                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL STEWART MULLICANE,                     No. 11-55199

              Petitioner - Appellant,          D.C. No. 2:09-cv-05179-ODW-JCG

  v.
                                               MEMORANDUM*
KENNETH CLARK,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                       Argued and Submitted August 8, 2013
                               Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and GEORGE, Senior
District Judge.**

       Michael Mullicane appeals the district court’s denial of his petition brought

pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253(c), and AFFIRM.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
      We review the California Court of Appeal’s written decision denying

Mullicane’s direct appeal, as that is the last reasoned decision addressing his

claims. See Johnson v. Williams, 133 S. Ct. 1088, 1094 fn.1 (2013); Cannedy v.

Adams, 706 F.3d 1148, 1157 (9th Cir. 2013). Our review is governed by the

highly deferential standard imposed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011).

The Voluntariness Claim.

      Mullicane was given Miranda warnings, requisite to establishing the

admissibility of statements he gave during the custodial interrogation. Dickerson

v. United States, 530 U.S. 428, 435 (2000). This “does not, of course, dispense

with the voluntariness inquiry.” Id. at 444. Voluntariness is determined by

looking to “the totality of all the surrounding circumstances—both the

characteristics of the accused and the details of the interrogation.” Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973).

      The state court found that, prior to making his statement, Mullicane was

informed he could not make a phone call, and that he did not make a phone call.

The state court erred in finding that Henderson’s instruction “to the jailer that

Mullicane should make no calls during the execution of the search warrant was

limited in time and scope as to the accused’s workplace, but not as to his lawyer.”


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This error is immaterial because (a) Mullicane was unaware of Henderson’s

instruction to the jailer, (b) the state court correctly determined that the jailer

informed Mullicane that he could not make a phone call, and (c) the state court’s

analysis assumed that Henderson’s instruction was “unclear” (i.e., that

Henderson’s instruction to the jailer was not limited in time and scope to

Mullicane’s workplace). The state court acknowledged Mullicane’s testimony of

his intent to call counsel, but noted that he never communicated that intent to the

jailer.

          The state court was incorrect to the extent that it concluded that Mullicane

expressly waived his Miranda rights in writing before proceeding with the

interview. The mistake is immaterial because, before proceeding with the

interview, Mullicane was advised of his rights, stated he understood his rights, and

invoked neither his right to counsel nor his right to remain silent, thereby implicitly

waiving his rights. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1262

(9th Cir. 2005) (“[A]n express waiver is not required for a valid Miranda

waiver.”).

          The state court acknowledged the letter from Mullicane’s counsel to

Henderson, noting that despite the letter announcing Mullicane had retained

counsel, Mullicane “neither asked to have his counsel present nor elected to remain


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silent during his arrest and custody.” The state court also noted Mullicane’s prior

arrests and convictions.

      The state court’s decision and analysis acknowledged factors and

circumstances both in favor of and adverse to Mullicane regarding the

voluntariness of his statement. None of the circumstances favoring Mullicane,

standing alone, requires a finding that his statement was involuntary. Given the

deference required of federal courts sitting in habeas review, we cannot conclude

that the state court’s totality of circumstances analysis was contrary to, or was an

unreasonable application of, clearly established federal law. Nor can we conclude

that the state court’s decision was based on unreasonable determinations of facts

material to that decision.

The Due Process Claim.

      Mullicane exhausted this federal claim–that his due process rights were

violated when he was denied his California Penal Code § 851.5 phone calls–by

citing to and relying upon Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), in

his direct appeal. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

      We assume, without so deciding, that § 851.5 creates a liberty interest. We

do so because the Constitution does not guarantee Mullicane due process

protections greater than that with which he was provided. See Sandin v. Conner,


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515 U.S. 472, 484 fn.5 (1995) (Resolution of the “anterior question” of whether a

person “possessed a liberty interest at all [is] unnecessary to the disposition of the

case” when no additional process is due.).

      The state court considered whether the violation of Mullicane’s § 851.5 right

to make a phone call rendered his statement involuntary. The state court noted

that, when read in its entirety, § 851.5 “recognizes that particular circumstances

may properly be weighed in balance with the rights guaranteed the accused.”

People v. Moreland, 15 Cal. App. 3d 269, 275 (1971). The state court’s balancing

of circumstances in considering Mullicane’s due process claim is consistent with

the Supreme Court’s due process jurisprudence, as that jurisprudence is the

foundation of the totality of circumstances test. See Dickerson, 530 U.S. at 434-

35; Brown v. Mississippi, 297 U.S. 278 (1936). The state court’s analysis

considered the § 851.5 violation, as well as Mullicane’s failure to notify the jailer

of his intent to use the phone to contact an attorney and his waiver of his rights. As

with Mullicane’s voluntariness claim, we cannot conclude that the state court’s

decision was contrary to, or was an unreasonable application of, clearly established

federal law.

      AFFIRMED.




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