Adrian Reyes v. Greg Lewis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN REYES, No. 12-56650 Petitioner-Appellant, D.C. No. v. 5:12-cv-00691-GAF-E

GREG LEWIS, Warden, Respondent-Appellee. ORDER AND

AMENDED OPINION

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

Argued and Submitted November 19, 2014 Pasadena, California

Filed August 14, 2015 Amended August 17, 2016

Before: William A. Fletcher and Jay S. Bybee, Circuit Judges, and James K. Singleton, Senior District Judge.*

* The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for the District of Alaska, sitting by designation. Order; Concurrence in Order by Judge W. Fletcher; Dissent to Order by Judge Callahan; Dissent to Order by Judge Bea; Opinion by Judge W. Fletcher; Concurrence by Judge Singleton

REYES V. LEWIS

SUMMARY**

Habeas Corpus

The panel issued an order replacing the opinion filed August 14, 2015, with an amended opinion, and rejecting an en banc call, in a case in which the…

concurring in the denial of rehearing en banc, joined by Judge BYBEE. Judge SINGLETON may not vote on petitions for rehearing en banc, but he agrees with what is written here.

We make four points in response to Judge CALLAHAN’S dissent from the denial of the petition for rehearing en banc.

First, the dissent begins:

Dissent at 1004.

An unsuspecting reader might conclude that Reyes was not in custody when he “first confessed,” and that his first confession was therefore not taken in violation of Miranda. The reader would be mistaken. The California Court of Appeal explicitly held to the contrary. It wrote:

People v. Reyes, No. D047521, 2010 WL 3026227 , at *7 (Cal. Ct. App. Aug. 4, 2010).

Second, the dissent contends that Justice Kennedy’s concurrence in Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), does not provide the controlling test in two-step interrogation cases. We first concluded in 2006 that Justice Kennedy’s concurrence provides the controlling test. See United States v. Williams, 435 F.3d 1148 (9th Cir. 2006). Of the seven circuits that have addressed the issue, six agree with us. See United States v. Capers, 627 F.3d 470, 476 (2d…

with whom, O’SCANNLAIN, TALLMAN, BE A, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Fifteen-year-old Adrian Reyes confessed to killing sixteen-year-old Derek Ochoa in a drive-by shooting. He first confessed after acknowledging many times that he was not under arrest and was not required to talk, freely leaving two previous police interviews, taking a polygraph that he and his parents not only consented to but that Reyes initially suggested, and then asking to speak with detectives. After Reyes confessed, those detectives drove him to another location where they told him that he was no longer free to leave and read him his Miranda rights. He again confessed. A jury found Reyes guilty of first-degree murder. The state appellate court affirmed, the California Supreme Court denied Reyes’s petition for review, and the U.S. Supreme Court denied certiorari. In a supreme display of Ninth Circuit legerdemain, the panel majority reviewed de novo, found that Reyes’s confession was obtained in violation of Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 169 L.Ed.2d 643 (2004), and thus reversed the district court’s denial of habeas relief. The panel…

*1002 Concurrence in Order by Judge W. FLETCHER;

Dissent to Order by Judge CALLAHAN;

Dissent to Order by Judge BEA;

Concurrence by Judge SINGLETON

ORDER

The opinion filed August 14, 2015, and reported at 798 F.3d 815 , is hereby amended, and is replaced by the Amended Opinion attached hereto.

A judge requested a vote on whether to rehear the case en banc. The case failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R. App. P. 35.

Future petitions for panel rehearing or rehearing en banc will not be entertained.

with whom O’SCANNLAIN, Circuit Judge, joins as to paragraphs 1 and 4, dissenting from the denial of rehearing en banc:

1. I join Judge Callahan’s dissent from the denial of rehearing en banc.

2. I write separately to reiterate my view that United States v. Davis, 825 F.3d 1014 (9th Cir.2016) (en banc), was wrongly decided. As I explained in my Davis dissent, id. at 1032-37 (Bea, J., dissenting), Marks v. United States, 430 U.S. 188 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977), requires that we apply a “results-based” approach, not a “reasoning-based” approach, when interpreting splintered Supreme Court decisions.

3. Had my view commanded a majority of the Davis en banc Court, I would likely agree with the panel that Justice Kennedy’s concurring opinion in Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), provides a controlling rule. In my Davis dissent, I cited with approval United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir. 2006), which applied a results-based approach and concluded that “both the [Seibert] plurality and Justice Kennedy agree that where law enforcement officers deliberately employ a two-step interrogation to obtain a confession…

District Judge, concurring:

The majority has joined in a thoughtful and thorough judgment in this case. I concur in that judgment. The majority has forcefully marshaled the facts and analyzed the applicable law. If this case had arisen entirely within the federal system, e.g., under 28 U.S.C. § 2255 , I would fully join in the opinion and have no further comments or suggestions.

This case does not arise entirely within the federal system, however, but comes to us from state court under § 2254, and thus our review must be guided by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires us to give deference to decisions of the state courts both as to the facts and the law, except in limited circumstances.

The majority identifies Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), as clearly established federal law at the time the California Court of Appeal decided this case and looks to Justice Kennedy’s concurring opinion to provide the appropriate rule of decision. I agree. See United States v. Williams, 435 F.3d 1148, 1157-59 (9th Cir. 2006) (analyzing Seibert and concluding that Justice Kennedy’s opinion is the narrowest…