dissenting:

I respectfully dissent.

The state courts did not unreasonably apply clearly established federal law. “[C]learly established Federal law under [ 28 U.S.C. § 2254 (d)(1) ] is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003). In Lockyer , the Supreme Court held, “[a] state court decision is contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 73 , 123 S.Ct. 1166 (citations omitted).

Here, the state courts relied on Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), in determining that Arnold did not unambiguously invoke his right to silence. Even though Davis deals with invoking the right to counsel, the government posits that it should extend to cases involving the right to silence because there appears to be no Supreme Court decision directly on point regarding the right to silence. Although the Ninth Circuit left this question open in Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996), several of our sister circuits have extended Davis to cases involving the right to silence. 1

Davis is instructive here because the factual circumstances in this case are similar. In both cases, the question is whether the suspect invoked Fifth Amendment rights such that police were required to stop their custodial interrogation. The majority cites no Supreme Court decision directly on point regarding invocation of the right to silence. Accordingly, the state courts’ reliance on Davis for guidance in this case was reasonable. This is all that needs to be decided under the applicable AEDPA standard.

I would also find that the state courts’ determination that Arnold did not unambiguously invoke the right to silence was objectively reasonable in light of the evidence presented. Arnold’s “no comment” responses were objectively ambiguous. Indeed, when the interrogating officers asked Arnold on tape whether he had changed his mind about giving a statement, instead of simply answering “yes,” he responded “no comment.” This response is ambiguous, much like Davis’s comment, “Maybe I should talk to a lawyer.” Davis, 512 U.S. at 455 , 114 S.Ct. 2350 .

In determining whether Fifth Amendment rights were invoked, “likelihood” is not enough. Id. at 459 , 114 S.Ct. 2350 . A “law enforcement officer may continue questioning until and unless the suspect clearly requests” to invoke his Miranda rights. Id. at 461 , 86 S.Ct. 1602 . “The *871 Edwards rule seeks to ‘maintain a delicate balance between ensuring that suspects are properly insulated against police overreaching while allowing the law enforcement community to perform its duties effectively.’ ” Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir.2003), cert. denied, 540 U.S. 968 , 124 S.Ct. 446 , 157 L.Ed.2d 313 (2003) (quoting Smith v. Endell, 860 F.2d 1528, 1537 (9th Cir.1988)). 2 Here, the state courts reasonably determined that Arnold did not unequivocally invoke his Fifth Amendment right to silence.

Even if the state courts erred, however, such error was harmless under Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). The jury received the following evidence against Arnold: (1) Arnold’s fingerprints were found on the window of the cashier’s booth where the attempted robbery occurred; (2) Arnold told the primary interrogator, Sergeant Aguirre, (before being informed of the fingerprint evidence) that he had never been to the station “in his entire life,” despite multiple attempts to adduce from him possible reasons why he might have been there; (3) Williams, who was with Arnold on the night in question, had already been convicted and had served time for the attempted robbery by the time he testified (i.e., he had nothing to lose by implicating himself and another mysterious participant instead of Arnold); and, (4) Williams testified that (a) he was dating Arnold’s sister, (b) he did not want to testify against Arnold, and (c) Arnold approached the booth and tried to buy cigarettes on the night of the attempted robbery. Finally, when Arnold and Williams were arrested just hours after the attempted robbery, officers found a gun that was ballistically matched to the gun fired during the incident.

The majority suggests that whether Arnold’s tape-recorded statement had a “substantial and injurious effect” on the jury’s verdict depends in part on how much weight the jury gave the adoptive admission instruction. Arnold’s defense, however, did not rest solely on his silence — he produced three witnesses who said he was not at the gas station when the attempted robbery occurred. Nevertheless, his defense was seriously undermined by the fact that Williams changed his story twice after telling Sergeant Aguirre that Arnold had actively planned and participated in the robbery, Williams was an admitted heroin addict, and Williams admitted that he had lied to the police regarding the events in question. Additionally, there was no evidence calling into question Sergeant Aguirre’s testimony regarding the statement that Arnold voluntarily made before officers turned on the tape recorder.

The evidence to convict was overwhelming, notwithstanding Arnold’s “no comment” responses. The error, if any, in admitting the tape, was unlikely to have had a substantial and injurious effect or influence in determining the jury’s verdict. For these reasons, I would affirm the district court’s denial of habeas relief.

. E.g., James v. Marshall, 322 F.3d 103, 107 (1st Cir.2003); Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir.2001); United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir.2000); United States v. Mikell, 102 F.3d 470, 476-77 (11th Cir.1996); United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir.), vacated on other grounds by Mills v. United States, 519 U.S. 990 , 117 S.Ct. 478 , 136 L.Ed.2d 373 (1996).

. In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the Supreme Court held that if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Id. at 484-85 , 101 S.Ct. 1880 .