Antwion Thompson v. D. Runnel, et al

Filing

FILED OPINION (ALFRED T. GOODWIN, MARSHA S. BERZON and SANDRA S. IKUTA) AFFIRMED. Judge: ATG Concurring, Judge: MSB Dissenting, Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [8485529]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTWION E. THOMPSON ,
Petitioner-Appellant,

No. 08-16186

v.

D.C. No.
5:05-cv-01264JF

D. L. RUNNELS, Warden; ATTORNEY
GENERAL’S OFFICE ,
Respondents-Appellees.*

OPINION

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
May 11, 2012—Pasadena, California
Filed January 24, 2013
Before: Alfred T. Goodwin, Marsha S. Berzon,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Goodwin;
Dissent by Judge Berzon

*

The caption has been updated to correct the spelling of Runnels’s
name.

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SUMMARY**

Habeas Corpus
Affirming the district court’s denial of a 28 U.S.C. § 2254
habeas corpus petition challenging the admission of petitioner
Thompson’s confessions to the murder of his girlfriend, the
panel held that the state court reasonably denied relief based
on Oregon v. Elstad, 470 U.S. 298 (1985), which was clearly
established law as of the time of the final state court
adjudication on the merits.
At the time of the state court adjudication on the merits,
the United State Supreme Court was considering but had not
yet decided Missouri v. Siebert, 542 U.S. 60 (2004)
(involving delayed Miranda warning during a deliberate twostep interrogation process). The panel was not persuaded by
Thompson’s contention that the state had waived its argument
that only Elstad was the relevant clearly established law
because, to determine whether the state court decision
violated the Anti-Terrorism and Effective Death Penalty Act,
the panel must first identify and apply the correct governing
law. The panel also declined to stay federal proceedings to
allow Thompson to seek reconsideration of his Miranda
claim in the state court in light of Siebert, because Thompson
could have made his Siebert claim after Siebert was
announced, but chose not to do so.
Judge Goodwin specially concurred, observing that the
majority and dissenting opinions demonstrate that the present
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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law on the validity of two-stage custodial interrogation is far
from “clearly established.”
Judge Berzon dissented, because the majority opinion
misapplies the Supreme Court’s recent decisions on waiver
and forfeiture in the habeas context and “upends the
fundamental principle of civil litigation that litigants are
ordinarily expected to raise open questions if they want them
decided.” She would evaluate the Miranda claim under
Seibert and conclude that the state court applied a rule
contrary to clearly established federal law, rendering
Thompson’s confession inadmissible.

COUNSEL
J. Bradley O’Connell, Assistant Director, First District
Appellate Project, San Francisco, California, for Appellant.
Peggy S. Ruffra, Supervising Deputy Attorney General,
Office of the Attorney General, San Francisco, California, for
Appellee.

OPINION
IKUTA, Circuit Judge:
This appeal requires us to determine whether the
California Court of Appeal unreasonably applied “clearly
established Federal law, as determined by the Supreme
Court,” 28 U.S.C. § 2254(d)(1), when it denied Antwion
Thompson’s motion to suppress his multiple confessions to
the murder of his girlfriend. To resolve this issue, we must

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first determine whether we measure the state court’s opinion
against Oregon v. Elstad, 470 U.S. 298 (1985), which was
decided before the California Court of Appeal issued its
opinion, or Missouri v. Seibert, 542 U.S. 600 (2004), which
was decided after that date. In light of the Court’s recent
decision in Greene v. Fisher, 132 S. Ct. 38 (2011), which
unanimously held that clearly established law must be
assessed as of the time of the final state court adjudication on
the merits, id. at 44, we hold that Elstad is the relevant
Supreme Court precedent. Because the California Court of
Appeal reasonably applied Elstad in holding that Thompson’s
confessions were admissible, we affirm the district court’s
denial of Thompson’s habeas petition.
I
We begin with the facts found by the California Court of
Appeal, which are presumed to be correct. See 28 U.S.C.
§ 2254(e)(1).
In June 1998, appellant Thompson was 18
years old and lived with his father, Edward
Thompson, in Bay point; the victim, Arie
Bivins, was 17 years old and lived with her
parents in Pittsburg. Thompson and Bivins
were boyfriend and girlfriend. They had
begun dating in 1997. Their relationship had
deteriorated by spring 1998; Bivins wanted to
break up with Thompson, who was jealous
and controlling. On June 21, 1998, Thompson
eavesdropped as Bivins told a friend that she
was interested in another guy.

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At approximately 1:30 p.m. on June 22,
1998, Edward Thompson saw appellant
Thompson and Bivins talking in Bivins’s car
outside Thompson’s home.
Appellant
Thompson subsequently came inside and then
left again around 2:00 p.m. without saying
where he was going. At about 4:00 p.m.,
Thompson returned home and convinced his
father to drive him to Bivins’s house,
explaining that he was concerned about Bivins
because he had been unable to reach her by
telephone. When appellant and his father
arrived at Bivins’s house, appellant
approached the front door and his father
waited in the car. Edward Thompson saw
appellant knock, open the front door, and then
become wildly upset. Edward Thompson
approached and saw Bivins on the floor by the
front door with a hole in her chest and cuts on
her chest and neck. He went to a neighbor’s
house and called 911.
Paramedics
subsequently confirmed that Bivins was dead.
The cause of death was a stab wound to the
chest.
When Pittsburg police officer Carl Webb
arrived at Bivins’s house at 4:22 p.m. on June
22, 1998, he observed Thompson in the
driveway jumping up and down, running
around, and flailing his arms. Officer Eric
Solzman arrived at the scene and Webb told
him to “hang on” to Thompson because they
needed to talk to him. Solzman approached
Thompson, who told Solzman that he did not

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feel well. Solzman asked Thompson whether
he wanted to lie in the back of Solzman’s
patrol car, because it was a warm day and the
car was air conditioned, and Thompson
agreed. Thompson never asked to get out of
the patrol car, and Solzman never told
Thompson he had to stay.
Although
Thompson was not free to leave in Solzman’s
mind, he never conveyed that to Thompson.
Pittsburg police homicide inspector John
Conaty arrived at the scene at about 4:45 p.m.
Thompson was in Solzman’s car and appeared
to be sleeping. Conaty talked to Edward
Thompson, who told him about driving his
son to the house and discovering the body.
Conaty and his partner, Inspector Giacomelli,
then approached appellant Thompson, who
appeared to be waking up when they opened
the door. Thompson said he was “okay” and
stepped out of the car to talk to the inspectors.
Conaty asked Thompson if he would be
willing to go to the police station to talk about
the circumstances of finding Bivins’s body.
Thompson said he just wanted to go home and
sleep. Thompson agreed to go to the station
after Conaty explained that his assistance
could be critical to the investigation.
Solzman took Thompson to the police
station at about 5:30 p.m.
He never
handcuffed or pat-searched Thompson. He
put Thompson in the station’s break room,
which had a couch and a television. He asked

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Thompson if he needed food or water. He
told Thompson to relax and that he could
watch television; Thompson laid down on the
couch and started to watch television.
Solzman told Thompson he would be outside
if Thompson needed anything or had any
questions. Solzman sat at a desk in the
hallway to write a report; he could see
Thompson in the break room through the open
door. Thompson was not handcuffed; he
never asked to leave, never said he was cold,
and never asked for food or water. Solzman
never told him he was not free to leave.
Thompson slept most of the time until the
inspectors arrived for him, about five and a
half hours later.
Inspectors Conaty and Giacomelli
approached Thompson in the station break
room at about 11:00 or 11:30 p.m. Thompson
said he was feeling “okay.”
Conaty
apologized for keeping Thompson waiting
and asked if they could talk to him down the
hall; Thompson agreed. Thompson did not
indicate that he wanted to leave, that he did
not want to talk to them, or that he wanted to
talk to his father. Thompson was not
handcuffed, and both inspectors were wearing
suits and did not have guns. The inspectors
took Thompson to a small interview room
with three chairs. The door was closed but
not locked. When Thompson said that the
room was cold, Conaty turned on the heater.

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The questioning, which was videotaped,
lasted about two hours. At the outset,
Thompson complained of a headache.
Inspector Conaty asked Thompson, “Do you
feel like doing—can we do this now or would
you rather do this another time? . . . You can
go if you don’t want to do it now.”
Thompson replied, “We can go through it.”
The inspectors then questioned Thompson for
an extended period without providing
Miranda warnings. Over the course of the
questioning, Thompson admitted that he had
been at Bivins’s house immediately before he
asked his father to take him there and that he
had stabbed Bivins by accident during an
argument when Bivins came at him while he
was holding a knife. Subsequently, the
inspectors informed Thompson of his
Miranda rights. Thompson then repeated his
earlier admissions.
At about 2:00 a.m., Thompson led the
inspectors to locations where he had disposed
of the knife and burned his clothes.
Thompson also agreed to participate in a
videotaped reenactment of Bivins’s death.
The reenactment commenced at about 12:47
p.m. on June 23, 1998.

Thompson was charged with murder, mayhem, and
personal deadly weapon use in violation of California Penal

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Code §§ 187, 203, and 12022(b)(1).1 The state trial court
granted in part and denied in part Thompson’s motion to
suppress the statements he provided police on June 22 and
June 23, 1998. The court determined that Thompson was not
in custody at the outset of the interrogation, but that the
interrogation became custodial sometime after Thompson
admitted to visiting Bivins’s house alone but before he
admitted to finding her there alive. The trial court suppressed
all statements made after the interrogation became custodial
and before Miranda warnings were administered. The video
of Thompson’s post-Miranda confession was shown to the
jury, along with the videotaped reenactment of the crime.
Thompson was convicted on all charges and sentenced to
twenty-six years to life.
The California Court of Appeal affirmed the trial court’s
ruling on the suppression motion on February 3, 2004.
Relying mainly on the Supreme Court’s decision in Elstad,
the court held that Thompson’s post-Miranda statements
were admissible because there was no improper police
coercion during the period of unwarned questioning, and
Thompson’s subsequent Miranda waiver was knowingly and
voluntarily made. Thompson argued that Elstad was
distinguishable because the officers in his case deliberately
delayed Miranda warnings until after he had confessed. For
support, Thompson pointed to Missouri v. Seibert, 93 S.W.3d
700 (Mo. 2002), which was then pending before the Supreme
Court. The state court recognized that the Supreme Court
“may clarify or expand upon the Elstad . . . decision[] in one
or more cases currently before it,” including Seibert, but held

1

He was also charged with torture in violation of California Penal Code
§ 206, but that charge was later dismissed.

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that “at present, we are bound by Elstad.” The California
Supreme Court summarily denied review on April 21, 2004.
On June 28, 2004, the Supreme Court issued its opinion
in Seibert. Although there was no majority opinion, five
justices agreed that when officers use a deliberate two-step
interrogation process whereby they withhold Miranda
warnings until after the suspect has confessed, postwarning
statements related to the substance of the prewarning
statements must be excluded unless the midstream Miranda
warnings would apprise a reasonable person in the suspect’s
shoes of his rights. Seibert, 542 U.S. at 621–22 (Kennedy, J.,
concurring); see also United States v. Williams, 435 F.3d
1148, 1157–58 (9th Cir. 2006) (holding that Justice
Kennedy’s concurrence represents the holding of the Court).
Under Seibert, Elstad remains good law and continues to
govern the admissibility of postwarning statements “unless
the deliberate two-step strategy was employed.” Seibert,
542 U.S. at 622 (Kennedy, J., concurring); see also id. at 620
(“Elstad was correct in its reasoning and its result.”);
Williams, 435 F.3d at 1158.
Despite the Court’s issuance of Seibert in June 2004,
Thompson did not seek certiorari in the Supreme Court, nor
did he file a state habeas petition. His conviction thus
became final on July 20, 2004.
The following year, Thompson filed a habeas petition in
federal district court, arguing, among other things, that his
post-Miranda statements should have been excluded under
Seibert. The state pointed out that Seibert was decided after
the state appellate court rejected Thompson’s claims on direct
appeal and argued that, because the applicability of Seibert

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was not fairly presented to the state court, Thompson’s claim
was not properly exhausted under 28 U.S.C. § 2254(b) or (c).
The district court declined to reach the exhaustion issue,
instead holding that Seibert was distinguishable on the merits
because Thompson had not “present[ed] any evidence in
support of his assertion that the inspectors in this case
deliberately withheld their Miranda advisement until
[Thompson] had incriminated himself.” Applying AEDPA
deference, the district court held that the state appellate
court’s determination that Thompson made a valid, voluntary
waiver of his Miranda rights was a reasonable application of
Elstad.
Thompson timely appealed, arguing, among other things,
that the state appellate court’s rejection of his claim (that his
post-Miranda statements should have been suppressed) was
contrary to clearly established Supreme Court precedent.
According to Thompson, Seibert was the relevant “clearly
established Federal law, as determined by the Supreme Court
of the United States,” § 2254(d)(1), because the Supreme
Court issued the decision before his case became final on
direct review.
A divided Ninth Circuit panel reversed. Thompson v.
Runnels, 621 F.3d 1007 (9th Cir. 2010) (Thompson I),
withdrawn and superseded by 657 F.3d 784 (9th Cir. 2011)
(Thompson II). The majority first determined that Thompson
had sufficiently exhausted his challenge under Seibert
because, in his petition for review to the California Supreme
Court, Thompson fairly presented the substance of his Seibert
claim. Thompson II, 657 F.3d at 794–96. Turning to the
requirements of AEDPA, the majority noted that there was
“some uncertainty” as to whether Seibert was “clearly

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established Federal law” within the meaning of 28 U.S.C.
§ 2254(d)(1) given that it was decided after the California
Supreme Court denied review but before Thompson’s
conviction became final, but declined to “address the merits
of this procedural question” because the state did not
specifically raise it. Id. at 796 n.7. The majority then held
that the state appellate court’s reliance on Elstad, without
consideration of the rule announced several months later in
Seibert, was “contrary to . . . clearly established Federal law”
under § 2254(d)(1). Id. at 797. Relieved of AEDPA
deference and reviewing de novo, the majority held that there
was a Seibert violation because “the only reasonable
inference . . . [was] that the officers deliberately withheld
Miranda warnings until after obtaining a confession,” id. at
799, and the delayed Miranda warnings were ineffective in
apprising Thompson of his rights, id. at 799–802. The
majority therefore granted the writ. Id. at 802. The dissent
would have held that Seibert was not clearly established law
for purposes of § 2254(d)(1) because it was decided after the
last reasoned state court decision on the merits, and would
have affirmed the district court. Id. at 804 (Ikuta, J.,
dissenting).
The state filed a petition for rehearing and rehearing en
banc which, among other things, took issue with the
majority’s determination that the state had waived the
argument that Seibert was not clearly established law. Citing
Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003), the state
also argued that AEDPA’s “clearly established law”
requirement is not a “procedural defense but [a] standard of
general applicability” and therefore cannot be waived by the
state. In a published order, the Ninth Circuit denied rehearing
and rehearing en banc. Thompson II, 657 F.3d at 784. Seven
judges dissented from the denial of rehearing en banc. Id.

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The state petitioned the Supreme Court for certiorari,
arguing that the California Court of Appeal had faithfully
applied Elstad, which was the clearly established Supreme
Court precedent at the time of its decision, and that the Ninth
Circuit panel majority erred in assessing “clearly established
Federal law” at the time Thompson’s conviction became
final, instead of at the time of the state court decision. See
Brief for Petitioner at 12, McEwen v. Thompson, 132 S. Ct.
578 (2011) (No. 11-305), 2011 WL 3978775, at *12.
While the certiorari petition was pending, the Supreme
Court decided Greene. In Greene, a habeas petitioner
claimed he was entitled to relief under a Supreme Court
decision issued while his post-conviction review petition to
the state supreme court was pending. 132 S. Ct. at 43–44. In
rejecting this argument, the Court unanimously held that
“clearly established Federal law” does not include the
decisions of the Supreme Court “that are announced after the
last adjudication of the merits in state court but before the
defendant’s conviction becomes final.” Id. at 42. For
purposes of § 2254(d)(1), therefore, “clearly established
Federal law” refers to the holdings of the Supreme Court “as
of the time the state court renders its decision.” Id. at 44
(internal quotation marks omitted). Greene thus resolved the
timing issue raised by the state in its petition for certiorari in
Thompson II.
On November 14, 2011, the Supreme Court granted the
state’s petition for certiorari, vacated the judgment in
Thompson II, and remanded the case to the Ninth Circuit “for
further consideration in light of [Greene].” McEwen v.
Thompson, 132 S. Ct. 578 (2011).
We requested
supplemental briefing and reargument in light of the Supreme
Court’s decision. The state argued that, in light of Greene,

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we must now consider whether the state appellate court’s
analysis of Thompson’s Miranda claim was a reasonable
application of Elstad. Thompson argued that the state waived
or forfeited that argument, and that, in any event, he was
entitled to relief even under Elstad.
II
Thompson seeks relief on the ground that his Fifth
Amendment rights were violated by the state trial court’s
admission of his post-Miranda statements, and argues that we
are not precluded from granting relief under AEDPA because
the state appellate court’s rejection of this claim was an
unreasonable application of clearly established Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). As directed by the
Supreme Court, we must now reconsider Thompson’s claim
for federal habeas relief in light of Greene.
We look to the last reasoned state court adjudication on
the merits of Thompson’s Miranda claim, which was the
decision of the California Court of Appeal on February 3,
2004. See Greene, 132 S. Ct. at 44–45. Greene has now
confirmed that at the time the state court rendered its
decision, the clearly established Supreme Court precedent
was Elstad, because Seibert had not yet been decided. Id. at
44. Under § 2254(d)(1) and binding Supreme Court
precedent, we cannot grant habeas relief unless the state
court’s adjudication of Thompson’s Miranda claim was an
“unreasonable application” of Elstad. See id. at 44 (2011)
(“As we explained, § 2254(d)(1) requires federal courts to
‘focu[s] on what a state court knew and did,’ and to measure
state-court decisions ‘against this Court’s precedents as of
‘the time the state court renders its decision.’’” (quoting
Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011))).

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In light of this conclusion, we must determine whether the
state appellate court’s decision was “contrary to, or an
unreasonable application of” Elstad. In Elstad, a defendant
made incriminating statements before receiving Miranda
warnings, and attempted to suppress his post-Miranda
confession on the ground that the unwarned statements “let
the cat out of the bag” and therefore induced the post-warning
confession. Elstad, 470 U.S. at 302. The Supreme Court
rejected the defendant’s argument, holding that while “the
unwarned admission must be suppressed, the admissibility of
any subsequent statement should turn in these circumstances
solely on whether it is knowingly and voluntarily made.” Id.
at 309.
Here, the California Court of Appeal’s determination that
Thompson’s post-Miranda confessions were admissible was
not contrary to or an unreasonable application of Elstad. The
state court correctly explained that, under Elstad, “so long as
the earlier [unwarned] statement was not involuntary due to
police coercion, the subsequent voluntary, warned statement
is admissible.” Applying this standard, the court concluded
that “there was no improper police coercion during the period
of unwarned questioning and that Thompson’s statements
during that period were voluntary.” The court emphasized
that “the overall environment was relatively unintimidating
and nonoppressive,” and that “the inspectors did not make
promises or threats and the overall tenor of questioning was
not coercive.” The court then concluded that Thompson’s
subsequent Miranda waiver was knowing and voluntary:
Although young, Thompson was not a minor
in June 1998, and the fact that he may have a
learning disability does not indicate that he
was unable to understand his rights. As the

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trial court concluded, the videotape shows that
Inspector Conaty properly informed
Thompson of the Miranda rights and that
Thompson indicated that he understood those
rights with a nod of his head. The videotape
indicates that the inspectors were careful,
polite, and soft-spoken, not overbearing.
Nothing on the videotape indicates that
Thompson did not understand his rights or
was reluctant to speak to the inspectors.

The court also held that admission of the videotaped
reenactment was also proper: “Although Thompson spent a
cold and uncomfortable night in the county jail following the
interrogation, he was fed and again advised of his Miranda
rights before doing the interrogation.” The court concluded
there was no “indication of coercion surrounding the
reenactment.”
Thompson argues that the state court unreasonably
applied Elstad because the officers’ interrogation tactics,
including use of “implied promises of leniency and
misrepresentations” rendered his post-Miranda statements
involuntary. The state court was not unreasonable in
rejecting this argument. Police interrogation tactics that do
not rise to the level of coercion do not make a confession
involuntary. See Illinois v. Perkins, 496 U.S. 292, 297 (1990)
(“Ploys to mislead a suspect or lull him into a false sense of
security that do not rise to the level of compulsion or coercion
to speak are not within Miranda’s concerns.”). The state
court could reasonably have concluded that the officers’
tactics did not rise to that level. As the court correctly noted,
“the inspectors never promised, either expressly or impliedly,
any specific benefits that would flow to Thompson if he

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confessed,” and “the general thrust of the inspectors’
statements was that it would be better for Thompson if he told
the truth and that his punishment would depend on the
particular circumstances of the killing” and the judgment of
the District Attorney. Although Thompson argues that he
was more susceptible to the officers’ tactics because he was
only eighteen and had a learning disability, the state court
reasonably concluded that “the record does not reveal such
youthfulness and low intelligence that Thompson would have
been unusually vulnerable to the inspectors’ tactics.”
Finally, Thompson claims that the state court erred in
rejecting his Elstad claim because his Miranda waivers were
not knowing and voluntary. Again, the state court’s rejection
of this argument was not an unreasonable application of
Elstad, given that the officers fully advised Thompson of his
rights before he reiterated his confession on June 22, 1998,
and again before he participated in the videotaped
reenactment of the murder on the following day, and
Thompson affirmed that he fully understood his rights.
Because we conclude that the state court’s decision
affirming the trial court’s denial of Thompson’s motion to
suppress the post-Miranda statements was not contrary to or
an unreasonable application of Elstad, AEDPA precludes
relief.
III
Notwithstanding this clear precedent, Thompson argues
that we should not consider whether the state court’s decision
was an unreasonable application of Elstad. The state, he
argues, waived or forfeited the argument that only Elstad was
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by failing to raise it in its briefs to the district court and to us
in its original response brief. Therefore, according to
Thompson, this court must assess his habeas petition as
though Seibert were relevant for § 2254(d)(1) purposes.
We disagree. The Supreme Court has made clear that in
adjudicating a claim or issue pending before us, we have the
authority to identify and apply the correct legal standard,
whether argued by the parties or not. Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991). Once “an issue or claim
is properly before the court, the court is not limited to the
particular legal theories advanced by the parties.” Id.
Instead, the court “retains the independent power to identify
and apply the proper construction of governing law,” id., and
is free to “consider an issue antecedent to . . . and ultimately
dispositive of the dispute before it, even an issue the parties
fail to identify and brief,” U.S. Nat’l Bank of Oregon v. Ind.
Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)) (internal
quotation marks omitted); see also In re Greene, 223 F.3d
1064, 1068, n.7 (9th Cir. 2000) (holding that the court could
consider a statutory interpretation argument not specifically
raised by the defendant because, “[w]hen an issue or claim is
properly before the court, the court is not limited to the
particular legal theories advanced by the parties.” (quoting
Ind. Ins. Agents., 508 U.S. at 446)).
For the same reason, “parties are not limited to the precise
arguments they made below.” Lebron v. National R.R.
Passenger Corp., 513 U.S. 374, 379 (1995); see also Citizens
United v. Fed. Election Comm’n, 130 S. Ct. 876, 893 (2010)
(allowing plaintiffs to raise a new argument on appeal to
support a “consistent claim” that a statute violated First
Amendment rights); Engquist v. Oregon Dept. of Ag.,

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478 F.3d 985, 996 n.5 (9th Cir. 2007) (holding that we may
hear new arguments on appeal if they are “intertwined with
the validity of the claim”); United States v. Pallares-Galan,
359 F.3d 1088, 1095 (9th Cir. 2004) (“[I]t is claims that are
deemed waived or forfeited, not arguments.”). Thus, we may
consider new legal arguments raised by the parties relating to
claims previously raised in the litigation.2
Here, Thompson’s claim that he is entitled to habeas relief
because the state trial court violated his Fifth Amendment
rights by failing to suppress his post-Miranda statements is
properly pending before us. Under AEDPA, we may not
grant habeas relief unless the state appellate court’s
adjudication of this claim “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,” § 2254(d)(1). In order
to resolve the question whether the state court’s decision met
this standard, we must first address the antecedent question
whether Elstad or Siebert is the relevant “clearly established
Federal law.” § 2254(d)(1). We have the authority to identify
and apply the correct governing law necessary to dispose of
the claim pending before us, Ind. Ins. Agents of Am., Inc.,
508 U.S. at 447, and thus we do not abuse our discretion by
determining that Elstad is the relevant clearly established
Supreme Court precedent, id.

2

The dissent argues that these cases are not applicable because the state
did not raise a new argument on appeal. Dis. op. at 34 n.4. This is
incorrect; the state elaborated its argument that Seibert was not the
relevant “clearly established Federal law” in the supplemental appellate
briefs we ordered the parties to submit after the Supreme Court vacated
our prior opinion.

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The Supreme Court’s recent decision in Wood v. Milyard,
132 S. Ct. 1826 (2012), is not contrary to this conclusion. In
Wood, a federal appellate court asked the state to provide
supplemental briefing regarding a statute of limitations
defense to a habeas petition, and subsequently dismissed the
habeas petition as untimely. The Supreme Court held the
federal court abused its discretion by considering, sua sponte,
an affirmative defense that had been deliberately waived by
the state. (The state had twice informed the court that it was
not challenging the timeliness of the habeas petition.) Id. at
1830.3
Wood’s holding is not applicable to our consideration of
the correct interpretation of § 2254(d)(1), which is not an
affirmative defense.4 See Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011) (“The petitioner carries the burden of
3

The Court distinguished deliberate waivers from forfeitures, holding
that “the bar to court of appeals’ consideration of a forfeited habeas
defense is not absolute,” and “federal appellate courts have discretion, in
exceptional cases, to consider a nonexhaustion argument inadverten[tly]
overlooked by the State in the District Court.” Id. (internal quotation
marks and citations omitted).
4
The dissent states that we err in limiting Wood to “a case regarding an
‘affirmative defense’” because it addresses waiver of both claims and
defenses. Dis. op. at 32 n.3. W e disagree. The specific issue in Wood
was not whether an appellate court may decline to hear a waived claim or
defense, but whether an appellate court abuses its discretion if it considers
an issue that a party has waived. As to that issue, Wood’s holding was
narrow: it held only that it would be an abuse of discretion for an appellate
court “to override a State’s deliberate waiver” of an affirmative defense.
132 S. Ct. at 1834–35. Nothing in Wood casts doubt on the longstanding
validity of the rule that once “an issue or claim is properly before the
court, the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and apply
the proper construction of governing law.” Kamen, 500 U.S. at 99.

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proof” with respect to § 2254(d)’s requirements); see also
Price v. Vincent, 538 U.S. 634, 641 (2003) (stating that “it is
the habeas applicant’s burden to show that the state court
applied [a Supreme Court case] to the facts of his case in an
objectively unreasonable manner” under § 2254(d)(1));
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(same). For the same reason, Thompson’s attempt to
analogize our consideration of § 2254(d)(1) to the nonretroactivity principle established by Teague v. Lane,
489 U.S. 288 (1989), fails: the Teague non-retroactivity
principle is also an affirmative defense that must be raised by
the state. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994)
(holding that “a federal court may, but need not, decline to
apply Teague if the State does not argue it,” but “if the State
does argue that the defendant seeks the benefit of a new rule
of constitutional law, the court must apply Teague before
considering the merits of the claim”); see also Danforth v.
Minnesota, 552 U.S. 264, 289–90 (2008).
Although we are not barred from considering a new
argument on appeal, we generally take care to avoid the
unfairness inherent in deciding cases on bases not raised or
passed upon in the tribunal below. For instance, we have
held that we “will not ordinarily consider matters on appeal
that are not specifically and distinctly argued in appellant’s
opening brief,” Koerner v. Grigas, 328 F.3d 1039, 1048 (9th
Cir.2003), subject to certain exceptions, see Kimes v. Stone,
84 F.3d 1121, 1126 (9th Cir. 1996).5 Moreover, we have
authority to decline to hear even new legal arguments not

5

W e apply this rule when a party raises a new claim, Kimes, 84 F.3d at
1126, but not when a party raises a new argument to support a claim
already pending before the court, see In re Greene, 223 F.3d at 1068, n.7.

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timely raised by the parties. See, e.g., James v. Ryan,
679 F.3d 780, 802 (9th Cir. 2012).
In this case, however, it is appropriate to apply the correct
legal standard to Thompson’s claim. The question whether
the state court’s opinion should be measured against Elstad
or Seibert has been presented by both parties throughout this
appeal.6 After Greene was decided, both parties had an
opportunity to brief the question regarding which Supreme
Court precedent was the applicable clearly established federal
law for purposes of § 2254(d)(1). Because the legal issue has
been fully addressed by both parties, and because it is a
simple and straightforward question of law, we do not abuse
our discretion in addressing it. Ind. Ins. Agents of Am., Inc.,
508 U.S. at 447.7
IV
Thompson further contends that even if the state did not
waive or forfeit its argument that Seibert is not applicable to

6

The state originally argued that Seibert was inapplicable because it was
decided after the state court rendered its decision, and that, as a result,
Thompson never exhausted his Seibert argument. See Blair v. California,
340 F.2d 741 (9th Cir. 1965) (holding that even when a petitioner
presented the substance of his claim to the state court, the petitioner had
to reexhaust that claim if a later-decided Supreme Court opinion cast the
claim in a different light). The Supreme Court’s reasoning in Greene
clarified that Seibert is inapplicable under § 2254(d)(1) for the same
reason: it had not yet been decided at the time the state court rendered its
decision. Therefore, the state’s position that Thompson’s Seibert-based
argument was unexhausted is consistent with its current argument that
Seibert is not clearly established Supreme Court precedent under Greene.
7

In light of the narrowness of our holding, the dissent’s parade of
horribles, dis. op. at 37, seems misplaced.

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his petition, we should stay the federal proceedings in order
to allow him to seek reconsideration of his Miranda claim in
state court in light of Seibert. He bases his argument on our
decision in Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011),
petition for cert. filed sub. nom Chappell v. Gonzales,
80 U.S.L.W. 3710 (U.S. May 18, 2012) (No. 11-1397). In
that case, a prosecutor failed to turn over certain Brady
materials to the petitioner until all state proceedings had been
completed. Because the suppressed materials substantially
strengthened the petitioner’s Brady claim, we remanded that
portion of the petitioner’s case to the district court, with
instructions to stay the habeas proceedings until the petitioner
had an opportunity to present the new evidence to the
California Supreme Court. Id. at 999.
Wong is not applicable here. In Wong, the petitioner
argued that he had been unable to present his claim in state
court because of the state’s suppression of evidence. Here, on
the other hand, Thompson had all the evidence he needed to
make his Seibert claim in state court after Seibert was
announced, but he chose not to do so. Thompson’s situation
is precisely the same as the petitioner’s in Greene. In
rejecting the petitioner’s request for the Court to interpret
“clearly established Federal law” to include Supreme Court
precedent issued after the date of the relevant state court
opinion, Greene noted that the petitioner’s “predicament
[was] an unusual one of his own creation” because he had
given up “two obvious means of asserting his claim” by
failing to seek certiorari in the Supreme Court or file a
petition for state post-conviction relief. 132 S. Ct. at 45.
Like the petitioner in Greene, Thompson also had the
opportunity to seek certiorari in the Supreme Court, where he
was likely to obtain a remand in light of Seibert, and to file a

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habeas petition in state court, but he did neither. We
therefore decline to order a stay of federal proceedings.
V
Thompson’s habeas petition is governed by AEDPA, and
the validity of his claim must be assessed under § 2254(d)(1).
Elstad is the relevant “clearly established Federal law” for
purposes of this § 2254(d)(1) analysis and, under Elstad,
Thompson’s rights were not violated. Thompson’s petition
is therefore denied.
AFFIRMED.

GOODWIN, Senior Circuit Judge, specially concurring:
A strict adherence to 28 U.S.C. § 2254 (AEDPA) compels
me to conclude that the California courts did not
unreasonably apply clearly established Supreme Court law in
following Oregon v. Elstad, 470 U.S. 298 (1984) instead of
Missouri v. Seibert, 542 U.S. 600 (2004). The two scholarly
opinions written by my colleagues in this persistent appeal
demonstrate that the present law on the validity of two-stage
custodial interrogation is far from “clearly established.”
In 1966, as a state appellate judge, I learned from the
United States Supreme Court that voluntary confessions
obtained by police interrogation could no longer be used by
state prosecutors unless the confession survived Miranda
scrutiny. For the next 46 years, as a state and federal judge,
reading trial records and judicial opinions about “voluntary”
confessions obtained by custodial interrogations, I learned

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how law enforcement behavior evolves and that even the
Supreme Court can change its position on interrogation
strategy.
The “GVR” that brings this panel back to Mr.
Thompson’s two-stage confession requires us to re-examine
the confession without reference to Supreme Court law that
emerged after Thompson’s state-court review had ended in
the California Court of Appeal, and after the state Supreme
Court had denied further review, but before the time for a cert
petition expired. During that interval, the United States
Supreme Court may have modified its own views on delayed
warnings in custodial interrogation, or it may not have done
so. Who knows?
I concur in Judge Ikuta’s opinion, and commend Judge
Berzon for pointing out the procedural confusion caused by
the various briefing positions taken by the state.

BERZON, Circuit Judge, dissenting:
The original panel opinion analyzed Thompson’s habeas
petition under Missouri v. Seibert, 542 U.S. 600 (2004), the
case that both parties assumed was “clearly established
Federal law” for purposes of 28 U.S.C. § 2254(d)(1) in this
appeal. Only after the respondent (whom I refer to as the
“State”) lost in the panel’s original decision did the State first
advance the argument that Seibert was not the relevant
precedent under § 2254(d)(1). The majority now holds that
despite the State’s extraordinary delay in raising that
argument, the argument was neither forfeited nor waived.
Maj. Op. at 17–22. Because the majority misapplies the

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Supreme Court’s recent decisions on waiver and forfeiture in
the habeas context and upends the fundamental principle of
civil litigation that litigants are ordinarily expected to raise
open questions if they want them decided, I respectfully
dissent.
I
I begin by describing the magnitude of the State’s delay
before making the about-face in its litigation strategy that the
majority now excuses.
A
At the time the State filed its brief in July 2009, this
court’s cases contained contradictory statements concerning
the time frame for determining “clearly established” law
under § 2254(d)(1), reflecting, in turn, conflicting guidance
by the Supreme Court. But the issue was an open one, both
in the Supreme Court and this court.
In Williams v. Taylor, 529 U.S. 362 (2000), the Court
characterized “clearly established Federal law” as measured
alternately “at the time [the] state-court conviction became
final,” id. at 390 (majority opinion, Part III, by Justice
Stevens), and “as of the time of the relevant state-court
decision,” id. at 412 (majority opinion, Part II, by Justice
O’Connor). Later cases noted the contradiction but did not
resolve it. See Smith v. Spisak, 130 S. Ct. 676, 681 (2010);
see also Bobby v. Dixon, 132 S. Ct. 26, 31 n.3 (2011) (per
curiam); Thaler v. Haynes, 130 S. Ct. 1171, 1174 n.2 (2010)
(per curiam).

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Our cases reflected the Supreme Court’s lack of clarity.
For example, Jackson v. Giurbino, 364 F.3d 1002 (9th Cir.
2004), stated that “[t]he relevant law must have been clearly
established by the time [the petitioner’s] conviction became
final in the state courts.” Id. at 1005 (citing Williams,
529 U.S. at 390). Other cases, including Fowler v.
Sacramento County Sheriff’s Department, 421 F.3d 1027 (9th
Cir. 2005), instructed that “‘clearly established Federal law’
. . . refers to . . . the time of the relevant state-court decision,
which is the ‘last reasoned decision’ by the state court.” Id.
at 1034 (citations omitted). Yet, although our case law
contained such contradictory statements in passing, there was,
as far as I can tell, no case in which the timing issue mattered
in determining the applicable Supreme Court precedent.1 Nor
does the State or the majority opinion suggest otherwise.
The State did not argue in its answering brief that the
Fowler version of these divergent rules applies. In light of
the lack of a controlling precedent in which there was an
actual holding on the issue, the State could have argued for its
present position. Or it could have maintained that the Fowler
rule governed in this case in any event, because Seibert was
decided after the last state court ruling (the denial of
discretionary review by the California Supreme Court), and
no petition for a writ of certiorari had been filed with the
United States Supreme Court.
In fact, instead of presenting the argument that Seibert
was not the measure of “clearly established Federal law,” or

1

The Second Circuit also noted the Supreme Court’s “inconsistent
guidance” on the timing issue in a case in which it did “not matter which
formulation applie[d].” See Brown v. Greiner, 409 F.3d 523, 533 n.3 (2d
Cir. 2005).

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at least raising the issue of this court’s conflicting statements,
the State’s initial brief in this court definitively “stated, citing
Justice Stevens’ opinion for the Court in Williams . . . , that
the law to be applied under [the Antiterrorism and Effective
Death Penalty Act (AEDPA)] is that ‘clearly established at
the time [Thompson’s] state court conviction became final.’”
See Thompson v. Runnels, 657 F.3d 784, 796 n.7 (9th Cir.
2011) (Thompson II), vacated sub nom. McEwen v.
Thompson, 132 S. Ct. 578 (2011). The original dissent
recognized that the State did not “argu[e] that Seibert was not
‘clearly established’ Supreme Court precedent relevant to
Thompson’s claim under AEDPA.” Thompson v. Runnels,
621 F.3d 1007, 1023 n.1 (9th Cir. 2010) (Thompson I) (Ikuta,
J., dissenting), withdrawn and superseded by Thompson II,
657 F.3d 784. And the State so noted in its Petition for
Rehearing with Suggestion for Rehearing En Banc, stating:
“We acknowledged . . . at oral argument we did not raise this
issue.” See Thompson II, 657 F.3d at 796 n.7. In light of the
State’s failure to argue to the contrary, the original majority
decision appropriately held that as in Smith v. Spisak, because
“the parties had not raised the issue,” it was “not properly
before us.” Thompson I, 621 F.3d at 1015 n.7; Thompson II,
657 F.3d at 796 n.7.
B
Under our case law, an appellee who fails to raise an issue
in an answering brief forfeits it. Clem v. Lomeli, 566 F.3d
1177, 1182 (9th Cir. 2009). The circumstances described
above are therefore enough to establish that the State forfeited
the argument.
But the State did more than just that. It accepted the
petitioner’s argument that Seibert was the relevant precedent,

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and then erected its own argument on that understanding,
maintaining that Thompson should have exhausted his Seibert
argument in the state courts before coming to federal court.
See Thompson I, 621 F.3d at 1013.2 Specifically, the State
argued that “‘[t]he threshold question under AEDPA is
whether [the petitioner] seeks to apply a rule of law that was
clearly established at the time his state-court conviction
became final,’” (quoting Williams, 529 U.S. at 390)
(emphasis added), and then argued that because Thompson
“never fairly presented to the state courts the issue of
deliberate police action under Seibert,” Thompson’s petition
was “unexhausted.” Greene resolved an issue distinct from
exhaustion, namely whether a Supreme Court case decided
after the last-reasoned state court decision on the merits is
“clearly established Federal law” under § 2254(d)(1), see
132 S. Ct. 38, regardless of what arguments were “fairly
presented” in state court, see Thompson II, 657 F.3d at
794–95.
The majority’s attempt to equate the argument that the
State actually made and the argument that the State forfeited
but that the majority now reaches is thus unconvincing. See
Maj. Op. at 22 n.6. Instead, by making its exhaustion
argument while accepting that for § 2254(d)(1) purposes law
is clearly established when the conviction becomes final, the
State “deliberately steered” the panel away from the question
on which the majority now rests its opinion. See Wood v.
Milyard, 132 S. Ct. 1826, 1835 (2012).

2

The original opinion rejected the State’s exhaustion argument on its
merits. See Thompson I, 621 F.3d at 1013.

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C

The State’s other litigation choices further underscore the
extent to which the State steered this court away from any
argument that Seibert was not the relevant precedent against
which to measure the last reasoned state-court decision. At
the February 10, 2010 argument, the following exchange
transpired:
Judge Ikuta: Is the State waiving the argument
that Missouri v. Seibert was not clearly
established at the time the state court rendered
the decision? Because the State does have the
power to waive that, and we would apply
Missouri v. Seibert to the state court’s
decision. So are you waiving that argument?
Counsel: Well, I have to admit, Your Honor,
we did not raise it, so—
Judge Ikuta: Are you waiving it on behalf of
the State?
Counsel: I don’t feel I’m in the position to
waive it on behalf of the State, but I have to
acknowledge, as [Judge] Berzon pointed out,
that we did not raise that in our briefs, so—
Judge Berzon: And you more than didn’t raise
it. You assumed its nonexistence.
Counsel: I think that’s correct, Your Honor.
But in terms of the State[’s] position, I can’t

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stand here and say that the state is waiving
that argument.
Notwithstanding the State’s refusal at oral argument
affirmatively to state that it was “waiving” the argument, the
Supreme Court’s recent decision in Wood v. Milyard, 132
S. Ct. 1826 (2012), confirms that by its actions, the State did
waive the position it now espouses. By the time oral
argument concluded, the State’s forfeiture — or failure to
preserve its argument — had become a waiver — that is, a
knowing and intelligent relinquishment of the argument. See
id. at 1832 n.4.
In Wood, the Court construed as a “waiver” a similar
representation by the office of the Attorney General of
Colorado in a § 2254 habeas case. In that case, the district
court instructed the “State [of Colorado] to file a preanswer
response . . . ‘addressing the affirmative defense[] of
timeliness.’” Id. at 1830 (internal citation omitted). The
State responded: “Respondents will not challenge, but are not
conceding, the timeliness of . . . [the] habeas petition.” Id.
(internal quotation marks omitted). “Consistently, in its full
answer to [the] . . . petition, the State repeated: ‘Respondents
are not challenging, but do not concede, the timeliness of the
petition.’” Id. at 1830–31. After the district court dismissed
the habeas petition on grounds other than timeliness, the
Court of Appeals for the Tenth Circuit ordered the parties to
the appeal to brief the timeliness issue. Id. at 1831. The
Supreme Court reversed, explaining that the State had waived
the timeliness argument, and that the Tenth Circuit abused its

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discretion by dismissing the petition on that procedural
ground despite the State’s waiver. Id. at 1834.3
Most relevant here is that despite Colorado’s repeated
mantra that it was not “conced[ing]” its timeliness argument,
Wood construed its response as a waiver. The Court
characterized the State’s responses to the district court’s
briefing order as “deliberately steer[ing]” that court “away
from the question,” rather than as “inadvertent error.” Id. at
1835 (quotation marks omitted). “In short, the State knew it
had an ‘arguable’ statute of limitations defense, yet it chose,
in no uncertain terms, to refrain from interposing [such a]
challenge.” Id. at 1835 (internal citation and quotation marks
omitted).
Colorado had therefore waived, that is
“intentional[ly] relinquish[ed] or abandon[ed],” “a known
right.” Id. at 1835.
The circumstances here were, if anything, more indicative
of a waiver than those in Wood. The State made an earlier
decision not to brief, and therefore “not to contest,”
Thompson’s position as to the time at which clearly
established law was to be measured. See id. at 1835. Instead,
it quoted in its brief the contrary rule to the one for which it
now argues and constructed an argument assuming that rule.
In the face of questioning from this court, the State
acknowledged that briefing position and, after hearing that
there might be a contrary plausible position, did not backtrack

3

The majority makes no effort to address Wood’s holding regarding
under what circumstances a party’s litigation decisions result in a waiver,
and instead endeavors to distinguish Wood as a case regarding an
“affirmative defense.” See Maj. Op. at 20 & n.4 (emphasis added). Wood
cannot be so narrowly construed. See Wood, 132 S. Ct. at 1832 n.4
(discussing waiver of both “claim[s]” and “defense[s]”).

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from its earlier assumption, stating that it was “correct” that
it had briefed the case on the understanding that Seibert was
clearly established federal law at the relevant time.
Analogously to Wood, at least by the time of the oral
argument, “the State knew it had an ‘arguable’ [clearly
established Federal law] defense, yet it chose, in no uncertain
terms, to refrain from interposing [such] a ‘challenge,’” see
Wood, 132 S. Ct. at 1835, then or afterwards, until after it had
lost in the original panel opinion, see infra Section I.D. As
the Seventh Circuit has held, where a government attorney
“learn[s] at oral argument that there was a potential
procedural argument, [and] then inform[s] the court that the
argument was not being asserted,” under Wood, “[w]hy a
litigant comes to such a decision is irrelevant, and a mistake
in reaching a decision to withhold a known defense does not
make that decision less a waiver.” Ryan v. United States,
688 F.3d 845, 848 (7th Cir. 2012).
In short, Wood and Ryan make plain the State’s waiver
here.
D
Not until after the panel issued its original opinion, with
the dissent taking the view that “clearly established Federal
law” referred to “the time of the relevant state-court
decision,” Thompson I, 621 F.3d at 1023 (Ikuta, J.,
dissenting), did the State in its petition for rehearing en banc
finally raise the issue on which the majority’s new decision
turns — namely how to determine which Supreme Court
precedent constitutes “clearly established Federal law” under

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AEDPA, see Thompson II, 657 F.3d at 796 n.7.4 Our cases
make crystal clear that the government — like any other
litigant — is not entitled to raise an entirely new issue for the
first time in a petition for rehearing. See Fields v. Palmdale
Sch. Dist., 447 F.3d 1187, 1190 (9th Cir. 2006).
The majority nevertheless contends that despite the
State’s decision to wait until its petition for rehearing en banc
to argue that Seibert was not the measure of clearly
established federal law, we should now disregard Seibert.
See Maj. Op. at 17–22. But nowhere does the majority
account for the State’s egregious delay in making that
argument, nor does the majority explain why the State should
benefit from the fortuitous timing of the Supreme Court’s
decision to grant certiorari in Greene while the State’s
petition for rehearing en banc was pending.
The majority’s decision to excuse the State’s waiver
might be more tenable if our practice were to bend over
backwards to make the same concessions for habeas
petitioners. But the trajectory of federal habeas law in the
past decades has been a series of “ceaselessly changing and
ever expanding series of rules,” with which “all but the most
unusual of petitioners” are deemed noncompliant. Leavitt v.
Arave, 682 F.3d 1138, 1142 (9th Cir. 2012) (Reinhardt, J.,
concurring). For example, in Butler v. Curry, 528 F.3d 624,
642 (9th Cir. 2008), a habeas petitioner was held to have
4

Because the State did not raise its “clearly established Federal law”
argument in its answering brief, and instead waited until the panel issued
its decision to make the argument for the first time in its petition for
rehearing en banc, the cases the majority cites for the proposition that
under certain circumstances we may consider arguments raised by the
parties in their briefs on appeal even if not raised in lower court
proceedings, see Maj. Op. at 18, 19 & n.2, are inapposite.

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forfeited the argument that the state court’s interpretation of
state law was erroneous “by failing to raise it either in the
district court or in his brief on appeal, mentioning it for the
first time at oral argument.” Similarly, the habeas petitioner
in Robinson v. Kramer, 588 F.3d 1212, 1218 (9th Cir. 2009),
forfeited claims raised in state habeas petitions and in the
district court by not renewing them on appeal.
The Supreme Court has instructed us that federal judges
“have no obligation to act as counsel or paralegal to pro se
litigants,” by advising how to exhaust and avoid procedural
default, and that “by the same token, [judges] surely have no
obligation to assist attorneys representing the State.” Day v.
McDonough, 547 U.S. 198, 210 (2006) (internal citation and
quotation marks omitted). We lose credibility as an impartial
arbiter of habeas cases when we discard the “ordinar[]y” rules
of “civil litigation” to save governmental parties from their
own litigation choices. Wood, 132 S. Ct. at 1832. States are
entitled to a great degree of deference under AEDPA, but not
when they confound federal courts’ ability to adjudicate cases
according to the “principle of party presentation basic to our
adversary system.” Id. at 1833. Entertaining an argument
raised for the first time on a petition for rehearing is no way
for a court to handle litigation with any degree of efficiency
or regard for fairness to the parties.
There are also considerations of judicial self-governance
and efficient, effective decisionmaking compromised by the
majority’s refusal to hold the State to its litigation choices.
As a practical matter, “we rely on the parties to frame the
issues for decision,” as “our adversary system is designed
around the premise that the parties know what is best for
them, and are responsible for advancing the facts and
arguments entitling them to relief.” Greenlaw v. United

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States, 554 U.S. 237, 243–44 (2008) (internal quotation
marks and citation omitted). Sometimes, however, we
discover that the parties are so mistaken in their legal
assumptions — whether due to faulty research or illogical
analysis — that we cannot and do not proceed on an
erroneous basis. See id. at 262–64 (Alito, J., dissenting)
(collecting cases). Where, however, (1) the legal question is
a debatable one; (2) the pertinent party is so apprised by the
court and specifically asked at argument whether it wishes to
alter its position; and (3) the party instead sticks to a position
incompatible with the one it later adopts, the court cannot
sensibly decide the question the party has declined to
advance. To do so simply multiplies the court’s work,
requiring it to (1) decide the question the party does present;
and then (2) decide the other question the party refused to
address, necessitating entirely new research and analysis.
The alternative of waiting to see whether the issue is finally
raised in a petition for rehearing is even worse: We rehear
cases when the court has made a mistake, not when a party
has made a mistake.
Nor does the fact that the case is before the court on the
Supreme Court’s grant of certiorari, vacatur, and remand
(GVR) change the approach appropriate here. The Supreme
Court’s only instruction to this court was that the case be
considered further “in light of Greene v. Fisher.” See
McEwen v. Thompson, 132 S. Ct. 578 (2011) (citing Greene,
132 S. Ct. 38 (2011)). A GVR order does not represent any
conclusion that a new case is determinative, only that it is
“potentially relevant.” Stutson v. United States, 516 U.S.
193, 197 (1996) (per curiam); see Lawrence v. Chater,
516 U.S. 163 (1996) (per curiam). The State’s waiver of the
argument that Seibert was not “clearly established Federal
law” is ample reason that Greene does not control here.

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II
The majority’s decision to endorse the State’s eleventhhour about-face regarding its litigation strategy leads to one
of two possibilities for how habeas litigation will now
proceed. The first is that we will ourselves be responsible for
coming up with all the Supreme Court precedents possibly
relevant to determining whether a state court’s decision was
an unreasonable application of clearly established Supreme
Court precedent, no matter how the parties have framed their
arguments. The second is that we will let the parties change
their litigation strategies at any time, including after briefing
is completed, after oral argument has taken place, and after
the panel renders its decision. Each of these approaches is
supremely inefficient and disregards basic precepts of our
adversarial system. The court’s fair and efficient functioning
depends on the “principle of party presentation basic to our
adversary system.” Wood, 132 S. Ct. at 1833. And
impartiality demands that “we should be no less vigorous in
applying . . . against the government” the rule that arguments
not raised on appeal are forfeited than we are in applying that
rule “against criminal defendants.” United States v. Ziegler,
497 F.3d 890, 901 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc).
Because I would analyze the merits of Thompson’s
Miranda claim under the Supreme Court’s decision in Seibert,
I would conclude, for the reasons given in the original panel
opinion, that the California Court of Appeal applied a rule
contrary to “clearly established Federal law,” and, that,
applying Seibert de novo, Thompson’s confession was
inadmissible. See Thompson II, 657 F.3d at 796–801. I
therefore respectfully dissent from the majority’s decision to

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allow the State’s switch in time to triumph, and would grant
Thompson’s habeas petition.5

5

Because I would grant Thompson’s habeas petition, I need not reach
his alternate argument that we should stay his federal habeas proceedings
pending any further state court proceedings. See Maj. Op. at 22–24.
Nonetheless, if I were to hold — notwithstanding the State’s multiple
waivers — that Elstad is the relevant “clearly established Federal law” for
purposes of Thompson’s case in its current posture, I would remand to the
district court with instructions to stay proceedings to permit Thompson to
present his Seibert argument in a petition for state postconviction relief.
See Rhines v. Weber, 544 U.S. 269, 278 (2005); Gonzalez v. Wong,
667 F.3d 965, 972, 980 (9th Cir. 2011), cert. denied, 133 S. Ct. 155
(2012). As I have explained, the measure of “clearly established Federal
law” was only recently resolved, see Greene, 132 S. Ct. 38, and the State
accepted until its petition for rehearing that Seibert was the relevant
precedent for deciding Thompson’s petition, asserting in its brief a rule for
determining the timing of clearly established Supreme Court law contrary
to the one adopted in Greene. Under the unique circumstances of this
case, then, Thompson had “good cause” for not pursuing state
postconviction remedies earlier, and “has not engaged in intentional
dilatory litigation tactics.” Gonzalez, 667 F.3d at 980; see Rhines,
544 U.S. at 278. And in my view, for the reasons stated in the original
opinion, see Thompson II, 657 F.3d at 796–801, Thompson has a
“meritorious” Seibert claim, see Rhines, 544 U.S. at 278; Gonzalez,
667 F.3d at 980. The majority therefore abuses its discretion by denying
a stay and effectively foreclosing any further federal review of
Thompson’s claim. See Rhines, 544 U.S. at 278.

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