Ray Rome Vailuu, Petitioner-appellant, v. John Ratelle, Warden; Attorney General of the State Ofcalifornia, Respondents-appellees, 82 F.3d 424 (9th Cir. 1996)

Before: GOODWIN, WIGGINS, and O'SCANNLAIN, Circuit Judges.

MEMORANDUM^** 

Ray Rome Vailuu, a California state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction by jury trial for two counts of first degree murder. Vailuu contends he was in custody when the police interrogated him without warning him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He also contends his confession was coerced in violation of the Fifth Amendment.

The district court presumed correct the trial court's and state appellate court's finding that Vailuu was not in custody during his initial 15-minute conversation at the police station. After the district court entered judgment, however, the Supreme Court held that "the issue whether a suspect is 'in custody,' and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review" by the federal courts. Thompson v. Keohane, 116 S. Ct. 457, 460 (1995). Accordingly, we vacate the district court's judgment and remand for the district court to review independently the issue whether Vailuu was in custody during his initial questioning.

VACATED and REMANDED.