Opinion
No. 06-55467.
Argued and Submitted March 9, 2007.
Filed March 27, 2007.
Charles M. Sevilla, Esq., Cleary Sevilla, LLP, San Diego, CA, for Petitioner-Appellant.
Atty. Gen. Cas, Charles C. Ragland, Esq., AGCA — Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. CV-03-00606-RTB/JMA.
Before: GOODWIN, BEEZER, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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 unequivocal 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.