Michael Mullicane v. Kenneth Clark , 550 F. App'x 366 ( 2013 )

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NOT FOR PUBLICATION DEC 16 2013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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