                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 11 2010

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




                            FOR THE NINTH CIRCUIT



RUSSELL W. PIERCE,                                No. 07-55920

              Petitioner - Appellant,             D.C. No. CV-05-05277-SGL

  v.
                                                  MEMORANDUM *
JAMES D. HARTLEY,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen G. Larson, District Judge, Presiding

                              Submitted March 1, 2010
                                Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY,** District
Judge.

       Russell Pierce appeals the district court’s denial of his habeas corpus petition

under 28 U.S.C. § 2254. He claims that effective counsel would have moved to

suppress statements elicited in violation of Miranda v. Arizona, 384 U.S. 436

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
(1966), and that because his counsel failed to do this, his no-contest plea was

unknowing and involuntary. We certified these issues for appeal, and affirm.

      Pierce’s first state habeas petition, which raised an ineffective assistance of

counsel claim, was denied on the merits. Because the trial court’s decision was

unreasoned, we review it independently to determine whether it was contrary to, or

an unreasonable application of, clearly established United States Supreme Court

precedent. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). We conclude it

was not. There is no showing that counsel acted unreasonably in negotiating a plea

with a fixed sentence that substantially lessened Pierce’s exposure, rather than

pursuing a Miranda issue that was destined to fail. Strickland v. Washington, 466

U.S. 668, 687-89 (1984). Pierce went to the police station voluntarily, was told he

was not under arrest and was free to leave, and voluntarily started confessing to

burglaries. No authority indicates that his non-custodial status somehow changed

once he confessed to two burglaries, or that the trial court would have accepted any

such argument.1 Pierce’s interview lasted approximately forty-five minutes, with a

five-minute break. He was not coerced into continuing to confess; that he was

brought a glass of water when a drinking fountain was nearby does not suggest

      1
        Cf., e.g., Thompson v. Keohane, 516 U.S. 99, 102-04 (1995) (defendant
confessed to killing his wife but was allowed to leave); Oregon v. Mathiason, 429
U.S. 492, 493-94 (1977) (defendant was released after confessing to theft);
Yarborough v. Alvarado, 541 U.S. 652, 658-59 (2004) (defendant left after
confessing to an attempted robbery and murder).
otherwise. Nor would competent counsel have moved to suppress just because

there was “nothing to lose.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1419-20

(2009). Finally, Pierce points to Missouri v. Seibert, 542 U.S. 600 (2004), but that

decision offered no prospect of success for a motion to suppress. Not only was

Seibert not on the books at the time, but unlike what happened here, it involved

questioning after the suspect had been arrested but before Miranda warnings were

given.

         Pierce likewise made no showing of “a reasonable probability that, but for

counsel’s errors, he would not have pleaded [no contest] and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). At most he now

suggests that he might have entered into a more favorable plea, but this is neither

substantiated in the record nor sufficient. Id.

         AFFIRMED.
