                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 26 2011

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




                            FOR THE NINTH CIRCUIT



SHAUNTAY JERMAINE WHEATON,                       No. 09-17626

              Petitioner - Appellant,            D.C. No. 3:06-cv-00397-LRH-
                                                 VPC
  v.

MCDANIEL,                                        MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                      Argued and Submitted January 10, 2011
                            San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Petitioner Shauntay Jermaine Wheaton (Wheaton) challenges the district

court’s denial of his habeas petition. Wheaton contends that the Nevada Supreme

Court unreasonably applied Miranda v. Arizona, 384 U.S. 436 (1966), in holding

that his confession was voluntary. Wheaton also posits that habeas relief is



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
warranted because of prosecutorial misconduct and instructional error due to an

erroneous implied malice jury instruction.




1.    The Nevada Supreme Court’s decision that Wheaton’s confession was

voluntary was not an unreasonable application of Miranda, as the Nevada Supreme

Court took “into consideration the totality of all the surrounding circumstances-

both the characteristics of the accused and the details of the interrogation.”

Dickerson v. United States, 530 U.S. 428, 434 (2000) (citations and internal

quotation marks omitted). Moreover, Wheaton’s voluntary statement to a

corrections assistant was admissible independent of whether Wheaton’s confession

was voluntary. See Saleh v. Fleming, 512 F.3d 548, 551-52 (9th Cir. 2008).




2.    Given the state trial court’s instruction for the jury to disregard the

prosecutor’s Biblical reference and the overwhelming evidence against Wheaton,

the prosecutor’s isolated Biblical reference and alleged vouching did not “so

infect[ ] the trial with unfairness as to make the resulting conviction a denial of due

process.” Hein v. Sullivan, 601 F.3d 897, 912 (9th Cir. 2010) (citation and internal

quotation marks omitted); see also Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir.

2010) (“We presume the jury followed the court’s instructions.”).


                                           2
3.    The Nevada Supreme Court’s ruling that the implied malice instruction was

not an impermissible mandatory presumption was reasonable. The implied malice

instruction was a permissive inference that did not relieve the prosecution of its

burden of proof. See Francis v. Franklin, 471 U.S. 307, 314 (1985) (“A

permissive inference does not relieve the State of its burden of persuasion because

it still requires the State to convince the jury that the suggested conclusion should

be inferred based on the predicate facts proved.”). Because the jury found

Wheaton guilty of first degree murder, the implied malice instruction did not “so

infect[ ] the entire trial that the resulting conviction violate[d] due process, thus

rendering the trial fundamentally unfair.” Townsend v. Knowles, 562 F.3d 1200,

1209 (9th Cir. 2009) (citation and internal quotation marks omitted).

      AFFIRMED.




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