Theodore Stevens v. Robert Legrand

*499 MEMORANDUM * Theodore Stevens appeals the district court’s denial of his habeas corpus petition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The Nevada Supreme Court’s determination that Officer Hodgkinson and Officer Sauchak did not deliberately employ a two-step strategy to undermine the Miranda warning given to Stevens, was not an unreasonable determination of the facts. The trial court made this determination after holding an evidentiary hearing, and its conclusion is supported by the record. Therefore, even if Stevens’s first unwarned confession was a result of custodial interrogation, the Nevada Supreme Court’s decision that the trial court did not err in denying Stevens’s motion to suppress his second, warned confession was not contrary to or an unreasonable application of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (Kennedy, J., concurring). 1 Nor was the Nevada Supreme Court’s denial of Stevens’s claim that his confession was involuntary contrary to or an unreasonable application of clearly established Supreme Court precedent. Based on the evidence in the record, the Nevada Supreme Court could have reasonably determined that Stevens’s waiver was voluntary and was made without coercion and with full awareness of the nature of his rights and the consequences of waiving those rights. See Berghuis v. Thompkins, 560 U.S. 370, 382-83, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (citing Moran v. Bur-bine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)); see also Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). AFFIRMED. Footnotes [*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] We need not reach the question whether United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), requires us to rethink our conclusion that Justice Kennedy’s concurrence is the controlling opinion in Seibert, and thus clearly established Supreme Court precedent, see Reyes v. Lewis, 798 F.3d 815, 828-29 (9th Cir. 2015), because even if "we are bound only by the result” of Seibert, Davis, at 1016, the Nevada Supreme Court’s decision would not be contrary to or an unreasonable application of the result in Seibert.