NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 30 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DEANGELO LAMONT MITCHELL, No. 09-16890
Petitioner - Appellant, D.C. No. 2:06-cv-00066-RCJ-LRL
v.
MEMORANDUM*
DWIGHT NEVEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted July 20, 2012**
San Francisco, California
Before: PAEZ and BYBEE, Circuit Judges, and VANCE, Chief District Judge.***
DeAngelo Lamont Mitchell (“Mitchell”) was found guilty of burglary while
in possession of a firearm, conspiracy to commit robbery, robbery with use of a
*
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).
***
The Honorable Sarah S. Vance, Chief District Judge for the U.S.
District Court for Eastern District of Louisiana, sitting by designation.
deadly weapon, and two counts of murder with use of a deadly weapon under
Nevada law. Mitchell was sentenced, inter alia, to two consecutive life sentences
with the possibility of parole after twenty years. Mitchell appealed his convictions
and sentence to the Nevada Supreme Court, which affirmed. He subsequently filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in federal district court, which the district court denied. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Mitchell argues that the Nevada Supreme Court erred in rejecting his
argument that concurrent and consecutive sentences of life with the possibility of
parole constitutes cruel and unusual punishment in violation of the Eight
Amendment when levied against him, a 16-year-old offender convicted only of
felony-murder. This argument is without merit. Although the state supreme court
did not cite to the gross disproportionality principle in analyzing Mitchell’s Eighth
Amendment claim, it cited to Castillo v. State, 874 P.2d 1252, 1257-58 (Nev.
1994), where the court acknowledged and applied that principle. Moreover, the
court’s conclusion was consistent with Solem v. Helm, 463 U.S. 277 (1983), which
stated that “no sentence of imprisonment would be grossly disproportionate” to
felony murder. Id. at 290 n.15. Therefore, the state supreme court’s decision was
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not contrary to, or an unreasonable application of, clearly established Supreme
Court law.
Second, Mitchell argues that the state supreme court erred in rejecting his
argument that admission at trial of certain incriminating statements made to
detectives violated his Fifth Amendment rights. This argument also fails. The
state court cited to the correct legal principles in analyzing Mitchell’s Fifth
Amendment claim. Specifically, it considered the totality of the circumstances
surrounding Mitchell’s interrogation and found that Mitchell was properly advised
of his Miranda rights, that he understood them at the time of his first and second
interrogations, and that his will was not overborne by undue physical or
psychological pressure. The state court’s conclusion was consistent with Oregon
v. Elstad, 470 U.S. 298 (1985), which established that, even where Miranda
warnings are ineffective, a suspect’s Fifth Amendment rights are not violated
unless his confession is in fact involuntary. Id. at 306-07. Because the Nevada
Supreme Court’s decision was not contrary to, or an unreasonable application of,
clearly established Supreme Court law, the district court properly rejected this
claim.
AFFIRMED.
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