                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KEVIN JONES, JR.,                    No. 13-56360
       Petitioner-Appellant,
                                        D.C. No.
             v.                 2:10-cv-05071-GW-PLA

K. HARRINGTON,
      Respondent-Appellee.               OPINION


      Appeal from the United States District Court
         for the Central District of California
       George H. Wu, District Judge, Presiding

        Argued and Submitted August 31, 2015
                Pasadena, California

                   Filed July 22, 2016

   Before: Alex Kozinski, Diarmuid F. O’Scannlain,
           and Jay S. Bybee, Circuit Judges.

               Opinion by Judge Bybee;
             Dissent by Judge O’Scannlain
2                     JONES V. HARRINGTON

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s judgment denying
California state prisoner Kevin Jones’s habeas corpus petition
challenging his murder conviction, and remanded with
instructions to grant the writ, in a case in which Jones, after
hours of police questioning with little progress, told the
officers “I don’t want to talk no more.”

    The panel held that any reasonable jurist would have to
conclude that when Jones said he did not want to talk “no
more,” he meant it, and that by continuing to interrogate
Jones after his invocation of his right to remain silent, the
officers squarely violated Miranda v. Arizona. The panel
wrote that the government cannot use against Jones anything
he said after his invocation, and held that allowing the state
to use his post-invocation statements against him, even to
argue that his initial invocation was ambiguous, is contrary to
clearly established Supreme Court case law.

    Dissenting, Judge O’Scannlain wrote that whether one
believes that the California courts’ determination that Jones’s
statement was not unambiguous when considered in full
context to be correct or not, that determination rests on a
reasonable application of clearly established Supreme Court
law to the facts of the case and must therefore stand under the
deferential standard of review.


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

                       COUNSEL

Kathryn A. Young (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.

David Glassman (argued), Stephanie A. Miyoshi, and Ana R.
Duarte, Deputy Attorneys General; Lance E. Winters, Senior
Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Kamala D. Harris, Attorney
General of California; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
4                   JONES V. HARRINGTON

                          OPINION

BYBEE, Circuit Judge:

     The Los Angeles Police Department suspected that
defendant Kevin Jones was involved in a gang shooting that
left one person dead and two injured. Detectives picked
Jones up and began interrogating him. After hours of
questioning, and little progress, Jones finally told the officers
“I don’t want to talk no more.” Undeterred, the officers
continued questioning Jones, and eventually, he made a
number of incriminating statements. Jones’s statements were
the lynchpin of the state’s prosecution against him—and
Jones was convicted and sentenced to seventy-five years to
life.

    On direct appeal, Jones contended that officers were
wrong to continue to interrogate him after he invoked his
right to remain silent, and that his incriminating statements
should not have been used against him. The California Court
of Appeal held that Jones did not unambiguously invoke his
right to remain silent, so no suppression was warranted. It
reasoned that after officers continued to interrogate Jones
with only a single follow-up question, he continued to talk
and made statements that cast some doubt on whether he had
actually invoked his right to remain silent.

    But the Supreme Court has been clear on this point: When
a suspect invokes his right to silence, the officers’s
interrogation must cease. Period. See Miranda v. Arizona,
384 U.S. 436, 444 (1966). By continuing to interrogate Jones
after his invocation, the officers squarely violated Miranda.
That means the government cannot use against Jones
anything he said after his invocation. And that includes using
                    JONES V. HARRINGTON                         5

Jones’s subsequent statements to “cast retrospective doubt on
the clarity of [his] initial request itself.” Smith v. Illinois,
469 U.S. 91, 98–99 (1984) (per curiam); see Davis v. United
States, 512 U.S. 452, 458 (1994); Miranda, 384 U.S. at 444.
Allowing the state to use Jones’s post-invocation statements
against him, even to argue that his initial invocation was
ambiguous, is thus contrary to clearly established Supreme
Court case law. Once Jones said he wished to remain silent,
even one question was one question too many.

    We hold that any reasonable jurist would have to
conclude that when Jones said he did not want to talk “no
more,” he meant it. The Court of Appeal’s decision is both
contrary to and an unreasonable application of clearly
established Supreme Court law, and it is based on an
unreasonable determination of the facts. Further, given the
pivotal role Jones’s statements played at trial, the trial court’s
error was not harmless. We reverse the judgment of the
district court and remand with instructions to grant the writ.

                                I

A. The Shooting

    In August of 2003, three teenagers—members of the
Eight Treys Gangster Crips—were stopped at a gas station
that bordered the territory of neighboring rival gang Westside
Rolling 90s Crips. A black Ford pulled up to the teens. An
African-American male wearing a Cleveland Indians cap
leaned out the passenger window and shouted, “F— [Eight
Treys]. This is Westside Rolling Crips.” The Ford then
drove off.
6                  JONES V. HARRINGTON

    The three teenagers finished pumping their gas, and
pulled out of the gas station into the intersection. Moments
later, the black car reappeared on their right side. The driver
of the black car, a “[l]ight skinned” African-American, made
a Rolling 90s gang sign, and then turned and said something
to his passenger. The passenger lifted himself onto the
window frame of his door. He leveled a semi-automatic
weapon at the teens, and opened fire. Two of the teens were
struck, along with a third person who was driving nearby.
One of the teens died from his wounds later that night.

    On August 15, 2003, police officers stopped Jones, who
was driving his black two-door Ford Escort. The officers had
previously received a tip from an informant that Jones was a
member of the Rolling 90s who drove a car like the one
identified in the shootings. The police found a Cleveland
Indians cap in Jones’s car, and after impounding the car,
matched fingerprints on the outside door to a person who
belonged to a gang affiliated with the Rolling 90s. Police
brought Jones in for questioning that night.

B. The Interrogation

    Jones was brought to the police station some time
between 9:00 and 9:40 p.m. He was read his Miranda rights
and interviewed later that night, beginning at 12:33 a.m., by
Detectives Kevin Jolivette and Bill Fallon. Jones was
nineteen years old, had graduated from technical school, and
worked full-time for UPS. The interview lasted between two
and three hours.

    At the outset of the interview, Jones told the detectives
that he owned his black Ford Escort, and that no one else
drove it. He initially insisted that he had no knowledge of the
                   JONES V. HARRINGTON                        7

shooting, and that on the day in question he had driven
straight home after finishing work.

    The detectives lied to Jones, telling him they had
incriminating evidence which did not actually exist. The
detectives told Jones that witnesses had identified his car as
the one used in the shooting and that the car appeared on
surveillance video from the gas station. The detectives held
consistently to the ruse, insisting to Jones that they already
knew he and his car were involved with the shooting, and
implored him to come clean about his role. The police told
Jones that he would receive more lenient punishment if he
admitted to being only the driver rather than the shooter or
the person whose idea the shooting was.

    Over the course of the interview, Jones’s story changed
several times. First, he told the police that he had no personal
knowledge of the shooting, and gave a somewhat inconsistent
story about how he learned of the shooting from a barber on
the street while driving home a few days after the shooting.
Jones stated that, on the day of the shooting, he came straight
home from work, parked his car at his house around 5:00 p.m.
or 5:30 p.m., and then walked to the gym. He stated that
around 6:45 he noticed his car was missing, but assumed it
would be returned, and went to the gym anyway. His
explanations for why he assumed the car would be returned
changed somewhat, but he said that by the time he got home
from the gym, the car was back. As detectives continued to
press Jones about his implausible story, the following
exchange occurred:

       Jolivette: Kevin, do you think – why don’t
       you stop this man.
8                  JONES V. HARRINGTON

       Jones: All right.

       Jolivette: Stop this. The thing is you drove a
       car, it shows that on the tape and that’s all I’m
       going to put down, as far as what you were
       doing. You drove the car. You just didn’t
       know it was going to happen like that. Kevin,
       sit up, man.

       Jones: I don’t want to talk no more, man.

       Jolivette: I understand that, but the bottom
       line is –

       Jones: You don’t want to hear what I’m
       telling you.

       Jolivette: I’m so sorry. I can’t – you’re
       mumbling, you got to speak up. I got bad
       hearing.

       Jones: I’m telling you all.

From there, questioning continued as normal, and eventually
Jones made incriminating statements. Most importantly, he
admitted to driving the car during the shooting. He claimed
that a stranger with a gun jumped into his car, ordered him to
drive to the gas station, yelled at the teenagers, and then
hopped out of his car at the intersection and began shooting.

   Officers arrested Jones a few days later and interviewed
him again. The detectives pressed him on the implausibility
of his earlier statements about driving a stranger to the
shooting, but Jones again stated that was what happened.
                  JONES V. HARRINGTON                      9

C. The Trial

    The case against Jones revolved around the statements he
made during the police interrogations. In her closing
argument, the prosecutor explained there were no witnesses:
“From the beginning, I had told you that there have been no
identifications of Mr. Jones. None of the surviving victims
were able to pick him out of the photographic lineup. None
of them came into court and ID'd Mr. Jones.” No physical
evidence connected Jones to the shooting. Indeed, witness
testimony cut in favor of Jones’s case: Witnesses stated that
the car involved in the shooting was different than Jones’s
car, and Jones’s baseball cap was different from the one
witnesses described.

    Instead, the government relied on Jones’s statements.
During her opening statement, the prosecutor told the jury
that “you’re going to hear Jones’ own words which convict
him . . . of being the driver in this case.” The prosecutor
concluded “Through all of these lies, you will have his
admission that he drove in the shooting.” During closing
arguments the prosecutor again relied heavily on Jones’s
statements:

       So what do you have? You have Mr. Jones by
       his own words identifying himself as the
       driver in this shooting . . . [H]e tells you he
       was the driver in the shooting. And that’s it.
       That’s all you need. That’s evidence beyond
       a reasonable doubt that he is the driver in the
       shooting . . . Once you review those tapes, if
       you believe those tapes, that’s the end of the
       inquiry for Mr. Jones. . . . So when you look
       through Jone[’s] taped statements, his words
10                 JONES V. HARRINGTON

       convicting himself as the driver in the
       shooting is all that you need. That is proof
       beyond a reasonable doubt.

   The jury convicted Jones of first degree murder, two
counts of attempted murder, two counts of shooting at an
occupied motor vehicle, and assault with a firearm. The trial
court sentenced Jones to five years, plus 75 years to life.

D. Post-Trial Review

    Jones appealed to the California Court of Appeal. The
court affirmed his conviction in an unpublished decision. It
ruled on Jones’s Miranda argument in a single paragraph,
reasoning that Jones’s statement that he did not “want to talk
no more” was ambiguous in light of the statements he made
after:

       At a single point, midway through the first
       interview, appellant said, “I don't want to talk
       no more, man.’ His next sentence, however,
       was, ‘You don't want to hear what I'm telling
       you.” Taken in context, considering [Jones’s]
       willingness to talk with the detectives before
       and after that point in the interview, [Jones]
       was expressing frustration with the detectives’
       refusal to believe him, rather than
       unambiguously invoking his right to remain
       silent.

The court thus relied on the fact that Jones’s next sentence
after saying he did not want to talk—made in response to
officers continuing to question him—made his initial
invocation ambiguous. Jones filed a petition for review with
                    JONES V. HARRINGTON                       11

the California Supreme Court, which was denied without
comment.

    Jones then filed a federal habeas petition. The magistrate
judge filed a Final Report and Recommendation—a report
summarily adopted by the district judge—recommending
denial of Jones’s petition. Because the district judge adopted
the magistrate judge’s report, we look to this report as the
decision. But curiously, in granting the certificate of
appealability, the district judge’s analysis suggested that the
State violated Miranda here. The district judge observed that
Jones’s statement was a “seemingly unambiguous” invocation
of his right to remain silent. “Petitioner said, ‘I don’t want to
talk no more, man.’ Aside from mentioning Miranda by
name, what could be clearer?”

    Like the California Court of Appeal, the magistrate
judge’s report held Jones’s request was ambiguous in light of
the statements he made after invoking his right to silence.
The court also relied on the fact that Jones did not ask to
remain silent again after his initial invocation.

                               II

    We review the district court’s denial of a habeas petition
de novo. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th Cir.
2008). The Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA) governs Jones’s petition. See Woodford v.
Garceau, 538 U.S. 202, 210 (2003). We may grant the
petition only if the state court’s adjudication of Jones’s claim
“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
“resulted in a decision that was based on an unreasonable
12                 JONES V. HARRINGTON

determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

    A decision is “contrary to” Supreme Court precedent
where “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). We may not
grant habeas relief unless the state court's determination “was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011). “[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.” Williams, 529 U.S. at 410
(emphasis removed). “A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as
fair-minded jurists could disagree on the correctness of the
state court’s decision.” Richter, 562 U.S. at 101 (internal
quotation marks omitted). The standard is meant to be
“difficult to meet.” Id. at 102.

    Similarly, the standard for finding that a state court made
an unreasonable determination of the facts is “daunting,” and
“will be satisfied in relatively few cases.” Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004). But we can “conclude
the decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence.” Maxwell v. Roe,
628 F.3d 486, 503 (9th Cir. 2010). And where the state court
makes factual findings “under a misapprehension as to the
correct legal standard,” “the resulting factual determination
will be unreasonable and no presumption of correctness can
                   JONES V. HARRINGTON                       13

attach to it.” Taylor, 366 F.3d at 1001; see also Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).

    In this case, the California Supreme Court summarily
denied review. Looking through to the last reasoned state
court decision, the California Court of Appeal’s decision will
serve as the focus of our analysis. See Cannedy v. Adams,
706 F.3d 1148, 1158 (9th Cir. 2013) amended on denial of
reh’g, 733 F.3d 794 (9th Cir. 2013).

                              III

    The California Court of Appeal determined that Jones’s
statement that he “don’t want to talk no more” was made
ambiguous by statements he made later in the interrogation.
As we demonstrate in Part A, this determination was contrary
to and an unreasonable application of clearly established
Supreme Court law. 28 U.S.C. § 2254(d)(1). By continuing
to interrogate Jones after he had invoked his right to remain
silent, officers violated Miranda—which means the
government cannot use against Jones anything he said after
his invocation. This includes using Jones’s subsequent
statements to police to “cast retrospective doubt on the clarity
of the initial request itself.” Smith. 469 U.S. at 100. “To
permit the continuation of custodial interrogation” after
Jones’s invocation “would clearly frustrate the purposes of
Miranda.” Michigan v. Mosley, 423 U.S. 96, 102 (1975). To
the extent the California Court of Appeal read ambiguity into
Jones’s invocation—based on statements he made later—that
finding was “an unreasonable determination of the facts.”
28 U.S.C. § 2254(d)(2). Because we also conclude in Part B
14                    JONES V. HARRINGTON

that the admission of this evidence at trial was prejudicial, we
reverse the district court’s decision denying the writ.1

A. Violation of clearly established law

      1. Officers violated Miranda by continuing to
         interrogate Jones after he invoked his right to remain
         silent

    The Supreme Court has made clear that once a person
being questioned “indicates in any manner that he does not
wish to be interrogated, the police may not question him.”
Miranda, 384 U.S. at 445. “The mere fact that he 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.” Id. To make sure that we
understood this procedure, the Court repeated it: “If the
individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.” Id. at 473–74. “[A]ny statement
taken after the person invokes his privilege cannot be other
than the product of compulsion, subtle or otherwise.” Id. at
474. Once a person has “exercise[d] . . . his option to
terminate questioning[,] he can control the time at which
questioning occurs, the subjects discussed, and the duration
of the interrogation. . . . [T]he admissibility of statements
obtained after the person in custody has decided to remain
silent depends under Miranda on whether his right to cut off
questioning was scrupulously honored.” Mosley, 423 U.S. at
103–04 (internal quotation marks omitted).


  1
    Because we reverse on Miranda grounds, we need not reach Jones’s
alternative argument that his statements to police were involuntary. See
Dickerson v. United States, 530 U.S. 428, 433–34 (2000).
                    JONES V. HARRINGTON                        15

    The Supreme Court has left us with no doubt that this
prohibition on continued questioning is a “bright-line” rule,
“a prophylactic safeguard whose application does not turn on
whether coercion in fact was employed.” Id. at 98, 99 n.8.
“[C]onjecture and hair-splitting” is what “the Supreme Court
wanted to avoid when it fashioned the bright-line rule in
Miranda.” Anderson, 516 F.3d at 790; cf. Davis, 512 U.S. at
461 (noting that the benefit of a bright-line rule is the “clarity
and ease of application” that “can be applied by officers in
the real world . . . without unduly hampering the gathering of
information” by forcing them “to make difficult judgment
calls” with a “threat of suppression if they guess wrong”).

    Here, there is no doubt officers violated Miranda.
Certainly, Jones saying he “did not want to talk no more”
qualifies as “indicat[ing] in any manner that he does not wish
to be interrogated.” Miranda, 384 U.S. at 445 (emphasis
added). And there is no real dispute that officers continued
interrogating Jones. Officers knew well that he was invoking
his right, but continued to push him for more answers: “I
understand that but—.” No fairminded jurist could
reasonably interpret this statement to be “ceasing” the
interrogation. Id.

    2. Jones’s invocation was not ambiguous under Berghuis
       v. Thompkins

    The Supreme Court recently added another layer to the
Miranda inquiry: Whether the suspect invoked his right to
remain silent unambiguously. Berghuis v. Thompkins,
560 U.S. 370, 381 (2010). Up until Thompkins, the right to
remain silent could be invoked in “any manner.” Miranda,
384 U.S. at 445. On the other hand, the right to counsel could
be invoked only “unambiguously.” Thompkins, 560 U.S. at
16                 JONES V. HARRINGTON

381. In Thompkins, the Court clarified that the requirement
that the right to counsel be invoked “unambiguously” would
now be applied with respect to requests to remain silent. Id.
Because we must now apply the rules from right to counsel
cases to right to silence cases like Jones’s, we first walk
through the right to counsel caselaw.

    In Miranda, the Court held that the right to remain silent
could be invoked “in any manner” and that the interrogation
must then “cease.” Miranda, 384 U.S. at 445. By contrast,
with respect to the right to counsel, Miranda announced a
slightly different rule: “If the individual states that he wants
an attorney, the interrogation must cease until an attorney is
present.” 384 U.S. at 474 (emphasis added). The scope of
the two rights was thus not coextensive—the Court in
Miranda was unequivocal on what officers must do when an
accused invoked his right to silence; it was not as clear what
they had to do when the right to counsel was invoked.

    From there the caselaw diverged into two lines: One
addressing invocations of the right to silence, the other
addressing invocations of the right to counsel. In Michigan
v. Mosley, 423 U.S. 96 (1976), with respect to the right to
silence, the Court clarified that Miranda did not mean that
“once a person has indicated a desire to remain silent,
questioning may be resumed only when counsel is present,”
id. at 104 n.10, but repeated what Miranda had said: the
suspect’s “right to cut off questioning” must be “fully
respected,” id. at 104.

    In Edwards v. Arizona, 451 U.S. 477 (1981), the Court
continued to develop the requirements for invocations of the
right to counsel. It held that “when an accused has invoked
his right to have counsel present during custodial
                   JONES V. HARRINGTON                      17

interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further
police-initiated custodial interrogation even if he has been
advised of his rights.” Id. at 484 (footnote omitted). This
was a change—a strengthening of the accused’s rights—in
the right to counsel: “Edwards established a new test for
when . . . waiver would be acceptable once the suspect had
invoked his right to counsel: the suspect had to initiate
subsequent communication.” Solem v. Stumes, 465 U.S. 638,
646 (1984). See id. at 648. This was different than the test
for the right to silence, which allowed police to continue
questioning after some delay. Mosley, 423 U.S. at 118.

    Right to counsel cases then addressed the requirement at
issue in this case: How we determine that “the suspect [has]
unambiguously request[ed] counsel.” Davis v. United States,
512 U.S. 452, 459 (1994). This development in the right to
counsel context makes sense. Suspects can invoke their right
to remain silent in many ways. They may invoke their right
by simply remaining silent, or they may indicate in other
ways—including by words—that they do not want to talk
with police. By contrast, invoking the right to counsel cannot
be accomplished by silence or pantomime, but requires the
suspect to articulate specifically that she wants counsel. This
line of cases explained that an “ambiguous or equivocal”
request for counsel does not require police questioning to end
and places no limits on how the interrogation can be used
later. Id.

    But the Court also held that the standard for invoking the
right to counsel unambiguously was not a demanding one. A
suspect need only invoke his rights “sufficiently clearly that
a reasonable police officer in the circumstances would
understand the statement to be [such] a request.” Id. at 459.
18                    JONES V. HARRINGTON

He need not specifically reference his constitutional rights,
nor need he use any specific terminology. Id.

    The Court clarified that in determining whether an
invocation of the right to counsel is ambiguous, “[u]nder
Miranda and Edwards, . . . an accused’s post request
responses to further interrogation may not be used to cast
doubt on the clarity of his initial request for counsel.” Smith,
469 U.S. at 92. Allowing the government to use these post-
request statements to “cast retrospective doubt” on prior
unambiguous invocations would give officers an incentive to
ignore invocations in the hopes that a suspect may be
persuaded to talk anyway. Id. at 100. “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 . . . .” Id.
at 99. Construing a person’s unambiguous invocation of his
Fifth Amendment rights by “looking to [his] subsequent
responses to continued police questioning” and whether
“considered in total, [his] statements were equivocal” is
“unprecedented and untenable.” Id. at 97 (emphasis
removed). Accordingly, “under the clear logical force of
settled precedent, an accused’s postrequest responses to
further interrogation may not be used to cast retrospective
doubt on the clarity of the initial request itself. Such
subsequent statements are relevant only to the distinct
question of waiver.” Id. at 100.2


     2
      The dissent argues that we have unfairly attributed “sweeping
propositions” to Smith. But we and the dissent seem to agree on Smith’s
propositions. The dissent characterizes Smith’s holding as: “[O]nce a
suspect clearly invokes his right to counsel, officers may not continue to
question him.” Dissenting Op. at 36. Indeed, this is the same holding we
                       JONES V. HARRINGTON                               19

    Finally, in Thompkins, the Court noted it had “not yet
stated” whether the rules about ambiguity it had developed in
the context of invocations of the right to counsel should also
apply in the context of invocations of the right to silence.
Thompkins, 560 U.S. at 381. The Court held “there 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 as issue in Davis.” Id.
Thus, the Court held that the same “standards” about



rely on from Miranda: Once an “individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 U.S. at 473–74. Both cases
stand for the simple proposition that officers must stop questioning a
suspect once he unambiguously invokes his right to silence—and if they
do not—the suspect’s statements can no longer be used against him.

      But the dissent appears to suggest something quite different. The
dissent argues for a standard that would permit officers to ask some
threshold number of questions before we find that officers have indeed not
“ceased” “interrogating.” The dissent makes much out of the fact that
“Detective Jolivette did not even get out a complete sentence.” Dissenting
Op. at 37. The dissent says that this is nothing like Smith where the
officers interrogated the suspect “at length” after his invocation. But the
dissent is suggesting we create a gray area about how much interrogation
is interrogation enough. And that is exactly what the Supreme Court told
us not to do when it made Miranda a “bright-line” rule. Smith, 469 U.S.
at 99 n.8. There can be no serious dispute that officers did not “cease”
their interrogation of Jones once he had unambiguously told them he
wanted to remain silent. And there the Miranda analysis must end.

     The dissent also says our decision “would have sweeping
consequences for police officers.” Dissenting Op. at 38. But this parade
of horribles is baseless. The rule governing interrogations is the same
after this case as it was before—it comes straight from Miranda: If a
suspect unambiguously states he wants to remain silent, the officers must
stop interrogating. Full stop.
20                 JONES V. HARRINGTON

ambiguity it had developed in Davis and its progeny should
now apply to invocations of the right to silence. Id.

    The government and the dissent urge us to require that
Jones’s statements be “unambiguous” in light of Thompkins,
despite that this case came out long after the California
Supreme Court’s decision. Dissenting Op. at 26, 31.
Thompkins’s holding is nominally a new holding, see id. at
10–11, but in this context it is a holding in the government’s
favor because it clarified that invocations of the right to
remain silent must also be unambiguous. Under the
circumstances, we will apply Thompkins’s directive that the
same standards for finding ambiguity in the right to counsel
context should also apply to finding ambiguity in the right to
silence context.

    But Thompkins does not change much: No fairminded
jurist could determine that Jones’s invocation was ambiguous.
First, Jones’s initial request to remain silent was
unambiguous on its face, and nothing about the prior context
of the statement made it ambiguous or equivocal. Jones
stated: “I don’t want to talk no more”; in other words, he did
not want to talk anymore. See Garcia v. Long, 808 F.3d 771,
773–74 (9th Cir. 2015) (holding that a suspect answering
“no” to the question “[d]o you wish to talk to me?” was an
unambiguous request to remain silent under Miranda). Jones
did not equivocate by using words such as “maybe” or
“might” or “I think.” See Anderson, 516 F.3d at 788; cf.
Smith, 469 U.S. at 96–97 (holding that nothing in the
statement “Uh, yeah. I’d like to do that” suggested
equivocation). Nor did anything Jones did or said leading up
to this statement make it ambiguous.              During the
interrogation leading up to this point, Jones spoke little. Most
of the interrogation consisted of detectives repeatedly asking
                       JONES V. HARRINGTON                             21

Jones questions, and Jones giving short, often one-word
answers. In any event, the fact that Jones spoke to officers
for a while before invoking his right to remain silent makes
no difference. The California Court of Appeal’s decision is
simply “contrary to” and “an unreasonable application” of
Miranda. 28 U.S.C. § 2254(d)(1); Miranda, 384 U.S. at
473–74 (holding that the right to remain silent can be invoked
“any time prior to or during questioning”).

    The only statements that could cast any ambiguity on
Jones’s initial invocation were statements he made after the
fact. Indeed, the California Court of Appeal relied largely on
Jones’s statement made after officers continued interrogating
him, reasoning that because Jones made a follow-up
statement after only a single clarifying comment from
officers, his initial invocation was ambiguous. But it was
clearly established, when determining whether the invocation
of a constitutional right is ambiguous, that the California
courts could not look to post-invocation statements to “cast
retrospective doubt on the clarity of [Jones’s] initial request
itself.” Smith, 469 U.S. at 98–99.3 Officers continued to

  3
    The dissent argues that Smith v. Illinois, 469 U.S. 91 (1984), cannot
serve as “clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254 (d)(1), because Smith rested
on Miranda’s invocation of the right to counsel, not on Miranda’s
invocation of the right to silence. Dissenting Op. at 33–35. See Smith,
469 U.S. at 98-99 (discussing “the request for counsel”). The dissent
contends that only recently, in Thompkins, did the Supreme Court declare
the right to silence should be treated the same as the right to counsel.
According to the dissent, since Thompkins post-dates the California
decisions in this case, it cannot serve as the “clearly established Federal
law” required by AEDPA. Dissenting Op. at 34.

    With respect, we think the dissent is wrong. The dissenting opinion
begins by quoting Thompkins. Dissenting Op. at 26; see also id. at 31.
22                    JONES V. HARRINGTON

interrogate Jones after he had unambiguously asked to remain
silent. When Jones said “I don’t want to talk no more,” the
officer responded: “I understand that but—.” That means the
government cannot rely on Jones’s later statements to
establish that his earlier statement was ambiguous.

    And the California court’s allusion to the fact that officers
only interrogated Jones briefly after his invocation is of no
matter. Even one question was one question too many.
When an “individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.” Miranda, 384 U.S. at 473–74
(emphasis added).

    Nor does it matter, as the California court and federal
district court seemed to suggest, that Jones did not repeat his
request to remain silent later in the interrogation: “Under
Miranda, the onus [is] not on [the suspect] to be persistent in
[his] demand to remain silent. Rather, the responsibility
f[alls] to the law enforcement officers to scrupulously respect


The dissent insists that we apply Thompkins to ensure that Jones invoked
his right to remain silent “unambiguously,” but the dissent doesn’t want
us to consider the Supreme Court’s earlier cases describing what
constitutes an ambiguous or unambiguous invocation. The dissent can’t
have it both ways. Either we apply Thompkins—and with it prior cases
such as Davis, Smith, Solem, Edwards, and Miranda on which it
builds—or we must ignore it. What we cannot do is say we are going to
apply Thompkins and then ignore the standard Thompkins tells us to apply
(the standards created in its right to counsel cases). If we ignore cases
such as Davis and Smith, what standards for ambiguity are we to apply?
Some new standard? That is exactly what Thompkins told us the Court
would not do: “there 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 at issue in Davis.” Thompkins,
560 U.S. at 381.
                    JONES V. HARRINGTON                       23

[his] demand.” United States v. Lafferty, 503 F.3d 293, 304
(3d Cir. 2007). Relying on the fact that “[i]t was the
defendant, not the interrogators, who continued the
discussion,” “ignores the bedrock principle that the
interrogators should have stopped all questioning. A
statement taken after the suspect invoked his right to remain
silent ‘cannot be other than the product of compulsion, subtle
or otherwise.’” Anderson, 516 F.3d at 789–90 (quoting
Miranda, 384 U.S. at 474).

     Although we give considerable deference to the state
courts, “AEDPA deference is not a rubber stamp.” Id. at 786
(citing Miller-El v. Dretke, 545 U.S. 231, 240, 265 (2005)).
The California Court of Appeal’s determination that Jones’s
statement “I don’t want to talk no more” was ambiguous
based on his responses to further questioning, was either “an
unreasonable determination of the facts,” 28 U.S.C.
§ 2254(d)(2), or an “unreasonable application” of Miranda,
id. § 2254(d)(1). By continuing to ask questions, the officers
failed to “scrupulously honor” Jones’s simple request. We
accordingly hold that 28 U.S.C. § 2254(d) does not bar
habeas review of Jones’s Miranda claim, and we conclude,
on de novo review, that Jones’s constitutional rights were
violated when his interrogation was used at trial.

B. Harmlessness

    Miranda error does not entitle Jones to habeas relief if the
error was harmless. In AEDPA proceedings, we apply the
actual-prejudice standard set forth in Brecht v. Abrahamson,
507 U.S. 619 (1993). Under Brecht, habeas relief is only
available if the constitutional error had a “substantial and
injurious effect or influence” on the jury verdict or trial court
decision. Id. at 623 (quoting Kotteakos v. United States,
24                 JONES V. HARRINGTON

328 U.S. 750, 776 (1946)). This standard is satisfied if the
record raises “grave doubts” about whether the error
influenced the jury’s decision. Davis v. Ayala, 135 S. Ct.
2187, 2203 (2015) (brackets omitted) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)).

    Under AEDPA, we accord deference to a state court’s
harmlessness determination. Nevertheless, because the
Brecht standard that we apply on collateral review is “less
onerous” for the state than the “harmless beyond a reasonable
doubt” standard that state courts apply on direct review,
Brecht, 507 U.S. at 622–23, the Supreme Court has explained
that “it certainly makes no sense to require formal application
of both tests (AEDPA/Chapman and Brecht) when the latter
obviously subsumes the former,” Fry v. Pliler, 551 U.S. 112,
120 (2007). We therefore apply the Brecht test, but we do so
with due consideration of the state court’s reasons for
concluding that the error was harmless beyond a reasonable
doubt. Davis, 135 S. Ct. at 2198.

    In Brecht, the Supreme Court determined that the state’s
improper use of the petitioner’s post-Miranda silence for
impeachment purposes was harmless. 507 U.S. at 638–39.
The state’s physical evidence against the defendant was
“weighty,” and the state’s references to the post-Miranda
evidence were “infrequent.” Id. at 639.

    The same cannot be said here. Jones’s own incriminating
statements—made after he had invoked his right to
silence—formed the backbone of the government’s case.
Indeed, there was little other evidence before the jury. No
witnesses identified Jones in relation to the shooting.
Witnesses reported that a four-door vehicle with no body
damage had been driven in the drive-by; Jones drove a two-
                    JONES V. HARRINGTON                        25

door vehicle with extensive body damage. The only evidence
linking Jones to the shooting consisted of an informant who
told detectives that Jones was involved with a rival gang, and
that Jones drove a vehicle the same color (black) as the one
used in the shooting. It is true that, prior to invoking his right
to silence, Jones made some confusing comments about his
whereabouts during the shooting, but that was weak tea
compared with Jones’s other words admitting to the crime.
Jones likely could not have been convicted without his
confession.

    Importantly, the prosecutor repeatedly referred to Jones’s
incriminating statements, telling the jury that they could
convict beyond a reasonable doubt based only on his own
statements. The prejudice from a defendant’s confession
“cannot be soft pedaled.” Anderson, 516 F.3d at 792. “A
confession is like no other evidence”; it may be “the most . . .
damaging evidence that can be admitted” against a defendant.
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (internal
quotation marks omitted).

    Exercising “extreme caution,” as we must, “before
determining that the admission of [a] confession at trial was
harmless,” id. at 296, we conclude that the admission of
Jones’s interrogation had a substantial and injurious effect on
the jury’s decision. Brecht, 507 U.S. at 637–38. In light of
our decision, we do not reach Jones’s remaining claims.

                     IV. CONCLUSION

    The Supreme Court has repeatedly made clear that when
a suspect simply and unambiguously says he wants to remain
silent, police questioning must end. Under any reasonable
interpretation of the facts, Jones simply and unambiguously
26                 JONES V. HARRINGTON

invoked that right. Clearly established Supreme Court law
required the suppression of Jones’s interrogation. The State
shall either release Jones or grant him a new trial.

     REVERSED and REMANDED.



O’SCANNLAIN, Circuit Judge, dissenting:

    A suspect who wishes to invoke his Fifth Amendment
right to silence must do so “unambiguously.” Berghuis v.
Thompkins, 560 U.S. 370, 381–82 (2010). Well into his
interrogation, the suspect in this case made a single statement
that, standing alone, might be characterized as an
unambiguous invocation of such right. The California courts
determined, however, that the suspect’s statement was not
unambiguous when considered in full context. Whether one
believes that determination to be correct or not, it
unquestionably rests on a reasonable application of clearly
established Supreme Court law to the facts of the case before
us—and it must therefore stand under our deferential standard
of review. See 28 U.S.C. § 2254(d); Cullen v. Pinholster,
563 U.S. 170, 181 (2011).

    In reaching its conclusion to the contrary, the majority
faults the state court for failing to apply Supreme Court
precedent that post-dates the state court’s decision, attempts
to extend readily distinguishable Supreme Court precedent to
circumstances the Court has never considered, and ultimately
grants relief to Jones because the state court’s decision failed
to conform to the majority’s preferred view of the law—all of
which we are forbidden from doing under § 2254.
                   JONES V. HARRINGTON                      27

   I respectfully dissent.

                               I

                              A

   Let’s begin by restating the relevant facts.

     After he was identified as the potential driver in a gang-
related shooting that injured two teenagers and killed a third,
Kevin Jones, Jr. was brought in for questioning by the Los
Angeles Police Department. LAPD Detectives Kevin
Jolivette and Bill Fallon proceeded to interview Jones for a
period of a few hours, beginning shortly after midnight on
August 16, 2003. After being informed of his constitutional
rights, Jones spoke willingly with the detectives. Throughout
the interview, the detectives employed a ruse against Jones,
telling him that both eye witnesses and security-camera
footage identified his car as having been involved in the
drive-by shooting. The officers pressed Jones on both his and
his car’s whereabouts the night of the shooting, and they
urged him to admit his involvement in the crime.

    Jones spoke at length with the detectives, and as the
majority recounts, his story changed considerably throughout
the course of the interview. After extensive interrogation,
Jones clung to the assertion that on the evening of the crime,
his car had gone missing for several hours, even though he
admitted that no one other than him used the car. Jones
insisted that he had noticed his car missing from its parking
space that evening, but for various reasons, he thought little
of it and simply assumed that the car would be returned to
him. Rather than investigate where his car had been taken,
Jones stated that he went to a nearby gym for a couple hours
28                 JONES V. HARRINGTON

and—as luck would have it—when he returned home, his car
was back.

    The detectives pressed Jones on the implausibility of this
story, leading eventually to the following exchange:

       JOLIVETTE: Kevin, do you think – why
       don’t you stop this man.

       JONES: All right.

       JOLIVETTE: Stop this. The thing is you
       drove a car, it shows that on the tape, and
       that’s all I’m going to put down, as far as
       what you were doing. You drove the car. You
       just didn’t know it was going to happen like
       that. Kevin, sit up, man.

       JONES: I don’t want to talk no more, man.

       JOLIVETTE: I understand that, but the
       bottom line is –

       JONES You don’t want to hear what I’m
       telling you.

       JOLIVETTE: I’m so sorry. I can’t – you’re
       mumbling, you got to speak up. I got bad
       hearing.

       JONES: I’m telling you all.

At that point, the questioning proceeded as it had for hours,
and in short order Jones admitted to driving the car during the
                   JONES V. HARRINGTON                       29

shooting. He professed innocence, however, insisting that a
stranger had jumped into his car, ordered him to drive to the
scene of the shooting, and then jumped out of the car, firing
a gun at the victims. A few days later, police interviewed
Jones again, and he again insisted on this latest version of his
story.

                               B

     Jones was prosecuted largely on the strength of his
incriminating statements and was found guilty by a jury of
first degree murder, two counts of attempted murder, and
other lesser crimes. Jones was sentenced to 75 years to life.

    Jones appealed to the California Court of Appeal, arguing,
among other things, that his incriminating statements should
not have been introduced at trial, because they were obtained
in violation of his Fifth Amendment right to silence. The
California Court of Appeal disagreed, concluding that Jones’s
statement that he did not “want to talk no more” was
ambiguous in context and it thus did not require police to end
his interrogation. Jones filed a petition for review
challenging this conclusion with the California Supreme
Court, which the court denied without comment.

    Jones then filed a federal habeas petition under 28 U.S.C.
§ 2254, which was denied by the district court. Jones timely
appealed.

                               II

    Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), we may grant relief only if the California
30                    JONES V. HARRINGTON

Court of Appeal’s1 rejection of Jones’s right-to-silence claim
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or “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). Time and again,
the Supreme Court has reminded federal courts—and ours in
particular—that this standard is “difficult to meet” and
“highly deferential,” which “demands that state-court
decisions be given the benefit of the doubt.” Pinholster,
563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86,
102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam)).

    A decision is “contrary to” clearly established law where
the state court “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases” or where it “confronts
a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at
a result different from” the Court. Mitchell v. Esparza,
540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)). A state court
unreasonably applies clearly established federal law only if
its determination “was so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103. “[A]n unreasonable application of


  1
   Because the California Supreme Court summarily denied review, we
look through that denial to the reasoning given by the California Court of
Appeal when it denied Jones’s claim. See Cannedy v. Adams, 706 F.3d
1148, 1158 (9th Cir. 2013), amended on denial of reh’g, 733 F.3d 794 (9th
Cir. 2013).
                   JONES V. HARRINGTON                      31

federal law is different from an incorrect application of
federal law.” Id. at 101 (quoting Williams, 529 U.S. at 410).
“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s
decision.” Id. (internal quotation marks omitted).

    A state-court decision “will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.” Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003) (emphasis added).
“While not impossible to meet, that is a daunting
standard—one that will be satisfied in relatively few cases,
especially because we must be particularly deferential to our
state-court colleagues.” Hernandez v. Holland, 750 F.3d 843,
857 (9th Cir. 2014) (internal quotation marks omitted). Thus,
a “state-court factual determination is not unreasonable
merely because the federal habeas court would have reached
a different conclusion in the first instance.” Wood v. Allen,
558 U.S. 290, 301 (2010).

                              III

    All parties agree on the foundational principle underlying
this case: a suspect who seeks to invoke his Fifth Amendment
right to silence must do so unambiguously. See Thompkins,
560 U.S. at 381–82. Once he does, the suspect’s right to cut
off questioning must be “scrupulously honored,” Michigan v.
Mosley, 423 U.S. 96, 103–04 (1975) (internal quotation
marks omitted), and the “interrogation must cease,” Miranda
v. Arizona, 384 U.S. 436, 473–74 (1966). But interrogating
officers have no duty to heed a request that—either on its face
or in context—is “ambiguous or equivocal.” Thompkins,
560 U.S. at 381–82.
32                 JONES V. HARRINGTON

     The California Court of Appeal correctly acknowledged
this rule, and determined that, in context, Jones did not
unambiguously invoke his right to silence. The court
explained that immediately after Jones said he did not “want
to talk no more,” he continued, “You don’t want to hear what
I’m telling you.” The court opined that, “in context,
considering his willingness to talk with the detectives before
and after that point in the interview,” Jones was not
“unambiguously invoking his right to remain silent,” but
instead was “expressing frustration with the detectives’
refusal to believe him.”

    There is little doubt that this factual conclusion—that, in
the full context of Jones’s interrogation, any invocation of his
right to silence was ambiguous—is reasonable on the record
before us. When strung together, Jones’s statements quite
reasonably read as the state court portrayed them: not as a
request for silence but as an expression of frustration by a
person who wished the police would believe his story. In the
pivotal exchange, Jones’s thoughts appear scattered and he
seems upset, cutting off Detective Jolivette mid-sentence.
Further, neither before nor after this exchange did Jones even
obliquely mention a desire for silence. Indeed, for all but one
isolated statement, Jones seemed perfectly willing to engage
the detectives. In context, it is not unreasonable to interpret
that singular, stand-out statement as something other than a
clear invocation of the right to remain silent. Under AEDPA,
that factual conclusion therefore must stand, unless it was
based on an unreasonable misapprehension of clearly
established law. See Wood, 558 U.S. at 301–04; Miller-El,
537 U.S. at 340.

    The majority does not seriously contest this conclusion,
but instead asserts that clearly established law prohibited the
                   JONES V. HARRINGTON                      33

state court from considering this full factual context when
evaluating the clarity of Jones’s statement. Specifically, the
majority holds that the state court could not find Jones’s
statement ambiguous based on anything Jones said after the
precise moment he uttered, “I don’t want to talk no more,
man.” See Maj. Op. at 4–5, 13–14. But the majority has
failed to identify any case—alone or in combination with
other cases—that clearly establishes anything of the sort.

                              A

    The majority’s assertion that ambiguity can never be
provided by words a suspect says after he supposedly invokes
his right to silence stems, at bottom, from a single Supreme
Court case: Smith v. Illinois, 469 U.S. 91 (1984) (per curiam).
But the Court’s opinion in Smith has no bearing on the case
before us and, in any event, does not stand for the remarkable
proposition the majority attributes to it.

                              1

    First, and most simply, at the time the state court issued
its decision, Smith—a case examining the right to
counsel—could not provide clearly established law for
Jones’s right-to-silence claim. In Miranda v. Arizona, the
Supreme Court held that, during an interrogation, police must
inform a suspect of both rights—his right to remain silent and
his right to have an attorney present—and that they must
cease all questioning upon the suspect’s invocation of either
right. 384 U.S. at 471–74. But, until last December, we had
refused to treat cases defining the standards for invoking one
right (e.g., the right to counsel) as clearly established law
governing the standards for invoking the other right (e.g., the
right to silence). See Garcia v. Long, 808 F.3d 771, 777 n.1
34                 JONES V. HARRINGTON

(9th Cir. 2015); Anderson v. Terhune, 516 F.3d 781, 787 n.3
(9th Cir. 2008) (en banc); see also Bui v. DiPaolo, 170 F.3d
232, 239 (1st Cir. 1999) (right-to-counsel precedent did not
“authoritatively answer” question in a right-to-silence case,
even though the Supreme Court “likely would” apply the
same standard to both rights (internal quotation marks
omitted)).

    We recently changed our interpretation only because of
intervening Supreme Court precedent. In 2010, the Supreme
Court considered whether past decisions that required an
invocation of the right to counsel to be unambiguous applied
equally to a suspect who sought to invoke his right to silence.
In Berghuis v. Thompkins, the Court held that the same
standards indeed do apply, explaining that it saw “no
principled reason to adopt different standards for determining
when” either right had been invoked. 560 U.S. at 381.
Accordingly, we recently held that, after Thompkins, right-to-
counsel precedent now may indeed provide clearly
established law in right-to-silence cases—despite our past
practice to the contrary. Garcia, 808 F.3d at 777 n.1.

    But, critically, this development in the law occurred after
both the California Court of Appeal and the California
Supreme Court issued their decisions on Jones’s claim (in
2008). Under AEDPA, we may grant relief only if the state
court’s decision is irreconcilable with the law as clearly
established by the Supreme Court at the time the state court
acted. Greene v. Fisher, 132 S. Ct. 38, 44–45 (2011);
Pinholster, 563 U.S. at 182. Before Thompkins, it was
anything but clear that right-to-counsel cases governed right-
to-silence claims. That very question was at the heart of the
Supreme Court’s grant of certiorari in Thompkins. See
Thompkins, 560 U.S. at 381. Even if one agrees with the
                   JONES V. HARRINGTON                      35

Court’s affirmative answer to that question, the point is that
the answer had never been given until Thompkins. See id.;
see also Anderson, 516 F.3d at 799 (Tallman, J., dissenting)
(“The United States Supreme Court has never declared its
right to counsel principles applicable to invoking the right to
silence, and under AEDPA that precedent was not ‘clearly
established’ when the California Court of Appeal rendered its
decision.”). Acting before Thompkins, the state court cannot
possibly have failed reasonably to apply Smith’s right-to-
counsel holding to Jones’s right-to-silence claim. Indeed,
before Thompkins, not even our court would have evaluated
Jones’s claim under Smith. See Garcia, 808 F.3d at 777 n.1.
Accordingly, any supposed error related to Smith cannot be
a basis for upsetting the decision of the California Court of
Appeal.

                              2

    Second, even if Smith did govern Jones’s right-to-silence
claim, that case does not remotely stand for the sweeping
propositions the majority attributes to it. Jones’s case is
nothing at all like Smith, and the state court’s refusal to
extend Smith to Jones’s situation is patently reasonable. In
short, even on its merits, Smith provides no basis on which to
grant relief in this case.

                              a

    In Smith, at the outset of police questioning, the suspect
(Smith) stated that an unidentified woman told him to get an
attorney. 469 U.S. at 92. Shortly thereafter, when asked
whether he understood his right to have an attorney present,
Smith responded, “Uh, yeah. I’d like to do that.” Id. at 93.
Rather than stop so that Smith could contact an attorney, the
36                 JONES V. HARRINGTON

officers continued to read his rights, and “then pressed him
again to answer their questions.” Id. After a somewhat
confused back-and-forth about his right to an attorney, Smith
ultimately agreed to speak without a lawyer present. Id. On
review before the Supreme Court, Smith argued that all
questioning should have ceased the moment he requested an
attorney the first time. The State countered that it was
unclear to the officers whether Smith actually wanted an
attorney given that he agreed to proceed without one after
further questioning.

    The Supreme Court rejected the State’s argument, and
explained that once an unambiguous request for counsel has
been made, “an accused’s postrequest responses to further
interrogation may not be used to cast retrospective doubt on
the clarity of the initial request itself.” Id. at 100 (emphasis
omitted). This rule was needed to prevent officers from
“badgering or overreaching” to “wear down the accused and
persuade him to incriminate himself not withstanding his
earlier request for counsel’s assistance.” Id. at 98 (internal
quotation marks and alterations omitted). But questioning
need not end where the accused’s request “may be
characterized as ambiguous or equivocal as a result of events
preceding the request or of nuances inherent in the request
itself.” Id. at 99–100.

    The rule of Smith is thus: once a suspect clearly invokes
his right to counsel, officers may not continue to question him
and use his answers to those questions to cast retrospective
doubt on the clarity of his initial invocation. That is,
ambiguity cannot be retroactively manufactured through the
suspect’s “postrequest responses to further interrogation.”
Id. at 100 (emphasis added).             But Jones’s critical
statement—the utterance that the state court reasonably
                   JONES V. HARRINGTON                      37

determined cast doubt on what Jones meant by “I don’t want
to talk no more”—was not a response to further
interrogation. Despite the majority’s many assertions to the
contrary, Maj. Op. at 4, 15, 21–23, the police did not ask
Jones a single question between his two statements. They did
not continue “interrogating” him at all. Indeed, Detective
Jolivette did not even get out a complete sentence—it is
anyone’s guess what that sentence was going to be—before
Jones cut him off to say, “You don’t want to hear what I’m
telling you.” Jolivette’s next comment was just to ask Jones
to speak louder because he was having trouble hearing him.
Jones then said, “I’m telling you all.” Only then—at which
point an officer quite reasonably may have been confused as
to whether Jones was seeking to remain silent—did
questioning continue. Jones never again hinted at a desire for
silence.

    This is nothing at all like the situation in Smith, where
officers spoke to and questioned the suspect at length after he
requested an attorney. In Smith, the State contended that the
suspect’s earlier request was unclear based only on his
“responses to continued police questioning.” 469 U.S. at 97
(emphasis added). By contrast, the officers here asked Jones
nothing, they did not continue interrogating him, and they
certainly did not manufacture ambiguity by badgering Jones
or wearing him down. See id. at 98. Instead, Jones’s
statement was ambiguous immediately, as confirmed by
comments he made directly afterward. While those
comments came later in time (barely), they were not the
product of any “further interrogation” whatsoever. This
situation is patently—and certainly reasonably—
distinguishable from that in Smith.
38                  JONES V. HARRINGTON

    If the limitations of Smith were not already obvious on the
face of the Court’s analysis, the Court took additional care to
emphasize that its “decision [was] a narrow one.” Id. at 99.
That narrow decision did “not decide the circumstances in
which an accused’s request for counsel may be characterized
as ambiguous or equivocal as a result of events preceding the
request or of nuances inherent in the request itself.” Id. at
99–100. And Smith certainly does not preclude the California
courts from determining that Jones’s situation presents just
such a circumstance where the suspect’s “request itself” was
ambiguous. Even if on de novo review the majority would
reach a different result, the majority’s preferred interpretation
is certainly not “beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.

                               b

    The majority holds to the contrary only by misattributing
to Smith a sweeping rule that case in no way embraced. The
majority suggests that Smith’s prohibition against creating
ambiguity on the basis of “postrequest responses to further
interrogation” actually means that the police must disregard
anything the suspect happens to say at a moment in time after
he has arguably invoked his right to silence. See Maj. Op. at
4–5, 13–14. That is, even though context may render an
otherwise apparently clear statement ambiguous, the majority
concludes that such context can never be supplied by
something the suspect says after his supposed request for
silence.

    The majority’s reading not only stretches Smith to its
breaking point, but it creates a rule that defies the basic logic
of human interaction and which would have sweeping
consequences for police officers. Consider, for example, a
                    JONES V. HARRINGTON                       39

situation in which there is no interruption by a police officer
at all. Suppose that during an interrogation a suspect said,
“Man, I don’t even want to talk about this anymore.” Then,
after an uninterrupted pause, he continued, “This is so
frustrating. I’m answering all your questions, but you won’t
believe what I’m saying.” Must an officer plug his ears and
ignore the latter two sentences, merely because they came
after the first sentence? Of course not. Smith does not
compel such a result, and anyone who has ever held a
conversation would naturally reject it. Indeed, albeit in an
unpublished disposition, another panel of our court recently
held that Smith allows officers to take into account the totality
of just such a sequence. In United States v. Winsor, a suspect
stated, “I think I’d like an attorney,” which after a “couple
moments of silence,” he followed with, “Shouldn’t I have an
attorney here?” 549 F. App’x 630, 633 (9th Cir. 2013)
(mem.) (internal quotation marks omitted). Our court held
that the suspect’s two sentences—which the police did not
attempt to “engineer”—should be read together as a single
statement that, as a whole, was not an unambiguous request
for counsel. Id. Precedential or not, that decision certainly
reflects a reasonable interpretation of Smith, which, again, is
the low bar the State must clear.

    And if Smith would allow an officer to consider two
separate but uninterrupted sentences together as a single
statement, we are left with a simple question: does Smith
mandate a different result merely because an officer manages
to eke out half a thought between the suspect’s two
sentences? As explained above, plainly not. Smith spoke of
“responses to further interrogation” and was concerned with
ambiguity manufactured through repeated questioning and
badgering. It says nothing for where, as here, an officer
40                  JONES V. HARRINGTON

merely says something—but does not interrogate, question,
or badger—before the suspect continues talking.

     The majority complains that such an interpretation of
Smith somehow obscures the “bright-line” prohibition against
continuing to interrogate a suspect after he has clearly
invoked his right to silence. See Maj. Op. at 19 n.2. The
majority claims that this interpretation would “create a gray
area about how much [continued] interrogation is
interrogation enough,” and would allow officers to continue
asking a suspect “some threshold number of questions.” Id.
Not so. I must emphasize once again: the police asked no
questions between Jones’s critical statements. The only
“threshold number of questions” needed to distinguish this
case from Smith is the simplest threshold of all: zero. If Jones
had been forced to respond to even a single question—that is,
if the police had continued to interrogate him at all—perhaps
that would raise more difficult considerations regarding the
precise limits of the rule set in Smith. Fortunately, in this
case we need to recognize only that what Smith prohibits is
“continued police questioning,” 469 U.S. at 97, and “further
interrogation,” id. at 100—neither of which happened here.

    At best, the majority’s expansive rule represents an
extension of Smith to a situation not contemplated by the
Court in that case. Regardless how much the majority might
prefer such an extension, that is not cause for relief under
AEDPA. See White v. Woodall, 134 S. Ct. 1697, 1706 (2014)
(“[I]f a habeas court must extend a rationale before it can
apply to the facts at hand, then by definition the rationale was
not clearly established at the time of the state-court decision.”
(internal quotation marks omitted)). Fundamentally, the
question before us is not whether the majority’s expansive
reading of Smith is correct or incorrect; the only question we
                       JONES V. HARRINGTON                              41

may consider is whether the state court could reasonably
interpret Smith more narrowly so as to distinguish it from the
situation before us. Quite obviously it could.2

                                    B

    Despite superficial attempts to do so, the majority cites no
case that bridges the analytical gaps left unfilled by Smith.

    The majority asserts that Miranda v. Arizona itself clearly
established that the police could not take into account
anything Jones uttered after he said that he did not “want to
talk no more.” See Maj. Op. at 4, 14–15. Cherry-picking
quotations from Miranda, the majority argues that because
Jones indicated “in any manner” that he wished for silence,
the police were required to stop speaking to him. See Maj.
Op. at 14–15, 23 (quoting Miranda, 384 U.S. at 473–74).


 2
   Further, given the limitations of the record before us, I fail to see how
we could possibly conclude that it is unreasonable to characterize Jones’s
comments as one continuous statement. We do not have the benefit of an
audio recording, and thus we are left to guess just how rapid the exchange
between Jones and Jolivette was. As the author of today’s opinion
suggested at oral argument, one quite reasonable interpretation of our
limited record is that Jones and Jolivette spoke so quickly that they were
“stepping on each other’s lines.” That is, perhaps the exchange was so
rapid that Jones’s two statements came out “as almost one sentence that
has a little interruption in there.”

     Of course, the transcript could be read in a way to make this a more
difficult case for the government—for example if we infer a dramatic
pause between when Jones and Jolivette spoke. But, once again, under
AEDPA we are not asked to determine what the best reading of the record
is (and certainly not what reading is most favorable to Jones). We are
tasked only with determining whether the state court’s view of the
exchange was reasonable. It was.
42                     JONES V. HARRINGTON

But, despite the majority’s selective quotations, it is
decidedly not the law that police must cease speaking—or
even questioning—once a suspect indicates that he wishes for
silence “in any manner.” Rather, the manner in which the
suspect requests silence must be unambiguous; an
“ambiguous or equivocal” request will not do. Thompkins,
560 U.S. at 381–82. Thus, at least as subsequently clarified
by the Supreme Court, Miranda would better be described to
hold that questioning must stop whenever a suspect requests
silence “in any [unambiguous] manner.” Despite its best
efforts not to,3 the majority concedes as much. See Maj. Op.



  3
    The majority at times seems to suggest that our analysis should ignore
the Supreme Court’s holding in Thompkins that a suspect’s request for
silence must be unambiguous. See Maj. Op. at 20–21, 21–22 n.3. The
majority argues that, if AEDPA prevents Jones from basing his claim on
anything the Court wrote in Thompkins, see supra Part III.A.1, then the
government must likewise ignore any aspect of Thompkins that confirms
the correctness of the state court’s decision. See Maj. Op. at 21–22 n.3.
But we have every reason to treat the parties differently in this respect,
and the majority’s argument to the contrary would turn AEDPA on its
head.

     AEDPA prohibits us from granting relief unless the state court
unreasonably applied federal law as clearly established at the time the
state court acted. See Greene, 132 S. Ct. at 44–45. Thus, Jones cannot
receive relief based on anything in Thompkins, because Thompkins came
after the state court’s decision in this case. See supra Part III.A.1. The
government, on the other hand, is asked only to show that the state court’s
decision was reasonable. To do that, the government has no need to rely
on Thompkins at all. Before Thompkins, we had held that it was at least
reasonable for a court to conclude that a request for silence must be
unambiguous, even if the Supreme Court had not clearly established as
much. See DeWeaver v. Runnels, 556 F.3d 995, 1001–02 (9th Cir. 2009).
Thus, in many ways, Thompkins is beside the point for the government in
this case.
                       JONES V. HARRINGTON                              43

at 19 n.2 (“[Miranda and Smith] stand for the simple
proposition that officers must stop questioning a suspect once
he unambiguously invokes his right to silence . . . .”
(emphasis added)). But that simply returns us to the same
question we started with: what does it mean for a statement
to be unambiguous, and what sort of factual context may an
officer consider when interpreting the clarity of a statement?
On these questions, Miranda provides no guidance at all.

    Completely beside the point, the majority makes much of
the Supreme Court’s commands in Miranda and in Michigan
v. Mosley that a valid request for silence must be


     But, even if reference to Thompkins is not necessary to conclude that
the state court’s decision was reasonable, we may of course cite
Thompkins to underscore that conclusion. It would be the very antithesis
of deference for us to ignore the fact that state court’s conclusion about
ambiguity was later held by the Supreme Court to be correct. Given the
standard of review erected by AEDPA, there is no contradiction in
allowing the government to rely on a case even when Jones may not. Cf.
Lockhart v. Fretwell, 506 U.S. 364, 372–73 (1993) (state may take benefit
of new rules on collateral review even though petitioner may not).

     Finally, I must observe that the majority and I have referenced
Thompkins for two very different reasons. I cite Thompkins merely to
confirm that the state court was right to conclude that Jones’s request for
silence needed to be unambiguous. The majority, however, seeks to use
Thompkins to sustain its otherwise unsupportable assertion that the state
court was compelled to follow all of the Supreme Court’s prior cases
discussing ambiguity in the right-to-counsel context. See Maj. Op. at
21–22 n.3. Again, before Thompkins, the Supreme Court had never held
that right-to-silence invocations are governed by the same standards as
right-to-counsel invocations. Even if the state court determined that both
invocations need to be “unambiguous,” it was by no means compelled also
to conclude that the standards governing ambiguity must be the same in
both contexts. As the majority itself points out, Maj. Op. at 16–17, there
could reasonably be different standards that govern each right (even if that
argument is now foreclosed by Thompkins).
44                    JONES V. HARRINGTON

“scrupulously honored.” See Maj. Op. at 15, 23. It is true
that Miranda and Mosley state unequivocally that police
questioning must cease once the right to silence is invoked.
But that command simply instructs officers how to behave
once the right to silence has been unambiguously invoked.
This case is about whether the right was ever unambiguously
invoked, or more accurately, whether the state court
reasonably determined that any invocation was ambiguous in
context. Neither Miranda nor Mosley speak to that question.4

     Finally, the majority reverts to what is becoming an old
habit of our court: citing federal circuit court cases to help
bolster an attempt to extend Supreme Court precedent under
federal habeas review. See Maj. Op. at 15, 20, 22–23, 25
(citing Garcia, 808 F.3d at 771; Anderson, 516 F.3d at 781;
United States v. Lafferty, 503 F.3d 293 (3d Cir. 2007)). This
we plainly cannot do. See Glebe v. Frost, 135 S. Ct. 429, 431
(2014) (per curiam); Lopez v. Smith, 135 S. Ct. 1, 4 (2014)
(per curiam); Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51
(2013) (per curiam). And even more, just like the majority’s
chosen Supreme Court cases, none of the Court of Appeals
cases cited by the majority actually holds that a court can
never infer ambiguity on the basis of statements made after a




  4
    In the same vein, the majority discusses standards for evaluating a
claim of waiver after the right to counsel has been invoked, as developed
by the Supreme Court in cases such as Edwards v. Arizona, 451 U.S. 477
(1981). See Maj. Op. at 16–17. Again, the case before us is strictly about
whether Jones ever invoked his right to silence unambiguously; it has
nothing to do with how we determine waiver after such an invocation has
occurred.
                      JONES V. HARRINGTON                             45

supposedly clear request for silence.5 Even if these cases
were relevant under AEDPA review, they would not get the
majority to its preferred destination.

    In sum, the majority’s rejection of the factual context
provided by Jones’s complete statements stems from an
overly broad reading of Smith that is unsupported by
reference to Miranda, Mosley, or any other case cited in the
majority’s opinion. Under AEDPA, the State court cannot be
faulted for failing to anticipate the majority’s de novo
extension of the law.

                                   IV

    In this case, the California Court of Appeal: (1) identified
the correct legal rule applicable to Jones’s right-to-silence
claim, (2) reasonably interpreted the facts underlying Jones’s
claim, and (3) reasonably applied that legal rule to those facts
in rejecting the claim. The majority does not identify a single
case—let alone a relevant Supreme Court case—that holds
to the contrary or that even contemplates the situation in
which Jones’s claim arose. Instead, the majority essentially
concludes that Supreme Court precedent ought to extend
farther than it currently does, and—as has unfortunately


 5
   Of the Court of Appeals cases, the majority relies most heavily on our
en banc decision in Anderson v. Terhune, a case inapposite on its facts.
There, officers ignored a suspect’s “clear and repeated invocations of his
right to remain silent” by feigning not to understand what he meant. See
516 F.3d at 785–86. Under AEDPA, we held that Miranda does not allow
officers to “manufacture[] [ambiguity] by straining to raise a question
regarding the intended scope of a facially unambiguous invocation of the
right to silence.” Id. at 787. This case says nothing for how a court must
interpret a one-time statement rendered ambiguous nearly immediately
afterward—and before police officers can even complete another sentence.
46                JONES V. HARRINGTON

become routine for our court—chastises the state court for
failing to predict and to adhere to the majority’s preferred
view of the law.

   Because AEDPA prohibits federal courts from doing
exactly that, I respectfully dissent.
