                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 21 2017
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE DESALES MORSE,                            No.   15-15659

              Petitioner-Appellant,              D.C. No.
                                                 3:12-cv-00038-HDM-WGC
 v.

NEVADA ATTORNEY GENERAL;                         MEMORANDUM*
PALMER,

              Respondents-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                     Argued and Submitted September 13, 2016
                             San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.

      Petitioner George Morse appeals the denial of his petition for writ of habeas

corpus. We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      1. On direct appeal, the Nevada Supreme Court held Morse’s confession

properly admitted under Missouri v. Seibert, 542 U.S. 600 (2004), because the

Miranda warning effectively apprised Morse of his rights before he confessed.

The Nevada Supreme Court’s adjudication of Morse’s Seibert claim did not

“result[] in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

      Under Justice Kennedy’s controlling Seibert concurrence, see Reyes v.

Lewis, 833 F.3d 1001, 1028 (9th Cir. 2016), “[i]f the deliberate two-step strategy

has been used, postwarning statements that are related to the substance of

prewarning statements must be excluded unless curative measures are taken before

the postwarning statement is made,” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring in the judgment). “Curative measures should be designed to ensure that

a reasonable person in the suspect’s situation would understand the import and

effect of the Miranda warning and of the Miranda waiver.” Id.; see also United

States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (“[A] trial court must

suppress postwarning confessions obtained during a deliberate two-step

interrogation where the midstream Miranda warning—in light of the objective

facts and circumstances—did not effectively apprise the suspect of his rights.”).




                                          2
      The Nevada Supreme Court did not cite Kennedy’s controlling concurrence

in Seibert or address the deliberateness question it poses. But it did address the

“curative measures” issue or its equivalent. In doing so, the state court considered

appropriate factors for determining whether the Miranda warning, when given,

enabled Morse to “understand the import and effect of the Miranda warning and of

the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the

judgment); see also Reyes, 833 F.3d at 1027-28. Consistent with those factors, the

Nevada Supreme Court analyzed the nature of the pre-warning and post-warning

interrogations, contrasting their formality and the topics covered, and concluded

that the Miranda warning, when given, was “effective” and provided Morse with a

“genuine choice” whether to speak or remain silent.

      We cannot conclude that, in doing so, the Nevada Supreme Court’s decision

was an unreasonable application of Seibert. The state court’s opinion was not “so

lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

      First, unlike in Seibert, Williams, and Reyes, the pre-warning interrogation

was neither complete nor detailed. With some probing from Detective Smith,

Morse conveyed in general terms that he had made a mistake, that he did not

consider himself a “big molester,” and that he told his wife he was sorry for


                                            3
something he had done to his granddaughter. In contrast, in the post-warning

interrogation Morse confessed in detail to the incident with his granddaughter.

      Second, because the post-warning interrogation was considerably more

comprehensive and detailed than the first, the content of the two interrogations

overlapped only minimally. In both interrogations, the topic of molestation was

raised, and Morse indicated that he regretted an incident with his granddaughter

and that he had told his wife he was sorry in a phone call. Apart from that

repetition, the second interrogation produced new information.

      Third, it was reasonable to conclude that Detective Smith did not treat the

post-warning interrogation as continuous with the first. She referred to the car ride

conversation at the start of the post-warning interview, asking Morse to tell her

what the phone call with his wife had been about, and reminding him that she had

told him in the car that he was not a monster. Later in the conversation, Detective

Smith twice more reminded Morse that she had told him in the earlier conversation

that she did not think he was a monster. With these references, Detective Smith

acknowledged that the car ride conversation took place. But, unlike in Seibert, the

postwarning interview did not “resemble[] a cross-examination” on what Morse

had said earlier, and Detective Smith did not “confront[] [Morse] with [his]

inadmissible prewarning statements and push[] [him] to acknowledge them.”


                                          4
Seibert, 542 U.S. at 621 (Kennedy, J., concurring in the judgment). Additionally,

as the Nevada Supreme Court stressed, the car conversation was informal and

wide-ranging, while the postwarning interview was formal and directed.

      Some factors weigh against finding the Miranda warning effective and

therefore curative. Detective Smith conducted both interrogations, and both took

place in a custodial setting after Morse was placed under arrest, albeit in different

contexts and locations. The second interrogation also followed closely after the

first.1 Moreover, the intervening neutral topics of conversation in the police car,

although they may have served to relax Morse, may not have contributed to

making the Miranda warning effective. As a result, were we reviewing the case de

novo, we might well have concluded that the “break in time and circumstances

between the prewarning statement and the Miranda warning,” was insufficient to

ensure that Morse could “distinguish the two contexts and appreciate that the

interrogation ha[d] taken a new turn.” Id. at 622. Likewise, at no point did

Detective Smith warn Morse that his statements in the police car were likely

inadmissible. See id. (“[A]n additional warning that explains the likely




      1
        The length of time between the conversation in the police car and the
interrogation at the police station is unclear. The District Court assumed the
second started “soon after” Detective Smith and Morse arrived at the police station.
                                           5
inadmissibility of the prewarning custodial statement may be sufficient [as a

curative measure].”).

      Nevertheless, under the deferential AEDPA standard, we cannot say that the

record as a whole shows the Nevada Supreme Court unreasonably applied Seibert.

See 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the district court’s denial of

Morse’s habeas petition with respect to the Seibert claim.

      2. The Nevada Supreme Court’s determination that Morse’s sentence does

not violate the Eighth Amendment was likewise not “an unreasonable application

of[] clearly established Federal law.” See id. Morse’s sentence—life in prison

with the possibility of parole after 35 years—while severe, is not “grossly

disproportionate” to the grave crime of sexual assault of a minor. See Graham v.

Florida, 560 U.S. 48, 60 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957,

1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment));

Ewing v. California, 538 U.S. 11, 23 (2003). No intra- or inter- jurisdictional

comparison of sentences is required here because this is not “the rare case in which

a threshold comparison of the crime committed and the sentence imposed leads to

an inference of gross disproportionality.” Harmelin, 501 U.S. at 1005 (Kennedy,

J., concurring in part and concurring in the judgment).




                                          6
      3. Finally, the Nevada Supreme Court’s holding that the prosecution’s late

production of the sexual assault examination report did not violate Morse’s due

process rights was not an unreasonable application of Brady v. Maryland, 373 U.S.

83 (1963). See 28 U.S.C. § 2254(d)(1). A Brady violation occurs only if: (1) the

evidence is favorable to the accused; (2) the State suppressed the evidence; and (3)

the evidence is material such that prejudice ensued. Strickler v. Greene, 527 U.S.

263, 281-82 (1999).

      The sexual assault examination report was not favorable to Morse. The

reported absence of evidence of physical trauma was consistent with the charged

conduct. Moreover, the report’s characterization of M.B. as “advanced” and

“cooperative,” even if favorable to Morse, was not material, because a defense of

consent by a three-year-old to sexual assault would have been unavailing.

       AFFIRMED.




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