                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 21 2010

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




                            FOR THE NINTH CIRCUIT



JOSIAH E. SMITH,                                  No. 08-55451

               Petitioner - Appellant,            D.C. No. 2:06-cv-05305-VBF-SH

  v.
                                                  MEMORANDUM *
L. E. SCRIBNER, Warden,

               Respondent - Appellee.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                              Submitted May 26, 2010 **
                              San Francisco, California

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       California state prisoner Josiah E. Smith appeals from the district court’s

judgment denying his section 2254 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).
      Smith contends first that inculpatory statements attributed to him by the

police were per se inadmissible under the rule of Miranda v. Arizona, 384 U.S. 436

(1966), and Edwards v. Arizona, 451 U.S. 477 (1981), as his request to speak to a

parent operated as a request for counsel. This argument does not afford a basis for

habeas relief. The Supreme Court has not held that the request to speak to a parent

or grandparent is tantamount to a request for counsel, so as to render any

statements made following such a request per se inadmissible under the Fifth and

Fourteenth Amendments. See 28 U.S.C. §2254(d)(1); Fare v. Michael C., 442

U.S. 707, 719 (1979) (“The per se aspect of Miranda was thus based on the unique

role the lawyer plays in the adversary system of criminal justice in this country.”);

see also People v. Lessie, 47 Cal.4th 1152, 1163-64, 1169 (2010) (Fare left no

room for the proposition that a minor’s request for a parent renders his statements

per se inadmissible under Miranda; waiver in such cases must be evaluated by

looking at the totality of the circumstances).

      Smith next contends that his alleged statements were inadmissible under a

totality of circumstances analysis. This argument also fails. The California Court

of Appeal was not objectively unreasonable in concluding that Smith’s Miranda

waiver was voluntary where the record reveals an absence of police coercion

during Smith’s brief interrogation. See 28 U.S.C. §2254(d)(1); Williams v. Taylor,

529 U.S. 362 (2000); Fare, 442 U.S. at 725 (totality of circumstances analysis is
appropriate to determine validity of juvenile’s Miranda waiver); Colorado v.

Connelly, 479 U.S. 157, 167, 169-70 (1986) (coercive police activity is necessary

to a finding of involuntariness).

      Moreover, even if admission of Smith’s alleged statements had been

erroneous, the error cannot be said to have had a substantial and injurious effect on

the jury’s verdict, given the overwhelming independent evidence introduced

against Smith at trial and the prosecution’s limited reliance on Smith’s statements.

See Fry v. Pliler, 551 U.S. 112 (2007); Brecht v. Abrahamson, 507 U.S. 619

(1993).

      AFFIRMED.
