                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

HABIB TAWFEQ SALEH,                      No. 04-35509
             Petitioner-Appellant,
               v.                          D.C. No.
                                         CV-03-03106-JCC
GARY FLEMING,
                                            OPINION
            Respondent-Appellee.
                                     
      Appeal from the United States District Court
         for the Western District of Washington
   John C. Coughenour, Chief District Judge, Presiding

                 Argued and Submitted
           March 5, 2007—Seattle, Washington

                  Filed January 3, 2008

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
            Marsha S. Berzon, Circuit Judges.

              Opinion by Judge O’Scannlain;
              Concurrence by Judge Berzon




                            93
96                     SALEH v. FLEMING


                         COUNSEL

Corey Endo, Research and Writing Attorney, Federal Public
Defender, Seattle, Washington, argued the cause and was on
the briefs for the petitioner-appellant. Thomas W. Hillier, II,
Federal Public Defender, was on the briefs.

Ronda D. Larson, Assistant Attorney General, Seattle, Wash-
ington, argued the cause for the respondent-appellee and was
on the brief. Rob McKenna, Attorney General, State of Wash-
ington, was on the brief.


                          OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether a phone conversation with police
investigators initiated by a suspect who is in jail for an unre-
lated offense constitutes a “custodial interrogation” under
Miranda v. Arizona, 384 U.S. 436, 442 (1966), and its prog-
eny.

                               I

  Elizabeth Edwards was the manager of the Seattle, Wash-
ington apartment complex in which she lived. On July 9,
1996, she failed to report to work. Edwards’s maintenance
supervisor, Joel Keller, went to her apartment to check on her
                       SALEH v. FLEMING                     97
and discovered Edwards lying seriously injured on the living
room floor. Keller called 911 and soon thereafter the police
and paramedics arrived. Edwards had suffered blows to the
head and face, two of which left indentations in her skull. Her
sinus cavities were crushed and bone fragments were driven
into her brain. She died of complications caused by the attack
a week later.

   After initially suspecting a recent boyfriend of Edwards as
the murderer, the police eventually focused their investigation
on Edwards’s former husband, Habib Saleh. On March 3,
1998, a Seattle Police Detective went to the King County Jail
to interview Saleh, who was serving a jail sentence for
assaulting his son-in-law. Detective Ramirez took Saleh to an
interview room in the jail and interrogated him after reading
him his Miranda rights. On March 25, 1998, Detective
Ramirez returned to the jail to interview Saleh again. After
the detective presented Saleh with a written copy of his
Miranda rights, Saleh asked for an attorney. Detective
Ramirez asked Saleh what he wanted to do, and Saleh began
to cry and said that he wanted the electric chair so he could
join Edwards. He also said that he had nothing to do with
Edwards’s death.

  The next day, Saleh placed a collect call from the jail to
Detective Ramirez, and the two of them discussed the
Edwards case. Saleh again told Detective Ramirez that he
wanted the electric chair so he could be with Edwards, and
again denied killing Edwards.

   The State charged Saleh with first degree murder. At trial,
the evidence presented included the following: that Saleh had
a history of “verbal and physical” confrontations with
Edwards; that within an hour of the attack on Edwards, Saleh
had attacked his son-in-law in similar fashion to Edwards’s
attack; that blood spatter on a fascia board outside Edwards’s
apartment was consistent with Saleh’s DNA and with his low-
ering himself onto Edwards’s lanai from the roof; that, at 1:42
98                      SALEH v. FLEMING
a.m. on July 9, Saleh received treatment for a laceration on his
forearm; and that the scar from that wound matched the shape
of the stain outside Edwards’s apartment.

   At trial, the State tried to introduce certain statements (con-
cerning his love for Edwards and his desire to be executed)
that Saleh had made to police during the conversations that
had taken place in March 1998. The trial court suppressed
Saleh’s statements of March 3, 1998, finding that the State
had failed to demonstrate that Saleh had understood his
Miranda warning. Additionally, because the statements made
on March 25, 1998, were part of a custodial interrogation and
were made after Saleh had asked for counsel, those statements
were suppressed. The court also found that the March 25,
1998, statements, though inadmissible, were not the product
of coercion but were voluntary. The court concluded, how-
ever, that the statements made to Detective Ramirez during
the phone call that Saleh initiated on March 26, 1998, were
admissible.

   The Jury found Saleh guilty of first degree murder, and the
trial court sentenced him to 320 months in prison.

   On direct appeal, the Washington Court of Appeals
affirmed Saleh’s conviction. Saleh’s petition for review in the
Washington Supreme Court was denied, concluding his direct
appeal in state court. Saleh then filed a collateral attack on his
conviction in state court (a personal restraint petition), which
the Washington Court of Appeals denied. He thereafter filed
a motion for discretionary review in the Washington Supreme
Court, but the Commissioner of that court denied the motion.

   On November 13, 2003, Saleh filed his federal habeas peti-
tion with the district court arguing multiple grounds for relief.
On April 14, 2004, the magistrate judge issued her Report and
Recommendation recommending that Saleh’s petition be
denied. On June 2, 2004, the district court adopted the Report
and Recommendation of the magistrate judge, and denied
                          SALEH v. FLEMING                            99
Saleh’s petition with prejudice. Saleh timely appealed, and a
motions panel of this court issued a certificate of appealability
on five issues.1

                                   II

                                   A

   Saleh argues that the state trial court erred in admitting the
statements he made to the police in the March 26, 1998,
phone call. The Washington Court of Appeals held that
although Saleh was in jail during the phone call, because he
initiated the call and was free to end the conversation at any
time, it was not “custodial,” and thus no Miranda warnings
were required. Saleh argues that the Court of Appeals’s deci-
sion was contrary to the Supreme Court’s decision in Mathis
v. United States, 391 U.S. 1 (1968).

   [1] In Mathis, the Supreme Court did indeed hold that
“nothing in the Miranda opinion . . . calls for a curtailment
of the warnings to be given persons under interrogation by
officers based on the reason why the person is in custody.” Id.
at 4-5. But the facts of Mathis were unlike the facts here in
significant respects. First, the interrogation in Mathis was ini-
tiated by a federal agent, who interviewed Mathis while he
was in state prison, id. at 3 n.2; here, the conversation in ques-
tion was a phone conversation initiated by Saleh. Second,
there is no indication in Mathis that the prisoner was free to
end the interrogation with the agent; here, it is undisputed that
Saleh could have terminated the phone call he had begun at
any time. Thus, Mathis’s dependence upon Miranda’s discus-
sion of custody as relating to a deprivation of freedom by the
authorities, 391 U.S. at 5, is of no help to Saleh here, where
he freely placed the phone call and his freedom to terminate
  1
   In a concurrently filed memorandum disposition, we affirm the district
court’s denial of the petition as to the other issues covered by the COA.
See Saleh v. Fleming, No. 04-35509 (filed January 3, 2008).
100                        SALEH v. FLEMING
the discussion of Edwards’s murder was unaffected by his
unrelated incarceration.

   [2] We agree with the Eighth Circuit that “incarceration
does not ipso facto render an interrogation custodial,” and that
the need for a Miranda warning to the person in custody for
an unrelated matter will only be triggered by “some restriction
on his freedom of action in connection with the interrogation
itself.” Leviston v. Black, 843 F.2d 302, 304 (8th Cir. 1988);
see also Cervantes v. Walker, 589 F.2d 424, 427-28 (9th Cir.
1978) (rejecting a per se requirement of Miranda warnings for
all persons interrogated while incarcerated). Accordingly, the
Washington Court of Appeals’s determination that the March
26, 1998, phone conversation was not custodial for purposes
of Miranda was not contrary to clearly established Supreme
Court precedent.2

                                    B

   [3] Saleh also argues that the March 26, 1998, statements
should have been suppressed under the “cat out of the bag”
theory set forth in United States v. Bayer, 331 U.S. 532, 540
(1947) (“[A]fter an accused has once let the cat out of the bag
by confessing . . . he is never thereafter free of the psycholog-
ical and practical disadvantages of having confessed. . . . In
such a sense, a later confession always may be looked upon
as fruit of the first.”). Saleh argues that the statements made
on March 26 were substantially similar to the ones he made
in the earlier conversations on March 3, 1998, and March 25,
1998, in which his Miranda rights were violated. He con-
tends, in effect, that these cats could not be put back in the
bag.
  2
    The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs this case. AEDPA limits habeas relief in a claim such
as this to situations in which the state court’s decision was “contrary to,
or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); see Wil-
liams v. Taylor, 529 U.S. 362, 407-09 (2000).
                            SALEH v. FLEMING                             101
   [4] However, that argument is foreclosed by Medeiros v.
Shimoda, 889 F.2d 819 (9th Cir. 1989). In Medeiros, we held
that, under Oregon v. Elstad, 470 U.S. 298 (1985), the “cat
out of the bag” theory does not apply where a confession is
voluntarily made, under circumstances not requiring a
Miranda warning, subsequent to a technical Miranda viola-
tion. Medeiros, 889 F.2d at 823-24. Rather, the relevant
inquiry is whether the suspect “made his second statement
voluntarily.” Id. at 824; see Elstad, 470 U.S. at 318 (“[T]here
is no warrant for presuming coercive effect where the sus-
pect’s initial inculpatory statement, though technically in vio-
lation of Miranda, was voluntary. The relevant inquiry is
whether, in fact, the second statement was also voluntarily
made.”).

   [5] Here, the Washington Court of Appeals affirmed the
trial court’s conclusion that the March 25, 1998, statements,
though obtained in violation of Miranda, were voluntary.3 In
light of its conclusion that the March 26, 1998, phone conver-
sation was not a custodial interrogation (and therefore did not
require a Miranda warning), it concluded that under Elstad’s
reasoning, there was no reason to treat the March 26 state-
ments as tainted.

   Saleh seemingly does not challenge the state courts’ deter-
mination that his March 3, 1998, and March 25, 1998, state-
ments were voluntary. Nor does he contest that he initiated
the March 26, 1998, phone call and that he was free at all
times to end it.4 Although this case is distinguishable from
  3
     The trial court also explicitly noted that the March 3, 1998, statements,
though not obtained in compliance with Miranda, were not the product of
coercion.
   4
     Saleh’s reliance upon Missouri v. Seibert, 542 U.S. 600 (2004) (plural-
ity opinion), is misplaced in light of his initiation of the March 26 phone
call. In Seibert, the Court distinguished Elstad to address what a majority
saw as a deliberate, two-step interrogation designed to undermine Miran-
da’s protections. 542 U.S. at 609 (“The technique of interrogating in suc-
102                         SALEH v. FLEMING
Elstad inasmuch as there was no intervening Miranda warn-
ing between the March 25 interrogation and the March 26
phone call, because the latter was not a custodial interroga-
tion, no such warning was required. See Medeiros, 889 F.2d
819 (holding that “the fundamental constitutional principles”
underlying Elstad require its application even where there is
no intervening Miranda warning).

   [6] Accordingly, Elstad’s “relevant inquiry . . . whether, in
fact, the second statement was also voluntarily made” must be
answered in the affirmative. We therefore conclude that the
Washington Court of Appeals’s decision was correct; in any
event, we cannot conclude that it was contrary to clearly
established Supreme Court precedent.

                                     III

   For the foregoing reasons, the decision of the district court
is AFFIRMED.5




cessive, unwarned and warned phases raises a new challenge to
Miranda.”) (Souter, J., concurring); id. at 620 (“The police used a two-
step questioning technique based on a deliberate violation of Miranda.”)
(Kennedy, J., concurring in the judgment). Here, the conversation that was
admitted was not part of a deliberate police interrogation, but a phone call
freely placed by Saleh. We also note that in Seibert, Justice Kennedy (who
provided the decisive fifth vote) concurred separately in part to note that
in his view “Elstad was correct in its reasoning and its result.” Seibert, 542
U.S. at 620; see also United States v. Williams, 435 F.3d 1148, 1161 (9th
Cir. 2006) (holding that Elstad remains applicable after Seibert to circum-
stances in which an interrogator does not deliberately withhold an initial
Miranda warning).
   5
     Saleh’s motion to enlarge the record on appeal is denied as moot.
                        SALEH v. FLEMING                       103
BERZON, Circuit Judge, concurring:

   I concur in full in the opinion. If, however, the “cat out of
the bag” contention resolved in section II.B were not fore-
closed by Medeiros v. Shimoda, 889 F.2d 819 (9th Cir. 1989),
I would adopt the trenchant analysis of Judge Norris in dissent
in that case. Here, as in Medeiros, no valid Miranda warnings
were given after the unwarned inculpatory statement was first
made. Judge Norris would have held that in those circum-
stances, any later statement is not made voluntarily. See
Medeiros, 889 F.2d at 828, 832 (Norris, J., dissenting) (noting
that in Oregon v. Elstad, 470 U.S. 298 (1985), “the presump-
tion that the coercive effect of Elstad’s first confession under-
mined the voluntariness of his second confession was rebutted
by the administration and waiver of Miranda warnings prior
to the second,” and expressing the view that absent such inter-
vening warnings (or some other “tangible intervening event”),
Elstad and United States v. Bayer, 331 U.S. 532 (1947),
“teach that the coercive effect of the initial confession is suffi-
cient to require suppression of a later confession”). Were I
free to do so, I would come to the same conclusion.
