Kenneth SINGLETON, Petitioner-Appellant, v. James E. TILTON, Acting Secretary, California Department of Corrections and Rehabilitation; Dee Adams, Warden, Corcoran State Prison, Respondents-Appellees, 234 F. App'x 745

MEMORANDUM Kenneth Singleton appeals the district court’s denial of his habeas petition challenging his California conviction and sentence for murder with a firearm. The principal contention with respect to the guilt phase is that his taped confession was obtained involuntarily. To render the confession involuntary, the police activity leading up to it must have been coercive. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

The state court of appeals in the last reasoned state court decision found that the petitioner reinitiated communication with the officers after he had asked for counsel, that he understood the nature of his actions, and that he was deprived of no physical necessities or communications during the relevant period of police custody. The last reasoned state court decision was not contrary to clearly established federal law. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). 28 U.S.C. § 2254(d); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

See also Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). Neither did the state court unreasonably apply Edwards, or any other relevant Supreme Court authority. On the record of the case, it could have reasonably concluded that petitioner’s confession was voluntary, given the officers’ willingness to provide any basic necessities at petitioner’s request as well as the petitioner’s previous experiences as a youth offender.

Even assuming that the confession was coerced, the error was harmless, as the defendant himself testified on direct and the confession was used only as impeachment as to secondary matters. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Petitioner’s sentencing challenge is premised upon the state trial court’s failure to realize that under state law it had some discretion to modify the otherwise statutorily mandated sentence of 50 years-to-life. The error by the state court in this regard was not a violation of federal law.

The same is true with respect to petitioner’s claim that the state appellate court should have remanded the matter for resentencing. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). To the extent that petitioner contends that he was denied the effective assistance of counsel in counsel’s failure to recognize any trial court discretion, the petitioner cannot show prejudice as required under the controlling standard of Strickland v. Washington, 466 U.S. 668, 687, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The issue was addressed on direct appeal, and the state court held that the sentence was not so disproportionate to the crime that it violated California’s constitutional limits on cruel and unusual punishment. See People v. Dillon, 34 Cal.3d 441, 478, 194 Cal.Rptr. 390, 668 P.2d 697 (1983). Petitioner also raises a claim under the Eighth Amendment of the United States Constitution. The factors upon which he relies, including youth and mental illness, must be considered as mitigating factors under federal law only in the death penalty context. Harmelin v.

Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.