NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN ORELLANA, No. 17-56717

Petitioner-Appellant, D.C. No. 2:16-cv-02316-FMO-FFM v.

RAYMOND MADDEN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted December 12, 2019** Pasadena, California

Before: BOGGS,*** WARDLAW, and BEA, Circuit Judges.

Juan Orellana is a prisoner in the California penal system serving a term of

15 years to life for convictions of oral copulation with a child and committing a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. lewd act on a child. He appeals the district court’s denial of his petition for a writ

of habeas corpus made under 28 U.S.C. § 2254. The sole question we must decide

is whether it was “contrary to, or involved an unreasonable application of, clearly

established” United States Supreme Court caselaw for the California Court of

Appeal to conclude that Orellana did not invoke unambiguously his right to have

an attorney present during police interrogation. See 28 U.S.C. § 2254(d)(1). We

hold that the California Court of Appeal did not violate this standard and affirm the

district court in denying Orellana’s habeas petition.

At the outset of the interrogation, Detective Hernandez read Orellana his

Miranda rights. After she read each right to him, Detective Hernandez asked

Orellana if he understood the right; each time Orellana responded, “Yes.” After

Detective Hernandez read Orellana his rights, and after he responded that he

understood his rights, the detective asked Orellana why he had skipped his

appointment with the detective for a voluntary interview. Orellana responded:

“Yes, and then I talked to the attorney ‘cause I had already paid her, and she told

me, ‘You can’t go because first—’ she said . . . .” Detective Hernandez then

interrupted Orellana to tell him “it’s not the attorney’s decision,” and if Orellana

wanted to talk about the case, Detective Hernandez could discuss it with him.

Orellana continued to talk with Detective Hernandez voluntarily and never asked

to speak to his attorney.

2 Orellana’s “reference to an attorney . . . [was] ambiguous or equivocal in

that a reasonable officer in light of the circumstances would have understood only

that [he] might be invoking the right to counsel,” not that he necessarily did invoke

his right. Davis v. United States, 512 U.S. 452, 459 (1994). Orellana’s answer

referencing an attorney was given in response to a question regarding why

Orellana had skipped the scheduled voluntary interview. The statement was clear

on two facts: (1) Orellana had retained counsel, and (2) Orellana’s counsel told

him not to attend the voluntary interview. No other information was clearly

conveyed in the statement, and the words used did not express an unambiguous

request for the presence of an attorney. Detective Hernandez was not required to

stop the interrogation just because Orellana referenced his attorney; the burden was

on Orellana to “unambiguously request counsel.” Id.

The California Court of Appeal’s decision that Orellana’s Fifth Amendment

rights were not violated when questioning continued because he “had not

unambiguously demanded counsel,” People v. Orellana, No. B255892, 2015 WL

1954474, at *7 (Cal. Ct. App. Apr. 30, 2015), applied the correct legal standard

and was not an unreasonable application of clearly established federal law. See 28

U.S.C. § 2254(d)(1). The district court was correct to deny Orellana’s habeas

petition.

AFFIRMED.

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