FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL J. MARTINEZ,

Petitioner-Appellant,

v.

MATTHEW CATE,

Respondent-Appellee.

No. 15-16433

D.C. No.

CV 11-0572 AWI-MJS

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted February 7, 2018

San Francisco, California

Filed September 11, 2018

Before: Sidney R. Thomas, Chief Judge, A. Wallace

Tashima and Morgan Christen, Circuit Judges.

Opinion by Judge Tashima
2 MARTINEZ V. CATE

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of Daniel J.

Martinez’s habeas corpus petition challenging his California

conviction for second-degree murder, and remanded.

The panel held that the only reasonable interpretation of

what occurred between Martinez and an interrogating

detective is that the detective continued interrogating

Martinez after Martinez had clearly – and repeatedly –

invoked his right to counsel, and that the detective badgered

Martinez into waiving that right. The panel held that the

California Court of Appeal’s conclusion that the detective

ceased interrogation and that Martinez’s waiver of the right

to counsel was valid is an unreasonable application of

Miranda v. Arizona, 384 U.S. 436 (1966); Rhode Island v.

Innis, 446 U.S. 291 (1980); Edwards v. Arizona, 451 U.S. 477

(1981); and related cases. In light of the Edwards violation,

the panel further held that no reasonable court could have

concluded that the government overcame its burden to show

that Martinez’s subsequent waiver was valid. The panel had

grave doubts that the improper admission of Martinez’s

statements did not affect the verdict.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MARTINEZ V. CATE 3

COUNSEL

Gary P. Burcham (argued), Burcham & Zugman, San Diego,

California, for Petitioner-Appellant.

Brian R. Means (argued), Deputy Attorney General; Tami

M. Krenzin, Supervising Deputy Attorney General; Michael

P. Farrell, Senior Assistant AttorneyGeneral; Xavier Becerra,

Attorney General; Office of the Attorney General,

Sacramento, California; for Respondent-Appellee.

OPINION

TASHIMA, Circuit Judge:

Once a suspect invokes his right to counsel during

custodial interrogation, the officer must immediately cease

questioning and honor that right. In this habeas proceeding,

we hold that the interrogating officer failed scrupulously to

honor the suspect’s right and that the California Court of

Appeal unreasonably applied clearly established law in

concluding otherwise. Further, we have grave doubts as to

whether the admission into evidence of the suspect’s

improperly-obtained statements influenced the jury’s verdict. 

We thus reverse the district court's denial of habeas relief, and

remand for further proceedings consistent with this opinion.
4 MARTINEZ V. CATE

BACKGROUND

I. Factual Background

A. The Shooting

On December 8, 2005, Petitioner Daniel Martinez and

Pablo Lopez had a neighborhood confrontation with Jefte and

Jair Garcia that left Jefte dead from a gunshot wound.1

There are differing accounts of the shooting, but the basic

facts are as follows. Martinez and Lopez’s neighborhood

included residents claiming membership in the rival Norteño

and Sureño gangs. The Garcia brothers claimed Sureño

membership; Martinez and Lopez allegedly claimed Norteño. 

On December 8, 2005, Martinez and Lopez knocked on a

companion’s door and retrieved a shotgun stored there. One

companion testified that Martinez asked for “the gauge,”

referring to the shotgun. Lopez put the gun behind his back

and started to walk down the driveway with Martinez. Two

companions from the house followed Lopez and Martinez. 

Halfway down the driveway, Martinez and Lopez started

exchanging words with the Garcia brothers, who were across

the street. The brothers accused Lopez and Martinez of

tagging “YGL,” which stands for “Young Gangster Locos,”

on the sidewalk outside of the brothers’ house. Jefte took his

shirt off and walked to the middle of the street. Both of

Lopez and Martinez’s companions thought that Jefte wanted

to fight. Additionally, one of the companions testified that

Jair threatened, “I’ll peel your guys’ cap back,” meaning he

was going to shoot at them, but there was no consensus about

1 The facts are adopted fromthe California Court of Appeal’s decision

and, pursuant to 28 U.S.C. § 2254(e), presumed to be true.
MARTINEZ V. CATE 5

whether the Garcia brothers referred to having a gun. The

two companions’ recollections also differed as to whether

Martinez said anything to Jefte or Lopez while Jefte was

shirtless in the middle of the street. One companion testified

that Jair reached behind his back during the confrontation. 

The other companion did not hear the brothers threaten to

shoot at Lopez and Martinez, and did not see a weapon on the

Garcia brothers. Lopez eventually produced the shotgun

from behind his back and almost immediately fired it once. 

Jefte was facing the weapon when he was shot. One of the

companions testified that Martinez had told Lopez to “[j]ust

do it” right before Lopez fired. Martinez, Lopez, and their

two companions ran.

Afterwards, Martinez hid out at a nearby house and

bragged that he had “shot this fool, shot this scrap.”2 Two

days later, the police arrested Martinez.

B. The Interrogation

On December 10, 2005, at approximately 7:00 p.m., 

Detective Navarro interrogated Martinez. In the interview

room, Detective Navarro uncuffed Martinez, got him some

water, took some biographical information and said,

I want to talk to you about the shooting last

night or two nights ago . . . . I know what

happened already OK . . . . I really want to

get your side of the story. I only have one

side of the story right now. OK. UH from the

guys across the street, the Sureños.

2

 “Scrap” may be a derogatory term for Sureño members.
6 MARTINEZ V. CATE

Detective Navarro then read Martinez his Miranda rights.

Immediately after hearing his Miranda rights, Martinez

asked, “I can have an attorney?” Detective Navarro clarified

whether Martinez wanted an attorney and Martinez stated, “I

would like to have an attorney.” Without a break, Detective

Navarro asked Martinez if he already had an attorney (yes),

what his attorney’s name was (Percy), whether Martinez had

already spoken to Percy (no), and whether Martinez would

talk “but with an attorney present?” To the last question,

Martinez replied “yeah [] cuz [sic] I don’t know much about

the law.” Detective Navarro then questioned Martinez about

Martinez’s father’s full name. After Martinez answered, the

following interaction took place:

MARTINEZ: Alright. I’m willing to talk to

you guys uh but just I would like to have an

attorney present. That’s it.

NAVARRO: Yeah, I don’t know if we could

get a hold of him right now.

MARTINEZ: Yeah.

NAVARRO: All I wanted was your side of

the story. That’s it. OK. So, I’m pretty much

done with you then. Um, I guess I don’t know

another option but to go ahead and book you. 

OK. Because

MARTINEZ: What am I being booked

under?
MARTINEZ V. CATE 7

NAVARRO: Your3going to be booked for

murder because I only got one side of the

story. OK.

MARTINEZ: But how how’s he going to go

about that. If we talk, once you get a hold of

my uh attorney.

NAVARRO: That’s the thing, I don’t know

when were going to get a hold of him. Maybe

I don’t know when he’s going I don’t know

when your going to call him.

MARTINEZ: I have to get a hold of him.

NAVARRO: Huh?

MARTINEZ: I have to get a hold of him?

NAVARRO: Yeah.

MARTINEZ: You guys don’t

(unintelligible)

NAVARRO: No. No, your going to have to

call him and it’s going to have to be from jail.

3 The transcript of the interrogation contains several typographical

errors. Where we quote extensive portions of the transcript, we reproduce

the interrogation as recorded, rather than entering “[sic]” after each one. 

Where the transcript included [sic] we have omitted the designation for

readability.
8 MARTINEZ V. CATE

After Martinez expressed frustration about the situation,

he asked the detective, “what did you want to talk to me

about?” At which point Detective Navarro said that he

wanted to talk about the shooting and asked if Martinez

“want[s] the attorney,” or whether Martinez did not care. 

Martinez and Detective Navarro went back and forth a bit,

with the detective saying he wanted Martinez’s side of the

story and Martinez saying he did not want to go to jail and

that he would tell the truth if that “help[ed] [him] walk

away.”

Without an attorneypresent, Detective Navarro continued

to interrogate Martinez. At trial, Detective Navarro testified

that he asked Martinez whether Martinez felt intimidated by

Jefte during the confrontation, and whether Martinez saw a

gun on Jefte. Detective Navarro testified that Martinez said

he did not feel threatened and did not see a gun.

II. Procedural Background

A. Trial

Martinez did not file a pre-trial motion to suppress the

statements from Detective Navarro’s interrogation. Instead,

during trial, the defense objected to admission of the

statements on Fifth Amendment grounds and the trial judge

held a sidebar with counsel to discuss the matter. The trial

judge concluded that although Martinez invoked the right to

counsel, Navarro ceased interrogation. Then, in the eyes of

the trial judge, Martinez reinitiated conversation and

voluntarily waived his previously-asserted right to counsel. 

Specifically, the trial judge determined that questions about

Martinez’s attorney and about Martinez’s father were not

improper questions after Martinez’s invocation, but were
MARTINEZ V. CATE 9

instead part of the booking process. Further, the trial judge

concluded that nothing that Detective Navarro said after

Martinez’s invocation was a “threat” that “would invalidate

[Martinez] changing his mind on the invocation.” The trial

judge did highlight Detective Navarro’s statement that he was

going to book Martinez “because [he] only got one side of the

story” as the most “critical” issue that “might jeopardize”

admission of Martinez’s responses. Nonetheless, the judge

concluded that the questions after Martinez’s invocation were

valid, and that Martinez’s change of heart was voluntary. The

trial judge refused to suppress the statements.

During closing argument, the prosecution cited

Martinez’s responses to Detective Navarro’s questioning to

rebut a self-defense instruction. The prosecution argued that

Martinez’s statements that “he didn’t see a gun” and “didn’t

feel threatened” were “critical” to “self-defense and dropping

a murder [conviction] to manslaughter . . . .”

The juryconvicted Martinez of second-degree murder and

active gang participation but “also expressly found that

Martinez ‘did act intentionally, deliberately and with

premeditation.’” Therefore, the jury did not accept

Martinez’s self-defense argument. Martinez was sentenced

to 40 years to life imprisonment.

B. Direct Appeal

On direct appeal, Martinez challenged the admission of

the statements. The California Court of Appeal reviewed the

interview transcript and affirmed the trial court’s ruling that

Martinez’s statement was admissible. The court focused its

analysis on whether Detective Navarro telling Martinez that
10 MARTINEZ V. CATE

he would need to contact his lawyer from jail rendered his

waiver involuntary.

First, citing Rhode Island v. Innis, 446 U.S. 291, 301

(1980), the Court of Appeal found that “once Navarro

clarified that Martinez was willing to talk to him, but wanted

an attorney present, interrogation ceased. The questions

Navarro asked concerningMartinez’s father did not constitute

interrogation.” Second, the court reasoned that “[i]t was

Martinez who then turned the subject back to having an

attorney present; we see nothing deceptive or coercive in

Navarro’s response that he did not know if they could get

hold of Martinez’s attorney.” Third, the court interpreted

Martinez’s “question about what he was being booked for” as

a reinitiation of the conversation with Detective Navarro. 

Fourth, the court concluded that “[t]here was nothing

inappropriate or misleading in Navarro’s tellingMartinez that

Martinez would have to call his lawyer from jail.” Finally,

the court noted that “[a]fter Martinez asked what Navarro

wanted to talk about, Navarro proceeded to make certain that

Martinez was waiving his right to counsel.” The court did not

explicitly discuss whether it considered Martinez’s waiver

voluntary, knowing, and intelligent, but this must have been

its conclusion.

The California Supreme Court summarily denied

Martinez’s petition for review.

C. Habeas Proceedings

Martinez filed a petition for writ of habeas corpus in the

Stanislaus County Superior Court, which denied the petition,

“find[ing] that all the issues raised in the writ were

appropriatelyconsidered by the [California Court of Appeal],
MARTINEZ V. CATE 11

or if not, could have been.” Subsequent petitions to the

California Court of Appeal and California Supreme Court

were summarily dismissed.

Martinez then filed his federal habeas petition. A

magistrate judge issued Findings and Recommendations,

recommending that the district court deny Martinez’s claim

that “his Miranda rights were violated based on continued

questioning after he invoked his right to an attorney.” In

recommending that the district judge deny the petition, the

magistrate judge noted that the conversation between

Martinez and Detective Navarro “could be interpreted in

multiple ways.” On one hand, the magistrate judge wrote that

a “fair-minded jurist could find that the officer continued to

interrogate” Martinez after he had invoked his right to

counsel because “the officer may have used the coercive

pressure of booking Petitioner in jail to obtain a waiver of his

right to counsel.” On the other hand, the Findings and

Recommendations concluded that “the state court’s

determination is equally plausible. . . . [T]elling Petitioner

that if the interrogation were over, he would be booked is

informative in nature, and likewise may not be considered as

[continued] interrogation.”

Somewhat contradicting the conclusion that the state

court’s determination was “equally plausible,” the magistrate

judge also “note[d] that the officer did more here than just

inform Petitioner that he was going to be booked.” In doing

so, the magistrate judge recognized that the officer may have

“create[d] the potential implication that if Petitioner was to

talk then he might not be booked.” Nevertheless, because

“fairminded jurists could disagree” over the interpretations,

the magistrate judge recommended denying the petition, but

granting a Certificate of Appealability.
12 MARTINEZ V. CATE

The district court adopted the Findings and

Recommendations denying the petition and issued a

Certificate of Appealability as to Martinez’s Miranda claim.

STANDARD OF REVIEW

We review de novo the district court’s denial of

Martinez’s habeas petition, and we review the district court’s

findings of fact for clear error. See Hurles v. Ryan, 752 F.3d

768, 777 (9th Cir. 2014).

When, as here, we conclude that a state court committed

a constitutional error during a criminal trial, we “must assess

the prejudicial impact of [the error] under the ‘substantial and

injurious effect’ standard set forth in Brecht v. Abrahamson,

507 U.S. 619 (1993).” Fry v. Pliler, 551 U.S. 112, 114

(2007). This is true even “when the state appellate court

failed to recognize the error and did not review it for

harmlessness.” Id.; see also Larson v. Palmateer, 515 F.3d

1057, 1064 (9th Cir. 2008).

“In conducting our review, we look to the last reasoned

state-court decision.” Van Lynn v. Farmon, 347 F.3d 735,

738 (9th Cir. 2003). Here, the parties agree that the relevant

decision is the California Court of Appeal’s decision on direct

appeal.

DISCUSSION

Martinez’s habeas petition is governed by the provisions

of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). 

AEDPA “restricts the circumstances under which a federal

habeas court may grant relief to a state prisoner whose claim
MARTINEZ V. CATE 13

has already been ‘adjudicated on the merits in State court.’” 

Johnson v. Williams, 568 U.S. 289, 292 (2013) (quoting

28 U.S.C. § 2254(d)). Under AEDPA, this court may only

grant habeas relief if a state court’s decision was

(1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

We first consider whether to review Martinez’s claims de

novo or whether to accord the California court the required

deference. Decisions that are not “adjudicated on the merits”

are not subject to AEDPA deference. See Johnson, 568 U.S.

at 292. At oral argument, there was some discussion about

whether the state court `reached the merits of one of

Martinez’s arguments – namely, that Navarro continued

interrogation by telling Martinez that he would be booked

because he was not talking. But, Martinez had never

previously asserted that the state court failed to adjudicate his

claims on the merits and thereby abandoned the issue. See

Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009). 

Regardless, there is a strong presumption that the California

Court of Appeal reached the merits of Martinez’s Miranda

claim and Martinez did not rebut this presumption. See

Johnson, 568 U.S. at 301–02. Further, just because the

California Court of Appeal did not explicitly state that the

booking comments were not interrogation, we presume it

concluded as much in remarking “[i]n our view, once Navarro

clarified that Martinez was willing to talk to him, but wanted

an attorney present, interrogation ceased.”
14 MARTINEZ V. CATE

Martinez also asserts that we should review his legal

claims de novo because the California Court of Appeal’s

decision was based on an unreasonable determination of

facts. We think the court reasonably determined the facts. 

Martinez contends that the state court’s “focus was

improperly narrow” because it did not explicitly discuss

Navarro’s statements about booking Martinez based on his

unwillingness to talk. However, the Court of Appeal

included the relevant portion of the transcript in its decision

and presumptively read it. That the Court of Appeal did not

discuss Navarro’s statements about booking Martinez in its

analysis section is not a factual error; rather, the court made

a legal determination that those statements did not rise to the

level of interrogation. We therefore review the Court of

Appeal’s decision with the requisite AEDPA deference.

I. Miranda and its Progeny

Miranda v. Arizona and its progeny provide the clearly

established law upon which Martinez’s petition is based. 

Among the many safeguards that Miranda established for

criminal defendants, one is the express “right to have counsel

present” during a custodial interrogation. 384 U.S. 436, 469

(1966). Miranda described this right as “indispensable” to

the protection of the Fifth Amendment privilege against selfincrimination. Id.

Building on Miranda, Edwards v. Arizona set out the

analysis that courts must follow when a defendant has

invoked his right to counsel. 451 U.S. 477, 482–86 (1981). 

First, Edwards explained that “waivers of counsel must not

only be voluntary, but must also constitute a knowing and

intelligent relinquishment or abandonment of a known right

or privilege.” Id. at 482. Edwards then held that “a valid
MARTINEZ V. CATE 15

waiver of that right cannot be established by showing only

that [a suspect] responded to further police-initiated custodial

interrogation.” Id. at 484. Finally, Edwards established the

rule that once an accused invokes the right to counsel, he “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.” Id. at 484–85. Arizona v.

Roberson then articulated some of the reasoning behind the

Miranda and Edwards rule:

[I]f a suspect believes that he is not capable of

undergoing such questioning without advice

of counsel, then it is presumed that any

subsequent waiver that has come at the

authorities’ behest . . . is itself the product of

the inherently compelling pressures and not

the purely voluntary choice of the suspect.

486 U.S. 675, 681 (1988) (internal quotation marks omitted). 

This line of cases “thus established another prophylactic rule

designed to prevent police from badgering a defendant into

waiving his previously asserted Miranda rights.” Michigan

v. Harvey, 494 U.S. 344, 350 (1990).

The prophylactic rule set out in Edwardsis limited by two

principles. First, the suspect can counteract his own

invocation of the right to counsel by “initiat[ing] further

communication, exchanges, or conversations with the police.” 

Edwards, 451 U.S. at 485. A suspect “evinc[ing] a

willingness and a desire for a generalized discussion about

the investigation[,]” including asking “what is going to

happen to me now?” is sufficient to initiate further

discussions with the police. See Oregon v. Bradshaw,
16 MARTINEZ V. CATE

462 U.S. 1039, 1045–46 (1983) (plurality opinion)

(Rehnquist, J.). But, initiating further discussions is not

sufficient to admit a defendant’s responses. “[I]f the accused

invoked his right to counsel, courts may admit his responses

to further questioning only on finding that he (a) initiated

further discussions with the police, and (b) knowingly and

intelligently waived the right he had invoked.” Smith v.

Illinois, 469 U.S. 91, 95 (1984) (per curiam) (citing Edwards,

451 U.S. at 485–86, n.9).

Second, the rule in Edwards does not apply to all

interactions with the police – it applies only to custodial

interrogation. Edwards, 451 U.S. at 486. In other words, not

all communications with the police after a suspect has

invoked the right to counsel rise to the level of interrogation. 

“‘Interrogation,’ as conceptualized in the Miranda opinion,

must reflect a measure of compulsion above and beyond that

inherent in custody itself.” Rhode Island v. Innis, 446 U.S.

291, 300 (1980). “[T]he Miranda safeguards come into play

whenever a person in custody is subjected to either express

questioning or its functional equivalent.” Id. at 300–01.

II. Martinez’s Miranda Claim

The parties agree that Martinez unequivocallyinvoked his

right to counsel. We therefore review whether Detective

Navarro continued interrogating Martinez in violation of

Edwards, and whether Martinez’s statements are nonetheless

admissible. We hold that the only reasonable interpretation

of what occurred between Navarro and Martinez is that

Navarro continued interrogating Martinez after the suspect

had clearly – and repeatedly – invoked his right to counsel,

and that Navarro badgered Martinez into waiving that right.

The California Court of Appeal’s conclusion that Navarro
MARTINEZ V. CATE 17

ceased interrogation and that Martinez’s waiver of the right

to counsel was valid is an unreasonable application of

Miranda, Innis, Edwards, and related cases. In light of the

Edwards violation, we further hold that no reasonable court

could have concluded that the government overcame its

burden to show that Martinez’s subsequent waiver was valid.

A. Detective Navarro Continued Interrogation

1. Express Questioning

As noted above, Innis defined “interrogation” as either

express questioning or its functional equivalent. 446 U.S. at

300–01. We first review whether Martinez was subject to

express questioning that rose to the level of interrogation.

Innis recognizes that not all questions constitute

interrogation. Specifically, Innis exempts words and actions

that are “normally attendant to arrest and custody” from the

definition of interrogation. Id. at 301. Thus, “[t]he so-called

‘booking questions exception’ exempts ‘from Miranda’s

coverage [express] questions to secure the biographical data

necessary to complete booking or pretrial services.’” United

States v. Williams, 842 F.3d 1143, 1147 (9th Cir. 2016)

(quoting Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)

(plurality opinion)). Questions about the defendant’s “name,

address, height, weight, eye color, date of birth, and current

age” fall within the Miranda exception. Muniz, 496 U.S. at

601.

Immediately after Martinez requested an attorney,

Detective Navarro asked the defendant questions about

whether he already had a lawyer. Although these are express

questions, it is reasonable to conclude that the questions were
18 MARTINEZ V. CATE

“attendant to arrest” and that a reasonable officer would not

have known that this line of questioning was “likely to elicit

an incriminating response.” Innis, 446 U.S. at 301.

Likewise, the Court of Appeal’s conclusion that asking

about the name of Martinez’s father was not interrogation is

reasonable because Detective Navarro could have just been

eliciting biographical information. Therefore, a fairminded

jurist could conclude that these questions were attendant to

booking.

2. Functional Equivalent of Express Questioning

Next, we turn to whether Detective Navarro’s statements

after Martinez invoked his right to counsel constituted the

functional equivalent of express questioning. The functional

equivalent of interrogation is defined as “any words or

actions on the part of the police . . . that the police should

know are reasonably likely to elicit an incriminating response

from the suspect.” Id. This definition “focuses primarily

upon the perceptions of the suspect, rather than the intent of

the police,” but is an objective standard such that the police

“cannot be held accountable for the unforeseeable results of

their words or actions.” Id.

After Detective Navarro told Martinez that he was not

sure if his lawyer was available, Detective Navarro stated,

“[a]ll I wanted was your side of the story. That’s it. OK. So,

I’m pretty much done with you then. Um, I guess I don’t

know another option but to go ahead and book you. OK.

Because . . . .” Martinez cut in, “[w]hat am I being booked

under?” to which Navarro replied “[y]our [sic] going to be

booked for murder because I only got one side of the story.

OK.”
MARTINEZ V. CATE 19

The California Court of Appeal did not explicitly analyze

whether Detective Navarro’s two statements about booking

Martinez constituted interrogation. Instead, the Court of

Appeal stated, “[i]n our view, once Navarro clarified that

Martinez was willing to talk to him, but wanted an attorney

present, interrogation ceased.” In the absence of any

reasoning from the state court, the magistrate judge’s

Findings and Recommendations attempted to provide the best

justification for the California court’s conclusion that the

statements about booking were not interrogation: “telling

Petitioner that if the interrogation were over, he would be

booked is informative in nature, and likewise may not be

considered as interrogation.” Under this justification,

Detective Navarro’s statementswould be “attendant to arrest”

and exempted from the definition of interrogation. However,

this is an unreasonable application of the law to the facts

because it does not reflect the correct standard for

“interrogation” because it fails to consider the likely effect of

the words on the listening suspect – particularly the words

“[y]our [sic] going to be booked for murder because I only

got one side of the story.” Any reasonable officer would

know that these particular statements about booking would

likely elicit a response.

We think the only reasonable interpretation of (1) “all I

wanted was your side of the story. That’s it. OK. So, I’m

pretty much done with you then. Um, I guess I don’t know

another option but to go ahead and book you. OK. Because,”

and (2) “your [sic] going to be booked for murder because I

only got one side of the story. OK,” is that the statements, in

context, constitute interrogation. Again, the magistrate judge

summed up the issue succinctly: “the officer did more here

than just inform Petitioner that he was going to be booked.

The officer’s statements . . . create the potential implication
20 MARTINEZ V. CATE

that if Petitioner was to talk then he might not be booked.” 

Our only issue with the magistrate judge’s observation is the

word “potential” – we would replace it with “inescapable.”

The clearest evidence of the interrogating nature of

Detective Navarro’s statements is their plain language. By

stating, “your [sic] going to be booked for murder because I

only got one side of the story,” Detective Navarro causally

links Martinez’s assertion of his constitutional right to the

detective’s decision to book the suspect for murder. The

obvious implication of that linkage is that if Martinez were to

give his side of the story, by waiving his just-invoked right to

counsel, he will not be booked, or not be booked for murder. 

At the very least, the detective should know that his statement

would be perceived this way and was “reasonably likely to

elicit an incriminating response.” See Innis, 446 U.S. at 302.

Further, Detective Navarro’s statements to Martinez were

not definitive: “Im [sic] pretty much done with you then;” and

“I guess I don’t know another option but to go ahead and

book you.” (Emphasis added.) Saying that you are “pretty

much” done with someone or that you “guess you don’t know

another option” strongly implies that you are not completely

done with someone or that no other option exists. The

obvious implication is that Detective Navarro only had to

book Martinez if he did not give his side of the story. 

Conversely, Navarro implied that, if Martinez gave his side

of the story, Navarro might have alternative options to

booking the suspect.4

4 Detective Navarro’s statements are also improper in that they

implied Martinez would be punished for asserting his constitutional right

to counsel. See Doyle v. Ohio, 426 U.S. 610, 618 (1976) (“while it is true

that the Miranda warnings contain no express assurance that silence will
MARTINEZ V. CATE 21

The State argues that Detective Navarro telling Martinez

that he was booking the suspect, or that he had no option but

to book the suspect, was merely “attendant to arrest and

custody,” and “inform[ed][Martinez] of circumstances which

contribute[d] to an intelligent exercise of his judgment.” 

However, this argument ignores the causal link in Navarro’s

statements. Telling Martinez that he was being booked

because he did not give his side of the story is different than

an officer setting out the charges and the evidence against the

suspect. See United States v. Moreno-Flores, 33 F.3d 1164,

1169 (9th Cir. 1994) (holding that an officer telling a suspect

that the police had seized 600 pounds of cocaine, that the

suspect was in serious trouble, and that the detective would

like to talk to the suspect after the suspect had spoken to an

attorney, was not interrogatory); see also Shedelbower v.

Estelle, 885 F.2d 570, 573 (9th Cir. 1989).

The State also argues that Detective Navarro’s statements

about booking Martinez were just informational and were

“recounting what had occurred previously in their

conversation.” Beyond not offering any possible explanation

about why Navarro would need to recount the conversation,

this interpretation is also unreasonable because it ignores the

causal nature of Detective Navarro’s statements.

We cannot ignore the implications of Navarro’s statement

because the Innis test explicitly calls for considering the

“perceptions of the suspect, rather than the intent of the

police.” 446 U.S. at 301. Thus, even if Detective Navarro

only intended to recount what had happened during the

conversation, and in no way thought that he was booking

Martinez because he did not give a statement, the court must

carry no penalty, such assurance is implicit”).
22 MARTINEZ V. CATE

still consider how a suspect would perceive the statements. 

The California Court of Appeal failed to do this. Further,

how a suspect reacts to a statement can provide evidence of

how the suspect perceived the statement.

Here, Martinez responded as if he were being asked to

give a statement, and that by doing so he would be able to

avoid booking. After Navarro told Martinez “[y]our [sic]

going to be booked for murder because I only got one side of

the story,” Martinez responded “how’s he going to go about

that. If we talk once you get a hold of my uh attorney.” Later,

Martinez made multiple references to being willing to talk to

avoid jail:

MARTINEZ: I just you know I’m tired of

going back and forth to jail. And if that’s the

charge I mean you go, you don’t get the

choice to go back and forth you know so.

NAVARRO: Uh hmm. It’s up to you. Do

you want to talk or you want me to sit down?

MARTINEZ: Yeah. I mean I’m willing to

talk to you, you know what I mean but

NAVARRO: With the truth?

MARTINEZ: Shit, if that’s what helps me

walk away.

NAVARRO: Your young man. Just be

honest.
MARTINEZ V. CATE 23

MARTINEZ: Honest, the truth I’m just

trying to go through this and be able to walk

home and

NAVARRO: So do you want to talk to me so

I could sit down or what do you want to do?

MARTINEZ: Yeah.

NAVARRO: Yeah. OK. You don’t you

don’t want Percy then right now? Right?

You don’t want Percy?

MARTINEZ: Well, If I I mean

NAVARRO: You don’t you don’t want an

attorney right now? Your willing to talk to

me right now? I want to clarify that.

MARTINEZ: Yeah.

NAVARRO: OK.

MARTINEZ: I’m willing.

Martinez’s willingness to talk after Detective Navarro’s

statements, and Martinez’s multiple references to avoiding

jail, suggest that he perceived Detective Navarro’s statements

as suggestions that he might not be booked if he talked.

Because Navarro continued to interrogate Martinez after

Martinez had invoked his right to counsel, Navarro violated

the clearly-established rule from Edwards. It was an
24 MARTINEZ V. CATE

unreasonable application of Innis and Edwards to conclude

otherwise.

B. Martinez’s Statements are not Admissible

After finding an Edwards violation, we next assess

whether the incriminating statements were nonetheless

admissible. To be admissible, Martinez would (1) have

needed to initiate further communication with the police, and

(2) voluntarily, knowingly, and intelligently waived his

previously-invoked right.

First we analyze whether Martinez initiated further

discussion with Navarro. The government argues that

Martinez initiated further conversation by asking, “[w]hat am

I being booked under?” The California Court of Appeal also

suggested that Martinez’s question may have “evinced a

willingness and a desire for a generalized discussion about

the investigation; it was not merely a necessary inquiry

arising out of the incidents of the custodial relationship. It

could reasonably have been interpreted by the officer as

relating generally to the investigation.” (Quoting Bradshaw,

462 U.S. at 1045–46.)

No fairminded jurist could interpret Martinez’s statement

as a re-initiation of the conversation. For one, the

conversation between Navarro and Martinez never stopped. 

Initiate means “to begin” and no reasonable jurist could

review the transcript of the interaction between Detective

Navarro and conclude that Martinez began the exchange

about being booked for murder. Initiate, Oxford English

Dictionary Online (3d ed. 2018). In fact, Detective Navarro

was mid-sentence when Martinez asked his question.
MARTINEZ V. CATE 25

Similarly, Martinez’s question “what did you want to talk

to me about?” also came in the same conversation. In every

other case where the Supreme Court has held that a defendant

initiated the communication with the police, there was some

break in questioning. See Bradshaw, 462 U.S. at 1042

(describing that “[t]he officer immediately terminated the

conversation” before the defendant initiated communication

“[s]ometime later”); Wyrick v. Fields, 459 U.S. 42, 44–45, 47

(1982) (per curiam) (holding that where a defendant was

released from custody, met with counsel, and requested a

polygraph examination, the defendant “initiated

interrogation”). Further, Martinez’s question was a direct

response to Navarro’s assertion that he had to book Martinez

because he would not talk. The detective’s statements linking

Martinez’s booking to his invocation of the right to counsel,

and the detective’s comments that Martinez would need to

call his own attorney from jail are exactly the type of

badgering that Edwards was crafted to prevent.

Second, even if Martinez did reinitiate, his statements are

not admissible because in light of the Edwards violation it is

presumed that Martinez’s waiver of his right to counsel was

invalid. See Roberson, 486 U.S. at 681. The California Court

of Appeal did not explain its waiver analysis, simply stating

that “Navarro proceeded to make certain that Martinez was

waiving his right to counsel and did not want to have an

attorney, or his attorney, present.”

No fairminded jurist could review this record, conclude

that the State overcame the Edwards presumption, and hold

that Martinez’s waiver was voluntary. First, Martinez’s

responses to Navarro’s questions in themselves do not

constitute a valid waiver. See Edwards, 451 U.S. at 484

(“[W]hen an accused has invoked his right to have counsel
26 MARTINEZ V. CATE

present during custodial interrogation, a valid waiver of that

right cannot be established by showing only that he

responded to further police-initiated custodial interrogation

even if he has been advised of his rights.”). Next, although

Navarro told Martinez that it was up to him to decide whether

to talk, the context of the encounter cannot be ignored. This

happened in the same conversation in which Navarro told

Martinez that he was being booked because he would not

talk, in the same conversation where Martinez expressed

multiple times that he wanted a lawyer, and in the same

conversation where Martinez said he was just trying to avoid

getting booked. Detective Navarro’s last two statements to

Martinez before he finally relented are illustrative:

NAVARRO: Yeah. OK. You don’t you

don’t want Percy then right now? Right?

You don’t want Percy?

MARTINEZ: Well, If I I mean

NAVARRO: You don’t you don’t want an

attorney right now? Your willing to talk to

me right now? I want to clarify that.

Martinez’s response under Navarro’s pressure is still

equivocal: “[w]ell, if . . .” Martinez was still trying to assert

his right to counsel as Navarro peppered him with questions. 

This is not indicative of a voluntary waiver.

Navarro never honored Martinez’s invocation of his right

to counsel and kept talking until he got the answer he wanted. 

He never gave Martinez more than a few moments. 

Ultimately, because custodial interrogation never stopped, the

only reasonable interpretation of Navarro’s responses to
MARTINEZ V. CATE 27

Martinez’s invocation of the right to counsel is that the

detective was “badgering [the] defendant into waiving his

previously asserted Miranda rights.” Harvey, 494 U.S. at

350. In light of the Edwards presumption, the only

reasonable conclusion is that Martinez’s waiver “c[a]me at

the authorities’ behest . . . [and] is itself the product of the

‘inherently compelling pressures’” of Navarro’s custodial

interrogation. See Roberson, 486 U.S. at 681.

III. Prejudice

Our conclusion that no reasonable jurist would have

found Martinez’s waiver valid does not end the inquiry. 

Martinez is “not entitled to habeas relief based on trial error

unless [he] can establish that it resulted in actual prejudice.” 

Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht,

507 U.S. at 637 (internal quotation marks omitted)). “Under

this test, 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 (1995)).

Martinez contends that the admission of his statements

that he (1) did not see a gun on the Garcia brothers, and

(2) did not feel threatened influenced the jury’s verdict

because they rebutted his self-defense argument. 

Notwithstanding the admission of the statements, the State

counters that Martinez was not prejudiced because it

presented “overwhelming evidence” of Martinez’s guilt. 

Additionally, the government contends that the admission of

the interrogation statements allowed Martinez to introduce

evidence that he was intoxicated, which could have lowered

Martinez’s level of intent.
28 MARTINEZ V. CATE

We at least have grave doubt whether the admission of

Martinez’s statements substantially affected the jury’s

verdict. During closing argument, the prosecutor stated:

Daniel Martinez two days later, what critical,

critical statement made byDaniel Martinez, to

Detective Frank Navarro, “I didn’t see a gun.

No, I didn’t feel threatened.” Critical

statements made to the detective investigating

the homicide which shoots the alibi in the

foot. This is one of the two participants in the

murder who says, “I didn’t see a gun and I

didn’t feel threatened.” You must show

eminent threat of death or bodily injury in

order to justify shooting and killing somebody

for self-defense.

Imagine for a second if this instruction was

not present. You heard this referenced at least

three times. This was the – this instruction is

applicable to self-defense and dropping a

murder to manslaughter and amanslaughter to

attempted voluntary manslaughter. It’s a

defense.

The prosecutor continued, arguing that fear of some indefinite

future harm is not sufficient:

That’s why that cannot be recognized as a

valid self-defense. You cannot allow people to

go out and kill by saying and justifying it: I

have to. They’re going to get me, future harm.

That’s why the law’s written the way it is.
MARTINEZ V. CATE 29

Daniel Martinez said, “I didn't see a gun, and

I didn’t feel threatened.”

The prosecutor’s focus on rebutting Martinez’s self

defense argument, and especially Martinez’s admission that

he did not feel threatened, demonstrates how important the

prosecutor thought this evidence was for the State’s case. In

fact, he called Martinez’s statements “critical” and repeated

them twice. If the prosecutor thought that the statements

were critical for his case, he must have believed that they

could have “substantially swayed” the jury. See Sessoms v.

Grounds, 776 F.3d 615, 630 (9th Cir. 2015) (en banc). 

Further, returning to an argument in closing “again and again

and telling jurors it was ‘very important evidence’” bolsters

the likelihood that the evidence affected the jury. See id.; see

also Rodriguez, 872 F.3d at 926 (highlighting the prejudicial

effect of the government’s reliance in closing argument on a

theory first brought up during an improper interrogation).

Just as important, “[t]he prejudice from [a defendant’s]

confession cannot be soft pedaled.” Anderson v. Terhue,

516 F.3d 781, 792 (9th Cir. 2008) (en banc). “A confession

is like no other evidence; it may be the most damaging

evidence that can be admitted against a defendant.” Garcia

v. Long, 808 F.3d 771, 782 (9th Cir. 2015) (internal

quotations and alterations omitted) (citing Arizona v.

Fulminante, 499 U.S. 279, 296 (1991)). As such, this court

must “[e]xercis[e] extreme caution . . . before determining

that the admission of a confession at trial was harmless.” 

Jones v. Harrington, 829 F.3d 1128,1142 (9th Cir. 2016)

(internal quotation marks and alterations omitted (citing

Fulminante, 499 U.S. at 296)).
30 MARTINEZ V. CATE

The State’s arguments that the admission of the

statements did not prejudice Martinez do not soothe our

doubt. First, the State argues that “there was overwhelming

evidence of Petitioner’s guilt, including his bragging

confession [to a companion] that ‘I shot this fool, man. I

smoked his ass. Shot that fucking scrap.’” In bringing this

statement up during closing, the government asked and

answered, “[w]hat do gang members do after committing a

crime . . . gang members brag.” But, Martinez’s boasts say

nothing about whether he shot in self-defense. In fact,

Martinez did not even do any shooting – Lopez did –

meaning that Martinez’s entire statement could be empty

bragging, and we think it entirely reasonable that a jury could

so conclude. In other words, we do not think the bragging is

“overwhelming evidence” that Martinez did not feel

threatened.

The prosecution’s other evidence that Martinez or Lopez

did not see a gun is weak. The prosecutor argued that Lopez

had time to come up with the story about seeing the revolver,

that Lopez’s statements to Detective Navarro were

inconsistent, that Jair Garcia said he did not have a gun on the

911 call, and that no gun was found on the Garcia brothers. 

The prosecutor brought up these arguments at the same time

he was repeating Martinez’s statements in closing. But in the

absence of Martinez’s statements, the governments rebuttal

of self-defense is considerably weaker. For one, the time that

elapsed before Lopez told the detective that he saw a gun is

not evidence, it is an argument. Further, the fact that there

was no gun does not rebut the claim that Lopez or Martinez

thought they saw a gun, or that the Garcia brothers threatened

to shoot them. Detective Navarro testified that Lopez told

him he felt it was going to be “them or him” and was “scared

for is life.” Although the State introduced testimony from
MARTINEZ V. CATE 31

one of the companions, who told the jury that he did not see

a gun on the Garcia brothers, the perceptions of that witness

were seriously undermined because he also said that Jefte

turned and ran when he saw Lopez’s gun, but the autopsy

showed that Jefte was facing Lopez when he was shot. In

sum, all of the other evidence rebutting self-defense is

equivocal or circumstantial. Martinez’s improperly-admitted

statements were clear and damning; they were the backbone

of the State’s argument against self-defense. Thus, we have

grave doubts that their admission did not affect the verdict.5

CONCLUSION

It is clear that Navarro ignored Martinez’s express,

unequivocal, and repeated invocations of his right to counsel

and badgered him into waiving his rights. Accordingly, we

REVERSE and REMAND. Unless the State of California

elects to retry Martinez within a reasonable period of time to

be determined by the district court, the district court shall

issue the writ granting Martinez’s habeas petition.

5 We are not convinced by the State’s speculation that admission of

Martinez’s statements somehow helped him because it allowed him to

make a voluntary intoxication argument. There was no instruction about

voluntary intoxication and no discussion of it in closing argument.