Hernandez Anzures v. Smith

11 F. App'x 968

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2001
• Docket: No. 99-55937; D.C. No. CV-97-02742-RSWL-
• Status: Published

Opinion

MEMORANDUM

**

Petitioner, Arthur Hernandez Anzures, appeals the district court’s denial of his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Petitioner’s Fifth Amendment rights were not violated by the admission of testimony from Winn and Aragon. Under Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), questioning by an undercover government agent does not constitute a “custodial interrogation.” Therefore, the rule in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that custodial interrogation must cease once a defendant has invoked his right to counsel does not apply in this case. See United States v. Stubbs, 944 F.2d 828, 832 (11th Cir.1991).

The Sixth Amendment issue presents a closer question. Even assuming, however, that Petitioner has shown that the admission of Jackson’s testimony violated the Sixth Amendment, he has not shown that it had a “substantial and injurious effect” on the outcome of the case. See Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Given the other evidence introduced at trial, including Petitioner’s statement to Winn and Aragon that he killed the victim, his admitted sexual fantasies about the victim and the fact that he had touched her sexually several times before, evidence indicating that Petitioner’s pliers were in the victim’s bedroom, and Petitioner’s lie about when he and the victim were in the laundry room, any error was harmless.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts in this circuit except as provided by Ninth Circuit Rule 36-3.