Saleh

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HABIB TAWFEQ SALEH,  No. 04-35509 Petitioner-Appellant, v.  D.C. No.

CV-03-03106-JCC

GARY FLEMING,

OPINION

Respondent-Appellee.  Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Chief District Judge, Presiding

Argued and Submitted March 5, 2007—Seattle, Washington

Filed January 3, 2008

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain; Concurrence by Judge Berzon

93 SALEH v. FLEMING

COUNSEL

Corey Endo, Research and Writing Attorney, Federal Public Defender, Seattle, Washington, argued the cause and was on the briefs for the petitioner-appellant. Thomas W. Hillier, II, Federal Public Defender, was on the briefs.

Ronda D. Larson, Assistant Attorney General, Seattle, Wash- ington, argued the cause for the respondent-appellee and was on the brief. Rob McKenna, Attorney General, State of Wash- ington, was on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a phone conversation with police…