Sessoms v Runnels, No. 08-17790 (6-3-11)(Tallman with Rawlinson; dissent by B. Fletcher).

This is a very disturbing opinion concerning a Miranda request. "Get me a lawyer" is found, under AEDPA, review, to not really mean "I want a lawyer." The petitioner has been convicted of felony murder in California. He now argues in habeas that his request to "get me a lawyer" should have stopped questioning. It did not; nor his statement that his father was looking for counsel for him; nor the fact that five days earlier he had, in fact, invoked to different police under a different crime. In the second interview, after petitioner asked about counsel, the police said he would record the interview to allay any concerns, and then, after setting up the recorder, stated that the petitioner would have to assert the claim. The police then helpfully explained that the co-defendants surprisingly did not assert their rights; and that attorneys sometimes advised clients not to make statements. The police then read the Miranda rights and the petitioner made statements. Challenging them here, the 9th (Tallman and Rawlinson) look through an AEDPA deferential lens, and upholds the denial, in a close question, because the state court's decision was not unreasonable as an unclear request. To the majority, Davis (where Souter wrote that a defendant did not have to speak with the discrimination of an Oxford Don) did not apply (!) because it involved post-Miranda questions and here the question or statement was pre-Miranda. The 9th also found that the statement could be construed as equivocal(!). The 9th deferred to the state's finding that request was not a request for a lawyer, but rather a statement of what his father advised him (tell them to get you a lawyer) and was not unequivocal. The 9th also held that the police were not limited to clarifying questions after the statement, because Davis, here, does not apply. Dissenting, B. Fletcher argues that the deferential lens used by the majority distorts Miranda and Edwards. She accuses the majority of waving a wand to make Miranda disappear. This is a deeply disturbing opinion.