                                                                           FILED
                      UNITED STATES COURT OF APPEALS                        OCT 15 2010

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S . CO UR T OF AP PE A LS




JOSE LUIS LUNA,                                  No. 06-16823

              Petitioner - Appellant,            D.C. No. CV-02-04045-SBA
                                                 Northern District of California,
  v.                                             Oaµland

ANTHONY LAMARÏUE,
                                                 ORDER WITHDRAWING
              Respondent - Appellee.             DISPOSITION AND DENYING
                                                 REHEARING


Before: HUG, W. FLETCHER and CLIFTON, Circuit Judges.

       The Memorandum disposition filed April 28, 2008 is withdrawn and

replaced by the attached Memorandum disposition.

       With the filing of this new disposition, the panel has voted unanimously to

deny the petition for rehearing. Judge Fletcher and Clifton have voted to deny the

petition for rehearing en banc, and Judge Hug so recommends.

       The full court has been advised of the petition for rehearing en banc and no

judge of the court has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.

       The petition for rehearing and the petition for rehearing en banc, filed May

12, 2008, are DENIED.
                                                                             FILED
                             NOT FOR PUBLICATION                              OCT 15 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                             FOR THE NINTH CIRCUIT



JOSE LUIS LUNA,                                   No. 06-16823

            Petitioner - Appellant,               D.C. No. CV-02-04045-SBA

  v.
                                                  MEMORANDUM *
ANTHONY LAMARÏUE,

            Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                       Argued and Submitted October 19, 2007
                             San Francisco, California

                       Submission Withdrawn October 23, 2007
                            Resubmitted April 22, 2008


Before: HUG, W. FLETCHER, and CLIFTON, Circuit Judges.

       The issue in this case is whether all or part of a tape-recorded interrogation

was properly admitted into evidence at trial. In 2000, Jose Luis Luna was



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentenced to 170 years to life in prison based on his conviction in California state

court for several offenses committed against a minor over a period of about two

weeµs. He was convicted on sixteen counts and acquitted of the other charges. He

was given consecutive 15-years-to-life terms for each of six acts and consecutive

eight-year determinate sentences for each of ten acts. See Cal. Penal Code yy

269(a)(4)-(5), 288(b)(1). Even with the admission of the entire disputed

interrogation, the evidence against Luna was somewhat equivocal. The prosecutor

admitted to the jury, in final argument, that the detective who had conducted the

interrogation (and who had also interviewed the minor) believed that the evidence

did not warrant prosecution of Luna.

      Luna appealed, alleging Miranda and Apprendi violations. Miranda v.

Arizona, 384 U.S. 436 (1966); Apprendi v. New Jersey, 530 U.S. 466 (2000). The

California Court of Appeal modified Luna's restitution fine but otherwise affirmed

in an unpublished opinion. The California Supreme Court denied Luna's petition

for review. Luna filed a federal habeas petition in 2002. The district court denied

the petition in 2006. We review that decision de novo. Taylor v. Maddox, 366

F.3d 992, 997 (9th Cir. 2004).

      Luna contends that the trial court should have excluded all of the statements

he made during the interrogation. We disagree. Applying the 'highly deferential'


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review required under the Antiterrorism and Effective Death Penalty Act, 28

U.S.C. y 2254(d) ('AEDPA'), we cannot conclude that the California Court of

Appeal unreasonably applied Miranda and its progeny in holding that Luna failed

to unambiguously invoµe his right to counsel during the early parts of his

interrogation. See Davis v. United States, 512 U.S. 452, 459 (1994); Clarµ v.

Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). We conclude, however, that in a

later part of the interrogation Luna did adequately invoµe his right to counsel.

      Respondent argues that Luna did not exhaust his federal claims that are

based on his requests for counsel during later parts of the interrogation. We agree

with the district court that Luna successfully exhausted these claims. In the state

proceedings, it was clear that Luna was asserting that his Miranda rights had been

violated. Cf. Anderson v. Harless, 459 U.S. 4, 6-7 (1982) (holding claim

unexhausted when federal constitutional basis of claim was unclear). Luna's state

court brief referred to more than one point during the interrogation at which

questioning should have ceased. The brief also included the rule from Miranda

that invocations can come at any time during an interrogation. The state court thus

had 'a fair opportunity to act on' all of Luna's Miranda right to counsel claims.

O'Sullivan v. Boercµel, 526 U.S. 838, 844 (1999); see also Arnold v. Runnels, 421




                                          3
F.3d 859, 864-65 (9th Cir. 2005) (applying Miranda on AEDPA habeas review to

statements ignored by state court).

       Because the state court did not address Luna's claims that he adequately

asserted his right to counsel later in his interrogation, we review those claims de

novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (examining prejudice

aspect of ineffective assistance of counsel claim de novo because state court only

considered adequacy of representation); Lewis v. Mayle, 391 F.3d 989, 996 (9th

Cir. 2004) (reviewing de novo the waiver aspect of Sixth Amendment claim where

state court reached only conflict-of-interest aspect).

       Luna made repeated references to a lawyer during his interrogation. The

two references addressed by the Court of Appeal were the following. Almost

immediately after the Miranda warning was read to him, Luna said 'I should

probably get a lawyer, I guess.' Several minutes later, Luna said, 'Ya, we can talµ.

It looµs liµe I got nothin' else to do. In other words, I'll just wait 'til I get booµed

and wait 'til I'm charged or whatever, you µnow whatever or get a lawyer.'

       Luna made two later references to a lawyer, neither of which was considered

by the Court of Appeal. First, he said, 'So I don't understand if I need to get a

lawyer.' Second, he asµed the interrogating detective, 'Are you my lawyerá' She

responded that she was not his lawyer. Luna then stated, 'Well it sound [pause] . .


                                            4
. The way it's goin' it sounds liµe I need a lawyer. [pause] And I need help.'1

While the first of these two statements is ambiguous, the second is not. The

second statement contains none of the traditionally ambiguous words such as

'maybe,' 'might,' or 'I thinµ.' See Arnold, 421 F.3d at 865-66. Indeed, Luna

explicitly said 'And I need help' immediately after expressing a need for a lawyer.

The detective did not stop her interrogation but rather continued to question Luna.

      The Supreme Court has provided an objective test for invocation of the right

to counsel in Davis v. United States, 512 U.S. 452 (1994). The suspect in Davis

explicitly waived his right to counsel, both orally and in writing, before the

interrogation began. After an hour and a half, he said, 'Maybe I should talµ to a

lawyer.' The Court held that, under the circumstances, this statement was not an

unambiguous invocation of the right to counsel:

      Invocation of the Miranda right to counsel requires, at a minimum, some
      statement that can reasonably be construed to be an expression of a desire
      for the assistance of an attorney. . . . Although a suspect need not speaµ with
      the discrimination of an Oxford don, . . . he must articulate his desire to
      have counsel present sufficiently clearly that a reasonable police officer in
      the circumstances would understand the statement to be a request for an
      attorney.




      1
        The pauses indicated here are not indicated in the written transcript of the
interview, but they are apparent on the audiotape in the record.

                                           5
Id. at 459 (emphasis added). The California Court of Appeal applied Davis in its

analysis of Luna's early, unsuccessful invocations of his right to counsel. In our

analysis of his later invocations, we also apply Davis.

      We hold that in the circumstances of this interrogation, Luna's final

statement -- '[I]t sounds liµe I need a lawyer. And I need help' -- was a

sufficient invocation of his right to counsel. We have repeatedly recognized that

the circumstances in Davis included the suspect's explicit waiver of his right to

counsel at the beginning of the interrogation. See United States v. Rodriguez, 518

F.3d 1072, 1078 (9th Cir. 2008); United States v. Cheeley, 36 F.3d 1439, 1447-48

(9th Cir. 1994). The suspect in Davis explicitly waived his right to counsel and

later made a single statement that 'maybe' he should talµ to a lawyer. By contrast,

Luna never explicitly waived his right to counsel and repeatedly mentioned getting

a lawyer. In his final statement, Luna stated that 'it sounds liµe I need a lawyer,'

and stated, 'And I need help.' '[A] reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.' Davis, 512 U.S. at

459. The trial court therefore erred in admitting any statements Luna made after

this invocation. Id. at 458.

      Before maµing this final statement, and thereby adequately invoµing his

right to counsel, Luna had confessed to one of the instances of lewd conduct for


                                          6
which he was convicted. The admission of his confession was proper with respect

to that conduct, and his conviction for that conduct must stand. However, Luna's

incriminating statements regarding all of the other conduct for which he was

convicted came after he properly invoµed his right to counsel. It is clear from the

record that admission of his confession was not harmless error as to these

convictions. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). We therefore

affirm the district court as to Luna's conviction for one count of a lewd act on a

minor, for which he was sentenced to eight years in prison. However, we reverse

the district court as to Luna's conviction on the remaining counts. Our decision

obviates Luna's Apprendi challenge.

      AFFIRMED in part and REVERSED in part. REMANDED to the district

court for further proceedings in accordance with this disposition. Petitioner

Appellant awarded costs on appeal.




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