                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 28 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FRED EUGENE TYSON,                               No. 09-35908

              Petitioner - Appellant,            D.C. No. 3:07-cv-01707-ST

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Janice M. Stewart, Magistrate Judge, Presiding

                       Argued and Submitted October 5, 2010
                                 Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Petitioner-Appellant Fred Eugene Tyson, a state prisoner, appeals the district

court’s denial of his habeas petition. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo the district court’s denial of a habeas petition. Schell v.

Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). Tyson’s habeas petition is governed

by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under

the AEDPA, we must determine whether the state court proceedings “resulted in a

decision that 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). In reviewing a state court decision, we consider the “last

reasoned state-court decision.” Van Lynn v. Forman, 347 F.3d 735, 738 (9th Cir.

2003). In this case, the last reasoned state-court decision is the trial court’s ruling

at Tyson’s 1998 trial.

      Tyson argues that his constitutional rights were violated by the admission at

trial of an incriminating statement that he made in response to custodial

interrogation: “They know I’m innocent. They see me about to win this case so

they are falsely accusing me of having sex with [J.T.]. They are willing to come

up with anything.” It is clearly established federal law that incriminating

statements made during custodial interrogation are not admissible against a

criminal defendant unless the defendant was made aware of her rights to silence

and counsel and voluntarily waived them before speaking. Miranda v. Arizona,

384 U.S. 436, 444-45 (1966). The requirements of Miranda apply when the


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prosecution seeks to use a statement “stemming from custodial interrogation of the

defendant,” but not when the prosecution seeks to use a voluntary statement. Id. at

444, 472.

      It is undisputed that Tyson was in custody when he made the incriminating

statement because he was questioned in a locked room in a county detention center.

We must determine whether Tyson’s statement was made in response to

interrogation.

      It is clearly established federal law that “interrogation,” for purposes of

Miranda, includes “express questioning” or “any words or actions on the part of

the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from

the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Tyson argues

that he was interrogated by Rhodes because he was asked an express

question—whether J.T. was his son. Tyson also argues that Rhodes’s words and

actions were the “functional equivalent” of express questioning because Rhodes

should have known that they were reasonably likely to elicit an incriminating

response from Tyson.

      We conclude that the state court did not unreasonably apply federal law

when it determined that Tyson’s statement was not the result of custodial


                                          3
interrogation. Tyson’s statement was not made in response to an express

question—it was made in response to Rhodes’s assertion that he wanted to talk to

Tyson about a criminal investigation. It was not unreasonable for the state court to

conclude that Rhodes’s assertion (that he wanted to talk about a criminal

investigation) was not reasonably likely to elicit an incriminating response. Nor

was it unreasonable for the state court to find that Tyson’s incriminating statement

was made voluntarily.

      Because Tyson’s statement did not stem from custodial interrogation, the

protections of Miranda do not apply. In light of this determination, we need not

reach the question of whether Tyson knowingly, intelligently, and voluntarily

waived his rights. The state court’s decision to deny Tyson’s motion to suppress

was not contrary to nor an unreasonable application of clearly established federal

law. We affirm the district court’s denial of habeas relief.

      AFFIRMED.




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