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It does not amount to interrogation in violation of Miranda for a detective to ask a suspect in custody, “Do you want to talk to an attorney or do you want to talk to me without an attorney?” after a suspect invokes but adds "I will talk to you now until I think I need [an attorney]. I don’t need one present at this time."

Albert Cunningham was convicted of murder. The California Supreme Court (“CSC”) affirmed his death sentence and later denied his habeas petition. The district court denied his federal habeas petition but granted a Certificate of Appealability. The Ninth Circuit applied the Antiterrorism and Effective Death Penalty Act standard and concluded that the CSC was not unreasonable in finding (1) no prosecutorial misconduct or Brady violations where the autopsy was admitted at trial without objection, and where defense had the “salient facts” to access victim’s medical records but did not; (2) no plain error where the prosecution told the jury that defense counsel’s job is to “create straw men…put up smoke, red herrings,” that they’d “done a heck of a good job,” and that the state’s job is to “show where the truth lies” (nor where defense counsel failed to object); and (3) no ineffective assistance or prejudice for not introducing evidence at trial or sentencing-phase testimony that was cumulative and would invite rebuttal testimony. The Court agreed that Cunningham invoked his right to counsel by stating, “I want to have an attorney present. I will talk to you now until I think I need one. I don’t need one present at this time,” but affirmed that it did not amount to interrogation in violation of Miranda when detectives twice clarified, “Do you want to talk to an attorney or do you want to talk to me without an attorney?” and Cunningham responded, “I’ll talk to you until I think I need an attorney.” The Court concluded that it was not unreasonable for the state courts to credit the detective’s version of the interview over Cunningham’s, and it was not error to admit Cunningham’s subsequent statements, or in light of other evidence, to find the statements harmless even if made in violation of Miranda. Thus, the district court properly denied Cunningham’s habeas petition. AFFIRMED.