                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 12 2012

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




                            FOR THE NINTH CIRCUIT



DEAN C. KIENHOLZ,                                No. 10-35280

              Petitioner,                        D.C. No. 3:08-CV-00040-KI

  v.
                                                 MEMORANDUM *
MARK NOOTH,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                            Submitted October 10, 2012 **
                                 Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

       Dean Kienholz appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging Oregon convictions arising out of a fatal motor vehicle

accident. 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).
      The Oregon court reasonably applied Miranda v. Arizona, 384 U.S. 436

(1966), when it held that Kienholz was not in police custody at the hospital

emergency room until the police detective arrested him. Custody exists if a

reasonable person in the circumstances surrounding the interrogation would “have

felt he or she was not at liberty to terminate the interrogation and leave.”

Thompson v. Keohane, 516 U.S. 99, 112 (1995). Although Kienholz was strapped

to the hospital bed for treatment of his injuries, this was not done at the instance of

the police. It was part and parcel of his emergency treatment. The questioning

detective came and went from the room, as did medical personnel. No officer

stood guard near the room. The Oregon court’s ruling that Kienholz was not in

custody until he was placed under arrest is not an unreasonable application of the

facts or law.

      The statements Kienholz made after he invoked the right to counsel do not

run afoul of Miranda because he volunteered them; they were not prompted by

police questioning. The state court reasonably held that the statements were

admissible. Arizona v. Roberson, 486 U.S. 675, 680-81 (1988); Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981).

      AFFIRMED.




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