “the invocation of silence itself.” Id. Because
Bushyhead involved pre-Miranda silence, its reasoning
applies with even more force here, where the relevant state-
  6
   We are, of course, mindful of the fact that under 28 U.S.C. § 2254(d),
we cannot find constitutional error merely because a state court’s decision
conflicts with Ninth Circuit precedent. Our cases, however, “may be per-
suasive authority for purposes of determining whether a particular state
court decision is an ‘unreasonable application’ of Supreme Court law, and
also may help us determine what law is ‘clearly established.’ ” Duhaime
v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). It is in this light and
for this purpose that we discuss Ninth Circuit precedent.
                           ARNOLD v. RUNNELS                         11397
ments occurred after Arnold had been given his Miranda warn-
ings.7

   Indeed, we held, after Davis, that a suspect unequivocally
invoked his right to silence even when he responded affirma-
tively — when asked whether he desired to have his sworn
statement taken regarding his true citizenship and nationality
and his activity at the house — with, “Yes, regarding my . . .
citizenship.” United States v. Soliz, 129 F.3d 499, 504 (9th
Cir. 1997), overruled on other grounds by United States v.
Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc). We con-
cluded “that this statement constituted an unequivocal invoca-
tion of Soliz’s right to remain silent on all issues, except his
citizenship.” Id.

   [3] In contrast, just as in Davis, where a suspect’s request
for counsel is qualified with words such as “maybe” or
“might,” we have concluded that the suspect did not unam-
biguously invoke his right to counsel. Thus, in Clark v. Mur-
phy, 331 F.3d 1062 (9th Cir. 2003), we held that the state
court’s conclusion that “I think I would like to talk to a law-
yer” was not an unambiguous request for counsel was not
contrary to clearly established federal law. Id. at 1072. Simi-
larly, in United States v. Doe, 60 F.3d 544 (9th Cir. 1995), we
concluded that “maybe he ought to see an attorney” was not
a clear and unambiguous request for counsel. Id. at 546. See
also United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir.
1994) (contrasting statements qualified with words such as
“maybe” with Cheely’s unequivocal refusal to waive his right
to counsel).
  7
   The Supreme Court consistently has explained that “Miranda warnings
contain an implied promise, rooted in the Constitution, that ‘silence will
carry no penalty.’ ” Wainwright v. Greenfield, 474 U.S. 284 (1986) (quot-
ing Doyle v. Ohio, 426 U.S. 610, 618 (1976)); South Dakota v. Neville,
459 U.S. 553, 565 (1983) (explaining that Doyle rests on “the fundamental
unfairness of implicitly assuring a suspect that his silence will not be used
against him and then using his silence to impeach an explanation subse-
quently offered at trial”).
11398                      ARNOLD v. RUNNELS
   [4] Here, Arnold’s statement that he didn’t want to talk on
tape was neither ambiguous nor equivocal. Indeed, the inter-
rogating officer agreed that Arnold “was specific, he didn’t
want to talk on tape.” Unlike in Clark, there is no evidence
that Arnold qualified that statement with words of equivoca-
tion such as “maybe” or “I think.” Arnold’s statement wasn’t
so equivocal or unclear that “a reasonable officer in light of
the circumstances would have understood only that the sus-
pect might be invoking” his right to remain silent. Davis, 512
U.S. at 459 (emphasis in the original).

   [5] Indeed, it is difficult to imagine how much more clearly
a layperson like Arnold could have expressed his desire to
remain silent. See Barrett, 479 U.S. at 529 (explaining that the
words of a request for counsel will be “understood as ordinary
people would understand them”). Concluding that Arnold’s
statement was ambiguous and equivocal would suggest that a
suspect never invokes his right to silence unless he intones
some sort of talismanic phrase, such as “I invoke my right to
silence under the Fifth Amendment.” If the statements in
Bushyhead and Soliz constituted invocations of the right to
silence, then Arnold’s statement that he didn’t want to talk on
tape — which arguably was even less ambiguous than the
statements in those cases — likewise constituted an invoca-
tion of his right to silence.

   [6] In sum, even under the rule set forth in Davis, Arnold’s
statement that he didn’t want to talk on tape was clear and unam-
biguous.8 Arnold’s statements were tantamount to silence and
the admission of those statements was a violation of Arnold’s
Fifth Amendment privilege against self-incrimination. See
Doyle, 426 U.S. at 618; United States v. Velarde-Gomez, 269
F.3d 1023, 1032-33 (9th Cir. 2001) (en banc) (holding that
  8
    We have left open the question of whether the rule in Davis, which
involved the invocation of the right to counsel, applies equally to the invo-
cation of the right to silence. See Soliz, 129 F.3d at 504 n.3; Evans v.
Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996).
                      ARNOLD v. RUNNELS                   11399
evidence of suspect’s lack of physical or emotional reaction
when confronted with discovery of marijuana in his vehicle
was tantamount to evidence of silence).

   Any reasonable application of the law would then require
the government to establish that after saying he didn’t want to
talk on tape, Arnold waived the right he had, moments earlier,
invoked. See id. at 475. On this record, it would be objec-
tively unreasonable to determine that Arnold had waived his
right not to talk on tape, moments after invoking that right —
for no evidence supports such an assertion. The interrogating
officer did not testify that Arnold waived his right not to talk
on tape. More importantly, the transcript of the tape recording
— which, according to the officer, contains the Miranda
exchange in question — shows that Arnold did not waive that
right. As the prosecutor acknowledged in his opening state-
ment, this exchange was merely a reminder that Arnold had
previously been advised of his rights.

   [7] The sole fact the government could cite to establish that
Arnold waived his right not to talk on tape — if the prior
courts had held the government to its burden — is that, after
the interrogator turned on the tape recorder in clear violation
of Arnold’s unequivocally expressed right, Arnold said
“yeah” when the interrogator recited the time and place of the
interrogation and the fact of Arnold’s Miranda waiver of half
an hour earlier, and then said “no comment” and “no com-
ment, man” to every substantive question — including the
question, “Do you want to give a statement or don’t you?” It
beggars the imagination to suppose that these responses, when
the interrogator turned on the tape recording despite Arnold’s
clear statement that he didn’t want to talk on tape, show that
Arnold was waiving the right he had just invoked.

   [8] Additionally, to prove that Arnold waived his right not
to talk on tape, the government would have to show that such
a waiver was knowing and voluntary. See id. No such show-
ing is possible here. Arnold said he didn’t want to talk on
11400                     ARNOLD v. RUNNELS
tape. The interrogator responded by turning on the tape
recorder anyway. The officer’s action implied that Arnold had
no right to refuse to talk on tape. And in his summary, on
tape, of the Miranda warning he gave Arnold half an hour
earlier, the interrogator did not add the newly relevant fact
that Arnold had a right to refuse to talk on tape even though
he had earlier agreed to talk off-tape. Far from ensuring that
Arnold knew he had a right to refuse to talk on tape, the inter-
rogator’s actions emphatically implied that Arnold had no
such right.

   [9] Any reasonable application of the law must conclude
that Arnold’s responses during the tape-recorded interrogation
could not be used against Arnold at trial. See id. at 468 n.37.9

                                  IV.

   [10] Having decided that the state courts unreasonably
applied the law, we must now determine whether that error is
harmless under the Kotteakos harmless error standard, which
applies to non-constitutional error in cases on direct review
but also to constitutional error in cases on collateral review,
such as we have here. Brecht, 507 U.S. at 623. Under this
standard, error is harmless if we can say with fair assurance
that it did not have a substantial effect, injurious to the defen-
dant, on the jury’s decision-making process. See id. at 631;
Kotteakos, 328 U.S. at 765, 776.
   9
     Even on the question that the prior courts mistakenly focused on —
Did the “no comment” responses unequivocally invoke Miranda rights?
— the courts’ determinations are objectively unreasonable. Comparing
this case to Davis and United States v. Nordling, 804 F.2d 1466 (9th Cir.
1986), the prior courts took the phrase “no comment” from its context and
considered whether, in the abstract, “no comment” is unambiguous. But
we cannot ignore Arnold’s first statement, and we do not encounter “no
comment” in the abstract, divorced from any context. This case is there-
fore unlike Davis or Nordling. In those cases, the suspects being interro-
gated made no unambiguous statement like Arnold’s statement that he
didn’t want to talk on tape.
                      ARNOLD v. RUNNELS                   11401
   In applying this standard, we do not, of course, make fac-
tual findings drawing on testimony from the jurors concerning
their decision-making process. We conduct a de novo review
of the record. Brecht, 507 U.S. at 642 (Stevens, J., concur-
ring). Upon this review, we attempt to discern “what effect
the error . . . reasonably may be taken to have had upon the
jury’s decision[,]” bearing in mind that “[t]he crucial thing is
the impact of the thing done wrong on the minds of other men
[and women], not on [our] own, in the total setting.” Kot-
teakos, 328 U.S. at 764. See also Brecht, 507 U.S. at 643 (Ste-
vens, J., concurring). This Circuit has held that we employ our
judgment in this regard independently, “without benefit of
such aids as presumptions or allocated burdens of proof.”
Mancuso v. Olivarez, 292 F.3d 939, 950 n.4 (9th Cir. 2002).
“[I]f [we] cannot say, with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were
not affected.” Kotteakos, 328 U.S. at 765.

   At trial in this case, the prosecutor emphasized the impor-
tance of the improperly admitted tape recording, offering it as
evidence that Arnold is a liar and specifically that Arnold’s
claim of innocence in this case is a lie. In his opening state-
ment, the prosecutor stated:

       Well, Sergeant Aguirre decided that it was going
    to be Mr. Arnold’s statement and so he wanted to
    preserve it on the recording, on the tape. Sergeant
    Aguirre reached over and started to turn on the tape
    and Mr. Arnold said, “No, no, no, no, no, no, no. I’m
    not going to talk to you on the tape. I don’t want to
    be recorded.” Sergeant Aguirre told him, “Well, I’m
    going to record this anyhow, what you have to say,
    and preserve it on tape.”

      He started the tape recorder, he reminded Mr.
    Arnold that he had been advised of his rights, and
11402                 ARNOLD v. RUNNELS
    Mr. Arnold acknowledged that he had, and began to
    ask questions about what had occurred at the Shell
    station. Mr. Arnold’s response to every question on-
    tape was, “No comment, no comment.”

During summation, the prosecutor made the following com-
ments:

       So Mr. Arnold continues to deny and deny and
    deny and deny. And Sergeant Aguirre decides he
    wants to go in and memorialize that denial on tape.
    Big red flag, tape recording. I don’t want nothing on
    tape. I don’t want nothing reported. As long as it’s
    just Grady’s words against Sergeant Aguirre, he
    feels like they’re not going to believe him. When
    they start putting it on tape, you realize you better be
    careful what you say because it’s preserved forever.
    So I don’t want to do that because I’m afraid,
    because I know that I’m lying and I don’t want my
    reply recorded because at some point in the future I
    might be able to cook up some good story.

       So what happened with [sic] when Sergeant
    Aguirre goes on tape? No comment. Ever gone to
    that gas station? No comment. He knows it. He
    knows his business. No comment.

   [11] Any effect the recording could have on the jury’s
decision-making process could only be injurious to Arnold.
And given the prosecutor’s emphasis on the tape in both his
opening statement and his closing argument, we cannot say
with fair assurance that the tape recording did not have a sub-
stantial injurious effect on the jury’s decision-making process.

   The government argues that the error in admitting the tape
recording was harmless “because the evidence of guilt was
compelling,” that “the State presented devastating evidence
directly connecting [Arnold] to [the crime].” The govern-
                        ARNOLD v. RUNNELS                      11403
ment’s argument misapprehends the Kotteakos harmless error
standard.10 The question posed for us by that standard is not
whether the evidence was sufficient or whether the jury would
have decided the same way even in the absence of the error.
The question is whether the error influenced the jury. See Kot-
teakos, 328 U.S. at 763-65; Brecht, 507 U.S. at 642-43 (Ste-
vens, J., concurring).

   [12] In some circumstances, as in Brecht itself, we can say
with fair assurance that though there was error, it did not sub-
stantially influence the jury. Where the prosecutor specifically
emphasizes in his opening statement and his closing argument
evidence admitted in violation of a defendant’s Fifth Amend-
ment rights, we cannot say that evidence had no substantial
influence upon the jury.

   [13] Additionally, the instruction on adoptive admissions
given to the jury — an instruction referring to statements
admitted in violation of Arnold’s Fifth Amendment privilege
— further persuades us that the erroneous admission of
Arnold’s statements substantially affected the jury. Where a
defendant’s failure to reply is based on his constitutional right
to remain silent, instructing the jury that it can treat the failure
to reply as an adoptive admission violates the Fifth Amend-
ment. Griffin v. California, 380 U.S. 609, 613 (1965); Frank-
lin v. Duncan, 70 F.3d 75, 76-77 (9th Cir. 1995) (concluding
that prosecutor’s reference to defendant’s post-Miranda
silence and trial court’s instructions that jury could construe
defendant’s silence as adoptive admission of truth of direct
accusation violated defendant’s Fifth Amendment privilege
against self-incrimination).

   [14] Here, the jury instruction stated that the defendant’s
silence, “in the face of an accusation . . . charging [the defen-
  10
    While the point does not determine whether the error was harmless,
we do not accept the government’s characterization of the evidence
against Arnold as “compelling” or “devastating.”
11404                 ARNOLD v. RUNNELS
dant] with the crime for which [he] is now on trial or tending
to connect him with its commission . . . may be considered
against him as indicating an admission that the accusation
thus made was true.” See Cal. Jury Instruction — Crim.
2.71.5. Arguably, the interrogating officer’s questions “tend-
[ed] to connect” Arnold with the commission of the crime for
which he was convicted — the questions mentioned the time
and location of the robbery, and asked whether Arnold had
stated he had never been to that gas station and never touched
the gun. By following the instruction on adoptive admission,
the jury would have treated Arnold’s silence as an admission
of the truth of the officer’s accusations. Whether Arnold’s
tape-recorded statement had a “substantial and injurious effect
or influence in determining the jury’s verdict,” Brecht, 507
U.S. at 623, depends in part on how much weight the jury
gave the adoptive admission under the trial court’s instruc-
tions. Given the adoptive admission instruction and the prose-
cution’s stressing of Arnold’s silence both in its opening
statement and in its closing arguments, we cannot say with
fair assurance that the state trial court’s erroneous admission
of Arnold’s tape-recorded statement did not have a substantial
and injurious effect upon the jury’s verdict.

                              V.

   [15] Because the state courts unreasonably applied Fifth
Amendment law clearly established by the Supreme Court,
and the error was not harmless, we reverse the decision of the
district court. We direct that a conditional writ of habeas cor-
pus issue, requiring the State of California to release Arnold
from custody in this case, unless it grants him a new trial to
commence within a reasonable period of time to be deter-
mined by the district court.

  REVERSED and REMANDED with directions.
                          ARNOLD v. RUNNELS                         11405
CALLAHAN, Circuit Judge, dissenting:

   I respectfully dissent.

   The state courts did not unreasonably apply clearly estab-
lished federal law. “[C]learly established Federal law under
[28 U.S.C. § 2254(d)(1)] is the governing legal principle or
principles set forth by the Supreme Court at the time the state
court renders its decision.” Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). In Lockyer, the Supreme Court held, “[a] state
court decision is contrary to our clearly established precedent
if the state court applies a rule that contradicts the governing
law set forth in our cases or if the state court confronts a set
of facts that are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result different from
our precedent.” Id. at 73 (citations omitted).

   Here, the state courts relied on Davis v. United States, 512
U.S. 452 (1994), in determining that Arnold did not unam-
biguously invoke his right to silence. Even though Davis deals
with invoking the right to counsel, the government posits that
it should extend to cases involving the right to silence because
there appears to be no Supreme Court decision directly on
point regarding the right to silence. Although the Ninth Cir-
cuit left this question open in Evans v. Demosthenes, 98 F.3d
1174, 1176 (9th Cir. 1996), several of our sister circuits have
extended Davis to cases involving the right to silence.1

   Davis is instructive here because the factual circumstances
in this case are similar. In both cases, the question is whether
the suspect invoked Fifth Amendment rights such that police
  1
    E.g., James v. Marshall, 322 F.3d 103, 107 (1st Cir. 2003); Simmons
v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001); United States v. Hurst,
228 F.3d 751, 759-60 (6th Cir. 2000); United States v. Mikell, 102 F.3d
470, 476-77 (11th Cir. 1996); United States v. Banks, 78 F.3d 1190, 1197-
98 (7th Cir.), vacated on other grounds by Mills v. United States, 519 U.S.
990 (1996).
11406                     ARNOLD v. RUNNELS
were required to stop their custodial interrogation. The major-
ity cites no Supreme Court decision directly on point regard-
ing invocation of the right to silence. Accordingly, the state
courts’ reliance on Davis for guidance in this case was reason-
able. This is all that needs to be decided under the applicable
AEDPA standard.

   I would also find that the state courts’ determination that
Arnold did not unambiguously invoke the right to silence was
objectively reasonable in light of the evidence presented.
Arnold’s “no comment” responses were objectively ambigu-
ous. Indeed, when the interrogating officers asked Arnold on
tape whether he had changed his mind about giving a state-
ment, instead of simply answering “yes,” he responded “no
comment.” This response is ambiguous, much like Davis’s
comment, “Maybe I should talk to a lawyer.” Davis, 512 U.S.
at 455.

   In determining whether Fifth Amendment rights were
invoked, “likelihood” is not enough. Id. at 459. A “law
enforcement officer may continue questioning until and
unless the suspect clearly requests” to invoke his Miranda
rights. Id. at 461. “The Edwards rule seeks to ‘maintain a deli-
cate balance between ensuring that suspects are properly insu-
lated against police overreaching while allowing the law
enforcement community to perform its duties effectively.’ ”
Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003), cert.
denied, 540 U.S. 968 (2003) (quoting Smith v. Endell, 860
F.2d 1528, 1537 (9th Cir. 1988)).2 Here, the state courts rea-
sonably determined that Arnold did not unequivocally invoke
his Fifth Amendment right to silence.

  Even if the state courts erred, however, such error was
  2
    In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held
that if a suspect requests counsel at any time during the interview, he is
not subject to further questioning until a lawyer has been made available
or the suspect himself reinitiates conversation. Id. at 484-85.
                      ARNOLD v. RUNNELS                    11407
harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).
The jury received the following evidence against Arnold: (1)
Arnold’s fingerprints were found on the window of the cash-
ier’s booth where the attempted robbery occurred; (2) Arnold
told the primary interrogator, Sergeant Aguirre, (before being
informed of the fingerprint evidence) that he had never been
to the station “in his entire life,” despite multiple attempts to
adduce from him possible reasons why he might have been
there; (3) Williams, who was with Arnold on the night in
question, had already been convicted and had served time for
the attempted robbery by the time he testified (i.e., he had
nothing to lose by implicating himself and another mysterious
participant instead of Arnold); and, (4) Williams testified that
(a) he was dating Arnold’s sister, (b) he did not want to testify
against Arnold, and (c) Arnold approached the booth and tried
to buy cigarettes on the night of the attempted robbery.
Finally, when Arnold and Williams were arrested just hours
after the attempted robbery, officers found a gun that was bal-
listically matched to the gun fired during the incident.

   The majority suggests that whether Arnold’s tape-recorded
statement had a “substantial and injurious effect” on the jury’s
verdict depends in part on how much weight the jury gave the
adoptive admission instruction. Arnold’s defense, however,
did not rest solely on his silence — he produced three wit-
nesses who said he was not at the gas station when the
attempted robbery occurred. Nevertheless, his defense was
seriously undermined by the fact that Williams changed his
story twice after telling Sergeant Aguirre that Arnold had
actively planned and participated in the robbery, Williams
was an admitted heroin addict, and Williams admitted that he
had lied to the police regarding the events in question. Addi-
tionally, there was no evidence calling into question Sergeant
Aguirre’s testimony regarding the statement that Arnold vol-
untarily made before officers turned on the tape recorder.

  The evidence to convict was overwhelming, notwithstand-
ing Arnold’s “no comment” responses. The error, if any, in
11408                 ARNOLD v. RUNNELS
admitting the tape, was unlikely to have had a substantial and
injurious effect or influence in determining the jury’s verdict.
For these reasons, I would affirm the district court’s denial of
habeas relief.
