                                                                             FILED
                            NOT FOR PUBLICATION                                OCT 4 2011

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




                            FOR THE NINTH CIRCUIT



JOSE ABEL BARDALES,                               No. 10-35965

               Petitioner - Appellant,            D.C. No. 6:07-cv-06358-AA

  v.
                                                  MEMORANDUM *
NANCY HOWTON,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, Chief Judge, Presiding

                          Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Oregon state prisoner Jose Abel Bardales appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have

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

       Bardales contends that the state court’s decision to admit at trial statements

          *
             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).
he made to a police officer violated his Fifth and Fourteenth Amendment rights

under Miranda v. Arizona, 384 U.S. 436 (1966). The state court’s decision was not

based on 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); Oregon v.

Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (no Miranda warning necessary

because defendant was not in custody or otherwise deprived of his freedom of

action in any significant way) (internal quotation marks omitted).

      Bardales also contends that his sentence violates the Eighth Amendment

because it is grossly disproportionate to the severity of his crime. The state court’s

determination that the sentence did not violate the Eighth Amendment 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);

Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (noting that the only “clearly

established law” in Eighth Amendment cases is the gross disproportionality

principle, which is applicable only in “exceedingly rare” and “extreme” cases).

      AFFIRMED.




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