Jose Abel Bardales v. Nancy Howton

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NOT FOR PUBLICATION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
JOSE ABEL BARDALES,
Petitioner - Appellant,
v.
NANCY HOWTON,
Respondent - Appellee.
No. 10-35965
D.C. No. 6:07-cv-06358-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief Judge, Presiding
Submitted September 27, 2011**
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Oregon state prisoner Jose Abel Bardales appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Bardales contends that the state court’s decision to admit at trial statements
FILED
OCT 4 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-35965 2
he made to a police officer violated his Fifth and Fourteenth Amendment rights
under Miranda v. Arizona, 384 U.S. 436 (1966). The state court’s decision was not
based on an unreasonable determination of the facts and was neither contrary to,
nor an unreasonable application of, clearly established law as determined by the
Supreme Court of the United States. See 28 U.S.C. § 2254(d); Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (no Miranda warning necessary
because defendant was not in custody or otherwise deprived of his freedom of
action in any significant way) (internal quotation marks omitted).
Bardales also contends that his sentence violates the Eighth Amendment
because it is grossly disproportionate to the severity of his crime. The state court’s
determination that the sentence did not violate the Eighth Amendment was neither
contrary to, nor an unreasonable application of, clearly established law as
determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d);
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (noting that the only “clearly
established law” in Eighth Amendment cases is the gross disproportionality
principle, which is applicable only in “exceedingly rare” and “extreme” cases).
AFFIRMED.

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