Thomas Andrew Winter v. A. K. Scribner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ANDREW WINTER,
Petitioner - Appellant,
v.
A. K. SCRIBNER,
Respondent - Appellee.
No. 13-15513
D.C. No. 2:05-cv-00543-KJM-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted May 14, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
Petitioner Thomas Andrew Winter appeals the district court’s denial of his
petition for habeas corpus. See 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(a), and we affirm.
FILED
MAY 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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1. Winter first argues that the state court unreasonably applied Miranda
v. Arizona, 384 U.S. 436 (1966), in holding that custody did not attach until Winter
made his second oral request to leave the police interrogation and that Winter’s
statements made before that point were therefore admissible. The state court
identified the correct legal standard for determining the point of custody when it
inquired whether “there was a restraint of person similar to an arrest, and . . .
whether, viewed objectively, a reasonable person would have felt free to leave.”
See Yarborough v. Alvarado, 541 U.S. 652, 662–65 (2004). When asked, Winter
voluntarily agreed to go to the station to answer some questions. Moreover, he was
advised that he was not under arrest and was free to leave. In light of these facts,
the state court’s determination that Winter was not in custody until the officers
ignored his second request to leave was neither contrary to nor an unreasonable
application of Supreme Court precedent, nor an unreasonable determination of the
facts in light of the evidence. See 28 U.S.C. § 2254(d). Winter is therefore not
entitled to relief on this claim.
2. Winter next argues that the state court’s determination that the trial
court properly admitted his post-Miranda statements constituted an unreasonable
application of Oregon v. Elstad, 470 U.S. 298 (1985). We disagree. Under the
rule set forth by the Supreme Court in Elstad, “a suspect who has once responded
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to unwarned yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda warnings.” Id.
at 318. Winter’s arguments that the officers in this case deliberately delayed
giving him warnings and exploited his pre-Miranda statements appear to rest on
Missouri v. Seibert, 542 U.S. 600, 621–22 (2004) (Kennedy, J., concurring). But
Seibert does not govern this case because it had not yet been issued when the state
court decided Winter’s case and, accordingly, was not the clearly established
federal law. See Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.), cert.
denied, 134 S. Ct. 234 (2013). Elstad, which was the governing case at the time,
does not clearly prohibit the admission of post-Miranda statements where officers
use a defendant’s pre-Miranda statements to aid their post-Miranda interrogation.
3. Winter also argues that his confession was not admissible because his
statements were coerced. The state court determined that the interrogation was not
coercive. This determination was neither contrary to nor an unreasonable
application of clearly established federal law, nor was it an unreasonable
determination of the facts in light of the evidence. Harrington v. Richter, 131 S.
Ct. 770, 786 (2011). Accordingly, Winter is not entitled to habeas relief on this
ground.
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4. Finally, we reject Winter’s argument that the state court unreasonably
determined that Winter did not unequivocally invoke his right to remain silent.
Neither Winter’s: (1) inquiries as to whether he could leave; (2) requests to speak
with his mother; nor (3) statements indicating “that’s all I have to say on the whole
thing” so clearly invoked his right to remain silent that the state court’s
determination to the contrary may be deemed unreasonable.
AFFIRMED.
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