                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 26 2014

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



                           FOR THE NINTH CIRCUIT


RICARDO RAMIREZ-MARENTES,                        No. 10-56191

              Petitioner - Appellant,            D.C. No. 8:05-cv-00551-GHK-
                                                 CW
       v.

STUART RYAN, Acting Warden,                      MEMORANDUM*

              Respondent - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                        Argued and Submitted June 3, 2014
                              Pasadena, California

Before: REINHARDT, FISHER and MURGUIA, Circuit Judges.

      Ricardo Ramirez-Marentes appeals the denial of his petition for a writ of

habeas corpus. We granted a certificate of appealability as to “whether the trial

court’s admission of appellant’s statements violated his rights under the Fifth

Amendment and Miranda v. Arizona, 384 U.S. 436 (1966).” We affirm the

thorough and well-reasoned decision of the district court.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
     1. The state court’s conclusion that Marentes’ unwarned statements were

voluntary is not an unreasonable application of clearly established federal law. See

28 U.S.C. § 2254(d)(1). Like the district court, we have reviewed the videotape of

the interrogation in question. At a minimum, fairminded jurists could disagree as

to whether Marentes’ will was overborne by the totality of the circumstances

surrounding the giving of his confession. See Dickerson v. United States, 530 U.S.

428, 434 (2000); Withrow v. Williams, 507 U.S. 680, 693-94 (1993) (identifying

potentially relevant circumstances). Although the detectives employed tactics such

as appealing to his conscience and minimizing the moral seriousness of the

offense, Marentes does not identify how these tactics, separately or taken as a

whole, amounted to impermissible police coercion in these circumstances. See

Berghuis v. Thompkins, 560 U.S. 370, 387 (2010) (“[E]ven where interrogations of

greater duration [than three hours] were held to be improper, they were

accompanied, as this one was not, by other facts indicating coercion, such as an

incapacitated and sedated suspect, sleep and food deprivation, and threats.”);

Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“[C]oercive police activity is a

necessary predicate to the finding that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause of the Fourteenth Amendment.”). The

detectives made no impermissible threats or promises of leniency. Marentes


                                          2
became emotional and upset at times, but he otherwise appeared alert, responsive

and coherent throughout his encounter with the detectives, despite his relative

youth. Cf. Doody v. Ryan, 649 F.3d 986, 1009-13 (9th Cir. 2011) (en banc).

     2. Even if Marentes was in custody before the detectives provided him with

Miranda warnings, thus requiring suppression of his pre-Miranda statements, he

has not demonstrated that the admission of his prewarning statements at trial had

“substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted); see also

Arizona v. Fulminante, 499 U.S. 279, 309-12 (1991). Although the entire

videotaped confession may have had a “devastating effect” on Marentes’ defense,

Rice v. Wood, 77 F.3d 1138, 1142 (9th Cir. 1996) (en banc), his far more damaging

statements came after he made a knowing and intelligent waiver of his Miranda

rights. Those postwarning statements were admissible, and Marentes fails to

demonstrate how exclusion of only his prewarning statements would have affected

the jury’s verdict.

     3. The state court reasonably applied clearly established federal law in

determining that Marentes’ postwarning statements were admissible because they

were voluntary and not obtained in violation of Miranda or its progeny. As the

Supreme Court clarified after the district court issued its decision, clearly


                                           3
established federal law encompasses only the holdings of the Supreme Court “as of

‘the time the state court renders its decision.’” Greene v. Fisher, 132 S. Ct. 38, 44

(2011) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011)). Here, Oregon

v. Elstad, 470 U.S. 298 (1985), is the clearly established law of relevance, because

Missouri v. Seibert, 542 U.S. 600 (2004), had not yet been decided when the state

court issued its decision. See Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.

2013).

     Because all of Marentes’ prewarning statements were voluntary and not the

product of police coercion (whether or not obtained in violation of Miranda), his

“postwarning confession [was] admissible unless it was involuntarily made despite

the Miranda warning.” United States v. Williams, 435 F.3d 1148, 1153 (9th Cir.

2006). The state court reasonably determined that Marentes’ postwarning

statements were voluntary based on “the surrounding circumstances and the entire

course of police conduct with respect to [Marentes].” Elstad, 470 U.S. at 318.

After a break, the detectives read Marentes his Miranda rights; Marentes indicated

that he understood these rights and affirmatively agreed to continue answering the

detectives’ questions. See Moran v. Burbine, 475 U.S. 412, 421 (1986); Elstad,

470 U.S. at 318 (holding that a defendant’s decision to continue speaking after

being informed of his rights is “highly probative” of the voluntariness of his


                                          4
subsequent statements). Throughout the balance of the interrogation, Marentes

remained responsive and conversational with the detectives, who employed similar

techniques to those used during the prewarning interrogation. The state court

reasonably determined that these techniques were not unduly coercive and that

Marentes’ will was not overborne.

    AFFIRMED.




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