FILED
NOT FOR PUBLICATION AUG 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT C. BURLEW, No. 09-17788
Petitioner - Appellant, D.C. No. 2:08-cv-02009-LKK-
CHS
v.
A. HEDGPETH, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted May 9, 2011
San Francisco, California
Before: HUG and PAEZ, Circuit Judges, and O’GRADY, District Judge.**
Petitioner-Appellant Robert C. Burlew, a state prisoner, appeals the district
court’s denial of his habeas petition. We have jurisdiction under 28 U.S.C. §§
1291, 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Liam O’Grady, United States District Judge for the
Eastern District of Virginia, sitting by designation.
We review de novo the district court’s denial of a habeas petition. Schell v.
Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). Burlew’s habeas petition is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
the AEDPA, we must determine whether the state court proceedings “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
Burlew argues that the state court unreasonably applied clearly established
federal law in concluding that his constitutional rights were not violated by the
admission of his incriminating statement that he “thought maybe [the items in his
trunk] were [stolen] and [that] he was moving them or helping someone move
them.” It is clearly established federal law that incriminating statements made
during custodial interrogation are not admissible against a criminal defendant
unless the defendant was made aware of his rights to silence and counsel before
voluntarily speaking. Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).
“[C]ustodial interrogation” means “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Id. at 444. To determine whether an
individual was “in custody,” the state court must examine all of the circumstances
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surrounding the questioning and decide “whether there [was] a formal arrest or
restraint on freedom of movement of the degree associated with formal arrest.”
California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (internal quotation
marks omitted). Using this framework, the state court must ask whether a
reasonable person in the defendant’s situation “would have felt free to terminate
the interview and leave.” Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).
It is undisputed that Burlew’s statement was made in response to a direct
question from Officer James Beaupre while Burlew was sitting in the back of
Beaupre’s patrol car. At the time Burlew made his statement, he was not
handcuffed and had not been informed that he was under arrest. Although the
question is close, the state court did not unreasonably apply federal law in
concluding that Burlew was not “in custody,” at the moment he was questioned.
The fact that Burlew was not handcuffed, coupled with the fact that Beaupre’s
interaction with Burlew was nonconfrontational, weighs against a custody
determination. See id. at 644 (noting that the “interrogation environment” is a
factor in the custody determination). We also note that we and our sister circuits
appear to be split on the issue of whether a defendant is “in custody” when he is
detained in the back of a police car. Compare United States v. Henley, 984 F.2d
1040, 1042 (9th Cir. 1993) (concluding that a defendant was in custody when he
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was “questioned by an FBI agent while sitting handcuffed in the back of a police
car,” although not under arrest); Figg v. Schroeder, 312 F.3d 625, 636 (4th Cir.
2002) (holding that the defendant was “seized” within the meaning of the Fourth
Amendment where, although not formally arrested, the defendant was detained in a
patrol car and not allowed to leave); United States v. Richardson, 949 F.2d 851,
856 (6th Cir. 1991) (same); with United States v. Murray, 89 F.3d 459, 462 (7th
Cir. 1996) (“[T]he fact that [the defendant] was questioned while seated in the back
of the squad car did not put him ‘in custody’ for purposes of the Miranda
warnings.”); United States v. Boucher, 909 F.2d 1170, 1773–74 (8th Cir. 1990)
(same). Moreover, the Supreme Court has emphasized that the determination of
whether a defendant was “in custody” for Miranda purposes is a general one,
which affords courts “more leeway . . . in reaching outcomes in case-by-case
determinations.” Yarborough, 541 U.S. at 664–65; see also Carey v. Musladin,
549 U.S. 70, 77 (2006) (noting that the state court did not unreasonably apply
clearly established federal law where there was a “lack of [Supreme Court]
holdings” on the question at issue and “lower courts ha[d] diverged widely in their
treatment of” the defendant’s claim).
In light of all the circumstances surrounding the questioning of Burlew, we
conclude that the state court did not unreasonably apply federal law in holding that
4
Burlew was not “in custody” at the time he made his incriminating statement. We
affirm the district court’s denial of habeas relief.
AFFIRMED.
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