                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 21 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARIE ROBERT REDEKER,                             No.   17-16917

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-00397-APG-GWF
 v.

D. W. NEVEN; ATTORNEY GENERAL                    MEMORANDUM*
FOR THE STATE OF NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                     Argued and Submitted February 14, 2019
                            San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.

      Petitioner Arie Redeker was convicted in Nevada state court of second

degree murder and now appeals the district court’s denial of his habeas petition

after it found Redeker was not in custody for the purposes of a possible Miranda




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violation, and that even if Redeker had been in custody, he failed to establish any

constitutional violation.

      As a preliminary matter, the Government argues that the Nevada Supreme

Court’s decision was entitled to deference under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). We need not decide that issue because the

district court, exercising de novo review, decided there was no custodial

interrogation, so the standard of review is not material in this case. Also, we need

not decide whether Redeker was in custody during the hours he spent in his front

yard as argued by Redeker, or under arrest in the police station, as urged by the

dissenting opinion in the Nevada Supreme Court, because even assuming there was

a Miranda violation before Redeker was given his Miranda rights, there was no

prejudice.

      Redeker voluntarily admitted to the crime after being administered his

Miranda warnings. Detective Hardy took the necessary steps to ensure that

Redeker understood the import and effect of the Miranda warning. See Missouri v.

Seibert, 542 U.S. 600, 622 (2004) (Kennedy, J., concurring); see also United States

v. Williams, 435 F.3d 1148, 1157–58 (9th Cir. 2006) (holding that Justice

Kennedy’s concurring opinion sets forth the controlling rule in Seibert). Redeker’s

unambiguous, affirmative answers demonstrate he recognized the import and effect


                                          2
of the Miranda warning. See Reyes v. Lewis, 833 F.3d 1001, 1027 (9th Cir. 2016).

Thus, the district court correctly concluded that Redeker’s post-Miranda

statements were admissible because Detective Hardy did not deliberately withhold

the Miranda warning, and Redeker voluntarily admitted to the crime. See

Williams, 435 F.3d at 1158.

      AFFIRMED.




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