author: RILEY, Chief Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner Mid-South Organizing Committee, Intervenor v. CHIPOTLE SERVICES, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc., Respondent Chipotle Services, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc., Petitioner v. National Labor Relations Board, Respondent Mid-South Organizing Committee, Intervenor
    No. 15-3925, No. 15-3955
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: March 6, 2017
    Counsel who presented argument on behalf of the petitioner/cross-respondent was Valerie L. Collins, of Washington, DC. The following attorney(s) appeared on the petitioner/cross-respondent’s brief; Usha Dheenan of Washington, DC.
    Counsel who presented argument on behalf of the respondent/cross-petitioner was Neal Frederick Perryman, of Saint Louis, MO. The following attorney(s) appeared on the brief; Louis Matthew Grossman, of Denver, CO, Tanya Milligan, of Denver, CO, Michael L. Jente, of St. Louis, Missouri.
    The following attorney(s) appeared on the intervenor brief; Rochelle Skolnick, of Saint Louis, MO.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

Chipotle Services, LLC asks us to set aside an order of the National Labor Relations Board based on a supposed legal error Chipotle never brought to the Board’s attention. We decline, and instead grant the Board’s petition for enforcement.

This case arises out of Chipotle’s decision to fire Patrick Leeper, a “crewmem-ber” who worked the register at a Chipotle restaurant on the Delmar Loop in St. Louis, Missouri. Leeper was involved with a campaign by the Mid-South Organizing Committee — the charging party before the Board and intervenor here — for higher pay in the fast-food industry, and Leeper had discussed wages with some of his coworkers. The charge was that Chipotle fired Leeper for his union activities. See 29 U.S.C. §§ 157, 158(a)(1), (3). Not so, Chi-potle said — Leeper missed a mandatory meeting and had a history of deficient performance and motivation. To sort out these conflicting accounts of Chipotle’s motives, the Board followed the standard approach announced in Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981). First the Board’s General Counsel needed to show Leeper’s protected conduct was a substantial or motivating factor in the decision to fire him, then the burden shifted to Chipotle to prove, essentially as an affirmative defense, it would have fired him anyway. See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 400-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (summarizing and approving the Wright Line framework), overruled in part on other grounds by Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). Adopting the recommendations of an administrative law judge, the Board described the General Counsel’s initial burden under Wright Line as “demonstrating that: (1) the employee engaged in union activity; (2) the employer had knowledge of that union activity; and (3) the employer harbored antiunion animus.”

Chipotle now insists that burden was a mistake and the General Counsel instead needed to demonstrate “ ‘that but for his union activities or membership, [Leeper] would not have been discharged,’ ” a phrase Chipotle takes from our recent opinion in Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554 (8th Cir. 2015) (quoting Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245 (8th Cir. 1996)). But Chipotle did not raise this point before the Board, or otherwise contest the administrative law judge’s application of the Wright Line standard. We therefore are jurisdictionally barred from considering Chipotle’s argument “unless the failure or neglect to urge [it] shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e); see also Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) (“[A dissatisfied party] could have objected to the Board’s decision in a petition for reconsideration or rehearing. The failure to do so prevents consideration of the question by the courts.”).

According to Chipotle, the circumstances of this case are extraordinary because it would have been futile to argue about the proper causation standard before the Board. We have never recognized futility as excusing a failure to raise an objection to the Board. See NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 796 (8th Cir. 2013). Some of our sister circuits have, and Chipotle bases its argument on decisions from two of them. See HTH Corp. v. NLRB, 823 F.3d 668, 674 (D.C. Cir. 2016); Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 357-58 (6th Cir. 1983).

Even if we were to follow those courts, we would not find extraordinary circumstances in this case. The D.C. Circuit holds “filing a motion for reconsideration is patently futile where the agency ha[s] previously rejected the very argument made by [the] petitioner,” and in such a case “[t]he patent futility of a reconsideration motion excuses the failure to object, at least where the Board acts sua sponte.” HTH, 823 F.3d at 674. The Sixth Circuit has likewise explained “[generally, an objection would be futile only when the Board has unequivocally rejected a party’s position by expressly refusing to follow the authority or line of authorities relied upon by that party.” Kitchen Fresh, 716 F.2d at 358 n.13 (“emphasiz[ing] the narrowness of [the] holding”); see also Indep. Elec. Contractors of Hous., Inc. v. NLRB, 720 F.3d 543, 551-52 (5th Cir. 2013) (recognizing “a futility exception” — in a decision not cited by Chipotle — because, among other reasons, the Board had already “discussed” and “preemptively denied” the potential objection, so filing a motion to reconsider would have been “an empty formality”). We see no such unambiguous rejection here.

To start, the Board decision to which Chipotle devotes most of its attention, Dish Network, LLC, 363 N.L.R.B. No. 141 (Mar. 3, 2016), 2016 WL 850920, was issued well after the ruling in this case, so it sheds little light on whether an argument based on Nichols Aluminum would have been patently futile at the time Chipotle failed to raise it. See NLRB v. Contemporary Cars, Inc., 667 F.3d 1364, 1369 (11th Cir. 2012) (“[T]he futility of an omitted objection must be shown as of the time it could have been made to rise to the level of extraordinary circumstances.”). Further, although Chipotle repeatedly describes Dish Network as “expressly” or “explicitly disavowing] this Court’s decision in Nichols Aluminum,” in fact the Board did not mention the case once. See Dish Network, 363 N.L.R.B. No. 141, at 1 n.1, 2016 WL 850920, at *1 n.1. True, the Board made a point of declaring that the General Counsel’s “initial burden of proving that [an employee’s] protected activity was a motivating factor in his discharge” does not require “mak[ing] some additional showing of particularized animus towards the employee’s own protected activity or ... further demonstrating] some additional, undefined ‘nexus’ between the employee’s protected activity and the adverse action.” Id. The Board’s repeated insistence on that point — including in decisions that do predate this case, see, e.g., Auto Nation, Inc., 360 N.L.R.B. 1298, 1301 n.10 (2014), enforced sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015)— suggests the Board might not have been particularly receptive to a request for a stricter formulation of the causation standard. Yet there is no indication the Board had heard an argument based on Nichols Aluminum’s “but for” language before, and a prediction that such an argument was a long shot, even if well-founded, is no excuse for not making it. Cf., e.g., W&M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1346 (D.C. Cir. 2008) (“Such an assessment of the Board’s likely disposition ... is insufficient to prove patent futility because it does not show that a motion for reconsideration was ‘clearly doomed’ by the agency’s rejection of identical arguments.” (quoting Ga. State Chapter Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 184 F.3d 889, 892 (D.C. Cir. 1999))).

Lacking jurisdiction to consider the only objection Chipotle urges against the Board’s ruling, we deny the petition for review and enforce the Board’s order.

      . The Board also found Chipotle unlawfully threatened and otherwise discouraged employees at the Delmar location from discussing wages, talking with union representatives, and engaging in other protected activities. See generally 29 U.S.C. §§ 157, 158(a)(1). Because Chipotle's argument to this court focuses exclusively on Leeper’s discharge, we enforce the portions of the Board’s order relating to these other rulings without further discussion. See, e.g., NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 727 (8th Cir. 2008) (summary enforcement of unchallenged orders).

      . It is not clear what Chipotle thinks is left for the second step of the Wright Line analysis, given this understanding of the first step. A showing "that union or other activities were the cause in fact for [an] employee's discharge,” as Chipotle would require, would seem logically to negate the possibility the employer still would have fired the employee for some other reason — indeed, that is precisely what "cause in fact” (or "but-for cause”) means, see Calloway v. Miller, 147 F.3d 778, 781 (8th Cir. 1998); but-for cause, Black's Law Dictionary (10th ed. 2014).

      . We decided Nichols Aluminum after the administrative law judge ruled in this case, but before the Board adopted her decision. See Nichols Aluminum, 797 F.3d at 548. Chipotle could have brought the Nichols Aluminum opinion to the Board’s attention by submitting a. supplemental-authority letter before the Board issued its order, see Reliant Energy, 339 N.L.R.B. 66, 66 (2003), or moving for reconsideration or rehearing afterward, see 29 C.F.R. § 102.48(d)(1).

      . Another court referred to "futility]” when finding extraordinary circumstances in a case where a challenge to a Board order only became tenable when the Supreme Court overruled previously controlling circuit precedent while the case was on appeal. See NLRB v. Robin Am. Corp., 667 F.2d 1170, 1171 (5th Cir. Unit B 1982); cf. NLRB v. Lundy Mfg. Corp., 286 F.2d 424, 425-26 (2d Cir. 1960). We would address such a situation under the rubric of "new development[s] of ... law occurring] after the Board’s decision,” RELCO Locomotives, 734 F.3d at 796, rather than futility.

      . In a concurrence, one member of the Board did cite Nichols Aluminum as, in his view, supporting a contrary understanding of Wright Line. See Dish Network, 363 N.L.R.B. No. 141, at 4 n.9, 2016 WL 850920, at *2 n.9 (Miscimarra, Member, concurring). Notably, even this concurrence did not quote the "but for” line Chipotle relies on here. See id.


source: Caselaw Access Project

author: W. FLETCHER, Circuit Judge:

license: Public Domain

text:
    Gregory MAHRT, Petitioner-Appellee, v. Jeffrey A. BEARD, Secretary of the California Department of Corrections and Rehabilitation; Stu Sherman, Warden, Respondents-Appellants.
    No. 15-16404
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 14, 2016 San Francisco, California
    Filed March 1, 2017

      Pamela K. Critchfield (argued), Deputy Attorney General; Peggy S. Ruffra and Jeffrey M. Laurence, Supervising Deputy Attorneys General; Office of the Attorney General, San Francisco, California, for Respondents-Appellants.
    Paul Eleven (argued), Law Offices of Paul Eleven, Berkeley, California, for Petitioner-Appellee.
    Before: WILLIAM A. FLETCHER, MORGAN B. CHRISTEN, and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

The State of California appeals from a grant of habeas corpus to Petitioner Gregory Mahrt. The district court found that Mahrt’s state-court guilty plea rested on a violation of his Sixth Amendment right to effective assistance of counsel. For the reasons that follow, we reverse.

I. Factual Background

On September 3, 2012, at approximately 10:00 p.m., Sonoma County Sheriff’s deputies were dispatched to a residence in Pe-taluma, California. A neighbor had reported that a “male and female subject [were] arguing over a gun.” The property was owned by Robyn Ryan, the mother of Petitioner-Appellee Gregory Mahrt’s ex-girlfriend, Tracy Ryan. Mahrt was living in a garage on the property that had been converted into a room.

As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument and the gun. In a written “Incident/Investigation Report,” Deputy Yoder described Mahrt as initially “uncooperative.” According to Deputy Yoder’s report, Mahrt told the deputies that Tracy had left before they arrived. Robyn Ryan stated in a sworn declaration that she likewise had informed the deputies that Tracy had “left the area” before they arrived, and that she had provided this information to the deputies before any search.

The deputies conducted what Deputy Yoder’s report characterizes as a “protective sweep” of Mahrt’s room in the garage. According to the report, the deputies felt justified in conducting this warrantless search “[d]ue to the report of the possible domestic incident and the mention of a deadly weapon” and because Mahrt “may [have been] attempting to conceal a victim inside.” As the. deputies approached the garage, Mahrt “began yelling that he did not want [the officers] to enter his room.” The deputies found no one inside Mahrt’s room.

According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica). Upon determining that no one was in the room, and after observing the firearm-related materials, the deputies discontinued their search of the garage.

According to the report, the deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room, and Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms.

In a sworn declaration, Mahrt described only one search of his room. He insisted that he did not consent to the search. He stated in his declaration:

I saw several deputies approach the room, and stated that they did not have permission to search it, but they ignored me. The deputies searched the room for close to an hour. Inside the room were closed green boxes that contained ammunition, and a locked guitar case that contained a shotgun and an AK-47 rifle.... After the deputies completed their search of the room, the deputy in charge, Deputy Yoder, approached and asked me to sign a written form waiving my right to object to the search. When I refused, the deputy I had been talking to about my [frightened three-year-old] son threatened that if I did not sign-the waiver form, the SWAT team would tear the entire place up for the next twelve hours right in front of my son. I believe that his threat was recorded on the dash camera. Based on the threat, I signed the form and recorded a statement to the effect that the waiver was given voluntarily.

According to Deputy Yoder’s report, further investigation “verified that [Tracy Ryan] was not a victim of Domestic Violence.”

II. Prior Judicial Proceedings

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Mahrt’s first public defender, Anderson Thomas, represented Mahrt for just over a month while his case was being considered for early resolution. Mahrt’s state-court habeas corpus attorney, Paul Eleven, states in a sworn declaration that Thomas originally told him that he did not recall discussing a motion to suppress with Mahrt. However, after checking his files, Thomas corrected himself, telling Eleven that he “did recall Mr. Mahrt telling him that the police should not have been allowed to search.” Eleven states that Thomas recounted to him that he told Mahrt “the search was justified under the circumstances.” Mahrt states in his declaration that no such conversation occurred.

Mahrt’s second public defender, Christina Davis, took over from Thomas and represented Mahrt thereafter in the trial court. Eleven states in a sworn declaration that he twice spoke to Davis, who told him both times “that she did not recall ever discussing a motion to suppress with Mr. Mahrt.” Eleven drafted a proposed declaration to that effect, but Davis never signed it. On November 2, 2012, Mahrt filed a Marsden motion seeking to replace Davis as his court-appointed counsel. See People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970). A “Marsden motion” is the California procedural mechanism through which a criminal defendant “seeks to discharge his appointed counsel and substitute another attorney” on the ground that he has received inadequate representation. People v. Barnett, 17 Cal.4th 1044, 74 Cal.Rptr.2d 121, 954 P.2d 384, 409 (1998) (quoting People v. Memro, 11 Cal.4th 786, 47 Cal.Rptr.2d 219, 905 P.2d 1305, 1343 (1995)); see also John-Charles v. California, 646 F.3d 1243, 1245 n.1 (9th Cir. 2011). During his Marsden hearing, Mahrt said he was dissatisfied with Davis because she had not returned his phone calls, had made him feel “less important,” and had left Mahrt “not feeling like [he was] being represented.” Mahrt did not raise the issue of Davis’s failure to file a suppression motion. The judge denied the request for new counsel.

A few weeks later, while still represented by Davis, Mahrt pleaded guilty to both charges pursuant to an open plea agreement. Mahrt’s signed waiver form has a circle around “no contest” rather than “guilty,” but Mahrt unambiguously pleaded “guilty” during his change of plea hearing, and the state trial court record says that he pleaded guilty. Under an “open plea” in California, the defendant pleads guilty without any promises from the government. People v. Cuevas, 44 Cal.4th 374, 79 Cal.Rptr.3d 303, 187 P.3d 30, 34-35 (2008). Mahrt faced a maximum prison sentence of seven years and four months. He received a six-year sentence.

On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a “Wende” brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous. See Smith v. Robbins, 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1074-75 (1979). On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

With the assistance of counsel, Mahrt filed a state habeas petition in the Court of Appeal. The petition alleged that the war-rantless search of Mahrt’s room violated the Fourth Amendment and that defense counsel provided ineffective assistance of counsel by failing to move to suppress the firearms and ammunition recovered during the search. The Court of Appeal summarily denied Mahrt’s habeas petition. The California Supreme Court also summarily denied his petition.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. See 28 U.S.C. § 636(c). The State timely appealed.

III. Standard of Review

We review de novo the district court’s grant of habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). We review factual findings for clear error. Id.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), we may not grant Mahrt’s application for a writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless the state adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), 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,” id. § 2254(d)(2).

“A state court decision is ‘contrary to’ clearly established Supreme Court precedent if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or if the state court confronts a set of facts materially indistinguishable from those at issue in a decision of the Supreme Court and, nevertheless, arrives at a result different from its precedent.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2008) (citation omitted).

A state-court adjudication “involves an unreasonable application of th[e] [Supreme] Court’s precedent if the state court identifies the correct governing legal rule from th[e] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In order to satisfy the “unreasonable application” prong of § 2254(d)(1), the state court decision “must be objectively unreasonable, not merely wrong.” Woods v. Donald, — U.S. —, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (quoting White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014)).

Where, as here, there is no reasoned state court decision analyzing the state prisoner’s constitutional claim, we “determine what arguments or theories ... could have supported[ ] the state court’s decision” and then determine whether application of those hypothetical theories would have been reasonable. Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Habeas relief is warranted only if “there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98, 131 S.Ct. 770.

IV. Discussion

The State makes two arguments. First, it argues that under Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), Mahrt’s ineffective assistance of counsel claim is not cognizable on federal habeas review because it rests upon an alleged constitutional violation that preceded his guilty plea. Second, the State argues that even if Mahrt’s claim is cognizable, the state court’s rejection of the claim was not contrary to or an unreasonable application of established law as determined by the Supreme Court. We hold that Tollett does not bar Mahrt’s ineffective assistance of counsel claim. We hold further that the state court could reasonably have concluded that Mahrt’s counsel did not provide ineffective assistance in failing to move to suppress the firearms and ammunition.

A. Tollett and Ineffective Assistance of Counsel

In Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a state prisoner sought federal habeas relief on the ground that the indictment to which he had pleaded guilty had been returned by a constitutionally defective grand jury. Reasoning that “a guilty plea represents a break in the chain of events which has preceded it in the criminal process,” the Supreme Court denied relief. Id. at 267, 93 S.Ct. 1602. It held that “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. However, the Court in Tollett made clear that there is an exception to the general rule barring federal habeas relief arising out of pre-plea constitutional violations. The Court wrote that a habeas pétitioner may. “attack the voluntary and intelligent character of the guilty plea” based on pre-plea ineffective assistance of counsel “by showing that the advice he received from counsel was not within the” “range of competence demanded of attorneys in criminal cases.” Id. at 267-68, 93 S.Ct. 1602 (internal quotations omitted).

The State argues' that Tollett's “voluntary and intelligent ... plea” exception applies only to ineffective assistance rendered when providing incompetent advice concerning the guilty plea itself, and not to ineffective assistance rendered in other pre-plea contexts. On this interpretation of Tollett, a claim that counsel provided incorrect advice about minimum and maximum sentences or parole eligibility would not be barred, but a claim, like the one brought by Mahrt, that defendant received deficient representation in connection with a pre-plea suppression motion, would be barred.

The Tollett exception is not as narrow as the State contends. Tollett, properly understood, provides that although freestanding constitutional claims are unavailable to habeas petitioners who plead guilty, claims of pre-plea ineffective assistance of counsel are cognizable on federal habeas review when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead. See Tollett, 411 U.S. at 267-69, 93 S.Ct. 1602; see also United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (suggesting that a “failure by counsel to provide advice [on a double jeopardy defense] may form the basis of a claim of ineffective assistance of counsel” and could “serve as the predicate for setting aside a valid plea.”); McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (stating that “a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney”). The scope of the Tollett exception may be seen in Tollett itself. The Supreme Court held in Tollett that a defendant who had pleaded guilty could not obtain habeas relief “by proving only that” blacks were unconstitutionally excluded from his grand jury. Tollett, 411 U.S. at 260, 93 S.Ct. 1602. But rather than dismiss the claim, the Supreme Court remanded to allow the lower court to determine in the first instance whether counsel’s failure to investigate or object to the grand jury composition constituted ineffective assistance of counsel. Id. at 268-70, 93 S.Ct. 1602.

Consistent with this interpretation of the Tollett exception, many courts, including the Supreme Court, have analyzed on the merits a habeas petitioner’s allegation that his counsel rendered pre-plea ineffective assistance by failing to file a motion to suppress. See Premo v. Moore, 562 U.S. 115, 123-32, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011); Arvelo v. Sec’y, Fla. Dep’t of Corr., 788 F.3d 1345, 1348-50 (11th Cir. 2015); Lynch v. Sec’y, Fla. Dep’t of Corr., 776 F.3d 1209, 1219-20 (11th Cir. 2015); Gilbert v. Merchant, 488 F.3d 780, 790-95 (7th Cir. 2007); Weaver v. Palmateer, 455 F.3d 958, 972 (9th Cir. 2006); Ward v. Dretke, 420 F.3d 479, 487-90 (5th Cir. 2005); Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1996); Hale v. Lockhart, 903 F.2d 545, 550 (8th Cir. 1990); Adcox v. O’Brien, 899 F.2d 735, 737 (8th Cir. 1990).

Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of cases. The State’s entire case against Mahrt depended on its ability -to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled. We therefore conclude that Mahrt’s ineffective assistance of counsel claim is allowed under Tollett.

B. “Unreasonable Application”

An ineffective assistance of counsel claim entails a two-prong inquiry. “First, the defendant must show that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. If the defendant has pleaded guilty, “in order to satisfy the ‘.prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

We conclude that trial counsel should have moved to suppress the firearms and ammunition. There was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Deputy Yoder’s written report tells one story. Mahrt’s sworn declaration, supplemented by the sworn declaration of Robyn Ryan, tells another. Both of those declarations were presented to the California courts by Mahrt’s habeas counsel. The same evidence — in the form of declarations or live testimony — would undoubtedly have been available to Mahrt’s trial counsel had he or she sought to obtain it. According to Mahrt and Robyn Ryan, the deputies were told before they searched Mahrt’s room that Tracy Ryan had left the area. The deputies then searched Mahrt’s room over his objection. According to Mahrt, there was one extensive search of his room, to which he' unambiguously objected, rather than, as recounted by Deputy Yoder, a preliminary sweep, followed by consent by Mahrt to a further search, followed by an extensive search.

Second, Deputy Yoder’s report mischaracterized the first search (if indeed it was a first search rather than a single search) as a “protective sweep.” A war-rantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” 494 U.S. 325, 333, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person who could pose a danger to themselves or to others.

We nonetheless conclude that the state habeas courts were not unreasonable in denying the writ. We have nothing but one-sentence denials from the Court of Appeal and from the Supreme Court, so we are obliged to supply the reasons those courts could have had for their denials. Richter, 562 U.S. at 102, 131 S.Ct. 770. It would have been reasonable for the state courts to conclude that a motion to suppress, if brought, would likely have been denied. This is so even if Mahrt’s evidence is believed, and even in light of Deputy Yoder’s statement that the search was a “protective sweep.” We do not regard Yo-der’s improper use of this legal term, which has a specific and relatively narrow meaning, as preventing the state courts from relying on some other basis to justify the search. Specifically, the state courts could reasonably have concluded that the search was justified under the “emergency aid” exception to the warrant requirement. See Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam).

Deputy Yoder stated in his report that “[biased on [Mahrt’s] behavior, I felt he may be attempting to conceal a victim inside.” Although warrantless searches of the home are “presumptively unreasonable,” Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), law enforcement officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (internal quotation marks omitted). To invoke this “emergency aid” exception, an officer must have an objectively reasonable basis for believing both that a person is inside the house and that the person is in need of immediate aid. See id.; United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005).

Yoder and the other deputies were not obliged to believe Mahrt and Robyn Ryan when they said that Tracy Ryan had left the area. The officers “were not conducting a trial, but were required to make an on-the-spot decision as to whether [the potential victim] could be in the apartment in need of medical help.” United States v. Black, 482 F.3d 1035, 1040 (9th Cir. 2007). “[H]ad they not investigated and [the victim] was in fact in the apartment[,]” the officers would likely have been “harshly criticized” by their superiors. Id.; see also Martinez, 406 F.3d at 1164 (emphasizing “[t]he volatility of situations involving domestic violence”). It thus would not have been unreasonable for the state courts to regard the possibility of a victim inside Mahrt’s room as an exigent circumstance justifying the warrantless search of the room. See, e.g., Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

Conclusion

We therefore reverse the district court’s grant of habeas corpus.

REVERSED.


author: IKUTA, Circuit Judge: THOMAS, Chief Judge,

text:
    Wade ROBERTSON, Petitioner-Appellant, v. Rise Jones PICHON, Judge of Santa Clara Superior Court; Attorney General of the State of California, Respondents-Appellees.
    No. 15-16463
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016, San Francisco, California
    Filed March 2, 2017

      Marc J. Zilversmit (argued), San Francisco, California, for Petitioner-Appellant.
    Jill M. Thayer (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Respondents-Appel-lees.
    Before: SIDNEY R. THOMAS, Chief Judge, and CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
   Concurrence by Chief Judge THOMAS

OPINION

IKUTA, Circuit Judge:

Wade Robertson was found guilty by a California state jury of driving under the influence of alcohol and possession of a billy club and was sentenced to 12 days in jail and three years on probation. Robertson appeals the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I

The evening of April 27, 2006, Wade Robertson, was celebrating with four others at Nola’s Restaurant in Palo Alto, California. The group ordered 24 shots of liquor and six mixed drinks over the course of four hours. In addition, Robertson paid for a separate round of drinks with a $100 bill, and according to the waitress, told her to keep the change.

Shortly, after midnight, Robertson complained to the manager on duty, Shiraz Qadri, that the waitress had failed to return the change for the $100 bill. In order to avoid problems, Qadri reduced Robertson’s credit card bill by $90. Qadri testified that throughout this interaction, Robertson appeared intoxicated, with “dilated eyes, red face, red eyes” and with alcohol on his breath. Qadri offered to call Robertson’s group a cab. Robertson declined.

After Robertson left the restaurant, Qadri saw him walk over to a white pickup truck. Agent Dan Ryan, a Palo Alto police officer on patrol that evening, also saw Robertson standing outside a parked pickup truck on the street near the restaurant. As Robertson prepared to take off in the truck, Qadri flagged down Agent Ryan and told him, “Hey, those guys told me they were going to take a cab and they have been drinking pretty heavily.”

Not long afterward, Agent Ryan saw the white truck make an illegal left turn a few blocks away from the restaurant, cutting off another vehicle. Agent Ryan followed the truck, caught up to it when the driver pulled into a gas station, and initiated a traffic stop. Robertson quickly exited the truck and began walking towards the patrol vehicle. Once Robertson got out of the truck, Agent Ryan recognized him from the prior encounter. Agent Ryan recalled that Robertson “had an odor of an alcoholic beverage on his breath.” According to Agent Ryan, Robertson loudly and aggressively asked him why he had been stopped, and denied that he had been drinking. When Agent Ryan pointed out the smell of alcohol on his breath, Robertson called him a liar.

At that point two additional officers, David Guy and Cole Ghilarducci, arrived at the scene, and observed Agent Ryan administering a series of field sobriety tests. Robertson performed poorly: the nystag-mus gaze test indicated the presence of blood alcohol, and he displayed poor coordination and balance. Based on the field sobriety tests and Robertson’s demeanor, Agent Ryan concluded that Robertson had been driving under the influence of alcohol. Officer Guy testified that he reached the same conclusion, and that it was not a close call. When Officer Guy looked into the white truck, he saw a billy club lying between the driver and passenger seats. He collected the billy club for evidence.

Agent Ryan arrested Robertson and took him to the police department’s booking area. When Agent Ryan asked Robertson to take a breath test, he refused. He also refused to take a blood test. At that point, Agent Ryan gave Robertson a form issued by the California Department of Motor Vehicles, which provided the following information, among other things:

1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.
2. a. Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test....
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fíne and imprisonment if this arrest results in a conviction of driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test....

After Robertson read the form, he told Agent Ryan that he wanted to speak with his attorney before submitting to any chemical test. Pointing to section 5 of the form (which actually stated he did not have the right to an attorney), Robertson said “See, I have the right to an attorney right here, and I want my attorney.” Agent Ryan tried to correct this misreading of section 5, but when Agent Ryan asked Robertson again to take a breath test, Robertson replied, “Absolutely not,” and in response to the request to take a blood test, Robertson replied, “No, I will not take a blood test.”

At some point during the booking process, Agent Ryan gave Robertson Miranda warnings. After reading Robertson his rights, Agent Ryan asked Robertson if the billy club that Officer Guy found in Robertson’s truck belonged to him. Robertson said, “[Y]es, it belonged in the truck.” He then asked “if it was a misdemeanor to possess that in California?” Agent Ryan told him it “could be charged either as a misdemeanor or a felony,” and gave Robertson a copy of the California Penal Code so he could read the law for himself. Agent Ryan also administered a second series of field sobriety tests in the booking area. These tests, which were recorded on videotape, showed that Robertson again performed poorly.

Robertson was subsequently charged with two criminal counts. First, he was charged with misdemeanor driving under the influence of alcohol in violation of section 23152(a) of the California Vehicle Code, along with an enhancement for refusing to submit to a chemical test as provided under section 23577 of the Vehicle Code (referred to here as a “refusal enhancement”). Second, he was charged with misdemeanor possession of a billy club in violation of section 12020(a)(1) of the California Penal Code.

Robertson filed a pretrial motion to suppress evidence obtained during the traffic stop. Robertson argued that Agent Ryan had not been directly behind Robertson’s truck. From this fact, Robertson argued, it could be inferred that Agent Ryan had not observed the illegal left turn and therefore, the traffic stop was unlawful. To support this theory, two expert witnesses testified that bank surveillance photographs of the intersection where Robertson made the illegal left turn showed that Agent Ryan’s police car was not immediately behind Robertson’s truck. Robertson also called two eyewitnesses to testify that Agent Ryan’s police car was not behind his truck. The trial court denied .the motion to suppress. It stated that it did not credit the testimony of the eyewitnesses, but did credit Agent Ryan’s testimony that he personally observed Robertson’s illegal left turn.

Robertson subsequently filed a motion in limine to admit into evidence the bank surveillance photographs and related expert testimony at trial. The trial court denied the motion, stating that the legality of the traffic stop had already been fully litigated, but that it would allow Robertson to renew his motion at trial to use the evidence to challenge Agent Ryan’s credibility.

At trial, Agent Ryan testified regarding the traffic stop, the field sobriety tests conducted at the scene, and the events in the booking area in the police department. He also testified that .the billy club was similar to batons used by the Palo Alto police department. Robertson’s trial counsel did not object to the admission of these statements.

For the defense, Robertson’s counsel introduced eyewitness testimony that Robertson had not been drinking the night of April 27 and that he was not drunk when he left the restaurant. A field sobriety expert testified that Agent Ryan had improperly administered several of the field sobriety tests. Robertson contended that the smell of his breath was attributable to hypoglycemia. A licensed private investigator testified that the billy club had nonviolent uses such as checking tire pressure and serving as a handle for a tire jack. Robertson attempted again to introduce the bank surveillance photos to impeach Agent Ryan’s credibility, but the court did not permit it, on the ground “that the probative value is substantially outweighed by the undue consumption of time.”

At the close of evidence, Robertson moved for a judgment of acquittal on the charge of possessing a billy club in violation of section 12020(a)(1) on the ground that the evidence was insufficient to establish that Robertson knew that the billy club was a weapon or could be used as a weapon. The trial court denied the motion, holding that the evidence that Robertson had asked Agent Ryan whether possession of the billy club was a misdemeanor showed that Robertson knew the billy club was a weapon.

In closing argument, the prosecutor criticized Robertson’s theory of the case, arguing:

Ladies and gentlemen, to find reasonable doubt in this case you got to believe Shiraz Qadri lied about a complete stranger; Agent Ryan lied about a complete stranger that night; Officer Guy lied about a complete stranger that night; that defendant just can’t follow instructions, that he just has horrible balance, despite being a wrestler which requires great balance. He lies about alcohol for absolutely no reason. He had some good reason not to blow besides guilt, and he was willing to take the consequences for some reason besides being guilty.

The trial court then charged the jury. With respect to the refusal enhancement under section 23577 of the California Vehicle Code, the court provided the following instruction:

If you find the defendant guilty of driving under the influence of alcohol, you must then decide whether the People have proved the additional allegation that the defendant willfully refused to submit to a chemical test to determine blood alcohol content.
To prove this allegation the People must prove that:
1. A peace officer asked the defendant to submit to a chemical test to determine blood alcohol content;
2. The peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test;
AND
3. The defendant willfully refused to submit to a test.

The court did not instruct the jury that it was required to find that Robertson had been lawfully arrested.

The jury found Robertson guilty of driving under the influence and of willfully refusing to submit to a chemical test to determine blood alcohol content. It also convicted Robertson of possession of a billy club. Robertson brought a motion for a new trial, alleging (among other arguments) that the admission of his statement that he knew the billy club was in the truck, and his question whether possession was illegal, violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied the motion.

On appeal to the Appellate Division of the Santa Clara County Superior Court, Robertson argued that once he invoked his right to counsel, Agent Ryan’s continued questioning violated his rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and therefore Robertson’s statements about the billy club were inadmissible. The Appellate Division rejected this argument, saying only “Appellant’s statements did not violate Miranda.” The California Court of Appeal summarily denied Robertson’s request to consider this and other claims, and the California Supreme Court summarily denied his petition for a writ of state -habeas corpus.

Robertson filed a petition for a writ of habeas corpus in federal district court in November 2010. The district court denied the petition, but granted a certificate of appealability limited to Robertson’s claim that the trial court’s admission of his statements regarding the billy club violated Edwards.

II

“We review de novo the district court’s denial of a § 2254 habeas petition.” Murdoch v. Castro, 609 F.3d 983, 989 (9th Cir. 2010) (en banc) (plurality opinion). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petition for habeas corpus pending before a federal court “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” resulted in a decision that either “was contrary to, or involved an unreasonable application of,' clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).

“The starting point for cases subject to § 2254(d)(1).is to identify the ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” Marshall v. Rodgers, — U.S. -, 133 S.Ct. 1446, 1449, 185 L.Ed.2d 540 (2013) (per curiam) (quoting 28 U.S.C. § 2254(d)(1)). Clearly established federal law is limited to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions,” Woods v. Donald, — U.S. -, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (quoting White v. Woodall, — U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014)), and “[c]ircuit precedent cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced,’ ” Lopez v. Smith, — U.S. -, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (quoting Marshall, 133 S.Ct. at 1450). “[W]hen a Supreme Court decision does not ‘squarely address[ ] the issue in th[e] case’ or establish a legal principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in these recent decisions, it cannot be said, under AEDPA, there is ‘clearly established’ Supreme Court precedent addressing the issue before us, and so we must defer to the state court’s decision.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (second, third, and fourth alterations in original) (citation omitted) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008)). Said otherwise, “when a state court may draw a principled distinction between the case before it and Supreme Court caselaw, the law is not clearly established for the state-court case.” Murdoch, 609 F.3d at 991.

Where there is clearly established Supreme Court precedent on point, we may not hold a state court’s application of that precedent to be unreasonable unless it is “ ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Said otherwise, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woodall, 134 S.Ct. at 1702 (quoting Richter, 562 U.S. at 103, 131 S.Ct. 770). “AEDPA’s requirements reflect a ‘presumption that state courts know and follow the law,’ ” Donald, 135 S.Ct. at 1376 (quoting Visciot- ti, 537 U.S. at 24, 123 S.Ct. 357), and its “highly deferential standard for evaluating state-court rulings ... demands that state-court decisions be given the benefit of the doubt,” Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Visciotti, 537 U.S. at 24, 123 S.Ct. 357).

Ill

On appeal, Robertson claims that the state trial court’s failure to suppress his statements regarding the billy club after Robertson stated “I want my attorney” violated his Fifth Amendment rights under the principles set forth in Edwards, 451 U.S. 477, 101 S.Ct. 1880. Robertson contends that he was under arrest at the time Agent Ryan asked him to take a chemical test and was therefore in custody at the time he unambiguously invoked his right to counsel. Accordingly, Robertson argues, Agent Ryan’s subsequent questioning before counsel was- made available was directly contrary to Edwards, and accordingly, the Appellate Division’s rejection of this claim was an unreasonable application of Edwards.

A

To evaluate this claim, we begin with a review of Edwards and other relevant Supreme Court precedent.

In Edwards, a defendant was arrested for robbery, burglary, and first-degree murder, and was informed of his rights at the police station as required by Miranda. 451 U.S. at 478, 101 S.Ct. 1880. After some preliminary negotiations with the police about a plea bargain, the defendant said, “I want an attorney before making a deal.” Id. at 479, 101 S.Ct. 1880. The police stopped questioning the defendant, but renewed interrogation the next day. Id. In response to this interrogation, the defendant ultimately confessed. Id. The state courts refused to suppress his confession. Id. at 480, 101 S.Ct. 1880.

The Supreme Court reversed. Id. As Edwards explained, Miranda “determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.” 451 U.S. at 481-82, 101 S.Ct. 1880 (citing Miranda, 384 U.S. at 479, 86 S.Ct. 1602). Edwards concluded that “additional safeguards are necessary when the accused asks for counsel.” Id. at 484, 101 S.Ct. 1880. Therefore, Edwards adopted the prophylactic rule “that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. When “an accused ... having expressed his desire to deal with the police only through counsel,” he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. 1880. Because the defendant in Edwards had invoked his Fifth Amendment right to counsel under Miranda, and that right had been infringed by the police returning to ask him more questions, the Court held that “the fruits of the interrogation initiated by the police” could not be used against him. Id. at 485, 101 S.Ct. 1880.

The Supreme Court has indicated that there are limits on a defendant’s rights under Miranda and Edwards. First, “the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect is subjected to interrogation,” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Edwards reiterated that “[t]he Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation,” 451 U.S. at 485-86, 101 S.Ct. 1880. “Absent such interrogation, there would have been no infringement of the right.” Id. Accordingly, any statements sought to be suppressed must have been the product of interrogation.

The term “interrogation” has a specific meaning in this context. The Court has clarified that not “all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation.” Innis, 446 U.S. at 299, 100 S.Ct. 1682. Rather, “Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” Id. at 300-01, 100 S.Ct. 1682. “‘[I]nterrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682.

The Supreme Court has previously explained how Miranda and Edwards apply to police requests that a suspected drunk driver submit to chemical testing. In South Dakota v. Neville, police stopped a suspected drunk driver, who refused to take a blood-alcohol test. 459 U.S. 553, 555, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The defendant “sought to suppress all evidence of his refusal to take the blood-alcohol test,” and the state court granted the suppression motion. Id. at 556, 103 S.Ct. 916. The Supreme Court reversed, holding that Edwards’s prophylactic rule was not implicated under these circumstances because “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.” Id. at 564 n.15, 103 S.Ct. 916; see also Pennsylvania v. Muniz, 496 U.S. 582, 604, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (holding that a defendant’s incriminating utterances during the administration of three physical sobriety tests and a breath test for blood-alcohol content at the police station were not in response to custodial interrogation, and that therefore the absence of Miranda warnings did not require suppression of the statements at trial).

The Court has noted a second limitation of Edwards’s prophylactic rule. McNeil v. Wisconsin held that a defendant’s invocation of the Sixth Amendment right to counsel at his initial appearance before a court was specific to the type of legal assistance required and to the specific crime for which the defendant had invoked the right to counsel. 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). The invocation of a Sixth Amendment right as to one crime did not count as an invocation of the Miranda-Edwards right to respond to custodial interrogation only through counsel with respect to a different crime. Id. Rather, Edwards “applies only when the suspect ha[s] expressed his wish for the particular sort of lawyerly assistance that is the subject of Miranda,” meaning that the defendant must make “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” Id. (quoting Edwards, 451 U.S. at 484, 101 S.Ct. 1880) (internal quotation marks and emphasis omitted). The Court rejected the argument that a defendant could get around the rule that the right to counsel is specific to the circumstances by invoking Miranda and Edwards at a pretrial, hearing, stating that “we have ... never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’ ” McNeil, 501 U.S. at 182 n.3, 111 S.Ct. 2204. In other words, “[t]he fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.” Id.

In Bobby v. Dixon, the Supreme Court considered McNeil’s, limitation on the Edwards rule in the habeas context. 565 U.S. 23, 132 S.Ct. 26, 29, 181 L.Ed.2d 328 (2011) (per curiam). In Dixon, the defendant had a “chance encounter” with the police at the local police station, and refused to answer questions about a crime without his lawyer present. Id. at 28. After being arrested, interrogated, and released, the defendant returned to the police station and stated that he talked to his attorney, and wanted to confess. Id. The state court allowed the murder confession to be admitted into evidence, but the Sixth Circuit granted the defendant’s federal habe-as petition on the basis that the state court’s admission of his confession was an unreasonable application of Miranda. Id. at 29. The Supreme Court reversed, holding that the Sixth Circuit was “plainly wrong” in holding that Miranda clearly established that the defendant’s initial refusal to talk to the police without a lawyer required the suppression of the subsequent confession. Id. The Court noted that the defendant “was not in custody during his chance encounter with police,” and “this Court has ‘never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation.’ ” Id. (quoting McNeil, 501 U.S. at 171 n.3, 111 S.Ct. 2204).

Reading these cases together, the Supreme Court has made clear that a defendant has a Fifth Amendment right to have counsel present at any custodial interrogation, and once the defendant has invoked this right, the defendant “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. But if a defendant is not in the context of custodial interrogation — such as when a suspected drunk driver is asked by police to submit to chemical testing — the safeguards of Miranda and Edwards are inapplicable. This limitation of Edwards’s prophylactic rule applies even if the defendant had previously invoked Miranda and Edwards before being placed in a custodial interrogation context.

B

In light of this analysis of the Supreme Court’s clearly established precedent, we must determine whether, under AEDPA’s deferential standard, the Appellate Division was objectively unreasonable in determining that Robertson was not entitled to the safeguards of Miranda and Edwards. We conclude that the state court could have made a principled distinction of these cases on two grounds.

First, although Robertson was under arrest and in custody at the booking station, a state court could have reasonably concluded that Agent Ryan’s request that Robertson submit to chemical testing did not constitute custodial interrogation, because such a request “[i]n the context of an arrest for driving while intoxicated” does not constitute “an interrogation within the meaning of Miranda.” Neville, 459 U.S. at 564 n.15, 103 S.Ct. 916; see also Muniz, 496 U.S. at 604, 110 S.Ct. 2638. Accordingly, a state court could reasonably conclude that' Robertson’s statement “I want my attorney” was an attempt to “invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’ ” McNeil, 501 U.S. at 182 n.3, 111 S.Ct. 2204. Because the Supreme Court has stated that it has never answered the question whether a defendant can make such an anticipatory invocation, a state court’s conclusion that Robertson’s anticipatory invocation of his right to counsel did not trigger any rights under Edwards could not be an unreasonable application of Supreme Court precedent. See Donald, 135 S.Ct. at 1376.

. Second, even though a police officer could infer that Robertson’s statement that he would not submit to chemical testing without a lawyer meant that Robertson also wanted a lawyer for subsequent questioning, McNeil tells us that “the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards,” 501 U.S. at 178, 111 S.Ct. 2204 (emphasis omitted). Rather, the defendant must express “his wish for the particular sort of lawyerly assistance that is the subject of Miranda,” namely, “an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” Id. A state court could reasonably conclude that Robertson’s invocation of the right to counsel in the context of responding to a request to submit to chemical testing, did not express his desire for the assistance of counsel in dealing with custodial interrogation. Under AEDPA, we must defer to such a determination. See Dixon, 132 S.Ct. at 29 (2011).

Robertson argues that such a conclusion is squarely precluded by our decision in Sessoms v. Grounds, 776 F.3d 615 (9th Cir. 2015) (en banc). In Sessoms, a defendant in police custody was interrogated by two police officers. Id. at 617. After the exchange of a few inconsequential remarks, the defendant stated: “There wouldn’t be any possible way that I could have a — a lawyer present while we do this? ... Yeah, that’s what my dad asked me to ask you guys \.. uh, give me a lawyer.” Id. at 617-18 (second alteration in original). Instead of treating this statement as the invocation' of a right to counsel, the police told the defendant that having a lawyer “would only hurt him,” and then read him his Miranda rights. Id. at 619. The defendant waived his Miranda rights and confessed to the crime. Id. The state court rejected the defendant’s claim that police had violated his Miranda rights on the ground that the defendant’s statements were ambiguous, and therefore it was “not ‘sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ ” Id. at 620 (alteration in original) (quoting People v. Sessoms, No. C041139, 2004 WL 49720, at *3 (Cal. Ct. App. Jan. 12, 2004)). Accordingly, the state court denied the defendant’s suppression motion. Sessoms rejected this reasoning. It concluded that the case “involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them,” id. at 621, that the defendant’s request for counsel was unambiguous, and that the state court’s determination to the contrary was “an unreasonable application of Supreme Court precedent,” id. at 629.

According to Robertson, Sessoms is directly on point. Like the defendant in that case, Robertson contends, he was in custody, and made a request for counsel during his preliminary interactions with Agent Ryan before formal interrogation began (and before he was read his Miranda rights). But there is a key difference between his situation and the situation of the defendant in Sessoms: Sessoms held that the defendant was in the context of a custodial inteiTogation at the time he invoked his right to counsel. See id. at 626. The central issue was the ambiguity of the defendant’s request for counsel, not the timing of that request or the purposes for which that request was made. See id. at 627-29. In this case, by contrast, the state court could reasonably conclude that Robertson was not in the context of a custodial interrogation at the time he requested counsel. Because Sessoms did not address the question raised by our case, it is inap-posite here.

In sum, the Supreme Court has not addressed the question whether a defendant’s request for counsel in response to a request to submit to a chemical test constitutes an invocation of his Miranda rights for purposes of any future custodial interrogations. Therefore, we cannot say that the state court’s ruling, that the admission of Robertson’s statements regarding the billy club did not violate Miranda and Edivards, is objectively unreasonable. We therefore affirm the district court’s denial of Robertson’s petition.

IV

Robertson also raises five un-certified claims. “When a brief includes uncertified issues, we may treat it as a request to expand the scope of the certificate of appealability.” Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008); see Ninth Circuit Rule 22-l(e). Under AED-PA, a certificate of appealability (COA) cannot be issued or expanded unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). ‘We look to the District Court’s application of AEDPA to [Robertson’s] constitutional claims,” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), and Robertson “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” in light of AEDPA, id. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

First, Robertson contends that his trial counsel’s failure to object to the admission of his statements regarding the billy club amounted to ineffective assistance of counsel. A petitioner claiming ineffective assistance of counsel must show: (1) “that counsel’s performance was .deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In claiming that his counsel was deficient, Robertson points to his trial counsel’s declaration, initially submitted with Robertson’s motion for a new trial, stating that counsel did not object to the admission of Robertson’s statements about the billy club solely due to his mistaken belief that section 12020(a)(1) of the California Penal Code was a specific intent crime, and the government had not established that Robertson knew having a billy club was a crime. The trial court rejected this contention on the ground that Robertson’s trial counsel “may have believed that the objection would have been futile or because it enabled the defendant to present to the jury his statement that he did not know it was against the law to have the baton.” The district court rejected this ineffective assistance claim without comment.

No reasonable jurist would find the district court’s ruling debatable, because the state court’s determination that the counsel could have had strategic reasons for not objecting to admission of Robertson’s statements was not an unreasonable application of Strickland, which “mandates a ‘strong presumption’ that counsel acted ‘for tactical reasons rather than through sheer neglect.’ ” Demirdjian v. Gipson, 832 F.3d 1060, 1066-67 (9th Cir. 2016) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)). Trial counsel’s post-hoc explanation that his decision was based on a legal error is not dispositive, because Strickland “calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Richter, 562 U.S. at 110, 131 S.Ct. 770.

Next, Robertson asserts that the Appellate Division’s decision that the instructional error was harmless was an unreasonable application of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Robertson argued that the trial court’s instructions on section 23577 (the enhancement based on his refusal to submit to blood or breath alcohol test) missed an element of the offense (that he had been lawfully arrested) and contended that the trial court’s failure to sua sponte instruct the jury on this element violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to have the prosecution prove every element of his offense beyond a reasonable doubt. The Appellate Division held that any instructional error was harmless, stating: “Because the jury found beyond a reasonable doubt that the appellant had driven under the influence of alcohol, the jury found that appellant’s arrest was lawful.”

The district court’s rejection of Robertson’s constitutional claim is not debatable. At trial, the state presented overwhelming evidence that Agent Ryan had reasonable cause to believe that Robertson had been driving under the influence of alcohol and could cause bodily harm or property damage, and therefore Robertson’s arrest was lawful. See Cal. Veh. Code § 40300.5 (providing that “a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage” if “[t]he person may cause injury to himself or herself or damage property unless immediately arrested,” among other situations). Even assuming'the refusal enhancement contains a lawful-arrest element, the Appellate Division could have reasonably concluded that the trial court’s failure to instruct the jury on that element was harmless under Chapman. Robertson’s appeal to Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), is unavailing because “a petitioner ‘necessarily cannot satisfy’ the Brecht requirement of showing that he was ‘actually prejudiced’ by the state court’s error ... ‘if a fairminded jurist could agree with the [state appiellate court] that [the alleged error] met the Chapman standard of harmlessness.’ ” Sifuentes v. Brazelton, 825 F.3d 506, 535 (9th Cir. 2016) (first alteration in original) (quoting Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015)).

Robertson next argues that the Appellate Division unreasonably applied Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), in determining that the trial court’s exclusion of evidence relating to Agent Ryan’s credibility did not violate his right to present a complete defense. The trial court had excluded the bank surveillance photographs and related expert testimony that had been previously admitted at the suppression hearing, reasoning “that the probative value is substantially outweighed by the undue consumption of time.” See Cal. Evid. Code § 352.

We have previously held that a trial court’s exercise of discretion to exclude evidence under a rule of evidence that requires balancing probative value against prejudice could not be an unreasonable application of clearly established Supreme Court precedent, because the Court has never addressed the question whether such a rule could violate a defendant’s constitutional rights. See Moses, 555 F.3d at 758-59. No Supreme Court decision has established such a rule since we reached this conclusion in Moses. Therefore, no reasonable jurist could disagree with the district court’s conclusion that the state court’s rejection of Robertson’s Crane claim was not contrary to, or an unreasonable application of, clearly established federal law.

Robertson also argues that the Appellate Division’s conclusion that there was no showing of prosecutorial misconduct was contrary to Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Robertson claimed that the prosecutor engaged in misconduct in telling the jury that “to find reasonable doubt in this case you got to believe ... [that Robertson] had some good reason not to blow besides guilt, and he was willing to take the consequences for some reason besides being guilty.” The district court rejected this claim, and no reasonable jurist could disagree with this conclusion. Darden instructs “that a prosecutor’s improper comments amount to a constitutional violation if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process. ’ ” Deck v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2014) (quoting Darden, 477 U.S. at 181, 106 S.Ct. 2464). In making this determination, a court may consider “(1) whether the prosecutor’s comments manipulated or misstated the evidence;' (2) whether the trial court gave a curative instruction; and. (3) the weight of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005). Here, the state court could have reasonably found that the trial was not infected with unfairness, given that the prosecutor’s comments are best understood as characterizing Robertson’s- argument rather than misstating the evidence, the trial court instructed jurors to disregard “attorneys’ comments on the law” to the extent they conflicted with the court’s instructions, and the evidence against Robertson at trial was overwhelming. See id.

Finally, Robertson argues that the Appellate Division’s determination that section 12020 of the California Penal Code does not violate the Second Amendment is an unreasonable application of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). No reasonable jurist could disagree with the district court’s rejection of this argument, given that the Supreme Court has never ruled on whether there is a constitutional right to possess a billy club. See id. at 574, 128 S.Ct. 2783. Robertson’s reliance on McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), and Caetano v. Massachusetts, — U.S. -, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016) (per curiam), fails at the threshold. Neither McDonald nor Caetano had been issued by the Supreme Court before the Appellate Division affirmed Robertson’s convictions on direct appeal in 2009, and therefore neither can constitute “clearly established federal law ... as of the time of the state court decision,” Hedlund v. Ryan, 815 F.3d 1233, 1239 (9th Cir. 2016) (quoting Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003)).

AFFIRMED.

THOMAS, Chief Judge,

concurring:

Given the standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), I concur in the majority opinion. Because the state of the law concerning pre-interrogation assertion of Miranda rights is not “clearly established,” the state court decision in this case was not “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254. The Supreme Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’ ” McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). And a suspect’s “refusal to take a [lawfully-requested] blood-alcohol test” is neither a coerced act, nor is it “protected by the privilege against self-incrimination.” South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

However, if this appeal were on direct review, one might reach a different conclusion. The defendant anticipatorily asserted his Miranda rights while in custody in connection with the police request that he submit to a blood alcohol test. Nevertheless, the police continued the questioning and, at some point, provided a Miranda warning. This situation, under Supreme Court jurisprudence, would present a legitimate Miranda/Edwards issue on direct review. See Missouri v. Seibert, 542 U.S. 600, 613-14, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (“[WJhen Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.”) (quoting Moran v. Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)) (alterations omitted); Montejo v. Louisiana, 556 U.S. 778, 794-95, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (explaining that once a defendant has invoked his right to counsel, “not only must thq immediate contact end, but ‘badgering’ by later requests is prohibited”) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990)). But that question is for another day, and it is unnecessary for us to opine on that question here. On AEDPA review, I agree that the district court should be affirmed, and I concur in the majority opinion.

      . We have jurisdiction over Robertson’s appeal because he filed his petition while he was on probation. Probationary status qualifies as being "in custody” for jurisdictional purposes, and a petitioner's "subsequent release from custody does not deprive the court of its jurisdiction.” Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Further, because Robertson is presumed to experience collateral consequences as a result of his convictions, the case is not moot. See id.

      . According to the testimony, when administering a nystagmus gaze test, an officer asks a person to track a finger or a pen using only his eyes, without moving his head. Nystagmus is present when the iris of the eye has a jerky or skipping movement as it moves left and right and suggests, in most individuals, the presence of alcohol in the bloodstream.

      . At the time of the offense, section 23152(a) of the California Vehicle Code provided:
      (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

      . Section 23577 of the California Vehicle Code imposes various penalties on any person convicted of a violation of Section 23152 or 23153 if “at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612.”
      In turn, section 23612 of the California Vehicle Code provides, in pertinent part:
      (a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.... (C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.

      . At the time of the offense, section 12020(a)(1) of the California Penal Code provided, in pertinent part:
      (a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: (1) Manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any ... instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.

      . The Appellate Division also denied Robertson’s subsequent application to certify the case for decision by the California Court of Appeal.

      . In Birchfield v. North Dakota, the Supreme Court held that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” - U.S. -, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016). Because Robertson refused to submit to a breath test and refused to submit to a blood test, Birchfield does not affect our analysis.

      . Although "[s]tate-court decisions are measured against [the Supreme] Court’s precedents as of 'the time the state court renders its decision,' ” Cullen v. Pinholster, 563 U.S. 170, 182, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct 1166, 155 L.Ed.2d 144 (2003)), we are bound by the Supreme Court’s AEDPA decisions regardless when the opinion was issued.

      . For the same reason, Robertson’s reliance on Jones v. Harrington does not help him. See 829 F.3d 1128, 1141 (9th Cir. 2016) (holding that a state court’s determination that a defendant’s invocation of the right to remain silent was ambiguous was an unreasonable application of Supreme Court precedent where the defendant was subject to hours of custodial interrogation, and stated "I don’t want to talk no more”).

      . Our analysis is not affected by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Under Justice Kennedy's concurrence, which we have held to be controlling, see United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006), “postwarn-ing statements that, are related to the substance of prewarning statements must be excluded absent specific, curative steps” if “an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview,” Seibert, 542 U.S. at 621, 124 S.Ct. 2601 (Kennedy, J„ concurring in the judgment). Seibert is not implicated here: Robertson makes no allegation that Agent Ryan employed a “deliberate, two-step strategy” in order to circumvent Miranda, and Robertson’s postwarning statements at issue here, regarding the billy club, do not relate to the substance of statements Robertson made prewarning.

      . In support of this claim, Robertson moved belatedly to file supplemental excerpts of record cited in his reply brief. We deny the motion as moot.

      . Robertson’s reliance on Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), and Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) (per curiam), is misplaced. No reasonable jurist could disagree that the state court could have drawn a principled distinction between this case on the one hand and Miller and Alcorta on the other, as both of those cases involved the elicitation of false testimony in the presentation of the prosecution’s case rather than a characterization of the defendant’s theory of the case in closing arguments. See Miller, 386 U.S. at 3-4, 87 S.Ct. 785; Alcorta, 355 U.S. at 29-30, 78 S.Ct. 103.

      .' Of course, neither McDonald nor Caetano would aid Robertson even had they been issued before the Appellate Division's decision in 2009, as neither case addressed the constitutional right to possess a billy club. See McDonald, 561 U.S. at 750, 130 S.Ct. 3020; Caetano, 136 S.Ct. at 1027.