Rayvaughn Embry v. Timothy E. Busby , 461 F. App'x 635 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAYVAUGHN ROYCE EMBRY, No. 09-15981
Petitioner - Appellant, D.C. No. 1:04-cv-06101-AWI-
JMD
v.
G. J. GUIRBINO; TIMOTHY E. BUSBY, MEMORANDUM *
Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted November 16, 2011
San Francisco, California
Before: NOONAN and BEA, Circuit Judges, and WALTER, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
Rayvaughn Royce Embry appeals the district court’s denial of his petition
for a writ of habeas corpus. We affirm.1
Because Embry’s habeas petition was filed after April 24, 1996, the petition
is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28
U.S.C. § 2254(d)(1); Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).
The state court identified the correct legal rule, namely that to determine
whether a person was in custody for Miranda purposes, the court must examine the
totality of circumstances surrounding the investigation, Stansbury v. California,
511 U.S. 318, 322 (1994) (citation omitted), and ask whether “a reasonable person
[would] have felt he or she was not at liberty to terminate the interrogation and
leave,” Thompson v. Keohane, 516 U.S. 99, 113 (1995) (internal quotation
omitted).
The state court noted several factors militating against a finding of custody:
that Embry voluntarily agreed to the interview and asked that it be held at the
police station, that he was informed that he was not under arrest, and that he was
given several breaks during the interview. Near the end of the interview, Embry
asked whether the police were going to arrest him. There was sufficient evidence
1
Because the parties are familiar with the facts of the case, we repeat them
only as necessary to explain our reasoning.
2
from which a reasonable fair-minded jurist could determine Embry was not in
custody when he made his admissions.
AFFIRMED.
3