                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOVAN’Z SMITH,                           No. 14-15162
              Petitioner-Appellant,
                                            D.C. No.
                v.                       2:11-cv-03312-
                                           MCE-GGH
KEN CLARK, Warden,
            Respondent-Appellee.
                                            ORDER


                Filed October 22, 2015

  Before: Consuelo M. Callahan, Milan D. Smith, Jr.,
          and Paul J. Watford, Circuit Judges.

                       Order;
             Dissent by Judge Fletcher;
  Concurrence by Judge Callahan and Judge M. Smith
2                         SMITH V. CLARK

                           SUMMARY*


                          Habeas Corpus

    The panel filed an order rejecting a sua sponte en banc
call in a case in which the panel affirmed California state
prisoner Jovan’z Smith’s habeas corpus petition conviction
for assault on a child causing death.

    Dissenting from the denial of rehearing en banc, Judge W.
Fletcher wrote that the California Court of Appeal’s
conclusion that Smith was not “in custody” under Miranda
rested on a misreading of California v. Beheler, 463 U.S.
1121 (1983) (per curiam) – i.e., that Beheler establishes a
bright-line rule that a suspect who has been told repeatedly
that he is “not under arrest” is not “in custody” under
Miranda. Judge Fletcher wrote that this is not the law, and
that a police officer cannot remove an interrogation from
Miranda’s reach simply by reciting magic words.

    Concurring in the denial of rehearing en banc, Judges
Callahan and M. Smith disagreed with the Judge W.
Fletcher’s characterization of the state appellate court’s
decision, description of the circumstances surrounding
Smith’s interview, and legal conclusions.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       SMITH V. CLARK                          3

                           ORDER

    A sua sponte call for a vote on rehearing this case en banc
was made by an active judge of this court. The call failed to
receive a majority of the votes of the nonrecused active
judges. Fed. R. App. P. 35. The sua sponte en banc call is
rejected. Judge Fletcher’s dissent from denial of rehearing en
banc and Judge Callahan and Judge Smith’s concurrence in
denial of rehearing en banc are filed concurrently with this
Order.



W. FLETCHER, Circuit Judge, dissenting from the denial of
rehearing en banc:

   In this case, a 16-year-old high school student named
Jovan’z Smith was taken to a police station and subjected to
four hours of interrogation in a small, windowless room.
Smith was not read his Miranda rights. Four hours later, still
without his Miranda warnings, he confessed. The only
question before this court is whether Smith was “in custody”
under Miranda when he confessed.

    The California Court of Appeal concluded that Smith was
not “in custody.” It relied exclusively on the “fact” that, in
the words of the court, he “was told three times that he was
not under arrest and was free to go.” See People v. Smith,
No. A125912, 2010 WL 4233298, at *3 (Cal. Ct. App. Oct.
27, 2010) (unpublished). In an unpublished disposition, a
three-judge panel of this court denied his petition for a writ of
habeas corpus, concluding that the Court of Appeal’s opinion,
while suspect, was neither “contrary to,” nor involved “an
unreasonable application of, clearly established Federal law.”
4                      SMITH V. CLARK

28 U.S.C. § 2254(d)(1). Smith v. Clark, No. 14-15162, 2015
WL 2119461, at *2 (9th Cir. May 7, 2015).

    I disagree. Smith was clearly “in custody” under
Miranda. The California Court of Appeal’s conclusion to the
contrary rested on a misreading of California v. Beheler,
463 U.S. 1121 (1983) (per curiam). In the Court of Appeal’s
reading, Beheler establishes a bright-line rule that a suspect
who has been told repeatedly that he is “not under arrest” is
not “in custody” under Miranda. But this is not the law. A
police officer cannot remove an interrogation from Miranda’s
reach simply by reciting magic words. We should have
corrected the Court of Appeal’s error. Smith’s conviction,
and many others, hang in the balance.

    I respectfully dissent from our decision not to rehear this
case en banc.

                        I. Background

                          A. Smith

     Jovan’z Smith was 16 years old when he was taken from
his classroom and brought to the Vallejo Police Department
for questioning. Over the next four hours, he was
interrogated in a small windowless room by a team of three
police officers about the choking death of his daughter. The
officers took his cell phone and did not return it; they evaded
his questions about whether he was free to leave, at one point
clearly implying that he could not leave as long as officers
still had questions; they arranged for his daughter’s maternal
grandmother to come to the station to question and berate
him; they administered a lie detector test, which they told him
he failed; after the lie detector test, they repeatedly told him
                       SMITH V. CLARK                         5

that he was lying; they then told him, “You can’t leave this
room lying.” Smith confessed only after he had been told that
he could not leave the room lying. After he confessed, the
officers read him his Miranda rights. Smith then repeated the
confession he had just given.

    The California Court of Appeal’s decision that Smith was
not in “custody” for the purposes of Miranda v. Arizona,
374 U.S. 436 (1966), turned on the “fact” that Smith,
according to the Court of Appeal, “was told three times that
he was not under arrest and was free to go.” Smith, 2010 WL
4233298, at *3. This misstates the record: Smith was told
only once, at the beginning of the interrogation, that he was
“free to go.”

    Smith was, however, told three times that he was “not
under arrest.” The first time was at Smith’s high school,
when a uniformed Vallejo police officer told him he was “not
under arrest” but that an investigator wanted to speak to him.
Smith agreed to accompany the officer to the Vallejo Police
Department. They drove to the police station in a patrol car,
with the officer in the front and Smith in the back. According
to the officer, they had a “friendly conversation” on the way
to the station. Once at the station, the officer placed Smith in
an interview room. It was roughly 2:30 PM.

    The second time was in the interview room, at the
beginning of Smith’s interrogation, when Detective Sharon
Fong entered the room, introduced herself, and told Smith he
was “not under arrest” and was “free to leave at any time.”
It was roughly 2:33 PM.

   Fong and Smith spoke for about twenty minutes, during
which time Smith offered the first of several explanations
6                      SMITH V. CLARK

about what happened to his 18-month-old daughter, T. Smith
told Fong he had accidentally left baby wipes on T.’s bed. He
said that he turned away, and when he turned back, T. was
“turning purple” and “throwing up blood.” He said that the
doctors later told him that T. had swallowed a baby wipe.

    Around 2:55 PM, a second police officer, Detective Eric
Mustard, entered the interview room. Over the next half
hour, Mustard asked increasingly hostile questions. He asked
Smith how many children he had. He asked Smith how many
girlfriends he had. He told Smith, “Honesty is a huge issue
right here. . . . So be real honest with me.” He expressed
skepticism that T. would have swallowed the baby wipes, and
noted that “we will figure that out . . . forensically.” He said,
“[S]ometimes we get caught up in the moment and we do
something that we regret and we feel bad for.” He suggested
that Smith confess, and told Smith that if he did not, and it
later came out that he had lied, “people are gonna look at you
and judge you as a cold-hearted son-of-a-bitch.” When
Mustard left the room, he took Smith’s cell phone.

    Around 4:10 PM, Mustard returned with T.’s maternal
grandmother, N. N. began to cry almost immediately.
Mustard told Smith, “You can look at me and you can tell me
whatever story you want to tell me, [but] that’s blood to that
lady.” He told Smith again that he did not believe his story:

        I told you this earlier and I tell you again, you
        gotta do the right thing, man, ‘cause if you
        want to be a good person, if you want people
        to think you’re a good person, if something
        bad happened, an accident happened and this
        wasn’t something that’s cold . . . A lotta
        things runnin’ through your mind right now,
                      SMITH V. CLARK                         7

       I know that. I told you if the truth comes out
       today I can help you. If it comes out
       tomorrow or the next day or next week I can’t
       help you. Today, the truth.

He asked: “Can you look that lady in the eye and tell her you
didn’t do that?” N. then told Smith that her granddaughter,
T., was brain-dead.

    Around 4:50 PM, after N. and Mustard had left, Detective
Frank Pucci arrived to conduct a lie detector test. As Pucci
set up the test, Smith asked, “After this, will I be able to go
home?” Pucci responded, “You know what, what I don’t
know is, are you and Detective Mustard done talking?”
Smith replied, “I don’t know.” Pucci said, “Okay, um, yeah.
You understand you’re not under arrest, okay? We’re just
trying to gather all the facts.” Pucci ended the exchange by
saying, “So there may be some questions with Detective
Mustard, I don’t know. Alright?” This was the third and
final time Smith was told that he was “not under arrest.” It
was roughly 4:55 PM.

    The interrogation continued for another hour and a half.
During the lie detector test, Pucci asked Smith whether he
had put the baby wipe in T’s mouth. Smith said that he had
not. After the test, Pucci left the interview room. When
Pucci returned with Mustard, he told Smith that he had failed
the test. The officers told Smith to “be honest,” and not to
“lie to [him]self.” Smith changed his story somewhat, stating
that he had seen T. choking on the baby wipe and had reached
in to take it out. He maintained, however, that he had not
intentionally hurt her.
8                      SMITH V. CLARK

    The officers insisted that Smith was lying. Pucci asked,
“Jovan’z, it didn’t happen like that, did it?” Smith said it had.
Pucci said, “I hear what you’re saying. But it didn’t happen
like that.” Smith repeatedly insisted that it had, reiterating
that he had gotten up to change the channel on the television
and had turned around to find T. choking. Finally, Pucci told
him: “Don’t lie, man. You can’t leave this room lying, bro.”
It was 6:10 PM.

     Twenty minutes later, after he had been told “you can’t
leave this room lying,” Smith confessed. He told his
interrogators that he had pushed the baby wipes into T.’s
mouth in a moment of anger. Mustard suggested that they
take a break, and that Smith “write that little girl a letter” and
tell her that he was sorry. Shortly thereafter, the officers
brought Smith a slice of pizza, the first food he had been
given since he arrived at the station. Around 8:30 PM, in a
different room in the station, the officers finally read Smith
his Miranda warnings. In response to questions, Smith
repeated the confession he had given earlier. It had been six
hours since he was first brought to the police station.

    Smith was prosecuted for murder and assault of a child
causing death. He moved to suppress his statements as
obtained in violation of Miranda, but the motion was denied.
The jury watched a tape of his pre-Miranda interrogation.
The jury hung on the murder charge but convicted him of the
assault charge, and Smith was sentenced to 25 years to life in
state prison.

                          B. Beheler

   What happened to Smith in the police station is not
unusual. As Professor Charles Weisselberg has extensively
                       SMITH V. CLARK                          9

documented, police officers in California are specifically
instructed to inform suspects that they are “not under arrest”
in order to “ma[k]e certain that the interrogation w[ill] be
seen as non-custodial.” Charles D. Weisselberg, Mourning
Miranda, 96 Cal. L. Rev. 1519, 1542–44 (2008). This is
known as a “Beheler admonishment,” after California v.
Beheler, 463 U.S. 1121 (1983) (per curiam). The defendant
in Beheler, who gave an inculpatory statement to the police,
had been “specifically told that he was not under arrest.” Id.
at 1122. The California police academies have interpreted
Beheler to mean that, if a police officer says the magic words,
telling a suspect that he is “not under arrest,” the suspect will
not be found to have been in “custody” under Miranda.

    Beheler admonishments play a major role in instructional
material produced by the California Commission on Peace
Officer Standards and Training (“POST”). As Weisselberg
documents, one set of POST training materials describe
Beheler as “a wonderful case for use.” Weisselberg, supra,
at 1542. Another POST course dramatizes the use of Beheler
admonishments on a suspect in connection with “the full
toolkit of interrogation tactics,” including confrontation and
minimization techniques (the use of sympathy and
justifications to induce a confession). Id. at 1544. The same
POST course features a debate between experts on whether,
if a suspect attempts to exercise his right to leave the
interview, the police should allow him to do so. Id.

    The use of Beheler admonishments is not limited to
California. Cases from the federal courts, and over 31 state
courts, demonstrate the use of similar tactics nationwide. Id.
at 1545 nn.140–41; see, e.g., United States v. McCarty,
475 F.3d 39, 46 (1st Cir. 2007); United States v. LeBrun,
363 F.3d 715, 718 (8th Cir. 2004); Fitzpatrick v. State,
10                    SMITH V. CLARK

900 So. 2d 495, 510 (Fla. 2005); State v. Munoz, 972 P.2d
847, 856 (N.M. 1998); State v. Hobson, 648 A.2d 1369,
1370–72 (R.I. 1994); State v. Bronson, 496 N.W.2d 882, 889
(Neb. 1993). An FBI publication from the 1980s similarly
instructs federal agents to inform suspects that they are not
under arrest, “thus negating the need for the [Miranda]
warning.” See Charles E. Riley III, Finetuning Miranda
Policies, FBI Law Enforcement Bull. 23, 24–25 (1985); see
also Weisselberg, supra, at 1546 nn.145–46.

    As Weisselberg notes, the use of Beheler admonishments
is clearly strategic in nature. Beheler admonishments help
police officers (falsely) convey to suspects that they are not
under suspicion, thereby enhancing the effectiveness of “soft”
tactics, such as minimization, that induce confessions. But
they also have an even more powerful effect. As interpreted
by the police and California state courts, they serve as
virtually conclusive evidence that a suspect was not in
“custody” during an interrogation, and therefore that no
Miranda warnings were required. In other words, they permit
police officers to remove confessions from Miranda’s reach.

    Sometimes, it will not be possible to determine whether
police officers used Beheler admonishments strategically. In
this case, however, it is easy. At 3 PM, Detective Mustard
entered the interview room to take over Smith’s interrogation.
Before he asked Smith any questions, however, Mustard
turned to Detective Fong and asked, “Are you Beheler-ing
here?” Fong answered, “Yes.”

                          C. Smith

   Smith appealed his conviction to the California Court of
Appeal. His sole argument was that the videotape should
                        SMITH V. CLARK                    11

have been suppressed because it was obtained in violation of
Miranda because he had been in custody when he first
confessed. The Court of Appeal denied his claim. It held that
“the trial court’s ruling was well supported.” Smith, 2010
WL 4233298, at *3. It explained:

       The record here indicates that appellant was
       told three times that he was not under arrest
       and that he was free to go. The first occurred
       when appellant was at school. Officer
       Barrientos told appellant he was not under
       arrest and he asked appellant whether he was
       willing to answer some questions at the police
       station. The second time occurred when
       Detective Fong began interviewing appellant
       at the police station. Fong told appellant that
       he was not under arrest and that he was free to
       terminate the interview and leave at any time.
       The third time occurred when Detective Pucci
       came into the interview room to give
       appellant a voice stress test. Appellant asked
       Pucci whether he could leave after the test.
       Pucci said he did not know, but he then went
       on to tell appellant yet again that he was not
       under arrest. We think a reasonable person
       who is told repeatedly that he is not under
       arrest and that he is free to go would
       understand that he is not under arrest and
       that he is free to go. We conclude the trial
       court ruled correctly.

Id. (emphasis added).
12                     SMITH V. CLARK

    On federal habeas review, the magistrate judge concluded
Smith’s was a “close case.”              Smith v. Clark, No.
2:11-CV-3312, 2013 WL 4409717, at *1 (E.D. Cal. Aug. 15,
2013). It concluded that if Smith’s age were taken into
consideration, as required by J.D.B. v. North Carolina, 131 S.
Ct. 2394 (2011), the state court’s conclusion that Smith was
not “in custody” would be “unreasonable” under 28 U.S.C.
§ 2254(d) and Harrington v. Richter, 562 U.S. 86, 101
(2011). Id. at *1. Because J.D.B. postdated the Court of
Appeal’s decision, however, the magistrate judge concluded
that the Court of Appeal did not err in not factoring Smith’s
age into its analysis, and that, absent consideration of Smith’s
age, the court’s decision was not “unreasonable” under
§ 2254(d). Id. at *26. The district court approved the
magistrate judge’s recommendation that habeas be denied,
but it certified for appeal the question whether the
interrogation was custodial.

    A three-judge panel affirmed the denial of Smith’s
petition, relying in large part on the rationale of the
magistrate judge. See Smith, 2015 WL 2119461, at *2.
Judge Watford concurred. See id. at *3–6 (Watford, J.,
concurring). He wrote that he found the denial of Smith’s
motion to suppress “troubling.” Id. at *3. Despite his
“misgivings,” however, Judge Watford felt “compelled to
affirm under AEDPA.” Id. at *6.

                        II. Discussion

    As this case illustrates, the California courts — and the
California police academies — have misread Beheler. They
interpret it as creating a bright-line rule that a suspect who
has been told repeatedly that he is “not under arrest” is not “in
custody” under Miranda. But Beheler does not stand for such
                      SMITH V. CLARK                      13

a rule, nor could it. It has never been the law that a police
officer can insulate an otherwise clearly custodial
interrogation from Miranda’s reach simply by telling a
suspect that he or she is “not under arrest.” Because Smith’s
conviction rests on the Court of Appeal’s erroneous
understanding of what it means to be “in custody” under
Miranda, we should have granted his petition for a writ of
habeas corpus.

    Under AEDPA, we may grant a petition for a writ of
habeas corpus only if the state court judgment was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court.” See 28 U.S.C. § 2254(d)(1). We “look to the last
reasoned state court adjudication on the merits of [Smith’s]
Miranda claim, which was the decision of the California
Court of Appeal.” Thompson v. Runnels, 705 F.3d 1089,
1096 (9th Cir. 2013). There is no question that the Court of
Appeal’s judgment was “contrary to” the law set forth by the
Supreme Court in a long line of cases ranging from Howes v.
Fields, 132 S. Ct. 1181 (2012), to Yarborough v. Alvarado,
541 U.S. 652 (2004), to Thompson v. Keohane, 516 U.S. 99
(1995), to Beheler itself.

    Miranda holds that certain warnings are required in the
context of custodial interrogations given “the compulsion
inherent in custodial surroundings.” See 384 U.S. at 458.
The word “custody” is a “term of art that specifies
circumstances that are thought generally to present a serious
danger of coercion.” Howes, 132 S. Ct. at 1189. In
determining whether a person is in “custody” for purposes of
Miranda, the Supreme Court has held that “[t]wo discrete
inquiries are essential: first, what are the circumstances
surrounding the interrogation; and second, given those
14                    SMITH V. CLARK

circumstances, would a reasonable person have felt he or she
was not at liberty to terminate the interrogation and leave.”
Thompson, 516 U.S. at 112. The “ultimate inquiry” is
whether there was “a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.” Id.
If there is, Miranda warnings are required.

    The Supreme Court has repeatedly instructed courts to
“examine ‘all of the circumstances surrounding the
interrogation.’” Fields, 132 S. Ct. at 1189 (quoting Stansbury
v. California, 511 U.S. 318, 322 (1994) (per curiam)).
Relevant factors include

       the location of the questioning, see Maryland
       v. Shatzer, 130 S. Ct. 1213, 1223–26 (2010),
       its duration, see Berkemer v. McCarty,
       468 U.S. 420, 437–38 (1984), statements
       made during the interview, see Oregon v.
       Mathiason, 429 U.S. 492, 495 (1977) (per
       curiam); Alvarado, 541 U.S. at 665;
       Stansbury, 511 U.S. at 325, the presence or
       absence of physical restraints during the
       questioning, see New York v. Quarles,
       467 U.S. 649, 655 (1984), and the release of
       the interviewee at the end of the questioning,
       see Beheler, 463 U.S. at 1122–23.

Fields, 132 S. Ct. at 1189 (citations altered); see also United
States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).

    In this case, virtually all of these factors lead to a
conclusion that Smith was in “custody” under Miranda.
Smith was interrogated for four hours (and held for nearly
six) before he was read Miranda warnings. He was
                      SMITH V. CLARK                        15

interrogated in a small windowless room in “the bowels” of
the police station. His cell phone was taken from him and not
returned. Although the interrogating officers were friendly at
first, they quickly became hostile. Within an hour they had
all but stated that they suspected him of T.’s death. Smith
finally agreed to take a lie detector test, which the officers
told him that he had failed. When he continued to maintain
his innocence, the officers told him flatly that they did not
believe him: “Jovan’z, it didn’t happen like that,” said one.
“You can’t leave this room lying, bro,” said the other. No
reasonable person in these circumstances — whether a
sixteen-year-old or a mature adult — would think that he was
free to leave until he told a story that the officers believed.

    The Court of Appeal’s contrary conclusion rested entirely
on the “fact” that, in its words, Smith “was told three times
that he was not under arrest and that he was free to go.” As
a preliminary matter, this misstates the record: Smith was not
told three times that he was “free to go.” He was told only
once, before questioning began, that he was free to go.
Instead, he was told three times that he was “not under
arrest.” A lay person understands that the statement “you’re
free to go” means precisely that, but a lay person does not
necessarily understand that the statement “you’re not under
arrest” means “you’re free to terminate the interrogation and
leave.”

    Further, the officers’ three statements that Smith was “not
under arrest” would not lead a reasonable person to feel that
he was free to terminate the interrogation under the
circumstances here. The first two admonishments came
early, once at the high school and then before the
interrogation had begun. And the third admonishment could
hardly have put Smith on notice that he was free to leave once
16                   SMITH V. CLARK

the interrogation had begun. The third admonishment was
given when Smith asked Detective Pucci whether he could go
home after taking the lie detector test. Judge Watford,
concurring separately in the panel disposition, put it well:

       The officer didn’t respond with the only
       answer consistent with Smith’s supposed
       freedom to leave, which would have been
       “yes, of course.” Instead, he told Smith,
       “Hey, you know, I don’t know. Are you and
       Detective Mustard done talking?” That
       response seems pretty clearly to indicate that
       Smith wasn’t free to leave whenever he chose
       but rather only when Detective Mustard had
       finished interrogating him. That the officer
       hastily added, “You understand you’re not
       under arrest, okay?” doesn’t seem to change
       anything.

Smith, 2015 WL 2119461, at *5 (Watford, J., concurring).

    Thus, even if I thought the Court of Appeal had applied
the correct standard — and I do not — I would conclude it
had unreasonably applied it. Each of the factors that the
Supreme Court has told us to consider when determining
whether someone is “in custody” under Miranda, except one,
point toward the conclusion that Smith was in custody. And
the admonishments that he was not under arrest were of
basically no use to Smith — two were provided four hours
before he confessed, and the third conveyed the opposite
message that the Court of Appeal interpreted it to convey.

    The Supreme Court has instructed lower courts to weigh
all of the circumstances surrounding an interrogation to
                       SMITH V. CLARK                         17

determine whether it was “custodial.” See Howes, 132 S. Ct.
at 1189. But the Court of Appeal brushed aside these
circumstances in favor of a bright-line rule that verbal
admonishments alone are sufficient to assure a reasonable
person that he is “free to go”: “We think a reasonable person
who is told repeatedly that he is not under arrest and that he
is free to go would understand that he is not under arrest and
that he is free to go.” Smith, 2010 WL 4233298, at *3. It
then rejected every argument that Smith made by invoking
the “fact” that he had been told, three times, that he was “not
under arrest” and was “free to go.”

    Smith first argued that a California Supreme Court case,
People v. Ochoa, 19 Cal. 4th 353 (1998), supported his claim
that he was “in custody” under Miranda. The Court of
Appeal rejected Smith’s analogy to Ochoa, relying
exclusively on the number of times the police had told Smith
that he was free to go. It wrote: “The situation here is even
more clear than [in] Ochoa because the appellant [Smith] was
told specifically and repeatedly that he was not under arrest
and that he was free to go. Like Ochoa we conclude a
reasonable person in appellant’s position would understand
he was free to go.” Smith, 2010 WL 4233298, at *3
(emphasis added).

    Smith next argued that he was “in custody” because (1) he
was taken to the police station in a patrol car and (2) he was
interrogated for over four hours at the station. The Court of
Appeal dismissed both facts as irrelevant on the ground that
Smith had been told three times that he was “not under
arrest.” It wrote: “While appellant rode to the police station
in a patrol car, he did so only after agreeing to do so and after
being told specifically that he was not under arrest.” Id.
(emphasis added). The court explained that “[a]ny coercion
18                     SMITH V. CLARK

that might otherwise have been present due to the length of
the questioning was lessened by the fact that at three different
points during that questioning, appellant was told that he was
not under arrest.” Id. (emphasis added).

    Finally, Smith argued that he was “in custody” because he
had asked several times whether he could leave. In particular,
he pointed to the conversation he had with Detective Pucci
reproduced above. In this conversation, Smith asked Pucci if
he could leave after he had finished the lie detector test.
Pucci responded, “Hey, you know, I don’t know. Are you
and Detective Mustard done talking?” In other words, Pucci
suggested to Smith that he was not free to leave. But the
Court of Appeal dismissed the relevance of this exchange on
the same ground it dismissed Smith’s other arguments:
“Pucci then went on to tell appellant that he was not under
arrest. We think a reasonable person who is told that he is
not under arrest would understand that he is not in custody.”
Id. at *4 (emphasis added).

    The Court of Appeal, in other words, dismissed every
single one of Smith’s arguments as to why he was “in
custody” under Miranda on the same ground. It held that
none of his arguments was persuasive in light of the fact that
Smith had been told repeatedly that he was not under arrest.
This is not the law. A police officer cannot transform a
clearly custodial interrogation into a non-custodial
interrogation simply by telling a suspect that he is “not under
arrest.” Such a rule would render Miranda a dead letter.

    The California courts (and the California police
academies) have interpreted California v. Beheler, 463 U.S.
1121, as authorizing such a rule. But Beheler does no such
thing. In Beheler, the defendant had gone to the police
                       SMITH V. CLARK                        19

station voluntarily “although the police specifically told [him]
that he was not under arrest.” 463 U.S. at 1122. He spoke to
police officers for 30 minutes and then returned home. Id.
He later challenged his statement as obtained in violation of
Miranda, and the California Court of Appeal agreed,
concluding that Beheler had been “in custody” during the
interview. Id. at 1123. The Supreme Court reversed. It held
that the case was indistinguishable from Mathiason, 429 U.S.
492, in which a defendant had voluntarily gone to the police
station and given a short interview. Id. at 1123–24. The
Court did not rely on — indeed, did not even mention, except
in its initial discussion of the facts — the fact that Beheler
had been told he was not under arrest.

    The bright-line rule on which the Court of Appeal relied
in this case finds no support in Beheler, nor in any other
Supreme Court case. The cases that tell us what it means to
be “in custody” under Miranda instruct us to consider all of
the relevant circumstances in making that determination. See
Fields, 132 S. Ct. at 1189; Alvarado, 541 U.S. at 663;
Thompson, 516 U.S. at 112. And Beheler, rather than
announcing or applying a new rule, applied the same
“totality-of-the-circumstances” rule described in these later
cases. See 463 U.S. at 1125. Because the Court of Appeal
“applie[d] a rule that contradicts the governing law set forth
in [Supreme Court] cases,” its judgment was “contrary to”
clearly established federal law, see Williams v. Taylor,
529 U.S. 362, 405 (2000), and Smith’s petition for a writ of
habeas corpus should have been granted.

    Miranda rests on the proposition that “custody” is an
objective circumstance, something that courts can identify
after the fact by looking at a relatively small number of fixed
indicia. But the rule applied by the Court of Appeal allows
20                     SMITH V. CLARK

police to render these indicia irrelevant. Under the Court of
Appeal’s misreading of Beheler, “custody” is no longer an
objective inquiry. Police officers can easily manufacture a
finding that a suspect is not in “custody” — and thereby
evade Miranda — even when every coercive factor we
associate with custodial interrogation is present, and even
when (as here) the suspect clearly does not feel free to leave.
All they need to do is say the magic words: “You’re not
under arrest.”

    By permitting Smith’s conviction to stand, we effectively
allow the police to remove unwarned confessions from
Miranda’s reach by reciting a few short words. Nothing in
Miranda, in Beheler, or in any other case sanctions such an
unwise and unfair result.

                             ***

    This is a close case only because we are reviewing the
decision of the Court of Appeal on habeas, under the
deferential standard required by AEDPA. If this case had
come to us on direct review, it would be easy. I regret that
our court has declined to rehear this case en banc, but I
understand, given its procedural posture, my colleagues’
reluctance to do so.

    It may be that the only way to put a stop to “Beheler-ing,”
as practiced by the police in California and as tolerated by the
California state courts, will be to seek direct review by the
United States Supreme Court. I have little doubt what the
Court’s answer will be if the question is presented on direct
rather than on collateral review. The sooner we get that
answer the better.
                      SMITH V. CLARK                        21

CALLAHAN, Circuit Judge, and M. SMITH, Circuit Judge,
concurring in the denial of rehearing en banc:

    With all due respect to our dissenting colleague, we
disagree with his characterization of the state appellate
court’s decision, description of the circumstances surrounding
Jovan’z Smith’s interview, and legal conclusions. Out of
fairness to all concerned, including the California jurists who
reviewed Smith’s case on appeal, we offer this concurrence
in response to his dissent.

                              I.

    In this case, the Miranda inquiry arises within the context
of habeas review under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). “An officer’s obligation to
give a suspect Miranda warnings before interrogation extends
only to those instances where the individual is ‘in custody.’”
United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). In
determining whether a suspect is in custody, “[t]wo discrete
inquiries are essential.” Thompson v. Keohane, 516 U.S. 99,
112 (1995). First, a court must determine “what . . .
circumstances surround[ed] the interrogation.” Id. Second,
a court must decide whether “a reasonable person [in those
circumstances would] have felt he or she was not at liberty to
terminate the interrogation and leave.” Id. “The custody
determination is objective and is not based upon ‘the
subjective views of the officers or the individual being
questioned.’” United States v. Bassignani, 575 F.3d 879, 883
(9th Cir. 2009); see also Stansbury v. California, 511 U.S.
318, 323 (1994).         Courts have identified numerous
circumstances to be pertinent in assessing the custody
question. See Howes v. Fields, 132 S. Ct. 1181, 1189 (2012);
Kim, 292 F.3d at 974.
22                     SMITH V. CLARK

    On direct appeals, Miranda claims present mixed
questions of law and fact that we review de novo. United
States v. Cazares, 788 F.3d 956, 979 (9th Cir. 2015). In this
case, however, we are bound by AEDPA. See Yarborough v.
Alvarado, 541 U.S. 652, 665 (2004) (applying AEDPA on
habeas review of a challenge based on Miranda). AEDPA
authorizes the grant of a state prisoner’s petition for a writ of
habeas corpus when the relevant state-court decision was
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). The
Court must “look to the last reasoned state court adjudication
on the merits of [Smith’s] Miranda claim, which was the
decision of the California Court of Appeal.” Thompson v.
Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013).

    A state court decision is “contrary to” federal law within
the meaning of § 2254(d)(1) if “the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court
on a question of law,” or “the state court confronts facts that
are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to [the
Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405
(2000). “Thus, the ‘contrary to’ prong requires a direct and
irreconcilable conflict with Supreme Court precedent.”
Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

     A state court decision is an “unreasonable application” of
Supreme Court precedent within the meaning of § 2254(d)(1)
if “the state court identifies the correct governing legal rule
from [the Supreme] Court’s cases but unreasonably applies it
to the facts of the particular state prisoner’s case,” or “the
                       SMITH V. CLARK                         23

state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to
a new context where it should apply.” Williams, 529 U.S. at
407. The Supreme Court has repeatedly emphasized that “‘an
unreasonable application of federal law is different from an
incorrect application of federal law.’” Harrington v. Richter,
131 S. Ct. 770, 785 (2011). “The deferential standard
imposed under AEDPA cloaks a state court’s determination
with reasonableness, so long as ‘fairminded jurists could
disagree’ as to whether a claim lacks merit.” Murray,
745 F.3d at 998 (quoting Alvarado, 541 U.S. at 664). Thus,
“a habeas court must determine what arguments or theories
supported or . . . could have supported[] the state court’s
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Harrington, 131 S. Ct. at 786.

    Importantly, state courts are given even “more leeway” in
cases like this one, where the rule applied is general in nature,
requiring a case-by-case assessment based on the totality of
the circumstances. Alvarado, 541 U.S. at 664. Emphasizing
the stringency of § 2254(d)(1), the Supreme Court has
cautioned that “even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.”
Harrington, 131 S. Ct. at 786; see also Lockyer v. Andrade,
538 U.S. 63, 75 (2003).

                               II.

    Our dissenting colleague believes that habeas relief
should have been granted for two reasons, which we address
in turn.
24                     SMITH V. CLARK

                               A.

    The dissent’s primary concern is that the state appellate
court applied “a bright-line rule that a suspect who has been
told repeatedly that he is ‘not under arrest’ is not ‘in custody’
under Miranda.” The dissent broadly states that all California
courts apply this bright-line rule rather than the “totality-of-
the-circumstances” test required by Miranda and its progeny.

    We disagree with the dissent’s characterization of the
state appellate court’s decision. While the court placed great
weight on the fact that Smith was repeatedly told he was not
under arrest, as the Supreme Court and we have done in
similar cases, it did not impose a “bright-line rule.” Nowhere
in its decision does the state appellate court set out a legal
standard that is contrary to the totality-of-circumstances test.
Rather, it correctly recites the two-part custody test: “First,
what were the circumstances surrounding the interrogation,
and second, given those circumstances, would a reasonable
person have felt he was not at liberty to terminate the
interview and leave.” People v. Smith, No. A125912, 2010
WL 4233298, at *2 (Cal. Ct. App. Oct. 27, 2010)
(unpublished).

    Nor does the state appellate court’s application of the
custody test belie a different standard. The state appellate
court’s decision set the stage of the interview and referenced
the video footage. The court mentioned several factors that
are indicative of custody, including how Smith was
summoned and brought to the police station, the removal of
Smith’s backpack and phone, aspects of the interview’s
surroundings, the duration of the questioning, and some
statements made during the interrogation.                Other
circumstances that were not mentioned by the state appellate
                      SMITH V. CLARK                        25

court may also weigh in favor of the view that Smith was in
custody, but a court is not required to list each such
circumstance in its unpublished decision. See Taylor v.
Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (“[S]tate courts
are not required to address every jot and tittle of proof
suggested to them, nor need they ‘make detailed findings
addressing all the evidence before [them].’”) (quoting Miller-
El v. Cockrell, 537 U.S. 322, 347 (2003)). Similarly, the state
appellate court was not required to marshal all countervailing
circumstances in order to deem the interview non-custodial.
The Supreme Court did not do so after mentioning numerous
coercive circumstances in its brief per curiam decision
reversing the California appellate court in California v.
Beheler, 463 U.S. 1121 (1983).

    If the state appellate court had created and applied a
“bright-line rule” instead of employing the totality-of-
circumstances test, it would have been unnecessary for the
court to have addressed all of these circumstances suggesting
custody. Moreover, the state appellate court did not
uniformly dismiss these circumstances based on the so-called
Beheler admonishments. For example, the court compared
the length of the interview with the length of interviews
previously found not to be custodial by the California
Supreme Court. Smith, 2010 WL 4233298, at *3 (“While the
interview was lengthy (about 3.5 hours to the point where
appellant began making incriminating statements), it was
similar in length to one where our Supreme Court found a
defendant not to be in custody. (Cf. People v. Leonard
(2007) 40 Cal. 4th 1370, 1400 [a defendant who was
questioned for 3.5 hours was not in custody].)”). The state
appellate court also addressed Smith’s argument that his
phone and backpack had been confiscated. The court found
that it was “far from clear whether the police took [the]
26                     SMITH V. CLARK

backpack.” Smith, 2010 WL 4233298, at *4. It concluded
that the importance of this circumstance was “minor,”
because, “[i]n any event, . . . nothing . . . would have
prevented [Smith] from simply asking that they be returned.”
Id. The state appellate court did not deem such coercive
circumstances to be irrelevant in light of the Beheler
admonishments. It found them “lessened by the fact that at
three different points during that questioning, appellant was
told that he was not under arrest.” Id. at *3.

    Thus, we disagree with the dissent’s argument that the
custody test employed by the state court was contrary to that
required by clearly established law. The state appellate court
invoked and then applied the totality-of-circumstances
custody test. Indeed, the dissent’s objection that the state
appellate court viewed the Beheler admonishments as
“virtually conclusive evidence” appears to concede that the
court did not apply a “bright line rule.”

    Even if we were to agree with the dissent’s
characterization of the state appellate court’s decision, which
we do not, relief must be denied. There is no clearly
established Supreme Court law that a Beheler admonishment
is not due significant weight in the custody test. Rather, the
Supreme Court and our court also “have consistently held that
a defendant is not in custody when officers tell him that he is
not under arrest and is free to leave at any time.” United
States v. Bassignani, 575 F.3d 879, 886 (9th Cir. 2009); see
also Howes, 132 S. Ct. at 1185 (“Most important,
[respondent] was told at the outset of the interrogation, and
reminded thereafter, that he was free to leave . . . .”); Beheler,
463 U.S. at 1122; Oregon v. Mathiason, 429 U.S. 492, 495
(1977); United States v. Crawford, 372 F.3d 1048, 1060 (9th
Cir. 2004) (en banc) (“Perhaps most significant for resolving
                      SMITH V. CLARK                      27

the question of custody, Defendant was expressly told that he
was not under arrest . . . .”); Dyer v. Hornbeck, 706 F.3d
1134, 1136–40 (9th Cir. 2013); United States v. Norris,
428 F.3d 907, 912 (9th Cir. 2005).

    Indeed, it is common sense to give significant weight to
the fact that a person was repeatedly told that he was not
under arrest in evaluating whether a reasonable person in his
circumstances would have thought himself to be under arrest.
The dissent paints a picture of California police officers
nefariously gaming the system by telling people that they are
not under arrest. But there is no better way to communicate
that a person is not under arrest than by telling him. As the
panel explained in its memorandum disposition and Judge
Watford elaborated in his concurrence, “[t]his is not to say
that an interrogation begun with a so-called ‘Beheler
advisement’ cannot become custodial as that interrogation
drags on and coercive circumstances accumulate.” Rather,
“on the facts presented, the state appellate court did not
unreasonably conclude that the custodial rubicon had not
been crossed by the time Smith first confessed, and thus the
prophylactic procedural measures adopted by the Supreme
Court in Miranda had not been triggered.”

                             B.

   For the reasons stated in our memorandum disposition,
we also disagree with the dissent’s view that the state court
unreasonably applied the custody test.

    We add that other circumstances that were not mentioned
by the state appellate court also weigh against the view that
Smith was in custody. For example, Smith was never
handcuffed. The door to the interview room was unlocked
28                     SMITH V. CLARK

and was at times left open, including during the time period
after the lie detector test had been administered. Although
Smith was brought from school to the police station by a
uniformed officer, that officer was a “youth services officer”
who was assigned to Vallejo High School, and thus her
presence was likely neither extraordinary nor particularly
intimidating. The interrogating detectives were dressed in
plain clothes and were courteous and relaxed for the
substantial majority of the interview. Smith left the interview
room once during the pre-Miranda interview, albeit only for
about 1 minute and 20 seconds. Smith was given three breaks
during the pre-Miranda interview, during which he was left
alone in the room for 40, 2, and 20 minutes. While left alone,
Smith can be seen on the videotape practicing for the
interview, which may be interpreted as evidence that Smith
deliberately remained at the station in order to dispel
suspicion of him. Smith signed forms consenting to the lie
detector test and to the search of his room for the clothes he
was wearing at the time of the incident. As the state appellate
court noted, the California Supreme Court has “ruled that
someone who had signed such a statement would understand
that he was not in custody.” Smith, 2010 WL 4233298, at *3
(citing People v. Ochoa, 19 Cal. 4th 353, 402 (1998)).

    Additionally, after Detective Pucci administered the lie
detector test, he shook Smith’s hand and stated, “If I don’t get
a chance to see you again, good luck to you, and I hope
everything works out for you, alright.” He then handed Smith
his card and stated “You got any questions, concerns about
anything, that’s my desk number there. Alright?” A
reasonable person would view this interaction as an indication
that Smith was free to leave. At the very least, the state
court’s determination that a reasonable person would feel free
to leave was not objectively unreasonable.
                           SMITH V. CLARK                                29

    Furthermore, we cannot agree with the dissent’s statement
of some facts. Most notably, we cannot conclude that the
state appellate court was of the mistaken view that Smith was
told three times that he was “free to go.” We know that
Smith’s second advisement that he was not under arrest was
accompanied by a statement that he was “free to go,” but that
his third advisement that he was not under arrest did not
include such a statement. Although the record does not
indicate exactly what Smith was told when he was
approached at school, the state appellate court opined that
Smith was told that “he was not under arrest and [was] asked
whether he was willing to go to the police station to answer
some questions.” Smith, 2010 WL 4233298, at *1.1
Regardless of how each advisement is characterized, this
counting exercise is of no consequence, as the state appellate
court was not objectively unreasonable in viewing the three
advisements that Smith was “not under arrest” as having
conveyed messages that Smith was free to go.

    We also note that Smith and the dissent overstate how
much several factors weigh in favor of the view that Smith’s
pre-warning confession was custodial. Although the pre-
warning interrogation was long, we cannot conclude on
AEDPA review that it was “a marathon session designed to
force a confession.” Bassignani, 575 F.3d at 886 (quotation
marks omitted); cf. Dyer, 706 F.3d at 1136 (nearly four-hour
nighttime interrogation). While Smith was brought to the
police station in a police car, he joined the officer voluntarily
and had a friendly conversation along the way. See Beheler,


 1
    Indeed, the state appellate court’s specific discussions of the first and
third advisements demonstrate that, notwithstanding a prefatory sentence
suggesting otherwise, the court was not under the impression that Smith
was told he was free to go three times.
30                        SMITH V. CLARK

463 U.S. at 1122; Mathiason, 429 U.S. at 495 (“He came
voluntarily to the police station . . . .”); Crawford, 372 F.3d
at 1059 (emphasizing that the defendant “agreed to
accompany” the officers). And while the accusatory nature
of an interview is an important circumstance to consider,
Smith’s interrogation did not become custodial simply
because the officers questioned Smith’s veracity, confronted
him with evidence of his guilt, and promised leniency. See
Mathiason, 429 U.S. at 493 (officers told suspect that his
fingerprints had been found at the scene and that “his
truthfulness would possibly be considered by the district
attorney or judge”); Stansbury, 511 U.S. at 325 (telling a
person he is a “prime suspect” does not necessarily mean he
is under arrest because “some suspects are free to come and
go until the police decide to make an arrest”).2 Indeed, the
detectives generally questioned Smith in a friendly, courteous
tone, and their posture was relaxed. At one point, Smith can
be seen laughing and joking with Detective Pucci about
mutual acquaintances. The officers also permitted Smith to
give narrative answers and “appealed to his interest in telling
the truth and being helpful.” Alvarado, 541 U.S. at 664. A
fairminded jurist could view many statements that Smith
labels as implicit threats and promises as explanations of the
importance of truth and as explaining the differences between
an intentional and a negligent act.




   2
       The Supreme Court has explained that “[a]ny interview of one
suspected of a crime by a police officer will have coercive aspects to it,
simply by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be charged
with a crime. But police officers are not required to administer Miranda
warnings to everyone whom they question.” Mathiason, 429 U.S. at 495.
                            SMITH V. CLARK                              31

    We recognize that the state appellate court did not address
Detective Pucci’s comment that Smith could not “leave the
room lying bro.” But the comment appears to have been
directed at Smith’s claim that he changed the channel on the
television to watch cartoons with the baby, which the
detectives said was inaccurate.3 A fairminded jurist could

 3
     As explained by the district court, the exchange was as follows:

          D. MUSTARD: You didn’t change the station.

          SMITH:             Huh?

          D. MUSTARD: You didn’t change the station.

          SMITH:             I did change the station.

          D. MUSTARD: You did not change the station. I
                      just was at the house and do you
                      know what channel the TV is on –
                      BET.

          SMITH:             She turned – I did turn the station. I
                             had a remote. I turned it.

          D. MUSTARD: You didn’t turn the station Javon’z.
                      [sic.]

          D. PUCCI:          Hey . . .

          D. MUSTARD: Don’t lie man.

          D. PUCCI:          . . . Just . . .

          D. MUSTARD: You can’t leave this room lying bro.

          D. PUCCI:          . . . What happened out there man?
                             Just tell me did the baby do
                             something? Was there some
32                         SMITH V. CLARK

conclude that a reasonable person would not have interpreted
this statement literally, particularly in the context of the
previous advisements that Smith was not under arrest.
Instead, the statement could fairly be viewed as an appeal to
the importance of truth.

    Additionally, we note that the state appellate court
acknowledged that Detective Pucci’s third advisement that
Smith was not under arrest was less than clear. But the court
concluded that to the extent that Detective Pucci’s advisement
was ambiguous in context, notwithstanding the previous
advisement that Smith was free to go, a reasonable person
would have asked for clarification. Smith did not ask for
clarification and did not seek to leave after the lie detector
test was administered. We cannot conclude that the state
appellate court’s view was objectively unreasonable.

    We acknowledge that this is a close case. Perhaps there
are other circumstances, beyond those mentioned by Smith,
the dissent, and the state appellate court, that weigh in favor
of the view that Smith was in custody. But on AEDPA
review, “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington,
131 S. Ct. at 786. The list of decisions reversing us for
ignoring this rule is long.4 As the panel, district judge, and


                            circumstance behind this whole
                            thing?

         SMITH:             No.
 4
   See, e.g., Davis v. Ayala, 135 S. Ct. 2187, 2202 (2015) (faulting us for
having “misunderstood the role of a federal court in a habeas case”);
Harrington, 131 S. Ct. at 785 (reversing us and explaining that “even a
strong case for relief does not mean the state court’s contrary conclusion
                          SMITH V. CLARK                             33

magistrate all agreed, a fairminded jurist could hold, as did
the three judges on the state court of appeal, that Smith was
not in custody when he first confessed to killing the baby.
That compels a denial of relief under AEDPA.




was unreasonable”); Alvarado, 541 U.S. at 665 (reversing us and
explaining we were “nowhere close to the mark” in concluding that a state
court unreasonably applied the custody test); Lockyer, 538 U.S. at 75
(reversing us for “fail[ing] to give proper deference to state courts by
conflating error (even clear error) with unreasonableness”).
