Kaveh Kamyab v. Domingo Uribe, Jr. , 504 F. App'x 585 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KAVEH KAMYAB, No. 09-56160
Petitioner - Appellant, D.C. No. 2:08-cv-05557-GAF-
FMO
v.
DOMINGO URIBE, Jr., Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted January 7, 2013 **
Pasadena, California
Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit
Judges.
1. A criminal defendant is entitled to an instruction on an affirmative
defense, but only if he presents sufficient evidence to support that defense. See
*
This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Matthews v. United States, 485 U.S. 58, 63 (1988); Bradley v. Duncan, 315 F.3d
1091, 1098–99 (9th Cir. 2002). To be entitled to an instruction on duress
regarding the threats to his family, Kamyab had to show sufficient evidence that he
had a reasonable belief that the threats against them were both immediate and
imminent at the time the crime was committed. People v. Coffman, 96 P.3d 30,
105 (Cal. 2004). The California Court of Appeal concluded, not unreasonably, that
Kamyab “was not faced with the choice of the imminent death of his family or
executing the requested crime.” People v. Kamyab, No. B187608, 2007 WL
1492257, at *6 (Cal. Ct. App. May 23, 2007). Indeed, “[t]he threats to [Kamyab’s]
family and [his] involvement in the crimes began several weeks before the crimes
took place.” Id. Kamyab “had ample time to formulate a reasonable and viable
course of conduct.” Id. He was therefore not entitled to a duress instruction on
account of the threats to his family. See Coffman, 96 P.3d at 105–06.
2. Officers must cease custodial interrogation when the suspect
“unambiguously request[s] counsel.” Davis v. United States, 512 U.S. 452, 459
(1994) (emphasis added). The California Court of Appeal concluded that
Kamyab’s question about calling his attorney was equivocal. Kamyab, 2007 WL
1492257, at *8. The Court of Appeal noted that a “reasonable understanding of
page 3
[Kamyab’s] question is that he wanted to make sure that he could call a lawyer if
he was going to jail at that moment.” Id. That conclusion was not an unreasonable
application of Supreme Court precedent. See United States v. Younger, 398 F.3d
1179, 1187 (9th Cir. 2005).
AFFIRMED.