Cobb

dissenting:

I dissent.

I would hold that the California appellate court’s conclusion that Pablo Cobb did not unambiguously invoke his Fifth Amendment right to counsel “involved an unreasonable application of ... clearly established Federal law.” 28 U.S.C. § 2254 (d). Accordingly, I would reverse the district court’s denial of Cobb’s petition for writ of habeas corpus and grant the writ.

“[A] suspect [in custody] who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present.” Davis v. United States, 512 U.S. 452, 458 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994). The suspect’s request for counsel must be unambiguous. Id. at 459 , 114 S.Ct. 2350 . In other words, it must be “sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. Perhaps obviously, the request must also be heard by an officer: “[t]o invoke a right to counsel, the suspect himself must request an attorney and a representative of the state must hear that request.” Hyatt v. Branker, 569 F.3d 162, 169 (4th Cir.2009) (citing Davis, 512 U.S. at 458-59 , *209 114 S.Ct. 2350 )…

MEMORANDUM *

Pablo Cobb appeals the district court’s order denying his petition for a writ of habeas corpus. We affirm. On the basis of the record before us, we cannot say that the California Court of Appeal acted contrary to clearly established federal law in concluding that Cobb’s confession was admissible. 1 See 28 U.S.C. § 2254 (d).

Although police ignored Cobb’s initial invocation of his right to silence, the dialogue that eventually led to Cobb’s confession was reinitiated by Cobb himself at the suggestion of — and after conferring *208 with — his girlfriend. The failure to suppress did not violate clearly established law in light of the circumstances surrounding Cobb’s reinitiation and his subsequent waiver of his right to silence. Cobb cites no Supreme Court precedent which supports his position, and we have found none.

Nor did the police violate Cobb’s right to counsel. Although authorities may have overheard Cobb privately telling his girlfriend that he wanted a lawyer, this statement did not amount to an unambiguous request for counsel. See Davis v. United States, 512 U.S. 452, 458-59 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994). This is especially true in light of the…