                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 TIO DINERO SESSOMS,                         No. 08-17790
       Petitioner-Appellant,
                                             D.C. No.
                v.                   2:05-cv-01221-JAM-GGH

 RANDY GROUNDS, Warden,                  ORDER AND
     Respondent-Appellee.              AMENDED OPINION


     On Remand from the United States Supreme Court

              Argued and Submitted En Banc
         March 18, 2014—San Francisco, California

                     Filed September 22, 2014
                     Amended January 23, 2015

    Before: Alex Kozinski, Chief Judge, and Mary M.
 Schroeder, Barry G. Silverman, M. Margaret McKeown,*
 Kim McLane Wardlaw, Raymond C. Fisher, Richard A.
Paez, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S.
       Ikuta and Mary H. Murguia, Circuit Judges.

                            Order;
                Opinion by Judge McKeown;
               Dissent by Chief Judge Kozinski;

 *
   Judge McKeown was drawn to replace Judge B. Fletcher following her
death shortly after the initial en banc decision.
2                     SESSOMS V. GROUNDS

                   Dissent by Judge Callahan;
                   Dissent by Judge Murguia


                           SUMMARY**


                          Habeas Corpus

   The en banc court amended a September 22, 2014,
opinion filed on remand from the United States Supreme
Court, and denied a petition for rehearing, in a 28 U.S.C.
§ 2254 habeas corpus case in which Tio Dinero Sessoms
challenged his conviction of murder, robbery, and burglary.

    The en banc court reversed the district court’s judgment
denying the habeas petition and remanded with instructions
to grant a conditional writ directing the State of California to
retry Sessoms within a reasonable time or release him.

    The en banc court held that the California Court of
Appeal’s conclusion that Sessoms did not make an
unequivocal or unambiguous request for an attorney as
required under Davis v. United States, 512 U.S. 452 (1994),
was an unreasonable application of Supreme Court precedent
as it existed at the time of the Court of Appeal’s
determination.

   The en banc court reconsidered the case in light of Salinas
v. Texas, 133 S. Ct. 2174 (2013), which involved a
noncustodial interrogation, and which suggests that Davis’s

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

requirement of an unambiguous invocation of a right to
counsel applies to pre-Miranda statements. The en banc
court observed that this case, in contrast, involves a custodial
interrogation in which the defendant should have been
informed of his rights before he could knowingly waive
them, but nevertheless assumed that the clear invocation
requirement of Davis applies to Sessoms. With this
requirement clearly in mind, the en banc court held that,
under the circumstances, a reasonable law enforcement
officer would have understood Sessoms’s statements as an
unambiguous request for counsel, which should have cut off
any further questioning under clear Supreme Court precedent.

   The en banc court concluded that because Sessoms’s
confession likely substantially swayed the jury toward
conviction, the constitutional error was not harmless.

    Reluctantly dissenting, Chief Judge Kozinski wrote that
what the court must decide is not what Sessoms meant or the
officers understood, but whether it was unreasonable for the
state courts to conclude that a reasonable officer would have
been perplexed as to whether Sessoms was asking for an
attorney.

    Dissenting, Judge Callahan wrote separately to stress
that she reads the Supreme Court’s remand as precluding
the majority’s conclusion that Sessoms’s comments were so
unambiguous as to render the California Court of Appeal’s
opinion unreasonable.

    Judge Murguia, joined by Chief Judge Kozinski and
Judges Silverman, Callahan, and Ikuta, dissented. Judge
Murguia could not say, under the deference mandated by
the AEDPA, that it was objectively unreasonable for the
4                  SESSOMS V. GROUNDS

California Court of Appeal to hold that a police officer could
have interpreted Sessoms’s statement as merely a possible
request for a lawyer, which would not require the officer to
stop the interrogation.


                        COUNSEL

Eric Weaver (argued), Albany, California, for Petitioner-
Appellant.

Jeffrey Firestone (argued), Deputy Attorney General; Kamala
D. Harris, Attorney General of California; Michael P. Farrell,
Senior Assistant Attorney General; and Charles A. French,
Supervising Deputy Attorney General, Sacramento,
California, for Respondent-Appellee.

Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley
Austin LLP, Washington, D.C.; Mark E. Haddad and Douglas
A. Axel, Sidley Austin LLP, Los Angeles, California; and
David M. Porter, Office of the Federal Defender, Sacramento,
California, for Amicus Curiae National Association of
Criminal Defense Lawyers.
                      SESSOMS V. GROUNDS                              5

                              ORDER

   The opinion filed on September 22, 2014, is amended.
The amended opinion is filed concurrently with this order.

    With these amendments, the panel has voted to deny the
petition for rehearing.

    The petition for rehearing is DENIED. No further
petitions for rehearing or rehearing en banc will be
entertained.



                             OPINION

Opinion by McKEOWN, Circuit Judge, joined by
SCHROEDER, WARDLAW, FISHER, PAEZ and M.
SMITH, Circuit Judges:

    An American poet wrote more than 100 years ago: “When
I see a bird that walks like a duck and swims like a duck and
quacks like a duck, I call that bird a duck.”1 When a suspect
says “give me a lawyer,” that request walks, swims, and
quacks like a duck. It is an unambiguous request for a
lawyer, no matter how you slice it. The statement is



   1
     This quotation is often attributed to James Witcomb Riley, an
American poet. Max Cryer, Who Said That First? The Curious Origins
of Common Words and Phrases 139 (2001); see In re Fletcher, 489 B.R.
224, 235 & n.36 (Bankr. N.D. Okla. 2013). It has also been attributed to
Walter Reuther. Hugh Rawson and Margaret Miner, The Oxford
Dictionary of American Quotations 237 (2006).
6                     SESSOMS V. GROUNDS

unequivocal—it is not a maybe or a perhaps—it is an
invocation of the Fifth Amendment right to counsel.

    In late 1999, a naive and relatively uneducated nineteen-
year-old Tio Sessoms sat alone in an eight-by-ten foot
interrogation room. Four days earlier, on the advice of his
father, Sessoms had turned himself in to the police. Before
doing so, Sessoms’s father told his son: you must ask for a
lawyer before talking to the police.

    Sessoms followed his father’s advice. When the two
police detectives entered the interrogation room, Sessoms sat
slouched in his chair. He looked up, and they exchanged
brief pleasantries. Sessoms was unfailingly polite, even
saying he was glad the detectives “had a safe flight.” Forty
seconds after the detectives entered the room, the following
exchange occurred:

         Sessoms:          There wouldn’t be any
                           possible way that I could have
                           a—a lawyer present while we
                           do this?

         Det. Woods: Well, uh, what I’ll do is, um—

         Sessoms:          Yeah, that’s what my dad
                           asked me to ask you guys . . .
                           uh, give me a lawyer.2



    2
    The transcript of the colloquy says “give me a lawyer,” but, after
comparing the transcript to the videotape, Detective Woods testified that
Sessoms said “[g]et me a lawyer.” This minor distinction is not material
to our analysis.
                   SESSOMS V. GROUNDS                       7

    Instead of immediately ceasing the interrogation, the
detectives carried on, convinced Sessoms that his
accomplices had already told them what had happened, and
impressed upon Sessoms that the only way to tell his side of
the story was to speak to the officers then and there, without
an attorney. Only after talking with him, softening him up,
and warning him about the various “risks” of speaking with
counsel did the detectives read Sessoms his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Unsurprisingly,
Sessoms agreed to talk and made incriminating statements.

    Sessoms was convicted of murder, robbery, and burglary,
and sentenced to life without the possibility of parole. We
consider his habeas appeal under the “demanding but not
insatiable” standard of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Miller-El v. Dretke,
545 U.S. 231, 240 (2005). The California Court of Appeal
concluded that Sessoms’s request was not an unequivocal or
unambiguous request for an attorney as required under Davis
v. United States, 512 U.S. 452 (1994). Because this
conclusion was an unreasonable application of Supreme
Court precedent as it existed at the time of the Court of
Appeal’s determination, we reverse the district court’s denial
of the petition for a writ of habeas corpus and remand with
instructions to grant a conditional writ of habeas corpus with
directions that the State retry Sessoms within a reasonable
period or release him. See 28 U.S.C. § 2254(d)(1).

       BACKGROUND AND PROCEDURAL HISTORY

I. THE INTERROGATION

   On October 20, 1999, Sessoms and two others burglarized
Edward Sheriff’s home in Sacramento, California. During
8                      SESSOMS V. GROUNDS

the burglary, one of Sessoms’s accomplices repeatedly
stabbed Sheriff, resulting in Sheriff’s death.

    Sessoms then fled from California to Oklahoma. When he
became aware that there was a warrant out for his arrest, and
after having discussed the situation with his father, Sessoms
surrendered to Oklahoma police on November 15, 1999. His
father advised him to ask for a lawyer before talking to the
police.

    Two detectives, Woods and Keller, flew from California
to Oklahoma to question Sessoms on November 20, 1999, at
the county jail where he was being held. Sessoms was in
custody for at least four days before he was interrogated.

    Before the officers entered the interrogation room,
Sessoms sat alone, and quietly said to himself, “I’m not a
criminal . . . . They didn’t tell me if I have a lawyer. I know
I want to talk to my lawyer now.”3 When the detectives
entered the room, the following exchange took place:

         Det. Woods: . . . Tio, I’m Dick.

         Sessoms:           How you doing, all right. You
                            already know me.

         Det. Woods: You say—


    3
     Sessoms’s statements to himself were made prior to the detectives
entering the room, and there is no evidence that the detectives heard these
statements. We, therefore, do not rely on these statements as part of the
context relevant to whether a reasonable law enforcement officer would
have understood Sessoms’s statements as unambiguous requests for
counsel.
           SESSOMS V. GROUNDS                   9

Det. Keller:   Tio, Pat Keller.

Det. Woods: You say Tio or Theo?

Sessoms:       It—my name is pronounced
               Tio because it’s [S]panish.

Det. Woods: Tio. Okay.

Det. Keller:   Why don’t we swap corners
               here for a minute, you guys?
               Go ahead and sit here.

Sessoms:       So glad you fellows had a safe
               flight.

Det. Woods: Huh?

Sessoms:       I’m glad you fellows had a
               safe flight out here.

Det. Keller:   So are we. Huh.

Det. Woods: Well, we want a safe one back
            too.

Sessoms:       Oh, you know ([i]naudible).

Det. Woods: Yeah. Uh, we both, uh—both
            from, uh, Sacramento PD and,
            uh—

Sessoms:       There wouldn’t be any
               possible way that I could have
10                 SESSOMS V. GROUNDS

                       a—a lawyer present while we
                       do this?

       Det. Woods: Well, uh, what I’ll do is, um—

       Sessoms:        Yeah, that’s what my dad
                       asked me to ask you guys . . .
                       uh, give me a lawyer.

    Woods proceeded as though Sessoms had said nothing.
Instead of ending the interrogation, Woods persuaded
Sessoms that having a lawyer was a bad idea. Sessoms
explained that he was concerned that some police officers
“end up switching your words afterwards,” to which Woods
responded that he had no intention of playing any “switch
games.” Woods even produced a tape recorder to allay
Sessoms’s fears. As it turns out, the session was videotaped
from the outset.

    Woods then explained the situation: Sessoms and two
accomplices were all being “charged with the same thing.”
Woods said he already knew “what happened” because the
accomplices had waived their rights “and laid it out from A
to Z.” Woods reassured Sessoms that he believed that
Sessoms “did not participate in the stabbing,” but warned that
if Sessoms didn’t make a statement right then and there,
Woods wasn’t going to be able to “get his version of it”
because “most all attorneys—in fact, all attorneys will—will
sometimes or usually advise you not to make a statement.”
Woods said he didn’t really “need [Sessoms’s] statement to
make [the] case” anyway because he “already [had] two and
a half other complete statements,” reiterating that he already
“[knew] what happened” and had the hard evidence to back
it up.
                       SESSOMS V. GROUNDS                             11

    Only then—after telling Sessoms that having a lawyer
would only hurt him and that invoking his right to counsel
would be futile because the police already knew what had
happened—did Woods read Sessoms his rights under
Miranda. Sessoms hesitated, shrugged his shoulders, and
said, “[l]et’s talk,” proceeding to implicate himself in the
crime.

II. PROCEEDINGS IN THE CALIFORNIA COURTS

    Before trial, Sessoms moved to suppress the incriminating
statements arguing that they were obtained in violation of
Miranda because he had “clearly and unequivocally” invoked
his right to counsel. The trial court denied the motion.
Sessoms went to trial and was convicted of first-degree
murder, robbery, and burglary, with the special circumstance
that he was engaged in the commission or attempted
commission of the crimes of robbery and burglary when the
murder occurred. At the conclusion of the trial, Sessoms
moved for a new trial “based upon prejudicial Miranda
error,” renewing the objections he had made in his pretrial
motion. The trial court denied the motion. Sessoms was
sentenced principally to life in prison without the possibility
of parole.

    Sessoms appealed to the California Court of Appeal,
which determined that Sessoms’s statements did not qualify
as an invocation of the right to counsel under Davis, 512 U.S.
452.4 It found that “although [Sessoms] twice explicitly
referred to an attorney, neither statement was an unequivocal


 4
   The California Court of Appeal’s opinion is “the last reasoned opinion”
in this matter for purposes of AEDPA. Ylst v. Nunnemaker, 501 U.S. 797,
803 (1991); see Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).
12                    SESSOMS V. GROUNDS

or unambiguous request for counsel.” People v. Sessoms, No.
C041139, 2004 WL 49720, at *3 (Cal. Ct. App. Jan. 12,
2004). According to the Court of Appeal, Sessoms’s first
statement was “legally indistinguishable” from the statements
made in Davis, 512 U.S. at 455 (“Maybe I should talk to a
lawyer”) and People v. Crittenden, 9 Cal. App. 4th 83,
123–24 (1994) (“Did you say I could have a lawyer?”), which
were not unequivocal requests for an attorney. Id. Sessoms’s
second statement, the court continued, was also not an
unequivocal request for an attorney, but “[a]t best . . . a
statement of his father’s advice to him.” Id. Ultimately, the
Court of Appeal concluded that Sessoms’s statements were
not “sufficiently clear[] that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.” Id. (quoting Davis, 512 U.S. at 459)
(alteration in original) (internal quotation marks omitted).

III.     PROCEEDINGS IN THE FEDERAL COURTS

    After exhausting his state court remedies, Sessoms filed
a federal habeas petition, arguing primarily that he had
invoked his right to counsel.          A magistrate judge
recommended denying the petition. The district court
adopted the magistrate judge’s findings and recommendations
and denied the petition, but granted a certificate of
appealability on the Miranda and ineffective assistance of
counsel claims.5




     5
      The ineffective assistance of counsel claim arose from counsel’s
“fail[ure] to investigate and present evidence that [Sessoms’s]
constitutional rights were violated by Sacramento Detectives Woods and
Keller during his interrogation.”
                    SESSOMS V. GROUNDS                       13

    A divided three-judge panel of this court upheld the
district court’s denial of Sessoms’s habeas petition. Sessoms
v. Runnels, 650 F.3d 1276, 1283 (9th Cir. 2011). The
majority held that “[b]ecause Sessoms’s statements were
made prior to his Miranda waiver, Davis cannot apply as
‘clearly established Federal law’ in this case.” Id. at 1283.
But the majority held that it was not unreasonable for the
state court to require an unambiguous request for counsel and
concluded that Sessoms’s request was ambiguous. Id. at
1284–89.

    We granted rehearing en banc. In an opinion authored by
Judge B. Fletcher, the majority concluded that the state
court’s decision was an unreasonable application of clearly
established federal law and reversed the district court’s denial
of habeas relief. Sessoms v. Runnels, 691 F.3d 1054, 1064
(9th Cir. 2012) (en banc), cert. granted, judgment vacated sub
nom. Grounds v. Sessoms, 133 S. Ct. 2886 (2013). The
majority reasoned that Davis’s requirement that a request for
counsel be unambiguous applies only after a suspect has been
informed of his Miranda rights, and thus granted a
conditional writ of habeas corpus. Id. at 1060–63. The
majority also noted that Sessoms “clearly expresse[d] his
desire for an attorney.” Id. at 1063.

     The Supreme Court granted the state’s petition for a writ
of certiorari, vacated the decision, and remanded the case in
light of Salinas v. Texas, 133 S. Ct. 2174 (2013). Sessoms,
133 S. Ct. 2886. Following supplemental briefing, the en
banc panel heard oral argument. We now reconsider this case
in light of Salinas, which suggests, contrary to the reasoning
of the first en banc court, that Davis’s requirement of an
unambiguous invocation of a right to counsel applies to
pre-Miranda statements. Although Salinas points in that
14                    SESSOMS V. GROUNDS

direction, it involved a noncustodial interrogation. Salinas,
133 S.Ct. at 2183. Indeed, Justice Alito’s plurality opinion
stressed that the noncustodial nature of the interview placed
the “petitioner’s situation outside the scope of Miranda.” Id.
at 2180. This case, in contrast, involves a custodial
interrogation in which the defendant should have been
informed of his rights before he could knowingly waive them.
 See Miranda, 384 U.S. at 467–68. We nevertheless assume
that the clear invocation requirement of Davis applies to
Sessoms. With this requirement clearly in mind, we hold
that, under the circumstances, a reasonable law enforcement
officer would have understood Sessoms’s statements as an
unambiguous request for counsel, which should have cut off
any further questioning under clear Supreme Court
precedent.6

                              ANALYSIS

I. MIRANDA AND ITS PROGENY

    Our analysis begins with the landmark case of Miranda
v. Arizona, which established certain safeguards that must be
afforded to suspects, including the right to have counsel
present during a custodial interrogation. The Supreme Court
refined its analysis of the Miranda right to counsel in a series
of cases including, as relevant here, Edwards v. Arizona,
451 U.S. 477 (1981); Smith v. Illinois, 469 U.S. 91 (1984)
(per curiam); Davis, 512 U.S. 452; Berghuis v. Thompkins,
560 U.S. 370 (2010); and, most recently, Salinas, 133 S. Ct.
2174.



  6
    Because we conclude that Sessoms is entitled to relief on his Miranda
claim, we do not address his ineffective assistance of counsel claim.
                    SESSOMS V. GROUNDS                        15

    In Miranda, the Supreme Court established rules that law
enforcement must follow to ensure certain “basic” and
“precious” rights “enshrined in our Constitution.” 384 U.S.
at 442. These rights include the Fifth Amendment’s
guarantee that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const.
amend. V. One of the Court’s primary concerns in Miranda
was the temptation for law enforcement officers, operating
with little or no supervision over their investigative actions,
to overbear the will of a defendant in an isolated custodial
interrogation setting. 384 U.S. at 461, 466. The Fifth
Amendment privilege “protect[s] persons in all settings in
which their freedom of action is curtailed in any significant
way from being compelled to incriminate themselves.” Id. at
467.

    The Court wrote that “[a]n understanding of the nature
and setting of [an] in-custody interrogation is essential” to its
decisions in Miranda. Id. at 445. Stressing that “the modern
practice of in-custody interrogation is psychologically rather
than physically oriented,” id. at 448, the Court explained that
“the very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals.”
Id. at 455. “The Court in Miranda presumed that
interrogation in certain custodial circumstances is inherently
coercive and . . . that statements made under those
circumstances are inadmissible unless the suspect is
specifically warned of his Miranda rights and freely decides
to forgo those rights.” Duckworth v. Eagan, 492 U.S. 195,
202 (1989) (internal quotation marks omitted).

   To ensure that the use of such psychological tactics to
exploit a suspect’s vulnerabilities do not run afoul of the Fifth
Amendment, Miranda set a clear bright-line rule: “Prior to
16                 SESSOMS V. GROUNDS

any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may
be used as evidence against him, and that he has a right to the
presence of an attorney. . . .” Id. at 444. If a suspect
“indicates in any manner and at any stage of the process that
he wishes to consult with an attorney,” all questioning must
cease. Id. at 444–45. The Court presciently captured the
importance of timing: “a warning at the time of the
interrogation is indispensable to overcome its pressures and
to ensure that the individual knows he is free to exercise the
privilege at that point at time.” Id. at 469. The Court
underscored the importance of giving the Miranda warnings
at the outset of an interrogation “to insure that what was
proclaimed in the Constitution had not become but a form of
words in the hands of government officials.” Id. at 444
(internal citation and quotation marks omitted); see Alvarez
v. Gomez, 185 F.3d 995, 997 (9th Cir. 1999) (“Under
Miranda, a person in custody must be informed before
interrogation that he has a right to remain silent and to have
a lawyer present.” (emphasis added)).

    Fifteen years later, in Edwards v. Arizona, the Supreme
Court reiterated the principle that the “assertion of the right
to counsel [is] a significant event and that once exercised by
the accused, ‘the interrogation must cease until an attorney is
present.’” 451 U.S. at 485 (quoting Miranda, 384 U.S. at
474). Edwards makes clear that Miranda’s protections
endure from the moment of invocation until the time the
suspect is provided with counsel. The Court simply
“reconfirm[ed]” that a suspect, “having expressed his desire
to deal with the police only through counsel,” must not be
“subject to further interrogation by the authorities until
counsel has been made available to him.” Id. at 484–85. Of
particular relevance here, the Edwards rule is “designed to
                   SESSOMS V. GROUNDS                       17

prevent police from badgering a defendant into waiving his
previously asserted Miranda rights,” Michigan v. Harvey,
494 U.S. 344, 350 (1990), and to ensure that officers “will not
take advantage of the mounting coercive pressures of
prolonged police custody,” Maryland v. Shatzer, 559 U.S. 98,
105 (2010) (internal quotation marks omitted); see New York
v. Quarles, 467 U.S. 649, 654 (1984). Taken together, “[t]he
purpose of the Miranda–Edwards guarantee” is to protect
“the suspect’s desire to deal with the police only through
counsel.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)
(internal quotation marks omitted).

    The Court applied the principles of Miranda and Edwards
just three years later in Smith. Eighteen-year-old Smith was
taken into custody for interrogation, and the officers
immediately gave him the Miranda warnings. Smith,
469 U.S. at 92–93. In the course of advising Smith of his
rights, the officers stated: “You have a right to consult with
a lawyer and to have a lawyer present with you when you’re
being questioned. Do you understand that?” Id. at 93. Smith
responded: “Uh, yeah. I’d like to do that.” Id. (emphasis
omitted). Rather than ceasing questioning, the officers
pressed on:

       Q. Do you wish to talk to me at this time
          without a lawyer being present?

       A. Yeah and no, uh, I don’t know what’s
          what, really.

       Q. Well. You either have [to agree] to talk to
          me this time without a lawyer being
          present and if you do agree to talk with
18                 SESSOMS V. GROUNDS

           me without a lawyer being present you
           can stop at any time you want to.

       Q. All right. I’ll talk to you then.

Id. Smith proceeded to make incriminating statements. Id.

    The Court reasoned that the Illinois Supreme Court erred
“by looking to Smith’s subsequent responses to continued
police questioning”—namely, his statements that he didn’t
“know what’s what, really”—to inform its holding that
Smith’s initial requests for counsel were ambiguous. Id. at
97. Questioning should have ceased after the first request for
counsel, which the officers ignored, because the
statement—“Uh, yeah, I’d like to do that”—“was neither
indecisive nor ambiguous.” Id. The Court emphasized that
the Edwards “bright-line rule that all questioning must cease
after an accused requests counsel” intends to prevent “the
authorities through badger[ing] or overreaching—explicit or
subtle, deliberate or unintentional—[from] otherwise
wear[ing] down the accused and persuad[ing] him to
incriminate himself notwithstanding his earlier request for
counsel’s assistance.” Id. at 98.

    The Supreme Court revisited the scope of Miranda and
Edwards in Davis. During a custodial interview with the
Naval Investigative Service, Davis executed a written waiver
of his rights and expressly agreed to speak to law
enforcement. Davis, 512 U.S. at 454–55. Only after being
questioned for ninety minutes did Davis utter the words
“[m]aybe I should talk to a lawyer.” Id. at 455. Mirroring its
teachings in Miranda and Edwards, the Court reaffirmed the
fundamental principle that “if a suspect requests counsel at
any time during [a custodial] interview, he is not [to be]
                   SESSOMS V. GROUNDS                       19

subject to further questioning until a lawyer has been made
available or the suspect himself reinitiates conversation.” Id.
at 458 (citing Edwards, 451 U.S. at 484–85).

    The Court went on to clarify, however, that “if a suspect
makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect
might be invoking the right to counsel, our precedents do not
require the cessation of questioning.” Id. at 459. “[T]he
suspect must unambiguously request counsel.” Id. The Court
explained the reasoning behind this requirement as follows:

       A suspect who knowingly and voluntarily
       waives his right to counsel after having that
       right explained to him has indicated his
       willingness to deal with the police unassisted.
       Although Edwards provides an additional
       protection—if a suspect subsequently requests
       an attorney, questioning must cease—it is one
       that must be affirmatively invoked by the
       suspect.

Id. at 460–61 (emphasis added). The statement, “[m]aybe I
should talk to a lawyer,” was not an unambiguous or
unequivocal request for counsel in light of Davis’s prior
waiver of that same right. Id. at 462.

    More recently, in Berghuis and Salinas, the Court
considered the significance of silence in the Miranda context.
In Berghuis, after being informed of his Miranda rights, the
suspect refused to sign a waiver form and simply remained
silent through almost three hours of interrogation before
making an incriminating statement. See 560 U.S. at 374–76.
20                  SESSOMS V. GROUNDS

In concluding that the suspect never invoked his right to
silence, the Court echoed its holding in Davis that an
invocation of the right to remain silent, like the right to
counsel, must be unambiguous. Id. at 381–82. The Court
wrote, not without significance, that it need not “add
marginally” to Miranda’s prophylactic protections by
“[t]reating an ambiguous . . . statement as an invocation of
Miranda rights,” because “full comprehension of the rights to
remain silent and request an attorney are sufficient to dispel
whatever coercion is inherent in the interrogation process.”
Id. at 382. (citations omitted). This conclusion mirrored the
determination in Davis that the “primary protection afforded
suspects subject to custodial interrogation is the Miranda
warnings themselves” and that, “after having [those] right[s]
explained to him,” a suspect must invoke his rights
“affirmatively.” 512 U.S. at 460–61 (emphasis added).

    Just last year, in Salinas, the Court reiterated that
although “no ritualistic formula is necessary in order to
invoke the privilege,” to “simply stand[] mute,” as Salinas
did, was insufficient. 133 S. Ct. at 2178 (quoting Quinn v.
United States, 349 U.S. 155, 164 (1955)). In a noncustodial,
voluntary interview, Salinas answered most of the officer’s
questions, but when lobbed a linchpin question—“whether his
shotgun ‘would match the shells recovered at the scene’”—he
went silent. Id. Instead of answering, he “[l]ooked down at
the floor, shuffled his feet, bit his bottom lip, cl[e]nched his
hands in his lap, [and] began to tighten up.” Id. at 2178
(alterations in original) (internal quotation marks omitted).
After a few moments of silence, he started answering
questions again. Id. Salinas had not unambiguously invoked
his right to remain silent because “[i]f the extended custodial
silence in [Berghuis] did not invoke the privilege, then surely
                    SESSOMS V. GROUNDS                         21

the momentary silence in [Salinas] did not do so either.” Id.
at 2182.

    In Salinas, the Court first noted that a witness “must
claim [the privilege against self-incrimination] at the time he
relies on it.” Id. at 2179 (internal quotation marks omitted).
This ruling came against the backdrop of Edwards, Smith,
Davis and Berghuis, which establish that, under the
circumstances of the interrogation, the invocation must be
clear and unambiguous.

    The results in Berghuis and Salinas are no surprise—mere
silence does not qualify as an invocation of the right to
remain silent. The discussion of the Fifth Amendment in
Salinas is instructive, however, to the resolution of the right
to counsel issue in this case. See Berghuis, 560 U.S. at 381
(“[T]here is no principled reason to adopt different standards
for determining when an accused has invoked the Miranda
right to remain silent and the Miranda right to counsel . . . .”).
In Salinas, the Court reaffirmed the importance of the
Miranda warnings and discussed the two well-recognized
exceptions to this rule. 133 S. Ct. at 2179. The first is that a
witness “need not take the stand and assert the privilege at his
own trial.” Id. (citing Griffin v. California, 380 U.S. 609,
613–615 (1965)). That exception was not at issue in Salinas
and is not at issue here. See id. at 2179–80. Nor did the
second exception—the presence of “governmental coercion
[rendering] his forfeiture of the privilege involuntary”—apply
to Salinas. Id. at 2180. Sessoms did not claim this exception
in the state court proceedings. Accordingly, we do not rest
our analysis on either exception to the Fifth Amendment
privilege.
22                  SESSOMS V. GROUNDS

    We now consider Sessoms’s claim in light of the
teachings of Miranda and its progeny. Viewing the totality
of the circumstances of the interrogation, we conclude that
not only did Sessoms claim the privilege twice before being
suitably warned, he did so unequivocally.

II. THE STATE COURT’S UNREASONABLE APPLICATION OF
    SUPREME COURT PRECEDENT

    This case involves an “unreasonable application” of
clearly established federal law, which we review under
AEDPA’s deferential standard of review. See 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 407 (2000)
(holding that under AEDPA, “a state-court decision involves
an unreasonable application of this Court’s precedent if the
state court identifies the correct governing legal rule from this
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case.”). We take no issue with the
California Court of Appeal’s fact-finding or with its
identification of the governing Supreme Court precedents,
Miranda, Edwards, and Davis.

    The court fell short, however, in its application of those
precedents to the undisputed facts. It unreasonably applied
those precedents by analyzing Sessoms’s statements in
isolation rather than collectively and in context to conclude
that “although [Sessoms] twice explicitly referred to an
attorney, neither statement was an unequivocal or
unambiguous request for counsel.” Sessoms, 2004 WL
49720, at *3; see also Anderson v. Terhune, 516 F.3d 781,
791 (9th Cir. 2008) (en banc) (setting out the framework
under AEDPA, 28 U.S.C. § 2254(d)(1), and holding that
“[t]he state court’s decision to ignore an unambiguous
declaration of the right to remain silent is an unreasonable
                        SESSOMS V. GROUNDS                               23

application of Miranda”).7 The court reasoned that the first
statement—“There wouldn’t be any possible way that I could
have a . . . lawyer present while we do this?”—was a question
that was “legally indistinguishable from the equivocal
remarks in Davis.”            It characterized the second
statement—“give me a lawyer”—as a statement of his
father’s advice. It never considered the two statements
together and in context. Our decision rests on clearly
established Supreme Court precedent and requires no
extension of the rationale of the invocation of counsel cases.
See White v. Woodall, 134 S. Ct. 1697, 1706 (2014).

    We begin with the circumstances leading up to Sessoms’s
statements regarding counsel. See Smith, 469 U.S. at 98
(“Where nothing about the request for counsel or the
circumstances leading up to the request would render it
ambiguous, all questioning must cease.”). The interrogators
in this case employed many of the tactics against which
Miranda warned. No warning came up front. The detectives
plunged right into their questioning, which counsel for the
state acknowledged at oral argument was a custodial
interrogation. What was missing, nearly forty years after
Miranda, was the now well-known Miranda warnings.

    Miranda recognized that overzealous police practices
during custodial interrogation create the potential for
compulsion in violation of the Fifth Amendment. Id. at
455–58. Indeed, “[a]n individual [like Sessoms] swept from


 7
    We cite circuit precedent to outline the standard at issue, but recognize
that a circuit court “may not consul[t] its own precedents, rather than those
of th[e] [Supreme] Court, in assessing a habeas claim governed by
28 U.S.C. § 2254.” White v. Woodall, 134 S. Ct. 1697, 1702 n.2 (2014)
(first alteration in original) (internal quotation marks omitted).
24                 SESSOMS V. GROUNDS

familiar surroundings into police custody, surrounded by
antagonistic forces, and subjected to the techniques of
persuasion . . . cannot be otherwise than under compulsion to
speak.” Id. at 461. Davis reminded that “the primary
protection afforded suspects subject to custodial interrogation
is the Miranda warnings themselves.” 512 U.S. at 460. And
Salinas warned against the “inherently compelling pressures
of an unwarned custodial interrogation.” 133 S. Ct. at 2180
(internal quotation marks omitted). Even without receiving
any Miranda warning, Sessoms overcame these pressures and
requested counsel unequivocally.

    The interrogation started out politely, with Sessoms
saying that he was glad the detectives had a safe flight from
California. In keeping with the pleasant small talk Sessoms
made with the detectives when they entered the interrogation
room, and before receiving any advice regarding counsel,
Sessoms politely asked: “There wouldn’t be any possible way
that I could have a—a lawyer present while we do this?”
Unlike Davis, where the defendant asked, “[m]aybe I should
talk to a lawyer?,” Sessoms was not asking whether he should
speak to a lawyer. Like the defendant in United States v. Lee,
413 F.3d 622, 625 (7th Cir. 2005), who asked, “[c]an I have
a lawyer?”—which the Seventh Circuit recognized as an
unequivocal request for counsel—Sessoms was deferentially
asking whether he could have a lawyer. See United States v.
Hunter, 708 F.3d 938, 948 (7th Cir. 2013) (holding that
“[c]an you call my attorney?” was an unequivocal request for
counsel).

    The detectives understood that Sessoms was requesting
counsel, as Woods’s response to a subsequent question
illustrates. After requesting counsel and before receiving the
Miranda warnings, Sessoms paralleled the phrasing of his
                    SESSOMS V. GROUNDS                       25

first request for counsel asking, in response to Woods’s
question about whether Sessoms wanted to talk, “[w]ould it
be a possible chance that I can call my dad . . . ask him?”
The officers understood that statement as an expression of
Sessoms’s desire to speak to his father and responded
accordingly: “Well no, because . . . [y]ou’re an adult.” There
was no ambiguity in the first request for counsel—Sessoms
was expressing his desire to speak to an attorney—any more
than there was ambiguity in Sessoms’s request to speak to his
father.

    The answer to “[t]here wouldn’t be any possible way that
I could have a . . . lawyer present while we do this?” was
easy—“yes, you have the right to remain silent and you have
the right to a lawyer even if you can’t afford one.” But the
detectives did not respond that they could not decide for him
whether he should speak to a lawyer, they did not follow up
about whether he was asking for a lawyer as the officers in
Davis did, nor did they answer his question. The detectives
instead pretended that Sessoms had never raised the issue of
a lawyer in the first place.

     Ignoring the defendant’s request flies in the face of clear
Supreme Court precedent: “No authority, and no logic,
permits the interrogator to proceed . . . on his own terms and
as if the defendant had requested nothing, in the hope that the
defendant might be induced to say something casting
retrospective doubt on his initial statement that he wished to
speak through an attorney or not at all.” Smith, 469 U.S. at
99 (omission in original) (quotation marks and citation
omitted). Under clearly established federal law, the answer
to Sessoms’s question about whether there could be a lawyer
present during the interrogation should have been “yes,”
followed by a reading of the Miranda rights, and an end to
26                 SESSOMS V. GROUNDS

any questioning absent an affirmative waiver. See Edwards,
451 U.S. at 485; see also Duckworth, 492 U.S. at 204 (“If the
police cannot provide appointed counsel, Miranda requires
only that the police not question a suspect unless he waives
his right to counsel.”).

    Persisting in his attempts to speak with counsel before
speaking to the officers, Sessoms repeated what he gleaned
from his father: “give me a lawyer.” This was a very clear
statement that Sessoms wanted counsel, yet the California
Court of Appeal viewed this statement as a “statement of his
father’s advice to him.” Sessoms was not simply conveying
his father’s advice. Why would he? He was stating the fact
that his father had told him to request counsel and that he was
following through. That his father instructed him to ask for
counsel does not dilute the clarity of Sessoms’s request; it
simply means that Sessoms’s father gave him good advice,
and he took it.

    The only reasonable interpretation of “give me a lawyer”
is that Sessoms was asking for a lawyer. What more was
Sessoms required to say? Was he obligated to repeat the
obvious—“give me a lawyer”—another time? It is no more
reasonable to demand grammatical precision from a suspect
in custody than it is to strip the officers of all common sense
and understanding. To the extent the first statement spawned
any uncertainty—and we believe that it did not reasonably do
so—taken together the two requests leave no doubt about
what Sessoms wanted: a lawyer.

    In light of clear Supreme Court precedent, we have
recognized the importance of evaluating a suspect’s in-
custody statements as a whole. See Hunter, 708 F.3d at
945–46 (explaining that Smith “confirms that courts should
                   SESSOMS V. GROUNDS                       27

only consider prior context when determining whether a
defendant unambiguously invoked his right to counsel” and
collecting cases in which the court “looked to prior context
when determining whether a defendant unambiguously
invoked his right to counsel”). The importance of Smith and
context was illustrated in Anderson v. Terhune, where the
suspect said “I don’t even wanna talk about this no more”;
“Uh! I'm through with this. I’m through. I wanna be taken
into custody . . . .”; and, finally, “I plead the [F]ifth.”
516 F.3d at 785–88. Citing to Supreme Court precedent in
Smith, we held that “the state court was unreasonable in
concluding that the invocation was ambiguous in context
because the context, in fact, ma[de] it clear that Anderson
wanted to end the interrogation in all respects.” Id. at 788.

    Viewed in the context of Sessoms’s prior request that the
detectives make counsel available to him during the
interrogation, it was unreasonable to hold that Sessoms’s
second statement, “give me a lawyer,” was an ambiguous
request for counsel. What else could this mean? I don’t want
an attorney? I’m not sure I want an attorney? My dad wants
an attorney? No, it means what it says in plain English: dad
told me to ask you and I am—“give me an attorney.”

    As the Supreme Court has recognized, requests for
counsel are to be “understood as ordinary people would
understand them.” Connecticut v. Barrett, 479 U.S. 523, 529
(1987) (emphasis added). The state court stretched the
boundaries of how reasonable law enforcement officers
would have understood Sessoms’s statements in reaching its
conclusion. Judge Murguia’s dissent does the same. It
recognizes that the Court of Appeal erred in its Davis analysis
by considering Sessoms’s statements in isolation. It then
goes on to acknowledge that “the majority may offer the most
28                 SESSOMS V. GROUNDS

logical interpretation of what Sessoms was attempting to
communicate by his statements.” But then it jettisons the
only “logical interpretation” of Sessoms’s statements and
embraces interpretations that blink reality—“Sessoms was
merely expressing his father’s opinion,” “agreeing with his
father,” or stating that “he might” want an attorney—offering
only that his statements contain “just enough ambiguity” to
deny relief. Conjuring up ambiguity where there is none
violates Davis. Construing the demand, “give me a lawyer,”
as ambiguous strains credulity. Invoking the mantra of “a
fairminded jurist,” a standard we embrace, does not mean that
in evaluating the statements we toss overboard logic,
common sense, and context. In contravention of Davis, by
allowing the detectives to play games with Sessoms’s clear
language, the California Court of Appeal imposed the
unreasonable grammatical precision of an “Oxford don” on
a suspect subject to custodial interrogation. See 512 U.S. at
459 (quoting id. at 476 (Souter, J., concurring)).

    What happened after Sessoms made these two statements
illustrates precisely why, once a lawyer is requested,
questioning must stop. It is also a testament to why Miranda
warnings are required at the outset of custodial interrogation.
Interrogation does not begin once the officers get to the hard
questions. Miranda warnings are required before any
interrogation begins.

    Instead of giving Miranda warnings at the outset, or
saying “yes” when Sessoms asked whether he could have a
lawyer, Woods persisted with his questioning. He told
Sessoms that they already knew what happened and that
Sessoms’s accomplices had confessed “la[ying] it out from A
to Z,” thereby “display[ing] an air of confidence in
[Sessoms’s] guilt” and appearing only to be “interest[ed] in
                   SESSOMS V. GROUNDS                       29

confirming certain details.” See Miranda, 384 U.S. at 450.
Woods offered Sessoms a “legal excuse[],” see id. at 451–52,
and assured him that he believed that Sessoms did not
participate in the stabbing. But then Woods immediately
reversed course, telling Sessoms that he didn’t really need his
statement to make the case against him anyway, because
Sessoms’s accomplices had talked and hard evidence backed
up their statements, thereby placing Sessoms “in a
psychological state where his story [was] but an elaboration
of what the police purport[ed] to know already—that he [was]
guilty.” Id. at 450. Eventually, the detectives, much as
Miranda warns, overwhelmed Sessoms and persuaded him
“out of exercising his constitutional rights.” Id. at 455.
Giving Sessoms the Miranda warnings, “in the midst of
coordinated and continuing interrogation,” was “likely to
mislead and depriv[e] [him] of knowledge essential to his
ability to understand the nature of his rights and the
consequences of abandoning them.” See Missouri v. Seibert,
542 U.S. 600, 613–14 (2004) (first alteration in original)
(internal quotation marks omitted).

    The detectives’ behavior confirms that—like any
reasonable law enforcement officers—they understood that
Sessoms was requesting counsel. Woods’s response to
Sessoms’s requests for counsel was to explain that he and
Keller would be “up front” and “honest” with Sessoms and
would not play any “switch games” with him. Woods backed
up this promise with a tape recorder he had with him, which
he said provided “proof that we ain’t playing no switch
games.” It was not until after the detectives explained just
how forthright they were being and reiterated that the
existence of a recording would ensure that they “can’t play no
switch games” that they acknowledged Sessoms’s requests
for counsel, stating “Uh, I want to back up to your question
30                 SESSOMS V. GROUNDS

about an attorney” and explaining that first, they would
advise Sessoms why they were interviewing him; then, they
would advise Sessoms of his rights; and after all that, they
would leave it to Sessoms “to decide if you want the attorney
or not.” After a bit more small talk, Woods drove the point
home:

       [I]f you said you didn’t want to make any
       statement without an attorney, we’re not
       really going to be able to talk to you and get
       your version of it. Uh, most all attorneys—in
       fact, all attorneys will—will sometimes or
       usually advise you not to make a statement.
       But—and—and we don’t need to have your
       statement to make this case because we’ve
       already got two and a half other complete
       statements.        And we know what
       happened . . . .

Why would Woods need to talk Sessoms out of an attorney if
he hadn’t understood that Sessoms wanted an attorney?

    In determining that Sessoms’s statements are unlike the
wavering statement in Davis, we hew to the teachings of
Salinas that invocation of Miranda rights must be “express.”
See 133 S. Ct. at 2179. There was no ambiguity regarding
what Sessoms wanted: a lawyer. It was not until Woods
convinced Sessoms that a lawyer would simply get in the way
that Sessoms relented and gave Woods what he wanted:
incriminating statements made without the benefit of counsel.

    Context and circumstances matter. Under Davis and
Smith, the Court of Appeal was bound to analyze whether a
reasonable officer viewing the situation in light of all of the
                    SESSOMS V. GROUNDS                        31

circumstances leading up to the statements would have
understood Sessoms’s statements to be a request for counsel.
Rather than following that procedure, the California Court of
Appeal analyzed each statement separately, did not explore
the context in which the statements were made, and,
unsurprisingly, landed on an unreasonable application of
clearly established federal law. See Sessoms, 2004 WL
49720, at *3. The Court of Appeal unreasonably applied
clearly established precedent under Miranda, Edwards,
Smith, and Davis when it held that Sessoms’s request for
counsel was ambiguous.

III. THE CONSTITUTIONAL ERROR WAS NOT HARMLESS

     Harmless error review applies to the introduction of
Sessoms’s illegally obtained confession.             Arizona v.
Fulminante, 499 U.S. 279, 295 (1991). Reversal is required
if the constitutional error “had substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks and citation omitted). We conduct this inquiry de
novo. “If, reviewing the facts as a whole, we are able to
determine with fair assurance that the judgment was not
substantially swayed by the error, we may conclude that the
error was harmless. Otherwise, we must conclude that the
petitioner’s rights were substantially and injuriously
affected.” Hurd v. Terhune, 619 F.3d 1080, 1090 (9th Cir.
2010); see also Deck v. Jenkins, 768 F.3d 1015, 1022 (9th
Cir. 2014) (“If the record is so evenly balanced that a
‘conscientious judge is in grave doubt as to the harmlessness
of an error,’ the petitioner must prevail.”) (quoting O’Neal v.
McAninch, 513 U.S. 432, 437 (1995)).
32                    SESSOMS V. GROUNDS

    Accordingly, the question is whether we can fairly
determine that Sessoms’s confession did not substantially
sway the jury to convict him for felony murder, burglary, and
robbery.8 Applying this standard, we have little difficulty
concluding that the admission of Sessoms’s illegally obtained
confession was not harmless.

    To begin, as the Supreme Court has emphasized, a
“defendant’s own confession is probably the most probative
and damaging evidence that can be admitted against him.”
Fulminante, 499 U.S. at 296 (citation omitted); Alvarez v.
Gomez, 185 F.3d 995, 999 (9th Cir. 1995) (holding
introduction of illegally obtained confession was not harmless
error under Brecht standard).

    This case underscores that point. In his statements to
police, Sessoms readily implicated himself in the crime,
admitting that he knew about the planned robbery beforehand
and was an active participant in carrying it out. Critically,
Sessoms confessed that he entered the house along with his
two co-conspirators, expecting to rob the victim while he
wasn’t home. He described the crime in vivid detail, down to
the pajamas the victim was wearing when Sessoms and his
cohorts stumbled upon him.

    In closing arguments, prosecutors drove home the point,
returning to Sessoms’s confession again and again and telling
jurors it was “very important evidence.” The prosecutor
added, “You should consider it carefully. He admits in his
statements to the detectives his full and knowing involvement


     8
      The state acknowledges that, with respect to the jury’s special
circumstances verdict, the introduction of Sessoms’s confession was not
harmless.
                    SESSOMS V. GROUNDS                       33

in the underlying crimes of burglary and robbery. . . .” He
went on to argue: “You should not question that what Mr.
Sessoms said about his involvement and what happened that
night is true.”

    The other evidence against Sessoms pales in comparison.
Two teenage witnesses placed Sessoms near the scene on the
night of the murder, but neither saw him enter the house.
Eight days after the crime, police recovered Sessoms’s
fingerprints on documents inside the glove box of the
victim’s car. This circumstantial evidence may have
supported an accessory charge, but it provided, at best,
limited proof that Sessoms actually participated in the
botched robbery, much less that he had the specific intent
necessary for the felony murder, robbery, and burglary
convictions.

   Sessoms’s confession was the linchpin of the
prosecution’s case.       Because the confession likely
substantially swayed the jury toward conviction, the
constitutional error was not harmless.

                        CONCLUSION

    Sessoms’s statements, taken together, are a far cry from
the ambiguous statement offered in Davis and the unclear
conduct in Berghuis and Salinas. Davis recognized that “a
suspect need not speak with the discrimination of an Oxford
don,” however, “he must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a
request for an attorney.” 512 U.S. at 459 (quoting id. at 476
(Souter, J., concurring)) (internal quotation marks omitted).
This is precisely what Sessoms did. Admission of Sessoms’s
34                 SESSOMS V. GROUNDS

statements was not harmless error. We reverse the district
court’s judgment and remand for further proceedings
consistent with this opinion.

     REVERSED AND REMANDED.



Chief Judge KOZINSKI, reluctantly dissenting:

    This is a sad and troubling case. There can be no doubt
that Tio Sessoms meant to ask for a lawyer. Nor is there any
doubt that detectives Woods and Keller understood exactly
what he was asking for—and used their hefty leverage to
divert him from that purpose. It was hardly a fair contest: a
boy in his teens, held in custody and cut off from friends and
family, pitted against two police detectives with decades of
experience in overcoming the will of recalcitrant suspects and
witnesses.

    But what we must decide is not what Sessoms meant or
the officers understood, but whether it was unreasonable for
the state courts to conclude that a reasonable officer would
have been perplexed as to whether Sessoms was asking for an
attorney. This is the kind of question only lawyers could
love—or even understand—and perhaps not even most of
them. I am dismayed that Sessoms’s fate—whether he will
spend his remaining days in prison, half a century or more
caged like an animal—turns on such esoterica. But that’s the
standard we are bound to apply, even if we are convinced that
the habeas petitioner’s constitutional rights were violated.
See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam)
(“[T]he inevitable consequence of [AEDPA] is that [federal]
judges will sometimes encounter convictions that they believe
                    SESSOMS V. GROUNDS                       35

to be mistaken, but that they must nonetheless uphold.”); see
also Brown v. Payton, 544 U.S. 133, 148–49 (2005) (Breyer,
J., concurring) (stating that even though he likely would have
found a constitutional violation “[w]ere [he] a California state
judge,” the state court’s denial of habeas relief was
reasonable).

    Under this unforgiving standard, Judge Murguia has the
better of the argument. This is not a case where the state
judges were confused about the law or overlooked key
evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th
Cir. 2004). No, the Court of Appeal’s opinion is carefully
crafted to exploit every ambiguity in the timid utterances of
a scared and lonely teenager. Another uneven contest that
Sessoms was bound to lose.

    While I agree with Judge Murguia’s analysis and join her
dissent, it’s just as well that our view doesn’t command a
majority. If the State of California can’t convict and sentence
Sessoms without sharp police tactics, it doesn’t deserve to
keep him behind bars for the rest of his life. I have seen far
too many cases where police extract inculpatory statements
from suspects they believe to be guilty, then stop looking for
evidence, confident that the courts will uphold the
interrogation, no matter how tainted. See, e.g., Milke v. Ryan,
711 F.3d 998, 1001–02 (9th Cir. 2013); Taylor, 366 F.3d at
996–97. This can lead to wrongful convictions, as innocent
interrogation subjects confess with surprising frequency. See
Saul M. Kassin et al., Police-Induced Confessions: Risk
Factors and Recommendations, 34 Law & Hum. Behav. 3,
3–5 (2009); Brandon L. Garrett, Judging Innocence,
108 Colum. L. Rev. 55, 88–89 (2008). When courts bend
over backwards to salvage evidence extracted by questionable
methods, they encourage police to take such shortcuts rather
36                     SESSOMS V. GROUNDS

than doing the arduous legwork required to obtain hard
evidence.

    The state courts should have been far more vigilant in
correcting and condemning the detectives’ improper conduct,
particularly since it involved a naïve teenager who clearly
tried very hard to invoke his constitutional right to have a
lawyer present during questioning. The state courts having
failed Sessoms, I’m glad that a majority of our en banc court
is able to conclude that the state courts were unreasonable. I
hope their view prevails in the end.



CALLAHAN, Circuit Judge, dissenting:

    This case is before our en banc panel for a second time
after the Supreme Court vacated our prior opinion and
remanded for further consideration in light of Salinas v.
Texas, 133 S. Ct. 2174 (2013). I concur in Judge Murguia’s
dissent. I write separately to stress that I read the Supreme
Court’s remand for further consideration in light of Salinas as
precluding the majority’s conclusion that Sessoms’s
comments were so unambiguous as to render the California
Court of Appeal’s opinion unreasonable.

    Although Salinas concerned the right to remain silent
rather than the right to counsel, Justice Alito’s plurality
opinion in Salinas sets forth a controlling perspective.1 He



 1
  Sessoms’s claim would clearly fail under Justice Thomas’s concurring
opinion, which Justice Scalia joined. Justice Thomas wrote: “In my view,
Salinas’ claim would fail even if he had invoked the privilege because the
                        SESSOMS V. GROUNDS                          37

first reiterated that “[t]he privilege against self-incrimination
‘is an exception to the general principle that the Government
has the right to everyone’s testimony.’” 133 S. Ct. at 2179
(quoting Garner v. United States, 424 U.S. 648, 658 n.11).
He explained that the requirement that the privilege be clearly
invoked:

          ensures that the Government is put on notice
          when a witness intends to rely on the privilege
          so that it may either argue that the testimony
          sought could not be self-incriminating, see
          Hoffman v. United States, 341 U.S. 479, 486,
          71 S. Ct. 814, 95 L. Ed. 1118 (1951), or cure
          any potential self-incrimination through a
          grant of immunity, see Kastigar v. United
          States, 406 U.S. 441, 448, 92 S. Ct. 1653, 32
          L. Ed.2d 212 (1972).

133 S. Ct. at 2179. Justice Alito further elaborated that “[a]
witness’ constitutional right to refuse to answer questions
depends on his reasons for doing so, and courts need to know
those reasons to evaluate the merits of a Fifth Amendment
claim.”2 Id. at 2183.


prosecutor’s comments regarding his precustodial silence did not compel
him to give self-incriminating testimony.” 133 S. Ct. at 2184.
 2
     Justice Alito added the following footnote:

          The dissent suggests that officials in this case had no
          “special need to know whether the defendant sought to
          rely on the protections of the Fifth Amendment.” Post,
          at 2186–2187 (opinion of BREYER, J.). But we have
          never said that the government must demonstrate such
          a need on a case-by-case basis for the invocation
38                   SESSOMS V. GROUNDS

    The application of this perspective to Sessoms’s situation
precludes a finding that the California Court of Appeal’s
decision was “based on an unreasonable application of,
clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

     The opinions in Salinas confirm that the Supreme Court
had not previously ruled on the degree of certainty required
for a pre-Miranda request for counsel. Justice Alito saw
Salinas’s unexplained silence in response to the prosecutor’s
question as ambiguous. He does not deny that Salinas could
have asserted his right against self-incrimination under the
Fifth Amendment as his reason for declining to answer. Nor
does he deny that if Salinas had invoked his rights under the
Fifth Amendment, the prosecutor would have been barred at
trial from commenting on Salinas’s silence.

    The logic behind the determination that Salinas’s silence
was ambiguous leads to the conclusion that Sessoms’s
comments concerning counsel were also ambiguous. In both
instances the defendants were at police stations. Although
Salinas may not have been “in custody,” Sessoms had
voluntarily placed himself in custody. In both instances, the
officers had legitimate reasons for needing specificity. In
Salinas, as noted, the officers could have considered grants of
immunity. Similarly, with Sessoms, the officers might have
considered grants of immunity and definitely needed to know


        requirement to apply. Any such rule would require
        judicial hypothesizing about the probable strategic
        choices of prosecutors, who often use immunity to
        compel testimony from witnesses who invoke the Fifth
        Amendment.

133 S. Ct. at 2183 n.4. The majority appears to succumb to “judicial
hypothesizing.”
                       SESSOMS V. GROUNDS                              39

whether under Miranda v. Arizona, 384 U.S. 436 (1966), and
Edwards v. Arizona, 451 U.S. 477 (1981), they were required
to cease the interrogation even before they gave a Miranda
warning.

    As a practical matter, Salinas’s reason for not answering
the officer’s question was more obvious than Sessoms’s
intent. The officer asked Salinas whether his shotgun would
match the shells recovered at the scene of the murder.
Salinas, 133 S. Ct. at 2178. It is hard to imagine a question
that more obviously calls for an incriminating answer. In
contrast, as Judge Murguia’s dissent notes, Sessoms’s
statements are in themselves ambiguous.3 In light of the case
law cited by Judge Murguia, the California Court of Appeal’s
decision that Sessoms’ statements were ambiguous cannot be
considered “an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2).

    The majority, perhaps seeking to avoid this conclusion,
purports to grant relief on the first prong of § 2254(d),
holding that the California Court of Appeal “landed on an
unreasonable application of clearly established federal law.”
Maj. Op. at 30–31. The State court’s alleged failings were
that it “analyzed each statement separately, [and] did not
explore the context in which the statements were made.” Id.




  3
    It might further be noted that as a practical matter, a suspect may, on
occasion, benefit from waiving his Miranda rights in exchange for
immunity or a bargained sentence. This reality supports the requirement
that a request for counsel be unambiguous because a defendant may
mention his Fifth Amendment rights as a negotiating tactic.
40               SESSOMS V. GROUNDS

   The California Court of Appeal’s decision, however,
speaks for itself. The court wrote:

      “ ‘[A] statement either is such an assertion of
      the right to counsel or it is not.’ [Citation.]
      Although a suspect need not ‘speak with the
      discrimination of an Oxford don,’ [citation],
      he must articulate his desire to have counsel
      present sufficiently clearly that a reasonable
      police officer in the circumstances would
      understand the statement to be a request for an
      attorney. If the statement fails to meet the
      requisite level of clarity, Edwards does not
      require that the officers stop questioning the
      suspect. [Citation.]” (Davis, supra, 512 U.S.
      at p. 459.)

      In the present case, although defendant twice
      explicitly referred to an attorney, neither
      statement was an unequivocal or
      unambiguous request for counsel. On the first
      occasion, defendant asked, “There wouldn’t
      be any possible way that I could have a . . .
      lawyer present while we do this?” As the
      court found, this was a question, not an
      unambiguous request. Defendant’s second
      reference to an attorney was “Yeah, that’s
      what my dad asked me to ask you guys . . . uh,
      give me a lawyer.”

      We find defendant’s first statement is legally
      indistinguishable from the equivocal remarks
      in Davis, “‘Maybe I should talk to a lawyer’”
      (Davis, supra, 512 U.S. at p. 455), and in
                       SESSOMS V. GROUNDS                              41

         People v. Crittenden (1994) 9 Cal.4th 83, 123
         (Crittenden), “‘Did you say I could have a
         lawyer?’” These equivocal remarks in Davis
         and Crittenden were not requests for counsel
         triggering the Edwards rule. (Davis, supra,
         512 U.S. at p. 462.) Similarly, “[i]n the
         present case, defendant did not unequivocally
         state that he wanted an attorney, but simply
         asked a question.”       (Crittenden, supra,
         9 Cal.4th at p. 130.)

         Nor was defendant’s second reference to an
         attorney an unequivocal request for an
         attorney. At best, it was a statement of his
         father’s advice to him. We cannot find such
         a statement to be “sufficiently clear[ ] that a
         reasonable police officer in the circumstances
         would understand the statement to be a
         request for an attorney.” (Davis, supra,
         512 U.S. at p. 459.)

People v. Sessoms, No. C041139, 2004 WL 49720 at *3 (Ca.
Ct. App. Jan. 12, 2004) (citations as set forth in the original).

    Indeed, the majority opinion appears to reflect a
disagreement with the California Court of Appeal’s view of
the facts, not its application of clear Federal law.4 The

  4
     The majority’s distinction between a determination of fact and the
application of clearly established Federal law is less than clear. It notes
that the California Court of Appeal identified “the governing Supreme
Court precedents, Miranda, Edwards and Davis,” but then opines that the
court “unreasonably applied those precedents by analyzing Sessoms’s
statements in isolation rather than collectively and in context.” Maj. Op.
at 22. This suggests that where, as here, the underlying facts are not
42                    SESSOMS V. GROUNDS

opinion states: “[t]he only reasonable interpretation of ‘give
me a lawyer’ is that Sessoms was asking for a lawyer,” Maj.
Op. at 26; “[v]iewed in the context of Sessoms’s prior request
that the detectives make counsel available to him during the
interrogation, it was unreasonable to hold that Sessoms’s
second statement, ‘give me a lawyer,’ was an ambiguous
request for counsel,” Maj Op. at 27; and “[t]here was no
ambiguity regarding what Sessoms wanted: a lawyer.” Maj.
Op. at 30. These appear to be disagreements with the State
court’s view of the facts, not with the application of clear
Federal law.

    Critically, some of the reasons offered by the majority to
support its conclusion were rejected by the Supreme Court in
Salinas. The majority asserts that the “detectives understood
that Sessoms was requesting counsel,” Maj. Op. at 24; and
that the “detectives’ behavior confirms that—like any
reasonable law enforcement officers—they understood that
Sessoms was requesting counsel.” Maj Op. at 29. However,
the plurality opinion in Salinas noted that the Court had
“repeatedly held that the express invocation requirement
applies even when an official has reason to suspect that the
answer to his question would incriminate the witness.”
133 S. Ct. at 2181. Thus, as in Salinas, whether Sessoms’s
statements were ambiguous does not turn on whether the




disputed, a determination of whether a suspect’s statement concerning
counsel is ambiguous is a question of law, not fact. This does not seem
right.
                       SESSOMS V. GROUNDS                             43

detectives probably understood that Sessoms was requesting
counsel.5

    Furthermore, as Judge Murguia notes in her dissent, the
detectives’ reaction was consistent with concerns that
Sessoms might be invoking his right to counsel. As Justice
Alito explained in Salinas, the Government is entitled to a
clear invocation in order that it may consider curing “any
potential self-incrimination through a grant of immunity.”
133 S. Ct. at 2179. Here, the detective did not ignore
Sessoms statements, but returned to the subject, telling
Sessoms “[i]f you said you didn’t want to make any statement
without an attorney, we’re not really going to be able to talk
to you.” In response, Sessoms did not ask for counsel. Nor
is he claiming that he was pressured into an involuntary
waiver. Rather, he asserts that his two statements were so
clear as to require the immediate cessation of questioning. I
do not read the Supreme Court’s opinions in Salinas, or
Davis, as directing such a conclusion.

    Because Supreme Court precedent does not compel a
determination, either as a matter of law or fact, that
Sessoms’s statements, either separately or together, constitute
an unambiguous invocation of his right to counsel, we are
compelled to deny him relief. “A state court’s determination
that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness


  5
    Such a test was implicitly rejected in cases such as Davis v. United
States, 512 U.S. 452, 459 (1994) (“Maybe I should talk to a lawyer.”); and
United States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005) (“[B]ut,
excuse me, if I am right, I can have a lawyer present through all this,
right?”). In both instances, the officers probably understood the intent
behind the defendants’ ambiguous statements.
44                 SESSOMS V. GROUNDS

of the state court’s decision.” Harrington v. Richter, 131 S.
Ct. 770, 786 (2011). Indeed, recognizing the deference due
to the California Court of Appeal’s determination is the most
reasonable explanation for why the Supreme Court vacated
our prior en banc opinion and remanded the case for
consideration in light of Salinas. I would follow the Supreme
Court’s advice rather than challenge it to order our
compliance.



MURGUIA, Circuit Judge, with whom KOZINSKI, Chief
Judge, and SILVERMAN, CALLAHAN, and IKUTA, Circuit
Judges, join, dissenting:

    When Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), it severely restricted
the power of federal courts to provide relief to habeas
petitioners convicted in state court, even when we might
believe that the conviction was the result of unlawful
proceedings. The statutory provision at issue here, 28 U.S.C.
§ 2254(d), provides that

       [a]n application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated
       on the merits in State court proceedings unless
       the adjudication of the claim–

       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application of,
       clearly established Federal law, as determined
       by the Supreme Court of the United States; or
                       SESSOMS V. GROUNDS                              45

         (2) resulted in a decision that was based on an
         unreasonable determination of the facts in
         light of the evidence presented in the State
         court proceeding.

Our inquiry falls under § 2254(d)(1); specifically, we must
consider whether the California Court of Appeal
“unreasonabl[y] appli[ed]” the Supreme Court’s holding in
Davis v. United States, 512 U.S. 452, 459 (1994). Davis held
that a suspect “must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a
request for an attorney” before the interrogating officers are
required to stop questioning the suspect under the Supreme
Court’s rule in Edwards v. Arizona, 451 U.S. 477 (1981).1
Under AEDPA, this inquiry is much narrower than simply
evaluating whether the state court correctly applied Davis.

         For purposes of § 2254(d)(1), “an
         unreasonable application of federal law is
         different from an incorrect application of
         federal law.” A state court must be granted a
         deference and latitude that are not in operation
         when the case involves [direct review].

Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting
Williams v. Taylor, 529 U.S. 362, 410 (2000)). Indeed, we
may only grant habeas relief where “there is no possibility


  1
     As the majority correctly observes, although the Supreme Court’s
holding in Davis applied only to waivers of the right to counsel made after
a suspect had been informed of and waived his Miranda rights, Salinas v.
Texas, 133 S. Ct. 2174 (2013), suggests that the “unambiguous request”
rule applies in a pre-waiver context as well.
46                  SESSOMS V. GROUNDS

fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.”
Id. at 786.

    The Supreme Court has recognized that AEDPA, by its
intention and design, prohibits us from granting relief in
almost all cases in which a petitioner alleges that federal law
has been unreasonably applied. See id. “As amended by
AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state
proceedings.” Id.

    Thus, AEDPA has the effect of limiting this court’s
consideration of Sessoms’s petition to an excruciatingly
narrow question. It does not matter whether we believe that
the state court incorrectly applied Davis. It does not matter
whether we believe that the state court’s decision was
inconsistent with the vital constitutional principle that
animated Edwards – that “an accused, . . . having expressed
his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel
has been made available to him.” 451 U.S. at 484–85. It
does not matter whether the best practice for the officers
interrogating Sessoms would have been to ask him to clarify
whether he indeed wanted the assistance of counsel. Under
AEDPA, the only question that matters to us now is whether
any fairminded jurist could determine that Sessoms “ma[de]
a reference to an attorney that [was] ambiguous or equivocal
in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be
invoking the right to counsel.” Davis, 512 U.S. at 459.

   I believe that a fairminded jurist could reach such a
conclusion. Sessoms first asked, “There wouldn’t be any
                   SESSOMS V. GROUNDS                       47

possible way that I could have a, a lawyer present while we
do this?” This question, punctuated with hesitation and
conditions and phrased in the negative, is subject to different
interpretations and comparable to statements that this court
and other courts have found ambiguous. Compare Davis,
512 U.S. at 455 (“Maybe I should talk to a lawyer.”); United
States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005)
(“[B]ut, excuse me, if I am right, I can have a lawyer present
through all this, right?”); Clark v. Murphy, 331 F.3d 1062,
1065 (9th Cir. 2003) (“I think I would like to talk to a
lawyer.”), overruled on other grounds by Lockyer v. Andrade,
538 U.S. 63 (2003); United States v. Doe, 170 F.3d 1162,
1166 (9th Cir. 1999) (“What time will I see a lawyer?”); Diaz
v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996) (“I think I
want a lawyer.”); Lord v. Duckworth, 29 F.3d 1216, 1218–21
(7th Cir. 1994) (“I can’t afford a lawyer but is there any way
I can get one?”); with Anderson v. Terhune, 516 F.3d 781,
783 (9th Cir. 2008) (en banc) (“I plead the Fifth.”); Edwards,
451 U.S. at 479 (“I want an attorney before making a deal.”).

    Sessoms followed up his question by stating, “That’s
what my dad asked me to ask you guys . . . uh, give me a
lawyer.” It is unclear if Sessoms was merely expressing his
father’s opinion or if he was agreeing with his father and he
himself wanted an attorney. Either interpretation is plausible.
A reasonable jurist could conclude that telling a detective,
“My dad told me to ask for a lawyer” is different than saying,
“I want a lawyer.” Because a reasonable jurist could find
either of Sessoms’s statements – or both, considered together
– ambiguous or equivocal, relief is barred by AEDPA.

    The majority points to the detective’s behavior in reaction
to Sessoms’s statements as evidence that the detective
believed Sessoms had invoked his right to counsel.
48                 SESSOMS V. GROUNDS

According to the majority, the officer attempted to “talk
Sessoms out of an attorney,” which demonstrates that the
officer understood Sessoms to have invoked his right to speak
with counsel. The detective’s reaction, however, could easily
have been that of an officer faced with a suspect who only
might have invoked his right to counsel. The detective’s
acknowledgment of Sessoms’s statements about speaking to
an attorney supports this theory:

       Uh, I want to back up to your question you
       asked about an attorney. Um, first, before you
       ask questions, uh, I’m going to tell you why
       we’re here, just lay it out and be up front.
       And then – then I’m going to advise you of
       your rights. And then it’s up – for you to
       decide if you want the attorney or not.

The majority believes the officers should have answered
Sessoms’s question by simply saying “yes,” reading him his
Miranda rights, and then terminating the interrogation in the
absence of a clear waiver. Maj. Op. at 25–26. The majority
likewise believes that, in the brief exchange before Sessoms
was read his Miranda rights, the detective manipulated
Sessoms into waiving his right to counsel. Again, however,
Sessoms is not claiming that he was pressured into an
involuntary waiver, but only that he asked for counsel, which
should have terminated the interrogation. “[T]he likelihood
that a suspect would wish counsel to be present is not the test
for applicability of Edwards.” McNeil v. Wisconsin, 501 U.S.
171, 178 (1991). Unless Sessoms clearly invoked his right to
counsel, the police officers were not required to take any
particular course of action in response to his statements or
questions. See Davis, 512 U.S. at 460. As such, the
                       SESSOMS V. GROUNDS                               49

majority’s focus on the detective’s reaction to Sessoms’s
statements is misplaced.

    While the majority correctly observes that the state court
should have considered Sessoms’s statements together rather
than in isolation, that is not a basis for granting habeas relief
where, as here, the state court could have reached the same
outcome even if it had done so. See Harrington, 131 S. Ct. at
786 (“[A] habeas court must determine what arguments or
theories supported or . . . could have supported[] the state
court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of this Court.”). Although the majority may offer the most
logical interpretation of what Sessoms was attempting to
communicate by his statements, there are other interpretations
that are at least reasonable, even if less compelling.2 Even
taking Sessoms’s statements together, those statements
contained just enough ambiguity that a fairminded jurist
could conclude that Sessoms was indicating only that he
might want the assistance of counsel.

    I acknowledge that this reasoning results in a harsh
outcome for a nineteen-year-old who turned himself in,
expressly told the officers that his father wanted him to have
a lawyer, and may have simply been trying to be respectful

 2
   The majority’s characterization of this assessment as “jettison[ing] the
only ‘logical interpretation’ of Sessoms’s statements,” Maj. Op. at 28,
misapprehends the structure that AEDPA imposes on our inquiry. We do
not seek to identify the best interpretation of Sessoms’s statements. Our
task is to identify the universe of reasonable interpretations. Here, if the
state court’s understanding of Sessoms’s statements can meet the
extremely low bar that the Supreme Court has set for reasonableness, then
we are precluded from granting relief.
50                  SESSOMS V. GROUNDS

when asking for counsel. However, the potential for a harsh
outcome does not permit us to disregard AEDPA’s “highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)).

    Could the police officers have assumed that Sessoms was
in fact asking for a lawyer? Yes. Was it objectively
unreasonable for the California Court of Appeal to hold that
a police officer could have interpreted Sessoms’s statement
as merely a possible request for a lawyer, which would not
require the officer to stop the interrogation? I cannot say that
it was. Because this court is constrained by the deference
mandated by AEDPA, even when faced with a close case in
which it may have ruled differently than the state court, I
respectfully dissent.
