Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

MEMORANDUM^* 

Michael Marsh, an Oregon state prisoner, appeals the district court's dismissal of his habeas corpus petition. Marsh alleges that the state trial court erred in failing to conduct a Jackson v. Denno, 378 U.S. 368 (1964), hearing as to the voluntariness of his confession to possessing a weapon while an inmate.

We review de novo the denial of a petition for writ of habeas corpus. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

During a disciplinary hearing conducted by the Oregon State Penitentiary, Marsh confessed to possessing a weapon while an inmate during a disciplinary hearing conducted by the Oregon state penitentiary. Marsh was not advised of his Miranda rights before making the statement. At the state trial for violating Or.Rev.Stat. Sec. 166.275, the court admitted Marsh's confession for purposes of impeaching his testimony. The trial court failed to conduct a Jackson v. Denno hearing prior to allowing the confession to be introduced into evidence.

Voluntary statements are admissible for impeachment purposes, even though the statements were not preceded by Miranda warnings. See, e.g., Harris v. New York, 401 U.S. 222 (1971). However, an accused is constitutionally entitled to have the trial court rule on the question of voluntariness. See Jackson v. Denno, 378 U.S. 368 (1964). No post-crime admission can be presented against the accused unless it is voluntary. See Mincey v. Arizona, 437 U.S. 385, 398 (1978).

We must determine whether the trial court's failure to provide a hearing on the voluntariness of Marsh's confession requires that the state re-examine the voluntariness issue in a post facto hearing.

Although the Supreme Court required a post facto voluntariness hearing in Jackson v. Denno, the Court did not mandate that such relief be granted in all cases in which a voluntariness hearing was not conducted prior to admitting a confession into evidence. Rather, the Court indicated that factual conflicts which existed in the case regarding the circumstances of the confession necessitated such recourse. Id. at 391-94.

The instant case does not present the evidentiary conflicts extant in Jackson v. Denno. The sole ground on which Marsh alleges that his confession before the disciplinary board was coerced is his belief that " [t]he way the [ ] rules work is that if a prisoner pleads guilty he serves six months in segregation, if he pleads not guilty he serves one year segregation [and] the possibility of the committee finding a prisoner not guilty of this type of rule violation is non-existent." No factual dispute exists as to the disciplinary hearing or the conduct of the disciplinary committee. Thus, our "task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards." Id. at 391.

Coercive overreaching by the government "is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986).

Marsh alleges nothing in the way of actual coercive conduct during the course of the disciplinary hearing. He does not contend that the disciplinary committee induced his confession through express promises of more lenient treatment, nor does he suggest that the physical circumstances of the hearing were in any way coercive. He has not supported his contention that the disciplinary committee will never find an inmate innocent of wrongful conduct. Marsh merely indicates that he confessed because of his subjective and uncommunicated belief that he would be sanctioned less severely by confessing than he would if he professed his innocence.

Marsh has failed to allege a basis upon which the confession may be found involuntary. No post facto voluntariness hearing is required. The habeas corpus petition was properly dismissed.

AFFIRMED.