NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH KON,

Petitioner

- Appellee,

v. MARTIN GAMBOA,

Respondent

- Appellant. No. 21

- 55430
D.C. No. 8:16

- cv - 00397

- SVW

- SK

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted February 7, 2022 Pasadena, California Before: BERZON and WATFORD, Circuit Judges, and WHALEY, * * Distri ct Judge. Acting Warden Martin Gamboa (“Warden”) appeals the district court’s grant of habeas corpus relief. We have jurisdiction under 28 U.S.C. § 2253(a). We review de novo a district court’s decision to grant or deny a petition for writ of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. 

# FILED

FEB 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

habeas corpu s. Lambert v. Blodgett , 393 F.3d 943, 964 (9th Cir. 2004). “Factual findings and credibility determinations made by the district court in the context of granting or denying the petition are reviewed for clear error.” Id. We affirm the district court ’s gran t of habeas relief. 1. As found by the district court, Petitioner Kenneth Kon exhausted his claim that he invoked his right to remain silent with the state courts. To exhaust a claim under 28 U.S.C. § 2254(b)(1)(A) , a petitioner must “present both the fa ctual and legal basis for the claim to the state court.” Robinson v. Schriro , 595 F.3d 1086, 1101 (9th Cir. 2010). To do so, the petitioner must “ reference specific provisions of the federal constitution or cite to federal case law and

. . . provide a

stat ement of the facts that entitle him to relief. ” Id. For the “purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions.” Sanders v. Ryder , 342 F.3d 991, 999 (9th Cir. 2003). Even though Kon put more emphasis on h is alleged right

- to

- counsel violation, he nonetheless exhausted his right

- to

- silence claim . He stat ed the legal theory of his claim

— a violation of Miranda v. Arizona , 384 U.S. 436 (1966)

— and cited to People v. Neal , 31 Cal. 4th 63 (2003), a case that concerned the right to remain silent. Next, he asserted the factual basis for his claim by circling the statement on the first page
of E xhibit 1 to his state habeas petition “Don’t talk , t hat’s all I have to say

. ” This3

conclusion is bolstered by our holdin g that pro se petitions are to be liberally construed. Sanders , 342 F.3d at 999. Because we conclude that Kon’s right to silence claim was exhausted, we
need not address his alternative argument that the Warden waived the exhaustion requirement. 2. This Court’s remand order did not confine the district court to reviewing only one of the alleged Fifth Amendment violations. We remanded for the district court to determine “whether [Kon’s] statements to the police were admitted in violation of his Fifth Amendment rights under Miranda .” Kon v. Sherman , 802 F. App’x 240, 241 (9th Cir. 2020 ). The district court properly considered the Warden’s argument to limit the scope of remand and did not err by addressing all three purported Miranda invocations. 3. The district court did not err by concluding that Kon’s statement constituted an unambigu ous invocation of the right to remain silent. “[ W]e review the district court’s factual findings concerning the words a defendant used to
invoke his Miranda rights for clear error and whether the words actually invoked those rights de novo .” United States v. Rodriguez , 518 F.3d 1072, 1076 (9th Cir. 2008). If a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”
Miranda , 384 U.S. at 473

– 74. To take effect, the invocation must be unambiguous.4

Jones v. Harrington , 829 F. 3d 1128, 1137 (9th Cir. 2016). A suspect “need not speak with the discrimination of an Oxford don. . . . The words of the request will be understood as ordinary people would understand them.” Arnold v. Runnels , 421 F.3d 859, 865 (9th Cir. 2005) (internal q uotation marks omitted) ( citations omitted). It is not dispositive whether the invocation occurs before or after the suspect receives a Miranda advisement. Id. (citing United States v. Bushyhead , 270 F.3d 905 , 912 (9th Cir. 2001) )

. Kon’s statement, “So tir ed. That’s all I have to say. Y’know,” constituted an unambiguous invocation of his right to remain silent.
See id. (nothing more explicit or more technically

- worded than “I have nothing to say” is required for a suspect to invoke his right to silence). We affirm the district
court’s conclusion that Kon invoked his right to remain silent.
A FFIRMED .