                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0720n.06

                                           No. 08-5443                                    FILED
                                                                                      Nov 17, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


SAMUEL YENAWINE,                                         )
                                                         )         ON APPEAL FROM THE
       Petitioner-Appellant,                             )         UNITED STATES DISTRICT
                                                         )         COURT     FOR     THE
v.                                                       )         WESTERN DISTRICT OF
                                                         )         KENTUCKY
JOHN MOTLEY, Warden                                      )
                                                         )
       Respondent-Appellee.                              )



BEFORE:        DAUGHTREY, GILMAN, McKEAGUE, Circuit Judges.

       PER CURIAM. Upon learning that he was under indictment, Samuel Yenawine turned

himself in to police in Indiana and was extradited to Louisville, Kentucky. During interrogation,

Yenawine told police officers, “I might need to speak with my lawyer about whether I should talk

with you.” Yenawine then named his attorney and produced his attorney’s business card, which

included printed text that stated, among other things, that he would not answer questions without his

lawyer present. The police officers then mistakenly informed Yenawine that his attorney could not

represent him due to a conflict, and Yenawine proceeded to give a recorded confession. This

confession was used at trial over Yenawine’s objection, and he was convicted of arson and various

other crimes. The Kentucky Supreme Court reversed the arson conviction on other grounds, but

upheld the remaining convictions, holding that Yenawine’s confession was admissible because

Yenawine did not make an unambiguous or unequivocal request for counsel. Yenawine v.
No. 08-5443
Yenawine v. Motley

Commonwealth, No. 2003-SC-0283-MR, 2005 WL 629007, at *3 (Ky. Aug. 25, 2005) (citing

Davis v. United States, 512 U.S. 452, 462 (1994)). On August 22, 2006, Yenawine filed a petition

for writ of habeas corpus. Under the relevant subsection, the writ should be granted only if the state-

court proceedings “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.” 28 U.S.C. § 2254(d)(1). The district court denied Yenawine’s petition, reasoning that the

state-court decision was not an unreasonable application of Davis.               Yenawine v. Motley,

No. 3:06CV- 413-R, 2008 WL 347820, at *8 (W.D. Ky. Feb. 7, 2008). This appeal followed.

       We conduct de novo review of a district court’s denial of habeas corpus. Abela v. Martin,

380 F.3d 915, 924 (6th Cir. 2004). In Abela, this court granted habeas relief to a petitioner who gave

a statement that was used at trial and solicited under facts that are strikingly similar to those of this

case: (1) the petitioner was under police interrogation when he stated, “[M]aybe I should talk to an

attorney”; (2) the petitioner named his attorney and gave the police officer his attorney’s business

card; and (3) shortly thereafter, the police continued questioning the petitioner and he gave a

statement. Id. at 919. The court held that the state-court decision admitting Abela’s statement at

trial was contrary to clearly established federal law. Id. at 927. Abela thus controls the outcome in

this case. We therefore must hold that the state-court decision allowing the use of Yenawine’s

statement at trial was contrary to clearly established federal law. Accordingly, we REVERSE the

district court’s judgment and REMAND to the district court with instructions to grant the writ of

habeas corpus, unless the state elects to retry Yenawine within ninety days of the date of this

opinion’s entry.

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