Wenzel v. Early

226 F. App'x 739

Opinion

MEMORANDUM

Footnotes

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George Wenzel appeals the district court’s denial of his habeas petition. The California Court of Appeal correctly identified the relevant legal issue: whether Wenzel declared — through a clear and un equivocal statement — that he wished to invoke his Fifth Amendment right to remain silent. Cf. Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“A state court decision is contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [its] cases.” (internal quotation marks omitted)); see also Davis v. U.S., 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (“Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” (internal quotation marks omitted)); Anderson v. Terhune, 467 F.3d 1208, 1211 (9th Cir.2006) (applying Davis to determine whether a defendant invoked his Fifth Amendment right to remain silent). The state court’s determination that Wenzel’s statements were ambiguous was objectively reasonable. See Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (stating that an “unreasonable application” of federal law occurs when a state court’s application of Supreme Court precedent to the facts of a petitioner’s case is objectively unreasonable).

Wenzel’s motion to expand the certificate of appealability is denied.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.