Whether the lower courts erred in failing to find that a defendant made a substantial showing that jurists of reason could disagree on a constitutional issue when the magistrate judge and district court reached opposite conclusions

QUESTION PRESENTED FOR REVIEW The Court has made clear that the prosecution may not use at trial inculpatory statements stemming from custodial interrogation of the defendant by law enforcement when a defendant has invoked his or her right to silence. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966). But custodial interrogation can occur, leading to an incriminating statement that is not constitutionally admissible, even when police are not questioning the subject. When government agents create circumstances establishing the “functional equivalent” of interrogation, the defendant’s inculpatory statements made while in custody and after invoking the right to silence must likewise be suppressed. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682 (1980). The functional equivalent of interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” /d. at 301 (footnote omitted). Meanwhile, the Court has also made clear that the issuance of a certificate of appealability (“COA”) is appropriate, a defendant need only make a substantial showing that jurists of reason could disagree with the district court’s resolution of his constitutional claim or could conclude that the issue is adequate to deserve encouragement to proceed further. Buck v, Davis, 137 S. Ct. 759, 773, 197 L. Ed. 2d 1 (2017). In this case, Petitioner raised the constitutional claim that he was deprived of the right to the effective assistance of appellate counsel when his counsel failed to appeal the district court’s ruling that law enforcement had not presented a situation representing the functional equivalent of interrogation. The task force agent had outlined to Petitioner’s brother how both men were going to be found guilty, how additional raids of additional addresses to lead to additional evidence were underway, and how the two men needed to cooperate against another party, and then placed the brother with Petitioner in the back of a van wired for video and audio recordings. The recordings of the brothers’ discussions that followed yielded inculpating statements of Petitioner. The magistrate judge ruled that it was arguable that the circumstances were, indeed, the functional equivalent of custodial interrogation. The district court demonstrated that this ruling was necessarily debatable by ruling the exact opposite—that the circumstances did not present the functional equivalent of interrogation—and basing its finding that appellate counsel was effective on that precise finding. And yet despite that direct conflict of rulings, the U.S. Court of Appeals for the Ninth Circuit ruled that Petitioner had not made a substantial showing that jurists of reason could disagree with the district court’s decision on a constitutional claim. The question presented, then, is whether the lower courts err in failing to find that a defendant made a substantial showing that jurists of reason could disagree on a constitutional issue when the magistrate judge and district court judged reached opposite conclusions. i