                                                                               FILED
                             NOT FOR PUBLICATION                                AUG 26 2010

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




                             FOR THE NINTH CIRCUIT



JACK L. EARL, Jr.,                                 No. 08-35684

               Petitioner - Appellant,             D.C. No. 3:02-cv-00224-HRH

  v.
                                                   MEMORANDUM *
CRAIG TURNBULL,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Alaska
                 H. Russel Holland, Senior District Judge, Presiding

                              Submitted July 27, 2010 **
                                 Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Jack Earl appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. A jury convicted Earl of first degree

murder for killing his roommate in 1993. Earl contends the state court should have


        *
             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).
suppressed his confession to the murder because he was not read the list of rights

provided in Miranda v. Arizona, 384 U.S. 436, 444 (1966). He also argues police

violated his due process rights by coercing him into an involuntary confession.

Earl additionally alleges that he was prejudiced by courtroom security placement

during trial, and that he exhausted in state court a claim that he was denied a fair

trial on the basis of one witnesses’ testimony.

      The state court’s determination that Earl was not in custody must be upheld

under the standards we are to apply in reviewing state court in-custody decisions.

See Yarborough v. Alvarado, 541 U.S. 652, 664-65 (2004). Police told Earl on

several occasions that he was free to leave, that he was not under arrest, and that he

did not have to answer any questions. Police also offered to drive Earl anyplace in

town but he refused. Although there were some indicators that Earl was in

custody, the state court’s determination that he was not was a reasonable one. See

id.

      The state court also reasonably determined that Earl provided his confession

voluntarily. See Dickerson v. United States, 530 U.S. 428, 433-34 (2000). At the

time of the interrogation, Earl was 36 years old and had prior experience with law

enforcement. See Withrow v. Williams, 507 U.S. 680, 693 (1993); Doody v.

Schriro, 596 F.3d 620, 638-40 (9th Cir. 2010) (en banc). Earl was also told he did


                                           2
not have to answer any questions yet he continued to do so. There is no indication

that police used coercive tactics to overbear Earl’s will.

      The placement of an additional courtroom security officer by the jury door

during the testimony of Earl and two of his witnesses did not deprive Earl of a fair

trial. See Holbrook v. Flynn, 475 U.S. 560, 569-72 (1986). There is no indication

the additional guard did anything to call undue attention to himself. Earl provided

no evidence the jury was even aware of the extra officer, or that it inferred the extra

guard meant that Earl and his witnesses were incarcerated.

      Earl’s claim that he was prejudiced by the testimony of Cyril Reape is

unexhausted because he did not fairly present the claim to the Alaska Supreme

Court. See Peterson v. Lampert, 319 F.3d 1153, 1155-57 (9th Cir. 2003) (en banc).

Earl’s first petition to the state court did not discuss this claim. See Baldwin v.

Reese, 541 U.S. 27, 32 (2004). When the district court stayed the federal

proceedings to allow Earl another chance at exhaustion, he again failed to present

the claim because he sought only an advisory opinion from the Alaska court.

      AFFIRMED.




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