                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 29 2013

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

RAUL MALDONADO,                                 No. 12-55640

              Petitioner-Appellant,             D.C. No. 2:07-cv-01110-GW-FMO

  v.
                                                MEMORANDUM*
R.J. SUBIA, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                             Submitted July 11, 2013**
                               Pasadena, California

Before: TASHIMA and BYBEE, Circuit Judges, and BENCIVENGO, District
Judge.***




       *
             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 Honorable Cathy Ann Bencivengo, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
      Raul Maldonado, a state prisoner, appeals the district court’s dismissal of his

28 U.S.C. § 2254 petition for writ of habeas corpus challenging his jury conviction

of murder with a handgun for the benefit of a criminal street gang. Maldonado

contends that, in making certain custodial statements, he did not knowingly,

intelligently, and voluntarily waive his rights under Miranda v. Arizona, 384 U.S.

436 (1966). Maldonado also seeks to expand the certificate of appealability

(“COA”) to address his claim that he did not reinitiate contact after invoking his

right to counsel. The facts are known to the parties. We have jurisdiction pursuant

to 28 U.S.C. §§ 1291 and 2253. We affirm the district court’s dismissal and

decline to expand the COA.

      We review the decision to deny Maldonado’s petition for writ of habeas

corpus under 28 U.S.C. § 2254 de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018

(9th Cir. 2000). Under the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), a habeas petition will not be granted with respect to any claim

adjudicated on the merits in a state court unless the adjudication:

      (1) 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; or
      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.



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28 U.S.C. § 2254(d). A state court decision is an unreasonable application of

clearly established federal law under 28 U.S.C. § 2254(d)(1) “if the state court

identifies the correct governing legal principle from [Supreme Court] decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Williams v.

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

      Maldonado’s appeal raises the unreasonable application of clearly

established Federal law exception for habeas relief. He contends that a reasonable

application of Miranda to the facts adduced at trial should result in a reversal of the

California Court of Appeal’s determination that his waiver of counsel at the police

station was knowing, voluntary, and intelligent. We conclude this argument lacks

merit under AEDPA’s deferential standard of review. See Harrington v. Richter,

131 S. Ct. 770, 786 (2011) (habeas relief precluded under the Federal law

exception “so long as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision”).

      To be valid, Maldonado’s waiver of Miranda rights must have been

knowing, intelligent, and voluntary, based on the “totality of the circumstances.”

Edwards v. Arizona, 451 U.S. 477, 486 n.9 (1981); Miranda, 384 U.S. at 479.

Because Maldonado was 17 years old at the time, the court’s inquiry must include

“evaluation of the juvenile’s age, experience, education, background, and


                                          3
intelligence, and into whether he has the capacity to understand the warnings given

him . . . .” Fare v. Michael C., 442 U.S. 707, 725 (1979).

      Maldonado contends that his Miranda waiver was the product of coercion.

The California Court of Appeal analyzed the factual record and found that

Maldonado’s statements at the police station before his confession showed that he

understood his rights, he “agreed they did not threaten or coerce him in any way,”

no quid pro quo promise related to his waiver existed, and that, despite the police’s

earlier error of discussing the case immediately after he invoked his right to

counsel at the juvenile detention facility, the totality of the circumstances showed

he subsequently and voluntarily reinitiated contact before voluntarily waiving his

Miranda rights. These findings were objectively reasonable.

      For example, the record supports the California Court of Appeal’s factual

finding that the detectives did not make a quid pro quo promise with Maldonado.

Detectives offered to make arrangements for Maldonado to see his mother, but it

was not until after that offer that Maldonado volunteered to speak about the

shooting. The detectives did not invite such a response. Further, fairminded jurists

could reasonably find that, under the circumstances here, the detectives did not and

should not be expected to foresee that their “promise” would cause Maldonado to

reinitiate communications about the shooting.


                                          4
      Also supporting the Court of Appeal’s finding that the waiver was knowing,

intelligent, and voluntary are the facts showing that, in response to Maldonado’s

unsolicited offer to make a statement about the shooting, the detectives

demonstrated caution and did not disregard Maldonado’s earlier request for

counsel. The detectives told Maldonado that they could not talk to him about the

case because he had already invoked his right to an attorney. Again, Maldonado

responded that he would “tell the truth of what happened that day, even without an

attorney.” At the police station, Maldonado confirmed that, during the car ride

over to the station, he stated that he “wanted to talk” without an attorney. Before

obtaining Maldonado’s confession, the detectives again advised him of his

Miranda rights and confirmed that his waiver was knowing, intelligent, and

voluntary.

      Maldonado contends that the promise to arrange for a visit from his mother

is especially important to this court’s totality of the circumstances analysis given

his youth, his emotional condition, and his purported understanding that his waiver

of the right to counsel was made in exchange for a visit with his mother. However,

the California Court of Appeal did consider Maldonado’s characteristics as a

juvenile, including his age (17 years and 9 months), his demonstrated

understanding of how to invoke the right to counsel at the juvenile detention


                                          5
facility, his multiple experiences with the criminal justice system, his level of high

school education, and the absence of evidence showing he may be of low

intelligence. The Court of Appeal reasonably concluded that Maldonado’s

characteristics supported its determination that his confession complied with

Miranda.

      Appellant contends that Michael C. instructs that Maldonado’s request to see

his mother should be viewed as an invocation of his right to remain silent. We

conclude, however, that the California Court of Appeal made an objectively

reasonable determination that Maldonado’s request to see his mother was not an

invocation of his right to remain silent. Maldonado demonstrated his knowledge

and understanding of his right to counsel at the juvenile detention facility when he

specifically asked for an attorney. A reasonable reading of the record supports the

finding that Maldonado wanted to see his mother because he missed her, not

because he wanted to invoke his right to counsel or to remain silent.1

      Fairminded jurists could reasonably find that Maldonado made a knowing,

intelligent, and voluntary waiver of his Miranda rights based on the totality of the

circumstances.

      1
              Unlike Maldonado’s father, who had been able to visit him at the
juvenile detention facility, his mother had not visited because she lacked the
identification that the facility required of visitors.

                                          6
      Maldonado asks this court to expand the COA to consider whether the

determination that he reinitiated contact about the shooting was both objectively

unreasonable and an unreasonable determination of the facts. The required

showing to expand a COA is that “[a] habeas petitioner’s assertion of a claim must

make a ‘substantial showing of the denial of a constitutional right.’” Hiivala v.

Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (quoting 28 U.S.C. § 2253(c)(2)). In

order to make this showing, a petitioner “must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the issues [in a

different manner]; or that the questions are adequate to deserve encouragement to

proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (alteration in

original, internal quotation marks omitted).

      The district court denied Maldonado’s request for a COA on this issue. The

uncertified issue arises from Maldonado’s first ground for habeas relief, which

reads: “Petitioner invoked his right to counsel under Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602 (1966), and did not reinitiate contact with the police.” The

district court specifically denied Maldonado a COA on that ground, finding:

      petitioner has not demonstrated that the denial of Grounds One, Two,
      Four and Five is a decision on which reasonable jurists could debate.
      See Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039. Nor is the decision
      one that could have been resolved in a different manner or one where
      the issues presented are adequate to proceed further. See id.


                                          7
The uncontradicted evidence in this case is that Maldonado voluntarily initiated the

conversation that led to the second admonition of rights and subsequent

confession. Accordingly, we agree with the district court’s determination that the

COA should not include Maldonado’s uncertified issue. Therefore, we decline to

expand the COA.

      In sum, we AFFIRM the district court’s dismissal of Maldonado’s 28 U.S.C.

§ 2254 petition for writ of habeas corpus and decline to expand the certificate of

appealability.

      AFFIRMED.




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