                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JEROME ALVIN ANDERSON,                            No. 04-17237
             Petitioner-Appellant,                   D.C. No.
               v.                                CV-00-002494-
C.A. TERHUNE, Warden,                                  WBS
            Respondent-Appellee.
                                                   OPINION

         Appeal from the United States District Court
            for the Eastern District of California
          William B. Shubb, Chief Judge, Presiding

                 Submitted December 5, 2005*
                   San Francisco, California

                     Filed November 8, 2006

    Before: Alex Kozinski and M. Margaret McKeown,
  Circuit Judges, and Michael R. Hogan,** District Judge.

                    Opinion by Judge Hogan;
                   Dissent by Judge McKeown




   *This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
   **The Honorable Michael R. Hogan, United States District Judge for
the District of Oregon, sitting by designation.

                                18387
18390               ANDERSON v. TERHUNE


                         COUNSEL

Charles M. Bonneau, Sacramento, California, for the
petitioner-appellant.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief
Assistant Attorney General; Mary Jo Graves, Senior Assistant
Attorney General; Stephen G. Herndon, Supervising Deputy
Attorney General; Brian R. Means, Supervising Deputy Attor-
ney General; Craig S. Meyers, Deputy Attorney General; Sac-
ramento, California, for the respondent-appellee.


                         OPINION

HOGAN, District Judge:

   Petitioner, Jerome Alvin Anderson, appeals the district
court’s order denying his petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Anderson challenges his con-
viction of special circumstance murder on the grounds that (1)
                     ANDERSON v. TERHUNE                  18391
he was denied his constitutional right to remain silent; and (2)
he was denied due process by the introduction of his involun-
tary confession into evidence, and by the exclusion of evi-
dence of coercion in the interrogation process.

                             Facts

  Anderson and the victim, Robert Clark, were friends. On
the morning of July 9, 1997, a mutual acquaintance, Patricia
Kuykendall, discovered that her car had been stolen. Ander-
son visited Kuykendall’s apartment that day and informed
Kuykendall that Clark had a habit of borrowing cars, duplicat-
ing keys and stealing them later.

   Anderson left to bring Clark back to Kuykendall’s apart-
ment. Kuykendall and petitioner confronted Clark about the
car. Clark denied involvement in the theft. As Kuykendall cal-
led the police, Clark left. About ten minutes later, Anderson
and Kuykendall’s roommate, Abe Santos, followed after
Clark.

   At about 12:30 or 1:00 p.m. on that afternoon, an employee
at Carl’s Jr. waited on three people in a white Ford Mustang
at the drive-through window. The employee identified Ander-
son as the driver. At about 1:05 p.m. witnesses noticed a
white Mustang with black trim and tinted windows on East
Stillwater Road. One witness specifically saw Anderson
standing behind the car and two other men standing by the
car.

   Clark’s body was discovered by the side of East Stillwater
Road at about 2:30 p.m. He had been shot in the head four
times. A methamphetamine pipe lay next to him, and a ciga-
rette lighter was in his hand. Two pieces of hamburger and a
fresh cigarette butt were also near the body, as well as spent
.22 shell casings. Kuykendall’s key was discovered in Clark’s
pocket.
18392                ANDERSON v. TERHUNE
   A search of defendant’s car, a white Ford Mustang with
black trim and tinted windows, revealed that the tire tracks
found near the body were similar to the tire tracks it made.
The search also revealed two live .22 rim fire casings under
the seats similar to the spent casings found near Clark’s body.
An analysis of the clothes Anderson wore that day revealed
that three small blood stains on his shorts were consistent with
Clark’s DNA and inconsistent with Anderson’s or Santos’
DNA.

   Authorities took defendant into custody for a parole viola-
tion on July 12, 1997, at approximately 8:00 p.m. Officers
interviewed Anderson for approximately three and a half
hours. The interrogation included the following discussion
with Detective O’Connor:

    O’Connor: You act like you’re cryin’ like a baby,
              an’ you can’t cry for someone that was
              a no good . . . an’ you killed him for a
              good reason.

    Anderson:    No, way! No, way. I — You know
                 what, I don’t even wanna talk about this
                 no more. We can talk about it later or
                 whatever. I don’t want to talk about this
                 no more. That’s wrong. that’s wrong.

    O’Connor: Right now, you show your remorse.

    Anderson:    I have nothin’ to worry about, nothin’ to
                 hide. That’s why I show no remorse.
                 Nothin’ to worry about, nothin’ to hide.
                 He was my friend, an’ there’s no way I
                 would do it. No, way I would do it.

    O’Connor: Were you high that day?

    Anderson:    No, sir. I — probably was later on. Yes.
               ANDERSON v. TERHUNE               18393
O’Connor: Did you have any dope with you that
          . . . that day?

Anderson:   No, sir.

O’Connor: No, dope at all? What do you smoke
          with?

Anderson:   I smoke with my . . . my fingers.

O’Connor: When you smoke your dope what do
          you do with that? How do you smoke
          that?

Anderson:   You smoke it with pipes and stuff like
            that.

O’Connor: Okay. What kind of pipes?

Anderson:   Lines.

O’Connor: What kind of pipes?

Anderson:   N’ah . . . I would — I —

O’Connor: Well, what kind of pipes?

Anderson:   Uh! I’m through with this. I’m through.
            I wanna be taken into custody, with my
            parole . . .

O’Connor: Well, you already are. I wanna know
          what kind of pipes you have?

Anderson:   I plead the fifth.

O’Connor: Plead the fifth. What’s that?
18394                ANDERSON v. TERHUNE
    Anderson:    No, you guys are wrong. You guys are
                 wrong. You guys have — I’ve tried to
                 tell you everything I know. As far as I
                 know, you guys are lying, uh, making
                 things up, extenuating and that’s not
                 right. It’s not right.

    O’Connor: We’re not makin’ anything up.

    Anderson:    Sir, sure you are.

    O’Connor: What are we makin’ up?

    Anderson:    You’re tellin’ me that I didn’t have
                 tears in my eyes.

    O’Connor: Yeah.

    Anderson:    You’re tellin’ me, okay, that, uh, uh,
                 Abe said I kilt him. That’s a lie.

  Officers then showed Anderson a videotaped interview in
which Abe Santos confessed to watching defendant shoot
Clark. Defendant eventually confessed.

                  Right to Remain Silent

   Anderson asserts that he was denied his constitutional right
to remain silent during this exchange. The state court con-
cluded that while the defendant articulated words that could,
in isolation, be viewed as an invocation of his right to remain
silent, given the totality of the circumstances, the defendant
did not intend to terminate the interview. The state appellate
court quoted the reasoning provided by the trial court:

    The interrogating officer did not continue or reiniti-
    ate the interview by posing the question: “plead the
    fifth. What’s that?” The questions can reasonably be
                     ANDERSON v. TERHUNE                   18395
    characterized as a request for clarification or confir-
    mation that the defendant wished to assert his right
    to remain silent, and nothing more. What followed is
    important to a determination of the question. Specifi-
    cally, the defendant launched off on a discourse and,
    ultimately engaged in a debate without making any
    reference to an invocation of the right to remain
    silent. It was the defendant, not the interrogators,
    who continued the discussion.

The appellate court further reasoned that “the interrogating
officer testified he believed that in saying, ‘I plead the fifth’
defendant was simply indicating an unwillingness to discuss
the details of his drug use, and not a desire to terminate the
interrogation.”

   [1] The state court thus determined that the detective’s fur-
ther questioning was not inappropriate:

    In the present case, the defendant’s comments were
    ambiguous in context because they could have been
    interpreted as not wanting officers to pursue the par-
    ticulars of his drug use as opposed to not wanting to
    continue the questioning at all. By asking defendant
    what he meant by pleading the fifth, the officer
    asked a legitimate clarifying question.

   If a suspect indicates in any manner during questioning that
he wishes to remain silent, interrogation must cease. Miranda
v. Arizona, 384 U.S. 436, 473-74, (1966). Any statement
taken after invocation of the privilege would constitute the
product of compulsion. Id. at 474. However, “when a suspect
makes an ambiguous or equivocal statement it will often be
good police practice for the interviewing officers to clarify
whether or not he actually wants [to invoke the privilege].”
Davis v. United States, 512 U.S. 452, 461 (1994) (holding that
the statement, “Maybe I should talk to a lawyer,” is not neces-
sarily a request for counsel). Clarifying questions “minimize
18396                     ANDERSON v. TERHUNE
the chance of a confession being suppressed due to subse-
quent judicial second-guessing as to the meaning of the sus-
pect’s statement.” Id. “If the suspect’s statement is not
unambiguous or unequivocal . . . the officers have no obliga-
tion to stop questioning.” Id. at 461-62.

   [2] Here, Anderson arguably invoked his right to remain
silent on two occasions. First, he stated, “I don’t even wanna
talk about this no more. We can talk about it later or what-
ever. I don’t want to talk about this no more,”1 and then he
stated, “I plead the fifth.” Anderson did not express a desire
to remain silent in response to the clarifying question. As
noted above, the state court concluded that Anderson’s com-
ments were ambiguous and that the interrogating officer’s
question sought clarification. These are the state-court deter-
minations we must review on appeal.

  If this case were not before us on 28 U.S.C. § 2254 habeas
review, we might be writing a very different opinion. There’s
definitely more than one way to interpret Detective
O’Connor’s interrogation. And, the state court’s interpretation
might not be the most plausible one. But in federal habeas
proceedings under AEDPA,2 great deference is given to state-
court factual and legal determinations.

   To reverse under AEDPA, we would have to find the state-
court conclusion to be “an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d)(2); see also Rice v. Collins,
   1
     Anderson does not argue that this was an unequivocal invocation of his
right to remain silent.
   2
     Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 104, 110 Stat. 1214, 1218 (1996) (amending 28 U.S.C.
§ 2254). AEDPA “modified a federal habeas court’s role in reviewing
state prisoner applications in order to prevent federal habeas ‘retrials’ and
to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (quoting Williams v.
Taylor, 529 U.S. 362, 403-04 (2000)).
                     ANDERSON v. TERHUNE                 18397
126 S. Ct. 969, 974-76 (2006) (holding that it was not unrea-
sonable for a state court to determine that a prosecutor’s
explanations were race-neutral for Batson purposes). Further,
state-court factual findings must be “presumed to be correct,”
and the habeas petitioner “must rebut[ ] the presumption of
correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); see also Miller-El v. Drekte, 125 S. Ct. 2317,
2325 (2005).

   AEDPA similarly requires us to give considerable defer-
ence to a state appellate court’s legal judgments. In reviewing
questions of law, we may not reverse under AEDPA unless
the state’s court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). This inquiry is “straightforward.” Lock-
yer v. Andrade, 538 U.S. 63, 74-75 (2003). We look to the
Supreme Court’s “holdings, as opposed to dicta,” to deter-
mine whether clearly established federal law exists. Williams
v. Taylor, 529 U.S. 362, 412 (2000). And, if clearly estab-
lished federal law applies, it’s not enough for the state court
to incorrectly apply the law: “[A]n unreasonable application
of federal law is different from an incorrect application.” Id.
at 409; see also id. at 411 (“[A] federal habeas court may not
issue a writ simply because that court concludes in its inde-
pendent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incor-
rectly. Rather, that application must also be unreasonable.”).

   [3] We’re thus left with only two ways to reverse: First, we
would have to find that the state court’s factual findings were
unreasonable, and petitioner rebutted them with clear and
convincing evidence. Or, in the alternative, we would have to
hold that this determination was a question of law, and the
state court’s decision unreasonably applied clearly established
federal law. Namely, there would have to be some clear-cut
Supreme Court rule that certain magic words automatically
bring all questioning to a halt—regardless of the circum-
18398                ANDERSON v. TERHUNE
stances surrounding the interrogation. Here, neither is the
case.

  [4] The state court found, for better or for worse, that
Anderson’s attempted invocation of his right to remain silent
was ambiguous and that the officer’s following question legit-
imately sought clarification. Absent a bright-line rule from the
Supreme Court, the state-court conclusion is a reasonable
determination of the facts.

                      Right to Counsel

   [5] Anderson also contends that he validly invoked his right
to counsel and did not subsequently waive this right prior to
the confession. Once Anderson stated “I’d like to have an
attorney present,” the interrogating officers stopped the inter-
rogation and turned the tape recorder off. However, Anderson
unilaterally continued the conversation and asked what was
going to happen to him. Accordingly, the interrogating offi-
cers were not prohibited from further questioning. See Ore-
gon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (holding
that the question, “Well, what is going to happen to me?” is
enough to “initiate” conversation after requesting a lawyer).
In response to the officers’ statements that they could not talk
to him, Anderson clarified that he “was just jokin[g]” and
stated “I don’t want an attorney. I’ve changed my mind.”
Therefore, Anderson validly waived his right to counsel. See
Id. at 1046.

                      Coercion Claims

  [6] Anderson next argues that the interrogating officers
coerced his confession because they withheld basic needs,
such as cigarettes and warm clothing, until he agreed to talk,
exploited his mental condition brought on by chronic drug
use, threatened him with the death penalty and ignored his
requests to remain silent. The record does not support a find-
ing of an involuntary confession. See United States v. Cole-
                        ANDERSON v. TERHUNE                        18399
man, 208 F.3d 786, 791 (9th Cir. 2000) (heroin withdrawal
and physical discomfort not enough to establish involuntari-
ness of confession); United States v. Guerrero, 847 F.2d
1363, 1366 (9th Cir. 1988) (promise to recommend leniency
not enough).

   [7] Finally, Anderson argues that the trial court improperly
excluded evidence of coercion. The state court reasonably
concluded that the criminal trial court did not violate the hold-
ing of Crane v. Kentucky, 476 U.S. 683, 688-91 (1986). Peti-
tioner was not prevented from presenting evidence of the
physical and psychological environment that yielded the con-
fession. Exclusion of purported expert testimony of petition-
er’s self-image and other aspects of the voluntariness of the
confession, if error, was harmless.

                                   ***

   The standard of review is critical here. Under AEDPA, we
must give deference to state-court factual and legal determina-
tions, which in this case are reasonable in light of the evi-
dence presented in the state-court proceedings and the lack of
clearly established federal law to the contrary. The district
court’s judgment denying Anderson’s petition for writ of
habeas corpus is therefore AFFIRMED.



McKEOWN, Circuit Judge, dissenting:

  It is likely that few Americans can profess fluency in the
Bill of Rights, but the Fifth Amendment is surely an exception.1
  1
    As early as 1955, the Supreme Court recognized that “in popular par-
lance and even legal literature, the term ‘Fifth Amendment’ in the context
of our time is commonly regarded as being synonymous with the privilege
against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163
(1955); accord In re Johnny V., 149 Cal. Rptr. 180, 184, 188 (Cal. Ct.
App. 1978) (holding that the statement “I’ll take the fifth” was an asser-
tion of the Fifth Amendment privilege.)
18400                     ANDERSON v. TERHUNE
From television shows like “Law & Order” to movies such as
“Guys and Dolls,” we are steeped in the culture that knows a
person in custody has “the right to remain silent.” Miranda is
practically a household word. And surely, when a criminal
defendant says, “I plead the Fifth,” it doesn’t take a trained
linguist, a Ph.D, or a lawyer to know what he meant.

   Here, Anderson said, “I don’t even wanna talk about this no
more,” “Uh! I’m through with this,” and “I plead the Fifth.”
The officer did not stop questioning but instead responded,
“Plead the Fifth. What’s that?”, continued the questioning,
and ultimately obtained a confession. It is rare to see such a
pristine invocation of the Fifth Amendment and extraordinary
to see such flagrant disregard of the right to remain silent.
Under even the narrowest construction of AEDPA,2 the state
court erred in failing to recognize this constitutional violation.
I respectfully dissent from the majority’s view that there was
some ambiguity in Anderson’s unequivocal invocation of the
Fifth Amendment such that clarifying questions were permit-
ted.

   The continued questioning violated the Supreme Court’s
bright-line rule established in Miranda v. Arizona. Once a
person invokes the right to remain silent, all questioning must
cease:

      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. At this
      point he has shown that he intends to exercise his
      Fifth Amendment privilege; any statement taken
  2
    Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d), a writ of habeas corpus may not be
granted unless the state court’s decision (1) 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
(2) 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.
                     ANDERSON v. TERHUNE                  18401
     after the person invokes his privilege cannot be other
     than the product of compulsion, subtle or otherwise.

384 U.S. 436, 473-74 (1966).

   The expansion of legitimate clarifying questions to cover
this situation is contrary to, and an unreasonable application
of, clear Supreme Court precedent. Additionally, even a cur-
sory examination of the interrogation transcript reveals that
the state court made an unreasonable determination of the
facts in evaluating Anderson’s Miranda claim. Anderson’s
invocation was not ambiguous, and only one reasonable con-
clusion can be gleaned from his statements, especially his last
declaration, “I plead the Fifth:” he invoked his right to remain
silent and wanted to end the interrogation.

I.   THE INTERROGATION

   After an initial interview about the murder, Anderson was
brought to the police station for further questioning. The rele-
vant portion of the transcript is so extraordinary that it bears
repeating. Despite clear and repeated invocations of his right
to remain silent, the officers continued to question Anderson
about the murder:

     Officer:     You act like you’re cryin’ like a baby,
                  an’ you can’t cry for someone that was
                  a no good . . . an’ you killed him for a
                  good reason.

     Anderson:    No, way! No, way. I — You know
                  what, I don’t even wanna talk about this
                  no more. We can talk about it later or
                  whatever. I don’t want to talk about this
                  no more. That’s wrong. That’s wrong.

     Officer:     Right now, you show your remorse.
18402               ANDERSON v. TERHUNE
   Immediately after this exchange, the officer continued to
interrogate Anderson regarding his drug use on the day of the
murder, including whether Anderson had used pipes. This
questioning is significant because the murder victim was
found with a pipe next to him. The entire conversation was
about the murder. In response to this questioning, Anderson
unambiguously indicated that he wanted to end the interroga-
tion by stating that he was “through with this,” wanted to “be
taken into custody” and “I plead the Fifth”:

    Anderson:    I have nothin’ to worry about, nothin’ to
                 hide. That’s why I show no remorse.
                 Nothin’ to worry about, nothin’ to hide.
                 He was my friend, an’ there’s no way I
                 would do it. No, way I would do it.

    Officer:     Were you high that day?

    Anderson:    No, sir. I — probably was later on. Yes.

    Officer:     Did you have any dope with you that
                 . . . that day?

    Anderson:    No, sir.

    Officer:     No, dope at all? What do you smoke
                 with?

    Anderson:    I smoke with my . . . my fingers.

    Officer:     When you smoke your dope what do
                 you do with that? How do you smoke
                 that?

    Anderson:    You smoke it with pipes and stuff like
                 that.

    Officer:     Okay. What kind of pipes?
               ANDERSON v. TERHUNE               18403
Anderson:   Lines.

Officer:    What kind of pipes?

Anderson:   N’ah . . . I would — I —

Officer:    Well, what kind of pipes?

Anderson:   Uh! I’m through with this. I’m through.
            I wanna be taken into custody, with my
            parole . . .

Officer:    Well, you already are. I wanna know
            what kind of pipes you have?

Anderson:   I plead the [F]ifth.

Officer:    Plead the [F]ifth. What’s that?

Anderson:   No, you guys are wrong. You guys are
            wrong. You guys have—I’ve tried to
            tell you everything I know. As far as I
            know, you guys are lying, uh, making
            things up, extenuating and that’s not
            right. It’s not right.

Officer:    We’re not makin’ anything up.

Anderson:   Sir, sure you are.

Officer:    What are we makin’ up?

Anderson:   You’re tellin’ me that I didn’t have
            tears in my eyes.

Officer:    Yeah.

Anderson:   You’re tellin’ me, okay, that, uh, uh,
            Abe said I kilt him. That’s a lie.
18404                 ANDERSON v. TERHUNE
   The questioning continued until Anderson asked for a law-
yer: “I’d like to have an attorney present.” At that juncture,
the police turned off the tape recorder and, somewhat suspi-
ciously, following this hiatus, the officer concluded that
Anderson wanted to reinitiate the discussion. The questioning,
which took place over a three-hour period, led to a confession
by Anderson.

II.   IN CLEAR VIOLATION OF MIRANDA, THE STATE COURT
      UNREASONABLY CONCLUDED THAT ANDERSON’S
      INVOCATION (“I PLEAD THE FIFTH”) WAS AMBIGUOUS

   Against this backdrop, the state court accurately recognized
that Anderson unambiguously invoked his right to remain
silent when he stated, “I plead the Fifth,” but then went on to
eviscerate that conclusion by stating that the comments were
“ambiguous in context”:

      In the present case, the defendant’s comments were
      ambiguous in context because they could have been
      interpreted as not wanting officers to pursue the par-
      ticulars of his drug use as opposed to not wanting to
      continue the questioning at all. By asking defendant
      what he meant by pleading the fifth, the officers
      asked a legitimate clarifying question.

  Using “context” to make an unambiguous invocation
ambiguous defies both common sense and established
Supreme Court law.

   Although the Supreme Court has observed that in invoking
a constitutional right, “a suspect need not ‘speak with the dis-
crimination of an Oxford don,’ ” Davis v. United States, 512
U.S. 452, 459 (1994) (quoting id. at 476 (Souter, J., concur-
ring)), Anderson would meet even this erudite standard. This
is not a case where the officers or the court were left scratch-
ing their heads as to what Anderson meant. Nothing was
                        ANDERSON v. TERHUNE                        18405
ambiguous about the statement “I plead the Fifth.”3 That invo-
cation should have brought an immediate end to questioning.
Miranda, 384 U.S. at 473.

   Instead of honoring the request, the interrogating officers
decided to “play dumb,” hoping to keep Anderson talking by
responding, “Plead the Fifth. What’s that?” This effort to keep
the conversation going was almost comical. The officer knew
what “I plead the Fifth” meant. It is baffling that the state
court determined that “[b]y asking defendant what he meant
by pleading the Fifth, the officers asked a legitimate clarifying
question.” Nothing needed clarification. What about the
words “I plead the Fifth” would be unclear, ambiguous, or
confusing to a reasonable officer? See Connecticut v. Barrett,
479 U.S. 523, 529 (1987) (holding in the context of the invo-
cation of the right to counsel that “[i]nterpretation is only
required where the defendant’s words, understood as ordinary
people would understand them, are ambiguous”). Rather, the
officer hoped Anderson would explain more about the mur-
der, the exact topic he did not want to talk about. They knew
that continuing the interrogation was “reasonably likely to
elicit an incriminating response” from Anderson. Rhode
Island v. Innis, 446 U.S. 291, 303 (1986). And they were
right.

   The Supreme Court has countenanced clarifying questions
only to ascertain whether the suspect actually invoked the
right to remain silent. See, e.g., Miranda, 384 U.S. at 444-45
(focusing only on the threshold question of whether the
accused “indicate[d] in any manner and at any stage of the
process that he wish[ed] to consult with an attorney before
speaking” when deciding whether police had honored their
Fifth Amendment rights); Edwards v. Arizona, 451 U.S. 477,
  3
   See Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir. 2005) (holding,
with respect to a defendant who said that he did not want to talk on tape,
that “it is difficult to imagine how much more clearly a layperson . . .
could have expressed his right to remain silent.”).
18406                ANDERSON v. TERHUNE
484-85 (1981) (focusing on whether accused had actually “ex-
pressed his desire” for, or “clearly asserted” his invocation of
his Fifth Amendment rights); Smith v. Illinois, 469 U.S. 91,
95 (1984) (holding that “[t]his case concerns the threshold
inquiry: whether Smith invoked his right to counsel in the
first instance”). Ignoring this principle, the state court found
that the comments were ambiguous “because they could have
been interpreted as not wanting officers to pursue the particu-
lars of his drug use as opposed to not wanting to continue the
questioning at all.”

   While the majority defers to this far-fetched reasoning, the
rationale for the state court decision falls of its own weight.
The police did not ask Anderson what subject he did not want
to discuss; nor did any of their follow-up questioning address
this topic. The state court’s characterization is a fanciful re
imagining of the colloquy between Anderson and the police,
and under AEDPA, certainly an unreasonable determination
of the facts. Significantly, the question can hardly be charac-
terized as one to clarify or double-check whether Anderson
invoked his right to remain silent, the only legitimate clarify-
ing inquiry authorized by Supreme Court precedent. Smith,
469 U.S. at 95. The state court’s conclusion that “[i]t was the
defendant, not the interrogators, who continued the discus-
sion,” 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.”
Miranda, 384 U.S. at 474. Finally, even taken on its own
terms, the majority’s factual hair-splitting is mistaken. It
makes no sense to split hairs and say that maybe, just maybe,
Anderson wanted to talk about the murder and not about his
drug use because, in fact, the drug use was inextricably inter-
twined with the murder. It is precisely this kind of hair-
splitting that the Supreme Court wanted to avoid when it fash-
ioned the bright-line rule in Miranda. Davis, 512 U.S. at 461
(noting that the benefit of the bright-line rule is the “clarity
and ease of application” that can be applied by officers in the
                     ANDERSON v. TERHUNE                 18407
real world without “unduly hampering the gathering of infor-
mation” by forcing them to make “difficult judgment calls”
with a “threat of suppression if they guess wrong”). No guess
work was required here.

   But under the majority’s interpretation of Miranda and its
progeny, every time a suspect unequivocally invokes the right
to remain silent, the police can ask follow-up questions to
clarify whether he really, really wants to invoke the right and
to parse the subject matter—“what specifically do you not
want to talk about?” The majority’s holding allows the police
to turn the Fifth Amendment into a game of “Twenty Ques-
tions,” permitting the police to continue the interrogation and
forcing the suspect to take a multiple choice quiz. Such a
practice is tantamount to endless re-interrogation.

   Where the initial request to stop the questioning is clear,
“the police may not create ambiguity in a defendant’s desire
by continuing to question him or her about it.” Barrett, 479
U.S. at 535 n.6 (Brennan, J., concurring). By parsing Ander-
son’s invocation into specific subjects, the police “failed to
honor a decision of a person in custody to cut off questioning,
either by refusing to discontinue the interrogation upon
request or by persisting in repeated efforts to wear down his
resistance and make him change his mind.” Michigan v. Mos-
ley, 423 U.S. 96, 105-06 (1975). The net result is that such
follow-up questions allow “the authorities through ‘badger-
[ing]’ or ‘overreaching’—explicit or subtle, deliberate or
unintentional—[to] wear down the accused and persuade him
to incriminate himself.” Smith, 469 U.S. at 98.

   Looking at this case through the AEDPA lens of deference
does nothing to change my conclusions. The state court’s
decision to ignore an unambiguous declaration of the right to
remain silent is directly contrary to Miranda. To the extent
the question is one of interpretation of Miranda and related
Supreme Court precedent, the state court’s interpretation is
flatly unreasonable. See Runnels, 421 F.3d at 867. And to
18408                  ANDERSON v. TERHUNE
characterize Anderson’s statements as ambiguous was cer-
tainly an unreasonable finding of fact.

III.    THE STATE COURT ACTED CONTRARY TO SUPREME
        COURT PRECEDENT BY USING ANDERSON’S RESPONSES
        TO RE-INTERROGATION TO FIND A VALID WAIVER


   The state appellate court attempted to bolster its conclusion
about Anderson’s statements by claiming that he waived his
right to remain silent in continuing to answer police questions
after he stated, “I plead the Fifth”:

       By continuing to talk to the police officers, defen-
       dant demonstrated a willingness to continue to dis-
       cuss the case . . . . Accordingly, while words of
       invocation were spoken by the defendant, the court
       concludes that, in any case, he effectively waived the
       right to remain silent by what followed.

   Put another way, the state court suggests that because the
officers ignored Anderson’s unequivocal invocation of the
Fifth Amendment, their questioning caused him to keep talk-
ing, resulting in a waiver of his right to remain silent. This
analysis directly contravenes clear Supreme Court precedent,
thereby providing another ground upon which to grant the
writ under § 2254(d)(1).

  Smith mandates that all questioning must immediately
cease once the right to remain silent is invoked, and that any
subsequent statements by the defendant in response to contin-
ued interrogation cannot be used to find a waiver or cast
ambiguity on the earlier invocation. The Supreme Court’s
somewhat lengthy but crystal clear recitation of this principle
bears repeating:

       Where nothing about the request for counsel or the
       circumstances leading up to the request would render
       it ambiguous, all questioning must cease. In these
                    ANDERSON v. TERHUNE                  18409
    circumstances, an accused’s subsequent statements
    are relevant only to the question whether the accused
    waived the right he had invoked. Invocation and
    waiver are entirely distinct inquiries, and the two
    must not be blurred by merging them together. . . .

    With respect to the waiver inquiry, we accordingly
    have emphasized that a valid waiver “cannot be
    established by showing only that [the accused]
    responded to further police-initiated custodial inter-
    rogation.” Using an accused’s subsequent responses
    to cast doubt on the adequacy of the initial request
    itself is even more intolerable. “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 that he wished to speak
    through an attorney or not at all.”

Smith, 469 U.S. at 98-99 (internal citations omitted).

  The prejudice from Anderson’s confession cannot be soft
pedaled, and the error was not harmless. Brecht v. Anderson,
507 U.S. 619, 623 (1993). I would grant the writ of habeas
corpus.
