                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                          FILED
                            FOR THE NINTH CIRCUIT
                                                                           FEB 26 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
EDUARDO NAVARETTE,                               No.    16-55630

               Petitioner-Appellant,             D.C. No.
                                                 2:14-cv-08457-PSG-MRW
          v.

WILLIAM JOE SULLIVAN, Warden,                    MEMORANDUM*

               Respondent-Appellee.

                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                      Argued and Submitted February 13, 2019
                               Pasadena, California

Before: FISHER, CALLAHAN and OWENS, Circuit Judges.

      Eduardo Navarette appeals the denial of his 28 U.S.C. § 2254 habeas

petition. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see

Gulbrandson v. Ryan, 738 F.3d 976, 986 (9th Cir. 2013), and we affirm.

      Under § 2254(d)(1), we may not grant habeas relief unless the California

Court of Appeal unreasonably applied Michigan v. Mosley, 423 U.S. 96 (1975).


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
This standard is “difficult to meet” and is satisfied only “where there is no

possibility fairminded jurists could disagree that the state court’s decision conflicts

with [the Supreme] Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102

(2011). Navarette “must show that the state court’s ruling . . . was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Id. at 103.

      Navarette has not met this standard. Under Mosley, 423 U.S. at 104, “the

admissibility of statements obtained after the person in custody has decided to

remain silent depends under Miranda on whether his ‘right to cut off questioning’

was ‘scrupulously honored.’” Here, a fairminded jurist could conclude that the

police scrupulously honored Navarette’s March 12 invocation of his right to cut off

questioning because: (1) he was provided full Miranda warnings on March 12; (2)

when he invoked his right to silence on March 12, the police immediately ceased

questioning; (3) the police thereafter did not engage in repeated attempts to

question him in order to wear down his resistance; (4) substantial time (two days)

elapsed between the March 12 invocation and the March 14 resumption of

questioning; (5) the March 12 questioning and the March 14 questioning were

conducted by different officers; (6) the police did not coerce Navarette to waive his

Miranda rights; (7) although the police did not provide Miranda warnings at the


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outset of the March 14 questioning, they did provide a full set of warnings (and

obtain his waiver) before questioning him specifically about the crimes themselves;

(8) Navarette’s confession came after the mid-questioning Miranda warnings; and

(9) although the two interviews involved the same crimes, courts applying Mosley

have accorded this factor little weight. See United States v. Hsu, 852 F.2d 407, 410

(9th Cir. 1988); Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir. 1987).

      Although the police failed to give Miranda warnings at the outset of the

second interview, several federal circuit decisions have held – albeit on different

facts – that this failure is not necessarily dispositive under Mosley. See United

States v. Wyatt, 179 F.3d 532, 534, 538 (7th Cir. 1999); Weeks v. Angelone, 176

F.3d 249, 267-69 (4th Cir. 1999), aff’d on other grounds, 528 U.S. 225 (2000);

United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998); Kelly v. Lynaugh,

862 F.2d 1126, 1130-31 (5th Cir. 1988); United States v. Pugh, 25 F.3d 669, 672-

73 (8th Cir. 1994); Stumes v. Solem, 752 F.2d 317, 321 (8th Cir. 1985). The

California Court of Appeal therefore reasonably applied Mosley.

      AFFIRMED.




                                          3
                                                                          FILED
Navarette v. Sullivan, No. 16-55630
                                                                           FEB 26 2019

FISHER, Circuit Judge, concurring:                                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


      I agree with the memorandum disposition that the California Court of

Appeal did not unreasonably apply Michigan v. Mosley, 423 U.S. 96 (1975), within

the meaning of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254(d)(1). I write separately, however, to explain that,

were we to review Navarette’s claim de novo, I would hold that the police did not

scrupulously honor Navarette’s invocation of his right to cut off questioning, as

Mosley requires.

      On March 12, 2011, Navarette was advised of his Miranda rights and

invoked his right to cut off questioning. On March 14, two police detectives

resumed questioning. They did not provide a fresh set of Miranda warnings at the

outset of the questioning, as Miranda requires. See Miranda v. Arizona, 384 U.S.

436, 467-68 (1966) (“At the outset, if a person in custody is to be subjected to

interrogation, he must first be informed in clear and unequivocal terms that he has

the right to remain silent.”); Sessoms v. Grounds, 776 F.3d 615, 628 (9th Cir.

2015) (en banc) (“Interrogation does not begin once the officers get to the hard

questions. Miranda warnings are required before any interrogation begins.”); cf.

Mosley, 423 U.S. at 104 (“He was given full and complete Miranda warnings at

the outset of the second interrogation.”). The detectives instead advised Navarette
that they were aware that he had invoked his right to remain silent, but that they

intended to question him anyway. They told him, “You say when you are arrested

that you don’t want to say anything, but right now, we only have a form. This

form is not regarding the case; it is just a form regarding questions about your life,

your family, things like that.” They implied, in other words, that he did not have

the right to remain silent – exactly the opposite of what they should have said.

      The two detectives then proceeded to question Navarette for 30 minutes

before providing Miranda warnings. The detectives later readily acknowledged

that this questioning was investigatory, which it plainly was. The detectives asked

an array of questions that were designed to – and likely to – elicit incriminatory

responses. They asked Navarette, for example, whether he had been arrested

before; whether he had “a gun” or a “weapon”; whether he used or sold drugs; the

contents of his jailhouse telephone conversation with his stepmother, a key

prosecution witness; a range of questions pertaining to his opportunity to commit

the alleged assaults – i.e., his school and work schedules and when he lived in the

home in which the assaults occurred; and the identity of potential witnesses for the

prosecution.

      The two detectives, moreover, used the pre-Miranda questioning not only to

obtain useful information but also to condition Navarette to answering their

                                           2
questions and to ingratiate themselves to Navarette. They complimented him, for

example, for doing well in school, making the varsity soccer team, being a hard

worker and helping his mother and grandparents financially.

      After 30 minutes, the detectives finally advised Navarette of his Miranda

rights. The detectives then obtained Navarette’s waiver of those rights and,

ultimately, a confession. The prosecution relied heavily on that confession at trial,

and Navarette was convicted.

      The state implausibly suggests that this 30 minutes of questioning was

permissible under Miranda because it was not “interrogation.” Not so. To be sure,

the Supreme Court has recognized that interrogation does not include words or

actions on the part of the police that are “normally attendant to arrest and custody.”

Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This “‘routine booking question’

exception,” however, applies only to questioning conducted “to secure the

biographical data necessary to complete booking or pretrial services” – i.e.,

questions regarding a suspect’s “name, address, height, weight, eye color, date of

birth, and current age” that are “reasonably related to the police’s administrative

concerns.” Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990) (plurality

opinion) (internal quotation marks omitted). The exception does not apply to

questioning “conducted for an investigatory purpose and not for the booking

                                          3
process,” United States v. Poole, 794 F.2d 462, 466 (9th Cir. 1986) (as amended),

or “reasonably likely to elicit an incriminating response from the suspect,” United

States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981) (quoting Innis, 446 U.S. at

301). The questioning at issue here – investigatory, non-routine and likely to elicit

incriminating responses – falls well outside the routine booking question

exception.

      The failure to provide warnings at the outset of the second interrogation

therefore violated Miranda, and this Miranda violation was intentional. As we

explained in United States v. Williams, 435 F.3d 1148, 1160 (9th Cir. 2006),

“[b]ecause law enforcement officers generally retain control over the timing of a

Miranda warning and giving the warning to a custodial suspect imposes only a

minimal burden, the officer’s deferral of the warning . . . supports an inference of

deliberateness.” Cf. Missouri v. Seibert, 542 U.S. 600, 620 (2004) (Kennedy, J.,

concurring) (recognizing a Miranda violation where “[t]he police used a two-step

questioning technique based on a deliberate violation of Miranda”).

      The actions of the police in this case were not in keeping with Mosley.

Rather than scrupulously honoring Navarette’s right to cut off questioning, they

interrogated him outside of Miranda. They did so extensively and deliberately.

Accordingly, on de novo review, I would hold that the police obtained Navarette’s

                                          4
confession in violation of Mosley. I nonetheless concur in the decision of the court

because the California Court of Appeal’s contrary decision survives deferential

review under AEDPA.




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