                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 06 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


MONTERIO TYRONE PINCKNEY,                        No. 09-17351

              Petitioner - Appellant,            D.C. No. 2:05-cv-00144-FCD-
                                                 CHS
  v.

A. K. SCRIBNER; ATTORNEY                         MEMORANDUM*
GENERAL OF CALIFORNIA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                           Submitted October 4, 2010**
                            San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Monterio Tyrone Pinckney appeals the district court’s denial of his habeas

corpus petition under 28 U.S.C. § 2254. 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).
                                          I

      The state trial court’s determination that Pinckney’s confession was

voluntary is neither contrary to, nor an unreasonable application of, Supreme Court

precedent. The Supreme Court has made clear that “coercive police activity is a

necessary predicate to the finding that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v.

Connelly, 479 U.S. 157, 167 (1986). To the extent Pinckney was tired, hungry or

under the influence, it was on account of his own actions, not those of the officers.

He failed to show that the police “exploited this weakness with coercive tactics.”

Id. at 165.

      The interview was relatively short for a murder suspect. Pinckney was

provided water and soda, along with chips, which he did not eat. The state court

credited the officers’ testimony that he was not promised anything more; this was

not unreasonable. While Pinckney zoned in and out a few times, he was

responsive throughout the interview and was not subjected to repeated or

prolonged questioning. No Supreme Court precedent renders a confession

involuntary in these circumstances.



                                          II


                                          2
      Pinckney’s ineffective assistance claim fails for the same reason. It was not

unreasonable to forego an argument on direct appeal based on involuntariness of

the confession given its lack of merit. Strickland v. Washington, 466 U.S. 668, 689

(1984). By the same token, “there is [not] a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

      AFFIRMED.




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