Antwion Thompson v. D. Runnel

Opinion by Judge IKUTA; Concurrence by Judge GOODWIN; Dissent by Judge BERZON.

OPINION

This appeal requires us to determine whether the California Court of Appeal unreasonably applied “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254 (d)(1), when it denied Antwion Thompson’s motion to suppress his multiple confessions to the murder of his girlfriend. To resolve this issue, we must first determine whether we measure the state court’s opinion against Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), which was decided before the California Court of Appeal issued its opinion, or Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), which was decided after that date. In light of the Court’s recent decision in Greene v. Fisher, — U.S. -, 132 S.Ct. 38 , 181 L.Ed.2d 336 (2011), which unanimously held that clearly established law must be assessed as of the time of the final state court adjudication on the merits, id. at 44 , we hold that Elstad is the relevant Supreme Court precedent. Because the California Court of Appeal reasonably applied Elstad in holding that Thompson’s confessions were admissible,…

dissenting:

The original panel opinion analyzed Thompson’s habeas petition under Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), the case that both parties assumed was “clearly established Federal law” for purposes of 28 U.S.C. § 2254 (d)(1) in this appeal. Only after the respondent (whom I refer to as the “State”) lost in the panel’s original decision did the State first advance the argument that Seibert was not the relevant precedent under § 2254(d)(1). The majority now holds that despite the State’s extraordinary delay in raising that argument, the argument was neither forfeited nor waived. Maj. Op. at 1097-1100. Because the majority misapplies the Supreme Court’s recent decisions on waiver and for *1102 feiture in the habeas context and upends the fundamental principle of civil litigation that litigants are ordinarily expected to raise open questions if they want them decided, I respectfully dissent.

I

I begin by describing the magnitude of the State’s delay before making the about-face in its litigation strategy that the majority now excuses.

A

At the time the State filed its brief in July 2009, this court’s cases contained contradictory…

specially concurring:

A strict adherence to 28 U.S.C. § 2254 (AEDPA) compels me to conclude that the California courts did not unreasonably apply clearly established Supreme Court law in following Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) instead of Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). The two scholarly opinions written by my colleagues in this persistent appeal demonstrate that the present law on the validity of two-stage custodial interrogation is far from “clearly established.”

In 1966, as a state appellate judge, I learned from the United States Supreme Court that voluntary confessions obtained by police interrogation could no longer be used by state prosecutors unless the confession survived Miranda scrutiny. For the next 46 years, as a state and federal judge, reading trial records and judicial opinions about “voluntary” confessions obtained by custodial interrogations, I learned how law- enforcement behavior evolves and that even the Supreme Court can change its position on interrogation strategy.

The “GVR” that brings this panel back to Mr. Thompson’s two-stage confession requires us to re-examine the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTWION E. THOMPSON , No. 08-16186 Petitioner-Appellant, D.C. No. v. 5:05-cv-01264- JF D. L. RUNNELS, Warden; ATTORNEY

GENERAL’S OFFICE ,

Respondents-Appellees.* OPINION

Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted May 11, 2012—Pasadena, California

Filed January 24, 2013

Before: Alfred T. Goodwin, Marsha S. Berzon, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Concurrence by Judge Goodwin; Dissent by Judge Berzon

* The caption has been updated to correct the spelling of Runnels’s name. THOMPSON V . RUNNELS

SUMMARY**

Habeas Corpus

Affirming the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challenging the admission of petitioner Thompson’s confessions to the murder of his girlfriend, the panel held that the state court reasonably denied relief based on Oregon v. Elstad, 470 U.S. 298 (1985), which was clearly established law as of the time of the final state court…