NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MY LOAN NGUYEN, No. 21-15359

Petitioner-Appellant, D.C. No. 3:19-cv-02952-WHA

v.

MEMORANDUM*

MICHAEL PALLARES,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding

Argued and Submitted May 10, 2022 San Francisco, California

Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.

My Loan Nguyen appeals from the district court’s denial of her 28 U.S.C. §

2254 petition for a writ of habeas corpus. Nguyen argues that incriminating

statements she made during custodial interrogation were admitted at her trial in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that she received

ineffective assistance of counsel during plea negotiations under the standard set

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. forth in Strickland v. Washington, 466 U.S. 668 (1984). We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

Federal habeas relief “shall not be granted” to a state prisoner “with respect

to any claim that was adjudicated on the merits in State court proceedings,” unless

the state court decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). While Supreme Court precedent is the

only source of “clearly established” federal law, “we must follow our cases that

have determined what law is clearly established.” Byrd v. Lewis, 566 F.3d 855,

860 n.5 (9th Cir. 2009) (citation omitted).

The California Court of Appeal did not unreasonably apply clearly

established federal law in determining that Nguyen had not unequivocally invoked

her Miranda rights when she stated to police, “I think I shouldn’t say any more

from there.” See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that “if

a suspect makes a reference to an attorney that is ambiguous or equivocal in that a

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

the suspect might be invoking the right to counsel,” the officer is not required to

cease questioning); Clark v. Murphy, 331 F.3d 1062, 1070–71 (9th Cir. 2003)

2 (holding that a state court was not unreasonable in finding the statement “I think I

would like to talk to a lawyer” was not an unambiguous invocation of the right to

counsel). Nor was the state court unreasonable to rest its determination in part on

Nguyen’s eagerness to continue speaking and volunteering information to police

after her purported invocation. Although a suspect’s post-request responses to

continued interrogation may not be used to cast doubt on the clarity of an

unambiguous invocation, see Smith v. Illinois, 469 U.S. 92, 99–100 (1984),

Nguyen’s statement was not unambiguous.

Nguyen argues that the state superior court unreasonably applied Strickland

and reached a decision based on an objectively unreasonable factual determination

when it rejected her ineffective assistance of counsel claim without holding an

evidentiary hearing. Although Nguyen contends that her defense counsel failed to

explain to her “the intricacies of her case,” she cites no clearly established law

obligating her counsel to provide her with any advice he failed to give. Nguyen

does not dispute that her counsel accurately conveyed the terms of a twenty-year

plea offer made by the prosecution on the morning of her preliminary hearing, or

that he accurately advised that she could face life charges if she rejected the offer.

Because Nguyen did not make out a colorable claim of ineffective assistance of

counsel, she did not meet the threshold requirement for entitlement to an

evidentiary hearing, see Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005), or

3 entitlement to relief, see Lafler v. Cooper, 566 U.S. 156, 164 (2012).

AFFIRMED.

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