                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 25 2012

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

ROBERT ROY GOFF,                                 No. 11-35651

              Petitioner - Appellant,            D.C. No. 3:09-cv-00237-ST

  v.
                                                 MEMORANDUM*
JEFF PREMO,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                       Argued and Submitted July 11, 2012
                               Portland, Oregon

Before: B. FLETCHER and PREGERSON, Circuit Judges, and WALTER, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
      Oregon state prisoner Robert Goff appeals from the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

      Goff was questioned by a Clackamas County Sheriff’s Department Detective

while he was in the hospital recovering from surgery. The Detective did not advise

Goff of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Goff was not

under arrest, but argues that he was in custody at the time of the questioning

because he was not free to leave the hospital due to medical holds that hospital

personnel had placed on him. Goff argues that the State’s use of what he said to

the Detective violated his Fifth and Fourteenth Amendment rights.

      Statements obtained in violation of Miranda may be used at trial to impeach

the defendant’s testimony. See Harris v. New York, 401 U.S. 222, 224 (1971).

Goff’s statements to the Detective were used only to cross-examine Goff and in the

State’s rebuttal. The statements were not admissions of guilt and were used only to

impeach Goff’s prior testimony. Because the use of Goff’s statements for

impeachment was permissible, even if the statements were obtained in violation of




                                          2
Miranda, there was no unreasonable application of Federal law as established by

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

      Even if we were to conclude that Goff’s statements should have been

suppressed entirely, we would conclude that their use at trial did not have “a

substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Anderson v. Terhune,

516 F.3d 781, 792 (9th Cir. 2008) (en banc). The victim’s testimony at trial was

corroborated by photos of the victim’s injuries taken by police shortly after Goff

assaulted her the first time and by testimony about a second assault from the

victim’s daughter and neighbor. In addition, Goff essentially admitted his own

guilt in letters that he wrote to the victim after the incidents. The State also

impeached Goff with his statements to another police officer, the admissibility of

which Goff does not challenge.

      We express no opinion as to the merits of Goff’s argument that he was in

custody for Miranda purposes when the Detective questioned him.

      AFFIRMED.



      1
       At oral argument, Goff’s counsel asserted that the use of the statements for
impeachment was impermissible under State v. Isom, 761 P.2d 524 (Or. 1988).
Whatever the merits of this argument under state law, it is not a basis for federal
habeas relief.

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