                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            APR 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK LYNN GLASS,                              No.    15-56235

              Petitioner-Appellant,              D.C. No.
                                                 5:12-cv-01937-FMO-AS
 v.

PEOPLE OF THE STATE OF                           MEMORANDUM*
CALIFORNIA,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                       Argued and Submitted March 10, 2017
                               Pasadena, California

Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.

      Petitioner Patrick Glass appeals the district court’s dismissal of his habeas

petition challenging his California convictions for sexual offenses against his

stepdaughter. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review de novo a district court’s denial of a habeas corpus petition. See

Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), however, we may not grant

habeas relief to a state prisoner unless the state court’s adjudication of the

prisoner’s case (1) “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,” or (2) “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.” 28 U.S.C. § 2254(d)(1)–(2).

“A state court’s determination that a claim lacks merit precludes federal habeas

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

      On February 27, 2006, Patrick Glass’s fourteen-year-old stepdaughter

alleged that Glass had raped her and her younger sister. Glass voluntarily

submitted to a police interview with Detective Mark Cordova, which lasted almost

two hours. Glass initially denied any sexual contact with his stepdaughters, but

eventually admitted it was “possible” he had touched one of his stepdaughter’s

breasts while preparing her for the shower. He agreed to take a polygraph test,

after which Cordova left the room to arrange the test.


                                            2
      Upon returning, Cordova informed Glass that he was in custody. Cordova

continued to question Glass without administering Miranda1 warnings. Cordova

later testified he did not realize that he failed to give the warnings until he

reviewed the tape of the interview the next day. On March 1, Cordova

“reinterviewed” Glass by asking him to confirm his prior admissions. This time,

Cordova read Glass his Miranda rights at the outset. The interview lasted thirteen

minutes.

      At a pretrial hearing, the state trial court found that Detective Cordova’s

failure to administer Miranda warnings during the first interview was inadvertent.

On appeal, the California Court of Appeal “accept[ed] the trial court’s finding that

Cordova’s failure to give the Miranda warning when he decided to take defendant

into custody was not deliberate.” Glass argues that the Court of Appeal’s decision

was either “contrary to” Missouri v. Seibert, 542 U.S. 600 (2004) or “an

unreasonable determination of the facts.” We disagree. Although the detective’s

two-step interrogation is troubling, we are bound by AEDPA’s standard of review.

      1. First, we may only hold that a state court decision is “contrary to” clearly

established federal law if the state court (1) “applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or (2) “confronts a set of facts


      1
          See Miranda v. Arizona, 384 U.S. 436 (1966).
                                            3
that are materially indistinguishable from a decision of [the] Court and

nevertheless arrives at a result different from [the Court’s] precedent.” Lockyer v.

Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,

405–06 (2000)) (internal quotation mark omitted). Here, the state court did

neither. See Reyes v. Lewis, 833 F.3d 1001, 1028 (9th Cir. 2016) (holding that

Justice Kennedy’s Seibert concurrence, which requires that the police

“deliberately” employ a two-step interrogation procedure, “constitutes ‘clearly

established’ law for the purpose of AEDPA review”).

      2. Second, we may only hold that a state court decision was based on “an

unreasonable determination of the facts” if it is “not merely wrong, but actually

unreasonable.” Id. at 1025 (quoting Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.

2004)) (internal quotation mark omitted). To grant relief, “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. (quoting

Taylor, 366 F.3d at 1000) (internal quotation marks omitted). Although arguable,

the state court’s finding that Detective Cordova did not deliberately employ a two-

step interrogation technique was not “actually unreasonable.”

      Accordingly, Glass’s challenge to his convictions fails.

      AFFIRMED.


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