Avila

MEMORANDUM **

Gamaliel Avila, a California state prisoner, appeals the denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), and we affirm.

Avila contends that counsel’s assertion of his Fifth Amendment right to counsel at arraignment was sufficient to bar further police questioning of any other criminal activity and, as a result, his confession regarding an offense arising out of a different criminal incident that was subsequently included in an amended indictment was inadmissible. We disagree.

This circuit has “never held that Miranda rights may be invoked antieipatorily outside the context of custodial interrogation.” United States v. Wright, 962 F.2d 953, 955 (9th Cir.1992); see McNeil v. Wisconsin, 501 U.S. 171 , 182 n. 3, 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991) (suggesting that Miranda rights cannot be invoked in advance, outside of a custodial interrogation setting). Consequently, Avila’s anticipatory invocation of his Fifth Amendment right to counsel was insufficient.

Accordingly, the district court properly denied Avila’s section 2254 petition because the…