                 Cite as: 565 U. S. ____ (2011)            1

                          Per Curiam

SUPREME COURT OF THE UNITED STATES
     DAVID BOBBY, WARDEN v. ARCHIE DIXON
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

            No. 10–1540. Decided November 7, 2011


  PER CURIAM.
  Under the Antiterrorism and Effective Death Penalty
Act, a state prisoner seeking a writ of habeas corpus from
a federal court “must show that the state court’s ruling on
the claim being presented in federal court was so lacking
in justification that there was an error well understood
and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562
U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals
for the Sixth Circuit purported to identify three such
grievous errors in the Ohio Supreme Court’s affirmance of
respondent Archie Dixon’s murder conviction. Because it
is not clear that the Ohio Supreme Court erred at all,
much less erred so transparently that no fairminded jurist
could agree with that court’s decision, the Sixth Circuit’s
judgment must be reversed.
                         *    *    *
   Archie Dixon and Tim Hoffner murdered Chris Hammer
in order to steal his car. Dixon and Hoffner beat Hammer,
tied him up, and buried him alive, pushing the struggling
Hammer down into his grave while they shoveled dirt on
top of him. Dixon then used Hammer’s birth certificate
and social security card to obtain a state identification
card in Hammer’s name. After using that identification
card to establish ownership of Hammer’s car, Dixon sold
the vehicle for $2,800.
   Hammer’s mother reported her son missing the day
after his murder. While investigating Hammer’s disap­
2                     BOBBY v. DIXON

                         Per Curiam

pearance, police had various encounters with Dixon, three
of which are relevant here. On November 4, 1993, a police
detective spoke with Dixon at a local police station. It is
undisputed that this was a chance encounter—Dixon was
apparently visiting the police station to retrieve his own
car, which had been impounded for a traffic violation. The
detective issued Miranda warnings to Dixon and then
asked to talk to him about Hammer’s disappearance. See
Miranda v. Arizona, 384 U. S. 436 (1966). Dixon declined
to answer questions without his lawyer present and left
the station.
   As their investigation continued, police determined that
Dixon had sold Hammer’s car and forged Hammer’s signa­
ture when cashing the check he received in that sale.
Police arrested Dixon for forgery on the morning of No­
vember 9. Beginning at 11:30 a.m. detectives intermit­
tently interrogated Dixon over several hours, speaking
with him for about 45 minutes total. Prior to the interro­
gation, the detectives had decided not to provide Dixon
with Miranda warnings for fear that Dixon would again
refuse to speak with them.
   Dixon readily admitted to obtaining the identification
card in Hammer’s name and signing Hammer’s name on
the check, but said that Hammer had given him permis­
sion to sell the car. Dixon claimed not to know where
Hammer was, although he said he thought Hammer might
have left for Tennessee. The detectives challenged the
plausibility of Dixon’s tale and told Dixon that Tim
Hoffner was providing them more useful information. At
one point a detective told Dixon that “now is the time to
say” whether he had any involvement in Hammer’s disap­
pearance because “if Tim starts cutting a deal over there,
this is kinda like, a bus leaving. The first one that gets on
it is the only one that’s gonna get on.” App. to Pet. for
Cert. 183a. Dixon responded that, if Hoffner knew any­
thing about Hammer’s disappearance, Hoffner had not
                 Cite as: 565 U. S. ____ (2011)           3

                          Per Curiam

told him. Dixon insisted that he had told police everything
he knew and that he had “[n]othing whatsoever” to do
with Hammer’s disappearance. Id., at 186a. At approxi­
mately 3:30 p.m. the interrogation concluded, and the
detectives brought Dixon to a correctional facility where
he was booked on a forgery charge.
  The same afternoon, Hoffner led police to Hammer’s
grave. Hoffner claimed that Dixon had told him that
Hammer was buried there. After concluding their inter­
view with Hoffner and releasing him, the police had Dixon
transported back to the police station.
  Dixon arrived at the police station at about 7:30 p.m.
Prior to any police questioning, Dixon stated that he had
heard the police had found a body and asked whether
Hoffner was in custody. The police told Dixon that
Hoffner was not, at which point Dixon said, “I talked to
my attorney, and I want to tell you what happened.” State
v. Dixon, 101 Ohio St. 3d 328, 331, 2004–Ohio–1585, 805
N. E. 2d 1042, 1050. The police read Dixon his Miranda
rights, obtained a signed waiver of those rights, and spoke
with Dixon for about half an hour. At 8 p.m. the police,
now using a tape recorder, again advised Dixon of his
Miranda rights. In a detailed confession, Dixon admitted
to murdering Hammer but attempted to pin the lion’s
share of the blame on Hoffner.
  At Dixon’s trial, the Ohio trial court excluded both
Dixon’s initial confession to forgery and his later confes­
sion to murder. The State took an interlocutory appeal.
The State did not dispute that Dixon’s forgery confession
was properly suppressed, but argued that the murder
confession was admissible because Dixon had received
Miranda warnings prior to that confession. The Ohio
Court of Appeals agreed and allowed Dixon’s murder
confession to be admitted as evidence. Dixon was convict­
ed of murder, kidnaping, robbery, and forgery, and sen­
tenced to death.
4                      BOBBY v. DIXON

                         Per Curiam

   The Ohio Supreme Court affirmed Dixon’s convictions
and sentence. To analyze the admissibility of Dixon’s
murder confession, the court applied Oregon v. Elstad, 470
U. S. 298 (1985). The Ohio Supreme Court found that
Dixon’s confession to murder after receiving Miranda
warnings was admissible because that confession and his
prior, unwarned confession to forgery were both voluntary.
State v. Dixon, supra, at 332–334, 805 N. E. 2d, at 1050–
1052; see Elstad, supra, at 318 (“We hold today that a
suspect who has once responded to unwarned yet uncoer­
cive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite
Miranda warnings”).
   Dixon then filed a petition for a writ of habeas corpus
under 28 U. S. C. §2254 in the U. S. District Court for the
Northern District of Ohio. Dixon claimed, inter alia, that
the state court decisions allowing the admission of his
murder confession contravened clearly established federal
law. The District Court denied relief, but a divided panel
of the Sixth Circuit reversed. Dixon v. Houk, 627 F. 3d
553 (2010).
   The Sixth Circuit had authority to issue the writ of
habeas corpus only if the Ohio Supreme Court’s decision
“was contrary to, or involved an unreasonable application
of, clearly established Federal law,” as set forth in this
Court’s holdings, or was “based on an unreasonable de­
termination of the facts” in light of the state court record.
§2254(d); see Harrington, 562 U. S., at ___ (slip op., at 10).
The Sixth Circuit believed that the Ohio Supreme Court’s
decision contained three such egregious errors.
   First, according to the Sixth Circuit, the Miranda deci­
sion itself clearly established that police could not speak to
Dixon on November 9, because on November 4 Dixon had
refused to speak to police without his lawyer. That is
plainly wrong. It is undisputed that Dixon was not in
custody during his chance encounter with police on No­
                     Cite as: 565 U. S. ____ (2011)                   5

                              Per Curiam

vember 4. And this Court has “never held that a person
can invoke his Miranda rights anticipatorily, in a context
other than ‘custodial interrogation.’ ” McNeil v. Wisconsin,
501 U. S. 171, 182, n. 3 (1991); see also Montejo v. Louisi-
ana, 556 U. S. 778, ___ (2009) (slip. op., at 16) (“If the
defendant is not in custody then [Miranda and its proge­
ny] do not apply”).
  Second, the Sixth Circuit held that police violated the
Fifth Amendment by urging Dixon to “cut a deal” before
his accomplice Hoffner did so.1 The Sixth Circuit cited no
precedent of this Court—or any court—holding that this
common police tactic is unconstitutional. Cf., e.g., Elstad,
supra, at 317 (“[T]he Court has refused to find that a
defendant who confesses, after being falsely told that his
codefendant has turned State’s evidence, does so involun­
tarily”). Because no holding of this Court suggests, much
less clearly establishes, that police may not urge a suspect
to confess before another suspect does so, the Sixth Circuit
had no authority to issue the writ on this ground.2
——————
   1 In the Sixth Circuit’s view, the Ohio Supreme Court’s contrary con­

clusion that Dixon’s confession was voluntary “was based on an unrea­
sonable determination of the facts in light of the evidence presented in
the State court proceeding.” §2254(d)(2). The Sixth Circuit did not,
however, purport to identify any mistaken factual finding. It differed
with the Ohio Supreme Court only on the ultimate characterization of
Dixon’s confession as voluntary, and this Court’s cases make clear that
“the ultimate issue of ‘voluntariness’ is a legal question.” Miller v.
Fenton, 474 U. S. 104, 110 (1985); see also Arizona v. Fulminante, 499
U. S. 279, 287 (1991). This Court therefore addresses the question the
Sixth Circuit should have addressed: whether the Ohio Supreme
Court’s decision “was contrary to, or involved an unreasonable applica­
tion of, clearly established Federal law, as determined by the Supreme
Court of the United States.” §2254(d)(1).
   2 The only case the Sixth Circuit cited on this issue was Mincey v.

Arizona, 437 U. S. 385 (1978). Mincey involved the “virtually continu­
ous questioning of a seriously and painfully wounded man on the edge
of consciousness” who was in a hospital’s intensive care unit and who
6                          BOBBY v. DIXON

                              Per Curiam

   Third, the Sixth Circuit held that the Ohio Supreme
Court unreasonably applied this Court’s precedent in
Elstad. In that case, a suspect who had not received
Miranda warnings confessed to burglary as police took
him into custody. Approximately an hour later, after he
had received Miranda warnings, the suspect again con­
fessed to the same burglary. This Court held that the
later, warned confession was admissible because “there is
no warrant for presuming coercive effect where the sus­
pect’s initial inculpatory statement, though technically
in violation of Miranda, was voluntary. The relevant
inquiry is whether, in fact, the second [warned] statement
was also voluntarily made.” 470 U. S., at 318 (footnote
omitted).
   As the Ohio Supreme Court’s opinion explained, the
circumstances surrounding Dixon’s interrogations demon­
strate that his statements were voluntary. During Dixon’s
first interrogation, he received several breaks, was given
water and offered food, and was not abused or threatened.
He freely acknowledged that he had forged Hammer’s
name, even stating that the police were “welcome” to that
information, and he had no difficulty denying that he had
anything to do with Hammer’s disappearance. State v.
Dixon, 101 Ohio St. 3d, at 331, 805 N. E. 2d, at 1049.
Prior to his second interrogation, Dixon made an unsolic­
ited declaration that he had spoken with his attorney and
wanted to tell the police what had happened to Hammer.
Then, before giving his taped confession, Dixon twice
received Miranda warnings and signed a waiver-of-rights
form which stated that he was acting of his own free will.


——————
“clearly expressed his wish not to be interrogated” while in a “debilitat­
ed and helpless condition.” Id., at 399–401. There is simply nothing in
the facts or reasoning of Mincey suggesting that any of Dixon’s state­
ments were involuntary.
                     Cite as: 565 U. S. ____ (2011)                     7

                              Per Curiam

The Ohio Supreme Court recognized that Dixon’s first in-
terrogation involved “an intentional Miranda violation.”
The court concluded, however, that “as in Elstad, the
breach of the Miranda procedures here involved no actual
compulsion” and thus there was no reason to suppress
Dixon’s later, warned confession. 101 Ohio St. 3d, at 334,
805 N. E. 2d, at 1052 (citing Elstad, supra, at 318).
  The Sixth Circuit disagreed, believing that Dixon’s
confession was inadmissible under Elstad because it was
the product of a “deliberate question-first, warn-later
strategy.” 627 F. 3d, at 557. In so holding, the Sixth
Circuit relied heavily on this Court’s decision in Missouri
v. Seibert, 542 U. S. 600 (2004).3 In Seibert, police em­
ployed a two-step strategy to reduce the effect of Miranda
warnings: A detective exhaustively questioned Seibert
until she confessed to murder and then, after a 15- to 20­
minute break, gave Seibert Miranda warnings and led her
to repeat her prior confession. 542 U. S., at 604–606, 616
(plurality opinion). The Court held that Seibert’s second
confession was inadmissible as evidence against her even
though it was preceded by a Miranda warning. A plurali­
ty of the Court reasoned that “[u]pon hearing warnings
only in the aftermath of interrogation and just after mak­

——————
   3 Seibert was not decided until after the Ohio Supreme Court’s opin­

ion in this case, but was issued before this Court denied Dixon’s peti­
tion for certiorari seeking review of the Ohio Supreme Court’s decision.
It is thus an open question whether Seibert was “clearly established
Federal law” for purposes of §2254(d). See Smith v. Spisak¸ 558 U. S.
___, ___ (2010) (slip op., at 3). It is not necessary to decide that ques­
tion here because Seibert is entirely consistent with the Ohio Supreme
Court’s decision. Thus, if Seibert was clearly established law, the Ohio
Supreme Court’s decision was not “contrary to” or “an unreasonable
application of” Seibert. §2254(d). And if Seibert was not clearly estab­
lished law, Seibert’s explication of Elstad further demonstrates that the
Ohio Supreme Court’s decision was not contrary to or an unreasonable
application of Elstad.
8                      BOBBY v. DIXON

                          Per Curiam

ing a confession, a suspect would hardly think he had a
genuine right to remain silent, let alone persist in so
believing once the police began to lead him over the same
ground again.” 542 U. S., at 613; see also id., at 615 (de­
tailing a “series of relevant facts that bear on whether
Miranda warnings delivered midstream could be effective
enough to accomplish their object”). JUSTICE KENNEDY
concurred in the judgment, noting he “would apply a
narrower test applicable only in the infrequent case . . . in
which the two-step interrogation technique was used in a
calculated way to undermine the Miranda warning.” Id.,
at 622.
   In this case, no two-step interrogation technique of the
type that concerned the Court in Seibert undermined the
Miranda warnings Dixon received. In Seibert, the sus­
pect’s first, unwarned interrogation left “little, if anything,
of incriminating potential left unsaid,” making it “unnatu­
ral” not to “repeat at the second stage what had been said
before.” 542 U. S., at 616–617 (plurality opinion). But in
this case Dixon steadfastly maintained during his first,
unwarned interrogation that he had “[n]othing whatso­
ever” to do with Hammer’s disappearance. App. to Pet. for
Cert. 186a. Thus, unlike in Seibert, there is no concern
here that police gave Dixon Miranda warnings and then
led him to repeat an earlier murder confession, because
there was no earlier confession to repeat. Indeed, Dixon
contradicted his prior unwarned statements when he
confessed to Hammer’s murder. Nor is there any evidence
that police used Dixon’s earlier admission to forgery to
induce him to waive his right to silence later: Dixon de­
clared his desire to tell police what happened to Hammer
before the second interrogation session even began. As the
Ohio Supreme Court reasonably concluded, there was
simply “no nexus” between Dixon’s unwarned admission to
forgery and his later, warned confession to murder. 101
Ohio St. 3d, at 333, 805 N. E. 2d, at 1051.
                     Cite as: 565 U. S. ____ (2011)                    9

                              Per Curiam

   Moreover, in Seibert the Court was concerned that the
Miranda warnings did not “effectively advise the suspect
that he had a real choice about giving an admissible
statement” because the unwarned and warned interroga­
tions blended into one “continuum.” 542 U. S., at 612, 617.
Given all the circumstances of this case, that is not so
here. Four hours passed between Dixon’s unwarned inter­
rogation and his receipt of Miranda rights, during which
time he traveled from the police station to a separate jail
and back again; claimed to have spoken to his lawyer; and
learned that police were talking to his accomplice and
had found Hammer’s body. Things had changed. Under
Seibert, this significant break in time and dramatic
change in circumstances created “a new and distinct expe­
rience,” ensuring that Dixon’s prior, unwarned interroga­
tion did not undermine the effectiveness of the Miranda
warnings he received before confessing to Hammer’s mur­
der. 542 U. S., at 615; see also id., at 622 (KENNEDY, J.,
concurring in judgment) (“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”).4
   The admission of Dixon’s murder confession was con­
sistent with this Court’s precedents: Dixon received Mi-


——————
   4 The Sixth Circuit also concluded that “the Ohio Supreme Court

erroneously placed the burden of proof on Dixon to prove that his
confession was coerced.” Dixon v. Houk, 627 F. 3d 553, 558 (2010). But
the Ohio Supreme Court clearly said that “the state carries the burden
of proving voluntariness.” State v. Dixon, 101 Ohio St. 3d 328, 332,
2004–Ohio–1585, 805 N. E. 2d 1042, 1050. That the court’s opinion
discusses the absence of evidence of coerciveness alongside the affirma­
tive evidence of voluntariness in no way indicates that the court shifted
the burden onto Dixon.
10                    BOBBY v. DIXON

                         Per Curiam

randa warnings before confessing to Hammer’s murder;
the effectiveness of those warnings was not impaired by
the sort of “two-step interrogation technique” condemned
in Seibert; and there is no evidence that any of Dixon’s
statements was the product of actual coercion. That does
not excuse the detectives’ decision not to give Dixon Mi-
randa warnings before his first interrogation. But the
Ohio courts recognized that failure and imposed the ap­
propriate remedy: exclusion of Dixon’s forgery confession
and the attendant statements given without the benefit of
Miranda warnings. Because no precedent of this Court
required Ohio to do more, the Sixth Circuit was without
authority to overturn the reasoned judgment of the State’s
highest court.
  The petition for a writ of certiorari and respondent’s
motion to proceed in forma pauperis are granted. The
judgment of the Court of Appeals for the Sixth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
                                           It is so ordered.
