Smith v. Scribner , 384 F. App'x 672 ( 2010 )

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                                                                            FILED
NOT FOR PUBLICATION                              JUN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSIAH E. SMITH,                                  No. 08-55451
Petitioner - Appellant,            D.C. No. 2:06-cv-05305-VBF-SH
v.
MEMORANDUM *
L. E. SCRIBNER, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted May 26, 2010 **
San Francisco, California
Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
California state prisoner Josiah E. Smith appeals from the district court’s
judgment denying his section 2254 petition. We have jurisdiction under

28 U.S.C. §2253

, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Smith contends first that inculpatory statements attributed to him by the
police were per se inadmissible under the rule of Miranda v. Arizona,

384 U.S. 436

(1966), and Edwards v. Arizona,

451 U.S. 477

 (1981), as his request to speak to a
parent operated as a request for counsel. This argument does not afford a basis for
habeas relief. The Supreme Court has not held that the request to speak to a parent
or grandparent is tantamount to a request for counsel, so as to render any
statements made following such a request per se inadmissible under the Fifth and
Fourteenth Amendments. See

28 U.S.C. §2254

(d)(1); Fare v. Michael C.,

442 U.S. 707

, 719 (1979) (“The per se aspect of Miranda was thus based on the unique
role the lawyer plays in the adversary system of criminal justice in this country.”);
see also People v. Lessie,

47 Cal.4th 1152

, 1163-64, 1169 (2010) (Fare left no
room for the proposition that a minor’s request for a parent renders his statements
per se inadmissible under Miranda; waiver in such cases must be evaluated by
looking at the totality of the circumstances).
Smith next contends that his alleged statements were inadmissible under a
totality of circumstances analysis. This argument also fails. The California Court
of Appeal was not objectively unreasonable in concluding that Smith’s Miranda
waiver was voluntary where the record reveals an absence of police coercion
during Smith’s brief interrogation. See

28 U.S.C. §2254

(d)(1); Williams v. Taylor,

529 U.S. 362

 (2000); Fare,

442 U.S. at 725

 (totality of circumstances analysis is
appropriate to determine validity of juvenile’s Miranda waiver); Colorado v.
Connelly,

479 U.S. 157

, 167, 169-70 (1986) (coercive police activity is necessary
to a finding of involuntariness).
Moreover, even if admission of Smith’s alleged statements had been
erroneous, the error cannot be said to have had a substantial and injurious effect on
the jury’s verdict, given the overwhelming independent evidence introduced
against Smith at trial and the prosecution’s limited reliance on Smith’s statements.
See Fry v. Pliler,

551 U.S. 112