                                                                           FILED
                            NOT FOR PUBLICATION                             APR 28 2011

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




                            FOR THE NINTH CIRCUIT



STEVEN LEE VARNUM,                               No. 09-15350

               Petitioner - Appellant,           D.C. No. 2:04-cv-02659-GEB-
                                                 CHS
  v.

RICHARD KIRKLAND,                                MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                             Submitted April 20, 2011 **


Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       California state prisoner Steven Lee Varnum appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

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


          *
             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).
      Varnum contends that the state court’s denial of his motion to suppress his

confession was a violation of his Fifth Amendment right to silence and counsel

under Miranda v Arizona, 384 U.S. 436 (1966). The state court denial of

Varnum’s motion was not an unreasonable determination of the facts and was

neither contrary to, nor an unreasonable application of, clearly established law as

determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d);

Davis v. United States, 512 U.S. 452, 459 (1994) (invocation of Miranda right to

counsel must be unambiguous such that a reasonable officer in light of the

circumstances would understand the statement to be invoking the right to counsel).

      AFFIRMED.




                                          2                                    09-15350
