                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 22 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


THEODORE STEVENS,                                No. 15-15968

              Petitioner - Appellant,            D.C. No. 3:12-cv-00081-RCJ-
                                                 WGC
 v.

ROBERT LEGRAND, Warden; NEVADA                   MEMORANDUM*
ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                             for the District of Nevada
                Robert Clive Jones, Senior District Judge, Presiding

                        Argued and Submitted June 15, 2016
                             San Francisco, California

Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.

      Theodore Stevens appeals the district court’s denial of his habeas corpus

petition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The Nevada Supreme Court’s determination that Officer Hodgkinson and

Officer Sauchak did not deliberately employ a two-step strategy to undermine the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Miranda warning given to Stevens, was not an unreasonable determination of the

facts. The trial court made this determination after holding an evidentiary hearing,

and its conclusion is supported by the record. Therefore, even if Stevens’s first

unwarned confession was a result of custodial interrogation, the Nevada Supreme

Court’s decision that the trial court did not err in denying Stevens’s motion to

suppress his second, warned confession was not contrary to or an unreasonable

application of Missouri v. Seibert, 542 U.S. 600 (2004) (Kennedy, J., concurring).1

      Nor was the Nevada Supreme Court’s denial of Stevens’s claim that his

confession was involuntary contrary to or an unreasonable application of clearly

established Supreme Court precedent. Based on the evidence in the record, the

Nevada Supreme Court could have reasonably determined that Stevens’s waiver

was voluntary and was made without coercion and with full awareness of the

nature of his rights and the consequences of waiving those rights. See Berghuis v.

Thompkins, 560 U.S. 370, 382–83 (2010) (citing Moran v. Burbine, 475 U.S. 412,

421 (1986)); see also Oregon v. Elstad, 470 U.S. 298, 317 (1985).

      1
        We need not reach the question whether United States v. Davis, 2016 WL
3245043, — F.3d — (9th Cir. 2016) (en banc), requires us to rethink our
conclusion that Justice Kennedy’s concurrence is the controlling opinion in
Seibert, and thus clearly established Supreme Court precedent, see Reyes v. Lewis,
798 F.3d 815, 828–29 (9th Cir. 2015), because even if “we are bound only by the
result” of Seibert, Davis, Slip. Op. at 5, the Nevada Supreme Court’s decision
would not be contrary to or an unreasonable application of the result in Seibert.

                                          2
AFFIRMED.




            3
