Unpublished Disposition, 937 F.2d 611 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 611 (9th Cir. 1991)

Anthony M. CORNEJO, Petitioner-Appellant,v.STATE OF CALIFORNIA, James Rowland, John Van de Kamp,Respondents-Appellees.

No. 90-55900.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1991.Decided July 12, 1991.

Before POOLE, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM* 

Anthony M. Cornejo, a California state prisoner, appeals the district court's denial of his petition for writ of habeas corpus challenging his state court murder conviction. Cornejo contends the district court erred in dismissing his petition by failing to review properly the admissibility of certain pretrial statements he had made to the police without being advised of his Miranda1  rights. Cornejo also contends the district court erred in failing to conduct a de novo review of the record and in failing to appoint counsel. We affirm.

DISCUSSION

Cornejo first contends the district court erred in failing to review de novo the findings of the United States Magistrate Judge. This contention is meritless. The district court's order adopting the findings of the United States Magistrate Judge states that "having reviewed the record and pleadings as well as the findings of the United States Magistrate, [the court] concurs with and adopts those findings." This language is sufficient to demonstrate that the district court did indeed conduct a de novo review of the record.

Cornejo next contends the United States Magistrate Judge and in turn the district court failed to evaluate properly the admissibility of certain pretrial statements he had made to the police without being advised of his Miranda rights. We review a district court's denial of a petition for writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Id.

At Cornejo's preliminary hearing of August 5-6, 1986, the presiding state municipal court judge ruled that Cornejo had consented to go to the Whittier Police Station and that he was reasonably detained by the police because a murder was involved. The municipal court judge also ruled, however, that the circumstances surrounding Cornejo's interview or interrogation at the Whittier Police Station constituted a custodial arrest, and therefore that Cornejo's statements during this session would be excluded. Upon a motion under section 1538.5(j) of the California Penal Code, the California Superior Court reviewed de novo at trial the testimony at the preliminary hearing and concluded that the statements were admissible.

Cornejo contends the district court erroneously gave deference to the California Superior Court's legal conclusion that he was not in custody when the alleged prejudicial statements were made rather than to the factual findings of the preliminary hearing municipal court judge. The district court determined that "the record ... does not indicate that [Cornejo] was in any way coerced or that his statements were made while in custody and should have been preceeded [sic] by a Miranda warning." Cornejo asserts that the district court should have given deference to the municipal court judge's factual findings because the statutory provision by which the California Superior Court reconsidered the suppression motion, Cal.Penal Code Sec. 1538.5(j), is not applicable in cases in which a party moves to suppress evidence on the fifth amendment grounds. We reject this contention. In the realm of federal habeas appeals, "errors of state law do not concern us unless they rise to the level of a constitutional violation." Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). The Superior Court's reconsideration of the municipal court judge's ruling, even if procedurally erroneous under California law, does not rise to the level of a constitutional violation. In addition, we find the district court's legal conclusion that Cornejo was not in custody at the time of his interview to be supported by the record. The record indicates that Cornejo initiated the contact with the police, that he voluntarily chose to go with the police to the Whittier Police Station, and that he was informed by Detective Fredrich at the station that he was not in custody and was free to leave at any time. Under these circumstances, we agree with the district court's finding that Cornejo was in the same position as the person who voluntarily stops at the police station to give information. See Miranda v. Arizona, 384 U.S. 436, 477-78 (1966).

Cornejo also contends the district court erred in not reaching his claim that his transportation and confinement at the Whittier Police Station violated his fourth amendment rights. We reject this claim as well. The district court clearly found that during this transportation, " [Cornejo] was not in custody ... and came willingly." This determination is consistent with the preliminary hearing municipal court judge's factual finding that Cornejo's transportation to the police station was consensual, a finding implicitly adopted by the California Superior Court.

Finally, Cornejo contends the district court erred in denying his request for appointment of counsel. We review a district court's decision to grant or deny a request for appointment of counsel for an abuse of discretion. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986).

Title 18 U.S.C. § 3006A(a) (2) (B) authorizes a district court to appoint counsel to represent a habeas corpus petitioner whenever "the court determines that the interests of justice so require...." An indigent state prisoner applying for federal habeas corpus relief is not entitled to appointed counsel unless an evidentiary hearing is required, Knaubert, 791 F.2d at 728, or the circumstances of the particular case indicate that appointed counsel is necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). Here, no evidentiary hearing was required because the facts were not in dispute. In addition, Cornejo's district court pleadings indicate that he had a good understanding of the issues and the ability to present forcefully and coherently his contentions. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). We therefore are unable to find that the district court abused its discretion in denying Cornejo's motion for appointed counsel.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Miranda v. Arizona, 384 U.S. 486 (1966)