Thompson v. Runnels

• Decision Date: 09 June 2011
• Docket Number: No. 08–16186.,08–16186.
• Citation: 657 F.3d 784,11 Cal. Daily Op. Serv. 7019,2011 Daily Journal D.A.R. 8451
• Parties: Antwion E. THOMPSON, Petitioner–Appellant,v.D.L. RUNNELS, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

657 F.3d 784

11 Cal. Daily Op. Serv. 7019

2011 Daily Journal D.A.R. 8451

Antwion E. THOMPSON, Petitioner–Appellant,

v.D.L. RUNNELS, Warden, Respondent–Appellee.

No. 08–16186.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 2010.Filed June 9, 2011.

OPINION TEXT STARTS HEREJ. Bradley O'Connell, First District Appellate Project, San Francisco, CA, for the appellant.Edmund G. Brown, Gerald A. Engler, Peggy S. Ruffra and Sharon G. Birenbaum, Office of the Attorney General of California, San Francisco, CA, for the appellees.Appeal from the United States District Court for the Northern District of California, Jeremy D. Fogel, United States District Judge, Presiding. D.C. No. 5:05–cv–01264–JF.Before: ALFRED T. GOODWIN, MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.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. R.App. 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The majority opinion and dissent filed in this case on September 8, 2010 are withdrawn. The opinion and dissent filed with this order replace the withdrawn opinion and dissent.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 being given the Miranda warnings, he voluntarily participated in a videotaped reenactment of the crime at his girlfriend's house. The California state courts consistently denied his challenges to the admission of his post- Miranda statements as did the federal district court. However, a majority of the three-judge panel, over Judge Ikuta's insightful dissent, applies the wrong federal law, improperly reviews the case de novo, and based on its interpretation of the underlying facts, orders Thompson's conviction vacated.

We should have reheard this case en banc for two reasons. First, the panel erred in concluding that Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), which was not decided until five months after the California Court of Appeal decision, was the “clearly established federal law” that the state court should have applied. Second, the majority fails to adhere to our limited role in reviewing state criminal convictions under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 by reviewing the case de novo. See Harrington v. Richter, 562 U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). In doing so, the panel majority misreads the Supreme Court's opinion in Seibert so as to eviscerate its opinion in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

1. Although the extent to which California asserted that Elstad, rather than Seibert, was the clearly established Federal law for the purpose of reviewing this case under AEDPA is admittedly arguable, there can be no question that the panel held that Seibert was clearly established Federal law. Its opinion states:

The California Court of Appeals, in the last reasoned state court decision on Thompson's Miranda claim, did not apply the rule announced in Seibert. Rather, based on its reading of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the state appellate court ruled that “so long as the earlier [unwarned confession] was not involuntary due to police coercion, [a] subsequent voluntary, warned statement is admissible.” The state court assumed, therefore, that deliberately delayed Miranda warnings are always effective absent actual police coercion. Because this “ ‘rule ... contradicts the governing law set forth [by the Supreme Court]’ ” in Seibert, see Rios v. Garcia, 390 F.3d 1082, 1084 (9th Cir.2004) (quoting Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), the state court's decision was “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Thompson v. Runnel, 621 F.3d 1007, 1016 (9th Cir.2010) (parallel citations omitted).¹

The Supreme Court, however, has explained that “clearly established Federal law, as determined by the Supreme Court of the United States” means “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (O'Connor, J, writing for the Court). We have subsequently recognized that “[c]learly established Federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir.2009) (quoting Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). Elstad had been decided when the California Court of Appeal issued its decision, but Seibert had not.²

Arguably, Justice Stevens' opinion in Williams is a potential source of confusion as to the proper temporal cutoff because it announces a rule different than the rule announced by Justice O'Connor in the same opinion. ³ Early in Section III of his opinion, he states that “[t]he threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams, 529 U.S. at 390, 120 S.Ct. 1495.

Whatever confusion that might have been born out of Williams should have been laid to rest by the Supreme Court's subsequent opinions. Justice O'Connor's “as of the time of the relevant state-court decision” version has been used by the Supreme Court every time it has stated the rule since Williams was decided. See Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (“ ‘clearly established Federal law’ in § 2254(d)(1) ‘refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision’ ”); Yarborough v. Alvarado, 541 U.S. 652, 660–61, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“clearly established law as determined by this Court ‘refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision’ ”); Andrade, 538 U.S. at 71, 123 S.Ct. 1166 (“Section 2254(d)(1)'s ‘clearly established’ phrase ‘refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision.’ ”). Indeed, Andrade goes even further, explaining “[i]n other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. at 71–72, 123 S.Ct. 1166.

If there was any life left in the majority's perspective as to the proper temporal cutoff after those cases, the Court put a dagger through its heart in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). There, the Court reversed an en banc panel of the Ninth Circuit which had approved the district court's use of an evidentiary hearing to supplement the record on habeas review. Id. at 1397. The Court explained:

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.

Id. at 1398 (emphasis added). It also follows that the law on review is limited to the federal law in existence at that time. To drive the point home further, the Court explained that its “cases emphasize that review under § 2254(d)(1) focuses on what a state court knew and did. State-court decisions are measured against this Court's precedents as of ‘the time the state court renders its decision.’ ” Id. at 1399(quoting Andrade, 538 U.S. at 71–72, 123 S.Ct. 1166). Indeed, “[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.” Id. It would be no less strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law that was not yet in existence. Moreover, the Court explained:

What makes the consideration of new evidence strange is not how “different” the task would be, but rather the notion that a state court can be deemed to have unreasonably applied federal law to evidence it did not even know existed. We cannot comprehend how exactly a state court would have any control over its application of law to matters beyond its knowledge.

Id. at 1399 n. 3. Similarly, it is incomprehensible how exactly a state court could have any control over its application of Supreme Court decisions that have not yet been handed down. In other words, the state court need not be clairvoyant to withstand AEDPA review.

Contrary to this clear weight of Supreme Court authority, the...