                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 17 2012

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




                            FOR THE NINTH CIRCUIT



TEREBEA JEAN WILLIAMS,                           No. 11-15653

              Petitioner - Appellant,            D.C. No. 2:05-cv-00058-LKK-
                                                 GGH
  v.

DEBORAH JACÏUEZ,                                 MEMORANDUM *

              Respondent - Appellee.



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

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: NOONAN and MURGUIA, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Terebea Jean Williams appeals the district court's denial of her habeas

corpus petition. Williams asserts that this court should vacate her conviction and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for Central California, sitting by designation.
order a new trial because her custodial statements were admitted at trial in

violation of Miranda v. Arizona, 384 U.S. 436 (1996).

      The California Court of Appeal did not unreasonably apply federal law in

determining that any potential violation of Williams's Miranda rights was excused

under California's rescue doctrine. While the questioning of Williams may have

been investigatory in nature as to not fall within the 'public safety' exception set

out in New Yorµ v. Ïuarles, 467 U.S. 649 (1984), 'fair-minded jurists could

disagree.' Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The state court's

finding that the officers were prompted by a concern for rescue does not violate

'clearly established federal law, as determined by the Supreme Court of the United

States.' 28 U.S.C. y 2254(d).

      AFFIRMED.




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                                                                             FILED
Williams v. Jacquez, No. 11-15653                                              MAY 17 2012

                                                                         MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, concurring in the judgment.                         U.S. COURT OF APPEALS




      I write separately because, unliµe the majority, I cannot say that the

California Court of Appeal's decision that Williams's confession was admissible

under the California 'rescue doctrine' was a reasonable application of New Yorµ v.

Ïuarles, 467 U.S. 649 (1984). Instead, although a close question, I would affirm

because the California trial court was not objectively unreasonable in holding that

Williams's invocation of the right to remain silent was equivocal. See Anderson v.

Terhune, 516 F.3d 781 (9th Cir. 2008) (en banc).

      '[T]he Supreme Court's commitment to Miranda's fundamental tenet--that

police must 'scrupulously honor[ ]' a suspect's right to remain silent by

immediately ceasing questioning when the suspect invoµes this right--has never

wavered.' Anderson, 516 F.3d at 788 (quoting Miranda v. Arizona, 384 U.S. 436,

479 (1966)) (internal citation omitted) (alteration in original). In Ïuarles, the

Supreme Court created a 'public safety' exception to Miranda, allowing officers to

question a suspect before giving a Miranda warning as long as their questions are

'related[d] to an objectively reasonable need to protect the police or the public

from any immediate danger associated with [a] weapon.' 467 U.S. at 659 n.8. In

outlining the bounds of the Ïuarles exception, the Supreme Court stressed that it

does not apply to 'questions designed solely to elicit testimonial evidence from a
suspect.' Id. at 659. Nor does it apply where circumstances require no 'immediate

action by the officers beyond the normal need expeditiously to solve a serious

crime.' Id. at 659 n.8 (distinguishing Orozco v. Texas, 394 U.S. 324 (1969)). Due

to the specific nature of this 'narrow exception,' id. at 658, only a limited range of

applications of Ïuarles may be deemed reasonable. Yarborough v. Alvarado, 541

U.S. 652, 664 (2004) ('The more general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations.').

       The record in this case unambiguously shows that the officers' questions

had nothing to do with an objectively reasonable need to protect the police or the

public from any immediate danger. The officers questioned Williams for hours,

while she was uncontestedly in custody, asµing general questions designed to

investigate a crime and elicit incriminating statements. The investigatory nature of

Williams's interrogation bears a starµ resemblance to the questioning in Orozco v.

Texas, 394 U.S. 324, 325 (1969), that the Ïuarles Court specifically denounced.

467 U.S. at 659 n.8.

      Admittedly, this Circuit has applied Ïuarles to a broader range of cases than

other circuits. Compare United States v. Brady, 819 F.2d 884 (9th Cir. 1987), with

United States v. Williams, 483 F.3d 425 (6th Cir. 2007), and United States v.

DeJear, 552 F.3d 1196 (10th Cir. 2009). In justifying the admission of statements


                                           2
under the Ïuarles exception even where officers lacµed actual µnowledge of a

weapon, Brady, 819 F.2d at 888, and where there was no 'pressing need for haste,'

United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994), we have stressed the

non-investigatory nature of the questioning. Carrillo, 16 F.3d at 1049-50 (labeling

as non-investigatory a 'narrowly tailored' question about a weapon that called for

a 'yes' or 'no' answer that was not followed by further questioning); Brady, 819

F.2d at 888. By holding that fair-minded jurists could disagree about the

application of Ïuarles to the lengthy and meticulous testimonial interrogation that

Williams was subjected to, the majority undermines the bounds of an exception

'circumscribed by the exigency which justifies it.' Ïuarles, 467 U.S. at 658.

      Accordingly, I concur only in the majority's judgment and not its reasoning.




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