Sessoms

Order; Opinion by Judge McKEOWN; Dissent by Chief Judge KOZINSKI; Dissent by Judge CALLAHAN; Dissent by Judge MURGUIA.

ORDER

The opinion filed on September 22, 2014, is amended. The amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for rehearing.

The petition for rehearing is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

Opinion by McKEOWN, Circuit Judge, joined by SCHROEDER, WARDLAW, FISHER, PAEZ and M. SMITH, Circuit Judges:

An American poet wrote more than 100 years ago: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” 1 When a suspect says “give me a lawyer,” that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal — it is not a maybe or a perhaps — it is an invocation of the Fifth Amendment right to counsel.

In late 1999, a naive and relatively uneducated nineteen-year-old Tio Sessoms sat alone in an eight-by-ten foot interrogation room. Four days earlier, on the advice of his father, Sessoms had…

reluctantly dissenting:

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for — and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love — or even understand— and perhaps not even most of them. I am dismayed that Sessoms’s fate — whether he will spend his remaining days in prison, half a century or more caged like an animal — turns on such esotérica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, — U.S.…

dissenting:

This case is before our en banc panel for a second time after the Supreme Court vacated our prior opinion and remanded for further consideration in light of Salinas v. Texas, — U.S. -, 138 S.Ct. 2174 , 186 L.Ed.2d 376 (2013). I concur in Judge Murguia’s dissent. I write separately to stress that I read the Supreme Court’s remand for further consideration in light of Salinas as precluding the majority’s conclusion that Sessoms’s comments were so unambiguous as to render the California Court of Appeal’s opinion unreasonable.

Although Salinas concerned the right to remain silent rather than the right to counsel, Justice Alito’s plurality opinion in Salinas sets forth a controlling perspective. 1 He first reiterated that “[t]he privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.”’ 133 S.Ct. at 2179 (quoting Garner v. United States, 424 U.S. 648 , 658 n. 11, 96 S.Ct. 1178 , 47 L.Ed.2d 370 ). He explained that the requirement that the privilege be clearly invoked:

133 S.Ct. at 2179 . Justice Alito further elaborated that “[a] witness’ constitutional right to refuse to answer questions…

with whom KOZINSKI, Chief Judge, and SILVERMAN, CALLAHAN, and IKUTA, Circuit Judges, join, dissenting:

When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it severely restricted the power of federal courts to provide relief to habeas petitioners convicted in state court, even when we might believe that the conviction was the result of unlawful proceedings. The statutory provision at issue here, 28 U.S.C. § 2254 (d), provides that

Our inquiry falls under § 2254(d)(1); specifically, we must consider whether the California Court of Appeal “unreasonably] appli[ed]” the Supreme Court’s holding in *636 Davis v. United States, 512 U.S. 452, 459 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994). Davis held that a suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney” before the interrogating officers are required to stop questioning the suspect under the Supreme Court’s rule in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981). 1 Under AEDPA, this inquiry is much narrower than simply…