Josiah E. SMITH, Petitioner-Appellant, v. L.E. SCRIBNER, Warden, Respondent-Appellee, 384 F. App'x 672

MEMORANDUM California state prisoner Josiah E. Smith appeals from the district court’s judgment denying his

section 2254 petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Smith contends first that inculpatory statements attributed to him by the police were per se inadmissible under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as his request to speak to a parent operated as a request for counsel. This argument does not afford a basis for habeas relief.

The Supreme Court has not held that the request to speak to a parent or grandparent is tantamount to a request for counsel, so as to render any statements made following such a request per se inadmissible under the Fifth and Fourteenth Amendments. See 28 U.S.C. § 2254(d)(1); Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (“The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country.”); see also People v.

Lessie, 47 Cal.4th 1152, 1163-64, 1169, 104 Cal.Rptr.3d 131, 223 P.3d 3 (2010) (Fare left no room for the proposition that a minor’s request for a parent renders his statements per se inadmissible under Miranda; waiver in such cases must be evaluated by looking at the totality of the circumstances). Smith next contends that his alleged statements were inadmissible under a totality of circumstances analysis. This argument also fails.

The California Court of Appeal was not objectively unreasonable in concluding that Smith’s Miranda waiver was voluntary where the record reveals an absence of police coercion during Smith’s brief interrogation. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Fare, 442 U.S. at 725, 99 S.Ct. 2560 (totality of circumstances analysis is appropriate to determine validity of juvenile’s Miranda waiver); Colorado v. Connelly, 479 U.S. 157, 167, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (coercive police activity is necessary to a finding of involuntariness).

Moreover, even if admission of Smith’s alleged statements had been erroneous, the error cannot be said to have had a substantial and injurious effect on the jury’s verdict, given the overwhelming independent evidence introduced against Smith at trial and the prosecution’s limited reliance on Smith’s statements. See Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.