                                                                            FILED
                             NOT FOR PUBLICATION                             AUG 18 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERT C. BURLEW,                                No. 09-17788

              Petitioner - Appellant,            D.C. No. 2:08-cv-02009-LKK-
                                                 CHS
  v.

A. HEDGPETH,                                     MEMORANDUM *

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                         Argued and Submitted May 9, 2011
                             San Francisco, California

Before: HUG and PAEZ, Circuit Judges, and O’GRADY, District Judge.**

       Petitioner-Appellant Robert C. Burlew, a state prisoner, appeals the district

court’s denial of his habeas petition. We have jurisdiction under 28 U.S.C. §§

1291, 2253, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Liam O’Grady, United States District Judge for the
Eastern District of Virginia, sitting by designation.
      We review de novo the district court’s denial of a habeas petition. Schell v.

Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). Burlew’s habeas petition is governed

by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under

the AEDPA, we must determine whether the state court proceedings “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

      Burlew argues that the state court unreasonably applied clearly established

federal law in concluding that his constitutional rights were not violated by the

admission of his incriminating statement that he “thought maybe [the items in his

trunk] were [stolen] and [that] he was moving them or helping someone move

them.” It is clearly established federal law that incriminating statements made

during custodial interrogation are not admissible against a criminal defendant

unless the defendant was made aware of his rights to silence and counsel before

voluntarily speaking. Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).

“[C]ustodial interrogation” means “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” Id. at 444. To determine whether an

individual was “in custody,” the state court must examine all of the circumstances


                                          2
surrounding the questioning and decide “whether there [was] a formal arrest or

restraint on freedom of movement of the degree associated with formal arrest.”

California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (internal quotation

marks omitted). Using this framework, the state court must ask whether a

reasonable person in the defendant’s situation “would have felt free to terminate

the interview and leave.” Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).

      It is undisputed that Burlew’s statement was made in response to a direct

question from Officer James Beaupre while Burlew was sitting in the back of

Beaupre’s patrol car. At the time Burlew made his statement, he was not

handcuffed and had not been informed that he was under arrest. Although the

question is close, the state court did not unreasonably apply federal law in

concluding that Burlew was not “in custody,” at the moment he was questioned.

The fact that Burlew was not handcuffed, coupled with the fact that Beaupre’s

interaction with Burlew was nonconfrontational, weighs against a custody

determination. See id. at 644 (noting that the “interrogation environment” is a

factor in the custody determination). We also note that we and our sister circuits

appear to be split on the issue of whether a defendant is “in custody” when he is

detained in the back of a police car. Compare United States v. Henley, 984 F.2d

1040, 1042 (9th Cir. 1993) (concluding that a defendant was in custody when he


                                          3
was “questioned by an FBI agent while sitting handcuffed in the back of a police

car,” although not under arrest); Figg v. Schroeder, 312 F.3d 625, 636 (4th Cir.

2002) (holding that the defendant was “seized” within the meaning of the Fourth

Amendment where, although not formally arrested, the defendant was detained in a

patrol car and not allowed to leave); United States v. Richardson, 949 F.2d 851,

856 (6th Cir. 1991) (same); with United States v. Murray, 89 F.3d 459, 462 (7th

Cir. 1996) (“[T]he fact that [the defendant] was questioned while seated in the back

of the squad car did not put him ‘in custody’ for purposes of the Miranda

warnings.”); United States v. Boucher, 909 F.2d 1170, 1773–74 (8th Cir. 1990)

(same). Moreover, the Supreme Court has emphasized that the determination of

whether a defendant was “in custody” for Miranda purposes is a general one,

which affords courts “more leeway . . . in reaching outcomes in case-by-case

determinations.” Yarborough, 541 U.S. at 664–65; see also Carey v. Musladin,

549 U.S. 70, 77 (2006) (noting that the state court did not unreasonably apply

clearly established federal law where there was a “lack of [Supreme Court]

holdings” on the question at issue and “lower courts ha[d] diverged widely in their

treatment of” the defendant’s claim).

      In light of all the circumstances surrounding the questioning of Burlew, we

conclude that the state court did not unreasonably apply federal law in holding that


                                          4
Burlew was not “in custody” at the time he made his incriminating statement. We

affirm the district court’s denial of habeas relief.

      AFFIRMED.




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