                                                                                FILED
                            NOT FOR PUBLICATION                                  APR 23 2013

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



                             FOR THE NINTH CIRCUIT


RAFAEL BARRETO,                                   No. 10-15591

              Petitioner - Appellant,             D.C. No. 3:08-cv-02008-MHP

  v.
                                                  MEMORANDUM*
WILLIAM KNIPP, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Marilyn H. Patel, Senior District Judge, Presiding

                             Submitted April 19, 2013**
                              San Francisco, California

Before: HAWKINS, GRABER and CHRISTEN, Circuit Judges.

       Rafael Barreto appeals the district court’s denial of his petition for writ of

habeas corpus. We review denial of Barreto’s habeas petition de novo. DeWeaver

v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009).


        *
             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 last reasoned decision from state court separately analyzed both waiver

of Barreto’s Miranda rights and the voluntariness of his statements to the police.

See Colorado v. Connelly, 479 U.S. 157, 163, 167–70 (1986). The state court

therefore did not unreasonably apply clearly established federal law by conflating

two distinct issues. See 28 U.S.C. § 2254(d).

      The state court concluded that Barreto knowingly and voluntarily waived his

Miranda rights. At worst, fairminded jurists could disagree as to whether the state

court’s conclusion was correct. See Harrington v. Richter, 131 S. Ct. 770, 786

(2011). Barreto is therefore not entitled to relief on his Fifth Amendment claim.

Id.

      Barreto has not made a substantial showing that his statements to police

were coerced and therefore that his Fourteenth Amendment rights were violated.

See 28 U.S.C. § 2253(c)(2). Therefore, we decline to issue a certificate of

appealability on this issue. See 28 U.S.C. § 2253(c)(1)(A).

      AFFIRMED.




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