McCarthy v. Hernandez · ¶37
Second, the rule embraced by Justice Kennedy in Seibert does not disturb that proposition. Although we have never held that Justice Kennedy's opinion sets out the holding that courts must follow under Marks v. United States, 430 U. S. 188 (1977), we may assume without deciding—in line with the Second Circuit's precedent, which the parties do not con- test—that it does. See United States v. Capers, 627 F. 3d 470, 476 (CA2 2010). Even if Justice Kennedy's opinion clearly established a rule of federal law cognizable under § 2254(d), that opinion established nothing about a jury's determination of a confession's legality. Seibert concerned a trial court's ruling on a suppression motion, not a jury's assessment of attenuation. 542 U. S., at 604, 606 (opinion of Souter, J.). We have never applied Seibert in any other procedural context. See Bobby v. Dixon, 565 U. S. 23, 26, 29– 32 (2011) (per…Read in context ›
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