Billy Russell Clark v. Tim Murphy

331 F.3d 1062 Billy Russell CLARK, Petitioner-Appellant, v. Tim MURPHY, Respondent-Appellee. No. 00-16727. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2002. Filed June 10, 2003. COPYRIGHT MATERIAL OMITTED James M. Jellison argued the cause for the appellant. Anders Rosenquist, Jr., Rosenquist & Associates, Phoenix, AZ, was on the briefs. Ginger Jarvis, Assistant Arizona Attorney General, argued the cause for the appellee. Janet Napolitano, Arizona Attorney General; Randall M. Howe, Arizona Chief Counsel, Criminal Appeals Section; Diane M. Ramsey, Assistant Arizona Attorney General, were on the brief. Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-97-00560-ROS. Before: STAPLETON, * O'SCANNLAIN and FERNANDEZ, Circuit Judges. 1 Opinion by Judge O'SCANNLAIN; Concurrence by Judge STAPLETON. ORDER AND AMENDED OPINION ORDER 2 The opinion and concurrence filed on January, 23, 2003, and appearing at 317 F.3d 1038 (9th Cir.2003), are amended. The amended opinion and concurrence are filed herewith. 3 The panel has voted unanimously to deny the petition for rehearing.…

Opinion by Judge O’SCANNLAIN; Concurrence by Judge STAPLETON.

ORDER AND AMENDED OPINION

ORDER

The opinion and concurrence filed on January, 23, 2003, and appearing at 317 F.3d 1038 (9th Cir.2003), are amended. The amended opinion and concurrence are filed herewith.

The panel has voted unanimously to deny the petition for rehearing. Judge O’Scannlain has voted to deny the petition for rehearing en banc, and Judge Stapleton and Judge Fernandez so recommended.

The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.

OPINION

In this petition for writ of habeas corpus, we must decide whether a state court’s determination — that the admission into evidence of a murder suspect’s confession did not violate the Constitution — was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court.

I

On May 15, 1991, Cynthia Tomecko reported to Phoenix police that her mother, Anita…

concurring:

I agree with my colleagues 'that the state court’s resolution of Clark’s claims was neither contrary to, nor an unreasonable application of, clearly established federal law. I reach my conclusions by a somewhat different route, however.

This case is difficult because Clark’s statement — “I think I would like to talk to a lawyer” — reflects at least a tentative decision in favor of having a lawyer. It does *1074 not, however, indicate unequivocally that a final decision has been made.

Such a statement presents a more appealing case than did the statement in Davis 1 — “Maybe I should talk to a lawyer” — for a rule that the interrogating officer must provide an opportunity for reflection and seek clarification before continuing the substantive interrogation. While the Davis Court’s interest in drawing a bright-line suggests to me that a majority of the Supreme Court would find no such duty here, a prediction on that score is unnecessary because Clark’s interrogator chose to do just that: he provided an opportunity for reflection and sought clarification. Even if this case be viewed as distinguishable from Davis, nothing in the Supreme Court case law suggests to me that…