F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A N I E L J

. M A R

T I N E Z , Petitioner-Appellant

,

v.

M A T T H E W C A T E , Respondent-Appellee. No. 15-16433

D.C. No. CV 11-0572 AW I -MJ S

OPI N I ON

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

A rg ued and Submitted F ebruary 7, 2018 San F rancisco, California

F iled September 11, 2018

B efore: Sidney R. Thomas, Chief J udg e, A. W allace Tashima and Morg an Christen, Circuit J udg es.

Opinion by

J u dg e TashimaM A R T I N E Z V

. C A T E 2

SUMMARY *

Habeas Corpus

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

. Martinez ’s habeas corpus p etition challeng ing his California conviction for second-deg ree murder, and remanded.

The panel held that the only reasona b l e interpretation o f what occurred between Martin ez a nd an interrog ating detective is t hat the detective continued interrog ating Martinez a ft e r Martinez had c learly – and repeatedly

– invoked his rig ht to counsel, and that the detective badg ered Martinez into waiving that r ig ht. The panel held t h at the California Court of Appeal’s conclusion that the detective

ceas e d i n terrog ation and that Martinez ’ s waiver of the rig ht
to counsel w as valid is an unreasonable a pplication o f Miranda v. Arizona
, 384 U .S. 436 (1966); Rhode I s l and v

. Innis, 446 U .S. 291 (1980); Edwards v. Arizona
, 4 51 U.S. 477 (1981); and related cases. I n lig ht of the Edwards violation, the panel further held that no reasonable c o u r t could have concluded that the g overnment overcame its burden to show that Martinez ’s subsequent waiver w as valid. The p anel h ad
g rave d o ubts that the improper admission o f Martinez ’s statements did not affect the verdict.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A R T I N E Z V

. C A T E 3

COUNSEL

Gary P. B urcham (arg

ued), B urcham & Z ug man, San Dieg o, California, for Petitioner-Appellant.

B rian R. M e an s (arg

ued), Deputy Attorney General; Tami M. Krenz in, Supervising Deputy Attorney General; Michael P. F arrell, Senior Assistant Attorney G e n eral; Xavier B ecerra, Attorney General; Office of th e Attorney General, Sacramento, California; for Respondent-Appellee.

OP INION

TASHI MA, Circuit J udg e:

Once a suspect i n vokes his rig ht to counsel during custodial interrog ation, the officer must immediatel y cease questioning and honor that rig ht. I n this habeas proceeding

, we hold that the interrog ating officer failed scrupulo u sly to honor the suspect’s rig ht a n d that the Calif

o r n i a C ourt o f Appeal unreasonably a pplied clearly established law in concluding otherwise. F urther, we h ave g r a v e doubts as to whether the admission into evidence of the suspect’s improperly

- obtained statements influenced the jury ’s verdict. W e thus reverse the district court' s denial of habeas relief, a nd remand for further proceeding s consistent with this opinion.M A R T I N E Z V

. C A T E 4

B A C K G R O U N D

I. F actual Background

A. The Shooting

On December 8, 2005, Petitioner Daniel Martinez a nd Pablo L o pez had a neig h

borhood confrontation with J efte a nd J air Garcia that left J e f

te dead from a g

u nshot wound. 1

There a re differing a c counts o f the shooting

, but the basic facts are as follows. Martinez and L opez ’s neig h borhood included residents claiming membership in the rival Norteño and Sureñ o g ang s. The Garcia brothers claimed Sureño membership; Martinez and L o pez alleg edly claimed Norteño. On December 8, 2005, Martinez and L opez knocked on a companion’s door and retrieved a shotg un stored there. One companion testified that Martinez as ked for “the g aug e,” referring to the shotg un. L opez put the g un be h ind his back and started to walk down the driveway with Martinez

. Two compani o n s from the house followed L opez and Martinez

. Halfway down the driveway

, M ar tinez and L opez started

ex c h a ng ing words with the Garcia brothers, who were across the street. T h e b rothers accused L opez and Martinez o f tag g ing “YGL ,” wh i ch stands for “Young Gang ster L ocos,”

on the sidewalk outside of the b rothers’ house. J efte took his shirt o ff a

nd walked to the mid d l e o f the street. B oth o f L opez and Martinez ’s companions thoug ht that J efte wanted
to fig ht. Additionally

, one of the companion s t e s t ified that J air threatened, “I ’ll p eel y our g uy s’ cap back,” me an ing he

was g oing to shoot at them, but there was no consensus about

1 T h e f acts are ad o p ted f

ro m th e Calif

o rn ia Co u rt o f A

p p eal’ s d ecisio n

an d , p u rsu an t to 2 8 U.S.C. § 2 2 54 (e), p resu m ed to b e tru e.M A R T I N E Z V

. C A T E 5

w h e t h e r the Garcia brothers referred to having a g u n

. Th e two c ompanions’ recollections a lso d iffered as to whether Martinez said any

thing to J efte or L opez while J e f t e w a s shirtless in the middle of the street. One companion testified that J air reached behind h is b a c k during the confrontation. The other companion did n o t h ear the brothers threaten to shoot at L opez and Martinez

, and did not see a weapon on the Garcia brothers. L opez eventually produce d t h e shotg un from b ehind his back and almost immediately fired i t once. J efte was facing the weapon when h e was shot. One of the companions testified that Martinez had told L opez to “[ j] ust do it” rig h t before L o pez f ired. Martinez

, L opez , and their two companions ran.

Afterwards, Martinez hid o u t a t a nearby house a nd brag g ed that he had “shot th i s f o ol, shot this scrap.” 2 Two day s later, the police arrested Martinez

.

B. The Interrogation

On D ecember 10, 2005, at approx imately 7 : 0 0 p.m., Detective Navarro interrog ated Martinez

. I n the interview
room, D e t ec tive Navarro uncuffed Martinez

, g ot him some water, took some biog raphical information and said,

I w a nt to talk to y ou about the shooting l a s t

n i g ht o r two nig hts ag o

. . . . I k n o w w h at happened already OK

. . . . I r ea l l y want to g et y our side of the story

. I only have o ne side of the story

rig ht now. OK. UH from the
g uy s across the street, the Sureños.

2 “ Scrap ” m ay

b e a d ero g ato ry

term f o r Su reñ o m em

b ers.M A R T I N E Z V

. C A T E 6

Detective Navarro then read Martinez his Miranda rig hts.

I mmediately after h earing his Miranda rig ht s , Martinez asked, “I can have an attorney ? ” Detective Navarro c larified whether Martinez wanted an attorney and Martinez stated, “I would like to h ave an attorney .” W ithout a break, Detective Navarro asked Marti n e z i f he a lready had an attorney (y es), what h is attorney ’s name w as (Percy ), whether Martinez h ad already s p o ken to Percy (no), and whether Martinez would talk “but wi t h a n attorney present? ” To the last question, Martinez replied “y eah [ ] cuz [sic] I don’t know much about the law.” Detective N avarro then questioned Martinez about Martinez ’s father’s full name. After Martinez answered, the following interaction took place:

MARTINEZ : Alrig ht. I ’m willing to talk to
y ou g uy s uh b u t just I would like to have an attorney present. That’s it.

NAVARRO: Y eah, I don’t k now if w e could
g et a hold of him rig ht now.

MARTINEZ : Yeah.

N AV A R R O: All I wanted was y our side o f the story

. That’s it. O K. So, I ’m pretty much done with y ou then. Um, I g u ess I don’t know another option b ut to g o ahead and book y ou. OK. B ecause

MARTINEZ : W ha t am I being booked under?M A R T I N E Z V

. C A T E 7

NAVARRO: Y our 3 go ing to be booked for murder because I only g o t one sid e of the story . OK.

MARTINEZ : B ut how how’s he g oing to g o about that. I f w e talk, once y ou g et a hold o f
my uh attorney

.

NAVARRO: That’s t h e thing

, I don’t know when were g oing to g et a hold of him. May be I don’t know when he’s g oing I don’t know when y our g oing to call him.

MARTINEZ : I have to g e t a hold of him.

NAVARRO: Huh?

MARTINEZ : I have to g e t a hold of him?

NAVARRO: Yeah.

M A R T I N E Z : Y o u g u y s d o n ’ t (unintellig ible)

N AV A RRO: No. No, y our g oing to have t o call him and it’s g oing to have to be from jail.

3 T h e tra n sc r i p t o f th e in t erro g atio n co n t ain s sev eral ty p o g rap h i cal

erro rs. Wh ere w e q u o te ex ten s iv e po rtio n s of th e tran scrip t, w e rep ro d u ce th e in terro g atio n as reco rd ed

, rath er th an en terin g “ [sic]” af

ter each o n e. W h ere th e tran scr i p t in clu d ed [sic] w e h av e o m itted th e d esig n atio n f or read ab i lity

.M A R T I N E Z V

. C A T E 8

After Martinez ex pressed frustration about the situation, he asked the detective, “what did y ou want t o t a l k to me about? ” At which point Detective Navarro said that he wanted to talk about t h e s h o oting and asked if Martinez “want[ s] the attorney ,” or whether Martinez did n ot care. Martinez and Detective N a v a rro went b ack and forth a bit, with the d etective say ing he wanted Martinez ’s side o f the story and Martin e z s a y i n g he did not want to g o to jail a nd that he would tell the truth if that “help[ ed] [ him] walk
away .”

W ithout an attorne y p r esent, Detective Navarro continued
to interrog ate Martinez

. At trial, Detective Navarro testified that he asked Martinez whether Martinez felt intimidated by J efte during the confrontation, and w hether Martinez saw a g un on J efte. Detective N avarro testified that Martinez said he did not feel threatened and did not see a g un.

II. P rocedural Background

A. Trial

Martinez d id not file a p re-trial motion to suppres s the statements from Detective Navarro’s interrog ation. I nstead, during trial, the defense objected t o a dmission of the
statements on F ifth Amendment g rounds and the t ri al judg e h e l d a sidebar with counsel to discuss the matter. The tri al judg e concluded that althoug h Martinez invoked the rig ht to counsel, Navarro ceased interrog ation. Then, in the ey es o f the trial judg e, Martinez reinitiated conversation a nd voluntarily waived his previously

- asserted rig h t t o counsel. Specifically

, the trial j u dg e determined that questions about Martinez ’s attorney and a b o u t Martinez ’s father were not improper questions after Mar t i nez ’s invocation, but wereM A R T I N E Z V

. C A T E 9

instead part of the booking process. Fu r t her, the trial judg e concluded that nothing that D etective Navarr o s a id a fter Martinez ’s invocation was a “th r e a t” that “would invalidate [ Martinez ] chang ing his mind o n the invocation.” The trial judg e did hig hlig ht Detective Navarro’s statement that he was g oing to book Martinez “because [ he] only g ot one side o f the story ” as the most “ c r itical” issue that “mig ht jeopardiz e” admission of Martinez ’ s responses. Nonetheless, t h e j u dg e concluded that the q

uestions after Martinez ’s invocation were valid, and that Martinez ’s chang e of heart was voluntary

. The trial judg e refused to suppress the statements.

During closing arg u me n t, the prosecution cited Martinez ’s responses to Detective Navarro’s q u estioning to rebut a self-defense instruction. The prosecution arg ued that Martinez ’s statements that “he didn’t see a g un” and “didn’t feel threatened” were “critical” to “self-defense and dropping a murder [ conviction] to manslaug hter . . . .”

The jury convicted Martinez of second-degree mu r d e r a nd active g ang participation but “also ex pressly f ound that Martinez ‘did act intentionally

, deliberately and with
pre m e d itation.’” Therefore, the jury did not accept Martinez ’s self-defense arg ument. Martinez was sentenced to 40 y ears to life imprisonment.

B. Direct Appeal

On direct a ppeal, Martinez challeng ed the admission o f the statements. The California Court o f Appeal reviewed the inter v i e w transcript a

nd affirmed the trial court’s ruling that Mar t i nez ’s statement was admissible. T he court focused its

a n a ly sis on whether D etective Navarro telling Martinez thatM A R T I N E Z V

. C A T E 10

he would need to contact his lawy er from jail rendered his waiver involuntary

.

F irst, citing Rhode Island v. Innis
, 446 U.S. 291, 3 01 (1980), the C o u r t o f Appeal found that “once Navarro clarified that Martinez was willing to talk to him, but wanted

an attorney p resent, interrog ation ceased. The questions Navarro a s k e d c o n c e rning Martinez ’s father did n o t constitute interrog ation.” Second, the court r easoned that “ [ i ] t was Martinez who then turned the subject b a c k t o having an attorney present; we see nothi n g deceptive or coercive in Navarro’s response that he did n o t k n o w if they could g et h o l d of Martinez ’s attorney .” Third, the court interpreted Martinez ’s “question about what he was being booked f or” a s

a reinitiation of the conversation with Det e c t ive Navarro. F ourth, the court concluded t h a t “ [ t] here was nothing inappropriate or misleading in Navarro’s telling Martinez that Martinez would have to call his lawy e r from jail.” Fi n a l l y , the court n oted that “[ a] fter Martinez asked w hat Navarro wanted to talk about, Navarro proceeded to make certain that Martinez was waiving his rig ht to counsel.” The court did not

ex p licitly d iscuss whether it considered Martinez ’s w aiver voluntary , knowing , and intellig ent, but this must have been its conclusion.

The California Supreme Court summarily den ied Martinez ’s petition for review.

C. Habeas P roceedings

Martinez filed a petition for w rit of habeas corpus in the Stanislaus County Superior Court, which denied the petition, “find[ ing ] that all the issues raised i n the w rit were appropriately considered by the [ California Court of Appeal]

,M A R T I N E Z V

. C A T E 11

or if not, could have been.” Subsequent petitions to the California C o u r t of Appeal and California Supreme Court were summarily

dismissed.

Martinez then filed his f ederal habeas petiti o n

. A
mag istrate judg e issued F inding s and Recomm e ndations, recommending that the district court deny Martinez ’ s c l aim that “his M

iranda rig hts we r e violated based on continued questioning a f

t e r he invoked his rig ht to a n attorney .” I n recommendi ng that the district judg e deny the petition, the
mag istrate judg e noted that the conversation b etween Martine z and Detective Navarro “could be interpreted in multiple way s.” On one hand, the mag istrate judg e wrote that

a “fair-minded jurist could find that the officer continued to interrog ate” Martinez a ft er he had invoked his rig ht to counsel because “the o ffice r m a y have used the coercive
pressure of booking Petitioner in jail to obtain a waiver o f his rig ht to counsel.” O n the other hand

, t h e F inding s a nd Recommendations concluded that “the state court’s determination is equally plausible.

. . . [ T] elling Pe titioner that if the interrog a tion were over, h e w o u l d be booked is informative in nature, a

nd likewise may not be considered a s [ continued] interrog a tion.”

Somewhat contradicting th e c onclusion that the state court’s determination was “equally plausible,” the mag istrate judg e a l s o “ note[ d] that the officer did more here than just inform Petitioner that he was g oing to be booked.” I n doing
so, the mag istrate judg e recog niz ed that the officer may have “create[ d] the potential implication that if Petitioner was to talk then he mig ht not be booked.” Nevertheless, b e ca use “fairminded jurists coul d disag ree” over the interpretations, the mag istrate judg e recommended deny ing the petition, but
g ranting a Certificate of Appealability

.M A R T I N E Z V

. C A T E 12

The district c o urt adopted the F inding s a nd Recommend a t i ons d eny ing the petition and issued a Certificate of A ppealability as to Martinez ’s Miranda c laim.

S T A N D A R

D O F R E V I E W

W e review de novo the district cour t ’ s denial o f Martinez ’s habeas petition, and w e review the district court’s finding s of fact for clear error. See H urles v. Ryan
, 752 F .3d 768, 777 (9th Cir. 2014).

W h en, 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 a nd injurious effect’ standard set forth in Brecht v. Abrahamson

, 507 U.S. 619 (1993).” Fry v

. P l iler

, 551 U.S. 112, 114 (2007). This is true even “when the stat e appellate court failed to recog niz e the e rror and did not review it for harmlessness.” Id. ; see also Larson v. Pa l m a t e e r , 515 F .3d 1057, 1064 (9th Cir. 2008).

“I n c o nducting our review, we look to the last reasoned
state-court decision.” Van Lynn v

. Farmon
, 3 4 7 F

. 3d 735, 738 (9th Cir. 2003). Here, the parties ag ree that the relevant decision is the California Court of A ppeal’s decision on direct appeal.

D I S C U S S I O N

Martinez ’s habeas p etition is g overned by the provisions of the A ntiterrorism a

nd Effective D eath Penalty Act of 1996 (“AEDPA”), Pub. L

. No. 104-132, 110 Stat. 1214 (1996). AEDPA “restricts the circ u m s t ances under which a federal habeas court may g rant relief to a state prisoner whose claimM A R T I N E Z V

. C A T E 13

h a s already been ‘adjudicated on the merits in State court

. ’ ” Johnson v. W

illiams

, 568 U.S. 2 89, 2 9 2 (2013) (quoting 28 U.S.C. § 2254( d ) )

. Under AEDPA, this court may only
g rant habeas relief if a state co u r t ’ s decision was (1) “contrary

to, or involved an u nreasonable application of, clearly established F e deral law, as determi ned by the Sup r e m e C o u rt of the U nited States,” or (2) “based on an unreasonable determination of the facts in l i g h t of the evidence presented in the State court proceeding .” 28 U .S.C. § 2254(d).

W e first c onsider whether to r eview Martinez ’s claims de

n o v o or whether to accord the California court the r equired deference. Decisions that are not “adjudicated on the merits”

are not subject to AEDPA deference. See Johnson

, 568 U.S.
at 2 92. At oral arg ument, there was some d i scussion about whether the state court ` reached the m e r i ts of one o f Martinez ’s arg uments

– namely

, that Navarro c o n t inued interrog ation b y telling Martinez that he would be b ooked because he was not tal king

. B ut, Martinez h ad never previously asserted that the state c o urt failed to adjudicate his claims o n the merits and thereby abandoned the issue. See Kno w l e s v. M

irzayance
, 556 U.S. 1 11, 1 21 n.2 (2009). Reg ardless, there is a strong presumption that the California C o u rt of A ppeal reached the merits of Martinez ’s Miranda claim and Martinez did n o t r e but this presumption. See Johnson

, 568 U.S. at 301–02

. F urther, just because the Ca l i f ornia Court of A ppeal did not ex plicitly state that the booking c o m m ents were n ot interrog ation, 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 c e ased .”M A R T I N E Z V

. C A T E 14

M a rtinez also asserts that we should review his lega l claims de no v o because the California Court of Appeal’s decision w as based on an unreasonable deter m i n a tion o f facts. W e think the court r e a s o nably determined the facts. Martinez contends that the state court’s “ foc u s w a s i m p r operly narrow” because it d id not ex plicitly discuss Nav a rro’s statements about b ooking Martinez b ased on his unwilling ness to talk. However, the Court of Appeal included the relevant p o rtion of the transcript in its dec i sion and presumptively

read it. That the Court of Appeal did not discuss Navarro’s statements a b o ut booking Mart i n ez in its analy sis section is not a f a c t u a l error; rather, the court made

a leg al determination that those statements did not rise to the level of interrog ation. W e there f o re review the Court o f Appeal’s decision with the requisite AEDPA deference.

I. Miranda and its P rogeny

Miranda v. Arizona and its prog eny provide the clearly established law upon which Martinez ’ s peti t ion is based. Among t h e many safeg

uards that Miranda established for criminal defendants, one is the ex press “ rig ht to have counsel present” during a custodial interrog ation. 384 U.S. 436, 469 (1966). Miranda d escribed t h is rig ht as “indispensable” to the p rotection of the F ifth Amendment privileg e ag a inst selfincrimination. Id.

B u ilding on Miranda

, Edwards v. Arizon a set out the analy sis that courts must f ollow when a d efendant has invoked h is rig ht to c ounsel. 451 U.S. 477, 482–86 (1981). F irst, Edwards ex plained that “waivers of counsel must not only be v oluntary

, but must also constitute a knowi ng a nd intellig ent relinquishmen t o r abandonment of a known rig ht

or privileg e.” Id. at 482. Edw a r d s then held that “a validM A R T I N E Z V

. C A T E 15

w a i v e r of that rig h t cannot be established by showing onl y that [ a suspect] responded to further police-initiated custodial interrog ation.” Id. at 484. F inally

, E dwards established the rule that once an accused invokes the r ig ht to c ounsel, he “ is
not subject to further interro ga t ion by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, ex c hang es, o r conversations wi t h t h e police.” I d. at 484–85. A rizona v

. Roberson then articulated some of the reasoning b e h ind the Miranda and Edwards rule:

[ I ] f a suspect believes that he is not capable o f underg oing such questioning w ithout advice of c ounsel, then it is presumed that any subsequent w aiver that has come at the authorities’ behest

. . . is itself the pr o d u ct o f the i n herently compelling pressures and not the purely voluntary

choice of the suspect.

486 U .S. 6 75, 681 (1988) (internal quotation marks omitted). This line o f cases “ thus established another prophy lactic rule desig ned to prevent p olice from badgering a defendant into waiving his previously asserted Mir a n d a rig hts.” M

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

The prophy lactic rule set out in Edwards is limited by two principles. F irst, the suspect can counteract hi s o wn invocation of t he rig ht to c ounsel by “initiat[ ing ] f urther

c o m m u n i c a t i o n , e xc h a

ng es, or c o n versations with the polic e

. ” Ed w a rds

, 4 51 U.S. at 485. A suspect “evinc[ ing ] a willin gn e s s and a desire for a g eneraliz ed discussion about the investig ation[ ,] ” including a sking “what is g oing to happen to m e now? ” is sufficient to initiate f urther discussions with the police. See Oregon v. Bradshaw

,M A R T I N E Z V

. C A T E 16

462 U.S. 1039, 1 045–46 (1983) (plurality opinion) (Rehnquist, J .). B ut, initiating further discussions is not sufficient to a dmit a d efendant’s responses. “[ I ] f the accused invoked his rig ht to counsel, courts may admit his responses t o f urther questioning only on finding that he (a) initia t e d further discussions with the police, and (b) knowingl y a nd intellig ently waived the rig ht 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 rul e i n E d wards does not apply to all interactions with the police

– it applies only to custodial interrog ation. Edwards

, 451 U.S. at 486. I n other words, not all communic a tions with the p olice after a suspect has invoked the rig ht to c ounsel rise to the level of interrog ation. “‘Interrog a tion,’ as conceptualiz ed in the Miranda o p i nion,
must r eflect a measure of compulsion above and bey o nd that inherent in custody itself.” Rhode Island v. Innis
, 446 U.S. 291, 300 (1980). “[ T] he Miranda safeg uards come into play whenever a p erson in custody is subject e d t o either ex press questioning or its functional equivalent.” Id. at 300–01.

II. Martinez’s Miranda C laim

The p arties ag ree that Martinez unequivocall y i nvoked his rig h t t o counsel. W e therefore r eview whether Detective Navarro continued interrog ating Martinez in violation o f Edwards

, and whether Martinez ’s statements are nonetheless admissible. W e hold that the only reasonable interpretat i o n of what occurred between Navarro and Martinez i s that Navarro continued interrog a t i ng Martinez after the suspect had clearly

– and repeatedly – invoked his r i gh t to counsel,

a n d t h at Navarro badg ered Martinez into waiving that rig ht. The California Court of Appe al’s conclusion that NavarroM A R T I N E Z V

. C A T E 17

ceased interrog at i o n and that Martinez ’ s waiver of the rig ht
to counsel w as valid is an unreasonable a pplication o f Miranda

, Innis
, Edwards

, and related cases. I n lig ht of the Edwards violation, we furthe r hold that no r easonable court could have concluded that the g overnment o v ercame its burden to show that Martinez ’s subsequent waiver was valid.

A. Detective Navarro Continued Interrogation

1. Express Questioning

As note d a bove, Innis defined “ interrog ation” as either

ex p ress questioning or its f unctional equivalent. 446 U.S. at 300–01. W e first review whether Martinez was subject to

ex p ress questioning that rose to the level of interrog ation.

Innis r e c o gniz es that not all questions constitute interrog ation. Specifically

, Innis e x empts words and actions that are “normally attendant to a rrest and cust o d y ” f

rom the definition of interrog ation. Id. at 301. Thus, “[ t] he so-called ‘booking questions e x ception’ e x empts ‘from Miranda ’s
coverag e [ ex press] questions to secure the biog raphical data
necessary to complete b ooking or pretrial services.’” United States v. W

i l l i a ms , 8 42 F .3d 1143, 1147 (9th Cir. 2 016) ( q u o t ing Pennsylvania v. M uniz
, 4 96 U.S. 582, 6 01 (1990) (plurality opinion)). Q uestions about the defendant’s “name, address, heig h t, weig ht, e y e color, date of birth, and current ag e” fall w ithi n t h e M

i randa ex c eption. Muniz
, 496 U.S. at 601.

I mmediately after Martinez requested an attorney , Detective Na v arro a sked the defendant q uestions about whether he already had a lawy e r. A lthoug h these are ex press questions, it is reasonable to conclude that the questions wereM A R T I N E Z V

. C A T E 18

“ a t tendant to arrest” and that a reasonable officer w ould n o t have known that this line of q uestioning was “likely

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

L ik ewise, the Court of Appeal’s conclusion that asking about the name of Martinez ’s father was not interrog ation is reasonable because Detecti v e N avarro could have just been eliciting biog raphical information. There f o re , a fairminded jurist could c onclude that these ques t ions were attendant to booking

.

2. Functional Equivalent of Express Questioning

Nex t, we turn to whether Detective Navarro’s statements

a fter Martinez invoked h is rig ht to counsel constitute d t h e functional equivalent of ex press questioning

. The functional equivalent of interrog ation is d e fined as “any words o r actions on t h e part of the police

. . . that the police should know are r easonably likely to e licit an incriminating response from the suspect.” Id

. This definitio n “focuses p rimarily
upon the perceptions of the suspect, rather than the intent o f the police,” b ut is an objective sta n d ard such that the police “cannot be held accountable f o r the unforeseeable r esults o f their words or actions.” Id.

After Detective N avarro told Martinez that he was not

sure if h is lawy e r was available, Detective Navarro stated, “[ a] ll I wanted was y our side o f the story

. That’s it. OK. So, I ’m pretty much done w ith y o u then. Um
, I g uess I don’t know another option but to g o ahead and book y o u

. OK. B ecause

. . . .” Martinez c ut in, “[ w] hat am I being b ooked under? ” to which Navarro r eplied “[ y ] our [ sic] g oing to be b o oked for murder because I only g ot one side of the story

. OK.”M A R T I N E Z V

. C A T E 19

The California Court of Appeal did not ex plicitly analy z e whether Detective Navarro’s two statements a b o u t booking Martinez constituted interrog ation. I nstead, the Court o f Appeal stated, “[ i] n our view, o nce Navarro clarified t h at Martinez was willing to talk to him, b ut wanted an attorney present, interrog ation c eased.” I n the absence of any reasoning from th e s t a te court, the mag istrate judg e’s F inding s and Recommendations attempted to provide t h e best justification for the California cour t ’s conclusion that the
statements about booking were not interrog ation: “telling Petitio n e r t hat if the interrog ation were over, he would be booked is informat i ve in nature, and likewise may n ot be considered as interro gation.” Under this justification, Detective Navarro’s statemen t s w o u ld b e “attendant to arrest” and ex empted from the definition of interrog ation. However, this is an u n reasonable application of the law to t h e f a c ts because it d oes not reflect the correct s t a n d ard for “interrog ation” because it fails to consider the likely effect o f the words on the listening suspect – parti c u l arly the words “[ y ] our [ sic] g oing to be booked for m u rder b ecause I only
g ot one side of the story .” Any reasona b l e o f ficer would know that these particular statements abo u t booking would likely elicit a response.

W e think the only reasonable interpretation of (1) “all I wanted was y o ur side of the story

. That’s it. O K. So, I ’ m pretty much done with y ou then. Um, I g uess I don’t know another option but to g o a h e a d and book y ou. OK. B ecause,” and ( 2) “y ou r [ s i c ] g oing to be b ooked for murder because I only g ot one side of the story

. O K,” is that the statements, in
contex t, c onstitute interrog ation. Ag ain, the mag istrate judg e summed up the issue succin c t l y : “the officer did more here
t h a n just inform Petitioner that h e w as g oing to b e booked. The o fficer’s statements

. . . crea t e the potential implicationM A R T I N E Z V

. C A T E 20

that if Petitione r was to talk then he mig ht not be booked.” Our only issue with the mag istrate judg e’s observation is the word “potential” – we would replace it with “inescapable.”

The clearest evidence of the interrog ating n ature o f Detective N avarro’s st a t e ments is their plain lang u ag e. B y stating

, “y our [ sic] g o ing to be booked for murder because I only g ot o ne sid e of the story , ” Detective N avarro causally li n k s Martinez ’s assertion of his constitutional rig ht to the detective’s decision to book t h e s uspect for murder. The obvious implication of that linkag e is that if Martinez were to g ive his side of the story , by waiving his just-invoked rig ht to counsel, he will not be b ooked, o r not be booked for murder. At the v ery least, the detective should know that his statement would be perceived this way a nd wa s “ r e a sonably likely to elicit a n incriminating r esponse.” See I nnis
, 446 U.S. at 302.

F urther, Detective Navarro’s statements to Martinez were not definitive: “I m [ sic] p retty much done with y ou then;” a nd

“ I guess I don’t know another option but t o g o ahead a nd book y ou.” (Emphasis added.) Say ing that y ou are “pretty much” done with someone or that y ou “g uess y ou don’t know another option” strong ly implies that y ou are not completely done with someone or that no o t h e r option e xists

. The obvious implication is that Detective Navarr o only had to book Martinez if he di d n o t g ive his side of the story

. Conversely

, Navarr o i m plied that, if Martinez g ave his side of the story , Navarro mig ht have alternative options to booking the suspect. 4

4 Detect i v e N av arro ’ s statem en ts are also im p ro p er i n th at th ey im p lied Martin ez w o u ld b e p u n ish ed f o r assertin g h is co n stitu

tio n al rig h t to co u n sel. S

ee D o yle v. O h io
, 4 2 6 U.S. 6 1 0, 61 8 (1 9 7 6 ) (“ w h ile it is tru e th at th e Mira n d

a w arn in g s co n tain n o ex p ress assu ran ce th at silen ce w i l lM A R T I N E Z V

. C A T E 21

The State a

rg ues that Detective Navarro telling Martinez that he was booking the suspect, or that he had no o ption but
to book the suspect, was merely “attendant to a r r est a nd custody ,” and “ inform[ e d] [M a r t i n e z] o f c ircumstances which contribute[ d] to an intellig ent ex ercise of his judg m en t

. ” However, this arg u ment ig nores the causal link in Navarro’s
statements. Tell i n g M artinez that he was being b ooked because he did not g ive his side of the story is different than

an officer setting out the charg es and the evidence ag ainst 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 seiz ed 6 0 0 p ounds of cocai n e , t h at the suspect was in se r i o u s trouble, and that the detective would like to talk to the suspect a fter the suspect h a d s p o k en to an attorney , was not interrog atory ); s e e also Shedelbower v

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

The State also arg ues that Detective Navarro’s statements about booking Martinez were just informati o n a l and were “recounting w hat had o c c urred previously in their conversation.” B ey ond not offering any p ossible ex planation about why Navarro would need to recount t h e conversation, this interpretation is also unreasonable because it ig nores the causal nature of Detective Navarro’s statements.

W e cannot ig nore the implications of Navarro’s statement because the Innis t e st ex p licitly calls for c onsidering the “perceptions of the suspect, ra t h e r t han the intent of the police.” 4 46 U.S. at 301. Thus, e ven if Detective Navarro only intended to recount what had happened d uri n g the conversation, and in no way thoug ht that he was b o o k i ng Martinez because h e did not g ive a statement, the court must

carry n o p en alty , su ch

assu ran ce is im

plicit”).M A R T I N E Z V

. C A T E 22

still consider how a suspect would pe r c e i ve the statements. The California Court of Appeal fai l e d t o do this. F urther, how a suspect reacts to a state m e n t can provide evidence o f how the suspect perceived the statement.

Here, Martinez responded as if he were bein g a s k e d to g ive a statement, and that by doing so he would be a b l e to avoid booking

. After Navar r o t o ld Martinez “ [ y ]our [ sic]
g oing to be booked for murder because I only g ot o ne side o f the story , ” Martinez responded “how’s he g oing to g o about that. I f we talk once y o u g et a h o ld of my uh attorney .” L ater, Martinez made multiple references to being willing to talk to avoid jail:

MARTINEZ : I just y ou know I ’m tired o f
g oing back and forth to jail. And if that’s the cha rg e I mean y o u g o, y o u don’t g et the choice to g o back and forth y ou know so.

NAVARRO: U h hmm. I t’s u p to y o u

. Do
y ou want to talk or y ou want me to sit down?

MAR TINEZ : Yeah. I mean I ’m willing to talk to y ou, y ou know what I mean but

NAVARRO: W ith the truth?

MA R T I NEZ : Shit, if that’s what helps me walk away

.

NAVARRO: Your y oung man. J ust be honest.M A R T I N E Z V

. C A T E 23

MARTINEZ : Honest, the truth I ’m just try ing to g o t h r oug h this and b e able to w alk home and

NAVARRO: So do y ou want to talk to me so I could sit down or what do y ou want to do?

MARTINEZ : Yeah.

NAVARRO: Ye a h

. OK. You don’t y ou don’t w ant Percy then rig ht n ow? Rig ht? You don’t want Percy ?

MARTINEZ : W e ll, I f

I I mean

NAVARRO: You don’t y o u don’t want an attorney rig h t n ow? Your w illing to talk to me rig h t now? I want to clarify that.

MARTINEZ : Yeah.

NAVARRO: OK.

MARTINEZ : I ’m willing

.

Mart i n e z’s willing ness to talk a fter Detective Navarro’s statements, and Martinez ’s mult i p le references to avoiding jail, sug g est that he perceived Detective Navarro’s statements as sug g estions that he mig ht not be booked if he talked.

B e cause Navarro continued to interrog a te Martinez a fter Mar t i n ez had invoked his rig ht to counsel, Navarro v iolated the clearly -establish e d r u l e from Edwards

. I t was anM A R T I N E Z V

. C A T E 24

unreasonable applica t i o n o f Innis and Edwards to conclude otherwise.

B. Martinez’s Statem ents are not Adm issible

After finding a

n Edwards violation, w e nex t assess

w h ether the incriminating statements were nonetheles s admissible. T o be admis s i b l e , Martinez w ould (1) have needed to initiate further communication with the police, a nd (2) voluntar i l y , knowing ly

, and intellig ently waived his previously -invoked rig ht.

F irst we analy

z e whether Martinez initiated fur t her discussion with Navarro. The g o vernment arg ues that Martinez initiated further conversation by asking

, “ [ w] h at am I being booked under? ” The California Court of Appeal also
sug g ested that Martinez ’s questio n may have “ evinced a willing ness and a desire for a g eneraliz ed di s cu s sion about the investig a tion; it was not merely a n e c e s s ary inquiry arising out of the incidents of the custodial relation s h i p

. I t could reasonably have been interpreted by the o f f i cer a s relating g enerally to the investig ation.” (Quoting Bradshaw

, 462 U.S. at 1045–46.)

No fairminded jurist could interpret Martinez ’s statement

as a re-ini t iation of the conversation. F or one, the

convers a tion between Navarro and Martinez never stopped. I nitiate m ea ns “to b eg in” a nd no reasonable jurist could review the transcript of the i n t eraction between Detective Navarro and conclude that Martinez began the ex c h ang e about b eing booked f

o r murder. Initiate
, Oxford English Dictionary Online (3d ed. 2018). I n fact, Detective Navarro was mid-sentence when Martinez asked his question.M A R T I N E Z V

. C A T E 25

Similarly

, Martinez ’s question “what did y ou want to talk
to me about? ” also came in the same conversation. I n every other c ase 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 terminat e d t he conversation” before the defendant initiated communication “[ s] ometime later”); W

yrick v. Fields

, 459 U.S. 42, 44–45, 47 (1982) (per curiam) (holding that where a d efen d an t was released fro m c u s t ody

, met with counsel, and requested a p o l y g r a p h e x a m i n a t i o n , t h e d e f e n d a n t “ i n i t i a t e d inte rrog ation”). F urther, Martinez ’s question was a direct
response to Navarro’s assertion that he had to book Martinez because h e would n ot talk. The detective’s statements linking Martinez ’s booking to his invocation of the rig ht to counsel, and the d etective’s comments that Martinez would need to call his own attorney from jail are e x actly the ty pe o f badg ering that Edwards was crafted to prevent.

Second, e ven if Martinez did reinitiate, his statements a re not admissible because in lig ht of the Edwards violation it is presumed that Martinez ’s waiver of his rig ht to counsel was invalid. See Roberson

, 486 U.S. at 681. T he California Court of Appeal did not ex p lain its waiver analy sis, simply stating that “Navarro proceeded to make certain that Martinez was waiv i n g h i s rig h t to counsel and did not want to have an attorney , or his attorney , present.”

No fairminded jurist could review thi s r ecord, conclude that the State overcame the Edwards presumption, and hold that Martinez ’s wai v e r was voluntary

. F irst, Martinez ’s
responses to Navarro’s questions in themselves do not constitute a valid w aiver

. See Edwards

, 4 51 U.S. at 484 ( “ [ W ] hen an accused has invoked his rig ht to have cou n s elM A R T I N E Z V

. C A T E 26

present during custodial interrog ation, a valid waiver of that rig ht c annot be established by showing o nly that he responded to further police-initiated custodial interrog ation

even if he has been advised of his rig h ts.”). Nex t, althoug h Navarro told Martinez that it was up to him to decide whether
to talk, the c ontex t of the encounter cannot be ig nored. This happened in the same conversation in w h ich Navarro told Martinez that he was b ei n g b ooked because he would not talk, in the same conversation where Martinez e x p r essed multiple times that he wanted a lawy e r, and in the s ame conversation where Martinez said he was just try ing to avoid
g ett i n g booked. Detective Navarro’s last two statements to Martinez before he finally relented are illustrative:

NAVARRO: Yeah. OK. You d o n ’t y ou do n ’ t want Percy then rig ht now? Rig ht? You don’t want Percy ?

MARTINEZ : W e ll, I f

I I mean

NA V A R RO: You don’t y ou don’t want an attorney rig ht n o w ? Your w illing to talk to me rig h t now? I want to clarify that.

Ma r t i n ez ’ s response under Navarro’s pressure is still equivocal: “[ w] ell, if

. . .” Martinez was still try ing to assert his rig ht to counsel as N avarro peppered him with questions. This is not indicative of a voluntary waiver.

Navarro n e ver honored Martinez ’s invocation of his rig ht
to counsel and kept talking until he g ot the answer he wanted. He never g ave Martinez more than a few moments. U l t i m a t e l y , because custodial interrog a tion never stopped, th e only reasonable interpretati o n of Navarro’s responses toM A R T I N E Z V

. C A T E 27

Martinez ’s invocatio n o f t h e rig h t to counsel is that the detective was “badg e r ing [ the] defendant into waiving his previously asserted M

iranda r ig hts.” H

arvey , 494 U.S. at 350. I n lig ht of the Edwards pr e sumption, the only reasonable conclusion is that Martinez ’s waiver “c[ a] m e at t h e a u t h o rities’ behest

. . . [and] is itself the product o f the ‘inherently compelling pre ssures’” of Navarro’s custodial interrog ation. See Roberson , 486 U.S. at 681.

III. P rejudice

Our conclusion that n o reasonable j u r i s t would have found Martin e z ’ s w aiver valid does n ot 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. a t 637 (internal quotation marks omitted)). “Under this test, r elief is proper only if t h e f e d er al court has ‘g rave doubt a bout w h e t h e r a trial error of federal law h ad “substantial and injurious effect or influence i n d e termining the jury ’s verdict.”’” Id. at 2197–98 ( q u o t i n g O’Neal v

. McAninch , 513 U.S. 432, 436 (1995)).

Martinez contends that the a d m ission of his statements that he (1) did not see a g un on the Garcia brothers, a nd (2) did not feel threatened influenced the ju r y ’ s verdict b e c a u s e t h e y r e b u t t e d h i s s e l f- d e f e n s e a r g u m e n t

. Notwithstanding the admission of the statements, the State
counters that Martinez w as n ot prejudiced because it presented “overw helming evidence” of Martinez ’s g uilt. Additionally

, the g overnment contends that the admission o f the interrog ation statemen t s allowed Martinez to introduce evidence that he was intox icated, which could have lowered Martinez ’s level of intent.M A R T I N E Z V

. C A T E 28

W e at least h ave g rave doubt whether the admission o f Martinez ’s statements substantially affected the jury ’s verdict. During c losing arg ument, the prosecutor stated:

Daniel Martinez two day s later, what critical, critical statement made by Daniel Martinez

, to Detective F rank Navarro, “I didn’t see a g

un. No, I didn’t feel threatened.” Critical
statements made to the detective investig ating the homicide which shoots the al i b i in the foot. This is one of the two participants in the murder who s a y s, “I didn’t see a g un and I didn’t feel threatened.” You must show

em inent threat of death or bodily injury in order to justify shooting and k illing somebody for self-defense.

I magi n e for a second if this instruction was not present. You h eard this referenced at least three times. This was the – this ins t r u ct ion is appl i c able to self-defense a n d dropping a murder to manslaug hter and a manslaug hter to attempt ed voluntary manslaug hter. I t’s a defense.

The p rosecutor continued, arg uing that fear o f some indefinite future harm is not sufficient:

That’s wh y that cannot be recog niz e d as a valid self-defense. You cannot allow people to g o out and kill by say ing a nd ju s tify ing it: I have to. They ’re g oing to g e t me, future harm. That’s why the law’s written the way i t is.M A R T I N E Z V

. C A T E 29

Daniel Martinez said, “I

didn' t see a gun, and I didn’t feel threatened.”

The prosecutor’s focus on r ebutt ing Martinez ’s self defense arg ument, and especially Martinez ’s admission t h at he did not feel threatened, demonstrates how importa n t the prosecutor thoug ht this e vidence was for the State’s case. I n fact, he c a l led Martinez ’ s statements “critical” a nd repeated them twice. I f the prosecutor thoug ht that the s t atements

were c riti c a l f

o r his case, he must have believed that they could h a v e “ substantially sway ed” the jury

. See Sessoms v

. Grounds

, 776 F .3d 615, 630 (9th Cir. 2015) (en banc). F urther, r e turning to an arg u ment in c losing “ag ain and ag ain and telling jurors it was ‘ v e ry important evidence’” bolsters the likelihood that the evidence affected the jury

. See id. ; see also R odriguez

, 872 F .3d at 926 (hig hlig hting the prejudicial effect of the g overnment’s reliance in closing arg ument on a theory first broug ht up during an improper interrog ation).

J ust a s important, “[ t] he prejudice f rom [ 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 evid e n c e ; i t may be the most damag ing evidence that can be admitted ag ainst a defendant.” Garcia

v. Long
, 808 F .3d 771, 78 2 (9th Cir. 2015) (internal quotations and alterations o mitted) (citing Arizona v

. Fulminante

, 499 U. S

. 2 7 9
, 296 (1991)). As such, this court must “[ e] x ercis [ e] e x treme caution

. . . before d etermining that the admission of a confe s s i o n at trial was harmless.” Jones v. Harrington
, 829 F .3d 1128,1142 (9 th Cir. 2 016) (internal quotation marks and alterations omitted (citing Fulminante , 499 U.S. at 296)).M A R T I N E Z V

. C A T E 30

The State’s a

rg uments that the admission of the
statements did not prejudice Martinez do not soothe our doubt. F irst, the State a

rg u es that “there was overwhelming evidence of Petitioner’s g uilt, including his braggi n g

c o n f ession [to a companion] that ‘I shot this fool, m a n

. I smoked his ass. Shot that fucking scrap.’” I n bringi ng this

s t a tement up during closing

, the g overnment asked a n d answered, “[ w] hat do g ang members do after committing a crime

. . . g a n g members brag .” B ut, Martinez ’ s boasts say nothing abou t whether he shot in self-defense. I n fact, Martinez d id not even d o any shooting – L opez did

– meaning that Martinez ’ s entire statement could be e mpty brag g ing

, and we think it entirely reasonable that a jury could

so conclude. I n other words, we do not think the brag g ing is “overwhelming evidence” tha t M artinez did not feel threatened.

The prosecution’s other e vidence that Martinez or L opez did not see a g un is weak. The prosecutor arg ued that L opez had time to come up with the story about seeing the revolver, that L o pez ’s statements to Detective N avarro were inconsistent, that J air Garcia said he did not have a g un on the 911 call, and that no g un was f o und o n the Garcia brothers. The prosecutor broug ht up these arg uments at the same time he was repeating Martinez ’s statements in closing

. B ut in the absence o f Martinez ’ s statements, the g overnments rebuttal of self-defense is considerably w eaker. F or one, the time that el a p s e d before L opez told the detective that he saw a g un is
not evidence, it is an arg ument. Fu r t h e r , the fact that there

was no g un d oes not rebut th e c l a i m that L opez or Martinez thoug ht they saw a g un, or that the Garcia brothers threatened
to s h o o t t h em. Detective Navarro testified that L opez told him he felt it was g o ing to be “them o r him” and was “ scared f o r is life.” Althoug h the State introduced testimony f r o mM A R T I N E Z V

. C A T E 31

one of the companions, who told the jury that he did not see a g un on the Garcia brothers, the perceptions of that witness

were seriously undermi n e d b ecause he also said that J efte turned and ran when h e s aw L opez ’s g un, but the a utopsy

s howed that J efte was facing L opez w hen he was shot. I n

s u m , all of the other evidence rebutting self-defense is equivocal or circumstantial. Martinez ’s improperly

- admitted
statements w ere clear and damning ; they were the backbone of the State’s arg

ument ag ainst self-defense. Thus, we have
g rave doubts that their admission did not affect the verdict. 5

C O N C L U S I O N

I t is cl ear that Navarro ig nored Martinez ’s ex press, unequivocal, and repeated invocations of his rig ht to counsel and badg ered h im into waiving his r ig hts. According ly

, we REVERSE and REMAND

. U nless the State of Califor n i a elects to retry Martinez within a reasonable period of time to be determined by the district court, the district c our t shall issue the writ g ranting Martinez ’s habeas petition.

5 W e are n o t co n v in ced b y th e S tate’ s s p e c u latio n th at ad m i s sio n of Martin ez ’s s tatem en ts so m eh o w h elp ed h im b ecau se it allo w ed h im to

m ak e a v o l u n tary in to x icatio n arg u m en t. T h ere w as n o in stru ctio n ab o u t

v o lu n t ary in t o x icatio n

an d n o d iscu ssio n

o f it in clo sin g arg u m en t.