Tio Sessoms v. D Runnels

This case is before our en banc panel for a second time after the Supreme Court vacated our prior opinion and remanded for further consideration in light of Salinas v. Texas, — U.S. —, 133 S.Ct. 2174 , 186 L.Ed.2d 376 (2013). I concur in Judge Murguia’s dissent. I write separately to stress that I read the Supreme Court’s remand for further consideration in light of Salinas as precluding the majority’s conclusion that Sessoms’s comments were so unambiguous as to render the California Court of Appeal’s opinion unreasonable.

Although Salinas concerned the right to remain silent rather than the right to counsel, Justice Alito’s plurality opinion in Salinas sets forth a controlling perspec *898 tive. 1 He first reiterated that “[t]he privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.’ ” 133 S.Ct. at 2179 (quoting Garner v. United States, 424 U.S. 648 , 658 n. 11, 96 S.Ct. 1178 , 47 L.Ed.2d 370 ). He explained that the requirement that the privilege be clearly invoked:

133 S.Ct. at 2179 . Justice Alito further elaborated that “[a] witness’ constitutional right to refuse to answer questions depends…

Opinion by

An American poet wrote more than 100 years ago: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” 1 When a suspect says “give me a lawyer,” that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal — it is not a maybe or a perhaps — it is an invocation of the Fifth Amendment right to counsel.

In late 1999, a naive and relatively uneducated nineteen-year-old Tio Sessoms sat alone in an eight-by-ten foot interrogation room. Four days earlier, on the advice of his father, Sessoms had turned himself in to the police. Before doing so, Sessoms’s father told his son: you must ask for a lawyer before talking to the police.

Sessoms followed his father’s advice. When the two police detectives entered the interrogation room, Sessoms sat slouched in his chair. He looked up, and they exchanged brief pleasantries. Sessoms was unfailingly polite, even saying he was glad the detectives “had a safe flight.” Forty seconds after the detectives entered the room, the following exchange occurred:

Instead of immediately…

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for — and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love — or even understand— and perhaps not even most of them. I am dismayed that Sessoms’s fate — whether he will spend his remaining days in prison, half a century or more caged like an animal — turns on such esotérica. But that’s *897 the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, — U.S.—, 132 S.Ct. 2, 4 ,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIO DINERO SESSOMS, No. 08-17790 Petitioner-Appellant, D.C. No. v. 2:05-cv-01221-JAM-GGH

RANDY GROUNDS, Warden, Respondent-Appellee. OPINION

On Remand from the United States Supreme Court

Argued and Submitted March 18, 2014—San Francisco, California

Filed September 22, 2014

Before: Alex Kozinski, Chief Judge, and Mary M. Schroeder, Barry G. Silverman, M. Margaret McKeown,* Kim McLane Wardlaw, Raymond C. Fisher, Richard A. Paez, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta and Mary H. Murguia, Circuit Judges.

Opinion by Judge McKeown; Dissent by Chief Judge Kozinski; Dissent by Judge Callahan; Dissent by Judge Murguia

* Judge McKeown was drawn to replace Judge B. Fletcher following her death shortly after the initial en banc decision. SUMMARY**

Habeas Corpus

On remand from the United States Supreme Court, the en banc court reversed the district court’s judgment denying Tio Dinero Sessoms’s 28 U.S.C. § 2254 habeas corpus petition challenging his conviction of murder, robbery, and burglary, and…