Argued and Submitted, San Francisco, California:
March 18, 2014.
On Remand from the United States Supreme Court. D.C. No. 2:05-cv-01221-JAM-GGH.
On remand from the United States Supreme Court, the en banc court reversed the district court's judgment denying Tio Dinero Sessoms's 28 U.S.C. § 2254 habeas corpus petition challenging his conviction of murder, robbery, and burglary, and remanded with instructions to grant a conditional writ of habeas corpus with directions that the State of California retry Sessoms within a reasonable time or release him.
The en banc court held that the California Court of Appeal's conclusion that Sessoms did not make an unequivocal or unambiguous request for an attorney as required under Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), was an unreasonable application of Supreme Court precedent as it existed at the time of the Court of Appeal's determination.
The en banc court reconsidered the case in light of Salinas v. Texas, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), which involved a noncustodial interrogation, and which suggests that Davis 's requirement of an unambiguous invocation of a right to counsel applies to pre- Miranda statements. The en banc court observed that this case, in contrast, involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them, but nevertheless assumed that the clear invocation requirement of Davis applies to Sessoms. With this requirement clearly in mind, the en banc court held that, under the circumstances, a reasonable law enforcement officer would have understood Sessoms's statements as an unambiguous request for counsel, which should have cut off any further questioning under clear Supreme Court precedent.
Reluctantly dissenting, Chief Judge Kozinski wrote that what the court 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.
Dissenting, Judge Callahan wrote separately to stress that she reads the Supreme Court's remand as precluding the majority's conclusion that Sessoms's comments were so unambiguous as to render the California Court of Appeal's opinion unreasonable.
Judge Murguia, joined by Chief Judge Kozinski and Judges Silverman, Callahan, and Ikuta, dissented. Judge Murguia could not say, under the deference mandated by the AEDPA, that it was objectively unreasonable for the California Court of Appeal to hold that a police officer could have interpreted Sessoms's statement as merely a possible request for a lawyer, which would not require the officer to stop the interrogation.
Eric Weaver (argued), Albany, California, for Petitioner-Appellant.
Jeffrey Firestone (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; and Charles A. French, Supervising Deputy Attorney General, Sacramento, California, for Respondent-Appellee.
Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley Austin LLP, Washington, D.C.; Mark E. Haddad and Douglas A. Axel, Sidley Austin LLP, Los Angeles, California; and David M. Porter, Office of the Federal Defender, Sacramento, California, for Amicus Curiae National Association of Criminal Defense Lawyers.
Before: Alex Kozinski, Chief Judge, and Mary M. Schroeder, Barry G. Silverman, M. Margaret McKeown,[*] Kim McLane Wardlaw, Raymond C. Fisher, Richard A. Paez, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta and Mary H. Murguia, Circuit Judges. Opinion by Judge McKeown; Dissent by Chief Judge Kozinski; Dissent by Judge Callahan; Dissent by Judge Murguia.
McKEOWN, Circuit Judge.
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."  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 turned himself in to the police. Before doing so, Sessoms's father ...