                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 02 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JADE E. ANDERSON,                                No. 13-16897

              Petitioner - Appellant,            D.C. No. 3:10-cv-00155-SI

  v.
                                                 MEMORANDUM*
TINA HORNBECK,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                    Argued and Submitted November 19, 2014
                            San Francisco, California

Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.

       Jade Anderson took a wallet and cell phone from a man her companion had

choked into unconsciousness and – unbeknownst to her – fatally injured. Towards

the end of a twelve-hour interrogation, she admitted that she took the items while



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
the victim was still alive. On this basis, she was convicted of felony murder and

sentenced to twenty-five years to life in prison. Without her own inculpatory

statements, the evidence would not even have supported a charge of robbery, but

only one of theft. In her habeas petition, Anderson argues that her inculpatory

statements should have been suppressed at trial because they were made after the

interrogating officers disregarded her invocation of the right to counsel.

       This case turns on the facts, so they are recounted briefly. After some hours

of questioning, the officers put Anderson under arrest and handcuffed her. Without

informing her of her rights, the officers then left the room, to search her purse

before she was escorted to the restroom. They conducted this search at a table a

short distance from the door to the interrogation room, which they left partially

ajar. The officers spoke to each other, and, in response to Anderson’s request for a

tampon from her purse, they conversed back and forth with her. During this period,

Anderson stated, “I need a lawyer.” The California Court of Appeal alternately

characterized this statement as made in an “even voice” and “simply mus[ing].”

There was no response from the officers, who later testified that they did not hear

her. Where exactly the officers were standing when Anderson made her statement

is not entirely clear.




                                          2
      Another officer, of whose presence Anderson was unaware, was sitting in an

adjacent area, recording the interrogation. He heard Anderson say, “I need a

lawyer,” and he promptly related this statement to one of the interrogating officers,

Clark, who had no response. It was only after subsequent questioning that

Anderson stated that the victim was alive when she took his possessions.

      Additionally,1 the next day, Anderson was again interrogated by a team that

included Officer Clark. She again said, “I need a lawyer,” this time directly to

Clark, who said, “You’re going to get a lawyer, Jade. That’s going to be appointed

for you. That’s not an issue.” Clark did not, however, stop questioning her; later,

he testified that this invocation “went in one ear and out the other.” (Statements

made after this second invocation were suppressed at trial.)

      The record leaves us with the distinct impression that the officers failed to

“scrupulously honor[]” Anderson’s right to legal representation during her




      1
        Anderson also argues that she invoked her right to silence prior to
confessing. However, this claim was not certified for appeal, and it turns primarily
on state evidence law regarding which recording or transcription to credit when a
statement is intelligible in one and not in others. Thus, we do not address it.

                                          3
interrogation, Miranda v. Arizona, 384 U.S. 436, 479 (1966), and that the

conclusions of the state court to the contrary are erroneous.2

      We are unable, however, to conclude, as required by AEDPA, that the state

court’s decision “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, 131 S. Ct. 770, 786-87 (2011).

This is for two reasons. First, the state court’s core legal conclusion – that an

invocation made in a manner unlikely to be heard by an officer is ambiguous – was

not an unreasonable application of the clear invocation rule of Davis v. United




      2
        Peripheral elements of the state court’s analysis in Anderson’s case were
indeed contrary to clearly established Supreme Court law. First, the California
Court of Appeal identified Anderson’s failure to reiterate her request for counsel as
confirmatory of “[t]he lack of conviction implicit in her manner.” Smith v. Illinois,
469 U.S. 91, 99-100 (1984), however, held that “postrequest responses to further
interrogation may not be used to cast retrospective doubt on the clarity of the initial
request itself.” Second, to the extent that the California Court of Appeal held that
an invocation must be heard firsthand by the officer to whom it is addressed, this
holding was contrary to Arizona v. Roberson, 486 U.S. 675, 687-88 (1988), which
clearly established that invocations are not officer-specific. However, these legal
conclusions were doctrinally incorrect surplusage, and not the basis on which the
state court denied Anderson relief.

                                           4
States, 512 U.S. 452, 458-59 (1994).3 Second, the state court’s core factual

determination – that Anderson’s statement was made in a manner unlikely to be

heard by an officer – was not an “unreasonable determination of the facts in light

of the evidence.” 28 U.S.C. § 2254(d)(2). The decision, although based on an

unfortunate willingness to credit the testimony of an officer who demonstrated a

cavalier attitude towards the constitutional rights of suspects, is nevertheless

entitled to deference under AEDPA.

      Hence, with considerable reluctance, we affirm the district court’s denial of

Anderson’s habeas petition.

      AFFIRMED.




      3
        We do not hold here that the Davis rule actually applies to invocations
made before Miranda warnings are given during custodial interrogation. We
merely conclude, in light of Sessoms v. Grounds, 768 F.3d 882, 887 (9th Cir. 2014)
(en banc) (assuming without deciding that Davis applies), that it was not contrary
to or an unreasonable application of clearly established law for the state court to
apply it in that context.

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