                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 27 2013

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



                            FOR THE NINTH CIRCUIT


MICHAEL MICKEY FRADIUE,                          No. 11-15818

              Petitioner - Appellant,            D.C. No. 2:00-cv-02209-MCE-
                                                 KJN
  v.

CHERYL PLILER, Warden; ATTORNEY                  MEMORANDUM*
GENERAL CA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                      Argued and Submitted December 3, 2013
                             San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       State prisoner Michael Mickey Fradiue appeals from the district court’s

denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirm. Because the parties are familiar with the history of this case, we need not

recount it here.

      The question in this case is whether the California Court of Appeal’s

decision in this case was contrary to, or an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States.1

28 U.S.C. § 2254(d)(1). The district court correctly concluded that it was not.

      A state court’s decision is “contrary to” clearly established federal law if it

“applies a rule that contradicts the governing law set forth in [Supreme Court]

cases or if it confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme Court] and nevertheless arrives at a result different from

[Supreme Court] precedent.” Early v. Packer, 537 U.S. 3, 8 (2002) (internal

quotation marks and citation omitted). A state court’s decision is an “unreasonable

application of” federal law if it “identifies the correct governing principle from [the

Supreme Court’s] decisions but unreasonably applies that principle to the facts of

the prisoner’s case[.]” Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)).



      1
         The relevant state court adjudication is “the last reasoned judgment by the
state courts,” which was in this case the California Court of Appeal July 12, 2000,
decision on direct review. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

                                           -2-
      Here, the issue is whether Fradiue was in custody within the meaning of

Miranda v. Arizona, 384 U.S. 436 (1966), when he was interrogated in

administrative segregation while imprisoned. There is no per se rule that a

prisoner is in custody for Miranda purposes simply because he is in prison. United

States v. Turner, 28 F.3d 981, 983 (9th Cir. 1994). Instead, prisoners must make

an additional showing that an officer has “in some way acted upon the defendant so

as to [] deprive[] (him) of his freedom of action in any significant way.” Cervantes

v. Walker, 589 F.2d 424, 428 (9th Cir. 1978) (internal quotation marks and citation

omitted).

      The California Court of Appeal correctly applied the principles of Miranda

and Cervantes,2 and analyzed the case with an examination of the totality of the

circumstances. Here, Fradiue had lived for a month in the cell where he was

interviewed, so he was not placed in a new, coercive environment when he was

questioned. He was not handcuffed during the interview and he admitted that he

could have terminated the interview. Although some jurists might disagree with

the California Court of Appeal on de novo review, its decision was not contrary to,


      2
       Our case law “may provide persuasive authority for purposes of
determining whether a state court decision is an unreasonable application of
Supreme Court precedent.” Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.
2009).

                                         -3-
or an unreasonable application of, clearly established federal law as determined by

the Supreme Court.

       Fradiue argues that the Court of Appeal decision was contrary to Mathis v.

United States, 391 U.S. 1 (1968). In Mathis, the Supreme Court reversed the

conviction of Mathis, an inmate in state prison, because a government agent failed

to warn Mathis of his Miranda rights before questioning him about a crime

unrelated to the one for which he had been serving time in prison. Id. at 2-3. But

Mathis does not stand for the proposition that incarceration alone, or the reduced

freedom attendant to administrative segregation, automatically transforms a

petitioner’s status to one that is “in custody” for the purposes of Miranda, and

Fradiue offers no direct authority for that proposition. See Turner, 28 F.3d at 983

(“We have declined to establish a per se rule that a defendant is in ‘custody’ for

Miranda purposes simply because that defendant is in prison.”).

       Given the very deferential standard of review applicable to federal court

review of habeas petitions from state prisoners, the district court properly denied

the writ.

       AFFIRMED.




                                          -4-
