                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           SEP 06 2013

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

MICHELLE ELIZABETH JONES,                        No. 09-56503

              Petitioner-Appellant,              D.C. No.
                                                 5:08-cv-01318-VAP-FMO
  v.

MARY LATTIMORE, Warden,                          MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                       Argued and Submitted August 7, 2013
                               Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
District Judge.**

       Michelle Elizabeth Jones appeals from the denial of her petition for a writ of

habeas corpus. Jones argues that her un-Mirandized interview with police should


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
have been suppressed, and that a second Mirandized interview that took place not

long afterwards should also have been suppressed under the rule of Missouri v.

Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

      We review the district court’s denial of Jones’ petition de novo. Cudjo v.

Ayers, 698 F.3d 752, 761 (9th Cir. 2012). Under the Antiterrorism and Effective

Death Penalty Act (AEDPA), habeas relief from a state court conviction must be

denied “unless it is shown that the earlier state court’s decision was contrary to

federal law then clearly established in the holdings of [the Supreme Court]; or that

it involved an unreasonable application of such law; or that it was based on an

unreasonable determination of the facts in light of the record before the state

court.” Harrington v. Richter, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011)

(internal quotation marks and citations omitted).

      Miranda warnings are due “only when a suspect interrogated by the police is

‘in custody.’” Thompson v. Keohane, 516 U.S. 99, 101, 116 S. Ct. 457, 460, 133

L. Ed. 2d 383 (1995). In determining whether a suspect is in custody, “[t]wo

discrete inquiries are essential . . . : first, what were the circumstances surrounding

the interrogation; and second, given those circumstances, would a reasonable

person have felt he or she was not at liberty to terminate the interrogation and


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leave.” Id. at 112 (footnote omitted). “[T]he initial determination of custody

depends on the objective circumstances of the interrogation.” Stansbury v.

California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994).

      We review the last reasoned state court decision, a decision by the California

Court of Appeal. Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). That

court, citing, inter alia, Thompson and Stansbury, held that Jones was not in

custody during her first interview. The court applied the correct Supreme Court

precedent. We hold that its application of that precedent was reasonable.

      During the first interview, Jones was informed by her sole interviewer,

Sergeant Richard Zerkel, that she was not under arrest, was not required to speak to

him, was free to take breaks, and was free to leave the interview. Jones

nevertheless contends that a reasonable person would not have felt free to leave

during the interview. She notes that the interview took place after her co-defendant

had been arrested (albeit initially for unrelated reasons), that Zerkel approached

Jones to request an interview, that she was then brought to the police station in

Zerkel’s car to begin the interview, and that the interview lasted approximately

three hours.

      In Yarborough v. Alvarado, the Supreme Court upheld a state court

determination that the respondent, a juvenile, was not in custody during his two-


                                          3
hour interview, despite the fact that he was dropped off at the police station by his

parents at police request and was not told that he was free to leave. 541 U.S. 652,

656, 663-66, 124 S. Ct. 2140, 2145, 2149-50, 158 L. Ed. 2d 938 (2004). Under

Yarborough, a court could reasonably hold that Jones was not in custody during

her interview.

      Jones argues that she confessed to a number of crucial facts during the

course of her interview, and that no suspect would reasonably feel they were free

to leave after doing so. We need not determine whether this argument would have

merit were we writing on a clean slate. No Supreme Court case has held that a

suspect who makes a significant confession during an interview must then be

considered in custody. The decision of the California Court of Appeal was, at the

least, a reasonable application of Supreme Court precedent, and that is all that

AEDPA requires.

      Additionally, considering the totality of the circumstances, see Withrow v.

Williams, 507 U.S. 680, 693, 113 S. Ct. 1745, 1754, 123 L. Ed. 2d 407 (1993),

Jones’ statements during her first interview were voluntary.

      Since Jones was not in custody during her first interview, the second

interview could not have constituted a deliberate two-step interrogation in violation

of the governing holding of Seibert. See United States v. Williams, 435 F.3d 1148,


                                           4
1157-58 (9th Cir. 2006). Finally, Jones’ relinquishment of her Miranda rights

during her second interview was both knowing and voluntary. See Moran v.

Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1140-41, 89 L. Ed. 2d 410 (1986).

      AFFIRMED.




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