                                                                           FILED
                           NOT FOR PUBLICATION                               DEC 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JERRY MICHAEL SMITH,                             No. 10-15009

              Petitioner - Appellant,            D.C. No. 2:06-cv-01762-RCT

  v.
                                                 MEMORANDUM *
RICHARD KIRKLAND; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Richard C. Tallman, Circuit Judge, Presiding

                     Argued and Submitted December 8, 2010
                            San Francisco, California

Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.

       Petitioner Jerry Michael Smith was convicted of first degree murder by

means of lying in wait, with a firearm enhancement, in California Superior Court.

Before trial, Smith moved to suppress his confession as involuntary and in



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1996). The court

held an evidentiary hearing and denied Smith’s motion. The California Court of

Appeal affirmed the superior court’s judgement that the confession was voluntary.

In a 28 U.S.C. § 2254 petition for a writ of habeas corpus, Smith argued that the

state courts erred in finding his confession voluntary. The district court denied

Smith’s petition. We affirm.

      This court reviews de novo a district court’s decision to grant or deny a

habeas corpus petition under 28 U.S.C. § 2254. Yee v. Duncan, 463 F.3d 893, 897

(9th Cir. 2006). Because the Anti-Terrorism and Effective Death Penalty Act

applies, this court may grant relief only if the state court’s adjudication of the

merits of the case “(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 (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.” 28 U.S.C. § 2254(d)(1)-(2).

      Smith argues that his confession was involuntary because police officers

engaged in an impermissible two-step interrogation under Missouri v. Seibert, 542

U.S. 600 (2004) and because he was coerced.

      1. Two-step interrogation claim


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      The “two-step interrogation strategy, termed ‘question first’ . . . called for

the deliberate with-holding of the Miranda warning until the suspect confessed,

followed by a Miranda warning and a repetition of the confession already given.”

United States v. Williams, 435 F.3d 1148, 1154 (9th Cir. 2006) (citing Seibert, 542

U.S. at 604, 609-11 (Souter, J., plurality opinion)). This argument fails because

the California Court of Appeal’s conclusion that Smith did not confess until after

hearing and waiving his Miranda rights is not an unreasonable determination of the

facts. Smith neither divulged incriminating evidence nor made inculpatory

admissions prior to the invocation of his rights.

      2. Coercion claim

      In support of his coercion claim, Smith asserts that police officers (1)

deliberately violated Miranda by ignoring his requests for counsel, and (2)

promised leniency for his wife in exchange for a confession.

       Once a suspects invokes his right to counsel, questioning must cease and

may not resume in the absence of counsel unless the suspect initiates further

discussions. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, the

request must be unambiguous and clear such “that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney.”

Davis v. United States, 512 U.S. 452, 459 (1994). “If the statement fails to meet


                                           3
the requisite level of clarity, Edwards does not require that the officers stop

questioning the suspect.” Id. While Smith mentioned an attorney several times

before the officers ended his interrogation, we cannot say that the California Court

of Appeal unreasonably applied clearly established federal law when it determined

that his statements were not unambiguous requests for counsel.

      Law enforcement may not extract a confession “by any sort of threats or

violence, [or] obtained by any direct or implied promises, however slight, [or] by

the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976)

(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897). However,

“speculation that cooperation will benefit the defendant or even promises to

recommend leniency are not sufficiently compelling to overbear a defendant’s

will.” United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994). To support his

coercion claim, Smith relies on Lynumn v. Illinois, 372 U.S. 528, 533 (1963). This

case, however, is distinguishable from Lynumn because it was Smith who initiated

the conversation about his wife and it was his idea to bargain for leniency. Thus,

the California Court of Appeal’s conclusion that Smith was not coerced into

confessing is not contrary to clearly established federal law.

      AFFIRMED.




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