                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               FEB 17 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARK ANTHONY BATES,                              No. 08-55849

             Petitioner - Appellant,             D.C. No. 3:07-cv-00330-H-BLM

  v.
                                                 MEMORANDUM *
KEN CLARK, Warden,

             Respondent - Appellee.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Marilyn L. Huff, District Judge, Presiding

                      Argued and Submitted February 2, 2010
                               Pasadena, California

Before: B. FLETCHER, PREGERSON and GRABER, Circuit Judges.

       Petitioner Mark Anthony Bates appeals the denial of his habeas corpus

petition. He argues that the California Court of Appeal unreasonably refused to

suppress his confession and that admission of the confession was not harmless.

We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      After Bates was taken into police custody, detectives informed him of his

Miranda1 rights and asked him if he understood them. Bates said he did.

Detectives then questioned Bates about his role in the death of Jose Sanchez. After

the detectives began speculating that Bates and Sanchez had engaged in a fight that

got out of control, Bates replied, “I’m not saying anything right now.” Rather than

ceasing questioning or seeking clarification as to the meaning of “right now,” the

detectives persisted in questioning Bates, who thereafter confessed to killing

Sanchez and told the detectives how he did it. The California Superior Court

admitted the confession over Bates’s objection. The jury convicted him of second-

degree murder. The California Court of Appeal affirmed the admission of Bates’s

confession, concluding that Bates had not unambiguously invoked his right to

remain silent. After exhausting his state remedies, Bates filed a federal habeas

petition. The district court denied the petition but issued a certificate of

appealability on whether Bates had unequivocally invoked his right to silence. We

review the district court’s denial de novo. Arnold v. Runnels, 421 F.3d 859, 862

(9th Cir. 2005).

      Bates argues that admission of his confession was an unreasonable

application of clearly established federal law as determined by the Supreme Court,

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                           2
and that his habeas petition must therefore be granted. See 28 U.S.C. § 2254(d)(1).

We agree that his statement, “I’m not saying anything right now,” cannot

reasonably be interpreted as anything but a facially unambiguous invocation of the

right to remain silent. See Anderson v. Terhune, 516 F.3d 781, 787 (9th Cir.) (en

banc), cert. denied, 129 S. Ct. 344 (2008); see also Arnold, 421 F.3d at 865. Even

if the words “right now” temporally limited the invocation, the detectives were

under a clearly established obligation at least to seek clarification.

      We reject the State’s position that the context in which the statement was

made rendered Bates’s statement ambiguous enough that the detectives could

continue to question him. It is an unreasonable application of Miranda and Davis

v. United States, 512 U.S. 452 (1994), to use context “to transform an

unambiguous invocation into open-ended ambiguity.” Anderson, 516 F.3d at 787.

In fact, the context undercuts the State’s argument. Earlier in the interview Bates

maintained that he lacked knowledge of the homicide, but the statement, “I’m not

saying anything right now,” expressed unwillingness to speak rather than

ignorance. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (invocations of

Miranda rights will be interpreted “as ordinary people would understand them”).

The State also relies on post-invocation actions to demonstrate that Bates’s




                                           3
invocation was ambiguous, but such reliance is contrary to clearly established law.

See Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam).

      The State next posits that by asserting, “I’m not saying anything right now,”

Bates merely expressed his desire not to affirm or deny the detectives’ hypothesis

about Sanchez’s death. This speculation about Bates’s motives “misses the point,”

because any desire Bates had to evade comment was perfectly consistent with his

unambiguously expressed desire to remain silent. Anderson, 516 F.3d at 788. The

appellate court’s decision to affirm the admission of Bates’s confession was

therefore “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003).

      Despite the clear error, we nonetheless conclude that admission of the

confession was harmless. The record is replete with evidence that Bates was the

killer. Forensic evidence included evidence that Sanchez was extremely

intoxicated, lying on his back when he was brutally attacked, his head bashed in.

Bates was blood-spattered and bloody rocks lay nearby Sanchez’s body. There

was a witness to a fight between Bates and Sanchez earlier in the day. All of this

evidence supported the conviction of second-degree murder without resort to the

confession.




                                          4
      Ironically, the only support for Bates’s self-defense and heat-of-passion

theories was contained in the confession. Further, if Bates had decided to testify to

his state of mind, the confession could have been admitted anyway as

impeachment evidence. Harris v. New York, 401 U.S. 222 (1971). We can

therefore say with assurance that admission of the confession did not have a

“substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks

omitted).

      AFFIRMED.




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