Alamedia

MEMORANDUM **

This case arises from the state conviction of David Smith for the murder of Drake Hansen. Pursuant to a certificate of appealability granted by this court, Smith appeals the district court’s denial of habeas corpus relief on three claims. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

Smith first argues that the trial court improperly admitted tape recorded statements that he made to the police during an interview at the stationhouse, in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Contrary to the state’s position, this claim *883 was not procedurally defaulted because it was summarily denied on the merits by the California Supreme Court. Harris v. Superior Court, 500 F.2d 1124 (9th Cir. 1974) (en banc). Upon independent review of the record, however, we hold that Smith has not shown that it was an unreasonable application of Supreme Court precedent to conclude that he was not in custody when these statements were made. See California v. Beheler, 468 U.S. 1121 , 1125, 103 S.Ct. 3517 , 77 L.Ed.2d 1275 (1983) (per curiam); Oregon v. Mathiason, 429 U.S. 492 , 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977) (per curiam);…