                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         OCT 27 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

LYNDALL DWAINE THOMPSON,                         No.   16-15080

                Petitioner-Appellant,            D.C. No.
                                                 12-cv-00766-DCB
 v.

CHARLES L. RYAN, et al,                          MEMORANDUM*

                Respondents-Appellees.

                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                           Submitted October 17, 2017**
                             San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,*** District
Judge.

      Lyndall Dwaine Thompson, an Arizona prisoner convicted of second-degree

murder, appeals the district court’s denial of his application for a writ of habeas

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.

      Thompson’s habeas petition is governed by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Harrington v. Richter, 562

U.S. 86, 97-98 (2011). AEDPA establishes a “highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given

the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam) (internal citations and quotations omitted). Under AEDPA, a federal court

may not grant a habeas petition “with respect to any claim that was adjudicated on

the merits in State court proceedings” unless the state court’s decision was either

(1) “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or (2)

“based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      1. Because Thompson voluntarily waived his Miranda rights with respect to

statements made to police on the night of the homicide, the state court did not

unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984) in concluding

that Thompson’s counsel was not ineffective for failing to move to suppress his

custodial statements. See Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (the

right to remain silent can be waived when the waiver is made knowingly and


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voluntarily). And, given the police officers’ consistent testimony regarding

firearms found at the crime scene, the post-conviction relief court did not

unreasonably apply Strickland in concluding Thompson’s counsel’s investigation

and questioning was sound trial strategy and, in the alternative, Thompson failed to

establish prejudice. See Strickland, 466 U.S. at 687-89.

      2. Thompson also argues the PCR court unreasonably rejected his claim that

the government used false evidence—in the form of an altered recording of his

custodial statement—to secure his conviction. The two transcripts Thompson

points to, however, both contain Thompson’s full interview with the police. The

government made one transcript from the recording of the interview while

Thompson’s attorney obtained the other. The PCR court reasonably found that any

differences between the transcripts were minimal and due not to redactions, but to

variations in formatting. Those findings are not “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). Moreover, the redacted transcript prepared

by the government was not admitted into evidence.

      3. As there were no disputed material facts presented to the PCR court, the

court “could have reasonably concluded that the evidence already adduced was

sufficient to resolve” any factual questions related to Thompson’s claims, and

therefore that court’s denial of Thompson’s request for an evidentiary hearing was


                                          3
not unreasonable. Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012).

Likewise, as Thompson’s petition could be resolved on the record, the district

court did not abuse its discretion in denying Thompson’s request for an evidentiary

hearing. Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007); Totten v. Merkle, 137


F.3d 1172, 1176 (9th Cir. 1998).

      AFFIRMED.




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