NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO FIGUEROA, No. 19-55217

Petitioner-Appellant, D.C. No. 5:15-cv-01119-SVW-SP v.

CLARK E. DUCART, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 3, 2021 Pasadena, California

Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.

Roberto Figueroa appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his conviction for first-degree murder. A jury

convicted Figueroa, then 20 years-old, as an aider and abettor to the murder of an

individual who disrespected an associate of West Side Verdugo, the gang to which

Figueroa was connected. The murder was accomplished by a shooting, and the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. victim was a member of a different gang. The shooter, a member of still another

gang, wanted entry to the West Side Verdugo gang and a way of accomplishing

that was to murder a person in the presence of a West Side Verdugo member. The

shooter used a gun provided by Figueroa, who was present at the time of the

shooting.

This appeal concerns Figueroa’s unsuccessful attempt to suppress a

statement he gave police during an interrogation. One day after the shooting,

Figueroa was interviewed by two detectives for seven-and-a-half hours, ending at

3:12 am. Figueroa contends that his statements were admitted in violation of his

Miranda rights, or else the waiver of his Miranda rights was involuntary. The

California Court of Appeal’s decision—the last-reasoned decision for purposes of

habeas corpus review, see Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)—held

that: (1) Figueroa was not in custody at the time he gave the allegedly coerced

statements, meaning that Miranda did not apply; (2) the waiver of his Miranda

rights was valid; and (3) his due process rights were not violated through a coerced

confession. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we

affirm.

We review a district court’s denial of a habeas corpus petition de novo.

Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir. 2010). Because Figueroa’s habeas

corpus petition is governed by the Antiterrorism and Effective Death Penalty Act

2 of 1996 (“AEDPA”), Figueroa must show that the state court’s adjudication of his

claim “was contrary to, or involved an unreasonable application of, clearly

established Federal law,” as established by the Supreme Court, or “was based on

an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Under AEDPA,

“[a] state court’s determination that a claim lacks merit precludes federal habeas

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. Figueroa contends that the state court should have suppressed his

statements to the detectives because he was interrogated in violation of his

Miranda rights. It is clearly established federal law that “a person questioned by

law enforcement officers after being ‘taken into custody or otherwise deprived of

his freedom of action in any significant way’ must first” be warned of his rights.

Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda v. Arizona,

384 U.S. 436, 444 (1966)). The state court determined that Figueroa was not in

custody during the interrogation, and therefore Miranda did not apply. Whether

that ruling was contrary to or an unreasonable application of federal law is a close

call, but keeping in mind AEDPA’s exacting standards, we affirm.

To determine whether a defendant was in custody, courts ask “first, what

were the circumstances surrounding the interrogation; and second, given those

3 circumstances, would a reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112

(1995). The state court analyzed thirteen factors in making this inquiry, including,

among others, whether the police initiated the contact; whether officers told the

person that he was free to terminate the interview or whether the person’s conduct

indicated an awareness of such freedom; and whether there were restrictions on the

person’s freedom of movement during the interview. Such factors are analogous to

those discussed in controlling Supreme Court cases. E.g., Howes v. Fields, 565

U.S. 499, 509 (2012).

The state court concluded that a reasonable person in Figueroa’s situation

would feel free to leave because the detectives “repeatedly reminded” him that the

door was unlocked and invited him to “freely leave the room to use the restroom.”

The state court acknowledged that the lengthy duration of the interview (almost

eight hours), the location of the interview (the police stationhouse), and the fact

that the detectives confronted Figueroa with evidence against him weighed toward

a finding of custody, but in view of the totality of the circumstances, the court

concluded he was not in custody.

Figueroa contends that the state court’s decision on custody was

unreasonable because it did not address the fact that Figueroa was told he failed a

polygraph test. According to Figueroa, a reasonable person would not feel free to

4 terminate an interview once the suspect knows that the police believe he has lied.

Though the post-polygraph interview was significantly more accusatory, the

detectives again reminded Figueroa that the door was unlocked. Figueroa was also

told during the post-polygraph section of the interrogation that he could leave the

interrogation room to go to the restroom. See Dyer v. Hornbeck, 706 F.3d 1134,

1140–41 (9th Cir. 2013). Even if we could have or would have weighed these

custody factors differently on direct appeal, we are not permitted to reweigh the

evidence before the state court on federal habeas corpus review. See Richter, 562

U.S. at 101 (“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.” (citation omitted)); Wood v. Allen, 558 U.S.

290, 301 (2010) (“[A] state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different conclusion in the

first instance.”). We conclude that “fairminded jurists could disagree” as to

whether Figueroa was in custody. Yarborough, 541 U.S. at 664. We thus hold that

the state court’s custody determination was not objectively unreasonable.1

2. Figueroa also contends that even if he was not in custody until he was

read Miranda warnings, his subsequent waiver of those rights was involuntary, or

his statements throughout that interrogation were coerced in violation of his due

1 Because we conclude that the state court’s custody determination was not unreasonable under AEDPA, we do not address whether any error would be harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).

5 process rights. Neither contention is persuasive. A valid waiver of Miranda rights

must be knowing, intelligent, and voluntary. See Miranda, 384 U.S. at 475. In

determining voluntariness, we ask “‘whether a defendant’s will was overborne’ by

the circumstances surrounding the giving of a confession.” Dickerson v. United

States, 530 U.S. 428, 434 (2000) (citation omitted). Here, the state court

recognized Figueroa’s age, the fact that he had not taken his prescribed medication,

and his recent hospitalization. The court still found his actions and statements

voluntary given Figueroa’s experience with the police from his previous arrests,

his apparent relaxed demeanor, and his statements that he had lied to the police

about a previous crime. See Yarborough, 541 U.S. at 668. Because we conclude

that the state court’s determination on voluntariness is not objectively unreasonable

under AEDPA, we affirm the district court’s denial of habeas relief.

AFFIRMED.

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