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. 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

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

Opinion by Judge W. Fletcher;
Concurrence by Judge Singleton

*
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
2 REYES V. LEWIS

SUMMARY**

Habeas Corpus

The panel reversed the district court’s denial of a habeas
corpus petition alleging that petitioner’s state-court
conviction rested on a confession obtained in violation of
Missouri v. Seibert, 542 U.S. 600 (2004).

The panel held that for the purpose of review under the
Anti-Terrorism and Effective Death Penalty Act, Justice
Kennedy’s concurrence in Siebert constitutes “clearly
established” Supreme Court law. Under this concurrence, a
post-Miranda-warning statement must be suppressed if
interrogating officers deliberately use the two-step
interrogation technique that was used in Siebert, and if
effective curative measures are not taken to ensure that the
suspect genuinely understood the Miranda warnings. The
two-step technique involves interrogating in successive,
unwarned and warned phases.

The panel held that under the circumstances of this case¯
where police interrogated the fifteen-year-old petitioner over
the course of two days; where on the first day at a police
station they conducted a two-hour unwarned interrogation;
where on the second day at a sheriff’s station they obtained
a confession during an unwarned interrogation following an
unwarned polygraph test; and where they transported the
petitioner back to the police station and obtained a

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 REYES V. LEWIS 3

postwarning confession “clarifying” what he had stated at the
sheriff’s station¯a Siebert analysis was clearly required.

The panel held that because the state court did not
conduct such an analysis, its decision was contrary to clearly
established federal law, as determined by the Supreme Court,
and thus was owed no deference. The panel held that the
district court clearly erred in finding that the law enforcement
officers had not deliberately employed the two-step
interrogation process. In addition, the officers did not take
effective curative measures. The panel held, alternatively, in
agreement with the concurrence, that the state court’s
conclusion that sufficient curative measures were taken was
an unreasonable determination of the facts. The panel
reversed and remanded with instructions to grant the writ
unless the petitioner was tried within a reasonable time, not
to exceed 180 days.

Concurring, District Judge Singleton wrote that a Siebert
analysis includes two parts. First, the court asks whether the
two-step interrogation procedure was chosen intentionally in
order to render subsequent Miranda warnings ineffective.
Second, the court asks if the two-step process, whether or not
intentional, rendered the subsequent warnings ineffective.
Judge Singleton wrote that the state court followed Siebert by
applying the second part of the test and concluding that
sufficient curative measures were taken. Reviewing the first
part of the test de novo, because the state court did not
address it, Judge Singleton agreed with the majority that the
use of the two-step procedure was a conscious effort to
undermine Miranda. Granting deference to the state court on
the second part of the Siebert test, Judge Singleton wrote that
the state court’s finding was based on an unreasonable
determination of the facts.
4 REYES V. LEWIS

COUNSEL

Elizabeth Armena Missakian (argued), San Diego, California,
for Petitioner-Appellant.

Kevin Vienna (argued), David Delgado-Rucci, and Daniel
Rodgers, Deputy Attorneys General, Julie L. Garland, Senior
Assistant Attorney General, and Kamala D. Harris, Attorney
General, San Diego, California, for Respondent-Appellee

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Adrian Reyes petitions for a writ of habeas
corpus on the ground, inter alia, that his state-court
conviction rested on a confession obtained in violation of
Missouri v. Seibert, 542 U.S. 600 (2004). For the reasons that
follow, we reverse the district court and remand with
instructions to grant the writ.

I. Factual Background

On January 11, 2006, an armed person got out of a silver
Toyota Camry and shot Derek Ochoa three times. The person
may have yelled “Delhi” (the name of an Orange County
gang). Ochoa died as a result of the shooting. He was a
senior at La Sierra High School in Riverside County.

Riverside Police Department officers traced the Camry to
the home of Andres Munoz, an older cousin of petitioner
Adrian Reyes. The car was registered to another member of
the Munoz family, Albert. Reyes had recently moved to
 REYES V. LEWIS 5

Riverside County from Orange County. He was a freshman
at La Sierra. He was not quite two months past his fifteenth
birthday.

The day before the shooting, Reyes had been walking
home from school with a friend. A carload of gang members
drove up and asked Reyes where he was from. Reyes
answered “Delhi.” One of the gang members punched Reyes
in the eye. They then drove away, yelling “South Side
Riverside 51-50.”

Two days after the shooting, Riverside Police Department
homicide detectives James Brandt and Rick Wheeler
questioned Reyes at his aunt’s home. Reyes had moved from
his family’s home to his aunt’s home the day after his assault
by the gang members. The detectives’ questions related
primarily to the assault. During the questioning, Reyes
acknowledged that he had known Ochoa and that he knew
Delhi was a “group in Santa Ana.”

Nearly a month later, on February 9, sometime between
5:20 and 5:30 in the morning, a SWAT team of between
fifteen and twenty officers executed a search warrant on
Reyes’s aunt’s home. They handcuffed Reyes and searched
the house. In Reyes’s bedroom they discovered papers with
“Delhi” written in large block letters. After the house was
secured, Reyes was released from handcuffs and allowed to
eat breakfast.

Brandt told Reyes that he was not under arrest, but that he
wanted to ask him some questions at the station. Reyes
acquiesced, and he was driven to the Riverside police station.
Reyes was not accompanied to the station by any family
member. At the station, Brandt and Wheeler together
6 REYES V. LEWIS

questioned Reyes. At no point during their questioning on
February 9 did they provide Miranda warnings.

Reyes was held at the station for some time before he was
questioned. Wheeler began the interview by saying, “Thanks
for being so dang patient man I appreciate you . . . [h]anging
out for us ’cause it’s been a long day, long day.” Wheeler
told Reyes that he could stop the interview at any time: “I just
wanna make sure that you understand that if we get at some
point in the interview that you’re done talkin’ . . . and you
don’t feel like answering any more questions or whatever, let
me know, okay?”

Wheeler asked briefly about the assault the day before the
shooting. He then asked about the shooting. He said that the
search warrants had been executed and that they had talked
“with all these different people.” “[W]e got pictures, too, . . .
and I’ve had more than one person say that’s the car that the
guy was in, okay? . . . I’ve got enough information that shows
that you were there.” (Wheeler’s statement was false. The
only witness who had made any type of identification had not
identified Reyes.) According to the transcript, Wheeler was
interrupted by the “sound of sniffing.” Wheeler continued,
“[T]here’s no denying it. . . . [T]he truth is gonna come out
and, and I already know what it is.” Reyes denied that he was
there. “I didn’t go out that day you could ask my Mom, you
would ask anybody in my home I didn’t come out that day, I
was sleeping.” When Wheeler said that the police had
spoken to his family already, Reyes said, “Don’t you guys
have a lie detector or something? I, I was in my house.”

Brandt then took over the questioning. He challenged
Reyes, saying that he had his phone records. “When your
phone is being used basically six, seven, eight times an hour
 REYES V. LEWIS 7

every, you know, on an average every five minutes so you’re
not sleeping okay?” Brandt was interrupted by the “sound of
sniffing.” Brandt suggested a mitigating version of events:
“There is a big difference between being in the car when this
thing happens . . . and being the shooter and stuff. . . . So
just tell us what happened, okay?” “We’ve done our
homework, dude and . . . don’t screw yourself and lie to us,
seriously, tell us what happened.”

Wheeler and Brandt pressed Reyes on the inconsistency
between Reyes’s statements and his phone records. Wheeler
asked him about the papers found in his room with “Delhi
written in big letters.” Brandt said, “We work homicide,
alright, we gonna do our homework, definitely, I’m telling
you, we have the car, we have the gun, we have five guns
total. . . .” (Brandt’s statement was false. The Sheriff’s
Department had not recovered—indeed, never did
recover—the gun used to shoot Ochoa.)

Wheeler and Brandt continued to press Reyes. Brandt
said, “[T]here’s another detective was out showing witnesses
the picture . . . ’cause we had a picture of you.” Wheeler
immediately followed, “And we identified you as being in the
car.” (Wheeler’s statement was false. Reyes had not been
identified by anyone as having been in the car.) Brandt said,
“I’m not trying to trick you and . . . I’m not making the stuff
up that I’m telling you . . . . [S]o you know I’m not trying to
trick you.”

Brandt talked about Ochoa’s family and their “right to
understand what happened.” Reyes responded, “I don’t really
want to say nothing no more . . . trying to cooperate here.”
(Elision in original.) Brandt replied, “You’re not
cooperating.” Brandt was interrupted multiple times by the
8 REYES V. LEWIS

“sound of sniffing.” A moment later, Brandt said, “Tell me
what happened.” Reyes responded, “I don’t know nothing
man.”

Reyes said, “Stop asking me questions.” Brandt said, “No
I’m not gonna stop asking you questions.” Brandt was again
interrupted by the “sound of sniffing.”

Brandt said, “[A]re you willing to take a polygraph
examination?” Reyes responded, “Yeah.” Brandt elaborated,
“About everything.” Reyes responded, “I guess, man, I don’t
know nothing man.” Reyes mentioned that he might need to
have his parents there, but Brandt interrupted him, saying,
“[W]e’ll certainly arrange for all that stuff just seeing that
you’re willing to . . . do it.”

A moment later, Reyes said, “You guys stop asking me
. . . kinda questions.” (Elision in original.) “Stop[] asking
this kind of stuff man.” Wheeler, who had begun the
interview by telling Reyes that he could stop at any time, did
not stop. He responded to Reyes, “The only rope that you got
is me throwing it to you right now and telling you ‘you gotta
be clean’ because you haven’t been. This thing’s gonna burn
you down.”

Wheeler persisted, interrupted frequently by the “sound
of sniffing.” Reyes continued to indicate that he did not want
to talk. “I’ve got nothing to say man.” Brandt took over the
questioning: “Okay, so witnesses identifying you and other
people in the car identifying you, . . . you’re good with that?
. . . You want us to go in there with this two-hour
conversation of you just lying about where you were when
your phone records show it’s not the case and all that stuff,
 REYES V. LEWIS 9

you’re comfortable with that.” Reyes replied, “Stop asking
me man. I don’t know nothing.”

Brandt terminated the interview, saying, “This time when
I walk out I’m not gonna come back and give you another
shot, okay? We’re gonna, we’ll, we’ll go to the D.A.’s office
and, and then later on to court with the case we have and, and
I’m, I’m not worried about it, I’m not gonna lose.” Wheeler
added, “Oh ya, we’re not gonna lose that case.” Brandt said,
“Last chance.” Reyes responded, “I don’t know nothing
man.”

The transcript of the February 9 interview does not
indicate start and stop times, but it is apparent from Brandt’s
statement referring to “this two-hour conversation,” quoted
above, that the interview took about two hours. Brandt
testified at Reyes’s preliminary hearing that the interview
had taken “forty minutes to an hour,” but his testimony is
inconsistent with what he himself said during the interview
and with the length of the transcript. The interview was
interrupted thirty-three times by the “sound of sniffing.”

Reyes went to his mother’s house to sleep that night. The
next morning, Brandt and Michael Medici, another Riverside
Police Department detective, picked up Reyes and took him
to the San Bernardino County sheriff ’s station for a
polygraph test. There is no written consent by an adult to the
polygraph test. Brandt testified at the preliminary hearing
that Reyes’s mother gave permission “on the phone,” and the
record contains a police report stating that she had given
permission. No family member accompanied Reyes to the
sheriff’s station.
10 REYES V. LEWIS

Robert Heard of the San Bernardino County Sheriff’s
Department administered the polygraph test. Before
administering the test, Heard spoke with Reyes for a
sustained period. He impressed on Reyes the fact that he was
an experienced test administrator. He recounted that he had
gone to “polygraph school” “9 years before you were born,”
and that he was high demand as a polygraph teacher. At no
point did Heard provide Miranda warnings.

Reyes had difficulty filling out a form Heard gave him,
not knowing his zip code or his height and weight. Reyes had
even more difficulty with the written consent form. When he
did not understand the terms “duress and coercion” and
“immunity,” Heard explained them in simpler language.
Reyes had particular trouble understanding what was meant
by the sentence, “I hereby release the County of San
Bernardino, the Sheriff’s Department and Examiner
administering this examination from any and all claims
resulting from, or arising out of, this examination. . . .” After
Heard explained what “release . . . from any and all claims”
meant, Reyes said, “Alright, so that, that means like that you
guys won’t, won’t trick me . . . .” Heard corrected him,
saying, “Well, no, this doesn’t say I won’t trick you.” Heard
then added, “[Y]ou have my word I won’t trick you.” Heard
again explained what “release” meant, and said, “That’s what
it means.” Reyes responded, “Like you haven’t tricked me or
something.” Heard replied, “Exactly, exactly.” Thus
informed, Reyes signed the consent form.

After administering the test, Heard told Reyes, “You
failed the test. I have no doubt that you were there when
Derek was shot.” (There is nothing in the record to indicate
whether Reyes had in fact failed the test.) Heard pressed
 REYES V. LEWIS 11

Reyes to give details about what he had done. Reyes asked,
“[L]ike what’s the truth gonna help?” Heard answered:

[T]hey read my report and the detectives, their
supervisor reads the report. . . . And the
District Attorney’s gonna ask these detectives
hey, how was Adrian? Is he one of these, you
know tough, gang banger type guys[]? No,
no. Adrian’s a nice young man. He
cooperated, failed the test, and without
hesitation he says hey, look, man, I feel bad
about what happened. . . . Adrian, I can’t tell
you what’s gonna happen because you know
what? I don’t know. I don’t[] know what’s
gonna happen because you haven’t told me
what happened out there. . . . [Y]ou tell me
I’m going to state prison for, I, I, said 25 to
life or something like that. Fifteen year olds
don’t go to state prison, Adrian.

Reyes responded, “I know, but I’ve got a go to Juvenile
Hall.” Heard replied, “Well, I don’t know what’s gonna
happen because I, you haven’t told me anything yet, Adrian.”

Heard continued to ask Reyes what happened, and Reyes
repeated several times that he did not know. Heard asked
from what side of the car the shooter had shot. Reyes
responded, “Oh, not that I know, you know, so don’t ask any
question.” Heard asked, “You wanna be alone?” Reyes
replied, “No, it’s just, just don’t ask any questions,” and then
said, “Can we just call the detectives?”
12 REYES V. LEWIS

Brandt and Medici then came into the room and took over
from Heard. At no point in the interview that followed did
they provide Miranda warnings.

Brandt asked at the outset, “[W]hat’s your biggest
concern, going to jail?”

Reyes: Think so.

Brandt: At all or for a long time?

Reyes: For a long time.

Brandt: Okay, how long do you think you
would go to jail for?

Reyes: I don’t know. Like it’s a murder,
probably like 25 years.

Brandt: Yeah? How old are you?

Reyes: 15.

Brandt: How many 15 year olds do you know
that go to jail for 25 years?

Reyes: None.

Brandt: Huh?

Reyes: None.

Brandt: Okay, so why would you be any
different?
 REYES V. LEWIS 13

Reyes: I don’t know.

Brandt then asked, “Remember yesterday I asked you . . .
if Derek had anything in his hands or reached for his pockets,
anything like that? You remember me asking you that?”
Reyes replied, “No.” Brandt then told Reyes that Ochoa had
had a gun:

There’s a reason, a very easy explanation to
this whole thing. . . . The deal is . . . Derek
had a gun in his pocket. . . . Now, if he’s
going for a gun in his pocket or you believed
he was going for a gun in his pocket and we
find one, that’s obviously, and it’s, there’s an
explanation as to what happened. Maybe you
just stopped and talked to him because you
knew him, and then he’s going for a gun or
something like that . . . and shit happens.

(Third elision in original.) (Brandt’s statement was false.
Ochoa had not had a gun.)

Brandt went on, “If it’s just . . . a cold blooded thing, no,
we just, went up and . . . did it and, and shot him just because,
um, and I don’t feel bad about it . . . that looks bad.” Reyes
said, “It wasn’t like that.” Brandt said, “Tell me, tell me why,
how did it happen then?” Reyes hesitated. “I’m scared,
man. . . . Make everybody go to prison and everything, like I
want everybody to get locked up.” Brandt responded, “[I]f
he’s going for a gun, dude, . . . that’s gotta be explained. We
have to know that and we have to be able to tell the District
Attorney’s office that . . . .” Reyes still hesitated. After
encouragement from Brandt, he finally said, “Um hmm,
hmm, well, he, you, he always had a gun.”
14 REYES V. LEWIS

After more encouragement, Reyes said, “He was just
running up to the car.” Brandt asked, “Okay, was he reaching
for his pockets or anything like that?” Reyes replied, “Yeah.”
Brandt said, “Okay, and what happened?” Reyes replied, “I
don’t know.” Reyes expressed concern about his older
cousin, Andres Munoz, and sought to exculpate him. “Well,
if I say something like what’s going to happen with my
cousin? Is he still gonna go to jail? . . . He had nothing to do
with it.”

Brandt asked, “Did you shoot him because you thought he
was going for a gun? Yeah? Did you . . . see the gun in his
pocket?”

Reyes: He was reaching for it.

Brandt: Okay . . . and then what happened?

Reyes: He had a grip on it.

Brandt: Okay, do you remember . . . what
pocket it was in, what side it was in? Okay,
do you remember seeing the grip of the gun
though? And he was reaching for it? But
what was he yelling at you guys?

Reyes: I don’t know. It was just, I wasn’t
panicked . . . ain’t gonna say nothing, just
scared.

Brandt: You were scared cause he was going
for the gun? And then, and what happened?

Reyes: I don’t know. I just shot.
 REYES V. LEWIS 15

Reyes’s statement that he had shot Ochoa came early in
the interview, on the seventh page of the transcript. Brandt
and Medici continued to question and talk to Reyes for
another thirty-five pages. Much of the later exchange was
friendly, even including a discussion of Christmas. Reyes
said that his family opens presents at “twelve in the night.”
Brandt responded, “Oh, see I can’t stay up that late,” and
Reyes laughed. Near the end of the interview, Medici asked,
“Does your Mom know about any of this, your Dad?” Reyes
responded, “It’ll be cool like if you guys don’t tell my Mom,
you know, cause . . . [l]ike it’ll break her heart and shit, you
know, cause like she’s very religious.” Brandt told Reyes,
“Oh, we don’t need to run over there.”

Immediately after the February 10 interview at the San
Bernardino sheriff’s station, Brandt drove Reyes back to the
Riverside police station where he and Wheeler had
interviewed him the day before. The length of the drive is not
in the record, but it is apparent from a map of the area that it
was no more than fifteen miles. When they arrived at the
Riverside police station, Reyes was put in an interview room.

Brandt and Medici together questioned Reyes. Brandt
began the interview:

OK. Uuh, we talked to people at the D.A.’s
office and stuff about the case. Kinda told
them that, you know, you came clean and
finally told us the truth and why things
happened and, you know that you were, you
know, obviously scared and all that kind of
stuff. Uuh, there’s more questions that they
want answered, if we can. OK, just to, to
clarify stuff. Alright, so I wanna talk to you
16 REYES V. LEWIS

again, but because you’ve been sitting in that
room and the door was locked and you’re not
free to leave, I wanna read you your rights,
OK? And then ask you some questions. OK?
You have the right to remain silent. Anything
you say can and will be used against you in a
court of law. You have the right to talk to a
lawyer and have him present with you while
you’re being questioned. If you cannot afford
to hire a lawyer, one will be appointed to
represent you before any questioning. Do you
understand each of these rights that I’ve
explained to you? Yeah? OK. Can we talk
about the stuff we talked about earlier today?
Is that a yes?

Reyes, who had not previously spoken, answered, “Yeah.”

Under questioning from Brandt, Reyes repeated his
confession. At the end of the interview, Reyes said, “Let me
call my mom.” Medici then handcuffed Reyes before taking
him to McDonald’s to get something to eat.

The total elapsed time, from when Brandt picked up
Reyes at his mother’s house on February 10 until the
conclusion of the interview at the Riverside police station on
the same day, was somewhere between five and six hours.
Brandt testified at Reyes’s preliminary hearing that he picked
up Reyes at approximately 9:00 am to drive him to the San
Bernardino sheriff’s station. He estimated that Reyes then
spent about three hours at that station, including both his
polygraph test with Heard and his post-polygraph interview
with Brandt and Medici. During the suppression hearing, the
state represented that Reyes spent four hours at the San
 REYES V. LEWIS 17

Bernardino sheriff’s station. Brandt then drove Reyes to the
Riverside police station for the second interview with Brandt
and Medici. Brandt estimated that the second interview took
between forty minutes and an hour. There is nothing in the
record to indicate that Reyes had anything to eat until Medici
took him to McDonald’s for a late lunch at the conclusion of
the interview at the Riverside police station.

II. Prior Judicial Proceedings

Reyes and his cousin Andres Munoz were charged in
California Superior Court with first-degree murder. They
were tried before the same judge with separate juries. Reyes
moved to suppress his confession as having been obtained in
violation of Miranda. The judge concluded that Reyes’s
February 10 post-polygraph confession at the San Bernardino
sheriff’s station was voluntary but that he had been in custody
within the meaning of Miranda when he made the statement.
The judge therefore suppressed his unwarned post-polygraph
statement at the sheriff’s station. However, the judge refused
to suppress Reyes’s postwarning confession at the Riverside
police station.

At trial, there was inconsistent evidence about the identity
of the shooter. Except for Reyes’s postwarning confession,
the evidence largely pointed to Reyes’s cousin, Munoz, who
had been the driver of the car, rather than Reyes, who had
been a passenger.

A friend of both Ochoa and Reyes testified that Reyes had
been in the back seat, on the passenger side, of a silver car on
the afternoon of the shooting. An eyewitness to the shooting
testified that she saw the driver of a silver Camry get out of
the car and shoot Ochoa. She made an in-court identification
18 REYES V. LEWIS

of the driver as Munoz. Another eyewitness agreed with this
account. She testified that the driver got out of the car,
walked toward Ochoa, shot Ochoa, and “continue[d] shooting
until he couldn’t anymore.” She testified that the back door
on the driver’s side was opened, but that no one got out of the
back seat. She was unable to identify the shooter, either
when shown photographs shortly after the shooting, or in the
courtroom.

Another witness testified that he heard gunshots as he was
pulling out of his father’s driveway. He pulled back into the
driveway and got out of the car to look. He testified that he
saw someone get out of the back seat on the passenger side
and come around to the driver’s side. “I don’t know if he
actually went to check on the kid [who had been shot] or . . .
what else happened. . . . [I]t just happened so quick.” He
estimated that the time between the shots being fired and the
person getting out of the back passenger seat “wasn’t
long”—“[m]aybe a couple of seconds.” Yet another witness,
a friend of Ochoa’s, testified that he was on the front porch of
a friend’s house when he heard shots. His view was obscured
by cacti, so he “started walking toward the front yard.” “We
were going towards [Ochoa], and that’s when we saw the guy
shooting at him. But I only saw when he just went inside the
car, like turned around inside the car and yelled out ‘Delhi.’”
He testified that there were five people in the car and that it
was “light brown.” He testified that he saw only one person
get into the car, and that this person got into the back seat on
the driver’s side.

The jury returned a verdict finding Reyes guilty of first-
degree murder with gang and firearm enhancements. The
judge sentenced Reyes to fifty years to life in prison, twenty-
five years for the murder conviction and twenty-five years for
 REYES V. LEWIS 19

the firearm enhancement. The court stayed sentencing on the
two gang enhancements.

Reyes appealed, claiming, inter alia, that the trial court
had erred in admitting his February 10 confession at the
Riverside police station, after he had received Miranda
warnings. In his brief to the California Court of Appeal,
Reyes made an argument based on Seibert. The Court of
Appeal affirmed Reyes’s conviction, holding that his
confession at the Riverside police station was admissible.

In the view of the Court of Appeal, the “operative
question” was whether Reyes’s post-polygraph statement had
been voluntary. The Court of Appeal wrote:

The issue on appeal is whether the trial
court erred in allowing defendant’s
subsequent statements made at the Riverside
police station after defendant was advised of
his Miranda rights. The operative question is
thus whether defendant was subjected to
coercion within the meaning of the Fifth and
Fourteenth Amendments when he was
interrogated at the sheriff’s station and, if so,
whether his statements made thereafter at the
Riverside police station were the tainted
product of the earlier statements.

...
20 REYES V. LEWIS

We thus will consider whether the trial
court erred in finding that defendant’s
statements were voluntary.

(Emphasis added.)

The Court of Appeal then spent nine pages analyzing in
detail what had taken place during the post-polygraph
interview at the police station, concluding that the “trial court
had properly ruled defendant’s statements, both at the
sheriff’s station and thereafter at the Riverside police station,
were voluntary beyond a reasonable doubt.” In the view of
the Court of Appeal, because Reyes’s statements at the
sheriff’s station had been voluntary, his later statements at the
police station were necessarily “likewise volitional.” The
Court of Appeal dismissed Reyes’s argument under Seibert
in a single paragraph, on the ground that his statement at the
Riverside police station had been “volitional”:

Since defendant’s statements made at the
sheriff’s station were voluntary, his waiver of
Miranda rights at the Riverside police station
and statements made thereafter were likewise
volitional. Unlike in Missouri v. Seibert
(2004) 542 U.S. 600, 61[7], the circumstances
in the instant case need not “be seen as
challenging the comprehensibility and
efficacy of the Miranda warnings to the point
that a reasonable person in the suspect’s shoes
would not have understood them to convey a
message that [he] retained a choice about
continuing to talk.” (Id. at p. 61[7].)

(Second alteration in original.)
 REYES V. LEWIS 21

Reyes filed a state habeas petition contemporaneously
with his direct appeal. The Court of Appeal declined to
consolidate the petition and the appeal, summarily denying
the petition in a one-sentence order. The California Supreme
Court summarily denied both Reyes’s direct appeal and his
habeas petition.

Reyes timely filed a petition for federal habeas corpus
under 28 U.S.C. § 2254. In his Report and Recommendation,
the magistrate judge devoted most of his analysis to whether
Reyes’s Riverside police station confession was coerced. He
concluded under the deferential standard of the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”) that
the Court of Appeal had not been unreasonable in concluding
that the confession was not coerced. He dismissed Reyes’s
Seibert argument in a footnote, concluding that there was no
evidence that the law enforcement officers deliberately
employed the two-step method of interrogation condemned
in that case. The district court adopted without comment or
correction the conclusions and recommendations of the
magistrate judge.

Reyes timely appealed. Prior to oral argument, we asked
the parties to provide supplemental briefs on Seibert and its
application to the facts of this case.

III. Standard of Review

We review de novo the district court’s decision to deny
Reyes’s habeas petition. Martinez-Villareal v. Lewis, 80 F.3d
1301, 1305 (9th Cir. 1996).

Under AEDPA, we may not grant an application for a writ
of habeas corpus for a state prisoner with respect to any claim
22 REYES V. LEWIS

adjudicated on the merits in state court unless the state
adjudication “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), or “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2). “[C]learly established Federal
law” includes only governing legal principles established by
the United States Supreme Court at the time the state decision
was rendered. Greene v. Fisher, 132 S. Ct. 38, 44 (2011).

A state court’s decision is “contrary to” or is an
“unreasonable application” of clearly established federal law
if it applies a rule that contradicts governing Supreme Court
precedent, “unreasonably extends a legal principle . . . to a
new context where it should not apply, or unreasonably
refuses to extend that principle to a new context where it
should apply.” Williams v. Taylor, 529 U.S. 362, 405–07
(2000).

“A state-court decision will certainly be contrary to . . .
clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases.” Id. at 405; see also Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam) (“Avoiding [a ‘contrary to’ error]
does not require citation of [Supreme Court] cases—indeed,
it does not even require awareness of [Supreme Court] cases,
so long as neither the reasoning nor the result of the state-
court decision contradicts them.”); Frantz v. Hazey, 533 F.3d
724, 734 (9th Cir. 2008) (en banc) (“[M]istakes in reasoning
or in predicate decisions of the type in question here—use of
the wrong legal rule or framework—do constitute error under
the ‘contrary to’ prong of § 2254(d)(1).”). If a state court’s
 REYES V. LEWIS 23

decision is “contrary to clearly established Federal law, as
determined by the Supreme Court,” § 2254(d)(1), a federal
habeas court does not owe deference under AEDPA to that
decision. Frantz, 533 F.3d at 739; cf. Panetti v. Quarterman,
551 U.S. 930, 948 (2007) (stating this rule for “unreasonable
application” error). If a “contrary to” error is identified, then
“we must decide the habeas petition by considering de novo
the constitutional issues raised.” Frantz, 533 F.3d at 735.

We may also grant a writ of habeas corpus in cases where
the state-court decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We
“may not second-guess a state court’s fact-finding process
unless, after review of the state-court record, [we]
determine[] that the state court was not merely wrong, but
actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004). To grant relief under this prong, “we must be
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Id. at 1000.

The relevant state court decision for purposes of AEDPA
review is the last reasoned state court decision. Ylst v.
Nunnemaker, 501 U.S. 797, 804–06 (1991); Medley v.
Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc). Here,
that decision is the California Court of Appeal’s decision on
direct review of Reyes’s conviction. See Nunnemaker, 501
U.S. at 805–06.

IV. Discussion

Reyes makes two arguments. First, he argues that his
warned Riverside police station confession on February 10
24 REYES V. LEWIS

was coerced in violation of the Fifth Amendment. Second, he
argues that this confession was admitted in violation of
Seibert. For the reasons that follow, we agree with Reyes’s
second argument. We therefore do not need to reach his first
argument.

A. “Contrary To”

As the Supreme Court explained in Oregon v. Elstad,
470 U.S. 298, 304 (1985), “[p]rior to Miranda, the
admissibility of an accused’s in-custody statements was
judged solely by whether they were ‘voluntary’ within the
meaning of the Due Process Clause.” That is, the pre-
Miranda exclusionary rule analysis was simply a Due Process
Clause voluntariness inquiry. Miranda fundamentally altered
the analysis: “The Miranda Court . . . presumed that
interrogation in certain custodial circumstances is inherently
coercive and held that statements made under those
circumstances are inadmissible unless the suspect is
specifically informed of his Miranda rights and freely decides
to forego those rights.” New York v. Quarles, 467 U.S. 649,
654 (1984). The Court was concerned in Miranda that its
“‘traditional totality-of-the-circumstances’ test posed an
‘unacceptably great’ risk that involuntary custodial
confessions would escape detection.” Seibert, 542 U.S. at
608 (quoting Dickerson v. United States, 530 U.S. 428, 444
(2000)). The Court therefore held in Miranda that finding a
statement had been “voluntary” would no longer be
sufficient. The Court explained, “Failure to administer
Miranda warnings creates a presumption of compulsion.
Consequently, unwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must
nevertheless be excluded from evidence under Miranda.”
Elstad, 470 U.S. at 307 (emphasis added). Miranda and later
 REYES V. LEWIS 25

cases thus clearly establish that voluntariness, while relevant
to the admissibility of a statement given during a custodial
interrogation, is not by itself sufficient to establish the
statement’s admissibility.

Miranda was decided in 1966. By the time the Court
decided Seibert in 2004, “Miranda warnings” had taken on
near-talismanic significance, almost guaranteeing
admissibility of a warned statement. Justice Souter wrote in
Seibert that “giving the warnings and getting a waiver has
generally produced a virtual ticket of admissibility;
maintaining that a statement is involuntary even though given
after warnings and voluntary waiver of rights requires
unusual stamina, and litigation over voluntariness tends to
end with the finding of a valid waiver.” Seibert, 542 U.S. at
608–09 (Souter, J., plurality opinion). In Elstad, the Court
had held that an unwarned voluntary confession followed by
a voluntary warned confession did not require the exclusion
of the second, warned confession. But in Seibert, the Court
limited its holding in Elstad. In some circumstances, the
Court wrote in Seibert, “the technique of interrogating in
successive, unwarned and warned phases,” was a “new
challenge to Miranda” that Elstad had not resolved. Id. at
609.

In Seibert, a police officer in Rolla, Missouri, conducted
an unwarned interrogation of Seibert that was “systematic,
exhaustive, and managed with psychological skill.” Id. at
616. The unwarned interrogation produced a confession.
The officer then gave Seibert a twenty-minute coffee and
cigarette break. After the break, he read Seibert her Miranda
warnings, and she signed a written waiver. The officer then
resumed questioning, reminding Seibert of her prior
prewarning statements. Id. at 605. The officer later “testified
26 REYES V. LEWIS

that he made a ‘conscious decision’ to withhold Miranda
warnings, thus resorting to an interrogation technique he had
been taught: question first, then give the warnings, and then
repeat the question ‘until I get the answer that she’s already
provided once.’” Id. at 605–06. The Seibert plurality wrote,
with some understatement, that the use of this two-step
interrogation technique “[wa]s not confined to Rolla,
Missouri.” Id. at 609. Indeed, as the plurality noted, its use
had been promoted and endorsed by national police training
organizations including the Police Law Institute. Id. at
609–10.

Justice Souter observed in his plurality opinion in Seibert
that the purpose of the two-step interrogation technique was
“to render Miranda warnings ineffective by waiting for a
particularly opportune time to give them, after the suspect has
already confessed.” Id. at 611. He concluded:

It would have been reasonable to regard the
two sessions as parts of a continuum, in which
it would have been unnatural to refuse to
repeat at the second stage what had been said
before. These circumstances must be seen as
challenging the comprehensibility and
efficacy of the Miranda warnings to the point
that a reasonable person in the suspect’s shoes
would not have understood them to convey a
message that she retained a choice about
continuing to talk.

Id. at 616–17. In a footnote appended to this passage, Justice
Souter made clear that if a two-step interrogation technique
violated Miranda, the voluntariness of the postwarning
statement is irrelevant. In that circumstance, even a voluntary
 REYES V. LEWIS 27

statement must be suppressed. Justice Souter wrote,
“Because we find that the warnings were inadequate, there is
no need to assess the actual voluntariness of the statement.”
Id. at 617 n.8.

Concurring, Justice Kennedy agreed with Justice Souter
that, if deliberately employed, a two-part interrogation
technique presented “different considerations” from earlier
Miranda cases. Id. at 620 (Kennedy, J., concurring in the
judgment). While Justice Kennedy’s fifth-vote concurrence
narrowed Seibert’s holding to “those cases involving
deliberate use of the two-step procedure to weaken
Miranda’s protections,” United States v. Williams, 435 F.3d
1156, 1157–58 (9th Cir. 2006) (emphasis added), the plurality
and Justice Kennedy agreed that even a voluntary
postwarning confession must be excluded where law
enforcement officials deliberately withheld Miranda
warnings until after obtaining an in-custody confession, and
where insufficient curative measures had been taken to ensure
that the suspect understood the meaning and importance of
the previously withheld warnings.

Justice Kennedy wrote:

The plurality concludes that whenever a
two-stage interview occurs, admissibility of
the postwarning statement should depend on
“whether [the] Miranda warnings delivered
midstream could have been effective enough
to accomplish their object” given the specific
facts of the case. . . . I would apply a
narrower test applicable only in the infrequent
case, such as we have here, in which the two-
step interrogation technique was used in a
28 REYES V. LEWIS

calculated way to undermine the Miranda
warning.

The admissibility of postwarning
statements should continue to be governed by
the principles of Elstad unless the deliberate
two-step strategy was employed. If the
deliberate two-step strategy has been used,
postwarning statements that are related to the
substance of prewarning statements must be
excluded unless curative measures are taken
before the postwarning statement is made.
Curative measures should be designed to
ensure that a reasonable person in the
suspect’s situation would understand the
import and effect of the Miranda warning and
of the Miranda waiver. For example, a
substantial break in time and circumstances
between the prewarning statement and the
Miranda warning may suffice in most
circumstances, as it allows the accused to
distinguish the two contexts and appreciate
that the interrogation has taken a new turn.
Alternatively, an additional warning that
explains the likely inadmissibility of the
prewarning custodial statement may be
sufficient.

Id. at 621–22 (Kennedy, J., concurring in the judgment)
(internal citations omitted).

The Court has instructed us to take as “clearly
established” for purposes of § 2254 the “narrowest” opinion
in a fractured majority, as defined under Marks v. United
 REYES V. LEWIS 29

States, 430 U.S. 188, 193 (1977). See Panetti, 551 U.S. at
949. In accordance with this instruction, we have held that
Justice Kennedy’s concurrence “represents Seibert’s
holding.” Williams, 435 F.3d at 1158; accord United States
v. Capers, 627 F.3d 470, 476 (2d Cir. 2010) (collecting
cases). While Supreme Court precedent is the only definitive
source of “clearly established” federal law, we may consider
circuit precedent for the limited purpose of assessing what
constitutes “clearly established” Supreme Court law. Woods
v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).

Justice Kennedy’s concurrence thus constitutes “clearly
established” law for the purpose of AEDPA review. Under
Justice Kennedy’s concurrence, a postwarning statement must
be suppressed if interrogating officers deliberately use the
two-step interrogation technique that was used in Seibert, and
if effective curative measures are not taken to ensure that the
suspect genuinely understood the Miranda warnings. In the
words of Justice Kennedy, quoted above, “[c]urative
measures should be designed to ensure that a reasonable
person in the suspect’s situation would understand the import
and effect of the Miranda warning and of the Miranda
waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in
the judgment).

The California Court of Appeal did not understand
Seibert. In the view of the Court of Appeal, the “operative
question” under Miranda was whether Reyes’s unwarned
post-polygraph statement at the San Bernardino sheriff’s
station had been voluntary. In the view of the Court of
Appeal, if that statement had been voluntary, his later
Mirandized statement at the San Bernardino police station
was necessarily “likewise volitional.” The Court of Appeal
spent nine pages addressing the voluntariness of Reyes’s
30 REYES V. LEWIS

unwarned post-polygraph statement at the San Bernardino
sheriff’s station. For the Court of Appeal, the voluntariness
of that statement determined the admissibility of the
subsequent warned statement at the Riverside police station.
The Court of Appeal addressed Seibert in a single paragraph.

We quoted that paragraph above, but we reproduce it
here, in its entirety, for the convenience of the reader:

Since defendant’s statements made at the
sheriff’s station were voluntary, his waiver of
Miranda rights at the Riverside police station
and statements made thereafter were likewise
volitional. Unlike in Missouri v. Seibert
(2004) 542 U.S. 600, 616, the circumstances
in the instant case need not “be seen as
challenging the comprehensibility and
efficacy of the Miranda warnings to the point
that a reasonable person in the suspect’s shoes
would not have understood them to convey a
message that [he] retained a choice about
continuing to talk.” (Id. at p. 616.)

(Alteration in original.) The first sentence of the paragraph
recites the Court of Appeal’s conclusion that Reyes’s
postwarning statement was “volitional.” The second sentence
states that, unlike in Seibert, Reyes “retained a choice about
continuing to talk.” That is, in the Court of Appeal’s view,
because Reyes “retained a choice,” his “continuing to talk”
was voluntary.

The clearly established rule under Seibert is that if
officers deliberately employ the two-step technique employed
in Seibert, and if insufficient curative measures are taken to
 REYES V. LEWIS 31

ensure that later Miranda warnings are genuinely understood,
any warned statement thereby obtained must be suppressed,
even if the statement is voluntary. Contrary to Seibert, the
Court of Appeal did not address the question whether the
officers deliberately employed the two-step technique. Also
contrary to Seibert, the Court of Appeal did not address the
adequacy, or even existence, of any “curative measures.”
Instead, the Court of Appeal analyzed at length Reyes’s post-
polygraph statement at the San Bernardino sheriff’s station
and concluded that because it was voluntary his subsequent
warned statement at the Riverside police station was also
voluntary.

Under the circumstances of this case—where police
interrogated fifteen-year-old Reyes over the course of two
days; where on the first day at the Riverside police station
they conducted a two-hour unwarned interrogation; where on
the second day at the San Bernardino sheriff’s station they
obtained a confession during an unwarned interrogation
following an unwarned polygraph test; and where they
transported Reyes back to the Riverside police station and
obtained a postwarning confession “clarifying” what he had
stated at the sheriff’s station—a Seibert analysis was clearly
required.

Contrary to Seibert, the Court of Appeal did not conduct
such an analysis. Instead, the Court of Appeal examined only
whether Reyes’s statement in his post-polygraph interrogation
was voluntary. It wrote, as a prelude to its analysis, that the
“operative question” was voluntariness: “We thus will
consider whether the trial court erred in finding that
defendant’s statements were voluntary.” Upon determining
that Reyes’s unwarned statements were voluntary, the Court
of Appeal concluded that Reyes’s later warned statement at
32 REYES V. LEWIS

the Riverside police station was necessarily “likewise
volitional.” The Court of Appeal then affirmed the trial
court’s decision not to suppress Reyes’s postwarning
statement. The Court of Appeal thus addressed, and treated
as dispositive, the question whether Reyes’s postwarning
statement was voluntary, which is precisely the question that
is irrelevant under Seibert.

We therefore conclude that the Court of Appeal’s decision
was “contrary to . . . clearly established Federal law, as
determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1).
Because its decision was “contrary to” Seibert, we owe it no
deference.

On habeas review, the federal magistrate judge
recommended denying relief, rejecting in a footnote Reyes’s
argument under Seibert. The magistrate judge correctly
understood the rule in Seibert but concluded without analysis
of the evidence that the law enforcement officers in this case
had not deliberately employed the two-step interrogation
process. Deliberateness is a factual finding that we review
for clear error. United States v. Narvaez-Gomez, 489 F.3d
970, 974 (9th Cir. 2007); McClure v. Thompson, 323 F.3d
1233, 1240 (9th Cir. 2003) (applying clear error review to
findings of fact made by a district court on AEDPA review).
Clear error review requires us to form a “definite and firm
conviction that a mistake has been committed.” Easley v.
Cromartie, 532 U.S. 234, 242 (2001) (internal quotation
marks omitted). A more searching review is appropriate
where the trial court’s decision was based on documents, as
it was here, rather than credibility evaluations. See id. at 243
(“[T]he key evidence consisted primarily of documents and
expert testimony. Credibility determinations played a minor
role. Accordingly, we find that an extensive review of the
 REYES V. LEWIS 33

District Court’s findings, for clear error, is warranted.”); Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
500–01 (1984) (“The same ‘clearly erroneous’ standard
applies to findings based on documentary evidence as to
those based entirely on oral testimony, but the presumption
has lesser force in the former situation than in the latter.”
(internal citation omitted)).

We conclude that the magistrate judge, and the district
court in entering judgment based on the recommendation of
the magistrate judge, clearly erred. We wrote in Williams
that evidence of deliberateness in a Seibert inquiry can be
either objective or subjective. “[I]n determining whether the
interrogator deliberately withheld the Miranda warning,
courts should consider whether objective evidence and any
available subjective evidence, such as an officer’s testimony,
support an inference that the two-step interrogation procedure
was used to undermine the Miranda warning.” 435 F.3d at
1158. The absence of direct evidence of subjective intent is
not dispositive. Capers, 627 F.3d at 479. As we have
recognized, “the most plausible reason” for delaying Miranda
warnings until after a suspect has confessed “is an illegitimate
one, which is the interrogator’s desire to weaken the
warning’s effectiveness,” and “‘the intent of the officer will
rarely be as candidly admitted as it was [in Seibert].’”
Williams, 435 F.3d at 1158–59 (quoting Seibert, 542 U.S. at
617 n.6 (Souter, J., plurality opinion)) (emphasis in original).

In Williams, we provided a nonexhaustive list of
probative objective evidence. Such evidence includes “the
timing, setting and completeness of the prewarning
interrogation, the continuity of police personnel and the
overlapping content of the pre- and postwarning statements.”
Id. at 1159; see also United States v. Barnes, 713 F.3d 1200,
34 REYES V. LEWIS

1205 (9th Cir. 2013) (per curiam) (examining the record for
objective evidence under Seibert); Capers, 627 F.3d at 479
(“[W]e join our sister circuits in concluding that a court
should review the totality of the objective and subjective
evidence surrounding the interrogations in order to determine
deliberateness, with a recognition that in most instances the
inquiry will rely heavily, if not entirely, upon objective
evidence.”); United States v. Nunez-Sanchez, 478 F.3d 663,
668–69 (5th Cir. 2007) (examining the totality of the
circumstances to infer deliberateness); United States v. Street,
472 F.3d 1298, 1314 (11th Cir. 2006) (holding that the
deliberateness determination requires an evaluation of “the
totality of the circumstances, including ‘the timing, setting
and completeness of the prewarning interrogation, the
continuity of police personnel and the overlapping content of
the pre- and post-warning statements’” (quoting Williams,
435 F.3d at 1159)); United States v. Briones, 390 F.3d 610,
614 (8th Cir. 2004).

Based on the objective evidence in this case, we conclude
that Brandt and his fellow officers deliberately employed the
two-step interrogation technique condemned in Seibert, and
that the magistrate judge and the district court clearly erred in
concluding otherwise. Reyes first confessed in the unwarned
interrogation conducted by Brandt and Medici at the San
Bernardino sheriff’s station on February 10, after Heard told
Reyes that he had failed the polygraph test. That unwarned
interrogation, as well as the unwarned interrogation the
previous day at the Riverside police station, were, like the
interrogation in Seibert, “systematic, exhaustive, and
managed with psychological skill.” Seibert, 542 U.S. at 616.

In the unwarned interrogation at the San Bernardino
sheriff’s station, Brandt and Medici obtained statements from
 REYES V. LEWIS 35

Reyes admitting that he shot Ochoa and establishing the
outline of the events that occurred that afternoon; information
about how Reyes obtained the gun used in the shooting and
what happened to it afterward; and details about the shooting.
In the warned interrogation that followed, Reyes provided
essentially the same information.

The three Riverside police officers involved in the case—
Brandt, Wheeler and Medici—were all experienced officers.
Cf. Capers, 627 F.3d at 481 (“Inexperience, while not a
legitimate excuse for postponing a Miranda warning,
nevertheless may save a confession from exclusion under
Seibert.”). All three were homicide detectives. At the time
of the interrogations, Brandt had been a police officer in
California for twelve years and a homicide detective for the
last four. The tenure of Wheeler and Medici is not specified
in the record, but we may infer from their ranks that they both
had substantial experience.

Brandt did not take “curative measures” to ensure that
Reyes understood “the import and effect of the Miranda
warning and of the Miranda waiver.” Seibert, 542 U.S. at
622 (Kennedy, J., concurring in the judgment). Indeed, he
did quite the opposite. Brandt was the lead investigator. He
was involved in the case from beginning to end. Brandt
asked Reyes to accompany him to the Riverside police station
on the morning of February 9 after the SWAT team had
entered his aunt’s house and placed him in handcuffs. Brandt
and Wheeler questioned Reyes at the police station for about
two hours that day. During that interview, Brandt asked
Reyes if he would be willing to take a polygraph
examination. Brandt picked Reyes up at his mother’s house
the next morning and took him to the San Bernardino
sheriff’s station for the examination. After Heard told Reyes
36 REYES V. LEWIS

that he had failed the polygraph examination, Brandt and
Medici came into the room and took over from Heard.
During the unwarned interview at the sheriff’s station on
February 10, Brandt and Medici obtained a detailed
confession from Reyes. After obtaining the confession,
Brandt drove Reyes directly to the Riverside police station,
where he and Wheeler had questioned him the day before.
On arrival at the Riverside station, Brandt and Medici
questioned Reyes again. At the beginning of this interview,
Brandt finally provided Miranda warnings. During this
interview, Reyes gave to Brandt and Medici the same detailed
confessions he had just given.

Brandt and Medici had obtained the incriminating
information from Reyes very early in the unwarned interview
at the sheriff’s station, on the seventh page of the transcript.
Yet they continued questioning and talking to Reyes for
another thirty-five pages. They did so in a
nonconfrontational, sympathetic way, with the result that
Reyes was made to feel sufficiently comfortable that he
talked about his family’s Christmas rituals and laughed when
Brandt said he could not stay up late enough to open presents.
At the end of the interview, Reyes even asked Brandt and
Medici not to tell his mother what he had confessed to them:
“It’ll be cool like if you guys don’t tell my Mom.”

At the beginning of the follow-on interview at the
Riverside police station, Brandt gave Reyes the Miranda
warnings, as recounted above. But, as is evident from the
transcript, he played down their importance. He said he
wanted “just to clarify stuff,” suggesting by his use of the
word “clarify” that the “stuff” had already been conveyed in
the earlier interview, and that the only purpose of the later
interview was clarification. Brandt then said he wanted to
 REYES V. LEWIS 37

“read you your rights” because “you’ve been sitting in that
room and the door was locked and you’re not free to leave.”
To a reasonable person not trained in the law, let alone a
fifteen-year-old high school freshman, these stated reasons
were hardly an effective means of conveying the fact that the
warning he was about to give could mean the difference
between serving life in prison and going home that night.

After Brandt read the Miranda warnings, he said, “Do
you understand each of these rights that I’ve explained to
you? Yeah? OK. Can we talk about the stuff we talked
about earlier today? Is that a yes?” While giving the
Miranda warnings, Brandt did not pause to ask “Is that a
yes?” after asking if Reyes understood “each of the rights”
listed. Only after the Miranda warnings had been completed
and after Brandt asked whether “we [can] talk about the stuff
we talked about earlier today” did Brandt finally ask “Is that
a yes?” and wait for a response. In contrast to the
interrogation in Seibert, Brandt did not ask Reyes for a signed
waiver of rights or a signed acknowledgment of having read
and understood the Miranda warnings.

The psychological, spatial, and temporal break between
the unwarned and warned interrogations was not enough to
cure the violation. Perhaps most important, Brandt had been
a continuous presence throughout. He and Wheeler were the
two questioners in the unwarned interrogation on February 9;
he was the primary questioner in both the unwarned and
warned interrogations on February 10; and he had personally
driven Reyes on February 9 and 10, including the short trip
between the sheriff’s station and the police station on
February 10. Further, although the unwarned February 10
interrogation took place at the San Bernardino sheriff’s
station and the warned interrogation took place at the
38 REYES V. LEWIS

Riverside police station, the warned interrogation was
conducted in a familiar place where Reyes had been
questioned by Brandt the previous day. The record does not
tell us the driving distance and time between the sheriff’s
station and the Riverside police station, but a map of the area
indicates that it was no more than fifteen miles. The timeline
for the events on February 10, described above, indicated that
the driving time was not likely to have been more than about
thirty minutes. This case is quite unlike Bobby v. Dixon,
132 S. Ct. 26, 32 (2011) (per curiam), in which there was a
four-hour gap, during which the defendant was transported
from the police station to a separate jail and back, and during
which the defendant spoke with his lawyer and learned
material facts about the ongoing investigation. See also
Capers, 627 F.3d at 484 (holding that a ninety-minute break
in time between interrogations was not curative in part
because police personnel were consistent and “both
[interrogations] occurred while Capers remained in handcuffs
and in settings that clearly established the authoritative nature
of the questioning”).

B. “Unreasonable Determination of the Facts”

Our concurring colleague reads the Court of Appeal’s
decision as understanding and applying Seibert. In his view,
the Court of Appeal’s quotation from Justice Souter’s
plurality opinion (in the paragraph we quoted above) shows
that it understood Seibert, and that the Court of Appeal
viewed the question before it to be whether Brandt and his
fellow officers took sufficient curative measures to ensure
that the Miranda warnings given at the Riverside police
station were effective. Thus, in the view of our concurring
colleague, the Court of Appeal’s decision was not “contrary
to” Seibert. But our colleague nonetheless agrees with the
 REYES V. LEWIS 39

result we reach in this case. In his view, even under
AEDPA’s deferential standard, we must grant habeas relief
because the Court of Appeal’s conclusion that sufficient
curative measures were taken is an “unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). See
Concurrence at 44–45.

For the reason given above, we disagree with our
concurring colleague on the question whether the Court of
Appeal’s decision was “contrary to” Seibert. However, we
note that, although we do not need to reach the question
whether the Court of Appeal’s decision rests on an
“unreasonable determination of the facts,” we entirely agree
with him on that question. It is readily apparent, on the
factual record of this case, that Brandt and his fellow officers
did not take “curative measures” that would “ensure that a
reasonable person in [Reyes’s] situation would understand the
import and effect of the Miranda warning and of the Miranda
waiver.” 542 U.S. at 622 (Kennedy, J., concurring). Indeed,
as described above, far from taking “curative measures,” they
took affirmative steps to ensure that Reyes did not
“understand the import and effect” of the Miranda warning
he was finally given at the Riverside police station.

Conclusion

The California Court of Appeal applied a rule that was
contrary to federal law as clearly established by the Supreme
Court in Seibert when it concluded that Reyes’s postwarning
confession was admissible solely on the ground that it was
voluntary. We hold that police officers deliberately
employed a two-step interrogation technique, and that they
did not take appropriate “curative measures,” in violation of
40 REYES V. LEWIS

Seibert. We therefore hold that Reyes’s postwarning
confession should have been suppressed. Because the state
did not argue harmless error in this court or the district court,
that defense is waived. See United States v. Vallejo, 237 F.3d
1008, 1026 (9th Cir. 2001). Accordingly, we reverse the
district court’s denial of Reyes’s petition for a writ of habeas
corpus and remand with instructions to grant the writ unless
Reyes is retried within a reasonable time, not to exceed 180
days.

REVERSED and REMANDED.

SINGLETON, Senior 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 Antiterrorism 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
(2004), as clearly established federal law at the time the
 REYES V. LEWIS 41

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 holding obtaining five votes). In the majority’s
view, the California Court of Appeal recognized Seibert as
controlling but unreasonably interpreted it, effectively
ignoring Seibert and deciding the case under the prior law set
out in Oregon v. Elstad, 470 U.S. 298 (1985). The majority
concludes that, since the California court failed to apply
clearly established law, we may withhold any deference and
exercise our independent judgment in reviewing the
California Court of Appeal’s decision de novo.

I disagree. My review of the record leads me to conclude
that the California Court of Appeal’s conclusions of law are
in conformity with Seibert and Justice Kennedy’s
concurrence. In my view, the state court’s approach to the
law is sound, but its finding of facts are unreasonable in
context. I therefore, on this alternate ground, join in this
Court’s judgment. My reasons are as follows.

In reaching a contrary view, the majority focuses
exclusively on one part of Justice Kennedy’s concurrence.
Seibert addresses what we have termed a two-step
interrogation leading to a confession. The first part of the
interrogation is unwarned. Once the suspect confesses,
Miranda warnings are given, and the interrogation resumes.
Typically, the suspect confirms his confession. In practice,
the earlier confession is suppressed, but following Elstad, the
subsequent post-warning statement is allowed into evidence
if it is voluntary. Seibert modified Elstad in cases such as
this. The opinion was fragmented. Justice Souter wrote an
42 REYES V. LEWIS

opinion for a plurality of four justices. Justice Kennedy
separately concurred, arguably on a more limited basis, and
Justice O’Connor wrote a dissent in which three other justices
joined. The majority and I agree that Justice Kennedy’s
opinion provides the holding of Seibert. We disagree on how
Seibert should be applied to this case.

In my view, Justice Kennedy adopts all of Justice Souter’s
plurality opinion but imposes a limitation. Rightly
understood, Justice Kennedy’s opinion adopts a two-part test
for determining the validity of a confession where the police
use a two-step approach in their interrogation of a suspect.
The first prong, which I will call the Kennedy prong, asks
whether the two-step procedure was chosen intentionally in
order to render subsequent Miranda warnings ineffective.
The second prong, which I will call the Souter prong, asks if
the two-step process, whether or not intentional, rendered the
subsequent warnings ineffective. For Justice Kennedy, both
prongs must be satisfied in order to create a Siebert violation
and take the case out of Oregon v. Elstad. Since the test has
two prongs, it is analogous to the Strickland test for
determining ineffective assistance of counsel.1 Like that test,
a reviewing court should be able to look to either prong first,
and, if that prong is not satisfied, there is no need to address
the other prong. See Pearson v. Callahan, 555 U.S. 223, 241
(2009). Viewed in this light, the California Court of Appeal’s
decision is within the law. That court quoted Justice Souter
directly for the second prong of the test and concluded that
nothing in the record of the interrogation “challenged the
comprehensibility and efficacy of the Miranda warnings to
the point that a reasonable person in the suspect’s shoes

1
Strickland v. Washington, 466 U.S. 668 (1984).
 REYES V. LEWIS 43

would not have understood them to convey a message that
[he] retained a choice about continuing to talk.”

Justice Kennedy’s test requires that any two-step
procedure must be intentionally motivated to undermine
Miranda. Justice Souter rejects reference to the police intent
and focuses only on whether the process itself challenged the
comprehensibility and effectiveness of the Miranda warnings.
Thus, if as the California Court of Appeal found, Reyes
understood at the time of the second stage of the interview
that he retained a choice about whether to talk, his decision to
talk was consistent with Seibert, and there was no need for
the Court of Appeal to address the first prong of the test and
determine whether the police intended to nullify the Miranda
warnings.

The Court of Appeal did not separately address the first
prong of the test, and so by analogy to Strickland, we may
review that prong de novo and exercise independent
judgment.2 See Porter v. McCollum, 558 U.S. 30, 39 (2009);
Mann v. Ryan, 774 F.3d 1203, 1215 (9th Cir. 2014)
(“Because the state post-conviction court did not reach the
deficiency prong of the Strickland analysis, our review of this
prong is not circumscribed by AEDPA.”). I agree with the
majority that, under the facts of this case, the use of the two-
step procedure was a conscious effort to undermine Miranda.

2
It is clear that the Court of Appeal did not think that the procedure
followed undermined the effectiveness of the mid-stream Miranda
warnings. It is not clear that the Court of Appeal considered whether the
procedure was chosen to undermine Miranda. Even if I were to assume
that the Court of Appeal found no intent, sub silentio, requiring deference
I would still conclude under Williams that the procedure was chosen
intentionally. See Williams, 435 F.3d at 1160 (discussing how to prove a
deliberate choice of procedure).
44 REYES V. LEWIS

See Williams, 435 F.3d at 1158–60 (discussing how a court
should determine whether an interrogation was deliberately
used to undermine Miranda).

The second prong of the test was addressed by the Court
of Appeal, and we must grant deference and may only reject
the finding if it was “based on an unreasonable determination
of the facts in light of the evidence presented in the state
court proceeding.” 28 U.S.C. § 2254 (d)(2).

The majority points out that the Court of Appeal did not
explain its factual finding that the mid-stream Miranda
warning was not undermined by the interrogation procedure
chosen by the police. In such a case, we must look to all of
the relevant evidence to determine if the fact finding is
reasonably supported. See Delgado v. Lewis, 223 F.3d 976,
982 (9th Cir. 2000) (“Federal habeas review is not de novo
when the state court does not supply reasoning for its
decision, but an independent review of the record is required
to determine whether the state court clearly erred in its
application of controlling federal law.”). Reyes has a heavy
burden to establish that a state court fact finding is
unreasonable. See Burt v. Titlow, __ U.S. __, 134 S. Ct. 10,
15–16 (2013). I am satisfied that he has sustained that burden
here.

The majority has summarized all of the relevant evidence,
and it need not be repeated here. Guided by Williams
regarding a determination of the effectiveness of mid-stream
Miranda warnings, see Williams, 435 F.3d at 1160–62, I do
not believe that there is substantial evidence that would
support an inference that the warnings given to Reyes were
effective at the time they were given. There is no evidence of
the corrective measures identified by Justice Kennedy.
 REYES V. LEWIS 45

Turning to the factors considered relevant by the plurality:
1) the pre-warning interrogation was complete and detailed,
consuming many hours; 2) the two rounds of interrogation
overlapped; 3) the two rounds of interrogation were close in
time; 4) there was a continuity of police personnel; and, most
importantly, 5) the interrogator’s questions treated the second
round of interrogation as continuous with the first.

Viewed in light of the totality of the circumstances, there
is no evidence that would permit a finding that the two-step
interrogation in this case did not undermine Miranda and lead
to an involuntary confession.