Monterio Tyrone Pinckney v. A. K. Scribner; Attorney General of California

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTERIO TYRONE PINCKNEY,
Petitioner - Appellant,
v.
A. K. SCRIBNER; ATTORNEY
GENERAL OF CALIFORNIA,
Respondents - Appellees.
No. 09-17351
D.C. No. 2:05-cv-00144-FCD-
CHS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted October 4, 2010**
San Francisco, California
Before: HUG, RYMER and N.R. SMITH, Circuit Judges.
Monterio Tyrone Pinckney appeals the district court’s denial of his habeas
corpus petition under 28 U.S.C. § 2254. We affirm.
FILED
OCT 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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I
The state trial court’s determination that Pinckney’s confession was
voluntary is neither contrary to, nor an unreasonable application of, Supreme Court
precedent. The Supreme Court has made clear that “coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v.
Connelly, 479 U.S. 157, 167 (1986). To the extent Pinckney was tired, hungry or
under the influence, it was on account of his own actions, not those of the officers.
He failed to show that the police “exploited this weakness with coercive tactics.”
Id. at 165.
The interview was relatively short for a murder suspect. Pinckney was
provided water and soda, along with chips, which he did not eat. The state court
credited the officers’ testimony that he was not promised anything more; this was
not unreasonable. While Pinckney zoned in and out a few times, he was
responsive throughout the interview and was not subjected to repeated or
prolonged questioning. No Supreme Court precedent renders a confession
involuntary in these circumstances.
II

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3
Pinckney’s ineffective assistance claim fails for the same reason. It was not
unreasonable to forego an argument on direct appeal based on involuntariness of
the confession given its lack of merit. Strickland v. Washington, 466 U.S. 668, 689
(1984). By the same token, “there is [not] a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
AFFIRMED.

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