                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


THOMAS ANDREW WINTER,                            No. 13-15513

              Petitioner - Appellant,            D.C. No. 2:05-cv-00543-KJM-
                                                 EFB
  v.

A. K. SCRIBNER,                                  MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                       Argued and Submitted May 14, 2014
                            San Francisco, California

Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

       Petitioner Thomas Andrew Winter appeals the district court’s denial of his

petition for habeas corpus. See 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253(a), and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1.     Winter first argues that the state court unreasonably applied Miranda

v. Arizona, 384 U.S. 436 (1966), in holding that custody did not attach until Winter

made his second oral request to leave the police interrogation and that Winter’s

statements made before that point were therefore admissible. The state court

identified the correct legal standard for determining the point of custody when it

inquired whether “there was a restraint of person similar to an arrest, and . . .

whether, viewed objectively, a reasonable person would have felt free to leave.”

See Yarborough v. Alvarado, 541 U.S. 652, 662–65 (2004). When asked, Winter

voluntarily agreed to go to the station to answer some questions. Moreover, he was

advised that he was not under arrest and was free to leave. In light of these facts,

the state court’s determination that Winter was not in custody until the officers

ignored his second request to leave was neither contrary to nor an unreasonable

application of Supreme Court precedent, nor an unreasonable determination of the

facts in light of the evidence. See 28 U.S.C. § 2254(d). Winter is therefore not

entitled to relief on this claim.

       2.     Winter next argues that the state court’s determination that the trial

court properly admitted his post-Miranda statements constituted an unreasonable

application of Oregon v. Elstad, 470 U.S. 298 (1985). We disagree. Under the

rule set forth by the Supreme Court in Elstad, “a suspect who has once responded


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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. Winter’s arguments that the officers in this case deliberately delayed

giving him warnings and exploited his pre-Miranda statements appear to rest on

Missouri v. Seibert, 542 U.S. 600, 621–22 (2004) (Kennedy, J., concurring). But

Seibert does not govern this case because it had not yet been issued when the state

court decided Winter’s case and, accordingly, was not the clearly established

federal law. See Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.), cert.

denied, 134 S. Ct. 234 (2013). Elstad, which was the governing case at the time,

does not clearly prohibit the admission of post-Miranda statements where officers

use a defendant’s pre-Miranda statements to aid their post-Miranda interrogation.

      3.     Winter also argues that his confession was not admissible because his

statements were coerced. The state court determined that the interrogation was not

coercive. This determination was neither contrary to nor an unreasonable

application of clearly established federal law, nor was it an unreasonable

determination of the facts in light of the evidence. Harrington v. Richter, 131 S.

Ct. 770, 786 (2011). Accordingly, Winter is not entitled to habeas relief on this

ground.




                                         -3-
      4.     Finally, we reject Winter’s argument that the state court unreasonably

determined that Winter did not unequivocally invoke his right to remain silent.

Neither Winter’s: (1) inquiries as to whether he could leave; (2) requests to speak

with his mother; nor (3) statements indicating “that’s all I have to say on the whole

thing” so clearly invoked his right to remain silent that the state court’s

determination to the contrary may be deemed unreasonable.

      AFFIRMED.




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