FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEROME ALVIN ANDERSON,  No. 04-17237

Petitioner-Appellant, D.C. No.

v.  CV-00-002494-

WBS C.A. TERHUNE, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Chief Judge, Presiding

Submitted December 5, 2005*

San Francisco, California

Filed November 8, 2006

Before: Alex Kozinski and M. Margaret McKeown,

Circuit Judges, and Michael R. Hogan,** District Judge.

Opinion by Judge Hogan;

Dissent by Judge McKeown

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Michael R. Hogan, United States District Judge for

the District of Oregon, sitting by designation. 

18387
COUNSEL

Charles M. Bonneau, Sacramento, California, for the

petitioner-appellant. 

Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Mary Jo Graves, Senior Assistant

Attorney General; Stephen G. Herndon, Supervising Deputy

Attorney General; Brian R. Means, Supervising Deputy Attorney General; Craig S. Meyers, Deputy Attorney General; Sacramento, California, for the respondent-appellee. 

OPINION

HOGAN, District Judge: 

Petitioner, Jerome Alvin Anderson, appeals the district

court’s order denying his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Anderson challenges his conviction of special circumstance murder on the grounds that (1)

18390 ANDERSON v. TERHUNE
he was denied his constitutional right to remain silent; and (2)

he was denied due process by the introduction of his involuntary confession into evidence, and by the exclusion of evidence of coercion in the interrogation process.

Facts

Anderson and the victim, Robert Clark, were friends. On

the morning of July 9, 1997, a mutual acquaintance, Patricia

Kuykendall, discovered that her car had been stolen. Anderson visited Kuykendall’s apartment that day and informed

Kuykendall that Clark had a habit of borrowing cars, duplicating keys and stealing them later. 

Anderson left to bring Clark back to Kuykendall’s apartment. Kuykendall and petitioner confronted Clark about the

car. Clark denied involvement in the theft. As Kuykendall called the police, Clark left. About ten minutes later, Anderson

and Kuykendall’s roommate, Abe Santos, followed after

Clark. 

At about 12:30 or 1:00 p.m. on that afternoon, an employee

at Carl’s Jr. waited on three people in a white Ford Mustang

at the drive-through window. The employee identified Anderson as the driver. At about 1:05 p.m. witnesses noticed a

white Mustang with black trim and tinted windows on East

Stillwater Road. One witness specifically saw Anderson

standing behind the car and two other men standing by the

car. 

Clark’s body was discovered by the side of East Stillwater

Road at about 2:30 p.m. He had been shot in the head four

times. A methamphetamine pipe lay next to him, and a cigarette lighter was in his hand. Two pieces of hamburger and a

fresh cigarette butt were also near the body, as well as spent

.22 shell casings. Kuykendall’s key was discovered in Clark’s

pocket. 

ANDERSON v. TERHUNE 18391
A search of defendant’s car, a white Ford Mustang with

black trim and tinted windows, revealed that the tire tracks

found near the body were similar to the tire tracks it made.

The search also revealed two live .22 rim fire casings under

the seats similar to the spent casings found near Clark’s body.

An analysis of the clothes Anderson wore that day revealed

that three small blood stains on his shorts were consistent with

Clark’s DNA and inconsistent with Anderson’s or Santos’

DNA. 

Authorities took defendant into custody for a parole violation on July 12, 1997, at approximately 8:00 p.m. Officers

interviewed Anderson for approximately three and a half

hours. The interrogation included the following discussion

with Detective O’Connor: 

O’Connor: You act like you’re cryin’ like a baby,

an’ you can’t cry for someone that was

a no good . . . an’ you killed him for a

good reason. 

Anderson: No, way! No, way. I — You know

what, I don’t even wanna talk about this

no more. We can talk about it later or

whatever. I don’t want to talk about this

no more. That’s wrong. that’s wrong. 

O’Connor: Right now, you show your remorse. 

Anderson: I have nothin’ to worry about, nothin’ to

hide. That’s why I show no remorse.

Nothin’ to worry about, nothin’ to hide.

He was my friend, an’ there’s no way I

would do it. No, way I would do it. 

O’Connor: Were you high that day? 

Anderson: No, sir. I — probably was later on. Yes.

18392 ANDERSON v. TERHUNE
O’Connor: Did you have any dope with you that

. . . that day? 

Anderson: No, sir. 

O’Connor: No, dope at all? What do you smoke

with? 

Anderson: I smoke with my . . . my fingers. 

O’Connor: When you smoke your dope what do

you do with that? How do you smoke

that? 

Anderson: You smoke it with pipes and stuff like

that. 

O’Connor: Okay. What kind of pipes? 

Anderson: Lines. 

O’Connor: What kind of pipes? 

Anderson: N’ah . . . I would — I — 

O’Connor: Well, what kind of pipes? 

Anderson: Uh! I’m through with this. I’m through.

I wanna be taken into custody, with my

parole . . . 

O’Connor: Well, you already are. I wanna know

what kind of pipes you have? 

Anderson: I plead the fifth. 

O’Connor: Plead the fifth. What’s that? 

ANDERSON v. TERHUNE 18393
Anderson: No, you guys are wrong. You guys are

wrong. You guys have — I’ve tried to

tell you everything I know. As far as I

know, you guys are lying, uh, making

things up, extenuating and that’s not

right. It’s not right. 

O’Connor: We’re not makin’ anything up. 

Anderson: Sir, sure you are. 

O’Connor: What are we makin’ up? 

Anderson: You’re tellin’ me that I didn’t have

tears in my eyes. 

O’Connor: Yeah. 

Anderson: You’re tellin’ me, okay, that, uh, uh,

Abe said I kilt him. That’s a lie. 

Officers then showed Anderson a videotaped interview in

which Abe Santos confessed to watching defendant shoot

Clark. Defendant eventually confessed. 

Right to Remain Silent

Anderson asserts that he was denied his constitutional right

to remain silent during this exchange. The state court concluded that while the defendant articulated words that could,

in isolation, be viewed as an invocation of his right to remain

silent, given the totality of the circumstances, the defendant

did not intend to terminate the interview. The state appellate

court quoted the reasoning provided by the trial court: 

The interrogating officer did not continue or reinitiate the interview by posing the question: “plead the

fifth. What’s that?” The questions can reasonably be

18394 ANDERSON v. TERHUNE
characterized as a request for clarification or confirmation that the defendant wished to assert his right

to remain silent, and nothing more. What followed is

important to a determination of the question. Specifically, the defendant launched off on a discourse and,

ultimately engaged in a debate without making any

reference to an invocation of the right to remain

silent. It was the defendant, not the interrogators,

who continued the discussion. 

The appellate court further reasoned that “the interrogating

officer testified he believed that in saying, ‘I plead the fifth’

defendant was simply indicating an unwillingness to discuss

the details of his drug use, and not a desire to terminate the

interrogation.” 

[1] The state court thus determined that the detective’s further questioning was not inappropriate: 

In the present case, the defendant’s comments were

ambiguous in context because they could have been

interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to

continue the questioning at all. By asking defendant

what he meant by pleading the fifth, the officer

asked a legitimate clarifying question. 

If a suspect indicates in any manner during questioning that

he wishes to remain silent, interrogation must cease. Miranda

v. Arizona, 384 U.S. 436, 473-74, (1966). Any statement

taken after invocation of the privilege would constitute the

product of compulsion. Id. at 474. However, “when a suspect

makes an ambiguous or equivocal statement it will often be

good police practice for the interviewing officers to clarify

whether or not he actually wants [to invoke the privilege].”

Davis v. United States, 512 U.S. 452, 461 (1994) (holding that

the statement, “Maybe I should talk to a lawyer,” is not necessarily a request for counsel). Clarifying questions “minimize

ANDERSON v. TERHUNE 18395
the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement.” Id. “If the suspect’s statement is not

unambiguous or unequivocal . . . the officers have no obligation to stop questioning.” Id. at 461-62. 

[2] Here, Anderson arguably invoked his right to remain

silent on two occasions. First, he stated, “I don’t even wanna

talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more,”

1

 and then he

stated, “I plead the fifth.” Anderson did not express a desire

to remain silent in response to the clarifying question. As

noted above, the state court concluded that Anderson’s comments were ambiguous and that the interrogating officer’s

question sought clarification. These are the state-court determinations we must review on appeal. 

If this case were not before us on 28 U.S.C. § 2254 habeas

review, we might be writing a very different opinion. There’s

definitely more than one way to interpret Detective

O’Connor’s interrogation. And, the state court’s interpretation

might not be the most plausible one. But in federal habeas

proceedings under AEDPA,2 great deference is given to statecourt factual and legal determinations. 

To reverse under AEDPA, we would have to find the statecourt conclusion to be “an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see also Rice v. Collins,

1Anderson does not argue that this was an unequivocal invocation of his

right to remain silent. 

2Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, § 104, 110 Stat. 1214, 1218 (1996) (amending 28 U.S.C.

§ 2254). AEDPA “modified a federal habeas court’s role in reviewing

state prisoner applications in order to prevent federal habeas ‘retrials’ and

to ensure that state-court convictions are given effect to the extent possible

under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (quoting Williams v.

Taylor, 529 U.S. 362, 403-04 (2000)). 

18396 ANDERSON v. TERHUNE
126 S. Ct. 969, 974-76 (2006) (holding that it was not unreasonable for a state court to determine that a prosecutor’s

explanations were race-neutral for Batson purposes). Further,

state-court factual findings must be “presumed to be correct,”

and the habeas petitioner “must rebut[ ] the presumption of

correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1); see also Miller-El v. Drekte, 125 S. Ct. 2317,

2325 (2005). 

AEDPA similarly requires us to give considerable deference to a state appellate court’s legal judgments. In reviewing

questions of law, we may not reverse under AEDPA unless

the state’s court’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). This inquiry is “straightforward.” Lockyer v. Andrade, 538 U.S. 63, 74-75 (2003). We look to the

Supreme Court’s “holdings, as opposed to dicta,” to determine whether clearly established federal law exists. Williams

v. Taylor, 529 U.S. 362, 412 (2000). And, if clearly established federal law applies, it’s not enough for the state court

to incorrectly apply the law: “[A]n unreasonable application

of federal law is different from an incorrect application.” Id.

at 409; see also id. at 411 (“[A] federal habeas court may not

issue a writ simply because that court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”).

[3] We’re thus left with only two ways to reverse: First, we

would have to find that the state court’s factual findings were

unreasonable, and petitioner rebutted them with clear and

convincing evidence. Or, in the alternative, we would have to

hold that this determination was a question of law, and the

state court’s decision unreasonably applied clearly established

federal law. Namely, there would have to be some clear-cut

Supreme Court rule that certain magic words automatically

bring all questioning to a halt—regardless of the circumANDERSON v. TERHUNE 18397
stances surrounding the interrogation. Here, neither is the

case. 

[4] The state court found, for better or for worse, that

Anderson’s attempted invocation of his right to remain silent

was ambiguous and that the officer’s following question legitimately sought clarification. Absent a bright-line rule from the

Supreme Court, the state-court conclusion is a reasonable

determination of the facts.

Right to Counsel

[5] Anderson also contends that he validly invoked his right

to counsel and did not subsequently waive this right prior to

the confession. Once Anderson stated “I’d like to have an

attorney present,” the interrogating officers stopped the interrogation and turned the tape recorder off. However, Anderson

unilaterally continued the conversation and asked what was

going to happen to him. Accordingly, the interrogating officers were not prohibited from further questioning. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (holding

that the question, “Well, what is going to happen to me?” is

enough to “initiate” conversation after requesting a lawyer).

In response to the officers’ statements that they could not talk

to him, Anderson clarified that he “was just jokin[g]” and

stated “I don’t want an attorney. I’ve changed my mind.”

Therefore, Anderson validly waived his right to counsel. See

Id. at 1046. 

Coercion Claims

[6] Anderson next argues that the interrogating officers

coerced his confession because they withheld basic needs,

such as cigarettes and warm clothing, until he agreed to talk,

exploited his mental condition brought on by chronic drug

use, threatened him with the death penalty and ignored his

requests to remain silent. The record does not support a finding of an involuntary confession. See United States v. Cole18398 ANDERSON v. TERHUNE
man, 208 F.3d 786, 791 (9th Cir. 2000) (heroin withdrawal

and physical discomfort not enough to establish involuntariness of confession); United States v. Guerrero, 847 F.2d

1363, 1366 (9th Cir. 1988) (promise to recommend leniency

not enough). 

[7] Finally, Anderson argues that the trial court improperly

excluded evidence of coercion. The state court reasonably

concluded that the criminal trial court did not violate the holding of Crane v. Kentucky, 476 U.S. 683, 688-91 (1986). Petitioner was not prevented from presenting evidence of the

physical and psychological environment that yielded the confession. Exclusion of purported expert testimony of petitioner’s self-image and other aspects of the voluntariness of the

confession, if error, was harmless.

* * *

The standard of review is critical here. Under AEDPA, we

must give deference to state-court factual and legal determinations, which in this case are reasonable in light of the evidence presented in the state-court proceedings and the lack of

clearly established federal law to the contrary. The district

court’s judgment denying Anderson’s petition for writ of

habeas corpus is therefore AFFIRMED.

McKEOWN, Circuit Judge, dissenting: 

It is likely that few Americans can profess fluency in the

Bill of Rights, but the Fifth Amendment is surely an exception.1

1As early as 1955, the Supreme Court recognized that “in popular parlance and even legal literature, the term ‘Fifth Amendment’ in the context

of our time is commonly regarded as being synonymous with the privilege

against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163

(1955); accord In re Johnny V., 149 Cal. Rptr. 180, 184, 188 (Cal. Ct.

App. 1978) (holding that the statement “I’ll take the fifth” was an assertion of the Fifth Amendment privilege.) 

ANDERSON v. TERHUNE 18399
From television shows like “Law & Order” to movies such as

“Guys and Dolls,” we are steeped in the culture that knows a

person in custody has “the right to remain silent.” Miranda is

practically a household word. And surely, when a criminal

defendant says, “I plead the Fifth,” it doesn’t take a trained

linguist, a Ph.D, or a lawyer to know what he meant. 

Here, Anderson said, “I don’t even wanna talk about this no

more,” “Uh! I’m through with this,” and “I plead the Fifth.”

The officer did not stop questioning but instead responded,

“Plead the Fifth. What’s that?”, continued the questioning,

and ultimately obtained a confession. It is rare to see such a

pristine invocation of the Fifth Amendment and extraordinary

to see such flagrant disregard of the right to remain silent.

Under even the narrowest construction of AEDPA,2 the state

court erred in failing to recognize this constitutional violation.

I respectfully dissent from the majority’s view that there was

some ambiguity in Anderson’s unequivocal invocation of the

Fifth Amendment such that clarifying questions were permitted. 

The continued questioning violated the Supreme Court’s

bright-line rule established in Miranda v. Arizona. Once a

person invokes the right to remain silent, all questioning must

cease:

If the individual indicates in any manner, at any time

prior to or during questioning, that he wishes to

remain silent, the interrogation must cease. At this

point he has shown that he intends to exercise his

Fifth Amendment privilege; any statement taken

2Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254(d), a writ of habeas corpus may not be

granted unless the state court’s decision (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.

18400 ANDERSON v. TERHUNE
after the person invokes his privilege cannot be other

than the product of compulsion, subtle or otherwise.

384 U.S. 436, 473-74 (1966). 

The expansion of legitimate clarifying questions to cover

this situation is contrary to, and an unreasonable application

of, clear Supreme Court precedent. Additionally, even a cursory examination of the interrogation transcript reveals that

the state court made an unreasonable determination of the

facts in evaluating Anderson’s Miranda claim. Anderson’s

invocation was not ambiguous, and only one reasonable conclusion can be gleaned from his statements, especially his last

declaration, “I plead the Fifth:” he invoked his right to remain

silent and wanted to end the interrogation.

I. THE INTERROGATION

After an initial interview about the murder, Anderson was

brought to the police station for further questioning. The relevant portion of the transcript is so extraordinary that it bears

repeating. Despite clear and repeated invocations of his right

to remain silent, the officers continued to question Anderson

about the murder: 

Officer: You act like you’re cryin’ like a baby,

an’ you can’t cry for someone that was

a no good . . . an’ you killed him for a

good reason. 

Anderson: No, way! No, way. I — You know

what, I don’t even wanna talk about this

no more. We can talk about it later or

whatever. I don’t want to talk about this

no more. That’s wrong. That’s wrong. 

Officer: Right now, you show your remorse. 

ANDERSON v. TERHUNE 18401
Immediately after this exchange, the officer continued to

interrogate Anderson regarding his drug use on the day of the

murder, including whether Anderson had used pipes. This

questioning is significant because the murder victim was

found with a pipe next to him. The entire conversation was

about the murder. In response to this questioning, Anderson

unambiguously indicated that he wanted to end the interrogation by stating that he was “through with this,” wanted to “be

taken into custody” and “I plead the Fifth”: 

Anderson: I have nothin’ to worry about, nothin’ to

hide. That’s why I show no remorse.

Nothin’ to worry about, nothin’ to hide.

He was my friend, an’ there’s no way I

would do it. No, way I would do it. 

Officer: Were you high that day? 

Anderson: No, sir. I — probably was later on. Yes.

Officer: Did you have any dope with you that

. . . that day? 

Anderson: No, sir. 

Officer: No, dope at all? What do you smoke

with? 

Anderson: I smoke with my . . . my fingers. 

Officer: When you smoke your dope what do

you do with that? How do you smoke

that? 

Anderson: You smoke it with pipes and stuff like

that. 

Officer: Okay. What kind of pipes? 

18402 ANDERSON v. TERHUNE
Anderson: Lines. 

Officer: What kind of pipes? 

Anderson: N’ah . . . I would — I — 

Officer: Well, what kind of pipes? 

Anderson: Uh! I’m through with this. I’m through.

I wanna be taken into custody, with my

parole . . . 

Officer: Well, you already are. I wanna know

what kind of pipes you have? 

Anderson: I plead the [F]ifth. 

Officer: Plead the [F]ifth. What’s that? 

Anderson: No, you guys are wrong. You guys are

wrong. You guys have—I’ve tried to

tell you everything I know. As far as I

know, you guys are lying, uh, making

things up, extenuating and that’s not

right. It’s not right. 

Officer: We’re not makin’ anything up. 

Anderson: Sir, sure you are. 

Officer: What are we makin’ up? 

Anderson: You’re tellin’ me that I didn’t have

tears in my eyes. 

Officer: Yeah. 

Anderson: You’re tellin’ me, okay, that, uh, uh,

Abe said I kilt him. That’s a lie. 

ANDERSON v. TERHUNE 18403
The questioning continued until Anderson asked for a lawyer: “I’d like to have an attorney present.” At that juncture,

the police turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officer concluded that

Anderson wanted to reinitiate the discussion. The questioning,

which took place over a three-hour period, led to a confession

by Anderson. 

II. IN CLEAR VIOLATION OF MIRANDA, THE STATE COURT

UNREASONABLY CONCLUDED THAT ANDERSON’S

INVOCATION (“I PLEAD THE FIFTH”) WAS AMBIGUOUS

Against this backdrop, the state court accurately recognized

that Anderson unambiguously invoked his right to remain

silent when he stated, “I plead the Fifth,” but then went on to

eviscerate that conclusion by stating that the comments were

“ambiguous in context”:

In the present case, the defendant’s comments were

ambiguous in context because they could have been

interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to

continue the questioning at all. By asking defendant

what he meant by pleading the fifth, the officers

asked a legitimate clarifying question.

Using “context” to make an unambiguous invocation

ambiguous defies both common sense and established

Supreme Court law. 

Although the Supreme Court has observed that in invoking

a constitutional right, “a suspect need not ‘speak with the discrimination of an Oxford don,’ ” Davis v. United States, 512

U.S. 452, 459 (1994) (quoting id. at 476 (Souter, J., concurring)), Anderson would meet even this erudite standard. This

is not a case where the officers or the court were left scratching their heads as to what Anderson meant. Nothing was

18404 ANDERSON v. TERHUNE
ambiguous about the statement “I plead the Fifth.”

3

 That invocation should have brought an immediate end to questioning.

Miranda, 384 U.S. at 473. 

Instead of honoring the request, the interrogating officers

decided to “play dumb,” hoping to keep Anderson talking by

responding, “Plead the Fifth. What’s that?” This effort to keep

the conversation going was almost comical. The officer knew

what “I plead the Fifth” meant. It is baffling that the state

court determined that “[b]y asking defendant what he meant

by pleading the Fifth, the officers asked a legitimate clarifying

question.” Nothing needed clarification. What about the

words “I plead the Fifth” would be unclear, ambiguous, or

confusing to a reasonable officer? See Connecticut v. Barrett,

479 U.S. 523, 529 (1987) (holding in the context of the invocation of the right to counsel that “[i]nterpretation is only

required where the defendant’s words, understood as ordinary

people would understand them, are ambiguous”). Rather, the

officer hoped Anderson would explain more about the murder, the exact topic he did not want to talk about. They knew

that continuing the interrogation was “reasonably likely to

elicit an incriminating response” from Anderson. Rhode

Island v. Innis, 446 U.S. 291, 303 (1986). And they were

right. 

The Supreme Court has countenanced clarifying questions

only to ascertain whether the suspect actually invoked the

right to remain silent. See, e.g., Miranda, 384 U.S. at 444-45

(focusing only on the threshold question of whether the

accused “indicate[d] in any manner and at any stage of the

process that he wish[ed] to consult with an attorney before

speaking” when deciding whether police had honored their

Fifth Amendment rights); Edwards v. Arizona, 451 U.S. 477,

3

See Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir. 2005) (holding,

with respect to a defendant who said that he did not want to talk on tape,

that “it is difficult to imagine how much more clearly a layperson . . .

could have expressed his right to remain silent.”). 

ANDERSON v. TERHUNE 18405
484-85 (1981) (focusing on whether accused had actually “expressed his desire” for, or “clearly asserted” his invocation of

his Fifth Amendment rights); Smith v. Illinois, 469 U.S. 91,

95 (1984) (holding that “[t]his case concerns the threshold

inquiry: whether Smith invoked his right to counsel in the

first instance”). Ignoring this principle, the state court found

that the comments were ambiguous “because they could have

been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the

questioning at all.” 

While the majority defers to this far-fetched reasoning, the

rationale for the state court decision falls of its own weight.

The police did not ask Anderson what subject he did not want

to discuss; nor did any of their follow-up questioning address

this topic. The state court’s characterization is a fanciful re

imagining of the colloquy between Anderson and the police,

and under AEDPA, certainly an unreasonable determination

of the facts. Significantly, the question can hardly be characterized as one to clarify or double-check whether Anderson

invoked his right to remain silent, the only legitimate clarifying inquiry authorized by Supreme Court precedent. Smith,

469 U.S. at 95. The state court’s conclusion that “[i]t was the

defendant, not the interrogators, who continued the discussion,” ignores the bedrock principle that the interrogators

should have stopped all questioning. A statement taken after

the suspect invoked his right to remain silent “cannot be other

than the product of compulsion, subtle or otherwise.”

Miranda, 384 U.S. at 474. Finally, even taken on its own

terms, the majority’s factual hair-splitting is mistaken. It

makes no sense to split hairs and say that maybe, just maybe,

Anderson wanted to talk about the murder and not about his

drug use because, in fact, the drug use was inextricably intertwined with the murder. It is precisely this kind of hairsplitting that the Supreme Court wanted to avoid when it fashioned the bright-line rule in Miranda. Davis, 512 U.S. at 461

(noting that the benefit of the bright-line rule is the “clarity

and ease of application” that can be applied by officers in the

18406 ANDERSON v. TERHUNE
real world without “unduly hampering the gathering of information” by forcing them to make “difficult judgment calls”

with a “threat of suppression if they guess wrong”). No guess

work was required here. 

But under the majority’s interpretation of Miranda and its

progeny, every time a suspect unequivocally invokes the right

to remain silent, the police can ask follow-up questions to

clarify whether he really, really wants to invoke the right and

to parse the subject matter—“what specifically do you not

want to talk about?” The majority’s holding allows the police

to turn the Fifth Amendment into a game of “Twenty Questions,” permitting the police to continue the interrogation and

forcing the suspect to take a multiple choice quiz. Such a

practice is tantamount to endless re-interrogation. 

Where the initial request to stop the questioning is clear,

“the police may not create ambiguity in a defendant’s desire

by continuing to question him or her about it.” Barrett, 479

U.S. at 535 n.6 (Brennan, J., concurring). By parsing Anderson’s invocation into specific subjects, the police “failed to

honor a decision of a person in custody to cut off questioning,

either by refusing to discontinue the interrogation upon

request or by persisting in repeated efforts to wear down his

resistance and make him change his mind.” Michigan v. Mosley, 423 U.S. 96, 105-06 (1975). The net result is that such

follow-up questions allow “the authorities through ‘badger-

[ing]’ or ‘overreaching’—explicit or subtle, deliberate or

unintentional—[to] wear down the accused and persuade him

to incriminate himself.” Smith, 469 U.S. at 98. 

Looking at this case through the AEDPA lens of deference

does nothing to change my conclusions. The state court’s

decision to ignore an unambiguous declaration of the right to

remain silent is directly contrary to Miranda. To the extent

the question is one of interpretation of Miranda and related

Supreme Court precedent, the state court’s interpretation is

flatly unreasonable. See Runnels, 421 F.3d at 867. And to

ANDERSON v. TERHUNE 18407
characterize Anderson’s statements as ambiguous was certainly an unreasonable finding of fact. 

III. THE STATE COURT ACTED CONTRARY TO SUPREME

COURT PRECEDENT BY USING ANDERSON’S RESPONSES

TO RE-INTERROGATION TO FIND A VALID WAIVER

The state appellate court attempted to bolster its conclusion

about Anderson’s statements by claiming that he waived his

right to remain silent in continuing to answer police questions

after he stated, “I plead the Fifth”: 

By continuing to talk to the police officers, defendant demonstrated a willingness to continue to discuss the case . . . . Accordingly, while words of

invocation were spoken by the defendant, the court

concludes that, in any case, he effectively waived the

right to remain silent by what followed. 

Put another way, the state court suggests that because the

officers ignored Anderson’s unequivocal invocation of the

Fifth Amendment, their questioning caused him to keep talking, resulting in a waiver of his right to remain silent. This

analysis directly contravenes clear Supreme Court precedent,

thereby providing another ground upon which to grant the

writ under § 2254(d)(1). 

Smith mandates that all questioning must immediately

cease once the right to remain silent is invoked, and that any

subsequent statements by the defendant in response to continued interrogation cannot be used to find a waiver or cast

ambiguity on the earlier invocation. The Supreme Court’s

somewhat lengthy but crystal clear recitation of this principle

bears repeating: 

Where nothing about the request for counsel or the

circumstances leading up to the request would render

it ambiguous, all questioning must cease. In these

18408 ANDERSON v. TERHUNE
circumstances, an accused’s subsequent statements

are relevant only to the question whether the accused

waived the right he had invoked. Invocation and

waiver are entirely distinct inquiries, and the two

must not be blurred by merging them together. . . .

With respect to the waiver inquiry, we accordingly

have emphasized that a valid waiver “cannot be

established by showing only that [the accused]

responded to further police-initiated custodial interrogation.” Using an accused’s subsequent responses

to cast doubt on the adequacy of the initial request

itself is even more intolerable. “No authority, and no

logic, permits the interrogator to proceed . . . on his

own terms and as if the defendant had requested

nothing, in the hope that the defendant might be

induced to say something casting retrospective doubt

on his initial statement that he wished to speak

through an attorney or not at all.” 

Smith, 469 U.S. at 98-99 (internal citations omitted). 

The prejudice from Anderson’s confession cannot be soft

pedaled, and the error was not harmless. Brecht v. Anderson,

507 U.S. 619, 623 (1993). I would grant the writ of habeas

corpus.

ANDERSON v. TERHUNE 18409