My Nguyen v. Michael Pallares ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MY LOAN NGUYEN, No. 21-15359
Petitioner-Appellant, D.C. No. 3:19-cv-02952-WHA
v.
MEMORANDUM*
MICHAEL PALLARES,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted May 10, 2022
San Francisco, California
Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.
My Loan Nguyen appeals from the district court’s denial of her 28 U.S.C. §
2254 petition for a writ of habeas corpus. Nguyen argues that incriminating
statements she made during custodial interrogation were admitted at her trial in
violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that she received
ineffective assistance of counsel during plea negotiations under the standard set
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
forth in Strickland v. Washington, 466 U.S. 668 (1984). We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
Federal habeas relief “shall not be granted” to a state prisoner “with respect
to any claim that was adjudicated on the merits in State court proceedings,” unless
the state court decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). While Supreme Court precedent is the
only source of “clearly established” federal law, “we must follow our cases that
have determined what law is clearly established.” Byrd v. Lewis, 566 F.3d 855,
860 n.5 (9th Cir. 2009) (citation omitted).
The California Court of Appeal did not unreasonably apply clearly
established federal law in determining that Nguyen had not unequivocally invoked
her Miranda rights when she stated to police, “I think I shouldn’t say any more
from there.” See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that “if
a suspect makes a reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood only that
the suspect might be invoking the right to counsel,” the officer is not required to
cease questioning); Clark v. Murphy, 331 F.3d 1062, 1070–71 (9th Cir. 2003)
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(holding that a state court was not unreasonable in finding the statement “I think I
would like to talk to a lawyer” was not an unambiguous invocation of the right to
counsel). Nor was the state court unreasonable to rest its determination in part on
Nguyen’s eagerness to continue speaking and volunteering information to police
after her purported invocation. Although a suspect’s post-request responses to
continued interrogation may not be used to cast doubt on the clarity of an
unambiguous invocation, see Smith v. Illinois, 469 U.S. 92, 99–100 (1984),
Nguyen’s statement was not unambiguous.
Nguyen argues that the state superior court unreasonably applied Strickland
and reached a decision based on an objectively unreasonable factual determination
when it rejected her ineffective assistance of counsel claim without holding an
evidentiary hearing. Although Nguyen contends that her defense counsel failed to
explain to her “the intricacies of her case,” she cites no clearly established law
obligating her counsel to provide her with any advice he failed to give. Nguyen
does not dispute that her counsel accurately conveyed the terms of a twenty-year
plea offer made by the prosecution on the morning of her preliminary hearing, or
that he accurately advised that she could face life charges if she rejected the offer.
Because Nguyen did not make out a colorable claim of ineffective assistance of
counsel, she did not meet the threshold requirement for entitlement to an
evidentiary hearing, see Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005), or
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entitlement to relief, see Lafler v. Cooper, 566 U.S. 156, 164 (2012).
AFFIRMED.
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