Villalon v. Calderon

130 F. App'x 126

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2005
• Docket: No. 03-57153; D.C. No. CV-01-03116-CJC
• Status: Published

Opinion

MEMORANDUM

**

Petitioner-Appellant Jose Manuel Villalon (‘Villalon”) appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. In his petition, Villalon challenges his conviction for possession of methamphetamine and being under the influence of methamphetamine. Villalon claims that his due process rights were violated by the trial judge’s failure to give the jury a limiting instruction on the use of incriminating statements Villalon made to his parole officer during a custodial interrogation in which Villalon was not re-advised of his constitutional rights. The district court denied Villalon’s habeas petition after concluding that there was no violation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and thus no need for a limiting instruction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Miranda re-advisement is not required “simply because there is a break in questioning,” where the defendant was previously properly advised and had waived his Miranda rights. People v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir.1995); see also United States v. Rodriguez-Preciado, 399 F.3d 1118, 1130 (9th Cir.2005) (“[Fjailure to re-administer warnings on the second day does not automatically render any of the statements made that day inadmissible.”). Here, the arresting officer advised Villalon of his Miranda rights, which Villlalon properly waived. Under the totality of these circumstances, we find that Villalon has failed to demonstrate that during his interview by the parole officer less than two days later “the circumstances changed so seriously that his answers no longer were voluntary.” See Wyrick v. Fields, 459 U.S. 42, 47, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982).

Moreover, even if the admission of the parole officer’s testimony was erroneous, the overwhelming evidence against Villalon establishes his guilt beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Milton v. Wainwright, 407 U.S. 371, 377-78, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). Further, the evidence indicates, beyond a reasonable doubt, that the jury would have convicted Villalon even if the trial judge had given the requested limiting instruction. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Accordingly, the district court’s denial of Villalon’s petition for writ of habeas corpus is AFFIRMED.

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