NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNDALL DWAINE THOMPSON, No. 16-15080
Petitioner-Appellant, D.C. No.
12-cv-00766-DCB
v.
CHARLES L. RYAN, et al, MEMORANDUM*
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted October 17, 2017**
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,*** District
Judge.
Lyndall Dwaine Thompson, an Arizona prisoner convicted of second-degree
murder, appeals the district court’s denial of his application for a writ of habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
Thompson’s habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Harrington v. Richter, 562
U.S. 86, 97-98 (2011). AEDPA establishes a “highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam) (internal citations and quotations omitted). Under AEDPA, a federal court
may not grant a habeas petition “with respect to any claim that was adjudicated on
the merits in State court proceedings” unless the state court’s decision was either
(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States;” or (2)
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
1. Because Thompson voluntarily waived his Miranda rights with respect to
statements made to police on the night of the homicide, the state court did not
unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984) in concluding
that Thompson’s counsel was not ineffective for failing to move to suppress his
custodial statements. See Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (the
right to remain silent can be waived when the waiver is made knowingly and
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voluntarily). And, given the police officers’ consistent testimony regarding
firearms found at the crime scene, the post-conviction relief court did not
unreasonably apply Strickland in concluding Thompson’s counsel’s investigation
and questioning was sound trial strategy and, in the alternative, Thompson failed to
establish prejudice. See Strickland, 466 U.S. at 687-89.
2. Thompson also argues the PCR court unreasonably rejected his claim that
the government used false evidence—in the form of an altered recording of his
custodial statement—to secure his conviction. The two transcripts Thompson
points to, however, both contain Thompson’s full interview with the police. The
government made one transcript from the recording of the interview while
Thompson’s attorney obtained the other. The PCR court reasonably found that any
differences between the transcripts were minimal and due not to redactions, but to
variations in formatting. Those findings are not “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Moreover, the redacted transcript prepared
by the government was not admitted into evidence.
3. As there were no disputed material facts presented to the PCR court, the
court “could have reasonably concluded that the evidence already adduced was
sufficient to resolve” any factual questions related to Thompson’s claims, and
therefore that court’s denial of Thompson’s request for an evidentiary hearing was
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not unreasonable. Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012).
Likewise, as Thompson’s petition could be resolved on the record, the district
court did not abuse its discretion in denying Thompson’s request for an evidentiary
hearing. Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007); Totten v. Merkle, 137
F.3d 1172, 1176 (9th Cir. 1998).
AFFIRMED.
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