                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ADRIAN REYES,                                  No. 12-56650
         Petitioner-Appellant,
                                                 D.C. No.
                  v.                       5:12-cv-00691-GAF-E

 GREG LEWIS, Warden,
         Respondent-Appellee.                ORDER AND
                                           AMENDED OPINION


         Appeal from the United States District Court
            for the Central District of California
           Gary A. Feess, District Judge, Presiding

          Argued and Submitted November 19, 2014
                    Pasadena, California

                    Filed August 14, 2015
                   Amended August 17, 2016

   Before: William A. Fletcher and Jay S. Bybee, Circuit
  Judges, and James K. Singleton, Senior District Judge.*




 *
   The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
2                REYES V. LEWIS

                     Order;
    Concurrence in Order by Judge W. Fletcher;
       Dissent to Order by Judge Callahan;
         Dissent to Order by Judge Bea;
         Opinion by Judge W. Fletcher;
         Concurrence by Judge Singleton
                          REYES V. LEWIS                               3

                           SUMMARY**


                          Habeas Corpus

    The panel issued an order replacing the opinion filed
August 14, 2015, with an amended opinion, and rejecting an
en banc call, in a case in which the panel reversed the district
court’s denial of a habeas corpus petition alleging that
petitioner’s state-court conviction rested on a confession
obtained in violation of Missouri v. Seibert, 542 U.S. 600
(2004).

    The panel held that Justice Kennedy’s Seibert
concurrence, based on a rationale narrowing the result
reached by the Seibert plurality, constitutes “clearly
established” Supreme Court law for the purpose of AEDPA
review. Under this concurrence, a post-Miranda-warning
statement must be suppressed if interrogating officers
deliberately use the two-step interrogation technique that was
used in Seibert, and if effective curative measures are not
taken to ensure that the suspect genuinely understood the
Miranda warnings. The two-step technique involves
interrogating in successive, unwarned and warned phases.

    The panel held that under the circumstances of this
case¯where police interrogated the fifteen-year-old
petitioner over the course of two days; where on the first day
at a police station they conducted a two-hour unwarned
interrogation; where on the second day at a sheriff’s station
they obtained a confession during an unwarned interrogation

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                      REYES V. LEWIS

following an unwarned polygraph test; and where they
transported the petitioner back to the police station and
obtained a postwarning confession “clarifying” what he had
stated at the sheriff’s station¯a Seibert analysis was clearly
required.

    The panel held that the California Court of Appeal
applied a rule that was contrary to federal law as clearly
established by the Supreme Court in Seibert, and thus was
owed no deference, when it concluded that the petitioner’s
postwarning confession was admissible solely on the ground
that his unwarned custodial statement was voluntary, and that
his subsequent warned statement therefore was also
necessarily voluntary.

    The panel held that police officers deliberately employed
a two-step interrogation technique, and that they did not take
appropriate “curative measures,” in violation of Seibert. The
panel therefore held that the petitioner’s postwarning
confession should have been suppressed.

    The panel remanded with instructions to grant the writ
unless the petitioner is tried within a reasonable time, not to
exceed 180 days.

    Concurring, District Judge Singleton wrote that the
California Court of Appeal’s conclusions of law are in
conformity with Seibert and Justice Kennedy’s concurrence,
but its findings of fact are unreasonable in context.

    Concurring in the denial of rehearing en banc, Judge W.
Fletcher, joined by Judge Bybee, made four points in
response to Judge Callahan’s dissent from the denial of the
petition for rehearing en banc.
                      REYES V. LEWIS                       5

    Dissenting from the denial of rehearing en banc, Judge
Callahan, joined by Judges O’Scannlain, Tallman, Bea, and
Ikuta, wrote that the panel wrongly concludes that Judge
Kennedy’s subjective-intent requirement in Seibert is clearly
established Supreme Court law, wrongly permits federal
courts to read the worst into state court decisions on habeas
review, and wrongly requires all courts to presume the worst
of police officers in applying Seibert.

    Dissenting from the denial of rehearing en banc, Judge
Bea joins Judge Callahan’s dissent, but wrote separately to
reiterate his view that United States v. Davis, 2016 WL
3245043 (9th Cir. June 13, 2016) (en banc), which adopted a
reasoning-based approach when interpreting splintered
Supreme Court decisions rather than a results-based
approach, was wrongly decided.



                        COUNSEL

Elizabeth Armena Missakian (argued), San Diego, California,
for Petitioner-Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney
Genera; David Delgado-Rucci, and Daniel Rodgers, Deputy
Attorneys General; Julie L. Garland, Senior Assistant
Attorney General; Kamala D. Harris, Attorney General;
Office of the Attorney General San Diego, California, for
Respondent-Appellee
6                      REYES V. LEWIS

                           ORDER

   The opinion filed August 14, 2015, and reported at
798 F.3d 815, is hereby amended, and is replaced by the
Amended Opinion attached hereto.

   A judge requested a vote on whether to rehear the case en
banc. The case failed to receive a majority of the votes of the
non-recused active judges in favor of en banc consideration.
See Fed. R. App. P. 35.

    Future petitions for panel rehearing or rehearing en banc
will not be entertained.



W. FLETCHER, concurring in the denial of rehearing en
banc, joined by Judge BYBEE. Judge Singleton may not vote
on petitions for rehearing en banc, but he agrees with what is
written here.

    We make four points in response to Judge Callahan’s
dissent from the denial of the petition for rehearing en banc.

    First, the dissent begins:

            Fifteen-year-old Adrian Reyes confessed
        to killing sixteen-year-old Derek Ochoa in a
        drive-by shooting. He first confessed after
        acknowledging many times that he was not
        under arrest and was not required to talk,
        freely leaving two previous police interviews,
        taking a polygraph that he and his parents not
        only consented to but that Reyes initially
                      REYES V. LEWIS                       7

       suggested, and then asking to speak with
       detectives. After Reyes confessed, those
       detectives drove him to another location
       where they told him that he was no longer free
       to leave and read him his Miranda rights. He
       again confessed.

Dissent at 10.

    An unsuspecting reader might conclude that Reyes was
not in custody when he “first confessed,” and that his first
confession was therefore not taken in violation of Miranda.
The reader would be mistaken. The California Court of
Appeal explicitly held to the contrary. It wrote:

           It is not disputed that defendant was in
       custody after completion of the polygraph
       exam, when [polygraph examiner] Heard told
       defendant he had failed the polygraph test and
       had lied about his nonparticipation in the
       murder. Because defendant was not advised
       of his Miranda rights at this point, his
       statements made thereafter, while at the
       sheriff’s station, were inadmissible under
       Miranda v. Arizona[.]

People v. Reyes, No. D047521, 2010 WL 3026227, at *7
(Cal. Ct. App. Aug. 4, 2010).

    Second, the dissent contends that Justice Kennedy’s
concurrence in Missouri v. Seibert, 542 U.S. 600 (2004), does
not provide the controlling test in two-step interrogation
cases. We first concluded in 2006 that Justice Kennedy’s
concurrence provides the controlling test. See United States
8                      REYES V. LEWIS

v. Williams, 435 F.3d 1148 (9th Cir. 2006). Of the seven
circuits that have addressed the issue, six agree with us. See
United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010);
United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.
2007); United States v. Street, 472 F.3d 1298, 1313 (11th Cir.
2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.
2006); United States v. Kiam, 432 F.3d 524, 532 (3d Cir.
2006); United States v. Mashburn, 406 F.3d 303, 309 (4th
Cir. 2005). The seventh concludes that Justice Souter’s
plurality controls. See United States v. Ray, 803 F.3d 244,
272 (6th Cir. 2015). That conclusion cannot help the dissent
because Justice Souter’s test is less favorable to police
interrogators; an interrogation that fails Justice Kennedy’s
test will necessarily fail Justice Souter’s test. Three other
circuits have applied both Justice Kennedy and Justice
Souter’s tests without choosing between the two. See United
States v. Widi, 684 F.3d 216, 221 (1st Cir. 2012); United
States v. Lee, 618 F.3d 667, 678 (7th Cir. 2010); United
States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir.
2006).

    Third, the dissent contends that our opinion “permits
federal courts to read the worst into state court decisions on
habeas review,” and that it “requires all courts to presume the
worst of police officers in applying Seibert.” Dissent at 11.
We strongly disagree. We carefully provide AEDPA
deference to the decision of the California Court of Appeal,
and our opinion presumes the contrary.

    Two of us, Judges Fletcher and Bybee, conclude that the
Court of Appeal misunderstood both Miranda and Seibert,
and that its decision was “contrary to” those cases, when it
tested the validity of Reyes’s confession based on whether it
had been voluntary. It has been clearly established Supreme
                       REYES V. LEWIS                          9

Court law, ever since Miranda, that the test for admissibility
of a confession is not whether it was voluntary. Rather, the
test is whether it was taken in violation of Miranda.

    All three of us conclude that the Court of Appeal made an
“unreasonable determination of the facts” in concluding that,
in employing their two-step interrogation, the officers did not
deliberately undermine the effectiveness of the Miranda
warning that was eventually provided. We describe in
painstaking detail every interaction between the officers and
Reyes. We unanimously conclude that a court cannot
reasonably determine, based on the factual record, that the
officers did not deliberately undermine the effectiveness of
the Miranda warning.

   Fourth, the dissent says that our decision “let[s] a
confessed murderer walk.” Dissent at 11. We are not as
confident as the dissent that Reyes is, in fact, a murderer.
There is reason to believe that fifteen-year-old Reyes
confessed to a crime he did not commit.

    Except for Reyes’s confession, the evidence at trial
pointed to Reyes’s cousin, Munoz, as the shooter. It is
undisputed that Reyes was a passenger in the back seat, and
that Munoz was the driver. Two witnesses testified that the
driver of the car shot the victim. One of those witnesses
identified Munoz as the driver and shooter. The other witness
testified that the driver was the shooter, but could not identify
Munoz. Two other witnesses testified that they heard shots,
but did not see the shooting. None of the witnesses testified
that the shooter had been a passenger in the back seat.

    Reyes did not want to snitch on his older cousin. During
the interrogation, Reyes said, “Well, if I say something like
10                     REYES V. LEWIS

what’s going to happen with my cousin? Is he still gonna go
to jail? . . . He had nothing to do with it.” Further, Reyes may
well have thought that a confession would have limited
adverse consequences for him. Before Reyes made his in-
custody confession, Officer Heard had told him, “[Y]ou have
my word I won’t trick you,” and “Fifteen-year-olds don’t go
to state prison, Adrian.”

    In sum, our opinion gives full deference under AEDPA to
the decision of the California Court of Appeal. After careful
consideration of the entire record and of the decision of the
Court of Appeal, we conclude that the decision was “contrary
to” Seibert, and that it was based on an unreasonable factual
determination that the interrogating officers did not
deliberately undermine the effectiveness of their belated
Miranda warning.



CALLAHAN, Circuit Judge, with whom, O’SCANNLAIN,
TALLMAN, BEA, and IKUTA, Circuit Judges, join,
dissenting from the denial of rehearing en banc:

    Fifteen-year-old Adrian Reyes confessed to killing
sixteen-year-old Derek Ochoa in a drive-by shooting. He first
confessed after acknowledging many times that he was not
under arrest and was not required to talk, freely leaving two
previous police interviews, taking a polygraph that he and his
parents not only consented to but that Reyes initially
suggested, and then asking to speak with detectives. After
Reyes confessed, those detectives drove him to another
location where they told him that he was no longer free to
leave and read him his Miranda rights. He again confessed.
A jury found Reyes guilty of first-degree murder. The state
                       REYES V. LEWIS                       11

appellate court affirmed, the California Supreme Court denied
Reyes’s petition for review, and the U.S. Supreme Court
denied certiorari. In a supreme display of Ninth Circuit
legerdemain, the panel majority reviewed de novo, found that
Reyes’s confession was obtained in violation of Missouri v.
Seibert, 542 U.S. 600 (2004), and thus reversed the district
court’s denial of habeas relief. The panel truly conjured its
magic from nothing—the panel did not watch the videos of
the police interviews, Reyes argued to the state appellate
court that a deliberate Miranda violation was not at issue, and
Reyes never mentioned Seibert in federal court until the panel
told him to.

    Like the district court and state court judges, I disagree
with the panel, which makes three errors of exceptional
importance. First, the panel wrongly concludes that Justice
Kennedy’s subjective-intent requirement in Seibert, which
seven other Justices rejected, is clearly established Supreme
Court law. Second, the panel wrongly permits federal courts
to read the worst into state court decisions on habeas review.
Third, the panel wrongly requires all courts to presume the
worst of police officers in applying Seibert. The panel’s
decision not only misunderstands Seibert, conflicts with our
recent en banc decisions, and creates circuit splits, but also
threatens to interfere with reasonable police work and let a
confessed murderer walk.

    I respectfully dissent from this court’s failure to rehear
this case en banc.

                              I.

   This case’s background is important to understanding
how far the panel strayed from the scope of its review under
12                     REYES V. LEWIS

the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). While the panel’s coverage of this background is
incomplete in other respects, I will only supplement the
panel’s depiction of Reyes’s third police interview and this
case’s procedural history.

A. Factual background

    Police officers questioned Reyes about Ochoa’s murder
on January 13, 2006, February 9, 2006, and February 10,
2006. Reyes was told that he was not under arrest at the first
two interviews, and he left both interviews free. At the
February 9th interview, Reyes offered to take a polygraph
test.

    The following day, Reyes voluntarily returned to the San
Bernardino County Sheriff’s station to take the polygraph
test. Reyes’s parents consented to the test, which Robert
Heard, the San Bernardino Sheriff’s polygrapher,
administered. Heard first explained at great length that Reyes
was not under arrest, and Reyes responded that he
understood. Heard noted that Reyes’s parents had given
permission for Reyes to take the test but emphasized that
“[t]he decision on whether or not Adrian is gonna take a
polygraph exam is with Adrian. That’s your decision.
Okay?” Heard reiterated, “After we talk or at any time you
can say you know what Bob? I ain’t spillin’, I don’t wanna
talk to you anymore. I wanna go. Just say so. You’re out a
here, you’re gone, you with me?” Reyes said he understood.
Heard walked Reyes through a consent form in detail. Reyes
read part of the form aloud, stating “I understand that I cannot
be forced to take this test. And you know what? I have the
right at any time to leave . . . my examination room.” Reyes
confirmed that he understood the consent form and signed it.
                       REYES V. LEWIS                        13

    After several “dry runs” during which Reyes contradicted
his previous narrative by placing himself in the silver Toyota
Camry involved in the shooting near the scene and time of
Ochoa’s murder, Reyes took the polygraph and denied
involvement in the murder. Heard told Reyes that he failed
the test. Heard continued questioning, appealed to the
importance of telling the truth, and suggested that Reyes tell
him if there were any mitigating circumstances. Reyes stated
a few times that he didn’t want to talk any more during the
questioning that followed, but he never sought to end the
interview and leave. Reyes asked what would happen if he
didn’t say anything. Heard responded that the investigation
would continue—“They’re gonna work it, and they’re gonna
put it together.” Reyes later said he didn’t want to talk “cause
even if I say anything or if I don’t, everybody[] that they got
on the list is gonna do 25 years prison.” Reyes asked, “So if
I say who the shooter was, I’m still gonna go to jail?” Heard
responded more than once that he did not have an answer to
that question, though Heard had previously stated that fifteen-
year olds don’t go to state prison.

    Reyes asked for some time and Heard offered to wait
outside, but Reyes then said “No, it’s alright.” After Heard
asked another question, Reyes responded “not that I know,
you know, so don’t ask any question.” Heard asked Reyes if
he wanted to be alone, and Reyes responded “No, it’s just,
just don’t ask any questions.” When Heard said he was not
just going to sit there and do nothing, Reyes asked, “Can we
just call the detectives?”

    Shortly thereafter, in the same room, Detectives Brandt
and Medici questioned Reyes. When Brandt asked whether
Reyes was in the front passenger seat, Reyes stated “No, I’ll
say nothing, man.” Reyes refused to identify the other person
14                     REYES V. LEWIS

in the car and stated that “we’re still gonna do time in jail
anyway.” Detective Brandt responded that the jail time “may
be minimal or it, it may be a lot, but like we told you
yesterday, uh, people have, you have to tell the, the truth.”
Detective Brandt later asked Reyes how many 15-year olds
he knew that went to jail for 25 years and why Reyes would
be any different. Later in the interrogation, however, Reyes
continued to acknowledge that he would do “25 years to life”
if he shot Ochoa.

    Not long after the Detectives began questioning, Reyes
confessed that he shot Ochoa: “I just shot.” As Ochoa
approached the car, Reyes felt afraid and “got mad. [He]
opened the door so he would like back up.” Then he shot. As
the panel majority observes, “Reyes’s statement that he had
shot Ochoa came early in the interview, on the seventh page
of the transcript.” Maj. Op. 48. After this confession, the
detectives continued questioning and tried unsuccessfully to
determine who else was involved.

    After the interview at the San Bernardino Sheriff’s station
concluded, Detective Brandt drove Reyes back to the
Riverside police station where Detectives Brandt and Medici
again questioned Reyes. It is unclear how much time passed,
but the panel states that the station was 15 miles away. At the
beginning of the interview, Brandt explained that Reyes was
no longer free to leave and thus Brandt was required to read
Reyes his Miranda rights. After reading him his rights,
Brandt then asked if they could “talk about stuff we talked
about earlier today?” Reyes said yes. In the interrogation
that followed, the detectives did not use the earlier interview
to impeach Reyes. The only reference back was to an earlier
statement by Reyes that Ochoa had thrown something at the
                            REYES V. LEWIS                               15

car. Reyes admitted to shooting Ochoa but said Ochoa
looked like he also had a gun.

B. Procedural background

     Reyes was charged in California Superior Court with
first-degree murder. At the outset of the trial, Reyes sought
to suppress the statements he had made to law enforcement
on February 10, 2006. Following an evidentiary hearing, the
trial judge suppressed the statements Reyes made before
being advised of his Miranda rights, finding that Reyes had
been in custody. The trial judge did not suppress the post-
warning statements. The jury found Reyes guilty of first-
degree murder with gang and firearm enhancements.

     Reyes appealed, claiming, among other things, that the
trial court erred in admitting his post-warning confession.
Reyes argued that “the coercive atmosphere of the
involuntary statements was never dissipated” and that the
“admonition of rights was too little, too late.” He did not
argue that the detectives deliberately violated Miranda. In
fact, Reyes argued at length in his reply brief in the state
appellate court that the State had incorrectly characterized
Seibert as requiring “coordinated interrogation tactics
designed to produce an unwarned confession.”1 In other


  1
    The State had argued in its answering brief that there was no Miranda
violation and that Seibert was distinguishable because, among other
reasons, “[t]here was no evidence of a police policy of coordinated tactics
designed to produce an un-warned confession.” In one paragraph of his
state habeas petition, Reyes argued that some tactics that the officers used,
namely sneering and refusing to “respect petitioner’s efforts to end the
interrogation,” were “deliberate” and “flagrant” misconduct. But he did
not argue that the officers employed a two-part interrogation in deliberate
violation of Miranda, even after the State had addressed this issue.
16                     REYES V. LEWIS

words, according to Reyes, whether the officers deliberately
employed a two-part interrogation tactic designed to
undermine the import of subsequent Miranda warnings was
not at issue. Rather, the operative question, according to
Reyes himself, was whether “appellant’s post-polygraph
statements were voluntary,” and, if not, “whether the taint
from the involuntary admissions was dissipated before the
stationhouse admissions were made.”

    The state appellate court affirmed in a lengthy, reasoned
decision. People v. Reyes, No. D047521, 2010 WL 3026227
(Cal. Ct. App. Aug. 4, 2010). Because it was uncontested that
the detectives did not violate Miranda in bad faith, the state
appellate court agreed with Reyes on the relevant legal
inquiry. The court explained, “[A]s defendant recognizes, the
fact the interrogation at the sheriff’s station was not
accompanied by Miranda advisals does not invalidate the
later Mirandized statements unless the later admissions were
in fact involuntary or the tainted product of the initial
statements or confession.” Id. at *12. Applying this
standard, the court determined that Reyes’s pre- and post-
warning confessions were voluntary and thus the post-
warning confession was admissible. The court distinguished
Seibert, explaining that “the circumstances in the instant case
need not ‘be seen as challenging the comprehensibility and
efficacy of the Miranda warnings to the point that a
reasonable person in the suspect’s shoes would not have
understood them to convey a message that [he] retained a
choice about continuing to talk.’” Id. at *13 (alteration in
original) (quoting Seibert, 542 U.S. at 616 (plurality
opinion)).

   Reyes sought review of the state appellate court’s
decision by the California Supreme Court. In his briefs
                       REYES V. LEWIS                         17

before the California Supreme Court, Reyes did not mention
Seibert. The California Supreme Court denied his petitions.
The U.S. Supreme Court denied certiorari.

    Reyes then filed a petition for habeas corpus in federal
district court. In his briefs below, he again did not mention
Seibert. Magistrate Judge Eick issued a 53-page report and
recommendation that relief be denied. District Judge Feess
adopted the report in full. Consistent with Reyes’s
arguments, and like the state appellate court, the district court
focused on whether a reasonable jurist could conclude that
Reyes’s confessions were voluntary. However, the district
court raised and distinguished Seibert because “there is no
evidence that the law enforcement officers deliberately
applied a two-step method, and the state courts reasonably
concluded that Petitioner’s post-warning statements were
voluntarily made.”

    Reyes then appealed to the Ninth Circuit. On appeal, he
did not cite Seibert or take issue with the district court’s
conclusion that the detectives had not employed a two-part
interrogation in deliberate violation of Miranda. The panel
nonetheless ordered “supplemental briefing on the
applicability of [Seibert] to this case.” Reyes’s supplemental
brief marked the first time that he clearly argued that the
officers’ “failure to warn . . . was not made in good faith and
was . . . a deliberate attempt to deprive him of his
constitutional rights.” The panel reviewed de novo the
Seibert argument that it directed Reyes to make and, after
engaging in appellate fact-finding on a record that did not
even include the videos of the police interviews, found it
18                        REYES V. LEWIS

persuasive.2 The panel thus reversed the district court’s
denial of habeas relief and ordered that relief be granted if
Reyes is not retried for Ochoa’s now ten-and-a-half-year-old
murder.

                                  II.

   In reversing the district court’s denial of habeas relief, the
panel committed three critical errors, any one of which should
have prompted en banc review.

A. The panel wrongly concluded that Justice Kennedy’s
   lone concurrence in Seibert is clearly established
   Supreme Court law.

    The panel’s amended opinion holds that Justice
Kennedy’s lone concurrence in Seibert is clearly established
law under the reasoning-based approach to applying Marks v.
United States, 430 U.S. 188 (1977). We recently adopted the
reasoning-based or “common-denominator-of-the-reasoning
rule” in United States v. Davis, — F.3d —, 2016 WL
3245043 (9th Cir. June 13, 2016) (en banc). In Davis, we
concluded that Justice Sotomayor’s concurrence in Freeman
v. United States, 564 U.S. 522 (2011), was not controlling
under the reasoning-based rule because the Freeman plurality
and dissent explicitly rejected the concurrence’s reasoning.
Davis, 2016 WL 3245043, at *6 (“The Freeman plurality
explicitly rejected the concurrence’s reasoning.”); id. at *9
(“The Freeman dissent is similarly critical of Justice
Sotomayor . . . .”); see also id. (emphasizing that “Justice


  2
    The state appellate court and district court referenced videos of the
interviews, but none was included in the record. Reyes, 2010 WL
3026227, at *6.
                             REYES V. LEWIS                                 19

Sotomayor explicitly” rejected the dissent’s rule). We
concluded that “[t]his fundamental divergence in reasoning
is enough to demonstrate that Justice Sotomayor’s rationale
is not controlling Supreme Court law.” Id. at *6. We
explained that this conclusion is reinforced by the fact that
there may be cases where relief would be granted under the
concurrence’s rule but not the plurality’s rule. Id. at *6–7.

    Applying the common-denominator-of-the-reasoning
Marks rule to Seibert, other circuit courts have found that
Justice Kennedy’s Seibert concurrence is “obviously not the
‘common denominator’ that Marks was talking about.”
United States v. Heron, 564 F.3d 879, 883–87 (7th Cir. 2009);
see also United States v. Ray, 803 F.3d 244, 270–72 (6th Cir.
2015). Just as the plurality and dissent expressly rejected
elements of Justice Sotomayor’s reasoning in Freeman, the
plurality and dissent expressly (and even more emphatically)
rejected Justice Kennedy’s reasoning in Seibert. As the Sixth
Circuit explained,“three of the four Justices in the plurality
and the four dissenters decisively rejected any subjective
good faith consideration, based on deliberateness on the part
of the police.”3 Ray, 803 F.3d at 271 (quoting United States


 3
   See Seibert, 542 U.S. at 616 n.6 (plurality opinion) (“[T]he focus is on
facts apart from intent . . . .”); id. at 623 (O’Connor, J., dissenting) (“[T]he
plurality correctly declines to focus its analysis on the subjective intent of
the interrogating officer.”); id. at 624 (“The plurality’s rejection of an
intent-based test is also, in my view, correct.”); id. at 625–26
(“[R]ecognizing an exception to [Oregon v. Elstad, 470 U.S. 298 (1985)]
for intentional violations would require focusing constitutional analysis on
a police officer’s subjective intent, an unattractive proposition that we all
but uniformly avoid.”); id. at 626–27 (“[T]he approach espoused by
Justice Kennedy is ill advised . . . . This approach untethers the analysis
from facts knowable to, and therefore having any potential directly to
affect, the suspect.”).
20                     REYES V. LEWIS

v. Rodriguez-Preciado, 399 F.3d 1118, 1139–41 (9th Cir.
2005) (Berzon, J., dissenting)); see also United States v.
Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006).
Under the reasoning-based Marks rule, reasoning expressly
rejected by at least seven Justices cannot be elevated to the
status of controlling Supreme Court law.

     As in Davis, this conclusion is reinforced by the fact that
there are likely to be cases where relief would be granted
under Justice Kennedy’s test but not the plurality’s test. The
plurality’s test is concerned with the effectiveness of the
belated Miranda warnings. The plurality looks to “the
completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the
two statements, the timing and setting of the first and the
second, the continuity of police personnel, and the degree to
which the interrogator’s questions treated the second round as
continuous with the first.” Seibert, 542 U.S. at 615. These
and other objective facts are relevant to assessing whether “a
reasonable person in the suspect’s shoes would [] have
understood [the Miranda warnings] to convey a message that
she retained a choice about continuing to talk.” Id. at 617.
By contrast, Justice Kennedy looks first to whether the police
deliberately violated Miranda and, if so, whether the officers
used “curative measures . . . before the postwarning statement
is made,” such as “an additional warning that explains the
likely inadmissibility of the prewarning custodial statement.”
Id. at 622.

    There are likely to be cases involving deliberate Miranda
violations where most of the plurality’s “effectiveness
factors” are met but, because no explanation of the pre-
warning statement’s inadmissibility or other “specific,
curative step” was taken, Justice Kennedy’s curative
                          REYES V. LEWIS                             21

measures requirement isn’t. Similarly, there are likely cases
involving deliberate violations where Justice Kennedy’s
curative-measures requirement is met because “specific,
curative steps” were taken, such as a warning that the pre-
Miranda confession could not be used against the suspect, but
the plurality’s effectiveness requirement isn’t. For example,
the plurality’s effectiveness requirement may not be satisfied
because of “the completeness and detail of the questions and
answers in the first round of interrogation, the overlapping
content of the two statements, the timing and setting of the
first and the second, [and] the continuity of police personnel.”
Id. at 615.

    It is true that some courts have held that Justice
Kennedy’s concurrence is controlling. However, just as the
Davis opinion observed in distinguishing other circuits’
treatment of Freeman, all of these courts “engage with Marks
only superficially, quoting its language with no analysis,”
Davis, 2016 WL 3245043, at *8, and apparently applying a
results-based Marks rule.4 It is clear that the panel’s amended
opinion creates an additional circuit split on how the




  4
    United States v. Carter, 489 F.3d 528, 535–36 (2d Cir. 2007) (without
mentioning Marks, summarily ruling that Seibert established an exception
to Elstad); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.
2007) (concluding without explanation that Justice Kennedy’s
concurrence is controlling because it is “narrower”); United States v.
Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (same); United States v.
Street, 472 F.3d 1298, 1313 (11th Cir. 2006) (same); United States v.
Naranjo, 426 F.3d 221, 231–32 (3d Cir. 2005) (same); United States v.
Mashburn, 406 F.3d 303, 308–09 (4th Cir. 2005) (same).
22                          REYES V. LEWIS

reasoning-based Marks rule applies to Seibert. See Ray,
803 F.3d at 267–73; Heron, 564 F.3d at 883–87.5

    Evidently, the upshot of our en banc decision in Davis is
that fractured Supreme Court decisions like Seibert are
binding on state courts but not on us. But the panel’s
conclusion that Seibert is binding on state courts is even more
questionable under AEDPA. At the very least, the “fair-
minded disagreement” between circuit courts on whether
Seibert created any controlling rule, shows that Justice
Kennedy’s deliberateness requirement is not “clearly
established law” within the meaning of AEDPA.6 See White
v. Woodall, 134 S. Ct. 1697, 1703 (2014); Harrington v.
Richter, 562 U.S. 86, 102–03 (2011).

B. The panel violated AEDPA by presuming that the
   state appellate court did not understand and follow
   clearly established law.

    Even if Justice Kennedy’s concurrence were clearly
established Supreme Court law, the panel violated AEDPA.
The panel majority deemed itself unfettered by AEDPA

  5
   The Tenth Circuit similarly questioned whether Seibert established a
controlling rule, but found it unnecessary to reach the issue. Carrizales-
Toledo, 454 F.3d at 1151. The First and D.C. Circuits have also expressed
skepticism. United States v. Straker, 800 F.3d 570, 617 (D.C. Cir. 2015);
United States v. Verdugo, 617 F.3d 565, 575 (1st Cir. 2010).
 6
   The panel’s statement that the Sixth Circuit found the Seibert plurality
opinion controlling in Ray is wrong. In Ray, the Sixth Circuit found that
Seibert did not establish a controlling rule, and then chose to adopt as
binding the rule articulated by the four-Justice plurality. Ray, 803 F.3d at
272. The panel fails to understand that a fractured Supreme Court
decision that did not establish a controlling rule is not clearly established
Supreme Court law under AEDPA.
                           REYES V. LEWIS                               23

because, in its view, the state appellate court’s decision did
not expressly make a finding regarding the deliberateness
element of Justice Kennedy’s test in Seibert. However, the
state appellate court’s decision is readily reconciled with
Seibert.

     First, several parts of the state appellate court’s decision
may be read to acknowledge expressly that the detectives did
not deliberately violate Miranda. The court found “no
evidence that defendant was coerced into waiving his rights,”
and explained that Detective Brandt “advise[d] [Reyes] of his
Miranda rights before questioning him further” at the police
station because Brandt no longer regarded Reyes as being
“free to leave.” Reyes, 2010 WL 3026227, at *6, 13. The
state appellate court also distinguished People v. Neal,
31 Cal. 4th 63, 80–81 (2003), “in which a police detective
intentionally continued interrogation in deliberate violation of
Miranda.” Id. at *9. Moreover, the state court’s decision
tacitly acknowledges, as the record confirms, that Reyes did
not even contend that the officers violated Miranda in bad
faith. The court explained that, accordingly, “as defendant
recognizes, the fact the interrogation at the sheriff’s station
was not accompanied by Miranda advisals does not invalidate
the later Mirandized statements unless the later admissions
were in fact involuntary or the tainted product of the initial
statements or confession.” Id. at *12 (emphasis added). This
is the correct inquiry under Justice Kennedy’s Seibert test in
cases where it is undisputed that the officers did not violate
Miranda in bad faith.7


  7
    The panel fundamentally misses the point of Seibert and Elstad in
arguing that “that the test for admissibility of a confession is not whether
it was voluntary [but] whether it was taken in violation of Miranda.”
Concurrence at 3. Again, even where a pre-warning interview was
24                        REYES V. LEWIS

    The panel does not attempt to address this textual
evidence that the state court correctly understood the law. In
any case, such parsing of sentences in the state court’s
decision takes us beyond our role under AEDPA. Even if the
decision were silent or ambiguous on whether the detectives
deliberately violated Miranda, de novo review is still
foreclosed. Under controlling Supreme Court precedent, we
must presume “state courts know and follow the law,” give
state courts “the benefit of the doubt,” and make an “effort to
reconcile” the reasoning of state courts with controlling
Supreme Court rules. Woodford v. Visciotti, 537 U.S. 19, 24
(2002); see also Renico v. Lett, 559 U.S. 766, 773 (2010);
Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997); Poyson v.
Ryan, 743 F.3d 1185, 1199 (9th Cir. 2013), as amended
(Apr. 2, 2014) (“AEDPA does not allow us to presume from
an ambiguous record that the state court applied an
unconstitutional standard.”), overruled on other grounds by
McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc).
Like its first major error, the panel’s second error also
conflicts with a recent en banc decision of this court. The
panel majority’s reasoning is clearly irreconcilable with our
rule in Mann v. Ryan, — F.3d —, 2016 WL 3854234, at *11
(9th Cir. July 15, 2016) (en banc), that if “we can read the
[state court] decision to comport with clearly established
federal law, we must do so.”

    Second, as Judge Singleton explained in his concurrence
in this case, the state court’s analysis can also be reconciled
with Seibert if the decision is read to have found that the


custodial and thus administered in violation of Miranda, a post-warning
confession remains admissible under Justice Kennedy’s concurrence so
long as the officers did not deliberately violate Miranda and the
confession was voluntary.
                      REYES V. LEWIS                       25

Miranda warnings were effective. The state court made the
following finding in distinguishing Seibert:

       Unlike in Missouri v. Seibert (2004) 542 U.S.
       600, 616, the circumstances in the instant case
       need not “be seen as challenging the
       comprehensibility and efficacy of the
       Miranda warnings to the point that a
       reasonable person in the suspect’s shoes
       would not have understood them to convey a
       message that [he] retained a choice about
       continuing to talk.” (Id. at p. 616.)

Reyes, 2010 WL 3026227, at *13. This finding of
effectiveness provides an additional ground for distinguishing
Seibert, even assuming that the detectives deliberately
violated Miranda. Under either ground, the panel majority
erred in “free[ing] itself from AEDPA’s strictures.” Kernan
v. Hinojosa, 136 S. Ct. 1603, 1605 (2016) (per curiam). As
explained below, we need not reach the question whether the
state appellate court’s effectiveness finding was an
objectively unreasonable application of Seibert because a
reasonable jurist could conclude that any Miranda violation
was unintentional.

C. The panel wrongly presumed that the police violated
   Miranda in bad faith, and conflated the deliberateness
   of a Miranda violation with the effectiveness of a
   subsequent Miranda warning.

    Even if de novo review were appropriate, the panel’s
decision misinterprets Seibert and creates bad law on how
courts should assess whether police officers deliberately
violated Miranda.
26                     REYES V. LEWIS

    The panel begins its analysis of whether the detectives
deliberately violated Miranda by stating, “‘the most plausible
reason’ for delaying Miranda warnings until after a suspect
has confessed ‘is an illegitimate one, which is the
interrogator’s desire to weaken the warning’s effectiveness.’”
Maj. Op. 67 (quoting United States v. Williams, 435 F.3d
1148, 1159 (9th Cir. 2006)). The panel’s presumption of bad
faith is contrary to Justice Kennedy’s concurrence in Seibert,
effectively overrules Elstad, and removes a habeas corpus
petitioner’s burden of proving a constitutional violation. See
Thompson v. Runnels, 657 F.3d 784, 788–91 (9th Cir.)
(Callahan, J., dissenting from denial of rehearing en banc)
(explaining that “contrary to the majority’s assertion, . . .
Seibert did not overrule Elstad”), vac’d sub nom. McEwen v.
Thompson, 132 S. Ct. 578 (2011).

     As the State points out, nothing in Seibert “suggests that
it is necessary or proper to presume wrongdoing on the part
of police.” Justice Kennedy explained that his test would
apply only “in the infrequent case” where detectives
deliberately violated Miranda. Seibert, 542 U.S. at 622. He
emphasized that in most cases “[t]he admissibility of
postwarning statements should continue to be governed by
the principles of Elstad.” Id. He “suggested a number of
plausible reasons why an officer might legitimately wait to
deliver Miranda warnings, including that ‘[a]n officer may
not realize that a suspect is in custody and warnings are
required.’” United States v. Stewart, 536 F.3d 714, 720 (7th
Cir. 2008) (alteration in original) (quoting Seibert, 542 U.S.
at 620 (Kennedy, J., concurring in the judgment)).

    Other circuits have rightly refused to presume that police
officers act in bad faith. See, e.g., id. at 720–21; Carrizales-
Toledo, 454 F.3d at 1153 (concluding that there was no
                       REYES V. LEWIS                         27

deliberate two-step interrogation because “it is likely that [the
officer] failed to provide the Miranda warning because at that
point it was unclear whether [the suspect] was in custody”).
Indeed, the Supreme Court has admonished that “the task of
defining ‘custody’ is a slippery one, and police[ officers]
investigating serious crimes [cannot realistically be expected
to] make no errors whatsoever.” Elstad, 470 U.S. at 309
(second alteration in original). Where police officers
engrossed in the moment mistake the difficult line between
custodial and non-custodial interviews, we will not suppress
subsequent warned and voluntary “admissions of guilt by
wrongdoers, [which] are inherently desirable.” Id. at 305
(quoting United States v. Washington, 431 U.S. 181, 187
(1977)).

    The panel also misconstrued Seibert, collapsed the
plurality and concurrence’s tests, and effectively overruled
Elstad by conflating the issue of whether the detectives
deliberately violated Miranda with the issue of whether the
midstream-Miranda warning was effective. The majority
found indicative of deliberateness the facts that the pre-
warning and post-warning confessions overlapped in content,
the detectives did not take specific curative measures, and
there was overlap in personnel. These facts do not pertain to
the subjective intent of the detectives; they pertain to
assessing whether “a reasonable person in the suspect’s shoes
would . . . have understood [the midstream-Miranda
warnings] to convey a message that she retained a choice
about continuing to talk.” Seibert, 542 U.S. at 617 (plurality
opinion).

    At best, such evidence is neutral on whether detectives
deliberately violated Miranda. For example, the fact that
“Reyes provided essentially the same information,” Maj. Op.
28                     REYES V. LEWIS

69, during the warned and unwarned interrogations has little
bearing on whether the detectives deliberately violated
Miranda. Of course Reyes’s pre-warning confession to
murdering Ochoa overlapped with his post-warning
confession to murdering Ochoa. How could it be otherwise?
If “there was no earlier confession to repeat,” Seibert would
not apply and we would not need to consider deliberateness.
Bobby v. Dixon, 132 S. Ct. 26, 31 (2011) (per curiam).
Similarly, the fact that “Brandt did not take curative
measures,” Maj. Op. 70, is relevant to whether the
midstream-Miranda warning was effective. But this fact does
not show that detectives who clearly endeavored to create a
non-custodial interview employed a two-part interrogation in
deliberate violation of Miranda. If the detectives thought the
pre-warning interview was non-custodial, then they would
have thought such “corrective measures” to have been
unnecessary. The panel’s view that Brandt “played down”
the importance of the Miranda warnings by stating that he
wanted “just to clarify stuff,” id., also is relevant to whether
the midstream-Miranda warning was effective. But such
statements do not establish a deliberate Miranda violation.
Again, if the detectives thought the pre-warning interview
was non-custodial, they would have seen no problem with
referencing it.     As Justice Kennedy noted, “Skilled
investigators often interview suspects multiple times, and
good police work may involve referring to prior statements to
test their veracity or to refresh recollection.” Seibert,
542 U.S. at 620.

    The panel also found the fact that the “three Riverside
police officers involved in the case—Brandt, Wheeler and
Medici—were all experienced officers” to evidence a
deliberate Miranda violation. Maj. Op. 69. But the fact that
the officers were seasoned is just as likely to evidence that
                       REYES V. LEWIS                         29

they understood Miranda and endeavored to keep the
interview non-custodial. Similarly, the fact that the
detectives “obtained the incriminating information from
Reyes very early in the unwarned custodial interrogation,”
Maj. Op. 70–71, does not evidence a deliberate Miranda
violation. Rather, that Reyes quickly confessed once the
detectives entered, at Reyes’s request, shows that the officers
would have had little reason to believe that Reyes no longer
felt free to leave and thus that the interview had become
custodial.

    Inexplicably, the panel went as far as to attribute bad faith
to the detectives because they questioned Reyes “in a
nonconfrontational, sympathetic way, with the result that
Reyes was made to feel . . . comfortable . . . and laugh[].” Id.
As explained below, this fact and many others that the panel
ignored show that a reasonable jurist could find that the
detectives did “not realize that [the] suspect [was] in custody
and warnings [were] required,” which is a good-faith reason
for not delivering Miranda warnings earlier. Seibert,
542 U.S. at 620 (Kennedy, J., concurring in the judgment).

D. The state appellate court and federal district court
   correctly found that the detectives did not deliberately
   violate Miranda and that Reyes’s post-warning
   murder confession was admissible.

    Under AEDPA, the state court’s determination that no
Miranda violation occurred is entitled to deference and
should be upheld as long as “fairminded jurists could
disagree” on the correctness of the state court’s decision.
Harrington, 562 U.S. at 101. Even if de novo review applied
here, however, the panel erroneously concluded that the
detectives deliberately violated Miranda. The weight of
30                         REYES V. LEWIS

objective and subjective evidence favors the view that the
reason that the pre-warning interview was unwarned is that
the officers believed that Reyes was not in custody. After all,
Reyes was repeatedly told that he was not under arrest and
was free to leave, left two previous interviews free, requested
the polygraph interview, consented to it verbally and in
writing, and then asked to speak to the detectives after its
conclusion. Under applicable case law, these facts and many
others weigh strongly in favor of the view that the officers
reasonably viewed the pre-warning interview to have been
non-custodial.

    For example, following the Supreme Court, “[w]e have
consistently held that a defendant is not in custody when
officers tell him that he is not under arrest and is free to leave
at any time,” United States v. Bassignani, 575 F.3d 879, 886
(9th Cir. 2009), as the officers here repeatedly told Reyes.8
Courts have also consistently held that the fact that a
defendant came to the police station voluntarily, as Reyes did
here, weighs in favor of the view that he was not in custody.
Beheler, 463 U.S. at 1122 (noting that the suspect
“voluntarily agreed to accompany police to the station




   8
     See also Howes v. Fields, 132 S. Ct. 1181, 1185 (2012) (“Most
important, respondent was told at the outset of the interrogation, and was
reminded again thereafter, that he could leave . . . .”); California v.
Beheler, 463 U.S. 1121, 1122 (1983) (per curiam); Oregon v. Mathiason,
429 U.S. 492, 495 (1977); United States v. Crawford, 372 F.3d 1048, 1060
(9th Cir. 2004) (en banc) (“Perhaps most significant for resolving the
question of custody, Defendant was expressly told that he was not under
arrest . . . .”); Dyer v. Hornbeck, 706 F.3d 1134, 1136–40 (9th Cir. 2013);
United States v. Norris, 428 F.3d 907, 912 (9th Cir. 2005).
                           REYES V. LEWIS                             31

house”).9 Courts have also held that the fact that a defendant
consented in writing to a polygraph test, as Reyes did here, is
powerful evidence that the defendant was not in custody.
People v. Ochoa, 19 Cal. 4th 353, 402 (Cal. 1998).

    Still other objective facts support the view that the
detectives reasonably believed that Reyes did not view
himself to be in custody. For example, the detectives released
Reyes after two previous interviews. See, e.g., Beheler,
463 U.S. at 1122 (emphasizing that “Beheler was permitted
to return to his home”). The officers did not restrain Reyes
in the exam room or yell at him. They permitted Reyes to
give narrative answers and “appealed to his interest in telling
the truth and being helpful.” Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). These are all signs that the officers
endeavored to keep the pre-warning interview non-custodial,
not to violate Miranda in bad faith.

    Moreover, the panel concedes that there is no subjective
evidence that the detectives deliberately violated Miranda.
There is, however, subjective evidence that they did not. As
the state appellate court observed, Detective Brandt stated
before giving the Miranda warnings that the warnings were
now required because Reyes was no longer free to leave.
Reyes, 2010 WL 3026227, at *6. The clear implication is that
Detective Brandt did not believe that the warnings were
required earlier because he believed the earlier interview was
non-custodial.




  9
    See also Mathiason, 429 U.S. at 495 (“He came voluntarily to the
police station . . . .”); Crawford, 372 F.3d at 1059 (emphasizing that the
defendant “agreed to accompany” the officers).
32                     REYES V. LEWIS

    It is true that some circumstances were indicative of
custody and thus lend some support to the view that the
officers knew that the pre-warning interview had turned
custodial. In its analysis, the panel oddly does not mention
the strongest of such evidence, that Reyes intermittently
stated that he did not want to answer particular questions.
Reyes, however, never sought to terminate the interview and
leave.     Especially given that Reyes had previously
acknowledged many times that he could terminate the
interview and leave, and had left two previous interviews free
after intermittently declining to answer questions, the fact that
the officers continued questioning him is not dispositive of a
deliberate Miranda violation. Moreover, as the state appellate
court emphasized, Officer “Heard ultimately terminated the
postpolygraph questioning upon defendant’s request.” Id. at
*8. Reyes then asked to speak with the detectives, not to
leave. Indeed, the transcripts suggest that Reyes remained
because he was fishing for a deal.

    Similarly, I cannot conclude on AEDPA or clear error
review that the officers employed a two-part interrogation in
deliberate violation of Miranda simply because the officers
questioned Reyes’s veracity, confronted him with evidence of
his guilt, and suggested leniency. See, e.g., Mathiason,
429 U.S. at 493 (officers told the suspect that his fingerprints
had been found at the scene and that “his truthfulness would
possibly be considered by the district attorney or judge”);
Stansbury v. California, 511 U.S. 318, 325 (1994) (telling a
person he is a “prime suspect” does not necessarily mean he
is under arrest because “some suspects are free to come and
go until the police decide to make an arrest”).

   Again, this is not to say that the pre-warning interview
could not reasonably be viewed as custodial; that 20–20
                        REYES V. LEWIS                         33

hindsight legal conclusion made by judges is not at issue.
What is at issue is whether officers engrossed in the moment
knew that the interview had become custodial but deliberately
pressed on to undermine the effect of subsequent Miranda
warnings. It bears repeating that Miranda warnings need be
given only once a suspect is in custody. There is nothing
wrong with officers seeking to question a suspect in a non-
custodial situation. Rather, this may be viewed as good
police work. So long as the officers believed that the
interview remained non-custodial, where they turned out to
be mistaken, a subsequent, warned confession must be
allowed into evidence if voluntarily given. Here, a
reasonable jurist could conclude, as did the state appellate
court and the district court, that the detectives did “not realize
that [Reyes was] in custody and warnings [were] required.”
See Seibert, 542 U.S. at 620 (Kennedy, J., concurring in the
judgment).

    Because any Miranda violation by the detectives was not
deliberate, the operative question under de novo review, as
the state courts, the district court, the prosecution, and Reyes
correctly recognized, is whether Reyes’s post-warning
confession is admissible under Elstad. Under Elstad, “[t]he
relevant inquiry is whether, in fact, the second statement was
also voluntarily made.” Elstad, 470 U.S. at 318. The state
appellate court and the district court explained in detail why
both the pre-warning and post-warning confessions were
voluntary, and thus the post-warning confession was
admissible. Reyes, 2010 WL 3026227, at *8–14. I will not
repeat those courts’ exhaustive analyses here. I note only that
the state appellate court’s conclusion that Reyes’s confessions
were voluntary must be given even “more leeway” on
AEDPA review given the inquiry’s open-ended nature. See
Alvarado, 541 U.S. at 664; Harrington, 562 U.S. at 102
34                         REYES V. LEWIS

(“[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.”). The panel
majority has not conducted this inquiry, which should have
been the focus of its analysis from the start given the absence
of bad faith by the detectives.10

                                   III.

    The panel’s decision conflicts with AEDPA, Supreme
Court precedent, other circuits’ precedent, our recent en banc
decisions, and Seibert itself. Moreover, the panel is wrong in
finding that Detective Brandt, Detective Wheeler, and Officer
Heard violated Miranda in bad faith. Our failure to go en
banc has consequences. Courts in our circuit will be
permitted to read the worst into state court decisions and
required to presume the worst of police officers in assessing

  10
     The panel suggests that Reyes might not have been the triggerman,
noting that two witnesses testified that the driver was the shooter. This
suggestion not only epitomizes the type of second-guessing by our court
that AEDPA is designed to limit, but also inaccurately characterizes the
record. One of these two witnesses stated that the initial shots that hit
Ochoa came from inside the car and then the driver stepped around the car
and fired additional shots. Another witness testified that he heard
gunshots and then saw a passenger get out of the back of the car and
approach Ochoa. All of this, of course, went to the jury, but the panel
apparently thinks itself capable of finding facts based on an incomplete,
cold record. The panel’s suggestion that Reyes was an innocent passenger
who took the fall for his older cousin is further undercut by the fact that
Reyes voluntarily confessed after acknowledging several times that he
would do “25 years to life” for shooting Ochoa. Moreover, Reyes’s guilt
is beyond reasonable dispute. The evidence presented at trial shows
overwhelmingly that Reyes and his cousin set out in Reyes’s aunt’s car to
exact revenge on a rival neighborhood in retaliation for an assault on
Reyes the previous day. They came across Ochoa and killed him in a
drive-by as he waited outside of his house for his parents to take him to
school.
                       REYES V. LEWIS                       35

whether a confession was constitutionally obtained.
Reasonable police work will be disrupted. The decision
effectively forces officers to tell wrongdoers that their pre-
warning admissions may not be used against them, even
where the officers do not believe that the pre-warning
interview had become custodial. The State will be required
to retry a confessed murderer to secure justice. Its ability to
succeed is uncertain given the decade that has passed since
Ochoa’s murder.

    For these reasons, I dissent from our failure to take this
case en banc.



BEA, Circuit Judge, with whom O’SCANNLAIN, Circuit
Judge, joins as to paragraphs 1 and 4, dissenting from the
denial of rehearing en banc:

    1. I join Judge Callahan’s dissent from the denial of
rehearing en banc.

    2. I write separately to reiterate my view that United
States v. Davis, __ F.3d __, 2016 WL 3245043 (9th Cir. June
13, 2016) (en banc), was wrongly decided. As I explained in
my Davis dissent, id. at *15–*18 (Bea, J., dissenting), Marks
v. United States, 430 U.S. 188 (1977), requires that we apply
a “results-based” approach, not a “reasoning-based”
approach, when interpreting splintered Supreme Court
decisions.

   3. Had my view commanded a majority of the Davis en
banc Court, I would likely agree with the panel that Justice
Kennedy’s concurring opinion in Missouri v. Seibert,
36                    REYES V. LEWIS

542 U.S. 600 (2004), provides a controlling rule. In my Davis
dissent, I cited with approval United States v. Williams,
435 F.3d 1148, 1157–58 (9th Cir. 2006), which applied a
results-based approach and concluded that “both the [Seibert]
plurality and Justice Kennedy agree that where law
enforcement officers deliberately employ a two-step
interrogation to obtain a confession and where separations of
time and circumstance and additional curative warnings are
absent or fail to apprise a reasonable person in the suspect’s
shoes of his rights, the trial court should suppress the
confession.” However, I agree with Judge Callahan that,
under the reasoning-based approach adopted in Davis,
Williams should be revisited. See Callahan Dissent at 18–22;
see also United States v. Rodriguez–Preciado, 399 F.3d 1118,
1138–43 (9th Cir. 2005) (Berzon, J., dissenting).

    4. I also wish to underline two AEDPA-related points
made by Judge Callahan in her dissent. First, our conclusion
that Justice Kennedy’s concurring opinion in Seibert provides
a controlling rule—right or wrong—is not “clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). Even if we are
bound by Justice Kennedy’s concurring opinion in cases on
direct review, there is a “possibility for fairminded
disagreement” regarding the controlling effect of that
opinion, such that it may not control in cases, such as this
one, in which AEDPA applies. Harrington v. Richter,
562 U.S. 86, 103 (2011); see Callahan Dissent at 19–22
(noting that other federal courts of appeals have found that
Justice Kennedy’s concurring opinion in Seibert does not
provide a controlling rule). Second, we must give state courts
“the benefit of the doubt” and attempt to reconcile the
California Court of Appeal’s decision with Seibert. Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). As Judge
                       REYES V. LEWIS                       37

Callahan discusses, we can do so by reading the state-court
decision to “acknowledge expressly that the detectives did not
deliberately violate Miranda.” Callahan Dissent at 23. Of
course, whether the detectives acted with deliberation is
quintessentially a factual issue. As Judge Callahan explains,
a finding by the California Court of Appeal that the detectives
did not deliberately violate Miranda was not “an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2); see Callahan Dissent at 29–34.

    5. For these reasons, I join Judge Callahan’s dissent with
the caveat that I continue to believe Davis was wrongly
decided.



                         OPINION

W. FLETCHER, Circuit Judge:

    Petitioner Adrian Reyes petitions for a writ of habeas
corpus on the ground, inter alia, that his state-court
conviction rested on a confession obtained in violation of
Missouri v. Seibert, 542 U.S. 600 (2004). For the reasons that
follow, we reverse the district court and remand with
instructions to grant the writ.

                   I. Factual Background

   On January 11, 2006, an armed person exited a silver
Toyota Camry and shot Derek Ochoa three times. The person
may have yelled “Delhi” (the name of an Orange County
38                    REYES V. LEWIS

gang). Ochoa died as a result of the shooting. He was a
senior at La Sierra High School in Riverside County.

    Riverside Police Department officers traced the Camry to
the home of Andres Munoz, an older cousin of petitioner
Adrian Reyes. The car was registered to another member of
the Munoz family, Albert. Reyes had recently moved to
Riverside County from Orange County. He was a freshman
at La Sierra. He was not quite two months past his fifteenth
birthday.

    The day before the shooting, Reyes had been walking
home from school with a friend. A carload of gang members
drove up and asked Reyes where he was from. Reyes
answered “Delhi.” One of the gang members punched Reyes
in the eye. They then drove away, yelling “South Side
Riverside 51-50.”

    Two days after the shooting, Riverside Police Department
homicide detectives James Brandt and Rick Wheeler
questioned Reyes at his aunt’s home. Reyes had moved from
his family’s home to his aunt’s home the day after his assault
by the gang members. The detectives’ questions related
primarily to the assault. During the questioning, Reyes
acknowledged that he had known Ochoa and that he knew
Delhi was a “group in Santa Ana.”

     Nearly a month later, on February 9, sometime between
5:20 and 5:30 in the morning, a SWAT team of between
fifteen and twenty officers executed a search warrant on
Reyes’s aunt’s home. They handcuffed Reyes and searched
the house. In Reyes’s bedroom they discovered papers with
“Delhi” written in large block letters. After the house was
                       REYES V. LEWIS                         39

secured, Reyes was released from handcuffs and allowed to
eat breakfast.

   Brandt told Reyes that he was not under arrest, but that he
wanted to ask him some questions at the station. Reyes
acquiesced, and he was driven to the Riverside police station.
Reyes was not accompanied to the station by any family
member. At the station, Brandt and Wheeler together
questioned Reyes. At no point during their questioning on
February 9 did they provide Miranda warnings.

    Reyes was held at the station for some time before he was
questioned. Wheeler began the interview by saying, “Thanks
for being so dang patient man I appreciate you . . . [h]anging
out for us ’cause it’s been a long day, long day.” Wheeler
told Reyes that he could stop the interview at any time: “I just
wanna make sure that you understand that if we get at some
point in the interview that you’re done talkin’ . . . and you
don’t feel like answering any more questions or whatever, let
me know, okay?”

    Wheeler asked briefly about the assault the day before the
shooting. He then asked about the shooting. He said that the
search warrants had been executed and that they had talked
“with all these different people.” “[W]e got pictures, too, . . .
and I’ve had more than one person say that’s the car that the
guy was in, okay? . . . I’ve got enough information that shows
that you were there.” (Wheeler’s statement was false. The
only witness who had made any type of identification had not
identified Reyes.) According to the transcript, Wheeler was
interrupted by the “sound of sniffing.” Wheeler continued,
“[T]here’s no denying it. . . . [T]he truth is gonna come out
and, and I already know what it is.” Reyes denied that he was
there. “I didn’t go out that day you could ask my Mom, you
40                     REYES V. LEWIS

would ask anybody in my home I didn’t come out that day, I
was sleeping.” When Wheeler said that the police had
spoken to his family already, Reyes said, “Don’t you guys
have a lie detector or something? I, I was in my house.”

    Brandt then took over the questioning. He challenged
Reyes, saying that he had his phone records. “When your
phone is being used basically six, seven, eight times an hour
every, you know, on an average every five minutes so you’re
not sleeping okay?” Brandt was interrupted by the “sound of
sniffing.” Brandt suggested a mitigating version of events:
“There is a big difference between being in the car when this
thing happens . . . and being the shooter and stuff. . . . So
just tell us what happened, okay?” “We’ve done our
homework, dude and . . . don’t screw yourself and lie to us,
seriously, tell us what happened.”

    Wheeler and Brandt pressed Reyes on the inconsistency
between Reyes’s statements and his phone records. Wheeler
asked him about the papers found in his room with “Delhi
written in big letters.” Brandt said, “We work homicide,
alright, we gonna do our homework, definitely, I’m telling
you, we have the car, we have the gun, we have five guns
total. . . .” (Brandt’s statement was false. The Sheriff’s
Department had not recovered—indeed, never did
recover—the gun used to shoot Ochoa.)

    Wheeler and Brandt continued to press Reyes. Brandt
said, “[T]here’s another detective was out showing witnesses
the picture . . . ’cause we had a picture of you.” Wheeler
immediately followed, “And we identified you as being in the
car.” (Wheeler’s statement was false. Reyes had not been
identified by anyone as having been in the car.) Brandt said,
“I’m not trying to trick you and . . . I’m not making the stuff
                       REYES V. LEWIS                       41

up that I’m telling you . . . . [S]o you know I’m not trying to
trick you.”

    Brandt talked about Ochoa’s family and their “right to
understand what happened.” Reyes responded, “I don’t really
want to say nothing no more . . . trying to cooperate here.”
(Elision in original.)    Brandt replied, “You’re not
cooperating.” Brandt was interrupted multiple times by the
“sound of sniffing.” A moment later, Brandt said, “Tell me
what happened.” Reyes responded, “I don’t know nothing
man.”

    Reyes said, “Stop asking me questions.” Brandt said, “No
I’m not gonna stop asking you questions.” Brandt was again
interrupted by the “sound of sniffing.”

   Brandt said, “[A]re you willing to take a polygraph
examination?” Reyes responded, “Yeah.” Brandt elaborated,
“About everything.” Reyes responded, “I guess, man, I don’t
know nothing man.” Reyes mentioned that he might need to
have his parents there, but Brandt interrupted him, saying,
“[W]e’ll certainly arrange for all that stuff just seeing that
you’re willing to . . . do it.”

     A moment later, Reyes said, “You guys stop asking me
. . . kinda questions.” (Elision in original.) “Stop[] asking
this kind of stuff man.” Wheeler, who had begun the
interview by telling Reyes that he could stop at any time, did
not stop. He responded to Reyes, “The only rope that you got
is me throwing it to you right now and telling you ‘you gotta
be clean’ because you haven’t been. This thing’s gonna burn
you down.”
42                     REYES V. LEWIS

    Wheeler persisted, interrupted frequently by the “sound
of sniffing.” Reyes continued to indicate that he did not want
to talk. “I’ve got nothing to say man.” Brandt took over the
questioning: “Okay, so witnesses identifying you and other
people in the car identifying you, . . . you’re good with that?
. . . You want us to go in there with this two-hour
conversation of you just lying about where you were when
your phone records show it’s not the case and all that stuff,
you’re comfortable with that.” Reyes replied, “Stop asking
me man. I don’t know nothing.”

   Brandt terminated the interview, saying, “This time when
I walk out I’m not gonna come back and give you another
shot, okay? We’re gonna, we’ll, we’ll go to the D.A.’s office
and, and then later on to court with the case we have and, and
I’m, I’m not worried about it, I’m not gonna lose.” Wheeler
added, “Oh ya, we’re not gonna lose that case.” Brandt said,
“Last chance.” Reyes responded, “I don’t know nothing
man.”

    The transcript of the February 9 interview does not
indicate start and stop times, but it is apparent from Brandt’s
statement referring to “this two-hour conversation,” quoted
above, that the interview took about two hours. Brandt
testified at Reyes’s preliminary hearing that the interview had
taken “forty minutes to an hour,” but his testimony is
inconsistent with what he himself said during the interview
and with the length of the transcript. The interview was
interrupted thirty-three times by the “sound of sniffing.”

    Reyes went to his mother’s house to sleep that night. The
next morning, Brandt and Michael Medici, another Riverside
Police Department detective, picked up Reyes and took him
to the San Bernardino County sheriff ’s station for a
                       REYES V. LEWIS                         43

polygraph test. There is no written consent by an adult to the
polygraph test. Brandt testified at the preliminary hearing
that Reyes’s mother gave permission “on the phone,” and the
record contains a police report stating that she had given
permission. No family member accompanied Reyes to the
sheriff’s station.

    Robert Heard of the San Bernardino County Sheriff’s
Department administered the polygraph test.           Before
administering the test, Heard spoke with Reyes for a
sustained period. He impressed on Reyes the fact that he was
an experienced test administrator. He recounted that he had
gone to “polygraph school” “9 years before you were born,”
and that he was in high demand as a polygraph teacher. At no
point did Heard provide Miranda warnings.

    Reyes had difficulty filling out a form Heard gave him,
not knowing his zip code or his height and weight. Reyes had
even more difficulty with the written consent form. When he
did not understand the terms “duress and coercion” and
“immunity,” Heard explained them in simpler language.
Reyes had particular trouble understanding what was meant
by the sentence, “I hereby release the County of San
Bernardino, the Sheriff’s Department and Examiner
administering this examination from any and all claims
resulting from, or arising out of, this examination. . . .” After
Heard explained what “release . . . from any and all claims”
meant, Reyes said, “Alright, so that, that means like that you
guys won’t, won’t trick me . . . .” Heard corrected him,
saying, “Well, no, this doesn’t say I won’t trick you.” Heard
then added, “[Y]ou have my word I won’t trick you.” Heard
again explained what “release” meant, and said, “That’s what
it means.” Reyes responded, “Like you haven’t tricked me or
44                    REYES V. LEWIS

something.” Heard replied, “Exactly, exactly.”           Thus
informed, Reyes signed the consent form.

    After administering the test, Heard told Reyes, “You
failed the test. I have no doubt that you were there when
Derek was shot.” (There is nothing in the record to indicate
whether Reyes had in fact failed the test.) Heard pressed
Reyes to give details about what he had done. Reyes asked,
“[L]ike what’s the truth gonna help?” Heard answered:

       [T]hey read my report and the detectives, their
       supervisor reads the report. . . . And the
       District Attorney’s gonna ask these detectives
       hey, how was Adrian? Is he one of these, you
       know tough, gang banger type guys[]? No,
       no. Adrian’s a nice young man. He
       cooperated, failed the test, and without
       hesitation he says hey, look, man, I feel bad
       about what happened. . . . Adrian, I can’t tell
       you what’s gonna happen because you know
       what? I don’t know. I don’t[] know what’s
       gonna happen because you haven’t told me
       what happened out there. . . . [Y]ou tell me
       I’m going to state prison for, I, I, said 25 to
       life or something like that. Fifteen year olds
       don’t go to state prison, Adrian.

Reyes responded, “I know, but I’ve got a go to Juvenile
Hall.” Heard replied, “Well, I don’t know what’s gonna
happen because I, you haven’t told me anything yet, Adrian.”

   Heard continued to ask Reyes what happened, and Reyes
repeated several times that he did not know. Heard asked
from what side of the car the shooter had shot. Reyes
                       REYES V. LEWIS                        45

responded, “Oh, not that I know, you know, so don’t ask any
question.” Heard asked, “You wanna be alone?” Reyes
replied, “No, it’s just, just don’t ask any questions,” and then
said, “Can we just call the detectives?”

    Brandt and Medici then came into the room and took over
from Heard. At no point in the interview that followed did
they provide Miranda warnings.

   Brandt asked at the outset, “[W]hat’s your biggest
concern, going to jail?”

       Reyes: Think so.

       Brandt: At all or for a long time?

       Reyes: For a long time.

       Brandt: Okay, how long do you think you
       would go to jail for?

       Reyes: I don’t know. Like it’s a murder,
       probably like 25 years.

       Brandt: Yeah? How old are you?

       Reyes: 15.

       Brandt: How many 15 year olds do you know
       that go to jail for 25 years?

       Reyes: None.

       Brandt: Huh?
46                     REYES V. LEWIS

        Reyes: None.

        Brandt: Okay, so why would you be any
        different?

        Reyes: I don’t know.

    Brandt then asked, “Remember yesterday I asked you . . .
if Derek had anything in his hands or reached for his pockets,
anything like that? You remember me asking you that?”
Reyes replied, “No.” Brandt then told Reyes that Ochoa had
had a gun:

        There’s a reason, a very easy explanation to
        this whole thing. . . . The deal is . . . Derek
        had a gun in his pocket. . . . Now, if he’s
        going for a gun in his pocket or you believed
        he was going for a gun in his pocket and we
        find one, that’s obviously, and it’s, there’s an
        explanation as to what happened. Maybe you
        just stopped and talked to him because you
        knew him, and then he’s going for a gun or
        something like that . . . and shit happens.

(Third elision in original.) (Brandt’s statement was false.
Ochoa had not had a gun.)

    Brandt went on, “If it’s just . . . a cold blooded thing, no,
we just, went up and . . . did it and, and shot him just because,
um, and I don’t feel bad about it . . . that looks bad.” Reyes
said, “It wasn’t like that.” Brandt said, “Tell me, tell me why,
how did it happen then?” Reyes hesitated. “I’m scared,
man. . . . Make everybody go to prison and everything, like I
want everybody to get locked up.” Brandt responded, “[I]f
                       REYES V. LEWIS                        47

he’s going for a gun, dude, . . . that’s gotta be explained. We
have to know that and we have to be able to tell the District
Attorney’s office that . . . .” Reyes still hesitated. After
encouragement from Brandt, he finally said, “Um hmm,
hmm, well, he, you, he always had a gun.”

    After more encouragement, Reyes said, “He was just
running up to the car.” Brandt asked, “Okay, was he reaching
for his pockets or anything like that?” Reyes replied, “Yeah.”
Brandt said, “Okay, and what happened?” Reyes replied, “I
don’t know.” Reyes expressed concern about his older
cousin, Andres Munoz, and sought to exculpate him. “Well,
if I say something like what’s going to happen with my
cousin? Is he still gonna go to jail? . . . He had nothing to do
with it.”

   Brandt asked, “Did you shoot him because you thought he
was going for a gun? Yeah? Did you . . . see the gun in his
pocket?”

       Reyes: He was reaching for it.

       Brandt: Okay . . . and then what happened?

       Reyes: He had a grip on it.

       Brandt: Okay, do you remember . . . what
       pocket it was in, what side it was in? Okay,
       do you remember seeing the grip of the gun
       though? And he was reaching for it? But
       what was he yelling at you guys?
48                     REYES V. LEWIS

        Reyes: I don’t know. It was just, I wasn’t
        panicked . . . ain’t gonna say nothing, just
        scared.

        Brandt: You were scared cause he was going
        for the gun? And then, and what happened?

        Reyes: I don’t know. I just shot.

    Reyes’s statement that he had shot Ochoa came early in
the interview, on the seventh page of the transcript. Brandt
and Medici continued to question and talk to Reyes for
another thirty-five pages. Much of the later exchange was
friendly, even including a discussion of Christmas. Reyes
said that his family opens presents at “twelve in the night.”
Brandt responded, “Oh, see I can’t stay up that late,” and
Reyes laughed. Near the end of the interview, Medici asked,
“Does your Mom know about any of this, your Dad?” Reyes
responded, “It’ll be cool like if you guys don’t tell my Mom,
you know, cause . . . [l]ike it’ll break her heart and shit, you
know, cause like she’s very religious.” Brandt told Reyes,
“Oh, we don’t need to run over there.”

    Immediately after the February 10 interview at the San
Bernardino sheriff’s station, Brandt drove Reyes back to the
Riverside police station where he and Wheeler had
interviewed him the day before. The length of the drive is not
in the record, but it is apparent from a map of the area that it
was no more than fifteen miles. When they arrived at the
Riverside police station, Reyes was put in an interview room.

   Brandt and Medici together questioned Reyes. Brandt
began the interview:
                     REYES V. LEWIS                      49

       OK. Uuh, we talked to people at the D.A.’s
       office and stuff about the case. Kinda told
       them that, you know, you came clean and
       finally told us the truth and why things
       happened and, you know that you were, you
       know, obviously scared and all that kind of
       stuff. Uuh, there’s more questions that they
       want answered, if we can. OK, just to, to
       clarify stuff. Alright, so I wanna talk to you
       again, but because you’ve been sitting in that
       room and the door was locked and you’re not
       free to leave, I wanna read you your rights,
       OK? And then ask you some questions. OK?
       You have the right to remain silent. Anything
       you say can and will be used against you in a
       court of law. You have the right to talk to a
       lawyer and have him present with you while
       you’re being questioned. If you cannot afford
       to hire a lawyer, one will be appointed to
       represent you before any questioning. Do you
       understand each of these rights that I’ve
       explained to you? Yeah? OK. Can we talk
       about the stuff we talked about earlier today?
       Is that a yes?

Reyes, who had not previously spoken, answered, “Yeah.”

    Under questioning from Brandt, Reyes repeated his
confession. At the end of the interview, Reyes said, “Let me
call my mom.” Medici then handcuffed Reyes before taking
him to McDonald’s to get something to eat.

   The total elapsed time, from when Brandt picked up
Reyes at his mother’s house on February 10 until the
50                     REYES V. LEWIS

conclusion of the interview at the Riverside police station on
the same day, was somewhere between five and six hours.
Brandt testified at Reyes’s preliminary hearing that he picked
up Reyes at approximately 9:00 am to drive him to the San
Bernardino sheriff’s station. He estimated that Reyes then
spent about three hours at that station, including both his
polygraph test with Heard and his post-polygraph interview
with Brandt and Medici. During the suppression hearing, the
state represented that Reyes spent four hours at the San
Bernardino sheriff’s station. Brandt then drove Reyes to the
Riverside police station for the second interview with Brandt
and Medici. Brandt estimated that the second interview took
between forty minutes and an hour. There is nothing in the
record to indicate that Reyes had anything to eat until Medici
took him to McDonald’s for a late lunch at the conclusion of
the interview at the Riverside police station.

                II. Prior Judicial Proceedings

    Reyes and his cousin Andres Munoz were charged in
California Superior Court with first-degree murder. They
were tried before the same judge with separate juries. Reyes
moved to suppress his confession as having been obtained in
violation of Miranda. The judge concluded that Reyes’s
February 10 post-polygraph confession at the San Bernardino
sheriff’s station was voluntary but that he had been in custody
within the meaning of Miranda when he made the statement.
The judge therefore suppressed the unwarned post-polygraph
statement at the sheriff’s station due to a Miranda violation.
However, the judge refused to suppress Reyes’s postwarning
confession at the Riverside police station.

    At trial, there was inconsistent evidence about the identity
of the shooter. Except for Reyes’s postwarning confession,
                       REYES V. LEWIS                        51

the evidence largely pointed to Reyes’s cousin, Munoz, who
had been the driver of the car, rather than Reyes, who had
been a passenger.

    A friend of both Ochoa and Reyes testified that Reyes had
been in the back seat, on the passenger side, of a silver car on
the afternoon of the shooting. An eyewitness to the shooting
testified that she saw the driver of a silver Camry get out of
the car and shoot Ochoa. She made an in-court identification
of the driver as Munoz. Another eyewitness agreed with this
account. She testified that the driver got out of the car,
walked toward Ochoa, shot Ochoa, and “continue[d] shooting
until he couldn’t anymore.” She testified that the back door
on the driver’s side was opened, but that no one got out of the
back seat. She was unable to identify the shooter, either
when shown photographs shortly after the shooting, or in the
courtroom.

     Another witness testified that he heard gunshots as he was
pulling out of his father’s driveway. He pulled back into the
driveway and got out of the car to look. He testified that he
saw someone get out of the back seat on the passenger side
and come around to the driver’s side. “I don’t know if he
actually went to check on the kid [who had been shot] or . . .
what else happened. . . . [I]t just happened so quick.” He
estimated that the time between the shots being fired and the
person getting out of the back passenger seat “wasn’t
long”—“[m]aybe a couple of seconds.” Yet another witness,
a friend of Ochoa’s, testified that he was on the front porch of
a friend’s house when he heard shots. His view was obscured
by cacti, so he “started walking toward the front yard.” “We
were going towards [Ochoa], and that’s when we saw the guy
shooting at him. But I only saw when he just went inside the
car, like turned around inside the car and yelled out ‘Delhi.’”
52                     REYES V. LEWIS

He testified that there were five people in the car and that it
was “light brown.” He testified that he saw only one person
get into the car, and that this person got into the back seat on
the driver’s side.

    The jury returned a verdict finding Reyes guilty of first-
degree murder with gang and firearm enhancements. The
judge sentenced Reyes to fifty years to life in prison: twenty-
five years to life for the murder conviction to be served
consecutively with a twenty-five years to life sentence for the
firearm enhancement. The court stayed sentencing on the
two gang enhancements.

    Reyes appealed. Citing Seibert, Reyes claimed, inter alia,
that the trial court had erred in admitting his February 10
confession at the Riverside police station, after he had
received Miranda warnings. The Court of Appeal agreed
with the trial judge’s suppression of Reyes’s unwarned post-
polygraph statement at the San Bernardino sheriff’s office.
The court wrote that it was “not disputed” that Reyes was in
custody at the time he made the statement, and that this
statement was thus obtained in violation of Miranda. The
Court of Appeal nonetheless affirmed Reyes’s conviction,
holding that his subsequent, warned confession at the
Riverside police station was admissible.

    In the view of the Court of Appeal, the “operative
question” was whether Reyes’s post-polygraph unwarned and
custodial statement had been voluntary. The Court of Appeal
wrote:

          The issue on appeal is whether the trial
       court erred in allowing defendant’s
       subsequent statements made at the Riverside
                       REYES V. LEWIS                        53

       police station after defendant was advised of
       his Miranda rights. The operative question is
       thus whether defendant was subjected to
       coercion within the meaning of the Fifth and
       Fourteenth Amendments when he was
       interrogated at the sheriff’s station and, if so,
       whether his statements made thereafter at the
       Riverside police station were the tainted
       product of the earlier statements.

           ...

           We thus will consider whether the trial
       court erred in finding that defendant’s
       statements were voluntary.

(Emphasis added.)

    The Court of Appeal then spent nine pages analyzing in
detail what had taken place during the post-polygraph
unwarned custodial interview at the police station, concluding
that the “trial court had properly ruled defendant’s statements,
both at the sheriff’s station and thereafter at the Riverside
police station, were voluntary beyond a reasonable doubt.”
In the view of the Court of Appeal, because Reyes’s
unwarned statements while in custody at the sheriff’s station
had been voluntary, his later postwarning statements at the
police station were necessarily “likewise volitional.” The
Court of Appeal dismissed Reyes’s argument under Seibert
in a single paragraph, on the ground that his statement at the
Riverside police station had been “volitional”:

           Since defendant’s statements made at the
       sheriff’s station were voluntary, his waiver of
54                    REYES V. LEWIS

       Miranda rights at the Riverside police station
       and statements made thereafter were likewise
       volitional. Unlike in Missouri v. Seibert[,
       542 U.S. 600, 617 (2004)], the circumstances
       in the instant case need not “be seen as
       challenging the comprehensibility and
       efficacy of the Miranda warnings to the point
       that a reasonable person in the suspect’s shoes
       would not have understood them to convey a
       message that [he] retained a choice about
       continuing to talk.”

(Second alteration in original.)

    Reyes filed a state habeas petition contemporaneously
with his direct appeal. The Court of Appeal declined to
consolidate the petition and the appeal, summarily denying
the petition in a one-sentence order. The California Supreme
Court summarily denied both Reyes’s direct appeal and his
habeas petition.

    Reyes timely filed a petition for federal habeas corpus
under 28 U.S.C. § 2254. In his Report and Recommendation,
the magistrate judge devoted most of his analysis to whether
Reyes’s postwarning Riverside police station confession was
coerced. He concluded under the deferential standard of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)
that the Court of Appeal had not been unreasonable in
concluding that the confession was not coerced. He
dismissed Reyes’s Seibert argument in a footnote, concluding
that there was no evidence that the law enforcement officers
deliberately employed the two-step method of interrogation
condemned in that case. The district court adopted without
                       REYES V. LEWIS                       55

comment or correction the conclusions and recommendations
of the magistrate judge.

    Reyes timely appealed. Prior to oral argument, we asked
the parties to provide supplemental briefs on Seibert and its
application to the facts of this case.

                  III. Standard of Review

   We review de novo the district court’s decision to deny
Reyes’s habeas petition. Martinez-Villareal v. Lewis, 80 F.3d
1301, 1305 (9th Cir. 1996).

    Under AEDPA, we may not grant an application for a writ
of habeas corpus for a state prisoner 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). “[C]learly established Federal
law” includes only governing legal principles established by
the United States Supreme Court at the time the state decision
was rendered. Greene v. Fisher, 132 S. Ct. 38, 44 (2011).

    A state court’s decision is “contrary to” clearly
established federal law if it applies a rule that contradicts
governing Supreme Court precedent or it decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405–07, 413 (2000). A state court decision is an
“unreasonable application” of clearly established federal law
56                     REYES V. LEWIS

“if the state court identifies the correct governing legal rule
. . . but unreasonably applies it to the facts of the particular
state prisoner’s case.” White v. Woodall, 134 S. Ct. 1697,
1705 (2014) (quoting Williams, 529 U.S. at 407–08).

     “A state-court decision will certainly be contrary to . . .
clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases.” Williams, 529 U.S. at 405; see also Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam) (“Avoiding [a
‘contrary to’ error] does not require citation of [Supreme
Court] cases—indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them.”);
Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) (en banc)
(“[M]istakes in reasoning or in predicate decisions of the type
in question here—use of the wrong legal rule or
framework—do constitute error under the ‘contrary to’ prong
of § 2254(d)(1).”). If a state court’s decision is “contrary to
clearly established Federal law, as determined by the
Supreme Court,” § 2254(d)(1), a federal habeas court does
not owe deference under AEDPA to that decision. Frantz,
533 F.3d at 739; cf. Panetti v. Quarterman, 551 U.S. 930, 948
(2007) (stating this rule for “unreasonable application” error).
If a “contrary to” error is identified, then “we must decide the
habeas petition by considering de novo the constitutional
issues raised.” Frantz, 533 F.3d at 735.

    We may also grant a writ of habeas corpus in cases where
the state-court decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We
“may not second-guess a state court’s fact-finding process
unless, after review of the state-court record, [we]
                      REYES V. LEWIS                       57

determine[] that the state court was not merely wrong, but
actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004). To grant relief under this prong, “we must be
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Id. at 1000.

    The relevant state court decision for purposes of AEDPA
review is the last reasoned state court decision. Ylst v.
Nunnemaker, 501 U.S. 797, 804–06 (1991); Medley v.
Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc). Here,
that decision is the California Court of Appeal’s decision on
direct review of Reyes’s conviction. See Nunnemaker,
501 U.S. at 805–06.

                       IV. Discussion

    Reyes makes two arguments. First, he argues that his
postwarning Riverside police station confession on February
10 was coerced in violation of the Fifth Amendment. Second,
he argues that this confession was admitted in violation of
Seibert. For the reasons that follow, we agree with Reyes’s
second argument. We therefore do not need to reach his first
argument.

                     A. “Contrary To”

   As the Supreme Court explained in Oregon v. Elstad,
470 U.S. 298, 304 (1985), “[p]rior to Miranda, the
admissibility of an accused’s in-custody statements was
judged solely by whether they were ‘voluntary’ within the
meaning of the Due Process Clause.” That is, the pre-
Miranda exclusionary rule analysis was simply a Due Process
Clause voluntariness inquiry. Miranda fundamentally altered
58                    REYES V. LEWIS

the analysis: “The Miranda Court . . . presumed that
interrogation in certain custodial circumstances is inherently
coercive and held that statements made under those
circumstances are inadmissible unless the suspect is
specifically informed of his Miranda rights and freely decides
to forgo those rights.” New York v. Quarles, 467 U.S. 649,
654 (1984) (footnote omitted). The Court was concerned in
Miranda that its “‘traditional totality-of-the-circumstances’
test posed an ‘unacceptably great’ risk that involuntary
custodial confessions would escape detection.” Seibert,
542 U.S. at 608 (quoting Dickerson v. United States, 530 U.S.
428, 444 (2000)). The Court therefore held in Miranda that
finding a statement had been “voluntary” would no longer be
sufficient. The Court explained, “Failure to administer
Miranda warnings creates a presumption of compulsion.
Consequently, unwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must
nevertheless be excluded from evidence under Miranda.”
Elstad, 470 U.S. at 307 (emphasis added). Miranda and later
cases thus clearly establish that the voluntariness of an
unwarned statement during a custodial interrogation is not
sufficient to establish the statement’s admissibility.

    Miranda was decided in 1966. By the time the Court
decided Seibert in 2004, “Miranda warnings” had taken on
near-talismanic significance, almost guaranteeing
admissibility of a warned statement. Justice Souter wrote in
Seibert that “giving the warnings and getting a waiver has
generally produced a virtual ticket of admissibility;
maintaining that a statement is involuntary even though given
after warnings and voluntary waiver of rights requires
unusual stamina, and litigation over voluntariness tends to
end with the finding of a valid waiver.” Seibert, 542 U.S. at
608–09 (Souter, J., plurality opinion). In Elstad, the Court
                       REYES V. LEWIS                       59

had held that an unwarned voluntary custodial confession
followed by a voluntary warned confession did not require
the exclusion of the second, warned confession. But in
Seibert, the Court limited its holding in Elstad. The Court in
Seibert recognized that “[t]he technique of interrogating in
successive, unwarned and warned phases,” was a “new
challenge to Miranda” that Elstad had not resolved. Id. at
609 (Souter, J., plurality opinion); see also id. at 618
(Kennedy, J., concurring in the judgment).

    In Seibert, a police officer in Rolla, Missouri, conducted
an unwarned custodial interrogation of Seibert that was
“systematic, exhaustive, and managed with psychological
skill.” Id. at 616. The unwarned custodial interrogation
produced a confession. The officer then gave Seibert a
twenty-minute coffee and cigarette break. After the break, he
read Seibert her Miranda warnings, and she signed a written
waiver. The officer then resumed questioning, reminding
Seibert of her prior prewarning statements. Id. at 605. The
officer later “testified that he made a ‘conscious decision’ to
withhold Miranda warnings, thus resorting to an interrogation
technique he had been taught: question first, then give the
warnings, and then repeat the question ‘until I get the answer
that she’s already provided once.’” Id. at 605–06. The
Seibert plurality wrote, with some understatement, that the
use of this two-step interrogation technique “[wa]s not
confined to Rolla, Missouri.” Id. at 609. Indeed, as the
plurality noted, its use had been promoted and endorsed by
national police training organizations including the Police
Law Institute. Id. at 609–10.

    Justice Souter observed in his plurality opinion in Seibert
that the purpose of the two-step interrogation technique was
“to render Miranda warnings ineffective by waiting for a
60                     REYES V. LEWIS

particularly opportune time to give them, after the suspect has
already confessed.” Id. at 611. He concluded:

       It would have been reasonable to regard the
       two sessions as parts of a continuum, in which
       it would have been unnatural to refuse to
       repeat at the second stage what had been said
       before. These circumstances must be seen as
       challenging the comprehensibility and
       efficacy of the Miranda warnings to the point
       that a reasonable person in the suspect’s shoes
       would not have understood them to convey a
       message that she retained a choice about
       continuing to talk.

Id. at 616–17. In a footnote appended to this passage, Justice
Souter made clear that if a two-step interrogation technique
violated Miranda, the voluntariness of the postwarning
statement is irrelevant. In that circumstance, even a voluntary
postwarning statement must be suppressed. Justice Souter
wrote, “Because we find that the warnings were inadequate,
there is no need to assess the actual voluntariness of the
statement.” Id. at 617 n.8.

    Concurring, Justice Kennedy agreed with Justice Souter
that, if deliberately employed, a two-part interrogation
technique presented “different considerations” from earlier
Miranda cases. Id. at 620 (Kennedy, J., concurring in the
judgment). While Justice Kennedy’s fifth-vote concurrence
narrowed Seibert’s holding to “those cases involving
deliberate use of the two-step procedure to weaken
Miranda’s protections,” United States v. Williams, 435 F.3d
1148, 1157–58 (9th Cir. 2006) (emphasis added), the plurality
and Justice Kennedy agreed that even a voluntary
                      REYES V. LEWIS                      61

postwarning confession must be excluded where law
enforcement officials deliberately withheld Miranda
warnings until after obtaining an in-custody confession, and
where insufficient curative measures had been taken to ensure
that the suspect understood the meaning and importance of
the previously withheld warnings.

   Justice Kennedy wrote:

           The plurality concludes that whenever a
       two-stage interview occurs, admissibility of
       the postwarning statement should depend on
       “whether [the] Miranda warnings delivered
       midstream could have been effective enough
       to accomplish their object” given the specific
       facts of the case. . . . I would apply a
       narrower test applicable only in the infrequent
       case, such as we have here, in which the two-
       step interrogation technique was used in a
       calculated way to undermine the Miranda
       warning.

           The admissibility of postwarning
       statements should continue to be governed by
       the principles of Elstad unless the deliberate
       two-step strategy was employed. If the
       deliberate two-step strategy has been used,
       postwarning statements that are related to the
       substance of prewarning statements must be
       excluded unless curative measures are taken
       before the postwarning statement is made.
       Curative measures should be designed to
       ensure that a reasonable person in the
       suspect’s situation would understand the
62                     REYES V. LEWIS

        import and effect of the Miranda warning and
        of the Miranda waiver. For example, a
        substantial break in time and circumstances
        between the prewarning statement and the
        Miranda warning may suffice in most
        circumstances, as it allows the accused to
        distinguish the two contexts and appreciate
        that the interrogation has taken a new turn.
        Alternatively, an additional warning that
        explains the likely inadmissibility of the
        prewarning custodial statement may be
        sufficient.

Id. at 621–22 (Kennedy, J., concurring in the judgment)
(internal citations omitted).

    We take as “clearly established” for purposes of § 2254
the “narrowest” opinion in a fractured majority. See Marks
v. United States, 430 U.S. 188, 193 (1977); see also Panetti,
551 U.S. at 949. In United States v. Davis, — F.3d —, 2016
WL 3245043, at *5 (9th Cir. June 13, 2016) (en banc), we
interpreted Marks as requiring us to analyze “whether the
reasoning of a narrower opinion fit[s] entirely into the circle
drawn by a broader opinion.” Stated differently, a fractured
Supreme Court opinion binds us “only . . . when a majority of
the Justices agree upon a single underlying rationale and one
opinion can reasonably be described as a logical subset of the
other.” Id.

    Previously, in Williams, we applied Marks to hold that the
rule established in Seibert is to be found by looking at Justice
Souter’s plurality opinion for four justices, together with
Justice Kennedy’s narrower concurring opinion. 435 F.3d at
1157. In Davis, we cited with approval our earlier opinion in
                        REYES V. LEWIS                         63

Williams. Davis, 2016 WL 3245043, at *5. Justice Souter’s
plurality opinion requires suppression only where officers
employ a two-step technique that renders the Miranda
warnings ineffective. His opinion does not require a
deliberate intent to employ the forbidden two-step technique.
Justice Kennedy largely agreed with the plurality, but wrote
that he would add one criterion before finding a Seibert
violation. Justice Kennedy wrote, “In my view, [the
plurality’s] test cuts too broadly. . . . I would apply a narrower
test[.]” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in
the judgment). In Justice Kennedy’s view, an interrogating
officer not only must employ the two-step technique
condemned by the plurality; he or she must also do so
“deliberately.” Justice Kennedy’s concurrence, based on a
rationale narrowing the result reached by the plurality in
Seibert, thus constitutes “clearly established” law for the
purpose of AEDPA review.

     Under Justice Kennedy’s concurrence, a postwarning
statement must be suppressed if interrogating officers
deliberately use the two-step interrogation technique that was
used in Seibert, and if effective curative measures are not
taken to ensure that the suspect genuinely understood the
Miranda warnings. In the words of Justice Kennedy, quoted
above, “[c]urative measures should be designed to ensure that
a reasonable person in the suspect’s situation would
understand the import and effect of the Miranda warning and
of the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy,
J., concurring in the judgment).

    The California Court of Appeal did not understand
Seibert. In the view of the Court of Appeal, the “operative
question” under Miranda was whether Reyes’s unwarned
post-polygraph custodial statement at the San Bernardino
64                    REYES V. LEWIS

sheriff’s station had been voluntary. According to the Court
of Appeal, if that statement had been voluntary, his later
Mirandized statement at the San Bernardino police station
was necessarily “likewise volitional.” The Court of Appeal
spent nine pages addressing the voluntariness of Reyes’s
unwarned post-polygraph custodial statement at the San
Bernardino sheriff’s station. For the Court of Appeal, the
voluntariness of that statement determined the admissibility
of the subsequent warned statement at the Riverside police
station. The Court of Appeal addressed Seibert in a single
paragraph.

    We quoted that paragraph above, but we reproduce it
here, in its entirety, for the convenience of the reader:

           Since defendant’s statements made at the
       sheriff’s station were voluntary, his waiver of
       Miranda rights at the Riverside police station
       and statements made thereafter were likewise
       volitional. Unlike in Missouri v. Seibert[,
       542 U.S. 600, 617 (2004)], the circumstances
       in the instant case need not “be seen as
       challenging the comprehensibility and
       efficacy of the Miranda warnings to the point
       that a reasonable person in the suspect’s shoes
       would not have understood them to convey a
       message that [he] retained a choice about
       continuing to talk.”

(Alteration in original.) The first sentence of the paragraph
recites the Court of Appeal’s conclusion that Reyes’s
postwarning statement was “volitional.” The second sentence
states that, unlike in Seibert, Reyes “retained a choice about
continuing to talk.” That is, in the Court of Appeal’s view,
                       REYES V. LEWIS                       65

because Reyes “retained a choice,” his “continuing to talk”
was voluntary.

    The clearly established rule under Seibert is that if
officers deliberately employ the two-step technique employed
in Seibert, and if insufficient curative measures are taken to
ensure that later Miranda warnings are genuinely understood,
any warned statement thereby obtained must be suppressed,
even if the statement is voluntary. Contrary to Seibert, the
Court of Appeal did not address the question whether the
officers deliberately employed the two-step technique. Also
contrary to Seibert, the Court of Appeal did not address the
adequacy, or even existence, of any “curative measures.”
Instead, the Court of Appeal analyzed at length the
coerciveness surrounding Reyes’s post-polygraph unwarned
custodial statement at the San Bernardino sheriff’s station and
concluded that because his confession was voluntary his
subsequent warned statement at the Riverside police station
was also voluntary.

    Under the circumstances of this case—where police
interrogated fifteen-year-old Reyes over the course of two
days; where on the first day at the Riverside police station
they conducted a two-hour unwarned interrogation; where on
the second day at the San Bernardino sheriff’s station they
obtained a confession during an unwarned interrogation
following an unwarned custodial polygraph test; and where
they transported Reyes back to the Riverside police station
and obtained a postwarning confession “clarifying” what he
had stated at the sheriff’s station—a Seibert analysis was
clearly required.

   Contrary to Seibert, the Court of Appeal did not conduct
such an analysis. Instead, the Court of Appeal examined only
66                     REYES V. LEWIS

whether Reyes’s statement in his post-polygraph custodial
interrogation was voluntary. It wrote, as a prelude to its
analysis, that the “operative question” was voluntariness:
“We thus will consider whether the trial court erred in finding
that defendant’s statements were voluntary.”              Upon
determining that Reyes’s unwarned statements were
voluntary, the Court of Appeal concluded that Reyes’s later
warned statement at the Riverside police station was
necessarily “likewise volitional.” The Court of Appeal then
affirmed the trial court’s decision not to suppress Reyes’s
postwarning statement. The Court of Appeal thus addressed,
and treated as dispositive, the question whether Reyes’s
postwarning statement was voluntary, which is precisely the
question that is irrelevant under Seibert.

    We therefore conclude that the Court of Appeal’s decision
was “contrary to . . . clearly established Federal law, as
determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1).
Because its decision was “contrary to” Seibert, we owe it no
deference.

    On habeas review, the federal magistrate judge
recommended denying relief, rejecting in a footnote Reyes’s
argument under Seibert. The magistrate judge correctly
understood the rule in Seibert but concluded without analysis
of the evidence that the law enforcement officers in this case
had not deliberately employed the two-step interrogation
process. Deliberateness is a factual finding that we review
for clear error. United States v. Narvaez-Gomez, 489 F.3d
970, 974 (9th Cir. 2007); McClure v. Thompson, 323 F.3d
1233, 1240 (9th Cir. 2003) (applying clear error review to
findings of fact made by a district court on AEDPA review).
Clear error review requires us to form a “definite and firm
conviction that a mistake has been committed.” Easley v.
                       REYES V. LEWIS                         67

Cromartie, 532 U.S. 234, 242 (2001) (internal quotation
marks omitted). A more searching review is appropriate
where the trial court’s decision was based on documents, as
it was here, rather than credibility evaluations. See id. at 243
(“[T]he key evidence consisted primarily of documents and
expert testimony. Credibility determinations played a minor
role. Accordingly, we find that an extensive review of the
District Court’s findings, for clear error, is warranted.”); Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
500–01 (1984) (“The same ‘clearly erroneous’ standard
applies to findings based on documentary evidence as to
those based entirely on oral testimony, but the presumption
has lesser force in the former situation than in the latter.”
(internal citation omitted)).

    We conclude that the magistrate judge, and the district
court in entering judgment based on the recommendation of
the magistrate judge, clearly erred. We wrote in Williams
that evidence of deliberateness in a Seibert inquiry can be
either objective or subjective. “[I]n determining whether the
interrogator deliberately withheld the Miranda warning,
courts should consider whether objective evidence and any
available subjective evidence, such as an officer’s testimony,
support an inference that the two-step interrogation procedure
was used to undermine the Miranda warning.” 435 F.3d at
1158. The absence of direct evidence of subjective intent is
not dispositive. United States v. Capers, 627 F.3d 470, 479
(2d Cir. 2010). As we have recognized, “the most plausible
reason” for delaying Miranda warnings until after a suspect
has confessed “is an illegitimate one, which is the
interrogator’s desire to weaken the warning’s effectiveness,”
see Williams, 435 F.3d at 1159, and “the intent of the officer
will rarely be as candidly admitted as it was [in Seibert].” Id.
68                     REYES V. LEWIS

at 1158 (quoting Seibert, 542 U.S. at 617 n.6 (Souter, J.,
plurality opinion)).

    In Williams, we provided a nonexhaustive list of
probative objective evidence of deliberateness. Such
evidence includes “the timing, setting and completeness of
the prewarning interrogation, the continuity of police
personnel and the overlapping content of the pre- and
postwarning statements.” Id. at 1159; see also United States
v. Barnes, 713 F.3d 1200, 1205 (9th Cir. 2013) (per curiam)
(examining the record for objective evidence under Seibert);
Capers, 627 F.3d at 479 (“[W]e join our sister circuits in
concluding that a court should review the totality of the
objective and subjective evidence surrounding the
interrogations in order to determine deliberateness, with a
recognition that in most instances the inquiry will rely
heavily, if not entirely, upon objective evidence.”); United
States v. Nunez-Sanchez, 478 F.3d 663, 668–69 (5th Cir.
2007) (examining the totality of the circumstances to infer
deliberateness); United States v. Street, 472 F.3d 1298, 1314
(11th Cir. 2006) (holding that the deliberateness
determination requires an evaluation of “the totality of the
circumstances, including ‘the timing, setting and
completeness of the prewarning interrogation, the continuity
of police personnel and the overlapping content of the pre-
and post-warning statements’” (quoting Williams, 435 F.3d
at 1159)); United States v. Briones, 390 F.3d 610, 614 (8th
Cir. 2004).

    Based on the objective evidence in this case, we conclude
that Brandt and his fellow officers deliberately employed the
two-step interrogation technique condemned in Seibert, and
that the magistrate judge and the district court clearly erred in
concluding otherwise. Reyes first confessed in the unwarned
                       REYES V. LEWIS                       69

custodial interrogation conducted by Brandt and Medici at the
San Bernardino sheriff’s station on February 10, after Heard
told Reyes that he had failed the polygraph test. The
California Court of Appeal wrote that it is “not disputed” that
Reyes was in custody during this interrogation. Because the
interrogation was custodial, both the trial judge and
California Court of Appeal concluded that this unwarned
confession at the San Bernardino sheriff’s station was
obtained in violation of Miranda.             This unwarned
interrogation, as well as the unwarned interrogation the
previous day at the Riverside police station, were, like the
interrogation in Seibert, “systematic, exhaustive, and
managed with psychological skill.” Seibert, 542 U.S. at 616.

    In the unwarned custodial interrogation at the San
Bernardino sheriff’s station, Brandt and Medici obtained
statements from Reyes admitting that he shot Ochoa;
providing the outline of the events that occurred that
afternoon; providing information about how Reyes obtained
the gun used in the shooting and what happened to it
afterward; and providing details about the shooting. In the
warned interrogation at the Riverside police station that
followed, Reyes provided essentially the same information.

    The three Riverside police officers involved in the
case—Brandt, Wheeler and Medici—were all experienced
officers. Cf. Capers, 627 F.3d at 481 (“Inexperience, while
not a legitimate excuse for postponing a Miranda warning,
nevertheless may save a confession from exclusion under
Seibert.”). All three were homicide detectives. At the time
of the interrogations, Brandt had been a police officer in
California for twelve years and a homicide detective for the
last four. The tenure of Wheeler and Medici is not specified
70                     REYES V. LEWIS

in the record, but we may infer from their ranks that they both
had substantial experience.

    Brandt did not take “curative measures” to ensure that
Reyes understood “the import and effect of the Miranda
warning and of the Miranda waiver.” Seibert, 542 U.S. at
622 (Kennedy, J., concurring in the judgment). Indeed, he
did quite the opposite. Brandt was the lead investigator. He
was involved in the case from beginning to end. Brandt
asked Reyes to accompany him to the Riverside police station
on the morning of February 9 after the SWAT team had
entered Reyes’s aunt’s house and placed him in handcuffs.
Brandt and Wheeler questioned Reyes at the police station for
about two hours that day. During that interview, Brandt
asked Reyes if he would be willing to take a polygraph
examination. Brandt picked Reyes up at his mother’s house
the next morning and took him to the San Bernardino
sheriff’s station for the examination. After Heard told Reyes
that he had failed the polygraph examination, Brandt and
Medici came into the room and took over from Heard.
During the unwarned custodial interview at the San
Bernardino sheriff’s station on February 10, Brandt and
Medici obtained a detailed confession from Reyes. After
obtaining the confession, Brandt immediately drove Reyes
directly to the Riverside police station, where he and Wheeler
had questioned him the day before. On arrival at the
Riverside station, Brandt and Medici questioned Reyes again.
At the beginning of this interview, Brandt finally provided
Miranda warnings. During this interview, Reyes gave Brandt
and Medici the same detailed confessions he had just given.

    Brandt and Medici had obtained the incriminating
information from Reyes very early in the unwarned custodial
interrogation at the sheriff’s station, on the seventh page of
                      REYES V. LEWIS                       71

the transcript. Yet they continued questioning and talking to
Reyes for another thirty-five pages. They did so in a
nonconfrontational, sympathetic way, with the result that
Reyes was made to feel sufficiently comfortable that he
talked about his family’s Christmas rituals and laughed when
Brandt said he could not stay up late enough to open presents.
At the end of the session, Reyes even asked Brandt and
Medici not to tell his mother what he had confessed to them:
“It’ll be cool like if you guys don’t tell my Mom.”

    At the beginning of the follow-up questioning at the
Riverside police station, Brandt gave Reyes the Miranda
warnings, as recounted above. But, as is evident from the
transcript, he played down their importance. He said he
wanted “just to clarify stuff,” suggesting by his use of the
word “clarify” that the “stuff” had already been conveyed in
the earlier interview, and that the only purpose of the later
interview was clarification. Brandt then said he wanted to
“read you your rights” because “you’ve been sitting in that
room and the door was locked and you’re not free to leave.”
An experienced officer in Brandt’s position would have
known that to a reasonable person not trained in the law, let
alone a fifteen-year-old high school freshman, these stated
reasons were hardly an effective means of conveying the fact
that the warning he was about to give could mean the
difference between serving life in prison and going home that
night.

   After Brandt read the Miranda warnings, he said, “Do
you understand each of these rights that I’ve explained to
you? Yeah? OK. Can we talk about the stuff we talked
about earlier today? Is that a yes?” While giving the
Miranda warnings, Brandt did not pause to ask “Is that a
yes?” after asking if Reyes understood “each of the rights”
72                     REYES V. LEWIS

listed. Only after the Miranda warnings had been completed
and after Brandt asked whether “we [can] talk about the stuff
we talked about earlier today” did Brandt finally ask “Is that
a yes?” and wait for a response. In contrast to the
interrogation in Seibert, Brandt did not ask Reyes for a signed
waiver of rights or a signed acknowledgment of having read
and understood the Miranda warnings.

    The psychological, spatial, and temporal break between
the unwarned and warned interrogations was not enough to
cure the Miranda violation. Perhaps most important, Brandt
had been a continuous presence throughout. He and Wheeler
were the two questioners in the unwarned interrogation on
February 9; he was the primary questioner in both the
unwarned and warned interrogations on February 10; and he
had personally driven Reyes on February 9 and 10, including
the short trip between the sheriff’s station and the police
station on February 10. Further, although the unwarned
custodial interrogation on February 10 took place at the San
Bernardino sheriff’s station and the warned interrogation took
place at the Riverside police station later that day, the warned
interrogation was conducted in a familiar place where Reyes
had been questioned by Brandt the day before. The record
does not tell us the driving distance and time between the
sheriff’s station and the Riverside police station, but a map of
the area indicates that it was no more than fifteen miles. The
timeline for the events on February 10, described above,
indicated that the driving time was not likely to have been
more than about thirty minutes. This case is quite unlike
Bobby v. Dixon, 132 S. Ct. 26, 32 (2011) (per curiam), in
which there was a four-hour gap, during which the defendant
was transported from the police station to a separate jail and
back, and during which the defendant spoke with his lawyer
and learned material facts about the ongoing investigation.
                       REYES V. LEWIS                         73

See also Capers, 627 F.3d at 484 (holding that a ninety-
minute break in time between interrogations was not curative
in part because police personnel were consistent and “both
[interrogations] occurred while Capers remained in handcuffs
and in settings that clearly established the authoritative nature
of the questioning”).

       B. “Unreasonable Determination of the Facts”

    Our concurring colleague reads the Court of Appeal’s
decision as understanding and applying Seibert. In his view,
the Court of Appeal’s quotation from Justice Souter’s
plurality opinion (in the paragraph we quoted above) shows
that it understood Seibert, and that the Court of Appeal
viewed the question before it to be whether Brandt and his
fellow officers took sufficient curative measures to ensure
that the Miranda warnings given at the Riverside police
station were effective. But our colleague nonetheless agrees
with the result we reach in this case. In his view, even under
AEDPA’s deferential standard, we must grant habeas relief
because the Court of Appeal’s conclusion that sufficient
curative measures were taken is an “unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). See
Concurrence at 78–80.

    For the reasons given above, we disagree with our
concurring colleague on the question whether the Court of
Appeal’s decision was “contrary to” Seibert. However, we
note that, although we do not need to reach the question
whether the Court of Appeal’s decision rests on an
“unreasonable determination of the facts,” we entirely agree
with him on that question. It is readily apparent, on the
factual record of this case, that Brandt and the others were
74                     REYES V. LEWIS

experienced officers who acted carefully and deliberately in
performing their two-step interrogation, and further, that they
did not take “curative measures” that would “ensure that a
reasonable person in [Reyes’s] situation would understand the
import and effect of the Miranda warning and of the Miranda
waiver.” 542 U.S. at 622 (Kennedy, J., concurring in the
judgment). Indeed, as described above, far from taking
“curative measures,” they took affirmative steps to ensure
that Reyes did not “understand the import and effect” of the
Miranda warnings he was finally given at the Riverside
police station.

                          Conclusion

    The California Court of Appeal applied a rule that was
contrary to federal law as clearly established by the Supreme
Court in Seibert when it concluded that Reyes’s postwarning
confession was admissible solely on the ground that his
unwarned custodial statement was voluntary, and that his
subsequent warned statement therefore was also necessarily
voluntary. We hold that police officers deliberately
employed a two-step interrogation technique, and that they
did not take appropriate “curative measures,” in violation of
Seibert. We therefore hold that Reyes’s postwarning
confession should have been suppressed. Because the state
did not argue harmless error in this court or the district court,
that defense is waived. See United States v. Vallejo, 237 F.3d
1008, 1026 (9th Cir. 2001). Accordingly, we reverse the
district court’s denial of Reyes’s petition for a writ of habeas
                       REYES V. LEWIS                        75

corpus and remand with instructions to grant the writ unless
Reyes is retried within a reasonable time, not to exceed 180
days.

   REVERSED and REMANDED.



SINGLETON, Senior District Judge, concurring:

    The majority has joined in a thoughtful and thorough
judgment in this case. I concur in that judgment. The
majority has forcefully marshaled the facts and analyzed the
applicable law. If this case had arisen entirely within the
federal system, e.g., under 28 U.S.C. § 2255, I would fully
join in the opinion and have no further comments or
suggestions.

    This case does not arise entirely within the federal system,
however, but comes to us from state court under § 2254, and
thus our review must be guided by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). AEDPA
requires us to give deference to decisions of the state courts
both as to the facts and the law, except in limited
circumstances.

    The majority identifies Missouri v. Seibert, 542 U.S. 600
(2004), as clearly established federal law at the time the
California Court of Appeal decided this case and looks to
Justice Kennedy’s concurring opinion to provide the
appropriate rule of decision. I agree. See United States v.
Williams, 435 F.3d 1148, 1157–59 (9th Cir. 2006) (analyzing
Seibert and concluding that Justice Kennedy’s opinion is the
narrowest holding obtaining five votes). In the majority’s
76                     REYES V. LEWIS

view, the California Court of Appeal recognized Seibert as
controlling but unreasonably interpreted it, effectively
ignoring Seibert and deciding the case under the prior law set
out in Oregon v. Elstad, 470 U.S. 298 (1985). The majority
concludes that, since the California court failed to apply
clearly established law, we may withhold any deference and
exercise our independent judgment in reviewing the
California Court of Appeal’s decision de novo.

    I disagree. My review of the record leads me to conclude
that the California Court of Appeal’s conclusions of law are
in conformity with Seibert and Justice Kennedy’s
concurrence. In my view, the state court’s approach to the
law is sound, but its finding of facts are unreasonable in
context. I therefore, on this alternate ground, join in this
Court’s judgment. My reasons are as follows.

     In reaching a contrary view, the majority focuses
exclusively on one part of Justice Kennedy’s concurrence.
Seibert addresses what we have termed a two-step
interrogation leading to a confession. The first part of the
interrogation is unwarned. Once the suspect confesses,
Miranda warnings are given, and the interrogation resumes.
Typically, the suspect confirms his confession. In practice,
the earlier confession is suppressed, but following Elstad, the
subsequent post-warning statement is allowed into evidence
if it is voluntary. Seibert modified Elstad in cases such as
this. The opinion was fragmented. Justice Souter wrote an
opinion for a plurality of four justices. Justice Kennedy
separately concurred, arguably on a more limited basis, and
Justice O’Connor wrote a dissent in which three other justices
joined. The majority and I agree that Justice Kennedy’s
opinion provides the holding of Seibert. We disagree on how
Seibert should be applied to this case.
                           REYES V. LEWIS                    77

    In my view, Justice Kennedy adopts all of Justice Souter’s
plurality opinion but imposes a limitation.              Rightly
understood, Justice Kennedy’s opinion adopts a two-part test
for determining the validity of a confession where the police
use a two-step approach in their interrogation of a suspect.
The first prong, which I will call the Kennedy prong, asks
whether the two-step procedure was chosen intentionally in
order to render subsequent Miranda warnings ineffective.
The second prong, which I will call the Souter prong, asks if
the two-step process, whether or not intentional, rendered the
subsequent warnings ineffective. For Justice Kennedy, both
prongs must be satisfied in order to create a Siebert violation
and take the case out of Oregon v. Elstad. Since the test has
two prongs, it is analogous to the Strickland test for
determining ineffective assistance of counsel.1 Like that test,
a reviewing court should be able to look to either prong first,
and, if that prong is not satisfied, there is no need to address
the other prong. See Pearson v. Callahan, 555 U.S. 223, 241
(2009). Viewed in this light, the California Court of Appeal’s
decision is within the law. That court quoted Justice Souter
directly for the second prong of the test and concluded that
nothing in the record of the interrogation “challenged the
comprehensibility and efficacy of the Miranda warnings to
the point that a reasonable person in the suspect’s shoes
would not have understood them to convey a message that
[he] retained a choice about continuing to talk.”

   Justice Kennedy’s test requires that any two-step
procedure must be intentionally motivated to undermine
Miranda. Justice Souter rejects reference to the police intent
and focuses only on whether the process itself challenged the
comprehensibility and effectiveness of the Miranda warnings.

 1
     Strickland v. Washington, 466 U.S. 668 (1984).
78                         REYES V. LEWIS

Thus, if as the California Court of Appeal found, Reyes
understood at the time of the second stage of the interview
that he retained a choice about whether to talk, his decision to
talk was consistent with Seibert, and there was no need for
the Court of Appeal to address the first prong of the test and
determine whether the police intended to nullify the Miranda
warnings.

    The Court of Appeal did not separately address the first
prong of the test, and so by analogy to Strickland, we may
review that prong de novo and exercise independent
judgment.2 See Porter v. McCollum, 558 U.S. 30, 39 (2009);
Mann v. Ryan, 774 F.3d 1203, 1215 (9th Cir. 2014)
(“Because the state post-conviction court did not reach the
deficiency prong of the Strickland analysis, our review of this
prong is not circumscribed by AEDPA.”). I agree with the
majority that, under the facts of this case, the use of the two-
step procedure was a conscious effort to undermine Miranda.
See Williams, 435 F.3d at 1158–60 (discussing how a court
should determine whether an interrogation was deliberately
used to undermine Miranda).

    The second prong of the test was addressed by the Court
of Appeal, and we must grant deference and may only reject
the finding if it was “based on an unreasonable determination



  2
    It is clear that the Court of Appeal did not think that the procedure
followed undermined the effectiveness of the mid-stream Miranda
warnings. It is not clear that the Court of Appeal considered whether the
procedure was chosen to undermine Miranda. Even if I were to assume
that the Court of Appeal found no intent, sub silentio, requiring deference
I would still conclude under Williams that the procedure was chosen
intentionally. See Williams, 435 F.3d at 1160 (discussing how to prove a
deliberate choice of procedure).
                       REYES V. LEWIS                       79

of the facts in light of the evidence presented in the state
court proceeding.” 28 U.S.C. § 2254 (d)(2).

    The majority points out that the Court of Appeal did not
explain its factual finding that the mid-stream Miranda
warning was not undermined by the interrogation procedure
chosen by the police. In such a case, we must look to all of
the relevant evidence to determine if the fact finding is
reasonably supported. See Delgado v. Lewis, 223 F.3d 976,
982 (9th Cir. 2000) (“Federal habeas review is not de novo
when the state court does not supply reasoning for its
decision, but an independent review of the record is required
to determine whether the state court clearly erred in its
application of controlling federal law.”). Reyes has a heavy
burden to establish that a state court fact finding is
unreasonable. See Burt v. Titlow, __ U.S. __, 134 S. Ct. 10,
15–16 (2013). I am satisfied that he has sustained that burden
here.

    The majority has summarized all of the relevant evidence,
and it need not be repeated here. Guided by Williams
regarding a determination of the effectiveness of mid-stream
Miranda warnings, see Williams, 435 F.3d at 1160–62, I do
not believe that there is substantial evidence that would
support an inference that the warnings given to Reyes were
effective at the time they were given. There is no evidence of
the corrective measures identified by Justice Kennedy.
Turning to the factors considered relevant by the plurality:
1) the pre-warning interrogation was complete and detailed,
consuming many hours; 2) the two rounds of interrogation
overlapped; 3) the two rounds of interrogation were close in
time; 4) there was a continuity of police personnel; and, most
importantly, 5) the interrogator’s questions treated the second
round of interrogation as continuous with the first.
80                     REYES V. LEWIS

    Viewed in light of the totality of the circumstances, there
is no evidence that would permit a finding that the two-step
interrogation in this case did not undermine Miranda and lead
to an involuntary confession.
