                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

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



                            FOR THE NINTH CIRCUIT


JANETTA LYNN LEIVA,                              No. 08-15008

              Petitioner - Appellant,            D.C. No. CV-04-06669-WMW

  v.
                                                 MEMORANDUM *
MATTHEW CATE,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                William M. Wunderlich, Magistrate Judge, Presiding

                           Submitted December 8, 2009**
                             San Francisco, California

Before: TASHIMA, GRABER and BYBEE, Circuit Judges.

       Petitioner-Appellant Janetta Lynn Leiva appeals the district court’s denial of

her petition for writ of habeas corpus. Leiva argues that her Fifth Amendment

right against self-incrimination was violated when her statements, made during a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
pre-trial competency examination and without Miranda warnings, were admitted

into evidence at the insanity phase of her murder trial. We affirm.

      Because Leiva’s habeas petition was adjudicated on the merits in state court,

we may grant the petition only if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);

see also Lindh v. Murphy, 521 U.S. 320, 326 (1997). The relevant state court

decision here is that of the California Court of Appeal, see Ylst v. Nunnemaker, 501

U.S. 797, 805-06 (1991), which held that the admission of Leiva’s statements did

not violate her Fifth Amendment rights. Leiva argues that this decision was

contrary to, or involved an unreasonable application of, clearly established federal

law as determined by the Supreme Court in Estelle v. Smith, 451 U.S. 454 (1981).

      In Estelle, the Supreme Court held that “[a] criminal defendant, who neither

initiates a psychiatric evaluation nor attempts to introduce any psychiatric

evidence, may not be compelled to respond to a psychiatrist if his statements can

be used against him at a capital sentencing proceeding.” Id. at 468 (emphasis

added). Estelle does not control Leiva’s case because Leiva presented an insanity

defense and introduced psychiatric testimony in support of that defense. The

Estelle Court expressly stated that its holding would be different if the defendant


                                           2
had asserted an insanity defense and the government introduced a psychiatric

examination to rebut the defendant’s psychiatric evidence. See id. at 465. In a

later case, the Supreme Court confirmed that if a defendant “presents psychiatric

evidence, then, at the very least, the prosecution may rebut this presentation with

evidence from the reports of the [psychiatric] examination that the defendant

requested” without violating the Fifth Amendment. Buchanan v. Kentucky, 483

U.S. 402, 422-23 (1987). Thus, the California Court of Appeal’s decision was not

contrary to, or an unreasonable application of, clearly established Supreme Court

precedent.

      AFFIRMED.




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