Luna v. Lamarque , 400 F. App'x 169 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS OCT 15 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO UR T OF AP PE A LS
JOSE LUIS LUNA, No. 06-16823
Petitioner - Appellant, D.C. No. CV-02-04045-SBA
Northern District of California,
v. Oaµland
ANTHONY LAMARÏUE,
ORDER WITHDRAWING
Respondent - Appellee. DISPOSITION AND DENYING
REHEARING
Before: HUG, W. FLETCHER and CLIFTON, Circuit Judges.
The Memorandum disposition filed April 28, 2008 is withdrawn and
replaced by the attached Memorandum disposition.
With the filing of this new disposition, the panel has voted unanimously to
deny the petition for rehearing. Judge Fletcher and Clifton have voted to deny the
petition for rehearing en banc, and Judge Hug so recommends.
The full court has been advised of the petition for rehearing en banc and no
judge of the court has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en banc, filed May
12, 2008, are DENIED.
FILED
NOT FOR PUBLICATION OCT 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
JOSE LUIS LUNA, No. 06-16823
Petitioner - Appellant, D.C. No. CV-02-04045-SBA
v.
MEMORANDUM *
ANTHONY LAMARÏUE,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted October 19, 2007
San Francisco, California
Submission Withdrawn October 23, 2007
Resubmitted April 22, 2008
Before: HUG, W. FLETCHER, and CLIFTON, Circuit Judges.
The issue in this case is whether all or part of a tape-recorded interrogation
was properly admitted into evidence at trial. In 2000, Jose Luis Luna was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentenced to 170 years to life in prison based on his conviction in California state
court for several offenses committed against a minor over a period of about two
weeµs. He was convicted on sixteen counts and acquitted of the other charges. He
was given consecutive 15-years-to-life terms for each of six acts and consecutive
eight-year determinate sentences for each of ten acts. See Cal. Penal Code yy
269(a)(4)-(5), 288(b)(1). Even with the admission of the entire disputed
interrogation, the evidence against Luna was somewhat equivocal. The prosecutor
admitted to the jury, in final argument, that the detective who had conducted the
interrogation (and who had also interviewed the minor) believed that the evidence
did not warrant prosecution of Luna.
Luna appealed, alleging Miranda and Apprendi violations. Miranda v.
Arizona, 384 U.S. 436 (1966); Apprendi v. New Jersey, 530 U.S. 466 (2000). The
California Court of Appeal modified Luna's restitution fine but otherwise affirmed
in an unpublished opinion. The California Supreme Court denied Luna's petition
for review. Luna filed a federal habeas petition in 2002. The district court denied
the petition in 2006. We review that decision de novo. Taylor v. Maddox, 366
F.3d 992, 997 (9th Cir. 2004).
Luna contends that the trial court should have excluded all of the statements
he made during the interrogation. We disagree. Applying the 'highly deferential'
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review required under the Antiterrorism and Effective Death Penalty Act, 28
U.S.C. y 2254(d) ('AEDPA'), we cannot conclude that the California Court of
Appeal unreasonably applied Miranda and its progeny in holding that Luna failed
to unambiguously invoµe his right to counsel during the early parts of his
interrogation. See Davis v. United States, 512 U.S. 452, 459 (1994); Clarµ v.
Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). We conclude, however, that in a
later part of the interrogation Luna did adequately invoµe his right to counsel.
Respondent argues that Luna did not exhaust his federal claims that are
based on his requests for counsel during later parts of the interrogation. We agree
with the district court that Luna successfully exhausted these claims. In the state
proceedings, it was clear that Luna was asserting that his Miranda rights had been
violated. Cf. Anderson v. Harless, 459 U.S. 4, 6-7 (1982) (holding claim
unexhausted when federal constitutional basis of claim was unclear). Luna's state
court brief referred to more than one point during the interrogation at which
questioning should have ceased. The brief also included the rule from Miranda
that invocations can come at any time during an interrogation. The state court thus
had 'a fair opportunity to act on' all of Luna's Miranda right to counsel claims.
O'Sullivan v. Boercµel, 526 U.S. 838, 844 (1999); see also Arnold v. Runnels, 421
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F.3d 859, 864-65 (9th Cir. 2005) (applying Miranda on AEDPA habeas review to
statements ignored by state court).
Because the state court did not address Luna's claims that he adequately
asserted his right to counsel later in his interrogation, we review those claims de
novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (examining prejudice
aspect of ineffective assistance of counsel claim de novo because state court only
considered adequacy of representation); Lewis v. Mayle, 391 F.3d 989, 996 (9th
Cir. 2004) (reviewing de novo the waiver aspect of Sixth Amendment claim where
state court reached only conflict-of-interest aspect).
Luna made repeated references to a lawyer during his interrogation. The
two references addressed by the Court of Appeal were the following. Almost
immediately after the Miranda warning was read to him, Luna said 'I should
probably get a lawyer, I guess.' Several minutes later, Luna said, 'Ya, we can talµ.
It looµs liµe I got nothin' else to do. In other words, I'll just wait 'til I get booµed
and wait 'til I'm charged or whatever, you µnow whatever or get a lawyer.'
Luna made two later references to a lawyer, neither of which was considered
by the Court of Appeal. First, he said, 'So I don't understand if I need to get a
lawyer.' Second, he asµed the interrogating detective, 'Are you my lawyerá' She
responded that she was not his lawyer. Luna then stated, 'Well it sound [pause] . .
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. The way it's goin' it sounds liµe I need a lawyer. [pause] And I need help.'1
While the first of these two statements is ambiguous, the second is not. The
second statement contains none of the traditionally ambiguous words such as
'maybe,' 'might,' or 'I thinµ.' See Arnold, 421 F.3d at 865-66. Indeed, Luna
explicitly said 'And I need help' immediately after expressing a need for a lawyer.
The detective did not stop her interrogation but rather continued to question Luna.
The Supreme Court has provided an objective test for invocation of the right
to counsel in Davis v. United States, 512 U.S. 452 (1994). The suspect in Davis
explicitly waived his right to counsel, both orally and in writing, before the
interrogation began. After an hour and a half, he said, 'Maybe I should talµ to a
lawyer.' The Court held that, under the circumstances, this statement was not an
unambiguous invocation of the right to counsel:
Invocation of the Miranda right to counsel requires, at a minimum, some
statement that can reasonably be construed to be an expression of a desire
for the assistance of an attorney. . . . Although a suspect need not speaµ with
the discrimination of an Oxford don, . . . he 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.
1
The pauses indicated here are not indicated in the written transcript of the
interview, but they are apparent on the audiotape in the record.
5
Id. at 459 (emphasis added). The California Court of Appeal applied Davis in its
analysis of Luna's early, unsuccessful invocations of his right to counsel. In our
analysis of his later invocations, we also apply Davis.
We hold that in the circumstances of this interrogation, Luna's final
statement -- '[I]t sounds liµe I need a lawyer. And I need help' -- was a
sufficient invocation of his right to counsel. We have repeatedly recognized that
the circumstances in Davis included the suspect's explicit waiver of his right to
counsel at the beginning of the interrogation. See United States v. Rodriguez, 518
F.3d 1072, 1078 (9th Cir. 2008); United States v. Cheeley, 36 F.3d 1439, 1447-48
(9th Cir. 1994). The suspect in Davis explicitly waived his right to counsel and
later made a single statement that 'maybe' he should talµ to a lawyer. By contrast,
Luna never explicitly waived his right to counsel and repeatedly mentioned getting
a lawyer. In his final statement, Luna stated that 'it sounds liµe I need a lawyer,'
and stated, 'And I need help.' '[A] reasonable police officer in the circumstances
would understand the statement to be a request for an attorney.' Davis, 512 U.S. at
459. The trial court therefore erred in admitting any statements Luna made after
this invocation. Id. at 458.
Before maµing this final statement, and thereby adequately invoµing his
right to counsel, Luna had confessed to one of the instances of lewd conduct for
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which he was convicted. The admission of his confession was proper with respect
to that conduct, and his conviction for that conduct must stand. However, Luna's
incriminating statements regarding all of the other conduct for which he was
convicted came after he properly invoµed his right to counsel. It is clear from the
record that admission of his confession was not harmless error as to these
convictions. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). We therefore
affirm the district court as to Luna's conviction for one count of a lewd act on a
minor, for which he was sentenced to eight years in prison. However, we reverse
the district court as to Luna's conviction on the remaining counts. Our decision
obviates Luna's Apprendi challenge.
AFFIRMED in part and REVERSED in part. REMANDED to the district
court for further proceedings in accordance with this disposition. Petitioner
Appellant awarded costs on appeal.
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