Thompson

Order; Dissent to Order by Judge CALLAHAN; Opinion by Judge BERZON; Dissent by Judge IKUTA.

ORDER

Judge Goodwin and Judge Berzon voted to deny the petition for rehearing. Judge Berzon voted to deny the petition for rehearing en banc, and Judge Goodwin so recommended. Judge Ikuta voted to grant the petition for rehearing and the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35.

The majority opinion and dissent filed in this case on September 8, 2010 are withdrawn. The opinion and dissent filed with this order replace the withdrawn opinion and dissent.

The petition for rehearing and the petition for rehearing en banc are DENIED.

CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, GOULD, TALLMAN, BYBEE, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Antwion Thompson killed his girlfriend and he admitted that he had done so both before and after he was given Miranda warnings. Indeed, after…

dissenting:

Petitioner Antwion Thompson voluntarily confessed to murdering his girlfriend. He confessed at the police station the day the murder was committed, and again the next day when he reenacted the crime on videotape for police at the victim’s house. On these two occasions, Thompson was advised of his Miranda rights and voluntarily waived those rights. Though these warned confessions were preceded by a period of unwarned questioning, there is no legal basis to exclude them from the jury’s consideration here. See Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004); Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985). I respectfully dissent from the majority’s decision to grant Thompson’s habeas writ.

*803 I

On federal habeas review, the facts found by the state court are presumed to be correct, unless the petitioner can overcome the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1) (2006). Here, Thompson does not challenge the state court’s factual findings, and therefore we must adopt those findings as true in reviewing Thompson’s writ. Despite this rule, the majority opinion sets forth an…