                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 08 2010

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



CHARLES TYREE GREEN,                             No. 95-15901

             Petitioner - Appellant,             D.C. No. CV-93-03672-CW

  v.
                                                 MEMORANDUM *
JAMES H. GOMEZ, Director of
Department of Corrections of the State
of California; THEODORE WHITE,
Warden of New Folsom State Prison,

             Respondents - Appellees.



CHARLES TYREE GREEN,                             No. 08-15949

             Petitioner - Appellant,             D.C. No. 4:93-cv-03672-CW

  v.

MATTHEW C. KRAMER,

             Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                page 2

                      Argued and Submitted January 13, 2010
                            San Francisco, California

Before:      KOZINSKI, Chief Judge, HUG and CLIFTON, Circuit Judges.

      Green’s statements after he was given the Miranda warnings were properly

admitted. Under Oregon v. Elstad, 470 U.S. 298 (1985), “a suspect who has once

responded to unwarned yet uncoercive questioning is not thereby disabled from

waiving his rights and confessing after he has been given the requisite Miranda

warnings.” Id. at 318. Green argues the statements should be suppressed under

Missouri v. Seibert, 542 U.S. 600 (2004). Even assuming he can rely on Seibert in

light of Teague v. Lane, 489 U.S. 288, 310 (1989), there was no deliberate two-

step process here. Green’s waiver of his Miranda rights was also voluntary. See

Moran v. Burbine, 475 U.S. 412, 421 (1986). He was only in the interview room

for approximately six hours before he was advised of his rights, and during most of

that time he was not being interrogated.

      Nor were Green’s admissions coerced. See Colorado v. Connelly, 479 U.S.

157, 167 (1986). Although Green argues that he was psychologically vulnerable to

questioning, “a defendant’s mental condition, by itself and apart from its relation to

official coercion” doesn’t render a statement involuntary. Id. at 164. Green points

to no police behavior amounting to coercion. Moreover, Green’s question “Can I
                                                                                page 3

have time to think for a second” wasn’t an invocation of his right to remain silent.

It’s just like the question “Can we talk about it tomorrow,” which United States v.

Thierman, 678 F.2d 1331, 1335–36 (9th Cir. 1982), held wasn’t an invocation of

the right to be silent.

       Even if the state court erred in determining that Green wasn’t in custody

during his pre-Miranda questioning, he hasn’t shown that admission of his initial

statements had a “substantial and injurious effect” on the verdict. Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted).

Green’s bloody overalls were properly admitted, see United States v. Patane, 542

U.S. 630, 641–42 (2004), as were his two confessions. Green’s first statements are

insignificant compared to this evidence.


       AFFIRMED.
