Steven Ray Perridon v. ERNIE ROE, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN RAY PERRIDON,
Petitioner - Appellant,
v.
ERNIE ROE, Warden; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
No. 09-16940
D.C. No. 2:00-cv-01123-LKK-
JFM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted October 4, 2010
San Francisco, California
Before: HUG, RYMER and N.R. SMITH, Circuit Judges.
Steven Ray Perridon (“petitioner”), a California state prisoner, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his jury
conviction for nine robberies (Cal. Penal Code § 211) and one attempted robbery
FILED
JAN 14 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(Cal. Penal Code §§ 211, 664). We have jurisdiction under 28 U.S.C. § 2253.
Because the petition was filed after April 24, 1996, we review it under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, we
may only grant the petition if the state court decision “was contrary to, or involved
an unreasonable application of,” clearly established Supreme Court law or “was
based on an unreasonable determination of the facts in light of the evidence.” 28
U.S.C. § 2254(d); Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009). We affirm.
The California Court of Appeal’s decision that petitioner’s Fifth Amendment
rights were not violated was not contrary to or an unreasonable application of
clearly established Supreme Court law. Police officers must cease questioning a
suspect who has clearly articulated that he wants an attorney present during the
custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). To
invoke the right to counsel, a suspect must clearly and unambiguously request
counsel, which means that he “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” Davis v. United States,
512 U.S. 452, 459 (1994). “[I]f a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the circumstances

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would have understood only that the suspect might be invoking the right to
counsel,” cessation of questioning is not required. Id.
The California Court of Appeal’s decision that petitioner did not clearly and
unequivocally invoke his right to counsel was not contrary to clearly established
Supreme Court law. Petitioner’s statement that he would not answer questions
without an attorney was ambiguous under the circumstances. When detectives
initially contacted petitioner, he voluntarily agreed to answer questions at the
police station. Upon arriving at the station, petitioner twice requested a cigarette,
explaining that he would be more relaxed and cooperative if he could smoke. It
was only after the detective declined and explained that they were in a non-
smoking facility that petitioner mentioned a cigarette and an attorney. See Smith v.
Illinois, 469 U.S. 97, 99, 100 (1984) (indicating that circumstances leading up to
the request may render a request ambiguous). As petitioner’s statement was
ambiguous, the detective could ask him to clarify his demand. See Davis, 512 U.S.
at 459; Anderson v. Terhune, 516 F.3d 781, 789 (9th Cir. 2008). When he did,
petitioner stated, “help me out, I’ll help you out. It’s as simple as that man. . . Give
me a cigarette man, that’s all I’m asking.” After the detective assured him that he
could smoke following the interview, petitioner waived his Miranda rights and
answered the detective’s questions, indicating that his true aim was to secure a

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cigarette in exchange for speaking. Thus, it was not unreasonable for the
California Court of Appeal to conclude that because petitioner did not
unequivocally invoke his right to counsel, the police were not required to end
questioning.
The court declines to address petitioner’s uncertified issue on appeal, as
there is no “substantial showing of the denial of a constitutional right.” See 28
U.S.C. 2253(c)(2); Mendez v. Knowles, 556 F.3d 757, 770 (9 Cir. 2009).th
AFFIRMED.

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