Paulino v. Castro

• Citation: 371 F.3d 1083
• Decision Date: 14 June 2004
• Docket Number: No. 02-55924.,02-55924.
• Parties: Delbert PAULINO, Petitioner-Appellant, v. R.A. CASTRO, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.3d 1083

Delbert PAULINO, Petitioner-Appellant, v. R.A. CASTRO, Warden, Respondent-Appellee.

No. 02-55924.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2004.

Filed June 14, 2004.

Terri A. Law, Sherman Oaks, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Donald E. De Nicola, Deputy Attorney General, and Stephanie A Mitchell, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-00-03327-DT.

Before: KOZINSKI, O'SCANNLAIN and SILVERMAN, Circuit Judges.

KOZINSKI, Circuit Judge:

Petitioner Delbert Paulino is serving a life sentence, plus one year, without the possibility of parole. A California jury convicted Paulino of kidnapping for robbery in violation of section 209(b) of the California Penal Code, second-degree robbery in violation of section 211, and first-degree murder in violation of section 187(a), for his participation in the events leading to the killing of Aundray Boykins. The California Court of Appeal affirmed Paulino's conviction in an unpublished opinion, and the California Supreme Court summarily denied his petition for review.¹ Paulino petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (1996). Adopting the magistrate judge's report and recommendation in full, the district court dismissed Paulino's petition with prejudice. He appeals. We review de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir.2000).

1. Seven months after Boykins's killing, the Los Angeles Police Department brought Paulino in for questioning. At the police station, Detective Robert Felix elicited a number of inculpatory statements from Paulino regarding his role in a scheme to rob Boykins, which culminated in the fatal shooting of Boykins by one of Paulino's accomplices. Paulino unsuccessfully sought to suppress these statements at his preliminary hearing and again at trial. He asserts that the statements were inadmissible because they were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and that the court of appeal's determination that their admission at trial was proper was objectively unreasonable.² See 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

The parties do not dispute the relevant historical facts as found by the court of appeal:

When appellant [Paulino] was first brought in for questioning, Detective Robert Felix introduced himself and advised appellant pursuant to Miranda v. Arizona. Appellant stated that he understood his rights and wanted to talk. On a printed admonition and waiver form, appellant initialed each of the four admonitions and wrote "yes" next to questions asking whether he understood each of these rights and wished to give up his right to remain silent. He did not fill in the item asking whether he wished to give up his right to speak with an attorney and to have the attorney present during questioning. However, he wrote "I want to talk to Felix" and signed the form.

Detective Felix activated a hidden tape recorder, reiterated appellant's rights to silence and counsel, and asked appellant if he understood. Appellant inquired, "Where's the attorney?" Felix asked if appellant understood the question, and appellant repeated, "Where's the attorney?" Felix explained that there was "[n]o attorney here but if you want one before I ask you these questions I'm gonna ask you, you have a right to do that." Appellant asked, "You mean it's gonna take him long to come?" Felix responded, "Well, I'm just asking you a question, man — do you, do you want to talk to me?" Appellant replied, "Okay, I want to talk to you but I wanna know what's going on." Felix stated that he would explain what was going on, and appellant said, "I want to talk to you Detective Felix."

People v. Paulino, No. B118902, at 2-3(Cal. Ct.App. June 2, 1999) (citation omitted) (alteration in original).

At the preliminary hearing, Felix explained how he had advised Paulino of his rights:³

THE WITNESS [Felix]: [I said,] "If you give up the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand that?"

He said, "Yes."

BY MS. MODDER [prosecutor]:

Q: Did he say anything else about that right?

A: He said, "I want to talk to you."

Q: Okay.

The next right?

A: "You have the right to speak with an attorney and have that attorney present when questioned if you so desire. Do you understand that?"

He said, "Yes."

Q: Did you ask him anything else?

A: The final question, I asked him, "If you so desire and can't afford an attorney, one will be appointed for you without any cost. Do you understand that?"

Q: What did he say?

A: He said, "Yes. I want to talk to you."

R.T. of Prelim. Hearing at 42-43.

a. Paulino first contends that he did not waive his right to counsel after being advised of his Miranda rights. Paulino does not argue that he was coerced and the waiver was therefore involuntary. Nor does he suggest that he lacked "full awareness of both the nature of ... [his] right ... and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (Miranda waiver valid only if voluntary, knowing and intelligent). Rather, he points out that the right to silence and the right to counsel are distinct concepts, Michigan v. Mosley, 423 U.S. 96, 104 n. 10, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and frames the issue as whether his agreement to talk with Felix waived his right to counsel. That is, he focuses on the legal significance of his telling Felix that he wanted to talk and writing "I want to talk to Felix" at the bottom of the advisement form. Cf. United States v. Cheely, 36 F.3d 1439, 1447 (9th Cir.1994).

"Even when a right as fundamental as that to counsel ... is involved, the question of waiver must be determined on `the particular facts and circumstances surrounding that case ....'" North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). In Butler, the North Carolina Supreme Court concluded that defendant had not validly waived his right to counsel when he stated that he understood his rights, refused to sign a waiver and stated, "I will talk to you but I am not signing any form." Id. at 371, 99 S.Ct. 1755. Butler "said nothing when advised of his right to the assistance of a lawyer," and never requested a lawyer. Id. The state supreme court concluded that Miranda required an express waiver. Id. at 372, 99 S.Ct. 1755. The Supreme Court vacated the state court's judgment and remanded, holding that"[a]n express written or oral statement of waiver... is not inevitably ... necessary ... to establish waiver." Id. at 373, 99 S.Ct. 1755.

Paulino said he understood his rights — in particular, his right to counsel — and said he wanted to talk. Moreover, when specifically advised of the right to counsel, far from being silent, he actually repeated, "I want to talk to you." Paulino also wrote "I want to talk to Felix" at the bottom of the advisement form. In light of Butler's admonition that an express statement is not necessary to establish waiver, we cannot say that the court of appeal was objectively unreasonable in finding that Paulino's verbal and written responses to Felix's advisement of the right to counsel, when considered in context, constituted a waiver of that right. Nor was the court of appeal unreasonable in concluding that the ambiguity of Paulino's subsequent written confirmation of his waiver did not undermine the latter.

b. Paulino argues that his failure to confirm the waiver of his right to counsel in writing, together with his queries, "Where's the attorney?" and "You mean it's gonna take him long to come?", sufficed to invoke his right to counsel. The state court of appeal concluded that the absence of Paulino's signature on the waiver form did not "unambiguously reflect a request for counsel" and that his "questions regarding the location of counsel and how long it would take counsel to arrive ... [c]onsidered either singly or collectively ... were not a sufficiently clear articulation of his desire to have counsel present." Paulino, No. B118902, at 9-10.

Invocation of counsel sufficient to trigger the protections of Edwards "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Whether a statement is an unambiguous request for counsel "is an objective inquiry" and, "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, ... [Supreme Court precedent] do[es] not require the cessation of questioning." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

Paulino relies on Alvarez v. Gomez, 185 F.3d 995(9th Cir.1999), and United States v. Cheely to tie these established rules of law to the facts of his case. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.2000) (circuit case law may be persuasive authority for habeas purposes). In Alvarez, a pre-AEDPA habeas case, defendant asked three questions that we deemed...