Antwion Thompson v. D. Runnel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTWION E. THOMPSON , No. 08-16186

Petitioner-Appellant,

D.C. No.

v. 5:05-cv-01264-

JF

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.

2 THOMPSON V . RUNNELS

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 two-

step 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.

THOMPSON V . RUNNELS 3

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

4 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 5

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

6 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 7

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.

8 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 9

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.

10 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 11

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

12 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 13

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,

14 THOMPSON V . RUNNELS

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))).

THOMPSON V . RUNNELS 15

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

16 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 17

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

“clearly established Federal law” for purposes of § 2254(d)(1)

18 THOMPSON V . RUNNELS

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.,

THOMPSON V . RUNNELS 19

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.

20 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 21

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 non-

retroactivity 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.

22 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 23

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

24 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 25

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

26 THOMPSON V . RUNNELS

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).

THOMPSON V . RUNNELS 27

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).

28 THOMPSON V . RUNNELS

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,

THOMPSON V . RUNNELS 29

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.

30 THOMPSON V . RUNNELS

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

THOMPSON V . RUNNELS 31

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

32 THOMPSON V . RUNNELS

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]”).

THOMPSON V . RUNNELS 33

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

34 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 35

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

36 THOMPSON V . RUNNELS

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.

THOMPSON V . RUNNELS 37

II

The majority’s decision to endorse the State’s eleventh-

hour 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

38 THOMPSON V . RUNNELS

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.