Mark Anthony Bates v. KEN CLARK, Warden

* 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NOT FOR PUBLICATION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
MARK ANTHONY BATES,
Petitioner - Appellant,
v.
KEN CLARK, Warden,
Respondent - Appellee.
No. 08-55849
D.C. No. 3:07-cv-00330-H-BLM
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted February 2, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON and GRABER, Circuit Judges.
Petitioner Mark Anthony Bates appeals the denial of his habeas corpus
petition. He argues that the California Court of Appeal unreasonably refused to
suppress his confession and that admission of the confession was not harmless.
We affirm.
FILED
FEB 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
After Bates was taken into police custody, detectives informed him of his
Miranda1 rights and asked him if he understood them. Bates said he did.
Detectives then questioned Bates about his role in the death of Jose Sanchez. After
the detectives began speculating that Bates and Sanchez had engaged in a fight that
got out of control, Bates replied, “I’m not saying anything right now.” Rather than
ceasing questioning or seeking clarification as to the meaning of “right now,” the
detectives persisted in questioning Bates, who thereafter confessed to killing
Sanchez and told the detectives how he did it. The California Superior Court
admitted the confession over Bates’s objection. The jury convicted him of second-
degree murder. The California Court of Appeal affirmed the admission of Bates’s
confession, concluding that Bates had not unambiguously invoked his right to
remain silent. After exhausting his state remedies, Bates filed a federal habeas
petition. The district court denied the petition but issued a certificate of
appealability on whether Bates had unequivocally invoked his right to silence. We
review the district court’s denial de novo. Arnold v. Runnels, 421 F.3d 859, 862
(9th Cir. 2005).
Bates argues that admission of his confession was an unreasonable
application of clearly established federal law as determined by the Supreme Court,

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and that his habeas petition must therefore be granted. See 28 U.S.C. § 2254(d)(1).
We agree that his statement, “I’m not saying anything right now,” cannot
reasonably be interpreted as anything but a facially unambiguous invocation of the
right to remain silent. See Anderson v. Terhune, 516 F.3d 781, 787 (9th Cir.) (en
banc), cert. denied, 129 S. Ct. 344 (2008); see also Arnold, 421 F.3d at 865. Even
if the words “right now” temporally limited the invocation, the detectives were
under a clearly established obligation at least to seek clarification.
We reject the State’s position that the context in which the statement was
made rendered Bates’s statement ambiguous enough that the detectives could
continue to question him. It is an unreasonable application of Miranda and Davis
v. United States, 512 U.S. 452 (1994), to use context “to transform an
unambiguous invocation into open-ended ambiguity.” Anderson, 516 F.3d at 787.
In fact, the context undercuts the State’s argument. Earlier in the interview Bates
maintained that he lacked knowledge of the homicide, but the statement, “I’m not
saying anything right now,” expressed unwillingness to speak rather than
ignorance. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (invocations of
Miranda rights will be interpreted “as ordinary people would understand them”).
The State also relies on post-invocation actions to demonstrate that Bates’s

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invocation was ambiguous, but such reliance is contrary to clearly established law.
See Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam).
The State next posits that by asserting, “I’m not saying anything right now,”
Bates merely expressed his desire not to affirm or deny the detectives’ hypothesis
about Sanchez’s death. This speculation about Bates’s motives “misses the point,”
because any desire Bates had to evade comment was perfectly consistent with his
unambiguously expressed desire to remain silent. Anderson, 516 F.3d at 788. The
appellate court’s decision to affirm the admission of Bates’s confession was
therefore “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003).
Despite the clear error, we nonetheless conclude that admission of the
confession was harmless. The record is replete with evidence that Bates was the
killer. Forensic evidence included evidence that Sanchez was extremely
intoxicated, lying on his back when he was brutally attacked, his head bashed in.
Bates was blood-spattered and bloody rocks lay nearby Sanchez’s body. There
was a witness to a fight between Bates and Sanchez earlier in the day. All of this
evidence supported the conviction of second-degree murder without resort to the
confession.

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Ironically, the only support for Bates’s self-defense and heat-of-passion
theories was contained in the confession. Further, if Bates had decided to testify to
his state of mind, the confession could have been admitted anyway as
impeachment evidence. Harris v. New York, 401 U.S. 222 (1971). We can
therefore say with assurance that admission of the confession did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks
omitted).
AFFIRMED.

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