                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 07 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL HUMPHREY,                                No. 14-56634

              Petitioner - Appellant,            D.C. No. 2:09-cv-04035-GAF-
                                                 DTB
  v.

RANDY GROUNDS,                                   MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                             Submitted May 3, 2016**
                               Pasadena, California

Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.

       Michael Humphrey appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition challenging his conviction for second degree robbery. He

        *
             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 Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
argues he did not waive his Miranda rights knowingly. See Miranda v. Arizona,

384 U.S. 436, 444 (1966). We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.

      Our review of Humphrey’s appeal is governed by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-32, 110 Stat. 1214.

Specifically, Humphrey must establish that the state court’s decision resulted in an

unreasonable application of clearly established Federal law or an unreasonable

determination that he knowingly waived his Miranda rights. See 28 U.S.C. §§

2254(d)(1), (d)(2); see also United States v. Liera, 585 F.3d 1237, 1246 (9th Cir.

2009) (finding that whether a Miranda waiver was made knowingly is a question

of fact). In determining whether the state’s decision was unreasonable, “we look to

the state’s last reasoned decision” on the merits of the claim being appealed. Avila

v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Here, the state’s last reasoned

decision on the merits of Humphrey’s Miranda claim was the California Court of

Appeal’s unpublished opinion in People v. Humphrey, No. B178172, 2005 WL

2844804 (Cal Ct. App. Oct. 31, 2005).

      Humphrey has failed to establish that the California Court of Appeal

unreasonably determined that he waived his Miranda rights knowingly. The

California Court of Appeal based its decision on the “totality of the


                                          2
circumstances.” Humphrey, 2005 WL 2844804, at *3; see United States v. Bernard

S., 795 F.2d 749 (9th Cir. 1986) (“Whether there has been a valid [Miranda]

waiver depends on the totality of the circumstances, including the background,

experience, and conduct of defendant.”). The court determined that Humphrey had

waived his Miranda rights knowingly, because Humphrey was advised of his

Miranda rights multiple times, read them aloud himself, signed the waiver, and,

when asked by an investigating officer whether he wanted to speak, told the officer

“no.” Humphrey, 2005 WL 2844804, at *2-3. The court further noted that “[t]here

[was] no evidence of physical or psychological pressure.” Id. at *3.

      Contrary to Humphrey’s arguments, the court did not discount Cowardin’s

testimony, but recounted it at length. The court based its decision, in part, on

Cowardin’s testimony that—if it were true that Humphrey had told the officer that

he did not wish to speak—Humphrey likely understood that he was waiving his

rights. Id. Additionally, Cowardin testified that Humphrey’s mental skills were

higher when the police questioned him than when she assessed him in jail nine

months later. Id.

      The court did not base its decision solely on the fact that Humphrey had

refused to speak with the investigating officer, or that Humphrey had attempted to

conceal evidence of the offense, but instead considered these facts as part of the

totality of the circumstances. Id.

                                           3
      Humphrey has also failed to establish that the California Court of Appeals

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).

      AFFIRMED.




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