                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 14 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVEN RAY PERRIDON,                             No. 09-16940

              Petitioner - Appellant,            D.C. No. 2:00-cv-01123-LKK-
                                                 JFM
  v.

ERNIE ROE, Warden; ATTORNEY                      MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                       Argued and Submitted October 4, 2010
                             San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Steven Ray Perridon (“petitioner”), a California state prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his jury

conviction for nine robberies (Cal. Penal Code § 211) and one attempted robbery



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(Cal. Penal Code §§ 211, 664). We have jurisdiction under 28 U.S.C. § 2253.

Because the petition was filed after April 24, 1996, we review it under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, we

may only grant the petition if the state court decision “was contrary to, or involved

an unreasonable application of,” clearly established Supreme Court law or “was

based on an unreasonable determination of the facts in light of the evidence.” 28

U.S.C. § 2254(d); Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009). We affirm.

      The California Court of Appeal’s decision that petitioner’s Fifth Amendment

rights were not violated was not contrary to or an unreasonable application of

clearly established Supreme Court law. Police officers must cease questioning a

suspect who has clearly articulated that he wants an attorney present during the

custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). To

invoke the right to counsel, a suspect must clearly and unambiguously request

counsel, which means that 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.” Davis v. United States,

512 U.S. 452, 459 (1994). “[I]f a suspect makes a reference to an attorney that is

ambiguous or equivocal in that a reasonable officer in light of the circumstances




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would have understood only that the suspect might be invoking the right to

counsel,” cessation of questioning is not required. Id.

      The California Court of Appeal’s decision that petitioner did not clearly and

unequivocally invoke his right to counsel was not contrary to clearly established

Supreme Court law. Petitioner’s statement that he would not answer questions

without an attorney was ambiguous under the circumstances. When detectives

initially contacted petitioner, he voluntarily agreed to answer questions at the

police station. Upon arriving at the station, petitioner twice requested a cigarette,

explaining that he would be more relaxed and cooperative if he could smoke. It

was only after the detective declined and explained that they were in a non-

smoking facility that petitioner mentioned a cigarette and an attorney. See Smith v.

Illinois, 469 U.S. 97, 99, 100 (1984) (indicating that circumstances leading up to

the request may render a request ambiguous). As petitioner’s statement was

ambiguous, the detective could ask him to clarify his demand. See Davis, 512 U.S.

at 459; Anderson v. Terhune, 516 F.3d 781, 789 (9th Cir. 2008). When he did,

petitioner stated, “help me out, I’ll help you out. It’s as simple as that man. . . Give

me a cigarette man, that’s all I’m asking.” After the detective assured him that he

could smoke following the interview, petitioner waived his Miranda rights and

answered the detective’s questions, indicating that his true aim was to secure a


                                           3
cigarette in exchange for speaking. Thus, it was not unreasonable for the

California Court of Appeal to conclude that because petitioner did not

unequivocally invoke his right to counsel, the police were not required to end

questioning.

      The court declines to address petitioner’s uncertified issue on appeal, as

there is no “substantial showing of the denial of a constitutional right.” See 28

U.S.C. 2253(c)(2); Mendez v. Knowles, 556 F.3d 757, 770 (9 th Cir. 2009).

      AFFIRMED.




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