more o'neal jape behalf of the warden i would like to reserve two minutes for rebuttal the district court decision should be vacated inmate donovan simpson should not be granted any hate b s relief simpson's petition for hevia scorpius should be denied and dismissed with prejudice the district court committed clear error and did not apply the proper deferential review standard contrary to the district court's decision how's the fields directly in the courts prior determination regarding simpson's april two thousand statements additionally a prior panel from this court maybe harmless error determination regarding june simpson's june twentieth two thousand statement and that harmless their determination was directly dependent on the quotes conclusions regarding the april two thousand statements so how's be fields also alters the outcome regarding simpson's june twentieth two thousand state and the state appellate court determined that simpson was not in custody for miranda purposes during the april two thousand interviews and that determination is entitle  alternative finding the state appellate court also found that even if simpson had been in custody for miranda purposes that admission of the april two thousand statements would have been harmless air and that the totality of the circumstances past and considered the same factors that the supreme court reiterated in how's the fields the state appellate court relied on the fact that these interviews were short duration simpson was not a suspect at the time he was not confronted with any evidence of his own goal he did not implicate himself the interviews were amicable there were no threats or coersion and there was no additional restriction on his freedom like the state court this this court has followed other circuit courts and use that same analysis that miranda warnings are not required unless an inmate is in house of the supreme court sanction the exact same approach that the state appellate court used in simpson's case which was a traditional context specific analysis to determine whether the facts of the case were likely to create an atmosphere of coercion assuming that you're correct on the april statements could you address the question about the june twentieth statement ye dependent and the determination regarding the april two thousand and statements are you conceding that the june twentieth statement did violate his constitutional rights but you're to go to harmless  it is it's clear that housed directly affects the harmless error determination as opposed to the the the court's determination that it was or not and that doesn't even apply to the june twentieth state doesn't blow know not all constitution that constitutional determination as to whether the june twentieth statement was harmless error the prior panels view the statements together and said it's harmful air finding was reinforced by a combination of admitting the april two thousand statements and the june twentieth two thousand statement the court of your thrust that is to say we should reevaluating the harmless error determination of the prior panel because it relied on the statements being in violation of grand did you raise this argument in the district court yes we did delicate question about whether the june twentieth statement is as you're now arguing arguing harmless error or is that the question i mean i don't understand the  house i agree with at least superficially with with judge griffin the house thing doesn't the house ruling doesn't apply directly to the june statements over there there were four statements in this  around that and the harmless error determination regarding the june two thousand statement is directly dependent on the admissibility of the april two thousand  was reinforced by the combination of admitting the april two thousand statement and the june two thousand statement there also in the prior  disagreement one of the problems is that the harmless error determination really focused and evaluating the simpson's credibility and it's impossible to pinpoint the exact tipping point when the jury would have found that he wasn't credible and it would be impossible in is reviewed to say well it happened after the first april statement it happened after the second the it must have been the third it was the fourth it is impossible to say the issue is whether  there is reasonable justification for the state courts determination of the state court held that the june twentieth statement let me see if i'm not i may be getting totally confused but the june twentieth statement the state court said was voluntary that they did not make a harmlessness ruling that's correct they didn't need to that's correct ok what do we make of that but the only harmless error ruling was it was done by the prior panel in this court which also shows the room for reasonable disagreement and this in this case  error determination and properly applied chapman they did not conduct any harm with their determination regarding the june twentieth i'm sorry i thought the state court the and the state court said that was voluntary correct in the in the prior panel and this court applied said well he was in custody but but because of what he said it's harmless  so i mean i think we're getting lost here so let's try to go back to the basic question assuming that how this results in the april statements in the totality of the circumstances being this so we're getting directly then to the june twentieth statement the prior panel said the june twentieth statement admission violated constitutional rights and when you looked at the june twentieth statement as well as the april ones there was not harmless error and therefore granted habeas carex supreme court says go back rethink house assuming that house says the april statements are ok then we have the question what did you challenge in the district court and what are you challenging here visa v the june twentieth statement both in the days when are you claiming in the district court and here that the june twentieth statement is properly admitted and or that even if wrongfully admitted it is harmless  believe there is a harmless error argument because up until that point the court had ever found that it was an error to admit that statement since he didn't raise it in the prior repealed or to have it waived woman is under an obligation to if the warden is arguing that it was an error to raise an alternative argument that any error was harmless i believe if there was an isolated  evidence is going to be harmful one would again on the other and that doesn't mean it's it's harmful air constitutional magnitude to admit the why why is or why are you saying it's harmless error to admit the june twentieth statement  offenders that those admissions alone would be enough but that is in jury is is it not to his defense these further admissions as to  participation you are talking about the evidence was sufficient to convict him before the june twentieth statement well that's a different issue that you have sufficient evidence but here you've got additional evidence beyond what's needed for conviction but would likely persuade the jury to to convict him because of his extensive knowledge of the facts i mean sufficiently ok so tell me under brock why the twenty june twentieth statement is not prejudicial injurious well to be substantially injurious i think there is still the problem of are these statements weighing on his credibility in one fashion or another and it's impossible to pinpoint the exact tipping point and yes but in the june twentieth statement that's the first time he said that he knew about the whole thing ahead of time no he he said in june that he was more involved than he did initially let on the day before the fire smith asked sampson if he could drive kelly somewhere that evening but that isn't that isn't anywhere near what he said on the twentieth well one thing is that one of the courts i know it cited that he was all over the place and that june twentieth argument and that's correct i mean he did make some of the same admissions that he made in his june he went on to say that he grew about it i had a time and and what he had done the question is how that can be harmless even if the  twentieth statement is held to be voluntary and admitted but that's a piece of substantially harmless and i think it's impossible to is that the i mean the evidence has to be taken indicated the admission of simpson's june twentieth stationhouse statement which this court in its prior opinion called by far the most damaging evidence against simpson particularly with respect to his involvement in the planning of the offense violated clearly established law and that ruling independently supports the partial hey vs relief ordered by this court into two thousand and ten because the wording never raised nor demonstrated perjury if it's question that any of this error was harmless the wording waived it the word affirmatively conceded it before this court during oral argument in two thousand and ten and that makes perfect sense there is no way in which this error could be said to not be substantial and injurious to the particular convictions that are currently at issue in front of this court there is simply no way in which the convictions were quote surely an attributable to this error and the court need go no further all simpson is asking is for an affirm and support of the judgment this is an argument that is fully and independently sufficient to support the judgment this court ordered in two thousand and ten in which the district court ordered below the warden make the harmless error argument in the district court and removed from the supreme court or the worded statements on the harmlessness are incredibly confused in the district court it's not at all clear to me that the issue was raised but even if it was it is too late in this case is as your honor noted at the outset is on remain and from the united states supreme court on a narrow question which is in light of house versus fields does the court's judgment need to change now it doesn't need to change for a few reasons but one of the reasons is this court's two thousand and ten ruling on the june twentieth statements is an independent and sufficient ground to support the judgment that's unaffected by house the harmless error determination when it would tip the word never raised whether it was harmless  errors statement in the court of appeals our court of appeals first opinion rely on the rear end of violations in the april statements not at all and i want to be clear about this because what the court raised and addressed in the two thousand and ten opinion was whether or not the april statements were harmless the warden raised throughout the litigation including the state court and in the district court the question of whether the april admission was harmless error the panel responded by answering that question by saying the april statement harmed simpson now in the course of explaining why the april statements harm simpson the court discussed the ways in which the june twentieth statements also harms simpson but the court did not separately address the june twentieth harmfulness because in response to a question by the court to the warden's counsel the word said i'm not saying that those questions were hard that the junior admission of the june twentieth statement was harmless error that was the state of the two thousand and ten panel opinion now what i think the panel said in two thousand and ten with respect to the june twentieth statement demonstrates why the  was harmful but the panel itself did not resolve that question and that issue is now live in front of this court assuming the april statements come in the court need not necessarily resolve whether or not the it will statements should come in because again a simpson has been arguing the panel's chuen excuse me the panel's two thousand and ten decision already creates the ground on which to support the judgment which again is partial hay vs relief only as to the most serious specific intent convictions that simpson was facing and i do wan correct the word spoke a few moments ago about the june sixteenth and the june twentieth admissions and i want to i want to be very clear because i believe the word and said some things about what happened on june sixteenth simply didn't happen at all and i want to correct the record and make sure that that we understand what happened on june sixteenth the day of the arson simpson said on june sixteenth that he had been paid a small amount of crack in order to drive the other defendant darryl kelley somewhere simpson then drove kelly as you know as you know somewhere around they drove around they  they smoked crack then kelly gets out of the car simpson poles around the corner picks the other coat you know kelly up and they drive away that is the substance of the june sixteenth statement only on june twentieth did simpson is minute even greater involvement in the planning of the crime and there are several critical pieces of evidence on the june twentieth statements the first is simpson stated for the first and only time he was present one week before when the arson was planned another person involved in the crime explained her motivation for the crime which was that she and another woman were sort of competing dope dealers and they had a feud  and this was explained to simpson a week before the arson the prosecutor later uses this to impute that woman's motive to simpson also for the first and only time simpson admits he was present when the co defendants discussed how to make the molotov cocktails that never happened on june sixteenth we've pointed out in our brief and throughout this litigation it was never discussed on june sixteenth it was for the first  on june twentieth again simpson acknowledged for the first time on june twentieth that he knew what was going to happen well he was driving kelly to the arson these statements greatly reduced to leap the jury had to make in attributing the purpose to kill simpson those june twentieth statements also greatly impacted in prejudiced simpson's credibility the entire purpose of the june twentieth statement was for simpson to take a polygraph to prove his truthfulness to the officers but he began that statement by first retracting all this prior to missions and saying he was nowhere near the crime and then  deeper involvement and then after he admitted even deeper involvement the officers continued to cross examine him saying you know is that it should throw the bombs did you make them and simpson continually denied any further involvement in the officers basically said you know we had a problem with your truthfulness in the past you better make sure you're telling us the truth and the entire focus of the june twent finally the june twentieth statement permeated the trial it was the keystone of the prosecution's case against simpson as to these most serious charges and that's most clear from the closing statement which i urged the court to look at for example the prosecution is saying initially he told a polygraph examiner he was it shani way but again he broke down and even got more obvious just that time he admitted to you they planned to kill the statement goes on it's simply impossible for the warden to show that these the admission of the statement the way that it was actually used at simpson's trial  fail to have a substantial unheard injurious of fact and that these verdicts were surely an attribute of all that air and i think the words own statements today when she says it's impossible to pinpoint what might have been the  cause is because the state's evidence as to simpson's specific intent crimes was so weak it hung by a thread and this as this court said in its prior two thousand and ten opinion the state had to come up with something creative they had to cobble all of these statements together to sort of scrape over the finish line and so the fact that the april statements were deemed harmful says nothing about whether the june twentieth statement was also harmful and clearly it was so are we applying the standard standard of unreasonable application with respect to be april statement with respect to the june twentieth statement this  unconstitutional admission of the june twentieth statement was resolved by the panel in two thousand and ten and it's not in front of this court as part of the limited remain and her house versus fields the word also hasn't raised it on appeal to this court so even the warden is not asking this court to go back and reconsider whether that statement was i'm constitutionally admitted it's simply the lawyer in effect you're saying we're bound by that determination in the twenty ten in that the and because the warden never raised the question whether that was harmless error and again that's the word and burden to both raise and demonstrate harmless error the issue is a sensually closed in simpson view this case with good judgment is completely resolved by the court's two thousand and ten opinion it is an independent fish and ground because the worden basically had to prove harmlessness and not only did not s and i don't think that's quite correct because i think this statement is very injurious and very prejudicial but i just i just thought under that shows that it was not harmless error rather than the i mean who is burden is it when the evidence is equal under broke and i believe the state bears that burden you're right ok i want to take a few moments just to address the april statements simpson also prevails under these statements now surely white house versus fields did was it said the court applied the wrong standard there isn't a bright line test mathes doesn't compel a bright line standard whenever a prisoner is taken into private and questioned about events outside the prison does not necessarily mean he was in custody and there's actually no dispute between the warden and simpson on this question we agree on the standard to be applied we disagree about whether the state court was objective lee unreasonable in applying it and i think there are two key reasons i want to focus on first it's undisputed that simpson was in voluntarily isolated with officers who never told him he was free to leave the duration of simpson separation from the in the prison population there for was dependent upon his in not on something incident to prison life that is simpson could never sort of walk around and go wherever he pleased but that the officers controlled the duration of the interrogation and in shots or the supreme court  this out as if to say this is the kind of thing that makes someone in custody and have the supreme court emphasize this fact in in house the supreme court called it the most important fact and indeed it is courts of appeals and state courts for decades have emphasized that when you tell someone you are free to leave it is a very tough burden to bear to show custody nonetheless and here it's completely undisputed between the word and simpson that simpson was never told he was free to leave putting the balance of power with the  early in the you're probably asking this just for future purposes maybe obviously if he's in custody if he's in prison and nobody's going to say you're free to leave like you can go down and knock on the front door and it open and you can go home i gather what that would mean is you would say to the interrogator you're free to leave that is you can go back to your cell you don't have to sit here and talk to is that right ok all right i just want to make sure that was what we were talking about yes and secondly i c m m c i'm out of time it was just state your second point of the friendly and this is the point that the officers made clear to simpson that they would be deciding whether he would stay in prison or be let free and this in particular creates the kind of in inherently compelling pressure that undermines a defendant's will to resist and to compel him to speak w otherwise would not do so freely thank you thank you two bottles of alcohol filled them with gasoline they brought the bottles to leo who showed them how to make a mallet top cocktail simpson and kelly then went to the area one fifty one south whelan avenue and drove into an alley after smoking some crack kelly got out of the car with two bottles and a few seconds later appellant her glass breaking and then sock helli running back towards the cars without the bottle the bottles the two sped away to a crack house where they page arrived and paid them both with crack cocaine so those are the admissions that he did making is in his june sixteenth statement your opponent says that this was decided with regards to the june twentieth statement in the twenty ten six circuit opinion and is not affected by the g v are based on ho is that correct well relief was only granted because the in terms of the june twentieth statement because the court found it to have a substantial injurious the facts and the jury's verdict and  finding in the twenty ten sixth circuit opinion that it was constitutional error to admit the june twentieth statement is that even before us did you litigate that either in the district court on remand or in your briefing here we did we attempted to litigate it and in the district court although the district court obviously did not consider it or was not going to revisit that issue