CHRISTEN, Circuit Judge:
At age 17, Darious Antoine Mays was charged with murdering Sheppard Scott as Scott sat in his car at a drive-through Jack In the Box restaurant. A detective conducted a custodial interrogation of Mays. During the interrogation, Mays requested a lawyer. Instead of ceasing the interrogation, the detective continued to question Mays and ultimately administered a fake polygraph test. When confronted with fabricated test results, Mays admitted to being present at the scene and to being one of two individuals depicted in a security camera photograph of the crime scene.
The state trial court denied Mays's motion to exclude his statements. Mays was convicted of first-degree murder and sentenced to life without possibility of parole. The California Court of Appeal affirmed Mays's conviction, reasoning that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not violated during the interrogation, and that even if they were, the admission of his statements at trial was harmless beyond a reasonable doubt.
Mays petitioned the federal district court for habeas relief under 28 U.S.C. § 2254. The district court concluded the California Court of Appeal's determination that no Miranda violation occurred was an unreasonable application of Supreme Court precedent, but also decided that the admission of the statements was not prejudicial. We agree with the district court's reasoning and affirm the denial of Mays's habeas petition.
In the early morning hours of January 24, 2005, Sheppard Scott and his girlfriend,
Mays was arrested in connection with the crime on the afternoon of February 9, 2005. He was taken to the police station and questioned by Detective Charles Husted. The interview was videotaped.
At the outset of the interview, Detective Husted read Mays his Miranda rights and asked if Mays understood each right. Mays's responses were affirmative or inaudible. Detective Husted then asked Mays if he knew why he was being detained. Mays responded: "Because of the shit that seen on the news. . . . My face is wanted for questioning for a murder." But Mays denied having any involvement in the murder.
Detective Husted told Mays that witnesses had identified him, and presented Mays with a photograph from an AM/PM surveillance video of an individual wearing a gray sweatshirt. Mays denied being depicted in the photo. He argued his nose was shorter, and his only gray sweatshirt had "South Pole" written on it. Detective Husted left the room and returned with a different photo. Mays admitted to being the person depicted in this photo, and Detective Husted told Mays this photo was merely a photocopy of the first. Detective Husted told Mays to stop lying. Mays responded: "Can you — can you give me a lie detector test? I guarantee you I'll pass a hundred percent." Detective Husted expressed doubt that Mays could pass a polygraph test, and then the following exchange ensued:
Detective Husted returned and asked yet more questions. Mays continued to deny involvement in the crime and again repeated his request for a lie detector test. Detective Husted left and returned, and Mays repeated his request for a phone call. Detective Husted told Mays his mom might not be available. Mays responded: "Can I — can I call my grandma at least? I need — I need to call somebody." Detective Husted said he was trying to get someone to administer a polygraph and could "[o]nly do one thing at a time."
As it turns out, no polygraph examiner was available and Detective Husted's supervisor authorized a "mock polygraph" test. "[T]he police placed on [Mays's] body patches connected to wires, pretended to administer a lie detector test, fabricated written test results, showed [Mays] the fake results, and told him the results showed he failed the test." Id. at 226. Mays expressed skepticism, and Detective Husted suggested that perhaps Mays had been present at the crime and felt responsible. Id. At this point, Mays changed his story and made various inculpatory statements. The California Court of Appeal summarized:
Id. During questioning, Mays incorrectly identified the passenger in the car as a male. Eventually, Detective Husted revealed that three witnesses had identified the person in gray as the shooter. Mays broke down crying, continued to insist he did not shoot Scott, and asked for his mother. He said he was going to kill himself. The interrogation ended when Mays complained of chest pains and said he was born with a hole in his heart.
Mays was charged with first-degree murder, with a special circumstance of lying-in-wait and an enhancement for personal discharge of a firearm causing death. Id. at 222-23. Before trial, Mays moved in limine to exclude the inculpatory statements he made to Detective Husted on the ground that they were obtained in violation of Miranda. The trial court denied the motion.
The California Court of Appeal described the evidence adduced at Mays's trial as follows:
Id. at 223-24 (footnotes omitted). The California Court of Appeal then described the testimony of various additional witnesses who happened to be present that morning. The witnesses supported Narcisse's testimony that the shooter was the male in the gray sweatshirt, but they were either unable to identify the shooter or were unsure if it was Mays. See id. at 224-25. The California Court of Appeal continued:
Id. at 225 (footnote omitted). After again describing uncertain or inconsistent witness testimony regarding the shooter's identity, id. at 226, the Court of Appeal continued:
Id. at 226-27 (footnote omitted). The California Court of Appeal also noted that the police seized a gray hooded sweatshirt with "South Pole" lettering at the time they arrested Mays, but stated "the People acknowledge defendant's South Pole sweatshirt is not the sweatshirt depicted in the AM/PM photos." Id. at 225 n. 4.
The jury convicted Mays of first-degree murder and found true the special circumstance and firearm enhancement. Id. at 227. The trial court sentenced Mays to life without possibility of parole for the special circumstance murder, plus a consecutive term of 25 years to life for the firearm enhancement. Id. Mays appealed, arguing, among other things, that the trial court erred by admitting the inculpatory statements he made to Detective Husted because they were obtained in violation of Miranda. Id. at 222-23.
The California Court of Appeal affirmed Mays's conviction. The court ruled there was no Miranda violation because Mays's request for an attorney was equivocal. The court also ruled that "[e]ven assuming for the sake of argument that a Miranda violation occurred, it would not require reversal of the judgment" because the error "was harmless beyond a reasonable doubt." The California Supreme Court denied Mays's petition for review. Mays also raised his Miranda claims in a petition for a writ of habeas corpus filed in California state court. That petition was also denied.
Mays filed a petition for a writ of habeas corpus in federal district court on February 23, 2010. The district court held the California Court of Appeal's ruling that no Miranda violation occurred was an unreasonable application of clearly established federal law. It also concluded that "the state court's rejection of the [Miranda] claim should stand because the state court's finding of no prejudice is a reasonable application of clearly established Supreme Court precedent." It denied the petition but granted a certificate of appealability on the Miranda claim.
We have jurisdiction under 28 U.S.C. § 2253. We review petition de novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir.2008). We examine the last reasoned state-court decision, which in this case is the opinion of the California Court of Appeal. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). On habeas review, the Antiterrorism and Effective Death Penalty Act (AEDPA) prevents us from granting Mays's petition unless the California Court of Appeal's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
"`Clearly established Federal law' . . . 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,
In Miranda v. Arizona, the Supreme Court held that a suspect in a custodial interrogation has the right to have counsel present, and police must explain this right to the suspect before questioning begins. 384 U.S. 436, 469-72, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The suspect may waive his right to counsel, "provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. 1602. Even after a waiver, however, if the suspect requests counsel, all questioning must cease. Id. at 444-45, 86 S.Ct. 1602; see also Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."). If the police do not cease questioning, the suspect's "postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request for counsel." Smith v. Illinois, 469 U.S. 91, 92, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam).
In Davis v. United States, the Supreme Court clarified that a suspect's request for counsel must be unambiguous. 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The Court explained that "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," cessation of questioning is not required. Id. For example, Davis's statement to agents—"Maybe I should talk to a lawyer"—was not an unambiguous and unequivocal invocation of the right to counsel, and therefore suppression of Davis's subsequent statements was not required. See id. at 462, 114 S.Ct. 2350.
Here, the California Court of Appeal correctly identified Davis as governing Supreme Court precedent. It explained that Mays's first mention of a lawyer was the statement: "Look. Can I — can I call my dad so I can have a lawyer come down `cause I'm — I'm telling you, I'm —." The state trial court found this first reference to a lawyer was "inaudible from the perspective of Detective Husted," and the California Court of Appeal held its "own viewing of the videotape satisfies us that it was
The court held that Mays's question— "[C]an you call him and have my lawyer come down here"—was equivocal. The court also observed that "less than a second" occurred between this question and Mays's subsequent statement—"I'm telling you — I'm telling you this is not me"—and noted that Detective Husted subsequently sought "to clarify whether [Mays] wanted to talk to his lawyer or whether he wanted the lie detector test that he kept demanding."
Like the district court, we conclude that the California Court of Appeal applied Miranda and its progeny in an objectively unreasonable manner. Despite Detective Husted's response, "Call who?," we accept as true the state court's factual finding that Detective Husted did not hear Mays's first reference to a lawyer. See 28 U.S.C. § 2254(e)(1). "We, therefore, do not rely on th[is] statement[] as part of the context relevant to whether a reasonable law enforcement officer would have understood [Mays's] statements as unambiguous requests for counsel." Sessoms v. Grounds, 776 F.3d 615, 618 n. 3 (9th Cir.2015) (en banc). We focus instead on Mays's subsequent statement: "My — my step-dad got a lawyer for me. . . . I'm going to — can — can you call him and have my lawyer come down here?"
Contrary to the California Court of Appeal's ruling, there is nothing ambiguous or equivocal about this statement: it is plainly a request for a lawyer. A reasonable officer would have understood that Mays's father had retained a lawyer, and Mays wanted the lawyer to be sent to the interrogation to represent him.
We recently addressed a similar fact pattern in Sessoms v. Grounds, where the defendant made two statements: (1) "There wouldn't be any possible way that I could have a — a lawyer present while we do this?"; and (2) "Yeah, that's what my dad asked me to ask you guys . . . uh, give me a lawyer." Id. at 617-18. We found each to be an unambiguous request for counsel. See id. at 626-27. Of particular relevance here, we explained with regard to the first statement:
Id. at 626. Like Sessoms, Mays asked for a lawyer. Also like Sessoms, Mays phrased his request deferentially but unambiguously.
The State argues that even if Mays's request for an attorney was unambiguous, the California Court of Appeal reasonably concluded that his subsequent statement—"I'm telling you-I'm telling you this is not me"—rendered his request equivocal. But the California Court of
Once Mays invoked his right to counsel, Detective Husted failed to immediately cease the interrogation as he was required to do under clearly established Supreme Court precedent.
We conclude the California Court of Appeal unreasonably applied Miranda and Davis when it concluded Mays's invocation of the right to counsel was ambiguous or equivocal. We also conclude that the California Court of Appeal contravened or unreasonably applied Smith when it used Mays's post-invocation responses to cast doubt on the clarity of his request for counsel.
Although we conclude Mays's inculpatory statements to Detective Husted were obtained in violation of Miranda and therefore improperly admitted at trial, we grant the writ only if the error was not harmless. See Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Sessoms, 776 F.3d 615, 629 (9th Cir.2015) (en banc).
On direct review, reversal is not required if the prosecution can show the error "was harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 295-96, 111 S.Ct. 1246 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The California Court of Appeal applied this standard and concluded that the admission of Mays's inculpatory statements was harmless beyond a
On collateral review, relief is appropriate "if the prosecution cannot demonstrate harmlessness," Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2197, 192 L.Ed.2d 323 (2015), but an error is harmless on collateral review unless it results in "actual prejudice," id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). "Under th[e] [Brecht] test [for actual prejudice], relief is proper only if the federal court has `grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 2197-98 (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). Because it is more stringent, the Brecht test "subsumes" the AEDPA/Chapman standard for review of a state court determination of the harmlessness of a constitutional violation. Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). A federal habeas court therefore need not formally apply both the Brecht test and the AEDPA standard; it is sufficient to apply Brecht alone. Id. A determination that the error resulted in "actual prejudice," Brecht, 507 U.S. at 637, 113 S.Ct. 1710, necessarily means that the state court's harmlessness determination was not merely incorrect, but objectively unreasonable, Davis, 135 S.Ct. at 2198-99, 135 S.Ct. 2187. A separate AEDPA/Chapman determination is not required.
Mays argues that his trial testimony, and his inculpatory statements that could have been used to impeach his trial testimony, should not be part of the harmlessness calculus because he might not have testified had he not been obligated to explain his improperly-admitted statements. In Harrison v. United States, the Supreme Court held that when a defendant's out-of-court confession is improperly admitted into evidence at his trial, the defendant's trial testimony may not be used to support defendant's conviction unless the prosecution can show the confession did not induce the testimony. 392 U.S. 219, 220-26, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); see also Lujan v. Garcia, 734 F.3d 917, 930 (9th Cir.2013) ("Under the Harrison exclusionary rule, when a criminal defendant's trial testimony is induced by the erroneous admission of his out-of-court confession into evidence as part of the government's case-in-chief, that trial testimony cannot be introduced in a subsequent prosecution, nor can it be used to support the initial conviction on harmless error review, because to do so would perpetuate the underlying constitutional error."). The California Court of Appeal concluded Mays "would have testified even had his interrogation statements not been admitted in evidence, because he had to deny the strong independent evidence linking him and his gray sweatshirt to the crime." But it is unclear whether the court placed the burden on the government, as it was required to do under Harrison.
We need not resolve this question, however, because the state court's alternative holding that the jury would have convicted Mays even without his inculpatory admissions was not unreasonable within the meaning of AEDPA. We acknowledge that although Mays's statements were not a full confession, they were very inculpatory: Mays admitted to being the person in the gray sweatshirt at the scene of the crime, a fact key to the prosecution's case,
But as the California Court of Appeal pointed out, there was another piece of critical evidence identifying Mays as the person in gray at the crime scene: Detective Husted's testimony concerning Tamara Schallenberg's audiotaped statements to him. As explained, Detective Husted testified that when he showed the AM/PM photo to Schallenberg—a neighbor who considered Mays like a son—Schallenberg identified Mays as the person in the gray sweatshirt "without hesitation." Mays, 95 Cal.Rptr.3d at 225. When asked how she knew, "she said she knew because she knows him." Id. Although Schallenberg mistakenly believed the gray sweatshirt depicted in the photo to be Mays's "South Pole" sweatshirt, her statements make clear she based her identification not on the sweatshirt but on her personal familiarity with Mays—a familiarity other witnesses lacked. We agree with the California Court of Appeal that, although Schallenberg in her conditional examination "tried to recant the identification when she realized its effect on [Mays], ... [this] does not diminish the impact of her original statement." Additionally, in both her original statement and in her conditional examination, Schallenberg said Mays told her he was present at the crime scene.
In light of Schallenberg's statements, the California Court of Appeal's harmlessness determination was not objectively unreasonable. We hold, therefore, that under the deferential AEDPA standard of review applicable to this case, Mays is not entitled to relief on his habeas petition.
The facts of this case are troubling. A 17-year-old with minimal education invoked his right to counsel while being questioned in connection with a murder. Instead of honoring Mays's request as required under Miranda and its progeny, the police detective continued his questioning unabated, administered a fake polygraph examination, and presented Mays with fabricated results. Mays went on to make highly incriminating statements that were used against him at trial. But because the state court's harmlessness determination was not objectively unreasonable, we affirm the district court order denying Mays's habeas petition.