                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            AUG 14 2012

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

IAN CLIETT,                                       No. 12-55146

              Petitioner - Appellee,              D.C. No. 2:05-cv-06616-SJO-JC

  v.
                                                  MEMORANDUM *
L.E. SCRIBNER, WARDEN

              Respondent - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                        Argued and Submitted July 11, 2012
                               Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**

       Respondent-appellant L.E. Scribner appeals the district court’s conditional

grant of petitioner-appellee Ian Cliett’s petition for a writ of habeas corpus under

28 U.S.C. § 2254 based on his claim that incriminating statements he made during

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Timothy Mark Burgess, United States District Judge
for the District of Alaska, sitting by designation.
a custodial interrogation were admitted at his trial in violation of Miranda v.

Arizona, 384 U.S. 436 (1966). We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.

       The California Court of Appeal’s decision finding ambiguity in Cliett’s

invocation based on his prior cooperation with the detectives was an unreasonable

application of clearly established federal law as recognized by our precedents. See

28 U.S.C. § 2254(d)(1). Supreme Court cases are the only definitive source of

“clearly established” federal law under the Antiterrorism and Effective Death

Penalty Act; however, “we must follow our cases that have determined what law is

clearly established.” Byrd v. Lewis, 566 F.3d 855, 860 n.5 (9th Cir. 2009)

(citations omitted).

      A person in custody has the right to cut off questioning at any time, and an

invocation of that right must be “scrupulously honored.” Miranda, 384 U.S. at

479. When Cliett stated, “I choose to remain silent,” in direct response to the

detective’s inquiry about whether he was willing to talk, he unambiguously and

unequivocally invoked his right to remain silent. See Anderson v. Terhune, 516

F.3d 781, 787 (9th Cir.) (en banc) (“Using ‘context’ to transform an unambiguous

invocation into open-ended ambiguity defies both common sense and established

Supreme Court law.”), cert. denied, Cate v. Anderson, 555 U.S. 818 (2008); see


                                           2
also Miranda, 384 U.S. at 445 (“The mere fact that [the suspect] may have

answered some questions or volunteered some statements on his own does not

deprive him of the right to refrain from answering any further inquiries . . . .”).

The detectives failed to scrupulously honor Cliett’s clear invocation by continuing

to question him about whether he was willing to talk. See Anderson, 516 F.3d at

790 (“Where the initial request to stop the questioning is clear, ‘the police may not

create ambiguity in a defendant’s desire by continuing to question him or her about

it.’” (citation omitted)).

       The district court correctly held that the admission of Cliett’s post-arrest

statements “had substantial and injurious effect or influence in determining the

jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal

quotation marks and citation omitted). Cliett confessed that he was at the scene of

the murder and, more specifically, had entered rival gang territory at night with a

fellow gang member who he knew was seeking revenge. The prosecutor relied

heavily on Cliett’s admissions during opening and closing, and, as the district court

noted, the other evidence was “less than overwhelming.”

       AFFIRMED.




                                           3
                                                                             FILED
Cliett v. Scribner, No. 12-55146                                              AUG 14 2012

                                                                          MOLLY C. DWYER, CLERK
TALLMAN, Circuit Judge, with whom N.R. SMITH, Circuit Judge, and .S. C O U R T OF APPE ALS
                                                                U

BURGESS, District Judge, join, concurring:

      The California Court of Appeal, viewing the entire record in context,

reasonably determined that the detectives made no effort to coerce, intimidate, or

harass Cliett into talking; the detectives were surprised when Cliett allegedly

invoked his right to remain silent in light of his prior cooperation and initial

indication that he was willing to talk; the detectives’ responses to the purported

invocation were “exclamations of surprise”; and, immediately after those

exclamations, Cliett stated, “I’ll talk,” and signed a written Miranda waiver. Based

on these factual determinations, I would hold that the Court of Appeal reasonably

concluded that, taken in context, Cliett failed to unambiguously and unequivocally

invoke his right to remain silent.

      However, our prior precedents, dealing with a state court’s conclusion that

surrounding circumstances similar to those presented here make an invocation

ambiguous, hold that such a conclusion was contrary to and an unreasonable

application of clearly established Supreme Court authority. See Anderson v.

Terhune, 516 F.3d 781, 787 (9th Cir.) (en banc), cert. denied, Cate v. Anderson,

555 U.S. 818 (2008). As I have expressed in the past, I disagree not only with this

reading of Miranda and its progeny, but also with the utter lack of deference it
accords to state courts’ reasoned decisions. See, e.g., id. at 797–801 (Tallman, J.,

dissenting); Doody v. Ryan, 649 F.3d 986, 1029–30 (9th Cir.) (en banc) (Tallman,

J., dissenting), cert. denied, 132 S. Ct. 414 (2011). Nevertheless, I am bound by

our precedents to the extent that they have declared what constitutes clearly

established law. See, e.g., Byrd v. Lewis, 566 F.3d 855, 860 n.5 (9th Cir. 2009).

      I therefore reluctantly concur.
