Green v. Gomez , 364 F. App'x 387 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES TYREE GREEN, No. 95-15901
Petitioner - Appellant, D.C. No. CV-93-03672-CW
v.
MEMORANDUM *
JAMES H. GOMEZ, Director of
Department of Corrections of the State
of California; THEODORE WHITE,
Warden of New Folsom State Prison,
Respondents - Appellees.
CHARLES TYREE GREEN, No. 08-15949
Petitioner - Appellant, D.C. No. 4:93-cv-03672-CW
v.
MATTHEW C. KRAMER,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
Argued and Submitted January 13, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, HUG and CLIFTON, Circuit Judges.
Green’s statements after he was given the Miranda warnings were properly
admitted. Under Oregon v. Elstad, 470 U.S. 298 (1985), “a suspect who has once
responded to unwarned yet uncoercive questioning is not thereby disabled from
waiving his rights and confessing after he has been given the requisite Miranda
warnings.” Id. at 318. Green argues the statements should be suppressed under
Missouri v. Seibert, 542 U.S. 600 (2004). Even assuming he can rely on Seibert in
light of Teague v. Lane, 489 U.S. 288, 310 (1989), there was no deliberate two-
step process here. Green’s waiver of his Miranda rights was also voluntary. See
Moran v. Burbine, 475 U.S. 412, 421 (1986). He was only in the interview room
for approximately six hours before he was advised of his rights, and during most of
that time he was not being interrogated.
Nor were Green’s admissions coerced. See Colorado v. Connelly, 479 U.S.
157, 167 (1986). Although Green argues that he was psychologically vulnerable to
questioning, “a defendant’s mental condition, by itself and apart from its relation to
official coercion” doesn’t render a statement involuntary. Id. at 164. Green points
to no police behavior amounting to coercion. Moreover, Green’s question “Can I
page 3
have time to think for a second” wasn’t an invocation of his right to remain silent.
It’s just like the question “Can we talk about it tomorrow,” which United States v.
Thierman, 678 F.2d 1331, 1335–36 (9th Cir. 1982), held wasn’t an invocation of
the right to be silent.
Even if the state court erred in determining that Green wasn’t in custody
during his pre-Miranda questioning, he hasn’t shown that admission of his initial
statements had a “substantial and injurious effect” on the verdict. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted).
Green’s bloody overalls were properly admitted, see United States v. Patane, 542
U.S. 630, 641–42 (2004), as were his two confessions. Green’s first statements are
insignificant compared to this evidence.
AFFIRMED.