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Ninth Circuit:
Miranda Right Need Not Be Invoked With Formality
By a MetNews Staff Writer
A Miranba violation can occur in the absence of an explicit invocation of the right to remain silent, the Ninth U.S. Circuit Court of Appeals declared yesterday, affirming the grant of habeas corpus relief by the U.S. District Court of the Central District of California to a man convicted of a sexual act on a child under the age of 10 and other crimes.
Inmate Kenneth Kon’s claim of a Miranda violation was credited by Judge Stephen V. Wilson, in granting a writ of habeas corpus, after the Ninth Circuit in 2019 remanded the matter for a hearing.
A three-judge panel—comprised of Circuit Judges Marsha S. Berzon and Paul J. Watford, joined by District Court Judge Robert H. Whaley of the Eastern District of Washington, sitting on assignment—said in a memoradum opinion, filed Tuesday: “Kon’s statement, ‘So tired. That’s all I have to say. Y’know,’ constituted an unambiguous invocation of his right to remain silent.”
The convictions were upheld by Div. Three of the Fourth District Court of Appeal in an opinion in 2014. There was no mention in the opinion of an alleged Miranda violation.
The acting warden at Avenal State Prison argued before the Ninth Circuit that Kon had not exhausted his state remedies as to that asserted violation. The panel on Tuesday disagreed, noting that Kon said in an exhibit to his state habeas petition: “Don’t talk, that’s all I have to say.”
That, the panel said, sufficed.
The case is Kon v. Gamboa, 21-55430.
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