Dean C. Kienholz v. Mark Nooth

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NOT FOR PUBLICATION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
DEAN C. KIENHOLZ,
Petitioner,
v.
MARK NOOTH,
Respondent - Appellee.
No. 10-35280
D.C. No. 3:08-CV-00040-KI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted October 10, 2012**
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.
Dean Kienholz appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition challenging Oregon convictions arising out of a fatal motor vehicle
accident. We affirm.
FILED
OCT 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
The Oregon court reasonably applied Miranda v. Arizona, 384 U.S. 436
(1966), when it held that Kienholz was not in police custody at the hospital
emergency room until the police detective arrested him. Custody exists if a
reasonable person in the circumstances surrounding the interrogation would “have
felt he or she was not at liberty to terminate the interrogation and leave.”
Thompson v. Keohane, 516 U.S. 99, 112 (1995). Although Kienholz was strapped
to the hospital bed for treatment of his injuries, this was not done at the instance of
the police. It was part and parcel of his emergency treatment. The questioning
detective came and went from the room, as did medical personnel. No officer
stood guard near the room. The Oregon court’s ruling that Kienholz was not in
custody until he was placed under arrest is not an unreasonable application of the
facts or law.
The statements Kienholz made after he invoked the right to counsel do not
run afoul of Miranda because he volunteered them; they were not prompted by
police questioning. The state court reasonably held that the statements were
admissible. Arizona v. Roberson, 486 U.S. 675, 680-81 (1988); Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981).
AFFIRMED.

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