Arturo Verdin v. Bryan Phillips

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2024
• Docket: 22-55335
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARTURO ROSALES VERDIN, No. 22-55335

Petitioner-Appellant, D.C. No. 2:18-cv-06821-JLS-SP v.

BRYAN D. PHILLIPS, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court For the Central District of California Josephine L. Staton, District Judge, Presiding

Submitted September 11, 2024** Pasadena, California

Before: IKUTA, FRIEDLAND, and LEE, Circuit Judges.

Arturo Rosales Verdin appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition challenging his state first-degree and attempted murder

convictions. Verdin argues that the California state court erred in admitting

statements he made during an August 2007 interrogation because he had invoked his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966). Because the

state court’s decision to admit those statements was neither contrary to, nor an

unreasonable application of, clearly established federal law, we affirm.

“We review de novo the district court’s decision to grant or deny a petition

for writ of habeas corpus.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).

Our review is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). Under AEDPA, a federal court may grant a writ of habeas corpus

only if the state court’s adjudication (1) “was contrary to clearly established federal

law as determined by the Supreme Court,” (2) “involved an unreasonable application

of such law,” or (3) “was based on an unreasonable determination of the facts in light

of the record before the state court.” Murray v. Schriro, 882 F.3d 778, 801 (9th Cir.

2018) (quoting Fairbank v. Ayers, 650 F.3d 1243, 1251 (9th Cir. 2011)).

In August 2007, Detective Sica interviewed Verdin in connection with a

murder investigation. Because of Verdin’s limited English, Detective Barron was

present to serve as a translator. Verdin concedes that he voluntarily waived his right

to silence at the beginning of the interview. But midway through the interview,

Verdin stated, “I’m not gonna answer you anything anymore”—and then

immediately added “I want to talk more with the compa [his co-defendant].” Verdin

claims that his first statement was an unambiguous invocation of his right to silence

after being questioned by Detective Sica.

2 The California Court of Appeal disagreed. It held that Verdin’s statement was

ambiguous because it could “reasonably be viewed as an expression of frustration

or animosity toward Detective Barron,” and not a statement directed toward his

interrogating officer, Detective Sica. The court noted that this interpretation was

supported by Verdin’s pre-statement conduct, namely his growing hostility toward

Detective Barron, who earlier questioned Verdin’s masculinity. It further observed

that Verdin’s statement was an immediate response to Detective Barron’s statement

that he should “answer.” Verdin then filed this habeas petition.

1. Verdin argues that the California Court of Appeal’s determination is

contrary to Jones v. Harrington, 829 F.3d 1128 (9th Cir. 2016). This argument fails

in two respects. First, under AEDPA, we may grant a habeas petition only if the

state court’s determination contravenes Supreme Court precedent, not circuit

precedent, so Jones does not control. See 28 U.S.C. § 2254(d)(1); see also Murray,

882 F.3d at 801 (“[O]ur determination of clearly-established law under AEDPA

must ultimately rest on a Supreme Court holding.”).

Second, in any event, Jones is factually distinguishable, so its interpretation

of Supreme Court precedent is inapplicable to this case. In Jones, the California

Court of Appeal held that the defendant’s clear invocation of his right to silence was

“made ambiguous by statements he made later in the interrogation.” 829 F.3d at

1136. Our court concluded that this determination was contrary to Supreme Court

3 precedent holding that “an accused’s post request responses to further interrogation

may not be used to cast doubt on the clarity of his initial request[.]” Id. at 1138

(citing Smith v. Illinois, 469 U.S. 91, 92 (1984)). However, here, the California

Court of Appeal found that Verdin’s attempted invocation was ambiguous in and of

itself and did not rely on Verdin’s later statements to find his initial statement

ambiguous.1

2. Next, Verdin contends that the California Court of Appeal misapplied

Rhode Island v. Innis, 446 U.S. 291 (1980). In Innis, the Supreme Court held that

an individual in custody who has invoked his right to remain silent cannot be subject

to subsequent “interrogation,” meaning “any words or actions” by police that “the

police should know are reasonably likely to elicit an incriminating response.” Id. at

301. After Verdin purportedly invoked his right to silence, Detective Sica said,

“that’s a mistake.” Verdin contends that statement violated his Miranda rights

because it sought to elicit an incriminating response.

Innis is inapposite because that case involved a defendant who unambiguously

invoked his right to remain silent. In contrast, here, Verdin received his Miranda

rights, waived them, and did not reassert them through an unambiguous invocation.

1 Verdin also argues that the state court erred by relying only on California state authorities and failing to discuss any federal authorities in its opinion. But AEDPA only requires that the state court’s decision not be inconsistent with Supreme Court precedent, not that the decision affirmatively discuss applicable federal law. See Williams v. Taylor, 529 U.S. 362, 383 (2000).

4 Detective Sica was thus permitted to interrogate Verdin, and the California Court of

Appeal did not unreasonably apply Innis by finding that interrogation permissible.

3. Finally, Verdin argues that the California Court of Appeal failed to

recognize a violation of his Miranda rights when he was not given the opportunity

to speak with his co-defendant, Antonio Martinez. Verdin suggests that his request

to speak with his co-defendant, like a request for counsel, should have been

construed as a per se invocation of his Fifth Amendment rights that required an end

to interrogation. But Verdin cites no Supreme Court authority in support of that

proposition, and Miranda does not suggest that a request to speak with non-lawyers

is an invocation of the right to silence. Cf. Fare v. Michael C., 442 U.S. 707, 719

(1979) (request to speak with a probation officer did not invoke Fifth Amendment

rights). The California Court of Appeal thus did not unreasonably apply federal law

by not recognizing a Miranda violation in this respect.

AFFIRMED.