Arie Redeker v. D. Neven

FILED NOT FOR PUBLICATION MAR 21 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIE ROBERT REDEKER, No. 17-16917

Petitioner-Appellant, D.C. No. 2:12-cv-00397-APG-GWF v.

D. W. NEVEN; ATTORNEY GENERAL MEMORANDUM* FOR THE STATE OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Argued and Submitted February 14, 2019 San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.

Petitioner Arie Redeker was convicted in Nevada state court of second degree murder and now appeals the district court’s denial of his habeas petition after it found Redeker was not in custody for the purposes of a possible Miranda

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

violation, and that even if Redeker had been in custody, he failed to establish any constitutional violation.

As a preliminary matter, the Government argues that the Nevada Supreme Court’s decision was entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We need not decide that issue because the district court, exercising de novo review, decided there was no custodial interrogation, so the standard of review is not material in this case. Also, we need not decide whether Redeker was in custody during the hours he spent in his front yard as argued by Redeker, or under arrest in the police station, as urged by the dissenting opinion in the Nevada Supreme Court, because even assuming there was a Miranda violation before Redeker was given his Miranda rights, there was no prejudice.

Redeker voluntarily admitted to the crime after being administered his Miranda warnings. Detective Hardy took the necessary steps to ensure that Redeker understood the import and effect of the Miranda warning. See Missouri v. Seibert, 542 U.S. 600, 622 (2004) (Kennedy, J., concurring); see also United States v. Williams, 435 F.3d 1148, 1157–58 (9th Cir. 2006) (holding that Justice Kennedy’s concurring opinion sets forth the controlling rule in Seibert). Redeker’s unambiguous, affirmative answers demonstrate he recognized the import and effect *3 of the Miranda warning. See Reyes v. Lewis, 833 F.3d 1001, 1027 (9th Cir. 2016). Thus, the district court correctly concluded that Redeker’s post-Miranda statements were admissible because Detective Hardy did not deliberately withhold the Miranda warning, and Redeker voluntarily admitted to the crime. See Williams, 435 F.3d at 1158.

AFFIRMED.