Phyll Mendacino, Petitioner-appellant, v. Hoyt C. Cupp, Respondent-appellee, 949 F.2d 399 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 949 F.2d 399 (9th Cir. 1991)

Submitted Nov. 4, 1991. *Decided Dec. 5, 1991


Before TANG, O'SCANNLAIN and RYMER, Circuit Judges.


ORDER** 

Having considered the arguments for the appellant and the appellee, we conclude that the district court properly dismissed Mendacino's petition for the writ of habeas corpus.

The state court post-conviction proceeding made a factual finding that the state did not make any promises to secure the testimony of the main witness against Mendacino. This finding is presumed correct and we conclude no exception applies to rebut this presumption. 28 U.S.C. § 2254(d).

Mendacino's confession to this same witness was voluntary and properly used against him at trial. United States v. Patterson, 812 F.2d 1188 (9th Cir. 1987), cert. denied, 485 U.S. 922 (1988).

Consequently, we affirm the dismissal of Mendacino's petition for the writ of habeas corpus.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

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