RAFAEL BARRETO V. WILLIAM KNIPP, WARDEN, No. 10-15591 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 23 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 10-15591 RAFAEL BARRETO, Petitioner - Appellant, D.C. No. 3:08-cv-02008-MHP v. MEMORANDUM* WILLIAM KNIPP, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding Submitted April 19, 2013** San Francisco, California Before: HAWKINS, GRABER and CHRISTEN, Circuit Judges. Rafael Barreto appeals the district court s denial of his petition for writ of habeas corpus. We review denial of Barreto s habeas petition de novo. DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). * 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). The last reasoned decision from state court separately analyzed both waiver of Barreto s Miranda rights and the voluntariness of his statements to the police. See Colorado v. Connelly, 479 U.S. 157, 163, 167 70 (1986). The state court therefore did not unreasonably apply clearly established federal law by conflating two distinct issues. See 28 U.S.C. § 2254(d). The state court concluded that Barreto knowingly and voluntarily waived his Miranda rights. At worst, fairminded jurists could disagree as to whether the state court s conclusion was correct. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Barreto is therefore not entitled to relief on his Fifth Amendment claim. Id. Barreto has not made a substantial showing that his statements to police were coerced and therefore that his Fourteenth Amendment rights were violated. See 28 U.S.C. § 2253(c)(2). Therefore, we decline to issue a certificate of appealability on this issue. See 28 U.S.C. § 2253(c)(1)(A). AFFIRMED. 2

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