FILED
NOT FOR PUBLICATION MAR 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RUSSELL W. PIERCE, No. 07-55920
Petitioner - Appellant, D.C. No. CV-05-05277-SGL
v.
MEMORANDUM *
JAMES D. HARTLEY,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Submitted March 1, 2010
Pasadena, California
Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY,** District
Judge.
Russell Pierce appeals the district court’s denial of his habeas corpus petition
under 28 U.S.C. § 2254. He claims that effective counsel would have moved to
suppress statements elicited in violation of Miranda v. Arizona, 384 U.S. 436
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
(1966), and that because his counsel failed to do this, his no-contest plea was
unknowing and involuntary. We certified these issues for appeal, and affirm.
Pierce’s first state habeas petition, which raised an ineffective assistance of
counsel claim, was denied on the merits. Because the trial court’s decision was
unreasoned, we review it independently to determine whether it was contrary to, or
an unreasonable application of, clearly established United States Supreme Court
precedent. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). We conclude it
was not. There is no showing that counsel acted unreasonably in negotiating a plea
with a fixed sentence that substantially lessened Pierce’s exposure, rather than
pursuing a Miranda issue that was destined to fail. Strickland v. Washington, 466
U.S. 668, 687-89 (1984). Pierce went to the police station voluntarily, was told he
was not under arrest and was free to leave, and voluntarily started confessing to
burglaries. No authority indicates that his non-custodial status somehow changed
once he confessed to two burglaries, or that the trial court would have accepted any
such argument.1 Pierce’s interview lasted approximately forty-five minutes, with a
five-minute break. He was not coerced into continuing to confess; that he was
brought a glass of water when a drinking fountain was nearby does not suggest
1
Cf., e.g., Thompson v. Keohane, 516 U.S. 99, 102-04 (1995) (defendant
confessed to killing his wife but was allowed to leave); Oregon v. Mathiason, 429
U.S. 492, 493-94 (1977) (defendant was released after confessing to theft);
Yarborough v. Alvarado, 541 U.S. 652, 658-59 (2004) (defendant left after
confessing to an attempted robbery and murder).
otherwise. Nor would competent counsel have moved to suppress just because
there was “nothing to lose.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1419-20
(2009). Finally, Pierce points to Missouri v. Seibert, 542 U.S. 600 (2004), but that
decision offered no prospect of success for a motion to suppress. Not only was
Seibert not on the books at the time, but unlike what happened here, it involved
questioning after the suspect had been arrested but before Miranda warnings were
given.
Pierce likewise made no showing of “a reasonable probability that, but for
counsel’s errors, he would not have pleaded [no contest] and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). At most he now
suggests that he might have entered into a more favorable plea, but this is neither
substantiated in the record nor sufficient. Id.
AFFIRMED.